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PART I INTRODCUTION BASIC CONCEPTS

Constitution is legal framework of state; Sets out primary rules of lawmaking/legal system:
1. How/whom are laws made; 2. How primary rules can be changed; 3. Limits on state power?

1. Elements of Constitution

(a) Written vs. Unwritten
Written = core document/documents take precedence over all other laws AND special
amendment rules. Eg.: U.S. Written, U.K. Unwritten (no single core constitutional
document)

(b) Canada's Written Constitution: (see p. 161 of Monahan)
U.K. Statutes CA 1867
Amendments to CA 1867 (1871, 1886, 1907, 1915, 1930, 1940, 1946, 1949, 1960,
1964)
Parliament of Canada Act, 1875
` Canada (Ontario Boundary) Act, 1889
Statute of Westminster, 1931
Canada Act 1982
Constitution Act, 1982
U.K. Orders In Council
1870 Order admitting Rupert's Land; 1871 Order admitting B.C.; 1873 Order
admitting PEI
1880 Order admitting Arctic Archipelago
Canadian Statutes
Manitoba Act, 1870l; Alberta Act, 1905; Saskatchewan Act, 1905
Amendments to CA 1867 (1965, 1974, 1975 (no. 1), 1975 (no. 2))
Post- 1982 Constitutional Amendments
Constitution Amendment Proclamation, 1983 (Re: Aboriginal Rights)
Representation Act, 1985 (Re: Representation in the HoC)
Constitution Amendment Proclamation, 1987 (NF Act, Re: Denominational Schools)
Constitution Amendment Proclamation, 1993 ( P.E.I.; Re: Fixed Link)
Constitution Amendment 1997 (NF Act, Re: Denominational Schools)

(c) Canada's Unwritten Constitution: (see p. 162 of Monahan)
Pre-1867 Constitutional Enactments
The Royal Proclamation, 1763
Provincial Constitutions of NS, PEI, NB, NF, BC
Constitutional Conventions
Principles of Responsible Government
Conventions Regulation Fed-Prov. Relations
Judicial Decisions
Interpretations of the Constitution Acts
Common Law Doctrines defining powers of the Crown, Parliament, or State Officials
Organic Statutes
Supreme Court Act; Canada Elections Act; Financial AdministAnalysis and
Dispositionn Act; Citizenship Act
Prerogative Orders
Letters Patent of 1947 constituting the office of the GG
Aboriginal Agreements
Treaties 1 to 11


` James Bay and Northern QC Agreements
Inuvialuit Final Agreements
Yukon First Nations Agreements

2. The Canadian ConstitutionCA 1982, s.52

Canadas constitution always been partly written/unwritten; however, since 1982, primarily
written, as we have had definition of the Constitution of Canada (see. s. 52 of Constitution
Act, 1982) Magnet I p. 58; Appendix A-2 p. 3.

(a) Section 52, C.A. 1982
The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent
with the provisions of the Constitution is, to the extent of the inconsistency, of no force or
effect.
The Constitution of Canada includes:
o the Canada Act 1982, including this Act;
o the Acts and orders referred to in the schedule [see Hogg, p. 1166; 30 items listed]
o any amendment to any Act or order referred to in paragraph (a) or (b).
Amendments to the Constitution of Canada shall be made only in accordance with the
authority contained in the Constitution of Canada.

(b) Judicial Review Under s. 52
S52 explicitly provides for judicial review (idea already existed in BNA Act)
c.f. to Marbury v. Madison (1803), regarding U.S. Constitution (Magnet I, p. 168):
o Chief Justice Marshall: The Constitution is either a superior paramount law,
unchangeable by ordinary means, or it is on a level with ordinary means, or it is on a
level with ordinary legislative acts, and, like other acts, is alterable when the
legislature shall please to alter it. If the former part of the alternative be true, then a
legislative act contrary to the Constitution is not law: if the latter part be true, then
written constitutions are absurd attempts, on the part of the people to limit a power
in its own nature illimitable.
o Marbury v. Madison controversial at the time, thought by some to be aggrandizing
Courts own power, BUT
o Court is not enforcing its own rights/judicial power, but rather rights of
individual citizens, AND
o Courts act passively, non-coercive way; no power to impose taxes, call upon
army/police.

(c) Unwritten Rules and Principles of Constitutional Significance--
Not included within s. 52 (therefore, called unwritten although most within written
documents);
May still have some for of priority over other laws (i.e. treaties explicitly protected by CA
1982, s.35);
May also have special amending procedure, although not as rigorous as applicable to
elements of CC. Include:
o Pre-1867 Constitutional Enactments (Royal Proclamation of 1763)
o Constitutional Conventions
o Judicial Decisions (i.e. common law rules regarding the Crown prerogative)
o Aboriginal Treaties/Agreements
o Patriation Reference


SCC in the Secession Reference recognized four principles that also have
constitutional significance:
1. Democracy
2. Federalism
3. Constitutionalism and the Rule of Law
4. Protection of minorities
In the Secession Reference, SCC used principle of democracy to establish a duty to
negotiate secession following a clear majority on a clear question voting for secession.
Unclear how broadly these unwritten principles can be applied.
They are potentially vague concepts, but so much of the constitution is vague. Still,
although the SCC said these principles underlie constitution, were not explicitly part of
original written document
could be argued that SCC has amended the Constitution w/o authority to do so.

3. Responsible Government

(a) Basic Principles
constitutional convention: unwritten political rules regarded as binding
Patriation Reference (1981) citing C.J. Friedman (Manitoba) in Manitoba Reference:
o General agreement that a convention occupies a position somewhere between a
usage or custom on the one hand and a constitutional law on the other. There is
general agreement that if one sought to fix that position with greater precision he
would place convention nearer to law than to usage or custom. There is also
general agreement that a convention is a rule which is regarded as obligatory
by the officials to whom it applies. There is, if not general agreement, at
least weighty authority, that the sanction for breach of a convention will be
political rather than legal.
Two Main Principles:
o GG (or Lt. GG) will appoint PM (Premier) who enjoys the confidence of the elected
legislative chamber;
o GG (or Lt. GG) will then act on advice of the PM (Premier).
Responsible Government principle reconciles appointed heads of state with democratic
legitimacy of Government

(b) Powers of GG
Appoints PM, Cabinet Minister, Senators, Judges (SCC and Prov. Superior Courts)
[constitutional convention]
Signs bills into law
Power to disallow provincial laws (has not been exercised for over 50 years) and to
reserve federal laws (has not been exercised for over 100 years);
Delivers Speech from the Throne announcing government policy

(c) Power of Prime Minister
Responsible Government ensures all these powers exercised on advice of PM or cabinet.
However, leads to undue centralization of power in hands of PM; no checks and balances,
since Prime Minister controls both legislature and executive branch; available means of
controlling Power of PM
o Senate reform (EEE in Charlottetown defeated in 1982);
o Increase provincial powers;
o Change electoral system make it more difficult to achieve a majority (e.g. First-
past-the-post to Prop. Rep);


o Relax party discipline. (Whereby MP can be banished for disagreeing e.g. John
Nunziatta on GST; also simply groupthink competition in government btw the
parties).
Problem is no sitting PM likely to support proposals to decrease power.
1982: Judiciary given more power, does not take orders from PM; via Charter able to
provide check on PM.

4. Constitution Act, 1867

(a) Introduction
Created Federal form of Govt: Dominion of Canada out of colonies of Canada, Nova Scotia,
New Brunswick;
Ordinary statute passed by U.K. Parliament; originally titled BNA Act 1867; proclaimed into
law on July 1, 1867.
British statutes applicable to colonies took precedence over local statutes (Colonial Laws of
Validity Act 1865)
Priority of British law over Can. Law Court power to review statutes to ensure conformity
with BNA Act.

(b) Legislative Power
Parliament (Senate, HofC, w. Queen) [Part IV, ss.17-18]. All 3 constitute Parliament - all
bills must pass all three to come into law. Bill can be introduced in either house, read 3
times in each, then signed by Queens rep (GG).
Formal rule: Only Parliament can make laws/statutes. Rights cannot be taken away except
by statute, (rule of law principle). Crown (Government) cannot legislate through exercise of
royal prerogative (residual power of Crown).
However, in practice, Government often delegated broad powers to legislate, via statutes
themselves. GG in council may make regulations in given areas; Courts have upheld this
practice as consistent with the rule of law principle.
ss. 17 CA 1867 - There shall be One Parliament for Canada, consisting of the Queen, an
Upper House styled the Senate, and the House of Commons.

(c) Executive Power: CA 1867 Part III: ss.9-16
Executive is the Government, power is extensive (Magnet I p. 154); includes PM, cabinet,
also departments/ministries, police, and the military.
s. 9 vests executive power in the Queen and her rep the GG.
s. 11 establishes the Privy Council to advise the GG.
s. 12: power of GG in council, namely advice of the PC (represented by Cabinet).
Remember principle of Responsible Government establishes that executive power wielded
on advice of cabinet (democratically elected reps).
HOWEVER, Executive does not have inherent power to make laws. For executive to enact
laws with binding force, must be authority set out in statute or rule of c.l. Very limited power
at c.l. for Government to use royal prerogative to enact binding laws (usually just foreign
policy).

5. Judiciary: CA 1867 Part VII: ss.96-101

(a) Background
Prior to 1867, already had superior courts in each province; CA 1867 continued Courts,
gave GG right to appoint judges; appeals to the JCPC


1875: SCC established (SC Act based on s. 101 of CA 1867). s.96 Courts = Provincial
Trial/Appeal Courts continue to be controlled via appoints of judges on advice of PM to GG.
1949: Eliminated appeals to JCPC in relation to Canada; SCC became final court of appeal.
Quebec critical of this move and reluctant to give up JCPC.
SCC has plenary jurisdiction over Provincial lower courts (unlike U.S. where SC does not
hear matters of state law, only deals with federal and interstate law).
Canadas Court structure is unitary
s. 96: GG appoints judges.
s. 99: Judges can only be removed by resolution of legislature. shall be removable by
the Governor General on Address of the Senate and House of Commons (mandatory
retirement at 75)
Provisions incomplete: Courts have supplemented by recognizing unwritten principle of
judicial independence.
Judicial Independence:
o Individual - Each judge free to make her decisions w/o undue influence.
o Collective - Separation of Powers btw orders of government. Courts are impartial
umpire in disputes.

***CA 1867, Part Vs.58-90: Three branches of government are replicated at Provincial
level.

(b) Separation of Powers
Montesquieu (The Spirit of the Laws): saw vital connection btw liberty and separation of
powers. Body that makes laws should not enforce/administer laws. Power will check
power. Doctrine is at heart of the U.S. Constitution.
CanadaHigh degree of integration btw legislature and executive.
Government and the office of the PM control the executive and the legislature
Intentionally concentrated power to allow state to take activist measures in common interest
and it is desirable to have this so (Magnet I, p. 202ff). The U.S. system of checks and
balances can often lead to paralysis.
checks on power arise from strength of provincial governments and the judiciary.

(c) Rule of Law Principle
Rule of law requires that all exercise of state power find its source in a legal rule.
Principle recognized in preamble to CA 1982.
CA 1982Whereas Canada is founded upon principles that recognize the supremacy of
God and the rule of law.
Recognized by SCC in the Patriation Reference (1981), (Magnet I p. 58); Manitoba
Language Reference (1985), (p. 174 in Magnet I); and Secession Reference (1998),
(Magnet I p. 23).
Manitoba Language Reference: Two senses of Rule of Law (p. 175):
o Procedural: precludes the influence of arbitrary power AND
o Substantive: preserves and embodies the more general principle of normative
order [] which [] is linked with basic democratic notions.

(d) Roncarelli v. Duplessis [1959] S.C.R. 121 (Magnet p. 193)Rand J.
Facts: Roncarelli puts up bail to help Jehovahs Witnesses arrested for spreading their
views
Duplessis government revokes Roncarellis liquor license and declares him barred forever)


Duplessis government said that there was a general power to revoke licenses in the public
interest.
Analysis and Disposition Rand J.s opinion rejects arbitrary exercise of power; there is
no such thing as absolute or untrammelled discretion. There are inherent limits and it
is up to the court to identify those limits.
Principles:
o Public officials must abide by rule of law. Duties granted by statute must be
exercised in good faith.
o Principle of validity states that every official act must be justified by law.
o Only a statute could authorize the cancellation, and such a statute would not
authorize Duplessis to revoke license himself. Court also awarded punitive
damages ($25,000) forcing Duplessis to pay up personally!
General notion of how rule of law principle imposes certain limits on government and
parliamentary action, BUT rule of law itself not a basis for setting aside legislation as
unconstitutional.
Magnet p. 178: Certainly it would be an unusual case which would warrant the use of this
power allowing for the possibility that the rule of law doctrine might serve as an
emergency switch to overturn legislation in such unusual circumstances may provide useful
flexibility in Canadas constitutional system.

(e) R. v. Beauregard [1986] 2 S.C.R. 56. (Magnet p. 261)Dickson C.J.
Facts QC Superior Court judge challenges federal legislation providing for contributory
pension scheme for judges.
Analysis and Disposition SCC upholds legislation but recognizes judicial independence
binding on Parliament and Executive.
CA 1867 s.100 stipulates Parliament shall fix and provide salaries, pensions, of judges, but
w/o hint of impropriety: Power of Parliament to fix salaries and pensions of superior
court judges not unlimited. (p. 265 in Magnet I).
Sense that judicial independence was both individual and collective was novel in the latter
aspect: [Judicial independence] connotes not merely a state of mind or attitude in
the actual exercise of judicial functions, but a status or relationship to others,
particularly to the executive branch of government. (p. 263 in Magnet I).
Rationale for collective independence is that judiciary is protector of Constitution and
fundamental values embodied in itRule of Law, Fundamental Justice, Equality,
Democracy, etc.

(f) Reference Re Provincial Judges [1997] 3 S.C.R. 3 (Magnet p. 269)Lamer C.J.
Facts Issue is validity of provincial legislation rolling back judicial salaries as part of
general restraint initiatives.
Analysis and Disposition Legislation is held to be invalid as contrary to principle of
judicial independence.
Government cannot single out judges for some kind of discriminatory treatment, can only
reduce their salaries as part of an across the board reduction AND they had to establish
Judicial Compensation Commissions.
o 1. Independent, effective, objective commissions
o 2. Government must justify decisions which depart from JCCs by a standard
of simple Rationality
o 3. Judiciary may never negotiate with Executive or legislature but may
express concerns or make representations to governments regarding
renumeration. (p. 16/271 in Magnet I)


Argument made on basis of Charter 11(d) to be presumed innocent until proven guilty
according to law in a fair and public hearing by an independent and impartial
tribunal, and preamble to CA 1867 similar in principle to that of the United Kingdom
phrase importing various values, including independence of judiciary.
Preambles not legally binding, and do not have legally binding force, but do assist
interpretation, serve as a guide to underlying objectives drafters of the act seeking to
pursue.
Requirement of JCCs imposed retroactively, (i.e. requirement always existed but Provinces
unaware earlier)

6. Federalism

(a) General Principles
Power (legislative and revenues) divided btw different orders [not levels] of
government (central and regional).
Each sphere independent of the other
Individuals subject to laws enacted by both central and regional governments.
Constitution not unilaterally amendable by one order.
Independent umpire to rule on disputes btw the different orders of government.
Political Theorists often equate Federalism w/ limited government and conservatism; (see
Dicey (p.89): Federalism characterized by weak government, tending toward status quo,
change more difficult than w/ unitary system.
Theorists on political left also critical b/c strong central state required to control large private
corporations,. E.g. Laski (1936, p.89): in age of giant caplitalism federal system deprives
state of tools needed to regulate capital.
K.C. Wheare: Only four federal systems, U.S., Canada, Australia (1901) and Switzerland
(1848).
Watts: Federalism undergoing revival; pressure move power upward/downward.
Globalization (transportation and technology) increases need for supranational
organizations and local political units at expense of nation-states. Traditional nation-states
both too small and too large serve citizens needs. Federalism ideal response to pressures.
1867: Canada was quasi-federal rather than truly federal. GG could disallow provincial
laws; GG appoints LGs, can instruct them to reserve a bill (i.e. not sign it) (see CA 1867,
ss.55 and 90). Powers still exist, though constitutional convention that they will not be
used. Disallowance not used since 1943. Reservation not used since 1961. In The
Secession Reference, SCC calls power of disallowance obsolete.
Canada today is seen to be a truly federal state, more decentralized than either the U.S. or
Australia.

(b) Division of Power
ss.91-92ff of CA 1867 provide for catalogue of federal and provincial division of powers.
1867, thought powers provided for powerful central government. Two enumerated lists of
powers, plus residual power for the federal government (see opening words POGG
power).
Key enumerated powers given to federal government: trade and commerce, criminal law,
tariffs and customs, unlimited taxation and borrowing. 1867: most revenue came from
tariffs and customs; provinces got money in form of grants from federal government.
Judicial interpretations (primarily thru the JCPC) have narrowed federal powers/expanded
provincial powers.


JCPC: POGG residual power and enumerated powers interpreted narrowly, whereas
broad interpretation of property and civil rights [92(13)], key provincial power. Any laws
affecting rights in the province are seen to be within 92(13) and beyond federal power.
Provincial power also grown through aggressive provincial-building strategies.
Federal government (since late 1950s) attempted to play social policy role using spending
power; i.e. use power of money to influence/control what provinces do within their
jurisdictions. Offer money to provinces (shared cost program) or directly to citizens
(millennium scholarship fund). This has been criticized, particularly by the province of
Quebec.
In Social Union agreement (2000), the Federal Government agreed not to set up any new
shared cost programs unless agreed to by two-thirds of the provinces, thereby creating a
limit on their spending power.

(c) Constitutional Amendment: CA 1982
BNA Act 1867: ordinary British statute amendments by statutes passed by U.K.
Parliament (Westminister).
Procedure developed whereby Canadian Parliament pass resolution requesting an
amendment; Constitutional convention that Britain would pass requested amendment [22
times btw 1867 1982, firm convention by early 20
th
-century that Britain would only pass
amendments upon request].
1982 Amendment: Federal Government introduced a resolution into Parliament requesting
Britain to pass the Canada Act (October 1980). Trudeau conducted negotiations with
Provinces but failed, so he proceeded unilaterally.

(d) The Patriation Reference [1981] 1 S.C.R. 753, p. 101.
Facts
Provinces brought a challenge to the unilateral attempt to amend Constitution.
Analysis and Disposition
September 1981, the SCC ruled
U.K. has legal power to amend and Provinces consent is not legally required
Consistutional convention requires substantial provincial consent prior to request.
Precedents of 1940, 1951, and 1964 established provincial consent required (in those
cases it was unanimous)
Flaw or political compromise in decision was they only required substantial consent of
the Provinces; SCC didnt want to put Constitution into a straight-jacket, and so they went
with the proposal from Saskatchewan.
Effect of Judgment: Both Trudeau and Provinces declare victory
further negotiations. Nov. 1981 agreement with 9/10 provinces.
Two key changes agreed to: 1. Provincial Amending Formula; 2. Notwithstanding clause
in the Charter.
Quebec and Aboriginal groups objected to amendments (but later s.35 inserted, which
applies to Aboriginal rights, with the addition of the word existing which had not been in the
original draft).
April 17, 1982, passed into law by Her Majesty the Queen.

(e) CA 1982, Part V, ss.38-49 and Amendments
CA 1982 abolishes Brit's power to enact law for Canada, i.e. the patriation of Constitution.
Continuity: Everything previously existed (BNA Act 1867 etc.) continues as part of
definition in CA 1982 s. 52.


Amending formula moves from executive-based to legislative-based procedures (requires
legislative resolutions by Parliament and Provincial legislatures; but executives control the
legislatures).
Resolution expresses legislatures view on particular matter; not legally binding as such, but
provides direction on potential amendments/changes. We hereby authorize the GG to
proclaim an amendment
Once GG has right number of identical resolutions (i.e. from HofC and Senate and 2/3 of
Provinces, constituting 50% of population) amendment can be passed. Also right to opt out
of some amendments if Province chooses.
Political reality is that you have to try to forge agreement prior to initiating the procedure.
Even if all 10 Provinces pass a resolution, it is federal governments role to protect the
national and minority interests.

(f) General Amending FormulaCA 1982, s. 38
s. 38(1): 2/3 Provinces with 50% majority population required [7-50 formula]
ss. 38(2)and(3): No veto right, but province may opt out of amendment taking away
provincial powers.
s. 39: 1-year minimum and 3-year maximum under s. 38 from time first resolution is past.
s. 40: Compensation provided to provinces that opt out of amendments related to
education and cultural matters.

(g) Special MattersCA 1982, s. 41
Unanimity required for 5 classes of amendments:
(a) Office of the Queen
(b) Right of a Province to House of Commons members not less than number of Senators in
1982
(c) Subject to s. 43, use of English of French
(d) Composition of the SCC
(e) Amendment to this Part (Amending Formula itself)

(h) Special MattersCA 1982, s. 42
7-50 formula, with no opt out, for amendments to federal institutions (i.e. Senate, HoC,
SCC).
(a) principle of proportionate representation of provinces in HoC prescribed by the
Constitution
(b) powers of the Senate and method of selecting Senators
(c) number of members a province is entitled to have in Senate and residence qualification of
Senators
(d) subject to 41(d), the Supreme Court of Canada.
(e) Extension of existing provinces into the territories; AND
(f) Notwithstanding any other law or practice, the establishment of new provinces.
s. (1): No opt out for the above

(i) Other MattersCA 1982, s. 43-49
s. 43: Bilateral procedure for amendments affecting certain provinces only.
ss. 44 and 45: Limited federal and provincial unilateral amending powers. (s.44and45)
ss. 46: Either Federal Parliament or Provincial legislature can initiate change. (s.46)
s. 47: Senate cannot block changes for more than 180 days; HoC can simply pass it again
after 180 days.
s.48: Queens Privy Council to advise GG to issue proclamation when resolutions passed.


S.49: Constitutional conference composed of PM and Premiers shall be convened within 15
years (1997?)

(j) Amendment Analysis Methodology
Stage 1: Do we have an amendment to the Constitution of Canada?
1. If not, Part V doesnt apply why not?
2. If yes, proceed to second stage.
Stage 2: Does amendment fall within any of the special cases(ss.41-45).
1. If yes, follow applicable rules.
2. If no, then follow general procedure under s.38.
3. Does amendment derogate from provincial powers?
4. If yes, special rules in s.38(2)-(4) and compensation in s.40 apply.
5. Time limits under 39(2) apply.


(k) Hypotheticals
1. Canada Health Act:
Not one of enumerated docs in s.52 schedule; BUT, s.92(7) seems to allocate responsibility
for health care to provinces; however federal government use CHA in conjunction with
spending power to intervene in health care.
CHA an ordinary statute, passed in 1984, and would therefore be odd if it required provincial
consent to amend or change it. Nonetheless, the four principles recognized in the
Secession Reference (Federalism, Democracy, Constitutionalism and the Rule of Law, and
Minority Rights).
2. Elected Senate
Yes, part of CA 1867 s.21ff. AND, Yes, s.42 stipulates that it is one of the special cases,
whereby the 7-50 rule with no opt out would apply. Three-year time limit under s.39(2)
applies.

(l) Quebec and C.A. 1982
QC refused to sign on to amendments in Nov. 1981, launched separate legal challenge based
on constitutional convention. Claim rejected by both the QC Court of Appeal and the SCC
(December 1982)
Court rules there is no veto for QC [n.b. in early 1981, QC had agreed to similar formula to s.
38]
Constitution found to be legally binding on QC and in accordance with constitutional
convention.
Meech Lake Accord 1987
Key concept was QC recognized as distinct society; also attempted to change s. 42 to
require unanimity.
Trudeau opposed; came out of retirement. The accord became politically controversial and
died before 3-year time limit.
QC proposed sovereignty referendum in October 1992 if no renewed offers of Federalism.
Charlottetown Accord - 1992
Referendum averted by signing of Charlottetown accord in 1992; however defeated in Natl
referendum.
Referendum 1995
1994: Parizeau elected leader in December. Holds referendum on sovereignty in fall of 1995.
Guy Bertrand, QC lawyer, challenges referendum saying it is inconsistent with Constitution;
Justice LeSage said he wanted to hear arguments; QC AG walks out; LeSage ruled in favour
of Bertrand.
Referendum proceeds; No wins with only 50.6% of vote.



(m) Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, p. 23
Facts
Federal government therefore (Allan Rock, AG), in September of 1996, referred three
questions to Supreme Court of Canada.
o Under the Constitution of Canada, can Quebec effect secession unilaterally?
o Does international law give Quebec the right to secede unilaterally?
o In the event of a conflict btw domestic and international law which would take
precedence?
Analysis and Disposition
Unwritten constitutional principles may in certain circumstances give rise to
substantive legal obligations which constitute substantive limitations upon
government action. These principles may give rise to very abstract and general
obligations, or they may be more specific and precise in nature. The principles are
not merely descriptive, but are also invested with a powerful normative force, and
are binding upon both courts and governments. In other words, as this Court
confirmed in the Manitoba Language Rights Reference, in the process of
Constitutional adjudication, the Court may have regard to unwritten principles which
form the very foundation of the Constitution of Canada.
Four Broad Principles:
1. Federalism: the principle of Federalism recognizes the diversity of the component
parts.
2. Democracy: The relationship between democracy and federalism means, for
example, that in Canada there may be different and equally legitimate majorities in
different provinces and territories and at the federal level.
3. Constitutionalism and the Rule of Law: Simply put, the constitutionalism principle
requires that all government action comply with the Constitution. The rule of law
principle requires that all government action must comply with the law, including the
Constitution.
4. Protection of Minorities: The principle is clearly reflected in the Charters provisions
for the protection of minority rights.
No right to unilateral secession (interpretation of paras 83-84); secession is a legal act (not
just political), and a right to secession requires a constitutional amendment in the very
least, if not something more than an amendment.
However, if a clear majority on a clear question (para 87) in favour of secession, the
democratic principle would impose a duty to negotiate the terms. Duty is legal, however it
is not legally enforceable as such.(para 96ff, 97-98).
Court has no supervisory role with regard to the potential negotiations. (para 100).
HOWEVER, if Canada were to be intransigent, such actions may prompt international
recognition of sovereign QC: thereby political gives rise to the legal. (Law = rules of
political confrontation/dispute settlement)
2000: Clarity Act - Before question is asked, HoC will have to issue a formal
statement on whether the question is clear; if it is not then the Federal government
will not be able, under the statute, to negotiate.
Furthermore, Federal government will also have to determine, after vote, if the decision
constitutes a clear majority.
Less cynical view (Monahan) is that federal government is just making it clear up front. The
more cynical view (mine) is that they have the power to enact another legal instrument
whereby they can negotiate from a position of strength.

Sask. AG: The threads of a thousand acts of accommodation are the fabric of a nation.







JUDICIAL REVIEW ON FEDERAL GROUNDS

I. PRINCIPLES OF CONSTITUTIONAL INTERPRETATION

1. General Principles

(a) Presumptions of Constitutionality
1. Burden of demonstration is on party who is challenging validity of the law.
2. If there is a valid interpretation and an invalid interpretation, Court should find in favour of valid
law.
3. When validity of a law rests on facts, Government only needs to prove that there is Rational
basis for finding.
4. Where possible, Court should read down laws to ensure validity.

(b) Validity of a Law
Can be tested on two grounds:
1. Jurisdiction (Federalism Grounds): Law violates either s. 91 or s. 92, exceeds its power and
encroaches on another order of governments class of subjects.
2. Infringement of a Right (Charter grounds): Law may/may not be ultra vires, but violates
Charter right.
Law that extends beyond its authority can be:
1. Invalid: If its PITH AND SUBSTANCE comes within a class of subjects beyond jurisdiction of
legislative body in question.
2. Inapplicable: If law is valid but cannot be applied to extra-jurisdictional matters.
3. Inoperable: If there is a law which is Paramount.


2. Pith and Substance Doctrine For General Examination of Ultra Vires Legislation

(a) General
Courts developed doctrine as a way of structuring analysis under sections 91-92. Analysis has two
stages:
1. Determine the pith and substance of the legislation under review;
2. Determine if the legislation can be assigned to one of the governments heads of
legislative power.

(b) Walter v. A.G. Alta. [1969] S.C.R. 383,(Magnet I, p. 283) Martland J.
Facts In these actions the validity of the Communal Property Act was challenged by the plaintiffs
who were acting on behalf of Hutterite colonies.
These colonies held large tracts of land in the province. The legislation would restrict the colonies
from purchasing additional acreage.
Analysis and Disposition The purpose of the legislation was to control the use of Alberta
lands as communal property. While obviously aimed at Hutterite holdings, it did not forbid
existing colonies. It was not directed at their religious belief or worship, but at the practice of
holding large areas of land as communal property. It was a function of a provincial legislature
to enact laws which governed the holding of land within the provincial boundaries. The Communal
Property Act was valid provincial legislation. Martland distinguishes btw in relation to and
affecting by saying statute essentially in relation to s.92(13) of the CA 1867 and only effects s.
91(27) (Criminal Law). (p. 287):



(c) Munro v. National Capital Commission, [1966] S.C.R. 663, (Magnet I, p. 287) Cartwright J.
Facts The National Capital Commission, with the approval of the Governor in Council, and acting
under s. 13(1) of the National Capital Act, 1958 (Can.), c. 37, expropriated a farm in the township
of Gloucester in the province of Ontario owned by the appellant. It was conceded that the
appellant's lands were taken for the purpose of establishing the Green Belt proposed in the Master
Plan (Greber) for the development of the National Capital Region.
Analysis and Disposition The subject matter of the National Capital Act is the establishment of
a region consisting of the seat of the Government of Canada and the defined surrounding area
which are formed into a unit to be known as the National Capital Region which is to be developed,
conserved and improved "in order that the nature and character of the seat of the Government of
Canada may be in accordance with its national significance". That subject matter is not referred
to in either s. 91 or s. 92 of the British North America Act. Consequently, the sole power
rests with Parliament under the preliminary words of s. 91, relative to "laws for the peace,
order and good government of Canada". It was therefore within the powers of Parliament to
authorize the Commission, for the attainment of its objects and purposes as defined in the
Act, to make the expropriation of the lands of the appellant.
The statute is in relation to something otherwise not contemplated by CA 1867. It is in relation to
a new matter of national concern (POGG); only affects 92(13) (provincial jurisdiction over
property rights).
PITH AND SUBSTANCE: creates overlapping areas of concern and jurisdiction. All
legislation has various elements, logically overlaps Federal and Provincial concerns.
Walter deals with both Property (Prov) and Religious Freedom (Federal).
Court examines legislation to determine dominant elements. Walter, Martland looks
formalistically at legislation
Determine the PITH AND SUBSTANCE of a given statute or provision, look to:
1. Statute wording/title/heading;
2. Legislative history (parliamentary debate, government papers, Hansards);
3. Effect (but not efficacy) of the law;
4. Colourability Doctrine (prima facie purpose may mask real intent);
5. Singling Out: If provinces statute has a federal target, Court may declare this the
PITH AND SUBSTANCE of the law.

(d) R. v. Morgentaler, [1993] 3 S.C.R. 463 (Magnet I p. 289), Sopinka
Facts 1988: The government adopted the Medical Services Act and the Medical Services
Designation Regulation, which continued the prohibition of the performance of abortions outside
hospitals and the denial of health insurance coverage for abortions performed in violation of the
prohibition. Despite these actions, the respondent opened his clinic and performed 14
abortions. He was charged with 14 counts of violating the Medical Services Act. The trial
judge held that the legislation was ultra vires the province because it was in pith and substance
criminal law and acquitted the respondent. This decision was upheld by the Court of Appeal.
Province relied on s.92 ss. 7 (hospitals), 13 (civil rights), and 16 (local matters). Morgentaler: act
really quasi-criminal, and attempt to criminalize abortions. [Fed power in 91(27)].
Analysis and Disposition Court ruled statute invalid; was clearly motivated by desire to
criminalize abortions. They looked to the debates around the initial passing of the legislation (p.
294), and the practical effects.
Courts looks to:
o 1. Terms of the legislation, the legal effect
o 2. Purposes that the statute was intended to achieve (i.e. look behind the
simple legal effect); in so doing, permissable to look to:
a. Extrinsic Materials, and
b. Actual or practical effects.


Incidental effects will not lead to finding legislation invalid, so long as PITH AND
SUBSTANCE found to be valid. Nonetheless, effects will influence finding with regard to
legislative purpose.
Effects could lead to a piece of legislation being struck down on Charter grounds, as opposed
to Federalism or Division of Powers. In most constitutional challenges, burden is to satisfy
both Federalism and Charter grounds.

3. Necessarily Incidental/Ancillary Doctrine For Examination of Ultra Vires Provision
within Statute

Court recently added gloss on PITH AND SUBSTANCE; applies to challenges to particular
provisions (as opposed to entire statutes)
Even where PITH AND SUBSTANCE in relation to a head of power outside of authority, may
be upheld if necessarily incidental to a valid regulatory scheme that is found to be valid as a
whole.

(a) CSC v. Global Securities [2000] 1 S.C.R. 494, (Magnet I, p. 296) Iacobucci J.
Facts In 1988, the British Columbia Securities Commission and the United States Securities
Exchange Commission had entered into an agreement to provide mutual assistance in obtaining
documents and taking oral evidence. Section 141(1)(b) was added to the British Columbia
Securities Act to authorize the Commission's executive director to order a registrant to produce
records for this purpose. Global resisted a 1996 order to provide information concerning all
of its accounts with US addresses over a 14-month period, arguing that the Commission's
involvement in a foreign securities investigation was ultra vires the province.
Analysis and Disposition Iacobucci relies on Dicksons three-step analysis from GM Canada
(1989)
1. Is PITH AND SUBSTANCE of impugned provision valid under ss.91/92? If prima
facie invalid go to stage 2.
2. Is the act as a whole valid? If yes, proceed to stage 3.
3. Is the impugned provision sufficiently integrated within the overall scheme such
that it can be upheld?
Answer to first stage valid under 92(13); PITH AND SUBSTANCE is to monitor those who
trade securities in BC (i.e. to know if people in BC are breaking laws). BC shares info, thereby
can operate own scheme more effectively, quid pro quo.
stages 1 and 2 constitute the ancillary doctrine.

(b) General Motors v. City National Leasing, [1989] 1 SCR 641
Facts Company alleged that GM was guilty of price discrimination because it gave preferential
interest rate support to its competitors contrary to s. 34(1)(a) of the Combines Investigation Act
and, utilizing s. 31.1 of the Act giving a private right of damages to persons affected by breaches of
the statute, commenced an action against GM. GM brought an application the result of which was
that s. 31.1 was held ultra vires the Parliament of Canada.
Analysis and Disposition The appeal was dismissed. Section 31.1 created a civil cause of action
and was immediately suspect since a civil cause of action was within the domain of the provinces
to create. Whether the provision was constitutionally valid depended first on whether the
Combines Investigation Act was valid under the federal trade and commerce power found in
s. 91(2) of the Constitution Act, 1867, and, second, whether the provision was integrated in
such a way with the Combines Investigation Act as to be intra vires under s. 91(2).
The true test was a five-fold one.
1. First, the impugned legislation had to be part of a general regulatory scheme.


2. Second, the scheme had to be monitored by the continuing oversight of a regulatory
agency.
3. Third, the legislation had to be concerned with trade as a whole rather than with a
particular industry.
4. Fourth, the legislation had to be of a nature that the provinces jointly or severally were
incapable of enacting.
5. Fifth, the failure to include one or more provinces or localities in a legislative scheme
had to be such as would jeopardize the successful operation of the scheme in other parts of
Canada.
The Act constituted a well-integrated scheme of regulation designed to discourage forms of
commercial behaviour viewed as detrimental to Canada and its economy. The Act was clearly
concerned with trade in general, the provinces were not constitutionally capable of enacting
similar legislation and the failure to include one or more provinces would jeopardize the
successful operation of the Act. The result was that the Combines Investigation Act was
intra vires Parliament as constituting legislation in relation to general trade and commerce.
With respect to s. 31.1 itself, the provision constituted an integrated, well-conceived component of
the economic regulation strategy found in the Act. It simply served to reinforce other sanctions
found in the statute and was functionally related to the general objective of the legislation, and to
the structure and content of the scheme contained therein. The provision was not ultra vires
Parliament.

4. Double Aspect Theory For Provincial and Federal Laws that Overlap

(a) General
Determine main and dominant feature of legislation that is challenged.
This is the pith and substance of the legislation, the matter that is relation to
(Russell)
A law in relation to a valid head of power may incidentally affect other matters
without being rendered invalid. (aspect doctrine)
This pith and substance doctrine permits overlapping between federal and provincial
regulation.
Both federal and provincial regulation of liquor sales was upheld as valid, since both laws
were in relation to a valid head of power.
Policy: favours upholding laws.
Hodge v. The Queen (1883) JCPC considered provincial licensing scheme for taverns.
Argued this was exclusive federal matter [Russell, 1882 case upholding federal local option
scheme]; JCPC rejects argument: subjects which in one aspect fall within s.92 may in
another aspect and for another purpose fall within s.91.
Although logic of division of powers would suggest exclusivity restricts one jurisdiction from
passing laws in relation to something over which other jurisdiction had already passed laws,
the DAT contradicts this.
DAT permits extensive overlapping of legislation. Therefore, both federal and
provincial regulation of liquor sales is permissable, one in relation to criminal 91(27),
other in relation to property and civil rights 92(13).
Other areas that have double aspect are:
o dangerous driving, securities regulation [federally incorporated companies and
property and civil rights 92(13)], Sunday/Holiday observance, etc. see page 309.

(b) Bell Canada v. Quebec [1988] 1 S.C.R. 749 (Magnet, p. 312) Beetz J. (for the Court)
Facts Joanne Carrire-Laniel employed by Bell, pregnant, doesnt want to sit at VDT (some
technical station). She refused an offer of another position. Subsequently, she presented to her


superior a protective re-assignment certificate in accordance with the Act. Bell Canada challenged
the protective re-assignment application and sought by evocation to have the pertinent provisions
of the Act declared, inter alia, inapplicable to it as a federal undertaking. The Superior Court's
judgment allowing Bell's motion was affirmed by the Court of Appeal. This appeal raises two
constitutional questions: whether ss. 33, 36, 37 and 40 to 45 of the Act are constitutionally
applicable to Bell Canada; and, if so, are these sections inoperative in respect of Bell Canada in
that they are incompatible or conflicting with federal legislation in the same area applicable to Bell
Canada? Question is whether the provincial Act Respecting Occupational Health and Safety that
requires reassignment of a pregnant worker is constitutionally applicable to Bell Canada, a federal
undertaking [see CA 1867, 92(10)].
Analysis and Disposition The appeal was ordered dismissed. The first constitutional question
was answered in the negative and the answer to the second question was rendered unnecessary.
For federal undertakings, working conditions and labour relations were matters falling within the
exclusive jurisdiction of Parliament under s. 91(29) of the Constitution Act, 1867.
The Occupational Health and Safety Act, in pursuing its objective to eliminate dangers to the
health, safety and physical well-being of workers in the workplace, used means such as the right of
refusal, protective re-assignment, detailed regulations, inspection and remedial orders, that
entered directly and massively into the field of working conditions, labour relations, management
and operations of undertakings. The Act, as characterized, cannot be applied to the federal
undertakings mentioned in s. 91(29) and s. 92(10) (a), (b) and (c) of the Constitution Act,
1867, without regulating essential parts of those undertakings and without making the Act
deal with matters that fell within the exclusive authority of Parliament.
The double aspect theory could not be relied upon to support the applicability of the
provincial statute to federal undertakings. The two legislators had legislated for the same
purpose and in the same aspect. Yet, they did not have concurrent legislative jurisdiction in
the case at bar, but, mutually exclusive jurisdictions. The Act did encroach on fields that fell
within the exclusive jurisdiction of Parliament

5. Paramountcy

(a) General
Possibility of overlapping legislation raises issue of potential conflict between laws.
Paramountcy rules provide for manner in which such conflicts are resolved.
Only express reference to paramountcy rules in CA 1867 was in s.95, in relation to
immigration and agriculture. Courts extrapolated from s.95 and developed general rule of
federal paramountcy.
Where there is a conflict between valid federal and provincial laws, the federal takes
precedence. Provincial law is rendered inoperative to the extent of the inconsistency
(as opposed to invalid, or ultra vires).
Key issue is the definition of inconsistency; two possible tests:
Occupying Fieldwhere federal law deals with subject and no scope for provincial law
on same subject.
Express Contradictioninconsistency arises only where direct conflict btw federal and
provincial law. Of course, Provincialists favour this test (Martland, Dickson perhaps),
whereas Federalists favour former test.
Prof. Lederman (p. 310) comments on these two polar opposite views, quoting Cartwright
and Martland as the two opposing views, demonstrating that there is a huge sweep
establishing Federal paramountcy.





(b) Multiple Access v. McCutcheon [1982] (Magnet p. 314) Dickson J.
Facts Provincial Securities Act prohibits insider trading in securities traded on TSE. Federal
Canada Corporations Act (now Canadian Business Act) prohibits insider trading in shares
of federally-incorporated companies. Shareholders can bring actions under BOTH Acts.
Fed Act had a statute of limitations that would have prevented the action; longer statute of
limitations in Provincial legislation. Shareholders, naturally, brought action under Provincial
statute.
Analysis and Disposition Dickson J identifies two separate issues/stages to the analysis:
1. Look at validity of statutes by applying the PITH AND SUBSTANCE doctrine to
each statute. If one is found invalid, the other left to rule the day.
2. Determine whether there is an inconsistency between the statutes. (Only arises if
both statutes are found valid). If there is no inconsistency, dual compliance
theory allows them to co-exist. If there is, the federal will take precedence.
Dickson uses pith and substance and aspect doctrine to find that both statutes are valid.
Provincial law is in relation to trading in securities which is valid under 92(13).
Federal law is in relation to incorporation of federal companies
Dickson adopts express contradiction test for paramountcy purposes.
There is a conflict between laws only where compliance with one law
involves a breach of the other.
There must be actual conflict in operation as where one enactment says yes and the other
says no.
Why are we not violating federal law?
Brought under provincial law.
No violation of federal law because federal law doesnt deal with a limitation period for
provincial law.
Dual compliance theory. As long as you can comply with both laws courts will allow both
to operate.
The fact that there was a shorter period under the federal law did not mean one had to be
seen as inoperative, they can both be upheld since by complying with provincial law you
could still comply with the federal law.

(c) R. v. Chiasson, [1984] (NBCA) affirmed 1 S.C.R. 266 (Magnet I at 318) La Forest J.A.
Multiple Access approach followed: the laws say the same thing, therefore no particular
conflict.

(d) Gillespie v. Gillespie N.B.C.A. (1973) (Magnet I at 324) Hughes C.J.N.B.
Facts The petitioner appealed from an order dismissing her application under s. 10(b) of the
Divorce Act for an order of interim custody of the only child of the marriage of the parties to the
divorce action. Issue was whether the Divorce Act (federal) is paramount where there already
exists a valid court order made under a provincial statute in another province with respect to
custody.
Analysis and Disposition Direct operational conflict, resulting in provincial order being rendered
inoperative.

(e) No Conflict Distinguish between Criminal Law and Regulatory Law - Smith v. The
Queen, [1960] S.C.R. 776 (Magnet at 326) Martland J.
Facts Potential conflict btw Ontario Securities Act (which penalizes person who, required as he is
by the Act to furnish full/detailed info, is knowingly responsible for conveying false information) and
Criminal Code offence to make, circulate, or publish prospectus known to be false w/ intent to
induce persons to become shareholders.


Analysis and Disposition Section 63 of Securities Act is not criminal law within head 27 of
s. 91 of the British North America Act, 1867, as it is not a provision the pith and substance
of which is to prohibit an act with penal consequences. It is merely incidental to the main
purpose and aim of the enactment, which is to regulate the security business. The fact that both
provisions prohibit certain acts w/ penal consequences not constitute conflict. Some acts
might be punishable under both provisions; in this sense provisions might overlap. However, no
conflict in sense that compliance w/ one law involves breach of other. It would therefore
appear they can operate concurrently.

(e) No Conflict - Ross v. Reg. of Motor Vehicles, [1975] 1 S.C.R. 5 (Magnet I at 327) Pigeon J.
Facts Federal CC provided that one could be suspended from driving for certain period of time if
driving while impaired, whereas the Provincial law said that your license would be suspended for
three months.
Analysis and Disposition Since laws seem to deal with exactly same thing, multiplicity of
purposes (substituted for aspects) is not real (only nominal). The inconsistency does not lie in
the mere co-existence of two laws which are susceptible of simultaneous obedience. It
depends upon the intention of the paramount legislature to express by its enactment,
completely, exhaustively, or exclusively, what shall be the law governing the particular
conduct or matter to which its attention is directed.

If two laws not directly contradict, both may be found to be valid. Pigeon J. says he cant
drive at all b/c the Provincial law stipulates his license is suspended. The defendant can comply
with both by not driving at all. Parliament did not purport to state exhaustively the law respecting
motor driving licences, or the suspension or cancellation for driving offences. But, purpose of
Parliaments 1972 amendment effectively displaced by harsher Provincial law, rendering it
nuggatory. Permits policy conflict btw federal and provincial laws, at least in penal context, and
possibly undermines rule that federal legislation is paramount.

(f) Where Conflict is Found - Bank of Montreal v. Hall [1990] 1 S.C.R. 121, (Magnet p. 331)
LaForest J.
Facts Federal Bank Act permits banks to immediately seize goods pledged as security (facilitates
provision of loans). Provincial legislation requires provision of 21 days notice to debtor; failure to
provide required notice results in termination of security interest. Bank seized piece of machinery
from farmer without providing notice.
Analysis and Disposition Application of the provincial law would displace the legislative
intent of Parliament. (p.219) Focus of inquiry must be on broader question of whether
operation of provincial Act is compatible with federal legislative purpose. (p. 334).
Both statutes valid (application of PITH AND SUBSTANCE). PITH AND SUBSTANCE
analysis of fed Bank Act shows it to be valid b/c CA 1867 s.91(15) gives jurisdiction over
banking to Federal government; PITH AND SUBSTANCE part of banking, only incidentally
related to property.
Dual compliance theory may have analysed situation saying possible to comply w/ both
simply by giving notice.
LaForest finds application of the provincial law would defeat Parliaments policy
purpose, to facilitate access to capital by producers of primary resources and
manufacturers. An actual conflict in operation btw two statutes.
Parliament has enacted complete code therefore excluded any scope for Province.
Provincial law rendered inoperative to extent it conflicts with Bank Act, but still valid
and can be applied to everyone but Banks. If Parliament repealed s.178 of the Bank Act
Provincial law would then apply validly to banks as well.



(g) Where Conflict is Found - M and D Farm Ltd. v. Manitoba Agricultural Credit Corp. [1999]
2 S.C.R. 961 (Magnet I at 335) Binnie J.
Facts The Manitoba Agricultural Credit Corporation held a mortgage on the farm owned by M and
D Farm. When the mortgage went into arrears, Agricultural Credit gave notice under the federal
Farm Debt Review Act that it intended to commence proceedings to recover the outstanding
amounts. M and D obtained a stay under the Act. While the stay was in effect, Agricultural Credit
obtained leave to commence immediate foreclosure proceedings under the Family Farm Protection
Act (Man.). The motions judge who granted leave under the provincial statute was not aware of
the federal stay.
Analysis and Disposition CA 1867 s. 91(21) gives Federal government power over bankruptcy
and insolvency, therefore in PITH AND SUBSTANCE the law relates to Federal power; Provincial
law is valid because it deals with Property and civil rights, 92(13). The purpose of the federal Act
was to help farmers with the potential to be viable and remain in business. It prohibited the making
of a leave application directed to the result of depriving a farmer of land or other security. A leave
application under the provincial statute was so intimately connected with the proceedings in the
federal legislation that, under a purposive interpretation, the leave application was prohibited
during the currency of a federal stay. The order made under the provincial statute purportedly
authorized the very litigation that the federal stay prohibited. Express contradiction btw the
two statutes, therefore Federal law trumps the lower law with respect to areas under Federal
control.

Hypothetical
Provincial Public Accountancy Act states that only chartered accountants may perform audits.
Federal Elections Act says every candidate must appoint an auditor, defined as a member in
good standing of any association of professional accountants
See R. v. Lewis (Ont. C.A. 1997) held that the Provincial Public Accountancy Act has to be
read in light of the Federal Elections Act. Any accountant can perform election audit (in all
other audits, CAs only need apply).

Conclusion
SCC now has broader test of conflict: Provincial legislation cannot frustrate legislative
purposes of Parliament.
Dual compliance theory cannot be applied so as to undermine legislative intent.

6. Immunity and Reading Down

(a) General
Courts have developed doctrine of interjurisdictional immunity as exception to PITH
AND SUBSTANCE doctrine. Interjurisdictional immunity becomes relevant where a
thing, person, or undertaking specifically within jurisdiction exists a public work, an
Indian, a bus service on the National battlefields, and valid provincial legislation of
general application attempts to regulate the federal thing, person, or undertaking.
For example bus going around the National Battlefields displays a sign that says Govt of
Canada National Battlefields Commission Vive Le Canada and provincial law prohibits
the display of all advertising on moving vehicles.
doctrine is different from paramountcy in that even where there is no contradiction
or meeting of legislation, provincial legislation offers SIGNIFICANT OBSTRUCTION
TO THE FEDERAL SUBJECT, affects its status, or drains off essential federal
attributes which make them within federal jurisdiction
doctrine applies to prevent the provincial law of general application from applying to the
federal subject


court has attempted to state the doctrine by conceiving it as a principle that teach head of
federal power possesses an essential core which the provinces are not permitted to
regulate indirectly.
the legislation need only impair the federal undertaking provincial legislation may
significantly invade federal subjects if they aim directly at a vital part y- provincial legislation
may also significantly invade federal subjects if the legislation is of general application and
significantly impairs its operation
federal subjects is subject to provincial laws which incidentally affect it. Provincial laws can
even harm but they cannot significantly invade the protected constitutional sphere.
Indicia of categories of invasion:
1. Does it affect a vital part of the federal undertaking?
2. Does it affect the federal undertakings status?
3. Does it affect the essential capabilities of the federal undertaking?
4. Is the federal undertaking substantially modified by the provincial
legislation?
Doctrine has been applied to:
1. Federally-regulated undertakings/entities under 92(10)
2. Indians and lands reserved for Indians under 91(24)
3. The RCMP
4. Entities under exclusive Fed jurisdiction under POGG (aeronautics, nuclear
power) or enumerated heads of power in s.91 (banks, post office, military).
5. Federally incorporated corporations.

NOTE: s.92(10)s. 92 contains a list of provincial powers.
However, 92(10) contains exceptions for interprovincial works and undertakings.
Has been interpreted broadly to cover works and undertakings in inter-provincial transportation
and communication: rail, air, trucking, navigation, telephone, telecommunications,
broadcasting, cable TV.
Works/undertakings under 92(10) subject to federal jurisdiction by virtue 91(29),
therefore courts not applied PITH AND SUBSTANCE doctrine; entities can claim
immunity from application otherwise valid provincial law--read down.
Standard is sometimes given to be Significantly invading (see p.341):

(b) Comm. du Sal. Min. v. Bell Telephone Co. [1966] S.C.R. 767 (Bell No. 1) (Magnet I at 342
[in OPSEU])
Facts Bell Canada is subject to exclusive federal jurisdiction under 92(10)(a). Provincial minimum
wage law is found to be valid. Issue is whether it can be applied to Bell as a federal
undertaking.
Analysis and Disposition Martland says that all matters which are a vital part of the operation
of an interprovincial undertaking as a growing concern are [exclusively federal] see OPSEU
case, p. 342. Regulation of the field of employer and employees' relationships in an undertaking
such as that of the defendant is a "matter" coming within the class of subjects defined in s.
92(10)(a) of the B.N.A. Act and, consequently, is within the exclusive legislative jurisdiction of the
Parliament of Canada. Therefore, any provincial legislation in that field, whilst valid in respect of
employers not within exclusive federal legislative jurisdiction, cannot apply to employers who are
within that exclusive control.
Severely criticized by Hogg (p. 342), said created vacuum/gap in regulation. Argued
Paramountcy should apply. Provincial laws only overridden by federal laws. Theory is
inconsistent with the basic pith and substance doctrinethat a law in relation toa
provincial matter may validly affect a federal matter.
Canada Labour Code does now contain provision for a minimum wage law.



(c) OPSEU v. A.G. Ont. [1987] 2 S.C.R. 2 (p. 342) Dickson C.J.
Facts Provincial law regulates activities of provincial public servants during federal and provincial
elections.
Analysis and Disposition Dickson unprepared to extend doctrine of immunity beyond company
law and federal/inter-provincial undertakings [92(10)] cases. Favours use of Paramountcy.
Crt should be particularly cautious about invalidating a provincial law when the federal
government does not contest its validity or, as in this case, actually intervenes to support
it and has enacted legislation based on the same constitutional approach adopted by
Ontario.
If Parliament wanted defend against prohibitions of Ont. Pub. Serv. Act, could do so
[w/ Paramountcy].
What of a provincial law prohibiting display of signs on private property w/o municipal
authoritycould it be applied to display of federal election campaign signs? Based on
OPSEU, you might think that the immunity would not be applied, but in fact McKay (1965)
shows that immunity could be applied.
N.B. Interjurisdictional immunity is one way; grants immunity Fed. Undertaking; based on Fed
Paramountcy). But they are different: Paramountcy steps in when conflict btw a legitimate
Federal Law and a legitimate Provincial Law; Immunity does not depend on presence of
legitimate Federal Law.

(d) Natl Battlefields Commission v. C.T.C.U. Quebec, [1990] 2 S.C.R. 838, (Magnet I at 344),
Gonthier J.
Facts Federal Commission provided free guided sightseeing bus tours in national park which it
administered. Commission hired private carriers to provide that service. Carriers did not hold
transport permits under the provincial Transport Act. An application for declaratory judgment that
Federal Commission which offered public transport service in park had to do so through holder of a
provincial transport permit was dismissed but reversed on appeal.

Analysis and Disposition Federal ownership of land does not establish enclave in which
provincial law does not applyalternative would be very broad notion of immunity. Must
determine if the specific nature of the federal subject, that nature which makes it a
federal subject, is affected; specific nature affected if provincial statute touches on
vital or essential aspect of its establishment, management, or operation (Bell
cases) [p.346].
Nonetheless, Prov. permit system cannot be applied to service operated on behalf of
Battlefields Commission.
Doctrine applies most often w/ Fed. constituted agency; but, things named in CA 1867, s. 91
also included: Works, such as federal railways, things, such as land reserved for Indians,
and persons, such as Indians, who are within the special and exclusive jurisdiction of
Parliament, are still subject to provincial statutes that are general in their application, whether
municipal legislation, legislation on adoption, hunting or the distribution of family property,
provided however that the application of these provincial laws does not bear upon those
subjects in what makes them specifically of federal jurisdiction. P.346
Labour law usually Provincial, w/ regard to Fed. constituted agencies/s.91 areas fall under
Fed. Labour regime.
Provisions dealing w/ safety rarely affect vital or essential aspects of a service or
undertaking. [Construction Montcalm, requirement by a province that workers wear a
protective helmet on all construction sites].
Still, potential for a power vacuum (Dickson, p. 342 in OPSEU), BUT Monahan says we dont
want conflicting laws; Federal government supposed to have exclusive authority over certain


things, Provincial law should not apply. If inadequacy, Parliament should fix it. Monahan
thinks it is good to avoid confusion of operating under two regimes.

(e) Mississauga v. Greater Toronto Airports Authority, Ont. CA 2000 (Magnet I at 348)
Laskin J.A.
Facts Appeal by the city of Mississauga from a judgment dismissing the city's application for
compensation for costs associated with the redevelopment of Pearson Airport. The airport was
located on federal Crown land in Mississauga and was operated by the Greater Toronto Airport
Authority and Nav Canada. Airport Authority brought application that Ontario's building code
regime did not apply to it or to Pearson. Applications judge held that Ontario's building code
regime did not apply to the redevelopment because the federal government had exclusive
jurisdiction over aeronautics, and that the city was not entitled to apply the National Building Code.
Analysis and Disposition if a provincial law affects a valid or essential or integral part of a
federally regulated enterprise, then the otherwise valid provincial law does not apply
to that enterprise [from Bell, supra]
Aeronautics: Exempted 92(10)(c) interprovincial undertakings; 1952, (POGG) decided
aeronautics is federal jurisdiction
Ontarios building code regime would not merely affect Pearson Airport indirectly or
incidentally. The regime would control an aeronautics undertaking directly by applying the
Ont building code regime to the redevt of the airport.
Test of Irwin Toy (that did not apply in this case):
if a provincial law only indirectly or incidentally affects a federal undertaking, it will apply
unless it impairs, paralyzes or sterilizes the undertaking.

Hypothetical
Environmental assessment of publicly-funded construction projects required under provincial
law. Ont. Hydro proposes to shut down 5 nuclear plants (which falls under construction).
Nuclear power excl. fed. under POGG.
Does provincial law apply to shut-down? Whether operate or not goes to fundamental operation
of undertaking/the vital part. Ontario Hydro (1993) (p.458): Ontarios ownership does not determine
jurisdiction, doesnt extend provincial jurisdiction. Labour relations were an integral part of
Parliaments jurisdiction over national concern (POGG clause).

II. Peace, Order and Good Governemtn (POGG); CA 1867 Part VI, s. 91 Opening

1. Provision

(91) It shall be lawful for the Queen, by and with the Advice and Consent of the Senate
and House of Commons, to make laws for the Peace, Order, and good Government of
Canada, in relation to all Matters not coming within the Classes of Subjects by this Act
assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not
so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that
(notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of
Canada extends to all Matters coming within the Classes of Subjects next hereinafter
enumerated; that is to say,--

2. Essay by Ken Lysyk (Magnet I at 416):

by its terms the clause constitutes a residual category of federal law-making authority.
It carries the judicially assigned responsibility of providing a constitutional base for the so-
called emergency doctrine, the thrust of which is that Parliament may, to meet an


emergency, enact laws which in ordinary circumstances would be beyond its constitutional
reach
Introductory Clause: It shall be lawful for the R, by and with the advice and consent of
the Senate and House of Commons, to make laws for the peace, order and good
government in Canada, in relation to all matters not coming within the classes of subjects
by this act assigned exlusively to the legislatures of the provinces...
General grant of power to make laws for the peace, order and good government of Canada
in relation to all matters not coming with the classes of this act assigned exclusively to the
provincial legislatures.
sometimes referred to as the peace, order and good government clause
Declaratory Clause: For greater certainty, but not to restrict above, exclusive legislative
authority of Parliament extends to matters coming within classes of subjects enumerated.
[Enumerted classes s.91 for greater certainty.]
Deeming Clause: And any matter coming within any of the Classes of Subjects
enumerated in this section shall not be deemed to come within the class of matters (16
provincial classes) assigned in s.92
Notion that introductory clause could have been sufficient is seen to be bogus by Lysyk,
since some of the federally enumerated powers clearly needed to be enumerated [e.g.
Sable Island reference in 91(9)].
use of power ought to be strictly confined to such matters as are unquestionably of
Canadian interest and importance, and that great caution must be observed in
distinguishing between matters that are local and provincail and matters that are of
national concern

3. Parsons Methodology (see p.422) for Determining Validity:
1. Look first to s.92 enumerated. If not in s. 92: then must be federal, either under POGG or
s.91 enumerated.
2. If in s. 92, then the further question would arise, whether the subject of the Act does not also
fall within one of the enumerated classes of subjects in section 91 and so does not still belong
to the Dominion Parliament.
3. If also in s.91, have to resolve conflict by virtue of deeming clause, which says that even if one
thinks that a law in question is covered by s.92 jurisdiction, it is actually covered off by
whatever is enumerated in s.91, to the extent that the law addresses issues of national scope.
In 1882, the Parsons methodology was applied in Russell (1882)

(a) Russell v. R. (1882) JCPC (Magnet p.421) Sir Montague E. Smith
Facts
Charles Russell convicted under Canada Temperance Act, 1878 for unlawfully selling liquor
in Frederiction, N.B. Russell challenged the constitutional validity of CTA. CTA Preamble:
desirable to promote temperance in dominion should be uniform legislation in
provinces respecting traffic in intoxicating liquors.
Analysis and Disposition
Looks to s.92; says although it may be argued that (9), (13), (16) give jurisdiction, does not
in fact fall under these areas.
Laws of this nature designed for the promotion of public order, safety or morals, and which
subject those who contravene them to criminal procedure and punsishment, belong to the
subject of public wrongs rather than to that of civil rights. They are of a nature which fall
within the general authority of Parliament to make laws for the order and good government
of Canada, and have direct relation to criminal law...


Parliament deals with the subject as one of general concern to the Dominion, upon which
uniformity of legislation is desirable, and the Parliament alone can so deal with it. (in
arguing against the notion that temperance is a local concern falling withing s. 92(16)

(b) AG Ont v. AG Can, [1896] AC 348 (PC)
Facts
Canada Temperance Act gave to electors of every county or city the option of adopting or
declining the provisions of the second part of the Act which make it unlawful for any person to
expose or keep for sale, or sell any intoxicating liquor.
To bring the second part of the Act into operation order of Gov-Gen is required cannot be
granted until the question is put to a vote of electors in county
Governor-General in Council referred seven questions to the SCC, asking whether a
provincial legislature had jurisdiction to prohibit the sale, manufacture and importation of
intoxicating liquors in the province. The seventh question asked whether Ontario had jurisdiction
to enact s. 18 of the Liquor Licence Act.
Section 18 empowered township councils, following approval by municipal electors, to
prohibit the sale of liquor in taverns and shops.
Analysis and Disposition
Consider first whether the Parliament of Canada had jurisdiction to enact the Canada
Temperance Act; if so consider in the second place whether, after that Act became the
law of each province, there yet remained power with the legislature of Ontario to enact the
provisions of s. 18.
grant of authority to regulate traffic of alcohol stems from POGG clause
enactments in s. 91 appear to indicate that the exericise of legislative power by the
Parliament of Canada, in regard to all matters not enumerated in s. 91, ought to be strictly
confined to such matters as are unquestionably of Canadian importance, and ought not to
trench upon provincial legislation to any of the subjects enumerated in s. 92
if the Parliament of Canada has authority to make laws applicable to country in
relation to matters which in each province are substantially of local or private interest,
upon the assumption that these matters also concern the POGG of Canada, there is
hardly a subject enumerated in s. 92 upon which it might not legislate, to the exclusion
of the provincial legislatures.
Ontario Legislature had jurisdiction to enact s. 18 provided that its provisions are or
will become inoperative in any district of the province which has already adopted or
may subsequently adopt the second part of the Canada Temperance Act.

4. Emergency Doctrine

(a) Re Board of Commerce Act 1919 etc. [1922] JCPC (Magnet I at 463) Viscount Haldane
Facts
Parliament of Canada created Board of Commerce, to control the distribution and sale of
the necessities of life. Upon the Boards prohibiting profits on sales from an Ottawa clothier
of more than a certain percentage of costs, the constitutional validity of the Board was
attacked. The Board claimed that the controls were emergency measures.
Analysis and Disposition
already observed that circumstances conceivable, such as of war or famine,
when peace, order and good Government of Dominion might be imperiled, under
conditions so exceptional they require legislation of character in reality beyond
anything provided for by enumerated heads in either s.92 or s.91. (p. 464)
the law, however, was not one enacted to meet special conditions of wartime. It was
enacted after peace had been declared and is not confined to any temporary purpose


only under necessity in highly exceptional circumstances, such as cannot be assumed to
exist in the present case, that property of the inhabitants of the Provinces may be restricted
by the Parliament of Canada

(b) Fort Francis Pulp and Power etc. [1923] JCPC (Magnet I at 465) Viscount Haldane
Facts
By an Act of the Dominion Parliament, the Canadian War Measures Act, 1914, 5 Geo. V, c.
2, the control throughout Canada for the war period of the supply and sale of newsprint was
provided for. A later Act, 9 and 10 Geo. V, c. 63, provided for the extension of these controls for
the reconversion period. The appellant manufacturers contended that these Acts were ultra vires
the Dominion Parliament.
Analysis and Disposition
Fort Francis case upheld emergency paper control legislation, but it was clear that this was
exceptional, time-limited authority. Federal powers under POGG restricted to extremely narrow
grounds.
Js found themselves unable to say that the federal government had no good reason for
temporarily continuing the paper control after actual war had ceased, but while the effects of
war condtions might still be operative
national concern doctrine, in the absence of national emergency, could not give
Parliament jurisdiction with respect to matters which would otherwise fall within
provincial legislative concern [as explained in R. v. Crown Zellerbach where this case
was considered]

5. Matters Not Coming Within Section 92 National Concern Doctrine

(a) AG Ont. v. Canada Temperance (1946) (Magnet p. 427) JCPC
Facts
Appeal from a decision of the Ontario Court of Appeal upholding the validity of the Canada
Temperance Act on a reference to it by the Lieutenant-Governor of Ontario in Council.
Objective of Ontario was to get the Russell decision (1881) overturned (since L. Haldane in
Snider had criticized Russell, saying that it must have been the result of some kind of
intemperance emergency at that time; p. 429).
Analysis and Disposition
the ruling of the lower court was affirmed and the appeal dismissed. Legislation could be
upheld if deals with matter that goes beyond local or provincial concern and
must from its inherent nature be of concern to the Dominion as a whole. [p. 429].
Aeronautics and radio were given as examples.

(b) Aeronautics - Johannesson (1952) [p. 430]:
SCC relies on POGG to establish federal jurisdiction over aeronautics. Federal
government given jurisdiction over all airports, whether of a local or inter-provincial nature.

(c) NCC - Munro 1966 [p. 287, 430]
Development of NCC is inherently a matter of National Concern and therefore falls under
the POGG; uses POGG to uphold national capital commission legislation.

(d) Anti-Inflation Reference [1976] 2 S.C.R. 373 (Magnet I at 431 and at 469) Laskin
Facts
Federal government enacted legislation attempting to control prices, profits, and income.
Legislation drafted on an assumption of invoking the national concern doctrine (explicitly
referenced in the preamble). Inflation running at more than 10% annually. According to


preamble of legislation, inflation is a matter of serious national concern. Emergency
argued only as an alternative; evidence before Court strong on national concern but weak
on emergency.
AG of Canada supported the Act as being a law for the POGG of Canada in relation to
matters not coming within the classes of subjects assigned exclusively to the legislatures of
the provs
Contended that the Act concnerd a matter which went beyond local or private or provincial
concern and was of a nature which engaged vital national interests.
alternatively, AG argued that there was an economic crisis amounting to an emergency or
exceptional peril to economic stability sufficient to warrant federal intervention, or at least,
there was a reasonable apprehension of an impending one that justified intervention.
Analysis and Disposition
Must be a Rational basis for concluding there was an emergency. Legislation ruled as
a valid response to meet a temporary emergency. Majority of Court agrees with Laskin and
upholds law on basis of emergency. Ritchie concurs with Beetz on the issue of national
concern. majority endorses Beetz on national concern.
Laskin (p. 469ff):
Wisdom or success of legislation not a matter for courts. Even though expert testimony
had been tabled to show these forces were global, and that Government was acting beyond
its ability, Court says it is not up to Courts to decide whether legislation is good or not.
Court holds that Parliament had a Rational basis for establishing the law.
Laskin also makes reference to general trade and commerce power, even though not
argued (see p. 470)
Justice Beetz (p. 472ff)
Two distinct branches to POGG: national concern and emergency.
Emergency is extraordinary power and must be expressly invoked, i.e. federal
government has to acknowledge that they are acting in the case of an emergency,
not as was the case here, where Parliament was purporting to act on national
concern. Other indicia of national emergency not present, therefore Parliament cant
use the emergency power as basis for this legislation.
Emergency temporarily suspends division of powers; National Concern
permanently adds new matters to s. 91.
Beetz accepts Lederman theorywhen you are recognizing new matters of national
concern, they should be specific and limited. Subjects like environmental protection or
economic growth are too amorphous for purposes of s. 91/92. Would lead to the
disappearance of division of powers.
Subjects like aeronautics or national capital are sufficiently distinct, whereas inflation is
too amorphous to be a subject of national concern. Inflation is an aggregate of
serveral subjects falling under provincial jurisdiction. Underlying philosophy: balance
of power and incrementalism, recognition of powers in small, limited stages.
Parliament has accepted Beetz view in legislation. See Emergencies Act (1988), which
repeals War Measures Act. Government must precisely identify emergency.

(e) Anti-Terrorism Act
Can Anti-Terrorism Act be justified based on emergency branch of POGG power (as
opposed to national concern doctrine branch)? Well, terrorism requires urgent action
War on Terrorism potentially construed as an emergency. See if Act stipulates clearly
that is temporary, and if emergency it aims to address clearly defined.
In fact, Anti-terroism Act is permanent though certain measures are subject to a five-year
sunset clause, unless a resolution of the HoC votes to continue these powers. Government
intends these powers to be continued. Governments primary argument is actually that this
is Criminal law, which is clearly under the Federal government jurisdiction.


However, as Act also allows for the seizure of property/assets, some would say it infringes
on the Provinces jurisdiction over Property and Civil Rights. If legislation upheld under
Emergency doctrine, well the division of powers line is dissolved no problem, but if basis is
Criminal law, have to prove validity as good Criminal Law.

(f) R. v. Hauser [1979] 1 S.C.R. 984 (Magnet at 441), Pigeon J.
Facts
Accused charged with possession and moved for prohibition challenging the constitutional
validity of para. (b) of the definition of "Attorney General" in s. 2 of the Criminal Code.
The constitutional issue was framed in these terms: Is it within the competence of the
Parliament of Canada to enact legislation as in s. 2 of the Criminal Code to authorize the Attorney
General of Canada or his agent (1) to prefer indictments for an offence under the Narcotic Control
Act, (2) to have the conduct of proceedings instituted at the instance of the Government of Canada
in respect of a violation or conspiracy to violate any Act of the Parliament of Canada or regulations
made thereunder other than the Criminal Code?
Analysis and Disposition
Per Martland, Ritchie, Pigeon and Beetz JJ.: There can be no doubt as to the existence of
federal power to provide for the imposition of penalties for the violation of any federal legislation,
entirely apart from the authority over criminal law.
As to whether the Narcotic Control Act is to be classified as legislation enacted under the
criminal law power, the history of this legislation, as well as its general scheme, shows that it is
what the English title calls it: an act for the control of narcotic drugs.
The most important consideration for classifying the Narcotic Control Act as legislation
enacted under the general residual power is that this is essentially legislation adopted to
deal with a genuinely new problem which did not exist at the time of Confederation and
clearly cannot be put in the class of "Matters of a merely local or private nature". The
subject-matter of this legislation is thus properly to be dealt with on the same footing as such other
new developments as aviation (Re Aeronautics, [1932] A.C. 54) and radio communications (Re
Radio Communication, [1932] A.C. 304).
Per Spence J.: Trade in the drugs both legal and illicit constantly crosses national and
provincial boundaries. It was apparent that the regulation of the subject of narcotic drugs, the policy
controlling their distribution, the investigation of breaches of the statute or regulations and the
institution of prosecution must be carried out by federal officials.
Dickson J. [dissenting]
To revert to the Peace, Order, and good Government power to support the validity of the
NCA in the wake of this Courts decision in Re Anti-Inflation Act (i.e. Beetzs judgment), would
represent an unwarranted expansion of general power and run counter to opinions expressed
in that case with reference to the temperance cases.

6. National Concern and Emergency

(a) R.v. Crown Zellerbach [1988] 1 S.C.R. 401 (Magnet at 444) Le Dain J.
Facts
Federal Ocean Dumping Control Act requires permit before dumping substances into sea.
Sea (p. 444) defined as including internal waters other than fresh water. Logging
company dumping wood chips into sea water is within province. No evidence of harm to
navigation, or to fish (both federal powers).
Analysis and Disposition
Dumping in marine (i.e. salt) waters sufficiently distinct; matter of national concern. Main
principles (p. 448):


1. Two branches to POGG (Emergency and National Concern) are separate and distinct.
National emergency doctrine is the basis for what is necessarily legislation of a
temporary nature.
2. National Concern applies to both new matters which did not exist at confederation
and matters that existed as local matters in 1867 but have since become matters of
national concern.
3. For a matter to qualify as a matter of national concern 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;
4. Relevant to consider extra-provincial effects in the event that one or more
provinces failed to address the problem adequately. In other words, would such a
failure have adverse effects on other provinces?
Only that aspect of the problem that is beyond federal control would fall within federal
competence in such circumstances
where it would be possible to deal fully with the problem by co-operative action of two or more
legislatures, the national dimension concerns only the risk of non-co-operation, and justifies
only federal legislation addressed to that risk
provincial inability test provincial failure to deal effectively with the intra-provincial aspects
of the matter could have an adverse effect on extra-provincial interests. Utility lies in assisting
in the determination whether a matter has the requisite singleness or indivisibility from a
functional as well as a conceptual point of view.
[notes] an matter is a matter of national concern involves the consequence that the matter
falls within the exclusive and paramount power of Parliament and has an obvious impact on the
balance of Canadian federalism
it is crucial that one be able to specify precisely what it is over which the law purports to claim
jurisdiction
marine poluution, because of its predominantly extra-provincial as well as international
character and implications, is clearly a matter of concern to Canada as a whole.
La Forest [dissenting]
Environment too diffuse to be national concern; Ocean pollution no more precise due to many
causes of phenomenon. Some commentators were of opinion that La Forest was more
persuasive, and anticipated that Federal powers would be expanded as a result of this decision,
but that has not been the case.

(b) Ontario Hydro v. Ontario (Labour Relations Board) [1993] 3 S.C.R. 327 (Magnet I at 458)
Analysis and Disposition I
Interjurisdictional immunity doctrine applies to national concern (i.e. nuclear power is an
element of national concern). Atomic Energy is a matter of national concern. Labour
relations is a vital aspect of that matter; therefore labour relations in Ontario Hydros
nuclear plants are federal (Canada Labour Code applies) and not provincial matters (that
would fall under the Ontario Labour Relations Act).

(c) Reference Re Anti-Inflation Act, [1976] 2 SCR 373
Facts
See Above.
Analysis and Disposition
steps to determine validity of emergency legislation [notes]
1. Determine whether there was an emergency


2. Did the emergency require actions by the federal govt under the POGG clause or
its heads of power
in examination of step 1, court may use extrinsic information that need only go so far
as to persuade the Court that there is a rational basis for the legislations which it is
attributing to the head of power invoked in this case in support of its validity
the fact that there had been rising inflation at the time federal action as taken, that inflation is
regarded as a monetary phenomenon and that monetary policy is admittedly within exclusive
federal jurisdiction persuades me that the Parliament of Canada was entitled, in the circumstances
then prevailing... to act as it did from the springboard of its jurisdiction over monetary policy...

***Subsequent SCC cases have sidestepped issue of national concern.

(d) R v. Hydro-Quebec [1997] 3 S.C.R. 213 (Magnet I at 458)
Analysis and Disposition
Whether regulation of PCBs matter of national concern (p. 458). Majority found valid under
criminal law, therefore not necessary to justify it as a matter of national concern. However,
LaForest did say in passing that it could possibly be justified under national concern (page
458); Minority (Lamer and Iacobucci) held it could not be justified under national concern
branch of POGG, b/c environment not specific/distinctive enough.

(e) Anti-Terrorism Act Re-considered:
Could Anti-Terrorism Act be held up on the basis of national concern?. Does raise distinctive
concerns that are different from ordinary criminal law?
Act not really distinctive statutesimply pile of amendments to existing Federal legislation.
Some provisions that may be attacked on division of powers grounds (forfeiture of property,
related to Property and Civil Rights, though incidental doctrine could apply here to save these
provisions). More likely to see Charter challenges.

(f) Third Branch of POGG
Purely residual. Deals with gaps in division of powers.
Example: s.92(11): power to incorporate companies with provincial objects (nothing in 91
about incorporating companies with federal objects).
However, b/c 91 and 92 must encompass entire legislative authorities, one can read by
implication that specified power in 92(11) implies similar residual power on part of the Federal
government. Since provinces have power to incorporate companies with provincial objects,
federal government must have power to incorporate federal companies.


III. TRADE and COMMERCE

Federal, enumerated power 91(2). U.S. Congress given power regulate interstate commerce.
1867 apparent intention give Parliament broader power; wording suggests anything trade and
commerce can federally regulated.

1. Intra-provincial Trade and Commerce

(a) Citizens Ins. Co. v. Parsons; (1881), JCPC (Magnet I at 488) Sir Montague Smith
Facts
Ontario act prescribed standard conditions that had to be included in insurance K, to protect
insurer. The K in question did not contain those statutory uniform conditions.


Insured argued condition was implied as part of K, but Insurance Co. argued the Ontario
act was invalid, since trade and commerce a federal matter.
Analysis and Disposition
Section 91(2) is limited in scope to:
1. Interprovincial and international trade; and
2. General regulation of trade affecting the whole Dominion.
Specific references s.91 to banking, weights and measures, seem to indicate wider power
is limited in some way (since the framers of the constitution did not mention other areas of
trade and commerce)
Should not overlap w/ property and civil rights, and furthermore TRADE AND COMMERCE
power did not include power to regulate contracts of particular trades (see p. 489).

(b) Re: Parsons The Trade and Commerce Power
JCPC interpreted Parsons case strictly.
Parliament could regulate transactions or trade that crossed provincial borders.
However, Parliament could not regulate local or intraprovincial transactions. Even when
market was predominantly export (i.e. grain) Parliament could not regulate
comprehensively.
Categorical Approach: King v. Eastern Terminal Elevator (1925) (see. p. 477) illustrates
categorical approach. Provinces could not regulate goods crossing provincial borders, but
could regulate goods once in the province, even if the legislative scheme affected/referred to
matters outside the province; see Home Oil (1940) (p.489).

(c) Home Oil Distributors Ltd. v. A.G.B.C. [1940] S.C.R. 444 (Magnet I at 489)
Facts
Coal and Petroleum Products Control Board Act of BC provided for a Board to regulate and
control within the province coal and petroleum industries.
the sections declared to be ultra vires the provincial legislature by the trial judge concerned
the boards authority to price fix in various circumstances and in various ways.
Analysis and Disposition
The legislation was upheld. It was confined to regulating transactions that take place wholly
within the province, and are therefore within the sovereign powers granted to the provincial
legislature.
Appraoch determine the pith and substance of the legislation. Ask whether it pertains to
intra provincial trade. If it does, it will be held ultra vires federal jurisdiction.

Formalistic not purposive analysis.

(d) Problem with Formalistic Approach to TRADE AND COMMERCE
Formalistic/categorical approach meant federal power to regulate trade and commerce
extremely limited. Whenever federal government would try to set up schemes (Quotas,
Marketing Boards etc.), they were deemed unconstitutional, saying if any part of scheme
attaches itself to provincial jurisdiction, must be unconstitutional.
Why was this so? See case of Carnation v. Quebec (p. 370).
Federal government attempt to regulate only milk produced for export would probably be
good Constitutionally, as a matter of Constitutional law, but functionally impossible to
separate the export elements out from the local elements.
Extra-provincial producer would be subject to federal scheme that would set minimum prices
and controls, whereas local provincial producers would not be subject to this restriction and
would have an unfair advantage.



(e) Reference Re. Farm Products Marketing Act [1957] S.C.R. 198 (Magnet I at 491) Kerwin
C.J.
~First signs of a new approach.
Facts
Ont. FPM Act purports to regulate only intra-provincial trade, but also purports to set up a
marketing scheme.
Impugned provision: The purpose and intent of this Act is to provide for the control and
regulation in any or all respects of the marketing within the Province of farm products including the
prohibition of such marketing in whole or part.
Analysis and Disposition
Flow of trade concept (p. 493): The concept of trade and commerce, the regulation of
which is confided to Parliament, is entirely separate and distinct from the regulation
of mere sale and purchase agreements. Once an article enters into the flow of inter-
provincial or external trade, the subject-matter and all its attendant circumstances
cease to be a mere matter of local concern. Nonetheless, Court finds it intra vires.
Rand J. [concurring in the result, p. 494]
If in a trade activity, including manufacture or production, there is involved a matter of
extraprovincial interest or concern its regulation thereafter in the aspect of trade is by
that fact put beyond Provincial power.

Locke J. [concurring in the result, p. 497]
control and regulation in any or all respect of the marketing within the province including the
prohibition of such marketing in whole or in part... are considered within the powers of the
province.
Had potential to significantly expand scope of federal authority.
Klassen (1959 Manitoba Court of Appeal case): Necessarily incidental doctrine used to
analyze TRADE AND COMMERCE.

(f) Reference Re Agricultural Products Marketing Act (1978) (p. 499)
Facts
Federal Agricultural Products Marketing Act established a comprehensive supply-managed
marketing scheme which placed quotas on production in intra-provincial, inter-provincial
and international trade in eggs.
although the court upheld the general scheme, s. 2 ran into particular difficulty, as it
empowered the Governor-in-Council by order to authorize provincial boards to impose
expense and adjustment levies in both intra-provincial and interprovincail trade.
1971: SCC struck down Manitoba marketing scheme, saying it was attempt to regulate
interprovincial trade of eggs and poultry. Federal government and Provinces comlicated
joint scheme after numerous attempts by Federal government and Provinces to regulate
agricultural products had been ruled invalid. Depended on co-operative scheme: Single
board delegated power by Federal government and Provinces to establish quotas for
producers and to impose levies on producers to finance scheme. Both Federal and
Provincial (10) statues passed delegating authority to Federal Agency.
Analysis and Disposition
Court upholds scheme (with exception of one aspect of levies). Pigeon J. refers to
argument that Federal government cannot regulate the production or manufacture of a
product in a province even if it is destined for export (p. 502). Reversion to a formalistic
approach.
in the instant case, the provincial regulation is not aimed at controlling the extra-provincial
trade. It is only complementary to the regulations established under federal authority;
otherwise, it would mean that our Constitution kmakes in impossible by federal-provincial


cooperative action to arrive at any practical scheme for the orderly and efficient production
and marketing of a commodity... which requires regulation in both intraprovincial and
extraprovincial trade.
Since 1978, there have been no more cases dealing with Agricultural and Division of
powers.
Klassen (1959) raised idea of necessarily incidental doctrine, but not picked up in Agri
Prod. Mkting Act case. Monahan thinks it is unsatisfactory, because it forces the
governments to get together, negotiate, agree, etc.
SCC moved beyond from formalistic approach, and given broader scope to federal
jurisdiction over local matters.
Judicial review (via previous cases striking down various schemes) useful for setting
parameters for subsequent political discussions, encouraging compromise btw orders of
government.

3. Inter-provincial Trade and Commerce

(a) Caloil Inc. v. A.G. Can (No. 2) [1971] S.C.R. 543 (Magnet I at 508) Pigeon J.
Facts
National Energy Board regulations conferred upon the Board the power to regulate the
importation of oil into certain parts of Canada.
The Board refused applications for licences to import gasoline into certain areas of Ontario.
Appellant challenged the validity of the legislation and the decisions of the Board requiring
him to make the declaration [that gasoline imported would be consumed in the areas in
which is was imported].
Attempt to protect domestic market in western Canada.
Analysis and Disposition
Regulation is incidental to a valid scheme of importing.
Where goods are being imported, Parliament can regulate subsequent dealings in product
through import licensing.
Once goods have been imported into Canada, they ordinarily fall into the same category as
goods produced in Canada, and fall to be regulated by Parliament or the legislatures
depending on whether they find their way into paths leading to destinations in or outside the
province where they situate.
the regulations clearly show that the policy to be implemented by the impugned Act
is a control of imports to foster the devt and utilization of Canadian oil resources.
the interference with local trade restricted as it is to an imported commodity, is an integral
part of the control of imports in furtherance of an extraprovincial trade policy...
Parliament given power to regulate local transactions within province, where necessarily
incidental to valid scheme of import regulation. Perhaps should have been found unconstitutional
on basis of Manitoba Egg below.

(b) Macdonald v. Vapour Canada Ltd. [1977] 2 S.C.R. 134 (Magnet I at 510) Laskin C.J.
Facts
Federal Trade Marks Act s.7 provides civil remedies argued to be in relation to property and
civil rights [92(13)] or local matters [92(16)]
Federal government argument is in relation to TRADE AND COMMERCE [91(2)],
supportable as legislation arising from a treaty convention and thus falling within s. 92
POGG, and legislation in relation to criminal law [92(27)].
Analysis and Disposition


Parliament has, by statute , either overlaid or extended known civil causes of action,
cognizable in the provincial courts and reflecting issues falling within provincial legislative
competence. Cannot find any basis in federal power to sustain the unqualified validity of s. 7...
The relevant questions here are whether the liability imposed in connection with an
enterprise or activity is expressly within federal legislative power; or, if not, whether the liability is
dealt with in such manners as to bring it within the scope of some head of federal legislative power.
Since section 7(e) is not a trade mark provision, its inclusion in the Trade Marks Act does not
stamp it with validity...the Parliament of Canada can no more acquire legislative jurisdiction
by supplementing existing tort liability... than the provincial legislatures can acquire
jurisdiction by supplementing the federal criminal law.

(c) A.G. Manitoba v. Man. Egg and Poultry Assoc. [1971] S.C.R. 689 (Magnet I at 514)
Martland J.
Facts
Flipside to Cal Oil: Ont. farmers export eggs; Quebec farmers export chickens. Each
province sets up mkting scheme designed to limit products from other provinces. Manitoba
hurt by both schemes, refers phantom marketing scheme (identical to Quebecs scheme)
to CA and lost (Dickson J.A.; appointed SCC in 1973); appealed to SCC. Issue is whether
the Manitoba scheme is ultra vires the Manitoba legislature because it trespasses upon the
exclusive legislative authority of the Parliament of Canada to legislate in matters of trade
and commerce.
Analysis and Disposition
Plan now in issue not only affects interprovincial trade in eggs, but... it aims at the
regulation of such trade. It is designed to restrict or limit the free flow of trade between
provinces... Test is to look at the purpose of the regulations and who is affected by the
regulations if other provinces or actors are affected, then the regulations may fall under
trade and commerce federal jursidction.
if arguing on basis of legislative purpose, cite to legislative debate, government statements,
etc. to show real purpose of legislation.

(d) Burns Foods Ltd. v. A.G. Man. [1975] 1 S.C.R. 494 (Magnet I at 521) Pigeon J.
Facts
Appeal concerning injunction restraining packers from slaughtering hogs in Manitoba
unless purchased from the Manitoba Hog Producers Marketing Board. Argument Natural
Products Marketing Act is ultra vires MB. Question is whether, as an incident of its
authority over the local matter of hog slaughter by the Packers in Manitoba, province can
regulate buying of hogs from producers in another province.
Analysis and Disposition
SCC followed Manitoba Egg, struck down marketing scheme, though may have been
incidental to production of hogs in the province of Manitoba. If Parliament cannot regulate
local trade simply b/c it would be more efficient to regulate it together w/ extra-provincial
trade, a fortiori provincial legislature cannot regulate inter-provincial trade in a given product
b/c this appears desirable for effective control of intra-provincial trade.
Natural Resource Regulation
1970s saw federal-provincial conflict over natural resources. s.109 CA 1867 gave provinces
ownership of natural resources in each province. (p. 23 of Appendix I). With price increases for
oil in 1970s, issue was who would appropriate increased revenue.

(e) Can. Industrial Gas and Oil Ltd. v. Sask. (CIGOL) [1978] 2 S.C.R. 545 (Magnet I at
524/574), Martland J.
Facts


SK enacts tax on 100% of difference btw price at well-head and basic well-head price
(essentially diff. in price of oil after 1973). 98% of oil exported.
Tax on producers attempt to subsidize purchase of imported oil.
Legislation includes power for minister to fix price where oil disposed of at less than fmv.
Effect of legislation to set floor price for SK oil purchased for export by appropriation
of potential incremental value in inter-provincial/international markets, or to ensure
incremental value not appropriated by persons outside SK.
Analysis and Disposition
the regulations and orders enacted and made relating to the imposition of the mineral
income tax and the royalty surcharge were ultra vires of the Legislature. The tax was
essentially an export tax imposed upon oil production. The taxation provisions comprising
the mineral income tax and the royalty surcharge
Legislation also held to be regulation of TRADE AND COMMERCE; Martland tries to
distinguish case from Carnation. Focuses on fact that Minister may fix price for product.
The minister is empowered to determine the value of oil which is produced which will
govern the price at which the producer is compelled to sell while he produces and to fixt the
price receivable by Saskatchewan oil producers on their export sales of a commodity that
has almost no local marken in Saskatchewan.
The analysis seems weak, since this is an anti-avoidance measure.
Glenns point: Formalistic analysis; no discussion of underlying values, and fact that it is
arguably people of SK who own rights to resources. Court at that time was not into
discussing values, though today Court likely would.

Aftermath
Provinces outraged by CIGOL case and by Central Canada Potash (1979) case. SK enacts
retroactive direct tax scheme, which is not challenged (usually Government enact proactive
tax, not retroactive).
Provinces also press for constitutional amendment to overturn decisions and provincialize
appointments to SCC. PM Trudeau agrees to s. 92A (Non-Renewable Natural Resources,
Forestry Resources and Electrical Energy) in 1982, get Blakney (SK Premier) and Federal
NDP Broadbent on side w/ the Patriation proposals. SEE P. 530.
Section 92A: The indirect tax power in 92A(4) would have likely made the result in
CIGOL go the other way. 92A also gives: exclusive provincial power in relation to non-
renenwable natural resources in electricity sites; provinces given power to enact laws in
relation to export to other provinces; such laws are subject to federal laws; provinces given
power to enact indirect taxes in limited areas.
National Energy Program: Federal government levied extra high taxes on oil; when Mulroney
came in, in 1984, he repealed Trudeaus National Energy Program.
1970s SCC jurisprudence on interprovincial TRADE AND COMMERCE broadens Feds
power, narrows Provincial powers; still fairly formalistic (using PITH AND SUBSTANCE and
NI doctrines). Provinces narrowing power on local and private matters. Prior to this time,
entirely transaction-based theory, in that any local transaction was considered Provincial
concern.

3. General Trade and Commerce

Parsons (1881) had suggested general trade power as second branch of Trade and
Commerce; different from interprovincial trade power, would authorize regulation of local trade
if part of general regulation of trade. Laskin revived this power in Anti-Inflation (1976) and in
Vapour Canada (1977).



(a) Labatts Breweries of Can. Ltd. v. A.G. Can. [1980] 1 S.C.R. 91, (Magnet I at 531), Estey J.
Facts
Labatts challenged Food and Drug Act ss. 6 and 25 regulations regarding labelling food
products.
Analysis and Disposition
FDA labelling provisions ruled ultra vires of Parliament
as Parsons made clear, minute rules for regulating particular trades are not within the
trade and commerce competence. Control of production is held to be a prima facie local
matter of provincial jurisdiction (local undertaking under s.92(10) of CA 1867).
The impugned regulations were not concerned with the control and guidance of the flow of
articles of commerce through the distribution channels, but rather with the production and
local sale of the specified products of the brewing industry.
Nowhere are the impugned regulations concerned with the control or regulation of the
extra-provincial distribution of these products or their movement through any channels of
trade. t heir purpose is the regulation of the brewing process itself by means of a legal
recipe...
Laskin (dissent)
It appears to me that if Parliament can set up standards for required returns for statistic
purposes, it should be able to fix standards common to all manufacturers of foods, including
beer, drugs, cosmetics and therapeutic devices, at least to equalize competitive
advantages in the carrying on of businesses concerned with such products. I find some
reinforcement in this view of the scope of the federal trade and commerce power in s. 121
of CA 1982 which precludes interprovincial tariffs, marking Canada as a whole as an
economic union.
Result in case strongly criticized; Beer industry is national/international

(b) A.G. Can v. C.N. Transport [1983] 2 S.C.R. 206 (Magnet I at 536) Dickson J.
Facts
Considers Combines Investigaton Act (Competition Act) in relation to CN and CP who were
charged with unlawful conspiracy to prevent or lessen unduly competition.
Analysis and Disposition
Several indicia for valid exercise of General TRADE AND COMMERCE power:
1. National regulatory scheme
2. Oversight of a regulatory agency
3. Concern w/ trade in general rather than aspect of particular business (from
Laskins judgment in Vapour) AND
o i. Fact that provinces jointly or severally would be constitutionally incapable
of passing such an enactment and
o ii. Failure to include one or more provinces/localities would jeopardize
successful operation in other parts of the country. [not an exhaustive list]
court found that the provision was regulatory in nature. It then proceeded to determine
whether the scheme was valid under the second branch of s. 91(2). Test: does the
scheme meet one of the indicia of for valid exercise, above. If so, is it a valid scheme
under s. 91(2)? If not, rule it out of order with s. 91(2).
A scheme aimed at the regulation of competition is in my view an example of the genre of
legislation that could not practically or constitutionally be enacted by a provincial
government. Given the free flow of trade across provincial borders guaranteed by s. 121 of
the CA 1867, Canada is, for economic purposes, a single huge marketplace.

Note on Characteristics of Regulatory Scheme


the party being regulated has caused the need for regulation and receives some benefit
from the regulation
o in Ref. Re: Agricultural Products Marketing, it was the appellants economic
activities that caused chaos in the markets, and it was also the appellants who
benefited from the introduction of order into these markets
the challenged statute delineates certain required or prohibited conduct, creates an
investigatory procedure supervised by public regulators, and establishes remedial or punitive
mechanisms.
major elements of the regulatory scheme should be statutory
the scheme must be a national regulatory scheme

(c) General Motors of Canada Ltd. v. City National Leasing
Facts
The essential question is whether s.31.1 [which creates a civil cause of action, and is
therefore a prima facie regulation of property and civil rights] can be upheld as
constitutionally valid by virtue of its relationship with the Combines Investigation Act. two
issues: first, is the Act valid under the federal trade and commerce power, expressed in
s.91(2) of CA 1867; and second, is s.31.1 integrated with the Act in such a way that it too is
intra vires under s. 91(2).
Analysis and Disposition
Two aspects of case important: Necessarily Incidental doctrine and development of
general trade power; Dickson proposes three-step test:
1. Does impugned provision intrude on s.92?
2. Is it part of a valid regulatory scheme? (If so, assess w/ the other 2 Vapour
and 2 CN Transport factors)
3. Is impugned provision sufficiently integrated in valid scheme to be upheld?
(Is it necessarily incidental to the valid scheme?)
First issue evident that 31.1 is prima facie intrusion on provincial powers, but provision is
only a remedial one, and federal encroachment in this manner is not unprecedented.
Second issue Competition Act upheld as valid general trade. Five indicia of general trade
power applied to CIA: 1. well orchestrated scheme of economics regulation; 2. watchful gaze
of a regulatory agency; 3. regulates trade in general; 4 and 5. provinces could not regulate
competition effectively on their own.
Section 31.1 is functionally relatedsurvives a necessarily incidental test. Provision is
therefore valid

(d) General Trade Powers
Could general trade be used to implement international trade agreements? Consider 1994
agreement on International Trade. Used in 1998 to force Fed govt to withdraw legislation
banning interprovincial transport or gasoline additive MMT. Argued that scientific evidence
inconclusive

(e) International Trade Agreements
Canada has entered into FTA and NAFTA; Generally provide for national treatment (non-
discrimination) against American and Mexican goods; Treaties require implementing
legislation; Powers to enact such legislation follows division of powers.
Provincial laws regulating sale of alcoholic beverages cannot discriminate against US and
Mexican products
Could Federal Government rely on Caloil and necessarily incidental doctrine to justify
legislation implementing this obligation under treaty? (see sample problem in hand-out).



(f) BCSC v. Global Securities [2000] 1 S.C.R. 494, (Magnet I, p. 296) Iacobucci J. (see above)
Facts
BC Securities Act s.141.1(b): Exec. Director may make an order to assist in
administAnalysis and Dispositionn of securities of another jurisdiction. U.S. SEC
investigating Ms. Gadoy (unlawful trading in U.S.).
Analysis and Disposition
Iacobucci relies on Dicksons three-step analysis from GM Canada (1989)
1. Is PITH AND SUBSTANCE of impugned provision valid under ss.91/92? If prima facie
invalid go to stage 2.
2. Is the act as a whole valid? If yes, proceed to stage 3.
3. Is the impugned provision sufficiently integrated within the overall scheme such that it
can be upheld?
Answer to first stage valid under 92(13); PITH AND SUBSTANCE is to monitor those who
trade securities in BC (i.e. to know if people in BC are breaking laws). BC shares info, thereby
can operate own scheme more effectively, quid pro quo.

(g) The National Market and the Division of Powers
conceptual notion of the Canadian national market runs through various areas of
constitutional law - reasoning behind courts invalidation of provincial regulatory schemes
addition al provisions secure the national market s. 121 of the Constitution Act, 1867,
provides all articles for the Growth, Produce or Manufacture of any one of the Provinces
shall... be admitted free into each of the other provinces. Early cases read s. 121
narrowly.
free movement of people is guaranteed by s. 6(2) of the CCRF also read narrowly the
objective of s. 6 should not be interpreted in terms of a right to engage in any specific type
of economic activity. (Canadian Egg Marketing Agency v. Richardson). No similar
provisions for the free movement of capital in the Charter.
free movemebt of capital is secured by carous provisions of the CA 1867 Parliaments
exclusive authority over current coinage s. 91(14), banking, incorporation of banks and the
issue of paper money s. 91(15), savings banks s. 91(16), legal tender s. 91(20), and
authority or borrow money on the public credit s. 91(4)
Barriers to the free movement of goods have persisted in Canada

(h) K. Swinton Courting Our Way to Economic Integration: Judicial Review and the
Economic Union
efforts to strengthen the Canadian economic union have been an important part of the
public policy agenda since the late 1970s evidenced by the many attempts at
constitutional consensus reform made by federal and provincial governments.
federal, provincial and territorial negotiators reached agreement on the reduction of internal
trade barriers in July 1994
agreement contains lengthy set of commitments for the removal of trade barriers and
include a complex set of dispute settlement mechanisms, including a clear signal that the
obligations are not subject to judicial oversight
significant degree of confusion remains about what constitutes an unacceptable barrier
goal of barrier elimination would be based on an equal treatment model that would forbid
distrinctions on the basis of provincial residence. Sometimes described in literature as
negative integration- end to arbitrary and purposeful discrimination
at the same time, even those committed to maximum mobility would concede that there can
be some legitimate limitations on movement in our pursuit of equal treatment in the
economic union, there may be persuasive reasons for treating provincial residents and non-
residents differently in some circumstances


difficulty is in reaching consensus on which limitations are reasonable and which are
arbitrary
need to develop concept of acceptable barriers becomes even more compelling if the
definition of trade barriers also incorporates indirect burdens on mobility
whether on operates from community models or certain economic models, federalism is
valued because ti theoretically provides a better opportunity for govts at the
regional/provincial level to respond to citizens preferences, because of the greater
homogeneity that comes with smaller jurisdictions or because of the ensuing competition
between jurisdictions
decision makers must weigh a number of competing concerns that include not only the
value of freedom of movement in the Canadian common market and the justifications or
limiting mobility in such a market in general, but also the particular values of federalism
one must ask how integration will most feasible and legitimately result: through judicial
prohibitions of practice; unilateral federal action; intergovernmental cooperation and
negotiations; institutional reforms, or through formal constitutional challenge
Agreement on Internal Trade:
o objective is to promote an open, efficient and stable domestic market and to reduce
and eliminate, to the greatest extent possible, barriers to the free movement of
persons, goods, services, and investments within Canada.
o commitment to further processes, either to harmonize standards and regulations or
to increase frequency of recognition of another jurisdictions satandards
o agreement is enforced through consensual arbitration rather than a binding form of
adjudication is problematic for those wanting sterner obligations imposed on govts
o uncertain legal status is cause for concern principles of parliamentary sovereignty
dictate that the agreement cannot bind a future legislature since it is the result of
executive action
o is there an expanded role for the Supreme Court of Canada to play in the regulation
of internal trade barriers to supplement the agreement?
those seeking greater judicial activism see deficiencies in the present jurisprudence
(1) doctrine developed does not adequately oversee govt spending practices
(2) narrow definition of trade and commerce within s. 91(2) emphasizes trade in goods.
Allows the provinces wide scope to regulate land ownership and use and labour policy
since these have not been seen as elements of trade nor have they come within the scope
of the common market clause in s. 121.
(3) need for greater sensitivity to the spillover effects of provincial jurisdiction on those in
other jurisdictions and to their overall impact on the national economy with judges deciding
the magnitude of unacceptable burdens of commerce weighed against policy justifications
put forward by provincial govts. (burden of commerce doctrine)

ABORIGINAL PEOPLES AND THE CONSTITUTION

1. Introduction

(a) General
CA 1867 contained no guarantee for aboriginal rights. One of enumerated powers in s.91,
giving Federal government jurisdiction over Indians and lands reserved for Indians [91(24)]
Key Breakthrough was Calder case (1973) which recognized Aboriginal right to title at
common law.
CA 1982 included guarantee of aboriginal and treaty rights (s.35); has been interpreted
broadly by Courts. Federal or provincial laws that limit existing aboriginal rights must be


justified (according to SCC test). It is likely that the Courts will interpret s.35 as including an
inherent right to self-government. Treaty rights now protected (Marshall).

(b) Aboriginal Rights pre-1982
Prior to 1982, three sources of aboriginal rights.
(i) Royal Proclamation of 1763 (p.780)
King George III: issued to constitute governance in colonies Britain had in North America
(i.e. Canada, U.S. and Grenada), upon conclusion of seven-years war w/ France (which
ceded its lands in 1763 Treaty of Paris).
Stipulated lands not already settled to be reserved for use of aboriginal peoples. (see 780-
81)essential that the Aboriginal peoples not be disturbed, seeing as they were a military
force to be reckoned with in relation to the relatively small number of colonists. Crown
asserts sovereignty and then grants reserved lands to Indians.
Only crown (fed and provincial) could accept cession of lands from aboriginal peoples
through public meeting w/ aboriginal peoples concerned. No private individual could
purchase or take those lands. Crown poses itself btw Aboriginal peoples and settlers (i.e.
to prevent these frauds and abuses).
(ii) Common Law of Aboriginal Title:
Common law has recognized that there is a legal interest that arises in favour of Aboriginal
peoples, from their use and occupation of land prior to the arrival of Europeans etc. from
North America.
Courts have recognized this as source of legal right/legal title. Often characterized as an
inherent rightit does not depend on Crown grant. Common law right-Aboriginal Title first
recognized by JCPC St. Catherines Milling (1888): a personal and usufructory right in
lands which they had traditionally occupied (p. 797). Also, Calder (1973), where SCC
recognized Aboriginal title at common law.
(iii) Treaties with Crown:
Historic treaties covered most of Ontario and prairies; no treaties in B.C. and northern
Quebec (1975-modern QC treaty); modern treaties involve both Federal government and
Provs (more political practice than constitutional/legal necessity).
Most of treaties provided for surrender of Aboriginal lands for entirely insufficient, minimal
consideration.
Treaties would sometimes provide for continued aboriginal use.
HOWEVER, prior to 1982, treaty rights could be subjected to legislative extinguishment by
federal (but not provincial) statute (see below on distribution of legislative power in CA
1867). Crown committed to act in good faith, and not to dishonour the name of the Crown,
but ; obviously, this was a defect in the situation.
Contemporary jurisprudence interpreted treaties more generously. Monahan thinks
Marshall decision a departure, a rather generous treatment of treaty rights.
Treaty rights are now included in s. 35 of CA 1982; s. 35 also protects aboriginal rights or
common law rights as defined above; therefore, it changed the rule as it had been prior to
1982.

(c) Distribution of Legislative Power
CA 1867 gave Parliament exclusive legislative power over Indians and lands reserved for
Indians (see s. 91 (24)); Only Parliament could pass laws dealing directly with aboriginal
rights.
Provincial laws attempting to single out aboriginal peoples for particular regulation would be
invalid. Provincial laws of general application could incidentally affect aboriginal peoples
but could not override treaty rights. Under the PITH AND SUBSTANCE doctrine, a law
may incidentally affect someone outside the jurisdiction.


Doctrine of interjurisdictional immunity applies to Indians and lands reserved for Indians
(i.e. certain entities or persons specifically within Fed jurisdiction, have special status;
provincial laws cannot affect specifically federal/vital aspects of the entity/persons).
Provincial laws cannot affect aboriginal peoples in their essential aspects, i.e. status as
Aboriginal peoples, or law affecting rights granted to them (hunting, fishing, etc.) by the
Federal government and which are integral to their lives and status.

(d) Interjurisdictional Immunity and s. 88 of the Indian Act (Magnet I at 794)
Federal government decided to enact a specific section, to say that a provincial law of
general application can apply to Aboriginal peoples with the following qualifications:.
i. the law must be to be one of general application.
ii. the law will be subject to treaties, which will override provincial law in areas of conflict.
iii. the law will be subject to any other federal law, including the Indian Act, which will
prevail over provincial law
qualifications section makes provincial laws applicable to Indians but does not refer to
lands reserved for the Indians two distinct heads of power
s. 88 does not referentially incorporate provincial laws that affect the possession and use of
lands reserved for Indians. This is consistent with the fiduciary responsibility of the federal
R to protect lands.
Prof. Slattery summarizes all of the above principles in pp. 792-794

(e) Calder Case (1973)
Major breakthrough for aboriginal rights; 3 judges held that aboriginal title derived from
historic use and occupation of land. Inherent rights theory
Prompted Federal government to begin land claims negotiations.

(f) Constitution Act 1982: s.35(1)-(4) and s.25
35(1) recognizes and affirms existing aboriginal and treaty rights (see p. 780); word existing
added following November 1981 constitutional conference. Aboriginal peoples objected to word
existing; brought appeal to England; Denning waxed eloquently but ultimately said enactment of
CA 1982 was valid.
35(2) Defines aboriginal peoples of Canada as including the Indian, Inuit and Mtis peoples
of Canada.
35(3) Added 1983: For greater certainty, s.(1) treaty rights includes rights that now exist by
way of land claims agreements or may be so acquired. Future agreements constitutionally
protected (e.g. 1988 Nisgaa treaty).
35(4) Guarantees gender equality along lines of Charter s. 8?
Insulates aboriginal rights from Charter override (see p. 779).
Requires aboriginal participation in constitutional amendments (Elijah Harper, Meech Lake
Accord)

2. The Law of Aboriginal Title

(a) Guerin v. the Queen [1984] 2 S.C.R. 335, (Magnet I at 795), Dickson J.
Facts
Case began prior to 1982; trial decision not under Charter regime; based on c.l, not s. 35.
The Musqueam Indian Band surrendered valuable surplus reserve lands to the R for lease
to a golf club.
The terms obtained by the R were much less favourable than those presented to and
agreed upon by the Band council. Indian Affairs branch officials did not return to the Band
for its approval of the less favourable, revised terms, not would it disclose the terms to the


Band or an appraiser assessing the adequacy of the proposed rent. The Band was unable
to obtain a copy of the lease until March 1970.
Analysis and Disposition
Dickson reviews cases on aboriginal title, Calder, St. Catherines Milling
confirms Aboriginal title arises from historic use and occupation.
concludes that aboriginal interest in land is sui generis:
o 1. Can only be transferred to Crown
o 2. Upon surrender of title Crown under fiduciary obligation towards aboriginal
people.
The nature of Indian title and the framework of the statutory scheme places
upon the R an equitable obligation to deal with the land for the benefit of the
Indians. This obligation... is... a fiduciary duty.
the fiduciary relationship between the R and the Indians has its roots in the concept of
aboriginal, native or Indian title.
St. Catharines Milling
Indians had a personal and usufructary right qualification of or burden on the
radical or final title of the R. The R has a pure legal estate, but on which could be
qualified by a right of beneficial use that did not necessarily take the form of an
estate in land.
purpose of the surrender to the R requirement imposed on the Indians is to interpose
between the latter and prospective purchasers or lessees of their land to preven the
Indians from being exploited the jurisdiction of the courts to regulate the
relationship between the R and the Indians ahs the effect of transforming the Rs
obligation into a fiduciary one.
obligation is one where by statute, agreement or unilateral undertaking, one party has an
obligation to act for the benefit of another, and that obligation carries with it a discretionary
power, the party thus empowered becomes a fiduciary
Dickson finds oral representations about rent and manner of implementing increases,
though not formal surrender terms, part of Crowns fiduciary obligation. Lease not rendered
void, but rather damages paid by Crown/society generally for violation of fiduciary duty.

Limitations on Guerin
Lower courts have attempted to limit the scope of the fiduciary relationship between
the R and aboriginals. See p. 802-805, Vol. 1 for details.



3. Aboriginal Peoples and CA 1982

(a) Slattery, Making Sense of Aboriginal and Treaty Rights
(1) Doctrine of Aboriginal Rights
o body of common law that defines the constitutional links between aboriginal peoples
and the R and governs the interplay between indigenous systems of law, rights and
govt
o regulates relations between aboriginal communities and other communities that
make up Canad and determines the way in which their respective legal institutions
interact]
o operates uniformly in Canada
two main sources of doctrine
o (a) body of custom
generated through relationsh between indigenous peoples and the R in the
17
th
and 18
th
centuries
doctrine provides that the local customary laws of the indigenous peoples
would presumptively continue in force, except insofar as they were
unconscionable or incompatible with the Rs suzerainty
Guerin aboriginal title is a right derived from the indigenous peoples
hitsoric occupation of their lands, and that title predates and survives that
claims to soverignty made by European nations. See also the Royal
Proclamation.
Guerin statutes and other acts concering aboriginal peoples should be
read in the light of the common law of aboriginal rights.
o (b) basic principles of justice
influcence of this source has been enhanced by s. 35(1) of the CA, 1982,
which recognizes and affrims existing aborigianal and treaty rights
in ascertaining the existence of aboriginal rights under s. 35(1), the SC has
indicated that it will ensure the the inquiry is informed by basic
considerations of justice. It will not allow s. 35(1) to be interpreted in a
manner that simply perpetuates historical injustices visited on aboriginal
people in colonial times.
(2) Historic Treaties
o treaty encompasses all engagements made to aboriginal peoples by
representatives of the R or other persons in authority
o seems clear that historic treaties are governed by a unitque body of treaty law that
forms a branch of the doctrine of aboriginal rights
o body was generated by long-standing customary relations between aborigianl
peoples and the R and is informed by basic principles of justices which engage the
Rs honour
o treates were normally oral rather than written agreements influenced by Indian
concepts, procedures and ceremonies
o many historic treaties are best understood as constitutional agreements which
establish or reaffirm a fundamental relationship between the R and an aboriginal
people
o SCC has held that treaty temrs should be interpreted generously in a manner that is
favourable to the aborigianl parties and takes full account of their concenrs and
perspectives
o prior to 1982, treateis could be infringed by statute enacted by a competent
legislature
o post-1982,a court may strike down legislation inconsistent with treaty rights under s.
35(1) of the Constitution Act, 1982


o What is the rleationshop between treaty rights and aboriginal rights where a treaty
expressly recognises and guarantees aboriginal rights, it provides an extra layer of
security
o what does this layer of protection entail?
R forfeits power when it gurantees aborigianl rights in a treaty
Gives rise to particular fiduciary obligations to honour those undertakings -
obligations that represent concrete instances of the Rs more general
fidiciary duties regarding aboriginal peoples
(3) Classes of Aborignal Rights
o 1. Generic Rights v. Sepcific Rights
generic right is a right of a standarized character held by all aborignal groups
that satisfy certain criteria borad dimensions of the right are identical in all
groups where the right arises, even if certain concrete features of the right
may vary. Aboriginal title for exclusive use and occupation of land for
various purposes is a good example.
o Specific Rights:
(i) site specific rights rights that relate to a definite tract of land but do not
amount to aborignal title. Hunting without occupation of land is example.
(ii) floating rights rights that are not tied to any particular tract of land but
are land-based. Right to engage in certain land-related activities on any
lands to which members of the group have access, whether as aboriginal
people or as ordinary members of the public. Gathering of wild plants for
medicinal purposes is example.
(iii) cultural rights not linked to land at all. Group may have an aborignal
right t perform certain traditional dances tha tare not connected with any
particular location and do no involve using the land in a way that transcends
the normal effects of human activity.
o Test for Specific Right (Van der Peet)
(i) the practice, custom, or tradition must have been integral to the
culture of the aborignal group. Must have been a central and
signficant part of the culture, one of the things that made the society
what it was. Must have been defining and central attributes of the
society.
(ii) the practice, custom or tradition must have been integral to the
aborignal society in the period prior to European contact. Must have
pre-colonial continuity. Contact date is the time of R soverignty rather
than contact (Deglamuukw)
o Suggested alternative for Test of Specific Right
(i) historical evidence showing that the right was a recognised strand in the
fiduciary relationship established at the time when the R assumed govtal
resonsibility for the particular aborignal people in question
(ii) proof that the right is grounded in practices, customs or traditions that
were integral to the distrinctive culture of the specific aborignal group at the
transition date. If it can be proven that an activity was integral to the cutlrue
of the aborignal gorup, it is presume to have formed an incident in the
fiduciary burden assumed by the R, even in absence of specific historical
evidene to this effect.
o 2. Exclusive v. Non-Exclusive Rights
exclusive rights holders of the right are th only ones entitled to exexrcise
it, and they can maintain the right against the entire world. Title to a tract of
land is example.


non-exclusive rights do not give the group the sole benefit of the right or
the capacity to prevent otehrs from exercising corresponding rights. Right to
hold potlaches is non-exclusive, in that members of the general public can
also hold them. these rights could take precedence over the corresponding
right held by non-aborignals.
o Co-existence of Exclusive and Non-Exclusive Rights
exclusive right to pick barries in a certain area may overlap with the
exclusive right of anothers ownership of land
the rights co-exist and overlap as long as the occupier does not occupy in
a manner that precludes barry picking
exclusive right to fish in an area is met with another bands exclusive right to
fish. These rights co-exist, and one band cannot preclude another from
fishing.
o 3. Depelateable and Non-Delpletable Rights
depletable rights exercise tends to use up some portion of a finite
material resource
limited depletable rights built-in restrictions that help conserve the
material resoruce or to safeguard the rights of other user-groups
unlimited depleatable rights do not have built-in legal restrictions and so
in primciple may be exercised so as to exhaust the material resource in
question.
non-depletable rights such as the right to speak an aborignal language,
does not involve consumption of finite material.

(b) R. v. Sparrow [1990] 1 S.C.R. 1075 (Magnet I at 822) Dickson CJ and LaForest
Facts
First major case using s. 35, again involving a member of Musqueam Band.
Sparrow used a net larger than what was allowed by license granted under Federal
Fisheries Act.
He was charged by Fisheries official for acting in breach of his license.
He argues license is invalid b/c the requirements of the statute limits his right to fish.
He further argued that a historic right to fish arises from historic use and occupation of area
and fishing of his ancestors prior to arrival of Europeans.
Analysis and Disposition
Defines existing as meaning unextinguished, i.e. it is possible to extinguish a right that
existed prior to 1982, and if so extinguished s. 35 does not revive those rights. However,
Dickson says there is very strict test to determine if right extinguished prior to 1982. Even a
right regulated in minute detail not extinguished. Only total elimination of right constitutes
extinguishment. Must be clear and plain intention to extinguish.
Fishing right found not extinguished; therefore, the right was defined by historic use, not
contemporary regulation. AG argued existing = existing regime (regulatory etc.) in 1982
was okay, that no existing law could be attacked.
No ruling on commercial fishing given in the case (because Mr. Sparrow was fishing for
food!)
Words recognized and affirmed incorporate fiduciary obligation into s. 35. However, rights
are not absolute. Court proposes compromise. Proposes a justificatory scheme for s. 35
claims (see p. 830).
Question: Why didnt Court use s. 1? Balancing test of limitations in s. 1 of Charter says
that Charter guaranteed rights are subject to limitations; s. 35 is strictly speaking not
subject to limitations as per s. 1, b/c s. 34 of Charter says that provisions 1 34 are
included in Charter. Also, s. 25 stipulates that Charter cannot derogate from aboriginal


rights. (Charter rights protect individuals, whereas s. 35 and aboriginal rights are
community-based).
In the result, Sparrow has in fact established a FOUR-PART TEST:
o Is there an aboriginal right (protected under Constitution, s. 35)? Use Van der
Peet Test, supra
o Has that right been extinguished prior to 1982? (i.e. is it existing as per s. 35.
Onus on R to make demonstration of exstinguishment).
o Has there been a prima facie infringement of the right? (whether purpose/effect of
net length restriction infringes unnecessarily on interests protected by the fishing rt)
Onus on challenger to estab infringt
Does the regulatn impose undue hardship ? (signif limitatn on exercise of the
rt)
Does the regulatn deny rts-holders their preferred means of exercising that
rt?
o Can an infringement be justified?
court must be satisfied that the asserted legislative objective is compelling
and substantial
if a valid legislative objective is found, court must examine whether the
infringement unduly restricts the aboriginal right in question, and whether the
restriction cam be accommodated with the Rs special fiduciary relationship
with First Nations. [these two subtests were enunciated in Cote, infra]

(c) R. v. Van der Peet [1996] 2 S.C.R. 507 (Magnet I at 849) Lamer C.J.
Facts
Claimant w/ food-fishing license sells fish contrary to regulations. R agreed aboriginal
people had right to fish for food in area; issue is whether this right extends to commercial
sale. Key case defining aboriginal rights (1
st
stage Sparrow test).
Analysis and Disposition
Courts must take generous approach to s. 35. Aboriginal rights arise from historic
use and occupation (p.851: the simple fact: they were already here). Court must
take into account perspective of aboriginal peoples, and be aware that aboriginal rights
exist within the general legal system of Canada. Test for s. 35 right is practices, traditions
and customs central to the aboriginal societies that existed prior to contact
Activity must be integral to distinctive culture of the aboriginal group (p.853).
Must be something that made the society distinctive a defining feature. Relevant
timeframe is prior to contact with Europeans cultures.
Could be established through evidence of continuing significance of activity; evidentiary
rules should be relaxed. Case-by-case approach favoured. Practice must be distinctive
not distinct or unique.
Aboriginal title (claim to the land itself) is a subset of aboriginal rights (claims to use of land
or other rights).
Commercial fishing in this case not aboriginal right; effect of case is to limit potential
scope of aboriginal rights; and encourage litigation. More litigation has followed,
test various situations specific to diff. aboriginal groups.
Criticism of Van der Peet requirement practice must have existed prior to contact w/
Europeans (perhaps should be moment Crown asserted sovereignty); argued this is a
frozen rights approach (see dissent of LHD, p. 859).
N.B. Van der Peet does not apply in case of treaty right, b/c would be unfair to apply
high standard of distinctiveness to something agreed to in legally enforceable
agreement. Prior to 1982, Government could, by statute, limit/extinguish treaty rights; after
1982, subject to s. 35 and process of justification that is not Van der Peet test.



(d) R. v. Gladstone [1996] 2 S.C.R. 723
Facts
Accused convicted under s.61(1) of Fisheries Act with attempting to sell herring spawn on
kelp w/o licence required under s.20(3) of the Pacific Herring Fishery Regulations. Is PHFR
unconstitutional wrt s. 35.
Analysis and Disposition
Commercial fishing right established in this case, and the right had not been
extinguished; also found that the impugned legislation constituted a prima facie
infringement of the aboriginal right. The case then turned on the issue of
justification under the fourth branch of the Sparrow test.
Crown provided adequate justification for limitation on catch to 20% of herring stock caught
in particular year. However, evidence on allocation of 40,000 lbs to aboriginal people not
justified. New trial ordered on this issue.

(e) R. v. Delgamuukw [1997] 3 S.C.R. 1010 (Magnet I at 834) Lamer C.J.
Facts
Claim by Gitskan and Wetsuteten people to ownership of 58,000 square kilometres in BC
interior. NO treaty was ever concluded respecting land (although the groups had tried 100
years earlier in coming to Victoria).
Trial 374 days; judgment nearly 400 pages. Trial judge (McEachern) holds aboriginal
peoples had aboriginal rights to certain lands, however, extinguished by claim of British
sovereignty (1846-1858 when BC established).
Assertion of sovereignty inconsistent with rights/title to lands. Provincial government
changes (NDP) and changes counsel for appeal; takes new position that aboriginal rights
not extinguished, but that rights did not extend to land itself. BC Court of Appeal agrees and
states aboriginal peoples have non-exclusive rights to lands.
Analysis and Disposition
Lamer holds trial judge erred in approach to use of oral histories. Trial judge found
no exclusive right to land, relying in part on fact he gave no independent weight to
oral histories. Lamer says oral histories are to be given due weight. New trial
ordered; Lamer goes on, technically obiter, elaborates doctrine of aboriginal title.
re: Aboriginal Title
o rt to exclusive use & occupatn of the land
o rt to choose what uses land can be put, subject to ultimate limit that those uses cant
destroy ability of land to sustain future generatns of aborig peoples
o if title estabd, current uses not limd to tradit uses
Internal limitatn imposed by Crt
- uses of land may not be incompatible w/tradit uses
- strip mining not permitted on lands used as hunting grds
- this is strange reasoning; illustrates difficulty in crts going beyond what they have to decide;
when crts do that & its not necess, crt can go down a road that might cause probs
elsewhere
- Lamer saying a future generatn might want to use land in tradit way and that type of
developt wld prevent this
Test for proof of title:
1. land must have been occupied prior to assertion of sovereignty (diff from Van Der Peet)
2. if present occupatn is relied on, must be continuity w/pre-sov occupatn & present
3. occupatn at sov must have been exclusive; see below
Test for exclusivity (#3 of title test):
must rely on both perspective of common law and the aborig perspective, placing equal weight
on each


exclusivity is consis w/other grps being present on land (but one grp must have sought to exclude
others) or shared exclusivity (1 grp permits others to be on land)
Van der Peet test of centrality or defining feature applies, but requirement will be
automatically satisfied by exclusivity test. Provinces cannot extinguish aboriginal title; only
Federal government can (see p.847).
Infringements of Title: Adopts test from Gladstonebroad range of acceptable purposes for
infringements; general social and economic development a legitimate basis for infringement
(p.845). Must be an attempt to accommodate aboriginal interests including consultation and
payment of compensation (see p. 846).
Aftermath of Delgamuukw:
SCC encourages negotiation rather than litigation. Recent signing of Nisgaa Treaty resolves
land claims of Nisgaa people in BC. Also establishes self-government rights. Treaty subject
of an unsuccessful court challenge. New B.C. Liberal government has promised referendum
on land claims and self-government

(f) R. v. Adams, [1996] 2 SCR 101, Magnet 1 at 873
Facts
Mr. Adams, a Mohawk, was charged with fishing without a licence on Lake St. Francis,
Quebec, contrary to s. 4(1) of the Quebec Fishery Regulations. A licence was unavailable
under those regulations. A special licence issued under ministerial permit authorizing
native persons to fish for food may have been available under s. 5(9) but appellant did not
apply for such permission. The appellant was convicted at trial and the conviction was
upheld by the Que. Sup. Ct. and the QCOA.
Analysis and Disposition
Question of whether aboriginal rights are necessarily based in aboriginal title to land, so
that the fundamental claim that must be made in any aboriginal rights case is to aboriginal
title, or whether title is instead one subset of larger category of rights
while claims to title fall within the conceptual framework of rights, rights do not exist solely
where a claim to title has been made
where an ab group has shown that a practices, custom or tradition taking place on
the land was integral to the distinctive culture of that group then, even if they have
not shown that their occupation and use of the land was sufficient to support a claim
of title to the land, they will have demonstrated that they have an aboriginal right to
engage in that practice, custom or tradition.
do not need to demonstrate title
fishing for food in the St. Lawrence River and in Lake St. Francis was a significant part of
the life of the Mohawks from a time dating from at least 1603 and the arrival of Samuel de
Champlain into the area (1
st
question of Sparrow test answered right exists)
(2
nd
question of Sparrow test answered right was not extinguished)
under the regulatory scheme as it currently exists, the appellants exercise of his aboriginal
right to fish for food is exercisable only at the discretion of the Minister. This constitutes an
infringement of that right. (3
rd
question of Sparrow test answered right was infringed)
Scheme imposes undue hardship on the appellant and interferes with his preferred means of
exercising his rights (4
th
question of Sparrow answered right was unjustly infringed)

(g) R. v. Cote, [1996] 3 SCR 139, Magnet 1 at 879
Facts
Appellants were members of an expedition to teach traditional fishing methods. All were
convicted under Quebec regulation for failing to pay the required fee for motor vehicle
access. Zone was located within traditional hunting and fishing grounds. Also convicted for


fishing without a licence. Convictions challenged on basis that the appellants were
exercising an aboriginal right and a concurrent treaty right to fish
Analysis and Disposition
court had to address whether aboriginal fishing or other right must be necessarily incident
to a claim of aboriginal title in land, or whether an aboriginal right may exist independently
of a claim of title
court applied the Sparrow Test. In determination of question 1 of Sparrow, the Van der
Peet test was used.
court found that the R had failed to meet the test for justification. The scheme appeared to
be driven by the desire to facilitate sport fishing; without any evidence of a meaningful
economic dimension to that sport fishing, it could not be said to have been based on a
compelling and substantial objective.

4. Treaty Rights

Ca 1982 s.35 protects aboriginal and treaty rights.
Difference between aboriginal rights and treaty rights:
Aboriginal rights arise from historic use and occupation
Treaty rights arise through agreement or mutual consent.
Treaties can include existing treaties as well as new treaties (see s. 35(3) p780).
It is on this basis that rights under the Nisgaa Treaty are constitutionally protected.
Sparrow test can be used for treaties

(a) R. v. Badger, [1996] 1 S.C.R. 771 (Magnet I at 890) Cory J.
Facts
Badger, Kiyawasew and Ominayak charged w/ hunting violations of Wildlife Act. Status
under Treaty No. 8 [(1899), modified by Natural Resources Transfer Agreement 1930],
hunting for food on lands falling in tracts surrendered to Canada by treaty.
Analysis and Disposition
Cory J. summarizes interpretive principles applicable to treaties (p. 894-95):
1. Words in written doc must not be interpreted technically but, in sense would have
been understood by aboriginal people
2. The honour of the R is always at stake when dealing with Indian people.
Interpretations of treaties and statutory provisions which have an impact upon
treaty or aboriginal rights must be approached in a manner which maintains the
integrity of the R. It is always assumed that the R intends to fulfill its promises.
3. Ambiguities in wording resolved in favour of aboriginal peoples; corollary: limits
narrowly construed.
Treaty 8 recognized right to hunt, subject to regulations and subject to lands taken up for
other purposes (p.891). CA 1930 (NRTA): Transferred natural resources from Canada to
provinces (AB, SK, MB). Para. 12 of NRTA modified right to hunt granted in Treaty 8.
How can treaty be modified by agreement btw two other parties? Prior 1982, treaty rights
not constitutionally protected, could be modified by legislation. Basis of NRTA modifying
agreement were British and Canadian (and Provincial) statutes. Court says there had to
have been clear intention to modify agreement; para. 12 satisfies requirement.
Treaty 8 hunting right for commercial use narrowed, but expanded/strengthened right for
hunting for food. Court interprets s. 12 as allowing hunting on private lands that do not
appear to be occupied. Where lands privately owned, must be determined on case-
by-case basis if privately owned land is unoccupied and not put to visible use,
Indians, pursuant to Treaty No. 8 will have a right of access in order to hunt for food.


Badger and Kiyawasew on lands visibly in use, but Ominayak on an uncleared muskege
with no fences or signs.
Application of the Sparrow test (for Ominayak):
1. Is there a right? Yes (see above).
2. Is it existing or has it been extinguished? (Food right strengthened, see above).
3. Has there been prima facie infringment? Court finds can be no limitation on method, timing
and extent of Indian hunting under Treaty; licensing scheme has no provision for food-
hunting licenses: prima facie infringement.
4. Justification? No evidence submitted on this question, therefore orders new trial on issue
of justification alone.

Significance of Badger
1. Oral agreement is the agreement reached, and the treaty is the writing down of the agreement.
2. Sparrow framework applies to treaty rights as well as aboriginal rights.

(b) R. v. Marshall [1999] 3 S.C.R. 456 (Magnet I at 902) Binnie J.
Facts
Donald Marshall Jr. charged with offences under federal fisher regulations. Caught 463 lbs
of eel w/o a license, and sold them for about $800.00; did not rely on c.l. aboriginal right to
fish, but rather on treaty right.
Treaty of Friendship signed March, 1760 btw British Governor and Mikmaq. Included
truckhouse clause. Negative covenant: we wont trade with anyone else (i.e. the French);
only trade with truckhouses est. by Brits.
Minutes of meeting at time of treaty: Indians assumed the treaty protected the securing of
necessaries. Marshalls theory: If there is a right to sell fish to the truckhouses, there must
be a right to fish. Officious bystander test Here, if the ubiquitous officious bystander had
said, this talk about truckhouses is all very well, but if the Mikmaq are to make these
promises, will they have the right to hunt and fish to catch something to trade at the
truckhouses?, the answer would have to be, having regard to the honour of the R, of
course.
Analysis and Disposition
Binnie J. holds that treaty must be interpreted in light of context, including the Feb. 11
minutes/record of negotiations. These minutes of meetings btw parties had indicated that
Mikmaq requested the truckhouses.
Written terms did not record entire agreement; look to intention of parties and
honour of the Crown as context.
Binnie implies term granting Mikmaq right to hunt/fish to trade at truckhouses. Right to
sustain necessaries Binnie defines as moderate livelihood see para. 59 where he
references Van der Peet. Marshall acquitted.

(c) Marshall v. The Queen (Marshall II) [1999] 3 S.C.R. 533 (Magnet at 909)The Court
Facts
Motion brought for a rehearing by one of intervenors to define scope of rights (to what
resources they could be applied? mining? logging?). Parties themselves do not seek rehearing.
did these rts apply to mining, logging ? Also aborig lobster fishers (dont need license) clashing
w/non-aborig ones at Burnt Church. Re-hearing denied but crt issues detailed reasons w/no
evidence. Appropriate? No new evidence, what justifies decision?
Analysis and Disposition
Court emphasizes the narrowness of original reasons
o Government has the power to regulate the right.
o Right is only infringed if regulation denies appellant right to fish for necessaries.


o Government may regulate through licensing/other forms of regulation; schemes not
necessarily infringement of right.
o Paramount concern is conservation (of course there is a fishery, so conservation not
exactly ultimate priority).
o Right does not extend to other resources, depends on case-by-case interpretation
(difficult to see how you can fish for eel, not lobster?). Right limited to
hunting/gathering activities similar to those engaged in at time of treaty.

(d) Significance of Marshall Decisions
Second decision seems to have calmed the waters, so to speak.
Implied terms: If followed in later cases, Marshall implied term could lead significant
expansion of treaty rights.
If minutes/negotiations refer to promises not incorporated in written terms, Courts may imply
terms into agreement.
Issues: 1. Honour of Crown; and 2. Evidentiary difficulty in proving intentions of parties at the
time of the treaty.

(e) Hypothetical
Treaty 8 negotiations, Government commissioners reported assurance made that Treaty not
open way imposition of tax.
However, written terms made no reference to taxation. In Badger, Court felt the treaty survived
the 1930 NRTA.
Under the Indian Act, tax exemption for income earned by status Indians on a reserve.
How would you argue the case for a broader tax exemption?
1. Look back to situation/statements arising from original negotiations.
2. Badger and Marshall: oral agreement that is treaty after all; look to minutes of meetings.
Commissioners Report suggested assurances part of original negotiations. Suggests
Indian Act could not apply.
3. Government Argument: Try to justify lack of an exemption as being in keeping with fair
treatment of all (i.e. refusing an exemption/benefit for some that comes at
expense/detriment of others). Perhaps subsequent versions of Indian Act part of treaty;
perhaps could try to connect it to argument that potential right only in conjunction with
traditional income earning activities of time, or reconciliation better served treating people
on equal basis.
Benoit v. Canada (Fed. Court., March 8, 2002): A.G. argued had not been negotiation on
this point. Court found that the Indians of Treaty 8 were tax exempt.

(f) How to argue for an implied term of something:
- estab aborig rt
- find evidence of an oral promise that = pt of treaty itself
- as in Badger and Marshall, look to minutes of discussions and written treaty (= reflectn of
agreet b/c of lang barriers, etc.)
- apply Sparrow to show rt hasnt been extingd and that its unjustifiable to infringe upon it

(g) How to counter an argt for an implied term:
- disting Badger and Marshall somehow
- cld arg some justificatn for limg the rt (e.g. consis w/honour of Crown)
- or cld arg no consensus (even though aborigs might have thought that this was what was
being promised)

5. Self-Government



Right to govern and regulate activities or practices, as opposed simply to right to engage in
activities or practices.
1987 and again in 1992, proposals to amend s. 35 to included explicit recognition of self-
government as protected aboriginal right. Charlottetown Accord used the term inherent
right arising form historic occupation and use.
However, has been argued that s. 35 already includes protection for self-government, on
basis that this is part of the inherent rights of aboriginal peoples arising from their historic
use and occupation of land.
SCC, so far avoided direct comment on whether self-government included in s. 35. Not fully
argued Delgamuukw at SCC (BCCA ruled against self-govt). R. v. Pamajewon (1996),
SCC rejected claim that regulation of high stakes gaming an aboriginal was a right under s.
35: didnt meet Van der Peet test for distinctiveness/integral.
In Van der Peet, SCC refers to fact that aboriginal peoples were living and participating in
distinctive cultures (p. 851). Implies some form of communal right (i.e. a right to regulate
or legislate).
Based on case trends, likely recognition of form of self-government, subject to Sparrow.
But, Van der Peet test require case-by-case analysis to determine if regulation of matter at
issue is integral to culture of aboriginal group. This integral hurdle significant for self-
government claims to overcome.
If self-government recognized, have to consider relationship btw aboriginal and non-
aboriginal laws: difficult task.
Self Government Agreements: Possible to enter into self-government agreements;
preferable to judicial interpretation as provides greater certainty. Delgamuukw indicated
courts preference for negotiated solution. Self-government rights in Nisgaa Treaty were
upheld as valid by BCSC.
Rights entrenched under s. 35, which allows future agreements/rights to be
consitutionalized. See also 35(4) for some sort of extra wrinkle. Does the Charter apply to
the exercise of self-government? Interesting future ahead.

Section 25 of the Charter of Rights and Freedoms
provides that the Charter is not to be construed so as to abrogate or derogate from any
aboriginal, treaty or other rights or freedoms that pertain to the aboriginals of Canada.
main purpose is to make clear that the prohibition of racial discrimination in s. 15 of the
Charter is not to be interpreted as abrogating aboriginal treaty rights that are possessed by
a class of people defined by culture or race
designed to guard against diminishing aboriginal and treaty rights in situations where non-
aboriginal peoples might challenge the special status and rights of aboriginal peoples as
contrary to equality guarantees
unlikely that a court would regard s. 25 as providing a blanket immunity from the Charter to
aboriginal govts
application of Charter s. 25 should not mean that Aboriginal govts must follow the policies
and emulate the style of govt of the federal and provincial govts
allows an Aboriginal govt to design programs and laws which are different, for legitimate
cultural reasons, and have these sections considered as relevant should such differences
invite judicial review under the Charter
Corbiere v. Canada (Minister of Indian and Northern Affairs)
s. 25 is triggered when s. 35 Aboriginal or treaty rights are in question, or when the
relief requested under a Charter challenge would abrogate or derogate from other
rights or freedoms that pertain to the aboriginal peoples of Canada.
latter phrase indicates that the rights included in s.25 are borader than those in s. 35
and may include statutory rights


however, the fact that legislation relates to aboriginal people cannot along bring it
within the scope of the other rights and freedoms included in s. 25.

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

I. Introduction to the Charter

CA 1867 did not contain general guarantees of individual rights; Canadian Bill of Rights
(1960) enacted as a federal statute, but interpreted very narrowly; only about 35 cases that
made it to the SCC over 22 years.
prior to the enactment of the Charter, Canadian court encountered legislation that imposed
disabilities on different groups cases seemed strange to the modern legal imagination,
conditioned as it was by concepts of non-discrimination and equality
Implied Bill of Rights
Reference Re: Alberta Statutes (1938), Switzman v. Elbling (1957)
and Sumur v. The City of Quebec (1953) impact of these cases
suggested that there are certain civil liberties implicit in Canadas
constitution a package of freedoms somewhat similar to that of the later
Canadian Bill of Rights and the CCRF
attention was drawn to the BNA Act 1867, which provided that the
Dominion would have a Constitution similar in principle to that of the UK
view was taken that those words meant that there was to be a
parliamentary system of govt, acting under the influence of public
opinion, free press and free speech
legislation which destroyed the citizens ability to debate, assemble, or
associate freely would be contrary to Canadas democratic parliamentary
system of Canada
Canada (AG) v. City of Montreal (1978) curtailed any application of
unwritten constitutional norms by stating that the rights were not above
the reach of competent legislation
bill of rights theory was revisited and upheld in successive cases
Bill of Rights
is only relevant to federal jurisdiction; federal statute could be amended by
ordinary legislation, and additionally as a statute it was provided with a
precedence provision but did not have force of trump over other laws,
practically speaking. In 22 years, SCC only used Bill of Rights on one occasion
to render law inoperative.
quasi-constitutional in nature provided for special rules of statutory
interpretation to govern conflicts between itself and ordinary statutues an
ordinary statute shall no be construed or applied so as to create conflict with the
Canadian Bill of Rights. If the statute can be constructed in two ways, one of
which does not conflict with the Bill, the Bill directs the courts to adopt that latter
construction.
Provincial Human Rights Codes (Ont. 1947); ordinary statutes, only apply to
provincial laws, not federal laws.
Enactment of Charter controversialargued it would shift power from elected politicians to
unelected judges.
Initially argued Charter would prevent government from regulating business corporations,
redistributing wealth, or protecting the environment. More recently, argued that Charter
allows guilty criminals to go free, or to advance politically unpopular interests of minority
groups.



1. Overview of the Charter (Magnet II at 6-7)

Guarantee of & limitatns on rts: s.1 can be limd if limits are reas, prescribed by law,
demonstrably justified in free & democ society; certain rts immune from limitatns under s.1

Enforcement : s.24(1) remedies for rts infringts, s.24(2) exclusion of evidence as remedy fori
illegally obtained evidence
Application : s.32(1) Charter applies to Parl, prov legislatures and fed & prov govs
Legislative Override: s.33 can only be used for legislatn which violates ss.2 and 7-15; rarely
used, never been used by fed gov

Interpretive Provisns:
s.16(3): legis extension of lang rts beyond constitu basis
s.26: upholds prev. accrued rts
s.27: Charter must be interpreted in manner consis w/Cdaas multicult heritage
s.28: Charter equally applicable to males & females

Non-derogation/non-abrogation clauses:
s.21: protects constitu official lang rts
s.22: protects heritage lang rts
s.25: protects aborig rts (see above)
s.29: protects constitu rts of denom or sep schools
s. 31: affirms jurisdic boundaries estabd prior to 1982

SPECIFIC RTS: SS.2-15
Fundal Freedoms (s.2): conscience, relig, expression, press, assembly, assocn
Democ rts (ss.3-5): voting rts, min. # sittings of Parl & legislatures, etc.
Legal rts (ss.7-14): rt to be protected from unreas search and seizure, rt to be presumed
innocent, rt to be tried w/in a reas time
Equality rts (s.15(1)): protects from discrimn, s.15(2) exempts affirmative actions programs
from s.15(1)
Mobility rts (s.6): rt to enter & leave Cda, to move freely w/in it, etc. s.6(3) allows certain limits
on these rts
Lang rts (ss.16-22): Fr & Eng official langs, access when dealing w/fed gov, etc.
Minority Lang Educational Rts (s.23): Eng & Fr minorities guaranteed access to schooling in
own lang in certain circumstances

2. The SCC and the Charter
(Kelly article pp. 8ff): slightly less than one-half of SCC Charter cases involve statutes
majority involve challenges to government actions, i.e. police activities. Could challenge
actions without challenging statute.
Higher success rate for Charter claims in challenges to government actions than in
challenges to statutes; not surprising, because Court not being asked to overturn decision
of democratically elected legislature.
2/3 of SCC Charter cases involve interpretation of legal rights, ss. 7-14.
SCC unanimous in 70% of its Charter decisions (of course, in our casebook, we read the
30%). U.S. Supreme Court only unanimous approx. 40% of time. SCC operates under
high degree of consensus. Wilson J., in her new biography, says there is lot of horse-
trading to achieve unanimity. Monahan thinks SCC thereby more effective than U.S.S.C.;
but, diversity of views (never mind fact that SCC is not diverse) always good for long term.



3. Interpretation Theories

Interpretivism: role of crts in reviewing legislatn shldnt go beyond interpretatn of txt
Non-interpretivism: txt so vague that crts must apply stds not found in text (e.g. moral
values)
Progressive approach: framers expected Constitu wld be shaped by jud interpretatn, that
it wld evolve over time (wds dont have to be frozen); this approach can be just as unfaithful
to Constitu txt as noninterpretive approach; but is more faithful than interpretivism, so shld
be adopted
Edwards v. Cda 1929: (Persons case; whether women can be apptd to Senate) evolution
of our understding indicates that we shld interpret 1867 CA as including women as eligible
for appt to Senate = progressive interpretatn
Hogg (pp. 108-112) reviews debate in U.S. on interpretivism vs. non-interpretivism (whether
judges bound by text).
Hogg in his eminently sensible approach, on p. 112: Interpretation of the Constitution
has to be based on the text, but the text is not going to resolve all our contemporary
problemsyou have to look to the larger purposes, of the particular provision and
the document as a whole, and Courts should adopt a progressive interpretation, so
that interpretation is not frozen in time. (c.f. Originalist approach to framers intentions).
Framers expected Constitution would be interpreted and shaped over time. E.g.: Edwards
v. Canada (Persons Case); although not anticipated in 1867, evolution of our
understanding should reflect progress in time.
1982: Real debate about Charter and use of judicial review. Ultimate outcome of that
debate was to adopt Charter, because people thought it was a good thing on the whole that
government power be limited.
Monahan thinks it is particularly appropriate in Canada, because we dont have the same
kinds of checks and balances on executive power; stronger case for this in Canada than
even in the U.S.

II. Application of the Charter: s. 32

Provisions of Charter speak in general terms (every individual is equal before and
under the law.); however, Charter values are not universally applicablei.e. to purely
private actors
Application of Charter defined in s. 32: legislatures and government only bound, b/c govt
power to enforce rules that impinge freedoms; private power, though unequal in many
circumstances, governed by legal/statutory regimes.
Statutes subject to Charter (incl. subordinate legislation, such as regulations, enacted
pursuant to statutes)
if individual is acting pursuant to statutory authority, they too are bound by Charter (i.e.
because power/authority is constituted by legislature)Slaight Communications (cited at
page 20 in McKinney; case of an arbitrator in a labour dispute exercising a discretionary power
created by statute).

1. Application to Government

(a) McKinney v. University of Guelph et al. [1990] 3 S.C.R. 229 (Magnet II at 17) La Forest J.
Facts
Appellants, eight professors and a librarian at respondent universities applied for
declaration that policies of universities, which required appellants to retire at age 65, violate


s.15 of Charter [and that s.9(a) of the Ontario Human Rights Code, by not treating persons
who attain the age of 65 equally with others, also violates s.15].
University argued that s. 15 would not apply to universities. However, universities in the
case were in fact established by a statute, e.g. the York University Act, and received most
of their funding from government.
However, Universities had significant autonomy; decision in question made by universities,
not govt. In most of the cases, most of the members of the BoG were not appointed by the
Government
Analysis and Disposition
Universities are not part of government, for purposes of s. 32(1). Collective Agreement is
challenged on the basis of age discrimination. Court endorses the Slaight principle:
those exercising statutory power are subject to Charter, AND those under control of
government also subject to Charter. However, if the statute is merely passed to
facilitate private decisions, it will not qualify as government.
govt has no legal power to control universities; the Act incorporates a university and does
not alter traditional nature of such an institution as community of scholars and students
enjoying substantial internal autonomy.

(b) Lavigne v. OPSEU, [1991] 2 S.C.R. 211 (Magnet II at 29) LaForest J.
Facts
Automatic decution of union dues and allocation to trade union even though those being
charged were not union members; some of those funds were being used for political
purposes that he disagreed w/; he tried to argue violation of freedom of assocn (forcing him
to assoc w/union); government had significant control over decisions of College (employer)
Ont. Council of Regents estd by s.5(2) Ministry of Colleges and Univ. Act; Lt. Gov. in
Council appoints members.
Colleges Collective Bargaining Agreement designates Ontario Council of Regents as
bargaining agent for colleges employers; they entered into an agreement with OPSEU.
OPSEU collects union dues from all employees, even non-union members. OPSEU gives
$ to NUPGE, which pays dues to CLC and OFL - s union-related causes.
Lavigne, teaching master at Haileybury School of Mines, challenged certain expenditures.
Analysis and Disposition
Council of Regents subject to Charter b/c Government found to have direct control over
community colleges. Charter engaged not b/c of statute, but because government
exercised significant control over community colleges. Lavigne actually ended up losing his
case on the merits, but had right to go to Court under the Charter.

2. Application to Private Action

(a) R.W.D.S.U. v. Dolphin Delivery, [1986] 2 S.C.R. 573.
Facts
Company applies for injunction to restrain secondary picketing; strike at Purolator; union
decided to picket at Dolphin. Dolphin sought injunction on the basis of common law,
whereby secondary picketing was considered tortious (recent Pepsi Cola case: secondary
picketing not unlawful at common law). One issue was whether secondary picketing in a
labour dispute is protected as freedom of expression under s. 2(b) of the Charter and
accordingly not the proper subject of an injunction to restrain it.
Analysis and Disposition
Charter does apply to common law (based on s. 52 of CA 1982; any law that is inconsistent
with Charter is of no force and effect; on this basis that Pepsi Cola and Hill v. Church of
Scientology were decided).


However, Charter does not apply to private litigation, even if party seeks to invoke
Court in that private litigation.
Court says have to have government involvement for Charter to apply. need a more direct and
precisely defd connectn b/w gov action and claim
Courts not part of government per se.
Absence of any direct governmental involvement meant that the Charter did not apply.
Dolphin was very controversial, severely criticized: Monahan seems to think all of this is just
a waste of trees.
Charter not intended to apply to private action, however Court criticized for arbitrariness of
line it drew.

(b) Eldridge v. AGBC, [1997] 3 SCR 624 (Magnet II at 48)
Facts
Application for a declaration that the failure to provide sign language interpreters as an
insured benefit under the Medical Services Plan of BC violated s. 15(1) of the CCRF.
Appellants assert that because of the communication barrier that exists between deaf persons
and health care providers, they receive a lesser quality of medical services than hearing
persons.
Analysis and Disposition
Hospitals held to be subject to Charter in implementing specific government policy; [c.f.
Stoffman, hospitals found not to be government, b/c they have autonomy and are not under
government control].
Hospitals found to have violated Charter in not providing sign-language facilities.
It was really government policy not to provide funds to make sign-language
interpretation available that violated the Charter. Despite the fact that there wasnt an
explicit policy, the failure to provide constituted implicit policy decision.
hospital insurance and medicare programs in force in this country come within the exclusive
jurisdiction of the provinces under ss. 92(7) (hospitals), 92(13) (property and civil rights) and
92(16) (matters of a merely local or private nature)
The act does not expressly forbid the use or provision of sign language facilities. Therefore, it
was the discretion of delegated decision-makers, not the legislation, that was in question.
Although the benefits of medical services are delivered and administered through private
institutions hospitals it is the govt, and not the hospitals, that is responsible for defining
both the content of that service and the persons entitled to receive it.
Hospitals are required to furnish the general hospital services specified in the Act
The alleged discrimination is intimately connected to the medical services delivery system
instituted by the legislation
Thus, while hospitals may be autonomous in their day-to-day operations, they act as agents
for the govt in providing specific medical services set out in the Act.
Legislature cannot evade its obligations under s. 15(1) of the Charter to provide those
services without discrimination by appointing hospitals to carry out that objective.
Two types of Charter violations:
(i) Legislation may be found to be unconstitutional on its face because it violates
a Charter right and is not saved by s. 1. In such cases, the legislation will be
found invalid and the Court compelled to declare it of no force or effect pursuan
to s. 52(1) of the CA 1982
(ii) Charter my be infringe by actions of a delegated decision-maker in applying it.
In such cases, the legislation remains valid, but a remedy for the unconstitutional
action may be sought pursuant to s. 24(1) of the Charter.
[when addressing Charter question, determine which type of violation is present]

(c) Magnet Research Note--Three Situations Open to Charter Review (p. 71ff)


1. Government itself interacts w/ individuals or entities.
2. Private individuals interact with each other through medium of private law system of torts,
contracts, property and trusts. Private law system is one of rules, some common law, some
statutory. Rules/laws but NOT relationship subject to Charter; complications: R.B. v. Childrens
Aid Society: (parens patriae allows parental rights to be overridden.
3. Private individuals interact with each other without the legal system. Charter does not apply.
N.B.: Vriend found that an omission or gap in a piece of legislation is also open to Charter review.

(d) Application of Constitutional Rights to Private Actions: Comparative Survey
in some countries, the view has been taken that govt inaction (as well as action) amounts
to govt conduct
implication of this position is that there is really no private act untouched by govt action,
since govts can make acts illegal
applying constitutional protections to all areas of private conduct would have a profound
impact on citizens interest in being left alone by the state
general consensus is that a line must be drawn dividing private from govtal acts
American Approach: State Action: Govt Function and Nexus Doctrines
o state action doctrine goes back to civil rights cases of the 19
th
c US
o developed as a limitation to congressional law-making power - Congress was not
found to have jurisdiction to make anti-discrmination laws, as those interfered with
the freedom of private individuals to discriminate on the basis of race
o state action doctrine in 20
th
c has focused on two different objectives: (i) limit the
effect of the Constitution and prevent it from preempting individual liberties and (ii)
limit the power of the courts in order to maintain the freedom of the state and federal
legislatures to choose in which areas they wish to regulate
o problems of doctrine stem from competing goals maximum personal freedom and
maximum legislative freedom tend to be mutually exclusive
o no straightforward test has evolved for deciding whether an act constitutes govt
action
o language such as to some significant extent or nexus between private and govt
action indicates a direction of inquiry at best
o public function first line of cases revolved around company towns [list of cases
omitted]. In Marsh the owners of a company town were to be subject to the 1
st

amendment, as the town was in all aspects other than land ownership
indistinguishable from other towns.
o idea was not extended to shopping centres [Logan] but was applied to parks park
ownership placed constitutional duties on the trustees
o nexus second line of cases deals with the issue of state involvement through
endorsement or encouragement of private actions. Court orders, like public funding
or licencing, may be seen as state endorsement or support of private actions.
German Approach
o German constitution expressly applies to the judiciary, making all judicial decisions
reviewable by the constitutional court
o where a law forms the relevant basis for a judicial act, the law is the primary object
of constitutional review, and not the court order
o third party effect guarantees of the Basic Law are considered to indirectly
influence private disputes, because court orders are constitutionally reviewable.
o Traditional liberal position that constitutional guarantees have no impact on private
law has now all but disappeared.
o Critics initially warned that the third party approach would open the floodgates of
litigation this has not occurred


o third party effects are taken most seriously where there is a strong power imbalance
between the litigants. In these cases the Constitutional Court has been more
readily prepared to review judicial orders.
o protection of citizens from powerful groups or individuals is seen as analogous to
state interference
o Constitutional Court has made it clear that a review of private law court orders is
limited to cases of clear and grievous infringements of constitutional guarantees
South Africa: The New Constitution
o review of judicial decisions of private sphere actions is expressly provided for. but
this provision has yet to be interpreted by the courts.

III. Limitations on Rights: Section 1

1. Introduction and Legislative History

U.S. Constitution has no limitations clause; post-1945 human rights instruments typically
contain limitation clause. Recognition that rights are not absolute, but must be balanced
against rights of others and collective interests. 1971 Victoria Charterhad a limitations
clause.
Earlier versions of s. 1 had been more deferential to legislative choices, i.e. limits that were
reasonable and generally accepted in free and democratic societies were acceptable.
Section 1 was made more stringent in Parliamentary hearings, resulting in concept of
demonstrable justification which signaled high standard of justification for limits on rights.
Also introduced notion of guaranteed rights.
Analysis of substantive rights distinct from consideration of limitations under s. 1 (see note
p. 220):
Stage OneAnalysis of Substantive Rights
Burden lies on person challenging to show there has been prima facie violation of
fundamental right.
Court construes Charter rights purposively and interprets generously rather than
legalistically.
Look to purpose of particular right, as well as of Charter as a whole (Hunter v. Southam; R.
v. Big M Drug Mart). Imagery of constitution as a living tree (borrowed from Edwards,
1929) as part of this purposive approach.
Court has tended to construe Charter rights broadlyi.e. freedom of expression (but see
equality rights cases).
Either the purpose OR the effect of a law may be found to infringe Charter. (c.f.
Division of Powers analysis, e.g. PITH AND SUBSTANCE where we look at the purpose of
the law).
Stage Two-Consideration of Limitations
s. 1 stage of analysis: burden shifts to the Government to justify impugned law.
Grammatical elements: reasonable limit, prescribed by law, demonstrably justified in free
and democratic society.

2. The Oakes Test and its Evolution

(a) R. v. Oakes, [1986] 1 SCR 103 (Magnet II at 243)
Provides framework for analysis of what is demonstrably justifiable; Oakes was culmination
of early cases that had taken a stringent view of s. 1; rejected utilitarian arguments relating
to costs or efficiency as basis for limiting rights.


Standard of proof is civil standard, BoP; high standard of justification, premised on the
understanding the measure infringes protected right. Four-part test
1. Purpose: Must relate to concerns that are pressing and substantial in a free and democratic
society.
Objective must be sufficiently important (pressing and substantial)
Rarely struck down legislation on basis of purpose: E.g. Big M Drug Mart, where purpose,
to guarantee Christian religious holiday, was inherently contrary to the Charter; Vriend,
purpose of excluding sexual orientation from H.R. code found to be inimical to
Charter/section 1.
2. Means Analysis: Proportionality test:
Must be a Rational connection
o Must not be arbitrary, unfair, or based on irrational considerations. Relatively few
laws have failed rational connection test; laws may be unjust, but usually are
rational. (So, Monahan thinks Oakes was decided wrong?).
Minimal impairment of rights
o Most frequent basis striking down laws; requires consideration alternative means of
achieving objective. Could legislature have achieved objective through less drastic
measures? Oakes spoke of impairing rights as little as possible. Minimal
impairment is core of Oakes test.
Proportionality
o btw deleterious effects and objective of law (including a proportionality btw
deleterious effects and salutary effects).
Hard to see that it adds anything to other elements, but Dagenais found have to consider
deleterious effects and salutary effects (i.e. even though the law is rational and intends its
objective, it may achieve so little may not be worth the impact on rights). Really aspect of
Rational connection, and that what is really shown here is whether the Rational connection
is strong enough to bring about the salutary effects intended as the objective

*Subsequent ApproachesCourts have backed away from stringent application of the Oakes
test*

(b) R. v. Edwards Books and Art Ltd. [1986] 2 S.C.R. 713 (Magnet II at 251) Dickson C.J.
Facts
Ontario retailers were charged in 1983 with failing to ensure that no goods were sold or
offered for sale by retail on a Sunday contrary to the Retail Business Holidays Act.
They challenged the constitutionality of the Retail Business Holidays Act. Under s. 3(4),
stores could open on Sunday if they had been closed on Saturday, and had no more than
seven employees and had less than 5,000 square feet of retail space to serve the public.
Analysis and Disposition
The Act was not a surreptitious attempt to encourage religious worship but rather was
enacted for the secular purpose of providing uniform holidays for retail workers. The title
and text of the Act, the legislative debates and the Report on Sunday Observance
Legislation all point to its secular purposes.
There exists to some degree a trade-off ;
principles articulated in Oakes make it incumbent on legislature which enacts Sunday
closing laws to attempt very seriously to alleviate effects of those laws on Saturday
observers;
not the role of this court to devise legislation that is constitutionally valid, or to pass on the
validity of schemes not directly before it, or to consider what legislation might be the most
desirable.



(c) Irwin Toy Ltd. v. Quebec [1989] 1 S.C.R. 927 (Magnet II at 259) Dickson C.J.:
Facts
Sections 248 and 249 of the Quebec Consumer Protection Act prohibited most forms of
commercial advertising at children. Court held that the consumer protection provisions did
violate s.2(b) of the Charter.
Analysis and Disposition
The provincial legislation was not ultra vires the Province of Quebec nor was it of no force
and effect by virtue of the Broadcasting Act. The legislation was not subject to a valid and
subsisting override provision. Finally, while the legislation did infringe s. 2(b) of
the Canadian Charter of Rights and Freedoms and s. 3 of the Quebec Charter, the
infringement was justified under s. 1 of the federal Charter and s. 9.1 of the Quebec
Charter. The respondent was not entitled to invoke s. 7 of the federal Charter.
Introduces concept of laws that balance interests of competing groups.
Where the government is mediating between different social groups, the court
should show deference to the legislature.
Such laws need only be reasonable
case called Edward Bocks - legislation re stores closing on Sunday upheld. Very
little evidence but said as long as the line drawing exercise is reasonable we will
accept what legislation has done.
Irwin Toy softening of requirements - making it easier to uphold legislation.
Irwin Toy introduced new concept - balancing interests of competing groups.
Main evidence was study of effects on children aged 2-6.
But this law banned advertising up to 13.
Says they can extend study to 7 to 13 because at some age children become more critical
and can understand. This happens sometime between the ages of 7 and 13. Court says if
legislature wants to put limit at 13 it will let them.
Response to concerns of Charter critics.
Irwin introduces concept of social and economic legislation. The courts are saying to
legislature: dont worry about the Charter when you are making laws of social and
economic justice.
Idea of laws protecting competing groups seen as distinct from criminal law.
However, criminal law also protects competing groups,
In criminal law we have entire community against one individual. In these cases the
rigorous Oakes test is appropriate.
Monahan: This is a false distinction because criminal matters are also matters of competing
interest. Parliament is still mediating between interests of accused and victims. It is not a
singular antagonist situation.
Therefore extreme deference may be appropriate in any case.
Even if no evidence, if reasonable apprehension of harm, Courts give margin of
appreciation to the legislature.

(d) Thomson Newspapers v. Canada (A.G.) [1998] 1 S.C.R. 877 (Magnet II at 296) Bastarache
J.
~SCCs current approach to s.1; attempt to reconcile cases since Irwin Toy; contextual or Oakes
Plus approach.
Facts
Issue is the validity of ban on publication of polls in 72-hour period prior to elections.
Analysis and Disposition
Bastarache rejects the deferential approach. Emphasizes the need for a contextual
approach in the application of s. 1.


Certain factors may suggest deference, but no one factor is determinative.
o Vulnerability of Group protectedPresumption in this Court should be that
Canadian voter is a rational actor who can learn from experience (p. 307).
o Inability to measure the harm scientifically.
o Nature of activity which is limited. (Here, political free speech, c.f. R. v. Sharpe,
where it was free speech but child pornography).
In this case, none of above factors are present or pressing, thus no need to adopt a
deferential standard under s. 1.
Finds that there is a pressing and substantial purpose and a rational connection.
However, fails minimal impairment test; an alternative available: public of polls w/
methodological information.
Legislation also failed the final stage of the Oakes test the general proportionality test.
Dissent of Gonthier: cites Irwin Toy (p. 299): Parliament simply needs reasonable basis,
which they have here.
Parliament has now re-enacted a 48 hour ban on poll publication, which has been
challengedwhat is the likely result? SVS thinks it will be struck down. Monahan, being
almost as smart as SVS, agrees. DoJ must have thought that this option would be a lessor
impairment, w/ fewer deleterious effects; risks are greater in the final few days

3. Prescribed by Law

(a) General
Requirement serves gatekeeper function; any Charter limit must be clearly set out in
statute/regulation/c.l. rule.
Often applied in context of police investigations, where there is no express statutory
authorization for police action. If no limit is prescribed by law, limit automatically fails
section 1 test (e.g. Therens, 1985, LeDain J.).
However a law may limit a right by necessary implication; c.f. Therens to Thomsen, 1988,
LeDain J.: different results? Thomsen provision satisfied proscribed by law provision,
because the use of forthwith made it clear.
Laws providing for administrative discretion are consistent with prescribed by lawsee
Little Sisters (p. 325).
Some cases suggested prescribed by law requirement imports vagueness analysis: See
Ontario Film, (322). Law must be sufficiently precise to qualify as law. c.f. N. S.
Phramaceutical Society, 1992, Gontheir J., (326).
Later cases, Court says preferable to consider vagueness as aspect of demonstrable
justification analysis, b/c allows more thorough test (i.e. Oakes), whereas prescribed by
law approach is more categorical and less nuanced.
As a result, the prescribed by law requirement has rarely been determinative in s. 1 cases.
test: ask whether the impugned provision is an express limitation, or is implied (a
question of implication can be answered by determining whether the impugned
provision is incompatible with the right in question). If the impugned provision is an
express or implied limitation, use Oakes test. If it is not expressly or implicitly
prescribed, then it cannot be justified under s. 1.

(b) R v. Therens, [1985] 1 SCR 613 (Magnet II at 317)
Facts
Accused was involved in a motor vehicle accident.
A police officer at the scene made a demand on the accused under s. 235(1) of the CC
requiring the accused to accompany him for the purpose of obtaining samples of the
accuseds breath.


Accused was not informed of his rights to retain and instruct counsel.
Analysis and Disposition
The court held that a person upon whom a demand is made to accompany a police officer
and submit to a breathalyzer test is detained within the meaning of s. 10(b) of the Charter
and therefore has a right to counsel
Section 1 requires that the limit be prescribed by law
this requirement is chiefly concerned with the distinction between a limit imposed by law
and one that is arbitrary
a limit is prescribed by law if it is expressly provided for by statute or regulation, or
results by necessary implication from the terms of a statute or regulation or from its
operating requirements or from a common law rule.
S. 235(1) and the related breathalyzer provisions of the CC do not expressly purport to limit
the right to counsel. Such a limit if it exists, must result by implication from their terms or
operating requirements.
the requirement that a demand under s. 235(1) be made forthwith or as soon as
possible does not preclude any contact at all with counsel prior to the breathalyzer
test. The right to retain and instruct counsel without delay is not, therefore, subject
to a limit prescribed by law within the meaning of s. 1

(c) Thomsen v. R., [1988] 1 SCR 640 (Magnet II at 319)
Facts
Police officer stopped accuseds vehicle. Officer detected an odour of alcohol on the
accuseds breath and made a formal demand that he provide a breath sample.
The accused refused. The officer gave him two more opportunities to comply. The
accused again refused.
At no time did the officer inform the accused of the right to retain and instruct counsel
without delay.
Analysis and Disposition
Court looked at provision in question s. 234.1(1)
it is evident that the section, as drafted, does not permit a detained person, subject to a
demand, to retain and instruct counsel before complying with such demand.
The right to retain counsel is incompatible with the effective use of this device on a random
basis with the purpose of demonstrating a police presence to convince the driving public
that there is a high probability of detection in the event that they drive after drinking.

IV. Override--Notwithstanding Clause, s.33

(a) General
Section 33 is not about balancing rights, it is about a legislature passing a law that is
known to be in conflict with the Charter. It makes the law immune from any Charter
challenge.
Not included in original draft of Charter; inserted in November 1981, as a compromise
seen as a protection against rogue judges. (E.g. Lochner in N.Y.: 1905 U.S. case striking
down maximum hours of work legislation).
Argued political cost would be paid, since must be express declaration in statute (i.e. not
by implication, not in a regulation, c.f. prescribed by law) that Charter is being overridden.
Specific requirements:
Only sections 2 and 7 15 may be overridden
Democratic, mobility, and language rights and s. 28 NOT subject to override


Declaration expires after 5 years, but may be re-enacted for a subsequent five-year period,
as long as legislature continues to expressly declare that a Charter right has been
overridden.
S. 33 used in SK in 1985 to shield back-to-work legislation. Proved unnecessary since
SCC ruled that the right to strike is not constitutionally protected.
S. 33 used in QC as a means of protesting the Charter itself; Quebec began regularly
inserting notwithstanding clauses in all its statutes, and also inserted it in all existing
statutes through an omnibus amendment.

(b) Ford v. QC [1988] 2 S.C.R. 712 (Magnet II at 207) The Court
Facts
The immediate issue was whether ss. 58 and 69 of QC Charter of the French Language
infringed Charter guarantee of freedom of expression.
The fundamental issue was the standard override provision that QC had passed following
its unsuccessful participation in the Constitutional patriation negotiations.
The standard override provision read: This Act shall operate notwithstanding the
provisions of s.2, 7-15 of CA 1982. The issue was whether there was a sufficient degree
of specificity in this provision.
QC CA struck down the omnibus and standard use of override on basis that it lacked the
specificity required. Specificity required since it was the only way to impose a political cost.
Analysis and Disposition
Necessary to specify Charter provision being overridden all that is necessary is to state
precisely legislative provisions that are to take precedence, and specific provisions of
Charter being overridden.
Court also upholds omnibus insertion of the override. Court essentially says that they will
not review the override.

Recently, use of the override has attracted considerable political attention.
1998, Alberta government inserted override (p. 219) in statute limiting compensation to
persons who had been forcibly sterilized; provision subsequently withdrawn when the Bill
went to 2
nd
reading.
Alberta debated the use of s. 33 after the Vriend decision.
Active debate over Sharpe case on child pornography.
Existence of s. 33 allows for political debate over rights and freedoms. Provides a safety
valve to ensure judges do not stray too far from public opinion.
However, use of override in some situations may not involve a political cost, at least in the
short-term. E.g. QC used the override to limit English on signs. In some places
discrimination may be popular, which seems pretty inconsistent with the purpose of having
a Charter.

(c) Whyte, On Not Standing for Notwithstanding
some claim that the legislative override is a uniquely Canadian feature of our Constitution
by this observation, there are four other elements of our Constitution other constitutional
arrangements that reveal fundamental commitments that fit well with permitting legislative
override of Charter protections
in arguing against its repeal Russell and Weiler nothing in our Constitution is so
distinctively Canadian as this manner of reconciling the British tradition of responsible
democratic govt with the American tradition of judicially enforced constitutional rights
another justification Hogg a concession to Canadas long tradition of parliamentary
sovereignty


justifications are wrong first, the principles at work in the design of he Canadian state
support not allowing any legislative exemptions from the court-enforced rights at least as
powerfully as they support including such a power in the Constitution
second must pay attention to the actual social goods and bads that are likely to be
produced by the practice of exercising legislative power to override Charter rights
unfortunate aspect of the description of the override as a restrained tool, instrument of
thoughtful response and balancer of constitutional ideologies is that its use is simply not
likely to be restricted to instances that match this description
primary reason for doing away with the override is that the anxiety that produced the
political demand for entrenched rights cannot rationally be calmed in the face of legislative
power granted by s. 33
anxiety is this: political authority will, at some point, be exercised oppressively.
It will be exercised to impose very serious burdens on groups of people when there is no
rational justification for doing so.
the more we succeed in marginalizing s. 33 by pointing to its rare use and its deployment in
extraordinary circumstances only, the more will it become associated with intense political
moments that produce political oppression

(d) Russell, Standing Up For Notwithstanding
arguments in support of legislative override:
(i) judges are not infallible they make decision about the limits and nature of rights and
freedoms which are extremely questionable. Legislative override provides a process
through which the justice and wisdom of these decisions can be publicly discussed.
our constitution-makers in 1982 through the override clause provided for a partnership
between legislatures and the courts
under this approach judges will be on the front lines at the same time however the
Charter reserves for the legislature a final say to be used sparingly in the exceptional case
where the judiciary has gone awry
occasionally situations will arise in which the citizenry through a responsible and
accountable process concludes that a judicial resolution of a rights issue is seriously flawed
and seeks to reverse it
other options constitutional amendment in most democratic countries, this is an
extraordinarily difficult process; US change the composition of judicial bodies
options seem less appropriate devices than legislative debate and discussion for
challenging judicial decisions
author qualified support of the override by arguing for its superiority when properly used,
when it is invoked only after a reasoned debate in the legislature [author considers Ford
decision, supra, wrong]
primary purpose of the override is to provide an opportunity for responsible and
accountable public discussion of rights issues, a purpose that may be seriously undermined
if legislatures are free to use the override without discussion and deliberation
(ii) override subjects questions of political and social justice raised by the Charter to
a process of wide public discussion so that the politically active citizenry participate
in and share responsibility for the outcome
through parliamentary institutions we move closer to experiencing a form of democratic
govt that is not simply rule of the greater number but that elicit and enlists... a govt
depending on mutual interchange or ideas.
we have less change of realizing democratic ideals if we give judges final word on rights
issues



(e) Canada, Shaping Canadas Future Together: Proposals (1991)
proposal that the votes necessary for Parliament or provincial legislature to invoke the
override clause of the Charter be changed from a simple majority to 60 per cent of the
members of Parliament or the legislature

Jusitification and Dangers of the Legislative Override (see Magnet II at 217)



V. Equality Rights: Charter s. 15

I. Section 15

Equality Rights
15(1) [Equality before and under law and equal protection and benefit of law] Every individual is
equal before and under the law and has the right to the equal protection and equal benefit of the
law without discrimination and, in particular, without discrimination based on race, national or
ethnic origin, colour, religion, sex, age or mental or physical disability.

15(2) [Affirmative action programs] Subsection (1) does not preclude any law, program or activity
that has as its object the amelioration of conditions of disadvantaged individuals or groups
including those that are disadvantaged because of race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability.

II. The Idea of Equality

LHeureux-Dube, Coversations on Equality
it is unjust to treat people as less worth or less deserving because of inherent personal
characteristics, circumstances in which they find themselves, or fundamental choices they
have made
it is unjust for those who have historically held advantages and privileges in society to
continue those privileges at the expense of others
JS Mill once inequality is clothed in the legitimizing language of rights and law, it receives
the sanction of society
CCRF was proclaimed in force in 1982, but implementation of section 15 was delayed until
1985 allowed for the profound re-examination of Canadas basic laws and institutions that
the recognition of such a right required disturbing indictment of our past
benchmarks
o 1929 JCPC finally recognized women as persons
o 1940 women gained right to vote in Quebec
o 1948 Japanese Canadians gained federal right to vote
o 1960 status Indians gained franchise
o 1960 Candian Bill of Rights although, it was a statute like any other and was
interpreted narrowly because it lacked the authority of a constitutional document;
court interpretation guaranteed equality to the extend that people were the same.
Women, minorities, and the disable were fully equal within their individual groups
Unlike US Constitution, Charter speaks of equality without discrimination
Charter was enacted nearly 200 years after the US Bill of Rights reflects devts in human
rights law of the latter half of the 20
th
c
equality continues to be a comparative concept does not always require that we terat
people in the same way sometimes requires that we treat them differently
with the Charter, we have gone from requiring that laws be applied in the same way to
everyone, to the stage of requiring that the law, themselves, treat individuals as substantive
equals
language of substantive equality
task is to revisit our underlying assumptions about people and social structure, to look
beyond the four corners of our respective legal and social institutions, and to contemplate
change when our examination reveals that the languages [of equality] are inconsistent



Patricia Hughes, Substantive Equality, Social Ordering and Constitutional Recognition
If people were to enjoy commonly recognized needs and were to realize an equal
opportunity for self-development which was at the heart of the evolving liberalism, some
account must be taken of different needs.
think of the difference between formal and substantive equality in this way: although
they both address the goal of eliminating the gap between the powerful and the
powerless or between the rich and the poor, formal equality does so by curtailing the
power of the rich (by requiring that they have no special privilege before the law),
substantive equality does so by curtailing the disadvantage of the poor.
Meiorin case (brought under British Columbia's Human Rights Act),
o the Government required forest firefighters to meet an aerobics standard which
most women could not meet; although the same test applied to everyone, it had a
disparate impact on women.
o Since meeting the standard was unnecessary for safety and efficiency, the standard
was discriminatory. More significantly, the Supreme Court decided in this case that
the distinction between direct and adverse impact discrimination was detrimental to
achieving equality.
o Rather, the focus should be on the effect of the law or policy, as it is under section
15 of the Charter.
Corbiere,
o the Supreme Court of Canada held that the requirement in the Indian Act that voters
in band elections be "ordinarily resident" on the reserve contravened the equality of
off-reserve band members, not only because they are affected by band council
decisions, but also because it leaves the impression that they are more assimilated
than are on-reserve members of the band.
o Although most of the equality cases have involved (in rough terms) a minority-
majority comparison, Corbiere involved a comparison between members of a
disadvantaged group, highlighting the relative nature of inequality.
contrast the Court's assessment in Corbiere with its decision in Lovelace.
o In Lovelace the Court ruled that section 15 of the Charter was not contravened by
excluding non-registered aboriginal groups from the profits of a casino project
between the Ontario government and registered bands, even though there was no
dispute that the non-registered bands were generally at a greater economic
disadvantage.
o Relative disadvantage is not the issue, but rather whether the distinction is, among
other factors, a function of stereotyping. While in many respects the Supreme
Court's equality analysis has been developing a more fluid and contextual approach,
Lovelace hints at a retrenchment which will require complainants to satisfy a
"checklist" of criteria to determine whether their dignity has been
undermined.
These developments reflect the core element of contemporary substantive equality,
the recognition of difference instead of homogeneity.
substantive equality - an appreciation of the flexibility and overlapping nature of identity
and of the distinction between an externally imposed and an internally derived identity.
recognize the legitimacy of different views or approaches, needs or experiences.
acknowledges that mainstream ("majority" or "dominant") values, institutions and
experiences are not always the appropriate way to organize the society or to organize it for
all its members.
the inquiry necessary to determine whether there is substantive inequality must be
undertaken from more than one viewpoint.


The test of whether persons are being treated equally is whether they are being
treated as if they are of equal moral worth, recognizing that equal moral worth may
mean that it will be necessary to treat people differently from each other in order to
respect their specific needs and experiences.
substantive equality requires consideration of the impact of government policy and
decisions on the various communities subject to them.
requires a determination of how decisions affect members of society because of
unexamined beliefs about their needs, behaviours and experiences.

Gerald Gunther, Individual Rights in Constitutional Law [US Perspecitive]
14
th
Amendment was ratified in 1868 designed to sustain the Civil Rights Act of 1866 to
advance rights of former slaves
Amendments language is not limited to the problems of race, colour or previous conditions
of servitude
question of the inherent content of equal protection continues to be a subject of debate
widest agreement concerns the notion that equal protection imposes that a classification
must be reasonably related to the purpose of the legislation
usually that rational classification requirements was readily satisfied courts did not
demand a tight fit between classification and purpose perfect congruence between means
and ends was not required

Notes
Equality is a comparative concept; but people use it different ways, b/c always involves
one person/group comparing treatment to another person/group and arguing inequality of
treatment. Courts accept idea.
Comparative aspect not way that rest of Charter works. Remember Thomson (newspaper
polls) argued law was violating a right, that all persons/groups are entitled to. Equality
claim involves comparison of treatments:
o Differential treatment that is not justified; or
o Lack of attempt to treat differentially where differential treatment warranted.
Artistotle defined equality (Nichomachean Ethics) Treating Likes Alike, and treating
unalikes differently in proportion to their unalikeness a similarly situated test. To
degree people are similarly situated, they should be treated similar; to degree that they are
differently situated, they should be treated different.
Notion has been criticized by SCC b/c interpreted it to mean everyone should be treated
the same, which Aristotle clearly did not suggest. SCC rejects the Aristotelian test but is
driven to what
Real problem is that Aristotle did not provide the criteria for determining whether
someone was similarly situated or not. In other words, is the fact that someone is taller
or shorter a relevant factor in determining similarly situated? We dont determine criminal
crime sentences with a regard to height, though we do with regard to age.

Rule Formalism or Formal Equality
Rule Formalism: Treat all cases governed by the terms of a valid rule in accordance with
the terms of the rule. C.f. and contrast Substantive Equality
Sometimes, Rule Formalism called Formal Equality: no-one is above the law (A.V.Dicey,
English author, jurist in 19
th
cent. England: 1885-The great genius of the English system is
that no citizen is above the law).
Not trivial requirement; consider Jones v. Clinton (U.S. S.C. 1997). Compare to
undemocratic regimes around the world. Clinton said as president he was immune from a
lawsuit until after out of office, but USSC said, NO.



Substantive Equality
The Debate - Formal Equality is said to require treating everyone the same, whereas
substantive equality requires that appropriate differences be taken into account
see LH-D (p.737) and Hughes (745).
Eldridge hospital case (p. 48 and 845): whether hospital should require sign-language
facilities for hearing impaired. In such a case, have to take account of differences so you
can put various individuals in same position.
Formal Equality, the desire to treat everyone the same, would not allow for these so-called
exceptions.
Approach to Substantive Equality:
(i) Deciding Appropriate Differences
Prof. Hughes p. 750, 3
rd
para: The key of the concept becomes When is it appropriate to
take into account the differences? Which differences are appropriate? Individuals
should not be disadvantaged based on irrelevant personal characteristics.
Monahan thinks this is a good statement of the crux of the issue.
Edwards v. Canada (1929),
o only men can be appointed to Senate: surely contradictory to this rule, since being
man had nothing to do w/ being Senator; esp. when based on something beyond
capacity of individual to change.
BUT,
o rule saying airline pilots must have 20-20 vision, although based on personal
characteristics, might not be inconsistent with equality. Characteristics relevant to
task involved.
Compare fit between laws categories and purpose; discriminatory purpose not
allowed, but will allow category to fit purpose. May in some sense discriminate;
rule regarding airline pilots is not passed w/ discriminatory purpose, but to establish
airline safety. Discrimination as such may survive Charter challenge.
Law v. Canada: People under 35 not entitled to CPP; appropriate to deny person a
pension when they are under 35 because these people are differently situated.
(ii) Key is Defining the Purpose
Key becomes way in which we define purpose of law; Courts have found you have to
describe purpose wrt the discriminatory aspect/effect of law; has to be non-
discriminatory purpose, and purpose itself has to be justifiable.
Furthermore, if effect of the law (notwithstanding its purpose) is discriminatory, we might
analyse the law to assess the necessity of the provision that leads to the discriminatory
effect.
In a liberal-democratic society, we are committed to the premise that every citizen has
equal moral worth, and as a consequence is entitled to equal consideration in way society
is organized and structured. (749).
Focus on fit btw category of discrimination and purpose; e.g. Firefighter height requirement:
discriminatory effect on Asians/women; height not reasonable category in support of
purpose of having qualified firefighters.
Remember s. 15 is also subject to s. 32 (Charter applies to government); see Andrews
case.
Debate about Equality is really about when it is appropriate/relevant to take account of
difference.
(iii) Legal Approaches
Tarnopolsky: former Osgoode prof., advocated for Charter. Classic articles (1970s)
showing SCC had no concept of equality under Bill of Rights; BoR jurisprudence ultimately


rule formalism. Charter drafted in an effort to take this jurisprudence into account;
Tarnopolsky was instrumental in his testimony and recommendations at the time.
Dry Bones (1970, p. 758):
o Provision of Indian Act, making it offence for Indians to be intoxicated off reserve,
against Equality provision of BoR, no offence for non-natives. Ritchie: race-based
offences violated equality.
Lavell, (1974)
o Court (Ritchie again) upheld provisions of Indian Act, providing that native women,
had to lose Indian status by marrying non-natives (see p. 983). Court interpreted
equality before the law as importing rule formalismequal application of law, even
if law is unjust.
Bliss (1979)
o pregnant woman seeking U.I. benefits; legislation at time required pregnant women
to work two more weeks than others for benefits. Court distinguished btw equal
benefit of law and equality before law.
Charter drafters attempted to prevent these approaches to s. 15: In addition to
equality before the law added: equality under the law as well as equal
protection and equal benefit of the law.
Ss. 15 and 28: Tried to prevent American cases restricting affirmative action programs from
being followed in Canada. Additionally, the Charter cannot derogate from aboriginal rights
(s. 25).
S. 28: The use of notwithstanding anything in this Charter, signals it cannot be
overridden by s. 33.
S. 15 worded as a general guarantee, followed by in particular. General guarantee
followed by specific enumerations. What would be the effect of removing words in
particular from s. 15? I think removing it would broaden the meaning; the inclusion makes
it more narrow. Drafters also added disability to enumerations.
Also, used word individual as opposed to everyone (s. 2, 7), every citizen (s. 3, 6, 23)
or every person (s. 11). Actually, s. 11 is any person. The use of individual is intended
to exclude community rights claims under s. 15, and also claims by Corporations. S. 11
includes legal persons, both individuals and corporations. Individual and everyone
basically same thing, though everyone in s.2b interpreted as including corporations.

III. Equality Under the Charter

(a) Law Society of BC v. Andrews, [1989] 1 S.C.R. 143, (Magnet II at 759) McIntyre J.
Facts
Challenged law that said you have to be a Cdn citizen to be eligible for the B.C. bar;
citizenship is not enumerated in s.15 as an inappropriate ground for discrimination
Analysis and Disposition
McIntyre J. makes preliminary observations:
1. Equality is a comparative concept
2. Law should not classify based on irrelevant personal characteristics (how relevance
judged in context?)
3. Rejects similarly situated test (of Aristotle) which he equates w/ Rule Formalism.
[Rejection has led to confusion in later cases.]
4. All laws make classifications; the question is which are acceptable and which are not.
Adopts a three-part enumerated and analogous grounds test for s. 15.
Enumerated or Analogous Ground Test
o Focus on the alleged ground of discrimination, and ask whether or not it is an
enumerated or analogous ground to those contained in s. 15(1).


problem with what is considered an analogous ground. Citizenship held to
be analogous, perhaps because non-citizens are a discrete and insular
minority.
o Does the law impose a burden not imposed (or grant a benefit not granted) on
others?
o Is the legislative impact discriminatory? But what do we mean by
discrimination?
discriminatory = categorizes not on basis of merits, but on distinctions which involve
prejudice or disadvantage
complainant must show that the law has a differential impact on him in protectn or benefit
accorded by law
bars entire class of people from certain kind of employt solely on grds of citizenship
status and fails to consider the merits or qualifications of applicants. It uses irrelevant
characteristics.
If found to be an enumerated/analogous, go to s.1 (Oakes test) to determine if violatn
is justified.
***Ultimately, the justification of a law has to be considered under s. 1.
Key innovation of Andrews: s. 15 limited to laws that classify on specific enumerated or
analogous grounds.
Concern had been expressed that there were too many section 15 cases being brought
(specifically criminal cases saying that law was making a distinction against them)
Andrews narrowed scope of s. 15.

(b) Law v. Canada (Minister of HRDC) [1999] 1 S.C.R. 497 (Magnet II at 775) Iacobucci J.
Facts
Case considers CPP - imposes a limitation of benefits based on the age of applicant.
Questions is whether such limit is constitutionally valid.
Surviving spouses who are under 35 and not disabled are unable to claim survivorship
pension until s/he reaches the age of 65.
Argued restriction violated s. 15.
Court attempts to unify analysis under s. 15 in unanimous judgment with guidelines.
Analysis and Disposition
Iacobucci gets unanimity by putting together a single test that includes all previous three
theories in one way or another (Constitutional buffet) no one factor determinative.
Test:
o Does the impugned law
(a) draw a formal distinction between the claimant and others on the
basis of one or more personal characteristics or
(b) fail to take into account the claimants already disadvantaged
position within Canadian society resulting in substantively differential
treatment between the claimant and others on the basis of one or more
personal characteristics?
o Is the claimant subject to differential treatment based on one or more of the
enumerated and analogous grounds?
o Does the differential treatment discriminate, by imposing a burden upon or
withholding a benefit from the claimant in a manner that reflects the
stereotypical application of presumed group or personal characteristics, or
which otherwise has the effect of perpetuating or promoting the view that the
individual is less capable or worthy of recognition or value as a human being
or as a member of Canadian society, equally deserving of concern, respect,
and consideration?


Application to Nancy Law
o Court says provision reflects the fact that younger persons are generally better
able to find employment after death of spouse. The law functions not by the
device of stereotype but by distinctions corresponding to actual situation.
o Age is found to be a reasonable proxy for long-term need; also points out that Ms.
Law is not completely excluded from a benefit, but must wait until age 65.
o Are these not more relevant to s. 1 than s. 15. Law test criticized for its
complexity and cumbersome nature.
o Granovsky p. 789; Lavoie March 15, 2002again Law test applied and affirmed
by a Majority.
Analysis of fit btw purpose and classification in the law, i.e. law classifies in a way that is
consistent w/ purpose.
Government has to justify limitation/cut off. In effect, s. 15 analysis has own s.1
analysis of purpose and proportionality.
Objection could be made to the way the law is discriminatory toward women (who were
predominantly surviving spouses).
However, n.b. at the s. 15 stage, the burden is on the one bringing the challenge to the law.
Monahan thinks that s. 15 infringement should just go to s. 1 analysis. Thinks problem
comes out of the Andrews case. 1995 Mirone (McL, discussing marital status as an
analogous ground) put forward Monahans simpler view.

(c) Vriend v. Alberta [1998] 1 S.C.R. 493 (Magnet II at 804) Cory J.
Facts
Alberta human rights legislation (IRPA) prohibits discrimination on certain grounds; includes
all enumerated grounds s. 15 of Charter; also includes analogous grounds of marital status,
and other grounds not enumerated (i.e. source of income), but sexual orientation not
included.
Previous reports had recommended inclusion of sexual orientation.
Government indicated litigation would resolve issues.
Delwin Vriend dismissed from Kings College b/c of his sexual orientation.
Filed complaint with human rights commission complaint dismissed.
Case raises significant questions as to responsibility of government to remedy private
discrimination.
Courts have held that Charter does not apply to private sector (i.e. Dolphin Delivery)
can Government be compelled to take positive action to remedy discrimination on s. 15
grounds?
Alta. C.A. had said that there was no obligation on Government to remedy private
discrimination.
McClung J.A. quotes the internationally recognized jurist LHeureux-Dube quoting her
words in McKinney where she said that if government failed to prohibit age discrimination,
no remedy would lie. (mandatory retirement provisions case).
LHD had made obiter comment that legislation that was solely focused on one ground,
would not be held invalid for excluding other grounds, BUT Cory lays this aside quickly (see
p. 809).
Analysis and Disposition
Cory rejects argument that legislative omission cannot be reviewed. Argues s. 32 applies
to matters within the authority of the legislature not only to positive actions by the
legislature.
Under-inclusiveness is subject to review yet it too is a form of omission.
Cory argues what is being reviewed is legislation, not private activity as such.


The deliberate choice not to legislate engages Charter and leaves open the possibility that
total failure to act may also engage Charter (para 64).
But, idea is unclear w/ regard to implications of this analysis for future cases. Could one
use litigation to add via judicial review analogous grounds to Human Rights legislation?
On s. 15, Cory refines analysis from Egan and subsequent cases.
Two-step analysis:
o Denial of equality before or under the law, or equal protection or benefit of the law?
Does law create distinction based on personal characteristic?
Does it deny benefit or impose burden based on that distinction?
o Denial must constitute discrimination on enumerated or analogous ground?

LAW TEST TAKES PRECEDENCE OVER VRIEND

IV. Equality Rights: Analogous Grounds

(a) Corbierre v. Canada [1999] 2 S.C.R. 203 (Magnet II at 824), McL and Bastarache
Facts
Indian Act requires that a person be ordinarily resident on reserve in order to vote in band
elections.
Analysis and Disposition
Court unanimously strikes down provision. McL and Bastarache distinguish btw second
and third stage of the Law test; an analogous ground, once established will always be
analogous.
Analogous grounds are, like enumerated grounds, those often used as basis for
stereotypical decisions not on the basis of merit but on the basis of a personal
characteristic that is immutable or changeable only at unacceptable cost to personal
identity. AND Characteristics are either actually immutable [race] or constructively
immutable [religion].
Thrust of identification of analogous grounds at the second stage of Law analysis is to
reveal grounds based on characteristics we cannot change or that government has no
legitimate interest expecting us to change to receive equal treatment under law.
Off-reserve status is analogous ground; Aboriginality-residence personal characteristics
essential to personal identity.
LHD [dissent]: analogous grounds tied to treatment in specific ways of specific groups.
Off-reserve band membership is analogous in any future case involving this combination of
traits.

V. Systemic Discrimination

(a) General
Direct discrimination: law makes distinction on its face (expressly) on enumerated or
analogous ground (e.g. only men can be appointed to the Senate).
Indirect or Adverse Effects Discrimination: refers to law which is neutral on its face but
has disproportionate impact on s. 15 grounds. Occurs where a rule, without any intent,
disproportionately affects a particular class of people. The adverse effect doctrine provides
the court with a method to correct prejudice to a group which results from seemingly neutral
rules
Simpson Sears
o employer had genuine business reasons for requiring employees to work on
Saturdays


o Court held the employer to a duty to take reasonable steps to accommodate the
religious freedoms of its workforce
o because Simpson Sears failed to do so, it was held to have discriminated against
the complainant
o where there was direct discrimination, employer was required to show that the
distinction was based on a bona fide occupational requirement
o where there was adverse discrimination, employer was required to show that
it complied with the reasonable duty to accommodate
for determining whether a prima facie discriminatory standard is a BFOR. An employer
may justify the impugned provision by establishing the balance of probabilities using
Meiorin test.

(b) Meiorin BC (PSERC) v. BCGSEU, [1999] 3 S.C.R. 3 (Magnet II at 838), McLachlin J.
Facts
BC established physical fitness requirements for firefighters.
Standards based on average aerobic capacity of existing firefighters, most of whom were
men.
It was demonstrated that these requirements were unnecessarily high
Analysis and Disposition
McLachlin proposes a three-part test
o (Pre) Did claimant demonstrate a prima facie infringement?
o (1) Did the employer adopt the standard for a purpose rationally connected to the
performance of the job?
o (2) Did the employer adopt the particular standard in an honest and good faith
belief that it was necessary to the fulfillment of that legitimate work-related
purpose?
o (3) Is the standard reasonably necessary to the accomplishment of that
legitimate work-related purpose? To show that the standard is reasonably
necessary, it must be demonstrated that it is impossible to accommodate individual
employees sharing the characteristics of the claimant without imposing undue
hardship upon the employer.
Could require developing a different standard entirely, or providing exemptions for
employees partic. affected.
passing aerobic std has not been shown to be reas necess to safe & efficient performance
of wk of a forest firefighter (fails pt 3); (Meiorin reinstated & compensated)

(c) Eldridge v. AG BC, [1997] 3 SCR 624 (Magnet II at 845)
Facts
Application for a declaration that the failure to provide sign language interpreters as an
insured benefit under the Medical Services Plan of BC violated s. 15(1) of the CCRF.
Appellants assert that because of the communication barrier that exists between deaf
persons and health care providers, they receive a lesser quality of medical services than
hearing persons.
Analysis and Disposition
failure to provide sign-language interpreters violates rights of hearing impaired. Extends s.
15 analysis to design of government benefit programs.
failure to provide sign language interpreters (which facially neutral) violates rts of hearing
impaired; has adverse effect on hearing impaired patients
is total denial of any sign language interpretation under any circumstances; no attempt to
accommodate hearing impaired patients; no government justification other than budgetary



(d) Affirmative Action
S.15(2) shield affirmative action programs from s.15(1) scrutiny. Could such legislation be
attacked on grounds that it is under inclusive? This was the argument raised and rejected
in Lovelace v. Ontario (p.816).

VI. S. 7: Life, Liberty, and Security of the Person

I. General

(a) Components to the Claim of Violation
Three components:
o Everyone has the right
o to life, liberty, and security of the person
o and the right not to be deprived thereof except in accordance with the principles of
fundamental justice.
To make out a s. 7 claim you have to show two things:
o that the right (life, liberty, and security of the person) has been violated AND
o that such a violation is not in accordance with the principles of fundamental
justice.
Although everyone could include natural and legal persons, Courts have held does not
apply to corporations.
Life, liberty, and security of the person are 3 distinct interests; violation of any one
can give rise to a s.7 claim.
LaForest (p. 661): s. 7 contemplates internal balancing process, a balancing of
individual and community/public interest rights. If deprivation is in accordance with
principles of fundamental justice, s. 7 right not been violated.
LaForest says that s. 7 and s. 8 are similar (s. 8 refers to reasonable search and seizure);
reasonableness or balancing achieved in s. 7 through the use of the term principles of
fundamental justice.

(b) Fundamental Justice
Drafters used phrase principles of fundamental justice to exclude substantive due
process in U.S. constitutional law; Barry Streyer (now with Fed Court) said we only want
Courts to review procedural justice.
Difference btw procedure and substance: procedural rights sometimes called natural
justice or duty of fairness. Substantive rights consider substantive fairness.
Example: Extradition - Burns: In cases where the country to which the individual may be
extradited, the Minister of Justice should receive assurances from the other country that
s/he will not be executed. There are two claims here: 1. Procedural Rightindividual
has the right to a fair trial in Canada etc.; 2. Substantive Rightindividual has the
right not to be executed Drafters thought they were importing natural justice doctrine only,
but the testimony of Streyer was given minimal weight in Motor Vehicle Reference
(1985). Court said that if they had only wanted to protect procedure, they could have
used a phrase like due process.
Fundamental justice requires substantive justice not merely procedural analysis.
See p. 664: distinction is ill-conceiveddrafters must be held to a standard of internal
consistency.
However, SCC has had a great deal of difficulty in defining meaning of term principles of
fundamental justice.
Fundamental justice requires system of administration of justice founded upon belief in
dignity and worth of human person.



(c) R. v. Morgentaler, [1988] 1 S.C.R. 30, (Magnet II at 664) Dickson C.J.
Facts
Criminal Code makes it an offence to obtain an abortion, then creates limited exceptions (a
defence): accredited hospital, therapeutic abortion committee must provide certificate
stating pregnancy endangers life or health, abortion must be performed by qualified doctor
who is not on T.A.C.
Dr. Morgentaler opened free-standing clinic (not accredited, no TAC, no investigation to
determine if pregnancy endangers life or health).
Analysis and Disposition
5-2 decision; three decisions on majority side (Dickson/Lamer, Beetz/Estey and Wilson; Dis-
McIntyre/LaForest)
Dickson C.J. (and Lamer): Considers whether there is deprivation of security of person.
Law interferes with bodily integrity of a woman; forcers her to carry foetus to term unless
she meets criteria unrelated to her own priorities and aspirations
Violation of purely physical aspect of security of the person. Also imposes severe
psychological stress law imposes delay and uncertainty, coupled with criminal sanctions.
Therefore, necessary to consider whether the law is consistent with principles of
fundamental justice.
No need to consider foetal rights in this case, because Parliament itself has determined that
foetal rights must yield when life/health of mother in danger (i.e. law itself admits balance
tips in favour of mother).
Question is whether procedure is fair. Notes many practical obstacles; many
hospitals not accredited, or no TACs
Therefore, for many women the exception in s. 251 is illusory; women who would
prima facie qualify under section cannot take advantage of it. This violates
fundamental justice on procedural grounds.
Can't be justified under s. 1 b/c means chosen arbitrary and fail all three elements of Oakes
proportionality test. Parliament has failed to establish either a standard or a procedure
whereby any such interests might prevail over those of the woman in a fair and non-
arbitrary fashion.
Beetz (and Estey)
Finds breach of security of person in delay occasioned by law. Delay creates additional
danger to womens health and must be justified. Parliament could be justified in requiring
medical opinions as to danger posed by pregnancy but this law goes beyond what is
necessary.
Requirement that abortions be performed in hospitals, that there be more then 3 members
on TAC, and exclusion of doctors whom perform abortions from TAC unnecessary.
Therefore law violates s. 7 and cannot be justified under s. 1
Wilson
Agrees on right to security of the person but goes beyond to rely on the right to
liberty (Monahan says that her reliance on liberty is a substantive rights argument)
Liberty includes right to make fundamental personal decisions w/o interference from
state.
Underlying theory of Charter is that state will respect choices made by individuals
and to greatest extent possible, will avoid subordinating these choices to any one
conception of the good life. (p. 681)
Right to terminate pregnancy falls within class of protected decisions. Therefore s. 251
necessarily limits liberty.
That theory of liberty (p. 681) has been endorsed by the majority of SCC in Blencoe (see
below).


Wilson J. also finds violation of fundamental justice in a substantive sense. Finds that
violations of s. 7 cannot be justified under s. 1 (p. 684).
DissentMcIntyre (and LaForest)
Relies on the fact that legislative debate suggests that right to abortion was not included in s.
7.

Aftermath of Morgentaler
Federal government introduced legislation that would restrict right to abortion except in
cases of danger to health or life of mother. Amendment deletes some of requirements that
had attracted criticism (accredited hospitals; therapeutic abortions)
Legislation also made it more difficult to obtain abortion in later stages of pregnancy.
SCC had left fairly wide scope for legislation. However, bill failed to pass Senate on tie
vote. Even though s. 251 was invalid and Monahan thinks there was lots of room to put in
a new law, there is no law.
Subsequently, Joseph Borowski had challenged s. 251 because it failed to protect life of
foetus (took him 8 years to get standing). Obtained standing from SCC.
Lower courts said foetus was not within s. 7 definition of everyone BUT when it got to
SCC dismissed case on grounds of mootness in 1989 (s. 251 had been declared
unconstitutional)Magnet vol I, p. 946. One of very few cases turned back b/c of mootness.
Daigle v. Tremblayman sought to obtain an injunction to prevent girlfriend from obtaining
an abortion. Court said that foetus was not protected under Quebec Charter. Provincial
laws attempting to re-impose Criminal Code restriction through medical insurance are ruled
unconstitutional on federalism grounds
Invasion of federal criminal law power (see Morgentaler, 1993, Magnet Vol. I, p. 289);
Monahan thinks Morgentaler supports s. 7 claims for medical procedural delays.

(d) Rodriquez v. British Columbia [1993] 3 S.C.R. 519, (Magnet II at 688) Sopinka J.
Facts
CC s. 241 prohibits assisted suicide (distinguished from passive euthanasia)
Sue Rodriquez brings challenge on basis of s. 7, security of the person.
Argues that it limits her right to deal w/ her body as she wishes
Analysis and Disposition
SCC unanimously agrees that s. 241 is an infringement of her right to security of the
person.
Disagreement in case is whether s. 241 is consistent with principles of fundamental justice.
Sopinka thinks it is consistent.
Relies on Morgentaler reasoning: security of person includes right to make choices
concerning ones own body.
Here the effect of s. 241 is to prevent Rodriguez from making choice about her own bodily
integrity
Focuses on distinction btw passive and active forms of assisting/hastening death. Notes
that historically, law has distinguished between passive and active forms euthanasia.
Frames issue as one of arbitrariness by asking the following Q: Is the potential
arbitrariness consistent with principles of fundamental justice?
Does law further its objective, protection of rights of vulnerable in a non-arbitrary way?
Someone could take advantage of the disadvantaged, or act out an earlier made wish after
a person had changed their mind.
Argues that there is no consensus that passive/active distinction is arbitrary. Physicians
have no choice but to accept a patients decision to withhold treatment. Nothing
approaching unanimity with respect to issue before me. (692-93). Founds his
judgment on lack of a societal consensus. [!!!!]


McLachlin [dissent] (LHD concurring)
Focuses on distinction between suicide and assisted suicide. She agrees that the key
question is whether this distinction is arbitrary. Again arbitrary is defined by its Rational
connection to objective behind the legislation.
Turns case into a s. 15 case. Argues there is no justification other than floodgates
argument. Fear is that disabled persons will be murdered, or pressured to agree to end
their lives, and that really this is therefore a s. 1 argument.
Sue Rodriguez is asked to bear the burden of the chance that other people may act
criminally in similar situations. She is asked to serve as a scapegoat. (695) It is a utilitarian
argument, where Rodriguez is a means to an end, and therefore this should be a s. 1
consideration, NOT a s. 7 analysis.
Also rejects the passive/active distinctionsince the end result of death is the same.
Criticizes Sopinkas consensus argumentCourts are not in position to determine this;
Parliaments job. Courts are supposed to find decisions on principle.
Case leaves us with an unclear sense of what is meant by principles of fundamental justice,
other than arbitrariness concept that requires rationality/fit between purpose and means.
Motor Vehicle Ref: If a law violates s. 7, it can only be justified under s. 1 in the most
exceptional circumstances. There may have been a single casewhat about the Asani
case??? The Oakes test would only be used in the most exceptional circumstances.
S.7 protects you not only from actual pain/suffering, but also threat of having actual/pain or
suffering inflicted on you (especially if it is absolutely certain). One should not have to wait
until one actually experiences/suffers the infringment. See Morgentaler, where Dickson
said threat of complications w/ pregnancy was itself s. 7 violation.

(e) Scope of Protected Interests in s. 7
Debate over whether s. 7 extends to economic rights. Courts tended to reject argument s.
7 can be used to protect purely economic rights. E.g. challenges to rent controls rejected,
or Walker v. PEI where C.A.s brought challenge, also unsuccessful; challenge to reduction
in welfare rates(Masse v. Ont), leave to appeal was denied.
At the end of October 2001, case of Gosselin v. Quebec challenged Quebec law (s. 15 and
7 arguments) - Quebec rules for social assistance meant Ms. Gosselin was deprived
of resources needed to have necessaries of life and that s. 7 security of person
includes access to resources necessary to live ones life. Case is now under
reserve.
Challenges to social welfare schemes have been brought under s. 15 (i.e. that the structure
is unequal), but no successful challenges under s. 7 for a positive right to economic
resources.
Lamer has attempted to argue that s. 7 liberty interest is limited to physical liberty; see Re
B (Magnet 704). However, there is a broader view of what is meant by liberty on SCC.

(f) R.B. v. C.A.S. [1995] 1 S.C.R. 315 (Magnet II at 698) LaForest
Facts
The appellants' child required a blood transfusion to which they objected on religious
grounds.
The Children's Aid Society was granted temporary wardship so that the child could receive
the required medical treatment.
The order was then terminated and the child was returned to her parents. The parents
argued that provisions of the Child Welfare Act were contrary to sections 7 and 2(a) of the
Canadian Charter of Rights and Freedoms.
In Re. B. parents argue a violation of their liberty interest to make parental choices.
Analysis and Disposition


Lamer: no threat to physical liberty, parents physical liberty not being threatened, therefore
no liberty argument;
LaForest (Gonthier, McLachlinLHD concurred on s. 7 issue): Must first consider whether
there has been a s. 7 violation. If so, decide whether it can be justified through principles of
fundamental justice
argued that liberty includes rights to make decisions that are fundamental personal
importance. Section 7 does apply [Negative liberty argument: freedom from state
intervening, as opposed to positive liberty, right to call upon the state to enforce/support a
conception of how I want to live]. Relies on Wilson Js reasoning from Morgentaler
privacy right issue.
Decisions about raising children are within this protected sphere (Iacobucci and Major
disagree in part, saying that such a liberty can never apply to a decision to deny medically
necessary procedure to child).
BUT finds that violation of liberty is in accordance with fundamental justice, b/c
procedure was fairorder was made pursuant to procedure in accordance with
principles of fundamental justice.
Balancing of childs and parents interests; state has a parens patriae interest in protecting
rights of child; ultimately, s. 7 analysis has a component of balancing.

(g) Godbout v. Longueuil [1997] 3 S.C.R. 844 (Magnet II at 707) La Forest J.
Facts
The City passed a resolution requiring all new permanent employees to reside within City
limits. Godbout, a former City employee, had signed a declaration agreeing to live in the
City during her employment. Failure to do so was grounds for dismissal. One year later,
she moved to Chambly. She was fired after refusing to move back to the City. The
Quebec Superior Court dismissed her action for reinstatement and damages against the
City on the basis that the residency requirement did not violate the Quebec Charter, and
the Canadian Charter of Rights and Freedoms did not apply.
Issue whether Charter applies to municipalities. Court unanimously of the view that it does.
Analysis and Disposition
LaForest (w/ LHD and McL): applies analysis from Re B (6 justices agreed on s. 7 liberty
analysis only Lamer disagreed); and Morgentaler decision also supports liberty and its
relationship to fundamental choices. [Majority found their judgment on Quebec Charter]
Says decision of where to live is a decision of fundamental personal importance.
Also violates principles of fundamental justice. Requires a balancing of objectives
against limits. Interests of the claimant balanced against interests of state.
Balancing process will necessarily be contextual, i.e. have to look to particular
context, to the particular interests at stake, namely: the particular circumstances of
the claimant, as well as the particular interests/circumstances of the state claiming a
limitation. Case-by-case analysis.
What are the objectives that the state is relying on?
1. IF you live in the city, be better acquainted and therefore better able to serve; thats a nice
goal, but is not justification for violating s. 7. Benefits (being so intangible) are less (c.f. to
clearly felt restrictions) than the harms in LaForests view.
2. Municipality might have economic interests; again, LaForest not persuaded.
3. Residence requirements justified when employees function is urgent, and requires them
to respond quickly. LaForest thinks this is close, BUT law applies to all employees so this
justification is also not satisfactory.
Goals do not justify limit on rights: fairly quick analysis here, less rigorous than Oakes.
Hogg: criticized reasoning b/c principles of fundamental justice balancing seems import
legislative role to Courts.



(h) Blencoe v. BC (HRC) [2000] 2 S.C.R. 307 (Magnet at 726) Bastarache
Facts
Prominent BC cabinet minister, Robin Blencoe, accused of sexual harassment against
assistants; they filed complaints w/ BCHRC.
Blencoe dismissed from cabinet, unemployed, had to be put under doctors care, moved to
Ontario, tried to get work here, could not.
Hearing scheduled 30 months after complaint filed. Blencoe alleges violation of s. 7 rights.
Analysis and Disposition
Majority (Bastarache, McL, LHD, Gonthier, Major) affirms broader conception of liberty
(Wilson in Morgentaler, and LaForest in Re. B and Godbout) as including right to
make fundamental personal choices but no violation on facts of this case. Right to
make fundamental choice not infringed by suffering allegations.
On security of person, affirms that severe psychological stress may involve breach
of security of person. However, deprivation must be caused by state action; here
delay was not primary cause of stress, the allegations themselves and
accompanying media coverage (much of which occurred before delay) was real
cause.
Blencoe argues that delay exacerbated his stress, but Court says that psychological stress
can only involve breach of security if it involves interference with fundamental personal
choices. Only in exceptional cases (Rodriguez, Morgentaler, Re. Bdecisions about ones
body or custody of ones children) but stress, anxiety, and stigma that result from
administrative civil procedure are not included.
Fundamental choices are under Wilsons definition of liberty, but in terms of security of the
person, stress is also affected by a limiting of fundamental choices.

(i) Two Limits to Claims Based on Psycho Stress:
(1) Deprivation must be caused by state action here the delay was not the cause of the
stress (allegations were the cause; wasnt induced by the state)
[Blencoe then argued the delay exacerbated his stress]
(2) Psycho stress can only involve breach of sec if it involves interference w/ fundamental
personal choices. Its only in exceptional cases where state interferes w/certain personal
choices of an individual that state-caused delay in HR proceedings cld trigger the s.7 sec of
person int

Hypothetical
Can delays in providing access to medically-necessary services (i.e. cancer treatment) be
attacked on basis of violation of s. 7?
Consider recent Ontario case of Ralph Smith, diagnosed with prostate cancer, who was
told he would have to wait 3-4 months for surgery (even though the medical community
says it should be done within 3-4 weeks).
Smith forced to go to U.K. for surgery (which did in the sense that he is still alive, save his
life). He wanted to get reimbursed by OHIP, but they said no because we dont think 3-4
months is too long to wait. He brought a claim before an administrative tribunal. Could he
have raised a s. 7 claim? How would it be structured?

VI. Freedom of Expression

1. The Courts Approach

(a) Irwin Toy Ltd. v. Quebec (AG), [1989] 1 SCR 927 (Magnet II at 435)


Facts
S. 248 and 249 of the Quebec Consumer Protection Act prohibited commercial advertising
directed at children under 13, subject to exceptions provided for in the regulations.
At issue was whether the relevant provisions offended s. 2(b) of the Charter.
The Court had the occasion to consider the degree of protection afforded commercial
expression under s. 2(b).
Analysis and Disposition
Dickson (Lamer and Wilson JJ concurring): First step was the Ps activity within the
sphere of conduct protected by freedom of expression
not all activity is protected by freedom of expression for example, does not include the
right to strike
expression has a contact and a form activity is expressive if it attempts to convey
meaning. The meaning is its content
cannot exclude human activity from the scope of guaranteed free expression if it has
expressive content, it falls prima facie within the scope of the guarantee
content of expression can be conveyed through an infinite variety of forms
the advertising amis to convey a meaning and cannot be excluded as having no expressive
content. Nor is there any basis for excluding the form of expression chosen from the
sphere of protected activity.
second step does the purpose or effect of the impugned govtal action control
attempts to convey meaning through that activity (does it infringe s. 2 of the
Charter)?
o (a) look at purpose if the purpose is to restrict a form of expression in order to
control access to the meaning being conveyed, it also limits the guarantee
o where the govt aims to control only the phys consesquences of certain human
activity, regardless of the meaning being conveyed, its purpose is not to control
expression
o (b) look at effects even if the govts purpose was not to control or restrict
conveyance of meaning, Court must still decide whether the effect of the govt
action was to restrict the Ps free expression. Principles include
(i) seeking and attaining the truth is an inherently good activity
(ii) participation in social and political decision-making should be fostered
and encouraged
(iii) diversity in forms of individual self-fulfillment and human flourishing
outght to be cultivated in an essentially tolerant, welcoming environment, not
only for the sake of those who convey the meaning, but for those who
receive it.
no question that the purpose of the impugned sections was to restrict both a
particular range of content and certain forms of expression in the name of children.
Third Step - Such a prohibition can only be justified if it meets the test under s. 1 of
the CCRF and s. 9.1 of the Quebec Charter.

(b) R. v. Keegstra, [1990] 3 SCR 697
Facts
Keegstra was high school teacher until dismissal in 1984. Charged with unlawfully
promoting hatred against an identifiable group by communicating anti-semitic statements to
his students
Teachings attributed various evil qualities to Jews. Described as treacherous, subversive,
sadistic, money-loving, power hungry and child killers who seek to destroy Christianity and
are responsible for depressions, anarchy, chaos, wars, and revn, and created Holocaust to
gain sympathy.


Analysis and Disposition
Applied Irwin Toy test. First stage of Irwin Toy satisfied - The meaning Keegstra
conveyed fell within the realm of s. 7
Second stage of Irwin Toy satisfied s. 319(2) (under which K was charged) seeks to
prevent communication of expression and hence meets the second requirement of the test
Suppression must be justified under s. 1 - Section 319(2) of the Criminal Code infringed
section 2(b) of the Charter; and section 319(3)(a) infringed section 11(d). However, they
were justified under section 1. The statutory infringement served a sufficiently important
legislative objective; it was proportional, and rationally connected, to the objective; and the
impairment was not excessive (Oakes test).

(c) R v. Zundel, [1992] 2 SCR 731 (Magnet II at 452)
Facts
accused was convicted of knowingly publishing a false statement which was likely to cause
injury to a public interest contrary to s. 177 of the CC.
accused circulated pamphlet which denied the existence of the Holocaust
Analysis and Disposition
The court applied the test in Irwin Toy and found that the expression did meet both
tests. Court turned to examination of justification under s. 1 using the Oakes test
and found that the law was unconstitutional.
Per La Forest, L'Heureux-Dub, Sopinka and McLachlin JJ.: Section 181 of the Code
infringes the guarantee of freedom of expression. Section 2(b) of the Charter protects the
right of a minority to express its view, however unpopular it may be.
All communications which convey or attempt to convey meaning are protected by s. 2(b),
unless the physical form by which the communication is made (for example, a violent act)
excludes protection. The content of the communication is irrelevant.
Section 181, which may subject a person to criminal conviction and potential imprisonment
because of words he published, has undeniably the effect of restricting freedom of
expression and, therefore, imposes a limit on s. 2(b).
those who deliberately publish falsehoods are not, for that reason alone, precluded from
claiming the benefit of the constitutional guarantees of free speech.
Section 181 of the Code, unlike s. 319 at issue in Keegstra, is not justifiable under s. 1 of
the Charter.
Although the application and interpretation of objectives may vary over time, new and
altogether different purposes should not be devised.
Here, while s. 181 may be capable of serving legitimate purposes, Parliament has identified
no social problem, much less one of pressing concern, justifying it.
The provision originally focused on the prevention of deliberate slanderous statements
against the nobles of the realm to preserve political harmony in the state.
Even if the Court were to attribute to s. 181 the objective of promoting racial and social
tolerance and to conclude that such objective was so pressing and substantial as to be
capable of overriding a fundamental freedom, s. 181 would still fail to meet the
proportionality test which prevailed in Keegstra.

(d) Butler v. the Queen [1992] 1 SCR 452 (Magnet II at 475)
Facts
The appellant owned a store which sold and rented hard-core pornographic videotapes and
magazines.
He was charged with several counts of selling obscene material and possessing obscene
material for the purpose of distribution.
At trial, the appellant was convicted on some of the charges and acquitted on others.


The trial judge held that the obscene material was protected by section 2(b) of the
Canadian Charter of Rights and Freedoms.
He held that only materials which contained violence or cruelty intermingled with sexual
activity or which were otherwise dehumanizing were legitimately proscribed under section 1
of the Charter.
Analysis and Disposition
The definition of obscenity contained in section 163(8) of the Criminal Code provides an
exhaustive test of obscenity with respect to publications and objects which exploit sex as a
dominant characteristic.
In order to determine whether the exploitation was "undue", the court must apply the
community standard of tolerance test and determine what Canadians would not
tolerate other Canadians being exposed to on the basis of harm that may flow from
such exposure
The court held that section 163 of the Code which prohibited certain activities infringed
section 2(b) of the Charter. The infringement, however, was justified under section 1 of the
Charter. Court applied the Oakes test.
The definition of obscene in section 163(8) of the Code prescribed an intelligible
standard. Avoidance of harm to society which was the objective of section 163 was a
sufficiently pressing and substantial concern to warrant an infringement on section 2(b) of
the Charter.
There was a sufficiently rational connection between the criminal sanction and the
objective.
The provision only prohibited the distribution and exhibition of sexually explicit material that
was violent, and degrading or dehumanizing.
There was no alternative measure to protect the societal values at stake.

(e) Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 SCR 1120
(Magnet II at 487)
Facts
Appeal by the federal Crown from a finding that seizure by Canada Customs of materials
sent to Little Sisters Book and Art Emporium infringed the Canadian Charter of Rights and
Freedoms.
Little Sisters imported gay and lesbian erotica.
The material was detained pursuant to the Customs Tariff, which prohibited importation of
obscene materials as defined in Criminal Code.
Section 152(3) of the Customs Act placed a reverse onus on Little Sisters to establish its
compliance with the Act and regulations.
The trial judge found that Customs officials had wrongly delayed, damaged, prohibited or
misclassified Little Sisters's materials in a systemic targeting of the store's importations.
He declared that the Customs Act had at times been applied in a manner contrary to
Charter sections 2(b) and 15(1).
He also found that the Customs Act infringed section 2(b) of the Charter, but was justified
under section 1. The Crown appealed to the British Columbia Court of Appeal, and then to
the Supreme Court of Canada.
Analysis and Disposition
Appeal allowed, in part.
Little Sisters had the right to receive expressive material unless the state could justify a
denial of that right.
While it is true that under s. 163(8) the "community standard" is identified by a jury
or a judge sitting alone, a concern for minority expression is one of the principal


factors that led to adoption of the national community test in Butler in the first
place. The Canadian community specifically recognized in the Charter that equality
(and with it, the protection of sexual minorities) is one of the fundamental values of
Canadian society. The standard of tolerance of this same Canadian community for
obscenity cannot reasonably be interpreted as seeking to suppress sexual
expression in the gay and lesbian community in a discriminatory way. Butler
validates a broad range of sexually explicit expression as non-harmful.
It was clearly open to the trial judge to find, as he did, that the appellants suffered
differential treatment when compared to importers of heterosexually explicit
material, let alone more general bookstores that carried at least some of the same
titles as the appellant bookstore. Moreover, while sexual orientation is not
mentioned explicitly in s. 15 of the Charter, it is clearly an analogous ground to the
listed personal characteristics. The appellants were entitled to the equal benefit of a
fair and open customs procedure, and because they imported gay and lesbian
erotica, which was and is perfectly lawful, they were adversely affected in
comparison to other individuals importing comparable publications of a
heterosexual [page1125] nature. On a more general level, there was no evidence that
homosexual erotica is proportionately more likely to be obscene than heterosexual
erotica.
However, the Constitution did not prohibit border inspections.
Parliament could create government machinery to detain obscene materials that were the
subject of criminal penalties.
Customs legislation, on its face and in its effects, did not contemplate differential treatment
based on sexual orientation.
A failure at the implementation level, which clearly existed here, could be addressed
administratively, and did not render the Customs Act unconstitutional.
With the exception of the reverse onus provision in section 152(3), which violated section
2(b) of the Charter, the Customs Act was justified under section 1.

(f) R v. Sharpe, [2001] 1 SCR 45 (Magnet II at 499)
Facts
Appeal by the Crown from a decision of the British Columbia Court of Appeal that section
163.1(4) of the Criminal Code, which prohibited possession of child pornography, was
unconstitutional.
The accused Sharpe was charged under section 163.1(4). Prior to his trial, Sharpe brought
a motion challenging section 163.1(4) on the basis that it violated his freedom of expression
guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms.
The Crown conceded that the provision violated section 2(b) but argued that it was saved
by section 1 of the Charter.
The trial judge and the majority of the British Columbia Court of Appeal held that the
provision was unconstitutional.
Analysis and Disposition
The possession of child pornography was a form of expression protected by s. 2(b) of the
Charter. Criminalizing the possession of child pornography that posed a reasoned risk of
harm to children was a pressing and substantial objective.
The means chosen by Parliament were rationally connected to this objective.
However, the provision did not constitute minimal impairment insofar as it applied to written
materials or visual representations created by the accused alone and held exclusively for
personal use, or visual recordings created by or depicting the accused that did not depict
unlawful sexual activity and that were held by the accused exclusively for personal use.


These two categories of material would not be generally considered child pornography and
posed little or no risk of harm to children. Therefore, these categories were to be read in as
exceptions to the definition of child pornography in s. 163.1.

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