CONSTITUTIONAL- FALL 2016

INTRODUCTION…...………………………………………………………………………………………….4
Sources of Constitutional Law……………………………………………………………………………………….4
Reference Re: Secession of Quebec – democracy/federalism/respect minorities/constitutionalism & rule of law...4
Royal Proclamation (1763) –original Aboriginal title document.…………………………………………………..4
UNWRITTEN PRINCIPLES………………………………………………………………………………...5
Judicial Principles……………………………………………………………………………………………………5
Provincial Judges Reference (1997) –judge constitutional right to financial security……………………………...5
Reference Re; Supreme Court Act –const. amend needed changes to SCC………………………………………...5
BC v. Imperial Tobacco Canada –principle “RoL” cannot strike down legislation.………………………………. 5
BC (AG) v. Christie (2007) –no general right to counsel…………………………………………………………....6
Trail Lawyers’ Association of BC v. BC (AG) (2014) –underlying right access to justice………………………... 6
Reference Re: meaning of the Word “Persons” (1928)…………………………………………………………….6
Edwards v. Canada (1930) –living tree interpretive doctrine…………………………………...…………………..7
Halpern v. Canada (2001) –evolving definition of words in const…………………………………...………….....7

EARLY INTERPRETATIONS OF FEDERALISM………………………………………………….. 7

Citizens Insurance Co. v. Parsons –s. 91(2): int’l, intra-prov. general affecting whole dominion…………………7
Temperance:
Russell v. the Queen –temperance as POGG emergency……………………………………………………………7
Hodge v. The Queen –double aspect/incidental effects/coordinate sovereignty…………………………………….8
Local Prohibition Reference 1896 –confined POGG from Russell………………………………...………………8
Depression Era:
Board of Commerce/Combines & Fair prices Act Reference 1919 –POGG standard of necessity………………..8
S. 132 & Powers Relating to International Treaties………………………………………………………………….8
Aeronautics Reference –aeronautics as POGG jurisdiction……………………………………...………………....9
Radio Reference –radio as POGG jurisdiction………………………………………………………………………9
Labour Conventions (Ont. v. Canada) (1937) –nat’l emergency to intrude 92(13)………...……………………....9

INTERPRETING DIVISION OF POWERS

A. PITH & SUBSTANCE……………………………………………………………………………………………9
R. v. Morgantaler (1993) –pith and substance test, 91(27) definition……………………...……………………….9
Reference Re: Employment Insurance Act (2005) –matter must fit in scope of head of power...………………..10
B. DOUBLE ASPECT…………………………………………………………...…………………………………10
Multiple Access v. McCutcheon (1982) –duplication without conflict okay………………………………………10
C. NECESSARILY INCIDENTAL…………………………………………………………...…………………....11
GM v. City National Leasing (1989) –necessarily incidental test………………………………………………….11
Quebec v. Lacombe – minimally/rationally/functionally connected to the purpose ………………...…………….11
D. INTERJURISDICTIONAL IMMUNITY…………………………………………………...…………………..12
Bell Canada v. Quebec (Bell #2) –federal undertakings “core”……………………………………………………12
CWB v. Alberta (2007) –impact non-essential/vital at the “core”  possibly validity………...……………….…12
Quebec v. COPA (2010) –clear proof of purpose to prove frustration…………...………………………………...12
Canada v. PHS Community Services Society –IJI indefinable health core………...………………………...…....13
Tsilqot’in Nation v. BC (2014) –no IJI Aboriginal title lands…………………………...…………………….......13
E.PARAMOUNTCY……………………………………………………………………………………………….13
Ross v. Registrar of Motor Vehicles (1975) –dual compliance without frustration possible……...………………13
Multiple Access v. McCutcheon (1982) –no frustration no paramountcy……….………………………..……….14
Bank of Montreal v Hall –impossibility of dual
compliance………………………………………………………14
Rothmans v. Saskatchewan (2005) –dual compliance/frustration analysis………………..……………………...14
Alberta (AG) v. Moloney (2015) –bankruptcy paramountcy……………………………………………………….14
SASK v. Lamere Lake Logging (2015) –intent analysis paramountcy……………...……………………………..15
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HEADS OF POWER
A.POGG…………………………………………………………………………………………………………….15
Reference Re Anti-Inflation Act (2007) –valid emergency of POGG……………………………………………..15
R v. Crown Zellerbach (1988) –national concern POGG test………………………………...…………………....16
Old Man River Society v. Canada – fed govt. prov. project intervention if in residual pogg…...………………...16
B. ECONOMIC REGULATION POWER….…………………………...…………………………………………17
The King v. Eastern Terminal Elevator Co (1925) –exported product not necessarily under 91.2………...……..17
Carnation v Quebec Agr. Marketing Board (1968) –setting prices for exporting not under fed. Power…...….…17
AG Manitoba v. Manitoba Egg and Poultry (1971) –inter-provincial trade ultra vires for prov………………….17
Agricultural Products Marketing Act (1978) –P&S as production = prov………………………...……………...17
Klassen v. The Queen (1960) –grain elevators national issue……………………………………………………...18
Labatt Breweries v Canada (AG) (1989) –regulation of single trade not issue of national concern……...……….18
GM Canada v City National Leasing (1989) –preliminary checklist general power over trade……...…………...18
Re: Securities Act (2011) –history of where issue sits is important/prov. opt-in hurts GM test…………………...19
C. CRIMINAL LAW (FEDERAL)…………………………………………………………………………………19
Margarine Reference (1949) –purpose + form (prohibition & penalty) = valid criminal………..……………….19
RJR MacDonald v. Canada (AG) (1995) –absolute prohibition not needed, exceptions okay....…...…………….19
R v. Hydro Quebec (1997) – Protection of env. from harm a valid criminal law purpose…………………………19
Reference Re: Firearms Act- licensing regime okay if it eventually prohibits something………………………...20
D. CRIMINAL LAW (PROVINCIAL)…………………………………………………………...………………..20
Nova Scotia Board of Sensors v McNeil (1978) –revoking a license regulatory in nature not criminal…………..20
Westerdorp v the Queen (1983) –prov. prevent crime through prov. head of power only…………………...……20
Ontario AG v Chatterjee (2009) –civil forfeiture of proceeds from a crime……………………………...…...…..21
Goodwin v. BC (2015) –taking away privilege + penalties may not be in criminal power………………………...21
Re: Assisted Human Reproduction Act (2010) –regulatory scheme can exist if purpose its there………...……...22
AG Quebec v AG Canada –cooperative federalism cannot be used to strike down laws…...……………………..22

ABORIGINAL RIGHTS………………………………………………………………...…………………...22
A. BACKGROUND………………………………………………………………………………………………...22
B. ABORIGINAL RIGHTS………………………………………………………………...………………………22
R v Sparrow ……………………………………………………………………………………………..…………23
Sparrow Test………………………………………………………………………………………………………..24
R v van der Peet (1996) ……………………………………………………………………………………………25
R v Gladstone (1996) ………………………………………………………………………………………………25
Lax Kw’alaams Indian Band v. Canada (2011) ………………………………………………………..…………26
R v Sappier; R v. Gray (2006) ……………………………………………………………………………..………26
Ahousaht Indian band v. Canada (AG) (2011) ………………………………………………………………….27
C. INTERPRETATION OF TREATIES…………………………………………………………………….......…27
Grassy Narrows FN v Ontario………………………………………………………………………………..……27
R v Badger……………………………………………………………………………………………………….…27
R v Marshall (2005) ……………………………………………………………………………………….….……28
D.INFRINGEMENT……………………………………………………………………………………....……..…28
Tsilqhot’in v BC (2014) ……………………………………………………………………………………………28
Beckman v LSCFN (2010) …………………………………………………………………………...……………29
E. METIS RIGHTS……………………………………………………………………………………...…….……29
Manitoba Metis Federation v Canada (2013) …………………………………………………………….………29
R v Powley (2003) ……………………………………………………………………………………………….…30
Daniels v Canada (2016) ………………………………………………………………………………..…………31
F. SELF-GOVERNMENT…………………………………………………………………………………….……31
R v Pamajewon…………………………………………………………………………………………………..…31
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CHARTER OF RIGHTS AND FREEDOMS

Charter origins and Dialogue theory………………………………………………………………………………..33
A. Where Does the Charter Apply?………………………………………………………………………………34
BCCLA v UVic……………………….……………………………………………………………………….……34
Hill v Church of Scientology………………….………………………………………………………...…………34
RWDSU Local 558 v Pepsi-Cola………………………………………………………………………………..…35
Territorial limits of the Charter (Cook, Hape, Khadr, Amnesty)…………………………………...………………35
B. REMEDIES…………………………………………………………………………………………….………35
Schachter v Canada……………………………………………………………………………………..…………36
Vriend v ALTA…………………………………………………………………………………………………..…36
M v H……………………………………………………………………………………………………….………36
C. SECTION 1…………………………………………………………………………………………………..…33
R v Oakes………………………………………………………………………………………………...…………36
Oakes test……………………………………………………………………………………..……………………37
D. SECTION 2- Freedom of Religion……………………………………….……………………………………37
ALTA v Hutterian Brethren…………………………………………………………………………………..……37
Syndicat Northcrest v Amselem……………………………………………………………………………………38
TWU v BCCT……………………………………………………………………………………………………….38
SL v Commission Scolaire Des Chenes……………………………………………………………………………39
Loyola High School v Quebec…………………………………………………………………………..…………39
E. SECTION 15- EQUALITY RIGHTS……………………………...…………………………………….……40
Andrews v Law Society of BC……………………………………………………………………………………...40
Law v Canada………………………………………………………………………………………………………41
R v Kapp………………………………………………………………………………………………………….…41
R v Withler………………………………………………………………………………………………….………42
Quebec (AG) v A……………………………………………………………………………………………………42
F. SECTION 7…………………………………………………………………………………..…………………42
Ref. re: Motor Vehicle Act…………………………………………………………………………………………42
R v Morgantaler……………………………………………………………………………………………………42
Canada v Bedford…………………………………………………………………………………..………………43
Carter v Canada……………………………………………………………………………………………………43
Gosselin v Quebec………………………………………………………………………………………….………44
Chaoulli v Quebec……………………………………………………………………………………………….…44
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INTRODUCTION
Source of Constitutional Law:
 Written: Constitution Act, 1867 & Constitution Act, 1982 & Supreme Court Act (constitutionalized after
JCPC ceased being top court of Canada in 1949 & enshrined in 1982)
 Unwritten: conventions imported from Britain including preamble: Canada to have a “Constitution similar
in Principle to that of the United Kingdom,” & common law system

Ways a law can be Unconstitutional, it violates…

 Unwritten Principles: unwritten constitutional principles (rule of law, judicial independence)
 Federalism: the authority of the provincial legislature or federal parliament that enacted it
 Aboriginal rights & Individual and Group rights: the legislation infringes an aboriginal or treaty right,
and that infringement cannot be justified.
 Charter rights: the legislation infringes a Charter right, an infringement that cannot be justified in a free
and democratic society.

Reference re: Secession of Quebec

Facts: 50.4% NO, 49.6% YES 1995 referendum on Quebec sovereignty. Referred to SCC regarding
Issue: (1) Quebec’s ability to secede unilaterally: referendum itself has no legal effect
(2) Quebec’s rights under int’l law to unilaterally secede: Quebec’s people not governed by colonial
empire, subject to alienation/subjugation/exploitation, denied meaningful access to govt.
(3) Quebec’s rights in the event that domestic and int’l law give conflicting opinions on the right to
secede unilaterally: no conflict, void.
Reasoning: 1. Federalism
 “Was the political mechanism by which diversity could be reconciled with unity” (43)
 “Is a political and legal response to underlying social and political realities” (57)
 “Facilitates democratic participation by distributing power to the government thought to be
most suited to achieving the particular societal objective having regard to this diversity” (58)
 “Facilitates the pursuit of collective goals by cultural and linguistic minorities which form
the majority within a particular province” (59)

2. Democracy
 Majoritarianism is not democracy... it must be married with the rule of law
 About institutions, process, and substance
 Para 67: the consent of the governed is a value that is key to the understanding...

3. Constitutionalism & the rule of law

 Constitutionalism – s 52 (supreme law of the land)
 Rule of law: law is supreme over the acts of both government & private persons/one law for
all
 Maintenance of a body of positive law (identifiable rules)
 Exercise of public power must be based in a legal rule. Relationship between the state and
the individual must be regulated by law

4. Respect for minorities: long history that pre-dates the Charter…

Ratio: There is no right of unilateral secession. Must have clear question referendum, after the success of
which, the other provinces are obliged to negotiate terms of separation within constitutional
amending formula.

Royal Proclamation of 1763

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 If the crown hasn’t made a treaty, those territories (in the Indian territory) are reserved for Indians as their
hunting ground (private people cannot buy, only crown can transact for that land).

UNWRITTEN PRINCIPLES
The Judiciary Appointments (s. 96 courts)
 Judges appointed by GG on advice of PM
 PM looks to the Minister of Justice to provide insight on candidates
 Federally appointed, and remuneration delineated in constitution.
 Judicial independence as an unwritten norm, affirmed by the preamble of the Constitution Act, 1867 (const.
similar to that of the UK)

Provincial Judges Reference (1997)

Facts: Cuts to salaries of judges by PEI, MAN, ALTA amalgamated into one case. Case challenged the
powers of the provincial legislatures to do so.
Issue: Do cuts to judicial salaries of provincial judges violate section 11(d) of the Charter, right to be
presumed innocent until proven guilty “in a fair and public hearing by an independent and impartial
tribunal”?
Decision: Yes, and independent compensation commissions are required to help set salaries free of political
manipulation.
Reasoning: Judicial independence is an unwritten constitutional norm:
i. Preamble, Canada should have a “Constitution similar in Principle to that of the
UK”
 Valente v. The Queen set out fundamental requirements of judicial independence (one of
which was financial security)
ii. Growing importance of the court: indep. Salary commissions necessary not just
recommended
iii. Salary commission findings not binding, but strongly persuasive, to override a
change a govt. must show a rational justification
 Wide interpretation of S. 11(d)- innocent until proven guilty necessitates a fair hearing.
 All judges protected under s. 11(d) not just those that deal with criminal law
Ratio: To protect unwritten principle of judicial independence (which includes financial security), must
protect against interferences by other branches of government, so independent bodies should
determine salaries.

Reference Re: Supreme Court Act

Facts: Marc Nadon appointed as puisne justice of the SCC (judge of Federal Court of Appeal for 20 yrs.).
Not a current member of the Quebec bar though, though Parliament had amended SC Act to permit
that.
Issue: Can Parliament unilaterally amend the SC Act? Does a member of the court representing one of
Quebec’s seats on the Court have to be a current member of the bar?
Decision: Justice Nadon cannot be appointed to the SCC. Parliament cannot unilaterally amend the SC Act.
Reasoning: S. 6 impliedly exclude former members of Quebec bar and impose a requirement of current
membership. Conservative change to eligibility in SC Act amounts to changing the composition of
the Court (ultra vires). As per s. 41(d) of 1867 Act, unanimous consent of the provinces and
parliament is needed to change the composition of the Supreme Court.
Ratio: The Supreme Court Act is part of the Canadian Constitution, and any substantive changes to
the composition of the court, including the eligibility criteria, requires a constitutional amendment.

BC v. Imperial Tobacco Canada

Facts: Liability under TDHCCR hinged on population of individuals being exposed to tobacco products
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because manufacturer’s breach of duty wed to British Columbians, and govt. incurring health care
expenditures as a result.
Issue: Does the TDHCCR violate the Constitution on 3 grounds 1) division of powers 2) underlying
principle of judicial independence and 3) the rule of law?
Decision: Act did not violate the principle of judicial independence or the rule of law
Reasoning: Shifting onus of proof doesn’t interfere with independence of judiciary
 Courts must still weigh evidence to determine liability.
Appellant’s conception of rule of law would render many of our written constitutional rights
redundant & undermine them
Democracy and constitutionalism also principles recognized:
 Those principles strongly favour laws which conform to the express terms of the constitution
(found to be in prov. jurisdiction
Ratio: The Healthcare Recovery Act, in its retroactivity and reverse onus, do not offend the rule of law or
judicial independence. The Rule of Law is not a principle that can be used to strike down law.

BC (AG) v. Christie (2007)

Facts: BC Liberals pass bill imposing 7% tax on purchase for legal services in BC. Dugald Christie
(lawyer for low-income people) challenges law
Issue: Does effective access to justice mandate a general right to counsel under the rule of law? Did the
legal services tax violate the principle of the rule of law?
Decision: Legal services tax is permissible.
Reasoning: If underlying principle of ‘rule of law’ included the right of everyone to have counsel then Section
10(b) would be redundant. The right to counsel historically only in criminal matters. Principle of
rule of law can theoretically exist without the general right to counsel. Need for massive legal aid
schemes.
Ratio: There is no constitutional basis under the principle of the Rule of Law for a right to legal
representation (except in the context of s. 10(b) of the Charter –when charged with a criminal
offence)

Trail Lawyers’ Association of BC v. BC (AG) (2014)

Facts: Vilardell asked judge to relieve her from paying the custody-hearing fee. Judge reserved decision
until the end of the trial (so he could address ability to pay). Hearing takes 10 days, $3 600 in fees.
Legal fees deplete her savings, cant pay fee, judge stays obligation to pay.
Issue: Is s.96 infringed by legislation that imposes hearing fees that deny some people access to the courts?
Decision: BC found to be unconstitutional
Reasoning: a. s. 92(14) doesn’t operate in isolation, must be read with… (1) Other grants of power (s. 96-
existence of superior courts) + (2) “assumptions that underlie the text and the manner in
which the constitutional provisions” (Re: Senate Reform) = assumption flows from s. 96:
right to access superior court
b. The principle of the rule of law: “without an accessible public forum for the adjudication of
disputes, the rule of law is threatened” (Combined Air Mechanical Services Inc. v. Flesch)
 Legislation must conform to the express terms of the Constitution & to “requirements ...
that flow by necessary implication from the express terms of the Constitution.”
o s. 92(14) must be exercised in a manner that is consistent with the right of
individuals to bring their cases to the superior courts and have them resolved
there.
Ratio:  Parts of the Constitution do not operate in isolation, and must be read in association with
other grants of power, the assumptions that underlie the text, and the principle of the rule of
law.
 Constitutionality of legislation must be determined through this framework.
 There is an underlying constitutional right, derived from the rule of law and the assumptions
 7
inherent in s. 96, that guarantees access to justice.

Reference Re: meaning of the Word “Persons” (1928)

Issue: Are women “qualified Persons” under s. 24 of BNA, and eligible to serve in the Senate?
Decision: No.
Reasoning: (1) Common law of England (Chorlton v. Lings) women are under legal incapacity to hold office
“referable” to the fact” (2) prior to Confederation, U & L Canada, NS, NB bar women from sitting
in Parliament

Edwards v. Canada (1930)

Facts: JCPC decision on Persons Case
Decision: Women are persons under the BNA Act, 1867
Reasoning: Internal evidence derived from BNA itself: (1) “Person” is ambiguous (2) Some sections of act show
that persons include women (3) some sections use the words “male persons” expressly used only
when desire is to confine the matter to males only.
External evidence: (1) ethical argument around history (2) evolution of terms
Ratio: “BNA Act planted in Canada a living tree capable of growth and expansion within its natural
limits.”

Halpern v. Canada (2001)

Facts: “Couples” apply for civil marriage licenses from Clerk of City of Toronto (applies to court for
directions, holds licenses). MCCT issues marriage certificates to couples- Registrar refuses to accept
documents for registration.
Issue: Does the present common-law definition of marriage a violation of s.15 of the Charter?
Decision:
Reasoning: Modernization of Benefits Obligations Act (2000) “lawful union of one man and one woman to the
exclusion of all others” (thereby prohibiting same-sex couples)
Law v. Canada test for discrimination:
o Drew a formal distinction between claimant & other based on personal
characteristic
o Failed to take into account the claimant’s disadvantaged position treatment
o Promoted view claimant was less worthy of value as a human being
Passes Oakes Test, isn’t saved by s. 1
Ratio: To determine that the right to equality has been infringed upon, it must meet the criterion of the
precedent set in Law v. Canada, and pass the Oakes Test. The present common-law definition of
marriage is unconstitutional. (SCC affirms this through living tree doctrine)

EARLY INERPRETATIONS OF FEDERALISM

Citizens Insurance Co. v. Parsons
Facts: Parsons brought action against two insurers to recover compensation for losses caused by fires in his
hardware store. There were conditions in the policy, which Parsons did not adhere to, so the insurers
wouldn’t pay out. Parsons argues that the conditions did not comply with the legislation so were
void; Insurers argue that the legislation was ultra vires.
Issue: Does legislation in matters of property and civil rights ever meld into the larger scope of federal
power over trade and commerce, and so become invalid?
Decision: Appeal dismissed.
Reasoning: “Regulation of trade and commerce”(s. 91(2)) should not be read literally, if it was
(1) every transaction from federal trade deals to individual contracts could be regulated by federal
govt.
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(2) Quebec’s civil code would become void if 91.2 governed all transactions:
- Therefore, the scheme falls within 92(13) property and civil rights
S. 91(2): int’l and interprovincial trade & “general regulation of trade affecting the whole dominion”
Ratio: Business and contractual issues that take place wholly within the provinces fall under s. 92(13),
while international, interprovincial and general trade and commerce issues fall under s. 91(2).

Temperance
Russell v. the Queen
Facts: Private citizen begins to prosecute tavern owner (Russell) in Fredericton for the sale of liquor in
region, which opted into the federal prohibition scheme.
Russell Canada Temperance Act was ultra vires the federal powers as it fell into:
defense: o Provinces power to legislate on matters related to taverns and saloons (s. 92(9)),
o Property and civil rights (s. 92(13))
o Or matters or a local or private nature (s. 92(16))
Decision/ Matter did not fall within an enumerated heads of power under the authority of the provinces, but it
Reasoning: falls under the residual federal govt. power of POGG, as temperance was seen as a matter of
“national concern”

Hodge v. The Queen

Facts: Hodge challenged Ontario Liquor Licence Act (authority delegated authority to Licence
Commissioners of Toronto to pass a resolution that prohibited the use of billiard tables during any
time when the sale of alcohol was prohibited), convicted
Issue: Was Liquor License Act ultra vires of the province jurisdiction?
Decision: Act was intra vires
Reasoning:
Ratio: (1) Subjects which in one aspect and for one purpose fall w/in s.92, may in another aspect and for
another purpose fall w/n s.91 and still be valid – Double Aspect
(2) “Coordinate Sovereignty”- provinces aren’t acting under any mandate from Imperial Parliament,
have own powers equal in weight to that of the federal Parliament’s powers (can delegate powers
further down if they want)

Local Prohibition Reference 1896

Facts: Local Option Act: creating a provincial scheme allowing municipalities to prohibit (rather than
regulate) retail liquor sale
Issue: Is the LOA ultra vies of the province?
Decision: Ontario statute of 1890 and the 1886 Canada Temperance Act valid.
Reasoning: Ontario statute of 1890 and the 1886 Canada Temperance Act were valid even though they again
purportedly regulated the same matter
1. Authority to prohibit falls under s. 92(13) (property and civil rights) because it “concerns
property in the province which would be the subject matter of the transactions if they were
not prohibited, and also the civil rights of persons within the province.”
2. Duplication between provincial and federal laws is permissible (unless there is a conflict, in
which provincial law must yield to the Dominion legislation (Federal Paramountcy)
Ratio: Narrowed view of POGG from Russell: all matters not enumerated in s 91, ought to be strictly
confined to such matters as are unquestionably of Canadian interest and importance, and out not to
trench upon provincial legislation with respect to any of the classes of subjects enumerated in s 92

Depression Era
Reference Re; Board of Commerce Act/Combines and Fair prices Act 1919
Facts: July 1919 legislation, objective: restrict combines, monopolies, mergers, protecting against hoarding
 9
of “necessaries of life,” for the purpose of increasing prices. Does board have the power to make a
specific order setting profit margins for clothing prices in Ottawa?
Issue: Is legislation that restricts profits ultra vires of the federal government?
Decision: JCPC: situation does not meet the standard of necessity needed to invoke POGG
Ratio: Only under necessity and highly exceptional circumstances can liberty of the provinces be
restricted by the federal govt. POGG requires standard of necessity- “emergency doctrine” to be
used)

S. 132 and powers relating to International Treaties

 “The Parliament and Government of Canada shall have the powers necessary or proper for performing
the obligations of Canada or of any province thereof, as part of the British Empire, towards foreign
countries, arising under treaties between the Empire and such foreign countries.”
o S. 132 is about implementing treaties, not making them
o Power to make int’l treaties is a matter of federal prerogative (federal executive)

Aeronautics Reference (1932)

Facts: Canadian govt. enacts comprehensive legislation regulating aeronautics after post-WWII convention
on aeronautics was made by Britain & ratified by Canada
Issue: Is the subject of aeronautics under s. 91 or s. 92?
Decision: Appeal allowed, govt. legislation constitutional
Reasoning: Dominion Parliament has right and obligation to provide by statute that the terms of the Convention
shall be duly carried out.
Ratio: As aviation was not anticipated at the time of confederation, Aeronautics falls into the POGG power

Radio Reference (1932)

Facts: Dominion govt. enters int’l treaty with US regarding radio. Federal govt. enacted legislation
Issue: Does the federal govt. have the power to regulate radio?
Decision: Yes.
Reasoning: Obligations of treaty necessitate it apply to all dwellers in Canada, as transmitter/receiver
technology is necessarily intra-provincial
Ratio: Authority over radio legislation rests with Parliament under POGG in the context of s. 132, NOT
because the subject matter belonged otherwise in POGG.

AG Canada v. AG Ontario (Labour Conventions) (1937)

Facts: Canada signs treaties that dictate human conditions for workers- conventions within included rules
about hours of work, minimum wage, days of rest. Statutes enacted to implement its treaty
obligations
Issue: Does Parliament have the power to regulate labor because of int’l treaty obligations?
Decision: JCPC- No.
Reasoning: Dominion cannot use s. 132 and make treaties to violate constitutional limits. Federal govt. cannot
implement treaties unilaterally, they can only implement in regards to areas of the treaty that deal
with their jurisdiction, same is the case with the provinces.
Ratio: Parliament doesn’t have the power to regulate labour because of int’l treaty obligations
alone, they would have to prove it was a national emergency to use POGG to do so.
Concept of “Watertight compartments”
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INTERPRETING DIVISION OF POWERS

A. PITH AND SUBSTANCE
Three parts to the analysis:
1. Identification of the “matter” of the statute (purpose [intrinsic/extrinsic materials] and effect [legal/practical])
2. What is the scope of the applicable head of power?
3. Determination of the class into which the challenged statute fails
Even if legislation is valid, it may overlap with another jurisdiction (3 ways)
 1) it has an incidental effect on the other jurisdiction
 2) Both jurisdictions may legislate on matters that have a double aspect (but the aspects must be
significantly different)
 3) A provision of a statute may have a significant intrusion on the other level’s jurisdiction, but where
that intrusion is an ancillary part of legislation that is otherwise valid, it may be permitted.

R. v Morgantaler (1993)
Facts: Nova Scotia Medical Services Act c. 281 & regulation under the Act ND Re. 152/89 make it an
offense to perform an abortion outside of the hospital. Morgantaler performed these in his clinic.
Issue: Is the law in question ultra vires? What is the pith and substance of the law?
Decision: Yes. Pith and substance of the Act is criminal law
Reasoning: 1) What is the “Matter”
o Purpose: MSA designated 9 unrelated services that were banned outside of hospitals,
could’ve prohibited all services if they wanted. Discussion in regards to preventing
privatization of health care (claimed purpose) was absent through the legislative
proceedings. Course of events suggests impetus to put in law was aimed directly at ridding
Morgantaler & proposed clinic
 Effect: terms prohibit abortions in certain circumstances with penal consequences,
o Legal effect of the medical service legislation is completely embraced by s. 251 of
Criminal Code, if 251 not been struck, NS legislation would be found redundant
2) Scope of the Applicable head of power: health –includes operation of hospitals, etc.
3) Where does the matter fit into heads of power? Criminal- includes penalizing for moral purposes
4) Is it ultra vires of province? Yes.
Ratio: Legislation that deals with laws traditionally considered to be a part of criminal law are ultra vires.

Employment insurance Act Reference (2005)

Facts: Parental benefits provisions of federal Employment Insurance Act implement maternity and parental
benefit provisions. Quebec- argues that provisions were directed at supporting families and children
(92.13 Property and Civil Rights &/or 92.16 Merely local and private nature)
Issue: What is the scope of the federal power over unemployment insurance (2A)?
Decision: Federal law is intra vires
Reasoning: “Matter”/essence of s. 91(2A): (1) public insurance program based on concept of social risk
(2) To preserve workers’ economic security (3) ensure reentry into labour market by
(4) Paying temporary income replacement benefits in the event of an interruption of employment

Pith and substance of maternal and parental benefits in EIA is to provide replacement income during
an interruption of work (consistent with essence of s. 2A of 1867 Act)
o Concept of social risk has evolved (Living Tree) so attention must be paid to
pregnancy and the social risk of women’s absence from the work force.
Ratio: Maternal and parental benefits are within s. 91(2A). The “Matter” must be able to fit within the
scope of a head of power. Delineates the scope of the head of power for 91(2A)
 11

B. DOUBLE ASPECT
 Final stage of pith & substance analysis
 Used where P&S of legislation have federal and provincial features that are of roughly equivalent
importance so that neither should be ignored respecting the division of legislative powers. (Multiple
Access)
 Hodge: “Subjects which in one aspect and for one purpose fall within s 92, may in another aspect
and for another purpose fall within s 91.”
 Generally permissible, unless there is a conflict (leads to paramountcy analysis)

Multiple Access v. McCutcheon (1982)

Facts: Ontario Securities Act (1970) prohibited insider trading in shares trading on the TSX. Canada
Corporations Act (1970) has almost identical provisions, applicable to corporations incorporated
under federal law. MAL argues (1) regulation of trading of shares of federally incorporated
companies falls exclusively within POGG & (2) paramountcy, as initiating an action under the
federal statute had already elapsed
Issue: Can duplicate legislation operate at both federal and provincial levels?
Decision: Both statutes applicable on the facts
Reasoning: o There is no simple dichotomy between legislation of a company law (POGG) character and
legislation affecting property and civil rights (92(13)) in the province – the legislation has a
double character.
Ratio: Duplication in provincial and federal legislation is permitted as long as the provisions DO NOT
conflict. (Only one of many possible application of the Double Aspect doctrine.)

C. NECESSARILY INCIDENTAL
 Doctrine used in cases where the provision being challenged is part of a larger scheme of legislation
 If the larger scheme within which the impugned provision is constitutionally valid, impugned provision
may be valid too because of the relationship to the larger scheme
o Depends on the degree of intrusion (serious or minimal) + how well provisions are integrated into
the valid legislative scheme (functionally related or necessarily incidental)

GM v. City National Leasing (1989)

Facts: CNL brings civil action against GM, alleging it suffered losses as a result of a discriminatory pricing
policy that constituted anti-competitive behaviour prohibited by Combines Investigation Act (s.
31.1).
GM- 31.1 beyond federal jurisdiction, creation of civil causes of action falls within provincial
jurisdiction “property and civil rights.”
Issue: What is the process for determining the constitutionality of a provision in a larger piece of
legislation that infringes upon the jurisdiction of another?
Decision: Appeal dismissed –31.1 not ultra vires Parliament, its ancillary to the legislation as a whole
Reasoning: 1) Impugned provision DOES encroach on provincial powers, but not seriously, as it is (1) only a
remedial provision for the purposes of the substantive Act (2) it is limited in scope as it doesn’t
create a general cause of action but is carefully limited and I it is well-established that fed. Govt.
can create civil action where such measures may be shown to be warranted

2) Combines Investigation Act is valid, link between 31.1 an the act is necessarily incidental
(integral and well-conceived component of economic regulation strategy)

Test for whether the legislation falls under the “general branch” of trade and commerce, for
 12
legislation to apply it must (1) be part of a regulatory scheme
(2) Be overseen by a regulatory agency
(3) Be concerned with trade as a whole rather than a particular industry
(4) Be of a nature that the provinces, jointly or severally would be constitutionally capable of
enacting (5) Failure to include one or more provinces or localities in a legislation scheme would
jeopardize the successful operation of t the scheme in other parts of the country
Ratio: Sets out general approach of necessarily incidental doctrine. Combines Investigation Act does not
seriously intrude on 92.13, it is subject to the rational functionality test not the strict necessity test.

Quebec v. Lacombe
Facts: Lacombe has federal license for commercial aerial services. Municipality of Sacre-Coeur obtained
an injunction to stop his operation because it violated the zoning for Gobeil Lake. Bylaw no. 260
adopted following complaints by cottage owners about aviation activity. Lacombe argues the zoning
bylaw was ultra vires.
Issue: Is the bylaw ultra vires?
Decision: Bylaw is ultra vires, should be read down as to not affect the aerodrome landing site
Reasoning: 1) Pith and substance = regulation controls aeronautics (federal power Re: Aeronautics)
2) Not “ancillary” to the exercise of provincial power (rational/functional connection to the purpose
of the legislative scheme needed: the power trenched upon is narrow; a strictly necessary standard
would likely apply.
o Not functionally connected, as there was no purpose for by-law 260 other than prohibition of
certain aeronautical activities in a significant portion of the municipality.
Ratio: Ancillary powers will only save a provision that is, minimally, rationally and functionally
connected to the purpose of that legislative scheme.

D. INTERJURISDICTIONAL IMMUNITY
1. Should IJI apply as a matter of precedent & nature of the power that parties wish to immunize? Ask . . .
A. Is it specific or general head of power? Needs to be specific
B. Can the constitutional issue be resolved on some other basis?
C. Can you define a core of the head of power? Needs to be definable.
2. Does the (provincial) law trench on the protected “core” of a (federal) competence. (COPA/Bell #2)
 Courts will use jurisprudence that has defined what is entailed in the “core” of a federal competence, or
define it themselves if it hasn’t been already.
3. Is the provincial law’s effect on the exercise of the protected federal power sufficiently serious to invoke
IJI?
 Sufficiently serious: causes impairment to the federal law
 Adverse consequences that place the “core” competence in jeopardy (Canadian Western Bank).
If federal head of power is immune from valid provincial legislation, courts “Read down” provincial or
federal statutes to protect the core of the impugned jurisdiction

Bell Canada v. Quebec (Bell #2)

Facts: The case deals with the application to Bell Canada of a Quebec law which gave a right to protective
reassignment to a pregnant worker.
Issue: Do Quebec labour laws apply to a federal undertaking in the province of Quebec?
Decision: Quebec law is ultra vires, and should be read down so as to not apply to federally regulated
undertakings such as Bell Canada.
Reasoning: Bell Canada is a federal undertaking, as s. 91(10(a)) said to include the operation of telephones.
Labour relations and working conditions are at the “core” of federal undertakings. It causes
impairment to the “basic, minimum and unassailable content” at the core of 92.10(a) i.e. the
structure of the organization and the activities that it provides (telephone operations)
 13
Ratio: Lays out test for interjurisdictional immunity, defines what the core is, what is sufficiently serious.

CWB v. Alberta (2007)

Facts: Alberta Insurance Act makes federally chartered banks subject to the provincial licensing over
promotion of insurance products. Banks applied for a declaration that their promotion of certain
products authorized by the federal Bank Act was banking s. 91(15) and that the Insurance Act and its
regulations were inapplicable to banks by IJI, or inoperative due to federal paramountcy.
Issue: Do the federal banks have to follow provincial regulations on insurance, seeing as insurance is not at
the core of banking under the s. 91(15) federal power?
Decision: Insurance is not at the core of the federal banking power.
Reasoning: Banking is a narrow head of power, The core of that banking power is definable, and insurance is
not a part of it. The Alberta law does not trench on the “core.”
Ratio: If a provincial law impacts a federal head of power in a way that is not essential, vital, or at the
“core” of the federal power, then the provincial law may be valid. If it impairs the core, no.

Quebec v. COPA
Facts: Partners constructed an airstrip on a lot owned by them. They registered their airstrip under the
federal Aeronautics Act. The lot where the airstrip sits is within an area designated as an agricultural
region under the province’s Act. S. 26 of the Act prohibit use of lots for any purpose other than
agriculture without authorization from the Commission.
Issue: Does the construction of an aerodrome impair on the core of the federal jurisdiction over
aeronautics?
Decision: Yes, it impairs the core.
Reasoning: (1) Aeronautics is federal (Re Aeronautics) encompasses the power to determine the location of
aerodromes. (Johanesson v. West St. Paul (1951) and that this is at the core. (2) Construction,
demolition, determination of location of aerodromes impairs the core. If doctrine of federal
paramountcy was used, could create rival systems of regulation that would be messy. Provincial
legislation is valid (ss. 92 (13 & 16) but because it impairs federal law, it is inapplicable to the
extent that it prohibits aeronautics
Ratio: Follows test set out in Canadian Western Bank case. “Clear proof of purpose” is required to
successfully invoke federal paramountcy on the basis of frustration of federal purpose

Canada v. PHS Community Services Society

Facts: Insite protected by federal authorities to allow people to use drugs on site without fear of
prosecution. 2008: govt. failed to extend the exemption; Insite came under the threat that it would
have to stop offering services.
Issue: Is Insite exempt from the federal criminal laws that prohibit the possession and trafficking of
controlled substances because Insite is a health facility?
Decision: Insite isn’t exempt from federal criminal laws.
Ratio: IJI doctrine doesn’t extend to provincial health power. The court wasn’t able to delineate the
core of the provincial authority over health services.

Tsilqot’in Nation v. BC (2014)

Facts: Province proposes forestry activities in the Cariboo-Chilcotin region of BC. Tsilqot’in makes a land
title claim for the area.
Issue: Does IJI apply to land held under Aboriginal title?
Decision: No.
Reasoning: Aboriginal rights don’t fall at the core of Aboriginal law for the federal government – they are
simply a limit on Parliamentary jurisdiction.
Ratio: The doctrine of IJI shouldn’t apply in cases where lands are held under Aboriginal title. Infringing
 14
Aboriginal rights must be justified through s. 25 framework to be justified.

E. PARAMOUNTCY
o A narrower principle than IJI in its effect because Paramountcy limits a provincial law’s operability when it
conflicts with a federal law.
o Thus it does not limit provincial jurisdiction in an area; it merely arrests a provision’s operation while the
federal provision subsists.
o Meaning of “conflict” in sense of paramountcy:
o (1) Impossibility of dual compliance: it is impossible for the people who are subject to the federal
and provincial enactments in question to comply with both? (Possible: Rothmans; not possible:
Moloney)
o (2) Duplication: does the prov. leg. duplicate fed. Leg? (Multiple Access)
o (3) Impossibility of giving dual effect: can a judge or other government decision-maker before
whom both enactments are relied upon by contesting parties can give effect to both?
o (4) Frustration of federal purpose: would permitting the provincial enactment to operate in the
circumstances in question frustrate the purpose underlying the federal enactment?
o (5) Federal intention to cover the field: has Parliament, by legislating in a particular area, enacted a
code that was intended to be complete and thus by implication was intended to oust the operation of
any provincial laws?

Ross v. Registrar of Motor Vehicles (1975)

Facts: Ross was convicted of drunk driving. S. 234 & 238.1 Criminal Code: trial judge empowered to
punish with a suspension of up to 3 years. Registrar for Motor Vehicles in Ontario suspended it for 3
months in accordance with s. 21 of the Ontario Highway Traffic Act.
Issue: In the event that both pieces of legislation having been found valid, is there a conflict?
Decision: Both pieces of legislation are valid, and there is no conflict.
Reasoning: S.21 (provincial) takes away the license for a period of 3 months, S.238 (federal) allows for a
proscription of the privilege of driving for a period up to three years. Very strictly speaking, these
are not in conflict. You can comply with a stricter rule, so this does not create an impossibility of
dual compliance.
Ratio: If compliance with both laws is possible (and legislative purpose is not frustrated), then
paramountcy does not apply.

Multiple Access v. McCutcheon (1982)

Issue: Is duplication of laws by province in area of provincial jurisdiction automatically void through the
doctrine of paramountcy?
Decision: No
Reasoning: Paramountcy applies only where there is actual conflict in operation, as where one enactment says
“yes”, the other “no”, or compliance with one is defiance of the other. If federal law struck down,
gap would remain –federally regulated companies could shop jurisdictions.
Ratio: If a province duplicates federal legislation, it can be valid, and operable if it does not conflict (i.e.
create an impossibility of dual compliance) and/or frustrate the federal purpose.

Bank of Montreal v Hall

Facts: Hall defaulted on his loan and BMO, pursuant to the Bank Act; they seized the piece of machinery
& brought action to enforce its real property mortgage loan agreement. Bank didn’t follow
procedures of prov. Limitation of Civil Right Act. (S. 27: judicially monitored seizure needed before
a creditor can repossess the securedarticle). Federal Bank Act: gives a right of immediate seizure, no
notice needed
 15
Issue: Did the provincial Act conflict with the federal Bank Act, triggering paramountcy?
Decision: Provincial Limitation of Civil Rights Act is inoperative.
Reasoning: Pith and substance of the provincial law is that of banking (s. 15 federal power). Provincial law is a
serious encroachment on the banking power, has double aspect to it (s. 91(15) and s. 92(13)). Dual
compliance impossible: application of the provincial statute can fairly be said to frustrate
Parliament’s legislative purpose.
Ratio: Dual compliance is not the only hallmark of inconsistency. Provincial legislation that displaces or
frustrates Parliament’s legislative intent is also inconsistent for the purposes of the paramountcy
analysis.

Rothmans v. Saskatchewan (2005)

Facts: s. 30- Tobacco Act, “subject to regulations, any person may display, at retail, a tobacco product or an
accessory that displays a tobacco product related brand element.” SK Tobacco Control Act bans all
advertising display and promotion of tobacco related product in any premises in which persons
under 18 years of age are permitted.
Issue: Is s. 6 of the Tobacco Control Act inconsistent with s. 30 of the federal Tobacco Act to render it
inoperative?
Decision: No, dual compliance is possible.
Reasoning: They are not inconsistent because of S. 4 and S. 19 of the federal act states the purpose for the
regulations: the health and safety of Canadians, with special regards to minors. A retailer can easily
comply with both s. 30 of the Tobacco Act and S. 6 of the Tobacco Control Act by: admitting no one
under 18 years of age on the premises or by not displaying tobacco or tobacco products.
Ratio:

Alberta (AG) v. Moloney (2015)

Facts: Moloney crashes car while uninsured, violating s. 54 of the Alberta’s Traffic Safety Act. TSA allows
the province to suspend the respondent’s licence and permits until he pays the amount of the
compensation. Alberta compensates individual injured in crash, sough compensated amount from M
(later made assignment in bankruptcy, eventually discharged). BIA governs bankruptcy and provides
that, upon discharge, the respondent is released from all debts that are claims provable in
bankruptcy.
Issue: Is s. 102(2) of Alberta Traffic Safety Act constitutionally inoperative by reason of the doctrine of
federal paramountcy?
Decision: Alberta law is inoperative to the extent that it is used to enforce a debt discharged in
bankruptcy.
Reasoning: (1) One law consequently provides for the release of all claims provable in bankruptcy and prohibits
creditors from enforcing them. (2) The other disregards this release and allows for the use of a debt
enforcement mechanism on such a claim by precisely excluding a discharge in bankruptcy. One
could argue if they decided not to drive then they could comply with both laws at once.
Ratio: Yes, s. 102 of the Alberta Traffic Safety Act is inoperative to the extent that it is used to
enforce a debt discharged in bankruptcy.

SASK v. Lamere Lake Logging (2015)

Facts: Amendments to s. 243 of Bankruptcy and Insolvency Act created a national receivership in 2005. It
allows a receiver to be appointed, so long as 10 days have elapsed since the creditor sent the “notice
of intention.” Saskatchewan Farm Security Act, s. 17. (92 (13)) gave farmers a 150-day “notice of
intention” period before a receiver can be appointed and also required mandatory mediation.
Issue: Is the SFSA inoperative because of the federal power to regulate bankruptcy and insolvency s.
91(21)?
 16
Decision: There is no conflict between the SASK and federal laws.
Reasoning: Purpose of s. 243(1) of BIA determined to be: establishment of a regime allowing for the
appointment of a national receiver, thereby eliminating the need to apply for the appointment of a
receiver in multiple jurisdictions (not timely remedy). 10-day limit waiting period only a guideline,
designed to work in concert with longer provincial waiting periods. S. 243 remedy was
discretionary- court “may” appoint a receiver if it is “just or convenient” to do so. No clear evidence
that the driving purpose of the rule had to do with timeliness (Parliamentary debates, reports, etc.)
Ratio: Absent clear evidence that Parliament intended a broader statutory purpose, courts should avoid an
expansive interpretation of the purpose of federal legislation that will bring it into conflict with
provincial legislation.

PEACE, ORDER, and GOOD GOVERNMENT

“It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of
Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not
coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces”

Gap: Discrete subjects, not mentioned in 91, 92. Limited application: Radio and Aeronautics references
(though national concern justifies both as well).

Emergency: If we only used this branch, it would be extremely narrow. Primarily used in Re Anti-inflation
Act.

National Concern Doctrine: Canada Temperance Federation resurrects it, leaving us with the impression
that we can achieve a great deal under POGG. However, arguments are rarely successful.

Reference Re: Anti-Inflation (1976)

Facts: Legislation was trying to curb economic problems (high rate of inflation and unemployment). It was
only to effect provincial public services if the provinces signed on. Most did.
Issue: (1) Was the Act supportable under the POGG power as emergency or crisis legislation?
(2) Is the existence of an emergency essential to the Act’s validity?
Decision: (1) 7-2 Yes it is supportable under the POGG doctrine as emergency/crisis legislation
(2) 5-4 YES the existence of an emergency is essential to the Act’s validity
Reasoning: Laskin admits that it may affect business and deal with property and civil rights, but its pith and
substance is emergency:
 Derived from the preamble: talks about seriousness of economic situation
 Extrinsic evidence corroborating economic problem
Temporary nature of the legislation
Beetz: P&S is in 92(13). If nat’l concern doctrine applied, it is permanently in federal jurisdiction.
Inflation isn’t a ‘new issue’ so it cannot be a part of POGG through un-enumerated powers.
Ratio: High inflation and unemployment, as well as a sunset clause, make something valid emergency
POGG legislation – there only needs to be the perception or apprehension of a crisis.

R v. Crown Zellerbach (1988)

Facts: Section 4(1) of the Ocean Dumping Control Act prohibits dumping of certain things at sea, does not
include fresh water such as lakes. CZ dumping into internal waters of BC –license didn’t cover this
kind of dumping though.
Issue: Does federal legislative jurisdiction to regulate the dumping of substances at sea, as a measure for
the prevention of marine pollution, extend to the regulation of dumping in provincial marine waters?
Decision: Appeal allowed.
 17
Reasoning:  Interprovincial Co-Operatives v. the Queen (1976)- Parliament has jurisdiction to regulate
the dumping in provincial waters of substances that can be shown to cause pollution in extra-
provincial waters
 Act as a whole is directed at the control or regulation of marine pollution
 “Marine pollution, because of its predominantly extra-provincial as well as international
character and implications, is clearly a matter of concern to Canada as a whole”
 Pollution by the dumping of substances in other waters is a single, indivisible matter
Ratio: National Concern POGG test 

(1) Nat’l concern doctrine applies to

(a) New matters which did not exist at Confederation &
(b) Matters which, originally of a local and private nature in a province have (without nat’l emergency)
become matters of nat’l concern.

(2) To be a matter of nat’l concern, must have

(a) A singleness,
(b) Distinctiveness, and
(c) Indivisibility that clearly distinguishes it from matters of provincial concern &
(d) Scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of
legislative power under the Constitution

(3) To help determine 2A, ask: If the province could not deal effectively with the control/regulation of
the aspects within their jurisdiction, what would the extra-provincial effects be?
 If there is a provincial inability to regulate, this may be taken into account to determine an area’s
singleness.
 If a nat’l dimension is found, and there is a gap between 91 and 92, then the federal govt. can fill the
gap (but no more than is necessary)

Friends of Old Man River v. Canada

Facts: Alta. argues fed. environmental assessment did not apply to dam being built in Oldman – it was a
provincial undertaking.
Issue: Do the federal guidelines give the government of Canada general authority over environment in
manners that interfere with provincial legislature?
Decision: Yes, if the project impinges on an area of federal jurisdiction.
Reasoning: No national dimension, therefore no national concern doctrine. Federal participation required for
local projects if project impinges on an area of federal jurisdiction.
Ratio: The federal government can intervene in provincial projects if they impinge in federal residual
POGG power (i.e. marine pollution, oceans) but NOT necessarily for all environmental issues.

ECONOMIC REGULATION POWER

Two Branches of Trade and Commerce (Citizens Insurance)
1. Federal power over interprovincial export/trade
2. Federal general trade power

INTER-PROV./INT’L TRADE
King v. Easter Terminal Elevator (1925)
Facts: One purpose of wheat marketing board was to facilitate commercial transactions. Section 95.7 was
added that forced the elevators to remit most of the surplus proceeds to the Board for administrative
costs. ETE claimed that the new section was ultra vires the feds
 18
Issue: Is the s. 95(7) of the Canada Grain Act ultra vires?
Decision: Yes, it is directed at regulating profits.
Ratio: If a product is used primarily for export that does not mean Parliament can regulate matters of a
merely local nature. If a single province cannot adequately regulate the product on their own is not
enough (by itself) to regulate matters of a merely local nature.

Carnation v. Quebec Agricultural Marketing Board (1968)

Facts: Marketing board created as a corporation by Quebec Act. Carnation claims that the Board set a price
for a product that will be exported, and that they shouldn’t be allowed to.
Issue: Had the marketing board regulated federally, so ultra vires?
Decision: Appeal dismissed.
Reasoning: P&S of this legislation was determined to be regulation of standards and process of manufacturing
of milk products within the province (to address dairy industry in QUE); the extra-provincial effect
was incidental.
Ratio: Legislation only affected extra-provincial T&C incidentally. The province can and should regulate
T&C within the province. P&S of legislation? Property and civil rights

AG MB v. MAN Egg and Poultry Association (1971)

Facts: ONT & QUE fixed prices of eggs and chickens in their provinces to protect their own producers.
MB says that marketing boards then gave undue preference to products from within their provinces
 adverse effects on MB farmers. MB then enacts identical price fixing legislation.
Issue: Is price fixing to the detriment of importers of a good that is both locally produced and imported
ultra vires a province?
Decision: Yes.
Reasoning: P&S was to restrict free flow of trade between provinces  invasion of fed. jurisdiction 91(2).
Distinguished from Carnation, trying to control imports, not just promoting their own farmers’
welfare
Ratio: The province does NOT have the power to enact legislation that is aimed at regulating inter-
provincial trade and commerce – a province cannot control production outside its borders.

Agricultural Products Marketing Act (1978)

Reasoning: The approval that was given to the operation of federal-provincial schemes has also been called
the cooperative federalism approach.
Ratio: Regulation of “production” is prima facie intra vires. If you can identify the pith and substance as
production= provincial. If marketing, then it may or may not be valid.
 Level of cooperation between provincial and federal governments so upheld federal laws

Klassen v. The Queen (1960)

Facts: Prosecution under Canadian Wheat Board Act – s.16(1) prohibited delivery of grain to a grain
elevator unless done by its producer, and only a certain quantity (fails to record some deliveries).
Issue: Was s.45 of the Canadian Wheat Act ultra vires fed jurisdiction in regards to feed mills?
Decision: No.
Reasoning: Wholly intra-provincial production and sale via elevator upheld as valid federal legislation via
ancillary analysis. Necessarily incidental to Wheat Board regime regarding to extra-provincial/int’l
trade.
Ratio: Elevators declared national under 92(10)(c)

Labatt Breweries v Canada (AG) (1980)

Facts: Federal Food and Drugs Act regulated the content of a variety of food and drug product, including
 19
the minimum and maximum amounts of alcohol permissible for ‘light beer.’ Labatt violated these
content regulations.
Issue: Were minimum and maximum alcohol content regulations for light beer valid under 91(2)?
Decision: No.
Reasoning: Impugned provision was concerned with production and local sale of beer. The regulation’s P&S
was not aimed at int’l trade or interprovincial trade
Ratio: Regulation of a single trade/industry (light beer) is not of great national concern and national
ownership of a trade or undertaking or national advertising of products is not sufficient to authorize
the imposition of federal trade and commerce legislation. National labeling is possible under trade
and commerce.

GENERAL T&C
GM v City National Leasing (1989)
Facts: Is s. 31.1 of the Combines Investigation Act sufficiently integrated into the rest of the otherwise
valid act? P&S to determine needed. Impugned section creates civil cause of action for infractions
(generally belongs to the provinces). CNL alleges preferential pricing for others- GM says 31.1 ultra
vires.
Issue: What’s the extent of the T&C power and how/when should provinces have exclusive rights over
92(13)
Decision: Federal govt. may prescribe civil causes of action to enforce an otherwise valid regulatory scheme.
Reasoning: It is part of the general regulatory scheme, which is continually overseen by director. It concerns
trade as a whole (fairness of practices across trades nationally). If not national, inconsistency across
provinces would result. Overriding consideration: whether “what is being addressed in a federal
enactment is genuinely a national economic concern and not just a collection of local ones.”
Ratio: See test 

Test for validity under the General Trade Power (preliminary checklist, don't need to satisfy all 5)
1. Impugned legislation must be part of a general regulatory scheme

2. Scheme must be monitored by the continuing oversight of a regulatory agency

3. Legislation must be concerned with trade as a whole rather than with a particular industry.

4. The legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable
of enacting. "Competition cannot be regulated effectively unless it is regulated nationally"

5. The failure to include one or more provinces or localities in a legislative scheme would jeopardize the
successful operation of the scheme in other parts of the country.

Re: Securities Act (2011)

Facts: Post- 2008 Financial Crisis, federal govt. wants to create national securities regulator (some
provinces agree, some do not). Argument of fed: securities transcend borders, issue of national
importance. Arguments of provinces opposed: P&CR (personal property), licensing regimes.
Issue: Was the securities act within the legislative authority of Canada?
Decision: No.
Reasoning: P&S of the provision “is the effective regulation of domestic securities, a task that has long been
recognized to fall within provincial authority.” Already existing provincial schemes basically being
duplicated. Effect of the legislation is to displace provincial schemes
Ratio: Mere fact that the provinces have enacted securities regulation does not necessarily preclude federal
securities regulation. Fails GM test on #3
 20
FEDERAL CRIMINAL LAW POWER
Margarine Reference (1949)
Facts: Section of Dairy Industry Act prohibits manufacture, sale, or import of margarine.
Issue: Is the section ultra vires the federal govt.?
Decision: Prohibitions on manufacture and sale are ultra vires (92.13) but barring importation intra vires on
power over general trade
Reasoning: P&S is protection of dairy industry, and public interest as a whole, its intrusion is too great into
property and civil rights
Ratio: Test for permissible criminal legislation:
(1) Purpose: a valid criminal purpose (addressing a public evil): peace, order, morality, health,
security
(2) Form: prohibition + penalty

RJR MacDonald v Canada (1995)

Facts: Federal government banned tobacco advertising and required health warning labels for cigarette
packages.
Issue: Was legislation valid under federal criminal law power 91.27?
Decision: Yes.
Reasoning: . Amorphous nature of health means both can legislate on it
. Parl. Purpose to prohibit: 1) ads of tobacco products 2) promotion of such 3) ads without
health warnings & penal sanctions under s. 18
. P&S: reduce tobacco consumption & protect public health (public health evil fits Margarine)
not pricing or labour relations for example
. Long established principle that exceptions may exist in criminal law
Ratio: Parliament can criminalize something that is regulatory in nature if there is a clear criminal purpose.

R v Hydro Quebec (1997)

Facts: HQ charged with violating an interim order from the federal Minister of the Environment restricting
emissions. Cabinet could add substances that were deemed to be toxic to list in existing legislation.
Issue: Were ss. 34 and 25 of CEPA ultra vires the Federal Government?
Decision: Ss. 34 and 25 are valid provisions.
Reasoning: 1. Purpose: Fit as part of crim. law health purpose? Environmental protection as a valid criminal law
purpose (All agree)
2. Form: La Forest- P&S prohibitory (discretion/process about how to get to whether substance is
“toxic,” and then absolutely prohibited) satisfies criminal law requirements, should be adaptable to
subject matter
DISSENT: P&S regulatory, as s. 11 allows Minister to change what is “toxic”- no codification.
Ratio: Protection of the environment from harm is recognized as a valid criminal law purpose. Schemes
that allow for changes to be made, for instance by the minister, as to the subject matter of the
regulation/prohibition are OK.

Reference Re: Firearms Act

Facts: Required gun owners to have them registered and to obtain licences for them. Criminal law purpose
is that of public safety. Challenge- whether it is prohibitory?
Issue: Is licensing regime contrary to the prohibitory requirement legislation to be part of the criminal law
power?
Decision: Firearms Act was constitutionally valid under federal criminal law power
Reasoning: P&S was public safety. Moral danger if guns were used irresponsibly (morality part of criminal law
as per Margarine Reference. History of firearms as federally regulated.
Ratio: Licensing schemes are permissible, if they prohibit something in the end.
 21

 Remedies that are ancillary to criminal prohibitions have also been upheld under the 91.27 power.
 Sentencing (and functional parts) a part of criminal power (Zelensky)
 Provisions intended to protect society by preventing further dangerous conduct may be permissible (Swain)

PROVINCIAL CRIMINAL LAW

“The guiding principle is that the provinces may not invade the criminal field by attempting to stiffen, supplement
or replace the criminal law... or to fill perceived defects or gaps therein” (Morgentaler - CCL at 221)
. But there are plenty of ways around this because of all of the double aspects to matters which fall into the
criminal law power
. Civil consequences can be added to criminal matters, etc. (Ross v Registrar of Motor Vehicles)
. In Switzmen v Elbling, we see an implied bill of rights, and the criminal power is a limit on provincial
authority. In the criminal law, there is more procedure around how the state investigates. Whereas in a
regulatory regime, individuals have less protection.
• So by saying things were ultra vires the provinces, and placing them in the criminal law, the rights of the people
were being protected by the federal state's due process

Nova Scotia Board of Censors v McNeil (1978)

Facts: Provincial legislation was enacted, setting up a system for licensing and regulating the showing of
films. Required all films to go to censor boards prior to their exhibition (unfettered power to accept
or reject it. Sanctions were monetary and revocation of license.
Issue: By giving the board the right to prohibit showing of certain films, is this intruded on the federal
criminal law power?
Decision: No, law is valid
Reasoning: The province here was merely exercising a preventative power; there is no penalty. Rejection of film
based on local property interests. This is specifically directed to property and civil rights. Describing
revocation of a license as punitive doesn’t change that.
Ratio: Revocation of a license is taking away a privilege, is regulatory in nature, not criminal

Westendorp v. The Queen (1983)

Facts: Calgary passed a municipal bylaw 6.1 prohibiting prostitution under the guise of anti-nuisance.
Fines and terms of imprisonment up to 60 days in the by-law.
Issue: Is the law ultra vires, impinging on 91.27? Yes.
Reasoning: The P&S of the legislation was really to prohibit prostitution, making it only colourably about
nuisance. Provinces can create offences but they have to be in relation to a matter that is within
provincial jurisdiction. Penalty disproportionate, stiffer than federal one.
Ratio: Provinces have the power to prevent crime provided that they are doing so through a head of power
that is within their jurisdiction. The purpose of the legislation CANNOT be criminal
 22

Ontario AG v. Chatterjee (2009)

Facts: Civil Remedies Act added a consequence that may occur under the Criminal Code: forfeiture of
proceeds of crime. Meant to deter crime, compensate victims. Laws related to seizure of property
acquired by criminal means. Challenged on constitutional grounds. Province argued that they should
be able to recuperate costs since they are responsible for enforcing criminal law.
Issue: Is the CRA ultra vires of the province?
Decision: CRA is within province’s jurisdiction.
Reasoning: P&S: administration of criminal justice within the province, deterring crime. Created a property-
based (anchored) authority to recoup costs, incidental effect on criminal head of power. SCC found
significant double aspect here. No operational conflict between CRA and Criminal Code.
Ratio: Deterrence of crime is a valid objective found within the jurisdictions of the provinces.

Goodwin v BC (2015)
Facts: Automatic Roadside Prohibition (ARP) allows police officers to seize your vehicle at roadside for
90 days upon a fail reading of the breathalyzer, or 3-30 days upon a warn reading. No laying of
criminal charges.
Issue: Is the ARP a valid exercise of provincial power under 92.13?
Decision: Yes.
Reasoning: P&S- prevent serious injury/death on public roads by removing drunk drivers. Main purpose is to
regulate highway, roadway safety and driver licensing, which is based in 92.13 (PSR)
Ratio: A provision may take away privileges and impose penalties as still not be considered within the
criminal law power. Neither purpose not effect is determinative of the P&S of a matter.

Re: Assisted Human Reproduction Act (2010)

Facts: Act regulates new technologies with respect to reproductive health issues, as well as research
involving human genetics.
Issue: Is legislating over morality acceptable under the criminal law power, even if there is no moral
consensus?
Decision:

Reasoning P&S Matter- Prevention of negative practices (related to criminal law purposes of health, morality,
: security) associated with assisted human reproduction.
Ratio: The form of criminal law provisions no longer requires the absence of a regulatory scheme as long
as it has a valid criminal law purpose.

AG Quebec v AG Canada
Facts: Valid federal criminal law is repealed. QUE wanted to create its own registry  requested data not
be destroyed (contrary to s. 29 of Act). QC argues that this part of the act is ultra vires, and argues
this on the grounds of cooperative federalism.
Issue: Is s. 29 of the Ending the Long-gun Registry Act ultra vires?
Decision: No.
Reasoning: P&S of s. 29 the same for the entire Act. Passing of the Act was within criminal power. Data
collected was collected for the purpose (administration) of the criminal provision.
 23
Ratio: Cooperative federalism (network of relationships between executives of fed. & prov. govt. for
mechanisms of continual redistribution of power w/o courts/ const. amendment) is not part of P&S
analysis, therefore, not grounds for determining which head of power a matter falls into.

ABORIGINAL RIGHTS
A. BACKGROUND
“Laws” existed before contact
Indigenous law existed prior to European contact and colonization. There were customs, traditions, and procedures that
determined the regulation of how land was accessed. There were customs and agreements for access to resources like
hunting and fishing grounds as well. These are the equivalent of the Eurocentric view of what they call “law.”
Indigenous law did not disappear through discovery, occupation, or conquering. Title to Aboriginal land can be alienable
only to the Crown, which may use it only in the interests of the Aboriginals.

Definition of “Indian” has shifted

Who has been considered “Indian” under the law has varied over time. Prior to 1982, s. 91(24) of the Constitution Act,
1867 was the main authority through which Indian policy was made. It conferred on Parliament the authority to pass
laws in relation to "Indians, and Lands reserved for the Indians." In 1939, the Reference Re: Eskimos established that the
Inuit were “Indians” under s. 91(24). In 2016, Daniels v. Canada established that Métis and non-status Indians were
“Indians” within the scope of section 91(24) as well. In Daniels, the court used historical evidence, the case AG Canada
v. Canard and various reports. Above all, s. 35[2] of the Constitution Act, 1982 states “Indian, Inuit, and Métis peoples
are Aboriginal peoples for the purposes of the Constitution.”

The Indian Act is presumed to define individuals (status Indians) and communities (status Indian Act bands/First
Nations) for constitutional purposes. The Indian Act has a history of gender discrimination, as women who married non-
Indian men lost their status. Bands are only recognized through a Eurocentric view of governing, and many bands have
been left out of treaties or not recognized at all.

Treaties
Canada has different colonial eras, through which the state viewed indigenous slightly differently, though in a
consistently subservient manner. The 16th to 19th century is considered the “recognition” era, where the Royal
Proclamation treated indigenous folks as political entities. The late 18 th to early 20th century is considered the
“civilization” period, where the state viewed indigenous peoples as wards of the state, who could become white through
programs like the Residential schools. The mid-20th century onwards is considered the “assimilation” era, where the
state viewed indigenous peoples as formal equals who should not be given ‘special rights’ like the 1969 White Paper.
After s. 35 in 1982, the state has viewed indigenous peoples as citizens with additional rights.

The treaty process is ongoing, not a relic of history. The earliest agreements (17 th/mid-18th) were fur trade “commercial
compacts,” many of which were finalized through traditional indigenous practices. There is debate as to whether these
should be regarded as treaties and binding. In this same time period, “peace and friendship” treaties were signed in
eastern Canada. However, the British were trying to secure their place as chief colonizers, and in many of the treaties
title has not been extinguished. After 1763, land cessions were made (one-time payment for parcels on land) with
indigenous peoples. Questions about whether treaty-makers followed the correct procedures, or took into account
indigenous perspectives about what signing the contract meant still arise. The numbered treaties from the mid-19 th-early
20th century represented colonial mandates, and not every nation in each treaty region agreed to the treaties. Metis treaty
claims were settled through the use of scrip, a certificate that was exchanged for a purchase of land.

B. ABORIGINAL RIGHTS

R v Sparrow
Facts: Sparrow (Aboriginal) used too long of a net to fish, was fishing out of Musqueam reserve. Charged
with an offence under the Indian Food Fishing Act. Sparrow argues that it was unconstitutional to charge
him because of the rights granted to indigenous peoples under s. 35 of the Constitution Act, 1982.
Decision: Sparrow was exercising an "inherent" Aboriginal right that existed before the provincial
 24
legislation and that was guaranteed and protected by section 35 of the Constitution Act, 1982
Ratio: Sparrow Test for determining an Aboriginal right, and how they can be infringed. (See below)
***ONUS ON CLAIMANT***
 25
1. What is the nature of the right? Can the right be established under the appropriate test?
 (A) Distinguished between Food, Social and Ceremonial (FSC) rights and Trade/Commercial
 (B) Treaty rights (Historic; Modern)
 (C) Aboriginal rights
o i. Activity/harvesting: VDP & Sappier/Gray cultural rights
o ii. Self-government
o iii. Title (property)
 Burden of proof on Aboriginal group asserting the right
 Should be interpreted in a “liberal” “purposive”

2. Did the right exist at 1982? (Was it extinguished pre-1982?)

 a. If the government is extinguishing a right, the “intention must be clear and plain if is to extinguish an
aboriginal right”
 Extinguishment test: “the Sovereign’s intention must be clear and plain if it is to extinguish an
aboriginal right” –Crown’s burden of proof

3. Have the rights been infringed upon and if so, is the infringement justified?
 Because of fiduciary duty, any regulation that infringes or denies aboriginal rights must be justified by
the government


Sparrow Test for Infringement and Justification:

1. Is there a prima facie infringement of s 35(1)? To determine, look at:
 (A) Is the limitation unreasonable?
 (B) Does the regulation impose undue hardship?
 (C) Does the regulation deny the holders of the right to use their preferred means of exercising the
right? (Issue in Sparrow)
***Onus*** of proving a prima facie infringement lies on the individual or group challenging the
legislation.

***ONUS ON CROWN***
2. Is there justification for the infringement? To determine, look at:
 (B) Is there a valid legislative objective? (Consider underlying objective of the legislation or
regulation)
o Was the objective “compelling and substantial”? (More narrow than Oakes test for Charter)
 Be suspicious of the objective (look for shifts in objective); look at underlying objective
o Examples of “compelling and substantial objectives”: conservation and resource management;
prevention of exercises of Aboriginal rights that would harm people
o “Public interest” justified is too broad

 (C) Has the honour of the Crown been upheld? I.e. did the government keep their trust relationship
with the FN people? And uphold their responsibility to consider Aboriginal interests?)
1. Special trust/fiduciary relationship?
2. Fulfilled duty to consult?
3. Must be in line with allocation of priority
a. 1: conservation; 2: Aboriginal fishing rights for FSC purposes; 3: commercial/sports
fishing
b. issues arise with run sixe forecasting, priority in time
4. As little infringement as possible?
5. If there is expropriation, has there been compensation?
 26

R v van der Peet (1996)

Facts: Van der Peet sells fish caught under the authority of her Indian food fish license, but statute dictated
that one cannot sell any fish that is caught under that authority
Issue: Are the restrictions imposed by s. 27(5) of the Regulations infringe her existing aboriginal right to
sell fish and are therefore invalid on the basis that they violate s. 35(1) of the Constitution Act,
1982?
Decision: VDP loses.
Reasoning: Exchange of fish for money or other goods did not constitute a practice, custom or tradition that was
integral to Sto:lo culture.
Ratio: VDP test for Aboriginal Rights (below)

An activity must be an element of a practice, custom or tradition integral to the distinctive culture of
the aboriginal group claiming the right

 1) Have to look at the scope and content of Aboriginal rights

o Look at where the tradition occurred and the purpose behind doing it (to sell, to eat, etc.)

 2) Have to look for continuity in proof of practices, customs, traditions

o Unbroken chain of continuity is not needed, if the practice existed prior to contact, and
continued after some sort of interruption this is permissible
o Court must recognize the evidentiary difficulties present (no written record, banning of certain
practices)

 3) Must be “integral to a distinctive society” Must be more than an aspect of, or took place in, the
aboriginal society
o It must be of “independent significance” to the culture in which it exists- cannot be ancillary to
another practice, must itself be of integral significance to the aboriginal society
o It must be distinctive, but not distinct (it can be the same as the practices of other indigenous
nations/groups)- one of the things that truly made the society what it was
 European arrival and influence cannot be used to deprive an aboriginal group of an
otherwise valid claim to aboriginal right
o Ask: without this practice/custom/tradition, would the culture in question be fundamentally
altered or other than what it is?

Lamere’s approach in VDP has been criticized as a “frozen rights” approach, which does not allow for
changes in indigenous culture over the centuries. John Burrows criticizes this framework, saying that
Lamer’s views indigenous peoples through a retrospective lens, “It is about what was, 'once upon a time,'
central to the survival of a community, not necessarily about what is central, significant, and distinctive to
the survival of these communities today. His test has the potential to reinforce troubling stereotypes about
Indians.” He sees their rights as derived from inhabiting the land prior to Europeans, not because they were
nations. This is evident from the language that he uses, which emphasizes “aboriginal people,” not nations or
polities.

R v Gladstone (1996)
Facts: Gladstone charged under Fisheries Act with offering to sell herring spawn on kelp caught
under authority of and Indian fishing license (permitted 500 lb., sold 4200 lb.)
Issue: (1) Do the appellants have an aboriginal right to fish?
(2) If so, does the right extend to commercial exploitation?
(3) If so, is the Crown justified in restricting the right using regulation?
 27
Decision:
Reasoning:  Sparrow #1: Lamer CJ characterizes the right as a right to exchange herring spawn on kelp for
money or other goods. Claimants provided clear evidence that their community partook in the
trade of herring spawn on kelp before European contact. The trade was not incidental to the
social and ceremonial activities of the community, but a central and significant part of the
Heiltsuk culture.
 Sparrow #2: right is not extinguished; the nature of the regulations, which permit trading to a
certain extent, clearly do not show a "clear and plain" intention to extinguish the right entirely.
 Sparrow #3: factors used to Sparrow only factors to help the search
Justification of Infringement:
 The government must demonstrate that: (1) it was acting pursuant to a valid legislative
objective; and (2) its actions were consistent with its fiduciary duty towards aboriginal peoples.
 Where the aboriginal right is internally limited (not an unlimited commercial right) so that it is
clear when that right has been satisfied and other users can be allowed to participate in the
fishery, the notion of priority, as articulated in Sparrow, makes sense.
 Where the aboriginal right has no internal limitation (like a commercial right), the doctrine of
priority requires that the government demonstrate that it has taken the existence of aboriginal
rights into account in allocating the resource and allocated the resource in a manner respectful
of the fact that those rights have priority over the exploitation of the fishery by other users.
 For commercial purposes, “substantial and compelling” objectives Can include
Pursuit of economic and regional fairness
Recognition of the historic reliance upon (and participation in) the fishery of non-Aboriginal
groups
Ratio: Adds a commercial context to the justification of infringement in Sparrow.

“In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the
reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful
attainment”
 Sees recognition of Aboriginal rights as more of a give and take than an accommodation by govt. to allow
indigenous peoples to exist as they once were.

R v Sappier; R v Gray (2006)

Facts:
Issue: Do the Mi’kmaq and Maliseet peoples in NB possess an Aboriginal right to harvest timber on
Crown lands for personal use?
Decision: No. They have a narrower right though.
Reasoning:  Characterization of ‘harvesting timber for personal uses’ is too general. Mi’kmaq a transitory
people –their right should be characterized as the harvesting of wood for certain uses that are
directly associated with that particular way of life i.e. for shelter, transportation, tools and fuel 
right to harvest wood for domestic purposes.
 Discard the idea that the practice must go to the core of a people’s culture. The fact that
harvesting wood for domestic uses was undertaken for survival purposes is sufficient...to meet
the integral to a distinctive culture threshold.
Ratio:  Focus of SCC should be on nature of prior occupation. “Culture” really an inquiry into the
pre-contact way of life of a particular aboriginal community, including means of survival, their
socialization methods, their legal systems, and potentially, their trading habits.
 Court must seek to understand how the particular pre-contact practices relied upon relates to
that way of life

Lax Kw’alaams Indian Band v Canada (2011)

 28
Facts:
Issue: Does LK have an Aboriginal right to commercial harvesting and sale of “all species of fish” within
their traditional waters?
Decision: LK characterization of right too broad
Reasoning:  LK argument: “sporadic trade in ... fish products was ... part of their ancestral “way of life”
and, on that account, they should be allowed to continue to engage in trade in fish generally
under the protection of s. 35(1).
 Rearticulates VDP test: Reference in Sappier to a pre-contact “way of life” should not be
read as departing from the “distinctive culture” test set out in Van der Peet”
 (1) The existence of the pre-contact evidence does not support “trade in any other Fish
Resource or Product beside eulachon grease”  could not be described as integral to their
distinctive culture
 Sporadic trade as took place in other fish products was peripheral to the pre-contact society
and did not define what made Coast Tsimshian society what it was.
Ratio: Judges do have discretion to re-characterize the right being claimed. Evolution of the subject matter
less permissible than an evolution of methods

Ahousaht Indian band v. Canada (AG) (2011)

Facts: Band contends that the vast web of laws, regulations and policies, as a whole, “prevents them from
exercising their aboriginal rights by their preferred means.”
Issue: Do the NCN have a broad right to fish and sell fish?
Decision: Yes.
Reasoning: Based on evidence that “at the time of contact, groups comprising ancestors of the NCN fished
extensively and used the resources harvested both for food and for trade, regularly exchanging
substantial quantities of fisheries resources with other groups for economic purposes”
Ratio: A broad right to sell fish can be found, given the right evidence.

C. INTERPRETATION OF TREATIES
Grassy Narrows First Nation v Ontario
Facts: Treaty 3 of 1873 between the Ojibway and the Dominion of Canada  Ojibway yielded
ownership of their territory (except for certain reserve lands), receiving in return the right to harvest
the non-reserve lands surrendered by them until such time as that land was “taken up” for
settlement, mining, lumbe etc. by the Dominion of Canada. Appellants challenged a forestry license
issued by the Province of Ontario that authorized forestry operations in the Keewatin area
Issue: Can Ontario can “take up” lands in the Keewatin area under Treaty 3 so as to limit the
harvesting rights under the treaty, or whether it needs federal authorization to do so?
Decision: Ontario has the authority to take up lands in the Keewatin area so as to limit the harvesting rights set
out in Treaty 3. By virtue of ss. 109, 92A, and 92(5) of the Constitution Act, 1867 provided it does
so in a manner that respects the requirements set out in Mikisew.
Reasoning:  Once the Keewatin lands came within Ontario’s borders in 1912, s. 109 of the Constitution
Act, 1867 became applicable.
 Treaty 3 was not an agreement between the government of Canada and the Ojibway people,
but the “Indians and the Crown”
 When a government – be it the federal or a provincial government – exercises Crown power,
the exercise of that power is burdened by the Crown obligations toward the Aboriginal people
in question.
Ratio: “Taking up” of land under a treaty may involve the duty to consult; see Mikisew Cree First Nation v.
Canada (Minister of Canadian Heritage), 2005 SCC and Beckman v. Little Salmon/Carmacks First
Nation, 2010 SCC. Example of Marshall principles not being taken into account (large, liberal??)
 29
R v Badger
Reasoning:  A treaty represents an exchange of solemn promises between the Crown and the various
Indian nations. It is always assumed that the Crown intends to fulfil its promises.
 Any ambiguities or doubtful expressions in the wording of the treaty or document must be
resolved in favour of the Indians, and any limitations, which restrict the rights of Indians under
treaties, must be narrowly construed.
 Onus of proving that a treaty or Aboriginal right has been extinguished is on the Crown
“strict proof of extinguishment” and evidence of a clear and plain intention on the part of the
govt. to extinguish the treaty
Ratio:

R v Marshall (2005)
Facts: Marshall, Mi’kmaq citizen, charges with selling eels without a license. Defense was that he could
sell eels by virtue of a treaty right agreed to by the British Crown in 1760. Trade clause within the
treaty of Peace and Friendship to not “traffick, barter, or Exchange any Commodities in any manner
but with such persons or the managers of such Truck houses (type of trading post) as shall be
appointed or Established by His Majesty’s Governor at Lunenbourg or elsewhere in Nova Scotia”
Issue: Did Marshall have an existing treaty tight exempting him from compliance with the federal
legislation?
Decision: Marshall has a right to fish for a moderate livelihood.
Reasoning:  Words in isolation do not support the appellant’s argument. “The starting point for the
analysis of the alleged treaty right must be an examination of the specific words used in any
written memorandum of its terms”- Binney.
 Extrinsic evidence of the historical and cultural context of a treaty may be received even
absent any ambiguity on the face of the treaty, and should be used to aid interpretation
(Taylor and Williams). Cannot ignore oral terms when the Crown transcribed it.
 Must take into account “The Honour of the Crown” –the Court’s obligation is to “choose
from among the various possible interpretations of the common intention [at the time the
treaty was made] the one which best reconciles” the Mi’kmaq interests and those of the
British Crown.”
McLachlin (dissent): truck house clause ceased being a source of rights when the truck house
system ceased being in existence
Ratio: (1) use of extrinsic evidence clarified; ambiguity in the text not required
(2) Restatement/confirmation of treaty interpretation principles

D. INFRINGEMENT & JUSTIFICATION

Tsilqhot’in Nation v BC (2014)
Facts: BC Liberals granting timber rights to third parties on T’s land.
Issue: Was there an infringement by the BC govt. surrounding the granting of timber licenses in the
unceded territory of the T? How serious was it if there was? Was the duty to consult proportionally
fulfilled?
Decision: In this case, province’s argument for economic benefits of logging and preventing spread of pine
beetle not supported by the evidence. Granting rights to third parties to harvest timber on Tsilhqot’in
land is a serious infringement that will not lightly be justified.
Reasoning: To justify overriding the Aboriginal title-holding group’s wishes on the basis of the broader
public good, the government must show:
(1) That it discharged its procedural duty to consult and accommodate (put first, as its own
component)
o (1) Crown has real or constructive knowledge of the potential or actual existence of
Aboriginal title & (2) contemplates conduct that might adversely affect it  Crown obliged
 30
to consult with the group asserting Aboriginal title.
o Level of consultation/accommodation: proportionate to (1) strength of the claim
(therefore highest where title is established) and (2) seriousness of adverse impact the
contemplated governmental action would have on the claimed right.
o Unproven title = Crown owes procedural duty imposed by the honour of the Crown
to consult and, if appropriate, accommodate unproven Aboriginal interest.
(2) That its actions were backed by a compelling and substantial objective
o Must be considered from the Aboriginal perspective as well as from the perspective
of the broader public
o Broader public goal asserted by the government must further the goal of
reconciliation
o Lamer- Delgamuukw, gives possible examples of C&S objectives: development of
agriculture, forestry, mining, and hydroelectric power, the general economic development of
the interior of British Columbia, protection of the environment or endangered species, the
building of infrastructure and the settlement of foreign populations to support those aims
(3) That the governmental action is consistent with the Crown’s fiduciary obligation (specific
instance in title, different meaning when in regards to broader “Honour of he Crown”) to the group:
o Government must act in a way that respects the fact that Aboriginal title is a group
interest that inheres in present and future generations
o Incursions on Aboriginal title cannot be justified if they would substantially
deprive future generations of the benefit of the land
o Incursion must be necessary to achieve the government’s goal (rational connection)
+ Govt. goes no further than necessary to achieve goal (minimal impairment)
+ Benefits expected to flow from that goal are not outweighed by adverse effects on
Aboriginal interest (proportionality of impact).
Ratio: Further delineates the justification of infringement test from Sparrow.

Beckman v LSCFN (2010)

Facts: 1997: LFSCN secured access to Crown lands (traditional lands of the LFSCN had been surrendered
and classified as Crown land) for subsistence hunting and fishing activities. 2004: Yukon govt.
transfers 65 hectares of said land to non-native Paulson. Land also being used by FN trapper and
children.
Issue: What are the Crown’s obligations to the First Nation when Crown land was transferred to a non-
Native individual for their use?
Decision: Given that the duty to consult was at the “lower end of the spectrum,” as the infringement was low,
consultation was found to have been adequate. The LSCFN had been given notice and an
opportunity to state its concerns.
Reasoning:  Yukon govt.: Treaty was a “complete code” and that no consultation was required unless a
duty to consult was specifically included in the terms of the Treaty.
 Court: Duty to consult found, exists outside the treaty, part of the Crown’s ongoing
constitutional duty to FNs.
 “In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the
resolution of claims and the implementation of treaties, the Crown must act honourably”
(Haida Nation)
Ratio: Consultation can be shaped by agreement of the parties, but the Crown cannot contract out of its
duty of honourable dealing with Aboriginal people. It applies independently of the expressed or
implied intention of the parties.

E. METIS RIGHTS
Manitoba Metis Federation v Canada (2013)
Facts: MMF seeking a declaration that Canada breached its obligation to implement the promises it made
 31
to the Métis people in the Manitoba Act.
Issue: (1) In implementing the Manitoba Act, did the federal Crown breached fiduciary obligations owed
to the Métis? (2) Did the federal Crown fail to implement the Manitoba Act in a manner consistent
with the honour of the Crown?
Decision: Implementation was ineffectual and inequitable. This was not a matter of occasional
negligence, but of repeated mistakes and inaction that persisted for more than a decade.
Reasoning:  Broad purpose of s. 31 of the Manitoba Act  reconcile Métis community with sovereignty
of the Crown & permit creation of Manitoba.
 S. 31 constituted a constitutional obligation to Metis people, to provide Metis children with
land, giving a head start over expected influx of settlers.
 S. 31 did not impose a fiduciary duty on govt. but engaged the honour of the Crown  govt.
must act with diligence and pursuit of the fulfillment of the promise
 MA was intended to create legal obligations of the highest order: no greater solemnity than
inclusion in the Constitution of Canada
 By (1) delaying distribution of the s. 31 lands (2) distributing lands via random selection (3)
failing to ensure s. 31 grant recipients were not taken advantage of by land speculators (4)
not giving some children direct grants of land, Canada did not fulfill the honour of the
Crown.
Ratio: One source for honour of the Crown anchored in the Royal Proclamation. Honour of the Crown
summarized as having given rise to the following obligations: fiduciary duty, duty to consult &
accommodate, treaty making and implementation (honorable negotiation)

R v Powley (2003)
Facts: Steve and Roddy Powley charges with unlawfully hunting moose and knowingly possessing game
hunted in contravention of the Game and Fish Act
Issue: Do Metis have an Aboriginal right to hunt for food in Sault Ste. Marie area under s. 35 without
justified infringement?
Decision: Powley has a right to hunt for food in the SSM area.
Reasoning: 1. The characterization of the right claimed (eg: was it hunting for food?),
 The right to hunt for food in the environs of Sault Ste. Marie
2. Identification of the historic rights-bearing community
3. Identification of the contemporary rights-bearing community
4. Verification of the claimant’s membership in the relevant contemporary community
 (1) Self-identification- claims should not be of recent vintage, claims made belatedly in
order to benefit from a s. 35 right wont satisfy this requirement
 (2) Must present evidence of ancestral connection to a historic Metis community, no
blood quantum, and some proof that the claimant’s ancestors belonged to the historic
Metis community by birth, adoption, or other means.
o The community: “a group of Metis with a distinctive collective identity, living
together in the same geographic area and sharing a common way of life”
 (3) Acceptance by the modern community whose continuity with the historic
community provides the legal foundation for the right being claimed
o Membership in Metis political organization may be relevant
o Core: past and ongoing participation in a shared culture, in the customs/traditions
that constitute a Metis community’s identity and distinguish it from other groups
5. Identification of the relevant time frame (post-contract, pre-control)
 Focus should be on the period after a particular Metis community arose and before it
came under the effective control of European laws and customs (e.g. govt., police
control, etc.
6. Determination of whether the practice is integral to the Claimant’s distinctive
 32
culture
7. Establishment of continuity between the historic practice and the contemporary
right asserted
8. Whether the right was extinguished or not (applies equally to Metis and First Nations)
9. Whether the right was infringed upon
10. If the right was infringed, can that infringement can be justified
Ratio: Formulation of the Powley test to determine Metis rights. Illustrates the tension over definitions.
Court contending that a “community” must be living in the same geographic area is highly
contested, clashes with the view of the Metis Nation, which views Metis as anyone being from the
Northwest (anywhere where there was fur trade)

Who are the Metis? “It refers to distinctive peoples who, in addition to their mixed ancestry, developed
their own customs, way of life, and recognizable group identity separate from their Indian or Inuit and
European forebears…we should not be surprised to find that different groups of Metis exhibit their own
distinctive traits and traditions. This diversity among groups of Metis may enable us to speak of Metis people”

Daniels v Canada (2016)

Facts:
Issue: Are Metis people “Indians” under s. 91(24) of the Constitution?
Decision: Yes.
Reasoning:  Métis were considered “Indians” for pre-Confederation treaties such as Robinson Treaties of
1850
 Many Métis were also sent to Indian Residential Schools, another exercise of federal
authority over “Indians”
 Federal government amended the Indian Act in 1894: broadened ban on sale of intoxicating
liquor to Indians or any person “who follows the Indian mode of life”, which included Métis.
 Manitoba Metis Federation- stated that the Métis of the Red River Settlement are a “distinct
community”
 s. 35[2] of the Constitution Act, 1982 states that Indian, Inuit, and Métis peoples are
Aboriginal peoples for the purposes of the Constitution.
Ratio: Metis and non-status Indians are “Indians” for the purposes of s. 91(24).

F. SELF-GOVERNMENT
R v Pamajewon (1996)
Facts: P and accomplice are members of Shawanaga First Nation. Convicted of keeping a common gaming
house under s. 201 of Criminal Code. Activities were conducted on reserve with some non-Native
participants. Claim right under s. 35(1) and as a right incident to that of self-government.
Issue: S characterization: Does the First Nation have the right to govern their own lands?
Decision: Appeal dismissed.
Reasoning: Characterized right: s. 35(1) recognizes and affirms the rights of the Shawanaga and Eagle Lake
First Nations to participate in, and to regulate, gambling activities on their respective reserve lands.
Gambling not of central significance to the Ojibwa culture, no evidence of large scales or regulation
either.
Ratio: It appears self-government must be an integral part of the First Nation’s culture to be recognized.
(Though the Indian Act still dictates the methods through which they govern).

Right to Self-Government:
 33
Self-government might receive protection through s. 35 of the Constitution Act, 1982 in at least 5 ways. (1) The
first is as a cultural practice, as determined through the framework of the Van der Peet test (Pamajewon).

(2) The second is as an incident of collective title to land, given that it entails the need to make decisions or laws
about access to and use of land and resources (Delgamuukw and Tsilhqot’in). What constituted “occupation” under
the rules of the Tsilhqot’in people/nation was central to proving that they historically and presently occupied the
land. It is possible to argue that, in accepting this evidence as proof of title, the Supreme Court implicitly affirmed
that Indigenous legal traditions give rise to enforceable obligations within Canadian law.

(3) The third is as a treaty right –through the signing of either modern or historic treaties.

(4) The fourth is as a freestanding right, through UNDRIP. Self-governance as the residual sovereignty that was
retained by FNs after European colonization (e.g. domestic dependent nations’ as in the US)

(5) The fifth is as a delegated right

Routes to Obtain the Right to Self-Government

FNs have a few routes through which they can pursue self-government. The first is through the court system. They
can argue that they have an inherent right to self-government through their traditional indigenous laws, through s.
35 of the Constitution Act, 1982 or through international law that recognizes the right of self-determination.

The second method is through statute, or delegated public authority. FNs can govern through the Indian Act, or the
FN Land Management Act.

The third method is through negotiation, which is then implemented through statute. The Federal Self-
Government Policy, 1995 & Comprehensive Claims Policy are frameworks through which negotiations have
occurred –this has become the primary route to recognition.

The Nisga’a Final Agreement in 2000 settled a land claim, and gave jurisdiction to Nisga’a over a wide range of
areas, including culture, language, employment, public works, land use, and marriage. The Nisga'a government
also provides health, child welfare, and education services. The Treaty also provides that the Nisga'a Lisims
Government may decide to establish a Nisga'a Court, but the provincial cabinet must approve the structure and
procedure of such. Campbell v BC (2000) challenged the NFA on division of powers grounds but did not succeed.
In Chief Mountain, 2013, the BCCA ruled that Canada and the provinces can delegate elements of their
constitutional powers to a First Nation through treaty as long as the governments oversee how these powers are
used.

How were right characterized (framework for how to characterize)

(1) Aboriginal group claims a right to (2) activity/action +(3) thing FOR (4) purpose + (5) location/scale
Heiltsuk Band (R v Gladstone) Harvest & sell Herring Money or On a commercial
(Successful) spawn on other goods scale.
kelp
Musqueam (R v Sparrow) Catch Fish Food, social,
(Successful) ceremonial
Dorothy Van der Peet/Sto:lo FN Exchange Fish Money or
(Unsuccessful) other goods
Lax Kwa’laams FN Harvest All species of Selling on a Within their
(Unsuccessful, successful only for fish commercial traditional
eulochan grease) scale territory
Mi’kmaq (R v Sappier/Gray) Harvest Wood Uses
(Successful after re-characterization by the directly
court) associated
 34
with their
way of life
(fuel, tools,
transport)
Steve Powley (Metis) Hunt Moose Food Environs of SSM,
(Successful) ONT.
(1) Ahousaht First Nation Harvest All species of Money or Within their
fish other goods territories or
portions thereof
(2) Ahousaht First Nation Harvest All species of Selling On a commercial
(Successful) fish those fish scale
resources
(3) Ahousaht First Nation Harvest All species of Sustaining
fish their
communitie
s
Shawanaga & Eagle Lake FN Participate/ High-stakes On the reserve
(R v Pamajewon) (Unsuccessful) Regulate gambling
activities

CHARTER OF RIGHTS AND FREEDOMS

Origins: Prior to the Charter, rights were protected through what is known as common law constitutionalism. The
rule of law was used to protect minority rights (Roncarelli). Federalism was used to invalidate rights violations.
Statutes like the Canadian Bill of Rights and human rights legislation in certain provinces was used. Appeals to
international law were sometimes used as well.

Weinrib contends that the Charter offers better protection of minority interests and groups, while also improving
public debate through deliberation in the courts and legislatures. Andrew Petter argues that the Charter entrenches
classical liberal values, which do not ameliorate historical inequities, or combat the main enemies of the freedom –
not wealth disparities or concentrations of private power, but the state. The courts that interpret rights are liberal,
and elitist (rather than the more representative legislative realm), and only those from that same class can afford to
bring forward challenges. Progress the result of democratic process which had displaced the common law, rather
than through the judiciary.
 35

The original section 1 of the Charter stated that the rights set out are only limited to “such reasonable limits as are
generally accepted with a parliamentary system of government,” emphasizing support for parliamentary
sovereignty. The current section 1 sets out that right are limited “only to such reasonable limits prescribed by law
as can be demonstrably justified in a free and democratic society,” emphasizing support for constitutional
supremacy.

The Charter Dialogue Theory is put forth Hogg and Bushnell. It is the idea that legislatures and the judiciary
engage in a back and forth dialogue of what rights are. The dialogue is anchored in s. 1, s. 52, and s. 33. The
legislature can pass a law, and the judiciary can use section 1 to invalidate the legislation, or restrict it (saying that
the law does not satisfy the least restrictive means test). In the vast majority of cases where the SCC has struck
down a law, the legislature responded with new legislation. Another form of dialogue is through s. 52, where the
court can give remedies that require the legislature to draft legislation that is constitutionally valid after having
overturned it. Through s. 33, the legislature can invoke the notwithstanding clause, allowing laws that the court has
found are contrary to s. 2 or 7-15 for a 5 year period, after which it needs to be invoked once again.

Where Does the Charter Apply?

s. 32(1) of the Charter states that the Charter applies:
(a) To the Parliament and government of Canada in respect of all matters within the authority of
Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) To the legislature and government of each province in respect of all matters within the authority of
the legislature of each province.
The definition of what constitutes “the government,” versus a private entity is contentious though. Eldridge sets
out two routes to deciding what is a government entity. The first are actions that are of a governmental “nature,”
like the actions of a municipality (Godbout v Longueuil), to which the Charter applies. In Douglas College, the
court decided that colleges are governmental in nature. Indicators that an action is of a governmental “nature”
include: statutes that a body is an agent of government, and or significant government oversight or control of
activities.

When private entities (such as hospitals and universities) are implementing a specific government policy or
program, the Charter will apply. The investigation focuses on the nature of the activity rather than the entity, as
“one must scrutinize the quality of the act at issue, rather than the quality of the actor.” The purpose of this is to
ensure that governments “not be allowed to evade their constitutional responsibilities by delegating the
implementation of their policies and programs to private entities.” (Eldridge).

BCCLA v UVIC
Facts: Use of outdoor space prohibited for pro-life group because the UVSS said it had engaged in the
harassment of students. The outdoor activity proceeded despite the cancellation of approval. UVIC
then suspends YPY’s booking privileges for one year.
Issue: Are the acts of the University governmental action? Are these actions inconsistent with the rights
and freedoms guaranteed by the Charter?
Decision:  References to government in s. 32 “could not be interpreted as bringing within the ambit
of the Charter the whole of that amorphous entity which in contemporary political
theory might be thought of as ‘the state’” (Stoffman, La Forest)
Reasoning: BCCLA argument: under Eldridge v. British Columbia (Attorney General) (1997) certain aspects of
the University’s decisions can be subject to Charter challenges. The Policy involved an exercise of
statutorily-conferred regulatory power inseparable from the University’s core role: delivering
publicly-funded post-secondary education. Charter should apply to the impugned decisions because
a decision-maker charged with the regulation of the affairs of a public body has used its statutory
authority to regulate the lives of its members.
 36
Ratio:

Dolphin Delivery

Hill v Church of Scientology

Facts: Hill sues Church for libel. Church previously pursued him for criminal contempt, didn't respect
court order.
Issue: Is the common law crime of libel inconsistent with freedom of speech under the Charter?
Decision: Crime of libel not inconsistent with freedom of speech under the Charter
Reasoning: Charter values should be weighed against the principles that underlie the common law, Charter
values then provide the guidelines for any modifications to the common law which the court feels is
necessary. Onus on party who is alleging that the common law is inconsistent with the Charter to
prove that, when these values are balanced, the common law should be modified, and that the
provisions aren’t justified either.

RWDSU Local 558 v Pepsi-Cola (2002)

Facts: Common law ruling regarding secondary picketing (picketing away from location of work, to places
including retail outlets that sold products)
Issue: Does the common law surrounding secondary picketing contrary to the Charter?
Decision: Yes.
Reasoning: “The Charter must thus be viewed as one of the guiding instruments in the development of Canadian
law.” Adopt “wrongful action” model, secondary picketing as lawful unless it involves harmful
conduct that amounts to a tort or a crime.

Territorial Limits on Application of the Charter

 General rule: Charter does not apply outside Canada
 Cook- Charter applies extra-territorially where:
o 1) Actor is within s. 32 (based on nationality)
o 2) Application of Charter standards do not conflict/interfere with concurrent territorial
jurisdiction of foreign state
 R v Hape (2007): comity cannot be invoked to allow Canadian authorities to participate in activities
that violate Canada’s international obligations. Charter can apply to the activities of Canadian officers
in foreign investigations where the host state consents
 Canada v Khadr (2008)- court orders disclosure of records of the interviews in the possession of the
Crown. CSIS interviews constituted a clear violation of fundamental human rights protected by
international law (citing Rasul v Bush, 2004)
 Amnesty Int’l v Canada (2008)- court rules that Charter does not apply to Afghan detainees held by
Canadian Forces in Afghanistan. Even though s. 7 says “everyone” all circumstances in a given
situation must be examined before it can be said that the Charter applies

REMEDIES
After a law has been found to be unconstitutional, the court will give a remedy. The constitutional authorities for
remedies are in three provisions. The first is in s. 24(1), which provides that “Anyone whose rights or freedoms, as
guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain
such remedy as the court considers appropriate and just in the circumstances.” This gives judges a wide
discretionary power.

The second is in s. 24(2), which provides for exclusion of evidence obtained in violation of Charter rights.
 37
The third is in s. 52(1): “…any law that is inconsistent with the provisions of the Constitution is, to the extent of
the inconsistency, of no force or effect.” The process of selecting a remedy is set out in Schachter. (1) The first
step in choosing a remedial course under s. 52 is defining the extent of the inconsistency that must be struck down.
(2) The second step is whether that inconsistency may be dealt with by way of severance, reading in, or reading
down.

The twin guiding principles for determining whether reading in or severance is appropriate is: (A) respect for the
role of the legislature and (B) the purposes of the Charter. Here, the objective of the legislation in question
must be questioned, so the subsequent remedy does not intrude too far into the legislative realm. One must also
consider additional criteria, including: remedial precision (court should not be reading in if it’s going to take a
complicated formula to read it), interference with legislative objectives (if it is consistent with the legislative
objective (Vriend) or if it would substantially change the cost or nature of the legislative scheme (Schachter), the
effect of the remedy on remaining portion of legislation (M v H- impact would be too large to read in = suspended
validity), budgetary implications, and effects on the thrust of the legislation.

Knodel deals with legislation that is under-inclusive. The court states that if the group to be added is smaller than
the group originally benefitted (extending benefits to same-sex couples instead of striking down entire benefits
scheme for spousal benefits) it is assumed legislature would have enacted the benefit.
When the group being added is larger (Schachter), this assumption is not safe, as it may run contrary to the
original thrust of the program.

(3) The third step from Schachter to determining a remedy is to decide whether the declaration of invalidity
of that portion should be temporarily suspended. When striking down a provision threatens the rule of law
(Reference re Manitoba Language Rights), or poses a potential danger to the public (Swain), or where legislation is
under-inclusive, the most appropriate remedy would be a temporary suspension of invalidity, to allow for
legislatures to decide how to amend the impugned law.

Schachter v Canada
Facts: No ability to claim paternity benefits under Unemployment Insurance Act at the time. For adoptive
parents, they could divide the 15 weeks however they chose. Does it violate s. 15 of the Charter?
Issue: What is the appropriate remedy? Should male parents be read in?
Decision: Legislation is under-inclusive.
Reasoning: Shouldn't be struck down, as would deprive every eligible person of benefit. Declaration of
invalidity at the least. No mandate based on a clear legislative objective, so reading in is imprudent.
Size of group = large intrusion  significant intrusion into legislative domain
Ratio: Sets out three part framework in determining a remedy

Vriend v Alberta (1998)

Facts: Vriend fired from Catholic high school because he was gay.
Issue: What should the remedy be?
Decision: Reading in protections for LGBT people into the provincial human rights legislation.
Reasoning: Purpose of IRPA from the Court: recognition and protection of an inherent dignity and inalienable
rights of Albertans through the elimination of discriminatory practices. Remedy of reading in
would minimize interference with this legitimate purpose and thereby avoid excessive intrusion
into the legislative sphere VS striking down, which would deprive all Albertans of human rights
protection, unduly interfering the scheme enacted by the legislature. Group to be added was
smaller than those already benefitted by IRPA
Importance One of the few cases where SCC extended constitutionality under-inclusive legislation in reading
: in rather than striking down.

M v H (1999)
 38
Facts: Exclusion of same-sex couples from the definition of “spouse” in s. 29 of the Ontario FLA
(including sexual orientation)
Issue: Is the exclusion an unjustifiable infringement of s. 15 of the Charter? Remedy?
Decision: Yes, unjustifiable infringement. S. 29 alone of no force or effect suspended for 6 months
Reasoning: On remedy, distinguished from Vriend- strikes down the law, subject to a six-month delayed
declaration of invalidity (not reading in). Definition of spouse is used elsewhere in FLA, would have
repercussions under other sections, and cannot assume legislature would have written it into those
places as well.

R v Oakes
Facts: s. 8 of Narcotic Control Act created rebuttable presumption that once the fact of possession of a
narcotic had been proven, intention to traffic would be inferred unless the accused est. the absence
of such an intention
Issue: Did section S. 8 of NCA violate s. 11(d) of the Charter? Does s. 1 apply?
Decision: Yes.
Reasoning: Purposes of s. 1 (a) guarantees rights and freedoms set out in the provisions which follow and (b)
justificatory criteria against which limitations on those rights and freedoms. Onus of proving that a
limit on a right or freedom guarantees by the Charter is reasonable and demonstrably justified in a
free and democratic society rests upon the party seeking to uphold the limitation. Pressing and
substantial + rational connection + minimal impairment
Ratio: Sets out test for justification of infringement of a right

1. The objectives of the impugned measures must be “pressing and substantial”

a. In Big M Drug Mart, the Court ruled that an objective to violate a right cannot be the pith and
substance of the law. The objective of the law is defined at the time of drafting; it cannot shift over
time. Fiscal constraint is generally not a pressing and substantial objective, but can be in “the periodic
occurrence of financial emergencies” (Nfld. V NAPE)
2. The means chosen to accomplish the objective must be proportional, which requires:
 a) “Rational connection” between the measures adopted and the objectives;
 b) “Minimal impairment” – that the measures impair the right or freedom in question as little as
possible;
 c) That the “deleterious effects” on the individuals or groups whose rights are limited must be
proportional to the objective and to the “salutary effects” of the measures (“final balance”) (as refined
in Dagenais).

FREEDOM OF RELIGION
2. Everyone has the following fundamental freedoms:
(a) Freedom of conscience and religion

ALTA v Hutterian Brethren of Wilson County

Facts: Law passed, requires photo to be put on ID. Hutterites object on religious grounds to having picture
taken.
Issue: Is the universal photo requirement contrary to s. 2(a) of the Charter?
Decision: Yes.
Reasoning: 1) Is the purpose of the statute pressing and substantial? Objective – “to prevent identity theft
and fraud…harmonization of international and interprovincial standards of photo identification” and
larger goal of ensuring integrity of the system for licensing drivers. YES.
2) Is the limit rationally connected to the purpose? Universal photo requirement is rationally
connected to goal of protecting integrity of the driver’s license system, preventing identity theft
3) Does the limit minimally impair the right? I.e. Are there less harmful means of achieving the
 39
legislative goal? It falls within a range of reasonable options available to address the goal of
preserving the integrity of the driver’s licensing system
4) Is the law proportionate in its effect? Is the limit on the right proportionate in effect to the
public benefit conferred by the limit? Salutary effects: enhancing security in system, assisting in
roadside safety and ID, eventual harmonization of scheme with those in other jurisdiction
Deleterious effects: Legislature’s goal not to be lightly sacrificed. Costs of money/inconvenience as
price of maintaining the religious practice of not submitting to photos doesn't deprive members of
their ability to live in accordance with their religious beliefs.
Emphasis: More on the pressing and substantial objective (deference to legislature), balancing of
positive and negative effects –deferential approach

Dissent: facial recognition technology not foolproof. No evidence that photo exemption is place for
29 years prior caused harm at all to the integrity of the licensing system. Adding 250 to list of 700
000 Albertans that don't hold a license is hard to see a difference being made. Effects aren’t
minimal; they result in a loss of independence.
Emphasis: (Abella)- minimal impairment, requiring evidence to justify the infringement Sees case
as involving state coercion, therefore not suitable for deferential approach to Oakes.
Ratio: Reiterates 2-part test for when 2(a) has been violated.

Syndicat Northcrest v Amselem

Facts: Condo association refuses to permit Orthodox Jew unit owners from contracting succahs on their
balconies as part of the Jewish celebration of Succot. Principles applicable in cases where an
individual alleges that his or her freedom of religion is infringed under the Quebec Charter are also
applicable to a claim under s. 2(a) of the Canadian Charter
Issue: (1) Whether the clauses in the by-laws of the declaration of co-ownership (containing
provisions against construction of dwellings) violation of freedom of religion under the Quebec
Charter?
(2) Did they waive their rights of freedom of religion?
(3) Is the refusal of setting up a succah justified under co-owners’ rights to enjoy property
under s. 6 of the Charter (QUE)?
Decision: Violation occurred, not justified.
Reasoning: First stage of a religious freedom analysis, an individual advancing an issue premised upon a
freedom of religion claim must show the court that 
 1) He or she has a practice or belief, having a nexus with religion, which calls for a particular line
of conduct, either by being objectively or subjectively obligatory or customary, or by, in general,
subjectively engendering a personal connection with the divine or with the subject or object of an
individual’s spiritual faith, irrespective of whether a particular practice or belief is required by
official religious dogma or is in conformity with the position of religious officials; and
 (2) He or she is sincere in his or her belief.  Only then will freedom of religion be triggered.
Ratio: 2A test. Definition of religion: “In essence, religion is about freely and deeply held personal
convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-
definition and spiritual fulfilment, the practices of which allow individuals to foster a connection
with the divine or with the subject or object of that spiritual faith.”

TWU v BCCT (2001)

Facts: BCCT (body which considers applications if a university wants to establish a new program
(teacher’s training in this case) appoints a program approval team to assess TWU’s application.
Council rejects application, approval not in the public interest because of discriminatory practices of
the institution.
Issue: (1) Are the internal documents of TWU illustrative of discriminatory practices?
(2) Are those discriminatory practices sufficient to establish a risk of discrimination
 40
sufficient to justify that graduates of TWU should not be admitted to teach in the public schools?
Decision: BCSC: not within BCCT’s jurisdiction to consider whether the institution followed discriminatory
practices, and no discrimination was occurring.
BCCA: overturns decision, had jurisdiction, discrimination not justified
SCC: within jurisdiction, discrimination unjustified.
Reasoning: BCCT has jurisdiction to consider discriminatory practices in TWU application. General purpose of
the statute- to ensure that “the fulfillment of public functions is undertaken in a manner that does not
undermine public trust and confidence” (Ross v NB School District 15). Schools need to educate in
an environment free of bias, prejudice, and intolerance. HRA of BC, s. 41- recognizes that a
religious institution is not considered to breach the Act where it prefers adherents of its religious
constituency. BC legislature did not consider that training with a Christian philosophy was in itself
against the public interest since it passed 5 bills in favour of TWU 1969-1985. Difference between
holding a belief and acting on it (no evidence they have acted in discriminatory way to students)

“Freedom to hold beliefs is broader than the freedom to act on them” –they do not see the signing of
the covenant as necessarily leading to discriminatory action.

H-DUBE Dissent: teachers perform both counseling as well as an educative function and a
concern that the absence of supportive classroom environment would mean that LGBTQ students
would be forced to remain invisible and reluctant to approach teachers. Action as proactive.
Ratio:

Ross: anti-Semitic remarks outside of classroom (published writings & appearances on TV alleging int’l
Jewish conspiracy). School board dismisses him from teaching. No evidence his statements affected his
teaching. (La forest) Rational connection: it was reasonable to anticipate a causal relationship between
Ross’s conduct and the environment at the school. Permanent speech ban rejected, reassignment upheld.

Kempling v BCCT: teacher writes to newspaper his views of homosexuality, stating that he was a teacher
and his views would govern his actions as a teacher (dismissal upheld)

Reference re: Section 293 of the Criminal Code of Canada, 2011: Ban was justified, said the judge,
because Parliament had “a very strong basis for a reasoned apprehension of harm to many in our society
inherent in the practice of polygamy”, including harm to the women and children in polygamous families,
and to the institution of monogamous marriage”.

Re Marriage Commissioners Appointed Under The Marriage Act, 2011

 The Saskatchewan Court of Appeal was asked for its opinion on the constitutionality of a legislative
proposal that would permit provincially appointed civil marriage commissioners to refuse on religious
grounds to perform same-sex marriage ceremonies. The court found that this arrangement would
violate the section 15 equality rights of gays and lesbians and could not be justified under section 1
 Protection of commissioners’ religious freedom represented a substantial and compelling purpose,
sufficient to justify the restriction of a Charter right. The proposed restriction on the rights of gay and
lesbian couples failed both the minimal impairment and proportionality components of the Oakes test.

S.L. v Commission Scolaire Des Chenes

Facts: 2005 introducing the mandatory ERC (Ethics and Religious Culture) course, the objective of which
was to provide instruction about ethics and world religions. The appellants sincerely believe that
they have an obligation to pass on the precepts of the Catholic religion to their children. Respondent
Commission scolaire des Chênes (“school board”) did not exempt their children from the ERC
course.
Issue: Is the mandatory ERC course an infringement to their freedom of conscience and religion,
 41
which is protected by s. 2(a) of the Canadian Charter of Rights and Freedoms?
Decision: Appeal dismissed.
Reasoning: Appellants had to show that, from an objective standpoint, the ERC Program interfered with their
ability to pass their faith on to their children. Learning about different beliefs on an equal plane did
not interfere with this. The freedom of religion asserted by the appellants is their own freedom, not
that of the children. Ministère’s formal purpose (fostering tolerance, etc.) thus does not appear to
have been to transmit a philosophy based on relativism or to influence young people’s specific
beliefs.
Ratio: No right to be protected from a belief.

Loyola High School v Quebec

Facts: There was an exemption that schools could apply to have their own program certified to replace the
ERC program if it was equivalent (Catholic school wants exemption). Argument: Loyola did not
object to teaching other religions in a neutral and objective manner, but that it should be allowed to
teach Catholic doctrine and ethics, as well as the ethical perspectives of other traditions, from a
Catholic perspective.
Issue: By failing to grant exemption to allow them to teach their own program (teaching from a
Catholic perspective rather than a neutral perspective) – is the Minister breaching freedom of
religion?
Decision: Minister’s decision to deny the exemption was unreasonable and the decision was remitted
Reasoning: Abella; the ministerial decision did not strike a proportionate balance between the Charter
(majority) protections and the legislative objectives
o 1) Avoided the issue of whether corporations could claim a right of freedom of
religion under the Charter
o 2) Minister’s decision preventing Loyola from teaching Catholicism from a Catholic
perspective did not strike an appropriate balance between Charter protections and statutory
objectives. Minister could reasonably require Loyola to teach the ethics of other religions from
a neutral perspective
o 3) Remedy: set aside the decision to deny the exemption as unreasonable and
remitted the matter back to the Minister for reconsideration. State has a legitimate interest in
ensuring that students in all schools are capable, as adults, of conducting themselves with
openness and respect as they confront cultural and religious differences
Concur. Considered through the lens of s. 1 of the Charter and the Oakes test. Minister’s decision breached
Opinion the appellants’ religious freedom under s. 2(a) of the Charter, and that the breach was not justified
under s. 1.
o 1) Loyola, as religious institution, could claim the protection of guarantee of freedom
of religion under s. 2(a) of the Charter.
o 2) Loyola could not be expected to teach religious doctrines or ethics that were
contrary to the Catholic faith in a way that portrayed them as equally credible or worthy of
belief.
o 3) Remedy: would have crafted a remedy under s. 24(1) of the Charter ordering the
Minister to grant Loyola’s application for an exemption.
Saying the “only a cultural and non-denominational approach could serve as equivalent... effectively
negated the flexible approach contemplated by the legislative and regulatory scheme, and set a
standard that would tolerate no more than a minimal deviation from the generic ERC Program.”

EQUALITY RIGHTS
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15. (1) Every individual is equal before and under the law and has the right to the equal protection and
equal benefit of the law without discrimination and, in particular, without discrimination based on race, national
or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of
conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national
or ethnic origin, colour, religion, sex, age or mental or physical disability.

Andrews v Law Society of BC

Facts: Non-citizens could not become part of BC Law Society
Issue: Was the policy of the Law Society a violation of s. 15(1) of the Charter?
Decision: Yes.
Reasoning: Says s. 15 is about “substantive equality” – not “formal equality.” In order to find discrimination, we
do not need to find an intent to discriminate (discrimination can result from adverse effects of not
intentionally discriminatory legislation). Introduces analogous grounds. Non-citizens: Relative lack
of political power, vulnerable to having their interests overlooked; “discrete and insular minorities”
Ratio: Formulates a three-part test: 1) Was there differential treatment? 2) On the basis of an enumerated or
analogous ground? 3) Has it had the effect of imposing a disadvantage?
Approaches to s. 15 that emerged in the 1995 trilogy:
 Miron v Trudel: denial of car accident benefits to unmarried opposite-sex couples, violation, not
justified by s. 1
 Egan v Canada: denial of old age spousal allowance to same-sex couples. No violation, left to
Parliament to determine whether it had financial means to do such
 Thibaudeau v Canada: inclusion-deduction rules of Income Tax Act (giver of spousal support could
deduct from income, receiver had to include it in income), constitutional
 1) McLaughlin, Cory, Iacobucci, Sopinka: looks for differential treatment on basis of prohibited ground
that had the effects of imposing a real disadvantaged in the social and political context of the time
 2) Lamer, Gonthier, La Forest, Major: added 4th part to Andrews test- precondition to a finding of
discrimination: personal characteristic at issue must be irrelevant to the functional values underlying
the challenged law
 3) L’Heureux-Dube: focus on grounds of discrimination be abandoned- should focus on the nature of
the group and the nature of the interest adversely affected by the challenged law (more vulnerable the
group, more fundamental the interest at stake = more likely that a difference in treatment will be
discriminatory)

Law v Canada (1999)

Facts: Applies for survivor’s pension when husband dies. People over 45 or with dependent children: full
benefit. People 35-45: reduced rate. People under 35: no benefits until they turned 65. She got
nothing because she is 30. Argues age discrimination.
Issue: Did the age restrictions violate s. 15?
Decision: No, age distinctions are not discriminatory.
Reasoning: Discrimination = distinctions that are an affront to human dignity. Adds “contextual factors.”
wants a purposive approach to s 15(1)

Discrimination should be defined in terms of the impact of the law or program on the
“human dignity” of members of the claimant group, having regard to four contextual factors: 
(1) Pre-existing disadvantage, if any, of the claimant group;
(2) Degree of correspondence between the differential treatment and the claimant group’s
reality;
(3) Whether the law or program has an ameliorative purpose or effect; and
(4) The nature of the interest affected 
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Ratio:

R v Kapp (2008)
Facts: Federal govt. wants to enhance involvement of Aboriginals in commercial fishery. Part of it was
issuance of communal fishing licenses, allowing bands to fish before other commercial fishers
(mostly white) could.
Issue: Is there a case of discrimination based on race in 15(2)?
Decision: Appeal dismissed. Communal fishing license was constitutional.
Reasoning: Focus of s. 15(1) is on preventing governments from making distinctions based on enumerated or
analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing
disadvantage on the basis of stereotyping.  The focus of s. 15(2) is on enabling governments to
pro-actively combat discrimination by developing programs aimed at helping disadvantaged groups
improve their situation.
Ratio: Once s. 15 claimants have shown a distinction made on an enumerated or analogous ground, it is
open to the govt. to show that the impugned law, program or activity is ameliorative.

Hodge (2004)
Facts: Woman denied CPP survivor benefits at the death of her common law spouse, because at the time of
his death they were separated. Benefit was available to separated married (but not divorced)
surviving spouses.
Issue: Does it violated s. 15?
Decision: No, because no differential treatment based on marital status (marital relationship denied)
Reasoning: Comparator group chosen by Court: divorced, formerly married spouses  contrasts to claimant
class of former common law spouses
Comparator group chosen by claimant: separated married spouses  contrasts to claimant class of
separated common law spouses
Ratio:

R v Withler
Facts: Widows whose federal supplementary death benefits were reduced because of the age of their
husbands at the time of death.
Issue: Does the legislation, which reduces their benefits, discriminate on the basis of age, violating the
equality guarantee in s. 15(1) of the Canadian Charter of Rights and Freedoms?
Decision: No violation of s. 15.
Reasoning: Fails first part of Kapp Test, as it creates a distinction on enumerated ground, but the purpose
was to benefit groups in different circumstances with different interests. Comparing claimants to just
one comparator group is inadequate – must view it in relation to the entire benefit plan.
Ratio: De-emphasizes right comparator group and the role of comparison. Affirms contextual factors as
part of analysis.

Quebec AG v A
Facts: Unmarried couple gets divorced. Man was millionaire, woman mostly dependent on his income.
Child support awarded upon divorce. Quebec legislation did not recognize people who are not
married or in a civil union as eligible for child support.
Issue: Is the failure to recognize common law relationships a breach of equality rights?
Decision: Violation of s. 15, justified under s. 1.
Reasoning: Kapp Test: (1) there is a distinction created on analogous grounds (marital status).
 (2) Creates a disadvantage by excluding economically vulnerable and dependent de facto spouses
(5-4) (though it doesn't perpetuate prejudices or stereotypes, these are guiding factors not
necessary to find a violation of s. 15).
 44
 Oakes Test- justified (5-4): Minority- not appropriate case for deference
 Majority-deferential to policy choices of the legislature
Dissent on Oakes test: (fails on minimum impairment). An opt-out scheme would be less impairing,
as it would give vulnerable people more power over a relationship (don't need both sides to sign up
for a civil union.

SECTION 7 RIGHTS
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.

Reference Re: Motor Vehicle Act

Facts: Section 94(2) of the Motor Vehicle Act of British Columbia created an absolute liability offence of
driving while with a suspended licence. To obtain a conviction, the Crown needed only to establish
proof of driving regardless of whether the driver was aware of the suspension or not. A successful
conviction carried a prison term of a minimum of seven days.
Issue: Was the provision a violation of s. 7?
Decision: Yes.
Reasoning:
Ratio: Any possibility of a deprivation of life, liberty, or security of person from an absolute liability
offence offends the Charter. A law that violates section 7 cannot be saved by section 1 of the
Charter except for extreme circumstances (ex. natural disasters, outbreaks of war, epidemics)

R v Morgantaler
Facts: Criminal Code s 251(1) created blanket prohibition on abortion. There were exceptions under s
251(4) – must occur in accredited hospital and be approved by therapeutic committee. Morgentaler
open non-accredited abortion clinic and claimed 251(2) violated s 7.
Issue: Was the provision a violation of s. 7?
Decision: Violation of s. 7, not justified under s. 1.
Reasoning: By depriving someone of immediate right to abort (and requiring a process of approval), you are
breaching the security of a person – b/c there are physical reasons why an abortion should be
performed earlier rather than later. Delays caused by administrative structure creates mental harm.
Ratio: Majority: State interference with bodily integrity and state-imposed psychological stress are
breaches of security of person. [Security of person may include physical and psychological
integrity]
Wilson: agrees on definition of security of person, disagrees on liberty. Individual has “a degree of
autonomy in making decisions of fundamental personal importance” Freedom of conscience (2(a))
is a P of FJ.

Canada v Bedford
Facts: ~ Criminal Code s. 210: prohibition on bawdy houses, 212(1)(j) offence to live off avails of
prostitution, 213(1)(c) offence to communicate in public place for the purpose of engaging in
prostitution
~ Prostitution is not illegal in Canada, but these provisions confine prostitution to: street prostitution
and out calls. These forms of prostitution are higher risk; so engage the security of person. They say
causation is present b/c prostitution is not a choice for some, and the gov’t is limiting their choices
within the confines of being a prostitute.
Issue: Are those provisions violations of s. 7?
Decision: Yes, temporary suspension of validity.
Reasoning: Deprivation is not in accordance with the principles of fundamental justice. Aggravation caused by
the law creates causal connection between the state action and the effect on the applicant’s s. 7
rights.
 45
1) Arbitrariness: there is not a direct connection between the purpose of the law and effect on the
individuals
2) Overbreadth: law is so broad in scope that it would include conduct that has no relation to the
purpose of the legislation- living off the avails: purpose is to target pimps, but it applies much more
broadly than that – b/c if she hired a driver (to decrease risks), he would be technically living off the
avails b/c she is paying him
3) Gross Disproportionality: the law’s effect on life, liberty, or security are so grossly
disproportionate to the purpose that it cannot be supported
 Preventing communication: cannot talk to see signs of intoxication/anger, which is grossly
disproportionate to the objective of regulating nuisance
 Bawdy house: never impact (increased risks for prostitutes) is disproportionate to the
objective of preventing public nuisance
 Govt. can regulate nuisance, but not at the cost of health and safety of prostitutes
Ratio: Example of parliamentary dialogue. Legislature revisits and makes choices.

Carter v Canada
Facts: Carter has ALS. She wants to die, but is physically unable to kill herself. Raises the s 7 right to life.
People are deprived access to physician-assisted suicide. Impugned law: s. 241(b) everyone who
aids or abets a person in committing suicide commits an indictable offence. Criminal Code s 14: no
person may consent to death being inflicted on them. Also argues s. 15, on the basis of disability (no
provision criminalizing suicide (those that are able to kill themselves) vs. those that are unable to
kill themselves and need assistance being criminalized)). S. 7 interests at stake: liberty (ability to
choose death), security of person (state-imposed psychological harm from living in pain), life
(people possibly taking their own lives prematurely, when they may not have ability later on with a
degenerative disease).
Issue: Is deprivation of access to physician-assisted suicide a breach of s. 7? Is there a s. 15 violation?
Decision: Yes. 1-year invalidity for impugned provisions (voided). No to s. 15.
Reasoning: ~ The deprivation is not in accordance with principles of fundamental justice.
Govt.- Object of the law was to protect vulnerable persons from being induced to commit suicide at
a moment of weakness. Measures taken were overbroad.
~ Overbreadth: not all people incapable of taking their own lives are vulnerable (some are just
physically unable).
~ Sections are void to the extent that they prohibit doctor-assisted dying for individuals who: are
competent, are clearly consent to termination of life, have “a grievous and irremediable medical
condition that causes enduring suffering that is intolerable to the individual in the circumstances of
his or her condition” (not a closed list of conditions).
~ They later granted a 4-month extension to Parliament, with an exemption for Quebec, and an
allowance for people to apply to superior courts to determine whether they meet the conditions set
out in Carter.
Ratio: Palpable and overriding error needed to reassess facts of a lower court.

Gosselin v Quebec
Facts: Quebec’s welfare gave people under 30 less $ unless they participated in the educational/work
program. Distinction was removed in 1989 – class action for those affected by old scheme.
Issue: Is the state required to provide positive protection under s. 7?
Decision: No violation.
Reasoning: No positive obligation on the state under s. 7 to ensure that each person enjoys life, liberty, and
security of the person. On s. 15 issue claims fail as well.
Ratio: Section 7 does apply beyond the criminal context. Social and economic interest may fit under
section 7 (just doesn’t apply here).
 46
Chaoulli v Quebec
Facts: Legislation prohibits obtaining private insurance for health care services that are already insured by
the state – so if the service is publically insured, you are prohibited from getting private health
insurance to get the service performed privately (and therefore not have to be on waiting list).
Issue: Can Quebec residents who are willing to spend money to access private health care be prevented
from doing so? Is the prohibition on private health insurance a violation of s. 7 right to life and
security?
Decision: Section 15 of HEIA and section 11 of HOIA are inconsistent with Quebec’s Charter (and s 7 of the
Canadian Charter).
Reasoning: Majority:
 Look at what other places with parallel systems did.
 Classify it more as a negative right – they want to be able to pay to get private insurance to
get medical treatment (b/c delays while on the waiting list can be deadly)
 Right to life is affected by the delays
 Patients should not have to leave the province to get healthcare
 Courts must show deference where evidence establishes that the gov’t has assigned proper
weight to each of the competing interests BUT NO DEFERENCE HERE (because govt. has
failed to act for years)
(McLachin, Major, Bastarache) say:
 Prohibition is arbitrary because a monopoly is not necessary (or even related to) the
objective of maintaining quality of public health care.
Dissent (Binnie):
 Having a 2 tier healthcare system would have a negative effect on the integrity of the public
healthcare system
 Not arbitrary
 Classify it more as a positive right – that they are asking for shorter wait lists
 Kind of the idea that people who can afford it can jump the queue and obtain preferential
treatment
 No legal basis to intervene
Ratio: