CONSTITUTIONAL CANIntroduction to the ConstitutionWhat is a Constitution?

S.52 – Constitutional Supremacy Quasi-Constitutional Statutes – SO important that they are “constitution lite”- basically a part

of the constitution Unwritten Constitutional Principles – not actually written but form part of the underlying

constitution (ie our constitution is in principle similar to UK constitution, which does not exist (isn’t written)) – eg how to become prime minister is not actually in constitution

Constitutional Convention – a practice that has become so entrenched that it becomes, in effect, a rule of the constitution even though it is not written down anywhere

Courts cannot enforce conventions, but can recognize themConstitutional Principles

3 branches of government: Constitutional Ruleso Legislative – Power to make law (See sections 17-57 Constitution Act, 1867)o Executive – Power to implement law (see sections 9-16 Constitution Act, 1867)o Judicial – Power to interpret law (see sections 96-101 Constitution Act, 1867)

Reference re Succession of Quebeco Four underlying principles:

Federalism Democracy Constitutionalism and the Rule of Law Respect for minorities

o Unwritten constitutional principles help fill in gaps – the constitution uses language that does not cover every possible scenario (vague language or left for future generations to decide)

o Controversies about unwritten constitutional principles They are open to interpretation – judicial power – concern about judges

having this much power Takes away power from elected representatives (written law – legislation)

Constitutional Interpretation BC v Imperial Tobacco

o You have to look at actual text, not unwritten principleso “The rule of law is not an invitation to trivialize or supplant the Constitution’s

written terms” Edwards v Canada (“Persons Case”)

o SCC said women were not considered “persons” by looking at interpretation at the time

o Privy Council: Living tree doctrine – if they actually meant “only men” would have said

“only men” – they meant “qualified persons” which at the time was men, but can evolve

Constitutional Architecture Dead tree doctrine

o Not up to judges to change constitution, that is democratically elected officials – judges only interpret

o Gives legitimacy to judges decisions (reliability, stability)o If you want change, then actually change it

Living Tree doctrineo Practical difficulty of dead tree – historians can’t agree what framers thought, so

how can we?o Amending constitution (especially in Canada) almost impossible

1

o Where does original intent come from? – maybe framers didn’t agree on everything? No real way of knowing – what about people of Canada’s intent? What about the provincial legislatures intent?

o Allows more flexibility – legitimacy because otherwise “stuck” with outdated views (eg women aren’t persons) – document can maintain its legitimacy through this updating

o Maybe framers intended judges to use living tree model Constitution Act, 1867

o Ideas in the Act: Constitutional Continuity (Canada is an evolutionary Constitution system –

connection to UK) S.9 “The Executive Government and Authority of and over Canada

is hereby declared to continue and be vested in the Queen.” S.128 – every member of senate and house of commons take oath

of allegiance to the queen S.84 – constitution didn’t extinguish existing law

Federalism S.91 and 92 – division of powers S. 22 – senators are divided regionally

Democracy S.37 – house of commons S.53 – taxes – comes from elected group (House of Commons)

rather than unelected group (senate) S.50 – parliaments can only rule for 5 years at the most

Rights S.93 – education rights S.133 – language rights In Constitution – group rights, not individual rights (like in

Charter) – ie religious or linguist groupsFederalismPrivy Council

Federalism Theoryo What are its advantages?

Provides a sense of national unity But still allows different regions some local powers Decentralizing some powers can allow smaller locals to protect minority

rights (ie francophones are minority in Canada, but majority in Quebec) More efficient to give certain powers to provincial governments, since they

are the ones directly affected Subsidiary – as a principal of governing, you want to make laws at the most

local level possibleo Disadvantages

Hard to draw bounds for each level (uncertain which government governs what) – spend lots of time fighting over who has power over what

Having different laws in different provinces can have problems across country (inefficient)

Inhibit national identity – eg power of separatist cause comes from having a provincial government with power

Different provinces are different – can’t treat them the sameo Efficiency, diversity, democracy

S. 91 and 92o Where do they overlap?

Marriage Taxation

2

Criminal law and administration of justice Property (trade and commerce v civil and property rights)

Citizens Insurance v Parsonso Coordinate federalism: both provincial and federal governments are equally

sovereign in their respective spheres - SCCo Privy Council interpretation

Overlap of powers Read ss.91 and 92 together – mutual modification Interpretations of s. 92(13)

Role of Quebec civil lawo Quebec has a different legal system governing property

and civil rights – private legal rights ie. enter into a contract, torts, property

Property and Civil rights Interpretation of s. 91(2)

Gives federal government the exclusive power to regulate trade and commerce

Insurance company sells to make a profit and is by nature a commercial activity – commerce and the selling of the insurance is trade

But contracts are not a part of trade and commerce, it is a civil right There are also specific examples of trade and commerce in s. 91 –

why would they put those if subsection 2 covered it all? So read it more narrowly

Also have to read s.92 specifically subsection 13 – civil rights – if provinces have these, they can’t be trade and commerce

Interprovincial trade and general regulation of trade in all the dominion

o Regulating contracts – relating civil rights – matter of provincial lawo Ratio:

Establishes two branches of the federal power over trade and commerce (91(2) read narrowly)

Any trade taking place intra-provincially or internationally General regulation of trade affecting the whole dominion

Otherwise, any business within province is provincial power under 92(13) – read broadly

Developing Constitutional State Russell v The Queen

o Court said it wasn’t local, since the right to vote was given to EVERY area in Canada, not any specific ones – therefore national matter

o Falls under safety and morality, which is in s.91 (eg POGG or criminal law power)o Why not property and civil rights? (92(13))

Alcohol is property, and the right to drink is a civil right, so why not? Not about property, about safety and public good – whats the law in

relation to? (what is the pith and substance?) “Incidental interference does not alter the character of the law” – property

is not in relation to this law – dealing with alcohol as a social menace, not property

“The true nature and character of legislation … must always be determined”o Cannot use POGG power for permanent issues (must be temporary, and emergency)o Ratio

Ratio: There are two important ratios to note about this case.  They are: Canada Temperance Act Does Not Violate s. 92: The Canada Temperance

Act does not violate any of the sub-sections under s. 92.  Specifically:

3

2) s. 92(13): The Canada Temperance Act does not violate this section because Parliament is allowed to enact laws for the good of the country under POGG even if it affects Property and Civil Rights (problematic aspect of decision because POGG is a residual power rather than an enumerated power).

3) s. 92(16): The Canada Temperance Act does not violate this section because the problem is not a matter within local jurisdiction (i.e. the pith and substance of the law is not aimed at a specific province) because it is an uniform piece of legislation aimed at remedying an evil in the Dominion.

2) Parliament Can Use POGG To Limit Provincial Rights: Under this decision, the JCPC ruled that Parliament could use POGG to "trump" provincial powers if there is a need for uniform legislation to address a nationally pressing concern (problematic decision because it was a broad reading of POGG that expanded it beyond what was originally intended B suppose to be limited if it comes within a provincially delegated power).  

Hodge v The Queeno The Double Aspect Doctrine: “subjects which in one aspect and for one purpose fall

within s. 92, may in another aspect and for another purpose fall within s. 91.” (p.108)

o Ratio (general): Determining whether a power falls under federal (s.91) or provincial (s.92) competence requires an assessment of the class of subject it entails. Subjects which in one aspect fall within s. 92 may in another aspect fall under s.91 without being ultra vires or infringing on another level of government's power. Provincial legislatures are not merely delegates or subordinates of Imperial or Dominion Parliament, but enjoy plenitude of power within limits of their defined subject matter. Assuming that a provincial legislature possesses certain powers, it may be possible to assume further that it can also delegate those powers.

Snidero POGG power can only be used in these highly exceptional, great emergency,

extraordinary peril – eg war, famine, pestulanceo Created emergency theory of POGGo Said Russell was an exceptional case – there was a threat – narrowed Russell to only

emergency power of POGG Board of Commerce

o Pogg available “to meet special conditions in wartime” on a “temporary” basis, but not under “normal circumstances”

Reference re Aeronauticso “Useful as decided cases are, it is always advisable to get back to the words of the

Act itself”o Finds federal jurisdiction under s.132 (power to perform treaty obligations) and

POGG Reference re Radio

o “Being…not mentioned explicitly in either s.91 or 92, such legislation falls within the general words at the opening of s. 91” – Residuary powers

AG Canada v AG Ontario (Labour Conventions) – New Deal Caseo Government knew due to Parson they would have trouble using trade and

commerce, and POGG power due to Snider so used s.132 Treaty obligations: The parliament and government of Canada shall have all

powers necessary or proper for performing the Obligations of Canada or of any province thereof, as part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries

o Executive government can make treaties or go to war

4

o S.132 is not about power of Canada to enter treaties, it is about treaties to do with the British Empire

o Federal government does not have the authority to make treaties according to s.132, it is set out in ss.91 and 92, which means they can’t do it without approval of provinces

o If they took the Federal case, then anytime the Federal government wants jurisdiction they could override the provincial governments through treaties – cannot “clothe itself” with treaty making power to override provinces

o Couldn’t use POGG because they were permanent interventions, not temporary AG Canada v AG Ontario (Employment and Social Insurance Act) – New Deal

o Government used argument that they have the power to raise money under s.91(3) and therefore can also spend it however they want, including employment insurance

o Losto Regulating local trade, not interprovincial (Parsons)o If allowed, like international treaties, would get rid of integrity of division of powerso Spending Power says you can spend money outside your area of jurisdiction, but

you cannot legislate outside your area (cooperative federalism – Provinces design program, create legislation, federal government funds it)

Pith and Substance Features of Modern Federalism

o Concurrency and Overlap Growth of Government Gaps in Text: Environment, health, post-secondary education, consumer

protection, welfare state Maybe federalism should allow for overlapping jurisdictions?

o Executive Federalism If courts allow more leeway, then sorting out these divisions falls to the

government officialso Asymmetrical Federalism

Don’t treat all provinces equally – eg give Quebec and Alberta different international relationships based on culture and business markets

o Judicial Functionalism Idea that judges aren’t there to police the watertight compartments, but to

figure out what is the best way to make the federalism work R v Morgentaler (1993)

o “Courts apply considerations of policy along with legal principle; the task requires ‘a nice balance of legal skill, respect for established rules, and plain common sense’”

o Pith and Substance Test Purpose

Intrinsic (what the law says) Extrinsic

Practical and Legal Effects Legal Effect: The consequence the law says will happen if you do

something Practical Effect: What happens because of this law – how is this

going to play out in practice? Matter is determined by the law’s dominant purpose: incidental effects will

not disturb the constitutionality of an otherwise intra vires lawDouble Aspect/Ancillary

Colourabilityo “In some cases, the effects of the law may suggest a purpose other than that which is

stated in the law…In other words, a law may say that it intends to do one thing and

5

actually do something else. Where the effects of the law diverge substantially from the stated aim, it is sometimes said to be “colourable”” – Reference re Firearms Act

Multiple Access v McCutcheono Double aspect doctrine – sometimes things fall in both jurisdictionso The double aspect doctrine, as it is known, which applies in the course of a pith and

substance analysis, ensures that the policies of the elected legislators of both levels of government are respected…the double aspect doctrine recognizes that both parliament and the provincial legislatures can adopt valid legislation on a single subject depending on the perspective from which the legislation is considered, that is, depending on the various “aspects” of the “matter” in question – Canadian Western Bank

o Duplication is “the ultimate in harmony” – narrow version of conflict – if you can comply with both, then no conflict – no paramountcy

Ancillary Doctrine (Necessarily Incidental Doctrine)o Deals with the common scenario where you have a large, complicated legislative

schemeo What do you do if “one tentacle of the octopus” is in the other’s jurisdiction? Does

the whole act get declared unconstitutional?o Ancillary Doctrine says Maybe it’s ok if that “big octopus” has one arm in the

provincial side of the “tank” General Motors of Canada v City Leasing

o Ancillary Doctrine test 1. Does the provision intrude into the other government’s area of

constitutional jurisdiction? If yes, to what extent? – from “encroaches marginally” to “highly

instrusive” 2. Is the overall Act Constitutionally valid?

Do a pith and substance test of the entire act 3. If yes, then is the intrusive provision sufficiently integrated into the

legislative scheme? – from “functional relationship” (if it’s a marginal encroachment) to “intimate connection” or “necessarily incidental” (if it’s highly intrusive)

The more the intrusiveness of the “arm”, the higher the function we ask for – eg highly intrusive, must be absolutely necessary to achieve the goal of the act

o Dickson J – the dominant tide of federalism is not watertight compartments anymore, but overlap, as seen in the ancillary and double aspects doctrines

In this case, the encroachment is marginal – limited to the terms of the act – has been done before in other acts

Therefore, the court is only going to ask for the functional relationship Is it a rational, functional part of the act? YES Therefore saved the “arm of the octopus”

Ancillary doctrineo Sometimes one portion of a statute may reach into another jurisdictiono Does that arm reach into the other section?o How much does it reach over? Large or minor intrusion?o Is the overall act itself valid? (pith and substance analysis)o IF it is valid, then you can potentially save that armo If it’s a large intrusion, is it critical/necessarily incidental? If not, then could maybe

sever that sectionInterjurisdictional Immunity

A federal undertaking is a thing that emerges out of federal jurisdiction eg. Federal undertaking under s.91(5) –postal service – Canada Post; s.91(15)-banking – Banks

6

Provincial (or federal) legislation will be inapplicable to federal (or provincial) undertakings if that law “impairs” a “core competence” (or vital or essential feature) of the undertaking

Bell #2o IJI to apply where a provincial law “affects a vital or essential part” of federal

undertakings (or vice versa) – provincial law affected minimum wage, Bell Canada said it could not affect them because it was an essential part of the undertaking

Canadian Western Bank v Albertao From “affects” to “impairs” a “core competence” (or “vital or essential” feature) of an

undertaking falling in the other government’s jurisdictiono “in general” limit to decided cases – like aeronauticso Court says IJI is a doctrine of “limited application” – they don’t like it that much

Said it is unduly centralizing – less of a division of powers – takes power away from provinces to give to Federal

In theory it goes both ways, but in practice mostly protects federal undertakings

“The dominant tide” is about overlap between the jurisdiction of provincial and federal – IJI goes against that

Create a legal vacuum – no regulation at all (even if there is no federal law, provincial law can be taken out for federal undertakings)

Difficult definition of “core” features – hard to decide what is in the core and what is outside it

o IJI goes both ways Quebec v Canadian Owners and Pilots Association

o Court says law is intra vireso The law was about land use planning for agriculture – dominant purpose –

incidental effects don’t matter – no tentacle of the octopus is extending to federal jurisdiction

o Ok, it may be intra vires but doesn’t apply due to IJI (aeronautics is a federal jurisdiction)

o Does the provincial law impair a core feature of aeronautics?o Court says yes, because you can’t have an air strip if province says you can’t have it –

obviously impairs federal jurisdiction of approving and deciding where to have air strips

Federalism tool box: pith and substance, Ancillary doctrine, IJI, Paramountcyo Validity – has to be intra vireso Applicability- if it is valid, does it apply to this undertaking?o Operability – if it is valid and applies, is it operable? – is there a conflicting law?

Paramountcy Canadian Western Bank

o “According to the doctrine of federal paramountcy, when the operational effects of provincial legislation are incompatible with federal legislation, the federal legislation must prevail and the provincial legislation is rendered inoperative to the extent of the incompatibility”

o Feds always prevail if there is a conflict, even if provincial law is intra vireso If federal law is repealed, then the provincial law now fully covers that situation – no

longer inoperable Multiple Access

o We have to find the conflict – an overlap is not enough to allow for federal paramountcy

o Duplication is not conflict – it is the ultimate in harmonyo If you can comply with both provincial and federal laws - harmony o Creates the “impossibility of dual compliance” test – is there conflict?

Bank of Montreal v Hall

7

o Court adds wrinkle to paramountcy test – broadens definition of conflict to include “essence” of federal legislation – frustration of legislative purpose

If the provincial law is frustrating the purpose of the federal law, then they will be found in conflict and paramountcy will follow (federal trumps provincial)

o Federal purpose in this case was to allow banks to seize property easier – allows them to lend more since risk/cost is lower

o Saskatchewan’s legislation slows this process down – hence frustrating purpose of federal act

o Therefore paramountcy is called for – federal act prevailso Provincial legislation still valid for non-banks in the province - not struck down, still

intra vires for other matterso If federal act were to be struck down, then the provincial would take hold again

Rothmans, Benson & Hedges v Saskatchewano Paramountcy test:

Both laws valid? Pith and substance – double aspect doctrine Province is intra vires under 92(13) – civil and property rights Federal – trade and commerce

Is there inconsistency? Impossibility of dual compliance?

o Didn’t fail this test, can comply with both Provincial frustration of federal purpose?

o Federal and provincial acts both had same purpose – restrict the advertising of cigarettes to children – therefore doesn’t frustrate it – no conflict – therefore no paramountcy – therefore valid

Paramountcy test: o Are both laws valid?o Is there inconsistency between the two laws?

Impossibility of dual compliance? Is there a frustration of federal purpose? – even if both laws can work

together, if provincial frustrates purpose, can’t workPeace, Order and Good Government

Modern POGGo 3 branches

Gap branch Emergency branch National Concern

Pogg’s “gap” brancho Radio Reference

Radio “not mentioned explicitly in either s.91 or s. 92…falls within the general words at the opening of s.91

o Jones v AG New Brunswick Regulation of official languages “clearly beyond provincial reach” and

therefore falls within “the purely residual character of the legislative power of s.91”

Reference re Anti-Inflation Acto Emergency branch of POGGo Judicial notice: some things are so obvious that we don’t need experts, we can find

on our own that there is such a case – don’t have to prove thato Laskin used judicial notice to find that inflation was a serious concern at this timeo There was a rational basis for the Federal government to think there is an

emergency, it is only temporary, so legislation is upheld

8

o Even though legislation did not explicitly say it was emergency, can infer from circumstances and extrinsic evidence (takes ratio from Morgentaler, but in favour of the legislation this time)

R v Crown Zellerbacho Singleness, distinctiveness, and indivisibility of the issue that clearly distinguishes it

from matters of provincial concern needed for POGGo Combines Gap and National Concern Branches of POGG (p.326 #2)o Provincial inability test – is this a thing that the provinces will have trouble

legislating about because the issue is beyond their scopeo National Concern doctrine of POGG:

It is separate from the emergency power. It applies to new matters and to old ones that have grown to national

dimensions. For a matter to qualify it must have “a singleness, distinctness and

indivisibility that clearly distinguishes it from matters of provincial concern.”

It is relevant to consider what would happen to other provinces if one province failed to deal with the matter. (It’s not clear whether this is an element of its own, or a corollary of #3.)

POGG summed upo Emergency branch

Temporary in scope Flexible in nature: authority extends as far as is necessary given the

emergency Applicable in war Potentially available in social or economic emergencies – Re Anti-inflation

Reference Once emergency is done, no longer in power

o Gap Branch and National Concern Usually a permanent addition to s.91 Subjects must possess

Nationwide importance Singleness, distinctiveness and indivisibility – as determined by the

“provincial inability test”Economic Regulation

Carnation v Quebec Agricultural Marketing Boardo Court looked at the pith and substance – purpose of the legislation – distinguish it

from the affecto A role for provincial regulation

Extra-provincial “affects” vs legislation “in relation to” “It is not the possibility that these orders might ‘affect’ the appellant’s

interprovincial trade which should determine their viability, but, rather, whether they were made ‘in relation to’ the regulation of trade and commerce....”

o Not everything that happens in a province is necessarily provincial, but just because it has an impact on export trade, doesn’t mean it is not provincial

o “In the present case, the orders under question were not, in my opinion, directed at the regulation of interprovincial trade. They did not purport directly to control or to restrict such trade. There was no evidence that, in fact, they did control or restrict it. The most that can be said of them is that they had some effect upon the cost of doing business in Quebec of a company engaged in interprovincial trade, and that, by itself, is not sufficient to make them invalid” p.360

Incidental effects are different from ancillary doctrine – ancillary – actually goes over the jurisdiction line

9

AG Manitoba v Manitoba Egg and Poultry Association – Manitoba Egg Referenceo Distinguishing Carnation: the limits of provincial economic jurisdiction – the

regulation of interprovincial tradeo What matters is the pith and substance – what is the law in relation to? Is it

incidental to provincial trade, or was it made in relation to interprovincial tradeo Court says it was designed to limit the free flow of trade between provinceso Carnation did not have that purpose, just that affect – goes further than Carnation –

purpose is export – due to external factorso “affects” interprovincial trade vs “aims at” interprovincial tade

Re Agricultural Products Marketing Acto Production vs Marketing

SCC says that dealing with production of natural goods are provincial laws Different from the marketing of these goods to outside markets – going to

be federal if they are outside the province or countryo Affect vs Control

Doesn’t matter if it affects the interprovincial trade, only matters if it is trying to control the trade

What is the law’s purpose?o Encouraging co-operative federalism

Canadian Industrial Gas and Oil v Saskatchewano Martland J. found that the legislation was “directly aimed at the production of oil

destined for export and has the effect of regulating the export price…”o So why is it different from Carnation?o P.372-73o Focus on the purpose – pith and substance of the Quebec law was under provincial

market for provincial purposes – indirect impact on exporto Here the government does this knowing that it will affect export price – pith and

substance is about export, not intraprovincial trade Central Canada Potash v Saskatchewan

o Production vs Price Fixingo Says you can’t sell potash for below a certain priceo All the potash is being exportedo This legislation is about price fixing of a good going to international markets –

marketingo Does not have jurisdiction over thiso The prorationing scheme involved direct intervention in the export trade. It

therefore encroach on interprovincial/international trade and commerce See s.92A

o Gets added to constitution as part of the bargain in 1982o Doesn’t change the law – just says what the common law already decidedo 92A(2) – does change it – giving provincial jurisdiction over laws in relation to

export to other parts of Canada – would have changed the Canadian Industrial Gas and Oil – not Potash because that was international export – retained in Parliament by 92A(3)

Economic Regulation Summaryo Pith and substance will determine “true nature” of the legislationo Provincial: Local production and/or conservation (Carnation)o Federal: inter-provincial marketing, trade or export (Egg Reference, CIGOL, Potash)o Court favours large scale federal provincial agreements (Re Agricultural Products

Marketing Act)Trade and Commerce

Labatt Breweries v AG Canada

10

o The federal government cannot enact laws targeting a “single industry” under s.91(2)

o The “general” branch of the trade and commerce power could only be used to regulate a general aspect of the economy, not a particular industry

MacDonald v Vapour Canadao Laskin CJC set out three criteria for the general trade and commerce power:

1. The impugned legislation must be part of “a regulatory scheme.”2. The scheme must be monitored by “a federally-appointed agency.”3. The legislation must deal with trade as a whole rather than a particular industry.

General Motors of Canada v City National Leasingo Dickson CJC added two more criteria:

4. “The legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting.”5. “The failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country.”

o P.401 – top – this is not an exhaustive list – the presence or absence of any one factor is not determinative – gives flexibility – cases turn on their own sets of facts – don’t want to close off a case in the future – allows common law to develop

General trade and commerce – 5 factorso Presence of general regulatory schemeo Monitoring by the regulatory industryo Concerned with trade as a wholeo Incapable of provincial enactmento Failure to include one province would jeopardize the scheme

Criminal Law Power 91 (27)—federal gov has listed the power over the criminal law provinces have role too—not over creating substantive criminal law, but over creating

courts etc provincial courts deal with crimes 92 (15)—important—it says that the province can create offences, can imprison, give

penalties and fines – therefore provincial acts with offences are not always ultra vireso Provincial SUBJECT MATTER – so not general powero Offence is NOT a crime – it’s a consequence of breaking provincial law

Margarine Referenceo 3 P’s of Criminal Law

Prohibition Penalty Public Purpose (added in by Rand J in this case)

o Rand doesn’t think the 2 P’s are good enough—would allow fed gov to just legislate about everything by using the proper form – form trumps substance in this case

o Public Purpose: public peace, order, security, health, moralityo Purpose in this case was for economic reasons – not criminal law – attempting to

regulate property – ultra vires of federal government RJR MacDonald v Canada

o La Forest J: What is the potential third P? Look at Rand J’s list – Health is included – cigarettes can be legislated in relation to health

Government has made legislation about dangerous products such as drugs and tainted food – now exercising power in relation to cigarettes

As long as this is not a colourable attempt to regulate cigarette industry – pith and substance is it is about health – no ulterior motives – no invasion over provincial property

Not practical to ban cigarettes

11

Criminal law CAN have exemptions and regulatory provisions – helps define prohibited conduct

o La Forest J. (for the majority) found that the ban was criminal law, especially as it was directed against the public health hazard of smoking. It did not matter that the law was more regulatory than prohibitory.

R v Hydro-Quebeco La Forest J: Criminal law is plenary in nature (RJR Macdonald) – subject only to

colourability and the 3 Pso Purpose of criminal law is to protect our fundamental values – environmental

protection is one of these valueso Better to put environmental protection in criminal law rather than POGG – under

POGG handing over the entire protection to federal government – in criminal law, its more discrete – not environmental regulation but prohibiting certain modes of conduct – more narrow field – cannot regulate as they see fit

o La Forest J., writing for a narrow 5-4 majority, added environmental protection to Rand J.’s list of public purposes.

o Dissent: Environmental protection COULD be the third P of criminal law, but this particular act does not meet the appropriate standard

Definition of toxic is not a clear set of prohibitions (first P) – prohibition prohibits clearly and absolutely – in this case it is a guideline for prohibition and then the executive gets discretion to decide what is prohibited

Also depending on the list the substance it is on, it could or could not be prohibited – looks too much like regulation

Regulation vs Prohibitiono What qualities distinguish regulation from prohibition?o Trans Fats – Prohibition

Use of Trans Fats in food is prohibitedo Trans Fats – Regulation

No food products in Canada shall contain dangerous amounts of Trans fats This is regulation because we don’t know what “dangerous” means

– uncertainty, discretion, not a clear prohibition Reference re Firearms Act

o the Act contained a prohibition and a penalty, for a criminal purpose. The complex, regulatory nature of the Act did not preclude it from being considered criminal law. The court explicitly responded to the dissent’s concerns in the Hydro-Québec case. The court found that the civil consequences of the Firearms Act were necessarily incidental.

o Court says no, its not regulation of property, still criminal law – three Ps – can’t operate gun without licence (prohibition), penalty for operating gun without licence, and public purpose – safety of public

o Dominant purpose of legislation? – not regulatory, related to health, safety, well being

o May be regulatory aspects, but still criminal lawo Has an incidental effect on property, but its not the dominant purpose of the law –

the pith and substance is about public safetyo Effectiveness of law does not matter in determining its constitutionality

Morality and Public Order Reference re Assisted Reproduction Act

o Order of the pith and substance analysis McClachlin says look at whole act first and then provisions – if the whole act

is intra vires, can potentially save ultra vires provisions through ancillary doctrine or sever them from the intra vires act

12

McLachlin: “the first question is whether the matter of the statutory scheme, viewed as a whole, is a valid exercise of federal power. The second question is whether its individual provisions are also valid” (para 18)

o Lots of regulation, but not an issue – “Parliament may validly employ regulations as part of a criminal law provided they target a legitimate criminal law purpose” (30)

o LeBel and Deschamps “Care must be taken to maintain the constitutional balance of powers at all

stages of the constitutional analysis” (196) “It is not enough to identify a public purpose…Where its action is grounded

in the criminal law, the public purpose must involve suppressing an evil or safeguarding a threatened interest” (232)

Re Nova Scotia Board of Censors v McNeilo The power of description: Contrast the opening of Laskin’s and Ritchie’s judgments.

How does the choice of words affect constitutional argument? Laskin: Public morals (criminal law purpose), obscene (prohibited by

criminal law), offensive Ritchie: Supervision and control (regulation), property, matters of local

nature, business (Parsons)o Why does the majority hold that film censorship falls within provincial jurisdiction?

Preventative rather than penal (falls within provincial – criminal law is punishment)

Morality is not exclusive to criminal law (92(16) – local standards are different across country)

o Ritchie J, writing for the majority, emphasized that the Board of Censors was regulating “property and civil rights.” He also said that in “a country as vast and diverse as Canada,” laws dealing with morality had to be “of a local and private nature.”

Dupondo Montréal bans street demonstrations without a permito Local, preventative, double aspect – provinces can be concerned about criminal law

as long as they are regulating from a provincial head of power Westendorp

o Calgary bans prostitution on streetso Court strikes down lawo Colourable law – not about regulating streets – prohibiting specific act of

prostitutiono The context – prostitution is classically regulated in the Criminal Code – hence

colourabilityo Laskin: If you were worried about traffic on streets, it would be general prohibition,

not focusing solely on prostitutiono The SCC unanimously found that the by-law dealt with criminal law, since it only

regulated being on the street for prostitution, not the mere fact of being on the street.

Chaterjee v Ontarioo Court talks about double aspect doctrine – property aspect of crime – not a

punishment - $29000 was not his in the first place (unlawfully gained, so does not belong to him)

o Provinces have jurisdiction to suppress crimeo What matters is the dominant purpose of the law (pith and substance) – this is

about property, not punishing criminal conductFederalism Review

Federalism Concepts o The heads of federal and provincial jurisdiction (POGG, Criminal law, Trade and

Commerce, Civil and Property rights)

13

o Interpretive doctrines Pith and substance Colourability Double Aspect Interjurisdictional Immunity Paramountcy Ancillary Doctrine Validity, Applicability, Operability

o Theories of Federalism Autonomous Federalism

Both levels of government are supreme in there spheres, one not dominant over the other

Decentralized v centralized federalism Watertight compartments vs concurrency and overlap Balanced federalism (eg Securities act case) Co-operative federalism and judicial restraint Spending Power

Federal government can’t legislate in provincial jurisdiction, but sometimes SPEND in these areas (eg education, hospitals) with aid of province

o Theories of Constitution Living tree doctrine Constitutional Conventions Legitimacy and judicial review

Reference re Securities Acto Government of Canada says this is a necessary way of responding to economic crisiso Best argument why its ultra vires: Every province is already regulating securities –

therefore massive re-writing of powers if feds can now take over regulationo Federal government: Securities WAS provincial, now federal aspect – double aspect

(not taking away provincial power) – trying to legislate and regulate from the federal aspect (thinking of Multiple Access)

o Para 9 – cooperative federalism (eg Agricultural Marketing cases)o Para 10 – judicial restraint – policy is not something the courts are concerned with –

don’t care if its good policy or noto Para 90 – We don’t care about the policy behind this, only care about whether it is

constitutionally permissible (can’t say this is a bad law)o Para 29 – pith and substance – looking for dominant purpose (intrinsic evidence)o Para 31 – provinces can opt in if they choose (cooperative federalism) – weakness of

argument – if provinces can opt in and out, then the need for national regulation is obviously not that important

o Para 34 – colourability – “thinly disguised attempt to regulate civil and property rights”

o Para 46 – Parsons – definition of civil and property rights (including regulation of trade and securities) – commercial activity, regulation of single industry – provincial

o Para 56 – watertight vs living tree – constitution has to be able of growth – federal government argument

o Para 57 – dominant tide – allow for flexibility, overlap, concurrency between province and federal – problem – if there is a conflict, federal paramountcy comes into effect – centralizes federalism

o Para 62 – The constitutional boundaries must be respected, the dominant tide, as strong as it may be, may not sweep the boundaries out to sea – have to still respect the boundaries, no matter how flexible

o Worried about federal domination in this case

14

o Court concludes there is too much day to day regulation that have nothing to do with the national issues – eg mitigating systemic risk (economy is integrated more nationally and internationally) may call for national regulation, but that’s not only what you are doing in this legislation, that’s why this is NOT general regulation of trade (overbroad)

Aboriginal RightsIntroduction

Relevant Constitutional Provisionso S.91(24) Constitution Act, 1867

Created Indian status and Lands reserved for Indianso S.25 of the Charter

“Shield provision” Drafted to say no, the Charter will not be able to attack aboriginal treaty

rights and freedomso S.35 Constitution Act, 1982

(2) – creates wider definition of “aboriginal peoples of Canada” – includes Indian, Inuit and Metis – might it include other people not listed?

NOT APART OF THE CHARTER Before 1982, aboriginal rights existed in the common law of Canada Added the word “existing” to the rights to try to limit it S.35 doesn’t tell us what the rights actually are

Themes to Exploreo Role of history

Newcomer’s needed a legal fiction to legitimize their possession of the land Discovery Doctrine – says NA was unsettled, so they were creating

new land (empty land) Other way is to conquer it – invade, win, sign a treaty to give you

sovereignty and title to conquered lands In Canada, they didn’t overthrow any existing orders, just arrived and

slowly spreading in, so couldn’t use conquer, used Discovery Doctrine This legal fiction has never been questioned by the courts Crown created treaties with aboriginals to take over land – recognizing the

sovereignty of the aboriginal peoples by entering into these treatieso Legal Pluralism

Idea of “mixing” of legal systems Court comes to this principle when they say aboriginal rights are a mixing

of common law and aboriginal law Sui generis – distinct lawo Reconciling prior occupation of aboriginal peoples with Crown sovereignty

Maybe s.35 is about reconciling this fundamental tension (court says)o Fiduciary duties of the Crown – Honour of the Crown

Guerin v The Queen Fiduciary relationship says the fiduciary is responsible for the

dependent party in that relationship – has to act in the interest of the vulnerable party, not their own

Argument that Crown has fiduciary relationship to the aboriginal peoples

If the Crown breaches their honour (like a fiduciary relationship) then gives rise to legal rights

Crown asserted sovereignty and title on what was once aboriginal land, and through Indian Act says they control reserve lands too and will deal with them on their behalf – due to this power, must exercise it according to the principles of a fiduciary

Aboriginal Rights The Royal Proclamation, Oct. 7, 1763

15

o Issued to try and gain alliance with Indian peopleso Crown asserting sovereignty

“Our dominions and territories” – our land, so we have decision making authority on it

o Referred to as the Magna Carta of aboriginal rights “Nations” – some form of collective sovereignty “should not be molested or disturbed in possession of such parts…are

reserved to them…as their hunting grounds” “ceded to or purchased by Us” – it must originally belong to someone else –

title is given “essential to our interest”

o Both recognized aboriginal rights and asserted crown sovereigntyo Talked about purchasing Indian land and Crown sovereignty - Indication of

aboriginal land R v Sparrow

o Ron Sparrow was fishing – the net he was using was too large according to regulation under Fisheries Act

o Argued he was exercising aboriginal right to fish, and therefore has a right to use the large net – protected by s.35

o Fisheries Act is inconsistent to the extent to aboriginals (and specifically Sparrow) – so only in this case it is of no force and effect (not stricken down completely)

o S.35 “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”

Have to figure out and define “existing”, “aboriginal and treaty rights”, “aboriginal peoples”, “recognized and affirmed”

“Existing” – means “not extinguished” – expressly taken away by Parliament is extinguished – Parliament can only extinguish aboriginal rights through treaties, using express statutory language, BEFORE 1982 – can no longer extinguish constitutional rights – legislation cannot alter constitution

Court says has to be clear, deliberate that the right is intended to be extinguished, not simply regulated

Are existing aboriginal rights frozen in time? Eg. If you have aboriginal right to hunt, can you use modern technology?

Not frozen in time – aboriginal rights don’t exist in a vacuum – also “existing” not “existed” so affirms it in contemporary form

Does Sparrow have an aboriginal right to fish? Create some kind of historic connection to the practice of fishing –

about a particular place – site specific right Court points out it is a communal right, not an individual right If he has this right (which the court says he does), what does “recognized

and affirmed” mean? Not an absolute right (no limits) Therefore can potentially be limited by legislation “Justificatory process” – the Crown can justify limits on aboriginal

rights as long as they follow the processo What does existing mean? – Not extinguished

How do you extinguish? Use clear and plain language to express intent to extinguish BEFORE 1982

After 1982 (s.35 arrives) – those rights become constitutionalized and no longer open to unilateral extinguishing

Just because he could not exercise his right under the Fisheries Act does not mean right was extinguished

Federal government has exclusive jurisdiction over aboriginal’s and land (91(24))

16

If a province goes as far as to extinguish a right, they would be ultra vires due to this federal power

o What does “recognized and affirmed” mean? P.566 Aboriginal rights CAN be infringed by federal legislation, provided that they

justify the infringement Justification

Does legislation have the effect of interfering with an aboriginal right? [onus on claimant]

o Is the limitation unreasonable?o Does the regulation impose an undue hardship?o Does the regulation deny the rights holders their preferred

means of exercising that right? Is the interference justified? [onus on government]

o Valid legislative objective? Such as conservation, health and safety Eg in this case, don’t want overfishing, prevent

extinction Can’t be a colourable objective

o In keeping with fiduciary relationship? Perspective that the crown is managing resource

for aboriginal, not in the crown’s best interesto Priority Allocation?

Aboriginal’s have to be given priority allocation – if you only get to shoot one moose, then the aboriginal gets to do it if they have an aboriginal right

o Other potential factors: Minimal infringement, fair compensation,

consultation R v Van der Peet

o Sold 10 salmon for $50 that her common law husband caught under Indian fish licence – provision that said if you catch under fish food licence, you cannot sell, barter or offer to sell or barter any fish

o Argument: Not a valid infringement – contrary to s.35 – therefore no force or effect – She has an aboriginal right to fish – has to argue that she also has right to sell fish

o Most of the case is “does she have the aboriginal right to do this?”o Crown says noo Aboriginal rights background principles

General, liberal interpretation of s.35 rights Crown has a fiduciary duty to aboriginals Any doubt or ambiguity resolved in favour of the aboriginal Fundamentally different from other Charter rights

Those are individual rights, while aboriginal is community rights Charter rights are for everyone – only aboriginals get aboriginal

rights – community specific (so not ALL aboriginals technically get the same right, just the same community/clan)

Purposive interpretation – para 31o Reconcile that they recognize their existence before

Europeans with the Crown sovereigntyo Purpose of s.35

Rights, “reconciliation” and Crown Sovereignty Sui generis – taking into account perspectives of both aboriginal

peoples and common law: “intersocietal law”

17

“True reconciliation will place weight on each” aboriginal and Crown perspectives

o Integral to a Distinctive Culture Test “The claimant must demonstrate that the practice, custom or tradition was

a central and significant part of the society’s distinctive culture.” Is the practice, custom, or tradition a defining or central feature of the

culture in question? (distinctive but not necessarily distinct) Defining of their culture – an important aspect of their way of life –

only these are protected by aboriginal rights Incidental aspects of culture will NOT be protected

Relevant time period: pre-contact period – before Europeans came If practice, custom, tradition came after, it cannot be an aboriginal

right under s.35 Means of exercising the right can change over time, but the actual

right had to come before What makes rights aboriginal is that they were practiced before

Europeans came Problems:

o Evidentiary difficulties – hard to prove – non written culture/records

Court says they will be flexible about the kinds of evidence they admit – may allow present practice as proof

SCC says oral history is let in Also use anthropologists, archaeologists, etc to

give expert opiniono Culture is dynamic – why is point of contact relevant? New

cultures evolved due to this contact (also happened before when aboriginals met other aboriginals)

o What is the point of contact? Different parts of country had different points of

contact Therefore point of contact is specific to the group

we are dealing with R v Sappier

o Do they have an aboriginal right to harvest timber?o Aboriginal right test

Characterize the right in question: what activity, for what purpose, and where? (Van der Peet, Sappier)

Rights are site-specific – rights are integral to culture, which was at a certain place at the point of contact

Rights are usually constrained to personal use, not for commercial purposes

Was the practice integral to the distinctive culture (way of life) at the time of contact/control of the aboriginal peoples in question? (Van der Peet, Sappier)

Use experts (eg historians, anthropologists) who say that they did this pre-contact and it was integral

Problem: oral societies – so can use post-contact evidence to aid claim

All this onus is on the rights claimant to prove Extinguishment: Has the right been extinguished by clear government

intent? (Sappier) Look for statutes or treaties that specifically extinguish it

18

Even if the right was regulated pre-1982, its an existing aboriginal right

Is the aboriginal right justifiably infringed? (Sparrow) Eg endangered species Look at the reason they passed the law (the rationale) Is it keeping with the fiduciary relationship? – have to have

considered the aboriginal interest Did they engage in consultation with the aboriginal people? Is there priority allocation? – not everyone can harvest, but allow

the aboriginals to as long as it is in a sustainable wayAboriginal Title

Aboriginal title and the treaty-making erao Treaties used to extinguish title, therefore there was a title originally that needed to

be extinguished St Catherine’s Milling and Lumber v The Queen

o Privy council said there was a kind of Indian title – called it a “personal and usufructuary right” and underlying title was always held by the crown

Calder v AG BCo Recognizes that there is something called aboriginal title that exists and has to be

extinguished Delgamuukw v British Columbia

o Court recognizes that aboriginal title existed under common law – s.35 just constitutionalized it

o Court said that they can treat oral history has evidence o “Aboriginal title is a right in land” – fundamentally different from other aboriginal

rightso What is the nature of aboriginal title?

Sui generis Inalienable to all but the Crown – can’t sell or trade it to anyone other than

the Crown Communally held – held by the nation, not individually

Claims can only be brought by the nation, not by an individual Consultation has to be with the nation, not the individual If it’s a communal right, then the nation has to make decisions

about how to use it Not a fee simple title – there is a limit on this title – can’t use land in a way

irreconcilable with the “distinct” cultural use But not restricted to only use for aboriginal rights

The right of exclusive use and occupation of the land Uses are not irreconcilable with the nature of aboriginal title

o How can aboriginal title be proven? Claimed land must have been exclusively occupied prior to Crown

sovereignty and aboriginal group must have remained connected to the land in the present

NOT CONTACT, TIME OF CROWN SOVEREIGNTY No courts have ever found an aboriginal title to exist Can a nomadic lifestyle satisfy the prior occupation?

o Lots of cases say noo Problem: very euro-centric, doesn’t keep with the aboriginal law

Aboriginal Treaty Rights R v Marshall/R v Bernard

o Test for title

19

Claimants must prove “exclusive” pre-sovereignty “occupation” of the land by their forebears (para 55)

o What does exclusive mean? Effective control – the “intention and capacity to control” Ability to control – even if you allowed access to lands, it is a demonstration

of control – you let them ono What does occupancy mean?

Regular use of land – “a degree of physical occupation or use equivalent to common law title has been made out” (para 66)

o To understand what a treaty means, the courts will look at extrinsic evidence Violation of parol evidence rule – only look at contract itself unless there is

an ambiguous termo Treaty’s need extrinsic evidence to determine the intention of the treaty –

aboriginals might have a different idea of what the treaty meant – written in English, not translated, oral agreements – advantages the side that held the pen otherwise – need to look at common intention of the parties

o Look at the context – Peace and Friendship treaties to get them on the British sideo If you have a right to trade, that implies having something to tradeo Government can justifiably infringe on treaty rightso The rights in treaty rights are contained in the treaty (origin of the rights)o Treaties are NOT simply commercial contracts – solemn promises in part of a larger

goal of reconciliation – different rules of interpretationo Honour of the Crown is at stake, so ambiguities are decided in the interest of the

aboriginal peopleso Treaty rights could be extinguished and/or altered before 1982 with plain and clear

legislative intento Treaties might be internally limited

Criticism of Marshall – created treaty rights – allowed aboriginals to harvest for economic reasons against fishermen

s.35 makes clear that treaty rights are constitutional rights – separate from aboriginal rights

The Duty to Consult The duty to consult: Haida Nation, Taku River, and Mikisew Cree

o Why? So while they are deciding if the right exists, the government doesn’t use up

all the resources – policy of honour of the Crown It would not be honourable for the Crown to encroach before the right is

determinedo When?

Anytime the rights are at stake – but how does the government know? When the Crown has real or constructive knowledge of the existence of an

aboriginal rights claim Real: A statement of claim, litigation pending; treaty; got a letter Constructive: they should know – need to make inquiries if there is a

possibility of ito What and How?

How strong is the claim? Highly speculative and obscure or have a pretty strong claim?

How big of an infringement would it be on the rights? There is a spectrum: at low end: notice, information, listening tour – just

telling them what the gov is going to do. At the high end: get consent from aboriginal group

The middle: negotiations, accommodations (minimizing impact), compensations

20

Hard to know where the Crown is on the spectrum – is in relation to the aboriginal perspective, no proven right

The court decides at the end of the day where on the spectrum they are Haida Nation

o Duty to consult when you are dealing with an unproven aboriginal righto No s.35 right proven, so no right from s.35 to consult - court attaches it to the

honour of the Crown – broad, unwritten constitutional principleo Tells gov they have to engage in the process of meaningful dialogueo Also this case gives us this spectrum and framework of duty to consult

Taku Rivero They didn’t have to come to an agreement, weren’t at the high end of the spectrumo Government is allowed to think of other interests in balancing and compromising,

not just the aboriginal interestso Case shows flexibility in the duty to consult to allow government to impose its

objectiveso It isn’t necessarily the government that has to engage in the consultation, can be

undertaken by an administrative arm of the government – in this case the Environmental Protection Act

Mikisew Creeo Involved a treaty right - Gov wanted to build a road across treaty landso Crown says we have a right to do this because there is a provision in the treaty that

allows us to take up lands when we need ito Court says yes you have the right to take up lands, but you also have a duty to

consult - Other, aboriginal treaty rights are still being impacted by this roado Because of the Crown’s treaty rights, this is at the lower end of the spectrum ie

notice Rio Tinto Alcan Inc v Carrier Sekani Tribal Council

o Governments have a duty to consult with Aboriginal groups when making decisions which may adversely impacts lands and resources to which aboriginal peoples lay claim

o Nature of the duty varies with the situation considering the strength of the aboriginal claim and the seriousness of the impact on the underlying aboriginal or treaty right

o Potential remedies include injunctive relief, damages, order to carry out consultations

o Duty is triggered by Real or constructive knowledge of an aboriginal claim to a resource or land Government proposes conduct or a decision which may adversely impact

on the claim or righto Government can delegate its consultative functions to administrative bodies

Beckman v Little Salmono Government argues the modern treaty is a full codeo Court says Crown must still consult, treaty is only a starting point – honour of the

Crown is the overriding principleo In this case, it was at the low end of the spectrum – low impact on the rights - So the

notice that was given was sufficientMetis Rights

R v Powleyo Under s.35, metis has access to aboriginal rightso Problem: pre-contact requirement – metis are post-contacto How are metis rights under s.35 different and the same from aboriginal persons?

Step 1: characterize right (same) The right to hunt for food in this area – site specific

21

Step 2: Existing right (hasn’t been extinguished before 1982) (same) If not extinguished using plain and clear language, then still exists

Step 3: Is right integral to the distinctive culture of the metis people (same) Use expert evidence to show historical continuity Add new time requirement

o Time of effective control - for Metis Step 4: Can the government justifiably infringe on this right (Sparrow)

Test for Aboriginal rights: follow the 4 part test: o 1) characterize the right, o 2) figure out if practice/custom was integral to the distinctive culture (Van der peet

test), Is the practice, custom, or tradition a defining or central feature of the

culture in question? (distinctive but not necessarily distinct) Relevant time period: pre-contact period – before Europeans came

o 3) was this right extinguished (s.35:only existing rights: must look if clear and plain legislative intent pre 1982 extinguished it; post 1982 only through a treaty can you extinguish an Aboriginal right)

o 4) if there is a right, can it be justifiably infringed according to Sparrow test Does legislation have the effect of interfering with an aboriginal right?

[onus on claimant] Is the limitation unreasonable? Does the regulation impose an undue hardship? Does the regulation deny the rights holders their preferred means

of exercising that right? Is the interference justified? [onus on government]

Valid legislative objective? In keeping with fiduciary relationship? Priority Allocation? Other potential factors:

o Minimal infringement, fair compensation, consultationCanadian Charter of Rights and FreedomsConstitutional Rights before the Charter

Antecedents of the chartero Federalism protects some rights by pointing out which government can infringe on

these rights By allowing provinces to deal with civil and local matters, protect minority

rights (Ie Quebec)o John A MacDonald – three ways to protect rights and freedoms

Liberty is the most fundamental right and it is at the heart of the constitution

The extent to which a fed system of govt can operate to safeguard rights and freedoms

The extent to which legislation can protect fundamental freedomso AV Dicey

“Rule of law” eg Roncarelli The rule of law defines our constitutional arrangements Three definitions

Rule of law embodies a system of orderly rules and systems that the government must follow – discretion is restrained

o Unlike with tyrannical rule by despots – rule arbitrarily Rule of law functions equally – laws are equally imposed

o No special treatment – everyone is equally subject to the same laws

22

The judicial protection of individual rightso Judges set rules that protect individual liberty from

parliamento Rights are not taken away by judges unless the right is

plainly and clearly extinguished by legislationo There was a common law “implied bill of rights” just by

judges narrowly interpreting statutes The Implied Bill of Rights Reference re Alberta Statutes

General democracy – need to discuss issues to be a democracy Can’t have informed and legitimate voting/democracy without full

coverage of political issues (free speech) The right to free expression comes from the preamble

Similar to the UK constitution – democratic – therefore must be democratic in Canada

National issues – Canadian Citizens have the right to discussion, so all citizens must have this right and it is a matter of federal (national) importance

This right was given to federal head of power due to residuary power (not mentioned in s.92)

Saumur v City of Quebeco Rand J: Civil rights are from statutes, freedom of expression are from human

nature/natural, inalienable rights – don’t fall within provincial jurisdictiono Provinces argue that they have power over defamation laws, therefore can deal with

free speech – Rand J says no, what falls in your jurisdiction is the injuries that arise, not dealing with the freedom itself, just the consequences

o So this by-law is Ultra Vires by blocking the pamphlet – targets the original right itself

o Why does the original freedom go to Federal government? – like Alberta Statutes – residual power

o Dissent: this is all about a local, private nature, dealing with obscene materials, so the provinces should be able to deal with this

o Francophone judges say there is local jurisdiction, Anglophones say no Switzman v Elbling

o Used to be a provision in the Criminal Code that outlawed communism - The federal government repealed this prohibition

o Quebec made legislation – the Padlock Act Made it illegal to perform communist activity – if there was communist

activity they would lock up the houseo Rand J: Provincial government doesn’t have jurisdiction

Criminal clause that was repealed earlier – looks like colourable invasion on Criminal law

Not dealing with consequences of activity, you are stopping the expression of an original freedom (right to have views)

o Abbott J: Neither government can abolish original freedoms Weakness of Implied Bill of Rights theory

o If provinces don’t have jurisdiction over rights of original freedoms, it is the federal government who can destroy them

o So just handing the problem over to someone else Dupond

o Beetz J: there is nothing that falls out of both governments – is in one or the other or both

23

o Values or principles of “original freedoms” do not lie beyond the jurisdiction of both governments, it is within at least one of them

Charter History Negative liberty/freedom – protection from something ie protection from laws/government

infringing on freedom Positive rights – rights to certain things – eg. Right to rest and leisure The Obstacles and objections to a Charter

o Why was the enactment of a constitutional bill of rights controversial? What legal obstacles and objections stood in the way?

British notions of Parliamentary Supremacy Asking Parliament to give up its own power to judiciary

Balancing Quebec’s demands with rest of nation Federalism was a problem – We don’t know where the jurisdiction over

rights and freedoms lies Solve that problem by making it constitutional – but don’t know/couldn’t

agree how to amend our constitution Constitution similar to UK, not bill of rights system like the US – look how

the US bill of rights helped What rights are you going to put in?

Canadian Bill of Rightso Statutory implement, not a constitutional charter - Came into effect in 1950o AB made first Bill of Rights, but Court found it Ultra Vireso What are the differences between the Canadian Bill of Rights and the Canadian

Charter of Rights and Freedoms? Bill of Rights mentions property rights – not in Charter More narrow categorization of due process in Bill of Rights – expanded in

Charter Bill of Rights – Every law OF Canada – only applies to parliament, not

provinces Right to fair hearing in Bill of Rights – not in the Charter Charter has constitutional supremacy, Bill of Rights does not

o Scope – property and fair hearingo Parliamentary supremacy – no parliament can bind a future parliament

Implied repeal – if a future parliament does something that a previous parliament did not want them to do, the previous legislation is repealed and the new one governs

Dryboneso Law saying Indians could not be drunk off reserveso Laypeople could just not be drunk in public placeso Turn to Canadian Bill of Rights – s.1 – can’t discriminate on the basis of race – which

this law doeso Bill of Rights can override some federal statutes

Lavello If you were a status Indian woman who married a non-status man, lose your statuso But a Status man who marries a non-status woman retains status and gives status to

the womano SCC – does not violate Bill of Rights – all Indian men treated the same, all Indian

women treated the same Bliss

o Women who are laid off need this many weeks to qualify for unemployment, but if you leave for pregnancy need more

o Complainant fell in neither category – had to wait longero SCC – Law not discriminating, nature is

24

o Overruled in 1985 in another case Where did the Charter come from?

Trudeau Natural rights apply to all human beings – elementary principles of

justice Need entrenched rights for national unity – specifically Quebec

separation movement Entrenched rights are an extension of democracy

Cairns We are losing our Britishness due to immigrants In post war period, USA rises as dominant super power and Canada

becomes increasingly more American Also, Universal Declaration is forcing all countries to adopt human

rights legislation Russell

National Unity – symbol of Canadian Identityo Thinking about Quebec sovereignty

If all individuals have the same rights, group differences minimized – no more problems with Quebec

Weinrib People were pressuring government for individual rights, so they

have to respond to ito In 1980 – Trudeau wanted to create charter and constitutional changeo During 1980 referendum, Trudeau says if they vote against sovereignty, he would

change the constitution Quebecers thought it would be change the division of powers to give more

to provinces Trudeau says he meant charter of rights and freedoms

o Trudeau tries to unilaterally force through change, Reference goes to SCC and they say as a constitutional convention, not strict law, parliament needs substantial consent from the provinces

Judicial Review/Charter Legitimacy Proponents vs Critics

o What arguments and factors support the legitimacy of judicial review under the Charter of Rights and Freedoms?

Made by elected officials so democratic at heart Unites Canadians Dialogue theory (Hogg)

Weak form of judicial review Role for legislative response

o Eg. S.33 – notwithstanding clauseo S.1 rights are not absolute and can be infringed (sounds

like Sparrow) If there is a political will to bring back policy, then there will be a

“legislative sequel” to revise the statute Empirically, evidence doesn’t reflect what critics are saying about judicial

activism (Hogg) Eg. Morgentaler and abortion – court didn’t say can’t have abortion

law, but said you can’t have THIS abortion law The fact that the parliament hasn’t created a new one is a political

issue S.52 – States constitution is the supreme law

Came from political decision

25

Protects minority rights Anyone can bring forward a claim A more balanced court than before – regional representation,

women on the bench Unaccountable isn’t such a bad thing – they can do things that are

unpopular without worry Democracy means more than majority rule

Protection of minority rights is important – something politicians and democratic process can’t do

SCC has to give reasons for their decisions Shows the thought process – in the public domain and can be

critiqued Unlike in Politics – no reasons, they just do it

o What arguments support the view that judicial review under the Charter of Rights and Freedoms is illegitimate or, in any event, unfortunate.

Judicial activism Overturns the majority’s perspective in favour of the minority –

anti-democratic Judges aren’t representative of Canada (Bogart)

o Rich, white, males, old Judges are unaccountable – No one can do anything to them –

unelected – judicial independence “Court Party” has hijacked judges

o Politically motivated gays, minorities, feminists influence the judicial process as interveners

Courts are expensive (Bogart and Petter) Inaccessible – not everyone can afford an expensive lawyer to

argue their case Issues that surface become those of the upper-class of society who

have resources to litigate Also only those situations that have some kind of financial benefit

to the upper class, otherwise not worth it to litigate – eg cigarette advertising rather than homelessness

Legislation was the progressive approach to consider interests and issues of all people

Eg workers comp, minimum wage, unemployment insurance Built into the charter is a bias against the good thing the

legislatures do Doesn’t have positive rights, but negative rights (Petter)

No rights to shelter, food, etc Makes people apathetic in politics – things are just going to be decided in

court “Legalization of politics” Judges now in charge – Voters care less about voting and the

democratic process as the judges have all the power Dialogue model doesn’t really work

Looks bad if the parliament tries to go against the SCC saying “these are your rights” by enacting a new legislation

Legal disputes at the constitutional level are just moral debates (Waldron) Eg. Is abortion right or wrong? Base decision on evidence put before the court and precedent Why would you want moral decisions based on the past? And again, letting 5 judges determine outcome of a decision that

the whole country should get a say in Charter was not elected

26

Charter Framework and Interpretation (Constitutional Architecture) Ambiguity/problems with charter

o Rights in the Charter are only for certain people, not universal rightso Preamble talks about God – but s.2 recognizes religious freedomso S.28 protects gender equality

Rest of document giving rights to “every citizen” – no mention of gender Put in due to avoid problem in Bill of Rights where women only had to be

equal to other women, not with meno S.33 - allows infringements – “fatal flaw” of constitution – doesn’t make senseo S.15 – every individual is given equal protection under law – but s.15(2) protects

inequality – governments can treat different groups differently – sexual orientation also not in the list of groups

Courts have interpreted it to include sexual orientation even though it isn’t listed

o Problem with contradictory views – can people have views against other people due to religious beliefs, etc?

o S.27 – interpretive provision – hard to determine what is consistent with Canadian Heritage

1) What legislative powers does the Charter confer on the Parliament of Canada?o S.31 – no powers conferred to Parliamento Different from Constitution, which does confer all the power to the Parliament

2) What kind of remedy may a court give in enforcement of a Charter right?o S.24 – any remedy the court deems just and appropriate in the circumstances

3) What is the status of the French version of the Constitution Act, 1982?o S.57 – Equal to English oneo Look at both to find true meaning

4) What provision regulates the linguistic handling of the trial of someone who speaks only Ukrainian?

o S.14 – right to an interpreter 5) What is the consequence of a law’s inconsistency with the Constitution of Canada?

o S.52(1) – to the extent of the inconsistency, it will be of no force and effect 6) Might. S.2(a) of the Charter be used to challenge the denominational schooling rights in

s.93 of the Constitution Act, 1867?o S.29 – no

You can’t use the constitution against itself 7) How many years is the limitation on a declaration made under s.33(1) that an Act of

Parliament operates notwithstanding s.23 of the Charter?o Zero – s.33 does not attach to s.23

8) Does someone sued for breach of contract have the right to be tried in a reasonable time?o S.11(b) Its only guaranteed to people who have a criminal charge (offence)

9) On what principles is Canada founded?o Principles that recognize the supremacy of God and rule of law

10) What is the best textual basis for arguing that the Supreme Court of Canada has entrenched constitutional status?

o S.41(d) and 42(d) – can only be amended with super unanimous amending formula 11) What textual authority most clearly confirms that the Canadian Bill of Rights remains

unaltered by the Charter?o S.26 – guarantee of these rights should not be construed as denying existence of any

other rights that exist – ie the Bill of Rights 12) According to the Charter, how should it be interpreted?

o S.27 – Charter should be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians

Constitutional Amendment

27

o S.38 – 7/50 formula – controversy – Quebec and Ontario wanted veto’s – didn’t get them – argument is that all provinces should be treated equally

o S.41 – most rigid, unanimity requirement – want to change office of governor general or numbers of MPs and senators

o S.43 – bilateral amendment – only affects one provinceo S.44 – dealing only with federal matters – eg. Matters of the running of house of

commonso S.45 – provinces can amend their OWN provincial constitutions

Constitutional Amendments Act, 1996o Adds to 7/50 formula what provinces need to be apart of that 7 – including Quebec,

Ontario, BC – gives them back the veto they didn’t get in the 7/50 formulao Alberta also gets a veto due to its size, even if not specifically stated in 1(e)o Means the 7/50 has basically turned into a unanimous requirement – provinces

covering 92% of Canadians have to agree to an amendment under s.38 How a court approaches constitutional decision-making?

o Step 1 – Has a charter right been infringed? Or Engaged? Or potentially infringed? Burden of proof on the rights claimant

o Step 2 – Notwithstanding the prima facie infringement, is the infringement reasonable in a free and democratic society

Burden shifts to government if step 1 fulfilled, so they must now prove it is a justifiable infringement

Hunter v Southamo Charter has vague language so it can interpreted broadly – drafted with an eye to

the future therefore needs to be abstracto Should give a purposive interpretation of Charter rights – to give this, we need to

know purpose of charter – purpose is to guarantee and protect the enjoyment of rights and freedoms

o Judiciary is guardian of constitution R v Big M Drug Mart

o Charter should be given generous interpretation Similar to judicial approach to s.35 of Aboriginal rights – resolved in favour

of aboriginals Secure individuals of full Charter benefit

o Ambiguities resolved in favour of claimanto However, doesn’t mean individual will for sure win

Reference re Motor Vehicles Acto What does principles of fundamental justice mean?

Framers original intent is relevant, but NOT binding

Charter Application S.32

o Constitution itself says what it applies to – “the Parliament and government of Canada”

o What is “government”? Is different from Parliament as both are mentioned – must refer to executive branch

Dolphin Deliveryo Dolphin Delivery says you can’t as it is a charter application case – doesn’t apply to

private actors – says in s.32o What might be the grounds for an expansive interpretation of s.32?

Constitution is supreme law! Fundamental freedoms – why not make them as fundamental as possible as

subjecting as much of life in Canada to them as possibleo Why take narrow approach (as the court does)?

28

S.32 only mentions government Private actors deserve autonomy and freedom Only target government because they make the laws of the country Much wider impact on the legislative framework – applies broadly and

backed by power and authority of the state If we turn every dispute into a charter issue, it would create an impossible

burden on the court to handle S.1 – governments can reasonably infringe rights in a free and democratic

society – individuals cannot decide when it is ok to infringe on a personal right

o S.32 says government – indicating these two branches of application – legislation and administrative/executive

o What does “government” mean in s.32?o In what ways will the common law be subject to Charter?

It is because Charter is supreme So things that are authorizing state action, it is subject to it

o In what ways will it not? Whenever the common law is engaged in a private dispute between two

people – not subject to Chartero Union argues the injunction (court ordered) that infringes free speech and court is

apart of the judicial branch of government Fails Court says its not a part of the government Also, in disputes between two private parties, it always ends in a court

order – therefore all of these would be subject to the Charter using this argument – back door way of applying it to private litigation – not specified in s.32

o Charter does still matter to common law – Common law must develop according to Charter values – means the next time there is a case about secondary picketing, the charter won’t apply BUT the union could argue charter values have to inform the development of the common law and allow for free speech

o What does charter apply to? To legislation, delegated legislation, executive action (authorized by statute or common law) – but there must be some form of government action at the heart of the matter to which the Charter is being applied

Defining Governmental Actiono McKinney v University of Guelph

Are universities government for the purposes of s.32? Control Test: Does the government control universities? No, these

are autonomous bodies Nevertheless, Charter may apply in some cases wrt specific activities to

universities – eg. Implementing government decision or following orders of government

Stoffmano Board of Governors appointed by government, but day to day operations not

dictated by government – so can’t apply Charter under s.32o “Control” test

Applying the Control Testo Stoffman

Are hospitals subject to Charter? Routine control

o Douglas/Kwantlen Faculty Association v Douglas College Are colleges subject to the Charter? In this case, the government could control activities of the College –

therefore actions of college became in effect the actions of government

29

Therefore Charter Applieso Greater Vancouver Transportation Authority v Canadian Federation of Students

The government had power to exercise substantial control over day to day activities – maybe you don’t need to exercise it, just have ability to

Two ways to determine Charter applies Entity is “government” or under control Entity performs governmental activities

Entity can be subject to charter if: 1. Controlled by government – ie certain community colleges

(Douglas/Kwantlen, Lavigne)o All of its activities subject to Charter

2. Sufficiently governmental in nature – ie municipalities (Godbout v Longueuil)

o All of its activities will be subject to Charter 3. Entity is implementing a government program (Eldridge)

o Then only to the extent of that programo Lavigne v Ontario Public Sector Service Employees Union

Once you find government control, then ALL of that entities activities are subject to the charter

No distinction between public and private activities in this case Entities Exercising Government Functions

o Godbout v Longueuil La Forest J says there are 2 different ways to be controlled by government:

Government controls you Governmental in nature – a government entity

o Democratically elected o Coercive powers (eg bylaw enforcement officers)

If you are governmental in nature, then everything you do is subject to the charter

Eldridgeo Entities created by statute but are autonomous not subject to Chartero BUT it may be autonomous body is implementing specific government policy – if

that is the case, then that policy, and only that policy, may be subject to Chartero Use Hospital Insurance Act – governmental objective/policyo In running the emergency rooms according to this legislation, they must apply the

Chartero Difference between this and Stoffman – Stoffman was about internal running –

different hospitals had different policies regarding the retirement age – in this case, all the hospitals must follow the same standard for the services – also not internal due to giving it to all citizens

o In this case, there is a direct and precisely defined connection between the conduct and the policy

When an entity exercises a statutory compulsion of authorityo Authority over private parties and that power comes from statute, so that the

exercise of that power is liable to the Chartero Slaight

Power over the parties came from the statute, meaning the arbitrator was now bound by the Charter in crafting his remedies

Vriendo Alberta says there is no Charter application in this scenario – can’t raise basis of

government inaction – s.32 – applies to all matters of government – doesn’t say anything about inaction, implies only to government action – if they wanted to cover inaction it would have said so

30

o Court said the government DID take action – they made a legislation, therefore they cannot leave out something in that case – it is subject to the Charter – can’t let the form of the drafting determine if Charter applies (ie omitting does not prevent Charter from applying)

o Underinclusive legislation – left someone out of legislation – Charter has to applyo There are some positive rights in the Charter (eg. S.23) – forces government to do

things, therefore there are some aspect of the Charter that require the government to act and are subject to charter violation for inaction

Dunmore v Ontarioo Legislation left out certain types of workers (ie agricultural workers) regarding

ability to form uniono Government said that s.2 only STOPS government from acting, not forcing actiono Court said no, to protect freedom of association they do have to act to protect

vulnerable workers Sagen v VANOC

o Court said VANOC was not sufficiently controlled by government, wasn’t governmental in nature (autonomy over their day to day activities) and the failure to include ski jumping was not tied to government – it was an IOC decision

Extra-Territorial Application of Chartero R v Hape

Two questions to ask: Is the conduct at issue that of a Canadian State actor?

In this case, yes – the RCMP If so, is there an exception to the principle of sovereignty that would justify

applying the Charter? General principle of sovereignty – comity of nations – Countries

respect other countries laws There has to be a reason why the Charter should apply In this case, no reason why Turks and Caicos law not apply

o Canada v Khadr “The Charter bound Canada to the extent that the conduct of Canadian

officials involved it in a process that violated Canada’s international obligations” – ie “a clear violation of fundamental human rights protected by international law” (see paras. 24-26)

CCIS officials were interrogating Khadr – first question met Court said the US Supreme Court contravene international human rights, so

therefore there was a violation of international human rights, therefore Charter does apply to the extent that the Canadian State was involved

o Amnesty International Canada v Canada But – “this does not mean that the Charter then applies as a consequence of

these violations…all the circumstances in a given situation must be examined before it can be said that the Charter applies” (para 20)

Ie is there “effective control” over territory? Has there been acquiescence to the extension of Canadian Law?

Courts are not keen to extend Charter beyond Canada’s borders Canada (Prime Minister) v Khadr

o Khadr says they must repatriate himo Court says, as a general rule, the Charter shouldn’t apply beyond Canada’s borderso BUT maybe it should apply in this case given the violations of international lawo In 2010, the SCC issued constitutional declaration that government violated Khadr’s

s.7 rights and participated in an ongoing rights violation

Section 1 – Reasonable Limits What does s.1 tell us?

31

o The Charter guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society:

1. That the Charter guarantees rights and freedoms 2. Subject Only to such reasonable limits

Closes it to only that 3. Prescribed by law 4. Demonstrably justified in a free and democratic society

Prescribed by Lawo Prescribed by law – laws must be both accessible and intelligibleo Fair notice – you can’t follow the law if you don’t know what it iso Public accountability – democratic rationale – government should have to “put their

cards on the table” so we can assess how they are doing and change if we so chooseo All kinds of legal forms are capable of meeting the threshold of “Prescribed by Law”

– including an officials discretiono R v Nova Scotia Pharmaceutical Society

Doctrine of Vagueness Vague/unduly vague may offend prescribed by law, but may also

offend s.7 (according to principles of fundamental justice) But can’t have total precision in the law, need a little vagueness

o Don’t have to completely specify everything about it (eg killing someone)

o Also allows it to adapt to changing circumstances – flexibility, have to apply to the future

Rationale Threshold

High threshold to be considered vague Can’t be so vague that a conviction will automatically flow from the

decision to prosecute Has to be some standard

Court says they would prefer to save vagueness for s.7 discussiono Courts don’t usually use prescribed by law in s.1 to strike down laws

Oakeso First time a court fully elaborated how s.1 would worko What signals – words, phrases, concepts – does Dickson CJC employ in Oakes to

suggest the Court’s approach to interpreting s.1? Saying that the limitation of rights has its origins in the protection of rights

– limiting rights has the same purpose as protecting them Balance of probability standard – must be applied rigorously

There are different levels which need to be applied depending on the case

He seems to be saying we must require evidence – otherwise you can’t be convinced that something is more likely than not

o Need both rights and limits in a free and democratic societyo Standard of justification should be a stringent one

Limitation’s objective must be sufficiently important Limitation must be proportional to that objective

Demonstrably Justified: The Oakes testo 1. Pressing and substantial objective

see Big M Drug Mart rights are guaranteed – have to override them – so has to be important to

o 2. Rational Connection see Benner v Canada

32

Oakes fails this component – if you are trying to stop traffickers, it is irrational to then say everyone with drugs on them is assumed to be a trafficker – lots of people with drugs who aren’t traffickers

o 3. Minimal Impairment From “as little as possible” to “as little as reasonably posibble” to “margin of

appreciation” – governments have room within reasonable set of boundaries to limit rights – not necessarily as little as possible – more leeway as long as they are tending toward minimal impairment

o 4. Proportionate Effects See Dagenais: “even if the importance of the objective itself (when viewed

in the abstract) outweighs the deleterious effects on protected rights, it is still possible that the actual salutary effects of the legislation will not be sufficient to justify these negative effects..”

Minimal impairment step is where most cases are decided – was there an alternative that would impair less?

R v Lucaso Was it prescribed by law?

Lucas’s lawyers say no – Too vague - Purely subjective standard/criteriao SCC not convinced – Not perfectly drafted, but words and phrases cannot be crafted

with scientific precision – properly addressed under proportionality test under s.1 Contextualism: Edmonton Journal v Alberta

o Why contextualism? What its attributes and drawbacks? Particular right or freedom may have different value depending on its

context – eg freedom of speech – political speech vs advertising Attributes:

Helps idea of reasonable limits – how important in context is it? Abstract rights are hard to reasonably limit

Drawbacks: Not predictable Shift power to judges

o Limits as more than infringements Limits have particular goals – in this case, can gov’t limit publication of

material in divorce cases? – not just about limiting free speech, also about promoting privacy rights

Irwin Toyo Does Irwin Toy retreat from the “stringent” requirement set out in Oakes?

Yes, it introduces legislative deference – not an abandonment, just a shift in emphasis – it was necessary to understand sometimes deference is necessary

o “If the legislature has made a reasonable assessment as to where the line is most properly drawn…it is not for the court to second guess.” But isn’t the purpose of s.1 for courts to “second guess” legislatures?

Findings of facts – Courts are in no better position than government to weigh this evidence

Collision of rights in considering group interests (vulnerable groups) – government better at balancing competing interests – Courts don’t have expertise, knowledge

o What is the difference between government acting as “mediator between conflicting groups” and as a “singular antagonist”?

Where government is mediating, defer to them if there was a reasonable basis for the decision to limit

Where government is “singular antagonist” – ie criminal law – court more comfortable in saying the limit is too much

o Context does not equal deference – still have to provide evidence

33

Dollars vs Rights Debateo To what extent can economic justification be used in s.1 arguments?o Sometimes it is cheaper to limit rightso Why shouldn’t they be able to?

Usually cheaper to infringe rights Tarnishes value of rights – undermine notion of Charter

o Singh v Minister of Employment and Immigration Illegal refugees in Canada claimed charter rights during immigration

process Government said no we don’t have to, and we don’t have to extend rights to

a full hearing – too expensive Wilson J: If this is so, Charter is just an illusion

o Schacter v Canada Budgetary considerations cannot be used to justify a violation under s.1.

However, such considerations are clearly relevant once a violation which does not survive s.1 has been establish, s.52 is determined to have been engaged (Lamer CJ)

o Ref re Remuneration of Judges PEI A measure whose sole purpose is financial, and which infringes Charter

rights, can never be justified under s.1” (Lamer CJ) Problem: governments are going to argue its not sole financial purpose –

putting money to somewhere elseo Nova Scotia v Martin

Budgetary considerations in and of themselves cannot be normally invoked as a free-standing and substantial objective for the purposes of s.1 (Gonthier J)

o Figueroa v Canada Might be instances in which potential impact upon the public purse is of

sufficient magnitude to justify limiting the rights of individual citizens (Iacobucci J)

Newfoundland (Treasure Board) v N.A.P.E.o Pay equity legislation – equal pay for equal work regardless of gendero Government of Newfoundland backed out later – said they would make equity

payments latero S.15 of Charter – have to treat people equally based on gender – so if gov’t says we

will save money by not remedying discrimination we know exists – discriminatoryo Issue – is the limitation of equality rights reasonably justified?o S.1 step 1 – pressing and substantial objective

Government says financial crisis – won’t be able to pay for other programso Step 2 – Proportionality

Is it rationally connected? – not spending money equals saving money and getting out of debt

Government could also say it is that they cut all over the place o Step 3 – Minimally infringing

Delay, not total abandonment – so minimally infringing Keeping status quo, not really an infringement Putting in context – cutting everywhere

o Court agreed with government – need to give some leeway as they were making a decision in balancing interests

RJR MacDonaldo McLachlin in her s.1 analysis argues the other side of s.1 issue of contextualism and

deference

34

o Before the state override rights, there must be a reason – the task is not easily discharged and no matter the importance of the goal, if government can’t show it is reasonable, it will fail

Different cases show different sides of court – strict approach of RJR vs government leeway of Irwin Toy

Court gradually went from financial decisions cannot be a reason to most of the time they cannot be the reason

Section 33 Who can invoke s.33? – Parliament or provincial legislature Have to “expressly declare” – have to actually explicitly say it in the legislation itself Can only be notwithstanding s.2 or ss.7-15 of the Charter S.33(3) – sunset provision – built in expiry after 5 years Ford

o Quebec enacted legislation regarding the Constitution Act, 1982 – made all their former legislation go with the notwithstanding clause – every law in Quebec was under this

o Political stance as Quebec didn’t sign on to the constitutional amendmento ARGUMENT: By using boiler plate clause in all their legislation, Quebec failed based

on “Expressly declare”: means that you have to explicitly say what provision of the constitution they are overriding, not just the numbers but the actual right

Purpose of the charter is to protect and guarantee rights (Hunter v Southam) – purposive argument/approach

Purpose of s.33 – what is it designed to protect? Balance democratic engagement with protection of rights – cannot interpret it in a way to undermine its own purpose

o Court said Quebec followed the form that s.33(1) dictateso Court also said sunset clause is there to let the people decide if it has been

improperly invoked - not for the court to interveneo S.33 says parliament and legislatures can override courts as long as they follow the

formal requirements laid down by s.33 – doesn’t make sense that the court can override back

o However, court said Language of s.33 does not allow for retroactive use b/c of the word “shall operate” in s.33 – Laws can only go forward, not backwards

o court not doing substantial review when it comes to s.33, just that the requirements are followed

Questionso In what sense might s.33 be characterized as a “flaw”? Does s.33 “reduce individual

rights”? Rights are guaranteed by Charter, but how valuable is that when the

government can just override them? Also, don’t have to give a reason and pretty easy for them to use it - Majority

can abuse minority rights in this situationo What is the “genius” of s.33 that Roach suggests? How can an override of rights be

conducive of dialogue? Allows for flexibility Court doesn’t always get it right, they could get it wrong – allows

government to combat it Purpose of federalism – promotes diversity by allowing governments to

decide things based on their local nature rather than central court deciding for the entire country

Allows the courts to be less timid in overstepping boundaries as government can just override it – court (people) vs government debate

35

Charter Remedies Constitutional Remedies: Constitution Act, 1982

o S.52 has power to declare provisions of no force and effecto “To the extent of the inconsistency” o S.24 – only applies to Charter, while s.52 is for the whole constitutiono S.24 allows more remedies than 52 – also more broad than 52 as 52 only deals with

laws and 24 deals with rights and freedoms Schachter v Canada

o Issue was what is the remedy?o Court has flexibility in determining course of action – only to the extent of the

inconsistency (s.52)o So either say everyone gets it or no one gets it (case of underinclusive legislation)o The constitution doesn’t require benefits given in this case, so the constitution can

take them away, as long as it is taking it away equallyo Say they can read in because they have the power to read down – otherwise they are

just saying the way you draft the law will determine the remedyo So the question is should they read in?

Size of the group – budgetary impacts if you read in large groups Also respect the roles of the legislature by looking at budgetary

impacts and size of the group – would they have legislated this if they had known the new group would be included? Don’t know what the government would have decided

Therefore, the larger the group, the more you should let the government make the choice

In this case, the group is too large, don’t know if the government would have done this

o So they strike it down but suspend the declaration Don’t want to strike down a benefit conferring scheme, so give the

government time to fix it without taking away the benefits from people Type of Remedy

o Declaration of invalidity – striking downo Severance – strike down the offending provision onlyo Reading ino Reading downo Suspensions of Declarations of Invalidityo Tailored remedies under s.24(1)

Remedies Testo 1. Define the extent of the inconsistencyo 2. Determine the appropriate remedy: Severance? Reading in? Read down? Struck

Down in its entirety? Consider

Remedial precisiono If there are several options available to fix it, why should

the court choose? That is a policy choice for the legislature to make

o If we change it here, does it change it throughout the act? If that’s the case, don’t have a precise remedy

o In these cases, strike it down and let the legislature fix it Budgetary implications

o The greater the budgetary impacts, the less the court should do

o Just strike it down in those cases Relative size of the added groups

36

o If adding a much larger group, be more cautious Effect of remedy on the remaining portion

o Does reading in/down fundamentally alter the scheme? Extent of interference with legislative Objective

o 3. Should the remedy be temporarily suspended? Danger to the public?

Imagine there is a constitutional problem with the law against murder – if you strike it down, people can now legally kill

So strike down in a year or w/e so they can fix it in the interim period

Rule of law threatened? Eg. Manitoba – if they struck down all their laws, then there would

be no valid laws in the province Nature of the benefit – required or discretionary?

Don’t want to strike down required benefits – want beneficiaries to continue to get them while the legislation is being fixed

Perpetuation of an unconstitutional state of affairs Looks bad – declared law unconstitutional, but still allowing it to be

law Vriend

o What is the extent of the inconsistency? Underinclusive legislation – doesn’t include sexual orientation

o Remedy? Is it remedial precise to read in sexual orientation?

Court said sexual orientation has a common enough definition that adding it is reasonably precise

Budgetary impacts of reading in? Maybe have more complaints, which incurs more costs But adding only a very small group, so not a huge strain – moderate

implications Effect on the remaining portion?

Consistent with the rest of the act – purpose is to protect human rights – just adding a group that is seeking these – totally consistent with the purposes of the act

Extent of the interference with legislative objective? Would the government had enacted the act had they known – in

this case, they probably would have still enacted it Also, if government doesn’t like it, they could repeal the act entirely

M v H o Schachter Test:

1. Extent of inconsistency Too narrow, underinclusive definition of spouse

2. Remedy inconsistency Budgetary impacts

o Redefining spouse doesn’t expand government benefit scheme; may be a higher cost of people using the system

Relative size of the added group- likely a lot smaller than the group currently

o Purpose of legislation is to protect spouses and same-sex spouses need just as much protection

Reading in may be best remedy; court says this is not the case for reading in

o Said they couldn’t guarantee that’s why legislature would have done

37

Problem is the remedial precision Another section says you can opt out of spousal support (prenups)

and you’d have to change that as wello Many sections with similar problems

Court says appropriate response is not to read in but to strike down and suspend so that legislature can fix it

Must suspend so people can still collect spousal support, picked a 6 month period

Government passed an Act to amendo Must explicitly change original Act/definition to be

compliant s. 24 creates issues: must first prove your right has been infringed

o Must apply to a court of competent jurisdictiono Courts of Appeal, QB Courts, and SCC, s. 101 courts

Provincial courts are usually of competent jurisdiction with 3 factors: 1. Court has power over parties to dispute 2. Jurisdiction over subject matter 3. Jurisdiction over Charter remedy being sought

o Provincial courts are usually yes to all this, not so much administrative tribunals

3. Remedy must be appropriate and just in the circumstances What about provincial courts and administrative tribunals? It’s a question of fact depending

on o Do they have jurisdiction over the parties?o What is the subject matter of the dispute?o What is the remedy?

Doucet-Boudreau Case Orders government to create French language instruction where numbers warrant Court issued order that they use best efforts to build school and Court retains

jurisdiction to hear reportso Order gives judiciary too much power in requiring reporting backo Gives them an enforcement provision, a role much like the executive (problem

with separation of powers) Majority says the order can be saved as appropriate

o s. 24: “What the court considers appropriate and just”o On the Court’s order and appropriate and just

The point of remedies must be to vindicate rights This order does that

Must be legitimate as something courts can do This is an appropriate constitutional remedy

Appropriate under circumstances? Nova Scotia has failed to comply more than once; didn’t want

to build the school due to cost Only had to do this while numbers warrant; problem of

timeliness as the right is being eroded as the children grow up Appropriate and just remedies:

o 1. meaningfully vindicate rights and freedoms of claimantso 2. employ legit means within framework of constitutional democracyo 3. be a judicial remedy which vindicates the right while invoking function and

powers of courto 4. be fair to the party against whom order is madeo 5. evolve to meet changing needs and circumstances

Deference to legislature ends with vindication of rights begins

38

Dissent: Court shouldn’t be supervising; should be seeking contempt order

o Says order goes against functiso Power/jurisdiction ends once the order has been carried out

Vancouver (city) v Ward (not assigned) Court says damages are available under s. 24 because they’re appropriate

and just in the circumstances 1. Establish that Charter rights have been breached 2. Demonstrate why damages are just an appropriate, whether they

would fulfill one or more of the related functions of compensation 3. State has opportunity to demonstrate that countervailing factors

defeat the functional considerations that support a damage award 4. Assess quantum of the damages

Fundamental FreedomsFreedom of Religion

Fundamental Freedomso S.2 Everyone has the following fundamental freedoms:o (a) Freedom of conscience and religion

“And” – shows conscience and religion are both potential grounds under s.2(a) – protects two separate rights

“Conscience” – protect non-religious peoples fundamental personal beliefs – eg. Atheism, vegetarianism

R v Big M Drug Marto What is the “Purpose test” and what’s the problem with recognizing a “shifting

purpose” argument? Purpose was to promote a kind of religious observance Gov’t argues that used to be the purpose, but it has shifted now – turned

into a secular day of rest – important to protect workers who would have to work on weekends

Court rejects this – there can be no shifting purpose – otherwise could legitimize any formerly unconstitutional law – as well the court was interested in enforcing rights under the charter – therefore hold govt to strict standards – letting them shift the purpose would allow them to avoid constitutional scrutiny

o The purposive approach in operation Look at the purpose and the effects – either one of them could invalidate a

law under the chartero What does freedom of religion protect?

Also captures “indirect coercions” on religious practice – protects on both compulsion (state cannot force you into religious activity) and restraint (state cannot restrain you from religious activity)

Not just beliefs, but acts on those beliefso Dickson says this is “indirect coercion” – indirect form of control which seeks to

control and limit alternative modes of conduct available to otherso Could also have direct negative effect: Have to close on Saturday for your own

religious reasons and then Sunday due to lawo Using s.27 the purpose of s.2(a) is to protect a wide array of religious freedomso Also says an unconstitutional purpose cannot be saved by s.1 o Original purpose was religious compulsion – against chartero Purpose or effect of law can render it unconstitutionalo Rejects the shifting purpose argument – law that begins as unconstitutional

cannot be deemed constitutional later for a different purposeo Dickson – need a liberal interpretation of Charter

39

o S.1 won’t be satisfied if purpose is to infringe on Charter Edwards Books and Art Ltd v The Queen

o Similar law as in Big M – Ontario Retail Business Holidays Acto Has exceptions to Sunday closing law – If open previous Saturday, then can remain

open on Sunday o How does this infringe freedom of religion?o Look at purpose

Provide uniform holidays to retail workers Bad for Edwards because they cannot stay open on Sunday and a secular

purpose cannot give rise to a s.2(a) claim What is religious about this legislation?

Lots of the holidays are Christian holidays Sunday was the other “holiday”

So how is this “secular” given the clear overlap with Christianity? Court says if you are going to have a day off, it makes sense to give a day

that most people would choose to have off due to religious reasons – not a religious reason, just practical

Lots of Law has its origin in religious practices – if all those laws are now unconstitutional, going to have a problem

Secular purpose laws with secular objectives – just have religious inspiration

There are exceptions built in – so not compulsory Also have other secular holidays (ie NY, thanksgiving) Use legislative debates – probably don’t say anything about religion

o Now look at the effects Indirect coercions violate s.2(a) – doesn’t matter if its direct or indirect,

foreseeable or unforeseeable, intentional or unintentional Does not mean every burden is offensive on freedom of religion – if the

burden is trivial and insubstantial, won’t infringe s.2(a) There is an “internal limit” to s.2(a) Minor interference with religion is not infringing s.2(a) – has to have an

actual state act that threatens religious practice In this case, there are differential impacts on different kinds of religious

groups - not an issue for Sunday observers or non-religious Real impact is on Saturday observers – can’t shop Saturday, and now can’t

shop on Sunday either Forcing to compromise religious beliefs – actual burden, not trivial

o S.1 Dickson J: Weekends should be protected – using Oakes test –

Step 1: Pressing and important concern? – yes, so survives first part

Step 2: is it minimally impairing? – can think of a minimally impairing law – if you close one day of the week, open the other

o Dickson said it infringes as little as is reasonably possible – gives deference to parliament – it’s a compromise – protect the workers of the bigger companies (protection of vulnerable groups)

o Beetz J (concurring minority) – no discrimination from act itself – discrimination is from beliefs – act doesn’t make you close on Saturday, religion makes you close on Saturday

o Wilson J (dissent): Dickson not taking step 2 seriously – don’t see rational connection for the reason – state cannot decide to subordinate the religious freedom of some citizens just because of the size of the retail operation

40

o Indirect burdens? Yes – whether direct or indirect, intentional or unintentional fall within s.2(a)

o But limits to s.2(a) – trivial or insubstantial burdens will not infringe 2(a)o Line drawing such as in this case are what court should give deference to

Parliament for for s.1 Syndicat Northcrest v Amselem

o Where is the government actor? Not dealing with action or statute, dealing with a private contract between tenants/co-owners in a condominium unit – no government action

o Does not mean it is a free for all, however – provincial rights laws may come into play

o Defining Religion and Religious Freedom Why a “personal and subjective” approach?

Court is not in the position to question the validity of a belief/religion – it would be an objective approach otherwise

Purpose of the charter is protecting individual rights – so focus on the individual

Also otherwise would be determining priority of religion – causes tension and impractical logistically to determine this

o Religious Freedom Analysis 1. Does the claimant sincerely believe in a custom, practice or belief having

a nexus with religion? 2. Has the custom, practice or belief been interfered with in a manner that is

more than trivial or insubstantial? Consider context of harm and rights of others

o Practice harming others can be limited See Saskatchewan v Whatcott

o Religious rights can’t harm others (Big M)o Court prefers broad protection of 2(a) – deal with harm to

others under s.1 – but did not throw out idea that physical harm cannot be captured in 2(a)

o History of the belief, practice, custom is not necessary, but can helpo Testimony to show sincerityo Majority – aesthetic purposes not sufficient to override human righto Binnie J (dissent)

They signed on to an agreement saying that can’t have this on their balcony – if they wanted it, should have gone somewhere else

o Critical nature of this case – broad definition of freedom of religion Alberta v Hutterian Brethren of Wilson Colony

o S.2(a) is conceded – crux of matter is on application of s.1 and Oakes testo What is pressing and substantial objective of government?

Preventing identity fraud – minimized fraud by having pictures on driver licence

If you can define purpose in a specific way, aids in using s.1 How does it help government that the purpose is a universal photo

requirement? Applies to everyone If even one person goes against it, ruins it – rationally connected –

if objective is everyones photo is in the system, need to have everyone’s photo in the system

HUtterites say not minimally impaired – why not exempt hutterites – only 250 people

Majority says, this does not meet the objective of the lawo Does the Majority articulate a more deferential s.1?

41

S.1 of the Charter does not demand that the limit on the right be perfectly calibrated, judged in hindsight, but only that it be “reasonable” and “demonstrably justified”

Shifting emphasis of s.1 – is it about deference or guaranteeing rights? Language allows courts to choose – in this case, it was more deferential

o The revival of ultimate proportionalityo Good in this law – everyone’s photo gets in the databaseo Not too bad – just increasing costs of lifestyle, not extinguishing religious rightso Abella J Dissent

The universal photo requirement has been characterized too narrowly – not the objective

Objective is actually to minimize identity theft If this is the objective, what is wrong with the 250 exemptions? Willing to have a licence without a photo that says not to be used for

identification purposes? – Majority says no, that alternative does not fit objective of having everyone in a database

o McLachlin – lots of incidental impacts on religiono Hutterite argument – not incidental – large financial costso Also, if the hutterite fulfills the requirement of getting a licence, they have the right

to access this system in conformity with their religiono Majority favours deference to government – dissent takes a strong view on the

depth of the detriments suffered R v Kharaghani

o How might you defend a member of the Church of the Universe charged with possession of marijuana given that “the Church holds that cannabis is the Tree of Life and is a sacrament from the hand of God.”?

o At least 6 ways Is it a sincerely held belief that is apart of the nexus of the religion? Is it being interfered in a substantial way? Oakes test Remedy

o Quote Big M, Hunter v Southam – purpose of charter is to guarantee individual rights protection

o Also purpose of the right that is being relied upon – in this case freedom of religion (2(a)) – Syndicat, Edwards, Big M

o Application of steps Step 1: Sincere belief (Syndicat) – yes we do – big part of their religion – it’s

a church Step 2: trivial or insubstantial interference? No it is criminalizing the

practice – total denial – actually threatened (abolished in its entirety)o S.1 Oakes test for the church

Step 1: pressing and substantial concern – challenge – what are the harms of marijuana? Gov’t has to demonstrably justify it

Step 2: Rationally connected – say objective is to reduce harm, but no rational connection between marijuana and healthcare harm – also, marijuana is a benefit to some people both health-wise and religious-wise – not in a drug trade, where other harms could come into – for personal use only

Step 3: minimal impairment – law is overbroad in stopping religious use – not a part of the problem

Step 4: ultimate proportionality – benefits to the law not balanced with deprivation – this law is destroying individuals ability to practice his preferred religion – not proportional

o Court says no – Crown argument

42

Reasonable limit is met – so s.1 appliedo Possible remedies if church had won?

Have law struck down Read it down or read in exemption (Sharpe)

Freedom of Expression (Commercial Expression) 2. Everyone has the following fundamental freedoms: b) Freedom of thought, belief, opinion

and expression, including freedom of the press and other media of communicationo Broad – intend to allow a lot of freedom of expressiono Framers wanted to capture as many forms and varieties of expressiono Therefore court should take expression rights broadly

Why free speech? o Free speech is important to Democratic purpose – opposing views are important to

allow citizens to make a choice – also prevent state from only protecting state interests

o Protect idea of human dignity – individual has right to say what they want without suffering from persecution – expressing yourself is what makes us human

o Free speech is also a communal right – expression is what links and creates communities

o Free speech helps us find the truth – better to allow all voices out then suppress them

Why limit it?o Tyranny of the majority – can overpower marketplace of ideas and enforce their

(potentially wrong) ideas – see holocaust, Rwanda genocideo Perspectives differ – truth is in the eye of the holder – there is no ultimate search for

truth, so there may be a role for the state to stop some speecho Free speech will also allow for hate speech – suppresses human dignity – takes away

the right you are trying to protecto Equality is also a form of democracy – sometimes we have to limit free speech in

order to protect equality – eg. Political advertising funds – need a cap to make it equal

Irwin Toy Ltd v Quebec (AG)o Challenge to Quebec consumer protection act regarding directing ads to kids under

13o Argument by government that commercial free speech is not protected by s.2(b):

Form of expressions doesn’t go to any of the principles underlying freedom of expression

o Must take purposive approach to the Charter and the section: commercial speech doesn’t have anything to do with the purpose

o Argument for commercial free speech: it has value because there is consumer product information being transmitted

o 1) Does the activity fall within freedom of expression? Any attempt to convey meaning = expression Violent actions will NOT fall within 2(b)

o 2) Purpose test Must show that there is an interference with the right by showing the

limitation restricts Content OR the effects of the restricts their ability to convey their meaning

If restricts content, move on to s.1 – if effects restrict, move to step 3o 3) Restricting Effects

Demonstrating Values

43

If the effects of the law restrict values in some way (but not purpose) then claimant must show a further requirement that their speech has the values of free speech

If its an effect of the legislation – then must prove that the speech you are attempting to convey (being restricted) is reflective of the principles of free speech

Pursuit of truth Individual self-fulfillment Participation in the community

o S.1 Court says contextualism matters Children are vulnerable – need protection – pressing and substantial (step

1) Step 2: rationally connected? Yes, restricting ads is Step 3: minimally impairing? Standard is really reasonableness – is there

some basis for the line drawn – doesn’t matter if court would have drawn line somewhere else – was the line drawn reasonable? Not for court to second guess the balancing of competing interest – retreat from strict language of Oakes

o Dissent (McIntyre) There is no evidence that the total ban is required If we compromise freedom of expression at margins, will compromise the

entire freedom RJR MacDonald

o Apply Irwin Toy – attempting to convey meaning – therefore expression under s.2(b) – say it’s the purpose because they are targeting content of the expression

o Restriction prevented cigarette companies from promoting themselves and added warning labels to packages

o Cigarette companies say it infringes their free speech – attempting to convey meaning – this is an attack on content – purpose is about restricting content – so go straight to s.1

o s.1 is about making the govt prove their reasons, limit to deferenceo In this case, govt did not provide all the info they had, so court said they would make

an adverse inferenceo Therefore no evidence why total ban was required – a more carefully tailored ban

should be consideredo Commercial expression should not be lightly dismissedo Warning labels were putting words in the company’s mouth – unconstitutional o Minority

Gov’t should be able to anticipate harms and should not have to prove the cause and effect everytime they want to put something in the law

Courts are not specialists, should not be questioning govt We should be able to distinguish types of speech in s.1

Should look at the right in context, not in abstract (Edmonton Journal)

Taking a purposive approach to s.2(b), need to use contextual approach – not all free speech has same purpose

In this case, this isn’t core political speech, it is for profits – also the product kills – trying to profit on a product trying to kill people

Problem with contextual approach – have to protect the principle of free speech, so important cannot weaken at its margins even

o Problem with court judging what is on the periphery and what is not core –not their place, and they don’t have the competence to decide this

o Court is a minority of people – institutional bias

44

o Looks like a popularity contest – could result in restricting of minority speech – going against purpose of free speech

Freedom of Expression (Hate Speech) R v Keegstra

o Keegstra charged under s.319 of the Criminal Code – teaching his social studies students anti-semetic teachings

o S.319 Need definitions for “private conversations”, “hatred”, “communicating

statements”, “identifiable group”o Building constitutional argument against s.319

1. Does he have a 2(b) right? He is attempting to convey meaning – in the world of s.2(b) Government tries to argue this is violent speech (Irwin Toy) – court

says no, only real, physical violence that falls outside 2(b) 2. Is right being infringed/limited?

Attacked on content or effect of restricting speech? Seems like attack on content – can’t say these things

3. Move to s.1 1. Pressing and substantial objective

o Could either concede there is an objective, but could also try arguing that there is no pressing objective

o Government would argue that words can cause harm in 2 different ways

Causes harm to targeted individuals – affects their self-worth

Causes discord in society 2. Rational Connection

o This actually does the opposite of the objective – it is promoting the speech it is trying to stop by drawing attention to hate speech

o Conspiracy theorists – why doesn’t govt want us to talk about it?

o Government argument Criminal law is also a form of expression – society

or states way of labelling speech as hateful Law doesn’t have to be optimal – efficacy is not for

the court to decide in terms of constitutionalityo Court says this is the kind of speech that is found in the

periphery, not core of free speech 3. Minimal Impairment

o Overbroad – chill free speech – people will self-censor for fear of breaking law

o “Hatred” – broad meaning – should have been drafted more precisely – in ‘Murica, its dangerous speech that is against the law – creating a clear and present danger of harm through speech

o Court says there are lots of defences and exceptions built into the statute itself – doesn’t include private conversations, etc – so not overbroad

o Also gives a definition of “hatred”: “connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation. … Hatred is predicated on destruction, and hatred against identifiable groups

45

therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society.”

o This law is reasonableo Dissent

Not demonstrably justified that the law does its job Overbreadth of law and the chilling effect Maybe human rights codes might be better way of dealing with hate speech

rather than criminal law – then you don’t go to jail and interfere with their liberty

Lays out three main rationales for freedom of expression: 1. polical process/democracy 2. search for truth/marketplace of ideas 3. inherent value/self-actualization

Section 7Life, Liberty and Security of the Person

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

o First branch: right to life, liberty and securityo Second branch: and the right not to be deprived except in accordance with

principles of fundamental justice The section says the right itself is limited in the section itself – internal limit

o Putting limit in s.7 puts onus on the rights claimanto Otherwise, the amount of infringements by government for this clause would be

huge – great range – so build internal limit Motor Vehicle reference

o If you drive with a suspended licence, you will go to jailo Argument against it:

Going to jail violates right to liberty (have to engage one of the three s.7 rights)

And his liberty being infringed in a way not conforming with PFJo What do PFJ mean?

Court imposed substantive due process They read it in context and said that it would not make sense to

have lesser rights which were interpreted more broadly than these more important rights

o Been ignored in the future cases Living tree constitutionalism – meaning may have changed Purposive approach to charter interpretation – why use different

approach for s.7 then the rest of the charter?o Purpose of s.7 must be read in terms of the purpose of the

charter – to guarantee individual rights – so why take an interpretation that lessens that guarantee?

PFJ doesn’t mean natural justice (like is argued above)o If the constitution wanted it to mean that, they would have

used it – PFJ has broader definition than natural justice PFJ is not public policy, it is in the basic tenants of the legal system

o Just because the public thinks something doesn’t mean it has to be

o Better to let a guilty person go free than jail an innocent person – presumption of innocence

Court says they will have both procedural and substantive elements in PFJ

Held that “principles of fundamental justice” had two prongs:

46

o 1. Is the law substantively fair? (Should we have a law at all?) and

o 2. Is the procedure fair? R v Morgentaler

o Charged for providing an abortion in a private clinico This case focused mostly on the liberty and security interest of the female recipients

of the abortions, not Morgentalero Does this law infringe the security of the person?

Mental anguish/psychological stress can infringe security of the person Right to bodily integrity – the sooner you get an abortion, the better – if you

have to delay it due to the law, law is increasing greater degree of risk Also, bodily integrity means having the right to make decisions

about your own body – imperilled when the state gets to make decisions about your body that may not be in accord with your own views/priorities

o Now have to show that this infringes PFJ – principles basic to our legal system Court – finds that the defences are basically unavailable

Defence: you get an “approved” abortion – contrary to PFJ b/c there is only a certain number of hospitals and other problems (ie committee has to approve abortion) result in less ability to get it

o No legal standard in the committee decisionso Also, provinces can create even more stringent

requirements Having some women being able to get abortions while others can’t is a

violation of PFJ – system must have equal and fair opportunities – manifestly unfair

o Dickson, CJC: Infringing security of the person “state interference with bodily integrity” “Serious state-imposed psychological stress”

o Gov’t option to remake the system: Make it equal throughout the country for everyone

o Beetz Security of the person right to access to medical treatment – state

intervenes to delay the seeking of medical treatment, that triggers security of person interest

Real problem here is the delay the system creates – unnecessary delay violates PFJ

o Wilson Primary matter – liberty and a woman’s right to choose to have an abortion Without interference form the state

Rodriguez v. British Columbia (AG) Caseo she had Lou Gerhigs disease. Wanted to end her life with assistance. Law prevented

her from getting assistance to get suicide, and she challenged that constitution. 5-4 decision.

o 241. Everyone who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicie, Whether suicide ensues or not, is guilty of an indictable offence and liable to

imprisonment for a term not exceeding fourteen years.o 1). Engage security of a person: serious psychological stress can engage your

person. Be able to have a person help you commit suicide, w/o it, now you have to suffer through prolonged mental deterioration. Law creates this stress. NOT your condition, LAW!! State cannot interfere in a way that violates your rights…state doesn’t have an obligation in terms of your condition though.

47

also argue bodily integrity: prevents her from having direct control or her body. here she is not in control of her body, because she can’t have others help her gain control over her body. Again, can’t argue the disease itself helps you lose control, its about how the state interferes with her being able to control her body.  

Liberty: making decisions regarding a persons body.o 2). Does it infringe PFJ? Argue it’s overbroad. Overbreadth: What is the point of

s.241?? Good place to start. Vulnerability about ppl, goal might be to protect them. Life is precious, death comes when it comes, should not accelerate onset of death because of the preciousness of life. Constitution is being pushed into morality/meaning of life. With these goals in mind, how do we challenge this? Right to withdraw necessary treatment though. Also suicide itself is not criminalized. Main concern, capturing people that it doesn’t need to. Mclachlin challenges idea of “life being accepted as a PFJ”, ability to die with dignity. Understand value of life.

Arbitrary argument, purpose of law is not actually being promoted by how the law works. If the purpose is to protect sanctity of life, it actually might do the opposite, might not protect dignity of life, wouldn’t allow her to make a choice…is life worth living if she is in pain?

o Sopinka J held that liberty and security of the person had to be balanced against other principles. These had to be legal principles, not just a vague moral ideals. (This was part of the definition of “fundamental justice.”) In this case, he found that the purpose of s.241(b) was preserving the sanctity of life and protecting the vulnerable—which were both legal principles. He acknowledged that s.241(b) impinged on Rodriguez’s security of the person: This case confirmed that questions of bodily integrity were governed by “security of the person.” However, Sopinka J found that the law was not contrary to the principles of fundamental justice. He held that there was a meaningful distinction between assisted suicide and overdoses of painkillers in the guise of “palliative care” or natural death through refusal of treatment.

o McLachlin J, dissenting, argued parallel to the Morgentaler case, that s.241(b) deprived Rodriguez of security of the person, because it denied her the right to make decisions surrounding her own body. She held that this was not in accordance with the principles of fundamental justice. A law that is “arbitrary” or “unfair” cannot be in accordance with the principles of fundamental justice. In this case, physically disabled people were denied a choice that was available to others.

Canada (AG) v PHS Community Services Societyo What infringes the PFJ?

Arbitrariness – a law which is inconsistent with or bears no relation to its purpose

Overbreadth – does the law deprive s.7 rights more than is necessary? Grossly disproportionate – is the deprivation so extreme as to be per se

disproportionate to any government interest?o Is it legal to possess drugs? – Act says no, it is illegal UNLESS there is an exemption

either for a health care official or insiteo Administrators make a s.7 argument that the Controlled Drugs and Substances Act

was unconstitutionalo Also argue that ministers decision not to renew the exemption was unconstitutional o Turn to s.7 argument – how does making heroine illegal violate life, liberty or

security of the person? Because there is a possibility of imprisonment, impairs liberty right Also, its not a choice like govt argues, when you are addicted you can’t

control it – lose autonomy

48

Security right – because they are going to do it anyway, not giving them a safe option is impairing that right – law fails to protect their safety

o But court says this law does not necessarily have to have that impact – not going to strike down law as it has an important feature – possibility of exemption

Focus of inquiry became the state action under the law – government discretion in making the decision

Gov’t – court should not intervene as its governments right to make policy. Counter argument: Charter is applicable to government and legislatures –

minister action applies under government action No longer looking for a s.52 remedy (strike down), now looking for a s.24

remedy – court do something to remedy this actiono Is s.7 engaged by the minsters decision not to grant the exemption? Yes the liberty

of the staff is imperilled (they risk imprisonment) and the security of the clients is impaired as discussed above

o What is law’s objective? Public health and safety Purpose of exemption is the promotion of the safe use of narcotics

o The trial judge found that the clinic worked o Court said it is therefore arbitrary of the minister to not grant the exemptiono Failure to exempt was grossly disproportionate to condemning drug use vs saving

liveso So found action was not in conformity with PFJo So what is the appropriate remedy? – use s.24o Court ordered Minister to grant the exemption

 Section 7 Testo 1) Is there a prima facie violation of life, liberty or security of the person?o 2) Is the deprivation in accordance with the principles of fundamental justice?

What are the PFJ? Must be a legal principle Reasonable people must regard it as vital to our societal notion of

justice (social consensus) Capable of being identified with precision and applied in a manner

that yields predictable results (ie not unduly vague) Bedford v Canada

o S.210, 212, 213 of Criminal Code – regarding prostitutiono S.210 – bawdy houseso Challenge on s.7

Does it engage life, liberty, or security of person? Imprisonment – liberty is engaged Security – maybe law is intervening to make it more unsafe – might

be safer to have a bawdy-house rather than do it on the street PFJ infringed?

Gov’t’s objective o Maybe to protect women – prostitution is harmful to them o Also might be to protect neighbourhood – don’t want

bawdy-houses thereo Moral condemnation – but if its so abhorrent, why not

outlaw it? Argue it is arbitrary – they are more protected in a bawdy-house –

so goes against their objective Overbroad – could be legitimate that gov’t wanted to stop bawdy-

houses in certain neighbourhoods but it captures the “well-run” houses in appropriate neighbourhoods, or even the woman selling sex in her own home – captures more areas than the objective

49

ONCA also found it grossly disproportionate – selling sex inside is safer than selling it outside

o S.212 – living on the avails of prostitution This makes a legal practice less safe – can’t have someone else run the

bawdy-house for you – they help in protection, but can’t under this law Gov’t says it is to protect against pimping Court says its arbitrary – contrary to what they are trying to achieve –

making it more dangerouso S.213 – communicating for prostitution

ONCA upheld this law – legitimate objective of removing the nuisance of prostitution

Dissent: Same analysis as the other two – makes it less safe (hard to screen)

– so arbitrary againo Government granted a stay on the declaration of invalidity

Section 15Equality Rights

Section 15o 1) Every individual is equal before and under the law and has the right to the equal

protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability

o 2) Ss(1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national, or ethnic origin, colour, religion, sex, age or mental or physical disability

Andrews v Law Society of BCo Consideration must be given to the content of the law, its purposes and its impact

upon to whom it applieso 4 distinct features of equality – equality before and under the law, equal protection

and equal benefito BC says you have to be Canadian citizen to become a lawyero First question – does the Charter apply to actions of the law society?

Yes, implementing government programo Does s.15 include people who are non-citizens? (Says “every individual”)

Court says yes – what does every individual mean? In plain language, he is an individual, regardless of citizenship – should be interpreted in a purposive way – for the purpose of s.15 and the Charter itself – guarantee individual rights and freedoms

o Foundational s.15 case – template for s.15 o Not interested in equality in the abstract sense – just in matters of lawo Developed a substantive definition of equality – not enough that gov’t treats

everyone the same – sometimes neutral treatment can create inequalityo Only discriminatory will violate s.15 – relevant personal characteristicso Discrimination need not be intentional – can be the effects that violate s.15o Gives two part test

1. Does the law create a distinction? Based on an enumerated and analogous ground – characteristic that gov’t can’t discriminate against

2. Does that distinction create a disadvantage by perpetuating a stereotype?

Kappo Tries to integrate how s.15(1) and 15(2) work togethero Says that they have the same goal of promoting substantive equality

50

S.15(1) by attacking and preventing discriminatory gov’t action S.15(2) by shielding the gov’t from attack for positive action to enable

equality – enables gov’t to pro-actively combat discriminationo Substantive equality recognizes that all “human beings equally deserving of concern,

respect and consideration”o S.15(2) test

A program has an ameliorative or remedial purpose; and Targets a disadvantaged group identified by enumerated or analogous

groundso In this case, gov’t initiates program to allow aboriginals earlier access to fishingo Non-aboriginal fishers challenged it on s.15o Court says s.15(2) can shield these claims – does shield work?

Program with ameliorative purpose? Yes, trying to give economic advantage

Targeting a disadvantaged group? Yes, seems that way

o Does the program have to be successful? Court says that they don’t need to get into an analysis of the effects – this is

a purpose based approach Maybe a program won’t succeed in the short-term, but will in the long-term Give gov’t ability to experiment and try different things – don’t want to lose

protection of 15(2) just because it wasn’t immediately effectiveo Purpose does not need to be an exclusively ameliorative purpose – needs an

ameliorative purpose, but not solelyo The State of Law

1. Pre-existing Disadvantage 2. Relationship between grounds and the claimant’s characteristics or

circumstances 3. Ameliorative purpose or Effects 4. Nature of the Interest Affected

How deep is the impact that is being suffered by the affected group? Trivial or significant?

Court unified behind this new test Kapp said we don’t have to look at all these factors every time – drifts too

far away from Andrews Factors developed in Law may be helpful as part of the contextual analysis

S.15 testo 1) does the law create a distinction based on an enumerated or analogous ground?o 2) Does s.15(2) preclude the claim?

Does the program have an ameliorative or remedial purpose? Does the program target a disadvantaged individual or group?

o 3) Does the distinction perpetuate a disadvantage by prejudice or stereotyping? Withler

o Death benefits from the military – when you die, your beneficiary will get a lump sum payment if you are still employed by the forces

o Problem: Once you hit age 60, the lump sum begins to diminish every yearo Withler makes a s.15 argument

Does the law create a distinction? – Some people get paid more than others – based on age, which is an enumerated ground – satisfy step 1

Does 15(2) preclude the claim? – the disadvantaged group to target is the widows (gov’t argument) – Also argue that younger people don’t have pensions – Court doesn’t buy these

Does the distinction perpetuate a disadvantage? – older servants do not get as much as younger servants

51

o There is only one question in s.15 cases: “Does the challenged law violate the norm of substantive equality?”

o Unpacking discrimination: how do claimants prove prejudice and stereotyping?

S.15(1) claimant must prove that the law either Perpetuates Prejudice and Disadvantage

o “When the law treats a historically disadvantaged group in a way that exacerbates the situation of the group”; or

Stereotypeso When the law employs assumptions that do “not

correspond to the actual circumstances and characteristics of the claimant or claimant group.” – including where no previous history of disadvantage

o “The analysis is contextual, not formalistic…” (para 37)o Withler can make argument that stereotype is spouses of older people need less

money – not true to the actual circumstances of the individuals – also prejudice premised that older people are less worthy of entitlement – they are going to die sooner anyway

o But need to take all factors into consideration – older people have pension to help supplement – gov’t can discriminate on age if it is reasonable

o Have to look at purpose and aim of legislation in context to see if it is discriminatory

o Court says that when you prove there is a distinction in step 1, important you point to the comparator group to help prove it – but in step 3 don’t have to use a strict comparator group

Eldridgeo Does the Charter apply to the hospital even though not controlled by gov’t? Yes,

because they were implementing a gov’t program – delivery of health care – so charter applies to the extent of that program

o 1. Distinction? Main group of people can communicate with their medical providers, but

the deaf people cannot – adverse effects discrimination – facially neutral In deaf person’s case, need an interpreter Gov’t says no distinction is made – court says the effects of the law have a

disadvantage on a group, and could be enough to trigger s.15o 2. Does this distinction discriminate?

Yes – treats a historically disadvantaged group in a way that exacerbates the disadvantage – history of exclusion of deaf people – by not paying for interpreter, continuing stereotype that they are lesser people that do not need to be accommodated – continues the exclusion

Also, expecting them to bear cost for the interpreter is another stereotype – they should have to bear it and not society

Also, by not being able to communicate, not being able to access core feature of legislation

o S.1? Gov’t says it is too expensive – evidence did not agree with this Not rationally connected – went against core of legislation

o Adverse effects discrimination – facially neutral, but have effects that are discriminatory

o Not only intentional discrimination that runs afoul of s.15, but unintended as well

o Concern that intention creeps back in in stage 2 – stereotyping/prejudice Corbiere

52

o What is an analogous ground?o Legislation says to vote in a band election, have to live on a reserve o Distinction?

Yes – people on reserve vs people offo Is this an analogous or enumerated ground?

Basis of distinction is whether they live on or off the reserve – analogous ground?

Enumerated grounds are race, religion, nationality, gender, disability – suspect markers of legislation because there is history of discrimination on these bases – so should ask same thing of analogous grounds – (1) personal markers that have often served the grounds for stereotypes and (2) personal characteristics that are immutable or changeable only at excessive personal costs (constructively immutable) – eg. Changing religion – in theory can change, but not really practical

Once identified as an analogous ground, always an analogous ground – doesn’t mean any distinction will violate s.15 – still needs to be discriminatory

Court says this is an analogous ground – stereotypes those who live off reserve as “less Indian” and is constructively immutable – can be changed, but only at a high cost

Other analogous grounds added to s.15 – Sexual orientation, citizenship, family status Poverty and provincial residence have not been found to be analogous grounds M v H

o Focused on remedy – reading in isn’t always the best remedy – affects whole act – so suspend striking down

o Does the exclusion of same-sex spouses violate s.15? Court said yeso If common law relationship breaks up, you can claim spousal support if hetero, but

not if in homosexualo Sexual orientation was an analogous ground – but was it discriminatory?o Did it perpetuate disadvantage? Stereotype? Prejudice?

Maybe stereotype is they don’t need access to spousal support Their relationships are not as worthy of equal respect and consideration as

heterosexual couples Gosselin

o Under 30 got less benefits – could get more if they were involved in work programs and training

o Distinction based on ageo Is it discriminatory?

Stereotype that if you are under 30 more likely to be able to change your situation – less deserving of help – perpetuation of stereotype that they are lazy

o Court disagreed – look at purpose of the law – in this case, not discriminatory – this was not a denial of young people’s dignity, it was affirmation of their potential – it was good for under 30 – if it is good for you, then how can it be discriminatory to you?

o Case has been heavily criticized Children’s Foundation

o S.43 discriminatory against kids – what would be an assault on an adult is oko Distinction based on ageo Discrimination – because they are young they are not worthy of protection of code –

also stereotype that only respond to physical force – stereotype that parents know best instead of themselves – perpetuates vulnerability of children – history of child abuse

53

o Court saves s.15 – reads in restrictions – reasonable force and no use of implementso Not discriminatory – if it was otherwise, parents taken away from kids – bad for

families (protection of families)

54