Con Law NCA

7/27/2019 Con Law NCA

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For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6!!, or e-"ail hi" @ andrew#captan@utoronto#ca# $e success%ully co"pleted all o% the &'A reuire"ents in the anuary, *++ sitting#&ote. /oronto and surrounding area only0

'1&2/3//31&A5 5A

A23' '1&'9/2

0 21:'2 A&; &A/: 1F /$ '1&2/3//31&

Constitution Act, 1867- The British North America Act was renamed the Constitution Act,1867, in 1982- Established the rules of ederalism, but did not attem!t to codif" all constitutional rules# $eft o!en !ossibilit" forconstitutional con%entions#- There are se%eral &a!s in this Act, howe%er

Constitution Act, 1982- This Act did ' main thin&s to (anada)s constitutional law* +1 An amendin& formula was ado!ted +2 The authorit" o%er(anada of the ./ +im!erial 0arliament was terminated +' and the (harter was ado!ted- The !hrase (onstitution of (anada was used for the first time in this Act

- The definition of the (onstitution of (anada includes ' cate&ories of instruments 3 +1 (anada Act 1982 +whichincludes the (onstitution Act, 1982 +2 A list of '4 Acts and orders +includin& the (onstitution Act, 1867 +'Amendments which ma" be made# The (harter of ri&hts and reedoms is !art of the (onstitution of (anada because itis 0art 5 of the (onstitution Act, 1982- The su!remac" clause is also found in this act* s 2+1

Parliamentary privilege- The federal ouses of 0arliament and the !ro%incial le&islati%e assemblies !ossess a set of !owers and !ri%ile&es thatare necessar" to their ca!acit" to function as le&islati%e bodies these !owers and ri&hts are nown collecti%el" as!arliamentar" !ri%ile&e +e# freedom of s!eech in debate- ee discussion in (anada % :aid- ource ; !art of (onstitution of (anada + New Brunswick v Canaa but o&& critici


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substanti=e li"itations upon go=ern"ent action# These !rinci!les ma" &i%e rise to %er" abstract and &eneralobli&ations, or the" ma" be more s!ecific and !recise in nature#o, the principles are not "erely descripti=e, but are also in=ested with a power%ul nor"ati=e %orce, and are

binding upon both courts and go=ern"ents 3n other words, as this 'ourt con%ir"ed in the Manitoba Language Rights Reference, in the process o%

'onstitutional adjudication, the 'ourt "ay ha=e regard to unwritten postulates which %or" the =ery %oundation

o% the 'onstitution o% 'anada

+1 -eeralism 5t is undis!uted that (anada is a federal state# 3n a %ederal syste" o% go=ern"ent such as ours, political power

is shared by two orders o% go=ern"ent. the %ederal go=ern"ent on the one hand, and the pro=inces on theother# ach is assigned respecti=e spheres o% jurisdiction by the Constitution Act, 1867. 5n inter!retin& our(onstitution, the courts ha%e alwa"s been concerned with the federalism !rinci!le, inherent in the structure of ourconstitutional arran&ements, which has from the be&innin& been the lodestar b" which the courts ha%e been &uided# Thisunderl"in& !rinci!le of federalism, then, has e=ercised a role of considerable im!ortance in the inter!retation of thewritten !ro%isions of our (onstitution# 5n the Patriation!e"erence, supra, at !!# 94-9, we confirmed that the !rinci!le offederalism runs throu&h the !olitical and le&al s"stems of (anada# /he principle o% %ederalis" recogni>es the di=ersity o% the co"ponent parts o% 'on%ederation, and theautono"y o% pro=incial go=ern"ents to de=elop their societies within their respecti=e spheres o% jurisdiction /he principle o% %ederalis" %acilitates the pursuit o% collecti=e goals by cultural and linguistic "inorities which

%or" the "ajority within a particular pro=ince# The federal structure ado!ted at (onfederation enabled rench-s!eain& (anadians to form a numerical maorit" in the !ro%ince of ?uebec, and so e=ercise the considerable !ro%incial!owers conferred b" the Constitution Act, 1867in such a wa" as to !romote their lan&ua&e and culture# 5t also made!ro%ision for certain &uaranteed re!resentation within the federal 0arliament itself+2 .emocracyThe !rinci!le of democrac" has alwa"s informed the desi&n of our constitutional structure, and continues to act as an

essential inter!reti%e consideration to this da"# The democrac" !rinci!le can best be understood as a sort of baselinea&ainst which the framers of our (onstitution, and subse@uentl", our elected re!resentati%es under it, ha%e alwa"so!erated# 5t is !erha!s for this reason that the !rinci!le was not e=!licitl" identified in the te=t of the Constitution Act,1867itself ;e"ocracy is co""only understood as being a political syste" o% "ajority rule# ;e"ocracy enco"passes anu"ber o% =alues, including. respect %or the inherent dignity o% the hu"an person, co""it"ent to social justiceand euality, acco""odation o% a wide =ariety o% belie%s, respect %or cultural and group identity, and %aith insocial and political institutions which enhance the participation o% indi=iduals and groups in society #

3n institutional ter"s, de"ocracy "eans that each o% the pro=incial legislatures and the %ederal 9arlia"ent iselected by popular %ranchise#3n indi=idual ter"s, the right to =ote in elections to the $ouse o% 'o""ons and the pro=incial legislatures,

and to be candidates in those elections, is guaranteed to =ery citi>en o% 'anada b" %irtue of s# ' of the C/arter# /he relationship between de"ocracy and %ederalis" means, for e=am!le, that in (anada there ma" be differentand e@uall" le&itimate maorities in different !ro%inces and territories and at the federal le%el# No one maorit" is more orless le&itimate than the others as an e=!ression of democratic o!inion, althou&h, of course, the conse@uences will %ar"with the subect matter ;e"ocracyin an" real sense of the word cannot e=ist without the rule o% law# 5t is the law that creates the frameworwithin which the so%erei&n will is to be ascertained and im!lemented# To be accorded le&itimac", democraticinstitutions must rest, ultimatel", on a le&al foundation

+' Constitutionalism an t/e !ule o" 0aw The Frule of lawF is a hi&hl" te=tured e=!ression, im!ortin& man" thin&s which are be"ond the need of these reasons

to e=!lore but con%e"in&, for e=am!le, a sense of orderliness, of subection to nown le&al rules and of e=ecuti%eaccountabilit" to le&al authorit"# At its "ost basic l e=el, the rule o% law =ouchsa%es to the citi>ens and residents o% the country a stable,

predictable and ordered society in which to conduct their a%%airs# 3t pro=ides a shield %or indi=iduals %ro"arbitrary state action# ' Elements of >ule of $aw* i Gne law for all ii there is an actual order of !ositi%e laws that !reser%es and embodiesthe normati%e order iii the relationshi! bHw the state and the indi%idual must be re&ulated thr ou&h a series of le&al rules# 3"portance o% :ule o% 5aw cannot be o=ere"phasi>ed? this principle is the ey to understanding the legal%ra"ewor o% the 2tate# /his is the %unda"ental principle o% legality? the ulti"ate %oundation o% the 'onstitution#(onst)ism is sim!l" that the &o%)t must com!l" with the (onstitution

+ Protection o" inorities* There are a number of s!ecific constitutional !ro%isions !rotectin& minorit" lan&ua&e, reli&ion and education ri&hts#

.ndoubtedl", the three other constitutional !rinci!les inform the sco!e and o!eration of the s!ecific !ro%isions that!rotect the ri&hts of minorities# The concern of our courts and &o%ernments to !rotect minorities has been !rominent inrecent "ears, !articularl" followin& the enactment of the C/arter# .ndoubtedl", one of the e" considerations moti%atin&the enactment of the C/arter, and the !rocess of constitutional udicial re%iew that it entails, is the !rotection of

minorities#

'1BB&/. These !rinci!les are* not e=hausti%e +com!lete, thorou&h must be taen to&ether no sin&le !rinci!letrum!s another#

*0 AB&;3&C 9:1';:2 A&; 2'2231&

- ee (onstitution Act, 1982, 0art :, ss '8-9 +these !ro%isions o%erride the u!reme (ourt)s rulin& in Patriation!e"erence

Part o" Constitution Act, 19823 Ceneral a"ending procedure+s '8 +4-74 formulae* A!!lies when the other, more s!ecific, !rocedure don)t

a!!l", and for those matters listed in s 2 +s 2 re@uires that the &eneral amendin& !rocedure be used for si= definedclasses of amendments to the (onstitution# >e@uires amendment to be authori


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Federal parlia"ent alone+s * ederal 0arliament, b" ordinar" le&islation, can amend !arts of the (onstitution of

(anada which relate to the E=ecuti%e &o%ernment of (anada or the enate and ouse of (ommons 9ro=incial legislature alone+s * Each !ro%incial $e&islature authorieference re ecession of ?uebec4peration o" Constitutional Principles in t/e %ecession Conte5t /he secession o% a pro=ince %ro" 'anada "ust be considered, in legal ter"s, to reuire an a"end"ent to

the 'onstitution# The amendments necessar" to achie%e a secession could be radical and e=tensi%e#But the de"ocratic principlesidentified abo%e would demand that considerable wei&ht be &i%en to a clear

e=!ression b" the !eo!le of ?uebec of their will to secede from (anada, e=en though a re%erendu", in itsel% andwithout "ore, has no direct legal e%%ect, and could not in itsel% bring about unilateral secession3 the secession ofa !ro%ince would ha%e to occur b" wa" of an amendment to the (onstitution it would be these ne&otiations that wouldhel! de%elo! the a!!ro!riate amendmentThe %ederalis" principle, in conunction with the de"ocratic principle, dictates that the clear repudiation o% the

e


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;32/:3/31& 1F 91:2

0 9:3&'3952 1F 3&/:9:/A/31&

- 5t is the distribution of !owers bHw a central authorit" +federal 0arliament and re&ional authorities +!ro%incialle&islatures that constitutes the essence of federalism#- The (onstitution defines the inds of laws that ma" be enacted b" federal 0arliament and !ro%incial $e&islatures- This !art e=amines the techni@ues, lan&ua&e and doctrines a!!lied b" courts in carr"in& the re%iew of distribution of!owers @uestions +i#e# challen&es on federal &rounds- The distribution of le&islati%e !ower bHw the federal 0arliament and the !ro%incial $e&islatures is mainl" set out in ss Dand D* o% the 'onstitution Act, 867

Priority etween "eeral an C/arter grouns- ederal ar&uments should !recede (harter ones# And if "ou are ar&uin& both, "ou should frame the (harter ar&umentas one in the alternati%e

Processreasoning in uicial review

- Two ste!s are in%ol%ed*TE0 1* the characteri


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destro" the bans, then the law will be characteri


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- Gnce the matter +or !ith and substance of a challen&ed law has been identified, the second stagein udicial re%iew isto assi&n the matter to one of the classes of subects +or heads of le&islati%e !ower s!ecified in the (onstitution#- There are certain &eneral !rinci!les that cut across all heads of !ower and will be discussed here

E=clusi%eness

- The lists in ss 91 and 92 are mutuall" e=clusi%e +but, still, laws ma" ha%e a double as!ect 3 ie# two matters

Ancillar" !ower RRR

-3F 1&5 A ':/A3& 9:1G3231& 1F A 5A:C: 2/A//1: 2'$B 32 3&C '$A55&C; (A2 3& /$C&:A5 B1/1:2 'A2 A&; /$ GA53;3/ 1F 2 #) H 1 &; /1 511I A/ /$ A&'355A:;1'/:3&)#

5f the lar&er le&islati%e scheme is %alid, then the im!u&ned !ro%ision ma" also be found to be %alid

because of its relationshi! to the lar&er scheme b" wa" of this doctrine- /2/. Beasure the degree o% encroach"ent o% the i"pugned pro=ision on the other go=ern"entJs sphere o%power (the "ore signi%icant the encroach"ent, the "ore strict the test is), and then "ust deter"ine hownecessary the i"pugned pro=ision is to the otherwise =alid legislati=e sche"e.

(i) For B3&1: encroach"ents, the rational connection test is appropriate(ii) For BA1: encroach"ents, a stricter test (Ktruly necessaryL) is appropriate (eneral Motors

case!- E# 5n *eneral otors, the im!u&ned law was the ci%il remed" in the federal com!etition statute# This law did intrude

into !ro%incial !ower o%er !ro!ert" and ci%il ri&hts, but onl" in a limited wa"# Ther efore, it was sufficient to test the%alidit" of the law b" the rational connection test# The rational connection to the le&islati%e scheme was that the ci%ilremed", b" !ro%idin& a means and an incenti%e to !ri%ate enforcement, would im!ro%e the efficac" of the com!etition law

(anadian Mestern Ban % AlbertaFA'/2* 0ro%incial statute enacted to enforce laws on federall" chartered bans who sell credit-related insurance tocustomers# .!on the comin& into force of the >nsurance Act, the a!!ellant bans sou&ht a declaration that their!romotion of insurance is banin& under s# 91+1 of the Constitution Act, 1867and that the >nsurance Actand itsassociated re&ulations are constitutionall" ina!!licable andHor ino!erati%e to the bans) !romotion of insurance#322. The @uestion that arises on this a!!eal is the e=tent to which bans, as federall" re&ulated financial institutions,must com!l" with !ro%incial laws re&ulatin& the !romotion and sale of insurance#:A21&3&C*-eeralism 5t is be"ond @uestion that federalism has been a fundamental &uidin& !rinci!le of our constitutional order since the

time of (onfederation Each head of !ower was assi&ned to the le%el of &o%ernment best !laced to e=ercise the !ower

(onstitutional doctrines !ermit an a!!ro!riate balance to be struc in the reco&nition and mana&ement of the

ine%itable o%erla!s in rules made at the two le%els of le&islati%e !ower, while reco&ni0GE of the enactin& bod"* (an loo to intrinsic e%idence +e# !reambleH!ur!ose clauses, and

e=trinsic e%idence# Oust loo to T>.E 0.>0GE thou&h, not necessaril" the stated !ur!ose+2 The $EPA$ EE(T of the law* E#, inAttorney)*eneral "or Alerta v( Attorney)*eneral "or Canaa,C19'9D A#(# 117 +Alerta Banks, the 0ri%" (ouncil held a !ro%incial statute le%"in& a ta= on bans to bein%alid on the basis that its effects on bans were so &reat that its true !ur!ose could not be +as the !ro%incear&ued the raisin& of mone" b" le%"in& a ta= +in which case it would ha%e been intra vires, but was rather there&ulation of banin& +which rendered it ultra vires, and thus in%alid

ere, the !ith and substance of the Alberta >nsurance Actrelates to !ro!ert" and ci%il ri&hts in the !ro%ince unders# 92+1' of the Constitution Act, 1867, and is a %alid !ro%incial law# The mere fact that the bans now !artici!ate in the!romotion of insurance does not chan&e the essential nature of the insurance acti%it", which remains a matter &enerall"fallin& within !ro%incial urisdiction /he double aspect doctrine* The double as!ect doctrine a!!lies within the course of the !ith and substance

anal"sis# The double as!ect doctrine reco&nii&hts in the0ro%ince as!ect

That bein& said, it must also be acnowled&ed that, in certain circumstances, the !owers of one le%el of &o%ernmentmust be !rotected a&ainst intrusions, e%en incidental ones, b" the other le%el# or this !ur!ose, the courts ha%ede%elo!ed two doctrines# The first, the doctrine of interurisdictional immunit", reco&ni


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!aramountc" are desi&ned to !romote# 5t is these doctrines that ha%e !ro%ed to be most consistent with contem!orar"%iews of (anadian federalism, which reco&ninsurance Act#This is not a case where the !ro%incial law !rohibits what the federal law !ermits# The federal le&islation is !ermissi%enot e=hausti%e, and com!liance b" the bans with the !ro%incial law com!lements, not frustrates, the federal !ur!ose$5;. () The !ro%incial law was %alid under !ro!ert" and ci%il ri&hts (*) The claim to interurisdictional immunit"should be reected +credit related insurance is not a %ital or essential element of the banin& undert ain& ()ederal!aramountc" does not a!!l" on the facts of this case

*0 9A:AB1&/'

- The doctrine of federal !aramountc" sa"s that* where there are inconsistent or conflictin& federal and !ro%incial laws, it

is the federal law which !re%ails to the e=tent of the inconsistenc"- The doctrine a!!lies GN$L 5 the ederal law and !ro%incial law are inde!endentl" %alid +i#e#, must !ass the !ith andsubstance test first

.e"inition o" inconsistency+a E=!ress contradiction- Arises where it is im!ossible to obe" both the federal and !ro%incial law-5n !ot/mans, Benson ? @eges >nc3 no conflict bHc !ossible to com!l" with both b" followin& the !ro%incial le&islation+b rustration of federal !ur!ose

- Mhere there are o%erla!!in& federal and !ro%incial laws, and it is !ossible to com!l" with both laws, but the effect of the!ro%incial law would be to frustrate the !ur!ose of the federal law, another case of inconsistenc" arises- ee !ot/mans, Benson ? @eges >nc+tobacco ad%ertisin& case

Negative implication+a (o%erin& the field*

- 5n . and GS, for e=am!le, courts ha%e acce!ted a ne&ati%e im!lication test for inconsistenc"* a federal law ma" beinter!reted as co%erin& the field and !recludin& an" !ro%incial laws in that field, e%en if the" are not contradictor" of thefederal# 5n (anada, this has been reected +4*ray v %parling+b E=!ress e=tension of !aramountc"*- (an, for e=am!le, 0arliament e=tend the doctrine of !aramountct" be"ond the case of an actual conflict in o!erationLes#

4verlap an uplication- Ju!lication is NGT a test of inconsistenc" +ultiple Accesscase

'""ect o" inconsistency- Gnce it has been determined that a federal law is inconsistent with a !ro%incial law, the doctrine of federal !aramountc"sti!ulates that the !ro%incial law must "ield to the federal law#- The most accurate wa" to describe this is to sa" that the !ro%incial law is rendered ino!erati%e to the e=tent of theinconsistenc"

>othmans, Benson ed&es 5nc % asatchewanFA'/2. The res!ondent com!an" sou&ht a declaration that s# 6 of the asatchewan =oacco Control Actis, b" %irtueof the !aramountc" doctrine, ino!erati%e in li&ht of s# '4 of the federal =oacco Act# ection '4 allows retailers to dis!la"tobacco and tobacco !roduct-related brand elements and !ost si&ns indicatin& the a%ailabilit" and !rice of tobacco!roducts, while s# 6 bans all ad%ertisin&, dis!la" and !r omotion of tobacco or tobacco-related !roducts in an" !remises inwhich !ersons under 18 "ears of a&e are !ermitted# The (ourt of ?ueen)s Bench dismissed the com!an")s a!!lication#The (ourt of A!!eal set aside that decision and declared s# 6 ino!erati%e on the basis of a !ractical inconsistenc"between the two !ro%isions#

322. Mhether s# 6 of =/e =oacco Control Actis sufficientl" inconsistent with s# '4 of the =oacco Actso as to berendered ino!erati%e throu&h the !aramountc" doctrine, two @uestions arise# irst, can a !erson simultaneousl" com!l"

with s# 6 of =/e =oacco Control Actand s# '4 of the =oacco Act econd, does s# 6 of =/e =oacco Control Actfrustrate 0arliament)s !ur!ose in enactin& s# '4 of the =oacco Act:A21&3&C* The doctrine of federal !aramountc" dictates that where there is an inconsistenc" bHw %alidl" enacted but o%erla!!in&

!ro%incial and federal le&islation, the !ro%incial le&islation is ino!erati%e to the e=tent of the inconsistenc" 0ro%incial le&islation that dis!laces or frustrates 0arliament)s le&islati%e !ur!oseis also inconsistent for the !ur!oses

of the doctrine 0arliament did not &rant retails a !ositi%e entitlement to dis!la" tobacco !roducts* as the Act was enacted under the

criminal !ower, and since the criminal law !ower is !rohibitor" in nature, !ro%isions enacted !ursuant to it do notordinaril" create freestandin& ri&hts# econd, it is difficult to ima&ine how &rantin& retailers a freestandin& ri&ht to dis!la"
mailto:[email protected]:[email protected]:[email protected]


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tobacco !roducts would assist 0arliament in !ro%idin& a le&islati%e res!onse to a national !ublic health !roblem ofsubstantial and !ressin& concern 3t is plain that dual co"pliance is possible in this case# A retailer can easily co"ply with both s# + o% the

"obacco Actand s# 6 o% "he "obacco Control Actin one o% two ways. by ad"itting no one under 8 years o% ageon to the pre"ises or by not displaying tobacco or tobacco-related products#

2ection 6 o% the /obacco 'ontrol Act does &1/ %rustrate the legislati=e purpose underlying s + o% the

%ederal Act# oth the general purpose o% the "obacco Act(to address a national public health proble") and thespeci%ic purpose o% s# + (to circu"scribe the "obacco ActJs general prohibition on pro"otion o% tobaccoproducts set out in s# D) re"ain %ul%illed$5;. The doctrine of !aramountc" does not a!!l"

0 9:19:/ A&; '3G35 :3C$/2. s D*(), 'onstitution Act, 867

Backgroun- MHin !ro%incial urisdiction- B" far the most im!ortant head of !ro%incial !ower#- Oost of the maor constitutional cases ha%e t urned on the com!etition between one or more of the federal heads of!ower, on the one hand, and !ro!ert" and ci%il ri&hts, on the other- Encom!asses most of the le&al relationshi!s between !ersons in (anada# The law relatin& to !ro!ert", succession,

the famil", contracts, labour relations and torts is mainl" wHin the !ro%incial urisdiction under s 92+1'# But a lot of !ubliclaw has also been swe!t under this rubric- Jistin&uish bHw ci%il ri&hts and liberties, as the" are different

>nsurance0ro%incial !ower

- Earliest decision in%ol%ed an Gntario statute re@uired that certain conditions be included in e%er" !olic" of fireinsurance entered into in Gntario it was held that the re&ulation of the terms of the contracts came within !ro!ert" andci%il ri&hts, and not trade and commerce + Citiens >nsurance v Parsons- The re&ulation of aparticular inustrycomes within !ro!ert" and ci%il ri&hts in the !ro%ince, e%en when the industr" and!articular firms e=tended be"ond the boundaries of an" one !ro%ince +>nsurance !e"erence$ Parsons

ederal !ower

- But the ed &o%ernment continues to re&ulate a substantial !art of the insurance industr" under statutes co%erin&British and forei&n com!anies, federall" incor!orated com!anies, and, on a %oluntar" basis, !ro%inciall" incor!oratedcom!anies# These statutes) !reambles indicate that the !owers o%er trade and commerce, aliens and insol%enc" arerelied u!on as su!!ortin& their constitutionalit"- E# A federal law a!!licable to insol%ent insurance com!anies was u!held +nsurance

Business in general

- The insurance cases discussed su&&est that the re&ulation of business was ordinaril" a matter wHin !ro!ert" and ci%ilri&hts in the !ro%ince# But there are a number of e=ce!tions, which fall within the federal !ower +e# some industriesha%e been held to fall within the feder al urisdiction under the !eace, order and &ood &o%ernment !ower, namel"aeronautics and the !roduction of atomic ener&"- The !oint is that the re&ulation of an industr", or the more &eneral re&ulation of !rices or !rofits or combinations, hastraditionall" been re&arded b" the courts, not in terms of its ultimate, often nation-wide obecti%es, but in terms of its

immediate im!act u!on freedom of contract and !ro!rietar" ri&hts 3 in these terms, restraints on business f all into thecate&or" of !ro!ert" and ci%il ri&hts in the !ro%ince

Pro"essions an traes- >e&ulations of !rofessions and trades t"!icall" tae the f orm of restrictions on entr", cou!led with rules of conduct,which include fee-settin&, and administration b" a &o%ernin& bod" this falls within s 92+1' +rieger

0aour relations0ro%incial !ower

- Penerall" falls within !ro!ert" and ci%il ri&hts +=oronto 'lectric3 leadin& case- 5ndustrial !eace +e# stries, locouts falls wHin !ro!ert" and ci%il ri&hts +=oronto 'lectric- $abour standards le&islation !ro!ert" and ci%il ri&hts +0aour Conventions- Gther decisions, such as &nemployment >nsurance !e"erenceand 4il, C/emical


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the law is in%alid +in this case, in fact, (arnation shi!!ed the bul of its !roduct outside the !ro%ince, and the(( ne%ertheless held that the maretin& law was in relation to intra!ro%iincial trade

+iii anitoa 'gg !e"erence* (( struc down a !ro%incial scheme to re&ulate the maretin& of e&&s# Thescheme a!!lied to all e&&s sold in Oan#, includin& e&&s !roduced elsewhere# (ourt said that statutere&ulated maretin& and not onl" affected inter!ro%incial trade, but it A5OEJ at re&ulatin& such trade, and so it

was in%alid as an attem!t to re&ulate such trade Co&& thins this is an odd case, and difficult to see wh" itdidn)t follow %/annonD

+i% !e Agricultural Proucts* .!held scheme re&ulatin& national maretin& of e&&s +which included federaland !ro%incial acts# (( u!held the scheme, and held that theprovincialstatute could im!ose !roduction@uotas on all !roducers irres!ecti%e of the estinationof their out!ut +this !art is im!ortant# Thus, (ourt heldthat !roduction controls are ordinaril"* matters wHin !ro%incial authorit"#

+% Central Canaa Potas/ v %ask* (( struc down as)s !rorationin& scheme for !otash !roduced in!ro%ince# cheme im!osed @uotas on !roducers of !otash in the !ro%ince# (ourt acnowled&ed that!roduction controls were ordinaril" matters wHin !ro%incial authorit", but said that the situation ma" be differentwhere a !ro%ince establishes a maretin& scheme with !rice fi=in& as its central feature Card to reconcile thiswith !e Agricultural Proucts, because the" both essentiall" dealt with !rice fi=in& but mi&ht want to loo tothe estinationof the !roduct 3 if the maorit" of !roduct is to be consumed within !ro%ince, then statute willliel" be intra %ires# 5n this case, %irtuall" all the !otash was &oin& to be e=!ortedD

Mhen the law is aimed at conser%ation !ur!oses, a different stor" emer&es*

+%i %pooner 4ils* Mhere !roduction controls are im!osed for a !h"sical conser%ation !ur!ose, there is NGdoubt that the !ro%ince has !ower

%ecurities regulation- 0ro%inces ha%e !ower to re&ulate the t rade of securities, as a matter fallin& within !ro!ert" and ci%il ri&hts

PropertyPeneral

- The creation of !ro!ert" ri&hts, their transfer, and their &eneral characteristics, are wHin !ro!ert" and ci%il ri&hts in the!ro%ince- Jifficult" has arisen in cases where a !ro%ince has sou&ht to control the ownershi! or use of !ro!ert" in order to

accom!lish a non-!ro!rietar" obecti%e which it could not accom!lish b" more direct means*

+i %witman v 'ling* A !ro%incial law which !rohibited the use of a house to !ro!a&ate communism orbolshe%ism was characterinsurance!e"erence$ Parsons+2 The re&ulation of contracts falls under the !ro!ert" and ci%il ri&hts !ower +Parsons+2 The re&ulation of labour relations, as a &eneral rule, falls within the !ro!ert" and ci%il ri&hts !ower +=oronto 'lectric

etc, althou&h federal &o%ernment can re&ulate labour relations which are a re@uired !art of a federal undertain&+%teveores !e"erenceetc+' The re&ulation of 5NT>A!ro%incial trade falls within the !ro!ert" and ci%il ri&hts !ower, e%en thou&h it ma" ha%einter!ro%incial effects +%/annon v 0ower ainlan .airy to be %alid, howe%er, the le&islation cannot be aimed atre&ulatin& inter!ro%incial maretin& +anitoa 'gg !e"erence# But the !ro%inces can re&ulate !roduction schemes,re&ardless of whether the out!ut is inter!ro%incial +sine that is &enerall" a !ro%incial matter +!e Agricultural Proucts, solon& as the maorityof the !roduct is not bein& e=!orted +Central Canaa Potas/+ Mhere !roduction controls are im!osed for !h"sical conser%ation !ur!oses, then the matter falls within the !ro!ert"and ci%il ri&hts !ower +%pooner 4ils+ The creation of !ro!ert" ri&hts, their transfer and &eneral characteristics are normall" within the !ro!ert" and ci%ilri&hts !ower# Mhere a !ro%ince sees to control ownershi! or usa&e of !ro!ert" in order to accom!lish a NGN-!ro!rietar" obecti%e, then there is a concern t hat it mi&ht be tram!lin& on another head of !ower +e# criminal law +e#%witman

----

(ities!ondent, 0arsons !urchased insurance in Gntario and then had a fire# Mhen he went to collect theA!!ellant insurance from (iti


10/46


2 0ro%inces (an >e&ulate (ontracts* 0ro%incial le&islatures ha%e the urisdiction to re&ulate contracts of a !articularbusiness or trade as lon& as it is within the !ro%ince +includin& the abilit" to limit and control the manner in which the!ro!ert" ma" be dealt with, includin& the terms and conditions of the contracts

$5;.Qud&ement for the >es!ondent, the a!!eal was dismissed +le&islation was intra %ires# eds do not ha%e theauthorit" to re&ulate the contracts of a speci"ic trae, and thus its authorit" does not conflict or com!ete with 92+1'

!ro%incial authorit" to re&ulate ci%il and !ro!ert" ri&hts# 0arsons was allowed to reco%er# A!!eal allowed# A!!ealeda&ain to 0ri%" counsel and therefore, no !recedential %alue#

(hatteree % Gntario +A-PFA'/2* ( found with lots of mone", which was !otentiall" ac@uired from crimes# Based on fed statute, the mone" wasseiN* purpose+sD >e* the e%%ect,courts will loo how the le&islation as a whole affects the ri&hts and liabilities of those subect to its

terms +Oor&antaler# Mhen a!!ro!riate, as well, a re%iewin& court will loo be"ond the le&al effect U be"ond thestatute)s four corners U to e=amine the actual or !redicted !ractical effect of the le&islation in o!eration+orgentaler# A!!lication*

+1 0ur!ose* The !ur!ose of the Act was to mae crime un!rofitable, to ca!ture resources tainted b" crime and tohel! com!ensate !ri%ate indi%iduals and !ublic institutions for the costs of !ast crime# orfeiture is the transfer of!ro!ert" from the owner to the (rown# orfeiture does not result in the con%iction of an"bod" for an" offence# Gnits face, therefore, the C!Atargets property rig/ts+2 Effects* The record shows that as of Au&ust 2447 a!!ro=imatel" V'#6 million in !ro!ert" has been orderedforfeited under the C!Aof which a!!ro=imatel" V1 million had been !aid out to direct %ictims, V944,444 had been!aid in &rants to %arious bodies on %ictims) issues, includin& the 0eel 0olice 5nternet (hild E=!loitation .nit,lea%in& V1#7 million in s!ecial C!Aaccounts# orfeited !ro!ert" included a!!ro=imatel" V44,444 in !ro!ert"in%ol%ed in mariuana &row o!erations, a amilton crac house# =/e practical +an intene e""ect is to take t/epro"it out o" crime an to eter its present an woul)e perpetrators#

5n essence, therefore, the C!Acreates a !ro!ert"-based authorit" to sei


11/46


0ri%" (ouncil

- Earl" cases su&&ested that unless a federal law attem!ted to control +not !articular trades but more &eneral as!ects ofthe econom" +combinations, !rices, labour, which were &o%erned b" economic forces that i&nored !ro%incial boundaries,then the" could not be held %alid under the trade and commerce !ower#

u!reme (ourt of (anada*

+i 4ntario -arm Proucts arketing !e"* ed !ower could e=tend to some transactions that were com!letedin !ro%inces

+ii ! v lassen* 5ssue was whether the Act could %alidl" a!!l" to apurely local work3 a feed mill which!rocessed locall" !roduced wheat and sold it as feed to local farmers# The Act im!osed on !roduces a @uotas"stem which was desi&ned to ensure e@ual access to the inter!ro%incial and e=!ort maret# ere, im!u&nedAct was %alid in relation to this intra!ro%incial transaction, as it was incidental to the !rinci!al !ur!ose of theAct, which was to re&ulate the inter!ro%incial and e=!ort trade in &rain# 0rinci!le* 5f im!u&ned Act hasincidental a!!lication to intra!ro%incal transactions, that)s o +so lon& that the intra!ro%incial effects wereincidental to the !ur!ose of the Act# Caloil case confirms lassenon this !oint#

--- o&& su&&ests caution when inter!retin& these cases, howe%er, which s!ecificall" dealt wH &rainHoil flowacross !ro%incial lines# $o&icall" s!eain&, it maes sense that whene%er a maret for a !roduct is national orinternationalin si


12/46


+% Canaa %tanar =rae ark* GB5TE> from this case su&&ests that the fed !ower can be used to enact trade maracts# This was su!!orted b" irki v !itivik @olings#

%ummary o" principles

+1 The federal trade and commerce !ower has 2 limbs + Parsons*+a inter!ro%incial or international trade and commerce and+b &eneral trade and commerce + affectin& the domino as a whole

+2 >e the first branch, federal le&islation ma" ha%e incidental a!!lication to intra!ro%incal transactions and still be u!heldunder the trade and commerce !ower, !articularl" when the le&islation is re&ulatin& a material that has a national maret+! v lassen

+' >e the first branch, it is !ossible +but not necessaril" the case that, in the name of trade and commerce, a federalstatute can lawfull" im!ose @uotas on each !ro%ince and indi%idual !roducers in that !ro%ince e%en if the !roduct isconsumed mainl" in !ro%ince, at least in the case where there is a federal-!ro%incial coo!erati%e scheme in !lace + !eAgricultural Proucts arketing Act -eeration es proucteurs v Pelllan

+ >e the second branch, it is liel" that, in the name of trade and commerce, a federal statute can lawfull" sti!ulate thatthe %oluntar" use of a distincti%e mar &i%es rise to the re@uirement that the rele%ant material conform to set

com!ositional standards +(anada tandard, althou&h the in%oluntar"Hlac of choice of usin& a distincti%e mar will notlawfull" &i%e rise to the re@uirement that com!ositional standards must be com!lied with + $abatt Breweries

+ (i%il remedies can be used as !art of a scheme to re&ulate national trade !ractices, and be u!held under the tradeand commerce !ower, if the" are sufficientl" connected to a %alid act under which there is a re&ulator" scheme +PO %National $easin&

+6 0arliament has the !ower, under the &eneral trade and commerce !ower, to re&ulate intra!ro%incial as!ects ofcom!etition +PO % National $easin&

+7 0arliament, %ia the &eneral trade and commerce !ower, cannot re&ulate a sin&le trade, e%en on a national basis+0aatt Breweries

-----

(ities!ondent, 0arsons !urchased insurance in Gntario and then had a fire# Mhen he went to collect theA!!ellant insurance from (iti


13/46


irst, where there is a challen&e to the provision of an Act, the court must determine whether the im!u&ned !ro%ision can

be %iewed as intrudin& on !ro%incial !owers, and if so to what e=tent +if it does not intrude, then the onl" !ossible issue is the%alidit" of the act if the !ro%ision does intrude, then must determine the de&ree to which the !ro%ision could be said to intrudeon !ro%incial !owers, so that this intrusion can be wei&hed in li&ht of the !ossible ustification for the section# uch austification will result from the im!u&ned !ro%isionFs relationshi! to %alid le&islation# Thus the ne=t ste! in the !rocess is toascertain the e=istence of %alid le&islation

econd, the court must establish whether the act +or a se%erable !art of it is %alid in cases under the second branch of s#91+2 this will normall" in%ol%e findin& the !resence of a re&ulator" scheme and then ascertainin& whether that scheme meetsthe re@uirements articulated inapor Canaa,supra, and inCanaian National =ransportation,supra# That is, once the!resence of a re&ulator" scheme has been shown to e=ist, it will be necessar", usin& the factors outlined in apor Canaa,supra, andCanaian National =ransportation,supra, to determine its constitutional %alidit"# 5f the scheme is not %alid, then theAct is not %alid, and that is the end of the in@uir"Third, if the scheme of re&ulation is declared %alid +and therefore the Act, or se%erable !art of it is %alid, the court must then

determine whether the im!u&ned !ro%ision is sufficientl" inte&rated with the scheme that it can be u!held b" %irtue of thatrelationshi!# This re@uires considerin& the seriousness of the encroachment on !ro%incial !owers, in order to decide on the!ro!er standard for such a relationshi!#ourth, if the !ro%ision !asses this inte&ration test, it is intra vires0arliament as an e=ercise of the &eneral trade and

commerce !ower# 5f the !ro%ision is not sufficientl" inte&rated into the scheme of re&ulation, it cannot be sustained under thesecond branch of s# 91+2#The followin& is a more detailed anal"sis, and a!!lication, of the test*

() ;oes 2ection # ncroach on 9ro=incial 9owersMThe first ste!, therefore, in assessin& the %alidit" of s# '1#1 of the Combines Investigation Actis to determine

whether the im!u&ned !ro%ision can be seen as encroachin& on !ro%incial !owers, and if so, to what e=tentThe section does encroach, bHc it creates a ci%il action which is &enerall" a !ro%incial matter under s 92+1'

5t does not encroach to a fatal e=tent, thou&h 3 the !ro%ision is a remedial one federal encroachment in this matter isn)t

un!recedented

(*) /he 9resence and Galidity o% a :egulation 2che"eThe second ste! in determinin& the %alidit" of s# '1#1 is to establish whether the Act contains a re&ulator" scheme

The !resence of a well orchestrated economic re&ulation scheme is !resent on e=amination of the Act +throu&hout the Act#

Act creates, e#, Jirector of 5n%esti&ation and >esearch, >estricti%e Trade 0ractices (ommission etc to o%ersee its

a!!licationrom this o%er%iew of the Comines >nvestigation Act5 ha%e no difficult" in concludin& that the Act as a whole embodies a

com!le= scheme of economic re&ulation# The !ur!ose of the Act is to eliminate acti%ities that reduce com!etition in themaret-!lace# The entire Act is &eared to achie%in& this obecti%e# The Act identifies and defines anti-com!etiti%e conduct# 5testablishes an in%esti&ator" mechanism for re%ealin& !rohibited acti%ities and !ro%ides an e=tensi%e ran&e of criminal andadministrati%e redress a&ainst com!anies en&a&in& in beha%iour that tends to reduce com!etitionBut is the >e&ulator" scheme :A$5J under the &eneral trade and commerce !ower 5N $5PT G the criteria

established in (anadian National Trans!ortation G.> other criteria ha%e to be e=amined*

+a =/e regulatory sc/eme operates uner t/e oversig/t o" an agency* Les# The re&ulator" mechanism is carefull" controlledb" the Jirector of 5n%esti&ation and >esearch and to a lesser de&ree b" the >estricti%e Trade 0ractices (ommission

---The ne=t three criteria are indications that the scheme of re&ulation is national in sco!e and that local re&ulation would beinade@uate ---

+ =/e Act is concerne wit/ trae in general3 Les# (oncerned wH trade in &eneral, rather than with the re&ulation of a!articular industr" or commodit" +i#e# eliminatin& commercial !ractices which are contrar" to health" com!etition across thecountr"

+c =/e provinces woul e constitutionally capale o" enacting comines legislation3 No(+ =/e "ailure to inclue one or more provinces or localities woul eoparie t/e success"ul operation o" t/e Comines>nvestigation Act3 Les

() /he Galidity o% s# # o% theCo*bines In+estigation Act Oere inclusion in a %alid le&islati%e scheme does notipso "actoconfer constitutional %alidit" u!on a !articular !ro%ision

/he pro=ision "ust be su%%iciently related to that sche"e %or it to be constitutionally justi%ied# The de&ree of

relationshi! that is re@uired is a function of the e=tent of the !ro%isionFs intrusion into !ro%incial !owersPi%en the le%el of intrusion, the appropriate test in this case is whether the section is K%unctionally relatedL to the

general objecti=e o% the legislation5 am of the o!inion that the necessar" lin between s# '1#1 and the Act e=ists# ection '1#1 is an inte&ral, well-concei%ed

com!onent of the economic re&ulation strate&" found in the Comines >nvestigation Act# E%en if a much stricter test of fit werea!!lied -- for instance, one of necessaril" incidental -- s# '1#1 would still !ass the test# ection '1#1 of the Comines>nvestigation Act is fundamentall" inte&rated into the !ur!ose and underl"in& !hiloso!h" of theComines >nvestigation Act#

There is a close con&ruence between the &oal of enhancin& health" com!etition in the econom" and s# '1#1 which creates a!ri%ate remed" de!endent for its effecti%eness on indi%idual initiati%eThe %er" e=ercise of the remed" in s# '1#1 b" a com!an" a&ainst a com!etitor whose beha%iour has trans&ressed the code

of conduct established b" the Act ma" be said to reflect and !romote the s!irit of com!etition informin& the Comines>nvestigation Act# 5n m" %iew, the intimate tie between the !ur!ose of the Act and a !ri%atel" initiated and !ri%atel" conductedenforcement mechanism is a stron& indication that s# '1#1 is enmeshed in the fabric in the Act# /his conclusion rebuts the appellantNs argu"ent that s# # tilts the constitutional balance between the %ederal

do"ain and the do"ain o% the pro=inces in %a=our o% 9arlia"ent# 2atis%ying all o% the concerns which 3 ha=ediscussed ensures that the constitutional balance will not be upset4t/er Points 5t is also worth mentionin& that in itself s# '1#1 does not share the characteristics of !ro%isions that were not u!held as

e=ercises of the &eneral trade and commerce !ower* +a re&ulatin& a sin&le trade, e%en thou&h on a national basis +0aattBreweries,supra +b re&ulatin& a series of indi%idual trades b" %arious re&ulations or trade codes a!!licable to each indi%idualsector +!e Anti)>n"lation Act, C1976D 2 #(#># '7' +c controllin& !roduction in a local area + Canaian National =ransportation,

supra +d !roscribin& the ethical conduct of !ersons en&a&ed in trade and unconnected to a &eneral re&ulator" scheme&o%ernin& trade relations +apor Canaa,supra +e re&ulatin& contracts of a !articular business or trade +Parsons,supra#$5;. ection '1#1 is intra %ires !arliament b" %irtue of its relationshi! to the scheme of economic re&ulation found inthe (ombines 5n%esti&ation Act# The" both are %alid federal enactments in accordance with 0arliament)s !ower o%ertrade and commerce affectin& the entire nation#

'1BB&/. The (ourt outlined the anal"sis for determinin& the constitutionalit" of a !ro%ision under the &eneral branchof the Trade and (ommerce !ower


14/46


!0 9A', 1:;: A&; C11; C1G:&B&/. s D, 'onstitution Act 867

- The !ower is residuar", bHc it is e=!ressl" confined to matters notcomin& wHin the classes of subects b" this Actassi&ned e=clusi%el" to the $e&islatures of the !ro%inces- The !ro!er inter!retation of the 0#G#P#P !ower is that it is toaccommodate the matters which do not come within an" of the enumerated !ro%incial or federal heads of !ower- The 0#G#P#P# !ower has &i%en rise to branchesof le&islati%e !ower*

() /he KgapL branch- E# the incor!oration of com!anies treaties- This one isn)t that im!ortant

(*) /he Knational concernL branch

+a !elevant cases

+i 0ocal Pro/iitioncase* The idea that some matter of le&islation, in their local and !ro%incial ori&in, couldac@uire national dimensions or national concern and thereb" come wHin the federal 0arliament)s !#o#!ower

+ii Canaa =emperancecase* a new test was formulated +and the re@uirement that the national concernamount to an emer&enc" was re!udiated* i% the legislation is such that it goes beyond local orpro=incial concern or interests and "ust %ro" its inherent nature be the concern o% the ;o"inion as awhole, then it will %all within this head o% power, although it "ay in another aspect touch on other"atters o=er which pro=ince has authorityL# T5 5 TE ETAB$5EJ JE5N5T5GN G TENAT5GNA$ (GN(E>N B>AN(D

+iii #o/annesson v


15/46


(ourt first reected that the Act could be u!held under the fisheries !ower +because these ar&uments were made b" a

!art"Ne=t, (ourt ased whether it could be u!held under the "eeral peace, orer an goo government power +using t/e

national concern octrine(ourt cited the Canaa =emperance -eerationtest, and then said that in a!!l"in& it, "ou must loo to some of the

im!ortant cases lie !e Anti >n"lation Actwhich followed u! the =emperance caseCe then summariE?.5>EOENTD ed le&islation can be u!held under the emer&enc" test of the !o!! !ower e%en if it was enacted after the

emer&enc" had ended +because the effects of t he emer&enc" ma" still be o!erati%e C>.$ED ed le&islation can be u!held under the emer&enc" test of the !o!! !ower e%en if it intrudes on !ro%incial territor"

C>.$ED An emer&enc" isn)t limited to wars C>.$ED

5t isn)t for the (ourt to assess whether the Act will in fact ha%e the effect to miti&ate a&ainst the emer&enc"

TheAnti)>n"lation Act is %alid le&islation for the !eace, order and &ood &o%ernment of (anada and does not, in t he

circumstances under which it was enacted CsicD and ha%in& re&ard to its tem!orar" character, in%ade !ro%incial le&islati%eurisdiction Co, the le&islation must be tem!orar" in nature, otherwise it would be seen as in%adin& !ro%incial urisdictionC The word emer&enc" need not be used in the Act for the Act to be u!held under the emer&enc" test of the !o&&

!ower!ic/ie #s #ugment3An emer&enc" e=ists where there can be said to be an ur&ent and critical situation ad%ersel" affectin& all (anadians

and bein& of such !ro!ortions as to transcend the authorit" %ested in the $e&islatures of the 0ro%inces and thus!resentin& an emer&enc" which can onl" be effecti%el" dealt with b" 0arliament in the e=ercise of the !owers conferredu!on it b" s# 91 of the Britis/ Nort/ America Act to mae laws for the !eace, order and &ood &o%ernment of (anadaCJE5N5T5GN G EOE>PEN(LDThe authorit" of 0arliament is limited to dealin& with critical conditions and the necessit" to which the" &i%e rise must

be confined to le&islation of a TEO0G>A>L (A>A(TE> C>E?.5>EOENTD5n order to determine whether the le&islation in @uestion was enacted to combat such an emer&enc", it is necessar" to

e=amine the le&islation itself +i#e# loo at the !reamble etc Cere, the !reamble reco&ni


16/46


- The !ro%incial role in criminal ustice deri%es from s 92+1, which confers on !ro%incial le&islatures the !ower to maelaws in relation to the admin of ustice, includin& the constitution, maintenance and or&ani


17/46


- E Nova %cotia Boar o" Censors v cNeil* (( held that the censorshi! of films was not criminal# (ourt u!heldcensorshi! law as bein& the re&ulation of an industr" within the !ro%ince +!ro!ert" and ci%il ri&hts- But see ! v -urtney* (( held that a (ode !ro%ision res!ectin& lotteries, which !rohibited lotteries, but made ane=ce!tion for or&ani


18/46


- Thus, it a!!ears that the law !ossesses all the ' criteria for a %alid criminal law# But there are so"e objectionsraisedb" the !ro%inces that must be considered*

+i !egulation or criminal pro/iitionI The first obection is that the -irearms Act is essentiall" re&ulator"rather than criminal le&islation because of the com!le=it" of the law and the discretion it &rants to the chieffirearms officer# Jes!ite its initial a!!eal, this ar&ument fails to ad%ance Alberta)s case# The fact that the Actis com!le= does not necessaril" detract from its criminal nature# urther, the rele%ant !ro%isions demonstratethat the Act does not &i%e the chief firearms officer or the >e&istrar undue discretion urthermore, the law)s !rohibitions and !enalties are not re&ulator" in nature# The" are not confined toensurin& com!liance with the scheme, as was the case in Boggsv( =/e Dueen, but stand on their own,inde!endentl" ser%in& the !ur!ose of !ublic safet"# Nor are the !rohibitions and !enalties directed to theobect of re%enue &eneration+ii Property an civil rig/ts or criminal lawI Alberta)s second maor obection to classif"in& the 199 &uncontrol scheme as criminal law is that it is indistin&uishable from e=istin& !ro%incial !ro!ert" re&ulationschemes such as automobile and land title re&istries# This ar&ument o%erloos the different !ur!oses behindthe federal restrictions on firearms and the !ro%incial re&ulation of other forms of !ro!ert"# Puns are restrictedbecause the" are dan&erous# Mhile cars are also dan&erous, !ro%incial le&islatures re&ulate the !ossessionand use of automobiles not as dan&erous !roducts but rather as items of !ro!ert" and as an e=ercise of ci%ilri&hts, !ursuant to the !ro%inces) s# 92+1' urisdiction The ar&ument that the federal &un control scheme is no different from the !ro%incial re&ulation of motor%ehicles i&nores the fact that there are si&nificant distinctions between the roles of &uns and cars in (anadiansociet"# Both firearms and automobiles can be used for sociall" a!!ro%ed !ur!oses# $iewise, both ma"

cause death and inur"# Let their !rimar" uses are fundamentall" different# (ars are used mainl" as means oftrans!ortation# Jan&er to the !ublic is ordinaril" unintended and incidental to that use# Puns, b" contrast,!ose a !ressin& safet" ris in man" if not all of their functions 0arliament did not enact the -irearms Act to re&ulate &uns as items of !ro!ert"+iii &nue intrusion into provincial powersI Alberta and the !ro%incial inter%eners submit that this lawina!!ro!riatel" trenches on !ro%incial !owers and that u!holdin& it as criminal law will u!set the balance offederalism# 0ut sim!l", the issue is whether the law is mainl" in relation to criminal law# 5f it is, incidentaleffects in the !ro%incial s!here are constitutionall" irrele%ant#

5n our %iew, Alberta and the !ro%inces ha%e not established that the effects of the law on !ro%incial mattersare more than incidental# irst, the mere fact that &uns are !ro!ert" does not suffice to show that a &uncontrol law is in !ith and substance a !ro%incial matter# E=ercises of the criminal law !ower often affect!ro!ert" and ci%il ri&hts to some de&ree* Attorney)*eneral "or Britis/ Columia v( Attorney)*eneral "orCanaa, C19'7D A#(# '68 +0#(## econd, the Act does not si&nificantl" hinder the abilit" of the !ro%inces tore&ulate the !ro!ert" and ci%il ri&hts as!ects of &uns

Third, the most im!ortant urisdictional effect of this law is its elimination of the abilit" of the !ro%inces tonot ha%e an" re&ulations on the ownershi! of ordinar" firearms# The !ro%inces ar&ue that it is in their !ower tochoose whether or not to ha%e such a law# B" tain& o%er the field, the federal &o%ernment has de!ri%ed the!ro%inces of that choice# Assumin& +without decidin& that the !ro%incial le&islatures would ha%e theurisdiction to enact a law in relation to the !ro!ert" as!ects of ordinar" firearms, this does not !re%ent0arliament from addressin& the safet" as!ects of ordinar" firearms# The double aspect doctrine!ermitsboth le%els of &o%ernment to le&islate in one urisdictional field for two different !ur!oses ourth, as discussed abo%e, this law does not !reci!itate the federal &o%ernment)s entr" into a new field#Pun control has been the subect of federal law since (onfederation# This law does not allow the federal&o%ernment to si&nificantl" e=!and its urisdictional !owers to the detriment of the !ro%inces

$5;. The licensin& and re&istration !ro%isions in the -irearms Actdo not constitute an infrin&ement of the urisdictionof the $e&islature of Alberta with res!ect to the re&ulation of !ro!ert" and ci%il ri&hts !ursuant to s# 92+1' of theConstitution Act, 1867# TheAct is a %alid e=ercise of 0arliament)s urisdiction o%er criminal law !ursuant to s# 91+27#

70 ;32/:3/31& 1F 91:2 A&2: 2/:'/:

The main issue here is YYYYYYYYYYYYY# 5n order to address this issue, we must en&a&e in the di%ision of !owersanal"sis# There are two sta&es to this anal"sis, the first bein& to determine the !ith and substance of the law# Thesecond ste! is to classif" that essential character b" reference to the heads of !ower under the Constitution Act, 1867inorder to determine whether the law comes within the urisdiction of the enactin& &o%ernment#

Note, here, that the !resum!tion of constitutionalit" means that Cthe !art" challen&in& the ActD is re@uired to demonstratethat the Act does not fall within the urisdiction of Cthe enactin& bod"D + N% Boar o" Censors v( cNeil

2/9 . 9ith and 2ubstance Analysis

- To determine the !ith and substance, two as!ects of the law must be e=amined* the !ur!ose of the enactin& bod", andthe le&al effect of the law

9urpose- 5n order to determine the %alidit" of le&islation K, first must identif" its main purpose- To do this, we ma" e=am* the !reamble, the mischief that the law is tr"in& to rid and, o!timall", reference to e=trinsicmaterial +orgentaler#- Gf course, howe%er, we must loo to true !ur!ose, not necessaril" the stated !ur!ose +Canaian


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- The determination of which head of !ower a !articular law falls under is not an e=act science# 5n a federal s"stem,each le%el of &o%ernment can e=!ect to ha%e its urisdiction affected b" the other to a certain de&ree +i#e# incidentaleffects are !ermitted +Papp v Papp# owe%er, in li&ht of the e=hausti%e !rinci!le, we must be able to characteri mi&ht su!!ort it, then disre&ard and then show wh" those heads don)t wor b" distin&uishin& the cases#inish u! b" showin& how it falls under the head in "our head# .se the headin&s below to &uide the anal"sisD

C>EOEOBE>* (i) Mhere there is o%erla! between two heads of !ower, it is for the court to identif" the JGO5NANTEAT.>E of the im!u&ned statute# Althou&h there ma" be incidental intrusion into another head o%er which the rele%ant&o%ernment has no control, incidental intrusions are allowed + see, e# C/atteree +ii5ncidental intrusion)s are oD

'onclusion- The law is +intraHultra %ires +0arliamentHthe !ro%incial le&islature

1&2 BA:I2.

- Ancillary purpose (and the rational connectionEnecessary test) (i% rele=ant)- /he double aspect doctrine- 'riteria o% choice-


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'harter o% :ights and Freedo"s

0 5A&CAC

- Two issues* distribution of !owers re* lan&ua&e and constitutional !rotection of lan&ua&e

.istriution o" powers- Not a head of !ower, and is not an inde!endent matter of le&islation- A law !rescribin& that a !articular lan&ua&e or lan&ua&es mustHma" be used in certain situations will be classified not asa law in relation to lan&ua&e, but as a law in relation to the institutions or acti%ities that the !ro%ision co%ers

0anguage o" statutes(onstitutional re@uirements

- Gnl" e5plicit&uarantee of lan&ua&e ri&hts in the (onstitution Act, 1867 is contained in s - 1'' onl" applies to legislative oies an courts o" t/e "eeral government an o" Dueec, and re@uires that statutesof the federal 0arliament and ?uebec $e&islature to be !rinted in both lan&ua&es it also !ermits either En&lish or renchto be used in debates in the ouses of the federal 0arliament and ?uebec $e&islature it re@uires En&lish and rench tobe used in the records and ournals to those houses CNote* doesn)t a!!l" to $e&islatures and courts of an" !ro%inceother than ?uebecD- But see s * o% the Banitoba Act, 87++use of En&lish and rench in $e&islature and courts of Oanitoba on similarterms to s 1''- The (harter of >i&hts, !art 5 of the (onstitution Act, 1982, includes as ss 16-2', a %ariet" of lan&ua&e !ro%isions- 2s 7-D apply to &ew runswic, so that NB is now in a similar !osition to ?uebec and Oanitoba- Thus, the federal 0arliament, the ?uebec $e&islature, the Oanitoba $e&islature and the New Brunswic $e&islature areeach subect to a constitutional re@uirement that their statutes must be !rinted and !ublished in both En&lish andrench

?uebec)s (harter of the rench $an&ua&e

- 5nA)* o" Dueec v Blakie, it was decided that unofficial En&lish translations did not meet the s 1'' re@uirement#'nactmentof the law in En&lish and rench was re@uired

Oanitoba)s Gfficial $an&ua&e Act

- That Act !ro%ided that the En&lish lan&ua&e onl" shall be used in the records and ournals of the $e&islatures, and in!leadin& and !rocess in Oanitoba courts# 5n effect, an attem!t to re!eal most of s 2' of Oanitoba Act# 5n !e anitoa

0anguage !ig/ts case, held that statute was in%alid#

5ncor!oration b" reference

- Peneral rule is that where a statute maes reference to another document, so as to incor!orate it, then, if there is aconstitutional re@uirement that the incor!oratin& statute be in both lan&ua&es, the re@uirement will a!!l" to theincor!orated document as well#- But there are e=ce!tions

Jele&ated le&islation

- 1'' re@uirements, as a &eneral rule, a!!l" to dele&ated le&islation as well as to statutes#- There are e=ce!tions to this too#

0anguage o" courts(onstitutional re@uirements

- rench or En&lish ma" be used b" an" !erson in an" !leadin& or !rocess in or issuin& "romany(ourt of (anada, andin or from all or an" (ourts of ?uebec* s 1''- ee also s 2' of Oanitoba Act re* Oanitoba and s 19+2 of (harter re* New Brunswic 3 same &uarantee

$an&ua&e of !rocess

- (an be in either En&lish or rench

0anguage o" government 16 of (harter*


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- 1'' +(onstitution Act 1867 and s 2' +Oanitoba Act do not &o be"ond le&islati%e bodies and courts# But s 16 and s24 of (harter do- The section maes En&lish and rench the official lan&ua&es of (anada and NB- Also confers En&lish or rench e@ualit" of statues as to their use in all institutions of 0arliament and of the &o%ernmentof (anada

24 of (harter*

- s 16 doesn)t deal with communications bHw &o%ernment and !ublic, but this section does- 5m!oses an obli&ation on &o%ernment to !ro%ide bilin&ual ser%ices to the !ublic

0anguage o" commerce- None of the lan&ua&e ri&hts in the (onstitution of (anada !rotects the use of the En&lish or rench lan&ua&e incommercialH!ri%ate settin&s# But statutor" lan&ua&e re@uirements ma" offend the &uarantee of freedom of e=!ression ins 2+b of the (harter of >i&hts

0anguage o" eucation 9', (onstitution Act 1867

- (onfers on !ro%incial le&islatures the !ower to maes laws in relation to education, and the ancillar" !ower o%erlan&ua&e of instruction in the schools# But if a !articular lan&ua&e of instruction was a ri&ht or !ri%ile&e of se!arateschools in a !articular !ro%ince at the time of confederation, then the !ro%ince would be disabled from com!ellin& suchschools to instruct in a different lan&ua&e

2' of (harter

- ection 2' confers u!on citii&hts

- The (harter contains an e@ualit" &uarantee# The 5ndian Act liel" does not %iolate the (harter, b" reason of its use ofthe word 5ndian

Provincial legislative power- The &eneral rule is that !r o%incial laws a!!l" to 5ndians and lands reser%ed for the 5ndians, so lon& as the law is inrelation to a matter comin& within a !ro%incial head of !ower- B.T there are e=ce!tions to the &eneral rule*

+1 in&lin& out+2 5ndianness+' 0aramountc"+ Natural >esource A&reements+ ection '

%ection 88 o" t/e >nian Act- ection 88 maes clear that !ro%incial laws of general applicationa!!l" to 5ndians- The section maes no reference to lands reser%ed for the 5ndians, but it does e=tend to 5ndians on reser%e- ection 88 o!erates as a federal ado!tion, or incor!oration b" reference, of !ro%incial laws, main& the !ro%incial lawsa!!licable as !art of federal law- s 88 a!!lies to !ro%incial laws which affect 5ndianness b" im!airin& the status or ca!acit" of 5ndians +.ick v =/e Dueen- Note !aramountc" and treat" e=ce!tions

Nature o" aoriginal rig/ts >eco&nition of abori&inal ri&hts

- Abori&inal ri&hts that ha%e not been e=tin&uished are reco&ni


22/46


Abori&inal self-&o%ernment

- The abori&inal ri&ht of self-&o%ernment must e=ist b" %irtue of the fact that abori&inal !eo!le were li%in& in self-&o%ernin& communities before the arri%al of Euro!eans#- Accordin& to Pamaewoncase, the abori&inal ri&ht of self-&o%ernment e=tends onl" to acti%ities that too !lace beforeEuro!ean contact, and then onl" to those acti%ities that were an inte&ral !art of the abori&inal societ" +i#e# must meet thean er Peettest- That test is o%erl" strict, o&& sa"s

Abori&inal title

- Abori&inal T5T$E is the ri&ht to e=clusi%e occu!ation of land, which !ermits abori&inal owners to use the land for a%ariet" of !ur!oses- The (( in Caler and *uerinreco&ni


23/46


- The maor effect of the (harter has been the e=!ansion of udicial re%iew# The (harter adds a new set of constitutional!ro%isions that will in%alidate inconsistent laws- Qudicial re%iew is also more !olic" dri%en &i%en the %a&ueness of the terms of the (harter

:a&ueness of conce!ts

- Because of the %a&ueness of the (harter, the role of law, law"ers and ud&es in the !ublic life of the countr" has &reatl"increased#- The (( has willin&l" embraced new !owers conferred on it b" this %a&ue- The !eriod of udicial acti%ist since 1982 has been described as the (harter re%olution- But udicial re%iew on (harter &rounds rarel" defeats a desired le&islati%e obecti%e# After a law is struc down b" the(ourt, the mechanisms of ss 1 and '' t"!icall" lea%e room for the law to be r e!laced with another %ersion that still carriesout the le&islati%e obecti%e, and most of the time a re!lacement law is in fact enacted

The role of s 1

- Because of s 1, udicial re%iew of le&islation under the (harter of >i&hts is a 2 sta&e !rocess# The first sta&e of udicialre%iew is to determine whether the challen&ed law dero&ates from a (harter ri&ht +if it does not, then the re%iew is o%er,and the law must be u!held# 5f the law does dero&ate from a (harter ri&ht, then the second sta&e is to determinewhether the law is ustified under s 1 as a reasonable limit !rescribed b" law that can be demonstrabl" ustified in a freeand democratic societ"

>ole of s ''

- The (harter includes, as s '', an o%erride !ower, which enables the 0arliament or a $e&islature to enact a law that willo%erride the &uarantees in s 2, and ss 7 3 1

.ialogue wit/ legislative ranc/The idea of dialo&ue

- The !resence in the (harter of the !ower to o%erride in s '' means that most decisions striin& down statutes on(harter &rounds can be re%ersed b" the com!etent le&islati%e bod"# or e=am!le, a !rohibition of the use of En&lish incommercial si&ns that was struc down as a breach of freedom of e=!ression was re%i%ed b" the ?uebec $e&islature,in%oin& s ''- A stud" !ublished in 1997 showed that from the ince!tion of the (harter, there had been 66 cases in which the ((had struc down a law on (harter &rounds# 4" t/e 66 cases, all ut 1J elicite some response "rom t/e competentlegislative oy, w/ic/ illustrates t/at t/e ecisions o" t/e Courts usually leave room "or a legislative response- 3t is help%ul to thin o% the 'ourtJs 'harter decisions, not as i"posing a =eto on desired legislati=e policies, butrather as starting a KdialogueL with the legislati=e branch as to how to best reconcile the indi=idualistic =alues o%

the 'harter with the acco"plish"ent o% social and econo"ic policies %or the bene%it o% the co""unity as a while

econd loo cases

- illscase shows how conce!t of dialo&ue used to show deference to le&islati%e decision#- ills shows that the idea of dialo&ue indicates that when a le&islatureH0arliament has re%ised and re-enacted a law thatthe courts ha%e found unconstitutional, the (ourt is liel" to u!hold the second attem!t C.nderl"in& this is the idea that,as the le&islatures and 0arliament re!resent the will of the !eo!le, the" are in a better !osition to sort out such !roblemsD- But there are e=am!les of cases where courts ha%e re%iewed 0arliamentH a le&islature)s second attem!t at le&islation,and concluded the law was still in%alid#

- Another wa" in which the conce!t of dialo&ue has affected the reasonin& and results of constitutional cases is the(()s willin&ness to sus!end a declaration of in%alidit" after a findin& that a law is unconstitutional# The dialo&ue conce!trational in this case is sim!l" that in man" cases where the (ourt has found a law to be unconstitutional, the (ourt would!refer the le&islature to desi&n the a!!ro!r iate remed"#- The !rinci!le of de"ocracyencoura&es remedies that allow the democratic !rocess of consultation and dialo&ue tooccur#- Qudicial res!ect for the autonom" of the other branches of &o%ernment would also ar&ue for restrain in craftin& orders tocom!el the e=ecuti%e branch to rectif" (harter breaches +i#e# 2eparation o% powers

Political Guestions octrine- This is a . doctrine +re* usticiabilit" that (anada has not acce!ted

C/aracteriation o" laws- Two sta&es*

+1 Jetermine whether the challen&ed law abrid&es a (harter ri&ht*a# irst, characterii&hts to determine whether it has beenabrid&ed b" the challen&ed law

+2 1 anal"sis if a!!licable- The focus in this !art is on +1+a- 5f the !ur!ose of a law is to abrid&e a (harter ri&ht, then the law will be unconstitutional# 5f the effect of the law is to

abrid&e a (harter ri&ht, then the law will be unconstitutional +unless it is sa%ed b" s 1 3 distin&uish between !ur!ose andeffect

0ur!ose or effect

- A law will offend the (harter if either its !ur!ose or its effects is to abrid&e a (harter ri&ht- $e&islation with an in%alid !ur!ose can)t be sa%ed b" s 1 +Big .rug art- B.T it)s the effect that is normall" at issue

Tri%ial effects

- Mhere the effect of a law on a (harter ri&ht is tri%ial or insubstantial, there is no breach of the (harter +! v #ones

>nterpretation o" C/arter0ro&ressi%e inter!retation

- A constitution is liel" to remain in force for a lon& time and is difficult to amend, which calls for a fle=ible inter!retation,

so that the constitution can be ada!ted o%er time to chan&in& conditions- A fle=ible inter!retation that allows the constitution to be ada!ted o%er time to chan&in& conditions is what !ro&ressi%einter!retation refers to

Penerous inter!retation

- A%oidin& a narrow and technical construction of the constitution, b" &i%in& it a lar&e and liberal inter!retation

0ur!osi%e inter!retation


24/46


0rocess as !ur!ose

- 5s a !rocess based theor" suitable for &uidin& Q#># 5#e# focussin& on the fairness of !rocedures taen rather thansubstanti%e outcomes# o&& thins not#

%ources o" interpretation- There are a number, includin& some international instruments, le&islati%e histor" and, of course, !recedent

Priority etween "eeral an C/arter grouns- Mhen a law is challen&ed on both federal and (harter &rounds, it is the f ederal &round that is the more fundamental ofthe two, and that ou&ht to tae !riorit" o%er the (harter &round

40 A9953'A/31& 1F '$A:/:. s *, 'onstitution Act, D8*

A(T5GN +whether le&islati%e, administrati%e or udicial which de!ends for its %alidit" on statutor" authorit"#- There are man" e=am!les which illustrate that bodies or !ersons !ossessin& statutor" authorit" are often inepenentof the federal or !ro%incial &o%ernments#- The (harter a!!lies to the e=ercise of statutor" authorit" re&ardless of whether the actor is !art of the &o%ernment or iscontrolled b" the &o%ernment 3 it is the e=ertion of a !ower of com!ulsion &ranted b" statute that causes the (harter toa!!l"#

- But there are cases which de%iated from that !osition# till, o&& sa"s that this is a re@uirement for a bod"H!erson whois e=ercisin& statutor" authorit" to be bound b" the (harter# Gne de%iation was in 'lrige, where it was held that the(harter was a!!licable des!ite the absence of an" !ower of com!ulsion +o&& disa&rees wH the case 3but o&& isnZt t helaw#- o, if there is an entit" e=ercisin& statutor" !owers of com!ulsion, then the" will be subect to (harter +see, for e#,%laig/t* The result of the decision in %laig/tis that some adudicati%e bodies, such as administrati%e tribunals andlabour adudicators, are bound b" the (harter,

Po%ernmental action

- 5f an entit" is part o" t/e government, t/en t/e C/arter will orinarily applyto all of its actions#- (harter a!!lies to &o%ernment action taen under !rero&ati%e !owers +common law !owers !ossessed onl" b"&o%ernment and common law !owers !ossessed b" e%er"one- 3nstitutions controlle'by go=ern"ent (agents). ere, not &o%ernmental actors ust because an or&ani


25/46


Eldrid&e % B(FA'/2* A &rou! of deaf indi%iduals sou&ht a declaration that the failure to !ro%ide !ublic fundin& for si&n lan&ua&einter!reters for the deaf when the" r ecei%ed medical ser%ices %iolated s#1 of the (harter#322. 5s the charter enforceable a&ainst hos!itals, !articularl" with re&ards to the wa" the" deli%er medical ser%ices:A21&3&C.There is no @uestion that the C/artera!!lies to !ro%incial le&islation#

There is no doubt that the C/arteralso a!!lies to action taen under statutor" authorit"

A !rimar" @uestion in the !resent case is whether the alle&ed breach of s# 1+1 arises from the im!u&ned le&islation

itself or from the actions of entities e=ercisin& decision-main& authorit" !ursuant to that le&islation# 5t is first necessar" to decide whether the le&islation im!u&ned in the !resent a!!eal can be inter!reted in conformit"

with the C/arter( (ounsel for the a!!ellants !ro!osed an alternati%e ar&ument ain to the framewor set out in %laig/t#he su&&ested that both statutes could be read to conform with s# 1+1# .nder this theor", it is not the le&islation that isconstitutionall" sus!ect, but rather the actions of dele&ated decision-maers in a!!l"in& itAssumin& that the failure to !ro%ide si&n lan&ua&e inter!reters in medical settin&s %iolates s# 1+1 of the C/arterin

some circumstances, 5 do not see how the eical an @ealt/ Care %ervices Actcan be inter!reted as mandatin& thatresult +i#e# (ounsel for a!!ellant is ri&htThe issue is whether the (harter a!!lies to the oyem!lo"in& the Act(

T"!icall", courts see to determine if the entit" +e# hos!ital is itself a &o%ernment bod" for the !ur!oses of s# '2#

This in%ol%es an in@uir" into whether the entit" can, either b" its %er" nature or b" %irtue of the de&ree of &o%ernmentalcontrol e=ercised o%er it, !ro!erl" be characteri


26/46


-reeom o" !eligion

reedom of reli&ion

- $eadin& case is Big .rug art- Jefinition of reli&ion offered in this case* /he essence o% %reedo" o% religion is the right to entertain suchreligious belie%s as a person chooses, the right to declare religious belie%s openly and without %ear o% hindranceor reprisal, and the right to "ani%est religious belie% by worship and practice or by teaching and disse"inationL- s *(a) protects religious practices and belie%s

unda" obser%anceHunda" sho!!in& cases

- 5ssue in these cases was whether !eo!le should ha%e the abilit" to mae a !rofit on unda"s challen&es were brou&htb" com!anies who wished to o!en their stores on unda"s in order to ma=imi0GE was to com!el the obser%ance of (hristianabbath, which is not com!atible wH 2+a# The $ord)s Ja" Act, in its !ur!ose and effects, infrin&es this &uarantee, and isnot ustifiable under s# 1# The ratio of Big is this* The &uarantee of freedom of conscience and reli&ion !re%ents the&o%ernment from com!ellin& indi%iduals to !erform or abstain from !erformin& otherwise harmless acts because of thereli&ious si&nificance of those acts to others#- But ee 'wars Bookscase# The (( u!held a law that !rohibited retail stores from o!enin& on unda" based on

its secular!ur!ose# The law was u!held des!ite it)s EE(T of im!osin& economic burden on those retailers whoobser%ed abbath on a da" other than unda"# T he secular !ur!ose of !ro%idin& a common !ause da" was sufficientl"

im!ortant to ustif" a limit on freedom of reli&ion# The ratioof 'wars Booksis this*K>eli&ious freedom is notnecessaril" infrin&ed when a statutor" obli&ation coincides with the dictates of a !articular reli&ion# Mhen freedom ofreli&ion 5 infrin&ed, it ma" be a ustifiable limit in li&ht of +1 an ameliorati%e obecti%e held b" the &o%ernment, and +2e%ident efforts b" the &o%ernment to accommodate the ri&hts of those affected- 5n short, the unda" closin& cases establish that there is a constitutional obli&ation under s 2+a to accommodate those!ersons whose reli&ion calls for obser%ance of a abbath on a da" other than unda"

Tolerance of other reli&ious !ractices

) Big .rug artindicated that freedom of reli&ion would not !rotect minorit" reli&ious &rou!s in such !ractices whichinure his or her nei&hbours# But that has been overrule(

- The idea that freedom of reli&ion authori, !art of the order could be ustified under s 1 as a measure to remed" an anti-semeticen%ironment in the school +the order bein& mo%in& him to a non-teachin& !osition#- The ambit of s 2+a was e=!anded e%en more in %ynicat Nort/west v Amselem# The (ourt defined !rotected reli&ious!ractice in an e=traordinaril" broad fashion* the practice need not be part o% an est ablished belie% syste", or e=en a

belie% syste" shared by so"e others? it could be uniue to the clai"ant# /he practice need not be percei=ed asobligatory by the clai"ant? K=oluntary eE ,which he did#

&ote. 5t seems that while s 2+a is %er" broad, s 1 cuts bac its sco!e, !articularl" where s 2+a is bein& relied u!on b"the a!!licant in a situation where the", themsel%es, are at ris of har m, or there is harm to others, whether in the form of!h"sical or !s"cholo&ical harm0

Mai%er of reli&ious !ractice

- Bruker v arcovitindicates that "ou can contract to withhold a reli&ious !racticeHbelief, althou&h %ynicat Nort/westindicates "ou cannot

>eli&ion in !ublic schools

- eeHyleererg andCanaian Civil 0ierties Associationcases 3 it is unconstitutional to im!ose (hristian beliefs on allstudents, e%en if non-(hristian students can o!t out of reli&ious !ractices

"ndicat Northcrest % Amselem &ew 'efinition of 2religion3 pro+i'e' 4 i.e. Court sets out the test for 'eter*iningwhether what a clai*ant clai*s is a 2religious3 belief or practice pursuant to s &)!&a! is in fact protecte' b( thatsection!FA'/2. The cases which are the subect of this a!!eal in%ol%e a reli&ious claim b" the a!!ellants for the settin& u! of asuccah for nine da"s a "ear in the !ursuit of their reli&ious beliefs on their co-owned !ro!ert" under the ?uebec C/artero" @uman !ig/ts an -reeoms, >##?#, c# (-12 +the ?uebec C/arter# The ?uebec courts denied the claim3222. +1 Mhether the clauses in the b"-laws of the declaration of co-ownershi!, which contained a &eneral!rohibition a&ainst decorations or constructions on one)s balcon", infrin&e the a!!ellants) freedom of reli&ion !rotectedunder the ?uebec C/arter+2 if so, whether the refusal b" t he res!ondent to !ermit the settin& u! of a succah is ustifiedb" its reliance on the co-owners) ri&hts to eno" !ro!ert" under s# 6 of the ?uebec C/arterand their ri&hts to !ersonalsecurit" under s# 1 thereof and +' whether the a!!ellants wai%ed their ri&hts to freedom of reli&ion b" si&nin& thedeclaration of co-ownershi!#:A21&3&C.0efinition of free'o* of religion

- Mhat is the definition and content of an indi%idual)s !rotected ri&ht to reli&ious freedom under the ?uebec +or the(anadian C/arter This (ourt has lon& articulated an e=!ansi%e definition of freedom of reli&ion, which re%ol%es aroundthe notion of !ersonal choice and indi%idual autonom" and freedom- Jicson (Q in Big first defined reli&ion* The essence of the conce!t of freedom of reli&ion is the ri&ht to entertainsuch reli&ious beliefs as a !erson chooses, the ri&ht to declare reli&ious beliefs o!enl" and without fear of hindrance orre!risal, and the ri&ht to manifest reli&ious belief b" worshi! and !ractice or b" teachin& and dissemination- Oust focus on subjecti=e!erce!tions of reli&ion 3 deter"ining what the indi=idualsincerely belie=es- Gur (ourt)s !ast decisions and the basic !rinci!les underl"in& freedom of reli&ion su!!ort the %iew that freedom ofreli&ion consists of the freedom to undertae !r actices and harbour beliefs, ha%in& a ne=us with reli&ion, in which anindi%idual demonstrates he or she sincerel" belie%es or is sincerel" undertain& in order to connect with the di%ine or as a


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function of his or her s!iritual faith, irres!ecti%e of whether a !articular !ractice or belief is re@uired b" official reli&iousdo&ma or is in conformit" with the !osition of reli&ious officials# Both obli&ator" as well as %oluntar" e=!ressions of faithshould be !rotected- A clai"ant need not show so"e sort o% objecti=e religious obligation, reuire"ent or precept to in=oe %reedo"o% religion# uch an a!!roach would be inconsistent with the underl"in& !ur!oses and !rinci!les of the freedomem!hasi##A# 2444, c#T-6#Accordin& to the &o%ernment, the uni%ersal !hoto re@uirement was ado!ted to minimi


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utterites, includin& the members of the Milson (olon" in southern Alberta, belie%e that it is contrar" to the econd(ommandment to ha%e their !hoto willin&am

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Con Law NCA