CONSTITUTIONAL LAW

1) Sources and Nature of the Constitution

a. Constitutional Act 1867
i. British North American Act 1867(changed in 82’ to Constitutional Act 1867)
ii. No amending clause in this act
iii. No mention or system of responsible government ( the prime minster, the cabinet)

b. Constitutional Act 1982 (enacted through 1982 Canada Act)

i. domestic amending formula was adopted
ii. authority over Canada of the UK Parliament was terminated
1. Canada Act 1982-a short statue of the UK Parliament which terminated the authority over Canada.
iii. Part 7 General
1. The Supremacy Clause is 52(1)-This makes it the supreme law of the country.
2. The Entrenchment clause- 52(3)- This entrenched the Constitutions Act 1982 and makes it only amendable by the
proscribed procedure.

c. Constitution of Canada’ “includes”– defined for first time in 1982 Const Act (s52):
1. The Canada Act 1982, including this Act (includes the Constitution Act 1982 Schedule B)
2. the Acts and orders referred to in the schedule - list of 30 Acts and orders (includes The Constitution Act 1867, its
amendments, the orders in council and statues admitting or creating new provinces and boundaries, and the statue of
Westminster.
(a) Statute of Westminister – conferred on Canada power to repeal or amend imperial statutes applying to Canada,
but BNA Act excluded at Canada’s insistence (so Const wd be more difficult to amend)
3. any amendments to any Act or order referred to in paragraph (a) or (b)
4. “Includes” in s 52(2) indicates that the word is not exhaustive.

(a) Other unwritten principles underlie text of Const Act

(i) Secession Reference [1998]- 4 unwritten principles of Const- democracy, federalism, constitutionalism,
protection of minorities. B/c of democracy, federalism - fed govt and other provinces would be under duty
to enter negotiations
1. Reference by the federal government to the Supreme Court of Canada, in which the Court was asked
whether Quebec could secede unilaterally from Canada. Unilateral secession not possible -- Secession
would require const’l amendmt in accordance with its procedures (but did not specify which one would
apply).
a. SCC also stated: a clear majority on a clear question of law put to referendum in Quebec, would
“confer legitimacy on demands for secession” and give rise to an obligation on all parties to
Confederation to negotiate the required constitl changes. SCC also pointed out that the political
ramifications for failure to negotiate in good faith would include the defaulting govt’s legitimacy
in the eyes of the international community would be undermined. ...
b. Principle of Effectivity: If seceding govt achieved effective control of a territory and recognition
by international commty the secession although unconstitutional would have to be recognized
eventually as a reality by Canada’s own Constl Law.

2. Clarity Act ( created after Succession Reference) Hogg 5.7(a)

a. Defines “clear” - s1–if a province proposes a referendum on succession , the HoC is to consider
the question and determine whether the question is “clear”. Whether clear depends on “the
question would result in a clear result in clear expression of the will of the population of a
province on whether the province should cease to be part of Canada and become an independent
state. “
i. Act states question is unclear if “mere focus to negotiate” or envisages economic /political
arrangement with Canada that obscures a direct expression of the will of the population of that
province

b. s 2 – if q is clear, the Hof C has to determine if the majority is “clear”.

i. The act does not define “clear”- requires HoC to take into acct size of majority, percentage of
eligible voters who voted, and any other matters or circs
ii. If HoC finds that no clear majority in favour of secession, then Govt is prohibited by Act from
enterin into negotiations
 c. s3 – the Act recognizes that under the Constitution of Canada, there is no right to unilateral
succession, and an amendment would be needed to succeeds from Canada.
(ii) Federalism
1. Reference re Secession of Quebec- 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.
a. Described federalism as a means of recognizing regional cultural diversity at the founding
of Canada, particularly w/ respect to the distinct nature of Quebec as predominantly a
French-speaking society. Notes experience of Canada East and Canada West had been bad
under the Union Act (1840)- new Const structure enabled French-speaking Canadians to
form numerical majority in Quebec .
2. Hodge v. Queen (1883)- national and provincial legislatures were coordinate authorities with
equal sovereign status derived from Const.

(iii) Democracy (Secession Reference)

1. 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. . . 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.

(iv) “Parliamentary Privileges” - Houses of Parliament and the provincial legislative assemblies posses a set
of powers and privileges that are “necessary to their capacity to function as legislative bodies
1. New Brunswick Broadcasting Co. v Nova Scotia (1993) - unwritten doctrine parliamentary
privilege should be included in the s52(2) definition even though no mention of it. - “strangers” were
excluded from the Nova Scotia legislative assembly.
2. Also includes freedom of speech in debate, including from legal proceedings for things said in debates.
It also includes right of members of parliament or legislative assemblies not to testify in court
proceedings while Parliament or the Legislature is in Session.
3. Does not include all internal affairs of employees of House – chauffer of Speaker alleged that he’d
been constructively discharged on grounds forbidden by Human Rights Act, SCC denied Parliament’s
position that they were internal affairs of Parliament – SCC held didn’t fulfill test of necessity
4. Powers authorized by parliamentary privilege are not subject to the Charter Rights.
5. The court’s decision means the definition can be expanded.

(v) Parliamentary sovereignity

1. Babcock v. Canada [2002] – SC rejected challenge to S. 39 of Evidence Act, which allows fed govt to
withhold cabinet docs from ct proceedings to which docs are relevant—even though rule of law,
sepration of powers and independence of judiciary at stake – balanced against principle of
parliamentary sovereignity.
a. Secession Reference: “With the adoption of the Charter, the Canadian system of
govt was transformed to a significant extent from a system of Parliamnetary
supremacy to one of constitutional supremacy.”

(vi) Judicial independence-

1. Ref re Independence and Impartiality of Judges of the Prov. Court of PEI (1997) – SCC asserted
that there was an unwritten principle of judicial independence in Const that could have the effect of
invalidating statutes that reduced judicial comp. but decides case under 11(d)
a. even though independence explicitly guaranteed in s.99 of 1867 BNA, Ct held unwritten principle
– required elaborate procedures be followed to remove a judge and even to set salaries
b. Reasoning: Core characteristics of judicial independence include: security of tenure, financial
security and administrative independence. Independence necessary to maintain public confidence
that justice will be done in individual cases, and that rule of law will be maintained. relationship
between the judiciary and other branches of government must be depoliticized – so courts both be
free and appear to be free from political interference through economic manipulation by the other
branches of government.

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 c. FACTS: A statute decreased provincial court justices’ salaries b/c of a provincial deficit. Concern
that this eroded judicial independence guaranteed under s 11(1)(d) of Charter. Held- Judicial
salaries can be reduced, so long as (1) economic manipulation occurs through an independent
body, combined with a judicial compensation commission (between the judiciary and other
branches of government) that would depoliticize the process. (2) No negotiations on judicial
remuneration b/w the judiciary and the executive/legislature. (3) Judicial salaries may not fall
below a minimum level. Here, didn’t happen – so breach of section 11(d) of the Charter of Rights.
As well as unwritten rule.

d. Conventions
i. Rules of the constitution that are not enforced by the law courts. – although the existence of a convention has occasionally
been recognized by the courts
1. Why do people obey them if not law? The breach of a convention would result in serious political repercussions
and eventual changes in law.
2. Const. Convention – UK parliament would not amend BNA Act except at request of Canada
3. Patriation Reference (1981)- SCC was asked whether there was a convention requiring that the consent of the
provinces be obtained before the federal government requested the United Kingdom to enact an amendment to the
Consti of Canada (1982 Const Act and Canada Act). That would affect the provinces. The court was also asked
whether there was a legal requirement for provincial consent. SC found the convention required a “substantial
degree” of provincial consent but it was not necessary to decide exactly what the requisite degree is. (later held
Quebec approval not necessary- Quebec Veto Reference 1982)
4. Public School Boards Assn v Alta. [2000} & English Catholic Teachers Case v Ont [2001]- public school
supported argued that provincial educational statues violated a constitutional convention. Held- in both cases that no
convention restricted the policy or substance of what could be enacted by the provincial Legislature in exercise in
its power to make laws in relation to education.
e. Usage
1. A “usage” is not a rule, but merely a governmental practice which is ordinarily followed, although it is not required
as obligatory. ie of Usage- the practice of appointing to the position of Chief Justice of Canada the person who is
the senior puisne judge of the SCC at the time of the vacancy. This practice has been departed with the appointment
of McLachlin in 2000. A “usage” may develop into a convention. The process of evolution from usage to
convention may be called a “custom.”

f. Main Conventions
1. the governor general only acts on the advice of the Privy Council
2. this Privy Council is not the full Council described in s13 of the Constitution Act 1867 but rather a smaller subset,
the Cabinet
3. the cabinet chosen by the Prime Minister, and the number of ministers is up to him/her
4. the primes minster, although no where mentioned in the Constitution Act 1867, is the head of government
5. the prime minster and his/her cabinet must have the support of a majority of members in the house of commons
6. the prime minster and his/her cabinet must have seats in the House of Commons or Senate
7. House of Commons support for Prime Minsters and cabinets is rallied by means of Political parties and
8. A failure to command and support of a majority of members in the House of Commons results in the government
stepping down and usually the calling of a general election.

g. Other Conventions
1. The operation of Parliament and the legislatures generally, including political parties and at the national level, the
relationship between the elected house of Commons and the appointed Senate
2. The operation of the federal and provincial cabinets, minsters and civil services and the relationship among them
3. Federalism generally, aside from the formal divisions or powers, including reservation and disallowance of federal
and Provincial acts and the role the federally appointed lieutenant governor in provincial matters
4. The role of judges and courts in the governmental process and the independence of judges and courts interference
by the executive and legislative branches and

2) Amending Procedures - Part V of the Constitution Act, 1982 headed “Procedure for Amending Constitution of Canada.”

a. 5 different amending procedures.

i. General amending procedure (s38) for amendments not otherwise provided for (as well as for amendments listed in
s42- proportionate representation, selection of Senate, SC of Canada, establishment of new provinces).

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 1. “7/50 Rule” – requires resolutions to be passed by: Senate + HofC + 7 of the 10 Provinces which have in total at
least 50% of the population.
2. Opting out: 38(3) applies to “any amendt that derogates from the legislative powers, proprietary rights or any other
rights or privileges of the legislature or government of a province”
(a) Prov can pass resolution of dissent prior to proclamation = amendt will not take effect in that province
(i) 38(4): resolution of dissent can be revoked at any time, but 46(2): resolution of assent cannot be revoked
after proclamation
(b) S40 compensates provs for opting out, for any transfer of Provl legislative powers to Fedl govt (in relation to
education or cultural matters only).- otherwise wd be powerful incentive not to opt out, b/c opting out wd
involve bearing substantial expense from which other provincial govt’s would be freed by amendment (e.g.
transferring legis authority over universities from provinces to parliament)

ii. Unanimity procedure (s41), required for five defined kinds of amendments, requiring the assents of the federal
Parliament and all of the provinces - s39 time limits do not apply.
1. Office of Queen, representation in parliament-“Senate floor” entrenches right of least populous provinces to min
representation in HoC, use of English or French- subject to S.43, composition of SC, amendment to amending
procedures themselves
2. But re: SC, the composition of SC is dictated by Supreme Court Act, which is not part of Const, so this is ineffective

iii. Some but not all provinces procedure(s43), for amendment of provisions and only those provinces affected;
1. used for language usage within a province, altering provl bopundaries. Note: protection of minorities is afforded by
the fact that it also requires resolutions of the Senate and HofC (ie Fedl level approval) as well as the affected
provinces. Hogan v Newfdlnd (2000).

iv. The federal Parliament alone (s44) has power to amend provisions relating to the federal executive and House of
Parliament ;and
1. covers amendments to the “Constitution of Canada” in relation to the federal executive, or Senate and the House of
Commons- provided that the amendments do not fall within the category of amendments caught by the General and
Unanimity Formula.

v. Each Provincial Legislature alone (s45) has power to amend “the constitution of the province”.
1. Laws amending constitution of prov (ie those that bear “on the operation of an organ of govt of the province” –
SCC). Note does not include: Constl guarantee of language rights (per SCC in AG Quebec v Blaikie, now explicit in
s45).

b. Limitations
i. Must wait 1 year to proclaim (unless all have consented/dissented) (allows time to consider) 39(1)
ii. Expires in 3 years if required consent not achieved 39(2)

iii. Regional Veto Statute (not constitutional, 1996): no amendt can be proposed by “Minister of the Crown” unless it has
first been considered by a majority of the provinces that includes: Ont, Que, BC, 2+ Atlantic Provs rep min 50% pop, 2+
Prairie Provs rep min 50% pop. Applies to amendments that: do not allow for opting out, and must otherwise follow the
general 7/50 procedure. Does not apply to : s41(unanimity) or s43 (some but not all) amendments.
1. Of course, non-minister can propose resolution, but not likely to pass w/o minister support

c. Attempted Amendments
i. French Canadian Nationalism: Meech Lake Accord 1987 – to appease Que, but fell short of ratification by 2 provs.
ii. Division of Powers: Reducing Fedl and incr Provl power easiest way to address French Candian and Western Canadian
grievances. 1982 amendmts incr provl power over natural resources. On the other hand: Enlargement of certain Fedl
powers may facilitate effective national economic policies, Fedl power is lacking or only avail in emergencies with
respect to: foreign ownership, securities regulation, wage and price controls.

3) Federalism and Judicial Review

a. Sources: Constitution Act, 1867, ss.91-95
i. Constitution Act, 1982, s.52
ii. Hogg, chapter 5, “Federalism”

b. Federalism- Unitary vs. Federal state

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 i. Unitary state government power is vested in one national authority - powers given to municipal governments are
granted by a national authority and can be taken away, altered or controlled at any time by the national legislature.
(Montreal-to Quebec).

ii. Federal- Coordinate power - general and regional govts are each within a sphere coordinate and independent.
1. Hodge v. Queen (1883)- national and provincial legislatures were coordinate authorities with equal sovereign status
derived from Const.

2. Both sections use terminology giving legislative authority in relation to “matters” coming with ‘classes of subjects”.
3. s91- federal Parliament
(a) To provide collective benefits of economic union and greater financial strength and increase defence. As a reset
the BNA act 1867 gave federal Parliament authority over customs and excise, interprovincial and international
trade and commerce, banking and currency, all forms of taxation and national defence. Authority over criminal
law, penitentiaries, marriage and divorce

4. s92- - provincial Legislatures.

(a) BNA Act 1867 gave provincial legislatures authority over property, common civil rights, common courts,
police, municipal bodies, hospitals and education

iii. Federalist History

1. BNA 1867 - Indications that the framers planned a strong central government. The Act gives the provinces only
enumerated powers to make laws giving the residue of power to the federal Parliament.
(a) s90 allows the federal government to disallow provincial statues (power has not been exercised since 1943)
(b) by s58 the federal government was given the power to appoint the Lt Governor of each province
(c) by s96 the federal government was given the power to appoint judges of the superior, district and county courts
of each province. by s91(29) and 92(10)(c) the federal parliament was given the power unilaterally to bring
local works within exclusive federal legislative jurisdiction simply by declaring them to be “for the general
advantage of Canada” - used for railways and sparingly in recent years.
(d) s93 of the Constitution Act 1867- gives the federal power to enact remedial laws to correct provincial incursions
on minority educational right- has never been exercised and the practice has become obsolete.

2. Judicial Interpretation
(a) Lord Watson 1880-1899 and Lord Haldane 1911-1928. - both believed strongly in provincial rights and
established precedents that elevate the provinces to coordinate status with the Dominion.
(b) They gave a narrow interpretation to the principle federal powers ( the residual power and the trade and
commerce power and wide interpretation to the provincial powers

c. Judicial Review
i. Supremacy Clause- s52(1) is the current basis of judicial review in Canada.
1. s52 Consti Act 1982-any law contrary to provision of the “Constitution of Canada” is “of no force effect”

2. Judicial independence- Elemental constitutional doctrine, closely tied to the separation of powers- ensures that
judges, as arbiters of disputes, are “at a complete liberty to decide individual cases on their merits without
interference” (SCC, Mackin v. New Brunswick). Federalism requires an impartial arbiter to settle jurisdictional
disputes between the federal and provincial orders of government. – Remuneration Reference (1997)

3. Administrative Law Jurisdiction- supervisory jurisdiction with respect to exercises of executive government
authority. Judicial review of exec power is “hallmark” of s. 96 jurix. (Admin-Crevier)

ii. Limitations of judicial review

1. Justiciability: the idea of a sense of lack of fitness of submitting questions to a judicial or quasi judicial
determination.
(a) Operation Dismantle v The Queen (1985) Americans testing cruise missiles in Canada, s.7 challenge-
cruise missile increases the risk of nuclear war. Court held it was ok to consider- no doctrine of political
questions in Canadian constitutional law. If what we are being asked to do is to decide whether any
particular act of the executive violates the rights of the citizens, then it is not only appropriate that we
answer the question; it is our obligation under the charter to do so, but causal link between the actions of

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 the Canadian government, and the alleged violation of the appellants’ rights under the Charter is simply
too uncertain, speculative and hypothetical to sustain a cause of action

2. Enforcement: Cts normally have to rely on the executive and legislative branches of government for the
enforcement of their decisions.
(a) In Doucet Boudreau v NS, the issue of court usurping executive function arose (where the court ordered
the government of Nova Scotia to use its best efforts to build a French Language school to comply with
its duties under the Charter (minority language rights). Periodic reports on its progress was also ordered
[How close is this to the judiciary usurping the role of the executive?]
(b) Reference re Language Rights Under s 23 of Manitoba Act, 1870 (SC, 1985): But In 1890 , the
Manitoba Legislature enacted the Official languages Act which provided English Language only” in
records and journals of the Legislature and in the pleadings and process in the Manitoba courts. Courts
held that Manitoba’s Official Languages Act was unconstitutional 4 times- but legislature didn’t
respond. Re Manitoba Language Rights (1985) SCC confirmed that the failure to comply with s 23
requirement resulted in the invalidity of the purported statue. To conform with rule of law, Court decided
on a drastic remedy – namely allowing the invalid acts to remain law until statutes were translated. The
constitution will not suffer a province without laws- avoiding a legal vacuum in Manitoba and ensuring
the continuity of the rule of law

iii. Steps
1. First function of JR is to enforce the rules of federalism
(a) First step - identify the matter (pith and substance or “characterization”) of the challenged law

(b) Second step is to assign matter to one of the “classes of subjects”.

2. Second function of judicial review is to enforce the Charter restrictions and the other non federal restrictions.
(a) Charter- one identifies the “purpose” and “effect” of an impugned statue infringes charter right.)

iv. Presumption of constitutionality- In choosing between competing, plausible characterization of a law, the court should
normally choose one that would support validity. (Only for federalism, not charter cases.)

1. Rational basis - Where the validity of a law requires a finding of fact ( finding of emergency) the finding of fact
need not be proved strictly by the government. It is enough that there be a “rational basis” for the finding.

2. Reading down
(a) Where a law is open to both narrow and wide interpretation and under the wide interpretation the law’s
application would extend beyond powers of the enacting legislative body, the court should read down the law
so as to confine it those applications that are within the power of the enacting legislative body.
(b) General language of the statue which is literally extending beyond provincial or legislative power will be
construed more narrowly so as to keep it within the permissible scope of power.

3. Severance
(a) Rule- severance is inappropriate when the remaining good part “ is so inextricably bound up with the part
declared invalid that what remains cannot independently survive.”A-G Alta v A-G Can [1947]
(i) Hogg: usually one legislative plan of which all parts are interdependent, so presumption against severance
(ii) Toronto v York [1938] If two parts can exist independently then it is plausible to regard them as two
different laws.
(b) Charter- severance is more common in Charter cases. The same test is applied but it is unlikely that the entire
statue is struck down on Charter rights. Only one case where entire statue was struck down- R v Big M Drug
Mart (1985)

4. Progressive interpretation- Canada didn’t go for originalism

(a) Same Sex Marriage reference (2004). The SCC emphasized the “living tree” quality of the Constitution.
(b) Also purposive interpretation – e.g. R v Van der Peet (1996): defining aboriginal rights.
(c)

v. Interjurisdictional Immunity/Reading down-

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 (a) Limitation on the power of the provincial legislatures to enact laws that extend into core areas of exclusive
federal jurisdiction- Inapplicable (not inoperative, which is paramountcy)
(i) Difficult to distinguish pith and substance (which allows provincial matter to affect federal matter) from
when interjuris immunity should apply (and statute read down)
(b) Federally-incorporated companies- a valid provincial law may not impair the status or essential powers of a
federally incorporated company. John Deere Plow Co v Wharton [1915]
(c) Federally regulated undertakings-undertakings engaged in interprovincial or international transportation or
communication , which come under federal jurisdiction under the exception to s92(10) are immune from
otherwise valid provincial laws which would have “sterilizing” the undertakings
1. Vital part test outdated- Commission du Salaire Minimum v. Bell [1966] – Bell was interprovincial
and was immune from provincial min wage law b/c law affected “vital part” of mgmt and operation.
a. Bell Canada v. Quebec [1988] – bound by Quebec law that required protective reassignment of
pregnant workers? Even though law requiring reassignment of small no. of workers could not
impair operations of undertaking, regulation of labour relations affect vita part of mgmt and
operation of firm and no concurrent provincial jurix

2. New impairment test: Provincial laws may validly extend to federal subjects unless laws “bear upon
the those subjects in what makes them specifically of federal jurisdiction.”
a. Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3 If, the provincial law did not impair core
competence of Parliament, or if a “vital or essential part of an undertaking” would be impaired”
the pith and substance doctrine stipulated that the provincial law validity applied to the federal
subject.
i. If alberta’s insurance act could apply to banks- promotion of insurance by banks was too far
removed from core of banking to qualify as a vital part of the banking undertaking
ii. If provincial law just affected provincial law, no immunity applied – pith and substance
doctrine would prevail enabling provincial law to apply to core of federal subject

d. Characterization/Matter - identify the most important characteristic of the challenged law.

1. What is the dominant feature (the “pith and substance”) of the law?
(a) Bank of Toronto v Lambe (1887)- Privy Council upheld provincial law which imposed a tax on banks.
Domonant feature of law was to raise revenue >> it was “in relation to” taxation” (pith and substance) and
merely “affected” banking. The pith and substance doctrine enables one level of government to enact laws with
substantial impact on matters outside its jurisdiction.

2. General application ok, Singling out frowned on (but not determinative of pith and substance)
(a) Alberta Tax Reference – Privy council struck down Albert law which imposed tax solely on baks, concluded
that pith and substance was to discourage operation of banks in Alberta, taxing quality of law incidental.
(i) Prohibiting the provincial legislatures from “singling out” banks or other federal undertakings for special
treatment.
(b) But some cases uphold singling out - even though the laws singled out a person or class of persons within
federal jurisdiction
1. e.g. Bank of Toronto imposed special rate of tax on banks alone
(c) And some cases overturn general application
1. if the effect of the provincial law would impair the status or essential powers of a federally-
incorporated company, or affect a vital part of the federally regulated enterprise-- will not apply to the
federally-incorporated company or federally regulated enterprise.

3. Double aspect Doctrine

(a) Some laws have both a federal/provincial “matter” -- laws prescribing rules of conduct on the roads have a
‘double aspect” and therefore competent to both Parliament and a Legislature.
(b) A little inconsistent with the stipulation in ss91 ss92 that each list of classes of subjects assigned “exclusively”
(c) Hodge v The Queen (1883) held” subjects which in one aspect and for one purpose fall within s92 may in
another aspect fall within ss91.”
(d) E.g. Provincial driving offenses – relation to road conduct (property and civil rights in province-92-13 or
residual 92-16) and crim code (Mann v. The Queen 1966-upheld crim code)
(i) Provincial Secretary of PEI v Egan (1941)- upheld suspension of drivers license for anyone who was
convicted under fed crim code of drivin impaired – SC held provincial law was in relation to regulation of
highway traffic
(ii) Boggs v. the Queen (1981)- fed crim law - driving w/suspended state drivers’ license – struck down law
b/c cd come from failure to pay provincial taxes
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 (iii) Re BC Motor Vehicle Act [1985] –a law that imposes only a penalty of a fine is not a deprivation of liberty.
(Larmer left open “imprisonment as an alternative to non-payment could be)

(iv)

4. Court will look at purpose, but not efficacy

(a) R v Big M Drug Mart ( 1985)- if the purpose of the statue had not been religious” but rather the secular goal of
enforcing a uniform day of rest from labour” then the Act would have fallen under provincial rather than federal
competence.
(i) Statute was valid federal exercise of crim powers but struck down under Charter, provincial was power
over property and civil rights
1. Cf. R. v. Edwards Books (1986) – Ontario’s Retail Business Holidays ct – valid under s.1
(ii) Statute can have a purpose in a preamble. The legislative history is helpful for interpreting specific
provision of a staute but has been held inadmissible for characterizing the entire statute. Reports of royal
commissions, law reform commissions, government policy papers and parliamentary debates are
admissible.

(b) Effect- a court will consider the effect of the statute – but not dominant consideration, goes more to
colourability
(i) Saumur v Quebec ( 1953)- the judges were influenced by the actual use of the by law. Bylaw made offence
to distribute literature w/o written permission of Chief of police, who used bylaw as vehicle of censorship-
so ct found it was in relation to speech or religion and incompetent to province. They regarded the facts as
to the actual use of the by-law as relevant and admissible on the question of classification.

(c) Efficacy - Re Firearms Act [2000]- Parliament is the judge of whether a measure is likely to achieve its
intended purpose; efficaciousness is not relevant to the Court’s division of powers analysis.

5. No cheating - colourability doctrine

(a) Invoked when a statue bears the formal trappings of a matter within a jurisdiction but in reality is addressed to a
matter outside jurisdiction. The colourability doctrine applies the maxim that a legislative body cannot do
indirectly what it cannot do directly.
(b) Alberta Bank Taxation Reference- although ostensibly designed as a taxation measure, was in reality directed at
banking.
(c) R. v. Mogentaler (1993)- SC- Nova Soctia statute required designated medical procedures to be performed in
hospital, labelled as health measure, but stimulas for statute from legis history was suppressing perceived harm
or evil of abortion clinics- so invalid criminal laws

e. Classes of Subjects
1. Exclusiveness- each class of subjects are listened in ss91 and ss92 of the Constitution Act 1867.

2. But double aspect sometimes, and pith and substance

3. Residual – POGG/Provincial
(a) s91 - “make laws for the peace, order and good government of Canada” relation to all classes not assigned to
provinces
(b) But any matter which does not come within any of the specific classes of subjects will be provincial if it is
merely local or private (s92(16))
(i) Unimportant because the wide scope “property and civil rights in the province” has left little in residue in
local or private matters.
(ii) But s92(16)- Is a possible alternative to a92(13) rather than an independent source of power. Jurisdiction
over highway traffic is provincial but SCC has not confirmed itself to a head of power, noted s92(16) or
s91(13)

4. No ancillary doctrine- but pith and substance doctrine enables a law that is classified as “in relation to”.
(a) The “rational connection test” allows each enumerated head of power to embrace laws that have some impact
on matters entrusted to the other level of government and it provides a flexible standard which gives the
enacting body considerable leeway to choose the legislative techniques it deems appropriate which was applied
(i) Papp v Papp (Ont CA 1970) –upholds custody provisions of federal Divorce Act- asks whether “there is
rational, functional connection between what is admittedly good and what is challenged”
(ii) R v Zelensky ( 1978) – SC upholds crim code authroizing payment of compensation to victim of crime
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 (b) But for a major encroachment it deserves a stricter test- the impugned provision must be essential to the
legislative scheme igation to contribute to support of a juvenile delinquient
(i) General Motors v. City National Leasing (1989)- civil remedy in federal competition statute, rational
connection test – only limited intrusion over power

5. Concurrency- 3 provisions that confer concernent powers

(a) Natural resources - s92A(2) –confers on the provincial Legislatures the power to make laws in relation to the
export of natural resources and s92A(3)- is explicit that power is concurrent with trade and commerce power.
(b) Pensions - s94A confers on the federal Parliament the power to make laws in relation to old age pensions and
supplementary benefits and the sections acknowledges the existence on concurrent provincial power .
(c) Agriculture/immigration- s95- confers power on both the federal Parliament and the provincial legislatures
concurrent powers over agriculture and immigration..

4) Paramountcy
a. Sources: Hogg, chapter 16, “Paramountcy”
i. Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188

b. Federal paramountcy – where inconsistent federal and provincial laws, fed law prevails
i. Provincial law is to say that it is rendered inoperative to the extent of the inconsistency.

c. Levels of inconsistency
i. Express Contradiction - Impossibility of dual compliance (express contradiction)-
1. BC v Lafarge Canada (2007) - where agency wanted to work on a port in Vancouver. Needed consent from federal
government and provincial government. Held- until the city refuses permit, dual compliance is not ‘impossible
here’.
2. Multiple Access v. McCutcheon (1982)- same remedy for insider trading (provincial securities, federal corporate
law)- no conflict- no paramountcy, provincial law good. Duplication is not test of inconsistency.
(a) Double Civil liability – double civil liability is also a possibility under overlapping or duplicative federal and
provincial laws. But in Multiple Access, SC noted that no ct would award damages to a P who has already been
fully compensated.
(b) Cf. Double Criminal Liability- The existence of overlapping/duplicative penal provisions raise the possibility
that person may be liable to conviction under both federal law and provincial law for the same conduct. Nothing
to prohibit under paramountcy doctrine, but s. 11(h) of Charter would apply (double jeapordy).

ii. Frustration of federal purpose- Canadian courts also accept a second case of inconsistency where a provincial law
would frustrate a federal law. Where it is possible to comply with both laws but following the provincial law would
frustrate the federal one, this is also a case of inconsistency.
1. Law Society of BC v Mangat (2001)- federal immigration act provided that a party could be represented by a non-
lawyer in front of refugee board. The BC legal Profession Act stated that non lawyers were prohibited from
practicing law (and appearing before federal tribunals/boards) Compliance with “the federal law would go to
contrary to Parliaments purpose to in enacting the federal laws)-they wanted to establish and informal, accessible,
and speedy process.

2. Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188

(a) Federal Tobacco Act prohibited the promotion of tobacco products, except “a person may display at retail, a
tobacco product”
(b) Saskatchewan Tobacco Control Act banned the display of tobacco products in any premise in which persons
under the age of 18 years of age were permitted.
(c) Court held: the retailer could comply with both laws , either by refusing to admit persons under the age of 18
or by not displaying the tobacco products . Any federal frustration- Courts said no- because the general
purpose of the Tobacco Act (address health problems) and the specific purpose of the permission to display
“remained fulfilled”.

iii. But not Negative implication (tough to differentiate from frustration of purpose)
1. Covering the field- SCC does not infer an inconsistency between federal and provincial laws based on an
imputation that federal law “covers the field’ or carries a negative implication forbidding supplementary law in the
same field. Rio Hotel v NB (1987)
2. But an express covering the field clause would be effective according to Hogg. Example- s88 of the federal Indian
Act provides that provincial laws are inapplicable to Indians “to the extent that such laws make a provision for any
matter for which provision is made by or under this Act”
9
5) POGG
a. Sources
i. Hogg, chapter 17

b. S. 91- Peace, Order, and Good Government” - residual power in its relationship with the provincial heads of power.
1. 3 ways of POGG power: Gap, National Concern, Emergency

c. “Gap” Branch
1. Fill the gaps in the scheme of distribution of power.
(a) I.e.- incorporation of companies s92(11) gives the provinces the power to incorporate companies with
provincial objects). Since there is no equivalent enumerated federal power the courts have held it falls under
POGG power because it is residual in nature.
(b) Jones v. A-G NB (1974)- SC upheld validity of federal official language act- attempted to guarantee equal fr and
English in parliament – since federal institutions and agencies are clearly beyond provincial reach they must be
within fed reach under pogg

d. “National concern branch”

i. Local or provincial legislation could acquire national dimension and come w.i pogg
1. Provincial inability test- One national law which cannot be realistically be satisfied by cooperative provincial action
because failure of one province to cooperate would carry with it adverse consequences for the residents of others
provinces.
ii. R v Crown Zellerbach Canada 1988 - federal jurisdiction over marine pollution.
1. distinctiveness
(a) “an identity which make it distinct from provincial matters and a sufficient consistence to retain the bounds of
form.” – allays concern that national concern branch of pogg will swallow provincial pwers
(b) Majority upheld the federal Ocean Dumping Control Act which prohibited dumping at sea on the basis of
marine pollution was a matter of national concern- marine pollution did have ascertainable and reasonable
limits, in so far as its impact on provincial legislation is concerned. LaForest dissented-he felt the power to
regulate marine pollution thus intruded too deeply into industrial and municipal activity, resource development
and other matters in provincial jurisdiction.
(c) indivisibility clearly distinguishing it from matters of provincial concern
2. the failure of one province to enact effective regulation would have adverse effects of interests exterior to the
province
(a) the scale of the impact on the provincial jurisdictions is reconcilable with the fundamental distribution of
legislative power under the Constitution.
iii. Cf. Insurance Reference
1. POGG Power CANNOT- be used to regulate a particular industry merely because the industry is nation-wide and
important to the national economy.

e. Emergency
i. Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373
1. Federal anti inflation Act was upheld as an emergency measure. Their was a period of double digit inflation and high
rates of unemployment. Problem was the preamble of the Act itself did not recite reasons for the legislation or assert
the existence of an emergency. There was factual material (economic study) which was agreed to by professionals
and not serious challenged.
(a) Important note about temporary charter of law- the anti-inflation reference the legislation was temporary. No
permanent measure has ever been upheld under the emergency power.
ii. War Measures Act – upheld in Wartime Leashold Regulations Reference (1950)- rent control, even after end of WWII
iii. Will only support temporary measures

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6) Criminal Law
a. Constitution Act, 1867, s.91(27)- confers on the federal Parliament power to make criminal laws.
1. Division of powers
(a) Enforced by provinces under 92(14)
(b) Rules of procedure and evicence are federal 91(27)
(c) 92(15) gives provinces power to have penal sanctions for any matter coming within their classes
(i) E.g. Provincial Secretary of PEI v Egan (1941)- upheld suspension of drivers license for anyone who was
convicted under fed crim code of drivin impaired – SC held provincial law was in relation to regulation of
highway traffic

b. Definition- A criminal law must have a valid criminal law purpose backed by a prohibition and a penalty.
i. Criminal Purposes - Prevention of harm to other human beings. Protection of the environment, protection to the cruelty
of animals, various forms of economic regulation has been upheld criminal law.
1. Not Federal Crim
(a) Food standards- Margarine Reference (1951) struck down law banning margarine sale on the basis that the
purpose of legislation was an economic one protecting the dairy industry – property and civil rights in province
(i) If “injurious to health” then no doubt would be a criminal public purpose –and food standards cd be upheld
(b) False labelling - Labatt Breweries v A.G. Can (1971) – no basis for national food standards (light beer) -can’t
be justified under crim (no relation to health with light beer), commerce, pogg – precludes national regime of
compositional standards for food
(c) Drivers license - Boggs v. the Queen (1981)- fed crim law - driving w/suspended state drivers’ license –
struck down law b/c cd come from failure to pay provincial taxes
(d) Civil remedy – MacDonald v. Vapor- section 7e of TM Act prohibited business practices contrary to honest
industrial usage, authroized ct to grant civil relief for breach of this section – property and civil rights.
(i) Cf. Papp v. Papp - pith and substance is divorce, custody (under provincial jurix) is incidental.
1. whether there is “rational, functional connection between what is admittedly good and what is
challenged.” (not criminal issue)
(ii) Cf. R. v. Zelensky (1978)- crim code authroized ct to order accused to pay victim compensation – enforced
by victim as civil judgment
(e) Competition Act- Since economic competition is important and its difficult for provinces to regulate anti-
competitive practices it has been agreed it has to be federal to be effective under trade/commerce power, (civil
remedies allowed to private parties could not be supported under crim power)- - jurix of Competition Tribunal
(w/remedies of blocking mergers, requiring divestitute, other civil stuff) not supported by crim, most of act not
supported under crim,

2. Fed Crim
(a) Illicit drugs
(i) R. v. Malmo Levine- non medical use of drugs such as marihuana, cocaine and heroin is proscribed
-upheld as a criminal law, even though no harm to others, harm can be moral.
(ii) Cf. Schineider v The Queen (1982)-the SCC upheld the BC Heroin Treatment Act- compressive
apprehension , assessment and treatment of drugs addicts. was provincial s92(16). Not criminal because
detention was not for punishment.
(b) Tobacco- RJR-MacDonald v Canada ( 1995)- the SCC held the power to prohibit the use of tobacco on account
of its harmful effects on health also encompassed the power to take the lesser step of prohibiting the advertising
of tobacco products even though legal, within crim power. Protection of public from dangerous product.
(c) Environmental protection – R v Hydro-Quebec (1997)-SCC agreed that the protection of the environment was
a public purpose that would support a federal law under the criminal law power and the Environmental
Protection Act was covered.
(d) Abortion –The CCC used to prohibit abortions. In Morgentaler v The Queen- the validity of the prohibition
was challenged on the basis that the safety of modern techniques of abortion made prohibition inappropriate as
a protection for the health of the pregnant women. –therefore prohibition was not authorized by the criminal law
power but crim power ok to protect state interest in fetus
(e) Religion- In R v Big M Drug Mart (1985)- the SCC confirmed that the Lord’s Day act was a valid exercise of
the criminal law power, because it pursued the religious purpose of preserving the sanctity of the Christian
Sabbith because it was intended to safe guard morality (this was kiss of death under Charter).

11
 (f) Gun Control - In 1995, the federal parliament amended the CC provisions by enacting the Firearms Act
which expanded the existing rules by requiring all guns to be registered and all gun owners to be licensed.
(i) Alberta appealed this act and the SCC held that this was a valid exercise of criminal law power. The
purpose was to restrict access to inherently dangerous things. History had revealed violent crimes, domestic
violence, suicides, and accidents. The court held it was not merely regulatory because if provisions were
enforced by the criminal law means of a prohibition and penalty, because the Act prohibited possession of a
gun without a license and a registration certificate, imposed penalties for breach of the prohibition.
1. Guns were property but incidental to main purpose of public safety

7) Trade and Commerce

a. s92(13) “Provincial power over “property and civil rights in the province”
1. Parsons Case- it has been accepted that intra-provincial trade and commerce is a matter within provincial power,
under “property and civil rights in the province”(s92(13)

b. s91(2) Federal Power over trade over regulation of trade and Commerce
1. Federal trade and commerce power is confined to 1) interprovincial trade or international trade and 2) commerce and
“general” commerce in 91(2)
(a) There is a strong argument that whenever a market for a product is national (or international) in size as opposed
to local, there is a strong argument that effective regulation of the market can only be national but - Canadian
decisions have not gone that far yet like the US.

2. R. v. Klassen (1959)- Wheat Board Act provided for compulsory purchase by Canadian Wheat Bd of all grain
destined for mkts outside province of production, applied to purely local work (feed mill which processed locally-
produced wheat) – thus applied to wholly inerprovincial transaction where main object was to regulate
interprovincial trade

3. Egg market in Re Agricultural Products Marketing Act (1978)- federal marketing was upheld, provinces pt of effort
(a) Provincial statute also upheld, Ct divided fed to inter, province to intra

4. Chicken market in Federation des producteurs v Pelleand (2005) the court upheld a federally imposed quota on
each of the provinces without the regard for the destination of the product.

5. Cf. Beer labelling. Labatt Breweries v AG Can(1979)- another case where the federal trade and commerce power
was rejected as a support for federal legislation.

6. Cf. Dominion

c. General Trade and Commerce

i. Until General Motors- the general category of trade and commerce had been rather consistently rejected as a support for
federal policies of economic regulation.
ii. General Motors v. National City Leasing- Investigation Act ( now the Competition Act) was a valid exercise of the
general trade and commerce power – no longer crim b/c remedies for act were decriminalized. Allowed regulation of
intra-provincial trade.
1. the presence of a regulatory scheme
2. the oversight of a regulatory agency” and
3. a concern “with trade as a whole rather than with a particular industry.
4. ”the legislation should be of a nature the provinces jointly or severally would be constitutionally incapable of
enacting’
5. “the failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful
operation of the scheme in other parts of the competition.

8) Property and Civil Rights

a. Sources:
i. Hogg, chapter 21, “Property and Civil Rights”
ii. BNA- s92(13)- confers power on the Provincial Legislature to make laws in regards to “property and civil rights in the
province”
1. Civil Rights- in s92(13) is used in an older stricter sense- contractual or tortuous rights
2. But trade and comm. (s91(2)), banking (s91(15), bills of exchange and promissory notes (91(18), interest s91(19),
bankruptcy and insolvency s91(21), patents and invention and discovery (s91(22), copyrights s91(23) and marriage
and divorce s91(28)- POGG power in s91 can also deal with matters of property and civil rights
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 b. Insurance
1. Provincial Power-19th century both level of governments started to regulated insurance. a provincial statue is what
brought the first case to court. Citizens Insurance Co v Parsons ( 1881) –the Privy Council helped an Ontario
statue requiring certain conditions be included into every policy of fire insurance entered in ONT. They held
regulation of the terms of contracts came under property and civil rights in the province s91(13) and did not come
within trade and commerce s91(2). several attempts by the federal government to regain jurisdiction had failed.
2. Federal Power – continues to regulate a substantial part of the insurance industry under statues covering British and
foreign companies, federally-incorporated companies and on a voluntary basis, provincially-incorporated
companies. There has no constitutional attack since 1942. The federal statues that include preambles indicating the
powers trade and commerce and aliens and insolvency are relied upon. All the litigation between 1916-1942- the
federal power over “insolvency” (s91(21) was never considered as a possible jurisdiction .

c. Labour Relations
1. Provincial powers- the regulation of labour relations over most of the economy is within provincial competence
under property and civil rights in the province. Unemployment Insurance Reference 1937
2. Federal – there is still a substantial federal presence in this field.
(a) Bell Canada v. Quebec – provincial health law re no monitors for pregnant employees interefered with federally
regulated industry= immunity

d. Marketing
1. Federal Power- federal regulation in grain and oil has been upheld. It is because these goods traveled from province
to province or export could be regulated.
2. Provincial Power-contracts of sale and purchase are prima facie matters within “property and civil rights “(s92(13)
(a) Const. Act 1982 s50 added a new s92A enlarging provincial powers over natural resources. “these apply to non-
renewable natural resources and forestry resources.” –it has no application to eggs or other agriculture products.
(b) But provincial intra regulation ok, even if some effects outside province (Carnation v. Quqbec Agr Mktg. Bd
1968)

e. Securities Regulation 21.10

1. Provincial power- this a matter within the property and civil rights of the province. (there are exceptions federally-
incorporated company can be regulated by both provincial and federal.) The question is in each case, whether a the
degree of provincial control amounts to a denial of an essential attribute of corporate status. (e.g. raise capital)
2. Federal Power- regulation of securities by federally-incorporated companies and authorizes some degree of
regulation of trading those securities. Criminal law can punish deceptive practices. The federal power would not a
regulatory regime in licensing of brokers and discretionary powers in administrative agencies. (corporations act)

f. Foreign ownership- Morgan v AG PEI- a province can control ownership of land. A statue in PEI stated that no person who
is not a resident of the province” could acquire holding of real property of more than a specified size except with the
permission of provincial cabinet. If it was aliens instead of non-residents it may have been federal jurisdiction because
naturalization and aliens s91(25).

9) Charter of Rights and Freedoms

a. Commencement of Charter
i. Any laws enacted before April 17 1982 will have “no force or effect”
ii. Exceptions
1. s13 incriminating evidence that the witness may have given in earlier proceedings. The right may be invoked even
if the earlier proceedings took place before April 17 1982.
2. another example Brenner v Canada ( 1997)- He was born in 1962 that was refused citizenship in 1987 – different
stds for child born of Canadian man vs woman. He challenged immigration laws and won b/c statuts created
condition that continued after 4/17/82.

b. Dialogue with the Legislative Branch

i. R. v. O’Connor – statutory regime for disclosure to accused of confidential records in sexual assault cases, courts had to
balance between the accuser’s right under s 7 to make full answer and defense and the complainants right under s8 right
to privacy and under s 15 equality. After O’Connor, Parliament enacted new laws which were upheld w.o resort to s.1.
The court described this process as a “notable example of the dialogue between the judicial and legislative branches”

13
 ii. Canada v. JTI-Macdonald (2007)- ban on tobacco advertising struck down as breach of freedom of expression too severe
under s.1
1. ct says the fact that its parliament’s response to earlier decision does not militate for or against deference
2. Parliament changed law so that informational advertising ok, shouldn’t be banned - lifestyle advertising and ads to
kids should be specifically targeted. Ct upholds under s.1.

c. Interpretation of the Charter

i. Progressive Interpretation - Since a constitution is difficult to amend and its language is broad to accommodate a wide
range of facts. It calls for a flexible interpretation. Edwards v A.G. (1930) ‘a living tree capable of growth and expansion
within its natural limits. Not originalism.

ii. Generous Interpretation –suitable to guarantee rights

iii. Purposive Interpretation - this involves an attempt to ascertain the purpose of each Charter right and then to interpret
the right so as to include activity that comes within the purpose and exclude activity that does not. (This usually comes
with the generous approach)

1. e.g. R v Van der Peet (1996): defining aboriginal rights.

iv. Process as purpose- “the Charter guarantees the integrity of the political process itself by enhancing “the opportunities
for public debate and collective deliberation. This approach has two advantages. The first advantage is that it supplies a
helpful context for interpreting particular guaratantes. The second advantage of the process-based theory of judicial
review is that it offers a solution to the problem of the legitimacy of judicial review.
1. e.g. free speech is essential to democratic govt

10) Rights
a. Hierarchy of Rights
i. Conflict between rights
1. s25- aboriginal and treaty rights-recognizes the possibility of conflict and provides that the aboriginal and treaty
rights are to prevail against guarantee of equality of races
2. 93 (denominational school rights)- s29 recognizes the possibility of conflict and provides that denominational school
rights are to prevail. (e.g. BNA 93 vs Charter 15- discrimination on the ground of religion))
3. R. v. Keegstra (1990)- hate propaganda offence of criminal code- upheld under s.1, courts didn’t buy argument that
code provision furthered values of racial equality in s.15

b. Who can use?

i. Everyone in Canada – including illegal immigrant in s.7
1. Singh v Minsters of Employment and Immigration (1985) held that anyone who entered the country, however
Illegally, was instantly entitled to assert s7 rights which apply to “everyone.”
2. Deportation and possible torture would usually be a breach of the Charter Suresh v Canada ( 2002)
3. Exterritoriality
(a) R v Cook ( 1998)- American citizen arrested in America for Canadian murder. Argued statement given in US to
Candian police was illegal due in violation to right of counsel. Ct said breach of Charter.
(b) R v. Hape – no breach for search and seizure. Two tests – under s.32 of Charter, only applicable to Canadian
state actors, but not those acting abroad b/c principle of sovereignty will mean that Charter doesn’t apply.
Second question is under s. 7 whether admitting evidence obtained through foreign investigation makes it unfair
– ok here b/c wd not make trial unfair.
(c) Canada v Khadr ( 2008)- Hape reasoning did not apply to this case. Breach of duty of 24(1) of charter to
provide to disclosure to Kahdr of interviews with Canadian intelligence. Hape distinguished b/c Canada
participated in Guatanamo process and breached Genea convention- charter kicked in.

ii. Not available to Corporations

1. s2(a) “Freedom of conscious and religion” in does not apply to corporation, because a corporation cannot hold
religious belief or any other belief.
2. s7 does not apply because it is limited to deprivations of life, liberty and security of person which are attributes of
individuals, not corporations.
3. s9-The right to not be arbitrarily detained or imprisoned
4. s10 arrest and detention
5. s11 (e) the right to reasonable bail because a corporation cannot be detained, imprisoned or arrested.
14
 6. s13 The right to self incrimination
7. s14 the right of a witness to an interpreter

iii. But corps have standing to invoke a right of others under s.24
1. freedom of religion for Sunday selling

c. Who is bound? Not private actors – except indirectly.

i. S32 requires that there must be action by a Canadian legislative body or govt for the Charter to apply.
ii. S32- “Parliament” and “Legislature” make it clear the Charter operates on these powers and any statue enacted by either
Parliament or a Legislature which is inconsistent with the Charter will be outside the power of ( ultra vires) the enacting
body and will be invalid.
1. anybody exercising statutory authority GG, ministers, officials, municipalities, administrative tribunals, and police
officers are all bound by the Charter. ( NOTE- action taken must be within the scope of that authority) – flows down
chain of statutory authority
2. involves a power of compulsion that is not possessed by a private individual or organization.
3. Cf. Schreiber v Canada (1998) A letter sent by RCMP to get information about Swiss Bank accounts against
criminal in Canada. The criminal argued the letter was a breach of the Charter. Held- the letter had no legal affect
and was not subject to the Charter.
iii. Citizen’s Arrest- A private person making a citizen’s arrest under statutory authority is subject to the Charter. R v Lerke
( 1986)
iv. Insurance terms stipulated by law- The Charter was applicable to an automobile insurance policy that excluded common
law spouses from spousal accident benefits-although both the insurer and the insured were private parties, the terms were
stipulated by state. Miron v Trudel [1995]
v. Failure to protect – Vriend v. Alberta (1998)- dismissal from employment, P sues under s.15, Charter violation for failure
to protect gays
vi. Labour
1. Bhindi- a “closed shop” where employer agrees to hire on union workers. Court held that the collective agreement
was a private contract to which the Charter did not apply.
2. Lavigne- SCC held the Charter did apply because the employer was an agent for the province which made the
collective agreement a governmental act. If employer had not been a part of the government then the collective
agreement would be a private contract and the Charter would not have applied.
vii. Not applicable to hospital – Stoffman v. Vancouver (1990)- charter didn’t apply to hospital created by statute since no
compulsion
1. vs. Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624
(a) Charter was applicable despite the absence of any power of compulsion. Issue- Is a hospital bound by a
Charter? The hospital did not provide sign language interpretation for deaf people seeking medical services,
(breach of s15 equality guarantee) The Hospital Services Act funded the hospitals services program so “it was
implementing a specific government policy and program” this contrasted (Stoffman) held the Charter did not
apply to hospitals and their “day-to-day operations.
[Hogg says BS distinction]
viii. Courts- R v Rahey ( 1987) –The SCC had to determine whether a criminal court had denied to a defendant the s
11(b) right to be tried within a reasonable time.

ix. Not Common Law or private actors - vs. US, where NYS v. Sullivan found 1A limited defamation c/a

1. RWDSU v Dolphin Delivery [1986] Where a civil obligation is created by the common law (law of contract) there
will be no Charter remedy because the Charter does not apply to private parties.

x. The Charter can have an indirect impact on private action. - In all Canadian jurisdiction Human Rights Codes have
been enacted that prohibit private acts of discrimination.
1. Blainey v Ontario Hockey Association (1986)- Facts- Human Rights Codes themselves are subject to the Charter
of Rights. Girl who was excluded from Hockey team challenged a provision of the Ont. Human Rights Code- that
permitted single sex sports teams. Usually prohibited discrimination by sex but allowed single sex teams. The
Ontario Court of Appeal held that it was a breach of s15 because it denied to the plaintiff the benefit of the Human
Rights Code by reason of her sex. The effect of nullifying the exception which gave the plaintiff a remedy under the
Human Rights Code. The Charter did not apply to the hockey association but did apply the Human Rights Code.
2. McKinney v University of Guelph (1990)- The Charter can have an indirect impact on private action. A
professor did not want to retire at the mandatory age of 65 so he challenged the law. The university was a private
body so the Charter did not apply. Ontario human rights code permitted the mandatory requirement so he argued the
Code was a breach of s15 age discrimination. SCC held- that it was a breach of s15 but went on to state that it was
15
 justified under s1.

11) Rights Override – s33

a. common rights ( subject to override) s 2, s 7, s8, s9, s10, s11, s12, s13, s14
b. privileged rights ( not subject to override) s3, s4, s5, s6, s 16, s 17, s18, s19, s20, s21, s22, s23, s28
c. Role of section 33
i. s 33 is an override power which enables the Parliament or a Legislature to enact a law that will override the guarantees in
s 2, and s7 to 15 of the Charter. All that is necessary is the enactment of a law contacting an express declaration that the
law is to operate notwithstanding the relevant provision of the Charter.
1. The override provision extends to s2 (expression), s7 to 14( legal rights) and s 15(equality).
2. It does not extend to s3-5(democratic rights), s6 (mobility rights) s16 to 23 ( language rights) or s 28(sexual
equality). No override is possible with these provisions.

ii. Needs express declaration that it is to operate notwithstanding a provision included in s2 or s7-s15-- s33(2)
1. It also must be specific as to the statue and must be specific as to the Charter right which is to be overridden.

iii. Sunset clause which will automatically expire within 5 years. 33(4) permits the express declaration to be re-enacted. The
sunset clause makes Parliament/Legislatures to re think the laws.

d. Examples
i. Ford v. Quebec (Attorney General), [1988] – law banning english language reviewed. SC allows quebec to omnibus
“notwithstanding” amending all statutes, even though doesn’t specify which specific charter rights violated, specific
statutes no mentioned, but no good retroactively (before qubec law passed). In any event, law expired after 5 yrs
ii. Outside Quebec, the power has been used 3 times – e.g. Alberta – law that marriage couldn’t be same-sex

12) Judicial Review of Charter Challenges

a. 2 stage process
i. First stage: Determine whether the challenged law derogates from a Charter right.
1. Characterization of the challenged law
(a) A law will offend the Charter of Rights if either its purpose or its effect is to abridge a Charter right.
(i) Vs. “pith and substance” inquiry is just purpose
(ii) R v Big M Drug Mart [1985] It is very rare that legislative bodies enact laws that have the purpose of
abridging a Charter right. ( Lord’ Day Act)
(iii) R. v. Edwards Book and Art [1986]- purpose was secular purpose to establish uniform pause day for retail
works. Passéd purpose test, effects test- imposed burden on Sabbatarian retailers
(b) Can be servered or read down
2. Understand Meaning of the asserted right.

ii. Second stage: Justified under s. 1 (S-1 – Charter guarantees rights and freedoms…”only to such reasonable limits
prescribe by law as can be demonstrably justified in a free and democratic society.”) (Oakes test below)
1. Proof in s1 analysis
(a) The burden is on the person alleging a breach of the charter. If established, then the burden shifts to the
government rep. who is supporting the law. R v Oakes (1986) The government must persuaded the court the law
is a “reasonable limit in a free and democratic society.”
(b) The standard is proof by a preponderance of probability.

b. S.1 “Prescribed by law” Std.

i. Makes it clear that if the act that is not legally authorized it can never be justified under s1.

ii. Court decisions usually show the 1. the law is accessible & 2. the law is precise.
1. This incorporates two crucial values of the rule of law. 1) The law must be adequately accessible to the public and 2)
law must be formulated with precision to enable people to regulate their conduct by it and guidance to those who
apply it. (not void for vagueness)

2. accessible - statues, rule of common law, regulations will qualify. Irwin Toy v Que [1989]

16
 (a) not accessible- directives, guidelines issued by government departments or agencies. Committee for Cth of Can.
v Can [1991] (airport internal directives)

3. precision - prescribed by law

(a) Irwin Toy v Que [1989] – 3 factors shd be taken into acct when determining whether ad was directed a persons
under 13 yrs, challeneged as void, but ct held it was not practicable to seek absolute precision in a statute
(b) Would fail prescribed-by law test only “where there is no intelligible standard and where the legislature has
been given a plenary discretion to do whatever seems best in a wide set of circumstances.” Irwin Toy v Que
[1989]
(c) Court held prohibitions passed as an “intelligible standard” ( prescribed by law test/precision) on a limit on
freedom of expression:
(i) a prohibition on communicating for the purpose of prostitution Re: s193 and 195.1 CC [1990]
(ii) a prohibition on communicating hatred or contempt towards minorities Can. v Taylor [1990]
(iii) a prohibition on political campaigning by civil servants Osborne v Can [1991]
(iv) a prohibition on the sale of obscene materials, Butler test R v Butler [1992]
(v) a prohibition on tobacco advertising that was “likely to create and erroneous impression” of the health
hazards of tobacco Can v JTI-MacDonald Corp [2007]

iii. Also discretionary exercise of authority will usu. satisfy “prescribed by law” requirement
1. Statue that expressly or by necessary implication authorized a decision that would infringe a Charter right. (Ontario
Film and Video)
(a) Will satisfy the “prescribed by law” requirement if the discretion is constrained by legal standards. Re Ontario
Film and Video Appreciation Society struck down statute b/c censor was given unfettered discretion and statute
did not stipulate criteria.

2. Statute that conferred a discretion in language that was broad enough to encompass decisions infringing a Charter
right although the language did not expressly or by necessary implication authorize infringements of the Charter.
(a) Shd be Read Down so it does not infringe the Charter
(i) Organized police car stops – unfettered discretion conferred by the statue, upheld b/c statute shd be
interepreted to extend to random stops - R v Hufskys (1988)

c. “Reasonably and demonstrably justified” std- “Oakes Test” Dickson CJ

1. Sufficiently important objective: The law must pursue an objective that is sufficiently important to justify limiting
a Charter right.
(a) Ct usu doesn’t object to legislative judgment that the object of law is important enough to limit Charter.
(i) Children - Irwin Toy v Quebec (1998) SCC upheld a Quebec law that prohibited advertising directed at
children under 13. It infringed on freedom of expression but was justified by s1. It had a very low level
generality objective in that it protected children (vulnerable) from advertising.
(ii) French- AG of Quebec v Ford (1988)- Court held: purpose ok, but banning of English had gone too far and
could not be justified under #3.
(iii) Day of rest - R. v. Edwards (1986) – day of rest from work upheld under s.1- provincial law- day for retail
workers. Legis history- day is one to provide pause day.
(iv) Cf. Exclusion from statute- Vriend v Alberta (1998)- the legislation did not protect against discrimination
on the basis of sexual orientation. The breach of the Charter lay in what was omitted from Act. The
province had failed to establish the existence of an important objective that would satisfy the first step of
the Oakes test. The limit then could not be justified under s1 and the omission was unconstitutional.
(v) Cf. Religion- R v Big M Drug Mart (1985)- Is the only one case where the courts rejected the legislative
objective. No Sunday shopping.

(b) Cf. Cost-

(i) Singh v Minsters of Employment and Immig (1984)- Immig argued full hearing would impose an
“unreasonable burden” on the resources of government. It was held that a full hearing right had to be
provided.
(ii) R v Lee (1989)- reducing administrative inconvenience and reducing expense are not, in my view,
sufficient objectives to override such a vital constitutional right.
(iii) Cf. Newfoundland v NAPE (2004)- Binnie J stated-normally financial considerations would not be suffice
but the government was in a financial crisis, so s.15 Charter gender-equity pay was outweighed by s.1.

(c) Shifting objectives

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 (i) R v Big M Drug Mart (1985) – Required Objective to cause the enactment of the law. Rejected the notion that
the purpose of a law might change over time with changing social conditions. Religious motivation when
legislation enacted in 1906, couldn’t now be viewed as secular purpose.
(ii) R v Butler (1992)- anti-obscenity law, original objective was morality, interpreted to mean that objective
had always been the protection of society from the harms caused by obscene materials. Held this was it
promoted sexual equality gave it a “permissible shift in emphasis”. This made the objective into a
generality that could be remain constant over time. Hogg- path around the rule against shifting objectives.
(iii) R v Zundel (1992)- original objective was to protect great man of realm from malicious lies, held that the
prevention of harm from deliberate falsehoods was too general a statement of the law’s objective to allow
“shift in emphasis”. Law struck down.

2. Rational connection
(a) The law must be rationally connected to the objective.(very rare that law is not rationally connect to the
objective
(i) RJR MacDonald v Canada (1995)- Judges will use common sense, reason and logic to determine if a
rational connection exists -- no rational connection between the advertising ban and the objective of
reduced consumption.
(ii) R v Oakes [1986] – Reverse onus clause. Dickson- “There must be a rational connection between the basic
fact of possession and the presumed fact of possession for the purpose of trafficking”. The reverse onus
clause could not satisfy this requirement because it did not make any stipulation as to the quantity of
narcotics in the possession of the accused-possession of a small amount of narcotics does not support
inference of trafficking.
(iii) Benner v Canada (1997)- Mom’s citizenship. It was a breach of equality rights to impose more stringent
requirements for Canadian citizenship on a person born outside Canada before 1977 to a Canadian mother
than a person born outside Canada before 1977 to a Canadian father. Government argued that that it was a
security measure and it was rational to to screen potential citizens in order to keep out dangerous persons.
Court Held: the objective was justified in keeping out dangerous citizens but it was not rational to
discriminate against kids from Canadian mothers as more dangerous as ones from Canadian fathers.

3. Least drastic means- The law must impair the right no more that is necessary to accomplish the objective (most
issues)
(a) In almost any situation it could be easier to come up with a less drastic means -- judges have to allow provincial
legislatures a “margin of appreciation” so provinces can provinces different social objectives. R v Advance
Cutting & Coring [2001]
(b) Overturned
(i) Felony murder rule. R v Valliancourt [1987]-Criminal Code felony-murder rule has been held to be too
drastic a means of discouraging the use of weapons by criminals.
(ii) Ban on English. Ford v Que [1988] Quebec’s prohibition of the use of English in commercial signs has
been held to be too drastic a means of protecting the French language.
(iii) Ban on non-resident lawyers. Black v Law Society of Alta [1989]-Alberta’s rule prohibiting Alberta
lawyers from entering into partnership with lawyers not resident in Alberta has been held to be too drastic a
means of regulating the standards of the legal professions.

(c) Upheld
(i) Reverse Onus. R v Whyte (1988)- upheld a Criminal provision which presumes person in a driver seat -
care and control of vehicle - for the purpose of Drunk driving offences. The reverse onus- was a response to
a pressing social problem and a minimal interference with the presumption of innocence.
(ii) Ban on disclosure of sex victim name- Canadian Newspapers Co V AG of Canada (1988)- court order
banning the disclosure of sexual assault victim so that it would serve the purpose of fostering complaints by
victims of a sexual assault.
(iii) Ban on picketing - BC Gover. Employ. Union v AG of BC (1988)- injunction from picketing at court
because “a picket line ipso facto impedes the public access to justice. The injunction limited freedom of
expression by the least drastic means because the union was free to picket workplaces.
(iv) Limited exemption for Sabbath observers- R v Edwards Book and Art (1986) –Debate abt Ontario law
Sabbatarian exception went far enough b/c exemption for Sat. observers limited o small stores.

4. Proportionate effect- The law must not have disproportionately severe effect. Balancing test – objective of
important law vs. infringement of charter.

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 (a) Hogg believes – restatement of first step, and that it has never been used. An affirmative answer to the 1st step,
(sufficiently important objective,) will always yield an affirmative answer to the 4th step proportionate effect.

13) Freedom of Conscious and Religion s2(a)

a. Constitution Act, 1982, s.2(a) – guarantees to “everyone” the “fundamental freedom” of “conscience and religion.”
i. “conscience-“ R v Morgentaler [1988] protects systems of beliefs which are not theocentric (centered on a deity) and
which might not be characterized as religious for that reason (or for some other reason)

ii. definition of freedom of religion- R v Big M Drug Mart (1985)-Dickson J- “is the right to entertain such religious
beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the
right to manifest religious belief by worship and practice or by teaching or by dissemination.
1. “manifest” - such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest
beliefs and opinions of their own.
2. sincerely held test- Anselem- “all that was necessary to qualify a practice for Charter protection was that the
claimant sincerely believed that the practice was “of religious significance” Religious belief was intensely personal
and can easily vary from one person to another. The test was wholly subjective. Expert evidence was not necessary
because the claimant has to show a sincerity of belief. Even an inquiry into the sincerity of belief was to be “as
limited as possible” Individuals change and so can their beliefs.
(a) Multani v Commission scolaire Marguerite-Bourgeoys (2006) – Sikh boy wants to wear kirpan to school-The
court found that he sincerely believed that he needed to wear it. It was irrelevant that other Sikh’s accept such a
compromise. Oakes test made tried to limit his freedom as possible and made him carry it in a wooden sheath
sewn inside his pants.

b. Protected (struck down)

i. Donald v Hamilton Bd Education [1945]- refusing to salute the flag or sing the national anthem
ii. Saumur v City of Quebec [1953] -distributing proselytizing tracts
iii. R v Harrold (1971)- chanting a mantra
iv. Syndicate Northcrest v Amselem (2004) - building of “succahs” on patios
v. Denominational schools
1. s2(a) requires a province to permit children to be educated outside the secular public system. Provinces do have the
right to regulate alternative schools to ensure core curriculum and standards are met.
2. Protestant and Catholic schools are recognized under s 93 and may receive public funding that is denied to the
schools of religious denominations not recognized by s93.

c. Not protected under s.1 (struck down stautes)

i. R. v. Edward Brooks- even though secular purpose to provide common pause day for retail work, effect was to impose an
economic burden on retailers who closed Saturday, competitive pressure to abandon a non-Sunday Sabbath, but upheld
under s.1.
ii. Young v Young (1993)- Harm to children- Father was not allowed to speak about his Jehovah Witness religion to son
because it caused fights with mother. SCC held- the right to the freedom of religion did not guarantee any religious
activity that would not be in the best interests of the children. But stuck down, b/c not shown in best interest of child.
iii. Blood transfusion - B.R v Children’s Aid Society (1995) Harm to children- parents did not want blood transfusion but
the Children’s Aid Society. Wards did it anyway. Court Held: a breach of their s2(a) right but it was justified under s1. “a
parents freedom of religion does not include the imposition on the child of religious practices which threatens the safety,
health, or life of the child”

iv. Public School Practices

1. Zylbergberg v Sudbury Board of Education (1988)- challenge school opening and closing with “religious exercise
consisting of the reading of the Scriptures or other suitable readings and the repeating of the Lord’s Prayer or other
suitable prayers. Unconstitutional because it “imposed Christian observances upon non-Christian pupils and
religious observances on non-believers.” Even though statute authroized non-christian prayers and readings.

v. Religious marriage
1. Same-sex marriage reference (2004)- SCC was asked by Parliament if it could enact a bill legalizing same-sex
marriage for civil purposes. SCC Held- it could do so under “marriage” in s91(26) of the Constitution Act 1867.
(a) But invalidated provision providing that nothing affects the freedom of officials of religious groups to refuse to
perform marriages that are not in accordance with their religious beliefs.- Ct held ultra vires Parliament b/c
provinc power under s92(12) soleminization of marriage. The court then went on to say the invalid section was

19
 protected by s2a of the Charter. S2a was broad enough to protect religious officials from being compelled by
the state to perform civil or religious same sex marriages that are contrary to their religious beliefs.

d. Waiver of rights
i. Syndicate Northcrest v Amselem (2004) – Succah. The majority brushed aside the argument of their co-owners that the
claimants had waived their religious rights b/c prohibition in condo bylaws. Iacobucci J- wondered whether a religious
practice could be waved at all, he wondered if he by law was sufficiently clear to amount to a waiver.
ii. Bruker v Marcovitz (2007)- the husband refused to a Jewish divorce for 15 years despite K to do so. Court held against
the husband and upheld an award of damages for breach of contract against the husband. Important were “the public
polices of equality, religious freedom and autonomous choice in marriage and divorce.” Outweighed religious rt to
withhold b/c contractual obligation.

14) Freedom of Expression 43

a. s2(b)- Charter of Rights guarantees to “everyone” the fundamental freedom of thought, belief, opinion, and expression,
including freedom of the press and other media of communication.
i. Provincial power over speech -does not extend to the regulation or prohibition of political ideas, does authorize the
regulation of speech on commercial or local grounds. ( ie tort of defamation- provincial jurisdiction-s92(13))

b. Definition
i. Re: s193 and s195.1 SCC has defined “expression”-activity is expressive if it attempts to convey meaning. (Prostitution.)
Excluded is: “purely physical and does not convey or attempt to convey meaning.”
1. Choice of language is protected - Ford v Que [1988]- . “it colors the content and meaning of expression”, “the
freedom to express oneself in the language of one’s choice.

2. Cf. R v Keegstra (1990) Expressive activity that takes the form of violence is not protected by s2(b).

ii. Content neutrality

1. R v Keegstra (1990)- governing principle- “is the content of a statement cannot deprive it on the protection accorded
by s2(b) no matter how offensive it be”

c. Policy
i. Important for democracy - The right of free expression of opinion and of criticism were essential to the working of a
parliamentary democracy such as ours. Switzman v Elbling (1957)
ii. Instrument for truth - On Liberty by Mills and Oliver Wendel Homes argues suppression of opinion is wrong because a
market place of ideas can create the truth with history, social/natural science, medicine and all branches of human
knowledge.
iii. Instrument of personal fulfilment (must include a communicative purpose) or to allow “personal growth and self
realization
iv. Irwin Toy v Quebec (1989)-they embraced all 3 reasons for protecting freedom of expression.
v. R v Sharpe (2001)- instrument of personal fulfilment was discussed by SCC. Child pornography and materials involved
made no contribution to democratic government and made no contribution to search for truth.

d. Upheld under s.1

1. Film censorship. NS Board of Censors v McNeil (1978)- SCC upheld provincial censorship of films on the basis
that the exhibition of films was a business within provincial jurisdiction and censorship was part of a local matter.
The censors board power was thus limited to apply moral standards to the depiction of sex and violence, issues of
primary local significance.

2. Communicating for the purpose of prostitution, upheld under s.1 - Re: s193 and 195.1

3. Border control - Prohibited material can be controlled at the border with customs officials serving as the censors.
The federal Customs Tariff Act used to prohibit the importation of “immoral or indecent” books and magazines. This
was struck down to be too vague.

4. Obscenity

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 (a) R v Butler [1992]- CC: obscenity= undue exploitation of sex. SCC held that prohibition did offend s2(b) --
stated the purpose and the effect of the prohibition was “to restrict the communication of certain types of
materials based on their content.”
(i) But - SCC held that the definition of “obscene” in the CC was a sufficiently clear standard and served
sufficiently justified social purpose under s.1 to serve as the basis of the criminal offence
1. Gloss on harmfulness by caselaw= intelligible std so not void for vagueness

(ii) Held that “undue” exploitation of sex contemplated material that:

1. 1. portrayed explicit sex with violence or
2. 2. portrayed explicit sex without violence, but in a degrading or dehumanizing manner by “placing
women and ( men) in positions of subordination, servile submission or humiliation.” These forms of
pornography, when not required by the internal necessities of a serious work of art, were intolerable to
the Canadian community, “not because they offend against morals but because they were perceived by
public opinion to be harmful to society, particularly women.”

5. Porno
(a) The expression cases in the SCC make clear that porn, including obscenity, is protected expression in Canada.
Pornography, however defined, can only be identified by reference to the content of the challenged material.
Since there is no content-based restrictions on s 2(b) it follows that pornography is covered by the guarantee.
(b) R v Sharpe (2001)- child porn- challenge on the constitutionality of the CC offence of possession of child
pornography. Child porn was defined as a picture of a child engaged in explicit sexual activity, a picture of a
child’s sexual organ or anal region and written material that advocated sexual activity with a child. Held-
followed Butler test and “a found a reasoned apprehension of harm, and that was enough.” Once harm to
children was inferred and failed the Oakes test.

6. Hate propaganda, upheld under s.1 (but not false news) - R v Zundel (1992)
(a) Canada v Taylor (1990) Defiance of ct order involving anti-Semitic phone messages. If this order has been
made, it can made as an order for the federal Court and then disobedience is then punishable by contempt of
court. Jail justified under s.1.
(b) R V Keegstra (1990) - teacher/ anti Semitic – The court rejected there were any content based restrictions on the
s2 (b) right. s2 (b) covered all message “however unpopular, distasteful or contrary to the mainstream.” The
court upheld the law under s1. Successful because it was specifically directed at the wilful promotion of hatred
against identifiable groups and it was easy to accept the prevention of harm caused by that activity was an
important objective.
(c) R v Zundel (1992) false or truths - the CCC used to contain a prohibition of spreading false news. The SCC
decided that the deliberate spreading of falsehoods as well as truths, because the question whether a statement is
true or false can be determined only by reference to the content of the statement was protected s 2(b). The false
news offence could not be justified under s1. false news struck down because statute did not specify any
particular type of statement and did not specify what type of injury to the public interest was contemplated.
False news was so broad it was hard to that it was difficult to identify an objective that was sufficiently
important to justify the limit on the freedom of expression.

7. Assemblies. AG Can and Dupond v Montreal (1978)- SCC upheld Montreal by-law that imposed temporary
prohibition on assemblies, parades, and gatherings on municipal parks and streets. Beetz “regulation of municipal
pubic domain was within the provincial power over local matters. (s92(16)) “none of freedoms of speech, assembly
and association of the press/religion is a single matter coming within exclusive federal or provincial competence

8. Professionals advertising- lawyers, doctors and dentists are typically subject to restrictions on advertising on a
varying degrees of stringency. The object is to maintain the dignity of a learned profession.
(a) Cf. Heavy restrictions on professional advtsg- Rocket v Royal College of Dental Surgeons (1990)- the
regulation prohibited a dentist from advertising office hours and languages spoken. “information which would
be useful to the public and present no serious danger of misleading the public or undercutting professionalism”.
The court struck down the regulation.

9. False/bad advertising
(a) Canada v JTI –Macdonald Corp (2007) court upheld prohibition of false, misleading or deceptive advertising
products. This activity was protected by s2(b) but because false advertising of products bad for health were
harmful to health was of “low value” and the prohibition was justified under s1.
(b) Irwin Toy v Quebec (1989)- the court upheld a law that restricted advertising to 13 year olds. It was justified
under s1.
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10. Forced expression re tobacco warnings
(a) RJR MacDonald v Canada (1995) Sometimes people are forced to make a statement. –Made cigarette
companies to sell cigarettes to display prescribed warnings of the health dangers of smoking. This was a breach
of s 2(b) on the “basis that the freedom entails the right to say nothing or the right not to say certain things” the
government had failed to establish the jusitification for non-attribution of warnings, so new statute had
cirgarette co’s attribute warnings to Helath Canada

(b) Canada v JTI Macdonald Corp (2007)- a new warning enforced by the Tobacco Act was required to occupy
50% of the package. It was found to have infringe s2(b) but was justified by s1.

11. Ban picketing laws

(a) The purposes of picketing are: a) advise the public that picketers are on strike b) to dissuade strike breakers
from entering the workplace c) to encourage consumers to boycott the goods or services produced by the firm.
d) intended to bring economic pressure on employer. There is also a communicative element to picket lines and
its best probably regarded as commercial expression. The picket line may also convey implicit or explicit or
even explicit political message.
(b) Secondary picketing, private parties - Dolphin Delivery Case (1986)- union challenged the constitutionality
of a injunction that had been issued in BC prohibiting the union from picketing at a workplace that was not their
employer. SCC held that the Charter of rights had no application between private parties governed by common
law. (it constituted the tort of inducing a breach of contract). McIntyre J went on to state that a prohibition on
secondary picketing would be justified under s1 as a measure to prevent industrial conflict from spreading
beyond the parties in dispute.
(c) Picketing courts- Vancouver Courthouse Case (1988) without notice to the union issued an injunction to
prohibit the picketing of the courts. The basis of the injunction was the offence of criminal contempt. SCC
turned down an application to have injunction removed. There was a legal basis that their actions was a criminal
contempt for court. SCC held that the injunction was limiting the freedom of s2(B) but was justified under s 1
“assuring unimpeded access to the courts”.
(d) Cf. Struck down- UCFW v Kmart Canada (1999)- secondary sites with just leaflets union wanted to peacefully,
without picketing, handout leaflets at a “secondary Kmart”. Court held that the prohibition of this form of
expression was not justified by the legislative goal and was therefore unconstitutional.
(e) Cf. Pepsi-Cola Canada Beverages v RWDSU (2002)-secondary sites, no regulation- unlike the Kmart case,
union members were picketing at secondary sites and at places where Pepsi was being sold. And unlike the
Kmart case where the BC Labour code regulated secondary picketing, Saskatchewan Labour code did not.
Held-that picketing secondary shops peacefully did not peaceful and did not involve the commission of a crime
or tort. However, picketing homes of the management personal amounted to the tort of intimidation.

12. Defamation
(a) Tort of defamation provides a civil remedy for a person whose reputation has been damaged by false statements
made by the defendant. Canada is out of step for the rest of the common law world in its failure to restrict the
right of public figures to sue for defamation.
(b) Hill v Church of Scientology (1995) SCC refused to alter the common law defamation to protect criticism of
officials. The common law of defamation represented an accommodation between competing values of personal
reputation and freedom of expression. The court held that false and injurious statements were not deserving of
much protection. Reputation, although not explicitly connected to the Charter. Cory J concluded that the law of
defamation was not “unduly restrictive or inhibiting”. High damages awards to increase the incentive for
caution in criticizing or reporting the activities of public officials but does not involve the media or political
commentary about public policies. No cap on punitive, odd b/c cap on personal injury suits. Dicta left open door
for qualified priv.
(c) WIC Radio v Simpson (2008)- Host of radio show criticised guest on air implying that she would condone
violence against homosexuals. This was false and injured the reputation of the plaintiff, making it defamatory.
However, Mair comments were opinion and not fact. Therefore, no demonstration of truth was called for and
the defence of fair comment was available.
(i) More forgiving to statements of opinion (or comment) about individuals in the public eye than it is to
statements of fact.
(ii) The defence of “fair comment” as long as the opinion is :
1. based on facts
2. is related to the matter of public interest and
3. is one that an honest (but not necessarily reasonable ) person could hold.

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 13. Deliberate falsehood- R v Lucas (1998)- deliberate falsehoods were protected by s2(b). At issue was the
constitutionality of the CC offence of defamatory libel, which made it an offence to publish material that was known
to be false and that would expose the victim to hatred, contempt and ridicule. However the court upheld the
prohibition against this with s1.

14. Access to Ct
(a) Re Vancouver Sun 2004- The SCC reviewed a “judicial investigating hearing” that had been held by camera
( closed to public) by a superior court judge The presiding judge closed the hearing to the public and the press.
The Vancouver sun appealed after having their application refused to the SCC. The SCC emphasized test- that
the “open court principle” was guaranteed by s2(b) of the Charter. It could be limited under s 1 -applied to
orders limiting access to court proceedings are: 1. that the order is ‘necessary in order to prevent a serious risk
to the proper administration of justice because reasonable alternative measures will not prevent the risk’ 2. that
‘the salutary effects of the order outweighed the deleterious effects on the rights and interests of the parties and
the public.
(b) In CBC v New Brunswick (1996) – freedom of press includes rt to media to have access to ct proceedings. the
judge excluded the public and the media from part of the sentencing hearing of a prominent citizen who had
pleaded guilty to various sexual offences involving young girls. The exclusion order covered part. have of the
hearing detailing the acts and committed by the accused and it remained in force for about 20 mins. SCC
upheld the provision- It was a breach of s2 (b) was upheld by s1. Parliament was pursuing an objective in
providing a power to make an exclusion order when openness would be inimical to the administration of justice
and because the power was discretionary the provision was no broader than necessary.
(c) Re: Southam and the Queen (No.1) (1993) –Ontario court of appeal had to consider the validity of s12.1 of the
Juvenile Delinquents Act which provided that “the trials of children shall take place without publicity” The
phrase “without publicity” had been challenged by a newspaper company claiming the freedom of expression
entailed a right to access the courts. The court upheld the newspapers claim and struck down the closed courts
provision. The court acknowledged that in some cases the interests of the child would justify restrictions on
press access to trial, but the court held that an absolute ban could not justify under s 1 because it did not
pursue the “least restrictive means” of attaining its objective.
(i) Young offenders act.- Criminal Code- “provides that proceedings confer on the trial judge the power “to
exclude all or any members of the public from the court room for all or part of the proceedings” The power
can be exercised when a trial judge forms the opinion that access should be restricted in the interest of “the
proper administration of justice”.

15. Voting
(a) Right to vote is guaranteed by s3 of the Charter but the right is limited to elections of the members of
the federal House of Commons and of the provincial legislative assembly’s.
(b) Haig v Canada (1993)- A Canadian citizen who had slipped through the cracks of the residency requirements
found himself unable to vote in a federal referendum to approve amendments know as the Charlottetown
accord. Being unable to rely on s3 he argued that the failure of the federal parliament to make provision for him
to vote was a breach of freedom of expression, guaranteed by s2(b) of the Charter. The SCC had agreed that the
casting of the ballot in a referendum was a form of expression but went on to hold that s2(b) does not impose on
the federal/provincial governments a positive duty to consult citizens by referendum. No right to vote in
referendum!

e. Rejected under s.1

i. Time, manner and place - Ramsden v Peterborough (1993)- non profit groups complained because a by-law closed off
obvious places to place posters. The SCC had taken this into account and held the by law was too broad and interpreted in
a narrow targeting legitimate concerns “littering, aesthetic blight, traffic hazards, and impediments to persons repairing
utility poles.

ii. Application - Little Sisters Book and Art Emporium v Canada (2000)- gay and lesbian communities in Vancouver –
upheld obscenity std but said biased implementation against gay literature no good
1. Border Control by federal Customs Tariff Act uses the same definition of obscenity as the CCC. Bookstore
challenged Butler test and customs. SCC said it was not inappropriate to use a single community standard of
obscenity, pointing out that the Little Sisters bookstore was open to the public. The butler interpreted definition of
obscenity in the legislation targeted harm in the form of violence, degradation and dehumanization that occur in the

23
 context of homosexual as well as heterosexual relationships. The definition was indifferent between homo’s and
hetros.

iii. Sign restriction- R v Guignard (2002)- a municipal by-law in Quebec prohibited advertising signs and billboards except
in industrial zones of the municipality. The municipality attempted to justify the by-law as a reasonable limit that was
designed to prevent visual pollution and driver distraction. Held- the law was arbitrary, and not a reasonable solution and
a disproportionate to any benefit that it secures for the municipality.
1. Vann Niagra v Oakville (2003)- SCC accepted a by-law that banned “billboard signs” throughout the municipality.
The law clearly stated that ground signs must be less than 80 square feet. Court felt this left room for commercial
expression with smaller signs and that larger signs may likely cause distraction to motorists and visual blight.

iv. Access to public property

1. Ramsden v Peterborugh (1993)- SCC struck down a municipal law by-law that prohibited the placing of posters “on
any public property” within the municipality. Iacobucci J- recognized that the municipality objectives in enacting
the by-law, which are reduce littering, aesthetic blight, traffic hazards and hazards to persons engaged in the repair
of the utility pole and justify some limitations on s2(b). However, the complete ban on postering on all public
property was a broader than necessary to accomplish goals. The by-law failed the least dramatic-means requirement
of s1.
2. Cf. Montréal (City) v. 2952-1366 Québec Inc., - strip club with a loud speaker on the street broad casting the show
and music. The club was charged with a city by-law prohibited noise from sound equipment heard on the street. The
by-law did not contain language stipulating any particular level of noise or any disturbance of neighbours or
passerbys. McLaclin CJ and Deschamps J- interpreted the by law as applying only to “noise that adversely affects
the enjoyment of the environment”
(a) Test: 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 s2(b) is intended to serve,
namely 1. democratic discourse 2. truth-finding 3. self fulfillment.
(i) To answer the question it was necessary to consider the “historical function” of the place, the “actual
function of the place” and “whether other aspects of the place suggest that expression within it would
undermine the values underlying free expression”
(ii) In this case, the streets “are clearly areas of public, as opposed to private, concourse where expression of
many varieties has long been accepted.” Therefore- the clubs broadcast expression was protected by s2(b)
but went on to hold the bylaw was justified under s1 despite lack of stds over levels or effects of noise

v. Restrictions on reporting news of trials

1. s2(b) expressly provides that freedom of expression includes “freedom of the press and other media of
communication.”
2. Edmonton Journal v Alberta (1989)-press reports on matrimonial lititgation- the SCC struck down an Alberta statue
that prohibited (with limited exceptions) press reports of matrimonial litigation. The court held that the statue
violated s2 (b): “the courts must be open to the public scrutiny and to public criticism of their operation by the
public” With s1- the courts agreed that the protection of the privacy of individuals engaged in matrimonial litigation
would justify some limits on the right to report judicial proceedings. It was found the ban to be too wide and cannot
be justified under s1.
3. Dagenais v CBC (1994)- Superior Court had granted an injunction prohibiting the CBC from broadcasting a TV
show called the “The Boys of St Vincent” The publication ban did not apply to reports of judicial proceedings
because the programme was a fictional one. The injunction was granted to 4 priests who argued under the common
law power to prevent “a real and substantial risk of interference with fairness of the trial.” and limited to the period
of the four trials. SCC then: held the common law rule put too much weight to the right to a fair trial and no
enough weight to freedom of expression. Since it was a limit on freedom of expression, the injunction had to be
justified under s 1 of the Charter by reference to the Oakes test. The found that “reasonably available alternatives
measures” would not prevent the risk of the fairness of the trial. Alternative measures were “adjourning trials,
changing venues, sequestering jurors, allowing challenges for cause and voir dires during jury selection and
providing strong judicial direction to the jury. The injunction was not justified.
4. Cf. Canadian Newspapers Co v Canada (1988) reports on the identity of sexual assault victim-CCC made a
provision for court order prohibiting the media from disclosing the identity of the complainant in a case of sexual
assault. The purpose was to foster complaints. The order was mandatory if requested by the complainant or
prosecutor. SCC held that the CC section was valid. Although it limited the press under s2(b), it was justified under
s1. The mandatory ban did not limit the right excessively, because it provided assurance that the complainant that
her identify would be protected where discretion would not.

vi. Public Service

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 1. The entire public service is a professional career service that serves governments of all governments with equal
diligence, and should be impervious to partisan political considerations in the administration of government
programmes.
2. Osborne v Canada (1991)-federal public servants attacked provisions in the federal Public Service Employment Act
that prohibited them from “engaging in work” for or against a candidate for election to Parliament or for or against a
federal political party. SCC held-that the act did limit freedom of expression under s2(b) and that it was not justified
under s1. This did not pass the least dramatic means test because the Act was over-inclusive. A narrower prohibition
would have been sufficient to protect the value of neutrality with less impact.
3. Baier v Alberta (2007)- question of whether Alberta could enact a law that disqualified teachers and other employees
of school boards from serving as trustees of school boards. The SCC held- upheld the law. The law did not prevent
the teachers from expressing opinions on any issues relating to education (or anything else) its purpose was to
prevent them to be serving on school boards b/c conflicted since they were labor

vii. Elections expenditures

1. Third party( not candidates)
(a) Spending limits on “election expenses” were imposed by the Election Canada Act. Election expenses are
defined as money paid “for the purpose of promoting or opposing...a particular registered party or the election
of a particular candidate.
(b) National Citizens Coalition v AG Can (1984)- prohibition against third party spending was a breach and was
not justified under s1. The prohibition was struck down.
(i) Then 1993 Parliament amended the Elections Act replacing the third party spending prohibition with a
spending cap. Third parties were permitted up to $1000.
(ii) This cap was then struck down in Somerville v Canada (1996) as a breach of the freedom of expression.
(iii) The 2003 Parliament then amended it from $1000 to $150,000 of which no more than $3000. could be
incurred by a single electoral district. This new national limit was less than half the cost of a one page full
page advertisement in major Canadian newspaper.
(c) Harper v Canada (2004)- the SCC held: yes they are. No evidence that the voices of the wealthy drowned the
others the court found the prevention of this evil was the objective of the legislation and this objective was
sufficiently important to justify a limiting freedom of expression.
(i) Did this statutory restrictions pass the least dramatic means test of the Oakes test? SCC majority held: the
restrictions did not go too far. They allowed third parties to make modest means of advertising “to inform
the electorate of their message in a manner that will not overwhelm candidates, political parties or other
third parties.”

2. Spending during referendums: SCC also had to look at third party spending during a referendum. Quebec
Referendums Act –that when a referendum was held in the province each side of the campaign had to organize into
yes or now committees. No expense could be incurred by outside of these two committees.
(a) Libman v Quebec (1997) - the court held it was a breach of freedom of expression and was not justified under s
1. It failed the least dramatic means test because it left no room for people who may want to argue for
abstention.

viii. Right to equalize payments

(a) Hogan v Newfoundland (2000 Newfld CA) - a referendum was held by the Government of Newfoundland to
amend the constitution to take away financial support to denomination schools. 72% said yes. Roman Catholic
supporters opposing the amendments seek compensation because the government had spend more on the YES
side then they did on the NO side. The argued that the government was under a constitutional responsibility to
equalize payments for both sides. trial judge awarded demands but decision was reversed in appeal. Rt to
freedom of expression did not demand spending limits- the fact the government spent more did not breach the
no sides right. Amendment enacted by Canadian Parliament to Const Act 1982
(b) Native Women’s Assn of Canada v Canada (1994) argued that the Government of Canada had denied their right
to freedom of expression by providing funding /consulting with to other aboriginal groups but not to the NWAC
over the Charlottetown accord. SCC held that: according to the principle in the Haig Case- “generally the
government is under no obligation to fund or provide a specific platform of expression to an individual or
group.”

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15) Life Liberty and Security of Person

a. S. 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
i. Two right version
1. 1. a right to “life, liberty and security of the person” that is unqualified except by s1 of the Charter and
2. 2. a right not to be deprived of life, liberty and security of person except in accordance with the principles of
fundamental justice.
3. This two rights interpretation is supported by an English version but not by the French grammatical version of this
section.

ii. s7 does not include property and does not include the determination of rights and obligations respecting economic
interests.
1. Thus s7 affords no guarantee of fair treatment by courts, tribunals or officials with power over purely economic
interests of individuals or corporations – see Authorson
2. But s8, protects property from unreasonable search or seizure

b. Canadian BoR – Statute still in force, property- continues to apply to federal (not provincial laws)
i. s1(a)- guarantees the right of the individual to life, liberty and security of person and enjoyment of property, and the right
not to be deprived thereof except by due process of law...
ii. The Canadian Bill of Rights s2(e)- provides that no law of Canada is to be construed or applied so as to: deprive a person
of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights
and obligations...
1. Authorson v Canada (2003)- Veteran challenged a provision in the federal Department of Veterans Affairs Act that
barred any claim to interest on moneys held by the Department on behalf of disabled veterans. The plaintiff became
competent and the dept. paid him money that was owed to him which had accumulated over a 40 year period. No
interest was paid on it. Plaintiff sued for interest. plaintiff invoked s1(a) and s2(e) of BoR- plaintiff argued that he
had been deprived the “enjoyment of property” without “due process” because parliament had take his right away to
a fair hearing. The SCC denied relief.:
(a) s1(a)- Court refused to impose any additional procedural obligations on Parliament “ the only procedure due
any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons
and that it received a Royal Assent Court. Ct also refused to interpret s1(a) as imposing a substantive obligation
to provide compensation for expropriated property.
(b) s2(e) didn’t right to a “fair hearing” on parliament

c. Fed/Provincial
i. s91(27) Consti Act 1867- are the federal powers in relation to criminal law or criminal procedure. (various stages of
arrest, trial, acquittal or conviction and sentence are federal)
ii. s92(14) Consti Act 1867- giver provincial authority over the administration of justice. This includes the constitution of
criminal and civil courts, civil procedure, and extends to some aspects of the investigation and prosecution of crime.

d. Who?
i. s7 is applicable to “everyone” a word that is normally apt to include a corporation as well as an individual.
1. Immigrants
(a) Singh v Minster of Employment and Immigration (1995) “everyone” includes immigrants to Canada. Wilson J
said that s7 right could be asserted by “every human being who is physically present in Canada and by virtue of
such presence amenable to Canadian law.
(i) This means that immigrant who claimed refugee status was entitled to a hearing before an official or
tribunal to determine their case. Arguing that this would be too expensive or a strain on the system was
rejected by the court.

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 2. Not Corps- Irwin Toy v Que [1989] - SCC held that the context of s7 “everyone” does not include a corporation
because an artificial person (a corporation) is incapable of possessing “life, liberty or security of person” because
these are attributes of a natural person.
(a) But Corp permittd to rely on s. 7 defence to crim charge if avail to individual – can challenge law for
overbreadth

3. Not foetues- R v Morgentaler (No 2) “everyone” in s 7 does not include a foetus and so a foetus is not entitled to a
right to life. The SCC had in fact used s7 to strike down restrictions on abortion because it infringed the security of
the person of the mother.

e. Life
i. Chaoaulli v Que [2005]- The SCC held- that excessive waiting times for treatment in the public health care system of
Quebec increased the risk of death, and were in violation of the right to life (as well as security of the person).

f. Physical liberty
i. Re: ss 193 and 195.1 CC -“Liberty” includes freedom from physical restraint. Any law that imposes the penalty of
imprisonment, whether the sentence is mandatory or discretionary is by virtue of that penalty a deprivation of liberty and
must conform to the principles of fundamental justice
1. R v Beare [1988]- statutory duty to submit to finger printing and imprisonment are deprivations of liberty.
2. Stelco v Can [1990]- to give oral testimony a deprivation of liberty
3. R v Heywood [1994]-to not loiter in or near school grounds, playgrounds, public parks and bathing areas is a
deprivation of liberty.
4. Change in sentence
(a) Cunningham v Canada (1993)-the amended Parole Act cancelled the conditional release (under mandatory
supervision) and required the continued detention of the prisoner for the rest of the prisoner’s sentence. SCC
held that- although the amendment of the Parole Board had not lengthened the defendants 12 year sentence it
had altered the manner in which the sentences was to be served. (Serving time on mandatory supervision
was a lesser deprivation of liberty that serving time in prison.) This change in the law should be treated as the
deprivation of liberty interest making s 7 applicable. However, the court went on to hold that it was not a breach
of the principles of the fundamental of justice. The defendant remained in prison.
(b) May v Ferndale Institution (2005)- the court reviewed a decision by the correctional service to transfer a
prisoner to a min. security prison to a medium security prison. Court followed Cunningham and held the
decision to transfer the prisoner was a deprivation of his “residual liberty” so s7 applied. The court held the
failure of the Correctional Service to fulfill a statutory obligation to provide information as to the reasons of
the transfer was not important. (Stinchcome rules of disclosure did not apply outside criminal proceedings
where the innocence of the accused was at stake.) It did make it unlawful so the prisoner was sent back to min
security.

ii. But not:

1. Re BC Motor Vehicle Act [1985] –a law that imposes only a penalty of a fine is not a deprivation of liberty.
(Larmer left open “imprisonment as an alternative to non-payment could be)
2. Buhlers v BC (1999)-the suspension of a driver’s license is not a deprivation of liberty.
3. Medovarski v Canada [2005]-the deportation of a non-citizen is not a deprivation of liberty, attracting the rules of
fundamental justice because a non-citizen has no right to enter or remain in Canada.
Unless detetention as part of process (Charkaoui) or deportation to torture (Suresh), refuge claim (Singh)

g. Other Liberties
i. Fundamental personal choices - Blencoe v BC (2000)- Bastarache J- “asserted that liberty in s 7 is no longer restricted
to mere freedom from physical restraint”; it applies whenever a law prevents a person from making “fundamental
personal choices.”
1. Mr Blencoe’s liberty had been impaired because of the unreasonable delay he waited for the BC Human rights
Commission took in disposing sexual harassment charges against him. Court held:”in these circumstances, the state
has not prevented [Mr Blencoe] from making any fundamental personal choices.”

ii. Economic Liberty

1. banish Lochner v NY from Canada (freedom of contract)
2. Re ss 193 and 195.1 CC (Prostitution reference)- s7 –liberty must not be interpreted to include property, not
including freedom of contract and not including economic liberty. right to work? the regulation of trades and
professionals should be regarded as restrictions on economic liberty that are outside the scope of s7

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 3. Gosslin v Que per Larmer J- “ the restrictions on liberty and security of the person that s7 is concerned with are
those that occur as a result of an individual’s interaction with the justice system and administration. “ –
4. R v Edwards Books and Art [1986]-liberty does not include the right to do business, by selling goods on Sunday.

h. “Security of Person”
1. Hitting kids. Canadian Foundation for Children, Youth and the Law v Canada (2004)- challenge on a defence in the
CC which provides that a teacher or parent can use “reasonable” force “by way of correction” against children in
their care. This exposed children to what amounted to assault. Court held:- had no difficulty in finding that the
provision adversely affected the security of person of the children to who it applied ( The court upheld the provision
on the ground that there was no breach of the principles of fundamental justice.
2. Abortion—to mom. R v Morgentaler (no.2)- SCC held that CC restrictions on abortion which required that an
abortion be approved by a therapeutic abortion committee of an approved hospital were unconstitutional. Evidence
showed that hospitals would not set up the required committees and caused delays in treatments which increased the
risk of health to the mother. Held- The risk of health that was caused by the law was deprivation of security of the
person.
3. Right to buy private health ins.- Chaoulli v Quebec (2005) SCC held that excessive waiting times in the public
health care system of Quebec caused unnecessary pain and stress to those waiting surgery and other medical
procedures. This was a breach of the right to security of person (as well as right to life, since the risk of death was
sometimes increased by prolonged delays.
(a) Facts- Quebec law forbade the purchase of private health insurance. The law was designed to make the public
health system exclusive. All 7 judges were unanimous that the law caused a breach of security to person, there
was an even 3-3 split on whether the law was a breach of the principles of fundamental justice under s7. Bans
on the purchase of private insurance or other impediments to access to private health care exists in other
provinces and territories, but it will take another case to determine whether they are a breach to the Charter.

i. Security- beyond health and safety

1. Psychological integrity of parent.. New Brunswick v G.(J) (1999)- the SCC held an application by the state to
remove children from a parent and place them under the wardship of the state affected the security of the person of
the parent. Security of the person was affected because the government action would constitute “a serious
interference with the psychological integrity of the parent.” s7 was applied and the removal proceedings had to be
conducted in accordance with the principles of fundamental justice.
2. Blencoe v BC (2000) – SCC held- that state induced psychological stress would be a breach of security of the
person, but decided that the Commission’s delays did not have a sufficiently severe impact on the applicant
psychological state to qualify the breach. (stress came from other sources under facts).
3. Gosselin v Quebec (2002)- it was argued that s7 imposed on government a positive obligation to provide adequate
welfare benefits to those who were without other sources of income. Her challenge was on age discrimination s 15
and on s7 and she failed on both grounds. Court held s.7 has not been extended to economic rights nor has it
been interpreted as imposing positive obligations on the state to ensure that each person, enjoyed life, liberty or
security of the person.

16) Fundamental justice

i. Definition
1. BC Motor Vehicle Reference (1985)- principles of fundamental justice are to be found in the basic tenets of the
legal system”, “those words (fundamental justice) cannot be given any exhaustive content or simple enumerative
definition but will take on concrete meaning as the courts address allege violations of s7”

2. R v Malmo-Levine (2003) marihuana- court created 3 requirements for a rule to qualify as a basic tenet of legal
system and therefore as a principle of fundamental justice .
(i) a “legal principle”.
(ii) “significant societal consensus that is fundemenal to the way in which the legal system ought to fairly
operate.”
(iii) rule must be capable of being “identified with sufficient precision to yield a manageable standard.

ii. BC Motor Vehicle Reference - The SCC held that fundamental justice did indeed cover substantive as well as
procedure justice b/c:
1. words “fundamental justice” are literally broader in scope than other formulations that could have been used such as
natural justice.
2. expansions of the concept of fundamental justice has the effect of expanding the protection of life, liberty and
security of person

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 3. s7 is a kind of residuary clause for all legal rights. s8-14 are merely “illustrative” of deprivations of fundamental
justice that could be easily be caught by s7 since s8-14 go beyond merely procedural guarantees it follows that s7
also must go beyond a merely procedural guarantee. (Hogg: this reason is dubious)

iii. Basic Tenets of Legal System

1. Yes- R v Parker (2000)- absolute prohibition that threatened health was breach of fundamental justice -
marihuana for medical use Could possession be prohibited for those who had medical use for the drug? –Ontario
Court of Appeal answered no. The possession of marihuana could not be prohibited (with imprisonment as a
possible penalty) if the prohibition did not include an exception for those with medical needs. Court suspended for a
year and the federal government responded with Marihunana Medical Access Regulations.
2. Not Harm to Others Principle- The SCC held that the harm principle did not satisfy the 3 requirements.
Therefore Parliament was open to impose a sentence of imprisonment for crimes that did not involve harm to others.
(cannibalism, bestiality duelling and consensual incest.
3. Not BIC test- Canadian Foundation for Children, Youth and the Law v Canada (2004)- challenge on a defence for
an assault charge for teachers and parents. It was argued that the best interests of the child was a principle of
fundamental justice and that the exposure of children to corrective force was not in their best interests. The SCC had
accepted the 3 requirements of fundamental justice that was stipulated in Malmo-Levine so BIC was not
fundamental justice.

iv. Strict Liability Offenses ok

1. 2 types (R v City of Sault Ste Marie (1978))
(a) offences of absolute liability-which the offence consists of doing the prohibited act. There is no requirement of
fault, either mens rea or negligence. They could convicted even if they had no intention of breaking the law and
also exercised reasonable care to avoid doing so.
(b) offences of strict liability- the offence consists simply of doing the prohibited act however, it is a defence if the
defendant proves to the civil standard of the balance of probabilities that he or she exercised reasonable care
( due diligence) to avoid committing the crime. There is a fault requirement of negligence because the accused
is liable only if he or she cannot prove the exercise of reasonable care.

2. Pontes- makes clear that s7 has no application to large fines because liberty is not affected. As long as imprisonment
is not a penalty Parliament can still make offences of absolute liability.

3. Absolute- struck down

(a) Driving while prohibited or suspended from driving – BC Motor Vehicle Reference (1985)-the subsection
stated the offence was an “absolute liability offence for which guilt is establish by proof of driving whether or
not the defendant knew of the prohibition or suspension. Short prison term. SCC held-that absolute was a
denial of the principles of fundamental justice-since it carried a short term of imprisonment and a conviction
would mean a deprivation of “liberty”. The offence was declared to be in violation of s7 and of no force of
effect.
(b) Statutory rape- R v Hess(1990)- CC made it an offence for a male person to have intercourse with a female
person under the age of 14 “whether or not he believes that she is 14 years of age or more” This offence was
absolute liability since it was no defence for the accused to show that he reasonably believed his act to be
innocent. The offence carried a penalty of imprisonment. SCC held- that the penalty of imprisonment was a
breach of fundamental justice in violation of s7. the result was not to strike down the offence entirely. What
saved the offence is R v Hess is the power to use severance to eliminate the penalty of imprisonment.

4. Strict Liability Offences – upheld where regulatory

(a) R v Wholesale Travel Group (1991)- in this case the accused corporation was charged with the offence of false
or misleading advertising under the Competition Act. The act made it clear that there was no requirement of
mens rea, the only defence was one of due diligence (reasonable care) and the burden of proving due diligence
rested on the accused. Accused relied on BC Motor Vehicle Reference Act to argue a violation of fundamental
justice and the crown argued that a fault element for an offence carrying a punishment of jail was needed but
was satisfied with the defence of due diligence. SCC held- that the crime was not a “true crime” but merely a
regulatory offence or public welfare offence. Characteristics of a “true crime” was that it was “inherently
wrongful conduct” A regulatory offence was designed to establish standards of conduct for activity that could
be harmful to others- no mens rea required

v. Satisfied for negligence cases- if there is a defence of reasonable care ( due diligence) and the burden of proving
reasonable care ( to the civil standard) may be cast on the defendant.

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 1. R V Hundel (1993)- the accused had driven his truck through a red light and collided with another car killing the
other driver. He argued that he did not have time to safely stop through the amber light so he felt it was the right
course of action. Court cited – Wholesale Travel and stated that “in appropriate context, negligence can be an
acceptable basis of liability which meets the fault requirement of s7 of the Charter. All that the crown needed to
establish was an objective departure by the accused from the appropriate standard of care. The fact that the accused
believed that he was driving safely was irrelevant.
2. R v Finlay (1993)- the SCC reviewed the CC offence of storing a firearm “in a careless manner”. The max penalty
was 2 years. Was negligence a sufficient fault requirement for the CC. Larmer CJ repeated the dictum in Hundal
that- “ in the appropriate context negligence can be an acceptable basis of liability which meets the fault requirement
of s7.

vi. Mens rea not required for other cases

1. R v De Sousa (1992)- CC charge of unlawfully causing bodily harm. Accused threw a bottle in a fight and injured
an innocent bystander. The accused neither intended nor foresaw the injury. What was the mental element for
causing bodily harm? Sopinka J- held that there was “no constitutional requirement that intention, either on an
objective or subjective basis extended to the consequences of unlawful acts in general”
2. R v Creighton (1993)- SCC had to determine what was the mental element of the offence of manslaughter by
unlawful act. The court upheld the constitutionality of the CC requirement of objective foresight of bodily harm as
the mental element of unlawful act manslaughter. Foresight of the death was not required, despite the fact that the
maximum penalty for manslaughter was imprisonment for life.

vii. Murder/Attempted Murder –mens rea constitutionally required

1. R v Logan ( 1990)- two accused robed a store with a gun in which a third person shot and injured the clerk. The two
were convicted as parties under s21(2) to the crime of attempted murder. SCC held- since the attempted murder was
one of those few offences for which s7 stipulated a requirement of subjective mens rea because the “social stigma
associated with the conviction” .
2. Felony murder- All that was needed as proof was the felony, the use or carrying of the weapon and the causing
death.
(a) R v Valliancourt (1987)- charge with murder as the result of a poolroom robbery. The accused knew the
accomplice was carrying a gun but did not foresee that a death was likely to occur (subjective) and there was
reasonable doubt that he “ought to have know” (objective standard). SCC held that the felony-murder rule was a
violation of fundamental justice under s7 of the Charter b/c either objective or subjective sufficed. “There are
“certain crimes where, because of the stigma attached to the conviction therefore\ or the available penalites, the
principles of fundamental justice require a mens rea reflecting the particular nature of that crime.” (murder).
(b) R. v. Martineau (1990) – held subjective foreseeability required by s.7.

b. Other Issues of Fundamental Justice

i. Involuntary Acts
(a) Automatism- A tenant of the legal system should not be convicted of a criminal offence of an act that is not
voluntary. The courts have become persuaded that a person can engage in very complex behaviour while in a
state of “automatism” and that automatic behaviour cannot be an offence because it is involuntary.
(i) R v Parks (1992)- accused drove 23 km and killed his mother in-law and injured his father in law.. He was
charged with murder and attempted murder. His defence of sleep walking which was supported by 5
psychiatric exports. The also stated that he was not of a disease of the mind.
(ii) R v Stone (1999)- accused after taunting by his wife, stabbed her to death. he argued he was provoke which
suffered a “psychological blow” causing him to commit the act. He was found guilty of manslaughter
instead of murder. He appealed that he should have been acquitted. SCC held- this defence was not
available because a “normal” person would not have shift into a state of automatism as the result of the
wife’s taunts.

(b) Duress
(i) The CC by s17 makes duress an excuse for the commission of an offence: an offence committed “under
compulsions” is excused from criminal liability. However, s17 stipulates that the compulsion must take the
form of “threats of immediate death or bodily harm from a person who is present when the offence is
committed .
1. Immediacy and presence requirements of s17 struck down as unconstitutional in Ruzic
(ii) R v Ruzic (2001)- accused arrived at airport with heroin strapped to body. She was charge with false
passport and drugs. She pleaded guilty to both crimes but claimed that she was forced to commit the
offences because her mother was going to be harmed by a man in Belgrade. This was believed by the jury
30
 who acquitted her. The Crown appealed on the ground of limiting conditions of s17 were not satisfied.
Corwn argued that- since the offences occurred in Toronto the threats were no “immediate” and he was not
“present when the offences were committed” The SCC affirmed the acquittal of the accused s7 of the
Charter was applicable because the offences carried the penalty of imprisonment Lebel J- held it would be
a breach of the principles of fundamental of justice to convict a person of a crime when that person had not
acted voluntarily.

(c) Intoxication
(i) General intent – mens rea to do actus reus - low threshold for establishing mens rea b/c even drunk people
can know what doing, so before Daviault- drunkenness couldn’t escape responsibility for offenses of
general intent
1. Vs. Specific intent – required mental element in addition to intention to do act

(ii) R v Daviault (1994)- Sexual assault, crime of general intent, guy was drunk, wheelchair girl. The
SCC held that s7 requires that extreme intoxication (akin to automatism) be a defence to a criminal charge.
1. SCC held- that s7 and 11(d)- of the Charter were offended by the rule that self induced intoxication
was no defence to a criminal charge. Cory J- held that under s7 the requirement of mens rea for a
crime of general intent could only be the intention to commit the prohibited act. The accused must
establish the defence of extreme intoxication on the balance of probabilities. By reversing the usual
onus of proof in a criminal case, Cory J created a new rule
2. Parliament added to the CC 33.1 in response – describing extreme self-induced intoxication as
marked departure from std of reasonable care- sufficient fault for offenses of violence.

(iii) R v Robinson (1996)- the SCC turned its attention to offences of specific intent. This was a murder case
which required specific intent (i.e. intent to kill-foresight of death). The accused had been drinking and he
hit the head of the victim with a stone. SCC Held- If a drunkenness raised a reasonable doubt as to whether
the accused in fact possessed the requisite specific intent, the accused was entitled to be acquitted even if
there was no doubt that the accused possessed the capacity to form a requisite intent.

ii. Overbroad Laws

1. Hypothetical- Raises serious practical and theoretical difficulties and confers exceedingly discretionary power of
review on the court—doesn’t have to be ripe, cts may have to reject law based on hypothetical bad application
(a) Vs. Vagueness have this in common :either deficiency results in the invalidity of the entire law, including the
part that is consistent with the purpose of the law and clear in its application- does not need to be ripe for
overbroad, does for vagueness.

2. Playground pervs. R v Heywood (1994) –SCC established a new doctrine of “overbreadth” which applies to a law
which is broader than necessary to accomplish its purpose- breach of the principles of fundamental justice.
(a) In this case anyone previously convicted of sexual assault was not allowed to be “found loitering in or near a
school ground, playground public park or bathing area. “ In this case the law was overboard because:
1. geographic scope was too wide, because parks and bathing areas include places where children were
not likely to be found
2. duration was too long because it applied for life without any possibility for review and
3. class of persons to whom it applied would not be continuing danger to children.

3. Pollution. Ontario v Canadian Pacific (1995)- offence under EPA for discharging smoke into the air, since corp can
invoke s. 7 defense to crim charge if would be avail to individual, D here cold invoke. Here, statute could capture
campers in wilderness. Lamrer CJ solved the problem by invoking the presumption of constitutionality and adopting
an artificial narrow interpretation of the Act –exempting the wild

4. Pot possession. R v Clay (2003) possession of marihuana- law criminalizing marihuana which includes the penalty
of imprisonment and therefore impaired liberty under s7 offended the principles of fundamental justice because it
was overbroad. The SCC did not agree- pot bad, rational basis for extending prohibition to all users.

5. R v Demers- a committee was designed for people who were found to be unfit for trial. This committee would
review their case annually. People unfit were getting trapped in the system because there was not power by the

31
 courts to order a discharge even if the person was not a public threat. Since the law made no provision for an
absolute discharge for the permanently unfit accused- t was overbroad.

iii. Disproportionate law 47.16

1. R v Malmo- Levine (2003)- the SCC established a new doctrine of “disproportionaity” which is a breach of the
principles of fundamental justice. This doctrine of disproportainalty requires the court to determine:
(a) whether a law pursues a “legitimate interest” and if it does
(b) whether the law is grossly disproportionate to the state interest

iv. Vague Laws 47.18

1. Here under S. 7 fundamental justice not S.1 requirement of precision
2. Not hypothetical scenarios like overbreadth
3. Two problems:
(i) First, the law does not provide fair notice to persons of what is prohibited which makes it difficult for
them to comply with the law.
(ii) Secondly the law does not provide clear standards for those entrusted in enforcement which may lead to
arbitrary enforcement.
1. Prostitution Reference (1990)- SCC acknowledged that the prohibition was “broad and far reaching,
denied that it was so vague that a court could not give “sensible meaning to its terms.
2. United Nurses of Alberta v Alberta (1992)- The SCC held that it was not a requirement of
fundamental justice that a criminal offence be codified in stator form. Although the elements of the
common law offence were not as clear as could be achieved in a statutory definition, the offence was
neither vague nor arbitrary”’
3. R v Nova Scotia Pharmaceutial Society (1992)- the word “unduly” was attacked under s7 on the
ground that the word was unconstitutionally vague. This argument was rejected by the SCC.
4. Ontario v Canadian Pacific (1995)- EPA and the use of the words “contaminent”, into the “natural
environment” and “for any use that can be made of it” were not so vague—although broad, scope
reasonably delineated so that legal debate can occur as to the application of the provision in a specific
fact situation. All s. 7 required. (But void for overbreadth)

4. Standard of precision
(i) Same under s. 1 and s.7, 11(e) - Nova Scotia
(ii) R v Nova Scotia Pharmaceutical Society (1992)- The law should be “intelligible” and should sufficiently
delineate “an area of risk” and whether the law provides “an adequate basis for legal debate” ( Hogg sees
this last one least useful.) However the SCC has employed in subsequent cases. Gontheir J- there is no
requirement that the law be “absolute certain” because no law can meet that standard.
(iii) Canadian Foundation for Children Youth and Law v Canada- “reasonable force” by way of
correction in s43 of the CC. It appeared vague and many lower courts that found that s43 did not
provide meaningful standards. The SCC ignored this body of law and instead relied on expert
evidence. “on the basis of expert evidence”- so interpreted she held that s43 “sets real
boundaries and delineates a risk zone for criminal sanction” that is sufficiently clear standard to
avoid the charge of unconstitutional vagueness.

v. Wrong Laws 47.19

1. R v Gamble (1988)- the person was tried and convicted of murder and imprisoned under laws that had just been
enacted, but not come into effect. Parole after 25 years, not 10. She should have been tried with offences which
existed during the time of the offence. This affected her eligibility for parole. Wilson J- for the SCC held- the
continued detention of the prisoner without the eligibility for parole was a breach of s7. A basic tenant of the legal
system is that” an accused must be tried and punished under the law in force at the time the offence was committed.
She was eligible to apply for parole immediately.

vi. Right to Silence

1. s7 contains residual of the right to silence which supplements s11(c) and 13.
(a) s11(c) which applies only to the accused in a criminal trial (making the accused a non-compellable witness) is
supplemented by s7 which applies to any witness in any proceeding and which makes the witness non-
compellable if the true purpose of calling the witness was to obtain incriminating evidence against the witness.
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 (b) “use immunity”- which protects the witness from having the compelled testimony used to incriminate him or
her in a subsequent proceeding. This is provided to a witness who testifies in any proceedings by s13 and to
persons other than witness by s7 –illustrated by R v White ( 1999)
(c) “derivative use immunity”- which protects the witness from having the compelled testimony used to obtain
other evidence (derivative or secondary) to incriminate him or her in a subsequent proceedings unless the
derivate evidence is discoverable independently of the compelled testimony.

2. Jailhouse confessions – if voluntary

(a) R v Hebert (1990)- the accused had been arrested and advised of his right counsel. He did retain counsel and
advise the police he did not want to make a statement. He then was placed in custody with an undercover cop to
whom the accused made an incriminating statement. SCC held-that the statement had been obtained in breach
of the Charter. In effect the police had used a trick to subvert the accuser’s election not to make a statement to
the police. The reason why it was under s7 and not s10(b)(right to counsel) is because court took the right to
silence route – which was principal of fundamenta justice under s. 7.
(i) Note: If it was a voluntary statement to another prisoner or even an undercover cop the result would have
been different- so long as statement was no actively eliecited by questioning.

(b) R v Broyles (1991)- was another jailhouse confession. The accused made a statement while in custody to a
friend who visited him in the jail. The friend had been recruited as police informer. The difference between
Herbert and this case is that it was a police informer. SCC held it was still a breach to his right and the
statement was excluded.

3. Regulatory regime
(a) R v Fitzpatrick ( 1995) concerned the requirement of the federal Fisheries Act that records be kept by fishers
and supplied to government on a daily basis detailing their daily catch of fish. Could these records be used in
trial as evidence against him? SCC held- there was no breach of s11(c) and no breach of s7 because in the
context of the regulatory scheme to which the accused had voluntarily submitted by engaging in the business of
fishing fundamental justice did not prove an immunity against the use of statutory compelled information.
(b) R v White ( 1999)- whether reports made to police under the compulsion of a provincial law could be used
against the person reporting them. SCC held- because the accident reports were provided under compulsion
their admission into evidence against the accused would violate a principle of fundamental justice under s7 –a
principle against self-incrimination. The court distinguished on the grounds that driving is not freely
undertaken in precisely the same way as one is free to participate in a regulated industry such as commercial
fishery.
(c) R v Jarvis ( 2002)- Tax related case. The taxpayer was vulnerable to the penalty of imprisonment meaning s7
was applicable. SCC held-the CRA during the investigative phase-tax officials could not continue to use the
audit power to collect evidence for criminal prosecution. If more material was needed it would have to be done
through a search warrant.

vii. FAIR TRIAL/Procedural Protections

1. s7 overlaps with s11(d)- which also guarantees a person charged with an offence “ a fair and public hearing by an
independent and impartial tribunal” , but s7 is wider than s11 (d) because it also applies to civil/administrative
proceedings where they affect life liberty and security of persons.
(a) But Right to a fair trial does not mean that all existing rules and procedure are constitutionalized.
(b) Courts rely on c/l procedural fairness to interpret S.7 fundamental justice - Suresh Ct -- The principles of
fundamental justice of which sec. 7 speaks, though not identical to the duty of fairness elucidated in Baker, are
the same principles underlying that duty applied Baker framework to assess the adequacy of procedure afforded
to Suresh – so basically, principles of fundamental justice become procedural fairness in this Charter context.

2. New Brunswick v G.(J).[1999]- SCC held: that an application by the state to remove children from the custody of
a parent affected the parent’s security of the person and made s7 applicable. Principles of fundamental justice
required a fair hearing be provided and that the parent be provided with state funded representation.

3. Winnipeg Child and Family Services v KLW ( 2000)- held that the warrantless apprehension by the state of a
child “in need of protection” was not a breach of the principles of fundamental justice. A requirement of a warrant
issued by a judge or a hearing before a judge prior to apprehension would lead to delay which would create a risk of
harm to the child. The principles of fundamental justice were satisfied by a post-apprehension hearing.

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4. R v. Levogiannis [1993]- SCC upheld another provision that allows a witness under the age of 18 to testify from
behind a one-way screen so the witness cannot see the accused (although the accused can see the witness)

5. Singh v. Minister of Employment and Immigration (1985, SCC)

(a) Recognized that s. 7 applies to non-citizens-- Security of the person includes threat of phys suffering too –
threat of torture. caused the govt to overhaul the statutory scheme and establish the Immigration and Refugee
Board to ensure that all refugee claimants receive a fair hearing in accordance with the principles of
fundamental justice.
(b) Cannot be saved under s. 1, because adopting administrative procedures which ignore the principles of
fundamental justice merely for reasons of cost and efficiency is not sufficiently compelling to justify the
limitation of rights.
(c) Facts: Refugee claimants had limited oppty to present their cases in oral hearings before either the decision-
maker at first instance or the IAB on appeal-- only oppty if the IAB concluded on the basis of the asylum
seeker's written submissions that there were reasonable grounds to believe that the claimant could make a
successful claim at an oral hearing. (No c/l right b/c enabling statute limited oral hearings.) Oral hearing
required here.

6. Charkaoui v. Canada (Citizenship and Immigration),

(a) Issue- was the process for the issue of a “security certificates” under the federal Immigration and Refugee
Protection Act. The Act empowered 2 minsters to issue the certificate declaring a non-citizen named in the
certificate to be a threat to national security. The certificate authorized the arrest and detention of the person.
The certificate was then brought to a judge to review on the standard of reasonableness then if found to be
reasonable the person would be deported. During the review process, ex parte and in camera hearings are held at
the request of the Crown if the judge believes that disclosure of some or all of the evidence on which the
certificate is based could undermine national security. The judge then provides to the named person a summary
of the evidence, but not its sources or any other details that might compromise national security. If the judge
determines that the certificate is reasonable, there is no appeal or opportunity for further judicial review.
(b) SCC held that- S. 7 doubly engaged-
(i) Liberty - persons subject to security certificates face detention pending deportation
(ii) Security- person's removal may be to a place where life/freedom threatened
(iii) No fundamental justice b/c no fair hearing – judge acting w/incomplete info-- “The principle of knowing
the case to meet when liberty is in jeopardy has not merely been limited by the provision allowing
undisclosed material to be presented; it has been effectively gutted."
(c) Not narrow enough under S.1 : To remedy the procedural shortcomings of the statutory scheme, the Court
suggests that an amicus curiae (security-cleared special advocate) could be appointed to represent the named
person during in camera proceedings. The Crown's failure to incorporate such a measure, or to otherwise correct
the procedural deficiencies, leads to the conclusion that the violation of s. 7 could not be saved under s. 1
because the infringement did not minimally impair the right at stake.

7. Suresh v. Canada (Minister of Citizenship and Immigration) (2002, SCC)

(a) S. 7, process by which determination made violates Charter- not enough procedure - Ct upheld provision in
Immigration Act that permitted Minister of Immigration to deport non-citizens who were found to be a “danger
to the security of Canada”, and held Suresh did not have rt to an oral hearing, but did have the right to:
(i) Disclosure of materials on which the Minister would base her decision, including the memorandum from
the immigration officer who initially reviewed Suresh's case.
1. Subject to privilege or other valid reasons for reduced disclosure, such as safeguarding confidential
public security documents.”
2. Also Prichard v. Ontario (HRC)- under c/l, priv allowed agency to withhold legal opinion, consistent
with procedural fairness
(ii) Right to written reply to the claims set out in the memorandum, including claims relevant to the threat he
posed to Canada and the risk of torture he would have if deported (oppty to challenge Minister’s info)
(iii) Reasons- Ct held that the Minister herself (and not a delegated officer) must provide “responsive” reasons
that demonstrate both that the individual is a danger to Canada and that there are no substantial grounds to
believe he would be subject to torture.
(b) Ct also noted Deportation to torture will generally violate the principles of fundamental justice protected by s.
7 of the Charter—unless exceptional circs. Reviewable on correctness, whereas other substantive findings
(threat to national security, actual likelihood of torture) reviewable on deference.
(c) Facts: Suresh detained on a security certificate for links to terrorist group. Fed Ct upheld the certificate and, in
the subsequent deportation hearing, the adjudicator found Suresh to be inadmissible as a refugee.
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 (i) Separate ongoing process called the “danger opinion” - whether the risk of danger posed by this person
remaining in Canada would outweigh the risk of a well-founded fear of torture- Unlike the statutory
provisions under scrutiny in Singh, Immigration Act did not require the Minister to adopt or follow any
particular procedure. Minister notified Suresh that she intended to consider “danger opinion” and gave
oppty to make submissions. After submissions, officer recommended in a memorandum to the Minister that
she issue an opinion under s. 53(1)(b) that Suresh constitutes a danger to Canada. Suresh did not have the
opportunity to see or respond to the officer's memorandum, which the Court described as “more like a
prosecutor's brief than a statement of reasons for a decision.” Minister issued danger opinion,
notwithstanding an acknowledgement that Suresh would face a risk of torture upon his return to Sri Lanka.

viii. Full answer and defence/Disclosure

(a) R v Seaboyer ( 1991)- Rape shield law- SCC held- that both s7 and 11(d) guaranteed an accused “the right to
present full and answer and defence” and that this right was reduced by a “rape shield” provision in the CC-
which restricted the right of a person charged with a sexual assult to cross examine the complainant about their
past sexual activity McLachlin J- this provision would occasionally have the effect of excluding relevant
evidence that was required to enable the accused to make full answer and defence.
(b) R v Cook(1997) – Crown calling witness- The SCC rejected the argument that the inability of the
accused( assault) to cross examine his accuser was a denial of the accsued’s right to make full answer and
defence. SCC Held the Crown has discretion as to the witness ( did not call victim) it chose to call and the
accused right to make full answer and defence was protected by his right to cross witnesses that did come
forward-evidence the jury had found the accused guilty. The argument that the accused would be surprised at
trial was rejected because of pre-trial right to full exposure. SCC acknowledged – there might be rare cases
where the suppression of potentially exculpatory evidence by the Crown amounted to an abuse of process, but
the onus is of proving misconduct lay on the accused and had not been discharged in this case
(c) R v Stinchcombe ( 1991)- disclosure- SCC held that pre-trial disclosure by the Crown, of all information
relevant to the conduct of the defence is a constitutional obligation, entailed by the accused to make a full
answer Crown has no duty to disclose irrelevant information or privileged information. The crown retains
discretion as to the timing of disclosure, since premature disclosure could impede investigations.
(i) Also applies to 3rd pty info in possession of crown but not necessarily if not in possession of crown (e.g. 3d
pty witness who has privacy and equality rts – balance w/full answer and defense)
(d) R.v. La (1997)- tape of 13 yr old prostitute w/cop making accusation, tape was lost, not deliberately destroyed,
no unacceptable degree of negligence and no prejudice to trial w/I s.7

Equality
a. S.15- Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the
law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability.

b. Generally
1. Named grounds of discrimination - by the phrase “in particular”, not exhaustive.
2. Freedom from discrimination law/freedom to promote egalitarian values
3. Policy
(a) Commentators have described equality as an “empty idea”. The idea is empty in the sense that it cannot be
applied without first working out the criteria of likeness and like treatment and the idea of equality cannot by
itself supply those criteria.
(b) Formal and Substantive equality
(i) Common criticism of the pre-charter similarly situated definition is that it can mask discrimination
occurring indirectly.
(ii) Formal equality can strike down directly discriminatory laws, but an apparently neutral law may have a
disproportionate effect on a particular group which as a consequence is being treated unequal.
(iii) Substantive law requires is that the identification of persons who are similarly situated must take into
account of contextual factors related to race, sex and disability (examples) making a person’s situation
sufficiently different to require different treatment in order to be treated fairly.

4. Timing
(a) s32(2) - Charter delayed the coming into force of s15 for 3 years after coming into force for the rest of the
Charter.
(b) That brought it into force on April 17 1985. The purpose of the delay was to provide time for the federal
35
 government and each province to review its body of laws and make those amendments to bring conformity with
s 15 Charter.

5. Equality is expressed in 4 different ways, to cover narrow interpretation given to “before the law” in BoR:
(i) equality before the law
(ii) equality under the law - extended to the substance of the law, not only way in which it was administered.
(iii) equal protection of the law
(iv) equal benefit of the law- so that legislative provisions of “benefits” was subject to equality standards.

c. The burden then shifts the government to justify the discriminatory law under s1.
1. Newfoundland v NAPE (2004) - Law that imposes a disadvantage on the basis of a listed or analogous ground also
impairs human dignity, was the where SCC found where Newfoundland was facing serious financial crisis could
enact a law that postponing implementation under collective agreements under which the government had
undertaken to increase the wages of women.

d. “Law” in s 15 does not exclude governmental action that is not law , but does exclude private actors
1. Discretionary Decisions
(a) R v S.(S.) (1990)- did not apply to an exercise of discretion conferred by law, but only to the enabling law itself.
Therefore, the AG of Ontario’s decision not to establish a diversion programme could not be impeached under
s15.
(b) R v S.(G.) (1990)- the Court also rejected an equality attack on a diversion programme that had been established
on the ground that the programme was an exercise of discretion under the Act.
(c) Then -- Douglas/ Kwantlen Factutly Assn v Douglas College [1990]- SCC had asserted that the requirement of
“law” in s15 is satisfied by conduct taken under the authority of law. This case had no mention of the two S
cases.

2. Not Private Action- s32 of the Charter excludes private action from the application of the Charter.
(a) This means that s15 does not apply to private acts of discrimination (hiring male employees) or a landlord rents
only to white people, or a shop keeper refuses to serve children.
(b) In all Canadian jurisdiction Human Rights Codes have been enacted that prohibit private acts of discrimination.
(c) Blainey v Ontario Hockey Association (1986)- The Charter can have an indirect impact on private action.
Facts- Human Rights Codes themselves are subject to the Charter of Rights. Girl who was excluded from
Hockey team challenged a provision of the Ont. Human Rights Code- that permitted single sex sports teams.
Usually prohibited discrimination by sex but allowed single sex teams. The Ontario Court of Appeal held that it
was a breach of s15 because it denied to the plaintiff the benefit of the Human Rights Code by reason of her
sex. The effect of nullifying the exception which gave the plaintiff a remedy under the Human Rights Code. The
Charter did not apply to the hockey association but did apply the Human Rights Code. Provision struck down.
(d) McKinney v University of Guelph (1990)- The Charter can have an indirect impact on private action. A
professor did not want to retire at the mandatory age of 65 so he challenged the law. The university was a
private body so the Charter did not apply. Ontario human rights code permitted the mandatory requirement so
he argued the Code was a breach of s15 age discrimination. SCC held- that it was a breach of s15 but went on
to state that it was justified under s1.

e. Discrimination
Andrews v Law Society of BC (1989) Andrews- SCC held that s15 was a prohibition of those violations of equality that
amount to discrimination and that discrimination could only be based on a ground listed in s15 or that was analogous to
those listed in s15. Test has evolved:

(a) challenged law imposes (directly or indirectly) on the claimant a disadvantage (in the form of a burden or
withheld benefit) in comparison to other comparable persons;

(b) disadvantage is based on a ground listed in or analogous to a ground listed in s15; and
(i) articulated in Andrews, affirmed in Law
(ii) Corbiere v Can [1999]- SCC held that an analogous ground is one based on “a personal characteristic that
is immutable or changeable only at unacceptable cost to a personal identity.”

(c) disadvantage also continues an impairment of the human dignity of the claimant

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 (i) Law v Canada ( 1995)- added this new restriction, defeated claim, The claimant was survivor seeking a
payment from a spouse but was ineligible because she was under 35- Canadian Pensions purpose payment
plan it was much easier for younger widowers to support themselves then seniors.
1. four contextual factors not to be taken exhaustively:
a. the existence of pre-existing disadvantage, stereotyping, prejudice and vulnerability
b. correspondence between the distinctions and claimant’s characteristics or circumstances
c. existence of ameliorative purposes effects on other groups
d. nature of the interest effected.
2. “The correspondence, or lack thereof, between the ground of grounds on which the claimant is based
and the actual need, capacity, or circumstances of the claimant or others.” Hogg-Really means: An
assessment by the court of the legitimacy of the statutory purpose and the reasonableness of using a
listed or analogous ground to accomplish that purpose. This factor leaves very little for s1 to do.
3. Often is absorbed by the question of disadvantage making it hard for the court to keep the
two ideas distinct.

(ii) Nova Scotia v Walsh (2002) was unanimous that marital status was an analogous ground. However the
court held that the matrimonial property regime of NS which was restricted to people legally married did
not breach s15 because it did not impair the human dignity of the common law spouses who were excluded
by reason of their marital status.

(iii) R v Kapp (2008)- SCC had changed their mind (“confusing and dificul to apply”) and retracted the
requirement of an impairment of human dignity-replacing it with “impairment of human dignity”
or“perpetuation of disadvantage and prejudice, or stereotyping”, but incorporating same 4 contextual
factors.

(iv) Canadian Foundation for Children Youth (2004)- SCC held that a reasonable use of corrective force
against children by parents/teachers was on a whole beneficial to children. It held that human dignity was
not impaired, taking the perspective of “a reasonable person acting on behalf of the child, who seriously
considers and values the child’s views and development needs.

(v) Law v Canada ( 1995)- defeated claim, The claimant was survivor seeking a payment from a spouse but
was ineligible because she was under 35- Canadian Pensions purpose payment plan it was much easier for
younger widowers to support themselves then seniors.

f. Analagous Grounds
1. Citizenship- (Andrews v Law Society of BC (1989) - was the first analogous ground. Challenge to the statutory
requirement of the province of BC that members of the bar had to be citizens of Canada. SCC held-unanimously
that this requirement was contrary to s15 and was not saved by s1.

2. Marital Status – (Miron v Trudel (1995)- concerned the statutory provision dictating insurance accidents benefits
to a “spouse” a term that was defined as a person legally married to the victim. The claimant was a common law
spouse succeeded in striking down the requirement of marriage. Struck down under s.15.

3. Sexual Orientation – Egan v Canada (1995) 8/9 judges decided that sexual orientation was an analogous ground.
The claimants were a same sex couple who were seeking a spousal allowance under the federal Old Age security
program and did not succeed.
(a) Vriend v Alberta (1998)- Court held that Alberta’s Human Right’s code violated s15 by excluding same sex
couples from spousal obligations.
(b) Little Sisters Book and Art Emporium v Canada (2000)- the Court held that the practices of custom officials
in obstructing the importation of gay and lesbian communities was a breach of s15.
(c) Egale v Can ( 2003)- BC courts held, along with other provinces that opposite sex requirements for marriage
was contrary to s 15, thereby legalizing same sex marriage in several provinces.

4. Not analogous grounds are:

(a) Place of residence has not been accepted ( except Indians on Reserves)
(b) Occupation has not been accepted- so laws denying bargaining rights to police officers cannot be challenged
under s15.

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 (c) Substance orientation is not an analogous ground- so laws prohibiting the use of marijuana cannot be challenged
under s15.
(d) Privileges for the Crown and other public authorities in litigation cannot be challenged under s15.

g. Disadvantage
i. This involves two inquires:
1. Whether the group to which the claimant compares herself is the appropriate comparator group
2. whether the distinction that the law draws between the claimant and the comparator group is disadvantageous to the
claimant.

ii. Comparator group

1. Comparison with other to whom the claimant may legitimately invite comparisons – i.e. others who are
similar situated to the complainant except for the presence of a listed or analogous personal
characteristic.
(a) The complainant will compare himself to someone who is better treated them him (Martin). The
responding government will suggest a different comparator group that either receives worse
treatment or the same treatment (Hodge) or that does not exist (Auton) The courts will be assited by
its sense of the purpose of statutory scheme.
2. Andrews- The plaintiff’s non-Canadian citizenship denied him access to the legal profession, while permitting
access to others whose qualifications to practice law were no different from his except-for the possession of
Canadian citizenship.
3. Hodge v Canada (2004) - survivor’s benefit under Canada Pension Plan. C/l spouse of CPP contributor at time of
contributor’s death, but left him shortly before death. Ct held that she selected the wrong comparison group. The
correct comparative group was not married souses living apart but former spouses since c/l marriage requires
cohabitation.
4. Auton V BC (2004) - a claim of discrimination was made by autistic children and their parents. They complained
that the province did not fund the “applied behaviour therapy”. Lower court found the province in breach s 15. SCC-
reversed the decision because the lower courts erred on the comparative groups. The court stated that it was wrong
to compare autism claimants with recipients of fully funded therapies because it ignored the fact that autism therapy
had only recently become recognized as medically necessary. Funding of new therapies “may be legitimately denied
or delayed because of uncertainty about a program and had administrative difficulties related to its recognition and
implementation. The claimant had adduced no evidence that the province was funding “other comparable, novel
therapies” they could not show disadvantage or unequal treatment.

iii. Disadvantage
1. Eatton v Brant County Board of Education (1997)- no finding of disadvantage Tribunal found that a child with
cerebral-palsy who had been educated in a regular classroom should be educated in a special classroom. The parents
took the view that without parental consent it was a breach of equality rights. SCC held there was no breach of
s15.evidence showed that segregating setting was in the best interest of the child. The equality right was that of the
child’s and not the parents. Given the tribunal ruling, placement of the child in a segregated setting could not be
characterized as the imposition of a disadvantage on the child.
2. Court in Law v Canada (1999) stated that both subjective and objective standard should be employed. The inquiry
was to be undertaken “from the perspective of the claimant and from no other perspective” but the claimant
assertion must be supported by an objective assessment of the situation. “

h. Direct and Indirect Discrimination (Disadvantage)

1. Andrews- both indirect and direct discrimination is covered by s15. Note- only two claimants of indirect
discrimination have been successful.
(a) Eldridge v BC (1997)- BC health care to fund sign language interpretation to deaf people.
(b) Vriend v Alberta (1998)- Alberta’s human rights legislation not including sexual orientation.

2. Direct- A law may be discriminatory in its face. ( a law that excludes women from the police force would be
discrimination on its face)

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 3. Indirect- A law may be discriminatory on its effect- ( a law that imposes weight and height qualifications for
admission to the police force would be discriminatory (whether or not intended) because most women aren’t as large
as men. (indirect) Indirect does not expressly employ any of the categories listed in s15 ( or analogous)

4. Indirect- A law may be discriminatory on its application.- a law that prescribed no discriminatory qualifications
for admission to the police force would be discriminatory in its application if police recruitment procedures led to
the rejection of a disproportionate number of female applicants.

i. Affirmative Action 55.13

i. s15(2)- makes it clear that s15 does not preclude “affirmative action programs” or “equity programs” in favour of
“disadvantaged individuals or groups”
ii. Affirmative Action Program fails s15(2)?
1. Meets the Criteria- If an affirmative action plan met the criteria of subsection (2)- then the program was valid
under s15(2) not s15(1) and s15(1 analysis is needed.
2. Fails to Meet the Criteria- If it failed to meet criteria under s15(2) then a s15(1) analysis would have to be
undertaken to determine whether the program was discriminatory. (Substantive equality built into 15(1) analysis)
iii. R v Kapp[2008] makes clear that a program cannot not be attacked under s 15(1) if it targets a group identified by one of
the listed or analogous groups in s 15(1) so long as:
1. the group is disadvantaged and
2. the purpose of the program is the improvement of the conditions of the group.

j. Discrimination Permitted by Constitution 55.14

i. Although the Charter came after the Constitution Act 1867, it is not to be read as impliedly repealing or amending those
provisions of the earlier instrument that are inconsistent with the unqualified language of s15. It is to be read as qualified
by the language of the earlier instrument.

ii. Religion in s93

1. Ontario Separate School funding case (1987)- The case reviewed the validity of an Ontario statue that extended
full public funding to Roman Catholic separate secondary schools which at the time were being funded to grade 10
only. Religious schools other than Roman Catholic schools received no funding. The SCC unanimously upheld the
statue on the basis that the distinctive treatment of Roman Catholic school supporters was expressly permitted by the
Constitution. The Charter of Rights he held, “cannot be interpreted as rendering unconstitutional distinctions that
are expressly permitted by the Constitution Act 1867.

iii. Sex 55.17

1. Statutory rape ok- R v Hess (1990) - SCC held that the offence of statutory rape (intercourse with a female person
under the age of 14) did not offend s15 although it could only be committed by a male person. Wilson J- for the
majority –stated “intercourse” was defined by penetration, which is a biological fact it could only be committed by
males.
2. Female guards in jail ok- Weatherall v Canada (1993) - prisoner challenged the constitutional validity of female
guards frisking males ( male guards did not frisk women).La Forest- that equality did not demand that men and
women always be treated in the same way and the effort of cross gender searching was “different and more
threatening for women than men.” Even if it was a breach of s15, it would be saved by s1.
3. Citizenship parents struck down- Benner v Canada (1997) -provision in federal Citizenship Act that distinguished
between men and women was struck down under s15. The discrimination by sex applied to the parents of applicants
and not to the applicants themselves. It was a breach of s15 and not saved under s1.
4. Naming for birth certificates struck down - Trociuk v BC (2003) (men/women-law)- father challenged the
provincial law that permitted the mother on the birth of the child, to leave the father’s name off the birth certificate
and if she did that, to alone choose the surname of the child. The mother was unmarried and were estranged. SCC
held- the law distinguished on the basis of sex since the fathers were disadvantaged in comparison with mothers.
The court also held the naming process impaired their human dignity therefore it was a breach of s 15 and not
justified under s1.

iv. Age
1. Two differences between age and the other named grounds of discrimination
(a) age is a characteristic that is shared by everyone. In the course of a life span everyone will pass through the
various stages of childhood-old age.

39
 (b) the other between age and other grounds is that there is some correlation between age and ability.
This is not the case with race, color, ethnic origin, sex although (true for mental or physical
disability).
2. Survivor Pension Benefits upheld. Law v Canada (1999)- upheld a law that denied a benefit to a young
person. It did not exclude them because they were less capable or less worthy, but that older people
were more in need support and were often limited without resources. Didn’t impair human dignity.
3. Welfare benefits upheld. Gosselin v Quebec (2002)- the distinction was not discriminatory that the
amount of welfare benefit would change if you were under the age of 30. It did not impair human
dignity. The scheme was described as harsh and misguided” but did not treat people “less worthy or less
deserving"
4. Autistic education limit upheld. Wynberg v Ontario (2006)- Ontario preschool program which supplied
therapy to autistic children would cease one the child turned 6. It was aimed at this age because expert
opinion stated that young children respond well to this treatment. The court held: that the program
corresponds to the needs and circumstances of children aged two and five and for this reason the
human dignity of school age children who were denied the therapy.
5. Beating kids upheld. Canadian Foundation for Children, Youth and the Law v Canada (2004)- constitutionality of
s43 of the CC which made it a defence to charge of assault for a school teacher or parent to use force by way of
correction toward pupil or child” The distinction was not discriminatory because it did not impair the dignity of the
children who were exposed to corrective force. SCC held that criminal law should not intrude into normal school
and family discipline. Criminal law remained available to punish force that was violent and abusive. “where it was a
genuine effort to educate the child, poses no reasonable risk of harm...
6. Mandatory retirement – upheld and overturned. McKinney v University of Guelph (1990)- a number of
university professors in Ontario challenged the mandatory requirement polices of their universities ( 3
cases similar but were found to be outside the scope of the charter. this case was a community college
which was tightly controlled by the government) It held that mandatory retirement was a breach of s15
but was upheld by s1.
(a) Vs. Tetreault-Gadoury v Canada (1991) – the question arose whether a provision of the Unemployment
Insurance Act, which denied benefits to people over 65 was a breach of s15. The court distinguished McKinney
on 3 grounds:
(i) that a university was a closed system with limited resources
(ii) that “faculty renewal was crucial to extending the frontiers of knowledge
(iii) that academic freedom required a minimum performance review up to retirement age.

v. Mental or Physical Disabilities

1. Eaton v Brant County Board of Education (1997) - what form of accommodation was required by s 15 for a
student with mentally and physical disabilities. SCC held- that the school had to accommodate someone with mental
and physical disabilities but it was in the best interest in the child and not the parent. In this case experts held that
special needs was better than regular class (what the parents wanted)
2. Wynberg v Ontario (2006)-this was an age and disability claim. Child with autism and under the age of 6. The
autistic preschool program ended at the age of 6. Experts stated that children at this age respond best to the therapy
therefore it was the best interest of the child. not a breach of s15.
3. Winko v BC (1999)- a challenge to the Criminal Code that provided for the disposition of the accused following a
verdict of “not criminally responsibly” – Court held that because this provision actually helped mentally Ill people
from not being punished it was not a breach of s15.
4. Granovsky v Canada(2000)- challenge to the Canada pension plan. His back pain put him in a category of
temporary disablement and not permanent disablement therefore he could not take advantage of the program. He fell
through the cracks of the program. SCC held the denial was not a breach of s15. Parliament was recognizing a
greater need and not impairing human dignity to those who had been temporarily disabled during the qualifying
period.

LANGAUGE
2) Generally
a. Vs. Free Expression- No rights in the constitution protect the use of English or French in private commercial settings.
However they may offend the the guarantee of freedom of expression in s 2(b). see Ford v Quebec ( 1988)

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b. No plenary power to language in federalism division of powers
c. s16 Charter- English and French the Official Languages of Canada and New Brunswick.
d. s20 Charter- Obligation on government to provide bilingual services on the Public.

e. Law-Making/Legislature
i. Constitution Act, 1867, s.133 -
1. Federal statues have been enacted in both languages - court have held that both versions equally authoritative and
have developed rules for resolving discrepancies. Any doubt or ambiguity is solved by looking at the clear version.
2. s133 permits English and French to be used in debates in the House of the federal Parliament and Quebec
Legislatures, and in courts
3. AG v Blaikie ( 1979)-SCC struck down provisions of Quebecs Charter of the French language that purported to
make the French language of the Legislature and court pleadings and process. The Act provided that bills were to be
provided in French only and only the French version be official. This contravened s133. S133 requires law “be print
and published” in both languages especially in “records and journals”, and that court process could be issues in any
language. This means all statues enacted after the Quebec’s Charter were in violation of s133. This was fixed the
next day.
4. MacDonald v. City of Montreal (1986)- English-speaking quebec defended speeding charge had been issued by
quebec ct in French language only. Ct held did not infringe s. 133.

ii. Manitoba Act 1870 1870 includes s23 a provision that provides for the use of English and French in the Legislature (and
courts ) of Manitoba in terms very similar to s133. No other province created after 1867 had language guarantees written
into their constituent instruments or terms of union.
1. Reference re Language Rights Under s 23 of Manitoba Act: But In 1890 , the Manitoba Legislature enacted the Official
languages Act which provided English Language only” in records and journals of the Legislature and in the pleadings and process
in the Manitoba courts. Courts held that Manitoba’s Official Languages Act was unconstitutional 4 times- but legislature didn’t
respond. Re Manitoba Language Rights (1985) SCC confirmed that the failure to comply with s 23 requirement resulted in the
invalidity of the purported statue. To conform with rule of law, Court decided on a drastic remedy – namely allowing
the invalid acts to remain law until statutes were translated.

iii. Constitution Act, 1982, ss.16-23

1. Duplicate S133
2. French language of constitutional docs
(a) s55 Constiution Act 1982- directs the Minster of Justice to prepare French version of the English only parts of
the Constitution of Canada 1867. It still remains unofficial . Any discrepancy would have to use the English one
because it is official.
(b) s57 The Constitution Act 1982- provides that the English and French version of that Act are equally
authoritative. s56 provides that both languages versions of other parts of Constitution of Canada are both
“equally authoritative”

f. Language and education

1. s93 Constitution Act 1867- confers powers upon the provincial Legislatures the power to make laws in relation to
education but it prohibits the Legislatures from prejudicially affecting rights or privileges with respect to
denominational schools existing by law at the time of confederation.
(a) If a language of instruction was a right or privilege of denominational schools in a province at the time of
confederation then the province would have to respect that.

2. s23 Charter- minority language rights have now been provided for in s23. It is on citizens of Canada, who are
English speaking minority in Quebec or French Speaking majority in other provinces. “the right to have their
children receive primary and secondary school in their language in that province.”
(a) Parent has to fit into 1 of 3 categories:
(i) mother tongue of the parent s23(1a)
1. They have to “reside”, be Canadian citizen, be an language minority French or English, Need to prove
the language was “ “first language learned” and is “still understood”
2. By virtue of s59 Constitution of Act 1982- the paragraph does not apply in Quebec until the legislative
assembly or government of Quebec decides to adopt it. English speaking parents in Quebec have no
right to send their children to English speaking schools, unless they fit into the second or third category
of parent recognized by s 23.

(ii) language of primary school instruction in Canada of the parents (1b)

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 1. This is called the “Canada Clause”. Citizens who move from one province to another retain
their right to have their children educated in the same language as that which parent was
educated anywhere in Canada. Quebec is not exempt from this para(b).
2. AG of Que v Quebec Protestant School Board (1984) - Quebec Charter of the French Language – had a
Quebec clause but limited admission to English schools in Quebec to children of persons educated in
English in Quebec. SCC held that this clause was in conflict with Canada Clause. The Quebec clause
has to yield to the Canada clause.

(iii) language of instruction in Canada of one child of the parent s23(2)

(b) Limitation- where the numbers “warrant”-

(i) s23 (3)(a) and (b) applies “wherever in the province the number of children of citizens who have
such right is sufficient to warrant the provision to them out of public funds of minority language
instruction” and “minority language educational facilities provided out of public funds”
(ii) Mahe v Alberta (1990)- S.23 established sliding scale of entitlement based on number of kids. If
very small, maybe no minority rights. Court rejected argument that language facilities was not
just physical facilities. It also includes a degree of management and control that was
proportionate to the number of qualifying children (could include independent school board, but
not under facts of case).
(iii) Arsenault-Cameron v PEI (200) - French language school for 49 students, didn’t want to bus their
kids 28 ki away, even though that was less than avg. bus distance for English-language students
in province. SCC sided with parents and held the relevant number to consider “was somewhere
between the known demand and the potential students who could potentially take advantage of
the service.” The number in this case who potentially would go is 155.

ABORIGINALS
1) Fed Power
a. Constitution Act, 1867, s.91(24) - confers power upon the federal Parliament the power to make law in relation to “Indians,
and lands reserved for the Indians”.
i. Federal govt has taken a broad view – incl matters otherwise outside its legislative competence:
1. e.g. Indian Act- provisions that govern: succession to the property of deceased Indians, administration of property of
mentally incompetent Indians and infant Indians
2. Are they in pith and substance in relations to Indians? Lysyk-doubts as to the validity of the Indian Act’s forays into
the law of property.

b. Power over “Indians”

i. Reserved for only Indians where they reside on, or have any connection with, lands reserved for Indians.)
ii. Federal Indian Act - defines the term “Indian” /establishes a register to record names/ and persons within this statutory
definition are known as “Status Indians”. They can enjoy the right to live on Indian reserves.
1. Non-Status “Indians” –some persons’ with Indian Blood and Culture-who are outside the definition. Metis People
(French/Indian) outside reserve system most likely Indians Under s 91(24) & The Inuit or Eskimo people- are
outside reserve system but held to be Indians within the meaning of s91(24)
2. R v Powley- Courts lays down 3 indicia of “Metis people”
(a) FACTS: P charged with unlawfully hunting moose; P argues that, as Metis, they have an aboriginal
right to hunt for food in the Sault Ste Marie area
(i) (1) Self-identification
(ii) (2) Ancestral connection
(iii) (3) Community acceptance

c. Power over “lands reserved for Indians”

1. Maybe exercised in respect of Indians and Non Indians so long as the law is related to lands reserved for the Indians.

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 2. St Catherine’s Milling and Lumber Co v the Queen (1889) - The title of the provincial crown is subject to the
aboriginal rights of the Indians and of those rights along with other matters pertaining to the control and
administration of the reserves are subject to the legislative authority of the federal government.
3. Delgamuukw v B.C. (1997)- the SCC went even further holding the phrase extends to “all lands held pursuant to
aboriginal title”. For that reason, only the federal Parliament had the power to extinguish aboriginal title. Includes
huge area of land recognized by the Royal Proclamation 1763. This is all land within the territory covered by the
proclamation that was in possession of the Indians and that had not been covered by the crown.

d. Provincial Laws
i. General rule is that provincial laws apply to Indians and lands reserved for the Indians.
1. R v Hill (1907)- Ont. Court of appeal held that a provincial law confining the practice of medicine to qualified
physicians applied to Indians: an Indian was convicted of the offence of the unauthorized practice of medicine. ( not
on reserve but it didn’t matter)
2. Four B Manufacturing v United Garment Workers( 1979) –The SCC held that that provincial labour law applied
to shoe manufacturing business which was located on a reserve, which was owed ( through a corporation) by
Indians, which employed manily Indians and which had been funded by the Department of Indian Affairs.
3. R v Francis- (SC 1988)- the court held that a provincial traffic laws applied to an Indian who had been driving a
vehicle on a reserve.

ii. Five Exceptions

1. A) Singling Out –A provincial law that singles out Indians or Indian reserves for special treatment would run the
risk of being classified as a law in relation to Indians or Indian reserves and if so classified, the law would be
invalid. R v Sutherland [1980]
2. B) “Indianness” - basically anything that affects status or capacity- Kruger and Manuel v The Queen [1978]
3. C) Paramouncty- If a provincial law is inconsistent with a provision of the Indian act (or any other federal law) the
provincial law is rendered inoperative by the doctrine of federal paramountcy.
4. D) Natural Resource Agreement- Provincial laws cannot deprive Indians the right to take game and fish for food.
The NRA is part of the Constitution of Canada.
5. E) Section 35 has protected treaty rights.

2) Aboriginal Rights

a. Royal Proclamation of 1763, which reserved to the Crown the exclusive right to negotiate cessions of Aboriginal title
i. Aboriginal people were not to be "molested or disturbed" on their lands
ii. Transactions involving Aboriginal land were to be negotiated properly between the Crown and "assemblies of Indians".
Aboriginal lands were to be acquired only by fair dealing: treaty, or purchase by the Crown.
iii. The proclamation portrays Indian nations as autonomous political entities, living under the protection of the Crown but
retaining their own internal political authority.
iv. It walks a fine line between safeguarding the rights of Aboriginal peoples and establishing a process to permit British
settlement-divide and share sovereign rights to the lands that are now Canada.

b. Constitution Act, 1982, s.35

i. Elevated existing common law aboriginal rights to constitutional status
1. 1 - The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and
affirmed.”
2. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada.
3. (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims
agreements or may be so acquired
4. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are
guaranteed equally to male and female persons

ii. S.25- Charter doesn’t detract from existing rts.

iii. Charter Challenges under S.15

1. Corbiere v Canada (1999)- the SCC struck down a provision of the Indian Act that made residence on the reserve a
requirement for voting in band elections. Held: That the distinction between Indians who lived on the reserve( an
could vote) and Indians who lived off the reserve was a breach of s 15.
2. Lovelace v Ontario ( 2000)The SCC rejected a challenge to the distinction of the Casino Rama gambling profits
that was limited to communities registered as bands under the Indian Act. The court held that the exclusion of non
status bands from the distribution of the profits was not a breach of s15.
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c. Scope of Rights – enforceable at c/l or s.35, protected by govt. fiduciary
1. R v Van der Peet (1996): Definition of Rights w/I s .35
(a) Aboriginal rights not held by virtue of Crown grant, legislation or treaty but b/c “the doctrine of aboriginal
rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in
North America, aboriginal peoples were already here, living in communities on the land, and participating in
distinctive cultures, as they had done for centuries.”.
(i) “by reason of the fact that aboriginal peoples were once independent, self governing entities in possession
of most of the lands now making up Canada.

(b) To identify an “existing aboriginal right within the meaning of s35 of the Constitutional Act 1982.”: identifying
the crucial elements of those pre-existing distinctive societies. Test - In order to be an aboriginal right an
activity must be an element of a practice, custom or tradition integral to the distinctive culture of the
aboriginal group asserting the right.
(i) In order for the practice to be “integral”, the practice, custom or tradition must be “of central significance”
to the aboriginal society : it must be a defining characteristic of the society, “one of the things that made the
culture of the society distinctive. (Not incidental to another practice.)
(ii) The practice must have been developed before “contact” that is, “before the arrival of Europeans in North
America
1. cf. R v Powley ( 2003)- Held- for Metis claimants of aboriginal rights, the focus on European contact
had to be moved forward, not to the time of European sovereignty, but to “the time of effective
European control.” The focus should be on the period after a particular Métis community arose and
before it came under the effective political and legal control of European laws and customs in a
particular area.

(iii) The practice can evolve over the years as the result of contact- ( ie bone hook-metal hook & bow and
arrow- gun) but Do not qualify- contemporary practices that developed “solely as a response to European
influences” do not qualify. See harvesting timber below.
(iv) the existence of an aboriginal right will depend entirely on the practices, customs and traditions of the
particular aboriginal community claiming the right

(c) Facts: Van der Peet- defendant had been convicted of catching and selling fish that she had caught under the
authority of a Indian food-fish license. The court held that fishing for food was part of the Sto:lo society as well
with the exchange of fish, but selling the fish was not an “integral part” of the Sto”lo culture. The exchange of
fish took place, but was not a central, significant or defining feature of Sto:lo society. No right to sell.
Conviction upheld.

2. Sparrow-type obligations (rights) arise when the Crown must respect constitutionally protected Aboriginal or
treaty rights and justify interferences with those rights – no extinguishing rights
(a) R v Sparrow ( 1990) – The SCC unanimously recognized the aboriginal right of a member of the Musqueam
Indian Band to fish for salmon in the Fraser River. “where his ancestors had fished from time immemorial”
(i) The defendant had been charged with the violation of the federal Fisheries Act and because the charge
related to facts occurring after 1982 he was able to invoke the s35 of the Constitution Act 1982.
(ii) Held- That s35 did provide constitutional protection for the aboriginal right (“existing” language required
that rt had to exist at time of 1982, not extinguished rights) -- gives a measure of control over government
conduct and a strong check on legislative power. Court refused to imply an extinguishment from the
admittedly extensive regulatory control of the Fisheries Act b/c only if the intention to extinguish was
“clear and plain.” The government is required to bear the burden of justifying any legislation that has some
negative effect on any aboriginal right protected under s. 35(1)- but s35 rights are subject to regulation by
federal laws, provided that the laws meet a standard of justification.

(iii) Standard of justification test:

1. Is there a valid legislative objective that is “compelling and substantial”? Is the regulation sought to be
imposed required to complete that objective?
2. Consider the special fiduciary relationship and responsibility of government vis a vis aboriginals. Ask:
is the limitation unreasonable?
a. Fiduciary been interpreted as (Delgamuukw v British Columbia)
i. idea of priority, namely that aboriginal demands should be placed first; but this does not
demand that aboriginal rights always be given priority.
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 ii. whether there has been as little infringement as possible in order to effect the desired result;
iii. whether, in a situation of expropriation, fair compensation is available;
iv. whether the aboriginal group in question has been consulted with respect to the conservation
measures being implemented)

(b) Ct enlarged the fiduciary duty “the Government has the responsibility to act in a fiduciary capacity.”

(i) R v Sparrow, which was the Court’s first s 35 decision, extended scope of the relationship- the “general
guiding principle” for section 35 is that “the Government has the responsibility to act in a fiduciary
capacity with respect to aboriginal peoples. The relationship between the Government and aboriginals is
trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must
be defined in light of this historic relationship”;
(ii) "the honour of the Crown is at stake in dealings with aboriginal peoples (7)The special trust relationship
and the responsibility of the government vis-à-vis aboriginals must be the first consideration in determining
whether the [infringing] legislation or action in question can be justified”;
(iii) “[t]he justificatory standard to be met may place a heavy burden on the Crown,” while inquiries such as
whether the infringement has been minimal, whether fair compensation has been available, and whether the
affected Aboriginal group has been consulted may also be included in the justification test(8)

3. Other Rights:
(a) Not Selling fish: R v. NTC Smokehouse – rights not established The practice of of exchanging fish was not
sufficiently central to the aboriginal culture to qualify as an aboriginal right .
(b) Yes - Hunting/fishing on non-title lands: Rights to particular activities such as hunting, fishing and harvesting
may also exist on land to which the aboriginal people do not have title to. ( Fishing- R v Adams [1996])
(c) Yes- harvesting timber, even if originally for survival purposes. R v Sappier (Even though a practice may have
been undertaken for survival purposes, it can still be considered integral to an Aboriginal community’s
distinctive culture)
(i) FACTS: Charged w/ unlawful possession or cutting of Crown timber – to build permanent home ok? In
defence, they say they possess an aboriginal and treaty right to harvest timber for personal use. In the
present cases, the relevant practice for the purposes of the Van der Peet test is harvesting wood. The record
shows that wood was used to fulfil the communities’ domestic needs for such things as temporary shelter,
transportation, tools and fuel. I would therefore characterize the respondents’ claim as a right to harvest
wood for domestic uses as a member of the aboriginal community.
(ii) Evidence established that the wood was critically important to the Maliseet and Mi’Kmaq people pre-
contact, evolved into modern right to harvest wood by modern means to construct permanent dwelling.
Further, even though the practice may have been undertaken for survival purposes, it can still be
considered integral to an Aboriginal community’s distinctive culture
(iii) Continuity: Although the nature of the practice which founds the aboriginal right claim must be considered
in the context of the pre-contact distinctive culture of the particular aboriginal community, the nature of
the right must be determined in light of present-day circumstances; “logical evolution means the
same sort of activity, carried on in the modern economy by modern means.” So, the right to harvest
wood for the construction of temporary shelters must be allowed to evolve into a right to harvest wood by
modern means to be used in the construction of a modern dwelling. Any other conclusion would freeze the
right in its pre-contact form.

(d) Yes- hunting in Sault Ste. Marie - R. v. Powley-Métis community enjoy a constitutionally protected right to
hunt for food under s. 35. The practice of subsistence hunting and fishing was a constant in the Métis
community, even though the availability of particular species might have waxed and waned. The evidence
indicates that subsistence hunting was an important aspect of Métis life and a defining feature of their special
relationship to the land. Evidence supports the trial judge’s finding that hunting for food was integral to the
Métis way of life at Sault Ste. Marie in the period just prior to 1850 (which meets the modified time frame test)
(i) The main justification advanced by the appellant is that of conservation. Although conservation is clearly a
very important concern, we agree with the trial judge that the record here does not support this
justification.
(ii) Legislation is invalid

4. Extinguishments of Aboriginal Rights

(a) by surrender (must be voluntary and to the Crown) R v Howard [1994
(b) by constitutional amendment R v Horseman [1990]
(c) legislation w/ “clear and plain intention” to extinguish aboriginal rights (Sparrow)
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3) Aboriginal Title
1. Exclusive occupation of land, which permits the aboriginal owners to use the land in a variety of purposes. It would
obviously permit the owners to hunt fish and harvest their lands .
(a) Aboriginal title vs non-aboriginal title
(i) Source of aboriginal title- derives from pre sovereignty occupation rather than post sovereignty grant from
the crown.
(ii) Range of uses to which aboriginal title land may be put.
(iii) Aboriginal title is inalienable, except to the Crown. The Crown has to act as an immediatry between the
aboriginal owners and third parties. To pass to third parties, the aboriginals must surrender the land to
Crown.
(iv) Aboriginal title can only be held communally.
(v) Aboriginal title is constitutionally protected.

2. Guerin-type obligations fiduciary w/r/t/ land - arise in situations where the Crown has a duty to act in the interests
of an Aboriginal group
(a) Guerin v The Queen (1984) –. SCC recognized that the aboriginal title of Musqueam Indian Band to land in
BC. “a legal right derived from the Indians historic occupation and possession of their tribal lands”. Aboriginal
rights that have not been extinguished are recognized by the common law and are enforceable by the courts
(i) Fiduciary duty: The aboriginal title to the land gave rise to a fiduciary duty on the part of the crown to
deal with the land for the benefit of the surrendering Indians.
1. The fiduciary relationship is rooted in the concept of Aboriginal title, coupled with the requirement,
outlined above, that the Aboriginal interest in land may be alienated only via surrender to the Crown;
this requirement, which places the Crown between the Aboriginal group and third parties to prevent
exploitation, gives the Crown discretion to decide the Aboriginal interest, and transforms its obligation
into a fiduciary one so as to regulate Crown conduct when dealing with the land for the Aboriginal
group;
(ii) Held- This fiduciary duty had been broken and awarded damages to the Band for lease of reservation land
to golf club - $10mm.

3. Delgamuukw v British Columbia (1997) proceedings for a declaration that they had aboriginal title and self
government right over a territory in northern B.C. The SCC did not grant the declaration sought and ordered a new
trial.

(a) Test for Aboriginal Title

1. The land must have been occupied prior to sovereignty (Not “prior to contact”)
2. If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity
between present and pre-sovereignty occupation.
3. At sovereignty, that occupation must have been exclusive

(b) Source: Aboriginal title is a common law interest in land - arises from the prior occupation of Canada by
aboriginal peoples; what makes aboriginal title sui generis is that it arises from possession before the assertion
of British sovereignty.
1. Aboriginal title at common law is protected in full form under s.35(1)

(c) Scope: Aboriginal title encompasses the right to (1) exclusive use and occupation of the land held pursuant to
that title for a variety of purposes – doesn’t have to be for aboriginal practices, custom and traditions. But it’s
not fee simple—(2) use must not be irreconcilable with the nature of the group’s attachment to that land
1. E.g. occupation of land for hunting can’t use it to destroy value for such a use (e.g. for strip mining)
2. “held communally” ,
3. May not be alienated- Other than Crown. Alienation would bring to an end the entitlement of the
aboriginal people to occupy the land and would terminate their relationship with it
i. Extinguish: If aboriginal peoples wish to use their lands in way that aboriginal titles does not
permit, then they must surrender those lands and convert them in to non title lands to do so –
can exchange for non-aboriginal land in exahnge for fair consideration from Crown.
ii. The relevance of the continuity of the relationship of an aboriginal community with its land is
that it applies not only to the past but to the future as well→ as a result, uses of the land that
would threaten that future relationship are, by their very nature, excluded from aboriginal title

(d) Evidentiary Proof – oral histories ok.

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 (e) Limitation: Rights may be infringed, both by the federal (e.g., Sparrow) and provincial (e.g., Côté)
governments. However, s. 35(1) requires that those infringements satisfy the test of justification.

4. Haida Nation v BC- duty to consult when the Crown (or province) has knowledge, real or constructive, of the
potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it (esp.
where aboriginal interests are in the process of being proved), scope of the duty is proportionate to a preliminary
assessment of the strength of the case
(i) Duty to consult and accommodate - duty grounded in honour of the Crown, and embodied in s.35: In all its
dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the
implementation of treaties, the Crown must act honourably- requires that these rights be determined,
recognized and respected. Content of the duty varied with the circumstances - but may require it to consult
and, where reasonable, accommodate Aboriginal interests.
(ii) Scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the
existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title
claimed. However, there is no duty to agree; rather, the commitment is to a meaningful process of
consultation
1. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or
the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice,
disclose information, and discuss any issues raised in response to the notice. At the other end of the
spectrum lie cases where a strong prima facie case for the claim is established, the right and potential
infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable
damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may
be required
2. Duty doesn’t extend to 3d party
(iii) FACTS: This brings us to the issue before this Court. The government holds legal title to the land.
Exercising that legal title, it has granted Weyerhaeuser the right to harvest the forests in Block 6 of the land
(which is subject to a land title claim by the Haida people)- Haida people have not proven title to land.
Govt duty to consult??
1. Held- The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where
claims affecting these interests are being seriously pursued in the process of treaty negotiation and
proof – even before final detrmination.

4) Aboriginal Self –Government

a. Paramountcy of aboriginal law vs. provincial/federal?
i. Should be resolved by the Sparrow test.

b. Slatttery- The aboriginal right of self government must exist because aboriginal people were living in self
government communities before the arrival of Europeans.

c. R v Pamajewon (1996) – the aboriginal right to self government extends only to activities that took place before
European contact and only those activities that were an integral part of the aboriginal society.
1. SCC rejected a claim by the Shawanaga and Eagle Lake First nations to conduct high stakes gambling on their
reserves. In each case the gambling operations were conducted pursuant to a law enacted by the band council. It
was not a by-law of the Indian Act. They were charged with a gaming offence under the Indian Act. Larmer CJ
characterized the claimed right as a right “to participate in and regulate, gambling activities on their respective
reserve lands.” Evidence showed- that they gambled before the arrival of Europeans, it was small scaled and
informal and was never part of the means by which the communities were sustained. Court was concerned with-
the ability of aboriginal people to immunize themselves from the rules of the Criminal Code was a major concern for
the courts.

5) Definition of Treaty has been described as “unique” or “sui generis”.

i. It is an agreement between the Crown and aboriginal nation with the following characteristics.
1. Parties-Crown on one side, aboriginals on the other.
2. Agency- the signatories on the treaty must have the authority to bind their principles, namely the Crown
and the aboriginal nation.
3. Intention to create legal relations: the parties must intend to create legally binding obligations.

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 4. Consideration- the obligations must be assumed by both sides, so that the agreement is a bargain.
5. Formality: there must be a certain measure of solemnity.

ii. Principle of interpretation- that treaties and statues reacting to Indians should be liberally construed and doubtful
expressions resolved in favour of the Indians. Simon v The Queen [1985]

iii. 2 leading cases about treaties, both cases were applying s88 of the Indian Act not s35 of the Constitution Act
1982-(safe to say word treaty is similar. )
1. Simon v the Queen (1985)-Held to be a valid treaty to except the Micmac defendant from the game laws
of Nova Scotia.

iv. R v Marshall (“Marshall 3”- 2005)

1. Aboriginal treaty right: Scope of treaty right is to be determined by what trading activities were in the
contemplation of the parties at the time the treaties were made. This is correct. But treaty rights are not frozen in
time. Modern peoples do traditional things in modern ways. “The question is whether the modern trading
activity in question represents a logical evolution from the traditional trading activity at the time the treaty
was made”
2. FACTS: M and B were convicted of offences related to the selling/possession of timber, commercial logging w/o
authorization in violation of provincial forest mgmt laws. Do Mi’kmak people in NS and NB have the right to log
on Crown lands for commercial purposes pursuant to either treaty or Aboriginal title? The question is whether the
commercial logging here at issue is the logical evolution of a traditional Mi’kmaq trade activity. In Marshall, Curran
Prov. Ct. J. found no direct evidence of any trade in forest products at the time the treaties were made- evidence
supports the trial judges’ conclusion that the commercial logging that formed the basis of the charges against the
respondents was not the logical evolution of traditional Mi’kmaq trading activity/minor trade in wood products
protected by the treaties of 1760-61.

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20. Remedies
Constitution Act, 1982, s.24, s.52
Hogg, chapter 40, “Enforcement of Rights”
Schachter v. Canada, [1992] 2 S.C.R. 679
Vriend v. Alberta, [1998] 1 S.C.R. 493, per Iacobucci J., paragraphs 129-179 Constitutional Law January 2010 Page 9
Supreme Court Judgments: http://scc.lexum.umontreal.ca/en/index.html

1. Generally
a. In choosing how to apply s. 52 or s. 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. Schachter v Canada

2. The supremacy clause- for laws.

a. Generally speaking, it will be the declaration of invalidity under s 52(1) that provides the remedy for laws that violate a
Charter right, while s 24(1) provides the remedy for government acts that violate an individual’s Charter right.
(Schacter)

b. Once s. 52 is engaged, three questions must be answered.

i. First, what is the extent of the inconsistency?
1. The extent of the inconsistency should be defined:
a. 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, indeed, if the purpose is itself held to be unconstitutional -- perhaps the legislation in
its entirety;
b. More narrowly where the purpose is held to be sufficiently pressing and substantial, 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 -- generally
limited to the particular portion which fails the rational connection test; or,
c. Flexibly where the legislation fails the second or third element of the proportionality branch
of the Oakes test.
ii. Second, can that inconsistency be dealt with alone, by way of severance or reading in, or are other parts of the
legislation inextricably linked to it?
iii. Third, should the declaration of invalidity be temporarily suspended?

c. There are 6 choices of available remedies for s 52(1):

i. Nullification
ii. Temporary validity: The rationale for this remedy is that it would be better for Parliament/legislatures to
correct the constitutional defect (“dialogue”). In re Manitoba Language Rights (1985).
1. 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. For example, in this
case some of the interveners argued that in cases where a denial of equal benefit of the law is alleged,
the legislation in question is not usually problematic in and of itself. 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. (Schacter)

iii. Severance- When only a part of a statute or provision violates the Constitution, it is common sense that only
the offending portion should be declared to be of no force or effect, and the rest should be spared. 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, and then declare inoperative (a) the inconsistent portion, 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.

iv. Reading in: Applies to under inclusive statute which, usually, confers a benefit on a class that failed to include
all persons who had an equality based right to be included. Vriend. (Schachter):
1. Caution on Reading In: Regarding the reading in remedy, in some cases, 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. In such a case, it is the
legislature's role to fill in the gaps, not the court's.

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 2. 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.
3. Another way is to look at the significance of the remaining portion: has the permissible portion always
been there? If so, then it would be safe to assume that the legislature would have enacted the
permissible portion without the impermissible portion

v. Reading down – when statute will bear two interpretations, one of which offends charts and one which doesn’t.
Can. Foundation for Children (2004).

vi. Constitutional exemption -

3. Remedy clause – for govt action

a. S 24(1) is needed only where a remedy provided by the general law is not available, or will not provide satisfactory
redress- limit to the remedies that may be ordered under this section
b. In sentencing – broad range of remedy- R. v. Nasogaluak (SC 2010) – Charter violations allow reduced sentencing
i. Intoxicated driver, pulled over, cops beat him up to get him to comply. Pled guilty for drunk diving, at
sentencing ct found that cops violates Charter s.7 and 11(d). As remedy, lower granted reduced sentence of
conditional discharge, despite statutory min sentence. SC held ct could consider state actors conduct in
developing sentence relating to offense- Section 718.2(a) of the Code provides that a court should reduce a
sentence "to account for any relevant ... mitigating circumstances relating to the offence or the offender". But Ct
usu couldn’t order remedy below min sentence from Parliament- would be unlawful interference in role of
Parliament. Even under s.24(1) of charter, departure from min not warranted, although possible in other circs.
SC upheld appeals ct Imposeing min fine.

c. Under 24(1), just individualized remedy- Schachter v Canada. S 15 claim was made. Does s. 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. 32 (subsequently s. 20) of that Act? No. Section 24(1)
provides an individual remedy for actions taken under a law which violate an individual's Charter rights. (Again,
however, a limited power to extend legislation is available to courts in appropriate circumstances by way of the power to
read in derived from s. 52 of the Constitution Act, 1982.

d. Range of Remedies: There are defensive remedies (where the court nullifies or stops an act, for example by dismissing a
charge, staying a proceeding, quashing a warrant), and affirmative remedies (such as ordering a province to provide
state-funded counsel to an indigent litigant, ordering the return of goods improperly seized or a mandatory injunction
requiring positive action). Damages is sometimes appropriate, and so is an order of costs.

REASONING:
Severance or reading in will be warranted only in the clearest of cases, that is, where each of the following criteria is met:
A. the legislative objective is obvious, or it is revealed through the evidence offered pursuant to the failed s. 1 argument, and
severance or reading in would further that objective, or constitute a lesser interference with that objective than would striking
down;
B. 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; and,
C. 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.

(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. striking down the legislation without enacting something in its place would pose a danger to the public;
B. striking down the legislation without enacting something in its place would threaten the rule of law; or,
C. the legislation was deemed unconstitutional because of underinclusiveness rather than over breadth, 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.

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Vriend v Alberta

Remedy

 The leading case on constitutional remedies is Schachter

 The first step in selecting a remedial course under s. 52 is to define the extent of the Charter inconsistency which must be struck
down. In the present case, that inconsistency is the exclusion of sexual orientation from the protected grounds of the IRPA. As I have
concluded above, this exclusion is an unjustifiable infringement upon the equality rights guaranteed in s. 15

 Once the Charter inconsistency has been identified, the second step is to determine which remedy is appropriate. In Schachter, this
Court noted that, depending upon the circumstances, there are several remedial options available to a court in dealing with a Charter
violation that was not saved by s. 1. These include striking down the legislation, severance of the offending sections, striking down or
severance with a temporary suspension of the declaration of invalidity, reading down, and reading provisions into the legislation.
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.
Also, this remedy respects purposes of Charter

 In Schachter, supra, Lamer C.J. 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. These include
remedial precision (this can be achieved here; just adding words “sexual orientation), budgetary implications (not sufficiently
significant here), effects on the thrust of the legislation (no deleterious impact, because all persons protected would continue to
benefit), and interference with legislative objectives (reading in would only enhance the legislative objective).

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[7] DISTRIBUTION OF POWERS ANSWER STRUCTURE

The main issue here is _____________. In order to address this issue, we must engage in the division of powers analysis. There are two stages to this analysis, the
first being to determine the “pith and substance” of the law. The second step is to classify that essential character by reference to the heads of power under the
Constitution Act, 1867 in order to determine whether the law comes within the jurisdiction of the enacting government.

Note, here, 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. McNeil)

STEP 1: Pith and Substance Analysis

- To determine the pith and substance, two aspects of the law must be examined: the purpose of the enacting body, and the legal effect of the law

Purpose
- In order to determine the validity of legislation X, first must identify its main purpose
- To do this, we may exam: the preamble, the mischief that the law is trying to rid and, optimally, reference to extrinsic material ( Morgentaler).
- Of course, however, we must look to true purpose, not necessarily the stated purpose ( Canadian Western Bank)
- [Application]
- Thus, it appears that the Act’s overall goal is to _________
Effects
- We must also look at its effects (legal and practical), in order to determine how the law will operate and how it will affect Canadians, e.g. how it will affect
indiivduals’ rights and liabilities (Morgantaler)
- Where the effects of the law diverge substantially from the stated aim, it is sometimes said to be “colourable” (Ibid)
- [Application: try and say that the effects coincide with the purpose, and the enacting body’s attempt doesn’t appear to be a colourable one – e.g. in
Chatterjee v Ontario (A-G), the purpose and effect of the impugned Act was to take profit out of crime]

Conclusion
- The [Act] is in “pith and substance” directed to _______.

STEP 2: Assignment to Heads of Power

- The second step is to determine whether that matter comes within the jurisdiction of the enacting legislature. The heads of power in ss. 91 and 92 of the
Constitution Act, 1867 must be analysed, and it must be determined what the matter is “in relation to”
- The determination of which head of power a particular law falls under is “not an exact science”. In a federal system, each level of government can expect to have
its jurisdiction affected by the other to a certain degree (i.e. incidental effects are permitted) (Papp v Papp). However, in light of the “exhaustive principle”, we must
be able to characterize the law as falling in one of the heads in s 91 or 92.
- In this case, the question is whether the law falls under ______ or the ______ heads of legislative power.

[This step often involves little more than a review of the relevant decisions and a recitation of the principles emerging from them. e.g., if its the criminal law power,
define it; 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. One way to do it is first decide, in your head, which head it you will conclude the legislation falls under. Then, start off with the heads that it APPEARS might
support it, then disregard and then show why those heads don’t work by distinguishing the cases. Finish up by showing how it falls under the head in your head]

[REMEMBER: (i) Where there is overlap between two heads of power, it is for the court to identify the DOMINANT FEATURE of the impugned statute. Although
there may be incidental intrusion into another head over which the relevant government has no control, incidental intrusions are allowed (see, e.g. Chatterjee); (ii)
Incidental intrusion’s are ok]

Conclusion
- 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

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[12] CHARTER ANSWER STRUCTURE

(1) Application of the Charter: s 32, Constitution Act, 1982

- Does the Charter apply in this situation?

(2) Is there an override provision in the law: s 33

- Note: Only mention this if there is an impugned Act (legislation). Does not apply to government actions.

(3) Infringement of a Charter right

- The onus is on the applicant/claimant to demonstrate that an infringement has occurred (presumption of constitutionality)

a. What is the purpose or effect or the law/action (Big M)

b. Does it’s purpose or effect infringe a Charter right? [Note: This is where you outline the law of the relevant
Charter right in relation to how what the right protects, e.g. does the effect of the legislation infringe
freedom of religion? To answer that, first must define what “religion” is as per s 2(a)]
c. Is the infringement more than trivial? (No Charter right, including freedom of religion, is absolute. Charter
prohibits only burdens or impositions on religious practice that are non-trivial) (R v Jones)

(4) Section 1 analysis (Oakes)

- Burden shifts to legislature/Parliament/government to justify violation
- The Charter does not guarantee rights absolutely. The violation may be lawful if it results in a reasonable limit,
prescribed by law, that is demonstrably justified in a free and democratic society.

a. Is the limit “prescribed by law”? (Consider whether the law is accessible, precise and not vague. Re:
accessibility, a statute or regulation suffices: Dolphin Delivery. Re: precision and vagueness, make a
judgment call)

- The next step is to apply the Oakes test:

b. Does the legislation/action have a sufficiently pressing and substantial objective?

c. 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.
Requires a consideration of alternatives available to government. In making this
assessment, the courts accord the legislature a measure of deference, i.e. there is a
margin of appreciation) ( Edwards Books)

(iii) Is the law proportionate in its effect? In other words, when one balances the harm
done to the claimants’ (list the right infringed) against the benefits associated with
(state what the impugned law essentially does), is the limit on the right proportionate
in effect to the public benefit conferred by the limit?
- Salutary effects?
- Deleterious effects?
- Balancing the salutary and deleterious effects of the law, I conclude that the
impact of the limit on (name the infringed right) (is/is not) proportionate.

d. Conclusion? (e.g., Based on the analysis above, I conclude that I conclude that the limit on ____ is/is not
justified under s 1)

(5) Overall conclusion

- Therefore, _____ (does/does not) offend the Charter, and is therefore constitutionally (valid/invalid)

(6) Remedies: ss 24 & 52

- The next step would be a Court imposing a remedy

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