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CONSTITUTIONAL LAW SUMMARY Difference btwn Public and Const Law: Public law Relationship btwn state actors

and others Constitutional law: Body of laws that are supreme and entrenched Entrenched: Cannot be changed by a simple legislative majority can only b altered through an amending process hard to alter Functions: creates and constitutes organs of the state, sets limits on powers of the state Section 38: 7/50 rule min 2/3 of provinces and 50% of population GENERAL AMENDING FORMULA Conventions: Unwritten rules Constitution Act s.35 Not part of the Charter Relationship btwn Aboriginals and Govt is separate from Charter ss.1-34 of Constitution Act Charter Legitimacy of Judicial Review: Debate flows from 4 factors 1. Nature of Text Language is broad, vague, open-ended allows for interpretation Text is short, not detailed built to last/endure Serves as basic architecture (bones) Judiciary must put meat on bones give constitution a large and liberal interpretation In the abstract things seem clear, in application it is more difficult 2. Nature of Issues arising in constitutional law Usually issues are close to heart of Canadians (significant, momentus) Constitution is supposed to be about who we are (embodiment of ideals, aspirations) Results have large ramifications for all Canadians 3. Nature of Constitutional Law vs. other areas of law Judiciaries rulings are binding and we are stuck with them unless we amend the constitution The legislature cannot change the law on its own 4. Nature of Judiciary Unelected, unaccountable, appointed for life Not a good representation of Canadian public as a whole The Override only applies to s.2 and ss.7-15 of Charter Charter is so entrenched that the override is hard to use

6 Modes of Constitutional Interpretation: All operate simultaneously 1. Historical Intentions of framers We have a better record of debates of 1982 than 1867

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Does not play too large a part Living Tree notion (Persons) dominates Principle of dynamic interpretation Meanings of words change over time Textual Always start with the text Usually doesnt take us too far Doctrinal Based on Precedent Popular now, not in early days of Charter though Prudential Cost/Benefit Example: Oakes Test proportionality part Ethnical From fundamental values/norms Huge in US POGG, equality, diversity, moderation, accommodation of difference Structural Look at larger picture bring in larger principles of constitution Implicitly articulated norms Sometimes new obligations are created Judges are to interpret law, NOT make it If judiciary enforces obligations on govt not from text going beyond democratie legitimacy

Standing, Notice and Interveners Anyone having the law applied to them can raise a constitutional argument Govt can Refer questions to the SCC (Reference Use) Independent legal actions can be brought must be raised by a person with significant stake in issue o Limited standing in this case o Must show significant stake and no other way for this to get to crts o A person without direct interest in issue must be given Public Interest Standing o If notice requirements (?) not met, issue cannot be decided by the crt Interveners

Amending Formula
Power over amendment is ultimate power over constitution FINAL AUTHORITY Capacity to change law is in power to amend

Pre-1982
Amendment through act of British Parliament (stipulated in BNA Act) Act of British Parliament gave it imperial status (became constitutional, not merely legislation) Imperial statutes prevailed over Canadian statutes Colonial Laws Validity Act imperial statute prevails when leg is inconsistent w/ imperial law

Statute of Westminister - 1931 Repealed Doctrine of Repugnancy Gave colonies power to make own laws and British would not pass laws dealing with colony without consent CLVA remained in force regarding const text b/c we couldnt agree on an amending formula Issue: Amount of consent needed from Fed and Prov govts There were conventional requirements but they were not legally binding

Constitution Act, 1982


1. Canada Act created amending formula Finished what Statute of Westminster tried to do Five amending rules found in Part V of Constitution Act General Amending Formula s.38(1) Requires consent of Fed govt (both houses of parliament), min 2/3 of provs having min 50% of pop Applies to most const amendments Residual Formula if does not fall in any of 4 others, amendment falls here Only procedure subject to time limits amendment cannot be proclaimed until 1 year after the initiation of amendment process unless every prov has indicated assent or dissent (s.39(1)) Amendment dies if has not received necessary support within 3 years (s.39(2)) A province can opt out (s.38(3)) when it would reduce the prov powers, propriety rights or other rights and privileges would not be an amendment with respect to that province If amendment would transfer leg powers from provs in relation to education or cultural matters, prov opting out can get reasonable compensation (s.40) - need compensation b/c otherwise too expensive for prov would have to maintain own system and pay taxes to fund federal system Focus on edu and culture comes from rel btwn French and English Cannot opt out of s.42 amendments Quebecs insistence on veto right led to compromise if every prov had veto then formula would need unanimity too rigid, impossible to change constitution 2. Unanimity Procedure s.41 Need consent of Fed and all Prov govts

Applies to 5 matters: i) Office of the queen and her representatives ii) Minimum number of seats that provs have in House of Commons iii) Use of French and English languages iv) The composition of the SCC (strange b/c SCC is not entrenched, not even in const) 1. Changes to the amending procedures themselves 3. Bilateral Procedure s.43 (some but not all provinces) Deals with provisions of constitution only affecting some provinces Only need consent of affected provs and Fed govt 10 have been passed o 1 pursuant to s.38 o 7 pursuant to s.43 easier to use s.43 but must more limited in scope Could be used to afford a prov with special treatment o Clash btwn doctrine of equality btwn provs and desire to be treated differently 4. Federal Unilateral Procedure s.44 In this case, ordinary legislation can change the const Only with respect to parts of const that deals with fed govt (i.e. composition of fed leg body that does not affect powers of Fed govt or method of selection that is protected in other parts of amending formulae) Ex. When Nunavut became a territory, there was a seat given to them 5. Provincial Unilateral Procedure s.45 Permits provs to amend its const as long as it does not affect matters governed by other parts of amending formulae Ordinary leg can change const Note on Evolving Conceptions of Democracy: Power of amendment was given to the legislature (executive), not the people the Charter was a significant augmentation in individual rights Quebec Secession Reference Constitution is silent about removal of a province from the country Case is important for what it says about constitution as a whole Foundational principles were used to fashion rules to bind govt o Controversial departure of SCC o Provincial Judges Reference and Quebec Secession Reference impose new free-standing obligations on govt

5 Foundational Principles 1. Judicial Independence 2. Democracy 3. Federalism 4. Constitution and the Rule of Law 5. Minority Rights These are not written into the const, they have been used to create new, binding obligations Creation of the Duty to Negotiate SCC Said: Issue does not only affect Quebec, Quebecers must realizes hat Cannot break up a country without a const amendment Referendum is meaningless but cannot be ignored - Lalonde 2001 OntCA Montfort - Francophone teaching hospital - re: closing the hospital. - It was not a violation... but it was successfully argued that the closing down of that hospital was a violation of the unwritten principles of the constitution that protected minority rights.

The Regional Veto Act (page 456) After 1995 referendum, the fed govt enacted the Constitutional Amendment Act, 1996 Just legislation, not part of constitution Act says that provinces already have a veto under s.41 and s.43 and can opt out through s.38(3) Provides a regional veto in the form of a govt promise not to propose any const amendment without agreement of the 5 regions (Ont, QC, BC, 2 or more Prairies, 2 or more Atlantics) Changes 7-50 to 7-92 b/c not possible to be in agreement given current pop distribution otherwise Although just regular legislation, wont be easy to repeal Applies to: o Amendments that would increase prov powers (transfer of fed powers to provs) o Charter changes (i.e. to repeal s.33 would be hard to do this b/c QC probably likes the power)

Canadian Federalism (pages 77-87)


1791: Creation of legislative assemblies (Bicameral: Composed of or based on two legislative chambers or branches: elected house and appointed counsel who were not accountable to elected house) 1840: Union of Upper and Lower Canada (legislative union) - Achievement of responsible government - Colonies so imperial power still had control - Power of disallowance - Chronic conflict btwn Upper and Lower Canada 1865: Decided on federal union adopted by Upper Canada, Lower Canada, NS, NB - Nflt and PEI opted out of federation (concerned about being a minority in larger entity)

- NB tried to get out afterwards - All concerned about protecting their interests (did not think federation would) - Forces in favor of union were defence (fear of US) and economic growth - Fear of US needed larger entity for protection - Merchants saw federation as an opportunity 1867: Compromise btwn unitary state (UK) and federalism (division into 2 or more levels of government, constitutionally connected, each level coordinates but is autonomous, do not overrule one another, both have on spheres) - Quasi-federal - Provinces are not coordinate - Provinces are not fully autonomous (Federal govt is supreme) - Fed govt has power of disallowance and reservation (hierarchical relationship and no limits on power of disallowance and reservation) powers have not been used since 1940s, 60s respectively considered counter to democracy and federalism constitutional convention against using them - Federal principles entrenched in 1867 Constitution - Jurisdiction (division of powers can only be changed through 7-50) - When issue of where power lies btwn s.91 or 92, must interpret language of sections Crts job - In reality, huge areas of overlap
Morgentaler (1989)

- SCC strikes down s.251 of Criminal Code - Morgentaler takes advantage of this and opens freestanding abortion clinic - Medical Services Act purpose of Act is to prohibit privatization of certain medical services - Regulates hospitals, healthcare, has offence provision - Looks like criminal law - It contains issues that could fall under s.91 and 92 - Crts look to pith & substance of legislation to determine where it falls - Purpose of statute was said the be a sham - Actual purpose was to prevent Morgentaler from opening clinic (trying to reinstate s.251 of Code) - Sopinka J claimed was not relying on colourability doctrine (true meaning is different from formal trappings) - Used to be Criminal Code section under federal jurisdiction - Privatization concerns did not exist before crt did not think it was a primary concern in enacting the statute - Lack of apparent connection btwn privatization issue and abortion issue - Only look to Charter issues after determining if statute is intra vires (within power of enacting body) if found ultra vires then legislation is already invalid - Under Medical Services Act only regulated 9 services and no evidence that those were riskier than other procedures not covered in Act - Pith & Substance: punishment of abortion on moral grounds (b/c of prohibition & consequences) Criminal Law! ( had to be enacted by federal govt, not provincial)

Pith and Substance Doctrine:


Acknowledges that legislations deals with lots of subject matters that will traverse s.91 and 92

Intersections Leg will be classified based on its dominant characteristic Sources: o Legislative history (what did leg seek to change, mischief attempting to deal with) o Policy papers o Purpose of statute natural and probably consequences of statute o Text o Effects: how does it change the legal rights and obligations of people it affects? Can enact laws that have incidental effects on other level of govt

Necessarily Incidental Doctrine


Allows leg to include provision that seem ultra vires as long as related closely enough to valid central scheme Incidental aspects are irrelevant to validity
General Motors Inc. v. City National Leasing (1989):

Competition Act regulates anti-competitive behavior Public mechanism of enforcement can punish people violating the Act GM claims whole Act is invalid butt if not, then s.31 of Act is ultra vires If provision considered problematic, remedy is to server Doctrine of Severance: If only part of legislation is invalid and rest of legislation is still intelligible (or if crt is convinced that leg would have still be enacted if remainder was all that would have been enacted in first place) can strike only provision - Crt Held Act was VALID, infringement was necessarily incidental - Important precedent for s.91(2) trade and commerce - Key features of the test for the division of powers: With regards to particular provision: 1. what is the pith and substance? Is it within jurisdiction? 2. If in isolation it is considered within other govts jurisdiction consider necessarily incidental doctrine 3. How much of an intrusion is it and how closely related to valid regulation is it? (is it a necessary intrusion?)

Double Aspect Doctrine


Multiple Access Ltd. v. McCutcheon (1982):

- Exclusivity of ss.91, 92 does not mean other level of govt cannot encroach on others sphere - Activities often overlap and intersect - Exclusivity means exclusive ability to enact laws in pith & substance in relation to subject matter covered by that level of govt - Some subject matters have dual aspects to them, some fall under each level of govt - Provinces have power of regulation over incorporation of companies with provincial objects (92(11)) - Focuses on where transactions are being concluded (locally or interprovincially) - The court decides that both statutes are valid. - The federal and provincial interests are of roughly equal importance.

Interjurisdictional Immunity Doctrine


Commission de la Sante et de la Securite du Travail v. Bell Canada (Bell #2), [1988]

- A woman who wants to take advantage of the better rights in the Quebec legislation. - Stronger protection from being exposed to unsafe workplace and safety issues. - She was pregnant. - Bell argues that they do not want to have to comply with the provincial statute because they are federally regulated. - They are trying to argue that only the federal law applies. - Bell # 1: minimum wage law passed by QC - no federal minimum wage law at the time - Bell tried to argue they did not have to comply with provincial minimum wage law - The courts said that employments relations is a vital aspect - Provincial laws, even if they are valid, cannot apply to matters at the heart of federal jurisdiction - federally regulated undertakings. - Immunity given to matters at the heart of the federal powers - The management is a vital part of federal jurisdiction, therefore only the feds can pass a law in such a matter and provincial laws cannot even enter that zone. - Such provincial laws are restricted in their application - they are read down. They are not invalid. - Result: II doctrine invoked, statute was read down - Beetz: Justified use of II Doctrine - Criticisms of II: Not a particularly compelling doctrine for 2 reasons 1. Runs against normal approach of Pith & Substance Doctrine - P & S allows of increasing amount of overlap and interplay 2. Doctrine is unnecessary b/c fed govt has paramountcy doctrine to protect itself from prov govt if it doesnt like what they are doing - Justified by: 1. Constitution says powers are exclusive 2. II Doctrine should be reciprocal but it doesnt operate that way - Beetz doesnt like concurrency, overlapping jurisdiction b/c when there is overlap, provs are sub-ordinate and he is a provincialist he wants as little concurrency as possible (does not like double aspect doctrine) - Dickson liked concurrency and double aspect doctrine not II doctrine - Interjurisdictional Immunity Doctrine - sterilization test that applies to federally incorporated companies and the Vital Parts Test that applies to the undertakings of federally incorporated companies. Vital Parts Test: in the case of federally regulated undertakings, provincial laws that apply directly to most undertakings, will be read down so as not to touch upon vital or essential parts of their management federally regulated undertakings enjoy a vital part immunity from prov laws that apply directly 3 kinds of constitutional arguments for challenging provincial statutes: 1. Validity - Validity of the statute - the legislation has to be intra vires. Consider the Pith and Substance Doctrine or dominant characteristic of the legislation was beyond the jurisdiction of the level of government. If it is found to be ultra vires, then it is

retroactive, it is a clean slate, a nullity from the beginning. - Validity of the specific provision - Look to the specific provision of the statute and ask whether in isolation that provision is ultra vires. - In pith and substance within the statute. - Consider whether it is Necessarily Incidental. - Is the problematic provision closely tied or necessarily incidental to the entire statute which is found to be valid? If it is closely tied to the broader valid scheme, then it will be considered valid. - If it is found to be invalid, then it can be severed. - If it cannot be severed without destroying the remainder of the statute, then the entire statute will be struck down. 2. Applicability - Interjurisdictional Immunity Doctrine - a question of whether the statute can apply. Does the statute have to be read down or restricted? - Bell Canada No. 1 and No. 2 (No. 2 is more important). - To prevent provincial govt from intruding into heart of fed govts jurisdiction. - Read down and restricted in its application 3. Operability - Relies on the Paramountcy Doctrine - fedl govt is paramount where there are two valid statutes applying to the same facts where there is an inconsistency. - Fed law is supreme over prov law Effect: prov law rendered inoperative (suspended so long as conflict exists, if fed statute is repealed or amended and no longer conflict then prov statute becomes operative again) 3 kinds of constitutional arguments for challenging a federal statute: 1. Validity - this applies in the same way as above. - Pith and substance - statute as a whole and provisions of the statute. 2. Applicability - this is not applicable in the same way based on precedent. - Interjurisdictional Immunity Doctrine favors feds 3. Operability - this only works with respect to the federal government (exception for Old Age Pensions) Used to fill gaps in the division of powers Prov power to incorporate companies on prov basis Fed incorporation power ascribed by POGG power (relates to internal architecture of corp cannot regulate their activities depends on kind of corp) Could provinces assert control over corps by making them get prov licences, etc... Provs cannot pass leg that impairs status and capacity of fed incorporated companies Sterilization test making it impossible for companies to operate company must operate under any provincial statutes except those that sterilize the company II Doctrine extended to Vital Parts Test prov laws cannot affect parts of companies undertakings
Irwin Toy

Dealt with Quebec leg that prevented advertising to children b/c they are vulnerable Validity argument failed II doctrine: advertising is part of broadcasting (fed undertaking) - The Vital Parts Test is not going to apply where there is only an indirect effect on the federal

undertaking. - If there is only an indirect impact, the immunity is narrower - it must satisfy the Sterilization Test. - Response to criticisms of the Interjurisdictional Immunity Doctrine. - Not comfortable restricting the Quebec statute. Hence there is now a way to get around the Interjurisdictional Immunity Doctrine - Quebec merely has to frame their statutes in a way that the effect is merely indirect - this would force the use of the Sterilization test. Sterilization Test: Prov laws that have an indirect impact on federal undertakings, on the other hand, will only be read down if they have the much more serious effect of impairing, paralyzing or sterilizing the viability of the undertaking.

Paramountcy Doctrine
Use after using P & S and II Doctrines
Multiple Access Case - insider trading case.

Both statutes are valid, applicable Double Aspect matter Virtually identical statutes on insider trading Issue: Is there a conflict? Held: Duplication is not conflict, it is harmony Dickson suggests different test for Paramountcy: Express Conflict Test/Impossibility of Dual Compliance Paramountcy is only invoked if there is an impossibility of dual compliance (to abide by both statutes) o Argument against: citizen is held to highest standard o Statute with lower std is being trumped by one with higher std o In a way allows fed jurisdiction to be trumped by prov In favor of using Paramountcy o Inconvenient not to b/c then we have to deal with 2 statutes o Confusion as to who is the enforcer o May be duplicate enforcement mechanism inefficient! o Blurs lines of democratic accountability Dickson says that value of provincial autonomy trumps arguments of efficiency
BMO v. Hall

Bank Act want to implement national security interest to make it easy to seize property Rationale: making banks more comfortable with providing credit by providing mechanism for enforcement Prov govt wanted to make it harder to seize farmers property Hall defaults on loan BMO seizes property without following Sask. law Both fed and prov statutes are valid Held: no impossibility of dual compliance following prov procedures doesnt mean cant follow fed

La Forest (Dissent) said incompatibility of purpose: Feds wanted uniformity in code Provs wanted to make it harder for bank to seize property which subverts fed purpose incompatibility of purpose test Two Approaches: 1. Multiple Access Leading Prcedent 2. BMO incompatibility of purpose Constitution is a living Tree (Persons case) Constitution should not be frozen in time Constitution is dynamic, it can change Meant to endure over generations need large and liberal interpretation Principle of Dynamic Interpretation leg couldnt have though of everything when const was created Large and Liberal Interpretation cannot be used with division of powers b/c 2 are usually mutually exclusive large and liberal interpretation will give prob powers a narrow interpretation and feds lots Mutual Modification: read fed and prov powers together and modify them in light of both of them allow them to work together, read in qualifiers Multiple Access Test: When provincial law undercuts purpose of federal law Federal law used when there are strong reasons to have national, single, unified regime ged govt has capacity to enact uniform and national laws but it doesnt have to - Example: fisheries - not such a big deal for land locked provinces, and yet highly important for provinces such as Newfoundland.

POGG
POGG embraces areas not in enumerated powers STEP 1: Consider whether power is included under one of enumerated heads of power look to dominant characteristic STEP 2: If it doesnt fit look to POGG POGG describes all federal power enumerated powers are illustrations of powers that fall under POGG All powers not given to provs

3 Branches of POGG
1. GAP
Role almost exhausted Least significant branch Purpose: Fill in gaps where subject matter doesnt fit into s..91, 92 Multiple Access - there was no head of power for dealing with incorporated companies on a national basis.

2. Emergency
In times of emergency (i.e. war), govt must be able to work quickly and comprehensively Div of powers is suspended and feds can enact laws on any matter Temporary power laws are only varied temporarily Crts show great deference to fed govts in times like this o Leg can only be challenged if claimant can show through very clear evidence that Parliament lacked basis to ground their claim and that it was an emergency very high threshold Prov powers suspended insofar that they are subject to overlapping fed leg If conflict, fed prevails b/c of paramountcy Prov powers are same (not diminished), only feds change (extended)

3. National Concern
Feds can uphold leg that is temporary or permanent History: first considered in 1880's in Russell v. the Queen - the issue was the validity of the Canada Temperance Act the Privy Council decided that this didnt fall within any specific power in section 92 and therefore had to go under the general power of the federal government. 15 years later, the Privy Council had the opportunity to look at a similar act local prohibition of liquor trade and consumption - it upheld this precedent - provincial - what do they do with the precedent of Russell where they allowed the power to the feds. There was a dicta suggesting that there was such a doctrine called the national concern/dimension of POGG. It was then essentially ignored for 50 years (until after WWII). There was considered to be no such this as a national concern branch of POGG. POGG was considered to be only an emergency branch and a gap branch. So is the consumption of alcohol an emergency? You would have to explain Russell as being an emergency of drunkenness if there is to be no national concern branch.

If a matter goes beyond local concern or interest and concerns whole nation, must fall under fed leg 1936 SCC upheld fed regulation of aeronautics (air traffic) Crt weary of power here b/c of potential scope and breadth Concerned would not be able to control it No idea how to cap it until Beetz dissent in Monroe

Monroe: Anti-Inflation Reference

Issue: Was the Anti-Inflation Act controversial? Could it be upheld under POGG? Not under enumerated areas b/c so broad o Focused on wage increases and trying to limit them in public sectors o Feds to not have power to cap prov regulated business possible intrusion of prov powers Can only enact this if can squeeze it into POGG o Doesnt fit Gap Branch Can it be upheld under Emergency Branch? Can it be upheld as a matter of the National Concern branch? 3 decisions: o Laskin (for 4 members) Emergency? Yes National Concern? Undecided tone leads to yes but not necessary to decide on this o Ritchie (for 3 members) Emergency? Yes National Concern? No o Beetz (for 2 members) His judgment became the law Emergency? No National Concern? No Held: 7:2 can be upheld under Emergency Branch

Act was too broad and diffuse to be upheld under National Concern Branch Beetz: On National Concern Branch Requirement 1: Subject matter must be small, discrete, single and defined, cannot be large, broad and diffuse Focuses on concern for maintaining balance btwn fed and prov powers Requirement 2: Subject matter has to have national dimensions Environmental and inflation matters are too broad to be allocated to fed govt through national concern branch POGG not used too often b/c when a new matter arises, it is ascribed in accordance with existing heads of power by analogy
Crown Zellerbach

Challenge to Ocean Dumping Control Act Issue: Does fed govt have jurisdiction to pass leg prohibiting dumping in salt water w/out a permit? La Forest and Le Dain talk about ways that feds can address concerns about environmental degradation Case concerns dumping in prov waters Validity of statute determined by reference to its P & S Boundaries of fed and prov waters: prov is to low tide mark plus bays and actuaries - feds have territorial sea Gap Branch: Where constitution is silent, if the prov territory is defined, and the feds have jurisdiction over the territorial sea, then it would fall under a federal power. Not plausible characterization of P & S to claim it falls with respect to navigation Also doesnt fall under the fishery power. La Forest, is not convinced that P & S is about ocean protection Real impact is on prov regulated industries in prov regulated waters Ruling: 4-3 Le Dain for Majority: 4 major conclusions 1. National Concern Doctrine is completely distinction from National Emergency (which provides const basis for what is necessarily leg of a temporary nature) 2. National Concern Doctrine applies to both new matters or matters not new but have become of national concern that were provincial 3. To qualify as matter of National Concern, must have a singleness distinctiveness and indivisibility that distinguishes it from matters of prov concern. 4. Provincial inability test: In determining whether a matter fulfills the requirement of singleness, distinctiveness and indivisibility that clearly distinguishes it from a matter of prov concern, consider 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 - It is not enough to say that the prov is doing a poor job (we allocated matters to provs if it concerns them) They have to do a lousy job which has an impact on extra-provincial matters, it is the extra-provincial consequences that come from the prov failure to deal with them adequately that will pull it into the federal realm national concern branch is directed at the risks Big Issue: What is the P & S of the Act? Does the subject matter meet the test for determining the scope of the national concern branch of POGG? Le Dain: o Relies on scientific evidence

o Evidence establishes that pollution in salt water has its own characteristics and is distinct from pollution of fresh water he is concerned about marine pollution treated as distinct on international level o Looks at test from Anti-Inflation Reference to qualify under National Concern Branch must have ascertainable and reasonable limits insofar as its impact on prov jurisdiction is concerned there is a need for national and uniform law in order to properly regulate it La Forest (Dissent) o Does not meet singleness, distinctiveness requirement o Cannot be easily distinguished from other environmental matters o Interconnectedness with prov matters makes him say that feds are powerless under POGG o Feds have lost of leg power and can regulate it in many ways through existing heads of power Consequences: o Provs cannot pass leg that are in P & S related to marine pollution even if restricted to territory of the prov if has incidental effects it will be ok o Double Aspect Matter: in case of conflict, prov law will be rendered inoperative b/c of Paramountcy Doctrine
Old Man Rivers Society Case: The environment itself and environmental degradation is not a separate head of power, instead it should be seen as an overlaid on all heads of power. Under a head of power, that power is over environmental issues coupled - Why not upheld under the criminal law power? - Prohibition coupled with a sanction/penalty. The prohibition was also seeking to punish a particular activity on moral grounds (Morgentaler). - There has to be a prohibition , penalty and a public purpose (suppression of social evils). - There is a prohibition coupled with a penalty, but does the Ocean Dumping Control Act have the criminal law purpose?

Note: The courts do not want to use POGG national dimensions - they tend to first turn to the existing heads of power and so on.
Old Man Rivers Society Case:

Environment is not a distinct head of power Environment is not under National Concern Branch of POGG POGG only triggered when there is an impact on federal area of jurisdiction Here there was an impact on Navigation (b/c was navigable water) There was a risk of flooding which would affect Aboriginal Lands Potential impact on fisheries La Forest thinks that II will only protect fed powers and not prov Nuclear Power meets POGG National Concern Test

Trade and Commerce: Economic


Fed Power in s.91(2) must consider prov power of Property and Civil Rights s.92(13)
Citizens Insurance Co. v. Parsons

Leading case for broad parameters Methodology and Conclusion are important Contract btwn P and CI

Ps store had a fire Contract was illegal and CI doesnt want to pay CI says Ont law is ultra vires w/ respect to Trade and Commerce b/c fails to observe div of powers CI challenging constitution so doesnt have to pay Held: Trade and Commerce is a general power, not applicable to specific Ks In P & S, leg was concerned with Property and Civil Rights Two Branches of Trade and Commerce 1. Extra-provincial trade international and inter-provincial 2. General Regulation of Trade (GRT) power throughout whole dominion Held: Must read s.91. 92 together to keep 2 sphere separate as much as possible Provs have jurisdiction over intra-provincial trade s.94 gives fed govt right to pass laws rendering the common law of provs uniform Held that must read Property and Civil Rights from s.92(13) broadly to include o Property, personal and real o Contracts o Torts o Employment Standards o Collective Bargaining o Building Codes, Fire Safety Codes o Rules and Estates (succession rules) o Occupation Health and Safety o Family Law, Custody, Access, Adoption, Social Assistance, etc... Must give necessarily incidental doctrine narrow role feds and provs must work together
Eastern Terminal Elevator (1925)

Regulating grain trade 80% exported Feds assert jurisdiction from first branch of Parsons says in relation to extra-provincial trade Impact on local transactions was incidental Feds and provs must cooperate risky
Classen (1950s case)

Feds invoked power said grain elevators are for general advantage of Canada regulated by Feds Classen says many transactions are local
Cal Oil:

Fed law drew line btwm Ontario and Quebec (North to South) Said could not sell imported oil west of the line Attempt to protect Alberta industry from cheap, imported oil Impact on local transactions was considered incidental to the scheme

Second branch of Parsons: General regulation of trade power (GRT power)


GM. v. City National Leasing

Challenge to civil action provision Competition act not restricted to extra-prov trade (prohibits anti-competitive behaviour) To be upheld, must be under GRT power Criteria to determine scope of GRT 1. Part of General Regulatory Scheme (more likely to be comprehensive) 2. Monitored by continual oversight of a regulatory agency 3. Oriented to trade as a whole rather than a particular industry 4. The provs must be incapable of enacting the leg themselves (i.e. fed undertakings, trade predominantly extra-provincial) 5. Must be national cannot leave out 1 or more provs (functional concern provs cannot do it) Risk: power is similar to challenge to National Concern Branch of POGG hard to confine Nothing else has been upheld pursuant to GRT Power (federal securities regulator might) Summary of Parsons: First branch: relates to extra-provincial trade (crossing borders) Second branch: GRT power - adds capacity to regulate both extra and intra-provincial trade so long at it is not regulating a specific trade, etc (see criteria).

Criminal Law Power: s. 91(27)


Challenge: very broad subject matter with no apparent limits Crts are confused about how to interpret it Broadest, most flexible federal power Concern: Has crt gone too far in allowing the power Trilogy of recent cases: MacDonald, Firearms Regulation, Hydro Quebec... S.92(15) Capacity to include penalty provisions (Prov laws can take form of criminal laws) o Must be grounded in P & S in relation to some other head of power ancillary provision to save prov laws w/ penalty provisions S.91(27) is independent and does not have to rely on another head of power Paramountcy doctrine - Over time, judges have been friendlier to moral regulation than over economic regulation. Case dealing with Competition Act: criminal law is only prohibitions coupled with penalties and that there is no transcendental notion of what is criminal Criminal is prohibition coupled with a penalty too broad and allows govt to enact any law

Margarine Reference - page 390:

- SCC (Rand) added a third element: There should be a criminal law purpose Public Purposes that can support a matter being in relation to criminal law: o Public Peace o Order o Security o Health o Morality Law had an economic purpose (to protect the dairy industry) There once was a public purpose that could ground the prohibition (public health concern - it use to be thought dangerous to health) Rand strikes down provision with the exception of importing (which can be upheld pursuant to fed power to regulate foreign trade) Economic interests deal with civil rights Can be argued that the offence is no longer valid criminal law - dangers have dissipated (no longer a sufficient danger) - knowledge and attitude. Example: marijuana. This didnt succeed - they held that it was valid on the criminal law power unanimously. Crt said there was a valid concern particularly with protecting the vulnerable. The majority cited a phrase from the Butler case - it is enough if the parliament has a reasonable apprehension of harm. In pith and substance, it has to be punishing a social evil, but there doesnt have to be a lot of evidence for it being a social evil. Crt will hold that a law is not, in P & S, valid in terms of criminal law power when: Form: prohibition and penalty Substance: purpose
RJR MacDonald v. Canada:

Tobacco Products Control Act. Valid because has a prohibition coupled w/ a penalty w/ purpose of protecting ppl from certain health risks. Controversial b/c targeted advertising of tobacco products had not been done before Not clear that advertising was sufficiently closely link to health risks Took atypical form by making exemptions for foreign media - looked as though those exemptions undercut the notion that it was criminal law Crt dealt with exemptions by saying it did not defeat the dominant characteristic of the legislation as a whole An exemption in an offence provision does not necessarily deprive a law of its status as being a criminal law. (Also in Morgentaler.) Crim laws should be self-executing i.e. we should be able to read the law and know how to avoid penalty
R. v. Hydro Quebec:

Environment itself is not head of power must be linked to another head of power The scope of the definition of toxic substances - Part 2 of CEPA - regulates everything from the creation, use and disposal of toxic waste Definition toxic substances imp b/c no issue if tied to matter falling w/in established head of power Definition not tied to fed area of jurisdiction must fall within POGG National Concern or Criminal Law Power National Concern Branch Problem:

o Must be discrete and directed toward something not too diffuse and sweeping Must meet discrete, indivisible test Breadth in this case is too broad Criminal Law power upheld 5:4 Crt wants certainty in crim law must have prohibitions and penalties to be crim law No prohibitions in statute Dissent emphasizes this imposes power to fed govt to compile a list of toxic substances, can only enact regulations with regards to those on list Saved by criminal law power Majority said protection of environment was valid concern Dissent did not disagree but was concerned with lack of prohibitions Case expanded scope w/ respect to formal and substantial elements of crim law power Case gives fed govt broad power as long as law is valid crim offence Crim law has few substantive limits

Firearms Reference

Argument was that Firearms act was not, in P & S, a crim law Act had broader scheme than pre-existing prohibitions in crim code Act was in P & S to put in place prohibitions coupled with penalties and registering and licensing scheme was to support the prohibitions It is not the crts job to question the wisdom or effectiveness of legislative scheme Limits On Criminal Law Power: Formal Requirements: prohibition coupled with penalty Dominant characteristic cannot be regulatory Substantive Requirement: Criminal Purpose Major and Sopinka say must be a major social evil Requirement is really less than that Reasonable Apprehension of Harm (Malmo-Levine) Limits On Provincial Ability to Enact Laws with Penalties: s.92(15) Prov laws can have penalties but this is not a power on its own Trend: uphold prov leg w/ subject matters that overlap w/ fed jurisdiction over crim law matters Counter-Examples of upholding Prov Laws: Morgentaler (P & S doctrine) and Westendorp Double Aspect Doctrine most subject matters are subject to concurrent fed and prov law Provinces can pass laws with penalty provisions as long as in P & S, it is grounded in another head of provincial power Has formal and substantive characteristics of crim law but is analogous to prov jurisdiction to regulate o i.e. Safe Streets Act panhandling prohibits soliciting Challenged with respect to freedom of expression and crim law power act was upheld McNeil provincial film and video review board has task of reviewing all films/videos to be distributed in Ont. no approval, no release o Civil liberties must be filtered through div of powers o Fed crim law puts limits on provs to be able to censor this way looks like admin regulatory scheme Traditionally, crim law power was prohibitions coupled with penalties but Westendorp and Morgentaler had stronger judgment with respect to div of powers o Municipal by-laws (creatures of the provinces, cannot extend beyond powers of prov) must be in P & S related to a s.92 power. o Stuck out like an intruded provision as if was implanted to deal w/ matter of street prostitution in a

distinct matter (for example, the penalty was higher) o Leg history was imp here Features: 1. The matter has long been dealt with by the criminal code 2. The way that the criminal law deals with it is inadequate in some way 3. Contained policy purposes that were in the criminal law (unhappy with leg debates) 4. The municipal by-law has some penalty - particularly severe 5. Provincial law has the features of criminal law. If all these factors are fulfilled, then the law will be considered ultra vires.

Aboriginal
Division of Powers is important for Abs deals with division of legislative authority When can provs pass laws that have impact on abs? When can Parliament? Extent to which self-govt in abs is emerging Related to charter but distinct from it Ab rights grow out of their history and from treaties (protect them from or compel state activity) S. 35 is similar to charter but not part of it Ab rights are in s.35 of Constitution Act, 1982 Certain provisions of Charter do not apply to s.35 i.e. Reasonable limits and Oakes test do not apply Sparrow case imports s.1-like limits into section 35 Royal Proclamation, 1763: What does it say? Why is it important? Embodies colonial practices that are part of the common law and now are in s.35 Relationships described in it are imp Used to help formulate idea that the fed govt has obligation to act in abs best interest when dealing with ab peoples and their lands (Trust-Like Relationship) Relationship with British Crown was a nation-to-nation relationship (btwn sovereign nations) RP is mixture of that relationship and a patronizing European tone o Nations living under Brit Crowns protection o Allies in military campaigns (rely on abs and need them but they are beneath us) o Relationship recognizes land rights and rights to be undisturbed in their lands unless they cede them o Indians have been exploited and tricked o Settlers cannot buy land from Indians land must be ceded to Crown through treaty then settlers buy from Crown o RP embodies relationships, does not create them o Texts are not imp to abs, they are misleading Treaty of Niagara Treaties: Treaty: formal embodiment of an understanding of relationship with Crown Treaties show why ab people value so highly their relationship w/ the Crown S.91(24) is only provision in BNA Act that mentions Indians

o The word Indians is still used this is quite embarrassing but it is a product on the misunderstanding of Christopher Columbus o Term Indian is used b/c of historical and textual context o Inuit, Mtis and Indians are distinct Some ab peoples have treaties and some do not Treaty rights are entrenched in 1982 act Non-treaty ab people still may have constitutionally protected rights Indian Act enacted when fed Indian policy was about assimilation There is a difference between status and non-status Indians

The Guerin Case:

Damages arising from breach of Crowns fiduciary duties Principles of case are used to understand the link btwn old documents, history to Constitution, 1982 Interpretation of s.35 Reserves come from treaties and fed statutes Lands Reserved for the Indians: reserves and lands not surrendered by abs This case is about BC land Ab title seen as burden on Crown title (Deglman Case) Ab people dont own the land in the way that non-ab people understand it

Sparrow Case:

SCCs first interpretation of s.35 Sets out parameters for interpretation Task of court interpret meaning of word aboriginal rights existing recognized and affirmed s.35(1) o Existing aboriginal and treaty rights are recognized and affirmed Words chosen by drafters to limit scope of ab rights Existing: o Not extinguished as of 1982 o To Extinguish: Exhibit a clear and plain intention to extinguish rights If govt does not explicitly say so, it must be the necessary implication of govts course of action Cannot extinguish post-1982 Cannot say that right has been extensively regulated does not qualify Once a right is not fully extinguished, it exists in its full vigor for the purpose of s. 35 aboriginal rights o Not all ab activities are going to be automatically immune from govt intervention o Crt divided unprotected activities from protected activities o Assumed that taking salmon fell within the scope of ab rights o Did not describe the extent of the rights o Found integral to distinctive culture to take salmon for food and cultural purposes Attempt to engage in redistribution of access to resource but trying not to create too much conflict recognized and affirmed o Includes s.1-like test into s. 35 o Need limits - constitutionally protected but not in an absolute way o TEST: Govt must be pursing a valid objective consistent with Crowns trust-like responsibilities

Priority must be given to ab interests over other people who have claim to resource Priority means: if conservation issues dictate that it is ok to fish, then abs get first right

The Charter of Rights and Freedoms


Relevant Sections:
s.2 s.7-14 s.15 Fundamental freedoms, including freedom of expression Range of legal rights, i.e. fundamental justice, unreasonable search and seizure Equality Rights Mix of Positive and Negative Obligations on Govt

Purposes of Various Sections


s.2 s.7 s.15 Truth, Democracy, Self-Realization Not much guidance on this section according to scholars Human Dignity

Application of The Charter


Section 2, 7-10, 12, 17 apply to everyone suggests including individuals, corporations o BUT s.2(a) (freedom of religion) and s.7 (life, liberty, sotp) are not the sort of rights that a corp can enjoy S.15 every individual (note this does not include a foetus) Only when corp has their rights violated under ss. 2(a), 7, 15 can they invoke a s.14 remedy S.7 includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law (Singh) Two ways to bring Charter claim: o Collateral issue in ongoing crim or civil proceedings (i.e. defence to crim charge or civil liab) o Independent action (seeking declaratory relief)

Standing:
3 types of claimants have standing: 1. Anyone whose rights have been directly affected (remedy under s.24(1) or s.52) 2. Anyone (corp or indiv) charged w/ unconstitutional offence (remedy under s.52) Big M, Morgentaler 3. Public Interest Standing TEST 1) Govt action must raise serious issue of invalidity 2) P must have genuine interest (not a mere busy-body) Thorson-McNeil-Borowski Trilogy 3) Must be no other reasonable and effective way to bring the issue (hard to establish)

Corporations
When corps are subject to law they want declared invalid but right is not one corps enjoy i.e. seek to argue infringement of someone elses rights o Big M says corps have been allowed in context of crim prosecutions, to make s.7 challenges to leg

under which they have been charged o General Rule: corps cannot claim infringement of own Charter rights have not been allowed ot bring independent civil action seeking declarations that law is invalid despite fact that they are subject to regulation under the law in issue and to possible criminal sanctions if they violate it o BUT in federalism cases the fact that the corps interests are directly affected is enuf for standing

How does a Charter claim work?


1) Must establish infringement a. Does the Charter apply? (s.1) Only applies to govt action (s.32) Is the Act ultra vires? Charter only applies to validly enacted leg (not leg that is inactive, inoperable, inapplicable) Is there an override provision in the law? (s.33) Applies to govt action or inaction (positive and negative obligations) diff from US b. Has there been a breach? (s.2-32) Does the challenged action interfere in purpose or effect w/ exercise of Charter right or freedom? (Big M) Onus is on P here 2) Burden of proof shifts to govt to justify infringement (reasonable limit, prescribed by law, demonstrably justified in a free and democratic society) a. Can it be upheld under s.1? 3) Are there any remedies available if it cannot be upheld under s.1? a. S.24 Individual Remedies b. S.52 General Remedy of invalidity applicable to any law declared invalid or of no force and effect at least to the extent of inconsistency fixing the law to bring it into constitutional compliance c. Judges have wide discretion in terms of remedies Can exclude evidence Award Damages (compensatory and punitive) Force change in laws administrative policies i.e. by mandatory injunction Structural Injunction: order set of positive actions to be undertaken by govt Has been used re. school language rights Reluctant to do this b/c judiciary doesnt have enforcement abilities

Aids to Interpretation:
1. Interpretative Provisions of Charter Certain provisions do not create new rights but affirm/highlight certain values to be taken into account when interpreting rights or assessing s.1 justification Provide guidance Ss.25-29: equality, ab treaty rights, etc... dont confer new rights but discuss how they should be interpreted 2. Parliamentary and Committee Debates Drafting history debatable how much weight this should have Crts do not want to take speeches and declarations into acct danger of this is that this can cause rights, freedoms, values to become frozen in time BC Motor Vehicle Reference Lamer: should be admissible but not determinative (give little

weight) b/c of multiplicity of actors and this could ruin the dynamic interpretation Multiplicity of Actors: hard to determine whose opinion should matter Dynamic Interpretation: dont want to freeze const over time For 1982 Constitution Act, there was a substantial history indicting what drafters intended particular provisions to mean (i.e. s.7 fundamental justice chosen to be a procedural thing, not a substantive guarantee) In Reality: crts do give great weight when it suits their purpose 3. Canadian Pre-Charter Jurisprudence Bill of Rights had diff const status than Charter (Federal Statute) decisions of limited relevance o Ordinary statute, applied to feds, not provs can be repealed (not entrenched) o Many rights and freedoms overlap with those in Charter Generally crts have put interpretations of Bill of Rights aside b/c wanted a clean slate to work from (Charter gave new commitment to supremacy) Bills role is attenuated could be relevant if govt enacted s.33 but did not override Bill 4. International Sources Many intl sources reviewed in drafting (American Bill of Rights) Persuasive, not binding Some intl norms are shared but all come from diff histories, cultures La Forest: be wary of drawing too ready a parallel btwn consts in diff countries which were drawn up under diff circs Charter conforms to spirit of contemp intl human rights movement and incorporates many policies of various intl documents pertaining to human rights o Can look to South Africa, Australia, Israel, Intl Human Rights norms, commitment to interpreting laws in accordance with conventions o Universal Declaration of Human Rights Resolution 217A (III), 1948 (UN) o Not legally bound to interpret Charter in relation to intl human rights norms not automatically part of domestic law

Principles of Interpretation:
The Purposive Approach:
Charter should be interpreted in light of interests it was meant to protect (Purposive) What is the purpose of the provision? (Crt looks at Charter, drafted in vague, open-ended terms, and asks what purpose is) Purposive Interpretation = Generous Interpretation What is the purpose and effect of the govt action Crts use a Generous, Large/Liberal Interpretation Approach Charter is Dynamic, Living Tree, built to last o Persons Case: Are women persons and could be appointed to Senate
Hunter v. Southam (1984) SCC: Purposive Approach

Const drafted with eye to future Function: to provide continuing framework for legitimate exercise of govt power Provisions cannot be easily repealed or amended must be capable of growth and development

over time to meet new social, political, historical realities


R. v. Big M

Lords Day Act was valid exercise of fed crim law power Act violated freedom of religion under s.2(a) of Charter Crts read freedom of religion to include freedom of religious practices and freedom to hold these beliefs Freedom of religion cannot be violated directly (i.e. not holding property in accordance w/ religious practices Walters) or indirectly (Edwards Books)

Determining Purpose of Charter Right or Freedom (Big M):


1. 2. 3. 4. Consider with reference to characte4r and larger objects of Charter Language used in text to describe right or freedom Historical Origins of concepts Meaning and Purposes of associated rights (generous rather than legalistic interpretation)

Purposive, generous/large/liberal, dynamic Generous Meant to be new affirmation in Canadian context Dynamic interpretations can change over time Goal: achieve balance Motor Vehicle Reference Lamer: Charter is matter of great controversy, text doesnt give much guidance, purposive approach helps interpretation Issues arise b/c judges are not elected

Who does the Charter Apply to?


Govt only! Positive and negative obligations Can be violated by govt action, inaction, failure to deliver positive obligations

When does the Charter Apply?


1. If action is GOVERNMENTAL by its very nature S.32 parliament and govt of Canada & leg and govt of each prov o Includes judiciary, leg and exec branches of govt (Cabinet, Ministers, Dept Officials, Police) Applies to govt inaction too ( Vriend) Judiciary: o Dolphin Delivery: crts not part of govt for purposes of s.32(1) This makes no sense has been ignored If did not apply to crts how enforce right to fair trial w/in reasonable time o R. v. Rahey: Unreasonable delays was a breach of s.11(b) judiciary subject to charter 19 adjoiurnments, 11 months to reach decision o BC Govt Employees Union v. BC: lawful picketers outside crts, judge wrote injunction telling them to leave SCC said motion violated s.2(b) but was saved by s.1 Charter applied b/c was not purely private dispute but crt was acting on its own and not at insistence of any private party Common Law:

o Charter applies to common law when relied upon in litigation involving govt party or proceedings initiated for public purpose o When CL rule relied upon by Crown in crim proceedings, Charter applies b/c state prosecution provides requisite element of govt action o Swain Lamer: if possible to reformulate CL so that does not conflict with pofj then do so o Hill: Charter rights do NOT exist in absence of state action otherwise every judicial decision would be subject to challenges distinguish btwm charter rights and charter values o Dolphin Delivery: Charter does not apply to CL if litigants are private parties Pepsi Case: secondary picketing lawful unless causing significant harm o Salituro: CL rule preventing accuseds spouse from testifying against him was contrary to dignity of witnesses who wished to testify had to change rule to reflect Charter values Override o Only covers s.2, 7-15 o Escape valve if judges get it wrong leg can fix it 2. Party is Under Control of Govt Control Test: Are the day-to-day operations of the entity under control of govt (not necc ultimate control but routine control) (McKinney) Govt Function Test: Is entity performing a trad govt function or one recognized as resp of govt? Statutory Authority and Public Interest Test: Whether entity is one that acts pursuant to stat authority specifically granted to it to enable it to further an objective that govt seeks to promote in the broader public interest Stoffman v. Vancouver GH: mandatory retirement policy o Majority of board appointed by govt but did not control it o Day-to-day operations were not governmental, provision of public service Douglas v. Douglas College: Challenge to Mandatory Retirement Provision o Govt had great deal of control over BC Colleges day-to-day operations o Board was appointed by govt o Govt issued directions, approved by-laws o Subject to Charter
McKinney v. University of Guelph (1990): Entities controlled by govt

Faculty members raised issue that unis mandatory retirement discriminated on basis of age (s.15) Uni was not govt actor Charter did NOT apply To open all private and public action to review would strangle operation of society and diminish area of freedom within which individuals can act Just b/c entity is creature of statute and has legal attributes of natural person does not make it subject to Charter Not enuf that incorporated and perform public service Nature of rel to prov govt was not enuf Govt had no legal power to control uni; legal autonomy of uni fully buttressed by trad position in society Wilson in dissent found satisfied all 3 tests from above 3. Party Implementing Specific Governmental Policy or Program TEST from Godbout Private actors are not bound by Charter unless implementing specific govt policy or program

(Eldridge) Govts should not be able to avoid Charter by delegating authority to others Private litigations can bring Charter challenge to statute even if govt actor not involved in litigation Dagenais v. CBC: challenge to CBC on grounds would prejudice jury selection o Although charter did not apply to CL, CL must be developed in accordance w/ Charter values o CL gave sufficient weight to freedom of expression and had to be reformulated in manner that reflects principles of Charter Adjudicators derive power from statute, may have stat power of compulsion bound (Slaight) HRCs have power of compulsion (Blencoe) Municipalities: subject to charter b/c exercising govt functions (i.e. election, tax, making laws) Law Societies: Charter applies o Same as municipalities b/c exercising govt bodies o Have reg and disciplinary powers legal powers of compulsion Dentists: Right to advertise upheld by Charter likely that professional reg agencies subject too when governing formulating rules of professions If analagous to municipalities in sense that regulated through prov regulation (wide-ranging powers to make rules and regulations i.e. levying fees, disciplinary powers)
Godbout v. Longeuil (1997): Entities exercising govt function

City of L required all permanent employees to reside in L G moved and was fired Policy of residence requirement violated policy L was essentially govt in nature Charter not restricted to only those formally part of govt Subject b/c of activities they perform Municipalities: o Councils democratically elected, accountable analogous to parliament o General Taxing Power same as parliament o Empowered to make laws, enforce, administer same as parliament o Derive existence and law-making power from provs

Eldridge v. BC (1997): Entities implementing govt programs

Deal ppl sought declaration that failure to provide public funding for sign language interpreters when they received medical attention violated s.15 Hospital was held to Charter b/c acting in governmental capacity Govt cannot evade charter by delegating implementation of policies, programs to private entities Public function does not necc make subject to charter (McKinney) Govt is resp for defining content and services to be delivered by Hospital Hospital acts as vehicle for leg Direct connection btwn govt policy and hospital conduct (unlike Stoffman)
Vriend v. Alberta (1998): Government Inaction

Omission of sexual orientation from Altas Individual Rights Protection Act (IRPA) V dismissed on grounds of sexual orientation and tried to file complaint

S.32 of Charter permitted consideration of s.15 violation when arises from leg omission Threshold Test: o Only requires that there is some matter within the authority of the leg which is the proper subject of a Charter analysis o Nothing in s.32 to indicate a positive act is necc o When underinclusive as result of omission s.32 applies
Hill v. Church of Scientology (1995): Reliance on Common Law in Private Litigation

Is common law defamation inconsistent w/ Charter guarantee to freedom of expression Private parties owe each other no const duties and cannot found cause of action on Charter right In context of litigation involving private parties Charter only applies to CL to extent inconsistent w/ Charter Not a situation where one has to establish violation and other has to defend Party alleging CL is inconsistent w/ Charter has onus of proving failure to comply and that balancing says CL should be modified 4. Questionable Whether Charter Would Apply Ab govts not clear o Powers from diff sources (i.e. inherent rights to self-govt, treaty, Indian Act) o Are bands analogous to municipalities and territories? o Where band authority shaped by Indian Act likely to be subject (same as municipalities) o If based on treaty powers depends on what treaty says (i.e. Nisga Treaty entrenched in s.35 subject) Nisgas agreed to exercise compliance with Charter in Treaty o Const relationship btwn territories and fed govt o Abs are creatures of statute yet autonomous in exercising conferred powers o Will not meet control test Public Schools Private Schools like universities exercise autonomy not subject Crown Corporations CBC: even though Crown Corp whose functions are public in nature, not subject b/c has programming independence and policy decisions are not subject to govt interference Involuntary detention by security guards, bouncers o Violation of right to counsel, right to freedom from arbitrary search and seizure not exercising govt acts or policies o State should not be able to delegate powers of arrest to anyone arg is that anyone w/ those powers is performing a govt function o Most crts say that Charter does not apply to detentions and searches
RWDSU v. Dolphin Delivery (1986): Debate about application of Charter to Private Action

Does Charter apply to litigation btwn private parties? Charter claim that injunction to stop secondary picketing infringed on freedom of expression Charter applies to common law, not private parties Fundamental Principle: judiciary should develop CL in manner consistent with values in const and Charter Pepsi Case followed CL must be in line with charter values

Remedies
Section 24:
1. Allows a crt to order remedies for violations of the Charter where it is just and appropriate Only applies to those whose rights have been violated Crt has discretion to determine remedy under s.24(2) Remedies Available: Structural Injunctions: Mostly in the US Cdn crts said they are willing to consider them where Charter imposes clear, positive obligations on govt Criticized for giving judges too broad powers 2. Damages Remedy infrequently used No developed jurisprudence Has been used in case of police misconduct and only where there was an egregious violation 3. Declaration Common s.24(1) remedy Declaration that claimants rights were violated by leg or action Results in kind of change that charter litigants are trying to establish

Section 52:
Supremacy Clause Outside of Charter but part of constitution Says any law that is inconsistent with the const (including the Charter) is of no force and effect to the extent of the inconsistency S.52(1) has range of remedies o Schacter: leading case setting out remedy principles Appropriate remedy under s.52 is one that best achieves balance btwn goals of respecting parliaments law-making resp and fulfilling the exercise of Charter rights and freedoms Remedies Available: 1. General Constitutional Remedy: Declaration of Invalidity Immediate or Delayed (Temp Suspension of Invalidity) o Should not be used indiscriminately o Allows state of affairs that violates charter to persist for a period of time despite violation o Criteria (Schacter): Potential Danger to Public Threat to Constitutional Order An underinclusive law where striking down would deprive persons of benefits without providing them to the individual whose rights have been violated o Ref Re Manitoba Language Rights: Mans failure to meet requirements for bilingual enactment and publications of its statutes was a violation of s.23 Most statutes enacted btwn 1890 and 1985 were invalid and of no force and effect Chaos if all laws suspended crts declared leg temporarily valid for min period of time

required to translate and re-enact laws o Dixon v. BC: BCs electoral boundary scheme was invalid b/c it invalidated the right to vote guaranteed under s.3 Declaration of invalidity would mean disappearance of electoral districts Crt declared leg valid for temp period of time to allow leg to enact an apportionment scheme that complied w/ Charter o Appropriate Length for Temp or Suspended Declaration of Invalidity: M v. H: 6 months Some as long as 18 months Man Ref several years o Remedy is being used more often now o Remedial equivalent of s.1 balancing legal regime btwn crts & leg Striking Down in Whole or Severing in Part o Remedy used in federalism cases o Involves partial invalidation of law o SCC said severance can be used to fulfill purposes of Charter while preserving those parts of the leg that do not violate the Charter 2. Reading In (exceptional remedy) o Crt can read in new language if necc to remedy constitutional defect o Developed from Schacter Case o Used in Vriend and Trudel (read in homosexuality as a missing provision) o Used as result of underinclusiveness o Vriend: (Iacobucci) you must look at remedial precision, budgetary implications, effects on the thrust of the leg and interference with leg objectives o Rarely used o Applies when: Other potential remedies are inadequate Words that need to be read in are known with sufficient precision Reading in will not hamper the objectives of the leg Will not lead to onerous fiscal responsibilities Budgetary implications grp being read in must be smaller than group already included Effects on leg scheme must be modest o Crt will usually suspend the reading in for a period of time depending on complexity 3. Reading Down o Also a remedy in federalism cases o Used when statute bears 2 interpretations one that would offend the charter and the other would not o Used to avoid declaring leg to be of no force and effect o Permits crts to save a law from invalidity that would be unconst if given broadest interp o Gives the law a narrower interpretation that would eliminate unconst applications o Not necc remedy for invalidity functions as technique of interp to avoid invalidity o Presumes leg intended to act within bounds of const o Stronger forms of reading down can also be used as a remedy for possible invalidity and can read limitations into leg o Hunter v. Southam Crt rejected fed request that procedures required by s.8 be read into leg (ref searches and seizure powers under Combines Investigation Act)

Crt said it was legs respt to enact leg that complies with charter Crts should not fill in details to leg to render it const o R. v. Sharpe Certain exemptions read into law to narrow its scope and cure potential overbreadth o Reading down is understood as interpretive principle o Can fix problem by reading leg narrowly in manner consistent with Charter and Const 4. Constitutional Exemption (controversial) o Law valid in most situations but in some cases it infringes in these circs claimant can get exemption o Some members of crt have expressed doubts about dealing w/ const of laws on case-by-case basis o Const exemptions have been granted by lower crts in crim proceedings o Controversial b/c element of uncertainty that judicial discretion would introduce by allows indicids to be exempt from app of law o Rodriguez: not accepted by crt if had been accepted then remedy would be to give her a const exemption rather than change the law o Medical Marijuana: lower crts have granted exemptions o Latimer: could have been done o Case-by-case basis o Law remains in force but inapplicable to those whose rights are infringed by its effects o Many issues around const exemptions are unsolved SCC has yet to rule on whether they are an available remedy SCC said it will use it in conjunction with temp suspension of validity (give relief to claimant until law is fixed) o Crts may be more willing to grant where individuals are part of easily identifiable grp and determination does not require highly discretionary case-by-case balancing of facts
Shacter v. Canada (1992):

S claims for paternity benefits following birth of his child Dismissed as not falling within provision of Unemployment Insurance Act Challenged the decision as violation of his rights to equality under s.15 said discriminated btwn natural and adoptive parents Provision struck down, leg suspended

Severance: Inconsistency something improperly included in statute which can be severed or struck down Reading In: Inconsistency defined as what statute wrongly excludes rather than wrongly includes Both: Have purpose of being as faithful to requirements of const and scheme enacted by leg

Reading In or Severing?
1) Question not whether crts can make decisions that impact on budgetary policy but to what degree they can appropriately do so Cannot use a remedy which intrudes into this sphere in such a substantial way that changes the nature of the leg scheme inappropriate 2) Whether significance of part which would remain is substantially changed when offending part is struck down When group to be added is smaller than group originally benefited, this is indication that assumption that leg would have enacted benefit in any case

When group is larger than original group then this could indicate assumption is not safe 3) If remaining portion is very significant or of long standing nature, it strengthens assumption that it would have been enacted w/out impermissible portion striking down immediately would be inappropriate b/c would deprive eligible ppl of a benefit w/out providing relief to respondent should suspend to give parliament time to bring provision in line with const imprudent to read in excluded group consideration of budgetary implications excluded group seeking to be included likely outnumbers group who already gets benefits inclusion would be substantial enough to change nature of scheme as a whole appropriate action: declare provision invalid but suspend declaration to allow leg to weigh all relevant factors in amending the leg to meet const requirements

Twin Guiding Principles:


1) Respect for role of leg 2) Respect for purpose of Charter Options: 1) Strike down 2) Severance 3) Read in/Read down 4) Strike down/read in/read down with temp suspension
Vriend v. Alberta:

Remedy of reading in would minimize interference w/ legitimate leg purpose avoid excessive intrusion into leg scheme Striking down IRPA would deprive all Albertans of human rights protection unduly interfere w/ scheme Budgetary implications not a problem Reasonable to assume if leg had to choose btwn no human rights leg or having one that offered protection on ground of sexual orientation would choose latter shows that does not alter leg significantly Group to be read in is smaller than one already included Leg can pass new statute in response Leg can use override DISSENT: Major o Not appropriate to read in o Should declare offending sections invalid and provide leg w/ opp to fix
M v. H (1999):

Exclusion of same-sex couples from definition of spouse Struck down underinclusive leg subject to 6 month delayed declaration of invalidity Reading in wouldnt work b/c would remedy one const wrong only to create another b/c defin of spouse found throughout Act

Defining Limitations: Section 1


s.1 guarantees rights and freedoms set out in it subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society Oakes Test: 1. Prescribed by Law 2. Pressing and Substantial Objective 3. Proportionality Test a. Rationally connected to Objective b. Least Restrictive Means c. Proportionate Effects (negative effect vs. importance of objective)

Limits Prescribed by Law:


o o o o o Law must be adequately accessible A norm cannot be regulated as law unless it is formulated w/ sufficient precision to enable the citizen to regulate his conduct He must be able w/ appropriate advice to foresee to a degree that is reasonable in the circs, the consequences which a given action may entail Limit must be set out in legal rule Publicly accessible Not too vague (NS Pharmaceutical articulates std that even if a rule is publicly accessible, it cant be too vague) If limitation is imposed in absence of legal authority then it is not prescribed by law Need notice, accountability (for any restriction of a const right) Std is balance of probabilities Limits can be prescribed by common law, statute or regulation BUT not internal directives Re Ontario Film & Video Appreciation Society: censors had unfettered discretion with no statutory limits despite internal criteria developed by board Limits cannot be prescribed by law if too vague Irwin Toy: crt held restrictions re. advertising to kids was clear to satisfy prescribed by law and law was justified restriction on freedom of expression Requirement serves gatekeeper function limits instances that infringement will be upheld Fair Notice: Formal Notice: i.e. acquaintance w/ actual text Substantive Notice: understanding that some conduct comes under the law Limitation of law enforcement discretion a law must not be so devoid of precision in its contents that a conviction will automatically flow from decision to prosecute A vague provision does not provide an adequate basis for legal debate (i.e. for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria)

R. v. Nova Scotia Pharmaceutical Society (1992): Assessing for vagueness

Pofj that laws must not be too vague Factors considered when determining if a law is too vague: o Need for flexibility and interpretive role of the crts o Possibility that many varying judicial interpretations may exist and co-exist

Impossible to achieve absolute certainty, std of intelligibility more appropriate Rationales of Vagueness: o Fair notice to citizen o Limitation of enforcement discretion Unintelligible provision gives insufficient guidance for legal debate unconstitutionally vague Need room for debate to be able to reach a conclusion by reasoned analysis and applying legal criteria Does not sufficiently delineate any area of risk and cannot provide fair notice or limitation of enforcement discretion Offers no grasp to judiciary

Pressing and Substantial Objective Sufficiently Imp Obj to justify limiting right
Govts rarely fail at this stage Hard to convince a crt that objective offered by govt is not pressing and substantial Almost any objective will qualify Only objectives that will not meet this stage those that run counter to the reason for entrenching rights and freedoms in first place Must state reason (i.e. RJR MacDonald: advertising violates s2(b) but was necc to prevent ppl from being persuaded by advertising and promotion to use tobacco products) Objective in infringing govt action must be sufficiently important to justify overriding constitutional rights or freedoms must be pressing and substantial and directed at the realization of collective goals of fundamental importance

Proportionality Rationally Connected Measures must be designed to meet objectives


Method chosen by govt must be rationally connected to objective Almost always met low standard tenuous connection Connection btwn means and ends o RJR MacDonald allows inconclusive evidence of reduced smoking as meeting a means ends test for rationality Internal Rationality: Oakes it is not rational to conclude that drug trafficking will be reduced by punishing someone found with small or negligible amount of narcotics no rational connection btwn possession of small amount and intent to traffic

Minimal Impairment Means should impair right no more than necessary


Most cases turn on this branch higher standard Reasonableness Test Comparative inquiry To what extent is the govts chosen means having impact on Charter What are the alternatives that would have less impact on Charter but nearly as effective Assess chosen means against hypothetical means consider alternatives Look for guidance to alternatives: social science If alternative, less-restrictive means then strike down leg Focus on strength of connection btwn means and ends o Insists on strong connection o POLICY: Both minimal impairment and rationally connected deal with means and rationality but different standards

Can argue that rational connection test is superfluous, redundant hard to imagine something that meets minimal impairment and not also rational connection

Proportionate Effect Proportionality btwn effects and objective


Effect must be proportionately more beneficial to society than costs associated w/ infringement of freedom Balance btwn negative interference and importance of govt objective (effects versus objective)

Edmonton Journal v. Alberta (1989):

Wilson: must interpret s.1 in contextual approach Recognizes particular right or freedom may have diff value depending on context Contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in case as well as relevant aspects of any values in competition with it

Thompson Newspapers Co. v. Canada (1998):

Bastarache interpretation of s.1 Contextual approach by indicating vulnerability of group leg wishes to protect Groups own subjective fears and apprehensions of harm Inability to measure scientifically harm in question Nature of activity infringed

RJR MacDonald v. Canada (1995):

McLachlin Nothing in jurisprudence suggests contextual approach reduces obligation on state to meet burden of demonstrating limitation on right imposed by law is reasonable and justified Context essential but cannot be carried to extreme of treating challenged law as unique socioeconomic phenomenon, of which parliament deemed best judge Deference accorded to parliament leg varies w/ social context

Running Through Oakes:


1. Identify precisely what the infringing measure is 2. What is the pressing and substantial objective? 3. Are the means chosen to accomplish objective acceptable? 4. What are the negative effects of the infringement vs. positive effects? Apply in contextual, flexible manner Judges dont agree on how to apply it Should be done in relation to right and freedom at issue i.e. Keegstra weigh issue of hate propaganda, not freedom of expression in general

Dagenais Test:
Crt looks at real effects versus the real harms rather than theoretical benefits Lamer added this third part to Oakes Test Look not only at objective of law but also at its actual effects Crt looks to social science evidence Controversial crt usually said not to assess effectiveness but in this case they look at its effectiveness

Context and Deference


Context: crt must assess the value or significance of right and its restriction in context rather than in abstract Deference: crt more willing to defer to leg in certain circs for their judgment about need for particular limit on Charter right Crts divided on when deference should be paid to leg, to what degree, what contextual factors should be taken into acct Contextual Analysis Must Consider 3 Factors: 1. Nature of Expression At Issue: Restrictions should be closely tied to truth, democracy, self-realization Must meet a searching degree of scrutiny (Thompson Newspaper laws regarding opinion polls have connection to democracy and self-realization) When expression strays from core values, a lesser degree of scrutiny is required (i.e. obscenity, hate propaganda, comm for purposes of prostitution, advertising dangerous prods) 2. Socio-Economic Position of Persons Affected By the Law If law protects disadvantaged groups, std of justification is reduced done so Charter does not roll back laws enacted to further interests of relatively disadvantaged (Irwin Toy) Inappropriate when group is not vulnerable i.e. Canadian Public (Thompson Newspaper) When law has negative effect on marginalized grou, govt must meet rigorous std to justify 3. Quality of Leg Debate Preceding Enactment of Law Crts will be more impressed if leg makes balanced effort at combating perceived problem (RJR McLachlin not impressed by lack of debate and blunt attempt to bad advertising)

Section 33: Override / Notwithstanding Clause


Can override ss.2, 7-15 and do not have to show reasonable or demonstrable justification Express declaration of override is necessary in the statute itself Sunset clause expires after 5 years to encourage regular review by leg Override is not inferred Must specifically refer to the right to be overridden POLICY: o People dont like it bc defeats purpose of having Charter o Other side says: judges are fallible and can make mistakes o People more comfortable with it now b/c flexible, contextual approach of s.1 means govt doesnt need to use it often Has only been used twice in Canada o Sask back to work legislation o Alta marriage btwn man & woman (stupid though b/c fed has jurisdiction over marriage & divorce)

Ford v. Quebec (1988):

Challenge to Quenec Charter of French Language required French only signs and ads Was use of override valid? Contention that provision did not sufficiently specify guaranteed right or freedom which leg intended to override

Requirement: need express declaration If intended only to override in part then there would have to be sufficient reference in words to part to be overridden Crt held that omnibus reference to rights was sufficient o Not reasonable to require reference particular to statute containing declaration b/c a leg body might not be in a position to judge with any defree of certainty what provisions of the Charter might be successfully invoked against various aspects of the act in question Normal presumption against retroactivity should be applied in language of s.33 should be construed as permitting only prospective derogation only

Freedom of Expression: section 2(b)