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CONSTITUTIONAL LAW
BASIC CONCEPTS
[1] SOURCES AND NATURE OF THE CONSTITUTION Constitution Act, 1867 - The British North America Act was renamed the Constitution Act, 1867, in 1982 - Established the rules of Federalism, but did not attempt to codify all constitutional rules. Left open possibility for constitutional conventions. - There are several gaps in this Act, however Constitution Act, 1982 - This Act did 3 main things to Canadas constitutional law: (1) An amending formula was adopted; (2) The authority over Canada of the UK (imperial) Parliament was terminated; (3) and the Charter was adopted - The phrase Constitution of Canada was used for the first time in this Act - The definition of the Constitution of Canada includes 3 categories of instruments (1) Canada Act 1982 (which includes the Constitution Act, 1982); (2) A list of 30 Acts and orders (including the Constitution Act, 1867); (3) Amendments which may be made. The Charter of rights and Freedoms is part of the Constitution of Canada because it is Part I of the Constitution Act, 1982 - The supremacy clause is also found in this act: s 52(1) Parliamentary privilege - The federal Houses of Parliament and the provincial legislative assemblies possess a set of powers and privileges that are necessary to their capacity to function as legislative bodies; these powers and rights are known collectively as parliamentary privilege (e.g. freedom of speech in debate) - See discussion in Canada v Vaid - Source = part of Constitution of Canada (New Brunswick v Canada); but Hogg criticizes this a bit Case law - Another important source of constitutional law (e.g. unwritten principles developed in case law: see Rumeration of Judges; Secession Reference) - SCC has carved out an active and creative role in interpreting the Constitution. This raises the concern that the Court is trespassing into fields more properly left to the legislative and executive branches of government

Royal prerogative - Consists of the powers and privileges accorded by the common law to the Crown; it is a branch of common law, because it is the decisions of the courts which have determined its existence and extent Conventions - Conventions are rules of the constitution that are not enforced by courts. Because they are not enforced as such, they are best regarded as non-legal rules, but because they do regulate the working of the constitution, they are important to know - Conventions prescribe the way in which legal powers should be exercised. Their breach, however, does not give rise to legal remedies. - An important conventions case is the Patriation Reference (see the discussion in the book) Reference re Secession of Quebec Background This Reference requires consideration of complex legal and constitutional questions, and it isnt possible to answer the questions without having regard to a number of underlying principles The Constitution Act, 1982 is now in force. Although the Constitutional texts have a primary place in determining constitutional rules, they are NOT exhaustive. The Constitution also embraces UNWRITTEN rules These supporting principles and rules, which include constitutional conventions and the workings of Parliament, are a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive legal framework for our system of government. Such principles and rules emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning. There are FOUR fundamental and organizing principles of the Constitution which are relevant to addressing the question before us (although this enumeration is by no means exhaustive): federalism; democracy; constitutionalism and the rule of law; and respect for minorities Nature of principles These principles inform and sustain the constitutional text; they are the vital unstated assumptions upon which the text is based. The following discussion addresses the four foundational constitutional principles that are most germane for resolution of this Reference: federalism, democracy, constitutionalism and the rule of law, and respect for minority rights. These defining principles function in symbiosis. No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other.

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] province. The federal structure adopted at Confederation enabled French-speaking Canadians to form a numerical majority in the province of Quebec, and so exercise the considerable provincial powers conferred by the Constitution Act, 1867 in such a way as to promote their language and culture. It also made provision for certain guaranteed representation within the federal Parliament itself (2) Democracy The principle of democracy has always informed the design of our constitutional structure, and continues to act as an essential interpretive consideration to this day. The democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated. It is perhaps for this reason that the principle was not explicitly identified in the text of the Constitution Act, 1867 itself Democracy is commonly understood as being a political system of majority rule. Democracy encompasses a number of values, including: respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. In institutional terms, democracy means that each of the provincial legislatures and the federal Parliament is elected by popular franchise. In individual terms, the right to vote in elections to the House of Commons and the provincial legislatures, and to be candidates in those elections, is guaranteed to "Every citizen of Canada" by virtue of s. 3 of the Charter. The relationship between democracy and federalism means, for example, that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level. No one majority is more or less "legitimate" than the others as an expression of democratic opinion, although, of course, the consequences will vary with the subject matter Democracy in any real sense of the word cannot exist without the rule of law. It is the law that creates the framework within which the "sovereign will" is to be ascertained and implemented. To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation (3) Constitutionalism and the Rule of Law The 'rule of law' is a highly textured expression, importing many things which are beyond the need of these reasons to explore but conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority". At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.

Use of unwritten principles The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a "living tree", to invoke the famous description in Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136 The effect of the preamble to the Constitution Act, 1867 was to incorporate certain constitutional principles by reference In the Provincial Judges Reference, we determined that the preamble "invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text" Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (i.e they have "full legal force", as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. So, the principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments In other words", as this Court confirmed in the Manitoba Language Rights Reference, "in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada" (1) Federalism It is undisputed that Canada is a federal state. In a federal system of government such as ours, political power is shared by two orders of government: the federal government on the one hand, and the provinces on the other. Each is assigned respective spheres of jurisdiction by the Constitution Act, 1867. In interpreting our Constitution, the courts have always been concerned with the federalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been the lodestar by which the courts have been guided. This underlying principle of federalism, then, has exercised a role of considerable importance in the interpretation of the written provisions of our Constitution. In the Patriation Reference, supra, at pp. 905-9, we confirmed that the principle of federalism runs through the political and legal systems of Canada. The principle of federalism recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] 3 Elements of Rule of Law: i) One law for all; ii) there is an actual order of positive laws that preserves and embodies the normative order; iii) the relationship b/w the state and the individual must be regulated through a series of legal rules. Importance of Rule of Law cannot be overemphasized; this principle is the key to understanding the legal framework of the State. This is the fundamental principle of legality; the ultimate foundation of the Constitution. Constism is simply that the govt must comply with the Constitution (4) Protection of Minorities: There are a number of specific constitutional provisions protecting minority language, religion and education rights. Undoubtedly, the three other constitutional principles inform the scope and operation of the specific provisions that protect the rights of minorities. The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities. COMMENT: These principles are: not exhaustive (complete, thorough); must be taken together; no single principle trumps another. [2] AMENDING PROCEDURES AND SECESSION - See Constitution Act, 1982, Part V, ss 38-49 (these provisions override the Supreme Courts ruling in Patriation Reference) Federal parliament alone (s 44): Federal Parliament, by ordinary legislation, can amend parts of the Constitution of Canada which relate to the Executive government of Canada or the Senate and House of Commons Provincial legislature alone (s 45): Each provincial Legislature authorized, by ordinary legislation, to amend the constitution of the province. That term isnt defined, but has been interpreted to include amending law that bears on the operation of an organ of government of the province. Secession Reference re Secession of Quebec Operation of Constitutional Principles in the Secession Context The secession of a province from Canada must be considered, in legal terms, to require an amendment to the Constitution. The amendments necessary to achieve a secession could be radical and extensive. But the democratic principles identified above would demand that considerable weight be given to a clear expression by the people of Quebec of their will to secede from Canada, even though a referendum, in itself and without more, has no direct legal effect, and could not in itself bring about unilateral secession the secession of a province would have to occur by way of an amendment to the Constitution; it would be these negotiations that would help develop the appropriate amendment The federalism principle, in conjunction with the democratic principle, dictates that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire. The rights of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others The conduct of the parties in such negotiations would be governed by the same constitutional principles which give rise to the duty to negotiate: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities Negotiations would be political issues. But the non-justiciability of political issues that lack a legal component does not deprive the surrounding constitutional framework of its binding status, nor does this mean that constitutional obligations could be breached without incurring serious legal repercussions. To the extent that a breach of the constitutional duty to negotiate in accordance with the principles described above undermines the legitimacy of a party's actions, it may have important ramifications at the international level The secession of Quebec from Canada cannot be accomplished by the National Assembly, the legislature or government of Quebec unilaterally, that is to say, without principled negotiations, and be considered a lawful act

Part V of Constitution Act, 1982: General amending procedure (s 38) (50-70 formulae): Applies when the other, more specific, procedure dont apply, and for those matters listed in s 42 (s 42 requires that the general amending procedure be used for six defined classes of amendments to the Constitution). Requires amendment to be authorized by resolutions by both Houses of Federal Parliament, and resolutions of the legislative assemblies of at least 2/3 of provinces, provided they represent at least 50 % of population. See time limits (s 39(1) and (2), and opting out provision (s 38(3)). Unanimity procedure (s 41): List of matters whose alteration in the Constitution requires agreement by all provinces Some-but-not-all-provinces procedure (s 43): There are provisions of the Constitution of Canada which apply to one or more, but not all provinces. For amendments of this kind, s 43 requires authorizing resolutions of only those provinces to which the amendment applies

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] Any attempt to effect the secession of a province from Canada must be undertaken pursuant to the Constitution of Canada, or else violate the Canadian legal order. However, the continued existence and operation of the Canadian constitutional order cannot remain unaffected by the unambiguous expression of a clear majority of Quebecers that they no longer wish to remain in Canada - Courts often have to enforce distribution of powers rules (the rules of federalism): the courts have to determine whether a particular statute comes within the powers conferred by the Constitution on the legislative body that enacted the Statute - A second function of judicial review is to enforce the Charter restrictions and the other non-federal restrictions

[3]

FEDERALISM

Federalism - In a federal state, governmental power is distributed between a central authority and several regional authorities, in such a way that every individual in the state is subject to the laws of the two authorities - The central and regional authorities are coordinate i.e. neither is subordinate to the other Confederation - In Canada, contrary to usage of the word confederation outside Canada, a central government was established which was in no sense the delegate of the provinces. It was independent of the provinces and coordinate with them Special status - Special status is the term which has applied to proposals for constitutional change under which one province would possess large powers than the other provinces. Although a number of provisions in the Constitution apply to one province or some, it cannot be said that there is a special status for any province Supremacy of the Constitution - s 52(1) of the Constitution Act, 1982 expressly affirms the supremacy of the Constitution over all other laws Role of the courts - The provisions of the Constitution distributing legislative power are couched in general language, not free of ambiguity. Any federal system therefore has to have machinery for settling disputes about the distribution of legislative power - S 52(1) states that the Constitution is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. This section is the basis for judicial review in Canada

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] [1] PRINCIPLES OF INTERPRETATION

- It is the distribution of powers b/w a central authority (federal Parliament) and regional authorities (provincial legislatures) that constitutes the essence of federalism. - The Constitution defines the kinds of laws that may be enacted by federal Parliament and provincial Legislatures - This part examines the techniques, language and doctrines applied by courts in carrying the review of distribution of powers questions (i.e. challenges on federal grounds) - The distribution of legislative power b/w the federal Parliament and the provincial Legislatures is mainly set out in ss 91 and 92 of the Constitution Act, 1867 Priority between federal and Charter grounds - Federal arguments should precede Charter ones. And if you are arguing both, you should frame the Charter argument as one in the alternative Process/reasoning in judicial review - Two steps are involved: STEP 1: the characterization of the challenged law STEP 2: the interpretation of the power-distributing provisions of the Constitution STEP 1: Characterization of laws (a) Matter and the pith and substance doctrine - The first step is to identify the matter of the challenged law, i.e., identify the dominant or most important characteristic of the challenged law (the pith and substance). - Court will look beyond the direct legal effects to inquire into, for example, the social or economic purposes which the statute was enacted to achieve. If the Court concludes that the purpose of, for e.g., an ostensible tax is to regulate or destroy the banks, then the law will be characterized as being in relation to banking and will be held to be invalid if it was enacted by a province - Difficulty is where statute has features which come within a provincial AND federal head of power. Here, you make a judgment as to which is the most important feature of the law and characterize the law by that feature (the dominant feature is the pith and substance or matter of the law; the other feature is merely incidental). - This distinction is commonly expressed by using the phrase in relation to. I.e. the impugned act was in relation to X and merely affected Y. - Essentially, 2 things must be examined: the purpose of the enacting body, and the legal effect of the law (Reference re Firearms Act) (see below) (b) Singling out - The singling out of undertakings is not conclusive of pith and substance

DISTRIBUTION OF POWERS

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - E.g. A taxing statute, although it applied to other corporations as well as banks, did impose a special tax rate on banks alone; yet, the law was characterized as in relation to taxation, not banking (Bank of Toronto v Lambe) (c) Double aspect *** - A law that may be enacted by either Parliament or a provincial legislature is what the double aspect doctrine refers to; laws prescribing rules of conduct on the roads have a double aspect, and are therefore competent to both the Parliament and a Legislature. Securities regulation is another field where some laws have a double aspect - When do you apply this doctrine? Courts are not clear about this. But one dude says that it is applicable when the contrast between the relative importance of the two features is not so sharp. When the court finds that the federal and provincial characteristics of a law are roughly equal in importance, then the conclusion is that laws of that kind may be enacted by either Parliament or a Legislature (d) Purpose *** - Legislative purpose in characterizing the matter of a ostensible law is important - As part of the first step in the division of powers analysis, you consider the purpose of the law - E.g. In Big M and Edwards Books, the prohibition of work on Sunday fell within federal or provincial competence depending upon whether the purpose of the prohibition was religious or secular - To determine the purpose, look to: (i) The preamble (ii) Intention of the legislative body that drafted the statute (iii) The mischief that the law is trying to rid - But must look to true purpose, not necessarily the stated purpose (Canadian Western Bank) (e) Effect *** - In characterizing a statute (i.e. identifying its matter of pith and substance), a court must consider the effect of the statute, in the sense that the court will consider how the statute changes the rights and liabilities of those who are subject to it (f) Efficacy - Courts are not allowed to judge the efficacy of a statute (g) Colourability *** - Form is not controlling in the determination of essential character - E.g. in Alberta Bank Taxation Reference, the legislation, although ostensibly designed as a taxation measure, was in reality directed at banking Federally regulated undertakings - Only if a core competence/vital/essential part of a federal undertaking is impaired by a provincial law could the provincial law be said to be inapplicable. If the core competence or vital part is merely affected (without any adverse consequence) - E.g. attempts by the federal Parliament to regulate insurance by incorporating provisions into the Criminal Code have been struck down as colourable - The colourability doctrine applies the maxim that a legislative body cannot do indirectly what it cannot do directly - So, an examination of the actual effect is useful in determining if the law was "colourable". That is, whether the law, in substance, addresses a matter completely different from what the law addresses in form. For example, in R. v. Morgentaler the province of Nova Scotia passed a law prohibiting abortion clinics under the guise that it was protecting health services (hospitals 92.7 and property and civil rights 92.16), when in substance they were attempting to ban abortions (criminal federal power). (h) Criteria of choice - When you have several possible dominant purposes (i.e. matter), how to choose which is the pith and substance? - Can look at (i) legislative scheme/relevant extrinsic material; (ii) judicial decisions on similar kinds of statutes; (iii) policy - Policy: THE CHOICE MUST BE GUIDED BY A CONCEPT OF FEDERALISM is this the kind of law that should be enacted at the federal level or provincial level? - Judicial restraint must be invoked Reading Down - Whenever possible, a statute is to be interpreted as being within the power of the enacting legislative body Interjurisdictional immunity - Another way (alternative to the pith and substance way) of attacking a law is by characterizing the law as coming within a class of subjects that is outside the jurisdiction of the enacting legislative body, and to argue that the law should be INTERPRETED (i.e. read down) so as not to apply to the matter that is outside the jurisdiction of the enacting body. If this argument succeeds, the law isnt invalid, but its simply INAPPLICABLE to the extra-jurisdictional matter - Although the doctrine is in principle applicable to all federal and provincial heads of legislative authority, the case law demonstrates that its natural area of operation is in relation to those heads of legislative authority that confer on Parliament power over enumerated federal things, people, works or undertakings

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] by a provincial law, no immunity applied, whether the affect is direct or indirect (Canadian Western Bank v Alberta) [This is the newest test] Distinguish between pith and substance analysis and interjurisdicitonal immunity - The latter is used sparingly by courts; should normally rely on pith and substance analysis STEP 2: Interpretation of the Constitution Relevance - Once the matter (or pith and substance) of a challenged law has been identified, the second stage in judicial review is to assign the matter to one of the classes of subjects (or heads of legislative power) specified in the Constitution. - There are certain general principles that cut across all heads of power and will be discussed here Exclusiveness - The lists in ss 91 and 92 are mutually exclusive (but, still, laws may have a double aspect ie. two matters) Ancillary power *** - IF ONLY A CERTAIN PROVISION OF A LARGER STATUTORY SCHEME IS BEING CHALLENGED (AS IN THE GENERAL MOTORS CASE AND THE VALIDITY OF S 31.1) YOU NEED TO LOOK AT THE ANCILLARY DOCTRINE). If the larger legislative scheme is valid, then the impugned provision may also be found to be valid because of its relationship to the larger scheme by way of this doctrine - TEST: Measure the degree of encroachment of the impugned provision on the other governments sphere of power (the more significant the encroachment, the more strict the test is), and then must determine how necessary the impugned provision is to the otherwise valid legislative scheme: (i) For MINOR encroachments, the rational connection test is appropriate (ii) For MAJOR encroachments, a stricter test (truly necessary) is appropriate (General Motors case) - E.g. In General Motors, the impugned law was the civil remedy in the federal competition statute. This law did intrude into provincial power over property and civil rights, but only in a limited way. Therefore, it was sufficient to test the validity of the law by the rational connection test. The rational connection to the legislative scheme was that the civil remedy, by providing a means and an incentive to private enforcement, would improve the efficacy of the competition law Canadian Western Bank v Alberta FACTS: Provincial statute enacted to enforce laws on federally chartered banks who sell credit-related insurance to customers. Upon the coming into force of the Insurance Act, the appellant banks sought a declaration that their promotion of insurance is banking under s. 91(15) of the Constitution Act, 1867 and that the Insurance Act and its associated regulations are constitutionally inapplicable and/or inoperative to the banks promotion of insurance. ISSUE: The question that arises on this appeal is the extent to which banks, as federally regulated financial institutions, must comply with provincial laws regulating the promotion and sale of insurance. REASONING: Federalism It is beyond question that federalism has been a fundamental guiding principle of our constitutional order since the time of Confederation Each head of power was assigned to the level of government best placed to exercise the power Constitutional doctrines permit an appropriate balance to be struck in the recognition and management of the inevitable overlaps in rules made at the two levels of legislative power, while recognizing the need to preserve sufficient predictability in the operation of the division of powers Constitutional Doctrines Pith and substance doctrine: The resolution of a case involving the constitutionality of legislation in relation to the division of powers must begin with an analysis of the pith and substance of the impugned legislation. The analysis may concern the legislation as a whole, or only certain provisions. The courts must be able from its language and its relevant circumstances, to attribute an enactment to a matter in relation to which the legislature acting has been empowered to make laws. The corollary to this analysis is that legislation whose pith and substance falls within the jurisdiction of the legislature that enacted it may, at least to a certain extent, affect matters beyond the legislatures jurisdiction without necessarily being unconstitutional. At this stage of the analysis, the dominant purpose of the legislation is still decisive. Merely incidental effects will not disturb the constitutionality of an otherwise intra vires law. To determine the pith and substance, two aspects of the law must be examined: (1) The PURPOSE of the enacting body: Can look to intrinsic evidence (e.g. preamble/purpose clauses, and extrinsic evidence). Must look to TRUE PURPOSE though, not necessarily the stated purpose (2) The LEGAL EFFECT of the law: E.g., in Attorney-General for Alberta v. Attorney-General for Canada, [1939] A.C. 117 (Alberta Banks), the Privy Council held a provincial statute levying a tax on banks to be invalid on the basis that its effects on banks were so great that its true purpose could not be (as the province argued) the raising of money by levying a tax (in which case it would have been intra vires), but was rather the regulation of banking (which rendered it ultra vires, and thus invalid)

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] Here, the pith and substance of the Alberta Insurance Act relates to property and civil rights in the province under s. 92(13) of the Constitution Act, 1867, and is a valid provincial law. The mere fact that the banks now participate in the promotion of insurance does not change the essential nature of the insurance activity, which remains a matter generally falling within provincial jurisdiction The double aspect doctrine: The double aspect doctrine applies within the course of the pith and substance analysis. 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. A classic example is that of dangerous driving: Parliament may make laws in relation to the public order aspect, and provincial legislatures in relation to its Property and Civil Rights in the Province aspect That being said, it must also be acknowledged that, in certain circumstances, the powers of one level of government must be protected against intrusions, even incidental ones, by the other level. For this purpose, the courts have developed two doctrines. The first, the doctrine of interjurisdictional immunity, recognizes that our Constitution is based on an allocation of exclusive powers to both levels of government, not concurrent powers, although these powers are bound to interact in the realities of the life of our Constitution. The second, the doctrine of federal paramountcy, recognizes that where laws of the federal and provincial levels come into conflict, there must be a rule to resolve the impasse Interjurisdictional Immunity doctrine: - Despite the efforts to find a proper role for the doctrine, the application of interjurisdictional immunity has given rise to concerns by reason of its potential impact on Canadian constitutional arrangements - Broadly speaking, the doctrine of interjurisdictional immunity was used to protect that which makes certain works or undertakings, things (e.g., Aboriginal lands) or persons (e.g., Aboriginal peoples and corporations created by the federal Crown) specifically of federal jurisdiction - However, a view of federalism that puts greater emphasis on the legitimate interplay between federal and provincial powers was championed by the late Chief Justice Dickson, who described the doctrine of interjurisdictional immunity as not . . . particularly compelling. In our view, the sweeping immunity argued for by the banks in this appeal is not acceptable in the Canadian federal structure. - While the text and logic of our federal structure justifies the application of interjurisdictional immunity to certain federal activities, nevertheless, a broad application of the doctrine to activities creates practical problems of application much greater than in the case of works or undertakings, things or persons, whose limits are more readily defined (The Court goes on to identify a number of problems with invoking the doctrine). Also, a broad use of the doctrine would be inconsistent with the flexible federalism that the constitutional doctrines of pith and substance, double aspect and federal paramountcy are designed to promote. It is these doctrines that have proved to be most consistent with contemporary views of Canadian federalism, which recognize that overlapping powers are unavoidable - Further, a broad use of the doctrine of interjurisdictional immunity runs the risk of creating an unintentional centralizing tendency in constitutional interpretation. As stated, this doctrine has in the past most often protected federal heads of power from incidental intrusion by provincial legislatures. The asymmetrical application of interjurisdictional immunity is incompatible with the flexibility and co-ordination required by contemporary Canadian federalism - Although the doctrine of interjurisdictional immunity has a proper part to play in appropriate circumstances, we intend now to make it clear that the Court does not favour an intensive reliance on the doctrine, nor should we accept the invitation of the appellants to turn it into a doctrine of first recourse in a division of powers dispute - Interjurisdictional immunity should in general be reserved for situations already covered by precedent. This means, in practice, that it will be largely reserved for those heads of power that deal with federal things, persons or undertakings, or where in the past its application has been considered absolutely indispensable or necessary to enable Parliament or a provincial legislature to achieve the purpose for which exclusive legislative jurisdiction was conferred, as discerned from the constitutional division of powers as a whole, or what is absolutely indispensable or necessary to enable an undertaking to carry out its mandate in what makes it specifically of federal (or provincial) jurisdiction. - Court restricts the operation of the doctrine when it IS applied: The provincial legislation must IMPAIR a VITAL/ESSENTIAL aspect of the federal subject or undertaking (i.e. must result in adverse consequences). - Not only should the doctrine of interjurisdictional immunity be applied with restraint, but with rare exceptions it has been so applied. Although the doctrine is in principle applicable to all federal and provincial heads of legislative authority, the case law demonstrates that its natural area of operation is in relation to those heads of legislative authority that confer on Parliament power over enumerated federal things, people, works or undertakings. In most cases, a pith and substance analysis and the application of the doctrine of paramountcy have resolved difficulties in a satisfactory manner The Doctrine of Federal Paramountcy: The doctrine of federal paramountcy is also inapplicable because neither operational incompatibility nor the frustration of a federal purpose have been made out. Since 2000, the banks have been promoting insurance in Alberta while complying with both the federal Bank Act and the provincial Insurance Act. This is not a case where the provincial law prohibits what the federal law permits. The federal legislation is permissive not exhaustive, and compliance by the banks with the provincial law complements, not frustrates, the federal purpose HELD: (1) The provincial law was valid under property and civil rights; (2) The claim to interjurisdictional immunity should be rejected (credit related insurance is not a vital or essential element of the banking undertaking); (3) Federal paramountcy does not apply on the facts of this case

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] FACTS: The respondent company sought a declaration that s. 6 of the Saskatchewan Tobacco Control Act is, by virtue of the paramountcy doctrine, inoperative in light of s. 30 of the federal Tobacco Act. Section 30 allows retailers to display tobacco and tobacco product-related brand elements and post signs indicating the availability and price of tobacco products, while s. 6 bans all advertising, display and promotion of tobacco or tobacco-related products in any premises in which persons under 18 years of age are permitted. The Court of Queens Bench dismissed the companys application. The Court of Appeal set aside that decision and declared s. 6 inoperative on the basis of a practical inconsistency between the two provisions. ISSUE: Whether s. 6 of The Tobacco Control Act is sufficiently inconsistent with s. 30 of the Tobacco Act so as to be rendered inoperative through the paramountcy doctrine, two questions arise. First, can a person simultaneously comply with s. 6 of The Tobacco Control Act and s. 30 of the Tobacco Act? Second, does s. 6 of The Tobacco Control Act frustrate Parliaments purpose in enacting s. 30 of the Tobacco Act? REASONING: The doctrine of federal paramountcy dictates that where there is an inconsistency b/w validly enacted but overlapping provincial and federal legislation, the provincial legislation is inoperative to the extent of the inconsistency Provincial legislation that displaces or frustrates Parliaments legislative purpose is also inconsistent for the purposes of the doctrine Parliament did not grant retails a positive entitlement to display tobacco products: as the Act was enacted under the criminal power, and since the criminal law power is prohibitory in nature, provisions enacted pursuant to it do not ordinarily create freestanding rights. Second, it is difficult to imagine how granting retailers a freestanding right to display tobacco products would assist Parliament in providing a legislative response to a national public health problem of substantial and pressing concern It is plain that dual compliance is possible in this case. A retailer can easily comply with both s. 30 of the Tobacco Act and s. 6 of The Tobacco Control Act in one of two ways: by admitting no one under 18 years of age on to the premises or by not displaying tobacco or tobacco-related products. Section 6 of the Tobacco Control Act does NOT frustrate the legislative purpose underlying s 30 of the federal Act. Both the general purpose of the Tobacco Act (to address a national public health problem) and the specific purpose of s. 30 (to circumscribe the Tobacco Acts general prohibition on promotion of tobacco products set out in s. 19) remain fulfilled HELD: The doctrine of paramountcy does not apply

[2]

PARAMOUNTCY

- The doctrine of federal paramountcy says that: where there are inconsistent or conflicting federal and provincial laws, it is the federal law which prevails to the extent of the inconsistency - The doctrine applies ONLY IF the Federal law and provincial law are independently valid (i.e., must pass the pith and substance test first) Definition of inconsistency (a) Express contradiction - Arises where it is impossible to obey both the federal and provincial law - In Rothmans, Benson & Hedges Inc no conflict b/c possible to comply with both by following the provincial legislation (b) Frustration of federal purpose - Where there are overlapping federal and provincial laws, and it is possible to comply with both laws, but the effect of the provincial law would be to frustrate the purpose of the federal law, another case of inconsistency arises - See Rothmans, Benson & Hedges Inc (tobacco advertising case) Negative implication (a) Covering the field: - In US and OZ, for example, courts have accepted a negative implication test for inconsistency: a federal law may be interpreted as covering the field and precluding any provincial laws in that field, even if they are not contradictory of the federal. In Canada, this has been rejected (OGrady v Sparling) (b) Express extension of paramountcy: - Can, for example, Parliament extend the doctrine of paramountcty beyond the case of an actual conflict in operation? Yes. Overlap and duplication - Duplication is NOT a test of inconsistency (Multiple Access case)

Effect of inconsistency - Once it has been determined that a federal law is inconsistent with a provincial law, the doctrine of federal paramountcy stipulates that the provincial law must yield to the federal law. - The most accurate way to describe this is to say that the provincial law is rendered inoperative to the extent of the inconsistency Rothmans, Benson & Hedges Inc v Saskatchewan

[3]

PROPERTY AND CIVIL RIGHTS: s 92(13), Constitution Act, 1867

Background - W/in provincial jurisdiction - By far the most important head of provincial power.

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - Most of the major constitutional cases have turned on the competition between one or more of the federal heads of power, on the one hand, and property and civil rights, on the other - Encompasses most of the legal relationships between persons in Canada. The law relating to property, succession, the family, contracts, labour relations and torts is mainly w/in the provincial jurisdiction under s 92(13). But a lot of public law has also been swept under this rubric - Distinguish b/w civil rights and liberties, as they are different Professions and trades - Regulations of professions and trades typically take the form of restrictions on entry, coupled with rules of conduct, which include fee-setting, and administration by a governing body; this falls within s 92(13) (Krieger) Labour relations Provincial power - Generally falls within property and civil rights (Toronto Electric leading case) - Industrial peace (e.g. strikes, lockouts) falls w/in property and civil rights (Toronto Electric) - Labour standards legislation property and civil rights (Labour Conventions) - Other decisions, such as Unemployment Insurance Reference and Oil, Chemical Workers, insist that the modification of the employment relationship is exclusively w/in property and civil rights, notwithstanding the important federal aspects presented by the relief of nation-wide unemployment Federal power - However, theres still a substantial federal presence in the field. - They regulate labour relations in industries which are part of a federal undertaking (whether in the private or public sector) (see Stevedores Reference dock loaders = necessary for navigation and shipping). - The required connection with the federal undertaking is a functional or operational one (e.g. the fact that the employer is an interprovincial railway will not sweep a group of e/ees into federal jurisdiction, if they operate a hotel which is functionally separate from the railway). - Still, provincial competence is the RULE, and federal competence is the exception in the context of regulating labour relations Marketing/Regulating production and trade - Early attempts by Federal Parliament to enact marketing schemes under the trade and commerce power were struck down by the Privy Council; started w/ assumption that ANY interference w/ contracts was a matter w/in property and civil rights. - But the Supreme Court has interpreted trade and commerce more liberally in recent times. NO DOUBT that provinces can regulate INTRAprovincial trade (because that deals largely with contracts etc), although they lack the power to regulate INTERprovincial trade. - But marketing has interprovincial effects (on consumers): so to what extent should a province be permitted to burden interprovincial trade in the course of regulating intraprovincial trade? (i) Shannon v Lower Mainland Dairy: Provincial scheme for compulsory marketing of milk upheld and applied to milk sold in province, including milk made OUTSIDE province. That decision was followed by Carnation Co v Quebec, which decided that, if the marketing law merely AFFECTS

Insurance Provincial power - Earliest decision involved an Ontario statute required that certain conditions be included in every policy of fire insurance entered into in Ontario; it was held that the regulation of the terms of the contracts came within property and civil rights, and not trade and commerce (Citizens Insurance v Parsons) - The regulation of a particular industry comes within property and civil rights in the province, even when the industry and particular firms extended beyond the boundaries of any one province (Insurance Reference; Parsons) Federal power - But the Fed government continues to regulate a substantial part of the insurance industry under statutes covering British and foreign companies, federally incorporated companies, and, on a voluntary basis, provincially incorporated companies. These statutes preambles indicate that the powers over trade and commerce, aliens and insolvency are relied upon as supporting their constitutionality - E.g. A federal law applicable to insolvent insurance companies was upheld (Wentworth Insurance) Business in general - The insurance cases discussed suggest that the regulation of business was ordinarily a matter w/in property and civil rights in the province. But there are a number of exceptions, which fall within the federal power (e.g. some industries have been held to fall within the federal jurisdiction under the peace, order and good government power, namely aeronautics and the production of atomic energy) - The point is that the regulation of an industry, or the more general regulation of prices or profits or combinations, has traditionally been regarded by the courts, not in terms of its ultimate, often nation-wide objectives, but in terms of its immediate impact upon freedom of contract and proprietary rights in these terms, restraints on business fall into the category of property and civil rights in the province

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] interprovincial trade, that doesnt mean the law is invalid (in this case, in fact, Carnation shipped the bulk of its product outside the province, and the SCC nevertheless held that the marketing law was in relation to intraproviincial trade) (iii) Manitoba Egg Reference: SCC struck down a provincial scheme to regulate the marketing of eggs. The scheme applied to all eggs sold in Man., including eggs produced elsewhere. Court said that statute regulated marketing and not only affected interprovincial trade, but it AIMED at regulating such trade, and so it was invalid as an attempt to regulate such trade [Hogg thinks this is an odd case, and difficult to see why it didnt follow Shannon] (iv) Re Agricultural Products: Upheld scheme regulating national marketing of eggs (which included federal and provincial acts). SCC upheld the scheme, and held that the provincial statute could impose production quotas on all producers irrespective of the destination of their output (this part is important). Thus, Court held that production controls are ordinarily: matters w/in provincial authority. (v) Central Canada Potash v Sask: SCC struck down Sasks prorationing scheme for potash produced in province. Scheme imposed quotas on producers of potash in the province. Court acknowledged that production controls were ordinarily matters w/in provincial authority, but said that the situation may be different where a province establishes a marketing scheme with price fixing as its central feature [Hard to reconcile this with Re Agricultural Products, because they both essentially dealt with price fixing; but might want to look to the destination of the product if the majority of product is to be consumed within province, then statute will likely be intra vires. In this case, virtually all the potash was going to be exported] When the law is aimed at conservation purposes, a different story emerges: (vi) Spooner Oils: Where production controls are imposed for a physical conservation purpose, there is NO doubt that the province has power Securities regulation - Provinces have power to regulate the trade of securities, as a matter falling within property and civil rights Property General - The creation of property rights, their transfer, and their general characteristics, are w/in property and civil rights in the province - Difficulty has arisen in cases where a province has sought to control the ownership or use of property in order to accomplish a non-proprietary objective which it could not accomplish by more direct means: (i) Switzman v Elbing: A provincial law which prohibited the use of a house to propagate communism or bolshevism was characterized as either a criminal law or law in relation to speech, not property (ii) Beard v Dawson: A provincial law which prohibited the use of a house as a disorderly house was characterizes as a property law, and not as a mere supplement to Criminal Code offences in respect of disorderly houses (iii) Johnson v A-G- Alta: Court divided evenly on the question whether a provincial law which denied property rights in slot machines and provided for the confiscation of slot machines was a property or a criminal law Summary of principles (1) The regulation of a particular industry or business falls within the property and civil rights power (see Insurance Reference; Parsons) (2) The regulation of contracts falls under the property and civil rights power (Parsons) (2) The regulation of labour relations, as a general rule, falls within the property and civil rights power (Toronto Electric etc), although federal government can regulate labour relations which are a required part of a federal undertaking) (Stevedores Reference etc) (3) The regulation of INTRAprovincial trade falls within the property and civil rights power, even though it may have interprovincial effects (Shannon v Lower Mainland Dairy); to be valid, however, the legislation cannot be aimed at regulating interprovincial marketing (Manitoba Egg Reference). But the provinces can regulate production schemes, regardless of whether the output is interprovincial (sine that is generally a provincial matter) (Re Agricultural Products), so long as the majority of the product is not being exported (Central Canada Potash) (4) Where production controls are imposed for physical conservation purposes, then the matter falls within the property and civil rights power (Spooner Oils) (5) The creation of property rights, their transfer and general characteristics are normally within the property and civil rights power. Where a province seeks to control ownership or usage of property in order to accomplish a NON-proprietary objective, then there is a concern that it might be trampling on another head of power (e.g. criminal law) (e.g. Switzman) ---Citizen Insurance Company v. Parsons FACTS: Ontario, in 1876, enacted legislation regulating fire insurance policies that specified the standard conditions which were "deemed to be part of every policy of fire

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] insurance" made within the province. Under the legislation, an insurance company had the power to omit any of the additional provisions provided it warned the policy purchaser of the changes. The Respondent, Parsons purchased insurance in Ontario and then had a fire. When he went to collect the Appellant insurance from Citizen Insurance Company refused to pay based on his fail to disclose info required by the conditions in the policies. The Respondent went to Court. At Trial, the Appellant argued that it was not bound by the Provincial Insurance Act because it was ultra vires of the province's powers. ISSUE: Is the Provincial Insurance Act valid within s. 92(13) or does it violate s. 91(2)? REASONING: The Act was NOT ultravires the power of the enacting government. The act regulated contracts, and contracts falls under the head of property and civil rights. There are two important ratios to note about this case. They are: 1) There is a limitation on s. 91(2): s. 91(2), dealing with trade and commerce, is limited to the following areas: 1) International Trade and Interprovincial Trade; and 2) Regulation of Trade affecting whole Dominion - These are referred to as the two branches of the trade and commerce power (discussed below) - Section 91(2) should not be read to include the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance in a single province. 2) Provinces Can Regulate Contracts: Provincial legislatures have the jurisdiction to regulate contracts of a particular business or trade as long as it is within the province (including the ability to limit and control the manner in which the property may be dealt with, including the terms and conditions of the contracts) HELD: Judgement for the Respondent, the appeal was dismissed (legislation was intra vires). Feds do not have the authority to regulate the contracts of a specific trade, and thus its authority does not conflict or compete with 92(13) provincial authority to regulate civil and property rights. Parsons was allowed to recover. Appeal allowed. Appealed again to Privy counsel and therefore, no precedential value. Chatterjee v Ontario (A-G) FACTS: C found with lots of money, which was potentially acquired from crimes. Based on fed statute, the money was seized and preserved. In response, the appellant challenged the CRAs constitutionality: that challenge eventually led to this appeal. ISSUE: Whether the Ontario Remedies for Organized Crime and Other Unlawful Activities Act, 2001, S.O. 2001, c. 28 (otherwise known as Civil Remedies Act, 2001 or CRA), which authorizes the forfeiture of proceeds of unlawful activity, is ultra vires Ontario because it encroaches on the federal criminal law power. REASONING: Crime imposes significant costs at every level of government The appellants argument is the forfeiture of property tainted by crime in relation to federal offences, he says, encroaches directly on the federal governments exclusive jurisdiction over criminal law and is ultra vires STEP 1 (Pith and substance analysis) Must determine the MATTER in relation to which the impugned law is enacted: what is the essence of what the law does and how does it do it? [T]wo aspects of the law must be examined: the purpose of the enacting body, and the legal effect of the law . While a court is not bound by a purpose clause, a statement of legislative intent is often a useful tool to look for purpose [Analyse words, and come up with the GENERAL/OVERARCHING purpose(s)] Re: the effect, courts will look how the legislation as a whole affects the rights and liabilities of those subject to its terms (Morgantaler). When appropriate, as well, a reviewing court will look beyond the legal effect beyond the statutes four corners to examine the actual or predicted practical effect of the legislation in operation (Morgentaler). Application: (1) Purpose: The purpose of the Act was to make crime unprofitable, to capture resources tainted by crime and to help compensate private individuals and public institutions for the costs of past crime. Forfeiture is the transfer of property from the owner to the Crown. Forfeiture does not result in the conviction of anybody for any offence. On its face, therefore, the; CRA targets property rights (2) Effects: The record shows that as of August 2007 approximately $3.6 million in property has been ordered forfeited under the CRA of which approximately $1 million had been paid out to direct victims, $900,000 had been paid in grants to various bodies on victims issues, including the Peel Police Internet Child Exploitation Unit, leaving $1.7 million in special CRA accounts. Forfeited property included approximately $500,000 in property involved in marijuana grow operations, a Hamilton crack house. The practical (and intended) effect is to take the profit out of crime and to deter its present and would-be perpetrators. In essence, therefore, the CRA creates a property-based authority to seize money and other things shown on a balance of probabilities to be tainted by crime and thereafter to allocate the proceeds to compensating victims of and remedying the societal effects of criminality. The practical (and intended) effect is also to take the profit out of crime and to deter its present and would-be perpetrators STEP 2 (Assignment to heads of legislative power): Once the pith and substance is ascertained, it is necessary to classify that essential character of the law by reference to the provincial and federal classes of subjects listed in ss. 91 and 92 (or, in an appropriate case, ss. 93, 94A and 95) to determine if the law comes within the jurisdiction of the enacting legislature.

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] Clearly, the CRA relates to property but, of course, much of the Criminal Code is dedicated to offences involving property. To characterize a provincial law as being in pith and substance related to property is therefore just a starting point: (1) The provincial aspect: CRA fits neatly into the provincial competence in relation to Property and Civil Rights in the Province. The Attorneys General rely on Martineau v. M.N.R. for the proposition that civil mechanisms include the seizure as forfeit of goods and conveyances. Our jurisprudence offers many examples of the interplay between provincial legislative jurisdiction over property and civil rights and federal legislative jurisdiction over criminal law and procedure [Court looks at precedent, and draws analogies as to which head the law fits under, e.g. here they look at how previous court decisions dealt with the federal criminal law power and the provincial property and civil rights power together] (e.g, in Bdard v. Dawson, for example, the Court upheld the validity of a provincial law that authorized a judge to close a disorderly hous[e] for up to one year. The Court held that the law was directed to the enjoyment of property rights not criminal law) Where there is overlap between two heads of power, it is for the court to identify the DOMINANT FEATURE of the impugned statute. Although there may be incidental intrusion into another head over which the relevant government has no control, incidental intrusions are allowed (2) The federal aspect: [Court argues that criminal law is not the dominant purpose, drawing on case law analogies and distinguishing]. E.g. The appellant and the interveners supporting him invoke Industrial Acceptance and Johnson as authorities for the proposition that [f]orfeiture, in the context of property tainted by crime, is punishment (A.F., at para. 44) but, in my view, neither case read in light of our subsequent jurisprudence supports such a broad proposition. HELD: Appeal dismissed COMMENT: Note the significant overlap between this head of power and criminal law power (2) The federal trade and commerce power is confined to (a) interprovincial or international trade and commerce; and (b) general trade and commerce (affecting the domino as a whole) Interprovincial or international trade and commerce: limb 1 Privy Council - Early cases suggested that unless a federal law attempted to control (not particular trades) but more general aspects of the economy (combinations, prices, labour), which were governed by economic forces that ignored provincial boundaries, then they could not be held valid under the trade and commerce power. Supreme Court of Canada: (i) Ontario Farm Products Marketing Ref: Fed power could extend to some transactions that were completed in provinces (ii) R v Klassen: Issue was whether the Act could validly apply to a purely local work a feed mill which processed locally produced wheat and sold it as feed to local farmers. The Act imposed on produces a quota system which was designed to ensure equal access to the interprovincial and export market. Here, impugned Act was valid in relation to this intraprovincial transaction, as it was incidental to the principal purpose of the Act, which was to regulate the interprovincial and export trade in grain. Principle: If impugned Act has incidental application to intraprovincal transactions, thats ok (so long that the intraprovincial effects were incidental to the purpose of the Act). Caloil case confirms Klassen on this point. --- Hogg suggests caution when interpreting these cases, however, which specifically dealt w/ grain/oil flow across provincial lines. Logically speaking, it makes sense that whenever a market for a product is national or international in size (like the market for grain or oil), there is a strong argument that effect regulation of that market can only be national. (iii) Re Agricultural Products Marketing Act: A federal marketing statute was upheld, and was the federal element of interlocking federal and provincial statutes that regulated egg industry, and several aspects of intraprovincial production/marketing of eggs. The decision on its face appears to expand the Fed power, but it might not be a useful precedent for a # of reasons (including that the Court was impressed by the fact that the federal Act was the centerpiece of a cooperative scheme). Nevertheless, this case, and a subsequent one called Federation des producteurs v Pellland (which also dealt with a federal provincial scheme) stand for the proposition that a federal statute can lawfully impose quotas on

[4]

TRADE AND COMMERCE: s 91(2), Constitution Act 1867

Relationship to property and civil rights - S 91(2) of Constitution Act, 1867 confers upon federal Parliament power to make laws in relation to the regulation of trade and commerce - Judicial interpretation has narrowed the scope of that clause - s 91(2) and s 92(13) (i.e. property and civil rights power of the provinces) appear to overlap, but Courts, by a process of mutual modification, have narrowed the two classes of subjects so as to eliminate the overlapping -Since the Parsons case, it has been accepted that: (1) Intraprovincial trade and commerce is a matter w/in the provincial power under property and civil rights (a provincial matter)

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] each province without regard to the destination of the product (ie, even if the product is consumed mainly in province), at least where there is a cooperative federal-provincial scheme in place. (iv) Dominion Stores v The Queen: SCC struck down Part 1 of the federal Canada Agricultural Product Standards Act. The Act provided appropriate grade names for agricultural products. Part I of Act provided that if the grade names were used in local trade, then the appropriate federal standards had to be complied with. Dominion Stores was charged w/ selling apples (which were locally produced) under the federally established grade name Canada Extra Fancy, which did not comply with the standards stipulated for that grade of apples. The company was acquitted on the ground that Part I was unconstitutional in its attempt to regulate local trade [HOGG says this is wrongly decided such a modest intrusion into local trade has a rational, functional connection with the regulation of interprovincial and international trade; and in rejecting this intrusion into local trade, Court seems to have revered to the bad old days of the Privy Councils watertight compartments] (v) Labatt Breweries v A-G: federal trade and commerce power was rejected as a support for federal legislation. Court struck down compositional standards for beer enacted under the Food and Drugs Act. The standards imposed on the beer industry were without regard for the products movements across provincial boundaries AND the case reaffirmed the rule that the trade and commerce power will not authorize the regulation of a single trade or industry General trade and commerce: limb 2 - This limb, for example, deals with legislation enacting federal policies of economic regulation. Further, legislation in this area is not confined to international or interprovincial trade and commerce - The following cases deal with regulating compositional standards: (i) Canada Standard Trade Mark: Until 1989, this was the only unequivocal example of a valid exercise of the general trade and commerce power. The Privy Council upheld a federal statute which established a national mark called Canada Standard. The use of the mark was voluntary, but if the mark was used, federal standards as to the quality of the product so marked had to be complied with. The use of the mark was not confined to international or interprovincial trade. The case seemed to decide that the general trade and commerce power would authorize federal standards of production or manufacture for products traded locally, provided that the federal standards were tired to the voluntary use of a distinctive mark But see Dominion Stores v The Queen (1979), which seemed to have similar facts but a different decision resulted [My view: since this is a more recent case, accept it as being a better authority than Canada Standard]

(ii) Labatt Breweries: SCC struck down compositional standards for light beer which would become applicable only through the use of the voluntary phrase light beer. Majority basically held that this case, unlike Canada Standard Trade Mark, involved the use of a common name (light beer), which is virtually mandatory and would affect producers who did not want to be affected --- The following cases deal with regulating business practices: (iii) MacDonald v Vapor Canada: In this case, a civil remedy for any business practice which was contrary to honest industrial or commercial usage was said to not fall under the fed power the creation or extension of civil causes of action of an essentially contractual or tortious character was a matter w/in property and civil rights. The only federal aspect was that the law applied throughout Canada, but this is insufficient. --- Dicta in Vapor (re: regulatory scheme) have proved to be important, having become the basis for upholding the federal Competition Act: (iv) General Motors v City National Leasing: The Competition Act was a valid exercise of the general trade and commerce power. A 5 part test was adopted, and employed (using part of the Vapor test). In this case, the allegations that gave rise to litigation concerned price discrimination in the financing of the purchase of vehicles by companies that lease fleets of automobiles and trucks. These purchases were transactions that took place within a single province. Thus, since the law was upheld, the conclusion was that Parliament has the constitutional power to regulate intraprovincial aspects of competition --- There are also some relevant trade mark cases: (v) Canada Standard Trade Mark: OBITER from this case suggests that the fed power can be used to enact trade mark acts. This was supported by Kirkbi v Ritivik Holdings. Summary of principles (1) The federal trade and commerce power has 2 limbs (Parsons): (a) interprovincial or international trade and commerce; and (b) general trade and commerce (affecting the domino as a whole) (2) Re the first branch, federal legislation may have incidental application to intraprovincal transactions and still be upheld under the trade and commerce power, particularly when the legislation is regulating a material that has a national market (R v Klassen)

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] (3) Re the first branch, it is possible (but not necessarily the case) that, in the name of trade and commerce, a federal statute can lawfully impose quotas on each province and individual producers in that province even if the product is consumed mainly in province, at least in the case where there is a federal-provincial cooperative scheme in place (Re Agricultural Products Marketing Act; Federation des producteurs v Pellland) (4) Re the second branch, it is likely that, in the name of trade and commerce, a federal statute can lawfully stipulate that the voluntary use of a distinctive mark gives rise to the requirement that the relevant material conform to set compositional standards (Canada Standard), although the involuntary/lack of choice of using a distinctive mark will not lawfully give rise to the requirement that compositional standards must be complied with (Labatt Breweries) (5) Civil remedies can be used as part of a scheme to regulate national trade practices, and be upheld under the trade and commerce power, if they are sufficiently connected to a valid act under which there is a regulatory scheme (GM v National Leasing) (6) Parliament has the power, under the general trade and commerce power, to regulate intraprovincial aspects of competition (GM v National Leasing) (7) Parliament, via the general trade and commerce power, cannot regulate a single trade, even on a national basis (Labatt Breweries) ----Citizen Insurance Company v. Parsons FACTS: Ontario, in 1876, enacted legislation regulating fire insurance policies that specified the standard conditions which were "deemed to be part of every policy of fire insurance" made within the province. Under the legislation, an insurance company had the power to omit any of the additional provisions provided it warned the policy purchaser of the changes. The Respondent, Parsons purchased insurance in Ontario and then had a fire. When he went to collect the Appellant insurance from Citizen Insurance Company refused to pay based on his fail to disclose info required by the conditions in the policies. The Respondent went to Court. At Trial, the Appellant argued that it was not bound by the Provincial Insurance Act because it was ultra vires of the province's powers. ISSUE: Is the Provincial Insurance Act valid within s. 92(13) or does it violate s. 91(2)? REASONING: There are two important ratios to note about this case. They are: 1) Limitation on s. 91(2): s. 91(2), dealing with trade and commerce, is limited to the following areas: 1) International Trade and Interprovincial Trade; and 2) Regulation of Trade affecting whole Dominion (general branch) - These are referred to as the two branches of the trade and commerce power - Section 91(2) should not be read to include the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance in a single province. 2) Provinces Can Regulate Contracts: Provincial legislatures have the jurisdiction to regulate contracts of a particular business or trade as long as it is within the province (including the ability to limit and control the manner in which the property may be dealt with, including the terms and conditions of the contracts) HELD: Judgement for the Respondent, the appeal was dismissed (legislation was intra vires). Feds do not have the authority to regulate the contracts of a specific trade, and thus its authority does not conflict or compete with 92(13) provincial authority to regulate civil and property rights. Parsons was allowed to recover. Appeal allowed. Appealed again to Privy counsel and therefore, no precedential value. General Motors v City National Leasing: FACTS: During the 1970s General Motors (GM) sold vehicles to both City National Leasing (CNL) and to CNL's competitors. It was discovered that GM was giving CNL's competitor a better interest rate than CNL, which violated the federal Combines Investigation Act. In its defence GM argued that the provision in the Act that created the civil cause of action was outside the legislative competence of the federal government. ISSUE: In the present appeal, the appellant focuses its attack on a particular section of the Act. Is s 31,1 valid? REASONING: The General Trade and Commerce Power The leading case on s 91(2) is Parsons Parsons established 3 propositions re s 91(2): (i) it does not correspond to the literal meaning of the words "regulation of trade and commerce"; (ii) it includes not only arrangements with regard to international and interprovincial trade but "it may be that . . . (it) would include general regulation of trade affecting the whole dominion"; (iii) it does not extend to regulating the contracts of a particular business or trade [Parsons, then, is authority for the proposition of the 2 limbs of s 91(2)] In examining cases which have considered s. 91(2), it is evident that courts have been sensitive to the need to reconcile the general trade and commerce power of the federal government with the provincial power over property and civil rights Court points to 2 cases and states that neither correctly assesses the balance to be struck btw s.91(2) and 92(13): 1. Wharton which the court stated was clearly overly expansive in the power granted to the federal government in relation to trade and commerce under 91(2)

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] 2. Board of Commerce - which the court stated fails to breath life into the trade and commerce power under 91(2) and fails to recognize that provincial powers are a subtraction for the federal powers Steps To Resolve This Kind of Case First, where there is a challenge to the provision of an Act, the court must determine whether the impugned provision can be viewed as intruding on provincial powers, and if so to what extent (if it does not intrude, then the only possible issue is the validity of the act; if the provision does intrude, then must determine the degree to which the provision could be said to intrude on provincial powers, so that this intrusion can be weighed in light of the possible justification for the section. Such a justification will result from the impugned provision's relationship to valid legislation. Thus the next step in the process is to ascertain the existence of valid legislation) Second, the court must establish whether the act (or a severable part of it) is valid; in cases under the second branch of s. 91(2) this will normally involve finding the presence of a regulatory scheme and then ascertaining whether that scheme meets the requirements articulated in Vapor Canada, supra, and in Canadian National Transportation, supra. That is, once the presence of a regulatory scheme has been shown to exist, it will be necessary, using the factors outlined in Vapor Canada, supra, and Canadian National Transportation, supra, to determine its constitutional validity. If the scheme is not valid, then the Act is not valid, and that is the end of the inquiry Third, if the scheme of regulation is declared valid (and therefore the Act, or severable part of it is valid), the court must then determine whether the impugned provision is sufficiently integrated with the scheme that it can be upheld by virtue of that relationship. This requires considering the seriousness of the encroachment on provincial powers, in order to decide on the proper standard for such a relationship. Fourth, if the provision passes this integration test, it is intra vires Parliament as an exercise of the general trade and commerce power. If the provision is not sufficiently integrated into the scheme of regulation, it cannot be sustained under the second branch of s. 91(2). The following is a more detailed analysis, and application, of the test: (1) Does Section 31.1 Encroach on Provincial Powers? The first step, therefore, in assessing the validity of s. 31.1 of the Combines Investigation Act is to determine whether the impugned provision can be seen as encroaching on provincial powers, and if so, to what extent The section does encroach, b/c it creates a civil action which is generally a provincial matter under s 92(13) It does not encroach to a fatal extent, though the provision is a remedial one; federal encroachment in this matter isnt unprecedented (2) The Presence and Validity of a Regulation Scheme The second step in determining the validity of s. 31.1 is to establish whether the Act contains a regulatory scheme The presence of a well orchestrated economic regulation scheme is present on examination of the Act (throughout the Act. Act creates, e.g., Director of Investigation and Research, Restrictive Trade Practices Commission etc to oversee its application From this overview of the Combines Investigation Act I have no difficulty in concluding that the Act as a whole embodies a complex scheme of economic regulation. The purpose of the Act is to eliminate activities that reduce competition in the market-place. The entire Act is geared to achieving this objective. The Act identifies and defines anticompetitive conduct. It establishes an investigatory mechanism for revealing prohibited activities and provides an extensive range of criminal and administrative redress against companies engaging in behaviour that tends to reduce competition But is the Regulatory scheme VALID under the general trade and commerce power IN LIGHT OF the criteria established in Canadian National Transportation? FOUR other criteria have to be examined: (a) The regulatory scheme operates under the oversight of an agency: Yes. The regulatory mechanism is carefully controlled by the Director of Investigation and Research and to a lesser degree by the Restrictive Trade Practices Commission ---The next three criteria are indications that the scheme of regulation is national in scope and that local regulation would be inadequate --(b) The Act is concerned with trade in general: Yes. Concerned w/ trade in general, rather than with the regulation of a particular industry or commodity (i.e. eliminating commercial practices which are contrary to healthy competition across the country) (c) The provinces would be constitutionally capable of enacting combines legislation: No. (d) The failure to include one or more provinces or localities would jeopardize the successful operation of the Combines Investigation Act: Yes (3) The Validity of s. 31.1 of the Combines Investigation Act Mere inclusion in a valid legislative scheme does not ipso facto confer constitutional validity upon a particular provision The provision must be sufficiently related to that scheme for it to be constitutionally justified. The degree of relationship that is required is a function of the extent of the provision's intrusion into provincial powers Given the level of intrusion, the appropriate test in this case is whether the section is functionally related to the general objective of the legislation I am of the opinion that the necessary link between s. 31.1 and the Act exists. Section 31.1 is an integral, well-conceived component of the economic regulation strategy found in the Combines Investigation Act. Even if a much stricter test of fit were applied -- for instance, one of "necessarily incidental" -- s. 31.1 would still pass the test. Section 31.1 of the Combines Investigation Act is fundamentally integrated into the purpose and underlying philosophy of the Combines Investigation Act. There is a close congruence

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] between the goal of enhancing healthy competition in the economy and s. 31.1 which creates a private remedy dependent for its effectiveness on individual initiative The very exercise of the remedy in s. 31.1 by a company against a competitor whose behaviour has transgressed the code of conduct established by the Act may be said to reflect and promote the spirit of competition informing the Combines Investigation Act. In my view, the intimate tie between the purpose of the Act and a privately initiated and privately conducted enforcement mechanism is a strong indication that s. 31.1 is enmeshed in the fabric in the Act. This conclusion rebuts the appellant's argument that s. 31.1 tilts the constitutional balance between the federal domain and the domain of the provinces in favour of Parliament. Satisfying all of the concerns which I have discussed ensures that the constitutional balance will not be upset Other Points It is also worth mentioning that in itself s. 31.1 does not share the characteristics of provisions that were not upheld as exercises of the general trade and commerce power: (a) regulating a single trade, even though on a national basis (Labatt Breweries, supra); (b) regulating a series of individual trades by various regulations or trade codes applicable to each individual sector (Re Anti-Inflation Act, [1976] 2 S.C.R. 373); (c) controlling production in a local area (Canadian National Transportation, supra); (d) proscribing the ethical conduct of persons engaged in trade and unconnected to a general regulatory scheme governing trade relations (Vapor Canada, supra); (e) regulating contracts of a particular business or trade (Parsons, supra). HELD: Section 31.1 is intra vires parliament by virtue of its relationship to the scheme of economic regulation found in the Combines Investigation Act. They both are valid federal enactments in accordance with Parliaments power over trade and commerce affecting the entire nation. COMMENT: The Court outlined the analysis for determining the constitutionality of a provision under the "general" branch of the Trade and Commerce power

(2)

The national concern branch

(a) Relevant cases (i) Local Prohibition case: The idea that some matter of legislation, in their local and provincial origin, could acquire national dimensions or national concern and thereby come w/in the federal Parliaments p.o.g.g. power (ii) Canada Temperance case: a new test was formulated (and the requirement that the national concern amount to an emergency was repudiated): if the legislation is such that it goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole, then it will fall within this head of power, although it may in another aspect touch on other matters over which province has authority. [THIS IS THE ESTABLISHED DEFINITION OF THE NATIONAL CONCERN BRANCH] (iii) Johannesson v West St Paul (SCC case): Aeronautics satisfied the national concern branch (e.g. rapid growth of passenger and freight traffic by air, the use of aircraft for the carriage of mails especially to remote parts of the country, etc are concerns of the nation as a whole) (iv) Munro v NCC (SCC case): The national capital region, which was established by federal legislation, was valid under this power, although it is located in Ottawa (v) R v Crown Zellerbach (SCC case): Marine pollution satisfied the national concern test (b) Definition of national concern - When does subject matter become the concern of the Dominion as a whole to satisfy the national concern test? - Distinctness is the key: In order to qualify as a matter of national concern, a topic must be distinct: it must have a degree of unity that makes it indivisible, an identity which makes it distinct from provincial matters (Anti-Inflation Ref; Crown Zellerbach)

[5] PEACE, ORDER AND GOOD GOVERNMENT: Act 1867

s 91, Constitution

- The power is residuary, b/c it is expressly confined to matters not coming w/in the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces- The proper interpretation of the P.O.G.G power is that it is to accommodate the matters which do not come within any of the enumerated provincial or federal heads of power - The P.O.G.G. power has given rise to 3 branches of legislative power: (1) The gap branch - E.g. the incorporation of companies; treaties - This one isnt that important

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] (a) An indicia of distinctness is the provincial inability test (Crown Zellerbach): It has been said that the most important element of national concern is a need for one national law which cannot realistically be satisfied by cooperative provincial action because the failure of one province to cooperate would carry with it adverse consequences for the residents of other provinces. A subject matter of legislation which has this characteristic has the necessary national concern to justify invocation of the p.o.g.g. power [This is an indicia, not determining element of it] (b) Further, does the Act treat the regulation of (X: i.e. what its regulating) as distinct from the regulation of a larger issue, an issue for which provincial control might be more appropriate? (3) The emergency branch - Emergency test was first applied in Toronto Electric Commissioners v Snider: The p.o.g.g. power only available in cases arising out of extraordinary peril - Fed legislation enacted during First World War that dealt with economic responses to the war was held constitutional under this power (Fort Frances) - The War Measures Act was held constitutional in one other context other than war, namely during the October Crisis when a violent Quebec separatist group kidnapped a British diplomat; the fed government responded by issuing a proclamation declaring that an apprehended insurrection exists, bringing into force War Measures Act - The most recent application of the emergency doctrine is to be found in the AntiInflation Reference case, in which the federal Anti-Inflation Act was upheld as an emergency measure. That case indicates that all you need to show is that there is a rational basis for finding that an emergency exists dont need definitive conclusions - Note that federal emergency power only supports temporary measures (Re Anti Inflation Act) Relationship between emergency branch and national concern branch - The pogg power gives to the fed Parliament the PERMANENT jurisdiction over distinct subject matters which do not fall within any of the enumerated heads of s 92, and which by nature are of national concern, e.g. aeronautics, the national capital region (Anti Inflation Reference) - Second, the pogg power gives the fed Parliament TEMPORARY jurisdiction over all subject matters (including general ones like inflation) needed to deal with an emergency, so long as the legislation operates as a partial and temporary alteration of the distribution of power b/w Parliament and provincial legislatures (Anti Inflation Reference) R v Crown Zellerbach Canada (A case dealing with the national concern branch) FACTS: The federal Ocean Dumping Control Act prohibited at sea dumping. The respondent dredged wood waste from the ocean floor immediately adjacent to the shoreline at the site of its log dump in Beaver Cove and deposited it in the deeper waters of the cove approximately 60 to 80 feet seaward of where the woodwaste had been dredged ISSUE: Is section 4(1) of the Ocean Dumping Control Act, S.C. 1974-75-76, c. 55, ultra vires of the Parliament of Canada, and, in particular, is it ultra vires of the Parliament of Canada in its application to the dumping of waste in the waters of Beaver Cove, an area within the province of British Columbia, and which cannot cause pollution in extraprovincial waters? REASONING: Note: the respondent concedes, as it must, that Parliament has jurisdiction to regulate dumping in waters lying outside the territorial limits of any province STEP 1: Pith and substance of the Act The Act, viewed as a whole, may be properly characterized as directed to the control or regulation of marine pollution, in so far as that may be relevant to the question of legislative jurisdiction. Its purpose is to require a permit so that the regulatory authority may determine before the proposed dumping has occurred whether it may be permitted upon certain terms and conditions, having regard to the factors or concerns specified in ss. 9 and 10 of the Act and Schedule III. The Act is concerned with the dumping of substances which may be shown or presumed to have an adverse effect on the marine environment. The nature of the marine environment and its protection from adverse effect from dumping is a complex matter which must be left to expert judgment. STEP 2: Which head of power does it fall under? Court first rejected that the Act could be upheld under the fisheries power (because these arguments were made by a party) Next, Court asked whether it could be upheld under the federal peace, order and good government power (using the national concern doctrine) Court cited the Canada Temperance Federation test, and then said that in applying it, you must look to some of the important cases like Re Anti Inflation Act which followed up the Temperance case [He then summarized some of the important/relevant findings from these cases, e.g. that the Johannesson case supported legislation re: aeronautics under this branch --- about 5 cases were cited, with reference to relevant points] Court drew several conclusions from the cases about the doctrine: 1. The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order and good government power, which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature; 2. The national concern doctrine applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern; 3. For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] that is reconcilable with the fundamental distribution of legislative power under the Constitution; 4. In determining whether a matter has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern, it is relevant to consider what would be the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter [I.e. the provincial inability test]: In this sense, the "provincial inability" test is one of the indicia for determining whether a matter has that character of singleness or indivisibility required to bring it within the national concern doctrine. It is because of the interrelatedness of the intra-provincial and extra-provincial aspects of the matter that it requires a single or uniform legislative treatment. The "provincial inability" test must not, however, go so far as to provide a rationale for the general notion, hitherto rejected in the cases, that there must be a plenary jurisdiction in one order of government or the other to deal with any legislative problem. In the context of the national concern doctrine of the peace, order and good government power, its utility lies, in my opinion, in assisting in the determination whether a matter has the requisite singleness or indivisibility from a functional as well as a conceptual point of view Court says that marine pollution, because of its predominantly extraprovincial as well as international character and implications, is clearly a matter of concern to Canada as a whole. The question is whether the control of pollution by the dumping of substances in marine waters, including provincial marine waters, is a single, indivisible matter. The Ocean Dumping Control Act reflects a distinction between the pollution of salt water and the pollution of fresh water. The question, as I conceive it, is whether that distinction is sufficient to make the control of marine pollution by the dumping of substances a single, indivisible matter falling within the national concern doctrine of the peace, order and good government power. Marine pollution by the dumping of substances is clearly treated by the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter as a distinct and separate form of water pollution having its own characteristics and scientific considerations. Further, marine pollution, because of the differences in the composition and action of marine waters and fresh waters, has its own characteristics and scientific considerations that distinguish it from fresh water pollution. Moreover, the distinction between salt water and fresh water as limiting the application of the Ocean Dumping Control Act meets the consideration emphasized by a majority of this Court in the Anti-Inflation Act reference--that in order for a matter to qualify as one of national concern falling within the federal peace, order and good government power it must have ascertainable and reasonable limits, in so far as its impact on provincial jurisdiction is concerned. HELD: s 4(1) is constitutionally valid as enacted in relation to a matter falling w/iin the national concern branch of the peace order and good government power Anti Inflation Reference (Deals with the emergency branch) FACTS: The Anti-Inflation Act was passed in 1975, on recommendation of the Bank of Canada, to control the growing inflation of the past several years. Due to growing unease with the Act, the federal government put two questions to the Supreme Court on the validity of the Act. ISSUE: Whether the social and economic circumstances upon which Parliament can be said to have proceeded in passing the Act were such as to provide support for the Act in the power of Parliament to legislate for the peace, order and good government of Canada REASONING: CJs Judgment Court needs to find that there is a rational basis for the emergency legislation (not definitive proof that there was an emergency) [REQUIREMENT] Fed legislation can be upheld under the emergency test of the popp power even if it was enacted after the emergency had ended (because the effects of the emergency may still be operative) [RULE] Fed legislation can be upheld under the emergency test of the popp power even if it intrudes on provincial territory [RULE] An emergency isnt limited to wars [RULE] It isnt for the Court to assess whether the Act will in fact have the effect to mitigate against the emergency The Anti-Inflation Act is valid legislation for the peace, order and good government of Canada and does not, in the circumstances under which it was enacted [sic] and having regard to its temporary character, invade provincial legislative jurisdiction [So, the legislation must be temporary in nature, otherwise it would be seen as invading provincial jurisdiction[ The word emergency need not be used in the Act for the Act to be upheld under the emergency test of the pogg power Richie Js Judgment: An emergency exists where there can be said to be an urgent and critical situation adversely affecting all Canadians and being of such proportions as to transcend the authority vested in the Legislatures of the Provinces and thus presenting an emergency which can only be effectively dealt with by Parliament in the exercise of the powers conferred upon it by s. 91 of the British North America Act "to make laws for the peace, order and good government of Canada [DEFINITION OF EMERGENCY] The authority of Parliament is limited to dealing with critical conditions and the necessity to which they give rise must be confined to legislation of a TEMPORARY CHARACTER [REQUIREMENT] In order to determine whether the legislation in question was enacted to combat such an emergency, it is necessary to examine the legislation itself (i.e. look at the preamble etc) [Here, the preamble recognized the fact that inflation at current levels was contrary to the interest of all Canadians] [RULE] HELD: The Act was not ultra vires the fed parliament

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - RJR MacDonald v Canada: federal Tobacco Act did two things: require placement of health warning labels on cigarette packs and prohibited the advertising of cigarettes and other tobacco products. For the warning label requirement, the law was valid because the valid criminal purpose of protecting health. The ban on advertising? Parliament clearly can prohibit the sale, possession and manufacture of dangerous products (Irwin Toy), but it had not done that here. Yet, majority said the power to prohibit the use of tobacco on account of its harmful effects encompassed the power to take the lesser step of prohibiting advertising [So, the criminal law power can be used indirectly to achieve a criminal law purpose] Health - As seen above, there is a criminal law aspect of health, authorizing federal legislation under s 91(27) to punish conduct that is dangerous to health Environment protection - The protection of the environment (which extends beyond the protection of human health) is a public purpose that would support a federal law under the criminal law power (R v Hydro-Quebec) Competition law - The P.A.T.A. case established that the criminal law power was capable of expansion into the world of commerce, after it upheld federal legislation which dealt with restraint of trade issues - BUT now, the criminal aspect of the Act, due to changes in competition law, have diminished, and the relevant power for the most part is trade and commerce - See, e.g., General Motors v City National Leasing Sunday observance law (a) Federal power - In Big M Drug Mart, it was confirmed that the criminal law power can be used to legislate in relation to the purpose of preserving the sanctity of the Christian Sabbath (and observance of days of religious significance) comes within safeguarding morality (a purpose identified in Margarine Reference) (b) Provincial power - Laws which provide pause days or restrict business hours, and which have secular purposes, are valid under the property and civil rights provincial power (see, e.g. Lieberman)

[6]

CRIMINAL LAW: s 91 (27) Constitution Act, 1867

- Criminal law, under s 91(27), is a federal responsibility, although for the most part the Code is enforced by provinces - The provincial role in criminal justice derives from s 92(14), which confers on provincial legislatures the power to make laws in relation to the admin of justice, including the constitution, maintenance and organization of provincial courts, and including procedure in civil matters in those courts Definition of criminal law - Three ingredients to the criminal law power: (1) A prohibition; (2) Coupled with a penalty (3) With a criminal public purpose: a. E.g. public peace, order, security, health, morality etc (see Margarine Reference) - Note: there is no harm requirement for a law to be valid (Malmo-Levine); the criminal law power can serve economic ends (e.g. PATA case); a criminal purpose may be pursued by indirect means (RJR-MacDonald v Canada, e.g. health risks of tobacco did not require the outright banning of cigarettes, and could have been pursued by limiting advertising) Food and drugs (a) Food and drug standards - It is well established that food and drug legislation making illegal the manufacture or sale of dangerous products, adulterated products or misbranded products is within the criminal law power (R v Wetmore) - Labatt Breweries v A-G Can: If the purpose of the federal food and drug standards is related to health and/or the minimization of deception, then the law can be upheld under the criminal power (b) Illicit drugs - In Schneider v The Queen, the SCC upheld the BC Heroin Treatment Act, which provide for the compulsory apprehension, assessment and treatment of drug addicts; the treatment could include compulsory detention for up to 6 months. The argument that this was really a criminal law was based on the deprivations of liberty that were authorized by the Act [So, where there an Act allows for deprivations of liberty, cite this case] (c) Tobacco

Gun control

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - In 1995, the fed Parliament amended Code provisions, by enacting the Firearms Act which expanded existing rules by requiring ALL guns to be registered and ALL gun owners to be licensed. - The SCC upheld the validity of this legislation under the criminal law power in Re Firearms Act. Prevention of crime Criminal law and civil remedy (a) Federal power generally to create civil remedies - The federal Parliament has no independent power to create civil remedies akin to its power over criminal law. This means that if the pith and substance of a federal law is the creation of a new civil cause of action, the law will be invalid as coming within the provincial head of power property and civil rights (see MacDonald v Vapor Canada) - Where the pith and substance of a federal law is not the creation of a civil remedy, but is some other matter within federal power, there is no reason to doubt the validity of a civil remedy provided for enforcement of the law the remedy is valid as incidental to the main purpose of the law (see Papp v Papp) - Since Papp v Papp, the SCC has used the functional connection test to uphold a civil remedy in federal corporation law, against persons who engage in insider trading, a civil remedy in federal competition law etc (b) Criminal law power to create civil remedies - In R v Zelensky, the SCC upheld a provision of the Criminal Code that authorized a criminal court, upon convicting an accused of an indictable offence, to order the accused to pay the victim compensation for any loss or damage Criminal law and regulatory authority - Crim power generally wont sustain a regulatory regime/scheme which relies upon more sophisticated tools than a simple prohibition and penalty - Eg. Nova Scotia Board of Censors v McNeil: SCC held that the censorship of films was not criminal. Court upheld censorship law as being the regulation of an industry within the province (property and civil rights) - But see R v Furtney: SCC held that a Code provision respecting lotteries, which prohibited lotteries, but made an exception for organizations licensed by the Lieutenant Governor in Council. The law was valid despite the fact that it delegated regulatory power to the provincial LG in Council - And see R v Hydro-Quebec: HQ was prosecuted for violating an interim order that restricted the emission of a substance to one gram per day. Majority upheld the Act as a criminal law. Because the admin procedure for assessing the toxicity of the substances culminated in a prohibition enforced by a penal sanction, the scheme was sufficiently prohibitory (see also Re Firearms Act, which affirms this reasoning) Provincial power to enact penal laws - See s 92(15) - Provincial power to create offences under that section is not as broad as the federal power to create offences under s 91(27) - Where the penalties are imposed in respect of matters over which the provinces ordinarily have legislative jurisdiction (e.g. property, streets, parks, businesses activity), the provincial law is likely to be valid. Where the provincial offence cannot safely be anchored in property/civil rights or some other head of provincial power, then it will be invalid (see, e.g., Westendorp) Re Firearms Act FACTS: In 1995, Parliament amended the Criminal Code, R.S.C., 1985, c. C-46, by enacting the Firearms Act, S.C. 1995, c. 39, commonly referred to as the gun control law, to require the holders of all firearms to obtain licences and register their guns. The federal government asserts that the gun control law falls under its criminal law power, s. 91(27), and under its general power to legislate for the Peace, Order and good Government of Canada. Alberta, on the other hand, says the law falls under its power over property and civil rights, s. 92(13). ISSUE: The issue before us is whether the licensing and registration provisions of the Firearms Act constitute a valid federal enactment pursuant to Parliaments jurisdiction over criminal law or its peace, order and good government power. REASONING: Introduction In order to answer this question, we must engage in the division of powers analysis There are two stages to this analysis. The first step is to determine the pith and substance or essential character of the law. The second step is to classify that essential character by reference to the heads of power under the Constitution Act, 1867 in order to determine whether the law comes within the jurisdiction of the enacting government. If it does, then the law is valid. STEP 1: Determine what the gun control law is really about (PITH AND SUBSTANCE ANALYSIS): - To determine the pith and substance, two aspects of the law must be examined: the purpose of the enacting body, and the legal effect of the law (a) Purpose: - A laws purpose is often stated, but it may also be ascertained by reference to extrinsic material: Morgentaler - Purpose may also be ascertained by considering the mischief of the legislation -the problem which Parliament sought to remedy: Morgentaler - HERE, extrinsic evidence indicates that the purpose is to promote public safety. Also, looking to the mischief approach, the Act is aimed at a number of evils e.g. illegal trade in guns, another is the link between guns and violent crime, accidental deaths etc (b) Legal effect:

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - Determining the legal effects of a law involves considering how the law will operate and how it will affect Canadians - The inquiry is directed to how the law sets out to achieve its purpose in order to better understand its total meaning - In other words, a law may say that it intends to do one thing and actually do something else. Where the effects of the law diverge substantially from the stated aim, it is sometimes said to be colourable. - HERE, the effects of the scheme also support the conclusion that the conclusion that the 1995 gun control law is in pith and substance a public safety measure. - The criteria for acquiring a licence are concerned with safety rather than the regulation of property. Criminal record checks and background investigations are designed to keep guns out of the hands of those incapable of using them safely. Safety courses ensure that gun owners are qualified. There is no attempt to protect or regulate industries or businesses associated with guns (c) Conclusion: - We therefore conclude that, viewed from its purpose and effects, the Firearms Act is in pith and substance directed to public safety STEP 2: Determine which HEAD/HEADS OF POWER it most naturally falls within (in order to determine whether the law comes within the jurisdiction of the enacting government) - Having assessed the pith and substance or matter of the law, the second step is to determine whether that matter comes within the jurisdiction of the enacting legislature. - We must examine the heads of power under ss. 91 and 92 of the Constitution Act, 1867 and determine what the matter is in relation to - In this case, the question is whether the law falls under federal jurisdiction over criminal law or its peace, order and good government power; or under provincial jurisdiction over property and civil rights [Say what heads of power are in issue] - The determination of which head of power a particular law falls under is not an exact science. In a federal system, each level of government can expect to have its jurisdiction affected by the other to a certain degree. - NOTE: the presumption of constitutionality means that Alberta, as the party challenging the legislation, is required to show that the Act does not fall within the jurisdiction of Parliament: see Nova Scotia Board of Censors v. McNeil Criminal law power: - As a general rule, legislation may be classified as criminal law if it possesses three prerequisites: a valid criminal law purpose backed by a prohibition and a penalty: RJRMacDonald, supra; Hydro-Qubec - Before determining whether the three criminal law criteria are met by this legislation, some general observations on the criminal law power may be apposite [Court goes on to note some general features of it, like how it constitutes a broad area of federal jurisdiction] - Then Court looks at whether 3 criteria are satisfied: (i) The first step is to consider whether the law has a valid criminal law purpose (noting Margarine Reference). Public safety clearly comes within criminal law purpose, and more specifically, gun control is a VALID criminal law purpose [In determining whether the purpose of a law constitutes a valid criminal law purpose, courts look at whether laws of this type have traditionally been held to be criminal law: see Morgentaler]; (ii) + (iii): Further, that purpose must be connected to a prohibition backed by a penalty. The 1995 gun control law satisfies these requirements. Section 112 of the Firearms Act prohibits the possession of a firearm without a registration certificate. Section 91 of the Criminal Code (as amended by s. 139 of the Firearms Act) prohibits the possession of a firearm without a licence and a registration certificate. These prohibitions are backed by penalties: see s. 115 of the Firearms Act and s. 91 of the Code. - Thus, it appears that the law possesses all the 3 criteria for a valid criminal law. But there are some objections raised by the provinces that must be considered: (i) Regulation or criminal prohibition? The first objection is that the Firearms Act is essentially regulatory rather than criminal legislation because of the complexity of the law and the discretion it grants to the chief firearms officer. Despite its initial appeal, this argument fails to advance Albertas case. The fact that the Act is complex does not necessarily detract from its criminal nature. Further, the relevant provisions demonstrate that the Act does not give the chief firearms officer or the Registrar undue discretion Furthermore, the laws prohibitions and penalties are not regulatory in nature. They are not confined to ensuring compliance with the scheme, as was the case in Boggs v. The Queen, but stand on their own, independently serving the purpose of public safety. Nor are the prohibitions and penalties directed to the object of revenue generation (ii) Property and civil rights or criminal law? Albertas second major objection to classifying the 1995 gun control scheme as criminal law is that it is indistinguishable from existing provincial property regulation schemes such as automobile and land title registries. This argument overlooks the different purposes behind the federal restrictions on firearms and the provincial regulation of other forms of property. Guns are restricted because they are dangerous. While cars are also dangerous, provincial legislatures regulate the possession and use of automobiles not as dangerous products but rather as items of property and as an exercise of civil rights, pursuant to the provinces s. 92(13) jurisdiction The argument that the federal gun control scheme is no different from the provincial regulation of motor vehicles ignores the fact that there are significant distinctions between the roles of guns and cars in Canadian society. Both firearms and automobiles can be used for socially approved purposes. Likewise, both may cause death and injury. Yet their primary uses are fundamentally different. Cars are used mainly as means of transportation.

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] Danger to the public is ordinarily unintended and incidental to that use. Guns, by contrast, pose a pressing safety risk in many if not all of their functions Parliament did not enact the Firearms Act to regulate guns as items of property (iii) Undue intrusion into provincial powers? Alberta and the provincial interveners submit that this law inappropriately trenches on provincial powers and that upholding it as criminal law will upset the balance of federalism. Put simply, the issue is whether the law is mainly in relation to criminal law. If it is, incidental effects in the provincial sphere are constitutionally irrelevant. In our view, Alberta and the provinces have not established that the effects of the law on provincial matters are more than incidental. First, the mere fact that guns are property does not suffice to show that a gun control law is in pith and substance a provincial matter. Exercises of the criminal law power often affect property and civil rights to some degree: Attorney-General for British Columbia v. Attorney-General for Canada, [1937] A.C. 368 (P.C.). Second, the Act does not significantly hinder the ability of the provinces to regulate the property and civil rights aspects of guns Third, the most important jurisdictional effect of this law is its elimination of the ability of the provinces to not have any regulations on the ownership of ordinary firearms. The provinces argue that it is in their power to choose whether or not to have such a law. By taking over the field, the federal government has deprived the provinces of that choice. Assuming (without deciding) that the provincial legislatures would have the jurisdiction to enact a law in relation to the property aspects of ordinary firearms, this does not prevent Parliament from addressing the safety aspects of ordinary firearms. The double aspect doctrine permits both levels of government to legislate in one jurisdictional field for two different purposes Fourth, as discussed above, this law does not precipitate the federal governments entry into a new field. Gun control has been the subject of federal law since Confederation. This law does not allow the federal government to significantly expand its jurisdictional powers to the detriment of the provinces HELD: The licensing and registration provisions in the Firearms Act do not constitute an infringement of the jurisdiction of the Legislature of Alberta with respect to the regulation of property and civil rights pursuant to s. 92(13) of the Constitution Act, 1867. The Act is a valid exercise of Parliaments jurisdiction over criminal law pursuant to s. 91(27). The main issue here is _____________. In order to address this issue, we must engage in the division of powers analysis. There are two stages to this analysis, the first being to determine the pith and substance of the law. The second step is to classify that essential character by reference to the heads of power under the Constitution Act, 1867 in order to determine whether the law comes within the jurisdiction of the enacting government. Note, here, that the presumption of constitutionality means that [the party challenging the Act] is required to demonstrate that the Act does not fall within the jurisdiction of [the enacting body] (NS Board of Censors v. McNeil) STEP 1: Pith and Substance Analysis

- To determine the pith and substance, two aspects of the law must be examined: the purpose of the enacting body, and the legal effect of the law Purpose - In order to determine the validity of legislation X, first must identify its main purpose - To do this, we may exam: the preamble, the mischief that the law is trying to rid and, optimally, reference to extrinsic material (Morgentaler). - Of course, however, we must look to true purpose, not necessarily the stated purpose (Canadian Western Bank) - [Application] - Thus, it appears that the Acts overall goal is to _________. Effects - We must also look at its effects (legal and practical), in order to determine how the law will operate and how it will affect Canadians, e.g. how it will affect indiivduals rights and liabilities (Morgantaler) - Where the effects of the law diverge substantially from the stated aim, it is sometimes said to be colourable (Ibid) - [Application: try and say that the effects coincide with the purpose, and the enacting bodys attempt doesnt appear to be a colourable one e.g. in Chatterjee v Ontario (A-G), the purpose and effect of the impugned Act was to take profit out of crime] Conclusion - The [Act] is in pith and substance directed to _______.

[7]

DISTRIBUTION OF POWERS ANSWER STRUCTURE

STEP 2: Assignment to Heads of Power - The second step is to determine whether that matter comes within the jurisdiction of the enacting legislature. The heads of power in ss. 91 and 92 of the Constitution Act, 1867 must be analysed, and it must be determined what the matter is in relation to

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - The determination of which head of power a particular law falls under is not an exact science. In a federal system, each level of government can expect to have its jurisdiction affected by the other to a certain degree (i.e. incidental effects are permitted) (Papp v Papp). However, in light of the exhaustive principle, we must be able to characterize the law as falling in one of the heads in s 91 or 92. - In this case, the question is whether the law falls under ______ or the ______ heads of legislative power. - [This step often involves little more than a review of the relevant decisions and a recitation of the principles emerging from them. e.g., if its the criminal law power, define it; what are its elements? What do the cases say have to be established in order for a statute to be upheld under that power? Cite the most important cases here. One way to do it is first decide, in your head, which head it you will conclude the legislation falls under. Then, start off with the heads that it APPEARS might support it, then disregard and then show why those heads dont work by distinguishing the cases. Finish up by showing how it falls under the head in your head. Use the headings below to guide the analysis] [REMEMBER: (i) Where there is overlap between two heads of power, it is for the court to identify the DOMINANT FEATURE of the impugned statute. Although there may be incidental intrusion into another head over which the relevant government has no control, incidental intrusions are allowed (see, e.g. Chatterjee); (ii) Incidental intrusions are ok] Conclusion - The law is (intra/ultra) vires (Parliament/the provincial legislature) BONUS MARKS: Ancillary purpose (and the rational connection/necessary test) (if relevant) The double aspect doctrine Criteria of choice Exhaustive principle (law must be assignable to one of the heads of power) Singling out doctrine

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - Two issues: distribution of powers re: language and constitutional protection of language Distribution of powers - Not a head of power, and is not an independent matter of legislation - A law prescribing that a particular language or languages must/may be used in certain situations will be classified not as a law in relation to language, but as a law in relation to the institutions or activities that the provision covers Language of statutes Constitutional requirements - Only explicit guarantee of language rights in the Constitution Act, 1867 is contained in s 133 - S 133 only applies to legislative bodies and courts of the federal government and of Quebec, and requires that statutes of the federal Parliament and Quebec Legislature to be printed in both languages; it also permits either English or French to be used in debates in the Houses of the federal Parliament and Quebec Legislature; it requires English and French to be used in the records and journals to those houses [Note: doesnt apply to Legislatures and courts of any province other than Quebec]; - But see s 23 of the Manitoba Act, 1870 (use of English and French in Legislature and courts of Manitoba on similar terms to s 133) - The Charter of Rights, part I of the Constitution Act, 1982, includes as ss 16-23, a variety of language provisions - Ss 17-19 apply to New Brunswick, so that NB is now in a similar position to Quebec and Manitoba - Thus, the federal Parliament, the Quebec Legislature, the Manitoba Legislature and the New Brunswick Legislature are each subject to a constitutional requirement that their statutes must be printed and published in both English and French Quebecs Charter of the French Language - In A-G of Quebec v Blakie, it was decided that unofficial English translations did not meet the s 133 requirement. Enactment of the law in English and French was required Manitobas Official Language Act - That Act provided that the English language only shall be used in the records and journals of the Legislatures, and in pleading and process in Manitoba courts. In effect, an attempt to repeal most of s 23 of Manitoba Act. In Re Manitoba Language Rights case, held that statute was invalid. Incorporation by reference - General rule is that where a statute makes reference to another document, so as to incorporate it, then, if there is a constitutional requirement that the incorporating statute be in both languages, the requirement will apply to the incorporated document as well.

Charter of Rights and Freedoms


[1] LANGUAGE

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - But there are exceptions Delegated legislation - S 133 requirements, as a general rule, apply to delegated legislation as well as to statutes. - There are exceptions to this too. Language of courts Constitutional requirements - French or English may be used by any person in any pleading or process in or issuing from any Court of Canada, and in or from all or any Courts of Quebec: s 133 - See also s 23 of Manitoba Act re: Manitoba and s 19(2) of Charter re: New Brunswick same guarantee Language of process - Can be in either English or French Language of government S 16 of Charter: - S 133 (Constitution Act 1867) and s 23 (Manitoba Act) do not go beyond legislative bodies and courts. But s 16 and s 20 of Charter do - The section makes English and French the official languages of Canada and NB - Also confers English or French equality of statues as to their use in all institutions of Parliament and of the government of Canada S 20 of Charter: - s 16 doesnt deal with communications b/w government and public, but this section does - Imposes an obligation on government to provide bilingual services to the public Language of commerce - None of the language rights in the Constitution of Canada protects the use of the English or French language in commercial/private settings. But statutory language requirements may offend the guarantee of freedom of expression in s 2(b) of the Charter of Rights Language of education S 93, Constitution Act 1867 - Confers on provincial legislatures the power to makes laws in relation to education, and the ancillary power over language of instruction in the schools. But if a particular language of instruction was a right or privilege of separate schools in a particular province at the time of confederation, then the province would be disabled from compelling such schools to instruct in a different language S 23 of Charter - Section 23 confers upon citizens of Canada who are members of the English speaking minority in Quebec or the French speaking minority in the other provinces the right to have their children receive primary and secondary school instruction in the minority language in that province. This right is possessed by parents who fit into 1 of 3 categories: (1) The mother tongue of the parent: (2) The language of primary school instruction in Canada of the parent (3) The language of instruction in Canada of one child of the parent - There is a qualification to s 93 though. The right is not an absolute one (can be invoked only where numbers warrant)

[2]

ABORIGINAL AND TREATY RIGHTS

Federal legislative power s 91(24): - s 91(24) of Constitution Act, 1867 confers upon the federal Parliament the power to make laws in relation to Indians, and lands reserved for the Indians - Contains 2 heads: Indians and lands reserved for Indians (a) Indians: Includes status Indians (protected by the Indian Act), and non-status Indians not protected by that act although both are Indians for the purpose of this section. (b) Lands reserved for Indians: Includes land set aside as Indian reserves, and includes the huge area of land set aside by the Royal Proclamation of 1763 as reserved for the Indians, Charter of Rights - The Charter contains an equality guarantee. The Indian Act likely does not violate the Charter, by reason of its use of the word Indian Provincial legislative power - The general rule is that provincial laws apply to Indians and lands reserved for the Indians, so long as the law is in relation to a matter coming within a provincial head of power - BUT there are 5 exceptions to the general rule: (1) Singling out (2) Indianness (3) Paramountcy (4) Natural Resource Agreements (5) Section 35 Section 88 of the Indian Act - Section 88 makes clear that provincial laws of general application apply to Indians

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - The section makes no reference to lands reserved for the Indians, but it does extend to Indians on reserve - Section 88 operates as a federal adoption, or incorporation by reference, of provincial laws, making the provincial laws applicable as part of federal law - s 88 applies to provincial laws which affect Indianness by impairing the status or capacity of Indians (Dick v The Queen) - Note paramountcy and treaty exceptions Nature of aboriginal rights Recognition of aboriginal rights - Aboriginal rights that have not been extinguished are recognized by the common law and are enforceable by the courts. Guerin v The Queen is the leading case on this matter. - Sparrow follows Guerin, and recognized the aboriginal right of a member of the Musqueam Indian Band to fish for salmon in the Fraser River. Sparrow also recognized that in all dealings with aboriginal peoples, the Government has the responsibility to act in a fiduciary capacity, and also decides that aboriginal rights, including the fiduciary duty, are now constitutionally guaranteed through s 35 of the Constitution Act 1982 (this was the 1st s 35 case) Definition of aboriginal rights - Aboriginal RIGHTS are rights held by aboriginal peoples by virtue of the fact that aboriginal peoples were once independent, self-governing entities in possession of most of the lands now making up Canada - The test and definition developed in R v Van der Peet: (i) In order to be an aboriginal right, an activity must be an element of a practice, custom or tradition integral (i.e. sufficiently central) to the distinctive culture of the aboriginal group asserting the right [In order for the practice to be integral, the practice must be of central significance to the aboriginal society] (ii) The practice must have developed before contact, i..e before the arrival of Europeans in North America (iii) The practice could evolve over the years as the result of contact, but a practice that has evolved into modern forms must trace its origins back to the pre-contact period - The Van der Peet definition of aboriginal rights is based on the existence of an aboriginal practice before contact, meaning before the arrival of Europeans. This time frame doesnt work for Metis rights, because the Metis people didnt exist prior to contact. In R v Powley, Court held that, for Metis claimants of aboriginal rights, the focus on European contact had to be moved forward to the time of effective European control Aboriginal self-government - The aboriginal right of self-government must exist by virtue of the fact that aboriginal people were living in self-governing communities before the arrival of Europeans. - According to Pamajewon case, the aboriginal right of self-government extends only to activities that took place before European contact, and then only to those activities that were an integral part of the aboriginal society (i.e. must meet the Van der Peet test) - That test is overly strict, Hogg says Aboriginal title - Aboriginal TITLE is the right to exclusive occupation of land, which permits aboriginal owners to use the land for a variety of purposes - The SCC in Calder and Guerin recognize that aboriginal title survived European settlement and the assumption of sovereignty by the British Crown. The use and occupation of land by aboriginal people before the assumption of soverightny created an aboriginal title to land. - So, common law recognizes that aboriginal title, if not surrendered or lawfully extinguished, survived as a burden on the Crowns title (which the Crown mysteriously acquired to all land in Canada) - Aboriginal title is also protected by s 35 of the Constitution Act, 1982 - The leading case on aboriginal title is Delgamuukw v BC (sets out many rules re: aboriginal title) (see the summary in the book) - Aboriginal title is sui generis; there are a number of differences between aboriginal and non-aboriginal title (including the source of aboriginal title, the uses to which aboriginal title may be put, the fact that aboriginal title is inalienable, the fact that aboriginal title can only be held communally, and that aboriginal title is constitutionally protected) Extinguishment of aboriginal rights - Aboriginal rights (including aboriginal title) can be extinguished in 2 ways: (1) by surrender and (2) by constitutional amendment (note that it is now clear that it would be a breach of Crowns fiduciary duty to the aboriginal people to proceed with a constitutional amendment affecting aboriginal rights without at least the active participation of the affected aboriginal people) - Extinguishment, whether by voluntary surrender or constitutional amendment, will not be inferred from unclear language. Only a clear and plain intention to extinguish is accepted by courts (Sparrow) - Because of s 35, legislation cannot extinguish aboriginal rights, but it can regulate them, so long as the test of justification is passed Treaty rights - Protected by s 35, Constitution Act 1982 Definition - An Indian treaty is sui generis, and has a number of unique characteristics - Two leading cases on treaty definitions are Simon v The Queen and R v Sioui

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - This means that s 35 provides a constitutional guarantee of such rights (Sparrow), and s 35 has the effect of nullifying legislation that purports to abridge the guaranteed rights - But such rights are NOT absolute Section 25 - S 25 is part of Charter, and it is an interpretive provision, included to make clear that the Charter is not to be construed as derogating from any aboriginal treaty or other rights etc - In the absence of s 25, it would perhaps have been arguable that rights attaching to groups defined by race were invalidated by s 15 (equality clause) of the Charter

Interpretation of treaty rights - Must be interpreted liberally, and doubtful expressions resolved in favour of Indians - See R v Marshall as an example Extinguishment of treaty rights - Same way is extinguishing aboriginal rights: (1) voluntary surrender to the Crown; (2) constitutional amendment The need for constitutional protection - Aboriginal and treaty rights suffered from 4 serious infirmities prior to receiving constitutional protection: (1) Uncertainty of the precise legal status of the rights (2) Doctrine of parliamentary sovereignty which meant that aboriginal rights were vulnerable to change or abolition by the action of the competent legislative body (3) Equality, under the Charter, suggested that special status might be unconstitutional (4) Aboriginal and treaty rights could be modified or extinguished by constitutional amendment, whereby aboriginal peoples representatives were not entitled to participate in the decisive phases of the amending process (unlike now with s 35) - The Constitution Act of 1982 has taken steps to eliminate these 4 infirmities - See s 35, 25 and 35.1 Section 35 - The Constitution Act, 1982 has taken steps to eliminate some of the infirmities related to aboriginal and treaty rights. The section essentially gives constitutional recognition to aboriginal and treaty rights, and therefore protects them from legislative attack - Consider the various elements of the section independently Existing - Sparrow held that the word existing meant unextinguished. A right that was validly extinguished before 1982 was not protected by s 35 - While an aboriginal right could be extinguished by federal statute before 1982, a federal statute would have that effect only if the intention to extinguish was clear and plain. Recognized and affirmed - S 35 provides that existing aboriginal and treaty rights are recognized and affirmed

[3]

INTERPRETATION OF CHARTER

Expansion of judicial review New grounds for review - The major effect of the Charter has been the expansion of judicial review. The Charter adds a new set of constitutional provisions that will invalidate inconsistent laws - Judicial review is also more policy driven given the vagueness of the terms of the Charter Vagueness of concepts - Because of the vagueness of the Charter, the role of law, lawyers and judges in the public life of the country has greatly increased. - The SCC has willingly embraced new powers conferred on it by this vague - The period of judicial activist since 1982 has been described as the Charter revolution - But judicial review on Charter grounds rarely defeats a desired legislative objective. After a law is struck down by the Court, the mechanisms of ss 1 and 33 typically leave room for the law to be replaced with another version that still carries out the legislative objective, and most of the time a replacement law is in fact enacted The role of s 1 - Because of s 1, judicial review of legislation under the Charter of Rights is a 2 stage process. The first stage of judicial review is to determine whether the challenged law derogates from a Charter right (if it does not, then the review is over, and the law must be upheld). If the law does derogate from a Charter right, then the second stage is to determine whether the law is justified under s 1 as a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society Role of s 33 - The Charter includes, as s 33, an override power, which enables the Parliament or a Legislature to enact a law that will override the guarantees in s 2, and ss 7 15

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] Dialogue with legislative branch The idea of dialogue - The presence in the Charter of the power to override in s 33 means that most decisions striking down statutes on Charter grounds can be reversed by the competent legislative body. For example, a prohibition of the use of English in commercial signs that was struck down as a breach of freedom of expression was revived by the Quebec Legislature, invoking s 33 - A study published in 1997 showed that from the inception of the Charter, there had been 66 cases in which the SCC had struck down a law on Charter grounds. Of the 66 cases, all but 13 elicited some response from the competent legislative body, which illustrates that the decisions of the Courts usually leave room for a legislative response - It is helpful to think of the Courts Charter decisions, not as imposing a veto on desired legislative policies, but rather as starting a dialogue with the legislative branch as to how to best reconcile the individualistic values of the Charter with the accomplishment of social and economic policies for the benefit of the community as a while Second look cases - Mills case shows how concept of dialogue used to show deference to legislative decision. - Mills shows that the idea of dialogue indicates that when a legislature/Parliament has revised and re-enacted a law that the courts have found unconstitutional, the Court is likely to uphold the second attempt [Underlying this is the idea that, as the legislatures and Parliament represent the will of the people, they are in a better position to sort out such problems] - But there are examples of cases where courts have reviewed Parliament/ a legislatures second attempt at legislation, and concluded the law was still invalid. - Another way in which the concept of dialogue has affected the reasoning and results of constitutional cases is the SCCs willingness to suspend a declaration of invalidity after a finding that a law is unconstitutional. The dialogue concept rational in this case is simply that in many cases where the Court has found a law to be unconstitutional, the Court would prefer the legislature to design the appropriate remedy. - The principle of democracy encourages remedies that allow the democratic process of consultation and dialogue to occur. - Judicial respect for the autonomy of the other branches of government would also argue for restrain in crafting orders to compel the executive branch to rectify Charter breaches (i.e. Separation of powers) Political questions doctrine - This is a US doctrine (re: justiciability) that Canada has not accepted Characterization of laws - Two stages: (1) Determine whether the challenged law abridges a Charter right: a. First, characterize the challenged law, examining its purpose or effect b. Second, interpreted the language of the Charter of Rights to determine whether it has been abridged by the challenged law (2) S 1 analysis if applicable - The focus in this part is on (1)(a) - If the purpose of a law is to abridge a Charter right, then the law will be unconstitutional. If the effect of the law is to abridge a Charter right, then the law will be unconstitutional (unless it is saved by s 1) distinguish between purpose and effect Purpose or effect - A law will offend the Charter if either its purpose or its effects is to abridge a Charter right - Legislation with an invalid purpose cant be saved by s 1 (Big M Drug Mart) - BUT its the effect that is normally at issue Trivial effects - Where the effect of a law on a Charter right is trivial or insubstantial, there is no breach of the Charter (R v Jones) Interpretation of Charter Progressive interpretation - A constitution is likely to remain in force for a long time and is difficult to amend, which calls for a flexible interpretation, so that the constitution can be adapted over time to changing conditions - A flexible interpretation that allows the constitution to be adapted over time to changing conditions is what progressive interpretation refers to Generous interpretation - Avoiding a narrow and technical construction of the constitution, by giving it a large and liberal interpretation Purposive interpretation Process as purpose - Is a process based theory suitable for guiding J.R.? I.e. focussing on the fairness of procedures taken rather than substantive outcomes. Hogg thinks not. Sources of interpretation - There are a number, including some international instruments, legislative history and, of course, precedent

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] Priority between federal and Charter grounds - When a law is challenged on both federal and Charter grounds, it is the federal ground that is the more fundamental of the two, and that ought to take priority over the Charter ground - But there are cases which deviated from that position. Still, Hogg says that this is a requirement for a body/person who is exercising statutory authority to be bound by the Charter. One deviation was in Eldridge, where it was held that the Charter was applicable despite the absence of any power of compulsion (Hogg disagrees w/ the case but Hogg isn`t the law). - So, if there is an entity exercising statutory powers of compulsion, then they will be subject to Charter (see, for e.g., Slaight): The result of the decision in Slaight is that some adjudicative bodies, such as administrative tribunals and labour adjudicators, are bound by the Charter, Governmental action - If an entity is part of the government, then the Charter will ordinarily apply to all of its actions. - Charter applies to government action taken under prerogative powers (common law powers possessed only by government) and common law powers possessed by everyone - Institutions controlled by government (agents): Here, not governmental actors; just because an organization is created by statute, relies on government funding for its survival, and serves a public purpose does not render them a government body. The government must have some type of direct control in shaping the organizations policies for it to be considered a government body (McKinney v University of Guelph Court held that universities are not subject to the Charter, but colleges are) - Entities implementing government programs: Entities will be subjected to the Charter not if they are characterized as government, but ALSO if they perform an act properly characterized as a government activity. This analysis involves looking not at the organization itself, but at the specific act which the organization performs. If the act is found to be an act of government, the organization is subject to the Charter with regards to that act (see Eldridge) Government inaction - S 32 provides that the Charter applies to all matters within the authority of the federal and provincial governments. If a Charter right or freedom requires the fulfilment of a positive obligation, the Charter will apply to inaction on the part of the government with jurisdiction to meet that obligation - Vriend case - contains discussion of the inaction issue in the context of equality rights Courts - The Charter appears to apply to courts (see BC Government Employees Union v BC), i.e. a court falls under the term government - But in Dolphin Delivery, SCC stated that courts not part of government for purposes of s 32(1) of Charter (but has since been generally ignored) Common law

[4]

APPLICATION OF CHARTER: s 32, Constitution Act, 1982

Who is protected by the Charter? - Whether one can benefit depends on the wording of the right - Corporations may benefit from many rights; e.g, section 2, in guaranteeing the fundamental freedoms, speaks of everyone and has been interpreted to extend to corporations. By contrast, Section 15 applies to "every individual", and has been restricted to only natural persons. But even some of the rights that have been framed in terms of everyone have been held to be inapplicable to corporations because of their nature. And so, the corporations can enjoy freedom of expression, but not freedom of religion. Burden of rights - Who is bound by the Charter? See the wording of s 32 - The section explicitly says that the Charter applies to the Parliament and government of Canada AND to the legislature and government of each province Parliament or legislature - The reference to Parliament and provincial legislatures in s. 32 of the Charter means that when laws are passed by those bodies, they must comply with the Charter; any statute enacted that is inconsistent with the Charter will be outside the power of the enacting body and will be invalid What about statutory authority - Any body exercising statutory authority, for example ministers, officials, municipalities, admin tribunals, is bound by the Charter. - Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter. Thus, limitations on statutory authority which are imposed by the Charter will flow down the chain of statutory authority and apply to regulations, by-laws, orders, decisions and ALL OTHER ACTION (whether legislative, administrative or judicial) which depends for its validity on statutory authority. - There are many examples which illustrate that bodies or persons possessing statutory authority are often independent of the federal or provincial governments. - The Charter applies to the exercise of statutory authority regardless of whether the actor is part of the government or is controlled by the government it is the exertion of a power of compulsion granted by statute that causes the Charter to apply.

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - In Canada, if the applicable law is a rule of the common law, the Charter does not apply; if it is a rule of statute, it does apply (Dolphin Delivery) - But it does influence the way the Charter is interpreted, and therefore the Charter indirectly applies to the c/l (see Hill v Church of Scientology) Private action - The Charter regulates the relations b/w government and private persons, but it does not regulate the relations between private persons and private persons - There are critiques of this, but Hogg thinks its an appropriate setup Eldridge v BC FACTS: A group of deaf individuals sought a declaration that the failure to provide public funding for sign language interpreters for the deaf when they received medical services violated s.15 of the Charter. ISSUE: Is the charter enforceable against hospitals, particularly with regards to the way they deliver medical services? REASONING: There is no question that the Charter applies to provincial legislation. There is no doubt that the Charter also applies to action taken under statutory authority A primary question in the present case is whether the alleged breach of s. 15(1) arises from the impugned legislation itself or from the actions of entities exercising decision-making authority pursuant to that legislation. It is first necessary to decide whether the legislation impugned in the present appeal can be interpreted in conformity with the Charter. Counsel for the appellants proposed an alternative argument akin to the framework set out in Slaight. She suggested that both statutes could be read to conform with s. 15(1). Under this theory, it is not the legislation that is constitutionally suspect, but rather the actions of delegated decision-makers in applying it Assuming that the failure to provide sign language interpreters in medical settings violates s. 15(1) of the Charter in some circumstances, I do not see how the Medical and Health Care Services Act can be interpreted as mandating that result (i.e. Counsel for appellant is right) The issue is whether the Charter applies to the body employing the Act. Typically, courts seek to determine if the entity (e.g. hospital) is itself a government body for the purposes of s. 32. This involves an inquiry into whether the entity can, either by its very nature or by virtue of the degree of governmental control exercised over it, properly be characterized as government. Hospitals cannot be characterized as government because they have autonomy as to who sits on their Boards, and the manner in which they hire staff and deliver health care. HOWEVER, an entity may be found susceptible to Charter analysis with respect to a particular ACTIVITY that can be ascribed to the government -- This demands not an examination of the entity but the act itself. If the act is governmental in nature - for example, the implementation of a specific statutory scheme or a government programthe entity performing it will be subject to review under the Charter only in respect of that act. Health care is a keystone of government policy, so any organization providing health care (including hospitals) must do so in a way that conforms to Charter provisions. RATIO: Entities will be subjected to the Charter not only if they are characterized as government, but ALSO if they perform an act properly characterized as a government activity. This analysis involves looking not at the organization itself, but at the specific act which the organization performs. If the act is found to be an act of government, the organization is subject to the Charter with regards to that act. Greater Vancouver Transportation Authority v Canadian Federation of Students The Charter applies not only to Parliament, the legislatures and the government themselves, but also to all matters within the authority of those entities There are two ways to determine whether the Charter applies to an entitys activities: by enquiring into the nature of the entity or by enquiring into the nature of its activities. If the entity is found to be government, either because of its very nature or because the government exercises substantial control over it, all its activities will be subject to the Charter.

[5]

OVERRIDE OF RIGHTS: s 33

- Through the use of this override power, the Parliament or a Legislature is enabled to enact a statute limiting (or abolishing) one or more of the rights or freedoms guaranteed by s 2 or ss 7 15 - S 33(3) is a sunset clause, under which an express declaration will automatically expire at the end of five years. Section 33(4) permits the express declaration to be reenacted - The declaration must be express to override rights - The declaration must refer specifically to the Charter provision that is to be overridden; a declaration that doesnt refer to any Charter provision would not be effective - More than one provision, or even all, can be referred to (Ford) - The declaration must be specific as to the statute, but blanket declarations, encompassing omnibus statutes, are allowed (Ford) - The declaration cannot be retroactive (Ford) Ford v Quebec FACTS: Quebec, the only province to oppose the creation of the Charter, wanted to create an automatic rule that would have ALL their legislation operate notwithstanding the charter.

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] ISSUE: Whether legislation overriding multiple sections of the Charter is acceptable; whether an all-encompassing (omnibus) use of the override is valid (obiter); and whether a retrospective override clause is acceptable (obiter) REASONING: SCC held that s. 33 declaration is sufficiently express if it refers to the number of the section, subsection or paragraph of the Charter which contains the provision or provisions to be overridden. The requirement (suggested by the CoA) of an apparent link or relationship between the overriding Act and the guaranteed rights or freedoms to be overridden seems to be a substantive ground of review, which is unacceptable SCC held that ominous reference to rights was sufficient; not reasonable to require a reference that was particular to the statute containing the declaration, because a legislative body might not be in a position to judge with any degree of certainty what provisions of the Charter might be successfully invoked against various aspects of the Act in question SCC held normal presumption against retroactivity should be applied to the language of s.33, and the section should be construed as permitting prospective derogation only. RATIO: The court held that Quebec could enact this blanket legislation immunizing all their legislation from Charter scrutiny, under section 33 (need express language such that the infringement on Charter rights would be sufficiently drawn to public attention). However Quebec could not do this retroactively (would not apply to legislation already in effect prior to the omnibus legislation). COMMENTS: Despite ease with which s. 33 may be invoked, use of the override would be politically crippling for most governments. Mechanism is simple but the reality political costs of invoking s.33 will keep governments in check. If the federal government had used s. 33 selectively since 1982, it might be acceptable to use it now. But we have created a culture in which the use of the clause now would be met with political disapprobation.

Freedom of religion - Leading case is Big M Drug Mart - Definition of religion offered in this case: The essence of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination - s 2(a) protects religious practices and beliefs Sunday observance/Sunday shopping cases - Issue in these cases was whether people should have the ability to make a profit on Sundays; challenges were brought by companies who wished to open their stores on Sundays in order to maximize profits. - R v Big M Drug Mart statute was struck down because its PURPOSE was to compel the observance of Christian Sabbath, which is not compatible w/ 2(a). The Lords Day Act, in its purpose and effects, infringes this guarantee, and is not justifiable under s. 1. The ratio of Big M is this: The guarantee of freedom of conscience and religion prevents the government from compelling individuals to perform or abstain from performing otherwise harmless acts because of the religious significance of those acts to others. - But See Edwards Books case. The SCC upheld a law that prohibited retail stores from opening on Sunday based on its secular purpose. The law was upheld despite its EFFECT of imposing economic burden on those retailers who observed Sabbath on a day other than Sunday. The secular purpose of providing a common pause day was sufficiently important to justify a limit on freedom of religion. The ratio of Edwards Books is this: Religious freedom is not necessarily infringed when a statutory obligation coincides with the dictates of a particular religion. When freedom of religion IS infringed, it may be a justifiable limit in light of (1) an ameliorative objective held by the government, and (2) evident efforts by the government to accommodate the rights of those affected - In short, the Sunday closing cases establish that there is a constitutional obligation under s 2(a) to accommodate those persons whose religion calls for observance of a Sabbath on a day other than Sunday

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FREEDOM OF RELIGION: s 2(a)

- s 2(a) guarantees everyone the fundamental freedom of conscience and religion Freedom of conscience - S 2(a)s reference to conscience would protect systems of belief which are not theocentric (centred on a deity), and which are not characterized as religions for that reasons - Not important Freedom of Religion

Tolerance of other religious practices - Big M Drug Mart indicated that freedom of religion would not protect minority religious groups in such practices which injure his or her neighbours. But that has been overruled. - The idea that freedom of religion authorizes religious practices only so far as they do not injure others has been abandoned by the SCC in favour of an unqualified right to do anything that is dictated by a religious belief (BR v Childrens Aid Society). This

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] case involved a law that said that child must have blood transfusion if life in danger. Court said this violates s 2(a). HOWEVER, the law was upheld under s 1. - In Ross v NB School District, the SCC again held that a damaging practice was protected by freedom of religion (namely the dissemination of the opinion that Christian civilization was being destroyed by an international Jewish conspiracy). HOWEVER, part of the order could be justified under s 1 as a measure to remedy an anti-semetic environment in the school (the order being moving him to a non-teaching position). - The ambit of s 2(a) was expanded even more in Syndicat Northwest v Amselem. The Court defined protected religious practice in an extraordinarily broad fashion: the practice need not be part of an established belief system, or even a belief system shared by some others; it could be unique to the claimant. The practice need not be perceived as obligatory by the claimant; voluntary expressions of faith were equally protected. All that was necessary to qualify a practice for Charter protection was that the claimant sincerely believed that the practice was of religious significance. The test is purely subjective. And, the individual also has a right to ACT on those views - In Multani, the issue was whether a boy was constitutionally entitled to wear a kirpan to his school in the face of a school board regulation that prohibited students from bringing weapons and other dangerous objects to school. All that the student had to show was that his personal and subjective belief in the religious significance of the kirpan is SINCERE, which he did. [Note: It seems that while s 2(a) is very broad, s 1 cuts back its scope, particularly where s 2(a) is being relied upon by the applicant in a situation where they, themselves, are at risk of harm, or there is harm to others, whether in the form of physical or psychological harm] Waiver of religious practice - Bruker v Marcovitz indicates that you can contract to withhold a religious practice/belief, although Syndicat Northwest indicates you cannot Religion in public schools - See Zylbeerberg and Canadian Civil Liberties Association cases it is unconstitutional to impose Christian beliefs on all students, even if non-Christian students can opt out of religious practices Syndicat Northcrest v Amselem (New definition of religion provided i.e. Court sets out the test for determining whether what a claimant claims is a religious belief or practice pursuant to s (2)(a) is in fact protected by that section) FACTS: The cases which are the subject of this appeal involve a religious claim by the appellants for the setting up of a succah for nine days a year in the pursuit of their religious beliefs on their co-owned property under the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (the Quebec Charter). The Quebec courts denied the claim ISSUES: (1) Whether the clauses in the by-laws of the declaration of co-ownership, which contained a general prohibition against decorations or constructions on ones balcony, infringe the appellants freedom of religion protected under the Quebec Charter; (2) if so, whether the refusal by the respondent to permit the setting up of a succah is justified by its reliance on the co-owners rights to enjoy property under s. 6 of the Quebec Charter and their rights to personal security under s. 1 thereof; and (3) whether the appellants waived their rights to freedom of religion by signing the declaration of co-ownership. REASONING: Definition of freedom of religion - What is the definition and content of an individuals protected right to religious freedom under the Quebec (or the Canadian) Charter? This Court has long articulated an expansive definition of freedom of religion, which revolves around the notion of personal choice and individual autonomy and freedom - Dickson CJ in Big M first defined religion: The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination - Must focus on subjective perceptions of religion determining what the individual sincerely believes - Our Courts past decisions and the basic principles underlying freedom of religion support the view that freedom of religion consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials. Both obligatory as well as voluntary expressions of faith should be protected - A claimant need not show some sort of objective religious obligation, requirement or precept to invoke freedom of religion. Such an approach would be inconsistent with the underlying purposes and principles of the freedom emphasizing personal choice as set out by Dickson C.J. in Big M and Edwards Books. - That said, while a court is not qualified to rule on the validity or veracity of any given religious practice or belief, or to choose among various interpretations of belief, it is qualified to inquire into the sincerity of a claimants belief. The courts role in assessing sincerity is intended only to ensure that a presently asserted religious belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. - Because of the vacillating nature of religious belief, a courts inquiry into sincerity, if anything, should focus not on past practice or past belief but on a persons belief at the time of the alleged interference with his or her religious freedom

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - Expert evidence not required: Religious belief is intensely personal and can easily vary from one individual to another. Requiring proof of the established practices of a religion to gauge the sincerity of belief diminishes the very freedom we seek to protect - Summary of TEST: at the first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court that: (1) He or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individuals spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials or expert testimony; and (2) He or she is sincere in his or her belief. - Only then will freedom of religion be triggered. Infringement of religious freedom - No right, including freedom of religion, is absolute - Section 2(a) of the Canadian Charter prohibits only burdens or impositions on religious practice that are non-trivial. - So two questions must be asked: whether an individuals freedom of religion has been infringed based on whether the claimant can demonstrate he or she sincerely believes in a practice or belief that has a nexus with religion; second, whether the impugned conduct/legislation interferes with the individuals ability to act in accordance with that practice or belief in a manner that is non-trivial - Note, however, even if the claimant successfully demonstrates non-trivial interference, religious conduct which would potentially cause harm to or interference with the rights of others would not automatically be protected. Application to the facts - All of the appellants have successfully implicated freedom of religion: The trial judges approach to freedom of religion was incorrect. First, he chose between two competing rabbinical authorities on a question of Jewish law. Second, he seems to have based his findings with respect to freedom of religion solely on what he perceived to be the objective obligatory requirements of Judaism, thus failing to recognize that freedom of religion under the Quebec (and the Canadian) Charter does not require a person to prove that his or her religious practices are supported by any mandatory doctrine of faith. On the issue of sincerity, the trial judge correctly concluded that the appellant A sincerely believed that he was obliged to set up a succah on his own property. The appellants K and F submitted expert evidence of their sincere individual belief as to the inherently personal nature of fulfilling the commandment of dwelling in a succah. Such expert testimony, although not required, suffices in positively assessing the sincerity and honesty of their belief. - The infringement of such a belief by restricting the creation of succahs is non-trivial: It is evident that in respect of A, the impugned clauses of the declaration of co-ownership interfere with his right in a substantial way, as a prohibition against setting up his own succah obliterates the substance of his right. In the case of K and F, they have proven that the alternatives of either imposing on friends and family or celebrating in a communal succah as proposed by the respondent will subjectively lead to extreme distress and thus impermissibly detract from the joyous celebration of the holiday Waiver - Dalphond J. held, and the respondent contends, that the appellants had waived their rights to freedom of religion or had implicitly agreed with the terms of the by-laws when they signed the declaration of co-ownership, and that the appellants must comply with the impugned provisions of the Sanctuaires by-laws - Whether one can waive a constitutional right like freedom of religion is a question that is not free from doubt - But I need not explore that question in this case. I say that because, even assuming that an individual can theoretically waive his or her right to freedom of religion, I believe that a waiver argument, or an argument analogous to waiver, cannot be maintained on the facts of this case for several reasons in short, they did not voluntarily, clearly and expressly waiver their rights to freedom of religion; further, it cannot be said that the claimants had full knowledge that signing the co-ownership agreement would result in the waiver of their rights. HELD: Based on the foregoing analysis, I find that the impugned provisions in the declaration of co-ownership prohibiting constructions on the appellants balconies infringe the appellants freedom of religion under the Quebec Charter. The appellants are thus legally entitled to set up succahs COMMENT: There was no s 1 analysis, because this case occurred in Quebec. Quebecs Charter doesnt have that section. Reference re: Same Sex Marriage Does the Freedom of Religion Guaranteed by Section 2(a) of the Charter Protect Religious Officials From Being Compelled to Perform Same-Sex Marriages Contrary to Their Religious Beliefs? - The concern here is that if the Proposed Act were adopted, religious officials could be required to perform same-sex marriages contrary to their religious beliefs. - If a promulgated statute were to enact compulsion, we conclude that such compulsion would almost certainly run afoul of the Charter guarantee of freedom of religion, given the expansive protection afforded to religion by s. 2(a) of the Charter. - The right to freedom of religion enshrined in s. 2(a) of the Charter encompasses the right to believe and entertain the religious beliefs of ones choice, the right to declare ones religious beliefs openly and the right to manifest religious belief by worship, teaching, dissemination and religious practice. - The performance of religious rites is a fundamental aspect of religious practice. It therefore seems clear that state compulsion on religious officials to perform same-sex

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter. Alberta v Hutterian Brethren of Wilson Colony FACTS: Until May 2003, the Registrar of Motor Vehicles allowed licences without photos to be issued to persons who objected to having their photograph taken on religious grounds. In 2003 this exemption was removed via the Operator Licensing and Vehicle Control Regulation, Alta. Reg. 137/2003, made under the Traffic Safety Act, R.S.A. 2000, c.T-6. According to the government, the universal photo requirement was adopted to minimize identity theft arising from the use of drivers licences. To carry out this objective, all photos taken for drivers licences were placed in a facial recognition bank. Hutterites, including the members of the Wilson Colony in southern Alberta, believe that it is contrary to the Second Commandment to have their photo willingly taken. Following 2003, they proposed that they be issued licences without photos, marked Not to be used for identification purposes. The government did not accept this proposal, and suggested two alternatives: (1) licences would display a photo but be carried in a sealed envelope indicating they were the property of Alberta, or (2) licences would be photo-less, but digital photos of Hutterite drivers would be placed in the facial recognition bank. The governments proposals were said to be aimed at minimiz[ing] the impact of the universal photo requirement on religious beliefs by removing the need for Colony members to have any direct contact with the photos (at para. 12), but members of the Wilson Colony rejected the proposals on the basis that the act of taking the photos was itself a violation of the Second Commandment ISSUE: Freedom of religion and the nature of the limit on s 2(a) right; Is the limit justified under s 1? REASONING: Freedom of religion and nature of limit - The members of the Colony believe that permitting their photo to be taken violates the Second Commandment - Given these beliefs, the effect of the universal photo requirement is to place Colony members who wish to obtain drivers licences either in the position of violating their religious commitments, or of foregoing drivers licences - An infringement of s. 2(a) of the Charter will be made out where: (1) the claimant sincerely believes in a belief or practice that has a nexus with religion; and (2) the impugned measure interferes with the claimants ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial (i.e. whether the claimants religious beliefs or conduct might reasonably or actually be threatened): Syndicat Northcrest v. Amselem - The first part was conceded, and the second part, by lower courts, was assumed, so move on to s 1 analysis Section 1 analysis

Is the limit prescribed by law? - Although the limit was set out in a regulation rather than primary legislation, it is still prescribed by law Is the purpose of the limit pressing and substantial? - The purpose of the law is maintaining integrity of the drivers licensing system in a way that minimizes the risks of identity theft. - This is a goal of pressing and substantial importance, capable of justifying limits on rights. Proportionality test (1) Is the limit rationally connected to the purpose? The Province must show that the universal photo requirement is rationally connected to the goal of preserving the integrity of the drivers licensing system by minimizing the risk of identity theft through the illicit use of drivers licences. The government put forward evidence to show that the universal photo requirement is more effective in preventing identity theft than a system that grants exemptions, and so it is rationally connected (2) Does the limit minimally impair the right? In making this assessment, the courts accord the legislature a measure of deference. The evidence discloses no alternative measures which would substantially satisfy the governments objective while allowing the claimants to avoid being photographed. All other options would significantly increase the risk of identity theft using drivers licences. The measure seeks to realize the legislative goal in a minimally intrusive way (3) Is the law proportionate in its effect? In other words, when one balances the harm done to the claimants religious freedom against the benefits associated with the universal photo requirement for drivers licences, is the limit on the right proportionate in effect to the public benefit conferred by the limit? a. Salutary effects: A couple of salutary effects were raised on evidence, the most important being the enhancement of the security and integrity of the drivers licensing scheme. Internal integrity of the system would be compromised without this requirement. The requirement of a photo on a drivers licence serves the additional purpose of assisting police officers in reliably identifying drivers at the roadside. b. Deleterious effects: Because religion touches so many facets of daily life, and because a host of different religions with different rites and practices coexist in our society, it is inevitable that some religious practices will come into conflict with laws and regulatory systems of general application. The bare assertion by a claimant that a particular limit curtails his or her religious practice does not, without more, establish the seriousness of the limit for purposes of the proportionality analysis. We must go further and evaluate the degree to which the limit actually impacts on the adherent. The Charter guarantees freedom of religion, but does not indemnify practitioners against all costs incident to the practice of religion.

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] HERE, is not a case like Edwards Books or Multani where the incidental and unintended effect of the law is to deprive the adherent of a meaningful choice as to the religious practice. On the evidence before us, that cost does not rise to the level of depriving the Hutterian claimants of a meaningful choice as to their religious practice, or adversely impacting on other Charter values. The law does not compel the taking of a photo. It merely provides that a person who wishes to obtain a drivers licence must permit a photo to be taken for the photo identification data bank. Driving automobiles on highways is not a right, but a privilege. While most adult citizens hold drivers licences, many do not, for a variety of reasons. c. Weighing the salutary and deleterious effects: Balancing the salutary and deleterious effects of the law, I conclude that the impact of the limit on religious practice associated with the universal photo requirement for obtaining a drivers licence, is proportionate. HELD: I conclude that the limit on the Colony members freedom of religion imposed by the universal photo requirement for holders of drivers licences has been shown to be justified under s. 1 of the Charter - To be protected under s 2(b), the relevant activity must be an expression. An expression is an activity which attempts to convey meaning (R v Keegstra; Irwin Toy). - There isnt much activity that ISNT included in this definition. But what is definitely excluded is that which is purely physical and does not attempt to convey meaning (Irwin Toy) Criminal expression - Solely because activities have been made subject of criminal offences doesnt mean they arent protected by s 2(b) (Keegstra) (e.g. hate propaganda offences limits s 2(b), but has been saved under s 1) Violence - Expressive activity that takes the form of violence is not protected (Irwin Toy) Content neutrality - The content of a statement cannot deprive it of the protection accorded by s 2(b) no matter how offensive it may be (e.g. Keegstra = SCC held that the promotion of hatred against Jews is protected by s 2(b)) - Deliberate falsehoods are protected by s 2(b) (see R v Zundel; R v Lucas) - The implication of this is that s 2(b) extends to much activity that isnt worthy of constitutional protection Regulating time, manner and place of expression - The least severe form of restriction on expression is the regulation of the time, manner and place of expression. Because such restrictions do not regulate the CONTENT of expression, a court would likely uphold the impugned law under s 1 - But the regulation of time, manner and place can be so broad as to amount to an unacceptable restriction on expression (Ramsden v Peterborough) - Note: for regulation the place of expression, regulating private space is not subject to Charter review. For regulating expression in public space, see access to public property below for a specific test to see if the Charter protects expression there. Language - Freedom of expression includes the freedom to express oneself in the language of ones choice (Ford v Quebec)

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FREEDOM OF EXPRESSION: s 2(b) Charter

- Section 2(b) guarantees everyone the fundamental freedom of freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication - For all Charter rights, there is a 2 stage process: first, you must ask whether the law (or action) has the purpose or effect of limiting the relevant right; second, the issue is whether the law can be upheld under s 1 if there is an infringement. But for s 2(b), because of how broadly it has been interpreted, in most cases it is easy to conclude that the impugned law does limit s 2(b). The issue generally is s 1. Reasons for protecting expression - There are a number of rationales, including: its role as an instrument of democratic government; its role as an instrument of truth; the instrument of personal fulfilment. Irwin Toy accepted each of these reasons for protecting freedom of expression - The breadth of this right is entailed by acceptance of the personal fulfilment rationale (e.g. R v Sharpe: there was a constitutional challenge to the offence of possession of child pornography; the SCC acknowledged that such material made no contribution to democratic government and made no contribution to the search for truth, but the Court held that it should be constitutionally protected because of its role as an instrument of personal fulfilment) Meaning of expression Definition of expression

Commercial expression Protection of commercial expression - Commercial expression is constitutionally protected (Ford v Quebec) - Commercial expression, of which the most important example is advertising, is expression designed to promote the sale of goods and services, and is protected

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - The tort of defamation provides a civil remedy for a person whose reputation has been damaged by false statements made by the defendants - In Hill v Church of Scientology, the SCC held that false and injurious statements are not deserving of much protection Pornography - The expression cases in the SCC make clear that pornography, including obscenity, is protected expression - R v Butler: The SCC held that the prohibition of obscenity in the CC offended s 2(b); however, the Court held that the prohibition could be upheld under s 1. - See also R v Sharpe for the constitutionality of child pornography law - Many provinces confer a power on a board to censor, or deny approval, to exhibit or distribute a film that is regarded as pornographic. This kind of censorship is the most severe kind of limit on freedom of expression. Can such limits be justified under s 1? If the power of censorship granted extends to material that would not be obscene under the Butler test, then it likely will fail s 1 Access to public property - First, because the Charter does not apply to private action, s 2(b) confers no right to use private property as a forum of expression. With respect to PUBLIC property, since the Charter applies to governmental action, s 2(b) is potentially applicable - General rule (and if the circumstances are appropriate), is that the right to public property is protected for expression purposes (Committee for the Cth of Canada v Canada; Ramsden v Peterborough) - The Montreal v 2952-1366 Quebec case is the authority for the applicability/scope of the right: A strip club in Mtl set up a loudspeaker at its street entrance which it used to broadcast music and commentary that accompanied the show within. The club was charged under a by law that prohibited noise produced by sound equipment that could be heard outside a building. The broadcast conveyed a message about the show in the club, and so that was an expression; because the transmission was transmitted onto public property (the street), that was prohibited by the by law. The by law was challenged. In determining whether the expression was protected, the Court formulated a test for the application of s 2(b) on public property: ask....whether the public place is one where one would expect that expression in that place does not conflict with the purposes which s 2(b) is intended to serve, namely: (1) democratic discourse (2) truth finding and (3) self fulfilment Access to courts - Remember that freedom of press is explicitly guaranteed in s 2(b) Restrictions on reporting

Advertising restrictions - E.g. Irwin Toy: The SCC upheld a law that prohibited all commercial advertising directed at children under 13 (the protection of a particularly vulnerable group was a sufficiently important purpose to be upheld under s 1) - E.g. Rocket v Royal College of Dental Surgeons: Dentists were prohibited from advertising their services, and the restriction was struck down as being overly broad -E.g. RJR Macdonald v Canada AG: MacDonald (Tobacco Company) disputed legislation involving ban on tobacco advertising. All parties accepted that legislation breached s. 2(b). The court held that there was enough evidence to show a rational connection between an advertising ban and the objective of reducing smoking, but that there is no rational connection between the general ban of ads, and a decreasing consumption of cigarette smoke. But Court could not accept that a total ban on all forms of advertising, including purely informational advertising, was the least drastic means of accomplishing the objective, thus failing on the minimum impairment limb. Majority held that the legislation would not have breached freedom of expression had it been targeted at things like recruitment of new smokers or young people or association of smoking with things cool/hip (delineated categories, rather than allencompassing ban). Because it was a general ban, the majority held that it overly impaired 2(b) freedom. Commercial signs - Commercial signs are protected by s 2(b) - R v Guignard: A municipal by law prohibited advertising signs and billboards except in industrial zones of the municipality. The SCC held that this infringed Gs right to put up a sign on his property, and the limit could not be justified under s 1 (the Court decried the law as arbitrary and disproportionate to any benefit that it secures for the municipality) Picketing - There is a communicative element to a picket line, and therefore it constitutes expression w/in s 2(b) (Dolphin Delivery) - See also Vancouver Courthouse: Injunction issued to prohibit picketing of the courts. SCC held that the injunction was a limit on freedom of expression, but could be justified by s 1. - See also UCFW v Kmart; Pepsi Cola Canada v RWDSU Hate propaganda - Hate propaganda is material that promotes hatred against minority groups - R v Keegstra: K, who had been found guilty of making anti-semetic remarks to his students, had engaged in constitutionally protected activity, the SCC held. But the Court went on to uphold the criminal offence under s 1 Defamation

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - Freedom of process includes the freedom to publish reports of proceedings in court. But this isnt an unqualified right (e.g. there can be restrictions where the purpose of the restriction is to protect the identity of complainants in sexual assault cases: Canadian Newspapers Co v Canada) - The relevant test/standard to be applied in these types of cases is that court proceedings are to be open UNLESS disclosure would subvert the ends of justice or unduly impair its proper administration (Toronto Star Newspapers) Restrictions on access - Freedom of the press also includes the right to be present in court (Edmonton Journal v Alta) - In Re Vancouver Sun, the SCC emphasized that the open court principle was guaranteed by s 2(b), and it could be limited by s 1 only if the standards of justification in Dagenais and Mentuck were satisfied Montral (City) v. 2952-1366 Qubec Inc FACTS: This appeal concerns the power of the city of Montral (City) to prohibit noise produced in the street by a loudspeaker located in the entrance of an establishment ISSUE: Whether the provisions of the by-law are constitutionally invalid REASONING: A. Does Article 9(1) of the by-law infringe s 2(b) of the Charter? - The answer to this question depends on the answers to three questions (see Irwin Toy): (1) First, did the noise have expressive content, thereby bringing it within s. 2(b) protection? YES. The fact that the message may not, in the view of some, have been particularly valuable, or may even have been offensive, does not deprive it of s. 2(b) protection. Thus, it is presumptively protected by s 2(b). (2) Second, if so, does the method or location of this expression remove that protection? Expressive activity may fall outside the scope of s 2(b) because of how or where it is delivered. While all expressive content is worthy of protection (see Irwin Toy, at p. 969), the method or location of the expression may not be. This case raises the question of whether the location of the expression at issue causes the expression to be excluded from the scope of s. 2(b). The question here is whether s. 2(b) of the Canadian Charter protects not only what the appellants were doing, but their right to do it in the place where they were doing it, namely a public street. Regardless of the fact that the government owns and hence controls its property, it is asserted, many government places are essentially private in use. TEST: The basic question with respect to expression on governmentowned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is the activity?] Application: Amplified emissions of noise from buildings onto a public street could further democratic discourse, truth finding and self-fulfilment. Here, there is nothing to suggest that to permit this medium of expression would subvert the values of s. 2(b) (3) Third, if the expression is protected by s. 2(b), does the By-law infringe that protection, either in purpose or effect? - Here, the purpose of the By-law is benign. However, its effect is to restrict expression. It follows that the By-law has the effect of restricting expression which promotes one of the values underlying s. 2(b) of the Canadian Charter - We conclude that the Citys ban on emitting amplified noise constitutes a limit on free expression under s. 2(b) of the Canadian Charter B. Is the limit justified under s 1 of the Charter? - Onus is on the City to show that the limit is directed at a pressing and substantial objective, and that the limit is proportionate in the sense of being rationally connected to the objective, impairing the right to freedom of expression in a reasonably minimal way, and having an effect in terms of curtailment of the right that is proportionate to the benefit sought: R. v. Oakes (1) Objective: Pressing and substantial? Yes. Combating noise pollution is the objective. This is serious problem in urban centres (2) Proportionality assessment As background to this stage, note the following: Proportionality is concerned with the means chosen to meet the objective. Here the City chose a two-pronged attack on noise pollution. First, it prohibited noises exceeding a stipulated degree of loudness: intended to serve, namely (1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors should be considered: (a) (b) The historical or actual function of the place; and Whether other aspects of the place suggest that expression within it would undermine the values underlying free expression [E.g. Is the space in fact essentially private, despite being government-owned, or is it public? Is the function of the space the activity going on there compatible with open public expression? Or is the activity one that requires privacy and limited access? Would an open right to intrude and present ones message by word or action be consistent with what is done in the space? Or would it hamper

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] art. 8. Second, it prohibited particular noises namely noise that can be heard from the outside and is produced by sound equipment, whether it is inside a building or installed or used outside: art. 9. Noise targeted by art. 9 is prohibited regardless of whether it affects an inhabited place: art. 11. It is important, however, to note that art. 9 does not represent an absolute ban. Unlike in Ramsden, where no relief from the restrictive by-law was possible, the scheme of the By-law in this case anticipates routine granting of licences as exceptions to the prohibition: (a) Rational connection? The first question is whether the limit on noise produced by sound equipment is rationally connected to the Citys objective of limiting noise in the streets. Clearly it is. Amplified noise emitted into the street may interfere with the activities of people using the street and the buildings around it. (b) Minimal impairment? In dealing with social issues like this one, where interests and rights conflict, elected officials must be accorded a measure of latitude. The Court will not interfere simply because it can think of a better, less intrusive way to manage the problem. There is no other practical way to deal with the complex problem it was facing. (c) Proportionate effect? In our view, the test supports the conclusion that the By-law is valid. The expression limited by the By-law consists of noise produced by sound equipment that interferes with the peaceful use and enjoyment of the urban environment. This limitation therefore goes to the permitted forms of expression on city streets, regardless of content. Against this stand the benefits of reducing noise pollution on the street and in the neighbourhood. We acknowledge that in balancing the deleterious and positive effects of the By-law, account must be taken of the fact that the activity was taking place on a street with an active commercial nightlife in a large and sophisticated city. This does not, however, mean that its residents must necessarily be subjected to abuses of the enjoyment of their environment HELD: Although this provision limits the freedom of expression guaranteed by s. 2(b) of the Canadian Charter, the limit is reasonable and can be justified within the meaning of s. 1 of the Canadian Charter. - The is no breach of the s 7 rights UNLESS there has been a failure to comply with the principles of fundamental justice - Outside the sphere of criminal justice, only a few laws touch life, liberty or security of the person - Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like (Reference Re BC Motor Vehicles Act) Elements of s 7 Life - This section has little work to do because governmental action rarely causes death - But excessive waiting times for treatment in the public health care system of Quebec increased the risk of death and were found to be a violation of the right to life (as well as security of the person) (see Chaoulli) Liberty Physical liberty - Liberty includes freedom from physical restraint (so any law that imposes the penalty of imprisonment, whether the sentence is mandatory or discretionary, is by virtue of that penalty of a deprivation of liberty, and must conform to the principles of fundamental justice) - A law that imposes only a fine is not a deprivation of liberty, and need not conform to the principles of fundamental justice - Changes in sentences involve a deprivation of liberty, although not necessarily in violation of principles of fundamental justice (Cunningham) - Transfer of a prisoner to a higher level prison deprives liberty (May v Ferndale) - Although liberty is generally taken to mean physical liberty, the majority in Blencoe said liberty also deals with a persons ability to make fundamental personal choices Economic liberty - Not included Security of the person - A law that authorized corrective force against children infringed security of person, but held there was no violation of principles of fundamental justice (Canadian Foundation for Children) - Abortion law in CC which restricted abortions, and which resulted in delays in treatment, and which ultimately increased risk to womens health, was held to deprive women of security of person (Morgentaler)

[8]

LIFE, LIBERTY AND SECURITY OF THE PERSON:

s7

Background - S 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance w/ the principles of fundamental justice - A corporations is not everyone - A fetus is not everyone, therefore cannot bring an action in s 7 on its behalf - Our charter is not here to protect property

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - Law which forbid the purchase of private health insurance was said to infringe security of person, because it ultimately led to delays in treatment, which had the effect of putting lifes at risk (Chaoulli) [Note: Majority found this breached Quebec Charter, which doesnt use the phrase fundamental justice. So, it will take another case to determine whether they are in breach of the Canadian Charter] - Security includes control over ones body (Rodriguez assisted suicide case) - Security protects psychological integrity (New Brunswick) and protects against state induced psychological stress, such as where there has been excessive delay caused by admin tribunals (Blencoe) Fundamental justice Procedure and substance - The term fundamental justice covers substantive as well as procedural justice (BC Motor Vehicle Reference) - This is unlike how the term was used in the Canadian Bill of Rights. There, it was used as an equivalent of natural justice, which are rules of procedure (e.g. requirement of a hearing, unbiased adjudication). In that context, the courts would not be entitled to review the substantive justice of the deprivation - Further, the legislative history of s 7 makes clear that the framers thought that fundamental justice meant natural justice - There is a problem with moving to substantive justice, and that is the result is indeterminacy [Note: there are a number of times in this chapter where this issue comes up keep an eye out for it] - Lamer J in BC Motor Vehicle Reference gave 3 reasons for extending fundamental justice beyond procedure. One of his reasons was controversial (i.e the residual theory) - See Hogg book for analysis of whether substantive fundamental justice is a good choice Definition of fundamental justice - In BC Motor Vehicle, it was said that the principles of fundamental justice are said to be found in the basic tenets of the legal system - This is a vague definition, but later decisions havent done much better. - Later decisions indicate that there is little agreement as to what the basic tenets of our legal system are - In fact, some cases do not even rely on the basic tenets of our legal system definition (see Cunningham, where it was said in relation to fundamental justice: The question is whether, from a substantive point of view, the change in the law strikes the right balance between the accuseds interests and the interests of society - In Rodriguez, Sopinka J said that principles of fundamental justice must be fundamental in the sense that they would have general acceptance among reasonable people [But how does this reflect the basic tenants of our legal system?] - The variety of outcomes re: scope of PoFJ can be accounted for only by the enormous discretion that the SCC has assumed for itself under the rubric of fundamental justice (indeterminacy issue) - In R v Malmo-Levine, the Court postulated 3 requirements for a rule to qualify as a basic tenant of the legal system and therefore a principle of fundamental justice: (1) The rule must be a legal principle (2) There must be significant societal consensus that it is fundamental to the way in which the legal system ought to fairly operate (3) The rule must be capable of being identified with sufficient precision to yield to a manageable standard - E.g., in Canadian Foundation for Children, it was argued that a PoFJ was the best interests of the child. The SCC upheld the 3 requirements above, and said that although best interests is a legal principle, it was not fundamental to the legal system Four ways of demonstrating that PoFJ have been violated Overbroad laws - Overbreadth is a breach of the PoFJ, and therefore a basis for a finding of unconstitutionality in a law that affects life, liberty or security of the person (i.e. it is a PoFJ that a law cannot be overly broad) - And if you conclude that there is overbreadth and, therefore, a breach of PoFJ, then law will almost necessarily fail the s 1 analysis as well, because it will fail minimum impairment test - There are practical and theoretical difficulties with this doctrine though (e.g. a judge who disapproves of a law will always be able it find that it is overbroad) Disproportionate laws - Disproportionality is a breach of the principles of fundamental justice, and therefore a basis for finding a law which affects life, liberty or security of persons unconstitutional (i.e it is a principle of fundamental justice that a law cannot be disproportionate in its effect) (Malmo-Levine) - Test: (1) Whether a law pursues a legitimate state interest? (2) If yes to one, whether the law is grossly disproportionate to the state interest Arbitrary laws - An arbitrary law offends PoFJ (Chaoulli) (i.e. it is a PoFJ that a law cannot be arbitrary) - A law is arbitrary if it lacks a real connection on the facts to the purpose the law is said to serve

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] Vague laws Void for vagueness - A vague law violates the principles of fundamental justice, which causes a breach of s 7 if the law is a deprivation of life, liberty or security of person (i.e. it is a PoFJ that a law cannot be vague) Standard of precision - There are tests set out in Nova Scotia Pharmaceutical. The most useful is the legal debate test (namely whether the rule can be subject to reasonable legal debate) - Or, more simply, and perhaps the appropriate test - ask whether the law upholds the two values which the rule against vagueness is supposed to protect: (1) Is there fair notice to citizens?; (2) Is there a limitation of enforcement discretion? Other things to consider re: s 7 Absolute and strict liability Absolute liability offences - Absolute liability + imprisonment = offends PoFJ (BC Motor Vehicle Reference; R v Hess) - Absolute liability + no imprisonment + fine = OK (Pontes) Strict liability offences - The law related to strict liability offences was apparently settled in Wholesale Travel - In the case of a regulatory offence or a public welfare offence, fundamental justice does not require that mens rea be an element of the offence. Fundamental justice is satisfied if there is a defence of reasonable care (due diligence), and the burden of satisfying this defence may be cast on the D - Law in these areas, though, is still very unclear Murder - Before an accused be found guilty of murder, s 7 requires that there be mens rea with respect to the death (Vaillancourt the felony murder rule is unconstitutional) - Subjective foreseeability is required, more specifically (R v Martineau). But dissent pointed out that subjective foresight of death has never been the exclusive standard for murder in Canada or in other countries that have inherited English principles of criminal law. How then did it suddenly become a basic tenet of the legal system? This points to the indeterminacy of the doctrine of substantive fundamental justice, and its dependence on the moral attitudes of the judges Unforeseen consequences - There are some Code offences in which the consequences of an unlawful act dictate the severity of the punishment for which the accused is liable; is it a breach of fundamental justice to make an unintended and unforeseen consequence the basis of a more serious charge? What mens rea elements are required by such an offence? - See R v DeSousa; R v Hundal; R v Creighton Involuntary acts Automatism - The requirement of voluntariness is a basic tenet of the legal system that is protected by s 7 (i.e. it is a PoFJ that criminal offences be committed voluntarily), at least for offences carrying the penalty of imprisonment. This means that the law respecting automatism now has constitutional status, and any attempt by Parliament to abolish the defence or restrict its availability would be unconstitutional, unless the limiting law could be justified under s 1 Duress - R v Ruzic held that the immediacy and presence requirements of s 17 were unconstitutional because they had the potential of convicting a person who had not acted voluntarily Intoxication Right to silence - Right to silence a PoFJ (Herbert) - Pre trial right to silence evidenced in Herberty and Broyles - At trial, s 7 contains a residue of the right to silence and supplements s 11(c) and 13 which explicitly guarantee this right Fair Trial The right to a fair trial - Principles of fundamental justice require that the accused of a crime receive a fair trial - S 7 is wider than s 11(d), because it applies to civil and administrative proceedings where they affect life, liberty or security of person - Extradition process must be conducted in accordance w/ PoFJ because obviously there is a denial of the liberty of the accused - SCC reviewed a radical departure from the traditional trial format in Charkaoui v Canada. After the issue of a security certificate, the Federal Court judge, on review, was required to ensure the confidentiality of the information on which the certificate was based. It was held that the issue of the certificate was a deprivation of liberty under s 7, and the review process did not satisfy the PoFJ because it didnt provide the named person with a fair hearing Full answer and defence

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - S 7 (in addition to the main s of 11(d)) guarantees the accused the right to present a full answer and defence (R v Seaboyer) Pre-trial disclosure - Pre-trial disclosure by the Crown of all information relevant to the conduct of the defence is a constitutional obligation, entailed by the accuseds right to make full answer and defence Pre-trial disclosure by 3rd parties - The access to private records in the possession of third parties could be necessary to an accsueds right to make full answer and defence. Must engage in a balancing between full answer and defence and privacy/equality rights of the other (see Oconner case) Preservation of evidence - The Crown is under a duty to preserve relevant evidence once it comes into the possession or control of the Crown A list of principles of fundamental justice (not exhaustive) (i) Fair judicial process/trial for individuals whose life, liberty or security is at stake (This basic principle has a number of facets. It comprises the right to a hearing; it requires that the hearing be before an independent and impartial magistrate; it demands a decision by the magistrate on the facts and the law; and it entails the right to know the case put against one, and the right to answer that case) (Charkaoui) (ii) A law cannot be arbitrary (Chaoulli) (iii) A law cannot be disproportionate in its effect (iv) A law cannot be overly broad (v) A law cannot be vague (vi) Certain criminal offences must carry a constitutional requirement of subjective mens rea (see, e.g. Martineau) (viii) Criminal offences must be committed voluntarily (ix) Where a person is detained or is subject to onerous conditions of release for an extended period under immigration law, the detention or the conditions must be accompanied by a meaningful process of ongoing review (Charkaoui) Chaoulli v Quebec FACTS: Appellants are Zeliotis and Chaoulli. C is a physician whose primary motivation was to get involved in private sector; but Qbc would not permit him to buy private health care insurance that would duplicate the public. Cs argument was that if people were allowed to buy private insurance, that would make his business more viable (b/c most people cannot pay out of pocket). Patient, Mr Z, involved in an unusual manner. Mr Z, although had to wait a long time for treatment, the wait time problem in the public system wasnt the cause of his particular delay (so not the best representative P); but, courts allowed him to represent individuals who might be in a situation where long wait for treatment may be caused by systemic factors At the trial level, the TJ found no violation of s 7. There was an infringement of security of person, but that was in accordance w/ principles of fundamental justice. Coming to that conclusion, analysed large amount of evidence. Decision was upheld by CoA. In SCC, court was divided McLachlin CJ and Major J (Bastarache J concurring): - Agrees with Deschamps J conclusion that the prohibition violates s 1 of the Qbc Charter and violates s 7 of the Canadian Charter, and cant be saved under s 1 Section 7 Analysis A. Deprivation of life, liberty or security of the person? - They first cite expert evidence of how delays in treatment can lead to physical harm (i.e physical security of the person), and adverse psychological effects which they say engages 7. - The jurisprudence of this Court holds that delays in obtaining medical treatment which affect patients physically and psychologically trigger the protection of s. 7 of the Charter (e.g. Morgentaler) - Also, in Rodriguez v. British Columbia, majority held that security of the person encompasses a notion of personal autonomy involving, at the very least, control over ones bodily integrity free from state interference and freedom from state-imposed psychological and emotional stress (pp. 587-88). The prohibition against private insurance in this case results in psychological and emotional stress and a loss of control by an individual over her own health. - Thus, prohibiting health insurance that would permit ordinary Canadians to access health care, in circumstances where the government is failing to deliver health care in a reasonable manner, thereby increasing the risk of complications and death, interferes with life and security of the person as protected by s. 7 B. Deprivation in accordance with principles of fundamental justice? - The principle of fundamental justice implicated in this case is that laws that affect the life, liberty or security of the person shall not be arbitrary (see Malmo-Levine; Rodriguez) - A law is arbitrary where it bears no relation to, or is inconsistent with, the objective that lies behind [it]. To determine whether this is the case, it is necessary to consider the state interest and societal concerns that the provision is meant to reflect: Rodriguez. - Based on evidence in front of the TJ, impugned provisions are arbitrary. Interference is arbitrary if it lacks a real connection on the facts to the purpose of the interference.

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - Is the interference necessary to providing effective health care under the public system? - The government argues that the interference with security of the person caused by denying people the right to purchase private health insurance is necessary to providing effective health care under the public health system. - But the evidence at trial of experience of other countries suggests that there is no real connection in fact between prohibition of health insurance and the goal of a quality public health system. - The evidence on the experience of other western democracies refutes the government's theoretical contention that a prohibition on private insurance is linked to maintaining quality public health care Section 1 Analysis - Having concluded that the prohibition on private health insurance constitutes a breach of s. 7, we must now consider whether that breach can be justified under s. 1 of the Charter as a reasonable limit demonstrably justified in a free and democratic society. The evidence called in this case falls short of demonstrating such justification. - The government has an interest in protecting the public health regime. But, given the absence of evidence that the prohibition on the purchase of private health insurance protects the health care system, the rational connection between the prohibition and the objects is not made out. An arbitrary provision will likely never meet the rational connection test. - Also, the denial of access to timely and effective medical care to those in need is not proportionate to the beneficial effects of the prohibition on private insurance to the health system as a whole. The prohibition goes further than necessary to protect the public system it is not minimally impairing it. - Finally, the benefits of the prohibition do not outweigh the deleterious effects. Prohibiting citizens from obtaining private health care may leave people no choice but to accept excessive delays in the public system. The physical and psychological suffering and risk of death that may result outweigh whatever benefit (and none has been demonstrated to us here) there may be to the system as a whole. Binnie and Lebel JJ (Dissenting): - Unable to agree with our four colleagues - What are constitutionally required "reasonable health services"? What is treatment "within a reasonable time"? What are the benchmarks? How short a waiting list is short enough? How many MRIs does the Constitution require? The majority does not tell us. The majority lays down no manageable constitutional standard - The evidence certainly established that the public health care system put in place to implement this policy has serious and persistent problems. This does not mean that the courts are well placed to perform the required surgery - The courts can use s. 7 of the Canadian Charter to pre-empt the ongoing public debate only if the current health plan violates an established principle of fundamental justice. Our colleagues McLachlin C.J. and Major J. argue that Quebecs enforcement of a single-tier health plan meets this legal test because it is arbitrary. In our view, with respect, the prohibition against private health insurance is a rational consequence of Quebecs commitment to the goals and objectives of the Canada Health Act. - While in some cases some Quebeckers may have their security put at risk due to this prohibition, the difficulty encountered by the claimants is that they are unable to demonstrate any principle of fundamental justice that has been contravened - The CJ and Major J principally relied on Morgantaler, which was in the criminal law context, far removed from the debate over a two tiered health system Charter Analysis A. Life, liberty and security of person - The real control over the scope and operation of s. 7 is to be found in the requirement that the applicant identify a violation of a principle of fundamental justice. The further a challenged state action lies from the traditional adjudicative context, the more difficult it will be for a claimant to make that essential link - Which s 7 interests are engaged? We accept finding that at least in some cases the prohibition will put at risk the life or security of the person. We do not agree with the appellants, however, that the Quebec Health Plan puts the liberty of Quebeckers at risk. This is not to say that every encounter with a waiting list will trigger the application of s. 7. The interference with ones mental well-being must not be trivial B. Principles of fundamental justice - For a principle to be one of fundamental justice, it must count among the basic tenets of our legal system: Re B.C. Motor Vehicle Act. - The formal requirements for a principle of fundamental justice are threefold: (1) It must be a legal principle; (2) The reasonable person must regard it as vital to our societal notion of justice, which implies societal consensus; (3) It must be capable of being identified with precision and applied in a manner that yields predictable results. But, the aim of health care of a reasonable standard within a reasonable time is not a legal principle. There is no societal consensus about what it means or how to achieve it. It cannot be identified with precision. Finally, its difficult to predict when provisions will be reasonable or unreasonable when implementing a health plan - Further, Chief Justice and Major J take view that a law which arbitrarily violates life/security is unconstitutional, which we agree is a principal of fund justice, but we disagree how it applies to this case

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - Appellants have not established that the prohibition bears no relation to, or is inconsistent with the state interest. Discourage growth of private sector, which is not arbitrary, b/c it is directly related to Qbcs interest in promoting a need-based system and ensuring its viability/efficiency. - Inconsistent means that the law logically contradicts its objectives - We note that our colleagues refer to the evidence before the trial judge rather than the view taken of that evidence by the trial judge. The trial judge reached a contrary conclusion on the facts, and deference is due to her view of that evidence - Approach the arbitrariness issue in 3 steps: (1) What is the state interest sought to be protected?; (2) What is the relationship between the state interest and the prohibition against the relevant conduct? (3) Have the appellants established that the prohibition bears no relation to the state interest? - We agree with the conclusion of the trial judge and the Quebec Court of Appeal that in light of the legislative objectives of the Canada Health Act it is not arbitrary for Quebec to discourage the growth of private sector health care. Prohibition of private health insurance is directly related to Quebecs interest in promoting a need-based system and in ensuring its viability and efficiency. Prohibition of private insurance is not inconsistent with the state interest; still less is it unrelated to it COMMENT: Note these points: This case doesnt decide anything outside the province of Quebec. The only majority we have is on the Quebec Charter One thing on which Court agreed was that security of person and right to life had been violated due to prolonged wait times. This was accepted by all judgments, including lower level courts, was that these were violated. No majority on analysis of the violation of principles of fundamental justice: (1) Deschamps J analysis of the equivalent provision which deals with security of person and right to life does not have a fundamental justice principle requirement; (2) McLachlin CJ and Major J held violation (3) Binnie and LeBel JJ held no McLachlin CJ and Major JJ: The basis for the violation was that the there was no connection b/w the legislative provision and the purported objective of improving the quality of public health service. In coming to this conclusion, they analysed evidence from other countries and jurisdictions to show that there is no real connection between prohibition of health insurance and the goal of public health system Criticisms? o McLachlin and Major conclude from evidence from other jurisdictions that it may not be necessary to prohibit private insurance in order to ensure effectiveness of the public. But they say that there is no real connection, or that the connection is arbitrary. Is it enough to say that this means that its arbitrary (no connection) (ie.. just b/c not essential, does it follow that its arbitrary?) o Dealing with findings of fact: Appellate courts are normally expected to dealt with findings of fact on the basis that they are not to be contested unless there is an overriding and palpable error. Here, they contested findings of fact of the TJ, but there is no analysis of this test. One possible justification for doing so is that this is a unique, Charter cases which has potential for impacting lives of many Canadians. Maybe we should deal w/ findings of fact in this type of case differently than in a typical criminal/civil matter. Second, b/c broad questions of public policy/lots of evidence published/lots contested, the SCC may have been justified in sifting through it. Of course, there might be a worry about picking and choosing evidence which fits their intended argument, however. Third, if you consider we the rationale for giving deference to TJ on findings of fact, it is the process of being able to test evidence. But maybe this type of social-scientific evidence was testable by comparing/contrasting it to evidence available to the judges. Some of the findings the SCC relied on there was no evidence for, e.g., no evidence to rely on to justify the conclusion that the infringement of the right to life, liberty and security results from public system having longer wait times. In fact, where jurisdictions that permit private insurance (duplicate model), evidence suggests that weight times are just as bad.

Charkaoui v Canada (Minister of Citizenship and Immigration) FACTS: C applied for a stay of proceedings relating to the security certificate issued against him under s 77 of the Immigration and Refugee Protection Act. He alleged that the government breached a duty to disclose info in its possession in a timely way. The process of this is that the Minister has the ability to sign a certificate declaring that a foreign national/permanent resident is inadmissible to enter or remain in Canada on grounds of necessity, then a judge determines whether this is reasonable. The certificate and the detention are both subject to review by a judge, in a process that may deprive the person named in the certificate of some or all of the information on the basis of which the certificate was issued or the detention ordered ISSUE: Whether the solution that Parliament has enacted conforms to the Constitution, and in particular the guarantees in the Canadian Charter of Rights and Freedoms that protect against unjustifiable intrusions on liberty, equality and the freedom from arbitrary detention and from cruel and unusual treatment REASONING: 1. Does the procedure under the IRPA for determining the reasonableness of the certificate infringe s. 7 of the Charter, and if so, is the infringement justified under s. 1 of the Charter? (a) Is s 7 of the Charter engaged and violated?

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - The provisions at issue, found at Division 9 of Part 1 of the IRPA, clearly deprive detainees such as the appellants of their LIBERTY, because the person named in a certificate can face detention pending the outcome of the proceedings. - The detainees SECURITY may be further affected in various ways. The certificate process may lead to removal from Canada, to a place where his or her life or freedom would be threatened - The individual interests at stake suggest that s. 7 of the Charter, the purpose of which is to protect the life, liberty and security of the person, is engaged, and this leads directly to the question whether the IRPAs impingement on these interests conforms to the principles of fundamental justice the basic principles that underlie our notions of justice and fair process. - These principles include a guarantee of procedural fairness, having regard to the circumstances and consequences of the intrusion on life, liberty or security - Section 7 of the Charter requires not a particular type of process, but a fair process having regard to the nature of the proceedings and the interests at stake: United States of America v. Ferras. The issue is whether the process is fundamentally unfair to the affected person. - In the instant case, the context is the detention; it is a context that may have important, indeed chilling, consequences for the detainee. As this Court stated in Suresh, [t]he greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the requirements of fundamental justice under s. 7 of the Charter. Thus, factual situations which are closer or analogous to criminal proceedings will merit greater vigilance by the courts - The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process. This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial magistrate. It demands a decision by the magistrate on the facts and the law. And it entails the right to know the case put against one, and the right to answer that case. Precisely how these requirements are met will vary with the context. But for s. 7 to be satisfied, each of them must be met in substance. - Is the judge independent and impartial? The circumstances may give rise to a perception that the designated judge under the IRPA may not be entirely independent and impartial as between the state and the person named in the certificate (e.g. When reviewing the certificate, the judge sees all the material relied on by the government. But if the government claims confidentiality for certain material, the judge cannot share this material with the named person). Three related concerns arise with respect to independence and impartiality. First is the concern that the IRPA may be perceived to deprive the judge of his or her independent judicial role and co-opt the judge as an agent of the executive branch of government. Second is the concern that the designated judge functions as an investigative officer rather than a judge (this would violate PoFJ). Third is the concern that the judge, whose role includes compensating for the fact that the named person may not have access to material and may not be present at the hearing, will become associated with this persons case. I conclude that, on its face, the IRPA process is designed to preserve the independence and impartiality of the designated judge, as required by s. 7. - Is the decision based on the facts and the law? To comply with s. 7 of the Charter, the magistrate must make a decision based on the facts and the law. The IRPA process at issue seeks to meet this requirement by placing material before the judge for evaluation. But the named person is not given the disclosure and the right to participate in the proceedings that characterize the adversarial process. The result is a concern that the designated judge, despite his or her best efforts to get all the relevant evidence, may be obliged perhaps unknowingly to make the required decision based on only part of the relevant evidence. The result is that, at the end of the day, one cannot be sure that the judge has been exposed to the whole factual picture. - Is the case to meet principle satisfied? Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case. Under the IRPAs certificate scheme, the named person may be deprived of access to some or all of the information put against him or her, which would deny the person the ability to know the case to meet. Without this information, the named person may not be in a position to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations. In some contexts, substitutes for full disclosure may permit compliance with s. 7 of the Charter. BUT in the context of national security, non-disclosure, which may be extensive, coupled with the grave intrusions on liberty imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures that will satisfy s. 7. Fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case. This principle has NOT been satisfied. - Therefore, IRPAs procedure for determining whether a certificate is reasonable does not conform to the principles of fundamental justice as embodied in s. 7 of the Charter. (b) Is the limit justified under s 1? - The Charter does not guarantee rights absolutely. The state is permitted to limit rights including the s. 7 guarantee of life, liberty and security if it can establish that the limits are demonstrably justifiable in a free and democratic society - Violations of s. 7 are not easily saved by s. 1 (Re BC Motor Vehicle Act). Violations of the principles of fundamental justice, specifically the right to a fair hearing, are difficult to justify under s. 1 - Nonetheless, apply the Oakes test: (a) Pressing and substantial objective? The protection of Canadas national security and related intelligence sources undoubtedly constitutes a pressing and substantial objective (b) Proportionality assessment:

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] (i) Rational connection? Moreover, the IRPAs provisions regarding the non-disclosure of evidence at certificate hearings are rationally connected to this objective (ii) Minimum impairment? i.e. Is a certificate procedure leading to detention and deportation of non-citizens on the ground that they pose a threat to Canadas security, minimal impairment to the rights of non citizens? There are other methods Parliament could have chosen to protect security that are less intrusive (e.g. special counsel, which would better protect detained individuals interests; and a current example is the Canada Evidence Act). Of course, Parliament is not required to use the perfect, or least restrictive, alternative to achieve its objective: R. v. Chaulk. However, bearing in mind the deference that is owed to Parliament in its legislative choices, the alternatives discussed demonstrate that the IRPA does not minimally impair the named persons rights. 2. Does the Detention of Permanent Residents or Foreign Nationals Under the IRPA Infringe Section 7? - The s. 12 issue of cruel and unusual treatment is intertwined with s. 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty. Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment - Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual - It is clear that while the IRPA in principle imposes detention only pending deportation, it may in fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release conditions. The next question is whether this violates s. 7 or s. 12 based on the applicable legal principles. - I conclude that the s. 7 principles of fundamental justice and the s. 12 guarantee of freedom from cruel and unusual treatment require that, where a person is detained or is subject to onerous conditions of release for an extended period under immigration law, the detention or the conditions must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case. - I conclude that extended periods of detention under the certificate provisions of the IRPA do not violate ss. 7 and 12 of the Charter if accompanied by a process that provides regular opportunities for review of detention, taking into account all relevant factors, including the following: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention [Each factor will either weigh in favour of or against release] - Do the provisions for review of detention under the IRPAs certificate scheme satisfy these requirements? The IRPA, interpreted in conformity with the Charter, permits robust ongoing judicial review of the continued need for and justice of the detainees detention pending deportation. On this basis, I conclude that extended periods of detention pending deportation under the certificate provisions of the IRPA do not violate s. 7 or s. 12 of the Charter

[9]

EQUALITY: s 15

- s.15 (1): Every individual is equal before and under the law, has the right to 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 (these are enumerated grounds) 15 (2): Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. - Equality in s 15 is expressed in four different ways: (1) equality before the law (2) equality under the law (3) equal protection of the law and (4) equal benefit of the law. Equality Four equalities of s 15 - The reason for having 4 formulations of the idea of equality was to reverse the restrictive interpretations placed by the SCC on the phrase equality before the law which is in the Bill of Rights Similarly situated test - This was an old test used, but it is deficient and no longer used Formal and substantive equality - Formal equality merely prohibits direct discrimination (which is insufficient), while substantive equality prohibits both direct and indirect discrimination Discrimination - Early application of s 15 resulted in an overload of cases being brought to the court challenging on equality ground - Then came the Andrews case, which started to develop rules to control the floodgates.

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - The SCC held that s 15 was a prohibition of discrimination, and that discrimination could only be based on a ground that was listed in s 15 or that was analogous to those listed in the section - So it is now clear that s 15 prohibits only those violations of equality that amount to discrimination. Discrimination is the operative concept, and the SCC has settled that the following amounts to discrimination: (1) The challenged law imposed (directly or indirectly) on the claimant a disadvantage (in the form of a burden or withheld benefit) in comparison to other comparable persons; (Andrews); AND (2) The disadvantage is based on a ground listed in or analogous to a ground listed in s 15; (Andrews) AND (3) The disadvantage is imposed in a way that impairs human dignity (Law v Canada) - A claimant who persuades the Court of these 3 elements is entitled to a finding of discrimination, which means that the challenged law is in breach of s 15. - The burden then shifts to the government to justify the discrimination under s 1 - Remember, the conclusion drawn on a s 15 analysis is whether or not there is DISCRIMINATION. Elements of s 15 (Andrews; Law) (1) DISADVANTAGEOUS DISTINCTION: does the challenged law impose (directly/indirectly) a disadvantage on the claimant (in the form of a burden or benefit withheld) in comparison to other comparable persons? Selection of comparator group (step 1) - Find the group that shares with the claimant all the characteristics that qualify for the benefit (or burden), except for a personal characteristic that is listed in or analogous to those listed in s 15 - The definition of the comparator group is critical to the outcome of s 15 cases. - E.g. in Andrews, the comparative group was citizen lawyers (vs non-citizen lawyers) Requirement of disadvantage (step 2) - Once the appropriate comparator group has been selected, it is necessary to compare the treatment provided by the law to the claimant with the treatment provided to the comparator group. Only if the law treats the claimant less favourably, whether by withholding a benefit that is granted to the comparator group, or by imposing a burden that is not applicable to the comparator group, is the claim of disadvantage or unequal treatment made out - Any disadvantage imposed on the claimant group must be netted out (or considered together with) any advantage granted to the claimant group; is the disadvantaged netted out by the advantage? (Thibaudeau) - How do you measure disadvantage? Some cases have involved a subjective analysis (from the claimants standpoint), and others have involved an objective (from the courts standpoint) analysis. Hogg, relying on Can Foundation for Children case, suggests that the assessment is to take place from the perspective of a reasonable person (objective), but one who shares attributes and circumstances of the claimant (subjective) so a modified objective test. Group disadvantage - Being part of a disadvantaged group is not a prerequisite to finding discrimination, although it is an indication of an analogous group (Miron v Trudel; Egan v Canada) - And it is relevant to the human dignity analysis (Law v Canada) (2) ENUMERATED OR ANALOGOUS GROUNDS: The distinction is on the basis of a listed or analogous ground - Note that, in (1) above, you will have to mention this ground, so (1) and (2) are not necessarily strictly separate stages - The requirement that the discrimination be in relation to a listed or analogous ground was stated in Andrews - Listed grounds include: race, national or ethnic origin, colour, religion, sex, age or mental or physical disability - Analogous grounds include: (i) Citizenship (Andrews); (ii) Marital status (Nova Scotia v Walsh) [These two analogous grounds can be considered soft analogous grounds, because each can be chosen by an individual, although that choice is sometimes blocked by legal requirements; (iii) Sexual orientation (Egan v Canada) [So far, these are the only analogous grounds to be recognized] (iv) Off reserve status Indians (Corbiere) - The following are NOT analogous grounds: place of residence (Turpin); occupation (Re Workers Comp); persons charged w/ war crimes (Finta); persons bringing claim against Crown (Rudolph) - The limitation of s 15 to listed and analogous grounds restricts judicial review to laws that distinguish between individuals on the basis of their inherent (or immutable) attributes as opposed to their behaviour (which are not subject to change except at significant cost) (Corbiere v Can.) An analogous ground is based on a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity (3) DISADVANTAGE AND HUMAN DIGNITY: Does the disadvantage impair claimants human dignity

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - There are 4 contextual factors used to determine whether or not human dignity is impaired by a law that imposes a disadvantage on the basis of a listed or analogous ground. - The correspondence factor has become the KEY to the impairment of human dignity - Law v Canada identifies 4 contextual factors to analyse when determining whether there was an impairment of human dignity: (1) The existence of pre-existing disadvantage, stereotyping, prejudice or vulnerability: If the law promotes stereotype, then this indicates a s 15 infringement (2) The correspondence between the distinction and the claimants characteristics or circumstances (sometimes legislation must make distinctions in order to account for personal characteristics (i.e., Eldridge and disability benefits re: health care) (e.g. In Law, the denial of CPP survivor benefits to spouses under the age of 35 accurately corresponded to the circumstances of younger spouses of deceased income earners, who could be expected to be more successful in finding and retaining employment than older spouses) (3) The existence of ameliorative purposes or effects on other groups: This factor is more relevant where the s. 15(1) claim is brought by a more advantaged member of society (e.g. in Law, the SCC held that a factor supporting the view that the impugned CPP provisions do not violate essential human dignity is the clear ameliorative purpose of the pension scheme for older surviving spouses. Older surviving spouses, like surviving spouses who are disabled or who care for dependent children, are more economically vulnerable to the long-term effects of the death of a spouse) i. An ameliorative pupose will likely not violate the dignity of more advantaged individuals that are excluded from the law's scope where the purpose accords with the purpose of section 15(1) itself and corresponds to the needs and circumstances of the disadvantaged group targeted by the legislation. (4) The nature of the interest affected: The more severe and localized the consequences on the affected group, the more likely that the distinction responsible for these consequences is discriminatory within the meaning of s. 15 of the Charter; evaluate not only the economic but also the constitutional and societal significance attributed to the interest or interests adversely affected by the legislation in question. - THE POINT IN THE DIGNITY ANALYSIS IS TO ASK WHETHER from the perspective of a reasonable person in circumstances similar to those of the claimant who takes into account the contextual factors relevant to the claim (i.e. APPLY A MODIFIED OBJECTIVE TEST), the legislative imposition of differential treatment has the effect of demeaning his or her dignity - The contextual approach should not be read literally as if they were legislative dispositions, but as a way of focussing on the central concern of s 15 combating discrimination - Note, however, that the SCC in Kapp (obiter) opted to remove the human dignity requirement, and replaced it with a discrimination requirement, namely the perpetuation of disadvantage or stereotyping. - The 4 factor contextual approach is still relevant: (1) Pre existing disadvantage (3) Ameliorative purpose (4) Nature of interest affected [The above 3 factors go to perpetuation of disadvantage] (2) Correspondence [This factor goes to stereotyping] - But human dignity analysis is still good law, because obiter remarks of the SCC are not binding on the SCC)

The law on the listed and analogous grounds Race - Race as well as national or ethnic origin and colour are grounds of discrimination expressly prohibited by s 15 - It is difficult to imagine a situation in which a racial distinction could possibly be upheld, unless it falls under s 15(2) - The aboriginal situation in Canada is a special one (see s 25 of Charter and s 91(24) of Constitution Act, 1867) Religion

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - Religion is another ground expressly prohibited by s 15 - The funding of the schools of a religious denomination without comparable provision for the supports of the schools of other religious denominations would be forbidden by s 15, unless that denominational school system is protected under the special provision of s 93 Sex - Another ground of discrimination that is expressly prohibited - R v Hess: The offence of statutory rape did not offend s 15, although the offence could only be committed by a male, on the basis that since the prohibited act (intercourse) was defined by reference to penetration, so it could as a matter of biological fact be committed only by males [Hogg criticizes this] - Brenner v Canada: A provision of the Federal Citizenship Act distinguished between men and women and was struck down under s 15. In regulating the citizenship status of persons born outside Canada before 1977, the Act provided that a person born to a Canadian father was automatically entitled to citizenship upon registration in Canada of the birth, but a person born to a Canadian mother had to apply for citizenship and undergo a security check. This law could not be saved under s 1, failing on the rational connection test. - There are a few other examples too Age - Another ground of discrimination that is expressly prohibited - There are some differences between this ground and the other ones: (i) A minority defined by age is much less likely to suffer from the prejudice of the majority than is a minority defined by race or religion: we all go through the age cycle; (ii) Another difference b/w age and other named characteristics is that there is some relationship between age and ability - Law v Canada: The SCC upheld a law that denied a benefit to young persons, namely those who were under 35 were denied pension plan payments upon death of surviving spouses. Although there was a distinction on age, there was no impairment of human dignity. The exclusion of persons under 35 from the benefit scheme did not imply that they were less capable or less worthy, but simply was designed to recognize the reality that older people would be in greater need of support, and to apply limited resources to those in greater need - Gosselin v Quebec: Quebecs social assistance law provided that welfare recipients under 30 received benefits of only about 1/3 of the standard amount that was payable to persons 30 or over. Held: while there was a distinction on the basis of age, there was no impairment of human dignity. - See also Wynberg v Ontario (re: program for autistic children cancelled after they turned 6); Canadian Foundation for Children v Canada (re: defence to assault charge to use corrective force on children); - The SCC also decided a group of mandatory retirement cases, the leading one being McKinney v University of Guelph: The mandatory retirement rules imposed a disadvantage (retirement) on a defined group by its age (65), therefore a breach of s 15. But justifiable under s 1 [Note: for each of the decisions but one, there was an issue as to applicability of Charter]. But see Tetreault-Gadoury v Canada: A provision of the Unemployment Insurance Act, which denied benefits to persons over 65, was in breach of s 15, and could not be justified by s 1. The Court distinguished McKinney on 3 grounds (see p 1246) Mental or physical disability - Mental or physical disability is another of the grounds of discrimination that is expressly prohibited by s 15 - Although there are legal restrictions properly predicated on mental disability (e.g. a blind person is disqualified from driving), many disabilities can be accommodated by changes to work places and public facilities that permit those who are blind, for example, to function effectively. Therefore, the rules that discrimination may be unintended, indirect and may require reasonable accommodation, are of special importance here - In several of the accommodation cases (i.e. where an accommodation had been made to the special needs of a class of persons with disabilities), the constitutional challenge to the appropriateness of the accommodation failed, indicating that deference should be paid to a legislated effort to accommodate such needs. - But this pattern of deference was broken in Nova Scotia v Martin --- But Hogg disagrees with the approach the Court took in this case suggests more deference should had been paid to legislative decision - In Nova Scotia v Martin the SCC struck down provisions of a statutory workers comp scheme that dealt w/ chronic pain; it provided a 4 week rehab period for worker suffering from chronic pain. Held: (i) The restriction on benefits for chronic pain distinguished between workers with chronic pain and workers with other kinds of work related injuries; (ii) The distinction was based on physical disability (an expressly prohibited ground), even though members of the comparison group were also disabled; (iii) The distinction impaired human dignity of chronic pain suffers, and therefore amounted to discrimination; (iv) It could not be saved by s 1 Citizenship - Citizenship is not a ground of discrimination expressly mentioned in s 15, but it is an analogous ground (Andrews v Law Society) Marital status - Marital status is not a ground of discrimination that is expressly mentioned in s 15, but in Miron v Trudel the SCC held it to be an analogous ground. Sexual orientation - It is an analogous ground (Egan v Canada)

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] Other things to note Direct and indirect discrimination Substantive equality - A law may be discriminatory on its face or in its effect (the latter being substantive equality) (Andrews) - Indirect discrimination is caused by a law that does not expressly employ any of the categories listed in s 14 (or analogous to those listed), if the law has a disproportionately adverse effect on the persons defined by any of the prohibited categories - A law may also be discriminatory in its application Unintentional discrimination - It is immaterial whether discrimination is intentional or not. If its effect is discriminatory, thats what matters - Thus, discrimination may be indirect AND unintended Reasonable accommodation - It is a necessary corollary of the rule that discrimination may be indirect and unintended that a law may have to make reasonable accommodation for those who, by reason of, for example, religious affiliation or disability, are discriminated against by otherwise neutral laws (see Mental and physical disability; very relevant there) Justification under s 1 - Since Law imported the human dignity analysis into s 15, there has only be one case in which s 1 has saved a law found to be in breach of s 15, showing the difficulty in upholding a law that infringes equality Affirmative action - S 15(2) makes it clear that s 15 doesnt preclude affirmative action or equity programmes in favour of disadvantages individuals or groups - This has not been interpreted as an exception to s 15(1); rather sub (2) and (1) are confirmatory of one another; they are independent (see R v Kapp) ISSUE: Does s 42 offend s 15 of the Charter? REASONING: Wilson J (Majority) I agree with my colleague that a rule which bars an entire class of persons from certain forms of employment solely on the ground that they are not Canadian citizens violates the equality rights of that class. Before turning to s 1 analysis, note that relative to citizens, non-citizens are a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated, and therefore concluded that they fall into an analogous group to those enumerated in s 15 S 1 analysis: There is not a sufficiently rational connection between the required personal characteristic of citizenship and the governmental interest in ensuring lawyers in BC are familiar with Canadian institutions, are committed to Canadian society, and are capable of playing a role in our system of democratic government Disposition: the law is unconstitutional McIntyre J (Dissenting in part namely on the s 1 analysis) Consideration must be given to the content of the law, to its purpose, and its impact upon those to whom it applies, and also upon those whom it excludes from its application. The issues which will arise from case to case are such that it would be wrong to attempt to confine these considerations within such a fixed and limited formula. Discrimination is the key in s 15: ask, if there is a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. And, if so, that distinction must be discriminatory. s 15 analysis: It would seem to me apparent that a legislative distinction has been made by s. 42 of the Barristers and Solicitors Act between citizens and non-citizens with respect to the practice of law. The distinction would deny admission to the practice of law to non-citizens who in all other respects are qualified. Have the respondents, because of s. 42 of the Act, been denied equality before and under the law or the equal protection of the law? In practical terms it should be noted that the citizenship requirement affects only those non-citizens who are permanent residents. The permanent resident must wait for a minimum of three years from the date of establishing permanent residence status before citizenship may be acquired. The distinction therefore imposes a burden in the form of some delay on permanent residents who have acquired all or some of their legal training abroad and is, therefore, discriminatory. The rights guaranteed in s. 15(1) apply to all persons whether citizens or not s 1 analysis: (1) Objective: The Act was enacted for a valid and desirable purpose, namely the creation and regulation no the legal profession of the practice of law. It is entirely reasonable that legislators consider and adopt measures designed to maintain within the legal profession a body of qualified professionals with a commitment to the country and

Discrimination permitted by the Constitution - There are certain provisions in the Constitution which are discriminatory on some of the grounds listed in s 15. These provisions are not sheltered from Charter attack by reason of their constitutional status Andrew v Law Society of BC FACTS: s. 42 of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, differentiates between citizens and non-citizens with respect to admission to the practice of law. The distinction denies admission to non-citizens who are in all other respects qualified.

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] to the fulfilment of the important tasks which fall to it. The Legislature in fixing public policy has chosen the citizenship requirement and, unless the Court can find that choice unreasonable, it has no power under the Charter to strike it down or, as has been said, no power to invade the legislative field and substitute its views for that of the Legislature. (2) Proportionality assessment: (a) Etc [Not important] HELD: Majority held that law was unconstitutional Law v Canada (Leading case on s 15) FACTS: This appeal concerns the constitutionality of ss. 44(1)(d) and 58 of the Canada Pension Plan, R.S.C., 1985, c. C-8, which draw distinctions on the basis of age with regard to entitlement to survivor's pensions. The Canada Pension Plan (the CPP) is a compulsory social insurance scheme which was enacted in 1965 in order to provide contributors and their families with reasonable minimum levels of income upon the retirement, disability or death of the wage earner. Among the benefits available under the CPP is the survivors pension. This monthly benefit is paid to a surviving spouse whose deceased partner has made sufficient contributions to the CPP, and who meets the eligibility criteria specified in s. 44(1)(d), namely, an age threshold ISSUE: Whether the provisions infringe s. 15(1) of the Canadian Charter of Rights and Freedoms on the ground that they discriminate against persons under the age of 45 on the basis of age and, if so, whether the infringement is justified under s. 1 of the Chart REASONING: Approach to s 15(1) (1) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimants already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). (2) Was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? (3) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration? - The determination of whether legislation fails to take into account existing disadvantage, or whether a claimant falls within one or more of the enumerated and analogous grounds, or whether differential treatment may be said to constitute discrimination within the meaning of s. 15(1), must all be undertaken in a purposive and contextual manner - What is the purpose of the s. 15(1) equality guarantee? The purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. This purposes drives the s 15 analysis Human dignity - Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society. Alternatively, differential treatment will not likely constitute discrimination within the purpose of s. 15(1) where it does not violate the human dignity or freedom of a person or group in this way, and in particular where the differential treatment also assists in ameliorating the position of the disadvantaged within Canadian society. - What is human dignity? Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society [Note this is not to be used as a definition of human dignity see 4 contextual factors below] - Four indicia to determine whether demeaning of dignity has occurred (a) Pre-existing disadvantage: As has been consistently recognized throughout this Courts jurisprudence, probably the most compelling factor favouring a conclusion that differential treatment imposed by legislation is truly discriminatory will be, where it exists, pre-existing disadvantage, vulnerability, stereotyping, or prejudice experienced by the individual or group (i.e. existing vulnerability). One consideration which the Court has frequently referred to with respect to the issue of pre-existing disadvantage is the role of stereotypes. If law promotes stereotype, then this will lead to infringement. So, the effects of a law as they relate to the important purpose of s. 15(1) in protecting individuals or groups who are vulnerable, disadvantaged, or members of discrete and insular minorities should always be a central consideration. Although the claimants association with a historically more advantaged or disadvantaged group or groups is not per se determinative of an infringement, the existence of these pre-existing factors will favour a finding that s. 15(1) has been infringed. (b) Relationship b/w grounds and the claimants characteristics/circumstances: Although the mere fact that the impugned

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] legislation takes into account the claimants traits or circumstances will not necessarily be sufficient to defeat a s. 15(1) claim, it will generally be more difficult to establish discrimination to the extent that the law takes into account the claimants actual situation in a manner that respects his or her value as a human being or member of Canadian society, and less difficult to do so where the law fails to take into account the claimants actual situation. (c) Ameliorative purpose or effects: Another possibly important factor will be the ameliorative purpose or effects of impugned legislation or other state action upon a more disadvantaged person or group in society. An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. This factor is more relevant where the s. 15(1) claim is brought by a more advantaged member of society. (d) Nature of the interest affected: the more severe and localized the consequences on the affected group, the more likely that the distinction responsible for these consequences is discriminatory within the meaning of s. 15 of the Charter; evaluate not only the economic but also the constitutional and societal significance attributed to the interest or interests adversely affected by the legislation in question. [NOTE: THE POINT IN THE DIGNITY ANALYSIS IS TO ASK WHETHER from the perspective of a reasonable person in circumstances similar to those of the claimant who takes into account the contextual factors relevant to the claim (i.e. APPLY A MODIFIED OBJECTIVE TEST), the legislative imposition of differential treatment has the effect of demeaning his or her dignity] Application to the case (1) Differential treatment: The CPP grants benefits to surviving spouses over the age of 35 immediately following the death of the contributor. However, these benefits are not available to able-bodied spouses without dependent children who are less than 35 years of age at the time of the death of the contributor, until they reach age 65 or unless they should become disabled in the interim. Clear distinction made on AGE. Thus, a denial of equal benefit of the law, given the delay in the receipt of the benefits and the reduced entitlement to benefits (2) Distinction on the basis of an enumerated/analogous ground: In my view, the survivors pension provisions of the CPP clearly draw distinctions on the basis of the enumerated ground of age. Had the appellant been ablebodied, without dependent children, and over age 45 at the time of her spouse's death, she would have been immediately entitled to receive full benefits. However, as an able-bodied, childless woman who was 30 years of age at the time of her spouse's death, she is denied any benefits until she reaches age 65, provided she does not subsequently become disabled. (3) Discrimination: The central question in the present case is whether the age distinctions drawn by ss. 44(1)(d) and 58 of the CPP impose a disadvantage upon the appellant as a younger adult in a manner which constitutes discrimination under s. 15(1) of the Charter. Relatively speaking, adults under the age of 45 have not been consistently and routinely subjected to the sorts of discrimination faced by some of Canadas discrete and insular minorities. For this reason, it will be more difficult as a practical matter for this Court to reason, from facts of which the Court may appropriately take judicial notice, that the legislative distinction at issue violates the human dignity of the appellant. The appellant has not established that either the purpose or effect of the impugned legislative provisions violates her human dignity. The purpose and function of the impugned CPP provisions is not to remedy the immediate financial need experienced by widows and widowers, but rather to enable older widows and widowers to meet their basic needs during the longer term. Young persons experience fewer impediments to long-term labour force participation and are generally in a better position than older persons to replace independently over the long run as a working member of Canadian society the income of a deceased spouse. The law on its face treats such younger people differently, but the differential treatment does not reflect or promote the notion that they are less capable or less deserving of concern, respect, and consideration, when the dual perspectives of long-term security and the greater opportunity of youth are considered Another factor supporting the view that the impugned CPP provisions do not violate essential human dignity is the clear ameliorative purpose of the pension scheme for older surviving spouses. Older surviving spouses, like surviving spouses who are disabled or who care for dependent children, are more economically vulnerable to the long-term effects of the death of a spouse HELD: Appeal dismissed R v Kapp FACTS: The appellants are commercial fishers, mainly non-aboriginal, who assert that their equality rights under s. 15 of the Canadian Charter of Rights and Freedoms were violated by a communal fishing licence granting members of three aboriginal bands the exclusive right to fish for salmon. The essence of the claim is that the communal fishing licence discriminated against them on the basis of race. ISSUE: These contentions, taken together, raise the issue of the interplay between s. 15(1) and s. 15(2) of the Charter. Specifically, they require this Court to consider whether s. 15(2) is capable of operating independently of s. 15(1) to protect ameliorative programs from claims of discrimination a possibility left open in this Courts equality jurisprudence REASONING: Background of s 15 - Governments may wish to combat discrimination by developing programs aimed at helping disadvantaged groups improve their situation. Through s. 15(2), the Charter

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] preserves the right of governments to implement such programs, without fear of challenge under s. 15(1). - The achievement of Law was its success in unifying what had become, since Andrews, a division in this Courts approach to s. 15. Law accomplished this by reiterating and confirming Andrews interpretation of s. 15 as a guarantee of substantive, and not just formal, equality. - At the same time, several difficulties have arisen from the attempt in Law to employ human dignity as a legal test - As critics have pointed out, human dignity is an abstract and subjective notion that, even with the guidance of the four contextual factors, cannot only become confusing and difficult to apply; it has also proven to be an additional burden on equality claimants, rather than the philosophical enhancement it was intended to be - The analysis in a particular case, as Law itself recognizes, more usefully focuses on the factors that identify impact amounting to discrimination. The four factors cited in Law are based on and relate to the identification in Andrews of perpetuation of disadvantage and stereotyping as the primary indicators of discrimination. - Viewed in this way, Law does not impose a new and distinctive test for discrimination, but rather affirms the approach to substantive equality under s. 15 set out in Andrews and developed in numerous subsequent decisions - The central purpose of combating discrimination, as discussed, underlies both s. 15(1) and s. 15(2). Under s. 15(1), the focus is on preventing governments from making distinctions based on the enumerated or analogous grounds that: have the effect of perpetuating group disadvantage and prejudice; or impose disadvantage on the basis of stereotyping. Under s. 15(2), the focus is on enabling governments to proactively combat existing discrimination through affirmative measures. Analysis of s 15(2) - The question that arises is whether the program that targeted the aboriginal bands falls under s. 15(2) in the sense that it is a law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups. - As noted, the communal fishing licence authorizing the three bands to fish for sale on August 19-20 was issued pursuant to an enabling statute and regulations namely the ACFLR. This qualifies as a law, program or activity within the meaning of s. 15(2) - The focus of s. 15(1) is on preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping. The focus of s. 15(2) is on enabling governments to pro-actively combat discrimination. Read thus, the two sections are confirmatory of each other - But this confirmatory purpose does not preclude an independent role for s. 15(2). Section 15(2) is more than a hortatory admonition. It tells us, in simple clear language, that s. 15(1) cannot be read in a way that finds an ameliorative program aimed at combating disadvantage to be discriminatory and in breach of s. 15. - The TEST under s 15(2) is as follows: A program does not violate the s. 15 equality guarantee if the government can demonstrate that: (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds. - There are 3 key phrases to s 15(2): (a) Has as its object: The language of s. 15(2) suggests that legislative goal rather than actual effect is the paramount consideration in determining whether or not a program qualifies for s. 15(2) protection; where a law, program or activity creates a distinction based on an enumerated or analogous ground, was the governments goal in creating that distinction to improve the conditions of a group that is disadvantaged? And note that the ameliorative purpose need not be the sole purpose of the Act (b) Amelioration: Section 15(2) protects programs that aim to ameliorate the condition of disadvantaged groups identified by the enumerated or analogous grounds (c) Disadvantaged: Disadvantage under s. 15 connotes vulnerability, prejudice and negative social characterization Application of s 15(2) to this case - Onus on government to show that the program is protected by s 15(2) - First question is whether the program that excluded Mr. Kapp and other non-band fishers from the fishery had an ameliorative or remedial purpose. The government was hoping to redress the social and economic disadvantage of the targeted bands, so yes. - Second, the governments aims correlate to the actual economic and social disadvantage suffered by members of the three aboriginal bands. The disadvantage of aboriginal people is indisputable. - Therefore, the government program is protected by s 15(2). - It follows that the program does not violate the equality guarantee of s. 15 of the Charter. HELD: Appeal dismissed COMMENT: (i) S 15 (2) put in the Charter to allow affirmative action programs; (ii) S15 (2) enables (allows) gov to make unequal laws in order to combat discrimination; (iii) A vehicle for gov to validly discriminate to ameliorate (improve) the disadvantage of certain groups; (iv) So if gov can bring itself under s 15 ( 2) then no violation of s 15 (1); (v) 15 (2) trumps 15 (1). It doesnt violate it; (vi) You need to start with an unequal treatment. You need that distinction first: (a) First , a claimant will claim discrimination based on s 15 (1) of the legislation in the question based on an enumerated or analogous grounds and (b) Second, the GOV will try to justify the legislation UNDER s 15 (2)

[10 ]

LIMITATION OF RIGHTS:

R v Oakes

Burden of proof - At stage one, person who alleges Charter breach has burden; at stage two (s 1 analysis), the burden shifts to the government or another defending party - The standard of proof is on a BoP Presumption of constitutionality

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - No presumption of constitutionality (although the reading down principle of interpretation applies) Limits -There is one decision of the SCC that holds that not every Charter infringement is a limit, and any infringement that is more than a limit cannot be justified under s 1 The Oakes test - There are 4 aspects to it (1) Sufficiently important objective (2) Rational connection (3) Least drastic means (4) Proportionate effect - The s 1 inquiry almost always turns on the answer to (3) (i.e. minimum impairment) - Note that before going through the Oakes test, ask whether the limit is prescribed by law (if an act is not legally authorized, it can never be justified under s 1, no matter how reasonable or demonstrably justified it may appear to be) PART 1: Sufficiently important objective Determining the objective - Not easy to determine the objective - It can be expressed at various levels of generality (the higher the level of generality, the more desirable the objective will be) - The level of generality can have a serious impact on whether the minimum impairment limb will be passed - The statement of the objective should be related to the infringement of the Charter, rather than to other goals. E.g. In RJR MacDonald v Canada, the challenged law banned advertising on tobacco products. Thus, the objective should not have been phrased as the protection of public health from the use of tobacco. In that case, it was said that the objective must be to prevent people in Canada from being persuaded by advertising and promotion to use tobacco products. - E.g. In Irwin Toy, the impugned law prohibited advertising directed at children under 13. The majority defined the objective at a very low level, as the protection of children from advertising - DEFINE THE OBJECTIVE AT A FAIRLY HIGH LEVEL OF GENERALITY WITHOUT JUST RESTATING THE LAW Importance of objective - The objective, once stating it, must be said to be sufficiently important - First, it must be consistent with the values of a free and democratic society - Second, the objective must relate to concerns which are pressing and substantial - Third, the objective must be directed to the realization of collective goals of fundamental importance Cost - Is it a possible justification of a limit on a Charter right that the limit will save money? - R v Lee suggests YES PART 2: Proportionality test (1) Rational connection Definition - The requirement of rational connection calls for an assessment of how well the legislative garment has been tailored to suit its purpose. The law must be carefully designed to achieve the objective in question; it should not be arbitrary, unfair, or based on irrational considerations - E.g. Benner v Canada: Law required person born to a Canadian mother to apply for a citizenship and pass a security check, while there person born to a Canadian father was entitled to citizenship automatically upon registering the birth in Canada. The objective was said to be to screen potential citizens in order to keep dangerous people out (re: required security check). The Court held that there was no rational connection b/w the objective and the discrimination. Children of Canadian mothers could not rationally be regarded as more dangerous than children of Canadian fathers Causation - The essence of rational connection is a causal relationship between the objective of the law and the measures enacted by the law (2) Minimum impairment Definition - The limit on the Charter right must be the minimum that is necessary to accomplish the desired objective Margin of appreciation - But court must pay some degree of deference to legislative choices - The majority in Edwards Books recognised this idea of a margin of appreciation we look for a reasonable legislative effort to minimize the infringement of the Charter right, rather than insisting that only the least possible infringement could survive (3) Proportionate effect - The effects of the limiting measures must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgement of the rights - This should take into account the proportionateity between the deleterious and the salutary effects of the measures - Question is whether the Charter infringement is too high a price to pay for the benefit of the law - This test, however, has never influenced the outcome of a case, and it is redundant

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] - If the first part of the test is passed (sufficient objective), then this one should necessarily be passed as well

Apprehended infringements - Not permitted, but see R v Demers Court of competent jurisdiction - s 24(1) remedies may be granted only by a court of competent jurisdiction (unlike s 52(1)) Range of remedies - This section doesnt limit the range of remedies available - Subject to the important qualification that a remedy must be appropriate and just in all the circumstances of the case, there is no limit to the remedies that may be ordered under this section - There are defensive remedies (where the court nullifies or stops an act, for example by dismissing a charge, staying a proceeding, quashing a warrant), and affirmative remedies (such as ordering a province to provide state-funded couinsel to an indigent litigant, ordering the return of goods improperly seized or a mandatory injunction requiring positive action) - Damages is sometimes appropriate, and so is an order of costs Schachter v Canada FACTS: A s 15 claim was made. ISSUE: Does s. 24(1) of the Charter confer on the Federal Court Trial Division the power to order that natural parents are entitled to benefits on the same terms as benefits are available to adoptive parents under s. 32 (subsequently s. 20) of that Act? REASONING: A court has flexibility in determining what course of action to take following a violation of the Charter which didnt survive s 1 scrutiny In choosing how to apply s. 52 or s. 24 a court will determine its course of action with reference to the nature of the violation and the context of the specific legislation under consideration Section 52 The Doctrine of Severance Generally speaking, when only a part of a statute or provision violates the Constitution, it is common sense that only the offending portion should be declared to be of no force or effect, and the rest should be spared. The doctrine of severance requires that a court define carefully the extent of the inconsistency between the statute in question and the requirements of the Constitution, and then declare inoperative (a) the inconsistent portion, and (b) such part of the remainder of which it cannot be safely assumed that the legislature would have enacted it without the inconsistent portion.

[11]

REMEDIES: ss 52 (Constitution Act, 1982) and 24(1) (Charter)

The supremacy clause S 52 - The supremacy clause gives to the Charter overriding effect, as the Charter is part of the Constitution - The effect of the supremacy clause is to preserve all pre-existing remedies for unconstitutional action and extend those remedies to the Charter of Rights (this is unlike s 24(1), the other remedy section, which authorities a court of competent jurisdiction to award a remedy for a breach of the Charter) - There are 6 choices of available remedies for s 52(1): (1) Nullification (2) Temporary validity: The rationale for this remedy is that it would be better for Parliament/legislatures to correct the constitutional defect (dialogue) (3) Severance (4) Reading in (Schachter): Applies to under inclusive statute which, usually, confers a benefit on a class that failed to include all persons who had an equality based right to be included. (5) Reading down (6) Constitutional exemption Remedy clause S 24(1) - This section provides for the granting of a remedy to enforce the rights or freedoms guaranteed by the Charter (i.e. it is applicable only to breaches of the Charter) - S 24(1) is needed only where a remedy provided by the general law is not available, or will not provide satisfactory redress. - Generally speaking, it will be the declaration of invalidity under s 52(1) that provides the remedy for laws that violate a Charter right, while s 24(1) provides the remedy for government acts that violate an individuals Charter right Standing - It is the persons whose rights have been infringed or denied that is given standing

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] Reading In as Akin to Severance In the usual case of severance the inconsistency is defined as something improperly included in the statute which can be severed and struck down. In the case of reading in the inconsistency is defined as what the statute wrongly excludes rather than what it wrongly includes Deciding whether Severance or Reading in is Appropriate Having determined what the extent of the inconsistency is, the next question is whether that inconsistency may be dealt with by way of severance, or in some cases reading in, or whether an impugned provision must be struck down in its entirety Regarding the reading in remedy, in some cases, the question of how the statute ought to be extended in order to comply with the Constitution cannot be answered with a sufficient degree of precision on the basis of constitutional analysis. In such a case, it is the legislature's role to fill in the gaps, not the court's The remedy must not intrude on legislative sphere, and the degree to which a particular remedy intrudes into the legislative sphere can only be determined by giving careful attention to the objective embodied in the legislation in question One way to ask whether to read in or sever would be an illegitimate intrusion into the legislative sphere is to ask whether the significance of the part which would remain is substantially changed when the offending part is excised Another way is to look at the significance of the remaining portion: has the permissible portion always been there? If so, then it would be safe to assume that the legislature would have enacted the permissible portion without the impermissible portion There is no easy formula by which a court may decide whether to sever or read in. While respect for the role of the legislature and the purposes of the Charter are the twin guiding principles, these principles can only be fulfilled with respect to the variety of considerations set out above which require careful attention in each case Whether to Temporarily Suspend the Declaration of Invalidity Having identified the extent of the inconsistency, and having determined whether that inconsistency should be dealt with by way of striking down, severance or reading in, the court has identified what portion must be struck down. The final step is to determine whether the declaration of invalidity of that portion should be temporarily suspended. A court may strike down legislation or a legislative provision but suspend the effect of that declaration until Parliament or the provincial legislature has had an opportunity to fill the void This approach is clearly appropriate where the striking down of a provision poses a potential danger to the public It may also be appropriate in cases of underinclusiveness as opposed to overbreadth. For example, in this case some of the interveners argued that in cases where a denial of equal benefit of the law is alleged, the legislation in question is not usually problematic in and of itself. It is its underinclusiveness that is problematic so striking down the law immediately would deprive deserving persons of benefits without providing them to the applicant Summary of s 52 Section 52 is engaged when a law is itself held to be unconstitutional, as opposed to simply a particular action taken under it Once s. 52 is engaged, three questions must be answered. First, what is the extent of the inconsistency? Second, can that inconsistency be dealt with alone, by way of severance or reading in, or are other parts of the legislation inextricably linked to it? Third, should the declaration of invalidity be temporarily suspended? The factors to be considered can be summarized as follows (i) The Extent of the Inconsistency The extent of the inconsistency should be defined: A. broadly where the legislation in question fails the first branch of the Oakes test in that its purpose is held not to be sufficiently pressing or substantial to justify infringing a Charter right or, indeed, if the purpose is itself held to be unconstitutional -- perhaps the legislation in its entirety; B. more narrowly where the purpose is held to be sufficiently pressing and substantial, but the legislation fails the first element of the proportionality branch of the Oakes test in that the means used to achieve that purpose are held not to be rationally connected to it -- generally limited to the particular portion which fails the rational connection test; or, C. flexibly where the legislation fails the second or third element of the proportionality branch of the Oakes test. (ii) Severance/Reading In Severance or reading in will be warranted only in the clearest of cases, that is, where each of the following criteria is met: A. the legislative objective is obvious, or it is revealed through the evidence offered pursuant to the failed s. 1 argument, and severance or reading in would further that objective, or constitute a lesser interference with that objective than would striking down; B. the choice of means used by the legislature to further that objective is not so unequivocal that severance/reading in would constitute an unacceptable intrusion into the legislative domain; and, C. severance or reading in would not involve an intrusion into legislative budgetary decisions so substantial as to change the nature of the legislative scheme in question.

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] (iii) Temporarily Suspending the Declaration of Invalidity Temporarily suspending the declaration of invalidity to give Parliament or the provincial legislature in question an opportunity to bring the impugned legislation or legislative provision into line with its constitutional obligations will be warranted even where striking down has been deemed the most appropriate option on the basis of one of the above criteria if: A. striking down the legislation without enacting something in its place would pose a danger to the public; B. striking down the legislation without enacting something in its place would threaten the rule of law; or, C. the legislation was deemed unconstitutional because of underinclusiveness rather than over breadth, and therefore striking down the legislation would result in the deprivation of benefits from deserving persons without thereby benefitting the individual whose rights have been violated. Section 24 Section 24(1) Alone Where s. 52 of the Constitution Act, 1982 is not engaged, a remedy under s. 24(1) of the Charter may nonetheless be available. This will be the case where the statute or provision in question is not in and of itself unconstitutional, but some action taken under it infringes a person's Charter rights. Section 24(1) would there provide for an individual remedy for the person whose rights have been so infringed. Remedial Options Does s. 24(1) of the Charter confer on the Federal Court Trial Division the power to order that natural parents are entitled to benefits on the same terms as benefits are available to adoptive parents under s. 32 (subsequently s. 20) of that Act? The answer to question two is no. Section 24(1) provides an individual remedy for actions taken under a law which violate an individual's Charter rights. Again, however, a limited power to extend legislation is available to courts in appropriate circumstances by way of the power to read in derived from s. 52 of the Constitution Act, 1982. HELD: Appeal set aside Vriend v Alberta Remedy The leading case on constitutional remedies is Schachter The first step in selecting a remedial course under s. 52 is to define the extent of the Charter inconsistency which must be struck down. In the present case, that inconsistency is the exclusion of sexual orientation from the protected grounds of the IRPA. As I have concluded above, this exclusion is an unjustifiable infringement upon the equality rights guaranteed in s. 15 Once the Charter inconsistency has been identified, the second step is to determine which remedy is appropriate. In Schachter, this Court noted that, depending upon the circumstances, there are several remedial options available to a court in dealing with a Charter violation that was not saved by s. 1. These include striking down the legislation, severance of the offending sections, striking down or severance with a temporary suspension of the declaration of invalidity, reading down, and reading provisions into the legislation. Must apply the twin guiding principles here (respect for role of Legislature and purposes of Charter) Court chooses reading in as appropriate remedy: It seems to me that the remedy of reading in would minimize interference with this clearly legitimate legislative purpose and thereby avoid excessive intrusion into the legislative sphere whereas striking down the IRPA would deprive all Albertans of human rights protection and thereby unduly interfere with the scheme enacted by the Legislature. Also, this remedy respects purposes of Charter In Schachter, supra, Lamer C.J. noted that the twin guiding principles can only be fulfilled if due consideration is given to several additional criteria which further inform the determination as to whether the remedy of reading in is appropriate. These include remedial precision (this can be achieved here; just adding words sexual orientation), budgetary implications (not sufficiently significant here), effects on the thrust of the legislation (no deleterious impact, because all persons protected would continue to benefit), and interference with legislative objectives (reading in would only enhance the legislative objective).

[12]

CHARTER ANSWER STRUCTURE

(1) Application of the Charter: s 32, Constitution Act, 1982 Does the Charter apply in this situation? (Answer must be yes, but just mention it anyways, and say why) (2) Is there an override provision in the law: s 33 Note: Only mention this if there is an impugned Act (legislation). Does not apply to government actions. (3) Infringement of a Charter right The onus is on the applicant/claimant to demonstrate that an infringement has occurred (presumption of constitutionality) a. What is the purpose or effect or the law/action (Big M) b. Does its purpose or effect infringe a Charter right? [Note: This is where you outline the law of the relevant

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only] Charter right in relation to how what the right protects, e.g. does the effect of the legislation infringe freedom of religion? To answer that, first must define what religion is as per s 2(a)] c. Is the infringement more than trivial? (No Charter right, including freedom of religion, is absolute. Charter prohibits only burdens or impositions on religious practice that are nontrivial) (R v Jones) (4) Section 1 analysis (Oakes) Burden shifts to legislature/Parliament/government to justify violation The Charter does not guarantee rights absolutely. The violation may be lawful if it results in a reasonable limit, prescribed by law, that is demonstrably justified in a free and democratic society. a. Is the limit prescribed by law? (Consider whether the law is accessible, precise and not vague. Re: accessibility, a statute or regulation suffices: Dolphin Delivery. Re: precision and vagueness, make a judgment call) The next step is to apply the Oakes test: done to the claimants (list the right infringed) against the benefits associated with (state what the impugned law essentially does), is the limit on the right proportionate in effect to the public benefit conferred by the limit? - Salutary effects? - Deleterious effects? - Balancing the salutary and deleterious effects of the law, I conclude that the impact of the limit on (name the infringed right) (is/is not) proportionate. d. Conclusion? (e.g., Based on the analysis above, I conclude that I conclude that the limit on ____ is/is not justified under s 1) (5) Overall conclusion Therefore, _____ (does/does not) offend the Charter, and is therefore constitutionally (valid/invalid) (6) Remedies: ss 24 & 52 The next step would be a Court imposing a remedy

b. Does the legislation/action have a sufficiently pressing and substantial objective? c. Does the legislation/action pass the proportionality test? (i) Is the limit rationally connected to the legislative purpose? (the laws means must contribute to the achievement of its objectives) (ii) Does the limit minimally impair the right? (Means chosen must be the least restrictive manner of accomplishing the objective of the impugned provisions. Requires a consideration of alternatives available to government. In making this assessment, the courts accord the legislature a measure of deference, i.e. there is a margin of appreciation) (Edwards Books) (iii) Is the law proportionate in its effect? In other words, when one balances the harm

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6355, or e-mail him @ andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting. [Note: Toronto and surrounding area only]

POTENTIAL ESSAY QUESTIONS (1) Unwritten constitutional principles Positives: (a) Help resolve difficult legal/constitutional questions Negatives: (a) Uncertainty of what the constitution is (b) s 52(2) (i.e. definition of Constitution) is expressed solely in terms of written instruments (so, perhaps, adding unwritten principles goes against the grain of the intention of the drafters) (c) Erodes relationship b/w judiciary and the legislative/executive (d) Principles are vague, yet rights and liabilities are determined by them; difficult to apply (e.g. what does the Court mean by minorities) (2) Dialogue between courts and legislature (3) Evaluating s 33 (4) Evaluating s 35 (5) Evaluating the various ways of interpreting the Charter (6) Evaluate the decision of the SCC to interpret PoFJ to include substantive protections and not just procedural ones (7) Whether having substantive fundamental justice was a good decision (i) There is a problem with moving to substantive justice = indeterminacy (ii) Subjective foreseeability is required for murder to comply with POFJ (R v Martineau). But dissent pointed out that subjective foresight of death has never been the exclusive standard for murder in Canada or in other countries thatve inherited English principles of criminal law. How then did it suddenly become a basic tenet of the legal system? This points to the indeterminacy of the doctrine of substantive fundamental justice, and its dependence on the moral attitudes of the judges (ii) Example of variety of definitions of what POFJ is (if it was simply procedural, than easier to define)