For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355

, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only]

CONSTITUTIONAL LAW
BASIC CONCEPTS
[1] SOURCES AND NATURE OF THE CONSTITUTION Constitution Act, 1867 - The British North America Act was renamed the Constitution Act, 1867, in 1982 - Established the rules of Federalism, but did not attempt to codify all constitutional rules. Left open possibility for constitutional conventions. - There are several gaps in this Act, however Constitution Act, 1982 - This Act did 3 main things to Canada’s constitutional law: (1) An amending formula was adopted; (2) The authority over Canada of the UK (imperial) Parliament was terminated; (3) and the Charter was adopted - The phrase “Constitution of Canada” was used for the first time in this Act - The definition of the Constitution of Canada “includes” 3 categories of instruments – (1) Canada Act 1982 (which includes the Constitution Act, 1982); (2) A list of 30 Acts and orders (including the Constitution Act, 1867); (3) Amendments which may be made. The Charter of rights and Freedoms is part of the Constitution of Canada because it is Part I of the Constitution Act, 1982 - The “supremacy clause” is also found in this act: s 52(1) Parliamentary privilege - The federal Houses of Parliament and the provincial legislative assemblies possess a set of powers and privileges that are necessary to their capacity to function as legislative bodies; these powers and rights are known collectively as parliamentary privilege (e.g. freedom of speech in debate) - See discussion in Canada v Vaid - Source = part of “Constitution of Canada (New Brunswick v Canada); but Hogg criticizes this a bit Case law - Another important source of constitutional law (e.g. unwritten principles developed in case law: see Rumeration of Judges; Secession Reference) - SCC has carved out an active and creative role in interpreting the Constitution. This raises the concern that the Court is trespassing into fields more properly left to the legislative and executive branches of government

Royal prerogative - Consists of the powers and privileges accorded by the common law to the Crown; it is a branch of common law, because it is the decisions of the courts which have determined its existence and extent Conventions - Conventions are rules of the constitution that are not enforced by courts. Because they are not enforced as such, they are best regarded as non-legal rules, but because they do regulate the working of the constitution, they are important to know - Conventions prescribe the way in which legal powers should be exercised. Their breach, however, does not give rise to legal remedies. - An important conventions case is the Patriation Reference (see the discussion in the book) Reference re Secession of Quebec Background  This Reference requires consideration of complex legal and constitutional questions, and it isn’t possible to answer the questions without having regard to a number of underlying principles  The Constitution Act, 1982 is now in force. Although the Constitutional texts have a primary place in determining constitutional rules, they are NOT exhaustive. The Constitution also embraces UNWRITTEN rules  These supporting principles and rules, which include constitutional conventions and the workings of Parliament, are a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution.  In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive legal framework for our system of government. Such principles and rules emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning.  There are FOUR fundamental and organizing principles of the Constitution which are relevant to addressing the question before us (although this enumeration is by no means exhaustive): federalism; democracy; constitutionalism and the rule of law; and respect for minorities Nature of principles  These principles inform and sustain the constitutional text; they are the vital unstated assumptions upon which the text is based. The following discussion addresses the four foundational constitutional principles that are most germane for resolution of this Reference: federalism, democracy, constitutionalism and the rule of law, and respect for minority rights. These defining principles function in symbiosis. No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other.

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] province. The federal structure adopted at Confederation enabled French-speaking Canadians to form a numerical majority in the province of Quebec, and so exercise the considerable provincial powers conferred by the Constitution Act, 1867 in such a way as to promote their language and culture. It also made provision for certain guaranteed representation within the federal Parliament itself (2) Democracy  The principle of democracy has always informed the design of our constitutional structure, and continues to act as an essential interpretive consideration to this day. The democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated. It is perhaps for this reason that the principle was not explicitly identified in the text of the Constitution Act, 1867 itself Democracy is commonly understood as being a political system of majority rule. Democracy encompasses a number of values, including: respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. In institutional terms, democracy means that each of the provincial legislatures and the federal Parliament is elected by popular franchise. In individual terms, the right to vote in elections to the House of Commons and the provincial legislatures, and to be candidates in those elections, is guaranteed to "Every citizen of Canada" by virtue of s. 3 of the Charter. The relationship between democracy and federalism means, for example, that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level. No one majority is more or less "legitimate" than the others as an expression of democratic opinion, although, of course, the consequences will vary with the subject matter Democracy in any real sense of the word cannot exist without the rule of law. It is the law that creates the framework within which the "sovereign will" is to be ascertained and implemented. To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation (3) Constitutionalism and the Rule of Law  The 'rule of law' is a highly textured expression, importing many things which are beyond the need of these reasons to explore but conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority". At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.

Use of unwritten principles  The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a "living tree", to invoke the famous description in Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136  The effect of the preamble to the Constitution Act, 1867 was to incorporate certain constitutional principles by reference  In the Provincial Judges Reference, we determined that the preamble "invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text"  Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (i.e they have "full legal force", as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature.  So, the principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments  In other words", as this Court confirmed in the Manitoba Language Rights Reference, "in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada" (1) Federalism  It is undisputed that Canada is a federal state. In a federal system of government such as ours, political power is shared by two orders of government: the federal government on the one hand, and the provinces on the other. Each is assigned respective spheres of jurisdiction by the Constitution Act, 1867. In interpreting our Constitution, the courts have always been concerned with the federalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been the lodestar by which the courts have been guided. This underlying principle of federalism, then, has exercised a role of considerable importance in the interpretation of the written provisions of our Constitution. In the Patriation Reference, supra, at pp. 905-9, we confirmed that the principle of federalism runs through the political and legal systems of Canada. The principle of federalism recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] 3 Elements of Rule of Law: i) One law for all; ii) there is an actual order of positive laws that preserves and embodies the normative order; iii) the relationship b/w the state and the individual must be regulated through a series of legal rules. Importance of Rule of Law cannot be overemphasized; this principle is the key to understanding the legal framework of the State. This is the fundamental principle of legality; the ultimate foundation of the Constitution.  Const’ism is simply that the gov’t must comply with the Constitution (4) Protection of Minorities:  There are a number of specific constitutional provisions protecting minority language, religion and education rights. Undoubtedly, the three other constitutional principles inform the scope and operation of the specific provisions that protect the rights of minorities. The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities. COMMENT: These principles are: not exhaustive (complete, thorough); must be taken together; no single principle trumps another. [2] AMENDING PROCEDURES AND SECESSION - See Constitution Act, 1982, Part V, ss 38-49 (these provisions override the Supreme Court’s ruling in Patriation Reference)  Federal parliament alone (s 44): Federal Parliament, by ordinary legislation, can amend parts of the Constitution of Canada which relate to the “Executive government of Canada or the Senate and House of Commons”  Provincial legislature alone (s 45): Each provincial Legislature authorized, by ordinary legislation, to amend the “constitution of the province”. That term isn’t defined, but has been interpreted to include amending law “that bears on the operation of an organ of government of the province”. Secession Reference re Secession of Quebec Operation of Constitutional Principles in the Secession Context  The secession of a province from Canada must be considered, in legal terms, to require an amendment to the Constitution. The amendments necessary to achieve a secession could be radical and extensive.  But the democratic principles identified above would demand that considerable weight be given to a clear expression by the people of Quebec of their will to secede from Canada, even though a referendum, in itself and without more, has no direct legal effect, and could not in itself bring about unilateral secession – the secession of a province would have to occur by way of an amendment to the Constitution; it would be these negotiations that would help develop the appropriate amendment  The federalism principle, in conjunction with the democratic principle, dictates that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire. The rights of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others  The conduct of the parties in such negotiations would be governed by the same constitutional principles which give rise to the duty to negotiate: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities  Negotiations would be political issues. But the non-justiciability of political issues that lack a legal component does not deprive the surrounding constitutional framework of its binding status, nor does this mean that constitutional obligations could be breached without incurring serious legal repercussions.  To the extent that a breach of the constitutional duty to negotiate in accordance with the principles described above undermines the legitimacy of a party's actions, it may have important ramifications at the international level  The secession of Quebec from Canada cannot be accomplished by the National Assembly, the legislature or government of Quebec unilaterally, that is to say, without principled negotiations, and be considered a lawful act

Part V of Constitution Act, 1982:  General amending procedure (s 38) (50-70 formulae): Applies when the other, more specific, procedure don’t apply, and for those matters listed in s 42 (s 42 requires that the general amending procedure be used for six defined classes of amendments to the Constitution). Requires amendment to be authorized by resolutions by both Houses of Federal Parliament, and resolutions of the legislative assemblies of at least 2/3 of provinces, provided they represent at least 50 % of population. See time limits (s 39(1) and (2), and opting out provision (s 38(3)).  Unanimity procedure (s 41): List of matters whose alteration in the Constitution requires agreement by all provinces  Some-but-not-all-provinces procedure (s 43): There are provisions of the Constitution of Canada which apply to one or more, but not all provinces. For amendments of this kind, s 43 requires authorizing resolutions of only those provinces to which the amendment applies

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only]  Any attempt to effect the secession of a province from Canada must be undertaken pursuant to the Constitution of Canada, or else violate the Canadian legal order. However, the continued existence and operation of the Canadian constitutional order cannot remain unaffected by the unambiguous expression of a clear majority of Quebecers that they no longer wish to remain in Canada - Courts often have to enforce distribution of powers rules (the rules of federalism): the courts have to determine whether a particular statute comes within the powers conferred by the Constitution on the legislative body that enacted the Statute - A second function of judicial review is to enforce the Charter restrictions and the other non-federal restrictions

[3]

FEDERALISM

Federalism - In a federal state, governmental power is distributed between a central authority and several regional authorities, in such a way that every individual in the state is subject to the laws of the two authorities - The central and regional authorities are “coordinate” – i.e. neither is subordinate to the other Confederation - In Canada, contrary to usage of the word confederation outside Canada, a central government was established which was in no sense the delegate of the provinces. It was independent of the provinces and coordinate with them Special status - Special status is the term which has applied to proposals for constitutional change under which one province would possess large powers than the other provinces. Although a number of provisions in the Constitution apply to one province or some, it cannot be said that there is a special status for any province Supremacy of the Constitution - s 52(1) of the Constitution Act, 1982 expressly affirms the supremacy of the Constitution over all other laws Role of the courts - The provisions of the Constitution distributing legislative power are couched in general language, not free of ambiguity. Any federal system therefore has to have machinery for settling disputes about the distribution of legislative power’ - S 52(1) states that the Constitution is the supreme law of Canada, and “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This section is the basis for judicial review in Canada

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] [1] PRINCIPLES OF INTERPRETATION

- It is the distribution of powers b/w a central authority (federal Parliament) and regional authorities (provincial legislatures) that constitutes the essence of federalism. - The Constitution defines the kinds of laws that may be enacted by federal Parliament and provincial Legislatures - This part examines the techniques, language and doctrines applied by courts in carrying the review of distribution of powers questions (i.e. challenges on “federal” grounds) - The distribution of legislative power b/w the federal Parliament and the provincial Legislatures is mainly set out in ss 91 and 92 of the Constitution Act, 1867 Priority between federal and Charter grounds - Federal arguments should precede Charter ones. And if you are arguing both, you should frame the Charter argument as one “in the alternative” Process/reasoning in judicial review - Two steps are involved: STEP 1: the characterization of the challenged law STEP 2: the interpretation of the power-distributing provisions of the Constitution STEP 1: Characterization of laws (a) “Matter” and the “pith and substance doctrine” - The first step is to identify the matter of the challenged law, i.e., identify the dominant or most important characteristic of the challenged law (the pith and substance). - Court will look beyond the direct legal effects to inquire into, for example, the social or economic purposes which the statute was enacted to achieve. If the Court concludes that the purpose of, for e.g., an ostensible tax is to regulate or destroy the banks, then the law will be characterized as being in relation to banking and will be held to be invalid if it was enacted by a province - Difficulty is where statute has features which come within a provincial AND federal head of power. Here, you make a judgment as to which is the most important feature of the law and characterize the law by that feature (the dominant feature is the “pith and substance” or “matter” of the law”; the other feature is merely incidental). - This distinction is commonly expressed by using the phrase “in relation to”. I.e. the impugned act was “in relation to X” and merely “affected” Y. - Essentially, 2 things must be examined: the purpose of the enacting body, and the legal effect of the law (Reference re Firearms Act) (see below) (b) “Singling out” - The singling out of undertakings is not conclusive of pith and substance

DISTRIBUTION OF POWERS

in Alberta Bank Taxation Reference. That is. If this argument succeeds. although it applied to other corporations as well as banks. but it’s simply INAPPLICABLE to the extra-jurisdictional matter .g. a statute is to be interpreted as being within the power of the enacting legislative body Interjurisdictional immunity .Policy: THE CHOICE MUST BE GUIDED BY A CONCEPT OF FEDERALISM – is this the kind of law that should be enacted at the federal level or provincial level? .Another way (alternative to the pith and substance way) of attacking a law is by characterizing the law as coming within a class of subjects that is outside the jurisdiction of the enacting legislative body.In characterizing a statute (i. the law was characterized as in relation to taxation. the case law demonstrates that its natural area of operation is in relation to those heads of legislative authority that confer on Parliament power over enumerated federal things.As part of the first step in the division of powers analysis. (iii) policy . not banking (Bank of Toronto v Lambe) (c) “Double aspect” *** . how to choose which is the pith and substance? . and to argue that the law should be INTERPRETED (i. people. v.A law that may be enacted by either Parliament or a provincial legislature is what the double aspect doctrine refers to.7 and property and civil rights 92.Although the doctrine is in principle applicable to all federal and provincial heads of legislative authority. when in substance they were attempting to ban abortions (criminal – federal power). call Andrew @ (647) 878-6355.When do you apply this doctrine? Courts are not clear about this. When the court finds that the federal and provincial characteristics of a law are roughly equal in importance. yet. a court must consider the effect of the statute. In Big M and Edwards Books. the prohibition of work on Sunday fell within federal or provincial competence depending upon whether the purpose of the prohibition was religious or secular .Legislative purpose in characterizing the matter of a ostensible law is important . and are therefore competent to both the Parliament and a Legislature. [Note: Toronto and surrounding area only] .16).E. you consider the purpose of the law .To determine the purpose. matter). whether the law.The colourability doctrine applies the maxim that a legislative body cannot do indirectly what it cannot do directly .g. not necessarily the stated purpose (Canadian Western Bank) (e) Effect *** .e.ca . For example.Whenever possible. in substance.Form is not controlling in the determination of essential character . attempts by the federal Parliament to regulate insurance by incorporating provisions into the Criminal Code have been struck down as colourable .Only if a core competence/vital/essential part of a federal undertaking is impaired by a provincial law could the provincial law be said to be inapplicable.Judicial restraint must be invoked Reading Down . Morgentaler the province of Nova Scotia passed a law prohibiting abortion clinics under the guise that it was protecting health services (hospitals 92. Securities regulation is another field where some laws have a double aspect . If the core competence or vital part is merely affected (without any adverse consequence) . the legislation.So.E.Can look at (i) legislative scheme/relevant extrinsic material. But one dude says that it is applicable when the contrast between the relative importance of the two features is not so sharp. read down) so as not to apply to the matter that is outside the jurisdiction of the enacting body. He successfully completed all of the NCA requirements in the January. (ii) judicial decisions on similar kinds of statutes. laws prescribing rules of conduct on the roads have a double aspect. in R.But must look to true purpose. A taxing statute.E. works or undertakings . or e-mail him @ andrew. look to: (i) The preamble (ii) Intention of the legislative body that drafted the statute (iii) The mischief that the law is trying to rid .e.When you have several possible dominant purposes (i.E. was in reality directed at banking  Federally regulated undertakings . an examination of the actual effect is useful in determining if the law was "colourable". did impose a special tax rate on banks alone.g. 2010 sitting. addresses a matter completely different from what the law addresses in form. although ostensibly designed as a taxation measure. identifying its matter of pith and substance). (h) Criteria of choice .g.e.For tutoring on this subject by the person who created these notes.captan@utoronto. in the sense that the court will consider how the statute changes the rights and liabilities of those who are subject to it (f) Efficacy . then the conclusion is that laws of that kind may be enacted by either Parliament or a Legislature (d) Purpose *** . the law isn’t invalid.Court’s are not allowed to judge the efficacy of a statute (g) Colourability *** .

still. REASONING: Federalism  It is beyond question that federalism has been a “fundamental guiding principle” of our constitutional order since the time of Confederation  Each head of power was assigned to the level of government best placed to exercise the power  Constitutional doctrines permit an appropriate balance to be struck in the recognition and management of the inevitable overlaps in rules made at the two levels of legislative power.E.Once the matter (or pith and substance) of a challenged law has been identified. The corollary to this analysis is that legislation whose pith and substance falls within the jurisdiction of the legislature that enacted it may. must comply with provincial laws regulating the promotion and sale of insurance.ca . 2010 sitting.C. the second stage in judicial review is to assign the matter to one of the “classes of subjects” (or heads of legislative power) specified in the Constitution. or only certain provisions.g. the impugned law was the civil remedy in the federal competition statute.There are certain general principles that cut across all heads of power and will be discussed here  Exclusiveness .1) – YOU NEED TO LOOK AT THE ANCILLARY DOCTRINE). ISSUE: The question that arises on this appeal is the extent to which banks.The lists in ss 91 and 92 are mutually exclusive (but.captan@utoronto. The analysis may concern the legislation as a whole. no immunity applied.IF ONLY A CERTAIN PROVISION OF A LARGER STATUTORY SCHEME IS BEING CHALLENGED (AS IN THE GENERAL MOTORS CASE AND THE VALIDITY OF S 31. 1867 and that the Insurance Act and its associated regulations are constitutionally inapplicable and/or inoperative to the banks’ promotion of insurance. laws may have a double aspect – ie. the Privy Council held a provincial statute levying a tax on banks to be invalid on the basis that its effects on banks were so great that its true purpose could not be (as the province argued) the raising of money by levying a tax (in which case it would have been intra vires).For tutoring on this subject by the person who created these notes. but only in a “limited way”.TEST: Measure the degree of encroachment of the impugned provision on the other government’s sphere of power (the more significant the encroachment. This law did intrude into provincial power over property and civil rights. the appellant banks sought a declaration that their promotion of insurance is “banking” under s. [Note: Toronto and surrounding area only] by a provincial law.. Merely incidental effects will not disturb the constitutionality of an otherwise intra vires law. Upon the coming into force of the Insurance Act. at least to a certain extent. it was sufficient to test the validity of the law by the rational connection test. a stricter test (“truly necessary”) is appropriate (General Motors case) . 117 (“Alberta Banks”).g.g. • If the larger legislative scheme is valid. . and thus invalid) . Attorney-General for Canada. two matters)  Ancillary power *** .The latter is used sparingly by courts. To determine the pith and substance. to attribute an enactment to a matter in relation to which the legislature acting has been empowered to make laws. Therefore. He successfully completed all of the NCA requirements in the January. affect matters beyond the legislature’s jurisdiction without necessarily being unconstitutional. In General Motors. the rational connection test is appropriate (ii) For MAJOR encroachments. the dominant purpose of the legislation is still decisive. whether the affect is direct or indirect (Canadian Western Bank v Alberta) [This is the newest test]  Distinguish between pith and substance analysis and interjurisdicitonal immunity . The rational connection to the legislative scheme was that the civil remedy. preamble/purpose clauses. would improve the efficacy of the competition law Canadian Western Bank v Alberta FACTS: Provincial statute enacted to enforce laws on federally chartered banks who sell credit-related insurance to customers. the more strict the test is). should normally rely on pith and substance analysis STEP 2: Interpretation of the Constitution  Relevance . call Andrew @ (647) 878-6355. The courts must be able from its language and its relevant circumstances. while recognizing the need to preserve sufficient predictability in the operation of the division of powers Constitutional Doctrines  Pith and substance doctrine: The resolution of a case involving the constitutionality of legislation in relation to the division of powers must begin with an analysis of the pith and substance of the impugned legislation. but was rather the regulation of banking (which rendered it ultra vires. then the impugned provision may also be found to be valid because of its relationship to the larger scheme by way of this doctrine . and extrinsic evidence). in Attorney-General for Alberta v. as federally regulated financial institutions. or e-mail him @ andrew. two aspects of the law must be examined: (1) The PURPOSE of the enacting body: Can look to intrinsic evidence (e. At this stage of the analysis. not necessarily the stated purpose (2) The LEGAL EFFECT of the law: E. and then must determine how necessary the impugned provision is to the otherwise valid legislative scheme: (i) For MINOR encroachments. [1939] A. 91(15) of the Constitution Act. Must look to TRUE PURPOSE though. by providing a means and an incentive to private enforcement.

The federal legislation is permissive not exhaustive. A classic example is that of dangerous driving: Parliament may make laws in relation to the “public order” aspect. by the other level. which recognize that overlapping powers are unavoidable . the pith and substance of the Alberta Insurance Act relates to property and civil rights in the province under s.Court restricts the operation of the doctrine when it IS applied: The provincial legislation must IMPAIR a VITAL/ESSENTIAL aspect of the federal subject or undertaking (i. Also. recognizes that where laws of the federal and provincial levels come into conflict. the powers of one level of government must be protected against intrusions.“Not only should the doctrine of interjurisdictional immunity be applied with restraint. not concurrent powers. the sweeping immunity argued for by the banks in this appeal is not acceptable in the Canadian federal structure.For tutoring on this subject by the person who created these notes. nevertheless. in practice. 92(13) of the Constitution Act. this doctrine has in the past most often protected federal heads of power from incidental intrusion by provincial legislatures. that it will be largely reserved for those heads of power that deal with federal things. nor should we accept the invitation of the appellants to turn it into a doctrine of first recourse in a division of powers dispute” . although these powers are bound to interact in the realities of the life of our Constitution. the federal purpose HELD: (1) The provincial law was valid under property and civil rights. in certain circumstances.captan@utoronto.“Although the doctrine of interjurisdictional immunity has a proper part to play in appropriate circumstances. particularly compelling. a broad application of the doctrine to “activities” creates practical problems of application much greater than in the case of works or undertakings.. a view of federalism that puts greater emphasis on the legitimate interplay between federal and provincial powers was championed by the late Chief Justice Dickson. The “asymmetrical” application of interjurisdictional immunity is incompatible with the flexibility and co-ordination required by contemporary Canadian federalism . a broad use of the doctrine of interjurisdictional immunity runs the risk of creating an unintentional centralizing tendency in constitutional interpretation. things or persons. the doctrine of interjurisdictional immunity. or e-mail him @ andrew.Further. must result in adverse consequences). In most cases. that is. the banks have been promoting insurance in Alberta while complying with both the federal Bank Act and the provincial Insurance Act.e. As stated. works or undertakings. the case law demonstrates that its natural area of operation is in relation to those heads of legislative authority that confer on Parliament power over enumerated federal things. call Andrew @ (647) 878-6355. and is a valid provincial law. there must be a rule to resolve the impasse  Interjurisdictional Immunity doctrine: . .g. In our view. double aspect and federal paramountcy are designed to promote. . and compliance by the banks with the provincial law complements. . and provincial legislatures in relation to its “Property and Civil Rights in the Province” aspect That being said.Despite the efforts to find a proper role for the doctrine. the application of interjurisdictional immunity has given rise to concerns by reason of its potential impact on Canadian constitutional arrangements . This means. . recognizes that our Constitution is based on an allocation of exclusive powers to both levels of government. (2) The claim to interjurisdictional immunity should be rejected (credit related insurance is not a vital or essential element of the banking undertaking). or what is absolutely indispensable or necessary to enable an undertaking to carry out its mandate in what makes it specifically of federal (or provincial) jurisdiction. This is not a case where the provincial law prohibits what the federal law permits.Broadly speaking. Aboriginal peoples and corporations created by the federal Crown) specifically of federal jurisdiction . He successfully completed all of the NCA requirements in the January. (3) Federal paramountcy does not apply on the facts of this case . even incidental ones. we intend now to make it clear that the Court does not favour an intensive reliance on the doctrine.Interjurisdictional immunity should in general be reserved for situations already covered by precedent. things (e. [Note: Toronto and surrounding area only] Here.While the text and logic of our federal structure justifies the application of interjurisdictional immunity to certain federal “activities”. The first. the courts have developed two doctrines. Although the doctrine is in principle applicable to all federal and provincial heads of legislative authority. people. who described the doctrine of interjurisdictional immunity as “not . the doctrine of interjurisdictional immunity was used to protect that which makes certain works or undertakings. The double aspect doctrine recognizes that both Parliament and the provincial legislatures can adopt valid legislation on a single subject depending on the perspective from which the legislation is considered.g. as discerned from the constitutional division of powers as a whole. Since 2000. it must also be acknowledged that. Aboriginal lands) or persons (e. or where in the past its application has been considered absolutely indispensable or necessary to enable Parliament or a provincial legislature to achieve the purpose for which exclusive legislative jurisdiction was conferred.. 1867. persons or undertakings. whose limits are more readily defined (The Court goes on to identify a number of problems with invoking the doctrine). which remains a matter generally falling within provincial jurisdiction  The double aspect doctrine: The double aspect doctrine applies within the course of the pith and substance analysis. but with rare exceptions it has been so applied. a broad use of the doctrine would be inconsistent with the flexible federalism that the constitutional doctrines of pith and substance. The mere fact that the banks now participate in the promotion of insurance does not change the essential nature of the insurance activity. not frustrates. . a pith and substance analysis and the application of the doctrine of paramountcy have resolved difficulties in a satisfactory manner”  The Doctrine of Federal Paramountcy: The doctrine of federal paramountcy is also inapplicable because neither operational incompatibility nor the frustration of a federal purpose have been made out. It is these doctrines that have proved to be most consistent with contemporary views of Canadian federalism. depending on the various “aspects” of the “matter” in question. For this purpose. The second. the doctrine of federal paramountcy. 2010 sitting.However.ca .

captan@utoronto.. the doctrine of federal paramountcy stipulates that the provincial law must yield to the federal law.The doctrine of federal paramountcy says that: where there are inconsistent or conflicting federal and provincial laws. He successfully completed all of the NCA requirements in the January. 6 of The Tobacco Control Act and s.By far the most important head of provincial power. inoperative in light of s. even if they are not contradictory of the federal. and since the criminal law power is prohibitory in nature. Constitution Act. 30 of the Tobacco Act and s.The most accurate way to describe this is to say that the provincial law is rendered inoperative to the extent of the inconsistency Rothmans. it is difficult to imagine how granting retailers a freestanding right to display tobacco products would assist Parliament in providing “a legislative response to a national public health problem of substantial and pressing concern  It is plain that dual compliance is possible in this case. call Andrew @ (647) 878-6355. courts have accepted a negative implication test for inconsistency: a federal law may be interpreted as covering the field and precluding any provincial laws in that field. 30 (to circumscribe the Tobacco Act’s general prohibition on promotion of tobacco products set out in s. or e-mail him @ andrew. [Note: Toronto and surrounding area only] FACTS: The respondent company sought a declaration that s.  Section 6 of the Tobacco Control Act does NOT frustrate the legislative purpose underlying s 30 of the federal Act. .For tutoring on this subject by the person who created these notes.Once it has been determined that a federal law is inconsistent with a provincial law.Can. 6 of The Tobacco Control Act frustrate Parliament’s purpose in enacting s. but the effect of the provincial law would be to frustrate the purpose of the federal law. this has been rejected (O’Grady v Sparling) (b) Express extension of paramountcy: . A retailer can easily comply with both s. the provincial legislation is inoperative to the extent of the inconsistency  Provincial legislation that displaces or frustrates Parliament’s legislative purpose is also inconsistent for the purposes of the doctrine  Parliament did not grant retails a positive entitlement to display tobacco products: as the Act was enacted under the criminal power.The doctrine applies ONLY IF the Federal law and provincial law are independently valid (i.Arises where it is impossible to obey both the federal and provincial law . does s. for example. two questions arise. by virtue of the paramountcy doctrine. it is the federal law which prevails to the extent of the inconsistency . 6 of the Saskatchewan Tobacco Control Act is. 6 of The Tobacco Control Act in one of two ways: by admitting no one under 18 years of age on to the premises or by not displaying tobacco or tobacco-related products.W/in provincial jurisdiction . 1867 Background . 19) remain fulfilled HELD: The doctrine of paramountcy does not apply [2] PARAMOUNTCY . Overlap and duplication . Benson & Hedges Inc v Saskatchewan [3] PROPERTY AND CIVIL RIGHTS: s 92(13). 6 inoperative on the basis of a practical inconsistency between the two provisions. 30 of the Tobacco Act so as to be rendered inoperative through the paramountcy doctrine. First. In Canada. Benson & Hedges Inc (tobacco advertising case) Negative implication (a) Covering the field: .ca . must pass the pith and substance test first) Definition of inconsistency (a) Express contradiction . and it is possible to comply with both laws. ISSUE: Whether s.Where there are overlapping federal and provincial laws. The Court of Appeal set aside that decision and declared s. Benson & Hedges Inc – no conflict b/c possible to comply with both by following the provincial legislation (b) Frustration of federal purpose .In Rothmans. provisions enacted pursuant to it do not ordinarily create freestanding rights. 2010 sitting. 6 bans all advertising. 6 of The Tobacco Control Act is sufficiently inconsistent with s. can a person simultaneously comply with s. 30 of the Tobacco Act? Second. Both the general purpose of the Tobacco Act (to address a national public health problem) and the specific purpose of s. display and promotion of tobacco or tobacco-related products in any premises in which persons under 18 years of age are permitted. while s.In US and OZ. Parliament extend the doctrine of paramountcty beyond the case of an actual conflict in operation? Yes. The Court of Queen’s Bench dismissed the company’s application. 30 of the federal Tobacco Act.e.See Rothmans. . Section 30 allows retailers to display tobacco and tobacco product-related brand elements and post signs indicating the availability and price of tobacco products.Duplication is NOT a test of inconsistency (Multiple Access case) Effect of inconsistency . for example. Second. 30 of the Tobacco Act? REASONING:  The doctrine of federal paramountcy dictates that where there is an inconsistency b/w validly enacted but overlapping provincial and federal legislation. another case of inconsistency arises .

order and good government power. [Note: Toronto and surrounding area only] . and. if the marketing law merely AFFECTS Insurance  Provincial power . provincially incorporated companies. and property and civil rights. strikes. But there are a number of exceptions. These statutes’ preambles indicate that the powers over trade and commerce. A federal law applicable to insolvent insurance companies was upheld (Wentworth Insurance) Business in general .But the Supreme Court has interpreted trade and commerce more liberally in recent times. on the one hand. insist that the modification of the employment relationship is exclusively w/in property and civil rights.Labour standards legislation property and civil rights (Labour Conventions) .They regulate labour relations in industries which are part of a federal undertaking (whether in the private or public sector) (see Stevedores Reference – dock loaders = necessary for navigation and shipping).g. there’s still a substantial federal presence in the field.Regulations of professions and trades typically take the form of restrictions on entry. and administration by a governing body. and not trade and commerce (Citizens Insurance v Parsons) . . call Andrew @ (647) 878-6355. 2010 sitting. including milk made OUTSIDE province.Still.For tutoring on this subject by the person who created these notes.g. or e-mail him @ andrew. . on a voluntary basis. Parsons)  Federal power . . which include fee-setting. has traditionally been regarded by the courts. Chemical Workers. and federal competence is the exception in the context of regulating labour relations Marketing/Regulating production and trade . such as Unemployment Insurance Reference and Oil. which fall within the federal power (e.Distinguish b/w civil rights and liberties.Encompasses most of the legal relationships between persons in Canada.g. The law relating to property.Industrial peace (e. restraints on business fall into the category of property and civil rights in the province . even when the industry and particular firms extended beyond the boundaries of any one province (Insurance Reference. the fact that the employer is an interprovincial railway will not sweep a group of e/ees into federal jurisdiction.g. or the more general regulation of prices or profits or combinations. if they operate a hotel which is functionally separate from the railway).However.The required connection with the federal undertaking is a functional or operational one (e. contracts. succession. NO DOUBT that provinces can regulate INTRAprovincial trade (because that deals largely with contracts etc).Early attempts by Federal Parliament to enact marketing schemes under the trade and commerce power were struck down by the Privy Council. . although they lack the power to regulate INTERprovincial trade.But marketing has interprovincial effects (on consumers): so to what extent should a province be permitted to burden interprovincial trade in the course of regulating intraprovincial trade? (i) Shannon v Lower Mainland Dairy: Provincial scheme for compulsory marketing of milk upheld and applied to milk sold in province. as they are different Professions and trades .captan@utoronto.Earliest decision involved an Ontario statute required that certain conditions be included in every policy of fire insurance entered into in Ontario. some industries have been held to fall within the federal jurisdiction under the peace. lockouts) falls w/in property and civil rights (Toronto Electric) .But the Fed government continues to regulate a substantial part of the insurance industry under statutes covering British and foreign companies. the family.The point is that the regulation of an industry.E. which decided that. coupled with rules of conduct. provincial competence is the RULE. namely aeronautics and the production of atomic energy) . He successfully completed all of the NCA requirements in the January. . but in terms of its immediate impact upon freedom of contract and proprietary rights – in these terms. notwithstanding the important federal aspects presented by the relief of nation-wide unemployment  Federal power . it was held that the regulation of the terms of the contracts came within property and civil rights. That decision was followed by Carnation Co v Quebec.ca . this falls within s 92(13) (Krieger) Labour relations  Provincial power . on the other . not in terms of its ultimate.Generally falls within property and civil rights (Toronto Electric – leading case) .Other decisions.The insurance cases discussed suggest that the regulation of business was ordinarily a matter w/in property and civil rights in the province. federally incorporated companies.Most of the major constitutional cases have turned on the competition between one or more of the federal heads of power. But a lot of public law has also been swept under this rubric . aliens and insolvency are relied upon as supporting their constitutionality . labour relations and torts is mainly w/in the provincial jurisdiction under s 92(13).The regulation of a particular industry comes within property and civil rights in the province. started w/ assumption that ANY interference w/ contracts was a matter w/in property and civil rights. often nation-wide objectives.

call Andrew @ (647) 878-6355. He successfully completed all of the NCA requirements in the January. then statute will likely be intra vires. to be valid. 2010 sitting. their transfer and general characteristics are normally within the property and civil rights power.ca .Alta: Court divided evenly on the question whether a provincial law which denied property rights in slot machines and provided for the confiscation of slot machines was a property or a criminal law Summary of principles (1) The regulation of a particular industry or business falls within the property and civil rights power (see Insurance Reference. although federal government can regulate labour relations which are a required part of a federal undertaking) (Stevedores Reference etc) (3) The regulation of INTRAprovincial trade falls within the property and civil rights power.g. Scheme imposed quotas on producers of potash in the province. Where a province seeks to control ownership or usage of property in order to accomplish a NON-proprietary objective.g. but it AIMED at regulating such trade.The creation of property rights. and held that the provincial statute could impose production quotas on all producers irrespective of the destination of their output (this part is important). The scheme applied to all eggs sold in Man. In this case. then there is a concern that it might be trampling on another head of power (e. so long as the majority of the product is not being exported (Central Canada Potash) (4) Where production controls are imposed for physical conservation purposes.For tutoring on this subject by the person who created these notes. Carnation shipped the bulk of its product outside the province. their transfer. and their general characteristics. a different story emerges: (vi) Spooner Oils: Where production controls are imposed for a physical conservation purpose. but said that the situation may be different where a province establishes a marketing scheme with price fixing as its central feature [Hard to reconcile this with Re Agricultural Products.captan@utoronto.. falls within the property and civil rights power (Toronto Electric etc). in 1876. including eggs produced elsewhere. regardless of whether the output is interprovincial (sine that is generally a provincial matter) (Re Agricultural Products). enacted legislation regulating fire insurance policies that specified the standard conditions which were "deemed to be part of every policy of fire . criminal law) (e. in fact. virtually all the potash was going to be exported] When the law is aimed at conservation purposes. Court held that production controls are “ordinarily: matters w/in provincial authority. as a general rule. there is NO doubt that the province has power Securities regulation .Difficulty has arisen in cases where a province has sought to control the ownership or use of property in order to accomplish a non-proprietary objective which it could not accomplish by more direct means: (i) Switzman v Elbing: A provincial law which prohibited the use of a house to propagate communism or bolshevism was characterized as either a criminal law or law in relation to speech. because they both essentially dealt with price fixing. the legislation cannot be aimed at regulating interprovincial marketing (Manitoba Egg Reference). (v) Central Canada Potash v Sask: SCC struck down Sask’s prorationing scheme for potash produced in province. Court said that statute regulated marketing and not only affected interprovincial trade. then the matter falls within the property and civil rights power (Spooner Oils) (5) The creation of property rights. that doesn’t mean the law is invalid (in this case. and so it was invalid as an attempt to regulate such trade [Hogg thinks this is an odd case. Switzman) ---Citizen Insurance Company v. and not as a mere supplement to Criminal Code offences in respect of disorderly houses” (iii) Johnson v A-G. and difficult to see why it didn’t follow Shannon] (iv) Re Agricultural Products: Upheld scheme regulating national marketing of eggs (which included federal and provincial acts). Parsons FACTS: Ontario.Provinces have power to regulate the trade of securities. even though it may have interprovincial effects (Shannon v Lower Mainland Dairy). Parsons) (2) The regulation of contracts falls under the property and civil rights power (Parsons) (2) The regulation of labour relations. however. SCC upheld the scheme. But the provinces can regulate production schemes. Court acknowledged that production controls were ordinarily matters w/in provincial authority. and the SCC nevertheless held that the marketing law was “in relation to” intraproviincial trade) (iii) Manitoba Egg Reference: SCC struck down a provincial scheme to regulate the marketing of eggs. [Note: Toronto and surrounding area only] interprovincial trade. but might want to look to the destination of the product – if the majority of product is to be consumed within province. as a matter falling within property and civil rights Property  General . are w/in property and civil rights in the province . not property (ii) Beard v Dawson: A provincial law which prohibited the use of a house as a “disorderly house” was characterizes as a property law. or e-mail him @ andrew. Thus.

6 million in property has been ordered forfeited under the CRA of which approximately $1 million had been paid out to direct victims. such as the business of fire insurance in a single province.000 had been paid in grants to various bodies on victims’ issues. 91(2). The Respondent. including the terms and conditions of the contracts) HELD: Judgement for the Respondent. 2001. in an appropriate case. Chatterjee v Ontario (A-G) FACTS: C found with lots of money. no precedential value. The practical (and intended) effect is also to take the profit out of crime and to deter its present and would-be perpetrators STEP 2 (Assignment to heads of legislative power):  Once the “pith and substance” is ascertained. therefore. a statement of legislative intent is often a useful tool to look for purpose [Analyse words. call Andrew @ (647) 878-6355. courts will look how the legislation as a whole affects the rights and liabilities of those subject to its terms (Morgantaler). a reviewing court will look beyond the legal effect — beyond the statute’s “four corners” — to examine “the actual or predicted practical effect of the legislation in operation” (Morgentaler). When appropriate. the Appellant argued that it was not bound by the Provincial Insurance Act because it was ultra vires of the province's powers. leaving $1.  There are two important ratios to note about this case. REASONING:  Crime imposes significant costs at every level of government  The appellant’s argument is the forfeiture of property tainted by crime in relation to federal offences. Forfeiture is the transfer of property from the owner to the Crown. Forfeiture does not result in the conviction of anybody for any offence. an insurance company had the power to omit any of the additional provisions provided it warned the policy purchaser of the changes. including the Peel Police Internet Child Exploitation Unit. The practical (and intended) effect is to take the profit out of crime and to deter its present and would-be perpetrators. 94A and 95) to determine if the law comes within the jurisdiction of the enacting legislature. and come up with the GENERAL/OVERARCHING purpose(s)]  Re: the effect. [Note: Toronto and surrounding area only] insurance" made within the province. 28 (otherwise known as Civil Remedies Act. 2001. When he went to collect the Appellant insurance from Citizen Insurance Company refused to pay based on his fail to disclose info required by the conditions in the policies. 2) Provinces Can Regulate Contracts: Provincial legislatures have the jurisdiction to regulate contracts of a particular business or trade as long as it is within the province (including the ability to limit and control the manner in which the property may be dealt with. ISSUE: Whether the Ontario Remedies for Organized Crime and Other Unlawful Activities Act. to capture resources tainted by crime and to help compensate private individuals and public institutions for the costs of past crime. They are: 1) There is a limitation on s. ISSUE: Is the Provincial Insurance Act valid within s. which authorizes the forfeiture of proceeds of unlawful activity. Based on fed statute.Section 91(2) should not be read to include the power to regulate by legislation the contracts of a particular business or trade. CRA targets property rights (2) Effects: The record shows that as of August 2007 approximately $3. 92(13) or does it violate s. Parsons purchased insurance in Ontario and then had a fire. 91 and 92 (or. S. 2001 or CRA). Under the legislation. The act regulated contracts. it is necessary to classify that essential character of the law by reference to the provincial and federal “classes of subjects” listed in ss. is ultra vires Ontario because it encroaches on the federal criminal law power. “encroaches directly on the federal government’s exclusive jurisdiction over criminal law and is ultra vires” STEP 1 (Pith and substance analysis)  Must determine the MATTER “in relation to” which the impugned law is enacted: “what is the essence of what the law does and how does it do it?”  “[T]wo aspects of the law must be examined: the purpose of the enacting body. dealing with trade and commerce. 2010 sitting. and the legal effect of the law” . and contracts falls under the head of property and civil rights. which was potentially acquired from crimes. and 2) Regulation of Trade affecting whole Dominion . Feds do not have the authority to regulate the contracts of a specific trade. Appealed again to Privy counsel and therefore. the appellant challenged the CRA’s constitutionality: that challenge eventually led to this appeal. as well. At Trial. the money was seized and preserved.O.These are referred to as the two branches of the trade and commerce power (discussed below) .  In essence. Forfeited property included approximately $500. On its face.  While a court is not bound by a purpose clause. ss. In response. or e-mail him @ andrew. He successfully completed all of the NCA requirements in the January.  Application: (1) Purpose: The purpose of the Act was to make crime unprofitable. Parsons was allowed to recover.7 million in special CRA accounts.For tutoring on this subject by the person who created these notes.captan@utoronto. the appeal was dismissed (legislation was intra vires). The Respondent went to Court. the. 91(2)? REASONING:  The Act was NOT ultravires the power of the enacting government. a Hamilton crack house. therefore. $900. c. Appeal allowed.000 in property involved in marijuana grow operations. he says. the CRA creates a property-based authority to seize money and other things shown on a balance of probabilities to be tainted by crime and thereafter to allocate the proceeds to compensating victims of and remedying the societal effects of criminality. 93.ca . and thus its authority does not conflict or compete with 92(13) provincial authority to regulate civil and property rights. 91(2): s. is limited to the following areas: 1) International Trade and Interprovincial Trade. .

and draws analogies as to which head the law fits under. here they look at how previous court decisions dealt with the federal criminal law power and the provincial property and civil rights power together] (e.  Supreme Court of Canada: (i) Ontario Farm Products Marketing Ref: Fed power could extend to some transactions that were completed in provinces (ii) R v Klassen: Issue was whether the Act could validly apply to a purely local work – a feed mill which processed locally produced wheat and sold it as feed to local farmers. which was to regulate the interprovincial and export trade in grain”. in my view. which specifically dealt w/ grain/oil flow across provincial lines. and a subsequent one called Federation des producteurs v Pellland (which also dealt with a federal provincial scheme) stand for the proposition that a federal statute can lawfully impose quotas on [4] TRADE AND COMMERCE: s 91(2). in Bédard v.Early cases suggested that unless a federal law attempted to control (not particular trades) but more general aspects of the economy (combinations. property and civil rights power of the provinces) appear to overlap.ca . Nevertheless. --. 1867 confers upon federal Parliament power to make laws in relation to the regulation of trade and commerce . then they could not be held valid under the trade and commerce power. Here. Dawson. or e-mail him @ andrew. the CRA relates to property but. the Court upheld the validity of a provincial law that authorized a judge to close a “disorderly hous[e]” for up to one year. The Court held that the law was directed to the enjoyment of property rights not criminal law)  Where there is overlap between two heads of power. [Note: Toronto and surrounding area only]  Clearly.N. incidental intrusions are allowed (2) The federal aspect: [Court argues that criminal law is not the dominant purpose. that’s ok (so long that the intraprovincial effects were incidental to the purpose of the Act). there is a strong argument that effect regulation of that market can only be national. e. (iii) Re Agricultural Products Marketing Act: A federal marketing statute was upheld. To characterize a provincial law as being in pith and substance related to property is therefore just a starting point: (1) The provincial aspect: CRA fits neatly into the provincial competence in relation to Property and Civil Rights in the Province. “The appellant and the interveners supporting him invoke Industrial Acceptance and Johnson as authorities for the proposition that “[f]orfeiture.R.Hogg suggests caution when interpreting these cases.S 91(2) of Constitution Act. is punishment” (A. at para. of course. The Attorneys General rely on Martineau v. The Act imposed on produces a quota system which was designed to ensure equal access to the interprovincial and export market. much of the Criminal Code is dedicated to offences involving property.. impugned Act was valid in relation to this intraprovincial transaction.s 91(2) and s 92(13) (i. have narrowed the two classes of subjects so as to eliminate the overlapping -Since the Parsons case. but it might not be a useful precedent for a # of reasons (including that the Court was impressed by the fact that the federal Act was the centerpiece of a cooperative scheme). Caloil case confirms Klassen on this point. Our jurisprudence offers many examples of the interplay between provincial legislative jurisdiction over property and civil rights and federal legislative jurisdiction over criminal law and procedure [Court looks at precedent. Principle: If impugned Act has incidental application to intraprovincal transactions. for the proposition that “civil mechanisms include the seizure as forfeit of goods and conveyances”.e. Although there may be incidental intrusion into another head over which the relevant government has no control. and several aspects of intraprovincial production/marketing of eggs.g. as it was “incidental to the principal purpose of the Act. it has been accepted that: (1) Intraprovincial trade and commerce is a matter w/in the provincial power under property and civil rights (a provincial matter) . neither case read in light of our subsequent jurisprudence supports such a broad proposition. E. for example. drawing on case law – analogies and distinguishing]. it makes sense that whenever a market for a product is national or international in size (like the market for grain or oil). this case. call Andrew @ (647) 878-6355. He successfully completed all of the NCA requirements in the January.captan@utoronto. which were governed by economic forces that ignored provincial boundaries. however. 2010 sitting.Judicial interpretation has narrowed the scope of that clause . labour).F. and (b) “general” trade and commerce (affecting the domino as a whole) Interprovincial or international trade and commerce: limb 1  Privy Council . in the context of property tainted by crime.” HELD: Appeal dismissed COMMENT: Note the significant overlap between this head of power and criminal law power (2) The federal trade and commerce power is confined to (a) interprovincial or international trade and commerce. but Courts. Logically speaking. Constitution Act 1867 Relationship to property and civil rights . prices. The decision on its face appears to expand the Fed power.g. 44) but. it is for the court to identify the DOMINANT FEATURE of the impugned statute. and was the federal element of interlocking federal and provincial statutes that regulated egg industry.g. by a process of mutual modification.For tutoring on this subject by the person who created these notes. M.

Dicta in Vapor (re: regulatory scheme) have proved to be important. which did not comply with the standards stipulated for that grade of apples. the conclusion was that Parliament has the constitutional power to regulate intraprovincial aspects of competition --. involved the use of a common name (light beer). and employed (using part of the Vapor test).captan@utoronto. and (b) “general” trade and commerce (affecting the domino as a whole) (2) Re the first branch.The following cases deal with regulating business practices: (iii) MacDonald v Vapor Canada: In this case. particularly when the legislation is regulating a material that has a national market (R v Klassen) . even if the product is consumed mainly in province). this was the only unequivocal example of a valid exercise of the general trade and commerce power. accept it as being a better authority than Canada Standard] (ii) Labatt Breweries: SCC struck down compositional standards for light beer which would become applicable only through the use of the voluntary phrase “light beer”. In this case. legislation in this area is not confined to international or interprovincial trade and commerce . Court struck down compositional standards for beer enacted under the Food and Drugs Act. The use of the mark was voluntary. Part I of Act provided that if the grade names were used in local trade. a civil remedy for any business practice which was contrary to honest industrial or commercial usage was said to not fall under the fed power – the creation or extension of civil causes of action of an essentially contractual or tortious character was a matter w/in property and civil rights. [Note: Toronto and surrounding area only] each province without regard to the destination of the product (ie. federal legislation may have incidental application to intraprovincal transactions and still be upheld under the trade and commerce power. The Act provided appropriate grade names for agricultural products. Dominion Stores was charged w/ selling apples (which were locally produced) under the federally established grade name “Canada Extra Fancy”. --. The case seemed to decide that the general trade and commerce power would authorize federal standards of production or manufacture for products traded locally. deals with legislation enacting federal policies of economic regulation.This limb. Summary of principles (1) The federal trade and commerce power has 2 limbs (Parsons): (a) interprovincial or international trade and commerce. A 5 part test was adopted. Court seems to have revered to the bad old days of the Privy Council’s “watertight compartments”] (v) Labatt Breweries v A-G: federal trade and commerce power was rejected as a support for federal legislation. having become the basis for upholding the federal Competition Act: (iv) General Motors v City National Leasing: The Competition Act was a valid exercise of the general trade and commerce power. since the law was upheld. federal standards as to the quality of the product so marked had to be complied with. This was supported by Kirkbi v Ritivik Holdings. unlike Canada Standard Trade Mark. provided that the federal standards were tired to the voluntary use of a distinctive mark But see Dominion Stores v The Queen (1979). at least where there is a cooperative federal-provincial scheme in place.The following cases deal with regulating compositional standards: (i) Canada Standard Trade Mark: Until 1989. but this is insufficient. but if the mark was used. (iv) Dominion Stores v The Queen: SCC struck down Part 1 of the federal Canada Agricultural Product Standards Act. 2010 sitting. which is virtually mandatory and would affect producers who did not want to be affected --. which seemed to have similar facts but a different decision resulted [My view: since this is a more recent case. The Privy Council upheld a federal statute which established a national mark called “Canada Standard”. These purchases were transactions that took place within a single province. Further. the allegations that gave rise to litigation concerned price discrimination in the financing of the purchase of vehicles by companies that lease fleets of automobiles and trucks. for example.There are also some relevant trade mark cases: (v) Canada Standard Trade Mark: OBITER from this case suggests that the fed power can be used to enact trade mark acts.ca . functional connection with the regulation of interprovincial and international trade. or e-mail him @ andrew. and in rejecting this intrusion into local trade. then the appropriate federal standards had to be complied with. Majority basically held that this case. The only federal aspect was that the law applied throughout Canada. He successfully completed all of the NCA requirements in the January. The use of the mark was not confined to international or interprovincial trade. The company was acquitted on the ground that Part I was unconstitutional in its attempt to regulate local trade [HOGG says this is wrongly decided – such a modest intrusion into local trade has a rational.For tutoring on this subject by the person who created these notes. call Andrew @ (647) 878-6355. The standards imposed on the beer industry were without regard for the product’s movements across provincial boundaries AND the case reaffirmed the rule that the trade and commerce power will not authorize the regulation of a single trade or industry General trade and commerce: limb 2 . Thus.

no precedential value. Parsons purchased insurance in Ontario and then had a fire. 91(2): s. Federation des producteurs v Pellland) (4) Re the second branch. the Appellant argued that it was not bound by the Provincial Insurance Act because it was ultra vires of the province's powers. General Motors v City National Leasing: FACTS: During the 1970s General Motors (GM) sold vehicles to both City National Leasing (CNL) and to CNL's competitors. such as the business of fire insurance in a single province.91(2) and 92(13): 1. ISSUE: Is the Provincial Insurance Act valid within s. including the terms and conditions of the contracts) HELD: Judgement for the Respondent. 2) Provinces Can Regulate Contracts: Provincial legislatures have the jurisdiction to regulate contracts of a particular business or trade as long as it is within the province (including the ability to limit and control the manner in which the property may be dealt with. 2010 sitting. to regulate intraprovincial aspects of competition (GM v National Leasing) (7) Parliament. it is possible (but not necessarily the case) that. under the general trade and commerce power. The Respondent. Is s 31. an insurance company had the power to omit any of the additional provisions provided it warned the policy purchaser of the changes. is limited to the following areas: 1) International Trade and Interprovincial Trade. In its defence GM argued that the provision in the Act that created the civil cause of action was outside the legislative competence of the federal government. if they are sufficiently connected to a valid act under which there is a regulatory scheme (GM v National Leasing) (6) Parliament has the power. 91(2). and thus its authority does not conflict or compete with 92(13) provincial authority to regulate civil and property rights. The Respondent went to Court. via the general trade and commerce power. Appeal allowed. it is likely that. cannot regulate a single trade. Under the legislation. even on a national basis (Labatt Breweries) ----Citizen Insurance Company v. Wharton – which the court stated was clearly overly expansive in the power granted to the federal government in relation to trade and commerce under 91(2) . 91(2). a federal statute can lawfully stipulate that the voluntary use of a distinctive mark gives rise to the requirement that the relevant material conform to set compositional standards (Canada Standard).captan@utoronto. in 1876. . although the involuntary/lack of choice of using a distinctive mark will not lawfully give rise to the requirement that compositional standards must be complied with (Labatt Breweries) (5) Civil remedies can be used as part of a scheme to regulate national trade practices.1 valid? REASONING: The General Trade and Commerce Power  The leading case on s 91(2) is Parsons  Parsons established 3 propositions re s 91(2): (i) it does not correspond to the literal meaning of the words "regulation of trade and commerce". the appellant focuses its attack on a particular section of the Act.ca . is authority for the proposition of the 2 limbs of s 91(2)]  In examining cases which have considered s. It was discovered that GM was giving CNL's competitor a better interest rate than CNL. (iii) it does not extend to regulating the contracts of a particular business or trade [Parsons. 91(2)? REASONING:  There are two important ratios to note about this case. and be upheld under the trade and commerce power. dealing with trade and commerce. He successfully completed all of the NCA requirements in the January. it is evident that courts have been sensitive to the need to reconcile the general trade and commerce power of the federal government with the provincial power over property and civil rights  Court points to 2 cases and states that neither correctly assesses the balance to be struck btw s. ISSUE: In the present appeal. [Note: Toronto and surrounding area only] (3) Re the first branch. the appeal was dismissed (legislation was intra vires). at least in the case where there is a federal-provincial cooperative scheme in place (Re Agricultural Products Marketing Act.These are referred to as the two branches of the trade and commerce power . Parsons FACTS: Ontario. At Trial. They are: 1) Limitation on s. and 2) Regulation of Trade affecting whole Dominion (“general branch”) . (it) would include general regulation of trade affecting the whole dominion". enacted legislation regulating fire insurance policies that specified the standard conditions which were "deemed to be part of every policy of fire insurance" made within the province. then. Feds do not have the authority to regulate the contracts of a specific trade. When he went to collect the Appellant insurance from Citizen Insurance Company refused to pay based on his fail to disclose info required by the conditions in the policies. Parsons was allowed to recover.For tutoring on this subject by the person who created these notes. 92(13) or does it violate s. call Andrew @ (647) 878-6355.Section 91(2) should not be read to include the power to regulate by legislation the contracts of a particular business or trade. a federal statute can lawfully impose quotas on each province and individual producers in that province even if the product is consumed mainly in province. which violated the federal Combines Investigation Act. in the name of trade and commerce. Appealed again to Privy counsel and therefore. in the name of trade and commerce. . (ii) it includes not only arrangements with regard to international and interprovincial trade but "it may be that . or e-mail him @ andrew.

or e-mail him @ andrew.  The following is a more detailed analysis. Such a justification will result from the impugned provision's relationship to valid legislation. It establishes an investigatory mechanism for revealing prohibited activities and provides an extensive range of criminal and administrative redress against companies engaging in behaviour that tends to reduce competition  But is the Regulatory scheme VALID under the general trade and commerce power IN LIGHT OF the criteria established in Canadian National Transportation? FOUR other criteria have to be examined: (a) The regulatory scheme operates under the oversight of an agency: Yes. federal encroachment in this matter isn’t unprecedented (2) The Presence and Validity of a Regulation Scheme  The second step in determining the validity of s. if the provision passes this integration test.1 would still pass the test.ca .  Act creates. the court must establish whether the act (or a severable part of it) is valid. This requires considering the seriousness of the encroachment on provincial powers. 2010 sitting. supra. one of "necessarily incidental" -. That is.g. Board of Commerce . and application. 31. Restrictive Trade Practices Commission etc to oversee its application  From this overview of the Combines Investigation Act I have no difficulty in concluding that the Act as a whole embodies a complex scheme of economic regulation. Concerned w/ trade in general. supra. then must determine the degree to which the provision could be said to intrude on provincial powers. it will be necessary. and Canadian National Transportation. though – the provision is a remedial one. call Andrew @ (647) 878-6355. e. in cases under the second branch of s. 31.1 of the Combines Investigation Act  Mere inclusion in a valid legislative scheme does not ipso facto confer constitutional validity upon a particular provision  The provision must be sufficiently related to that scheme for it to be constitutionally justified. then the Act is not valid. therefore. If the scheme is not valid. and in Canadian National Transportation. The purpose of the Act is to eliminate activities that reduce competition in the market-place. the appropriate test in this case is whether the section is “functionally related” to the general objective of the legislation  “I am of the opinion that the necessary link between s. The Act identifies and defines anticompetitive conduct. if the scheme of regulation is declared valid (and therefore the Act. and if so to what extent (if it does not intrude.1 of the Combines Investigation Act is fundamentally integrated into the purpose and underlying philosophy of the Combines Investigation Act. If the provision is not sufficiently integrated into the scheme of regulation.s. The degree of relationship that is required is a function of the extent of the provision's intrusion into provincial powers  Given the level of intrusion. then the only possible issue is the validity of the act. The regulatory mechanism is carefully controlled by the Director of Investigation and Research and to a lesser degree by the Restrictive Trade Practices Commission ---The next three criteria are indications that the scheme of regulation is national in scope and that local regulation would be inadequate --(b) The Act is concerned with trade in general: Yes. 31. in order to decide on the proper standard for such a relationship.captan@utoronto. Thus the next step in the process is to ascertain the existence of valid legislation) Second. where there is a challenge to the provision of an Act. 91(2). Section 31. the court must then determine whether the impugned provision is sufficiently integrated with the scheme that it can be upheld by virtue of that relationship. using the factors outlined in Vapor Canada. supra.  Fourth. the court must determine whether the impugned provision can be viewed as intruding on provincial powers. Even if a much stricter test of fit were applied -.For tutoring on this subject by the person who created these notes. (d) The failure to include one or more provinces or localities would jeopardize the successful operation of the Combines Investigation Act: Yes (3) The Validity of s. once the presence of a regulatory scheme has been shown to exist.1 and the Act exists. it is intra vires Parliament as an exercise of the general trade and commerce power.1 is an integral. and if so. [Note: Toronto and surrounding area only] 2. supra. to what extent  The section does encroach. The entire Act is geared to achieving this objective. or severable part of it is valid). well-conceived component of the economic regulation strategy found in the Combines Investigation Act. Director of Investigation and Research.for instance. b/c it creates a civil action which is generally a provincial matter under s 92(13)  It does not encroach to a fatal extent.which the court stated fails to breath life into the trade and commerce power under 91(2) and fails to recognize that provincial powers are a subtraction for the federal powers Steps To Resolve This Kind of Case  First.e. if the provision does intrude. 31.1 is to establish whether the Act contains a regulatory scheme  The presence of a well orchestrated economic regulation scheme is present on examination of the Act (throughout the Act. in assessing the validity of s. and that is the end of the inquiry  Third.. eliminating commercial practices which are contrary to healthy competition across the country) (c) The provinces would be constitutionally capable of enacting combines legislation: No. There is a close congruence . Section 31. to determine its constitutional validity. rather than with the regulation of a particular industry or commodity (i. 91(2) this will normally involve finding the presence of a regulatory scheme and then ascertaining whether that scheme meets the requirements articulated in Vapor Canada. 31. so that this intrusion can be weighed in light of the possible justification for the section. it cannot be sustained under the second branch of s. of the test: (1) Does Section 31.1 of the Combines Investigation Act is to determine whether the impugned provision can be seen as encroaching on provincial powers. He successfully completed all of the NCA requirements in the January.1 Encroach on Provincial Powers?  The first step.

1 does not share the characteristics of provisions that were not upheld as exercises of the general trade and commerce power: (a) regulating a single trade. supra). the use of aircraft for the carriage of mails especially to remote parts of the country. supra).This one isn’t that important . an identity which makes it distinct from provincial matters” (Anti-Inflation Ref. Crown Zellerbach) [5] PEACE. COMMENT: The Court outlined the analysis for determining the constitutionality of a provision under the "general" branch of the Trade and Commerce power (2) The “national concern” branch (a) Relevant cases (i) Local Prohibition case: The idea that some matter of legislation. [THIS IS THE ESTABLISHED DEFINITION OF THE “NATIONAL CONCERN BRANCH] (iii) Johannesson v West St Paul (SCC case): Aeronautics satisfied the national concern branch (e.G power is that it is to accommodate the matters which do not come within any of the enumerated provincial or federal heads of power . which was established by federal legislation. They both are valid federal enactments in accordance with Parliament’s power over trade and commerce affecting the entire nation.G. power has given rise to 3 branches of legislative power: (1) The “gap” branch . supra). in their local and provincial origin.captan@utoronto. 2010 sitting. the intimate tie between the purpose of the Act and a privately initiated and privately conducted enforcement mechanism is a strong indication that s. although it is located in Ottawa (v) R v Crown Zellerbach (SCC case): Marine pollution satisfied the national concern test (b) Definition of national concern . 31.1 is intra vires parliament by virtue of its relationship to the scheme of economic regulation found in the Combines Investigation Act. (e) regulating contracts of a particular business or trade (Parsons. 31. etc are concerns of the nation as a whole”) (iv) Munro v NCC (SCC case): The national capital region. power (ii) Canada Temperance case: a new test was formulated (and the requirement that the national concern amount to an emergency was repudiated): “if the legislation is such that it goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole. (b) regulating a series of individual trades by various regulations or trade codes applicable to each individual sector (Re Anti-Inflation Act.g.The power is residuary. (d) proscribing the ethical conduct of persons engaged in trade and unconnected to a general regulatory scheme governing trade relations (Vapor Canada. could acquire “national dimensions” or “national concern” and thereby come w/in the federal Parliament’s p. even though on a national basis (Labatt Breweries. supra). [Note: Toronto and surrounding area only] between the goal of enhancing healthy competition in the economy and s.R. b/c it is expressly confined to matters not coming w/in the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces. a topic must be “distinct”: it must have a degree of unity that makes it indivisible. Satisfying all of the concerns which I have discussed ensures that the constitutional balance will not be upset Other Points  It is also worth mentioning that in itself s. HELD: Section 31. although it may in another aspect touch on other matters over which province has authority”. 31. ORDER AND GOOD GOVERNMENT: Act 1867 s 91.  This conclusion rebuts the appellant's argument that s.ca .G.C.O. 373). the incorporation of companies. [1976] 2 S.For tutoring on this subject by the person who created these notes.E.The P.“Distinctness” is the key: In order to qualify as a matter of national concern.g. (c) controlling production in a local area (Canadian National Transportation.1 which creates a private remedy dependent for its effectiveness on individual initiative”  The very exercise of the remedy in s. or e-mail him @ andrew. 31.1 tilts the constitutional balance between the federal domain and the domain of the provinces in favour of Parliament. rapid growth of passenger and freight traffic by air. 31. then it will fall within this head of power.G.g.o.1 is enmeshed in the fabric in the Act. treaties .g. was valid under this power.When does subject matter become “the concern of the Dominion as a whole” to satisfy the national concern test? . Constitution . call Andrew @ (647) 878-6355.The proper interpretation of the P.1 by a company against a competitor whose behaviour has transgressed the code of conduct established by the Act may be said to reflect and promote the spirit of competition informing the Combines Investigation Act.O. He successfully completed all of the NCA requirements in the January. In my view.

that Parliament has jurisdiction to regulate dumping in waters lying outside the territorial limits of any province STEP 1: Pith and substance of the Act  The Act.The pogg power gives to the fed Parliament the PERMANENT jurisdiction over distinct subject matters which do not fall within any of the enumerated heads of s 92. in so far as that may be relevant to the question of legislative jurisdiction.g. The respondent dredged wood waste from the ocean floor immediately adjacent to the shoreline at the site of its log dump in Beaver Cove and deposited it in the deeper waters of the cove approximately 60 to 80 feet seaward of where the woodwaste had been dredged ISSUE: Is section 4(1) of the Ocean Dumping Control Act. become matters of national concern. so long as the legislation operates as a partial and temporary alteration of the distribution of power b/w Parliament and provincial legislatures (Anti Inflation Reference) R v Crown Zellerbach Canada (A case dealing with the national concern branch) FACTS: The federal Ocean Dumping Control Act prohibited “at sea dumping”.The War Measures Act was held constitutional in one other context other than war. the national capital region (Anti Inflation Reference) . That case indicates that all you need to show is that there is a rational basis for finding that an emergency exists – don’t need definitive conclusions . c. an issue for which provincial control might be more appropriate? (3) The emergency branch . power only available in cases arising out of extraordinary peril” .e. e. in the absence of national emergency. The national concern doctrine applies to both new matters which did not exist at Confederation and to matters which.about 5 cases were cited. call Andrew @ (647) 878-6355. Court asked whether it could be upheld under the federal peace. which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature. 2.Note that federal emergency power only supports temporary measures (Re Anti Inflation Act) Relationship between emergency branch and national concern branch . [Note: Toronto and surrounding area only] (a) An indicia of distinctness is the provincial inability test (Crown Zellerbach): It has been said that the most important element of national concern is a need for one national law which cannot realistically be satisfied by cooperative provincial action because the failure of one province to cooperate would carry with it adverse consequences for the residents of other provinces. in particular.captan@utoronto. ultra vires of the Parliament of Canada. is it ultra vires of the Parliament of Canada in its application to the dumping of waste in the waters of Beaver Cove. 55. e. 9 and 10 of the Act and Schedule III. and which cannot cause pollution in extraprovincial waters? REASONING:  Note: the respondent concedes. that the Johannesson case supported legislation re: aeronautics under this branch --.o. and then said that in applying it.o. bringing into force War Measures Act . does the Act treat the regulation of (X: i. and. in which the federal Anti-Inflation Act was upheld as an emergency measure.g. The national concern doctrine is separate and distinct from the national emergency doctrine of the peace. with reference to relevant points] Court drew several conclusions from the cases about the doctrine: 1.Emergency test was first applied in Toronto Electric Commissioners v Snider: “The p.g.g. 2010 sitting. or e-mail him @ andrew. viewed as a whole.Second. not determining element of it] (b) Further. S. the pogg power gives the fed Parliament TEMPORARY jurisdiction over all subject matters (including general ones like inflation) needed to deal with an emergency. the fed government responded by issuing a proclamation declaring that an “apprehended insurrection exists”. aeronautics.For tutoring on this subject by the person who created these notes.The most recent application of the emergency doctrine is to be found in the AntiInflation Reference case.g. order and good government power (using the national concern doctrine) Court cited the Canada Temperance Federation test. For a matter to qualify as a matter of national concern in either sense it must have a singleness. A subject matter of legislation which has this characteristic has the necessary national concern to justify invocation of the p. STEP 2: Which head of power does it fall under?  Court first rejected that the Act could be upheld under the fisheries power (because these arguments were made by a party)  Next.C. you must look to some of the important cases like Re Anti Inflation Act which followed up the Temperance case [He then summarized some of the important/relevant findings from these cases.  The Act is concerned with the dumping of substances which may be shown or presumed to have an adverse effect on the marine environment. have since. distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction . order and good government power. He successfully completed all of the NCA requirements in the January. what it’s regulating) as distinct from the regulation of a larger issue.g. power [This is an indicia. 1974-75-76.Fed legislation enacted during First World War that dealt with economic responses to the war was held constitutional under this power (Fort Frances) . an area within the province of British Columbia.  Its purpose is to require a permit so that the regulatory authority may determine before the proposed dumping has occurred whether it may be permitted upon certain terms and conditions.  The nature of the marine environment and its protection from adverse effect from dumping is a complex matter which must be left to expert judgment. as it must. although originally matters of a local or private nature in a province.ca . having regard to the factors or concerns specified in ss. namely during the “October Crisis” when a violent Quebec separatist group kidnapped a British diplomat. 3. may be properly characterized as directed to the control or regulation of marine pollution. and which by nature are of national concern.

as I conceive it. in assisting in the determination whether a matter has the requisite singleness or indivisibility from a functional as well as a conceptual point of view”  Court says that marine pollution. order and good government of Canada [DEFINITION OF EMERGENCY]  The authority of Parliament is limited to dealing with critical conditions and the necessity to which they give rise must be confined to legislation of a TEMPORARY CHARACTER [REQUIREMENT]  In order to determine whether the legislation in question was enacted to combat such an emergency. indivisible matter falling within the national concern doctrine of the peace. is a single. He successfully completed all of the NCA requirements in the January. in my opinion. otherwise it would be seen as invading provincial jurisdiction[  The word emergency need not be used in the Act for the Act to be upheld under the emergency test of the pogg power Richie J’s Judgment:  An “emergency” exists where there can be said to be an urgent and critical situation adversely affecting all Canadians and being of such proportions as to transcend the authority vested in the Legislatures of the Provinces and thus presenting an emergency which can only be effectively dealt with by Parliament in the exercise of the powers conferred upon it by s. 2010 sitting. the preamble recognized the fact that inflation at current levels was contrary to the interest of all Canadians] [RULE] HELD: The Act was not ultra vires the fed parliament . in so far as its impact on provincial jurisdiction is concerned. has its own characteristics and scientific considerations that distinguish it from fresh water pollution. hitherto rejected in the cases. Due to growing unease with the Act. the “provincial inability” test]: “In this sense. to control the growing inflation of the past several years.  The Ocean Dumping Control Act reflects a distinction between the pollution of salt water and the pollution of fresh water. distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern. including provincial marine waters. order and good government power. Further. In determining whether a matter has attained the required degree of singleness. its utility lies.For tutoring on this subject by the person who created these notes. order and good government of Canada REASONING: CJ’s Judgment  Court needs to find that there is a rational basis for the emergency legislation (not definitive proof that there was an emergency) [REQUIREMENT]  Fed legislation can be upheld under the emergency test of the popp power even if it was enacted after the emergency had ended (because the effects of the emergency may still be operative) [RULE]  Fed legislation can be upheld under the emergency test of the popp power even if it intrudes on provincial territory [RULE]  An “emergency” isn’t limited to wars [RULE]  It isn’t for the Court to assess whether the Act will in fact have the effect to mitigate against the emergency  The Anti-Inflation Act is valid legislation for the peace. the distinction between salt water and fresh water as limiting the application of the Ocean Dumping Control Act meets the consideration emphasized by a majority of this Court in the Anti-Inflation Act reference--that in order for a matter to qualify as one of national concern falling within the federal peace. invade provincial legislative jurisdiction [So. order and good government of Canada and does not. because of the differences in the composition and action of marine waters and fresh waters. The "provincial inability" test must not.ca . the "provincial inability" test is one of the indicia for determining whether a matter has that character of singleness or indivisibility required to bring it within the national concern doctrine. The question. [Note: Toronto and surrounding area only] that is reconcilable with the fundamental distribution of legislative power under the Constitution. order and good government power. go so far as to provide a rationale for the general notion. the legislation must be temporary in nature. because of its predominantly extraprovincial as well as international character and implications. it is relevant to consider what would be the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter [I. is clearly a matter of concern to Canada as a whole. Moreover. look at the preamble etc) [Here. indivisible matter. or e-mail him @ andrew. however. In the context of the national concern doctrine of the peace. order and good government power it must have ascertainable and reasonable limits.e.captan@utoronto. it is necessary to examine the legislation itself (i. in the circumstances under which it was enacted [sic] and having regard to its temporary character. 4.  The question is whether the control of pollution by the dumping of substances in marine waters.e. on recommendation of the Bank of Canada. call Andrew @ (647) 878-6355. HELD: s 4(1) is constitutionally valid as enacted in relation to a matter falling w/iin the national concern branch of the peace order and good government power Anti Inflation Reference (Deals with the emergency branch) FACTS: The Anti-Inflation Act was passed in 1975. the federal government put two questions to the Supreme Court on the validity of the Act. that there must be a plenary jurisdiction in one order of government or the other to deal with any legislative problem. ISSUE: Whether the social and economic circumstances upon which Parliament can be said to have proceeded in passing the Act were such as to provide support for the Act in the power of Parliament to legislate for the peace. is whether that distinction is sufficient to make the control of marine pollution by the dumping of substances a single.  Marine pollution by the dumping of substances is clearly treated by the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter as a distinct and separate form of water pollution having its own characteristics and scientific considerations. It is because of the interrelatedness of the intra-provincial and extra-provincial aspects of the matter that it requires a single or uniform legislative treatment. 91 of the British North America Act "to make laws for the peace. marine pollution.

It is well established that food and drug legislation making illegal the manufacture or sale of dangerous products. majority said the power to prohibit the use of tobacco on account of its harmful effects encompassed the power to take the lesser step of prohibiting advertising [So. He successfully completed all of the NCA requirements in the January. which confers on provincial legislatures the power to make laws in relation to “the admin of justice. there is a criminal law aspect of health.g. the treatment could include compulsory detention for up to 6 months. authorizing federal legislation under s 91(27) to punish conduct that is dangerous to health Environment protection . call Andrew @ (647) 878-6355. 1867 . is a federal responsibility.The provincial role in criminal justice derives from s 92(14).g. but it had not done that here.captan@utoronto.Criminal law. PATA case).. e. The argument that this was really a criminal law was based on the deprivations of liberty that were authorized by the Act [So. adulterated products or misbranded products is within the criminal law power (R v Wetmore) .The protection of the environment (which extends beyond the protection of human health) is a public purpose that would support a federal law under the criminal law power (R v Hydro-Quebec) Competition law .The P. due to changes in competition law.Labatt Breweries v A-G Can: If the purpose of the federal food and drug standards is related to health and/or the minimization of deception.A. and the relevant power for the most part is trade and commerce .See.g.g. order. General Motors v City National Leasing Sunday observance law (a) Federal power . case established that the criminal law power was capable of expansion into the world of commerce. health.Note: there is no harm requirement for a law to be valid (Malmo-Levine). the criminal law power can serve economic ends (e. and which have secular purposes. 2010 sitting. assessment and treatment of drug addicts. morality etc (see Margarine Reference) . maintenance and organization of provincial courts. [Note: Toronto and surrounding area only] . where there an Act allows for deprivations of liberty. although for the most part the Code is enforced by provinces .Three ingredients to the criminal law power: (1) A prohibition.In Schneider v The Queen.As seen above. which provide for the compulsory apprehension. after it upheld federal legislation which dealt with restraint of trade issues . the criminal aspect of the Act. are valid under the property and civil rights provincial power (see. The ban on advertising? Parliament clearly can prohibit the sale. health risks of tobacco did not require the outright banning of cigarettes.BUT now.T. and including procedure in civil matters in those courts” Definition of criminal law . e. security. the SCC upheld the BC Heroin Treatment Act. a criminal purpose may be pursued by indirect means (RJR-MacDonald v Canada.Laws which provide “pause days” or restrict business hours. possession and manufacture of dangerous products (Irwin Toy). For the warning label requirement. and could have been pursued by limiting advertising) Food and drugs (a) Food and drug standards . or e-mail him @ andrew. have diminished.A. (2) Coupled with a penalty (3) With a criminal public purpose: a. cite this case] (c) Tobacco Gun control .In Big M Drug Mart.g. the law was valid because the valid criminal purpose of protecting health. public peace. e.For tutoring on this subject by the person who created these notes. including the constitution.RJR MacDonald v Canada: federal Tobacco Act did two things: require placement of health warning labels on cigarette packs and prohibited the advertising of cigarettes and other tobacco products.ca . E. then the law can be upheld under the criminal power (b) Illicit drugs . it was confirmed that the criminal law power can be used to legislate in relation to the purpose of preserving the sanctity of the Christian Sabbath (and observance of days of religious significance) – comes within safeguarding morality (a purpose identified in Margarine Reference) (b) Provincial power . Lieberman) [6] CRIMINAL LAW: s 91 (27) Constitution Act. the criminal law power can be used indirectly to achieve a criminal law purpose] Health . under s 91(27). Yet.

a civil remedy in federal competition law etc (b) Criminal law power to create civil remedies . 1867 in order to determine whether the law comes within the jurisdiction of the enacting government. by enacting the Firearms Act which expanded existing rules by requiring ALL guns to be registered and ALL gun owners to be licensed. the scheme was sufficiently prohibitory” (see also Re Firearms Act. He successfully completed all of the NCA requirements in the January. the Act is aimed at a number of evils – e.See s 92(15) . looking to the mischief approach. . the fed Parliament amended Code provisions. c.And see R v Hydro-Quebec: HQ was prosecuted for violating an interim order that restricted the emission of a substance to one gram per day. “Because the admin procedure for assessing the toxicity of the substances culminated in a prohibition enforced by a penal sanction. The law was valid despite the fact that it delegated regulatory power to the provincial LG in Council . property.C. S. the law will be invalid as coming within the provincial head of power property and civil rights (see MacDonald v Vapor Canada) . This means that if the pith and substance of a federal law is the creation of a new civil cause of action. or e-mail him @ andrew. the SCC has used the “functional connection’ test to uphold a civil remedy in federal corporation law. [Note: Toronto and surrounding area only] .. C-46.C. illegal trade in guns. STEP 1: Determine what the gun control law is really about (PITH AND SUBSTANCE ANALYSIS): . Majority upheld the Act as a criminal law. and under its general power to legislate for the “Peace. Westendorp) Re Firearms Act FACTS: In 1995. Court upheld censorship law as being the regulation of an industry within the province (property and civil rights) .Eg.g. The second step is to classify that essential character by reference to the heads of power under the Constitution Act. extrinsic evidence indicates that the purpose is to promote public safety.g. Where the provincial offence cannot safely be anchored in property/civil rights or some other head of provincial power.captan@utoronto. call Andrew @ (647) 878-6355. REASONING: Introduction  In order to answer this question. says the law falls under its power over property and civil rights.For tutoring on this subject by the person who created these notes. R.Crim power generally won’t sustain a regulatory regime/scheme which relies upon more sophisticated tools than a simple prohibition and penalty . accidental deaths etc (b) Legal effect: .Since Papp v Papp. Parliament amended the Criminal Code. on the other hand. businesses activity). the provincial law is likely to be valid.The SCC upheld the validity of this legislation under the criminal law power in Re Firearms Act. then the law is valid. commonly referred to as the gun control law. Also.Provincial power to create offences under that section is not as broad as the federal power to create offences under s 91(27) . parks. and the legal effect of the law (a) Purpose: . to order the accused to pay the victim compensation for any loss or damage Criminal law and regulatory authority . c.Where the pith and substance of a federal law is not the creation of a civil remedy. but made an exception for organizations licensed by the Lieutenant Governor in Council.HERE. 2010 sitting. 39. order and good government power. e. streets. The first step is to determine the “pith and substance” or essential character of the law. Prevention of crime Criminal law and civil remedy (a) Federal power generally to create civil remedies . but it may also be ascertained by reference to extrinsic material: Morgentaler .In 1995.In R v Zelensky.A law’s purpose is often stated. Nova Scotia Board of Censors v McNeil: SCC held that the censorship of films was not criminal.g. we must engage in the division of powers analysis  There are two stages to this analysis. 91(27).To determine the pith and substance. Alberta. then it will be invalid (see. which affirms this reasoning) Provincial power to enact penal laws . there is no reason to doubt the validity of a civil remedy provided for enforcement of the law – the remedy is valid as incidental to the main purpose of the law (see Papp v Papp) . the SCC upheld a provision of the Criminal Code that authorized a criminal court.ca . Order and good Government” of Canada. 92(13). upon convicting an accused of an indictable offence. but is some other matter within federal power.S. ISSUE: The issue before us is whether the licensing and registration provisions of the Firearms Act constitute a valid federal enactment pursuant to Parliament’s jurisdiction over criminal law or its peace.Purpose may also be ascertained by considering the “mischief” of the legislation -the problem which Parliament sought to remedy: Morgentaler . If it does. against persons who engage in insider trading.Where the penalties are imposed in respect of matters over which the provinces ordinarily have legislative jurisdiction (e. 1995. two aspects of the law must be examined: the purpose of the enacting body.But see R v Furtney: SCC held that a Code provision respecting lotteries. The federal government asserts that the gun control law falls under its criminal law power. which prohibited lotteries. 1985. s. to require the holders of all firearms to obtain licences and register their guns.The federal Parliament has no independent power to create civil remedies akin to its power over criminal law. another is the link between guns and violent crime.. by enacting the Firearms Act. s.

Section 112 of the Firearms Act prohibits the possession of a firearm without a registration certificate. it appears that the law possesses all the 3 criteria for a valid criminal law. it is sometimes said to be “colourable”. pursuant to the provinces’ s.Determining the legal effects of a law involves considering how the law will operate and how it will affect Canadians . They are not confined to ensuring compliance with the scheme.NOTE: the presumption of constitutionality means that Alberta. McNeil  Criminal law power: . . There is no attempt to protect or regulate industries or businesses associated with guns (c) Conclusion: .In this case. This argument overlooks the different purposes behind the federal restrictions on firearms and the provincial regulation of other forms of property.The inquiry is directed to how the law sets out to achieve its purpose in order to better understand its total meaning .Having assessed the pith and substance or matter of the law. provincial legislatures regulate the possession and use of automobiles not as dangerous products but rather as items of property and as an exercise of civil rights.We therefore conclude that. order and good government power. or under provincial jurisdiction over property and civil rights [Say what heads of power are in issue] . . the question is whether the law falls under federal jurisdiction over criminal law or its peace. a law may say that it intends to do one thing and actually do something else. as the party challenging the legislation.Thus. 91 of the Code. each level of government can expect to have its jurisdiction affected by the other to a certain degree. like how it constitutes a broad area of federal jurisdiction] . . this argument fails to advance Alberta’s case.Then Court looks at whether 3 criteria are satisfied: (i) The first step is to consider whether the law has a valid criminal law purpose (noting Margarine Reference).We must examine the heads of power under ss. or e-mail him @ andrew. (ii) + (iii): Further. 139 of the Firearms Act) prohibits the possession of a firearm without a licence and a registration certificate. 2010 sitting. Yet their primary uses are fundamentally different. He successfully completed all of the NCA requirements in the January. . supra. . that purpose must be connected to a prohibition backed by a penalty. some general observations on the criminal law power may be apposite [Court goes on to note some general features of it.In other words. viewed from its purpose and effects. both may cause death and injury. but stand on their own. Safety courses ensure that gun owners are qualified. and more specifically. Criminal record checks and background investigations are designed to keep guns out of the hands of those incapable of using them safely.HERE. Further. the effects of the scheme also support the conclusion that the conclusion that the 1995 gun control law is in pith and substance a public safety measure. 115 of the Firearms Act and s. Despite its initial appeal. . legislation may be classified as criminal law if it possesses three prerequisites: a valid criminal law purpose backed by a prohibition and a penalty: RJRMacDonald. Section 91 of the Criminal Code (as amended by s. Both firearms and automobiles can be used for socially approved purposes. is required to show that the Act does not fall within the jurisdiction of Parliament: see Nova Scotia Board of Censors v. The 1995 gun control law satisfies these requirements. Hydro-Québec . While cars are also dangerous. as was the case in Boggs v. The Queen. 92(13) jurisdiction The argument that the federal gun control scheme is no different from the provincial regulation of motor vehicles ignores the fact that there are significant distinctions between the roles of guns and cars in Canadian society.For tutoring on this subject by the person who created these notes. Public safety clearly comes within criminal law purpose. courts look at whether laws of this type have traditionally been held to be criminal law: see Morgentaler]. call Andrew @ (647) 878-6355. the relevant provisions demonstrate that the Act does not give the chief firearms officer or the Registrar undue discretion Furthermore.As a general rule. Guns are restricted because they are dangerous. independently serving the purpose of public safety. [Note: Toronto and surrounding area only] . These prohibitions are backed by penalties: see s.The criteria for acquiring a licence are concerned with safety rather than the regulation of property. In a federal system. The fact that the Act is complex does not necessarily detract from its criminal nature. Cars are used mainly as means of transportation. 91 and 92 of the Constitution Act. 1867 and determine what the matter is “in relation to” . Likewise. gun control is a VALID criminal law purpose [In determining whether the purpose of a law constitutes a valid criminal law purpose. the second step is to determine whether that matter comes within the jurisdiction of the enacting legislature.Before determining whether the three criminal law criteria are met by this legislation. Where the effects of the law diverge substantially from the stated aim.captan@utoronto. the Firearms Act is in “pith and substance” directed to public safety  STEP 2: Determine which HEAD/HEADS OF POWER it most naturally falls within (in order to determine whether the law comes within the jurisdiction of the enacting government) .The determination of which head of power a particular law falls under is not an exact science. Nor are the prohibitions and penalties directed to the object of revenue generation (ii) Property and civil rights or criminal law? Alberta’s second major objection to classifying the 1995 gun control scheme as criminal law is that it is indistinguishable from existing provincial property regulation schemes such as automobile and land title registries. the law’s prohibitions and penalties are not regulatory in nature. But there are some objections raised by the provinces that must be considered: (i) Regulation or criminal prohibition? The first objection is that the Firearms Act is essentially regulatory rather than criminal legislation because of the complexity of the law and the discretion it grants to the chief firearms officer.ca .

In our view. The Act is a valid exercise of Parliament’s jurisdiction over criminal law pursuant to s. In order to address this issue. Assuming (without deciding) that the provincial legislatures would have the jurisdiction to enact a law in relation to the property aspects of ordinary firearms.ca . the most important jurisdictional effect of this law is its elimination of the ability of the provinces to not have any regulations on the ownership of ordinary firearms. The heads of power in ss. this does not prevent Parliament from addressing the safety aspects of ordinary firearms.). Exercises of the criminal law power often affect property and civil rights to some degree: Attorney-General for British Columbia v. Effects . Put simply.C.g. Note. and it must be determined what the matter is “in relation to” . 368 (P.To do this. or e-mail him @ andrew. the mischief that the law is trying to rid and. The second step is to classify that essential character by reference to the heads of power under the Constitution Act. . Guns. e. we must engage in the division of powers analysis.g. the first being to determine the “pith and substance” of the law.Thus. He successfully completed all of the NCA requirements in the January. as discussed above. The main issue here is _____________. Alberta and the provinces have not established that the effects of the law on provincial matters are more than incidental. This law does not allow the federal government to significantly expand its jurisdictional powers to the detriment of the provinces HELD: The licensing and registration provisions in the Firearms Act do not constitute an infringement of the jurisdiction of the Legislature of Alberta with respect to the regulation of property and civil rights pursuant to s. 91 and 92 of the Constitution Act. 92(13) of the Constitution Act. the purpose and effect of the impugned Act was to take profit out of crime] Conclusion . call Andrew @ (647) 878-6355. it appears that the Act’s overall goal is to _________. pose a pressing safety risk in many if not all of their functions Parliament did not enact the Firearms Act to regulate guns as items of property (iii) Undue intrusion into provincial powers? Alberta and the provincial interveners submit that this law inappropriately trenches on provincial powers and that upholding it as criminal law will upset the balance of federalism. two aspects of the law must be examined: the purpose of the enacting body. first must identify its main purpose . Second. the mere fact that guns are property does not suffice to show that a gun control law is in pith and substance a provincial matter. incidental effects in the provincial sphere are constitutionally irrelevant.[Application: try and say that the effects coincide with the purpose. 1867.C.In order to determine the validity of legislation X. the federal government has deprived the provinces of that choice. the issue is whether the law is mainly in relation to criminal law. that the presumption of constitutionality means that [the party challenging the Act] is required to demonstrate that the Act does not fall within the jurisdiction of [the enacting body] (NS Board of Censors v. 91(27). Attorney-General for Canada.The second step is to determine whether that matter comes within the jurisdiction of the enacting legislature. 1867 in order to determine whether the law comes within the jurisdiction of the enacting government. [Note: Toronto and surrounding area only] Danger to the public is ordinarily unintended and incidental to that use. [7] DISTRIBUTION OF POWERS ANSWER STRUCTURE STEP 2: Assignment to Heads of Power .The [Act] is in “pith and substance” directed to _______. by contrast. we may exam: the preamble. There are two stages to this analysis. Gun control has been the subject of federal law since Confederation. and the enacting body’s attempt doesn’t appear to be a colourable one – e. this law does not precipitate the federal government’s entry into a new field. If it is. not necessarily the stated purpose (Canadian Western Bank) .Of course. it is sometimes said to be “colourable” (Ibid) . and the legal effect of the law Purpose . reference to extrinsic material (Morgentaler). 1867 must be analysed. the Act does not significantly hinder the ability of the provinces to regulate the property and civil rights aspects of guns Third. The double aspect doctrine permits both levels of government to legislate in one jurisdictional field for two different purposes Fourth.Where the effects of the law diverge substantially from the stated aim. McNeil) STEP 1: Pith and Substance Analysis . 2010 sitting. here. [1937] A. however. optimally. By taking over the field.captan@utoronto. First.[Application] . how it will affect indiivduals’ rights and liabilities (Morgantaler) . in order to determine how the law will operate and how it will affect Canadians. we must look to true purpose.For tutoring on this subject by the person who created these notes. The provinces argue that it is in their power to choose whether or not to have such a law. in Chatterjee v Ontario (A-G).To determine the pith and substance.We must also look at its effects (legal and practical).

g. [Note: Toronto and surrounding area only] .e. e. Although there may be incidental intrusion into another head over which the relevant government has no control. the question is whether the law falls under ______ or the ______ heads of legislative power. However. define it. or e-mail him @ andrew. (ii) Incidental intrusion’s are ok] Conclusion . . incidental effects are permitted) (Papp v Papp).. Use the headings below to guide the analysis] [REMEMBER: (i) Where there is overlap between two heads of power.captan@utoronto. He successfully completed all of the NCA requirements in the January. we must be able to characterize the law as falling in one of the heads in s 91 or 92. Chatterjee). Then.ca . e. then disregard and then show why those heads don’t work by distinguishing the cases. start off with the heads that it APPEARS might support it. In a federal system. call Andrew @ (647) 878-6355. in light of the “exhaustive principle”. One way to do it is first decide. Finish up by showing how it falls under the head in your head. it is for the court to identify the DOMINANT FEATURE of the impugned statute. 2010 sitting.[This step often involves little more than a review of the relevant decisions and a recitation of the principles emerging from them.In this case.g.The determination of which head of power a particular law falls under is “not an exact science”. what are its elements? What do the cases say have to be established in order for a statute to be upheld under that power? Cite the most important cases here. in your head. incidental intrusions are allowed (see. which head it you will conclude the legislation falls under.The law is (intra/ultra) vires (Parliament/the provincial legislature) BONUS MARKS: Ancillary purpose (and the rational connection/necessary test) (if relevant) The double aspect doctrine Criteria of choice Exhaustive principle (law must be assignable to one of the heads of power) Singling out doctrine . .For tutoring on this subject by the person who created these notes. if its the criminal law power. each level of government can expect to have its jurisdiction affected by the other to a certain degree (i.

held that statute was invalid. includes as ss 16-23.That Act provided that “the English language only” shall be used in the records and journals of the Legislatures.  Incorporation by reference . a variety of language provisions .A law prescribing that a particular language or languages must/may be used in certain situations will be classified not as a law in relation to language. it also permits either English or French to be used in debates in the Houses of the federal Parliament and Quebec Legislature. 2010 sitting. Enactment of the law in English and French was required  Manitoba’s Official Language Act . 1982. so as to incorporate it. and is not an independent matter of legislation . the Quebec Legislature. it was decided that unofficial English translations did not meet the s 133 requirement.Only explicit guarantee of language rights in the Constitution Act.Two issues: distribution of powers re: language and constitutional protection of language Distribution of powers . the federal Parliament.S 133 only applies to legislative bodies and courts of the federal government and of Quebec. [Note: Toronto and surrounding area only] . and in pleading and process in Manitoba courts. the requirement will apply to the incorporated document as well. the Manitoba Legislature and the New Brunswick Legislature are each subject to a constitutional requirement that their statutes must be “printed and published” in both English and French  Quebec’s Charter of the French Language . but as a law in relation to the institutions or activities that the provision covers Language of statutes  Constitutional requirements . if there is a constitutional requirement that the incorporating statute be in both languages.Ss 17-19 apply to New Brunswick.General rule is that where a statute makes reference to another document. call Andrew @ (647) 878-6355. then. an attempt to repeal most of s 23 of Manitoba Act.In A-G of Quebec v Blakie.The Charter of Rights. or e-mail him @ andrew. In Re Manitoba Language Rights case. 1867 is contained in s 133 .captan@utoronto. In effect. . 1870 (use of English and French in Legislature and courts of Manitoba on similar terms to s 133) .Not a head of power.But see s 23 of the Manitoba Act. so that NB is now in a similar position to Quebec and Manitoba .ca . He successfully completed all of the NCA requirements in the January.Thus. part I of the Constitution Act. and requires that statutes of the federal Parliament and Quebec Legislature to be printed in both languages. it requires English and French to be used in the records and journals to those houses [Note: doesn’t apply to Legislatures and courts of any province other than Quebec]. Charter of Rights and Freedoms [1] LANGUAGE .For tutoring on this subject by the person who created these notes.

2010 sitting. or e-mail him @ andrew. and non-status Indians not protected by that act – although both are “Indians” for the purpose of this section.None of the language rights in the Constitution of Canada protects the use of the English or French language in commercial/private settings. apply to delegated legislation as well as to statutes.Confers on provincial legislatures the power to makes laws in relation to education. .  Charter of Rights .BUT there are 5 exceptions to the general rule: (1) “Singling out” (2) Indianness (3) Paramountcy (4) Natural Resource Agreements (5) Section 35 Section 88 of the Indian Act .See also s 23 of Manitoba Act re: Manitoba and s 19(2) of Charter re: New Brunswick – same guarantee  Language of process .s 16 doesn’t deal with communications b/w government and public. Constitution Act 1867 . 1867 confers upon the federal Parliament the power to make laws in relation to “Indians. He successfully completed all of the NCA requirements in the January.French or English may be used by any person in any pleading or process in or issuing from any Court of Canada. But statutory language requirements may offend the guarantee of freedom of expression in s 2(b) of the Charter of Rights Language of education  S 93. The right is not an absolute one (can be invoked “only where numbers warrant”) [2] ABORIGINAL AND TREATY RIGHTS Federal legislative power  s 91(24): . so long as the law is in relation to a matter coming within a provincial head of power . and lands reserved for the Indians” .s 91(24) of Constitution Act. by reason of its use of the word “Indian” Provincial legislative power .The section makes English and French the official languages of Canada and NB .But there are exceptions  Delegated legislation .The general rule is that provincial laws apply to Indians and lands reserved for the Indians. But if a particular language of instruction was a right or privilege of separate schools in a particular province at the time of confederation.There is a qualification to s 93 though.S 133 requirements.Contains 2 heads: “Indians” and “lands reserved for Indians” (a) Indians: Includes status Indians (protected by the Indian Act). and the ancillary power over language of instruction in the schools.For tutoring on this subject by the person who created these notes.There are exceptions to this too.Section 88 makes clear that provincial laws of general application apply to “Indians” . and includes the huge area of land set aside by the Royal Proclamation of 1763 as “reserved” for the Indians. as a general rule.Can be in either English or French Language of government  S 16 of Charter: .The Charter contains an equality guarantee. Language of courts  Constitutional requirements . then the province would be disabled from compelling such schools to instruct in a different language  S 23 of Charter .Imposes an obligation on government to provide bilingual services to the public Language of commerce . The Indian Act likely does not violate the Charter.S 133 (Constitution Act 1867) and s 23 (Manitoba Act) do not go beyond legislative bodies and courts. but this section does . (b) Lands reserved for Indians: Includes land set aside as Indian reserves.captan@utoronto.Section 23 confers upon citizens of Canada who are members of the English speaking minority in Quebec or the French speaking minority in the other provinces “the right to have their children receive primary and secondary school instruction in the minority language in that province”. This right is possessed by parents who fit into 1 of 3 categories: (1) The mother tongue of the parent: (2) The language of primary school instruction in Canada of the parent (3) The language of instruction in Canada of one child of the parent . But s 16 and s 20 of Charter do .ca . call Andrew @ (647) 878-6355. [Note: Toronto and surrounding area only] .Also confers English or French equality of statues as to their use in all institutions of Parliament and of the government of Canada  S 20 of Charter: . and in or from all or any Courts of Quebec: s 133 .

or incorporation by reference.e before the arrival of Europeans in North America (iii) The practice could evolve over the years as the result of contact. but it can regulate them.Aboriginal title is sui generis. must meet the Van der Peet test) . Sparrow also recognized that in all dealings with aboriginal peoples.An Indian treaty is sui generis. of provincial laws. if not surrendered or lawfully extinguished. the fact that aboriginal title can only be held communally. making the provincial laws applicable as part of federal law . Constitution Act 1982  Definition . common law recognizes that aboriginal title. are now constitutionally guaranteed through s 35 of the Constitution Act 1982 (this was the 1st s 35 case)  Definition of aboriginal rights .The aboriginal right of self-government must exist by virtue of the fact that aboriginal people were living in self-governing communities before the arrival of Europeans. which permits aboriginal owners to use the land for a variety of purposes .Aboriginal rights that have not been extinguished are recognized by the common law and are enforceable by the courts. the Government has the responsibility to act in a fiduciary capacity. and recognized the aboriginal right of a member of the Musqueam Indian Band to fish for salmon in the Fraser River.The Van der Peet definition of aboriginal rights is based on the existence of an aboriginal practice before “contact”. will not be inferred from unclear language. but it does extend to Indians on reserve .Sparrow follows Guerin. but a practice that has evolved into modern forms must trace its origins back to the pre-contact period . an activity must be an element of a practice. Hogg says  Aboriginal title . call Andrew @ (647) 878-6355.Section 88 operates as a federal adoption. The use and occupation of land by aboriginal people before the assumption of soverightny created an aboriginal title to land.Extinguishment. so long as the test of justification is passed Treaty rights . and that aboriginal title is constitutionally protected)  Extinguishment of aboriginal rights . self-governing entities in possession of most of the lands now making up Canada . there are a number of differences between aboriginal and non-aboriginal title (including the source of aboriginal title.. and has a number of unique characteristics . [Note: Toronto and surrounding area only] . . or e-mail him @ andrew. .For tutoring on this subject by the person who created these notes. the aboriginal right of self-government extends only to activities that took place before European contact. In R v Powley. the fact that aboriginal title is inalienable. whether by voluntary surrender or constitutional amendment.s 88 applies to provincial laws which affect Indianness by impairing the status or capacity of Indians (Dick v The Queen) .Because of s 35.Aboriginal TITLE is the right to exclusive occupation of land.Protected by s 35. the practice must be of central significance to the aboriginal society] (ii) The practice must have developed before “contact”. Court held that. including the fiduciary duty.The SCC in Calder and Guerin recognize that aboriginal title survived European settlement and the assumption of sovereignty by the British Crown.captan@utoronto. .Aboriginal rights (including aboriginal title) can be extinguished in 2 ways: (1) by surrender and (2) by constitutional amendment (note that it is now clear that it would be a breach of Crown’s fiduciary duty to the aboriginal people to proceed with a constitutional amendment affecting aboriginal rights without at least the active participation of the affected aboriginal people) .ca .According to Pamajewon case. This time frame doesn’t work for Metis rights.e. Only a “clear and plain” intention to extinguish is accepted by courts (Sparrow) . sufficiently central) to the distinctive culture of the aboriginal group asserting the right [In order for the practice to be “integral”.So.The leading case on aboriginal title is Delgamuukw v BC (sets out many rules re: aboriginal title) (see the summary in the book) .That test is overly strict. custom or tradition integral (i.The test and definition developed in R v Van der Peet: (i) In order to be an aboriginal right. 1982 . the uses to which aboriginal title may be put.e. and then only to those activities that were an integral part of the aboriginal society (i.Aboriginal title is also protected by s 35 of the Constitution Act.Note paramountcy and treaty exceptions Nature of aboriginal rights  Recognition of aboriginal rights .The section makes no reference to lands reserved for the Indians. Guerin v The Queen is the leading case on this matter. because the Metis people didn’t exist prior to contact. for Metis claimants of aboriginal rights.Two leading cases on treaty definitions are Simon v The Queen and R v Sioui . survived as a burden on the Crown’s title (which the Crown mysteriously acquired to all land in Canada) . i. meaning before the arrival of Europeans. He successfully completed all of the NCA requirements in the January.Aboriginal RIGHTS are rights held by aboriginal peoples by virtue of the fact that aboriginal peoples were once independent. and also decides that aboriginal rights. legislation cannot extinguish aboriginal rights. 2010 sitting. the focus on European contact had to be moved forward to the time of effective European control  Aboriginal self-government .

lawyers and judges in the public life of the country has greatly increased.S 25 is part of Charter.But judicial review on Charter grounds rarely defeats a desired legislative objective. and s 35 has the effect of nullifying legislation that purports to abridge the guaranteed rights .Must be interpreted liberally. The section essentially gives constitutional recognition to aboriginal and treaty rights. then the review is over. whereby aboriginal peoples’ representatives were not entitled to participate in the decisive phases of the amending process (unlike now with s 35) .While an aboriginal right could be extinguished by federal statute before 1982. call Andrew @ (647) 878-6355.The major effect of the Charter has been the expansion of judicial review. 1982 has taken steps to eliminate some of the infirmities related to aboriginal and treaty rights. the role of law. 25 and 35.The Constitution Act of 1982 has taken steps to eliminate these 4 infirmities . 2010 sitting. the mechanisms of ss 1 and 33 typically leave room for the law to be replaced with another version that still carries out the legislative objective. A right that was validly extinguished before 1982 was not protected by s 35 . [Note: Toronto and surrounding area only] . and the law must be upheld).But such rights are NOT absolute Section 25 .See s 35. it would perhaps have been arguable that rights attaching to groups defined by race were invalidated by s 15 (equality clause) of the Charter  Interpretation of treaty rights .The SCC has willingly embraced new powers conferred on it by this vague .  “Recognized and affirmed” .ca .Sparrow held that the word existing meant unextinguished.See R v Marshall as an example  Extinguishment of treaty rights .Same way is extinguishing aboriginal rights: (1) voluntary surrender to the Crown.This means that s 35 provides a constitutional guarantee of such rights (Sparrow).Because of s 1. included to make clear that the Charter is not to be construed as derogating from any aboriginal treaty or other rights etc .captan@utoronto. then the second stage is to determine whether the law is justified under s 1 as a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society  Role of s 33 .The Constitution Act. (2) constitutional amendment The need for constitutional protection . and therefore protects them from legislative attack . The first stage of judicial review is to determine whether the challenged law derogates from a Charter right (if it does not.S 35 provides that existing aboriginal and treaty rights are recognized and affirmed [3] INTERPRETATION OF CHARTER Expansion of judicial review  New grounds for review . After a law is struck down by the Court.1 Section 35 .The Charter includes. an override power. or e-mail him @ andrew.The period of judicial activist since 1982 has been described as the Charter revolution .In the absence of s 25.Because of the vagueness of the Charter. suggested that special status might be unconstitutional (4) Aboriginal and treaty rights could be modified or extinguished by constitutional amendment. under the Charter. If the law does derogate from a Charter right.Judicial review is also more policy driven given the vagueness of the terms of the Charter  Vagueness of concepts . He successfully completed all of the NCA requirements in the January. . judicial review of legislation under the Charter of Rights is a 2 stage process. as s 33. The Charter adds a new set of constitutional provisions that will invalidate inconsistent laws .Consider the various elements of the section independently  “Existing” . and ss 7 – 15 .For tutoring on this subject by the person who created these notes. which enables the Parliament or a Legislature to enact a law that will override the guarantees in s 2. and doubtful expressions resolved in favour of Indians . and it is an interpretive provision. and most of the time a replacement law is in fact enacted  The role of s 1 . a federal statute would have that effect only if the intention to extinguish was “clear and plain”.Aboriginal and treaty rights suffered from 4 serious infirmities prior to receiving constitutional protection: (1) Uncertainty of the precise legal status of the rights (2) Doctrine of parliamentary sovereignty which meant that aboriginal rights were vulnerable to change or abolition by the action of the competent legislative body (3) Equality.

He successfully completed all of the NCA requirements in the January.Another way in which the concept of dialogue has affected the reasoning and results of constitutional cases is the SCC’s willingness to suspend a declaration of invalidity after a finding that a law is unconstitutional.Mills case shows how concept of dialogue used to show deference to legislative decision. so that the constitution can be adapted over time to changing conditions .Avoiding a narrow and technical construction of the constitution. precedent . focussing on the fairness of procedures taken rather than substantive outcomes.Where the effect of a law on a Charter right is trivial or insubstantial. as the legislatures and Parliament represent the will of the people. the Court is likely to uphold the second attempt [Underlying this is the idea that. If the effect of the law is to abridge a Charter right. but rather as starting a “dialogue” with the legislative branch as to how to best reconcile the individualistic values of the Charter with the accomplishment of social and economic policies for the benefit of the community as a while  Second look cases .There are a number. [Note: Toronto and surrounding area only] Dialogue with legislative branch  The idea of dialogue . they are in a better position to sort out such problems] .ca . the Court would prefer the legislature to design the appropriate remedy.But there are examples of cases where courts have reviewed Parliament/ a legislature’s second attempt at legislation. First.The presence in the Charter of the power to override in s 33 means that most decisions striking down statutes on Charter grounds can be reversed by the competent legislative body. legislative history and. The dialogue concept rational in this case is simply that in many cases where the Court has found a law to be unconstitutional. examining its purpose or effect b. there had been 66 cases in which the SCC had struck down a law on Charter grounds.Mills shows that the idea of dialogue indicates that when a legislature/Parliament has revised and re-enacted a law that the courts have found unconstitutional. For example. Separation of powers) Political questions doctrine . or e-mail him @ andrew.A constitution is likely to remain in force for a long time and is difficult to amend. not as imposing a veto on desired legislative policies. and concluded the law was still invalid.For tutoring on this subject by the person who created these notes. .A flexible interpretation that allows the constitution to be adapted over time to changing conditions is what progressive interpretation refers to  Generous interpretation . then the law will be unconstitutional.The focus in this part is on (1)(a) .e. including some international instruments.This is a US doctrine (re: justiciability) that Canada has not accepted Characterization of laws . .e.Legislation with an invalid purpose can’t be saved by s 1 (Big M Drug Mart) . characterize the challenged law.BUT it’s the “effect” that is normally at issue  Trivial effects .The principle of democracy encourages remedies that allow the democratic process of consultation and dialogue to occur. which illustrates that the decisions of the Courts usually leave room for a legislative response . Second. of course. call Andrew @ (647) 878-6355.A study published in 1997 showed that from the inception of the Charter.Judicial respect for the autonomy of the other branches of government would also argue for restrain in crafting orders to compel the executive branch to rectify Charter breaches (i. by giving it a large and liberal interpretation  Purposive interpretation  Process as purpose . 2010 sitting. Hogg thinks not. then the law will be unconstitutional (unless it is saved by s 1) – distinguish between purpose and effect  Purpose or effect .It is helpful to think of the Court’s Charter decisions. a prohibition of the use of English in commercial signs that was struck down as a breach of freedom of expression was revived by the Quebec Legislature.Is a process based theory suitable for guiding J. Sources of interpretation .A law will offend the Charter if either its purpose or its effects is to abridge a Charter right . .Two stages: (1) Determine whether the challenged law abridges a Charter right: a.If the purpose of a law is to abridge a Charter right. Of the 66 cases. . which calls for a flexible interpretation.? I. interpreted the language of the Charter of Rights to determine whether it has been abridged by the challenged law (2) S 1 analysis if applicable .R. all but 13 elicited some response from the competent legislative body. invoking s 33 .captan@utoronto. there is no breach of the Charter (R v Jones) Interpretation of Charter  Progressive interpretation .

by-laws. officials. Hogg says that this is a requirement for a body/person who is exercising statutory authority to be bound by the Charter.g.The Charter appears to apply to courts (see BC Government Employees’ Union v BC). any statute enacted that is inconsistent with the Charter will be outside the power of the enacting body and will be invalid  What about statutory authority . such as administrative tribunals and labour adjudicators. admin tribunals. speaks of “everyone” and has been interpreted to extend to corporations.The reference to Parliament and provincial legislatures in s.e.Whether one can benefit depends on the wording of the right . but ALSO if they perform an act properly characterized as a government activity.S 32 provides that the Charter applies to all matters within the authority of the federal and provincial governments.So.The Charter applies to the exercise of statutory authority regardless of whether the actor is part of the government or is controlled by the government – it is the exertion of a power of compulsion granted by statute that causes the Charter to apply. if there is an entity exercising statutory powers of compulsion. the organization is subject to the Charter with regards to that act (see Eldridge)  Government “inaction” .  Governmental action . for example ministers. . orders. i.Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter.But there are cases which deviated from that position. 2010 sitting. One deviation was in Eldridge. He successfully completed all of the NCA requirements in the January. decisions and ALL OTHER ACTION (whether legislative. administrative or judicial) which depends for its validity on statutory authority. 1982 Who is protected by the Charter? . And so.Entities implementing government programs: Entities will be subjected to the Charter not if they are characterized as ‘government’. but at the specific act which the organization performs. for e. Constitution Act. is bound by the Charter. relies on government funding for its survival. municipalities. SCC stated that courts not part of government for purposes of s 32(1) of Charter (but has since been generally ignored)  Common law [4] APPLICATION OF CHARTER: s 32. Thus..Charter applies to government action taken under prerogative powers (common law powers possessed only by government) and common law powers possessed by everyone . and that ought to take priority over the Charter ground . But even some of the rights that have been framed in terms of “everyone” have been held to be inapplicable to corporations because of their nature. . section 2.The section explicitly says that the Charter applies to the Parliament and government of Canada AND to the legislature and government of each province  Parliament or legislature . where it was held that the Charter was applicable despite the absence of any power of compulsion (Hogg disagrees w/ the case –but Hogg isn`t the law). If a Charter right or freedom requires the fulfilment of a positive obligation. not governmental actors. [Note: Toronto and surrounding area only] Priority between federal and Charter grounds . the Charter will apply to inaction on the part of the government with jurisdiction to meet that obligation . Still.If an entity is part of the government. but not freedom of religion.Corporations may benefit from many rights. neither body can authorize action which would be in breach of the Charter. By contrast.There are many examples which illustrate that bodies or persons possessing statutory authority are often independent of the federal or provincial governments.Any body exercising statutory authority. just because an organization is created by statute. 32 of the Charter means that when laws are passed by those bodies. call Andrew @ (647) 878-6355. If the act is found to be an act of government. Section 15 applies to "every individual". a court falls under the term “government” . or e-mail him @ andrew. This analysis involves looking not at the organization itself. Slaight): The result of the decision in Slaight is that some adjudicative bodies. .When a law is challenged on both federal and Charter grounds.But in Dolphin Delivery. and has been restricted to only “natural persons”.Who is bound by the Charter? See the wording of s 32 . limitations on statutory authority which are imposed by the Charter will flow down the chain of statutory authority and apply to regulations. . Burden of rights . it is the federal ground that is the more fundamental of the two.ca .g. they must comply with the Charter.captan@utoronto. e. then they will be subject to Charter (see. are bound by the Charter. .Institutions controlled by government (agents): Here. then the Charter will ordinarily apply to all of its actions. the corporations can enjoy freedom of expression.For tutoring on this subject by the person who created these notes.Vriend case . . and serves a public purpose does not render them a government body.contains discussion of the inaction issue in the context of equality rights  Courts . The government must have some type of direct control in shaping the organization’s policies for it to be considered a government body (McKinney v University of Guelph – Court held that universities are not subject to the Charter. in guaranteeing the fundamental freedoms. but colleges are) .

For tutoring on this subject by the person who created these notes. call Andrew @ (647) 878-6355. encompassing omnibus statutes. but blanket declarations. This analysis involves looking not at the organization itself. If the act is found to be an act of government. [Note: Toronto and surrounding area only] . He successfully completed all of the NCA requirements in the January. can be referred to (Ford) .  It is first necessary to decide whether the legislation impugned in the present appeal can be interpreted in conformity with the Charter. either by its very nature or by virtue of the degree of governmental control exercised over it. 15(1) of the Charter in some circumstances. She suggested that both statutes could be read to conform with s. but at the specific act which the organization performs. but it does not regulate the relations between private persons and private persons . hospital) is itself a government body for the purposes of s. Counsel for the appellants proposed an alternative argument akin to the framework set out in Slaight.The declaration cannot be retroactive (Ford) Ford v Quebec FACTS: Quebec.e.The declaration must be express to override rights .  HOWEVER.captan@utoronto. it does apply (Dolphin Delivery) . the Parliament or a Legislature is enabled to enact a statute limiting (or abolishing) one or more of the rights or freedoms guaranteed by s 2 or ss 7 – 15 . a declaration that doesn’t refer to any Charter provision would not be effective . an entity may be found susceptible to Charter analysis with respect to a particular ACTIVITY that can be ascribed to the government -. if the applicable law is a rule of the common law.  Health care is a keystone of government policy.15 of the Charter. Greater Vancouver Transportation Authority v Canadian Federation of Students  The Charter applies not only to Parliament. it is not the legislation that is constitutionally suspect. the legislatures and the government themselves.There are critiques of this. if it is a rule of statute. ISSUE: Is the charter enforceable against hospitals. 2010 sitting. If the entity is found to be “government”. properly be characterized as ‘government’. I do not see how the Medical and Health Care Services Act can be interpreted as mandating that result (i. and the manner in which they hire staff and deliver health care. but also to all matters within the authority of those entities  There are two ways to determine whether the Charter applies to an entity’s activities: by enquiring into the nature of the entity or by enquiring into the nature of its activities. If the act is governmental in nature . either because of its very nature or because the government exercises substantial control over it.The Charter regulates the relations b/w government and private persons.for example. under which an express declaration will automatically expire at the end of five years. 32. the Charter does not apply. the implementation of a specific statutory scheme or a government programthe entity performing it will be subject to review under the Charter only in respect of that act. or e-mail him @ andrew.Through the use of this override power. This involves an inquiry into whether the entity can. . Section 33(4) permits the express declaration to be reenacted . but ALSO if they perform an act properly characterized as a government activity.More than one provision.  Hospitals cannot be characterized as government because they have autonomy as to who sits on their Boards.The declaration must refer specifically to the Charter provision that is to be overridden. wanted to create an automatic rule that would have ALL their legislation operate notwithstanding the charter. but Hogg thinks it’s an appropriate setup Eldridge v BC FACTS: A group of deaf individuals sought a declaration that the failure to provide public funding for sign language interpreters for the deaf when they received medical services violated s.g. but rather the actions of delegated decision-makers in applying it  Assuming that the failure to provide sign language interpreters in medical settings violates s.The declaration must be specific as to the statute.This demands not an examination of the entity but the act itself.But it does influence the way the Charter is interpreted. the only province to oppose the creation of the Charter.  There is no doubt that the Charter also applies to action taken under statutory authority  A primary question in the present case is whether the alleged breach of s.  Typically. RATIO: Entities will be subjected to the Charter not only if they are characterized as ‘government’. the organization is subject to the Charter with regards to that act. and therefore the Charter indirectly applies to the c/l (see Hill v Church of Scientology)  Private action . 15(1) arises from the impugned legislation itself or from the actions of entities exercising decision-making authority pursuant to that legislation. [5] OVERRIDE OF RIGHTS: s 33 . 15(1). so any organization providing health care (including hospitals) must do so in a way that conforms to Charter provisions. Counsel for appellant is right)  The issue is whether the Charter applies to the body employing the Act. Under this theory.S 33(3) is a sunset clause.ca . or even all. all its activities will be subject to the Charter. are allowed (Ford) . courts seek to determine if the entity (e. particularly with regards to the way they deliver medical services? REASONING:  There is no question that the Charter applies to provincial legislation.In Canada.

This . not reasonable to require a reference that was particular to the statute containing the declaration. The ratio of Edwards Books is this: “Religious freedom is not necessarily infringed when a statutory obligation coincides with the dictates of a particular religion. The secular purpose of providing a common pause day was sufficiently important to justify a limit on freedom of religion. whether an all-encompassing (omnibus) use of the override is valid (obiter). challenges were brought by companies who wished to open their stores on Sundays in order to maximize profits.captan@utoronto. the Sunday closing cases establish that there is a constitutional obligation under s 2(a) to accommodate those persons whose religion calls for observance of a Sabbath on a day other than Sunday [6] FREEDOM OF RELIGION: s 2(a) . which is unacceptable  SCC held that ominous reference to rights was sufficient. However Quebec could not do this retroactively (would not apply to legislation already in effect prior to the omnibus legislation).Definition of religion offered in this case: “The essence of freedom of religion is the right to entertain such religious beliefs as a person chooses.Leading case is Big M Drug Mart .33 will keep governments in check.Issue in these cases was whether people should have the ability to make a profit on Sundays.  Freedom of religion . it may be a justifiable limit in light of (1) an ameliorative objective held by the government. But we have created a culture in which the use of the clause now would be met with political disapprobation. 33 declaration is sufficiently express if it refers to the number of the section. and whether a retrospective override clause is acceptable (obiter) REASONING:  SCC held that s.But See Edwards Books case. because a legislative body “might not be in a position to judge with any degree of certainty what provisions of the Charter might be successfully invoked against various aspects of the Act in question”  SCC held normal presumption against retroactivity should be applied to the language of s.The idea that freedom of religion authorizes religious practices only so far as they do not injure others has been abandoned by the SCC in favour of an unqualified right to do anything that is dictated by a religious belief (BR v Children’s Aid Society). When freedom of religion IS infringed. Mechanism is simple but the reality political costs of invoking s.s 2(a) guarantees “everyone the fundamental freedom of conscience and religion”  Freedom of conscience . The requirement (suggested by the CoA) of an apparent link or relationship between the overriding Act and the guaranteed rights or freedoms to be overridden seems to be a substantive ground of review. 2010 sitting. . The ratio of Big M is this: “The 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”. The Lord’s Day Act. [Note: Toronto and surrounding area only] ISSUE: Whether legislation overriding multiple sections of the Charter is acceptable. under section 33 (need express language such that the infringement on Charter rights would be sufficiently drawn to public attention). which is not compatible w/ 2(a). and (2) evident efforts by the government to accommodate the rights of those affected” . subsection or paragraph of the Charter which contains the provision or provisions to be overridden. 33 may be invoked. If the federal government had used s.Big M Drug Mart indicated that freedom of religion would not protect minority religious groups in such practices which injure his or her neighbours. 33 selectively since 1982. the right to declare religious beliefs openly and without fear of hindrance or reprisal. call Andrew @ (647) 878-6355. and the right to manifest religious belief by worship and practice or by teaching and dissemination” . or e-mail him @ andrew.R v Big M Drug Mart statute was struck down because it’s PURPOSE was to compel the observance of Christian Sabbath. it might be acceptable to use it now. in its purpose and effects. . He successfully completed all of the NCA requirements in the January.Not important Freedom of Religion  Tolerance of other religious practices . The SCC upheld a law that prohibited retail stores from opening on Sunday based on its secular purpose. 1. and is not justifiable under s. COMMENTS: Despite ease with which s.In short. use of the override would be politically crippling for most governments. But that has been overruled.For tutoring on this subject by the person who created these notes.s 2(a) protects religious practices and beliefs  Sunday observance/Sunday shopping cases . and the section should be construed as permitting “prospective derogation only. infringes this guarantee. and which are not characterized as religions for that reasons . . The law was upheld despite it’s EFFECT of imposing economic burden on those retailers who observed Sabbath on a day other than Sunday.33.S 2(a)’s reference to “conscience” would protect systems of belief which are not theocentric (centred on a deity).ca .” RATIO: The court held that Quebec could enact this blanket legislation immunizing all their legislation from Charter scrutiny.

particularly where s 2(a) is being relied upon by the applicant in a situation where they.What is the definition and content of an individual’s protected right to religious freedom under the Quebec (or the Canadian) Charter? This Court has long articulated an expansive definition of freedom of religion.Our Court’s past decisions and the basic principles underlying freedom of religion support the view that freedom of religion consists of the freedom to undertake practices and harbour beliefs. and (3) whether the appellants waived their rights to freedom of religion by signing the declaration of co-ownership. . Such an approach would be inconsistent with the underlying purposes and principles of the freedom emphasizing personal choice as set out by Dickson C. while a court is not qualified to rule on the validity or veracity of any given religious practice or belief.captan@utoronto.“Because of the vacillating nature of religious belief. The Quebec courts denied the claim ISSUES: (1) Whether the clauses in the by-laws of the declaration of co-ownership. having a nexus with religion. Court sets out the test for determining whether what a claimant claims is a “religious” belief or practice pursuant to s (2)(a) is in fact protected by that section) FACTS: The cases which are the subject of this appeal involve a religious claim by the appellants for the setting up of a “succah” for nine days a year in the pursuit of their religious beliefs on their co-owned property under the Quebec Charter of Human Rights and Freedoms. are at risk of harm. the right to declare religious beliefs openly and without fear of hindrance or reprisal.. should focus not on past practice or past belief but on a person’s belief at the time of the alleged interference with his or her religious freedom” . which contained a general prohibition against decorations or constructions on one’s balcony.J. in Big M and Edwards Books. it could be unique to the claimant.ca . or e-mail him @ andrew. infringe the appellants’ freedom of religion protected under the Quebec Charter. 1 thereof. [Note: It seems that while s 2(a) is very broad.The ambit of s 2(a) was expanded even more in Syndicat Northwest v Amselem. REASONING: Definition of freedom of religion . themselves. requirement or precept to invoke freedom of religion. R. HOWEVER. or there is harm to others. irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials. All that the student had to show was “that his personal and subjective belief in the religious significance of the kirpan is SINCERE”. in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith. or even a belief system shared by some others.S. “voluntary expressions of faith” were equally protected. Both obligatory as well as voluntary expressions of faith should be protected . the individual also has a right to ACT on those views . (2) if so. Court said this violates s 2(a). The Court defined protected religious practice in an extraordinarily broad fashion: the practice need not be part of an established belief system. and that it is not an artifice”. it is qualified to inquire into the sincerity of a claimant’s belief. 6 of the Quebec Charter and their rights to personal security under s. or to choose among various interpretations of belief.Bruker v Marcovitz indicates that you can contract to withhold a religious practice/belief. c. the SCC again held that a damaging practice was protected by freedom of religion (namely the dissemination of the opinion that Christian civilization was being destroyed by an international Jewish conspiracy). neither fictitious nor capricious. He successfully completed all of the NCA requirements in the January. if anything. call Andrew @ (647) 878-6355. a court’s inquiry into sincerity. the law was upheld under s 1. part of the order could be justified under s 1 as a measure to remedy an anti-semetic environment in the school (the order being moving him to a non-teaching position). whether in the form of physical or psychological harm]  Waiver of religious practice . whether the refusal by the respondent to permit the setting up of a succah is justified by its reliance on the co-owners’ rights to enjoy property under s.See Zylbeerberg and Canadian Civil Liberties Association cases – it is unconstitutional to impose Christian beliefs on all students. which he did. . 2010 sitting.A claimant need not show some sort of objective religious obligation. although Syndicat Northwest indicates you cannot  Religion in public schools .In Ross v NB School District. HOWEVER. And. C-12 (the “Quebec Charter”).Must focus on subjective perceptions of religion – determining what the individual sincerely believes .Q. the issue was whether a boy was constitutionally entitled to wear a kirpan to his school in the face of a school board regulation that prohibited students from bringing weapons and other dangerous objects to school. and the right to manifest religious belief by worship and practice or by teaching and dissemination” .For tutoring on this subject by the person who created these notes. All that was necessary to qualify a practice for Charter protection was that the claimant sincerely believed that the practice was “of religious significance”.Dickson CJ in Big M first defined “religion”: “The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses.e.That said. s 1 cuts back its scope. . . The court’s role in assessing sincerity is intended only to ensure that a presently asserted religious belief is in “good faith. [Note: Toronto and surrounding area only] case involved a law that said that child must have blood transfusion if life in danger.In Multani. The practice need not be perceived as obligatory by the claimant. even if non-Christian students can opt out of religious practices Syndicat Northcrest v Amselem (New definition of “religion” provided – i. The test is purely subjective. which revolves around the notion of personal choice and individual autonomy and freedom .

even if the claimant successfully demonstrates non-trivial interference. 2(a) of the Charter encompasses the right to believe and entertain the religious beliefs of one’s choice. Quebec’s Charter doesn’t have that section. . and (2) He or she is sincere in his or her belief. The appellants K and F submitted expert evidence of their sincere individual belief as to the inherently personal nature of fulfilling the commandment of dwelling in a succah. I believe that a waiver argument. Requiring proof of the established practices of a religion to gauge the sincerity of belief diminishes the very freedom we seek to protect” . In the case of K and F. as a prohibition against setting up his own succah obliterates the substance of his right.Summary of TEST: at the first stage of a religious freedom analysis.No right.ca . given the expansive protection afforded to religion by s. Such expert testimony. 2(a) of the Charter.The right to freedom of religion enshrined in s. I find that the impugned provisions in the declaration of co-ownership prohibiting constructions on the appellants’ balconies infringe the appellants’ freedom of religion under the Quebec Charter. it cannot be said that the claimants had full knowledge that signing the co-ownership agreement would result in the waiver of their rights. or an argument analogous to waiver. having a nexus with religion. I say that because. either by being objectively or subjectively obligatory or customary. cannot be maintained on the facts of this case for several reasons – in short. . suffices in positively assessing the sincerity and honesty of their belief. the trial judge correctly concluded that the appellant A sincerely believed that he was obliged to set up a succah on his own property. even assuming that an individual can theoretically waive his or her right to freedom of religion.So two questions must be asked: whether an individual’s freedom of religion has been infringed based on whether the claimant can demonstrate he or she sincerely believes in a practice or belief that has a nexus with religion. in general.Only then will freedom of religion be triggered. held. Reference re: Same Sex Marriage Does the Freedom of Religion Guaranteed by Section 2(a) of the Charter Protect Religious Officials From Being Compelled to Perform Same-Sex Marriages Contrary to Their Religious Beliefs? . or e-mail him @ andrew. and the respondent contends. He successfully completed all of the NCA requirements in the January.Whether one can waive a constitutional right like freedom of religion is a question that is not free from doubt . The appellants are thus legally entitled to set up succahs COMMENT: There was no s 1 analysis. and that the appellants must comply with the impugned provisions of the Sanctuaire’s by-laws . call Andrew @ (647) 878-6355.All of the appellants have successfully implicated freedom of religion: The trial judge’s approach to freedom of religion was incorrect.The infringement of such a belief by restricting the creation of succah’s is non-trivial: It is evident that in respect of A. . second. subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith. an individual advancing an issue premised upon a freedom of religion claim must show the court that: (1) He or she has a practice or belief.Dalphond J. dissemination and religious practice. although not required. HELD: Based on the foregoing analysis. they did not voluntarily. First. they have proven that the alternatives of either imposing on friends and family or celebrating in a communal succah as proposed by the respondent will subjectively lead to extreme distress and thus impermissibly detract from the joyous celebration of the holiday Waiver . which calls for a particular line of conduct. religious conduct which would potentially cause harm to or interference with the rights of others would not automatically be protected. or by.Section 2(a) of the Canadian Charter prohibits only burdens or impositions on religious practice that are non-trivial. he seems to have based his findings with respect to freedom of religion solely on what he perceived to be the objective obligatory requirements of Judaism. because this case occurred in Quebec.captan@utoronto. Application to the facts . On the issue of sincerity. further. .The performance of religious rites is a fundamental aspect of religious practice. that the appellants had waived their rights to freedom of religion — or had implicitly agreed with the terms of the by-laws — when they signed the declaration of co-ownership. he chose between two competing rabbinical authorities on a question of Jewish law. 2010 sitting.Note. the impugned clauses of the declaration of co-ownership interfere with his right in a substantial way. . we conclude that such compulsion would almost certainly run afoul of the Charter guarantee of freedom of religion. however. [Note: Toronto and surrounding area only] . religious officials could be required to perform same-sex marriages contrary to their religious beliefs. whether the impugned conduct/legislation interferes with the individual’s ability to act in accordance with that practice or belief in a manner that is non-trivial . thus failing to recognize that freedom of religion under the Quebec (and the Canadian) Charter does not require a person to prove that his or her religious practices are supported by any mandatory doctrine of faith. is absolute . Infringement of religious freedom .But I need not explore that question in this case. teaching.If a promulgated statute were to enact compulsion. irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials or expert testimony.For tutoring on this subject by the person who created these notes. clearly and expressly waiver their rights to freedom of religion.The concern here is that if the Proposed Act were adopted. the right to declare one’s religious beliefs openly and the right to manifest religious belief by worship.Expert evidence not required: “Religious belief is intensely personal and can easily vary from one individual to another. Second. including freedom of religion. . It therefore seems clear that state compulsion on religious officials to perform same-sex .

Following 2003. 2(a) of the Charter. when one balances the harm done to the claimants’ religious freedom against the benefits associated with the universal photo requirement for driver’s licences. but members of the Wilson Colony rejected the proposals on the basis that the act of taking the photos was itself a violation of the Second Commandment ISSUE: Freedom of religion and the nature of the limit on s 2(a) right.For tutoring on this subject by the person who created these notes. The requirement of a photo on a driver’s licence serves the additional purpose of assisting police officers in reliably identifying drivers at the roadside. The government’s proposals were said to be aimed at “minimiz[ing] the impact of the universal photo requirement on religious beliefs by removing the need for Colony members to have any direct contact with the photos” (at para. made under the Traffic Safety Act. establish the seriousness of the limit for purposes of the proportionality analysis. all photos taken for driver’s licences were placed in a facial recognition bank. The government put forward evidence to show that the universal photo requirement is more effective in preventing identity theft than a system that grants exemptions. 2(a) of the Charter will be made out where: (1) the claimant sincerely believes in a belief or practice that has a nexus with religion. .The members of the Colony believe that permitting their photo to be taken violates the Second Commandment . without more. whether the claimants’ religious beliefs or conduct might reasonably or actually be threatened): Syndicat Northcrest v.” The government did not accept this proposal. believe that it is contrary to the Second Commandment to have their photo willingly taken. or e-mail him @ andrew. b. Proportionality test (1) Is the limit rationally connected to the purpose? The Province must show that the universal photo requirement is rationally connected to the goal of preserving the integrity of the driver’s licensing system by minimizing the risk of identity theft through the illicit use of driver’s licences. but digital photos of Hutterite drivers would be placed in the facial recognition bank.Although the limit was set out in a regulation rather than primary legislation. [Note: Toronto and surrounding area only] marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. including the members of the Wilson Colony in southern Alberta. is the limit on the right proportionate in effect to the public benefit conferred by the limit? a. Deleterious effects: Because religion touches so many facets of daily life. .Given these beliefs.The first part was conceded. and so it is rationally connected (2) Does the limit minimally impair the right? In making this assessment.This is a goal of pressing and substantial importance.e. The bare assertion by a claimant that a particular limit curtails his or her religious practice does not. they proposed that they be issued licences without photos. 137/2003. 2000. c. According to the government. The evidence discloses no alternative measures which would substantially satisfy the government’s objective while allowing the claimants to avoid being photographed. Is the limit justified under s 1? REASONING: Freedom of religion and nature of limit .S. marked “Not to be used for identification purposes. and (2) the impugned measure interferes with the claimant’s ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial (i. and because a host of different religions with different rites and practices coexist in our society. and suggested two alternatives: (1) licences would display a photo but be carried in a sealed envelope indicating they were the property of Alberta. Alberta v Hutterian Brethren of Wilson Colony FACTS: Until May 2003. capable of justifying limits on rights.A. Alta. or (2) licences would be photo-less. 12). We must go further and evaluate the degree to which the limit actually impacts on the adherent. 2010 sitting. call Andrew @ (647) 878-6355. so move on to s 1 analysis Section 1 analysis Is the limit prescribed by law? . Salutary effects: A couple of salutary effects were raised on evidence. by lower courts.An infringement of s. it is still “prescribed by law” Is the purpose of the limit pressing and substantial? . the universal photo requirement was adopted to minimize identity theft arising from the use of driver’s licences. He successfully completed all of the NCA requirements in the January. the Registrar of Motor Vehicles allowed licences without photos to be issued to persons who objected to having their photograph taken on religious grounds. Reg. or of foregoing driver’s licences . Amselem .ca . was assumed.captan@utoronto. To carry out this objective. All other options would significantly increase the risk of identity theft using driver’s licences. but does not indemnify practitioners against all costs incident to the practice of religion. The Charter guarantees freedom of religion. Internal integrity of the system would be compromised without this requirement.T-6. Hutterites. the courts accord the legislature a measure of deference. the effect of the universal photo requirement is to place Colony members who wish to obtain driver’s licences either in the position of violating their religious commitments. it is inevitable that some religious practices will come into conflict with laws and regulatory systems of general application. The measure seeks to realize the legislative goal in a minimally intrusive way (3) Is the law proportionate in its effect? In other words.The purpose of the law is maintaining integrity of the driver’s licensing system in a way that minimizes the risks of identity theft. and the second part. R. the most important being the enhancement of the security and integrity of the driver’s licensing scheme. In 2003 this exemption was removed via the Operator Licensing and Vehicle Control Regulation.

There isn’t much activity that ISN’T included in this definition.For tutoring on this subject by the person who created these notes. many do not. hate propaganda offences limits s 2(b). R v Lucas) . Because such restrictions do not regulate the CONTENT of expression.There are a number of rationales. While most adult citizens hold driver’s licences. the SCC acknowledged that such material made no contribution to democratic government and made no contribution to the search for truth.Commercial expression is constitutionally protected (Ford v Quebec) . Irwin Toy accepted each of these reasons for protecting freedom of expression . It merely provides that a person who wishes to obtain a driver’s licence must permit a photo to be taken for the photo identification data bank.Expressive activity that takes the form of violence is not protected (Irwin Toy)  Content neutrality . manner and place of expression . and expression. a court would likely uphold the impugned law under s 1 . the relevant activity must be an “expression”.g. second. manner and place of expression. But what is definitely excluded is that which is “purely physical and does not attempt to convey meaning” (Irwin Toy)  Criminal expression .The implication of this is that s 2(b) extends to much activity that isn’t worthy of constitutional protection Regulating time. 2010 sitting.Deliberate falsehoods are protected by s 2(b) (see R v Zundel. for a variety of reasons. of which the most important example is advertising. call Andrew @ (647) 878-6355. Language . or e-mail him @ andrew. HELD: I conclude that the limit on the Colony members’ freedom of religion imposed by the universal photo requirement for holders of driver’s licences has been shown to be justified under s. For regulating expression in public space. is not a case like Edwards Books or Multani where the incidental and unintended effect of the law is to deprive the adherent of a meaningful choice as to the religious practice. Driving automobiles on highways is not a right. including freedom of the press and other media of communication” .“The content of a statement cannot deprive it of the protection accorded by s 2(b) no matter how offensive it may be (e.Freedom of expression includes the freedom to express oneself in the language of one’s choice (Ford v Quebec) [7] FREEDOM OF EXPRESSION: s 2(b) Charter .For all Charter rights.g. the issue is whether the law can be upheld under s 1 if there is an infringement.To be protected under s 2(b). and is protected . you must ask whether the law (or action) has the purpose or effect of limiting the relevant right. belief. the instrument of personal fulfilment.g.The breadth of this right is entailed by acceptance of the personal fulfilment rationale (e. On the evidence before us. because of how broadly it has been interpreted. Keegstra = SCC held that the promotion of hatred against Jews is protected by s 2(b)”) . Irwin Toy). Reasons for protecting expression . c.“Solely because activities have been made subject of criminal offences doesn’t mean they aren’t protected by s 2(b)” (Keegstra) (e. it’s role as an instrument of truth. The issue generally is s 1. but the Court held that it should be constitutionally protected because of its role as an instrument of personal fulfilment) Meaning of expression  Definition of “expression” Commercial expression  Protection of commercial expression . opinion. R v Sharpe: there was a constitutional challenge to the offence of possession of child pornography.But the regulation of time. in most cases it is easy to conclude that the impugned law does limit s 2(b).Section 2(b) guarantees everyone the “fundamental freedom” of “freedom of thought. is proportionate. But for s 2(b).ca . . 1 of the Charter . An “expression” is an activity which attempts to convey meaning (R v Keegstra. Weighing the salutary and deleterious effects: Balancing the salutary and deleterious effects of the law. regulating private space is not subject to Charter review. He successfully completed all of the NCA requirements in the January. I conclude that the impact of the limit on religious practice associated with the universal photo requirement for obtaining a driver’s licence. but a privilege.Note: for regulation the place of expression.captan@utoronto. The law does not compel the taking of a photo.Commercial expression. or adversely impacting on other Charter values. see “access to public property” below for a specific test to see if the Charter protects expression there. there is a 2 stage process: first. that cost does not rise to the level of depriving the Hutterian claimants of a meaningful choice as to their religious practice.The least severe form of restriction on expression is the regulation of the time. but has been saved under s 1)  Violence . is expression designed to promote the sale of goods and services. including: it’s role as an instrument of democratic government. [Note: Toronto and surrounding area only] HERE. manner and place can be so broad as to amount to an unacceptable restriction on expression (Ramsden v Peterborough) .

namely: (1) democratic discourse (2) truth finding and (3) self fulfilment” Access to courts .E. The by law was challenged.See also UCFW v Kmart.There is a communicative element to a picket line. including purely informational advertising. s 2(b) is potentially applicable . and a decreasing consumption of cigarette smoke. the Court held that the prohibition could be upheld under s 1. SCC held that the injunction was a limit on freedom of expression. including obscenity.E. that was prohibited by the by law. RJR Macdonald v Canada AG: MacDonald (Tobacco Company) disputed legislation involving ban on tobacco advertising.whether the public place is one where one would expect that expression in that place does not conflict with the purposes which s 2(b) is intended to serve.See also R v Sharpe for the constitutionality of child pornography law . [Note: Toronto and surrounding area only] ..g. the SCC held that false and injurious statements are not deserving of much protection Pornography . thus failing on the minimum impairment limb. the majority held that it overly impaired 2(b) freedom. Because it was a general ban.First.. The SCC held that this infringed G’s right to put up a sign on his property.g. and the limit could not be justified under s 1 (the Court decried the law as arbitrary and disproportionate to any benefit that it secures for the municipality) Picketing .The expression cases in the SCC make clear that pornography. This kind of censorship is the most severe kind of limit on freedom of expression. Majority held that the legislation would not have breached freedom of expression had it been targeted at things like ‘recruitment of new smokers’ or ‘young people’ or association of smoking with things cool/hip (delineated categories.R v Guignard: A municipal by law prohibited advertising signs and billboards except in industrial zones of the municipality. because the Charter does not apply to private action.Remember that “freedom of press” is explicitly guaranteed in s 2(b)  Restrictions on reporting  Advertising restrictions . since the Charter applies to governmental action. was the least drastic means of accomplishing the objective. . or deny approval. but that there is no rational connection between the general ban of ads. rather than allencompassing ban). Rocket v Royal College of Dental Surgeons: Dentists were prohibited from advertising their services. But the Court went on to uphold the criminal offence under s 1 Defamation . He successfully completed all of the NCA requirements in the January. The club was charged under a by law that prohibited noise produced by sound equipment that could be heard outside a building. But Court could not accept that a total ban on all forms of advertising.R v Butler: The SCC held that the prohibition of obscenity in the CC offended s 2(b).See also Vancouver Courthouse: Injunction issued to prohibit picketing of the courts. 2(b).ca . is protected expression .In Hill v Church of Scientology.For tutoring on this subject by the person who created these notes.g. With respect to PUBLIC property. Pepsi Cola Canada v RWDSU Hate propaganda .General rule (and if the circumstances are appropriate). to exhibit or distribute a film that is regarded as pornographic. and so that was an expression.Hate propaganda is material that promotes hatred against minority groups . 2010 sitting.Commercial signs are protected by s 2(b) . because the transmission was transmitted onto public property (the street).The tort of defamation provides a civil remedy for a person whose reputation has been damaged by false statements made by the defendants . who had been found guilty of making anti-semetic remarks to his students. is that the right to public property is protected for expression purposes (Committee for the Cth of Canada v Canada. Can such limits be justified under s 1? If the power of censorship granted extends to material that would not be obscene under the Butler test. the Court formulated a test for the application of s 2(b) on public property: “ask. had engaged in constitutionally protected activity. then it likely will fail s 1 Access to public property . .Many provinces confer a power on a board to censor. Ramsden v Peterborough) . but could be justified by s 1. and therefore it constitutes “expression” w/in s 2(b) (Dolphin Delivery) . The court held that there was enough evidence to show a rational connection between an advertising ban and the objective of reducing smoking.  Commercial signs . In determining whether the expression was protected.The Montreal v 2952-1366 Quebec case is the authority for the applicability/scope of the right: A strip club in Mtl set up a loudspeaker at its street entrance which it used to broadcast music and commentary that accompanied the show within.R v Keegstra: K. All parties accepted that legislation breached s. or e-mail him @ andrew. The broadcast conveyed a message about the show in the club. s 2(b) confers no right to use private property as a forum of expression. the SCC held. however.captan@utoronto. and the restriction was struck down as being overly broad -E. Irwin Toy: The SCC upheld a law that prohibited all commercial advertising directed at children under 13 (the protection of a particularly vulnerable group was a sufficiently important purpose to be upheld under s 1) . call Andrew @ (647) 878-6355..

Is the limit justified under s 1 of the Charter? . 2(b). While all expressive content is worthy of protection (see Irwin Toy. and Whether other aspects of the place suggest that expression within it would undermine the values underlying free expression [E. but their right to do it in the place where they were doing it. 2(b) is the activity?] Application: “Amplified emissions of noise from buildings onto a public street could further democratic discourse. (2) truth finding and (3) self-fulfillment.captan@utoronto. the SCC emphasized that the “open court principle” was guaranteed by s 2(b). truth finding and self-fulfilment. if the expression is protected by s. It follows that the By-law has the effect of restricting expression which promotes one of the values underlying s. it is asserted. First. despite being government-owned. 2(b) protection? YES. 969).Freedom of the press also includes the right to be present in court (Edmonton Journal v Alta) .In Re Vancouver Sun.Freedom of process includes the freedom to publish reports of proceedings in court. the purpose of the By-law is benign. 2(b) protection. at p. namely (1) democratic discourse. and that the limit is proportionate in the sense of being rationally connected to the objective. Here the City chose a two-pronged attack on noise pollution. 2(b) of the Canadian Charter protects not only what the appellants were doing. and having an effect in terms of curtailment of the right that is proportionate to the benefit sought: R. does the method or location of this expression remove that protection? Expressive activity may fall outside the scope of s 2(b) because of how or where it is delivered. there is nothing to suggest that to permit this medium of expression would subvert the values of s. 2(b). its effect is to restrict expression. it is presumptively protected by s 2(b).We conclude that the City’s ban on emitting amplified noise constitutes a limit on free expression under s. He successfully completed all of the NCA requirements in the January.ca . Regardless of the fact that the government owns and hence controls its property. many government places are essentially private in use. The fact that the message may not.g. impairing the right to freedom of expression in a reasonably minimal way. Does Article 9(1) of the by-law infringe s 2(b) of the Charter? . did the noise have expressive content. namely a public street.For tutoring on this subject by the person who created these notes. Is the space in fact essentially private. note the following: Proportionality is concerned with the means chosen to meet the objective. This is serious problem in urban centres (2) Proportionality assessment As background to this stage. the method or location of the expression may not be. and it could be limited by s 1 only if the standards of justification in Dagenais and Mentuck were satisfied Montréal (City) v. in the view of some. or is it public? Is the function of the space — the activity going on there — compatible with open public expression? Or is the activity one that requires privacy and limited access? Would an open right to intrude and present one’s message by word or action be consistent with what is done in the space? Or would it hamper . Combating noise pollution is the objective. But this isn’t an unqualified right (e. Oakes (1) Objective: Pressing and substantial? Yes. or e-mail him @ andrew.Onus is on the City to show that the limit is directed at a pressing and substantial objective. does not deprive it of s. thereby bringing it within s. To answer this question. does the By-law infringe that protection. 2952-1366 Québec Inc FACTS: This appeal concerns the power of the city of Montréal (“City”) to prohibit noise produced in the street by a loudspeaker located in the entrance of an establishment ISSUE: Whether the provisions of the by-law are constitutionally invalid REASONING: A. 2(b) of the Canadian Charter . 2(b)” (3) Third. if so.The relevant test/standard to be applied in these types of cases is that court proceedings are to be open UNLESS disclosure would subvert the ends of justice or unduly impair its proper administration (Toronto Star Newspapers)  Restrictions on access . the following factors should be considered: (a) (b) The historical or actual function of the place.g. it prohibited noises exceeding a stipulated degree of loudness: intended to serve. call Andrew @ (647) 878-6355. However.The answer to this question depends on the answers to three questions (see Irwin Toy): (1) First. [Note: Toronto and surrounding area only] . there can be restrictions where the purpose of the restriction is to protect the identity of complainants in sexual assault cases: Canadian Newspapers Co v Canada) . v. (2) Second. 2(b) of the Canadian Charter B. either in purpose or effect? . This case raises the question of whether the location of the expression at issue causes the expression to be excluded from the scope of s.Here. TEST: The basic question with respect to expression on governmentowned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. have been particularly valuable. The question here is whether s. Thus. Here. 2010 sitting. or may even have been offensive.

epidemics. successfully come to the rescue of an otherwise violation of s. whether it is inside a building or installed or used outside: art. it prohibited particular noises — namely noise that can be heard from the outside and is produced by sound equipment. whether the sentence is mandatory or discretionary. There is no other practical way to deal with the complex problem it was facing.Transfer of a prisoner to a higher level prison deprives liberty (May v Ferndale) . Noise targeted by art.A corporations is not “everyone” . Unlike in Ramsden. Clearly it is. [Note: Toronto and surrounding area only] art. The Court will not interfere simply because it can think of a better. where no relief from the restrictive by-law was possible.Outside the sphere of criminal justice. (b) Minimal impairment? In dealing with social issues like this one.For tutoring on this subject by the person who created these notes. only a few laws touch life. such as natural disasters. the limit is reasonable and can be justified within the meaning of s. and which ultimately increased risk to women’s health. . mean that its residents must necessarily be subjected to abuses of the enjoyment of their environment HELD: Although this provision limits the freedom of expression guaranteed by s.The is no breach of the s 7 rights UNLESS there has been a failure to comply with the principles of fundamental justice . less intrusive way to manage the problem. (c) Proportionate effect? In our view. Second. 9 does not represent an absolute ban.A fetus is not everyone.Our charter is not here to protect property . This does not. therefore cannot bring an action in s 7 on its behalf . however.“Section 1 may.Liberty includes freedom from physical restraint (so any law that imposes the penalty of imprisonment.A law that authorized corrective force against children infringed security of person. The expression limited by the By-law consists of noise produced by sound equipment that interferes with the peaceful use and enjoyment of the urban environment. It is important. and the like” (Reference Re BC Motor Vehicles Act) Elements of s 7 Life . LIBERTY AND SECURITY OF THE PERSON: s7 Background . or e-mail him @ andrew. and which resulted in delays in treatment. He successfully completed all of the NCA requirements in the January. account must be taken of the fact that the activity was taking place on a street with an active commercial nightlife in a large and sophisticated city.But excessive waiting times for treatment in the public health care system of Quebec increased the risk of death and were found to be a violation of the right to life (as well as security of the person) (see Chaoulli) Liberty  Physical liberty . where interests and rights conflict. 11. liberty or security of the person . 9.ca . regardless of content.Although “liberty” is generally taken to mean “physical liberty”. is by virtue of that penalty of a deprivation of liberty. the scheme of the By-law in this case anticipates routine granting of licences as exceptions to the prohibition: (a) Rational connection? The first question is whether the limit on noise produced by sound equipment is rationally connected to the City’s objective of limiting noise in the streets. 9 is prohibited regardless of whether it affects an inhabited place: art. for reasons of administrative expediency. and must conform to the principles of fundamental justice) . 2010 sitting. the outbreak of war. the test supports the conclusion that the By-law is valid. to note that art.S 7: “Everyone has the right to life.captan@utoronto. but only in cases arising out of exceptional conditions.A law that imposes only a fine is not a deprivation of liberty. call Andrew @ (647) 878-6355. 2(b) of the Canadian Charter. We acknowledge that in balancing the deleterious and positive effects of the By-law.This section has little work to do because governmental action rarely causes death .Changes in sentences involve a deprivation of liberty. was held to deprive women of security of person (Morgentaler) [8] LIFE. liberty and security of the person and the right not to be deprived thereof except in accordance w/ the principles of fundamental justice” . elected officials must be accorded a measure of latitude. 8. Against this stand the benefits of reducing noise pollution on the street and in the neighbourhood. This limitation therefore goes to the permitted forms of expression on city streets.Abortion law in CC which restricted abortions.Not included Security of the person . although not necessarily in violation of principles of fundamental justice (Cunningham) . 7. and need not conform to the principles of fundamental justice . however. Amplified noise emitted into the street may interfere with the activities of people using the street and the buildings around it. 1 of the Canadian Charter. but held there was no violation of principles of fundamental justice (Canadian Foundation for Children) . the majority in Blencoe said liberty also deals with a person’s ability to make fundamental personal choices  Economic liberty .

from a substantive point of view.Security protects psychological integrity (New Brunswick) and protects against state induced psychological stress.ca . and therefore a basis for finding a law which affects life. unbiased adjudication).Lamer J in BC Motor Vehicle Reference gave 3 reasons for extending fundamental justice beyond procedure. it is a PoFJ that a law cannot be arbitrary) .A law is arbitrary “if it lacks a real connection on the facts to the purpose the law is said to serve” .In R v Malmo-Levine. it was not fundamental to the legal system Four ways of demonstrating that PoFJ have been violated Overbroad laws .This is a vague definition. it was argued that a PoFJ was “the best interests of the child”. which are rules of procedure (e.And if you conclude that there is overbreadth and.In fact. . requirement of a hearing.e. the Court postulated 3 requirements for a rule to qualify as a “basic tenant of the legal system and therefore a principle of fundamental justice”: (1) The rule must be a legal principle (2) There must be significant societal consensus that it is fundamental to the way in which the legal system ought to fairly operate (3) The rule must be capable of being identified with sufficient precision to yield to a manageable standard . Sopinka J said that principles of fundamental justice must be “fundamental in the sense that they would have general acceptance among reasonable people” [But how does this reflect the basic tenants of our legal system?] . So. therefore. it will take another case to determine whether they are in breach of the Canadian Charter] . whether the law is grossly disproportionate to the state interest Arbitrary laws . The SCC upheld the 3 requirements above.E. some cases do not even rely on the “basic tenets of our legal system” definition (see Cunningham.Later decisions indicate that there is little agreement as to what the basic tenets of our legal system are .g. He successfully completed all of the NCA requirements in the January.An arbitrary law offends PoFJ (Chaoulli) (i.The term “fundamental justice” covers substantive as well as procedural justice (BC Motor Vehicle Reference) . it is a PoFJ that a law cannot be overly broad) . which doesn’t use the phrase “fundamental justice”. and that is the result is indeterminacy [Note: there are a number of times in this chapter where this issue comes up – keep an eye out for it] . it was said that “the principles of fundamental justice are said to be found in the basic tenets of the legal system” .In Rodriguez.e.Test: (1) Whether a law pursues a legitimate state interest? (2) If yes to one.For tutoring on this subject by the person who created these notes..This is unlike how the term was used in the Canadian Bill of Rights.Overbreadth is a breach of the PoFJ. the legislative history of s 7 makes clear that the framers thought that “fundamental justice” meant natural justice . in Canadian Foundation for Children. it was used as an equivalent of “natural justice”. 2010 sitting.Further.There are practical and theoretical difficulties with this doctrine though (e. then law will almost necessarily fail the s 1 analysis as well. which had the effect of putting life’s at risk (Chaoulli) [Note: Majority found this breached Quebec Charter.Disproportionality is a breach of the principles of fundamental justice. In that context.g.Law which forbid the purchase of private health insurance was said to infringe security of person. liberty or security of the person (i.captan@utoronto.There is a problem with moving to substantive justice. There.See Hogg book for analysis of whether “substantive” fundamental justice is a good choice  Definition of fundamental justice . liberty or security of persons unconstitutional (i. because it will fail minimum impairment test .e it is a principle of fundamental justice that a law cannot be disproportionate in its effect) (Malmo-Levine) . or e-mail him @ andrew.e the residual theory) . One of his reasons was controversial (i.Security includes control over one’s body (Rodriguez – assisted suicide case) . the courts would not be entitled to review the substantive justice of the deprivation . the change in the law strikes the right balance between the accused’s interests and the interests of society” . but later decisions haven’t done much better. a breach of PoFJ. and therefore a basis for a finding of unconstitutionality in a law that affects life. where it was said in relation to fundamental justice: “The question is whether. because it ultimately led to delays in treatment.The variety of outcomes re: scope of PoFJ can be accounted for only by the enormous discretion that the SCC has assumed for itself under the rubric of fundamental justice (indeterminacy issue) . a judge who disapproves of a law will always be able it find that it is overbroad) Disproportionate laws . such as where there has been excessive delay caused by admin tribunals (Blencoe) Fundamental justice  Procedure and substance .g. [Note: Toronto and surrounding area only] . and said that although “best interests” is a legal principle.In BC Motor Vehicle. call Andrew @ (647) 878-6355.

and perhaps the appropriate test . (2) Is there a limitation of enforcement discretion? Other things to consider re: s 7 Absolute and strict liability  Absolute liability offences .At trial. and the review process did not satisfy the PoFJ because it didn’t provide the named person with a fair hearing  Full answer and defence .SCC reviewed a radical departure from the traditional trial format in Charkaoui v Canada. was required to ensure the confidentiality of the information on which the certificate was based. After the issue of a security certificate. Fundamental justice is satisfied if there is a defence of reasonable care (due diligence).Extradition process must be conducted in accordance w/ PoFJ because obviously there is a denial of the liberty of the accused . R v Hess) .Before an accused be found guilty of murder. on review.ask whether the law upholds the two values which the rule against vagueness is supposed to protect: (1) Is there fair notice to citizens?. and its dependence on the moral attitudes of the judges Unforeseen consequences .There are tests set out in Nova Scotia Pharmaceutical.In the case of a regulatory offence or a public welfare offence. s 7 contains a residue of the right to silence and supplements s 11(c) and 13 which explicitly guarantee this right Fair Trial  The right to a fair trial .The law related to strict liability offences was apparently settled in Wholesale Travel . more simply.Subjective foreseeability is required.S 7 is wider than s 11(d).The requirement of voluntariness is a basic tenet of the legal system that is protected by s 7 (i. or e-mail him @ andrew. s 7 requires that there be mens rea with respect to the death (Vaillancourt – the “felony murder rule is unconstitutional) .ca .Principles of fundamental justice require that the accused of a crime receive a fair trial . because it applies to civil and administrative proceedings where they affect life. is it a breach of fundamental justice to make an unintended and unforeseen consequence the basis of a more serious charge? What mens rea elements are required by such an offence? .Absolute liability + no imprisonment + fine = OK (Pontes)  Strict liability offences . How then did it suddenly become a basic tenet of the legal system? This points to the indeterminacy of the doctrine of substantive fundamental justice. fundamental justice does not require that mens rea be an element of the offence. It was held that the issue of the certificate was a deprivation of liberty under s 7.Law in these areas. is still very unclear Murder . call Andrew @ (647) 878-6355. [Note: Toronto and surrounding area only] Vague laws  Void for vagueness . though.Pre trial right to silence evidenced in Herberty and Broyles . more specifically (R v Martineau). liberty or security of person .There are some Code offences in which the consequences of an unlawful act dictate the severity of the punishment for which the accused is liable. and any attempt by Parliament to abolish the defence or restrict its availability would be unconstitutional.captan@utoronto. the Federal Court judge. which causes a breach of s 7 if the law is a deprivation of life. R v Hundal. The most useful is the “legal debate” test (namely whether the rule can be subject to reasonable legal debate) . unless the limiting law could be justified under s 1  Duress .R v Ruzic held that the immediacy and presence requirements of s 17 were unconstitutional because they had the potential of convicting a person who had not acted voluntarily  Intoxication Right to silence .Or.For tutoring on this subject by the person who created these notes.Absolute liability + imprisonment = offends PoFJ (BC Motor Vehicle Reference.A vague law violates the principles of fundamental justice. R v Creighton Involuntary acts  Automatism . He successfully completed all of the NCA requirements in the January. at least for offences carrying the penalty of imprisonment.Right to silence a PoFJ (Herbert) . it is a PoFJ that criminal offences be committed voluntarily). and the burden of satisfying this defence may be cast on the D . it is a PoFJ that a law cannot be vague)  Standard of precision . But dissent pointed out that subjective foresight of death has never been the exclusive standard for murder in Canada or in other countries that have inherited English principles of criminal law.See R v DeSousa.e. 2010 sitting.e. liberty or security of person (i. This means that the law respecting automatism now has constitutional status.

7 B. in circumstances where the government is failing to deliver health care in a reasonable manner. prohibiting health insurance that would permit ordinary Canadians to access health care. [Note: Toronto and surrounding area only] . it requires that the hearing be before an independent and impartial magistrate.g. C’s argument was that if people were allowed to buy private insurance. It comprises the right to a hearing. thereby increasing the risk of complications and death.A law is arbitrary where “it bears no relation to.The access to private records in the possession of third parties could be necessary to an accsued’s right to make full answer and defence.ca .Thus.e physical security of the person). in Rodriguez v. . Must engage in a balancing between full answer and defence and privacy/equality rights of the other (see O’conner case)  Preservation of evidence . the TJ found no violation of s 7.The principle of fundamental justice implicated in this case is that laws that affect the life. or e-mail him @ andrew. and can’t be saved under s 1 Section 7 Analysis A. 2010 sitting.The jurisprudence of this Court holds that delays in obtaining medical treatment which affect patients physically and psychologically trigger the protection of s. Coming to that conclusion. 7 of the Charter (e. Mr Z. liberty or security of the person shall not be arbitrary (see Malmo-Levine. interferes with life and security of the person as protected by s. liberty or security of the person? . The prohibition against private insurance in this case results in psychological and emotional stress and a loss of control by an individual over her own health. To determine whether this is the case.Based on evidence in front of the TJ.For tutoring on this subject by the person who created these notes. courts allowed him to represent individuals who might be in a situation where long wait for treatment may be caused by systemic factors At the trial level.S 7 (in addition to the main s of 11(d)) guarantees the accused the right to present a full answer and defence (R v Seaboyer)  Pre-trial disclosure . There was an infringement of security of person. but. although had to wait a long time for treatment. Rodriguez) . e. and it entails the right to know the case put against one. that would make his business more viable (b/c most people cannot pay out of pocket). liberty or security is at stake (This basic principle has a number of facets. control over one’s bodily integrity free from state interference and freedom from state-imposed psychological and emotional stress” (pp. .Pre-trial disclosure by the Crown of all information relevant to the conduct of the defence is a constitutional obligation. or is inconsistent with. court was divided McLachlin CJ and Major J (Bastarache J concurring): . analysed large amount of evidence. call Andrew @ (647) 878-6355. entailed by the accused’s right to make full answer and defence  Pre-trial disclosure by 3rd parties . Patient. but that was in accordance w/ principles of fundamental justice. British Columbia. Decision was upheld by CoA. Morgentaler) . In SCC. . the detention or the conditions must be accompanied by a meaningful process of ongoing review (Charkaoui) Chaoulli v Quebec FACTS: Appellants are Zeliotis and Chaoulli.The Crown is under a duty to preserve relevant evidence once it comes into the possession or control of the Crown A list of principles of fundamental justice (not exhaustive) (i) Fair judicial process/trial for individuals whose life. Mr Z.They first cite expert evidence of how delays in treatment can lead to physical harm (i. Martineau) (viii) Criminal offences must be committed voluntarily (ix) Where a person is detained or is subject to onerous conditions of release for an extended period under immigration law. He successfully completed all of the NCA requirements in the January. majority held that security of the person encompasses “a notion of personal autonomy involving. 587-88). Interference is arbitrary if it lacks a real connection on the facts to the purpose of the interference.captan@utoronto. the objective that lies behind [it]”. it demands a decision by the magistrate on the facts and the law. Deprivation in accordance with principles of fundamental justice? . Deprivation of life. the wait time problem in the public system wasn’t the cause of his particular delay (so not the best representative P). C is a physician whose primary motivation was to get involved in private sector. and the right to answer that case) (Charkaoui) (ii) A law cannot be arbitrary (Chaoulli) (iii) A law cannot be disproportionate in its effect (iv) A law cannot be overly broad (v) A law cannot be vague (vi) Certain criminal offences must carry a constitutional requirement of subjective mens rea (see.Also. . involved in an unusual manner. impugned provisions are arbitrary. but Qbc would not permit him to buy private health care insurance that would duplicate the public.Agrees with Deschamps J conclusion that the prohibition violates s 1 of the Qbc Charter and violates s 7 of the Canadian Charter.g. it is necessary to consider the state interest and societal concerns that the provision is meant to reflect: Rodriguez. and adverse psychological effects which they say engages 7. at the very least.

The evidence called in this case falls short of demonstrating such justification.Unable to agree with our four colleagues . and Major J.Further. . the difficulty encountered by the claimants is that they are unable to demonstrate any principle of fundamental justice that has been contravened . that the Quebec Health Plan puts the “liberty” of Quebeckers at risk. This is not to say that every encounter with a waiting list will trigger the application of s. 2010 sitting. Motor Vehicle Act. The interference with one’s mental well-being must not be trivial B. liberty and security of person . We do not agree with the appellants. An arbitrary provision will likely never meet the rational connection test. The physical and psychological suffering and risk of death that may result outweigh whatever benefit (and none has been demonstrated to us here) there may be to the system as a whole. [Note: Toronto and surrounding area only] . we must now consider whether that breach can be justified under s.What are constitutionally required "reasonable health services"? What is treatment "within a reasonable time"? What are the benchmarks? How short a waiting list is short enough? How many MRIs does the Constitution require? The majority does not tell us.But the evidence at trial of experience of other countries suggests that there is no real connection in fact between prohibition of health insurance and the goal of a quality public health system. which we agree is a principal of fund justice.“The evidence on the experience of other western democracies refutes the government's theoretical contention that a prohibition on private insurance is linked to maintaining quality public health care” Section 1 Analysis . call Andrew @ (647) 878-6355. The majority lays down no manageable constitutional standard . But. Finally. Our colleagues McLachlin C.The courts can use s. argue that Quebec’s enforcement of a single-tier health plan meets this legal test because it is “arbitrary”. with respect.Which s 7 interests are engaged? We accept finding that at least in some cases the prohibition will put at risk the life or security of the person. the more difficult it will be for a claimant to make that essential link . .J. Life.Having concluded that the prohibition on private health insurance constitutes a breach of s. or e-mail him @ andrew. 1 of the Charter as a reasonable limit demonstrably justified in a free and democratic society. .The government has an interest in protecting the public health regime. He successfully completed all of the NCA requirements in the January. . In our view. The further a challenged state action lies from the traditional adjudicative context. . There is no “societal consensus” about what it means or how to achieve it.Also. the denial of access to timely and effective medical care to those in need is not proportionate to the beneficial effects of the prohibition on private insurance to the health system as a whole. given the absence of evidence that the prohibition on the purchase of private health insurance protects the health care system. .Finally. however.Is the interference necessary to providing effective health care under the public system? .captan@utoronto. . This does not mean that the courts are well placed to perform the required surgery . Binnie and Lebel JJ (Dissenting): .The formal requirements for a principle of fundamental justice are threefold: (1) It must be a legal principle. (2) The reasonable person must regard it as vital to our societal notion of justice. the prohibition against private health insurance is a rational consequence of Quebec’s commitment to the goals and objectives of the Canada Health Act. 7 of the Canadian Charter to pre-empt the ongoing public debate only if the current health plan violates an established “principle of fundamental justice”. The prohibition goes further than necessary to protect the public system – it is not minimally impairing it.For tutoring on this subject by the person who created these notes. 7. Chief Justice and Major J take view that a law which arbitrarily violates life/security is unconstitutional. which was in the criminal law context. it must count among the basic tenets of our legal system: Re B. 7.The real control over the scope and operation of s. the benefits of the prohibition do not outweigh the deleterious effects. 7 is to be found in the requirement that the applicant identify a violation of a principle of fundamental justice.The CJ and Major J principally relied on Morgantaler. which implies societal consensus.The evidence certainly established that the public health care system put in place to implement this policy has serious and persistent problems.ca . It cannot be “identified with precision”. it’s difficult to predict when provisions will be “reasonable” or “unreasonable” when implementing a health plan .While in some cases some Quebeckers may have their security put at risk due to this prohibition. the aim of “health care of a reasonable standard within a reasonable time” is not a legal principle.For a principle to be one of fundamental justice. Prohibiting citizens from obtaining private health care may leave people no choice but to accept excessive delays in the public system. (3) It must be capable of being identified with precision and applied in a manner that yields predictable results.The government argues that the interference with security of the person caused by denying people the right to purchase private health insurance is necessary to providing effective health care under the public health system. Principles of fundamental justice . the rational connection between the prohibition and the objects is not made out.C. But. far removed from the debate over a two tiered health system Charter Analysis A. but we disagree how it applies to this case .

or e-mail him @ andrew. Of course. Does the procedure under the IRPA for determining the reasonableness of the certificate infringe s.ca . they analysed evidence from other countries and jurisdictions to show that there is no real connection between prohibition of health insurance and the goal of public health system • Criticisms? o McLachlin and Major conclude from evidence from other jurisdictions that it may not be necessary to prohibit private insurance in order to ensure effectiveness of the public. including lower level courts. (2) What is the relationship between the state interest and the prohibition against the relevant conduct? (3) Have the appellants established that the prohibition bears no relation to the state interest? .captan@utoronto.  • Charkaoui v Canada (Minister of Citizenship and Immigration) FACTS: C applied for a stay of proceedings relating to the security certificate issued against him under s 77 of the Immigration and Refugee Protection Act. Maybe we should deal w/ findings of fact in this type of case differently than in a typical criminal/civil matter. Here. Prohibition of private health insurance is directly related to Quebec’s interest in promoting a need-based system and in ensuring its viability and efficiency.. which is not arbitrary. no evidence to rely on to justify the conclusion that the infringement of the right to life.  One possible justification for doing so is that this is a unique. The only majority we have is on the Quebec Charter • One thing on which Court agreed was that security of person and right to life had been violated due to prolonged wait times. and deference is due to her view of that evidence . [Note: Toronto and surrounding area only] .g. the SCC may have been justified in sifting through it. In coming to this conclusion. liberty and security results from public system having longer wait times. and in particular the guarantees in the Canadian Charter of Rights and Freedoms that protect against unjustifiable intrusions on liberty. where jurisdictions that permit private insurance (duplicate model).For tutoring on this subject by the person who created these notes. or that the connection is “arbitrary”.Appellants have not established that the prohibition bears no relation to. they contested findings of fact of the TJ. in a process that may deprive the person named in the certificate of some or all of the information on the basis of which the certificate was issued or the detention ordered ISSUE: Whether the solution that Parliament has enacted conforms to the Constitution.We note that our colleagues refer to the evidence before the trial judge rather than the view taken of that evidence by the trial judge. just b/c not essential. however. is the infringement justified under s.We agree with the conclusion of the trial judge and the Quebec Court of Appeal that in light of the legislative objectives of the Canada Health Act it is not “arbitrary” for Quebec to discourage the growth of private sector health care. equality and the freedom from arbitrary detention and from cruel and unusual treatment REASONING: 1. 7 of the Charter. if you consider we the rationale for giving deference to TJ on findings of fact. Prohibition of private insurance is not “inconsistent” with the state interest. but there is no analysis of this test. evidence suggests that weight times are just as bad. b/c it is directly related to Qbc’s interest in promoting a need-based system and ensuring its viability/efficiency. He alleged that the government breached a duty to disclose info in its possession in a timely way. was that these were violated. Discourage growth of private sector. (2) McLachlin CJ and Major J held violation (3) Binnie and LeBel JJ held no • McLachlin CJ and Major JJ: The basis for the violation was that the there was no connection b/w the legislative provision and the purported objective of improving the quality of public health service.  Third. call Andrew @ (647) 878-6355. and if so. . 2010 sitting. e. it is the process of being able to test evidence. or is inconsistent with the state interest. This was accepted by all judgments. • No majority on analysis of the violation of principles of fundamental justice: (1) Deschamps J analysis of the equivalent provision which deals with security of person and right to life does not have a fundamental justice principle requirement.Inconsistent” means that the law logically contradicts its objectives .. Is it enough to say that this means that its arbitrary (no connection) (ie. b/c broad questions of public policy/lots of evidence published/lots contested. The certificate and the detention are both subject to review by a judge. Charter cases which has potential for impacting lives of many Canadians. there might be a worry about picking and choosing evidence which fits their intended argument. still less is it “unrelated” to it COMMENT: Note these points: • This case doesn’t decide anything outside the province of Quebec. Some of the findings the SCC relied on there was no evidence for. then a judge determines whether this is reasonable. does it follow that it’s arbitrary?) o Dealing with findings of fact: Appellate courts are normally expected to dealt with findings of fact on the basis that they are not to be contested unless there is an overriding and palpable error.  Second. 1 of the Charter? (a) Is s 7 of the Charter engaged and violated? . The process of this is that the Minister has the ability to sign a certificate declaring that a foreign national/permanent resident is inadmissible to enter or remain in Canada on grounds of necessity. He successfully completed all of the NCA requirements in the January.Approach the arbitrariness issue in 3 steps: (1) What is the state interest sought to be protected?. But maybe this type of social-scientific evidence was testable by comparing/contrasting it to evidence available to the judges. But they say that there is “no real connection”. In fact. The trial judge reached a contrary conclusion on the facts.

and an opportunity to meet the case. Second is the concern that the designated judge functions as an investigative officer rather than a judge (this would violate PoFJ). 7 of the Charter”. Violations of the principles of fundamental justice.These principles include a guarantee of procedural fairness. It comprises the right to a hearing. it must accord them a fair judicial process. But the named person is not given the disclosure and the right to participate in the proceedings that characterize the adversarial process. Fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet. The IRPA process at issue seeks to meet this requirement by placing material before the judge for evaluation. 2010 sitting. each of them must be met in substance. And it entails the right to know the case put against one. at the end of the day. First is the concern that the IRPA may be perceived to deprive the judge of his or her independent judicial role and co-opt the judge as an agent of the executive branch of government.Therefore. may be obliged — perhaps unknowingly — to make the required decision based on only part of the relevant evidence. It requires that the hearing be before an independent and impartial magistrate. found at Division 9 of Part 1 of the IRPA. makes it difficult. and be permitted to respond to that case.Is the “case to meet” principle satisfied? Last but not least. . and this leads directly to the question whether the IRPA’s impingement on these interests conforms to the principles of fundamental justice — the basic principles that underlie our notions of justice and fair process. 7 of the Charter.Is the decision based on the facts and the law? To comply with s. indeed chilling. liberty and security — if it can establish that the limits are demonstrably justifiable in a free and democratic society . the IRPA process is designed to preserve the independence and impartiality of the designated judge. But for s. the greater the need for procedural protections to meet the requirements of fundamental justice under s. The state is permitted to limit rights — including the s. 7 are not easily saved by s. This principle has NOT been satisfied. clearly deprive detainees such as the appellants of their LIBERTY. consequences for the detainee. a fair hearing requires that the affected person be informed of the case against him or her. having regard to the circumstances and consequences of the intrusion on life.In the instant case. but a fair process having regard to the nature of the proceedings and the interests at stake: United States of America v. The certificate process may lead to removal from Canada. Under the IRPA’s certificate scheme. to a place where his or her life or freedom would be threatened . despite his or her best efforts to get all the relevant evidence. It demands a decision by the magistrate on the facts and the law. “[t]he greater the effect on the life of the individual by the decision. . the judge sees all the material relied on by the government. the named person may be deprived of access to some or all of the information put against him or her.Is the judge independent and impartial? The circumstances may give rise to a perception that the designated judge under the IRPA may not be entirely independent and impartial as between the state and the person named in the certificate (e.The detainee’s SECURITY may be further affected in various ways. the judge cannot share this material with the named person).The provisions at issue.The Charter does not guarantee rights absolutely. 7. the named person may not be in a position to contradict errors. substitutes for full disclosure may permit compliance with s. “factual situations which are closer or analogous to criminal proceedings will merit greater vigilance by the courts . (b) Is the limit justified under s 1? . The result is a concern that the designated judge. are difficult to justify under s. .Violations of s. on its face.Nonetheless.ca .g. 7. 1 . 7 of the Charter. which would deny the person the ability to know the case to meet.Section 7 of the Charter requires not a particular type of process. identify omissions. call Andrew @ (647) 878-6355. whose role includes compensating for the fact that the named person may not have access to material and may not be present at the hearing. as required by s.The individual interests at stake suggest that s. 7 of the Charter. apply the Oakes test: (a) Pressing and substantial objective? The protection of Canada’s national security and related intelligence sources undoubtedly constitutes a pressing and substantial objective (b) Proportionality assessment: . the purpose of which is to protect the life. Three related concerns arise with respect to independence and impartiality. He successfully completed all of the NCA requirements in the January. . Without this information. The result is that. When reviewing the certificate. Thus. Ferras. . Precisely how these requirements are met will vary with the context. In some contexts. But if the government claims confidentiality for certain material. [Note: Toronto and surrounding area only] . specifically the right to a fair hearing. is engaged. This basic principle has a number of facets. it is a context that may have important. . As this Court stated in Suresh. 1 (Re BC Motor Vehicle Act). or e-mail him @ andrew. .captan@utoronto. 7 guarantee of life.For tutoring on this subject by the person who created these notes. IRPA’s procedure for determining whether a certificate is reasonable does not conform to the principles of fundamental justice as embodied in s. will become associated with this person’s case. liberty and security of the person. liberty or security . if not impossible. I conclude that. 7 of the Charter. Third is the concern that the judge. BUT in the context of national security. 7 to be satisfied. one cannot be sure that the judge has been exposed to the whole factual picture. to find substitute procedures that will satisfy s. which may be extensive. the context is the detention. the magistrate must make a decision based on the facts and the law.The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time. The issue is whether the process is fundamentally unfair to the affected person. and the right to answer that case. because the person named in a certificate can face detention pending the outcome of the proceedings. challenge the credibility of informants or refute false allegations. non-disclosure. coupled with the grave intrusions on liberty imposed on a detainee.

that length of time. since the indefiniteness of detention. 7 or s. or least restrictive. colour. bearing in mind the deference that is owed to Parliament in its legislative choices. is related to the mechanisms available to the detainee to regain liberty. He successfully completed all of the NCA requirements in the January. while substantive equality prohibits both direct and indirect discrimination  Discrimination . age or mental or physical disability (these are enumerated grounds) 15 (2): “Subsection (1) does not preclude any law. interpreted in conformity with the Charter. if so. as well as the psychological stress it may cause. religion. which would better protect detained individuals’ interests. special counsel. minimal impairment to the rights of non citizens? There are other methods Parliament could have chosen to protect security that are less intrusive (e. and (e) the existence of alternatives to detention [Each factor will either weigh in favour of or against release] . Parliament is not required to use the perfect. the alternatives discussed demonstrate that the IRPA does not minimally impair the named person’s rights. (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and. 2.I conclude that the s.captan@utoronto.It is clear that while the IRPA in principle imposes detention only pending deportation. colour. the IRPA’s provisions regarding the non-disclosure of evidence at certificate hearings are rationally connected to this objective (ii) Minimum impairment? i.Formal equality merely prohibits direct discrimination (which is insufficient).ca . 7 and 12 of the Charter if accompanied by a process that provides regular opportunities for review of detention. 7 considerations. it may in fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release conditions. religion.The reason for having 4 formulations of the idea of equality was to reverse the restrictive interpretations placed by the SCC on the phrase “equality before the law” which is in the Bill of Rights  Similarly situated test . the detention or the conditions must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case. Chaulk. alternative to achieve its objective: R.15 (1): “ Every individual is equal before and under the law. On this basis. (b) the length of time in detention. Does the Detention of Permanent Residents or Foreign Nationals Under the IRPA Infringe Section 7? . I conclude that extended periods of detention pending deportation under the certificate provisions of the IRPA do not violate s.I conclude that extended periods of detention under the certificate provisions of the IRPA do not violate ss.Equality in s 15 is expressed in four different ways: (1) equality before the law (2) equality under the law (3) equal protection of the law and (4) equal benefit of the law. where a person is detained or is subject to onerous conditions of release for an extended period under immigration law. which started to develop rules to control the floodgates.s. 7 principles of fundamental justice and the s. but it is deficient and no longer used  Formal and substantive equality . national or ethnic origin. sex.Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual . 12 issue of cruel and unusual treatment is intertwined with s.Do the provisions for review of detention under the IRPA’s certificate scheme satisfy these requirements? The IRPA. Is a certificate procedure leading to detention and deportation of non-citizens on the ground that they pose a threat to Canada’s security.e. and a current example is the Canada Evidence Act). has the right to equal protection and equal benefit of the law without discrimination. 12 based on the applicable legal principles.g. permits robust ongoing judicial review of the continued need for and justice of the detainee’s detention pending deportation. Detention itself is never pleasant. Equality  Four equalities of s 15 . call Andrew @ (647) 878-6355. . 12 of the Charter [9] EQUALITY: s 15 . but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment . . without discrimination based on race. or e-mail him @ andrew. (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned. However. including the following: (a) the reason for detention. and in particular. [Note: Toronto and surrounding area only] (i) Rational connection? Moreover.Then came the Andrews case. The next question is whether this violates s. taking into account all relevant factors. 7 or s. 2010 sitting. . . age or mental or physical disability. national or ethnic origin.This was an old test used. Of course.The s.Early application of s 15 resulted in an overload of cases being brought to the court challenging on equality ground . 12 guarantee of freedom from cruel and unusual treatment require that.For tutoring on this subject by the person who created these notes. sex. v. 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.

(iii) Sexual orientation (Egan v Canada) [So far.The following are NOT analogous grounds: place of residence (Turpin). whether by withholding a benefit that is granted to the comparator group. because each can be chosen by an individual.The SCC held that s 15 was a prohibition of “discrimination”.ca . persons charged w/ war crimes (Finta). .Remember. AND (2) The disadvantage is based on a ground listed in or analogous to a ground listed in s 15.And it is relevant to the human dignity analysis (Law v Canada) (2) ENUMERATED OR ANALOGOUS GROUNDS: The distinction is on the basis of a listed or analogous ground . and the SCC has settled that the following amounts to discrimination: (1) The challenged law imposed (directly or indirectly) on the claimant a disadvantage (in the form of a burden or withheld benefit) in comparison to other comparable persons. Elements of s 15 (Andrews.The limitation of s 15 to listed and analogous grounds restricts judicial review to laws that distinguish between individuals on the basis of their inherent (or immutable) attributes as opposed to their behaviour (which are not subject to change except at significant cost) (Corbiere v Can. national or ethnic origin.So it is now clear that s 15 prohibits only those violations of equality that amount to discrimination. religion. Hogg.The burden then shifts to the government to justify the discrimination under s 1 . in Andrews. it is necessary to compare the treatment provided by the law to the claimant with the treatment provided to the comparator group. sex.Analogous grounds include: (i) Citizenship (Andrews).How do you measure disadvantage? Some cases have involved a subjective analysis (from the claimant’s standpoint). 2010 sitting. in (1) above. is the claim of disadvantage or unequal treatment made out . (Andrews) AND (3) The disadvantage is imposed in a way that impairs human dignity (Law v Canada) . or by imposing a burden that is not applicable to the comparator group.For tutoring on this subject by the person who created these notes. so (1) and (2) are not necessarily strictly separate stages . is the disadvantaged netted out by the advantage? (Thibaudeau) . and others have involved an objective (from the court’s standpoint) analysis. (Andrews). suggests that the assessment is to take place from the perspective of a reasonable person (objective).E. or e-mail him @ andrew. (ii) Marital status (Nova Scotia v Walsh) [These two analogous grounds can be considered “soft” analogous grounds. age or mental or physical disability .Note that. call Andrew @ (647) 878-6355.) An analogous ground is based on “a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity (3) DISADVANTAGE AND HUMAN DIGNITY: Does the disadvantage impair claimant’s human dignity . Egan v Canada) .g. Only if the law treats the claimant less favourably. the comparative group was citizen lawyers (vs non-citizen lawyers)  Requirement of disadvantage (step 2) .The definition of the comparator group is critical to the outcome of s 15 cases.  Group disadvantage .Being part of a disadvantaged group is not a prerequisite to finding discrimination.Any disadvantage imposed on the claimant group must be netted out (or considered together with) any advantage granted to the claimant group. occupation (Re Workers Comp).Find the group that shares with the claimant all the characteristics that qualify for the benefit (or burden). relying on Can Foundation for Children case. although that choice is sometimes blocked by legal requirements.Once the appropriate comparator group has been selected.captan@utoronto. . although it is an indication of an analogous group (Miron v Trudel. Discrimination is the operative concept. persons bringing claim against Crown (Rudolph) . colour. the conclusion drawn on a s 15 analysis is whether or not there is DISCRIMINATION. and that discrimination could only be based on a ground that was listed in s 15 or that was analogous to those listed in the section . these are the only analogous grounds to be recognized] (iv) Off reserve status Indians (Corbiere) .A claimant who persuades the Court of these 3 elements is entitled to a finding of discrimination. which means that the challenged law is in breach of s 15. you will have to mention this ground. but one who shares attributes and circumstances of the claimant (subjective) – so a modified objective test. [Note: Toronto and surrounding area only] . He successfully completed all of the NCA requirements in the January. Law) (1) DISADVANTAGEOUS DISTINCTION: does the challenged law impose (directly/indirectly) a disadvantage on the claimant (in the form of a burden or benefit withheld) in comparison to other comparable persons?  Selection of comparator group (step 1) . except for a personal characteristic that is listed in or analogous to those listed in s 15 .Listed grounds include: race.The requirement that the discrimination be in relation to a listed or analogous ground was stated in Andrews .

evaluate not only the economic but also the constitutional and societal significance attributed to the interest or interests adversely affected by the legislation in question. 2010 sitting. stereotyping. . . that the SCC in Kapp (obiter) opted to remove the human dignity requirement.e. then this indicates a s 15 infringement (2) The correspondence between the distinction and the claimant’s characteristics or circumstances (sometimes legislation must make distinctions in order to account for personal characteristics (i. APPLY A MODIFIED OBJECTIVE TEST). the more likely that the distinction responsible for these consequences is discriminatory within the meaning of s. who could be expected to be more successful in finding and retaining employment than older spouses) (3) The existence of ameliorative purposes or effects on other groups: This factor is more relevant where the s. because obiter remarks of the SCC are not binding on the SCC) The law on the listed and analogous grounds Race .THE POINT IN THE DIGNITY ANALYSIS IS TO ASK WHETHER from the perspective of a reasonable person in circumstances similar to those of the claimant who takes into account the contextual factors relevant to the claim (i. however. 15(1) claim is brought by a more advantaged member of society (e. Older surviving spouses.ca . the denial of CPP survivor benefits to spouses under the age of 35 accurately corresponded to the circumstances of younger spouses of deceased income earners.g.“Race” as well as “national or ethnic origin” and “colour” are grounds of discrimination expressly prohibited by s 15 . but as a way of focussing on the central concern of s 15 – combating discrimination . are more economically vulnerable to the long-term effects of the death of a spouse) i.e.For tutoring on this subject by the person who created these notes.Law v Canada identifies 4 contextual factors to analyse when determining whether there was an impairment of human dignity: (1) The existence of pre-existing disadvantage. the legislative imposition of differential treatment has the effect of demeaning his or her dignity . (4) The nature of the interest affected: The more severe and localized the consequences on the affected group. namely the perpetuation of disadvantage or stereotyping. like surviving spouses who are disabled or who care for dependent children. An ameliorative pupose will likely not violate the dignity of more advantaged individuals that are excluded from the law's scope where the purpose accords with the purpose of section 15(1) itself and corresponds to the needs and circumstances of the disadvantaged group targeted by the legislation.There are 4 contextual factors used to determine whether or not human dignity is impaired by a law that imposes a disadvantage on the basis of a listed or analogous ground. Eldridge and disability benefits re: health care) (e.captan@utoronto. In Law.The contextual approach should not be read literally as if they were legislative dispositions. He successfully completed all of the NCA requirements in the January.The 4 factor contextual approach is still relevant: (1) Pre existing disadvantage (3) Ameliorative purpose (4) Nature of interest affected [The above 3 factors go to perpetuation of disadvantage] (2) Correspondence [This factor goes to “stereotyping”] .Note. 1867) Religion . prejudice or vulnerability: If the law promotes stereotype. unless it falls under s 15(2) . call Andrew @ (647) 878-6355.But human dignity analysis is still good law. [Note: Toronto and surrounding area only] .The aboriginal situation in Canada is a special one (see s 25 of Charter and s 91(24) of Constitution Act.The correspondence factor has become the KEY to the impairment of human dignity .g.It is difficult to imagine a situation in which a racial distinction could possibly be upheld. . or e-mail him @ andrew. the SCC held that a factor supporting the view that the impugned CPP provisions do not violate essential human dignity is the clear ameliorative purpose of the pension scheme for older surviving spouses. and replaced it with a “discrimination” requirement. 15 of the Charter”. in Law..

For tutoring on this subject by the person who created these notes. call Andrew @ (647) 878-6355.Marital status is not a ground of discrimination that is expressly mentioned in s 15.In Nova Scotia v Martin the SCC struck down provisions of a statutory worker’s comp scheme that dealt w/ chronic pain. indirect and may require reasonable accommodation. The Court distinguished McKinney on 3 grounds (see p 1246) Mental or physical disability . there was an issue as to applicability of Charter]. on the basis that since the prohibited act (intercourse) was defined by reference to penetration. indicating that deference should be paid to a legislated effort to accommodate such needs.It is an analogous ground (Egan v Canada) . and therefore amounted to discrimination. Although there was a distinction on age. Held: while there was a distinction on the basis of age. there was no impairment of human dignity. and could not be justified by s 1. 2010 sitting. In regulating the citizenship status of persons born outside Canada before 1977.But this pattern of deference was broken in Nova Scotia v Martin --.Brenner v Canada: A provision of the Federal Citizenship Act distinguished between men and women and was struck down under s 15.Another ground of discrimination that is expressly prohibited . it provided a 4 week rehab period for worker suffering from chronic pain. was in breach of s 15. the rules that discrimination may be unintended. failing on the rational connection test. Sexual orientation .There are a few other examples too Age . . but in Miron v Trudel the SCC held it to be an analogous ground. (ii) Another difference b/w age and other named characteristics is that there is some relationship between age and ability . for example. Therefore. the constitutional challenge to the appropriateness of the accommodation failed.Mental or physical disability is another of the grounds of discrimination that is expressly prohibited by s 15 .Another ground of discrimination that is expressly prohibited .Citizenship is not a ground of discrimination expressly mentioned in s 15. The exclusion of persons under 35 from the benefit scheme did not imply that they were less capable or less worthy. therefore a breach of s 15. But see Tetreault-Gadoury v Canada: A provision of the Unemployment Insurance Act.The SCC also decided a group of mandatory retirement cases.The funding of the schools of a religious denomination without comparable provision for the supports of the schools of other religious denominations would be forbidden by s 15.captan@utoronto. where an accommodation had been made to the special needs of a class of persons with disabilities).ca .Gosselin v Quebec: Quebec’s social assistance law provided that welfare recipients under 30 received benefits of only about 1/3 of the standard amount that was payable to persons 30 or over. (iii) The distinction impaired human dignity of chronic pain suffers. but a person born to a Canadian mother had to apply for citizenship and undergo a security check. to function effectively.But Hogg disagrees with the approach the Court took in this case – suggests more deference should had been paid to legislative decision .In several of the “accommodation” cases (i. are of special importance here . even though members of the comparison group were also disabled. there was no impairment of human dignity. . or e-mail him @ andrew. But justifiable under s 1 [Note: for each of the decisions but one. (iv) It could not be saved by s 1 Citizenship .Religion is another ground expressly prohibited by s 15 . . many disabilities can be accommodated by changes to work places and public facilities that permit those who are blind.R v Hess: The offence of statutory rape did not offend s 15. which denied benefits to persons over 65. Held: (i) The restriction on benefits for chronic pain distinguished between workers with chronic pain and workers with other kinds of work related injuries. a blind person is disqualified from driving). the Act provided that a person born to a Canadian father was automatically entitled to citizenship upon registration in Canada of the birth. Canadian Foundation for Children v Canada (re: defence to assault charge to use corrective force on children). namely those who were under 35 were denied pension plan payments upon death of surviving spouses. This law could not be saved under s 1. although the offence could only be committed by a male. [Note: Toronto and surrounding area only] . He successfully completed all of the NCA requirements in the January.e.g. the leading one being McKinney v University of Guelph: The mandatory retirement rules imposed a disadvantage (retirement) on a defined group by its age (65).See also Wynberg v Ontario (re: program for autistic children cancelled after they turned 6). but it is an analogous ground (Andrews v Law Society) Marital status . . and to apply limited resources to those in greater need .Although there are legal restrictions properly predicated on mental disability (e. but simply was designed to recognize the reality that older people would be in greater need of support. so it could as a matter of biological fact be committed only by males [Hogg criticizes this] .There are some differences between this ground and the other ones: (i) A minority defined by age is much less likely to suffer from the prejudice of the majority than is a minority defined by race or religion: we all go through the age cycle. unless that denominational school system is protected under the special provision of s 93 Sex .Law v Canada: The SCC upheld a law that denied a benefit to young persons. (ii) The distinction was based on physical disability (an expressly prohibited ground).

there has only be one case in which s 1 has saved a law found to be in breach of s 15. call Andrew @ (647) 878-6355. and therefore concluded that they fall into an analogous group to those enumerated in s 15  S 1 analysis: There is not a sufficiently rational connection between the required personal characteristic of citizenship and the governmental interest in ensuring lawyers in BC are familiar with Canadian institutions. by reason of. and its impact upon those to whom it applies.This has not been interpreted as an “exception” to s 15(1). because of s. obligations. non-citizens are a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated.Indirect discrimination is caused by a law that does not expressly employ any of the categories listed in s 14 (or analogous to those listed).S 15(2) makes it clear that s 15 doesn’t preclude affirmative action or equity programmes in favour of disadvantages individuals or groups . very relevant there) Justification under s 1 . note that relative to citizens. 2010 sitting. He successfully completed all of the NCA requirements in the January.For tutoring on this subject by the person who created these notes. It is entirely reasonable that legislators consider and adopt measures designed to maintain within the legal profession a body of qualified professionals with a commitment to the country and Discrimination permitted by the Constitution . benefits. The issues which will arise from case to case are such that it would be wrong to attempt to confine these considerations within such a fixed and limited formula.  Discrimination is the key in s 15: ask. showing the difficulty in upholding a law that infringes equality Affirmative action . And. if there is a distinction. The distinction would deny admission to the practice of law to non-citizens who in all other respects are qualified. 1979. whether intentional or not but based on grounds relating to personal characteristics of the individual or group.It is immaterial whether discrimination is intentional or not. and advantages available to other members of society. 15(1) apply to all persons whether citizens or not  s 1 analysis: (1) Objective: The Act was enacted for a valid and desirable purpose. or disadvantages on such individual or group not imposed upon others.C. they are independent (see R v Kapp) ISSUE: Does s 42 offend s 15 of the Charter? REASONING: Wilson J (Majority)  I agree with my colleague that a rule which bars an entire class of persons from certain forms of employment solely on the ground that they are not Canadian citizens violates the equality rights of that class.captan@utoronto. The permanent resident must wait for a minimum of three years from the date of establishing permanent residence status before citizenship may be acquired. . and are capable of playing a role in our system of democratic government  Disposition: the law is unconstitutional McIntyre J (Dissenting in part – namely on the s 1 analysis)  Consideration must be given to the content of the law.  Before turning to s 1 analysis.Thus.B.  s 15 analysis: It would seem to me apparent that a legislative distinction has been made by s. The rights guaranteed in s. religious affiliation or disability. 26. discrimination may be indirect AND unintended  Reasonable accommodation .Since Law imported the human dignity analysis into s 15. or which withholds or limits access to opportunities. The distinction therefore imposes a burden in the form of some delay on permanent residents who have acquired all or some of their legal training abroad and is. or e-mail him @ andrew. are committed to Canadian society. that’s what matters .It is a necessary corollary of the rule that discrimination may be indirect and unintended that a law may have to make reasonable accommodation for those who. These provisions are not sheltered from Charter attack by reason of their constitutional status Andrew v Law Society of BC FACTS: s. that distinction must be discriminatory. namely the creation and regulation no the legal profession of the practice of law. The distinction denies admission to non-citizens who are in all other respects qualified. If it’s effect is discriminatory.S.There are certain provisions in the Constitution which are discriminatory on some of the grounds listed in s 15. discriminatory. [Note: Toronto and surrounding area only] Other things to note Direct and indirect discrimination  Substantive equality . if the law has a disproportionately adverse effect on the persons defined by any of the prohibited categories . for example. 42 of the Barristers and Solicitors Act. and also upon those whom it excludes from its application.ca . rather sub (2) and (1) are confirmatory of one another. are discriminated against by otherwise neutral laws (see “Mental and physical disability”. which has the effect of imposing burdens. differentiates between citizens and non-citizens with respect to admission to the practice of law.A law may be discriminatory on its face or in its effect (the latter being substantive equality) (Andrews) . R. 42 of the Barristers and Solicitors Act between citizens and non-citizens with respect to the practice of law. to its purpose. 42 of the Act.A law may also be discriminatory in its application  Unintentional discrimination . c. been denied equality before and under the law or the equal protection of the law? In practical terms it should be noted that the citizenship requirement affects only those non-citizens who are permanent residents. therefore. if so. Have the respondents.

R. differential treatment will not likely constitute discrimination within the purpose of s. Alternatively. if so. The Legislature in fixing public policy has chosen the citizenship requirement and. Among the benefits available under the CPP is the survivor’s pension. 15(1). call Andrew @ (647) 878-6355. One consideration which the Court has frequently referred to with respect to the issue of pre-existing disadvantage is the role of stereotypes. or political or social prejudice.ca . the effects of a law as they relate to the important purpose of s. then this will lead to infringement. 1 of the Chart REASONING: Approach to s 15(1) (1) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics. and in particular where the differential treatment also assists in ameliorating the position of the disadvantaged within Canadian society.C. must all be undertaken in a purposive and contextual manner .Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds. 2010 sitting.For tutoring on this subject by the person who created these notes. equally deserving of concern. c. 15(1) of the Canadian Charter of Rights and Freedoms on the ground that they discriminate against persons under the age of 45 on the basis of age and. Although the claimant’s association with a historically more advantaged or disadvantaged group or groups is not per se determinative of an infringement. and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics. He successfully completed all of the NCA requirements in the January. or members of “discrete and insular minorities” should always be a central consideration. no power to invade the legislative field and substitute its views for that of the Legislature. respect and consideration. It is concerned with physical and psychological integrity and empowerment. [Note: Toronto and surrounding area only] to the fulfilment of the important tasks which fall to it. If law promotes stereotype. or devalued. or less worthy of recognition or value as a human being or as a member of Canadian society. This purposes drives the s 15 analysis Human dignity . C-8. which draw distinctions on the basis of age with regard to entitlement to survivor's pensions. pre-existing disadvantage. So. it has no power under the Charter to strike it down or.The determination of whether legislation fails to take into account existing disadvantage. ignored. the existence of these pre-existing factors will favour a finding that s.S.What is human dignity? Human dignity means that an individual or group feels self-respect and self-worth.captan@utoronto. by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics. unless the Court can find that choice unreasonable. there is differential treatment for the purpose of s. and consideration? . 15(1). whether the infringement is justified under s.Four indicia to determine whether demeaning of dignity has occurred (a) Pre-existing disadvantage: As has been consistently recognized throughout this Court’s jurisprudence. . This monthly benefit is paid to a surviving spouse whose deceased partner has made sufficient contributions to the CPP. and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society. 15(1) has been infringed. 15(1) where it does not violate the human dignity or freedom of a person or group in this way. 15(1) in protecting individuals or groups who are vulnerable. 15(1) equality guarantee? The purpose of s. 44(1)(d). 44(1)(d) and 58 of the Canada Pension Plan. existing vulnerability).What is the purpose of the s. disadvantaged. probably the most compelling factor favouring a conclusion that differential treatment imposed by legislation is truly discriminatory will be. or whether a claimant falls within one or more of the enumerated and analogous grounds. or otherwise has the effect of perpetuating or promoting the view that the individual is less capable.. or e-mail him @ andrew. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage. or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so.e. Dignity is harmed when individuals and groups are marginalized. namely. or whether differential treatment may be said to constitute discrimination within the meaning of s. 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. stereotyping. (b) Relationship b/w grounds and the claimant’s characteristics/circumstances: Although the mere fact that the impugned . or prejudice experienced by the individual or group (i. (2) Was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? (3) Does the differential treatment discriminate. 1985. equally capable and equally deserving of concern. disability or death of the wage earner. and is enhanced when laws recognize the full place of all individuals and groups within Canadian society [Note this is not to be used as a definition of human dignity – see 4 contextual factors below] . where it exists. respect. (2) Proportionality assessment: (a) Etc [Not important] HELD: Majority held that law was unconstitutional Law v Canada (Leading case on s 15) FACTS: This appeal concerns the constitutionality of ss. The Canada Pension Plan (the “CPP”) is a compulsory social insurance scheme which was enacted in 1965 in order to provide contributors and their families with reasonable minimum levels of income upon the retirement. an age threshold ISSUE: Whether the provisions infringe s. stereotyping. vulnerability. as has been said. and who meets the eligibility criteria specified in s.

the legislative imposition of differential treatment has the effect of demeaning his or her dignity] Application to the case (1) Differential treatment: The CPP grants benefits to surviving spouses over the age of 35 immediately following the death of the contributor. without dependent children. adults under the age of 45 have not been consistently and routinely subjected to the sorts of discrimination faced by some of Canada’s discrete and insular minorities. it will generally be more difficult to establish discrimination to the extent that the law takes into account the claimant’s actual situation in a manner that respects his or her value as a human being or member of Canadian society. mainly non-aboriginal. He successfully completed all of the NCA requirements in the January. but rather to enable older widows and widowers to meet their basic needs during the longer term. taken together. Thus. the more likely that the distinction responsible for these consequences is discriminatory within the meaning of s. The appellant has not established that either the purpose or effect of the impugned legislative provisions violates her human dignity. 15(1) to protect ameliorative programs from claims of discrimination — a possibility left open in this Court’s equality jurisprudence REASONING: Background of s 15 . respect. The purpose and function of the impugned CPP provisions is not to remedy the immediate financial need experienced by widows and widowers. given the delay in the receipt of the benefits and the reduced entitlement to benefits (2) Distinction on the basis of an enumerated/analogous ground: In my view. Had the appellant been ablebodied. or e-mail him @ andrew. who assert that their equality rights under s. 15(1) claim is brought by a more advantaged member of society. are more economically vulnerable to the long-term effects of the death of a spouse HELD: Appeal dismissed R v Kapp FACTS: The appellants are commercial fishers. However. 15(1) claim. until they reach age 65 or unless they should become disabled in the interim. but the differential treatment does not reflect or promote the notion that they are less capable or less deserving of concern. Relatively speaking. like surviving spouses who are disabled or who care for dependent children.Governments may wish to combat discrimination by developing programs aimed at helping disadvantaged groups improve their situation. This factor is more relevant where the s. provided she does not subsequently become disabled. 15 of the Canadian Charter of Rights and Freedoms were violated by a communal fishing licence granting members of three aboriginal bands the exclusive right to fish for salmon. she is denied any benefits until she reaches age 65. 15 of the Charter”. 15(1) of the Charter. 15(2) is capable of operating independently of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. Clear distinction made on AGE. from facts of which the Court may appropriately take judicial notice. 15(2) of the Charter.e. and less difficult to do so where the law fails to take into account the claimant’s actual situation. a denial of equal benefit of the law. 44(1)(d) and 58 of the CPP impose a disadvantage upon the appellant as a younger adult in a manner which constitutes discrimination under s. (3) Discrimination: The central question in the present case is whether the age distinctions drawn by ss. it will be more difficult as a practical matter for this Court to reason. she would have been immediately entitled to receive full benefits. these benefits are not available to able-bodied spouses without dependent children who are less than 35 years of age at the time of the death of the contributor. when the dual perspectives of long-term security and the greater opportunity of youth are considered Another factor supporting the view that the impugned CPP provisions do not violate essential human dignity is the clear ameliorative purpose of the pension scheme for older surviving spouses. as an able-bodied. childless woman who was 30 years of age at the time of her spouse's death. An ameliorative purpose or effect which accords with the purpose of s. The law on its face treats such younger people differently. the Charter . However. raise the issue of the interplay between s. For this reason. 15(2). 15(1) and s. Through s. APPLY A MODIFIED OBJECTIVE TEST).For tutoring on this subject by the person who created these notes. [NOTE: THE POINT IN THE DIGNITY ANALYSIS IS TO ASK WHETHER from the perspective of a reasonable person in circumstances similar to those of the claimant who takes into account the contextual factors relevant to the claim (i. that the legislative distinction at issue violates the human dignity of the appellant. Older surviving spouses. they require this Court to consider whether s. the survivor’s pension provisions of the CPP clearly draw distinctions on the basis of the enumerated ground of age. [Note: Toronto and surrounding area only] legislation takes into account the claimant’s traits or circumstances will not necessarily be sufficient to defeat a s. and consideration.ca . Young persons experience fewer impediments to long-term labour force participation and are generally in a better position than older persons to replace independently over the long run as a working member of Canadian society the income of a deceased spouse. 2010 sitting. ISSUE: These contentions. The essence of the claim is that the communal fishing licence discriminated against them on the basis of race. evaluate not only the economic but also the constitutional and societal significance attributed to the interest or interests adversely affected by the legislation in question. Specifically. (c) Ameliorative purpose or effects: Another possibly important factor will be the ameliorative purpose or effects of impugned legislation or other state action upon a more disadvantaged person or group in society.captan@utoronto. call Andrew @ (647) 878-6355. and over age 45 at the time of her spouse's death. (d) Nature of the interest affected: the more severe and localized the consequences on the affected group.

[Note: Toronto and surrounding area only] preserves the right of governments to implement such programs. 15(2) protection. prejudice and negative social characterization Application of s 15(2) to this case . Under s. You need that distinction first: (a) First .Therefore. cannot only become confusing and difficult to apply. at stage two (s 1 analysis). 15(2) in the sense that it is a “law.captan@utoronto. call Andrew @ (647) 878-6355. in simple clear language. 15 of the Charter. it has also proven to be an additional burden on equality claimants. since Andrews. Read thus. program or activity creates a distinction based on an enumerated or analogous ground. and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds. the burden shifts to the government or another defending party .Viewed in this way. (vi) You need to start with an unequal treatment.As noted. 15. 2010 sitting. . . as discussed. It doesn’t violate it. . the focus is on enabling governments to proactively combat existing discrimination through affirmative measures. human dignity is an abstract and subjective notion that.The standard of proof is on a BoP Presumption of constitutionality . or impose disadvantage on the basis of stereotyping.The achievement of Law was its success in unifying what had become.The TEST under s 15(2) is as follows: A program does not violate the s. (v) 15 (2) trumps 15 (1). several difficulties have arisen from the attempt in Law to employ human dignity as a legal test . He successfully completed all of the NCA requirements in the January. The four factors cited in Law are based on and relate to the identification in Andrews of perpetuation of disadvantage and stereotyping as the primary indicators of discrimination. The focus of s. 15 equality guarantee if the government can demonstrate that: (1) the program has an ameliorative or remedial purpose. was the government’s goal in creating that distinction to improve the conditions of a group that is disadvantaged? And note that the ameliorative purpose need not be the sole purpose of the Act (b) “Amelioration”: Section 15(2) protects programs that aim to “ameliorate” the condition of disadvantaged groups identified by the enumerated or analogous grounds (c) “Disadvantaged”: “Disadvantage” under s.For tutoring on this subject by the person who created these notes.At the same time. 15(2). .Second. (iii) A vehicle for gov to validly discriminate to ameliorate (improve) the disadvantage of certain groups. the government program is protected by s 15(2). or e-mail him @ andrew. HELD: Appeal dismissed COMMENT: (i) S 15 (2) put in the Charter to allow affirmative action programs.As critics have pointed out. equality.But this confirmatory purpose does not preclude an independent role for s. Analysis of s 15(2) . 15(1) is on preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping. so yes.At stage one. and not just formal. as Law itself recognizes. Law does not impose a new and distinctive test for discrimination. the GOV will try to justify the legislation UNDER s 15 (2) [10 ] LIMITATION OF RIGHTS: R v Oakes Burden of proof . . without fear of challenge under s. It tells us. The disadvantage of aboriginal people is indisputable. Law accomplished this by reiterating and confirming Andrews’ interpretation of s. This qualifies as a “law.The question that arises is whether the program that targeted the aboriginal bands falls under s.ca .The central purpose of combating discrimination. even with the guidance of the four contextual factors. . 15(1). 15(1) cannot be read in a way that finds an ameliorative program aimed at combating disadvantage to be discriminatory and in breach of s. a division in this Court’s approach to s. Kapp and other non-band fishers from the fishery had an ameliorative or remedial purpose. underlies both s. 15(2) is on enabling governments to pro-actively combat discrimination. (iv) So if gov can bring itself under s 15 ( 2) then no violation of s 15 (1). 15 set out in Andrews and developed in numerous subsequent decisions . . 15(2).The focus of s. program or activity” within the meaning of s. where a law. the government’s aims correlate to the actual economic and social disadvantage suffered by members of the three aboriginal bands. that s. more usefully focuses on the factors that identify impact amounting to discrimination.Onus on government to show that the program is protected by s 15(2) . 15(1). rather than the philosophical enhancement it was intended to be . the focus is on preventing governments from making distinctions based on the enumerated or analogous grounds that: have the effect of perpetuating group disadvantage and prejudice. . Under s.It follows that the program does not violate the equality guarantee of s. 15 connotes vulnerability. 15(1) and s. the communal fishing licence authorizing the three bands to fish for sale on August 19-20 was issued pursuant to an enabling statute and regulations — namely the ACFLR.The analysis in a particular case. a claimant will claim discrimination based on s 15 (1) of the legislation in the question based on an enumerated or analogous grounds and (b) Second. The government was hoping to redress the social and economic disadvantage of the targeted bands. 15 as a guarantee of substantive. Section 15(2) is more than a hortatory admonition. but rather affirms the approach to substantive equality under s. 15. program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups”. the two sections are confirmatory of each other . (ii) S15 (2) enables (allows) gov to make unequal laws in order to combat discrimination. person who alleges Charter breach has burden. . 15(2).There are 3 key phrases to s 15(2): (a) “Has as its object”: The language of s. 15(2) . 15(2) suggests that legislative goal rather than actual effect is the paramount consideration in determining whether or not a program qualifies for s.First question is whether the program that excluded Mr.

In RJR MacDonald v Canada. call Andrew @ (647) 878-6355.Not easy to determine the objective .First.The objective.e.captan@utoronto. Thus. In Irwin Toy.The essence of rational connection is a causal relationship between the objective of the law and the measures enacted by the law (2) Minimum impairment  Definition . the objective should not have been phrased as the protection of public health from the use of tobacco. must be said to be “sufficiently important” .The s 1 inquiry almost always turns on the answer to (3) (i. the more desirable the objective will be) . The law must be carefully designed to achieve the objective in question.It can be expressed at various levels of generality (the higher the level of generality. has never influenced the outcome of a case.No presumption of constitutionality (although the reading down principle of interpretation applies) Limits -There is one decision of the SCC that holds that not every Charter infringement is a “limit”.Second. rather than to other goals. as the “protection of children from advertising” . or e-mail him @ andrew. however. minimum impairment) . it must be consistent with the values of a free and democratic society .The statement of the objective should be related to the infringement of the Charter. unfair.E. Children of Canadian mothers could not rationally be regarded as more dangerous than children of Canadian fathers  Causation .Note that before going through the Oakes test. In that case. the objective must be directed to “the realization of collective goals of fundamental importance”  Cost . no matter how reasonable or demonstrably justified it may appear to be) PART 1: Sufficiently important objective Determining the objective . albeit important.g. The majority defined the objective at a very low level. . once stating it.For tutoring on this subject by the person who created these notes.Question is whether the Charter infringement is too high a price to pay for the benefit of the law . Benner v Canada: Law required person born to a Canadian mother to apply for a citizenship and pass a security check. while there person born to a Canadian father was entitled to citizenship automatically upon registering the birth in Canada.This should take into account the proportionateity between the deleterious and the salutary effects of the measures .g.This test.There are 4 aspects to it (1) Sufficiently important objective (2) Rational connection (3) Least drastic means (4) Proportionate effect . He successfully completed all of the NCA requirements in the January.R v Lee suggests YES PART 2: Proportionality test (1) Rational connection  Definition . The objective was said to be to screen potential citizens in order to keep dangerous people out (re: required security check). [Note: Toronto and surrounding area only] . The Court held that there was no rational connection b/w the objective and the discrimination. the challenged law banned advertising on tobacco products. it was said that the objective must be to prevent people in Canada from being persuaded by advertising and promotion to use tobacco products.The limit on the Charter right must be the minimum that is necessary to accomplish the desired objective  Margin of appreciation . is nevertheless outweighed by the abridgement of the rights . E. it should not be arbitrary.Is it a possible justification of a limit on a Charter right that the limit will save money? .g.Third.ca .The level of generality can have a serious impact on whether the minimum impairment limb will be passed . rather than insisting that only the least possible infringement could survive (3) Proportionate effect . 2010 sitting.The requirement of rational connection calls for an assessment of how well the legislative garment has been tailored to suit its purpose.The majority in Edwards Books recognised this idea of a margin of appreciation – we look for a reasonable legislative effort to minimize the infringement of the Charter right. it can never be justified under s 1. the impugned law prohibited advertising directed at children under 13.But court must pay some degree of deference to legislative choices .E.DEFINE THE OBJECTIVE AT A FAIRLY HIGH LEVEL OF GENERALITY WITHOUT JUST RESTATING THE LAW  Importance of objective . and it is redundant . the objective must relate to concerns which are “pressing and substantial” . or based on irrational considerations .The effects of the limiting measures must not so severely trench on individual or group rights that the legislative objective. and any infringement that is more than a limit cannot be justified under s 1 The Oakes test . ask whether the limit is “prescribed by law” (if an act is not legally authorized.

the other remedy section.ca . quashing a warrant). usually. ordering the return of goods improperly seized or a mandatory injunction requiring positive action) .If the first part of the test is passed (sufficient objective). when only a part of a statute or provision violates the Constitution. confers a benefit on a class that failed to include all persons who had an equality based right to be included. or e-mail him @ andrew. but see R v Demers  Court of competent jurisdiction .The supremacy clause gives to the Charter overriding effect. and (b) such part of the remainder of which it cannot be safely assumed that the legislature would have enacted it without the inconsistent portion. then this one should necessarily be passed as well  Apprehended infringements . staying a proceeding. for example by dismissing a charge.Generally speaking. and so is an order of costs Schachter v Canada FACTS: A s 15 claim was made. and affirmative remedies (such as ordering a province to provide state-funded couinsel to an indigent litigant. 24 a court will determine its course of action with reference to the nature of the violation and the context of the specific legislation under consideration Section 52 The Doctrine of Severance  Generally speaking. it is common sense that only the offending portion should be declared to be of no force or effect. as the Charter is part of the “Constitution” .For tutoring on this subject by the person who created these notes.Subject to the important qualification that a remedy must be appropriate and just in all the circumstances of the case.Not permitted.s 24(1) remedies may be granted only by a “court of competent jurisdiction” (unlike s 52(1))  Range of remedies . ISSUE: Does s. it is applicable only to breaches of the Charter) .This section provides for the granting of a remedy to enforce the rights or freedoms guaranteed by the Charter (i. which authorities a court of competent jurisdiction to award a remedy for a breach of the Charter) . while s 24(1) provides the remedy for government acts that violate an individual’s Charter right  Standing . there is no limit to the remedies that may be ordered under this section .There are defensive remedies (where the court nullifies or stops an act.S 24(1) is needed only where a remedy provided by the general law is not available. He successfully completed all of the NCA requirements in the January.Damages is sometimes appropriate. 24(1) of the Charter confer on the Federal Court Trial Division the power to order that natural parents are entitled to benefits on the same terms as benefits are available to adoptive parents under s. and the rest should be spared. 52 or s.The effect of the supremacy clause is to preserve all pre-existing remedies for unconstitutional action and extend those remedies to the Charter of Rights (this is unlike s 24(1).It is the persons’ whose rights have been infringed or denied that is given standing . [Note: Toronto and surrounding area only] . 32 (subsequently s.captan@utoronto. 2010 sitting. and then declare inoperative (a) the inconsistent portion.e. 1982) and 24(1) (Charter) The supremacy clause  S 52 .There are 6 choices of available remedies for s 52(1): (1) Nullification (2) Temporary validity: The rationale for this remedy is that it would be better for Parliament/legislatures to correct the constitutional defect (“dialogue”) (3) Severance (4) Reading in (Schachter): Applies to under inclusive statute which. 20) of that Act? REASONING:  A court has flexibility in determining what course of action to take following a violation of the Charter which didn’t survive s 1 scrutiny  In choosing how to apply s.  The doctrine of severance requires that a court define carefully the extent of the inconsistency between the statute in question and the requirements of the Constitution. or will not provide satisfactory redress. (5) Reading down (6) Constitutional exemption Remedy clause  S 24(1) . . call Andrew @ (647) 878-6355. it will be the declaration of invalidity under s 52(1) that provides the remedy for laws that violate a Charter right.This section doesn’t limit the range of remedies available . [11] REMEDIES: ss 52 (Constitution Act.

by way of severance or reading in.  A court may strike down legislation or a legislative provision but suspend the effect of that declaration until Parliament or the provincial legislature has had an opportunity to fill the void  This approach is clearly appropriate where the striking down of a provision poses a potential danger to the public  It may also be appropriate in cases of underinclusiveness as opposed to overbreadth. (ii) Severance/Reading In Severance or reading in will be warranted only in the clearest of cases. what is the extent of the inconsistency? Second. flexibly where the legislation fails the second or third element of the proportionality branch of the Oakes test. B. C. He successfully completed all of the NCA requirements in the January. where each of the following criteria is met: A. or whether an impugned provision must be struck down in its entirety  Regarding the reading in remedy. but the legislation fails the first element of the proportionality branch of the Oakes test in that the means used to achieve that purpose are held not to be rationally connected to it -. can that inconsistency be dealt with alone. and severance or reading in would further that objective.perhaps the legislation in its entirety. the legislation in question is not usually problematic in and of itself. it is the legislature's role to fill in the gaps. First. these principles can only be fulfilled with respect to the variety of considerations set out above which require careful attention in each case Whether to Temporarily Suspend the Declaration of Invalidity  Having identified the extent of the inconsistency. as opposed to simply a particular action taken under it  Once s. [Note: Toronto and surrounding area only] Reading In as Akin to Severance  In the usual case of severance the inconsistency is defined as something improperly included in the statute which can be severed and struck down. . B. or it is revealed through the evidence offered pursuant to the failed s. 2010 sitting.For tutoring on this subject by the person who created these notes. not the court's  The remedy must not intrude on legislative sphere. call Andrew @ (647) 878-6355. should the declaration of invalidity be temporarily suspended? The factors to be considered can be summarized as follows (i) The Extent of the Inconsistency The extent of the inconsistency should be defined: A. or constitute a lesser interference with that objective than would striking down. in this case some of the interveners argued that in cases where a denial of equal benefit of the law is alleged. and having determined whether that inconsistency should be dealt with by way of striking down. and the degree to which a particular remedy intrudes into the legislative sphere can only be determined by giving careful attention to the objective embodied in the legislation in question  One way to ask whether to read in or sever would be an illegitimate intrusion into the legislative sphere is to ask whether the significance of the part which would remain is substantially changed when the offending part is excised  Another way is to look at the significance of the remaining portion: has the permissible portion always been there? If so. if the purpose is itself held to be unconstitutional -. For example.  The final step is to determine whether the declaration of invalidity of that portion should be temporarily suspended. the choice of means used by the legislature to further that objective is not so unequivocal that severance/reading in would constitute an unacceptable intrusion into the legislative domain.generally limited to the particular portion which fails the rational connection test.captan@utoronto. In such a case. the question of how the statute ought to be extended in order to comply with the Constitution cannot be answered with a sufficient degree of precision on the basis of constitutional analysis. that is. or. three questions must be answered. 1 argument. and. 52 is engaged. or are other parts of the legislation inextricably linked to it? Third. While respect for the role of the legislature and the purposes of the Charter are the twin guiding principles. broadly where the legislation in question fails the first branch of the Oakes test in that its purpose is held not to be sufficiently pressing or substantial to justify infringing a Charter right or. severance or reading in. then it would be safe to assume that the legislature would have enacted the permissible portion without the impermissible portion  There is no easy formula by which a court may decide whether to sever or read in. in some cases. or in some cases reading in. severance or reading in would not involve an intrusion into legislative budgetary decisions so substantial as to change the nature of the legislative scheme in question. It is its underinclusiveness that is problematic so striking down the law immediately would deprive deserving persons of benefits without providing them to the applicant Summary of s 52  Section 52 is engaged when a law is itself held to be unconstitutional. the next question is whether that inconsistency may be dealt with by way of severance.ca . more narrowly where the purpose is held to be sufficiently pressing and substantial. the court has identified what portion must be struck down. C. In the case of reading in the inconsistency is defined as what the statute wrongly excludes rather than what it wrongly includes Deciding whether Severance or Reading in is Appropriate  Having determined what the extent of the inconsistency is. the legislative objective is obvious. indeed. or e-mail him @ andrew.

1. Section 24 Section 24(1) Alone  Where s. 52 of the Constitution Act. call Andrew @ (647) 878-6355. and say why) (2) Is there an override provision in the law: s 33 Note: Only mention this if there is an impugned Act (legislation). C. 2010 sitting. What is the purpose or effect or the law/action (Big M) b. striking down or severance with a temporary suspension of the declaration of invalidity. 52 is to define the extent of the Charter inconsistency which must be struck down. 32 (subsequently s. HELD: Appeal set aside Vriend v Alberta Remedy  The leading case on constitutional remedies is Schachter  The first step in selecting a remedial course under s. In Schachter. striking down the legislation without enacting something in its place would pose a danger to the public. Also. budgetary implications (not sufficiently significant here). These include striking down the legislation. Lamer C. [Note: Toronto and surrounding area only] (iii) Temporarily Suspending the Declaration of Invalidity Temporarily suspending the declaration of invalidity to give Parliament or the provincial legislature in question an opportunity to bring the impugned legislation or legislative provision into line with its constitutional obligations will be warranted even where striking down has been deemed the most appropriate option on the basis of one of the above criteria if: A. supra. that inconsistency is the exclusion of sexual orientation from the protected grounds of the IRPA. depending upon the circumstances. but some action taken under it infringes a person's Charter rights. Must apply the twin guiding principles here (respect for role of Legislature and purposes of Charter)  Court chooses reading in as appropriate remedy: It seems to me that the remedy of reading in would minimize interference with this clearly legitimate legislative purpose and thereby avoid excessive intrusion into the legislative sphere whereas striking down the IRPA would deprive all Albertans of human rights protection and thereby unduly interfere with the scheme enacted by the Legislature. These include remedial precision (this can be achieved here. this Court noted that. and interference with legislative objectives (reading in would only enhance the legislative objective). this exclusion is an unjustifiable infringement upon the equality rights guaranteed in s. 1982 is not engaged. and reading provisions into the legislation. a remedy under s. because all persons protected would continue to benefit). the legislation was deemed unconstitutional because of underinclusiveness rather than over breadth. or. 15  Once the Charter inconsistency has been identified.captan@utoronto. [12] CHARTER ANSWER STRUCTURE (1) Application of the Charter: s 32. 1982 Does the Charter apply in this situation? (Answer must be yes. Does not apply to government actions. 52 of the Constitution Act. 24(1) of the Charter may nonetheless be available. reading down. 1982.For tutoring on this subject by the person who created these notes. Remedial Options  Does s. but just mention it anyways. and therefore striking down the legislation would result in the deprivation of benefits from deserving persons without thereby benefitting the individual whose rights have been violated. Constitution Act. or e-mail him @ andrew. this remedy respects purposes of Charter  In Schachter. however. (3) Infringement of a Charter right The onus is on the applicant/claimant to demonstrate that an infringement has occurred (presumption of constitutionality) a. severance of the offending sections. there are several remedial options available to a court in dealing with a Charter violation that was not saved by s. just adding words “sexual orientation). Section 24(1) provides an individual remedy for actions taken under a law which violate an individual's Charter rights. noted that the twin guiding principles can only be fulfilled if due consideration is given to several additional criteria which further inform the determination as to whether the remedy of reading in is appropriate. a limited power to extend legislation is available to courts in appropriate circumstances by way of the power to read in derived from s. Section 24(1) would there provide for an individual remedy for the person whose rights have been so infringed. effects on the thrust of the legislation (no deleterious impact. Again. B. As I have concluded above. 20) of that Act? The answer to question two is no. 24(1) of the Charter confer on the Federal Court Trial Division the power to order that natural parents are entitled to benefits on the same terms as benefits are available to adoptive parents under s.J.ca . Does it’s purpose or effect infringe a Charter right? [Note: This is where you outline the law of the relevant . This will be the case where the statute or provision in question is not in and of itself unconstitutional. In the present case. the second step is to determine which remedy is appropriate. striking down the legislation without enacting something in its place would threaten the rule of law. He successfully completed all of the NCA requirements in the January.

2010 sitting.g.Deleterious effects? . d. Based on the analysis above. The violation may be lawful if it results in a reasonable limit.captan@utoronto. Charter prohibits only burdens or impositions on religious practice that are nontrivial) (R v Jones) (4) Section 1 analysis (Oakes) Burden shifts to legislature/Parliament/government to justify violation The Charter does not guarantee rights absolutely.g. that is demonstrably justified in a free and democratic society.e. Conclusion? (e. Requires a consideration of alternatives available to government. He successfully completed all of the NCA requirements in the January. is absolute. In making this assessment. Is the limit “prescribed by law”? (Consider whether the law is accessible. i. Does the legislation/action pass the proportionality test? (i) Is the limit rationally connected to the legislative purpose? (the law’s means must contribute to the achievement of its objectives) (ii) Does the limit minimally impair the right? (Means chosen must be the least restrictive manner of accomplishing the objective of the impugned provisions. _____ (does/does not) offend the Charter. [Note: Toronto and surrounding area only] Charter right in relation to how what the right protects. I conclude that I conclude that the limit on ____ is/is not justified under s 1) (5) Overall conclusion Therefore. a statute or regulation suffices: Dolphin Delivery.ca . the courts accord the legislature a measure of deference.Balancing the salutary and deleterious effects of the law. and is therefore constitutionally (valid/invalid) (6) Remedies: ss 24 & 52 The next step would be a Court imposing a remedy b. is the limit on the right proportionate in effect to the public benefit conferred by the limit? . including freedom of religion. or e-mail him @ andrew. when one balances the harm . does the effect of the legislation infringe freedom of religion? To answer that. Re: precision and vagueness. there is a margin of appreciation) (Edwards Books) (iii) Is the law proportionate in its effect? In other words. precise and not vague.Salutary effects? . a. make a judgment call) The next step is to apply the Oakes test: done to the claimants’ (list the right infringed) against the benefits associated with (state what the impugned law essentially does).. first must define what “religion” is as per s 2(a)] c. prescribed by law. I conclude that the impact of the limit on (name the infringed right) (is/is not) proportionate.For tutoring on this subject by the person who created these notes. call Andrew @ (647) 878-6355. Is the infringement more than trivial? (No Charter right. Does the legislation/action have a sufficiently pressing and substantial objective? c. e. Re: accessibility.

than easier to define) . perhaps. But dissent pointed out that subjective foresight of death has never been the exclusive standard for murder in Canada or in other countries that’ve inherited English principles of criminal law. [Note: Toronto and surrounding area only] POTENTIAL ESSAY QUESTIONS (1) Unwritten constitutional principles Positives: (a) Help resolve difficult legal/constitutional questions Negatives: (a) Uncertainty of what the “constitution” is (b) s 52(2) (i. and its dependence on the moral attitudes of the judges (ii) Example of variety of definitions of what POFJ is (if it was simply procedural. difficult to apply (e.e.For tutoring on this subject by the person who created these notes.g. He successfully completed all of the NCA requirements in the January. what does the Court mean by “minorities”) (2) Dialogue between courts and legislature (3) Evaluating s 33 (4) Evaluating s 35 (5) Evaluating the various ways of interpreting the Charter (6) Evaluate the decision of the SCC to interpret PoFJ to include substantive protections and not just procedural ones (7) Whether having “substantive” fundamental justice was a good decision (i) There is a problem with moving to substantive justice = indeterminacy (ii) Subjective foreseeability is required for murder to comply with POFJ (R v Martineau). or e-mail him @ andrew. call Andrew @ (647) 878-6355. 2010 sitting. yet rights and liabilities are determined by them. How then did it suddenly become a basic tenet of the legal system? This points to the indeterminacy of the doctrine of substantive fundamental justice.captan@utoronto.ca . adding unwritten principles goes against the grain of the intention of the drafters) (c) Erodes relationship b/w judiciary and the legislative/executive (d) Principles are vague. definition of “Constitution”) is expressed solely in terms of written instruments (so.

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