QUIZ #1 CANADIAN CONSTI

Which of the following is NOT true:

- Legislative authority under the Constitution Act, 1867, is assessed by way of a two step process.

- R v Hydro Quebec, 1997, set out two steps for determining legislative authority: (i) characterization of
pith and substance or the dominant characteristic of the law, and (ii)concomittant assignment to one of
the heads of power enumerated in ss.91 and 92.
- Any assessment of the validity of a law begins with this two-step process set out in cases such as Same
Sex Marriage Reference, R v Hydro-Quebec and R v Morgentaler.
- Same Sex Marriage Reference stands for the idea that our validity analysis is not guided by
principles of constitutional interpretation, such as the notion that Canada is a pluralistic
society and therefore a large, liberal and progressive interpretation is required to ensure the
continued relevance and legitimacy of the Constitution. (IT IS GUIDED BY THIS PRINCIPLE OF
CONSTITUTIONAL INTERPRETATION)

In determining the matter or pith and substance of the federal Lord's Day Act, which of the following is
NOT true:
- Our approach to characterization must not be technical or formalistic (R v Morgentaler). Rather,
flexibility is required.
- Of the four Morgentaler factors, the practical effect of the Lord's Day Act will be the most
crucial consideration in determining the pith and substance of that law.
- We must consider the four Morgentaler factors, including the legal effect of the Lord's Day Act, the
practical effect of the Act, social and economic purposes of the Lord's Day Act and any extrinsic
materials (including legislative history and related legislation).
-The legal effect of the Lord's Day Act will require looking at how the legislation as a whole effects the
rights and liabilities of those subject to its terms. This is determined from the terms of the legislation
itself.

In this particular fact scenario, your colleague Virginia will be characterizing and classifying both the
federal Lord's Day Act and the Ontario Retail Business Holidays Act.
True
False

Which of the following can be considered a LEGAL EFFECT of the Lord's Day Act? (Select all that apply)
- The Lord's Day Act creates a penalty, in the form of an offence punishable on summary
conviction.
- The Lord's Day Act promotes observance of a day or worship or rest as required by certain branches of
the Christian faith.
- The Lord's Day Act prohibits people from selling goods, chattels, personal property or

real estate from midnight on Saturday night to midnight of the following night.
- The Lord's Day Act prohibits people from employing others to carrying on trade on a certain day of the week,
unless they fall under an exception.

Which of the following might be considered a "social or economic purpose" of

the Lord's Day Act? (select all that apply)
- Securing public observance of the Christian institution
of the Sabbath.
- Providing a uniform day of rest from labour.
- Regulating trade and commerce.
- Suppressing Roman Catholics. (this would likely be a
PRACTICAL EFFECT)

After considering and applying the tests for characterization, one can conclude that the leading feature
or true nature of the Lord's Day Act is that... (select one)
- it is an Act that seeks to regulate trade and commerce within the
provinces on Sundays.
- it is a secular Act seeking to secure a uniform day or rest from
labour.
- it is an Act that seeks to suppress religious minorities.

- it is an Act aimed at compelling the religious observance of

the Sabbath.

Having determined that the Act was intended to promote religious observance of the Sabbath, we must
assign it to a head of power. Looking at sections 91 and 92, which head of power is NOT a possibility?
Section 91(2) Regulation of Trade and Commerce (P&S is religious observance.. doesn't
look like trade and commerce)
Section 92(16) Matters of a Local or Private Nature within the Province

Section 92(13) Property and Civil Rights

Section 91(27) Criminal Law

The federal government has authority to regulate on substantive aspects of criminal law as well as

criminal procedure, while the provincial government has authority over the constitution and maintenance
of courts as well as the imposition of penalties to enforce provincial laws.
True
False

The federal Lord's Day Act has the following features: (select all that apply)
- A criminal public purpose, namely the regulation of public peace.
- A criminal public purpose, namely the regulation of
morality.
- A prohibition on conducting business activities on
Sundays.
- A penalty whereby offences are punishable upon
summary conviction.

The presence of a prohibition and a penalty create at least a prima facie indication that the Act is
criminal in nature. This principle was enunciated in which case?
- Margarine Reference

- RJR MacDonald v Canada

-R v Swain

-Rothmans, Benson & Hedges v

Saskatchewan

How is the prohibition with penal consequences within the Lord's Day Act directed at a criminal
purpose?
- The prohibition on Sunday shopping/trading with accompanying penalties ensures that Canadians observe a day of
rest so as to preserve their health.
- The prohibition on Sunday shopping/trading with accompanying penalties ensures that
Canadians observe a day of rest as mandated by the Sabbath, thereby preserving the

morality of Canadian society.

- The prohibition on Sunday shopping/trading with accompanying penalties ensures that Canadians observe a day of
rest so that there is a uniform standard for labour within Canadian society, thereby ensuring public peace.
- The prohibition on Sunday shopping/trading with accompanying penalties ensures that Canadians observe a day of
rest from trade and commerce, a valid federal head of power.

The Lord's Day Act is a valid exercise of federal legislative power.

- True
- False

Applying the Morgentaler factors to the Ontario Retail Business Holidays Act, we determine the following
to be true:
- the true nature of the law is to regulate when businesses can operate within Ontario.

- the legal effect of the law is to prohibit the sale of goods on holidays and Sundays, and
impose a fine upon violators.
- the social or economic purpose of the law is to ensure that public holidays are respected
and to reign in commercialism on those days.
- the practical effect of the law is to stifle business interests.

The Retail Business Holidays Act might fall under which of the following heads of power? (select all that
apply)
- Section 91(27) Criminal Law Power

- Section 92(13) Civil and Property Rights

- Section 92(16) Matters of a Local or Private

Nature
- Section 92(11) Incorporation of Companies with
Provincial Objects

The Ontario Retail Business Holidays Act has the following features: (select all that apply)

- A penalty whereby offences are punishable by a

fine.
- A criminal public purpose, namely the regulation of order.
- A prohibition on conducting business activities
on Sundays.
- A criminal public purpose, namely the regulation
of morality.

Double aspect doctrine allows laws to run in parallel to one another, as sections 91 and 92 are not
watertight compartments.
True
False

Applying double aspect doctrine, which of the following are true (select all that apply). The federal Lord's
Day Act and the provincial Retail Business Holidays Act:
might be anchored in different heads of power, with the federal Act anchored in the criminal
law head of power and the provincial Act anchored in s.92(13) civil and property rights.
might be anchored in the same head of power, namely criminal law.

are governing the same activity but different aspects of it.

are not in conflict with one another.

The Lord's Day Act and the Retail Business Holidays Act do not expressly contradict one another, so it is
possible for a person to obey both (Multiple Access).
True
False

The provincial law frustrates the purpose of the federal law.

True

False

The provincial Retail Business Holidays Act will not be operable if the following is found:
- the two pieces of legislation (federal and provincial) are anchored in
the same head of power.
- the provincial law does not conflict with the Lord's Day Act.

- the provincial law does not frustrate the purpose of the federal Lord's Day
Act.
- the Retail Business Holidays Act is validly enacted.

The interjurisdictional immunity doctrine is activated even where there is no meeting of legislation or contradiction
between federal and provincial statutes. It only requires that the provincial legislation impact federal things, persons or
undertakings significantly.
True
False

Assuming that you have concluded that the Retail Business Holidays Act meets the criteria of a criminal
law. What would you have to find in order to conclude that the Act is inapplicable?
The core of Parliament's competence over criminal law has been impaired.

There are no adverse consequences to Parliament's competence over criminal law, as a result of the
provincial Sunday closing law.
The provincial law seeks to regulate with respect to a matter listed under s.91 federal powers.

A Sunday closing law does not strike at the "basic, minimum and unassailable content" of federal
competence.