Constitutional Law – Exam Outline

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					                          Constitutional Law – Exam Outline

FEDERALISM
  - Means of reception of UK law in Canada:
  - Settlement model: entire law is brought with settlers to the establishment of the first legislature. All statutory
     law and all common law. Statutes can be amended by imperial parliament or by legislatures acting within
     competence in colonies. Colonial legislatures are set up via King’s prerogatives and the moment of
     establishment is the moment of reception. NB. NS, PEI and NF fall under settlement, received British law
     through settlement
  - Conquest model: relevant to Ontario and Quebec. Under this model as a typical common law rule the pre-
     existing private law of the colony continues in force. Private law of New France, inherited from France
     (Napoleaonic tradition). The public law inherited from the UK tradition.
  - Happened over a long progression, beginning with Royal Proclamation 1763, English law imposed on Quebec
     after British conquest of New France.
  - Quebec Act 1774, restored to pre-conquest French civil law to quebec and the English criminal law was
     continued in force as was the general public law.
  - Expanded to territory of quebec to include what is now Ontario
  - No elected assembly for the province, governed by a governonr, similar function to a councillor
  - Constitutional Act 1791, separated the colony into Upper and Lower Canada to accommodate the dual-
     languages both prominent in province
  - Continuance of the law of the former Quebec until altered by the legislatures
  - Durham Report 1839
  - Institution of responsible government: debate within colonies, initially colony governed by a combination of
     executive appointed by the empire (selected by the governor) and a legislative assembly the problem was that
     legislature had no power. Led to rebellions and so Durham drafted this report with 2 recommendation:
     responsible government (responsible to general public) and the Union of 2 provinces.
  - Union act of 1840 fused the 2 provinces into a single legislature and the language to be used was English, with
     equal representation from upper and lower Canada (now called east and west). Durham thought that the
     assimilation was inevitable and the Union act was designed to speed up the process. Canada west’s population
     was lower than Canada east. The private laws were continued in force in each province
  - Confederation 1867: united provinces of Canada, Nova Scotai and NB in the Dominion of Canada for
     primarily economic reasons to ensure that the maritime provinces established their own unique identity. Way
     to accommodate the difference in population and ensure that west had sufficient represenatation in the
     legislature. Another concern was to preserve the language and culture of Canada East. Need to protect the 2
     sets of interests: concern of French Canada to reserve unqieu culture in the fact of English speaking population
     and the English speaking population is represented in the legislatures and the institutional arrangements.
     Established the bi-cameral national Parliament. Established a common market and allocated economic powers
     to federal Praliament to address concerns regarding threats, i.e. USA threat.
  - Power to veto law coming out of Parliament

CONSTITUTIONAL LAW IN A NUTSHELL
MACDONALD ARTICLE
  - Federalism: a system of government in which sovereignty is constitutionally divided between a central
     governing authority and its political constituent units (states or provinces).
  - The statute theory: the role of Constitution Act as a strictly legal instrument contributing to the evolution of
     full Canadian nationhood, and the final achievement of responsible government in a British colony.
     Constitution constituted a political entity called Canada. Advance the agenda of national defence, economic
     expansion, decolonization and responsible government.
  - The compact theory: the Constitution is a legislative expression of compromise between the founding peoples:
     English speaking and French speaking Canadians. Respecting the institutional arrangements adopted the
     linguistic and cultural duality. The legislative recognition of a covenant between 2 societies/peoples. A
     reconstituting moment of the territory. Quebec guaranteed certain protections and considered a province unlike
     any other (special treatment)
                         Constitutional Law – Exam Outline

   -   ONE theory to reading of constitution: centralizing theory, the point is to create a centralized powerful
       government that will act as a counterweight to US and create a national identity that will be respected by other
       powers.
      S. 91 (preamble); general power for POGG, it allows for the residual power that contrasts with the more specific
       powers of s.92
      S. 92(10)(c): declaratory power, under this power a federal government can declare public works under the
       federal jurisdiction and gives the federal government power to delare judicial undertakings to be under the
       federal power
      S. 56, 90: federal power disallowance effectively gives the federal government power to veto provicnail laws.
      S. 55, 58, 90:Federally appointed governor general in provinces and can veto provincial legislation
      S.93(3): appeals or matter of religious education to be decided by the federal cabinet
      Centralizing instrument, can’t call Canada a federation because of the existence of these powers, instead more
       comparable to a unitary state
   -   Decentralized theory of reading of constitution:
      S.92(13); general powers over property and civil rights to the provinces
      92(16): of a purely local nature,
      Specific enumeration of provincial powers: specifically protects areas of provincial jursidiction
      The imperial analogy: the empire did not interfere with legislation making, can act intrusively but on analogy
       with interactions with colonies the federal government will not act in such a way thus allowing for the
       preservation of autonomy of the provinces
      Protections for F-C culture and rights
      These 2 provision ensure that the private law remains for quebec the civil tradition
   -   Minority culture protections:
      S.93: protects minority religious groups, expressly about protecting minorities and not through a broadly
       worded clause or judicial review but through the federal cabinet. Understands that minroty rights are meant to
       be protected.
      S.133: provides for bi-lingualism within parliament and province of quebec. Deep part of constitutional history
      S.94: allows the federal government to legislate for uniformity in areas of provincial jurisdiction with the
       ASSENT of those provinces. The proivicne of quebec is expressly excluded. Assumes the uniqueness of
       quebec.

PURPOSES OF FEDERALISM
   - ECONOMIC
    National economy, free trade, no problems arising from raising tariffs, a common united front.
    Create a national economy, of unified economic policy
    National economy that plays on a world stage and not influenced by toher markets, i.e. US
    Concerns about imbalances within a country and most federalisms have mechanisms for re-distribution
    Each province has ability to make independent economic policy. Have provinces in part within a federation
     because it allows for diversity of economic policy and competition among provinces which prvides for efficient
     markets internally, provinces can go elsewhere within country if unhappy. Useful because each privnce has its
     own source of resources and so can compete with one another as opposed to importing with other countries.

   -   POLITICAL
      Allows for easier access to government, allows for sub federal units to represent citizens who in turn have more
       access to provincial legislatures, more direct access, more political participation. Provinces are closer to the
       people.
      Co-ordinated function, it helps to have a big county present in the world stage for issues of defence, exchange
       etc. Allows for the country to act as a unified whole.
   
                           Constitutional Law – Exam Outline

    -   CULTURAL
       Small political groups give rise to the problem of persistent domination and oppression of small minority
        groups.
       S.93(3) counters this, to offset this risk of oppression is the possibility of vindicating rights ar federal level, right
        to hear appeals at the federal government. Provinces will oppress minorities and the federal givernemnt will be
        a recourse to stop this from happening.
       Protection for minority rights and privicnes and preserves it along with participation benefits of small political
        units.
       Competing interests towards centralized/decentralized forms of government
       Also allws for omintory to be represented at the federal level and also at the provicnail level if they are a
        majority.
       Creates a national culture
       3 benefits:
        1. National culture
        2. Local culture
        3. Protection of minorities within provinces
       Certain minorities are so vulnerable that they cannot create coalitions and advocate for their rights

VIPOND ARTICLE
   - Disallowance: the power of the federal government to veto a provincial legislation within one year of passage.
   - Belief that it was a useful tool to allow for the protection of minorities/individuals from
     unjust/tyrannical/discriminatory provincial legislation
   - How to effectively veto:
     1. When they overstep their powers listed under s.92, use veto to discipline you.
     2. cases of conflict, cases where fed leg conflicts with prov. Leg, particulary s.95, concurrent powers. So give
          veto power to federal law,
     3. when it is in the interests of the Dominion generally: wildly unrestricted, gives a plenary power constiting
          with the language of the POGG power. What does this mean?
   - MacDonald limited the power of disallowance:
     1. If provincial acts were altogether illegal or unconstitutional (i.e. provinces attempting to legislate in matters
          that were under the jurisdiction of federal government)
     2. If they were illegal or unconstitutional in part
     3. In cases of concurrent jurisdiction, as clashing with the legislation of the general parliament
          (immigration/agriculture)
     4. In cases affecting the interests of the Dominion generally. (provincial legislation was legal but needed to be
          disallowed to yield to some greater national purpose)
   - S.92: grants Provinces exclusive jurisdiction over certain areas
   - Granting provinces ability to act freely within a limited ambit was a way of reconciling centralization with the
     federal principle
   - Disallowance eliminated: through the process of judicial review. Better to enlist neutral, dignified and judicial
     aid in the enforcement of jurisdictional boundaries. It would be preferable to leave the interpretation of the
     constitutional division of powers to those who are trained to see federal and provincial jurisdiction. Ontario
     River & Streams Act, federal issues are to be decided by the courts. How do they decide them? The courts take
     up the position of determining when they overstep their boundaries. Take on the role of defining those powers.
   - DISALLOWANCE MEMO 1868: to think about a way of guiding governmental policy with the use of
     intrusive power
   - Ontario river streams act: good case for power of disallowance, regulating in a local manner, and as a result
     of this conflict, the power of disallowance is pushed aiside, the Ontario government argues that issues of
     federalism should be resovled through judicial review who are a neutral third party.
                          Constitutional Law – Exam Outline

CONCLUSIONS
  - Looked at underlying purposes of Canadian federalism
  - The role of courts in protecting purposes
  - The words of a constitutional text are not fixed and they eveolve with time. Living tree: evolve as the
     constitutional polity evolve

CONSTITUTIONAL INTERPRETATION AND DOCTINAL RULES
  - RECAP
  - Purposes of federalism
   Economic: contintental wide economy to be able to compete on a global scale and resist the power of the US.
     Diversity, provinces competing with one another to offer good service packages might give rise to more
     efficient delivery of services from those governments.
   Political: benefits of local participation within the provinces, being able to hold government accountable and be
     closer to your government. Ex: holding PEI accountable when you’re a resident of PEI is easier. Forging a
     Canadian National Identity.
   Cultural: federalism might be able to safeguard minority cultures within provinces. Minorities can find redress
     and avencnues of political participation through the federal government where they would be excluded within
     their own provinces. Or, protection of minorities within a federation the boundaries are co-extensive with the
     boundaries of a provinces. (i.e. Quebec)
   Why arrange a political order as a federation rather than either a unitary state or a collection of smaller unitary
     state.
  - The internal balances of Canadian Federalism
  - Aboriginal Law, Trade and Commerce, Debt
   There is an evolution of a recognition of aboriginal rights inCanada. Expressly recognized (rights and lands) by
     courts. Test: aboriginal: whether it existed at the time of contact. Recognized right at the beginning through
     royal proclamation and jurisdiction over aborigianls is vested in the federal government. Important
     constitutional fact.
   Debt: federal government has greater access to tax revenues than do the provinces and continuing debate over
     fiscal imbalance between governments.
   Trade and Commerce: can give rise to a strong centralist vision within Canada
  - Rise of Judicial Review
   Vipond, towards the 1880s the federal government and the provincial government came to a stand-off about the
     use of the power of disallowance and that it should not be used even in the circumstances set out by
     MacDonald. Consensus that the way to settle disputes was through judicial review.


    RISE OF JUDICIAL REVEWI AND A NOTE ON THE PRIVY COUNCIL
    - IF THE federal government has disallowance why not allow them to regulate the relations b/w
    - The courts have a role in determining the boundaries between different orders of government
    - Privy council: has, at the moment of confederation, the right to hear appeals from the colonies, in 1867 no SCC
       each province has judicial system and appeals can go from provinces to privy council. There is a growing
       consensus that Canad needs an appellate court that oversees the decisions of provincial courts. SCC created
       pursuant to s.101.
    - SCC unified body to hear appeals from all levels.
    - Privy council still exists and can still hear appeals from SCC and from provicnal courts.
    - 1949: privy council abolished
    - Debate about role of privy council
    - DEBATE among French adn English scholars about the proper roole of the SCC in creating federalism doctrine,
       French towards decentralization and English towards centralization. The privy council provided them with a
       neutral third party because not influenced by these disputes, not appointed by either party that are involved.
                           Constitutional Law – Exam Outline

        When privy council doctrines abolished there is a move towards cetrnalization. Quebecers say federally
        appointed judges are created federally appointed doctrine.

IDENTIFY MODES OF CONSTITUTIONAL INTERPRETATION
   - Hypo:
      s.91 Class participation
      1. respectful and informed Contributions to Class Discussions will be rewarded
      2. enthusiastic constributions are encouraged
   - Can look at common language meaning of the text
   - History of the document
   - Look at legislative intent, what did the drafters think they were doing? However, difficult, especially when
      there are numerous people contributing to it.
   - Meaning it has taken on (doctrinal argument); good idea of what it meant when drafted by ppl and to what it
      applied
   - Living tree approach to interpret a constitution: terms can have their meanings change over time. Constitution
      cannot be fixed in time, has to evolve as society’s perceptions change.
   - The value of living tree allows constitutions to adapt over time
   - Value of original intent approach: if the value of living tree gives flexibility over time then the originals
      approach gives people certainty, know what it means, this approach fixes it, gives stability over time. This
      approach gives less power to courts as opposed to living tree. Allows for actual interpretation as opposed to
      legislation.
   - Interpreting constitutions:
      1. Original intentions
      2. text
      3. Hisotirical needs
      4. What the courts have said: the exisiting docitrine.
      5. Structure: look at text to see how it fits in with the other provisions, want to piece together it’s meaning by
           fitting it in with other clauses.
      6. Prudential considerations/efficiency
      7. Appeal to some sort of ethical value of respect
   - Kinds of interpretive argument:
      1. Historical
      2. Textual
      3. Structural
      4. Doctrinal- what courts have said
      5. Ethical- appeal to values
      6. Prudential- appeal to efficiency and consequences
   - Generate doctrinal rules:
   - The meaning of a constitutional provision:
   - Kapp: talks about distinctions based on enumerated/analogous ground with the effect of perpetuating a
      disadvantage based on a personal characteristic
   - Doctrinal test: gives a 4-part test to look at, pre-exisint disadvantage, correspondence, nature of the interest
      affect. So tells you what it means and then generates a test to determine whether there has been a violation.
   - characterization : court has set of facts in front of it and then has to analyze those facts to see if there has been a
      violation. Does the legislation meet the needs of that group. What is the nature of the interest. The court
      characterized the law in light of its test to give effect to the meaning it has stated out in it’s decision. Want to
      say, what is this thing? This law, does it fit within s.91 or s.92? yes, it does because it satisfies this part of the
      test. Work the facts within the existing law and then characterize those facts.

FEDERALISM AND COURTS
   - overview:
                          Constitutional Law – Exam Outline

   -    interpret the scope of a head of power (trade amd commerce, property and civil right and pogg)
   -    gereate doctrinal tests (rules versus standards, multi-factor tests)
   -    characterize government action (pith and substance)
   -    generate conflict rules (double aspect, paramountcy, interjurisdictional immunity) – there are going to be certain
        circumstances where both levels of government are going to be validly legislating. So, determine what a
        conflict it and under what conditions will the federal government trump

IDENTIFY FORMS OF DOCTRINAL TESTS

DISTINGUISH INTERPRETATION FROM CHARACTERIZATION

INTRODUCE FEDERALISM DOCTRINES

            Citizens Insurance Company v. Parsons (1881)
Facts               - 1876, Ontario enacted legislation about fire insurance policies that specified a set of standard
                        conditions which were deemed to be part of every policy and printed under the heading
                        “Statutory Conditions”. An insurer could vary or omit the conditions but they had to be added
                        to policy in different type and colour.
                    - Parsons brought an action to recover from 2 insurers after his store burnt down. The insurers
                        refused to pay because he didn’t provide information required by conditions (but the
                        conditions weren’t part of the mandated statutory conditions and so according to Parsons they
                        were void.) The insurers argued that the legislation wasn’t valid because it wasn’t within the
                        jurisdiction of the provinces.
                    - At trial and appeal and SCC everyone in favour of Parsons, appealed to House of Lords and
                        Parsons still won.
                    -
Issue               - Is the Ontario legislation valid?
Holding             - It is valid, appeal dismissed.
Ratio               - SCC majority: illustration of the exercise of power of the local legislature to legislate by
                        granting the right to hold or deal with property (real/personal) and whereby a civil right to
                        contract and sue and to be sued as an individual in reference thereto is also granted.
                    - DISSENT: regulate and control the trade of fire insurance and of fire insurance companies
                        which is not enumerated under s.92 so under the jurisdiction of dominion.
                    - House of Lords: when there is uncertainty as to whether legislation doesn’t fall within the
                        jurisdiction of the provincial legislature it is up to the courts to interpret the legislation
                        together with the relevant clauses of the constitution to determine a result.
                    - The Act deals with contracts entered into and in force in Ontario for insuring property against
                        fire, and since s.91 specifies type of contracts it has authority over (bills of exchange and
                        promissory notes) this specification would have been unnecessary if the federal government
                        had dominion over all types of contracts. = textual, just what the text means
                    - Also, contracts of indemnity are not trading contracts. If the words had been intended to have
                        the full scope of which in their literal meaning they are susceptible, the specific mention of
                        several other classes of subjects would have been unnecessary (i.e. s.91(5) banking) = textual
                    - Also use structural, compare the two clauses. Court looking at other provisions trying to
                        determine what was supposed to happen. If there was supposed to be a general power about
                        contracts then they wouldn’t have had to specify something.
                    - Structural and ethical argument: trade and commerce can mean alot, so need to read these
                        things in light of one another.
                    - Montague rejects the Ritchie interpretation because it would allow all types of trade...
                    - Parsons doctrine of mutual modification: look at history, textual interpretation, structural
     Constitutional Law – Exam Outline

    interpretation
-   S.94 argument? Fed government can enter into agreements with provinces to regulate in an
    area for mutual modification but must be conseusual, leaves out Quebec. DEAD DEAD
    DEAD DEAD
-   Power of disallowance status: matter of constitutional convention cannot be used, but others
    say it is there but if used will be political consequences.
-   Parsons is a specific contract between federal government and provinces.
-   The dominion parliament’s authority to legislate for the regulation of trade and commerce
    does not comprehend the power to regulate by legislation the contracts of a particular
    business, trade such as the business of fire insurance in a single province and therefore it’s
    legislative authority doesn’t compete or conflict with the power over property and civil rights
    assigned to the Ontario legislature.
-   Arguments exchanged of purposes for specific provisions
-   Montague Smith: privy council, uses historical precedents to determine why the drafters did
    what they did.
-   Court runs through a variety of interpretive modes
-   Interpretation of the trade and commerce, property and civil rights powers: trade and
    commerce has 2 branches, and court is going to generate tests to see if it violates these two
    branches (heads of power of trade and commerce, the substance of trade and commerce
    power):
    1. International and Interprovincial trade and commerce: when is the federal government
         regulating something that is moving in between provinces. Federal government has to be
         regulating things that are moving across borders. Provinces, how much can they affect
         things that are moving across borders when they only have jursidction to regulate things
         within provinces.
    2. Trade and commerce that affects the dominion itself
-   raises idea of pith and substance:
-   pg. 96, sets up the way of interpreting trade and commerce in light of one another and sets up
    doctrinal tests. COURT ACCEPTS THAT LEGISLATION WHOSE MAIN PURPOSE IS
    ONE THING CAN INCIDENTALLY AFFECT OTHER AREAS OF GOVERNMENT.
-   pith and substance: it becomes necessary to consider the question how. The government
    regulates within it’s sphere of authority can touch the other government’s sphere of authority
    as an incidental effect. The idea is that the federal government can under trade and commerce
    regulate as it’s main purpose interprovincial trade and as a result may touch upon things that
    are occurring in the province which is ok as long as that is incidental to their main purpose.
    On occasion, might step into the other’s area of jurisdiction if it’s incidental to what they are
    regulating. That is ok.
-   Pith and substance and incidental affects: going to have legislation and need to interpret if that
    government action’s “main purpose” within one or the other heads of power. Is it a trade and
    commerce legislation or a property and civil rights legislation.
-   The Ontario Act, is a law governing a specific contract and insurance, is it trade and
    commerce or property and civil rights so need to interpret what the law is.
-   ONTARIO ACT, regulating insurance act, does that fir within trade and commerce or
    property and civil right? Need to first determine what does trade and commerce mean and
    what does property and civil rights mean (contracts within a province are within the property
    and civil rights power)? Limit powers of each government, legislation that affects contracts
    that happened withn a province so main purpose is that it is under property and civil rights
    jursidction not trade and commerce because that deals only with interprovincial and
    international trade.
-   Accepts that there are certain kinds of commercial transactions (property and civil rights,
    contracts of sale) that are going to be interprovincial and international if contracts of sale
                          Constitutional Law – Exam Outline

                         make things move across borders.

        -   Laid out a range of interpretative methods
        -   Doctrinal tests: can have a brightline rule (rule tends to be brightline because doesn’t allow for discretion,
            straight guidance) or a standard (open up the discretionary limits)
        -   Characterization of laws: accept that law can incidentally affect the jurisdicctin of other powers but main
            purpose has to be under the jurisdiction of one main head of power.

CAIRNS ARTICLE
   - Canadian political evolution has been characterized not only by nation-building, but by province building
   - In response to the increasingly federal society the various centralizing features of the BNA Act fell into disuse,
     not because their meaning was distorted by the courts, but because they were incompatible with the
     developments of the country as a whole.
   - S.94, uniformity of law, the disuse due to the utopian nature of the assumptions and the failure of Canadians to
     exploit its centralizing possibilities.
   - Provincial bias of Privy Council harmonious with Canadian development
   - Laurier: the only means of maintaining Confederation is to recognize that within its sphere assigned to it by the
     Constitution, each province is as independent of control by the federal Parliament as the latter is from control by
     the provincial legislatures.

    -   INTRODUCTION TO HEADS OF GOVERNMENT: PEACE, ORDER AND GOOD GOVERNMENT
    -   The modern interpretation of the p.o.g.g power has been the re-emergence of the national concern doctrine.
    -   National concern doctrine: allows for federal legislation in situations of national concern apart from
        emergencies.
    -   Canadian Temperance Foundation case: if it is such that it goes beyond local or provincial concern or interests
        and msut from its inherent nature be the concern of the Dominion as a whole, then it will fall within the
        competence of the Dominion as a matter affecting the peace, order and good government of Canada, though it
        may in another aspect touch on matters specially reserved to the provincial legislatures...Nor is the validity of
        the legislation, when due to its inherent nature, affected because there may still be room for enactments by a
        provincial legislature dealing with an aspect of the same subject in so far as it specially affects that Province.
    -   Expansion of scope of the pogg power: if Parliament could legislate when there was an actual epidemic it could
        do so to prevent one occurring and also to prevent it happening again.
    -   Johanesson case: granted exlcusive jurisdiction over aeronautics to the federal government. “The maintenance
        and extension of this traffic, particularly to the North, is essential to the opening up of the country and the
        development of the resources of the nation. It requires merely a statement of these well recognized facts to
        demonstrate that the field of aeronautics is one which concerns the country as a whole.”
    -   Munro case: National Captial Act uphel on the basis of p.o.g.g. Judgment argued that the national concern
        doctrine had been adopted by the Court in Johanesson and that the development of the National Capital Regoin
        under the Act was a single matter of national concern. (expropriating someone for the purpose of constructing a
        GreenBelt)
    -   Radio Reference case: s.91 interpretation was used to uphold a federal law without the national concern doctrine
        and thus gave rise to suggestion that also authorized federal legislation in relation to subject matters not
        explicitly assigned to either level of government.
    -   Recap: interpretive arguments in Constitutional Law
       Textual – what do the words mean in a common sense, uncontroversial way? Parsons illustrates the problem
        with textual analysis, debate between Gwynne (common sense interpretation, contracts falls under trade and
        commerce and property and civil rights) and Ritchie. In most cases the textual interpretation is never the final
        argument because the text is so general it is inherently unclear what it means. This is the point of contrasting
        Gwynne and Ritchie.
                          Constitutional Law – Exam Outline

       Historical – appealed then to the Quebec Act, the Act of the Union, some of the underlying
        purposes/motivations behind it. Common form of argument, will often bring in the original purposes of the text.
        Argument from intention, and courts will often appeal to legislative intent. Also, what the original public
        meaning was, what at the time of drafting the public understood the text to mean. Why would that matter? The
        reason it matters is because the historical meaning fixes the meaning of the provision. It constrains the judiciary
        from reading into the statute any meaning they want. Arguments help fix meanings in the text. Constitutions
        are supposed to reflect our basic commitments and if they constantly change then how can they reflect our
        commitments. The purpose is to fix the meaning of the text.
    -   Both in Parsons
       Structural – look at other provisions, how can trade and commerce mean specific contracts when it is
        specifically enumerated in other provisions. How can it have expansive meaning when there are other
        provisions that deal with specifics. Look a t structure to try to narrow what the meaning of the constitutional
        provision is. Parsons illustrated the variety of structural
       Doctrinal – arguments from previous cases. Will often develop an extended meaning of the constitution by
        building what previous courts have done. Analogiza with other cases, extend or limit the scope through legal
        reasoning.
       Ethical – the court will often appeal to value judgements. In Parsons when the court talks about the importance
        of division between government and the autonomy they mst have. Appeals to some sort of political values.
       Prudential – arguments about consequences, what are the effects of reading the provisions in one way as
        opposed to another. Cannot allow for the unlimited trade and commerce by federal govt’ can regulate the
        minute details of contracts within provinces...court looks to the consequences.

    -   Talked about kinds of doctrinal tests:
        1. Brightline rules: can have a 10 minute break from my class at any time. Specifies very clearly in advance
            what is required. 50 km speed limit. Constrain the discretion of subsequent decision makers. Meant to fix
            the meaning/set the limts of the activity, like hisotical interpretations. At the margins there is discretion but
            it is much greater with standards. Think of the discretion allowed to the person applying the test.
        2. Standards: open-ended. You can leave my class for reasonable amounts of time. When the law sets out a
            standard it does not specify with any degree of certainty what the rule is. Grants subsequent decision makers
            with alot of discretion.
    -   Multi-factor tests: Law, a set of factors are non-exhaustive, no one factor is determinative. Multi-factored tests
        are all over constitutional law. Typically not precise, open-ended because are unaware of the relationship
        between the factors. Think of the level of discretion the test gave to courts, they were able to balance the factors
        one against the other. What would happen if not all the factors were present. What if they work at cross
        purposes. How do you reconcile those purposes, when they are conflicting.

CHARACTERIZATION OF LAWS
  - When interpreting the constitution trying to tell you what it means, what it requires and whether there has been a
     violation as it’s been interpreted. Will be characterizing laws to determine whether they fall under s.91 or s.92
     cases. Does this law actually fit within this preamble of s.91, does it fit wihitn the test of pogg power. Will
     look to specific laws and will try to fit it within s.91 or s.92. in order to engage in that characterization has to
     understand what the existing tests for the various heads of pwer are.
  - PITH AND SUBSTANCE

Today:
   - Going to identify the branches of POGG power
    POGG typically understood to be a residuary power, anythong not captured under s.91 or s.92 falls under the
       power of the federal government. The consequence of this means that there are no gaps within the constitution.
       Everything that can possibly come up in a federation can be regulated by a government. Express powers or
       residuary powers.
                      Constitutional Law – Exam Outline

   At confederation the drafting of the constitution, thought of this as a power that wouldgrant the federal
    government a huge amount of power.
   Pogg – is all about tying to determine how much authority goes to the federal government. Because if the
    residual power if given full force can overwhelm the provinces. This is the danger that Beetz saw clearly,
    convcerned about how to constrain the federal government’s power to preserve French autonomy.
   Expansive POGG power allows the government to account for chages that weren’t envisioned at confederation.
   Will apeeal therefore to value judgements as well as consequences (if we really limit the federal government
    then they cannot account for all these changes – stunt the capacity of the confederation to respond to these
    pressing issues)
   Beetz: wants to hold to the compact theory, reduce discretion of judges and give autonomy to quebec.
   Debate between centralization and decetraliztion
   Branches of pogg power
-   Identiy the pogg tests
   Emergency branch – limit the pogg power to emergencies. Early JCPC cases limited power to emergencies
    (Board of Commerce, Snider) limits the federal government, this serves the function of the brightline rule
    because emergencies are crises and that is all they have jurisdiction over.
   Anti-inflaiton reference: temporary in nature and rational basis
    1. Temporary: cannot have permanent emergencies so intention has to be temporary invocation of power
    2. Rational basis: the court in this reference says we will accept that what parliament characterizes aas an
        emergency is an emergency unless someone else can show us why that characterization is irrational. Say
        that Parliament has all kinds of means at it’s disposal to determine whether something is an emergency, so if
        you’re going to choose between a court and Parliament who has more discretion to determine what is an
        emergency. So, the legislature gets all kind of deference because they have all the resources needed. So,
        the consequence of allowing rational baiss review means that the courts will exercise deference because
        they don’t have the expertise but the provinces gets shafted because now the government can regulate issues
        that normally fall under provincial jurisdiction. Emergency of a nature that a province cannot deal with.
        Makes provinces highly vulnerable, and grants high deference to the federal government.
-   Federal government only has to consult the provinces, the federal government has to meet these hurdles in order
    to act which constitutes a public/procedural restraint on their actions. No requirement that provinces have to
    consent, they have to consult. A residual check/restraint. Puts the governments actions in high political check,
    in public view.
-   Keep in mind, temporary nature and the rational basis review for the emergency power and that there are some
    public constraints on that power.
   Gap-filiing branch: treaty-mkaing power (radio reference), bilingualism in federal institutions (jones),
    incorporation of federal companies (parsonos), off shore minerals (offshore mineral rights). Different from
    national dimensios because the idea is that the govenremnt aloocates one set of pwers to one government and
    not the other, allocates to one government explicity and not to another person who needs it. treaty-making
    power, oringially entered into for Canada by imperial government and when decided it would no longer do this
    then it decided had to go somewhere and gave it to federal govenremtn. Necessary power, the country has to
    enter into treaties, constitution didn’t account for this so give it to federal government (makes sense). Express
    allocation of authority, there is a problem who should have power over an area that is not expressly granted,
    give it to federal government. Obvious residual aspect of pogg power.
   National concern of national dimesnsions branch: beyond local or provincial interest and its inherent nature
    must be the concern of the Dominion as a whoel. Canadian Termperance Foundation. Aeronautcia
    (Johanesson) National Capital Region (Munro). Taken as obvious allocations. Subject matter that wasn’t there
    at Confederation but since it is something that extends beyond provincial borders than goes to federal
    government.
-   Examine the effects of expanding the pogg pwer
-   Examine the tests’ purposes
-   Critique the tests, apply them to novel fact situations
                      Constitutional Law – Exam Outline

-   SWINTON ARTICLE
-   Laskin:
-   favoring a strong central government. P.o.g.g. clause constituted the general pweor while the enumerated
    powers in s. 91 were illustrative only.
-   Aspect doctrine: focussed on the subject matter of legislation, allocating particular concrete subjects ot the
    federal or provincial governments as “fields” of law-making.
-   Laskin opposed this approach which was territorial or boundary driven and instead felt that a court should focus
    on the object or purpose of legislation, asking whether the law had a federal or provincial “apect” with the result
    that concrete subjects might be regulated by both levels of government.
-   Trenching doctrine/necessarily incidental doctrine: seemed to imply that one government could legislate on a
    subject normally within the jurisdiction of the other level of government if the measure was necessarily
    incidental to the effective regualiton within its own sphere.
-   Federal government was the logical institution to deal with important problems
-   Problems once local in nature can take on a federal aspect as they become more complex or spilled over
    provincial borders so courts should interpret the constitution so as to recognize this evolutionary potential.
-   Flexible view of constitution: allow effective governmental responses to important problems of public policy
-   Beetz:
-   Search for principles and rules to confine the exercise of judicial discretion.
-   Much more protective of provincial rights and cautious about depating from precedents which provided
    safeguards for provincial autonomy.
-   Vision of the constitution was guided by a concern for provincial autonomy, a value which he embedded in
    Canadian traditions and the language of the constitutional document, but his reading of that document was
    influenced by a classical vision of the federal system, which demanded respect for the autonomy of the federal,
    as well as the provincial governments in the areas of jurisdiction which the constitution allocated to each.
-   Quebecois point of view:
-   BNA act was designed to protect the French speaking minority of Quebec form majority domination in certain
    areas important to the preservation of the Francophone culture – religion, language, laws and education.
-   Quebec needed the constitution to be interpreted in a manner sympathetic to provincial competence
-   BNA act as documsnt paradoxal: its status as funadamental law, difficult to amend and designed to last
    indefinitely, suggests the need for a liberal interpretation to allow the document to eveolve with changing
    circumstances, yet the Act was drafted in the technical and detailed manner of a statute to which one would
    normally give a restrictive interpretation, for it lacks the statement of general principles which one would expect
    to find in a constitution
-   Concurrency seems problematic because it gives a wider zone for the supremacy of federal laws, through the
    operation of the paramountcy doctrine
-   Prefer for emergency interpretation as opposed to national importance interpretation because former allows for a
    temporary suspension of the constitution rather than a permanent transfer of power to the federal government
    based on the importance of the problem to be addressed.
-   The power to legislate over property and civil rights is important because it permits the preservation of the civil
    law of Quebec and it gives the province jurisdiction over labour relations, industrial development, transportation
    and commercie in general within its territory.


               -   Reference re Anti-Inflation Act (1976)
Facts          -   This act established a system of price, profit and income controls. Applied to private sector
                   firms and construction frims. Binding on the federal public sector but applicable to the public
                   sector of each province only if an agreement was made between the federal government and the
                   government of the privnce.
               -   Governor in Council directed to the SCC to determine whether the Act was ultra vires and
                   whether the agreement with the Ontario publc sector was valid.
                         Constitutional Law – Exam Outline

                  -   Held: the Act was supportable under the p.o.g.g. power as emergency or “crisis” legislation
   Issue          -   Is the Act ultra vires and is the Ontario agreement valid?
   Holding        -   Yes, it constitutes emergency “crisis” legislation.
   Ratio          -   Doctrine of judicial notice
                  -   Heydon’s rules: the rule that legislation is to be interpreted in light of its purposes or the
                      mischief at which it was aimed.
                  -   Arguments turn substantially on whether the social and economic circumstances upon which
                      Parliament can be said to have proceeded in passing the Act were such as to provide support for
                      the Act in the power of parliament to legislate for the peace, order and good government of
                      Canada.
                  -   Anti-Inflation Act, supported under the opening words of s.91 of the BNA Act as being a law
                      for the p.o.g.g. of Canada in relation to matters not coming within the classes of subjects
                      assigned exclusively to the Legislatures of the Privinces.
                  -   General power: operative outside of the powers assigned to the provincial Legislature, and also
                      fed by a catalogue of enumerated federal powers which are declared to be paramount to and
                      thus diminish the scope of provincial legislative authority.
                  -   Federal enumerated powers: those dealing with rtade and commerce, currency, banking etc.

   -   NOTE: Emergency Legislation after the Anti-Inflation Reference
   -   Law enacted, Emergencies Act 1985 which contains provisions dealing with different types of emergencies,
       including public welfare, public order, international and war emergencies. The federal cabinet can declare an
       emergency, the declaration must concisely describe the state of affairs constituting the emergency and it must be
       confirmed by Parliament. As well, the declaration cannot be made without prior consultation with affected
       provincial governments and an agreement by the provincial Cabinet that the province is unable to deal with the
       situation.
   -   NOTE: The National Concern Doctrine After Anti-Inflaiton
   -   HAUSER, the constituioanl validity of the Narcotic Control Act rested on the p.o.g.g. power of Parliament
       rather than on its jurisdiction with respect to criminal law. Abuse of narcotics, was a new problem which did
       not exist at the time of Confederation and that since it did not come within matters of a merely local or private
       nature in the province it fell within the general residual power in the same manner as aeronautics and radio
   -   SCHNEIDER, the treatment of heroin dependency, as distinct from the traffic in narcotic drugs, was not a
       matter falling within the federal p.o.g.g. power
   -   No evidence alluding to the fact that it is a matter of nationa interest, not beyond provinces’ power to deal with,
       doesn’t go beyond loca or provincial concer or interests, and heroin addiction has not reached a state of
       emergency as will gorund federal competence under residual power.

THE NATIONAL DIMENSIONS ASPECT OF POGG
        R v. Crown Zellerbach Canada Ltd (1988)
Facts       - In dispute is s.4(1) of the Ocean Dumping Control Act which prohibits the dumping of substances
               at sea except in accordance with the terms and conditions of a permit, the sea being defined for the
               purposes of the Act as including the internal waters of Canada other than fresh water.
            - The general purposes of the Ocean Dumping Control Act is to regulate the dumping of substances
               at sean in order to prevent various kinds of harm to the marine environment.
            - The respondent carries on logging operations and maintains a log dump on a water lot leased from
               the provincial Crown for the purpose of log booming and storage off Johnstone Strait.
            - Respondent dredged woodwaste from the ocean floor adjacent to its log dump in Beaver Cove and
               deposited it in the deeper waters of the cove.
            - Purpose of this was to allow for the installation of a new a-frame structure for log dumping.
            - The only permit held by the respondent was for the use of a dump site in Johnstone Strait.
            - The company was charged with vilating s.4(1)
                    Constitutional Law – Exam Outline

          -   At trial s.4(1) was found to be ultra vires and the charges were dismissed
          -   An appeal to the BC C.A. was dismissed.
Issue     -   Whether federal legislative jurisdiction to regulate the dumping of substances at sea, as a measure
              for the prevention of marine pollution, extends to the regulation of dumping in provincial marine
              water?
Holding   -   Appeal allowed
Ratio     -   MAJORITY, LEDAIN J:
          -   Respondent says that Parliament has jurisdiction to regulate dumping in waters lying outside the
              territorial limits of any province and to regulate the dumping of harmful substances within
              provinces that affect fisheries and also to regulate the dumping of substances in provincial waters
              that may be harmful to extra-provincial waters. But his actions constitute dumping in provincial
              waters of a substance that is not harmful to extraprovincial waters.
          -   Doesn’t want it ot apply to his dumping.
          -   Wants “internal waters” to exclude those internal waters which are within a province.
          -   Counter argument was the control of dumping was part of a single matter of national concern
              which fell within the federal pogg power = prevention of ocean or marine pollution
          -   As a basis for federal legislative jurisdiction to control marine pollution generally in provincial
              waters cannot be found in any of the specified heads of federal jurisdiction in s.91 of the
              Constitution Act 1867, whether taken individually or collectively.
          -   Consider the national dimensions (aka national concern) doctrine of federal pogg power as a
              possible basis for the constitutional validity of s.4(1) of the Act, as applied to the control of
              dumping in provincial marine waters.
          -   National dimension is distinct from national emergency doctrine (temporary)
          -   ND: newness, applies to both matters that weren’t considered at time of Confederation as well as
              matters that were oginially thought to be of a provincial nature but hav since become matters of
              national concer
          -   ND matters must have a singleness, distinctiveness and indivisibility that distinguishes it from
              matters of provincial concern and a scale of impact on provincial jurisdiction that is reconciliable
              with the fundamental distribution of legislative power under the constitution
          -   PROVINCIAL INABILITY TEST: after determining whether a matter has the elements to
              make it ND must consider what would be the effect on extra-provincial interests of a provincial
              failure to deal effectively with the control or regulation of the itnra-provincial aspects of the
              matter.
          -   ND exists whenever a significant aspect of a problem is beyond provincial reach because it falls
              within the jurisdiction of another province of of the federal Parliament
          -   Pogg only bestows residual powers, so the existence of a national dimension justifies no more
              federal legislation than is necessary to fill the gap in provincial powers.
          -   National dimensions are possessed by only those aspects of legislative problems which are beyond
              the ability fo the provincial legislatures to deal because they involve either federal competence or
              that of another province
          -   The provincial inability test would appear to be adopted as a reason for finding that a particular
              matter is one of national concern falling within the pogg power: that provincial failure to deal
              effectively with the intra-provicnial aspects of the matter could have an adverse effect on extra-
              provincial interests. In this sense, the provincial inability test is one of the indicial for determining
              whther a matter has that character of singleness or indivisibility required to bring it within the
              national concern doctrine.
          -   In this case: marine pollution, because of its predominantly extra-provincial as well as
              international character and implications is clearly a matter of concern to Canada as a whole. The
              question is whether the control of pollution by the dumping of substances in marine waters,
              including provincial marine waters, is a single, indivisible matter, distinct form the control of
         Constitutional Law – Exam Outline

    pollution by the dumping of substabces in other provincial waters.= look to distinction made b/w
    dumping in salt water and dumping in fresh water
-   Indivisibility ascertained by: difficult to establish a boundary between the territorial sea and the
    internal marine water adn the possibility of pollutants moving (by force of tide) from one body of
    water to antoher
-   Distinction made b/w salt and fresh water which limits the application of the act meets the
    consideration that in order for a matter to qualify as one of national concern falling withing the
    federal pogg power, it must have ascertainable and reasonable limits, in so far as its impact on
    provincial jurisdicition is concerned.
-   S.4(1) is constitutionally valid as enacted in relation to a matter falling within the national concern
    doctrine.
-   Court build on a line of cases that comes before. Schneider, indivisibility and provincial inability.
    and Hauser, element of newness. Compiles jurisdprudence before it to compile a multi-facotred
    test:
    1. Separate and distinct from national emergency
    2. Newness: either didn’t exist at all at the time of Confederation or existed but now it has
         exceeds the capacities of the provinces to regulate. Rely on this in aeronautics, and pollution
         at confederation had no interprovincial effects but by the late 20th century there are factories
         that are polluting environments and now exceeds the provinces to regulate. Newness matters
         because if talk about time then it holds open the possibility that it works within the residual
         nature of the POGG power. It fits within the residual nature, if it wasn’t contemplated within
         the confederation then it has to be put somewhere (hypothesis).
    3. Singleness, distinctiveness and indivisibility: functional/conceptual aspects of this test, in
         assisting in the determination of whether it has singleness and etc from a functional as well as
         conceptual point of view means. Conceptual because making some sort of distinction
         between the chemical composition and the behaviour of fresh water and marine water. Can
         draw this distinction as a matter of fact. Functional, need to look at purposes for this. Why
         does it matter? Why does distinctness matter? Talking about one issue, can distinguish it
         from other things, distinct categories of things, so when the court is talking about marine vs.
         fresh water the court is talking about 2 categories that can be distinctly identified. It’s
         sufficiently circumscribed as a subject matter that it doesn’t allow federal government to
         functionally regulate over everything, it doesn’t allow the federal government to regulate over
         everything. (trying to figue out how to constrain regulation generally). Purpose is to make
         sure that if you allocate the power functionally and conceptually and so by making the
         distinction between 2 types of water.
-   How do you apply it? marine pollution, conceptually and functionally distinct, have to be able to
    show how it applied in crown case and explain it too.
    4. Provincial inability – coordination problems, there may be things that the provinces
         themselves cannot handle so they need someone else to handle them for them. Marine
         pollution is a good example because it cuts across provincial borders, crosses jurisdictional
         boundaries. Too difficult to make provinces enter into agreements to regulate.
-   Pg. 308, relationship to singleness and indivisibility, the court seems to see a connection between
    prov. Inability and singleness and indivisibility. Sometimes make the argument that this is the
    most important factor because cannot have national concern without provincial inability. Do they
    have to come together? Or can they operate disjunctively?
-   Why does newness matter? 2 senses of newness, things are new if they did not exists at all, or
    they might have existed at federation but they were part of provincial jurisdiction and since then
    have evolved to such a degree that they should be under federal jurisdiction.
-   DISSENT, LA FOREST J:
-   Challenges that there is a clear distinction between 2 types of water
-   Impact it will have on provinces
                      Constitutional Law – Exam Outline

            -   Provincial inability
               Who are courts to make this kind of determination, whether the provinces can regulate
                something that cuts across borders. Expresses discomfort with this. Who are courts to
                generate doctrinal tests to empower fed. government to this degree, does the court have this
                authority?
             Limit the pogg power exclusively to the emergency power. And limits the power granted to
                the federally appointed courts. Brightline exclusion rule.
             Revert to reasoning by analogy. Develop it incrementally. Incremental and analogical
                reasoning.
            - Trying to regulate a provincial activity taking place wholly within a province and with no
                deleterious effects
            - Pogg power can be instituted when:
                1. In times of emergency doesn’t have to abide by the division of powers
                2. To control the area of the sea lying beyond the limits of the provinces. May take steps to
                     prevent activities in a province, such as dumping substances in provincial waters that pollute
                     or have the potential to pollute the sea outside the province and the control of deppostis in
                     fresh water that have the effect of polluting outside a province.
            - The act is too all encompassing, it phobits the deposit of any substance in sea, including provincial
                internal waters. No evidence to indicate that the full range of acitivites caught by the provision
                cause the harm sought to be prevented.
            - Stress on federalism because dumping any substance (noxious or not) within waters that seem to
                be even under provincial jurisdiction falls under the jurisidiction of Praliament
            - By conceptualizing broad, social and economic and polticial issues one can effecitlvey invent new
                heads of federal power under the ND doctrine removing from them from provincial jurisdiction
            - This provision prevents provinces from dealing with its own property and matters of immeidiate to
                the province without federal consent
            - Federal power over local matters having local importance taking place on provincially
                owned property.
            - Parliament cannot attempt to regulate a local industry unless:
                1. The activites fall withih federal power
                2. Are expressly encompassed within a specific head of power (navigation)
                3. Affect areas of federal concern
                4. Cause pollution to those parts of the sea under federal jurisdiction
-   Justice Beetz’ regrets: concerned about how broad it is because it seems to give alot of power to regulate
    something that seems to be under provincial jurisdiction.
-   Think of provincial inability: allows the federal government to regulate dumping within federal waters, and
    the court makes it clear that it is only about dumping in federal water not whether the dumping has
    extraprovincial effects so it seems that it is overbroad. Over-inclusive.
-   There are 2 senses in which the provinces can be unable, under the national concern branch:
    1. No jurisdiction, jurisdictionally incapable of regulating
    2. Lack of coordination: provinces can always enter into agreements with one another. But what
        happens when provinces don’t co-ordinate, so problems that extend beyond provinces and because
        they don’t agree problems don’t get solved so an interveining authority has to come in.
-   Co-ordination problems: under certain circumstances, dispersed jurisdictions gave rise to problems that
    none of them could handle. If one of the prov. defects, the problem doens’t get solved, the fed.
    government can come in because the problem extends beyond borders.
-   Relationship to singleness/indivisibility: think about it, Crown Zellerbach tells you that singleness test
    has to work together. Provincial inability is another kind of limiting factor, something that gives rise to
    both provincial indivisibility but yet is so unique, all the court is saying is that these things are essential
    and must work together. Singleness/indivisibility have to be satisfied, have to come together.
                           Constitutional Law – Exam Outline

   -    Singleness/indivisibility: conceptual and functional to determine it
   -    Conceptual: scientific difference is the conceptual
   -    Functional: a really broad power allows the federal government to regulate in a whole area of provincial
        jurisdiction.
   -    Various branches of POGG power: emergency branch, gap-filling branch, and national concern branch
   -    Gap-filling branch: things aren’t obviously allocated, so in order to fill in gaps/holes in constitution need to
        place them somewhere. “Living-tree”. Has to be something to accommodate for things that are missing from
        Constitution. Ex: no mention of federally-incorporated powers, so by implication the federal government is
        given authority over it to fill in the gap in the constitution. Really is supposed to fill in things that are obvious
        holes, anything less than obvious will get funnelled into national concern branch or emergency branch.
   -    Emergency power: distinguish constitutional from statutory requirements. Emergency power has to be
        temporary. Temporary nature is implicitly read in through the cases, every emergency is time limited. High
        levels of deference the government gets in labelling something an emergency, the constitutional standard.

            Friends of the Oldman River Society v. Canada (Minister of Transport) (1992)
Facts           - Environmental Assessemnt and Reveiw Process Guidelines issued under the fderal Department of
                   the Environment Act required all federal ageneces with authority to make decisions on any
                   proposed acitivty that may have an environmental effect on an area of federal responsibility to
                   screen the proposal to see if it could have adverse effects. If it can then it had to be a review by an
                   environmental assessement panel
                - Alberta propsed to build a dam on Oldman River to create a storage reservoir. Approval was
                   obtained by the Minister of Transport but he didn’t subject it to an assessment.
                - Society brought an action to quash the decision and to compel adherence to the guidelines.
                - The action was dismissed at trial but successful at Fed C of A.
Issue
Holding         -    Appeal dismissed
Ratio           -    MAJORITY, LA FOREST J:
                -    When thinking about divisibility contrast it with the environment, the government says the
                     environment is divisible. Limit condition, how far something can go before it fails the
                     singleness/indivisibility test.
                -    Double-aspet introduced: both of them can regulate different aspects of the environement.
                -    Distinguish it from Crown Zellerbach: driven by facts, says we accept the test, and it seems it’s
                     distinguished by facts. Disagreement by fact or law, is he overturning it or accepting it and
                     applying it
                -    Alberta argues that the Guidelines attempt to regulate the environmental effects of matters largely
                     within the control of the porvice and consequently cannot constitutionally be a concern of
                     Parliament. Parliament is incompetent to deal with the environmental effects of provicncial works
                -    Environemental matters haven’t been assigned to the provinces of Prliament
                -    Environment encompasses several of the heads of pwers assigned to both government
                -    Environemental control does not have the requisite distincitiveness to meet the test under the
                     national concern doctrines
                -    Exercise of legislative power as it concerns the environement msut be inked to the appropriate
                     head of power. The provinces may act in relation to the environment under any legislative power
                     in s.92. (local works or undertakings)
                -    Although local projects will generally fall within provincial responsibility, federal participation
                     will be required if the project impinges on an area of federal jurisidciton.
                -    Erroneous principle: that there seems to exists a general doctrine of interjurisdictional immunity to
                     shield provicinail works or undertakings from otherwise valid federal legislation
                          Constitutional Law – Exam Outline

    -   Ontario Hydro case: held that Canada labour code applied to employees employed on or in connection with
        nuclear facilitess because the production, use and application of atomic enery constituted a matter of national
        concers. Under federal jurisdiction

Interprovincial and International Trade and Commerce and Property and Civil Rights
    - The limits of property and civil rights
    - When does a province regulate interprovincial trade and commerce?
    - What’s the rule?
    - Are the cases consistent?
    - Concern with constitutional ordering is the extent to which the provinces are allowed to impose barriers to the
       free flow of goods, capital, services and labour between the provinces in ways that impair the functioning of the
       Canadian economic union.
    - Courts struggle with the scope of provincial jurisdiction over economic regulation under the property and civil
       rights power, s.92(13)

            Carnation Co. Ltd v. Quebec Agricultural Marketing Board (1968)
Facts          - Board, a product of the Quebec Agricultural Marketing Act, was empowered to approve joint
                   marketing plans, and to arbitrate any disupute arising in the course of carrying out a joint
                   marketing plan.
               - Marketing Board made 3 orders:
                   1. Approved the Quebec Carnation Company Milk Producers’ Plan which bound all producers
                        shipping milk and dairy product to any of the plants of the appellant in Quebec.
                   2. Negotiated the purchase price of milk to be purchased by the appellant from the producers.
                   3. Re-negotiated the aforementioned purchase price
               - Appellant, has a head office in Toronto, an evaporated milk plant in sherbrooke and a receiving
                   station at waterloo.
               - The major part of the production at Sherbrooke is shipped and sold outside Quebec
               - Appellant argues that the 3 orders are invlaid because it allows the Board to set a price to by paid
                   by the appellant for a product that major portion of which will be used for export out of quebec.
               - Does this constitute the regulation of trade and commerce within the meaning of s.91(2) which is a
                   field reserved to Parliament?
               - Controlling prices for products that go outside the province
Issue          - Whether the orders made by the Marketing Board of Quebec have infringed on the exclusive
                   legislative powers of Parliament under s.91(2) of the BNA Act to regulates trade and commerce?
Holding        - Appeal dismissed.
Ratio          - “not affecting, rather in relation to”, “direct and immediate control”
               - Distinguishable: bc even in Manitoba there is a protectionist intent and in Carnation there is no
                   intent.
               - Relying on decision in the Reference re Farm Products Marketing Act (ONT): a transaction
                   might take place within a Province and yet not constitute an intraprovincial transaction
                   which would be subject to provincial control.
               - Respondent says no authority dictating what constitutes interprovincial
               - Lawson v. Interior Tree Fruit & Vegetable Committee, Produce Marketing Act, was held to be
                   ulta vires because aimed to dictate the routes of shipment, the places to which shipment is to be
                   made, the quantities allotted to each terminus ad quem, the committee does, altogether apart from
                   dictating the terms of contracts, exercise a large measure of direct and immediate control over the
                   movement of trade in these commodities between BC and the other provinces. These matters are
                   not all primarily the concern of BC because they affect other provinces as well. Once a statute
                   aims at regulation of trade in matters of interprovincial concern...it is beyond the competence of a
                   provincial legislature.
                       Constitutional Law – Exam Outline

              -   Natural Products Marketing Board (BC) Act, in Shannon v. Lower Maniland Dairy Products
                  Board: Marketing Board set up to establish or approve schemes for the control and regulation
                  within the Province of transportation, storage, packing etc etc of natural products vesting in the
                  Board the power to make decisions regarding those functions. It was held that this statute was, in
                  pith and substance, an Act tor egulate particular businesses, entirely within the Province, and was
                  intra vires of the provincial Legislature under s.92(13). “...confined to regulating transactions that
                  take place wholly within the Province, and are therefore within the sovereign powers granted to
                  the Legislature in that respect by s. 92.
              -   When considering the validity of the 3 orders, must consider not the possibility that these orders
                  might “affect” the appellant’s interprovincial trade which should determine their validity, but,
                  rather, whether they were made in relation to the regulation of trade and commerce.
              -   Despite the Ontario Referece, it is also possible that such a transaction incidentally has some
                  effect upon a company engaged in interprovincial trade does not necessarily prevent its being
                  subject to such control
              -   That each transaction and each regulation must be examined in relation to its own facts. In the
                  present case, the orders under question were not directed at the regulation of interprovincial trade.
                  They did not purport directly to control or to restrict such trade. There was no evidence that, in
                  fact, they did control or restrict it. the most that can be said of them is that had some effect upon
                  the cost of doing business in Quebec of a company engaged in interprovincial trade, and that, by
                  itself, is not sufficient to make them invalid.

          AG Manitoba v. Manitoba Egg and Poultry Association (1971)
Facts        - Quebec and Ontario enacted legislation facilitating the creation of marketing schemes which
               provided for the controlled marketing, at fixed prices, of all the chickens sol in Ontario and all the
               eggs in quebec, whatever the source. Furthermore, giving preference to products produced in their
               own provinces. This had particularly adverse effects on farmers in other provinces such as
               Manitoba, which, as a consistent producer of agricultural surpluses, was the classic innocent and
               injured bystander in the chicken adn egg war.
             - Federal government was attempting to implelemt a Farm Prodcuts Marketing act to solve this
               problem but had trouble reaching a consensus.
             - So, Manitoba proposed an Order-in Council which provided for the Manitobe control of the
               marketing of extraprovincial eggs in Manitoba. Then it referred to Manitoba Court of Appeal for
               a deiciosn and this scheme was ruled unconstitutional and invalid which gave them the right to
               appeal to SCC so to generate a binding decision, on all provinces, on schemes of such a nature.
             - Fixing prices for all products, even those coming within
Issue        - Is the scheme ultra vires because trespasses on legislative authority of Parliament to regulate
               matters in trade and commerce?
Holding      - It is ultra vires, and thus, constitutionally invalid.
Ratio        - “direct object of regulation”
             - Flow of good, moving across borders, and protectionism interrupts that flow. That is the intent.
             - The court in passing in Manitoba Egg doesn’t discuss if it was protectionist because if it was then
               obviously it was interprovincial trade.
             - In egg reference doesn’t talk about the reference talks about things coming in and going out and
               affects them equally. Motive is protectionist.
             - The scheme applied to all eggs marketed in Manitoba regardless of where they came from and
               complete control over marketing was vested in the Manitoba Egg Producers Marketing Board.
             - Regulation of trade of inter-provincial concernce
             - Reitertaing decisions from Shannon, Carnation Co., and Home Oil (authorizing the fixing of
               wholesale or retail prices for coal or petroleum products sold in BC ofr use in that Province)
               concludes that the Plan now in issue not only affects interprovincial trade in eggs, but that it aims
                       Constitutional Law – Exam Outline

                  at the regulation of such trade. It is an essential part of the scheme, the purpose of which is to
                  obtain for Manitoba producers the most advantageous marketing conditions for eggs, specifically
                  to control and regulate the sale in Manitoba of imported eggs. It is designed to restrict of limit the
                  free flow of trade between the Provinces as such. Because of that, it constitutes an invasion of the
                  exclusive legislative authority of the Palriament of Canada over the matter of the regulation of
                  trade and commerce.
              -   Just as a province, may not, as a gnereal rule, prohibit an owner of goods from sending them
                  outside the Province, so it may not be able to subject goods to a regulatory scheme upon their
                  entry into the Province. This is not to say that goods have come into a Province may not,
                  thereafter, be subject ot similar controls in, for example, retail distribution to consumers as apply
                  to similar goods produced in the Province.
              -   Objection because:
                  1. The scheme has as a direct object the regulation of the importation of eggs (prohibition of
                       importation is beyond the legislative jurisdiction of the Province)
                  2. to permit each Province to seek its own advantage, so to speak, through a figurative selling of
                       its borders to entry of goods from others would be to deny one of the ojects of Confederation,
                       evidence d by the catalogue of federal powers and by s.121, namely, to form an economic unit
                       of the whoe of Canada
              -   if want to impose provincial barriers to movement into various provincial markets on
                  interprovincial trade of eggs needs Praliament’s aid.

          Re Agricultural Products Marketing Act (1978)
Facts        - legislative package constituted a solution worked out, through federal-provincial cooperation to
                 the problems regulating the marketing of agricultural products.
             - Established a comprehensive program for regulating the marketing of eggs in Canada. The
                 program provided for sharing of the interprovincial and export market by allocating quotas to each
                 province and to each egg producer.
             - Canadian Egg Market Agency administered the plan.
             - Constitutional issues raised: validity of surplus program, authority of Parliament to provide for
                 levies in respect of intra-provincial marketing, and validity in light of s.121 of a marketing scheme
                 based on provincial boundaries.
Issue
Holding
Ratio         -   “production vs. marketing”, “complementary regulation”
              -   Complementary regulation: the provinces and feds seem to enter into a relationship together, set
                  up a co-operative scheme which makes it constitutional and distinguishes it from Manitoba Egg
              -   In Agri Prod, talking about an actual agreement.
              -   Fed trying to regulate within the province and the provinces is trying to regulate external markets
                  = come into agreements where the federal government has no jurisdiction all the time, and the
                  courts states that the complementary nature of the agreement absolves them from the constitution.
                  As a general default rule, if you can resolve this constitutional issue then we are nt going to jump
                  in because you are more competent. Courts won’t declare it ultra vires because the governments
                  are more competent to make decisions.
              -   Control of production is prima facie a local matter, a matter of provincial jurisdixtion.
              -   Egg farms are loca undertakings subject to provincial jurisdiction under s.92(10) of the BNA
                  unless they are considered as within the scope of agriculture in which case, by virtue of s.95 the
                  jurisdiction is provincial subject to the overriding authority of Parliament.
              -   Carnation Co. Ltd: concluded in favour of provincial jurisdiction over undertakings where primary
                  agricultural products are transformed into toher food products.
              -   The provincial regulation in this case is not aimed at controlling the extraprovincial trade. In so
                        Constitutional Law – Exam Outline

                  far as it affects this trade, it is only complementary to the Regulations established under federal
                  authority.
              -   Provinces may not make use of their contol over local undertakings to affect extraprovincial
                  marketing, this does not, in my view prevent the use of provincial control to complement federal
                  regulation of extraprovincial trade.
              -   CEMA: it was argued that by establishing a fixed quota system for the production of eggs within
                  each province, effectively prevents the establishment of a single economic unitl in Canada with
                  absolute freedom of trade b/w its constituent parts.
              -   Nothing in this scheme that is in its essence and purpose related to a provincial boundary – no
                  design of punitive regulation directed against or i favour of any province.

          Canadian Industrial Gas and Oil Ltd. v. Government of Saskatchewan (1978)
Facts        - Appellant: a corporation engaged in the exploration and drilling for and production of oil and
                 natural gas in Saskatchewan and owner of freehold leases, Crown leases and royalty interests in
                 the Province.
             - Respondent: government and attorney-general of the province
             - The legislation was enacted following the sharp rise in the rpice of oil on the world market and
                 created a mineral income tax and a royalty surcharge.
             - The appellant contends that the mineral income tax and the royalty surcharge constitute indirect
                 taxation which falls out of the scope of provincial jurisidiction and that the legislation attempts to
                 regulate interprovincial and international trade.
             - It was held that it was indirect taxation and therefore invalid.
Issue        - Whether certain statutes enacted by the Legislature of the Province of Saskatchewan and
                 Regulations enacted are constitutionally valid?
Holding      - Appeal allowed
Ratio        - “directly aimed at”, not “price fixing”
             - Important fact: 98% of all crude oil produced in Sasketchewan is destined for export to either
                 eastern Canada or the united states of America.
             - Government benefits from increase because generate money from taxes.
             - Regulation of trade and commerce: legislation sets out a floor price for Sasketchewan oil
                 purchased for export by the appropriation of its potential incremental value in interprovincial and
                 international markets, or to ensure that the incremental value is not appropriated by persons
                 outside the province.
             - Oil producer effects the sale of oil at a price determined by the Minister
             - The minister is empowered to determine well-head value of the oil which is produced which will
                 govern the price at which the producer is compelled to sell the oil which he produces.
             - Provincial legislative authority does not extend to fixing the price to be charged or received in
                 respect of the sale of goods in the export market. It involves the regulation of interprovincial trade
                 and trenches upon s. 91(2) of the BNA.
             - Not like Carnation, here the legislation is directly aimed at the production of oil destined for
                 export and has the effect of regulating the export price, since the producer is effectively compelled
                 to obtain that price on the sale of his product.
             - So, legislation is ultra vires of the Legislature of the Privince of Sasketchewan.
             - Gnereating income for province, taxing oil and generating income, why is it the regulation or trade
                 and commerce?
                 Fixing the price is not determinative, intra vires even if there is price fixing, there may not even be
                 an actual effect on the international prices.
             - DISSENT:
             - The power of the Province to tax, contrl and manage its natural resources is plenary and absolute
             - The language of the impugned statutes does not disclose an intention on the part of the province to
                           Constitutional Law – Exam Outline

                     regulate, or control, or impede marketing or export of oil from Saskatchewna. Oil produced and
                     sol means produced and sold within the Provinces. Well-head price by definition means the prica
                     at the well-head of a barrel of oil produced in Sask. The mineral income tax and the royalty
                     surcharge relate only to oil produced within Sask. The transactions are well-head transactions.
                     There are no impediments t the free movement of goods as were found objectionable.
                - So fare as mineral income tax is concerned the incidence of taxation is pegged to the price
                     received for the oil at the well-head.
                - The ultimate position of consumers id unaffected. The only way in which extra-provincial
                     consumers could have benefitted would have been in the event of the Province freezing the price
                     of oil, assuming constitutional competence to do so.
                - The effect, if any, on the extra-provincial trade in oil is merely indirectly and remotely incidental
                     to the manifest revenue-producing object of the legislation under attack.
    - Functionally all the stuff is leaving the province
    - Carnation: sell it to someone in Quebec first, and then that person decides to sell it outside the province, but
       could sell it inside the province. Here, the initial product is sold outside of the province and there is virtually no
       market. In the potash case, there is evidence that Sask. is entering into agreements with other countries, intent
       to control international prices and are not intraprovincial property and civil rights.
    - 3 rules:
       1. Governments acting in agreement, courts like it = carnation
       2. Government acting for its own protection, interferes regulation of trade and commerce = not good.
           Manitoba egg
       3. Governments tring to affect international prices, intereferes regulation of trade and commerce = not good.
           Potash
    - If there is a kind of indirectness to the regulation, a break in the stream of stuff out of the province, that break,
       givs the possibility that the stuff will stay in the province and even though foreseeable that most of it is leaving
       then atleast some of it is staying then it is intraprovincial. CIGOL none of it stays, POTASH none of it stays.
    - Conclusions:
    - Purposes of Crown test, try to start thinking about where the gaps in the law are
    - Introduced double aspect doctrine
    - Identify the rule for goods moving across provincial borders
    - Implicit in this is pith and substance (what is the main purpose of regulation, clearly incidental effect on
       internation market)
    - Analogical reasoning – they illustrated with courts distinguishing and analogizing
            Central Canada Potash Co Ltd. v. Government of Saskatchewan (1979)
Facts           - Facing possible sanctions by US arising out of a complaint of dumping and a depressed market for
                     potash the Sask gov’t instituted a potash prorationing scheme.
                - Almost all the potash was osld outside the prov., the majority being sold in the US.
                - Discussed with New Mexico, and controlled production through licences, which prevent the
                     plaintiff from fulfilling a contract.
                - At trial legislation found to be ultra vires
                - Court of Appeal upheld the validity.
Issue           - Is the prorationing scheme valid?
Holding         - Appeal allowed.
Ratio           - “the true nature and character”
                - Evidence that price is set after an agreement/consultation with international markets
                - The gov’t of Sask. Had in view the regulation of the marketing of potash through the fixing of a
                     minimum selling price applicable to the permitted production quotas. The only market for which
                     the schemes had any significance was the export market.
                - Out of province and offshore sales were the principal objects of the licences and directives
                - Consumption of use within or without Sask.
                         Constitutional Law – Exam Outline

               -    The gov’t of Sask. and its responsible Ministers and their deputies, were acting not under
                    proprietary rights of toehrs, including the appellant. It was strenuously contended by the
                    respondent Government (and in this they were supported by the intervening Provinces) that the
                    natural resources, the mineral wealth of the Province was subject to provincial regulatory control
                    alone, and that production controls or quotas were peculiarly matters within exclusive provincial
                    legislative authority.
               -    Appellant: natural resources are within the jurisdiction of the province, these programs did assist
                    the industry but at the same time had some effect on areas within fed. Jurisdiction. However, in
                    pith and substance, they were programs directed to a matter within prov. Jurisidiction and thus
                    were valid nothwithstanding such ultimate effects.
               -    The situation may be different, where a province establishes a marketing scheme with price fixing
                    as its central feature. Indeed, it has been held that provincial legislative authority does not extend
                    to the control or regulation of the marketing provincial products, whether minerals or natural
                    resources in interprovicnal or export trade.
               -    The present case reduces itself therefore ot a consideration of the true nature and character of the
                    prorationing and price stabilization schemes which are before us.
               -    Canadian Industrial Gas & Oil: provincial legislative authority does not extend to fixing the price
                    to be charged or received in respect of the sale of goods in the export market. It may properly be
                    said here of potash as it was said there of oil that legislations is directly aimed at the production of
                    potash destined for export, and it has the effect of regulating the export price since the producer is
                    effectively compelled to obtain that price on the sale oh his product.
               -    Legislation is a determination by this Court, in obedience to its duty, of a limitation on provincial
                    legislative power.
               -    It is especially important for Courts, called upon to interpret and apply a constitution which limits
                    legislative power to do so in a case where not only the authorizing legislation but regulations
                    enacted pursuant thereto are themselves couched in generalities, and the bite of a scheme
                    envisaged by the parent legislation and the delegated regulations is found in administrative
                    directions.
               -    Yet, if the appraisal results in a clash with the Constituion, it is the latter which must govern. That
                    is the situation here.

Interprovincial Trade Continued and the General Trade and Commerce Power
   -   Recap
   -   POGG power:
      Three branches: emergency, gap and national concern/national dimensions – distinction between national
       concern and gap branch (national concern doctrine is to fill necessary gaps in the Constitution)
      National concern test and its purposes: talked about thr newness branch – did exist but under prov jurisdiction
       and now evolved and didn’t exist at confenderation (does it do any independent work in the test), pulled out
       provincial ability aspect and stripped out 2 distinct kinds of inabilitites – conceptual and functional (saw that the
       concern was the ability to constrain federal powers and not to permit the NC branch to regulate in a whoel range
       of areas under prov justridstion, Old Man River and Anti-Inflation, juxtaposing inflation and pollution against
       marine pollution, why marine pollution satisfies the functional inability branch of the NC test)
      Singleness/indivisibility/indistinctness: pulled out each aspect, why are those pieces there? There may be cases
       where one aspect is not satisfied. Need to know the purposes so to be able to distinguish new facts.
      Intergovernmental agreements: why is an agreement able to solve particular problems of jurisdiction. Canadian
       Marketing case seemed to be ultra vires, what difference does an agreement make in that context? When there
       is unconstitutionalism...
      Property and civil rights exceeded? Trying to determine the provinces powers under prop rights and when the
       provinces enter into the federal government power of trade and commerce.
                           Constitutional Law – Exam Outline

       Preventing: way in which they are acting in the federal power, acting ultra vires, protectionist becuse stops flow
        of interprovincial trade and commerce
       Influencing: purpose of legislation to influence external markets, clear governmental intention
       Primary purposes/effects: primary purpose was and what the incidental effects were, if it merely incidentally
        affects interprovincial trade and primary purpose is to regulate within the province then it is intra vires
       Methodological points:
       Application of multi-factor tests: how to determine whether something fits within a test, and the relevant weight
        given to the factors
       Case-method: analgozinng and distinguishing, trying to tease out the rules, deliver the doctrinal rules and pull
        out the method of analysis
       Significance of different kinds of doctrinal tests: what is the significance of a court choosing a brightline rule,
        i.e. the POGG power only contains the emergency power, as opposed to adopting a multi-factores test/open
        ended standards
       Interpretive points introduced:
       Pith and substance/incidental effects
       Double aspect
   -    Crown Zellerbach: regulates dumping without regard as to whether it affects provinces.
   -    Identify 2 branches of the trade and commerce power: interprovincial and international T & C power, and the
        general trade and commerce power
   -    Examine their purposes and limits
   -    Last class: when does it exceed it’s power and enter into the fed trade and commerce power this class when the
        feds regulate in their jurisdiction and interfere with the provincial power
   -    Methodological objectives:
   -    Case method – analogizing and distinguishing
   -    Application of multi-factor tests
   -    Significance of different kinds of doctrinal tests
   -    Interprovincial trade and commcerce: what’s the boundary between trade and commerce and property and civil
        rights?
   -    Origins:
   -    Montreal railway – intial set of concerns that echoes Parsons, how do we know when the feds regulating within
        the t and c power are regulating in such a way that they affect the provinces constitutional jurisdiction, question
        of balance. The courts are trying to figure out how to set hte ruiles b/e prov and fed so that the feds don’t have
        all the power. But how do we ensure that the fed has the pwer to act as the fed government/to properly function.
        How can the courts respond to the needs when there is the emergence of a national economy
   -    Insurance reference – particular trade, notice that very early in the case about t and c power there is an intuition
        against the feds being able to regulate in a particular industry/trade
   -    Evolution:
   -    1920s Cases: tight limitations, alluded to in the Laskin note.
   -    Denied independent force to 91(2) – basically this section doesn’t have any particular force of it’s own, it only
        means something in relation to some other specific power, like bankruptcy, instead of it being a general
        category it was reduced so to become an illustration of the specific power
   -    Rejected incidental effects – basically in effect rejects this doctrine because if it validly regulates interprovincial
        trade then that would be held to invalid if ti touches upon prov rights.

            Kirkbi AG v. Ritvik Holdings Inc. (2005)
Facts          - Kirkbi held the patent to lego, when the patent expired Kirkbi tried to register a trade-mark with
                   the lego indicia because R began manufacturing products interchangeable with lego. Kirkbi
                   brought a civil action stating that it was infringing s.7(b) of the trade marks act which accounts for
                   unregistered trade marks.
               - At trial stated that purely functional aspects could not be registered as trade marks, and the appeal
                   Constitutional Law – Exam Outline

              court upheld the decision
          -   Ritvik brought an action regarding the constitutionality of s.7(b) and said it was ultra vires
              parliament’s legislative authority under s. 91(2).
Issue     -
Holding   -
Ratio     -   Patents and trademarks are exclusively allocated to federal government. (22) and (23) and control
              over regulation of trade and commerce (international and interprovincial & general t & c affecting
              Canada as a whole)
          -   Categorization allows for fed. Powers to apply only to those 2 (interprovincial trade & general
              trade) areas so not to overlap with prov. Jurisdiction over property and civil rights
          -   Regulating trade marks is a federal power
          -   General trade and commerce: 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.
          -   It is necessary to consider both the impugned provision and the Act as a whole when undertaking
              constitutional analysis. The nature of the relationship between a provision and the statute
              determines the extent to which the provision is integrated into otherwise valid legislation. If the
              legislation is valid and the provision is sufficiently integrated within the scheme, it can be upheld
              by virtue of that relationship: a provision may take on a valid constitutional cast by the context
              and association in which it is fixed as complementary provision serving to reinforce other
              admittedly valid provisions
          -   Test:
              1. Does s. 7(b) encroach on provincial powers?
             although the impugned provision, which creates a civil remedy, encroaches on an important
              provincial power, the intrusion is minimal
              2. the validity of the federal trade-marks act
             determine whether the Trade-marks Act is a valid exercise of Parliament’s general trade and
              commerce power.
             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.
             State the Parliament has jurisdiction only over registered trademarks but not true, implied that
              unregistered are protected as well to maintain the efficiency of the act as a whole. Legal
              characteristics are the same, registered or not, the act even accounts for unregistered trade marks.
             If trade-marks are intended to protect the goodwill or reputation associated with a particular
              business and to prevent confusion in the marketplace, then a comprehensive scheme dealing with
              both registered and unregistered trade-marks is necessary to ensure adequate protection. The
              inclusion of unregistered trade-marks in the regulatory scheme is necessary to ensure the
              protection of all trade-marks. The Trade-marks Act is more than simply a system of registration.
              3. The extent of integration:
             determine whether the provision is sufficiently integrated into the otherwise valid statute. The
              inquiry has two 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. If the
              provision is not sufficiently integrated into the scheme of regulation, it cannot be sustained under
              the second branch of s. 91(2). …
             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.
             Passing-off fills a gap which would create inconsistencies in the regulation of registered and
                          Constitutional Law – Exam Outline

                    unregistered trademarks

            Montreal v. Montreal Street Railway (1912)
Facts         - Challenge to a section of the Dominion Railway Act that regulated through traffic on all
                  provincial railways that crossed dominion railways.
Issue
Holding
Ratio           -   Concern for provincial autonomy
                -   If Parliament could make law applicable to the whole country in relation to matters that were local
                    in nature, stating they were for the POGG then there is hardly a subject upon which it couldn’t
                    legislate to the exclusion of provincial legislation.

   -    AG Canada: considered the Dominion Insurance Act, sought to regulate large insurance companies carrying on
        business across the country. S. 4 prohibited undertaking insurance wihtou a licence, although it didn’t include a
        corporation incoroporated by a province carrying on business within a province. SCC held it to be ultra vires,
        Privy Council agreed because it deprives private individuals of their liberty to carry on the business of
        insurance. Quoting Russell: subjects which in one aspect and for one purpose fall within the jurisdiction of the
        provincial Legislatures may in another aspect and for another purpose fall within the Dominion jurisdiction.
        Authority to regulate for trade and commerce doesn’t extend to regulation by a licencing system of a
        particular trade in which Canadians would otherwise be free to engage in the provinces. Although
        insurance has attained great dimensions so have other businesses which are to-day freely transacted under
        provincial authority. Great caution to be used before finding that a matter has a double aspect.

            AG British Columbia v. AG Canada (The Natural Products Marketing Act) (1937)
Facts          - Purpose of act was to establish regulation of natural products for the benefit of producers and
                  especially to establish effective marketing arrangements and to impose pooling to equalize prices
                  in particular products and areas.
               - Limited to products used outside the province and that were exported.
Issue
Holding         -   Held that the act was invlaid, appeal dismissed
Ratio           -   If it’s about interprovincial commerce, studff moving across borders then it’s okay for the feds to
                    regulate some areas of provincial jurisdiction
                -   One clear exclusion is that it’s not allowed to regulate a particular trade
                -   Another concern: no sweeping regulation if there are to be incidental effects
                -   Possibility of coordination (also in eggs marketing act), if the provinces and feds want to enter
                    into agreements then that is fine
                -   S.91 doesn’t comprise regulation of trades or occupation such as insurance or commodities in so
                    far as it is in the local sense. But does comprise regulation of external trade and interprovincial
                    trade and such ancillary trade as may be necessarily incidental to the exercise of such powers.
                -   Enactments relate to matters which are in substance local and provincial and beyond Parliament,
                    cannot regulate in a sweeping manner so to incorporate regulation of local trade into regulation of
                    non-local trade.
                -   Ok if while regulating for the dominion as a whole trench upon some provincial powers because
                    incidental but here it goes beyond that. Sweeping regulation in respect of local trade is not
                    necessarily incidental to the regulation of external trade or interprovincial trade or both.
                -   POGG:
                -   S.92 aspects may acquire such significance that they have to be taken over by Parl. For POGG.
                -   Not all matters of national concern in the broadest sense of those words but only those which are
                    matter of national concern in such sense as to bring them within the jurisdiction of the Parliament
                    of Canada.
                       Constitutional Law – Exam Outline

             -   ATKIN:
             -   Act purports to affect property and civil rights because affects all products even those which are
                 not connected to inter-provincial and export trade.
             -   It must be possible to combine dominion and provincial legislation so that each within its own
                 sphere could in co-operation with the other achieve the complete power of regulation which is
                 desired. Desire co-operation


          The Queen v. Klassen (1960)
Facts        - Appealing validity of s.45 of the Canadian Wheat Board Act which stated that elevators under the
                act worked for the general advantage of Canada. And elevator operators had to keep a recording
                system of how much grain they processed which could not exceed a stipulated quota. They had to
                enter the amount into the delivery permit book of the producer – maintain an orderly internation
                trade in grain.
             - Klassen, was not recording grain he was buying and incorporating into feeds he was selling
                locally.
             - He was convicted at trial, at appeal and the SCC his case was dismissed.

Issue
Holding
Ratio        -   Functionalism
             -   Pith and substance – export market
             -   Necessarily incidental effects – quotas
             -   Shift in style - looking at facts, economists, professors etc
             -   Regulating purely local transactions which is necessary so that the government can pursue purely
                 national objectives. So it is about the export market. And the quotas are incidental effects, just
                 necessary for that general national purpose.
             -   Accepting that there can be incidental effects.
             -   Klassen, not engaged personally in interprovincial or international trade but not to say that some
                 of his products (the feed he sold) have.
             -   S.16 is necessary and incidental in the control of the export of grain.
             -   Allowing his actions would render the Act ineffective
             -   Interferes with property and civil rights but may be justified if it is necessarily incidental to the
                 other provisions of the Act dealing with international/provincial trade.
             -   Legislation in relation to trade and commerce
             -   Ask: whether the questioned intereference is necessarily incidental or ancillary to (in aid of)
                 effective legislation in respect of the general marketing scheme set up for certain grains by the
                 Act?
             -   Not an attempt by Parliament to interfere with or control the business of flour, feed and seed mills
                 within provinces as an end in itself but the interference with property and civil rights which results
                 under p. II is incidental and ancillary to the achievement of the purpose of the Act because the pith
                 and substance of the legislation s the provision of an export market for surplus grains, a matter
                 which has undoubetly assumed a national importance.
             -   Quotas have several objects, equality of delivery is one. Doesn’t allow for one produce to gain an
                 unfair advatange over others by making them all subject to the same quota system which is not for
                 interprovincial trade but they fix the quantity of grain a producer may deliver into the market
                 system.
             -   This necessary interference with the right of indvidiauls to deliveer and receive grain into the
                 marketing system must be made to fall as evenly as possible on all and justice demands that
                 delivery opportunity be rationed as equitably as is possible among producers. The scheme
                          Constitutional Law – Exam Outline

                    ensures this.
                -   Pith and substance: trade and commerce
                -   Incidental effect: interference with property and civil rights
                -


            Dominion Stores Ltd v. The Queen (1980)
Facts         - Dominion Stores Ltd. was charged under the CAPSA with selling bruised apples that didn’t meet
                  the federal grading standards of Canada Extra Fancy, the trade name they were using. The apples
                  were produced and sold in Ontario. Complex issue because charged under a voluntary section of
                  the act, they were implicated by it only if they chose to use that name, because in essence the Act
                  applied to interprovincial and internation trade only. Further complicating the issue was the fact
                  that the province had legislation that was similar and applied only to intraprovincial trade.
Issue
Holding         -    CAPSA voluntary sections were ultra vires
Ratio           -    Main purpose and incidental effects: regulating for federal purposes that incidentally affect the
                     provinces.
                 - Federal government regulate apples that cross borders but if opt in to that then are subject to it as
                     well even if they are sold intraprovincially
                 - Provinces mirror the fed regulations
                 - Have the feds trying to keep the products quality high – has to meet the standards
                 - Degrading the federal standard if seel apples not in that quality. Really bad apples degrade the
                     federal purpose. Regulation of intraprovincial trade for the purposes of regulating federally.
                 - Parlaiment is limited to international and interprovincial regulation and cannot regulate
                     intraprovincial trade as a part of a general scheme.
                 - Parliament and provinces have adopted cooperative and complementary schemes for the
                     marketing of natural products and it is preferable for provincial law to regulate
                     intraprovincial sales so to avoid wasteful overlapping or double-decking of administration or
                     enforcement.
                 - Wasteful overlapping!! Paramountcy
                 - Privy council case law – doesn’t apply
                 - Should be charged only under provincial legislation
                 - “necessarily incidental doctrine”
   -    Dominion, held that the federal government could not set grading standards for the sale of agricultural produce
        in a province, even though it could do so for produce sold interprovincially, for the intraprovicnal regulation
        could not be said to be incident to the regulation of interprovincial trade.

            Caloil v. AG Canada (1971)
Facts          - Fed gov’t passed regulations preveintg oil importers from transporting any gasoline across a line
                    running north-south through ONT and QUE – to enforce energy policy.
               - Goals: to provide a market for western oil in W Canada and to restrict the sale of imported oil to
                    eastern canda
               - Caloil lost licence because of non-compliance and stated that infringed property and civil rights.
               - Gov’t addreseed this with new legislation
Issue
Holding
Ratio           -   Trying to create a national market for oil, even though it is intraprovincial commerce, it is okay
                    because it is tied into this larger national scheme of regulation.
                -   Created the necessarily incidental doctrine
                -   Restriction on distribution of the imported prrodcut to a defined area is intended to reserve the
                          Constitutional Law – Exam Outline

                     market in other areas for the benefit of products from other provinces of cnaada. The true
                     character appears to be an incident in the administration of an extra-provincial marketing schieme.
                     The intereferece with the loca trade is restricted as it is to an imported commodity which is an
                     integral part of the control of imports in the furtherance of an extraprovincal trade policy and
                     cannot be termed an unwarranted invasion of provincial jurisdiction.
    -   Held that federal regulation over trade matters in provinces was okay if such regulation was necessary to the
        effective regulation of interprovincial and international trade. This, there was still a requirement that goods
        move across borders. The test provided no support where there was no flow or where the Court felt that
        regulation of intraprovincal activity was not necessary to the effective regulation of interprovincial and
        international trade.

            Labatt v. AG Canada (1980)
Facts          - Labatt didn’t abide by the standards sets for maximinu and minimum alcohol content for products
                   labelled “lite”
               - Court found legislation ultra vires
Issue
Holding
Ratio           -   Fails the Parsons test:
                    1. Fed power over interporivincal and foreign trade:
                -   Impugned regulation was concerned with production and local sale and so didn’t fall under trade
                    and commerce. Labatt has breweries in provinces and manufactures and sold on the spot in the
                    province, no need for trade because too expensive and time consuming. Not concerned with the
                    flow and guidance of products through distribution channels but rather with the production and
                    local sale of the specified products of the brewing industry.
                    2. General trade power:
                -   Not of general national concern, concerned with the production of a single industry that was
                    substantially local in character
                -   Not justified under criminal law or pogg power because no national concern
                -   Not under federal labelling power because labelling legislation typically prescribes no standards
                    for the production or marketing of a product, but only requires the revelation of contents or
                    conditions of use.
                -   Dissent: falls under laws relating to trade marks, which is a federal power, creates a national mark,
                    justified as labelling regulations.
                -   Also falls under the general trade power: parliament has the authority to indiciate uniform
                    prescriptions for the manufacture of foods, drugs, cosmetics so to equliaze competitive advantages
                    in the carrinh on of businesses concerned with such products.
                -   Single industry, substantially local in nature
                -   To qualify as light beer, have to satisfy these characteristics
                -   Virtually all transactions for beer happen in provinces, not trade, so substantially local in nature
                -   Sold primarily in a given province whereas dominion stores accepts that apples move across
                    boundaries
                -   Introduce the single industry – beer, which is local in nature, particular trades and single industries
                -   Clear answers in Klassen and Caloil and Labatt Breweries – when do they encroach on
                    intraprovincial trade

GENERAL TRADE AND COMMERCE POWER
  - Canadian National Transpoortation: discusses the geernal trade power and qualifies it. Test is that it must apply
     equally and uniformly throughout the country. General legislation aimed at the economy as a single integrated
     national unti rather than as a collection of separate local enterprises. Such legislation is qualitatively different
     from anything that could practically or constitutionally be enacted by the individual provinces either separately
                          Constitutional Law – Exam Outline

        or in combination. The focus of such legislation is on the general, though its results will obviously be
        manifested in particular local effects any one of which may touch upon “property and civil rights in the
        province”. Nevertheless, in pith and substance such legislation will be addressed to questions of general interest
        throughout the Domionio. The line of demarcation is clear between measures validly directed at a general
        regulation of the national economy and those merely aimed at centralized control over a large number of
        economic entities.
   -    General regulations of the national economy
   -    Not centralized control over ... a collection of separate and local enterprises, general regulation instead of
        regulation over a whole bunch of provinces. Given firmer content to the intuition of the general trade and
        commerce power
   -    Outlines a specific rationale, the reason why regulation of a single trade cannot be federal jurisdiction is because
        it intrudes on the local autonomy

            General Motors of Canada Ltd. v. City National Leasing (1989)
Facts          - Gm manutfactures cars and CL leases cars across Canada. CNL purchases it’s vehicles from GM
                  dealers and not GM directly.
               - in order to purchase cars was partaking in an interest rate support programme but alleges that was
                  giving preferential interest rate support to competitors of CNL who were purchasing from them
                  directly and so exclusion from preferential interest rate was a practice of price discrimination.
Issue          - The validity of s.31.1 of the Combines Investigation Act.
Holding        - Appeal dismissed, act is intra vires
Ratio          - The general trade and commerce power:
                  1. The impugned legislation must be part of a general regulatory scheme
                  2. The scheme must be monitored by the continuing oversight of a regulatory agency
                  3. The legislation must be concerned with trade as a whole rather than with a particular industry.
                  4. The legislation should be of a nature that the provinces jointly or severally would be
                       constitutionally incapable of enacting
                  5. The failure to include one or more provinces or localities in a legilstiave scheme would
                       jeopardize the successful operation of the scheme in other parts of the country.
               - Not exhaustive nor is it exclusive more appropriate appraoah is still a case by case approach.
               - Allows the regulation to be visible and imposes costs both political and economic
               - Why here and not interprovincial? Difference in language. Compensate for open-endedness by
                  imposing costs.
               - What is this stuff doing here?
               - Trade as a whole not a particular industry? In this case it is anti-competitive behaviour not a
                  particular industry. Anti-competitve behaviour, even if that happens within one provinces, BC,
                  the feds can regulate it because it affects the health of the national economy (not computers, beer
                  etc). If you allow it to flourish in one province then it may affect the national economy. There
                  seems to be an assumption that there are certain trades which just have to be in the power of the
                  provinces.
               - Concern over creating a national monopoly – allow the feds to regulate particular industries than it
                  would allow them to regulate alot of stuff. Opens up a slippery slope. Maybe want a kind of line
                  over industry because it is over-inclusive. Allwoing different provinces to compete around
                  particular industries governed by the provinces is important for interprovincial trade. Sends a
                  restraining signal to the federal government. Brightline rule vs. standards, a default, a way of
                  restraining the feds but not exchaustive – some case where it is not present.
               - Set with facts where it’s absent of only thing, argue for purposes.
               - Understand the argument about anti-competitive behabiour, not a single industry but it has
                  national significacen, pg. 377, the importance of a national market and being able to ensure the
                  competition
                           Constitutional Law – Exam Outline

                 -  Can regulate anti-competitive behaviour if it’s in a single province because anti-competitive
                    behaviour has national economic implications.
                - First branch always has to have stuff moving across the broders and this one can regulate stuff in
                    provinces/local in nature.
                - Constitutional inability: like the Crown Zellerbach test, don’t have jurisdiction to regulate over the
                    subject matter in other provinces – provinces can’t do it vbecause not in their jurisdiction
                - Practical inability: a failure of any of the provinces to regulate/defects from the cooperative
                    scheme causes it to fall. – if one of them defects and doesn’t hold up their end of the bargain the
                    whole thing falls apart after there has benn agreement.
                - Approach to determining constitutionality:
                - Test:
                    1. Hhte court must determine whether the provision can be viewed as intruding on provincial
                        powers and if so to what extent
                    2. The court must establish whether the act or a severable part of it is valid, if the scheme is not
                        valid that is the end of the inquiry. If it is valid then:
                    3. The court must determine whether the provision is sufficiently integrated with the scheme that
                        it can be upheld by virtue of that relationship – this requires considering the seriousness of
                        the encroachment
                - Does it encroach on provincial powers?
                - Yes, but it is limited (civil rights).
                - The presence of a regulatory scheme in the CIA: does it contain a regulatory scheme?
                - Combines a complex scheme of economic regulation as a whole and the purpose is to eliminate
                    activites that reduce competition. It is geared at achieving this objective. Elucidation of
                    prohibited conduct, creation of an investigatory procedure and the establishment of a remedial
                    mechanism consitutte a well-integrated scheme of regulation designed to discourage forms of
                    commercial behaviour viewed as detrimenalt to Canada and the Canadian ecnomoy.
                - The validity of the regulatory scheme: it satisfies all the above listed indicia because there is an
                    agency, and the purpose is regulation of trade in general. Doesn’t regulate a single trade or
                    industry. Competition is not of lcoa concern but of national concern.
                - The market for goods and services is competitive on a national basis and provincial legislation
                    cannot be an adequate regulator. There must be economic union, an over-all national policy is the
                    key to efficiency in the produciotn of goods and services
                - Competition policy can be more useful if it is within federal power.
                - Provinces can still regulate competiion when it is in their authority to do so but the point is the
                    Parliament has the constitutional power to regulate intraprovicnial aspects of competition as well.
                - Passes functionally related and necessarily incidental tests
                - Improves the economic welfare of the country as a whole.
    -   Talked about 2 branches:
    -   When does the fed government in pursuing interests infringe on the prov powers?
    -   General trade and commerce power, first articulated in CNT, 5 part test articulated in GM and each of
        the 5 parts and asked what the purpose is: the test is not exhaustive and not exclusvei, pieces can be
        missing but the test can still apply AND because want to see what happens in novel fact situations
    -   Potential problems of application: Kirkbi, good illustration of GM

Recap general trade and commerce:
   - Rationale: idea is that there are some circumstances where the government can regulate for general interests of
       the country – intraprovincial, stuff that is purely local because it is for the purposes of the general regulation of
       the national economy
   - GM test: factors are non-exhaustive and no single factor is determinative, which is why we need to know what
       is and what isn’t important.
   - GM factors:
                          Constitutional Law – Exam Outline

       1. General regulatory scheme – complex regulatory scheme, court is talking about complexity, when faced
           with novel facts and try to determine whether it is a regulatory scheme try to establish it’s complexity
           (trying to absorb an political cost, attracts political attention) 375
       2. Monitored by continuing oversight of regulatory body – directors power under the act, can initiate
           negotiations, hold hearings, range of things that count on these facts that satisfy continuing oversight of the
           body. Highly visible, citizens can see it, another way to hedge in the fed. governments power.
       3. Trade in general – not a particular trade, talks about the idea that it has to have national scope and local
           regulation would be inadequate. GM case, talking about anti-competitive behaviour, in order to have a
           healthy national economy need a national competiton policy in Canada. Test which limits the federal
           governments power, as you generalize particular trades will fall into federal jurisdiction, gives an indication
           – like a brightline rule.
       4. Constitutional provincial inability – in one sense they are constitutionally incapable from stopping anti-
           competitive behaviour in other proinces. If BC wants Alb to stop engaging in it then BC cannot do
           anything about it. Making competition a fed power needed to ensure that there is national competition so
           among all provinces so citizens have access to goods at best possible price – creates a strong national
           market. So, no province can stop another province from doing something so the federal government has to
           take it over. Can’t stop other provinces from doing stuff. Alberta dops prices, and that adversely affects
           BC, BC can’t do anyhitng about it.
       5. Practical provincial inability – imagine that a group of provinces wanted to band together to create a
           competitive market across Canada, all want competitive national economy, free flow of goods, and all the
           rpvinces agre – if one provinces opts out the scheme falls apart and there is nothing the other provinces can
           do to stop that province from opting out which undermines the collective purpose. Cannot enforce their
           desires on other provinces.
   - Can’t practically do anyhitng because they are constitutionally incapable.
Prop and Civ Rights and T & C Power:
   - How do the doctrines fit together?
    Provinces can regulate pursuant to their P a C power and incidentally affect trade and commerce. Carnationa
       Milk
    Federal government can regulate interprovincially pursuant to T & C and incidentally affect prop and civ rights.
       When it primarily regulates p & c it becomes ultra vires. Stuff that moves across borders, and can sometimes
       regulate inside a province. Egg Marketing Board, Wheat cases, Klassen (necessarily related to the regulation of
       national wheat)
    G & T – permits the fed to regulate matters that fall purely in the p & c power, in a province, but if they do so
       pursuant to their power to regulate general trade and commerce for national interest. Important ot have
       regulation of p & c rights because it is for the general good of the national economy. Not regulating goods
       moving across the borders. Arises when you don’t have direct regulation of interprovincial trade. GM test
   -

INTERPRETIVE DOCTRINES I – OVERVIEW, PITH AND SUBSTANCE, ANCILLARY
DOCTRINE
   - Pith and substance analysis
   - Ancillary doctrine analysis
   - Identify steps of anciallary doctrine
   - Understand how substantive and interpretative doctrines inter-relate

Pith and Substance
    - Characterization
    - Of an entire statute or a particular provision (Canada Western)
    - To determine its dominant aim is the purpose of characterization
    - Trying to determine how the objective fits in the substantive doctrines
                          Constitutional Law – Exam Outline

   -    Got a piece of leg. And need to know if it falls in fed or prov and so need to figure out main
        objective and so need to relate the legislation to the diviosn of powers doctrine you already know
        (tests – t&c, p&c, and settled cateogries GM, Kirkbi)

   Things to look at:
   - Text of the law
   - Surrounding events and legislative debate (intrinsic and extrinsic evidence, Handsards are
      legislative debates)
   - Practical effects of the Law are important when legal text suggests one head of power but the
      practical effects are overwhelmingly in the other power (Morgentaler)

            Canadian Western Bank v. Alberta (2007)
Facts          -
Issue          - Whether provincial consumer protection legislation regulating the sale of insurance could be
                   constitutionally applied to chartered bancks, operating under the federal Bank Act, in respect of
                   their promotion and sale of insurance?
Holding
Ratio           -   Principle of federalism:
                -   The fundamental objectives of federalism were, and still are, to reconcile unity with diversity,
                    promote democratic participation by reserving meaningful powers to the local or regional level
                    and to foster co-operation among governments and legislatures for the common good. – divided
                    powers among heads in ss. 91 and 92.
                -   “living-tree” – the interpretation of these powers and how they interrelate must evolve and must
                    be tailored to the changing political and cultural realties of Canadian society.
                -   Doctrines permit an appropriate balance to be struck in recognition and management of the
                    inevitable overlaps in rules made at the 2 levels of legislative power, while recognizing the need to
                    preserve sufficient predictability in the operation of the division of powers.
                -   Constitutional doctrines and how they interrelate:
                    1. Pith and substance:
                -   May concern the legislation as a whole or a particular provision
                -   Consists of an inquiry into the true nature of the law in question for the purpose of identifying the
                    matter ot which it essentially relates.
                -   To determine the P and S must determine 2 aspects:
                    i.       The purpose of the enacting body: courts can consider intrinsic evidence (legislation’s
                             preamble or purpose clauses) and extrinsic evidence (Hansard, minutes of parliamentary
                             debate) in order to ascertain the true purpose of the legislation as opposed to its mere
                             stated or apparent purpose
                    ii.      The legal effect of the law
                -   Corollary is that legislation can to a certain exten affect matters beyond the legislature’s
                    jurisdiction without necessarily being unconstitutional. Dominant purpose is decisive not its
                    secondary effects. Merely incidental effects do not disturb the constitutionality of an otherwise
                    intra vires law.
                -   Incidental means effects that may be significant but are secondary to the mandate of the enacting
                    legislature.
                -   P and S doctrine is founded on the recognition that it is in practice impossible for a legislature to
                    exercise its jurisdiction over a matter effectively without incidentally affecting matters within the
                    jurisdiction of another level of government.
                    2. Double Aspect doctrine:
                -   Some matters are impossible to categorize under a single head of power because they have both
                    federal and provincial aspects. So for one purpose fall under federal and for another fall under
                       Constitutional Law – Exam Outline

                  provincial. Ensures that the policies of the elected legislators of both levels are respected. Ex:
                  dangerous driving, fed = public order, prov = property and civil rights
              -   Recognizes that both Parliament and the prov can adopt valid legislation on a single subject
                  depending on the perspective from which the legislation is considered, that is, depending on the
                  various aspects of the matter in question.
                  3. Incidental Effects:
              -   When these problems arise, resolve them using pith and substance analysis. Case-by-case analysis
                  and the courts incrementally define the scope of the relevant heads of pwer.
              -   The powers of one level of government must be protected against intrusions, even incidental ones
                  so developed 2 doctrines:
                  i.      The doctrine of interjurisdictional immunity: recognizes that our Constitution is based on
                          an allocation of exclusive powers to both levels of government, not concurrent powers,
                          although these powers are bound to interact in the realities of the life of our Constitution.
                  ii.     The doctrine of federal paramountcy: recognizes that where laws of the federal and
                          provincial levels come into conflict, there must be a rule to resolve the impasse. Under
                          our system, the federal law repvails.

          R v. Morgentaler (1993)
Facts         - Abortion no longer illegal. Morgentaler rumoured to want to open up abortion clinic in NS so
                 provincial government enacts legislation making it illegal to perform abortions + 8 other
                 procedures outside a hospital so to ensure non-privatization of medical services and ensure same
                 high-quality healthcare for all.
              - Challegened as ultra vires provincial jurisdiction because criminal in pith and substance.
Issue         - Are the NS Medical Services Act and regulations ultra vires provincial jurisdiction?
Holding       - Legislation is ultra vires, attempt to enact legislation that is criminal in nature.
Ratio         - Test for pith and substance established.
              - Look to the “matter of the law” – leading feature or tru character and the approach must be
                 flexible and the dominant purpose of the legislation is the key to its validity
              - Step 1: look to LEGAL EFFECT, how the legislation as a whole affects the rights and liabilities of
                 those subject to its terms, and is determined from the terms of the legislation itself. – expressly
                 prohibits the performance of abortions in certain circumstances with penal consequences
                 which is a subject traditionally regarded as part of criminal law.
              - Step 2: look beyond the legal effect to the ACTUAL or PREDICTED PRACTICAL EFFECT,
                 inquiry into the social or economic purposes which are attempted to be achieved, the background
                 and circumstances surrounding its enactment, essentially the ultimate long-term effect to be
                 achieved.
              - Use of extrinsic materials: related legislation (in this case the relevant, overruled section in the
                 CC, look to language of both provisions to see if they are virtually indistinguishable then prov. has
                 stepped into criminal realm. If s.251 had not been struck down then the prov. legislation would
                 have been redundant and so just because there is a gap for something in the fed. legislation doesn’t
                 mean that provinces can step in and attempt to regulate it), evidence of the mischief at which the
                 legislation is directed (directed at the mischief proposed by Morgentaler because rumoured to be
                 opening an abortion clinic), and legislative history (the event the occurred during drafting and
                 enactment, the debates showed that the opinion was that the clinic was an evil which had to be
                 eliminated and the privatization csot and quality of healthcare issues were absent in the debates.
                 Also, the severity of the sanctions show that they were aiming to punish abortion as inherently
                 worng) so to determine the intent of the legislature
              - Criminal law: any law which has as its dominant characteristic the prohibition of an activity,
                 subject to penal sanctions, for a public purpose such as pease, order, security health etc.
              - To regulate abortion have to show that anchored in one of prov. heads of pwer (regulation of
                           Constitutional Law – Exam Outline

                     health matters, hospitals, the practice of medicine and helath care policy)
                -    Sets out the 2 heads of pwer, the criminal power test (prohibiotn backed by a sanction for a public
                     purpose) and the provincial power test (ability to regulate hospitals, efficiency, costs etc). The 2
                     possiblities for this particular legislation. The rest of the analysis is the characterization.
                -    Looks at text: suggests efficacy, preventing privatization of abortion (performed outside of
                     hospitals, other procedures – removal of insurance, outward prohibition), could plausibly be abour
                     regulating hospitals. But, abortion regularly seems to fall under criminal law power and
                     prohibiotn could fall under prov but it seems to be federal because there is a sanction and it is for a
                     public purpose. Could plausibly fall under both heads but more so under criminal. In this
                     particular case, look at legislation and compare it to criminal law there seems to be an
                     overlap/duplication obvioualy isn’t determinative because of double-aspect but we can draw an
                     inference from it.
                -    Legislature only enacted this legislation once it knoew that M was coming to open up a clinic,
                     suggests that all they are concernd with is prohibiting this activity and legislative debates all
                     center around banning abortion.
                -    Look at effects: includes aboriotn and other services and there is no relaiotnship between all of
                     them. Looks suspiciously like they are trying to prohibit aboriotn and convering it up.
                -    Concoludes that it is ultra vires.
                -    Looks at dominant aim of the legislation to characterize it under a head of power.
                -    Classic pith and substance analysis
                -    No evidence of prior studies of cost-effectiveness, no obvious link between the sreivces –
                     suggested a punitive purpose
                -    “colourable” – attempt to legislate outside it’s powers

   -    Anciallry docitrine: test
   -    Single doctrine
   -    Prima facie violation triggers the analyss
   -    Part of valid legislation which is intra viers
   -    And is sufficiently integrated into that legislation

            General Motors of Canada Ltd. v. City National Lesaing (1989)
Facts          - CNL suffered loss as a result of a discriminatory pricing policy that constituted anti-competitve
                   behaviour prohibited by the Combines Investigations Act. Civil action brought forward pursuant
                   to s.33.1 and GM said ultra vires Parliament because civil rights are provincial.
Issue
Holding
Ratio           -    Establishes the necessarily incidental doctrine (aka ancillary doctrine)
                -    Step 2: whether and to what extent the impugned provision can be characterized as intruding into
                     provincial powers. (if it does not intrude then the only possible issue is the validity of the act)
                -    Creates a civil cause of action so it does appear to encroach but because only a remedial
                     provision whose purpose is to help enforce the substantive aspects of the Act it is less
                     intrusive. REMEDIAL PROVISION (OPPOSITE IS OE THAT IS ACTUALLY TRYING
                     TO REGULATE SOMETHING)
                -    Also, limited scope, not a general cause of action only one pertinent to the Act. LIMTED
                     SCOPE OF ACTION, ONLY APPLIES TO THIS ACT.
                -    Federal government is not constitutionally precluded from creating rights of civil actions
                     where warranted. PRECEDENT, THE GOVERNMENT HAS DONE IT BEFORE
                -    Step 1: BASED ON THE PITH AND SBSTANCE OF THE PROVISION the court must establish
                     whether the act (or a severable part of it) is valid...If the scheme is not valid then that is the end of
                     the inquiry but if it is deemd valid then the court must determine:
                          Constitutional Law – Exam Outline

               -   Constitutes a scheme validly enacted pursuant to the general trade and commerce power.
               -   Step 3: whether the impugned provision is sufficiently integrated with the scheme that it can be
                   upheld by vvirrtue of that relationship. This requires considering the seriousness of the
                   encroachment on provincial powers, in rder to decide on the proper standard for such a
                   relationship.
               - The provision must be sufficiently related to that scheme for it to be constitutionally
                   justified. The degree of relationship that is required is a function of the extent of the
                   provisions intrusion into provincial powers.
               - Correct approach is to ask: whther the provision is functionally related to the general
                   objective of the legislation, and to the structure and the content of the scheme.
               - There must be a necessary link between impugned provision and the Act, and here it is a
                   well-conceived and integral component of the economic regulations strategy.
               - Provision is bounded by the Act, it is limited and does not create an open ended private right of
                   action
               - Have a single provision where there is a prima facie violation because civil rights are strictly
                   provincial (by way of examples, civil remedies, i.e. Kirkbi are within prop pwers– particular trade
                   or industry, i,e, insuranceor by application of substantive doctrines, POGG – 3 branches, p&c
                   rights, and trade and commerce – 2 branches)
               - Part of valid legislation? Yes, because it satisfies the G & T commerce power, if the larger
                   legislation is invalid then the whoel thing fails – done, go through the larger pith and substance
                   analysis TO DETERMINE WHETHER IT IS VALID LEGISLATION
               - sufficiently integrated into that legislation – in GM and Kirkbi, the offending prvision has to be
                   sufficiently integrated into the legislation so as it goes through it, the greater the intrustion on the
                   other head of power, the tighter the “fit” that is necessary. If the legislation doesn’t really intrude
                   that much, a looser fit is possible, ex: not talking about a particularly intrusive measure, civil
                   rememdies that are just there to enforce the general legislative scheme, adn are sufficiently
                   integrated because there as part of a legislation and not merely tacked on.
               - Problem: seems to be discretionay, have to determine:
                   1. The extent of the intrusion – know what is a minimal intrusion, Kirkbi and Gm
                   2. Looseness or tightness of fit – can’t just have a piece of legislation that is generally valid with
                        a little piece of the legislation that intrudes on the other head of pwer and justify it by saying
                        that that is part of a genrally valid scheme. Well established that ht federal government can
                        create civil remedies.
               - An express power given to the government to violate the division of powers
               - The reason sufficient integration matters is because in order for the legislation to work properly
                   have to have the provision that is deemed unconstitutional – ensures effective regulation and this
                   test checks and ensures that there is a necessity to it.
               - Think about whether or not iti is necessary to give effect ot the generela legislative agenda
               - Look at p and sub. If the provision that violates is not sufficiently integrated than in effect it is
                   colourable (attempt to regulate in other head of pwer)
   -   Conclusions:
   -   Pith and substance (colourability) – morgentaler

INTERPRETIVE DOCTRICE II – DOUBLE-ASPECT DOCTRINE, INTERJURISDICTIONAL
IMMUNITY AND PARAMOUNTCY
   - Recap:
   - Pith and substance doctrine
   - Purpose is to determine the domionant aim of the leglisation either to entire legislation or a
     particular provision
   - When determining can look at:
   - Text
                      Constitutional Law – Exam Outline

-   Surrounding events
-   Legislative record
-   Effects
-   Morgentaler case is the best example of this, when looking at dominant aim characterize it with
    having in mind the various provisions of the Const. in mind either in s.91 or s.92.
-   Know what the tests are, know where the gaps are and this analysis is about slotting the
    legislation into the interpretive stuff
-   Complexities: there are going to be situations where the text is ambiguous but the latter 3 factors
    take you in another direction. So have to decide how to weigh off these factors. If the text is
    really clear and clearly falls under one head of pwer and none other then analysis is done but if it
    is ambiguous then you have a Morgentaler type of situation.
-   Ancillary doctrine:
-   Applies to a single provision that prima facie violates the division of pwers as you go through the
    analysis after you have established the violation have to act whether is it part of a whole
    legislation that is constitutionally valid (if the entire legislation fails the ANALYSIS STOPS, if
    the whole Act violates it then it stops but if the whole legislation passes the Pith and Substance
    test and falls under the relevant head of pwer then) do the integration test (degree of intrusion,
    balancing, how serious is the violation? If it is really serious then it has to be really integrated –
    look at GM) is there a sufficinet fit between this provision and larger scheme, use the GM test
    and argue by analogy as to what the court says fits.
-   Second step: validity of the whole legislation means doing PITH AND SUBSTANCE
    ANALYSIS
-   Relation between 2? How to distinguish them?:
-   In application: pith and substance can apply to either privsion or Act. Distinction is prima facie
    violation, determine what is obvious by categories that have already been established. But if
    cannot establish it because it’s not obvious then go through anciallary doctrine. If not a prima
    facie violation but think that it fails the P and S then go through the anciallry doctrine.
-   Does ancillary doctrine make sense? Seems to warrant unconstitutional action, why is it justified?
    Why is it ok for a province to violate the division of pwers with a single provision just because
    the larger act is constitutionally sound? It seems to be somehow connected to incidental effects.
    We know from P & S analysis that valid legislation can incidentally affect the other powers. P &
    S allows an order of government to incidentally affect another order – this is basically what the
    anciallry doctrine is, it allows for a violation of the other order of governments powers because it
    is incidental to the general valid legislative scheme.
-   P/S – incidental effect = OK
-   Ancillary doctrine – particular provision violates but it is ok because it is incidental and necessary
    to the larger constitutionally valid purpose of the entire legislative scheme. If it is part of the
    scheme then it is incidental to the scheme and it is ok.
-   2 paramountcy tests:
   Impossibility of dual compliance – actual conflict, can’t comply with both pieces of legislation,
    one says yes the other says no (Multiple Accesss)
   Frustration of federal Legislative Purposes (Bank of Montreal case)
   2 different tests that can both apply because if something fails the dual compliance test it is
    automatically gone the paramountcy doctrine kicks in and the fed leg trumps. It is only when you
    don’t have a clear case of it you move to frustration test because when it frustrates it the
    paramountcy and fed leg trumps provincial and provincial leg is rendered inoperative.
    Inoperative means that as long as the fed. legislation the prov. can’t regulate to the extent of the
    conflict. Not a question of validity, why? Because if the feds stop legislating then they get out of
    the regulation they move out of the conflit and the prov. legislation comes back to life. It is valid
    but the only reason it cannot operate is because there is a conflict with the fed. leg.
                          Constitutional Law – Exam Outline

      It is rendered inoperative in both tests!!!!
    -  1 interjurisdictional test
    -  When do the doctrines apply?
    -  Determine the scope of each of the rules is
    -  What kinds of activities are covered under these rules
    -  Pith and substance can be independent of paramountcy – can do a P and S analysis of 1 piece of
       federal legislation without any concern for any provincial acts out there. Not necessarily related.
    - Ppith and substance precedes paramountcy – in order to determine whether or not the
       paramountcy doctrine applies have to have 2 pieces of legislation first that are valid. So need to
       do the pith and substance analaysis first of fed and prov legislation
    - Paramountcy only applies if there is double aspect – idea of the paramountcy doctrine is that there
       are 2 pieces of legislation that are both regulating and both valid.
    - Only way you can get to the conflict rules is if both the pieces of legislation are valid.
             Multiple Access Ltd. v. McCutcheon (1982)
Facts            - Multiple Access Inc. – a federally incorporated company, took part in insider trading with the
                     TSE. The problem is that both the Ontario Securites Act and the Canada Corporations Act have
                     identical provisions prohibiting the activity.
                 - PL is saying that Ontario Act cannot apply to them because they are fed. incorporated and that
                     according to fed paramountcy it is inoperative.
                 - Before reaching the paramountcy issue the Court had to find that the relevant provisions of both
                     Acts were valid and applied to trading of fed incorporated companies
                 -
Issue
Holding
Ratio            - Nuance 1: mere duplication is not a conflict. They have identical effects. The administrators will
                     find a way to ensure there is not double enforcement. Mere duplication will not trigger
                     paramountcy doctrine. No conflict.
                 - Consequences: striking down the federal legislation would leave federal companies, having head
                     offices in those provinces, and their shareholders, without the double protection, which Ontario
                     shareholders now enjoy. A declaration of invalidity of the federal act would create a potential gap
                     in the present regulatory schemes that might be exploited by the unprincipled.
                 - John Deere: the power of legislating with reference to the in corporation of companies with other
                     than provincial objects belonged exclusively to the Dominon of Parliamnt but “securities
                     legislation clearly has a double character” and “there is no simple dichotomy between legislation
                     of a company law character and legislation affecting property and civil rights in the province.
                     Viewed in its proper social and economic context the legislation may well have a double
                     character.
                 - Use the double aspect doctrine which is applicable when the contrast between the relative
                     importance of the 2 features is not so sharp. When, as here, the corporate-security federal and
                     provincial characteristics of the insider trading legislation are roughly equal in importance there
                     would seem little resain, when considering validity, to kill one and let the other live.
                 - It is well established that the provinces have the power, as a matter of property and civil rights, to
                     regulate the trade in corporate securities in the province, provided that statute does not single out
                     federal companies for special tratement or discriminate agains them in any way. But federal
                     incorporation does not render a company immune from securities regulation of general application
                     in a province.



            Commission del la Sante et de la Securite du Travail v. Bell Canada (1988)
                        Constitutional Law – Exam Outline

Facts         -   This case dealt with the application to Bell Canada of a Quebec law giving a right to protective
                  reassignement to a pregnant worker
Issue
Holding
Ratio             1. Legislation over health falls under the jurisdiction of provinces (off a merely local or private
                        Nature)
                  2. Legislation over labour falls under provincial jurisdiction (property and civil rights)
              -   3. Parliament is vested with exclusive legislative jurisdiction over labour relations and working
                  conditions when that jurisdiction is an integral part of its primary and exclusive jurisdiction over
                  another class of subjects (federal undertakings such as Bell etc) – interjurisdictional immunity, but
                  still subject to provincial laws too as long as they don’t encroach on the federal ones.
              -   4. Both have exclusive jurisdiction over same area bc both regulating this area, the province still
                  has it over labor and health but the fed. government has jurisdiction over fed. undertakings so both
                  jurisdiction. Both regulating the same thing.
                  5. Double aspect theory: , doesn’t apply because both had the same objective by similar
                  technique and means. Not compatible, so read down the provincial law and applied
                  interjurisdictional immunity because affecting a vital or essential part of federal
                  undertaking without going as far as imparing or paralyzing it. 2 relatively similar rules or
                  sets of rules may validly be found since they are enacted for different purposes and in different
                  contexts
              -   Must be weary though so not to create one single field of concurrent powers contrary to the
                  purposes of federalism
              -   This rule can only be invoked when it gives effect to the rule of exclsive fields of jurisdiction.
                  Multiplicity of aspects is real and not minimal
              -   The working conditions and labour relations as well as the management of federal undertakings
                  are matters falling within the classes of subjects under federal jurisdiction.
              -   Concluded that both legislators are pursuing exactly the same objective by similar techniques and
                  means. Legislated for the same purpose and in the same aspect.(double aspect doctrine doesn’t
                  apply)
              -   Federal undertaking fall under Parliament’s jurisdiction. So to ensure this and not strip the
                  exclusivity of federal power cannot let provincial powers apply concurrently.
              -

          McKay v. The Queen (1965)
Facts       - Appellants challenging the application of a bylaw which forbade the from displaying a sign of
               federal elemction candidate.
            - Municipal by-laws, provincial legislation that purports to ban all signs on lawns with exceptions.
            - PL wants fed. election signs on his lawn
            - The province said under legislation that he is not permitted to do so because fed election law is an
               area of exclusive fed jurisdiction and so prov cannot regulate in this area.
Issue       -
Holding     - Appeal allowed
Ratio        Scope of the rule:
             What’s a vital part?
             What’s an impairment?
            - Undergo 2 forms of construction: strictly interpreting the words to the particular subject-matter
               with which it deals and if words in a statute are failry susceptible of 2 constructions of which onle
               will result in the statute being intra vires and the other will have the contrary result the former is to
               be adopted.
            - A political activity in the federal field which has thereforeto been lawful can be prohibited only
                          Constitutional Law – Exam Outline

                     by Parliament – not under property and civil rights.
                - Denies the appellant the right to engage in a form of political activity in the federal field which has
                     always been possessed by electors
                - Union Colliery: the abstinenence of Parliament from legislating in a subject matters that is under
                     it’s jurisdiction does not give the provinces the authority to do it.
                - Parliament also cannot, by using general words, effect a result which would be beyond its powers
                     if brought about by precise words.
                - The provincial legislation is read down, read in such a way that it does not violate
                     interjurisdictional doctrine. Says that municiplatiy can regulate all signs just not the federal
                     election signs.
                - Federal regulation law protected by this doctrine. Provincial law is perfectly fine to regulate other
                     signs the problmen arises because tring to regulate federal elections.
                - Provinces have the general power to regulate traffic – so can regulate stuff as long as it is in your
                     head of power – so can regulate federal election sign if it starts to interefere with your regulation
                     of some other power of yours, i.e. it affects traffic. Regulating in a way that really affects
                     provincial jurisdiction.
                - DISSENT:
                - There is no general field of legislation on this subject assigned to the federal Parliament under an
                     enumerated class in s.91 to which the proviso at the conclusion of that section can attach
                - Legislation in relation to property in its pith and substance and incidentally affects the means of
                     propaganda used by an individual or a political party during a federal election campaign.
    - Canada Pacific Railway – clears grass overgrowing the railway lines by burning it. Notice that
       trains are federal undertaking. Seems to be an essential part of ensuring that the federal
       undertaking works. Provincial legislation bans the burning of grass along railway lines as a part
       of valid provincial legislation over the envrironement (old man river tells us that environement
       has double aspect because can be regulated by both). SCC says that it is intra vires. Has another
       alternative.
    - Bell – ultra vires. Not targeting the phone company just regulating employee relations, regulating
       generally within their fed powers of fed undertakings.
    - Id the tests for p and i
    - Id the conditions under which they apply
    - Understood their purposes
    - Examined their scope
            Ross v. Registrar of Motor Vehicles (1975)
Facts           - Convicted of driving while impaired under the CC and one provision allowed trial judge to
                     suspend licence and not let him drive anywhere in Canada, and a copy of form had to be sent to
                     DMV.
                - Trial judge didn’t suspend licence but DMV did in accordance with s.21 of OHTA.
                - Claiming it to be inoperative because conflict with CC>
Issue           - Is there a conflict?
Holding
Ratio           - Using precedent determine that prov legislation re: car offences and licence suspension was valid
                     because province has control over licencing
                - So long as purpose and its immediate effect are to repscribe condition under which licences are to
                     be granted, forfeited suspended etc not repugnant with CC.
                - The CC merely provides for the making of prohibitory orders limited as to time and place. If such
                     an order is made in respect of a period of time during which a provincial licence suspension is in
                     effect, there is, strictly speaking, no repugnancy. Both legislations can fully operate
                     simultaneously. It is true that this means that as long as the provincial licence suspension is in
                     effect, the person concerned gets no benefit form the indulgence granted under the federal
                        Constitutional Law – Exam Outline

                  legislation.
              -   Both are valid
              -   Fed leg unde the criminal code that allows the judge some discretion, when and where he can ban
                  a driver from driving etc.
              -   Can choose not to suspend for a certain period of time.
              -   Prov. leg by contrast says that if someone violates it then there is an automatic suspension, no
                  discretion.
              -   Here, you can comply but you would have to comply with the provincial. The fed. give
                  permission, it is permissible to drive but not mandated that you have to drive. You just don’t
                  benefit from the provision in the CC.
              -   Not a version of true contradiction.
              -   Permissive NOT mandatory which is why there is no conflict which is why it would probably fail
                  under second test (but not generated at this time)
              -   The intention of Parliament is not to exhaustively regulate, if they had that intention then there
                  may have been a conflict.
              -   DISSENT:
              -   The power of the province to impose an automatic suspension must give way to an order for
                  punishment validly ade under the CC and to that extent the provincial suspension is inoperative,

          Multiple Access Ltd. v. McCutcheon (1982)
Facts       -
Issue
Holding
Ratio         -   Paramountcy issue usually requires judges to determine the degree of overlap and/or conflict
                  between federal and provincial statutes that differ in at least some aspects.
              -   Test: can the 2 statutes live together and operate concurrently?
              -   Test: if there is duplication, give power to federal government
              -   The provincial legislation merely duplicates the federa; it does nto contradict it. The provisions
                  can live togheter and operate concurrently (double-aspect, don’t contradict). The legislative
                  purpose of Parliamnt will be fulfilled regardless of which statute is invoked by a remedy seeker;
                  application of the provincial law does not displace the legislative purpose of Parl.
              -   Mere duplication without any actual conflict or contradiction is not sufficient to invoke the
                  doctrine of paramountcy and render otherwise valid provincial legislation inoperative.
              -   Mere duplication is not a problem – there is duplication and both sets of purpses are the same.
                  Both want to regulate and stop corruption.
              -   What would happen if you had duplication for different purposes? Is that a problem? Only if there
                  is some sort of interaction that would render it a problem.

          Bank of Montreal v. Hall (1990)
Facts        - Federal legislation which is mandatory, if you default on your loans immediate seizure. The
                 provincial act requires a notice period and if not satisfied then ability to seize your assets.
Issue
Holding
Ratio         -   Both pieces of legislation were valid
              -   Paramountcy issue:
              -   Only invoked when impossible to comply with both
              -   Duplication is ultimate harmony
              -   There is a conflict because the Bank Act provides that a lender may, on the default of his borrowe,
                  seize his security, whereas the Limitation of CivilRightsAct forbids a creditor form imiediately
                  repossessing the secured article of pain of determination of the security interest. Compliance with
                        Constitutional Law – Exam Outline

                  one entails defiance with the other.
              -   Parliament intention: to create uniform legislation to unite all the banks in Canada
              -   Deferecen to th federal legislation
              -   Asks for immediate action
              -   Requirement
              -   The Bank Act governs and the otherwise valid provincial legislation is rendered inoperative and it
                  cannot regulate because it frustrates the federal purpose.
              -   Federal legislation which is really strict and provincial legislation that is kind of lax.
              -   2 types of reasoning: dual compliance is impossible because there is ACTUAL conflict
              -   And there is a case of frustration of legislative purpose because it is not good enough for the bank
                  to say that they are going to comply with the prov. legislation which is exactly what they say in
                  Ross.
              -   In the Act it does not say you must seize right away – there seems to be some inconsistency in the
                  treatment of dual compliance
              -   Not inconsistent with frustration because the legislative purpose is for national conformity not to
                  allow for variation among provinces. The point of the legislative scheme is for uniformity so if
                  prov. leg allows for variation then it frustrates the fed purpose.
              -   Flag:
                  1. Inconsistency between the treatment of dual compliance cases – not a good fit, can explain
                       Ross as impossible to comply with both but not clear
                  2. Clear that frustrates fed leg purpose
              -   In Bank v. Hall there is an express idea that fed government can regulate uniformly over really
                  important matters
              -

          Rothmans, Benson & Hedges v. Saskatchewan (2005)
Facts        - PL seeking a declaration that s.6 of Sask Tobacco Conrtol Act is inoperative due to s.30 of the fed
                Tobacco Act and the doctrine of federal legislative paramountcy. Both clauses pertain to the
                prohibition of the promotion of tobacco products.
             - Legislation enacted pursuant to noxious activity and within the legislaitn there are specific
                provision that allow for advertisement under certain circumstances
             - Provincial legislation sets out a strict prohibition where minors can enter
Issue        - Is s.6 inconsistent with s.30 and inoperative due to doctrine of federal legislative paramountcy? Is
                the permission granted in fed in conflict with the prov? one is permissive and one is prohibitory
Holding      - There is no inconsistency between s.6 and s.30 that would render the former inoperative pursuant
                to the doctrine of federal legislative paramountcy.
Ratio        - what happens when there is fed. leg that doesn’t create national uniformity?
             - Impossibility of dual compliance? Not a “thou shalt”, the federal legislation gives a permission,
                it’s not a mandate, it’s not a right to sell, it is you have the permission to sell so there is no
                impossibility to compliance. Analogixa to Ross, not 2 conflicting mandatory purposes
             - Is there a frustration of federal legislative purposes? No, because the point is to regulate a noxious
                activity – there is a sense of uniformity. The purpose can’t be that the fed. government wants to
                let the people sell cigarettes to kids, that’s not the legislation the purpose is to regulate. The
                simple fact that someone doens’t benefit isnt’ a departure because the general purspeoe is to
                restrict it with some exceptions and the other is to restrict it where kids are affected so the purpose
                isn’t frustrated.
             - One obvious case of frustration is when it is national uniformity, if it isn’t have to look at the cases
                and the legislation
             - One way of reading it: if the province is more strict then maybe it is ok
             - Doctrine of federal legislative paramountcy: where there is an inconsistency between validly
                          Constitutional Law – Exam Outline

                    enacted but overlapping provincial and federal legislation, the provincial legislation is inoperative
                    to the exten of the inconsistency.
                - Inconsisteny arises if it is impossible to comply simulataneously with both provincial and federal
                    enactments, when provincial legislation displaces or frustrates Parliament’s legislative purpose by
                    makng it impossible to comply with it or by other means.
                - Test:
                    1. Can a person simulataneously comply with s.6 and s.30?
                 Dual compliance is possible – retailer can comply by admitting no one under 18 on to the
                    premises or by not displaying tobacco or tobacco-related products.
                    2. Does s. 6 frustrate Parliament’s purpose in enacting s.30?
                 There is no frustration because the Acts were enacted for the same health-related purposes and
                    there is no inconsistency between the 2 provisions at issue.
SCOPE OF THE RULES
   - WHAT’S AN ACTUAL CONFLICT IN OPERATION?
   - WHEN IS A FEDERAL LEGISLATIVE PURPOSE FRUSTRATED?
   - Does paramountcy doctrine matter anyways? Suddenly allowing governments to regulate for the
      same thing at the same time. A really open paramountcy test (frustration branch) gives federal
      government alot of room and the narrower test (dual compliance) gives the provinces alot of
      room.
   - Corollary because broadly worded provisions create this necessary overlap.
   - The general move is to allow for alot of overlap with a broad test for paramountcy gives the feds
      alot of power.
   - Double-aspect – allows feds to regulate when there is a reaosnble shot that they have the power to
      regulate under their powers.
   - Not policing
   - Whenever the feds choose they can step in and trump prov legislation
   - Morgentaler nt a paramountcy case but instead a P and S case because valid fed. legislation is
      gone.
   - Interjurisdictional immunity doctrine:
    A departure from the mainstream court’s development where the fed government does alot of the
      “shot-calling”
    Who/what benefits from interjurisdictional immunity?
    Federal undertakings
    Only applying to federal undertaking?
    S.92.10(c) – railways, steamships, telegraph, telephones - any business that goes necessarily cut
      across borders and therefore should be regulated by the federal government.
    What’s the rule? What’s the better rule?
    General rule, Canada Western, if you have a federal undertaking then prov law cannot impair a
      vita or essential part of that undertaking. Exs: banks selling insurance, not a core part of what
      banks do (bakns are fed undertakings) and because it’s not essential it doesn’t fall under
      interjurisdictional immunity
    But in Bell, telephones that are fed. undertakings and employee relations are vital. Impairs – if
      the provinces are given jurisdictionto regulate this area of fed. undertakings then they have the
      ability to really affect it, that strikes an essential part of the functioning of the telephone company
      which is a federal undertaking.
    As a purely conceptual matter there is a departure.
    The whole point of p and s, double aspect etc is that the orders of government can regulate in the
      same area or in eachother’s incidentally
    Interjurisidctional measn tey cannot regulate a vital and essential part (cannot regulate in a way
      that would allw the provinces to effectively impair the federal undertaking) the federal
                          Constitutional Law – Exam Outline

       undertaking AT ALL. Provinces can regulate employee reliation, that falls within their powers
       and they are not specifically targeting Bell they are just regulating under their power. Under pith
       and sub it is valid but under interjurisidction immunity it is invalid.
           Canada Western Bank v. Alberta (2007)
Facts          - PL, chartered banks, relying on the doctrines of interjurisdictional immunity and paramountcy
                     applied for a declaration that the Insurance Act was either constitutionally inapplicable to or
                     inoperative in relation to their promotion of insurance.
               - Federal Bank Act authorizes chartered banks to promote insurance (related to credit cards, travel,
                     creditors’)
               - Alberta’s Insurance Act regulates the promotion of insurance through consumer protection
                     legislation. This Act requires businesses that sell insurance (travel agents, car dealers) obtain a
                     certifate of authority from Minister stating that they have complied with all regulations. In 2000,
                     it was amended to include banks.
Issue          - Whether the authorized creditor insurance products are so vital and essential to lending that they
                     join lending at the core of banking?
Holding        - Not vital, so appeal dismissed.
Ratio          - IJI – doctrine of limited application, classes of subjects in ss. 91 and 92 must be assured a basic,
                     minimum and unassailable content immune from the application of legislation enacted by the
                     other level of government. Reciprocal doctrine, protects both heads of power even if in practice
                     it’s been used to protect federal legilsatoin. Courts, when interpreting, should favour the ordinary
                     operation of statutes enacted by both levels of government when there is the absence of conflict
                     because the measures are usually taken to further the public interest. Broadly speaking, this
                     doctrine was used to protect that which makes certain works or undertakings things (Aboriginal
                     lands) or persons (Aboriginal peoples and federal appointed corporations) specifically of federal
                     jurisdiction. But broad interpretation is inconsistent with the principles of federalism and the
                     other doctrines which realize that overlapping are unavoidable. IJI eliminates the possibility of
                     legislation having incidental effects and can unintentionally creates a centralizing tendency in
                     constitutional interpretation.
               - Need a narrow application: determine level of intrusion on the core of the power of the other level
                     of government – it is when the adverse impact of a law adopted by one level of government
                     increases in severity from affecting to imparing without necessarily sterilizing or impairing that
                     the core competence of the other level of government or the vital or essenatil part of an
                     undertaking it duly constitutes is placed in jeopardy.
               - Basic, minimum and unassailable content: core of the legislative power, the minimum content
                     necessary to make the power effective for the purpose for which it was conferred.
               - Vital or essential undertaking – not co-extensive with every element of an undertaking
                     incorporated federally or subject to federal regulation. There is no interjurisdictional immunity
                     provided that the application of the provincial laws does not bear up on those federal subjects in
                     what makes them specifically of federal jurisdiction.
               - Federal paramountcy – when there is actual conflict in operation as where one enactment says yes
                     and the other says no, the same citizens are being told to do inconsistent things, compliance with
                     one is defiance of the other. Prov legislation can add requirements to a fed law. Must establish
                     incompatible federal intent, frstration.
               - Order: pith and substance, federal paramountcy and then IJI
               - Note: insurance under prov jurisdixtion so vlaid law
               - At issue: requiring collateral vs promiting the acquisition of a product that could be used as
                     collarterl. By promoting optional insurance the bank is not engaged in an activity that is vital or
                     esstnail to banking.
               - No operational incompatibility with fed Bank Act – since 2000 have been complying with both,
                     all the appellants have the requisite certificates. Prov law doens’t prohibit what the federal law
                         Constitutional Law – Exam Outline

                    permits.
                -   No frustration of the federal purpose – federal legislation is permissive

REVIEW OF FEDERALISM
  - Paramountcy: conflict rules and the scope of their application
   Tricky part about paramountcy and interjurisdictional is what is the scope?
   When is there impossibility of dual compliance? Ross, Multiple Access, cannot obey both sets of
     regulations. Complicated by Bank of Montreal v. Hall, introduce the frustration of federal
     legislative purposes.
   Frustration of purposes: Bank of Montreal easy case because it is national uniformaity and any
     deviation from it is frustrating. More subtle cases is Rothmans, determine it independent of
     national uniformity and see whether or not there is a frustration. Not about national uniformity
     about something else and need to determine what it is.
  - INterjurisdictional Immunity: Scope fo the rule
   What is a vital part? Provincial legislation in such a way that it impairs a federal undertakings.
     MacKay case, Bell2, CPR. Privinces regulating under valid environmental jurisdiction and
     prevented them from burning grass and found that it didn’t violate interjurisidctional immunity.
     Why not? Presumably a part of operation of train, like labour regulations are part of operation of
     telephone company. Are there choices that CPR could have in clearing railway tracks, yes, they
     don’t have to burn.
   What is impairment? When trying to figure out if something impairs, in Bell there is no option on
     how to regulate they just have to. In CPR they have choices as to who they are going to clear the
     tracks. So, if you have choices, then the provicinail regulation doens’t impair you.
   CPR – if the federal government burns grass then nuisance to everyone around them and
     effectively being given a licence to regulate areas of provincial jurisdiction.
   McKay – provinces regulating signs on lawns and caught within are federal election signs, and
     court finds that regulation of federal election falls within fed. government jurisdiction. Province
     is prohibited from regulating federal elections at all so the prohibiton on signs which extends to
     election signs means that provinces aren’t allowed to do it – interjurisdictional imunity applies.
   Allowing the federal government to benefit from the kind of immunity effectively allows the
     federal government to regulate in areas of provincial jurisidiction.
  - How to break down a problem:
   If one entire act – pith and substance
   If one provision – pith and substance, if ultra vires apply ancillary doctrine.
   It 2 acts: pith and substance on each and determine if paramountcy doctrines apply (or 2
     provisions) have to make sure that each are valid before moving on. If either is invlaid then don’t
     have to do paramountcy because it only apples to valid legislation. (2 versiosns: Impossibility of
     dual compliance, a frustration of federal legislative purposes – 2 kinds of cases where it is
     national uniformity, Bank of Montreal, and the cases where it isn’t and have you determine what
     it is, Rothmans)
   If provincial legislation regulates a federal undertaking (federally incorporated company) then
     apply interjurisdictional immunity doctrine
  - Substantive doctrines:
   Prop and civili rights: reason by analogy to determine if regulating interprovincial t and c. When
     is a province exceeding its jurisdiction by regulating t and c?
   Interprovincial trade and commcerce: reason by analogy to determine if regulating prop and civ
     rights. Intraprovincial in a way that is ultra vires.
   Reason by analogy – how do cases fit together?
   General trade and commerce – how to apply a multi factor test?
     1. General regulatory scheme
                         Constitutional Law – Exam Outline

       2. Monitored by continuing oversight of regulatory body
       3. Trade as a whole, not industry
       4. Constitutional inability
       5. Practical inability
      2 branches: interprovincial and general (stuff that has national significance but doesn’t
       necessarily involve things moving across, GM test)
   -   POGG:
      Emergency branch: deference and time limited, can’t exist forver
      National dimensions branch: how to apply a multi-factor test
       1. Separate and distincit national emergency
       2. Newness
       3. Singleness, distinctiveness and indivisibility
      Functional and conceptual indvisibility: salt water vs. fresh water (crown zellerbach) seems to be
       conceptual, salt fed and fresh prov.
      Functional is unclear, because Ola Man Rive and Anti-Inflation, can’t give fed government power
       over anti-inflation or pollution generally because too many areas given to them. Allows them to
       regulate way too much in the provinces. Marine pollution is functionally divisibile. Old Man
       River, can divide and allocate to either branch of government.
      Conceptual – is there a real difference between circumstances of area of jurisdiction given to
       prov. vs. fed
       4. Provincial inability
   -   Look for: 1 piece of leg vs 2 pieces, with one p & s, etc than substantive doctrines
   -   Klassen, an interprovincial trade and commerce case.
   -   Federal paramountcy – can have provincial paramountcy, prov can trump in certain areas – but in
       certain areas it is more important to have fed regulation
   -   Reason by analogy – rty to figure out how to extend a set of facts. Carnation, Egg Marketing etc,
       cases that look kind of inconsistent. How do you distinguish them, need understanding of facts
       and why they give rise to an international dimension. Have specific facts, murky statement of
       rule, and draw it out through complicated facts.
   -   Multi-factor tests – non exhaustive and non determinative, so what happens if you don’t have a
       particular factor in there. Looked at purposes to determine why they are there. Which one is
       most important. Explicit, list checklist, but challenge is what happens when they are missing or
       conflicting?
   -   Why do provinces have regulation over securities? Provinces get it because the feds didn’t create
       a national act. Also, intuitive because security deals with provinces.
   -   About finding gaps in the law and making you argue one way or the other...acknowledge the
       uncertainty and argue for it. if there is a fact that can go either way argue for an outcome.

INTRODUCTION TO THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
   - Rights and federalism overlap:
    Minority protections
    Institutional competence
   - Debate about whether courts are competent to get involved in division of powers disputes
   - S.1, and hints of it within definition of various rights
    Centralization/regional variation
   - Charter used as a centralizing instrument
   - Built into the structure of the Charter
    Interpretation/doctrinal rules
   - Courts interpret constitution to protect interests and create doctrinal rules for this.
                          Constitutional Law – Exam Outline

HISTORY
   - Statute of Westminister (1931) – shift of authority away from imperial government. Interesting
     to us today because within it there is a section that reserved a right to amend the BNA to the
     imperial parliament. S.7 reserves the power to amend it with imperial parliament. Debate about
     how to patriate the constitution, how to vest authority within Canadian government. Amending
     formula. How you structure the amending formula has incredible implications.
   - The Rowell-Sirois Report (1940) – implicit in the division of power cases governing economic
     regulation. During wars/after wars increase over social services, umeployment and pension etc,
     take up alot of the budget and narrative forcuses on how do we pay for these things? Fiscal
     capacity. Emerging requirements of the welfare state. How does Quebec retain the capacity to
     govern over these things to it’s full capacity for the identity of the Quebecers. Huge amount of
     jurisdiction given to feds because they are extremely expensive. These amendments were given
     effect after the parliament of Canada consulted with the legislatures of various provinces.

IMPORTANT EVENTS
   - Fulton-Favreau – proposed a formula for amending the constitution – how to distribute resp. For
     amendments to the constitution? Parliament objected due to concern about enrshining a specific
     formula that would restrain quebec’s authority to negotiate on certain spheres of authority. Quiet
     revolution is in effect, and so Quebec starts carving out desire for province to get huge authority
     of amending power
   - The Victoria Conference – first inkling of a constitutionalized Charter. Same set of debates arise,
     protection of rights and freedoms, and debate over amending formula which causes the
     breakdown of negotiations.
   - The first Refereendum – party Quebecois comes to power, referendum and first real threat of an
     independent Quebec. Triggers a higher urgency for constitutional amendments and ensure that
     quebec finds it place in confederation.

NATURAL RESOURCES AND WESTERN ALIENTATIN
  - Oil crisis – massive shortages in oil causes prices sky rocketing and feds put limit on prices (
     which benefits consumers but not provinces that are oil rich)
  - National energy policy – federal governments response to the oil crisis, price controls and
     taxation.
  - Federal invasion in areas that should be in provincial power.

CONSTITUTIONAL NEGOTIATIONS
  - Who objected to the Charter? Concern that economic rights wwould be narrowly interpreted and
     judiciary would take over areas of social policy.
  - Why is s.33 in charter? Concern about the ability of the Charter to homogenize social policy and
     undermine social policy. S.33 doens’t apply to s.3-6 (democratic rights and mobility rights) and
     16-23 (language rights) excluded and can invoke it with s. 2, 7-15. Allows a legislature to say
     that notwithistanding a violation of the Charter the legislation. Compormise on Trudeau’s part, 5
     years (length of government term). Vests ultimate control over rights and government policy in
     legislature and gives the provinces alot of room because they can also invoke it. Provincial
     autonomoy and judicial concerns are mitigated.
  - Fiscal concerns expressed by quebec get into the constitution
  - Why do we have judicial review/protection for individual rights?
   Charter guarantees a range of rights and the courts have the ability to strike down legislation if
     these are contravened. For protection of individuals liberties, there is a sphere of rights that
     cannot be touched.

RUSSELL: The Political Purposes of the Canadian Charter of Rights and Freedoms
                           Constitutional Law – Exam Outline

    -   Implied rights, common law constitution and judicial review do not afford rights to the extent of a
        Charter
    -   Why judicial review?
        1. Minimum baselines that the government cannot step over
        2. Counter majoritarianism – allow the majorities to override the minority rights (Roncarelli v.
             Duplessis). Tyranny of the majority if left to legislature and so need protection of minorities.
             Judges are impartial, independent.
    -    Why protect rights?
       Process failure
       Individual dignity/minimum baselines
    -   But what about the federation?
    -   Is the charter inherently centralizing? At a macro level, the who rationale of the Chrater was to
        guarantee rights to Canadian citizens, that couldn’t be abrogated, and were the same and applied
        to all. Legislative supremancy doesn’t govern a citizen’s rights and responsibilities. “Chartered
        citizens”. Juxtaposed against this is federalism, citizens for the purposes of provincial
        jurisidcition or federal jurisidciton with the Charter, identical rights across all borders (concern is
        that it ignores the diverse policy interests of provinces). Another reason is structure of judiciary,
        federally appointed, and homogenizing. Whether or not it is going to be sensitive to differences
        across the country.
    -   Roncarelli – the legislature creates an administrative scheme and the powers. Variation of what
        rights look like depending on where you come from in the country.
    -   Common law constitution – doesn’t protect rights, vary
    -   How does the Charter accomodate regional variation? S.33, available to the provinces. They
        want to override a judicial decision about rights and decisions they can. Allows for some
        measure of variation. Overridden for a period of 5 years – but how can you have universal rights
        if they can be overridden (Trudeau’s argument)
    -   Quebec main case of invocation of s.33 – illustrates regional variation (Ford case)
    -   S.1 – will justify violations/objectives if they are demonstrably justified so gives alot of leeway.
        Proportionality branch – what is minimally impariring will vary from province to province. So
        these 2 secitons, operating together, allow for variation across provinces.
    -   Fundamentally about rights but hints of federalism concerns are still present.

BUT WHAT ABOUT LIMITED JUDICIAL COMPETENCE?
  - Constitutional interpretation – how can courts determine whether something is minially
     impairing? Why should courts get to define what rights are? Not obvious that courts are the most
     competent. Maybe because independent, impartial – job is to be decision maker
  - Constitutional doctrine – court will acknowledge its limited competence especially under s.1
  - Constitutional dialogue - 3 things that allow for dialogue (still allows the courts to define the
     agenda – always the courts that set the terms and the fact the legislature gets to respond doesn’t
     mean its a genuine dialogue, if there is a genuine dialogue it’s under s.33 – a bit like disallowance
     but not nreally because invoked really rarely, electoral costs in invoking it are huge, suggestion
     that it should be limited only to the federal government, concern about the political costs mean
     that although there is a mechanism for overriding the constitutional culture doens’t permit it, even
     though there is something that supposed to preserve prov autonomoy, because the constitutional
     culture doens’t accept it rarely invoked)
   Courts says minimal impairment and legislature finds less impairing means – minimal
     impariment
   Court sets standard and says that leg has violated a right and they leg can come back and pursue
     their objective in a way that is more reasonable – language of reasonableness in certain rights
     provisions, use standards so legislatures can respond (s.7,8,9,12) deosnt’ meet a range of
                          Constitutional Law – Exam Outline

        reasonableness and leg respond by bringing themselves within the range. Working within the
        court’s defnintin which is broad.
       S.15 – often about underinclusion, of governmental programs, the government has the option to
        make it’s program more inclusive or it can eliminate a program. Says that if a government does
        something has to do it in a way that is equal. S. 15, under-inclusion, the problem is that the
        legislauter doesn’t take into account certain groups and so the leg can respond in 2 ways: making
        it’s program more inclusive or by abolishing the program – all that it requires is that if a gov’t
        acts, acts in a non-discriminatory way.
    -   Charter as contributing to national unity
    -   The fundamental basic rationale for this constitutional strategy was the perceived value of such a
        measure as a popular and unifying counter to decentralizing provincial demands in the Canadian
        constitutional debate.
    -   Post-WWII, heterogenous population which was in need of a written code protecting rights
    -   The emphasis on the connection between a 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.

CONCLUSIONS
  - the charter and relationship with CONSTITUTION, concerns about federalism, minority
     protection are carrid into Charter through jurisidprudence and history, doens’t come from
     nowhere, comes from debates from constitution
  - think about rights and logic, what is the rationality and critiques of right
  - relationship between courts, government and rights – involved in a dialogue of mutually
     establishing what rights are. But how much dialogue is there? S.33 is supposed to provide for
     rela exchange but culture odens’t permit it.
THE COMMON LAW CONSTITUTION
   -    Implied bill of rights – individual rights are protected and provinces cannot abrogate or else
        they are legislating within the criminal power
   -    Roncarelli v. Duplessis – judicial review, someone who is empowered by statute to act is only
        allowed to act as authoirized by Parliament, cannot for arbitrary reasons use your office.
   -    By 18th century individual rights were divided into:
   -    Political rights – the right to participate in government, including right of representation and
        voting
   -    Civil rights – which were rights of individuals to liberty from restraint by government,
        especially freedoms of the person, speech, religion and property.
   -    Also established the rule of law - a claim that government and the people were bound equally
        by the law and that the government must always obey the law.
   -    Common law rights because made by judges, based on decisions are the courts were a
        repository of the rights and the means of enforcement.
   -
HOGG AND BUSHELL: The Charter Dialogue Between Courts and Legislatures
          - the Chater can act as a catalyst for a 2-way exchange between judiciary and legislature on
              the topic of human rights and freedoms, but it rarely raises an absolute barrier to the
              wishes of the democratic institutions.
          - Courts force a topic onto the liegislative agenda (through judicial review) that the
              legislative body would have preferred not to have to deal with, and often also make
              suggestions. Resembles a dialogue.
          - 4 features that facilitate dialogue:
          - S.33 – notiwithstanding clause, legislative override that will liberate a statute from s.2
              and ss.7-15. Overcome a judicial decision and re-enact original law without interferecen
              from courts.
                           Constitutional Law – Exam Outline

            -   S.1 – rights are subjected to such reasonable limits prescribed by law as can be
                demonstrably justified in a free and democratic society. R v. Oakes, important objective,
                rational connection to the objective, minimal impairment, salutary effects must outwiehg
                the deleterious effects. When courts strike down, give reasons justifying decision which
                are available to the enacting body to incorporate into new law.
            -   Qualified charter rights – 7,8,9,12 admit the possibility of corrective legislation after
                judiciary has struck down a law
            -   Equality rights – s.15, usually underinclousive, leaving a group or indidival out and
                judiciary forces legislature to re-draft law to include them.
            -   Note: where the objective of legilstioan is unconstitutional the court has the last word and
                is a barrier to dialogue.
            -   Dialogue may occur even when laws are upheld
            -   The decisions of the court almost always leave room for a legislative response
            -   Judicial review not a veto, a beginning of a dialogus on how to reconcile the
                indviidualstic views of the Charter with social and economic policies beneficial to the
                whole community.

APPLICATION OF THE CHARTER
          - Recap:
   Motivations behind and objections to the C.A 1982: provincial auotonomy and concern of
     extending power of the judiciary
   Continuity between federalism and rights
   Rationales for rights, who defines, who protects: constitutional baselines that can never be
     infringed
   Courts and government are engaged in a dialogue?
   S.15 – only requires that if the government acts, must act in a way that is non-discriminatroy
   S.33 – integral part of the bargain for getting the charter enshrined – constitutional mechanism
     beign present within the constitution but fading in importance

SUBSTANTIVE OBJECTIVE
 - What is excluded from the application of the Charter?
 - Which actors are subject to the Charter?

METHODOLOGICAL OBJECTIVE
 - Interpreting the Charter
 - Constructing broad language in cases? Broad language used and then qualified.

SECTION 31(2)
 - THE Charter applied to:
 - Parliament, government of Canada
 - All matter within the authority of Parliamanet
 - Legislature, government of each province
 - All matters within the authority of the provincial legislature

HOW TO INTERPRET S.32:
 - Priority rule: the Charter only applies if we are talking about intra vires governmental action.
   Legislation within the exclusive jursidiciton of the levels of government.
 - Inclusive vs exclusive list? Only acitons by Parliament and provincial governments? In order to
   resolve this debate have to determine how to interpret the Charter (large, liberal, purposive
   interpretation) have to give the Charter it’s full effect which doesn’t tell alot.
                           Constitutional Law – Exam Outline

 - Why should the Charter only apply to Parl. And prov.? Because the purpose of the Charter is to
   protect people against governmental action and the corollary is that it only restrains government
   action, no other kind (exclusive) but not large and liberal interpretation. If the point of the Charter is
   to protect vulnerable individuals than why limit it to governmental actions? Why not protect against
   powerful interests? Large corporations, abusive individuals.
 - S.52 – all laws that aer inconsistent with the constitution are invalid – common law is also a law – so it
   should be subject ot s.32 review and can come to this conclusion by looking at s.52 or s.1 (prescribed
   by law which could conceivably be construed to mean common law)
 - Look at provisions themselves and then interpret large and liberal, purpose – rare that looking at
   sections will deliver an answer – what is meant by law? That emanating form legislatures, look at
   other sections of the Charter but need to couple with other types of arguments.
 - 2 strategies:
     Large and liberal
     Other sections – no section of the charter can be read inconsistently with the other
     Priority rule – if the legislation fails under the division of powers, you don’t get to the Charter –
         do a division of powers analysis first.
 - Common law as between 2 private actors – Charter doesn’t apply (like a contract)
 - Common law – agreements as between government and private actors is subject ot the Charter –
   reason the common law applies is because the government is acting as a private actor, not acting
   pursuant to their legislative authority (Godbout)
 - Common law – acting as a private actor

WHAT IS EXCLUDED
- purely private actors acting in a private capacity – life contract – Dolphin Delivery – between 2 private
actors and no government actor.
- instance of overbroad language – private law litigation “private actors acting in private capacity”
- not executing any sort of government action
- what about the courts? The actions of courts are excluded from Charter review. Some actions of courts
are subject to Charter. If the Court causes delay that is an infringement of an accused’s rights, that is
judicial action which is subject to the Charter. Applies to courts in very limited circumstances.
- do these exclusions make sense? Enter into a restrictive covenant that is racial (cannot sell land to an
asian-canadian) assume that there is no legislation dealing with human rights. The problem is that there
are certain kinds of acitons that are reprehensible between private actors, disproportion in power, private
actors exerting coercive authority – if the point of the Charter is to protect disadvantaged minorities then
why read s.32 exclusively.
-

WHAT KIND OF ACTIVITY IS SUBJECT OT THE CHARTER?
-Eldridge
- 2 ways Charter applies to governmental action:
1. Direct and precisely defined connection between specific government polict and impugned conduct – if
you are not an entity that is by your very nature a governmental agency, something else, hospital in
Eldridge
2. All activity if by its very nature or degree of control the entity is government – by their very nature are
government and all your activity is subject to the Charter

MACKINNEY VS. UNIVERSITY OF GUELPH
Per Dickson C.J. and La Forest and Gonthier JJ.: The wording of s. 32(1) of the Charter indicates that
the Charter is confined to government action. It is essentially an instrument for checking the powers of
government over the individual. The exclusion of private activity from Charter protection was
                           Constitutional Law – Exam Outline

deliberate. To open up all private and public action to judicial review could strangle the operation of
society and impose an impossible burden on the courts. Only government need be constitutionally
shackled to preserve the rights of the individual. Private activity, while it might offend individual rights,
can either be regulated by government or made subject to human rights commissions and other bodies
created to protect these rights.
The fact that an entity is a creature of statute and has been given the legal attributes of a natural person is
not sufficient to make its actions subject to the Charter. The Charter was not intended to cover activities
by non-governmental entities created by government for legally facilitating private individuals to do
things of their own choosing.
While universities are statutory bodies performing a public service and may be subjected to the judicial
review of certain decisions, this does not in itself make them part of government within the meaning of
s. 32. The basis of the exercise of supervisory jurisdiction by the courts is not that the universities are
government, but that they are public decision makers.
 The fact that a university performs a public service does not make it part of government. A public
purpose test is simply inadequate. It is fraught with difficulty and uncertainty and is not mandated by
s. 32. Although the Charter is not limited to entities discharging inherently governmental functions, more
would have to be shown to make them subject to Charter review than that they engaged in activities or
the provision of services that are subject to the legislative jurisdiction of either the federal or provincial
governments.
 The universities are legally autonomous. They are not organs of government even though their scope of
action is limited either by regulation or because of their dependence on government funds. Each has its
own governing body, manages its own affairs, allocates its funds and pursues its own goals within the
legislated limitations of its incorporation. Each is its own master with respect to the employment of
professors. The government has no legal power to control them. Their legal autonomy is fully buttressed
by their traditional position in society. Any attempt by government to influence university decisions,
especially decisions regarding appointment, tenure and dismissal of academic staff, would be strenuously
resisted by the universities on the basis that this could lead to breaches of academic freedom.
 The actions of universities do not fall within the ambit of the Charter because they do not form part of
the government apparatus. The universities were not implementing government policy in establishing
mandatory retirement. If, however, universities formed part of the "government" apparatus within the
meaning of s. 32(1) of the Charter, their policies on mandatory retirement would violate s. 15 of the
Charter

SO WHAT ARE THE LIMITS
-what degree of conncetoin/specific a policy is necessary to trigger? Have to be doing something that is
directly and effectively related to the impugned policy.
- the court in Eldrgdige says that that is a specific and direct action in relation to the policy by an actor
that is not in its very nature a governmental entity.
-how direct? To what degree does the relation have to be?
- have a set of facts, a rule that is broadly worded – legal reasoning
- really all activity, all contracts? Godbout – people who enter into employee contracts with the city have
to live within cuty limits’ Longueil is by its nature an enittiy that is government.
- The contract is challenged with the Charter.
- under certain circumstances waive your Charter rights (s.11)
- Charter challenge – the court says that it is a contract of adhesion (she has no real ability to alter the
terms) she cannot exercise her Charter rights. Her liberty interest is the ability to chose where she wants
to live and with this contract she doesnt’ have this. S.7 violation. Why does the Charter even apply? The
fact that she could chose maybe negates that there is a violation because she waives her rights/consents to
it.
- the contract however DOES apply/is subject to the Charter.
- when she tries to exercise her s.7 right and move and then she is fired violates her s.7 right.
                           Constitutional Law – Exam Outline

- the state acts through the contract, and that action is subject ot Charter view.
- if you are a governmental actor than all you actions are subject ot Charter right.
- eldridge – something that is not by its very nature a governmental actor so has to satisfy the test of
degree and relation
- something that is by it’s very nature a governamental actor than all actions are subject to Charter
scrutiny

WHAT ACTORS/ACTIONS ARE INCLUDED
-2 kinds of government actions:
1. action pursuant to governmental powers – these powers are independent of any statutory grant
(prerogative powers) and when it acts in this way it does things like buy property, kind of acts like a
private actor.
* the government itself, exercising common law (or prerogative) powers – buying property/prison/makes
a contract and sells. And all actions are subject ot Charter scrutiny
* the government’s agents (control test) – MacKinney case, the government in itself is not acting but the
government exerts a higher degree of control over that agent. There is a university and the government is
found not ot have siufficient control over the institutions. Entities are not themselves government but
subject to governmental control (community colleges) but not hospitals or universittes.
- when acting within these areas there is a high degree of Charter scrutiny because in it’s nature
governmental.
2. action pursuant to statute
* statute authorizing action, including delegations – Eldrige, statute authorizes the hospital to do stuff.
Delegations, the legislature/parliament can delegate authority over to the executive. Human rights
tribunals act based on authority delegated/granted to them by Parliament not acting pursuant to inherent
governmental powers.
- in Godbout – court goes through a list of factors to determine whther it is an inherent governmental
actor, municipal councils have the power to make laws etc (everything they do makes them subject to
scrutiny). City council gets its powers directly from the government (provincial) the provinces delegate a
huge amount of authority to them and municipalities are entirely under the control of provinces. They
execute the governmental actions as a delegation, delegated through statute. Acts inherently as a
agovenrment actor because it has a complete delegation from the privnce. All it’s actions are
governmental in nature not a specific delegation like in Eldridge.
- everyting an entity does is subject to charter scrutiny vs. only certain things are subject to scrutiny,
things that are given to them by statute. Godbout vs. Eldridge
*statute creating rights and obligation

WHAT ABOUT INACTION?
-failure of ogvenrment to act
- legislative silence
* Vriend, legislation that is underinclusive, it doens’t include homosexuals. And so, government inaction
can violate the Charter. Both by the leg and exec.
*positive rights (has to provide some sort of service in order to protect certain rights, Dunsmore fails to
provide unoi protections, collective bargaining) vs failure to protect (Virend, failure to protect against a
certain kind of discrimination, forget homos, also Eldridge, if the government wasn’t providing services
to everyone then not a problem)
- What are the implications for private action?
* common law operates when there is no statute and common law between private actions there is no
subjection to Charter (Dolphin Delivery). Vriend, landlord is permitted to discriminate by the common
law, there is no protection due to legislative silence. If the purpose ois to protect individuals agains the
government and not private actors then isn’t Vriend inconsistent? Governmning private transactions
between private actors, human rights acts govern private transactions. In Virend, the legislature actively
                          Constitutional Law – Exam Outline

turned it’s mind to excluding homos. What if it was inadvertent? What if they forgot? There is
government action here, advertent or inadvertent, legislature fails to act and common law continues to act.

MACKINNEY VS. UNIVERSTIY OF GUELPH
CONCLUSIONS
-interpreting s.32
-constructing broad judicial language
- idenitifed circumstance when the Charter applies.
              Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. (1986)
Facts                  Questioning the validity of a court order restraining the appellant union from picketing the
                         premises of the respondent because they were engaged in a labor dispute with Purolator for
                         whom the respondents were doing work.
                       The Canada Labour Code did not regulate secondary picketing and so had to be decided by
                         common law. Relied on tort of inducing a breach of contract and injunction issued to stop it.
                       Claimed that is was a violation of their freedom of expression.
Issue
Holding
Ratio                  Peaceful picketing enjoyed protection pursuant to s.2(b).
                       Because Dolphin was not related to Purolator than an injunction was reasonable.
                       Does the Charter apply to common law? Looks to s.52 which states that any law inconsistent
                         with the Constitution is of no force or effect. Also, excluding common law which governs
                         alot of rights and obligations of individuals would be unrealistic.
                       Does the Charter apply to litigation between individuals? Looks to s.32 which deals
                         specifically with Charter application and the actors to whom it applies. They are the
                         legislative, executive and administrative branches of government. It will apply to them
                         whether or not their action is invoked in public or private litigation. It would seem that
                         legislation is the only way in which a legislature may infringe a guaranteed right or freedom.
                         It will apply to common law only in so far as the common law is the basis of soem
                         governmental action which infringes a right or freedom.
                       To regard a court order as an elemnt of governmental intervention necessary to invoke the
                         Chrater would, it seems to me, widen the scope of Charter application to virtually all private
                         litigation.
                       An element of government action and the claim advanced must be present before the Charter
                         applied.
                       Where such exercise of, or reliance upon, governmental action is present and where one
                         private party invokes or relies upon it to produce an infringement of the Charter rights
                         of another, the Charter will be applicable. Where, however, private party A sues private
                         party B relying on the common law and where no act of government is relied upon to
                         support the action, the Charter will not apply.

            Godbout v. Longueil (1997)
Facts              City of Longueil adopted a resolution where all permanent employees had to have permanent
                      residence there and if moved out of the city for any reason could terminate employment
                      without notice.
                   PL moved to a neighbouring municipality and her employment was terminated
                   SCC held that it violated s.5 of Quebec Charter and s.7
Issue
Holding
Ratio                  Municipalities are subject to the Charter – where entities are governmental in nature – as
                        Constitutional Law – Exam Outline

                       evidenced by the degree of governmental control exercised over them, or by the governmental
                       quality of the functions they perform – they cannot escapre Charter scrutiny. The ambit of
                       s.32 is wide enough to include all entities that are essentially governmental in nature and is not
                       restricted merely to those that are formally part of the structure of the federal or provincial
                       govnerments.
                      Were the Charter to apply only to those bodies that are institutionally part of the government
                       but not to those that are governmental in nature (or performing a governmental act), the
                       federal government and the provinces could easily shirk their Charter obligations by
                       conferring certain of their powers on other entities and having those entities carry out what
                       are, in rality, governmental activites or policies.
                      Municipalities are governmental in nature:
                  1.   Democratically elected
                  2.   Possess a general taxing power
                  3.   Empowered to make laws
                  4.   Derive their existence and law-making powers from provices who confer governmental power
                       upon them (and provinces are subject to Charter)

          Eldridge v. BC (Attorney General) (1997)
Facts         3 deaf boys who used sign language to communicate wanted it to be included in medical services.
                 Up to a medical services commission to decide and they decided against it.
Issue        
Holding      
Ratio         it is possible for a legislature to give authority to a body that is not subject to the Charter. Ex:
                 privte corporations because cna’t implement specific governmental policies and have contractual
                 and proprietary functions.
              But quasi-public institutions independent from government but still have the authority to
                 implement government policy or exercise delegated governmental powers.
              If action violates Charter must establish that part of government within the meaning of s.32 of the
                 Charter.
              When an entity is determined to be part of the fabris of government the Charter will apply to all its
                 activities even those that seem private in nature – so not to evade their Charter responsibilities.
              the Charter applies to private entities in so far as they act in furtherance of a specific governmental
                 program or policy (so not to evade their constitutional responsibilities by delegates
                 implementation or policies to private bodies)
              in order for the Charter to apply to a private entity, it must be found to be implementing a specific
                 governmental policy or program.
              The Charter may apply to a private entity when:
              The entity is itself government for the purposes of s.32(1) – based on its nature or degree of
                 governmental control over it
              With respect to a particular activity that can be ascribed to government. This demands an
                 investigation not into the nature of the enittiy whose activity is impugned but rather into the nature
                 of the activity itself. One must scrutinize the quality of the act at issue, rather than the quality of
                 the actor.
              Here, the hospitals carry out a specific governmental objective because the Act provides for the
                 delivery of a comprehensive social program. Hospitals are the vehicles the legislature has chosen
                 to deliver this program.
              Also, the government has delegated tot he Commission the power to determine what constitutes a
                 medically required service. Commission acts in governmental capacity.
                          Constitutional Law – Exam Outline

            Vriend v. Alberta (1998)
Facts               Challenge to omission of sexual orrientaiotn from Alberta’s IRPA which prohibited
                       discrimination in public notices, services, rentals, employment or trade union membership on
                       the basis of race, religion, color, sex, marital status, age, acnetstry or place of origin.
                    Vriend worked for King’s college and dismissed when confirmed that he was gay.
Issue              
Holding             The omission violated his equality rights and should be read in.
Ratio               Does s.32 prohibit consideration of a s.15 violation when that issue arises from a legislative
                       omission?
                    Determine whether the subject of the challenge in this case is one to which the Charter applies
                       pursuant to s.32
                    The relevant subsection s.32(1)(b) states that the Charter applies to the legislature and
                       government of each prvince in respect of all matters within the authority of the leigslautre of
                       each province. There is nothing in that wording to suggest that a postivie act encroaching on
                       rights is required; rather the subsection only speaks of matters within the authority of the
                       legislature.
                    The application of the charter is not restricted to situations where the government actively
                       encroaches on rights.
                    The challegen concerns an Act of the legislature that in underinclusive as a result of an
                       omission, s.32 shoud not be interpreted as precluding the application of the Chrater.
                    Deliberate decision to omit sexual orientation from the provision of IRPA is an act to which
                       the Charter should apply.
                    Omission ensures that hose discriminated against are not protected by procedures of Human
                       Rights Commission.

CHARTER – S.7 PRINCIPLES OF FUNDAMENTAL JUSTICE
THERE ARE 6 PFJS:
  1. LAWS SHALL NOT BE ARBITRARY – RODRIGUEZ
  2. VOID FOR VAGUENESS
  3. VOID FOR OVERBREADTH
  4. REQUIREMENT OF MENS REA – NO ABSOLUTE LIABLITY
  5. SHOCKS THE CONSCIENCE
  6. RIGHT TO SILENCE
        - Recap:
        - Application of the Charter: It applies to
           1. Legislation
           2. Statute authorizing private actor to engage in specific action – Eldridge, the hospital
               is not itself a governing body but acting under authorization from government
           3. The government itself (list, pg. 787) or entitly that is governmental in nature because
               of its functions (Godbout – municipality, not prov or Parli but because of general
               nature of them it is governmental in nauter because of it’s functions, delegation of
               full governmental authority to municipalities from rpvinces))
           4. The government’s agents – not government itself, bot government in nature, but
               subject to government control (McKinney – not about governmental in nature or
               specific authorization but an entity that is subject to governmental control)
           5. McKinney (legally autonomous, the university is not under control, in addition the
               university is not engaged in activity that is specifically authorized by statute) sets out
               test for control that is to be satisfied by a government actor: direct and routine
                        Constitutional Law – Exam Outline

                  government control (contrast it with Douglas/Kwantlen – the minister could pass
                  specific by-laws directing and controlling what the college did)
          - Determine: the idea is to figure out if it is government, government by function or direct
             control and if it is then anything it does is subject to charter scrutiny. Alternatively, is
             there statutory authorization for something that is not governmental (eldridge) and if it is
             then scrutiny only applies to the extent of that authorization. No satisfaction of any then
             no Charter scrutiny (Dolphin)
          - Priority rule – s. 32, have to deal with federalism first, only go to Charter once you know
             that the government is acting within the scope of it’s division of power and head of
             power
          - Governmental inaction (Eldridge) – can also be subject to Charter scrutiny. When is
             government inaction subject to Charter scrutiny? Eldridge is an example, government
             inaction results in differential treatment. Under inclusive under s.15, because inaction to
             ppl that are hearing impaired. The hospital just doesn’t extend it’s free services to
             hearing impaired, nothing available for them, the hospital fails to act within the specific
             statutory authorization.
          - Legislative silence – Vriend, the policy just does not extend to same-sex couple. S.15,
             underinclusive, the human rights act has a gap and doesn’t extend to gays and lesbians.
          - Policy question: should private action be excluded, if enforced by the Courts? Private
             action is excluded, but someone vindicating their rights under private law can enforce it
             through courts. The state gives enforcement to their private preferences, but because it is
             not direct government action it gets excluded from Charter scrutiny. Prviately,
             problematic behaviour get enforced by the Courts but it is not subject to Charter scrutiny.
             Drummond Wren (covenant attached to property that is discriminatory, against Asians,
             and the courts enforce it because action between 2 individuls and no state acotr, prvided
             there is no human rights legislation.)
          - Today:
             1. identify the steps in a s.7 analysis
             2. Id the content of the POFJ
             3. Consider the relationship between s.7 and s.1
             4. Constitutional interpretation – text and purposes
             5. The role of policy arguments in s.7 reasoning.
          - Step 1 in the s.7 analysis: id the s.7 interst at stake and determine if it has been violated.
          - Step 2 (if necessary) id what PFJ is at stake and determine whether the vilation of
             interest is consistent iwth the PFJ
          - Cumulative tests: only get to step 2 if you have established a violation of 1 of the 3
             interests, if not then stope
          - Step 3 (if necessary): if a s.7 interest has been violated and the violation is not in
             accordance with the PFJ the GO TO S.1
          Rodriguez v. British Columbia (Attorney General) (1993)
Facts              PL suffered from Lou Gherig’s and wanted a declaration allowing her to have assisted suicide
                       if she became unabale to do it herself.
                   Problem: s.24(1)(b) of the Criminal Code criminalizes assisted suicides
Issue              Does s.24(1)(b) violates s.7 of the Charter?
Holding            No
Ratio              STEP 1 IN ANALYSIS – IDENTIFYING THE INTEREST
                   Majority says it is a violation of security of the perons which is concerned with the well-being
                       of the person.
                   Pg. 1093 – security of the person interest, is engaged. The security interest considered in light
                       of the life and liberty interest. The security is compromomised, by the legilstiona, because
     Constitutional Law – Exam Outline

    detracts form her personal autonomy.
   Her ability to make a choice that is fundamentally important to her engages liberty (some
    choices get protection) which is most clearly violated when subjected to imprisonment. Can`t
    make choices for herself. Liberyy at stake because takes away the fundamental ability to
    make a choice about her life.
   Clear case of security of the person being violated s.43 of the CC, spanking law, physical
    integrity is being affected. here, is the fact that she has to endure through immense suffering
    and deterioration analgous to violation of physical integrity.
   Mind is still there while body isn`t which engages the security interest (psychologicalstress
    and pain) and her liberty is engaged because not free to make the choice.
   Her inability to make a choice causes psychological stress which engages/violates security of
    the person
   Extension of physical integrity to psychological integrity
   STEP 2 IN ANALYSIS – IDENTIFYING THE PFJ AND WHETHER VIOLATION IS
    CONSISTENT WITH IT
   PFJ – about protecting life, protecting the vulnerable from being induced to commit suicide.
   Concern is how do you protect the vulnerable? Might commit suicide even if they don’t
    freely consent to it.
   If have a rule that is a blanket prohibiotn than protect the vulnerable IND.
   Sanctity of life and PFJ – connection? Blanket prohibiton and sanctity of life. Does the
    deprivation of the right advance state interest?
   Pg. 1095 – the law cannot be arbitrary. The blanket prohibiotn is related to the sanctity
    of life and it is not arbitrary it advances that interest. There is a connection between the
    means chosen and the objective shought which is protection of vulnerable and the
    blanket phrohibiotn is not arbitrary because it advances it.
   If something is arbitrary is violates the PFJ. The protection of the vulnerable grounded
    (which is state interests) in the sanctity of the life and it is rationally related to the
    objective, it is not arbitrary. No arbitrary law.
   S. 7 is a qualified right, and the violation has to be in accordance with the PFJ and s.1 is
    almost always a free ride.
   No s.7 violation- why is the statute consistent with the PFJ? The PFJ is that the laws cannot
    be arbitrary, the legilsaitons has to forward the interst sought. “no law can be arbitrary”
   Policy arguments:
   What role in defining the interests? Don’t have one
   What role in determining the content of PFJ and whether there was a violation?
    Allowing an objective to be determined which is related to the legislation and so not arbitrary.
   Is there a concern about institutional competence? Who is the court to determine what the
    sanctity of human life is? Why do they get to determine it? why are they the relevant actors?
    Courts engaging in a legislating role.
   Legislation is valid and desirable which fulfils the governments objectives of preserving life
    and protecting the vulnerable.
   When considering the POFJ must engage in a balancing of the interest of the state and the
    individuals, also must consider the relationship between the provision and the state interest
   Prupose of legislation is the protection of the vulnerable who might be induced in moments of
    weakness to commit sucide, human life should not be depreciated by allowing life to be taken
   Withdrawing treatments vs. euthanasia – allowing nature to take it’s course vs. death resulting
    directly from human action
   Euthanasia vs. palliative care – intention is important because former intend kill and latter
    intend to ease pain
                        Constitutional Law – Exam Outline

                     Allowing it shows that state condones killing, so in upholding respect for life discourages
                      desire to commit suicide
                     Also, there are concerns about abuse
                     DISSENT:
                     Distinction between passive and active suicide is arbitrary because there is no rational basis
                      for it. allow suicide prohibit assisted suicide.
                     Parliament has set up a scheme which allows the physically able person to commit suicide
                      lawfully but the person who is unable cannot commit a similar act
                     Also, law has recognized that if there is a valid juisfitification for bringing about death then
                      the person who does so will not be held criminally responsible (self-defence)
                     S.1 analyisi: objective is to prevent abuse which will use it as a cloak for murder and fear that
                      even where consent is given it may not be voluntary and instead influenced by others
                     May be supplemented by making it law that before assisting in suicide seek court order
                      allowing it based in circumstances and situation

          Re BC Motor Vehicle Act (1985)
Facts
Issue
Holding
Ratio                S. 7 DRAFTED with the phrase PFJ because didn`t want substantive protections to be
                      available .
                  Should PF be isolated to issues of procedural fairness? No, it should be extended beyond
                      that.
                  Why? Clear intention of the drafters was to limit the PFJ to procedural fairness concerns but
                      here extend it.
                  Pg. 276 – legislature left it to the courts to interpret it, if they wanted it to be about procedural
                      fairness then they could have included that but chose not to so the language permits it. broad
                      interpretation, independent of their intentions. If don’t then might unduly limit the 3 interests.
                  Textual, structural and policy analysis.
                  S. 7 cannot be read narrower than the following sections, 8-14.
                  Have clear legislative intentin and the courts ignore it.
                  PFJ include natural justice and procedural protection and substantive protectins.
                  Concern about extending it? courts are going to make determinations that they are not
                      qualified enough to do. Ex: who are they to decide that life is sacred adn when it is sacred and
                      when it plays into s.7 analysisi?
                  The principles of fundamental justice are a qualifier of the right not to be deprived of life,
                      liberty and security of the person
                  Ss. 8-14 (procedural issues) address specific deprivations of the right to life, libery and
                      security of the person in breach of the principles of fundamental justice, and as such,
                      violations of s. 7. They are designed to protect, in a specific manner and setting the right to
                      life, liberty and secutiry of the person set forth in s. 7. It would be incongruous to interpret s.7
                      more narrowly than ss. 8-14
                  The POFJ are to be found in the basic tenets of our legal system. The do not lie in the realm
                      of general public policy but in the inherent domain of the judiciary as guardian of the justice
                      system
          -   Malmo-Levine test for PFJ:
              1. rule must be a legal principle
              2. significant consensus that the rule is fundamental to the operation of the legal system
              3. rule must be a manageable standard.
                          Constitutional Law – Exam Outline

           Seems like rule about arbitrariness satisfies all parts of this test.
            -
           Relationship between s.7 and s.1:
            -
           Inherently limited right because of PFJ, if in accordance than done analysis but if it
            -
           violates the PFJ then move on to s.1
           1. Should violation of PFJ be demonstrably justified in a free and democratic
               society? Seems counterintuitive.
           2. Arbitrariness in s.7 and rational connection in s.1? Yes, might be able to have
               something that is arbitrary but if the objective is different under s.1 than that in s.7
               then can pass. Usually, when everything fails under s.7 it will fail under s.1
       - Rodriguez case – have a disabled woman, suffering a disadvantage imposed by law that
           is not imposed on able people. Needs physician because she cannot do it herself. Able-
           bodied people can do it, the law distributed the benefit differently between one
           enumerated group (disabled) and everyone else. Incky to allow equal access to death.
       - Conclusions:
       - Constitutional interpretation
       - Steps in s.7 interpretation
       - The function of policy arguments – doing major work for the court’s resaons.
CHARTER S.7 – LIFE, LIBERTY AND SECURITY OF THE PERSON
       - Recap:
       - 3 steps in s.7 analysis:
           1. Id the interest at stake and determine if there is a violation and if there is, then...
           2. Go to PFJ, and can be in accordance but if it violates the PFJ then...
           3. Go to s.1
       - Cumulative, only get to 3 if you pass through 1 and 2
       - Constitutional interpretation and BC Motor Vehicles:
     Intentions – to exclude anything but procedural fairness, if they wanted to exclude
       substantive principle of justice they could have done so. Intention of the Leg was to exclude
       from the protection of the PFJ anything other than procedural fairness, not substantive
       principles (just fair trial etc) and here the court reads in an exception for absolute liability,
       because it violates the PFJ, there needs to be a requirement of mens rea.
     Text – could have excluded substantive PFJ through the wording
     Structure – broader than others for a reason, s.8-14, purely precdural protectins that follow
     Values – if we intrpte PFJ narrowly, we might threaten the interests at stake
       - PFJ include procedural as well as substantive principles – foundational to a legal system,
       - Rodriguez:
     What is the interest?
        Noticed that the language is unclear, talks about the security interest in light of the life
           and liberty interests
     What’s the PFJ?
        The sanctity of human life, and determined that the relevant PFJ was the rule against
           arbitrariness
     What role for policy arguments?
        The deprivation of the liberty interst that provokes the psychological stress which
           undermines her security interest
        Idea of the the relevance of sanctity of life, passive and active euthanasia, policy
           arguments that are open play a vital role
        Play a part in defining what the relevant interst is – sanctity of human life
       - TODAY:
       - IDENTIFY THE SCOPE OF THE LIBERTY AND SECUTRITY OF THE PERSON
           INTERESTS
                          Constitutional Law – Exam Outline

           -   IDENTIFY VARIOUS PFJS
           -   EXTENDING POLICY RATIONALES
           -   MAKING FACTUAL ANALOGIES

SECURITY OF THE PERSON:
   1. Physical integrity – s.43 of the Crim Code
   2. Psychological integrity – severe psychological stress beyond regular norman daily stress BUT not
      nervous shock

            B.(R.) v. Children’s Aid Society of Metropolitan Toronto (1995)
Facts                Sheena B was born with medical disorder that required surgery and transfusion which was
                        contrary to parent’s beliefs (Jehovah’s witnesses). Children’s Aid applied for wardship and
                        got it and went ahead with the surgery
                     The parents brought a motion claiming that their rights s.2(a) and s.7 had been violated.
                     Lost at trial and appeal
Issue               
Holding             
Ratio                Liberty interest:
                         Freedom from physical constraint
                         Freedom to make fundamental choices – Morgentaler, Godbout, in this case the right to
                            chose medical treatment for your kids
                     Should the choice be internally restricted or not?
                     The right to make this kind of decision falls within the liberty interest - LaForest
                     Iacobucci – there has to be a limit when it infringed on the fundamental interests of someone
                        else, here hurting the kid.
                     POFJ pertain to the justice system. They are designed to govern both the means by which one
                        may be brought before the judicial system and the conduct of judges and other actos once the
                        individual is brought within it.
                     The type of liberty s.7 refers to must be the liberty that may be taken away or limited by a
                        court or by another agency on which the state confers a coercive power to enforce its laws.
                     The POFJ must therefore be capable of being relevant to the rights that s.7 is designed to
                        protect. They must be capable of being implicated in the restriction of the rights set out
                        otherwise these rights cannot be guaranteed.
                     The parental interest is an individual interst of fundamental importance to our society so
                        intervention must be justified
                     The state can properly intervere in situations where parental conduct falls below the socially
                        acceptable threshld. But in doing so, the state is limiting the constitutional rights of parents
                        rather then vindicating the constitutional rights of children.
                     Case here, Sheena is being deprived of her s.7 right – the child’s right must not be completely
                        subsumed to the parental liberty to make decisions
                     An exercise of parentaly liberty which seriously endangers the survival of the child falls
                        outside s. 7
                     If invades the best interests of the child – not an activity protected by the right to libery in s.7
                     Would result in jeopardizing the Charter’s goal of protecting the most vulnerable member of
                        society.
                     Constitutionally protected right to make decisions for child with no state interference = dead
                        kids
                     When the fundamental choice affects the benefit to the child – the child can’t make the
                        decision for themselves and not letting the State do seomthing affords no protection for child
                         Constitutional Law – Exam Outline

                       Limited vs unlimited – LaForest says not limited, and if the State steps in it has to be in
                        accordance with the PFJ
                       Here, liberty interest is violated but in accordance with the PFJ because threre was procedures
                        to follow (parent had the right to be represented by counsel and fair hearing)
                       Parental interest not limited by the interest of the kid, but here they can because fair hearing,
                        notice etc – procedural

PRINCIPLES OF FUNDAMENTAL JUSTICE
         A CRIMINAL DEFENCE CANNOT BE ILLUSORY – Morgentaler, s.251 purports
            to give a defence to women who seek a therapeutic abortion.
         LAWS CANNOT BE UNDULY VAGUE – Canadian Foundation for Youth, use
            reasonable force is constitutional? Whether reasonableness is unduly vague, court reads
            in exceptions (can’t harm them, education purposes etc) dissent - whatever kinds of limits
            are being read in have been more or less disregarded by courts, making the term unduly
            vague. Morgentaler, “health” why is it so vague that it creates an illusory defence and
            reasonabonelss doesn’t.
         PROCEDURES MUST BE FAIR – B.R. G.J., when does a parent get legal aid? In
            these kinds of procedures when is the State under an onbligation to provide a lawyer?
            Complexity of the hearing, seriousness of the interest, and capacity of the individual.
            Failure to provide legal iad is unfair when assess the 3
        Canadian Foundation for Children and the Law v. Canada (Attorney General) (2004) violation of
        physical integrity
Facts      PL challenged the s.43 of the Criminal Code, spanking law, as violation of s.7 and 15.
           Argument was rejected by SCC
Issue     
Holding   
Ratio      s.43 does adversely affects a child’s security of the person however it does not violate a principle of
              fundamental justice because:
           procedural safeguards to protect the interest of the child exists, represented by Crown at trial
           it is not a POFJ that laws affecting children must be in their best interests
           it is not unduly vague or broad because it sets boundaries, delineates a risk zone for criminal sanction
              and avoids discretionary law enforcement
           force is for corrective purposes not punishment and the child must be able to benefit from it, must be
              capable of understanding. Cannot use force to harm children or for the prospect of harm.
           DISSENT:
           “reasnaoble under the circumstances” is unconstitutionally vague and therefore vilates s.7 adn is
              not in accordance with the POFJ
           Reasonable force is not a workable standard and children’s interests are engaged – reasonableness is
              contingent on cultural, ethical and polcitcal backgrounds
           Doens’t pass s.1 and must be struck down – same effect could be reached by defences of necessity
              and de minimis which will excuse parental use of force in certain circumstances

            New Brunswick (Minister of Health and Community Services) v. G.(J.) (1999)
Facts         Appellant denied legal counsel when challenged the temporary cusotody application of the
                respondent to extend period another 6 motnhs.
              Province refused legal aid on the ground that custody applications weren’t covered.
              Can he be removed from the custody of the parents?
Issue         does the extension (and denial of legal aid) violate her s.7 guarantee?
Holding       yes and it is not saved by s.1
                     Constitutional Law – Exam Outline

Ratio     provides an example where psychological integrity is compromised. State is imposing distress and
           making a judgement regarding the person’s character, their authority, stigmatizing the parent
           (judgement of fitness) and interferes with parent-child relationship BUT not all wil violate s.7
           because if child imprisoned then that is not a judgement of a parent. To engage s.7 there must be the
           state making a judgement of the parent.
          Dgree of stress that rises to a high enough threshold, not nervous shock but in a range higher than
           everyday stress
          How do you work off the degrees if intensity? The assault on psycho integrity is that it undermines
           something that is linked to a person’s sense of personhood/sense of self/dignity.
          for a restriction of security of the person t be made out the impugned state action must have a serious
           and profound effect on a person’s psychological integrity. The effects of the state interference must
           be assessed objectively, with a view to their impact on the psychological integrity of a person of
           reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness but must
           be greater than ordinary stress or anxiety.
          The stigma and distress resulting from a loss of parental status is a particulary serious consequence of
           the state’s conduct
          What unites them is interference with a person’s expression of themselves – psychological integrity
          Need an underlying policy rational for something that unites the cases and make distinctions based on
           facts
          The subject matter of s.7 is the state’s conduct in the course of enforcing and securing compliance
           with the law, where the state’s conduct deprives an individual of his or her right to life, liberty or
           security of the person.
          A child custody application is an example of a state action which directly engages the justice system
          Principles of fundamental justice:
          Need a fair hearing before an impartial arbiter and the paramount consideration should be the child’s
           best interstest
          The parent is the most fit to offer evidence relating to quality of life the child has been receiving and
           so if denied the opportunirty to participate effectively at the hearing, the judge may be unable to
           make an accurate determination of the child’s best interests. Theer is a risk that the parent will lost
           custody of the child when in actual fact it might have been in the chidl’s best interests to remain in
           his or her care.
          Parents and child’s security is compromised – the longer the separation the less likely the parent will
           ever regain custody. The best intersests of the child are said to lie with the parent.
          Proceedings such as these are serious and complex and so an unrepresented parent wil ordinarily
           need to possess superior intelliegence etc to effectively present her case.
          Appellant needed to be represented
          Right to a fair hearing doesn’t always require representation – the need is directly proportional to the
           seriousness and complexity of the proceedings, and inversely proportional ot the capacities of the
           prent.
          Section 1: the deleterious effects of the policy far outweight the salutary effects of any potential
           budgetary savings. The savings are minimal and the additional cost of providing state funded
           counsel is insufficient to constitute a justification withinthe meaning of s.1. only give legal aid to a
           parent who can’t afford it when it is essential to ensure a fair trial so not to violate a s.7 right.

        R v. Morgentaler (1988)
Facts     Criminal code provisions making aboriotns against the law violated s.7 – Morgentaler’s response to
             his charge due to operation of non-accredited abortion clinic where non-therapeutic abortions were
             performed
Issue    
                     Constitutional Law – Exam Outline

Holding   
Ratio      What is the interst at stake? CC imposed restrictions on a woman’s access to abortion unless seeking
            a therapetuci abortion as determined by a committee.
           State interference with bodily integrity and serious state imposed psychological stress, at least in
            criminal alw context, constitute a breach of security of the person – due to unreasonable delay from
            committee decision (emotional/psychological stress) and physical complications/breach of integrity
            due to the delay and qualifying for an abortion but not being able to get it because there weren’t
            enough doctors (3 on the committee and then the abortion is performed by a doctor not on it)
           Taking away the decision making power of the women also cause psychological stress to her – and
            threat of criminal sanction.
           If Parl cured all the problems
           Parliament can infiringe in accordance with the principles of fundamental justice
           Not only does the removal of the decision making power threaten women in a physical sense; the
            indecision of knowing whether an abortion will be granted inflicts emotional stress
           Wilson, gives an argument to liberty interest, right to make a decision free of infliction of emoitional
            stress
           Linkning of security of the person and liberty interests.
           Because of the strange ambiguity in Dickson/Beetz problems can eliminate the psycho and physical
            problems by fixing the CC provisions, thereby eliminating the security interst and leaving the liberty
            interst as the only defence– fix the procedural defects and no constitutional claim
           One of the challenges of defining the liberty interst is carving out the boundaries of liberty –
            autonomy is fundamental – Wilson
           Where does severe psychological stress occur?
           With straight liberty interest – ease the doctrinal rule because don’t need to define psychological
            interest
           But, concern is that then becomes difficult to define liberty
           Beetz – no allowances are made in situations where the mother’s health is at risk, the delay doesn’t
            take into account physical integrity of mother if her health is at risk
           Also, the delay in obtaining the abortions caused by the mandatory procedures is an infringement of
            the purely physical aspect of the indivudla’s right to securt of the person.
           Principles of fundamental justice:
           Constraints imposed on administration of abortions meant that only 20% of the hospitals in Canada
            performed them and the provinces could impose even more restrictive requirements for approval, and
            even eliminate the exception set out in s.251(4)
           Health never defined and each committee applied a different version making it impossible for women
            to know in advance which standards would be applied to their care
           When the deicison of the therapeutic abortion committee is so laden with consequences, the absence
            of any clear legal standard to be applied by the committee in reacing its decision is a serious
            procedural flaw
           PFJ – defences cannot be illusory/deceptive/false, and here are illusory because problem of
            availability of committees, if don’t have committee then don’t have defence, no clear standard as to
            what health means under s.251, problems of availblity of abortions in general. A WOMAN
            CANNOT HAVE A MEANINGFUL DEFENCE AND IN SOME CIRCUMSTANCES CAN’T
            EVEN GET TO HOSPITAL
           Defence illusory: if you don’t have access to a committee you have no access to a defence, no
            definition of health means no defence etc
           Combined effect of all these problems with the procedure stipulated in s.251 for access to therapeutic
            abortions is a failure to comply with the POFJ
           It seeks to express our society’s collective disapprobation of certain acts and omissions. When a
                      Constitutional Law – Exam Outline

              defence is provided, especially a specifically-tailored defence to a particular charge, it is because the
              legislator has determined that the disapprobation of society is not warranted when the conditions of
              the defence are met
             If the structure is so manifestly unfair, having regasrd to the decfisions it is called upon t make, as to
              violate the POFJ that structure must be struck down
             It contains so many potential barrier to tis own operation that the defence it creates will in many
              circumstances be practically unavailable to women who could prima facie qualify for the defence, or
              at least would force such women to travel great distances at substantial expense and inconvenience in
              order to benfit from a defence that is held out to be gnereally available.
             S.1:
             Procedures impair s.7 rights famr more than is necessary in that they hold out an illusory defence to
              many women who would prima facie qualify under the exculpatory priovisions of s.251(4).
             BEETZ:
             If an act of Parliament forced a person whose life or health is in danger to choose between, on the one
              hand, the commission of a crime to obtain effective and timely mefialca treatment and on the other
              hard, inadequate treatment or not treatment at all, the right to security of the person has been violated.
             The delays of s.251(4) result in an additional danger to the pregnant woman’s health, and so the state
              has intervened and this intervention constitutes a violation of that woman’s security fo the person.
             Requirement for an independent medical opinion as to the danger of the life or health of the pregnant
              woman doesn’t offend the POFJ – for the state interest of the foetus
             Only insofar as the administrative structure creates delays which are unnecessary that the structure
              can be considered to violate the principles of fundamental justice
             WILSON:
             S.251 results in a deprivation of a s.7 right in a manner that offends s.2(a) of the Chrater, which
              guarantees everyone freeomd of conscience and religion
             Not a reasonable limit under s.1 because it took away the decision form women at all stages of her
              pregnancy and wasn’t sufficiently tailored to its objective
             Right to liberty tied to human dignity – the state will respect choices made by individuals and will
              avoid subordinating these choices to any our conception fo the good life
             Right to make personal decisions without interference fom the state
             S.7 grants a degree of personal autonomy over important decisions intimately affecting private lives
             S.251 takes away the ability to make a deciiosn that is pertintent to women only – ethical and
              personal implications
             Try to decide for the women something she has the right to decide for herself
             Denying her the right to decide something and imposing criminal sanctions
             A pure interest in the right to make decisions in a sphere of autonomy – that are personal and
              personally affect individual’s life
             Security of the person violation because means that women’s capacity to reproduce is not in her
              hands but in those of the state – she is being used as a means to an end (a body to nurture new life)
             DISSENT:
             No language to imply a right to have an abortion in charter, whereas other instances are specifically
              guaranteed (right to vote etc)
             Protection of unbotrn and no concept of abortion at will in our society
             To violate right s.7 there has to be mmore than strain or stress there has to be the additional violation
              of another right
CONCLUSIOSN
        - SCOPE OF LIBERTY AND SECURITY OF THE PERSON INTERSETS
        - VARIETIES OF PFJ
                          Constitutional Law – Exam Outline

SECTION 7 RECENT DEVELOPMENTS
        - Recap – when is psychological security of the person violated?
      Doesn’t have to rise to nervous shock, but not trivial. Know it is threatened in a case like
        Morgentaler when you are subject to delays of uncertainty, and from the GJ case, separation
        from you child. Try to figure out what ties the cases together? IN Chaouilli, subject ot
        delays that affect your health. What unites them? Overlap between security and something
        else. From the BR case, there is a liberty interest in the choices that the parents make for
        their children’s well-being. When the liberty interest is infringed that will impose stress on
        the parents. In Morgentaler, psycho and physical stress are connected. Pscychologcal stress
        comes up when something else is engaged, either liberty interest or well-being. Rodriguez,
        security in the context of life and liberty interest. On the psycho side, gets engaged when
        something else is engaged.
        - Recap – the liberty interest
      What is the extent of the interest? Right to make choices that are fundamental to a person’s
        autonomy, MOrgentaler and BR. Courts make the case that making fundamental choices
        about your children engages the liberty interest. Clear example of when it is engaged.
        Talking about stuff beyond physical liberty (incarceration). The challenge of extending it
        requires trying to make a claim about the closeness of the liberty interest to seomthing that is
        fundamental to their sense of well-being, somehitng that is related to them and the
        individual’s interest. (Godbout case, about a person’s right to choose where they live)
      Consequences of internal limits to the liberty interest? In BR, is the parent’s liberty interest in
        making choices limited by the health/life interest of the kid? Refuse the blood transfusion,
        and making a choice of your kid’s well-being, should the liberty interest be constrained? Can
        close off the analysis on the very first stage, the liberty interest isn’t even engaged. Internal
        limit gives the court the ability to decide what the “well-being” of the child is. If there are no
        internal limits, then go to PFJs, and if in accordance than go to s.1. result, a parent’s
        decisions to make decisions for their child, (that are life threatening), are constitutionally
        protected. It matters to build internal limits. With an internal limit around s.7 liberty interest,
        LaForest says there is no internal limit because it is an extension of their liberty interest to
        make the decision. If you say that the interest is internally limited then the analysis just ends.
        The state’s intervention was in accordance with the PFJ in BR. LaForest says we want to
        give choice to parents and those choices are protected. In BR the interest is violated but they
        are given all the procedural protections necessary so no violation of the PFJ and don’t go to
        s.1.
        - Recap PFJ
      When is a law unduly vague? Spanking law, not vague, and this finding that reasonableness
        not vague was decidied because the court found a way of restricting the term itself.
        Implemented in fact, unlimited, and initially caused havoc so the majority reads-in limits on
        what reasonableness is. The debate is whether reading in reduced the vagueness?
      Pfj – a law cannot be unduly vauge
      Compare to Morgentaler – the CC provisions only provided an illusory defence because the
        word health was so vague it didn’t provide a real defence. What is the difference between
        health and reasonable force?
      When will something fail the PFJ test?
      Test:
        1. Must be a legal standard
        2. Reflect a societal consensus that is important (whatever this principle is, is important,
             need to protect it)
        3. It has to be manageable, (a court has to be able to apply it from case to case)
                          Constitutional Law – Exam Outline

           Novel facts, something being claimed as a PFJ, reason it by analogy to specific examples and
            put it through the test.
           Ex: best-interests of the child test is a legal rule, because enacted by statutes and applied by
            courts, it also reflects a fundamental consensus in society because protects children BUT it
            doesn’t qualify because it doens’t provide sufficient guidance to courts, it isn’t manageable.
            (comes from Canadian Foundation) – rejects the best interests of the child test as a PFJ –
            “here idea of reasonable X is fully integrated into laws, numerous laws use it, so it is a legal
            standard frequently used and passes first stage.” “harm, too open-ended cannot apply it with
            consistency so fails last stage”

SUBSTANTIVE OBJECTIVES
        - IDENTIFY AND DELIMIT THE LIFE INTEREST
        - IDENITFY WHEN A LAW IS ARBITRARY – RODRIGUEZ and CHAOUILLI

METHODOLOGICAL OBJECTIVES
       - CONSIDER ARGUMENTS ABOUT INSTITUTIONAL COMPETENCE – the
         difference it makes to const. Analysis and interpretation
       - CONSIDER A TEXTUALIST ARGUMENT

JUSTICE ARBOUR’S TEXTUALISM
         - THE CONJUNCTION’S INJUNCTION: AND
         - WHAT’S AT STAKE IN THIS CHOICE?
         Gosselin v. Quebec (Attorney General) (2002)
Facts     - Welfare recipients under 30 given less than those over 30 – unless they participated in a educational
            and skills training programme.
          - Until 87 protected by s.33 and then eliminated in 89
          - PL brought a motion seeking compensation for the yrs she was directly affected by the legislation.
Issue     -
Holding   -
Ratio     - Arbor in DISSENT: 2 clauses, broken up by the conjuction “and” – first clause invokes positive rights.
            First clause gives you a stand alone right, the consequcence of which is that the government has
            positive obligations to provide for its citizens and so there is a violation of security of the person.
            Consequcens are that don’t want to open it up because the court will be charged with overseeing a
            whole bunch of complex issues. There are some circumstances where there are positive rights, making
            arguments about how it interacts with other parts of the constitutional text. Drafters aren’t putting in a
            positive right.
          - McLachlin – doesn’t address the issue
          - The question of whether or not there is a positive right? What are the consequences of recognizing
            this? Does it make sense for a court to give a novel reading and ignore 20 yrs of jurisprudential
            history? Is “and” a good enough argument to override all the reliance on the s.7 and the way it has
            been applied thus far?
          - What kinds of facts are going to overrule these concerns?
          - Clearest case of a justice making the text do all the work
          - Appellant argues that the s.7 right to security of the person includes the right to receive a particular
            level of social assistance from the state adequate to meet basic needs.
          - does the right to a level of social assistance sufficient to meet basic needs fall within s.7?
          - s.7 does not protect against all measures that may impinge on human life but only those that can be
            attributed to state action implicating the administration of justice
          - can it apply to prtect interests unaffected by the administration of justice?
          - nothing in the jurisdprudence thus far suggests that s.7 places a positive obligation on the state to
                          Constitutional Law – Exam Outline

               ensure that each person enjoys life, liberty or secutrity of the person rather it has been interpreted as
               restricting the state’s ability to deprive any citizen thereof.
             - The present circumstances do not warrant a novel application of s.7 so to impose a positive obligation
               to provide adequate living standards since the hardships endured were minimal since they were being
               given the opportunity to pursue training that was beneficial for them
             - DISSENT:
             - Existence of s.1 which serves as a mechanism means that positive steps must be taken to ensure
               people’s rights in the face of competing demands.
             - Articulates a test found in Dunsmore:
             - The claim must be grounded in a fundamental Charter right or freedom rather than in access to a
               particular statutory regime.
             - A proper evidentiary foundation must be provided, before creating a positive obligation under the
               Charter, by demonstrating that exclusion from the regime constitutes a substantial interference with the
               exercise and fulfillment of a protected right
             - Physical and psychological interests are at stake: malnourishment leading to theft and prostitution as
               well as depression and isolation and marginalization because lack of funds makes them unable to
               compete in society.
             - It must be determined whether the state can truly be held accountable for any inability to exercise the
               right or freedom in question ....
             - Underinclusiveness violates a right when it turns a blind eye to threats to that right and allows them to
               occur
THE LIFE INTERST
          - HOW IS IT VIOLATED?
          - WHAT LEVEL OF STATE ACTION IS REQUIRED?
          Chaouilli v. Quebec (Attorney General) (2005)
Facts      - Z was sick and burdened by the extreme wait times. PL was a doctor who was trying to obtain a licence
             to operate a private hospital and have his home-delivered medical activities recognized.
           - They were prohibited by the HOIA and the HEIA which prohibited insurance for private health care
             services that were offered by the public health care system
           - S.7 violated because deprived them of access to services that do not come with the waiting times
             inherent in the publiv system.
Issue
Holding
Ratio      - delay, wait times actually caused people to die. Contrast it to Gosselin, government provides not enough
             money and then you die.
           - Delay in getting public health insurance, causes huge wait times and kills you
           - When will similar state action expose you to the same risk? When do those risks constitute a violation to
             right to life?
           - MAJORITY says test is no real connection in fact between the objective and the means? Why? The
             more serious the infringement the stronger the connection has to be. Denying ppl the right to purchase
             private health insurance is not connected to icreasing efficiency under the public health care system.
             Examples are drawn from other countries where it was successful, there are private and public and
             continue to co-exist harmoniously. Not that convincing because don’t actually show that you have an
             equitable of efficient health care system. Canada, needs etc, differ from those around the country.
           - S.7 stage, claimant has shown that there is a violation and now need to determine whether the law is
             arbitrary. The claimant says it is arbitrary (prohibition) because works in other countries. Not sufficient
             to show arbitrariness.
           - Underlying debate about institutional competence? Who is in the better position to make this decision?
             Courts vs government (conduct studies every year)?
           - Is inconsistent synonymous with no real connection in fact?
             Constitutional Law – Exam Outline

- Arbitrariness must be straight inconsistency. With test, for sure if it is logically inconsistent
  (contradiction between means and objectives) it is arbitrary. The harder question is when you have no
  real connection in fact (achieved through comparative jurisdictions) look in jursidctions where
  euthanasia is permitted and see if the vulnerable are taken advantage of.
- What does this standard really mean? No real connection in fact? What do you have to do to show that
  there is a real connection in fact? How many examples are enough to show this? Especially with all
  problems of comparison, with other jurisdictions. Logically inconsistent is arbitrary anything else is up
  for grabs.
- The dissent is reluctant to do comparative analysis, courts are not competent to do this. If we accept this
  institutional competence argument, need to determine limits. Arguments about social competence and
  institutional competence cannot shield us from our constitutional duty regardless of how complicated.
- Life interest – when is it implicated? Challenge is that here, the causal connection seems to be open-
  ended?? what levels of risk are the governments allowed to expose you to. Wait lists expose some ppl
  to death, but is that good enough?
- Shift in arbitrariness from inconsistentcy b/w means and objective to no real connection in fact (lower
  threshold) and underlying the debate b/w M and D is the question of institutional competence, and the
  kinds of analysis they can do.
- The appellants do not contend that they have a constitutional right to private insurance. Rather, they
  contend that the waiting times violate their rights to life and security. It is the measure chosen by the
  government that is in issue, not Quebeckers’ need for a public health care system.
- Infringements of rights:
          Some patients dies as a result of long wait imes
          Quebeckers are denied a solution that would permit them to avoidn waiting lifsts, which are
              used as a toold to manage the public plance
- Purpose of the statute:
          The government’s role has expanded to become a safety net that ensures that the poorest
              people have access to basic health care services
- Proportionality:
          Rational connection: the consequences show an undeniable connection between the objective
              and the measure. The public plan is preserved because it has a quasi-monopoly
          Minimal impairment: the variety of measures implements by different provinces shows that
              prohibiting insurance contracts is by no means the only measure a state can adopt to protect
              the system’s integrity
          The regimes of the provinces where a private system is authorized demonstrate that public
              health servies are not threatened by private insurance. It can therefore be concluded that the
              prohibition is not necessary to guarantee the integrity of the public plan.
- Courts should be given deference because government inaction. Where the government puts in place a
  scheme to provide health care, that scheme must comply with the Charter. The state has effectively
  limited access to private health care except for the very righ, who can afford private health care without
  insurance.
- Deprivation of s.7 rights?
          Morgentaler – the jurisprudence of this Court hold that delays in obtaining medical treatment
              which affect patients physically and psychologically trigger the protection of s.7
          Prohibitning health insurance that would permit ordinary Canadians access to health care, in
              circumstances where the government is faiuling to deliver health care in a reasonable manner,
              thereby increasing the risk of complications and death, interferes with life and security of the
              person aas protected by s.7 of the Charter.
  - Deprivation in accordance with POFJ?
          Law can’t be arbitrary and in order not to be arbitrary the limit requires not only a theoretical
              connection b/w the limit and the legislative goal, but a real connection on the facts. The onus
                         Constitutional Law – Exam Outline

                        fo showing lack of connection in this sense rests with the claimiant. The question in every
                        case is wheterh the measure is arbitrary in the sense of bearing no real relation to the goal and
                        hence being manifestly unfair. The more serious the impingement on the person’s libery and
                        secutirt, the moreclear must be the connection.
                       According to the government’s argument, this will divert resources form the public health
                        system into private health facilities, ultimately reducing the quality of public care.
                       Opermitting people to buy private insurance would make alternative medical care more
                        accessible and reduce the burden on the public sustem.
                       The appellants have established that in the face of delays in treatment that cause psychological
                        and physical suffering, the prohibition on private insurance jeopardizes the right to life, liberty
                        and security of the person off Canadians in ana rbitrary manner and is therefore not in
                        accordance with the POFJ
                        - S.1 of the Charter:
                       Government has an interst in protecting the public health regime however given the absence
                        of evidence that the prohibition on the purchase and sale of private health insurance protects
                        the health care system, the rational connection is not made out
                       Not minimnally impaired since the resulting denial of access to timely and effective medical
                        care to those who need it is not proportionate to the beneficial effects of the prohibiotn on
                        provate insurance to the health system as a whole.
                       Benefits do not outweight the deleterious effects since prohibiting citizens from obtaining
                        private heaklth care insurance may, leave people no choice but to accept excessive delays in
                        the public health system.
ARBITRARINESS
        - WHAT IS THE CONTENT OF ARBITRARINESS?
        - WHEN IS SOMETHING ARBITRARY? INCONSISTENT WITH OBJECTIVE
           SOUGHT OR NO REAL CONNECTION IN FACT

OVERVIEW OF S.7:
        - LIFE (what kind of government action will implicate this?) what level of risk is sufficient
          to constitue a violation of the life interest?
        - LIBERTY (which choices?) Morgentaler, BR, GJ, the court described this interest and it
          is where people make choices that are fundamental. Open ended language and need to
          analogize.
        - SECURITY OF THE PERSON (when is psycholofical threatened?) physical is violated
          in Canadian Foundantion case it is clear, but when is psychological implicated? Well, in
          particular where some other interest is threated. In the Chaouilli case, the life interest and
          the security are both at stake. Morgentaler, psycho is enganged because delays threaten
          life and psycho. In GJ, relationship between parent and child, relationship is the subject
          of a liberty interest (BR) and that threatens psycho. Psycho threatened because some
          other interest is engaged.
        - Rodriguez – psycho is linked to liberty and physical because watches herself deteriorate
          and can’t do anything about it.

SPECIFIC EXAMPLES OF PFJS: S.7
          - Vagueness – Canadian Foundation for Children
          - Arbitrariness – Rodriguez and Chaouilli
          - Illusory defences - Morgentaler
          - Absolute liability – BC Motor Vehicles
          - Counsel in administrative adjudications - GJ
                           Constitutional Law – Exam Outline

            -   Broad test from Malmo-Levine and applied in Canadian Foundation – legal, consensus,
                manageable

CONCLUSIONS
        - Policy arguments – come front and center, think about Rodriguez M adn D and the role
          policy plays
        - Arguments about insistutional competence – Chaouilli
        - Want to extend by analogy to all cases when confronted with novel fact patters.


SECTION 2(B) – LOW VALUE SPEECH
CHAOUILLI RECAP
        - Insitutaiotnla competence –can the courts make the social policy calls?
        - How do you show “no rational connection in fact”? majority’s test for arbitrariness.
            Used a comparative approach? But, how many comparisons do you need to show that
            there is no real connection in fact and instead arbitrariness which is violation of PFJ.
            Don’t know from this case.
        - What kinds of government action violate the life interest? The existence of waiting lists
            that result in death. What kinds of risk can government impose on indivudals? Here,
            unacceptable risk of death...

STEPS IN SECTION 7 ANALYSISI:
   1. Interest
   2. If interest violate, PFJ
   3. If PFJ violated, section 1 (if fails under arbitrariness and then doesn’t pass rational connection, if
      it fails under other PFJ then go to minimal impairment or proportionality)

ISSUES AROUND INTEREST
         - Life –what kind of government action is implicated?
         - Liberty – which choices are violated?
         - Security-when is psychological security threatened?

PFJS
            -   Vagueness
            -   Arbitrariness
            -   Illusory defence – health too open ended, availability of committees (not there and
                needed them to benefit from the defence)
            -   Absolute liability
            -   Counsel in administrative adjudication
            -   If you have one of these, you have a case to work off.

WHAT COUNTS AS A PFJ – for PFJ that you have not seen
  1. Legal standard
  2. Reflecting broad societal consensus
  3. Manageable
         - 2 candidates – harm principle and being able to make decisions for children – look at
             analysis and make analgoies to other cases

SECTION 7 AND SECTION 1
         - If arbitrariness, then rational connection probably determinative
                          Constitutional Law – Exam Outline

            -   Court routinely goes to s.1 btu unsue if will ever pass s.1 if fails PFJ – go to minimal
                impairment and proportionality
            -   Legitimate governmental objectives – illegitimate when they are per se (obviously)
                unconstitutional (Vriend, government offers no objective, only one could find is an intent
                to discriminate, per se unconstitutional – freedom of religion, “Big M” Violation of
                freedom of religion, Lords Day Act)

TODAY
            -   IDENTIFY the steps in section 2(b) analyisi
            -   CONSIDER the relationship between 2(b)’s underlying purposes and permissible
                restrictions

            -   Using policy purposes
                - analgozing from fact
                - dealing with multiple purposes

THE PURPOSES OF 2(B)
        - INSTRUMENTAL: democracy promotion – free flow of ideas regarding democratic
           deliberation, truth seeking – want competing viewpoints to flush out the truth, don’t
           know what’s true so test it out through debate. Protect it because serves the purposes of
           allowing us to arrive at the truth
        - INTRINSIC: dignity of the listener and speaker – about self-realization, dignity is
           affirmed as a listener and a speaker because if you speak you can express an essential
           idea of yourself. And as a listener, should be able to hear all kinds of arguments, don’t
           need someone to determine what is good and bad for us to hear.

   - R V. KEEGSTRA:
   - scope and content of s.2(b):
        the freedom is instrumental in promotion the free flow of ideas essential to political
          democracy and the functioning of democratic institutions – political process rationale, but this
          justifies only a relatively narrow sector of free expression – more narrow interpretation than
          that alluded to in the actual section
        freedom is seen as a means of promoting a marketplace of ideas in which competing ideas vie
          for supremacy to the end of attaining truth
        but, freedom provides no guarantee that the truth will always prevail, it still can be argued
          that it assists in promiting the truth in ways which would be impossible without the freedom
        where the freedom is restricted notice a coerced propagation of ideas, and industry, economic
          development and scientific and artistic creativity may stagnate in such societies
        freedom can be justified in part on the basis that it promotes the marketplace of ideas and
          hence a more relevant, vibrant and progressive society
        an emphasis on the intrinsic value of freedom of expression provides a useful supplement to
          the more utilitarian rationales, justifying forms of artistic expression which some might
          otherwise be tempted to exclude
        attempts to restrict expression have accounted for a disproportionate share of governmental
          blunders (Galileo) because they have an interst in stilling criticism of themselves, or even
          enhancing their own populatiry by silencing unpopular expression
        not always illegitimate for them to curtail expression, but must looked at with suspicion
        broad wording of section suggests that there is no need to adopt any one definitive
          justification for freedom of expression
                          Constitutional Law – Exam Outline

SECTION 2(B)
         - what does and does not count as expression, for purposes of s.2(b)?
       Anything that conveys meaning counst and any attempts to restrict something that violates
         s.2(b)
       Violence is the sole exception – why? – what is the consequence of imposing an internal
         limit, this is an internal limit, and have no s.2(b) right in those cicrumstnaces.
       If you have state regulation that attempts to convey meaning that is not violent then there is a
         violation

SECTION 1
         -      What are the characteristics of low value speech?
         -      What is the consequcnes of characterizeing speech as low value?
         -      Do the cahracterizations make sense?

            R v. Keegstra (1990)
Facts                  - DF charged under s.319(2) of CC for wilfully rpmoting hatered against an identifiable
                            group because he was teaching his students that Jews were evil etc, promoting anti-
                            semitism – expected his students to reproduce his opinions or else their marks would
                            suffer
                       - Said that relevant CC provision violated his freedom of expression
Issue                  - Does it infringe his s.2(b) right?
Holding                -
Ratio                  - Does not further the values of freedom of expression – how? What are the characteristics?
                    Allowing thes ideas to propagate is wrong, because hate speech is false. So it doesn’t futher
                       the marketplace of ideas. – hate speech is manifestly false
                    Poltical process – hate speech makes vulnerable people feel like they are even more excluded
                       from the poltical process. You spread hate, they feel excluded, and that undermines the
                       political process. – marginalizes people
                    There is something about the cost to the listener’s dignity, if you have hateful things said
                       about you then your dignitiy if infringed, directed to you as a member of a group. Form
                       identities through membership within groups and are undermining that. Listener’s autonomy
                       – respect ppl by letting them here everything and then they sort through what they want and
                       don’t want to hear. There are some things which so blatantly undermine the values of the
                       constitution they shouldn’t be afforded protection by it.
                    In the case of a listnerer – the person’s liberty interest is affected
                    The importance of the listenerer’s ability to identify with their group – undermine autonomy
                       by allowing hate speech to go forward
                    Let people express themselves to express their personhood – they definitely are, but there is a
                       balancing interest in society. His dignity interest in expressing hatred, isn’t that important of
                       an interest because no attainment of truth and no participation in political process. It is a
                       trivial liberty interest. Hate speech that doesn’t promote any of the purposes of freedom of
                       expression.
                    High-value – advances the purposes of free speech
                       - What is the consequcne of characterizing speech as low value?
                       - Irwin Toy 2 step test to see if s.319(2) infringes s.2(b)
                1. Communications which wilfully promote haterd against an idenitifiable group without doubt
                   convey meaning, and are intended to do so and the meaning conveyed is irrelevant because it is
                   enough that those who wilfully promite hatred convey or attempt to convey a meaning
                2. CC provision is aimed directly at words that have as their content and objective the promotion of
                   racial or religious hatred so this provison overtly seeks to prevent communication of expression
           Constitutional Law – Exam Outline

          - S.319(2) infringes freedom of expression
          - Section1 analysis
         A rigid and formalistic approach to the application of s.1 must be avoided. The ability to use
          s.1 as a guage which is sensitive to the values and circumstances particular to an appeal has
          been identified as vital
         Objective of s.319(2): finding that the dissemination of hate propaganda has risen so need to
          address it. there are 2 tyes of njury caused by it: the harm done to members of the target
          group which has a negative impact on an individual’s sense of self-worit and acceptance; and,
          it’s influence upon society as a while because belief that Candains will believe anything.
          Also, international human rights obligations taken on by Canada reflect the values and
          principles of a free and democratic society, and this those values and principles that underlie
          the Charter itself. Furthermore, ss.15 and 27 of the Chrter represent a stronf commitment to
          the values of equality and multiculturalism, and underline the great impotance of Parliament’s
          objective in prhohibiting hate propaganda. To protect identifiable grouos from harm
          Parliamnet has decided to suppress wilful promotion of hatred. Pressing and substantial –
          harms done to individual and harms done to society at large. Active dissemination of hate
          propaganda = serious discord, and social unrest between differing groups within society.
          Effects may be minimal on members of the majority, but even if it is outwardly rejected it will
          persist in people’s minds as holding some truth. Legitimate objectives always pass.
         Proportionality:
         There are 3 things at the core of freedom of expression:
          a) Need to ensure that truth and the common good are attained, whether in sceintifc and
               artistic endeavours or in the process of determining the best course to take in our political
               affairs. There is very little chance that statements intended to promote hatred against an
               identifiable group are ture or that they will lead to a better world.
          b) The vital role of freedom of expression as a means of ensuring indvidiauls the ability to
               gain self-fulfilment by developing and articulating thoughs and idead as they fit.
          c) The connection between freedom of expression and the political process which is largely
               derived from the Canadian commitment to democracy. Ensures that all participate and
               that best policies are chosen. Expression can work to undermine our commitment to
               democracy where mployed to propagate ideas anathemic to democratic values (hate
               propaganda_
i.        Rational connection: s. 319(2) serves to illustrate to the public the severe reprobation with
          which society holds messages of hate directed towards racial and religious groups. The
          existence of a particular criminal law, and the rpcess of holdig a trial when that law is used, is
          thus itself a form of expression, and the message sent out is that hate propaganda is harmful to
          target group members and threatening to a harmonious society. Hate propaganda laws are one
          part of a free and democratic society’s bid to prevent the spread of racism, and their rational
          connection to this objective must be seen in such a context. not rationally connected because
          it exacerbates them – not true because we are expressing severe disapproval of this. Don’t
          have to DECISIVELY SHOW just show that there is a rational connection. Criminalization
          makes people famous and disseminates hate speech, use human rights commissions etc
          (dissent) vs expressing disapprobation as way of undermining the speech (majority).
          Government has more leeway because characterization as low value speech lets government
          not endorse it since it is not that important – deference to government.
ii.       Minimal impairment: in order to determine whether there is minimal impairment, the nature
          and impact of specific features of the provision must be examined. Note that statmentts made
          in private conversation are excluded s not to intrude on the privacy of the individuals and
          there is an element of mens rea because the accused had to subjectively desire the promotion
          or foresee the consequences that would result. The risk of hatred caused by hate propaganda
                        Constitutional Law – Exam Outline

                       is very real, grievous harm is to be avoided, so proof of actual hatred is not required. Hatred is
                       an extreme emotion that belies reaon and if exercised against members of an idenitifiable
                       group it will cause them to be despised, scorned, rejected etc. Based on group affiliation. S.
                       319(2) possesses definitinal limits which act as safeguards to ensure that it will capture only
                       expressive activity which is openly hostile to Parl’s objectice and will thus attack only the
                       hamr at which the prohibition is targeted. Only the most intentionally extreme forms of
                       expression will find a place within s.319(2). Do the characterizations make sense? The
                       government is under no obligation to choose the least impairing means, jsut one that is
                       relatively minimally impairing. The government gets deference because not talking about
                       studff that is valuable, under core purposes of s. 2(b). Constrained by understanding intensity,
                       mens rea requirement etc. The consequence is that the government gets the benefit of the
                       doubt.
              iii.     Alternative modes of furthering Parl’s objective: use non-criminal sanctions such as
                       education programmes extolling the merits of tolerance and cooperation between raicl and
                       religious groups. Even if there is more than meansure the government can choose a more
                       restrictive measure, if that measure is not redundant and if it furthers the objective in a way
                       that alternative modes cannot and is proportionate to a valid s. 1 aim.
              1. Deleterious vs. salutary effects: the restriction of expression largely removed from the heart of
                   free expression values, are not of such a deleterious nature as to outweigh any advantage gleaned
                   frm the limitation of s.2(b)

          R v. Butler (1992)
Facts        - Accused charged with possession of obscene material for the purpose of sale because had a shop with
               videos, magazines and hard core porn paraphernalia
             - At trial, material was obscene for the purposes of s.163 of the CC, but saved under s.2(b) and s.1 with
               the exceptions of sexual material depicting violence, cruelty, or dehumanization
             - At appeal, not a form of expression because freedom of expression was to protect intellectual rather
               than sensual arousal. Obsence materials had as their purpose titillation which was purely physical
               and devoid of meaning.
             - Issue of overbreadth
Issue        - Does s.163(8) violate s.2(b)?
Holding      - Yes, but it is saved under s.1
Ratio        - Concened about the possible harms of porno...
             - in order for something to qualify as obscence, the exploitation of sex must not only be its dominant
               characteristic, but such exploitation must be undue.
             - Tests:
               1. Community standard test – what Canadians would not abide other Canadians seeing because it
                   would be beyond the contemporary Canadian standard of tolerance to allow them to see it. not a
                   matter of taste, but of tolerance.
               2. Degrading or dehumniazing test – if the material has either of these characteristics it fails the
                   community standards test. Will be degrading or dehumanizing if individuals are placed in
                   positions of subordination, servile submission or humiliation – which run against the principles
                   of equality and dignity. Consent cannot save materials that otherwise contain degrading or
                   dehumanizing scenes. Hardcore porn, offends against morals and perceived by public opinion as
                   harmful to society (children and women)
               3. ARTISTIC DEFENCE – internal necessities test – even material which by itself offends
                   community standards will not be considered undue if it is required for the seriosut reatment of a
                   theme. Must assess whether the exploitation of sex has a justifiable role in advancing the plot of
                   the theme, and in considering the work as a whole, it does not merely represent “dirt for dirt’s
                   sake” but has a legitimate role when measured by the internal necessities test. Viewed sex in the
            Constitutional Law – Exam Outline

         context to determine if it pertains to a theme that is dominant and will be tolerated by the
         community
-   Pornography is divided into 3 categories: 3 kinds of harm
    1. Explicit sex with violence – always fail community standards
    2. Explicit sex without violence but which subjects people to treatment that is degrading or
         dehumanizing – may fail if the risk is substantial (i.e. porno)
    3. Explicit sex without violence that is neither degrading nor dehumanizing – won’t fail unless
         involves children
-   Arbiter is the community – courts determine what the community would tolerate others being
    exposed to on the basis of the degree of harm that my flow from such exposure. Harm predisposes
    persons to act in an antisocial manner (incompatible with proper functioning).
-   Does it violate s.2(b)?
-   It does because even though physical in nature, that does not mean that the materials do not convey
    or attempt to convey meaning such that they are without excessive content. Does intend to convey
    meaning, even if it is basic.
-   Meaning sought to be expressed need not be redeeming in the eyes of the court to merit the
    protection of s.2(b) whose purpose is to ensure that thoughts and feelings may be conveyed freely in
    non-violent ways without fear of censure.
-   Is s.163 justified under s.1 of the Charter?
-   Objective – the avoidance of harm resulting from antisocial attitudinal changes that exposure to
    obscene material causes and the public interest in maintaining a decent society.
-   safeguarding the morals of individuals into whose hands such works could fall
-   prevention of a moral harm of a kind which leads to the detrimental effect on society
-   Parliament sought to address the harms which are linked to certain types of obscene materials that
    had a detrimental impact on individuals exposed to them and society as a whole
-   Community standards test, addresses obscenity and ensures they are not violates, is flexible and takes
    into account the societal changes which are taking place
-   Harm caused by proliferation of materials which seriously offend the values fundamental to our
    socity is a substantial concern which justifies restricting the otherwise full exercise fo the freedom of
    expression
-   Objective is valid insofar as it relates to the harm to society associated with obscene materials
-   Argument about wheterh there is political speech in porno – no, because degrading treatment.
    Objective regarding protecting against harms is legitimate. No political virtues of pornography.
-   Obscenity is objectionable because it is harmful – why? – promotion of harm towards women
    and children, by watching it will be pre-disposed to engage in it (a causal link); harms to society
    at large, significant portion of the population is HUMILIATED by this. Either creates the
    harms or exacerbates the harms already there.
-   why can’t porn be a form of political speech? Not violence itself, just depictions, alternative
    viewpoints of sexuality...too much exploitation – dealing with stuff that is actually political and not
    degrading but maybe even if that is the intention (political message) the likely result is going to be
    that you are creating those harms, because low value speech and deference.
-   Proportionality:
             Rational connection: relates to the causal relationship between obscentiuy and the risk of
                 harm to society – exposure to images bears a causal relationship to changes in attitudes
                 and beliefs (promotes antisocial acts)
             when there is no proven caual link then Parliament was entitield to have a reasoned
                 apprehension of hamr resulting from the desentization of individuals exposed to material
                 which deptict violence, cruelty, and dehumanization in sexual relations
             minimal impairment: it is minimally impairing because
                 1. does not proscribe sexually explicit erotica without violence that is not degrading
                     or dehumanizing (need a reasonable baissi for concluding that harm will result)
                         Constitutional Law – Exam Outline

                            2. materials which have scientific, artistic or literary merit are not captured by the
                                 provision (generous in application of artistic defence)
                            3. legitimate for the court to take into account Parliament’s past abortive attempts
                                 to replace the definition with one that is more explicit, abstract definition of
                                 obscenity which is contextually sensitive and responsive to progress in the
                                 knowledge and understanding of the phenomenon to which the legislation is
                                 directed
                            4. s.163 deos not extend its reach to the private use or viewing of obscene
                                 materials...Accordingly, it is only the public distribution and exhibition of
                                 obscene materials which is in issue. Education and legislation are not
                                 alternatives but complements in addressing such problems
                        deleterious vs salutary: the infringement on freedom of expression is confined to a
                            measure designed to prohibit the distribution of sexually explicit materials accompanied
                            by violence and those without violence that are degrading and dehumanizing (lies far
                            from the core of the guarantee of freedom of expression. The objective of the leiglsaiotn
                            is of fundamental importance in a free and democratic society. It is avoiding harm, which
                            Parliament has reasonably concluded will be caused directly or indirectly , to individuals,
                            groups such as women and children, and consequently to society as a whole, by the
                            distribution of these materials. Seeks to enhance repsnecit for all members of society, and
                            non-violence and equality in their relations with eachother.
                       - The characterization as low value speech because undermines the autonomy interest of
                            women
           -   Hypos – what if parliament removed the defence of truth in keegstra (s.319 – if your
               statements are true no prosecution)
           -   What is parliament removed the defence of aritistic merit in Butler? (only arises once you
               have established that you are talking about sex that is degrading, dehumanizing or violent
               – undue exploitation)

CONCLUSION
        - Structure of 2b analysis
        - Relationship b/w purposes and structure
        - Policy, facts and multiple purposes

SECTION 2(B) – COMMERCIAL SPEECH
        - I ssue –uncertainty in the law
        - R ule – cite authority
        - A pplication – this requires an arguments, analogize
        - C onclusion – take a position
        - Summaries – make sure they are problem-oriented, flag cases next to analysis
        - Review
        - Purposes of freedom of expression – instrumental purposes, it is instrumental to
            promoting democracy, aids in attainment of truth. Intrinsic purposes, respects the dignity
            of both speakers and listeners
        - How does low value speck depart from these purposes? Keegstra, contradicts the
            purposes, does the rationale in Keegstra make sense? 1) Hate speech is manifestly false,
            doens’t contribute to truth 2) has the effect of excluding people from democratic process,
            undermines democratic function 3) Undermines the dignigty of individual as long as
            they have their identity defined by cultural and religious groups, undermines their
            autonomoy interests. True that prohibition on hate speech restricts their liberty interest
            but relatively minor infringement.
                      Constitutional Law – Exam Outline

        -   Majority says – low value speech at the outset lies far form the core purposes of freedom
            of expression
        -   If sppech is low value, higher deference to government action
        -   Rational connection
        -   Minimall impairment
        -   By giving higher degree of deference, it is pretty easy to satisfy the Oakes test.
        -   Where you have low value speech you don’t need least minimally impairing, just within a
            range of minimally impairing
        -   In certain circumstances, government action is given high deference

HYPOS
        -    What if parliament removed the defence of truth in Keegstra?
        -    Low value vs high value comes in at s.1
        -    What if it is contextually relevant? If remove the defence of truth then can have valid
             statements that may seem hurtful but contextually are important, further the attainment of
             truth. Not allowing him to do this, would that undermine his dignity? Speaker –yes,
             listener, yes if contextually relevant than there for a reason and wants to hear it.
       Can be truthful but is still hurtful, which undermines individual’s dignity. What about the
        democratic process?
       Is it done within the context of hate speech?
       Saying true things, but worried about really over-sensitive people.
       Intention
       Altering the levels of deference
       Language of CC – if you can establish that it is true, objective
        - What if parliament removed the defence of artisitic merit in Butler?
        Uses artistic merit then it is minimally impairing, leads the court to the conclusion that the
        legislation is minimally impairing.
       Overbroad, not minimally impairing
       But, clearer language in Butler is all about the reactions of the viewer and influence exerted
        - TODAY
        - Policy/purposes of constitutional protections
        - Analogizing and distinguishing
        - Dealing with multiple purposes
        - Distinguish between purpose and effects based regulation of speech
        - Identify the rule for effects-based regulation
        - Identify conditions for deference
       Purposes v effects –
       Distinction: if the purpose is to regulate what the speech actually says/means then once
        we’ve established that there is an intent to convey meaning then go to s.1.
       Ex: city wants clean parks so restricts people from distributing flyers bc ppl throw them away
        and increases litter. But are for conveying meaning. So, the effect is to limit their ability to
        spread the message, their speech is restricted, but the purpose is not directed at their speech.
        This has an effect on expression but not about the expression.
       Keegstra and Butler – all about expression, directly regulate content.
       What is the rule for effects-based speech regulation? Effect of regulating speech, but not
        directed in its purpose. So, has to show that the expression he wants to put forward advances
        the purposes of s.2(b). Engaged in activity that advances the purposes, claimant bears the
        burden under s.2(b) and then over to s.1.
       Clear intent is to regulate the purpose of the legislation
                          Constitutional Law – Exam Outline

           Does the distinction and rule make sense? If it is effects-based, then the claimant has a
            higher burden. Imagine the burden the government would have bear every time someone’s
            freedom of expression was incidentally affected (noise regulations for example). This rule
            provides a road block, it limits the scope of constitutional protection because it heightens the
            claimants burden. In general, it does make sense. Maybe regulation that claims to affect the
            effects of speech but really targeted at purposes, analysis is tricky. Ex: only targeting a
            specific group of people from distributing pamphlets, then there is a question about whether it
            is really about purposes or really about effects.
           So many things that the government does affects speech – noise regulation
           Understand the distinction
           Understand the difference between the 2 rules purpose vs effects

REASONS FOR DEFERENCE IN SECTION ONE
        - Competing claims of different groups – distinction between the government weighing the
           interests of different groups as opposed to acting against an individual. Criminal context,
           and here the government gets very little deference.
        - Scientific evidence/complex policy – not in a good position to evaluate this evidence, or
           to make complex and effective policy, this is govenrment’s job and so government will
           get deference when evaluating scientific evidecen or making complex policy decisions.
           Evident in both cases.
        - Total vs partial bans - court syas in RJR that where there is a total ban on speech we are
           gong to be less deferential because it is unlikely that the stuff is going to be minimally
           impairing. Partial bans get more deference
        - All that is required is a reasonable basis for the govenrment’s analysis and objectives are
           always going to be constitution unless per se unconstitutional (ex: Vriend where intention
           of the exclusion was discriminatory and Big M with the Lord’s Day Act)

            RJR MacDonald Inc. v. Canada (Attorney General) (1995)
Facts               - The Tobacco Products Control Act 1988 prohibited the advertising and promotion of
                       tobacco offered for sale in Canada and required manufacturers to add to packages an
                       unattributed warning about the dangers of smoking. 2 companies challenged on
                       federalism grounds and on the basis that it infringed their right to s.2(b) – freedom of
                       expression.
Issue               - Does s.3 of the Act infringe the companies’ freedom of expression?
Holding             - Yes
Ratio               - Is a total ban – but how else do you achieve the objective
                    - In some circumstances it is ok to have a total ban as long as it is tailored to that specific
                       group
                    - Can have informational vs brand advertising
                    - Wht is motivating are the distinctions
                    - Stands for the proposition that commercial speech is not low value speech – the profit
                       motive is irrelevant – in part because it is hard to determine when something is motivated
                       by profit
                    - Profit doesn’t matter – doesn’t make it low value speech
                    - LaForest DISSENT:
                    - Banning smoking vs banning advertising
                    - S.1 – strikes a delicate balance between individual rights and community needs
                    - Test must be applied flexibly, haveing regard to the factual and social context of each case
                    - Evidentiary requirements will vary depending upon the nature of the legislation and the
                       nature of the right infringed
        Constitutional Law – Exam Outline

    -    The significant gap between our understanding of the halth effects of tobacco
         consumption nd the root causes of tobacco consumption means that a strict application of
         the proportionality analysis in cases of this nature would place an impossible onus on
         Parliament by requiring them to adduce definitive social scientific evidence – which could
         impair the operation of government in socio-econmic sphere
    - The socioeconomic problem warrants judcicial deference to government
    - Lower standard of justification required where legislation aimed at mediating between
         different groups versus where the state acts as the singular antagonist of the individual
    - A greater degree of deference to social legislation than to legislation in the criminal justice
         context, due to insititutional difference between legislauter and judciairy
    - Prohibits advertising (not sale or manufacture) as a way of achieveing compromise among
         competing interests of smokers, non-smokers and manufacturers while protecting
         vulnerable groups in scoeity since ads influence and create demand.
    - Depending on nature expression will be entitled to varying degrees of protection
    - Core values served by freedom are search for politica, artistic and scientific truths, the
         protection of individual autonomy and self-development, and the promotion of public
         participation in the democratic process.
    - When the form of expression falls far from the core restrictions are less difficult to justify
         – harm engendered by tobacco and profit motive = far from the core so low degree of
         protection
    - Rational connection
   Sufficient for government to demonstrate a reasonable basis for rational connection
   Can be based on a common sense observation (spend lots on ads because know that it
    increases consumption, serves as inducements for smokers not to quit)
   Also relies on social science evidence – internal tobacco marktering documents (attract youth,
    expand market), epxert reports and international markets (all instituting similar legislation)
    - Minimal impairment
   Limiting the right to advertsei a legal product that is socially harmful and when used as
    directed has the potential to kill – could have just criminalized it.
   Over the couse of a 20-yr period conducted tests and experiments, instituted lesser intrusive
    legislation but since ads still stimulated consumoption determined that full prhiobition
    necessary – more than reasonable gorujnds to come to this conclusion
   Court cannot determine that partial more effective than full, that is line-drawing that should be
    done by parliament
    - Deleterious vs salutary
   A restriction in the rights of tobacco companies to ad for profit on products that are harmful
    do not outweight the objective of reducing inducements to consume it.
    - Unattributed health message requirement
   If the effect is to put a particular message into the mouth of the PL then the section runs afoul
    of the Charter
   Just because they have to put them doens’t mean they endorse them – analogize to mandatory
    health warnings which label products as dangerous and hazardous
   Objective is that it increases the likelihood of every literate customer knowing what they are
    engaging in and the potential effects it may have – these messages have no poticial, artistic or
    social componenet
   Lower standard of constitutional scrutiny
    - McLachlin MAJORITY:
    - Partial – ban on some aspects, but still contain the logo
    - Objective is to not induce ppl to take up smoking – does the total ban achieve the
         objective in a minimally impairing way? No, because brand ads instead of lifestyle ads.
     Constitutional Law – Exam Outline

         Some kinds of ads that are caguth by the ban are unnecessary.
    - all forms of advertising are banned (total)
    - objective of legislation is to stop promoting or inducing people to smoke and not really
         about health so total ban is not minimally impairing.
    - Brand, lifestyle, informational
    - If you want to stop people from taking up smoking can do it more narrowly
    - Disintion to be made between brand and lifestyle ads, some about advertising the brand
         other ads depict a lifestyle improvement/chage associated with smoking “glamorous”
    - Differs in opinion on unattributed health warnings
    - Violates their right to freedom which necessary entails the right to say nothing or the right
         not to say certain things
    - Health warnings and the ban against displaying any other info to allow them to express
         their own views violates the right
    - Cannot deem something a unique socioeconomic phenomenon and then grant complete
         deference to Parliament allowing them to evade justify limitations
    - With deference, it must not be carred to the point of relieveing the government of the
         burden which the Charter placed upon it of demonstrating that the limits it has imposed on
         guaranteed rights are reasonable and justifiable
    - Standard – balance of probabilities achieved through the application of common sense
    - Objective
   Prevent persuasion to buy and consume the products
   Warning discourage people from using
    - Rational connection
   No insisting on direct proof of a relationship between the infringing measure and the
    legislative objective
    - Minial impairment
   Tailor law to not impair rights more than necessary
   Could advertise the features of product
   Drawing ppl in vs keeping ppl in
   Full prohibition only justified if the government can show it is the only way to achieve the
    objective sought and must show that partial ban is ineffective
   Commercial speech, less important but shouldn’t be dismissed
   Tobacco consumption hasn’t been baneed yet those who choose to engage in it are deprived of
    important info which would allow them to make an informed decision as to the brand they
    smoke
   Onus on government
   Motivation of profit is irrelevant because everyone is motivated by rpofti and yet there are not
    full prohibitions on ads
   Idea that compelled speech is a violation of freedom of expression as much as a limit on
    freedom (here unattributed is compelling you to express something you don’t want to)
   Violation of right to stay silent
   In s.1 – lack of attribution, why is it a problem? There is no evidence that this stuff is
    necessary, in the absence of any evidence then there is no reason for it.
   What is the harm of lack of attribution? Identification of you with a message that you don’t
    want to make
    - Iacobucci
    - Government had evidence regarding total vs partial ban and then not show it to us
   Must consider whether alternatives which were less rights imparirinfg were considerd
   Did the government differentiate between harmful and benign ads when reaching decision?
                       Constitutional Law – Exam Outline

                     Health warning should be attributed and not unattributed, should place the actor who wants
                      them on the package

          Irwin Toy Ltd. v. Quebec (AG) (1989)
Facts                - Quebec’s Consumer Protection Act prohibited ads directed at those under 13
                     - Allowed for exceptions – ex: ads in mags
                     - S. 7 does not protect corporate/artifical entities because incapable of enjoying life,
                         liberty and security
Issue                - Infringement on s.2(b)?
Holding              -
Ratio                - Something that is narrowly targeted to a specific group is not a total
                     - Test
                         1. Was the PL’s activity within the sphere of conduct protected by freedom of
                              expression?
                      Content – activity is expressive if it attempts to convey meaning important to individual
                         regardless of how it is perceived by others/mainstream – appeal to and protection of
                         diversity and plurality of opinions
                      Form – is the manner in which the content is expressed, written, spoken, arts, gestures or
                         acts – violence is not an appropriate form
                      Expressive content and physical content is protected provided it attempts to convey a
                         meaning – prima facie falls within the scope
                      Here, ads aim to convey a meaning and so are protected
                         2. Was the purpose or effect of the government action to restrict freedom of
                              expression?
                         a) Purpose
                      Assessed from the standpoint of the guarantee in question –
                      Purpose to restrict the content by singling out particular meaning that are not to be
                         conveyed – limits the right
                      Purpose to restrict a form in order to control access by others to the meaning being
                         conveyed or to control the ability of the conveyor to do so – limts the right
                      Purpose to contol only the physical consequences of certain activity, regardless of
                         meaning – doens’t limt the right
                      Ex: handing out pamphlets vs littering
                      Does the mischief consist in the meaning of the activity or the purported influence that
                         meaning has on the behaviour of others or does it consist rather only in the direct physical
                         result of the activity?
                         b) Effects
                      Was the effect to restrict the PL’s free expression?
                      Onus on PL to establish it was
                      PL must state claim with reference to the principles and values underlying the freedom
                      A PL must prove that her activity promotes atleast one of the principle (judicial
                         determination on a case-by-case analysis)
                      Must relate to: the pursuit of truth, participation in the community or individual self-
                         fulfillment and human flourishing
                         3. Whether the limit on freedom of expression is justified under s.1?
                      Is it so vague as not to constitute a limit prescribed by law?
                      Does the evidence establish that children cannot make choices and distinctions
                         representing products adverstised? (can determine it by studies)
                         a) Pressing and substantial objective – protection of a group which is particularly
                              vulnerable to the techiniques of seduction and manipulation abundant in adverstising.
                          Constitutional Law – Exam Outline

                              Gerneal concern in Western societies with the impact of media, and particularly but
                              not solely televised advertising, on the development and perceptions of young
                              children. Particular susceptibily to media manipulation, their inability to differentiate
                              between reality and fiction, etc. US FTC report used to illustrate that television ad
                              directed at children are per so manipulative. Aim is to convince those who always
                              believe. Government is required to exercise reasonable judgement in specifying the
                              vulnerable group. Must recall that s.1 requires a reasonable limit with the result that
                              courts are not called upon to substitie judicial opinions for legislative ones as to the
                              place at which to draw the line. If the legislature has made a reasonable assessemtn as
                              to where the line is most properly drawn, especially if scientific evidence has been
                              weighed, then it is not up to the court to second guess.
                          b) Means proportional to ends – state vs individual, has to come to least impairing means
                              but balancing of interests og groups then choose from a range of minimally impairing.
                              Balancing the claims of different groups and when this is done relatively high level of
                              deference. forced to strike a balalnce without the benefit of absolute certainty
                              concerning how that balance in best struck. Vulnerable groups will claim the need for
                              protection by the government whereas other groups and individuals will assert that the
                              government should not intrude. The court is called upon to assess competing social
                              sience evidence respecting the appropriate means for addressing the problem of
                              children’s advertising. The question is whether the government has a reasonable
                              basis, on the evidence tendered, for concluding that the ban on all advertising directed
                              at children impaired freedom of expression as little as possible given the
                              government’s pressing and substantial objective. The FTC report indiciate dthat
                              children are not equipped to identify the persuasive intent of ads, content regulation
                              cannot address this problem. The sections here contemplate a larger group than that
                              in the FTC report and always allow ads aimed at adults which avoids the difficulties
                              identified in the Report both with a ban based on audience composition and with a ban
                              based on the definition of advertising dreicted to children. Ss. 248 and 249 place the
                              framework for a practicable ban on advertising directed at children. Quebec’s
                              regulation is not inconsistent with measures taken in other jurisdictions. Although
                              could have taken lesser instrusive route there is evidence establishing the necessity of
                              a ban to meet the objectives the government has reasonably set. There is a sound
                              evidentiary basis for the government’s conclusions.
                        - Partial ban – because cannot direct the ads to ppl under the age of 13, restrictions to
                          content and time etc. Minimally impairing because it has all these additional limits on it.
                          Ban seems total, but it has qualifiers. Total will always receive less deference. Hard
                          determination to make. Say that it is somewhat partial, but it’s not like kids are watching
                          tv when they are on.
                        - Around the formation of an objective the court gets deference because it is a question
                          regarding balancing groups and scientific evidence and complex policy.
                        - But, maybe total because the objective of the legislation is to protect children and shield
                          them from influence.
                        - Total vs. partial?
                         Deleterious effects? They do not outweigh the salutary effects, they are directed at
                          vulnerable children but advertisers can still direct all the ads to the parents/adults.
                        - DISSENT: no case has been made that children are at risk. Restriction fails on
                          proportionality because total ban based on an arbitrary age.
Section 2 (b) analysis:
    1. Expression or not
    2. Regulation of effects or purposes
    3. If effects, claimant required to argue
                          Constitutional Law – Exam Outline

    4. Section 1: reasons for deference (competing interest, sci evi/complex ban & total vs partial ban).

SECTION 2(B) – ACCESS TO PUBLIC PROPERTY
        - Recap
        - Steps in 2(b) analysis so:
            1. Speech or not – does it have expressive content? And is it must be non-violent?
            2. Regulating in effect or in purpose - what kind of regulation? Regulating in a content
                neutral way or not? Regulating in effect, ex: littering that regulates paper pamphlets
                in the park, reduce the amount of litter in city parks so ban on distributing purpose
                (has nothing to do with content, the effect is to regulate to content but the purpose is
                not) versus targeting hate speech/pornography and there regulating content (purpose)
            3. If regulating in effect, because content-neutral, claimant has to argue that the
                expression is consistent with at least one of the purposes of freedom of expression.
            4. Then go to s.1
            5. If the purpose of government action is to regulate content of speech, then go
                directly to s.1

SECTION 1 AND DEFERENCE (apply it to minimal impairment)
        - Reasons for deference specific to 2(b)
           1. Low value speech – Keegstra and Butler, if it is characterized as low value the
              government gets high defernce
           2. Total vs partial bans – Irwin Toy (partial) and RJR MacDonald (total – minimally
              impairing, forms of advertisement). Puzzles around characterization, accept the
              court’s characterization and analogize to new facts.

GENERAL REASONS FOR DEFERENCE
  1. Competing interests – balance IND vs state – gov’t less deference, balancing interests of different
     groups in society then the gov’t gets deference (Irwin Toy, balancing interests of little kids
     against commercial advertisers, different groups)
  2. Scientific evidence/complex policy – really complex policy manners beyond competence of the
     court the governments get deference under s.1, makes the most difference under minimal
     impairment, rare for something to fail under obj. and r.c. branch. If government gives reasons
     then usually accepted.

TODAY
            -   Identify the interests at stake in regulating speech on public property
            -   Identify the different forms of doctrinal rules for such regulation
            -   Formulating a new doctrinal rule – bring order to the chaos

SPEECH ON PUBLIC PROPERTY
        - Where does the onus lie
      How much of a burden does the claimant have to bear? It is related to the interests of speaker
        and government.
        - Which interests are at stake for the speaker, for the government

WHAT KIND OF DOCTRINAL RULE?
      Balancing at the s.2(b) stage?
      Balancing at the s.1 stage?
      Which factors to balance?
        - How do you create a rule that regulates this area of freedom of expression?
                          Constitutional Law – Exam Outline

            -   Have legal regulation which limits ppl from expressing themselves, such as airport or all
                forms of public property. Why is this any different from any s.2(b) claim?
            -   Scope of the conflict – intuition that public property is public (owned by the ppl) it
                should be a forum where people should express themselves, ex: airport. Also a place
                where people can express themselves effectively. Reasons why we want broad
                expressive right. But, also, it is public property and there are people in that public
                property who have the right not to listen to you, and this property is owned by the people
                for a public purpose and so if this means you can exclude them from talking then the
                government has a right to regulate, undermines the functions that the property serves.
            -   How do you turn it into a doctrinal rule?
            -   Balancing at s.2(b) or reserve it all at s.1

JUSTICE LAMER – INTERNAL LIMIT
         - S.2(b) (onus on claimant), consistency of speech with the function of the place
         - S. 1, (onus on) government purposes limiting speech – also think of the link between the
             individual expressing themselves and the public’s interests - maintaining law & order.
       Public property exists as a representative and so should enforce the functions of the property
         and protect it. should also act as a limit on what can be done.
       There are internal limits, motivations concern the extra burdens that would be imposed on the
         government
       If s.2(b) is to be limited it has to be limited at s.1!
       Your rights extend only as far as the rights of others

JUSTICE L’HEURUEX-DUBE
         - No limit in s.2(b) (onus on claimant), a broad reading, shouldn’t be concerned with an
              internal limit and instead reverse the Irwin Toy distinction between regulating purposes
              and effects. Virtually any limits send you immediately to s.1
         - S.1 – (onus on government – huge burden, have to justify too much)
       Criteria for public space – are there alternative means of expressing yourself? Does the
         listener have mobility?
       Factors for reasonableness of regulation

            -   Conflict between the 2 reasons thus far, where to build the limit? The consequences are
                the burden it places on the governmet, H-D makes the government do way too much,
                how much unnecessary burden are you placing on the government?

JUSTICE MCLACHLIN
         - S.2(b): time, manner and place of expression incorporated into the purpose-effect
            analysis
         1. If you have a reg that in it’s purpose aims to regulate content then you have to go to s.1
            regardless of wehterh it’s on public property
         2. If it’s content neutral then you have to do the standard Irwin Toy analysis? Is it
            consistent with atleast one of the purposes? Onus on the claimant
          Only wrinkle is that the claimant has to incorporate the place of the speech into the
            purposes.
          Preserve the distinction b/w purpose and effect and doesn’t bring an external limit into
            the analysis – just that speaking in this place fulfills the designated purpose
         - Function factors into the minimal impairment analysis and then you juxtapose it to the
            individuals rights and why they are tied to the place and do the s.1 balancing like this.
         - S.1 balancing:
                         Constitutional Law – Exam Outline

          Function of the place vs. individual’s interst in communicating in that place
           - Follows precedent, addresses governments being overburdened in s.1 analysis
           - Bringing us within the general ambit of the Irwin toy test
           - Compromise position, benefits of placing main protections of 2(b) and place the onus on
              the claimant and not an excessive burden and don’t ask about function of the place
              because keep that in the s.1 analysis thus placing the burden on the government
           - Compelled listening – function of the place, protect against compelled listening

REFORMULATED RULE – Montreal City v. 2592 Quebec Inc
       - Does expression on this government-owned property conflict with s.2(b)’s purposes?
       - Factors to consider:
           1. Historical or actual function of the place?
           2. Do aspects of the place suggest that expression there would undermine s.2(b)
               purposes? – sort of an out that allows for an evolution of the place
       - Then standard purpose or effects test:
      If regulation of speech in effect, the claimant shows that this particular speech is
       consistent with s.2(b)’s purposes

CONCLUSIONS
        - Integrate public property analysis into the s.2(b) stage
        - How to formulate a new doctrinal rule – if you have a conflicting case law can trace
          out in the evolution of cases how the court generates a new rule and balances the
          kinds of interests relevant
        Committee for the Commonwealth of Canada v. Canada (1991)
Facts              - PLs attempted to distribute pamphlets addressing their political goals in the public
                       concourse at the Montreal airport.
                   - Informed that it was prohibited, only exception was sale of poppies by public vets.
                   - S.7 of the government airport concession operations regulations – prohibited any
                       advertising or solicitation in the airport without the authorization of the Minister
                   - Restriction/violation of s.2(b)
                   - Won at trial/appeal and SCC
Issue              - Was the restriction a violation of their fundamental freedom off expression exercised on
                       public property?
Holding            - Yes – not inconsistent with the functioning of the prop
Ratio              - LAMER
                   - Property owned by government is essentially a public forum – favourable platform for the
                       dissenmination of ideas because certain that large groups will pass through and so by their
                       very nature suited to free expression
                   - But not every form is permissible, the legal analysis in order to make a determination
                       must involve examining the interests at sisseu, namely the interest of the indidivual
                       wishing to express himself in a place suitable for such expression and that of the
                       government in effedctive operation fo the place owned by it.
                   - Interest of the individual – the dissemination of an idea is most effective when there are
                       large numbers of listeners - the economic and social structre of our society is such that
                       the largest number of individuals, or potential listeners is often found on state property
                   - Government interest – government owns places for the citizens’ benefit and use and so
                       their right to ownership cannot in itself authorize an infringement. Citizens have an
                       interest in seeing that the props are administeterd and operative in a manner consistent
                       with their intended purpose.
                   - Balancing for the purposes of s.2(b) – the individual will only be free to communicate in a
    Constitutional Law – Exam Outline

     plac eownerd by the state if the form of expression he uses is compatible with the
     principla function or intended purpose of that place. Before expressing, must consider the
     function which that place mut fulfill and adjust his or her means of communicating so that
     it doesn’t impede the function. Limitation is due to the fact that one’s rights are always
     circumscribed by the rights of tohers and so s.2(b) circumscribed by the very function of
     the place. If communication takes a form inconsistent with the function of the place then
     it falls outside the sphere and is not protected.
-    State’s main interests:
     1. Effective operation of prop
     2. Maintenance of law and order
-    Govertnmetn is not a private owner of prop, doesn’t have exclusive ownership rights
     instead owns the prop on behalf of citizens and their interests
-    HEUREUX-DUBE
-    if expression prhobitied on government owned property then there would be a vast
     reduction in the ability of all citizens to exercise this fundamental freedom
-    doesn’t grant access to all property and so need to consider certain criteria which can iad
     in determingin whic loctions are appropriate (p.1008, look to nature or location, public
     access to it, compatiblity of expression with purpose, impact property has on
     disseminations, symbolic significance, and availability of other public arenas for
     expression)
-    airports = contemporary corssroads and people have time to kill – can express views to
     those who want to listen but cannot impose views or force someone to listen to them, i.e.
     can express in stations but cannot place placards in buses because ppl are compelled to
     take the bus and so compelled to listen or read but in stations can just walk away.
-    Time, plnace and manner: whether these time, place and manner restrictions were
     reasonable in the context and cirucmstnaces of this particular case?
-    Consider: 1. Purpose of restrictions; 2. Restrictions should be tailored to objectives; 3. Are
     the restrictions free from discretion and arbitrariness; 4. Are there still other adequate
     alternatives for expression; 5. Evaluate if the restriction contributed beneficially to ensure
     the proper functioning of the government property
-    Objective is always to ensure efficient and safe operation of location – if impedes this not
     permissible
-    Regulation = a blanket exclusion on any type of activity because of vagueness and
     voerbreadth – too much discretion given to officials to determine what was an was not
     permissible
-    MCLACHLIN
-    Notes that LaMer’s compatibitly with function approach doesn’t effectively address the
     issues and hsoudl be considerd under s.1 analyiss instead. Also, onus on the clamant and
     might have difficulty in attaining all the proof needed, because the state is in the better
     position iwth regards to knowledge of the proper functioning of the location in quesiton
-    Approves of the Irwin toy test: distinguishes between restrictions aimed at preventing
     certain meaning being convered and restrictions which are not directed at content but have
     the effect of restricting expression
-    The test for whether s.2(b) applies to protect expression is: which class does the
     expression fall in?
     1. If the government’s purpose is to restrict the content of expression through
          limitng the forums in which it can be made, then this is impremiddible and s.2(b)
          applies.
     2. If the restriction is content-neutral it may not infringe on the rightat all. So, the
          claimant must prove that there is in fact a link between the forum chosen and
          one of the recognized purposes for freedom of expression:
                         Constitutional Law – Exam Outline

                        3. Seeking an obtaining the truth
                        4. Participation in social and political decision-mkaing
                        5. The encouragement of diversity in forms of individual self-fulfillment and human
                           flourishing by cultivating a tolerant, welcomimg environment for the conveyance
                           and reception of ideas.
                        - here, hte claimant was promoiting a political message in a location frequented by many
                           people (modern day equivalent of streets)
                        - to justify under s.1 must ocndier the state’s objectives in limitng the freedom:
                           1. primary aim may be seeking to contol the content of the expression, as where
                               particular messages are banned in a public forum
                           2. it purpose may be merely to control the consequences of public expression on the
                               property in question regardless of the meaning conveyed (consider: compatibility of
                               function with expressive activities here)
                        - balance these considerations with the interests of the claiamant – what does the claimant
                           lose by begin denied the opportunity to spread his or her message in the form and at the
                           time and place asserted?

            Peterborough (City) v. Ramsden (1993)
Facts                 - musician charged with breaking a by-law prohibiting affixing of posters on public
                          property. He was promiting his performance that coming up and argued that it challenged
                          his s.2(b) right.
Issue                 - does an absolute ban on postering on public property infringe freedom of expression?
Holding               - yes and not saved by s.1
Ratio                 - uses the Irwin toy test:
                          1. does it convey or attempt to convey a menaing?
                      6. Yes, postering is an effective and inexpensive way of promotion
                          2. Whether postering on public property falls within the scope of s.2(b)?
                      7. H-D approach: all restrictions in expressive activity on public property violates s.2(b).
                          Place restriction must be justified under s.1.
                      8. Lamer approach: we must balance the interest of the respondent in publicizing his
                          performances against hte state interst in ensuring effective and safe operation of services.
                          The question to be asked is therefore “whether attaching posters to public utility poles is
                          incompatible with the poles’ use of carrying utility transmission lines?” Still functioning
                          and therefore compatible even with poseter
                      9. McLachlin aporach: does the activity further any of the values or purspoes underlying
                          s.2(b)? And here, it furthers the purpose of participation in social and poticial decision-
                          making. Posters have communicated politica, cultural and social infor for centuries.
                          Increases the avaialbiltiy of info and fosters social decision making.
                       So, potering on some public property is protected by s.2(b)
                          3. Whterh the purpose or effect of the by-law is to restrict freedom of expression? (s.1)
                      10. The limitation at issue in the present case is a complete ban on postering on public
                          property. It will be more difficult to justify a complete ban on a fomr of expression than
                          time, place or manner restrictions.
                      11. Alternatives existed to narrow or lmit the blanket exclusion created by the by-law. Not
                          minimally impairing and not proportionate – the objective has not been achieved
            -   Recap:
                I.      Speaker’s interests
           Speaker’s general interest in expression – in speaking in a public forum
           Speaker’s specific interest in expressing in this place – get message across more
            effectively
                         Constitutional Law – Exam Outline

                II.     Government’s interests
           Government as owner acts in the public interest – not as private owners but for a
            specific public purpose and government regulates it in pursuit of the public purpose
           Listeners may have a legitimate interest in not being compelled to listen – autonomy,
            in certain circumstances where they have no meaningful choice but to listen they
            might want the government to regulate (ex: abortion messages in bus) and
            government validly regulates in pursuit of that interest
                III.    Systemic concerns:
           Predictability – want to generate doctrinal rules that ppl can organize their affars
            around, don’t want uncertainty.
           Burdens of lititgation – don’t want to overburden the government with having to
            show that all kinds of uses of public forums have to be justified after showing an
            infringement
           Expectations – common sense stuff, people understand certain forums to have certain
            functions and so common sense that shouldn’t be subject to s.2(b) override.
            Expectations that government and citizens have for certain areas being open to
            expression and others not and want rules to reflect that. Want to have a rule that takes
            into account the historical and actual function of the place geared towards meeting
            government and individual expectations of that place.

THE FORMS OF DOCTRINAL RULES
       - LAMER – consistency of speech with the function of the place
       - Heuruex-Dube – no lmits at s.2(b), consideration of factors at 1 – rejecting the
          content neutral and substance specific from Irwin toy – est activity is expressive
          and go straight to s.1
       - mcLachlin – time, manner and place of expression incorporates into the purpose-
          effect anylsis at 2(b) with the balance at s.1. purpose goes straight to 1 and
          effects must show that expression is for values and then go to s.1

REFORMULATED RULE (MONTREAL) – tries to accommodate all the different sets of
reasonings and purposes
           - Does expression on this government owned property conflict with s.2(b)s
              purposes?
           - The DOCTRINAL rule:
        Historical or actual function of the place – designed to allow for evolution of the
           usnes of places – is this a place where public expression normally happen?
        Do aspects of the place suggest that expression there would undermins s.2(b)
           purposes?
           - If regulation of speech in effect, then the claimant shows that this aprticualr
              speech is consistent with s.2(b)’s purposes
           - Question: does the rule make sense?

            Montreal City v. 2952-1366 Quebec Inc. (2005)
Facts                 - S. 9 and 10 – no noise can be produced that is prohibited in these sections
                      - Operator of a exotic dance club and put loudspeaker outside that was blasting music and
                          commentary after midnight
              Constitutional Law – Exam Outline

Issue     -
Holding   -
Ratio     -    Violenece prevents dialogue, prevents order, etc.
          -    Step 1: has to be expressive
          -    Content – look to method and location (if undermines the values then not protected) and
               here it does have xpressive content because telling ppl of show inseide – just because low
               value doenst exclude it from protection. But location is an issue, because although speaker
               on private property it emitted a noise/message on public property so everyone could hear
               it.
          -    Form
          -    Step 2: don’t get to purpose/effect until pass this step, if there is regulation in a public
               forum then always do this first...
          -    Test for public property:
          -    The basic question with respect to expression on government-owned property is: whether
               the place is a public place where one would expect constitutional protection for free
               expression on the basis that expression in that place does not conflict with the purposes
               which s. 2(b) is intended to serve (there has to be an indirect relationship between rights
               and the rights of the individuals within that place), namely:
                (1) democratic discourse,
               (2) truth finding and
               (3) self-fulfillment.
               To answer this question, the following factors should be considered:
               a) the historical or actual function of the place (indicates purposes consistent with
               function, if historically used and protected then ok because past practices make it
               consistent, actual functions means despite being public is the function in essence private,
               i.e. cabinet meetings – keep in mind if it undermines values, and most cases can be
               decided at this stage, is the function compatible with open public expression or does it
               need privacy - ); and
               b) whether other aspects of the place suggest that expression within it would undermine
               the values underlying free expression. – IF EXPRESSION has been permitted than
               expression in this public place does not contravene the purposes of freedom of expression
               – tries to draw an analogy with violence, indirect relation.
          -    Broad enough and yet narrow enough that it ensures that government doesn’t have to
               justify every exclusion or regulation
          -    Flexible enough to account for future developments
          -    Based on test, the infringement is a violation – expressive in a public place that has long
               accepted numerous forms of expression
          -    Step 3:
          -    Does it attempt to regulate through purpose (benign) or effect (restricts expression – so
               must make out that underlies one of tha values)? If in effect then claimant shows that it is
               consistent with purposes of s.2(b)...doesn’t aim at content (stopping people from going to
               strip-clubs), aims at form (preventing loud noises).
          -    Yes, attend a leisure activity that is lawful for self-fulfillment
          -    S.1 – get alot of deference becuse court’s won’t interfere with Parliaments regulation
          -    Pressing and substantial – curtailing noise pollution
          -    Rational connection – yes, designed to curb noise pollution so not to interfere with ppls
               right to peaceful enjoyment
          -    Minimal impairment – is it tailored in a reasonable way? Regulation by sound degree
               not effective because cumulatively all legal degrees could amount to an interference and
               would not curb the particular type of noise that they are trying to ban. Also hard to
                          Constitutional Law – Exam Outline

                           enforce and detect.
                      -    Salutary vs. deleterious – even though on a busy urban street with a heavy commercial
                           nightlife it doesn’t mean that citizens should be forced to not have peace and quiet

Charter section 2(b) – Speech and Political Processes

IDENTIFY THE RULE FOR DEFERENCE IN THE CONTEXT OF POLITICAL SPEECH
IDENITFY THE EXCEPTIONS
RECONCILING (APPARENTLY) CONFLICTING CASES

          Libman v. Quebec (Attorney General) (1997)
Facts               - Constitutional validity of Appendix 2 of the Referendum Act, the impugned provisions
                       place limits on the expenses that may be incurred during a referendum campaign, inter
                       alia by settin out what types of expenses are permitted and who may incur them.
Issue
Holding
Ratio                 -    Political expression is at the very heart of the values sought to be protected by the freedom
                           of expression guaranteed by s.2(b) of the Charter.
                      - Unless the expression is communicated in a manner that excludes protection, such as
                           violence, the court recognizes that any acitivty or communication that conveys or attempts
                           to convey meaning is covered by the guarantee of s.2(b) of the Canadian Charter.
                      - Appellant trying to convey meaning independently of national committees so it is a form
                           of expression clearly protected by the Charter
                      - To be able to incur regulated expenses ahve to belong to a national committee and since
                           regulated expenses is defined broadly most of the expenses incurred fall within this
                           category and so ppl who do not or cannot join a national committee are excluded and
                           therefore denied the ability to express their opinions and points of view which infringes
                           their freedom.
                      - WHAT IS THE RULE ABOUT POLITICAL SPEECH? If you are attempting to regulate
                           one of the core principles/values of freedom of expression than government doesn’t get
                           lots of deferece
                      - There are regulations on how much unaffiliated people can spend –
                           1. Is this expressive speech? Yes, it is political speech.
                           2. How much deference? Political discourse is actually one of the core principles of
                                freedom of expression so government should not be granted alot of defernce in order
                                to be able to regulate because attempting to convey meaning in line with freedom,
                                high value sppech (distinguish from Keegstra and Butler)
                      - Regulated system allows for all people to have equal access – if not then based on how
                           much money you have you may dominate and ensure that your messages are heard over
                           everyeon elses and listeners are at their mercy and get overwhelmed thereby denying them
                           the ability to formulate a balanced decision after hearing everything. The purpose of this
                           restriction is to promote democratic deliberation since everyeon gets their say and
                           everyone can hear the differing messages and formulate opinions all other cases the
                           deference shifts.
                      - General case:
                     High value speech, government restricts, low deference to government, courts will closely
                      scrutiniza
                     In libman – restricting speech for the purpose of promoting high value speech (democratic
                      deliberation) so high deference (bumps the deference up) – balancing of interests and
                      complexity of sceientific evidence, high value/low value and partial/total ban all affect level
     Constitutional Law – Exam Outline

    of deference.
   We get 1 rule with 1 excpetion – the prupose of limiting is to promote public speech – another
    example is 15(2) Kapp
    - S.1 analysis:
    12. Objective of the act:
     Egalitarian in that it is intended to prevent the most affluent members of society from
        exerting a disproportionate influence by dominating the referendum debate through access
        to greater resources. An equality of participation and influence between the proponents of
        each option. The system is designed to permit an informed choice to be made by ensuring
        that some positions are not buried by others. The system is designed to permit an
        informed choice to be made by ensruing that some positions are not buredi by others. The
        system is designed to preserve the confidence of the electorate in a democratic process
        that it knows will be dominated by the power of money.
    13. Proportionality:
     Rational connection – spending limits are essential to ensure the primacy og the principle
        of fairness in democratic elections. Ensures equal participation so that one person does
        not monopolize and hinder the communicative abilities of others. Certain rights and
        freedoms can be restricted in the name of a healthy electoral democracry. Allows all
        citizens to be reasonably informed of all possible choices because have access to them all.
        To be effective they must apply to all possible expenses even independent ones because
        could undermine all the aforementioned goals since could promote one candidate or party
        to the detriment of others, could have a disproportionate influence on the vote. Number of
        independent spenders is far greater than that allowed so by allowing them t spend
        unregulated would be detrimental. Same argument applies for refereda where
        independent spending could favour one option over antoher. Need to balance and ensure
        a truly informed vote.
     Minimal impairment – social, economic and political spheres, where the legislature must
        reconcile competing interests in choosing one policy among several the courts will accord
        them great deference because they are in the best possible position to make that choice.
        However, since political expression is at the core of this freedom it also needs great
        protection. But, deference reigns to arbitrate between the democratic values of freedom of
        expression and referendum fairness. Political equality is at the heart of a free and
        democratic society. Ensure that each vote will be free and infrmoed. Provisions are not
        purely restrictive as they try to promote political expression by ensuring an equal
        dissemination of potins of view and respect democratic traditions. The role of the court is
        to determine whether the means chosen are reasonable while still according some
        deference. Note that a failure to satisfy the minimal impairment test will be found only if
        there are meansures clearly superior to the measures currently in use.
     Court concludes that the expenditure limits cannot meet the minimal impairment in the
        case of individuals who cannot join the national committees or participate in the affiliation
        sstem. (re: s.404) The Act could permit citizens, either individually or in groups, to sepnd
        a certain amount on an entirely discretionary basis while prohibiting the pooling of such
        amounts. To limit the scope of this exception and rpevetn abuse, the legislature could also
        be at liberty to exclude from its application ertain individlas or groups who have already
        platofmrs from which to express their views, such as the antioanl committees, affiliated
        groups and individuals or groups belonging to the national committees or affiliated
        groups. Since s. 404 doesn’t meet the test, all the provisions must fail.
     Deleterious effect vs salutary? It is clear from our analysis that protecting the fairness of
        referendum campaigns is a laudable objective that will necessarily involve certain
        restrictions on freedom of expression.
                           Constitutional Law – Exam Outline

           Haig v. Canada (1993)
Facts                 - Haig who recently moved to quebec from Ontario didn’t satisfy the 6-motnht residency
                         requirement and was not ordinarily resident in a polling district in the rest of Canada as
                         required by the fed. legislation.
Issue
Holding
Ratio                  -    Government is not under a constitutional obligation to provide a platform for speech –
                            rule about platforms – court says that voting in a referendum is expressive but since
                            government doesn’t have to extend platform there is no violation SO government is not
                            required to positively provide you with a platorform for speech and referendums are a
                            specific example of this
                       -    Refs are political platforms – is this consistent with Libman? The simple facts of a
                            referendum insulates it from scrunity. The distinction is when a government has to
                            provide you with the resources to express yourself.
                       -    s. 3 – right to vote in an election – referendum is not an election
                       -    s.2(b) – does try to convey meaning in terms of political discourse so highest degree of
                            protection and cannot be examined apart from its form which is participation in the
                            referendum. Casting a ballot is a form of expression.
                       -    Normally rights only impose on government an affirmative duty to protect and freedoms
                            just require non-interference but too narrow since in some situations non-interference may
                            impede the enjoyment of freedoms and so governmental action is needed.
                       -    However, there is no constituaionally entrenched right ot participate in a referendum. It is
                            a creation of legislation and statute governs terms and conditions – no right to vote to all
                            citizens.
                       -     There is an issue about what are the obligations on the government to respect 2(b) in the
                            context of governmemts – because ref no 2(b) rights, but in Libman happens in the whole
                            context of ref
                       -    It is undoubtedly a form of expression but it does not impose upon the government a
                            positive obligation to consult its citizens through the particular mechanism of a
                            referendum – matter of legislative policy and not constitutional law.
                       -    Government can choose to not even follow the decision
                       -    DISSENT:
                       -    Reality was that Parliament wasnted a national referendum and so must do so in
                            compliance with the Charter. An important expressive acitivty relating to constitutional
                            change. Right to express opinions in social and political decision-making attracts the
                            protection of s.2(b)
                       -    Haig free to express views prior to the vote, but denied the ability to participate in the
                            vote.
CONCLUSIONS
PUBLIC FORUMS, INTERSTS AND THE FORMS OF DOCTRINRAL RULES
POLITICA SPEECH, PLATIFORMS AND RECONCILING CASES

SECTION (2) – FREEDOM OF RELIGION
CONCLUSIONS ABOUT SPEECH
        - Recap: Montreal City Test
             1. Assess the significance of the speech in the place:
      Historical or actual foundation of the place
      Do aspects of the place suggest that expression there would undermine s.2(b) purposes? A
        place may evolve such that expressing yourself in the place would undermine the 2(b)
        purposes (catch-all)
                          Constitutional Law – Exam Outline

              2. Standard ppurpose/effects analysis
              3. Go to section 1
         - Questions about Montreal Test:
              1. What is the connection between historical/actual functions and the purposes of the
                  freedom of expression?
              2. Does this test balance the relevant interests effectively?
              3. Does the test balance the interests better than the alternatives?
      whole point of the Canadian commonwealth case. Does it resolve the different reasons in the
         commonwealth case?
RECAP OF POLITICAL SPEECH
         - rule about deference for restriction of polticial speech – saw that it is high value so
              government action gets little deference
         - exceptions:
      restrictions aiming to facilitate political speech -Libman case, even though relatively high
         deference to facilitate the speech – if you aim to facilitate it through restriction you get more
         deference – restrictions in Libman are not minimally impairing because the level of
         restrictiveness amounts to seomthing like a total ban and due to this total bans get no
         deference.
      government platforms – (for speech) in Haig the majority says that voting is political speech,
         high value, but we are not going to find a violation because the government is not obliged to
         provide a platform (referendum) to anyone much less everyone. Because not obliged to
         provide a platform there isn’t even a violation of s.2(b).

LIBMAN AND HAIG
      is there a contradiction?
        - In both cases, there is a referendum – in the haig case, referendums are platforms and so
            no analysis because under no obligation to provde the platform
        - On it’s face – there seems to be contradiction
      If so how do we resolve it?
        - Make a positive-negative distinction, the general point is that often faced with cases htat
            are inconsistent – try to figure out how to reconcile them
COMPLETE OVERVIEW OF FREEDOM OF SPEECH
        - Aa framework for s.2(b) analysis:
            1. Speech or not – expressive content not violent
            2. Kinds of regulation: compulsion (RJ McDonald, unattributed warnings) and
                 restriction (all the other cases)
      Cleared on these 2 questions:
            3. Ask, if the public forum rule applies (if necessary –if not then skip this test) – apply it
                 and then
            4. Regulating in effects or in purpose (if purposes then straight to s.1 because regulating
                 content of speech – Keegstra and Butler)
            5. If regulating in effects then the onus shifts to the claimant to show whether speech
                 advances one of the valid purposes
        - If regulating in effect, content-netural
            6. Go to s.1
        - Section 1 and deference and reasons specific to 2(b)
            1. Low value speech – keegstra and butler
            2. Total vs. partial bans – rj macdonald
            3. High value speech rule and its expcetions – libman and haig
        - General reasons for deference:
                           Constitutional Law – Exam Outline

               1. Competing interests
               2. Scientific evidence/complex policy

INTRODUCTION TO RELIGIOUS FREEDOMS
       - Substantive objects: identify the various categories of freedom of religion cases AND
          consider what qualifies as a substantial burden in s.2(a) significant and non-trivial
       - Methodological objective is constitutional line-drawing – how much is enough to
          constitute a violation, a question of degree – push the reasons and determine at what point
          does something tip over and become unconstitutional
       - Shifting purpose – assess at the time it was written – the original purpose was to enforce
          a religious belief against people, it doesn’t matter that things have shifted since then –
          important not to have shifting purposes
       -

           R v. Big M Drug Mart Ltd (1985) – impermissible governmental objective!!! (and Vriend)
Facts                 - Challenging the constitutionality of Lord Day’s Act which makes doing work on Sunday
                         (Christian Sabbath) punishable by summary conviction
Issue
Holding
Ratio                  -   Government’s purpose is to force people to engage in religious practice – intention to
                           discriminate – so fails objective of Oakes test
                       - Rights aren’t gifts from the State, they are natural law – why there is mention of a God
                       - Neutrality:
                      What is the nature of the harm in Big M – can have a violation of a s.2(a) right if the
                       government has an improper purpse than don’t have to consider the actual impact/effects –
                       violates the Charter’s guarantees.
                        Initial question – you can have a violation of s.2(a) because of an improper purpose – hard
                           to imagine an improper purpose not having an improper effect
                        The harm is that the government seems to be favoring one religion over another – cannot
                           sponsor one religion over the other. If government imposes something that has harmful
                           effects then everything makes sense but if it’s just purposes – then doesn’t impose
                           diabilities it sponsors one over the other. Need to defend everyone’s rights equally so
                           cannot sponsor. Nature of the harm is not done to any specific individual, it is about the
                           fact that the government is favoring one over the other. The government is taking one
                           side over another.
                        An endorsement of one religion over another – the point is when is it reasonable to
                           construe something as being partial? Lord’s Day Act versus things that reflect the
                           heritage of the community?? Is that problematic? Religious belief in government isn’t
                           sufficient to ground a violation? Because what if it speaks to the heritage of the
                           community?
                        Symbols and displays that are more ambiguous
                      What does freedom of conscience entail?
                        The ability to chose your own beliefs – want to be able to resist the government’s attempt
                           to compe you to adopt a certain religious practice which extends to atheists and non-
                           similar religious beliefs
                        Every ind. is free to uphold asnd manifest any beliefs that his conscience dictates – court
                           mentions conscience in the context of an individual resisting compulsion and in
                           Morgentaler, freedom to make decisions according to beliefs/conscience)
                        Problem – what kinds of belief, independent of religious belief, will be protected by s2(a)
                           – court cryptic and never had to deal with it – EXAM, unsettled question in the law and if
    Constitutional Law – Exam Outline

     were to answer it build off the language in Big M – compulsion violates freedom of
     conscience (resisting attempt of state to impose beliefs – religious – on you, but what
     about if it violates yours deeply held beliefs that aren’t religious)
    Is there an intention to impose a belief on people? Ex: Christmas tree in the eaton centre,
     beautiful but it is a Christian symbol
    Shifting purposes?
    Limits: 2 sets of considerations:
     1. Actual purpose – cross int he courtroom, what would a reasonable observer believen
          when confronted with it? contradictions between purpose and no longer understood
          reasonably to be about religion??
-    Characterization of the Act:
    Securing public observance of the Christian institution of Sabbath
    Providing a uniform day of rest from labour (with a specification that it be on the
     Christian Sabbath)
-    Purpose and effect:
    Religious purpose
    Purpse and effect are both relevant and indivisible becaue all legislation is animated by an
     object the legislature intends to ahceive. This object is realized through the impact
     produced by the operation and application of the legislation.
    The legislation’s purpose is the initial test of constitutional validity and its effects are to
     be considered when the law under review has passed or, at least, has purportedly passed
     the purpose test. If the legisaiton fails the purpose test, there is no need to consider further
     its effects. The effects test will only be necessary to defeat legislation with a valid
     purpose; effects can never be relied upon to save legislation with an invlaid purpose.
-    Freedom of religion:
    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.
    Charter protects, within reason, from compulsion or restraint. Limitations may be
     necessary to protect public safety, order, health, or morals or the fundamental rights and
     freedoms of others, no one is to be forced to act in a way contrary to his bleifs or his
     conscience.
    Charter safeguards religious minorties from majority.
    This Act creates a climate hostile to, and gives the appearance of discrimination against,
     non-Christian Canadians.
    Non-christians are prohibited for religious reasonas from carrying out activities which are
     otherwise lawful, moral and normal
-    The purpose of protecting freedom of conscience and religion:
    Analysis of the purpose is to be understood in the light of the interests it was meant to
     protect
    Is sought by reference to:
    The character and the larger objects of the charter itself
    The language chosen to articulate the specific right or freedom
    The historical origins of the concepts enshrined
    And where applicable, the meaning and purpose of the other specific rights and freedoms
     with which it is associated within the text of the charter.
    Interpretation should fulfill the purpose of the guarantee and secure for individuals the full
     benefit of the charter’s protection
    The values that underlie our political and philosophic traditions demand that every
     individual be free to hold and to manifest whatever beliefs and opinions his or her
                         Constitutional Law – Exam Outline

                          conscience dictates, provided inter alia that only such manifestations do not injure his or
                          her neighbours or their parallel rights to hold and manifest beliefs and opinions of their
                          own.
                         Governments can force you to follow a religion or comple you not to do something that is
                          harmless because it may have some religious meaning to someone else
                         Multiculturalism means that can’t prefer one religion over another
                         State cna’t use criminal sanction to achieve its religious goals
                     -    Section 1:
                         Proportionality test: the court may wish to ask whether the means adopted to achieve the
                          end sought do so by impairing as little as possible the right or freedom in question.
                         Disingenuous to say that the legilsaiotn is valid criminal law and offends s.2(a) because it
                          compes the observance of a Christian religious duty, yet is still a reasonable limit
                          demonstrably justifiable because it achieves the secular objective the legislators did not
                          primarily intend.
                         A secular objective which in pith and substance involves a religious matter justified by s.1
                          would invite colourabiloity, allowing Parl. to do indirectly what it could not do directly

                     -    Big M as corporation, creation by ststute no conscience and so no religious beiefs?
                          Doens’t matter, any accused may defend a criminal charge by challenging the
                          constitutionality – ability to exercise freedom of religion is therefore irrelevant.

          Edwards Books and Art Ltd. v. The Queen (1986)
Facts              - Province of Ontario passed Retail Business Holidays Act which made Sundays and
                       various other days holidays “common pause days” in society.
                   - Agreeemtn that it was enacted with the intent of providing uniform holidays to retail
                       workers not an attempt to encourage religious worship – there are secular purposes
                       underlying the ACT.
                   - Distcint from Lords Day Act because it provides exemptions for ppl who have to poen on
                       Sunday
Issue
Holding
Ratio                -    Undue interference:
                         What counts as an undue burden? According to Edwards Books? No sense of an attempt
                          to compel people to practice, no religious purpose, just want to provide a day of rest.
                         S.2(a) vilation – because undue burden on ppl who observe Saturday Sabbath – economic
                          disadvantage – if can only close on Sundays and you observe on Saturdays then on a
                          competitive disadvantage with those who can stay open on Saturday and close on Sunday
                          only.
                         Claim is only significant burden and not trivial insignificant burdens, so what counts as a
                          significant burden?
                         big economic impact
                         affects families
                         is trivial measured by impact on everybody? Or just the people holding the religious
                          belief?
                         The suggestion – huge economic impact, an objective measure of value
                         Substantial when it imposes a cost that everyone understands to be significant (objective)
                         Also, subjective because being forced to make a determination between religious beliefs
                          (observances ) and economic ability – pressure not to close on Saturday and not practice
                          beliefs – not trivial or insubstantial when it pressures you to go against your religious
                          beliefs or choose not to engage in religious practices (through state-imposed burden)
 Constitutional Law – Exam Outline

 Affects you, pressure to abandon a central tenet of your religious beliefs
 Objective economic burden and pressure on you to abandon a central tenet of your belief
- PURPOSE AND EFFECTS TEST:
  1. The purpose is secular
  2. Effects – indirect or direct coercion are protected by s.2(a)
 Only unintenaiotnal and indirect burdens will not be held to be outside the scope of the
  Charter – doen’t have to eliminate every miniscule state-imposed cost associated with
  religion
 S.2(a) ensures no interference with profoundly held personal beliefs
 Action which increases the cost of practising or manitfesting religious beliefs is not
  prohibited if the burden is trivial or insubstantial
 Note – one is not being compelled to engage in religious practices merely because a
  statutory obligation coincides with the dictates of a particular religion
 Inteniotn to express or manifest his or her non-conformity with religious doctrine – none
  of the retailers are motivated by something other than money
- The impanct of the ACT
 Non-observers – if can’t fit in one of the statutory exemption than have to close on
  Sundays –reducing their competitive advantage – but if not Sunday then one other day so
  not substantially affected and no evidence that desire to remain open is for religious
  prupsoes rather than purely business consideration
 Sunday observers – favourable impact, close the day of their observance, relieved of a
  loss of market share
 Saturady observers – most adversely affected. the state is under no duty to take
  affirmative action to eliminate the antural costs associated with religious practices but
  here it the purely statutort obligation requires that they close on 2 days and so makes it
  more expensive for them to practice their religion. Also affects Saturday-observing
  consumers negatively because work all week and leave eraands for the weekend, but
  saturady can’t do anything and Sunday everything is closed
- Section 1 – balanced interests at s.1 and resulting burdens
- Exceptions – 7 employees or less and small space can stay open but if you employ alot of
  people in a bigger space then you don’t have the option to stay open. Suggest that it does a
  good job of balancing interests – individual and collective
 Ojective? Is of pressing and substantial concern because ti gives everyone an opportunity
  to expericen family acitivites
 Rational connection? Assessment of how well the legislative garment has been tailored
  to suit its purpose. Why focus on retail industry? Report indicates most competitive, alot
  of pressure, people staying open against their wishes just to be able to compete.
 Whether the Act abridges the freedom of religion of Saturday observers as little as
  reasonbbly possible? Is there some reasonable alternative scheme which would allow
  the province to achieve its objective with fewer detrimental effects on religious freedom.
  By balancing the interests of retail employees to a holiday in common with their family
  and freinds against the s.2(a) interests of those affected the legislature engaged in the
  process envisaged by s.1 of finding a reasonable lmit. Courts cannot substitute judicial
  opinions for legislative ones. Here, made a satisfactory effort and so permissible. Is it
  minimal impairment to release or impose a burden based on employees and square
  footage? Does that make sense, some people get the absolute maximum burden/an
  absolute deprivation for a whole group of observers. But more economically powerful – s
  maybe they can take the hit – bigger businesses are more liable to abuse their employees.
  How is this minimally impairing if it is a total violation of owners of big businesses?
  Large businesses can better absorb the cost of closing for 2 days – less pressure than that
                            Constitutional Law – Exam Outline

                             on a small business – but in reality, big business owners compete with other big business
                             owners so issue still remains.
                            Total deprivation is ok to get to the result – legislation gets amended and removes the
                             dividing line between minimum workers and square footage
                            The infringement is not disproportionate to the legislative objectives. A serious effort
                             has been made to accommodate the freedom of religion of Saturday observers, in so far as
                             that is possible without undue damage to the scope anq uality of the pause day objective.
                        -    BEETZ: Dickson flawed in reasoning because erroneous to suggest that the effect of the
                             Act is to induce a Saturday observer to choose between his religion and the requirements
                             of business competition – you chose that religion you deal with the consequecnes
                        -    WILSON, DISSENT: legislation is intra vires because establshises common pause day
                             for those in retail industry in province.
                        -    Disagrees that exemption is justified for big and not small enterprises based on fact that
                             big enterprises have more employees and so denying more people the benefit of the
                             legislation. Here, the effect makes the legislation vulnerable to attack because cannot
                             decide to subordinarte the freedom to some members and not others.
CONCLUSIONS
        - WHAT DOES NEUTRALITY MEAN WHAT DOES UNDUE BURNEN?
        - LINE DRAWING TO DEFINE UNDUE BURDENS

DEFINITIONS AND BOUNDARIES OF FREEDOM OF RELIGION
        - Recap:
         Categories for freedom of religion cases:
         State interference with/coercion to engage in religious practice (Big M case - intention to
           compel people to affirm beliefs that are not their own, Edwards Book Case – due to
           immense commercial pressure)
         State partiality – if there is simply an improper prupose, sufficient, don’t need a finding
           of unconstititonal effects – idea that State can’t express a preference for one religion over
           another.
         What counts as a more than trivial burden?
         The burden has to be more than trivial/unsubstantial – sales tax that denies the people the
           opportunity to purchase religious artifacts. Look to: how central it is to the beliefs held?
           Even if objectively looks like it may not be. What constitutes non-trivial, etc?
         When should freedom of conscience be protected?
         Situation where the state is imposing a practice/belief on a non-beliver. Big M, includes
           the ability to not engage in the practice. Generally unsettled area of law.
         Why is the law in Ed’s Books minimallyimpairing?
         note that it affects store owners with more 7 employees and X square footage.
         Balancing of interests, competing interests, unclear = deference

TODAY:
            -   Identify what counts as religion
            -   Identify what counts as a protected right
            -   Questioning/identifying the fit between underlying purposes and doctrine

WHAT’S THE CONCERN UNDERLYING THIS ARE OF 2(A)
        Syndicat Northcrest v. Amselem (2004)
Facts             - Orthodox jews who set up succahs on their balconies contrary to by-laws which
                      prohibited construction on balconies
                  - Owner of unit said that they could set up a communal one in garden but that was contrary
              Constitutional Law – Exam Outline

               to their religious beliefs
          -    Owner wants injunction
Issue
Holding
Ratio     - THE state should not engage in the role of arbiter of what counts as religion – what
            religion is
          - No invidious state interference with religious belief.
          - Should the courts determine what counts as a valid religious purpose?
          - Subjective sincerity vs. practice claimed to be sincere and collective agreement as to
            sincerity of practice.
          - What counts as religion?
           Particular, comprehensive system of spiritual faith
           Divine, superhuman or controlling power
           Self-definintion and fulfillment, fostering a connection witht he didive or object of faith.
          - Isn’t the state required to determine what religion is or is not?
           Court has to define what religion is, in defining religion isn’t it engaging in the role of an
            arbiter determining questions of religion dogma.
           Background definition that isn’t invidious
           Maybe don’t have to satisfy all the requirements of the aforementioned definition
           1 possible problem is that it engages the court with determining what counts as religious
            dogma by considering everyting that fits in def and everyting that doesn’t - maybe
            however it is necessary?
           2nd problem – courts have in mind when offering the definition are things that everyone
            has in mind as being religious – Charter however is to protecte minority and what happens
            with ppl whose religion falls outside?
          - What counts as spiritual, comprehensive or divine?
          - Are there other attributed of religion?
           Seems as if the courts are engaged in the practice they don’t want to be in
           Definiont is open ended but seems to have as model majority interests
           Incredibly qualified – typically has these things but not exhaustive – may not offer any
            real limits and not exclusive
           Test: freedom of religion is triggered when a claimant shows that he or she sincerely
            believes in a practice or belief that has a nexus with religion (definition is Particular,
            comprehensive system of spiritual faith, Divine, superhuman or controlling power, Self-
            definintion and fulfillment, fostering a connection witht he didive or object of faith) and
            must determined whether hte interference has been non-trivial or non-insubstantial.
           Step 1: have to determine whether the practice claimed in religious at all. LOOK AT
            DEFINIITON OF RELIGION AND CONSIDER PROBLEMS.
          - COURT SHOULDN’T BE AN ARBITER OR ELSE ENGAGING IN AN
            INTRUSIVE PRACTICE – BACKGROUND CONCERN FOR ENTIRE AREA
          - Always need some definition of religion, think of purposes of definition, what is is
            concerned with and issues relating to the definition.
          - What beliefs or practices are practicd under s.2(a)
           Sincere beliefs, sincere undertakings that are obligatory or voluntary
           Problem? Should we protect every deeply held belief? Run the risk of protecting people
            with mental issues.
           One way of putting pressure on this test is asking about minority beliefs within established
            institutions – court engage in this
           How far does this stuff go?
           Does extending this belief accord with the purposes of freedom of religion?
    Constitutional Law – Exam Outline

 Good reasons for excluding certain people – not protecting them – opening of floodgates
  and place incredibly onerous burden on state to constantly justify actions under s. 1
- Sincerity?
 Sincere if in good faith
 How do you show it? evaluate the credibility of testimony and consistency with other
  current religious practices
 Actually believes it, not trying to get around state’s laws, consistently obeys the dictates
  etc
- Seems to be a very subjective test coming out of this case
- How binding?
 What if a practice is desirable, but not required by the person’s subjective belief?
 Example: succahs are desirable but not required – look to the way it interferes with
  other’s interests?
 Can have a desirable belief that is purely subjective so how would you handle that in a
  s.2(a) analysis?
 How is the court going to define religion in such a way as not to interfere with it’s
  objective of not being an arbiter...etc
 Sincerity of belief simply implies an honesty of belief and the court’s role is to ensure that
  a presently asserted belief is in good faith, neither fictitious nor capricious, and that it is
  not an artifice. Assessment of sincerity is a question of fact that can be based on criteria
  including the credibility of a claimant’s testimony, as well as an analysis of whether the
  alleged belief is consistent with his or her other current religious practices. Focus on a
  person’s belief at the time of the alleged intereference
- However, must always engage in balancing of interest between individuals in society and
  enforcing protection must not harm or infringe on others
- They sincerely believe that they must all execute their biblically mandated obligation and
  build a succah and so forbidding them this opportunity is not a non-trivial interference. –
  ALSO GOT EXPERT TESTIMONY WHICH ISNT’ NECESSARILY NEEDED
- Cannot reconcile the total ban on succahs (which are temporary) with the co-owners right
  to quiet enjoyment or the fact that they devalue the property – they are temporary and they
  agreed to set up succhas that would be less offensice
- Waiving religious rights? They had no other option but to sign the agreement regarding
  balconies in order to live in building
- Test of sincerity is subjective
- DISSENT:
- Since a religion is a system of beliefs and practices based on certain religious precepts, a
  nexus between the believer’s personal beliefs and the precepts of his or her religion must
  be established. To rely on his or her conscientious objection a claimant must demonstrate:
   (1) the reasonable belief of the existence of a religious precept,
  (2) a sincere belief that the practice dependent on the precept is mandatory (defined
  objectively), and (3) the existence of a conflict between the practice and the rule.
- Must have intention and serious desire to boey the practice
- For balancing ask: (1) Has the purpose of the fundamental right been infringed? (2) If so,
  is this infringement legitimate, taking into account democratic values, public order, and
  the general well-being? A negative answer to the second question would indicate that a
  fundamental right has been violated.
- There are other alternative – not mandatory that they erect their own succhas, can share
  succhas as long as they eat succat
- Also, they block fire routes
- Binnie J focuses on the offer and acceptance of the contract – declaration of co-ownership
                          Constitutional Law – Exam Outline

                           not to set up succhas on communcal balconies

          B. (r.) v. Children’s Aid Society of Metropolitan Toronto (1995)
Facts                  - Jehovah’s witness parent, didn’t want transfusion for baby, Children’s Aid got wardship,
                           administered it and baby lived.
                       - Imposes costs on the daughters health
Issue                  - did they violate the parents s.2(a) fundamental freedom?
Holding
Ratio                 -    are there internal limits?
                          In amselem consistent with BR? In Amselem recognized that there are internal limits, and
                           here they reject that argument and state that all weighing should be done at s.1
                          Internal limits: sincerity, rules out trivial and unsubstantial (Amselem)
                          Once we have established a s.2(a) right, should there be a limit?
                          Should the balancing occur at 2(a) or 1?
                          Amselem – 2(a)
                          BR – 1
                          What is the effect of Amselem on BR? Where does the ending of your right happen? In
                           s.2(a) or s.1? there are certain things that are threshold requirements to require whether
                           you have a right (non-trivial, sincere belief – not internal limits) – once you have a right
                           should it be limited under 2(a) or 1?
                          Internal limits – s.7, s.2(a) and s.2(b)
                          What’s the difference?
                          Open ended language might let you open it up and impose internal limits
                      -    Whether religious freedom protects the parents’ right to make religion-based decisions
                           concerning the care and welfare of their children and, if it does, how far this right extends.
                      -    Always when determining the scope of provisions must be given a liberal interpretation
                           with a view to satisfying its purpose.
                      -    The Act’s purpose in this case is the protection of children – so the purpose of the Act
                           doesn’t infringe the freedom of religion but the effects do.
                      -    Can limit religious practices when they impact on the fundamental rights and freedom of
                           others – protect public safety, order, health or morals or the fundamental freedom of
                           others
                      -    The freedom lmited for the protection of the health and well-bing of Sheena
                      -    Because cannot limit the right itself – against imposing an internal limit – must go to s.1
                           analysis
                      -    Have to demonstrate that Sheena was in need of protection within the meaning of the Act
                           when she was apprehende by Children’s Aid.
                      -    Pressing and substantial objective – state interest in protecting children at risk. The Act
                           allows the state to assume parental rights when a judge has determined that a child is in
                           need of treatment that his parents will not consent to. Far from arbitrary, so the
                           restrictions on parental rights are justified.
                      -    IACOBUCCI – disagrees with LaForest, no s.1 analysis, need an internal limit
                      -    Until the child reaches an age where she can make an independent decision regarding her
                           own religious beliefs, her parents may decide on her religion for her and raise her in
                           accordance with that religion.
                      -    There must be an outer boundary – conduct which lies outside that boundary is not
                           protected by the Charter. That boundary is reached in the circumstances of this case.
                      -    To what extent can an infant’s right to life and health be subordinated to conduct
                           emananting from a parent’s religious convictions?
                      -    Parent’s freedom of religion does not include the imposition upon the child of religious
                          Constitutional Law – Exam Outline

                           practices which threaten the safety, health or life of the child.
                      -    Analogizes – internal limit to s.2(b) – violence, so there can be limts to s.2(a) to protect
                           activity that threatens the physical or psychological well-being of others.
                      -    Freedom of belief is broad but acting upon it is narrow
                      -    Imposing their religious beliefs on her denies Sheena other freedoms, such as conscience,
                           to let her live long enough to decide if she wants tofollow that religion
                      -    Religion encompasses activity that negates conscience
                      -    Not necessary to proceed to s.1 because would mean that refusing treatment to a child on
                           the basis of religion could become a constittuioanlly protected activity.

          Zylberberg v. Sudbury Board of Education (Director) (1988)
Facts               - The Education Act gives the minister of education the power to make regulations
                         governing religious practices in public schools. S.28 states that everyday should begin
                         with reading of scriptures and saying of prayers but also offers an exemption clause for
                         those who don’t belong to the Christian religion.
Issue               - Whether religious exercises, prescribed for the opening or closing of each school day in
                         the public schools of this province?
Holding             -
Ratio               - The right to not express an opinion about religion – kids under pressure, don’t want to
                         stand out, don’t want to make a statement about their religious beliefs – by exercising
                         exemption.
                    - Unclear – make coercion point really closely tied to right to not express an opinion
                    - Is this concern consistent with the purposes identified above?
                     Shouldn’t be coerced to engage in another’s religion/not abandon your own religion
                     Compulsion – compelled to stay in the room and say the lord’s day act
                     Hypo: imagine it doesn’t happen with kids, but with this classroom - exemption
                    - The Board has not exercised the option open to ti of providing non-christian services so it
                         is a violation of s.2(a)
                    - On it’s face it infringes the right, s.28 is antithetical to the Charter objective of promitng
                         freedom of conscience and relisiong. Imposes Christian observances upon non-christians.
                    - The exemption eliminates any suggestion of pressure is not correct since it can be seen as
                         a form of constraitn, compulsion and coercion (assessed from the standpoint of the pupils_
                    - The reality is that it imposes on religious minorities a compulsion to conform to the
                         religious practices of the majority. The appellants chose not to seek an exemption
                         because of concern over being viewed differently and marginalized by other students.
                    - Also, exempting their children compels them to make a religious statement – the effect of
                         which may cause discrimination against religious minorities.
                    - Exemption provision imposes a penalty on pupils from religious minorities who utilize it
                         by stigmatizing them as non-conformists.
                    - Also inconsistent with s.27 of the Charter
                    - S.1 analysis
                    - The purpose of the Act is religious – straight to s.1
                    - The exercises mandated were also religious in nature and the exemption provision
                         validates this
                    - Minimal impairment:
                    - Look to Torotnto Board which demonstrates less intrusive means if imparting educational
                         and moral values – every morning chose selection from a different religion – book of
                         prayers from all around the world and so OCanada and then read selections from that
                         book, affirming and validating multiculturalism and tolerance
                    - DISSENT
                    Constitutional Law – Exam Outline

                -    A matter of freedom of conscience: is the state created opportunity to participate in or
                     facilitation of any religious activity an unconstitutional purpseo?
                -    S.2(a) of the Charter does not prohibit all governmental aid to or advancement of religion
                     per so
                -    Is the effect unconstituitional because it pressures children to participate exclusively in
                     Christian exercises?
                -    May be harmful but the evidence is clear that students are regularly excused from class fr
                     a variety of reasons and it has not been suggested that this differentiates them from the
                     majority
                -    As a multicultural society we are trying to encourage young children to be proud of their
                     ethnic heritage and respective religious idenitites.
                -

CONCLUSIONS
        - WHAT COUNTS AAS RELIGION
        - WHAT IS PROTECTED UNDER 2(A)
        - RELATIONSHIP B/W PURPOSES AND DOCTRINES
        - MOTIVE/PURPOSE – NOT AN ARBITER OF DOGMA, NOT ACINTG
          INTRUSIVELY
                          Constitutional Law – Exam Outline

INTERACTIONS BETWEEN CONSTITUTIONALLY PROTECTED RIGHTS
PUBLIC FUNDING OF RELIGIOUS SCHOOLS
        - Societe des Acadies
        - Mahe’
        - Recap:
        - Amselem case – non-exhaustive list of attributes as what counts as religion
        - What’s included? What’s excluded? Does it avoid the basic problems enunciated.
        - Attributes are satisfied by any mainstream religious belief – what happens when you have
           one that doesn’t satisfy them. Imagine someone claiming a belief, that doesn’t fit in with
           the list. Court abritratrily getting involved with what is and what isnn’t religion and
           problem that minority groups with divergent views of what religion is get excluded.
        - In Amselem uses the adjective typically which signals that it si not an exhaustive list and
           so attributes can be added that aren’t on the list presently. \also don’t have to satisfy all
           the features to be a religion and if that is a case, then might define some things as religion
           that ppl don’t consider to be religion. Ex: oprah fans, if you don’t have to satisfy all
           things then might capture some things that people wouldn’t reasonably consider to be a
           religion.
        - Can the court avoid engaging in defining religion?
        - What is protected? Sincere beleiefs and undertakings/practices. Consistent with the
           overall purposes of this area of law. Try to avoid being intrusive and determining what is
           religion.
        - But, give equal value and credence to ppl who belong a well-established religion and
           those who have freakish, religious beliefs.
        - Difference of beliefs within own religion
        - Hold a belief and engage in a practice does that require protection? Does that match out
           intuitions about religious practice?
        - What counts as a vilation under s.2(a)?
         A non-trivial state-imposed burden (Edwards book,general applicable tax to religious
           artifacts) that
         Compels religious practice – practice the Lords Day
         Prevents religious practice – privdes incentive to not honor the Saturday Sabbath and
           Amselem.
        - What else counts as a vilation under s.2(a)?
         State compulsion to make a statement about religious belief? Zyllerberg, court says that
           even though there is an exemption provided, the fact that you have to exercise your belief
           uts you in a position where you have to make a statement about your beliefs. Analysis
           heavily dependent on the effects of the Act on the school children – who are generally
           susceptible to peer pressures.
         When you make a statement about religious belief, you are not being compelled to
           engage in one or being prevented from practicing your own.
         State is forcing you to make a statement – s.2(b) claim?
         Is this inextricably linked to the other compulsion right? The potential repercussions that
           fall from it make it fall under s.2(s) not 2(b). Context-sensitive

             Pull apart whether state compulsion to make a statement is necessarily linked to
              compulsion to engage in a practice or a free standing thing – 2(a) claim?
             Failure of the state to act impartially? Big M, favoring one religion over another.
            - Internal limits or how broadly should we read amselem – language open ended and
              suggests that maybe there are internal limits “not every action will receive automatic
              protection because must always take the rights of others into account, and don’t allow
                           Constitutional Law – Exam Outline

                 them to do absolutely anyhting” – might have internal limits. But maybe just saying that
                 rights are subject to s.1
                Tirival/insubstantial – only goes as to whether you have the rights at all not an interal
                 limit which is that you have the rights but limited because of rights of someone else.
            -    What is the content of freedom of conscience?
                Atleast some circumstances in which it works – making claim does not himself have to
                 believe anything religious, think about Big M, someone’s freedom of conscience is
                 violated if they are compelled to engage in a religious practice that they don’t hold (the
                 atheist has his autonomy violated) someone who does not themselves hold a religious
                 belief are there any other circumstances under which they can make a claim?
                 Conscientious objectives? Atheist gets 2(a) protections if they are compelled to engage
                 in someone else’s beliefs.
                Under the compulsion cases – apply to: religious believers (being frced to abandon and
                 engage in) and atheists (not being forced to abandon his beliefs and engage in someon
                 elses he is just being compeeled to engage in other’s religion – 2(a)

TODAY
            -    CONSIDER WHAT COUNTS AS TRIVIAL OR INSUBSTANTIAL BURDEN
            -    CONSIDER CONSTITUTIONALLY IMPOSED LIMITS ON WHAT COUNTS AS A
                 VIOLATION OF S.2(A)
            -    TESTING THE OUTER LIMITS OF CONSTITUTIONAL RULES
            -    INTERPRETING THE CONSITUTIONS ACTS IN LIGHT OF ONE ANOTHER?

              - R V. JONES – trivial and insubstantial burden:
Appellant, the pastor of a fundamentalist church, educated his three children and others in a schooling
program operating in the church basement. He refused to send his children to public school as required by
s. 142(1) of the Alberta School Act. He also refused to seek an exemption under s. 143(1)(a) and (e),
excusing a pupil from attending a school over which a board has control if (1) a Department of Education
inspector or a Superintendent of Schools certifies that he is receiving efficient instruction at home or
elsewhere, or (2) he is attending a private school approved by the Department of Education. As a
consequence, he was charged with three counts of truancy under s. 180(1) of the School Act. In Provincial
Court, appellant invoked ss. 2(a) and 7 of the Canadian Charter of Rights and Freedoms and maintained that
the requirement in s. 142(1) of the Act, or even the requirement that he apply for an exemption pursuant to
s. 143(1), contravened his religious beliefs that God, rather than the Government, had the final authority
over the education of his children, and deprived him of his liberty to educate his children as he pleased
contrary to the principles of fundamental justice. The trial judge concluded that s. 2(a) of the Charter did not
apply, but upheld the defence based on s. 7. He held that since proof of efficient instruction was solely by
means of a certificate issued by the school authorities, this would prevent the appellant from making a full
answer and defence by bringing all evidence relevant to the issue before the court. The Court of Appeal
reversed the judgment and entered convictions against the appellant on all three counts.\
               Legislation acknowledges that can educate outside of a school but must be certified – he
                  claims that it his god given right to educate his children and not the state and so he doesn’t
                  have to seek out certification. Doens’t want to apply, doesn’t want to submit to the
                  authority of the state by seeking out their authority/approval – if they come to him then it
                  is fine but not that he seeks them out.

Although the effect of the School Act constitutes some interference with appellant's freedom of religion, the
impugned provisions of the Act do not offend s. 2(a) of the Charter. The Act, which was enacted to regulate
the education of young people in the Alberta schools, does not give the government absolute control over
                            Constitutional Law – Exam Outline

the education of children. A child is not forced, under the Act, to attend a school over which a board has
control. Section 143(1) provides alternatives and allows for instruction at home or elsewhere, so long as
that instruction is certified to be efficient. Appellant also had the right, under this section, to seek the
registration of his academy as a private school. Considering the compelling interest of the province in the
"efficient instruction" of the young, a requirement that a person who gives instruction at home or
elsewhere have that instruction certified as being sufficient is demonstrably justified in a free and
democratic society. Such a requirement constitutes a reasonable limit on a parent's religious convictions
concerning the upbringing of his children. So is a subsidiary requirement that those wishing to give such
instruction apply to the appropriate authorities for certification that the instruction given complies with
provincial standards of efficiency.
               What’s the measure of a trivial or insubstantial burden?
               Compare to mr.jones’ case with the Edward books hypo
               Here, extremely formalistic and technical violation – no purpose, just an effect, just asking
                  him to go through the regulatory body not asking hom not to practice or compel him to
                  change practices. But, still doesn’t address that he doesn’t want to acknowledge state as
                  authority. Really important state educational objective, his ability to educate his children is
                  all accepted and reflected in the legislation but the appliaiton is burdensome – integrity of
                  educational system, not adhering to certain standards.
               Threshold issue
               Legislation that applies to everyone equally – general application so if there is general
                  application then it is trivial and insubstantial because no big deal, insignificant to the wider
                  public even though ppl holding the belief think it is really important. The individuals belief
                  cannot be the measure – trivial and insubstantial if it is a generally applicable and on some
                  sort of objective standard not burdensome (insignificant) even though the individual thinks
                  its really really important.
               What’s the measure:
                  1. Generally applicable
                  2. Objectively minor or insignificant – measured by wider larger public, not a serious
                       imposition on them – here, overall objectives are respected by the law this is just minro
                       – can still educate children with religious beliefs – consider also: relationship between
                       the practice and the larger religious goals, i.e. minor also to spiritual objectives that
                       you are set out to achieve. Not that significant to the pursuit of his objectives – allow
                       him to do it. he concedes that if the state were to come and supervise him then no
                       big deal – overall objective is that he wants to educate kids under the authority of
                       god.
                  3. Even if its important to claimant
              - But aren’t we supposed to be protecting the minority rights?

NOW THINK ABOUT:
         - AMSELEM’S conception of sincerity
         - Should religious belief be treated any differently than deeply held secular beliefs?
          Here, it is not that his beliefs are those of all in his religion – and he is making a claim –
             deeply held idiosyncratic and individual belief and gets claim for protection
          Loops back to freedom of conscience – atheists get protection – given the wide definition
             of religion and completely idiosyncratic to include wackos, why doesn’t it apply to all
             beliefs, or does it?
                             Constitutional Law – Exam Outline

                 Havereally open ended definitions of what constitutes religion – and one case of atheist
                  protection - should the case law be extended to protect the non-religious bleieveers?
                  Conscientious objectors who belive in wrld peace.
DISSENT - The appellant has failed to show any substantial impact of the legislation on his belief that God
and not the State is the true source of authority over the education of his children. While the Act makes no
express reference to divine authority, it defers to parental authority by allowing home instruction and
instruction in private schools, thereby accommodating the State purpose to the preferences of individual
parents. It defers to beliefs such as the appellant's and recognizes the very values for which he contends. If
the statutory machinery for obtaining exemption for his children from mandatory school attendance has
any impact at all on the appellant's freedom of conscience and religion, such an impact is extremely
formalistic and technical and does not give rise to a violation of s. 2(a) of the Charter. Legislative or
administrative action whose effect on religion is trivial or insubstantial is not a breach of freedom of
religion.

            -    S.93 – gives the provinces jurisdiction with eduction but subsections 2,3, and 4 limit that
                 power with regards to certain denominiational schools – necessary to bring about
                 confederation
            -    Was decision to extend it to highschools violation? Regardless of whether s.93(1)
                 guarantees secondary school funding to the separate schools, s.93(3) specifically
                 empowers the provincial government to grant new rights and privileges to separate or
                 dissentient schools and that the exercise of this power could not be seens as a violation of
                 the Charter.
            -    S.29 – validates this exception and provides greater certainty
            -    Prvicnes legislate under plenary power in relation to denominational, serperate or
                 dissentient schools

             Adler v. Ontario (1996)
Facts                   - Appeal regarding the current education scheme in Ontarion which doesn’t provide
                            funding for independent religious schools – even though it funds public and separate
                            schools.
                        - Vilation of freedom of religion and equality rights.
Issue
Holding
Ratio                    -   IACOBUCCI:
                         -   Look at s.93 – grants the provinces the power to legislation with regard to education
                             which is granted subject to certain conditions, s.93(1) which provides that no law may
                             prejudicially affect any right or privilege with respect to denominational schools which
                             any class of persons had at the time of Union (RC in Ontarion and Prot in Quebec- were
                             minorities at the time and so offered protection to ensure the Union)
                         - Claim with regards to s.2(a)
                        S.93 doesn’t represent a guarantee of fundamental freedoms it is a comprehensive code with
                         respect to denominations school rights and s.2(a) can’t be used to enlarge it. cannot hold one
                         section to be violative of another (s.93 v. s. 93(1) )
                         - Claim with regards to s.15:
                        RC schools – funding protected by Charter
                        Public schools – an integral part of the s.93 scheme. Legislating pursuant to the plenary
                         power granted to them at the time of confederation. Implied power – because when defining
                         the rights of RC schools at the time of Confederation, they compared them to common schools
                         thereby impliedly contemplaintg and implicating protection.
     Constitutional Law – Exam Outline

   Public schools not entrenched but the plenary power to legislate with regards to schools open
    to all is constitutionally entrenched – can regulate however it sees fit. Not lmited to regulating
    with regards to these 2 school systems, they have the ability to fund independent
    denominiational schools but having an ability doesn’t equate having an obligation
   There existence is immune from charte scrutiny but if the government goes beyond the
    condines of this mandate then can enforce a charter challenge.
    - SOPINKA
    - Freedom of religion:
   Denial amounts to an economic burden which results in infringement of religion and denial of
    equalty.
   Tries to analogize to Edwards books but here all of the diverse religious groups represented by
    the appellants and the interveners suffer the same economic const associated with sending
    their children to private religious schools. The distinction with RCs is constitutionally
    mandated. The legislation is not the source of any distinction amongst all the groups who
    exercise of their religious freedom involves an economic cost.
   There is no restriction on religious schooling – can choose to if they want but doesn’t mean
    that the government has to fund it especially since there are many other sphere of government
    action which hold religious significance for seom that they don’t fund because would be
    untenable – it is just a natural cost of the religious beliefs held
    - S.15 equality:
   Claims an adverse effecs discrimination but not an effect arising from statute because they
    don’t accept the schools due to their secular nature which is mandated by the charter
   They can’t take advantage of the system but not because of the Education Act it is due to a
    combination of the appellant’s religious beliefs and the imperatives of the charter as they
    apply to the exercise of the plenary power over education
   No private schools receive funding whether they are religious or secular – no religious system
    is given preferential treatment – the distinction between private and public is not an
    enumerated or analogous ground.
    - MCLACHLIN:
    - S. 93?
   Doens’t oust the operation of the charter because in order to exercise the plenary power must
    comply with the restriction regarding RCs.
    - S.2(a)?
   Distinguishes from Edwards books and Big M which were cases imposing a state prohibition
    that put minority religious follower at a disadvantage in gaining a livelihood
   Here, there is no state prohibiotn on otherwise lawful conduct, people can educate children
    however they want,provided they meet the standards. May ipose costs on parents.
   Also, the sort of absence of benefit complained of has no history of recognition as a violation
    of freedom of religion. Never been seen as religious persecution. Never has one been entitled
    to state support for religion.
    - S.15?
   This guarantee means that Ontario may not enact an education law which deprives some
    people of benefits which others receive on the ground of their religion – exclusion is RC
   Doesn’t consider those who by religious conviction cannot send their children to secular
    schools – public educate is inaccessible so there is differential treatment
   They try to claim that it is not governmental action but choice of a religion which causes
    them to reject secular schools – can never blame a person for a choice tey make or deny them
    seomthing because of it they are always entitled to the benefit regardless of the choice
   Also, there is a rela and substnatital burden placed on them
    - S.1?
                          Constitutional Law – Exam Outline

                      Pressing and substantial objective?
                        Foster a strong public secular school system attended by students of all cultural and
                           religious groups which increases tolerance and harmony in a multi-cultural and mutli
                           religious society
                   Proportionality:
                        Rational conncetion – by providing fnding to secular schools and allowing parents to send
                           their kids there free of cost the government encourages people to send their kids there and
                           learn together if provided funding to independent schools then parents would send their
                           kids there and instead of a united and tolerant society would create a segregated and
                           homogenized society. Would diminish children’s exposeure to multiculturalism. For this
                           don’t need scientific evidence, common sense is ok, as long as decision is not arbitrary,
                           unfair or based on irrational considerations.
                        Minimal impairment – where social issues are at stake, courts approach the legisltaure’s
                           decision as to what infringement is required to achieve the desired end with considerable
                           deference. It is not difficult to conjure up hypothetical solutions which might infringe the
                           right in question less that the solution chose by the legislature. This alone is insufficient
                           to allow the courts to declare that the legislautre’s solution violates the chater. As long as
                           the measure falls within a range of acceptable solutions to the problem, it will pass the test
                           and common sene is the guide again. here don’ know the effects that partial funding
                           would have so it is a reasonable limit.
                        Salutary v deleterious – charter permits the limitation of rights provided the effect is
                           proportionate to the objective the state asserts. Is the effect of the limitation proportionate
                           to the state objective? Fostering tolerance is of great importance weighed against
                           economic burden imposed on parent, denial of funding doesn’t strike the freedom of
                           religion and denial of funding doesn’t compe anyone to violate religious beliefs if the act
                           compelled attendance in secular schools then there would be a violation
                       - DISSENT:
                       - No deference since the non-recognition of the small religious minoritites attempting to
                           survive in a large secular society strikes at the heart of s.15. the Education Act sends the
                           message that their views/beliefs are less worthy of recognition and are not granted dignity.
                           The denial impacts on an interest which is essential to the survival of their communities
                           and practices. Also, 5 other prvinces in Canada give partial funding and there the student
                           body decreased by 3-6 percent only which isn’t substantial enough to warrant a total ban
                           on funding. Would futher the objective of creating a universally accessible education
                           system and promote the value of religious beliefs and tolerance.
LESSONS FROM ADLER
         - S.93 constitutes a comprehensive code- can’t use another part of the constitution to
             enlarge the protections that are avaialbe under s.93
         - No one part of the constitution can be violative of the other –can’t use 2(a) to expand s.93
             because it is a comprehensive code and allowing that would be to violate it.
         - Is the majority’s construction of s.93 the right one?
      Protestant and catholics get funding
      If someone makes a s.2(a) claim how does that violate s.93? it is extremely offensive but 2
         types of interpretive ooptions and all s.93 does is guarantee funding to 2 minority religious
         groups and can extend those protection without violating that minimal guarantee – only
         provides a minimum and can go above that for other people.
         - If not, is there a s.2(a) burden?
      Can’t get benefit because of their religious beliefs – standard 15 claim – benefit to some and
         not to tohers
                          Constitutional Law – Exam Outline

        General point as what counts as a burden under s.2(a) – compelld to engage, being prevented
         from engaging in own, and the only way to get a 2(a) burden is through state impartiality –
         expressing preference for one over another and can’t get the burden because the preference is
         constitutionally entrenched! No part of the constitution can be violative of another. Can;t
         make a claim on the basis of something that is constitutionally authorized. No compulsion,
         no burden just differential treatment.
         - What is the proper interpretive relationship between the constitution acts?
       Have to read the constitution act in light of one another and tr y to minimize the situations
         under which there is a conflict between the 2, render them consistent with one another – here,
         talks about nthe original purposes. Argument about historical compact in 1867 and what it
         does.
CONCLUSIONS
THE MEASURE OF TRIVIAL OR INSUBSTNATIAL BURDENS
THE LIMITS OF STATE OBLIGATIONS UNDER S2(A) – AROUND DEF OF RELIGION AND
SINCERITY
RELATIONSHIP B/W THE CONSTITUTION ACTS – SHOULD BE INTERPRETED IN A WAY
THAT RENDERS THEM CONSISTENT

INTERACTIONS BETWEEN THE CHARTER AND FEDERALISM

LANGUAGE RIGHTS AND NOTWITHSTANDING CLAUSE
        - SCHACHTER AND LITTLE SISTERS
        - Recap: what counts as a trivial burden on the Freedom of Religion or What’s the Reach
             of Justice Wilson’s Reasoning in Jones.
        - Jones – looks at the specific example of Jones refusal to apply for certification and it is
             trivial because extrememly formalistic
        - Edwards Books, Jones analyissi – common to both reasonaings:
             1. Regulation in question in both cases it is GENERALLY APPLICABLE – not
                  targeted at any particular religious group
             2. Objectively viewed, outseid the religion, a minor burden (not a big deal to pay tax or
                  apply for certification)
      Jones adds to Edwards Books, Mr. Jones, really thinks it is important to him – assumed that it
        is a minor burden to everyone including those who are subject to the religious beliefs – no
        religious interests in avoiding a minor sales tax but Jones really thinks it’s important to not be
        subject to requirement that he seek approval – IN ADDITION TO MEASURE BE
        GENERALLY APPLICABLE AND OBJECTIVELY MINIMAL AND THAT IT
        CAPTURES PRACTICES THAT ARE IMPORTANT TO A BELIVER THE RELIGIOUS
        PRACTICE THAT IS BURDENED IS NOT CENTRAL TO THE RELIGIOUS BELIEFS
        OF THE BELIEVER – getting excpetion because State is allowing them to educate, but this
        is just one piece with which they recognize autonomy.
     Restatement:
     1. General applicability (EB + Jones)
     2. Objectively trivial (EB + Jones)
     3. Even if important to beliver (Jones)
     4. Trivial and insubstantial if the practice is not tangential to religious goals (Jones)
        - Should courts extend the broad reasoning in Amselem to protect purely secular practices?
      Broad defeiniton of what counts as religion, what should be protected – just have to sincerely
        believe and knw from jones that it can be idiosyncratic – debatable within the broader
        religious authority – honest and sincere
      Freedom of conscience – conscientious, non-religious, protected ???
                           Constitutional Law – Exam Outline

           Amselem – really broad defeiniton of religion, also religion defined as sincerely believed in
            practice (sincerity), if read together with Jones can infer that get protections even if the
            practice / belief is totally idiosyncratic (features of the religion) – then you can be the only
            person who believes in this stuff. Protection should be extended. – conscientious objector is
            an example – don’t want to be a soldier?? Amish get protection, crazy people get protection,
            3 rd category is a purely secular person who doesn’t believe in violence
           How do we interpret the constitution acts in light of one another? Adler, s.93 constistuet a
            comprehensive code (with respect to religious education) and can’t use 2(a) to expand that –
            can’t use one to override the other (violative) – when the state expresses partiality for one
            thing over another but it is codified then it is alright
           What does it mean for one provision of the constutiton to be violative of another?
             All that s.93 requires is that catholic and minority schools get protection – silentist as to
                whether or not other religious schools can get protection – so why can’t you raise a s.2(a)
                claim? Wilson says, not a right claim for the Adler, it is idiosyncratic, not generally
                recognized in the case law – not the kind of right that we generally see which is a
                prohibiton on practice – doesn`t fit within the normal facts of a 2(a) case then don`t
                extend protection – positive rights and positive entitlements – charter should be used to
                give charter rights to individuals – novelty of claim limits extending 2(a) protection

            -    IDENTIFY WHAT THE LANGUAGE RIGHTS PROVISIONS REQUIRE OF
                 GOVENRMENTS- WHAT DO THEY HAVE TO DO
            -    IDENTIFY THE REQUIREMENETS OF THE NOTWITHSTANDING CLAUSE
            -    CONSIDER THE COMMONALITIES BETWEEN FEDERALISM AND RIGHTS
                 PROVISION
            -    CLOSE TEXTUAL ANALYSIS OF CONSTITUTIONAL PROVISIONS
            -    INTERPRETING COLLECTIVE AND POSITIVE RIGHTS
            -
Societe des Acadiens v. Association des Parents (1986)

FACTS: PLs wanted French immersions in English schools that had French speaking students. Also,
wanted to have a bilingual judge since some of the evidence was going to be presented in French.
Deciding whether s.19(2) of the Charter entitles a party to be heard by a court whose members can
understand the evidence brought forth regardless of the language used.

RATIO:
S.19(2): either English ofr French may be used by any person in, or in any pleadinf in or process
issuing from, any court of New Brunswick – what does this entitle a claimant to?
Main focus: why interpreted narrowly? Political issues – if the entire document is the result of
negotiation then why should these rights be more compromised than any other. If they wanted to put in a
right to be understood they would have.
Orginalist argument
Textualist argument
The only right you have is the right to express yourself in whatever language you want

Why broadly? – onerous task of the judiciary because veryone bilingual
Legal rights – right to an interpreter – specifically carved out protection for an official group 19(2) – gets
you only what any other speaker would get – all you are getting is an interpreter so get the protection
under the legal rights to a fair trial so why do you deserve the specific protection? It is redundant.
                           Constitutional Law – Exam Outline

What effect do Mahe and Bilodeau have on Acadiens?
Political compromise vs legal rights
Mahe – gives a wide open interpretation to s.23. authority subsequent, Beaulac undercuts the argument
and Mahe moves in the opposite direction.
Should s.19(2) be interpreted narrowly? Part of rationale removed, then what is left? What is it going to
cost us? But cannot be determinative in the language rights argument because language rights will always
impose costs – cannot rule out any particular interpretation. Cost argument plus the textual arguments
with other provisions of the constitution regarding language rights and what is afforded.
Refinements of this rule in Mahe’ and Beaulac – might be able to challenge the ruling by making an
affirmative argument as to why it should be interpreted broadly.

The principles of natural justice as well as s. 13(1) of the Official Languages of New Brunswick Act entitle a
party pleading in a court of New Brunswick to be heard by a court, the member or members of which are
capable by any reasonable means of understanding the proceedings, the evidence and the arguments,
written and oral, regardless of the official language used by the parties. But no such entitlement can be
derived from s. 19(2) of the Canadian Charter of Rights and Freedoms. The rights guaranteed by s. 19(2)
with respect to the courts of New Brunswick are of the same nature and scope as those guaranteed by s.
133 of the Constitution Act, 1867 with respect to the courts of Canada and the courts of Quebec. The
language of s. 19 was clearly and deliberately borrowed from s. 133 and should be similarly construed.
These rights are essentially language rights unrelated to and not to be confused with the requirements of
natural justice. They vest in the speaker or in the writer or issuer of court processes and give the speaker or
the writer the constitutionally protected power to speak or to write in the official language of his choice. But
there is no language guarantee, either under s. 133 of the Constitution Act, 1867 or s. 19 of the Charter, that
the speaker will be heard or understood, or that he has the right to be heard or understood in the language
of his choice.

Mahe v. Alberta (1990)

FACTS: large population of children whose first language is still French. There were programs instituted in
Roman Catholic School that accommodated this but now PL seeking an order that there are sufficient
numbers of students to warrant publicly funded French schools and that according to .23 french speaking
parents have a right to have their children educated in facilities equal to English speaking parents.

RATIO:
s.23(3)
(a) numbers warrant
(b) Minority language educational facilities
s.23.1 – talks about the language spoken and still understood by the parent
s.23.2 – language of a sibling
get the benefits of s.23(3) if the requirements are satisfied

why the numbers warrant provision?
          - Cost argument – single isolated child, likely not going to get protection
          - Need other people to be around – cultural benefits of language rights – they are
             collective goods/benefit – and education works best when you are talking in groups. It’s
             goods are best effectuated in a context when you can exchange ideas and be engaged.
          - Linguisitic and language rights are collective
                           Constitutional Law – Exam Outline

Does that distinguish s.23 and s.19?
            - Departure from societe, bilodeau expressly says there is a departure bc political
                compromise rationale doesn’t survive
            - Do courts serve the same functions that courts do? And is the difference in function
                enough to account for a different interpretation? Schools as cultural centres versus
                courtroom experience, maybe narrow interpretation in Soceite (narrow) is because the
                courts don’t serve the same linguistic function that schools do – doesn’t imply that
                Mahe (broad) overturns the approach because maybe there is a difference in schools
                and courts
            - Beaulac – courts versus schools, overturns the underlying rationale of soceiete when
                talks about polticial compromise not being read narrowly
            - What is the status of soceite in light of subsequent case law? Distinguishing the cases in
                basis of different subject matters, cultures preserved through schools and courts don’t
                serve that same function

What is the textual basis for the sliding scale argument?
            - Court says that language of section when it ttalks about instruction (minimum) and
                school board (maximum) – sliding scale because rights slide along scale depending on
                numbers warrant
            - Base of the sliding scale argument is the difference between instruction and facilities
                and implicit in the idea of instruction is that you are gong to have facilities (mean school
                boards) – broad interpretation of s.23.
            - Take away from these cases – the striking difference in results when you adopt a narrow
                (right to speak in own language which seesm to be indistinguishable from the rights of
                any other language group) versus borad (can get stuff like school boards out of the word
                facilities, cultural communities, needed for survivial, control and management)

 The general purpose of s. 23 of the Charter is to preserve and promote the two official languages of
Canada, and their respective cultures, by ensuring that each language flourishes, as far as possible, in
provinces where it is not spoken by the majority of the population. The section aims at achieving this goal
by granting minority language educational rights to minority language parents throughout Canada. Section
23 is also designed to correct, on a national scale, the progressive erosion of minority official language
groups and to give effect to the concept of the `equal partnership' of the two official language groups in the
context of education. In order to fulfil the purpose of s. 23, the section should be viewed as providing a
general right to minority language instruction with paras. (a) and (b) of subs. (3) qualifying this general
right. Section 23 encompasses a "sliding scale" of requirements, this approach guarantees whatever type
and level of rights and services is appropriate under s. 23 in order to provide minority language instruction
for the particular number of students involved. Where the numbers warrant, s. 23 confers upon minority
language parents a right to management and control over the educational facilities in which their children
are taught. what is essential to satisfy that purpose is that the minority language group have control over
those aspects of education which pertain to or have an effect upon their language and culture. So, where
the number of s. 23 students does not warrant granting an independent school board (the maximum level
of management and control), but is significant enough to warrant moving towards the upper level of the
sliding scale, it may be sufficient to require linguistic minority representation on an existing school board.
Where the above degree of management is warranted, the quality of education provided to the minority
language group should in principle be on a basis of reasonable equality with the majority, although it need
not be identical, and public funding adequate for this purpose must be provided. There are sufficient
numbers of s. 23 students in the Edmonton area to justify, in both pedagogical and financial terms, the
                          Constitutional Law – Exam Outline

creation of an independent school, such as the one presently existing as well as providing for a continuing
course of primary and secondary schooling. The numbers of students likely to attend Francophone schools
in Edmonton, however, are insufficient to mandate under s. 23 the establishment of an independent
Francophone school board. Accordingly, the minority language parents should enjoy the right to
representation on the separate school board and the degree of management and control as specified above
(representation on Board, equal education, and right to make decisions regarding expenditures). As these
rights are not provided at the present time, the Province must enact legislation (and regulations, if
necessary) that in all respects is consistent with the provisions of s. 23 of the Charter.

            Ford v. Quebec (1988)
Facts                 - Challenge to the provisions of quebec Charter of the French Language erquiring French-
                          only signs, posters etc in public.
Issue
Holding
Ratio                   - S.33:
                       Limited application
                       Express declaration
                       Sunset clause – requires that the government re-initiate legislation after 5 yrs
                         requires deliberation on the part of the legislature when it invokes this section. Limited
                            application because there are certain rights (democratic rights,, s.3) because will put itself
                            in self-conflict, overriding the things that apply specifically to them – language rights not
                            covered either because of the burdens imposed (positive entitlements) and given the
                            history in Canada cannot leave these things open to the legislative override, and mobility
                            rights because governments shouldnt’ control the agenda of other govnerments.
                        - The role of the political branches in interpreting the constitution
                        - The righs issue and the justification for infringement in the Ford case – do not get same
                            protection in quebec regarding 2(b) because invoke s.33 – allows government to set own
                            agenda
                        - Restricts languages other than French to be used in public places to preserve
                            quebec’s identity in the midst of angl pressures – fails minimal impairment because a
                            total ban.
                       2(b) violation but the objective that is sought is purely federalist – quebec preserving it’s
                        unique cultural identity. Brings together the rationales for federalism and rights protection.
                        - The limits of that role
                        - Asked to review the exercise of the s.33 use
                        - S.33(1) and s.33(2) – the words contained in these provisions indicate that in order to be
                            valid a declaration pursuant to s.33 must specify the particular provision within a section
                            of the Charter which Parliament or the legislature of a province intends to override. The
                            specific guaranteed right or freedom to be overridden must be referred because the nature
                            fo the guaranteed right/freedom must be sufficiently drawn to the attention of the
                            members of the legislature and of the public so that the relative seriousness of what is
                            proposed may be perceived and reacted to through the democratic process
                        - BUT there is no warrant in the terms of s.33 for such a requirement. A legislature may
                            not be in a position to judge with any degree of certainty what provisions of the Canadian
                            Charter of Rights and Freedoms might be successfully invoked against various aspects of
                            the Act in question. Fo this reason it must be permitted in a particular case to override
                            more than one provision of the Charter and indeed all of the provisions which it is
                            permitted to override in terms of s.33.
                        - The essential requirement of form laid down by s.33 is that the override declaration must
                            be an express declaration that an Act or a provision of an Act shall operate
                             Constitutional Law – Exam Outline

                              notwithsthanding a provision included in s.2 or ss.7-15.
                         -    A reference to the number of the section, subsenction or paragraph to be overridden is a
                              suffieint indication – it cannot be intended by the word “expressly” that a legislature
                              should be required to encumber a s.33 declaration by stating the provision or provisions to
                              be overridden in the words of the Charter.
                         -    S.33(1) – interpreted so to permit a prospective derogation only.

LANGUAGE RIGHTS AND SPECIFICITY
TEXTUAL INTERPRETATION
THE LOGIC OF S.33 AND OVERLAPS WITH FEDERALISM

CONSTITUTIONAL REMEDIES
RECAP
        - Language rights and participatory goods
       What is the point? Give rise to participatory goods, the benefits typically only arise for
        groups and collectivities, Mahe- benefit from edu arises because interact with people in
        groups – cultural benefits of linguistic schools. (numbers warrant)
        - Interpretive approaches to language right
       Interpreting const act 1867 and 1982 together – societe case the SCC talked about political
        compromise rights (making appleas to oringial intentions of drafters like Adler with ref to
        s.93). the appeal to the original inteiont results in a restrictive application – rights under s.19
        are protected if you can merely express yousrself in your own language in a court room.
        - Reading acadiens in light of beaulac and mahe
       Beaulac, in obiter more or less overrides the compromise rights arguments from Acadiens, to
        the extent that Acadiens can be understood to rest on the argument that read it narrowly
        should be overriden .... in Mahe’ read s.23 broadly, so what is left? Should it be read
        narrowly at all?
        - Distinguihshing 19(2) from 23
       Rights under s.23 differnt from 19(2)
       23 – schools do serve as cultural centres, communities practice values and culture
       19(2) – do courts serve same function? Courts aren’t reproducing culture – Beaulac and
        Mahe removed the historical compromise rationale from the Acadiens
       Unclear what specific protections you get under s.19 – comes under heading “official
        language” and all you get is as a minority language member, what everyone else gets, an
        interpreter, because of standard due process – then what is the difference between the official
        languages and all other languages? Take out the historical compromise right and argue this
        (that treatment doesn’t differ). schools are not identical to courts which are the pubic face of
        the Canadian state – the purpose of language rights is to make minorities feel like they are
        represented in any part of Canada – courts however should still have judges that are bilingual
        because minorities should be able to enter into a courtroom and feel a sense of belonging
       Narrow – just interpreter, for due process protections
       Broad – get bilingual judge
        - The right ant objective in Ford
       Decided as s.2(b) case, finds that they extend to language – also protects the language of
        expression. Pprohibiotn on choice of language. Objective in ford, that offered is the
        protection of French quebec culture – fails under minimal impairment
       Classic federalism argument – means of protecting provincial culture – this case shows up in
        a defence under s.1
        - S.33 – public deliberation when decides to override charter rights. By requiring
            legislatures to make express statements when invoking s.33 and then requiring them to
                         Constitutional Law – Exam Outline

                re-enact expressly every 5 yrs, the Charter requires legislatures to make their decisions
                public and no one can go more than 5 yrs without an election (sunset clause) – so any
                invocations of the notiwihtstanding clause puts it before the provincial electorate at least
                once.
           - Better rule? Invoke s.33 in response to a judicial decision finding that a specific
                legislation is unconstitutional (puts courts and legislatures in real dialogue – w/o leg can
                exert pure political will however wants)
           - The role of political actors in interpreting the constitution
          Odd that legislature can override what is supposed to be a constitutional foundational
           document.
           - The limits of that role and judicial reasoning
          Also, don’t need a court to invalidate decision before the legislature decides to override it.
           - Final overlap
          Talked about veto/power of disallowance – federal over provincial legislation – up until mid
           1880s, live debate about whether the courts should engage in superoivsion of charter or
           whether the disallowance was sufficient – s.33, allows the kind of political power/freedom
           that disallowance allowed, political branch in s.33 can more or less exercise it’s will
           unilaterally, not in response to any finding of constitutional invalidity – can just invoke it –
           kind of like disallowance, fed government can just disallow certain provincial provisions –
           interesting? Disallowance is never invoked, because understood to be by and large
           illegitimate, just like s.33 and only extremely rarely outside quebec. So political actors have
           this power but political culture prevents them from using it.
          S.33 – compromise that allowed for the Charter to come in being – got quebec to ratify it/led
           to patriation adn not excised because the amending formula is so stringent impossible to get
           the constitution and charter amended

TODAY
IDENTIFY THE RANGE OF CONST REMEDIES
IDENTIFY CONDITIONS WHEN THEY APPLY
APPLICATION OF RULES IN LIGHT OF POLICY CONSIDERATIONS
COMBINING RULES

CONCENRS UNDERLYING CONSTITTUIONAL REMEDIES
       - Institutional competenece
      There might be situations at the remedial stage, may not give courts enough powers to
       supervise the Chrter, may deprive them of tools to protect the Charter
       - The charter’s purposes – read in vs nullification, there are certain cirumctnaces where
           people benenfit from leg in ways that are consistent with the general purposes of the
           Charter (underprivileged women) and so if remove underlinclusive leg might remove
           those purposes
       - Legitimate expectations – those who benefit and would be deprived of them if the courts
           brought the hammer and strck down the entire legislation

           -  Section 52(1) remedies:
              1. Striking down – court takes provision/act and knocks it down
              2. Reading in – assumption is that legislature has excluded something it should ahve
                   included. Read in when they think that a statute wrongly excludes something
          When to use it? when it is do-able. When the group that they are reading in for is smaller.
           Desirable because then doens’t have to waste time of the Leg (no undue intrusions – no
           imposition of costs – wasting legislative resources).
                  Constitutional Law – Exam Outline

    Also circumstances when legislation benefits particular groups that charter protects and if
    striking down leg removes those benefits than shouldn’t do it.
   concern about when to do it, if the group that you are reading in for is smaller than the
    beneficiaries of the leg then it won’t overtax the legislature. Conversely more ppl being
    read in than benefitting – massive tax on the leg. Relative size of the groups.
   Also good because if it not incredibly intrusive, won’t affect massive change in the legislative
    scheme then it is fine to read in.
   Distinction between legislation illegitimate to its purposes (big M) can strike it down but if it
    is underincluisive, than can be added to and so reading in is good.
   Budgetary consideration – if too expensive then hesitant to read in esp in cases of
    underinclusion
   Inteniotn of legislature – court says that if they chose a specific means, and clear that chose
    that means and only that means than reading in is inappropriate – departing from their
    intention. Has chosen a particular means to attain their objective and if reading in would
    ruin this then too mush of an interference.
   Where the legislature has made a specific choice but no clear statement about means then
    reading in is not intrusive
   Concener: Degree of intrusiveness – frustration of legislative means to affect an objective.
    Shouldn’t ad hoc choose . reading in when larger part is objectionable is better than striking
    down because that is incredibly intrusive
   when beneficiaries are too big then bad idea to read in but if smaller then ok to read in.
   Budgeatary considerations
   Other beneficiaries – people presently benfitting in charter protected rights – read in – or
    undermine their expectations
         3. Severance – thinks that the legislature wrongly included something
   Twin of reading in – when sever, not strike?
   Analysis doesn’t change between the 2
         4. Delayed declarations of invalidity – court says that the act is unconstitutional in
             whose or part and gives the legislature a certain amount of time to reposnd (2-12
             months)
   If the courts thinks that the legislature has better expertise than they will defer and not
    strike down. The leg has a better shot of coming up with a constitutional fix then does the
    court itself. – institutional incompetence
   Manitoba Lang Ref case – example – when there is a constitutional catastrophe that would
    accompany invalidity – what would happen if all laws were declared unconstitutional
   Striking down – poses danger to publc – Sway – strike it down and allow dangerous people
    out on the streets. If you immediately strike down than expose the public to a whole range
    of dangers.
   Give leg a break
   People who would otherwise benefit – and have legit expectation – deprived from the
    benefit if the court immediately strikes it down, by contrqst will be able to benefnit in the
    time the leg gets to fix the const. Problem
   Why not? Basically allows an unconstitutional state of affairs to continue – rights are getting
    violated and that continues for certain number of months. SCC stamp of approval on
    unconstitutional behaviour.
   Nullification not appropriate and reading in not less intrusive
   Invalidity – force legislatures to respond to the court at the time of the court’s choosing –
    hijacks the legislative agenda
                          Constitutional Law – Exam Outline

           Intrusion into legislative agendas, unconvincing

INTERPRETIVE TECHNIQUES/COMBOS

            -   READING down – 2 Iinterpretations, const and unconst, will choose to read down so to
                make the leg constitutional (MacKay). Mechanism not a rememdy, avoids a const.
                problem
            -   Should the court grant exemptions? Recognize that it exists, the court will find that leg
                is by and large valid but will carve out an exemption for a certain group of people
            -   Delayed reading in/severace? May also be a good idea, not recognized as possibilities,
                but are there good arguments for delayed reading in and severance

SECTION 24(1) REMEMDIES
          - APPLIES TO GOVERNMENT ACTION- versus 52 which applies to statutes (Little Sisters)
          - DECLARATIONS – used in L.S what the government actor is doing is unconstitutional.
               Problems of ongoing enforcement, remedial provisiosn – if you simply declare it
               unconsittuaiotnla you place a burden on the claimant to push the government to do the
               right thing. After the finding that actions were unconst. (exercise of discretion by
               customs agents) the government drags it’s heels and in 20007 came back.
          - MORE INTRUSIVE MEAUSRES - They use a declaration because it is less invasive on
               government, less instrusive on government prerogatives. Just assume the ogvenment
               actor will comply, act in good faith and respond if grant a declaration. Less intrusive on
               government
          - Dissent – leg permits unconst behavbiour, problem with leg versus the maj who says it is
               a prob with the administrative agents


Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120

FACTS: Little Sister's Book and Art Emporium is a bookstore in Vancouver, BC that sells gay and lesbian-
related literature. It imports most of its material from the United States, which has often caused trouble
at the border when the material would be refused entry as it was classified as obscene. The bookstore
challenged the section of the Customs Act which prohibited the importation obscene material as well as
a section of the Act that put the onus on the importer to disprove obscenity.

RATIO: the Customs legislation infringes s. 2(b) of the Charter. With the exception of the reverse onus
provision in s. 152(3) of the Customs Act, however, the legislation constitutes a reasonable limit
prescribed by law which the Crown has justified under s. 1 of the Charter. The Customs Tariff
prohibition is not void for vagueness or uncertainty, and is therefore validly “prescribed by law”.
Parliament’s legislative objective, which is to prevent Canada from being inundated with obscene
material from abroad, is pressing and substantial, and Customs procedures are rationally connected to
that objective. Moreover, the basic statutory scheme set forth in the Customs legislation, properly
implemented by the government within the powers granted by Parliament, was capable of being
administered with minimal impairment of the s. 2(b) rights of importers, apart from the reverse onus
provision. Customs officials have no authority to deny entry to sexually explicit material unless it comes
within the narrow category of pornography that Parliament has validly criminalized as obscene. With
respect to lawful publications, the interference sanctioned by Parliament was limited to the delay, cost
and aggravation inherent in inspection, classification and release procedures.
                          Constitutional Law – Exam Outline

the appellants suffered differential treatment when compared to importers of heterosexually explicit
material, let alone more general bookstores that carried at least some of the same titles as the appellant
bookstore. Moreover, while sexual orientation is not mentioned explicitly in s. 15 of the Charter, it is
clearly an analogous ground to the listed personal characteristics. The appellants were entitled to the
equal benefit of a fair and open customs procedure, and because they imported gay and lesbian erotica,
which was and is perfectly lawful, they were adversely affected in comparison to other individuals
importing comparable publications of a heterosexual nature. On a more general level, there was no
evidence that homosexual erotica is proportionately more likely to be obscene than heterosexual
erotica. It therefore cannot be said that there was any legitimate correspondence between the ground
of alleged discrimination (sexual orientation) and the reality of the appellants’ circumstances (importers
of books and other publications including, but by no means limited to, gay and lesbian erotica). There
was ample evidence to support the trial judge's conclusion that the adverse treatment meted out by
Canada Customs to the appellants violated their legitimate sense of self-worth and human dignity. The
Customs treatment was high-handed and dismissive of the appellants' right to receive lawful expressive
material which they had every right to import.

Schachter v. Canada, [1992] 2 S.C.R. 679

FACTS: Under section 52(1), the impugned law may be subject to any number of remedies: the law may
be struck down completely, it may be suspended until remedied by the legislature, it may be read down
to avoid the violation, an omission may be read in to the law, or the impugned provision may be
severed.
Under section 24(1), the victim of the impugned law may apply for either a constitutional exemption, an
injunction, or damages
Father wanted equal benefits from unemployement when decided to stay home with his wife after their
newborn was born.

RATIO: The purpose of reading in is to be as faithful as possible within the requirements of the
Constitution to the scheme enacted by the legislature. In some cases, of course, it will not be a safe
assumption that the legislature would have enacted the constitutionally permissible part of its
enactment without the impermissible part. There reading in would not be appropriate. Just as reading
in is sometimes required in order to respect the purposes of the legislature, it is also sometimes
required in order to respect the purposes of the Charter. Reading in therefore is a legitimate remedy
akin to severance and should be available under s. 52 in cases where it is an appropriate technique to
fulfil the purposes of the Charter and at the same time minimize the interference of the court with the
parts of legislation that do not themselves violate the Charter.

          The first step in choosing a remedial course under s. 52 is to define the extent of the
inconsistency which must be struck down. Usually, the manner in which the law violates the Charter
and the manner in which it fails to be justified under s. 1 will be critical to this determination.

In some circumstances, s. 52(1) mandates defining the inconsistent portion which must be struck down
very broadly. This will almost always be the case where the legislation or legislative provision does not
meet the first part of the Oakes test, in that the purpose is not sufficiently pressing or substantial to
warrant overriding a Charter right. Where the purpose of the legislation is itself unconstitutional, the
legislation should almost always be struck down in its entirety.
                           Constitutional Law – Exam Outline

            Where the purpose of the legislation or legislative provision is deemed to be pressing and
substantial, but the means used to achieve this objective are found not to be rationally connected to it, the
inconsistency to be struck down will generally be the whole of the portion of the legislation which fails
the rational connection test. It matters not how pressing or substantial the objective of the legislation may
be; if the means used to achieve the objective are not rationally connected to it, the objective will not be
furthered by somehow upholding the legislation as it stands. Where the second and/or third elements of
the proportionality test are not met, there is more flexibility in defining the extent of the inconsistency.
Striking down, severing or reading in may be appropriate in cases where the second and/or third elements
of the proportionality test are not met.

				
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