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Hogg - Sources a) Constitutional law defined: constitutionalism/rule of law - thi is limited by law, officials must act within law. parliament of canada and legislature of provinces must stay within powers allocated to them. b) Constitutional Act, 1867 (BNA): created new Dominion of Canada, established ruled of federalism, allocated govt power between central and provincial institutions. Has lots of gaps: no amendment clause, must be done by imperial parliament; gives powers to governor general but didnt create or appoint or tenure, queen appoints; did not write rules of relationship between executive (cabinet, pm) and legislature; did not write supreme court into it either, its existence, composition, jdx is by federal statute. BNA wanted to look at privy council of England as final appellate authority - but not mentioned in BNA. Bill of Rights also made by federal statute, Charter too but applicable to provinces and federal laws. c) Constitutional Act, 1982: domestic amending formula adopted, UK authority was terminated, Charter was adopted. Canada Act 1982 terminates authority over Canada by UK. Can Act does not amend BNA, yet Con Act 1982 does. Both Acts are self sufficient. Rationalizations of Con Act: 1) name changed, 2) put in definition of Constitution of Canada. (1) Constitution of Canada 1982 includes: (a) Canada Act 1982 (including Con Act 82) and this act, (b) acts and orders referred to in schedule (including BNA and other 30 acts), amendments to any act or referred to in para a) or b) - future amendments. (a) includes means list is not exhaustive (New Brunswick Broadcasting Co. v. Nova Scotia (1993). Held that unwritten doctrine of parliamentary privilege should be included in the definition, although S. 52 makes no mention of privilege. (list is exhaustive now, or can court add more?) (b) S. 52(1) supremacy clause: Constitution of Canada is supreme law of the land, any law inconsistent with it, is of no force or effect. (c) S. 52(3) entrenchment clause: amendments to Constitution of Canada shall be made only in accordance with authority contained in the Constitution. (it cannot be amended by ordinary legislative action but only special procedures laid by Part V of Con Act 1982). (d) Imperial statutes: BNA and Con Act 1982 are imperial because both are enacted for Canada by UK in its role as imperial parliament. Both are within definition of Constitution of Canada in s. 52 and most important elements. (e) It icludes 8 statutes, three of these create provinces Man, Alb, Sask. Other 5 were amendments to BNA.8 Statutes are supreme over other federal statutes under S. 52(1) and are entrenched (cant be altered except by amending procedures). Others it has: Bill of Rights 1960, statute that creates Supreme Court of Canada 1875, statute that created Federal Court of Canada 1875. (f) *Look below at powers and privileges for their section numbers covered in the Constitution Act. (2) Charter of Rights & Freedoms: found in part I: schedule B - s.52. (a) Freedom of association: Health services bargaining case (2007): this protects trade unions right to collective bargaining, collective bargaining entered into by union & employer. BC passed statute to weaken job protection provisions (lay offs, seniority) to help hospitals operate efficiently. Court held that statute was invalid as breach of freedom of association (not superior in force to collective agreement, as thought in past, collective agreement is superior). d) Parliamentary Privilege: parliament and provincial legislative bodies have sets of powers and authorities that are necessary to their function. (also includes immunity from legal proceedings for things said in debate, control of publication of debates, right not to testify in court when Parliament/legislature in session). Not found in statute, but in common law. (1) Powers and privileges of Provincial legislative assembly can be altered by statute enacted by Legislature on basis that powers/privileges are a part of the constitution of the province. Power of each provincial legislature over the constitution of province is in s. 45 of the Constitution Act 1982 (a) New Brunswick Broadcasting Co v. Nova Scotia: Court held that Nova Scotia legislative assembly can ban televising its proceedings because power to exclude strangers from its chambers was part of its parliamentary privilege. Established privilege was inherent in creation of provincial Legislature. (It like royal prerogative but can be distinguished by two peculiar characteristics -- read below) i) privilege is part of the Constitution of Canada ii) powers authorized by parliamentary privilege are not subject to the Charter of rights. All other common law, federal parliament and provincial legislatures must abide by Charter (in New Brunswick case the Court did

not consider whether assemblys denial of access to media breached freedom of press gauranteed by s. 2(b) of the Charter) (2) Federal parliament has power over 2 houses (House and Senate) under s. 44 of Con Act 1982. It power to enact laws defining privileges of the Senate and House under s. 18 of the Con Act 1982. Federal privileges are ascertained by reference to law and custom of the House at Westminster. If existence and scope is established in Westminster, then it exists in Ottawa, without inquiring into its necessity. (parliamentary privilege at federal level is legislated). (a) Canada v. Vaid (2005): chauffer of the Speaker of the house alleged he had been constructively dismissed on grounds forbidden by Canadian Human Rights Act, then complained to Human Rights Commission. House and Speaker argued that hiring/firing of employees is internal affairs, not subject to review by tribunal or court, except Parliament. Court rejected because failed test of necessity. Reasoning: Exclusive jdx over House employees is not necessary for functioning of the House. Management of some employees is necessary to protect functions of House and is protected by privilege, but privilege does not extend to majority of House employees who staff restaurant, library, repair, maintenance, parking, traffic control - things indirectly connected to legislative proceedings. (3) No difference between legislated privilege and inherent privilege, both are exempt from the Charter. (4) Other case law: Re Remuneration of Judges (1997): Court asserted that there was unwritten principal of judicial independence in the Constitution of Canada that could have effect of invalidating statutes that reduced judicial salaries. Secession Reference (1998): Court invoked unwritten principles of democracy, federalism, constitutionalism, protection of minorities; to hold that if provinces were to decide on referendum that it wanted to secede from Canada, federal govt had provinces have duty to enter into negotiations and accomplish secession. (case law has important rule in con law). e) Prerogative: powers and privileges derived by common law (case law decisions) that are unique and exclusive to the Crown. Courts determine if prerogative power exerted by Crown exists, if it exists, what are its limits, whether any restrictions on power have been complied with; whether power has been displaced by statute; whether it has been exercise in conformity with the Charter and other constitutional norms, and administrative-law norms (ie. duty of fairness); whether the power has been properly delegated. The exercise of Crowns prerogative powers is regulated by conventions, not laws. f) Conventions: rules of the constitution that are not enforced by courts (aka. non-legal rules). They prescribe the way in which legal powers should be exercised. Some transfer effective power from legal holder to another official or institution. Others limit an apparently broad legal power or prescribe that a legal power should not be exercised at all. (1) Two examples: (a) The Constitution Act 1867 confers power on Governor General or GG in Council, but a convention stipulates that GG will exercise those powers only in accordance with the advice of the cabinet or Prime Minister. (if GG exercises power without advice or in violation of, courts would NOT deny validity of act b/c conventions are not enforceable by courts). (b) The Constitution Act 1867 makes the Queen or GG an essential party to all federal legislation (s. 17) and confers power to withhold royal assent from bill that has been enacted by the House (s. 55) but a convention stipulates that the royal assent shall never be withheld. (if GG denied assent to bill, courts would deny force of law to the bill, and would NOT issue injunction or other remedy to force GG to assent). (c) If convention disobeyed/breached by official = unconstitutional (no breach of law has occurred and no legal remedy is available) (2) Convention in the courts: not enforced by courts, but its existence is recognized, which is relevant to disposition of a legal issue, usually interpretation of statute or constitution. (a) Patriation Reference (1981): Provinces opposed to PM Trudeaus proposal for constitutional settlement and amending procedure and a charter. Court asked if there was a convention requiring consent before requesting UK to enact amendment that would affect provinces, and if there is a legal requirement of provincial consent. Held there was no legal requirement of provincial consent to constitutional provisions. Majority held there was a convention, and it required fed govt to obtain substantial degree (rule) of provincial consent. (later agreed and became Canada Act 1982 and Constitutional Act 1982) (b) Quebec Veto Reference (1982): all but Quebec consented to issue above, and it was the only French speaking province with over 25% of Canadas population. Issue: was its consent needed to be part of substantial degree of provincial consent? Case became moot because Canada Act was enacted by then. Court held that consent not needed, all other 9, English speaking provinces comprised of substantial degree (c) Issue comes down to whether answering convention questions were suitable for judicial determination. (3) Convention and usage: convention is a rule regarded as obligatory by officials whom it applies to. Usage is not rule, but merely a govt practice that is ordinarily followed, but not obligatory. Usage may develop into a convention. If practice is followed over a long period of time, may be regarded has obligatory and then may cease to be usage. resulting

convention may be called custom. Process of evolution from usage to convention (or custom) is the way in which most conventions have been established. Both are uneforceable. There is stronger moral obligation to follow a convention than usage. Departure from convention may be criticized more severely than departure from usage. (conventions made from usage are rarely written down in terms that are accepted as precise and authoritative). (a) Example of usage: practice of appointing to the position of Chief Justice the person who is of senior puisne judge of the Supreme Court at the time of the vacancy. (b) Patriation Reference: issue - whether past practicing of securing provincial consent to constitutional amendments affecting provincial powers was a usage (fed govt argued) or convention (provinces argued)? Court looked at three questions below. Court found 1) there had been invariable practice in legislative powers, 2) actors on federal side felt bound to obtain provincial consents (found from federal white paper and fed ministers), 3) reason found in federal principle which condemned modifications of provincial powers by unilateral action of federal authorities. Conclusion: it was a convention. i) Convention/usage test (1) What were the precedents? (2) What were the beliefs of the actors in the precedents (3) What was the reason for the practice? ii) Substantial measure rule (4) Convention and agreement: some agreements establish conventions. These will normally be written down by the officials concerned, in precise and authoritative terms. Conventions are not necessarily unwritten rules. Example: 1930 Prime Ministers of self governing dominions of Commonwealth agreed that King/Queen would appoint GG of dominion solely on advice of govt of dominion. Also agreed that imperial Parliament would not enact a law for any of the dominions except at the request and consent of the dominion. (5) Convention and law: convention can transform into law by being enacted by statute or enforced by courts. Example: court gives remedy for breach of convention by making GG give assent to bill enacted by Parliament. We would have to change language and say GG was under legal obligation to assent, and not merely a conventional obligation. (a) Conventions cannot be enforced, but are still obeyed because breach of it would result in political repercussions. (ie. GG would be dismissed if refused to assent or act w/o advice). Conventions regulate the way in which legal powers are exercised and presuppose existence of legal powers. (b) Purpose is to ensure that legal framework of constitution will be operated in accordance w/ the prevailing constitutional values or principles of the period. Bring outdated powers in conformity with todays notions. Makes intolerable powers as written, tolerable. Conventions allow law to adapt to changing political realities without the necessity for formal amendment. (6) Convention and policy: Court faced argument by public school supporters that provincial education statutes violated a constitutional convention - statute restricted traditional autonomy of school boards by imposing increased central govt control them. (if argument successful would help repeal or amend statutes). Court held that no convention restricted this policy or substance of what could be enacted by the provincial legislature in exercise of its power to make laws related to education (s. 93 Constitution Act 1867). Conventions affect only the structure of govt power, not the policies to which govt power was addressed. 2. Reference re Secession of Quebec, [1998] 2 SCR 217 a) Read highlighted main points, in the saved copy, in pages. B. AMENDING PROCEDURES 1. Hogg Ch. 4 Amendment a) History of amendment (1) Imperial amendment: BNA Act (Con Act 1867) contained no general provision for its own amendment b/c framers were content for amendments to be made in the same way as the BNA act itself - by imperial parliament. (2) Patriation Reference (1982): consent of the provinces to proposed amendments was not required as a matter of law, but that a substantial degree of provincial consent was required as a matter of convention. (3) Constitution Act 82 adopted domestic amending procedures (ss.38-49), Charter (1-34), aboriginal rights recognized (35), equalization guaranteed (36), provincial powers over natural resources extended (50-51), Constitution of Canada was defined and given supremacy over other laws (52). But failed to better accommodate Quebec within Canadian federation (a) New amending procedures denied veto to Quebec. Charter limited capacity of Quebec National Assembly to implement French language policy. b)Part V of the Constitution Act 1982 (ss.38-49); (1) Provides 5 different amending procedures:

(a) General amending procedures (38) for amendments not otherwise provided for (and for those in 42), requiring the assents of the federal Parliament and two-thirds of the provinces representing 50% of the population (b) Unanimity procedure (41) for five different kinds of amendments, requiring assents of the federal parliament and all of the provinces (c) A some-but-not-all provinces procedures (43) for amendment of provisions not applying to all provinces, requiring the assents of the federal Parliament and only those provinces affected (d) The federal Parliament alone (44) has power to amend provisions relating to the federal executive and House of Parliament (e) Each provincial Legislature alone (45) has power to amend the constitution of the province (2) Constitution of Canada: is in sec 52 of Con Act. Same amending procedures apply. Anything not part of Con of Canada can be amended by ordinary action of the competent legislative body. Sect 41(a) requires unanimity for amendments to office of Queen, governor general, and lieutenant governor of province. Act is freely amendable by Parliament. The Supreme Court of Canada Act is not part of the Constitution of Canada, and requires general (seven-fifty) amending procedures. (composition of Supreme Court requires unanimity). (3) Charter of Rights: is part of constitution and requires general (seven-fifty) amending procedures. Doesnt apply to general (38), unanimity (41) or some-but-not-all provinces procedure (43). (4) S. 44 of Constitution Act 82, Parliament alone has the power to enact amendments to the Constitution of Canada in relation to federal executive and Houses of parliament, and under s.45, each provincial legislature has power to enact amendments to constitution of the province. Held that provincial laws respecting electoral districts, qualifications of candidates for election, although constituting amendments to the constitution of the province, are subject to Charter of Rights. c) General amending procedures - S. 38(1) (1) Amendment to Constitution of Canada be authorized by a) resolutions of both Senate and House of Commons, and b) resolutions of the legislative assemblies of at least two-thirds of the provinces, provided that they represent at least 50 per cent of the population of all the provinces. (a) 2/3 requirement means that at least 7 of the10 provinces must agree to amendment. 7 provinces would include at least one of four western provinces and one of four atlantic. (b) 50% population requirement means that agreeing provinces must include at least one of Ontario or Quebec, since combined is more than 50% (Ontario 12.5 million, Quebec 7.6 million) (2) Proclamation: once authority for amendment has been provided, 38(1) states that formal act of amendment is accomplished by proclamation issued by governor general under Great Seal of Canada. (a) Limits under section 39(1): proclamation is not to be issued until a full year has elapsed from the adoption of the resolution, initiating the amendment procedure, unless all provinces have adopted resolutions of assent or dissent. (purpose is to give each legislative assembly time to consider each proposal). (b) Limits under section 39(2): proclamation is not to be issued after 3 years have elapsed from the adoption of the resolution initiating the amendment procedure. (purpose is to prevent proposed amendment from limping along for many years, gradually picking up assents, and coming into force without ever having had widespread support). (3) Initiation: procedure for amendment may be initiated by Senate or House or by legislative assembly of province sec 46(1) (4) Opting out: permitted by sec 38(3) - permits legislative assembly of any province to pass resolution of dissent to an amendment of the kind described, and then the amendment, shall not have effect in that province. This is not a veto or unanimity, it just enables province to opt out if it derogates provinces powers, rights, privileges and is unacceptable to it. Max 3 provinces can opt out. If theres more, amendment would not have support of two-thirds of the provinces and would then be defeated. (a) Resolution of dissent must be passed prior to issue of the proclamation to which amendment relates. Can also opt in and revoke resolution at ay time before or after the issue of proclamation. (resolution of assent can only be revoked before issue of proclamation). (5) Compensation for opting out: when amendment transfers provincial legislative powers relating to education or other cultural matters from provincial legislature to Parliament, Canada shall provide reasonable compensation to any province that has opted out. (purpose is to ensure province is not pressured by financial considerations into abandoning jdx over education/cultural matters). Amendments that do not relate to education/cultural matters do not carry any constitutional right to compensation for opting out. (this was put in b/c of Quebecs special significance) (6) Revocation of assent or dissent: resolution of assent may be revoked only before the issue of proclamation. Cannot revoke it after b/c would render every amendment vulnerable to abrogation by action of single province. Resolution of

dissent (opting out) can be revoked at any time, before or after the issue of proclamation. Can revoke after b/c only has the effect of extending the opted out province an amendment which is already applicable to other provinces. (7) Section 42(1): lists 6 matters in respect of which an amendment to the Constitution of Canada may be made only in accordance with general amending procedure (38(1) - two thirds provinces with 50%) (a) Principle of proportionate representation of the provinces in the House prescribed by the Constitution of Canada - this guaranteed each province min number of Commons seat equal to number of provinces Senate seats. Purpose was to limit decline in representation of maritime provinces that was caused by declining populations. i) Campbell v. Canada (1988): held, that to a provision to protect representation of declining provinces should not be regarded as offending the principle of proportionate representation and did not require a seven-fifty amendment under s. 42(1)(a). (b) Powers of senate & method of selecting. (amendment through seven-fifty formula of S. 38) (c) Number of members by which province can be represented by Senate. (amendment through sevenfifty formula of S. 38) (d) Subject to 41(d), Supreme Court of Canada - in all aspects other than its composition (unanimity amendment procedure). i) Puzzling b/c Supreme Court not mentioned in Constitution of Canada, but constituted by Supreme Court Act, which is federal statute. 42 applies to amendments to Constitution of Canada, so Parliament acting under 101 of Constitution Act 1867 still has power to amend Supreme Court Act. Power would cease, and 42(d) becomes effective to adopt Supreme Court into Constitution of Canada. (e) Extension of existing provinces into the territories - allowed by Constitution Act 1871 s. 3 (f) Notwithstanding any other law or practice, the establishment of new provinces - allowed by Constitution Act 1871 s. 2 (both e and f protect ss. 2 and 3 of the Constitution Act 1871 from repeal or amendment, except by seven-fifty formula). (8) Section 42(2): 38(2) to (4) do not apply in respect of amendments in relation to matters referred to in subsection (1) - prohibits province from opting out of amendments coming within s. 42 (9) Regional veto statute: general amending formula does not give any province a veto over constitutional amendments. Regional veto enacted to ensure Quebec would in future have a veto over most constitutional amendments. Went back to Victoria formula (designed to achieve what Meech and Charlottetown Accords failed, but makes the constitutional even more hard to amend) (a) Purpose of statute is to import new conditions into general amending formula. (b) Imposes new statutory requirements that 7 agreeing provinces must include 5 regions: Ontario, Quebec, BC, 2 Atlantic provinces, 2 Prairie provinces. (c) Since this veto is statutory, it can be repealed or amended by Parliament at any time in future. (d) Only applies to amendments that are to follow the general seven-fifty amending procedure and that do not afford a dissenting province the constitutional right to opt out, amendments that require unanimity under 21 or must be ratified by some but not all provinces under 42 are excluded. d)Unanimity procedure - s. 41 (1) Lists five matters in which amendment of Constitution of Canada requires unanimous support of provinces as opposed to two-thirds majority called by general amending procedure 38(1). Here, each province has a veto over amendments. Amendment may be made by proclamation by Governor General under Great Seal of Canada only where authorized by Senate and House and legislative assembly of each province: (a) Office of Queen, governor general, lieutenant governor of a province (b) Right of province to number of members in the House, not less than number in Senate by which province is entitled to be represented by (c) Subject to 42, use of English or French language (d) The composition of Supreme Court of Canada (Supreme Court Act is not part of Constitution of Canada, Comp can still be changed by ordinary legislative process through parliament). (e) An amendment to this part (any amendment here can be effected by unanimity procedure of s.41) e) Some-but-not-all provinces procedures - S. 43: an amendment to Constitution of Can in relation to any provision that applies to one or more but not all provinces, including: a) any alternation to boundaries between provinces, and b) any amendment to any provision that relates to the use of English or French , may be made by proclamation issued by GG

(1) This applies to provision of Constitution that only applies to one province, when provision is in instrument that comprises Constitution of Can in it. Any part of constitution of province that is to be found within Con of Can may be amended only by procedure stipulated by S 43 that procedure includes resolutions by Senate and House. f) Federal parliament alone - S. 44: subject to 41 and 42, parliament ma exclusively make law amending the Con of Can in relation to the executive govt of Canada or the Senate and House. (1) 41 (includes Queen, GG, min provincial rep in the House), can be amended by unanimous consent of provinces. 42 (House and Senate rules) can be amended by general (seven-fifty) procedure of S. 38 - requires consent of two-thirds of provinces having at least 50% of population. g) Provincial legislature alone - S. 45: Subject to 41, legislature of each province may exclusively make laws amending the constitution of the province. (41 requires amendment relating to office of Lieutenant Governor made only with unanimous consent of all provinces). Differs from 38, 41, 42, 43, 44, in that 45 makes no reference to Constitution of Canada. h)Future amendments (1) Forces of change: (a) French-Canadian nationalism; minority nation but majority in Quebec. Distinctive language, culture, danger of assimilation, memory of English conquest - great power in their legislature. Reduced powers in their Assembly, Meech Lake Accord fell 2 provinces short, Charlottetown, rejected in national referendum. Referendum was defeated again but closely. (b) Western regionalism: based on distinct economic base of 4 western provinces - based on grain, wood, metals, oils, gas, minerals. Federal policies favor Quebec and Ontario b/c bulk of population (manufacturing industries and consumers). Western responses - reduce federal power and increase provincial govt power. (c) Aboriginal demands: have guarantee of existing treaty rights, but problem is land. They seek self government and right to participate in process of constitutional amendment where their rights could be affected. Charlottetown Accord was defeated. (d) Canadian nationalism: which addressed removal of colonial relationship with UK. Did Patriation and adopted domestic amending procedures. But patriation did not touch position of Queen who is still head of state, nor that Canada is still part of Commonwealth of Nations. (e) Civil libertarian impulse to entrench Charter of Rights in the Constitution: Quebec never agreed to Charter, and wanted to insert clause that its a distinct society in Constitution, so that it can sustain against Charter challenge those law that were designed to protect French language & culture. (f) Continuing need for amendments: necessary to repair gaps in existing constitutional provisions, to alter judicial interpretations that are unacceptable, or to give effect to values that were not recognized at the time of confederation. (amendments to confer powers over unemployment insurance, old age pensions, retiring age imposed on superior court judges). (2) Division of powers: most obvious way to redress grievances is to reduce federal power, increase provincial power. Only change done so far increase provincial power over natural resources (tax and control production and price). Decentralization. Not practical, for smaller province rely on federal spending for protection from affects of other provincess policies, their own standard of living. (3) Central institutions: reform federal govt so regional attitudes and interests are effectively represented. (Intrastate federalism) (a) Make senate into house of provinces: one rep from each province they have say in federal polices. Or make it elected senate so its represented equally by each province. (b) Introduce provincial role in appointing judges, rules ensuring they are from all regions restructuring courts with a special constitutional court or panel (4) Criticisms of amending procedures: MeechLake failed b/c over next 3 years provincial elections caused changes in govt before process of ratification by all legislative assemblies was complete, and each new govt refused to respect agreement of predecessor. Accord lapsed b/c 2 assemblies did not ratify within 3 year time limit. (a) 3 year period is too long (period is supposed to ensure public process to review proposal) (b) Public consultations for Charlottetown was too much and too large, yet still failed. (c) Agreement of first ministers: turns into bargaining (d) Initiative and referendum: proposal for constitutional amendment could be initiated by petition signed by a stipulated (fairly large) number of voters, and could be adopted by referendum that obtained majorities in each region of country. This would place control over amending powers in hands of the people, instead of political elites. Govt will not be excluded, they could campaign for or against proposals, but campaign would have to be addressed to the merits of the particular proposal.

2. Ch. 5.7 Secession a) The power to secede: no unilateral succession is possible b/c not mentioned any the Constitution. Quebec held a referendum in 1995 regarding whether it should become sovereign, made formal offer to Canada for a new economic and political partnership terms made it clear that it was going to be declared sovereign regardless of whether Canada accepted the offer or not. And the referendum made clear that Quebec National Assembly made clear that it was empowered to proclaim Quebec as a sovereign state as soon as partnership negotiations were complete. b) Referendum assumed that unilateral declaration of independence would be legally effective without the need to amend the constitution of Canada. c) Challenged by private party Guy Bertrand, who obtained declaration from Quebec Superior court that Q had no power to proclaim itself independent in disregard of the amending procedures of the Constitution. Injunction denied. d) Look below at Reference re Secession of Quebec notes e) Clarity Act enacted by Parliament to determine clear majority on a clear question. (1) Section 1 provides House of Commons will considered if proposed question is clear. Whether it is clear depends on the opinion of the House, if the question would result in a clear expression of the will that the provinces population wants to cease being a part of Canada and wants to become independent. (a) Question is not clear if it focuses on mandate to negotiate or if it envisages economic or political arrangements with Canada that obscure a direct expression of the populations will. (b) If question is not clear, govt of Canada is prohibited from entering negotiations of secession, following a referendum based on the question. (2) Section 2: if question is clear and if referendum on question gains majority in favor, House is to consider the result and determine whether the majority is clear. (When is a majority clear, is undefined). House will look into size, percentage of eligible voters who voted. House will make judgment in all circumstances of a particular referendum as to whether majority large enough and sufficiently includes minorities to form a new state. (a) If House finds that majority in favor of secession is not clear, then again, no negotiations. (3) Section 3: recognizes that there is no right of unilateral secession and that an amendment of the Constitution of Canada would be required for a province to secede from Canada. Even if question is clear and majority is clear, no Minister of the Crown is to propose a constitutional amendment to effect the secession of the province unless the govt of Canada had addressed, in its negotiations, the terms of secession that are relevant, including division of assets, liabilities, border changes, rights interests and territorial claims of Aboriginal peoples, and protection of minority rights. f) Secession by Amendment: not clear which of the 5 amending procedures is correct one. (1) Not S.45 (province can amend on its own) b/s secession would not be just amending of provincial constitution. Not S.44 or S. 43 (2) S. 38 (seven-fifty formula) requiring assents of both houses of the federal Parliament and of the legislative assemblies of two thirds of the provinces representing 50% of the population. (a) This section covers all matters not provided for, and secession is not provided for. (3) Unanimity procedure of S. 41 (assent of both houses and legislative assemblies of all provinces). (a) Secession would have an indirect impact on the matters specified in this section. g) Secession by unilateral act: 3. Reference re Secession of Quebec, [1998] 2 SCR 218 a) Was reference by federal govt to the Supreme Court of Canada in which Court was asked whether Q could secede unilaterally from Canada. b) Questions/Answers put forth to the court: (1) What was the position under the Constitution of Canada, to which the Court replied - that unilateral secession was not permitted (2) What was the position under international law, to which the court gave the same answer (3) What was the Courts position if the Constitution of Canada and international law were in conflict - question did not have to be answered. c) Holding: secession from Canada of a province could not be undertaken in defiance of the terms of the Constitution of Canada. Rule of law or constitutionalism (and principles of democracy) required that govt, must still obey rules of Constitution. d) Rule: A secession would require an amendment of the Constitution of Canada, and would have to be accomplished in accordance with the Constitutions amending procedures. Procedure would involve participation of the fed govt and other provinces, negotiating with Quebec, based on principles of democracy and federalism, constitutionalism, rule of law, protection of minorities, all in good faith. e) Reasoning: if referendum has clear majority in favor of secession, this would confer legitimacy on demands for secession, and would give rise to reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire.

(1) Court refused to supervise over political aspects of negotiations, and acknowledged that remedies might be political. Political questions: a clear majority on a clear question, different parties were negotiating in good faith. (2) Secession by unilateral act: Principle of effectiveness - A de facto secession, occurring without agreement or amendment, would be unconstitutional. But it could become successful if suceeding govt achieved effective control of a territory and recognition by international community; Canada would have to recognize the reality then. (3) Obligation on the part of all parties to the amending procedures to use their best efforts to negotiate an agreed-upon amendment in the event that people of Quebec vote to secede by clear majority on a clear question. C.FEDERALISM AND JUDICIAL REVIEW 1. Constitutional Act, 1876 ss. 91-95 (Part VI. Distribution of legislative powers) a) 91: Powers of the parliament (look at list) b) 92: Powers of the provincial legislatures (look at list) (1) 92a: Non renewable natural resources, forestry resources and electrical energy c) 93: Education (1) Paragraphs 1 - 4 do not apply to Quebec. d) 94: Uniformity of laws in Ontario, Nova Scotia, and New Brunswick - can make laws relative to property and civil rights (1) 94a: Old age pensions -survivors and disability benefits too e) 95: Agriculture and Immigration: provinces can make laws about immigration. Time to time Parliament of Canada can make laws about agriculture and immigration for any province. Provincial law okay if not repugnant to any Act by Parliament. 2. Constitutional Act, 1982, s. 52 (Part VII. General) a) Constitutional Act of Canada is supreme law of the land. Includes Canada Act, this act, Acts in schedule, amendments to any of the Acts included. Amendments must be made according to Constitution. 3. Chapter 5, Federalism a) Distribution of governmental power (1) Federalism: govt is distributed between central (federal/national) authority and regional (provincial/state) authorities. Every individual in the state is subject to laws of both authorities. Both authorities are coordinate, meaning neither is subordinate to the other - neither can take each others powers away. Powers of city, local or municipal govts within federal state are subordinate to federal. (a) Unitary state: govt power is vested in one national authority; but they have local or municipal govts with law making power over their local territories, which are subordinate to national/federal authority. (UK and New Zealand) (b) Two levels of fed govt, federal authority extends through out country. If federal is inconsistent with provincial law, federal law will trump and prevail. (c) The federal principle: method of dividing power so that the federal and provincial govts are each within a sphere, co-ordinate and independent. (definition criticized as unduly stressing the separate and distinct spheres of the central and provincial authorities). i) Alternative definition: emphasizes the independence of central and regional/provincial authorities in a federal state, or the diversification of society within the federal state, or the existence within the state of distinctive groups with common objectives, or the constitutionally-entrenched incorporation of regional units in its decision-making procedures, or the existence of specific communities bound together under a common legal framework that has been adopted by covenant. (d) Distinctive issues in concerning distribution of legislative power, executive power, administration of justice that have to be resolved in each of the federal states, - these are unimportant in unitary states. These relate to the fact that in federal state, citizen is subject to two levels of govt. (e) Elements of interdependence of central and regional authorities - if nation paramount central power completely overlapped regional power OR If financial arrangements of nation subjected the regions to totally control central power, then nation would not be federal. It is only where overlapping of power is incomplete, or scope of central control is limited, we have federal power. Two levels of govt are within a sphere, coordinate and independent. (2) Confederation: outside Canada, term referred to mean a loose association of states in which central government is subordinate to the states. Central govt is the delegate of the states, its powers are delegated to it by the states, who retain the right to resume delegated powers if they wish. (a) Union of provinces in 1787, but central govt was independent and provinces coordinate with it. To the extent that provinces and central govt are not coordinate, provinces are subordinate to the central govt-- the opposite of confederation.

(3) Legislative union: united provinces form a new unitary state which incorporates the former units and subjects them to the authority of a single central legislature. (ie, UK is legislative union of England, Wales, Scotland, Northern Ireland & Parliament at Westminser has authority to legislate all four). (a) Upper Canada (Ontario wanted legislative union), but Lower Canada (Quebec, NB, NS, PEI) would not agree b/c Q feared loss of French language, culture, institutions, Roman Catholic religion to English speaking Protestant majority. Others feared local traditions and institutions. (union would have provided military strength needed for security, economic strength for prosperity) (4) Special status: term applied to proposals for constitutional change under which one province would possess large powers than the other provinces (Quebec). Would impose strains on fed govt. (if fed can control product standards, members and senators from Q can vote on bill not allowing it), (a) Not all provinces are equal in wealth, status, or actual power. Number of provisions in Constitution apply to one or some provinces. Unique terms for when each province was admitted. Not so much different to suggest applying special status. (b) Quebec has a de facto special status, only province that opted out of the Canada Pension Plan and Hospital Insurance Plan. But it does not have any special constitutional powers. (c) Meech Lake Accord - distinct society does not recognize Quebec as special status b/c term was interpretative, did not confer constitutional powers to Quebec. This lead to failure of Accord. Referendum by House, recognized Q has distinct society - no constitutional amendment, but was opposed anyway. (5) Dominion and provinces: vocabulary to describe the following -(a) Regional authorities: provinces, or states (Aus, USA) who each have their own name. (b) Central authority: BNA referred to country as dominion of Canada. Central authority was the Dominion. This name was given to self-governing countries of the British Empire, b/c not appropriate to call them colonies. Terminology changed. British Empire became British Commonwealth, then just Commonwealth. Dominion carries colonial connotation, so term became member of the Commonwealth; describing self governing countries of the Commonwealth. 1930, federal govt changed name of country from Dominion of Canada to Canada. (c) The nation as a whole: Central govt is not the same as nation as a whole. If referring to Canada can regulate something, unclear if statement refers to fed power, or regulation somewhere in the country. (d) Parliament = federal; Legislature = provincial (6) Regions (a) Canadian senate are drawn equally from regions, described as divisions. 4 divisions (Originally- Ontario, Quebec, three Maritime provinces, 1915- four Western provinces) each represented by 24 senators. i) 1949 Newfoundland not included in Maritime, but given 6 additional senators ii) 1975 Yukon and Northwest Territories given 1 senator each, outside of divisions. iii) 1999 Nunavut given one senator (b) Membership to Supreme Court also based on regions. 3 of the 9 judges from Quebec, 3 from Ontario, 2 from the four Western provinces, and 1 from the four Atlantic provinces. (c) Victoria Charter amending formula (1970, was not agreed to) would have called for agreement on regional basis. Consent of federal parliament, 1) any province that had 25% population of Canada (Ont & Que), 2) at least two of the four Atlantic provinces, 3) at least two of the four western provinces, having combined population of at least 50% of the western provinces. (d) Seven-fifty formula in s.38 Constitutional Act 1982: rejects regions, requires consent of the federal parliament, and two-thirds of the provinces (7 provinces) having combined population of 50% of the population of all provinces. i) It is some what regional, b/c 7 provinces will always include 1 Western, 1 Atlantic, 50% pop will always include either Ont or Que b/c other 8 provinces have less than 50%) ii) Avoids explicit recognition of regions. (e) Regional veto statute: passed by Federal parliament in 1996, indirect effect of incorporating regions in the sevenfifty formula. Its an ordinary statute, not a Constitutional amendment. Thus, it prevents Minister of the Crown from introducing any resolution authorizing an amendment into the House without prior consent by the Legislatures of: i) Ontario ii) Quebec iii) British Columbia iv) Two or more Atlantic provinces representing at least 50% population of Atlantic v) Two or more prairie provinces representing at least 50% of population of Prairie (f) Differences in Victoria Charter and Regional veto statute: i) Under regional veto statute, BC is a separate region, which was not under Victoria Charter

ii) Under regional veto statute, two or more Atlantic provinces that represent at least 50% of Atlantic provincial population needed, under Victoria any two Atlantic provinces would suffice. iii) By giving vetos to the four most populous provinces, regional veto statute encompasses equality of the provinces envisioned by the seven-fifty formula. Idea behind statute was to give Quebec greater influence over future amendments of the Constitution. (7) Subsidiarity: principle of socialization that prescribes that decisions affecting individuals should be made by the level of govt closest to the individuals affected. (a) BNA gave 4 original provinces authority over property, civil rights, courts, police, municipal institutions, hospitals, education b/c wanted to safeguard the provinces ways). This is consistent with subsidiary principle. i) Now they have power over contracts, torts, commercial law, consumer law, environmental law, labor law, health law, social services law. ii) Laws that impact most directly individuals are for provincial (b) Primary goal of confederation was to provide uniting provinces with collective benefits of an economic union, greater financial strength and increased capacity for defense. Gave federal authority over customs, excise, interprovincial and international trade, commerce, banking, currency, taxation, national defense. This is consistent with subsidiary principle. i) Contrary to principle, federal got power over criminal law, penitentaries, marriage, divorce ii) Matters on National dimension are by federal govt, or things that cannot be regulated at provincial level. (c) Canada v. Hudson: general welfare power in Quebec authorized municipal legislaition to pass a by law severely restricting use of pesticides in municipality. By law was not displaced by prov or fed. Held: decision should be respect, matters of governance are examined through lens of subsidiary - a proposition that law making and implementation are often best achieved at a level of govt that is not only effective, but also closest to the citizens affected and thus most responsible to their needs. b)Reasons for federalism (1) Advantages: large area, includes diverse regions, dividing powers of govt so that national govt is responsible for matters of national importance, and provincial govt responsible for local matters. More decentralized govt can be expected to be able to identify and give effect to different preferences and interests in different parts of the country. (2) Provinces, will adopt policies that are too innovative or radical to be accepted to the nation as a whole. In this way, province may serve as a social laboratory in which new kinds of legislative program can be tested. If new program does not work, nation will not be at risk. If program works, other provinces will copy, any maybe fed will too. (medicare, no fault automobile insurance, family property regimes (3) Division of govt power inherent in a federal system operates to preclude an excessive concentration of power and thus a check against tyranny. (other side: fed govt means weak govt b/c dispersal of power makes it heard to implement new public policies) c) Federalism in Canada (1) The terms of the Constitution: (a) BNA gives provinces enumerated powers to make laws, giving residue to Parliament. Parliament was given i) Section 91(2) the power to regulate trade and commerce without qualification. ii) Section 91(15) marriage and divorce iii) Section 91(26) criminal law and penitentiaries 91(28) iv) Section 91(3) power to levy, indirect and direct taxes while provinces confined v) Section 92(2) to direct taxes (b) Provinces made subordinate and not coordinate: i) Section 90 of federal govt given power to disallow (invalidate) provincial statutes ii) Section 58 given power to appoint the lieutenant governor of each provinces iii) Section 96 appoint judges iv) Section 94 power to determine appeals from provincial decisions affecting minority educational rights and power to enforce power to enforce decisions on appeal by enactment of remedial laws v) Sections 91(29) and 92(10)(c) power to unilaterally bring local works within exclusive federal legislation jdx by declaring them to be for the general advantage of Canada (2) Early federal dominance: more like colonial relationship. National govt exercised control over provinces , but now steady growth in provincial powers. Now Canada Constitutions less centralized (3) Judicial interpretation of the distribution of power : Privy Council was final court of appeal for Canada in constitutional cases, until appeals abolished in 1949. Lord Watson (member of council) and Lord Haldane believed in provincial rights, established precedents that elevated provinces to coordinate status with Dominion and gave narrow interpretation of fed powers (residuary, trade, commerce), broad interpretation to provincial power (civil)


(a) Decisions of Privy Council are consistent that Canada is a less centralized federal system. Distribution of powers in Constitution of Canada is less favorable to federal power. (4) Federal-provincial financial arrangements: Since world war II, substantial power back to provinces, and the present federal-provincial financial arrangements give provinces more financial autonomy. (5) Disallowance: federal power to disallow provincial statutes exercise by dominant federal govt in early years of confederation. Use today would provoke resentment. Has not been used since 1943, power still in constitution but not used. (a) If Fed argues inconsistent with fed law, provinces will insist court is appropriate forum to determine the issue. If argued its unwise, province will reply that it should be voted upon (6) Appointment of Lieutenant Governors: federal power to appoint is breach of federal principle. Power regularly exercised. Once appointment made, the governor is not federal agent, must act upon advice of provincial cabinet. Has power under s. 90 Constitution Act 1867 to withhold royal assent from bill enacted by legislative assembly and to reserve bill for consideration by fed govt (this power is obsolete now) (7) Appointment of judges: power under s.97 Con 1867 exercised by federal cabinet. Tradition of judicial independence is strong, provincial judges do not tend to favor federal interests. (a) Before 1949 final court of appeal was Privy Council (members appointed by UK). Since then its been Supreme Court of Canada, federal court created by federal statute, judges appointed and paid by the fed govt (8) Educational appeals: federal power under s.93 Con 1987 protect provincial incursions on minority educational rights has never been exercised. (9) Declaratory power: fed govt had power under s.92(10)(c) to bring local work within federal jdx by declaring it to be for general advantage of Canada. Used in the past for local railways. Barely used. d) Supremacy of the Constitution: main characteristic of fed constitution - distribution of govt power between coordinate central and regional authorities. Requires constitution to define powers vested in both authorities. (1) Supreme: Must be written and supreme (binding or unalterable by each of the authorities). If either could unilaterally change distribution of powers, then they would not be coordinate, supreme power lies with authority who can change constitution. (2) Rigid: must be rigid (entrenched), implied that power distributing parts of the constitution cannot be amended by ordinary legislation action: a special, and more difficult process is required for amendment. (a) Amendment: Chapter 4 Constitution Act 1867-1982: neither fed parliament nor prov legislature has power to alter unilaterally provisions of Constitution of Canada: amending procedures in part V 1982 Act must be used. Part V requires assents of 2 houses of the parliament and two-thirds of provincial legislatures., representing 50% of the population of all provinces. This makes it rigid. (b) 52 of Constitution Act 1982 expressly affirms its supremacy over all other laws of the Constitution of Canada. e) Role of the Courts (1) Development of judicial review: courts are the only body that have the power to review disputes about legislative power, and statutes violating the Constitution. (a) Marbury v. Madision (US 1803) Act wanted to give Supreme Court jdx to issue writs and mandamus against federal courts and officials. Held: power was original jdx not appellate jdx. Constitution stated only have appellate jdx.Constitution and statute conflict, constitution prevails b/c superior. Courts did have authority of settling disputes as to distribution of powers under Constitution, and power to declare acts of democratically elected legislature invalid. (b) Privy council and provincial courts had right to review validity of legislation. Used similar argument as Marbury., but rationale was more based on imperialism, than constitutionalism. If statute inconsistent with BNA, BNA prevails b/c it was an imperial statute. (c) After Supreme Court established 1875, it had same power. Since 1982, doctrine of repugnancy defined by Colonial Laws Validity Act, replaced by supremacy clause in s. 52(1) (d) Constitution Act 1982 has broadened scope of judicial review by adding Charter (limits powers of legislative bodies, limits give rise to judicial review. More laws reviewed on Charter grounds than federalism grounds) (e) Unitary state have flexible constitutions, if statute violates Constitution, courts may hold that statute is valid. (UK, if parliament passes law, will be held valid, even if amends Constitution). (2) Limitations on judicial review: (a) Function of judicial review is to enforce the distribution of powers rules (rules of federalism): courts determine if statute is within Constitution, if not, its ultra vires, for that reason, invalid. (b) Function of judicial review is to enforce the Charter restrictions and the other non-federal restrictions: courts decide if statute violates constitutional prohibition, if so, statute is ultra vires. (c) Courts also review distribution of powers grounds or Charter grounds (power to regulate property


(d) Language of Constitution is vague and broad. By passage of time, new social, economical change throws new problems that framers of text didnt see. Courts then have to apply larger discretionary judgment to its decisions. (e) Are obliged to decide cases based on the limited information presented to them in court, no power to initiate inquiries, no staff of investigators or researchers, no power to enact a law in substitution for one declared invalid. Non-elected judges make decisions of political significance. (3) Alternatives to judicial review: criticized, taking away judicial review (a) Cnstitutional amendment removing federalism disputes from dc of the courts, remitting them for resolution to direct negotiations (fed-prov conference) between govts. -i) But, this might leave minority regional and cultural interests, civil liberties, insufficiently protected from acts of powerful majorities. (b) Establishment of outside ordinary courts of a specialized tribunal for constitutional disputes, which could include non lawyers, lawyers, which could be consciously composed as to reflect different cultural and regional interests with Canada. (c) Divide the Supreme Court into specialized divisions: common law, civil law, constitutional law. Each division would ensure max expertise in its own field. Constitutional would reflect different regional and cultural interests within the country. -i) This could become activist tribunal, assuming role of giving positive direction to our con law. Should not isolate con law issues for determination by special court, when they usually arise in practice in a factual setting, which arises out of statutory interpretation, common law (Quebec), and civil law. When they are isolated and decided, decisions are too broad and abstract. f) Amending power (1) Unitary state, requires only ordinary statute enacted by the states central legislative body (flexible) (2) State with rigid constitution: amending process includes procedures designed to ensure that any amendment enjoys the support, not only of the federal legislature, but some of the regional legislatures. g) Cooperative federalism: network of relationships between executives of central and regional govts. formed through related demands of interdependence of govt policies, equalization of regional disparities, and constitutional adaptions) allows continuous redistribution of powers, resources, w/o courts or amending (1) In some fields, policies requires joint, complementary action of more than one legislative body (standards of health, education, income maintenance, public services - which are with territories. (2) All provinces raise taxes for their own policies, but poorer provinces cannot, have lower standards of services. Richer provinces help out. (redistribution of govt revenue through shared-cost programs and equalization grants). Also, Taxing resources shared between fed and provincial govts, federal intervention secured nation-wide health, education, welfare plans (3) This is dominant in federal-provincial financial arrangements. (4) First ministers conferences: of provincial premiers and Prime Minister - bring together executive power and legislative power (5) Also, several standing federal-provincial committees of ministers, and nearly every cabinet minister meets with his counterparts in other govts from time to time. Meetings of permanent govt officials from prov and fed. (6) Over 150 organizations, conferences, committees involved in intergovernmental liaison. Also countless informal contacts amongst civil servants of all govs. (7) Executive federalism: role of executive branch in working out intergovernmental relation - accomplishing social and economic objectives. II. DISTRIBUTION OF POWERS A. PRINCIPLES OF INTERPRETATION 1. Judicial review on federal grounds (ch. 15) (1) Scope: Constitution defines what types of law parliament and legislatures can enact. Law valid (intra vires) if court finds it was enacted within power allocated by Constitution. Invalid (ultra vires) if enacted outside powers enacted to body. For review, look at purpose of statute, effects, etc... (2) Federal and charter grounds: in reviewing the, 1) first question is whether law is within law making power of the enacting body and 2) whether the law is consistent with the charter. Charter does not apply to law that is ultra vires on federal grounds (invalid). (a) Sect 33 Charter allows Parliament/Leg to override provisions by including in a statute a declaration that statute is to operate notwithstanding charter provision. Statute is then valid (b) Fed and Prov divided by sec. 91 and 92. a) Characterization of laws (step 1):


(1) Matter: pith and substance of the statute. first step in judicial review is to identify matter of challenging law = true meaning. Purpose is to determine whether law is constitutional or not. Difficulty is that statutes have one feature which comes within provincial heard of power and another which comes within federal head of power - must characterize law by its most important feature: pith/substance or matter of law). (2) Singling out: Alberta Bank Taxation Reference - singling out the banks through tax. Singling out within fed jdx is not conclusive of pith and substance. If effect of provincial law would be to impair status or powers of federally incorporate company, then provincial law, although valid generally, will not apply to the federally incorporated company or federally regulated enterprise. (3) Double aspect: acknowledges that some kinds of law have both fed and prov matter and are competent to both Dominion and provinces. Applicable when contrast between relative importance of the 2 features is not so sharp. It is judicial restraint. If law is equally important to both, it can be enacted by Parli or Legis.. (a) Rules of conduct on roads have double aspect and are competent to both Parl and Legis, so is securities (coming within property and civil rights of province 92(13) and criminal law for fed 97(27) (4) Purpose: intention of statute R.v. Big M Drug Mart - if purpose of statute had not been religion but secular goal of enforcing uniform day of rest from labor, then Act would fall under prov not fed (falls under prov or fed depending on whether purpose was religion or secular. It was religious, valid exercise of fed - prohibited commercial activities on sunday. Entire statute struck down - severance (5) Effect: how the statute changes the rights and liabilities of those who are subject to it and indirect achievement of purposes. (a) Saumur v. Quebec: offense to distribute literature in streets without written permission by chief of police. Purpose of protecting pedestrian traffic or controlling litter in streets. But real effect was for him to decide content was objectionable or not. (Jehovahs witnesss), this is relation to speech and religion, not for province. (6) Efficacy: this is for Parliament not court. Re Firearms Act: Parliament judges whether measure will achieve likely purpose, efficaciousness not relevant to Court. (passed gun control legislation for public safety, argued that it is only red tape for farmers, burdening, no effect on those who use guns for criminal purposes. (a) Ward v. Canada: ban on baby seal sale, by provinces within property and civl rights. Upheld validity under federal power over fisheries b/c real measure was to protect resource. Purpose of legislation cannot be challenged by proposing alternative, better method for achieving purpose. (7) Colorability: doctrine is invoked when statute bears formal trappings of matter within jdx, but in reality is addressed to a matter outside jdx. Legislative body cannot do indirectly what it cannot do directly. (Upper Churchill: contract outside New, rights in Quebec). (a) R.v.Morgentaler: statute required designated medical procedures performed in hospital, 9, 4th was abortion. Purpose to have high quality. Stopping doctor from establishing abortion clinic, restrict access to it in Nova Scotia. STruck down statute b/c designation of other 8 procedure was smoke screen to conceal true purpose of legislation: limit abortion (8) Criteria of choice: is guided by concept of federalism - should law be enacted by fed or prov? Criteria (a) Community: whether Can or prov is primary community to which citizen should feel allegiance, subject to reasonable disagreement (between english canadians and french quebecers) (b) Efficiency: whether govt power is exercised most efficiently by fed or prov govt, are also subject to reasonable disagreement (c) Democracy: whether fed govt or prov is more responsive and accountable to people and more protective of minorities, are subject to reasonable disagreement. (judge uses all 3 to determine). (d) Where choice between two is not clear, legislation is normally preferred. (9) Presumption of constitutionality: three legal consequences - have the effect of reducing interference by unelected judges with the affairs of elected legislative branch. (no presumption of constitutionality if law challenged on Charter ground vs. federal (a) In choosing between competing characterizations of law, the court should normally choose that one that would support the validity of the law. (b) Where validity of law requires finding of fact (existence of emergency) that finding need not be proved strictly by govt. (c) Where law is open to narrow and wide interpretation, under wide, laws application should extend beyond powers of enacting legislative body, could should read down the law so as to confine it to those applications that are w/n power of enacting legislative body. (reading down applies to Charter) (10) Severance: preserve good part of statute and declare the rest bad. Rule: severance is inappropriate when remaining good part is so inextricably bound up with the part declared invalid that what remains cannot independently survive. If 2 parts


can exist independently of one another, have 2 different matters, then severance is appropriate. (there is a presumption against severance, usually strike down entire statute) (a) Severance clause: section of statute that provides, that if any part of the statute is judicially held to be unconstitutional, the remainder of the Act is to continue to be effective. (b) Common in Charter cases than federalism cases, unusual to find entire statute struck down in Charter case. (whether purpose or effect of law abridges a Charter right) (c) R.v. Big M Drug Mart - entire statute struck down. (11) Reading down: doctrine, whenever possible, a statute is to be interpreted as being within power of enacting legislative body. (construe language that goes beyond power, more narrowly to keep within scope). Available when statute has valid limited meaning and invalid extended meaning, then stipulates that limited meaning be selected. Allows bulk of policy to be accomplished while trimming off parts that are constitutionally bad. (12) Interjurisdictional immunity: applies outside mostly to federal transportation and communication. (a) Definition: a law that applies in matter outside jdx of the enacting body can be attacked in 3 ways i) Validity of the law: argue that law is invalid b/c matter comes with class of subjects that is outsisde jdx of enacting body (prov law imposing tax on bank stuck down). Depends on characterization of law. ii) Applicability of the law: argue law is valid in most of its applications, but should be interpreted to not apply to the matter outside the jdx of enacting body. If this succeeds, law is not invalid, but simply inapplicable (*magic words on exam) to extra jurisdictional matter. Technique for limiting application of law to matters within jdx is reading down doctrine iii) Operability of the law: argue law is inoperative through doctrine of paramountcy (where there are inconsistent federal and provincial laws, it is the federal law that prevails; paramountcy renders prov law inoperative to the extent of the inconsistency) Only applies to prov law when conflicting with fed. (b) Federally-incorporated companies: held that otherwise valid prov law may not impair the status or essential powers of fed incorp comp. (prov law prohibiting companies from operating in province and imposing licensing scheme, read down to exempt federally incorp companies. (c) Federally-regulated undertakings: undertakings engaged in interprovincial or international transportation or communication, which come w/n federal jdx under s. 92(10) Con Act 1867 are immune from valid provincial laws which would have effect of sterilizing the undertakings. (interprovincial phone company, international bus line, interprovincial pipeline are immune). Prov laws that sterilize (paralyse or impair) undertakings are inapplicable. i) Bell 1966 case: issue: whether prov occupational health and safety laws could apply to undertakings engaged in interprovincial transportation and communication. (1) Court abandoned sterilization and held, Company was immune from provincial min wage law for it affects vital part of management and operation of undertaking. (a) Vital part test: precluded application of prov laws that could not possibly paralyze or impair operation of fed regulated undertakings. (broader field of immunity). Decision meant that workers in fed industries were not protected by min wage laws b/c there was no fed min wage at that time. (2) Held the prov law was constitutionally incapable of applying the fed undertaking, and had to be read down s that it did not apply to the fed undertakings. ii) Irwin Toy v. Quebec: whether law that prohibited ad directed at kids apples to ads on tv (fed jdx) Held that law was applicable to ad on tv. Vital part test applied only to prov laws that purported to apply directly to fed undertakings. Where prov law had only an indirect effect on undertaking, law would be inapplicable only if law impaired a vital part of the undertaking. Indirect effect falling short of impairment, even if it affected vital part of undertaking would not render prov law constitutionally applicable. (1) prov law valid and effective b/c it was prohibition on advertisers from this category, media could still carry ads. Effect on tv was indirect, did not matter that law affected vital part of undertaking. iii) Ontario v. Canadian Pacific: Act validly applied to company. There were other ways of keeping right of way clear of combustible matter so that controlled burning was not essential to companys statutory mandate. Held that act was not aimed at management and control of an undertaking (EPA). Prov law that regulated clearance of right of way affected vital part of operation of the railway. Dismissed. iv) Canadian Western Bank v. Alberta: Erased Irwin direct-indirect. Held that interjurisdictional immunity applies if a core competence of parliament or a vital or essential part of an undertaking it duly constitutes would be impaired by a prov law. If core competence or vital part would merely be affected by prov law, no immunity applied. (In the absence of impairment, no immunity applies)


(1) Alberta Insurance Act required banks to obtain license from prov and comply with consumer protection laws when they promoted insurance. (2) Insurance Act can constitutionally apply to banks because promotion of insurance by banks was too far from the core of banking to qualify as vital part of the banking undertaking. v) British Columbia v. Lafarge Canada: whether Vancouver by law was constitutionally inapplicable to the proposed development on the property in view of parlia legislative authrotiy over navigation and shipping rules. held that regulation of land use within the core of navigation and shipping, was immune from prov or municipal laws that would impair federal regime. (d) Other federal matters: interjurisdictional immunity also applies outside of transportation and communication. Prov labor laws inapplicable to postal workers, teachers on military base. Prov driving license inapplicable to members of armed forces. Police inquiries inapplicable to RCMP. Hunting, adoption, family, inapplicable to Indians/Reserves. By law prohibiting signs inapplicable to federal election signs. Suing for wrongful death of sibling inapplicable in maritime negligence case (e) Rationale of interjurisdictional immunity: most laws held invalid were laws of general application. Laws infringing on federal matter (not violating federal law). i) Pith and substance: law in relation to prov matter may validly affect federal matter - this is applied more frequently then interjurisdictional immunty doctrine, which reads down the prov law to exclude the federal matter. (prov workers compensatoin law, prov tax on banks, labor laws to contract building- all held valid). ii) Prov laws may validly extend to fed subjects unless bares upon subject that makes them specifically fed jdx iii) Rule: if prov law would affect basic, min, unassailable core of fed subject, then interjurisdictional immunity doctrine stipulated that prov law must be restricted in its application (read down) to exclude fed subject (would impair core of fed subject). If prov law did not affect core of fed subject, then pith and substance doctrine stipulated that prov law validly be applied to fed subject. (f) Provincial subjects: doctrine of interjurisdictional immunity can be reciprocal, protecting te core of exclusive provincial heads of power from federal legislation. b)Interpretation of Constitution (Interpretation of power distribution provisions of constitution (step 2) (1) Relevance: once matter (pith and substance) of challenged law has been identified, second stage in judicial review is to assign matter to one of the classes of subjects. (2) Exclusiveness: Lists in 91 and 92 Constitution Act 1867, exclusive to Parlia or Leg to which it is assigned. Particular matter will only come within a class of subjects in one list. If one doesnt legislate to the full limit of its power, this does not mean the powers are given to the other body to do so. Can have duplication or overlapping. (a) Property and civil rights in prov 93(12) and regulation of trade and commerce 91(2) fed. Trade and commerce has been narrowed down to interprovincial or international trade and commerce. Property and civil rights interpreted as including regulation of only local trade and commerce. (3) Ancillary power: we do not have ancillary power enumerated to either parliament or legislature. (a) Papp v. Papp: upheld custody provisions of federal divorce act, did not favor language of necessarily incidental or ancillary to explain valid impact of federal law in relation to divorce. Ask whether rational, functional, connection between what is admittedly good and what is challenged. i) Rational connection test: allows each enumerated head of power to embrace laws that have some impact on matters entrusted to the other level of govt and provides flexible standard which gives enacting body considerable leeway to choose the legislative techniques it deems appropriate, while providing a judicial check on an unjustified usurpation of powers. (directly confronts the appropriate questions in interpreting a federal constitution). (b) R. v. Zelensky: used rational connection test to reject argument that criminal law power would not authorize quasi civil sanction of compensation. (c) Multiple Access v. McCutcheon: upheld provision of fed law granting civil remedy for insider trading, on basis that prov had rational, functional, connection with company law. (d) R.v.Thomas Fuller Construction: ancillary power doctrine was limited to what is truly necessary for effective exercise of parliaments legislative authority. Much stricter test than rational connection. Result was to impose an inconveniently restrictive interpretation on the federal parliaments power to establish federal courts under s. 101 Con Act 1867. (e) General motors v. City national leasing: court trying to reconcile different approaches for defining extent of legislative power to affect matters outside competence of enacting body. Court must measure degree of encroachment of


legislative scheme on other govts sphere of power, then court must determine how necessary the impugned provision is to the valid legislative scheme. i) For minor encroachments, rational connection test is appropriate. For major, a stricter test (truly necessary, or essential) is appropriate. ii) Impugned law was civil remedy in federal competition statute. Law intruded into prov powe over property and civil rights, but only in a limited way. Thus, to test validity of law, they used rational connection test. iii) Upheld validity of the civil remedy. (f) Kirkbi v. Ritvik Holdings: trade marks act (fed law valid under commerce power) provided civil remedy for infringement of unregistered trademark. Remedy a matter of property and civil rights (provinces not federal). Found intrusion into prov was minimal. Held: that uniform national remedy for protection of unregistered trade marks was useful part of scheme of regulation, remedy was sufficiently integrated into federal scheme to be valid law in relation to trade marks. (g) Nykorak, Papp, Zelensky, Multiple Access: each head of legislative power (fed or prov) authorizes all provisions that have rational connection to exercise of that head power. No need for separate ancillary power. Rational connection test to be preferred over stricter alternatives - truly necessary or essential tests b/c because it is less strict. The more liberal test respects limits imposted by Constitutions distribution of power by requiring a rational connection, but it still allows considerable leeway to legislative judgment of both fed and prov. (4) Concurrency: (a) Exclusivity is the rule, concurrent the exception. three provisions explicitly confer concurrent powers i) 92A(2) Con Act 1867 confers on the prov power to make laws in relation to export of natural resources, and 92A(3) power is concurrent with federal parliaments trade and commerce power ii) 94A confers on federal the power to make laws in relation to old age pensions and supplementary benefits iii) 95 confers on both concurrent powers over agriculture and immigration (b) Two doctrines of concurrency i) Double Aspect doctrine: a law may have a double aspect, one aspect (characteristic) coming within federal list, the other within provincial list (careless driving - fed criminal & prov highway reg) Law is competent in both levels. ii) Pith and Substance doctrine: if pith and substance of law comes within list of legislative body that enacted it, then law is objection that it incidentally regulates w/n other list. (5) Exhaustiveness: totality of legislative power distributed between fed and prov. Any matter that does not come within any specific classes of subjects will be provincial if it is merely local or private, and will be federal if it has national dimension. (a) Law that is excessively broad or vague will be incompetent to both levels of govt, must be sufficiently particular to be attributed as a matter coming within one of the classes. (b) Fed should not extend its authority into fields of prov competence by enacting laws upon subjects so diffuse and pervasive (broad) that they do not fit with any enumerated powers. (6) Progressive interpretation: doctrine by means the Con Act 1867 has been able to adapt to the challenges of Canadian society. The general language used to describe classes of subjects is not frozen in that time (phrases include telephone system, criminal law, banking) words are given progressive interpretation so they continuously adapt to new conditions and new ideas. (a) Same Sex Marriage Reference: frozen concepts reasoning - its a living tree which by way of progressive interpretation accommodates and addresses realities of modern life. (b) Re Employment Insurance Act: living tree evolution of role in labor market and role of fathers in child care (benefits, did not see this coming in 1940) would include income replacement benefits to parents who must take time off work to give birth or care for children. Benefits upheld. (c) Interpretation insists that original understanding is not binding forever. Con Act 1867 is organic statute, has to provide basis for entire govt for long period of time - yet cannot be easily amended when it becomes out of date, so adaption to changing conditions must fall into large extent upon courts. (7) Unwritten constitutional principles: judges make new law b/c unforeseen things happen when tex was drafted, new came becomes precedent. (a) Unwritten: acknowledgment that principles are not to be found in the written constitutional text and cannot be derived by normal processes of interpretation from the text. (principles: democracy, constitutionalism, rule of law, independence of judiciary, protection of civil liberties and federalism) Vague enough to accommodate virtually any grievance about govt policy


(b) When Court finds unwritten constitutional principle in Constitution, it has treated the principle as an implied term of the Constitution that is enforceable in precisely the same way as if it were an express term. (c) Manitoba Language Reference: held Court may have to regard unwritten postulates which form foundation of Constitution of Can. Applicable unwritten part was the principle of rule of law. Court invoked principle to solve crisis that would resulted from the Courts holding that all of the laws of Man enacted since 1890 were invalid b/c in English only - must be French too. By virtue of unwritten constitutional guarantee of rule of law, Man was governed temporarily by body of law that was invalid, until they were translated and re-enacted. (d) Re Remuneration of Judges: held that three provincial statutes reducing salaries of provincial court judges were unconstitutional b/c violated judicial independence. Con of Can contained unwritten constitutional principles of judicial independence. (e) Secession Reference: if province voted to secede, rest of Canada under obligation to negotiate. Obligation never mentioned in the past nor argued. (f) Babcock v. Canada: court rejected challenge that allows fed govt to withhold cabinet documents from court proceedings, invoked unwritten constitutional principle: rule of law, separation of powers, and independence of judiciary. (g) British Columbia v. Imperial Tobacco: statute made for recouping health care costs by province for tobacco related diseases. Created a new tort. Denied company access to individual health care records, all companies would divide cost by market share. Companies challenge validity of statute, relying on independence of judiciary, rule of law. Both challenges failed. (h) De Savoye v. Morguard Investments: Court invoked principle of federalism to articulate full faith and credit rule of the Constitution, which requires the courts of each province to recognize judgments issued by the courts of the other Canadian provinces. (i) Also had implied bill of rights before Charter: refrained prov and fed from restricting freedom of expression and other fundamental freedoms. 2. Canadian Western Bank v. Alberta: In 2000, Alberta enacted changes to its Insurance Act purporting to make federally chartered banks subject to the provincial licensing scheme governing the promotion of insurance products. Upon the coming into force of that Act, the appellant banks brought an application for a declaration that their promotion of certain insurance products authorized by the Bank Act was banking within the meaning of s. 91(15) of the Constitution Act, 1867 and that the Insurance Act and its associated regulations were constitutionally inapplicable to the banks promotion of insurance by virtue of the doctrine of interjurisdictional immunity or, alternatively, inoperative by virtue of the doctrine of federal paramountcy. The trial judge dismissed the application. He found that the challenged provisions of the Insurance Act were valid provincial legislation related to the provinces property and civil rights power under s. 92(13) of the Constitution Act, 1867. He also found that the doctrine of interjurisdictional immunity was inapplicable because the promotion of authorized insurance was not at the core of banking, and that the doctrine of federal paramountcy was inapplicable because there was no operational conflict between the federal and provincial legislation. The Court of Appeal upheld the decision.Held: The appeal should be dismissed. a) 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. b)Analysis: (1) Pith and substance: (a) This initial analysis consists of an inquiry into the true nature of the law in question for the purpose of identifying the matter to which it essentially relates If the pith and substance of the impugned legislation can be related to a matter that falls within the jurisdiction of the legislature that enacted it, the courts will declare it intra vires. If, however, the legislation can more properly be said to relate to a matter that is outside the jurisdiction of that legislature, it will be held to be invalid owing to this violation of the division of powers. (b) The purpose of the enacting body and the legal effect of the law ( Reference re Firearms Act, at para. 16). To assess the purpose, the courts may consider both intrinsic evidence, such as the legislations preamble or purpose clauses, and extrinsic evidence, such as Hansard or minutes of parliamentary debates (c) In the instant case, 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. (d) The powers of one level of government must be protected against intrusions, even incidental ones, by the other level, by two doctrines: interjurisdictional immunity and paramountcy


(e) 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. i) level of the intrusion on the core of the power of the other level of government which would trigger its application: To trigger the application of the immunity, it is not enough for the provincial legislation simply to affect that which makes a federal subject or object of rights specifically of federal jurisdiction. It is when the adverse impact of a law adopted by one level of government increases in severity from affecting to impairing that the core competence of the other level of government or the vital or essential part of an undertaking it duly constitutes is placed in jeopardy. (1) The banks did not demonstrate that credit-related insurance is part of the basic, minimum and unassailable content of the banking power. While banking certainly includes the securing of loans by appropriate collateral, a bank in promoting optional insurance is not engaged in an activity vital or essential to banking. (2) The bank cannot therefore be protected from operation of the Insurance Act by virtue of the doctrine of interjurisdictional immunity c) Analysis approach:All constitutional legal challenges to legislation should follow the same approach. First, the pith and substance of the provincial law and the federal law should be examined to ensure that they are both validly enacted laws and to determine the nature of the overlap, if any, between them. Second, the applicability of the provincial law to the federal undertaking or matter in question must be resolved with reference to the doctrine of interjurisdictional immunity. Third, only if both the provincial law and the federal law have been found to be valid pieces of legislation, and only if the provincial law is found to be applicable to the federal matter in question, then bo th statutes must be compared to determine whether the overlap between them constitutes a conflict sufficient to trigger the application of the doctrine of federal paramountcy. 3. Quebec Attorney General v. Canadian Owners and Pilots Association: L and G built an aerodrome, which is registered under the federal Aeronautics Act, on their land zoned as agricultural in the province of Quebec. Section 26 of the Quebec Act respecting the preservation of agricultural land and agricultural activities (ARPALAA) prohibits the use of lots in a designated agricultural region for any purpose other than agriculture, subject to prior authorization by the Commission de protection du territoire agricole du Qubec. Since L and G did not obtain the Commissions permission prior to constructing the aerodrome, the Commission ordered them to return their land to its original state pursuant to s. 14 ARPALAA. L and G challenged the Commissions decision on the ground that aeronautics is within federal jurisdiction. The Administrative Tribunal of Qubec, the Court of Qubec and the Superior Court all upheld the decision, but the Court of Appeal found that interjurisdictional immunity precluded the Commission from ordering the dismantling of the aerodrome. Held (LeBel and Deschamps JJ. dissenting): The appeal should be dismissed. a) In an era of cooperative, flexible federalism, the application of the doctrine of interjurisdictional immunity requires a significant or serious intrusion on the exercise of the federal power. The test is whether the provincial law impairs the federal exercise of the core competence. b) Issues: (1) The validity of the provincial legislation (2) The applicability of the provincial legislation under the doctrine of interjurisdictional immunity (3) The operability of the legislation under the doctrine of federal paramountcy. c) Analysis: (1) Validity of the Provincial Legislation (a) Identifying the Matter of the Impugned Legislation: there are two aspects to the characterization of a law: A pith and substance analysis looks at both (1) the purpose of the legislation as well as (2) its effect. In pith and substance, legislation about land use planning and agriculture. That is its matter. (b) Assigning the Matter to a Head of Legislative Power: the next step is to ask whether the impugned provision, thus characterized, relates to a provincial head of power. Land use planning and agriculture may fall within provincial jurisdiction under s. 92(13) (property and civil rights), s. 92(16) (matters of a merely local or private nature), or s. 95 (agriculture) of the Constitution Act, 1867. It follows that s. 26 is valid provincial law. (2) Interjurisdictional Immunity (a) Does Section 26 of the Provincial Act Trench on the Protected Core of a Federal Competence?: the local aspects of aviation come under federal jurisdiction because the subject matter of aerial navigation is non-severable. It is thus clear that the federal jurisdiction over aeronautics encompasses the power to determine the location of aerodromes. i) The next question is whether this power lies at the protected core of the federal power. T ii) The test is whether the subject comes within the essential jurisdiction the basic, minimum and unassailable content of the legislative power in question: location of aerodromes lies at the core of the federal aeronautics power


(b) Does Section 26 of the Act Unacceptably Interfere With a Federal Competency? test is whether the provincial law impairs the federal exercise of the core competence. whether the provincial law must sterilize the essential content of a federal power. Conclude that the s. 26 prohibition does impair the federal power to decide when and where aerodromes should be built. d) The effect of the doctrine of interjurisdictional immunity is to negate the potential inconsistency between federal and provincial legislation by rendering the provincial legislation inapplicable to the extent it impairs the core of a federal power e) The question is whether the provincial legislation is incompatible with the purpose of the federal legislation. That party must prove that the impugned legislation frustrates the purpose of a federal enactment. To do so, it must first establish the purpose of the relevant federal statute, and then prove that the provincial legislation is incompatible with this purpose. f) Conclude that the provincial legislation limiting non-agricultural land uses in designated agricultural regions is valid. However, I find that the provincial law impairs the protected core of the federal jurisdiction over aeronautics, and is inapplicable to the extent that it prohibits aerodromes in agricultural zones. g) Constitutional questions (1) Is the Act respecting the preservation of agricultural land and agricultural activities , R.S.Q., c. P41.1, constitutionally inapplicable under the doctrine of interjurisdictional immunity to an aerodrome operated by the respondent? Answer: Yes. (2) Is the Act respecting the preservation of agricultural land and agricultural activities , R.S.Q., c. P41.1, constitutionally inoperative under the doctrine of federal legislative paramountcy, having regard to the Aeronautics Act, R.S.C. 1985, c. A-2, and the Canadian Aviation Regulations, SOR/96-433?Answer: No. B. PARAMOUNTCY Ch. 16 1. Problem of inconsistency a) Doctrine of implied repeal applies in Canada to resolve conflicts between laws enacted by the same legislative body. Statute made later is deemed to implied repealed earlier statute to the extent of inconsistency. No help if conflict between fed and prov statute b/c cannot repeal each others laws. b) Federal paramountcy: where there are inconsistent fed and prov laws, fed law prevails. Applies when (1) Each is valid: does the matter (pith or substance) of the law come w/n classes of subjects (heads of power) allocated to enacting Parl or Legis? [if test failed, then done] (2) Inconsistent: 2. Express contradiction: two types of express inconsistency -a) Impossibility of dual compliance: when it is impossible for a person to obey both laws (one is breached) (1) M & D Farm v. Manitoba Agricultural Credit Corp: express contradiction under fed law prohibited enforcement of proceedings for 120 days, prov law had enforcement proceeding within 120 days. Plaintiff got stay of proceedings under fed law. Corp obtained prov order granting permission to foreclose. Held that this was prohibited by fed law. (2) Saskatchewan Breathalyzer: fed law no person required to give breath sample as drinking driving evidence. Prov law suspended driving license of anyone who refused to comply with request for sample. Held that prov law was denial of questionable privilege, sanction not severe enough. No contradiction between fed and prov law. (3) If one level of govt denies consent and the other grants consent, there is impossibility of dual compliance, which would cause fed decision to prevail. BC v. Lafarge Canada: fed law, needed permission to make Port Authority, held that did not need approval of City (because in Van) b/c to do so would give rise to operational conflict. It is already informally approved. b) Frustration of dual purpose: overlapping fed and prov law, it is possible to comply with both but effect of prov law would be to frustrate purpose of fed law. (find what fed purpose is, whether prov frustrates it) (1) Bank of Montreal v. Hall: fed law gives procedure for foreclosure, prov law wants creditor to serve notice on debtor before foreclosure for last opportunity to replay loan. Bank followed fed. Not impossible to follow both, would not breach fed if followed prov too - would just delay bank in getting security. Held that not obliged to follow prov law b/c inconsistent, purpose of fed law frustrated by prov (2) Law Society of BC v. Mangat: Fed law allowed party to be represented by non lawyer. Prov Society prohibits non lawyers from practicing law. Party can comply with both by hiring lawyer but purpose of fed law was to establish informal, accessible speedy process. Purpose required parties to retain counsel who spoke language, understood culture, inexpensive. Purpose would be defeated if only lawyers permitted to appear before Immigration board. There was a conflict, so prov law inoperative. (3) Rothamans, Benson &Hedges v. Saskatchewan: fed tobacco act prohibted promotion of products, except as authorized by Act, also allows person to display product. Prov control act banned display of products in any premises where


people under 18 permitted. Held that fed permission to display was not to create positive entitlement to display. Retailed could comply w/ both by not allowing under 18 or by not displaying. Purpose of Act (address general health problems) and permission to display (circumscribe the acts general prohibition on promotion) were fulfilled. (a) By narrowing federal limit on prohibition of commercial speech, prov law arguably frustrated purpose, which was to comply with Charter s. 1 reasonable limits (display was an effort to impose reasonable limit on prohibition of commercial speech b/c Act wanted to regulate it by restricting Charter-protected commercial expression. (impractical to exclude persons under 18 from stores) 3. Negative implication a) Covering the field: aka negative implication test of inconsistency - test not used by Courts. (1) Test: fed law may be interpreted as covering the field and precluding any prov laws in that field, even if they are not contradictory of the federal law. (Fed law may be read as including express provisions, and negative implications that those express provisions should not be supplemented or duplicated by any prov law on the same subject). (2) Prov law that adds to or duplicates fed law is not deemed to be inconsistent with fed. Instead of negative implication, courts just allow both laws to exist because they are not inconsistent. (3) OGrady, Stephens, Smith, Mann: Case laws have found that both laws can be followed, b/c no inconsistency (most dissents found that prov contradicted fed. None addressed inconsistency by negative implication) (4) Courts will find inconsistency if prov law frustrates purpose (not if fed law intended to cover entire field) Look at compatibility of both, whether they can live with one another. (5) Canadian Western Bank v. Alberta: prov law requiring license for promotion of insurance in prov was not inoperative to banks by fed bank act, which authorized banks to promote 8 specific kinds of credit related insurance. b) Express extension of paramountcy: can we render prov laws inoperative upon the same matters as Indian Act, even if provisions do not contradict, because fed law wants to cover entire area? Probably, yes. 4. Overlap and duplication a) Constitutional significance: Duplicate laws show harmony. Duplication is not a test of inconsistency. Multiple Access v. McCutcheon: Prov laws will be held not inoperative to fed laws, overruled others. No need to find small differences, like OGrady, Stephens, Smith, Mann. Whether law is inconsistent or not depends on whether they are compatible in operation. b) Double criminal liability: existence of overlapping or duplications raises possibility that person may be liable to conviction under both fed and prov law for same conduct. Paramountcy doctrine does not preclude this. But s. 11(h) Charter double jeapardy is applied, its applied as if Canada is a unitary state. All relevant decisions are taken by same provincial officials, judges, whether offenses are prov or fed because prov court tries both types of offenses, and prov cops/prosectors enforce both. c) Double civil liability: Also not resolved by paramountcy. Privy council upheld double income taxation saying fed and prov taxes may co exist and be enforced without clashing. Court upheld duplicative civil remedies for insider trading, and pointed that no court would award double damages to plaintiff who had already been fully compensated. 5. Effect of inconsistency: once determined that fed law inconsistent with prov law, prov law must yield to fed law, it is rendered inoperative to extent of the inconsistency (*magic words to use on exam). Paramountcy will not apply to portions that are consistent with fed law unless inconsistent parts are inseparably linked with consistent parts. a) Temporal limitation: doctrine will affect operation of prov law only so long as the inconsistnet fed law is in force. If fed law is repealed, prov law will automatically revive without reenactment by prov legislature. b) Inoperative prov law does not mean its been repealed. Fed law cannot repeal prov law, and repealed law (prov) does not revive on the repeal of the repealing law (fed). c) It also does not mean that prov law is ultra vires, invalid, or unconstitutional - this will confuse validity with consistency. d) Distinguished from interjurisdictional immnity: Also does not mean that prov law inapplicable, b/c this will confuse with interjurisdictional immunity (limitation on power of prov leg to enact laws that extent into its core areas of exclusive fed jdx) Quebec Minimum Wage Case: held that min wage law could not constitutionally apply to Bell company, not because there was inconsistent fed law (there was none), but b/c prov law cannot affect vital part of an undertaking w/n fed jdx (phone company). Law is thus inapplicable, not inoperative, b/c law is yielding to an implied prohibition in Constitution which makee application of law ultra vires. 6. Rothams, Benson & Hedges v. Saskatchewan: he 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. Held: The appeal should be allowed. The provincial legislation is not inoperative by virtue of the paramountcy doctrine.


a) Issue: whether Saskatchewan legislation, and in particular s. 6 of The Tobacco Control Act, S.S. 2001, c. T-14.1, is sufficiently inconsistent with s. 30 of the federal Tobacco Act, S.C. 1997, c. 13, so as to be rendered inoperative pursuant to the doctrine of federal legislative paramountcy. b) Argument: declaration that s. 6 of The Tobacco Control Act is inoperative in light of s. 30 of the Tobacco Act, and a declaration that ss. 6 and 7 of The Tobacco Control Act are of no force and effect in light of s. 2(b) of the Canadian Charter of Rights and Freedoms. c) Rule: that where there is an inconsistency between 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. d) Reasoning: Parliament did not grant, retailers a positive entitlement to display tobacco products. First, Tobacco Act is directed at a public health evil and contains prohibitions accompanied by penal sanctions. Second, granting retailers a freestanding right to display tobacco products would not assist Parliament in providing a legislative response to a national public health problem of substantial and pressing concern (1) There is no inconsistency between s. 6 of The Tobacco Control Act and s. 30 of the Tobacco Act. First, a retailer can easily comply with both provisions 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. The provincial legislation simply prohibits what Parliament has opted not to prohibit in its own legislation and regulations. (2) Second, s. 6 does not frustrate the legislative purpose underlying s. 30. 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. In demarcating through s. 30 the scope of the federal legislations general prohibition on the promotion of tobacco products, Parliament did not grant retailers a positive entitlement to display such products. e) Holding: The appeal should be allowed. The provincial legislation is not inoperative by virtue of the paramountcy doctrine

C. PROPERTY AND CIVIL RIGHTS- Ch. 21 1. Importance of property and civil rights: s 92(13) of Con Act 1867 confers upon prov legislatures power to make laws in relation to property and civil rights in province. 2. History of property and civil rights: list of federal heads in s. 91, which would have become part of property and civil rights but were separated: trade and commerce, banking, bills of exchange, promissory notes, interest, bankruptcy and insolvency, patents, copyrights, marriage and divorce. These were withdrawn by their exclusive vesting in the fed parliament. Legal relationships covered here, law relating to property, succession, family, contracts, torts, under 92(13). Labor relations (once private matter) now is public law branch and business activity no longer governed by contract but by statute - all have allocated as property and civil rights in the province. Public law swept into property and civil rights. 3. Civil liberties: not the same as civil rights in Con Act 1867, that refers to proprietary, contractual and tortious rights, which exist when legal rules stipulate one person is entitled to something from another. Civil liberties exist when there is an absence of legal rules: whatever is not forbidden is a civil liberty. (to have a right to criticize govt implies that no law prohibits criticism). Civil rights in 92(13) does not include fundamental civil liberties of belief and expression. Law whose pith and substance is restraint of belief or expression does not come with property or civil rights in province. 4. Local or private matters: prov residual power in 92(16) over all matters local or private in nature in the prov has turned out to be unimportant b/c wide scope of property and civil rights in prov has left little for residue. 92(16) suggested as an alternative to 92(13) rather than independent source of power. Held to sole source of power to sustain Heroin Treatment Act, and has been along side 92(13) for trade, film censorship, gaming by video lottery, banning assemblies in streets/parks. 5. Insurance a) Reasons for regulation: insurance not mentioned in Con At 1867, unlike banking. Terms and conditions not understood by insured, govt sought to protect them by requiring inclusion of certain conditions in every policy - supervise performance of industry by licensing insures, security deposit by limiting insurers powes of investment. and official inspection of their books. b) Provincial power: both levels of govt regulate but prov statute came to courts first. Citizens Insurance Co v. Parsons: Privy council upheld Ontario statute, requiring certain conditions be included every policy of fire insurance entered into in Ontario; terms of K came within property and civil rights of prov. (1) Insurance reference: statute (Insurance Act requiring license issued by Minister of Finance before doing business) held unconstitutional b/c came within property and civil rights of prov.


(2) Fed govt then relied on criminal code, offense to carry business w/o license. Struck down. Then required British subjects and alients to obtain license with special tax imposed on persons taking out insurance with unlicensed British and foreign insures - relied on immigration, aliens, taxation power. Struck down for interfering. (3) Privy council also struck down scheme of unemployment insurance Unemployment Insurance Reference, on basis that scheme related to insurance, both matters w/n prov property and civil rights. Decision over come by amendment to Constitution. c) Federal power: fed govt continues to regulate substantial part of industry: British and foreign companies, federally incorporated companies, and voluntarily provincially incorporated companies. Rely on trade and commerce, aliens and insolvency powers. (1) Wentworth Insurance Case: issue was whether company should wind up according to fed or prov law b/c both set different admins and orders. Court held that fed law was valid in relation to insolvency and was applicable. (fed attempts were struck down but now have a way through insolvency door). 6. Business in general: Exception to proposition that regulation of business is within prov property and civil rights. Some industries fall with fed b/c enumerated under s. 91 - navigation and shipping, banking; or because are excepted from 92(10) - interprovincial or international transportation and communication, works declared to be for general advantage of Canada. Some within fed jdx because fall under peace, order, and good govt power - aeronautics and production of atomic energy. Limited fed power to regulate business - trade and commerce, taxation, interest, criminal law, peace order and good govt. The follow are areas of controversy/gaps: a) Trade and commerce authorize fed prohibition on importation of margarine, but not on its manufacture or sale; regulation of interprovincial marketing but not local marketing; regulation of competition but not regulation of wages and prices=, product standards or insurance industry. b) Taxation power used to provide incentives or disincentives with a view to the control of business activity, but may not be used as a device to assume regulatory control over insurance industry. c) Interest power used to control interest rates, but not to control other terms of loans. d) Criminal law power used to prohibit undesirable commercial practices, but not if law departs from conventional criminal format. Also used to enforce closing hours on businesses for religion reasons, but not for secular reasons. e) Peace, order and good govt power authorizes control of rents, prices, and profits in times of emergency, but not in normal times. f) Gaps in fed power are covered by prov power over property and civil rights. Regulation of industry (or regulation of prices or profits, or combo) traditionally been regarded by courts in terms of its immediate impact on freedom of contract and property rights. Restraints on business fall w/n property and civil rights category of prov. 7. Professions and trades: are restrictions of entry, coupled with rules of conduct (fee-setting and admin of governing body) comes within property and civil rights in prov. a) Krieger v. Law Society of Alberta: issue - whether law society had power to discipline a prov crown prosecutor who had failed to make timely disclosure to the defense of exculpatory evidence in his possession. Court held that law society (empowered by prov law to regulate legal profession in prov) had jdx. Although to make disclosure was criminal procedure rule (fed), default could also be breach of professional responsibility. Prosecutors (fed or prov) who practice in prov were all members of law society. Like other lawyers in prov, they all came within jdx of law society to enforce professional stds of behavior 8. Labor relations a) Provincial power: regulation of labor relations is within provincial competence. Toronto Electric Commissioners v. Snider: fed attempt to regulate labor through Act that afforded compulsory procedures for settlement of industrial disputes in mining, transportation, communication, and public service utilities. Privy held unconstitutional, power was under prov property and civil rights not trade commerce, peace order good govt or criminal law powers. (Act concerned with strikes and lockouts) (1) Act was amended to confine operations of industries w/n federal legislative authority, Act was then upheld, also applicable to any disputes in prov, provinces accepted this except PEI, after WWII labor law became prov again after US passed some new labor laws. This is the present situation. (2) Labor Conventions: decision extended to labor standards legislation. Fed statute providing for weekly rest in employment, limitations on working hours and min wages, all held unconstitutional, rejected peace, order and good govt power and treaty power. Held laws came within property and civil rights in prov. (3) Unemployment Insurance Reference: scheme of unemployment insurance involving compulsory contributions held competent to fed govt. (4) Oil Chemical Workers case: Court held province could validly prohibit the use for political contributions of trade unions funds obtained by compulsory deduction from wages.


(a) This and Unemployment Insurance case both insist that the modification of the employment relationship is exclusively within property and civil rights, not withstanding the important federal aspects presented by the relief of nation-wide unemployment and by the funding of federal election campaigns. b) Federal power: after the decision in Toronto Electric Commissioners v. Snider fed govt amended its labor legislation to apply only to employment upon or in connection with any work, undertaking or business that is within the legislative authority of parliament of Canada. Act listed number of industries which were w/n fed authority - navigation and shipping, interprovincial transportation and communication. (1) Stevedores Reference: fed parliament regulating labor relations in those industries was challenged here.Two unions were representing group of stevedores in TO, one certified under prov law the other under fed law. Fed law applied to businesses carried on for or in connection with navigation or shipping. Court held fed law was valid, applicable b/c work of loading and unloading ships was an essential part of navigation and shipping. (a) Legislation upheld in above case only covered federal private sector. Fed govt also has jdx to regulate labor relations in fed public sector (employment in depts and agencies of the fed govt). (b) Decision above followed in determining whether or not a bargaining unit of employees is integral part of undertaking that is within fed jdx. Required connection with federal undertaking is functional or operational one. (c) Provincial competence is the rule, and federal competence is the exception. Federal competence exists where work performed by the employee is an integral part of an undertaking w/n fed jdx and that finding depends on legislative authority over the operation, not over the person of the employer. (d) Issues over constitutional jdx over labor relations arise before labor board, when asked to certify a union as the bargaining agent of a group of employees. If certification is opposed on constitutional grounds, labor board must decide issue of constitutional jdx (do employees form an integral part of a fed undertaking). Court - when admin tribunal decides constitutional issue, it is subject to review by a superior court on the standard of correctness, not reasonableness. (2) Commission du Salaire Minimum v. Bell Telephone Co: Question answered - *was where there is fed jdx over labor relations, is the fed jdx exclusive or is it concurrent with prov legislatures . Issue whether Quebecs min wage law applied to Bell, which was w/n fed jx as interprovincial communications undertaking. (at that time there was no fed min wage law, there is now). Court held prov law was inapplicable to Bell. Rates of pay of work were vital parts of interprovincial undertaking, such vital parts were subject to exclusive legislative control of the fed parliament. Although prov law valid in most employment, it could not constitutionally apply to employment in federally-regulated industry. (a) Criticized of why it was not applied when fed standards were lower than prov. (3) Bell Canada v. Quebec: Court rejected criticism and followed earlier decision. Issue was whether prov occupational health and safety law was applicable to interprovincial phone company. Prov law allowed workers who used video monitors right to be assigned to other duties while pregnant. Court held prov law was inapplicable, by interfering with labor relations of company, la would affect a vital part of management and operation of federal undertaking. Court reaffirmed its position that labor relations in federally-regulated industries is the exclusive preserve of federal law.* (4) Emergency rule: Fed jdx over labor laws will extend outside fed sectors of economy in times of national emergency. Through emergencies, prov power is concurrent, and prov laws will operate unless and to the extent that inconsistent fed laws have been enacted. (a) Anti-inflation Reference: Court held that period of double-digit inflation counted as emergency, on this basis upheld temporary fed wage controls which transformed labor relations outside and inside federal sectors of the economy. 9. Marketing a) Reasons for regulations: Uniform standards of quality, enforced by inspection and labeling, were needed to eliminate dangerous or unhealthy goods and deceptive marketing practices. b) Federal power: attempts to enact marketing schemes under trade and commerce power were struck down by Privy Council b/c interference with property and civil rights of prov. Since abolition of Council, courts have interpreted trade and commerce more liberally. Fed regulation of trade in grain and oil upheld, even though regulation extended to purely local transactions. Reasoning was, marketing of products which flow across interprovincial boundaries from the province of production or importation to the province of consumption or export could be regulated by fed and that some local transactions could also be regulated where that was an incident of the regulation of the interprovincial trade. Decisions represent a departure from Privy Council precedents, and a significant expansion of fed power.


c) Provincial power: Provinces have power to regulate intraprovincial trade, but lack power to regulate interprovincial trade. Prov marketing will affect producers/consumers in other provinces. Question is to what extent should a province be permitted to burden interprovincial trade in the course of regulating intraprovincial trade. (1) Shannon v. Lower Mainland Dairy Products Board: Privy upheld prov scheme for compulsory marketing of milk through prov boards. Applied to all milk sold in prov, including milk produced in other provinces. Application to milk produced out of the prov was upheld as an incident of an essentially intraprovincial scheme. (2) Home Oil Distributors v. A-G.B.C.: Court upheld prov regulation of prices of all gasoline and fuel oil sold in prov. (3) Carnation Co v. Quebec Agricultural Marketing Board: Court upheld prov marking plan for sale of raw milk by farmers to the Carnation Company which processed the milk. Under the plan, company had to pay higher prices for its milk than would have been payable in a free market, indeed higher price than other processors purchasing from farmers in the same area. Company shipped bulk from out of province (export). Court held marketing law was in relation to intraprovincial trade, and mere affected interprovincial trade. (4) Manitoba Egg Reference: Court struck down prov scheme to regulate marketing of eggs. Applied to eggs sold there, even if produced else where. Held that plan only affects interprovincial trade in eggs, but that it aims at the regulation of such trade. Plan was unconstitutional in its entirety. (marketing plans can be used as vehicle to discriminate against out of province product??) (5) Marketing plan agreement between provinces: Case followed by fed prov agreement involving all 11 gots whcih settled a national marketing plans for eggs. Plan allocated production quotas to each prov and stipulated higher prices for eggs sold outside prov of production. Plan administered by national marketing board and 10 prov marketing boards. Set up under fed marking statute and 10 prov marketing statutes, each board granted powers by inter-delegations from both levels of govt. (filled in gaps of legislative power) (6) In both cases below, educing supply of product, price could be maintained at a level above its free market level. and in Agricultural, price fixing was central feature. To distinguish differences, look at destination of product. In A, 90% of eggs produced in canada were consumed within province of production. In C, virtually all potash produced in prov were exported. Purpose of controls was not to reduce export rate (that was the effect), but was to protect the local mining industry (prorating control there without regard to destination of potash). Provinces like S are primary producers that have less control over their natural resources than those provinces, that like Ontario, have more integrated economies. (a) Re Agricultural Products Marketing Act: Court upheld elements of the plan. Both fed marketing statute and Ontario statute were upheld, on basis that fed regulated interprovincial elements of plan and provincial statute regulated intraprovincial elements of plan. Held that provincial statute could impose production quotas on all producers. (b) Central Bank Potash v. Govt of Saskatchewan: struck down prov scheme for potash produced in the prov scheme imposed production quotas on producers of potash in the prov. Held that production controls were ordinarily matters within prov authority, situation may be different where prov establishes a marketing scheme with price fixing as its central feature. (7) Spooner Oils v. Turner Valley Gas Conservation: Court upheld legislation enacted by Alberta to limit production of natural gas in Turner Valley gas field. Purpose of control was to prevent producers from extracting large quantities of gas, then separating naphtha from the gas and then burning the gas. Wasteful practice, strong market for naphtha. Rejected argument that prov was regulating trade and commerce in province. (8) Con Act 1982 s.50 added new provision to s.92A Con Act 1867, enlarging prov powers over natural resources (development, conservation, and management) Applies only to non-renewable natural resources and forestry resources. No application to eggs, and other agricultural products, potash, or other minerals. (a) Second provision - can make laws about export from prov to other parts, of primary production from non renewable natural resources and forestry resources in prov and production from facilities in the prov for the generation of electrical energy, but may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada. (b) Provisions are enlargement of pre-1982 provincial power. New power doesnt extent to agricultural powers, its only for export of resources to other parts of Canada. (Potash case was exporting to US). 10. Securities regulation a) Provincial power: prov have power to regulate trade in corporate securities b/c matter within property and civil rights. Exception to generality of prov power over securities industry: prov has no power to confer upon a prov agency discretionary power over the issue of securities by a federally-incorporated company, b/c capacity to raise capital is an essential attribute of corporate status.(doe not apply to all, companies can be required to issue securities only through provincially licensed brokers). Except for limited immunity of federally-incorporated companies, prov power has been given broad scope by the courts. In cases


where prov legislation applied to operations which are interprovincial, court may have been influenced by absence of federal securities legislation. (1) Held valid: furnishing false information, power to seize documents for securities commission in another prov, freezing deposit accounts pending an investigation - applicable to bank, Acts applicable to brokers whose customers are out of prov, Broker outside of prov but selling stock back in. b) Federal power: fed incorporation power authorizes regulation of issue of securities by federally incorporated companies, and some degree of regulation of trading in those securities. Criminal law power authorizes the punishment of fraudulent or deceptive practices in securities industry. Trade and commerce power would authorize regulation of interprovincial dealings in securities. 11. Property a) General: creation of property rights, their transfer and their general characteristics are w/n provs property and civil rights. Laws of real and personal property, landlord tenant, trusts and wills, succession on intestacy, conveyancing, land use planning, all within provincial power. Problems arise when prov controls ownership or use of property to accomplish a non-proprietary objective in which it could not accomplish by more direct means. (1) Switzman v. Elbling: prov law that prohibited use of house to propagate communism or bolshevism was characterized as either criminal law or law in relation to speech, not as property law. (2) Bedard v. Dawson: prov law prohibited use of house as disorderly house, was characterized as property law, not as mere supplement to criminal code offenses in respect of disorderly conduct. (3) Johnson v. A.-G. Alta: prov law which denied property rights in slot machines and provided for the confiscation of slot machines was a property law or a criminal law. b) Foreign ownership: question of whether prov can control foreign ownership of land. (1) Morgan v. A.G. PEI: Court upheld statute of PEI stating that no person who is not a resident of the prov could acquire holdings of real property of more than specified size except with permission of the prov cabinet. (residency requirement, applied to non resident citizens and non resident aliens) Prov law which imposed property owning restraints on aliens could still be sustained as a valid property law. (2) Canada Investment Act: fed parliament asserted jdx over foreign ownership of property. Act provides for screening procedures for certain takeovers of Canadian businesses by nonCanadians. (fed govt can through legislation impose restrictions on aliens seeking to do business in Canada) Trade and commerce power also supports this, and federal authority over import and export of goods. *Act still valid, no challenges at time of book. c) Heritage property: Kitkatla Band v. BC Court upheld BC Heritage Conservation Act, purpose of which was to protect objects, artifacts, and sites w/n province which had heritage value. Act included discretion to minister to license destruction of such property. Challenge through ministerial decision to destruct some culturally modified trees that had heritage value to Aboriginal people. Court held protection of heritage of cultural property was w/n prov jdx under property and civil rights, and upheld ministerial power in case. 12. Debt Adjustment: Contract law w/n prov power under prop and civil rights. Power extends to annual reformation of harsh or unconscionable contracts. But power to modify creditors rights is in Con Act 1867. (Extraterritorial limitation imposed by words in province in s. 92(13). Another is allocation of interest s. 91(19), and bankruptcy and insolvency s. 91(21) to the fed govt which withdraws subjects from prov power. Still prov regulate debtor-creditor relation, with purpose of protecting local debts from enforcement efforts of out of province creditors. 13. Consumer Protection: much consumer protection law is open to prov under power over property and civil rights in the prov. (prov restrictions on advertising directed at children, described as in relation to consumer protection, upheld under s. 92(13)). Federal law can be described accurately in relation to consumer protection too. Phrase too broad and vague to serve as matter for purpose of fed distribution of powers. Must be broken down into small concepts (like pollution, health, inflation) before it can be placed in its correct constitutional slots. 14. Extraterritorial competence: s. 92(13) is power over prop and civil rights in the prov - this makes it clear that there is a territorial limitation on power. 15. Reference re Securities Act: a) Issue: whether the proposed Securities Act set out in Order in Council P.C. 2010-667 falls within the legislative authority of the Parliament of Canada. b) Facts: Purpose is to create a single Canadian securities regulator. More broadly, s. 9 states that the purposes of the Act are to provide investor protection, to foster fair, efficient and competitive capital markets and to contribute to the integrity and stability of Canadas financial system. The Act includes registration requirements for securities dealers, prospectus filing requirements, disclosure requirements. The Act does not unilaterally impose a unified system, but permits provinces and territories to opt in, with the hope of creating an effective unified national securities regulation system.


c) Arguments: Canada, joined by Ontario and several interveners, argues that the Act, viewed in its entirety, falls within the general branch of Parliaments power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867. Securities market has evolved from a provincial matter to a national matter affecting the country as a whole and that, as a consequence, the federal general trade and commerce power gives Parliament legislative authority over all aspects of securities regulation. (1) Alberta, Quebec, Manitoba, New Brunswick and other interveners argue that the scheme falls under the provincial power over property and civil rights under s. 92(13) of the Constitution Act, 1867 and trenches on provincial legislative jurisdiction over matters of a merely local or private nature (s. 92(16)), namely the regulation of contracts, property and professions. d) Rule: It is well established that the provinces have the power, as a matter of property and civil rights, to regulate the trade in corporate securities in the province, provided the statute does not single out federal companies for special treatment or discriminate against them in any way. (1) Provided the law is part of a general regulatory scheme aimed at trade and commerce under oversight of a regulatory agency, it will fall under the general federal trade and commerce power if the matter regulated is genuinely national in importance and scope. e) Analysis & more rules: 1) the pith and substance analysis requires the courts to look at the purpose and effects of the law. 2) The inquiry then turns to whether the legislation falls under the head of power said to support it. If the pith and substance of the legislation is classified as falling under a head of power assigned to the adopting level of government, the legislation is valid. When a matter possesses both federal and provincial aspects, the double aspect doctrine may allow for the concurrent application of both federal and provincial legislation. (1) Parliaments power over the regulation of trade and commerce under s. 91(2) of the Constitution Act, 1867 has two branches the power over interprovincial commerce and the general trade and commerce power. Only the general trade and commerce power is invoked by Canada in this reference. (2) To fall under the general branch of s. 91(2), legislation must engage the national interest in a manner that is qualitatively different from provincial concerns. (a) General Motors test: Whether a law is validly adopted under the general trade and commerce power may be ascertained by asking (1) whether the law is part of a general regulatory scheme; (2) whether the scheme is under the oversight of a regulatory agency; (3) whether the legislation is concerned with trade as a whole rather than with a particular industry; (4) whether it is of such a nature that provinces, acting alone or in concert, would be constitutionally incapable of enacting it; and (5) whether the legislative scheme is such that the failure to include one or more provinces or localities in the scheme would jeopardize its successful operation in other parts of the country. - use this to find if w/n general trade & commerce p. (3) Act cannot be classified as falling within the general trade and commerce power. Its main thrust does not address a matter of genuine national importance and scope going to trade as a whole in a way that is distinct and different from provincial concerns. (4) Viewed as a whole, however, the Act is not chiefly aimed at genuine federal concerns. It is principally directed at the day-to-day regulation of all aspects of securities and, in this respect, it would not founder if a particular province failed to participate in the federal scheme. (5) These matters remain essentially provincial concerns falling within property and civil rights in the provinces and are not related to trade as a whole.Proposed Act overreaches genuine national concerns. (6) Act is to regulate, on an exclusive basis, all aspects of securities trading in Canada, including the trades and occupations related to securities in each of the provinces. The purpose of the Act is to implement a comprehensive Canadian regime to regulate securities with a view to protect investors, to promote fair, efficient and competitive capital markets and to ensure the integrity and stability of the financial system. Its effects would be to duplicate and displace the existing provincial and territorial securities regimes. f) Held: The Securities Act as presently drafted is not valid under the general branch of the federal power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867. 16. Citizens Insurance Co v. Parsons a) Background: 2 actions brought by same Plaintiff. Policy has 21 conditions. Provincial powers set in 91 and 92 BNA 1867. S. 91 Provinces have legislative rights over subjects of classes local or private (16 classes of subjects). S 91 gives Parliament authority to make laws for good govt in all matters not coming within classes of subjects assigned exclusively to provinces. Some subjects of 91 and 92 are the same, causing conflict. Some were not intended by Parliament to be overriden, but given to Provinces only marriage and divorce, taxation. Leg power may reside within general description of subjects in provincial legislature


b) Arguments: Respondents - act falls under s. 92 property and civil rights of province. Deals with insurance policies for properties in province against fire. Contracts and rights arising out of them fall under subject. Appellants - civil rights only mean rights flowed from the law (narrow interpretation). c) Issues/Reasoning (1) Whether Act falls within classes of subjects in s.92 Provinces: must be prima facie: s. 91 has no class including contracts and rights arising out of them. No reason to give narrow interpretation to civil rights. (2) Assuming Act relates to property and civil rights, do its provision come w/n any classes of s. 91: Appellants argue trade and commerce falls under this.But trade and commerce is broad and wide range: political arrangements, regulation of interprovincial trade, and general regulation affecting whole Dominion. Authority to legislate for regulation of trade and commerce does not give rise to regulating contracts of businesses or trades (fire insurance) in a single province. Legislative authority d) Citizens Company: respondent bought insurance, didnt inform C that he also had insurance through Western Assurance Company, no assent. House burned down. Respondent breached contract. (1) Issue: whether effect of non-compliance is to make the contract subject to statutory conditions, or to reduce it to a bare contract of insurance without any conditions. (2) Rule: whatever may be the conditions sought to be imposed by insurance companies, no such conditions should avail against the statutory conditions, the latter should alone be deemed to part of the policy, and restored to be insurers, notwithstanding any conditions of their own unless latter are indicated as variations in the prescribed manner. (3) Reasoning/Analysis: sect 1 of the Act deems that all conditions in Act against insurers, part of every policy. Sect 2 provides penalties - conditions written in policy are not binding to insurer by virtue of actual K or as variation from statutory conditions b/c they are not indicated to be so in the manner prescribed by the statute. Penalty for not observing manner that policy becomes subject to statutory conditions. (a) Company here wrote out its own conditions but failed to print statutory conditions. (4) Holding: because policy was subject to statutory conditions and breached those conditions, Plaintiffs claim fails against Company. Judgments from appeals reversed, nonsuit. e) The Queen Insurance Company: Principal place of business in England, carries business in Canada. Respondent bought insurance for general stock of hardware and other goods. Paid $40 premium, insurance for $2000. Fire happened same day before policy delivered to Respondent - Interim receipt given saying in conditions that if accepted, policy made w/n 30 days. Condition stating not liable for fire if carrying gun powder more than 10 pounds - this amount is less than statutory amount, and jury found it was less than 25 pounds. (1) Issue: companys own conditions or statutory conditions form the contract. Depends on whether interim note is a policy of insurance w/n meaning of the Act. (2) Rule: slip is not a policy, not valid, not enforceable at law or in equity, but can be given as evidence (3) Reasoning/analysis: interim receipt was contract for policy, depending on being accepted, then delivering the real policy. Its preliminary only. Not a policy for insurance within the Act. (a) Conditions of contract: if contract had become executed, company would perform it by issuing a policy subject to its own conditions, provided care to print out statutory conditions and shew variations from and additions to them. Presume that Company would perform contract, own conditions put in interim contract to extent of which they may lawfully be made part of the policy when issued by following directions of statute (4) Holding: reverse (in plaintiffs favor). Remitted back to court of Queens Bench to answer question whether companys gunpowder quantity in building of insured was just and reasonable. Trial on this question. D. TRADE AND COMMERCE - Ch.20 1. Relationship to property rights: sec 91(2) Con Act 1867 gives fed parliament power to make laws in relation to regulation of trade and commerce with foreign, several states, Indian tribes. Narrow scope because of judicial interpretation, and accommodation with property and civil rights of provinces under s. 92(13). Powers seem to over lap. a) Citizens Insurance Co v. Parsons: issue was validity of prov statute which stipulated certain conditions included in all fire policies entered into province. Privy council held statute valid in relation to property and civil rights in prov, did not come within federal trade and commerce power b/c power should be read as not including power to regulate by legislation contracts of business/trade. b) After case, Generally accepted rule: interprovincial trade and commerce is within prov power under property and civil rights. Federal trade and commerce is confined to interprovincial or international trade and commerce, and general trade and commerce. 2. Interprovincial or international trade ad commerce:


a) In the Privy Council: trade and commerce power used in conjunction with peace, order and good trade. Expanded by Privy and Supreme Court. Parsons did not define when trade and commerce became interprovincial so as to come within fed power. (1) Insurance Reference: fed insurance act 1910 established licensing scheme for insurance companies, other than prov companies whose business only in prov. Aim was to impose fed regulation on industry which spread across country without regard for prov boundaries. Privy Council held: rejected, scope of industry or companies irrelevant. Authority to legislate regulation does not extent to regulation by licensing system of trade where Canadians free to engage in this in provinces. (2) Board of Commerce: (anti combines provisions regulating hoarding and excessive prices of necessities of life food clothing, fuel). Held: Trade and commerce power had no independent content and could be invoked only as ancillary to other fed powers. Dismissed trade and commerce, Canadians free to engage in the provinces. (3) P.A.T.A. case: repudiated ancillary theory of trade and commerce - words of 91(2) must receive their proper construction where they stand as giving an independent authority to Parliament over the particular subject-matter (4) The King v. Eastern Terminal Elevator Co: Supreme Court struck down statute regulating grain trade. Very little of Canadas grain is consumed in prov of production and great bulk is exported. Held that regulation of local works (elevators) made entire statute invalid. (5) Natural Products Marketing Reference: statute held invalid which provided for establishing of marketing schemes for those natural products whose principal market was outside province of production or for export. Held, entire statute invalid b/c included transactions that could be completed within province. That was matter of property and civil rights in province. (6) Margarine Reference: last privy consideration. Held federal prohibition of manufacture, sale, possession of margarin was invalid b/c proscribed only interprovincial transactions but also transactions that could be completed in province. b) In the Supreme Court: Through Ontario Farm Products Marketing Reference: (prov marketing statute) judges indicated fed power would extend to some transactions completed within province. (1) Murphy v. C.P.R: Supreme Court upheld validity of Canada Wheat Board Act, for interprovincial markets, made purchase by Board of all grain outside province of production and for marketing compulsory. (2) R. v. Klassen: Manitoba Appeal issue whether Canada Wheat Board Act could validly apply to purely local work. Act imposed quota system designed to ensure equal access to interprovincial and export market and applied to local processing and sale so that producer cannot obtain unfair advantage by selling grain in excess of quota to local mall for locally sold flour, seed, oil. Held that application of Act for intraprovincial transactions valid. Incidental to principal purpose of Act, to regulate interprovincial export and trade in grain. (a) *This case is a departure from Privy decisions, which had decided fed regulation under trade and commerce could not embrace wholly intraprovincial transactions. (b) Caloil v. A.G. Can: (*confirmed above decision), Court upheld federal prohibition on transportation or sale of imported oil west of the Ottawa Valley. Purpose was to protect domestic industry from cheaper imported product. Upheld as incident in administration of extra provincial marketing scheme and as integral party of control of imports in furtherance of extraprovincial trade policy. (3) Existence of interprovincial flow enabled courts to uphold regulation of intraprovincial transactions on ground that such regulation was incidental to main object of regulating the interprovincial flow. (4) Re Agricultural Products Marketing Act: fed statute interlocking federal and prov statutes that 1)established and empowered national egg marketing agency and prov egg marketing agencies, 2) controlled the supply of eggs by imposition of quotas on each prov and within each prov quota on each producter 3) provided for disposal of surplus product, 4) imposed levies on producers to finance cost of scheme and esp cost of surplus disposal. (a) Not confined to interprovincial trade, and federal levies imposed on all producers whether production destined for local or out of province market. Heavy bc 90% of all eggs produced in Canada were consumed within province of production. Upholding it made expansion of fed power into local markets. Courts deciding factors that impressed it: (b) Fed act was centerpiece of cooperative scheme designed to rationalize egg market. Scheme agreed to by all 11 govts and executed by complementary legislation in all 11 jdx. (c) Related factor was extreme difficulty of disentangling fed and prov elements of actual marketing plan for eggs that had been established. Complex undergrowth of regulations and orders emanating from 2 levels of govt. (5) *Same model of interlocking fed and prov legislation use to create a national chicken marketing plan. Divided national market for chickens by allocating a quota for each prov and within each prov the provs quota was divided up among individual producers. Producers free to sell chickens wherever they choose. Did not distinguish whether export or local consumption.


(a) Federation des producteurs v. Pelland: chicken producer from Quebec exported to Ont challenged validity of quota. B/c quotas of individual producers were set under authority of prov legislation, argued that quotas were inapplicable to production that was destined for markets outside prov. Court rejected. Held that in context of cooperative fed-prov scheme, provinces could impose production quotas without regard of destination of product. Court *reaffirmed Agricultural products (6) Dominion Stores v. The Queen: Court struck down part I of fed Agricultural Products Act. Act established grades with appropriate grade names for agricultural products. Part II made it compulsory to use grade names for products in interprovincial or international trade. Part I Did not make it compulsory to use grade names for products marketed within prov of production, but provided that if names were used in local trade, then appropriate fed standards had to be complied with. Company selling applies acquitted b/c Part I unconstitutional attempt to regulate local trade. (7) Labatt Breweries v. A.-G. Can: fed trade and commerce power rejected as support for fed legislation. Struck down compositional standards for beer enacted under Foods and Drugs Act. Rejected power to regulate interprovincial trade as ground of validity. Standards imposed without regard for products movements across provincial boundaries. Also affirmed insurance case rule: trade/commerce will not authorize regulation of single trade or industry, even if industry dominated by a few large firms which advertise and market on nation-wide basis. 3. General Trade and commerce: Two categories of trade and commerce stated in Citizens Insurance Co v. Parsons: 1) interprovincial or international trade commerce, 2) general regulation of trade. a) General Motors v. City National Leasing: until this case. general regulation of trade rejected as support for regulation of insurance, combines, prices, profits; labor relations, marketing, prohibition of margarine. b) Canada Standard Trade Mark Case: (valid exercise of general trade and commerce power). Privy Council upheld fed statute which established a national mark Canada Standard - voluntarily used but if used must comply with fed standards. Not confined to interprovincial and international trade. Decided that general trade of commerce would authorize fed standards of production or manufacture for products traded locally, provided that fed standards were tied to voluntary use of a distinctive mark. (1) Dominion Stores v. The Queen: Grade name Canada fancy used by stores for applies should attract fed regulation in same way for same reasons as above case. But in Can Standards, mark was vested in Crown, distinguished this case form above case. (2) Labatt Brewerie v. AG Can: struck down compositional standards for light beer. Standards applicable through voluntary use of light beer. Difference with Canada Standard is in that case application for fed standards depended upon use of distinctive description (Canada Standard). Here, application depended on use of common description light beer. Little resemblance to Canada Standard. Use of distinctive description voluntary, b/c easy for manufacturers who do not wish to comply with fed standards to avoid it. But common description is mandatory since it is often not practical for manufacture to produce marketable product without calling it by its common name (light beer, beer, whisky) c) MacDonald v. Vapor Canada: issue as to validity of fed law which prohibited and provided civil remedy for any act or business practice which was contrary to honest industrial or commerce usage in Canada. Court held that civil COA or contract or tort was within property and civil rights of province. Only federal aspect of law was that it applied to all of Can, but general application has never been sufficeint to shift law dealing with proper and civl rights of prov into federal head of power. Could have been available if law was part of regulatory scheme, administered by federally appointed agency. (1) Anti-inflation reference: federal regime of wage and control, argued under peace, order, and good govt power. Legislation upheld under emergency branch of peace, order and good govt power. No reference of trade and commerce, yet had regulatory scheme and admin agency described in McDonald v. Vapor (2) General Motors v. City National Leasing: challenge to validity of civil remedy thats introduced in 1975. Price Discrimination in financing of trucks and cars leased, all financial arrangements and transactions took place within single province. Court held that Combines Investigation Act (Competition Act0) was valid exercise of general trade and commerce power. (a) Applied the Vapor Test: for determining validity for legislation i) Presence of general regulatory scheme ii) The oversight of a regulatory agency iii) Concern with trade as a whole rather than with particular industry iv) Legislation should be of a nature that provinces jointly or severally would be constitutionally incapable of enacting. (*new element added now) v) The failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country. (*new element added now)


(b) All 3 elements present- 1) was a regulatory scheme, 2) operated under foresight of reg agency, 3) concerned with trade in general, 4) and 5) only national regulation of competition could possibly be effective b/c ability of factors of production move freely from one province to another. (c) Note:General branch of trade and commerce power authorizes regulation of intraprovincial trade. There would be no need for a general branch of trade and commerce if it did not extend beyond interprovincial and international trade. (d) Conclusion: Parliament and provinces have constitutional power to regulate intraprovincial aspects of competition. d) Trade marks: Con Act 1867 gives Parliament authority to legislate patents, copyrights, but silent as to trade marks. Canada has a federal trade marks Act: system of registration, exclusive use of registered trade marks, remedies for infringement. Act recognizes unregistered trade marks and provides them w/ protection of a civl remedy. (1) Canada Standard Trade Mark Case: (*described above). upheld fed statute authorizing use of Canada Standard designation to denote compliance with fed standards. Not about trade marks but, authority for trade marks Act was the trade and commerce power. Trade marks attach to goods and services, which move across provincial borders, as do consumers with their opinions about products and manufactures. Protection of trade mark connected to mobility of goods and services and individuals, and part of regulation of competition. (2) Kirkbi v. Ritvik Holdings: manufacture of LEGO sued manufacturer of Mega Bloks, which used same interlocking system as Leg, under s. 7(b) federal trade marks Act (holder of unregistered trade mark can sue competitor who branded in a way that causes confusion between product and trade marked product). Mega Bloks won on ground that Legs system was functional characteristic of product and that could not as a matter of law be a trade mark. (a) Mega raised constitutional issue with 7(b) and its civl remedy. Court examined entire validity of Act. - Held that governed by five criteria of City National Leasing , and that all 5 criteria present in Trade Marks Act. (national regulatory scheme, over sight of registrar of trade marks, concern with trade in general, incapability of provinces to establish scheme and necessity for national coverage) (b) Held, Sec 7(B) was sufficiently integrated into regulatory scheme to be valid part of the Act. Valid exercise of general branch of grade and commerce power. 4. General Motors of Canada Ltd. v. City National Leasing: a) Issues: whether s. 31.1 can be upheld as constitutionally valid by virtue of its relationship with the Combines Investigation Act. Answering this question requires addressing two issues: (1) Is the Act valid under the federal trade and commerce power, expressed in s. 91(2) of the Constitution Act, 1867; and (2) Is s. 31.1 integrated with the Act in such a way that it too is intra vires under s. 91(2). b) Background: The Combines Investigation Act is valid under the federal trade and commerce power, in particular its "second branch" over "general" trade and commerce, and s. 31.1 is constitutionally valid by virtue of its being functionally related to the Act. c) Arguments: (1) CNL argues 31.1 was iwithin the constitutional competence of the federal government; s. 31.1 was clearly sustainable under the "general" branch of the federal trade and commerce power as economic legislation affecting the nation as a whole. (2) GM argues creation of a civil cause of action was a matter of provincial jurisdiction over property and civil rights granted to the provinces by s. 92(13) of the Constitution Act, 1867. GM argued vigorously against finding s. 31.1 valid under the trade and commerce power; s. 31.1, it was urged, did not satisfy any of the necessary indicia of valid trade and commerce legislation, nor could the civil action in s. 31.1 be characterized as necessarily incidental to a valid scheme regulating trade and commerce. d) Rule/Analysis: (1) Since Parsons, the jurisprudence on s. 91(2) has largely been an elaboration on the boundaries of the two aspects or "branches" of federal power: (1) the power over international and interprovincial trade and commerce; and (2) the power over general trade and commerce affecting Canada as a whole. (CNL attempts to uphold #2) (2) The analysis to determine constitutionality of provisions under the trade and commerce power involves the following steps: (a)First, the court must determine whether the impugned provision can be viewed as intruding on provincial powers, and if so to what extent. (b) Second, must ascertain whether the act, or a severable part of the act 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. If the scheme is not valid, that is the end of the inquiry. i) Consider the validity of the scheme under the general trade and commerce power in light of the criteria Vapor Test for determining validity for legislation


(1) Presence of general regulatory scheme (2) Monitored by oversight of a regulatory agency, (3) Concern with trade as a whole rather than with particular industry Legislation should be of a nature that provinces (4) jointly or severally would be constitutionally incapable of enacting. (*new element added now) (5) 5) The failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country. (6) (Requirements ensure that federal legislation does not upset the balance of power between federal and provincial governments. (list is not exhaustive, must still do case by case analysis). (3) All elements present- 1) was a regulatory scheme, 2) operated under foresight of reg agency, 3) concerned with trade in general, 4) The provinces jointly or severally would be constitutionally incapable of passing this legislation, 5) The failure to include one or more provinces or localities would jeopardize successful operation of the legislation in other parts of the country. (4) If the regulatory scheme is declared valid, the court must then determine whether the impugned provision provision can be constitutionally justified by reason of its connection with valid legislation. (a)This requires considering the seriousness of the encroachment on provincial powers, in order to decide on the proper standard for such a relationship. (b) If the provision passes this integration test, it is intra vires Parliament as an exercise of the general trade and commerce power. (c)If the provision is not sufficiently integrated into the scheme of regulation, it cannot be sustained under the second branch of s. 91(2). (1) Section 31.1 creates a civil right of action and, since the creation of civil actions generally lies within provincial jurisdiction, it appears to encroach to some extent on an important provincial power. The encroachment is not serious. (2) The Combines Investigation Act is valid federal legislation under the general trade and commerce power. (3) The regulation of competition falls within federal jurisdiction in its intraprovincial dimension and the Act therefore need not be read down so that s. 31.1 only applies to interprovincial trade. Because the regulation of competition is so clearly of national interest and because competition cannot be successfully regulated by federal legislation restricted to interprovincial trade, the validity of the federal legislation must be determined without heed to the provincial legislation. e) Conclusion: Found that s. 31.1 to be intra vires the federal Parliament. In answering the two aforementioned issues: (1) The Combines Investigation Act is valid under the federal trade and commerce power, in particular, it is valid under the "second branch" of that power, the power over "general" trade and commerce. (2) S. 31.1 is constitutionally valid by virtue of being functionally related to the Act. f) Held: The appeal should be dismissed. Both constitutional questions should be answered in the affirmative. 5. Reference Re Securities Act: look at above notes. E. PEACE, ORDER, AND GOOD GOVERNMENT - Ch. 20 1. Constitution Act 1867 s. 91(opening words): powers of parliament - laws for peace, order, and good govt in relation to all matters not w/n classes of subjects in this act 2. Residuary nature of power: POOG residuary b/c confined to matters w/n classes of subjects by this Act. Anything not in prov head of power, must be w/n fed. Its all power not allocated to provinces. Not a general theory of power b/c: (1) The federal list has independent standing. Trade commerce, banking, bankruptcy, promissory notes, patents, copyrights, marriage divorce, would have been held to come w/n prov head of property and civil rights if they had not been specifically enumerated in the federal list. if not specifically enumerated they would therefore have been excluded from POGG language. (2) it does not accord with practice of courts in applying power distributing provisions of the Constitution. Thus, residuary theory of POGG is more helpful than general theory. b) POGG power has been trunk from which 3 branches of legislative power have grown: 1) gap branch, 2) national concern, 3) emergency branch. 3. The Gap Branch: one of the offices of POGG power is to full lacunae or gaps in scheme of distribution of powers. Gaps: a) Incorporation of companies: Con act empowers prov legislatures to make laws in relation to incorporation of companies with provincial objects. Courts hold power to incorporate companies with objects other than provincial must fall w/n federal POGG power b/c of its residuary nature.


b) Treaties: Radio Reference framers of con act did not contemplate canada would acquire power to enter treaties on its own. Power came w/n POGG b/c not mentioned explicitly in s. 91 or 92. c) Official Languages: Jones v. AG NB: Upheld validity of Federal Official Languages Act, act attempted to guarantee equal status of french and english in parliament and govt of Canada. d) Offshore minerals: were both off share of BC and NFL, ended up falling w/n federal POGG in its residuary capacity. e) Can classify law by labeling its matter of pith and substance w/ a name which does not appear to come w/n any the enumerated heads of power. f) POGG language completes incomplete assignment of power. Gap branch of POGG covers these limited and unusual cases where application of POGG is almost logically required. New or unrecognized law might come within prov property and civil rights 92(13), or matters of local or private nature in prov 92(16); depends on nature of new matter and scope attributed to heads of power. 4. The National Concern Branch a) History of national concern: (1) Russel v. The Queen: Privy held that statute doe snot fall within prov head of power so must be federal (Canada Temperance ACt (2) Local Prohibition: emphasized things that are w/n national concern are federal, even if its between local or prov (local option temperance scheme, upheld prov scheme as under property and civil rights, and matters of private or local in nature) National dimension test (3) Some legislation in original local and prov could acquire national dimensions, or national concern, and thereby come within federal parliament POGG power (concern of National Concern branch) (4) Viscount Haldane: only an emergency would justify pogg power. (5) Canada Temperance: court refused to overrule Russell. Held Russell had not been decided on basis of an emergency, and pogg was not confined to emergencies. Repudiated line of cases that asserted emergencies. (a) National Concern Test: if it goes beyond local or prov concerns from its inherent concern and be concern of Dominion as a whole then it falls w/n competence of parliament as a matter affect POGG, although it may affect matters reserved to prov legislatures. (case establishes that there was a national concern branch of POGG and an emergency branch) (6) National Concern Branch provided decision for three cases: (a) Johannesson v. West St. Paul: held that aeronautics satisfied national concern test. Necessity of development of air services to be controlled by national govt responsive to needs of nation as a whole (b) Munro v. National Capital Commission: held national capital region (around Ottawa straddling Ont and Que, designed by fed legislation) met national concern test. Deals w/ matters of national concern. (c) R. v. Crown Zellerbach: held marine pollution satisfied national concern branch. Fed Ocean Dumping Control Act prohibited dumping at sea, upheld to marine waters at BC boundaries. Held marine pollution b/c its extra provincial as well as international character and implications, clearly a matter of concern to Canada as a whole. (d) Ontario Hydro v. Ontario: upheld Atomic Energy Control ACt. Fed jdx over energy derived from 92(10(c) and national concern branch of pogg. Held that production, use and application of atomic energy constitute matter of national concern, b/c its predominantly extra provincial and international in character and implications. b) Definition of national concern: Nation wide importance of a subject of leg that determines whether or not it has requisite national concern. Matter of national concern must be of import or significance to all parts of Canada. There are cases where uniformity of law throughout country is not merely desirable but essential in the sense that the problem is beyond the power of the provinces to deal with it. (1) *Provincial inability test: example of epidemic of pestilence - failure of prov to take preventative measures would lead to spreading of the disease into those provinces which had taken preventative measures. (a) Aeronautics - Johannesson: failure of one prov to use uniform procedures for air space, will lead to endanger residents of other prov engaged in air travel. (b) National Capital region - Munro: failure of Que or Ont to cooperate in development would denied canadians of symbolic value of a suitable national capital. (c) Marine pollution - Crown Zellerbach: failure of one prov to protect its waters would lead to pollution of waters in other prov. (d) Nuclear power - Ontario hydro: failure of prov to to enact adequate regulatory measures, would expose people of other prov to risk of an environmental catastrophe. (2) Most important national concern is a need for one national law which cannot realistically be satisfied by cooperative prov action b/c failure of one prov to cooperate would carry with it adverse consequences for residents of other prov. c) Distinctness:


(1) Anti-Inflation Reference: upheld federal wage and price controls under emergency branch of pogg power. Laskin Left open possibility that fed wage and price controls could also have been supported under the national concern branch. Beetz denied this - instead inflation was too broad and diffuse a topic to qualify as a matter coming w/n national concern branch of pogg power. In order to qualify as a matter, a topic must be distinct: it must have a degree of certainty that makes it indivisible, an identity which makes it distinct from prov matters and a sufficient consistence to retain the bounds of form. (2) R.v . Crown Zellerbach: majority upheld federal Ocean Dumping Control Act, which prohibited dumping at sea on basis of marine pollution, was a matter of national concern. Majority held that marine pollution, although obviously affected by the air and by fresh water flowing into sea, did have ascertainable and reasonable limits, in so far as its impact on prov jdx is concerned. (a) *Requirement of Distinctness: for matter to be of national concern, it must have singleness distinctiveness and indivisibility that clearly distinguishes it from matters of prov concern and a scale of impact on prov jdx that is reconcilable w/ fundamental distribution of legislative power under the Constitution. (3) Requirement of distinctness is necessary but sufficient for matter to be in national concern branch of pogg. A distinct matter would have to meet provincial inability test, to be admitted to national concern bracn of pogg. Distinct matter would come within prov power if it came w/n property and civil rights of prov, or if it were merely a local or private nature in the prov. d) Newness: Emphasis of distinctness is replaced by newness. (1) Beetz in Anti-Inflation Reference: refers to new subject matter, that is not covered by enumerated head, not previously considered by courts, yet to allocate prov or fed head. (2) Television is not covered by pogg but by an enumerated fed power 92(10)(a). Buses, trucks, telephones, movies, all outside pogg. Autonautics is an anomaly. (3) The Queen v. Hauser: court held that federal Narcotics Control Act was valid exercise of pogg power. surprising b/c Act had been upheld previously as criminal law. No indication give of why narcotics are national concern, those words not used. Reasoning: act adopted to deal with new problem which did not exist at time of confederation; subject matter of legislation is properly to be dealt with on same footing as such other new developments as aviation (Aeronautics) and radio communications. (a) If fed power to prosecute criminal law was thought not to exist or in doubt, manifest inconvenience of that disability would inevitably create tendency in Court to move laws out of criminal category and into another, POGG, where fed eral enforcement power was clear. (trying to avoid facing question whether fed had power to provide for prosecution of crim) (b) Since then, decided that fed govt has same power of enforcement over crim laws as over other laws. No reason to shun criminal classification. (4) R.v.Malmo-Levine: criminalization and possession of marijuana challenged. Held that Act was valid exercise of criminal law power and **overruled Hauser that act came within national concern branch of pogg. (5) No requirement of newness, irrelevant and unhelpful in context. Newness or lack thereof, should be neutral factor in determining content of residuary power. 5. The Emergency Branch a) The non-emergency cases: (1) Insurance Reference: held that fed insurance act (license insurance companies) unconstitutional. Privy rejected arguments based on trade commerce and pogg - pogg did not enable parliament to trench on subject matter entrusted to provincial legislatures. (did not draw exceptions, nor emergencies, did not refer to national dimensions test) Cannot use pogg simply b/c industry is nation wide and important to national economy. (2) Board of Commerce Case: Viscount Haldane: emergency test emerged here although word not used. Struck down legislation which prohibited hoarding of necessaries of life (food, clothing, fuel) and required stocks of such necessaries to be sold at fair prices. Lordships rejected pogg power as authority for statute on ground that highly exceptional or abnormal circumstances would be required to justify invocation of pogg (war or famine) (3) Toronto Electric Commissioners v. Snider: whether fed leg for settlement of industrial disputes (labor leg) was valid. Viscount: it was not valid. Relations between employers employees matter of civil rights in province and w/n prov jdx. Pogg power available only in cases arising out of some extraordinary peril to national life of Canada (war) (a) Altered character of nations labor laws by remitting most of it to provinces for enactment, (4) Neither the above 2 cases mentioned national dimensions test, makes Russell difficult to reconcile. (5) New Deal cases: Lord Atkin through Privy held laws providing for weekly rest, min wages, max hours were labor laws which b/b/c of Snider were incompetent to fed govt. So was unemployment insurance. Held that only an emergency would


justify invocation of pogg power. Did not question whether depression requiring national action could qualify as emergency. Denied depression was emergency. (6) Margarine Reference: Privy through Morton held federal prohibition on manufacture and sale of margarine was invalid. Arguments based on pogg rejected on basis of emergency test. (7) Unemployment Insurance Reference: unemployment insurance added to head 2A list of fed enumerated powers. Other national social insurance plans covering health and welfare established under prov w/ fed govt setting standards and sharing cost. (8) Natural Products Marketing Reference: confirmed that pogg did not offer solution to problem of enacting effective marketing schemes. b) War:War Act allowed fed govt to make regulations on anything if in a war or invasion. Came in force during both world wars, fed govt embarked on economic and other controls. Emergency branch of pogg should be confined to temporary and extraordinary role required or national regulation in time of actual war or other emergency. (1) Ford Frances case: Privy held regime of price control (established during WWI) was constitutional. In emergency, pogg could authorize laws which in normal times would be competent only to prov. (2) Wartime Leasehold Regulations Reference: Rent control during WWII was also upheld based on reasoning above. (3) Japanese Canadians Reference: deportation of Japanese during WWII also upheld based on same reasoning. c) Apprehended Insurrection: during October Crisis when Quebec separatist group kidnapped British diplomat and Quebec cabinet minister (killed), fed govt of Trudeau declared apprehended insurrection exists, thereby bringing War Measure Act into force. Used act to make public order regulations, gave police new powers to arrest search seizure and detention. No fewer than 497 arrested and detained. 62 Charged, less than one-third convicted. No review of Act by courts. Those mistreated compensated by Que govt. d)Inflation: (1) Anti-inflation reference: fed anti inflation act was upheld as emergency measure. Act controlled increases in wages, fees, prices, profits, dividends. Scheme temporary, enacted by fed. Automatically expired in 1978 unless terminated earlier or extended by parliament approval. After in force for 6 months, fed govt referred Act to Court for decision of constitutionality. Held Act was valid as exercise of fed parliaments emergency power. During program, 20 months of double digit inflation in Canada with high rate of unemployment. Situation characterized as emergency. (but Act did not assert emergency existed) (a) Court held that it would be unjustified in concluding based on material before it, that Canada did not have rational basis for regarding Act as measure that was temporarily necessary to meet situation of economic crisis imperilling well being of Canada or requiring Parliaments stern intervention in interests of the country as whole. (b) Court only needed to find rational basis for finding an emergency, not find actual emergency exists. Not necessary for proponents of legislation to establish rational basis,its for the opponents to establish absence of rational basis. (c) *means its impossible to challenge fed law on ground that there is no emergency, fed can use emergency power at will. e) Temporary character of law: limit on fed emergency power, emergency is temporary. Ostensibly temporary measure can be continued in force by Parliament while ostensibly permanent measure can be repealed any time. Emergency can be caused by structural defects in social or economic order which need to be corrected not only to cure emergency but also prevent occurence of future emergencies. (1) New deal statutes: enacted to deal with depression had this dual character above. Designed to help alleviate immediate suffering of depression and provide permanent economic security which hoped would prevent future crisis. Unemployment insurance is example below. (2) Unemployment Insurance Reference: Court struck down new deal legislation, depression did not qualify as genuine emergency, were influenced by permanent nature of new deal measures. (3) Board of Commerce: fed leg controlling hoarding and profiteering caused by economic dislocation, after WWI, held unconstitutional. Council doubted peace time economic problem could be characterized as emergency, influenced by permanent character. (4) Contrast above with Anti-inflation reference: here legislation was temporary. No permanent measure has ever been upheld under emergency power. 6. Relationship between national security and emergency: a) Gap Branch of pogg stands on its own, does not reconcile with National Concern or w/ Emergency Branches. b) Need line between two lines of cases where national concern doctrine will suffice to invoke Pogg, and where emergency branch will suffice to use fed power.


c) Johannesson, Munro, and Crown Zellerbach all deal with zoning, expropriation, and logging, normally w/n property and civil rights in prov, all three cases had affect on property and civil rights in prov. Yet national concern doctrine NOT emergency doctrine was applied in these cases. d) Sweeping category of aviation, national capital region, and atomic energy had a natural unity that is quite limited and specific in context. If sweeping category were fed subject matters on basis of national concern, there would be no limit to reach of fed leg powers and existing powers would become unstable. In normal times, such categories had to be broken down into specific and meaningful categories for purposes of allocating legislative jdx; on basis some parts of sweeping category would be infed some in prov jdx. Only in an emergency the fed can assume plenary power over whole of a sweeping category. e) Anti-inflation reference: wage and price controls (sweeping category) had to satisfy stricter emergency test. Beetz opinion tried to reconcile emergency and national concern cases. (agreed upon by 5 members and followed in Crown Zellerbach). Refused to accept inflation as new head of fed power, lacked specificity. -- In normal times, wage and price control outside competence of fed power, but in an emergency it was within fed, knows no limit other than those which are dictated by nature of crisis. But one of those limits is temporary nature of the crisis. (1) Beetz: pogg power performs 2 separate functions in constitution: 1) gives to fed parliament permanent jdx over distinct subject matters which do not fall in enumerated heads of s. 92, (aeronautics, national capital region) 2) pogg power gives fed parliament temporary jdx needed to deal with emergency. f) In leading emergency cases did involve sweeping new category of fed power over property, prices, wages, or persons. New fed law only upheld if there was an emergency. The national concern cases each involved legislation over more distinct and specific subject matter (aeronautics, national capital, atomic energy) in these cases there was no emergency, and legislation was upheld if subject matter was judged to be of national concern. g)Cases that do not fit anywhere (1) Russel and Margarine do not fit. If fed prohibition of one product (margarine or liquor) requires emergency then Russell is wrong. If subject matter of margarine is sufficiently specific that it requires only showing national concern, (Russell implies) then it is wrong to call for emergency in Margarine. (2) Even if National concern test is appropriate, Margarine result is justified b/c prohibition of product lacking special strategic importance was not sufficiently national in its dimensions, but its not easy to see the national concern in Russell. (3) Unemployment Insurance Reference: also difficult to make sense of. Unemployment insurance was sufficiently specific to qualify as new judge made head of fed power and it had requisite national concern. Even if emergency was necessary for this and other new deal statutes, one would think depression would qualify. But Russell and Unemployment Insurance are difficult to explain on any theory. (decided wrong). 7. Reference re Anti-Inflation Act: Act provide for the restraint of profit margins, prices, dividends and compensation in Canada and thereby to accomplish the containment and reduction of the current levels of inflation which the Parliament of Canada recognized as contrary to the interests of all Canadians. Such containment and reduction of inflation was recognized by the Parliament of Canada as a matter of serious national concern. a) Majority (1) The preamble to the Act was sufficiently indicative that Parliament was introducing a far-reaching programme prompted by what was in its view a serious national condition and the absence of the very word "emergency" was not unduly significant (2) Court must persuade itself that there was a rational basis for the legislation under the head of power invoked in support of its validity. (3) I am accordingly satisfied that the record discloses that in enacting the Anti-Inflation Act the Parliament of Canada was motivated by a sense of urgent necessity created by highly exceptional circumstances and that a judgment declaring the Act to be ultra vires could only be justified by reliance on very clear evidence that an emergency had not arisen when the statute was enacted. b) Concurrence Martland: Whether or not the Anti-Inflation Act is ultra vires must depend on whether or not the legislation was enacted to combat a national economic emergency. There is nothing to exclude application of the principles to a situation created not by war and the aftermath of it, but by highly exceptional economic conditions in time of peace. Such conditions exist where there can be said to be an urgent and critical situation adversely affecting all Canadians presenting an emergency which can only be effectively dealt with by Parliament in exercise of the power of s. 91 of the B.N.A. Act "to make laws for the peace, order and good government of Canada". However the authority of Parliament in this regard is limited to dealing with critical conditions and the necessity to which they give rise and must be confined to legislation of a temporary character. (1) The validity of the Act does not rest on the "national dimension" or "national concern" doctrine. (2) Parliament did not derive its authority to pass the Anti-Inflation Act from any of the enumerated classes referred to in s. 91 of the B.N.A. Act. The source of the Federal power must, therefore, be found in the "peace, order and good


government" clause and the federal authority to which that clause relates can only be extended to invade the provincial area when the legislation is directed to coping with a genuine national emergency. (3) To determine whether the legislation in question was indeed enacted to combat such an emergency it was essential for the purpose of disclosing the antecedent circumstances to consider not only the Act but the material which Parliament had before it, principally, the White Paper tabled in the House by the Minister of Finance c) Dissent Beetz: The Anti-Inflation Act and the guidelines thereunder directly and ostensibly interfere with classes of matters which have invariably been held to come within exclusive provincial jurisdiction, more particularly property and civil rights and the law of contract. (1) If Parliament has exclusive authority in relation to the "containment and reduction of inflation", as being of national dimension or concern, a fundamental feature of the constitution, its federal nature, the distribution of powers between Parliament and the Provincial Legislature would disappear not gradually but rapidly. (2) Constitute a national emergency. The power of Parliament to make laws in a great crisis knows no limits other than those dictated by the nature of the crisis. But one of the limits is the temporary nature of the crisis. (3) There is nothing in the Anti-Inflation Act or the Guidelines to show that they have been passed to deal with a national emergency and its lack of comprehensiveness may be indicative of its ordinary character. d) Holding: Act held not to be ultra vires in whole or in part, it was valid. 8. R.v.Crown Zellerbach Canada Ltd: During the conduct of its logging operations, respondent dumped woodwaste in the waters of Beaver Cove, an area within the province of British Columbia, and was charged with contravening s. 4(1) of the Ocean Dumping Control Act. The federal legislation prohibits the dumping of any substance at sea except in accordance with the terms and conditions of a permit, the sea being defined for the purposes of the Act as including the internal waters of Canada other than fresh waters. The respondent had a permit to dump under the Act, but it did not cover this site. The waters of Beaver Cove are navigable and flow into Johnstone Strait which is connected with the Pacific. There was no evidence of any dispersal of the woodwaste or of any effect on navigation or marine life. a) Issue: whether federal legislative jurisdiction to regulate the dumping of substances at sea, as a measure for the prevention of marine pollution, extends to the regulation of dumping in provincial marine waters. In issue is s. 4(1) of the Act is constitutional in its application to the dumping of waste in waters, other than fresh waters, within a province. (Answer: Yes, it is NOT ultra vires) b) Rule: The national concern doctrine, which is separate and distinct from the national emergency 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. (1) 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 that is reconcilable with the fundamental distribution of legislative power under the Constitution. (a) In determining whether a matter has the requisite singleness, distinctiveness and indivisibility, 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. c) Reasoning: A basis for federal legislative jurisdiction to control marine pollution generally in provincial waters cannot be found in any of the specified heads of federal jurisdiction in s. 91 of the Constitution Act, 1867, (1) Section 4(1) of the Ocean Dumping Control Act, however, is constitutionally valid as enacted in relation to a matter falling within the national concern doctrine of the peace, order and good government power of the Parliament of Canada (2) The control of marine pollution meets the test. Marine pollution, because of its predominantly extra-provincial as well as international character and implications, is clearly a matter of concern to Canada as a whole. The pollution of marine waters, including provincial marine waters, by the dumping of substances is sufficiently distinguishable from the pollution of fresh waters by such dumping to meet the requirement of singleness or indivisibility. (3) 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, [1976] 2 S.C.R. 373, 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. (4) For these reasons I am of the opinion that s. 4(1) of the Ocean Dumping Control Act is constitutionally valid as enacted in relation to a matter falling within the national concern doctrine of the peace, order and good government power of the Parliament of Canada, and, in particular, that it is constitutional in its application to the dumping of waste in the waters of Beaver Cove. d) Dissent: while Parliament may undoubtedly prohibit the dumping of anything into federal waters, such prohibitions against dumping substances into provincial waters must be linked to some federal power. deed, to respect the scheme of federalism provided by the Constitution, there must be an attempt to link the proscribed conduct and the actual or potential harm to what is sought to be


protected--here, the ocean. In the present case, s. 4(1) of the Ocean Dumping Control Act was ultra vires Parliament as there was no evidence of any such link. (1) The control of the environment is not a proper subject for incorporation into the peace, order and good government power under the national dimensions doctrine. To allocate the broad subject-matter of the environmental control to the federal sphere under its general power would effectively gut provincial legislative jurisdiction and sacrifice the principles of federalism enshrined in the Constitution. Further, pollution is not a new phenomenon, and neither are many of the kinds of activities that result in pollution. (2) The federal Parliament does not have such wide legislative power over local matters having local import taking place on provincially owned property. The prohibition in essence constitutes an impermissible attempt to control activities on property held to be provincial. e) Holding: The appeal should be allowed. F. CRIMINAL LAW - Ch. 18 1. Distribution of powers: a) Federal: Con Act 1867 by s. 91(27) confers powers to make criminal laws, its fed responsibility, in federally enacted criminal code. b) Provinces: investigate, charge, prosecute offense. 92(14) gives prov power to make laws in relation to admin of justice in prov, constitution, maintenance, organization of prov courts, and civil procedure. -- this provision allows prov policing, prosecution of offenses (power of enforcement), also gives jdx for criminal courts, and excludes it from fed 91(27). Crim trials take place in prov courts, but rules of procedure and evidence are federal 91(27). c) Corrections: Jdx over corrections divided. 91(28) fed has jx over penitentiaries, which hold offenders sentenced to imprisonment for 2 years or more. 92(6) gives prov jdx over prisons which hold offenders sentenced to less than 2 years. Provinces can also in 92(15) make laws in relation to imposition of punishment by fine, penalty, or imprisonment for enforcing any law of the prov made in relation to any matter coming w/n classes of subjects enumerated in section (penal sanctions), but is ancillary power, for prov offenses authorized under prov head of power. 2. Definition of criminal law: Haldane in Board of Commerce defined it too narrow - subject matter is one which by its nature belongs to domain of criminal jurisprudence. Atkin in PATA definition too broad and would enable fed to expand its jdx indefinitely, and uphold any fed law which employs prohibition and penalty as its primary mode of operation. (upheld anti competition laws under crim law power) a) Margarine Reference: law in issue prohibited importation, manufacture or sale of margarine. Purpose was to protect dairy industry. Privy council held law perfectly fitted criminal form of prohibition coupled w/ penalty, economic object of protecting industry from its competitors made law in pith and substance in relation to property and civil rights in the prov. 3rd ingredient in definition: criminal public purpose. Supreme Court Rand J. said prohibition not criminal unless it served a public purpose which can support it as being in relation to criminal law. Protection of dairy was not a qualifying purpose. (but he gave no test of public purpose) This case does not deny criminal law can serve economic ends. Large part of criminal law is devoted to protection of private party. b) Large part of crim law is devoted to protection of private property. Upheld: price discrimination, resale price maintenance and judicial power to enjoin some of prohibited practice. c) Boggs v.The Queen: Boggs license suspended b/c convicted in crim code of impaired driving and refusing to take breath test (in Ont resulted in automatic suspension of license) Supreme Court Estey J struck down fed crim code offense of driving motor vehicle while prov license suspended. Unconstitutional b/c license can be suspended for failure to pay insurance, civil judgments, taxes, licenses fees. These grounds bore no relationship to public safety. It was only an enforcement measure for prov regulatory and taxation regimes and did not purse public purpose required in Margarine. Unimpeachable if license suspended only crim code provisions concerned fitness to drive. Offense is confined to cases where prov disqualification resulted from violation of criminal code offense, would be sustained. d) Ward v, Canada: Court held fed regulation that prohibited sale of baby seals could not be upheld under crim law power, altho purpose was to limit killing of baby seals. Found that law was driven by concern about depletion of resource through large scale commercial harvesting, not inhumane method of killing. Purpose was to manage the fishery, and that was not a purpose that could sustain a crim law. Although could not be upheld under crim law power, it came w/n fed power over fisheries 91(12) and upheld on that ground. Court offered no distinction btn law for protecting environment which can be upheld and law for natural resources, which accordingly to this case, cannot be upheld. e) R.v.Malmo-Levine: Court rejected argument that harm principle was requirement of a valid crim law. Issue was validly of criminalization of possession of marijuana, argued that it caused no harm. Presence of harm to others was not a requirement of valid


crim law (altho found harms from marijuana). Harm to accused and moral concerns are adequate reasons. (Protection of environment and animals from cruelty is also a public purpose). 3. Food and drugs: a) Food and drug standards: food and drug legislation making illegal the manufacture or sale of dangerous products, adulterated products, or misbranded products is within the criminal power. But in Margarine Reference conceded that margarine was not injurious to health. This destroyed foundation of a secure criminal law foundation for the legislation (1) Labatt Breweries v. A.G. Can: Court held that part of fed food and drugs act that authorized regulations prescribing compositional standards for food was unconstitutional. Act stated anything containing light beer must contain no more than 2.5% alcohol. L violated regulation by its product titled lite beer which had 4% alcohol. Estey for Court held law unconstitutional, acknowledged criminal law power could be used to enact laws for protection of health (Food and Drugs act related to this) but found that alcoholic requirement for light beer was not related to health. Crim law power can also be used to enact laws to prevent deception Food and Drugs act related to this), but specification for composition not related to this either. Fed compositional standards cannot be supported under crim law power, also cannot be supported peace order and good govt power, or trade and commerce power, they were invalid. (decision means that all fed standards are invalid, except those that are related to health). (a) Estey impressed by label lite beer and that careful reader would not be deceived as its content (not light beer). But (author agues) parliament could rationally conclude that consumers do not often read or understand labels and that consumers should be able to count on fact that certain products with certain names imply particular characteristics (light beer was low, mayo has egg, jam and juice made from fruit, ice cream from milk, chocolate from cocoa beans). b) Illicit drugs: non medical use of marijuana, cocaine, heroin proscribed by fed narcotic control act, which prohibits production, importation, sale and possession of variety of illicit drugs. Act upheld as criminal law. (1) Schneider v. The Queen: Court upheld BC Heroin Treatment Act which provided for compulsory apprehension, assessment, and treatment of drug addicts, treatment could include compulsory detention in a treatment center for up to 6 months. Argument that it was really a crim law based on deprivations of liberty that were authorized by the Act. Act was oppressive, b.c coercive features not accompanied w/ procedural safeguards which surround crim justice process. Held medical treatment for drug addiction came within prov authority over public health as a local or private matter w/n s. 92(16) of the Con Act 1867, Coercive elements were incidental to its public health purpose. c) Tobacco: RJR-MacDonald v.Canada: Court reviewed validity of fed Tobacco products control act which prohibited advertising cigarettes and other products, required placement of health warnings on packages. Act contained prohibition and penalty, but was there a criminal purpose? Court held protection for public health required purpose to support exercise of crim law power. But only ads were prohibited, not sale/possession/mfr. Ads were not dangerous act and were w/n prov power over property and civil rights. (1) Dissent view that prohibition on ads of a legal product lacked typically a criminal purpose nad was outside federal crim law power. (2) Majority disagreed, power to prohibit tobacco b/c harmful effects also encompassed power to prohibit ads. So many people smoke so impracticable to prohibit product, but can prohibit ads, b/c still same underlying public purpose - the protection of public from a dangerous product. This did not alter pith and substance of law which was criminal. (3) Held: Act was within criminal law power of parliament. But act was struck down under Charter b/c impact of ads ban freedom of expression. (4) Sequel case: court upheld less sweeping ban on ads. Reaffirmed above ruling that restrictions on tobacco ads are valid exercise of parliaments crim law power. This version that survived Charter was limited ban, and upheld under s. 1 as reasonable limit on freedom of expression. 4. Health: topic is distributed to federal parliament or prov legislatures depending on purpose and effect of particular health measure in issue. There is a crim law aspect, authorizes fed to punishes conduct dangerous to health 91(27). 5. Environmental protection: R.v.Hydro-Quebec: all of the Courts judges agreed that protection of environment was a public purpose that would support fed law under crim law power. Court upheld the Canadian Environmental Protection Act under crim law power. 6. Abortion: Morgentaler v. The Queen 1975: validity of prohibition (prohibited, exception - abortion approved by committee which certified that continuing pregnancy would likely endanger moms life of death) on. Objective was to protect states interest in foetus. Held that it was open to parliament under crim law power to prohibit. a) Morgentaler 1988 case: After Charter enacted, Court struck down the law as contrary to s. 7 of the Charter. Crim code no longer prohibits abortion. Prov prohibition would be invalid attempt to enact crim law. 7. Competition law: encouragement of competition throughout private sector is longstanding policy of Canadas fed govt. Argument is that competitive market is best means of promoting efficient use of labor, capital and natural resources and that in those sectors


where market is competitive, govt regulation of industry is less necessary. B/c economic activity ignores prov boundaries and labor, capital and technology are highly mobile, Difficult to regulate anti competition in provincial level. Regulation must be fed to be effective. a) Law that prohibited combinations designed to limit competition intended to be criminal law in 1889 b) Board of Commerce case: Board of commerce statute declared unconstitutional - it prohibited combinations, b/c saw it as unlawful. c) PATA case: Investigation Act 1923 repealed 2 statutes and replaced them. New Act granted investigatory powers to a registrar and commissioners but these officials were not given power to order the cessation of anti competitive activities. Privy (Atkin) upheld act as valid criminal law. Said the domain of criminal jurisprudence theory. Held if Parliament genuinely determines that commercial activities which can be so described as to be suppressd in public interest, they see no reason why parliament should not make them crimes. *case stablished crim law power capable of expanding into world of commerce* d) Dominion Trade and Industry Commission Act 1935: to administer combines investigation act and gave new power of advanced clearance under which commission could approve certain agreements or practices and relieve them from prosecution. Power held unconstitutional by Court. Privy upheld validity of the investigatory and prosecutorial powers. e) Statute prohibiting anti-competitive price discrimination 1935 : added to crim code. Upheld by Privy as crim law. Then prohibited sale of price maintenance, held valid. Then fed allowed courts to make orders prohibited continuation of illegal practices or dissolving illegal mergers. This challenged - Goodyear Tire and Rubber Co. v. The Queen: constitutionality of prohibition order was challenged and upheld by Court as within criminal power. f) Competition law altered by 2 phases: (1) 1975 Combines Investigation act: expanded to apply services industries. Power to make orders compelling the cessation of certain anti-competitive practices. (2) 1986 name of Act changed to Competition Act, replaced old commission with Competition Tribunal, which had power to make orders, including cessation of certain anti-competitive trade practices. Powers cannot be upheld as crim law b/c tribubunal is not court of criminal jdx, and orders can be made w/o any prior conviction for ciminal offense. (3) Many anti competitive practices decriminalized now. Now Court held that trade and commerce power provides constitutional basis for the Act (4) General Motors v, City National leasing: case involved civil remedy in Act that allowed any person who had suffered loss as a result of breach of Act to sue the person who committed the breach in court of competent jdx to recover damages for the loss. Remedy available to private plaintiff in court of civil jdx. Crim law power cannot sustain such proceeding. But Court upheld constitutionality of civil remedy. Held Act was a valid law under trade and commerce power. No reason why its enforcement should be limited to criminal sanctions. Civil remedy was valid part of the law b/c designed to provide an incentive to private enforcement of law, as supplement to public enforcement. (a) Can assume that all parts of Act can be supported under trade and commerce power. But charter attscks on tribunal, investigatory powers in ACt and some criminal offenses have met with success. 8. Sunday observance law: a) Federal Power: before 1903, generally assumed that laws regarding Sunday observance were competent to provinces. Assumption shattered by Privy in A.G. v. Hamilton Street Railway: Ont Lord Day struck down as a criminal law. (1) Henry Birks case: prov law allowing close of shops on 6 roman catholic church holy days held to same category as sunday observance, held unconstitutional. These cases establish limits on work or play which are imposed for religious rasons are criminal laws solely w/n competence of fed parliament. (2) R.v.Big M Drug Mart: Court held Lords Day Act 1906 was valid exercise of crim law power b/c pursued religious purpose of preserving sanctity of Christian sabbath. Within crim law b/c intended to safe guard morality ( Margarine Reference). Supreme Court held Act offended Charter guarantee of freedom of religion b/c purpose was to compel observance of Christian sabbath. Could not be justified under s.1 b/c held contrary values to Charter. Held Lords Day was unconstitutional. b) Provincial Power: have authority to regulate conduct of most businesses or recreation, labor relations, as matters of property and civil rights or local matters w/n province. Power extends to imposition of limits on hours of work for labor. (1) Lieberman v. The Queen: Court upheld prov law which required closing of pool rooms and bowling alleys btn midnight and 6 am on any weekday and all day on Sunday. (extended power to limit business hours of commercial establishments). Distinguished from other Sunday observance cases b/c they had religion motivation in closing, here it was secular matters, but did not explain what could be secular for closing on Sunday which did not apply to other day of the week. (2) R.v.Edwards Books and Art: law attacked based on Charter, guarantee of freedom of religion. Court followed case above and held law providing pause day for secular purposes is properly characterized as relating to property and civil rights in province. Held that Ont law that prohibited retail stores from opening on Sunday had requisite secular purpose.


Became uniform pause day for retail workers. Could held that although purpose of law was secular, the effect of law was to limit freedom of religion. Held act was justified under s.1 b/c secular purpose justification. (a) Provided that provinces proposed and enacted sunday closing laws in language that was secular, provinces had recovered power that they were denied in Hamilton Street Railway 9. Gun Control: Firearms Act in 1995 amended to expand existing rules requiring all guns to be registered and all gun owners to be licensed. Re Firearms Act, held that Act was valid exercise of criminal law power (challenged by Alberta). Purpose of act was to restrict access to inherently dangerous things. History of violent crimes worse if access to guns. Requirements were all directed to public safety. Registration identified each gun with serial number and connected license holder (background checks). Focus on public safety distinguished Act from provincial property registration schemes. Held Act not regulatory, provisions enforced by crim law by imposing penalties for breach of prohibition. 10. Prevention of crime: a) Prevention in general: Laws aimed at prevent are valid, although depart from traditional format of crim law. (1) Not criminally responsible on account of mental disorder: continued detention of NCR offender despite fact that they have not been convicted of any crime. Role of crim law only extends to NCR offenders who present a significant threat to society. (2) Unfit to stand trial by reason of mental disorder: Accused who have been charged but have not been tried on ground that they are unfit to stand trial by reason of mental disorder. In justice system b/c subject to unresolved criminal charge. It is the criminal procedure aspect (not preventative aspect) that permits continued detention of accused who are unfit to stand trial. b) Young offenders: Federal Juvenile Delinquents Act upheld under crim law power. Replaced with Young Offenders Act, which has programmes under whicih young offenders could be diverted away from crim courts and not subjected to traditional crim sanctions. Upheld as exercise of preventative aspect of crim law power. 2003 Replaced by Youth Criminal Justie Act, which makes more detailed provision for diversion of less serious offenses, including specific provisions for non judicial measures such as police warnings and cautions and referral to community programs in place of charges. For serious offenses, Act makes provision for young offenders to be given adult sentences although young offenders cannot be tried in adult court. All are tried in Youth Justice Court. Determination of adult sentence made by judge at end of trial. 11. Criminal law and civil remedy: a) Federal power generally to create civil remedies: extent to which fed crim power will authorize creation of civil right of action for breach of criminal statute. Fed has no independent power to create civil remedies, so if pith and substance of fed law is the creation of a new civil COA, law will be invalid as coming within provincial head of power property and civil rights. (1) MacDonald v. Vapor Canada: Court held s.7(e) of federal trade marks act was invalid on above basis. Act allowed injunction, damages for violating prohibition of business practices. Act did not provide criminal sanction. S. 7e was an extension of tortious liability, which came w/n property and civil rights in province. (a) Where pith and substance of fed law is not creation of civil remedy, but some other matter w/n fed power, then civil remedy is valid. Remedy is incidental to main purpose of the law. From Vapor, there is dictum that civil remedy could be associated with patent, copyright, laws - laws confer civil rights of actions for injured persons. (b) Assumption is that law validly enacted in relation to trade marks (trade and commerce) or patents or copyright, may validly include appropriate means of enforcement. (2) Papp v. Papp: issue whether Divorce Act could validly provide for the custody of the children of a dissolved marriage. Clearly established that custody of kids was matter w/n property and civil rights in prov. App ct upheld custody provisions. Valid b/c there was a rational, functional connection btn them and the valid provisions of the Act concerning divorce. This reasoning was followed to uphold maintenance of children and spouses and for alimony, despite fact that maintenance and alimony would in other contexts come w/n property and civil rights in the province. (3) Functional Connection test; used since Papp, to uphold civil remedy in federal corporation law, against persons who engage in insider trading, competition law, anti-competition practices, trade mark law. b) Criminal law power to create civil remedies: crim law contemplates public rather than private enforcement, this differs from other heads of fed power. (1) R.v.Zelensky: Could upheld provision of crim code that authorized criminal court, upon convicting accused of indictable offense, to order the accused to pay to the victim compensation for any loss or damage caused by the commission of the offense. Power had three civil characters(below). Order for compensation was to be made as part of the sentencing process in the criminal proceedings, not in a separate civil action. (a) Order was to be made on application of victim (not prosecution) (b) Amount of compensation was to be related to the value of the victims loss (not degree of blame) (c) Order was to be enforced by victim as if it were civil judgment (not by the state, as a fine would be)


i) Majority held that dispute could properly be decided in civil action where there could be discovery, production of documents. Absence of procedures from crim trial did not make the power to award compensation unconstitutional, but did call for restraint in the exercise. (d) Zelensky: did not decide whether fed could authorize person who suffered loss as a result of the breach of crim law to bring separate civil action to recover damages outside crim process. (e) Fact hat court was divided on whether compensation order was discretionary part of sentencing process, suggests that court will be unwilling to uphold a separate civil right of action as ancillary to a criminal law. (2) Laws which are valid under pith and substance test may incidentally affect matters which ordinarily lie outside power of enacting body. (3) Rational, functional connection: Where federal statute will all traditional characteristics of crim law confers civil right of action question of validity depends on Papp test: whether there is a rational, functional, connection between what is admittedly good (prohibition coupled with penalty) and what is challenged (civil remedy) 12. Criminal law and regulatory authority: question is whether crim law power will sustain establishment of regulatory scheme in which admin agency or official exercises discretionary authority. Crim law ordinarily consists of a prohibition which is to be self applied by the persons to whom it is addressed. No admin agency needed, administered by law enforcement. Competition and insurance cases encourage view that crim law power will not sustain regulatory scheme which relies upon more sophisticated tools than simple prohibition and penalty. a) Insurance cases: Privy stuck down fed statute attempting to regulate licensing insurance industry. Parliament added section to crim code making it an offense to carry on business w/o license. Privy held that pith and substance of new law was establishment of licensing authority in the minister of finance, accordingly struck down the law as colorable attempt to do indirectly what parliament could not do directly. b) Nova Scotia Board of Censors v. McNeil: Court held that censorship of fils was not criminal. Upheld Nova Scotias censorship law as being the regulation of an industry w/n the province. Majority stated that censorship law did not take the criminal form of a prohibition coupled with a penalty. c) R.v.Morgentaler: abortion prohibited with dispensation for abortions approved by committee of hospital. Held unconstitutional on charter grounds on subsequent case. Pre-charter challenge on federalism grounds was rejected in this case. d) Possible required qualification of colorability: the more elaborate the regulatory scheme, the more likely it is that the court will classify the dispensation or exemption as being regulatory rather than criminal. e) R.v.Furtney: crim code prohibited lotteries, exception for organizations licensed by lieutenant governor in council of prov. 5 accused were licensed to conduct lotteries but were alleged to have violated conditions in prov licenses, which limited profits that could be made by management. Court held code provision was valid criminal law. Held decriminalization of lotteries licensed under prescribed conditions is not colorable. Viewed licensing provisions constituting a definition of the crime, defining reach of offense. Held that it was a constitutionally permissive exercise of the crim law power, reducing area subject to crim law prohibition were certain conditions exist. f) EPA is fed law establishing scheme for regulation of toxic substances. Toxic substance: harmful to the environment or danger to human health. Once classified as toxic, substance comes under the regulatory authority of governor in council, which may make regulations governing its release into environment, manner and conditions it can be manufactured, imported, processed, transported etc. Where substance not classified as toxic, Minister may make an interim order w/o following full procedure of classification. Interim order temporary. Breach of order or regulation is offense punishable by fine or imprisonment. (1) R.v.Hydro Quebec: prosecuted for violating interim order that restricted emission of substance to one gram per day. Corp argued Act (interim order) were outside crim law power of fed parliament. Act upheld. b/c administrative procedure for assessing toxicity of substance culminated in a prohibition enforced by a penal sanction, the scheme was sufficiently prohibitory. Exemption for provinces w/ equivalent prov laws ok b/c field is effectively concurrent. Act upheld as a crim law. Dissent thought act lacked prohibitory character of crim law, and troubled by exemption for province from regulation if prov already had equivalent law in place. g) Re Firearms Act: Court held purpose of gun control was public safety, which is typically criminal purpose. Court relied on Hydro case above that criminal law power authorizes complex legislation, including discretionary administrative authority (for licensing registering guns and holders). Also relied on RJR-MacDonald c. Canada that criminal purpose may be pursued by indirect means. Just as health risk of tobacco did not require outright banning, nor did safety risk of gun require outright banning. Measures that would indirectly advance legislative purpose (banning ads or licensing) authorized by criminal law power. 13. Provincial power to enact penal laws: under 92(15) prov can impose punishment by fine, penalty, or imprisonment for purpose of enforcing otherwise valid prov laws. Power requires courts to draw distinction btn valid provincial power with an ancillary penalty and a prov power that is invalid as being in pith and substance a criminal law. This creates uncertainty of prov and fed powers. Mostly, case law upholds prov penal legislation, except one case.


a) Bedard v. Dawson: Court upheld prov law authorizing the closing of disorderly houses (crim code convictions for gambling or prostitution). Prov law appeared to supplement crim law by adding new penalties but Court upheld law in relation to use of property, and at most was aimed as suppressing conditions likely to cause crime rather than punishment of crime. b) Provincial Secretary of PEI v. Egan: Court upheld prov law automatically suspending the drivers license of anyone convicted of crim codes impaired driving offenses. Held that prov law was in relation to regulation of highway traffic and therefore w/n prov competence. Paramountcy argument resolved in favor of prov law. c) Cases of careless driving, failing to remain at scene of accident, false info to prospectus, all upheld as valid crim law. All had offense similar to fed offense. Criminal law legislative power is concurrent. d) N.S. Board of Censors v. McNeil: prov film censorship upheld. e) A-G. Can and Dupond v. Montreal: municipal bylaw prohibiting all assemblies parades, gatherings in public domain upheld. Held that by law was valid regulation of the municipal public domain and that its purpose was not punitive but preventive of public disturbances. Dissent: by law was a criminal law, no regulatory purpose, but addressed breach of peace maintenance of public order, exclusively criminal concerns. f) Westendorp v. The Queen: Court struck down municipal by law that prohibited person from remaining on the street for purpose of prostitution and from approaching another person for purpose of prostitution, purpose was to control or punish prostitution. (by law made no attempt to control prostitution anywhere but on the streets, purpose to protect users of streets from activities of prostitutes and customers?). Means prov power to create offenses under 92(15) not as broad as fed power under 91(27). g) Chatterjee v. Ontario: police pulled over car that had no front license plate. Comp showed driver in breach of court order, arrested him, as incident of arrest, search the car. Found $29,000 in cash which smelled of marijuana, but no marijuana found. No charges, but prov attorney general obtained from superior court order forefeiting the money to prov crown on ground that money was proceeds of unlawful activity. Order was authorized by prov statute Civil Remedies Purpose of act to prevent persons from profiting from unlawful activity, to return property to its rightful owner, provide funds to compensate victims of unlawful activity. (1) Unlawful activity: included offenses under fed law and prov law, burden on crown on balance of probability. (never charged for crime that could be source of money, odor of weed, together with explanation of money, persuaded court of forefeiture. (2) Driver applied for declaration that Act unconstitutional, no charter, but federalism grounds that it was intrusion into federal realm of crim law. Act added further penalty to whatever prescribed in crim code and interfered with sentencing process. (3) Court held pith and substance of law was in relation to property. Purpose of preventing and compensating for crime competent to prov. (fed act was related to sentencing, prov act was independent of sentencing process). Upheld the act, crown kept $29,000. 14. Margarine Reference: Subsection a of Section 5 of the Dairy Industry Act provides that "no person shall manufacture, import into Canada, or offer, sell or have in his possession for sale, any oleomargarine, margarine, butterine, or other substitute for butter, manufactured wholly or in part from any fat other than that of milk or cream." In this case, Parliament had legislated against the production and trade of margarine, in order to give dairy businesses assurances that margarine would not threaten their existence. This legislation actually dated back to 1886, and it was claimed in the law that the real purpose was to target a product that was "injurious to health."[8] While this, if true, would have made margarine a fair target for criminal law, the federal government admitted before the courts that this assessment was simply false a) Issue: The Governor-in-Council referred to this Court under section 55 of the Supreme Court Act the following question: Is section 5(a) of the Dairy Industry Act, R.S.C. 1927, c. 45, ultra vires of the Parliament of Canada in whole or in part and if so in what particular or particulars and to what extent? b) Reasoning: is a law in relation to agriculture which the Parliament of Canada from time to time is empowered to make in relation to agriculture, and it is not within the competence of the respective provincial legislatures to enact legislation in this regard when Parliament has already covered the field. (1) I cannot agree, therefore, with the argument that the constitutional validity of the Dairy Industry Act is not supported under Section 95 of the British North America Act. Nothing more than the direct exercise of Parliament's jurisdiction over agricultural matters, or at least necessarily incidental and necessary for the effective control of agricultural matters in respect of milk and its byproducts. (2) Clearly such an Act is not limited to the regulation of one particular trade or of one particular commodity, nor to one, or more than one province; it is an Act embracing the whole Dominion. it only prohibits certain methods of manufacturing it. (3) prohibition in Section 5(a) is not prohibition at all, but a regulation of trade and commerce and properly within the competence of Parliament in virtue of Head 2 of Section 91 of the British North America Act. In my opinion, when that Section 5(a) is read in conjunction with the whole of the Act, there is no real prohibition. It is truly a "regulation of trade and commerce"; or that Section 5(a) is only a necessary incidental part of an Act which Parliament had full power to adopt by


virtue of Section 95 of the British North America Act and, moreover, in view of the form given to it, it also comes within Head 27 of Section 91 (Criminal Law). c) Held: (1) That the prohibition of importation of the goods mentioned in the section is intra vires of Parliament as legislation in relation to foreign trade. (Locke Jdissenting, maintaining that the entire section was ultra vires while expressing no opinion as to the power of Parliament to ban importation by appropriate legislation). (2) The prohibition of manufacture, offer, sale or possession for sale of the goods mentioned is ultra vires of Parliament, as it is legislation in relation to property (Rinfret CJ and Kerwin J dissenting). d) Disposition: appeal allowed in part. e) Rand J, in his concurring opinion for the majority: (1) Struck down the prohibition on production of margarine on the grounds that it was not valid criminal law. The prohibition on importation of margarine, however, was upheld under the federal Trade and Commerce power. (2) He outlined a TEST to determine if a law fell under the criminal law*** (a) A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or the safeguard the interest threatened. Two requirements must be met for a law to be criminal in nature: i) The law must be a prohibition with a penal sanction; and ii) The law must be directed towards a public purpose. (3) Rand also listed a few objectives that would qualify as legitimate public purposes, namely "Public peace, order, security, health, morality." (4) The ruling was appealed to the Privy Council, on the grounds that the legislation was valid under: (a) The federal power under s. 91(2), the federal power under s. 91(27), the residual power for peace, order and good government the power relating to agriculture under s. 95 15. Reference re Assisted Human Reproduction Act: a. Facts: ((1) Sections 5 to 9 prohibit human cloning, the commercialization of human reproductive material and the reproductive functions of women and men, and the use of in vitro embryos without consent. (2) Sections 10 to 13 prohibit various activities unless they are carried out in accordance with regulations made under the Act, under licence and in licensed premises. These controlled activities involve manipulation of human reproductive material or in vitro embryos, transgenic engineering and reimbursement of the expenditures of donors and surrogate mothers. (3) Sections 14 to 19 set up a system of information management related to assisted reproduction. (4) Sections 20 to 39 establish the Assisted Human Reproduction Agency of Canada. (5) Sections 40 to 59 charge the Agency with administering and enforcing the Act and regulations, and authorize it to issue licences for certain activities related to assisted reproduction. (6) Sections 60 and 61 provide for penalties, (7) ss. 65 to 67 authorize the promulgation of regulations, and (8) s. 68 gives the Governor in Council power to exempt the operation of certain provisions if there are equivalent provincial laws in force that cover the field. b. Procedural history: The Attorney General of Quebec accepted that some of the provisions were valid criminal law, but challenged the constitutionality of the balance of the Act in a reference to the Quebec Court of Appeal. According to the Attorney General of Quebec, ss. 8 to 19, 40 to 53, 60, 61 and 68 are attempts to regulate the whole sector of medical practice and research related to assisted reproduction, and are ultra vires the federal government. The Quebec Court of Appeal held that the impugned sections were not valid criminal law since their pith and substance was the regulation of medical practice and research in relation to assisted reproduction. c. Issue: whether some sections of the Assisted Human Reproduction Act are ultra vires the Parliament of Canada. a. The first question is whether the matter of the statutory scheme, viewed as a whole, is a valid exercise of federal power. The second question is whether its individual provisions are also valid. d. Per McLachlin C.J. and Binnie, Fish and Charron JJ: a. Test: there are two steps to determining whether a law is valid: 1) characterization and classification. First the dominant matter or pith and substance of the law must be determined 2) Once the matter is thus characterized, the second step is to determine if it falls under a head of power assigned to the enacting body: a. In this case, the enacting body is federal, and the Attorney General of Canada has decided to limit his arguments on the validity of the Act to a single head of jurisdiction: the criminal law power in s. 91(27) of the Constitution Act, 1867. b. Pith and substance: To determine which characterization is correct, one must consider the purpose and effect of the legislative scheme. One must ask, [w]hat in fact does the law do and why?:


a. While the Act employs both a penal and regulatory form, Parliament may validly employ regulations as part of a criminal law provided it targets a legitimate criminal law purpose. b. Here, the matter of the statutory scheme, viewed as a whole, is a valid exercise of the federal power over criminal law. The dominant purpose and effect of the legislative scheme is to prohibit practices that would undercut moral values, produce public health evils, and threaten the security of donors, donees, and persons conceived by assisted reproduction. While this initiative necessarily touches on provincial jurisdiction over medical research and practice, these fields are the subject of overlapping federal and provincial jurisdiction. Parliament has a strong interest in ensuring that basic moral standards govern the creation and destruction of life, as well as their impact on persons like donors and mothers. Overlapping with the morality concerns are concerns for public health and security which may be properly targeted by criminal law. These are valid criminal law purposes. c. The issue in such cases is to determine the dominant effect of the law. Viewed as a whole, the dominant effect of the Act is to prohibit a number of practices which Parliament considers immoral and/or which it considers a risk to health and security, not to promote the positive aspects of assisted reproduction. d. I conclude that the pith and substance of the Act is properly characterized as the prohibition of negative practices associated with assisted reproduction. c. Having characterized the matter to which the Act relates, the next question is whether it comes within the scope of the federal criminal law power under s. 91(27) of the Constitution Act, 1867. In order to answer this question, we must consider whether the matter satisfies the three requirements of valid criminal law: (1) a prohibition; (2) backed by a penalty; (3) with a criminal law purpose: a. As already discussed, the Act, properly characterized, imposes prohibitions backed by penalties, thereby fulfilling the first two requirements of a valid criminal law. Admittedly, some of the provisions permit exceptions. b. A criminal prohibition must serve a public purpose like [p]ublic peace, order, security, health, morality. It has been held that highway regulation bearing no relation to public safety falls beyond the scope of the federal criminal law power. Prohibitions aimed at combatting the public health evil of tobacco consumption have been found to fall within the ambit of the criminal law power, as have prohibitions directed at protecting the public from environmental hazards, dangerous and adulterated food and drug products, illicit drugs, and firearms. c. I turn now to consider the scope of the criminal law purposes that Parliament has identified. I conclude that upholding morality is the principal criminal law object of the Act. What is at stake is not merely two competing health schemes, but Parliaments power to enact general norms for the whole of Canada to meet the pressing moral concerns raised by the techniques of assisted reproduction. The objects of prohibiting public health evils and promoting security play supporting roles with respect to some provisions. Taken together, these objects confirm that the Act serves valid criminal law purposes. In reaching this conclusion, moreover, I do not intend to broaden the scope of the criminal law power, but rather apply this Courts jurisprudence. d. Morality: criminal law power includes laws designed for the promotion of public order, safety, or morals In summary, morality constitutes a valid criminal law purpose. e. Health: criminal laws for the protection of health must address a legitimate public health evil. Behind the diversity in the cases that have upheld criminal laws on the basis of public health evils lie three constant features. In each of these cases, the criminal law was grounded in (1) human conduct (2) that has an injurious or undesirable effect (3) on the health of members of the public. a. Parliament is entitled to use the criminal law power to safeguard the public from conduct that may have an injurious or undesirable effect on the health of members of the public, notwithstanding the provinces general right to regulate the medical profession. Health is subject to overlapping federal and provincial jurisdiction, and the provinces power to legislate in this field does not exclude Parliaments authority to target conduct that constitutes a public health evil f. Security: one of the most fundamental purposes of criminal law is the protection of personal security. This extends to life before birth; control over the termination of pregnancy. In the context of the federalism analysis, it suffices that the protection of vulnerable groups has been recognized as a valid criminal law purpose. g. Valid criminal law purpose: conclude that the Assisted Human Reproduction Act, viewed as a whole, is grounded in valid criminal law purposes. The Act seeks to avert serious damage to the fabric of


our society by prohibiting practices that tend to devalue human life and degrade participants. This is a valid criminal law purpose, grounded in issues that our society considers to be of fundamental importance. h. I conclude that the legislative scheme is not directed toward the promotion of positive health measures, but rather addresses legitimate criminal law objects. As discussed above, the other two elements of criminal law, prohibition and penalty, are established on the face of the Act. I therefore conclude that the Assisted Human Reproduction Act, viewed as a whole, is valid criminal legislation. b. The federalism analysis does not end merely because it has been determined that a law, viewed as a whole, is valid criminal legislation. Even if a law is in pith and substance criminal legislation, it may nevertheless contain provisions which are neither valid criminal prohibitions, nor ancillary to valid criminal prohibitions. a. Together with ss. 5 to 7, ss. 8 to 13 form a valid prohibition regime that is consistent with the objectives of the Act as a whole. Together with ss. 5 to 7, These provisions contain prohibitions, backed by penalties, and are directed in pith and substance to valid criminal law goals. Although some of the prohibitions impact on the regulation of medical research and practice, the impact is incidental to the legislations dominant criminal law purpose and limited to those ends. b. While not criminal law in pith and substance, the administrative, organizational, and enforcement provisions in ss. 14 to 68 are integrated into the prohibition regime set up by ss. 5 to 13. Some of these ancillary provisions are criminal in nature and do not significantly intrude on provincial powers. a. Furthermore, the provisions are designed to supplement, rather than exclude, provincial legislation. Finally, Parliament has a history of administering and enforcing statutes addressing issues of morality, health and security by way of licensing bodies. Since the ancillary provisions constitute a minor incursion on provincial jurisdiction, the rational and functional connection test should be applied to determine whether they are valid under the ancillary powers doctrine. c. Sections 14 to 68 support the legislative scheme in a way that is rational in purpose and functional in effect. Finally, s. 68 permits the Governor in Council to declare provisions of the Act inapplicable in a province where a provincial law contains similar provisions, pursuant to an agreement with that province. This provision recognizes the fact that assisted human reproduction is an area of overlapping jurisdiction, and allows provincial schemes to govern exclusively where provincial laws are equivalent to the federal scheme. The ancillary provisions are thus valid under the ancillary powers doctrine. e. Per LeBel, Deschamps, Abella and Rothstein JJ: a a. Sections 8 to 19, 40 to 53, 60, 61 and 68 of the Act exceed the legislative authority of the Parliament of Canada under the Constitution Act, 1867. The provisions of the Act concerning controlled activities, namely those involving assistance for human reproduction and related research activities, do not fall under the criminal law power, but belong to the jurisdiction of the provinces over hospitals, property and civil rights, and matters of a merely local nature. b. The first step of the constitutional analysis involves identifying the pith and substance (purpose and effec ts) of the impugned provisions a. In this case, the purpose and the effects of the impugned provisions relate to the regulation of a specific type of health services provided in health-care institutions by professionals to individuals who for pathological or physiological reasons need help to reproduce. Their pith and substance is the regulation of assisted human reproduction as a health service c. If the pith and substance of the provisions falls within the jurisdiction of the other level of government, it is necessary first to assess the extent of the overflow in light of the purpose of the provisions and to weigh their effects. a. A review of the effects of the provisions of the Act confirms that the impugned scheme seriously affects the practice of medicine and overlaps or conflicts with many Quebec statutes and regulations. The impugned provisions have a direct impact on the relationship between physicians called upon to use assisted reproductive technologies, donors, and patients. d. It must then be determined whether the provisions form part of an otherwise valid statute. a. The impugned provisions, viewed from the perspective of their pith and substance, are not connected with the federal criminal law power. The criminal law power does not give Parliament an unconditional right to take action to protect morality, safety and public health. To be connected with this federal head of power, a law or a provision must Rule: (1) suppress an evil, (2) establish a prohibition and (3) accompany that prohibition with a penalty. b. That purpose must also involve suppressing an evil or safeguarding a threatened interest. The evil must be real and the apprehension of harm must be reasonable.


c. A review of all the work of the Baird Commission and the evidence confirms that, where the impugned provisions are concerned, Parliaments action did not have the purpose of upholding morality and was not based on a reasoned apprehension of harm, but was instead intended to establish national standards for assisted human reproduction. e. Finally, the impugned provisions must be considered in the context of the entire statute in order to determine whether they are sufficiently integrated with the other provisions of the otherwise valid statute. a. The impugned provisions represent an overflow of the exercise of the federal criminal law power. Their pith and substance is connected with the provinces exclusive jurisdiction over hospitals, property and civil rights, and matters of a merely local nature. The impugned provisions affect rules with respect to the management of hospitals, since Parliament has provided that the Act applies to all premises in which controlled activities are undertaken f. This review must make it possible to establish a relationship between the extent of the jurisdictional overflow and the importance of the provisions themselves within the statute of which they form a part. There are two applicable concepts: functionality and necessity. a. Given the extent of the overflow in this case, it cannot be found that an ancillary power has been validly exercised unless the impugned provisions have a relationship of necessity with the rest of the statute. However, the scheme established by the prohibitory provisions does not depend on the existence of the regulatory scheme. b. It must be inferred from this that in setting up the regulatory scheme, Parliaments intention was to enact legislation in relation to a matter outside its jurisdiction. c. The provisions pursuant to which the Federal Agency is responsible for implementing the regulatory scheme are purely ancillary and have no independent purpose. They are invalid. d. Finally, if the principle of subsidiarity were to play a role in the case at bar, it would favour connecting the rules in question with the provinces jurisdiction over local matters, not with the criminal law power. f. Per Cromwell J.: The matter of the challenged provisions is best classified as relating to the establishment, maintenance and management of hospitals, property and civil rights in the province and matters of a merely local or private nature in the province. a. Sections 10, 11, 13, 14 to 18, 40(2), (3), (3.1), (4) and (5), and 44(2) and (3) exceed the legislative authority of the Parliament of Canada under the Constitution Act, 1867. b. However, ss. 8, 9 and 12 in purpose and effect prohibit negative practices associated with assisted reproduction and fall within the traditional ambit of the federal criminal law power. c. Similarly, ss. 40(1), (6) and (7), 41 to 43, and 44(1) and (4) set up the mechanisms to implement s. 12 and, to the extent that they relate to provisions of the Act which are constitutional d. Sections 45 to 53, to the extent that they deal with inspection and enforcement in relation to constitutionally valid provisions of the Act, are also properly enacted under the criminal law power. e. The same is true for ss. 60 and 61, which create offences. Section 68 is also constitutional, although its operation will be limited to constitutional sections of the Act. g. Held: the appeal should be allowed in part. Sections 8, 9, 12, 19 and 60 of the Act are constitutional. a. Sections 10, 11, 13, 14 to 18, 40(2), (3), (3.1), (4) and (5), and 44(2) and (3) exceed the legislative authority of the Parliament of Canada under the Constitution Act, 1867. a. 10,11,13: Certain provisions regarding controlled activities b. 14-18: Certain provisions regarding privacy and access to information c. 40(2), 40(3), 40(3.1), 40(4), 40(5), 44(2), 44(3): Certain provisions regarding administration b. Sections 40(1), (6) and (7), 41 to 43, 44(1) and (4), 45 to 53, 61 and 68 are constitutional to the extent that they relate to constitutionally valid provisions. III. HUMAN RIGHTS AND FREEDOMS A. LANGUAGE RIGHTS - ch. 56 1. Language in canada: distribution of powers over language and constitutional protections for minority languages 2. Distribution of powers over language: cases decided that language is not independent matter of legislation. there is no single plenary power to enact laws in relation to language, power is divided between 2 levels. a) Jones v. Attorney General of New Brunswick: Court upheld federal official languages Act, held law was authorized by federal power over fed govt (from peace order good govt power) Provisions concerning languages in fed ct, authorize by fed power over fed cts ,provisions in crim proceedings authorized by fed power over crim proc. Upheld section that allowed both official languages in courts, authorized by provincial power over administrative of justice in the power. b) Devine v. Quebec: Court held upheld provisions of Quebec charter of french language that regulated language of commerce. Challenged provisions were in relation to commerce w/n province which was a matter w/n prov jdx over property and civil rights in the province.


c) Division of legislative power over language, by denying to either level of govt of full power over language, constitutes an indirect protection of minority language rights. 3. Language of Constitution: sec 55 of Con Act 1982 directs Minister of Justice to prepare french version of English-only parts of Constitution. French not introduced in amendment process. Canada Act and Con Act 1982 enacted in both languages, Charter enacted in both. sect 57 Con Act states both versions of Act are equally authoritative. Fed statutes in both languages, b/c s. 133 Con Act 1867. a) Courts rule for discrepancies: where one language is doubtful or ambiguous and other is clear, the doubt or ambiguity is resolved by reference to the clear version. Meaning should be selected that is compatible w/ both versions. Meaning selected must be reasonable in context of statute. If one version gives better effect to purpose of statute, then choose that one. 4. Language of Statutes: a) Constitutional requirements: Sect 133 Con Act 1867 permits either English or French to be used in debates of House, and Quebec legislature, both languages in records and journals, statutes of fed and quebec to be printed in both languages. Manitoba also allows both in courts and legislature. Charter ss 16 to 23 language provisions, 17 to 19 apply to New Brunswick in same effect Thus: federal parliament, quebec, manitoba, and new brunswick legislatures subject to constitutional requirement that their statutes must be printed and published in both languages. b) Quebecs Charter of the French Language: Attorney General of Quebec v. Blaikie: Court struck down provisions of Quebecs charter of french language that purported to make french language of legislature. Act provided bills to be drafted and enacted only in french, french versions official, although english translation printed/published. Held provisions contravened s. 133. Not sufficient to produce unofficial english translation. S.133 requires statutes to be printed and published in both, meaning, enactment in both languages. (enactment? bilingual texts of both bills, amendments). c) Manitobas Official Languages Act: sect 23 allows french and english, to guarantee rights of french-speaking minorities. Text very similar to s. 133, all interpretation is same. In 1890 enacted Languages Act making English language only in records, journals pleadings, process, statutes only in English. Trying to repeal s. 23. Held invalid by county courts twice 1892, 1909, decisions not appealed nor reported, but disregarded. 3rd time held invalid 1976, again no appeal and refused to accept. 4th time 1978. French speaking plaintiff brought action seeking declaration of invalidity, lost, appealed, then AG of Manitoba appealed to Supreme Court. Attorney General of Manitoba v. Forest. adopted reasoning in Blaikie: s. 23 cannot be amended by unilateral action of legislature, official Act was unconstitutional. (1) Re Manitoba Language Rights: ruled on constitutional status of Manitoba statutes. Held failure to comply with s. 23 resulted in invalidity of purported statute. Nearly all laws passed in province were unconstitutional b/c in English only since 1890. Court declared province statutes to be deemed to have temporary force and effect for minimum period necessary for translation, re-enactment, printing and publication. Future laws must comply with s. 23 and have bilingual enactment. (a) Two stage procedure in statute for bilingual enactment: i) Enactment of a bill in English only ii) Preparation of a French translation of the bill, which on deposit in Legislature would have full legal effect. (b) Process dies not satisfy s. 23, must have simultaneous process of both languages to enact bills into laws. Unconstitutional. Also, procedure that in case of conflict, English prevailed over French also invalid b/s s. 23 required both to be equally authoritative. (c) Held: two stage process was unconstitutional. d) Incorporation by Reference: when a statute makes reference to another document, so to incorporate (adopt) the document as part of the statute, then general rule is that, if there is a constitutional requirement that the incorporating statute be in both languages, requirement will apply to incorporated document too. However, there could be bonafide reasons for exempting incorporated document. (1) Attorney General of Quebec v. Collier: two Q statutes fixed public sector wages and other terms of employment by reference to session papers. Statutes in both languages but session papers in french only. Held statutes unconstitutional by Court, session papers were integral party of statute, since in one language only, statutes were not enacted in both language as required by s . 133. (2) When statute refers to extrinsic document that is not essential to operation of statute, so that document is not an integral part of statute, there is no true incorporation and document would not be subject to the requirement of bilingual texts. (3) Exemption of document: R.v. Massia: challenge to fed govt property traffic regulations which applied on fed crown property (military bases), provided that drivers must observe law of the province in which crown property was situated. Regulations were in both languages. Ontario law was in english only. Accused convicted under regulations of driving car while license suspended on military base in Ontario challenged on basis it incorporated by reference law written in english only. Ct of App rejected - Ont law enacted by body that was not at time of enactment under obligation to produce bilingual texts, and although federal charge, Ont regulation capable of operating of its own force on fed crown property.


e) Delegated legislation: (1) Attorney General of Quebec v. Blaikie No 2: s. 133 both language requirement applied to delegated legislations as well as to statutes. Requirement of bilingual enactment on all kinds of delegated legislation. Quebec applied for rehearing to determine if some delegated legislations were exempt. Held regulations, although made by officials or bodies out side govt, were subject to approval of govt, subject to s. 133. (a) Regulations which neither made by govt nor subject to approval by govt were not. (b) By-laws of local municipalities and school boards not subject to s. 133, even though subject to gov approval. (c) Court rules of practice subject to 133, so are rules of administrative tribunals whose functions were quasi judicial. (2) Re Manitoba Language Rights: scope of s. 23 was same as scope of s. 133 Con Act. Meaning, Manitoba must reenact statutes that were in english only, and categories of delegated legislation that were defined in Blaikie 2. Orders in council? If clearly emanated from the govt. Any order in council that enacted a regulation would be covered by Blaikie 2. (3) Re Manitoba Language Rights No. 3: Held s. 23 applied to instruments of a legislative nature . 3 characteristics needed for bilingual enactment to be applied: 1) it would establish a rule of conduct 2) it would have the force of law and 3) it would be of general applicability rather than directed at specific individuals or situations. (4) Sinclair v. The Queen: issue: whether govt of Que could create a new municipality by the issue of letters patent in the french language only. Reasoned, purpose of s. 133 would be violated if structure and powers of local govt institutions could be ascertained only from a document that was not in English. Held, new municipality had not been validly established. 5. Language of Courts a) Constitutional Requirements: s. 133 gives choice to litigants of either language in fed courts and quebec courts. s. 23 gives similar requirement on manitoba courts . Charter 19(2) similar to new Brunswick. Attorney General of Quebec v. Blaikie: Quebecs charter of french language allowed french to be language of pleading and process except in certain defined circumstances. Held that it was not sufficient to give litigants option of using english in defined circumstances only. (133 gave english option in any proceeding). b) Definition of Courts: Courts covered by s. 133 Blaikie: courts of Quebec (w/ federally appointed judges), inferior courts (provincially appointed judges) and administrative tribunals established by statute that exercised adjudicative functions. c) Language of Process: MacDonald v. City of Montreal: (Beetz) english speaking Quebecer defended charge of speeding on ground that summons had been issued by Quebec court in french only. Court held that unilingual summons did not infringe s. 133, either of the 2 languages may be used in the process issuing from a Quebec court, issuing court has choice. Express provision of choice of process language in 133, made clear that court process need not be bilingual. Nor is the choice governed by recipients preference. 133 does not guarantee that the speaker, writer or issuer of proceedings will be understood in language of his choice by those he is addressing. (narrow and literal interpretation) (1) Dissent: 133 puts duty to accommodate both language speakers, and discharge this by having bilingual summons or even document w/ english explanations. d) Language of Proceedings: Societe des Acadiens v. Association of Parents: (Beetz): New Brunswick, s. 19(2) charter imposed on courts language requirement similar to s. 133. Acadiens claimed that 19(2) was breached when application made by the society in french to Ct of App, and heard by panel of 3 judges who were not able to understand french. Court held 19(2) did not confer french speaking litigant the right to be heard by a judge who understood french. Neither 133 or 19(2) conferred any guarantee that litigant will be understood and his language of choice. Language rights were based on political compromise, this distinguishes them from legal rights which are seminal in nature b.c they are rooted in principle. (1) Right to fair hearing protected by s. 7to 14 Charter and common law natural justice, would be offended if judge failed to comprehend evidence or argument. But fair hearing right was not a language right and not extended to those who spoke or understood neither official language. Not breached b/c judges incompetence in french had not been established as a matter of fact. (2) Dickson & Wilson: litigants right to either language impliedly included right to be understood in language of choice in the hearing of case. (3) Language rights, like other rights, must receive a liberal and purposive interpretation. Beetz restrictive holdings rejected later) e) Right to interpreter: s. 14 Charter gives right to party or witness who does not understand or speak language of proceeding , who is deaf, the right to an interpreter. Trial judge determines if need for interpreter met, showed on balance of probabilities. Duty of trial judge to take initiative in supplying interpreter to party who needs help but who through ignorance or timidity does not assert the right. Right applies to civil and criminal proceedings, administrative tribunal and courts. Similar right in 2(g) Bill of rights, but no deafness. (1) Common law right to interpreter which is possessed by any person who cannot speak or understand the language of proceedings where persons rights may be affected b/c failure to provide interpretation would be breach of rules of natural justice.


(2) Statutory right: for accused in criminal trial, b/c code requires accused person to be present in court during whole trial and an accused person is not present if she cannot understand what is going on. (3) R.v.Tran: accused from Vietnam, provided with an interpreter, who would translate everything immediately from English to vietnamese. Pattern broken when he was called to be a witness by defense. He would testify in english and then give a brief summary of his testimony in vietnamese, did this at end of direct and cross. Accused convicted. Appealed that right to interpreter under s. 14 violated. (a) Court held there was a breach of s. 14. Quality of interpreter had to meet standard of continuity, precision, impartiality, competence, and contemporaneousness. Standard has to be maintained during trial i) Continuity was not observed b/c of break in interpretation during defense evidence. No precision b/c little summaries did not convey everything said. Contemporaneousness also missing b./c interpretation was not contemporaneous w/ questions and answers given (b) Although lapse affected only one witness, that was enough to offend s. 14. Mere fact he was unable to follow some of the proceedings in which his vital interests were involved was itself prejudicial. (c) Held: new trial 6. Language of Government: a) Section 16 of the Charter: Charter s. 16 to 20 goes beyond legislative bodies and courts to govt. Eng and french are official languages of canada and new brunswick, quality of status, equal rights and privileges as to their use in all institutions of parliament and govt of canada and of new brunswick - probably not addressed to communications between govts and public. This applies to public servants as for their language of work. Language right are not limited, authorizes parliament and legislatures to create language rights above and beyond those conferred by constitution. b) Section 20 of the Charter: imposes an obligation on govt to provide bilingual services to the public. (1) DesRochers v. Canada: Court held that s. 20 should be given liberal and purposive interpretation. This requires that when s. 20 applies, the principle of equality of both official languages that is guaranteed by s. 16(1) must be respected. Services of equal quality in both languages must be provided. Equality means substantive equality not formal equality. Concluded - although fewer french speakers than english were taking advantage of program, the french community was receiving equal benefits from the program. (2) Federal jurisdiction: obligation attaches to any head or central office. Attaches to other federal govt offices only where either a) there is a significant demand for bilingual services from that office, or b) due to the nature of the office, it is reasonable that bilingual services be provided by that office. (3) New Brunswick: obligation to provide bilingual services attaches to any office of an institution of the legislature or govt of NB. NB govt has agreement with RCMP - where RCMP provides provincial police services in the province. (4) Societe des Acadiens v. Canada: plaintiff french speaking resident of NB, received speeding ticket from RCMP officer who spoke in English only. Paid fine but brought proceeding that by s. 20(2) se was entitled to receive police services in french language. Court held when providing provincial police services under contract to a province, RCMP was also provincial institution, which meant that in NB< when force was providing prov police powers, the force was subject to s. 20(2). Thus, P in NB was entitled to communications in french from the RCMP officer who gave her the ticket, regardless of the demand for or reasonableness of french language services. (5) 9 other provinces have no obligation to provide govt services in both languages, although some provinces by practice do. 7. Language of Commerce: Ford v. Quebec: Court struck down provisions of Que charter of French Language that required commercial signs and advertisements to be in French only. Court held that freedom of expression included freedom to express in language of ones choice. Prohibition was breach of freedom of expression. Ads and commercial signs was disproportionately severe measure that could not be saved under s .1, therefore, invalid. a) Devine v. Quebec: Court held other provisions of Que charter of French Language that required non exclusive french in brochures, orders, invoices, and other business documents offended freedom of expression, even though no prohibition on english. Freedom consists in absence of compulsion and absence of restraint. Held, s. 1 saved non exclusive requirements. Provisions upheld. 8. Language of Education: a) Section 93 of Constitution Act, 1867: sec 93 Con Act 1867 confers on prov Legislatures power to make laws in relation to education, but prohibits from affecting rights with respect to denominational schools existing by law at the time of confederation. Prov Leg have power to prescribe the language of instruction in the schools. However, 93 prohibits prov Leg from prejudicially affecting any right or privilege w/ respect to denominational schools which any class of persons have by law in the province at the union. (Translation: if language was right of denominational school, in a prov at time of confederation, then prov would be disabled from compelling the denominational schools to instruct in a different language: b) Mackell case: whether language rights are guaranteed to denomination schools of part prov depends upon analysis of legal position of denominational schools in the prov at time of confederation. Ottawa Roman Catholic Separate School Trustees v.


Mackell: Privy council held Ontario had power to require that English be the language of instruction in hitherto French speaking roman catholic separate schools in prov. Statute at time of confederation did not confer upon the schools legal right to use French as language of instruction. Since no right existed at confederation, no right was preserved by s. 93. (1) Sec 93 reserves rights w/ respect to denominational schools of a class of persons and held that class of persons in 93 meant class of persons determined according to religious belief and not according to race or religion. (2) Conclusion: s. 93 would preserve from legislative change the language of instruction in denominational schools if it could be established that trustees of those schools had at the time of confederation (admission) a legal right to choose the language of instruction in their schools. c) Section 23 of the Charter: gives english speaking minority in quebec or french speaking minority in other provinces the right to have their children receive primary and secondary school instruction in the minority language in that province. Applies to denominational and non denomination schools to parents who fit one of three categories: 1) mother tongue of parent, 2) the language of primary school instruction in Canada of the parent, 3) language of instruction in Canada of one child of the parent (see below) (1) Mother tongue of parent: whose language learned and still understood is that of english or french linguistic minority population of the province. (In Ontario, ) parents language is french, and 2) still understood in that province). Does not apply to those whose mother tongue is neither english nor french. (a) Applies to English speaker in Quebec. by virtue of s. 59 of Constitution, paragraph does not apply to Q until legislative assembly decides to adopt it. Exemption added in recognition of fact that Q alone of provinces did not join constitutional agreement, since this clause was most controversial, decision made to exempt Q until Q itself decided that it was willing to be bound. Effect: English speaking parents in Q have no right to send their children to English speaking schools unless they fit 2nd or 3rd category of parent under s. 23. (English speaking, went to school out of Can, no other kid in English school in Can = no right) (2) Language of instruction of parent in Canada: known as Canada clause b/c canadian citizens who move from one province to another retain the right to have their kids educated in same language as parent was, anywhere in Canada. Q is not exempt here (a) Attorney General of Quebec v. Quebec Protestant School Board: Court held that quebec clause which excluded kids of persons who were educated in english in provinces other than quebec, was in conflict with canada clause (23(1)(b)) of Charter. Therefore, quebec clause had to yield to canada clause and school boards in Q were obligted to admit to English language schools the children of parents who had been educated in english anywhere in Canada. (3) Language of instruction of child in Canada: if have one child who received education in eng/french, have right to have all children receive schooling in that language. Quebec is not exempted from this clause. Encourages mobility w/n canada by guaranteeing continuity of childs minority education language. (a) Solski v. Quebec: Held that Quebec law that allowed for admission to english school only if other childs major part of education was in english was consistent with s. 23 w/o resorting to s. 1. Major part requirement would be inconsistent if it called for quantitative measurement of the proportion of time spent by the child in English language instruction in Canada. Held that requirement read down to a qualitative restrictionw which only requires significant part, not necessarily major part. Constitutional. d) Where numbers warrant: the right to minority language in 3 categories above is not absolute. Right includes where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds. (1) Mahe v. Alberta: Held that effects of paragraphs a) b) of subsection 3 of s. 23 was to establish a sliding scale of entitlement based on number of children whose parents qualify under s. 23 At one end, number of children might be so small that threshold of a) would not be crossed and no program of minority language instruction would be required. End of scale, number of children might be so large that b) requirement of minority language facilities would require the establishment of a minority school board. s. 23 guarantees whatever type of rights and services is appropriate to provide for minority language instruction for number of students involved. (a) Here s. 23 was in end of high scale. Edmonton had 4,000 children whose parents had s. 23 rights and there was a french school in operation with 242 children and space for another 480. Sole question was entitlement of s. 23 parents to powers of management and control over childrens french language education. Degree of management and control required could include minority school board, but court said evidence on number of students not sufficient to establish independent french school board. (b) Numbers did warrant a guaranteed number of french representatives on the school board that operated the existing french language school. Those reps should be given exclusive control over french instruction, expenditure of funds, appointment of admins teachers, design of programs


(2) Re Public Schools Act (Man.): Court struck down Manitobas legislation respecting french language schools b/s no provision for the parents of french language students to have management and control over french language education. Est. 5,617 min french students. Held number warranted established an independent french language school board in manitoba under exl management and control of french language minority. (3) Arsenault-Cameron v. Prince Edward Island: issue whether the where-numbers-warrant test in s. 23 mandated french language school in community as french speaking parents insisted or whether it was sufficient to provide bus service to an existing french language school 28 km away as Minister of education provided. Only 49 willing to register for new school. Held that if school made, demands would rise. Relevant number was somewhere between known demand and the number of persons who could potentially take advantage of the service. Meant that the relevant number was more than 49, b/c number of kids who could potentially take advantage of the school was 155. Held that the flourishing and preservation of french language minority, which was purpose under s. 23 Charter best pursued by establishment if french school in community. Ordered school established e) Denominational school: Held that nondenominational schools were not prejudiced, were merely regulated by the vesting of some exclusive powers of management and control in trustees who represented french speaking parents. f) Supervision of remedial orders: breach of 23 may be remedied under 24(1) Charter - authorizes court to award remedy as court considers appropriate and just in circumstances. (1) Doucet-Boudreau v. Nova Scotia: judge ordered five schools be built and that programs of instruction be developed for each school. Stipulated dates, and curriculum. Held series of reporting hearings throughout period of construction of schools at which govt required to file affidavits as to progress of work, parents were permitted to file affidavits of rebuttal, all subject to cross exam. First time canadian court made provision for judicial supervision. Appealed. Court upheld supervision. - dangers of assimilation of french speaking majority in province, past delays in developing schools. Supervisory was just and proper, thus, valid. Dissent: in unlikely even of non compliance parents can get a contempt order, no need to supervise. Court moved outside adjudicative role and into outside expertise (curriculum, building of schools). B. ABORIGINAL AND TREATY RIGHTS - Ch. 28 1. Federal legislative power a) Section 91(24): confers upon fed parliament to make laws in relation to indians and lands reserved for Indians. Main purpose was for protection of aboriginal peoples against local settlers and to maintain uniform national policies respecting the Indians. 2 heads of power in section - indians and power over lands reserved for indians (exercised in respect to non indians too) b) Indians: aboriginal peoples. Indian Act: persons w/n statutory definition of indian act are known as status indians. There are also unstatus Indians. Metis are french canadian men married to Indian women, are indians but not w/n status group. Inuit, and Eskimo also out side of status group although are Indians = non status indians, metis, inuit not governed by Indian Act. (1) Can make laws on succession to the property after decease, mentally ill. Validity depends on whether pitch and substance in relation to Indians or in relation to succession, property, or education. (2) Law will be upheld if could rationally be related to intelligible Indian policies even if the laws would ordinarily be outside federal competence. Laws in relation to Indian property and education has been justified as aiming indian concerns. c) Lands reserved for the Indians: section 91(24) by its second branch confers on federal parliament legislative power over lands reserved for the indians. Includes land reserved under royal proclamation - that is, w/n territory covered by proclamation that was in the possession of indians and that had not been ceded to the Crown. (1) Delgamuukw v. British Columbia: court held that phrase extends to all lands held pursuant to aboriginal title. (2) St. Catherines Milling case: privy council held lands reserved were not among property transferred to the dominion. If indians surrender land, which they can only to the crown, then full title to lands is assumed by province, not dominion. d) Canadian bill of rights: applies only to federal laws, 1(b) forbids discrimination of race, guarantees equality. use of Indian in Indian act seems to offend this, yet its also in s. 91(24) Con Act 1867. R.v.Drybones: Court held use of racial classification Indian in s. 94 of Indian Act, which made it an offense for an Indian to be intoxication off a reserve, violated equality guaranteed by the Bill. e) Charter of rights: s. 15 contains equality rights. Indian Act not yet challenged for indian classification, might find exceptions to it under 15(2) or 1, or under clause for aboriginal treaty. (1) Ermineskin Indian band and Nation v. Canada: special constitutional status of indians ignored by Court in s. 15 challenge by indian bands to the investment provisions of Indian Act which precluded external investment of Indian funds held by Crown. However, Court rejected challenge on ground that the restrictions entailed prudent investment practices that were not discriminatory.


(2) Indian Act is vulnerable to attack that it offends s. 15. Corbiere v. Canada: Court struck down provision of Indian Act that made residence on reserve a requirement for voting elections. Held that distinction between indians who lived on reserve (and could vote) and who lived off reserve (could not vote) was breach of s. 15 (3) Lovelace v. Ontario: Court rejected challenge to distribution of Casino Rama gambling profits that was limited to communities registered as bands under Indian act. Could held the exclusion of non status bands from the distribution of the profits was not a breach of s. 15 f) Treaties: general rule, treaties have no effect on internal law of canada unless they are implemented by legislation. Although treaty entered into w/ US exempted Indians from paying duty at customs, Court held customs duties were still payable by Indians b/c Customs Act did not include agreed upon exemption. (1) Treaties could not stand against inconsistent federal legislation. Treaty guaranteed tribes their right to hunt for food at any time, Court held indians were still prohibited by federal law from shooting migratory birds out of season b/c migration bids convention act did not include agreed upon exemption. (2) Sect 35 of Con Act 1982 now gives protection to rights created by treaties w/ indian tribunes and to rights created by international treaties. Operates as a limitation on federal powers and provincial legislatures. 2. Provincial legislative power: a) Application of provincial laws: general rule, provincial laws apply to indians and lands reserved for indians. (1) R.v.Hill: Ont Ct App held that a provincial law confining the practice of medicine to qualified physicians applied to indians (convicted of offense of unauthorized practice of law) Offense did not take place on reserve but result would have been same if it had. (2) Four B Manufacturing v. United Garment Workers: Court held provincial labor law applied to a show manufacturing business, which was located on a reserve, which was owned (through corp) by indians, which employed mainly indians, and which had been funded by department of indian affairs. (3) R.v. Francis: provincial traffic laws applied to indian driving a vehicle on indian reserves. (4) Paul v. British Columbia: BCs forest practices act applied to an indian who had been cutting timber in breach of prohibition of the act. Indian act did not need to make the act applicable. (5) Prov have power to make their laws applicable to indians and indian reserves, so long as they are in relation to matter coming w/n prov head of power. No different from aliens, banks, federally incorporated companies, interprovincial takings all are subjects of federal power but have to pay prov taxes and obey prov traffic laws, health and safety requirements. (6) Four B and Francis show: there is no distinction between Indians and lands reserved for the indians and that prov laws may apply to both subject matters of 91(24) - the two branches b) Five exceptions to general rule that provincial laws apply to Indians and land reserved for the Indians: (1) Singling out: prov law that singled out Indians or Indian reserves for special treatment would run the risk of being classified as a law in relation to Indian or Indian reserves, if so, law would be invalid. (2) Indianness: a prov law that affects an integral part of primary federal jdx over Indians and lands reserved for the Indians will be inapplicable to Indians and lands reserved for the indians (even though its a law of general application). Includes, laws that impair status or capacity of indians, affect indanness. Analogy in the immunity from prov laws that impair a vital part of undertakings w/n fed jdx. Exception means, prov laws cannot affect aboriginal rights or treaty rights. (a) Natural Parents v. Superintendent of Child Welfare: court held, while provincial adoption law would permit white parents to adopt an indian child, prov law had to be read down as not to deprive child of his indian status. Prov laws cannot affect the right to possession of land on an indian reserve, and cannot affect at lease some sues of land on reserve (hunting). (b) Lovelace v. Ontario: Challenged prov program that sent profits from casino located on Indian reserve to other first nation communities. Brought by non status communities who were excuded from program, argued that prov strayd into fed jdx b defining communities as first nations for program. Court held that a prov spending program that used the definitions of Indian Act to prescribe its scope did not impair status or capacity of non-status Indians, did not impair any aboriginal or treaty right, and consequently did not affect Indianness. Program was upheld. Challenge based on equality guarantee of s. 15 rejected. (c) Kitkatla Band v. British Columbia: indianness exception relied on to challenge provision of BC heritage conservation act that conferred a discretion on the responsible minister to license the destructions of heritage property. Argument that licensing of destruction of aboriginal heritage property impaired status or capacity of aboriginal people b/c artifacts were at core of indianess. Court rejected, held that Act was valid exercise of provincial power over property and civil rights in province. Purpose of Act was to protect heritage property, including aboriginal. Held aboriginal people had not established any aboriginal right or title to culturally modified trees which were on crown land and despite cultural significance of trees, the application of the Act to the trees did not affect Indianness.


(d) Paul v. British Columbia: forest appeals commissions of BC, an admin tribunal, established under prov law, trying a contravention of provinces Forest Practices Code. Defendant indian claimed he was exercising aboriginal right when he cut down trees in prov forest in violation of code. Argued tribunal had no jdx over his case once aboriginal right in issue. i) Court rejected argument that prov could not admin tribunal to make ruling of existence/applicability of aboriginal right. Provinces could not legislate, extinguish or alter aboriginal rights, and could not confer on admin tribunal power to extinguish or alter aboriginal rights. It could only determine whether a claimed right existed. ii) Determination would be binding but would not be a precedent that would binding on other tribunals, courts and it would be subject to judicial review by superior court on standard of correctness. iii) Thus, jdx of commission would extend to determination of a claim of aboriginal right w/o effect on Inianness. iv) Held: commission should proceed to determine whether cutting down trees was valid exercise of aboriginal right. (3) Paramountcy: if a prov law is inconsistent with a provision of the indian act (or other fed law), the prov law is rendered inoperative by the doctrine of federal paramountcy. (4) Natural resources agreement: the right of indians to take game and fish for good, which is defined and protected in three provinces by this agreement. Prov laws cannot deprive of this right. (5) Section 35: aboriginal and treaty rights in Con Act 1982 s. 35 protect. It applies to federal laws and prov laws. Also s. 88 of Indian Act that expressly provides prov laws of general application must yield to terms of any treaty. Even before 1982, aboriginal rights were not vulnerable to prov laws b/c of indianness exception. 3. Section 88 Indian Act: a) Provincial laws of general application apply to indians, extends to indians on a reserve. Operates as federal adoption, or incorporation by reference, of prov laws making the prov laws applicable as part of federal laws. b) Laws of general application: this excludes prov laws that single out indians for special treatment. Court held that s 88 did not make prov laws affecting indianness applicable to indians. This made s 88 only declaratory and did not expand body of provincial law that applied to indians. (1) Dick v. The Queen: held that s 88 only applied to prov laws that affected indianness, by impairing status of indians. These were the only laws to which 88 applied. (traffic legislation, applied to indians of their own force). S. 88 is not declaratory, but expands body of prov law that is applicable to indians. Prov laws of general applicability can infringe aboriginal rights. But 88 does not so far as to enable prov laws of general application to extinguish aboriginal rights b/c 88 does not evince requisite clear and plain intent to extinguish aboriginal rights. Prov laws not affecting indianness which do not apply to indians of their own force are not caught in s. 88 c) Paramountcy exception: paramountcy applies to prov laws of general application, conflict between fed and prov law of general applicability resolved in favor of fed law. Prov law of general application which makes provision for any matter for which provision is made by indian act must yield to the provisions of the indian act. Paramountcy applies where there is an express contradiction btn fed and prov law, not if both laws cover same matters. 88 will render inapplicable laws of general application which are not in direct conflict w/ the indian act. (1) This expansion of paramountcy is an exception to s. 88. Since 88 applies to those prov laws that affect indianness, It is only those laws that are subject to wider paramountcy rule. Prov laws that di not affect indianness are not caught in s. 88 and not affected by exception in s. 88 (2) Prov laws that do not affect indianes, apply to indians of their own force, not through s. 88, and they are subject to ordinary rule of paramountcy, not expanded rule of s. 88 d) Treaty exception: any conflict between treaty made with indians and prov law of general application has to be resolved in favor of the treaty provision. Under Dick s. 88 does not apply to prov laws that do not affect indianness, therefore 88 would not confer on indian treaties paramountcy over prov laws that do not affect indianness. S. 88 shields indian treaties from all prov laws. 4. Natural Resources Agreement: limitation on prov competence to make laws applicable to indians by this agreement entered into by canada and three prairie provinces, have constitutional status by amendment to constitution. In Alberta, Saskatchewan, Manitoba, indians are guaranteed right to take game and fish for food at all seasons of the year on the specified lands. Prov laws contrary are inapplicable to indians. (hunt game and fish for good, during all seasons) a) For food restriction on hunting and fishing rights. Indians in prairies, had right to hunt and fish for commercial purposes as well as for good, had their rights cut down by the Agreements. b) R.v.Horseman: held that albertas indian treaty right to hunt commercially, which had been conferred in treat 8, had been merged and consolidated in clause 12 of the alberta agreement and rights were now those specified in agreement. Means = indian treaty rights had been partially extinguished by a constitutional amendment enacted w/o the consent of the indians who were not consulted on terms of natural resources agreement.


5. Aboriginal rights: a) Recognition of aboriginal rights: sec 35 Con act 82 gives constitutional protection to existing aboriginal and treaty rights of aboriginal peoples in canada. Aboriginal rights that have not been extinguished are recognized by the common law and are enforceable by the courts. (1) Guerin v. The Queen: title is a legal right derived from indians historic occupation and possession of their tribunal lands. Facts: band had surrendered land to crown to enable crown to lease it to a golf club. Crown leased it but on terms less favorable than those agreed to by Band. Court held that aboriginal title to land gave rise to a fiduciary duty on part of Crown to deal w/ the land for the benefit of surrendering indians. Held, fiduciary duty was broken, damages to Band. (2) R,v. Sparrow: recognized aboriginal right to fish for salmon in fraser river. D charged w/ violating federal fisheries Act. Held s 53 provided constitutional protection for aboriginal right. All dealings w/ aboriginal peoples (including legislation), the govt has responsibility to act in fiduciary capacity (3) Cases recognize right at common law, fiduciary duty. Sparrow decides that right is constitutionally protected under s. 35 b) Definition of aboriginal rights: rights held by aboriginal peoples by reason of the fact that they were once independent, self governing entities in possession of most of the lands now making up canada. Special legal status b/c they were already here living in communities, this distinguishes from other minority groups in canada. (1) **R.v.Van der Peet: Legal Test to identify an existing aboriginal right w/n s. 25: activity must be an element of a practice, custom, or traditional integral to the distinctive culture of the aboriginal group asserting the right. To be integral, practice must be of central significance to aboriginal society: must be defining characteristics of the society, one of the things that made the culture of the society distinctive. The practice must have developed before contact, practice can evolve but into a modern form that can be traced to its origins back to pre contact period. (a) Facts: d convicted of selling fish that she caught under authority of Indian food fish license. (b) Issue: whether the defendant had an aboriginal right to sell fish. (c) Held: unlike practice of fishing for food, practice of selling fish was not an integral; part of Sto:lo culture. It was only after contract that these people begun fishing to supply for market, created by European demand. Thus, D was unsuccessful in establishing aboriginal right to sell fish, was properly convicted. (2) R.v.N.T.C Smokehouse: practice of exchanging fish was not sufficiently central to aboriginal culture to qualify as an aboriginal right. (3) R.v.Gladstone: (right alleged: sell herring spawn on kept). Before contact, Heiltsuk people habitually sold large quantities of herring spawn on kept to other tribies. Trade in herring spawn on kept was a central and defining feature of Heiltsuk society (4) Mitchell v. Minister of National Revenue: Court rejected claim of Mohawk people of Akwesane to an aboriginal right bring foods purchased in US across St. Lawrence river into canada w/o paying customs duty. Evidence did not establish precontract trade by Mohawk. The occasions of trade were few an far between, it was not a practice integral to the distinctive culture of Mohawk people. (a) Concurrence: trade was only occasional and not integral to mohawk culture. Such a right would be incompatible w/ crown sovereignty. Control over the movement of people and goods into a country was a fundamental attribute of sovereignty, aboriginal right to bring in goods free was incompatible w/ that sovereignty. (5) R.v. Sappier; Practice for survival before contact, Maliset and Mikmaq Indians were migratory people living from hunting and fishing over large territory using rivers of eastern canada for transportation, would harvest wood for building temporary shelters and other uses (canoes, tools, firewood). Charged w/ unauthorized possession of crown timber in NB (offense) (a)Issue: did this evolve into modern right to cut truckload of timber on crown lands and use it for building home? (b) Held: harvesting of wood for domestic uses was integral to distinctive culture of Maliset and Mikmaq people, immaterial that it had developed as a necessity of survival. Pre-contact practice of harvesting wood for construction of temporary shelters had evolved into modern right to harvest wood by modern means for construction of permanent dwellings. Successful in establishing aboriginal right, acquitted. (6) Metis rights after contact: definition of aboriginal rights from R.v.Van der Peet based on pre contract. This does not work for Metis b/c they originated from inter-marriage of French Canadian men and Indian women during fur trade period, did not exist before contact (a) R.v. Powley: Could held that for Metis claiming aboriginal rights, focus on contact had to be moved forward, to the time of effective european control. Other than time shift, Van der Peet definition is used to define Metis rights.


i) Facts: two metis claimed aboriginal right to hunt for good in Sault Ste. Marie area of Ontario. Practice of hunting for food was integral to culture of historic community. Since Metis claimants were members of modern community, and traced their ancestry back to pre-control community, they were entitled to aboriginal title of hunting for good in the area. c) Aboriginal self government: right to self govt exists by virtue of fact that they were living in self governing communities before contact. (1) R.v.Pamajewon: Court rejected claim by two first nations groups to conduct high stakes gambling on their reserves, claimed to be exercised according to right to self govt. Held that self governing claims must be resolved by Van der Peet test. While it was showed that O people gambled before contact, it was informal and small scale and never a means by which communities were sustained. Concluded, before contact gambling was not an integral part of distinctive first nations culture, therefore, no aboriginal right to regulate gambling. Ds were convicted of breaching the gaming provisions of the criminal code. (a) Aboriginal right to self govt extends only to activities that took place before European contact and then only to those activities that were an integral part of aboriginal society. (2) Whether fed/prov laws apply to inconsistent aboriginal law is separate question from extent of self govt, if court decided that aboriginal law authorized gambling regulation, would have to apply Sparrow test (paramountcy question): if criminal code satisfies test, then code provision should prevail, if not, aboriginal law should prevail. (3) Delgamuukw v. British Columbia: aboriginals brought proceedings for declaration that they had aboriginal title and self govt rights over territory in north BC. Court did not grant, but gave a new trial. Aboriginal title relevance: 1) land held under aboriginal title is held communally and decisions w/ respect to land are made by that community. 2) title encompasses right to choose to what uses land can be put. These characteristics imply role for laws and customs as to how the land is to be shared by the members of the community, how the land is to be managed, and how the land is to be developed. d) Aboriginal title: title is right to exclusive occupation of land which permits various uses of land. Case - May be able to fish and hunt even if no title in land - had to still satisfy Van der Peet test by showing that practices of fishing in that location had arisen before contact. Since 1982 Con Act s. 35, aboriginal title is protected constitutionally. Rights recognized in Royal Proclamation 1763. Treaties entered into for aboriginals to give up lands, except in BC, gave up w/o treaties. Now litigating to determine rights, (1) Degamuukw v. BC: aboriginals brought proceedings for declaration that they had aboriginal title and self govt rights over territory in north BC. (a) Court laid down rules of evidence and substance that would govern new trial that was ordered: i) Title proved by showing that aboriginal people occupied the land prior to sovereignty. The mere fact of this pre sovereignty occupation is sufficient to show that land is central significance to culture of claimants. Separate centrality requirement of Van der Peet does not have to be separately established. ii) Occupation must be exclusive. iii) Point of time to show occupation must be prior to sovereignty, not prior to contact (time of contact is earlier so this relaxes Van der Peet) b/c proof of title flows from fact that aboriginal title is burden on crowns underlying title, and its crowns title came into existence when sovereignty was assumed by crown. iv) If present occupation relied on, then necessary to show a continuity btn present and pre sovereignty occupation. So long as there was a substantial maintenance of connection, requirement of continuity is satisfied. v) Proof of pre sovereignty occupation: admission of oral histories handed down generations, to prove (although hearsay, must adapt rules to pre sovereign times) otherwise proof is impossible b/c no written records. (b) Aboriginal title is sui generis: one of a kind. Differences in aboriginal and non aboriginal title. There are 5 differences: i) Source of aboriginal title, which comes from pre sovereignty occupation ii) Range of uses for land - title gives exclusive use and occupation of land (not limited to traditionally carried, or integral to culture) Limitation: uses must not be irreconcilable with the nature of the attachment to the land which forms the basis of the particular groups aboriginal title. (land used for hunting cannot be converted to strip mining) - compare to fee simple. iii) Aboriginal title is inalieable except to the crown. Doctrine of inaliebaility requires crown has to act as an intermediary between aboriginal owners and third parties. To pass title to 3rd party, aboriginal has to first surrender land to crown, crown under fiduciary duty to deal w/ land in best interests of surrendering people (adequate compensation) and prevent unfair dealing. Also a limitation on land, if land used in a way that title does not allow. Could use it for such things by surrendering land and then converted back as fee simple.


iv) Aboriginal title can only be held communally. Cannot be held by individual persons, its a collective right held by all members of an aboriginal nation. Decisions w/ respect to the land are made by community not individual owner as would be the case w/ fee simple v) Aboriginal title has constitutionally protected. Before 1982 title could not be extinguished by prov laws b/c conflicted w/ fed power over Indians. Before 82, title could be extinguished by fed law but only if it showed clear and plain intention to extinguish. s. 35 in 1983 confers protection on any land that was existing in 1982. Not absolute right, but requires that any infringement must be enacted by legislative body, and satisfy Sparrow test of justification: (1) Prior consultation w/ aboriginal owners before any of the incidents of their title was impaired as well as fair compensation for any impairment e) Extinguishment of aboriginal rights: (1) Aboriginal rights And aboriginal title can be extinguished in 2 ways: (a) By surrender: must be 1) voluntary, AND 2) to the crown (b) Constitutional amendment: it would be breach of crowns fiduciary duty to aboriginal people to proceed w/ constitutional amendment affecting aboriginal rights w/o at least the active participation of the affected aboriginal people (c) Before 1982 - Legislation: this power was removed in 1982 s. 35, permits regulation by federal law that satisfied strict standards of justification, but does not permit extinguishment of aboriginal and treaty rights (2) Will not be inferred, must be clear and plain intention to extinguish (Sparrow) 6. Treaty rights: Before 1982, rights protected by prov (not fed) law by s. 88 Indian Act. After 1982, s. 35 protects them from both. a) History: treaties entered into to give hunting, fishing rights, in return for peace, at early stage of settlement. 11 treaties entered into for Ontario, and prairie provinces. Many areas of Canada left where no treaties entered into. (1) After the Calder case recognized rights, govt of canada went back into treaty making. Modern treaties w/ inuit of nunavut, yukon, northwest, BC. Land claims agreements reserve large area of land to aboriginal signatories as well as considerable sums of money in return for the surrender of aboriginal rights over non settlement land. Codes w/ respect to uses of land assure continuing role to aboriginals in management of resources of entire region covered by agreement. b) Definition of treaty: Not a contract, not international law. I (1) t is an agreement btn crown and aboriginal nation w/ following characteristics: (a) Parties: crown, aboriginal nation (b) Agency: authority to bind principals, crown and aboriginal nation (c) Intention to create legal relations (d) Consideration: obligations assumed by both sides (e) Formality: must be a certain measure of solemnity (2) Both cases make clear that surrender of aboriginal rights is not a requirement of valid treaty. Treaties did not involve cession in land, in Sioui land was not even their traditional territory. Nor does treaty have to be concerned w/ territory, it can be political or social. For interpretation, resolve any doubts in favor of indians. (a) Simon v. The Queen: whether legal recognition should be given to a peace and friendship treaty. Document purported to guarantee indians free liberty of hunting and fishing in treaty area. Held it was a valid treaty by s. 88 Indian act. (b) R.v.Sioui: document signed y governor of Q and chief, to make peace, allowing free exercise of religion, customs, liberty of trading w/ english. Held, valid treaty by virtue of s. 88 Indian act. Held: we should adopt a broad and generous interpretation of what constitutes a treaty. And examine preliminary question of the capacity to sign a treaty. c) Interpretation of treaty rights: should be liberally construed and doubtful expressions resolved in favor of the indians. Reason: unequal bargaining power of the crown and aboriginals. Representatives of crown typically create written text and written records of negotiations, and those often differed from or did not fully express indians oral understandings of the arrangement. (1) R.v.Marshall: whether D, charged w/ fishing for eels and selling eels, w/o a license had a treaty right to catch/sell eels. Applicable treaty was peace treaty entered into by governor of NS and Chief. Treaty said nothing about fishing, only that indians would no longer trade any commodities in any manner except w/ managers of truck houses. (truck house = govt trading post) (a) Held: clause should be interpreted as conferring a right to hunt, fish, gather, b/c only by hunting, fishing, and gathering, indians would be in a position to bring commodities to the truck house. Also interpreted to include right to trade these to make livelihood. Right to trade persisted after abolition of truck houses.Rights prevailed over statutory licensing regime that d had not complied w/. Entitled to acquittal. (b) Aboriginal treaty right over commercial expoitation of most of the natural resources in BS and NB.


(2) Marshall 2: charged w/ offending the forest management laws of the 2 provinces, and they invoked the truck house clause in defense. Logging, argued, was modern use of same products and there fore traded (historically, canoes, sleds, snowshoes, baskets) (3) Marshall 3: while modern eel fishing was the logical evolution of a traditional trading activity, the same case could not be made for logging. Logging was not traditional, cannot be characterized as modern evolution of minor trade in wood products that took place at time of treaty. Ds had no right to cut down trees for commercial purposes w/o a license. (4) R.v. Morris: treaty made by governor of colony in Vancouver island. In exchange for surrender, crown promised that indians would be at liberty to hunt over the unoccupied lands of the island as formerly. Facts: 2 members hunted in traditional territory at night, driving truck, using spot light to identify game and rift to shoot. Charged w/ offenses under BC wildlife act that prohibited hunting at night w/ a spotlight. Defense was treaty in 1852. Held: the practice was protected by the treaty. Historic hunting practices used in modern ways do not change character of the practice. Dissent: modern rifle hunting at night different and more dangerous than it was in 1852. Treaty should not be interpreted as protecting inherently dangerous activity, prohibition of night hunting was consistent w/ treaty. (interpretation does not expand right). d) Extinguishment of treaty rights: two ways - 1) voluntary surrender to Crown, 2) constitutional amendment. Before 1982 there was 3) legislation-but ended w/ s. 35. Must have clear and plain intention to extinguish must be established. If treaty has provision for its own amendment or appeal, that can be followed. Treaty could be voidable if a fundamental breach by one of the parties. Without competent legislation (before 1982) treaty cannot be extinguished w/o the consent of the indians concerned. 7. The need for constitutional protection: a) Four infirmities (1) Uncertainty as to legal status of rights (2) Doctrine of parliamentary sovereignty - meaning rights were vulnerable to abolition (3) Liberal idea of equality (Bill & Charter) (4) Rights could be modified or extinguished by constitutional amendment, w/o involvement of aboriginals. b) ss. 35 (recognizes, affirms), 25(does not derogate from aboriginal treaty or other rights), and 35.1(no amendments w/o consultation w/ representatives) reinforce 91(24) in recognition of special status of aboriginals. 8. Section 35: rights conferred are not qualified by s. 1 (not subject to reasonable limits as can be justified in a free and democratic society). Also not subject to legislative override under s. 33. Carries disadvantage that rights are not enforceable under s. 24, provision that permits enforcement only of charter rights. a) Aboriginal peoples of canada: includes indian, inuit, metis, non status peoples too in definition in s. 35(2). (1) R.v.Powley: father and son , shot a moose for food. No hunting license that was required by law. Charged. Defended that they were Metis, who had aboriginal right to hunt for food there. Held: metis refers to distinctive people of mixed ancestry developed their own customs, way of life, group identity separate from India or Inuit or Europeans. Concluded there was distinct society, dating back. Regulation of license not applicable to their hunting. Acquitted. (a) 3 factors indicia of identity: i) Self identification ii) Ancestral connection (traced back) iii) Community acceptance b) Aboriginal and treaty rights: in s. 35 c) Existing: 35 protects existing aboriginal and treaty rights. Existing, does not exclude rights that came into existence after 1982. Future treaty rights would also be protected. (1) R.v.Sparrow: member of band charged under federal fisheries act for fishing with drift net that was no longer permitted by bands indian food fishing license. Held that d was exercising aboriginal right to fish w/n meaning of s. 35. Was it an existing right? Held that existing meant unextinguished, right that was validly extinguished before 1982 was not protected. Must be clear and plain intention of extinguishing right, otherwise will be existing in its unregulated form. Here, the fisheries act did not demonstrate a clear and plain intention to extinguish the indian aboriginal rights to fish. Therefore, there was an existing right w/n meaning s. 35 (a) Held that rights were affirmed in contemporary rather than primeval form, means: Aboriginal rights to hunt and fish were not simply rights to hunt and fishy by bow, and arrow, but rights that would evolve to take advantage of progress of technology. Similarly, right to trade in form of barter, extended to use of currency, credit, and normal commercial facilities of distribution and exchange. d) Recognized and affirmed: Sparrow - should be interpreted w/ principle that treaties and statutes relating to indians should be liberally construed and doubtful expressions resolved in favor of indians. Should also incorporate fiduciary obligation.


(1) Because s. 35 is not part of Charter, not subject so s. 1 Charter, but s. 35 rights are not absolute, they are subject to regulation by federal law, provided the laws met a standard of justification. Any law that had the effect of impairing an existing aboriginal right would be subject to judicial review to determine whether it was a justified impairment. Justified impairment would have to pursue an objective that was compelling and substantial. (conservation and management of limited resource justified objective; public interest is too vague to serve as justification). (2) R.v.Sparrow: ordered a new trial to meet the justification test. if net length restriction were found to satisfy standard of justification, then restriction would be valid and sparrow guilty. If do not satisfy standard, then restriction is invalid as violating s. 35, and sparrow acquittal. (3) R.v.Adams: issue was whether aboriginal right to fish for food had been validly limited by the federal quebec fishery regulations, which provided for licenses for sports, commercial fishing, but not food fishing. Held that regulations failed the Sparrow test of justification. Major goal was sport fishing, not compelling and substantial objective. Even if objective were sufficient, scheme fails to provide the requisite priority to the aboriginal right to fish for food . Ministerial discretion to issue permits did not include standards directing the minister to accord priority to the aboriginal right to fish for food. (4) R.v. Gladstone: question was whether restrictions on the sale of herrign spawn on kelp could be justified in their application to aboriginal people who had an aboriginal to sell the spawn. Priority to aboriginals required only when right was limited by its own terms, as was with fish for food. To give priority to a right w/ no internal limitations would confer on the aboriginal right holders the power to absorb the entire fishery, effectively eliminating all non aboriginal access to the resource. Held that this was unacceptable outcome; for a right w/o internal limitations, the Sparrow requirement of justification did not require aboriginal priority but could be satisfied by objectives such as the pursuit of economic and regional fairness, reliance upon participation in fishery by non aboriginal groups. Remitted issue to a new trial b/c insufficient evidence for scheme being justified. (5) Delgamuukw v. British Columba: crowns fiduciary duty would normally involve a duty of consultation w/ aboriginal people before decisions were taken w/ respect to their lands. Fair compensation required when aboriginal title was infringed. e) Application of treaty rights: R.v.Badger: Sparrow test applies to treaty rights too, as well as aboriginal rights. R.v.Marshall: ;aws limiting treaty rights would not have to satisfy any standard of justification. If defining a treaty right, no need to meet Sparrow test. Only those laws would take aboriginal catch below quantities reasonably expected to moderate livelihood should be regarded as regulating treaty right, and will need to satisfy Sparrow test. f) Application to extinguishment: s. 35 (implicit in Sparrow) protects aboriginal and treaty rights from extinguishment by fed law. Test in Sparrow would save a federal law that purported to regulate an aboriginal or treaty right, but not a federal law that extinguished the right. S. 35 - rights/treaties can be extinguished by 1) surrender, 2) constitutional amendment. g) Application to provincial laws: s. 35 gives protection to aboriginals against prov laws. R.v. Badger: held that prov law could infringe treaty right, provided it could satisfy the Sparrow standard of justification. R.v. Cote: held that the Sparrow standard of justification was available to prov laws. (1) Apart from 35, prov laws can impair aboriginal rights or treaty, b/c affect indianness. By virtue of s. 88 prov laws may become applicable to indians, but treaty rights immunized from s 88. through s. 88 prov law can impair aboriginal rights. h) Duty to consult aboriginal people: S. 35 not only guarantees existing aboriginal and treaty rights, it also imposes on govt the duty to engage in various processes even before an aboriginal/treaty right is established. Gives constitutional protection to a special relationship btn crown and aboriginals under the honor of the crown must govern all dealings. Honor entails, negotiation of claims, while claims unresolved, honor involves duty to consult. (1) Haida Nation v. British Columbia: duty to consult and accommodate established. BC allowed company to cut trees on land that was Haidas, in dispute to resolve title, when cutting began. Held, s. 35 obliged crown to consult Haida people and if needed, accommodate their concerns. Extent of consultation and accommodation - is proportionate to strength of the case supporting the existence of a right or title and seriousness of effect on title claimed. (a) They had prima facie case for title, and crown knew about the license process, so was under duty to consult, since it didnt, it breached and license was invalid to company. (b) Duty to consult will lead to duty to accommodate, where consultation indicate that crown should modify its proposed action to accommodate aboriginal interests (not discussed here b/c there was no consultation to begin w/) (c) Duty to consult does not extend to private party (company). Duty to consult extended to crown in right of the province. (d) Crowns actions are reviewable by courts under judicial review, to determine if sufficient. Standard is Reasonableness. (e) Nature of consultation/accommodation required depends on circumstances or the case. (2) Taku River Tlingit First Nation v. BC: mining company applied to open old mine that was subject to land claim by first nations. Held there was prima facie case for aboriginals, duty to consult and accommodate, opening mine was potentially


harmful to claim. But, Crown was discharged from its duty b/c they were involved in process for 3.5 years. Held: Duty does not mean crown must agree. Only a reasonable balance between aboriginal concerns and competing considerations (3) Mikisew Cree First Nation v. Canada: fed govt proposed to build road in national park on fed crown land in norther Alberta. Route of land was through traditional grounds of first nations, who objected to project. Project w/n treaty 8 of Alberta, according to which aboriginal people had surrendered the entire area to crown, in return they were promised reserves and benefits - right to hunt, trap, fish throughout surrendered territory, settlement, mining, lumbering, trading. Proposed road involved exercise of Crown taking up land under clause. (a) Held: Treaty 8 was not complete discharge of the duty arising from honor of the crown. Honor of crown required consultation w/ affected people. Duty of consul leads to duty to accommodate interests, although do not require consent from indians. (b) Court quashed ministers decision to approve road project and send back for reconsideration. 9. Section 25: charter is not to be construed as derogating from any aboriginal treaty or other rights or freedoms that perftain to aboriginal peoples. Carobiere v. Canada: the fact that aboriginal ppl cannot alone bring it w/n scope of other rights or freedoms of s. 25. Court struck down residence provision under s. 15 on basis that it discriminated against those band members who lived off the bands reserves. a) S. 35 leaves very little for s. 25, but class of rights saved under 25 is wider b/c of reference to other rights. s. 25 rights expressly include rights recognized by royal proclamation. 10. Section 35.1: sect 91(24) of con act 1867, ss. 25, ss. 35 of con act 1982 can be repealed, or amended by seven-fifty formula in section 38 of con act 82: consent of federal parliament and the legislatures of two-thirds of the provinces, representing 50% population of the provinces. S. 25 and 35 have been amended before. a) Sect 35.1 added - declares fed and prov govts are committed to the principle that before any amendment is made to 91(24), 25, or 25, constitutional reference will be convened to which representatives of the aboriginal peoples of canada will be invited to participate in discussions of the proposed amendments. (special status is accorded b.c no other group is given this entry into the constitutional process) 11. Charlottetown Accord: defeated, established self government for first nations, charter will apply to them, supplemented by ancillary provisions that attempted to give some definition to aboriginal self govt and set up political accord that would guide negotiations. Movement to self govt started and may succeed in future. 12. Haida Nation v. British Columbia (Minister of Forests): (also look at notes above on pg. 59 a) Issue: In this situation, what duty if any does the government owe the Haida people? More concretely, is the government required to consult with them about decisions to harvest the forests and to accommodate their concerns about what if any forest in Block 6 should be harvested before they have proven their title to land and their Aboriginal rights? b)Rules: (1) The existence of the duty: The duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it: (2) The scope of the duty is proportionate to a preliminary assessment of the i) strength of the case supporting the existence of the right or title, and to the ii) seriousness of the potentially adverse effect upon the right or title claimed. (the more serious rights affected, greater duty). (a) The Crown is not under a duty to reach an agreement; rather, the commitment is to a meaningful process of consultation in good faith. (b) The content of the duty varies with the circumstances and each case must be approached individually and flexibly. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal people with respect to the interests at stake . (c) Third parties cannot be held liable for failing to discharge the Crowns duty to consult and accommodate. The honour of the Crown cannot be delegated (d) Finally, the duty to consult and accommodate applies to the provincial government. The duty to consult and accommodate here at issue is grounded in the assertion of Crown sovereignty which pre-dated the Union. It follows that the Province took the lands subject to this duty. (e) When does the duty to consult arise? i) Reasoning: the strength of the case for both the Haida title and the Haida right to harvest red cedar, coupled with the serious impact of incremental strategic decisions on those interests, suggest that the honour of the Crown may well require significant accommodation to preserve the Haida interest pending resolution of their claims. 13. R. v. Van der Peet a) Issue: whether the defendant had an aboriginal right to sell fish. b) Facts: d convicted of selling fish that she caught under authority of Indian food fish license.


c) Ph: Sparrow test - extinguishment, infringement and justification - First, a court must determine whether an applicant has demonstrated that he or she was acting pursuant to an aboriginal right. Second, a court must determine whether that right has been extinguished. Third, a court must determine whether that right has been infringed. Finally, a court must determine whether the infringement is justified. (Sparrow test of justification??) d)Rules (1) Legal Test to identify an existing aboriginal right w/n s. 25: activity must be an element of a practice, custom, or traditional integral to the distinctive culture of the aboriginal group asserting the right. (a) factors: Look at right being identified, nature of the action which the applicant is claiming was done pursuant to an aboriginal right, the nature of the governmental regulation, statute or action being impugned, and the practice, custom or tradition being relied upon to establish the right. (b) To be integral, practice must be of central significance to aboriginal society: must be defining characteristics of the society, one of the things that made the culture of the society distinctive. The practice must have developed before contact, practice can evolve but into a modern form that can be traced to its origins back to pre contact period. (c) This position is correct; the existence of an aboriginal right will depend entirely on the practices, customs and traditions of the particular aboriginal community claiming the right. (2) Basing the identification of aboriginal rights in the period prior to contact is not inconsistent with the inclusion of the Mtis in the definition of aboriginal peoples of Canada in s. 35(2) of the Constitution Act, 1982. The history of the Mtis and the reasons underlying their inclusion in the protection given by s. 35 are quite distinct from those relating to other aboriginal peoples in Canada. e) Held: unlike practice of fishing for food, practice of selling fish was not an integral; part of Sto:lo culture. It was only after contract that these people begun fishing to supply for market, created by European demand. Thus, D was unsuccessful in establishing aboriginal right to sell fish, was properly convicted. 14. Delgamuukw v. British Columbia: aboriginals brought proceedings for declaration that they had aboriginal title and self govt rights over territory in north BC. Court did not grant, but gave a new trial. a) Issues: What is the nature of the protection given to aboriginal title under s. 35(1) of the Constitution Act, 1982? Did the province have the authority to extinguish the title after confederation? b) Aboriginal title relevance: what makes it unique - 1) land held under aboriginal title is held communally and decisions w/ respect to land are made by that community. title encompasses right to choose to what uses land can be put. These characteristics imply role for laws and customs as to how the land is to be shared by the members of the community, how the land is to be managed, and how the land is to be developed. 2) it can only be transferred to the Crown. c) The court states that aboriginal title is given full protection under s. 35(1). They also establish the TEST for determining if aboriginal title exists. (1) the land must have been occupied before sovereignty, (2) there must be a continuity between pre-sovereignty and modern times (but not an unbroken chain) if modern evid for claim (3) at the time of sovereignty, the occupancy must have been exclusive (but it could have been jointly exclusive by more than one party or tribe). d) They go on to say that this is not an absolutely protected title. It can be infringed upon if the infringement passes a two-part test: (1) the infringement must be in furtherance of a legislative objective that is compelling and substantial, (2) the infringement must be consistent with the special relationship between aboriginals and the Crown. e) Held The ruling also made important statements about the legitimacy of Indigenous oral history ruling that oral histories were just as important as written testimony. Normally the courts demand direct evidence, and do not accept hearsay. However, in aboriginal title claims they are talking about record from before the time they were written down. Therefore, in order to claim their title the courts have to accept the oral history from the members of the first nation. The Supreme Court holds that oral histories must be given weight C. INTERPRETING THE CHARTER OF RIGHTS AND FREEDOMS - Ch. 36 1. Judicial review a) Role of s. 1: law 1) limiting charter right is valid if law is 2) reasonable limit that can be demonstrably justified in a free and democratic society. (court decides whether appropriate compromise between civil and libertarian value and competing social/economic objectives. b) Role of s. 33: override power which enables parliament or legislature to enact a law that will override the guarantees in s. 2 and ss. 7 to 15 of the Charter. (enact law containing express declaration that the law is to operate notwithstanding the relevant provision


of the Charter). Extends to expression, legal rights, equality. Any judicial decision can be overcome by reenactment of invalid statute w/ declaration of override. Not to democratic rights, mobility, language rights, sexual equality - no override for these. 2. Dialogue w/ legislative branch a) Idea of dialogue: decisions striking down statutes on charter grounds can be reversed, revived under s. 33. When law struck down, it has failed s. 1 test, this means that different law that pursues same objective but makes less drastic encroachment on Charter would be reasonable limit that can be demonstrably justified in a free and democratic society. Charter decision begins dialogue btn judicial and legislative branches of how to reconcile individual values of charter w/ social economic policies. b) Second look cases: R.v.Mills - look at other notes c) Remedial discretion: look at other notes d) Political questions: constitutional challenge to govt policy succeeds if can persuade policy is contrary to constitution. Operation Dismantle v. The Queen: there is no doctrine of political question in canadian con law. if case tried question whether executive or legislative action violated con, then question answered by the court, regardless of political character of controversy. Re Canada Assistance Plan: question of whether con contain any prohibition on enactment of legislation to curb spending by fed govt under shared cost agreements w/ the provinces -- was a legal question that could be answered by court. e) Secession Reference: secession of quebec was a political question that court answered. 3. Characterization of laws a) Comparison w/ federalism review: (1) Two stage judicial review process -(a) Determine if law abridges charter right -- two related issues to be resolved i) Characterization of challenged law: examine purpose or effect of the challenged law, to determine if it limits charter right ii) Meaning of the asserted right: interpretation of language of charter to determine whether it has been abridged by challenged law. (b) Whether law can be justified under s.1 (2) If the purpose if a law is to abridge charter right, then law will be unconstitutional. (3) If the effect of the law is to abridge charter right, then law will be unconstitutional unless saved by s. 1. Rule tolerates effects on matters outside judx of enacting legislating body so long as the purpose (pith.substance) of law is w/n the jdx of enacting body. (a) Contrast to federalism: matter of challenged law is pith and substance. In determining pith/substance, look at purpose of law. Once pith/substance of law is w/n powers of enacting legislative body it is no objection that the law may have some effect on matters outside the powers of the enacting legislative body. b) Purpose or effect: law will offend charter if its purpose OR effect is to abridge a charter right (analyze both, need only one to invalidate). Effects cannot be relied upon to save legislation that has an invalid purpose. c) Trivial effects: where the effect of a law on a charter right is trivial or insubstantial there was no breach of the charter (R.vJones: approval for educating kids in basement; law did not violate freedom of religion) d)Severance e) Reading down: if two interpretations to charter right - one abridging and one not, apply the right that does not abridge charter right. 4. Interpretation of the Charter a) Progressive interpretation: requirement of flexibility or progressive interpretation applies to charter; concept of canada being a living tree capable of growth and expansion w/n its natural limits. Apply if facts happen that were unforeseen at time of drafting. b) Generous interpretation: provisions of BNA should not be cut down by a narrow and technical construction, but should be given a large and liberal interpretation (Edwards v. AG Can). It will give full effect to civil liberties that are guaranteed by the Charter (AG Que v. Blaikie). General interpretation refers to (broad) scope of rights. (protects advertising, prostitutes soliciting, hate propaganda, obscenity, defamation, nude dancing). c) Purposive interpretation: involves an attempt to ascertain the purpose of each charter right and then to interpret the right so as to include activity that comes w/n the purpose and exclude activity that does not. It is same as generous approach. It has a broad scope for the right. Effect of purposive approach is going to be to narrow the scope of the right. d) Process as purpose: two advantages - 1)supplies a helpful context for interpreting certain guarantees, 2)offers a solution to problem of legitimacy of judicial review. e) Hierarchy of rights: s. 33 provides overright for some rights and not others. f) Conflict between rights: s. 25 aboriginal and treaty rights, may be conflicted w/ equality guarantee which prohibits discrimination on ground of race. S. 25 recognizes this and states that aboriginal rights are to prevail.


(1) Conflict between denomination school s. 9 (defined by religion) and s. 15 which prohibits discrimination on ground of religion. Sec 29 states denomination schools are to prevail. (2) Other cases had freedom of expression conflicting with right of access to court or criminal code offense propaganda resolved through s. 1 - ad hoc balancing. (3) Conflict btn rights (s. 7) to defense and witnesses rights (7 or 8) to reasonable expectation of privacy (counseling and medical reports in sexual offense) - trial judge must weigh factors in determining whether to make disclosure (R.v.OConnor). 5. Priority between federal and charter grounds: when law challenged on both fed and charter grounds, it is fed ground that is the more fundamental of the two, and that ought to take priority over charter ground 6. Commencement of Charter: laws that would offend the charter today but were repealed before the Charter was enacted, have no remedy today for the violations. Exceptions: a) Section 13 right not to have any incriminating evidence used against witness that was given in early proceeding - even if before Charter. b) Section 11(b) right to be tried w/n reasonable time (period of delay occurring before Charter) c) Section 12 0 right not to be subject to cruel and unusual punishment. Where sentenced before Charter and sentence continues now is breach of s 12 d) Benner v, Canada: children born outside canada, if father is canadian have automatic right to register as canadian citizen, if canadian mother have to pass security test (before 1977). Court held that status or condition imposed a disadvantage on him that persisted after 1982 (born in 1962). Discrimination occurred when applicant was refused citizenship on basis of that status and refusal took place in 1987. Therefore, applicant was entitled to challenge the refusal of citizenship under the Charter (breach of equality rights (treating children born from canadian mothers differently than canadian fathers). 7. Undeclared rights: section 26 makes clear that Charter is not to be construed as taking away any existing undeclared rights or freedoms. (common law or statute) Rights continue to exist and do not receive any protection from the Charter. These differ from charter b/c undeclared rights can be altered or abolished by act of legislature, and emedy under s. 24 is not available for their enforcement. D. APPLICATION OF THE CHARTER OF RIGHTS AND FREEDOMS - Ch. 37 1. Benefit of rights a) Everyone, anyone, any person: some rights protects corporations too, some do not: freedom of conscience and religion, fundamental justice, not to be arbitrarily detained, right to reasonable bail, self incrimination, right to interpreter. Can invoke rights under s. 24. (right to religious freedom R.v.Big M Drug Mart: applied. Rights that do not apply can operate to benefit of corporations. (1) Singh v. Minister of Employment & Immigration: anyone who entered canada, even illegally, was entitled to s. 7, it applied to everyone.(refugee claim entitled to hearing before person w/ authority to decide issue) (2) Sec. 32 requires action by canadian govt for charter to apply. b) Individual: sect 15 confers rights on every individual - applies to natural persons only, probably excludes corporation. (but corps can rely on s. 15 for defense of criminal charge under law that is invalid by virtue of unconstitutional discrimination against individuals. (individual does not include foetus or estate of deceased person. - rights die w/ person) c) Citizen: everyone in s. 7 includes anyone physically present in canada, do not have to be citizen, even if illegal entrance. Citizenship required for voting rights, mobility rights, minority language education rights. (corp not citizen). d) Permanent resident: mobility rights of s. 6(2) apply to such. Definition: person who acquired permanent resident status, but not canadian citizenship. (can corp be a permanent resident?) 2. Burden of rights: a) Both levels of government: who is bound by charter -- parliament and govt of canada, and to legislatures and govt of each province = both levels of govt. (Canadian Bill of Rights only applies to federal level) b) Parliament or legislature: any statute created by parliament or legislature which is inconsistent w/ charter will be outside the power (ultra vires) of the enacting body and will be invalid. (1) New Brunswick Broadcasting Co v. Nova Scotia: Held, world legislature in s. 32 makes Charter applicable to legislative assembly even when assembly acted independently of Lieutenant Governor and was for that reason less than the full legislature. Also held that power of assembly to exclude strangers from its deliberations was immune from Charter review = Charter did not apply b/c one part of the constitution cannot be abrogated or diminished by another (this immunity was part of the constitution). (wrong decision --> purpose of Charter is to diminish powers of the legislative and executive branches of govt, including those that are conferred by the Constitution) (2) Legislative silence: Vriend v. Alberta: legislature had enacted prohibition on discrimination on race, sex, religion, disability, national origin, other grounds. Held that denial of homo sexual was denial of equal benefit of the law. If Alberta had no human rights statute at all, then Charter challenge would have failed b/c there would have been no statute or govt act to which Charter would apply to. Legislature subjected itself to the Charter.


(3) Legislative exclusion: Dunmore v. Ontario: legislature was under a positive duty to extend protections of labor relations law to those employee group who could not otherwise successfully organize. Enactment of labor statute provides min state action required for invoking the Charter. Exclusion of agricultural workers was breach of 2(d) freedom of association, provision severed from statute. c) Statutory authority: any body exercising statutory authority, governor in council, lieutenant, ministers, officials, municipalities administrative tribunals, police officers, all subject to Charter. Distinctive character is power of compulsion - must conform to Charter. (1) Held that mandatory retirement policies of university and hospital are not reviewable under the Charter. (corp created by statute but are private and can exercise contractual powers that are available to natural person) Where govt has delegated power of compulsion to body/person, then Charter will apply. (2) Examples of bodies/persons possessing statutory authority : municipal by law, arbitrator (b/c power from statute), if power came from parties consent then no Charter; law societies; rules of organization binding on members through consent then no Charter; Charter applies to auto insurance policies, private people making citizens arrest. Applies whether they are part of govt or controlled by govt (are often independent from govt). (3) Applies to fed and prov govts even if govt action was not based on statutory authority. (4) Eldridge v. BC: Issue: whether hospital bound by Charter. Facts: did not provide sign language interpretation for deaf persons seeking medical services (would be breach of s. 15) Held: Charter was applicable despite the absence of any power of compulsion. *Hospital Act was implementing specific govt poliy or program. (a) Stoffman v. VGH: Held Charter did not apply to mandatory requirement policy of hospital docs at age 65. Although established and empowered by statute, undeniably performing public service, hospital did not exercise any powers of compulsion in providing medical services. (b) *Distinguishable from Stoffman b/c it decided that Charter not applicable to day to day operations, not that specific govt policy or program. (Hoffman thinks Eldridge was decided wrongly and should not be subject to Charter) (5) Re Bhindi: Facts: whether closed shop provision in collective agreement violated guarantee of freedom of association in Charter. (work place in which employer agreed to hire only members of union). Held that collective agreement btn private employer and union of employees, thus, collective agreement was private contract to which Charter did not apply. (but collective agreement would be ineffective w/o statutory authority, its force goes beyond common law) (Hoffman thinks that it should be subject to Charter). (6) Lavigne v OPSEU: issue; whether agency-shop provision in collective agreement violated guarantee of freedom of expression and association in Charter. (work place where employees not required to join union, but all required to pay dues to union). Held that Charter applied b/c employer was agent of prov govt, which made collective agreement a govt act. (employee subject to statutory power of compulsion as if statute directly ordered him to pay the dues) Because govt was party to the collective agreement, Charter applied. d) Amending procedures: s. 32 makes charter binding to process of constitutional amendment. Limited powers of amendment that are possessed by fed (s. 44) and prov (s. 45) are constrained by Charter. (ss. 38, 41, 43 are not constrained). e) Government: s. 32 govt will make charter applicable to govt action taken under both kinds of common law powers (honors, issues, passports, foreign affairs - acting in prerogative powers). Held Charter applies to govt owned property (airports, streets); cabinet decisions taken under prerogative to allow US to test its cruise missile in canada); crown agent of a contract of employment w/ its employees). (1) Held that community college in BC was subject to Charter b/c it was subject to a substantial degree of govt control. (board appointed by lieutenant gic, minister had power to issue directives to college) (2) Control test: looks at institutional or structural link w/ govt to determine whether public body is covered by the Charter. (does not matter if performing public service, as long as performing it independently of govt. Irrelevant if public body performing private function if performing it under control of govt) Question whether govt assumed control of function. If body that breached Charter was relying on statutory power, Charter will apply regardless of whether or not body is w/n term govt. f) Courts: charter does and does not apply to courts. (1) No - Dolphin Delivery: Held that Charter had no application to a court order. Govt meant exec and legislature, not judicial branch. Court order of injunction was not subject to Charter (appeal to remove injunction to prevent picketing, union sought removal on grounds it rejected freedom of expression). Elements that make this decision distinctive: (a) court order resolved dispute between 2 private parties (b) Court order based on common law. NO govt involveed in dispute, no statute applied to the dispute. Therefore, no govt action could make Charter applicable.


(2) Yes - R.v.Rahey: Trial court adjourned criminal application 19 x and took 11 months, to deny. Court held this was breach of s. 11(b) right to be tried w/n reasonable time, ordered stay of proceedings. (3) Yes - BC Govt Employees Union v. BC: BC chief justice issued injunction on his own when he saw picketers outside court house on his way to work. Supreme Court refused to set aside injunction. held that it did limit freedom of expression but was justified under s. 1. Court order was subject to charter review. Courts motion was entirely public in nature rather than private. (4) Nearly all criminal defendants rights are bound by Charter (judicial branch) Since they can order injunctions by statute, judicial should be included in s. 32 g) Common law: (does it apply to courts since courts make common law). If applicable law is common law, Charter does not apply. Applies to statute. (if prohibition is enacted by a labor code, then charter would apply). (1) Held in Dolphin Delivery that Charter does not apply to common law or at least those rules of common law that regulate relationship between private parties. Basis for injunction was rule of common law that secondary picketing would amount to the tort of inducing a breach of contract. Union argued rule unconstitutional abridgment on freedom of expression. Held charter did not apply to rule where private party sues another private party relying on common law, where no act of govt is relied upon to support action. (2) Charter applies: when police exercises common law power to search accused person incident to arrest; Crown adduces evidence of accuseds insanity; Crown acts under prerogative power. Presence of govt actor, not source of actors power that makes Charter applicable. (3) Charter does not apply: directly to common law where no govt actor involved. Charter has an indirect effect on common law. (4) Pepsi-Cola Canada Beverages v. RWDSU: (dispute btn private parties) Court over-ruled past cases and created wrongful act doctrine: held that picketing could be enjoined only if it involved the commission of a wrongful act. (since no wrongful act involved, at the stores, Court discharged that part of the injunction. (5) Dagenais v. CBC: challenge to injunction (publication ban) that was issued by judge to prohibit CBC broadcasting that could affect juries in series of criminal trials of Christian brothers charged w/ abusing boys. (dispute between private parties, although CBC publicly owned is not an agent of Crown). Held law gave insufficient weight to Charter value of freedom of expression. Formulated more restrictive common law rule for issue of publication bans, and by striking down ban under appeal (6) Hill v. Church of Scientology: Crown attorney brought action for defamation against Church and its lawyer who falsely accused attorney of violating court order. Ds argued that their statements protected by Charter b/c statements in relation to Crowns official duties, his action funded by crown. Held, in the context of defamation, plaintiff was private party, b/c action brought not as part of his govt duties but to vindicate his personal reputation. Common law governed COA, Charter did not apply, No govt action under s. 32. Common law of defamation complies w/ underlying values of Charter & there is no need to amend/alter it. (7) Rule: common law should be developed into conformity w/ Charter values, means: although charter does not apply directly to common law, it does apply indirectly. Charter values are relevant to statutory interpretation only where the statute is ambiguous and reference to a Charter value would help resolve the ambiguity. h) Private action: Charter regulates action between govt and private persons, btu it does not regulate relations btn private person and private persons. Private action is excluded from Charter. Instead remedies are under human rights code, labor law, family law, tort law, contract/property law, etc. (1) R.v.Buhay: security guards opening locker not subject to charter s. 8 (unreasonable search and seizure) b/c not subject to govt control, nor where they acting as agents of police. (2) Even if act is private if there is a statute or presence of govt, then charter is applicable: parliament gives power of arrest to private citizens, criminalizes abortion, prohibits employee discrimination, govt contracts w/ employees. (3) Under-inclusive statute is one that excludes some group that has a constitutional right to be included. Extend statute to previously unregulated activity. (Vriend: excluded sexual orientation from human rights statute was violation of s. 15 Charter) i) Extraterritorial application: foreign govts are not bound by the charter and their actions cannot be breaches of charter. Canada has entered into extradition treaties w/ other states under which it agrees to surrender to the other state a person who has been charged w/ or convicted of an offense in the other state but who has fled to canada. (1) 2 stage process: 1) judge holds hearing to determine whether foreign state has sufficient evidence of commission by fugitive of extradictable offense in foreign state 2) only if extradition judge finds evidence to be sufficient, minister of just decides whether to surrender the fugitive to requesting state. (a) If under stage 2 the person is canadian citizen that is violation of s. 6 denial to remain in canada, but justified under s. 1) Has agreement with US that extradition may be refused if no assurance that death penalty will not be used.


(2) US v. Burns: two canadians under 18 committed murder in US, fled to BC, caught, extradited, MOJ asked for no assurances of death penalty. Court held it would be breach of fundamental justice to extradite fugitives w/o obtaining assurances that death penalty would not be imposed. Extradition to face death would shock conscience of court and violate s. 7. Safe haven argument dismissed on basis that there was little indication that US govt would ever fail to give assurances;. (3) Suresh v. Canada: held that deportation of person who might face torture is not materially different from extradition. (s. 7 also requires person making claim for torture be given full info of case for deportation, full opportunity to respond and provided w/ reasons for decision). Held, deportation set aside b/c no opportunity given to substantiate claims and not a danger to canada. (4) Schreiber v. Canada: DOJ sent letter requesting swiss authorities to seise records of bank account of canadian there wanted by rcmp for criminal investigation. Letter not authorized by search warrant or s. 8. Swiss in compliance w/ swiss law seised. Held that letter of request had no legal effect and was not subject to charter review for that reason. Actions done by foreign govt under foreign law. Dissent: canadian officers had no legal authority to act in US. Unconstitutional extraterritorial effect to impose Charter. (5) R.v. Cook: Held that charter applied to interrogation (our cops in american jail interrogating american who murdered in canada) b/c although interrogation took place in US, it was carried out by our police. No interference w/ american sovereignty. First time where charter given extraterritorial effect by applying it to actions outside canada by canadian actors. (6) R.v.Hape: Canadian cops under Turks and Caico officers supervision, seize evidence in compliance with their law, and some would been obtained in breach of charter. Held charter should not apply, charter should only apply to actions taken by canadian actors inside canada (Cook dissent). (a) Charter should be read down to conform to principles of international law that respect sovereignty of foreign states. Charter intended as a guide to action by canadian police, not merely as a vehicle for ex post facto review of evidence obtained in foreign state. (b) However, if police action in foreign state yielded evidence that would make canadian trial unfair then evidence could and should be excluded under s. 7 and 11(d) Charter. That would not be extraterritorial application but to control the process of the canadian court. (c) Failure to to meet charter standards in seizing evidence in foreign country is not by itself enough to make canadian trial unfair. Here, evidence obtained in compliance w/ foreign law and did not make trial in canada unfair. (7) Canada v. Khadr: Canadian citizen capture by US in Afghan, held in Guantanamo Bay, Cuba. Canadian officials interviewed him in Cuba and made records, gave copy to US. Held: entitled to s. 24(1) remedy of disclosure of records held by Canadian govt. If everything had taken place in canada, K would be entitled to s. 7 Charter, right to full disclosure of all relevant material. Held Guantanamo process in breach of Geneva Conventions (canada and us are parties to) and by handing over materials, canada was involved in process. Therefore, Hape did not apply and Charter acquired extraterritorial effect. Neither interview or handing over records was breach of Charter. 3. Eldridge v. BC (AG): a) Issues: whether hospital (non govt entity) is bound by the Charter. The constitutional questions before this Court queried: (1) Whether the definition of benefits in s. 1 of the Medicare Protection Act infringed s. 15(1) of the Charter by failing to include medical interpreter services for the deaf (2) If so, whether the impugned provision was saved under s. 1 of the Charter (3) Whether ss. 3, 5 and 9 of the Hospital Insurance Act and the Regulations infringed s. 15(1) by failing to require that hospitals provide medical interpreter services for the deaf, and (4) If the answer to 3 is yes, whether the impugned provisions were saved under s. 1 b) Facts: no sign-language interpretation for deaf persons seeking medical services (would be breach of s. 15). The failure to pay for interpreters, they contend, infringes their right to equal benefit of the law without discrimination based on physical disability c) Reasoning: (1) First, the mere fact that an entity performs what may loosely be termed a public function, or the fact that a particular activity may be described as public in nature, will not be sufficient to bring it within the purview of government for the purposes of s. 32 of the Charter. In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program. (2) The second important point concerns the precise manner in which the Charter may be held to apply to a private entity. (a) First, it may be determined that the entity is itself government for the purposes of s. 32. This involves an inquiry into whether the entity can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as government within the meaning of s. 32(1). In such cases, all of the activities of the


entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as private. (b) Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation into the nature of the activity itself. In such cases, the quality of the act at issue, rather than the quality of the actor, must be scrutinized. (3) it is not the legislation itself that violates the Charter, as it merely says that all services must be provided equally and does not give specific examples of how the hospitals are to determine which services to provide to which patients. Therefore, the legislation does not violate s.15. However, the Charter definitely applies to action taken under statutory authority, which is exactly what is happening in this case. The governing statutes give the hospitals authority to determine what benefits to provide, however these decisions must be made in ways that are consistent with the Charter. There is nothing in the legislation that prevents the hospitals from providing the interpreters. (4) La Forest states that government should not be allowed to escape their Charter limitations simply through relegating authority. Thus, if a private entity is acting under statutorily granted authority, their action will be subject to Charter scrutiny. Thus, private entities acting under statutory authority will be deemed to be included in the definition of "government" in s.32. He makes an important distinction, stating that if a private entity is entirely controlled by the government then all of its actions will be subject to Charter scrutiny, whereas in cases like this where only specific parts of a private entitys actions are granted under statute, only those actions will be subject to the scrutiny. d) Rule: If an entitys act is truly governmental in nature, that entity will be under Charter scrutiny only with respect to that act - not all of their private activities. e) S. 15 test: (1) There must be a distinction between others; (2) The distinction has to be one that imposes benefits or withholds burdens; (3) One must show that this discrimination is based on an enumerated or analogous ground. f) Held: Charter was applicable despite the absence of any power of compulsion. *Hospital Act was implementing specific govt policy or program. The failure of the Medical Services Commission and hospitals to provide sign language interpretation where it is necessary for effective communication constitutes a prima facie violation of the s. 15(1) rights of deaf persons. Sign language interpreters must be provided in the delivery of medical services where doing so is necessary to ensure effective communication. g) Disposition: appeal should be allowed. Answered questions 1 and 3 in the negative. Not necessary to answer 2 and 4. 4. Greater Vancouver Transportation Authority v. Canadian Federation of Students: GVTA refused to post the respondents political advertisements on the sides of their buses on the basis that their advertising policies permit commercial but not political advertising on public transit vehicles. The respondents commenced an action alleging that articles 2, 7 and 9 of the transit authorities policies had violated their right to freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. a) Issue: (1) whether the entities which operate the public transit systems in the GVRD and elsewhere in British Columbia are subject to the Charter; (2) if so, whether the impugned policies adopted by these entities infringe the respondents right to freedom of expression; (3) if so, whether the limits imposed by those policies are reasonable limits prescribed by law within the meaning of s. 1 of the Charter; and (4) whether a declaration can be made under s. 52 of the Constitution Act, 1982 with respect to the policies. b) Rule: When government exercises substantial control over an entity, that entity may come under Charter scrutiny. there are two ways to determine whether the Charter applies to an entitys activities: (1) by enquiring into the nature of the entity or by enquiring into the nature of its activities. (2) 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. If an entity is not itself a government entity but nevertheless performs governmental activities, only those activities which can be said to be governmental in nature will be subject to the Charter. c) Reasoning: Both BC Transit and TransLink are government within the meaning of s. 32 of the Charter. Charter applies not only to Parliament, the legislatures and the government themselves, but also to all matters within the authority of those entities. BC Transit is a statutory body designated by legislation as an agent of the government and it cannot operate autonomously from the provincial government, since the latter has the power, by means of regulations, to exercise substantial control over its day-to-day activities. Although TransLink is not an agent of the government, it is substantially controlled by a local government entity the Greater Vancouver Regional District and is therefore itself a government entity. Since the transit authorities are government entities, the Charter applies to all their activities, including the operation of the buses they own. (1) The limits resulting from the policies are not justified under s. 1 of the Charter. However, the limits on political content imposed by articles 2, 7 and 9 are not rationally connected to the objective. It is difficult to see how an advertisement on the side of a bus that constitutes political speech might create a safety risk or an unwelcoming environment for transit users.


Advertising on buses has become a widespread and effective means for conveying messages to the general public. To the extent that articles 2, 7 and 9 prohibit political advertising on the sides of buses, they place an unjustifiable limit on the respondents right under s. 2(b) of the Charter. d) Held: Yes statutory bodies designed by legislation as an agent of the government, with a board all appointed by the Lieutenant Governor and the LG having authority to manage affairs through regulations. Agents of government that do not operate autonomously. *Consistent with principle that government should not be able to shirk its Charter responsibilities by conferring powers onto another entity e) Appeal dismissed. E. OVERRIDE OF RIGHTS - Ch. 39 1. Section 33: enables parliament/leg to override s. 2 or ss. 7 to 15 of the Charter. If statute has an express declaration that it is to operate notwithstanding a provision included in s. 2 or ss. 7 to 15 of the charter, then by virtue of s. 33(2) statute will operate free from invalidating effect of the charter provision referred to in the declaration. Through this, statute limiting rights/freedoms guaranteed under 2, 7-15 can be made, without having to meet s. 1 Test. W/o override power, statute would only be valid if justified under s. 1 2. Rights that may be overridden: fundamental freedoms s. 2, legal rights s. 7 to 14, equality rights s. 15. Declaration must refer specifically to the charter provision that is to be overridden. (does not include democratic rights 3-5, mobility rights 6, language rights 16-23, enforcement provision 24 or sexual equality clause (28). 3. Five-year limit: express declaration will automatically expire at end of 5 years. Can re enact under 33(4) but will also expire after 5 years. Not clear if can renew 3rd time. Declaration re enacted under (3) should probably be regarded as declaration made under subsection (1). 4. Specificity of declaration: a) Override must expressly declare - that statute is to operate notwithstanding a charter right. b) Express declaration must be specific as to the statute. In Ford v. The Queen: exercise of override power over all statutes, blanket declaration is valid. c) Override must be specific as to the charter right which is overridden. Ford v. The Queen: omnibus reference to rights was sufficient (refer to the very right). Not reasonable to require reference to statute containing declaration. (1) Legislative body must be permitted in some cases to override more than one provision of Charter and indeed all of the provisions which it is permitted to override by terms of s. 33, Nor does the word expressly require that Charter rights be identified by words (freedom of expression); reference to numbers of sections of charter was sufficient express. 5. Retroactive effect: Ford case, act came into effect June 82, the date of enactment, not April 82, the date stipulated in Bill - no retroactive effect when Charter enacted. before Ford case, it was always assumed that decision striking down a statute for breach of charter could be retroactively reversed by competent legislation body of the exercise of its override power. Now, option no longer open. 6. Judicial review: declaration under s. 33 will be held invalid by courts if it fails to satisfy various requirements of s. 33: declaration must be confined to rights in s. 33, it must be specific as to statute that is exempted from charter, and as to the rights that are overridden, and it may not be given retroactive effect. v a) Once express declaration, charter provision has no application to statute, and there is no need for any showing of reasonableness or justification under s. 1 (Ford). 7. Evaluation of s. 33: besides quebec, govts are reluctant to use it and will use it infrequently; public policy supports not using it much. Judicial decision to strike down down law for breach of s. 2 or 7-15 is not final, it is subject to legislative review. If legislature wants the law, it can re enact it by including the notwithstanding clause in s. 33. Power of override allows for rare case where elected reps are convinced that judicial decision is an inappropriate answer to the rights in issue; thus, citizens are able to participate in policy choices for their political community. 8. Ford v. Quebec: Challenge to QC Charter of French Language requiring French-only signs. a) Issue: Whether Quebecs standard, omnibus use of override clause is valid. Clause: Operate notwithstanding the provisions of section 2 and 7 to 15 (1) whether ss. 58 and 69 infringe the freedom of expression guaranteed by s. 2(b) of theCanadian Charter of Rights and Freedoms and s. 3 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12; and (2) whether ss. 58 and 69 infringe the guarantee against discrimination based on language in s. 10 of the Quebec Charter. b) Rule: The general rule is that statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act. c) Reasoning: The essential requirement of form laid down by s. 33 is that the override declaration must be an express declaration that an Act or a provision of an Act shall operate notwithstanding a provision included in s. 2 or ss. 7 to 15 of the Charter. (1) A section 33 declaration is sufficiently express if it refers to the number of the section, subsection or paragraph of theCharter which contains the provision or provisions to be overridden. Of course, if a legislature intends to override only a


part of a provision contained in a section then there would have to be a sufficient reference in words to the part to be overridden. Section 69 of the Charter of the French Language is not protected from the application of s. 2(b) since it was not affected by An Act to amend the Charter of the French Language. (2) In providing that s. 1 should have effect from April 17, 1982, s. 7 of the Act gave retrospective effect to the override provision. This is contrary to s. 33 of the Canadian Charter which permits prospective derogation only. d) Held: We conclude that the latter and narrower interpretation is the proper one, and that s. 7 cannot give retrospective effect to the override provision. Use of standard override provision is valid. Challenge dismissed. F. LIMITATION OF RIGHTS - Ch. 38 1. Introduction: section 1 guarantees rights and freedoms set out in charter but males clear that they are not absolute, they are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 2 part test: 1) whether challenged law has the effect of limiting one of the guaranteed rights. 2) if yes, wether the limit is a reasonable one that can be demonstrably justified in a free and democratic society. a) Courts can point to s.1 as authorizing the development of limits on the guarantee of rights. Under s. 33 can also makes laws that override charter right. 2. Rationale of s. 1: Oakes - s.1 has two functions - not only provided for limits on the guaranteed rights but also expressly guarantees the rights and freedoms set out in charter. 3. Burden of proof: a) First stage: Court decides if charter right was infringed. Burden of proofing all elements of the breach of a charter rests on person asserting the breach. b) Second stage: Inquiry into justification under s. 1. Burden of persuasion shifts to the govt (or other party) seeking to support challenged law; persuade court that law is a reasonable limit and it can be demonstrably justified in a free and democratic society. Oakes - this is a civil standard, proof by preponderance of probability. Evidence should be obvious or self-evident. 4. Presumption of constitutionality: a) Three consequences: (doctrines of judicial restraint designed to minimize intrusion by judicial branch in affairs of legislative branch) (1) Court should exercise restraint in judicial review, striking down the law only if it clearly offends constitutional restrictions on the power of the enacting parliament or legislature. (2) Where validity of a law turns on a finding of fact, that finding of fact need not be proved strictly by the govt, it is sufficient that there be a rational basis for the finding. (3) Where a law is open to 2 interpretations, under one in which it would be unconstitutional and the other it would be constitutional, the latter interpretation should be selected = constitutional. (reading down interpretation). b) In federalism cases: (btn 2 levels of govt) presumption of constitutionality tilts towards govt in favor of upholding the law. In Charter cases: no presumption of constitutionality, no tilting towards favor of govt. 5. Limits: Not every charter infringement is a limit and any infringement that is more severe than a limit cannot be justified under s. 1. Quebec School Board Case: Law limited admission to english language schools in quebec to children of persons who had been educated in english in quebec. Held that quebec clause infringed s. 23(1)(b) Charter that protected minority language school rights, but court refused to draw inquiry into justification under s. 1. Concluded, provisions of clause collide directly w/ those of s. 23 Charter, and are not limits which can be legitimized by s. 1 Charter. Distinction between limits which can be justified under s 1 and denials which cannot be. 6. Prescribed by law a) Definition of prescribed by law: charter rights subject to such reasonable limits prescribed by law can be demonstrably justified in a free and democratic society. Prescribed: an act that is not legally authorized can never be justified under s. 1 (customs discriminating against homosexual literature) (1) Two values of requirement to have prescribed by law: 1) to preclude arbitrary and discriminatory action by govt officials, all official action in derogation of rights must be authorized by law. 2) citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly. (2) Requirements: 1) law must be adequately accessible ;2) law must be formulated w/ sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law. (3) Court has held that phrase prescribed by law in s. 1 entails same 2 requirements of accessibility and precision. GVTA v. Canadian Confederation of students: held that policies of transit authorities restricting advertising on the sides of buses were limits on freedoms that were prescribed by law. They were sufficiently accessible and precise to be law for the purpose of s.1 These were legislative policies, whereas legislative policies which were informal and inaccessible outside govt would not count as law for the purpose of s.1


(4) Court has held that a limit on a right need not be express, but can result by necessity from the terms of a statute or regulation or from its operating requirements. (stat requirement of roadside breath test administered by forthwith which in practice precluded by law on the right to counsel, although the statute was silent on the right to counsel. b) Discretion: a law that confers discretion on a board/official to act in derogation of a charter right will satisfy the prescribed-bylaw requirement if the discretion constrained by legal standards. (1) Re Ontario Film and Video Appreciation Society: (court of appeal case)statute authorizing film censorship failed b/c unfettered discretion to ban, no criteria in statute, board had a criteria. Held, criteria insufficient b/c not binding on board. (2) R.v.Hufsky: upheld statute authorizing police at their unfettered discretion to stop vehicles (at random) Statute was a limit prescribed by law on the right not to be arbitrarily detained. (3) Slaight Communications v. Davidson: adjudicator found employer unjustly dismissed employee. Adjudicator ordered reference letter, ordered not to make comments about performance, only achievements. Purpose of negative order to prevent employer from undermining effect of positive order. Court held both positive and negative orders, although limits on employers freedom of expression, were justified under s. 1. Order made under statute authority so prescribed by law requirement met. Held to be limit by law on freedom of expression. Distinction between 2 types of statutory conferrals of discretion. (a) Statute that expressly/implication authorized a decision that would infringe a charter right - statute itself has to be justified under s. 1 (Hustky, Ladouceur, Ontario film) (b) Statute that conferred in language to encompass decision infringing charter right. although language did not expressly/implication authorize infringement of the charter. (Slaight communications) Broad language should be read down. Decision that limited charter right and justifiable under s. 1 would not infringe right. When decision limited right was made under broad statutory discretion, it was the decision, not the statute, that had to satisfy the s. 1 standard of justification. c) Vagueness: principle that statute is void for vagueness if it prohibitions are not clearly defined. It does not provide clear standards or provide reasonable notice. Void for vagueness implicit in limit in charter right by prescribed by law. (1) Irwin Toy v. Quebec: prov statute prohibited commercial advertising directed at persons under 13. Held a law would fail hte prescribed by law test only where no intelligible standard found and theres discretion to do whatever seems best. Not the case here, there was an intelligible standard for application of the prohibition. (2) Intelligible standard: two values: 1) provision of fair notice to citizens of what is prohibited, and 2) the provision of checks on enforcement discretion. (3) Upheld limits on communication for prostitution, hatred or contempt words, political campaign, on sale of obscene materials, tobacco advertising: Limit on freedom of expression that had vague terms but court held that law supplied sufficiently intelligible standard to meet requirement of s 1 that a limit by prescribed by law. 7. Reasonable and demonstrably justified a) OAKES Test: R.v.Oakes: criteria that must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. Criteria: (1) Sufficiently important objective: law must pursue an objective that is sufficiently important to justify limiting charter right (2) Rational connection: the law must be rationally connected to the objective (3) Least drastic means: the law must impair the right no more than is necessary to accomplish the objective. (4) Proportionate effect: the law must not have a disproportionately severe effect on the persons to whom it applies. 8. Sufficiently important objective (Part 1 of Oakes Test) a) Identity of objective: statement of objective can be expressed at various levels of generality. Andrews v. Law Society of BC: Held law requiring canadian citizenship for admission into legal profession infringed guarantee of equality. Objective of law expressed at high level of generality: to restrict entry to the legal profession to persons who are qualified to practice law. Difference of opinion btn majority who held that citizenship requirement could not be justified under s 1 and minority, that it can, can be traced back to different levels of generality employed by the judges in characterizing the purpose of the law. (1) Reason for finding objective: to determine whether there is a sufficient justification for an infringement of the Charter. (2) Statement of objective should be related to infringement and provide reason for infringing charter right. (3) RJR-McDonald v. Canada: parliament chose lesser path of banning ads of tobacco and exposed to charter challenge vs. banning product. Majority said that objective that is relevant to s. 1 is the objective of the infringing measure. Objective must be to prevent people in canada from being persuaded by advertising and promotion to use tobacco products. This was narrow and less significant objective, than broad objective of protecting health of canadians from use of tobacco. Held law failed the least drastic means branch of s. 1 inquiry, b/c total ban encompassed purely informational and brandrecognition advertising that played no role in persuading people to use tobacco products. Law was stuck down.


(4) Vriend v. Alberta: Held that failure to include sexual orientation in prohibited grounds of discrimination in employment was breach of s 15. Objective of law was to eliminate discriminatory practices, could not be invoked to justify law b/c breach of charter laid in what was omitted from the Act. Province failed to establish existence of important objective that would satisfy the first step of Oakes. LImited could not be justified under s 1 and omission was unconstitutional. (5) Rosenberg v. Canada: Held that failure to include same sex couples survivor benefits not justified under s 1, objective of favoring heterosexual unions was itself discriminatory and could not form basis of s. 1 justification. Held unconstitutional. (6) Irwin Toy v.Canada: Court defined objective of law at a very low level of generality, as protection of children from advertising. Held objective was pressing and substantial. Objective in narrow terms thus, easy to find proportionality tests satisfied. Problem: narrow statement of objective of law, repeated the text of the law, left proportionality test no work left to do. (7) Oakes test implied that its possible to make independent assessment of the objective of a challenged and of the means employed by the law to accomplish its objective - requires objective of law to be formulated at a higher level of generality than mere paraphrase of law. b) Importance of objective: Oakes - only law that can serve as justified limit on charter right is on that pursues an objective that is sufficiently important to justify overriding a charter right. Guidance: (1) objective must meet standard implied in words free and democratic society in s. 1. (2) objective must relate to concerns which are pressing and substantial. 3) objective must be directed to the realization of collective goals of fundamental importance. (1) AG of Quebec v Ford: banning of English is too far, struck down. If only wanted language to be predominantly french, that would have been acceptable under s. 1 c) Inadmissible objectives: Oakes- if purpose is to override charter right, invalid. (1) R.v.Big M Drug Mart: purpose was to compel observance of christian sabbat, purpose was contradictory to charter right and could not be justified limiting the right. (a) Objective of providing a common day of rest would be sufficiently important to justify overriding charter right, but court refused: i) Legislative history of act indicated that purpose was religious not secular ii) Under federalism principles, Act was only constitutionally valid as a criminal law only if the purpose was religious. Legislative objective could not be justified by limiting freedom of religion, Act was thus unconstitutional. (b) Three rules: i) Objective cannot provide basis for s. 1 justification if the objective is incompatible w/ the values entrenched by the Charter. ii) An objective cannot provide the basis for s. 1 justification if the objective is ultra vires the enacting legislative body on federal distribution of power grounds (common day ground not accepted in Big M as federal law, but accepted in Edwards on provincial grounds iii) The rule against shifting objectives d) Shifting objectives: R.v.Big M Drug Mart: purpose is a function of the intent of those who drafted and enacted the legislation at the time and not of any shifting variable. (1) R.v.Butler: court upheld anti obscenity laws of crim code under s.1. Original objective was to promote morality, this objective was insufficiently important to justify a limit on freedom of expression. In recent cases, provision promoted sexual equality. Objective had always been protection of society from harms caused by obscene materials. The change in the way in which courts defined those harms was merely a permissible shift in emphasis the modern emphasis made the laws objective sufficiently important to serve as a justification under s. 1 (2) R.v.Zundel: crim code offense of spreading false news, limit on freedom of expression. Original objective to protect from malicious lies. Held prevention of harm from deliberate falsehoods was too general a statement of the laws objectives. To convert falsehood into a provision directed at encouraging racial harmony is to go beyond any permissible shift in emphasis. Court applied rule against shifting objectives to hold the modern objective could not be attributed to the law. Since the law had not been enacted for an objective that was sufficiently important today to justify a limit on freedom of expression, the law was struck down. e) Cost: it is a possible justification of a limit on a charter right that the limit will save money? (1) Singh v. Minister of Employment & Immigration: to give oral hearing to every person who claimed refugee, would impose unreasonable burden on resources of govt. (2) R.v.Lee: appropriate to deny right to those who burdened the system w/ cost of futilely empanelling a jury (failed to appear at jury trial and wanted jury, next time judge tries it alone)


(3) New Brunswick v. G.(J.): it was a breach of s. 7 not to provide legal aid to parent whose children were subject of removal proceedings to bring them under the wardship of the state. Failure to provide legal aid was said to be justified by the need to control govt expenditures. (4) Nova Scotia v. Martin: standard program violated equality rights of workers who suffered from chronic pain and could not be justified under s. 1 on basis of cost or admin expediency. (5) Newfoundland v. NAPE: held that financial crisis of province supplied a sufficiently important objective to justify the limit on the female workers equality rights. (only case where Court accepted saving of govt money is a sufficiently important objective to justify limit on charter right - discrimination on basis of sex in breach of s. 15 charter) 9. Rational connection (part 2 of Oakes test) a) Definition: assess how well legislative garment has been tailored to suit its purpose. (1) Oakes: law failed rational connection requirement. At issue was validity of provision of federal Narcotics Control Act, provided that proof that accused was in possession of illegal drug raised presumption that accused was in possession for trafficking. effect, burden on accused for proving that he was not in possession for purpose of trafficking. Held reverse onus infringed 11(d) which guarantees presumption of innocence. - objective was to protect society from drug trafficking. Law failed rational connection test b/c need rational connection btn basic fact of possession and presumed fact of possession for purpose of trafficking. Held, reverse onus clause could not be justified under s. 1, thus, unconstitutional. Test stopped right there, no #3 (2) Benner v. Canada: held it was breach of equality rights to impose tough requirements for canadian citizenship on person born before 1977 to canadian mother than born to father. No rational connection between objective (protect agains dangerous persons thru security check) and the discrimination. Children of canadian mothers could not rationally be more dangerous than canadian fathers. Test stopped right there, no #3. (3) GVTA: Canadian Federation Students: b) Causation: essence of rational connection is a casual relationship btn the objective of the law and the measures enacted by the law. RJR-MacDonald v. Canada: banned ads on tobacco limiting freedom of expression, to reduce consumption of tobacco. Held failed minimum impairment test, there was a rational connection test, satisfied b/c of common sense connection btn advertising and consumption (reason, logic). 10. Least drastic means (part 3 of Oakes test) a) Minimum impairment: law should impair as little as possible the right/freedom in question. Idea is, the law should impair the right no more than is necessary to accomplish the desired objective; or law should pursue objective by least drastic means. (1) Examples: prohibition on use of english language on commercial signs too drastic a means to protect french language; prohibition on dentists from advertising too drastic a means to protect high professional standards; federal ban on ads of tobacco too drastic a means from curtailing consumption of tobacco. (2) In all cases, other laws were available to enacting legislative body which would still accomplish desired objective but would impair charter right less than the law that was enacted. (3) Dunmore v. Ontario: held exclusion from ontarios labor relations statute of agricultural workers was a breach of workers freedom of association guaranteed by s. 2(d). Exclusion failed least drastic means (minimum impairment) test b/c it was a total exclusion. Some other regime of labor law that did not include rights to collective bargain and to strike could have been devised and enacted for agricultural workers. b)Margin of appreciation: (1) R.v.Edwards Books and Art: recognized a margin of appreciation which would tolerate a variety of different sundayclosing laws. Case after this applied requirement in a flexible fashion, looking for a reasonable legislative effort to minimize the infringement of the charter right. Court upheld sunday closing laws. Law infringed freedom of religion but justified under s. 1. Objective of law to provide common day of rest, sufficiently important to justify overriding charter right. (a) Question was whether law satisfied lease drastic means. Law contained sabbatarian exemption for those who observed saturday as sabbath, but only small employers were entitled to that exemption. whether law made adequate accommodation of those who observe saturday. (b) Test was whether law abridged freedom of religion of saturday observers as little as possible. The exemption represents effort on part of legislature, accordingly its permissible. (2) Canadian newspapers co v. attorney general of canada: court upheld crim code provision authorizing court order banning the disclosure of the identity of complainant in sexual assault case. Only mandatory ban would provide assurance that identify would not be disclosed. (3) British columbia government employees union v. AG of BC: held injunction limited freedom of expression (no picketing at court) by least drastic means b/c union free to picket at workplaces other than courts. (4) Prostitution reference: law that made communicating for purposes of prostitution, upheld and passed lease drastic means test; justified by objective of eliminating the nuisance of street solicitation.


11. Proportionate effect (part 4 in Oakes test): requires proportionality between the effects of the measures which are responsible for limiting the charter right/freedom and the objective which has been identified as of sufficient importance. Requires balancing of objective sought by law against infringement of the Charter. Asks whether charter infringement is too high to pay for the benefit of the law. a) An affirmative answer to the 1st step will always yield an affirmative answer to 4th step. b) Analysis example: a legislative objective may (in principle) be sufficiently important to justify limiting right (step 1) but least drastic means of accomplishing objective may still have too drastic an effect on persons rights for the law to be a reasonable limit under s. 1 (step 4) Step 4 would be decisive in denying s. 1 justification to the law. Alternatively, objective is not in fact important enough to justify limiting rights, then step 2,3,4 would not be reached. c) Alberta v. Hutterian Brethren of Wilson Colony: law required photo of holders of drivers license. Law limited freedom of religion of HB b/c they believed bible forbade them from having their photographs taken. Held, law justified under s. 1. Law passed first three parts of Oakes test. 4th step satisfied b/c the salutary effects of universal photo requirement outweighed the deleterious effects on claimants religious rights. (1) 4th part takes into account the severity of the deleterious effects of a measure on individuals or groups. Test examines effects upon human rights. Balance values and interests. 12. Application to equality rights: Andrews v. Law Society of BC: citizenship requirement for qualification for admission to legal profession infringed s. 15 of Charter. Majority struck down citizenship requirement. Decision limited scope of s. 15 confining it to discrimination based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability, and analogous grounds. Oakes test is appropriate for s. 15 cases given that s. 15 designed to protect groups that suffer social, political, and legal disadvantage in our society. 13. Application to qualified rights: a) Scope of s.1: section 1 generally plays a role in justifying infringements of rights that are by their own terms qualified by notions of reasonableness or regularity. b) Section 7: protects right not to be deprived of life, liberty, security of person. (1) BC Motor Vehicle Reference: Limit that violated this can be upheld only in cases arising out of exceptional conditions, like natural disasters, outbreak of war, epidemics, and the like (2) R.v. Morgentaler: law that made abortion an offense could not be justified under s. 1 c) Section 8: guarantees right to be secure against unreasonable search and seizure. It is possible for law to fail requirement of reasonableness in s 8 and still pass reasonableness in s.1 (1) Hunter v. Southam: unreasonable is different than reasonable in s. 1 d) Section 9: guarantees right not to be arbitrarily detained or imprisoned. (1) R.v.Hufsky: case involved charter challenge to a spot-check program by police under which cars stopped at random at a check point to check for drunkenness and other traffic violations. Held, person arbitrarily detained when stopped in breach of s9 but justified under s. 1. objective was to prevent highway accidents was sufficiently important to justify arbitrary detentions. e) Section 11: right to be informed w/o reasonable delay of specific offenses, to be tried w/n reasonable time, not be denied reasonable bail w/o just cause. It is possible for law to fail requirement of reasonableness in s. 11 and still pass reasonableness in s.1 Sec 11(d) which guarantees the right to a trial by an independent and impartial tribunal is in a special situation. f) Section 12: right not to be subject to cruel and unusual punishment. Might be the only absolute right that cannot be justified under s.1 14. Application to common law: rule of the common law may be a limit prescribed by the law under s. 1 a) R.v.Swain: applied Oakes test to common law rule that prosecutor may adduce evidence of the insanity of the accused against the wish of the accused. Rule was violation of s. 7 b/c evidence of insanity if led by crown, limited accuseds right to control his defense. Held rule failed least drastic means part of Oakes, thus cannot be upheld under s. 1 (1) Statute law that violated charter would be struck down. Common law that violated it can be amended by the court itself. A less drastic rule that would satisfy s. 2 would allow crown to adduce evidence of insanity only after the accused had been found guilty of the offense. The rule was immediately transformed into a new rule that was compatible w/ the charter. b) R. v. Daviault: Held that common law rule that self induced intoxication was no defense to criminal charge under s. 7 and 11(d). Court construct new rule immediately that extreme intoxication was a defense, established by accused on balance of probabilities. Onus of proof on accused was breach of 11(d) but justified under s. 1 (analysis did not follow Oakes test) c) Court has held that Charter applies indirectly to common law b/c Court will examine whether the common law is consistent w/ Charter values and if not, Court will modify the common law to make it consistent w/ Charter values. d) Hill v. Church of scientology: not appropriate to apply traditional s. 1 analysis in cases where charter was not directly applicable (defamation)


15. Emergency measures: War Measures Act repealed and replaced by Emergencies Act. court will have to decide in situation of emergency whether such restrictions are reasonable and demonstrably justified in a free and democratic society. 16. R. v. Oakes: a) First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom" b) Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. (1) This involves "a form of proportionality test" Three important components of a proportionality test: 1) measures must be rationally connected to the objective. 2) the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: 3) There must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and 4) objective which has been identified as of "sufficient importance". c) Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. d)Analysis: (1) The objective of protecting our society from the grave ills associated with drug trafficking, is, in my view, one of sufficient importance to warrant overriding a constitutionally protected right or freedom in certain cases (2) s. 8 does not survive this rational connection test. It would be irrational to infer that a person had an intent to traffic on the basis of his or her possession of a very small quantity of narcotics. The presumption required under s. 8 of the Narcotic Control Act is overinclusive and could lead to results in certain cases which would defy both rationality and fairness. e) Conclusion:Having concluded that s. 8 does not satisfy this first component of proportionality, it is unnecessary to consider the other two components. 17. Alberta v. Hutterian: a) Test (1) Is the limit prescribed by law: Section 1 requires that before a proportionality analysis is undertaken, the court must satisfy itself that the measure is prescribed by law. If a limit on a Charter right is not prescribed by law it cannot be justified under s. 1. Rather, it is a government act, attracting a remedy under s. 24 of the Charter. Regulations, passed by Order in Council and applied in accordance with the principles of administrative law and subject to challenge for constitutionality, are the life blood of the administrative state and do not imperil the rule of law. Whether the impugned measure was passed into law by statute or regulation is usually of no consequence for the s. 1 analysis (2) Is the Purpose for Which the Limit Is Imposed Pressing and Substantial? Maintaining the integrity of the drivers licensing system in a way that minimizes the risk of identity theft is clearly a goal of pressing and substantial importance, capable of justifying limits on rights. The purpose of a universal photo requirement is to have a complete digital data bank of facial photos to prevent wrongdoers from using drivers licences as breeder documents for purposes of identity theft. the fact that the specific objectives of the impugned regulation were not debated or ratified by the legislature does not render them invalid for the purposes of s. 1. If a regulation is validly enacted pursuant to delegated legislative authority, its objective can properly be evaluated under the test established in Oakes. (a) Conclude that the Province has established that the goal of ensuring the integrity of the drivers licensing system so as to minimize identity theft associated with that system is pressing and substantial. (3) Is the Means by Which the Goal Is Furthered Proportionate? (a) Is the Limit Rationally Connected to the Purpose? To establish a rational connection, the government must show a causal connection between the infringement and the benefit sought on the basis of reason or logic. The connection must be established on a balance of probabilities i) 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. Province has established that the universal photo requirement is rationally related to its goal of protecting the integrity of the drivers licensing system and preventing it from being used for purposes of identity theft (b) Does the Limit Minimally Impair the Right? Analysis is whether the limit on the right is reasonably tailored to the pressing and substantial goal put forward to justify the limit. Whether there are less harmful means of achieving the legislative goal. In making this assessment, the courts accord the legislature a measure of deference, particularly on complex social issues where the legislature may be better positioned than the courts to choose among a range of


alternatives. The impairment must be minimal, that is, the law must be carefully tailored so that rights are impaired no more than necessary. i) The question, therefore, is whether the means chosen to further its purpose the universal photo requirement for all licensed drivers is reasonably tailored to address the problem of identity theft associated with drivers licences. ii) Conclude that the universal photo requirement minimally impairs the s. 2( a) right. It falls within a range of reasonable options available to address the goal of preserving the integrity of the drivers licensing system. 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. iii) Where the validity of a law of general application is at stake, reasonable accommodation is not an appropriate substitute for a proper s. 1 analysis based on the methodology of Oakes. Where the government has passed a measure into law, the provisions of s. 1 apply. The government is entitled to justify the law, not by showing that it has accommodated the claimant, but by establishing that the measure is rationally connected to a pressing and substantial goal, minimally impairing of the right and proportionate in its effects. (c) Is the Law Proportionate in Its Effect? are the overall effects of the law on the claimants disproportionate to the governments objective? Oakes: Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. (further inquiry below): i) Salutary Effects associated with the legislative goal: (1) enhancing the security of the drivers licensing scheme; (2) assisting in roadside safety and identification; and (3) eventually harmonizing Albertas licensing scheme with those in other jurisdictions. The salutary effects of the universal photo requirement for drivers licences are sufficient, subject to final weighing against the negative impact on the right, to support some restriction of the right ii) Deleterious Effects: the seriousness of the effects of the limit on Colony members freedom of religion falls to be addressed. The seriousness of a particular limit must be judged on a case-by-case basis. Conclude that the impact of the limit on religious practice imposed by the universal photo requirement for obtaining a drivers licence is that Colony members will be obliged to make alternative arrangements for highway transport. This will impose some financial cost on the community and depart from their tradition of being self-sufficient in terms of transport. These costs are not trivial. But on the record, they do not rise to the level of seriously affecting the claimants right to pursue their religion. They do not negate the choice that lies at the heart of freedom of religion. iii) Weighing the Salutary and Deleterious Effects: to determine whether the overall impact of the law is proportionate. While the limit imposes costs in terms of money and inconvenience as the price of maintaining the religious practice of not submitting to photos, it does not deprive members of their ability to live in accordance with their beliefs. Its deleterious effects, while not trivial, fall at the less serious end of the scale. Conclude that the impact of the limit on religious practice associated with the universal photo requirement for obtaining a drivers licence, is proportionate. b) Conclusion: 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. The goal of minimizing the risk of fraud associated with drivers licences is pressing and substantial. The limit is rationally connected to the goal. The limit impairs the right as little as reasonably possible in order to achieve the goal; the only alternative proposed would significantly compromise the goal of minimizing the risk. Finally, the measure is proportionate in terms of effects: the positive effects associated with the limit are significant, while the impact on the claimants, while not trivial, does not deprive them of the ability to follow their religious convictions. G. FREEDOM OF CONSCIENCE AND RELIGION - Ch. 42 1. Distribution of powers: R.v.Edwards Books and Art: Court upheld prov legislation that prohibited retail stores from opening on Sundays. Law w/n prov power over property and civil rights b/c pursued secular purpose of providing a pause day for retail workers, rather than religious purpose of observing Christian sabbath. Contained exemption for stores of less than certain size that observed Sunday as holiday. Religious purpose of exemption did not render law unconstitutional. Held: legislation concern religious is competent to both prov or fed powers, depending on characteristics of the law.


2. Section 2(a) of the Charter: guarantees to everyone the fundamental freedom of conscience and religion. Subject to s. 1 - law that limits this will be invalid if w/n reasonable limits prescribed by the law and demonstrably justified in a free and democratic society. 3. Freedom of conscience: protects systems of belief which are not theocentric (centered on deity) and which might not be characterized as religious for that reason. 4. Freedom of religion: a) R.v.Big M Drug Mart: Court struck down Lords Day Act, fed statute that prohibited commercial activity on Sunday. Held purpose of the Act, was to compel observance of the Christian Sabbath. Purpose was infringement on freedom of religion of non-Christians. Protects religious practices and beliefs. b) Employment division department of HR of Oregon v. Smith (US Case): if law included peyote on list of banned drugs and made no exception for sacramental use. Law had effect of prohibiting a religious practice, if law that had as its object to burden religious practice then law would be invalid. But law which has an incidental effect of generally applicable and other valid provision, law will be valid as applied to religious ceremony. 5. Sunday observance: a) R.v.Edwards Books and Art: held that law infringed 2(a) b/c its effect was to impose an economic burden on those retailers who observed a sabbath on a day other than Sunday. Effect created competitive pressure to abandon a non-Sunday sabbath which was an abridgement of freedom of religion. But law was valid under s. 1. secular purpose of providing a pause day was sufficient important to limit freedom on religion. Use least drastic means of accomplishing its objective (min intrusion on freedom of religion): yes b) Aftermath: the Act removed size limits on exemption and took Dissents opinion by exempting any retail store that closed on any day than Sunday b/c of religion of owner, such store was free to open on Sunday. 6. Other religious practices: extent to which freedom of religion entails the tolerance of other minority religious practices. Freedom of religion would not protect minority religious groups from practices as human sacrifice, refusals of schooling or medical treatment of children. However, there are others, such as, refusing to salute flag or sing national anthem, chanting a mantra, holding land communally. These practices would be tolerated. Where there are no compelling govt interest to contrary 2(a) of Charter would require the law to accommodate minority religions by according exemptions for their practices. a) Young v. Young: judge granted custody to mother of 3 and access to father but w/ restriction that father not discuss Jehovahs witness with children or take them to service b/c views not shared by mother & source of conflict btn them. Court held restriction would offend freedom of religion unless it can be shown restriction was needed to avoid a risk of substantial harm to the children. Evidence established no such risk, restriction should be struck down. b) B(R). v. Childrens Aid Society: Court held that decision of parents to prohibit doctors from giving blood transpart to baby was protected by freedom of religion. However, statutory procedure was justified under s. 1 Religion does not include imposition on child of religious practices which threaten the safety, health or life of the child. c) Ross v. New Brunswick School District No. 15: (1) Facts: Teacher Ross publicly disseminated opinion that christian civilization being destroyed by jewish conspiracy. Removed from teaching position by order of board of inquiry constituted under New Brunswick human rights statute. Board after hearing evidence found schools failure to dismiss/discipline Ross amounted to discrimination in provision of education services. (2) Held: Court held board of inquirys order infringed Rosss freedom of religion (and expression), however, most of boards order justified under s. 1 as measure to remedy anti-semitic environment in school. This justified removal from teaching position to non teaching position in school, but did not justify part of order that required Ross to be dismissed from non teaching position if he resumed his anti semitic activity - this part unconstitutional and severed from the order. d) Syndicat Northcrest v. Amselem: (1) Facts: right claimed by condominium owners who were orthodox Jews to build temporary dwellings (succahs) on balconies of apartments where they would live for 9 days each year during festival of Succot. By laws prohibited construction on balconies, had aesthetic purpose of preserving harmonious external appearance of building and practical purpose of keeping balconies free of obstruction as fire escape routes. Other owns sought injunction to prevent. (2) Issues: 1) Whether bylaws infringe freedom of religion of appellants, 2) if so, whether justified under s. 1 3) whether appellants signing declaration of co ownership waived rights to freedom of religion (3) Reasoning: (a) Definition of religious practice -- claimant sincerely believed that the practice was of religious significance. This was a subjective test, inquiry into sincerity to be limited as possible for individuals change and so can their beliefs. (b) Person also has a constitutional right to act on those views. The religious views trumped the by laws. Claimants had no choice but to sign the agreement to by laws in order to live in that building.


(c) Sincerity of belief simply implies an honesty of belief and the courts role is to ensure that a presently asserted belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. (d) Assessment of sincerity is a question of fact that can be based on criteria including the credibility of a claimants testimony, as well as an analysis of whether the alleged belief is consistent with his or her other current religious practices. (e) Since the focus of the inquiry is not on what others view the claimants religious obligations as being, but what the claimant views these personal religious obligations to be, it is inappropriate to require expert opinions. It is also inappropriate for courts rigorously to study and focus on the past practices of claimants in order to determine whether their current beliefs are sincerely held (f) (goes to #2 of analysis - interference): The alleged intrusions or deleterious effects on the respondents rights or interests under the circumstances are, at best, minimal and thus cannot be reasonably considered as imposing valid limits on the exercise of the appellants religious freedom. The exercise of the appellants freedom of religion, which I have concluded would be significantly impaired, would clearly outweigh the unsubstantiated concerns of the co-owners about the decrease in property value. The potential annoyance caused by a few succahs being set up for a period of nine days each year would undoubtedly be quite trivial. set up their succahs in such a way that they would not block any doors, would not obstruct fire lanes, [and] would pose no threat to safety or security in any way. (g) Waiver: Doctrine allows party to invoke sincerely held freedom of religion belief to ignore contractual obligation that promisor freely made but no longer wishes to keep. 1) Waiver of any right must be voluntary, freely expressed and with a clear understanding of the true consequences and effects of so doing if it is to be effective. Had no opportunity to negotiate the mandatory residence stipulation, the Court held that she could not be taken to have freely given up her right to choose where to live. 2) waiver of a fundamental right such as freedom of religion, if possible at all, presumably need not only be voluntary; it must also be explicit, stated in express, specific and clear terms. (4) Test for Freedom of Religion (analysis: (a) Freedom of religion is triggered when a claimant demonstrates that he or she sincerely believes in a practice or belief that has 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) (b) Once religious freedom is triggered, a court must then ascertain whether there has been nontrivial or non-insubstantial interference with the exercise of the implicated right so as to constitute an infringement of freedom of religion under the Quebec (or the Canadian) Charter. (5) Dissent: should be defeated by the contract w/ co owners. Had a choice to live else where and undertook contract w/o reading the rules of this building. (6) Conclusion: claimants entitled to erect their succahs in defiance of by-laws, provided that the succahs remain only for the limited time necessary in this case nine days , allow for an emergency access route, and conform, as much as possible, with the general aesthetics of the property. I also find the argument that the appellants waived their religious rights cannot be maintained under the circumstances, nor did they implicitly agree not to set up succahs on their balconies by signing the declaration of co-ownership. (7) Held: Appeal should be allowed. e) Congregation des Temonins de Jehovah v. Lafountaine: one JW applied to municipality of Lafontaine for permission to build a place of worship on parcel of land that located in residential zone in which such place was prohibited. To comply with request, zoning by law would have to amend, this is a long cumbersome process. (1) Held: Court sent issue back to municipality to reconsider its decision not to set in train the process for amending the zoning by law. Proposal to build factory or office building would not require such intensive consideration by a municipality. (2) Dissent: building place of worship was protected by freedom of religion, and municipality would come under constitutional duty to amend if there was no land available to build place of worship.However, here, there was another parcel of land available in zone where church can be built. Not entitled to build it wherever they want and cannot insist on changing by law to accommodate preference of location Thus, by laws did not breach freedom of religion. f) Multani v. Commission scolaire Marguerite-Bourgeoys: issue: whether 13 year old sikh boy was constitutionally entitled to wear kirpan to public school in face of board regulation that prohibited students from bringing weapons an other dangerous objects to school. (1) Reasoning: to limit his freedom of religion as little as possible, she ordered school to permit wearing it, but be kept in wooden sheath and sewn into clothes so cannot be easily removed. Do not need high safety in schools like in courtrooms or airports.


(2) Held that regulation infringed the students freedom of religion, found student sincerely believed his religion, his subjective belief was sincere. He refused to wear a symbolic kirpan (wanted to wear the metallic one). Regulation violated s. 2(a) g) Alberta v. Hutterian Brethren of Wilson Colony: (1) Facts: colony brought action to obtain exemption on religious grounds from requirement of prov law that drivers license must display photo of holder. Believe taking photo is prohibited by bible. Purpose for photo is to enable cops to identity driver in accident or suspected of driving offense, confirm holder. Allowed exemption for religious groups from 1974 to 2003 but then amended law and established data bank of photos to prevent identity theft, then all citizens had to be photographed. (2) Held: colony had sincere religious belief and protected by 2(a), however, universal photo requirement was justified under s.1, served important purpose and did not impose severe burden on claimants. Not entitled to exemption. Requirement was a reasonable limit on freedom of religion. 7. Waiver of religious practices: a) Syndicat Northcrest v. Amselem: read above. The religious views trumped the by laws. Claimants had no choice but to sign the agreement to by laws in order to live in that building. Doctrine allows party to invoke sincerely held freedom of religion belief to ignore contractual obligation that promisor freely made but no longer wishes to keep. b) Bruker v. Marcotvitz: (1) Facts: H and W get divorce and have an agreement for a get before jewish Rabbical court. (H agrees to divorce and W gets it, If H refuses, W is agunah or a chained wife any new marriage will be treated as adulterous and children as illegitimate) H refused for 15 years after divorce in canadian civil law, W brought action for breach of K. H alleges freedom of religion. (2) Reasoning: By entering into corollary relief agreement, H converted religious right to withhold the get into a contractual obligation to grant the get. He was bound by K to fulfil that obligation despite religious aspect. A Contract that waived a right to a religious practice would not be enforced if it were contrary to public policy to do so (equality, religious freedom, autonomous choice in marriage/divorce) (3) Held: rejected Hs argument and upheld award for damages for breach of K against H. 8. Religion in public schools: a) Zylberberg v. Sudbury Board of Education: Challenge for regulation (Ont law) that required public school to open/close w/ religious exercise of reading scriptures. Held by appeal court regulation unconstitutional b/c imposed christian observances upon non christians and religious observances on non believers. Not saved by fact that regulation was wide enough to include non christian prayers. Even if accepted non christian exercises, this school only had Christian exercises. Regulation exerted an indirect coercion on pupils to participate, b/c of the pressure to conform to the majoritys norms, it would make it difficult for minority pupil to claim exemption b) Canadian civil liberties association v. Ontario: law required public school to devote 2 period per week to religious education and parent would have to apply to principal for exemption. Law struck down. Regulation unconstitutional attempt to impose majority christian beliefs on all children, not saved from provision of exemption, parents would be reluctant to utilize for fear of embarassing their children. c) Cases took view that embarassment of non conformity did operate as significant practical barrier to exercise by minority children. Programs of religious exercises in public schools will normally violate guarantee of freedom of religion. Would not violate it if there is a course on religion that examined various religions in a neutral way, not promoting any one religion or assuming the superiority of any one religion 9. Denominational schools: private school may offer religious exercises. Court has implied that 2(a) requires province to permit children to be educated outside secular public system although province must have the right to regulate alternative schools, denominational schools, to ensure that a core curriculum and adequate facilities and standards of teachings are offered. a) Catholic and protestant schools are recognized by s. 93 and may receive public funding that is denied to schools of religious denominations not recognized by s. 93. b) Alder v. Ontario: Held that a province failure to fund the schools of religious denominations not recognized by s. 93 was not a breach of freedom of religion under 2(a) or of equality under 15. 10. Religious marriage: as long as statutory formalities observed - obtaining license before ceremony and registration afterwards, both civil and religious ceremonies lead to valid marriages. Civil marriages provided for all who want to marry and have capacity. Religious can be denied if you do not adhere to that faith. a) Right to refuse to perform a religious ceremony that would by contrary to a particular faith (church that does not recognize divorce may refuse to marry two divorced people). b) Same-Sex Marriage Reference:


(1) Reasoning: Provision (act does not interfere w/ religion freedom to refuse to perform marriages) was ultra vires parliament b/c related to solemnization of marriage which was provincial head of power under 92(12). Protection intended by the invalid section was provided by 2(a) Charter. (a) Court said: performance of religious rites is a fundamental aspect of religious practice, therefore, absent unique circumstances, guarantee of religious freedom in s 2(a) of Charter is broad enough to protect religious officials from being compelled by state to perform civil or religious same sex marriages that are contrary to their religious beliefs. (b) Means that provinces could not use their power over solemnization of marriage to compel a religious offical to perform same sex marriage ceremony that would be contrary to his religious beliefs. (2) Held that parliament could enact bill legalizing same-sex marriage for civil purposes, under its power over marriage in s. 91(26) of the Constitution Act 1867. Bill enacted. 11. Syndicat Northcrest v Amselem: Look at notes above. 12. Reference re Same-Sex Marriage a) Issue: whether s. 1 of the proposed legislation, considered in terms of its effects, is consistent with the guarantee of freedom of religion under s. 2(a) of the Charter. (1) It is argued that the effect of the Proposed Act may violate freedom of religion in three ways: (a) The Proposed Act will have the effect of imposing a dominant social ethos and will thus limit the freedom to hold religious beliefs to the contrary; (b) The Proposed Act will have the effect of forcing religious officials to perform same-sex marriages; and (c) The Proposed Act will create a collision of rights in spheres other than that of the solemnization of marriages by religious officials. b)Reasoning: (1) The potential for collision of rights raised by s. 1 of the Proposed Act has not been shown on this reference to violate the Charter. It has not been shown that impermissible conflicts conflicts incapable of resolution under s. 2(a) will arise. (2) Will create a collision of rights in spheres other than that of the solemnization of marriages by religious officials: (a) State compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter. It also seems apparent that, absent exceptional circumstances which we cannot at present foresee, such a violation could not be justified under s. 1 of the Charter (b) Absent unique circumstances with respect to which we will not speculate, the guarantee of religious freedom in s. 2( a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages that are contrary to their religious beliefs. 13. Alberta v Hutterian Brethren of Wilson Colony: Colony believe that permitting their photo to be taken violates the Second Commandment a) McLachlin C.J - Analysis: (1) The Nature of the limit on sec 2(a) right: The broader impact of the photo requirement on the Wilson Colony community is relevant at the proportionality stage of the s. 1 analysis, specifically in weighing the deleterious and salutary effects of the impugned regulation. The extent to which the impugned law undermines the proper functioning of the community properly informs that comparison. Community impact does not, however, transform the essential claim that of the individual claimants for photo-free licences into an assertion of a group right (2) Rule: 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 b)Abella J. - Analysis: (1) The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates. (2) Moreover, it is important to recognize that freedom of religion has both individual and collective aspects. Charter protects group rights as well as individual rights, the assertion of a group right is based on the claim of an individual or group of individuals because of membership in a particular identifiable group. when the Charter protects group rights such as freedom of religion, it protects the rights of all members of the group. (3) ight to freedom of religion cannot yield to a state objective whose benefits outweigh the harm to the right. The assertion of a sincere religious belief or duty does not end the inquiry: In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom to manifest ones religion or belief in order to reconcile the interests of the various groups and ensure that everyones beliefs are respected (4) The nature of the religious right asserted will also be of relevance in balancing benefits and harms.


H. FREEDOM OF EXPRESSION - Ch. 43 1. Distribution of powers a) Classification of laws: political speech assigned to fed, other kinds of speech distributed btn both levels of govt. Commercial advertising is prov incident to sale of goods. Advertising is a federally regulated medium - radio, tv. General prohibition of false or misleading advertising could be enacted by the fed parliament as criminal law. b) Political speech: is within federal power. Regulation of political speech which can be seen as denial of fundamental freedom of national dimensions, is competent only to fed, either under criminal law power or peace, order, and good govt power. c) Provincial power: regulate commercial or local grounds; ex: defamation. Advertising-part of business and consumer protection. Prov power to regulate speech or assembly in local parks, streets, and to regulate speech in media that comes w/n prov jdx: censorship of films, theatre, books, magazines, newspapers, tapes, records. (McNeil & Dupond) d) Federal power: regulate pol speech and make certain speech criminal: sedition, fraud, obscenity, hate propaganda, communicating for purpose of prostitution. Regulate speech in media that comes w/n fed jdx: radio, television. 2. Section 2(b) Charter: guarantees freedom of though, belief, opinion, expression - freedom of press, media. S. 1 scrutiny: 1) has purpose or effect of violating 2b, 2) whether law satisfies standards of justification of s. 1 3. Reasons for protecting expression: 1) Rationale for protection of freedom of expression is its role as an instrument of democratic government - essential to working of a parliamentary democracy. 2) Its role as an instrument of truth. 3) Its role as an instrument of personal fulfillment (covers what is not speech; limited to communicative purpose) a) R.v.Sharpe: child pornography crim law, but speech found to have personal fulfillment. But law justified under s. 1. 4. Meaning of expression a) Definition of expression: activity is expressive if it attempts to convey meaning. (all forms of art, novels, plays, films, paintings, dances, speakers choice of language, parking a car if done w/ expressive purpose - protest against parking regulations) b) Criminal expression: communicating for purpose of prostitution, which was an offense, protected under 2(b) expression. Hate propaganda, defamation, fraud. So long as activity is communicative and falls short of direct infliction of violence, protected under 2(b) (but criminalizing law may be justified and upheld under s. 1) c) Violence: expressive activity that takes form of violence is not protected under 2(b). Murder, rapist not protected, neither is the challenge of deportation for violence. Threats of violence are protected, can be a threat by reference to content and there are no content-related restriction on 2(b) right. d) Content neutrality: content of statement cannot deprive it of the protection accorded by s. 2(b) no matter how offensive it may be. Principle of content neutrality means that 2b extends to much activity that is not worthy of constitutional protection. (1) Keegstra: promotion of hatred against jews, criminal code, protected under 2b, offense upheld under s. 1 (2) Zundel: offense to publish false info: denying holocaust. Reversed for unconstitutional law b/c content neutrality principle. (3) Lucas: deliberate falsehoods protected (defamation), but upheld prohibition under s. 1 as justifiable means of protecting reputation from false attack (4) JTI-Macdonald Corp: false advertising of tobacco products, protected under 2, but upheld under 1 b.c harmful to health and of low value 5. Ways of limiting expression a) Prior restraint: is a law that prohibits the publication of particular material either absolutely or under a requirement of prior approval by a censor. (1) Censorship of films, restriction on importing books magazines, restrictions on access to courts, reporting of judicial proceedings, publication ban on fictional television program, publication of public opinion polls in final 3 days of election campaign, election advertising on polling day, charitable solicitation w/o govt permission, access to public property = Held, that prior restraint was limit on freedom of expression. (2) Held restriction on election campaign expenditures is a form of prior restraint that is prohibited by 2(b). General standards of s. 1 justification are applicable to prior restraints, and many prior restraints have been upheld under 1. b) Border control: prohibition on importation of pornographic books/magazines. Can be stopped, confiscated at border, and tariff on materials. Obscene materials justify criminal offense for possessing materials. Criminal offense valid limitation on freedom of expression under s. 1. (1) Littler Sisters Book and Art Emporium v. Canada: challenged prohibition in Customs, attacked definition of obscene, and customs review procedures which disproportionately held gay literature. Held prohibition on obscenity, having upheld under s. 1, could be used at the Border. Prohibition by customs was unconstitutionally discriminatory against gay literature, but this outcome was not inherent in definition of obscenity. Directed govt to repair problems: resources, training, direction,


procedure, led to delays, seizures, and confiscations of their books. Legislation did not have to be amended b/c failures at implementation level and could be addressed at that level. c) Penal prohibition: upheld under s1 advertising tobacco, communicating for prostitution, defamatory libel, hate propaganda. Ban on telephone messages spreading hate against minorities violates 2b but justified under 1. (1) Ross: board breached 2(b) in removing teacher from position to non-teaching b/c of anti-semitism. Justified under 1. But ordering to dismiss from non teaching if continued activities was unjustified breach of 2b. d) Civil prohibition: prohibition on expression that is sanctioned by only a civil remedy - defamation, contract. Party can recover damage or other civil remedy: injunction. If between private parties, no Charter application to common law. If Civil prohibition created by statute, Charter applies and prohibition will offend 2b. e) Forced expression: forced by law to make a statement. (1) RJR MacDonald: fed stat required tobacco to be sold in packages w/ warnings of health dangers; warnings were unattributed, so made it seem like it was from mfc, not fed govt. Held requirement of unattributed warnings was breach of 2b on basis that freedom of expression entails right to say nothing or right not to say certain things. Simple requirement of health warnings could be justified under 1 but govt failed to establish justification for non attributed warnings - warnings struck down. (2) JIT Macdonald Corp: warnings attributed to health canada on cigarette packs limited space on box, interfered w/ how mfr want to express themselves. 2b was infringed by warning requirement but justified under s. 1 Infringe could be less if size of warnings were less but evidence shows bigger warnings may have greater effect. Parliament not required to implement less effective alternatives. f) Language requirement: quebec law requiring public signs and ads to be in french struck down as violating of 2b. Freedom of expression includes freedom to express oneself in language of ones choice. Devine: law requiring non exclusive use of french for brochures, orders, invoices, business docs; had to be in french but engl could be used too. Held to be in breach of 2b, but upheld non exclusive requirement under s. 1 g) Search of press premises: no breach of 2(b), in issuing search warrant to obtain film taken by tv crews of a crime in progress. h) Time, manner, and place: law might prohibit cartoons in ads, authorize official to stipulate time, place and route of parade. These laws restrict expression, and violate 2(b), but because the do not regulate content of expression, a court would likely uphold laws under s. 1 (1) Ramsen v. Peterborough: ban on postering was too broad to be upheld under s. 1. Law prohibited posters on municipal public property. Narrow by law w/ targeting concerns such as littering, aesthetic blight, traffic hazards, implements to persons repairing utility poles, would be upheld. (2) Thompson Newspapers: struck down prohibition on publication of new opinion polls during last 3 days of elections campaigns - purpose to prevent voters from being mislead by inaccurate polls. Measure too severe. (3) KMart Canada: struck down provision that prohibited striking union from handling out leaflets at workplaces, other than the struck premises. (like postering, leaflets is a traditional way of communicating info by poorly funded groups). (4) Pepsi-Cola: Held, common law did not authorize an injunction that applied to all secondary locations regardless of the nature of the picketing activity. To protect freedom of expression, only a more limited injunction could be issue one that was premised on commission of a wrongful act. 6. Commercial expression a) Protection of commercial expression: designed to promote the sale of goods and services (ads). Balancing the value of free expression against the value of consumer protection has to take place w/n s. 1 b) Language requirements: Ford v. Quebec: language-of-signs law violated 2(b) by prohibiting signs in English language, not justified under 1 b/c although pursued important purpose, (protection of french) it impaired rights of english speakers more than was necessary to accomplish its purpose. c) Advertising restrictions: Irwin Toy: protection of vulnerable group, children, sufficiently important purpose to allow leeway in accomplishing purpose by banning ads directed at children through cartoons. (1) Rocket: object of restriction is to maintain dignity of learned profession. Held dental regulation violated 2b, regulation was far broader than necessary to accomplish purpose (cannot advertise office hours, languages spoken) Struck down regulation. (2) RJR MacDonald: Act banned ads of cigarettes. Act not justified under 1 and unconstitutional. Would have upheld if it carefully targeted new smokers, ads directed at young people or ads associated w/ attractive lifestyle. (3) New act was later justified in JTI Macdonald: limited exceptions for info ads and brand preference ads, provided not for life style ads and ands that could be appealable to young people. Health objective important and commercial expression restricted low value.


d) Signs: commercial signs protected under 2b, including signs on property w/ negative message against insurance corp. (R.v.Guignard). Vann Niagara v. Oakville: accepted bylaw that banned billboard signs throughout municipality - larger than 80 ft. Reasoning: large signs justified under s. 1 b/c more likely to cause distraction to motors and visual blight. e) Prostitution: is lawful in canada, but its an offense to communicate in a public place for the purpose of engaging in prostitution. Held that communication protected under 2b but justified and law upheld under s. 1 - eradicating the nuisance of street solicitation justified limit on expression. 7. Picketing: activity of members of a trade union on strike who will assemble outside a workplace, often carrying signs. It is communicative expression under 2b. Its a commercial expression since purpose is to encourage employees not to wrk and consumers not to buy (and advice public of strike). Can have implicit/explicit political expression. a) Orders limiting picketing will be saved to avoid spread of industrial dispute or to facilitate access to public facilitiy, or to reduce risk of violent confrontations, or other purpose. (1) Dolphin Delivery: challenged injunction prohibiting them from picketing at work place of firm that was not their employer. Held, charter had no application to dispute btn private parties that was governed by common law. Court refused to discharge injunction. Secondary picketing would be justified under s. 1 as measure to prevent industrial conflict from spreading beyond parties in dispute. (2) Vancouver Courthouse: justice saw strike on way to work at courthouse, issues injunction. Held, picketing was criminal contempt of court. Charter applied and injunction was limit of expression but justified under s.1 - assuring access to courts was important objective. b) UCFW v. KMart: no picketing, but giving out leaflets b/c on strike against KMart stores, to people entering/leaving KMart stores. Held prohibition of secondary picketing too broad, to prohibit peaceful distribution of leaflets who were not forming picket lines. Struck down prohibition on secondary picketing,. c) Pepsi-Cola: Dispute between 2 private parties, Charter not directly applicable, common law should be developed t obe consistent w/ Charter. One line of cases says no secondary picketing, other line says its allowed if its peaceful, and did not involve commission of wrongful act (crime, tort) Wrongful Act doctrine made no distinction between seconary or primary picketing. Court accepted wrongful act doctrine. (1) Held that secondary picketing at shops that sold pepsi was peaceful and did not involve commission of crime, tort, thus could not be enjoined despite harm to picketed business. But picketing of home of management amounted to tort of intimidation and could be enjoined. 8. Hate propaganda: material that promotes hatred against minorities, offense in criminal code. Purpose of ban to promote value of equality. Keegstra: teacher case above. Upheld law under s. 1. Zundel: held entitled to be acquittal b/c false news prohibition was unconstitutional. Doctrine of content neutrality protected falsehoods as well as truths, b/c whether statement true/false is determined by content of statement. Not justified under s. 1, law struck down. a) Distinction: Keegsra Law was directed at will-full promotion of hatred against groups. Zundel, false news law did not specify type of statement or injury to public interest. Too brad, that could not justify limit on freedom of expression. 9. Defamation: provides civil remedy for person whose reputation damaged by false statements. Under content neutral definition of expression, defendants freedom of expression is abridged by prohibition against statements that are both false and harmful. a) Hill v. Church of Scientology: Hill (crown attorney) sues Church after press conference, made allegations against him, for defamation. Jury award of $1.6 million, upheld by Court, refused to put cap. Held common law was consistent w/ charter values and did not have to be altered. Two competing values: personal reputation and freedom of expression. Held that f alse and injurious statements were not deserving of much protection. Reputation, related to right of privacy which should be accorded constitutional protection. Statement must be false. (1) Change in common law: expanded defense of qualified privilege. Now covers descriptions of contents of documents (pleadings), publicly filed in court even tho no hearing yet. b) Cusson v. Quan (Ont App Ct): cop volunteered in search for 9/11 survivors. Ottawa Citizen newspaper suggested he compromised the rescue effort. Sued newspaper and journalist. Issue: whether statements were protected by qualified privilege. Newspaper that fully investigated story and believed it to be true might still be deterred from publication by difficulty of proving truth of all facts in court. Solution: Public interest defense: where media defendant can show that it met standards of responsible journalism in publishing a story that public was entitled to know about, defendant will have a defense to defamation suit even if it turns out some published facts were untrue (or could not be proven true). c) Defense of fair comment: available to publisher of opinion as long as opinion is (1) Based on fact (2) Is related to a matter of public interest (3) Is one that an honest (but not necessarily reasonable) person would hold. (a) Test: whether anyone could honestly have held defamatory opinion based on facts.


d) WIC Radio v. Simpson: used above defense, on radio she criticized P implying she would condone violence against homosexuals. False and injured P. Statement was of opinion, not fact, so no demonstration of truth was called, defense of fair comment available. For 3rd requirement: P was conducting family compaigns to promote family in schools, against homosexuality. Could support honest belief. e) Neron v. Chambre des notaires: Guy wrote letter alleging errors in show. CBC aired and read parts of letter that P was wrong in. P awarded damages. Breach of professional standards b/c read part of letter that had false statements, not allowing P time to check up on them and retract them, and had a defense tone. Rule: in Quebec, fault is measured against professional journalistic practices (civil code). Any statement in media that lowers someones reputation, however true and important, will expose publisher to liability for defamation if publisher was guilty of some lapse of professional journalistic standards. 10. Pornography: this and obscenity are both protected expressions in canada. Pornography can only identified by reference to content of challenged material. a) R.v.Butler: Held prohibition of obscenity offended 2b. Purpose and effect of prohibition was to restrict communication of certain types of materials based on their content. Since no content based restrictions on 2b, obscene material is covered by guarantee. However, court held, prohibition upheld under s. 1 b) Reasoning: undue exploitation of sex contemplated material that 1) portrayed explicit sex w/ violence 2) portrayed explicit sex w/o violence but in a degrading or dehumanizing manner by placing women in positions of subordination, servile submissions or humiliation. These forms are intolerable to Canadian community b/c perceived public opinion to be harmful to society, particularly women. c) To uphold obscenity law under s.1: limit to be prescribed by law which means that law must not be excessively vague. Objective of code was avoidance of harm to society. This was sufficiently important objective to justify limit on freedom of expression. Oakes test: it did not extend beyond material that created risk of harm to society, did not prohibit material that had neither violence or degrading/dehumanizing material. Nor did it prohibit artistic works, or private possession or viewing. Prohibition was justified under s. 1 d) Littler Sisters Book:. Alleged that Customs applied test in discriminatory way. No need to amend. No need to use single community standard. held that Butler test above was not unconstitutional in its application to homosexual erotica. It was targeted violence, degrading, dehumanization that could occur in both hetro or homo contexts. Laid out guidelines for them to follow in future in administering prohibition. e) R.v.Sharpe: criminal code provision made offense to possess child pornography. Was limit on expression. Held. possession contributed to market for child porn and market caused production of child porn which involved expoitation of children, may facilitate seduction and grooming of victims. There was a reasonable apprehension of harm. Once harm inferred. elements of Oakes test fall into place. Prohibition upheld under s. 1 11. Access to public property: a) Committee for Commonwealth: cannot prohibit leaflets at airport. 2b conferred right to use all govt property for purposes of expression. Any limitation would have to be justified under s. 1. Would allow controls over access or use to the extent necessary to carry out the principal function of the govt place. B/c distribution of leaflets weas compatible w/ airports function of serving the traveling public, Lamer J found p had right to carry out practice. (1) Three purposes of guarantee of freedom of expression: 1) seeking truth, 2) participation in decision making 3) individual self fulfilment. b) Ramsden v. Petersborough: Putting posters on utility boards (public property) protected under 2b. Complete ban on postering on all public property was broader than necessary to accomplish objective of: reduce littering, aesthetic blight, traffic hazards. By law failed to meet s. 1 justification = unconstitutional. c) Montreal v. 2952-1366 Quebec (1) Facts: strip club in montreal set up loudspeaker at its entrance, used to broadcast music and commentary that accompanied the show within. Charged under by law that prohibited noise by sound equipment that could be heard outside building. By law said nothing about level of noise or disturbing neighbors. (2) Reasoning: by law authorized by statutory power to define and prohibit nuisance. Contrary to 2b? broadcast conveyed message about show in club, it was expression. Originated in private premises, transmitted to public street prohibited this part. The ban on emitting amplified noise onto public streets constitutes a limit on free expression because it has the effect of restricting expression which promotes the value of self-fulfilment and human flourishing. (a) Looked at scope, content, wording: We accordingly conclude that the City had the power to adopt art. 9(1) of the By-law. (3) #1 Whether infringes 2b: Approach -(a) Did the noise have expressive content, thereby bringing it within s. 2(b) protection?


i) It is clear that noise emitted by loudspeakers from buildings onto the street can have expressive content, and in this case it did. Therefore, the first part of the test in Irwin Toy is met and a prima facie case for s. 2(b) protection is established. (b) If so, does the method or location of this expression remove that protection? i) Thus, the public square and the speakers corner have by tradition become places of protected expression. 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 (c) If the expression is protected by s. 2(b), does the By-law infringe that protection, either in purpose or effect (4) #2 Test for the application of s. 2(b) to public property: Whether place is a public place where one could expect constitutional protection for free expression on basis that expression in that place does not conflict w/ purposes which 2b is intended to serve: 1) democratic discourse, 2) truth-finding, and 3) self-fulfillment. (a) Consider historical function of place, actual function of the place, and i) Where historical use for free expression is made out, the location of the expression as it relates to public property will be protected. Actual: does activity require privacy or is it public (b) whether other aspects of the place suggest that expression w/n it would undermine the values underlying free expression. i) whether the proposed test screens out expression which merits protection, on the one hand, or admits too much clearly unprotected expression on the other ii) Whether the proposed test is flexible enough to accommodate future developments iii) Conclusion: the expression at issue in this case falls within the protected sphere of s. 2( b) (5) #3 The infringement: that the expression at issue in this case falls within the protected sphere of s. 2( b). the objective of the limitation is pressing and substantial (6) #4 Section 1: The objective of combatting pollution of the environment by noise is pressing and substantial, and the impugned measure also meets the proportionality test. Proportionality is concerned with the means chosen to meet the objective. (a) First, the limit on noise produced by sound equipment is rationally connected to the Citys objective. (b) Second, the measure impairs freedom of expression in a reasonably minimal way. (c) Lastly, the prejudicial effects on free expression flowing from the regulation of noise produced by sound equipment that interferes with the peaceful use and enjoyment of the urban environment are proportionate to the beneficial effects of reducing noise pollution on the street and in the neighbourhood. (7) Conclusion: streets are public, where expression varieties accepted. Clubs broadcast into street protected by 2b. By was justified as reasonable limit under s. 1 despite its lacks of standards in respect to level or effects of prohibited noise. (8) Held: The appeal should be allowed. The municipal by-law is valid d) Greater Vancouver Transportation Authority: applied Montreal test to determine whether expression on the sides of buses was protected by 2b. Buses not historically used to express, but are used now, function not incompatible w/ function of transportation. Side of bus was public place and expression enhances 2b by furthering democratic discourse and truth finding, and self fulfilment. Prohibition on political speech was breach of 2b, not justified under s. 12. Access to courts a) Fair trial concerns: freedom of express comes into conflict w/ right of persons accused of crime to receive a fair trial. Publicity can bias jurors or judges, damage reputation. Can draw political controversy and impair courts capacity for neutrality. b) Restrictions on reporting: freedom of expression includes freedom to publish reports of proceedings in court. Edmonton Journal: law banned press reports on matrimonial litigation. Privacy of individuals justify some limits. Ban was wider than necessary to safeguard privacy. not upheld under s. 1, struck down. (1) Canadian newspapers: crim code order prohibited media from disclosing identity of sexual assault complainant. Limited freedom of press but justified under s. 1 (2) Dagenais v. CBC: injunction prohibiting CBC from broadcasting program portraying boys abused by priests in catholic school. Court struck down the injunction, limit on expression, not justified under s. 1 b/c other reasonably available alternatives measures. (3) R.v. Mentuck: wanted public trial. Held publication ban upheld as justifiable limit on press only w/ respect to police officers identities, not their undercover operations. (4) Toronto Star Newspapers: Held once search warrant executed, info must be available to public unless applicant can show that public access would subvert the ends of justice. Test not met, quashed sealing order, subject to concealing identity of informant. c) Restrictions on access: freedom of press includes right of press and public to be present in court.


(1) Re Southam & The Queen: struck down total ban on closed court provision, allow press and public w/ discretion of judge for juvenile cases. Law reconstructed. In part II, discretionary provision upheld under s.1 (2) CBC v. New Brunswick: exclusion order prohibiting press in sexual assault case. Held provision breached 2b but justified under s. 1 Parliament pursued important objective in providing a power to make exclusion order when openness would be inimical to the proper administration of justice and b/c power was discretionary, provision no broader than necessary. (3) Southam v. Coulter: private citizen sworn an information against several cabinet ministers & senior officers alleging bribery & corruption. Court upheld closure under s. 1 (4) Re Vancouver Sun: judicial investigative hearing. Open court principle can be limited under s. 1 w/ Dagenais and Mentuck standards. Principles: 1) order is necessary to prevent a serious risk to the proper administration of justice b/c reasonable alternative measures will not prevent the risk and 2) that the salutory effects of the order outweigh the deleterious effects on the rights and interests of the parties and the public. 13. Access to legislative assembly: New Brunswick Broadcoasting Co: upheld a ban on television cameras in the legislative chamer, imposed by Nova Scotia House of Assembly. Reasoning - parliamentary privilege included power of a legislature assembly to exclude strangers from the legislative chamber, and that power was not subject to Charter. 14. Contempt to court: act that offends against admin of justice. Failure to obey court order is common form of contempt. a) Civil contempt: court resolving dispute btn two private parties, no application of Charter. b) Criminal contempt: offense to admin of justice has a public significance that goes beyond immediate parties. Criminal offense at common law. Charter applicable b/c of public character of criminal contempt. Two types: (1) Direct contempt: contempt in the face of the court -committed by words or acts inside court room, to disrupt proceedings (insulting judge, refuses to be sworn, refuse to testify) (2) Indirect contempt: not in the face of the court. Committed by words, acts outside courtroom, intended to obstruct admin of justice, eg; an article in newspaper that would prejudice fairness of pending trial. c) Cases: Vancouver Courthouse: injunction to prevent picketers at court house, offense of criminal contempt was basis for injunction. Charter applied to injunction and limit on freedom of expression, but justified. R.v.Kopyto: lawyer made statement making court look bad, after proceedings done. Charged w/ criminal contempt- scandalizing the court. Held offense had not survived adoption of Charter. Made at end, so could not prejudice the trial. His statements protected, and law attempting to restrict it could not be justified under s. 1 15. Public service: public servants are subject to restrictions on their partisan political activities. OPSEU v. Ontario: (before charter case) Held prov had power to regulate its own public service, and could extent to restrictions on fed and prov political activity. Osborne v. Canada: Held act limited freedom of expression under 2b, and it was not justified under s. 1. Limits did not pursue objective by lease drastic means, act was over-inclusive as to both range of activity that was prohibited, and the range of public servants who were covered. Narrower prohibition would have been sufficient to protect value of neutrality w/ less impact on freedom of expression. 16. Mandatory letters of reference: for employee who was unjustly dismissed. Order is breach of employers charter right to expression. Where order requires employer to provide an opinion about employee that employer does not truly hold, then breach of charter right cannot be justified under s. 1 If letter contains only objective facts that are not in dispute, then order can be justified 17. Election expenditures: restrictions on election expenditures are indirect restrictions on political speech b/c required to purchase time or space in media for campaign messages. a) National Citizens: struck down prohibition against 3rd party expenditures. b) Somerville: amended, struck down prohibition allowing 3rd party expenditures of up to $1000. c) Harper: amended to $150,000 of which no more than $3000 can be spend on single electoral district. Held, prevention of evil was objective of restrictions and that objective was sufficiently important to justify limit of expression. Restrictions allowed 3rd parties to use modest means of advertising to inform electorate of message in a manner that will not overwhelm candidates. Restrictions upheld. d) Libman v. Quebec: held prohibition on 3rd parties, in breach of expression, not justified under s.1 purpose to equalize access to media by both sides of campaign. Law failed least drastic means test of Oakes b/c total prohibition was more drastic infringement of freedom of expression. (amended to allow $1,000). e) Hogan v. Newfoundland: the fact that govt funded more to yes side than no side that is not violation of freedom of expression. freedom did not demand spending limits either. No breach, no damages. 18. Voting: guaranteed by s. 3 Charter. Haig: 2b did not impose on fed or prov govt any duty to consult its citizens be referendum, and even if did, no duty to consult everyone. Held exclusion of citizens who did not satisfy residency requirement was not discrimination prohibited by s. 15. No constitutional right to vote in referendum. 19. Access to government: Native Womens Assn of Canada: whether 2b imposed duty of govt to fund and consult partiuclar groups. Held, Haif establishes principle that generally the govt is under no obligation to fund or provide a specific platform of


expression to an individual or a group. Evidence did not support claim that funded groups were not representative of aboriginal women and were adopting positions inimical to the interests of aboriginal women. a) Baier v. Alberta: whether could enact law that disqualified teachers and other employees of school boards from serving as trustees of school boards. Upheld law- it did not prevent teachers from expressing opinions in any issue relating to education. Purpose and effect was to disqualify them from participation in management of schools b/c conflict of interest in labor matters. 2b did not provide right to access to any particular statutory platform. I. LIFE, LIBERTY, AND SECURITY OF THE PERSON - Ch. 47 Fundamental Justice 1. Distribution of powers over legal rights: include s. 7 to 14; rights of persons w/n criminal justice system, limiting powers of state w/ respect to investigation, search, seizure, arrest, detention, trial, punishment. If law in relation to criminal law/proc, will be under fed power under s. 91(27). Arrest, charge, acquittal/conviction, in fed. Prov power 92(14) includes constitution of criminal and civl courts, civ proc, extends some aspect of investigation and prosecution of a crime. 2. Section 7 Charter: one right - not to be deprived of life, liberty, security of person except in accordance w/ principles of fundamental justice. Canadian Bill of Rights 1(a) and 2(e) is broader and in effect. 3. Section 1: A violation of fundamental justice can never be justified under s. 1 4. Benefit of s. 7 a) Corporations: everyone does not include corporation, sect 7 does not apply. But corp can defend on charge based on the law is a nullity: R.v.Wholesale Travel Group: Held principle allows corp to defend criminal charge on ground that the law under which the charge was laid would be violation of s. 7 in its application to an individual. b) Immigrants: everyone includes illegal immigrants, present in canada, claim to be refugee, entitled to hearing Singh v. Minister of employment & immigration c) Foetus: everyone does not include foetus. Sec 7 used to strike down restrictions on abortion b/c they deprived mother of her right to liberty or security of the person. 5. Burden: sec 7 applies sonly to govt action. 6. Life: held that excessive waiting times for treatment in public health care system of quebec increased risk of death, were violation of right of life. 7. Liberty: a) Physical liberty: includes freedom from physical restraint. Penalty of imprisonment must conform to principles of fundamental justice. (does not include fine) Submit fingerprinting, produce docs, give oral testimony, not loiter around schools/parks/bathing areas= deprivations of liberty. Deportation of non citizen is not a deprivation of liberty b/c has no right to remain in canada. (1) Cunningham v. Canada: not released on mandatory supervision b/c believed would commit offense, used this under new power. Held change in law not breach of princ fund just. (2) May v. Ferndale institution: moving from min to med security is deprivation of liberty, Held failure of correctional service to fulfil a statutory obligation to provide info as to reasons for transfer was not sufficiently important to amount to breach of fundamental justice. (Made transfer unlawful = return to min security). b) Economic liberty: do not have property rights,or freedom of contract in s. 7, no economic liberty. Also because line of legal rights sections is concerned w/ individuals interaction w/ justice system and its administration. Liberty does not include right to do business, or right to work. c) Political liberty: liberty does not include freedom of conscience, religion, expression, assembly, association, right to vote and be candidate for election. These are elsewhere in Charter, not in s. 7 8. Security of the person: what does this include: defense of charge of assault for teachers and parents who use reasonable force by way of correction against children in their case (Canadian foundation fo children, youth and the law). Held restriction on abortion were unconstitutional-caused delay in treatments and increased risk of mothers, also loss of control over termination of pregnancy. (Morgentaler) a) Chaoulli v. Quebec: held excessive waiting times caused unnecessary pain and stress to those awaiting surgery and other medical procedures - breach of security of person, risk of death increased. Quebec law forbade purchase of private health insurance. Struck down law as unconstitutional. b) Rodriquez v. British Columbia: assisted suicide - although removal of P on aspect of control over body was deprivation of security of person under s .7, Held law did not offend principles of fundamental justice. c) New Brunswick v. G.(J.): held application by state to remove children from parent and place them under wardship affected security of person of parent b/c serious interference w/ psychological integrity of parent. To accord w/ principles of fundamental justice, parent represented by state funded counsel. d) Gosselin v. Quebec: Law gave welfare, if under 30 receive 1/3 of standard welfare benefit, can get standard if participated in educational or work experience programs. P sued to recover difference between amount of welfare benefit received and standard


amount. Held s. 7 not extended to economic rights, section not interpreted as imposing positive obligations on state to ensure that each person enjoyed life, liberty, security of the person. 9. Property: no property included in s. 7, no guarantee of compensation or fair procedure for taking of property by govt. No fair procedure for economic interests. Canadian Bill Of Rights guarantees enjoyment of property s 1(a), and 2(e) has fair hearing in accordance. a) Singh v. Minister of Employment & Immigration: held Act did not measure up to standard of fundamental justice, thus, invalid. Beez decided 2(e) Bill of Rights. Wilson held s. 7 applied and decided on that basis. b) McBain v. Lederman: 2e applies to civil litigation about money, property, purely economic interests. Held law invalid, struck it down - created reasonable apprehension of bas b/c member of tribunal appointed by HR Commission, and HR was also the prosecutor. c) Authorson v. Canada: Crown under fiduciary duty to to veterans for whom holding funds. Paid P funds w/o interest. Claim barred by statute. Invoked 1(a) and 2(e) Canadian Bill of Rights. Although deprived of enjoyment of property he was denied relief, b/c only procedure govt owes in proposed law is 3 readings in senate and house and royal assent. 10. Fundamental justice a) Procedure and substance: deprivation of life, liberty, security is breach of s.7 only if deprivation is not in accordance w/ the principles of fundamental justice. Fundamental just quivalent to natural justice. Courts entitled to review appropriateness and fairness of the procedures enacted for a deprivation of life, liberty, security of the person. Not entitled to review substantive justice of deprivation. (1) BC Motor Vehicle Reference: held that fundamental justice covers substantive and procedural justice. (determine validity of provision which made it an offense to drive while prohibited from driving or license suspended. Mandatory imprisonment if found guilty) Held, breach of fundamental justice to impose term of imprisonment for offense that lacked the element of mens rea (provision declared offense as absolute liability, in which guilt established by driving whether or not person knew of prohibition/suspension). Absence of mens rea = substantive injustice, s. 7 applicable. (a) Reasoning: 3 reasons for extending fundamental justice beyond procedure: 1) words fundamental justice are literally broader in scope than other formulates such as natural justice. 2) Fund Just has effect of expanding the protection of life, liberty, security of the person. 3) s. 7 is a general residuary clause for all of legal rights of Charter, 8 to 14 are merely illustrative of deprivations of fundamental justice that could easily be caught by s.7. Since 8 to 14 merely go beyond procedural guarantees, it follows s. 7 must too. b) Definition of fundamental justice: principles of fundamental justice are to be found in the basic tenets of the legal system (1) whenever a law deprives an individual of life, liberty, or security of the person, the courts must determine whether the parliament or legislature struck the right balance between competing values that the legislators had sought to reconcile. Cunningham v. Canada. (2) Rodriquez v. British Columbia: held crim code provision was arbitrary or unfair b/c precluded a disabled person from committing suicide while permitting an able-bodied person to do so. (3) Canada v. Schmidt: held that s. 7 would be breached by extradition order where fugitive faced w/ punishment under foreign law which would shock the conscience of or be simply unacceptable to reasonable canadians. (4) R.v.Malmo-Levine: challenge to criminalization of possession of marijuana, included imprisonment. Argued that harm principle was principle of fundamental justice which was offended by criminalizing conduct which did not cause harm to others. Held that the harm principle did not satisfy requirements, therefore, open to parliament to impose imprisonment for crimes that did not involve harm to others.Court stated 3 requirements for rule to qualify as basic tenet of legal system and therefor a principal of fundamental justice (a) Rule must be a legal principle (b) There must be a significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate (c) Rule must be capable of being identified w/ sufficient precision to yield a manageable standard. (5) R.v.Parker: (Ont Ct App). Held, that possession of marijuana cannot be prohibited if it the prohibition did not include an exemption for those with a medical need of the drug. Absolute prohibition that threatened health was a breach of the principles of fundamental justice. (6) Canadian Foundation for Children, Youth, and the Law: Held that best interests of child was a legal principle (1st requirement) but it was not one that was generally regarded as fundamental to the justice of the legal system (2nd requirement), and it was not one that yielded a sufficient precise standard (third requirement). Therefore, best interests of child was not a principle of fundamental justice, and even if corrective force was not in best interests of child, it did not infringe s. 7. (7) Residuary theory of s. 7, contains elements of right against self incrimination. This residuary theory is applied to grant a right in circumstances that do not fit w/ specific Charter guarantees. Applies to right to be tried w/n reasonable time 11(b).


Does not apply to pre-charge or appellate delay (delay after accused charged). Court has held that excessive delay at either the pre charge stage or the appellate stage of criminal proceedings may afford the accused a remedy under s. 7 11. Absolute and strict liability a) Categories of offenses: R.v.City of Sault Stre. Marie - 3 categories: (1) Offenses of absolute liability : offense consists simply of doing the prohibited act. No mens rea or negligence, or requirement of fault. (convicted if had no intent or exercised reasonable care) (2) Offenses of strict liability: offense consists simply of doing the prohibited act, however, it is a defense if the D proves civil standard of balance of probabilities that he exercised reasonable care (due diligence) to avoid committing the offense. In effect there is a fault requirement of negligence, b/c accused is liable only if he cannot prove the exercise of reasonable care. (3) Offenses of mens rea: offense consists of doing the act and also w/ guilty intent of intending to break the law (or reckless as to whether or not the law will be broken). b)Absolute liability offenses: (1) BC Motor Vehicle Reference: held absolute liability was denial of principles of fundamental justice. Offense violated s. 7 b/c carried imprisonment term, whether or not D knew of prohibition/suspension of driving. (2) R.v.Hess: offense for male to have sex w/ female under 14 whether or not he believed she was 14. Imprisonment as penalty. Held that absolute liability offense that carried penalty for imprisonment was breach of fundamental justice in violation of s. 7. Effect - deleted words whether or not he believes that she is 14 - sufficient to remove element of absolute liability. (3) R.v.Pontes: (sequel to BC Motors) Act stated that any driver convicted of driving related criminal code offense was automatically and w/o notice prohibited from driving for 12 months. Since no imprisonment for violating, no breach of liberty under s. 7. Law was upheld. (4) Levis v. Tetreault: absolute liability offenses still exist, but have become exception requiring clear proof of legislative intent. Held that offenses under Quebecs highway safety code of driving unregistered vehicle and w/o license were strict liability offenses. Allows defense of due diligence. Mere failures to receive notice of expirations did not amount to due diligence. (5) S. 7 has no application on fines, so long as no imprisonment sentence, govt can create absolute liability offenses. Imprisonment violates s. 7. Do not have to struck down law, there are other options: (a) Interpret statute creating offense allowing defense of due diligence (strict liability) (Levis v. Tetreault) (b) Use power of severance (reading in) and converting offense into one of mens rea (R.v.Hess) (c) Use power of severance to eliminate penalty of imprisonment, offense is regulatory one (R.v.Pones) c) Strict liability offenses: (1) R.v.Wholesale Travel Group: regulatory offense was to be regarded as one of strict liability if it had two characteristics: 1) there was a defense of due diligence, 2) the burden of proving due diligence rested on the defendant (reverse onus). Regulatory or public welfare offense that carried prison imprisonment, fundamental justice does not require that mens rea be element to the offense. Instead, premised on negligence. For true crimes, requires mens rea and burden on proving it is on the crown. (2) R.v.Hundal: Dangerous driving causing death is not a True crime, but regulatory crime. All crown needed to establish was an objective departure by the accused from the appropriate standard of care. The fact that accused believed that he was driving safely was irrelevant. Objective of negligence was a sufficient fault requirement for dangerous driving causing death. (3) R.v.Nova Scotia Pharmaceutical Society: Competition Act, eliminated mens rea. Held, provision did not violate s. 7. Held that challenged provision contained subjective mental element, namely, the requirement that accused intended to enter into an agreement and an objective mental element, namely the requirement that the accused ought to have known that the agreement would lessen competition. This was enough to satisfy s. 7 minimum fault requirement. (a) Ex: business person who entered into an agreement that he believed would enhance competition would have committed the offense if a criminal court concluded that actual effect of agreement was to lessen competition. (4) R.v.Finlay: offense of storing firearm in careless manner. Decided whether negligence was a sufficient fault requirement for offense. Held, offense does not give rise to sufficient stigma to require subjective mens rea under s. 7 of Charter. Fault requirement of negligence was upheld. (5) R.v.Naglik: offense of failing to provide necessaries of life to child under 16. Held, objective did not require subjective mens rea, considered by objective societal standard. Negligent failure to provide necessaries of life was culpable as intentional failure to do so. Objective standard satisfied s. 7 Charter. (6) BC Motor Vehicle: s. 7 requires that offenses that carry penalty of imprisonment must include element of fault. 12. Murder:


a) R.v.Vaillancourt: Held that felony-murder rule was violation of fundamental justice s. Fact that accused must have mens rea w/ respect to underlying offense (robbery) , was not sufficient to satisfy s. 7. Required to have mens rea w/ respect to death. Felony murder rule unconstitutional. Extreme stigma and extreme punishment associated w/ murder that entailed requirement that the accused have some level of mens rea with respect to death. Some level of mens rea w/ respect to victims death was required for crime of murder. b) R.v.Martineau: held that higher level of mens rea - subjective foreseeability was required by s. 7 (for felony murder) c) R.v.Logan: s.7 challenge to s.21(2) of crim code for party to an offense. Two charged b/c third shot store clerk during robbery. Held crime of attempted murder was one of the few offenses that s. 7 stipulated a subjective mens rea. Most important consideration was social stigma associated w/ conviction not mandatory penalty. Since subjective mens rea required for attempted murder, same required for party of an offense. Words in offense Ought to have known was objective, and thus, inapplicable. d) Offenses for which subjective mens rea required: murder, attempted murder, war crimes, crimes against humanity committed outside canada. Identified by the social stigma attached to conviction. 13. Unforeseen consequences: offenses in which consequences of unlawful act dictate severity of the punishment for which accused is liable. Elements of mens rea required to make person liable for unforeseen consequences: a) R.v.DeSousa: unlawfully causing bodily harm. Person threw glass bottle, shattered glass injured bystander. Held, that no constitutional requirement that intention, either objective or subjective extend to the consequences of unlawful acts in general. Accused convicted. Distinguished murder and attempted murder. Unlawfully causing bodily harm did not involve stigma or sufficient penalty to be one of those few offenses. For all of less serious offenses, element of mens rea required but principles of fund just did not include any foresight. b) R.v.Creighton: Element of offense of manslaughter by unlawful act: the accused ought (as a reasonable person) to have foreseen the risk of bodily harm (objective foresight of bodily harm). Upheld constitutionality of crim codes requirement of objective foresight of bodily harm as the mental element of unlawful act manslaughter. 14. Involuntary acts a) Automatism: cannot be convicted of criminal offense for an act that is involuntary. Person can engage in behavior while in state of automatism, and that automatic behavior cannot be offense because it is involuntary. To succeed defense, must raise a reasonable doubt that the accused acted while in a state of automatism. Proved on balance of probabilities, this is a breach of presumption of innocence 11(d) but justified under s.1 (1) Includes sleep walking, psychological blow that induces automatism - taunting is not psychological blow b/c normal ppl do not shift into a state of automatism after taunts (2) Law us constitutional, any attempt to abolish it would be unconstitutional unless law limiting it can be justified. b) Duress: offense committed under compulsion is excused from criminal liability. Compulsion takes form of threats of immediate death or bodily harm from a person who is present when offense is committed. c) Intoxication: s. 7 requires extreme intoxication be a defense to a criminal charge. If offense is specific intent, extreme intoxication may negate additional intent to lead to acquittal of accused - instead of convicted of lesser offense for which no specific intent required. Not a defense for general intent b/c mental intent so minimal that drunk person can form (1) R.v.Daviault: Charter required self induced intoxication if it was so extreme to be akin to automatism, must free the accused from criminal liability. Accused establishes the defense on balance of probabilities (bop justified), (2) R.v.Robinson: intoxication is a defense to specific intent. Overruled MacAskill - stated that if drunkenness raised a reasonable doubt as to whether the accused in fact possessed the requisite specific intent, the accused was entitled to be acquitted even if there was no doubt that the accused possessed the capacity to form the requisite intent. 15. Overbroad laws: laws that are overly broad than necessary in accomplishing its purpose. Not the same as vagueness. Of course, law that is too vague and be overly broad too. Any law that imposes imprisonment is unconstitutional if scope the law in a hypothetical case is broader than required to carry out purpose. a) R.v. Heywood: held that purpose of law to protect safety of kids, restricted more liberty than necessary to accomplish purpose thus, breach of fundamental justice (sexual offenders cannot be found littering near school grounds, playground, public park or bathing area) 3 reasons-1) geographic scope too wide b/c kids may not be found in bathing areas and parks, 2) Duration too long, applied for life w/o review 3) class of persons it applied to was too wide, b.c some offenders not a continuing danger to children. Law not justified under s. 1, struck down in its entirety. b) R.v.Clay: Held challenge that penalty of imprisonment for marijuana impaired liberty s. 7 - failed. Most people who smoked it were harmless, but narrow prohibition would not be effective, theres a rational basis for extending prohibition to all users. Prohibition was not overbroad. c) Canadian Foundation for children:argued its broad b/c applied to kids under 2 whom which not capable of learning from physical correction and teenagers who could suffer psychological harm. Held b/c law does not permit force that cannot correct or is unreasonable, and examples of overbroad would include force that does not correct and is unreasonable, law cannot be overbroad.


d) R.v.Demers: fit to stand trial annually determine if fit or not. Held that overbroad in its applicable b/c person who suffered from mental disorder that made him permanently unfit for trial. This person would be trapped in the system, subject to annual reviews, no power to discharge even if not a threat to public safety. Since law made no provision for discharge, it was overbroad, and since it impaired liberty under s. 7 the overbreadth made law unconstitutional. Struck down the law, allowed 12 months for parliament to amend law. 16. Disproportionate laws: this is a breach of principles of fundamental justice. R. v. Malmo-Levine: requires court to determine 1) whether a law pursues a legitimate state interest 2) whether the law is grossly disproportionate to the state interest (if no then no disproportionality and no breach of s. 7) 17. Arbitrary laws: Chaoulli v. Quebec: Held that failure to provide timely care in public system led to breaches of the right to life and right to security of the person (public health care). Law that prohibited private health care offended principles of fundamental justice b/c it was arbitrary. Law is arbitrary if : if lacks a real connection on the facts to the purpose the law is said to serve. Delays in public health system and ban on private insurance could not be justified under quebec equivalent of s. 1 Charter. 18. Vague laws a) Void for vagueness: void law violates principles of fundamental justice which causes a breach of s. 7 if law is a deprivation of life, liberty, or security of the person. Law offends two values, law is vague if: 1) law does not provide fair notice to persons of what is prohibited, which makes it difficult to comply w/ the law; 2) law does not provide clear standards for those entrusted w/ enforcement, which may lead to arbitrary enforcement . Unlike overbreadth, hypothetical cases are not permitted to determine vagueness. (1) Not vague: communication for prostitution, unduly, contaminant natural environment and use in EPA, b) Standard of precision: law is vague if: 1) law does not provide fair notice to persons of what is prohibited, which makes it difficult to comply w/ the law; 2) law does not provide clear standards for those entrusted w/ enforcement, which may lead to arbitrary enforcement . Vagueness doctrine is not violated if law is open to more than one interpretation. Vague, only if it cannot even w/ judicial interpretation provide meaningful standards of conduct. c) Application to other Charter rights: Morales: held that vagueness applies to 11(e), the right not to be denied reasonable bail w/o just cause. There cannot be just cause for a denial of bail w/n meaning of 11e if statutory criteria for denying bail are vague and imprecise. Vagueness is not confined to s.7. Law that limits right can only be upheld under s 1 if the law is prescribed by law, to be prescribed, law calls for fair notice to citizen and limits on enforcement discretion. Thus, s ection 1 cannot be satisfied by a vague law. 19. Wrong laws: R.v.Gamble: tried/convicted of murder under new laws that were not in force at time of offense. Elements of offense and rules far parole changed. Old laws, parole in 10 years, new law 25 years. Trial took place in 1976, after charter, in 1986 she had served 10 years, applied for habeas corpus to remove from her sentence the condition that she be ineligible for parole 25 years. Application granted. Held continued detention w/o parole was breach of s. 7. Principles of fundamental justice found in basic tenets of legal system. It was a basic tenet that accused must be tried and punished under law in force at time offense is committed. 20. Right to silence: R. v. Hebert: Held that statement had been obtained in breach of charter - accused arrested, advised of right to counsel, made no statement, undercover cop disguised as prisoner, engaged in conversation and accused made incriminating statement. Right to silence is basic tenet of legal system - arises only upon detention and precluded statements elicited by police questioning. Here, police used trick, so violated s. 7. a) R. v. Broyles: accused made statement while in custody to friend who visited in jail - friend recruited by police. waring body pack to record statement. Held informer was acting as agent of state and should be covered by same constitutional restraints as police. Statement obtained in breach of right to silence, statement excluded. b) R. v. Osmar: held that right to silence not triggered b/c not detained by police when made confession, that accused unaware he was talking to cops, not under form of coercions. - Undercover cops posing as crime figures got him to confess to crimes to join organization to gain trust then could be counted on to carry criminal orders. c) R.v.Singh: the right to remain silent does not include the right not to be spoken to by state authorities. If person who knows he is talking to authority, the right to silence is not offended by a voluntary statement - not induced by threats, promises, oppression or trickery, and was voluntary, properly admitted at trial. Ultimate question: whether the accused exercised free will in choosing to make a statement. Different from right to counsel - cannot question until has reasonable opportunity to contact counsel, but where contacted, accused has free will and can change mind about talking to cops. d) 11(c) accused person is not compellable witness at his own trial, s. 13 witness who gives self incriminatory evidence has right to not have evidence used against him in other proceedings. S. 7 gives additional right to silence, 7 contains residue of right to silence and supplements 11(c) and 13. e) R.v.White: held that b/c accident reports were provided under compulsion, their admission into evidence against the accused would violate a principle of fundamental justice under s. 7 - principle of self incrimination. Fundamental justice provided immunity against the use in criminal trial of the statutorily compelled information.


f) S. 7 applies to derivative or secondary evidence. (on self incriminating b/c not created by witness but existed independently) S. 7 expands s. 13, excludes derivative evidence that would not have been discovered but for witnesss testimony. g) S. 7 right against self incrimination gives rise to 3 immunities: (1) Use immunity: protects witness from having compelled testimony used to incriminate him in subsequent proceeding. (provided to witness who testifies in any proceedings). (2) Derivative use immunity: protects witness from having the compelled testimony used to obtain other evidence to incriminate him in subsequent proceeding, unless the derivative evidence is discoverable independently of the compelled testimony. (3) Constitutional exemption from testifying in the first place - applies if attempt made to use statutory compulsion to obtain testimony for predominant purpose of obtaining evidence for the prosecution of the witness. 21. Fair trial a) The right to a fair trial: s. 7 overlaps with 11- a fair and public hearing by an independent and impartial tribunal: right to representation of parent when children removed from custody, fugitive entitled to know case against him and not entitled to know full disclosure of prosecution evidence. Allowed to video tape evidence of witness under 18 so that can adopt contents of video instead of going over whole story; under 18 can also be behind one-way screen so that witness cannot see the accused, although accused can see the witness. (trial judge has discretion to refuse video tape) (1) Charkaoui: certificate authorizes detention and arrest of person, automatically referred to judge of ft ct under reasonableness. No disclosure of info person, cannot give info upon which certificate was based on. (a) Held that issue of security certificate was deprivation of liberty under s. 7 and that review process did not satisfy principles of fundamental justice, b/c it did not provide the named person w/ a fair hearing. Held that person must have opportunity to know case put against him to challenge case. (b) Section 1 - law failed to limit right by least drastic means b/c parliament could adopt procedures to protect secrecy that were less intrusive of individual rights. Can have special counsel that can defend interest of person, would compensate for lack of informed participation by named person. W.o some effort to compensate for non disclosure of secret info, security certificate process could not be justified under s. 1 b) Full answer and defense: R.v.Seaboyer: right to present full answer and defense under s. 7 and 11(d). Rape shield provision struck down b/c restricted right of person charged to cross examine complainant about past sexual activity, this would exclude relevant evidence that is required to enable accused to make full answer and defense. (1) R.v.Cook: rejected argument that crown not calling victim as witness deprived accused of ability to make full answer and defense. Crown has discretion to call whoever, and accused can make full answer and defense by cross examining those witnesses. c) Pre-trial disclosure by the Crown: R. v. Stinchcombe: Held that pre trial disclosure by the crown of all info relevant to conduct of the defense is a constitutional obligation, entailed by the accuseds right to make full answer and defense. Sec 24 authorizes appropriate and just remedy for breach of this charter right. - normally order for disclosure coupled with award of costs to the accused. If considered after conviction, more remedies. If failure to disclosure raises doubt on reliability of verdict or fairness, new trial ordered. If disclosure by prosecutor is negligent or deliberate, will result in breach of professional responsibility, exposing to discipline by law society. d)Pre-trial disclosure by third parties: (1) R.v.OConnor; Issue: whether accuseds constitutional right to make full answer and defense included right to obtain documents which were not in crowns possession but held by 3rd parties. - sexual assault charge, wanted medical records of complainants, not being relied upon by crown, so not in the case to meet, thus, might not be necessary for full answer and defense. (a) Held that production must be governed by procedure which would strike the proper balance between full answer and defense on the one hand, and the witnesses privacy and equality rights on the other. Disclosure is not an absolute right. (b) Procedure: Defense must apply to trial judge for disclosure order, establish on balance of probabilities that the records are likely relevant to making full answer and defense. If relevance established, private inspection by judge. Disclosure made after considering 5 factors: i) The records importance for full answer and defense ii) Their probative value iii) The nature and extent of privacy vested in them iv) Whether production would be premised on a discriminatory belief or bias v) The effect that production would have on a witnesss dignity, privacy, and security of the person. (2) R.v.McClure: held that litigation file (now wanted by accused sexual assault case) contained communications between solicitor and client for purpose of providing legal advice, was covered by the solicitor-client privilege. Victim can thus refuse to produce it in court proceedings. Held that privilege could yield to accuseds right to full answer and defense only if


accuseds innocence was at stake when observance of privilege would lead to wrongful conviction. Innocence at stake test (a) Judge determine whether there was an evidentiary basis to conclude that the privileged records could raise a reasonable doubt as to guilt (if passed, go to 2nd stage) (b) Judge inspect records privately to determine if they are likely to raise a reasonable doubt as to guilt . (3) R.v. Brown: Innocence at stake test applied. Passed first stage, and second stage raised reasonable doubt as to guilt, but judge should rely on evidence like this as a last resort. Do not order this if accused has other means of raising a reasonable doubt. e) Preservation of evidence: crowns duty to disclose relevant evidence to accused applies only to evidence that is in the possession or control of the crown. evidence that is lost or destroyed cannot be disclosed. Thus, held that crown is under a duty to accused to preserve relevant evidence once it comes into the possession of control of the Crown. (1) R. v. La: sexual assault case, tape recording w/ 13 yr old prostitute and police. Held that loss of tape (by police) and failure to disclose it to defense was not breach of s. 7. Breach would occur if crown cannot provide a satisfactory explanation for loss (deliberately destroyed by unacceptable degree of negligent conduct). Here, there was a explanation, no negligence, mislead by police. (a) There can still be breach of s. 7 if accused establishes that loss of evidence will prejudice his ability to make full answer and defense and thus cause unfair trial. (2) R. v. Carosella: counselors center had policy of shredding notes that would lead to prosecution (sexual assault), court held that accused was denied of his right to full answer and defense by the deliberate destruction of relevant evidence, for which he ordered disclosure. Court ordered a stay of proceedings. It was enough that evidence may affect conduct of defendant. Possibility that notes may reveal inconsistency between account complainant made to counselor and testimony at trial was enough to meet low threshold. (no good now because of law) (3) *Now: parliament has prohibited disclosure to accused in sexual assault cases of confidential records of which only relevance is that they may disclose an inconsistent statement of the complainant or that they may relate to the credibility of the complainant. f) Statutory limits on pre-trial disclosure: parliament has made amendments to code to limit and restrict disclosures of confidential records in sexual assault cases. Same for crown records and third party records, no more distinction. (1) According to amendments, confidential record will be produced for inspection by court if defense can establish both that it is likely relevant and that its production is necessary in the interests of justice. 11 reasons which will not be sufficient to establish likely relevance. (a) 11 reasons includes: i) Record may disclose a prior inconsistent statement ii) Record may relate to credibility of the complainant (b) For interests of justice there are 8 factors that are relevant - pg. 47-82 (2) Once determined that records are likely relevant and interests of justice favor production, judge will order them to be produced and will inspect the records in the absence of parties to determine whether w/ reference to 8 factors, it is in interests of justice to release all or some to defense, or should be edited. (3) For docs w/ Crown Stinchcombe decided that if relevant to defense and not privileged, automatic disclosure. But now may be withheld b/c of amendments made and the 8 factors analysis in it (4) R.v.Mills: Court upheld the amendments. Did not rely on s. 1 to uphold law. Although amendments of 1997 gave more weight to complainants right of privacy and equality than had the courts previous decisions, the amendments still gave sufficient weight to the accuseds right to make full answer and defense, and the amendments were therefore constitutional. 22. Fair administrative procedures: s. 7 goes beyond natural justice, also includes procedural fairness (admin tribunals observe this). Requirement attaches only where decision maker has power over life, liberty, or security of person - s. 7 will impose procedural fairness on decision maker. Same as would be required by common law. a) Includes: person claiming refugee status has right to oral hearing; decision to deport does not require oral hearing although 7 requires disclosure of case of deportation and opportunity to reply in writing; where person ordered deportation has petitioned the UNHR Committee, and committee made request that canada stay deportation until committee considers petition s. 7 does not require canada to stay the deportation. b) Common law rules of proc fairness yield to any inconsistent statutory provision. Where 7 applies, rules of procedural fairness have constitutional status and will prevail over any inconsistent statutory provision. Statutory provision in breach of 7 could in theory be justified by s. 1 but it would be difficult to justify breach of proc fairness norms of fundamental justice and no such justification has so far been successful.


23. Charkaoui v Canada (Citizenship and Immigration): Examined the constitutionality of procedures for determining the reasonableness of a security certificate and for reviewing detention under a certificate. a) Issues: IRPAs provisions may violate five provisions of the Charter: the s. 7 guarantee of life, liberty and security of the person; the s. 9 guarantee against arbitrary detention; the s. 10( c) guarantee of a prompt review of detention; the s. 12 guarantee against cruel and unusual treatment; and the s. 15 guarantee of equal protection and equal benefit of the law. They also allege violations of unwritten constitutional principles. b)Section 7, Justified or not under Section 1 (1) Rule: Section 7 requires a claimant to prove two matters: (section 7 is engaged here) (a) That there has been or could be a deprivation of the right to life, liberty and security of the person, and (b) That the deprivation was not or would not be in accordance with the principles of fundamental justice. (c) If the claimant succeeds, the government bears the burden of justifying the deprivation under s. 1, which provides that the rights guaranteed by the Charter are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. (2) Reasoning: The issue is whether the process is fundamentally unfair to the affected person. If so, the deprivation of life, liberty or security of the person simply does not conform to the requirements of s. 7. The inquiry then shifts to s. 1 of the Charter (a) The Court held that the security certificate process, which prohibited the named individual from examining evidence used to issue the certificate, violated the right to liberty and habeas corpus under section 7, 9 and 10 of the Canadian Charter. (b) The right to a fair hearing comprises the right to a hearing before an independent and impartial magistrate who must decide on the facts and the law, the right to know the case put against one, and the right to answer that case. While the IRPA procedures properly reflect the exigencies of the security context, security concerns cannot be used, at the s. 7 stage of the analysis, to excuse procedures that do not conform to fundamental justice (c) Independence and impartiality of judge met. If s. 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found (3) Section 1 Rule: a means rationally connected to the objective; (b) minimal impairment of rights; and (c) proportionality between the effects of the infringement and the importance of the objective (a) On the section 1 analysis for justification of the violation the Court held the IRPA does not b) minimally impair the rights of persons named in certificates. Less a) intrusive alternatives developed in Canada and abroad, notably the use of special counsel to act on behalf of the named persons, illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA. Procedures cannot be justified under s.1 c) Detention of foreign nationals - breach of s. 9 and 10(c)? (1) Section 9 of the Charter guarantees freedom from arbitrary detention (2) The court also found that s. 84(2) of the IRPA was unconstitutional because it denied a prompt hearing to foreign nations by imposing a 120-day embargo on any application for release. The court corrected this defect by removing this mandatory waiting-period. Infringes the guarantee against arbitrary detention in s. 9 of the Charter, which encompasses the right to prompt review of detention under s. 10(c) of the Charter. While there may be a need for some flexibility regarding the period for which a suspected terrorist may be detained, this cannot justify the complete denial of a timely detention review. (3) I conclude that the lack of timely review of the detention of foreign nationals violates s. 9 and s. 10( c) and cannot be saved by s. 1. d)Do Extended Periods of Detention Under the Scheme Violate Section 7 or the Section 12 Guarantee Against Cruel and Unusual Treatment? e) Remedy: The Court declared the "judicial confirmation of certificates and review of detention" to be of no force and effect, striking down articles 33 and 77 to 85 of the Immigration and Refugee Protection Act, but suspended the ruling for one year. f) Conclusion: the IRPA unjustifiably violates s. 7 of the Charter by allowing the issuance of a certificate of inadmissibility based on secret material without providing for an independent agent at the stage of judicial review to better protect the named persons interests. I also conclude that some of the time limits in the provisions for continuing detention of a foreign national violate ss. 9 and 10(c) because they are arbitrary. I find that s. 12 has not been shown to be violated since a meaningful detention review process offers relief against the possibility of indefinite detention. Finally, I find that there is no breach of the s. 15 equality right. g) Held: appeal allowed. 24. Canada v PHS Community Services Society: a) Issue: whether the Ministers decision violated the clamaints Charter rights


(1) Whether ss. 4(1) and 5(1) of the CDSA are constitutionally inapplicable to the activities of the staff and clients at Insite by virtue of the division of powers. (2) Whether ss. 4(1) and 5(1) infringe the rights guaranteed by s. 7 of the Charter, and if so, whether the infringement is justified under s. 1 of the Charter. b) Arguments: Ms. Tomic, Mr. Wilson and PHS argue that ss. 4(1) and 5(1) of the CDSA, which prohibit possession and trafficking respectively, are invalid because they limit the claimants s. 7 rights to life, liberty and security of the person and are not in accordance with the principles of fundamental justice. (1) In the alternative, they assert that their s. 7 rights have been infringed by the Ministers refusal to extend the exemption for Insite from the application of the federal drug laws. (2) VANDU submits that the CDSAs prohibition on possession of drugs limits the s. 7 Charter rights of all addicted drug users everywhere, not just at Insite c) Reasoning: The prohibition on trafficking in s. 5(1) of the CDSA does not constitute a limitation of the claimants s. 7 rights because trafficking charges would not apply to the activities of Insite staff. (1) The discretion vested in the Minister of Health is not absolute: as with all exercises of discretion, the Ministers decisions must conform to the Charter. (2) The Ministers failure to grant a s. 56 exemption to Insite engaged the claimants s. 7 rights and contravened the principles of fundamental justice. The Minister of Health must be regarded as having made a decision whether to grant an exemption, since he considered the application before him and decided not to grant it. (3) It thus engages the claimants s. 7 interests and constitutes a limit on their s. 7 rights. Based on the information available to the Minister, this limit is not in accordance with the principles of fundamental justice. It is arbitrary regardless of which test for arbitrariness is used because it undermines the very purposes of the CDSA the protection of health and public safety (4) The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics. (5) Arbitrary: When considering whether a laws application is arbitrary, the first step is to identify the laws objectives. The second step is to identify the relationship between the state interest and the impugned law, or, in this case, the impugned decision of the Minister (a) Ministers refusal to grant Insite a s. 56 exemption was arbitrary and grossly disproportionate in its effects, and hence not in accordance with the principles of fundamental justice. (6) Grossly disproportionate: gross disproportionality describes state actions or legislative responses to a problem that are so extreme as to be disproportionate to any legitimate government interest/ (a) There has been no discernable negative impact on the public safety and health objectives of Canada during its eight years of operation. The effect of denying the services of Insite to the population it serves is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics. (7) Remedies: (a) On future applications, the Minister must exercise that discretion within the constraints imposed by the law and the Charter, aiming to strike the appropriate balance between achieving public health and public safety. In accordance with the Charter, the Minister must consider whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice. (8) Where, as here, a supervised injection site will decrease the risk of death and disease, and there is little or no evidence that it will have a negative impact on public safety, the Minister should generally grant an exemption. d) Held: The appeal and the cross-appeal are dismissed. The Minister of Health is ordered to grant an exemption to Insite under s. 56 of the CDSA forthwith. (1) Does s. 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, infringe the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms? (a) No. (2) Does s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, infringe the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms? (a) No. J. EQUALITY RIGHTS - Ch. 55


1. Distribution of powers: authority to enact laws distributed btn fed and prov according to which has jdx over employment, accommodation, restaurants, and other businesses or activities in which discrimination is forbidden. Most of the field is prov under property and civil rights in the prov (92(13)). But fed can use its criminal law power (91(27)) to outlaw disrim. 2. Canadian Bill of Rights: 1(b) guarantees equality before the law - applies only to fed- superseded by s. 15 Charter which applies to both fed and prov. Definition of 1(b) - if law pursued a valid federal objective then it was not in breach of s. 1(b) a) Rv.Burnshine Upheld provisions that gave young offenders longer sentence than adult b/c rehab of young offenders valid federal objective that justified age based distinction b) MacKay v. The Queen: court upheld provision that exposed members of armed forces to trial by military tribunal for offenses for which civilian would be tried in ordinary courts - b/c valid fed objective. c) Language of valid fed objective banished now b/c of s. 15 Charter and replaced. 3. Section 15 Charter: gives right to individual, in 4 ways; equality before the law, under the law, equal protection of the law, and equal benefit of the law. Based on race, national/ethnic origin, color, religion, sex, age, mental/physical disability. Also allows affirmative action programs for historically disadvantaged groups. 4. Application of s. 15 Charter a) Individual: rights for an individual. Probably excludes corporation. b) Law in s. 15: R.v.S(S.): Act allowed AG in provinces to enact alternative measures program to divert youngsters from court proceedings. Not in Ontario. Youngster bring action. Held that s. 15 only applies to the law. Did not apply to an exercise of discretion conferred by law, but only to the enabling law itself. c) Private action: s. 15 excludes private action from charter, so 15 does not apply to private acts of discrimination by employers, landlords, shopkeepers. But there are Human Rights Codes to prohibit private acts of discrimination, enforced by human rights commission through investigation, mediation, adjudication. These are statutes, subject to Charter. (1) Blainley v. Ontario Hockey Association: girl excluded from boys team. Challenged provision in HR code that permitted single sports team. At Ct held that breach of s15. Charter did not apply directly but by extending the scope of HR code to action that the code left unregulated, Charter gave girl remedy and had indirect impact. (2) McKinney v. University of Guelph: challenged retirement age 65 in university. Held Charter did not apply to university b/c of its virtue of independence from govt, uni held to be a private body. But Charter applied to HR Code which indirectly permitted mandatory retirement. Held that age limit was breach of s 15, but limit justified under s .1. Limit upheld. Charter did not extend the code to cover mandatory age of retirement. 5. Equality a) Four equalities of s. 15: equality before the law, under the law, equal protection of the law, and equal benefit of the law b) Absolute equality: laws never provide the same treatment for everyone. c) Similarly situated: this is a test - denial of equality made it out shown that law accorded complainant worse treatment that others who were similarly situated. Deficient test b/c little guidance in determining who is similarly situated to whom d) Formal and substantive equality: formal equality has direct effect of discriminating (no women in police allowed) Substantive equality captures indirect and direct discrimination (no one under 6 ft allowed to join police) - this gender neutral language. Substantive equality requires identification of persons who are similarly situated to take into account race, sex, disability that may make persons situation sufficiently different to require different treatment in order to be treated fairly. 6. Discrimination: s. 15 prohibits only those violations of equality that amount to discrimination - race, national/ethnic origin, religion, sex, age, mental/physical disability. a) Definition of discrimination: (1) The challenged law imposes (directly or indirectly) on the claimant a disadvantage (in the form of burden or withheld benefit) in comparison to other comparable persons (2) The disadvantage is based on a ground listed in or analogous to a ground listed in s. 15 (3) The disadvantage also constitutes an impairment of the human dignity of the claimant b) If you persuade court of 3 elements above, entitled to finding of discrimination -challenged law in breach of 15. Burden shifts to govt to justify discriminatory law under s. 1 7. Listed or analogous grounds a) Requirement of a listed or analogous ground: Andrews v. Law Society of BC: law stated members of bar had to be citizens. Held, requirement contrary to s. 15, there was a middle ground. which was to interpret discrimination in s. 15 as applying to only grounds listed in s. 15 and analogous grounds. Held that citizenship qualified as an analogous ground of discrimination. (1) After case, clear that s. 15 was a prohibition of discrimination and that discrimination involved the imposition of a disadvantage (imposition of a burden or the denial of a benefit) on an individual by reason of the individuals possession of a characteristic that was either listed in s. 15 or was analogous to those listed in s. 15


b) Addition of analogous grounds: analogous grounds are grounds that are similar in some important way to the grounds listed in s 15 (race, national or ethnic origin, color, religion, sex, age, mental physical disability). Limitation to s. 15 of analogous grounds restricts judicial review to laws that distinguish between individuals on the basis of their inherent attributes as opposed to their behavior. Court held that analogous grounds is one based on a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. (1) Recognized analogous grounds: (a) Citizenship: personal characteristic that is not w/n control of individual (b) Marital status: Miron v. Trudel: accident benefits to spouse, not common law spouses. (c) Sexual orientation: Egan v. Canada: deeply personal characteristic that is neither unchangeable or changeable only at unacceptable personal costs. (same sex couples did not succeed at seeking spousal allowance) i) Vriend v. Alberta: held that HR code violated s. 15 by failing to include sexual orientation as a prohibited ground of discrimination. ii) M.v.H: law violated s. 15 for excluding same sex couples from spousal support obligations. iii) Little Sisters: practices of customs officials in obstructing importation of books violated s. 15 iv) Requirement if opposite sex for marriage violated s. 15 - lead to legalization of same sex marriages. (2) Not analogous grounds: place of residence (except indian reserve), occupation (law denying collective bargaining to cops cannot be challenged under 15), substance orientation (law prohibiting marijuana cannot be challenged). 8. Human dignity a) Ambiguity in Andrews: breach of s. 15 occurred whenever a disadvantage was imposed on the basis of a listed or analogous ground. b)Impairment of human dignity: (1) Law v. Canada: New consensus interpretation of s. 15: (a) 15 applies to distinctions based on list of analogous grounds (b) Discrimination in 15 involved an element additional to a distinction based on a listed or analogous ground (c) That additional element was an impairment of human dignity (d) Survivor benefits paid to deceased spouse unless spouse under 35. Under normal Andrews interpretation would have age discrimination and sent case to s. 1 analysis, but now there was a human dignity requirement, claimant must prove that age based distinction was impairment of her human dignity. (e) Court: not an impairment b/c young widows have less difficulty than older persons in finding/maintaing employment, can replace lost income of spouse. (f) Human dignity has 4 contextual factors: (2nd factor was the important one in this case, usually the one it is decisive and goes to stereotyping) i) The existence of pre existing advantage, stereotyping, prejudice, or vulnerability ii) The correspondence between the distinction and the claimants characteristics or circumstances iii) The existence of ameliorative purposes or effects on other groups iv) The nature of the interest affected. (2) R.v.Kapp: every case followed above requirement until *this case*. Above burden may not need to be proved b/c sometimes impair of human dignity will be obvious, other times if claimant cannot prove it she will lose her case. Requirement doesnt even go to s. 1 analysis. c) The factor of correspondence: (2nd factor in human dignitys contextual factors): assessment by court of the legitimacy of the statutory purpose and the reasonableness of using a listed or analogous ground to accomplish that purpose. (1) Gosselin v. Quebec: low welfare benefits for person under 30 unless attended training program. Held that age based requirement corresponded to increased capability of young persons to benefit from training program. Complainant unable to establish impairment of her human dignity. Lost (2) Nova Scotia v. Walsh: excluding common law partners from community property regime, held that correspond to real differences between common law relationships and legal marriages. (3) Canadian Foundation of Children: reasonable force against children held to correspond to needs of children, correspondence factor meant there was no impairment of human dignity. (4) Nova Scotia v. Martin: held that short term remedial programs, instead of full workers compensation benefits for chronic pain did not correspond to the needs of injured workers who suffered from that condition. d) Discrimination without human dignity: R.v.Knapp - human dignity test was confusing and difficult to apply, and additional burden on equality claimants. Held that an impairment of human dignity should no longer be required element of s. 15 claim. It is still necessary for an equality claimant to establish something in addition to disadvantage baed on a listed or analogous


ground. That additional element is no longer an impairment of human dignity; it is now Discrimination =(definition) the perpetuation of disadvantage or stereotyping. Will be relying on same 4 factors of human dignity. (1) Ermineskin Indian Band and Nation v. Canada: four indian bands surrendered their interests in the oil and gas under their reserves to Crown so Crown could make arrangements w/ third parties to exploit the resources. Sued for breach of fiduciary duty, claiming return on money would have been higher if govt had invested the money in a diversified portfolio of investments. Court dismissed claim. If act precludes external investments of the bands money, argued Indian Act unconstitutional for breach of s 15 - b/c they are Indians distinguished by race of the rights that were available to non indians, whose property held in trust. (a) Held: had to show law was discriminatory - establish that law perpetuates prejudice or stereotyping. Held that Acts requirement to keep bands funds in consolidated revenue fund, as opposed to investing them, involved less control over funds by Crown and greater liquidity for bands and no risk to bands. This defeated claim w/o resorting to s. 1 analysis. 9. Disadvantage: a) Selection of comparator group: to establish discrimination under s. 14, individual must show that he has suffered disadvantage by reason of his possession of one of the characteristics named in s. 15 or an analogous characteristic. Requirement of disadvantage involves a comparison with others who are similarly situated. (1) Presence of disadvantage requires comparison between legal position of the claimant and that of other people whom claimant may legitimately invite comparison. Involves 2 inquiries: (a)Whether the group to which the claimant compares herself is the appropriate comparator group. i) Must finding group that shares w/ claimant all characteristics that qualify for the benefit except for personal characteristic that is listed or analogous to those in s. 15 (b) Whether the distinction that the law draws between the claimant and the comparator group is disadvantageous to the claimant. (2) Hodge v. Canada: Benefits to legal and common law spouses. She was common law wife, left him shortly before death. Denied benefit b/c not his wife at time of death. Held that claimant selected wrong comparator group. It was not married spouses living apart at the time of the contributors death (she argued), but former spouses. Only person who was w/ spouse at time of death is entitled to benefit. by terminating cohabitation she brought common law marriage to an end. But termination of cohabitation does not bring legal marriage to an end. All former spouses whether prior marriage was legal or common law, were treated equally. She suffered no disadvantage on account of her marital status. (3) Auton v. British Columbia: asking for funding for applied behavioral therapy for autistic children. Held that lower court used wrong comparator group. Cannot compare to other fully funded therapies b/c this was new and delayed b/c of uncertainty. Must show disadvantage compared to other comparable and novel therapies. (4) Nova Scotia v. Martin: held that statutory workers comp scheme violated s. 15 for providing only short term benefits to sufferers from work related chronic pain. Comparable group was group of workers subject to the Act who do not have chronic pain and are eligible for compensation for their employment related injuries. (5) Case turns on definition of comparable group. Distinguishes cases based on statutory schemes? b) Requirement of disadvantage: once comparator group selected, necessary to compare treatment provided by law to complainant w/ treatment provided to comparator group. Only if law treats claimant less favorably whether by withholding benefit or imposing burden, the claim of disadvantage or unequal treatment made out. (1) Eaton v. Brant County Board of Education: put exceptional pupils w/ special disabilities in special education program. Held that putting them in separate class room was not a breach of s. 15. Evidence showed segregated setting in best interests of child, could not be characterized as putting a disadvantage on the child. Thus, there was no discrimination under s. 15 c) Objective and subjective disadvantage: subject standard is according to plaintiff bringing the case if she believes she is being discriminated against, suffering disadvantage. Law v. Canada wants both tests to be used, look at requirements of s. 15 from subjective and objective perspective. Inquiry taken from claimants view, but it must be supported by an objective assessment of the situation - so objective perspective is the decisive one. d)Human dignity and disadvantage: (1) Nova Scotia v. Walsh: held that a reasonable person who shared attributes and circumstances of claimant would find that claimants human dignity had not been impaired by her exclusion from the shared property regime. (those that were in common law partners were better off than those married). (2) Canadian Foundations for Children: held that human dignity of children not repaired - did not rest opinion on disadvantage. (after Kapp got rid of human dignity, and brought in discrimination which absorbs disadvantage requirement). (3) Ermineskin Indian Band and Nation v. Canada: held features were not discriminatory in the sense of perpetuating prejudice or stereotyping. Straight forward conclusion: Investment provisions entailed prudent practices and did not impose a disadvantage on the Indian Bands


e) Group disadvantage: no notes. Direct and indirect discrimination: a) Substantive equality: laws that are discriminatory on their face are direct discrimination. Laws that have discriminatory effects are indirect. (aka systematic or adverse-effect discrimination). Substantive equality: theory of equality that covers direct and indirect discrimination. Law may be discriminatory in application (no discriminatory qualifications for police admissions but would be discrim of police procedures lead to rejection of females). This is breach of substantive equality and s. 15. If only discriminatory in application, s 15 will not lead to invalidity. (1) Sec 15 applies to 1) laws that are discriminatory on their face 2) in effect, 3) in its application (Andrews). s. 15 requires substantive equality not merely formal quality. (2) Only two cases of indirect discrim successful: Eldridge, held law discriminated against deaf ppl breach s 15. Vriend held discriminate against homosexual orientation breach of s15 - hr code did not include sexual orientation as list of forbidden grounds of employment. b) Unintended discrimination: intent is not required for discrim under s. 25. Mere fact that law had a disproportionate effect on persons defined by prohibited category is enough to establish breach of 15. Law is in breach of Charter right if either its purpose or effect of law is to abridge a Charter right = discriminatory purpose or discriminatory effect. Purpose of law always relevant to justification under s 1 b/c law cannot be justified unless serves an important purpose that is compatible w/ values of free and democratic society. (rarely saved) c) Reasonable accommodation: depart from law if necessary to make reasonable accommodation of class that is discriminated against, due to effect, otherwise law is neutral. Also issue of the form of reasonable accommodation required by s. 15 (Eaton: best interests of child to go to special classroom) 11. Justification under s. 1: Newfoundland v. NAPE: held breach of human dignity to maintain in force wages that did not do justice to female workers contribution, breach of 15 (first case to be saved under s. 1b/c of human dignity requirement). When law enacted, prov was going to through reduction in fed transfer payments, postponement of pay equity agreement justified under s. 1 as response to fiscal crisis. 12. Affirmative action: s 15 does not preclude affirmative action or equity programs in favor of disadvantaged individuals/groups - s. 15(2). Not clear if this is exception or clarification of s. 15(1). If exception, unnecessary to go to s. 1 b/c law will have benign purpose. a) R.v.Kapp: not an exception. Role of (1) to prevent govt from discrimination, (2) to enable govt pro actively to combat discrimination. (2) had independent role, not clarification. If Affirmative action meets requirement of (2), then program valid under 15(2), and no 15(1) analysis needed. If failed, then 15(1) needed to determine if program discriminatory. (1) Facts: special communal commercial fishing license for Indian bands, exclusively for 24 hr period before other non aboriginal commercial fishing licenses took effect. Non members of indian bands held protest fishery for 24 hours, charged w/ fishing while fishing prohibited. Held that license was restricted by race, but its object was to ameliorate conditions of 3 indian bands who were disadvantaged groups, therefore, covered by 15(2) and not necessary to engage in 15(1) analysis. (2) Cannot attack program under 15(1) so long as 1) group is disadvantaged and the program 2) purpose is to improve conditions of group. 13. Discrimination permitted by Constitution a) Age in ss. 23, 29, 99: person under 30 cannot be appointed to senate, senator must retire at 75, judge must retire at age 75. Age discrimination, but never attacked. b) Race in s. 91(24): R.v.Drybones: struck down provision of indian act that made it an offense for an indian to be drunk off a reserve, stating that use of term indian was offense contrary to equality clause in Can Bill of Rights. Later attacks on Act: held that differences btn Indians and non Indians were contemplated by s. 91(24) of Constitution, such differences should not be eradicated under equality guarantee of Can Bill of Rights. Thus, also should not be vulnerable to attack under s. 15 c) Religion in s. 93: Ontario Separate School Funding case: full public funding to roman catholic separate schools up to gr 10. Other religious schools received no funding. Court upheld statute on basis that distinctive treatment of roman catholic school supporters expressly permitted by Constitution. d) Province of residence in ss. 91, 92: Held that place of residence is not analogous grounds. Differences btn provincial laws cannot amount to discrimination under s 15 b/c that would require uniformity of prov laws which would be contrary to distribution of powers in ss 91 and 92. e) Citizenship in s. 6: give guarantee to remain in canada for citizens. Thus, Immigration Act can deport non citizens who have committed criminal offenses, threat to national security, not in breach of s. 15 although normally would be. Andrews: struck down prov law that restricted entry to law society to citizens only. Lavoie: hiring preference for fed public service held to be in breach of s 15, saved under s 1. Held that laws imposing disabilities on non citizens were not exempt from constitutional equality standards, this would not abolish the concept of citizenship. 10.


f) Language in ss. 16-23: language rights, equality of French & English, gives special status to both & not other minority languages. 14. Race: restricted by 15(1), would be upheld if affirmative action under 15(2), and may s 1 if outside of 15(2) but had a benign purpose of affirmative kind. Special status of indians reinforced by s. 35 Constitution and 25 Charter. Thus, s 15 has limited role for aboriginal peoples. Laws enacted by fed under 91(24) for benefit and laws that effect to aboriginal or treaty rights are not affected by s. 15 Charter 15. Religion: is prohibited ground. Public funding for religions schools would be forbidden but s 93 Con guarantees rights of denomination schools that existed at confederation (roman catholic), this no s. 15 challenge is open. Alta: held that universal photo requirement for drivers license did not create distinction based on religion under s. 15. Law upheld under s. 1 16. Sex: prohibited ground s 15. a) Direction discrimination: (1) AG Can v. Lavell: indian act took indian status away for woman who married non indian man, vice versa did not take away status. (2) Bliss v. AG Can: Act denied unemployment benefits to women if employment interrupted by pregnancy. Court rejected b/c disadvantaged class was defined by pregnancy rather than sex. (but only women get pregnant). HR Code decision overruled this. (3) R.v.Hess: Held statutory rape did not offend s. 15 (young female under 14) but only men biologically can penetrate. Did Bliss argument all over again. Concurrence: offense was discrimination by sex, although justified under 1 as measure of protection of young females, who unlike makes, would run risk of pregnancy through intercourse. (4) Weatherall v. Canada: Even if there was a breach of s 15, justified under 1 - equality did not demand men an women always be treated equally the same way and effect of cross gender searching was different and more threatening for women than for men (challenge to frisk searches and cell surveillance of male prisoners by female guards at fed penitentiary) (5) Benner v. Canada: struck down law under s 15, that distinguishes between children born to canadian mothers (more security screening) vs. born to canadian fathers. (6) Trociuk v. British Columbia: held that law distinguished on basis of sex, since fathers disadvantaged in comparison w/ mothers (law allowed mother to choose childs surname on birth certificate) Held that exclusion of fathers from registration and naming process impaired their human dignity. Not justified under s. 1 (7) Newfoundland v. NAPE: delayed for 3 years intro of pay equity for female workers in hospital sectors, that was supposed to bring female wages up to comparable male workers. No provision for retro active pay for delay period. Held Act was breach of s 15 but saved by 1 b/c Act in response to financial crisis in province that provided justification for limit on claimants charter rights. b) Systematic discrimination: most provisions that discriminate women have been removed from statutes. (1) Symes v. Canada: tax act offended s. 15 by not allowing business persons to deduct full costs of child care. Act allowed for deduction of child care but limited to $2,000. Women paid $13,000. Court acknowledged women disproportionately bore social costs of child, but held that tax payer had not established that women disproportionately bore financial costs of child care. Since deduction available w/ respect only to financial costs of child, it would benefit men as much as women and restriction did not amount to discrimination on basis of sex. c) Section 28: rights in Charter are guaranteed equally to men and women. - basically that provisions apply w/o discrimination. Strong guarantee than s 15: (1) Three year delay in s 15 coming into force (by virtue of s 32(2) did apply to s 28 (2) Power of legislative override under s 33 applies to s 15 but not s 28, and (3) It is possible that even limitation under s 1 does not qualify under s 28 b/c of its opening words not withstanding anything in this Charter 17. Age: discrimination of this prohibited by s. 15. Immutable, cannot be changed. a) Law v. Canada: held law not discriminatory b.c it did not impair human dignity. (law excluded under age 35 from benefits of dead spouse employment b/c older ppl less capable of finding support). b) Gosselin: law not discriminatory b/c did not impair human dignity - 1/3 of social assistance benefits paid to under 30 yrs, could get standard if participated in educational program - law assumed youngsters more able to benefit from training and education, get jobs. c) Wynberg v. Ontario: law gave therapy to autistic children 2-5. Held program on basis that it did not impair human dignity of children aged 6 and over. Program aimed at younger b/c expert opinion that very young children responded best to therapy. Therapy was so intense 20-40 hours per week that i t was not possible to give it to children who attended school full time. d) Mandatory retirement age: Most cases are outside of scope of Charter, except community college b/c more tightly controlled by govt. Held that mandatory retirement was discriminatory by age and thus violated s. 15. But Court by a majority went on to decide mandatory retirement was saved by s.1 (this created opening for younger faculty).


e) Tetreault-Gadoury v. Canada: unemployment insurance denied benefits to persons over 65. Held that provision violated s 15 but could not be justified under s.1 (1) Different from Universities in McKinney: (a) University was a closed system w/n limited resources (b) Faculty renewal was crucial to extending the frontiers of knowledge (c) The academic freedom required a minimum of performance review up to retirement age. (2) Second and third do not apply to non uni work in public and private. 18. Mental or physical disability: discrimination grounds prohibited by s. 15. Immutable, cannot be changed. a) Eaton v. Brant: court stated that school system had to accommodate to special needs of disabled children, but did not stipulate what type of accommodation. Held that s. 15 right belonged to child, not parent, and schools accommodation must be driven by the best interests of child - putting child in special classes out of regular classroom - this fully complied w. s 15 b) Wynberg: autistic program for 2-5, wanted it for older children too. Court rejected disability claim (and age), held therapy not appropriate accommodation for school children b/c it was time consuming and intensive, and could not be fitted into full time school program w/o abandoning most of the other instruction. c) Winko v. BC: challenge to crim code that verdict of Not Criminally Responsible on Account of Mental Disorder. Person assessed, and then directed to be discharged absolutely, discharged conditionally, or detained in custody in a hospital. Argued s. 15 treated mentally ill offenders differently than other offenders. Held provisions did not impair human dignity of those found not criminally responsible. Provisions recognized ill offenders should not be punished but be provided with rehab treatment. Restrained only to extent judged necessary to protect the public. d) Granovsky v. Canada: pension plan provided that must prove permanent disability and that they contributed 5 of the previous 10 years or 2 of the previous 3 years. G could not establish requirement b/c permanently disabled long before could not work. Could use drop out provision b/c periods of non contribution had been caused by a temporary disability. Held denial not a breach of s. 15 e) The Court is likely to defer to a legislated effort to accommodate persons with disabilities and is not inclined to substitute different remedies, draw qualifying lines in different places, or otherwise redesign the legislated scheme. f) Nova Scotia v. Martin: Struck down provisions of chronic pain in works comp. Program not appropriate answer for those w/ chronic pain b/c it lasts longer than 4 weeks. Distinction based on physical disability, even though members of the comparison group were also disabled. Distinction impaired human dignity of chronic pain suffers and counted as discrimination that was prohibited by s. 15, could not be justified under s. 1 g) Eldridge: held that bc health care plans did not accommodate special needs of deaf people seeking medical services. (publicly funded sign language interpretation). Held, breach of s 15, communication is essential part of services, denial of equal benefit to deaf people. h) Rodriquez: assisting suicide, physically disabled to the .point unable to kill herself w/o assistance. Able-bodied contrast, free to commit suicide w.o assistance. Discriminated by ground of physical disability? Held that prohibition in any case would be justified under s. 1 19. Citizenship: analogous to those mentioned in s. 15. Andrews citizenship requirement for joining the law society 20. Marital status: is analogous. Miron v. Trudel: law excluded common law partners from receiving insurance. Nova Scotia v. Walsh: matrimonial property upheld. Held that exclusion of unmarried cohabitants did not impair human dignity. B/c assumption that got married committed themselves to a relationship and contributing to each others assets. 21. Sexual orientation: analogous to those mentioned in s. 15. Egan: held federal old age security act offended s. 15 by making spousal allowance available to spouse of opposite sex but not same sex partner. Provision upheld under s. 1. a) Vriend v. Alberta: held that HR statute offended s. 15 by failing to provide a remedy for a person who was discriminated against by his employer on the basis of sexual orientation. Not saved under s. 1, Alberta failed to show legitimate legislative goal that would advance failure to protect homosexuals from discrimination based on sexual orientation. b) M.v.H: held that exclusion of persons in same sex relationship from the spousal support obligations was unconstitutional. Analogous to s. 15, also impaired human dignity by implying same sex peoples are less worthy of protection than opposite sex. Not saved under s 1 b.c goals were to make equitable provision of the economically weaker spouse on the breakdown of a relationship and to ease the burden on public purse. c) Canada v. Hislop: same sex partners that died before 1998 were ineligible for survivors benefits, challenging remedial law. Held that s. 1 required that eligibility for survivors pension had to be made retroactively to apr 15, 1985 when s 15 came into force. Appropriate comparison was opposite sex couples whose partners died btn 1985 and 1998. Held that parliament can make payment of benefits prospectively only and payment provisions were upheld. d) Little Sisters: Court agreed that customs did target imports of Little sisters b/c homosexual content. Dignity diminished by different treatment. Breach of 15, But discrimination was inherent in definition of obscenity which applied to both homo and hetro material w/o differentiation. Discrimination occurred at administrative level, not legislation, remedy was not to strike down the law but to insist on even handed and sensitive admin of legislation.


e) Opposite sex requirement for marriage constituted discrimination on ground of sexual orientation, violation of s 15, not saved under s. 1 22. Place of residence: is NOT an analogous ground, lacks element of immutability that is common on listed grounds and is required for the analogous grounds. a) R.v.Turpin: rejected argument that crim code that allows to be tried by judge alone is invalid in Ontario b/c they would have had option if they were tried in Alberta. b) Corbiere v. Canada: held that aboriginality-residence was an analogous ground and that the voting requirement being based on that ground was a breach of s 15. However, decision confined to off reserve band member status. It cannot be breach of s15 that some laws like min wage is higer in Manitoba than it is in PEI, this has to do w/ separation of powers. Cannot be subject of s. 15 challenge. c) R.v.S.(S): rejected argument - for reasons above. Ontario had no Young Offenders Program and other provinces did. Distinctions baed on prov of residence did not constitute discrimination within s. 15 (differences prov laws can never amount to discrimination b/c of the federal principle). d) Distinctions btn fed laws based on province of residence would usually be accepted as a proper reflection of federal values. Distinctions based on province of residence that are caused by different laws in different provinces will always be accepted as an inevitable outcome of a federal system. Provinces that make distinctions btn municipalities should also not be held in breach of s. 15 plebiscite. 23. Occupation: is NOT an analogous ground, it lacks immutability that is common in listed grounds and is required for analogous grounds. a) Delisle v. Canada: Exclusion of RCMP from federal public services staff relations act, is not a breach of s. 15 (thus rcmp unable to form a certified trade union w/ the right to bargain collectively and strike). But distinction btn occupations groups cannot be challenged under s. 15 b/c occupational was not functionally immutable characteristic that could qualify as an analogous ground. Rejected freedom of association argument b/c had common law right to associate even though no statutory rights of collective bargaining. b) Dunmore v. Ontario: held exclusion of agricultural workers from Ontarios Labor Relations Act was breach of 2(d) and could not be saved by s. 1. Equality claim - workers wanted to be treated equally like other workers to whom act did not apply. Not necessary to consider s. 15 b/c remedy could be under 2(d). This case allows occupation to be a ground of unconstitutional discrimination by the device of importing an equality value into the guarantee of freedom of association. c) Health Services Bargaining Case: Act purported to override some rights possessed by the provinces unionized health care workers under their collective agreements. Because the act substantially interfered w/ terms of collective agreement, it was invalid. Court: adverse effects of Act on health care workers relate essentially to the type of work they do, and not to the persons they are. There was no differential treatment based on personal characteristics. Once again, occupational status was rejected as an analogous ground. 24. Andrews v. British Columbia a) Facts:Andrews was a British citizen and a lawyer. He moved to Canada and attempted to join the Law Society of British Columbia. He passed all of the necessary tests for individuals with international degrees, however he was not allowed to become a member Act limited membership to Canadian citizens. He sued the Law Society claiming that this provision is contrary to s. 15 of the Charter. Society successful at trial, overturned on appeal, now appeals. b) Issue:whether the requirement of Canadian citizenship for admission to the British Columbia bar is an infringement upon or denial of the equality rights guaranteed by s. 15(1) of the Charter. And if so, whether it is justified under s. 1. c) Reasoning: What is truly meant by protecting equality is that it must be ensured that everyone is treated fairly under the law, and is not treated differently because of a characteristic that has no legal bearing. (1) the section is not a general guarantee of equality, rather it is only concerned with equal application of the law. It was further stated that it should be recognized that not all differences in treatment will result in inequality and that identical treatment may result in inequality. (2) the suggestion to apply the same legal rules to groups or individuals who are "similarly situated" ("similarly situated test" where likes are treated alike and dislikes differently) was firmly rejected. (3) Discrimination may be described as a distinction, whether intentional or not but based on grounds relating to the personal characteristics of the individual or group which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individuals merits and capacities will rarely be so classified.


(4) discrimination must be based on an "enumerated or analogous grounds", and the individual seeking to strike down a law must demonstrate the existence of differential treatment based on either of the two grounds. From there the onus shifts to the Crown who must show the law justified under s. 1. (5) 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. I agree with him also that it discriminates against them on the ground of their personal characteristics, i.e., their non-citizen status. I believe, therefore, that they are entitled to the protection of s. 15. d)Rule/Test for s. 15 violation: (1) In order for a law to violate s. 15(1) of the Charter three things must be established: (a) differential treatment, (b) differential treatment made on the basis of an enumerated or analogous (open to interpretation) ground, and (c) the effect of the legislation imposes a disadvantage (2) If these are satisfied, it must be determined if the law is justified by s. 1 using the Oakes test. e) Analysis: s.42 violates s.15 of the Charter as it treats non-citizens differently on an analogous ground to those enumerated in the Charter and that it imposes a disadvantage on them as they cannot work as a lawyer. Everyone except for McIntyre agrees that this violation is not justified by s.1 (1) The majority find that these are not saved by s.1 as they can be established by other means (tests to ensure non-citizen lawyers understand Canadian customs), being a citizen doesnt necessarily mean you are connected to the country, and finally that lawyers do not really play a role in governing our country. f) Section 1 Test (1) the objective sought to be achieved by the impugned law must relate to concerns which are "pressing and substantial" in a free and democratic society (2) the application of a proportionality test which requires the Court to balance a number of factors. The Court must consider the nature of the right, the extent of its infringement, and the degree to which the limitation furthers the attainment of the legitimate goal reflected in the legislation. g) Holding: section 42 of Barristers and Solicitors Act violated s. 15 and it could not be saved under s. 1. Appeal dismissed. 25. R.v.Kapp: a) Facts: Aboriginal Fisheries Strategy. A significant part of the Strategy was the introduction of three pilot sales programs, one of which resulted in the issuance of a communal fishing licence to three aboriginal bands, permitting fishers designated by the bands to fish for salmon in Fraser River for a period of 24 hours. The appellants, who are all commercial fishers, mainly non-aboriginal, excluded from the fishery during this 24-hour period, participated in a protest fishery and were charged with fishing at a prohibited time. At their trial, they argued that the communal fishing licence discriminated against them on the basis of race. b) Issue: How does s.15(2) of the Charter interact with s.15(1)? c) Reasoning: The communal fishing licence falls within the ambit of s. 15(2) of the Charter, and the appellants claim of a violation of s. 15 cannot succeed. (1) Section 15(1) and s. 15(2) work together to promote the vision of substantive equality that underlies s. 15 as a whole. 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. (2) The focus of s. 15(2) is on enabling governments to pro-actively combat discrimination by developing programs aimed at helping disadvantaged groups improve their situation. Through s. 15(2), the Charter preserves the right of governments to implement such programs without fear of challenge under s. 15(1). (3) The subsection protects any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups. (4) It is thus open to the government, when faced with a s. 15 claim, to establish that the impugned program falls under s. 15(2) and is therefore constitutional. If they government is able to do this, then the s.15(1) claim must fail. The claim will end here, and the rest of the s.15(1) (5) Because the licenses were issued pursuant to a federal statute, they fall under the definition of "law, program or activity" within s.15(2). If the government shows this, the claim fails; however, if the government cannot show this then the rest of the s.15(1) analysis must proceed. (6) the ameliorative program must only have amelioration as its purpose; the effect is not to be considered. However, the purpose that the government sets out does not need to be accepted; the courts can find what the true purpose is. The sincere purpose must be to promote equality by ameliorating the conditions of a disadvantaged group. This does not need to be the sole purpose of the program, however the more importance that this purpose is given in the program the more likely it is that the program will fall under s.15(2). In order to show that the program had an ameliorative purpose the government must show that there is a correlation between the program and the disadvantage of the group.


d)Rules: (1) When a claimant makes a s.15(1) discrimination claim they must first prove that a distinction has been drawn on an enumerated or analogous ground. After they have proven this, the government has the opportunity to prove that the program in question falls under s.15(2) (2) A distinction based on an enumerated or analogous ground in a government program will not constitute discrimination under s. 15 if, under s. 15(2): (a)The program has an ameliorative or remedial purpose; and (b) The program targets a disadvantaged group identified by the enumerated or analogous grounds. Given the language of the provision and its purpose , legislative goal is the paramount consideration in determining whether or not a program qualifies for s. 15(2) protection. (3) To fall under s.15(2), the program must only have a sincere ameliorative purpose; the effects are not to be strictly considered (the burden is on the government to prove that the purpose is sincerely to promote the amelioration of the disadvantaged group; they must prove that there is a correlation between the program and the disadvantage of the group). (4) Although the ameliorative purpose does not need to be the sole purpose of the program, the more important the ameliorative purpose is, the more likely it is that the program will fall under s.15(2). (5) The fact that not all members of the group being helped by the program suffer disadvantage is not important so long as there is a group disadvantage suffered by the group targeted by the program. e) Analysis: The program also has as its object the amelioration of conditions of disadvantaged individuals or groups. The Crown describes numerous objectives for the program, which include negotiating solutions to aboriginal fishing rights claims, providing economic opportunities to native bands and supporting their progress towards self-sufficiency. The means chosen to achieve the purpose (special fishing privileges for aboriginal communities, constituting a benefit) are rationally related to serving that purpose. Program does not violate the equality guarantee of s. 15 of the Charter. The fact that some individual members of the bands may not have had personal disadvantages is immaterial, as it does not negate the group disadvantage suffered by the band members f) Conclusion: g) Held: The appeal should be dismissed. The communal fishing licence was constitutional. 26. Withler v. Canada (Attorney General): widows whose federal supplementary death benefits were reduced because of the age of their husbands at the time of death. The appellants contend that those provisions are of no force and effect because they infringe s. 15(1) of the Charter and are not justified under s. 1. They seek a monetary judgment in the amount by which their supplementary death benefits were reduced. a) Issues:.whether the Reduction Provisions discriminate against the claimants. The appeal, viewed broadly, calls for clarification of the role of mirror comparator groups and comparison in the s. 15(1) analysis. More precisely, the issue is how an analysis under s. 15(1) is to proceed where the impugned law is part of a wide-reaching legislative scheme of government benefits. b)Reasoning: (1) The central and sustained thrust of the Courts s. 15(1) jurisprudence has been the need for a substantive contextual approach and a corresponding repudiation of a formalistic treat likes alike approach. An analysis based on formal comparison between the claimant group and a similarly situated group promotes formal, not substantive equality. (2) A mirror comparator group analysis may become a search for sameness, may shortcut the substantive equality analysis and may be difficult to apply. While equality is inherently comparative and comparison plays a role throughout the s. 15(1) analysis, a mirror comparator approach can fail to identify and may, indeed, thwart the identification of the discrimination at which s. 15 is aimed. What is required is an approach that takes account of the full context of the claimant groups situation, the actual impact of the law on that situation, and whether the impugned law perpetuates disadvantage to or negative stereotypes about that group. c) Rule: (1) The jurisprudence establishes a two-part test for assessing a s. 15(1) claim: (Kapp) (a) Does the law create a distinction that is based on an enumerated or analogous ground ? and i) An analogous ground is one based on a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity (b) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? i) The first way that substantive inequality, or discrimination, may be established is by showing that the impugned law, in purpose or effect, perpetuates prejudice and disadvantage to members of a group on the basis of personal characteristics within s. 15(1). ii) The second way that substantive inequality may be established is by showing that the disadvantage imposed by the law is based on a stereotype that does not correspond to the actual circumstances and characteristics of the claimant or claimant group.


iii) Contextual factors: who the legislature intended to benefit & why, the nature and purpose of the impugned legislation in relation to the claimants situation, the impugned distinction discriminates by perpetuating the groups disadvantage or by stereotyping the group (2) The claimant must establish that he or she has been denied a benefit that others are granted or carries a burden that others do not, by reason of a personal characteristic that falls within the enumerated or analogous grounds of s. 15(1). It is not necessary to pinpoint a mirror comparator group. (3) person must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory. (4) Jurisprudence:. d)Analysis: (1) Since the Reduction Provisions at issue in this case are age-related, they constitute an obvious distinction on an enumerated ground, but, because the age-based rules are, overall, effective in meeting the actual needs of the claimants and in achieving important goals such as ensuring that retiree benefits are meaningful, they do not violate s. 15(1). (2) Pension benefit schemes are designed to benefit a number of groups in different circumstances and with different interests, and each element of the scheme must be considered in relation to the suite of benefits provided. As a broad-based scheme meant to cover the competing interests of various age groups, distinctions on general criteria, including age, had to be made to address the members different needs over the course of their working lives. (3) When the supplementary death benefit is considered in the context of the other pensions and benefits to which the surviving spouses are entitled, it is clear that its purpose corresponds to their needs. (4) For younger employees, it acts as group life insurance by insuring against unexpected death at a time when the surviving spouse would not be protected by a pension. For older employees, whose spouses long-term income security is guaranteed by the survivors pension coupled with the public services health and dental plans, it is intended to assist with the costs of last illness and death. e) Held: appeal should be dismissed. Not discrimination/violation of s. 15 K. REMEDIES - Ch. 40 Enforcement of Rights 1. Supremacy Clause a) Section 52(1): gives charter overriding effect, any law inconsistent is of no force or effect. b) Section 24(1) compared: charters own remedy clause, authorizes court of competent jdx to award a remedy for breach of charter. (1) Difference w/ this and 52: (a) s 24(1) applicable only to breaches of Charter and s52(1) is applicable to entire constitution including charter. (b) s 24 is available in some circumstances to persons whose rights have not been infringed (c) s 24 may be applied only by a court of competent jdx. 52 may be applied by any court/ tribunal with power to decide questions of law (d) s24 authorizes the award of a wide range of remedies, 52 authorizes only a holding of invalidity, leaving it to general law to authorize particular remedy (e) s24 confers a discretion on the court as to whether any remedy should be awarded, 52 confers no discretion on court, requiring court to make holding of invalidity if it concludes that a law/act is inconsistent w/ Con. (2) Choices of Remedies available to court under 52(1) (a) Nullification: striking down statute that is inconsistent w/ Con (declaring invalid) (b) Temporary validity: striking down but temporarily suspending the coming int force of the declaration of invalidity (c) Severance: holding that one part of statute is inconsistent, striking down only that part (d) Reading in: adding words to statute that is inconsistent, so as to make it consistent w/ Con and valid (e) Reading down: interpreting a statute that could be interpreted as inconsistent w/ Con so that it is consistent w/ Con (f) Constitutional exemption: creating exemption from statute that is partly inconsistent w/ Con so as to exclude from the statute the application that would be inconsistent c) Nullification: requires court to hold that unconstitutional law is invalid. If law is found by court to be inconsistent w/ the Charter or rights, the court is obliged to strike the law down. If criminal case, D entitled to acquittal. If civil, party relying on invalid law will lost the legal basis for case. d) Temporary invalidity: courts assume power to postpone the operation of the declaration of invalidity. Effect is to grant a period of temporary validity to an unconstitutional statute, b/c the statute will remain in force until the expiry of the period of postponement. (Re Manitoba language rights)


(1) Cases that did not involve unconstitutional legislation, but still given time: Brudges, Askov, Feeney (2) R.v.Swain: gave 6 month period of temporary validity so judges would not be compelled to release all insanity acquittees. Period allowed Govt to enact replacement provisions. Provisions allowed detention in psychiatric facility of person acquitted on ground of insanity, but cannot have complete release either b/c did serious offense, possible threat to community. (3) Schachter v. Canada: held that provision of unemployment insurance act offended s. 15 equality b/c allowed more generous child care benefits to adoptive parents than to natural parents. Remedy is to strike down but declaration of invalidity to allow govt to determine whether to cancel/extend benefits. Govt amended act, so no need to declare invalidity or suspend. Held, preferable for court to rectify the statute of severance or reading in where remedies are appropriate. If not appropriate, declaration of invalidity had to be made then Court could provide for a temporary suspension of the declaration of invalidity of certain cases. (a) Cases where immediate striking down would: 1) pose danger to public 2) would threaten the rule of law, 3) would result in the deprivation of benefits from deserving persons. (b) This limited declarations of invalidity to situations where danger, disorder, or deprivation would be caused. Suspended declaration can be seen as form of legislative remand, whereby unconstitutional legislation is sent back for reconsideration in light of the courts judgment. (4) Immediate declaration of invalidity would leave a gap in the law for the period required to draft and enact new legislation. (5) Suspended declaration of invalidity is delayed in coming into force, but if and when it comes into force it has the normal retroactive effect of a court order. Operates to invalidate the unconstitutional statute from the time of its enactment. e) Severance: only part of the statute is held to be invalid and rest can independently survive. Bad part of statute will be struck down and severed from good part. Usually happens (invalidity of felony murder rule does not entail striking down the entire criminal code. It is a doctrine of judicial restraint b/c its effect is to minimize the impact of a successful Charter attack on the law. Not designed to alter the meaning or effect of the remainder of the statute that survives. Also used to repair a statutory provision that was invalid in language in which it was enacted - used to amend the defective stat provision by deleting the words that caused the constitutional problem. (1) R.v.Hess: statutory rape provision, eliminated mens rea. Struck down unconstitutional words. No new words inserted to import mens rea requirement. (2) Tetreault-Gadoury v. Canada: breach of s 15 Charter to restrict unemployments to persons under 65. Court invoked power of severance to remove age 65 bar form Act. Now over 65 can receive it too. Law was under-inclusive; failed to include class of ppl over 65. To invalidate it would be harsh b/c now under 65 cannot receive benefit either. Alternative was to extend statutory benefit. (3) Benner v. Canada: Citizenship act breached s. 15 b/c difference btn children of canadian fathers & mothers born abroad. Gave automatic right of citizenship (like fathers children) to those born to canadian moms, this less disturbed legislative scheme - severed phrases. f) Reading in: (1) Schachter: court can read in new language to remedy constitutional defect, this cured class of natural parents to the statutory provision benefiting adoptive parents. Not appropriate to read in here b/c objective of making a special provision for adoptive parents was not clear, therefore, cannot assume adding natural parents would be consistent w/ legislative objective. Would cause major increase in scope/cost of child care benefits. Held appropriate remedy was to declare invalidity suspended for a sufficient time to enable parliament to enable act into conformity w/ constitution. (a) Reading in would be a legitimate remedy akin to severance. Reading in appropriate in clearest cases where i) The addition of excluded class was consistent w/ legislative objective ii) There seemed to be little choice as to how to cure the constitutional defect iii) The reading would not involve a substantial change in the cost of nature of the provision would be an inferior remedy. iv) The alternative of striking down the under-inclusive provision would be an inferior remedy. (2) Miron v. Trudel: appropriate remedy was to read in to definition of spouse new language that would include unconstitutionally excluded class of common law spouses for Insurance benefits. (Govt already amended Act after COA arose). Court ordered that language of amendment be made retroactive to claimants claim. (3) Vriend v. Alberta: read in sexual orientation into statutory list of grounds of prohibited discrimination. Would be consistent w/ objective of Act, would not add to costs of administering, less intrusive than striking down entire Act. g) Reading down: when statute has two interpretation, one would offend Charter other would not, Court will latter interpretation which is normally the narrower one (hence reading down) the correct one. Doctrine of judicial restrain b/c minimizes impact of successful Charter attack on law.


h) Constitutional exemption: from otherwise valid legislation that would be unconstitutional in its application to particular individuals or groups. (1) Sunday closing law: exemption enables court to uphold law that is invalid in most of its applications by creating exemption for those applications that would offend the Charter. But scope must be defined by Court (disadvantage). (2) R.v.Seaboyer: crim code provision restricting evidence that may be adduced by the accused in sexual assault cases of the past sexual activity of the complainant. Constitutional exemption would have effect of striking down the section b/c admissibility of evidence under con exemption would be governed by common law notions of relevance. Case rejects constitutional exemption as salvation of what Court regarded as overbroad rape shield law. (3) R.v.Smith: minimum sentence was unconstitutional for all cases. (4) R.v.Ferguson: cops gun went off and shot violent prisoner while he was trying to put him into jail cell. Convicted of manslaughter Court held no basis for concluding four year sentence was grossly disproportionate and giving constitutional exemption from sentence of 2yrs less a day. After this case, no need to consider the availability of constitutional exemption. Held constitutional exemption from min sentence was not a remedy that was available to a D in a rare, exceptional, or unusual case where min sentence would be grossly disproportionate. Remedy in such case would be to strike down law in its entirety. (a) Reaffirmed holding in Smith that if min sentence is grossly disproportionate in any of its applications, however rare or unusual, duty of the sentencing court is to strike down the law. Overbroad law cannot be salvaged by creating a constitutional exemption for the particular rare case. (b) Decision limited to minimum sentence cases, and does not necessarily foreclose granting of constitutional exemption in some other kind of case. i) Reconstruction: general rule of prohibiting court from reconstruction of unconstitutional statute. Hunter v. Southam: Court struck down stat provision and left parliament to enact an amendment that would satisfy constitutional requirements. (1) Exception: rare case where offending law is a rule of the common law. R.v.Swain: common law rule allows prosecutor in crim trial to adduce evidence of accuseds insanity against wish of accused. Held, rule violated s. 7 b/c evidence would limit right of accused to conduct his own defense. Held, not necessary to strike down existing law b/c it was a rule of judge mad common law, not statute, The Court had the power to replace existing rule w/ new rule that complied w/ Charter. Court declared that new rule fashioned to comply w/ Charter was now the law. 2. Remedy Clause a) Section 24(1): provides for granting a remedy to enforce rights or freedoms guaranteed by Charter b) Applicable to Charter only: only available for breach of Charter. c) Non-exclusive remedy: s 24 is not the exclusive remedy for Charter breach. supremacy clause 52(1) renders of no force or effect any law that is inconsistent w/ the Constitution of Canada - this authorizes court to hold that a law abridges a Charter right is invalid. S 24 is needed only where remedy provided by general law is not available for some reason or will not provide satisfactory redress. Generally, 52(1) provides remedy for laws that violate Charter rights. 24(1) provides remedies for government acts that violate individuals charter right. (personal remedy) (1) Can use both sections in one case for redress. R.v.Demers: held provisions of crim code respecting accused persons who were found permanently unit to stand trial were unconstitutional for overbreadth. 1) suspended declaration for 1 year for parliament to enact new law - 52 remedy. 2) 24 remedy was that in event govt did not act w/n a year those persons permanently unfit to stand trial who were found to be no danger to public should have proceedings stayed. d) Standing: for sec 24(1) applicants own rights must have been infringed/denied, need standing. (no reasonable expectation of privacy in anothers apartment; (1) Corp can challenge law under 52(1) supremacy clause , s .24 not needed. Held that corp can defend criminal charge under Sunday closing law on ground that law was a denial of the freedom of religion of individuals. Under 52 a person motivated by public interest wishes to make Charter challenge that does not apply to challenge - but cannot do this under 24. Standing requirements are more generous under 52, then 24. e) Apprehended infringements: imminent threat of Charter violation will satisfy s. 24(1) (1) Can have remedy for eng speaking parents who are denied by statute their charter right to sen children to eng speaking school. Can bring application before school year and before child denied admission. (2) R.v.Demers: remedy for infringement that it feared might occur in future. Suspended declaration for 1 year for parliament to enact new law. BUT In event govt did not act w/n a year those persons permanently unfit to stand trial who were found to be no danger to public should have proceedings stayed. f) Court of competent jurisdiction: sect 24(1) remedies may only be granted by court of competent jdx. 52(2) is by any court or tribunal. 24: superior court. Trial court, even if not superior court, is competent jdx to hear application of remedy if it relates to trial (eg: exclusion of evidence obtained in violation of charter) Not necessary to make separate application to superior court. If separate application made, superior court will decline b/c trial judge is in best position to assess. If D charged w/ crim offense and


not given trial dat yet, not likely to get one for a long time can apply to superior court to stay the proceedings on ground of unreasonable delay. (1) Held that judge conducting preliminary inquiry into crim charge is not competent jdx = no power to grant stay proceedings on ground of unreasonable delay under 11b and no power to exclude evidence on ground that obtained in violation of Charter. (2) In case where D claims trial has unreasonably delayed b/c too much time elapsed even before prelim inquiry has been held, D can make separate application to superior court for stay the proceedings. (3) Elements - Tribunal is court of competent jdx if has power over the: 1) the parties to the dispute, 2) subject matter of the dispute, 3) the Charter remedy that is sought. (a) Weber v. Ontario Hydro: labor arbitrator was court of competent jdx and correct forum for plaintiffs Charter claim b/c statute conferred on arbitrator exclusive power to adjudicate all differences btn employer and employee arising out of collective agreement. (b) Mooring v. Canada: National parole board not competent jdx b/c did not have power to grant remedy sought (exclude evidence of gun b/c obtained in breach of charter, board revoked parole who was former prisoner). (c) Held that inferior court has power of competent jdx to grant charter remedy only if it has the power independently of the charter to grant the remedy. (crim court asked to award damages at end once established cops actions infringed charter; separate civil action is appropriate forum to dispose this issue). (d) R. v. 974649: issue whether prov offenses court could order costs against under crown under 24(1) for breach of charter. Held that remedial power may be implied or express. Although enabling legislation withheld general power to award costs, Held that function and structure of prov offenses court was suitable for award of costs for charter breaches, and for that reason the legislation should be interpreted as conferring by implication the power to award costs for charter breaches. Therefore, the prov offenses court was a court of competent jdx w/ power to make award of damages against crown. g) Range of remedies: there is no limit of remedies that may be ordered under s. 24(1). Include: defensive remedies: where court nullifies or stops some law or act by dismissing charge, staying a proceeding, quashing search warrant or conviction; enjoining an act, declaring law invalid. Affirmative remedies: ordering province to provide state funded counsel for indigent litigant, ordering return of goods improperly seized, mandatory injunction requiring positive action. (1) Damages are sometimes appropriate and just. Object is to make complainant whole, vindicate rights, deter breaches. (a) Arrest of soldier by military police = $10,000 under 24(1). Just and moral damages for breach. Despite any harm. (b) However, 24(1) does not authorize damages for harm done merely by enacting/applying law that is subsequently held unconstitutional. Nor does it authorize damages for harm done by govt officials who act in good faith under claim of right subsequently held to be unconstitutional. (c) Sometimes appropriate and just for breaches that cause inconvenience and delay to litigant: Crowns delay in making disclosure in pre trial to crim defendant. Held that costs awards will not come in every case of delay, but restricted to circumstances marked with unacceptable departure from reasonable standards expected by prosecution. (2) Considerations for courts discretion: 1) redress of the wrong suffered by applicant, 2) the encouragement of future compliance w/ the constitution, 3) the avoidance of unnecessary interference with the exercise of governmental powers 4) the ability of the court to administer the remedy awarded. h) Supervision of court orders: Doucet-Boudrea v. Nova Scotia: yes, judge could retain jdx to supervise compliance w/ remedial order set out in 24(1). Enforced minority rights by ordering building of french language schools, gave dates, required hearings and affidavits to shcow progress of buildings. By the time of judicial review, appeal moot, buildings done, hearings completed. (1) Abdelrazik v. Canada: judicial supervision order mad by fed ct. Court ordered emergency passport be issued to enable applicant to return to Canada and be brought before the Court for purpose of satisfying the Court that he had in fact returned. i) Appeals: sect 24(1) does not authorize an appeal from the decision of court of competent jdx. Existence of appeal will depend on rules of court to which s 24(1) application was made. (where no existing right of appeal eg: criminal proceedings, there will be no appeal from Charter ruling by court of competent jdx). (1) Knox Contracting v. Canada: no appeal from refusal of judge to quash a search warrant issued under Income Tax Act b/c Act had no right of appeal. (2) Kourtessis v. Minister of National Revenue 3. Administrative tribunals: a) With power to decide questions of law: tribunals can decide charter issues, when decide constitutional questions. Douglas College, Cuddy Chicks. (1) Limitations: (a) Decision will be subject to judicial review by superior court. Standard of review is correctness.


(b) Tribunal has no power to make a declaration of invalidity. (decision that law is unconstitutional means that law is inapplicable in particular case. Not a binding precedent). (2) Nearly all have implied power to decide all questions of law that are relevant to reaching decisions that are called for by their mandate. Some cannot b/c lack of expertise of b/c volume of cases they have to decide. (3) Nova Scotia v. Martin: (workers comp faced w/ claim that benefits provided by comp plan for chronic pain were violating s. 15) held tribunal had power to determine questions of law whether the power was express or implied, was presumed to have the power to determine the constitutional validity of any potentially applicable law. Presumption rebutted by showing legislation empowering tribunal clearly intended to exclude charter issues from tribunals authority over questions of law - nothing here in this case. (4) Paul v. British Columbia: cut down trees on crown land, asserted aboriginal rights; whether law was breach of aboriginal right under s. 35? Forest Appeals Commission decided it had power to deal w/ this, P applied for judicial review that Commission could not determine questions relating to aboriginal rights. Held that commission had power under empowering statute to decide questions of law. Nothing in statute indicating intent to withdraw aboriginal rights. Court found that commission was not granted power to alter/extinguish rights, but to determining if or if they did not exist. Decision would be binding on parties but not precedents on other courts/tribunals, b/c subject to judicial review on standard of correctness. (5) Tranchemontagne v. Ontario: whether Ont Social benefits tribunal had power to decide that provision in its empowering statute was inoperative for conflict with the Ontario Code. Provision denied disability benefit to person whose incapacity had to do with addition of alcohol/drugs. Statute authorized it to decide questions of law but denied power to determine constitutional validity of statute/regulation. Held, while tribunal precluded from invalidating a statutory provision i twas not precluded from refusing to apply a statutory provision on the ground of conflict with the Code. Tribunal was empowered to apply the whole law and that included the Code and its primacy clause. b) Without power to decide questions of law: admin tribunals that lack power to decide questions of law also lack power to refuse to apply laws on ground of unconstitutionality. If can adjudicate, usually means implicit power to determine all questions of law or fact that are needed to reach decision -sec 52(1) requires tribunal to resolve any constitutional issues that affect the validity or applicability of any relevant law. c) Preliminary inquiry judge: R.v.Seaboyer: held judge doing preliminary inquiry of indictable offense that had no jdx under 52(1) to determine constitutionality of rape shield law which limited Ds right to cross examine victim. Can rule on admissibility of evidence, but not constitutionality of statute that prohibited admission of evidence. Charter challenge to rules of evidence had to wait until trial. This case is impliedly overruled. (Martin, Paul): preliminary inquiry judge has power to decide constitutional questions that affect validity of the charge or the admissibility of the evidence tendered in support of the charge. 4. Scrutiny by Minister of Justice: Charter has no such provision that gives MOJ scrutiny. This is in Bill of Rights. 5. Legislative enforcement: Fed and Prov govt acting w/n their own legislative jdx are free to make whatever provision they choose for better enforcement of Charter rights. a) fed govt can enact remedial laws to redress breach by province of the denominational school rights under 93. No similar remedial or enforcement power in fed is to be inferred from provisions of Charter, Enforcement of Charter is function of courts, by virtue of 52(1) or s. 24 6. Vriend v. Alberta: remedy under s. 52 of the Constitution Act, 1982 (sexual orientation case missing from HR Code) a) Test & Analysis: (1) First step in selecting a remedial course under s. 52 is to define the extent of the Charter inconsistency which must be struck down i) In the present case, that inconsistency is the exclusion of sexual orientation from the protected grounds of the IRPA (2) Determine which remedy is appropriate: 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. (a) When determining whether the remedy of reading in is appropriate, courts must have regard to the i) twin guiding principles, namely, ii) respect for the role of the legislature and respect for the purposes of the Charter. i) 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. ii) Reading sexual orientation into the IRPA as a further ground of prohibited discrimination can only enhance those purposes. The Charter, like the IRPA, is concerned with the promotion and protection of inherent dignity and


inalienable rights. Thus, expanding the list of prohibited grounds of discrimination in the IRPA allows this Court to act in a manner which, consistent with the purposes of the Charter, would augment the scope of the IRPAs protections (b) 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, budgetary implications, effects on the thrust of the legislation, and interference with legislative objectives. i) Remedial precision: court must be able to define with a sufficient degree of precision how the statute ought to be extended in order to comply with the Constitution. (1) There is remedial precision insofar as the insertion of the words sexual orientation into the prohibited grounds of discrimination listed in the preamble ii) Budgetary implications: such considerations are not sufficiently significant to warrant avoiding the reading in approach iii) Effects on the thrust of the legislation: All persons covered under the current scope of the IRPA would continue to benefit from the protection provided by the Act in the same manner as they had before the reading in of sexual orientation. As the inclusion of sexual orientation in the IRPA does not alter the legislation to any significant degree, it is reasonable to assume that the Legislature would have enacted it in any event. iv) Interference with legislative objectives : it is clear that reading sexual orientation into the IRPA would not interfere with the objective of the legislation. The exclusion of sexual orientation from the IRPA, can hardly be described as integral to the scheme of that Act. Nor can I accept that this choice was of such centrality to the aims of the legislature that it would prefer to sacrifice the entire IRPA rather than include sexual orientation as a prohibited ground of discrimination. It was the intention of the Alberta Legislature to defer to the courts on this issue. Indeed, I interpret this statement to be an express invitation for the courts to read sexual orientation into the IRPA in the event that its exclusion from the legislation is found to violate the provisions of the Charter. b) Reasoning: parliamentary safeguards remain: when a court reads in, this is not the end of the legislative process because the legislature can pass new legislation in response. Moreover, the legislators can always turn to s. 33 of the Charter, the override provision, which in my view is the ultimate parliamentary safeguard c) Conclusion: conclude that reading sexual orientation into the impugned provisions of the IRPA is the most appropriate way of remedying this underinclusive legislation