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Summary – Peter Hogg's – Constitutional Law of Canada

Analysis for Federalism Grounds - How laws characterized:

courts ascertain the “pith and substance” (or “matter”) of the law
-most important consideration is what the purpose of the law is. If the pith and
substance is within the powers of the enacting body, then it doesnt matter that
the law affects matters outside the powers.

remember that a matter can be in relation to more than one head of

power – before saying not within a level of govt's competence – is there
another head of power to consider?

And then if it is a matter within their heads of power ... must still make
sure it isnt a violation of the Charter.

Federalism and Judicial Review

-Presumption of constitutionality -
1. judicial restraint – strike down law only if clearly offends constitutional
2. if validity turns on fact – Govt need not prove strictly (“rational basis” for
the finding is sufficient)
3. the law should be “read down” where possible – 2 interpretations (one
const'l one unconst'l, choose the const'l interp)

if conflict btw fedl and provl law --> federal law prevails

the “federal principle” = power divided so that fedl and provl govts each w/in
their sphere are co-ordinated and independent

Senate is drawn from regions – not equally by povince –they are:

Ontario, Que and maritimes – 24 senators each
4 western provinces – 24 each
Newfoundland – 6 senators
Yukon / NW Territ – 1 each
Nunavut – 1 senator

note the 7/50formula rejects concept of regions in favour of equality of the

but the “regional veto statute” passed by Parlt incorporates regions into the
it gives indiret vetos to Ontario, BC, Alberta and Quebec – compromising the
equality envisioned by the constitution amending formula

Goals of Confederation
“subsidarity” = decisions affecting individuals made by level of govt closest to
that is why provinces have auth over : property, civil rights, courts, police,
minicipal bodies, hospitals and education

collective beneft from economic union financial strength and defence

that is why federal govt has auth over : customs, banking, taxation, national
defence, interprovl trade and commerce

(inconsistent w/ subsidarity – fed auth over : marriage and divorce, penitentiaries,

and the criminal law)

Reasons for federalism:

1.efficiency and accountability (fed: national important matters; prov: locally
important ones)
2.ability for provinces to try out a policy locally before it becomes nationwide
eg. no fault insurance, medicare
3. avoiding concentration of power that can lead to tyranny

Terms of The Constitution:

-provinces given enumerated powers and fedl govt gets the residual powers

Enumerated Fedl Powers:

91(2) Trade and commerce
91(15) Banking
91(26) Marriage and Divorce
91(27) Criminal Law
91(28) Penitentiaries

91(3) indirect and direct taxes
92(2) provinces can levy direct taxes only (ie cant have a tax on bananas – thats
indirect, can have a provincial income tax = direct

“Prinicpal Federal Powers” = residual power & trade and commerce power
“Principal Provincial Powers” = property and civil rights in the province

-fedl govt has power to “dissallow” provl laws (s90) --> but this is left to the
courts now

Appointment of Lieut Gov

Fedl govt appoints L-G but once appointed he/she will only act on advice of provl
“Reservation Power” - not used anymore either – permits L-G to resreve a bill for
Fedl got to consider before giving it royal assent

Appointment of Judges
s96 – exercised whenever judge's position needs to be filled
fedl govt appoints and pays the salaries of the SCC

Supremacy of the Constitution

s52(1) expressly affirms supremacy of Const over all other laws
supreme = biding on and unalterable by each of the provl/fedl authorities
rigid --> Part V (amendment) usu req. both Houses and 50 % of the pop., through
2/3 of the provl legisl

Judicial Review:
whether a partic statute comes w/in the powers confered on that legisl body by
the Const
if not, statute is ultra vires
enforcement of Charter restrictions and other non-federal, value-protecting ones
judges not responsible to the electorate but might end up making policy through
judicial review

judges must only decide cases based on the information presented to them in
no power to initiate enquiries; no inestigative/research staff; no power to
enact a law to replace one that is declared invalid

Charter -->intended to (and did) increase the scope of judicial review

Principle of Effectiveness: athough unonstitutional, a de facto secession would
have to be eventually legally recognized if the seceding govt achieved:
1. effective control of a territory
2. international recognition

Cooperative Federalism
-joint or complimentary action of more than one legisl body
-implementing nationwide standards and other public services
-shared costs programs
-adapting to change together
-networ of relationships btw central and regional govts to allow continuous
redistrib of powers and resources

Judicial Review on Federal Grounds

distribution of powers argument for invalidating a law – more forceful than Charter

Is the Law Valid?

1. is it within the law -making authority of the enacting body?
2. If so, then is it consistent with the charter?
Authority: s52 – laws contrav the constitution are of no force or effect
Since the Charter only applies to matters within govt authority – the argument can
only succeed for either 1 or 2 . (Cant be both ultra vires and violation of Charter)

“Power of Override” - s33 provisions that override th Charter must declare they
are to operate notwithstanding the Charter.

Review on Federal Grounds:

1. Identify the “matter” (or pith and substance) of the law – court must first
characterize the law; then interpret the distribution of power provisions to
see which applies (s91/92)
2. assign the matter to the appropriate head of power – becomes a formality

“Matter” = pith and substance = the dominant / most important characteristic of

the law

“characteristic” refers to constitutional concepts that relate to division of powers

eg. characteristic : “insurance regulation” --> property and civil rights in the
province s92(13)
characteristic : Bank Act = “law in relation to banking” --> Banking s91(15)

Problem: when the law has part fedl and part provl characteristics
Bank of Toronto v Lamb – provincial law levied tax on banks (direct taxation =
provl powr but banks = fedl power) Court held: the dominant / most important
aspect of the law was what mattered: raising revenue (not regulating banking)
the law was upheld as in relation to tax and “merely affecting” banking

Alberta Bank Tax Referece 1938 – court struck down provl law that imposed
special tax on banks --> pith and substance of the law was to discourage
banks from operationg in Alberta threfore the “matter” it was in relation to was
banking, the taxation aspect was incidental to that dominant aspect

Factors that influenced the court: singling out banks; extra high tax rate; part of
pakage of
social credit policies inimical to banks --> so focus was on banks not on tax.

but note : “singling out” alone is not enough

Van Buren Bridge Co v Madawaska - provl law singled out railway co. which
operated intl bridge – law upheld

Sommers v Sturdy – provl law auth compulsory inspec of bank records in civil litig.
- uphed as in relation to civ pro – even though it singled out banks

“Double Aspect Doctrine”

permits both / either levels of govt to enact lawsin the same general field (Hodge
v The Queen)
eg. provl and fedl offences of careless driving and failuure to remain at the scene
of an accidenct – one under property and civil rights 92(13) , the other under
criminal law 91(27)

If those cocurrent jurisdiction laws conflict --> doctrine of federal paramountcy

invoked and the fedl law prevails

For pith and substance analysis – look at the social / economic purposes of the

Baby Seals – Ward v Canada – fedl law prohib sale of baby seals – SCC could
characterize the law as marketing = within prop and civ rights (92(13) ) but
instead characterized it by its purpose – which was to indirectly limit the killing of
baby seals --> ie management of fishery = within fedl power over sea coast and
inland fisheries (91(12)).

What evidence is admissable to determine purpose of the law?:

-royal commission reports
-law reform commission reports
-got policy papers
-parliamentary debate

for characterizig the entire statute for judicial review

court looks beyond the direct legal effect to the underlying purpose
Texas Mines – ore tax made it uneconomical to sell ore outside the province the
effect was on interprovincial trade

Central Potash Co v Govt of Sask. - provl scheme to proration potash – SCC found
that nearly all of Sask's potash was exported – and the province had abundant
reserves – led court to characterize the law as in relation to interprovincial trade
and intl trade not conservation of a natural resource

The court is not concerned with whether the purpose is best fulfilled by a
particular law – but with what the purpose of the law really is.

Re Firearms – public safety – law criticized as ineffective to that end – but court
was satisfied that that was the purpose – “effectiveness” is a consideration for
Parlt not the courts

Ward v Canada – McLachlin CJ – “the purpose of legislation cannot be challenged

by proposing an alternate, allegedly better, method for achieving that purpose.”

Colourability Doctrine
Statute that formally looks like a matter within jurisdiction but in reality is
addressed to a matter outside jurisdiction – it may not even mention the purpose
but is “colourable” as having that purpose.

Re Upper Churchill Water Rights (1984) – Nfdld law seemed valid on its face –
because Nfld had power to expropriate property w/in its borders
but Court held: pith and substance of the statute was to deprive th co of fulfulling
its contract to suply Hydro Que at below market rates – which was outside the
power of Nfld because the contract created rights in Quebec
-statute itself made no mention of cotract = colourable attempt to interfere with

R v Mogentaler (No 3) – purp was decl to be prohib of privatization of health

services – on the face of it = health measure and w/i prov competence – but Court
found the stat was stimulated by proposal by Dr M to open a clinic in NS
so the proper characterization was criminal law -> fedl jurisd and therefore invalid
-the other 8 procedures in the act were included to create a smokescreen to
conceal th true purpose of the legisl

Colourability Maxim : legislation cannot do indirectly what it cannot do


*but this one is rarely a successul argument

Criteria of Choice
If the court is assessig whether a law should be enacted at one level or the other –
(because the answr isnt obvious) this becomes a policy decision – the court must
consider constitutional “values”, using the allocation of power in the Const as a

Where there is little or no guidance --> calls for judicial restraint in federalism
cases (ie minimal interference)...

Presumption of Constitutionality

*only applies to review on federalism grounds

-burden of proof on those challenging the statute

− legal consequences:
− when there are competing plausible characterizations the court chooses
that which supports the statute (ie allows them to uphold it)
− where the validity of a law requires the finding of fact (eg existence of
emergency) govt need only show a “rational basis” for that finding
− where possible the law should be “read down” to come within the enacting
body's powers (this one does apply to charter cases also)


-appropriate when 2 parts can be independent enough to be conisdered separate

-enacting body would have enacted one part even if it didnt enact the other

(rarely successful argument) more common in Charter cases

note: Charter review not based on pith and substance of the law – it looks at
whether the purpose or effect abridges a Charter right

Reading Down
= judicial restraint

Reading down doctrine = wherever possible a satute is to be interpreted

as being within the power of the body enacting it

-presumed to have intended the meaning that is within its powers

Interjurisdictional Immunity

Laws that are in relation to a matter w/in jurisdiction do not become invalid simply
because they affect a matter outside jurisdiction – there are 3 possibilities....

3 ways to attack a law that purports to apply to a matter outside jurisdiction:

1.Validity of the law : Characterize the law so that it falls outside jurisdicition =
law is invalid
2.Applicability of the Law : Read down an otherwise valid law so as not apply to
a matter outside its jurisdiction = law is inapplicable
--> gives rise to “interjurisdictional immunity”: does not require the existence of
conflicting law at federal level for the federal undertaking to be “immune” to the
provincial law
3.Operability of the Law : Apply doctrine of paramountcy so that the law is
rendered inoperable to the extent of the inconsistency = law is inoperative (to
that extent only)
In this case there is a conflicting law at the federal level

Federally Incorp Co.s

-courts may read down provl stats exempting fed-incorp co.s = they are given
interjursid immunity

Federally regulated undertakings

-are immune to provl laws which might “steralize” them

Toronto v Bell – interprovl co. immune form provl law requiring municipality's
consent to erect telephone poles

“Vital Part” Test:

Bell 1966 case – SCC held Bell was immune from a provl min wage law that
“affected a vital part of the management + operations of the undertaking”

Irwin Toys v Quebec – provl aw prohib advertising at childrend - Court held: only if
a provl law indirectly impairs a federal undertaking could it be given immunity

Ontario v CPR – CPR (fedl undertaking) bound by Ont Enviro Protec Act – because
there were options for CPR to abide by the law w/o immpariment – and the Act
was not directy aimed at the magment + control of that undertaking

Cdn Western Bank v Alberta – new broader test:

Interjurisdictional Immunity would only be granted where a “core competence”
of Parliament (ie functions under a head of power) or a “vital / essential part of an
undertaking it duly consitutes” would be impaired by a provl law

-impairment is enough - did not have to “sterilize” the undertaking , only that it
puts the core/vital part in jeopardy

“vital part” of an undertaking – only those functions that were essential,

indispensible or necessary to the federal character of the undertaking

Rationale of Interjurisdictional Immunity

-no conflicting federal law...but heads of federal power in the Const grant powers
to the federal Parlt that are exclusive and deny power to the provincial
-a provl law directed at a fedl undertaking would be invalid so should a law
that would have the same effect

Problem: Whether to apply the pith and substance analysis or the

interjurisdictional immunity doctrine?

Prol law in relation to a provl matter may validly affect a fedl matter
Answer: use pith and substance where the law does not affect the core of a fedl
subject --> that which makes it a fedl jurisdiction matter.

If the provl law does not affect the core -then the pith and substance doctrine
applies and the law validly applies to the fedl undertaking

note : courts less reluctant to apply pith and substance then to grant immunity

Interpretation of the Constitution

General Principles:

s91 --> exclusively Fedl Parlt
s92 --> exclusively Provl Legisl

exception : laws with a double aspect – 2 matters

both levels of govt can enact those laws

mutual modification

courts avoid overlap of powers – eg. “trade / commerce” in s91(2) would overlap
with property and civil rights s92(13) if it werent restricted to “interprovl and intl
trade / commerce” and likewise 92(13) had to be restricted to local trade.

Ancillary Power
when one level enacts law w/ ancillary or incidental effect on subject belonging to
other level's jurisdiction --> that legisl power becomes concurrent (not
exclusive) – allowing the level encroached upon to retain its power over that

-the “rational, functional connection test” allows each enumerated head of power
to embrace laws that have some impact on matters entrusted to the other level

For major encroachments – stricter test: the impugned provision must be

essential to the legislative scheme

For minor encroachments – a functional relationship with the scheme of the act
is all that needs to be shown

3 provisions confer concurrent powers:

s92A(2) export of natural resources

92A(3) concurrent w/ fedl trade and commerce power

s94A old age pensions and benefits conferred on Parlt – concurrent provl power

s95 agriculture and immigration

2 doctrines provide further concurrence:

1. double aspect doctrine – one aspect w/in fedl list another aspect w/in provl
2. pith and substance doctrine – comes w/in one list but incidentally regulates
a matter in the other

Conflict btw concurrent powers is resolved by Fedl Paramountcy Doctrine -> Fedl
law prevails

Laws that are too broad / vague come within neither power – law must be
particular enough to be characterized as in relation to a certain matter
– Anti-Infl Reference – court refused to make a topic as vague as “the
containment and redirection of inflation” a federal power under pogg. Something
had to make pogg laws distinct from provincial matters.


legislative powers have been distrib exhaustivley : matters that do not fall w/in

if local / private nature --> provincial s92(16)

of national concern --> federal pogg s91 intro

Progressive Interpretation
the general language used to describe the classes – not to be frozen in time
the Const is to be read in today's meaning of the words

Living Tree – Const grows and expands w/in its natural limits.
eg. marriage – expanded to incl same-sex partners

cp originalism – courts forever bound by the original understanding

Const is organic – cannot be amended easily but needs to support the powers
needed by both levels to adapt to change.

Unwritten Constl Prinicples:

democracy, constitionalism, independent judiciary, protection of civil

liberties and federalism

-are implied in the text and sometimes enforced as though they were express

Re Remuneration of Judges – SCC held that jud indep was one of the unwritten
princips – held 3 provl statutes that reduced judges salaries were unconst (despite
the fact that there are specific provisions which deal with these matters in the
Const s99, s11(d))

some unwritten principles too broad to lead to invalidity – such as “rule of law”:
BC v Imperial Tobacco - no constl objection to laws that singled out an industry
for special treatment, or special advantages to govt - even denial of a fair trial
would not invalidate a statute (there is no Charter guarantee of fair trial where
only money is involved).

De Savoye v Morguard Investments – full faith and credit rule – courts of each
province are to recognize the judgments issued by other provinces



Laws enacted by same legisl body (eg 2 fedl laws) apply:

“doctrine of implied repeal” - later stat deemed to replace the former to the
extent of the inconsistency

Laws enacted by 2 difft legisl bodies (provl and fedl) appy:

“doctrine of fedral paramountcy” - if each valid and inconsistent with each other
fedl law prevails
= irreconcilable conflict - to the point where the same citizen is told to do
opposing things

if 2 laws in harmony (provl law duplicates the fedl law) no inconsistency.

Impossibility of Dual Compliance

Examples of inconisistency (ie dual compliance impossible):

1. banruptcy – fedl law stip one order of priority, provl law stip another (and
there are insuff assets to pay both)
2. fedl law givig Japnese “equal” empl rights – provl law restr those rights for
3. fedl law grants custody to wife, provl law grants custody to husband

BC v Lafarge – if provl law req prov approval of a project and fedl law req fedl
aproval – and one denies the approval but the other grants it – fedl decision
In this case – the SCC held : mere reqt of municipal approval gave rise to
operational conflict – therefore no reqt to seek approval at all.

Frustration of Federal Purpose

If the effect of the provl law is to frustrate the fedl law's purpose = inconsistency

step 1: determine purpose of fedl law

step 2: decide whether effect of the provl law would be to frustrate that purpose

Law Society of BC v Mangat – Fed Immigration Act parties in procceedings

before the Refugee Board could be represented by a non-lawyer
BC Legal Profession Act prohibited non lawyers from practicing law, incl
appearing before a fedl Administrative Tribunal – although one could comply with
both laws by appearing with a lawyer – the purpose of the fedl Act was to est an
informed, accessible and speedy process – and to allow parties to retain
iexpensive assistance from someone who spoke their language

compliance w/ the provl law would go contrary to Parlts purpose in enacting the
representation provisions = conflict in operation--> result: Law Society
provisions were inoperative as far as their application to the Refugee Board

Negative Implication

Covering the Field (aka “negative implication test”)- not the approach in Can.
(here, a provl and fedl law can operate in the same field)
only laws that expressly contradict ea other invoke paramountcy doctrine

exception: Express Extension of Paramountcy – fedl Parlt can expressly seek to

“cover the field” as long as that field is within their powers – eg s 88 of the Indian
Act- provides that prol laws cannot mae provision for any matter provided for in
that Act – those laws will be inoperative whether or not they actually conflict with
the Indian Act.

An inconsistent provl law is not made ultra vires, invalid or unconstitutional – it is

stillvalid just not in operation until the federal law is repealed.
Once that happens the provl law will automatically be revived.

cp Interjurisdictional Immunity – which renders the provl law “inapplicable” and

ultra vires - because provl laws cannot affect a vital part of an undertaking in
federal jurisdiction


Property and Civil Rights

note that the pogg power includes matters that would otherwise be “property and
civil rights” but which have a national dimension which places them within federal

s92(13) places – family, torts, succession, property, and contracts laws within
provl jurisd

s92(16) confers residuary power over all matters of a local nature in the province
– usu invoked as an alternative to s92(13)

-not mentioned in the Constitution – but reg of contract --> povl power
regulation of partic industry w/in province --> provincial power

Fedl govt tried unsuccessfully to claim this thorugh licensing reqts

What did succeed was the Wentworth Insurance case – where a fedl law that
applied to insovent insurance co's was upheld under the insolvency power s91(21)

the following fall outside s92(13):

-industries named in s91 (like navigation / shipping, banking)
-interprovl / international transport/ communication
-pogg industries (aeronautics, atomic energy)

92(13) also covers gaps in fedl power:

Trade and Commerce – manufacture or sale of margarine where fedl law only
prohib importation

Tax Power – cannot be used to regulate insurance industry

Interest Power – cannot be used to regulate terms of loan , other than interest

Criminal Law power – enforcement of closing hours of busniessfor religious

reasons struk down) but not for secular reasons

92(13) incl
enforcement of professional standards (eg law society)
labour relations --> standards, min hours of work, unemployment insurance,
(as long as not federally regulated idustry* – but even where important fedl issues
are at stae like unemployment)

*still requires funtional or operational connection btw the employment and the
federal undertaking – Interprovl Railway (=fedl undertaking) operating hotel
(functionally separate from the railway – therefore provl labour laws applied)

cp Commission du Salaire Min v Bell – no fedl in wage law at the time – did Que's
law apply?
SCC held: provl law was inapplic (even though this left its workers unprotected)
rates of pay, hours of work = vital part of the (fedl) undertaking and so under excl
fedl jurisdiction


-control market; uniform quality standards; inspection; cosumer protection;

eliinating dangerous goods; decpetive arket practices

SCC upheld fedl regulation of trade in oil – Caloil v AG Can; and in Murphy v CPR –
even though it covered purely local transactions
=significant expasion of fedl power

reasonning: maretig of products which flow across provl boundaries

(one prov produces, another consumes or transports it)

Shannon v Lower Mainland Dairy Board – provl scheme affected milk products
produced outside the province - court held that was only incidental to an
essentially intraprovicial scheme

law enacted by prov to regulate market will be upheld if:

it is “in relation to” intraprovl trade and commerce and “merely affects”
interprovl trade

Manitoba Egg Reference – Man Que and Ont using marketing plans to discriminate
agaisnt an out of prov product (because they had a surplus) – so the Manitoba
scheme held to be unconstitutional – struc down because not a case of “merely
affefcting” interprov trade but of attempting to regulate it.

Central Potash case – provl scheme characterised as directly aimed at the
production of potash for export” (since almost all of it was exported) and struck
also because potash was in abundance -
-if the production controls are designed for conservation purposes – court will
uphold them
(see s92A(1)(b))

Securities Regulation

Trading falls w/in 92(13)

except : federally incorp company

Test: does the degree of provl control amount to a denial of an essential attribut
of corporate status (eg issuing securities)

also regulatd under fedl law in case of fed co.s

and crim law used to punish securities fraud, etc
and 91(2) auth reg of interprovl securities trades


creation and transfer of property rights – 92(13)

Switzman v Elbling – law to prohibit use of house to propogate communism =
held not to be property law
Bedard Dawson – prohib against use of house as disorderly house = property law
Johnson v A-G Alberta - provl law denying property rights in slot machines and
auth confiscation – had court divided on whether property law.

Criminal Code --> Federal power 91(27); but in practice administered by Provs
92(14) – which author. prov'l police and prosecution of criminal offences.

91( 27) power over criminal law and procedure – except constitution of criminal
law courts
92( 14) administration of justice civil and criminal incl constitution, maintenance
and organization of provincial courts and civil procedure
92( 15) power to impose punishment/fines for enforcement of any provinicial
law w/in s92 matters

correctional instit: 2yrs+ penitentiaries, federal, 91(28)

<2yrs, prisons, prov., 92(6).

Defining “criminal law”. Margarine Reference: Privy Council: the law met req'd
prhibition + pumnishment framework BUT economic object of law of protecting
(dairy) industry from competitors made it really a law whose pith and substance
was in relation to property and civil rights in the province.

SCC observed, affirmed by PC: prohibition not “criminal” unless served a public
purpose which can support it as being in relation to the criminal law. Eg., public
peace, morality, security, order, health, and more.

cp. P.A.T.A. case – where court upheld use of criminal law power to proscribe
undesirable commercial conduct – (anti-competition laws).
Also upheld, false prospectus provisions (securities law) under the criminal law
power – Smith v The Queen [1960].

Criminal law power now used to proscribe undesirable commercial practices as

much as used to curb violence/ immoral conduct in the past.

Driving Offences
Boggs v The Queen: crimi offence to drive w/ susp lic. --> public purp element =
road safety but theaw was struck down because suspension could be for non-
public safety reasons like not paying for insurance or taxes. Must be a completely
public purpose objective not partial – the law will not be read down or severed,
per Estey J.
If the law had been confined to situations where lic had been susp for a viol of the
CC then the prohib could have been upheld. It was the unpaid insur type
suspensions that made it unconsitutional because no grounds for exercise of
criminal law power (or atleast a combination of valid and invalid grounds, not ok)

Protection of the Environment

upheld as valid public purpose for criminal law power – R v Hydro – Quebec upheld
validity of Can-Enviro Protection Act.
and protectin of animals from cruelty
public purpose that will = “criminal law”
Ward v Canada (2002)– “purpose” of law is not everything. New analysis: what is
the law “driven by”?

in Ward – fed reg prohib sale of baby seals – NOT crim law – did not matter that “a
purpose” of law wa to limit killing of baby seals – law ws driven by resource
depletion due to large scale harvesting, and not inhumane methods of killing.
since the “ultim purpose” was to manage fisheries = not done under the criminal
law power.
But note: law was upheld under the fisheries power

note also – protection of natural resource – may need to show the resource is at
risk for it to come under “environmental protecttion” and federal jursidiction.

“Harm principle” not a requirement: R v Malmo-Levine – argument that no harm

caused by marijuana. SCC identified harms that did exist but stressed that harm
not nec to make a valid criminal law.

Food and Drugs

margrine reference : protecting an industry = provincial competence. Criminal law
does not support laws with purely economic purpose.

R v Wetman – laws rel to manuf/sale of dangerous or mislabeled goods = within

criminal law power

cp Labatt Breweries (1979) – alcohol content in relation to description on labels

not related to health. (that “lite beer” should b 2.5 % or less)
per Estey J – crim power CAN be used to protect health and to prevent deception.

so FDA can regulate unsanitary storage (Wetman) but not compostitional

standards (Labatt)
(note Hogg: Court should have deferred to Govt's view that labelling 4% beer as
“lite” was deceptive).

Medical Treatment of drug addiction -

Schneider v The Queen – BC Heroin Treatment Act= w/in prov'l power over public
health as a local or private matter s92(16). What about detention of drug addicts
for up to 6 mos.? : Any coercion involved was “incidental” to the public health
purpose. (per Dickson J).

Tobacco -

RJR MacDonald v Canada (1995): Tob Products Control Act prohib advertising of
cigarettes, etc and req'd health warnings on packaging.
Court: health warnings = public purpose element satisfied
advertising = ? normally falls w/in 92(13) – not prohib sale, manuf and possession
– all still legal and that is the harmful part – advertising not a “dangerous act” in
But since the feds had power to prohibit use due to its harmful effects – this
encompassed power to take a lesser step of pohibiting advertisement. Sdame
underlying principle was protecction of the public AND not feasible to completely
ban use of tobacco.
Law's pith and substance was criminal – this was not altered by the “circuitous”
path taken by Parlt (ie not directly banning tobacco)

Note: although held to be w/in crim law power – struck down for infringing s 2 (b)
Charter – freedom of expression. Until new version came out – less sweeping ban
on advertising and upheld under s1 of the Charter as a reasonable limit on

“Criminal Law” = 1. prohibition + 2. penalty + 3. typically criminal public purpose
(-->eg. protection of health - RJR MacDonald; Protection against deception - Labatt
Breweries; Protection of the Environment - R v Hydro-Quebec; Commercial
activities contrary to public interest – PATA Case (1931))

Health - Parlt can legislate against conduct that is dangerous to health.

Court upheld prohib as valid exercise of 91(27) in Morgenthaler v The Queen
protection of state interest in the fetus = principal objective of the law.

Morgenthaler v The Queen (1988) – SCC struck down the criminal prohib against
abortions as contrary to s. 7 of the Charter (life liberty and security of the person).

Provinces cant enact abortion laws either – criminal law would have to be the
source of power: Re Freedom of Informed Choice (Abortions) Act; and
R v Morgenthaler (No 3) [1993] – provl law requiring abortions be performed in

Competition Law

Board of Commerce Case (1921) : Combines and Fair Practices Act; and Board of
Commerce Act both held to be unconstitutional – prohib combinations detrimental
to public interest, conferred extensive powers on Board of Comm to determine
what = undue profits and fix max prices.
neither POGG power, trade and commerce power nor the criminal law power could
support the laws. Held not to be within the “domain of criminal jursiprudence”.
BUT later on...
PATA Case (1931) – Privy Council took back domain crim juris theory and
extended the realm of the criminal law power to incl commerce. Deferring to
Parlt's view of certain commercial activities being contrary to the public interest
and the need to supress them.

1935 – prohib of anti compet price discrim added to Ccand upheld : AG BC v AG

Can (Price Spreads)

1951 – prohib of Resale Price Maint upheld: R v Campbell

1952 – dissolution of illegal mergers

Goodyear Tire & Rubber Co v the Queen 1956 – upheld prohib order as within crim
law power

Now, Competition Act – powers not upheld by criminal law power- no conviction
required – penalties not awarded by criminal courts, only civil. Instead upheld by
s91(2) (Trade and Commerce Power) : GM v City Leasing (1989). (Although some
criminal sanctions do remain).

Sunday Observance Law

Thought to be provincial matter until 1903, A-G Ontario v Hamilton Street Railway:
Lords Day Act struck down as criminal law and therefore federal power. Limitation
for religious purpose - criminal law; safeguarding morality = typically criminal
purpose (makes it a criminal law).

Affirmed in Henry Birks Case, 1955 – prov law stip 6 RC holidays throughout the
year for closing shop. Court : same as Sunday observance law and amounted to
criminal law.
1906 – Federal Lords Day Act upheld as valid exercise of 91(27). (R v Big M
Drugmart 1985)

Note: if the Federal Act did not have a religious purpose – req'd day of rest would
be outside federal competence.
But that religious aspect was held to make the law unconstitutional on Charter
grounds – since purpose was to compel observance of Christian Sabbath – contra
Freedom of Religion.

So for such laws to be valid they must be exercised not for religious purpose and
by the provincial govt. As in Lieberman v The Queen: prov law reqd pool room and
bowling alleys to close on Sundays and btw midnight and 6 am on weekdays.

Cp new attack on sunday closing laws post Charter – Edwards Books and Art: SCC
law req “pause day” for secular purposes = valid exercise of prov power relating
to civil and property rights in the province 92(13). Ok that Sunday usu had a
religious undertone, aslong as wording of the statute showed secular purpose of
the Act.
*In Edwards Books: Court accepted that although purpose secular, effect was to
limit freedom of religion. But justified under s.1 – cp Big M where Court refused to
uphold under s.1)

Gun Control

1995 Parlt enacted the Firearms Act – expanded existing rules requiring all guns
to be registered and all owners to be licensed.
Re Firearms Act (2000) : SCC upheld the Act as valid execise of the criminal law
power. Purpose of Act = restrict access to inherently dangerous things.
Legisl history: concerns with violent crime,domestic viol, suicide and accidents –
all facilitated or worsened by easy access to guns.
All requirements of Act directed to public safety: background checks, and safety
courses reqd for license. And registration requiring each gun be id'd by serial
number connected with a licensed holder. *Focus was not property of the guns
like it was in provl gun registry. **Effect on property aspect incidental to the
main purpose of public safety (=legitim criminal purpose).
Act not “regulatory” either: it prohibited possession of gun w/o licence and
imposed a penalty for breach.

Re Firearms Act:

-Pith & substance directed to enhancing public safety. Purpose of the Act:
deter misuse of firearms, control people who have guns and control specific types
of weapons; aimed at “mischiefs” such as: suicide, accidental deaths, illegal gun
trade. History of legislation: limited expansion of pre-existing gun legisl. -
historical public safety focus. Effects of the Act: suggest the Act essentially
designed to promote public safety.

-3 criteria for criminal law met: 1. prohibition 2. penalty 3. 1&2 connected to

typically criminal purpose: namely, gun control (historically valid crim law), and
regulation of guns as dangerous products.

-Act did not amount to “regulatory legislation” - not too complex to detract from
criminal nature – Registrar not given undue discretion, but explicitly subject to
court supervision – prohibs/penalties not regulatory in nature (ie confined to
ensuring compliance with a scheme), but independently serve purpose of public
safety – PLUS Parlt is allowed to use indirect means to further the end of public

-cannot sever the licensing + registration provisions --> because tightly linked
to purpose of the Act

-Court had to be satisfied that upholding the Act did not upset the balance of
It was satisfied that the effects on provincial jurisdiction merely incidental:

1. mere fact that guns = property not enough to make “pith & substance”
2. provinces' ability to reg property/civil rights aspect not hindered
3. double aspect doctrine permits Parlt to address safety aspects of firearms
even though they may be “property”.
4. Fedl govt not entering a “new field” bc gun control has been subject of fedl
law since Confederation.
-Act was not a colourable intrusion

note: public morality element NOT an absolute requirement for enacting a

criminal law.

-finally, not up to court to determine whether cost or effectiveness of Act makes it

the best way to achieve its purpose – Fedl Parlt is the judge of that.

Prevention of Crime

Prevention in general may result in laws that are validly enacted under the
criminal law power but do not conform to the usu. crim law format.

Eg.1 NCR (accused persons who have a mental disorder and so deemed not
criminally responsible) – preventive aspect of crim law power allows for detention
of NCRs even though NOT convicted of any crime – on basis that they are a threat
to society – Note: once not deemed a significant threat, the criminal justice
system no longer applies to them (Winko).

Eg. 2 Persons “unfit to stand trial” (by reason of ental disorder) - ie., charged with
crime but not tried. - criminal procedure aspect of criminal law power allows for
detention until they can stand as there is an unresolved criminal charge. (and in
order to safeguard their s7 Charter Right to liberty, that power must also incl the
power to discharge a person who is permanently unfit to stand trial: R v Demers)

Eg. 3 Young Offenders - Also not “criminal” Federal Juvenile Delinquents Act –
valid exercise of criminal law power – even though expressly provides Juvees not
to be treated as “criminals” but to be “treated with such wise care as to
stregnthen better instincts”.

Criminal Law and Civil Remedy

Fedl Parlt does not generally have the power to create civil remedy – if pith and
substance of a Federal law is the creation of a new civil cause of action, the law is
invalid. (s92(13) prop and civ rights power).

MacDonald v Vapor Canada : s 7(e) of Trade Marks Act (fedl stat), prohib
“business practices contrary to honest commercial usage in Canada” – no criminal
sanction, and civil relief was granted in a later section. (incl account of profits,
injunction and damages). per Laskin CJ, s7(e) was essentially an extension of
civil liability , therefore under s92(13).

note: if pith and substance is some other federal matter, which prov civil remedy
then ok.
(the remedy is valid as incidental to the main purpose of the law),
(Trade Mark-related civil remedy in same act would be valid under 91(22).)

Papp v Papp: custody of children = 92(13) matter, could Divorce Act prov for
custody in dissolved marriage? Upheld on the basis of a “functional and
rational connection” btw the custody provs and the rest of the Act. --> this
reasonning also applied to maintenance

The functional and rational connection test has also been applied to civil remedies
found in:
corps law for insider trading law; fed compet law for anti-compet conduct; fedl
TM law for passing off.

Criminal law power is different from those other heads. R v Zelenksy Court upheld
provision requiring convicted person to pay compensation to victim. What made it
“civil”: (i) order made at victim's request (ii) amount of comp. related to actual
loss not blameworthiness (iii) order enforced by the victim like a civil judgmemnt,
not the state.
Court found “criminal characteristics” of law – compensation order made as part
of sentencing process, not a separate civil action – also, discretionary, but
awarding compensation should be restrained due to lack of civil procedures such
as discovery, and proper trial on issues of quatum of damages.

Laws are classified in accordance with their pith and substance. The corollary is
that a law which is valid under pith and substance test, may incidentally affect
matters which lie outside the ordinary powers of the enacting body.

So if criminal law puports to confer civil right of action (in addition to traditional
criminal sanctions), Court will ask: is there a rational, functional connection btw
the criminal elements and the challenged aspect. (Papp v Papp test). BUT : Court
very unlikely to uphold a separate civil right of action as ancillary to a criminal
law, given their position in Zelensky (that being part of sentencing was
justification for the law).

Criminal Law and Regulatory Authority

Can Parlt est a regulatory scheme and empower an ADM to exercise discretionary

In the 2 compet law cases in which admin agency was given prohibitory or
regulatory powers, the courts held that those powers could not be sustained as
criminal law.
Also insurance cases where PC struck down Federal statute attempting to regulate
the insurance industry through licensing. Then Fedl Parlt added section to Crim
Code making it an offence to carry on insurance w/o a licence from Minister of
Finance. PC found this to be a colourable attempt to do indirectly what Parlt
could not do directly: since the pith and substance of the law was the
establishment of licensing authority in the Min of Finance.

To be a “criminal law” must meet substance and form requirement (namely,

prohib + penalty):
Film censorship: NS Board of Censors v McNeil – SCC upheld provl censorship
laws as not being criminal, and falling within either : regulation of an industry w/in
the province (s92(13) – property and civil rights) or a local or private matter
(s92(16)). Although the law dealt with the suppression of ideas that are contrary
to public morality (a “typically criminal purpose”), the censorhip laws did not have
the standard “Prohibition + penalty” format. (There was a prohib and penalty on
the sale/exhibition of uncensored material, but that only enforced recourse to the
adminstrative process which was established to impose a prior restraint on
material deemed to be offensive.)

Abortion: prohibition coupled with dispensation (granting of approval by

therapeutic abortion committee). The Court in Morgentaler v The Queen (1975)
stated that “Parliament was the judge of what is criminal law and what isntand ay
hence introduce dispensations or exemptions in its criminal legislation”.
But according to Hogg that view is too broad and should be qualified by
“colourability”: the more elaborate a regulatory scheme is, the more likely that a
dispensation or exemption will be classified as “regulatory” and not criminal.

So can Parlt add dispensations/ exemptions to the Code? : yes Parliament may
decide somthng is criminal – and create a reqt for approval to do that thing – BUT
the more elaborate a scheme they create for that dispensation, the more likely it
will be found by the court to be “regulatory” and therefore, open to being
colurable as an attempt to do indirectly what Parliament cannot do

So if the scheme is too elaborate – have to consider whether characterizing the

law under another head of power can save it or not. (since it may not be
cosidered “simply” a criminal law – which is usu just a prohibition and a penalty)

Lotteries: R v Furney – attack on code provisionswhich prohibited lotteries unless

licensed by Lieut Gov of a province. SCC upheld the provisions as criminal law,
eve if power to regulate delegated to provl L-G, bc decriminalisation of properly
licensed lotteries was not colourable.

CEPA – Can Enviro Protec Act: Fedl law that regulates toxic substances. Min of
Health and Enviro examines substs and decides whether to classify as toxic. If so
the Gov in Council will have auth over manuf and handling of that subst. Breach of
regulation or interim order (issued becase subst not yet classified, but maybe
dangerous) – is punishable by fine or imprisonment.

R v Hydro-Quebec: prosec for emittimg more than one gram PCBs per day.
Dissenting opinion: the law was not criminal because the Executive had complete
discretion to define the crime before it became prohibited. Majority: prohibitory
enough on basis that admin procedure to determine toxicity culminated in
creation of prohibition and penalty.
Also, it was ok that the law provided an exemption for provinces which already
had euivalent provincial laws, since that only recognized the reality that
environmental protection is pretty much concurrent btw the provs and feds.

In conclusion, modern trend is to allow for complex regulation under the criminal
law power, including discretionary administrative authority. Recall (RJR-
MacDonald) criminal purpose may be pursued by indirect means.

Can provinces enact penal laws?

92(15): provl legisl can impose fines, penalty or imprisonment to enforce

otherwise valid prol laws. = ancillary power (needed for provl laws to be

BUT keep in mind the difference btw the above and a provl law which in its pith
and substance is criminal and therefore invalid.

Courts have more often than not upheld provl penal laws. Bedard v Dawson: provl
law authorized closing of “disorderly houses” defined with reference to the code
--> that law seemed to merely supplement the Code, but was upheld as in
relation to use of property. Also worth noting it was aimed at suppressing
conditions likely to cause crime rather than punishment of crime.

PEI v Egan – provl law autom susp drivers licence of anyone convicted of impaired
driving under the Code, upheld by SCC as in relation to highway traffic regulation
and so w/in prov competence.

Note: that existence of similar fedl laws did not render provl laws inoperative
under paramountcy doctrine.

Municipal By-laws addressed to prevent breach of the peace and public

disturbance by prohibiting gatherings in public places also upheld: A-G Can and
Dupond v Montreal.

Westendorp v The Queen : Court unanimously struck down municipal by-law that
prohibited persons from standing on the street and from approaching another
person for the purpose of prostitution. Prior case law would have suggested the b-
law would be upheld, as valid regulation of the streets. Purpose of the law was to
protect users of the streets from prostitution activities. The law strictly targeted
activities on the streets. But the Court found there was no question that the by-
law was an attempt to control or punish prostitution.
In conclusion : provincial power to create offences under 92(15) is not as broad as
the federal power to create offences under 91(27).

Westendorp tells us that if the provincial offence must be safely anchored in

propert and civil rights (92(13)) or some other head of provl power; or else it will
be invalid.

Chatterjee v Ontario: Court upheld provl law for forfeiture of proceeds relating to
crime – no charge needs to be laid and burden of proof on Crown is merey on
balance of probabilities. Since the forfeiture measure was “independent of the
sentencing process” it was “squarely w/in provl competence (its pith and
substance being in relation to property). Result in this case : Crown kept $29,000
seized from Chatterjee's car, which “smelt like marijuana”, even though no
marijuana found in car, basically because court not satisfied with his expl as to
how he got the money.

Sometimes a dispute that is between Private parties (ie no govt actor to

make Charter apply) the Court will reform the common law that does apply
in order to confomr it to Charter principles – i.e. Charter can still have a
bearing on the case – eg. Pepsi Cola case p 43-28 : especially where common
law is unclear.


Charter Origins – 1981 agreement by 9 of 10 provinces, Que disenting.

Enactment of Const Act 1982, Part I of which is the Charter.
Charter Key Characteristics
-can only be altered by Costitutional Amendment
-expressly overrides inconsistent statutes - s. 52(1) “Supremacy Clause”
-applies to both Fed and Prov levels of govt
-no protection of property
-no reference to “due process of law”

protects civil liberties from state action : most jursidictions reviewed prior
legisl to fix perceived violations (Que, out of protest, did not do so).
-Min of Justice (Fedl Govt) must continually assess and report on proposed stats &
regs for Charter violations
-also done in the provinces, less formally
− not completely voluntary – courts can sanction by nullying a law (govt act) if
challenged, and found to violate one of the civil liberties guaranteed by the

Charter is NOT the main safeguard of civil liberties in Canada: those are the
democratic character of Cdn politics, independence of the judiciary, and legal
trad. of respect for civil liberties. --> without one of these things the Charter
would be ineffective.

Because of the Charter – uniform standards for protection of civil liberties are in
place across the nation, and penetrate areas, formerly, of exclusive Provincial

It is assumed that on issues of HR it is appropriate to have a single national

policy. - adds a dimension of allegiance to Canada as a whole.

Charter Expansion of Judicial Review

-used to be (pre-1982) that courts exercised judicial rev on Const grounds

primarily for division of powers issues (ie Federalism grounds)
-now new 2nd dimension incl (post 1982) Charter grounds – calling for much more
policy driven decisions, eg. where one set of rights conflicts with another

Vagueness – Charter rights are vague (“thought, belief, asssociation, security of

the person, fundamental justice,” etc)

Judicial Restraint : deference to decisions by govt, so that political decisions

invalidated only in clear cases of Charter violations.

Judicial Activism : leaning toward expansion of civiil liberties, so that political

decisions are frequently invalidated

s.7 protection of liberty
s2 freedom of religion; freedom of speech
s.11 rights of criminal defendants
s.12 cruel and unusual punishment
s.15 equality

The Charter Revolution : period since '82 where the SCC has been very active
in using the Charter to strike down criminal and abortion laws and confer rights on
criminal defendants.

note : political impact of judicial review often exaggerated - legislative objectives

are rarely defeated on Charter grounds. - bc ss 1 and 33 can be used to replace
the law that is struck down and fulfill that objective anyway.

s 1 – authorizes the courts to balance the guaranteed rightds against competing

societal values. - but its very vague, little guidance provided.

Judicial review on Charter grounds --> 2 stage process :

1. does the challenged law derogate from a Charter right? If yes, then
2. should the law be upheld anyway, because an approp compromise was
made by the govt btw a civil liberty and competing social or economic

note: Federalism grounds take priority over Charter grounds

What is the Characrterization of the law?
-Examine the Purpose or Effect of the law
What is the Meaning of the asserted right?
-interpret the language of the Charter to determine whether the right has
been abridged by the law

If purpose of law is to abridge a Charter right than the law is unconstitutional
(unless saved by s1) (R v Big M Drugmart)
If the effect of the law is to abridge a Charter right than the law is
unconstitutional, even if the purpose is constitutionally valid. (This was the case in
R v Edwards Boos and Art – the purpose was innocent – a uniform day of rest – but
the effect was to impose a burden on those whose religion required rest on a
different day. - the law in this case was upheld by virtue of s1 and its benign
purpose) <-- this is usually the case (rarely if ever does Parlt enact laws that have
an invalid purpose, its usu the effect, that has to be demonstrably justifiable in
a free and democratic society, ie to be saved by s1).

Stage 2
s 33 – override power for ss 2(expression), and 7-14(legal rights) and
Exercised by enacting a notwithstanding clause – by express declaration that
the law is to operate notwithstanding the relevant provision of the Charter.

s 33 does NOT apply to: ss3-5 (democratic rights), s 6(mobility), ss16-

23(language rights) and 28 (sexual equality). These provisions cannot be

Result of unconstitutionality – Big M Drugmart was the only case where the entire
statute was struk down. Instead the courts usually do one of the following:

1. Severence of the infected provisions.

2. Reading down – choosing an available interpretation that does not violate
the Charter

Note: legislators given the last word in that they can re-enact any law that courts
strike down with a notwithstanding clause (where applicable).


Progressive Interpretation:
-const difficult to amend } this calls for a flexible
-expressed in broad terms to adopt to wide range of facts } so it can adapt to

the “living tree capable of growth and expansion within its natural limits” (Lord
Sankey in Edwards v A-G Can)

Generous Interpretation:
Living tree metaphor means that provisions of the Const should be given a “large
and liberal” interpretation. - Edwards (where women to be regarded as “persons”
and eligible for appoint to Senate)
note : large interpret of division of powers – result is wider powers conferred on
govt (ie callls Judicial Restraint because the tendency will be to uphold
challenged legislation);
while large interpret of Charter – means restricting powers of govt (ie calls for
Judicial Activism, because it leads to invalidation of more laws than a narrow

Hogg's Theory of Erosion of the Oakes test: While the stadard of interpreting
Charter rights is the broad and liberal approach – the standard of applying s1
(justification) is a high and stringent one. These approaches are inconsistent. If
scope of guaranteed rights wide – bound to protect rights not worthy of const'l
protec, and when faced with legisl that attempts to regulate conduct which is
guaranteed by artificially wide definition of the Charter right, the courts will want
to uphold the legisl. They can only do that if s1 can be satisfied. Ie, s1 will have to
be broadened as well.
Eg. soliciting for prostitution = protected by the Constn, but the CrimCode offence
was upheld under s1 – despite a weak case for s1 justification.
The solution (for Hogg) is to more narrowly interpret the Charter rights while
maintaining stringent stadard for justification under s1. That is because this
means less litigation and less review of legisl policy choices, and more meaningful
rules for Charter review. How the Court does this:

Purposive Interpretation:
-ascertain the purpose of each Charter right
-include acitvity that comes within the purpose and exclude activity that does not
-effect will normally be to narrow the scope of a right

Process-Based Theory of Judicial Review: judges do not take position on

controv substantive issues, instead,their concern is with the fairness of the
process by which govt bodies reach their decisions.
So instead of non-elected judges determining substantive values by which society
should be goverened – this is left to the power of elected officials – with judges
safeguarding a fair procedure by which those decisions can be made. Hogg
disagrees that the Court's role can be boiled dow to this: true that judges should
review process over substance BUT many aspects of the Charter Rights are
substantive and cannot be adressed within a process rubric.

s33 creates a Hierarchy of Rights:

-“Common rights” (Subject to override) and”Privileged rights” (cannot be
-At the top of the hierarchy is sexual equality (s28) (because also exempt from s1)
-also, Aboriginal and Treaty rights which are not subj to s33 or s1 since outside
the Charter
(but note: being outside the Charter also means the remedy for breach in s24
does not apply to those rights either)

Where rights conflict: s25 aborig treaty rights prevail over equality rights; s29
denomin school rights also prevail over equality rights
Courts approach has been to resolve conflicting rights through s1. The scope of
each right should be defined without regard to other rights. So the balancing act
is done case by case with reference to a partic law.
-One exception was O'Connor where there was no law at issue – just the
disclosure rights of an accused opposed to the privacy rights of the victim. The
court had to est common law principles for balancing these rights. In relation to
each other – privacy rights could be accomodated through “reasonable limits” on
the right to a full answer and defence.
= “Mutual modification” or “definnitonal balancing” (as oppose to “ad hoc
balancing” which is the preferred approach whenever possible).
Court's Charter decisions NOT a veto, but a DIALOUE - Court's decision to
strike down a law usu gets a legislative response. 66 cases where SCC did this –
legisl responded to 53 of them – in 7 the law was repealed in the other 46 of them
the law was replaced with new valid law. Sometimes using the court's suggestion
as to what would be a more acceptable infringement.

Second Look cases – R v Mills – Courts had previously addressed the issue of
disclosure to the accused in sexual assault cases (in O'Connor). Legisl had sice
enacted a stat regime for disclosure which really restictrd the defendants right to
disclosure (s7-full answer and defence) in favour of the complainants right to
privacy (s8) and confidentiality (s15-equality). ie, Parlt had not fully approved of
the decision and s1 could be used to justify the legisl as long as it was a
reasonable limit on s7. Instead of resorting to s 1, the SCC upheld the new
regime by showing the Legisl deference, on the basis of a “dialogue” btw Parlt
and the Courts. And although the new regime did not emphasize the def's rights
as much as the O'Connor decision, it had at least carefully considered it. The SCC
did not have the final word on the subject, it had merely stated what was
“preferable” and it was open to Parlt to come to a different conclusion. --> The
Law develops though a dialogue btw courts and legislatures. (per McLachlin and
Iacobucci at para 20, Mills).

While this means courts will usually show deference to second attempt at drafting
a law found to be unconsitutional, this will not always be the case...

cp R v Hall – second attempt at setting grounds for bail to an accused. Prior

decision of Morales had struc down a law allowing for denial of bail if “in public
interest. Too vague to satisfy s11e of the Charter – which req Just cause for denial
of bail.
New law auth denial of bail “...on any other just cause being shown...and where
nec to maintain confidence in the admin of justice.” The Court unanimously found
the firt part to be too vague – but 5 to 4 the law was upheld on the basis of the
second part (about maintianing confidence in the admin of justice). Iacobucci
dissenting found that this was not a case of dialogue but of “abdication”.

Sauve v Canada : review of 2nd attempt to disqualify prisoners from voting. Prior
decision had struck down prov of Can Elections Act disqualifying all prisoners from
voting in Fed elections, bc it infringed s3(right to vote) and not justif under s1.
2nd version ltd disqualif to prisoners serving 2 yrs+. SCC 5 to 4 struck it down as
not justif under s1 either. Gonthier J in the minority called for Parlt to be given the
last word. McLachlin held that the right to vote was “fundalmental to democracy”
and its restriction could not be shown deference, it had to be carefully examined.
She dismissed the parlt debates as angry criticism not real consideration. No
pressing and substantial objective was shown that would justif the limitation.

Canada v JTI-MacDonald - 2nd attempt to ban advertising of tobacco products. Prior

version struck down in RJR-MacDonald as breach of freedom of expression that
was too sweeping to satisfy the minimum impairment branch of justification
under s1.
This is an ex where the 2nd take legisl was drafted with careful attention to the
Court's reasons for that finding. Here, it was that information advertising and
brand-preference advertising should be exceptions to the ban; and the ban should
target “lifestyle advertising” and advertising directed and young people. (No
increased deference was req'd since the new law was crafted to address the
court's concerns).

Suspending a declaration of invalidity – occasionally done for 6 – 18 months to

allow corrective legislatiion to be enacted. Radical remedy because Court is
leaving an unconstitutional law in force.
“Emergency” rationale replaced with “dialogue” rationale-
Before: Shachter v Canada – used to limit suspension to circumstances where
immed striking down would:
1. pose a danger to the public 2. threaten the rule of law 3. result in deprivation
of benefits from deserving persons.

Now: “dialogue” rationale opens up the possibiility for suspension where the Court
thinks it is more approp for the legisl to remedy the law.
Corbiere v Canada – on-reserve residence reqt for voting in Indian Act band
elections held to be unconstitutional. The court suspended its decl for 18 mos. Per
Lheureux-Dube, the best solution would be one designed by Parliament after
dialogue with the Aboriginal people affected.The principle of democracy guided
the courts decision. It encourages remedies that allow the democratic process of
conusltation and dialogue to occur. (at para 116).

A-G is briefed by lawyers and reports to the PM or Premier on legality of

There are so many laws and so many opportunities for the legisl to impact Charter
rights – but it is very RARE for the court to strike down a law for this reason. Why?
Because every Cdn govt has a grop of Constitutional lawyers working under the
Attorney General to examine all legislative proposals and assess risk of successful
constitutional challenge to each one.

If risk is there, the lawyers work further with policy staff to meet govt objectives in
a more valid way.

No “political questions doctrine” in Canada. (ie that some cases are too politcal
and nonjusiciable) – no question is to political if it asked whether exec/legisl action
violated the Charter. The Court would have to answer regardless of how political-
Operation Dismantle v The Queen - US being allowed to test air launch missiles
over Can.
Re Canada Assistance Plan – 5% cap on growth of payments to the provs. The
issue raised was whether the Constn contained any prohibition against the
legislation --> made a purely political issue a legal issue.
Secession Reference – highly political issue of secession of whether Que could
secede. Court had to rule on how the Constitution would govern the secession of a

Cp to Bill of R, Charter has internal indications that it affords stronger protections:

 Limitation clause s.1
 Supremacy clause s.52(1)
 Remedy clause s.24
 Absence of “frozen concepts” language
 Stronger equality clause s.15

International Sources:
HR treaties – eg. Intl Covenant on Civil and Political Rights
-not incopr in Cdn domestic law – only binding at Intl law – not enforceable in Cdn
-but the Cov is useful for interpreting the Charter (rule that a statute should be
interpeted to conform with intl law as far as possible)
-where Charter and the Cov provide same right, the Cov may be used to indicate
the approp interpretation of the Charter language.
eg. 10(b) Charter – right to counsel --> not clear whether accused must pay for it
– Cov specifies accused does not pay if they cant afford to.
-persons who claim rights violations and have exhausted all domestic remedies
may petition the HRC of the UN.
-resulting decisions of the HRC become just as relevant to interp of the
Charter as the Covenant, since they elaborate the terms of intl obligations which
Canada has accepted.

Other sources:
-American Decl of the Rights and Duties of Man
-Euro Convention on HR
-non-treaty intl law, - eg. R v Hape: did the Charter search and seizure provision
apply to investigations of Cdn police in a foreign country? principles of customary
intl law incl “respect for the sovereignty of foreign states”. This meant that while
Parlt could make laws with extraterritorial effect, they could not enforce them
extraterratorially. s32 of the Charter was confined by the court to actions taken
by Cdn officials within Canada.

-legislative history – admissable as an aid to interpretation – incl debates in

Senate and HC, earlier versions of the Charter and testimony given when they
were reviewed.

Commencement of the Charter:

Charter took effect prospectively on April 17, 1982
-statutes, etc that were enacted before that date that are inconsistent with the
Charter are of no force or effect, but only as of Apr 17, 1982, onwards.
Mack v Canada – head tax on Chinese immigrants in force from 1885-1923.
s24 remedy not avail to actions taken prior to Apr 17, 1982.
What can be redressed is a status or condition that imposes a disadvantage which
persists after 1982 – even if the reason for the condition arose prior to 1982
(Bener v Canada).

Undeclared Rights: s 26
Cautionary provision - makes clear that the Charter does not take away any other
existing rights or freedoms.
-not given constitutional status , no remedy avail under s24 and can be altered or
abolished, as creatures of common law or statute, by legislative action.


Application of the Charter

Who is entitled to benefit? : Standing

“Everyone has the right...”s2(religion, expression, association),7(ife liberty and

security of the person),8(unreasonable search and seizure),9arbit
detainment/imprisonment),10(right to counsel, habeas corpus),12(cruel and
unusual punishment), and 17(use of Eng&Fr in debates and proceedings of Parlt)

“Any person...11(fair trial) and 19(Eng/Fr in proceedings)

Any member of the pubic... s20(Eng/Fr communication w/Parlt/Govt of Canada)

“Anyone...” s24(Remedy for infringement)

In Fr version - “chacun” for both Everyone and every person, so not much turns
on the variations and all prob apply to include corporations. EXCEPT:
freedom of religion – corp cannnot hold a “conscious belief”; s7 life liberty and
security; s9 arb detention; 10 arrest rights; 11(e)bail; 11(fc) testifying against
oneself - corps cannot testify; s13 self incrimination; and 14 right to interpreter
and s24 right to a remedy can only be used where a corporation invokes a right
that applies to corps.
Note: corps not barred from invoking the charter rights that do not apply to them
– eg. R v Big M Drugmart – right to freedom of religion could be invoked as
defence to a criminal charge of selling goods on Sunday. But that was because
the corp was pointing to a constitutional defect in the law, and because no one
can be convicted of an offence under an unconstitutional law. <-- so if you
can show defect – conviction fails. The corp raised s 2a of the Charter to say the
Act abridged the freedo of religion of individuals, and therefore had a const

So facing crim charges at least, corps may have standing to invoke rights that do
not apply to them to show infringed and resulting defect in law.

Foetus – not a legal personeither at common law or civil law. Must be completely
separated alive from mother. No Charter rights are avail to a foetus.

s32 – requires action by a Cdn legislative body or govt for the Charter to apply.
Thus imposes connection with Canada – otherwise not nec to have a connection
with Canada to benefit from Charter rights.

Singh - anyone who entered Canada however illegally instantly entitled to assert
s7 rights, which apply to “everyone”. In that case this meant anyone who entered
Canada and made a refugee claim was entitled to a hearing before a person with
authority to decide the issue.

R V Cook- SCC Ammrican citizen arrested and detained in US successfully

challenged admissability of statement made to Cdn Police in US in violation of
right to counsel. But NOTE: R v Hape (more recently) confined the application of
the Charter to actions taken by Cdn actors inside the boundaries of Can., so that
Charter protec against search and seizure did not apply in Turks and Caicos.

s.15(equality) - “every individual has the right” - prob excludes a corporation

Lower courts have held that s15 does not apply to corps but SCC has avoided
answering this
Recall: that even if not covered by s15 themselves, corporations can invoke s15
when facing criminal charges laid under a law that is invalid for unconstiutional

“individual” does not include foetus or estate of deceased person (s15 rights die
with the inidividual)

Every “citizen” has the right to...s3(vote); s6(mobility) and s23(minority language
The term citizen is defined by Parlt and subj to change by legislation, but the
courtsw would have to ake sure any such change is legitim related to the
statutory objective and not done to limit Charter rights. Not applicale to
s6 mobility rights also avail to “permanent residents” - defined by Immigration Act
(cannot incl corps)

Burden of Rights : Bound by the Charter

s32(1) prov Charter binds both levels of govt (legislature and executive)
NB Broadcasting case – Legislative assembly bound by the Charter (even if not full
Legislature acting independently of the Lieut-Gov) however parliamentary
privilege made the assembly imune and allowed them to “exclude strangers”, incl
media, from deliberations because “one part of the Constitution cannot be
abrogated or diminished by another”.
--> Hogg's criticism:
-not enough basis for adding parlt privilege to definition of Constitution
-anyway, the fact that a power is conferred by the Consitution does not
immunize the power from the Charter
-that was the whole point of having the Charter – to diminsh powers held by the
legisl/exec branches of govt
-therefore if the assembly is going to create a rule that derrogates from a Charter
right it will have to be justified under s1. (and note the judges would have upheld
restrictions on use of television cameras under s1)

When is legislative silence subject to Charter review?

Vriend v Alberta – V dismissed bc of homosexuality – challenged Alberta HR stat
for failing to prohibit discrim in employment bc of sexual orientation. SCC held
that since Alberta had gone so far as to prohib discr on virtually all other grounds,
it was denying the same rights to homosexuals, = denial of equal benefit under
the law. If Alta had not enacted anti discrim statute or one limited to discrim on
basis of age, then challenge would have failed, no positive duty to act BUT if
the legisl enacts such comprehensive legisl than it has opened itself up to
anobligation to include everyone who is guaranteed protection under s15.

When is legislative exclusion subject to Charter review?

Dunmore v Ontario – agricultural workers excl from Ont labour relations statute.
Although agri workers still free to organize at common law, and were in no
different situation than if there were no legislation, the SCC held that the
minimum state action required to invoke th Charter was done by enactment of the
labour relations statute – and so a positive duty arose
to extend the protections of labour relations laws to those who could not
otherwise organize successfully. Excluding Agri workers= breach of s2(d)
(freedom of association) and the courts severed the exclusionary provision.

Statutory authority

-since Parlt and legislatures cannot enact laws contrary to Charter rights – as a
result Gov in Council, Ministers, officials, municiplities, administrative tribuonals
and police officers and any body exercising statutory authority is also bound
by the Charter (similarly Federalism- ss91&92- restrict those bodies as well).

-cp. a private corporation which does not have the power of compulsion that a
statutory “authority” has. Private corp has the same proprietary and contractual
rights as a nat. person -does not possess the coercive power of governance which
attracts Charter constraints:
-that is why the SCC ruled that mandatory retirement policies of a university and
hospital not subj to Charter review-
-even though both created and empowered by statute, those bodies not
possessed of powers any larger than those of a natural person

-Charter will apply to delegates of power of compulsion:

-municip by-law re postering: Ramsden v Peterborough (all municip powers
subj to Charter: Godbout)
-arbitrator awarding remmedy for unjust dismissal: Slaight v Davidson (but
note: if arb's auth had come by way of parties' consent, no statutory power of
compulsion, and the Charter would not apply)
-rules of an organization binding on members by virtue of their consent – not
subj to Charter
-Law Society Alta Rules held subject to Charter where entry of out of prov law
firms restricted, through exercise of stat auth. (Black v LS of A)
-Charter applies to auto insurance policy excluding common law spouses from
spousal benefits – both insurer and insured were private parties but the terms of
the policy were stipulated by statute (Miron v Trudel)
-private person making citizen's arrest under stat auth is subject to the
Charter (R v Lerke, not followed in R v Skeir) (athough somewhat unreasonable to
expect a citizen to read someone their rights, although a security guard might be
reuired to have that training)

Inside Govt : Charter applies to fed and prov govt – including all persons or bodies
they control even if they are not exercising stat auth at the time
Outside the Govt: Charter only applies to persons or bodies exercising statutory

Not always the Court's position => Eldridge – where Charter applied despite
absence of power of compulsion; and Bhindi and Levigne – where the did not
apply despite the presence of a power of compulsion.

Eldridge v BC (A-G) [1997] 3 SCR 624 paras 19-52

Greater Vancouver Transport v Canadian Federation of Students 2009 SCC 31

paras 13-24

Stoffman v Vancouver Gen Hospital – doctors req to give up admitting privieges

when they reached 65 yrs of age. Charter not applicable because hospital,
although performing pubic service, did not exercise any powers of compulsion
providing medical services and was not controlled by govt.
Eldridge – was a hospital bound by the Charter?
-Hospital's failure to provide sign language for deaf persons seeking medical attn.
would breach s 15 if Charter applicable. Per Stoffman hospitals not bound by
Charter – but in this case unanim Court found that BC's Hospital Services Act
funded hospitals, and held they were implementing a specific govvt policy or
program. Stoffman stood for the proposition that the Charter did not apply to
the day-to-day operations of hospitals.
Hogg criticism: this decision should have followed Stoffman, which was
inconsistent with Eldridge.

Re Bhindi – whether “closed shop” provision in collective agreement violated the

guarantee of freedom of association in the Charter – closed shop = employer
agrees to hire only union members. BCCA held collective agrmt private and
Charter did not apply.
Hogg's criticism: the provision was facilitated by statutory authority – coll agrmt
not somehting that could have been done through contract law alone. In all
jursidictions colective agreements made binding on all employees by statute
whether they agree with all the terms and conditions or not. And so terms and
conditions of a coll agrmt should be subj to the Charter.

Lavigne v OPSEU – SCC considered whether “agency shop” proivision in collective

agreement violated freedom of expression and association – agency shop = the
employees do not have to join the union but all must pay dues to the union. In this
case the Charter applied because the employer was an agent of the provincial
govt. But if not for that connection, there would be no Charter application. Even
though compulsory dues authorized by statute, Charter not invoked. Charter
should not become applicable by virtue of permissive statutory authority which
grants power no greater than that which a natural person would nonetheless
Hogg's Criticism: True, but w/o stat auth an obligation to pay union dues would
be contingent on the employees agreement. The employee was being subjected
to statutory power of compulsion just as if the statute were directing him to
pay union dues.

Charter application to Amending procedures: Charter does not apply to

ss38, 41, 43 which require concurrence of several legislative houses. But does
apply to ss44 and 45 where Parlt/Prov can act alone to amend the Constitution.

Govt action under prerogative or common law powers is also subject to the
Eg. entering into contracts and issuing passports.
-Operation dismantle v The Queen – cabinet decisions taken under prerog to allow
US to test cruise missiles over Canada.
-Douglas College – Crown agent making contract of employment (agency based
on substantial degree of govt control*)
-also incl: Crown corporations or public agencies outside formal govt
depts, may be deemed “agents” of the Crown, bc of a substantial degree of
ministerial control*.

*Control test: institutional / structural link w/ govt to determine whether public

body is covered by the Charter.

University or hospital performing a “public service” = not relevant, as long as

performed independently of govt.
Public body performing a “private” function = not relevant, if doing so under
control of govt.
Important factor = the existence of control.

Note: if body is acting on statutory authority then no need to look at control test.
Charter will apply whether “governmental body” or not.

Courts – Dolphin Delivery: injunction sought against secondary picketing.

Injunction granted on basis of tort of breach of contract. Union challenged the
injunction as contra Charter guratee of expression – SCC rejected the challenge –
Charter does not apply to a court order, which is not a “governmental” action.
R v Rahey: whether Crim court denied Def s11(b) right to be tried within a
reasonable time. matter was adjourned by trial judge 19 times and too 11 months
for decision which ended up being a denial of the def's application for an acuittal.
SCC ordered stay of proceedings declaring this was a breach of s11(b).
Rahey approach, namely that the courts as custodians of the principles enshrined
in the Charter must also be subject to it, was affirmed in:
BCGEU : Injunction against employees picketing outside court house – challenged
on Charter grounds. The SCC performed a s1 analysis upholding the injunction,
importantly unanim court held that court order was subject to Charter review. But
this case was distinguished from Dolphin Deleivery in that here the Chief Justice of
BC, had issued the injunction on his own accord without notice to the union.
Therefore this was not a “private dispute”, but of the court acting on its own
motion with entirey public not private motivations.

When the Charter will not apply to a Court order:
--> when issued as a resolution btw private parties and
--> court order based upon common law
-no govt involved and no statute applies

When the Charter will apply to a Court order:

--> when issued on Court's own motion for a public purpose or
--> govt is party to the proceedings or
--> in purely private proceedings that are governed by statute law
Common Law not subject to Charter
-as a result need to determine the source of any law that comes under Charter
-but the exercise of common law powers by governement actors may come
under Charter Review, eg.:
- when police officer searches an accused person as an incident of an arrest
- when Crown adduces evidence of accused's insanity, causing accused to be
acuitted but held in custody
- when Crown acts under prerog power
- when Crown acts under general common law power entering contract that req
mandatory retirement or mandatory payment of dues

Charter's indirect effect on the Common Law: “the judiciary ought to apply and
develop the principles of the common law in a manner consistent with the
fundamental values enshrined in the this sense the Charter is far
from irrelevant to private litigants whose disputes fall to be decided at common
law.” (Dolphin Delivery, per McIntyre J)

Pepsi-Cola v RWDSU : SCC held that picketing could only be enjoined if it involved
comission of a wrongful act. (therefore need to show intimidation or breach of
contract, etc to uphold injunction).

Dagenais v CBC : publication ban (ie injunction) against braodcasting tv program

that might influence juries in a series of criminal trials (Christian brothers charged
with abuse). This was a dispute btw private parties, governed by Common law.
SCC reformulated the common law rule re publication bans and struck down the
ban under appeal.

Hill v Church of Scientology : Crown employed by govt of Ontario brought action

for defamation against Church of Scientology and its lawyer, who had flasely
accused him of violating a court order. Defs argued that Charter applied because
prosecutor employed agent of Crown, statement s related to official duties, and
action funded by the Crown. SCC disagreed: still not = “governmental action”
because in this case the plaintiff was a private party and his action was not
brought as part of his official duties, but to vindicate his personal reputation.
Therefore Common Law governed and Charter did not apply.
However *** and this is what you have to watch out for *** although Charter did
not apply it was still necessary to determine whether the common law was
consistent with Charter values, and to modify it if necessary.

Unlike s1 analysis – more flexible approach and Charter claimant bears the onus
of showing both the inconsistency and the need for modification.

Here the common law of defamation was found to comply with Charter in this
case, balancing the personal reputation of plaintiffs and the freedom of
expression of defendants.

Charter applies directly to statutes therefore no need to look at Charter values...

Note: Charter values relevant to stat interpretation ONLY where statute is
ambiguous AND ref to Charter value woud help resolve the ambiguity.
Private action = not regulated by the Charter
Eg. employer restricting employees freedom of speech or assembly
-parent restricting mobility of a child
-landlord discriminating on basis of race in selection of tenants
These are not breaches of the Charter because no govt / legisl action involved
Remedy will have to be sought in a Human Rights Code, or under labour, family,
tort , contract or property law.

R v Buhay: security guards smelled marij coming from a locker at bus depot. Had
manager open the locker and discovered drugs – informed police who were
present when locer opened 2nd time. - SCC: held 1st time locker opened = not a
“search” under s8 of the Charter because security guards = private actors. (subj
to “loose framework of statutory regulation” but not “subject to govt
control”). they acted totally independently of the police. However, 2nd opening
was different = state action because police took over. Police acted without a
warrant and so the search and seizure was unreasonable under s8.

If Parlt chooses to give citizens powers of arrest => such arrests will be subject to
If Parlt chooses to criminalize abortion => statute will be subj to Charter
If Legisl chooses to prohibit employers from discrim on basis of race, sex, religion,
national origin, etc, it will have to conform with the Charter and include a
prohibition on discrim against sexual orientation.
If Legisl chooses to prohibit discrim by sex => statute will be subject to Charter –
Courts will in into constitutionality of exemption for boys only sports teams. (Re
If govt chooses to contract with its employees for mandatory retirement =>
contractual provision to which govt is a party will be subject to Charter
If police enlist the aid of a private individual to obtain infor from a prisoner, or
obtain medical records => private informers become agents of the police and
their actions must be constitutional

So may involve “private” matter / private persons BUT -> presence of govt or
existence of a statute will make the Charter applicable

Remedy of “extension” :
Court extends the reach of a statute founnd to be “under-inclusive” (ie excl
some group that has a constitutional right to be included)
- sometimes accomplished by “severence” (delete clause that excludes the
- sometimes by “reading in” (add more inclusive language to the statute)
- (eg. Vriend; Dunmore, above)

no need to extend the Charter's boundaries beyond govt action bc govts can and
often do regulate private matters, such as employment standards, and family
relationships. If there is oppression then the democratic process is there to
redress it. Not sure we would want Constitutional norms to invade our most
private realms. While there may be an argument for Charter protection of private
action where there is inadequate legislative redress, but that would lead to over-
intrusion of private affairs.

Extrateritorial Application
-Foreign govts not bound by Charter – confined by s32 to Canada
-Accd person in Canada cannot object to stmt given to American police officers
who failed to comply with the standards of the Charter
2 stage process:
1. hearing to determine whether sufficient evidence to support conviction of
extrditable offence in the foreign state.
2. if the finding is positive, Minister of Justice decides whether to surrender the
at this stage extradition of Cdn citizen is breach of s6, right to remain in
Canada, but extrad. is justifiable under s1.
while it would be a breach of the principles of fundamental justice under s7 if a
fugitive were extradited to a country where he or she may be treated so as to
“shock the conscience” -
SCC reluctant to interfere with extradiction orders – doesnt want Canada to
become a safe haven for criminals
Treaty with US stipulates that Canada can refuse to extradite if no assurance can
be given that death penalty will not be imposed/exercised.

Kindler v Canada – jury in Penn recomm death penalty. Minister of Justice gave
him rigt back when he fled to Canada – w/o seeking any assurance re death
penalty. SCC held no breach of fund princip of just – majority concerned that if
extrad denied, no legal basis to keep Kindler in custody and Canada would
become a safe haven for crims.
US v Burns where minister again approved extradition w/o seeking assurances.
2 fugitives to be returned to Washington State where death penalty was an
They were Canadian citizens, 18 years old, when allegedly committed the
SCC held: extrad w/o assurances that death penalty will not be imposed would
breach fund princips of just. => Other than exceptional circumstances ,
“assurances in death penalty cases are always constitutionally required”

Suresh v Canada – breach of s 7 to deport someone who will possibly face torture?
Usually it would be a breach same as extradition –
SCC followed Burns decision but maintained entitlement to deport someone who
was truly dangerous.
Since they would be facing torture – SCC called for cogent evidence that they are
indeed dangerous.

What a person is entitled to when making a claim:

-full info of case for deportation
-opportunity to respond and
-be provided with reasons for final decision.

Suresh not given opportunity to substantiate his torture claim, and he was not a
danger to public safety, SCC set aside deportation order and asked Minister to

cp Ahani v Canada – court upheld deportation of Iranian citizen – Minister concl

minimal risk of torture in Iran and deportee=danger to the security of Canada.
Court affirmed Minister's decision.

Schreiber v Canada – did Charter apply to letter of request from Cdn Dept of
Justice to Swiss authorities requesting seizure of Swiss bank accounts for RCMP
criminal investigation. No warrant as would be required under s 8 if seizing bank
records in Canada. Swiss auth carried out request in compliance with Swiss law.
Charter challenge failed ->the lettre of request had no legal effect therefore not
subj to review. Dissent: process of seizure intitiated by Cdn actors and should
have complied with the Charter.

R v Cook – US citizen arrested in US for murder committed in Canada. 2 Cdn

officers interrogated him in New Orleans. Did not compy with Charter because of
inadequate warning of right to counsel.
Maj SCC: Charter did apply because interrog by Cdn actors – no interference with
American sovereignty to hold Cdn officers subj to Charter.
Dissent: officers had no auth to act in the US – interrog could only take place with
US cooperation, in compliance with American law unconstitutional extraterritorial
effect to impose Charter on proceedings in US.

Overruled in
R v Hape – Prosec in Can for money laudering. Docs searched and seized in Turks
and Caicos by Cdn police, acted under supervision of Sr. Turks Officer. Seizures
took place in compliance with Turks law, but one w/o warrant = breach of Charter
if applic. cp Cook, in this case requiring Turks to have a warrant system in place to
comply with Canada =interf w/
sovereignty, so Cook would not have required finding that Charter applied,
nonetheless Court overruled Cook to hold that : Charter only applies to Cdn actors
acting inside Canada.
“Extraterritorial enforcement of Cdn law not possible, and enforcement
necessary for Charter to apply, Charter cannot apply extraterritorially.”

However, if police action in foreign state produced evidence that would make trial
unfair in Canada, then that evidence should be excl under ss 7, and 11(d). In Hape
– not unfair because the evidence was taken in accordance with Turks law
which the defendant had made his affairs subject to.

Canada v Khadr – Cdn citizen captured in Afghan, by US forces and detained at

Gunatanamo Bay. Charged with murder and terrorist activities. He requested
disclosure of interview records held by CSIS that had been given to US authorities.
If proceedings were in Canada Stinchcombe right of full disclosure would apply.
For the Court Hape had suggested an exception of territorial effect where Canada
was in breach of international obligations.
Since the Gunatanamo Bay process was contrary to the Geneva covention to
which Canada was party. By handing records to US auth Canada part of the G.Bay
“process”. Interviews and records given to US auth not breaches of Charter, but
under Stinchcombe, it would be a breach not to disclose that material to Khadr.
Under s24(1) the remedy was disclosure of records held by Cdn govt.


Override Power – s.33

-Parlt / Legis can override ss2 and 7-15

– express declaration required as to which Charter provision(s) are being
overriden (s33),
- Acts made under that declaration will operate as they would 'but for' the Charter
-ie, free from any invalidating effect of that provision

-s33 was the cruial difference that secured consent of the provinces to enact the
Charter (they had been oppposed to the Charter on the ground that it limited their
-ie s 33 maintains degree of legislative sovereignty for the provinces

-Quebec has never assented to the 1982 Act (and its Charter).

-When Charter came into force April 17 1982 Que enacted Bill 62 – to add a
standard notwithstanding clause to each of the statutes then in force. And the
same was done for every new Act, until Dec 2 1985 – when new (Liberal) Govt
elected w/ policy to reach Constitutional accomodation with Canada. The blanket
Act was allowed to lapse in 1987 (end of its 5 year life).

-s33 was used by them 12 times and only one occasion was contraversial –in
response to Ford v Quebec: Bill C-178 “An Act to ammend the Charrter of the
French Language” - prohibited the use of English in outside commercial signs.
-used s 33 to override freedom of expression – which had invalidated the first
version in Ford.
-very unpopular outdside Que and contri to failure of Meech Lake Accord.
-after its 5 year life Que lifted the ban and instead required that French be

-outside Que power of override has been used just 3 times.

1, Yuon but Act never brought into force.
2, Saskatchewan used it in a bac to work law after sim legsil was struck down for
infringing freedom of association (2(d)). but in the mean time that finding was
being appealed to the SCC who then upheld the original law agreeing it was not
an infringement, so enacting the new override version proved unnecessary.
3, Alberta used s33 to protect a law against same sex marriage.

Never been used by 7 of the 10 provinces or by federal Parliament

Rights that can be overriden – limited to : fundamental freedoms (s2); legal rights
(ss7-14) and equality rights (s15).

-express s33 declaration will expire after 5 years (33(3)) and can be re-enacted
(33(4) but that too will expire in 5 yrs (33(5)). Purpose : force reconsideration by
each newly elected govt.

1-override cannot be inferred/implied, s33(1) = “manner and form” requirement.

2-must be found in the statute itself – or by amendment to previous statute – In
Ford v Quebec, the Court did uphold Que's blanket clause as stating the override
applied to “each of the Acts adopted by the National Assembly before 17 April
3-the express declaration must be specific as to which Charter provisions it
overrides. (In Ford this was satisfied by the blanet Act specifying it applied to ss2
and 7 to 15, ie all of them.)

Retroactive effect
-the Que blanet Act - Bill 62's attempt to mae the declaration retroactive.
-court held normal presumption against retrospectivity should be applied to s 33
and so rights can only be derrogated prospectively.
(*potential problem with this is that it might encourage enactment of override
clauses as a precaution since they cannot be relied upon to retrospectively
reverse a decision by the Court to strike down a statute =cautionary use of s33
--> attracts less opposition and public attention then when done to reverse a
court ruling.)

Summary: Grounds for judicial review of s33 declaration:

-not confined to rights specified in s33
-not specific to statute that is exempted
-cannot retroactively apply to rights overridden (ie before you derrogate from a
Charter right you must make the s33 declaration – it can be applied to previously
enacted statutes, but only as to their prospective use)

s1 analysis: does not apply to s33 because a s33 declaration means the Act
operates as though there were no such Charter provision.
-the grounds are of form only – not open to substantive review (Ford case).
Reluctance to use s33: principled commitment to the Charter – political
oppposition that might be expected – also from press, organized bar and civil
liberties groups – alerting function of notwithstandig clause, alerts critics of
expected inconsistency with Charter, causes public debate
-likely it is only going to be used rarely, in instances where strong public policy
reasons for it.

Rights in Charter difficult to abridge and in much better position than rights not in
the Charter.
− because of s33 override powers, the legislative branch can have the final word
on whether a statute will be allowed to abridge rights. If judges were to have
the last word on socio-political issues – there is no gurantee that they will
always be decided more fairly than if the last word rests w/people's elected
-note: powers of override are also found in the Bill of Rights, s2; and the Provincial
bills of rights for Sask, s.44; Alta, s.2; and Que, s.52

-s33 helps avoid longstanding conflicts btw the judicial and legislative branches


Limitation of Rights

s.1 analysis : 2 stages

stage 1 – does the challenged law have the effect of limiting a guaranteed right?
If yes...
stage 2 – is the limit a reasonable one that can be demonstrably justified in a free
and democratic society?

-process reflects intnl human rights laws, and european case law before the
ECourt of HR and the UN HRC starting to be used by Cdn courts
-but cp American sys where courts have to imply limitations
-s.1 imposes stringent reqts on justification

R v Oakes : Dickson CJ wrote unanimous opinion for the court on the difficult issue
of the court being in a position to justify limitations on such sacrosanct rights.
-”free and democratic society” set the standard for justification – only
the values of such a society could limit the Charter rights (since that is the
society that created them)
Hoggs opinion : each right should not be interp to reach behaviour outside the
purpose of the right. this compliments the Court's decision to make the standard
for justification a high one. (if rights iterpreted broadly, then justification will be
needed much more often and that high standard will inevitably erode to a more
relaxed stadard. Furthernore, a broad, instead of purposive approach, to defining
rights will lead to more chalenges and more interference by the courts in govt

Stage 1:
Task: Interpret and apply Charter provisions which define guaranteed rights
Burden of Proof: Person asserting a breach must prove it. Including rights
qualified, eg “unreasonable search or seizure” - the qualofication has to be proven
by person asserting breach, eg unreasonableness of search. - Civil standard - ie.
proof by preponderance of probability.

Stage 2:
Task: Interpret and apply s1
Burden of Proof (or Persuasion): Government/Party seeking to support the law.
That law is a “reasonable limit”and that it “can be demonstr justif in f + d soc”. -
Civil standard – but applied rigorously and court will usually need to see
-”Presumption of Constitutionality” (that applies w/ Federalism challenge, see
above pt. 3) does not apply in Charter cases – except for the practice of
“Reading down” a statute to the interpretation that would not offend the
Charter, whenever possible.
There will not be a presumption that the law is justified under s1.

Quebec School Board Case - Not every Charter infringement is a “limit” - any
infringement that is more severe that a limit cannot be justified under
Bill 101 – admission to English lang schools required parents to have been
educated in English, in Quebec. - Contrav s23(1)(b) Charter – guarantee for
persons educated in the minority lang anywhere in Canada.
Court refused to engage in s1 analysis – s23 provided detailed definitions of the
classes of persons entitled to protection – went to the heart of the section – Que's
attempt to redifine the classes was not a “limit” contemplated by s1, but a direct
collision with s 23.
“Limits” can be justified – but [truly complete] “denials” cannot be.

“Prescribed by law”
-an Act that is not legally authorized can never be justified under s1.
-becomes irrelevant that the Act is reasonable and demonstrably justified
-eg. Little Sisters Book and Art Emporium
Charter violation on initiative of police officer acting without clear legal authority
is outside the protection of s1. (“Prescribed by law” – requires a mandate for
specific action – not merely permission to do something that is not prohibited.)
In that case ccustoms officials discrim against homosexual literature in
administering thestat pohibition against importation of obscene materials. -->
breach of equality rights under s15 AND could NOT be justified under s1 because
the legislation did not authorize distinguishing btw homo- and hetero- sexual lit,
the customs officials' actions were not prescribed by law.

(So if it is not the law that has the effect of infringing rights, but a
misuse/missapplication of the law that has the effect then it wont be subject to s1
analysis. Note does not have to expressly infringe a right, can be a result of what
the law requires or the result of a failure of the law to provide for the right, as in R
v Thomsen, below re roadside breath tests)

Prescribed by law then requires:

1. the law is adequately accessible to the public and
2. it is formulated with sufficient precision to:
a) enable people to regulate their conduct by it and
b) provide guidance to those who apply it

-Common law notions such as “contempt” satisfy this test (Sunday Times case, R
v Therens)
as are : delegated legislation, incl: regulations, by-laws, regulatory body rules,
and prerogative orders governing issue of passports.

-Greater Vancouver Transport v CFS : govt legislative policies may come within
the definition, but must be precise and accessible – policies of trasnit auth to
restrict ads on buses = limit on freedom of expression prescribed by law.
because they were binding rules of general application. set out clearly in writing
and made avail to those who wished to advertise on buses.
Note: distinction btw legislative policies and administrative policies
Admin policies (intended for internal use by govt agencies to interpret
regulatory power) which are informal and inaccessible outside govt not
“law” for purpose of s1.

The law need not expressly limit the right:

R v Thomsen – roadside breath test to be admisnistered “forthwith” precluded
contact with counsel = “limit on right to counsel prescribed by law” even though
statute silent on right to counsel.


Per Lamer CJ : 2 types of statutory conferral of discretion:

1. statute that expressly or by necessary implication authorizes a decision that
would limit a Charter right. (Ontario Film, Husky and Ladoucer)
1. Statute itself, not the decision, has to be justified under s1.
2. statute that is broad enough in language to encompass decisions infringing
a Charter right – but which does not expressly / by implication authorize
1. Such broad empowering language should be read down so as not
to authorize a decision that infringed the Charter.
2. Any decision that did infringe the Charter would then be ultra vires the
empowering statute.
3. In this case, s1 would have to be applied to the decision itself not
the statute – if decision justifiable then not infringed. (Slaight
1. Eldridge – striking down discretionary decision by statutory
commissions annd hospitals to deny sign-language interp to deaf
people using medical serices.
2. Multani – striking down decision not to grant prohibition to Sikh
student from rule prohibiting weapons in schools.
So step 1 would be to try s1 then if s1 could not uphold the decision you read
down the statute so as to exclude that type of decision, by making it ultra vires.

If Board given unfettered discretion to develop its own criteria (eg. to ban or cut
films proposed for public exhibition, Re Ontario Film... Society) which would not be
binding on the Board, then that would not = “law” for s1 purposes. (In that case
then the limit on freedom of expression was not prescribed by law.)
R v Hufsky – SCC upheld provincial stat auth police unfettered discretion to stop
vehicles at random – organized program took place at partic location with several
police officers present. - Held that general discretion coferred by stat extended to
random stops and = limit on right against arb detention prescribed by law. Even
though officers given discretion who to stop.
cp R v Ladoucer – roving random stop at officer's own initiative and not part of
orgaized program. Hufsky was followed but by a narrow majority of 5 to 4, the
dissent held that s1 could not apply to law allowing any officer to stop anyone at
any time/place for any reason.

Slaight Communications v Davidson – adjudicator found that employer had

unjustly dismissed employee – ordered that emp'er prov letter of reference and
not to make comments that would reverse its effect.
SCC held both reqts were reasonable limits on employer's freedom of expression
--> adjudicator's orders were “prescribed by law” because made under statutory
Note: the statute merely provided the adjudicator could order comp., reinstatment
/ other equitable remedy. There was no explicit auth to require a written
letter or limit freedom of expr, the statutory discretion was held to imply
a limit on expression prescribed by law.

-principle of fundamental justice that statute is void for vagueness if its
prohibitions are not clearly defined.
Why vagueness offends Charter values
-vague laws are not sufficiently clear as to avoid arbitraty / discriminatory
For this reason “prescribed by law” under s1, also requires precision.

2 values protected by “prescribed by law”:

1. fair notice to citizens of what is prohibited. and
2. checks on discretion to enforce the “law”.

*Not a high standard

Irwin Toy Inc v Quebec – provincial statute prohibiting “commercial advertising

directed at persons under 13 years of age”. Even with the guidance of 3 factors to
determine what came within the prohibition, it remained highly uncertain. Issue:
was the law too vague to be a limit on freedom of expression that was prescribed
by law?
SCC held: not practicable to seek “absolute precision” in a statute. A law
fails the prescribed by law test (precision reqt) only where: “there is no
intelligble standard and the legislature has given a plenary discretion to
do whatever seems best in a wide set of circumstances”.
In this case the 3 factors provided an intelligible standard. Therefore not void for

Luscher v Min Rev Can – striking down prohib against “immoral or indecent”
books = too vague to be a “reasonable limit”.
Re Blainey – striking down exemption from HRC for sex-segregated sport because
“It prescribes no limits and provides no guidelines”.
Re ss 193 and 195.1 – prohibition on communicating for the purposes of
prostitution upheld.
Can. v Taylor – prohib on comunicating hatred or cotnempt towards minorities
Osborne Can – prohibition on poitical campaigning by civil servants upheld.
Court's formula was “whether the impugned law is so obscure as to be incapable
of interpretation using the ordinary tools”.
R v Butler – prohibition on sale of obcene materials upheld.
Can v JTI-MacDonald Corp. - prohibition on advertising “likely to create an
erroneous impression” of the health hazards of tobacco upheld.

Reasonable and Demonstrably Justified

-go hand in hand = single standard to be applied to all laws that infringe a Charter

Oakes test:
2 criteria for “reasonable and demonstrably justified”:
1. the objective which the measures are designed to serve are of “sufficient
importance to warrant overriding a constitutionally protected right or freedom” . *
High standard.
“Sufficient Importance”: minimum requirement = that the objective relates to
“concerns which are pressing and substantial in a free and democratic
2. the means of achieving that objective must also be reasonable and
demonstrably justified. “Proportionality Test”: (Varies w/ circumstances)
3 components =
1. Rational Connection: The measures adopted must be rationally
connected to the objective. They are carefully crafted to achive the
objective. Not arbitrary, unfair or based on irrational considerations.
2. Minimal Impairment: The means must also impair as little as possible
the right or freedom in question.
3. Proportionality: Between the effects of the measures adopted and the
objective identified.

Almost always comes down to the minimal impairment requirement.

1. Sufficiently Important Objective

-can be difficult to idenntify. Might look at legislative history – but may not be
-courts usu read the objective into the statute itself
-generality of statement of the objective will be a factor:
Andrews v Law Society of BC – at a high level of generaloity law could be exprssed
as to “restrict entry to the legal prof tp persons who are qualified to practice law.”
Then it would be sufficienlty important under s1.
or at a low level of generality: “to restrict enty to the legal profession to those
who are Cdn citizens.” Then the value of the “objective” becomes much less

If stated at a high level of may pass the “importance” reqt but will
run into difficulty at the “minimal impairment” or “least drastic means” stage. If
the objective is very wide – their will be room for many other ways of achieving it,
if narrow it will be easier to see why the particular means were chosen.

Hogg: The statement of the objective – being for the purpose of a s1 analysis –
should be related to the infringement of the Charter right.
The stated objective should supply a reason for infringing the Charter

RJR-MacDonald v Canada – challenged law banned advertising of tobacco

products = infringed freedom of expression. If Parlt chose to ban the harmful
product itself there would be no grounds for Charter challenge. Therefore not
relevant to charactrize objective as “protection of public health from the use of
tobacco”. Too broad – did not focus on reason for infringing the Charter. The
objective relating to the actual ban was that of the infringing measure: which was
“to prevent people in Canada fro being pursuaded to by ads and promos to use
tobacco products”. This narrowe objective was upheld as still being sigificant
enough to justify the infringement. But the law failed the least drastic means test
because it was a total ban that also covered simply informational / brand-
recognition advertising.

Vriend v Alberta – Alta HR legislation – that prohib discri on employm on several

grounds but was silent on sexual orientation. TO describe the objecctive as “to
prevent discrimination” would not suffice in a s1 analysis for justification -
because the breach lay in what was omitted from the Act. What the objective was
in failing to cover sex-orient could not be shown or discerned from the Act,
therefore the legisl failed the Oakes test at stage 1. The omission was

Rosenberg v Canada – Federal Income Tax reqd all private pension plans qualif for
tax benefits restrict survivor benefits to non-same-sex spouses. Objective of
favourig same-sex unions wasitself discriminatory and the law could not be
justified under s1.

Irwin Toy Inc v Quebec – law prohib ads directed at children under 13 – objective
was “the protection of children (a vulnerable group) from advertising, w/o
specifying the injury it sought to prevent. This was a narrowly defied objective,
which made it easy to satisfy the proportionality tests.

Hogg: the Oakes test requires a higher level of generality than a mere re-
statement of the law. Or else there will be no room to work with the
proportionality requirement – the law's means and objective will be completely

Objective of Sufficient Importance

1. -must be consistent with the values of a free and democratic society

2. -must relate to concerns wich are pressing and substantial, not merely
3. -must be directed to realization of collective goals of fundamental

-not usu an impediment to s.1 justification

Quebec's distinct society:

Values of a free and democratic soc incl respect for cultural and group identity

AG Quebec v Ford – law requiring pubic signs be solely in French. Court recog
vulnnn position of French language in Quebec – andthat protection and
enhancement of its use in Quebec = sufficiently imprtant objective to justify limit
of freedom of expression. (Struck down under proportionality limb). For French to
be predominant would be ok – but banning of English went too far.
Ironically even though the Court was pepard to recog Quebec as a distinct society
in this case the MeechLake Accord failed largely on the basis of a constl reqt to
recognize it as such.
Inadmissable Objectives
Only one case resulted in SCC copletely refecting a legislative objectie:
R v Big M Drugmart – Lords Day Act (Sunday Closing Law) infringed freedom of
religion. Its Purpse was defined as “to compel observance of the Christian
Sabbath” - it was directly contradictory to the Charter right and could not justify a
limit on it.

The secular objective of providing a uniform day of rest would be suffticiently

important. But 1. the legislative history of the act inidcated a religious purpose,
and 2. the act could only be constitutionally valid under Federalism if its purpose
was religious, because it was enacted under criminal law.

cp R v Edwards – provincial law enacted to provide uniform day of rest – purpose

was acepted as secular and the s1 analysis resulted in the Court upholding it.

So such a law would have to be secular to be valid under the Charter and provicial
to be valid under federalism because such a law would be within Provincial
competence (s92(13))

3 rules (from Big M in relation to Legislative Objective):

1. Objective cannot be incompatible with the values entrenched in the Charter
2. Objective must be intra vires the enacting body
3. Objective must actually have caused enactment of the impugned law. (Ie
Rule against “Shifting Objectives”)

Shifting Objectives:
That a laws purpose might change over time with changing social coditions –
rejected by SCC in Big M.
Purpose = is the intent of those drafting the legisl at the time. (In that case it was
almost certain that while the original motivation may have been religious – the
law had been maintained for more secular reasons)
substituting “shift in object” of law with “shift in emphasis” of law:
R v Butler – Court upheld anti-obcenity provision of the CC. Original objective was
to promote morality – this was held to be insufficiently important to justify limit on
freedm of expr.
But since in recent cases the provision had served to promote sexual equality, he
upheld it.
Although the objective was always the protection of society from the harms of
caused by obcene materials – the change in how those harms were defined was
“a permissable shift in emphasis”.
- this way the court can get around the rule
but Court refused to apply it in R v Zundel – CC offence of spreading false
news.Limit on freedm of expr. Original purpose = to protect great men of the
realm from malicious lies. The law had been used to prosecute purveyor of
Holocaust-denial literature that was deeply offensive to Jews.
Dissent: would have upheld the law – stating its original objective as “ prevention
of harm from deliberate falsehoods” and citing the modern shift in emphasis as
the modern objective of “racial harmony”. But the majority struck it down holding
that prevention of harm from dangerous falsehoods was too general a statement
of the laws objective. To convert the false news law into a provision directed at
racial harmony was to go beyond a permissable shift in emphasis. The objective
was not sufficiently important today to justify a limit on freedm of express and it
was struck down.

Can cost justify a limit on a Charter right?:

Singh v Min Immi – whether oral hearing by admin body had to be afforded to
every refugee claimant. A-G argues this would impose an unreasonable burden on
govt resources. Court held that the entrenchment of the principles of
fundammental justice in s7 implicitly recognizes that a balance of
administrative convenience does not override the need to adhere to
these principles.

R v Lee – CC provided that accused who elected trial by jury but failed to appear
for trial w/o a legitim excuse would be tried by jduge alone. While this denied the
right to trial by jury provided in s11(f), it was justif under s1. It was approp to
deny the right to those who had burdened the system with the cost of futilely
empanelling a jury.

Rv Chaulk – did CC presumption of sanity offend the Charter? Yes, it offended s

11(d) bc burden relieved of proving accused was sane. But to remve such a
difficult burden was a sufficient objective. Wiilson J dissented on this and R v Lee
- on the basis that reducing admin inconvenience not = sufft objective, for
purpose of s1 justification.
New Bruns. v G(J) – SCC held it was a breach of s7 not to provide legal aid to
person whose children were being considered for removal to wardship of state.
Lamer CJ rejected the justific of controling govt expense on grounds that savings
would be minimal.

Nova Scotia v Martin – SCC held the standard workers comp program that
standardized benefits for “chronic pain” = violation of equality rights that could
not be justified under s1 on the basis of cost / expediency. Individualized
assessment was required by the Charter.
Newfldnd v NAPE – SCC accepted cost as a justification for limiting Charter right
(this is extremely rare). pay-equity agreement w/ female workers in hospitals.
Prov series of pay incr over 5 years to bring their pay up to that of comparable
male workers. Legislature enactd Pubic Sector Restraint Act which deferred
payments for 3 years. Resulted in savings of $24M. Note: many other cuts and
budgetary freezes and layoffs caused by the Act also.
Unexpected shortfall of $200M in province's revenues. The prov's financial
crisis = sufft objective.

Rational Connection:
-First part of Proportionality Test.

R v Oakes – this part of the s1 analysis was determinative in this case. Challenged
law shifted onus of proving the accused was not in possession of drugs for the
purpose of trafficking to the accused..based solely on the finding of drugs in his
possession. “Reverse onus clause” infringed s11(d) presumption of innocence.
Objective was defined as “protecting society from drugs trafficking”. And that was
-But the Court found no rational connection between the basic fact of possession
and the presumed fact of possn for the purpose of trafficking. Hogg: would have
failed minimal impairmment limb, and prob should not have failed rational
connection limb (p38-33).

Benner v Canada – SCC breach of s15 equality rights to impose more stringnent
reqt for citizenship on persons born outside Can to a Cdn mother than those born
to Cdn father. Submitting the former but not the latter to securty checks.
Screening out of dangerous persons was a sufft objective.
BUT there was no rational connection between the objective and the
discrimination at issue.
Ie children of Cdn mothers could not rationally be regarded as more likely to be
dangerous, than those of Cdn fathers.

Greater Vancouver Trasnport v CFS – prohib politial messages o sides of

busses.Objective of “safe welcoming transit system” = sufftly important for
justification of some limits (eg. if they advocated violence / terrorism). But
political character of a message = no bearing on whether “welcoming”, no
rational connection btw law bannig political messages and the objective.

RJR-MacDonald v Canada – Even though the evidence of whether an advertising
ban had any effect on consumption of tobacco was inconclusive, the Court on
both sides was prepared to see a logical/common sense rational conection btw
the advertising bans and reduced consumption.

Minimum Impairment or “Least drastic means”

Second element of proportionality – majority of cases turns on this
-law should impari the right no more than is necessary to attain the objective
-”least drastic means” preferred title - because some limits on rights may be
justified while not “minimal” or trivial in any way
Cases where Least drastic means reqt not met:
R v Vaillancourt – CC's felony-murder rule too drastic means for discouraging use
of weapons
Ford v Que – Prohib against use of Eng too drastic for protection of Fr language
(but simply requiring use of Fr would be acceptable)
Black v Law Society Alta – prohib Alta lawyers from partnering w/ non-Alta-
resident lawyers too drastic for regulation of standards of the legal profession.
Edmonton Journal v Alta – prohib publication of accounts of matrimonial litigation
too drastic for protection of privacy
Rocket v Royal College Dental Surgeons – prohib dentists from advertising too
drastic for preservation of high professional standards
RJR-MacDonald v Can – federal prohib on all advertising of tobacco products too
drastic for curtailing tobacco consumption
Ross v NB School District No 15 – board of inquiry order that non-teaching
personnel member of school board would must be fired if continued his
dissemination of anti-semitic ideas too drastic for rectification of discriminatory
climate in the school.
Libman v Quebec – restricting spending in referendum capaigns to those affiliatd
with offical Yes or No committee too drastic for objective of equalizing financial
resources of both sides
Thomson Newspapers v Canada – Prohib publication of opinion polls in final 3 days
of election campaign too drastic for protection of voters from misinformation.
UCFW v KMart Canada – prohib peaceful distrib by striking union of leaflets at
sites not involved in a labour dispute too drastic means of minimizing disruption
to businesses not invoved.

IE. other laws were available to achieve the objectives which would have
less of an impairment on Charter rights.

Dunmore v Ontario – SCC held excluding agri workers from labour relations
statute of Ont = breach of freedm of assoc under s2(d). Objective = to relieve the
Farm economy from of formalism of collective bargaining – seen as inapprop for a
family-run type of sector and the highrisk of strikes because of the seasonal
character of farming.
-Not the least drastic means because it was a total exclusion. Legislature was
under a positive duty to enact some other form of labour relations legislation to
avoid those problems and acccomodate agri-workers. Court struck down the
provision excluding agri-wrkers so as to automatically include them. This forced
the legislature to regulate an acitivity they wished to leave unregulated.

Margin of Appreciation

A margin of appreciation has to be allowed in Canada to allow diversity among its

regions and provinces, this means a one size fits all – only correct approach is not
preferred. The courts instead show a little leeway to the means chosen to pursue
an objective.

Showing more deference in the Edwards Books case - the SCC held that the
impugned (Sunday closing) law abridged the (freedm of relig) rights of Saturday
sabbath observers “as little as is reasonably possible” - that wording not part of
the original Oakes test also written by Dickson CJ.
-the exemption in the act for small scale retailers was “a satisfactory effort” by
the Legisl to accommodate them.

IE. Court will look at “whether the legislation falls within a range of
reasonable alternatives”

R v Whyte – CC provision presumes person occupying drivers seat has care and
control of the vehicle for drnk driving offence. Reverse onus clause- infringed
presumption of innocence to make it easier to convict. SCC descr it as a minimal
interference with the presumption of innocence. .. and a restrained parl response
to a pressing social problem.

Cdn Newspapers Co. v A-G Can – CC prov upheld which auth court order banning
disclosure of identity of compl in a sexual assault case. The ban was automatic at
the prosecutor / victim's request, and the newspapers argued for it to be a
discretionary ban – so as to more minimally limit freedm of the press. SCC held
the objective was to foster complaints by victims and only an auto ban would do

US v Cotroni – SCC upheld extrad of Cdn citizen to US. =infringed mobility rights
under s6, but objective of suppressing crim = sufficient. But dissenting opinion
was that extradition did not limit the right as little as possible – could have
prosecuted the accused in Can. La Forest J's answer to this was the requirement
of “least drastic means” was to be applied “flexibly”.
There could be procedural or evidentiary reasons for prefering the US – the right
was infringed as little as possble or at the very least, as little as reasonably

The Prostitution Reference – prohib on comunnicating for purpose of prostitution –

objective to prevent nuissance of street solicitation was sufft. Court emphasized
difficulty of devising legislative solutions and that it was not the court's role to
second guess the wisdom of policy choices.

Harvey v NB – provl elections law imiposed 5 yr disqualification onn legisl assemb

members found guilty of corrupt or illegal practice = breach of right of citizen to
be a candidate in legislative assembly elections (s3 Charter). Would be a lesser
infringement if it were less than 5 yrs. Following Edwards Books, Court held it
should not substitute its opinion as to where to draw a line that is
inevitably somewhat arbitrary.

Considerations that invoke deference to the laws designed to pursue a valid

The law is designed to protct a vulnerable group (eg. children)
The law is premised ocomplex social-science evidence (eg. about effects of
The law reconciles interests of competing groups (eg. mandatory retirement)
The law deals with a “complex social issue” (eg. smoking)
The law allocates scarce resources

Proportionate effect:
Last step in the Oakes Test:
Edwards – the effect shouldnt be so severe an abridgement of individ / group
rights so as to outweigh the importance of the objective

Dagenais v CBC – this final consideration is for the Court to take into account the
proportionality btw the deleterious and the salutory effects of the measures.
Ask: Is the Charter infringement to high a price to pay for the benefit of
the law?
Hogg: redundant – and has never influenced the outcome of a case\
But McLachlin CJ has upheld it in Hutterian Bretheren : Alta's hwy law req'd
photograph of each holder of a driver's licence = infringed freedm of religion. but
upheld under s1. McL insisted the 4 stage had to be satisfied – and it was because
the salutary effects of the universal photo reqt outweighted the deleterious
effects of on the claimants' religious rights.

Equality Rights

Andrews v Law Society of BC – Oakes test too stringent for application in all cases.
McIntyre J rejected it for equality cases - and applied a more flexible standard for
jsutification under s1. Court was divided on this issue Hogg sides with Wilson J
who was part of the majority who struck the law down, andwho argued for
onerous (not flexible) burden on the govt to infringe s15 – aka Oakes test not too

Application of s1 to qualified rights (ss 7, 8 9, 22, and 12)

s7 – right not to be deprived of life liberty and security of the person except in
accordance with the principles of justice. Does s.1 permit other limits? Rare that
s1 will justify a viol of s7
BC Motor Vehicle Reference – Lamer J (obiter) yes but only in cases arising out of
exceptional conditions such as natural disasters, the outbreak of war epidemics,
Wilson J (obiter) no a law that viol the principles of fundamental justice could
never be “justified”under s1
In R v Morgentaler (no 2) – the majority held that the abortion offence in the CC
offended s7. The finding that the law “offended fundamental jsutice” basically
entailed the finding that the law was not a “reasonable limit” and not
“demonstrably justified in a free and democratic society”.

s8 – right against unreasonable search and seizure. Can a search that is

“unreasonable” under s8 be justified as “reasonable” under s1?
Hunter v Southam – elaborated reqts for legislation to auth search and seizure. So
its a different test for “unreasonable” in s8 (more restricted) than “reasonable” in
s1 (broader).

s9 – right not to be arbitrarily detained or imprisoned. Can an arbitrary detention

be reasonable and demonstrably justified?
R v Hufsky – SCC held spot-check programme had = arbitrary detainment in
breach of s9, but that it was justified under s1. Objective of preventing accidents
= sufft. Nothing less than a random stopping procedure would be as
effective.Court assumed s1 was applicable.
s11 – persons charged w/ offence have the right to be informed without
unreasonable delay of the specific offence (11(a)); to be tried within a reasonable
time (11(b)); andnot to be denied reasonable bail without “just cause” (11(e)).
The word reasonable takes on a different meaning in the context of s11 then it
does in s1 – that is what makes it possible to be an unreasonable delay but still be
a reasonable limit, for example.
Not so for 11(d) – right to trial by indep and impartial tiribunal – bc SCC gave this
one special status reinforcing it with the unwritten constitutional principle of
judicial independence. Standard application of s1 (Oakes Test) alone could
not justify an infringement of independence. (Mackin v New Bruns – where
the court refused to applly Oakes and held that the financial security of judges
could be reduced only in cases of dire and exceptional financial emeergencies
(war, imminent bankruptcy, etc)

s12 – right not to be subjected to cruel and unusual punishment may be an

absolute right.

Oakes Test also applies to common law limits on rights.

Common law rule can be a limit “prescribed by law”.
R v Swain – SCC applied Oakes to the CL rule that prosecutor can adduce
evidence of insanity against the wishes of the accused. =violation of s7 because it
limted the accused's right to control their own defence. Majority held it failed the
least drastic means limb of Oakes, and therefore could not be supported by s1.
Since it was a CL rule the Court was in a position to modify it. (unlike a statute
which would have to be struc down and left to Parlt/Legisl to fix)
The new version would allow the Crown to adduce evidence of insanity – only
after the accused was found guilty. The issue of insanity would be tried before the
final verdict entered.
R v Daviault – SCC held that CL rule that self -induced intox was no defence to a
criminal charge = viol ss7 and 11(d). The Court constr a new rule that extreme
intox was a defence, which had to be est. by the accused on a bal of prob.
Although imposing the burden of proof on the accused breached s11(d) it was
justified under s1.
R v Stone – CL defence of automatism had to be est by the accused on the bal of
probabilities. Again it would be a breach of s11(d) that was justified under s1.

Note Charter applied in these cases by virtue of Crown's involvement - the Charter
does not apply to the common law in relation to private parties, where no
governmental actor is involved. Although, the SCC will assess whether the CL
accords with Charter values – so in that sense even in non-got actions the Charter
will have an impact on the Charter, modifying the CL to make it consistent with
Charter values.
Hill v Church of Scientology – defamation action btw private parties – SCC
considered whether CL of defamation consistent w/ Charter values. But if Chartr
not applicable, s1 analysis not the approp method – instead a mre flexible
approach to balancing competing intersts should be used. Onus on Charter
claimant to show CL needed modification. In this case there was a proper balance
alrdy in place.
Emergency measures
Civil liberties severely restricted in 3 “emergencies”:
during WWI; WWII and the October cirsis of 1970.
Court will decide whether those restrictions are reasoable ad demonstr justified if
and when future emergencies arise.



The Sunday observance laws do not dictate that all laws with a religious purpose
are federal jurisdiction.
-Courts assume any law restricting freedm of religion is w/in exclusive federal
-s92(12) expressly allocates power over solemnization of marriage to provincial
-and s93(3) gives esxpress power to the provinces over denominational schools
-a law w/in provincial jurisdiction may validly attempt to “neutralize or minimize
adverse effects on human rights such as freedm of religion” - was not considered
the same as giving it a religious purpose to render it unconstitutional (-Edwards

-religion not a “matter” w/in either level of powers – not likely to determine how
to characterize the law for federalism purposes.

-but for Charter purposes – any law that affects freedm of religion vulnerable to
challenge under s2(a)

Freedom of Conscience
-protects belief system that would not fall w/in defintion of “religion”
-personal morality not founded in religion (R v Morgenthaler)

Freedom of Religion
-leading case Big M Drugmart court struck down fed law with religious purpose:
“govt may ot coerce individs to affirm a specific religious practice for a sectarian

Freedom of Religion incl:

-right to retain beliefs a person chooses
-to declare those beliefs openly w/o fear of hindrance or reprisal
-to manifest those beliefs by
-worship and practice or
-by teaching and dissemination
-per Dickson J in Big M (-borrowed from Intl Cov on Civ and Pol Rights, article 18)

*note s2(a) protects practice as well as belief

Sunday Observance
Big M was easy because stated purpose of observing Christian Sabbath contrary
to s2(a)
but the harder case was Edwards – Ont Retail Business Holidays Act was shown to
have a secular purpose – it infringed s 2(a) for having a nonsecular effect.
Economic disadv on retailers oberving other Sabbath day. Caused competitive
pressure to abandon other sabbath = abridging freedom of religion. (law upheld
under s1 – agreed that purpose was benign and important enough – but not
agreed that least drastic means)
Ont. legisl modified the law so that non-Sunday observers could close on a day
other than Sunday.

Tolerance of minority religious practices

Limit on right to practice = “such manifestations do not injure his/her neighbours
or their parallel rights to hold and manifest beliefs and opinions of their own.” per
Dickson J in Edwards Books.
-therefore no protection for religions practices that include human sacrifices or
refusal to school or provide medical treatment to a child
other religious activities have been litigated:
-refusal to salute the flag or sing the anthem (Jehova's witnesses held exempt In
-distr proselytizing tracts (written attempts at persuading conversion) (“)
-chanting a mantra (Hare Krishna's held not exempt form noise by-law)
-holding land communally (Huttrians “)

-minority religious practices will be held exempt where there is no compelling

govt interest to the contrary
Young v Young – judge granted custody to mother and father given access
conditional that he not disseminate jehova's witness religion to them. He did so
because that topic had been a source of conflict btw the father and mother
(father's views very strong) Narrow SCC majority upheld BC CorfA decision to
strike down the condition as contrary to father's right share religious beliefs with
his children. Court held no order made in best interests of children could violate
relig freedm – s2(a) was inherently limited in this way, and no s1 analysis reqd.
Courts division was on question of whether or not the restriction was in the best
interests of the children.

-in this case only Sopinka J held that the freedm auth relig practices only so far as
they do not injure others (ie he looked for a risk of substantial harm to the
children) – and since then this principle not the approach -
SCC majority favours viewing s2(a) as an unqualified right to do anything
that is directed by a religious belief.

B.R. v Children's Aid Society – SCC decision not to give babies blood transfusion
protected by freedm of religion because = jehova's witness belief. Dr felt child's
life in danger. Application was made under Ont Child welfare statute to make child
temp ward of state. Applic granted and ward consented to transfusion, which child
received. Order terminated and custody returned to parents. Slim SCC majority
agreed with parents that this was a violation of their freedm of relig. and held
that right of parent to choose medical treatment = fundl aspect of s2(a). But that
the statutory procedure taken was justified under s1. The 4 judge minority held
that the “right” had implied limits on a parnet's freedm - incl. practices which
threaten safety healh or life of a child.

Ross v NB School District No 15 – schoolteacher publicly disseminated his opinion

(not as a teacher but through books, letters to newspapers and TV appearances)
that Christian civ being destr by Jewish conspiracy. SCC unanimous the activities
protected by freedm of religion. Ross was removed from his teaching position by
board under HR statute. This meaure infr his right but was mostly upheld under s1
as a remedy agaisnt anti-semitism. In partic, that he was given a nonteaching
position was justif but not justif that he was told he would lose that also if he
contd his activities.

Syndcat Northcrest v Amselem – further broadened definition of relig freedm –

orthodox Jewish condo owners built temp structures on their patios to live in for 9
days a year. Contrary to condo by-laws. SCC reversed both judgments below to
uphold right to erect the succas in defiance of the by-laws.

“Protected religious practice”:

-doesnt have to be part of est belief system , or even shard by some others
-can be unique to claimant
-does not have to appear “obligatory” - voluntary expressions of faith equally
-all that is required : sincere belief that the practice is “of religious significance”
Subjective test – no expert evidence necessary
-also even that inquiry not in depth – since individuals can change and so can
their beliefs

Lafontaine – Jehovas aplied to municip to build Kingdom Hall in residential zone

where place of worship was a prohibited use. Municip decided not to begin
onerous process of amend by-law. McLachlin CJ applied admin law and sent
question back to the Municip to reconsider not beginning the process which would
incl public hearing and referendum.
Minority held that freedm of religion would have reqd the municip to commence
the amend processs if no where else to build it, but in this case there was already
a designated zone with a lot available they could have built one in.

Multani – issue : was 13 yr old Sikh boy Constitutionally entitled to wear a kirpan
(dagger with metal blade) to school, where statutorily auth code of conduct
prohibited weapons and other dangerous objects? SCC: yes. regulation =
infringed freedm of relig.
-student sincerely believed his religion required him to wear a kirpan at all
times, made of metal not a harmless symbolic one.
-not relevant that other sikhs accept this compromise
Nor could the prohibition be justified under s1: purpose of the rule – safety in
schools = was a sufftly important objective but it was too broad to satisfy
the min impairment test.
− the minimum limit on the students freedm was met by requiring him to wear
the kirpan in a wooden sheath sewn to his clothing.
− despite the prohib in aircraft and courtrooms which the court readily accepted,
as each environemnt justifies a different level of safety

Alta v Hutterian Brethren – photo on drivers licence exemption being sought by

Alta in fact had allowed the exemption in the past with no apparent negative
effect on enforcement, and the purpose of the law was to prevent identity fraud
-Hutterians had sincere belief their religion forbade the photos, but majority
held photo reqt justified under s1. - served important purpose and did not impose
severe burden on them as they could use some other form of travel.

Waiver of religious practice

Syndicat Northwest v Amselem – majority did not agree w/some of the judges'
finding that the right had been waived. Hogg: diagrees w/ the idea that a person
can be permitted to invoke “a hitherto secret religious scrupple” to justify not
keeping a promise made under contract.

Bruer v Marcovitz – re divorced couple degotiated agreement for spousal,child

maintenance and custody and to appear before a rabbinical court for a “get”. W/o
a get the divorce is not recognized and the “chained wife” is seen as adulterous if
she remarries, any children of the subseq marriage being seen as illegitimate.
Husband refused to grant the get, for 15 yrs. Wife brought action for breach of
contract. SCC rejected his claim that freedm of religion absolved him of his
contractual oblig. (in the wake of Amselem). The court held he had converted his
religious right to a contractual oblig and felt the need (bc of Amselem) to continue
by saying this was one of the factors weighed against him. Holding as more
important the public policies of equality, religious freedm and autonomous choice
in marriage and divorce”

Religion in Public Schools

Zybelberg v Sudbury Board of Edu – (1988) school board reg called for school day
to be opened w/religious activity incl Lord's Prayer. - conferred right on each pupil
not to particip. Reg held to be uncosntl for imposing Christian observance on non-
Christian pupils. Not saved by fact it auth nonChristian prayers also,
becuase it equally authorized a school to prescribe only Christian
exercises. (As this partic school board had done). Still amounted to indirect
coercion bc pressure to conform which a minority pupil might experience.

Cdn Civ Liberties Assoc v Ont – challenged a reg left over after Zybelberg that
reqd 2 periods per week of religious education. Even though parent could apply
for exemption. Court held purpose of law was indoctrination of Christian belief,
not education about many religions. Exemption did not save it because parents
may have been avoiding embarrassment for their children.

Note s2(a) does not have an “establisment clause” like US – which operates to
prevent govt action in est't of a religion. Closer to 2(a) is the free exercise clause
in US which can only deal wth as in our case the coercion that might be caused by
a mandatory program (with an exemption).

-in order not to violate the Charter a program would have to incl a survey of difft
religion not promoting one above the others.

Denominational Schools

SCC has implied 2(a) requires option to have children schooled outside secular
system. Prov retains right to ensure quality / standard control through regulation
Unlie US systems of aid to Catholic/Protestant schools are guaranteed in s93 of
the 1867 Act. And those schools can receive funding denied to others. SCC held
that would not be a breach of s2(a) or s15.

Religious Marriage

-statutory reqts incl licence and registrration – civil marriage cannot be denied to
anyone w/capacity and cannot be denied on basis of religion
-but churches/synogoues/mosques can deny marriage ceremony to persons not
adherents of that partic faith.
-also incl right to refuse to marry 2 persons contrary to the faith – eg if the church
does not recog divorce and one of them has been divorced already.

Same-Sex Marriage Reference (2004) – issue: could Parlt enact a bill legaliszing
same-sex civil marriages? SCC: Parlt could do so under Marriage power s91(26) –
But Parlt couldnot include the provision that nothing in the Act would affect the
right of religious officals to refuse to perform mariages not in accordance w/ their
This was ultra vires because it dealt w/ solemnization of marriage --> provl power
under s92(12). The Court pointed out that this was provided for by s2(a) anyway.

Recall provinces can enact provl Human Rights codes protecting rights, that apply
to private actors. But the Court's coments suggest such legisl could not be used
to force a religious official to recog a marriage contrary to their beliefs, on for
example equality grounds.
Nor could a sacred place (eg. church hall) be forcibly used to perform such a rite.

Note: its not “expression” under 2(b) if its not communicative.


-not always a “matter” for classification purposes – but can be, eg. Political
speech assigned exclusively to Parlt.
-otherwise classified by activity or facility where the expression occurs – result:
commercial advertising --> provl jurisdiction, incidental to sale of goods and
services in the province (s92(13)).
and tv / radio advertising --> fedl jursidiction
also false or misleading advertising --> fedl jursidiction over criminal law

Political Speech
at least some regulation of pol speech = denial of fudamental freedm of national
dimensions competent only to Fed Parlt (either under crim law / POGG)

Provl Jurisdiction
-does not extend to reg of political expression
-but auth regulation of speech on commercial or local grounds
-tort of defamation s92(13)
-advertising – as part of regulation of business and of consumer protection

NS Board of Censors v McNeil – powers of board not defined so as to exclude

political/ religious censorhip (which is a federal power) but Cort read it down so as
to exclude that type of censorship- limiting boards role to censorship of sex and
violence = local matters

Dupond v Montreal – SCC upheld Montr by-law temp. prohib assemblies in

muncipal parks/streests, under provl power over local matters (s92(16)).
-thus the category of “political speech” was made very narrow.

Federal Power
-political speech becaue political discussion is so important to the nation as a
whole it cannot be subordinate to other objectives and cannot be seen as a local
or private matter
-also power to make partic kind of speech criminal eg. sedition, fraud, obsecity,
hate propoganda, and communicating for purpose prostitution
-regulation of media w/in fed jurisd (tv/radio)

s2(b) Charter - Scope

Has the right been impugned by the challenged law? = small hurdle – usually

Rationale for protection of free speech:

1. most poweful rationale for protection of speech is its role in a democratic
govt, as the court found in Switzman v Elbling – parliamentary govt demands a
vrirtually unabostructed access to and diffusion of ideas – protects political speech
2. another rationale is that only with confliting ideas can the truth be reached – in
a marketplace of ideas – protects ideas of philosphy,history, social sciences,
natural science, medecine, and other human knowledge
3. third rationale – personal fulfilment – to allow for self-realization and persoal
growth – protects the arts, incl music and dance
-Courts have insisted on communicative purpose for the expression to be

Irwin Toy v Quebec – accepted all 3 reasons above – result is a very broad right

R v Sharpe – challenged child pronography criminal law – SCC said constitutionally

protected under s2(b) but justified under s1.

Definition of Expression -SCC: activity is “expressive” if it attempts to convey

-almost anything – does not include that which is purely physical and does not
convey or attempt to convey meaning
-has incuded the way someone parks a car if done with an expressive purpose
(ie to protest against parking regulations)

Criminal Expression - Court held comm for purp of prostit protected under s2(b)
(then justified the prohib under s1)
-the Court named 25 cirm code offences against certain inds of expression to say
they too were all protected under s2(b)
-as long as it is communicative and falls short of infliction of violence =

Violence - not protected but threats of violence are (R v Keegstra)

Content neutrality – content does not affect protection, no matter how offensive.
R v Keegstra – promotion of hatred against Jews /other racial group also protected
(but narrowly upheld the prohibition against it by 4-3)
-Court would not narrow the right by reference to other provisions of the Charter,
like equality (s15) or recog of multiculturalism (s27). (these would only be valid in
s1 inquiry into reasonable limit and purpose behind the crim prohib).

R v Zundel – SCC struck down false news provision of CC – it covered only stmnts
that were false and known to be false by accused publisher. Accused convictd aftr
pub pamhphlet denying holocaust. SCC reversed conviction because protection of
2(b) covered deliberate falshoods – since truth or falsity of something relates to
its content – and content-neutrality of the right required the court to ignore the
truth / falsity of the statemnt at issue
-by bare majority of 4-3 further refused to uphold the law under s1.

R v Lucas – defamatory libel – also protected under s2(b) – but court upheld the
law under s1 since justifiable to protect reputation from false attack.

content -neutrality causes protection to be given to undeserving expressions but

that “worthiness” is assessed at s1 analysis stage.
(because it becomes easier to justify laws prohibiting those activities).

Limitations of Expression
Prior Restraint: most severe form – incl: censorhip of films, restrictions on import
of books, publication ban in jud proceedings, and injunctions agaisnt picketing

Border Control: prohib material stopped at the border – a prohib against “immoral
or indecent” books and mags was held to be too vague (Luscher) for justif under
R v Butler – updated vers of Act used word “obscene” = which was held to be
sufftly clear

Little Sisters v Canada – bookstore challenged legisl w/ same “obscenity”

standard. Frequent seizures by customs officals using the Act to discrimnate
agianst homosexual material – this problem was addressed at the implementation
level – because the statute itself was not discriminatory.

Penal Prohibition:
-most common = prohibition + penal sanction
Crim code offences (perjury, counselling suicide)
-prohibiton of “discriminatroy practices “ in Cdn HR Act falls just short of crim
prohib. Eg. uise of telephone to spread hatred toward minority group.
HR Trib can order it to be stopped – order entered into Fedl Crt and failure to
comply is punishable by contempt
-Canada v Taylor – this process was followed and T contd spreading anti-semitic
messages by telephone. Appealed committal. SCC held ban on messages viol
s2(b) but justified under s1.

Civil Prohibition:
-eg. tort – defamation, contract law – agreement to keep iinfo confidential
-may be ordered to compensate /or be restrained by injunction
-no Charter remedy – bc Charter does not govern private matters
-if civil prohibition is created by statute – then Charter applies and s2(b) is

Forced Expression : eg. RJR MacDoald v Can (1995) – Fed Statute req packages to
display health warnings re smoking = held to be a breach of 2(b) --> freedm of
expr entails right to say nothing. The reqt was justified under s1 but one aspect
of the law made the warning anonyous (even though written by fedl govt) and
another prevented ay additional info appearing on the pack, other than brand
name. The court struck down the unattributed warnings reqt.

New version of the law allowed warnings to be attributed to Health Canada – and
that warning occupy 50 % of pack. This was upheld in Can v JTI MacDonald

Slaight Communications – reference letter – forced expression – held to be breach

of s2(b) but it only included “objectives facts not in dispute” so justified under s1.

Lavigne – union used some funds to promote left wing causes of which nonunion
embeer forcfed to pay dues did not approve. = no breach of s2(b) because forced
union dues not “expression”

Language Reqt:
in Ford v Quebec – Court held language colours the content and meaning of
expression. Freedm of expr includes right to express one's self in langage of one's
Prohibtion of use of any language other than Fr = violation of s2(b)
Devine v Que – Fr lang reqd on brochures, orders, invoices and other business
docs = breach of s 2(b) – even though langs other than Fr permitted – because
“freedom” means absence of compulsion as well as absence of restraint.
(Not being told you have to do smthg as well as not being told you cant do

Search of press premises: (CBC v Lessard; CBC v NB) warrants to obtain film
taken by tv crews – SCC minority held : breach of freedm of press bc chilling
effect on newsgathering if info gathered was available to police. But majority
upheld the warrants, as not breaching s2(d) mostly bc films had already been
shown, noting such warrants should be issued with caution.

Time, Manner and Place: least severe form of restriction, regulating how, when
and where expression can take place. eg. stipulating time and route of parade.
-since it is not the content of expression that is regulated probably will not
be=s2(d) breach

Ramsden v Petersbourough – too broad a regulation = significantly restr

-prohib posters on any municip property – not content specific – just how and
where – but postering is an inexpensive way for poorly-funded groups to get
organized and utility poles = most obvious place to put them. SCC held ban too
broad to be upheld under s1 but a more narrow restriction might be.

Thomson – opinion polls p43-21

Kmart – secoondary picketing p43-21
Pepsi-Cola - secondary picete and intimidation p43-21

Commercial Expression

advertising = expression because (1) difficult to distinguish fromm other kinds of

speech and (2) contributes to the “market of ideas”, so its protected.
-balanced w/ cosumer protection goals in s1 analysis
-needs to be accurate when it comes to price, quality, effectiveness, safety, etc

restrictions – Irwin Toy case – ads directed at children under 13 prohib = justif
limit under s1, bc vulnerablility of children – exception was toys and cereals, and
could not use cartoons – so not an absolute ban
Rocket – dentist advertising ban – profs usu have imits on advertising their
services but this was more severe – failed s1 justification
RJR-MacDonald v Canada – 1995 – prohib agaisnt advertsing tobacco products –
couldnot be saved by s1 because total ban – incl purely informational advertising
New version of the Act put in SCC's suggestions – ad was upheld in Can v
JTIMacdonad (2007) McLachlin held :
-public health objective = important
-commercial expression restricted = low value
-sufficient effort ot meet min-impairment concerns expressed by the Court re
earlier version

Signs : R v Guignard – sign on residential property (compl about insurer) contrav

by-law against billboards being confined to industrial zones – because it had
insurer's name = advertisement
SCC acquitted G on basis of infringed freedm of expr – it was no reasonable,
arbitrary and disproportionate to any benefit it secured

Vann Niagara – SCC accepted by-law against billboards measuring more than 80

Prostitution: lawful in Canada, but CC makes it an offence to communicate for

purpose of.
Prostitution Reference (1990) = commercial speech protected by s2(b). Justified
limit under s1, for purpose of eradicating street nuissance. Minority found the law
to be overbroad for not excl communication btw prostitutes and customers where
no harm was being caused by others.


industrial action to pressure employers to settle differences with workers =

communicative and protected under s2(b)
=commercial expression – to encourage employers not to work and consumers
not to buy
Dolphin Delivery – union challenged constitutionality of an injunction issued by BC
court to prohibit “secondary picketing” (occurs at loc other than workplace). Court
held it constituted the tort of inducing breach of contract. SCC held no application
of Charter – private parties.
Vancouver Courthouse case – CJ himself issued injunction on his own motion w/o
notice to union. SCC held that Charter did apply to an injunction for criminal
contempt of court, and the injunction was a limit on freedm of expr.
-But assuring unimpeded access to the court was a sufftly important objective
to justify the injunction under s1.
-Injunct was not overly broad because if picketing occurred where access to
courts not obstructed than it was allowed (ie somewhere else).

UCFW v Kmart – challenged secondary picketing provisions in BC statutory labour

code – no picet line, no obstrution of access, only leaflet distrib urging boycott.
Lab Rel board enjoined the activity. SCC foll Dolphin – picket = exression,
protected. Prohibition justified by objective of minimizing disruption to
businesses not involved in the dispute. BUT injucnt was too broad in prohibiting
peaceful leafletting.
Declaration of invallidity suspended for 6 months so that Legislature could
costruct narrower prohibition that would not incl peaceful picketing.

Pepsi-Cola v RWDSU – secondary picketing in this case incl actual picket lines and
obstruction of delivery of coca-cola products to retailers. No legislation in place
(Sask.) however Court held that common law should be modified to make it
consistent with “Charter values”.
Especially in present case – because CL was unclear.
Court followed the “wrongful act” doctrine – i.e. no distinction made btw
secondary/primary picketing – only restr was if it involved commission of a crime
or tort.
-picketing can injure neutral 3rd parties – but the law of torts may be used to
enjoin these activities – in this case picketing at shops lawful but at residences of
employees amounted to tort of intimidation
Court further hinted that if labour legisl that was a little more restrictive was
enacted it would be upheld under s1.

Hate Propoganda
-Crim code offence to willfully promote hatred against any section of the public
distinguished by race, colour, religion, or ethnic origin.
-limit on expression that is worthless and harmful
R v Keegstra – challenged hate propoganda prov of CC – SCC refused to read any
conten-based restriction into s2(b) rights – all messages no matter how unpoplar,
distasteful contra mainstream were protected. Nor could 2(b) be narrowed by ref
to another right such as s15 (equaity). K was found guuity of making anti-semitic
coments to his students = constitionally protected activity – but competing
equality values had to be taken into account at s1 analysis stage – those values
stregnthend the purpose of the law making it easier to uphold under s1.

R v Zundel – former offence of spreading false news – known to be false and

causing/ likely to cause injury to a public interest. SCC acquitted the accused -
publishing falsehoods protected under s2(b). = by virtue of doctirne of
content neutrality. and 4-3 the Court held it could not be justified under s1.
-the problem w/ the false news prohibition --> did not specify any type of
statement or what type of injury was being contemplated by the Code.
cp Keegstra – where the prohib wasspecifically agaisnt willful promotion of hatred
against identifiable groups. Whereas the original purpose in false news law was
now outdated (prevention of falsehoods about “great men of the realm”).

Civil remedy for damage to reputation by false statements
-Liability for defamation is absoute
(allthough Austr and US did it -) SCC refused to alter the Common law of
defamation to protect criticism of public officials:
Hill v Church of Scientology – Hill, Crown attorney, empl by Ministry of A-G (Ont),
Church of Scient. accused him of disobeying court order that sealed docs which
had been sezied under a search warrant. Church of S held press conference
announcing the allegations and contempt proceedings which would be brought
against Hill.

-Those proceedings in fact exonerated him and he sued for defamation - jury
awarded $1.6 million in damages. SCC upheld the award – Charter did not directly
apply to the proceedings
further that the Common law as it stood = consistent with Charter values and did
not require modification.
Hogg: This upholding of the high award will escalate level of damages public
officials can expect to recover in future defam suits – and will increase the
incentive for caution in criticizing or reporting the activities of public
One change was made to defamation law in this case : The Court expanded
defence of “qualified privilege” to cover descriptions of the contents of
documents (like pleadings) publicly filed in court even though no hearing had yet
taken place. (It used to be that only reports made in open court were protected).
This defence was could not succeed in this case because the publication was too
excessive (calling a press conference).

Note court commented that this case did not involve “the media or political
commentary about public policies” (i.e. those may be exceptions) ...Canada out of
step w/rest of comoon law world by failing to restrict defamation suits by public
Change in direction brought in:
Cusson v Quan – police officer became prominent for volunt search and rescue
after 9/11 attack – Ottawa Citizen published critical articles about him botching
rescue efforts. Some statemtents found to be true but some were false and
defamatory. Ont CofA held that the no-fault law of defamation was inconsistent
with Charter values if applied to the media due to its chilling effect on freedm
of the press. Sharpe J suggested a new public interest defence of responsible
journalism – where def could show it met the standards of resp journ and the
public was entitled to hear the story – eve if some of the facts turned out to be
untrue (or could not be proven).

Note that law of defamation is much more forgiving to statements of opinion than
those of “fact”. Defence of “fair comment” : avail to publisher of opinions that
are :
1. Based on fact
2. related to a matter of public interest
3. that which an honest (not necessarily reasonable) person could hold

WIC Radio v Simpson – SCC judgment suggests that Sharpe J's approach (in
Cusson) might be approp. Radio host criticized S on air w/false accusation that
she would codone violence agaisnt homosexuals – being false and injuriouus o S's
reputation, it was defamatory. BUT defence of fair comment avail as the
statements were of opnion not fact.
The “honest belief” was not held by Mair himself, and per Binnie J it didnt
have to be... that anyone might hold that belief honestly was sufficient.

Neron v Chambres des Notaires – action for defamation against CBC – Que civil
code does not provide separate tort of defamation. CBC program critical of the
Chambres. Neron wrote letter to CBC alleging errors – the letter was quoted in a
follow-up program which correctly pointed out that some of the alleged errors
were actually correct. Neron sued alleging the 2nd program damaged his
reputation. Heavy damages award was upheld by SCC – The CBC's “fault” incl:
that it only showed the parts of the letter that were wrong; it did not give Neron
the chance to check his statements and retract them; and it adopted a defensive
tone = breaches of professional journalisitc standards.
Result of this case is that in Quebec – any media statement which lowers a
person's reputation – no matter how true or impotant the statement may be –
runs ris of defamation liability if journalistic standards not met.
(cp Common law reqt that statement must be false – but which admits no
defence of due diligence or good faith).


-laws banning pornography have been justified as protecting public morality

– serious threat to freedm of expression – resulting in banning of works by great
--major problems of definition – and risk of suppressing serious ideas
-new objective on which such laws are based is to promote equality for women –
who are often degraded in pornographic material – this makes a stronger
argument for applying s1.
Pornography = protected expression (--> content-neutrality doctrine)

R v Butler – charged w/ selling obscene material – challenged the CC prohi which

defined “obscenity” as ....dominant characteristic is exploitation of sex or sex and
any one or more of: crime, horror, cruelty and violence
Unanimous SCC held prohib offended s2(b) because it restricted communication
of certain materials based on their content. But Court upheld prohib under s1.
-undue exploitation of sex = harmful to society (and women in particular)
(exception noted was where reqd by internal necessitites of a work of art)
For s1 analysis to succeed in upholding a prohibition – must be “prescribed by
law” (which requires that the law isnt excessively vague – the usual
problem in upholding this type of law.
Note : test of vagueness applied to the language of a statute as it is
interpreted...the gloss of harmfulness placed on the language of the Code
gave it enough precision to count as an “intelligible standard” (ie not too vague
for citizens to know how to meet it).
Thus Sopinka J was able on this basis to hold that the objective of the Code
was not mere moral disapprobation, but “the avoidance of harm to society” =
sufftly important obj. to justify limit on freedm of expr.
It also met the min impairment test because it only applied to material that:
-created a risk ofharm to society and
-was accompanied by either violence or was degrading or dehumanizing
-was not required by internal necessity of work of art
and not applicable to obscene materials being privately owned or viewed.
Thus the court found that the legislation was no wider than necessary to
accomplish the legislative purpose of preventing harm to society.

In Little Sisters – SCC held that it was not inappropriate to use a single community
standard of obscenity and the definition of that word in the Code was not
discriminatory – th emajority upheld the pohibition but called for improved
enforcement that would be nondiscriminatory.

Power ofclassification of films prob not a limit on express but some Boards given
power of censorship = prior restraint = most severe form of limit on freedm of
Re Ont Film Society – scope of power to refuse approval of films/videos for
exhibition had to be confined w/in the Butler test in order to be a valid limit unde

R v Sharpe – CC offence of child pornography. --> held to be limit on freedm of

expr – but whether it could be justified under s1 turned on whether mere
possession was harmfu to children – Court held it was – because it contributed to
the market. - there was a reasonable apprehension of harm = enough to satsify

Access to Public Property

general rule – owner has right to determine who will use their property and for
what use.
but s2(b) does not apply to private property and confers no right to expression on

Test for application of s2(b) on public property – consider:

-historical function of the place;
-actual fucntion of the place; and
-whether other aspects of the place suggest that expression within it would
undermine the valued underlying free expression
-Montreal (strip club) case [aka “Montreal Test”]

Commee for Commonwealth of Can v Canada – Crown owned Dorval airport Mtrl –
could mgr prohib distr of politcal material? SCC unanimous that progibtion was
unconstitutional – s2(b) conferred a right to use public property for
purpose of expression – but any restriction on expr on public property
would have to be justified under s1.
Lamer CJ would allow proprietary controls over access to the extent necessary to
carry out the principal function of the govtl place. (By his reasonning a rule of
silence in the Parliamentary library would not violate s2(b), and would not have to
be justified under s1) – if the expression was compatible with the function of the
govt place then a limitation on it would have to be justif under s1.

Ramsden v Peterborough – postering = expression, and postering on atleast some

kinds of public property (incl utility poles) was protected by s2(b). Under s1 –
muncipalitys objective justified a limit but the ban was broader than necessary to
accomp them. (visual blight, litter, traffic hazards and interfrence with repairs) so
it failed on least drastic means limb.

Montreal v 2952-1366 Quebec – strip club – loudspeaker at entrance broadcast

music and inside commentary. City by-law prohib usic that could be heard outside
a bldg – did not specify noise level/ disturbance reqt.
Court interpreted by-law as applying to “noise which aversely affects enjoyment
of the environment” - Recall in Butler : test of vagueness applied to the
language of a statute as it is interpreted.
Boradcast conveyed message about show inside = expression -but was it
protected once transmitted into a public street?
Test for application of s2(b) on public property – consider:
-historical function of the place;
-actual fucntion of the place; and
-whether other aspects of the place suggest that expression within it would
undermine the valued underlying free expression

streets= public areas where expr of many varieties has long been accepted --> so
club's broadcast into the street was protected by s2(b)
but the law was justified under s1 despite lack of standards as to noise level /
effect of noise

Greater Vancouver Transport v CFS – sides of buses = public property – public

transit bodies permitted advertising – their policy incl prohibition of political
messages – SCC applied Montreal Test – was expr on busses protected by s2(b) ? :
-Historically – no, busses not used for expression.
-But “actual function” – was that busses were so used now
-Expressive activity not incompatible with the primary function of a bus – i.e. as a
vehicle for public transportation. Therefore s2(b) extended to sides of
Prohibition of political messages = breach of s2(b) and law could not be
saved by s1

So when dealing with public place:

1. apply Montreal Test to see if 2(b) protects the expression
2. does the law breach s2(b) – is there a limit on freedm of expression
(remember that its content neutral)
3. apply s1 analysis to determine of the limit is a) reasonable and b)
prescribed by law --> this means making sure:
1. the law is not too vague
2. the objective is sufftly important
3. the means of achieving the objective are:
a. proportionate to the objective and
b. the least possible infringement of the right in question (are
there reasonably avail alternatives – that would achieve the

Access to Courts

-Fair Trial rights may conflict with freedem of the press right
-pre-trial publicity may create bias in potential jurors
-may damage reputatio of someone later exoderated
-may create perception that courts not neutral if they are drawn into
political contraversy

Restrictions on reporting:

-freedm of press incl right to publish reports of court proceedings

Edmonton Journal v Alta – legisl prohibiting press reports of matrimonial litigation
- struck down – viol s2(b) – under s1 some protection of privacy should be
afforded individuals but the law was wider than necessary to achieve the

Cdn Newspapers v Can – CC provision for court order prohib publ identity of compl
in sexual assault case. Justified limit under s1 because mandatory ban reqd to
make victims feel safe enough to testify. (objective of the statute).

Dagenais v CBC – TV program the Boys of St Vincent – injucntion prohib boradcast

– not report of jud proceedings – because the program was fictional. - resembled
the circumstances of the charges that 4 priests (who sought the ban) were facing.
-ban was granted under CL power to prevent “real and substantial risk of
interference with fairness of trial” - ban was limited to period of trials.
SCC struck down the injunction – stating that the CL rule gave too much weight to
fair trial and not enough to freedm of expression.
-since it limited freedom of expr the injunction had to be justified under s 1.
This meant the court would have to find that reasonably available
alternatives would not prevent the risk. SCC held alt incl adjournment,
change of venue sequestering jurors and strong directions to jury. Therefore
injunction could not be justified.

R v Mentuck – undercover police use of Mr Big technique – order sought to

protect officers names and technique details – accused challenged order under
s11(d) right to a “public” hearing, as well as 2(b). - Trial judge granted order
protecting names but not the technique.
SCC upheld judge's order.
-->What the Crown was required to show:
1. a serious risk to the poper admin of justice
2. reasonable alternative measures wouldnt prevent the risk
Toronto Star v Ontario – SCC affirmed that court proceedings to be open
unless this would subert the ends of justice --> reporting of pre-trial phase –
warrants were obtained to search meatpacking plants suspected of violating
health laws – Crown applied for order to seal search warrants to protect the
whistle-blower, conifdential police source.
SCC quashed order sealing warrants – which once issued become public
informatio – buthte court did order that they be edited so as not to reveal identity
of informant.
(Note : the Court's approach here to minimize the limit on freedom of
expr to what was strictly necessary to achieve the objective.)

Restriction on Access:

Freedm of press incl right of press and of public to be present in court.

In Edmonton Journal the publication ban did not inlude denial of access to the
court room.

Re Southam and the Queen (No1) – Juv Delinq Act reqd that trials of chidren take
place w/o publicity. Ont CofA struck down a complete ban as not justified under s1
– some cases would require excl of the public but not all. - ie not the least
restrictive means of attainting the objective. Court refused to read judicial
discretion into the Act ... New version under YOA provides for open court
subject to judge's discretion. This discretionary provision was upheld in Re
Southam (No 2).

CC calls for proceedings to be in “open court” but it also confers on a trial judge
the power to exclude all or any or the public from the court room for all or part of
the proceedings.
Access can be restricted if judge feels it is in the interests of the admin of justice.
CBC v N.B. - judge excl public and media from part of the sentencing hearing of a
prominent citizen who had plead guilty to sexual assaults of several young girls.
Exclusion order covered the detailing of the acts – and lasted about 20 minutes. It
was by agreement of the accused and prosecution but reporter denied access
sought declaration that the authorizing provision was unconstitutional. SCC
upheld the provision unanimously.
Any power excluding the media from a courtroom = breach of s2(b).But justiifed
under s1. The important objective was that of empowering a judge to make an
orer when openness would be inimical to the proper admin of justice. Being
discretionary it was no more than necessary to achieve the object.
La Forest J noted that in considering an excl order: the judge had to give approp
weight to the value of subjecting sentencing proceedings to public scrutiny – and
only exceptional circumstances of hardship to the accused or the complainants
would override this value. (Note court not too worried about adverse publicity for
accused at sentencing stage since they have been found guilty at that point).

Pre-Inquiry – held by J.P. to determine whether to commence crim proceedings

against a person against whom an information has been laid – neither the accused
nor any member of
the public is entitled to be present.
Southam v Coulter – private citizen swore information against cabinet ministers
ad sr police officers alleging bribery and corruption. Press were anxious to attend.
Ont CofA held right to attend pre-inquiry was constl. But justified limit to protect
falsely accused persons and of prejudice to those who were not falsely accused
yet would be eligible for a fair trial.

Re Vancouver Sun – SCC in camera judicial investigative hearing – authd by the

Anti-Terrorism Act – Authorized police to gather information in relation to a
terrorism offence which would lead to the special hearing. In this case the
activities were connected to acts of terrorism incl airport expolosion in Japan and
Air Inia flight which crashed with total loss of life. Judge closed the hearing to the
press and the public – Vancouver Sun learned of the hearing and appealed the
judge's refusal to grant them access to the SCC.
SCC held : the open court principle (protected by s2(b)) could only be limited if
the standards in Dagenais, and Mentuck were met. ie:
(a) that the order is “necessary in order to prevent a serious risk to the proper
administration of justice because reasonable alternatives will not prevent the risk;
(b) that the salutary effects of the order outweigh the deleterious effects on the
rights and interests of the parties and the public.

Access to Legislative Assembly

NB Broadcasting Co v NS – SCC upheld ban on tv cameras in legisl chamber. Court

held that parl priv incl power to excl strangers and that power not subject to
Charter rights.

Contempt of Court

=an act that offends the admin of justice. Eg. failure to obey a court order -->
“civil contempt” = no effect beyond parties to the order; and no application of
cp --> “criminal contempt” = where offence has public significance that goes
beyond the immediate parties; and the public character of criminal contempt
makes the Charter applicable.
2 types of criminal contempt :
1. direct contempt = in the face of the court – disruptive words or acts that tae
place in the courtroom. eg. insult judge, refuse to answer questions
2. indirect contempt = not in the face of the court – words or acts outside the
court room that tend to obstruct the admin of justice. eg. publishing an article
that would render a trial unfair

R v Kopyto – lawyer lost civil suit against police officers made stmnt to press that
“courts and RCMP sticking together like Krazy Glue.” - he was charged and
convicted of scandalizing the court. Ont Cof A allowed K's appeal and held that
the charge of “scandalizing the court” had not survived the adoption of the
Charter. Criticism of the courts after proceedings had ended were
constitutionally protected and could not be restricted under s1 as they
could not be found to prejudice a pending or ongoing trial.

Public Service

Osborne v Canada – Pub Sev Empl Act – prohib form working for/against a
candidate for election or for/against a political party. SCC held the Act did limit
freedm of expr under s2(b) and that it was not justif under s1.objective of
maintaining neutral public service = valid BUT not the least drastic means- Act
was too broad in terms of activites it covered and in terms of which public sevants
it applied to.

Election Expenditures

restr on expend = indirect restr on speech because of the cost of time/space in

media for campaign messages.
Fed Can Elections Act imposes spending limits on parties/ candidates during an

Harper v Canada – upheld restrictions on 3rd party expenditures during election

campaigns. Even though restr freed of expr – justified under s1. They allowed 3rd
parties to use modest means of advertising to inform the electorate of their
message in a manner that will not overwhelm candidates, political or other 3rd

Libman v Quebec – prohibition on 3rd party expenditures which breached freedom

of expr could not be justified under s1. Failed least drastic means test because it
totally prohib 3rd party expenditures – had to be either under the yes or no
committee – no room for promoting abstention for example.

Hogan v Newfldnd – right to freedm of expr did not demand spending limits
(fairness served as a juistification for them when they were imposed – but s2(b)
does not give rise to a right to have spending limits).


s3 of the Charter – guarantees the right to vote – for federal House of Commons
and Provl Legislative assemblies.
Hiag v Canada – Cdn citizen - not a resident for voting purposes – SCC agreed that
casting a ballot = expression – but did not impose a duty on gov to consult
citizens on referendum and if a referendum was hed there was no duty to
consult every one
-can only complain if it amounts to brreach of s15 equality rights – but residency
reqts for voting = not a breach of s15.

Access to Government

Native Women's Assoc of Can (NWAC) v Canada – argued other orgs dominated
by men – and theirs not receiving funding or being invited to discussion = breach
of freedm of expr – SCC reaffirmed Haig – that got under no general duty to
provide funding or discussios with a particular platform of expr – while govt could
not do so in a way that discriminates under s15, s15 did not impose a positive
duty to hear every point of view.

Baier v Alta – could board disqual teachers from serving as trustees- SCC: not a
breach of s2(b) – the law did not prev teachers from expr ther opinion on issues –
but from managing schools due to conflict of interest in labour relations matters.