Docstoc

RULE OF LAW_ SEPARATION OF POWERS_ JUDICIAL INDEPENDENCE

Document Sample
RULE OF LAW_ SEPARATION OF POWERS_ JUDICIAL INDEPENDENCE Powered By Docstoc
					                                                                                                                                                               1
Constitutional Law, Fall/Winter 2010-2011, Prof Hoi Kong
INTRODUCTION................................................................................................................................................ 5
RULE OF LAW, SEPARATION OF POWERS ......................................................................................................... 5
   The Constitution ........................................................................................................................................ 5
      Amending Formula ............................................................................................................................... 5
   Unwritten Constitutional Principles ........................................................................................................... 6
             Reference re Secession of Quebec............................................................................................... 6
   Constitutionalism and the Rule of Law ..................................................................................................... 6
             Roncarelli v Duplessis ................................................................................................................. 7
             British Columbia v Imperial Tobacco Canada Ltd ...................................................................... 7
             British Columbia (A-G) v Christie .............................................................................................. 7
             Reference Re Manitoba Language Rights ................................................................................... 8
   Separation of Powers (s 96) ....................................................................................................................... 8
             Labour Relations Board of Sask. v John East Iron Works Ltd. ................................................... 9
             Reference re Residential Tenancies Act ...................................................................................... 9
             Sobeys Stores v Yeomans and Labour Standards Tribunal (NS) ...............................................10
             Reference re Amendments to the Residential Tenancies Act (NS) ............................................10
             McEvoy v A-G of New Brunswick and A-G of Canada ............................................................10
             Reference re Young Offenders Act (PEI) ...................................................................................11
             Crevier v Quebec (A-G) .............................................................................................................11
      Judicial Independence ..........................................................................................................................11
             Reference re Provincial Court Judges ........................................................................................11
             Beauregard v Canada ..................................................................................................................12
FEDERALISM ..................................................................................................................................................12
   Interpreting Legislation ............................................................................................................................12
      Characterization of Powers ..................................................................................................................12
             Russell v The Queen...................................................................................................................13
             Hodge v The Queen ....................................................................................................................13
             R v Morgentaler..........................................................................................................................14
             Reference Re Employment Insurance Act ..................................................................................14
      Scope of Powers ...................................................................................................................................15
             Citizens Insurance Company v Parsons ......................................................................................16
      Conflict ................................................................................................................................................16
             General Motors of Canada v City National Leasing...................................................................19
             AG Ontario v AG Canada (The Local Prohibition Reference) ...................................................20
             Multiple Access Ltd v McCutcheon ...........................................................................................20
             Ross v Registrar of Motor Vehicles ...........................................................................................21
             Bank of Montreal v Hall .............................................................................................................21
             Rothmans, Benson & Hedges Inc v Saskatchewan ....................................................................22
             McKay v The Queen ..................................................................................................................22
             Bell Canada v Quebec (Commission de la santé et de la sécurité du travail) .........................23
             Irwin Toy v Quebec (AG) ..........................................................................................................23
             Canadian Western Bank v The Queen in Right of Alberta .........................................................24
             British Columbia (AG) v Lafarge Canada ..................................................................................24
   Economic Regulation................................................................................................................................25
      Extent of Property and Civil Rights .....................................................................................................25
             Carnation Co v Quebec Agricultural Marketing Board ..............................................................25
             AG Manitoba v Manitoba Egg and Poultry Association (Manitoba Egg and Poultry Reference)
             ....................................................................................................................................................25
             Re Agricultural Products Marketing Act ....................................................................................25
         Natural Resources ...........................................................................................................................26
             CIGOL v Government of Saskatchewan ....................................................................................26
             Central Canada Potash Co v Government of Saskatchewan ......................................................26
   Trade and Commerce s 91(2)....................................................................................................................27
      Interprovincial and International Trade ...............................................................................................27


                                                                                                                                                               1
2
           The Queen v Klassen ..................................................................................................................27
           Caloil v AG Canada ...................................................................................................................27
           Dominion Stores v The Queen ...................................................................................................28
     General Regulation of Trade ................................................................................................................28
           Labatt Breweries of Canada v AG Canada .................................................................................28
           General Motors of Canada v City National Leasing...................................................................29
           Kirkbi AG v Ritvik Holdings Inc ...............................................................................................29
  Peace, Order and Good Government ........................................................................................................30
     Emergency Powers...............................................................................................................................30
           Reference Re Anti-Inflation Act.................................................................................................30
     National Concern .................................................................................................................................31
           R v Crown Zellerbach Canada ...................................................................................................31
           Friends of the Oldman River Socity v Canada (Minister of Transport) .....................................32
  Criminal Law ............................................................................................................................................32
           Reference re Validity of Section 5(A) of the Dairy Industry Act (Margarine Reference) ..........33
           RJR MacDonald Inc v Canada (A-G).........................................................................................33
           R v Hydro-Québec ......................................................................................................................34
           Reference Re Firearms Act ........................................................................................................35
     Provincial Power to Regulate Morality ................................................................................................36
           Re Nova Scotia Board of Censors v McNeil ..............................................................................36
           Westendorp v The Queen ...........................................................................................................36
  Federalism and Race .................................................................................................................................36
           Union Colliery Co v Bryden .......................................................................................................37
           Cunningham v Tomey Homma ..................................................................................................37
           Quong Wing v The King ............................................................................................................37
  Flexible Federalism ..................................................................................................................................38
           Reference Re Canada Assistance Plan (BC) ..............................................................................40
           Coughlin v Ontario Highway Transport Board ..........................................................................40
CHARTER .......................................................................................................................................................42
           Hunter v Southam .......................................................................................................................42
     Notwithstanding Clause (s 33) .............................................................................................................42
           Ford v Quebec (A-G) .................................................................................................................42
  State Action Doctrine ...............................................................................................................................43
           Retail, Wholesale and Department Store Union v Dolphin Delivery .........................................43
           McKinney v University of Guelph .............................................................................................44
           Godbout v Longueil (City) .........................................................................................................44
           Eldridge v British Columbia (A-G) ............................................................................................45
           Vreind v Alberta .........................................................................................................................45
           Hill v Church of Scientology of Toronto ....................................................................................45
  Oakes Test: s 1 ..........................................................................................................................................46
           R v Nova Scotia Pharmaceutical Society ...................................................................................47
           R v Thierens ...............................................................................................................................47
           R v Oakes ...................................................................................................................................48
           Edmonton Journal v Alberta (A-G) ............................................................................................48
           Irwin Toy v Quebec (A-G) .........................................................................................................48
     Exercise of Administrative Discretion .................................................................................................49
           Multani v Commission Scholaire Margurete Bourgeois ............................................................49
  Freedom of Religion: s 2(a) ......................................................................................................................50
           R v Big M Drug Mart .................................................................................................................51
           Edwards Books and Art Ltd v The Queen ..................................................................................51
           Syndicat Northcrest v Amselem .................................................................................................52
           Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine ..........................52
           Alberta v Hutterian Bretheren of Wilson County .......................................................................53
           Trinity Western University v BC College of Teachers ...............................................................53
           Zylberberg v Sudbury Board of Education .................................................................................54
           Chamberlain v Surrey School District No 36 .............................................................................54
           Bruker v Markovitz ....................................................................................................................54

2
                                                                                                                                                             3
   s 93 .......................................................................................................................................................55
           Adler v Ontario ...........................................................................................................................55
Freedom of Expression: s 2(b) ..................................................................................................................56
           R v Keegstra ...............................................................................................................................57
           Retail, Wholesale and Department Store Union v Dolphin Delivery .........................................57
           Irwin Toy v Quebec (AG) ..........................................................................................................57
   Hate Speech .........................................................................................................................................58
           R v Keegstra ...............................................................................................................................58
   Sexually Explicit Materials ..................................................................................................................60
           R v Butler ...................................................................................................................................60
           Little Sisters Book and Art Emporium v Canada (Minister of Justice) ......................................61
           R v Labaye .................................................................................................................................62
   Political Speech....................................................................................................................................63
           Harper v Canada (AG)................................................................................................................63
   State Support for Expression  TEST FOR POSITIVE OBLIGATION ...........................................64
           Haig v Canada ............................................................................................................................64
           Native Women‟s Association of Canada v Canada ....................................................................65
           Baier v Alberta ...........................................................................................................................65
   Access to Public Property ....................................................................................................................66
           Montreal (City) v 2951-1366 Quebec Inc ..................................................................................66
Equality: s 15 ............................................................................................................................................67
           Andrews v Law Society of British Columbia .............................................................................67
           1995 Equality Trilogy ................................................................................................................68
           Law v Canada .............................................................................................................................68
           R v Kapp.....................................................................................................................................69
   Differential Treatment .........................................................................................................................70
           Eldridge v British Columbia .......................................................................................................70
           Auton v British Columbia ..........................................................................................................71
   Enumerated & Analogous Grounds .....................................................................................................71
           Corbière v Canada ......................................................................................................................72
   Comparator Group ...............................................................................................................................72
           Hodge v Canada .........................................................................................................................72
           Auton v British Columbia ..........................................................................................................73
           Granovsky v Canada ..................................................................................................................74
   Disadvantage/Discrimination ...............................................................................................................74
           M v H .........................................................................................................................................74
           Gosselin v Quebec ......................................................................................................................75
           Canadian Foundation for Children, Youth & the Law v Canada ...............................................75
           R v Kapp.....................................................................................................................................75
Life, Liberty and Security of the Person: s 7 ............................................................................................76
           BC Motor Vehicle Reference .....................................................................................................76
           R v Morgentaler..........................................................................................................................77
           Rodriguez v British Columbia ....................................................................................................78
           Gosselin v Quebec ......................................................................................................................79
           Chaoulli v Quebec ......................................................................................................................79
   Decisional Autonomy ..........................................................................................................................80
           B(R) v Children‟s Aid Society of Metro Toronto ......................................................................80
Language Rights .......................................................................................................................................81
           Quebec v Blaikie (No 1) .............................................................................................................82
           Societé des Acadiens v Association of Parents for Fairness in Education .................................82
           Mahe v Alberta ...........................................................................................................................82
           Ford v Quebec ............................................................................................................................83
Remedies ..................................................................................................................................................83
           Schachter v Canada ....................................................................................................................84
           Vreind v Alberta .........................................................................................................................86
           M v H .........................................................................................................................................86
           Canada v Hislop .........................................................................................................................87

                                                                                                                                                             3
4
            Little Sisters Book and Art Emporium v Canada .......................................................................87
            Doucet-Boudreau v Nova Scotia ................................................................................................88
    Standing ....................................................................................................................................................88




4
                                                                                                          5
INTRODUCTION
Monahan, Canadian Constitution (WebCT)
 Constitution defines the framework of state interaction with citizens, and between various State
   institutions
 Constitution Act 1982 includes amending formulae and Charter
 “Body of rules aboue law making”
 Unwritten principles can be used to full in the gaps in the entrenched or written constitution
    o Federalism
           Restricts jurisdictions of each level of government
           Requires independent judiciary to police distribution of power
           Not too restrictive, since the other level of government can enact a similar statute to any that
               is ultra vires
    o Democracy
           Responsible government
           Executive is subject to the control of the legislature
    o Constitutionalism and the Rule of Law
    o Protection of Minorities




RULE OF LAW, SEPARATION OF POWERS
The Constitution
Amending Formula
   British North America Act 1867 contained no amending formula (Westminster made only
    amendments)
   Statute of Westminster 1931 gives Dominion Parliament power to repeal or amend Imperial statutes
    applying to Canada, excluding BNA Act
   Westminster generally followed wishes of Dominion Parliament in amending BNA Act
   Provincial consultation?
     o Westminster did not seek it
     o Patriation Reference 1981 said provincial consultation was a convention, but not enforceable
   Constitution Act 1982
     o s 38 – General amending formula
          (1) Parliament and seven of the provinces containing two thirds of the population
          (3) Opt-out – Provincial legislatures can opt-out of amendments
          s 39 – Time limit: amendment process must take at least one year (39(1)), no more than three
             years (39(2)).
          s 40 – Compensation for provinces to whom transfers of education or cultural powers to
             Parliament do not apply
          s 42 – subjects of this formula
     o s 41 – unanimity required (Parliament + all provinces)
          Changes in the office of Queen, Governor General, Lieutenant Governor
          Minimum of MPs per province
          Use of French and English
          Composition of Supreme Court
          Amendments to s 41
     o s 43 – Bilateral formula (subjects relating to particular provinces‟ relations with Parliament)
          Applies to minority religious education (per s 93)
     o ss 44-5 – Federal and provincial unilateral procedure (for constitutional matters relating only to
          themselves)




                                                                                                          5
6
Unwritten Constitutional Principles
   Court finds 4 primary unwritten principles in the Constitution (Secession Reference)
     o Constitutionalism and the Rule of Law
     o Federalism
     o Democracy
     o Protection of Minorities


Reference re Secession of Quebec
[1998] 2 SCR 217, 161 DLR (4th) 385  CB 11
Question
 Can Quebec‟s legislature unilaterally separate under the laws of Canada?
 Can Quebec‟s legislature unilaterally separate under international law?
 In the case of a conflict, which takes precedence?
Reasons
 Secession would unilaterally alter the bargain made at Confederation, so there is a duty to negotiate
 Duty drawn from unwritten constitutional principles
      Federalism
      Democracy
      Constitutionalism and the Rule of Law
      Protection of Minorities
 The Court cannot provide a definitive formula for dealing with a yes vote because many of the issues
    are beyond its institutional competence to work out some matters (ex. debt, boundaries)
Holding
No to first two question, unnecessary to answer third. All parties have a duty to negotiate.


Constitutionalism and the Rule of Law
   Constitutionalism “requires all government action comply with the Constitution” (Secession
    Reference)
     o Safeguards fundamental human rights and individual freedoms
     o Ensures minorities can maintain and promote their identities
     o Allocates power among different levels of government (one majority isn‟t more important than
         the others)
     o Foundation of all lawful government power
   Rule of Law (Secession Reference, CB 22-3)
     1. “Law is supreme over the acts of both government and private persons … one law for all”
     2. Must maintain an order of positive laws (Manitoba Language Rights Reference)
     3. “Relationship between the state and the individual must be regulated by law” (Roncarelli)
     o Also contained in the Rule of Law (Fuller) – generality of laws; requirement of promulgation
         (laws must be publicized); prospective application of legislation (cannot be retroactive);
         intelligibility; avoidance of contradiction; constraints of possibility; relative stability through
         time; interpretive congruence
   Court will not overrule the legislature based on the rule of law (Imperial Tobacco, Christie)
     o “Protection from legislation that some might view as unjust or unfair properly lies not in the
         amorphous underlying principles of our Constitution, but in its text and the ballot box” (Imperial
         Tobacco)
     o Rule of Law cannot overrule legislation based on its content
           (Referring to three implications of Rule of Law from Secession Reference): “The first
               principle requires that legislation be applied to all those, including government officials, to
               whom it, by its terms, applies. The second principle means that legislation must exist. And
               the third principle, which overlaps somewhat with the first and second, requires that state
               officials‟ actions be legally founded” (Imperial Tobacco, CB 33)

   Will overrule the executive based on the rule of law (Roncarelli)

6
                                                                                                           7
     o Exercise of executive discretion limited by law
   Institutional limits on courts‟ use of rule of law (Christie)
     o Stability – shouldn‟t introduce new unwritten constitutional principles lightly to maintain stability
          of interpretation
     o Institutional competence (Secession Reference)
     o Potential adverse consequences (ex in Christie)
     o Respect for separation of powers


Roncarelli v Duplessis
[1959] SCR 121, 16 DLR (2d) 689  CB 677
Facts
 Roncarelli owned a restaurant and helped bail Jehovah‟s Witnesses out of jail
 Duplessis personally ordered his liquor license be revoked – the Act creating the Commission gives the
     Commissioner “discretion” in giving or revoking licenses, and requires revoking any license held by a
     bad citizen
 Roncarelli could not sue the Liquor Commissioner so he sued Duplessis personally
Reasons
 “no such thing as absolute and untrammelled „discretion‟” and that “discretion necessarily implies
     good faith in discharging public duty”
 Discretion must be exercised within the bounds of the act – reasons for cancelling a permit should only
     be those “as are incompatible with the purposes envisaged by the statute”
 Roncarelli was exercising an “unchallengeable right totally irrelevant to the sale of liquor” by bailing
     people out of jail
 It was a “gross abuse of legal power”
Holding
In favour of the appellant (Roncarelli). Agencies can only exercise discretion within the reasonable
bounds of the statutes that create them. Discretion requires good faith.


British Columbia v Imperial Tobacco Canada Ltd
[2005] 2 SCR 473, 2005 SCC 49, 257 DLR (4 th) 193 CB 31
Facts
 Health Care Recovery Act allows Province to sue tobacco manufacturers to sue for health care costs
     associated with smoking
 Includes different evidentiary and procedural rules, etc, aimed at the government
 Imperial challenged on the grounds it was federal jurisdiction, and that the it contravened judicial
     independence and the rule of law
 Court of Appeal says it is Provincial jurisdiction – falls under “Property and Civil Rights”
Reasons (Major J)
 There is no fundamental alteration or interference with the court‟s ability to act independently – the
     court can still render decisions “based solely on the requirement of law and justice”
 Acknowledging Imperial‟s conception of the constitution would undermine legitimacy of judicial
     review of legislation for constitutionality
 Court does not have the competence or legitimacy to intervene
Holding
Act is intra vires. Rule of Law will not be used to overrule the legislature in this case.


British Columbia (A-G) v Christie
[2007] 1 SCR 873, 2007 SCC 21, 280 DLR (4 th) 528  CB 36
Facts
 BC imposes 7% tax on legal services to fund legal aid
 Lawyer claims it restricts access to justice
Reasons
 General access to legal advice is not a right recognized under the „rule of law‟

                                                                                                           7
8
 Logical result of positing this right would be massive public legal aid mandated by the constitution.
 Rule of law is only as described in Manitoba Language Rights
Holding
Law is intra vires. Rule of law will not be used to overrule the legislature.


Reference Re Manitoba Language Rights
[1995] 1 SCR 721
Question
 Do the Constitution Act 1867 and the Manitoba Act 1870 require all the laws in Manitoba to be written
     in French as well as English?
Holding
Yes. All laws not in both languages have no force and effect.
Reasons
 Nearly all Manitoba‟s laws are only written in English, and those are invalid
 The declaration of invalidity will be delayed until the laws can be translated
      o The rule of law requires a body of positive laws, so an immediate declaration of invalidity would
           violate the rule of law.
Ratio
Rule of law requires a body of positive laws. The Court cannot allow its decisions to violate the rule of
law.

Separation of Powers (s 96)




Appellate Courts
 Parliament can establish a “General Court of Appeal” (SCC) and any other tribunals for administering
   federal laws (Constitution Act 1867, at s 101)
 Supreme Court, Provincial Courts of Appeal, Federal Court
    o JCPC was court of final instance until 1949
 No inherent jurisdiction, only that defined by statute
Superior Courts (s 96 Courts)
 Courts of inherent jurisdiction (Sobeys)
 Judges appointed by the Governor General (s 96)



8
                                                                                                         9
  Judges hold office only “during good behaviour” and can be removed by the Governor General; must
   retire at 75 (s 95(1)(2))
 Salaries paid by Parliament (s 100)
Provincial Courts/Administrative Tribunals
 Jurisdiction defined by statute
    o Cannot impinge on powers assigned to s 96 courts
    o Cannot broadly assume powers exercised by s 96 courts (McEvoy)
 Residential Tenancies Test to determine validity of jurisdiction for inferior courts/administrative
   tribunals (Re Residential Tenancies Act)
    1. Does the power conform to a power exercised by a s 96 Court in 1867
           Search is for “broad conformity” to a jurisdiction exercised in a majority of the original four
               provinces. In case of a tie, refer to the UK in 1867 (Sobeys)
           Is it a novel jurisdiction, a “new defining social purpose”? (quote from Lamer CJC‟s
               concurrence in Re Residential Tenancies (NS)).
               Labour relations board (John East Iron; Sobeys)
               Youth courts (Re Young Offenders Act)
               Tenant-landlord relations (Lamer CJC‟s concurrence in Re Residential Tenancies (NS)).
           Tribunal‟s powers intra vires if the power was co-exercised by s 96 courts and inferior
               courts in 1867 (Re Residential Tenancies (NS)).
    2. If yes, is it a judicial power
           Subject matter, not apparatus (Re Residential Tenancies Act)
               Private dispute between parties
               Applies recognized body of rules
               Manner consistent with fairness and impartiality
    3. If yes, does the institutional context make the judicial power secondary to other public policy
         objectives (i.e. has the institutional setting transformed the power into a non-s 96 power)
           Judicial function must be ancillary to the overall scheme (John East Iron)
           Judicial function must be “necessarily incidental aspect of the broader social policy goal”
               (Sobeys)
           Only invalid when the primary purpose is the judicial function (Re Residential Tenancies
               Act)
 Judicial review
     Inferior courts/administrative tribunals are subject to review by s 96 courts
     Privative clauses in the legislation that establishes them can insulate their decisions from judicial
         review
           Desirable because tribunals possess specialized knowledge that courts might not; might use
               alternative dispute-resolution mechanisms; more streamlined and efficient dispute-resolution
               mechanism (not bound by rules of civil procedure)
           Area of jurisdiction must be subject to review by s 96 courts (Crevier)


Labour Relations Board of Sask. v John East Iron Works Ltd.
[1949] AC 134, [1948] 4 DLR 673 (PC)  Cb 511
Issue
Did the Labour Relations Board exercise a judicial power; was it that of a s 96 court?
Reasons
 The Board was “a new conception of industrial relations” that did not exist 1867.
 Jurisdiction was not necessarily the same as a s 96 court in 1867
Holding
Board is intra vires. Novel jurisdiction from that envisaged for s 96 Courts at Confederation.


Reference re Residential Tenancies Act
[1981] 1 SCR 714, 123 DLR (3d) 554  CB 513
Facts
Ontario Residential Tenancies Act, 1979 creates a Commission to resolve disputes between landlords and

                                                                                                         9
10
tenants, with power to evict, and require specific performance
Issue
Does it contravene s 96
Reasons
Creates a 3 part test to determine if the Commission contravenes s 96
1. Does the power conform to a power exercised by a s 96 Court in 1867
2. If yes, is it a judicial power
3. If yes, does the institutional context make the judicial power secondary to other public policy
    objectives (i.e. has the institutional setting transformed the power into a non-s 96 power)
Holding
The Commission fails at the third step; the impugned provisions are ultra vires


Sobeys Stores v Yeomans and Labour Standards Tribunal (NS)
[1989] 1 SCR 238, 57 DLR (4th) 1  CB 516
Facts
Tribunal orders Sobeys to rehire Yeomans after firing him. Tribunal adjudicates disputes between
employers and employees, and can order specific performance. Also exists to inform about standards, etc.
Reasons (Wilson J)
Court applies the Residential Tenancies Test
1. The search is for “broad conformity” of jurisdiction with s 96 Courts at Confederation. The
    jurisdiction is that in a majority of the original four provinces. In case of tie, refer to the UK 1867.
     a. Yes, the Tribunal does
2. It does perform a judicial function.
3. The judicial function is a “necessarily incidental aspect of the broader social policy goal of providing
    minimum standards of protection for non-unionized employees.”
Holding
Tribunal does not contravene s 96. The standard for step 1 is that of a majority of the 4 provinces at
Confederation. Passes step 3 if the judicial function is incidental to the broader policy objective.


Reference re Amendments to the Residential Tenancies Act (NS)
[1996] 1 SCR 186, 131 DLR (4th) 609  CB 521
Facts
NS establishes a Board to adjudicate disputes between landlords and tenants, with right to appeal to a s 96
Court (similar to previous Residential Tenancies)
Reasons (McLachlin J)
Applies the Residential Tenancies Test
1. No – Board does not exercise powers that were exclusive to s 96 Courts at Confederation (inferior
    courts also exercised powers over landlord-tenant disputes)
 Lamer CJC in concurrence said the conception of landlord-tenant relations found in the Board was a
    novel jurisdiction.
Holding
Board does not violate s 96. If impugned powers were exercised by inferior as well as s 96 courts at
Confederation, no contravention of s 96.


McEvoy v A-G of New Brunswick and A-G of Canada
[1983] 1 SCR 704, 148 DLR (3d) 25  CB 527
Facts
 Parliament and New Brunswick want to create a unified court for all criminal matters in NB, that
    would combine Superior Courts with provincial courts
 Gives judges appointed by the Lt-Gov-in-Council exclusive jurisdiction to try all indictable offences
Reasons
 Fails all three parts of the Residential Tenancies Test
 Would completely obliterate s 96 Courts, and these cannot have less importance in criminal than in
    civil law

10
                                                                                                         11
Holding
The power to merge the courts is ultra vires; the courts contravene s 96.


Reference re Young Offenders Act (PEI)
[1991] 1 S.C.R. 252
Facts
PEI established a unified court for dealing with young offenders
Reasons
Novel jurisdiction – the rehabilitative aspect and the conceptualization of youth courts is so different from
criminal justice in 1867 that it is a novel jurisdiction.
Holding
Act does not violate s 96 because of part 1 of the Residential Tenancies test. Novel jurisdiction.


Crevier v Quebec (A-G)
[1981] 2 SCR 220, 127 DLR (3d) 1  CB 536
Facts
The privative clause for the Professions Tribunal precludes judicial review of its area of jurisdiction
Holding
Administrative tribunals‟ area of jurisdiction cannot be insulated from s 96 Court review by a privative
clause.


Judicial Independence
   Judicial independence an unwritten principle (Re Provincial Court Judges)
     o Founded in the reference in the preamble of the Constitution Act 1867,
           Act states Canada “will have a constitution similar in principle to that of the United
               Kingdom”
           Refers to the Act of Settlement 1701 stating judges serve in good behaviour
     o Judiciary must be separated from the executive and legislature because it decides the bounds of
         their authority and how they relate to one another
     o Applies to all judges, including inferior court judges (Re Provincial Court Judges)
   Three components to judicial independence (Re Provincial Court Judges)
     o Financial security (remuneration is subject to Parliament‟s control, but there are limits)
           Cannot be a colourable purpose (Beauregard)
               SCC suggests impartial commissions to decide judges salaries, and Parliament can only
                   deviate with a good reason (Re Provincial Court Judges)
           Net salary cannot decrease (questionable doctrine)(Re Provincial Court Judges;
               Beauregard)
           Cannot be discrimination among judges in pay changes (that would constitute discrimination
               vis-à-vis other citizens, which is contrary the Charter)(Beauregard)
           Parliament has control over pensions as well as salary per s 100 (Beauregard)
     o Security of tenure (subject to “good behaviour” per s 95)
     o Institutional independence (courts administer themselves, set their own schedules, etc)


Reference re Provincial Court Judges
[1997] 3 SCR 3, 150 DLR (4th) 577  CB 538
Facts
 PEI, AB, MB impose salary reductions on provincial court judges as part of a public service pay cut
 Cases invoked s 11(d) of the Charter (right to fair trial by an independent and impartial tribunal)
Holding
Salary cuts are ultra vires.
Reasons
 Notwithstanding s 11(d) of the Charter or s 100 of the CA 1867, “judicial independence is at root an
    unwritten principle” founded in the preamble to the Constitution Act 1867 referring to the Act of

                                                                                                         11
12
    Settlement 1701
   Judicial independence extends to all courts, provincial courts like s 96 courts.
   Executive should turn to an impartial commission to decide judges‟ salaries, and can only differ from
    its recommendations with good reason.
 Three determining factors for judicial independence
    o Financial security
    o Security of tenure
    o Institutional independence (can set their own schedules, decide what cases to hear, etc)
Ratio
Provincial court judges are protected by judicial independence like s 96 judges.


Beauregard v Canada
[1986] 2 SCR 56, 30 DLR (4th) 481
Facts
Parliament wanted new judges‟ pensions to be based on contributions. This was part of a package that
included overall pay increases.
Holding
The contribution-based pensions were intra vires.
Reasons (Dickson CJC)
 The rest of the package showed there was no improper motive. Parliament could not change
     remuneration if there was a hint of “improper or colourable purpose”
 The net salary did not decrease.
 There was no discrimination vis-à-vis other citizens, or among judges
 s 100 also gives Parliament control over pensions
Holding
Changes in judges‟ remuneration cannot have an “improper or colourable purpose.”

FEDERALISM
Interpreting Legislation
   To determine application of legislation, must determine validity and operability
     o Characterize the matter of the legislation
     o Fit the matter into a head of power
     o Determine conflict, and deal with it

Characterization of Powers
Pith and Substance Doctrine
 What is the underlying problem that the legislation is trying to address? (Swinton, CB 209)
 “Matter is a class of law, not of fact” – all law is regulation, so the matter is the regulation intended,
    not the facts the regulation is pointed at (Lederman, at CB 210)
 Decision as to matter is not based on logic, but is based on “policy and justice” (Lederman, at CB 210)
 Judges do not need to account for the merits of the law (Lederman, at CB 213)
 Legal effect (Morgantaler)
     o Probably best place to find the purpose (purpose defines the matter)
     o “How the legislation as a whole affects the rights and liabilities of those subject to its terms”
     o Court will also consider social or economic effects
           The background or motivation (Re Anti-Inflation Act, see below “Emergency Powers” at 29)
           Evidence of mischief
 “Ultimate long-term, practical effect” might be considered, but will in some cases be irrelevant
    (Morgentaler)
 Sources (Morgantaler)
     o “Four corners of the legislation”
     o Extrinsic evidence (not necessarily conclusive)

12
                                                                                                        13
             Other legislation
              Identical effect of other legislation does not determine validity/invalidity
              Counter-examples are McNeil and Westendorp (below in “Criminal Law” at 34)
           Evidence of mischief the legislation is aimed at
              Legislative debates
 Pith and substance of legislation must be intra vires the jurisdiction of the enacting legislature
     o Cannot be “in relation to” ultra vires powers, can only “affect” them (Manitoba Egg and Poultry
         Reference, below in “Extent of Property and Civil Rights” at 23)
Colourability Doctrine
 Colourable legislation‟s stated purpose fits under an intra vires head of power, but the pith and
    substance falls under an ultra vires head of power (Lederman, at CB 212; Morgentaler)
 Examples: Morgentaler; Margarine Reference (below in “Criminal Law” at 31)


Russell v The Queen
(1882), 7 AC 829 (PC)  CB 104
Facts
 The Temperance Act 1878 passed by Parl allowed any municipality or county to ban the sale of liquor
    with a plebiscite
 Russell disobeyed the prohibition, claimed the Act was ultra vires for contravening s. 92
Issue
 Can Parl pass temperance legislation that applies to all provinces?
 Does the Act fall within s 92 (provincial jurisdiction)
 If yes, does it also fall within s 91 (federal jurisdiction) (test per Parsons)
Reasons
 Appellant claims it falls under 3 subsections of s. 92
    o 9) saloon, tavern licenses
    o 13) property and civil rights
    o 16) “Generally all matters of a merely local or private nature in the province
 Held that it primarily relates to “peace, order, and good government”
 It might incidentally touch on property and civil rights, but that is not its primary purpose
 Intemperance is not merely a local vice – the legislation is uniform because everyone gets the option to
    deal with a common problem
Holding
The Act is intra vires because it doesn‟t fall within any of the areas in s 92. Federal legislation can touch
on property and civil rights as long as it is incidental to the purpose of the act.


Hodge v The Queen
(1883), 9 AC 117 (PC); aff‟g. (1882), 7 OAR 246; rev‟g. (1881), 46 UCQB 141 (Ont. HC)  CB 107
Facts
 Ontario‟s Crooks Act transferred liquor licenses from municipalities to a provincial Board
 Hodge was charged with permitting billiards (against the regulations made by the Board)
Reasons
 H claims the act is ultra vires because
    o Conflicts with Dominion power of trade and commerce
    o Legislature is created by UK Parl, therefore limited by delegates non potest delegare (delegates
         cannot delegate)
    o Russell gives Parl control over liquor
 The Act is entirely local in its operation
 Only deals with licensing (s 92 (9) tavern licenses), not trade an commerce
 Provincial legislatures are not delegates
 Within the limits of s. 92, “the local legislature is supreme, and has the same authority as the Imperial
    Parliament”
 Double Aspect Doctrine


                                                                                                        13
14
    o    The matter of valid legislation can fall into two different heads of power, one federal and one
         provincial, allowing both levels to validly legislate on it.
Holding
Act is intra vires. Provincial legislatures are supreme in their area of competence. (NB “supreme” not
“sovereign” – there is only one sovereign Parliament: Westminster)


R v Morgentaler
[1993] 3 SCR 463  CB 215
Facts
 SCC decided in 1988 that Criminal Code provisions on abortion because they violated a woman‟s right
    to security of person, but that nonetheless they were a valid exercise of criminal law power (R v
    Morgentaler, [1988] 1 SCR 30)
 In January 1989 Morgentaler let it be known he wanted to open an abortion clinic in Halifax
 In March the NS Legislature changed the Hospitals Act to prohibit certain procedures from being
    performed outside of hospitals, and denying insurance coverage to anyone who sought such procedures
    (procedures were unconnected, and included abortion)
     o Heavy penalties for performing abortions outside hospitals
 Morgentaler performed abortions, and was charged under the Act
 NS argued the provisions were to prevent privatization of health care delivery
Holding
Ultra vires.
Reasons (Sopinka J)
 Must first identify the “matter”
     o Found in the “legal effect,” not so much in the “practical effect”
     o Legal effect – “how the legislation as a whole affects the rights and liabilities of those subject to
          its terms”
 Sources for determining matter
     o “four corners” of the legislation
          Fines strict if the purpose is only to protect public health care delivery
     o Extrinsic sources
          Invalid Criminal Code provisions
                 Provincial legislation has been invalid when it employs language “virtually
                   indistinguishable” from Criminal Code provisions
                 Provinces cannot stiffen, supplement, or replace criminal law
                 Similarity to Criminal Code provisions shows legislation is designed to serve a criminal
                   purpose
          Background, context
                 Timing of Morgentaler‟s clinic opening
                 Hansard debates show that was the “mischief” most commonly discussed when the
                   legislation was being debated
                 No prior study of cost-effectiveness or anything like that
 Held though legislation‟s form is intra vires provincial powers, the pith and substance is a prohibition
    on abortions, which is a criminal matter, and ultra vires.
Ratio
Colourable legislation – where the form is intra vires but the matter is ultra vires – is ultra vires


Reference Re Employment Insurance Act
2005 SCC 56  CB 226
Facts
 Federal Employment Insurance Act provides maternity and parental benefit provisions
 Quebec argues that the provisions are directed at supporting families with children, and fall under s
    92(13), property and civil rights, and 92(16), matters of a local nature
 The federal government argues that it falls under s 91(2A), unemployment insurance, claiming the
    provisions provide replacement income for mothers whose employment is interrupted by child birth

14
                                                                                                             15
Holding
Intra vires
Reasons (Deschamps J)
 Framers‟ intentions must be read in light of modern realities
      o Taken as a starting point
      o Not concerned with how jurisdiction was initially exercised, but its scope
 When s 91(2A) was created in the 40s, it took a piece out of s 92(13) and gave it to the federal
     government
 Sources to determine matter
      o Other provisions in the constitution (how it relates to 92(13))
      o Text/meaning (fits within unemployment insurance)
          Act fits these parameters for unemployment insurance, but cannot define leave, etc, because
              those fall into 92(13)
      o Previous judicial interpretation
          Safeway says private insurance must cover maternity
      o Consequences
          Maternity is a social good, and it is desirable that the whole society assume the risk taken by
              people who want to have kids.
Ratio
Court will look to policy considerations to determine legislation‟s validity.


Scope of Powers
   Matter of legislation must fit into one of the enumerated heads of power (ss 91, 92)
     o Legislation itself must fit into the scope of the legislature that passes it
     o Decisions of administrative tribunals must fit into the scope of power of the legislature that
          created the tribunal
   Determine if the head of power is broad enough to admit the legislation (scope and meaning of heads
    of power is not often disputed (CB 226)). Examples:
     o Property and Civil Rights, s 92(13), will be interpreted broadly (Parsons)
     o Trade and Commerce, s 91(2), has two branches (Parsons; see below “Trade and Commerce” at
          14)
            International and Interprovincial Regulation (see below “International and Interprovincial
                Regulation” at 25)
            General Regulation of Trade and Commerce (see below “General Regulation of Trade” at
                26)
     o Federal residual power, s 91 – POGG (Peace, order, and good government”)
            Emergency Powers (see below “Emergency Powers” at 28)
            National Concern (see below “National Concern” at 29)
     o Provincial residual power, s 92 (16), matters of a purely local nature
     o Federal Criminal Law power, s 91(27) (see below "Criminal Law" at 31)
            Requires valid criminal purpose, and specific form
     o Unemployment Insurance, s 91 (2A), is federal and extends to coverage for lost income on
          maternity leave (Re Employment Insurance Act, at 12)
     o Immigration and naturalization, s 91(25)
            Does not deal with the consequences of naturalization (ex voting, jobs, etc)(Quong Wing;
                confirmed in Tomey Homa, see below “Federalism and Race” at 35)
   Matter of legislation touching on heads of power outside the legislature‟s competence
     o Can only “affect” the other head of power (incidental), rather than be made “in relation to” the
          other head of power (primary purpose)(Carnation; Re Manitoba Egg and Poultry, below in
          “Trade and Commerce v Property and Civil Rights” at23)
     o Individual provisions can touch on ultra vires subjects if they are Necessarily Incidental to intra
          vires legislation (see below in “Conflict” at 14)
   If legislation is intra vires, but still comes into conflict with equally valid federal legislation, there is
    potential for conflict.



                                                                                                             15
16

Citizens Insurance Company v Parsons
(1881), 7 AC 96 (PC); aff‟g. (1880), 4 SCR 215  CB 97
Facts
 1876 Ontario enacts legislation that specifies standard conditions that must be part of every fire
    insurance policy
 P tries to make a claim on a policy, which the insurer says is invalid because he did not disclose
    necessary information when purchasing the policy
 P claims the conditions were void because they did not comply with the legislation
 Insurer claims legislation is ultra vires per s 91 BNA Act
Issue
 Does the impugned Act fall within the subjects enumerated in s 92 (provincial jurisdiction)
 It yes, does it also fall within s 91 (federal jurisdiction)
Reasons (Sir Montague Smith)
 While Parl. Is given broad powers, the general power should not override the particular ones in s 92
 Appellant (insurance) claims this is “trade and commerce” (s 91) not “property and civil rights”
    o Held that this is too narrow an interpretation of property and civil rights
    o s. 94 (Parl can pass uniform leg. for the common law provinces) speaks of “property and civil
          rights” in a broad sense (i.e. private law). Also the Quebec Act 1774
    o “property and civil rights” must be interpreted in a broad sense
 insurers are not “traders” in English bankruptcy laws, therefore not within “trade and commerce”
 “Trade and commerce” cannot be construed as broadly as the appellant would have it
 Two branches of “trade and commerce”
    o Federal government has power over interprovincial and foreign trade
    o “general trade power” – federal government can legislate on questions of general national trade
Holding
Act is intra vires. “Property and civil rights” applies broadly, even to contracts concerning property
(indemnifying it in this case).

Conflict
  Two paradigms of interjurisdictional legislative conflict (Ryder, B 247-49)
    o Classical paradigm – no overlap of powers allowed
           Promoted by Beetz J
           No overlap of interplay between federal and provincial heads of power
           Heads of power are “mutually modified” to prevent overlap
           Overlap prevented by invalidity through interjurisdictional immunity or reading down
           Weaknesses
              Not all problems fit neatly in heads of power
              Can create a legislative vacuum
              Unpredictable, especially in cases of intergovernmental cooperation
    o Modern paradigm – overlap of powers allowed
           Promoted by Hogg
           Levels of government have exclusive power to pass laws whose dominant characteristics
              (pith and substance) are within their jurisdiction
              National problems, where provinces are unable to regulate, are federal
              Weaknesses: Compromises provincial autonomy, because spillover is allowed, but only
                  the federal government can invoke paramountcy
Conflict requires:
 Duplication of legislative intention (Double Aspect Doctrine).
    o Determined by using the Pith and Substance Doctrine (above in “Characterization” at 10)
    o For individual provisions, sufficient integration per the Necessarily Incidental Doctrine
    o In cases of interjurisdictional immunity, only need intrusion on exclusive head of power
 Conflict
 Resolution
    o Interjurisdictional Immunity

16
                                                                                                       17
     o   Federal Paramountcy

Double Aspect Doctrine – overlapping jurisdiction allowed
 Derived from Hodge, where JCPC holds that provinces and Parliament can validly legislate on the
   same subject (control of liquor).
 “Some laws may have both federal and provincial purposes” (Swinton, CB 209)
 Mere duplication is not a problem, examples (first 5 from Multiple Access, CB 239, references added)
    o Temperance (Hodge, above in “Characterization” at 11; Local Prohibition Reference)
    o Insolvency
    o Highways (Ross)
    o Trading stamps
    o Aspects of Sunday observance
    o Tobacco advertising (Rothmans)
 Duplication of legislation is evidence for conflict, but not determinative of it (Multiple Access)
 Arguments for and against allowing duplications (Hogg)
    o For: avoiding conflict
    o Against: red tape, not allowing overlap in federalism

Necessarily Incidental (Ancillary Provision) Doctrine
 Permits governments to intrude on each other‟s jurisdiction, as long as the intrusion is necessary to the
   pith and substance of otherwise intra vires legislation (CB 241)
 General Motors Test to determine if a provision is “necessarily incidental” to a valid act.
    1. Does the particular provision intrude on a provincial jurisdiction?
           What is the extent of the intrusion? Significant intrusion necessitates harsher standard be
               applied in step 3.
           Extent of intrusion in General Motors:
               Provision is remedial (provides a remedy) – generally less intrusive
               Scope of action is limited by Act
               Federal encroachment in the area is not unprecedented
    2. If yes, is the entire Act valid (see Pith and Substance Doctrine, above in “Characterization” at 10)
    3. If yes, is the impugned provision sufficiently integrated into the Act so as to make it necessarily
         incidental?
           Spectrum of integration: truly necessary/integral  functionally related  merely tacked on
           Test should be stricter the greater the intrusion onto provincial power
               Minimal intrusion only necessitates a “functional” relationship
           Jurisprudence indicates different standards: “rational and functional connection”(Multiple
               Access); “ancillary,” “necessarily incidental” and “truly necessary”; “intimate connection,”
               an “integral part” and “necessarily incidental”; “integral part”; “context and association”;
               “truly necessary”
 Doctrine not always applied; sometimes provisions are tested individually for their pith and substance
   (Employment Insurance Reference, above in “Characterization” at 12), Court is unclear as to when it
   uses which (CB 247)

Test for conflict (Rothmans)
 Impossibility of dual compliance, express conflict (older, Ross; Multiple Access)
     o “the same citizens are being told to do inconsistent things” (Multiple Access)
 Incompatibility of legislative policies or objectives – „negative implication‟ doctrine (Hall)
 Field occupation – if the federal government wants to exclusively regulate for a field, it only need to
    say so (Hall)
     o Requirement of express declaration?
           Yes Australian example in Ross (obiter)
           No per Hall (might be obiter
     o Not certain whether this doctrine really exists, few cases where this has ever happened, there
          might be a few regarding the Indian Act but those don‟t really relate to our purposes here



                                                                                                       17
18
   In cases of interjurisdictional immunity, only need “impairment” of “basic, unassailable … necessary”
    content of enumerated head of power (Canada Western Bank)


Conflict Resolution in the Constitution Act 1867 (CB 272)
 s 95 – agriculture and immigration, federal paramountcy
 s 92A – natural resources, federal paramountcy
 s 94A – old age pensions and supplementary benefits, provincial paramountcy

Federal Paramountcy Doctrine – Resolution of conflict
 No other written provisions for resolution of conflict (probably stemming from the “watertight
   compartment” view of ss 91 and 92 provisions, Swinton, at CB 209)
    o Paramountcy is a judicially created doctrine to deal with this absence, derived from s 95
         (agriculture and immigration)
 Applies where:
    o Double aspect (both legislation is valid)
    o Conflict (see reasons for conflict above)
 Result of application of Paramountcy
    o Federal legislation is paramount in cases of conflict (Local Prohibition Reference; Hall; Lafarge)
    o Impugned provincial provisions rendered inoperative while federal provisions are in effect (when
         federal provisions are not in effect, the provincial ones are)

Interjurisdictional Immunity
 Heads of power indicate areas of exclusive jurisdiction
 Intrusion into the core of another level‟s head of power is ultra vires
 Most often applies when a generally worded provincial provision touches on a federal area in one
    instance (ex McKay)
     o Provincial power will be read down, so the meaning of the general provision is read to exclude
          instances of conflict (McKay, Bell #2)
     o Often applied where provincial provisions intrude in workings of “federal undertakings” (ex
          federal construction projects, or the workings of federally incorporated companies, Bell #2)
 Extent of exclusive jurisdiction
     o “basic, minimum and unassailable content” (per Bell #2; clarified in Canadian Western Bank)
            Vital or essential part of an undertaking is that which is “absolutely indispensable or
                necessary; extremely important, crucial” (OED, cited in Canadian Western Bank)
            Examples: “works, things or persons under the special and exclusive jurisdiction of
                Parliament” (Bell #2); federal election signs (McKay); minimum wage for federal
                corporations (Bell #1, not briefed below); right to protective reassignment of a pregnant
                worker in federal corporations (Bell #2)
            Not in exclusive jurisdiction: removing debris from beside railway tracks (Canadian Pacific
                Railway v Corporation of the Parish of Notre Dame de Bonsecours, [1899] AC 367 (PC));
                regulation of insurance advertising relating to “piece of mind insurance” (Canadian Western
                Bank); workmen‟s compensation schemes (Workmen’s Compensation Board v Canadian
                Pacific Railway, [1920] AC 184)
 Extent of intrusion
     o “It is when the adverse impact of a law adopted by one level of government increases in severity
          from „affecting‟ to „impairing‟ (without necessarily „sterilizing‟ or „paralyzing‟ that the core
          competence of the other level of government) is placed in jeopardy, and not before” (Canadian
          Western Bank)
     o Bell #2 introduced an expanded definition, requiring only “affecting” exclusive jurisdiction, but
          this is overruled in Canadian Western Bank
 Interjurisdictional immunity should rarely be the doctrine of choice – pith and substance with direct
    conflict resolved by federal paramountcy is more desirable (Canadian Western Bank)
 Arguments against Interjurisdictional Immunity (Canadian Western Bank)
     o Invoked asymmetrically in favour of federal immunity
            Unintentional centralizing tendancy

18
                                                                                                         19
     o    Against the dominant tide of jurisprudence that favours overlapping of jurisdiction (OPSEU v
          Ontario (A-G))
            Limits and frustrates pith and substance and double aspect
     o    Creates uncertainty, because it depends on impugned provision touching on the „core‟ of the head
          of power, and that is hard to define in advance, so not predictable
     o    Increases the risk of creating legal vacuums
     o    Policy argument: many laws are introduced by provinces, and should be applicable to federal
          corporations (protection of workers, consumers, and the environment)
     o    Parliament can always legislate in an area it doesn‟t want its jurisdiction touched, and then rely
          on federal paramountcy to keep the province from legislating in the area

Necessarily Incidental Jurisprudence:


General Motors of Canada v City National Leasing
[1989] 1 SCR 614  CB 396 (also below in “General Regulation of Trade” at 27)
Facts
 s 31.1 of the Combines Investigation Act creates a civil cause of action for infringement of the Act
 CNL (a truck/car fleet leasing company) alleges GM gave “interest rate support” to its competitors, in
    contravention of the Act
Issue
 Is the Act intra vires s 91(2)?
 Though creating civil causes of action is ultra vires Parliament‟s power (falling under property and
    civil rights), is s 31.1 “integrated with the act in such a way” that it is intra vires?
Holding
Provisions are intra vires per the necessarily incidental doctrine.
Reasons (Dickson CJC)
 Because s 31.1 is being challenged (not the whole Act), must first test the validity of the ancillary
    doctrine. Three part test
    1. Does the particular provision intrude on a provincial jurisdiction?
          What is the extent of the intrusion? Significant intrusion necessitates harsher standard be
              applied in step 3.
          Extent of intrusion in the instant case:
                Provision is remedial (provides a remedy), not substantive – generally less intrusive
                Scope of action is limited by Act
                Federal encroachment in the case is not unprecedented
    2. If yes, is the entire Act valid
    3. If yes, is the impugned provision sufficiently integrated into the Act so as to make it necessarily
         incidental?
          Jurisprudence indicates different standards: “rational and functional connection”(Multiple
              Access); “ancillary,” “necessarily incidental” and “truly necessary”; “intimate connection,” an
              “integral part” and “necessarily incidental”; “integral part”; “context and association”; “truly
              necessary”
          Test should be stricter the greater the intrusion onto provincial power
                Minimal intrusion only necessitates a “functional” relationship
          Provision in this case is truly necessary
Ratio
Defines test for necessarily incidental doctrine.




                                                                                                         19
20
Federal Paramountcy Jurisprudence:


AG Ontario v AG Canada (The Local Prohibition Reference)
[1896] AC 348 (PC); rev‟g. (1895), 24 SCR 170  CB 114
Facts
 Ontario introduced a bill – which received widespread support in a plebiscite – almost identical to the
    Temperance Act (see Russell)
 Referred the issue to the Supreme Court, which Ontario appealed to the JCPC
 s 18 of the provincial legislation – allows a local option for prohibition, but restricted to retail sales
Issue
 Did Parl have jurisdiction to enact Canada Temperance Act?
 After that Act became law in every province, was there room for Ontario to enact its provisions?
 Is there a conflict between the legislation?
Reasons
 Parliament cannot encroach on s. 92 powers when using their power to legislate on matters
    “unquestionably of Canadian interest and importance”
 Russell is authoritative in that wherever the provisions of the Temperance Act are in force, they are
    valid because the Parl legislated for “peace order and good government”
    o not valid under “regulation of trade and commerce” because regulation implies trade, not ends it
 Act is intra vires provincial powers per s 92 (16) (purely local matters)
    o Ontario has no right to so legislate under 92 (9) (tavern licensing) because it presupposes a trade,
          and prohibition falls outside this definition
 Enactments of Parl must override Provincial statutes while they are passed within Parl‟s competency
 Conflicts between provincial and federal legislation must be adjudicated by the courts
 The Ontario Act would be of a uniquely local nature, so it is intra vires
 It cannot be in force where the federal Act is, however, because federal overrides provincial
    o Not necessarily a conflict between the Acts because neither is mandatory
Holding
Act is intra vires. Federal laws render provincial laws inoperable when they conflict, but are both
within the legislatures‟ areas of competence (both are valid legislation).


Multiple Access Ltd v McCutcheon
[1982] 2 SCR 161  CB 237, 277
Facts
 MA is a corporation incorporated under the federal Corporations Act
 M and other shareholders brought a claim against executives of the company, accusing them of insider
    trading under the Ontario Securities Act
 The Securities Act and the Corporations Act both have provisions to deal with insider trading
 MA claims that because it is a federally incorporated company, the Securities Act does not apply to it,
    or alternately that it is inoperative because of the Corporations Act
 The Corporations Act has a shorter statute of limitations on claims under it, thus benefiting MA
    because M brought claim after Corporations Act right of claim had expired, but before Securities Act
    right of claim had.
Holding
Both acts are intra vires. Securities Act is operative.
Reasons (Dickson J)
 Must determine validity of both pieces of legislation
     o Must be viewed without reference to the other legislation, validity determined independently
          (contrast with McNeil and Westendorp, which considered the similar federal statute)
     o Federal power over incorporation is defined broadly, including protection of shareholders
     o Both legislation is valid, instance of double aspect doctrine
     o Neither is of more importance than the other, so no reason to kill one and let the other stand
 Is there “conflict in operation,” requiring the Court to invoke federal paramountcy?
     o There is only duplication

20
                                                                                                         21
     o    “Mere duplication without actual conflict or contradiction is not sufficient to invoke the doctrine
          of paramountcy”
      o Legislative purposes are satisfied regardless of which statute is used
      o Can avoid double liability by “cooperation between administrators and the ordinary supervision
          of the courts over duplication of proceedings before them”
          Courts should not authorize proceedings under one Act if they know remedy had been gained
              under the other.
Ratio
Mere duplication does not necessitate paramountcy, as long as legislative objectives are satisfied
regardless. Express conflict or impossibility of dual compliance required to invoke paramountcy.
NB Permissibility of duplication is contrary to Dominion Stores, below in “Interprovincial and
International Trade” at 26, this probably overrules Dominion but does not address it, probably because
they‟re based on vastly different sets of facts and areas of law.


Ross v Registrar of Motor Vehicles
[1975] 1 SCR 5  CB 273
Facts
 R was drunk driving, and sentenced to a license suspension of six months under ss 234, 238 of the
    Criminal Code
     o The judge made an allowance for him to drive to and from work, and consequently ordered the
          Registrar not to suspend his license
 The Registrar suspended his license for three months in accordance with s 21 of the Ontario Highway
    Traffic Act
 R claimed the federal act rendered the provincial one inoperative.
Holding
No conflict, both statutes are valid. Inferior court had no jurisdiction to but these conditions on the
suspension.
Reasons (Pigeon J)
 Licensing is within Provincial jurisdiction (Duff CJC in Provincial Secretary of Prince Edward Island
    v Egan, [1941])
 Criminal Code provision is also valid
     o Judge misinterpreted it; only had the power to limit suspension to particular time and place, but
          not order the province not to suspend his license.
 No impossibility of dual compliance
     o R not enjoying the federal indulgence is not provincial conflict with the federal statute
     o “Civil consequences of a criminal act are not to be considered as „punishment‟”
     o Indulgence granted to R is from the punishment, suspension of license is civil consequence
     o Judge does not require R to drive, he only allows it – therefore he can comply with both
          provincial and federal statutes by following the more severe one.
     o Parliament did not intend to legislate exhaustively on right to drive after conviction, because it
          did not make an explicit statement to that effect
 There is no direct conflict between the legislation, so no need to invoke federal paramountcy.
Ratio
Narrow reading of conflict. Requires express conflict or impossibility of dual compliance.


Bank of Montreal v Hall
[1990] 1 SCR 121  CB 282
Facts
 H got a loan from the bank and in return granted a security interest on a piece of farm machinery per
    the federal Bank Act
 H defaulted, and the bank seized the machine per the Act
 H claims the bank failed to give the requisite notice of its intention to seize the machine, per the
    provincial Limitation of Civil Rights Act
 Bank contends it is not bound by the provincial Act

                                                                                                         21
22
Holding
Conflict, provincial act is inoperative when dealing with seizures made pursuant to the federal act.
Reasons (LaForest J)
 Matter of the relevant section of the Bank Act is to create a uniform system for borrowers and lenders
     that does not need to deal with provincial anomalies.
      o Central to this is the system making it easier for lenders to seize securities immediately.
 Possibility of dual compliance – just give notice.
 “Dual compliance will be impossible when application of the provincial statute can fairly be said to
     frustrate Parliament‟s legislative purpose”
      o Compliance with the provincial act requires waiting before seizure, and since the immediacy of
           seizure is central to the federal act, it is impossible to require compliance with the provincial act
           while upholding the intention of the federal act.
      o Federal legislative purpose is uniformity of regulation
 “Parliament, under its power to regulate banking, has enacted a complete code … There is no room
     left for the operation of the provincial legislation”
Ratio
Paramountcy is triggered by impossibility of dual compliance or incompatibility of legislative purposes.
NB – Hogg disagrees with LaForest J‟s reasoning, as do many others. It is possible for the bank to provide
notice and still seize, so dual compliance is still possible. Subscribes to a narrower reading of conflict than
here.


Rothmans, Benson & Hedges Inc v Saskatchewan
2005 SCC 13  CB 289
Facts
 Federal Tobacco Act allows for posting tobacco product availability and prices.
 Saskatchewan Tobacco Control Act prohibits posting any sort of tobacco advertising, display, or
    promotion of tobacco where persons under 18 are permitted.
 RBH claims provincial act is inoperative by federal paramountcy; in first instance also that provincial
    act violates s 2(b) of the Charter.
Holding
No conflict between the legislation.
Reasons (Major J)
 Matter of federal legislation
     o Purpose is to promote health by not allowing tobacco advertising
     o Federal display standards “define … the prohibition”
     o Parliament did not grant a “positive entitlement to display tobacco products”
 Matter of provincial legislation
     o Protect public health
     o Protect minors
 No impossibility of dual compliance
     o Don‟t let minors on the premises, or don‟t display tobacco if you do.
 No frustration of legislative purposes – they were the same.
     o Provincial only regulates one step farther than Parliament chose to go.
Ratio
Narrower reading of conflict than in Hall. Combines Hall and Multiple Access.

Interjurisdictional Immunity Jurisprudence:


McKay v The Queen
[1965] SCR 798  CB 251
Facts
 M displayed a federal campaign sign in contravention of the municipal by-law
Holding
By-law does not apply to federal campaign signs.


22
                                                                                                          23
Reasons (Cartwright J)
 Wording of the by-law is extremely broad and general, in its prohibition of lawn signs
 Federal elections are federal jurisdiction – they are not a provincial civil right, they are a federal matter
     o Asks whether the by-law specifically touches federal purview, not whether the by-law would
          impair or sterilize integrity of federal elections
 General language of by-law must be read down so as not to include subject matter in federal
    jurisdiction.
Ratio
General provincial provisions will be read down so as not to intrude on federal jurisdiction.



Bell Canada v Quebec (Commission de la santé et de la sécurité du travail)
(Bell #2)
[1988] 1 SCR 749  CB 257
Facts
 Commission fines Bell for not following provincial provisions on right to protective reassignment of a
    pregnant worker
Holding
Impugned provision affects core area of federal jurisdiction, therefore inoperative by interjurisdictional
immunity.
Reasons (Beetz J)
 Summary of rules applicable
      o Legislative jurisdiction over health belongs to provinces per s 92(16)
      o Labour relations and working conditions fall into s 92(13)
      o Labour relations and working conditions are federal jurisdiction when they are an integral part of
          Parliament‟s exclusive jurisdiction, ex over federal undertakings, per the doctrine of
          “interjurisdictional immunity” per Bell Canada 1966 (Bell #1, held minimum wage doesn‟t apply
          to federal undertakings as they render management of Bell impossible per the federal jurisdiction)
      o Provincial workmen‟s compensation schemes are applicable to federal undertakings, per
          Workmen’s Compensation Board v Canadian Pacific Railway, [1920] AC 184)
      o Double aspect theory is not an exception to exclusive legislative jurisdiction, it can only be
          invoked “when it gives effect to the rule of exclusive fields of jurisdiction”
          Does not apply because legislators here have legislated “for the same purpose and in the same
              aspect”
 Exclusivity (interjurisdictional immunity) applies to provincial rules that apply to “works, things or
    persons under the special and exclusive jurisdiction of Parliament” where “such application would bear
    on the specifically federal nature of the jurisdiction”
 Management and labour relations of undertakings are “part of this basic and unassailable minimum”
 “It is sufficient that the provincial statute which purports to apply to the federal undertaking affects a
    vital or essential part of that undertaking, without necessarily going as far as impairing or paralyzing
    it”
Ratio
Provincial provisions only need to affect federal undertakings to invoke interjurisdictional immunity.


Irwin Toy v Quebec (AG)
[1989] 1 SCR 927  CB 263 n4
Facts
 Quebec law stops advertisers from advertising directly at people under 13
 Advertiser says it relates to broadcasting, a federal undertaking
Holding (Dickson CJC)
     Intra vires
 Using the broad standard of Bell #2, Court would negatively impact Quebec‟s ability to pursue distinct
    cultural policies
 “Vital part” test properly determines the scope of IJI when provincial law applies directly to

                                                                                                          23
24
    undertaking
 “Sterilization or impairment” when statute indirectly affects undertaking
 Majority wants to narrow IJI without overturning Bell #2
Ratio
Vital part only for direct interference, sterilization for indirect interference.


Canadian Western Bank v The Queen in Right of Alberta
2007 SCC 22  CB 264
Facts
 Bank (federally incorporated) marketed “piece of mind insurance” in contravention of provincial
     statute
Holding
Regulation is not invalidated by interjurisdictional immunity.
Reasons (Binnie & LeBel JJ)
 Arguments against the doctrine of interjurisdictional immunity
      o Invoked asymmetrically in favour of federal immunity
           Unintentional centralizing tendancy
      o Against the dominant tide of jurisprudence that favours overlapping of jurisdiction (OPSEU v
           Ontario (A-G))
           Limits and frustrates pith and substance and double aspect
      o Creates uncertainty, because it depends on impugned provision touching on the „core‟ of the head
           of power, and that is hard to define in advance, so not predictable
      o Increases the risk of creating legal vacuums
      o Policy argument: many laws are introduced by provinces, and should be applicable to federal
           corporations (protection of workers, consumers, and the environment)
      o Parliament can always legislate in an area it doesn‟t want its jurisdiction touched, and then rely
           on federal paramountcy to keep the province from legislating in the area
 Suggested, restricted approach to interjurisdictional immunity
      o “It is when the adverse impact of a law adopted by one level of government increases in severity
           from „affecting‟ to „impairing‟ (without necessarily „sterilizing‟ or „paralyzing‟ that the core
           competence of the other level of government” is placed in jeopardy, and not before
      o Scope of “core” of head of power is “basic, minimum and unassailable content” (per Bell #2)
           Vital or essential part of an undertaking is that which is “absolutely indispensable or
               necessary; extremely important, crucial” (OED)
 Interjurisdictional immunity should rarely be the doctrine of choice – pith and substance with direct
     conflict resolved by federal paramountcy is more desirable
Ratio
Interjurisdictional immunity is limited to provisions impairing absolutely necessary aspects of federal
undertakings.


British Columbia (AG) v Lafarge Canada
2007 SCC 23  CB 271 n2-3, also on WebCT
Facts
 Lafarge built a cement plant on grounds of a shipping terminal
 City says it needs a municipal licence
 L says IJI applies because terminal relates to navigation, which is federal
Holding
Terminal is federal, but does not extend to cement plant, so no IJI here.
Reasons (Binnie & LeBel JJ)
 IJI should not be used where, as here the legislative subject matter (waterfront development) presents a
    double aspect
 Will use paramountcy because it is in line with the trend in jurisprudence, IJI isn‟t




24
                                                                                                        25
Economic Regulation
Extent of Property and Civil Rights
   Effects of legislation must be intra vires the heads of power
   Decisions on whether legislation falls into 91(2) or 92(13) hinge on the extent to which the legislation
    touches on international and interprovincial trade
   Provincial legislation can “affect” interprovincial trade and commerce (Carnation), but cannot be
    made “in relation” to it (Manitoba Egg and Poultry Reference)
     o Intention of the legislation must be to regulate intraprovincial legislation
     o If the overwhelming intention of the legislation touches on interprovincial trade, it is ultra vires
         provincial powers
   The court will privilege instances of federal-provincial cooperation (Re Agricultural Products
    Marketing Act)


Carnation Co v Quebec Agricultural Marketing Board
[1968] SCR 238, 67 DLR (2d) 1  CB 356
Facts
 Quebec statutes allows producers to create joint marketing boards to bargain collectively for prices
 Statute provided for a board of arbitration
 C argues the products for which the statutory agency set prices will mostly be sold outside the
     province, impugning s 91(2) (federal regulation of trade and commerce)
Reasons (Martland J)
 This is “analogous to the creation of a collective bargaining agency in the field of labour relations”
 Statute must do more than just “affect” interprovincial trade and commerce, its aim must be “in
     relation to” (aimed at) regulation of interprovincial trade and commerce
 Orders in question “did not purport directly to control or to restrict such trade [interprovincial]. There
     was no evidence that, in fact, they did control or restrict it.”
Holding
Board‟s actions intra vires. Statute only “affects” interprovincial trade and commerce. Would be ultra
vires if it was specifically made “in relation to” interprovincial trade and commerce.


AG Manitoba v Manitoba Egg and Poultry Association (Manitoba Egg and
Poultry Reference)
[1971] SCR 689  CB 360
Facts
 Manitoba legislation creates a Marketing Board, which has complete control over marketing of eggs in
     Manitoba regardless of origin (pricing, retail, etc)
Reasons (Martland J)
 “Plan now in issue not only affects interprovincial trade in eggs, but that it aims at the regulation of
     such trade”
 scheme is on its face in contravention of s 91(2)
Holding
Board is ultra vires. Legislates “in relation to” interprovincial trade and commerce, rather than just
“affecting” it


Re Agricultural Products Marketing Act
[1978] 2 SCR 1198 CB 365
Facts
 Legislation in question is Ontario‟s side of a joint federal-provincial solution to the problems resulting
    from Manitoba Egg and Poultry
 Scheme provided for quotas for each province and each egg producer


                                                                                                        25
26
Reasons (Pigeon J)
 Control of production is a matter falling within provincial jurisdiction (interpretation of Carnation)
 Marketing does not extend to production, so Manitoba Egg and Poultry does not challenge this
    interpretation of Carnation
 Provinces cannot use control over local matters to affect extraprovincial marketing
 Above does not prevent “use of provincial control to complement federal regulation”
Holding
Act is intra vires. Court will privilege cooperation between federal and provincial legislatures.

Natural Resources
s 92A
 Added to Constitution Act 1982
 Gives provinces additional powers over natural resources
 Authorizes “provinces to legislate for the export of resources to other provinces subject to Parliament‟s
    paramount legislative power in the area, as well as to permit indirect taxation in respect of resources so
    long as such taxes do not discriminate against other provinces.” (From Laforest J in Ontario Hydro v
    Ontario (Labour Relations Board) at CB 379)


CIGOL v Government of Saskatchewan
[1978] 2 SCR 545  CB 370
Facts
 Saskatchewan passes legislation charging a tax on oil at the wellhead (100% of the difference between
     pre-OPEC crisis prices and the market value), as well as a “royalty surcharge” on oil producing lands
 C (appellant) contends
     o “mineral income tax” and “royalty surcharge” are indirect taxation, and therefore ultra vires per s
          92(2)
     o legislation relates to regulation of interprovincial and international trade and commerce (federal
          jurisdiction per s 91(2))
Reasons (Martland J)
 Tax is indirect, because it is ultimately born by the consumer, hence ultra vires
 Instant case is different from Carnation because in Carnation product was bought by a Quebec
     company from Quebec producers; here it 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”
 Dickson J, dissenting, finds the tax and the legislation only for raising provincial revenue, which is
     intra vires.
Holding
Ultra vires. Legislation designed specifically to affect extraprovincial oil prices. Even when acting in good
faith, provinces cannot step outside their jurisdiction.
NB: Court‟s economic logic here (esp. re: indirect taxation, and extraprovincial implications) is widely
challenged.


Central Canada Potash Co v Government of Saskatchewan
[1979] 1 SCR 42  CB 375
Facts
 Sask passes legislation to control potash production through licenses
 CCP was prevented from obtaining a license, claims the legislation is ultra vires per s 91(2)
 There is hardly any Sask market for potash
 Sask contends “the mineral wealth of the Province was subject to provincial regulatory control alone”
Reasons (Laskin CJC)
 Natural resource production controls and conservation are, as a rule, Provincial jurisdiction
 Here Sask is operating in a regulatory capacity, rather than as proprietor of the resources (intra vires)
 The circumstances here clearly indicate intent to regulate intraprovincial, and especially international
    trade.

26
                                                                                                           27
    Even though the legislation is made in good faith, provinces “have no open-ended means of achieving
     their goals when there are constitutional limitations on the legislative power” of those governments.
Holding
Legislation is ultra vires. Legislation designed specifically to impact international and interprovincial
trade.

Trade and Commerce s 91(2)
Interprovincial and International Trade
   One of the two branches s 91(2) identified in Parsons (above in “Scope of Powers” at 14)
   Regulation of interprovincial trade must be the intention of the legislation – national purpose (Klassen)
   Regulation of intraprovincial trade, touching on 92(13), is intra vires Parliament if the intraprovincial
    effects are necessarily incidental to the federal legislative purpose (Klassen)
     o Key is whether the system would be undermined if the intraprovincial aspects are invalid
          (Klassen)
   Parliament cannot regulate trade that is exclusively intraprovincial (Dominion Stores)


The Queen v Klassen
(1960), 20 DLR (2d) 406  CB 382
Facts
 K received grain at his mill and did not report it per regulations in the Canada Wheat Board Act
 K claimed the wheat was most likely never to leave Manitoba, though he couldn‟t prove it
 Act dealt with elevators and mills as “works to be in the general advantage of Canada” but since his
     most likely did not supply the interprovincial or international market, the act was ultra vires in respect
     to his mill.
Reasons
 Act touches on property and civil rights within the province, but in a way that is necessarily incidental
     to the functioning of the regulation of trade and commerce for the country as a whole
     o Pith and substance “affects” property and civil rights, it is not “in relation to” them.
 Allowing local exceptions would ruin the framework set out in the act
Holding
Act is intra vires (leave to appeal to SCC denied). Federal legislation can touch upon property and civil
rights, as long as that aspect is necessarily incidental to a cause intra vires federal jurisdiction.


Caloil v AG Canada
[1971] SCR 543  387
Facts
 Federal government passed a regulation limiting gasoline imports, whereby those places west of a line
    in Ontario and Quebec could not import from Saudi Arabia.
 Caloil was denied a license for violating the Act.
 Parliament passed another law, focusing it exclusively on imports
 Caloil was again denied a license, again claimed the Act contravened s 92(13) (property and civil
    rights)
Reasons (Pigeon J, for a unanimous court)
 Impugned Act only regulated imported oil, for the benefit of a province
 “Under the circumstances, the interference with local trade restricted as it is to an imported
    commodity, is an integral part of the control of imports in the furtherance of an extra-provincial
    trade policy and cannot be termed „an unwarranted invasion of provincial jurisdiction‟”
Holding
Act is intra vires. Federal government can regulate imports, and interprovincial trade, as long as in
touching on provincial jurisdiction it is incidental.




                                                                                                           27
28
Dominion Stores v The Queen
[1980] 1 SCR 844  388
Facts
 Federal government makes the designation “Canada Extra Fancy” that can be used for apples that meet
     certain criteria (contained in the Canada Agricultural Products Standards Act)
 Wholly intraprovincial sales could only be caught by the law if the seller chose to use the designation
 Dominion Stores sells bruised apples in contravention of the Act
 Act closely mirrors an Ontario statute of similar description
Reasons (Estey J)
 Even under s 91(2), the federal government cannot regulate wholly intraprovincial matters
 It is preferable that only provincial statutes regulate intraprovincial trade, so as to avoid needless
     overlapping – regulatory duplication (this piece of reasoning is likely overruled later in Multiple
     Access, above in “Conflict” at 14)
 Marketing schemes are not the same as “creation of a property right in the form of a trade mark”
Holding
Act is ultra vires. Parliament cannot legislate a marketing scheme that is focused on exclusively
intraprovincial trade.

General Regulation of Trade
   Doctrine has origins in Parsons (see above), as the second of the two-branched power contained in
    s 91(2)
   Swinton (CB 390-1) argues federal power over “general regulation of trade” as opposed to
    interprovincial and international trade was first asserted in the 1976 with Macdonald v Vapor Canada
    o “General regulation of trade” isn‟t as easy to distinguish from “property and civil rights” as is
         interprovincial trade and commerce  often the scheme will touch on exclusively intraprovincial
         affairs
   The doctrine of general regulation of trade requires that “inquiry must be directed to whether the
    federal measure regulates a national economic problem of interest to the whole country, even if it
    does so at the stage of production or retailing in a province.” (CB 391, bottom)
   General Motors Test for validity of legislation under General Regulation of Trade (General Motors)
    1. The impugned legislation must be part of a general regulatory scheme
    2. Scheme must be monitored by the continuing oversight of a regulatory agency
            Imposes duty that if Parliament wants to regulate under this power, it must actually regulate
    3. Must be concerned with trade as a whole rather than a particular industry (Labatt)
    4. Provinces constitutionally incapable of enacting similar legislation (jointly or severally)
    5. Failure to include one or more provinces or localities in a legislative scheme would jeopardize
         the successful operation of the scheme in other parts of the country

Labatt Breweries of Canada v AG Canada
[1980] 1 SCR 914  CB 392
Facts
 Federal Food and Drugs Act requires certain foods, etc, to be labelled, and that if a food is labelled one
     of those enumerated, it must conform to the regulations for that food
 Labatt marketed “Special Lite Beer” that did not conform to the standards for light beer (it had too
     much alcohol)
 L argued the provision was ultra vires
Reasons (Estey J)
 Regulation only concerned “production and local sale of the specified products of the brewing
     industry”  does not regulate interprovincial trade
 Only concerned with a single industry at a time
 Was not regulation of trade and commerce “in the sweeping general sense” contemplated in Parsons
 Dissent (Laskin CJC) – purpose is to equalize regulations across the country
     o Can argue for general trade and commerce because there is a concern for common standards
Holding
Act is ultra vires. Regulation under s 91(2) must be general, not aimed at a specific industry


28
                                                                                                       29
General Motors of Canada v City National Leasing
[1989] 1 SCR 614  CB 396
Facts
 s 31.1 of the Combines Investigation Act creates a civil cause of action for infringement of the Act
 CNL (a truck/car fleet leasing company) alleges GM gave “interest rate support” to its competitors, in
     contravention of the Act
Issue
 Is the Act intra vires s 91(2)?
 Though creating civil causes of action is ultra vires Parliament‟s power (falling under property and
     civil rights), is s 31.1 “integrated with the act in such a way” that it is intra vires?
Holding
Intra vires
Reasons (Dickson CJC)
 Because s 31.1 is being challenged (not the whole Act), must first test the validity of the ancillary
     doctrine. Three part test
     4. Does the particular provision violate a provincial jurisdiction?
     5. If yes, is the entire Act valid (see test below)
     6. If yes, is the impugned provision sufficiently integrated into the Act so as to make it necessarily
          incidental?
 To answer step 2, must see if the legislation in general is valid.
 Trade and commerce has 2 branches per Parsons – interprovincial/international, and general regulation
 Test for validity under the second branch of 91(2)(general regulation of trade)(first three from Laskin
     CJC in MacDonald v Vapor Canada [1977] 2 SCR 134, second two from Dickson J‟s concurrence in
     AG Can v Canadian Natonal Transportation [1983] 2 SCR 206  at CB 400)
     1. The impugned legislation must be part of a general regulatory scheme
     2. Scheme must be monitored by the continuing oversight of a regulatory agency
     3. Must be concerned with trade as a whole rather than a particular industry
     4. Provinces constitutionally incapable of enacting similar legislation (jointly or severally)
     5. Failure to include one or more provinces or localities in a legislative scheme would jeopardize
          the successful operation of the scheme in other parts of the country
 Despite the test, the approach must be case-by-case, as suggested in Parsons
 Instant clause encroaches on provincial powers, but it is incidental
 Also passes all steps of the test
 “competition cannot be effectively regulated unless it is regulated nationally” (CB 404)
Ratio
Establishes validity test under “general regulation” branch of s 91(2).


Kirkbi AG v Ritvik Holdings Inc
[2005] 3 SCR 302  CB 408
Facts
 K owns LEGO, for which the Canadian patent expired
 R owns Mega Bloks, which after the LEGO patent expired, made pieces that were interoperable with
    LEGO
 K contests that LEGO indicia (the configuration of 8 studs, etc) is an unregistered trademark
 K claimed infringement under s 7(b) of the Trade-marks Act which creates a civil cause of action for
    infringement (codifying the tort of passing-off), including cases of unregistered marks
 R contends that s 7(b) is ultra vires because it is not linked to the trademark registration scheme
Reasons (LeBel J)
 Patents and copyrights explicitly federal under s 91(22) and (23); also via s 91 (2) second branch
 References the General Motors test, and holds the legislation passes the test
 “The protection of unregistered trademarks is integral to the legitimacy, legal standards, and efficacy
    of registered trademarks” (CB 412) – satisfies step 3 of the ancillary doctrine test from General Motors
    o Trademark Act is concerned with trade as a whole – apply across and between industries in

                                                                                                       29
30
         different provinces
    o    Applies step five of General Motors – interprovincial irregularities would ruin the scheme,
         therefore Trademark Act is general trade
Ratio
Impugned section is intra vires. Invalidation would create destroy the efficacy of the regulatory scheme.

Peace, Order and Good Government
   Parliament has reserve power, derived from the preamble to s 91, providing it the power to regulate for
    the “peace, order and good government” of the Dominion
   Three applications
     o Filling gaps in the constitution (Hogg)
           Federal crown corporations (s 91(11) only provides for provincial ones)
           Federal power to conclude international treaties (s 132 only provides for Canada‟s
              involvement in Imperial treaties)
           Bilingualism in the federal civil service (nothing mentioned in the constitution about
              administrative agencies)
           Offshore minerals (POGG interpreted to mean provinces don‟t have extraterritorial
              jurisdiction)
     o Emergency Powers
           Early-mid 20th C, the JCPC essentially limits POGG to emergency powers.
     o Matters of National Concern

Emergency Powers
   Characteristics of legislation under POGG – emergency powers branch:
    o Time limited
    o Broad scope
    o Can contain some provincial opt-out provisions (Anti-Inflation)
    o Can use specifically enumerated powers (s 91) as springboards for emergency powers (Majority in
        Anti-Inflation)
   Courts will defer to Parliament’s judgement that there is an emergency
    o Only must have a rational basis for declaration
    o Might not need specific declaration of emergency (Held by majority in Anti-Inflation, not by the
        dissent)
   Emergencies Act 1988 (Emergencies Act, RSC 1985, c 22 (4th Supp), enacted SC 1988, c 29 at CB
    327)
    o Definition of emergency:
         Temporary nature
         Endangers lives, health or safety of Canadians
         Threatens ability of the federal government to preserve sovereignty, security and territorial
             integrity
         Cannot be dealt with under any other law of Canada
    o Invocation must include an express declaration of emergency (responding to Beetz J in Anti-
        Inflation)



Reference Re Anti-Inflation Act
[1976] 2 SCR 373  CB 303
Facts
 Parliament proposed legislation to deal with stagflation that included, in the name of controlling
     inflation, wage and price controls
 Government justified it under the emergency powers branch of POGG
 Preamble contained strong language, indicating it was a “serious” situation, but not expressly stating it
     was an “emergency”
Holding
Intra vires

30
                                                                                                     31
Reasons (Laskin CJC)
 If legislation is sustained under the emergency powers branch of POGG it needn‟t be justified under
    broader grounds
 Preamble gives sufficiently clear indication the government sees the matter as an emergency, though it
    is not explicitly stated as such
 Court will defer to Parliament‟s determination that there is an emergency, as long as that determination
    is made on a rational basis
 Enumerated heads of power can act as springboards for POGG powers
 Emergency POGG powers are very broad, and can only be enacted for a limited period of time
Dissent (Beetz J)
 Inflation is too broad field, can render provincial power inoperative
 Characterization of legislation must look beyond the title, into the effects and the scale of effects
 Pith and substance is property and civil rights
 As an aggregate of several subjects, it lacks specificity, and should be viewed under the heads of
    power of the separate parts
 Because of the sweeping powers given under emergency powers, Parliament must be explicit in
    signalling its determination of an emergency

National Concern
   Second branch of POGG
   Limited scope of application, powers not as broad as under Emergency Powers
   Crown Zellerbach Test
    1. Must be distinct from the emergency branch of POGG (emergency power has a time limit)
    2. Applies to matters that are new since Confederation, or things that have changed in nature to move
        from provincial concern to national.
    3. Must have “singleness, distinctiveness and indivisibility” that clearly distinguishes it from
        provincial concerns
         Pollution is indivisible (Crown Zellerbach)
         “The environment” is too broad – it can be broken into different aspects that can be regulated
            under the heads of power (Oldman River)
    4. Are one or many provinces unable to regulate the matter sufficiently to prevent extra-provincial
        consequences?


R v Crown Zellerbach Canada
[1988] 1 SCR 401  CB 323
Facts
 CZ moved some wood waste from the bottom of an ocean inlet near the shore, to a deeper part of the
    inlet some metres seaward.
 Though salt water, the inlet is entirely within provincial territorial powers
 Federal government prosecutes under the Ocean Dumping Control Act which prohibits dumping in
    marine waters to prevent harm to the marine environment
Issue
Can the federal government “control the dumping in provincial waters of substances that are not shown to
have a pollutant effect in extra-provincial waters”?
Holding
Yes
Reasons (LeDain J)
 To fall under the “national concern” branch of POGG, the issue must pass a test
    1. Must be distinct from the emergency branch of POGG (emergency power has a time limit)
    2. Applies to matters that are new since Confederation, or things that have changed in nature to move
         from provincial concern to national.
    3. Must have “singleness, distinctiveness and indivisibility” that clearly distinguishes it from
         provincial concerns
    4. Are one or many provinces unable to regulate the matter sufficiently to prevent extra-provincial
         consequences?

                                                                                                     31
32
    Impossibility to delineate visually the boundary between “territorial sea” and “internal marine waters”
     gives marine pollution a “singleness, distinctiveness and indivisibility”
 Marine pollution is predominantly extra-provincial and international in character and implications
 Because territorial waters fall within federal jurisdiction, the provinces are incapable of legislating on
     the matter.
 In order for a matter to fall within POGG power, it “must have ascertainable and reasonable limits, in
     so far as its impact on provincial jurisdiction is concerned.” (from Re Anti-Inflation Act)
     o “Marine pollution” is sufficiently bounded to satisfy this concern
Dissent (LaForest J)
 Federal government has power under fishery regulation to prohibit dumping substances wherever they
     might harm fish – this is not the case here
 “To allocate the broad subject matter of environmental control to the federal government under its
     general power would effectively gut provincial legislative jurisdiction” because “environmental
     control” is all-encompassing, since consequences of actions are environmentally so broad
 The line between salt and fresh water cannot be clearly delineated, so the subject matter fails part 3 of
     the test.
 Impugned provision “seeks to deal with activities that cannot be demonstrated either to pollute or to
     have a reasonable potential of polluting the ocean.”
Ratio
To be valid under national concern branch of POGG, subject must demonstrate a “singleness,
distinctiveness and indivisibility”


Friends of the Oldman River Socity v Canada (Minister of Transport)
[1992] 1 SCR 3  CB 324
Facts
 Department of the Environment Act required all departments to screen any projects that might have an
     adverse impact on the environment, and if serious, do an environment assessment
 Minister of Transport approved a dam on the Oldman River without doing an assessment
 F brought an action to quash the decision to build the dam, citing the Act
Issue
Can Parliament legislate broadly to control the “environment”
Holding
No
Reasons (LaForest J)
 Control of the environment is too broad and diffuse to satisfy the “distinctiveness” required by
     Crown Zellerbach test
 The matter is so broad as to allow provinces to regulate some aspects and Parliament to regulate others,
     and still have a coherent regulatory scheme
 Because environment can be divided into these different parts, it does not satisfy “indivisibility”
Ratio
Where issues can be divided into parts and regulated by federal and provincial legislation, they are not
sufficiently indivisible to pass the national concern test.


Criminal Law
   Federal power per s 91(27)
   Why federal?
     o Unifying force (LeClair)
     o Historical reasons – Quebec Act 1774
   Difference from POGG
     o POGG – limited scope, broad form (not even necessary to declare emergency explicitly – Anti-
         Inflation)
     o Criminal – broad scope (can cover “environment,” compare Oldman River to Hydro Quebec),
         limited form


32
                                                                                                      33
   Content – must have “valid public purpose” (Margarine Reference)
     o Health (RJR Macdonald), pollution/environment (Hydro Quebec), morality, security, peace,
        public order, abortion (Morgentaler), consequences of drunk driving (Ross, above in “Conflict”)
     o Not valid public purpose
          Colourable attempts to intrude on provincial jurisdiction
          Ex. Regulation of property and civil rights (Margarine Reference)
   Form (Proprietary Articles Trade Association v Canada (A-G), [1931] 2 DLR 1)
     o Prohibition
          Parliament has power to create new crimes – criminal law not “frozen” in time (RJR
              Macdonald)
          Cannot be regulatory, must be prohibitory
              Can have a complex regulation scheme, as long as the regulatory nature is not central to
                  the criminal purpose (Firearms Reference)
              Can include regulatory apparatus, as long as there is no “undue discretion” – regulator
                  should not define prohibition (Firearms Reference), but can at times (Majority seems
                  fine with it in Hydro Quebec, compare to dissent)
          Can use a „circuitous path‟ to the valid policy goal, does not need to prohibit the entirety of
              the evil at which it is directed (RJR Macdonald)
          Prohibitions can have exemptions
              “exemption helps to define the crime by clarifying its contours” (RJR Macdonald)
     o Penalty


Reference re Validity of Section 5(A) of the Dairy Industry Act (Margarine
Reference)
[1949] SCR 1  CB 422
Facts
 Federal Dairy Industry Act makes it illegal to import any margarine made with any fat other than milk
    or cream
 Provides sanctions
 Parliament claims it is criminal legislation
Holding
Ultra vires (Upheld by JCPC)
Reasons (Rand J)
 Criminal laws must specify a prohibition and a penalty (Proprietary Articles Trade Association v
    Canada (A-G), [1931] 2 DLR 1)
 Must identify the evil intended for prohibition; may social, economic, or political
    o Criminal legislation must have “a public purpose which can support it as being in relation to
         criminal law”
    o All actions might be viewed as criminal law if Parliament forbids them, but this is too broad a
         definition to satisfy distribution of legislative powers in Canada.
    o This legislation is primarily to protect the dairy industry, not a criminal purpose, and as such
         touches more on property and civil rights, and it relates to a single industry.
    o Colourable purpose – usurp jurisdiction from the provinces.
Ratio
Criminal law must have a prohibition and a penalty, and a “public purpose which can support it as being in
relation to criminal law”. Cannot be a colourable attempt to encroach on provincial jurisdiction.


RJR MacDonald Inc v Canada (A-G)
[1995] SCR 199  CB 425
Facts
 Tobacco Products Control Act prohibits all advertising and promotion of tobacco products, and
    requires display of health warnings
 Exemption provided for advertising of foreign products in foreign publications
 Provided for a penalty (summary conviction or indictment, penalties including jail time or fine)

                                                                                                      33
34
    RJR challenged it as a violation of ss 92(13) and (16) (property and civil rights; local matters); also
     that it violated freedom of expression under s 2(b) of the Charter
Holding
Intra vires, but central provisions have no force and effect for violation of s 2(b).
Reasons (LaForest J)
 Criminal power is “plenary in nature”
 Prohibition and sanctions are prima facie indications of criminal law (PATA)
 Concern for public health is valid public purpose – criminal law can safeguard the public from any
     “injurious or undesirable effect”
     o Must not be a covert or „colourable‟ intrusion on provincial jurisdiction
 Parliament has the power to create new crimes, because criminal law is no “frozen as of some
     particular time”
 Parliament is allowed to choose a “circuitous path” to accomplish its goals, as long as they are valid
     (here it would be impractical to outlaw sale of tobacco, so this is a second-best option)
     o Prohibition of advertising and sales without warnings is an extension of power to prevent sale
          itself
 Criminal law may have exemptions without losing its status as such
     o Scope of criminal law power is very broad, as long as there is no colourable purpose
     o “exemption helps to define the crime by clarifying its contours”
Dissent (Major J)
 Requirement of a “typically criminal purpose” means Parliament cannot prohibit advertising
 Crimes must interfere with soceity‟s functioning to a serious degree, tobacco use does not
 Parliament cannot criminalize advertising while it “has declined to criminalize the underlying activity
     of tobacco use”  Exemption is too broad
Ratio
Parliament can define new crimes; crimes may have exemptions; criminal power is read broadly.


R v Hydro-Québec
[1997] 3 SCR 213  CB 433
Facts
 Environmental Protection Act establishes a process for dealing with toxic substances
     o Minister complies a list of substances that are dangerous or will have a long-term harmful effect
          on the environment
     o A substance goes through successive stages of review, then can be placed on the List of Toxic
          Substances and come under regulatory control of s 34 of the Act – substance is effectively
          prohibited
 Act provides for penalties
 Hydro-Quebec was charged under the Act with emitting PCBs
 Crown defends Act as both criminal, and national concern under POGG
Holding
Intra vires.
Reasons (LaForest J)
 Environmental matters must be dealt with provincially and federally
 If the Act is criminal law, Court need not consider POGG aspect
 Criminal power is “plenary in nature” (RJR MacDonald)
 Legitimate public purpose must underlie the prohibition, not a colourable attempt to interfere with
     provincial jurisdiction
     o “Protection of a clean environment is a public purpose” – pollution can be the evil Parliament
          seeks to suppress
     o “The purpose of the criminal law is to underline and protect our fundamental values” – protection
          of environment is a fundamental value
     o Criminal power “Not frozen in time” (RJR MacDonald)
     o though this particular legislation does not deal with protection of the environment generally but
          just dangerous substances (compare to POGG power where environment isn‟t valid subject matter
          – Oldman River)

34
                                                                                                        35
     Is there prohibition?
      o Limited prohibition applicable to a limited number of substances
      o Silence re: dissenting argument on administration seems to indicate prohibitions can be
           administered by administrative agencies
Dissent (Lamer CJC and Iacobucci J)
 Seeks only to regulate environmental pollution, not proscribe it
 Criminal law is self-applied by the people to whom it is addressed, not applied at the whim of an
      administrative case (Hogg)
      o Putting the definition of prohibitions in the hands of administrative bodies
      o Nothing is prima facie prohibited by the legislation
      o Criminal law cannot be regulation
 There is no general prohibition
Ratio
Environment is valid purpose for criminal law.
NB: Because the majority does not respond to the dissent on the issue of administration of prohibitions, this
is a strange precedent.


Reference Re Firearms Act
[2000] 1 SCR 713  CB 445
Facts
 Firearms Act (SC 1995, c 39) amended existing Criminal Code provisions regarding firearms, created
     a licensing system for possession of firearms, and created a national regulation system for firearms
     (incl. „ordinary firearms‟ like rifles and shotguns.
 Alberta challenged Parliament‟s ability to pass the legislation in a reference to the Alberta Court of
     Appeal
     o Argues scheme is regulatory because of the complexity of the legislation, and the discretion given
          to the chief firearms officer
     o Claims it is indistinguishable from provincial regulation of cars and land title
Holding
Intra vires
Reasons
 Law has criminal law purpose: guns pose a risk to society, and the law is limited to restrictions
     directed at safety purposes
 Criminal form (prohibition and penalty): s 112 prohibits possession without registration, and s 139
     amends the Criminal Code to prohibit possession of a firearm without a license and registration
     certificate. The prohibitions are backed by a penalty outlined in s 115 of the Act
 Regulatory nature (response to dissent in Hydro Quebec – confusion in the law)
     o Complexity of Act does not detract from criminal nature (ex. Food and Drugs Act)
     o No “undue discretion” granted to the agency
     o Offences are not defined by administrative body (avoiding dissent in Hydro Quebec) – clearly
          stated in the Code
     o Enforcement of offences is not at the discretion of the agency
 Distinguished from provincial regulation because firearms are not regulated as property, but as
     dangerous weapons, and firearms are more likely used in violent crime, not cars
 Holding will not upset federal-provincial balance of power: “the question is not whether such a
     balance is necessary, but whether the 1995 gun control law upsets that balance”
     o Act does not hinder provinces‟ ability to regulate property and civil rights aspects of guns
     o does not precipitate federal entry into new area – guns were already federally regulated
Ratio
Administrative aspects do not preclude criminal form or purpose (key to consider administrative
discretion). Criminal law cannot hinder provinces‟ right to legislate on s 92 heads of power.




                                                                                                        35
36
Provincial Power to Regulate Morality
   Provinces can regulate public morals under 92(13) or 92(16) (property and civil rights, matters of a
    purely local nature); can also provide for penalties 92(15)
     o Recognizes diversity of tastes in Canada (McNeil)
     o Must be preventative, not penal (McNeil, Westendorp)
     o Cannot be a colourable intrusion on federal criminal power (Westendorp)


Re Nova Scotia Board of Censors v McNeil
[1978] 2 SCR 662  CB 452
Facts
 Theatres and Amusements Act creates a censor board, that can permit or prohibit showing of films, and
     provides penalties for non-compliance (fine and revocation of license)
 McNeil showed Last Tango in Paris despite its being banned
Holding
Intra vires
Reasons (Ritchie J)
 Regulates a specific industry (film) in a purely local sense, and “dealings in and the use of property”
 Preventative rather than penal - “not concerned with creating a criminal offence or defining its
     punishment”
 Morals are diverse in Canada, and therefore fall under local jurisdiction
Dissent (Laskin CJC)
 Board is asserting authority to protect public morals – criminal power (exclusively federal)
     o Valid criminal purpose precludes provincial regulation
 Board “itself defines and determines legality … [this] is a direct intrusion into the field of criminal
     law”
Ratio
Legislation is not criminal when it is preventative rather than penal. Morals can be of local concern.


Westendorp v The Queen
[1983] 1 SCR 43  CB 456
Facts
 W was charged with “being on a street for the purpose of prostitution” in contravention of a Calgary
    bylaw
 Bylaw generally controlled use of the streets
 Only specific provision dealt with prostitution
 W claimed the bylaw invaded federal criminal law power
Holding
Ultra Vires
Reasons (Laskin CJC)
 The impugned section clearly stands out from the bylaw as a whole – “it is specious to regard s 6.1 as
    relating to control of the streets”
 “Patently an attempt to control or punish prostitution” – no property question here
 Must prevent Provinces and municipalities from cloaking legislation in heads of power to usurp
    criminal law power (slippery slope – might use control of the streets to punish drug trafficking, assault)
Ratio
Cannot cloak criminal prohibitions in s 92 heads of power.

Federalism and Race
   Rights were protected by the basic idea of federalism – separating French Catholics and English
    Protestants
     Issue also arises when courts ruled on the division of powers, and vicariously, rights
   1870s until the mid-20th C many groups were targets of discriminatory legislation
     immigration restrictions (prohibitions, taxes, language tests)

36
                                                                                                      37
       denial of the franchise or eligibility for public office (Tomey Hama)
       restrictions on economic competition with discriminatory license requirements, and prohibitions
        on employment (Union Colliery; Quong Wing)
   Most of the discriminatory legislation was passed in BC, especially re: fisheries and coal mining
    (Union Colliery; Tomey Hama)
     Challenged on division-of-of powers grounds
   Notions of racial hierarchy underlay many decisions
     Racial difference did not preclude people from employment, since all races could be employed
     It did preclude other things, ex. voting, employing white women, because those were seen to be
        racially differentiated abilities
     “Provincial laws imposing racial disabilities were held to be valid when they were believed to rest
        on accurate assumptions about racial difference (B Ryder, CB 687)



Union Colliery Co v Bryden
[1899] AC 580 (PC)  CB 684
Facts
 BC amends a law prohibiting boys, girls, and women from working in mines to include a prohibition
    on “Chinamen” working in mines
 A shareholder brought suit against Union Colliery with intent the amendment be declared ultra vires
Reasons
 JCPC says the matter is one of jurisdiction, not content of legislation (citing legislative freedom)
 “Chinamen” most likely refers to aliens or recently naturalized aliens  federal jurisdiction
 Dominion has exclusive power over all consequences of naturalization – s 91(25)
Holding
Act is ultra vires. Parliament has power over direct consequences of naturalization (employment).


Cunningham v Tomey Homma
[1903] AC 151 (PC)  CB 686
Question
 BC passed a law removing the franchise from Japanese
 Claim is that the subject is ultra vires because ss 91 and 92 make aliens federal jurisdiction
Reasons
 Union Colliery doesn‟t necessarily apply, because it was about whether Chinese had the right to earn a
    living in the Province in the way they wished, not about suffrage
 Dominion does not have exclusive jurisdiction over the consequences of naturalization – was not the
    implication in Union Colliery (reread of Union Colliery)
     Dominion decides what counts as being naturalized, and the rights and obligations there-attached,
         but not privileges attached to it “where these depend upon residence, and are quire independent of
         nationality”
     Ability to work in a place is a right (therefore federal), suffrage is a privilege
 Laws in the past have excluded people from the franchise without a problem
Holding
Law is intra vires. Parliament does not have exclusive jurisdiction over consequences of naturalization.
Where privileges depend on place of residence, they are local (provincial).


Quong Wing v The King
[1914], 49 SCR 440, 18 DLR 121  CB 688
Facts
 Sask passed an Act prohibiting Orientals from employing white women
 Quong Wing employed two white women as waitresses at his restaurant
 He appealed on the grounds that the Act was ultra vires per s 91(25)


                                                                                                      37
38
Reasons
 Cunningham makes it clear s 91(25) does not deal with the consequences of naturalization
 The Act deals with “property and civil rights” within the province
 “There is no inherent right in any class of the community to employ women and children which the
    legislature may not modify or take away altogether”
 the object of the Act was the “protection of white women and girls”
 (Idington J dissenting)  equal freedom and opportunity are “characteristic of the tendency of all
    British modes of thinking” so the legislation can only apply to Orientals who are not naturalized
Holding
Legislation is intra vires. s 91(25)(aliens and naturalization) does not deal with the consequences of
naturalization.

Flexible Federalism
Banting, “Social Union” at CB 464
 Building the postwar welfare state involved building a social union
    o Set of understandings about the balance between federal and provincial social programs, and a set
         of intergrovernmental arrangements to give those understandings life
 Canada is more decentralized than other federal unions
 As the political and economic strength of the federal government has declined in recent years, and as
   our constitutional tensions have grown, the original social union has come under strain
 New decisions about balance between pan-Canadianism and regional diversity
 Three federal policy instruments for establishing social programs
    o Provision of benefits directly to citizens
           Significant federal jurisdiction in income security
           Under doctrine of spending power, federal government claims right to make any payments
               to individuals or institutions, and that is not an invasion of provincial jurisdiction
           Federal role in taxation is a powerful instrument of redistributive policies
           Federal involvement in social policy
               Unemployment insurance (1940)
               Family allowances (1944)
               Old-age Security (1951)
               CPP (60s)
               Guaranteed Income Supplement (60s)
               Spouse‟s Allowance (on CPP)(1975)
           Federal government paid 70-80% of income security dollars 1950-1990
    o Shared-cost programs in areas of provincial jurisdiction
           Health care, social assistance, post-secondary education are provincial
           Federal government influences policy through conditional grants
           Resistance from provinces like Quebec has led to less detailed conditions
    o Equalization payments
           Allows poor provinces to provide comparable services without having to resort to above-
               average tax levels
           Unconditional
Shared Cost Programs (CB 466)
 Dominant legal instrument has been “shared cost statute”
 Historically, funding on shared cost basis (usually 50/50)
 Now federal government gives block grant not tied to program expenditures
 Moved away from direct cash transfers to mix of cash and tax points
 Conditions, ex prohibition on residency requirements
 Canada Health Act conditions
    o Accessibility
    o Comprehensiveness
    o Universality
    o Portability
    o Non-profit public administration

38
                                                                                                         39
    o Other specific conditions, ex specific bans on extra-billing by physicians
    o Enforcement machinery
 Canada Health and Social Transfer (1995)
    o Block grant (cash transfer + tax points)
    o Post-secondary education, social assistance, medicare
    o Final break with shared cost programs
    o No national standards for social assurance except prohibition on residency requirements
    o Does not change Health Act conditions
 Tax points transfers are practically irrevocable
 Conditional cash transfer is only means for federal government to force provinces to comply with
   conditions
Spending Power (CB 468)
 Constitutional foundations are unclear
 Unemployment Insurance Reference, [1937] AC 355, is the major authority still
    o Dominion cannot encroach entirely on provincial areas even if it is taxing and creating a fun
    o Federal government can spend in areas outside its jurisdiction because there is a difference
         between coercive regulation and a grant the recipient can decline if it doesn‟t like the conditions
 Federal and provincial governments probably haven‟t wanted to bring spending power to court
    o Might limit the power
    o Quebec, which opposed even unconditional federal transfers, likely because it seemed
         exceedingly unlikely that its consistent demand – a right to opt out with compensation – would
         not be granted by the court
 Reference Re Canada Assistance Plan (MB), [1991] 2 SCR 525
    o Spending power may be deliberately directed at matters lying within provincial jurisdiction
 Arguments for location of spending power
    o s 91A (public debt and property)
    o s 91(3) (taxation)
    o s 106 (authority to make payments out of Consolidated Revenue Fund)
    o royal prerogative
    o Crown has powers of private person and can spend its money how it wants
 Critique of spending power (Petter)
    o The underlying rationale of federalism is a belief that while some matters are better decided by
         the national political community, others should be left to regional political communities.
    o Runs counter to purpose of federalism by allowing one level of government to coerce the other
         level
    o To hold a legislature accountable, citizens must understand its powers
    o Compromises provincial accountability
    o Requires those seeking reforms to social policy to fight on provincial and federal level
 Defence of spending power (Choudhry)
    o Best tool for “vertical equity” – the appropriate stance of governments toward interpersonal
         economic inequality (however measured) prior to and independent of redistributive policies
    o Oates claims in a decentralized federation VE is difficult to achieve
    o Tidebout – mobile citizens created a market where provinces compete with one another through
         packages of goods and services they offer their citizens in exchange for fees to finance those
         services
    o Oates – provincial governments have limited interpersonal redistribution options because
         citizens‟ mobility will cause poor and rich to cluster in different provinces, depending on what
         they offer
    o Weak incentives for interprovincial cooperation (necessary for effective VE market without
         federal influence)
    o Without spending power, it will be a race to the bottom between provinces
 Social Union Framework Agreement (1999) provides a normative framework for federal-provincial
   relations in social policy (doesn‟t include Quebec)
Equalization
 Explicit in Constitution Act 1982, s 36(2); Unconditional
 Not made to every province

                                                                                                         39
40
Delegation of Powers (CB 481)(all applied in Coughlin)
 Court has permitted three types of delegation
     o Administrative delegation (ex Re Agricultural Marketing Act)
     o Incorporation by reference (so don‟t need to entirely restate provincial laws)
     o Conditional legislation – does not come into effect until condition is met by other government)

Reference Re Canada Assistance Plan (BC)
[1991] 2 SCR 525  CB 478
Facts
 CAP authorizes Parliament to make contributions to provinces‟ social assistance and welfare expenses
 Plan says nothing about Parliament‟s ability to amend the Plan
 1990 Parliament decides to limit expenditures to reduce budget deficit.
 BC challenges ability to limit contributions like that
 BC CoA relies on doctrine of legitimate expectations to find Parliament needed to get BC‟s consent to
     make the changes
Holding
Parliament is allowed to change is contributions.
Reasons (Sopinka J)
 Interpretation Act says every Act shall be construed to reserve Parliament the power to amend, repeal,
     revoke, restrict or modify and power, privilege or advantage granted to anyone
 Provision reflects parliamentary sovereignty
 Act is not an ordinar contract but an agreement between governments
 Also it contains an amending formula that allows either party to terminate at will
 “In lieu of relying on mutually binding reciprocal undertakings which promote the observance of
     ordinary contractual obligations, these parties were content to rely on the perceived political price to be
     paid for non-performance”
Ratio
Choudhry: three possible readings of judgment
 narrow – agreement did not specify levels of payment, leaving it to federal legislation
 slightly broader – agreement was binding but could be discharged by conflicting legislation
 broad – agreement only created political, not legal obligations


Coughlin v Ontario Highway Transport Board
[1968] SCR 569  CB 482
Facts
 Motor Vehicle Transport Act (1953), Parliament delegated power to provincial highway transport
     boards to regulate interprovincial trucking (federal per 92(10)(a))
 Coughlin was engaged only in exta-provincial trucking
 Challenged delegation to Ontario Highway Transport Board to issue extra-provincial licences.
Holding
Intra vires
Reasons (Cartwright CJC)
 Parliament may confer upon a provincially constituted board power to regulate a matter within the
     exclusive jurisdiction of Parliament
 Board does not derive interprovincial powers from Legislature, only Parliament
 Parliament says Board should exercise federally-given powers in the same way the Legislature says to
     exercise provincial powers, Parliament can terminate Board‟s powers over extra-provincial trucking
 No delegation, just adoption of Parliament of provincial legislation
Dissent (Ritchie J)
 Short of repealing the Act, Parliament cannot control the authority given to the Board
 Relinquishes control over a head of power
Holding
Parliament can delegate power.



40
41




41
42
CHARTER
   s 32 says Charter questions come after Federalism questions
         o if a government is acting ultra vires, no need to apply Charter


Hunter v Southam
[1984] 2 SCR 145  CB 758
Facts
 Newspaper office was searched under the Combines Investigation Act
 Act did not require sworn statements or probable cause
 Issue is what interpretation to give to “unreasonable search and seizure” in s 8.
Holding
Provisions in the Act violate s 8.
Reasons (Dickson CJC)
 Constitution must be drafted ambiguously to allow for “growth and development”
 Cites Viscount Sankey‟s “living tree” doctrine
 Appropriate analysis is purposive, “which interprets specific provisions of a constitutional document in
    light of its larger objects”
 Purpose of s 8 is to protect a reasonable expectation of privacy
Ratio
Purposive interpretation, considering the purpose of the provision in its interpretation.

Notwithstanding Clause (s 33)
   Only applies to
        o s 2 (religion, language, assembly, association)
        o ss 7-15 (liberty, legal rights, equality rights)
   Overrides have a prospective meaning, not retroactive (Ford)
   Can make omnibus overrides (Ford)
   Can be either about
        o Recognizing reasonable disagreement when it comes to rights
                  If this is the case, Ford is wrongly decided because an omnibus override ends the
                     conversation before it begins
        o Parliamentary supremacy


Ford v Quebec (A-G)
[1988] 2 SCR 712  CB 791
Facts
    Quebec made an omnibus override clause in every law after 1982, and applied it retroactively to all
    statutes passed before 1982
Holding
Clause is valid, but cannot be applied retroactively
Reasons (The Court)
 s 33 does not require a prima facie justification of the override
 “a s 33 declaration is sufficiently express if it refers to the number of the section, subsection or
    paragraph of the Charter which contains the provision or provisions to be overridden”
 s 33 only allows prospective derogation, not retrospective
Ratio
Omnibus s 33 clauses are allowed, but not retrospective application.




42
                                                                                                       43
State Action Doctrine
   Charter applies:
        o Government
                  Legislative and executive branches
                  Any legislation
        o Governmental actors
                  Degree of government control
                            Key: day-to-day control, degree to which representatives of the executives
                                are in management positions
                            Minister establishes direction and approves bylaws (Douglas College, CB
                                808)
                            Municipality appoints directors, ratifies plans taxes and levies, things it
                                does must be consistent with municipality‟s plans (Greater Vancouver
                                Transit Authority, CB 809)
                            Daily decisions must be in hands of government (Stoffman)
                            Not sufficient: Funding and statutory creation (McKinney)
                            Not sufficient: Board is government appointed and operates under
                                regulation (Stoffman  CB 807)
                  Municipal government (Godbout)
                  Essentially government: Where legislature delegates powers it would otherwise
                      exercise itself (Godbout)
        o Performing government function
                  Direct, precise and defined connection between the government program and the
                      body‟s action (Eldridge)
                  Government defines content of service and who gets it (Eldridge)
                  Charter only applies to the government function, not everything the body does
                      (Eldridge)
        o Common law
                  Court acts for public purpose, isn‟t just resolving disputes between actors (BCGEU)
                  Common law is the governing authority, not statute
                  Where the state relies on the common law to act (Swain, CB 826)
                  Can be directly challenged where common law is in direct conflict with Charter
                      values and that in the balancing act the common law should be modified (Hill, takes
                      issue with libel, CB 828)
                  When Charter is applied to common law, there is a balancing of benefits, but there
                      really can’t be a proper s 1 analysis because there isn‟t legislation, so there can‟t
                      really be an objective, etc
   Charter doesn‟t apply
        o Private litigation (Dolphin Delivery)
        o Common law where it is applied to a dispute between private parties (Dolphin Delivery)
        o Universities (McKinney)


Retail, Wholesale and Department Store Union v Dolphin Delivery
[1986] 2 SCR 573  CB 797
Facts
    Court issued a restraining order to prevent the Union form picketing Dolphin Delivery
 Union was in a dispute with Purolator, but claimed Dolphin was doing work for P during the strike
 Canada Labour Code does not regulate secondary picketing, so the matter must be judged at common
    law
Holding
No Charter violation
Reasons (Sopinka J)
 Charter does not apply to private litigation
 It only applies to “government,” which comprises the legislature, executive, and administration


                                                                                                       43
44
    Charter only applies to the common law when the common law is used as a basis for government
     action that is alleged to infringe on Charter freedoms
 A court order is not a government action, because considering it so would expand the Charter to all
     private litigation
Ratio
While the Charter can apply to the common law, it does not in situations where the common law is applied
in a dispute between two private litigants. Charter does not apply to purely private litigation.


McKinney v University of Guelph
[1990] 3 SCR 229  CB 803
Facts
    Faculty challenged mandatory retirement policies, saying they violated s 15
Holding
Universities are not “government actors” under s 32, so the Charter does not apply
Reasons (LaForest J)
 Applying the Charter to private action could “diminish the area of freedom within which individuals
    can act” an impose a heavy burden on courts
 The mere fact that a University is created by statute and funded from the public purse does not make it
    subject to the Charter
 Slaight Communications v Davidson held that the Charter applies where a statute authorizes a person
    to perform a governmental objective, but that is not the case here
 The government has no legal power to control the universities; they “function as autonomous bodies”
Dissent (Wilson J)
 Test to determine whether bodies are constrained by the Charter
     o Does the government exercise general control
     o Does the entity perform a “government function”
     o Is the action done under statutory authority in the public interest?
Ratio
Universities are not governmental actors, so the Charter does not apply. Funding and statutory creation
are not sufficient, government must exercise sufficient degree of control.


Godbout v Longueil (City)
[1997] 3 SCR 844  CB 811
Facts
    L requires all its employees to reside in the city
 G moved to a neighbouring city, and was fired
 L argued the restriction violated s 5 of the Quebec Charter and s 7 of the Charter
Holding
The restriction is invalid.
Reasons (LaForest J)
 Entities are subject to the Charter when they are governmental in nature, evidenced by “such things as
    the degree of government control exercised over them, or by the governmental quality of the functions
    they perform”
 “Governmental” is opposed to merely public
 s 32 must be given broad interpretation so government cannot create separate entities to carry out there
    function, effectively creating a “Charter free zone”
 Reasons municipalities are subject to the charter
     o Municipal councils are democratically elected and accountable, like legislatures
     o They possess taxing power
     o Most significantly, they “derive their existence and law making authority from the provinces; that
          is, they exercise powers conferred on them by provincial legislatures, powers and functions which
          they would otherwise have to perform themselves”
     o Discretion to adopt and enforce coercive laws binding on a defined territory
Ratio

44
                                                                                                        45
Charter applies to bodies that are “governmental in nature”


Eldridge v British Columbia (A-G)
[1997] 3 SCR 624  CB 816
Facts
    Three deaf people who preferred sign language sought a declaration that the unavailability of funding
    for sign language interpreters in hospitals violated the charter
Holding
The Charter applies, and the plaintiffs‟ s 15 rights were violated.
Reasons (LaForest J)
 “Charter applies to private entities in so far as they act in furtherance of a specific governmental
    program or policy”
 Charter does not apply to an entity that merely serves a “public function”
 Charter will apply
     o Where the entity is itself “government” for the purposes of s 32, defined by the level of
          governmental control (Charter applies to everything the body does)
     o Where the entity is doing a “particular activity that can be ascribed to government”; depends on
          the nature of the activity (Charter applies to action only)
 “It is the government, and not hospitals, that is responsible for defining both the content of the service
    to be delivered and the persons entitled to receive it”
 there is a “direct and … precisely defined connection between a specific government policy and the
    hospital‟s impugned conduct”
Ratio
Charter applies to entities‟ actions where those actions carry out a governmental program


Vreind v Alberta
[1998] 1 SCR 493  CB 821
Facts
    Charter challenge to the omission of sexual orientation as a protected ground in Alberta‟s Individual
    Rights Protection Act
 The omission was deliberate
Holding
The omission violates s 15, “sexual orientation” should be read into the Act
Reasons (Cory J)
 There is nothing in the wording of s 32 to indicate only positive encroachments on rights are protected
 s 32 does not preclude the Charter‟s application to legislative omission
 some provisions in the charter (ex minority language rights, s 23) require the government to take
    positive actions.
Ratio
Charter applies to governmental omissions.


Hill v Church of Scientology of Toronto
[1995] 2 SCR 1130  CB 827
Facts
    H, a Crown Attorney, brought a libel action against C
 C challenged that the common law of libel violates freedom of expression
Holding
Charter does not apply.
Reasons (Cory J)
 Common law must be interpreted in a manner which is consistent with charter principles
 Simply a manifestation of “the inherent jurisdiction of the courts to modify or extend the common law
    in order to comply with prevailing social conditions and values”
 “Charter rights do not exist in the absence of state action”

                                                                                                        45
46
   When interpreting the common law in light of Charter values, courts will not institute far reaching
    changes, that is for the legislature
 “the party who is alleging that the common law is inconsistent with the Charter should bear the onus of
    proving both that the common law fails to comply with Charter values and that, when these values are
    balanced, the common law should be modified.”
 Private parties relying on the common law should not be required to defend it
Ratio
Charter only applies to state action. Will only apply to common law if direct values conflict.

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

         Prescribed by Law
    1.   Pressing and Substantial Objective
    2.   Rational Connection between objective and means employed
    3.   Minimal impairment of rights
    4.   Proportionality between salutary and deleterious effects of provision

Prescribed by Law
 Laws cannot be too vague
     o Lack predictability and transparency
     o Authorizes over-broad discretion if scope of discretion is too vague (CB 766)
     o Laws must be accessible t the public
     o Don‟t provide reasonable guidance
 Doctrine of Vagueness (Nova Scotia Pharmaceutical)
     o Fair notice
           Formal notice
           “Subjective understanding that the law touches upon some conduct, based on the substratum
              of values underlying the legal enactment and on the role that the legal enactment plays in the
              life of society”
           Standard is intelligibility – must be able to reasonably gain guidance
     o Limitation of enforcement discretion
           Cannot be a “standardless sweep”
           Conviction cannot automatically flow from decision to prosecute
 Administrative action (exercise of discretion) that falls outside the legislation authorizing it is not
    prescribed by law (see below in Exercise of Administrative Discretion)

Courts will defer to the legislature (Irwin Toy)
 Government sought to balance competing rights
 Aim is to protect a socially vulnerable group
 Conflicting social science or scientific evidence
 Allocation of scarce resources
 Most often comes up in the minimal impairment stage of Oakes

Criticisms of the Oakes test
 Values should not be considered in abstract, but must be considered in context (Edmonton Journal)
 Courts might exercise too much deference in a s 1 context
      o What counts as pressing and substantial? Court says it‟s to rule out trivial legislation
      o Almost everything satisfies it (except Big M)
      o The only time legislation fails is when it is clearly contrary to charter values (ex Vreind)
 Courts will defer to the legislature when there are complex facts
      o Based on competence
 Court will not defer when the whole force of the state is acting against an individual (ex criminal)


46
                                                                                                       47
R v Nova Scotia Pharmaceutical Society
[1992] 2 SCR 606  CB 769
Facts
    NSPS charged under the Combines Investigation Act of conspiring to lessen competition
 NSPS argued the Act violated s 7 on the ground of vagueness
Holding
The law is not too vague.
Reasons (Gonthier J)
 It is a principle of fundamental justice that laws not be too vague (s 7)
 An enactment can be so vague so as to fail s 1 (“prescribed by law”)
 “doctrine of vagueness” founded in the rule of law,
     o fair notice
          Formal
          “subjective understanding that the law touches upon some conduct, based on the substratum
             of values underlying the legal enactment and on the role that the legal enactment plays in the
             life of society”
     o limitation of enforcement discretion
          cannot be a “standardless sweep”
          conviction cannot automatically flow from decision to prosecute
 factors to consider when determining vagueness
     o need for flexibility and courts‟ interpretive role
     o impossibility of achieving absolute certainty, standard of intelligibility being more appropriate
          boundaries define the legal debate
     o possibility that many varying judicial interpretations of a given disposition may exist
 relating to the minimal impairment aspect of Oakes, vagueness relates to overbreadth
 the court will be reluctant to find a law so vague as not qualifying as a “law” under s 1, rather
    vagueness usually comes into minimal impairment
Ratio
Defines vagueness. Standard is intelligibility. Goals are fair notice, limit on enforcement discretion.


R v Thierens
[1995] 1 SCR 613  CB 766
Facts
    T was required to accompany a police officer to the station to give a breathalyser, under s 235 of the
    Criminal Code requiring a breathalyser at the scene or “as soon thereafter as practicable”
 T was not told of his s 10(b) right to retain and instruct counsel
Holding
The breach of 10(b) was not prescribed by law
Reasons
 The language of the section does not imply Parliament purported to prescribe any limit on 10(b)
 Contrast to s 234.1 which requires breathalyser “forthwith”  Court saw this precluding the right to
    counsel
 Limit is prescribed by law “if it is expressly provided by statute or regulation, or results by necessary
    implication from the terms of a statute or regulation or from its operating requirements. The limit may
    also result from the application of a common law rule”
Ratio
Government actions must be within the ambit of the law authorizing them.




                                                                                                       47
48
R v Oakes
[1986] 1 SCR 103  CB 774
Facts
    Narcotics Control Act creates a rebuttable presumption of intent to traffic on proof of possession
 Oakes challenged on s 1 grounds
Holding
Provision fails s 1 test at rational connection.
Reasons (Dickson CJC)
 “free and democratic society”
     o respect for the inherent dignity of the human person
     o commitment to social justice and equality
     o accommodation of a wide variety of beliefs
     o respect for cultural and group identity
     o faith in social and political institutions which enhance the participation of individuals and groups
           in society
 Onus of proving the limit is demonstrably justified rests on the party seeking to enforce it
 Standard is a balance of probabilities
 Oakes Test (CB 776)
     1. Pressing and substantial objective
     2. Rational connection
     3. Minimal impairment
     4. Proportionality between limit and objective
Ratio
Test for s 1 analysis.


Edmonton Journal v Alberta (A-G)
[1989] 2 SCR 1326  CB 781
Facts
    Alberta Judicature Act limits what can be published from divorce proceedings, paper challenges
Holding
Not a reasonable limit under s 1.
Dissent (Wilson J)
 necessary to ascertain the underlying value the right is meant to protect (purposive interpretation)
 must judge competing rights claims in the context, not one at large the other in context
 a “particular right or freedom may have a different value depending on the context”
Ratio
Establishes the contextual approach to balancing rights claims


Irwin Toy v Quebec (A-G)
[1989] 1 SCR 927  CB 783
Facts
   Irwin challenged a Quebec ban on advertising to children as violating s 2(b)
Holding
No violation.
Reasons (Dickson CJC, Lamer & Wilson JJ)
 Court will defer to the legislature where:
     o Government sought to balance competing rights
     o Aim is to protect a socially vulnerable group
     o Conflicting social science or scientific evidence
     o Allocation of scarce resources
Ratio
High-water mark of deference. Defines when court will defer to legislature.



48
                                                                                                           49
Exercise of Administrative Discretion
   Administrative standard of review is not appropriate when Charter right is infringed by decision
   Test (Multani)
     o Does the Act infringe the Charter (if yes, game over)
     o Is the decision within the bounds of the Act
            If no, it isn‟t prescribed by law (so automatically fails Oakes)
     o Does the decision infringe the Charter
     o Does the Act confer power to infringe the Charter
     o If no, does the decision pass the Oakes test?
            Apply to the purposes underlying the administrative discretion
            Remember the way you characterize the objective will drive the rational connection
                analysis (Hutterian Bretheren)


Multani v Commission Scholaire Margurete Bourgeois
Facts
    M wanted to wear his kirpan to school
 The school board, acting under the discretion granted to it by the Education Act, decided not to let him
    wear it
 M claims infringement of 2(a)
Holding
There is an infringement, not saved by s 1
Reasons (Charron J)
 Administrative law standard of review (reasonableness) is not applicable to Charter violations
 Central issue is whether the discretionary decision violates the Charter
 Not whether the rule violates the charter, but just the decision made pursuant to the rule
     o Objective is that of the rule (for Oakes)
 “The council is a creature of statute and derives all its powers from statute. Since the legislature cannot
    pass a statute that infringes the Canadian Charter, it cannot, through enabling legislation, do the same
    thing by delegating a power to act to an administrative decision maker”
 Charter may be infringed, not by the legislation itself, but by the actions of a delegated decision-maker
    in applying it. In such cases, the legislation remains valid, but a remedy for the unconstitutional action
    may be sought pursuant to s. 24(1) of the Charter
 “Where the decision maker has acted pursuant to an enabling statute, since any infringement of a
    guaranteed right that results from the decision maker‟s actions is also a limit “prescribed by law”
    within the meaning of s. 1”
 “When the delegated power is not exercised in accordance with the enabling legislation, a decision not
    authorized by statute is not a limit “prescribed by law” and therefore cannot be justified under s. 1”
 “Where the legislation pursuant to which an administrative body has made a contested decision confers
    a discretion (in the instant case, the choice of means to keep schools safe) and does not confer, either
    expressly or by implication, the power to limit the rights and freedoms guaranteed by the Canadian
    Charter, the decision should, if there is an infringement, be subjected to the test set out in s. 1 of the
    Canadian Charter to ascertain whether it constitutes a reasonable limit that can be demonstrably
    justified in a free and democratic society. If it is not justified, the administrative body has exceeded its
    authority in making the contested decision”
Ratio
Administrative decisions must be subjected to Charter standard of review (Oakes test)




                                                                                                           49
50
Freedom of Religion: s 2(a)
s 2: Everyone has the following fundamental freedoms:
      (a) freedom of conscience and religion

Religion (Amselem)
 Sincere belief
 Does not need to be recognized by organized religion
 No need for expert testimony
 Cannot be fictitious, capricious, or artifice
 Only focus is on the time of the alleged interference, no evidence of past practise necessary

Purpose of legislation violates 2(a)
 Invalid purpose invalidates legislation immediately (Big M)
    o Prima facie breach of 2(a), must fail first step of Oakes
    o Ex. State preference for religion (Big M)
 Cannot be compelled to observe religious practices (Zylberberg)
    o Exemptions from compulsory prayers stigmatize non-believers, and amount to compulsion
        (Zylberberg)
    o Exemptions should be framed so as not to inquire into religion (comes up in minimal impairment
        test: Edwards Books)
 Can it be saved?
    o Does the decision fall under s 93 (Adler)?
          Only for denominational schools present at Confederation, provincial legislative decisions
              re: school funding

Effects violate 2(a)
 Purpose of legislation is valid and secular, but effect touches on religion (Edwards Books)
 Interference must be more than trivial or insubstantial
     o Weighty and heavily impacts religious practise (Edwards Books)
            Ex: taxing religious artefacts is OK (example from Edwards Books)
     o Certification for home schooling does not meet the threshold (R v Jones, CB 934)
            This introduces an ambiguity when compared to Amselem, since the only requirement there
                seems to be that the belief of infringement of religion be sincere
     o State can impose a cost on religious practice, as long as it isn‟t too substantial (Hutterian
          Bretheren)
 State neutrality (Lafontaine)
     o 2(a) protects from the state favouring one religion, compulsion to follow one religion‟s beliefs
     o State is not required to remove all obstacles to religious practice, but laws should not place
          unnecessary obstacles (Lafontaine)
     o Positive assistance will at times be necessary to ensure freedom, but criteria are not defined
          (Lafontaine)
     o State cannot force religious statement, ex Zylberberg whether to stay or leave during prayers
          requires an implicit statement of either belief or non-belief
     o Can consider religious belief when making regulations, as long as it doesn‟t bring about
          exclusion or discrimination (Chamberlain)
 Difference between actions and belief
     o Simple belief cannot preclude full participation in society (Trinity Western)
     o The state can only discriminate based on religion where action shows religion is a problem
          (Trinity Western)
     o 2(a) includes right to proselytize (Lafontaine)




50
                                                                                                      51
R v Big M Drug Mart
[1985] 1 SCR 295  CB 843
Facts
    Big M was charged with selling goods on a Sunday, contravening the Lord’s Day Act
 Big M challenges the Act for violating s 2(a)
Holding
Act violates s 2(a).
Reasons (Dickson CJC)
 Religious and secular possible characterizations of Act
 It is impossible to find a secular purpose for an act so titled
 “Either an unconstitutional purpose or an unconstitutional effect can invalidate legislation”
 Effects test is only necessary when the legislation has a valid purpose; effects can never be relied upon
    to save legislation with an invalid purpose
 Legislation is not allowed to have a shifting purpose (unlike the constitution)
 If a person is compelled by the state to action or inaction he would not have otherwise chosen, he is not
    free
 “To the extent that it binds all to a sectarian Christian ideal, the Lord’s Day Act works a form of
    coercion”
 Freedoms must be understood in light of the interests they were meant to protect, with reference to the
    larger objects of the Charter itself; freedoms given a generous interpretation
 s 2(a) stems from the centrality of the individual conscience
 “guarantee of freedom of conscience and religion prevents the government from compelling
    individuals to perform or abstain from performing otherwise harmless acts because of the religious
    significance of those acts to others.
 Any accused can challenge any law as violating the Charter, corporations included
Ratio
Laws with religious purpose violate s 2(a). Invalid purpose cannot be saved by effects.


Edwards Books and Art Ltd v The Queen
[1986] 2 SCR 713  CB 851
Facts
    Retail Business Holiday Act mandates Sunday as a secular day of rest
 EB charged with staying open on Sundays.
Holding
Act violates s 2(a), saved by s 1.
Reasons (Dickson CJC)
 Act has a secular purpose, which is ok with the Charter
 “Indirect coercion by the state is comprehended within the evils from which s 2(a) may afford
    protection”
 Four classes of persons might be affected
     o Non-observers: not affected
     o Sunday observers: cost of religious observation decreased
     o Saturday observers: added cost for observing a religious holiday other than Sunday
     o Saturday observing consumers: added cost, because they can‟t shop at all on the weekend
 Imposes an economic burden, which is more than trivial or insubstantial (ex taxes on religious
    artefacts)(CB 853)
 s 1 analysis (Oakes test)
     o Act has a pressing and substantial objective
     o Passes rational connection
     o Minimal impairment – is there a better scheme?
          This scheme protects employees who are typically vulnerable
          Limiting it to only large retailers is appropriate
          Because “state sponsored inquiries into any person‟s religion should be avoided wherever
              reasonably possible,” a scheme involving allowing Saturday observing merchants to remain

                                                                                                      51
52
              open on Sundays is repugnant because it would require an inquiry into belief
             “the balancing of the interests of more than seven employees to a common pause day against
              the freedom of religion of those affected constitutes justification for the exemption scheme
              selected by the Province of Ontario, at least in a context wherein any satisfactory alternative
              scheme involves an inquiry into religious belief”
     o    Infringement is proportional to the legislative objectives
Ratio
More deferential approach to “reasonableness” especially in minimal impairment.


Syndicat Northcrest v Amselem
2004 SCC 47  CB 865
Facts
      Condo regulations prohibit building succahs on balconies for Succot
 A contends this violates freedom of religion
 Claim brought under Quebec Charter because it is a private litigation, but the principles of the Charter
      still apply
Issues
Is there a violation of freedom of religion?
Is it justified by the co-owners‟ right to free enjoyment of property?
Did A waive his right to freedom of religion by signing the declaration of co-ownership?
Holding
Yes. No. No.
Reasons (Iacobucci J)
 “Religion is about freely and deeply held personal convictions or beliefs connected to an individual‟s
      spiritual faith and integrally linked to one‟s slef-definition and spiritual fulfilment, the practices of
      which allow individuals to foster a connection with the divine or with the subject or object of that
      spiritual faith”
 Personal or subjective evaluation of religious belief
       o No need for beliefs to be recognized by organized religion – “The State is in no position to be,
             nor should it become, the arbiter of religious dogma”
       o Claimant must only show “sincerity of belief”
       o Claimant must have “asserted the religious belief is in good faith, neither fictitious nor capricious,
             and that it is not an artifice”
       o Should focus on belief as the time of the alleged interference, past practice doesn‟t matter
       o No expert opinions required
Dissent (Bastarache J)
 Things claimed to be required by religion should be supported by expert evidence
Ratio
Religion is only based on sincerity of belief, not requirements of established religion.


Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine
2004 SCC 48  CB 880
Facts
 No land was appropriately zoned for the Jehovah church
 They applied to the municipality on many occasions to get zoning reconsidered, but it never was
Holding
Municipality must reconsider zoning and give reasons for its decision.
Dissent (LeBel J)
 Two aspects of freedom of religion
     o Positive aspect – right to believe or not believe, to declare beliefs, to proselytize
     o Negative aspect – right not to be compelled to belong to a particular religion
 State has a duty of religious neutrality
 State generally refrains from acting in matters relating to religion
 Municipal by-laws must not place unnecessary obstacles in the way of the exercise of religious


52
                                                                                                       53
    freedom
   Edwards Books affirms the state must not eliminate miniscule state-imposed costs associated with
    practise of religion
 Construction of a place of worship is an integral part of 2(a)
Ratio
Defines freedom of religion. Sometimes the state is under a positive obligation of support.


Alberta v Hutterian Bretheren of Wilson County
2009 SCC 37  CB 885
Facts
 Highway Traffic Act makes photos on licenses mandatory to prevent identity theft
 Hutterites are prohibited by the second commandment from having their pictures taken
Holding
There is s2(a) impairment, but passes the Oakes test.
Reasons (McLachlin CJC)
 Infringement of s 2(a) happens when
     o Claimant sincerely believes the practise has a nexus with religion
     o Impugned measure interferes in a way that is more than trivial or insubstantial
 Section 1 analysis (Oakes test)
     o Goal of ensuring the integrity of the system for licensing drivers is pressing and substantial
          Narrow reading of purpose – only preventing identity theft within the licensing system
     o There is a rational connection
     o Minimal impairment
          Government must choose the least drastic means of achieving its objective
          Court should not accept an overly-exacting formulation of the objective that would severely
              restrict the government at this stage
          Only way to significantly reduce the risk of identity theft is with the requirement – claimant
              asks government to significantly compromise the objective
          Not the broad goal of eliminating all identity theft
          Distinction between reasonable accommodation as in Multani and the Oakes test where the
              validity of the law is at stake
          “The question the court must answer is whether the Charter infringement is justifiable in a
              free and democratic society, not whether a more advantageous arrangement for a particular
              claimant can be envisioned”
     o Proportionality
          What is the extent of the deleterious effects?
          Salutary effects
                Enhancing the diver‟s licensing scheme
                Assisting in roadside safety and identification
                Harmonizing Alberta‟s system with other jurisdictions
          Legislators must not wait for proof the law will be effective, only must show the possibility
          Charter does not insulate religious people from the costs of practising their religion
          This requirement imposes the cost of obtaining other forms of transportation
Dissent (Abella J)
 Broad reading of purpose – preventing identity theft
 Therefore fails at minimal impairment
Ratio
Some burdens can be imposed on practice of a religion and not violate s 2(a)


Trinity Western University v BC College of Teachers
[2001] SCR 722  CB 905
Facts
    TWU makes students sign a statement saying they will follow the value system, that is anti-
    homosexual

                                                                                                       53
54
   BCCT will not certify TWU to train teachers because it is discriminatory and they say will make
    discriminatory teachers
Holding
BCCT violated the Charter in not certifying TWU.
Reasons (Iacobucci and Bastarache JJ)
 Freedom of belief is broad, freedom to act upon belief is narrower
 BCCT should have considered the impact of its decision on TWU‟s students‟ freedom of religion
 There is nothing within the TWU standards that suggests graduates will not treat homosexuals fairly
    and respectfully
 Freedom of religion does not exist if belief precludes full participation in society
 Absent concrete evidence that TWU fosters discrimination, the freedom of individuals to adhere to
    belief systems should be respected
 For BCCT to have properly denied certification, it should have based its concerns on specific evidence.
Ratio
Difference between belief and acting on belief.


Zylberberg v Sudbury Board of Education
(1988), 52 DLR (4th) 577  CB 916
Facts
     School board starts the day with reading scriptures or prayers
 Children can be excused from participation at parent‟s request
 Z didn‟t want his child singled out by asking for the exemption
Holding
There is a s 2(a) infringement that cannot be saved by s 1.
Reasons (Brooke, Blaid, Goodman, Robins JJA)
 The Act infringes s 2(a) on its face
 Imposes on religious minorities a compulsion to conform to the majority‟s religious practises
 Exemption imposes the penalty of stigmatization as non-conformists, fails to mitigate infringement
 Purpose is religious, and the exemption confirms it, so there is no need for s 1 because it is an invalid
     purpose
 Other school boards‟ examples show that there are less impairing ways to accomplish a similar
     objective, so it would have failed the Oakes test anyway
Ratio
State cannot compel a statement of faith.


Chamberlain v Surrey School District No 36
2002 SCC 86  CB 925
Facts
    Board disallowed some books because they depicted same-sex families
 Claimed parents moral beliefs were affronted
Holding
Resolution is invalid.
Reasons (McLachlin CJC)
 Secularlism means not allowing religious beliefs to get in the way of tolerance
 Secularism does not preclude religious influence on decisions, as long as they do not otherwise
    contravene the authorizing legislation, which this does
Ratio
Religion can be considered in decisions, but cannot be used to promote intolerance.


Bruker v Markovitz
2007 SCC 54  CB 951
Facts
   Wife requests religious divorce (get) from husband, makes it part of the divorce contract

54
                                                                                                          55
   Husband refuses to give her one, claiming a religious act is not a juridical cause for a contract, and that
    it violates his s 2(a) rights
Holding
There is no violation, religious obligation can be the object of a contract.
Reasons (Abella J)
 Religious obligations can be the enforced by the judiciary as long as it is clear the contracting party
    intended to attach judicial weight to them  clear free informed consent, intention to create legal
    relations etc
 The object of the contract is not against public policy
     o Divorce Act provisions show the state‟s willingness to promote gets
     o The woman‟s autonomy rights are engaged here as well
Ratio
Court will not use freedom of religion to escape contracts not against public policy. Religious content of
obligation does not make it contrary to public policy.

s 93
   Legislature may exclusively made laws regarding legislation, but subject to some conditions
   (2) all powers, privileges and duties enjoyed by Catholic schools in Ontario at Confederation remain,
    and are extended to Protestant schools in Quebec, following subsections give similar rights to
    dissentient schools
   s 93 is a fundamental part of the Confederation compromise
   Any legislation made pursuant to it is insulated from Charter attack as part of that compromise
    (Reference re Bill 30, an Act to amend the Education Act (Ontario), CB 937)


Adler v Ontario
[1995] 3 SCR 609  CB 937
Facts
     A sends his kids to a Jewish school
 Seeks a declaration that non-funding of Jewish day schools in Ontario is unconstitutional, based on ss
     2(a) and 15
Holding
s 93 insulates the funding decisions from Charter attack
Reasons (Iacobucci J)
 93(1) provides no law may prejudicially affect rights and privileges of denominational schools at union
 2(a) claim must fail because any public support for religious education must be grounded in s 93,
     which is a comprehensive Code that 2(a) can‟t be used to expand
 93 doesn‟t guarantee fundamental freedoms, not a blanket affirmation of freedom of religion
 To say 2(a) requires funding for religion schools brings it in direct conflict with 93
 s 15 arguments
      o A argues that because public schools are not mentioned in 93, the decision to fund them is not
           immunized from Charter scrutiny, and therefore funding for public schools without funding for
           denominational schools violates s 15
      o Held s 93 implicitly includes support for public schools
      o Pre-Confed legislation equated separate school rights to those of public schools, so by implication
           public schools are part of the protection given to separate schools by s 93
      o Also, public schools are legislated for under s 93, which insulates them from attack
      o Province can exercise s 93 power however it wants, but has no obligation to do so
      o 93 is a comprehensive code excluding a different or broader obligation regarding denominational
           schools, not restricting the province
Reasons (Sopinka J)
 Public schools are not implied in s 93, but passed under the immunity given to provinces by s 93
      o Majority schools didn‟t need protection (under s 93)
      o Makes no mention of public schools
      o Court has never supported the implication of public schools in s 93
      o Only privilege protected relating to public schools is funding

                                                                                                          55
56
     o     Entrenching public school rights WRT the 1867 benchmark constrains provinces‟ ability to make
           public schools modern
 Analogy to Edwards Books is not correct, since there the law imposed a burden on one religious group
     over that imposed on non-observers, but here there is no restriction on how people educate their
     children, but if they want to do it religiously they have to pay
 s 15 argument is rejected because there is no distinction on the basis of religion
Reasons (McLachlin J)
 s 93 does not constitute a comprehensive code
 No 2(a) argument
      o Sunday closing laws were often used for religious persecution
      o This does not involve a prohibition of otherwise lawful conduct
      o Benefit claimed in this case has no history of recognition as a violation of freedom of religion
      o Never has it been suggested freedom of religion entitles one to state support for religion
 s 15 claim
      o There is a distinction based on religion, fact of choice doesn‟t matter, so there is s 15
           infringement
      o Funding to public schools is a political decision, to encourage more tolerant harmonious
           multicultural society  pressing and substantive objective
      o Rational connection, minimal impairment, proportionality derived from common sense
 L‟Heureux-Dube dissented saying province didn‟t meet minimal impairment
Ratio
s 93 is a comprehensive code

Freedom of Expression: s 2(b)
Values in Freedom of expression
 Instrumental
    o Pursuit of truth (marketplace of ideas)
    o Political/democratic values, social decision making
 Intrinsic
    o Self-fulfilment for listener AND speaker (autonomy interests)

Test (Irwin Toy)
 Is the activity expression?
     o Attempt to convey meaning
           Content doesn‟t matter at this step
     o Non-violent
           Threats of violence are still expression because content doesn‟t matter
 Is the government restricting the freedom?
     o Directly – government is regulating the content of the expression (Irwin Toy)
           Claimant must only prove there is non-violent expressive activity to trigger 2(b) protection
     o Indirectly – regulating consequences of expression (prohibition on leafleting to reduce litter)
           Claimant must prove non-violent expression
           Claimant must prove expression meets one of the values of expression (above)
               Rationale: the government would have to defend every claim at the s 1 level if there
                  weren‟t a greater onus on the claimant at the 2(b) stage of analysis to limit litigation
 If yes to both, government must justify actions under s 1

Compelled Speech (RJR Macdonald)
 Violates speaker‟s autonomy interest in 2(b)




56
                                                                                                       57
R v Keegstra
[1990] 3 SCR 697  CB 963
Facts
   K was a teacher, taught his class anti-Semetic beliefs and tested them based on his beliefs
Holding
There is no violation of s 2(b)
Reasons (McLachlin J)
 Reasons for freedom of expression
     o Instrumental in promoting flow of ideas essential to democracy (political process rationale)
          Corollary is that only political speech is worthy of constitutional protection, but within those
             limits protection is absolute
     o Essential precondition in the search for truth
     o Inherent reasons to protect expression
          Self-realization capacity (speaker and listener)
 Attempts to limit expression have resulted in government blunders
Ratio
Reasons to protect expression.


Retail, Wholesale and Department Store Union v Dolphin Delivery
[1986] 2 SCR 573  CB 971
Facts
     Striking Purolator employees picketed DD because it was covering work for P during the strike
 DD moved for an injunction
Issue
Is the picketing tortious? Is it saved by s 2(b)?
Holding
Yes. No.
Reasons (McIntyre J)
 Picketing necessarily contains elements of expression
 Purpose of this picketing was to induce a breach of contract
 It also involved exercise of the right to freedom of expression
 DD‟s concern is pressing and substantial – it would suffer economically
 This would not completely justify infringing on freedom of expression
 The major issue is secondary picketing
 Strikes can be tolerated as a necessary part of collective bargaining, but they must remain between the
     parties to limit their deleterious effects on the broader business world
 The injunction is proportional because it is only interim, and can be changed after evidence is heard at
     trial
Ratio
Common law can be influenced by/influence Charter values. There will be balancing.


Irwin Toy v Quebec (AG)
[1989] 1 SCR 927  CB 975
Facts
    Quebec Consumer Protection Act prohibits advertising directed at persons under 13
 Court determines Act intra vires provincial jurisdiction
Holding
Act violates freedom of expression, passes s 1 analysis.
Reasons (Dickson CJC, Lamer & Wilson JJ)
 First step – was the activity expression
     o Activity is expressive if it attempts to convey meaning
     o Cannot exclude expressive activity from protection based on content
          Therefore threats to violence still count as expression

                                                                                                       57
58
     o Can be conveyed in many media
     o Violence does not qualify as expression
 Second step – did the government restrict the freedom (in purpose or effect)
     o Purpose – Where the government aims to control physical consequences of expression, the
           purpose is not to control expression
     o Effect – Such indirect control (effect of law is control, not purpose), can be proven if the plaintiff
           demonstrates his activity affects one of the principles of freedom of expression
          Seeking and attaining the truth as an inherently good activity
          Participation in social and political decision-making
          Self-fulfilment (speaker and listener)
 Section 1 analysis
     o Standard is intelligible enough to be “prescribed by law”
     o Objective is pressing and substantial – though it is uncertain at what age children become less
           susceptible to dangerous advertising, the court will defer to the legislature o the line drawing
           (cites Edwards Books)
          Deference triggered by: conflicting scientific evidence, allocating scarce resources
     o Rational connection is satisfied
     o Minimal impairment
          Court should give deference considering legislature‟s representative function when dealing
               with vulnerable groups
          Court finds that the impairment is minimal, by exercising deference to the legislature‟s desire
               to protect vulnerable groups
     o Satisfies proportionality – deleterious effects do not outweigh the pressing and substantial
           objective
Dissent (McIntyre J)
 Total prohibition of advertising aimed at children below an arbitrarily fixed age makes no attempt to
    achieve proportionality
Ratio
Test for freedom of expression


Hate Speech
   As long as it is non-violent, hate speech is protected by s 2(b)
    o Expression is so important the scope of the protection should be broad
    o If the government wants to restrict the right, restriction must satisfy s 1
   Oakes Test issues relating to hate speech (Keegstra)
    o Pressing and substantial objective – stopping hate speech
           Conflicts with the central values of freedom of speech
                Attaining truth: hate speech is less likely to be true
                Political participation: hate speech marginalizes, the marginalized are less likely to
                     enter democratic deliberation
                Autonomy interests: people form identities through communities, by attacking
                     communities hate speech hurts the listener‟s self actualization, outweighing the
                     benefits to the speaker
           Harm from hate speech (individual and social)
                Emotional damage to targeted groups
                Risk of violence of hate groups grow
    o Rational connection
           Low value speech, so more deference given


R v Keegstra
[1990] 3 SCR 697  CB 1018
Facts
    K was a teacher who promoted his anti-Semetic views to his class and tested them on whether they
    agreed with him.
 He was charged under s 319(2) of the Criminal Code for wilful promotion of hatred

58
                                                                                                        59
Holding
S 319(2) violates freedom of expression, but passes s 1 analysis
Reasons (Dickson CJC)
 Applies the Irwin Toy test to conclude there is an infringement on freedom of expression
     o First step – there is an attempt to convey meaning, so there is expression
     o Second step – the purpose of the section is to prevent the communication of expression
     o Not a form of violence that would make it fall into the Irwin Toy exceptions (threats of violence
          can only be classified by the content of the expression, so do not fall into the exception)
     o Freedom of expression is defined broadly and consideration of other values left to the s 1 analysis
 Section 1 analysis
     o Must avoid a formalistic approach
     o Rejects US “clear and present danger” doctrine
     o There is a pressing and substantial objective
          Harm done to members of the target group – emotional damage, humiliation, etc
          Harm done to society – individuals can be persuaded to believe almost anything, so hate
             propaganda can attract people to its cause
          International instruments stress combating hate speech
          Other provisions of the Charter fit with the objective (ex. ss 15, 27)
     o Expression prohibited here is not linked to the core principles of s 2(b) –
          Hate propaganda goes against the marketplace of ideas rationale
          By discriminating, it stops individuals who belong to target groups from experiencing the self-
             fulfilment that s 2(b) also protects
          Democratic process is subverted because individuals are denied the requisite dignity to
             participate in the process
     o Rational connection
          Laws are part of democratic society‟s attempt to stop racism – therefore rational connection
     o Minimal impairment
          Limits on the application seem to limit impairment – exclusion of statements made in private,
             and mens rea element (“wilful” promotion of hatred)
          To limit application to actual proof of hatred ignores the trauma suffered
          It is difficult to prove causal link between specific statements and hatred of identifiable groups
          Only extreme expressions of hatred should be allowed to be prosecuted, so limit on
             overbreadth
          Government can employ a restrictive measure even if less restrictive measures are available,
             as long as it is not redundant, and it furthers the objective in ways the other measures cannot
     o Presumption of innocence (s 11(d)) is infringed, but it can be upheld under s 1.
Dissent (McLachlin J)
 The US is less ready to suppress freedom of speech than international bodies, hence the “clear and
    present danger” requirement
 Charter follows American approach in a “strong liberal tradition”
 There is a pressing and substantial objective
 Reasons against a rational connection
     o May promote hate by causing extensive media attention
     o Public may view suppression suspiciously, leading it to believe there is some truth
     o Nazi Germany had similar hate speech laws
 The provision is overbroad
 Criminalization could represent an excessive response, greater provision should be required for
    criminal law
 Could have a chlling effect on speech
 [Court will exercise great deference where there is low value speech]
Ratio
Hate speech is low value, Court will give deference to legislature when it restricts it.




                                                                                                        59
60
Sexually Explicit Materials
Porn gets 2(b) protection as expressive activity if it is non-violent.

Harm Test (Butler)
 Undue exploitation of sex
   o Degrading and dehumanizing depictions
   o “Positions of subordination, servile submission or humiliation” (Butler)
   o Three categories of porn
           Explicit sex with violence
                   Violence means no 2(b) protection (Irwin Toy)
           Non-violent but degrading and dehumanizing
           Not degrading and dehumanizing
   o Exceptions:
           Artistic work will not be considered sexually explicit if it‟s not just „dirt for dirt‟s sake‟
           Materials shown in private
           Works not degrading or dehumanizing or violent
           Reason: some kinds of expression are more harmful than others
 Risk of harm from the depictions?
   o Harm = predisposes persons to act in an anti-social manner
   o Purposes for regulation for violent and sexually explicit material
           Predisposes people to harmful actions (acting on what they see)
           Harms women‟s place in society
           Court in Butler seems to follow the feminist line that there is more harm in erotic violence
               than in regular violence
 Risk of harm substantial?
   o Type of harm must be “formally recognized,” so it must be found in Constitution or similar laws
       (Labaye)
   o “The harm must be serious in degree. It must not only detract from proper societal functioning
       but must be incompatible with it” (Labaye)
   o Types of harm so far recognized (Labaye)
           Harm to people whose autonomy and liberty could be restricted by being confronted with
               indecent conduct
           Harm to society by predisposing people to anti-social conduct
           Harm to individuals participating in conduct


R v Butler
[1991] 1 SCR 452  CB 1042
Facts
   B was charged with selling possession of obscene material for the purpose of sale (s 163 Criminal
    Code)
 Challenged the law under s 2(b)
Holding
Law violates s 2(b) but is saved under s 1.
Reasons (Sopinka J)
 Exploitation of sex must be “undue”
 The community standards test for whether exploitation of sex is undue
     o Degrading and dehumanizing
     o “Positions of subordination, servile submission or humiliation”
 Exception: artistic work, not just dirt for dirt‟s sake
 Three categories of porn
     o Explicit sex with violence, no violence but degrading and dehumanizing, non-violent and not
         degrading and dehumanizing
 Basis for community standards is harm (“predisposes persons to act in an anti-social manner”)
 Violence is always undue

60
                                                                                                     61
   Explicit sex can be undue if the risk of harm is substantial
   Held there is expression in porn
   Section 1 analysis
      o It is an intelligible standard
      o The original objective was “to advance a particular conception of morality” – not defensible in
          view of the Charter
      o Criminal law is tied to morality, so just because it concerns morality it doesn‟t mean it‟s a
          problem
      o Overriding objective is avoidance of harm to society (how does this fit with the non-shifting
          purpose issue in Big M?)
          Notion of moral corruption and harm are not distinct
          Held Parliament was trying to address harm
          Objective is only valid if it relates to harm to society
      o Expression here is not at the core of the freedom
      o Economic motive for expression makes it easier to regulate
      o Impossible to establish a rational connection with certainty, but it is reasonable to presume
          “exposure to images bears a causal relationship to changes in attitudes and beliefs”
          No concrete evidence, so court relies on common sense
      o Parliament therefore had a “reasonable basis” for interference
      o Minimal impairment
          Does not proscribe non-violent porn unless it is not degrading or dehumanizing
          Artistic exception
          Parliament failed in the past when trying different bans on porn
          Does not relate to private use or viewing
Ratio
Test is based on risk of harm. Only applies to undue exploitation of sex.


Little Sisters Book and Art Emporium v Canada (Minister of Justice)
[2000] 2 SCR 1120  CB 1054 (note)
Facts
    Customs Tariff prohibits importing obscene materials
 LS imported lesbian porn
 Very high error rates by customs officers in determining whether LS‟s stuff was obscene
Holding
Customs Tariff is constitutionally valid, but the interference with Little Sisters was undue
Reasons (Binnie J)
 Little Sisters suffered excessive and unnecessary prejudice
 Nothing to suggest homosexual porn is any more obscene than heterosexual porn
 Little Sisters contended porn plays a different role in the homosexual community – held that the
    constitutionally protected space does not change depending on one‟s community
 Applies the harm test from Butler – it is not a subjective test because degrading or dehumanizing is
    qualified with “if the risk of harm is substantial”
 The law is not less intelligible because it had procedural sophistication
 Parliament is allowed to delegate regulation of constitutionally sensitive matters
 The reverse onus clause (requiring people accused of importing obscene material to prove it is not
    obscene) is unconstitutional – state must justify limits on charter rights
Ratio
Harm must be substantial.




                                                                                                     61
62
R v Labaye
2005 SCC 80  CB 1059
Facts
    Labaye ran a swingers‟ club in Toronto
 Charged with indecency under s 210(1) of the Criminal Code, keeping a common bawdy house
Holding
There is no harm, so the impugned conduct is not indecent.
Reasons (McLachlin CJC)
 Butler test
     o Community standard is based on the amount of harm the community will tolerate
     o Harm means content that predisposes persons to act in an anti-social manner
     o Society formally recognizes this conduct is incompatible with its functioning
     o There must be a “substantial risk of harm which exceeds the community‟s tolerance”
 Relates indecency to obscenity
 Harm principle brings indecency/obscenity in line with the rest of the Criminal Code which is about
    protecting society from harm
 Harm test
     o Type of harm must be “formally recognized,” so it must be found in Constitution or similar laws
     o “The harm must be serious in degree. It must not only detract from proper societal functioning
          but must be incompatible with it”
 Types of harm so far recognized
     o Harm to people whose autonomy and liberty could be restricted by being confronted with
          indecent conduct
     o Harm to society by predisposing people to anti-social conduct
     o Harm to individuals participating in conduct
 If the only people involved in or observing the conduct are willing participants, indecency on the basis
    of harm incompatible with society‟s functioning is not found
 Where actual harm is not established and Crown is relying on risk, there must be a significant risk –
    the more extreme the nature of the harm, the lower the degree of risk required to permit criminal
    sanction
 Harm test
     o “That, by its nature, the conduct at issue causes harm or present a significant risk of harm to
          individuals or society in a way that undermines or threatens to undermine a value reflected in and
          thus formally endorsed though the Constitution or similar fundamental laws
     o “that the harm or risk of harm is of a degree that is incompatible with the proper functioning of
          society”
Ratio
Refines harm test.




62
                                                                                                          63
Political Speech

Harper v Canada (AG)
2004 SCC 33  CB 1069
Facts
    H was president of the National Citizens‟ Coalition, a third party lobby group
 Elections Act limited third party spending during the election campaign period to $3000 per riding or
    $150000 nationally
 H claims this violates s 2(b)
Holding
There is a 2(b) violation but it is saved by s 1.
Reasons (Bastarache J)
 Libman v Quebec
     o Constitutionality of total ban on advertising outside Yes and No organizations in Referendum 
          not justified
     o Libman favoured abstaining
     o Held that some limits on election spending are a means of promoting fairness  prevent rich
          from monopolizing discourse, guarantee right of electors to be adequately informed fo all the
          political positions
     o It is important to limit third party spending more than party spending
 This Act is the response to Libman, and is consistent with egalitarian concept
 Contextual factors
     o Nature of harm  legislature not required to provide scientific evidence, apprehension of harm
          enough
              Almost impossible to measure harm scientifically here
              Lortie Commission is best source
              No limits can lead to rich dominating discourse
              Political parties can circumvent their spending limits
              Unfair effect on outcome
              Perception of discourse being dominated by wealthy
     o Vulnerability – electorate (maybe), candidates (no)
     o Apprehension of harm – perception of unfairness leads to voter apathy
     o Nature of infringed activity – CORE of freedom of expression
              Legislature should be given deference to balance fairness and freedom of expression
              Parliament has the right to choose the electoral model and the nuances
     o Contextual factors favour deference
 Oakes test
     o Objective: promote equality, protect integrity of financing regime applicable to candidates and
          parties, ensure voters have confidence in electoral process
     o No need to provide evidence of actual harm (Butler)
     o Rational connection is met
     o Minimal impairment
              Contextual factors suggest deference
              No restrictions outside campaign, few obstacles to joining or creating parties, majority of
                  citizens can‟t spend the limit, limits are high enough to allow some expensive advertising,
                  and a lot of cheap advertising, definition of advertising doesn‟t apply to a lot of forms of
                  communication, third parties generally have lower operating costs
Dissent (McLachlin CJC)
 Limit puts effective radio and television communication beyond the reach of third parties
 Message thus confined to local dissemination, making national ideas only for political parties
 Significant infringement of 2(b)  political speech is the core of 2(b)
 Permitting unpopular views parties might not embrace is essential to democracy
 Right to participate means right to participate effectively
 Members of the public have a right to information  Charter protects listeners and speakers
 Because we can‟t speak personally with other citizens anymore, the only effective means of

                                                                                                          63
64
     disseminating ideas is through mass media
    Oakes test
      o Objectives (per AG): preventing rich from dominating debate, ensure some positions not drowned
           out by others, foster fairness (election not run by rich people)  pressing and substantial
      o Severe infringement is unjustified if problem is hypothetical
      o No indication such harsh limits are justified
      o Spending limits can make people think the process is unfair
      o Limits are permissible, just cannot impair too much
      o Benefits are illusory because the danger is speculative
Ratio
Political speech is at the core of freedom of expression, but the Court will give deference where warranted.

State Support for Expression  TEST FOR POSITIVE OBLIGATION
   Dunmore test for positive obligation
     o Is the claim grounded in a fundamental freedom of expression, rather than in access to a
         particular statutory regime
     o Does exclusion from a statutory regime have a substantial interference with freedom of
         expression
     o Is the government responsible for the inability to exercise the fundamental freedom?
   Baier reformulation of the Dunmore test for positive duty with regard to expression  Newer than
    Dunmore
     o Is there an expression issue?
     o Is it compromised/substantial interference?
     o Is the government responsible for the interference?


Haig v Canada
[1993] 2 SCR 995  CB 1102
Facts
    Charlottetown accord has a federal referendum and provincial ones
 H just moved to Quebec from Ontario, so did not satisfy the residency requirement to vote in the
    Quebec one, and also was not ordinarily resident in a federal riding so couldn‟t vote in the federal one
    either
Holding
Requirements are not discriminatory, so do not violate 2(b).
Reasons (L’Heureux-Dubé J)
 No violation of s 3 right to vote because that is only for federal and provincial representatives
 Casting a ballot in a referendum is a means of expression
 Case law and doctrine usually cast freedom of expression as negative, rather than positive entitlements
 Sometimes, non-interference will not guarantee optimal functioning of marketplace of ideas
 Artificial distinctions (freedom/right) are not useful, rather pursue the purposive approach (Big M)
     o It might be necessary that the government take positive action to protect 2(b)
 There is no positive obligation to hold referenda, nor a right to vote in one
     o Matter of legislative policy not constitutional law
 If the government does extend resources to particular forms of expression, it cannot do so in a
    discriminatory fashion
 It can extend such a benefit to a limited number of persons, so long as no discrimination
 Exclusion of citizens for residency reasons does not violate s 15
Ratio
No right to vote in referenda associated with 2(b).




64
                                                                                                         65
Native Women’s Association of Canada v Canada
[1994] 3 SCR 627  CB 1106
Facts
    In the Charlottetown negotiations, the federal government provided resources for stakeholder
    organizations to participate in the discussions
 NWAC claimed the 4 native organizations chosen were not representative of native women
 Claimed that violated s 15, and the government should give positive support to the NWAC
Holding
Funding is not discriminatory, no positive obligation of funding.
Reasons (Sopinka J)
 There is no constitutional right that NWAC has a right to receive funding
 It did not stifle expression – Aboriginal groups were facilitated to participate
 Claim based on Haig (non-discrimination in funding)
 Just because the government provides some groups a platform, it is not required to give funding to the
    opposite point of view
 No evidence to suggest the NWAC was any more representative than the groups selected
 NWAC can express its ideas through the four funded groups
 L‟Heureux-Dubé J (concurring): Haig says there can sometimes be a positive obligation (Sopinka J
    says the principle is of one where there is no positive constitutional obligation)
Ratio
Court will hesitate to require a positive obligation.


Baier v Alberta
2007 SCC 31  CB 1111
Facts
 Local Authorities Election Act has residency requirements, and prohibits working teachers from sitting
    on school boards
 B is a teacher and wants to sit on a school board at the same time
Holding
There is no positive obligation of support.
Reasons (Rothstein J)
 Test for provision of government support (last three from Dunmore v Ontario)
     o Is the activity a form of expression?
     o Is the claim for a positive entitlement?
     o Dunmore test
          Is the claim grounded in a fundamental freedom of expression, rather than in access to a
              particular statutory regime
          Does exclusion from a statutory regime have a substantial interference with freedom of
              expression
          Is the government responsible for the inability to exercise the fundamental freedom?
 Standing for school trustee is a form of expression
 There is no violation, because it is grounded in access to a particular statutory regime (so fails step 1 of
    Dunmore
Ratio
Test for positive obligation arising from Charter rights.




                                                                                                         65
66
Access to Public Property
Test for access to a public forum
 Location
     o Would someone reasonably expect this to be a forum considering the values in freedom of
          expression (democratic discourse, truth finding, self fulfilment)?
     o Historically has it been a public forum
     o Is its actual purpose compatible with being a public forum
 Method
     o Expression in public forum cannot be violence


Montreal (City) v 2951-1366 Quebec Inc
2005 SCC 62  CB 1090
Facts
    2951 is a strip club that used a loudspeaker to broadcast stuff on the sidewalk to draw people in
 it was charged under the By-law concerning noice
Holding
There is a violation of s 2(b) but it is saved under s 1.
Reasons (McLachlin CJC, Dechamps J)
 By-law is interpreted as only applying to sounds that stand out over environmental noise
 Purpose is to control noises that interfere with peaceful enjoyment of the urban environment
 There is expression
 All expressive content is worthy of protection, but the method or location of expression may not be
    (Irwin Toy)
 Private property falls outside s 2(b)
 Most government-owned property is public, but some is private (ex offices)
 Streets serve as venues for public communication
 If sound equipment interferes with passage or communication on the street, it can be banned, but that is
    not established here
 Expressive activity should be excluded from 2(b) only if its method or location undermines the
    guarantee
 Test for expression on government-owned property
     o Is the place somewhere one would expect constitutional protection for expression on the basis
          that the expression does not conflict with the three reasons for 2(b) (democratic discourse, truth
          finding, self fulfilment)
          Historical or actual function of the place
          Whether other aspects of the place suggest that the expression within it would undermine the
              values underlying free expression
 Section 1 analysis
     o Noise pollution in urban centres is a pressing and substantial objective
     o There will be licenses granted routinely as exceptions to the prohibition
     o On social issues like this, where interests and rights conflict, legislature must be accorded
          deference
     o Other options might impair less (ex limiting level of noise), but there are limits to its
          effectiveness
Ratio
Test for access to a public forum.




66
                                                                                                       67
Equality: s 15
15. (1) Every individual is equal before and under the law and has the right to the equal protection and
equal benefit of the law without discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical disability.

 (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration
of conditions of disadvantaged individuals or groups including those that are disadvantaged because of
race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.(84)

Kapp Test
 Distinction/differential treatment based on an enumerated or analogous ground?
    o Claimant chooses a comparator group (Auton, Hodge)
           Mirrors claimant group in every way except charter relevant purpose
           Comparable considering legislative purpose
    o Immutable characteristic (Kapp, Corbiere)
    o “Deeply personal characteristic that is either unchangeable or changeable only at unacceptable
        personal costs” (LaForest J in Egan)
 Ameliorative purpose (15(2))
    o Ameliorative purpose
           Look at purpose, not effects
           May consider statements made by drafters; means chosen have a rational connection to
               ameliorative purpose
           Must be a correlation between the program and the disadvantage suffered
           Laws designed to restrict or punish behaviour don‟t qualify
           Ameliorative purpose doesn‟t need to be the sole purpose of the law
    o Does it target a group based on an enumerated or analogous ground?
           Government onus
    o If yes to both, no need for 15(1) or s 1 tests
 Distinction creates a disadvantage (below, also Eldridge)
    o Perpetuating prejudice or disadvantage
           Pre-existing disadvantage
           Nature of interest
               Economic, constitutional, societal significance of interest
               Restricts access to fundamental social institution
    o Stereotyping
           Are benefits being determined by immutable characteristic, not merit
           Correspondence between grounds for claim and actual need = no discrimination


Andrews v Law Society of British Columbia
[1989] 1 SCR 143  CB 1237
Facts
    BC Law Society rules exclude non-citizens from admission
 A is a British citizen who has lived in Canada for a long time and wants to practise
Holding
Rules violate s 15.
Reasons (McIntyre J dissenting)
 Charter provides equality before and under the law, equal protection and equal benefit of the law
 Concerned with application of the law
 Big M: equality may require different treatment
 “A law expressed to bind all should not because of irrelevant personal differences have a more
    burdensome or less beneficial impact on one than another”
 Consider: content, purpose, impact upon those to whom it applies, who it excludes
 Effective government requires treating individuals and groups differently
 Accommodation of difference is the essence of true equality

                                                                                                       67
68
   No intent required for discrimination
   Discrimination” distinction, whether intentional or not but based on grounds relating to personal
    characteristics of the individual or group, which has the effect of imposing burdens, obligations, or
    disadvantages on such individual or group not imposed upon others, or which withholds or limits
    access to opportunities, benefits, and advantages available to other members of society”
 S 15 limited to discrimination on enumerated or analogous grounds
 Test
     o Differential treatment
     o Enumerated or analogous grounds
     o Impact is discriminatory
 “Discrete and insular minority” – non-citizens are a good example
     o Lacks political power, therefore vulnerable to being overlooked
     o Immutable, beyond individual‟s control (LaForest J)
     o Irrelevant to an individual‟s ability to contribute to society
Ratio
Old s 15 test. Focus on effect, not purpose.


1995 Equality Trilogy
1995  CB 1248
Miron v Trudel – denial of car accident benefits to common law couples discrimination on marital status
Egan v Canada – denial of spousal old age benefits to lesbians doesn‟t violate Charter
Thibaudeau v Canada – income tax provisions on child support is not discriminatory
McLachlin, Cory, Iacobucci, Sopinka JJ
 Differential treatment on prohibited ground, effect of imposing a real disadvantage in the social and
    political context
 Purpose of s 15 is prevention of “violation of human dignity and freedom by imposing limitations,
    disadvantages or burdens through the stereotypical application of presumed group characteristics rather
    than on the basis of individual merit, capacity, or circumstance”
Lamer CJC, Gonthier, LaForest, Major JJ
 Adds fourth step to Andrews: characteristic must be “irrelevant to the functional values underlying the
    challenged law”
L’Heureux-Dubé J
 Focus on grounds of discrimination should be abandoned, rather focus on impact
 Analysis should focus on nature of the group, nature of interest adversely affected. More vulnerable
    group, more fundamental interest at stake, more likely there is discrimination


Law v Canada
[1999] 1 SCR 497  CB 1250
Facts
    CPP gradually reduces the widow‟s pension for able-bodied surviving spouses without dependent
    children between 35-40, surviving spouses under 35 at time of death don‟t get a pension until they turn
    65
 L was 30 when her husband died, claims discrimination
Holding
No violation of s 15.
Reasons (Iacobucci J)
 “Adverse effects” discrimination: legislation‟s failure to take into account true characteristics of
    disadvantaged person or group (treating everyone identically), rather than express drawing of
    distinction
 Inquiries when dealing with s 15 claims
     o Distinction on personal characteristics, or fail to take account of already disadvantaged position
     o Enumerated or analogous grounds
     o Substantive discrimination
 Purpose of s 15 is to prevent violation of essential human dignity and freedom, promote a society

68
                                                                                                        69
     where everyone enjoys equal recognition as human beings
    Differential treatment won‟t result in discrimination where it does not violate human dignity or
     freedom
 Must establish differential treatment with a comparator group
      o Purpose and effect of legislation
      o Biological, historical, sociological similarities
 Discrimination based on reasonable person in similar circumstances must find a demeaning effect on
     human dignity
 Factors in determining discrimination
      o Pre-existing disadvantage
          Pre-existing disadvantage, vulnerability, stereotyping, prejudice experienced by group
          Not determinative – member of more advantaged group can bring a claim
      o Relationship between grounds and claimant‟s characteristics or circumstances
          “legislation which takes into account the actual needs, capacity, or circumstances of the
              claimant and others with similar traits in a manner that respects their value as human beings
              and members of Canadian society will be less likely to have a negative effect on human
              dignity”
      o Ameliorative purpose or effects
          On a more disadvantaged group, will not constitute discrimination
          Underinclusive ameliorative legislation is discriminatory
      o Nature of interest affected
          Economic, constitutional, societal significance of interest
          Restricts access to fundamental social institution
 Purpose of legislation is to meet long term needs of old people
 Distinction is based on real situation where young people don‟t need the long term security as much
 Ameliorative purpose for old people  more vulnerable
 Not a complete exclusion, just need to wait until 65
Ratio
Introduces human dignity aspect to Andrews test. Discrimination based on deprivation of dignity.


R v Kapp
2008 SCC 41  CB 1268
Facts
 Three native bands were given exclusive fishing rights for Fraser River salmon for a 24 hour period
 K was a white commercial fisherman, who violated the ban
 Claims the exclusive licenses violate s 15.
Holding
No breach of s 15.
Reasons (McLachlin CJC & Abella J)
 Andrews test
     o Is there a distinction on enumerated or analogous grounds
     o Does it create disadvantage by perpetuating prejudice or stereotyping
 Issue is denying a privilege based on “attributed rather than actual characteristics”
 Law introduced human dignity aspect
     o Pre-existing disadvantage
     o Degree of correspondence between differential treatment and group‟s reality
     o Ameliorative purpose or effect
     o Nature of interest affected
 Human dignity is abstract and subjective
 15(1) about preventing distinctions on enumerated or analogous grounds that perpetuate disadvantage
    or impose disadvantage through stereotyping; 15(2) is meant to enable pro-active combating of
    discrimination
 Test for 15(2) (if it passes this, there is no need for 15(1) or 1 analysis)
     o Ameliorative or remedial purpose
          Look at purpose, not effects

                                                                                                        69
70
            May consider statements made by drafters; means chosen have a rational connection to
             ameliorative purpose
           Must be a correlation between the program and the disadvantage suffered
           Laws designed to restrict or punish behaviour don‟t qualify
           Ameliorative purpose doesn‟t need to be the sole purpose of the law
      o Targets a group disadvantaged on enumerated or analogous grounds
           Not all members of the group need to be disadvantaged
 Aboriginals are disadvantaged, and there is a correlation, which passes 15(2) so there is no 15(1) claim
Ratio
s 15 test. No dignity. Primacy of ameliorative purpose.


Differential Treatment
Types
 Direct
    o Clear differential treatment or exclusion (Vreind)
 Adverse effects
    o Facially neutral law, effects or application lead to differential treatment (Eldridge)
 Disproportionate impact
    o Court has not recognized this, but it could be. See Granovsky


Eldridge v British Columbia
[1997] 3 SCR 624  CB 1280
Facts
    The Hospital Insurance Act gives the Commission discretion over what services are free
 The Commission did not make sign language interpretation available
 E is deaf and claims not providing sign language interpretation violates s 15
Holding
There is a s 15 violation not justified under s 1
Reasons (LaForest J)
 Two purposes for s 15: commitment to equal worth and human dignity; desire to rectify and prevent
    discrimination
 Distinction is based on a personal characteristic that is irrelevant to the functional values underlying
    the health care system
 This is a claim of adverse effects discrimination, because on its face the law doesn‟t make a distinction
 Sufficient that the effect of legislation is to deny equal protection
 Adverse effects discrimination here stems from a failure to ensure deaf people benefit equally from a
    service offered to everyone
 Where it is necessary, sign language shouldn‟t be seen as ancillary because communication is integral
    to the provision of medical services
 Once the state provides a benefit, it must do so in a non-discriminatory manner, which may include
    taking positive action
 Accepting adverse effects discrimination means that the government will be required to take special
    measures to ensure disadvantaged benefit equally from government services
Ratio
Adverse effects discrimination = facially neutral law, imposes discriminatory burden




70
                                                                                                       71
Auton v British Columbia
2004 SCC 78  CB 1293
Facts
    BC did not fund a particular treatment (applied behavioural therapy) for autistic children, mostly
    because of financial constraints and the emergent and controversial nature of the therapy
 A is autistic, and sues claiming exclusion of the treatment violates s 15
Holding
There is no differential treatment, so the s 15 claim fails at the first step
Reasons (McLachlin CJC)
 The appropriate comparator establishes tht the government did not exclude autistic children on the
    basis of disability
 If government chooses to enact benefits or burdens, it must do so without discriminating
 The Canada Health Act doesn‟t actually provide anyone with all medically required treatment, which
    is the basis of A‟s claim
     o Complete funding for „core‟ services delivered by doctors
     o Non-core services are left to the provinces‟ discretion, BC names classes of health care
           practitioners whose services are partially funded
 Eldridge was concerned with unequal access to a benefit that the law conferred, but here the claim is
    for access to a benefit the law has not conferred
 Legislature can target specific programs for funding if it wants, as long as within the funded programs
    it is not discriminatory
 Question is if the exclusion is on that falls within the general scheme of benefits and needs which the
    legislative scheme is intended to address
 Because the point of the legislation isn‟t to meet all medical needs, exclusion of non-core services
    cannot be viewed as an adverse distinction, rather it is an anticipated feature of the scheme
Ratio
Differential treatment only matters where it is to access a benefit conferred by law.


Enumerated & Analogous Grounds
   Analogous grounds must share essential features of enumerated grounds (Andrews)
         o Immutable or beyond the control of the individual (LaForest J)
         o Groups lacking political power (Wilson & McIntyre JJ)
         o “Deeply personal characteristic that is either unchangeable or changeable only at
            unacceptable personal costs (LaForest J in Egan)
   Ground of discrimination is not the evil, the evil comes from its inappropriate use to exclude people
    (responding to the claim in Miron that marital status can‟t be a ground because it is sacred)
   Do not qualify (CB 1306)
         o Employment status or occupation (Re Workers Compensation Act)
         o Province of residence (R v Turpin)
         o Persons charged with war crimes or crimes against humanity outside Canada (R v Finta)
         o Persons bringing claim against the Crown (Rudolph Wolff v Canada)
         o Marijuana users (R v Malmo-Levine)

Pothier, “Connecting Grounds of Discrimination to Real People‟s Real Experiences”  CB 1298
 Grounds provide the necessary history and context for disctimination  Focus attention on the real
    sources of discrimination
 De-emphasis on grounds makes it too easy to validate generalizations and/or categorical distinctions
 Markers of the dynamics of powers




                                                                                                       71
72
Corbière v Canada
[1999] 2 SCR 203  CB 1300
Facts
     S 77(1) of the Indian Act required band members to be resident on the reserve to vote in band
     elections
 C lived off the reserve, and brought a s 15 challenge alleging that residence was an irrelevant personal
     characteristic with which to deny him a voice in decisions that could deeply affect him
Holding
Residence is an analogous ground. There is a s 15 violation.
Reasons (McLachlin, Bastarache JJ)
 Residence here constitutes an analogous ground
 Enumerated grounds mark suspect grounds associated with stereotypical, discriminatory decision
     making  markers of suspect decision or policy making
 Enumerated and analogous grounds are not context specific, and so do not change from case to case,
     but rather whether they are used for discrimination
 What makes things grounds
      o “Basis for stereotypical decisions made not on the basis of merit but on the basis of a personal
           characteristic that is immutable or changeable only at unacceptable cost to personal identity”
      o Characteristics we can‟t change or the government has no legitimate interest expecting us to
           change
      o Insulated and discrete minority flows from these types of characteristics
Reasons (L’Heureux-Dubé J)
 Analogous grounds are judged
      o Reasonable person in the position of the claimant
      o “Important to their identity, personhood or belonging”
      o “Immutable, difficult to change, or changeable only at unacceptable personal cost”
      o Those who have the characteristic lack political power, are disadvantaged or vulnerable
 This stage of the test must understand that discrimination occurs in specific ways for specific groups of
     people
Ratio
Analogous grounds aren‟t context specific; only require immutable characteristics, or ones where the cost
of change is too great or illegitimate.


Comparator Group
   Test (Hodge)
     o Who are the people the legislature is trying to reach?
     o Within this group, the comparator must share every relevant quality with the claimant except the
         enumerated or analogous ground
            Shows the only reason for exclusion is discrimination (Corbiere)
   Application
     o Illustrates differential treatment (Auton, Hodge)
     o Relevant at to show relative disadvantage if there is no differential treatment (Granovsky)
   Court can refine the comparison within the scope of the ground or grounds pleaded (Law)
   Typically addressed in the initial stages of the s 15 analysis, before analysis of
    disadvantage/discrimination


Hodge v Canada
2004 SCC 65  CB 1308
Facts
   H was a common law partner with a man who contributed to CPP
 They broke up in February 1994 and he died in July
 H was denied CPP survivor benefits because the break-up disqualified her as a common law spouse
 H compared the situation to married spouses who were living separate and apart at the time of the


72
                                                                                                         73
    contributor‟s death, who would still qualify
Holding
There is no violation of s 15. The comparator group was wrong.
Reasons (Binnie J)
 The claimant can choose a group with whom she wishes to be compared, but the correctness of the
    choice is a matter of law for the court to determine
 Comparator group “mirrors the characteristics of the claimant relevant to the benefit or advantage
    sought except that the statutory definition includes [or omits] a personal characteristic that is offensive
    to the Charter”
 Starting point is to analyse the purpose of the legislative provisions
 Must identify the universe of people potentially entitled to equal treatment in relation to the subject
    matter of the claim  focus on what the legislature is trying to accomplish
 Lovelace – CasinoRama fund targeted communities, not individuals, so the fact these individuals were
    not status Indians made no different because the program was targeted at communities, so it would
    only violate s 15 if it discriminated among communities
 Martin – tort claimants don‟t constitute a proper comparator group
 Trociuk – relevant universe of claimants is biological parents, so distinction based on sex is
    discrimination
 Corbiere – claimants demonstrated that in every way relevant to the benefit, they were comparable to
    those who benefited, and the only reason for their exclusion was discrimination
 Appropriate comparator here is married spouses who divorced (rather than were separated) since
    common law marriage is predicated on cohabitation, so moving out is the same as divorce in real
    marriage  no discrimination on that basis
Ratio
Comparator group test, used to illustrate differential treatment.


Auton v British Columbia
2004 SCC 78  CB 1293
Facts
     BC did not fund a particular treatment (applied behavioural therapy) for autistic children, mostly
     because of financial constraints and the emergent and controversial nature of the therapy
 A is autistic, and sues claiming exclusion of the treatment violates s 15
Holding
Petitioner chose the wrong comparator group. There is no discrimination if the right one is used.
Reasons (McLachlin CJC)
 Proper comparator” “non-disabled person or a person suffering from a disability other than a mental
     disability (here autism) seeking or receiving funding for a non-core therapy important for his or her
     present and future health, which is emergent and only recently becoming recognized as medically
     required”  the comparator group wouldn‟t be funded either
 Comparator must be like the claimant in all ways save for characteristics relating to the alleged
     grounds of discrimination
 Direct discrimination, or indirect discrimination (effect of the government action amounted to singling
     the claimant out for less advantageous treatment, terms on which the claimants are denied the benefit
     operate as a proxy for their group status, ex fire-fighter selection places unnecessary weight on aerobic
     capacity women can never meet, so the aerobic capacity is a proxy for their group status)
 No evidence to suggest the approach to this therapy “was different than its approach to other
     comparable, novel therapies for non-disabled persons or persons with a different type of disability”
Ratio
Court can reformulate comparator group.




                                                                                                         73
74
Granovsky v Canada
2000 1 SCR 703  CB 1314 (note)
Facts
    CPP required continuous contributions for 5 of last 10 yrs, or 2 of last 3, but had an exception for
    permanently disabled where any time spent not working due to disability are not counted
 G is temporarily disabled, claims discrimination for not being allowed in the drop out
Holding
Comparator group was wrong, appropriate one shows differential treatment but no discrimination
Reasons (Binnie J)
 G submits he be compared to able-bodied people
 Court says the appropriate comparison is “the body of CPP contributors who suffered a severe and
    permanent disability in the years of their respective contribution histories and who therefore did benefit
    from the drop-out provision to which the appellant claims entitlement on the basis of his equality
    rights”  Comparing to more disabled people means there is no discrimination
Ratio
Comparator group can matter in the discrimination analysis

Disadvantage/Discrimination
Test from Law (applied in M v H)
 Pre-existing disadvantage, stereotyping, vulnerability
 Correspondence between grounds for claim and actual needs (Gosselin, Canadian Foundation)
     o If there is correspondence between the program and the group‟s actual needs, there is no
         discrimination
 Ameliorative purpose
 Nature of the interest (is it fundamental)
     o Denying fundamental interests restricts access to society (M v H)

MvH
[1999] 2 SCR 3  CB 1398
Facts
    H was the economically stronger party in their lesbian relationship, that lasted from 1982-1992
 M claimed after the break-up for spousal support, under the provisions in the Family Law Act that
    gives spousal support to common law couples, but is restricted to “a man and a woman”
Holding
There is discrimination not saved by s 1.
Reasons (Cory J)
 “Whether the differential treatment imposes a burden upon or withholds a benefit from the claimant in
    a manner that reflects the stereotypical application of presumed group or personal characteristics, or
    which otherwise has the effect of perpetuating or promoting the view that the individual is less capable
    or worthy of recognition or value as a human being or as a member of Canadian society, equally
    deserving of concern, respect, and consideration” (Law)
 Possible factor: pre-existing disadvantage, stereotyping, prejudice, or vulnerability
 Correspondence between grounds for claim and actual need
 Nature of the interest is fundamental
 Societal significance of the benefit means withholding it from lesbians indicates they are less capable
    of forming intimate relationships of economic dependence
 Objective of the legislation is “equitable resolution of economic disputes that arise when intimate
    relationship between individuals who have been financially interdependent break down”  there is no
    rational connection between this goal and exclusion of same sex couples
Dissent (Gonthier J)
 Lesbians can‟t form economically interdependent relationships like heterosexual couples, because both
    partners are able to seek work  basically he says he‟s not stereotyping but he is, it‟s a shocking
    dissent
Ratio
Test for discrimination.


74
                                                                                                     75
Gosselin v Quebec
2002 SCC 84  CB 1325
Facts
    Social Aid Act makes support payable to those under 30 1/3 of that payable to those over 30
 G is unemployed and under 30, claims discrimination
Holding
There is no discrimination based on age
Reasons (McLachlin CJC)
 Government was attempting to create incentives for young people to enter the labour force
 L‟Heureux-Dubé J in dissent says there is a clear case that G felt like a less valued member of society
    because she was seen as less deserving of aid
Ratio
No discrimination where the measure is meant to help, and does not affect dignity (pre-Kapp)


Canadian Foundation for Children, Youth & the Law v Canada
2004 SCC 4  CB 1326
Facts
    Challenge to the Criminal Code provision which justifies the reasonable use of force by parents to
    discipline their children (spanking)
 CF says it discriminates based on age, because children get less protection from the Criminal Code
Holding
There is no violation of 15(1)
Reasons (McLachlin CJC)
 Correspondence between age-based distinction and actual needs and circumstances of children point to
    no discrimination
 They depend on parents for guidance and discipline, while they also need security, so Parliament is
    trying to accommodate a balance
 “not grounded in a devaluation of children, rather in a concern that criminalizing such conduct risks
    ruining lives and breaking up families – a burden that in large part would be borne by children”
 Binnie J, in dissent, found a violation of 15(1) but it was saved under s 1 for the same reasons the
    majority found no 15(1) violation
 Deschamps J, in dissent, found there was violation of 15(1), not saved by s 1
Ratio
No discrimination where differential treatment takes into account claimant‟s situation.


R v Kapp
CB 1327
 Court abandoned human dignity analysis in Law
 Test is “perpetuation of prejudice or stereotyping renders a distinction discriminatory”
 Broader interpretation is to be followed  “distinctions that have the effect of perpetuating
   disadvantage in ways other than perpetuating prejudice or stereotyping can also constitute
   discrimination”




                                                                                                     75
76
Life, Liberty and Security of the Person: s 7
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice.

   Natural justice – right to have a hearing, and to have the decision made by impartial and independent
    officials
   Drafters of s 7 meant fundamental justice only to indicate rules designed to secure procedural fairness
    or natural justice, as opposed to rules vindicating substantive values that may or may not find
    expression elsewhere in the Constitution
   It is not meant to include liberty of contract
   Supreme Court has interpreted fundamental justice to mean more than procedural protections

Test
 Deprivation of life, liberty, security of the person
     o Violations
         Absolute liability offences (BC Motor Vehicle Reference)
         Preventing an abortion (Morgentaler)
         Preventing assisted suicide (Rodriguez)
         Prohibition on private medical insurance (Chaoulli)
         Denying parents decisional autonomy over their children (B(R))
         Denying choice of where to live (Godbout)
         Denial of state counsel in custody proceedings
               Must be more than “the ordinary stresses and anxieties that a person of reasonable
                  sensibility would suffer as a result of government action … serious and profound
                  effect on a person’s psychological integrity” (New Brunswick v G(J), CB 1189)
     o Not a violation
         Denying welfare (Gosselin)
         Delay in sexual harassment trial causing psychological distress (Blencoe v British Columbia,
             CB 1191)
 Consistent with fundamental justice
     o Test for principle of fundamental justice (Chaoulli, dissent, drawing on Rodriguez)
         Legal principle
         Significant societal consensus
         Can be identified with precision, by a manner yielding predictable results
     o Not consistent
         Absolute liability offences (BC Motor Vehicle Reference)
         Illusory defences (Morgentaler)
         Arbitrary laws (Chaoulli)
     o If not consistent with the principles of fundamental justice, go to s 1

Issues with s 1
 If something is inconsistent with fundamental justice, is it ever justified in s 1?
 If something is in violation of fundamental justice for arbitrariness, it will likely fall under rational
    connection (Chaoulli)


BC Motor Vehicle Reference
[1985] 2 SCR 486  CB 1161
Facts
    S 94(2) of the Motor Vehicle Act imposes absolute liability of fine and imprisonment on drivers
    driving with a suspended license
Holding
The absolute liability violates s 7 and does not accord with fundamental justice
Reasons (Lamer J)
 US Constitution does not have s 52 or the internal checks and balances of ss 1 & 33, so adjudication is
    different in Canada

76
                                                                                                        77
   Fundamental justice is not a protected interest, but a qualifier
   Scope of fundamental justice must be determined in reference to life, liberty and security of the person
    (the interests it is meant to protect)
 FJ is not synonymous with natural justice
 Ss 8 & 14 illustrate some deprivations of life liberty and security of the person that fit with
    fundamental justice
 Fundamental justice stems from inherent domain for the judiciary as guardian of the justice system
 Absolute liability offends fundamental justice because it is contrary to the basic principle that the
    innocent should not be punished
 Could just as well have strict liability coupled with defence of due diligence
Ratio
Fundamental justice isn‟t the same as natural justice.


R v Morgentaler
[1988] 1 SCR 30  CB 1165
Facts
    251(1) of the Criminal Code provided that anyone who took steps to have an abortion was liable to
    imprisonment for life
 The only exception was for abortions performed in an accredited hospital if the therapeutic abortion
    committee thought it would endanger the woman‟s life or health
 M established an unapproved clinic and was charged
Holding
The section violates s 7 and is not saved under s 1
Reasons (Dickson CJC)
 There are valid reasons for interfering with security of the person
 State interference with bodily integrity and serious state-imposed psychological stress violates s 7
 Parliament can infringe security of the person only in accordance with fundamanental justice
 There is a prima facie violation of s 7
     o Removal of decision-making power from women threatens them in a physical stress
     o Uncertainty as to whether they will get an abortion adds emotional stress
     o Extended delays in obtaining therapeutic abortions is a violation of security of person
 Fundamental justice
     o Procedural and administrative requirements created substantial inconsistencies and obstacles that
          greatly limited the number of hospitals performing abortions (~20%)
     o Standards applied by committees varied, and were ambiguous  serious procedural flaw
     o Defence is illusory, because approved hospitals are hard to get to, making it almost impossible to
          get an abortion legally
          It creates so many potential barriers to its own operation that it will be practically unavailable
              to women who would otherwise qualify for it
     o Effects of the limitation for pregnant women are out of proportion to the objective sought to be
          achieved
Reasons (Beetz J)
 An Act of Parliament violates security of person if it makes someone choose between committing a
    crime to obtain effective and timely medical treatment, or no treatment at all
 Possibility of delays inherent to the process, or the possibility of not being recognized by the
    committee, is enough to violate s 7
 Only the delays created by the system are a violation of fundamental justice
Reasons (Wilson J)
 The state will respect individuals‟ choices, and to the greatest extent possible avoid subordinating these
    choices to any one conception of the good life
 The key of s 7 is the degree of autonomy in making decisions it grants
 Does the decision to terminate pregnancy fall into the protected decision  YES, it has profound
    psychological, economic, and social consequences, and deeply reflects the way she things about herself
    and her relationship to society at large


                                                                                                        77
78
    Right to reproduce or not is central to a modern woman‟s struggle to assert her dignity and worth as a
     human being
 Woman‟s right to reproduce should be in her own control, not that of the state
Ratio
Infringement of security of person inconsistent with fundamental justice violates s 7.


Rodriguez v British Columbia
[1993] 3 SCR 519  CB 1178
Facts
    R had Lou Gherig‟s disease, and wanted the right to commit suicide with assistance if she needed it,
    contrary to s 241(b) of the Criminal Code
 R claims it violates her s 7 rights not to be able to choose the timing and manner of her death
Holding
The section does not violate the principles of fundamental justice
Reasons (Sopinka J)
 Consideration of s 7 cannot be divorced from the sanctity of life, implied in life, liberty and security of
    person  liberty and security of person cannot trump life
 No doubt the prohibition will contribute to R‟s distress
 Security of the person, but its nature, cannot encompass a right to take action that will end one‟s life as
    security of the person is intrinsically concerned with the well being of the living person
 Historical understanding that sanctity of life excludes freedom of choice WRT death
 Security of the person does include “personal autonomy, at least with respect to the right to make
    choices concerning one‟s own body, control over one‟s physical and psychological integrity, and basic
    human dignity”
 Prohibition causes significant pain and distress and impinges on security of the person
 Fundamental justice
     o Must look at the rationale behind the practice itself and the principles which underlie it
     o Court must balance interests of the state and the individual
     o Prohibition protects vulnerable who might be induced in moments of weakness to commit suicide
          – not just state policy, but statement on sanctity of life
          Society continues to draw a distinction between passive and active forms of intervention in
              the dying process, making palliative care ok, but assisted suicide crossing the line
     o Principles of fundamental justice are fundamental in that they would have general acceptance
          among reasonable people
     o Consensus is that human life must be respected and we must be careful not to undermine
          institutions that protect it
     o Capital punishment is not allowed because allowing the state to kill cheapens the value of life –
          so would assisted suicide
Dissent (McLachlin J)
 Prohibition denies some people the choice to end their lives only because they are physically unable to
    do so themselves
 Arbitrary limitations on what a person does with his body violates s 7
 Why should R be asked to bear the burden that people might act criminally in other situations and
    coerce the sick into suicide
 Principles of fundamental justice “require that each person, considered individually, be treated fairly
    by the law”
         o Fear of abuse comes up in s 1
 Parliament has not been consistent about which death-causing acts are OK and which aren‟t
 True objective only seems to prevent abuse, which should be taken care of with existing prohibitions
    on culpable homicide
Ratio
Fundamental justice as a reflection of social priorities.




78
                                                                                                        79
Gosselin v Quebec
2002 SCC 84  CB 1197
Facts
     Social Aid Act limits welfare for people under 30, even if they do education or work experience
     programs they still can‟t get as much welfare as people over 30
 G claimed s 7 rights had been violated, also s 15 above
Holding
There is no s 7 violation.
Reasons (McLachlin CJC)
 G argues s 7 right to security of the person includes the right to receive enough welfare to meet basic
     needs
 It is not necessary for a judicial or adjudicative process to be involved to invoke s 7
 There is no positive duty attached to s 7, it is a negative freedom
      o It could come up in special circumstances (not here)
Dissent (Arbour J)
       S 7 does include a positive obligation – the “and” means it‟s a positive obligation
       Minimum level of welfare is so connected to basic health and survival that it is inevitably a
           positive right
       Criteria for positive obligation (Dunmore)
      o Grounded in fundamental Charter right, not access to statutory regime
      o Exclusion from regime is a substantial interference with exercise and fulfilment of right
      o State can be held accountable for inability to exercise right in question
       Exclusion from welfare excludes any real possibility of having basic needs met through any
           means
       No requirement to show G exhausted all other possible options, only evidence enjoyment of s 7
           was “substantially impeded” by exclusion from system
       Health risks and psychological consequences of being poor and homeless interfere with physical
           security
       Third criterion doesn‟t require causation, just that the state can do something about it – the state
           cannot turn a blind eye
Ratio
s 7 is a negative freedom, no positive obligation attached.


Chaoulli v Quebec
2005 SCC 35  CB 1205
Facts
    Health Insurance Act (HEIA) and Hospital Insurance Act (HOIA) don‟t allow Quebeckers to buy
    private health insurance
 Mr Z was frustrated with the wait times in Quebec, and Dr C was unsuccessful in having his home-
    delivered medical activities recognized, so they sued claiming the HEIA and HOIA violated their s 7
    rights
Holding
There is a violation of s 7 right, not saved by s 1
Reasons (Deschamps J)
 Central question: is the prohibition justified by the need to preserve the integrity of the public system?
 Large proportion of health care is delivered privately, other provinces don‟t need the prohibition
 Waiting lists cause people to die, they serve as a form of rationing on the public system
     o Therefore they violate s 7
 Objective: quality accessible health care, preserve the public system  pressing and substantial
 Prohibition makes anything but public care impossible except for the very rich
 There is a rational connection – public system preserved by quasi-monopoly
 Minimal impairment
     o Jeopardy of the public system by human reaction to private system carries little weight


                                                                                                        79
80
     o    Other provinces and countries don‟t prohibit private insurance and still have functional public
          systems
     o Courts must rise above politics, promote values that may not otherwise be taken seriously in the
          legislature
     o Deference is due where there is a complexity of evidence, but government has not proven this
     o Deference where government has given proper weight to competing interests
          Prospective nature of decision, impact on public finances, multiplicity of competing interests,
              difficulty of presenting scientific evidence, limited time available to state
          This is a good example of when the court has enough tools to evaluate government measures
 Government cannot choose to do nothing in light of violation of Quebeckers s 7 rights being violated
 There is no proof the current solution minimally impairs s 7 rights, so it fails s 1
Reasons (McLachlin CJC & Major J)
 Where the government puts health care in place, it must comply with the Charter
 Monopoly on insurance = delays affecting security, doesn‟t conform to fundamental justice
 Delays in treatment affect patients physically and mentally = violate s 7 (analogy to Morgentaler)
 Principle of fundamental justice: laws cannot be arbitrary
     o Law is arbitrary when it “bears no relation to, or is inconsistent with, the objective that lies
          behind it” – consider the state interest and societal concerns provision is meant to reflect
          (Rodriguez) – onus on the claimant
     o More serious impingement on liberty, stronger connection to facts (clear in theory and fact)
     o Other provinces and countries lack of prohibition show the monopoly is not necessary
     o Therefore, the prohibition is arbitrary
 s1
     o No rational connection, fails minimal impairment and proportionality
Dissent (Binnie & LeBel JJ)
 Majority standard is unreasonable – how is anyone to know how much health care is reasonable to
    satisfy s 7
 This is a debate about social values, not constitutional law
 Liberty doesn‟t include freedom to contract, no constitutional right to spend money
 Requirements for something to be a principle of fundamental justice (health care isn‟t one)
     o Legal principle
     o Significant societal consensus
     o Can be identified with precision, by a manner yielding predictable results
 No claim for arbitrariness, the law‟s goal is clear and the means are rationally connected to the object
Ratio
Arbitrary laws violate fundamental justice.



Decisional Autonomy
        Limits on decisional autonomy (R v Malmo-Levine – right to smoke weed, CB 1196)
     o   “Cannot be stretched to afford protection to whatever activity an individual chooses to define as
         central to his or her lifestyle”
     o   “A society that extended constitutional protection to any and all such lifestyles would be
         ungovernable. Lifestyle choices of this order are not, we think, „basic choices going to the core
         of what it means to enjoy individual dignity and independence”


B(R) v Children’s Aid Society of Metro Toronto
[1995] 1 SCR 315  CB 1193
Facts
   Child Welfare Act gives CAS power to order wardship over children with medical problems
 Baby needed a blood transfusion, Jehovah‟s parents wouldn‟t let it happen
 CAS takes wardship
 Parents claim their s 7 rights have been violated by the order
Holding

80
                                                                                                         81
Right to liberty violated, but fundamental justice was observed.
Reasons (LaForest J)
 Parent‟s liberty interest includes “right to nurture a child, to care for its development, and to make
    decisions for it in fundamental matters such as medical care”
 Legislation regarding the matter favours minimal intervention, including the Act
 Parental decision making is a protected sphere because parents are more likely to appreciate what their
    children need, and the state is ill-equipped to make them
 Children must also benefit from the charter, including right to life and security of person
 Because children are unable to assert their rights, society presumes parents will exercise their choices
    in a way that does not offend right of the child
 State can properly intervene where parents‟ conduct falls below the accepted threshold, and in such
    cases is limiting the constitutional rights of the parents, not vindicating rights of the child
 Limits on right to liberty follow fundamental justice
     o Provisions about notice
     o Hearing before a judge for parents to present concerns
     o Onus on the state when applying for wardship
Ratio
Decisional autonomy is protected by s 7 right to liberty.

Language Rights
Constitution Act 1867, 133: Either the English or the French Language may be used by any Person in the
Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec;
and both those Languages shall be used in the respective Records and Journals of those Houses; and either
of those Languages may be used by any Person or in any Pleading or Process in or issuing from any
Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.
The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in
both those Languages.

Charter
16: English and French are equal
17: Right to use English or French in Parliamentary debates
18: Federal statutes, etc, are bilingual and equally authoritative
19: English or French can be used in any federal court
20: Right to communicate with federal government in either language if
      Significant demand for that language in that office
      Due to its nature, it is reasonable the office would communicate in both languages
23: Minority language education rights
    1. Right to have children given minority language schooling if:
           a. Parents‟ first language learned and understood is that of the minority
           b. Parents‟ primary school education was in minority language
    2. If one child gets minority language instruction, the whole family can
    3. Rights in (1) and (2)
           a. Apply wherever in the province there is a sufficient number of children to warrant spending
                public funds on minority education
           b. Includes right, where numbers so warrant, to have children educated in minority education
                facilities where budget is available

   Right to understand what is going on in court and to be understood is an aspect of the right to a fair
    hearing (MacDonald)
     o Related is the right to be summoned in the language one understands




                                                                                                         81
82
Quebec v Blaikie (No 1)
[1979] 2 SCR 1016  CB 1347
Facts
    Constitution Act 1867 s 133 allows English or French to be used before any courts in Quebec
 Charter of the French Language says only French before administrative tribunals
Holding
Section 133 applies to administrative tribunals.
Reasons (The Court)
 The reference to courts should be read broadly to include tribunals
     o Anything that is adjudicative, applying legal principles to the assertion of claims under
         constituent legislation, not settling issues on grounds of expediency or administrative policy
 People may submit and plead in either language, tribunals can issue any documents in either language
Ratio
English and French are equal in courts and tribunals.


Societé des Acadiens v Association of Parents for Fairness in Education
[1986] 1 SCR 460
Facts
    Judge in the NBCA could not understand SA‟s French submissions on appeal in an unrelated matter
 SA claims rights guaranteed by 19(2) include right to be understood in either language
Holding
There is no right to have court conducted in any language
Reasons (Beetz J)
 19(2) and s 133 Constitution Act 1867 have essentially the same scope
 Language rights are not related to natural justice
 There is no right to be understood in any language
 From MacDonald, s 133 is for optional unilingualism at the option of the speaker in Parliamentary
    debates and in court, does not guarantee the submission will be understood in the chosen language
 English and French are equal, and greater than all the other languages
 Common law right of parties to be heard and understood by a court and right to understand what is
    going on in court is not a language right, but part of the broader right to a fair hearing
 Language rights remain founded on political compromise, courts should approach them with more
    restraint than when construing legal rights  s 16
 Legislative process is political, so suited to advancement of language rights, judicial process is not
    political so it is not
 A right to be understood in English or French would effectively require a bilingual judiciary, and this
    is a major policy choice that is not apparent in the language of s 16
Ratio
Language rights don‟t include right to be understood in any language.


Mahe v Alberta
[1990] 1 SCR 342  CB 1355
Facts
    M is a parent who received primary school instruction in French, so qualifies under s 23(1) to have his
    child educated in French (the minority language in the province)(“s 23 parent”)
 Claim s 23 gives the minority language parents in Edmonton the right to “management and control” of
    a French school board, which they did not
 Does s 23 mandate management and control depending on the circumstances? Are there enough kids
    in Edmonton?
Holding
Yes. Not clear.
Reasons (Dickson CJC)
 Purpose of s 23: preserve two official languages and the corresponding cultures where they are

82
                                                                                                        83
    minorities
     o Language is central to culture
 S 23 guarantees minority language instruction where the number of children warrants it
     o „Sliding scale‟ of what minority language communities get, based on size
 Question here is only upper level of sliding scale: what is it and who gets it
 Where numbers warrant it, s 23 mandates management and control of school board for parents
     o In some circumstances independent Francophone board
     o Too small a population would only be hurt by a private board, which hinders purpose of s 23
 Where numbers don‟t warrant a separate board, there can be representation on a school board
     o Minority members on the local board, proportional to the number of students
     o Minority members have exclusive power to make decisions on minority language instruction and
          facilities
          Expenditures, appointment of administrators, establishment of programs of instruction,
              recruitment and assignment of teachers, agreements for education and services
 Minority should be on a basis of equality with majority – sometimes this means spending more per
    capita (ex when the new school board is just starting)
 It is also possible authorities can give minority groups more control than outlined above
Ratio
Defines s 23 provisions


Ford v Quebec
[1988] 2 SCR 712  CB 1368
Facts
     Ss 58 & 69 of the Charter of the French Language require signs only to be in French, and businesses
     only use their French names
 Ford claims that violates s 2(b)
Holding
There is a 2(b) violation. Fails Oakes at minimal impairment (because it's a total ban)
Reasons (The Court)
 Freedom of expression includes right to express in the language of choice
 Language is content, instrument by which people articulate identity
 Other language rights in the Charter mostly impose positive obligations on the government
 Freedom of expression provides a zone of non-interference for the government
 Fact signs were commercial does not preclude them from the protected sphere of s 2(b)
 Oakes test
      o Charter of French Language has a pressing and substantial objective, given the vulnerable
          position of the French language – declining birth rate, assimilation outside Quebec, greater
          assimilation of immigrants into Anglo community, continued dominance of English at high levels
          of commerce
      o Rational connection
      o Fails minimal impairment, because the French could just be more prominent
Ratio
2(b) includes some language rights.

Remedies
   s 24: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied
    may apply to a court of competent jurisdiction to obtain such remedy as the court considers
    appropriate and just in the circumstances”
     o Individualized remedies
             Exclusion of evidence
             Declaration of infringement of rights
                   Just says there is a constitutional problem, leave it to the executive to fix it, but no
                       obligation to fix (Little Sisters)


                                                                                                        83
84
                      Focuses on the cooperative relationship between the executive/legislature and the
                       Court, relies on good faith by the executive (see dissent in Doucet-Boudreau)
             Damages (CB 1437)
                   Typically brought against public officials alleged to have violated Charter rights in
                       the course of exercising statutory powers
                   Only allowed in absence of good faith
                   Majority of claims arise in criminal law: unconstitutional arrests, searches, assaults
             Injunctions
     o Available for actions of public officials operating outside constitutional scope of authority
     o Normally not available where s 52 is invoked, but it hasn‟t been ruled out
   s 52: “… any law that is inconsistent with the provisions of this Constitution is, to the extent of the
    inconsistency, of no force and effect”
     o Available where constitutionality of legislation is at issue and declaration of invalidity sought
          (Big M)
     o 4 major remedies besides striking down entirely:
             Severance
                   “what remains is so inextricably bound up with the part declared invalid that what
                       remains cannot independently survive … whether on a fair review of the whole
                       matter it can be assumed that the legislature would have enacted what survives
                       without enacting the part that is ultra vires at all” (Schachter)
             Reading down
                   Saves the law from invalidity by giving a narrow interpretation to some parts
                   Based on presumption legislature intended to act within the bounds of the
                       Constitution
             Reading in
                   Appropriate where (Schachter)
                        o Legislative objective is obvious
                        o Choice of means chosen to further leg objective is not so unequivocal as to
                             preclude the read-in part
                        o Does not require substantial intrusion into budget
             Constitutional exemptions
                   Law remains in force, but declared inapplicable to people whose rights are violated
                       by its effects
                   Must be used restrictively
     o Delayed declaration of invalidity
             Length: 6 months (M v H), 18 months (Corbiere), as long as necessary (Manitoba
                Language Reference)
             Test (Schachter)
                   It would pose a danger to the public
                   It threatens the rule of law (Manitoba Language Rights Reference)
                   It would deprive people of benefits without providing them to the applicant
             Benefits
                   Allows legislature time to fill void
             Criticism
                   Allows unconstitutional state of affairs to continue


Schachter v Canada
[1992] 2 SCR 679  CB 1381
Facts
    S claimed the Unemployment Insurance Act provisions excluding the possibility of paternity benefits
    violated s 15  courts agreed
 What is the appropriate remedy?
Holding
Delayed declaration of invalidity
Reasons (Lamer CJC)

84
                                                                                                       85
   Doctrine of severance
     o Used to interfere with law as little as possible
     o Only declares offending sections of no forece and effect
     o More prominent in Charter cases than in federalism cases (where a statute is ultra vires it usually
          all is)
     o Standard: “what remains is so inextricably bound up with the part declared invalid that what
          remains cannot independently survive … whether on a fair review of the whole matter it can be
          assumed that the legislature would have enacted what survives without enacting the part that is
          ultra vires at all”
 Reading in is akin to severance
     o Where severance excludes only the improper inclusion, reading in brings in what the statute
          wrongly excludes
     o It is arbitrary to treat inclusively and exclusively worded statutes differently
     o Inconsistency = what is left out of the verbal formula as well as what is wrongly included
 Purposes of severance/reading in
     o Remaining as faithful as possible to the legislation within the bounds of the constitution
     o Not always safe to assume legislature would have passed the bill with the severed or read in parts
     o Required in order to respect purposes of charter at times – standards developed under the Charter
          are applied consistently
 Defining extent of inconsistency
     o Some circumstances require broad striking down – usually things that fail pressing and
          substantial objective (ex Big M)
     o Generally the whole part that fails rational connection
     o When the failure comes at minimal impairment or proportionality, more flexibility –
          inconsistency defined as provisions left out of the legislation which would carefully tailor it or
          avoid disproportion
 Deciding when severance/reading in is appropriate
     o Remedial precision – inconsistency must be clearly defined so court doesn‟t legislate too much
          Court should not read in where no extension flows with sufficient from the legislation or
               constitutional requirements
     o Interference with legislative objective
          Intrusion into budgetary decisions should be minimal
          Should not change the legislative scheme‟s nature
     o Change in significance of the remainder
          Relative size of already included group and group to be included – if new group is larger than
               existing one, shouldn‟t read in
     o Significance of remaining portion – if the rest is significant and longstanding, it is likely the
          legislature would have enacted it even without the offensive portion
 Temporary declaration of invalidity
     o Court should not strike down immediately if:
          It would pose a danger to the public
          It threatens the rule of law (Manitoba Language Rights Reference)
          It would deprive people of benefits without providing them to the applicant
     o Criticism:
          Allows an unconstitutional situation to exist
          Forces issue onto the legislative agenda when it‟s not ready, imposes artificial timetables
 Application to instant case
     o Positive rights usually don‟t favour striking down immediately – deprives eligible persons of
          benefit
     o Reading in would be substantial interference, because it would double the group of potential
          beneficiaries  best idea is to suspend declaration of invalidity
Ratio
Defines s 52 remedies.




                                                                                                       85
86

Vreind v Alberta
[1998] 1 SCR 493  CB 1391
Facts
    Charter challenge to the omission of sexual orientation as a protected ground in Alberta‟s Individual
    Rights Protection Act
 The omission was deliberate
Holding
“Sexual orientation” should be read in
Reasons (Iacobucci J)
 Severance would be akin to striking down the whole act
 Guiding principles for determining remedy
     o Respect for legislature
     o Respect for Charter
 Reading in minimizes interfering with the legislative purpose, enhances it
 “Sexual orientation” is precise and understood
 No significant budgetary concerns
 Thrust of legislation is respected, since everyone who used to benefit still does
 Group to be read in clearly smaller than those already benefiting
 Closest a court can come to respecting legislative intention is to determine what the legislature would
    likely have done if it had known that its chosen measures would be found unconstitutional
 Where minority groups have historically been subject to prejudice, judicial intervention is warranted to
    correct a democratic process that has acted improperly
 Even if a court reads in, legislature can just pass new legislation
Dissent (Major J)
 Reading in is only acceptable where it can be safely assumed the legislature would have remedied the
    underinclusiveness like the court  not a valid assumption here
 Cites Hunter v Southam saying Court should not fill legislative lacunae left be invalidation
Ratio
Court will read in provisions to underinclusive legislation.


MvH
[1999] 2 SCR 3  CB 1398
Facts
    H was the economically stronger party in their lesbian relationship, that lasted from 1982-1992
 M claimed after the break-up for spousal support, under the provisions in the Family Law Act that
    gives spousal support to common law couples, but is restricted to “a man and a woman”
Holding
Provision should be severed, invalidity suspended for 6 months
Reasons (Iacobucci J)
 There is remedial precision
 Reading in to this one section would mean same sex couples are only included in one part, they would
    be excluded from other parts
 Reading in may also have repercussions for other statutes
 Not safe legislature would have passed it with the read in portions
 Delayed invalidity so the legislature can address this omission as part of a comprehensive scheme
Ratio
Reading in is not always appropriate




86
                                                                                                       87
Canada v Hislop
2007 SCC 10  CB 1401
Facts
    Following M v H, Hislop sued for retroactive benefits
Holding
There should not be perpetually retroactive benefits granted here
Reasons (LeBel & Rothstein JJ)
 It is legitimate to limit the retroactive nature of a remedy
 Courts generally grant remedies that are retroactive to the extent claimants will benefit from the ruling
 Key issue when dealing with retroactive remedies: nature and effect of the legal change at issue
 Clear break with the past justifies prospective remedies
     o Protects reasonable and good faith reliance by governments (Miron v Trudel)
     o Would retroactive remedy unduly interfere with the role of legislatures in allocating finances
     o If everything was retroactive, governments and citizens could not be assured of the legal
           consequences of their actions
     o Would retroactivity be more fair to the litigants, by including them in the scheme?
 Qualified immunity
     o Where legislation is found invalid because of a shift in the law, it is not appropriate to impose
           liability on the government except in cases of bad faith or abuse of power
 Reasons for retroactivity in Miron
     o Legislature had already amended the legislation to include the change, so no interference with
           legislative objectives
     o More fair to the successful litigant
     o Distinction was unreasonable even at the time the legislation was passed
 Where the government has collected unconstitutional taxes, the only remedy is restitution to the
    taxpayer
 Where benefits are the problem, it‟s difficult to know what the legislature would have done
     o Could have included new people in existing scheme
     o Could have modified scheme for everyone
     o Could have eliminated benefit
 Factors in the instant case favour limiting retroactivity
     o M v H was a substantial departure from previous law, considering Egan held the opposite
     o Because of Egan, the government‟s underinclusion was the result of reasonable reliance on the
           SCC‟s own jurisprudence
     o Government acted in good faith by attempting to remedy the situation identified in M v H right
           after it was discovered
     o Claim is tantamount to a claim for damages, so they can fuck off
Ratio
Test for limiting retroactivity of remedies.


Little Sisters Book and Art Emporium v Canada
[2000] 2 SCR 1120  CB 1415
Facts
    Customs Tariff prohibits importing obscene materials
 LS imported lesbian porn
 Very high error rates by customs officers in determining whether LS‟s stuff was obscene
 SCC held Customs Tariff is constitutionally valid, but the interference with Little Sisters was undue,
    reverse onus clause is unconstitutional
Reasons (Iacobucci J, dissenting in part)
 Majority (Binnie J) found that beyond the reverse onus (which must be struck down), the only remedy
    necessary is a declaration that LS had its rights violated
 Not appropriate here, government must ensure where it delegates powers, it ensures Charter rights are
    respected

                                                                                                       87
88
   Declarations suffer from vagary, insufficient remedial specificity, inability to monitor compliance,
    subsequent need for litigation to ensure compliance
 Flaws in customs regime are many and apparent, only remedy is to revisit the whole thing and the only
    way to do that is by striking down
Ratio
Court will favour declaratory relief, depending on executive‟s good faith to fix the problem.


Doucet-Boudreau v Nova Scotia
2003 SCC 62  CB 1421
Facts
    DB sued the government for not doing something related to minority language rights
 Trial judge required the government to report back at regular intervals on its progress
Holding
The injunction and continuing supervision is appropriate
Reasons (Iacobucci & Arbour JJ)
 Remedial power under s 24(1) cannot be limited by statutes or the common law
 Appropriate and just in the circumstances
     o Meaningfully vindicates claimants‟ rights and freedoms, taking into account nature of right and
          the situation of violation
     o Means that are legitimate within constitutional democracy – must not depart unduly from
          adjudicative role of courts
     o Fair to the party against whom the remedy is made – no substantial hardships unrelated to
          securing the right
 Reporting order was a pragmatic approach to getting the job done efficiently
 Appellants should not be required to continually seek declarations of essentially the same thing
 The matter was time-sensitive, so it was appropriate
 Left detailed choices to the executive
 Courts have assumed management roles in their equitable powers
     o Preservation of evidence, management of parties‟ assets, supervising transactions relating to
          debtors‟ assets, disposing of property, managing trusts and estates
 Reporting order is not unfair to the government
 Reviewing courts should have deference to the trial judge when he sees a novel remedy as appropriate
Dissent (LeBel & Deschamps JJ)
 Courts should not enter public administration
 Drafting the reporting order is flawed – did not detail obligations
     o Uncertainty breached parties‟ right to procedural fairness
 Breach of separation of powers
     o Court should not administer or oversee the implementation of its orders
     o Must presume judgements will be executed with reasonable diligence and good faith
     o This means respecting the legislature
     o Relationship should be depoliticized – court should not exert pressure
 Functus officio (function has been carried out)
     o Once decision is rendered, judge has no more role in the case
Ratio
Injunctions with reporting provisions are OK.

Standing
   Charter challenge can be
        o Collateral issue in ongoing proceedings
        o Independent action
   Any accused can claim the law under which charges are brought is unconstitutional (Big M)
   Corporations cannot bring independent civil actions seeking declaration of invalidity based on the
    Charter, despite the fact they are subject to regulation under the law and to possible criminal sanctions

88
                                                                                              89
o   Not the case in federalism cases – corporations can challenge a law where its interests are
    directly affected




                                                                                              89

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:11
posted:8/11/2011
language:English
pages:89