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Reference re Secession of Quebec, [1998] 2
S.C.R. 217 was an opinion of the Supreme
Court of Canada reardin the !ea!it", under
both Canadian and internationa! !aw, of a
uni!atera! secession of Quebec from Canada.
#oth the Quebec o$ernment and the Canadian
o$ernment stated that the" were most p!eased
with the Supreme Court%s opinion, pointin to
different sections of the ru!in.
Contents [hide]
1 #ac&round
2 Questions addressed
' Submissions
( )pinion
(.1 Riht to secede under Canadian !aw
(.2 Rihts to secede under internationa! !aw and
se!f*determination
(.' +hich !aw app!ies in Canada
- Reaction of Quebec
Reaction of the federa! o$ernment
7 See a!so
8 References
9 /0terna! !in&s
#ac&round[edit]
o!!owin the e!ection of a maorit" of 3arti
Qu4b4cois 53Q6 embers of the ationa! ssemb!" 5s6 with (1.'7: of the popu!ar
$ote in the 197 pro$incia! e!ection, the part"
formed a o$ernment and, in 198;, he!d a
referendum. <he o$ernment of Quebec as&ed
the pro$ince%s popu!ation if it shou!d see& a
mandate to neotiate so$ereint" for Quebec
coup!ed with the estab!ishment of a new po!itica!
and economic union with Canada. <he
referendum resu!ted in the defeat of the
so$ereint" option with -9.-: $otin no on
so$ereint". <he 3Q was ne$erthe!ess re*
e!ected in 1981, this time promisin not to ho!d a
referendum.
=n 1982, the federa! o$ernment petitioned the
3ar!iament of the >nited ?indom in @ondon to
amend Canada%s constitution so that in the
future, a!! further amendments wou!d ta&e p!ace
b" means of a process of consent in$o!$in on!"
the 3ar!iament of Canada and the !eis!atures of
the pro$inces 5se$era! pro$inces obected6. >p
unti! this point, a!! amendments had ta&en p!ace
b" means of cts of the 3ar!iament at
+estminster, since the Canadian constitutionwas, strict!" spea&in, a simp!e statute of that
3ar!iament.
Co!!oAuia!!", the switch to a domestic
amendment procedure was &nown as patriation.
<he particu!ar formu!a for amendments that was
adopted in 1982 was opposed b" the then*
o$ernment of Quebec, which a!so opposed the
adoption of other constitutiona! chanes made at
the same time, such as the Canadian Charter ofRihts and reedomsBa!thouh this opposition
was not necessari!" based on a reection of the
content of these chanes, as opposed to the
manner of their adoption, and the fai!ure to
inc!ude amendments specific to Quebec in the
pac&ae. !so, Quebec had a!read" at that time
a more comp!ete Charter that was adopted in
197-.
<wo further attempts were made at amendinthe Canadian constitution in 1987*199; and
1992 in a manner that, it was hoped, wou!d ha$e
caused the Quebec !eis!ature to adopt a motion
supportin the re$ised constitution. <hese fai!ed
pac&aes of constitutiona! reforms were &nown
as the eech @a&e ccord and the
Char!ottetown ccord. <hus, in the mid*199;s,
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there was a widespread sense that the
Constitution of Canada was not fu!!" !eitimate,
because it had not "et recei$ed the forma!
appro$a! of Quebec.
=n 199(, the 3arti Qu4b4cois was re*e!ected and
announced that it wou!d be initiatin a second
referendum to ta&e p!ace in 199-. <his time, the
Auestion was on so$ereint" with an optiona!
partnership with Canada. <he no side won b"
on!" a narrow marin. 3rior to this referendum,
the ationa! ssemb!" of Quebec adopted a bi!!
re!atin to the future of Quebec which !aid out
the Quebec%s p!an for secession in case of a
winnin referendum.
=n response to the bi!! and the referendum resu!t,
se$era! !ea! actions were initiated b" opponents
to the independence of Quebec, Auestionin the
!ea!it" of secession. =n 199, 3arti Qu4b4cois
!eader @ucien #ouchard announced that his
o$ernment wou!d ma&e p!ans to ho!d another
referendum when he was confident that the
winnin conditions were there, pointin to the
po!itica! cost of !osin a third referendum. =n
reaction to #ouchard%s stated p!ans, 3rime
inister Dean Chr4tien initiated a reference toanswer the !ea!it" of a uni!atera! dec!aration of
independence from a Canadian pro$ince.
Questions addressed[edit]
<he Eo$ernor in Counci! 5effecti$e!", the Cabinet
of Canada6 submitted the reAuest for an
ad$isor" opinion on the fo!!owin three specific
AuestionsF
>nder the Constitution of Canada, can the
ationa! ssemb!", !eis!ature, or o$ernment of
Quebec effect the secession of Quebec from
Canada uni!atera!!"
Goes internationa! !aw i$e the ationa!
ssemb!", !eis!ature, or o$ernment of Quebec
the riht to effect the secession of Quebec from
Canada uni!atera!!" =n this reard, is there a
riht to se!f*determination under internationa!
!aw that wou!d i$e the ationa! ssemb!",
!eis!ature, or o$ernment of Quebec the riht to
effect the secession of Quebec from Canada
uni!atera!!"
=n the e$ent of a conf!ict between domestic and
internationa! !aw on the riht of the ationa!
ssemb!", !eis!ature, or o$ernment of Quebec
to effect the secession of Quebec from Canada
uni!atera!!", which wou!d ta&e precedence in
Canada[1]
Submissions[edit]
<here were an unprecedented 1- inter$eners.
Howe$er, the Quebec o$ernment refused to
ta&e part and was not represented. =n its p!ace
the Court appointed ndr4 Do!icoeur as an
amicus curiae to arue for the so$ereintist side.
<he federa! o$ernment%s submission arued
that the on!" wa" a pro$ince cou!d secede from
Canada wou!d be throuh a constitutiona!
amendment. )n!" an amendment throuhsection (- wou!d a!!ow for uni!atera!
amendments. Howe$er, that section does not
app!" here. <o attempt to secede uni!atera!!"
wou!d $io!ate the constitution on two rounds.
irst, it wou!d $io!ate the ru!e of !aw b" inorin
the authorit" of the constitution as supreme !aw
of the countr", and second, it wou!d $io!ate
Canadian federa!ism b" actin with powers on!"
a!!ocated to the federa! o$ernment.
<he amicus curiae%s submission arued se$era!
points. irst, the" arued that the reference was
in$a!idI the Auestion is pure!" a po!itica! one and
thus is outside the authorit" of the Court to
answer under section -2 of the Supreme Court
ct. <he" attempted to ana!oiJe the use of the
>S po!itica! Auestion doctrine to the Canadian
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of the Supreme Court. 3remier #ouchard stated
pub!ic!" that the court had $a!idated the
referendum strate" that the so$ereintists had
adopted with Ren4 @4$esAue. Quebec was most
satisfied when the court made it c!ear that the
Auestion of Quebec%s po!itica! status was abo$e
a!! a po!itica! Auestion, and not a !ea! one. =t
a!so !i&ed the fact that the Supreme Court made
it c!ear that the o$ernment of Canada and that
of the other pro$inces wou!d ha$e to neotiate
after a winnin referendum on secession. <his
wou!d ma&e a uni!atera! dec!aration of
independence unnecessar".
Reaction of the federa! o$ernment[edit]
<he Canadian o$ernment of Dean Chr4tienstated that it was p!eased with the court%s
opinion.[citation needed] <he Supreme Court
had made it c!ear that Quebec cou!d not dec!are
independence uni!atera!!". n" ob!iation of
Canada to neotiate with Quebec was
conditiona! on the so$ereintists% as&in a c!ear
Auestion within the conte0t of a referendum. <he
o$ernment of Canada subseAuent!" drafted the
C!arit" ct, which 3ar!iament then enacted.
R. $. orenta!er[1] was a decision b" the
Supreme Court of Canada in$a!idatin a
pro$incia! attempt to reu!ate abortions in
Canada. <his fo!!owed the 1988 decision R. $.
orenta!er, which had struc& down the federa!
abortion !aw as a breach of section 7 of the
Canadian Charter of Rihts and reedoms. =n
199', the pro$incia! reu!ations were ru!ed to be
a crimina! !aw, which wou!d $io!ate the
Constitution ct, 187. <hat ct assins crimina!
!aw e0c!usi$e!" to the federa! 3ar!iament.
Contents [hide]
1 #ac&round
2 Ru!in
' Commentar"
( References
- See a!so
#ac&round[edit]
Ha$in won his case in R. $. orenta!er,
abortion rihts acti$ist Henr" orenta!er
p!anned to open an abortion c!inic in o$a
Scotia. <he pro$incia! o$ernment responded b"
passin !eis!ation that wou!d out!aw such c!inics
5as a pro$incia! offence6 and !imit abortions to
reconiJed hospita!s. <his reu!ation was not
!imited to abortion but a!so co$ered !iposuction
and other proceduresI indeed, the pro$incia!
o$ernment c!aimed it was mere!" fihtin the
pri$atiJation of the hea!th care s"stem 5sinceorenta!er%s c!inics were pri$ate6. <he pena!t"
set out in the !eis!ation wou!d be a fine of
between O1;,;;; to O-;,;;;. >ndaunted,
orenta!er went ahead and opened his c!inic,
supposed!" to recei$e potentia! patients for his
other c!inics outside o$a Scotia. /$entua!!",
howe$er, orenta!er informed the press that he
had indeed carried out abortions in his o$a
Scotia c!inic. <he o$ernment chared him for
this, but orenta!er cha!!ened the
constitutiona!it" of the !aw.
Ru!in[edit]
>pon recei$in the issue, the Supreme Court
dec!ined to decide the case on the basis of the
Charter and !imited itse!f to the federa!ism issue.
/$en here, the Court !imited itse!f b" not
considerin the issue of whether abortion re!ates
to peace, order and ood o$ernment, which
wou!d definite!" ma&e it federa! urisdiction.
Dustice Dohn Sopin&a, writin for a unanimousCourt, simp!" areed with the arument that
these specific abortion reu!ations, rather than
bein a $a!id pro$incia! reu!ation of hospita!s
and medicine, instead constituted an in$a!id
crimina! !aw. s a resu!t, a!! of these reu!ations
were struc& down, inc!udin the ones not dea!in
with abortion.
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<he Court bean b" notin that the !eis!ation
was a!wa"s meant to taret specific ser$ices,
and abo$e a!! e!se abortion. =n considerin the
!aw%s pith and substance, this raised the
Auestion of whether the pro$incia! o$ernment%strue moti$es for enactin the !eis!ation was not
to reu!ate hospita!s or medicine, but to !imit
what it saw as the socia!!" undesirab!e conduct
of abortion 5which wou!d be a crimina! !aw
function6. <he Court a!so noted that in
orenta!er $. <he Queen 5197-6, it had been
found that the abortion !aw !ater struc& down in
1988 had been crimina! !aw, and as such it had
been appropriate!" passed b" 3ar!iament as
opposed to b" a pro$incia! !eis!ature. <his a!so
raised the Auestion of whether abortion !aws are
desined to dea! with socia!!" undesirab!e
conduct. <he Court then Auoted o$a Scotia%s
Hansard, which reinforced the notion that the
pro$incia! o$ernment saw orenta!er%s c!inics
as a pub!ic e$i! which shou!d be e!iminated and
minimiJed the arument that the !aw had been
meant to combat pri$atiJation.
<he Court obser$ed that the fines were serious
pena! considerations, a t"pica! feature of
crimina! !aw.
<he pro$incia! reu!ations were a!so ru!ed to be
$er" simi!ar to the federa! abortion !aw struc&
down in 1988 5a!thouh o$a Scotia did not
resurrect the <herapeutic bortion Committees
of the federa! !aw6. <he simi!arities were
prob!ematic to the pro$incia! !aw, since
simi!arities between pro$incia! !aws and !aws in
the Crimina! Code of Canada ha$e, in the past,
!ed to pro$incia! !aws bein struc& down as u!tra
$ires the pro$incia! o$ernments.
Commentar"[edit]
=n his boo& Constitutiona! @aw of Canada,
constitutiona! scho!ar 3eter Ho referred to this
orenta!er decision as remar&ab!e, notin
that the reu!ation of the procedures besides
abortion had been struc& down after the Court
had referred to them as a smo&escreen for the
true purpose of the !eis!ation. =n Ho%s $iew,
the Court had done this under the doctrine of
co!ourabi!it", which ho!ds that a !aw desined to
!oo& !i&e it was enacted within the powers of the
re!e$ant !eis!ati$e bod", but in fact attemptin to
reu!ate a matter within another !e$e! of
o$ernment%s authorit", shou!d be struc& down.
<he Court, howe$er, had emphasiJed pith and
substance, and c!aimed that it did not emp!o"
the co!ourabi!it" doctrine in this particu!ar case.
[2]
Canada +estern #an& $. !berta [2;;7] 2 S.C.R.' is a !andmar& decision in Canadian
constitutiona! !aw b" the Supreme Court of
Canada 5SCC6 re!atin to the di$ision of powers
between edera! and 3ro$incia! !eis!ati$e
bodies.
Contents [hide]
1 #ac&round
2 <he udments be!ow
' Supreme Court Gecision
'.1 ssessin the constitutiona!it" of !eis!ation
'.2 3ith and substance
'.' =nterurisdictiona! immunit"
'.( edera! 3aramountc"
( See a!so
- References
/0terna! !in&s
#ac&round[edit]
=n 2;;;, !berta enacted chanes to its
=nsurance ct purportin to ma&e federa!!"
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chartered ban&s subect to the pro$incia!
!icensin scheme o$ernin the promotion of
insurance products. >pon the comin into force
of that ct, the #an&, toether with other
chartered ban&s, brouht an app!ication for a
dec!arationF
that their promotion of certain insurance
products authoriJed b" the #an& ct was
ban&in within the meanin of s. 9151-6 of the
Constitution ct, 187, and
that the =nsurance ct and its associated
reu!ations were constitutiona!!" inapp!icab!e to
the ban&sN promotion of insurance b" $irtue of
the doctrine of interurisdictiona! immunit" or,
a!ternati$e!", inoperati$e b" $irtue of the doctrineof federa! paramountc".
<he udments be!ow[edit]
<he tria! court dismissed the ban& app!ication
and saidF
the =nsurance ct is a $a!id e0ercise of pro$incia!
powers under P9251'6,
interurisdictiona! immunit" a!so fai!s becauseinsurance is not Lat the coreM of ban&in, and
federa! paramountc" does not app!" because
there is no operationa! conf!ict between federa!
and pro$incia! !aw.
<he appea! court reaffirmed the tria! court
decision.
Supreme Court Gecision[edit]
<he Supreme Court of Canada reaffirmed the
appea! court.
<he =nsurance ct and its associated reu!ations
app!" to the ban&sN promotion of insurance. <he
fact that 3ar!iament a!!ows a ban& to enter into a
pro$incia!!" reu!ated !ine of business such as
insurance cannot, b" federa! statute, uni!atera!!"
broaden the scope of an e0c!usi$e federa!
!eis!ati$e power ranted b" the Constitution ct,
187.
ssessin the constitutiona!it" of !eis!ation[edit]
=t was emphasiJed b" the Court that a!!
constitutiona! !ea! cha!!enes to !eis!ation
shou!d fo!!ow the same approachF
the pith and substance of the pro$incia! !aw and
the federa! !aw shou!d be e0amined to ensure
that the" are both $a!id!" enacted !aws and to
determine the nature of the o$er!ap, if an",
between them.
the app!icabi!it" of the pro$incia! !aw to the
federa! underta&in or matter in Auestion must
be reso!$ed with reference to the doctrine of
interurisdictiona! immunit".
on!" if both the pro$incia! !aw and the federa! !aw
ha$e been found to be $a!id pieces of !eis!ation,
and on!" if the pro$incia! !aw is found to be
app!icab!e to the federa! matter in Auestion, then
both statutes must be compared to determine
whether the o$er!ap between them constitutes a
conf!ict sufficient to trier the app!ication of the
doctrine of federa! paramountc".
3ith and substance[edit]
+here the constitutiona!it" of !eis!ation is bein
Auestioned in re!ation to the di$ision of powers
under the Constitution ct, 187, an ana!"sis of
its pith and substance must be underta&en. <his
ana!"sis consists of an inAuir" into the true
nature of the !aw in Auestion for the purpose of
identif"in the matter to which it essentia!!"
re!ates.[1]
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=f its pith and substance can be re!ated to a
matter that fa!!s within the urisdiction of the
!eis!ature that enacted it, the courts wi!! dec!are
it intra $ires.
=f, howe$er, it can more proper!" be said to
re!ate to a matter that is outside the urisdictionof that !eis!ature, it wi!! be he!d to be in$a!id
owin to this $io!ation of the di$ision of powers.
<he coro!!ar" to this ana!"sis is that !eis!ation
whose pith and substance fa!!s within the
urisdiction of the !eis!ature that enacted it ma",
at !east to a certain e0tent, affect matters be"ond
the !eis!atureNs urisdiction without necessari!"
bein unconstitutiona!. t this stae of the
ana!"sis, the dominant purpose of the !eis!ation
is sti!! decisi$e.
ere!" incidenta! effects wi!! not disturb the
constitutiona!it" of an otherwise intra $ires !aw.
[2]
<he pith and substance doctrine is founded on
the reconition that it is in practice impossib!e for
a !eis!ature to e0ercise its urisdiction o$er a
matter effecti$e!" without incidenta!!" affectin
matters within the urisdiction of another !e$e! of
o$ernment.[']
!so, some matters are b" their $er" nature
impossib!e to cateoriJe under a sin!e head of
powerF the" ma" ha$e both pro$incia! and
federa! aspects. <he doub!e aspect doctrine,
which app!ies in the course of a pith and
substance ana!"sis, ensures that the po!icies of
the e!ected !eis!ators of both !e$e!s of
o$ernment are respected. <he doub!e aspect
doctrine reconiJes that both 3ar!iament and the
pro$incia! !eis!atures can adopt $a!id !eis!ation
on a sin!e subect dependin on theperspecti$e from which the !eis!ation is
considered, that is, dependin on the $arious
aspects of the matter in Auestion.[(]
=n certain circumstances, howe$er, the powers
of one !e$e! of o$ernment must be protected
aainst intrusions, e$en incidenta! ones, b" the
other !e$e!. or this purpose, the courts ha$e
de$e!oped the doctrines of interurisdictiona!
immunit" and federa! paramountc".[-]
=nterurisdictiona! immunit"[edit]
<he doctrine of interurisdictiona! immunit"
reconiJes that the Canadian Constitution is
based on an a!!ocation of e0c!usi$e powers to
both !e$e!s of o$ernment, not concurrent
powers, a!thouh these powers are bound to
interact. =t is a doctrine of !imited app!ication
which shou!d be restricted to its proper !imit.[]
=nterurisdictiona! immunit" shou!d in enera! be
reser$ed for situations a!read" co$ered b"
precedent. =n practice, it wi!! be !are!" reser$ed
for those heads of power that dea! with federa!
thins, persons or underta&ins, or where in the
past its app!ication has been considered
abso!ute!" indispensab!e or necessar" to
achie$e the purpose for which e0c!usi$e
!eis!ati$e urisdiction was conferred, as
discerned from the constitutiona! di$ision of
powers as a who!e, or what is abso!ute!"
indispensab!e or necessar" to enab!e anunderta&in to carr" out its mandate in what
ma&es it specifica!!" of one urisdiction or the
other.[7]
+hi!e in theor" a consideration of
interurisdictiona! immunit" is apt for
consideration after the pith and substance
ana!"sis, in practice the absence of prior case
!aw fa$ourin its app!ication to the subect matter
at hand wi!! enera!!" ustif" a court proceedindirect!" to the consideration of federa!
paramountc".[8]
/$en in situations where the doctrine of
interurisdictiona! immunit" is proper!" a$ai!ab!e,
the !e$e! of the intrusion on the core of the
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power of the other !e$e! of o$ernment must be
considered. <o trier the app!ication of the
immunit", it is not enouh for the pro$incia!
!eis!ation simp!" to affect that which ma&es a
federa! subect or obect of rihts specifica!!" of
federa! urisdiction. <he difference between
LaffectsM and LimpairsM is that the former does not
imp!" an" ad$erse conseAuence whereas the
!atter does. =n the absence of impairment,
interurisdictiona! immunit" does not app!". =t is
when the ad$erse impact of a !aw adopted b"
one !e$e! of o$ernment increases in se$erit"
from affectin to impairin that the core
competence of the other !e$e! of o$ernment or
the $ita! or essentia! part of an underta&in it
du!" constitutes is p!aced in eopard", and not
before.[9]
edera! 3aramountc"[edit]
ccordin to the doctrine of federa!
paramountc", when the operationa! effects of
pro$incia! !eis!ation are incompatib!e with
federa! !eis!ation, the federa! !eis!ation must
pre$ai! and the pro$incia! !eis!ation is rendered
inoperati$e to the e0tent of the incompatibi!it".
<he doctrine app!ies not on!" to cases in which
the pro$incia! !eis!ature has !eis!ated pursuant
to its anci!!ar" power to trench on an area of
federa! urisdiction, but a!so to situations in
which the pro$incia! !eis!ature acts within its
primar" powers, and 3ar!iament pursuant to its
anci!!ar" powers. =n order to trier the
app!ication of the doctrine, the onus is on the
part" re!"in on the doctrine of federa!
paramountc" to demonstrate that the federa!
and pro$incia! !aws are in fact incompatib!e b"
estab!ishin either that it is impossib!e to comp!"
with both !aws or that to app!" the pro$incia! !aw
wou!d frustrate the purpose of the federa! !aw.[1;]
<he facts[edit]
n aerodrome, reistered under the federa!
eronautics ct, was constructed on !and Joned
as aricu!tura! in the pro$ince of Quebec.
Section 2 of the Quebec ct respectin the
preser$ation of aricu!tura! !and and aricu!tura!
acti$ities 5LR3@M6 prohibited the use of !ots
in a desinated aricu!tura! reion for an"
purpose other than aricu!ture, subect to prior
authoriJation b" the Commission de protection
du territoire arico!e du Qu4bec.
Since the CommissionNs permission was not
obtained prior to constructin the aerodrome,
the Commission ordered the return of the !and to
its oriina! state pursuant to the R3@. <he
CommissionNs decision was cha!!ened on the
round that aeronautics is within federa!
urisdiction.
<he courts be!ow[edit]
<he dministrati$e <ribuna! of Quebec, the
Court of Quebec and the Superior Court of
Quebec a!! uphe!d the Commission%s decision,
but the Quebec Court of ppea! found that
interurisdictiona! immunit" prec!uded the
Commission from orderin the dismant!in of the
aerodrome.
Gecision of the Supreme Court of Canada[edit]
<he appea! was dismissed. =nterurisdictiona!
immunit" was he!d to app!" in the matter, under
a two*part test that was stated b" c@ach!in CDF
[27] <he first step is to determine whether the
pro$incia! !aw ... trenches on the protected
LcoreM of a federa! competence. =f it does, thesecond step is to determine whether the
pro$incia! !awNs effect on the e0ercise of the
protected federa! power is sufficient!" serious to
in$o&e the doctrine of interurisdictiona!
immunit".
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+hi!e R3@ is $a!id pro$incia! !eis!ation, it
is inapp!icab!e to the e0tent that it impacts the
federa! power o$er aeronautics. <he federa!
aeronautics urisdiction encompasses not on!"
the reu!ation of the operation of aircraft and
airports, but a!so the power to determine the
!ocation of airports and aerodromes. <his power
is an essentia! and indi$isib!e part of aeronautics
and, as such, !ies within the protected core of
the federa! aeronautics power.[1]
=n prohibitin the bui!din of aerodromes on
desinated aricu!tura! !and un!ess prior
authoriJation has been obtained from the
Commission, the R3@ effecti$e!" remo$ed
the tota! area of the desinated aricu!tura!
reions from the territor" that 3ar!iament ma"desinate for aeronautica! uses. <his is not an
insinificant amount of !and, and much of it is
strateica!!" !ocated.[2]
!thouh s. 2 does not steri!iJe 3ar!iamentNs
power to !eis!ate on aeronautics B the doctrine
of paramountc" wou!d permit 3ar!iament to
!eis!ati$e!" o$erride pro$incia! Jonin !eis!ation
for the purpose of estab!ishin aerodromes B, it
ne$erthe!ess serious!" affected the manner inwhich the power can be e0ercised.
=f s. 2 app!ied, it wou!d force the federa!
3ar!iament to choose between acceptin that
the pro$ince can forbid the p!acement of
aerodromes on the one hand, or specifica!!"
!eis!atin to o$erride the pro$incia! !aw on the
other hand. <his wou!d serious!" impair the
federa! power o$er a$iation, effecti$e!" forcin
the federa! 3ar!iament to adopt a different and
more burdensome scheme for estab!ishin
aerodromes than it has in fact chosen to do.
=n the appea!, it had been arued b" Quebec
that interurisdictiona! immunit" did not app!"
where a !aw raises a doub!e aspect. !thouh it
was not necessar" to decide that Auestion, it
was stated that the arument misapprehended
the doctrine of interurisdictiona! immunit"F
<he interurisdictiona! immunit" ana!"sis
presumes the $a!idit" of a !aw and focuses
e0c!usi$e!" on the !awNs effects on the core of a
federa! power.... +hat matters, from the
perspecti$e of interurisdictiona! immunit", is thatthe !aw has the effect of impairin the core of a
federa! competenc". =n those cases where the
doctrine app!ies, it ser$es to protect the
immuniJed core of federa! power from an"
pro$incia! impairment.[']
<he doctrine of federa! paramountc" wou!d not
app!" in this case.[(]
3aramountc" ma" f!ow either from the
impossibi!it" of comp!"in with both federa! and
pro$incia! !aws or from the frustration of a
federa! purpose. Here, there was no operationa!
conf!ict, since the federa! !eis!ation did not
reAuire the construction of an aerodrome and it
is possib!e to comp!" with both the pro$incia!
and federa! !eis!ation b" demo!ishin the
aerodrome.
<here was a!so no e$idence estab!ishin that afedera! purpose reardin the !ocation of
aerodromes was frustrated b" the pro$incia!
!eis!ation. <he federa! reu!ations pro$ide that
the inister responsib!e ma" determine that the
!ocation of each reistered aerodrome is in the
pub!ic interest, but the" do not disc!ose an"
federa! purpose with respect to the !ocation of
aerodromes.
Gissent[edit]
Geschamps D dec!ared that the on!" differencebetween the present case and Quebec 5ttorne"
Eenera!6 $. @acombe 5which was re!eased on
the same da"6 was that @acombe was
concerned with municipa! Jonin and C)3 with
a pro$incia! aricu!tura! Jonin scheme. She
conc!uded that there was no e$idence of an
incidenta! effect that wou!d amount to an
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impairment of the core of the federa! aeronautics
power.[-]
=mpact[edit]
<his case, toether with the concurrent case of
@acombe, has further added to the Court%s
urisprudence on Canadian federa!ism in a
sinificant manner. <here has been discussion
as to the consistenc" of these ru!ins in
comparison to pre$ious urisprudence,[] but the
Court%s tests for paramountc" and
interurisdictiona! immunit" in C)3 ha$e been
cited in subseAuent constitutiona! urisprudence,
especia!!" inF
Canada 5ttorne" Eenera!6 $. 3HS Communit"
Ser$ices Societ" 2;11 SCC ((, [2;11] ' SCR
1'( 5'; September 2;116
Quebec 5ttorne" Eenera!6 $. Canada 5Human
Resources and Socia! Ge$e!opment6 2;11 SCC
;, [2;11] ' SCR '- 58 Gecember 2;116
arine Ser$ices =nternationa! @td. $. R"an /state
ature of the doctrine[edit]
3aramountc" is re!e$ant where there is
conf!ictin federa! and pro$incia! !eis!ation. s
aor D e0p!ained in RothmansF
L
11. <he doctrine of federa! !eis!ati$e
paramountc" dictates that where there is an
inconsistenc" between $a!id!" enacted but
o$er!appin pro$incia! and federa! !eis!ation,
the pro$incia! !eis!ation is inoperati$e to the
e0tent of the inconsistenc"....[1]
M
C!aims in paramountc" ma" arise from two
different forms of conf!ictF[2]
)perationa! conf!ict between federa! and
pro$incia! !aws, such that dua! comp!iance isimpossib!e.
+here dua! comp!iance is possib!e, but the
pro$incia! !aw is incompatib!e with the purpose
of federa! !eis!ation, thus frustratin a federa!
purpose. <o determine whether the impuned
!eis!ation frustrates a federa! purpose, it is
necessar" to consider the reu!ator" framewor&
that o$erns the matter in Auestion. <he part"
see&in to in$o&e the doctrine of federa!
paramountc" bears the burden of proof.
Histor"[edit]
<he doctrine was first e0pressed in the @oca!
3rohibition Case, and was subseAuent!"
described b" @ord Gunedin in Erand <run& $.
ttorne" Eenera! of Canada thusF[']
irst, ... there can be a domain in which
pro$incia! and Gominion !eis!ation ma" o$er!ap,
in which case neither !eis!ation wi!! be u!tra
$ires, if the fie!d is c!earI and, second!", ... if the
fie!d is not c!ear, and in such a domain the two
!eis!ations meet, then the Gominion must
pre$ai!.[(]
Historica!!", the doctrine was interpreted $er"
strict!". +hen there was an" o$er!ap between
federa! or pro$incia! !aws the federa! !aw wou!d
a!wa"s render the pro$incia! !aw inoperati$e
e$en where there was no conf!ict. =t was o$er
time that courts and academics bean to
interpret the power as on!" app!"in where
conformit" to one !aw wou!d necessari!" $io!ate
the other. <he Supreme Court of Canada
adopted the !atter interpretation in the decision
of Smith $. <he Queen. <he Court he!d that there
must be an operationa! incompatibi!it" between
the !aws in order to in$o&e paramountc".
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<he modern use of the paramountc" doctrine
was articu!ated in u!tip!e ccess $.
cCutcheon. =n that case, both the pro$incia!
and federa! o$ernments had enacted $irtua!!"
identica! insider tradin !eis!ation. <he Courtfound that statutor" dup!ication does not in$o&e
paramountc" as the court had the discretion to
pre$ent doub!e pena!ties. =nstead, paramountc"
can on!" be in$o&ed when then comp!iance with
one means the breach of the other.
!ater e0amp!e of this doctrine was in the
decision of @aw Societ" of #ritish Co!umbia $.
anat, where the Court found an operationa!
conf!ict between the pro$incia! @aw Societ" ctprohibitin non*!aw"ers from appearin in front
of a ude and the federa! =mmiration ct which
a!!owed non*!aw"ers to appear before the
immiation tribuna!.
CitiJen%s =nsurance Compan" of Canada $.
3arsons[1] is a maor Canadian constitutiona!
case decided b" the Dudicia! Committee of the
3ri$" Counci!. <he Counci! interpreted the
propert" and ci$i! rihts c!ause of section 9251'6
in the Constitution ct, 187 to be read
e0pansi$e!" to inc!ude contracts re!ated to
insurance to be within the power of the
pro$incia! o$ernments, whi!e the counter$ai!in
<rade and Commerce c!ause of section 91526
was to be read narrow!".
Contents [hide]
1 #ac&round
2 <he courts be!ow
' t the 3ri$" Counci!
'.1 <rade and Commerce
'.2 =ncorporation of federa! companies
( ftermath
- References
urther readin
#ac&round[edit]
3arsons was the owner of a hardware store in
)rane$i!!e, )ntario that was co$ered b" an
insurance po!ic" pro$ided b" CitiJens% =nsurance
Co. of Canada. t the time the po!ic" was
issued, he a!so had a simi!ar po!ic" in effect with
the +estern ssurance Compan". +hen a fire
burnt down the store in uust 1877, CitiJens%
refused to pa", on the basis that the non*
disc!osure of the +estern po!ic" $io!ated the
terms of its po!ic", as we!! as a statutor"
condition under )ntario%s ire =nsurance 3o!ic"
ct.[2] 3arsons sued to co!!ect on the po!ic",
contendin it did not comp!" with the
presentation reAuirements of the ct.
<he courts be!ow[edit]
<he Court of Queen%s #ench entered a $erdict infa$our of 3arsons. CitiJens% appea!ed to the
Court of ppea!, contendin that the pro$incia!
ct was u!tra $ires because of federa!
urisdiction o$er trade and commerce. <he Court
of ppea! he!d the p!aintiffNs contention we!!
founded, and dismissed the appea! with costs.
t the appea! to the Supreme Court of Canada,
Sir )!i$er owat, actin in his ro!e as ttorne"
Eenera! for )ntario, inter$ened to champion3arson%s case. <he Court ru!ed '*2 thatF
<he ire =nsurance 3o!ic" ct was not u!tra $ires
pro$incia! urisdiction, and it app!ied to a!!
insurance companies insurin propert" that was
within the pro$ince.
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<he ct was not a reu!ation of trade and
commerce under s. 91526 of the # ct, 187.
=nsurers in )ntario must comp!" with the
statutor" conditions imposed under the
pro$incia! ct.
Ritchie CD asserted that the reu!ation of
insurance contracts fe!! under the pro$incia!
propert" and ci$i! rihts power, statinF
=f an insurance compan" is a trader, and the
business it carries on is commercia!, wh" shou!d
the !oca! !eis!ature, ha$in !eis!ati$e power
o$er propert" and ci$i! rihts, and matters of a
pri$ate and !oca! character, not be enab!ed to
sa" to such a compan"F L=f "ou do business inthe pro$ince of )ntario, and insure propert"
situate here, we ha$e !eis!ati$e contro! o$er
propert" and o$er the ci$i! rihts in the pro$ince,
and wi!!, under such power, for the protection of
that propert" and the rihts of the insured, define
the conditions on which "ou sha!! dea! with such
propert",M it bein possib!" who!!" unconnected
with trade and commerce, as a pri$ate dwe!!in
or farmin estab!ishment, and the person
insured ha$in possib!" no connection with trade
or commerce
How can it be said that such propert" and such
ci$i! rihts or contract sha!! be outside of a!! !oca!
!eis!ation, and so outside of a!! !oca! !eis!ati$e
protection =f the business of insurance is
connected with trade and commerce, the
!eis!ation we are now considerin does not
attempt to prohibit the carr"in on of the
business of insurance, but ha$in the propert"
and the ci$i! rihts of the peop!e of the pro$ince
confided to them this !eis!ation, in re!ation
thereto, is simp!" the protection of such propert"
and of such rihts.[']
Henri /!J4ar <aschereau and Dohn +e!!inton
Ew"nne, who dissented in the Supreme Court
decision, ad$ised Sir Dohn . acdona!d to
consider inter$enin if necessar" to ha$e the
decision appea!ed to the Dudicia! Committee of
the 3ri$" Counci!. =n particu!ar, Ew"nne saidF
L
[CitiJensN =nsurance was] the thin end of the
wede to brin about 3ro$incia! So$ereint"
which = be!ie$e r. owat is !abourin to do.
M
CitiJens% =nsurance appea!ed to the 3ri$"
Counci!, and owat asserted his inf!uence on
the case b" ha$in the pro$ince assume
3arsonNs costs and b" briefin his !aw"ers to
arue that the pro$incia! !eis!ati$e urisdiction
shou!d be broad!" defined, with the Gominion
pre$ented from encroachin upon it.
t the 3ri$" Counci![edit]
<he Supreme Court ru!in was affirmed. <he
Queen%s #ench $erdict was re$ersed, howe$er,
because of outstandin Auestions as to the
interpretation of certain interim notes, and the
matter was remitted bac& to that court forreconsideration.
Sir ontaue Smith noted, as a enera!
proposition, that the #ritish orth merica ct,
187 must be interpreted as an ordinar" statute.
<rade and Commerce[edit]
<he case !are!" turned on the issue of the !awo$er!appin two heads of power. Smith focused
on interpretin the <rade and Commerce power
to which he famous!" stated thatF
<he words reu!ation of trade and commerce,
in their un!imited sense are sufficient!" wide, if
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uncontro!!ed b" the conte0t and other parts of
the ct, to inc!ude e$er" reu!ation of trade
ranin from po!itica! arranements in reard to
trade with forein o$ernments, reAuirin the
sanction of par!iament, down to minute ru!es for
reu!atin particu!ar trades.
...
#ut a consideration of the ct shows that the
words were not used in this un!imited sense. =n
the first p!ace the co!!ocation of o. 2 with
c!asses of subects of nationa! and enera!
concern affords an indication that reu!ations
re!atin to enera! trade and commerce were in
the mid of the !eis!ature, when conferrin the
power on the dominion 3ar!iament. =f the words
had been intended to ha$e the fu!! scope of
which in their !itera! meanin the" aresusceptib!e, the specific mention of se$era! of
the other c!asses of subects enumerated in
sect. 91 wou!d ha$e been unnecessar"...
...
Construin therefore the words reu!ation of
trade and commerce b" the $arious aids to their
interpretation abo$e suested, the" wou!d
inc!ude po!itica! arranements in reard to trade
reAuirin the sanction of par!iament, reu!ation
in matters of inter*pro$incia! concern, and it ma"be that the" wou!d inc!ude enera! reu!ation of
trade affectin the who!e dominion.
=n a!!, Smith estab!ished three characteristics of
the trade and commerce powerF
the reu!ation of trade and commerce shou!d
not be read !itera!!"
it inc!udes internationa! and interpro$incia! trade
as we!! as enera! reu!ation of trade affectin
the who!e dominion
it does not e0tend to reu!ate contracts between
businesses.
=ncorporation of federa! companies[edit]
<aschereau D, in his opinion, had e0pressed
concern that, if the 3ar!iament of Canada did not
possess the power to reu!ate companies under
the trade and commerce power, it therefore did
not ha$e the power to incorporate companies.[(]Smith dec!ared that the federa! incorporation
power arose from s. 91%s introductor" wordsF
L
in re!ation to a!! atters not comin within the
C!asses of Subects b" this ct assined
e0c!usi$e!" to the @eis!atures of the 3ro$inces
M
S. 925116 a$e the pro$incia! !eis!atures power
o$er <he =ncorporation of Companies with
3ro$incia! )bects. <herefore, Smith dec!aredF
L
... it fo!!ows that the incorporation of companies
for obects other than pro$incia! fa!!s within theenera! powers of the 3ar!iament of Canada.
M
Howe$er, the power to incorporate does not
confer the e0c!usi$e riht to reu!ate the
contracts it ma" enter into.
ftermath[edit]
3arsons had constitutiona! and po!itica!
conseAuencesF
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=t circumscribed the inf!uence of <aschereau and
Ew"nne DD%s hih!" centra!ist $iews in Canadian
constitutiona! urisprudence.
=t sinificant!" restricted the federa! trade and
commerce power for decades in 3ri$" Counci!
urisprudence, which on!" started to s!ow!"transform in the 197;s, beinnin with Ca!oi! =nc.
$. Canada and seein chane in Eenera! otors
of Canada @td. $. Cit" ationa! @easin.
=t represented a maor $ictor" in owat%s
championin of increased pro$incia! rihts,
which recei$ed further support in forthcomin
3ri$" Counci! appea!s in other cases, which
ha$e inf!uenced Canadian po!itica! and
constitutiona! debate to the present da".
Eenera! otors of Canada @td. $. Cit" ationa!
@easin[1] is a !eadin Supreme Court of
Canada decision on the scope of the <rade and
Commerce power of the Constitution ct, 187
as we!! as the interpretation of the nci!!ar"
doctrine.
Contents [hide]
1 #ac&round
2 <he courts be!ow
' t the Supreme Court of Canada
'.1 <he nature of the trade and commerce
power
'.2 /ffect of the anci!!ar" doctrine
( =mpact
- See a!so
References
#ac&round[edit]
rom 197; throuh 198;, Eenera! otors 5E6
so!d $ehic!es to both Cit" ationa! @easin
5C@6 and to C@%s competitors. =t was
disco$ered that E, throuh Eenera! otors
cceptance Corporation, was i$in C@%scompetitor a better interest rate than C@. C@
contended that this was a practice of price
discrimination contrar" to s. '(5165a6 of the
Combines =n$estiation ct, i$in it a cause for
action under s. '1.1 of the ct. =t sued E for
!ost profits, re!ated interest, and breach of
contract for damaes arisin after arch 198;.
=n its defence, E arued thatF
certain pararaphs of the statement of c!aim
shou!d be struc& out as disc!osin no cause of
action because E had ne$er made an" sa!es
direct!" to C@ or to its competitors, and thus s.
'(5165a6 of the ct did not app!"
s. '1.1 is u!tra $ires 3ar!iament, bein in pith and
substance !eis!ation in re!ation to pro$incia!
urisdiction for propert" and ci$i! rihts and
matters of a !oca! or pri$ate nature
a!ternati$e!", if s. '1.1 is $a!id, it is not
retrospecti$e and therefore i$es a cause of
action on!" after its proc!amation on Danuar" 1,
197.
<he courts be!ow[edit]
t tria!, Rosenber D accepted E%s first
arument, and ad$ised counse! that in $iew of
this findin there was no need to direct
arument toward the u!tra $ires point, the
constitutiona! issue bein academic. He did,
thouh, present his $iews on the aruments that
had been raised as to constitutiona!it". Citin
se$era! authorities,[2] he he!d that the riht of a
pri$ate indi$idua! to sue is not tru!" necessar" for
the Combines =n$estiation ct to be effecti$e,
and, accordin!", s. '1.1 is u!tra $ires the
3ar!iament of Canada. He a!so areed with
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E%s third arument, statin that the section
was not retrospecti$e, thus not app!"in to
transactions occurrin prior to 197.
<he )ntario Court of ppea! a!!owed appea! inpart. =n dea!in with the three issues at hand, it
dec!aredF
it was not persuaded that C@ cou!d not hope to
succeed in assertin a c!aim founded on s. '(516
if the matter were to o to tria!.
the ude had erred in proceedin to ma&e a
findin after ha$in indicated to counse! that he
need not hear arument on the matter.
the ude was correct in statin that the section
did not ha$e retrospecti$e effect.
t the reAuest of a!! counse!, it dea!t with the
issue of the $a!idit" of s. '1.1, and dec!ared that,
on the basis of contemporar" urisprudence at
the edera! Court of ppea!,['] the section was
constitutiona!!" $a!id.
@ea$e was ranted b" the Supreme Court ofCanada to appea!, and the case was heard in
conunction with an appea! from the
correspondin case from the edera! Court of
ppea!.
t the Supreme Court of Canada[edit]
<he issues before the Supreme Court were
whetherF
the Combines =n$estiation ct, either in who!e
or in part, was intra $ires 3ar!iament under s.
91526 of the Constitution ct, 187, and
s. '1.1 of the ct[(] 5which created a ci$i! cause
of action6 was interated with the ct in such a
wa" that it too was intra $ires under s. 91526
<he nature of the trade and commerce
power[edit]
=n a unanimous decision, Gic&son CD found that
the ct was $a!id under the enera! branch of
the trade and commerce power, and that the
pro$isions necessari!" incidenta! to the $a!id
subect of the ct were thus $a!id as we!!. =n so
ru!in, he !isted se$era! indicators[-] which B
whi!e neither e0hausti$e nor necessari!" decisi$e
B ma" be used in identif"in such $a!idit"F
the impuned !eis!ation must be part of aenera! reu!ator" scheme
the scheme must be monitored b" the continuin
o$ersiht of a reu!ator" aenc"
the !eis!ation must be concerned with trade as
a who!e rather than with a particu!ar industr"
the !eis!ation shou!d be of a nature that the
pro$inces oint!" or se$era!!" wou!d be
constitutiona!!" incapab!e of enactin
the fai!ure to inc!ude one or more pro$inces or!oca!ities in a !eis!ati$e scheme wou!d
eopardiJe the successfu! operation of the
scheme in other parts of the countr"
=n the case at hand, the SCC found that the ct
was of nationa! scope, aimed at the econom" as
a sin!e interated nationa! unit rather than as a
co!!ection of separate !oca! enterprises. <he
pro$inces oint!" or se$era!!" wou!d be
constitutiona!!" incapab!e of passin this
!eis!ation, and the fai!ure to inc!ude one or more
pro$inces or !oca!ities wou!d eopardiJe
successfu! operation of the !eis!ation in other
parts of the countr".
/ffect of the anci!!ar" doctrine[edit]
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3re$ious urisprudence had formu!ated a
number of tests, which were not identica!, for
determinin whether a pro$ision is sufficient!"
interated into !eis!ation for sustainin its
constitutiona!it" under the anci!!ar" doctrine.
Gic&son CD noted that such cases focused the
Auestion on a conte0t*specific wa", which did not
!end to enera! princip!es, and saidF
s the seriousness of the encroachment on
pro$incia! powers $aries, so does the test
reAuired to ensure that an appropriate
constitutiona! ba!ance is maintained. =n
sur$e"in past urisprudence it is to be e0pected
that some e0amp!e of patterns between the
appropriate test of fit, and the head of power
under which the federa! !eis!ation is $a!id, wi!!be found. Such patterns e0ist not on!" because
of a possib!e deree of simi!arit" between the
federa! !eis!ation which fa!!s under an" one
head of power, but a!so for the reason that
certain federa! heads of power, for e0amp!e, s.
9251;6, are narrow and distinct powers which
re!ate to particu!ar wor&s and underta&ins and
are thus Auite susceptib!e to ha$in pro$isions
tac&ed*on to !eis!ation which is $a!idated
under them, whi!e other federa! heads of power,
for e0amp!e, trade and commerce, are broadand therefore !ess !i&e!" to i$e rise to hih!"
intrusi$e pro$isions.
He summariJed and out!ined the ana!"sis to be
used in that reard in future casesF
<he court must determine whether the impuned
pro$ision can be $iewed as intrudin on
pro$incia! powers, and if so to what e0tent.
=t must estab!ish whether the act 5or a se$erab!e
part of it6 in which the impuned pro$ision is
found is $a!id.
=n cases under the second branch of s. 91526
this wi!! norma!!" in$o!$e findin the presence of
a reu!ator" scheme and then ascertainin
whether the ha!!mar&s articu!ated b" the Court
ha$e been met b" the scheme. =f the scheme is
not $a!id, that is the end of the inAuir".
=f the reu!ator" scheme is dec!ared $a!id, the
court must then determine whether the
impuned pro$ision is sufficient!" interated withthe scheme that it can be uphe!d b" $irtue of that
re!ationship. <his reAuires considerin the
seriousness of the encroachment on pro$incia!
powers, in order to decide on the proper
standard for such a re!ationship. =f the pro$ision
passes this interation test, it is intra $ires
3ar!iament as an e0ercise of the enera! trade
and commerce power. =f the pro$ision is not
sufficient!" interated into the scheme of
reu!ation, it cannot be sustained under the
second branch of s. 91526.
=n certain cases, it ma" be possib!e to dispense
with some of the aforementioned steps if a c!ear
answer to one of them wi!! dea! with the issue.
or e0amp!e, if the pro$ision in Auestion has no
re!ation to the reu!ator" scheme, the Auestion
of its $a!idit" ma" be Auic&!" answered on that
round a!one.
=mpact[edit]
Eenera! otors, toether with ?ir&bi E $. Rit$i&
Ho!dins =nc., are !eadin cases on the scope of
3ar!iamentNs trade and commerce power,
particu!ar!" with respect to the enera! branch of
that power. =t ref!ects the current $iew of the
Court that fa$ours interpro$incia! economic
interation, especia!!" with the respect to the
$iews e0pressed b" 3eter Ho and +arren
Ero$erF
=t is sure!" ob$ious that maor reu!ation of the
Canadian econom" has to be nationa!. Eoods
and ser$ices, and the cash or credit which
purchases them, f!ow free!" from one part of the
countr" to another without reard for pro$incia!
boundaries. =ndeed, a basic concept of the
federation is that it must be an economic
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union.... <he re!ati$e unimportance of pro$incia!
boundaries has become proressi$e!" more
ob$ious as industr" has tended to become more
concentrated.[]
R. $. Crown e!!erbach Canada @td. [1988] 1
S.C.R. (;1, is a !eadin constitutiona! decision
of the Supreme Court of Canada. <he Court
uphe!d the $a!idit" of the )cean Gumpin ct *
now part of the Canadian /n$ironmenta!
3rotection ct * findin that a!! matters re!ated to
po!!utin the ocean are within the e0c!usi$e
urisdiction of the federa! o$ernment owin tothe nationa! concern branch of the peace, order,
and ood o$ernment c!ause in the #ritish
orth merica ct, 187 5now &nown as the
Constitution ct, 1876.
Gefinition
Constitutiona! !aw is the !aw prescribin the
e0ercise of power b" the orans of a State. =t
e0p!ains which orans can e0ercise !eis!ati$e
powers 5ma&e new !aws6, e0ecuti$e power
5imp!ement new !aws6 and udicia! !aws
5adudicatin disputes6 and what those
!imitations are.
Concerns*
!!ocation of o$ernment powers 5!eis!ati$e,
e0ecuti$e, udicia!6 amon centra! and reiona!
authorities is its basic concern.<he protection of
ci$i! !iberties is a!so its concern. constitution
has been described as a Lmirror ref!ectin the
nationa! sou!M.
LConstitutiona!ismM*
word used to con$e" that idea that
o$ernment is ru!ed b" !aw. <he word Lru!e of
!awM is used to con$e" the same idea. <his
describes asociet" in which o$ernment officia!s
must act in accordance with the !aw. Dudicia!independence is needed. <he ru!e of !aw app!ies
to3ar!iament and @eis!atures of the 3ro$ince.
@aws in breach of the constitution ma" be
cha!!ened in court.
Constitutiona! ct 187
=n Canada there is no sin!e constitutiona!
document !i&e the >S.
<he #ritish orth merican ct 1875chaned in
82N to Constitutiona! ct 1876 is simi!ar.
# created a new Gominion of Canada b"
unitin three co!onies of #ritish orth merica
and b" pro$idin the frame wor& for
theadmission of a!! other #ritish orth merican
co!onies.
<he # act estab!ished the ru!es of federa!ism
but did not brea& from its co!onia! past.
issin features of this actF
o amendin c!ause in this act
s9 $ests authorit" o$er Canada b" the QueenNs
representati$e the Eo$ernor Eenera! but theEENs office isno where created in the ct.
o mention or s"stem of responsib!e
o$ernment 5 the prime minster, the cabinet6
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=t did not write the Supreme Court into the act
a!thouh s 1;1 a$e authorit" to create it.
GidnNt create a bi!! of rihts but re!ied on #ritish
common !aw.
Constitutiona! ct 1982
' =mportant repairs were made in 1982
.
16
<he" were a domestic amendin formu!a was
adopted
26
the authorit" o$er Canada of the >? 3ar!iament
was terminated
'6
theCharter of Rihts was adopted.
Sti!! $er" hard to comprehend
Canada ct 1982
*a short statue of the >? 3ar!iament which
terminated the authorit" o$er Canada.
<he Constitutiona! ct 1982 *does 2 thinswhich are intended to effect some moderniJation
and rationa!iJation of CanadaNs constitutiona!!aw.
16
the name of the # act is chaned to the
Constitutiona! ct 187. 26 for the first time a
definin of the phrase LConstitution of CanadaN
<he Constitution of Canada
s-2 5 26<he Constitution of Canada inc!udesF
5noteF definition of the Constitution of
Canada6a6<he Canada ct 1982, inc!udin this ctIb6the cts and orders referred to in the
schedu!eI andc6an" amendments to an" ct or
order referred to in pararaph 5a6 or
5b6Gefinition*
=t inc!udes ' cateories of instruments.
a6
<he Canada ct 1982 5inc!udes the Constitution
ct 1982 Schedu!e #6
b6
the cts* is a !ist of '; cts and orders in the
schedu!e to the Constitutiona! ct 1982.
5inc!udes <he Constitution ct 187, its
amendments, theorders in counci! and statues
admittin or creatin new pro$inces and
boundaries, and the statue of +estminster.
c6
comprises new amendments which ma" in the
fute be made to an" of the instruments in thefirst two cateories.
<he Charter of Rihts
is part of the Constitution of Canada because it
is 3art 1 of the C act 1982.
Hea!th Ser$ices #arainin 52;;76
where court he!d that that a statue was in$a!id
as a breach of freedom of association. <hisma&es co!!ecti$e areement neotiations
betweena union and an emp!o"er now superior
to a statue
.
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L=nc!udesM
in
s -2526
indicates that the word is not e0hausti$e. <hiswas supported b"
SCC in the
ew #runswic& #roadcastin Co. $ o$a Scotia
5199'6.
<he he!d the unwritten doctrine
par!iamentar" pri$i!ee
shou!d be inc!uded in
the s-2526
definition e$en thouh nomention of it. <he
courtNs decision means the definition can be
e0panded.
Ho be!ie$es that it is best to !ea$e the courts
decisions to unwritten doctrines and written
doctrines as e0hausti$e.
<he new schedu!e omits the pre 187
instruments which o$erned )nt and Qbe and
<he Ro"a! 3roc!amation of 17', the Quebec
ct177(, the Constitutiona! ct of 1791 and the
>nion ct of 18(;.
<he Supremac" C!ause is -2516*
<his ma&es it the supreme !aw of the countr".
1
2
<he /ntrenchment c!ause* -25'6*
<his entrenched the Constitutions ct 1982 andma&es it on!" amendab!e b" the proscribed
procedure.
=mperia! statues* Ho 1.-L3ar!iamentar"
3ri$i!eesM
<he federa! Houses of 3ar!iament and thepro$incia! !eis!ati$e assemb!ies posses a set of
powers and pri$i!ees that are Lnecessar" to
their capacit" to function as !eis!ati$e
bodies.M<his was supported b" the SCC in
ew #runswic& #roadcastin Co. $ o$a Scotia
5199'6
where
LstranersM
were e0c!uded from the o$a Scotia !eis!ati$e
assemb!".
3ar!iamentar" 3ri$i!ees*
rearded as a branch of the common !aw as it is
not contained in an" statute or other written
instrument and it isthe courts who determine its
e0istence and e0tent.
2 pecu!iar characteristics of 3ar!iamentar"
3ri$i!ees stated b" the SCC in
ew #runswic& #roadcastin Co. $ o$a Scotia
5199'6
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16
=t is part of the Constitutions of Canada
26
the powers authoriJed b" par!iamentar" pri$i!eeare not subect to the Charter Rihts.
=s different from ro"a! preroati$es and other
common !aw powers of o$ernment.
o difference between in constitutiona! status
between !eis!ati$e pri$i!eed and inheritpri$i!eed*both are e0empt from the Charter.
3ar!iamentar" 3ri$i!ees*
a!so inc!udes freedom of speech in debate,
inc!udin from !ea! proceedins for thins said
in debates. =t a!soinc!udes riht of members of
par!iament or !eis!ati$e assemb!ies not to testif"
in court proceedins whi!e 3ar!iament or the
@eis!ature isin Session.
L3reroati$eM
<he ro"a! preroati$e consists of the powers and
pri$i!ees accorded b" the common !aw to the
Crown. <he preroati$e is a branch of
thecommon !aw, because it is the decision of the
courts which ha$e determined its e0istence and
e0tent
.
Case of 3roc!amations 51116.
<
he"are powers and pri$i!ees that are uniAue to
the Crown.
Con$entionsGefinition*
Con$entions are ru!es of the constitution that are
not enforced b" the !aw courts. #ecause the"
are not enforced b" the !aw courts, the"are best
rearded as non*!ea! ru!es, but because the"
reu!ate the wor&in of the constitution, the" areimportant. <he" prescribe the wa" in which!ea!
powers sha!! be e0ercised.
6 Con$ention in Courts K
a!thouh not enforced b" courts, the e0istence of
a con$ention has occasiona!!" been reconiJed
b" the courts.
ie*
@i$erside $ nderson [19(2]
con$entions of responsib!e o$ernment which
ma&e a minster accountab!e to 3ar!iament as
aconsideration in decidin to i$e a broad rather
than narrow interpretation to a statue conferrin
power on a inster .
3atriation Reference519816*
SCC
was as&ed whether there was a con$ention
reAuirin that the consent of the pro$inces be
obtained before the federa!o$ernment
reAuested the >nited ?indom to enact an
amendment to the Consti of Canada. <hat wou!d
affect the pro$inces. <he court wasa!so as&ed
whether there was a !ea! reAuirement for
pro$incia! consent.
#6 Con$ention in >sae*
con$ention is a ru!e.
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LusaeM
is not a ru!e, but mere!" a o$ernmenta! practice
which is ordinari!" fo!!owed,a!thouh it is not
reAuired as ob!iator"
.
ie of >sae* the practice of appointin to the
position of Chief Dustice of Canada the person
who isthe senior puisne ude of the SCC at the
time of the $acanc". <his practice has been
departed with the appointment of c@ach!in in
2;;;. L
usaeM
ma" de$e!op into a con$ention. <he process of
e$o!ution from usae to con$ention ma" be
ca!!ed a L
custom.M
con$ention
isas unenforceab!e as a
usae.
<here is a stron mora! ob!iation to fo!!ow a
con$ention
than a
usae
and departure from a con$ention wi!! be
criticised more.
3atriation Reference
5 19816*
Ho 1.1;5c6
the court found the con$ention reAuired a
Lsubstantia! dereeM of pro$incia!consent but it
was not necessar" to decide e0act!" what the
reAuisite deree is.
C6 Con$ention in reement*
con$ention can be estab!ished b" a!! re!e$ant
officia!s areein to adopt a certain ru!e of
constitutiona!conduct, then that ru!e ma"
immediate!" come to be rearded as ob!iator"
and are usua!!" written down b" the officia!s in
precise andauthoritati$e terms.
5ie
*19'; when the 3rime inster of the se!f
o$ernin dominions of the Commonwea!th
areed that the &in 5 or Queen6 wou!d appoint
the Eo$ernor Eenera! of a dominion so!e!" on
the ad$ice of the o$ernment of the dominion.6
G6 Con$ention and @aw K
con$ention cou!d be transformed into !aw b"
bein enacted as a statue. con$ention wou!d
a!so betransformed into !aw if it is enforced b"
the courts. =f a court did enforce a con$ention5and admitted!" no court has e$er done so6,
thecon$ention wou!d be transformed into a !ea!
ru!e.
+h" do peop!e obe" them if not !aw
<he breach of a con$ention wou!d resu!t
inserious po!itica! repercussions and
e$entua!chanes in !aw.
Con$entions
reu!ate the wa" in which !ea! powers sha!! be
e0ercised and brin outdated !ea! powers into
conformit" with currentnotions of o$ernment.
<heir purpose is to Lis to ensure that !ea!
framewor& of the $a!ues or princip!es of the
period
M
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ReF Reso!ution to mend the Constitution
[1981] 1 SCR
/6 Con$ention and 3o!ic"*
3ub!ic Schoo! #oards ssn $ !ta. [2;;;
/n!ish Catho!ic <eachers Case $ )nt [2;;1]*
pub!ic schoo!supported arued that pro$incia!
educationa! statues $io!ated a constitutiona!
con$ention. He!d* in both cases that no
con$ention restrictedthe po!ic" or substance of
what cou!d be enacted b" the pro$incia!
@eis!ature in e0ercise in its power to ma&e !aws
in re!ation toeducation. Con$entions affected
on!" the structure of o$ernment power, not the
po!ices to which o$ernment power wasaddressed.
Reference re Secession of Quebec
, [
1998] 2 S.C.R. 217
Constitutiona!it" of uni!atera! separation of
Quebec
He!d*
Quebec cannot secede
2
'
from Canada uni!atera!!"I howe$er, a c!ear $oteto secede in a referendum shou!d !ead to
neotiations between Quebec and the rest of
Canada for secession.
Ho 1.8*
<he SCC in$o&ed unwritten princip!es of
democrac", federa!ism, constitutiona!ism and the
protection of minorities to ho!d that,if a pro$ince
were to decide in a referendum that it wanted to
succeed from Canada, the federa! o$ernment
and other pro$inces wou!dcome under a !ea!
dut" to enter into neotiations to accomp!ish the
secessions. <his i!!ustrates the acti$e and
creati$e ro!e that the modernSupreme Court has
car$ed out for itse!f.
ain Con$entions
=.the o$ernor enera! on!" acts on the ad$ice of
the 3ri$" Counci!==.this 3ri$" Counci! is not the
fu!! Counci! described in s1' of the Constitution
ct 187 but rather a sma!!er subset, the
Cabinet===.the cabinet chosen b" the 3rime
inister, and the number of ministers is up tohimTher =U.the primes minster, a!thouh no
where mentioned in the Constitution ct 187, is
the head of o$ernmentU.the prime minster and
hisTher cabinet must ha$e the support of a
maorit" of members in the house of
commonsU=.the prime minster and hisTher
cabinet must ha$e seats in the House of
Commons or SenateU==.House of Commons
support for 3rime insters and cabinets is
ra!!ied b" means of 3o!itica! parties andU===.
fai!ure to command and support of a maorit" ofmembers in the House of Commons resu!ts in
the o$ernment steppin down andusua!!" the
ca!!in of a enera! e!ection.
)ther Con$entions
=.<he e0ercise of preroati$e powers b" the
crown==.<he operation of 3ar!iament and the
!eis!atures enera!!", inc!udin po!itica! parties
and at the nationa! !e$e!, the re!ationship
betweenthe e!ected house of Commons and the
appointed Senate===.<he operation of the federa!and pro$incia! cabinets, minsters and ci$i!
ser$ices and the re!ationship amon
them=U.edera!ism enera!!", aside from the
forma! di$isions or powers, inc!udin reser$ation
and disa!!owance of federa! and 3ro$incia!
actsand the ro!e the federa!!" appointed
!ieutenant o$ernor in pro$incia! mattersU.<he
ro!e of udes and courts in the o$ernmenta!
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process and the independence of udes and
courts interference b" the e0ecuti$eand
!eis!ati$e branches and
2. mendin 3rocedures
Constitution ct, 1982
, 3art U, ss.'8*(9Ho, chapter (,
LmendmentM, and chapter -.7, LSecessionM
Reference re Secession of Quebec
, [1998] 2 S.C.R. 2173art U of the Constitution
ct, 1982Ho (.25a6
3art U of the Consti ct 1982 is headed
L3rocedure for mendin Constitution of
Canada.M =t pro$ides - different amendin
procedures.
1.
enera! amendin procedure5s'86
for amendments not otherwise pro$ided for5as
we!! as for amendments !isted in s(26reAuirin
theassents of the federa! 3ar!iament and 2T' of
the pro$inces representin -; per cent of the
popu!ationI
2.
>nanimit" procedure5s(16,
for fi$e defined &inds of amendments, reAuirin
the assents of the federa! 3ar!iament and a!! of
the pro$inces,
'.
some but not a!! pro$inces procedure5s('
6,for amendment of pro$isions and on!" those
pro$inces affectedI
(.
<he federa! 3ar!iament a!one5s((6
has power to amend pro$isions re!atin to the
federa! e0ecuti$e and House of 3ar!iament Iand
-.
/ach 3ro$incia! @eis!ature a!one5s(-6
has power to amend Lthe constitution of the
pro$inceM.
'
(
mendin 3rocedures
F ound in 3t U Const ct 1982.
s'8
LEenera!MI
s(1
L>nanimit"MI s('F LSome but not !! 5pro$s6MI
these must conform to the Charter. !so, s((
mendments in re! to Housesof 3ar!t and /0ecI
s(- 3ro$! Constitutiona! mendments
s'8LEenera!M a&a L7T-; Ru!eM
K reAuires reso!utions to be passed b"F Senate V
HofC V 7 of the 1; 3ro$inces which ha$e in tota!
at !east -;: of the popu!ation.>se forF residua!,
when other procedures do not app!" as we!! as
those !isted in
s(2.
# no sin!e pro$ has constitutiona!!"
entrenched $eto
*'9516F
must wait 1 "ear to proc!aim 5un!ess a!! ha$e
consentedTdissented6 5a!!ows time to consider6*
'9526F
e0pires in ' "ears if reAuired consent not
achie$ed
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)ptin outF'85'6
app!ies to Lan" amendt that deroates from the
!eis!ati$e powers, proprietar" rihts or an" other
rihts or pri$i!ees of the!eis!ature or
o$ernment of a pro$inceM
pro$ can pass
reso!ution of dissent
W amendt wi!! not ta&e effect in that pro$ince
ust be done prior to proc!amation
'85(6F
reso!ution of dissent can be re$o&ed at an" time,
but(526F
reso!ution of assent cannot be re$o&ed after
proc!amation
s(;
compensates pro$s for optin out, for an"
transfer of 3ro$! !eis!ati$e powers to ed! o$t
5in re!ation to
education
or
cu!tura!
matterson!"6.
Reiona! Ueto Statute
F no amendt can be authoriJed un!ess it has first
been considered b" a maorit" of the pro$inces
that inc!udesF )nt, Que, #C,2V t!antic 3ro$s
rep min -;: pop, 2V 3rairie 3ro$s rep min -;:
pop. pp!ies to amendments thatF do not a!!ow
for optin out, and mustotherwise fo!!ow the
enera! 7T-; procedure. Goes not app!" to F
s(15unanimit"6 or s(' 5some but not a!!6
amendments.
S(1L>nanimit" Ru!eM
K used for matters of nationa! sinificance which
shou!d not be a!tered o$er the obection of e$en
one pro$ince. #
s'9
time !imits do not app!".
S('LSome but not a!!M 3ro$ision
K used for !anuae usae within a pro$ince,
a!terin pro$! bopundaries. oteF protection of
minoritiesis afforded b" the fact that it a!so
reAuires reso!utions of the Senate and HofC 5ie
ed! !e$e! appro$a!6 as we!! as the affected
pro$inces
Hoan $ ewfd!nd
52;;;6.
s((.<he >ni!atera! edera! ormu!a
and co$ers amendments to the L
Constitution of CanadaM
in re!ation to the federa! e0ecuti$e, or Senate
and the House of Commons* pro$ided that the
amendments do not fa!! within the cateor" of
amendments cauht b" the Eenera!and
>nanimit" ormu!a.
S(-3ro$! @eis! !one
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K !aws amendin constitution of pro$ 5ie those
that bear Lon the operation of an oran of o$t of
the pro$inceM K SCC6. ote does
not
inc!udeF Const! uarantee of !anuae rihts5per SCC in
E Quebec $ #!ai&ie
, now e0p!icit in s(-6. !soF
)3S/> $)ntario
[1987]F3rofound constit! uphea$a! b" the
introduction of po!itica! institutions forein to and
incompatib!e with the CanadianS"stem.uture
mendments
rench Canadian ationa!ism
F 1982 amendments reduced power of Que at!
ssemb!", Que was on!" pro$ that did not aree
with them.eech @a&e ccord 1987 K to
appease Que, but fe!! short of ratification b" 2
pro$s. Char!ottetown ccord 1992 reected in
ationa!Referendum. Quebec then he!d 2
nd
ref 199-. Gefeated b" on!" (9.(: K -;.:.
+estern Reiona!ism
F #u!& of CanadaNs pop is in Que V )n. So ed!
po!icies fa$our manuf industr" and consumers of
centra! Can. +estre!ies on prod of wood, oi!,
as, meta!s. ResponseF 1. to increase 3ro$! o$t
power which the +est can more easi!" contro!
and decr ed! power 5per 1982 amendments6,and 2. a&e centra! institutions more responsi$e
to reiona! concerns.
boriinba! 3eop!es Gemands
F entrenchment of traditiona! rihts
. S'-
F uarantees e0istin aboriina! and treat" rihts.
S'7 commits tofurther discussions. <he" a!so
see&F entrenchment of e0p!icit riht t se!f o$t,
and to participate in const! amendmt process
where aboriina!rihts ma" be affected.5Char!ottetown ccord wou!d ha$e done so but
was defeated6.
/ntrenchment of Charter Rihts
F note o$erride pro$ision was inserted to obtain
areement. ote a!so Quebec ne$er areed with
theCharter "et sti!! !ea!!" bindin on the
pro$ince.
Gi$ision of 3owers
F Reducin ed! and incr 3ro$! power easiest
wa" to address rench Candian and +estern
Canadian rie$ances. 1982amendmts incr pro$!
power o$er natura! resources. )n the other
handF /n!arement of certain ed! powers ma"
faci!itate effecti$e nationa!
(
cti$it" 52;6
=@</RSdd to co!!ectionRe$iew dd ote@i&e
r&hanna89 !i&ed this
1 thousand reads
1 hundred reads
itch rao$ic !i&ed this
itch rao$ic !i&ed this
itch rao$ic !i&ed this
ruchiabe"tune !i&ed this
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Read >n!imited #oo&
Ge!amuu&w $. #ritish Co!umbia [1997] ' S.C.R.
1;1;, a!so &nown as Ge!amuu&w $s. the
Queen is a decision of the Supreme Court of
Canada where the Court e0press!" and e0p!icit!"
dec!ined to ma&e an" definiti$e statement on the
nature of aboriina! tit!e in Canada. <he Court
he!d at pararaphs 7(, 7- and 77 that, [7(] =
reect the submission with respect to the
substitution of aboriina! tit!e and se!f*
o$ernment for the oriina! c!aims of ownership
and urisdiction \ [7-] <he content of common
!aw aboriina! tit!e, for e0amp!e, has not been
authoritati$e!" determined b" this Court \ [77]
<his defect in the p!eadins pre$ents this Court
from considerin the merits of this appea!.M
<he re!e$ance of the case for aboriina! tit!e
deri$es from what the Chief Dustice @amer ru!ed
in a dia!oue from the #ench with counse! #ruce
C!ar& appearin on a pre!iminar" obection to the
Court%s territoria! urisdiction based upon the
=ndian <ribe%s unsurrendered territoria!
so$ereint". <he Court <ranscript finds the Chief
Dustice sa"in, L=f "ou had decided to initiate or if
"ou decide tomorrow mornin to initiate in the
Supreme Court of #ritish Co!umbia an action for
dec!arator" re!ief sa"in that the #ritish
Co!umbia courts ha$e no urisdiction, that is a
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different matter and "ou cou!d be aruin to the
ude that, we!!, this is an issue that has ne$er
been tried.\ <here is no doubt that it is a
constitutiona! issue. \ =s that a!! "ou ha$e to sa"
on the constitutiona! AuestionM[1]
or these reasons the precedent $a!ue of the
Ge!amuu&w is that the constitutiona! Auestion
of the paramountc" o$er a Crown Eo$ernmentNs
and CourtNs urisdiction of an =ndian <ribeNs
territoria! so$ereint" pendin proof of a
surrender, b" treat", is a !eitimate and
outstandin constitutiona! Auestion that this
Court has ne$er decided, because it has ne$er
been tried. side from that, the Court e0press!"
and e0p!icit!" refused to decide an"thin of
precedent $a!ue reardin the =ndianconstitutiona! interest.
Contents [hide]
1 Court proceedins
2 3ro$incia! o$ernment position
' Supreme Court ru!in
( ftermath
- otes
References
7 /0terna! !in&s
Court proceedins[edit]
<he proceedins were started in 198( b" the
Eit&san and the +et%suwet%en ation. <he"
b"passed the s!ow edera! @and C!aims process
in which the #ritish Co!umbia 3ro$incia!
Eo$ernment wou!d not participate.
<he" c!aimed ownership and !ea! urisdiction
o$er 1'' indi$idua! hereditar" territories, a tota!
of -8,;;; sAuare &i!ometres of northwestern
#ritish Co!umbia, an area !arer than the
pro$ince of o$a Scotia.
<he Eit&san and +itsuwit%en used their ora!
histories as principa! e$idence in the case.
3ro$incia! o$ernment position[edit]
<he Crown of #ritish Co!umbia insisted that a!!
irst ations !and rihts in #ritish Co!umbia were
e0tinuished b" the co!onia! o$ernment before
it became part of Canada in 1871. oreo$er,
Chief Dustice !!an c/achern ru!ed that
aboriina! rihts in enera! e0isted at the
p!easure of the crown and cou!d thus be
e0tinuished whene$er the intention of the
Crown to do so is c!ear and p!ain. 5=n the Court
of ppea!, the 3ro$ince chaned its position to
arue that aboriina! !and rihts had not been
e0tinuished.6 >nder his reasonin, the
boriina! tit!e and boriina! riht of se!f*
o$ernment c!aimed b" the p!aintiffs had been
erased o$er a centur" pre$ious!", and as such
were prec!uded from Aua!if"in as e0istin
rihts under subsection '-516 of the Constitution
ct, 1982. His ru!in was seen b" man" as
serious!" at odds with Supreme Court of Canadaru!ins dea!in with constitutiona! boriina! and
treat" rihts, and was a!so criticiJed for its
apparent bias in both tone and ana!"tic
approach.[2] Dustice c/achern found that the
broad concepts embodied in ora! tradition, did
not conform to uridica! definitions of truth,[']
statinF = am unab!e to accept adaaw&, &una0
and ora! traditions as re!iab!e bases for detai!ed
histor" but the" cou!d confirm findins based on
other admissib!e e$idence.[(][-] !thouh these
courtroom proceedins estab!ished the
precedent of irst ations presentin their
c!aims to !and throuh the use of ora! tradition,
Dustice c/achern ru!ed that ora! tradition cou!d
not stand on its own as historica! e$idence. =n
order to bear an impact on the proceedins it
must be supported b" forms of e$idence
reconiJed b" the court.
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Supreme Court ru!in[edit]
<he Supreme Court made no decision on the
!and dispute, insistin that another tria! was
necessar". Specifica!!", [at pararaph 7( of theCourt%s decision] the Court he!d, = reect the
submission with respect to the substitution of
aboriina! tit!e and the se!f*o$ernment for the
oriina! c!aims of ownership and urisdiction....
[pararaph 7-] <he content of common !aw
aboriina! tit!e, for e0amp!e, has not been
authoritati$e!" determined b" this Court...
[pararaph 77] <his defect in the p!eadins
pre$ents this Court from considerin the merits
of this appea!.
<he !ea! sinificance of those passaes is that
the =ndian =nterest within the meanin of
section 1;9 of the Constitution ct, 187, was
not in$o!$ed in the appea!. Section 1;9 is the
section that sa"s the Crown%s
C)S<=<><=)@ =nterest is subect to the
=ndian C)S<=<><=)@ =nterest so !on as
the =ndian =nterest has not been so!d to the
Crown b" a $a!id treat". =t confirms that =ndian
so$ereint", i.e., e0c!usi$e urisdiction and so!e
possession, is the supreme !aw of the !andpendin treat" and, correspondin!", estab!ishes
the utter irre!e$ance of Crown 3ar!iamentar"
!eis!ation and Crown court recent in$entions
based upon the common !aw.
=t is wide!" he!d that <he ru!in a!so made
important statements about the !eitimac" of
=ndienous ora! histor" ru!in that ora! histories
were ust as important as written testimon".[] [7]
=t has been c!aimed that the case was
improper!" framed b" the !aw"ers who fi!ed the
case and it decided nothin nor cou!d it ha$e
decided an"thin.[8]
ftermath[edit]
<he Ge!amuu&w court case has important
imp!ications for the histor" of Canada and for the
idea of histor" itse!f. =n this case the court a$e
reater weiht to ora! histor" than to written
e$idence. )f ora! histories the court said the"are tanentia! to the u!timate purpose of the fact*
findin process at tria! ** the determination of the
historica! truth.
=n air Countr", Dohn Ra!ston Sau! writes
about the broader sinificance of the court%s
reconition of ora! e$idence as carr"in as much
or reater weiht as written e$idence, on
Canadian societ".
<he on!" !ea! difficu!t" with Sau!%s perception is
that ora! histor" is not re!e$ant to the definition of
the =ndian <ribes% constitutiona! interest, that
bein determined b" the paramountc" c!ause
section 1;9 of the Constitution ct, 187, as
sett!ed b" the precedents St Catherine%s i!!in
and @umber Co. $. <he Queen,[9] and ttorne"
Eenera! of Canada $. ttorne" Eenera! of
)ntarioF =n re =ndian C!aims,[1;] <hose cases
he!d the =ndian constitutiona! =nterest isparamount o$er the Crown%s constitutiona!
=nterest unti! surrendered b" treat", that bein
the !ea! conseAuence of the treat" process in
Canada.
Haida ation $. #ritish Co!umbia 5inister of
orests6, [2;;(] ' S.C.R. -11 is the !eadin
decision of the Supreme Court of Canada on the
Crown dut" to consu!t boriina! roups prior to
e0p!oitin !ands to which the" ma" ha$e c!aims.
Contents [hide]
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1 #ac&round
2 Dudment of the Court
' References
( /0terna! !in&s
#ac&round[edit]
=n 191 the pro$incia! o$ernment of #ritish
Co!umbia issued a <ree arm @icence 5<@
'96 o$er an area of !and to which the Haida
ation c!aimed tit!e. <his tit!e had not "et been
reconiJed at !aw. <he Haida ation a!so
c!aimed an boriina! riht to har$est red cedar
in that area. =n 1981, 199-, and 2;;; the
inister rep!aced <@ '9I in 1999 the inister
authoriJed a transfer to +e"erhauser Co. <hese
actions were performed uni!atera!!", without
consent from or consu!tation with the Haida
ation. <he Haida ation brouht a suit,
reAuestin that the rep!acement and transfer be
set aside.
<he chambers ude found that the Crown was
under a mora! K but not !ea! K dut" to neotiate
with the Haida ation. <he #ritish Co!umbia
Court of ppea! re$ersed this decision, decidin
that both the Crown and +e"erhauser Co. are
under !ea! ob!iations to consu!t with boriina!
roups whose interests ma" be affected.
Dudment of the Court[edit]
Chief Dustice c@ach!in, writin for a unanimous
court, found that the Crown has a dut" to
consu!t with boriina! peop!es and
accommodate their interests.[1] <his dut" is
rounded in the honour of the Crown, andapp!ies e$en where tit!e has not been pro$en.
<he scope of this dut" wi!! $ar" with the
circumstancesI the dut" wi!! esca!ate
proportionate!" to the strenth of the c!aim for a
riht or tit!e and the seriousness of the potentia!
effect upon the c!aimed riht or tit!e. Howe$er,
reard!ess of what the scope of the dut" is
determined to be, consu!tation must a!wa"s be
meaninfu!.
+here there is a stron prima facie case for the
c!aim and the ad$erse effects of theo$ernment%s proposed actions impact it in a
sinificant 5and ad$erse6 wa", the o$ernment
ma" be reAuired to accommodate. <his ma"
reAuire ta&in steps to a$oid irreparab!e harm or
minimiJe the effects of the infrinement.
#oth sides are reAuired to act in ood faith
throuhout the process. <he Crown must intend
to substantia!!" address the concerns of the
boriina! roup throuh meaninfu!consu!tation, and the boriina! roup must not
attempt to frustrate that effort or ta&e
unreasonab!e positions to thwart it.
)n the facts of the case, the Court found that
the Haida ation%s c!aims of tit!e and an
boriina! riht were stron, and that the
o$ernment%s actions cou!d ha$e a serious
impact on the c!aimed riht and tit!e. ccordin!",
the Crown had a dut" to consu!t the Haidaation, and !i&e!" had a dut" to accommodate
their interests.
<he Crown%s dut" of ood*faith consu!tation
does not e0tend to third parties, and cannot be
de!eated to them b" the Crown. <his is not to
sa" that third parties cannot be !iab!e to
boriina! roups in ne!ience, or for dea!in
with them dishonest!". Howe$er, it does mean
that the !ea! ob!iation of consu!tation andaccommodation is shou!dered e0c!usi$e!" b" the
Crown.
ccordin!", the Crown%s appea! was dismissed
and +e"erhauser Co.%s appea! was a!!owed.
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ord $. Quebec 5ttorne" Eenera!6, [1988] 2
S.C.R. 712 is a !andmar& Supreme Court of
Canada decision in which the Court struc& downpart of the Charter of the rench @anuae,
common!" &nown as #i!! 1;1. <his !aw had
restricted the use of commercia! sins written in
!anuaes other than rench. <he court ru!ed
that #i!! 1;1 $io!ated the freedom of e0pression
as uaranteed in the Canadian Charter of Rihts
and reedoms.
Contents [hide]
1 #ac&round
2 ftermath
' See a!so
( /0terna! !in&s
#ac&round[edit]
<he appea!, !aunched b" the o$ernment of
Quebec, conso!idated man" cases initiated b"
ontrea!*area merchants such as ontrea!f!orist H"man Siner and +est =s!and woo! shop
owner Ua!erie ord. <he" had been fined for
$io!ation of the Charter of the rench @anuae
and decided to fiht the case in court. o!!owin
comp!aints, the )ffice Au4b4cois de !a !anue
franaise had instructed them to inform and
ser$e their customers in rench and rep!ace
their bi!inua! rench and /n!ish sins with
uni!inua! rench ones. <he Supreme Court of
Canada uphe!d the decisions of the Quebec
Superior Court and the Quebec Court of ppea!.
ftermath[edit]
=n !ate 1989, short!" after the Supreme Court%s
decision, premier Robert #ourassa%s @ibera!
3art" of Quebec o$ernment passed #i!! 178,
ma&in minor amendments to the Charter of the
rench @anuae. ReconiJin that the
amendments did not fo!!ow the Supreme Court%s
ru!in, the pro$incia! !eis!ature in$o&ed section
'' of the Canadian Charter 5a!so &nown as the
notwithstandin c!ause6 to shie!d #i!! 178 from
re$iew b" courts for fi$e "ears.
<his mo$e was po!itica!!" contro$ersia!, both
amon Quebec nationa!ists who were unhapp"
with the chanes to the Charter of the rench
@anuae, and amon /n!ish*spea&in
Quebecers who opposed the use of the
notwithstandin c!ause. <ension o$er this issue
was a contributin factor to the fai!ure of the
eech @a&e ccord.
=n 199', the Charter of the rench @anuae
was amended in the manner suested b" the
Supreme Court of Canada. #i!! 8 was enacted
b" the #ourassa o$ernment to amend the
charter. =t now states that rench must be
predominant on commercia! sins, but a
!anuae other than rench ma" a!so be used.
ccordin!", the !aw no !oner in$o&es the
notwithstandin c!ause.
R. $. )a&es [198] 1 S.C.R. 1;' is a case
decided b" the Supreme Court of Canada which
estab!ished the famous )a&es test, an ana!"sis
of the !imitations c!ause 5Section 16 of the
Canadian Charter of Rihts and reedoms that
a!!ows reasonab!e !imitations on rihts and
freedoms throuh !eis!ation if it can bedemonstrab!" ustified in a free and democratic
societ".
Contents [hide]
1 #ac&round
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2 Court%s reasons
' References
( /0terna! !in&s
#ac&round[edit]
)n Gecember 17, 1981, Ga$id /dwin )a&es
was cauht with 8 $ia!s of hashish oi! outside of
a ta$ern in @ondon, )ntario. He c!aimed he had
purchased 1; $ia!s of hashish oi! for O1-; for his
own use. He was a!so in possession of O19.(-
which he c!aimed to ha$e recei$ed from a
o$ernment proram. Gespite )a&es% protests
that the $ia!s were meant for pain re!ief and that
the mone" he had was from a wor&ers%
compensation cheAue, Section 8 of the arcotic
Contro! ct 5C6 estab!ished a %rebuttab!epresumption that possession of a narcotic
inferred an intention to traffic un!ess the accused
estab!ished the absence of such an intention.
)a&es made a charter cha!!ene, c!aimin that
the re$erse onus created b" the presumption of
possession for purposes of traffic&in $io!ated
the presumption of innocence uarantee under
section 115d6 of the Charter. <he issue before
the Court was whether s. 8 of the C $io!ateds. 115d6 of the Charter, and whether an" $io!ation
of s. 115d6 cou!d be uphe!d under s. 1.
Court%s reasons[edit]
<he Court was unanimous in ho!din that the
shift in onus $io!ated both )a&es%s section 115d6
rihts and indirect!" his section 7 rihts, and
cou!d not be ustified under section 1 of the
charter. <his was because there was no rationa!
connection between basic possession and the
presumption of traffic&in, and therefore the shift
in onus is not re!ated to the pre$ious cha!!ene
to section 115d6 of the charter.
<he Court described the e0ceptiona! criteria
under which rihts cou!d be ustifiab!" !imited
under section 1. <he Court identified two main
functions of section 1. irst, it uarantees the
rihts which fo!!ow it, and second!", it states
the criteria aainst which ustifications for
!imitations on those rihts must be measured.
<he &e" $a!ues of the Charter come from the
phrase free and democratic societ" and shou!d
be used as the u!timate standard for
interpretation of section 1. <hese inc!ude $a!ues
such asF
respect for the inherent dinit" of the humanperson, commitment to socia! ustice and
eAua!it", accommodation of a wide $ariet" of
be!iefs, respect for cu!tura! and roup identit",
and faith in socia! and po!itica! institutions which
enhance the participation of indi$idua!s and
roups in societ".
Charter rihts are not abso!ute and it is
necessar" to !imit them in order to achie$e
co!!ecti$e oa!s of fundamenta! importance.
<he Court presents a two step test to ustif" a
!imitation based on the ana!"sis in R. $. #i
Gru art. irst, it must be an obecti$e re!ated
to concerns which are pressin and substantia!
in a free and democratic societ", and second it
must be shown that the means chosen are
reasonab!e and demonstrab!" ustified.
<he second part is described as a
proportiona!it" test which reAuires the in$o&in
part" to showF
irst, the measures adopted must be carefu!!"
desined to achie$e the obecti$e in Auestion.
<he" must not be arbitrar", unfair or based on
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irrationa! considerations. =n short, the" must be
rationa!!" connected to the obecti$e. Second,
the means, e$en if rationa!!" connected to the
obecti$e in this first sense, shou!d impair as
!itt!e as possib!e the riht or freedom in
Auestion. <hird, there must be a proportiona!it"
between the effects of the measures which are
responsib!e for !imitin the Charter riht or
freedom, and the obecti$e which has been
identified as of sufficient importance.
=n app!"in this test to the facts the Court found
that section 8 does not pass the rationa!
connection test as the possession of a sma!! or
ne!iib!e Auantit" of narcotics does not support
the inference of traffic&in ... it wou!d be
irrationa! to infer that a person had an intent to
traffic on the basis of his or her possession of a
$er" sma!! Auantit" of narcotics. <herefore,
section 8 of the arcotics Contro! ct is in
$io!ation of the Charter and is of no force or
effect.
!berta $. Hutterian #rethren of +i!son Co!on" is
a freedom of re!iion decision b" the SupremeCourt of Canada. <he court addressed whether
a reAuirement that a!! !icensed dri$ers be
photoraphed unconstitutiona!!" $io!ated the
Hutterites% riht to freedom of re!iion.
#ac&round[edit]
<he Hutterites be!ie$e that the" cannot consent
to bein photoraphed. 3re$ious!", an e0ception
had been made from the photoraphreAuirement b" the !berta o$ernment.
Howe$er, the o$ernment now &eeps the
photoraphs in a !are database to pre$ent
identit" theft, and ended the e0emption. !berta
c!aimed that ma&in a constitutiona! e0ception
for the Hutterites wou!d undermine its attempts
to pre$ent such fraud.
<he !berta Court of ppea! found for the
Hutterites.
)pinion of the Court[edit]
<he o$ernment of !berta conceded that this
was a $io!ation of the Hutterites% re!iious
freedom 5protected under Section 2 of the
Canadian Charter of Rihts and reedoms6 but
arued that this $io!ation was a!!owab!e under
Section 1%s reasonab!e !imits on Charter rihts.
<he Hutterites maintained that this was an
unreasonab!e !imit.
Chief Dustice c@ach!in, writin for the maorit",
found the !aw constitutiona!. She found that the
o$ernment%s need to fiht fraud was pressin,
and that dri$in was not a riht, so the
o$ernment was entit!ed to attach !eitimate
conditions to it.
<hree ustices dissented and wou!d ha$e not
reAuired the Hutterites to be photoraphed to be
!icensed. =n three separate opinions, Dustices be!!a, @e#e!, and ish found that this po!ic"
was not minima!!" impairin, since it wou!d not
sinificant!" enab!e identit" theft to a!!ow the
e0ceptions, and it wou!d ha$e a !are
detrimenta! effect on the Hutterites% wa" of !ife,
since the" wou!d ha$e to emp!o" outsiders to
perform a!! their necessar" dri$in.
!berta $. Hutterian #rethren of +i!son Co!on" is
a freedom of re!iion decision b" the Supreme
Court of Canada. <he court addressed whether
a reAuirement that a!! !icensed dri$ers be
photoraphed unconstitutiona!!" $io!ated the
Hutterites% riht to freedom of re!iion.
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#ac&round[edit]
<he Hutterites be!ie$e that the" cannot consent
to bein photoraphed. 3re$ious!", an e0ception
had been made from the photoraph
reAuirement b" the !berta o$ernment.
Howe$er, the o$ernment now &eeps thephotoraphs in a !are database to pre$ent
identit" theft, and ended the e0emption. !berta
c!aimed that ma&in a constitutiona! e0ception
for the Hutterites wou!d undermine its attempts
to pre$ent such fraud.
<he !berta Court of ppea! found for the
Hutterites.
)pinion of the Court[edit]
<he o$ernment of !berta conceded that this
was a $io!ation of the Hutterites% re!iious
freedom 5protected under Section 2 of the
Canadian Charter of Rihts and reedoms6 but
arued that this $io!ation was a!!owab!e under
Section 1%s reasonab!e !imits on Charter rihts.
<he Hutterites maintained that this was an
unreasonab!e !imit.
Chief Dustice c@ach!in, writin for the maorit",
found the !aw constitutiona!. She found that the
o$ernment%s need to fiht fraud was pressin,
and that dri$in was not a riht, so the
o$ernment was entit!ed to attach !eitimate
conditions to it.
<hree ustices dissented and wou!d ha$e not
reAuired the Hutterites to be photoraphed to be!icensed. =n three separate opinions, Dustices
be!!a, @e#e!, and ish found that this po!ic"
was not minima!!" impairin, since it wou!d not
sinificant!" enab!e identit" theft to a!!ow the
e0ceptions, and it wou!d ha$e a !are
detrimenta! effect on the Hutterites% wa" of !ife,
since the" wou!d ha$e to emp!o" outsiders to
perform a!! their necessar" dri$in.
Cit" of ontrea! $. 29-2*1' Quebec =nc.,
[2;;-] ' S.C.R. 1(1, 2;;- SCC 2 is a !eadin
Supreme Court of Canada decision on freedom
of e0pression under section 25b6 of the
Canadian Charter of Rihts and reedoms. <he
Court he!d that a strip c!ub has no constitutiona!
riht to broadcast music into the streets in order
to attract customers. <he decision stated that
!ocation of the e0pression was a factor in
considerin if there was a $io!ation.
Contents [hide]
1 #ac&round
2 )pinion of the Court
' See a!so
( /0terna! !in&s
#ac&round[edit]
=n 199, the owner of a ontrea! strip c!ub on
Ste-Catherine Street was chared for $io!atin a
ontrea! b"*!aw which prohibited noise
produced b" sound eAuipment. <he owner
cha!!ened the chare on the rounds that the
municipa! !aw was a $io!ation of his freedom of
e0pression under section 25b6 of the Charter.
#oth the Quebec Superior Court and the
Quebec Court of ppea! areed that the !aw
$io!ated the freedom of e0pression and cou!d not
be sa$ed under section 1 of the Charter.
<he fo!!owin issues where put to the Supreme
CourtF
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Goes the municipa!it" ha$e the power to enact
the !aw
Goes the b"*!aw =nfrine Section 25b6 of the
Canadian Charter
=n a si0 to one decision the Court found that theb"*!aw was $a!id, that it $io!ated the freedom of
e0pression, but was sa$ed under section 1.
)pinion of the Court[edit]
Chief Dustice c@ach!in and Dustice Geschamps
wrote the decision for the maorit". =n their
decision the" e0amined the scope of the
freedom of e0pression and added that the
!ocation of the e0pression was re!e$ant to a
findin of a $io!ation. =n the current situation,
there was a $io!ation.
<he $io!ation was found to be ustified under
section 1. <he" he!d that the purpose of
contro!!in noise po!!ution was a sufficient!"
important purpose and the means a$ai!ab!e
were reasonab!e.
Char&aoui $. Canada 5inister of CitiJenship
and =mmiration6, 2;;7 SCC 9 is a !andmar&
decision of the Supreme Court of Canada on the
constitutiona!it" of procedures for determinin
the reasonab!eness of a securit" certificate and
for re$iewin detention under a certificate. <he
Court he!d that the securit" certificate process,
which prohibited the named indi$idua! frome0aminin e$idence used to issue the certificate,
$io!ated the riht to !ibert" and habeas corpus
under section 7, 9 and 1; of the Canadian
Charter. <he Court howe$er reected the
appe!!ant aruments that the e0tension of
detentions $io!ated the riht aainst indefinite
detention, that the differentia! treatment $io!ated
eAua!it" rihts, and that the detention $io!ated
the ru!e of !aw. s remed", the Court dec!ared
the udicia! confirmation of certificates and
re$iew of detention to be of no force and effect,
stri&in down artic!es '' and 77 to 8- of the
=mmiration and Refuee 3rotection ct, but
suspended the ru!in for one "ear.
Contents [hide]
1 #ac&round
1.1 Char&aoui
1.2 !mrei
1.' Har&at
2 Gecision of the Court
' /$ents SubseAuent to the Gecision
( See a!so
- otes
/0terna! !in&s
.1 Court documents
.2 Commentar"
#ac&round[edit]
Char&aoui[edit]
=n 2;;', di! Char&aoui, a permanent resident in
Canada since 199-, was arrested and
imprisoned under a securit" certificate issued b"
the So!icitor Eenera! of Canada 5then +a"ne
/aster6 and the inister of =mmiration 5then
Genis Coderre6. <he e$idence upon which the
certificate was issued is secret, disc!osed neither to Char&aoui nor his !aw"ers. 3ub!ic summaries
of the e$idence issued b" the edera! Court
a!!eed a connection with the bin @aden
networ&. Char&aoui appea!ed his detention
three times before bein re!eased on the fourth
tr" in ebruar" 2;;-, ha$in spent a!most two
"ears in Ri$i^re*des*3rairies prison in ontrea!.
He was re!eased under se$ere!" restricti$e bai!
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conditions. Char&aoui has ne$er been chared
or tried. <he certificate aainst Char&aoui has
ne$er underone an" udicia! re$iewI the edera!
Court suspended its re$iew process in arch
2;;-, pendin a new decision from the inister
of =mmiration on Char&aoui%s deportabi!it" 5a
decision which e$a!uates, inter a!ia, ris& to r.
Char&aoui6.
!mrei[edit]
Hassan !mrei is a forein nationa! who was
ranted refuee status in Canada in Dune 2;;;.
=t was !ater reported that !mrei was potentia!!"
in$o!$ed with a terrorist networ& that supported
)sama bin @aden and was further in$o!$ed in
forin tra$e! documentation. !mrei wasarrested on )ctober 19 of 2;;1 on a securit"
certificate and has been in custod" to this da".
<he certificate has since been uphe!d as $a!id b"
the edera! Court.
=n Gecember 2;;1 the o$ernment attempted to
ha$e !mrei dec!ared a daner to Canadian
securit" thereb" be deported to S"ria. =n
Gecember 2;;' the dec!aration was i$en.
!mrei souht udicia! re$iew of the decision todeport him and a sta" was ranted in o$ember
2;;'.
Har&at[edit]
<he inister of CitiJenship and =mmiration
issued a securit" certificate under section '( of
the =mmiration and Refuee 3rotection ct
5=R36 for ohamed Har&at, an !erian !i$in in
Canada, on the basis that the" reasonab!"be!ie$ed he was supportin terrorist acti$it". <he
certificate was re$iewed b" a edera! Court
ude under section 77 of =R3. <he edera!
ude found that the certificate was reasonab!e.
[1] Har&at cha!!ened constitutiona!it" of the
pro$isions of =R3 under which the securit"
certificate was re$iewed.
@ea$e to appea! to the Supreme Court was
ranted on )ctober 2;, 2;;-.[2]
Gecision of the Court[edit]
Chief Dustice c@ach!in, writin for a unanimous
court, ho!ds that sections '' and 77 to 8- of the
=R3 unreasonab!" $io!ates sections 7, 9 and 1;
of the Canadian Charter of Rihts and
reedoms.
)n the section 1 ana!"sis for ustification of the
$io!ation the Court he!d that the certificate
process was not minima!!" impairin. <he Court
cited a c!earance s"stem used e!sewhere in the
wor!d that wou!d desinate certain !aw"ers to
$iew the e$idence on beha!f of the accused.
<he court a!so found that s. 8(526 of the =R3
was unconstitutiona! because it denied a prompt
hearin to forein nationa!s b" imposin a 12;*
da" embaro on an" app!ication for re!ease. <he
court corrected this defect b" remo$in this
mandator" waitin*period.[']
/$ents SubseAuent to the Gecision[edit]
)n Du!" '1, 2;;9 the Crown admitted there was
insufficient e$idence to upho!d the securit"
certificate aainst r. Char&aoui. <his fo!!owed
the Crown withdrawin much of its e$idence in
the face of Court orders for reater
transparenc". =n response Dustice <remb!a"*
@amer presidin o$er the case issued a directi$eon uust -, 2;;9 sa"in she wi!! consider
whether she shou!d Auash the certificate or
order the inisters to re$o&e it themse!$es on
her return from ho!ida"s, in ear!" September.[(]
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)n September 2(, 2;;9 Dustice <remb!a"*
@amer announced she wou!d !ift a!! restrictions
on r. Char&aoui b" the end of the da".[-]
Quebec 5ttorne" Eenera!6 $. Canadian )wners
and 3i!ots ssociation, 2;1; SCC '9, [2;1;] 2
SCR -', a!so referred to as Quebec $. C)3,
is a !eadin case of the Supreme Court ofCanada on determinin the app!icabi!it" of the
doctrines of interurisdictiona! immunit" and
federa! paramountc" in Canadian constitutiona!
!aw.
Contents [hide]
1 <he facts
2 <he courts be!ow
' Gecision of the Supreme Court of Canada
'.1 Gissent
( =mpact
- References
See a!so
7 /0terna! !in&s
<he facts[edit]
n aerodrome, reistered under the federa!
eronautics ct, was constructed on !and Joned
as aricu!tura! in the pro$ince of Quebec.
Section 2 of the Quebec ct respectin the
preser$ation of aricu!tura! !and and aricu!tura!
acti$ities 5LR3@M6 prohibited the use of !ots
in a desinated aricu!tura! reion for an"
purpose other than aricu!ture, subect to prior
authoriJation b" the Commission de protection
du territoire arico!e du Qu4bec.
Since the CommissionNs permission was not
obtained prior to constructin the aerodrome,
the Commission ordered the return of the !and to
its oriina! state pursuant to the R3@. <he
CommissionNs decision was cha!!ened on the
round that aeronautics is within federa!
urisdiction.
<he courts be!ow[edit]
<he dministrati$e <ribuna! of Quebec, the
Court of Quebec and the Superior Court of
Quebec a!! uphe!d the Commission%s decision,
but the Quebec Court of ppea! found that
interurisdictiona! immunit" prec!uded the
Commission from orderin the dismant!in of the
aerodrome.
Gecision of the Supreme Court of Canada[edit]
<he appea! was dismissed. =nterurisdictiona!immunit" was he!d to app!" in the matter, under
a two*part test that was stated b" c@ach!in CDF
ndrews $. @aw Societ" of #ritish Co!umbia,
[1989] 1 SCR 1(' is the first Supreme Court of
Canada case to dea! with section 1- 5eAua!it"rihts6 of the Canadian Charter of Rihts and
reedoms. =n the case the court out!ined a test,
sometimes ca!!ed the ndrews test to determine
if there has been a prima facie $io!ation of
eAua!it" rihts.
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Contents [hide]
1 Histor"
2 Dudment
2.1 =mportant iures
2.2 Reasonin
' References
( /0terna! !in&s
Histor"[edit]
ndrews, a #ritish subect and a permanent
resident in Canada, met a!! the reAuirements for
admission to the pro$incia! bar with the
e0ception that he was not a Canadian citiJen. ndrews brouht a motion to stri&e down the
reAuirement for citiJenship on the rounds it
$io!ated s. 1- of the Charter.
t the <ria! !e$e!, Supreme Court of #ritish
Co!umbia he!d in fa$our of the @aw Societ". )n
appea! to the #ritish Co!umbia Court of ppea!
the ru!in was o$erturned.
Dudment[edit]
<he issue put to the court was whether the
reAuirement of Canadian citiJenship for
admission to the #ritish Co!umbia bar is an
infrinement upon or denia! of the eAua!it" rihts
uaranteed b" s. 1-516 of the Charter. nd if so,
whether it is ustified under s. 1.
<he court he!d that section (2 of #arristers andSo!icitors ct $io!ated s. 1- and it cou!d not be
sa$ed under s. 1. <he maorit" was written b"
+i!son D. with Gic&son C.D. and @%Heureu0*Gub4
D. concurrin.
=n dissent c=nt"re D. and @amer D. disareed
on the point of the s. 1 ana!"sis, be!ie$in that it
wou!d be uphe!d on the basis of reasonab!e
!imit. <he opinion on the test, howe$er, was
unanimous.
=mportant iures[edit]
@ist of important fiures in the appea!F[1]
=rwin athanson, Q.C., and Rh"s Ga$ies, for the
appe!!ant @aw Societ" of #ritish Co!umbia.
Doseph r$a", for the appe!!ant ttorne" Eenera!of #ritish Co!umbia.
/!iJabeth C. Eo!dber and Ga$id Gin&!ecoc&, for
the inter$ener the ttorne" Eenera! for )ntario.
Dean*Y$es #ernard and Du!ie Hudon, for the
inter$ener the ttorne" Eenera! of Quebec.
!ison Scott, for the inter$ener the ttorne"
Eenera! of o$a Scotia.
Robert E. Richards, for the inter$ener the
ttorne" Eenera! for Sas&atchewan.
Richard . <a"!or, for the inter$ener the ttorne"
Eenera! for !berta.
3. #. C. 3epper, Q.C., for the inter$ener the
ederation of @aw Societies of Canada.
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G. E. Cowper and +. S. artin, for the
respondents.
ar" /berts and Ewen #rods&", for the
inter$ener the +omen%s @ea! /ducation and ction und.
D. Ga$id #a&er, for the inter$ener the Coa!ition of
3ro$incia! )raniJations of the Handicapped.
Ste$en #arrett, for the inter$eners the Canadian
ssociation of >ni$ersit" <eachers and the
)ntario Confederation of >ni$ersit" acu!t"
ssociations.
Reasonin[edit]
<he court first defined a enera! approach to the
eAua!it" uarantee. <he court stated that the
section is not a enera! uarantee of eAua!it",
rather it is on!" concerned with eAua! app!ication
of the !aw. =t was further stated that it shou!d be
reconiJed that not a!! differences in treatment
wi!! resu!t in ineAua!it" and that identica!treatment ma" resu!t in ineAua!it".
s such, the suestion to app!" the same !ea!
ru!es to roups or indi$idua!s who are simi!ar!"
situated 5simi!ar!" situated test where !i&es are
treated a!i&e and dis!i&es different!"6 was firm!"
reected. <he case of #!iss $. Canada, a pre*
Charter SCC case where a prenant woman
was denied emp!o"ment benefits, was
considered as an e0amp!e of the prob!ems withsuch an approach.
=nstead the court concentrated on the prohibition
on discrimination.
. . . discrimination ma" be described as a
distinction, whether intentiona! or not but based
on rounds re!atin to the persona!
characteristics of the indi$idua! or roup which
has the effect of imposin burdens, ob!iations,
or disad$antaes on such indi$idua! or roup not
imposed on others, or which withho!ds or !imits
access to opportunities, benefits, and
ad$antaes a$ai!ab!e to other members of
societ". Gistinctions based on persona!
characteristics attributed to an indi$idua! so!e!"
on the basis of association with a roup wi!!
rare!" escape the chare of discrimination, whi!e
those based on an indi$idua!Ns merits and
capacities wi!! rare!" be so c!assified. 5p. 28;6
<he court states the discrimination must be
based on an enumerated or ana!oous
rounds, and the indi$idua! see&in to stri&e
down a !aw must demonstrate the e0istence of
differentia! treatment based on either of the two
rounds. rom there the onus shifts to the
Crown who must show the !aw ustified under s.
1.
R. $. ?app is a 2;;8 Supreme Court of Canada
case dea!in with an appea! from a #ritish
Co!umbia Court of ppea! decision that he!d that
a communa! fishin !icense ranted e0c!usi$e!"
to boriina!s did not $io!ate section 1- of the
Canadian Charter of Rihts and reedoms. <he
Supreme Court dismissed the appea! on the
basis that the distinction based on an
enumerated or ana!oous round in a
o$ernment proram wi!! not constitute
discrimination under s. 1- if, under s. 1-526F 516
the proram has an ame!iorati$e or remedia!
purposeI and 526 the proram tarets a
disad$antaed roup identified b" the
enumerated or ana!oous rounds. =n other
words the court found that the prima facie
discrimination was a!!owed because it was
aimed at impro$in the situation of a
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disad$antaed roup as a!!owed b" s. 1-526 of
the Charter.
<his decision reconiJes difficu!t" found with
@aw $. Canada 5inister of /mp!o"ment and=mmiration6 in tr"in to emp!o" Lhuman dinit"M
as a !ea! test. o doubt that human dinit" is
an essentia! $a!ue under!"in s.1-, but it is an
abstract and subecti$e notion that, e$en with
the uidance of the ( factors out!ined in @aw, are
confusin to app!" and ha$e pro$en to be an
additiona! burden on eAua!it" c!aimants. <his
case interprets @aw so that it does not impose a
new and distincti$e test for discrimination, but
rather affirms the approach to substanti$e
eAua!it" set out in ndrews $. @aw Societ" of
#ritish Co!umbia and de$e!oped in the fo!!owindecisions.
<he centra! purpose of combattin discrimination
under!ies both ss.1-516 and 1-526. Section 1-516
focuses on pre$entin o$ernments from
ma&in distinctions based on the enumerated or
ana!oous rounds that ha$e the effect of
perpetuatin roup disad$antae and preudice,
or impose disad$antae on the basis of
stereot"pin. Section 1-526 focuses on enab!ino$ernments to proacti$e!" combat e0istin
discrimination throuh affirmati$e measures.
ection 1- of the Canadian Charter of Rihts and
reedoms contains uaranteed eAua!it" rihts.
s part of the Constitution, the section prohibits
certain forms of discrimination perpetrated b"
the o$ernments of Canada with the e0ceptionof ame!iorati$e prorams 5affirmati$e action6 and
rihts or pri$i!ees uaranteed b" or under the
Constitution of Canada in respect of
denominationa!, separate or dissentient schoo!s
5re!iious education6.
Rihts under section 1- inc!ude racia! eAua!it",
se0ua! eAua!it", menta! disabi!it", and ph"sica!
disabi!it". =n its urisprudence, it has a!so been a
source of a" rihts in Canada. <hese rihts areuaranteed to /$er" indi$idua!, that is, e$er"
natura! person. <his wordin e0c!udes !ea!
persons such as corporations, contrastin other
sections that use the word e$er"one, where
!ea! persons were meant to be inc!uded.
Section 1- has been in force since 198-.
Contents [hide]
1 <e0t
2 #ac&round
' eanin and purpose of eAua!it"
( pp!ication of section fifteen
(.1 Current interpretation
(.1.1 /numerated or ana!oous rounds
(.2 3ast interpretations* the @aw test
(.2.1 Gifferentia! treatment
(.2.2 Giscrimination
- /nforcement
otes
7 /0terna! !in&s
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<e0t[edit]
>nder the headin of /Aua!it" Rihts this
section statesF
L 1-. 516 /$er" indi$idua! is eAua! before
and under the !aw and has the riht to the eAua!
protection and eAua! benefit of the !aw without
discrimination and, in particu!ar, without
discrimination based on race, nationa! or ethnic
oriin, co!our, re!iion, se0, ae or menta! or
ph"sica! disabi!it".
526 Subsection 516 does not prec!ude an" !aw,
proram or acti$it" that has as its obect the
ame!ioration of conditions of disad$antaed
indi$idua!s or roups inc!udin those that aredisad$antaed because of race, nationa! or
ethnic oriin, co!our, re!iion, se0, ae or menta!
or ph"sica! disabi!it".
M
#ac&round[edit]
<he Canadian #i!! of Rihts of 19; had
uaranteed the riht of the indi$idua! to eAua!it"
before the !aw and the protection of the !aw./Aua! protection of the !aw is a riht that has
been uaranteed b" the /Aua! 3rotection C!ause
in the ourteenth mendment to the >nited
States Constitution since 188.[1] Section 1-
itse!f dates bac& to the ear!iest draft of the
Charter, pub!ished in )ctober 198;, but it was
worded different!". =t read,
L 516 /$er"one has the riht to eAua!it"
before the !aw and to eAua! protection of the !awwithout discrimination because of race, nationa!
or ethnic oriin, co!our, re!iion, ae or se0.
526 <his section does not prec!ude an" !aw,
proram or acti$it" that has as its obect the
ame!ioration of conditions of disad$antaed
persons or roups.[2]
M
Gurin the draftin, the uarantee to e$er"one
was dropped in fa$our of e$er" indi$idua!, with
the intent that corporations cou!d not in$o&eeAua!it" rihts.['] =n addition, whi!e the oriina!
$ersion spo&e of eAua!it" before the !aw and
eAua! protection of the !aw, the section u!timate!"
enacted inc!uded uarantees of eAua!it" under
the !aw and eAua! benefit of the !aw. <he reason
for these additions was to encourae a
enerous readin of section 1-. =n the #i!! of
Rihts cases ttorne" Eenera! of Canada $.
@a$e!! 5197(6 and #!iss $. Canada 519796,
Supreme Court Dustice Ro!and Ritchie had said
on!" the app!ication, and not the outcome, of the
!aw must be eAua!, thereb" necessitatin ane0p!icit uarantee of eAua!it" under the !awI and
that !ea! benefits need not be eAua!, thereb"
necessitatin an e0p!icit uarantee of eAua!
benefit of the !aw.[(]
<houh the Charter itse!f came into effect on
pri! 17, 1982, section 1- was not brouht into
force unti! pri! 17, 198-, in accordance with
section '2526 of the Charter. <he reason for this
was so that pro$incia! and federa! o$ernmentswou!d ha$e enouh time to re$iew their
!eis!ation and ma&e the appropriate chanes to
an" discriminator" !aws.
eanin and purpose of eAua!it"[edit]
ccordin to the Supreme Court of Canada%s
Section 1- urisprudence, the eAua!it"
uarantees of section 1- are aimed at
pre$entin the $io!ation of essentia! humandinit" and freedom throuh the imposition of
disad$antae, stereot"pin, or po!itica! and
socia! preudices, and to promote a societ" in
which a!! persons eno" eAua! reconition at !aw
as human beins or as members of Canadian
societ", eAua!!" capab!e and eAua!!" deser$in
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of concern, respect and consideration.
5=acobucci D. in @aw $. Canada, [1999]6
<o that end, the Charter reconiJes four
dimensions of eAua!it", inc!udin substanti$eeAua!it".
/Aua!it" before the !aw is eAua!it" in the
administration of ustice, where a!! indi$idua!s
are subect to the same crimina! !aws in the
same manner b" !aw enforcement and the
courts.
/Aua!it" under the !aw is eAua!it" in the
substance of the !aw, where the content of the
!aw is eAua! and fair to e$er"one so that
e$er"one e0periences the same resu!t.
/Aua! benefit of the !aw ensures that benefits
imposed b" !aw wi!! be proportionate.
/Aua! protection of the !aw ensure that the
protections imposed b" !aw wi!! be proportionate
so that the human dinit" of e$er" person is
eAua!!" safeuarded b" the !aw.
>n!i&e forma! eAua!it", which o$er!oo&s persona!
differences, substanti$e eAua!it" is concernedwith the impact of the !aw on different roups of
indi$idua!s. Substanti$e eAua!it" reAuires that
there be an eAua! impact on the person affected
b" the !aw.
pp!ication of section fifteen[edit]
=n an" cha!!ene of section 1-516 the burden of
proof is a!wa"s on the c!aimant. <he Supreme
Court of Canada has endorsed a purposi$einterpretation of Section 1-.
Current interpretation[edit]
fter @aw $. Canada 519996 the Auestion of
whether dinit" was affected was &e" to a
section 1- ana!"sis. =n R. $. ?app 52;;86, the
prob!ems with the dinit" ana!"sis were
reconiJed and the dinit" ana!"sis was
ettisoned. <he Court mandated that the test is,
as it was before, the one found in ndrews $.
@aw Societ" of #ritish Co!umbia 519896F 516 =s
there differentia! treatment on an ana!oous or
enumerated round 526 Goes this round cause
preudice or stereot"pin
/numerated or ana!oous rounds[edit]
Giscrimination based upon se0ua! orientation is
an ana!oous round for discrimination, !eadin
a!! but two pro$incia! courts to !ea!iJe same*se0marriae in Canada.
<he concept of enumerated or ana!oous
rounds oriinated in the essentia! 1989
ndrews case to refer to persona!
characteristics that, when bein the basis of
discrimination, show the discrimination is
unconstitutiona! under section 1-. <here are
nine enumerated rounds e0p!icit!" mentioned in
section 1-, a!thouh the" are not actua!!"
numbered. =n practice, the enumerated rounds
ha$e been i$en !ibera! and broadinterpretations. or e0amp!e, discrimination on
the basis of prenanc" has been ru!ed to be se0
discrimination 5#roo&s $. Canada Safewa" @td.6.
s section 1-%s words in particu!ar hint that the
e0p!icit!" named rounds do not e0haust the
scope of section 1-, additiona! rounds can be
considered if it can be shown that the roup or
indi$idua!%s eAua!it" rihts were denied in
comparison with another roup that shares a!! of the same characteristics e0cept for the persona!
characteristic at issue. persona! characteristic
is considered ana!oous to the ones
enumerated in section 1- if it is immutab!e or
cannot be chaned or can on!" be chaned at
e0cessi$e cost 5constructi$e!" immutab!e6. <hus
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far, se$era! ana!oous rounds ha$e been
identifiedF
se0ua! orientation 5/an $. Canada [199-],
Uriend $. !berta [1998], . $. H. [1999] @itt!eSisters #oo& and rt /mporium $. Canada
[2;;;]6 <his findin has !ed pro$incia! courts 5the
Supreme Court dec!ined in Reference re Same*
Se0 arriae to ru!e on the issue as the
o$ernment had $oiced its intent to !ea!iJe
them an"wa"6 to find that !aws aainst same*se0
marriae in Canada wou!d be unconstitutiona!.
=n Ha!pern $. Canada 5ttorne" Eenera!6 52;;'6,
the Court of ppea! for )ntario used section 1-
to !ea!iJe same*se0 marriae in )ntario.
marita! status 5iron $. <rude!, [199-], o$aScotia $. +a!sh [2;;2]6,
off*reser$e aboriina! statusTboriina!it"*
residence 5Corbiere $. Canada6.
citiJenship 5ndrews $. @aw Societ" of #ritish
Co!umbia, [1989], @a$oie $. Canada [2;;;]6
s we!!, the courts ha$e reected se$era!
ana!oous rounds inc!udinF
ha$in a taste for mariuana. 5R. $. a!mo*
@e$ine6
emp!o"ment status 5Reference Re +or&ers%
Compensation ct [1989], Ge!is!e $. Canada
[1999]6
!itiants aainst the Crown 5Rudo!ph +o!ff $.
Canada [199;]6
pro$ince of prosecutionTresidence 5R. $. <urpin
[1989], R. $. S. 5S.6 [199;]6
membership in mi!itar" 5R. $. Eenereu06
new resident of pro$ince 5Hai $. Canada6
persons committin crimes outside Canada 5R.
$. inta6
bein and e0treme po$ert" 5R. $. #an&s6
3ast interpretations* the @aw test[edit]
s first out!ined in @aw $. Canada, discrimination
can be identified throuh a three*step test.
Gid the !aw, proram, or acti$it" impose
differentia! treatment between the c!aimant and a
comparator roup <hat is, was a distinction
created between the roups in purpose or
effect
=f so, was the differentia! treatment based on
enumerated or ana!oous rounds
=f so, did the !aw in Auestion ha$e a purpose or
effect that is discriminator" within the meanin of
the eAua!it" uarantee
Gifferentia! treatment[edit]
<his step as&s whether there is a forma!
distinction between the c!aimant and a
comparator roup based on one or more
persona! characteristics or e!se does it fai! to
ta&e into account the c!aimant%s current
disad$antaed position
<he se!ection of the comparator roup is
intera!. <he" must possess a!! the Aua!ities of
the c!aimant e0cept for the persona!
characteristic at issue. 5Corbiere $. Canada
[1999] 2 S.C.R. 2;'6 =n Hode $. Canada
5inister of Human Resources Ge$e!opment6
52;;(6, it was noted that a court ma" reect a
c!aimant%s choice for a comparator roup, and
that choosin the wron comparator roup ma"
cause the rihts c!aim to fai!.
=n +ith!er $. Canada 5ttorne" Eenera!6 52;116,
the Supreme Court has ettisoned the
comparator roup reAuirement, mandatin that
instead a conte0tua! ana!"sis is the wa" to o.
<he" reconiJed that comparator roup ana!"sis
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was !eadin to much inustice, somethin a!so
noted in R. $. ?app.
Giscrimination[edit]
or discrimination to be found it must be
determined if the burden or denia! of benefit
harms an indi$idua!%s human dinit" 5@aw $.
Canada6. <hat is, the discrimination wi!!
marina!iJe, inore, or de$a!ue an indi$idua!%s
sense of se!f*respect and se!f*worth.
@aw suests four conte0tua! factors which
can he!p uide a conte0tua! ana!"sis of whether
the imputed distinction $io!ates the human
dinit" of the c!aimant. one of these are
determinati$e of discrimination, and the Court
must not consider a!! of them in e$er" case. <his
!ist is a!so not e0hausti$e, a!thouh the standard
@aw ana!"sis has "et to de$e!op an" additiona!
factorsF
pre*e0istin disad$antae
corre!ation between the rounds of the c!aim
and the actua! needs, capacities, andcircumstances
ame!iorati$e purpose or effect of the !aw on
more disad$antaed roups
nature and scope of interest
Durisprudence has shown that each of these
factors are weihed different!" dependin on the
conte0t.
3re*e0istin disad$antae as&s whether there
was a pre*e0istin disad$antae or $u!nerabi!it"
e0perienced b" the c!aimant. =n Corbiere $.
Canada c@ach!in described this factor to be
the most compe!!in and suesti$e of
discrimination if pro$en. Howe$er, the absence
of a pre*e0istin disad$antae does not
necessari!" prec!ude a c!aimant from succeedin
as seen in <rociu& $. #ritish Co!umbia.
+ith corre!ation between rounds and rea!it",
the c!aimant must show that there is a !in&between the rounds raise and the c!aimant%s
actua! needs, circumstances, and capacities.
Giscrimination wi!! be more difficu!t to estab!ish if
the !aw ta&es the Aua!ities of the c!aimant into
account. =n Eosse!in $. Quebec 5ttorne"
Eenera!6 [2;;2] the court was sharp!" di$ided on
this point. <he maorit" said that the !aw that
pro$ided !ess socia! assistance to "outh was
connected to the abi!it" of "outh to find
emp!o"ment easi!". Howe$er, the dissenters
insisted that the e$idence did not show this to be
actua! Aua!ities, but were rather stereot"pes.
<he ame!iorati$e purpose factor as&s whether
there is a distinction made for the purpose of
aidin an e$en !ess ad$antaed roup. =f this
can be shown then it is un!i&e!" that the c!aimant
wou!d be ab!e to show a $io!ation of their dinit".
Howe$er, @o$e!ace $. )ntario warned that the
ana!"sis shou!d not be reduced to a ba!ancin of
re!ati$e disad$antaes.
<he fina! factor of nature and scope considers
the nature and scope of the interest affected b"
the !aw. <he more se$ere and !oca!iJed the
resu!ts of the !aw for those affected the more
!i&e!" to show that the distinctions in treatment
responsib!e are discriminator".
/nforcement[edit]
Section 1-, !i&e the rest of the Charter, is main!"
enforced b" the courts throuh !itiation under
sections 2( and -2 of the Constitution ct, 1982.
Such !itiation can be $er" cost!".
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<o o$ercome this barrier, the federa! o$ernment
e0panded the Court Cha!!enes 3roram of
Canada[-] in 198- to fund test cases
cha!!enin federa! !eis!ation in re!ation to the
eAua!it" rihts uaranteed b" the Charter. Some
fundin has been pro$ided to cha!!ene
pro$incia! !aws under a $ariet" of prorams in
the past, but its a$ai!abi!it" has $aried
considerab!" from pro$ince to pro$ince.[]
=n September 2;;, the edera! o$ernment
announced that it wou!d be trimmin the fat and
refocusin spendin on the priorities of
Canadians. <his inc!uded cuttin a!! fundin to
the Court Cha!!enes 3roram.[7]
Uriend $. !berta [1998] 1 S.C.R. (9' is an
important Supreme Court of Canada case thatdetermined that a !eis!ati$e omission can be
the subect of a Charter $io!ation. <he case
in$o!$ed a dismissa! of a teacher because of his
se0ua! orientation and was an issue of reat
contro$ers" durin that period.
Contents [hide]
1 Histor"
2 Ru!in
2.1 Section 1-
2.2 Section 1
2.' Gissentin $iew
' Response
( See a!so
- References
/0terna! !in&s
Histor"[edit]
Ge!win Uriend was dismissed from his position
as a !ab coordinator at ?in%s Co!!ee, a pri$ate
re!iious co!!ee in /dmonton, !berta, because
of his se0ua! orientation. He was pre$ented from
ma&in a comp!aint under the !berta =ndi$idua!
Rihts 3rotection ct because the !eis!ation did
not inc!ude se0ua! orientation as a prohibited
round of discrimination. Uriend souht a
dec!aration from the !berta Court of Queen%s
#ench that the omission breached section 1- of
the Charter.
Dustice Russe!! of the Court of Queen%s #ench
found in fa$our of Uriend as the co!!ee $io!ated
s. 1- of the Charter and cou!d not be sa$ed
under section 1. <he !berta Court of ppea!, in
a decision written b" Dustice cC!un,
o$erturned the tria! decision.
Ru!in[edit]
<here were two issues put before the Supreme
CourtF
<he court decided "es to the first Auestion and
no to the second. <he" found that there is no
!ea! basis for drawin a distinction of the
Charter scrutiniJin a positi$e act and an
omission.
Section 1-[edit]
<he court !oo&ed at the !anuae of section '2
and found that it does not !imit to on!" positi$e
acts. =t is not on!" to protect aainst
encroachment on rihts or the e0cessi$e
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e0ercise of authorit", as cC!un suested,
rather it is a too! for citiJens to cha!!ene the !aw
in a!! its forms. <he !eis!ature%s si!ence on an
issue does not constitute neutra!it" with first
assessin the app!ication of section 1-.
eutra!it" cannot be assumed. <o do so wou!d
remo$e the omission from the scope of udicia!
scrutin" under the Charter. <he appe!!ants ha$e
cha!!ened the !aw on the round that it $io!ates
the Constitution of Canada, and the courts must
hear and consider the cha!!ene.
<he court then !oo&ed at the app!ication of the
Charter to pri$ate acti$ities.
!thouh the [ct] tarets pri$ate acti$ities and
as a resu!t has an %effect% on those acti$ities it
does not fo!!ow that this indirect effect shou!d
remo$e the [ct] from the pur$iew of the Charter.
=t wou!d !ead to an unacceptab!e resu!t if an"
!eis!ation that reu!ated pri$ate acti$it" wou!d
for that reason a!one be immune from Charter
scrutin".
<he respondents% submission has fai!ed to
distinuish between pri$ate acti$it" and !awsthat reu!ate pri$ate acti$it". <he former is not
subect to the Charter, whi!e the !atter ob$ious!"
is.
Section 1[edit]
<he court fo!!owed this with a section 1 ana!"sis
to which the" decided was not app!icab!e. =n
conc!udin, the court ru!ed that to remed" the
situation se0ua! orientation must be read into
the impuned pro$ision of the ct.
irst!", the respondents fai!ed to show a
pressin and substantia! obecti$e. <he Court
dismissed the respondents% submission, that the
predicament wou!d be rare, as on!" an
e0p!anation and not an obecti$e, as it !ac&ed
an" description of oa! or purpose.
Second!", the respondents fai!ed to show a
rationa! connection. <he Court was especia!!"
harsh on this point, statinF
ar from bein rationa!!" connected to the
obecti$e of the impuned pro$isions, the
e0c!usion of se0ua! orientation from the ct is
antithetica! to that oa!. =ndeed, it wou!d be
nonsensica! to sa" that the oa! of protectin
persons from discrimination is rationa!!"
connected to, or ad$anced b", den"in such
protection to a roup which this Court has
reconiJed as historica!!" disad$antaed. 5para.
1196
<he respondents attempted to ustif" the rationa!
connection as part of an incrementa!ist approach
simi!ar to one used b" Eaan /an $. Canada,
which the Court reected as inappropriate and a
poor basis for ustif"in a Charter $io!ation.
<hird!", the respondents fai!ed to show that there
was minima! impairment. <houh the
!eis!ature must ba!ance between the competin
rihts of re!iious freedoms and protections ofa"s and !esbians, the !eis!ature made no
compromise between rihts at a!!.
Gissentin $iew[edit]
<he so!e dissentin opinion was written b"
Dustice Dohn C. aor. He arued that readin
in a se0ua! orientation pro$ision in the =ndi$idua!
Rihts 3rotection ct was not necessari!" more
desirab!e than simp!" dismissin the entire
=R3 as unconstitutiona!, since the !berta
!eis!ature had repeated!" indicated the"
specifica!!" did not wish to inc!ude such rihts in
the document. aor wrote that the =R3 shou!d
in fact be o$erturned. He then suested that
the !eis!ature ma" in turn wish to use the
otwithstandin c!ause to pass a new =R3 that
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wou!d be capab!e of e0c!udin protection for
homose0ua!s.
Response[edit]
o!!owin the decision, some !berta @s
ca!!ed for the o$ernment to in$o&e Canada%s
notwithstandin c!ause to o$erru!e the decision.
[1] Howe$er, !berta 3remier Ra!ph ?!ein opted
not to do this. oreo$er, ?!ein said an" pub!ic
protest was hatefu!, which anered the riht*
win.[2] )ne ationa! 3ost writer has suested
that ?!ein%s decision represented a ap from his
words aainst bo!d udicia! decisions.[']
Reference re Securities ct is a !andmar&
opinion of the Supreme Court of Canada to a
reference Auestion posed on the e0tent of the
abi!it" of the 3ar!iament of Canada to use its
trade and commerce power.
Contents [hide]
1 #ac&round
1.1 3ro$incia! references
1.2 <he Auestion posed
2 ruments offered at the hearin
2.1 <rade as a who!e
2.2 bi!it" of the pro$inces to reu!ate oint!" or
se$era!!"
2.' DeopardiJin the successfu! operation of the
scheme
' )pinion of the Supreme Court of Canada
( Sinificance
- References
#ac&round[edit]
See a!soF Canadian securities reu!ation
Canadian securities reu!ation is uniAue in that
the fie!d is so!e!" reu!ated b" pro$incia! and
territoria! o$ernments. +hi!e those
o$ernments ha$e wor&ed to harmoniJe man"
of their po!icies, there is sti!! enouh $ariation
that securities issuers must reconci!e in order to
ha$e their securities trade amon residents in
each of the urisdictions in$o!$ed.
Since the 19';s, there has been debate about
the desirabi!it" of estab!ishin a sin!e nationa!
securities reu!ator. =n 2;1;, a draft Canadian
Securities ct was pub!ished,[1] and a reference
Auestion was posed to the Supreme Court of
Canada on its constitutiona!it".
3ro$incia! references[edit]
<he pro$incia! o$ernments of !berta and
Quebec had pre$ious!" posed referenceAuestions to their respecti$e Courts of ppea! on
the subect. =n arch 2;11, the !berta Court of
ppea! ru!ed unanimous!" that the federa!
proposa! in its entiret" was an unconstitutiona!
intrusion into pro$incia! urisdiction.[2][']
=n the same month, the Quebec Court of ppea!
made a simi!ar ru!in in a (*1 sp!it decision, but
stated that sections 1(8*1-2 and 1-8*18 of the
proposed ct 5dea!in with orders for theproduction of information, crimina! offences,
prohibition orders and restitution orders6 were
$a!id under the crimina! !aw power, and that
there was no Auestion that the ct wou!d be
constitutiona! if it focused so!e!" on internationa!
and interpro$incia! reu!ation of securities
transactions.[(][-] <he !berta Court had
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considered the crimina! !aw pro$isions to be so
incidenta! to the purpose of the ct that the"
cou!d not stand on their own, and it did not
discuss in detai! the internationa! and
interpro$incia! Auestions.
<he Auestion posed[edit]
L
=s the proposed Canadian Securities ct within
the !eis!ati$e authorit" of the 3ar!iament of
Canada[]
M
ruments offered at the hearin[edit]
t issue was the Auestion of whether the
reu!ation of the securities industr" is a $a!id
e0ercise of the federa! trade and commerce
power.[7] =n that reard, aruments focused on
the app!icabi!it" of the fi$e criteria for such an
ana!"sis that were pre$ious!" identified in
Eenera! otors of Canada @td. $. Cit" ationa!
@easinF
the impuned !eis!ation must be part of a
reu!ator" schemeI
the scheme must be monitored b" the continuin
o$ersiht of a reu!ator" aenc"I
the !eis!ation must be concerned with trade as
a who!e rather than with a particu!ar industr"I
the !eis!ation shou!d be of a nature that
pro$inces oint!" or se$era!!" wou!d be
constitutiona!!" incapab!e of enactinI and
the fai!ure to inc!ude one or more pro$inces or
!oca!ities in a !eis!ati$e scheme wou!d
eopardiJe the successfu! operation of the
scheme in other parts of the countr".
=f the trade and commerce power does not
app!", then securities reu!ation, bein in pith
and substance under the propert" and ci$i! rihts
power, fa!!s e0c!usi$e!" within pro$incia!
urisdiction, as the doub!e aspect and
paramountc" doctrines wou!d not come into p!a".
#oth sides areed that the first two Eenera!
otors criteria were met, and subseAuent
aruments re$o!$ed around the other three.
umerous submissions were presented to the
Court on this Auestion.[8]
<here was enera! areement amon obser$ers
that the resu!tin decision wi!! ha$e an impact onCanadian federa!ism be"ond the immediate
Auestion of securities reu!ation.[9]
<rade as a who!e[edit]
Canada arued that securities !aw transcends a!!
industries, and thus shou!d be a $a!id e0ercise of
the trade and commerce power, in the same wa"
as for competition !aw. )n the other side, it was
arued that the securities industr" shou!d be
$iewed in the same manner as the insurance
industr", which since CitiJen%s =nsurance Co. $.
3arsons has been he!d to fa!! under pro$incia!
urisdiction.
bi!it" of the pro$inces to reu!ate oint!" or
se$era!!"[edit]
Canada noted that, whi!e the pro$incia!
securities reu!ators efforts to operate a
passport s"stem ha$e met with some success,there are sti!! some sinificant constitutiona!
!imitations on their abi!it" to reu!ate the
securities industr" in the modern aeF
the pro$inces cannot app!" their reu!ations
e0tra*pro$incia!!"I
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the securities industr" has become primari!"
internationa! in scopeI
pro$inces cannot reu!ate federa!!" incorporated
companiesI and
pro$inces !ac& the abi!it" to inc!ude crimina!sanctions with their reu!ations
!berta, amon others, arued that there were
no f!aws in the present passport s"stem that
cou!d not be fi0ed, and that the proposed ct
contained nothin that cou!d not be found in
current pro$incia! !eis!ation.
DeopardiJin the successfu! operation of the
scheme[edit]
s the proposed ct contains an opt*in c!ause
5pro$idin that it wou!d on!" app!" in pro$inces
that choose to participate6, it was arued that
this shows that unanimous pro$incia!
in$o!$ement is not necessar" and that therefore
this shou!d be considered an area that the
pro$inces are more than capab!e of reu!atin
without the in$o!$ement of the edera!
Eo$ernment. Canada responded that this
represented an e0amp!e of the current mode! of
cooperati$e federa!ism that had a!read" beenemp!o"ed in aricu!tura! products mar&etin, and
which was appro$ed b" the Court in Reference
re ricu!tura! 3roducts ar&etin ct.
)pinion of the Supreme Court of Canada[edit]
<he Court he!d that, as present!" drafted, the
proposed ct is not $a!id under the enera!
branch of the federa! power to reu!ate trade
and commerce.[1;][11] =t is main!" focused on
the da"-to-da" reu!ation of a!! aspects of
contracts for securities within the pro$inces,
inc!udin a!! aspects of pub!ic protection and
professiona! competences. <hese matters
remain essentia!!" pro$incia! concerns fa!!in
within propert" and ci$i! rihts in the pro$inces
and are not re!ated to trade as a who!e.
L
[122] ... CanadaNs prob!em is that the proposed
ct ref!ects an attempt that oes we!! be"ond
these matters of undoubted nationa! interest andconcern and reaches down into the detai!ed
reu!ation of a!! aspects of securities. =n this
respect, the proposed ct is un!i&e federa!
competition !eis!ation, which has been he!d to
fa!! under s. 91526 of the Constitution ct, 187.
=t wou!d reu!ate a!! aspects of contracts for
securities within the pro$inces, inc!udin a!!
aspects of pub!ic protection and professiona!
competence within the pro$inces. Competition
!aw, b" contrast, reu!ates on!" anti*competiti$e
contracts and conduct B a particu!ar aspect of
economic acti$it" that fa!!s sAuare!" within thefedera! domain. =n short, the proposed federa!
ct o$erreaches the !eis!ati$e interest of the
federa! o$ernment.
M
Specific aspects of the ct aimed at addressin
matters of enuine nationa! importance and
scope oin to trade as a who!e in a wa" that is
distinct from pro$incia! concerns, inc!udinmanaement of s"stemic ris& and nationa! data
co!!ection, appear to be re!ated to the enera!
trade and commerce power. +ith respect to
these aspects of the ct, the pro$inces, actin
a!one or in concert, !ac& the constitutiona!
capacit" to sustain a $iab!e nationa! scheme.
L
[1;'] S"stemic ris&s ha$e been defined as Lris&sthat occasion a _domino effectN whereb" the ris&
of defau!t b" one mar&et participant wi!! impact
the abi!it" of others to fu!fi!! their !ea!
ob!iations, settin off a chain of neati$e
economic conseAuences that per$ade an entire
financia! s"stemM 5. D. <rebi!coc&, ationa!
Securities Reu!ator Report 52;1;6, at para. 26.
#" definition, such ris&s can be e$asi$e of
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pro$incia! boundaries and usua! methods of
contro!. <he proposed !eis!ation is aimed in part
at respondin to s"stemic ris&s threatenin the
Canadian mar&et $iewed as a who!e. +ithout
attemptin an e0hausti$e enumeration, the
fo!!owin pro$isions of the proposed ct wou!d
appear to address or authoriJe the adoption of
reu!ations directed at s"stemic ris&F ss. 89 and
9; re!atin to deri$ati$es, s. 12516 on short*
se!!in, s. 7' on credit ratin, s. 2285(65c6
re!atin to urent reu!ations and ss. 1;9 and
22( on data co!!ection and sharin.
M
=n sum, the proposed ct o$erreaches enuine
nationa! concerns. +hi!e the economicimportance and per$asi$e character of the
securities mar&et ma", in princip!e, support
federa! inter$ention that is Aua!itati$e!" different
from what the pro$inces can do, the" do not
ustif" a who!esa!e ta&eo$er of the reu!ation of
the securities industr" which is the u!timate
conseAuence of the proposed federa! !eis!ation.
cooperati$e approach that permits a scheme
reconiJin the essentia!!" pro$incia! nature of
securities reu!ation whi!e a!!owin 3ar!iament to
dea! with enuine!" nationa! concerns remains
a$ai!ab!e and is supported b" Canadian
constitutiona! princip!es and b" the practice
adopted b" the federa! and pro$incia!
o$ernments in other fie!ds of acti$ities.
L
[128] <o summariJe, we accept that the
economic importance and per$asi$e character of
the securities mar&et ma", in princip!e, support
federa! inter$ention that is Aua!itati$e!" differentfrom what the pro$inces can do. Howe$er, as
important as the preser$ation of capita! mar&ets
and the maintenance of CanadaNs financia!
stabi!it" are, the" do not ustif" a who!esa!e
ta&eo$er of the reu!ation of the securities
industr" which is the u!timate conseAuence of
the proposed federa! !eis!ation. <he need to
pre$ent and respond to s"stemic ris& ma"
support federa! !eis!ation pertainin to the
nationa! prob!em raised b" this phenomenon,
but it does not a!ter the basic nature of securities
reu!ation which, as shown, remains primari!"
focused on !oca! concerns of protectin
in$estors and ensurin the fairness of the
mar&ets throuh reu!ation of participants.
Uiewin the ct as a who!e, as we must, these
!oca! concerns remain the main thrust of the
!eis!ation B its pith and substance.
[129] <his is not a case of a $a!id federa!
scheme that incidenta!!" intrudes on pro$incia!
powers. =t is not the incidenta! effects of the
scheme that are constitutiona!!" suspectI it is
rather the main thrust of the !eis!ation that oesbe"ond the federa! power. <he federa!
o$ernment proper!" did not in$o&e the anci!!ar"
powers doctrine. <o app!" that doctrine, the
proposed statute considered as a who!e must be
$a!id B which it is not. +e further note that we
ha$e not been as&ed for our opinion on the
e0tent of 3ar!iamentNs !eis!ati$e authorit" o$er
securities reu!ation under other heads of
federa! power or indeed the interpro$incia! or
internationa! trade branch of s. 91526.
[1';] +hi!e the proposed ct must be found
u!tra $ires 3ar!iamentNs enera! trade and
commerce power, a cooperati$e approach that
permits a scheme that reconiJes the essentia!!"
pro$incia! nature of securities reu!ation whi!e
a!!owin 3ar!iament to dea! with enuine!"
nationa! concerns remains a$ai!ab!e.
[1'1] <he $arious proposa!s ad$anced o$er the"ears to de$e!op a new mode! for reu!atin
securities in Canada suest that this matter
possesses both centra! and !oca! aspects. <he
same insiht can be !eaned from the
e0perience of other federations, e$en if each
countr" has its own constitutiona! histor" and
imperati$es. <he common round that emeres
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is that each !e$e! of o$ernment has urisdiction
o$er some aspects of the reu!ation of securities
and each can wor& in co!!aboration with the
other to carr" out its responsibi!ities.
[1'2] =t is not for the Court to suest to the
o$ernments of Canada and the pro$inces the
wa" forward b", in effect, conferrin in ad$ance
an opinion on the constitutiona!it" on this or that
a!ternati$e scheme. Yet we ma" appropriate!"
note the rowin practice of reso!$in the
comp!e0 o$ernance prob!ems that arise in
federations, not b" the bare !oic of eitherTor, but
b" see&in cooperati$e so!utions that meet the
needs of the countr" as a who!e as we!! as its
constituent parts.
[1''] Such an approach is supported b" the
Canadian constitutiona! princip!es and b" the
practice adopted b" the federa! and pro$incia!
o$ernments in other fie!ds of acti$ities. <he
bac&bone of these schemes is the respect that
each !e$e! of o$ernment has for each otherNs
own sphere of urisdiction. Cooperation is the
animatin force. <he federa!ism princip!e upon
which CanadaNs constitutiona! framewor& rests
demands nothin !ess.
M
ddressin the nature of this Auestion within the
conte0t of Canadian federa!ism, the Court notedF
L
[7] =t is a fundamenta! princip!e of federa!ism thatboth federa! and pro$incia! powers must be
respected, and one power ma" not be used in a
manner that effecti$e!" e$iscerates another.
Rather, federa!ism demands that a ba!ance be
struc&, a ba!ance that a!!ows both the federa!
3ar!iament and the pro$incia! !eis!atures to act
effecti$e!" in their respecti$e spheres. cceptin
CanadaNs interpretation of the enera! trade and
commerce power wou!d disrupt rather than
maintain that ba!ance. 3ar!iament cannot
reu!ate the who!e of the securities s"stem
simp!" because aspects of it ha$e a nationa!
dimension.
[8] +e therefore answer the reference Auestion
in the neati$e.
[9] =t is open to the federa! o$ernment and the
pro$inces to e0ercise their respecti$e powers
o$er securities harmonious!", in the spirit of
cooperati$e federa!ism. <he e0perience of other
federations in the fie!d of securities reu!ation,whi!e a function of their own constitutiona!
reAuirements, suests that a cooperati$e
approach miht usefu!!" be e0p!ored, shou!d our
!eis!ators so choose, to ensure that each !e$e!
of o$ernment proper!" dischares its
responsibi!it" to the pub!ic in a coordinated
fashion.
[1;] t this uncture, it is important to stress that
this ad$isor" opinion does not address theAuestion of what constitutes the optima! mode!
for reu!atin the securities mar&et. +hi!e the
parties presented e$idence and aruments on
the re!ati$e merits of federa! and pro$incia!
reu!ation of securities, the po!ic" Auestion of
whether a sin!e nationa! securities scheme is
preferab!e to mu!tip!e pro$incia! reimes is not
one for the courts to decide. ccordin!", our
answer to the reference Auestion is dictated
so!e!" b" the te0t of the Constitution,
fundamenta! constitutiona! princip!es and the
re!e$ant case !aw.
M
Sinificance[edit]
<he immediate impact of the decisionF
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<he rea! Auestion at hand was about the nature
of Canadian federa!ism in dea!in with a matter
that does not fa!! sAuare!" within either federa! or
pro$incia! urisdiction.[12]
<he trade and commerce power, as oriina!!"
concei$ed in 3arsons and c!arified in Eenera!
otors, is sti!! ood constitutiona! !aw that does
not need to be re$isited.
<he propert" and ci$i! rihts power is adeAuate
for dea!in with the da"*to*da" aspects of
securities reu!ation, as the" do not possess a
nationa! dimension.[1']
Certain aspects of the proposed ct wou!d be
$a!id, but on!" those with a nationa! dimension,internationa! and interpro$incia! e!ements, or that
are re!ated to the crimina! !aw power.
<he edera! Eo$ernment has confirmed that it
wi!! not proceed with the proposed ct. <here is
current!" e0tensi$e discussion as to the best
manner for an" reform to proceed.[1(][1-][1]
[17]
Certain obser$ers aree that a nationa!
reu!ator" authorit" with a more focused brief is
sti!! possib!e under other heads of federa! power,
[18] as is the option of institutin a cooperati$e
framewor& with the pro$inces.[19] <here is
debate as to the !i&e!ihood of the pro$inces%
cooperation.[2;][21] =n Danuar" 2;12, inister of
inance Dim !ahert" stated that wor& is sti!!
continuin with the pro$inces to create a
nationa! reu!ator that wou!d function within the
bounds that the Court dec!ared was within
federa! urisdiction.[22]
<here is a!so concern that, $iewed on the
enera! princip!es of the opinion with respect to
the boundar" between federa! urisdiction and
the pro$incia! propert" and ci$i! rihts power, the
fo!!owin recent!" enacted federa! statutes ma"
a!so be on constitutiona!!" sha&" roundF[2']
3ersona! =nformation 3rotection and /!ectronic
Gocuments ct, and
ihtin =nternet and +ire!ess Spam ct, as we!!
as
amendments adopted in 2;12 to insert diita!
rihts manaement pro$isions into the Cop"riht
ct
Reference re Securities ct is a !andmar&
opinion of the Supreme Court of Canada to a
reference Auestion posed on the e0tent of the
abi!it" of the 3ar!iament of Canada to use its
trade and commerce power.
Contents [hide]
1 #ac&round
1.1 3ro$incia! references
1.2 <he Auestion posed
2 ruments offered at the hearin
2.1 <rade as a who!e
2.2 bi!it" of the pro$inces to reu!ate oint!" or
se$era!!"
2.' DeopardiJin the successfu! operation of the
scheme
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' )pinion of the Supreme Court of Canada
( Sinificance
- References
#ac&round[edit]
See a!soF Canadian securities reu!ation
Canadian securities reu!ation is uniAue in that
the fie!d is so!e!" reu!ated b" pro$incia! and
territoria! o$ernments. +hi!e those
o$ernments ha$e wor&ed to harmoniJe man"
of their po!icies, there is sti!! enouh $ariation
that securities issuers must reconci!e in order to
ha$e their securities trade amon residents in
each of the urisdictions in$o!$ed.
Since the 19';s, there has been debate about
the desirabi!it" of estab!ishin a sin!e nationa!
securities reu!ator. =n 2;1;, a draft Canadian
Securities ct was pub!ished,[1] and a reference
Auestion was posed to the Supreme Court of
Canada on its constitutiona!it".
3ro$incia! references[edit]
<he pro$incia! o$ernments of !berta and
Quebec had pre$ious!" posed reference
Auestions to their respecti$e Courts of ppea! on
the subect. =n arch 2;11, the !berta Court of
ppea! ru!ed unanimous!" that the federa!
proposa! in its entiret" was an unconstitutiona!
intrusion into pro$incia! urisdiction.[2][']
=n the same month, the Quebec Court of ppea!
made a simi!ar ru!in in a (*1 sp!it decision, butstated that sections 1(8*1-2 and 1-8*18 of the
proposed ct 5dea!in with orders for the
production of information, crimina! offences,
prohibition orders and restitution orders6 were
$a!id under the crimina! !aw power, and that
there was no Auestion that the ct wou!d be
constitutiona! if it focused so!e!" on internationa!
and interpro$incia! reu!ation of securities
transactions.[(][-] <he !berta Court had
considered the crimina! !aw pro$isions to be so
incidenta! to the purpose of the ct that the"
cou!d not stand on their own, and it did not
discuss in detai! the internationa! and
interpro$incia! Auestions.
<he Auestion posed[edit]
L
=s the proposed Canadian Securities ct within
the !eis!ati$e authorit" of the 3ar!iament of
Canada[]
M
ruments offered at the hearin[edit]
t issue was the Auestion of whether the
reu!ation of the securities industr" is a $a!id
e0ercise of the federa! trade and commerce
power.[7] =n that reard, aruments focused on
the app!icabi!it" of the fi$e criteria for such an
ana!"sis that were pre$ious!" identified in
Eenera! otors of Canada @td. $. Cit" ationa!
@easinF
the impuned !eis!ation must be part of a
reu!ator" schemeI
the scheme must be monitored b" the continuin
o$ersiht of a reu!ator" aenc"I
the !eis!ation must be concerned with trade as
a who!e rather than with a particu!ar industr"I
the !eis!ation shou!d be of a nature that
pro$inces oint!" or se$era!!" wou!d be
constitutiona!!" incapab!e of enactinI and
the fai!ure to inc!ude one or more pro$inces or
!oca!ities in a !eis!ati$e scheme wou!d
eopardiJe the successfu! operation of the
scheme in other parts of the countr".
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=f the trade and commerce power does not
app!", then securities reu!ation, bein in pith
and substance under the propert" and ci$i! rihts
power, fa!!s e0c!usi$e!" within pro$incia!
urisdiction, as the doub!e aspect and
paramountc" doctrines wou!d not come into p!a".
#oth sides areed that the first two Eenera!
otors criteria were met, and subseAuent
aruments re$o!$ed around the other three.
umerous submissions were presented to the
Court on this Auestion.[8]
<here was enera! areement amon obser$ers
that the resu!tin decision wi!! ha$e an impact onCanadian federa!ism be"ond the immediate
Auestion of securities reu!ation.[9]
<rade as a who!e[edit]
Canada arued that securities !aw transcends a!!
industries, and thus shou!d be a $a!id e0ercise of
the trade and commerce power, in the same wa"
as for competition !aw. )n the other side, it was
arued that the securities industr" shou!d be
$iewed in the same manner as the insurance
industr", which since CitiJen%s =nsurance Co. $.
3arsons has been he!d to fa!! under pro$incia!
urisdiction.
bi!it" of the pro$inces to reu!ate oint!" or
se$era!!"[edit]
Canada noted that, whi!e the pro$incia!
securities reu!ators efforts to operate a
passport s"stem ha$e met with some success,there are sti!! some sinificant constitutiona!
!imitations on their abi!it" to reu!ate the
securities industr" in the modern aeF
the pro$inces cannot app!" their reu!ations
e0tra*pro$incia!!"I
the securities industr" has become primari!"
internationa! in scopeI
pro$inces cannot reu!ate federa!!" incorporated
companiesI and
pro$inces !ac& the abi!it" to inc!ude crimina!sanctions with their reu!ations
!berta, amon others, arued that there were
no f!aws in the present passport s"stem that
cou!d not be fi0ed, and that the proposed ct
contained nothin that cou!d not be found in
current pro$incia! !eis!ation.
DeopardiJin the successfu! operation of the
scheme[edit]
s the proposed ct contains an opt*in c!ause
5pro$idin that it wou!d on!" app!" in pro$inces
that choose to participate6, it was arued that
this shows that unanimous pro$incia!
in$o!$ement is not necessar" and that therefore
this shou!d be considered an area that the
pro$inces are more than capab!e of reu!atin
without the in$o!$ement of the edera!
Eo$ernment. Canada responded that this
represented an e0amp!e of the current mode! of
cooperati$e federa!ism that had a!read" beenemp!o"ed in aricu!tura! products mar&etin, and
which was appro$ed b" the Court in Reference
re ricu!tura! 3roducts ar&etin ct.
)pinion of the Supreme Court of Canada[edit]
<he Court he!d that, as present!" drafted, the
proposed ct is not $a!id under the enera!
branch of the federa! power to reu!ate trade
and commerce.[1;][11] =t is main!" focused on
the da"-to-da" reu!ation of a!! aspects of
contracts for securities within the pro$inces,
inc!udin a!! aspects of pub!ic protection and
professiona! competences. <hese matters
remain essentia!!" pro$incia! concerns fa!!in
within propert" and ci$i! rihts in the pro$inces
and are not re!ated to trade as a who!e.
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L
[122] ... CanadaNs prob!em is that the proposed
ct ref!ects an attempt that oes we!! be"ond
these matters of undoubted nationa! interest andconcern and reaches down into the detai!ed
reu!ation of a!! aspects of securities. =n this
respect, the proposed ct is un!i&e federa!
competition !eis!ation, which has been he!d to
fa!! under s. 91526 of the Constitution ct, 187.
=t wou!d reu!ate a!! aspects of contracts for
securities within the pro$inces, inc!udin a!!
aspects of pub!ic protection and professiona!
competence within the pro$inces. Competition
!aw, b" contrast, reu!ates on!" anti*competiti$e
contracts and conduct B a particu!ar aspect of
economic acti$it" that fa!!s sAuare!" within thefedera! domain. =n short, the proposed federa!
ct o$erreaches the !eis!ati$e interest of the
federa! o$ernment.
M
Specific aspects of the ct aimed at addressin
matters of enuine nationa! importance and
scope oin to trade as a who!e in a wa" that is
distinct from pro$incia! concerns, inc!udinmanaement of s"stemic ris& and nationa! data
co!!ection, appear to be re!ated to the enera!
trade and commerce power. +ith respect to
these aspects of the ct, the pro$inces, actin
a!one or in concert, !ac& the constitutiona!
capacit" to sustain a $iab!e nationa! scheme.
L
[1;'] S"stemic ris&s ha$e been defined as Lris&sthat occasion a _domino effectN whereb" the ris&
of defau!t b" one mar&et participant wi!! impact
the abi!it" of others to fu!fi!! their !ea!
ob!iations, settin off a chain of neati$e
economic conseAuences that per$ade an entire
financia! s"stemM 5. D. <rebi!coc&, ationa!
Securities Reu!ator Report 52;1;6, at para. 26.
#" definition, such ris&s can be e$asi$e of
pro$incia! boundaries and usua! methods of
contro!. <he proposed !eis!ation is aimed in part
at respondin to s"stemic ris&s threatenin the
Canadian mar&et $iewed as a who!e. +ithout
attemptin an e0hausti$e enumeration, the
fo!!owin pro$isions of the proposed ct wou!d
appear to address or authoriJe the adoption of
reu!ations directed at s"stemic ris&F ss. 89 and
9; re!atin to deri$ati$es, s. 12516 on short*
se!!in, s. 7' on credit ratin, s. 2285(65c6
re!atin to urent reu!ations and ss. 1;9 and
22( on data co!!ection and sharin.
M
=n sum, the proposed ct o$erreaches enuine
nationa! concerns. +hi!e the economicimportance and per$asi$e character of the
securities mar&et ma", in princip!e, support
federa! inter$ention that is Aua!itati$e!" different
from what the pro$inces can do, the" do not
ustif" a who!esa!e ta&eo$er of the reu!ation of
the securities industr" which is the u!timate
conseAuence of the proposed federa! !eis!ation.
cooperati$e approach that permits a scheme
reconiJin the essentia!!" pro$incia! nature of
securities reu!ation whi!e a!!owin 3ar!iament to
dea! with enuine!" nationa! concerns remains
a$ai!ab!e and is supported b" Canadian
constitutiona! princip!es and b" the practice
adopted b" the federa! and pro$incia!
o$ernments in other fie!ds of acti$ities.
L
[128] <o summariJe, we accept that the
economic importance and per$asi$e character of
the securities mar&et ma", in princip!e, support
federa! inter$ention that is Aua!itati$e!" differentfrom what the pro$inces can do. Howe$er, as
important as the preser$ation of capita! mar&ets
and the maintenance of CanadaNs financia!
stabi!it" are, the" do not ustif" a who!esa!e
ta&eo$er of the reu!ation of the securities
industr" which is the u!timate conseAuence of
the proposed federa! !eis!ation. <he need to
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pre$ent and respond to s"stemic ris& ma"
support federa! !eis!ation pertainin to the
nationa! prob!em raised b" this phenomenon,
but it does not a!ter the basic nature of securities
reu!ation which, as shown, remains primari!"
focused on !oca! concerns of protectin
in$estors and ensurin the fairness of the
mar&ets throuh reu!ation of participants.
Uiewin the ct as a who!e, as we must, these
!oca! concerns remain the main thrust of the
!eis!ation B its pith and substance.
[129] <his is not a case of a $a!id federa!
scheme that incidenta!!" intrudes on pro$incia!
powers. =t is not the incidenta! effects of the
scheme that are constitutiona!!" suspectI it is
rather the main thrust of the !eis!ation that oesbe"ond the federa! power. <he federa!
o$ernment proper!" did not in$o&e the anci!!ar"
powers doctrine. <o app!" that doctrine, the
proposed statute considered as a who!e must be
$a!id B which it is not. +e further note that we
ha$e not been as&ed for our opinion on the
e0tent of 3ar!iamentNs !eis!ati$e authorit" o$er
securities reu!ation under other heads of
federa! power or indeed the interpro$incia! or
internationa! trade branch of s. 91526.
[1';] +hi!e the proposed ct must be found
u!tra $ires 3ar!iamentNs enera! trade and
commerce power, a cooperati$e approach that
permits a scheme that reconiJes the essentia!!"
pro$incia! nature of securities reu!ation whi!e
a!!owin 3ar!iament to dea! with enuine!"
nationa! concerns remains a$ai!ab!e.
[1'1] <he $arious proposa!s ad$anced o$er the"ears to de$e!op a new mode! for reu!atin
securities in Canada suest that this matter
possesses both centra! and !oca! aspects. <he
same insiht can be !eaned from the
e0perience of other federations, e$en if each
countr" has its own constitutiona! histor" and
imperati$es. <he common round that emeres
is that each !e$e! of o$ernment has urisdiction
o$er some aspects of the reu!ation of securities
and each can wor& in co!!aboration with the
other to carr" out its responsibi!ities.
[1'2] =t is not for the Court to suest to the
o$ernments of Canada and the pro$inces the
wa" forward b", in effect, conferrin in ad$ance
an opinion on the constitutiona!it" on this or that
a!ternati$e scheme. Yet we ma" appropriate!"
note the rowin practice of reso!$in the
comp!e0 o$ernance prob!ems that arise in
federations, not b" the bare !oic of eitherTor, but
b" see&in cooperati$e so!utions that meet the
needs of the countr" as a who!e as we!! as its
constituent parts.
[1''] Such an approach is supported b" the
Canadian constitutiona! princip!es and b" the
practice adopted b" the federa! and pro$incia!
o$ernments in other fie!ds of acti$ities. <he
bac&bone of these schemes is the respect that
each !e$e! of o$ernment has for each otherNs
own sphere of urisdiction. Cooperation is the
animatin force. <he federa!ism princip!e upon
which CanadaNs constitutiona! framewor& rests
demands nothin !ess.
M
ddressin the nature of this Auestion within the
conte0t of Canadian federa!ism, the Court notedF
L
[7] =t is a fundamenta! princip!e of federa!ism thatboth federa! and pro$incia! powers must be
respected, and one power ma" not be used in a
manner that effecti$e!" e$iscerates another.
Rather, federa!ism demands that a ba!ance be
struc&, a ba!ance that a!!ows both the federa!
3ar!iament and the pro$incia! !eis!atures to act
effecti$e!" in their respecti$e spheres. cceptin
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CanadaNs interpretation of the enera! trade and
commerce power wou!d disrupt rather than
maintain that ba!ance. 3ar!iament cannot
reu!ate the who!e of the securities s"stem
simp!" because aspects of it ha$e a nationa!
dimension.
[8] +e therefore answer the reference Auestion
in the neati$e.
[9] =t is open to the federa! o$ernment and the
pro$inces to e0ercise their respecti$e powers
o$er securities harmonious!", in the spirit of
cooperati$e federa!ism. <he e0perience of other
federations in the fie!d of securities reu!ation,whi!e a function of their own constitutiona!
reAuirements, suests that a cooperati$e
approach miht usefu!!" be e0p!ored, shou!d our
!eis!ators so choose, to ensure that each !e$e!
of o$ernment proper!" dischares its
responsibi!it" to the pub!ic in a coordinated
fashion.
[1;] t this uncture, it is important to stress that
this ad$isor" opinion does not address theAuestion of what constitutes the optima! mode!
for reu!atin the securities mar&et. +hi!e the
parties presented e$idence and aruments on
the re!ati$e merits of federa! and pro$incia!
reu!ation of securities, the po!ic" Auestion of
whether a sin!e nationa! securities scheme is
preferab!e to mu!tip!e pro$incia! reimes is not
one for the courts to decide. ccordin!", our
answer to the reference Auestion is dictated
so!e!" b" the te0t of the Constitution,
fundamenta! constitutiona! princip!es and the
re!e$ant case !aw.
M
Sinificance[edit]
<he immediate impact of the decisionF
<he rea! Auestion at hand was about the nature
of Canadian federa!ism in dea!in with a matter
that does not fa!! sAuare!" within either federa! or
pro$incia! urisdiction.[12]
<he trade and commerce power, as oriina!!"
concei$ed in 3arsons and c!arified in Eenera!
otors, is sti!! ood constitutiona! !aw that does
not need to be re$isited.
<he propert" and ci$i! rihts power is adeAuate
for dea!in with the da"*to*da" aspects of
securities reu!ation, as the" do not possess a
nationa! dimension.[1']
Certain aspects of the proposed ct wou!d be
$a!id, but on!" those with a nationa! dimension,internationa! and interpro$incia! e!ements, or that
are re!ated to the crimina! !aw power.
<he edera! Eo$ernment has confirmed that it
wi!! not proceed with the proposed ct. <here is
current!" e0tensi$e discussion as to the best
manner for an" reform to proceed.[1(][1-][1]
[17]
Certain obser$ers aree that a nationa!
reu!ator" authorit" with a more focused brief is
sti!! possib!e under other heads of federa! power,
[18] as is the option of institutin a cooperati$e
framewor& with the pro$inces.[19] <here is
debate as to the !i&e!ihood of the pro$inces%
cooperation.[2;][21] =n Danuar" 2;12, inister of
inance Dim !ahert" stated that wor& is sti!!
continuin with the pro$inces to create a
nationa! reu!ator that wou!d function within the
bounds that the Court dec!ared was within
federa! urisdiction.[22]
<here is a!so concern that, $iewed on the
enera! princip!es of the opinion with respect to
the boundar" between federa! urisdiction and
the pro$incia! propert" and ci$i! rihts power, the
fo!!owin recent!" enacted federa! statutes ma"
a!so be on constitutiona!!" sha&" roundF[2']
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3ersona! =nformation 3rotection and /!ectronic
Gocuments ct, and
ihtin =nternet and +ire!ess Spam ct, as we!!
as
amendments adopted in 2;12 to insert diita!
rihts manaement pro$isions into the Cop"riht
ct
Reference re nti*=nf!ation ct, [197] 2 S.C.R.
'7' was a !andmar& reference Auestion opinion
of the Supreme Court of Canada on the
constitutiona!it" of the nti*=nf!ation ct. =n what
has become amon the most sinificantfedera!ism cases of the supreme court, the ct
was he!d to be within the power of the federa!
o$ernment.
<he nti*=nf!ation ct was passed in 197-, on
recommendation of the #an& of Canada, to
contro! the rowin inf!ation of the past se$era!
"ears. Gue to rowin unease with the ct, the
federa! o$ernment put two Auestions to the
Supreme Court on the $a!idit" of the ct. <hemaor Auestion bein whether the ct was u!tra
$ires of the federa! o$ernment.
irst, the Court noted that the subect*matter of
the ct bein inf!ation made it impossib!e to
assin to one of the enumerated powers in the
Constitution ct, 187. ConseAuent!", the ct
wou!d be ab!e to be uphe!d on!" under the
peace, order and ood o$ernment power under
the Constitution which a!!owed the federa!
o$ernment to !eis!ate in matters re!ated to
emerencies or matters of nationa! concern. <he
Court !oo&ed at both options and found that the
!aw cou!d be sa$ed under the emerenc" power
of the peace, order and ood o$ernment
power.
ftermath[edit]
=n 1997, the Supreme Court found in the
3ro$incia! Dudes Reference that independent
commissions shou!d recommend the sa!aries of
udes. =f o$ernments reect therecommendations, the Supreme Court said
courts shou!d ana!"Je these reections in the
same wa" it ana!"Jed the nti*=nf!ation ct in this
case. =n 3ro$incia! Court Dudes% ssn. of ew
#runswic& $. ew #runswic& 5inister of Dustice6
52;;-6, the Supreme Court c!arified that that did
not mean an economic emerenc" was needed
to ustif" not fo!!owin recommendations. =t
mere!" referred to a re$iewin method to
determine whether the reection was rationa!.
Reference re irearms ct[1] is a !eadin
constitutiona! decision of the Supreme Court of
Canada on the di$ision of powers reardin
firearms !eis!ation and the Canadian irearms
Reistr". unanimous Court he!d that the
federa! irearms ct was constitutiona!!" $a!id
under the federa! crimina! !aw power.
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Contents [hide]
1 #ac&round
2 )pinion of the Court
' See a!so
( References
- /0terna! !in&s
#ac&round[edit]
<he o$ernment of Canada amended the
Crimina! Code of Canada in 199- to inc!ude the
contro$ersia! irearms ct, which reAuired un
owners to ha$e them reistered and to obtain!icences for them.
<he o$ernment of !berta submitted a
reference Auestion to the !berta Court of
ppea! to determine whether the ct was in
re!ation to matters under the urisdiction of the
federa! o$ernment. <he o$ernment of !berta
arued that the !aw was in re!ation to persona!
propert" and thus was a matter in the urisdiction
of the pro$ince. <he federa! o$ernment,howe$er, arued that the !aw was in the rea!m of
crimina! !aw, which is under federa! urisdiction.
)pinion of the Court[edit]
<he unanimous Court he!d that the pith and
substance of the ct was in re!ation to pub!ic
safet" which was a matter within the crimina!
!aw power of the federa! o$ernment. <he Court
cited the ararine Reference for the
reAuirements of crimina! !aw and noted the
daner of firearms, e$en if in some cases the"
cou!d be used beneficia!!". =ndeed, the
reu!ations were uded to promote responsib!e
firearm ownership, and the Court went on to
arue that there wou!d be a mora! daner if
firearms are used irresponsib!" 5mora!it" is an
e!ement in crimina! !aw, as estab!ished in the
ararine Reference6, a!thouh the Court said
that it was not ust a matter of mora!it" that a$e
3ar!iament the authorit" to pass this !eis!ation.
<he Court a!so noted that firearms ha$e beensubect to federa! reu!ation for "ears and that
the o$ernment of !berta cou!d not reasonab!"
cha!!ene man" of the ear!ier !aws.
ina!!", the Court reected a!! aruments that the
!aw was too e0pensi$e or disad$antaeous to
rura! reions, as these were matters for
3ar!iament to consider rather than !ea! issues
!iab!e to udicia! re$iew.
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Reference re ssisted Human Reproduction ct[1] is an appea! from the Quebec Court of
ppea! to the Supreme Court of Canada on a
reference Auestion posed as to the constitutiona!
$a!idit" of the ssisted Human Reproduction
ct[2] that had been passed b" the 3ar!iament
of Canada.
Contents [hide]
1 =nitia! reference
2 ppea! to the Supreme Court
2.1 <he c@ach!in opinion
2.2 <he @e#e!TGeschamps opinion
2.' <he Cromwe!! opinion
' References
=nitia! reference[edit]
<he Court of ppea! was as&ed b" theEo$ernment of Quebec to answer the fo!!owin
AuestionF
L
re sections 8 to 19, (; to -', ;, 1 and 8 of
the ssisted Human Reproduction ct, S.C.
2;;(, c.2, u!tra $ires the 3ar!iament of Canada
in who!e or in part under the Constitution ct,
187
M
<he Court ru!ed in the affirmati$e in a!! respects
of the Auestion.
ppea! to the Supreme Court[edit]
<he appea! was a!!owed in part, with the Courtrenderin a rare (*(*1 mi0ed decision. <he
ustices% opinions were as fo!!owsF
W constitutiona!!" $a!id
W constitutiona! to the e0tent that the" re!ate
to constitutiona!!" $a!id pro$isions
W constitutiona!!" in$a!id
Sections c@ach!in C.D. and #innie, ishand Charron DD.@e#e!, Geschamps, be!!a and
Rothstein DD. Cromwe!! D. /ffecti$e ru!in
of the Court
8*19 ss. 8, 9, 12 and 19
ss. 1;*11 and 1'*18
(;*-' ss. (;516, 56 and 576I
(1*('I ((516 and 5(6I (-*-'
ss. (;526*5-6I ((526*5'6
;
1
8
<he c@ach!in opinion[edit]
<he ct is essentia!!" a series of prohibitions,
fo!!owed b" a set of subsidiar" pro$isions for
their administration. +hi!e the ct wi!! ha$e
beneficia! effects and whi!e some of its effects
ma" impact on pro$incia! matters, neither its
dominant purpose nor its dominant effect is to
set up a reime that reu!ates and promotes the
benefits of artificia! reproduction. Here, the
matter of the statutor" scheme, $iewed as a
who!e, is a $a!id e0ercise of the federa! power
o$er crimina! !aw. <he dominant purpose and
effect of the !eis!ati$e scheme is to prohibit
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practices that wou!d undercut mora! $a!ues,
produce pub!ic hea!th e$i!s, and threaten the
securit" of donors, donees, and persons
concei$ed b" assisted reproduction.
<he @e#e!TGeschamps opinion[edit]
<he impuned pro$isions represent an o$erf!ow
of the e0ercise of the federa! crimina! !aw power.
<heir pith and substance is connected with the
pro$incesN e0c!usi$e urisdiction o$er hospita!s,
propert" and ci$i! rihts, and matters of a mere!"
!oca! nature. <he impuned pro$isions affect
ru!es with respect to the manaement of
hospita!s, since 3ar!iament has pro$ided that the
ct app!ies to a!! premises in which contro!!ed
acti$ities are underta&en. urthermore, the factthat se$era! of the impuned pro$isions concern
subects that are a!read" o$erned b" the Ci$i!
Code of Quebec and other Quebec !eis!ation is
an important indication that in pith and
substance, the pro$isions !ie at the $er" core of
the pro$incesN urisdiction o$er ci$i! rihts and
!oca! matters.
<he Cromwe!! opinion[edit]
<he matter of the impuned pro$isions is
reu!ation of $irtua!!" e$er" aspect of research
and c!inica! practice in re!ation to assisted
human reproduction. <he matter of the
cha!!ened pro$isions is best c!assified as
re!atin to the estab!ishment, maintenance and
manaement of hospita!s, propert" and ci$i!
rihts in the pro$ince and matters of a mere!"
!oca! or pri$ate nature in the pro$ince. Howe$er,
ss. 8, 9 and 12 in purpose and effect prohibit
neati$e practices associated with assisted
reproduction and fa!! within the traditiona! ambit
of the federa! crimina! !aw power. Simi!ar!", ss.
(;516, 56 and 576, (1 to (', and ((516 and 5(6
set up the mechanisms to imp!ement s. 12 and,
to the e0tent that the" re!ate to pro$isions of the
ct which are constitutiona!, were proper!"
enacted b" 3ar!iament. Sections (- to -', to the
e0tent that the" dea! with inspection and
enforcement in re!ation to constitutiona!!" $a!id
pro$isions of the ct, are a!so proper!" enactedunder the crimina! !aw power. <he same is true
for ss. ; and 1, which create offences. Section
8 is a!so constitutiona!, a!thouh its operation
wi!! be !imited to constitutiona! sections of the
ct. Ei$en that the other pro$isions estab!ishin
the ssisted Human Reproduction enc" of
Canada are not contested, there is no
constitutiona! obection to s. 19.