Canadian Constitutional Law Lecture 1 Week 1: Wednesday

What is the Consti?

Written and unwritten rules and principles that govern all institutions
Prescribes powers of the State and seeks to protect the values of the nation
Allocates power exercised by State between prov govt and fed govt
In Canada, consti does more than divide powers, our federalism protects cultural, linguistic
and regional diversities (before and after the Charter)
Framework for how we run our country by which govt operates
Our constitution has 2 overarching key aspects: 1) federalism (only issue pre 1982); and
2) limitation on govt power through the Charter (protects us from lawless govt trampling on
rights and freedoms)
Constitution has written and unwritten elements.
Written: Canada does not have one single constituting constitutional document. We have
defn in 52(2) of constitution; which applies when the term the constitution is used in the
actual document (Consti Act of 1982).
o 52(2) Our Consti is a conglomerate of material. This includes 3 categories of
instruments:
1) Canada Act 1982;
2) List of 30 odd acts and orders which are listed in a Schedule to the Consti
Act 1982 including the Consti Act 1867 (BNA; did only what was necessary to
accomplish federation) and all amendments made to that, various orders in
council, various statutes that created new provinces and Statute of WM;
3) Any amendments made to consti post 1982
Consti Act 1867
Did not contemplate independence from UK (did not mark any significant break from
colonial past) therefore still Brit colony
Reason stated in Preamble: under the Crown of UK and Ireland, with consti similar to UK
What are the implications of this: it basically says that new federation wants old rules to
continue from Britain. A great amount of our constitutional law is actually found in sources
unrelated to consti act 1867 (how cabinet functions, how gov general acts are governed by
conventions)
No amending formula: deliberate choice: framers of our consti contemplated that UK
would be involved or lead any change and amendment to our consti. Cannot say that this
was an oversight but rather done intentionally.
No separation of powers: modeled on UK system of responsible government. If you look
at consti act 1867/1982 there is no actual reference to: responsible govt, PM and his role,
parliamentary privileges on how parliament operates, setting out composition of executive
and their relationship to legislature. These are all encapsulated in the phrase: consti
similar to UK
If you read consti literally, it seems all power is vested in the Queen (ex. s 9 vests power
in the Queen, confers power on Gov Gen but actual office of Gov Gen is not defined or
created in consti. No rules that govern apt or tenure of Gov Gen. Assumption is that we will
fill the role based on UK principles. Office of Gov Gen is technically still appointed by the
Queen

No Supreme Court: s101 gives auth for the establishment of general COA for the country
but nothing in consti actually establishes the SCC. It was regarded as natural and obvious
that the highest court in UK would be Canadas Supreme Court. JCPC (Privy Council)
would be final level of appeal. JCPC is not mentioned anywhere in consti either. Until 1949
we still have sound case law that comes from JCPC
In 2014, Jurisdiction and power of SCC exists through an ordinary statute of parliament.
No Bill of Rights in 1867: framers would have had US Bill of Rights as precedent so this
was not an oversight. There was still protection of rights in this consti though. The minority
language rights could not be avoided (s 93, 133).
Section 91 and 92: lay out heads of power to fed and prov govt.

Consti Act 1982:

Made important repairs to Can consti law
3 key aspects:
o 1) Ended british power to legislate for Canada
o 2) Provided an amending formula; we can amend our constitution
o 3) Entrenched rights in Charter of Rights and Freedoms
This is not a revised or replacement to 1867 BNA, rather it is an add on and arguably made
the landscape more complex.
S 52(2) defn of consti: many things listed in Schedule are actually Acts of UK. The use of
the word Includes in this section is significant because it signals that our definition of the
constitution is not closed and is NOT EXHAUSTIVE. Framers of consti could not have
made this mistake as an oversight. This means that this list is not closed. Since the
promulgation of 1982, the SCC has added to the things that make up our consti.
o In 1993 New Brunswick Broadcasting v Nova Scotia: SCC said that defn in 52(2)
is not exhaustive. C Held: Unwritten doctrine of parliamentary privilege should be
included in the def of the consti. Even though there is no mention of privilege in the
section. This is a surprising holding because everything else in 52(2) is an actual
written document. Facts: Case involved challenge by NBB to its exclusion from the
floor of the legislature in NS. The NBB wanted to be able to put news cameras
inside the legislative assembly and NS said no we dont want these recorded. This
was challenged on the basis that this went against freedom of information. By saying
that the unwritten doctrine is included in the constitution this insulates it from
constitutional review.
o In 2003 ODonohue v Queen: Facts: application that the Act of Settlement 1701
was unconstitutionalno person of non roman catholic descent can ascend to the
throne of England. SCC added document to that defn. Started as appeal seeking
declaration that provisions of UK document discriminated on the basis of religion
and violated equality agreement in Charter. Roman Cath could not succeed to the
throne of England. Court struck out appeal but did so on grounds that the act of
settlement was part of consti therefore you cannot use Charter to invalidate these
rules. The court following from New Brunswick held that this document should be
included under defn of 52(2) because rules for succession of the Crown should be
essential to our consti because we share the monarch with plethora of other
commonwealth countries. Therefore S 52(2) is open for expansion.
Unwritten Aspects of Consti:

Parliamentary privilege: gives power to parliament and governs how parliament functions
on daily basis. It is essentially part of common law bc courts decide on its existence. It is a
special branch of common law because it is part of consti and not subject to the Charter
Case Law: judgments that pronounce on consti law:
o SCC has not hesitated to find unwritten principles; unwritten principles that
underlie the text of the Constitution Acts
o Judicial Independence: REFERENCE re: Remuneration of Judges: SCC said
that unwritten principle of judicial independence is in the consti. Justice La Fare
(dissent): without recourse to textual authority, you should not be promulgating on
consti principles. There is a tension between judges on whether unwritten rules
should be allowed to be flexible
o Re Secession of Quebec: SCC held that federalism, democracy, constitutionalism
and rule of law, and respect for minorities are all unwritten principles that effect
secession of Quebec from Canada
Crown prerogatives- not going to discuss this.
Constitutional conventions: rules that are not enforceable by courts but prescribe how
certain legal powers should be exercised. Some can transfer legal auth and power from the
legal power holder to another institution. 1867 confers power on GGen, but convention
confers that power to govt/Queen
S 55 of 1867: gives power to Queen/ GGen withhold royal assent, but consti convention
says that royal assent will never be upheld.
No legal remedy for breach of consti convention: cannot go to court for this

Amending the Consti: formula not on exam but just know that they exist
Certain times when you have to know or understand that what the govt is seeking to do is
unconsti therefore need to amend consti before they can do it
General Amending formula s 38: often called the 7/50 rule deals with most cases. In
order to amend, you have to have consent of parliament of Canada, as well as maj of
provinces constituting 2/3 of provinces (at least 7) and total popln must add up to at least
50%. Allows provinces to opt out if changes rights of province if you werent the one of 7.
Unanimous Consent s 41: unanimous consent of all provinces: if changing office of
Queen, Gov Gen, Change number of Sentators, composition of SCC and any amendment
to amending formulas of consti
Bilateral Procedure s 43: allows fed govt and affected provinces to agree to change
something
Federal Unilateral s 44: for things that affect only the federal govt with no impact on
provincial powers at all
Provincial Unilateral s 45: only consent of province affected, for matters strictly provincial
and not governed by any other amending formula
S 42: states things that are to be used the general amending formula. Why wouldnt these
be caught by s 38. S 38 (2-4) do not apply (which allow opt out) therefore included in
that provinces cannot opt out. Otherwise s 42 would be completely redundant.
Regional Veto statute: referendum in 95, fed parliament enacted statute to give Quebec a
veto over general amending formula: this statute indirectly accomplishes the veto by
making it a stat requirement that no minister can propose consti amendment unless this

agreement is accomplished. Agreement must be of Ontario, Quebec, British Columbia,

Alberta, 2 or more Atlantic provinces, 2 or more of the prairie provinces, etc
This makes the consti much more difficult to amend because of the veto power. Before this
act was passed, parliament could have passed amendment recognizing Quebec as
independent. Now because of this it is infinitely more difficult to amend consti
Was this a good thing or knee jerk reaction that is unwise and makes it difficult to make
substantive change.

Amending Constitution s 38-45

Would having at least one member of the SCC being aboriginal require consti amendment?
The SCC is not in the constitution so you cant use the amending formula to change
something that is not in the constitution. If so, what section would you use
S 41(d): amendment by unanimous consent for the composition of the Supreme Court of
Canada
S 101 gives govt auth to create SCC, but SCC is not constitutional actor. Peter Hogg is of
the view that sections of amending formulas that talk about SCC are ineffective because
SCC is not constitutional actor.
In Meech Lake and Charlottetown attempts to have entrenched SCC into consti. Would
the SCC insert itself into the consti (because it is a non exhaustive list). They could argue
that SCC Act is a consti document under 52(2).
Background to Quebec Secession Reference:
Issue: whether or not Quebec could secede unilaterally. Could Quebec on its own
decide it was going to quit Canada, as 1 part of a whole?
Canada has neither judicial decision nor express text to the same effect (undivided,
indissoluble union) no formula for the unwinding of union. There is no authority for
unilateral secession.
Absence of specific formula suggests that unilateral secession is not possible even
though consti is silent on this issue.
Therefore must look to unwritten rules that govern Canada
1980 Referendum: Quebec:
Fed govt promised no continuation of status quo if they voted against the referendum
All provinces except Quebec agreed to consti 1982. Govt of Qu did all it could to opt out of
new consti. S 33 of Charter is notwithstanding clause (enacting legis notwithstanding the
charter)
Consti was patriated and Qu was left out and series of failed conferences (ex. Meech lake
would have recognized Qu as distinct with veto), this was not ratified
Charlottetown defeated: first consti discussion to include first nations in consti
Cumulative failure of these 2 accords led to resurgence of separatist movement
1995 Referendum: Quebec:
50.6 NO and 49.4 YES
Case: Re Secession of Quebec:
Started bc: Heberton wanted injunction to stop 95 referendum from going forward and
asked for Bill 1 be renacted because it was unconstitutional.

 Private litigation gets transformed into reference of federal govt

Quebec took position that Canadian courts had no jurisdiction to hear the issue
3 questions put to court:
1. Under consti can the National Assembly, legislature or govt of Quebec effect secession
unilaterally? only focus on this one.
2. Under international law can Quebec secede unilaterally
3. If yes, conflict between domestic and international law what will supersede?
Can Quebec unilaterally Secede?
Consti is silent on this so maybe we have to apply the amending formula.
Court recognizes the unwritten principles of consti: federalism, democracy,
constitutionalism and ROL, respect for minorities
Legality and legitimacy are linked, and changing social and political values are crucial
Comes back to what confederation is: colonies wanted to unite and significance of this
cannot be overstated. Historical desire to be a federal union
Decision to adopt FEDERALISM is crucial
Consti act of 1867 was act of nation building and our independence from UK was achieved
from legal and political evolution and adherence to the ROL and stability
Para 48: evolution of consti arrangements, adherence to ROL (this brings together the
unwritten rules of consti) These are symbiotic and not hierarchical
Consti as a whole is living changing tree that grows and changes as its people
(society) grow and change. These 4 values grow with it. These principles are symbiotic;
they do not trump one another:
FEDERALISM:
Provinces coming together was a mutual agreement ; part of the reason for federalism was
because of Quebec.
Mechanism by which diversity could be achieved
Allows us to pursue collective goals (ie. French & English) but maintain cultural minorities
In Patriation reference: 2 dissenting judges talk about federalism as dominant principle
In Re Secession: no single dominant view or principle they are all equal; one does not
trump the other
DEMOCRACY:
Baseline against which the framers of consti have always operated and continue to operate
Assumed in consti therefore not mentioned to be redundant
Democracy: representative and responsible govt, citizens to participate in political process
Underlies the legitimacy of our political culture and interacts with ROL
The will of the maj cannot be seen to override the minority groups
It would be a mistake to equate legitimacy with majority rule (maj in province can be
minority compared to country as a whole)
CONSTITUTIONALISM AND ROL:
Promises stable, predictable ordered society
Shield from arbitrary govt decisions
Constitutionalism understands that costi is supreme law of land and anything that is
contrary to consti is of no force or effect
Consti is entrenched BEYOND maj rule

3 reasons: 1) consti may provide safeguard for human rights; 2) ensure that vulnerable
minority groups are endowed with necessity against assimilative maj; and 3) division of
power
There is a misunderstanding of popular sovereignty and essence of constitutional
democracy. Canada has never accepted simple majority because it requires enhances
maj to ensure that minority interests actually have to be taken into account and respected
and reconciled
PROTECTION FOR MINORITIES:
Entrenched in 1867 and 1982 in Charter
Before 1982 there was language rights
Now, individual and abo rights in Charter
Specific to abo: para 82: s 35 explicit protection for existing abo and treaty rights, etc.
RESULT OF CASE:
No unilateral right to secede because it is unconsti
We cannot ignore a clear expression of a will to secede, there is a duty on other members
of confederation a DUTY TO NEGOTIATE the terms of the secession. Cannot ignore the
fact that QU does not want to be a part of Canada
Conduct of negotiations have to be governed by the same consti principles that give rise to
the duty to negotiate in the first place (fed, dem, consti ROL and minorities)
This has to be SUBSTANTIAL NEGOTIATION, not just logistics of leaving
2 majorities (QU v REST OF CANADA) must negotiate
The court did not specifically define the specifics of the process of the negotiations. This is
left to the politicians because it is not a judicial role
Both sides projected publically that they won
Fed govt used this to show that unilateral secession could not occur
Consequence of this is the clarity act.
The Clarity Act:
Direct result of the Re Secession of Quebec Reference
Picks up on SCC insistence that determination of whether a referendum yielded a clear
maj was a political matter
Must be clear
Fed govt enacts this act and it is arguable as to whether it clarified anything at all
Clear maj: in opinion of HOC the question would result in the clear expression of the
will of the population of the province at issue
Clear question: s 1(3)
Question is not clear if it envisages economic or political arrangements that are obscure
Act does not prohibit provinces from having referendums that are unclear
It leaves to HOC to whether there is a clear majority. It has regard to the
percentage/size of majority and voters as well as any other matter it considers relevant.
It defines unclear but does not actually define a clear majority stricty. It provides a
formula
HOC must take into account: size of maj, any other matters it considers relevant
If unclear, govt prohibited from entering into negotiations for secession
2(2): formula for determining clear majority:

Lisa agrees that you need to take account of size and percentage of voters. Is this a clear
maj if the province votes 75% yes but only 25% of the province votes. Probably not. All it
really means is that unless it is beyond doubt that question is clear and result is clear,
probably end up back at court to argue what is defined as clear
Some commentators have suggested that consti amendment is not even sufficient. The
change that would be required is a change of such magnitude that it would require a
completely new consti structure and not amendment.
Also leaves open possibility for aboriginal peoples (can they secede if quebec can)
If things like federalism are so much a part of our history and one of the partners to
confederation just leave, where does this leave Canada
Not just limited to Quebec, there are other issues with other provinces having their own
identities.

Canadian Constitutional Law: Lecture 2 Week 1: Friday

INTERPRETATION OF THE CONSTITUTION:
3 Ways Claims appear before the SCC
1. Personal Standing: individual is affected by something and they argue that the result is
unconstitutional. Client must be directly involved with the problem before the court. Lawyer
brings on behalf of client. Ex. Gay couples bringing claim for same-sex marriage
2. Public Interest Standing: not individual but in public interest to bring question. 3 things
must be satisfied: 1) serious issue raised as to invalidity of legislation; 2) is the P directly
affected or have a genuine interest in (in)validity of the legislation; AND 3) no other effective
means of bringing matter before the court. Ex. if individuals are directly affected then these
individuals can bring the litigation therefore court will deny PI. More prevalent with Charter
cases because you cannot bring a claim that someone elses rights have been violated.
3. Reference Jurisdiction: SCC Act confers this jurisdiction to the SCC for advisory
opinion on whether something is or is not constitutional. Only the feds can direct a
reference question. Prov Govt have similar ref jurisdiction for reference cases to provincial
court of appeal. The court is engaging in an advisory opinion but this is not the traditional
role of the court. The reference case lacks the adversarial content that typically is found in
cases before the court.
Touches on fundamental purpose of judiciary: arbiter of disputes. Court is there to function
in the concrete world. The giving of advice is the function of the Attorney General. You are
conferring an executive role on the judicial branch. It can violate the seperation of powers
because you are vesting the SCC with an executive or opinion function.
Conferring original jurisdiction on an appellate court: not raised until Secession ref (1995).:
Court held on exceptional basis appellate court can receive orig jurisdiction unless it is
incompatible or inconsistent jurisdiction with the appellate. This was challenged earlier in
1912: JCPC Lordships acknowledged that ref jurisdiction is not judicial but nevertheless
this function can be upheld (it was OK). Ref qs and answers are ADVISORY ONLY AND
NOT BINDING (stare decisis does not apply). Your reference cases dont become binding

precedent to cases and the govt is bound to act upon SCC. The challenge in 1912 was
upheld in Succession ref.
The fact that we can confer exec functions on jurisdiction shows that we do not have
hardcore strict separation of power because we have invested our judiciary with executive
function.
The opinion of SCC is no more valid then ie AG.
There have not been any cases where govt has acted contrary to a reference opinion.
The court has discretion to refuse to hear the question: it doesnt have to take the
question to govt: 1) question/ the issue is not yet right (premature); 2) question has become
moot (no longer a live issue); 3) question is not technically a legal one. Or if q or evi is too
vague or uncertain to admit concrete legal answer or not enough information before the
court (maybe needs to be greater factual record or actual legislation)

Case: REFERENCE RE: THE UPPER HOUSE (1980)

At issue: purely hypothetical issue; parliament hadnt drafted any legislation yet.
Q: Can fed govt abolish the Senate?
Q: Can fed govt alter Upper House (fairly significant changes).
Change method by which members are chosen: to give HOC auth to select certain
members from each province. Providing for direct election of senate by public at large (very
different system then what we have)
Fed govt argued that it had the auth to do this as a result of s 91(1) of the consti
91: gives fed govt gives enumerated list of powers. In 1949 consti was amended by UK to
include 91(1), which is not repealed. It provided small window of ability for fed govt to
amend the consti.
91(1): fed govt had power to amend form time to time the consti of Canada except for
certain things/ matters specifically assigned to the provinces (s 92) (re: schools or use of
Fr/Eng or 5 year limit on parliament)
In 1980, this section gave fed govt the ability to amend. In interpreting 91(1) the only limits
should be the ones expressly stated in the section itself. They argued that this section was
similar to parallel section in 92(1), which gave provinces an ability to amend provincial
constitutions to eliminate the Upper House.
The provinces argued that the fed govt could not unilaterally change the Senate. Looked
to preamble (talked about the union) and federalist principles more generally. The Senate is
a fundamental aspect of federalism that guarantees equal representation to the provinces
(equalizing force). When s 91(1) uses the word consti of Canada- Canada meant the
federal union. Abolishing the Senate changes the nature of the federal/provincial
relationship.
The court looked at q1 and looked to a number of different things to interpret what s 91(1)
meant. Looked at the preamble, the recitals, and from that they say the preamble talks to
the importance of federalism and the country being formed by the coming together of the
different part. The court also looks at the words constitution of Canada mean- not literally
though- they look at similar words in the constitution used to understand what it means
here. They look at the history and debates leading up to the constitution.
The Question of interpretation in Re: Upper House
Interpreted the section by using a number of sources (Preamble, recitals)

Court looks at the debates leading up to signing of BNA and historical background and how
important the Senate was to the bargain of union
Court looks at principles: underlying principle: parliament will not without prior consultation
with the provinces amend the consti and abolish the Senate. The principle of federalism
was given most regard.
Adding 91(1) was a unilateral amendment and was done to prevent having to turn to
England Parliament before having to do something for its own function and relationships.
Court looks at meaning of consti of Canada (s 91(1)): these specific words do not appear
anywhere else in the constitution. The word consti appears in different contexts. The
Preamble: constitution similar to UK, part 5 is entitled provincial constitutions; s92(1)
constitution of province (different uses of the word constitution).
Court held: that constitution of Canada cannot mean the entirety of the BNA. It means the
constitution of the federal government as distinct from provincial, which has no impact on
the provinces. If we interpret the words to mean this limited form, then the power of
amendment has to be limited to matters purely federal in nature. Here, because of this
defn the federal govt cannot do what it is proposing to do.
Court looks at Canada: used in reference to juristic federal govt. Look at s 111 of BNA. S
91(1) is not intended for the govt to fundamentally alter the provisions of 91 and s 92. It
cannot be construed as conferring power to supplant the whole of the BNA
Court rejected argument that 91(1) and 92(1) are analogous because the composition
of the senate at federal level is far more important than the senate at the provincial level.
With regard to the second question of the reference: the court refused to answer
question because there was not enough information. Court said 91(1) would probably allow
some elements of Senate to be changed by feds alone but it is not open to parliament to
make changes that would affect significant structure. It is impossible to decide without more
information. We see SCC answering the first question and declining to answer based on
insufficient information

Case: LORD NELSON HOTEL 1951

Nova Scotia wanted to delegate some of its jurisdiction to federal govt in exchange for
ability to levy an indirect tax of up to 3% (power over employment law in the province).
Court held: Canadian constitution does not contain a power of delegation- cannot take ro
receive from one another- constitution does not belong to either parliament or prov
legislatures but to the people of Canada as a whole. In consti citizens find protection to
which the rights they are entitled- there to play a long term role. country is entitled to insist
that lego adopted by s 91 is passed by the fed and s 92 by the provincial. Parliament is
only legislating in matters enumerated in 91 and 92. All citizens are entitled to insist that
legislation falls within 91/92 respectively. FUNDAMENTAL PRINCIPLE THAT CONSTI
CONTROLS GOVT AND NOT THE OTHER WAY AROUND.
No power of delegation mentioned in 91/92 then there is no power of delegation. If we
wanted to swap powers we would have to alter the constitution.
Case: PATRIATION REFERENCE 1980
1974 PM Trudeau signaled strong desire to patriate constitution and include the charter in
the 5 years of his mandate. Liberal govt was defeated in election but then re-elected 9
months later. Upon Trudeaus return, the most pressing problem was the secession

problem. T promised that if Qu votes no, fundamental changes were coming and alter
consti and bring consti home.
T had vision of consti with charter of rights and had allies in ON and NB but other 8
provinces opposed. Why? Prov saw this as an encroachment of their power. If you impose
rights on top of exclusive jurisdiction they may not be able to enact the laws they want to
enact.
Clashing visions of the nature of fed system and degree to which we should entrench
individual rights and role given to the courts.
T announced that consti would be patriated unilaterally in the UK to include Charter of
rights and amending formula
As a result a reference q was put to the court

Issues:
3 questions posed to the court (on slides)
o if amendments enacted would fed-prov relationship/rights be affected? If so in what
respect?
o Is it a constitutional convention that the House & Senate will not request amendment
affecting fed-prov relationships/powers/rights/privileges w/o consent or provinces/
o Is the agreement of provinces constitutionally required for amendment where fedprov relationships/rights etc at issue?
Court starts on defining what a consti convention is: ensure that govt operates with
prevailing values of society. Specific requirements for establishing a convention: must
be a precedent (history of operating in this particular way) where prov approval was
sought before amending consti; also a normative element where parties have to
believe that they are bound; and there has to be a reason for the rule in the first
place (here federalism is the reason behind the rule)
The provinces were arguing there was a convention. The federal govt said no but even if
there was it doesnt matter thats not the law.
In some cases a single precedent backed by strong reason and moral imperative by parties
will be sufficient. A whole string of weaker precedent does not give rise to a convention
In this case, it is not enough to determine if convention
Should Trudeau be able to unilaterally patriate the constitution: DEBATE
Fed govt argued the senate is made up of representatives of the provinces therefore since
they agreed.
Bc amending consti affects provinces; this imposes a unanimous consent that no one
contemplated in the consti. Consti says that the fed govt applies to Brit Parliament for
consti change. The actual text of consti is to the effect that as long as you have resolution
in HOC and Senate the fed govt can do it.
The letter of the law is that the feds can unilaterally alter consti.
Fed govt argued that consti amendments did not include consent therefore this convention
is not in existence.
NO precedent, NO normative belief of being bound, therefore doesnt exist
Even if it was: it is not legally binding (slippery slope). To what extent should the court
uphold convention (unwritten rules)

Prov govt argued that fundamental aspect is federalism and agreement to form Canada.
Therefore if you are going to change provinces power then you need the consent of
provinces. Relied on Labour conventions case: if you sign a convention the fed govt cannot
legislate on that subject matter. The provinces must create legislation that implements that
treaty. The provinces drew on this analogy whereby feds cannot use its powers to usurp
provincial powers and change power between feds and provinces
Position of the court: LOOK AT SLIDES (CHART)
Maj: there is a consti convention and amendments to consti of this nature require
substantial degree of provincial consent. However, a differently constituted maj said that
the existence of this convention is no LEGAL BARRIER to fed unilaterally seeking
patriation without consent
It affirmed the power of a convention because notwithstanding the decision they did not do
so because of the finding of the court that there was a convention that requires this
substantial consent.
Maj on convention v on the law point: rejected idea that convention can be crystalized
into law and becoming law. Nature of a convention is political and not legal in nature. Not
based on judicial precedent. It would create fundamental tension in the court. Because
court is to uphold law, which says no consent, required.
2 judges: Martland and Ritchie: dissented on this and said convention can become law;
federalism is dominant underlying principles of the constitution therefore the convention
should be binding. This would be a back door entry into changing the balance of power.
Maj: when talking about existence of convention: substantial consent from provinces is
reqd (ON and NB is not substantial). Court did not define what substantial consent means.
Dissentients: there was not a convention at all and even if, convention cannot turn into
law. There was no precedent saying the degree of participation is so clear to be a
convention.
After decision, still ambiguous of what substantial consent is. At the end of the day T got
the consent of everyone but Quebec. Stated its own ref q on whether or not substantial
consent meant that Qu had to be included. By the time it went to court the point was moot
bc consti was patriated already. Nevertheless the SCC decided to answer the question:
Quebec veto reference:
Qu consent is not necessary to make up substantial consent. This eliminated any possibility
that we would have an unconstitutional constitution. Quebec was saying that if substantial
consent is required and Quebec is required to consent and it didnt then therefore the
constitution is unconstitutional.
Only reason they decided to hear the case because of the unrest that would occur if they
did not. Hogg argues that patriation reference should not have been answered because it
only raised political questions and not legal questions. Court went on to talk about
conventions, which is strictly political in nature.
Previously SCC dealt with conventions, but in each of these cases, the determination of
whether there was/not a convention was relevant to a larger legal question. Here, there is
no broader legal debate that needs to be resolved by talking about the convention. This
raises a bigger problem because the SCC is making pronouncements of the state of our
political entity that fundamentally alter the politics of Canada. The only impact that this case
has, by upholding the force of convention but not in law, forces govt to go to negotiating
table which is a political role and not a legal role. Goes against the separation of power.
The practical outcome was not bad but the larger question. If we are concerned with the

balance of power between feds and prov, then isnt this a good thing because consti was
endorsed by all except for Qu rather than 2 provinces out of 10.
On strictly legal principles and the legal theory behind the role of the courts and politicians,
one would have to say that SCC probably overstepped. This is not the first or last time that
this has happened.
Practically this is a good decision because better outcome as a result

Canadian Constitutional Law Lecture 3 Week 2: Tuesday

DIVISION OF POWERS: Principles
Double aspect:
Laws can co-exist in fed and prov subject matter if they are not regulating the same thing
Indication that framers intended a weaker concept of federalism that was intended in the
US
BNA 1867 only gives the provinces a specific list of enumerated powers and power to make
laws is only in this list
In US, residual power lies with the States (ex. Criminal law); in Canada this is not the case.
In AUS, fewer enumerated power because most power was intended for the States
Canada: strong central government; federalism is zealously guarded in Canada because
regionalism means more in Canada (a lot to do with Quebec).
91 & 92 set out matters of fed and prov jurisdiction (exclusive jurisdiction)
Exclusive: a number of sections have overlap so clearly they are not water tight
distinctions
Tools of interpretation assist us in dividing the powers and determining jurisdiction
Always difficult to determine specific subject matter of a statute (they deal with different
aspects of sub matter and some can be within jurisdiction and others outside
In s 92: #16 generally all matters of local or private nature within the province (kind of
resembles a residuary power). Opening words of 91: gives fed residual power for the
POGG
Exhaustive principle:
There cannot be a gap in power, either fed or prov must have the power. (Ex. Same Sex
Marriage reference; there cannot be a void in power)

2 Steps to determining jurisdiction:

1. Characterization of the law
2. Categorize to a head of power
These steps are symbiotic and mutually dependent on each other
There may be overlap to analysis on both steps
REFERENCE RE SAME-SEX MARRIAGE
Questions posed to the court
#1: is the annexed proposal for an Act respecting certain aspects of legal capacity for
marriage for civil purposes within the exclusive legislative authority of the Parliament of
Canada? If not, in what particular or particulars, and to what extent?
There are political underpinnings but also legal questions are at stake
Political considerations provide the context for the fundamental legal question
Political: appropriateness of recognizing same sex marriage
Legal: which level of government has the jurisdiction to legislate on same sex marriage
WHAT HEADS OF POWER IS INVOLVED: subject matter of marriage is divided between
fed and prov
Federal: 91(26); capacity to marry; set rules on who can marry who in what circumstances
Provincial 92(12); solemnization of marriage; content of marriage ceremonies, what steps
have to be taken to be married
In Pith and Substance, is recognizing same-sex marriage capacity or solemnization?
Capacity to get married meaning it has to come within federal jurisdiction
Interveners argued that 91(26) couldnt be interpreting as giving parliament auth of samesex marriage. Meaning of the word marriage is constitutionally fixed; any law is clearly
allocated to the provinces. Marriage is pre-legal institution and cannot be modified by law
(reference to historical laws on what marriage must be)
Rejected idea of fixed constitution: Canada is a pluralistic society; marriage is civil
institution from the point of view of the state. Pitfalls to a frozen concepts approach. Large,
liberal and progressive approach to interpretation.
Court held that pith and substance of law surrounds the ability to get married and the
incidental effects of federal law in provincial sphere are acceptable as long as they dont
relate, in pith and substance, to the dominant purpose of the legislation
Since the whole of the legislative power must reside in fed or prov; solemnization cannot
extend to capacity, then it must fall to the federal government (exhaustive principle at work)
R v MORGANTALER 1993:
Characterization & Pith and Substance:
Factual matrix is extremely important
Jan 1988: SCC on charter challenge struck down crim provisions that prohibited abortion
because they violated s 7 Charter. A year later, rumored that Dr. M intended to establish
abortion clinic in NS. In March, NS govt takes action to prevent this with 2 regulations
(Hospital Act, Health Act), which prohibited abortion anywhere then in place approved as
hospital and denied insurance coverage for abortions performed outside those
circumstances. In May, Canadian Abortion Rights Action League (CARAL) launched court
challenge to regulations, which was set to be heard in June, but just before, the legislature
passed the Medical Services Act before the summer recess. CARAL dismissed because

they would be discussed in Morgantaler case (dont have pub interest standing if better way
to effectively deal with matter in courts. Dr. M was personally affected by legislation).
Look to the provisions of Medical Services Act on slides
Court held: absence of federal law on the subject that does not mean that the province can
step in and move into criminal sphere.
Issue was: has NS regulated the place for abortion to control the quality and nature of
health care; OR doing so to prohibit abortions in order to suppress abortion as morally
reprehensible act
If it was for the first purpose, it is within the power of provinces, but if the second, it is ultra
vires
This is a pure division of powers question (what level of govt is allowed to do this and can
prov legislate in this way)
The court has to determine the subject matter at issue in the legislation

Pith and Substance:

Characterize and categorize
Attention to application of policy and legal principles
There is a lot of overlap and judgment jumps around a lot
A laws matter is its leading feature or true character or pith and substance
In assessing pith, cannot be technical but has to be flexible
Look at purpose and effect (be careful with effect because often legis dominant purpose will
be determinative irrespective of the potential effects)
4 Factors to assess purpose: 1) legal effect (four corners, strict legal operation, what do
the words actually mean; 2) social or economic purposes; 3) extrinsic materials; 4) practical
effect (often problematic because effects are unintended).
In applying the four principles:
1) Legal effect: law creates an offence subject to fine, purpose statement in s2 that
expresses that the purposes is to prohibit privatization of medical services. It becomes
apparent from offence and regulation that at least one purpose is to prohibit free-standing
abortion clinic. The legislation also expressly prohibits performance of abortion under threat
of penalty.
Must look beyond the four corners of the statute because form alone is not sufficient: Court
says that the Act has impact of abortions that is virtually indistinguishable between the
former criminal code provision. This is not in itself determinative, but raises an inference
that prov steps into federal realm. Language itself is not necessarily determinative but a
mere factor, it is the combination of everything that brings an answer.
Province has to make law within the head of power in 92. Here the overlap between the
criminal code provision and this legislation supported a strong inference that NS was not
regulating matter within prov jurisdiction but served more of a criminal purpose
Here the penalty is severe (10-50K) strong inference that legislative purpose in its true
nature is in relation to the criminal law power that belongs in federal realm. We need to
know if this is the dominant purpose of legislation
To do this, we need to compare the indicia of federal and prov subject matter
S 91(27) is criminal law power of feds; 92(7); 92(13); 92(16): provincial law provisions that
are relevant
Court looks at stated objective of preventing privatization, but this is purely incidental and
legislation does not fall within provincial jurisdiction

The Heroin Treatment Act:

Double aspect doctrine: subjects in one aspect fall within s 92 may in another aspect fall
within s 91
Compulsory treatment of persons dependent on narcotics
Director can order application ex parte and if court was satisfied they would commit the
person. The appellant challenged the validity of the legislation an claimed that it was ultra
vires to prov govt with respect to compulsory treatment and detention aspects
Ex. Schnieders case
Appellant argued: 1) fed govt had jurisdiction bc of narcotics control act (under POGG
power, the feds have juris); 2) this legislation trenches into the criminal sphere
BC argued: this is about healthcare 92(7); (16)
Court held: what was at issue in the Act was treatment and not punishment so in pith and
substance the legislation was about treating heroine addicts. A narcotics addiction is an
illness and not a crime. Condition that requires medical and social intervention, which is
done by the provinces
R v Hauser: federal parliament pursuant to POGG is competent to make law for control of
narcotics and this law relates to narcotics. So how can provinces have this power? BC is
not trying to control the illegal drugs it is about regulating people who use the illegal
drugs. This is a different aspects of the legislation
Detention for up to 3 years
Problem:
Ability of the business to regulate the customers it wants to serve and ability to people
to freely engage in activities that are not illegal
Types of heads of power: 92(13); 92(15)
Fed: regulating sex and clubs not for safer environment bc group sex is a social evil
and moral wrong which slides it into the moral realm

Canadian Constitutional Law Lecture 4 Week 2: Friday

DIVISION OF POWERS
S 91(2) trade and commerce; 92(13) provincial power over property and civil right
These sections appear to overlap bc trade and commerce carries on by means of contracts
that give rise to civil rights in relation to property
91(2): extremely broad interpretation: just uses the words trade and commerce which is
very broad
This is in direct contrast to the US constitution which is more narrow; although now the
tables are turning and Canada is becoming more strict while US is widening
Canada is narrowing to give more power to 92(13) provincial power
The courts have engaged in a process of mutual modification: narrowed both classes of
subjects to try to give exclusivity to both sets of power
CITIZENS INSURANCE V PARSONS 1881 JCPC
Division of Powers
Issue: who has jurisdiction over contracts of insurance
Pivotal case on limits of T&C power but was a private dispute
P owned hardware store and took out insurance policy against fire. There was a fire so he
wanted to claim under the policy. The insurer denied the claim based on non compliance
with the insurance contract (failure to disclose gun powder and at time of fire 25lb of gun
power, failed to disclose previous insurance contract); his failure to comply rendered the
contract void

P argued that contract adopted variation to standard form that did not meet reqts of fire
insurance policy act. Insurance co has problem bc they may have to pay out
Insurance co argued that ON legislation was ultra vires; citizens insurance was
incorporated at the federal level and civil rights only included ones that flow from the law
and not contract
Court rejected second argument: no sufficient reason in language to give such a narrow
interpretation to property & civil rights. They are wide enough to cover rights from contract
P argued: power to incorporate also includes authority to regulate
Court held power to incorporate does not embody exclusive power to regulate. Just bc feds
have auth to make a corporation does not mean that it alone has the right to regulate that
corporation. Contracts entered into at provincial level will be regulated at provincial level.
3 step approach:
o 1. Does the impugned acts subject matter fall within s 92 (provincial
jurisdiction);
o 2. Does it also fall within classes of subjects in federal jurisdiction of 91?;
If yes; is the provincial competence overborn by federal competence
To understand the meaning that must be given to these powers the court looks beyond the
words of the sections and other sections of BNA.
If we were to accept the insurance company argument that civil rights is narrow then the
law of contract must necessarily fall within the federal government. S 94 gives parliament
power to make uniformity of law in ON, NS and NB for property and civil rights. Used in
the same sense in 92(13)
If we give the narrow interpretation of civil rights, then parliament under the general power
to legislate in regards to contracts in all provinces including Quebec (problematic bc it
imposes common law on the civil law system and how Qu is left out of 94 for this reason)
Court looks at whether property or civil rights are qualified or limited by other words in the
consti
In 91, provision is made (18) bills of exchange/promisory notes (specific types of contract).
If feds have authority over all contracts then this section is redundant bc they would
obviously have this power. Therefore contracts generally come within the defn of property
and civil rights therefore in jurisdiction of province (1st step of approach)
2nd step: only potential is T&C power: these words are sufficiently wide but this
interpretation is only tenable if we read those words without any reference to the context
and other parts of BNA. In BNA we see words should not be construed to be used in
unlimited sense. If this were so, then several other enumerated powers would be wholly
unnecessary (15, 17, 18, 19, 21). Drafters assumed not to place in redundant sections.
In relation to context: JCPC HELD: para 25 READ

GENERAL PRINCIPLES FROM PARSONS

General power should not override the specific (power over T&C is general and
property and civil rights is more specific)
CIVIL RIGHTS GIVEN BROAD INTERPRETATION
TRADE AND COMMERCE GIVEN LIMITED SCOPE
Power of incorporation does not extend to the power of legislating over that
corporation
There are 3 general areas that are captured by federal T&C: international, inter
provincial, general regulation and NOT specific business/trade

Provinces have jurisdiction over all trade and commerce taking place within that province
Federal jurisdiction can have impact over province provided that the dominant purpose (in
pith & substance) is within that jurisdiction (incidental effects)
Court held: could not have been the intention that conflict within consti exists; in order to
prevent, 2 sections read together and language in one is modified by language of another.
This way, possible to arrive at practical outcome
Generally accepted that there is a general T&C power the courts did not refuse to
recognize this

GENERAL MOTORS V CITY NATIONAL LEASING

Division of Powers
Issue: the constitutionality of 31(1) of the combines investigation act (predecessor to
competition act) that prohibited monopoly, limited competition
Competition law had been upheld under crim law power but in 1975 and 86, amendments
de criminalized the law
This raised a constitutional issue bc 31(1) creates civil cause of action which fall within
domain of provinces under civil rights (92 (13))
CNL leased fleets of cars across Canada purchased from GM dealers. Financed purchase
of vehicles through finance arm of GM. Allegation, GM giving preferential interest rates to
competitors of CNL which was argued against Combines Act
Bc this is violation they were entitled to bring civil action under 31(1) and claim damages
GM, supported by provincial AG claimed that this was not valid legislation and ultra vires to
fed under 91(2) trade and commerce power
CNL argued that this was valid under general branch of T&C power bc economic legislation
that affected country as a whole
Quebec conceded that feds had power to regulate competition in national economy; this
power only extends to inter-provincial and international aspects of competition. BUT
intraprovincial was not included
Here, we are dealing with intraprovincial so this argument is not relevant.
Court reviews history of litigation under 91(2): true balance between 91(2) and 92(13) must
lie somewhere between all pervasive interpretation of 91(2) and an interpretation that
renders the general T&C power
Court reaffirms case by case analysis: Looked at 5 factors
Court begins by analyzing the scope of 91(2) fed power over T&C.
Two aspects of federal power 91(2):
o Power over international/interprovincial trade; and
o Trade that affects nation as a whole.
In Vapor Canada case CJ Laskin proposed 3 hallmarks of validity for legislation under
general limb of T&C power:
o 1) Impugned legislation must be under regulatory scheme; 2) Scheme monitored by
regulatory agency; 3) Legislation dealing with trade as whole not particular industry.
This attempts to maintain balance between feds and prov power.
THEN DICKSON CJ ADDS 2 MORE AND CREATES 5 FACTORS BELOW OF SECOND
LIMB OF T&C POWER
General indicia includes:
1. General regulatory scheme

2. Monitored by agency
3. Concerned with trade as a whole
4. Provinces are constitutionally incapable of enacting jointly or severally
5. Need for national regulation: the failure to include one or more provinces in a legislative
scheme would jeopardize the schemes operation in other parts of the country.
5 Factors provide checklist of characteristics, the presence of which in legislation is an
indication of validity under Trade & Commerce power. This is not an exhaustive list; the
presence or absence is not determinative therefore it must still be a case by case
analysis (Parsons)

The test for Ancillary Powers: Constitutional Analysis

It will normally be necessary to consider both the impugned provision and the Act as a
whole when undertaking a constitutional analysis.
1. Consider the extent the impugned provision can be characterized as intruding into
provincial powers. If no intrusion (i.e the pith and substance the provision is federal law)
then only issue is validity of statute and nothing further (assessing just the provision). If it
does intrude, then we must ascertain the degree of the intrusion by assessing the provision
on its own and not the Act as a whole.
2. Look at the whole Act and determine that it is valid (involves whether the Act contains a
regulatory scheme). If legis has one, this is considered a basic characteristic of basic T&C
legislation. Not necessary for scheme to be in whole Act, one part is fine. If no regulatory
scheme then court will have to consider whether the legislation can be supported by virtue
of the other requirements for valid scope of T&C power above (5 factors)
3. Look at relationship between the impugned provision and the scheme. If there is
encroachment and the act is valid, then the court must be satisfied that the impugned
provision is sufficiently integrated into the valid legislation (how well do the pieces fit
together) NB: If insignificant intrusion, then must be functionally related to impugned
provision; If intrusion is serious, then impugned section must be truly necessary to
legislation
Consequence: if the provision passes the integration test it is intra vires Parliament as an
exercise of T&C power. If it is not sufficiently integrated, it cannot be sustained under this
head of power 91(2).
Application
Here, STEP 1: does s 31(1) intrude provincial powers; yes prima facie bc it creates a civil
action which is a matter for provinces in 92(13). However, 31(1) purpose is there to help
enforce the other substantive parts of the legislation and therefore remedial. Remedial
provisions are less intrusive bc it does not create general cause of action but rather limited
scope of action. It is well established that the fed govt is not constitutionally precluded from
creating civil rights where warranted
STEP 2: There is a regulatory scheme. In cases involving general T&C power, must find
regulatory scheme to make the act valid. YES evidence is throughout the Act bc whole
purpose is to eliminate activities that reduce competition in the market place. The entire act
is geared towards this objective. It establishes an investigatory mechanism for revealing
prohibited activities and provides an extensive range of redress against companies
engaged in competition reducing behavior. Therefore it is a well integrated scheme of
regulation.
Once regulatory scheme, that scheme must meet the criteria that are set out.

For valid legislative scheme:

1. Is scheme monitored by agency that has oversight of the program; YES; regulatory
mechanism is carefully controlled by director of investigation and research and the
authority to launch an inquiry rests with the director. Director exercises significant degree of
control over the operation of the Combines Investigation Act
2. Is this matter of general concern or particular industry? GENERAL trade as a whole
because competition is not an issue of local concern but of crucial importance to the
national economy.
3. Provinces incapable of enacting? YES
4. Do we need national regulation; would scheme fail if provinces were left out? Para 59-66
need for national regulation: diverse economical, geographical and political factors for
federal regulation of competition. A national policy is the key to efficiency in the production
of goods and services. This is because some provinces will be able to produce some
resources more efficiently than others and introducing national competition policy will
ensure that these differing regions will accrue to the nation as a whole. Aimed at economy
being single, integrated national unit.
STEP 3: Once valid scheme, we look at how well integrated it is. Consider the seriousness
of encroachment and court says it must be functionally related because lower end of
intrusion into power (the functional test). Court held well integrated and part of broader
whole strategy in relation to the Act. It serves to reinforce other parts of the Act which
renders it intimately linked to the Act. The court held that even if stringent test sufficiently
integrated is used, the section still passes bc only takes operative value by reference to
other provisions of the act.
Court cautions that case should not be taken as authority for proposition that every
private right of civil action in federal T&C will defacto be valid but CASE BY CASE
BASIS. Comes down to test and valid legislation
Under general branch in T&C, authorizes feds to regulate T&C at an intra provincial level.
The general power is not limited to inter provincial trade. General branch can enable feds
to regulate at intra provincial level. But still refer to tests to ensure that there is a need for
cohesive system and inability of provinces
First case to put teeth behind the general T&C power
SCENARIO:
PROV: National Securities Scheme; problem is that the regulatory scheme is more specific
dealing with securities industry; (ex. securities dealers, and specific requirements) seems to
trench too far in terms of the details of regulation on particular players
FEDS: more general because it is various types of securities that occur across the country. But
probably not. Just because it is a good thing this does not mean that we can do it; therein lies
the problem of federalism
CF: REFERENCE RE SECURITIES ACT
SCC finds that under the legislation; this would not pass constitutional muster because
it overreached and not concerned with trade as a whole. Delved too much into
individual areas of particular professions and nitty gritty fine regulation. SCC did not say

that a national securities scheme is not prohibited but the version in 2011 was not the
right version.
The term securities designates a class of assets that conventionally includes shares in a corp,
interests in partnerships, debt instruments and financial derivatives

Canadian Constitutional Law Lecture 5 Week 3: Tuesday

INTERJURISDICTIONAL IMMUNITY AND FEDERAL PARAMOUNCY
Used in circumstances where overlap is impermissible
Review from last week:
Courts have allowed for substantial degree of overlap to accommodate federalism.
Any federalism analysis: Morgentaler
Pith and substance: determining true character of Act (look at purpose and effect). This can
lead to overlap.
Court deals with overlap: ancillary doctrine (an impugned jurisdiction can be truly
necessary to another jurisdiction); pith and substance and incidental effects allows overlap
to happen; double aspect doctrine (cannot use if there is conflict, ex. Schneider); mutual
modification (General motors: reading powers limited/broad scope)
Help us deal with laws with potential for overlap

If conflict however that is inconsistent and impossible to satisfy both laws, then we
choose between paramouncy/interjurisdictional immunity

Federal Paramouncy:
Federal law given priority where there are inconsistent federal and provincial laws. The
provincial still applies
This is a common law doctrine with a few exceptions (95, 92(a) and 94)
Consti is silent with respect to any general rules dealing with overlap
95: fed paramouncy in regards of agriculture
92(a) confers on province concurrent jurisdiction to legislate of export for their natural
resources to other provinces subject to paramouncy of federal legis if conflict
94(a): concurrency of jurisdiction in relation to old age pensions and sup benefits. Provides
for a form of provincial paramouncy
Why not have section that says paramouncy of feds: parliament had a power of
disallowance which reserved in the fed govt by way of s 90 the ability to disagree with
provincial legis and not allow it to be passed.
In declaring paramouncy, the validity of the provincial law still stands
First you must declare both legislations are valid
The provincial legislation is suspended as inoperative
LAW SOCIETY OF BC V MANGAT
M carried on immigration consultancy business. Not accredited in BC
Engaged in immigration proceedings and appeared on behalf of aliens for a fee, clients
signed agreement that he was not a lawyer, etc
Law society believed that he was engaged in illegal practice and wrote to him of the
consequences of him advertising (holding out to be lawyers). This disagreement was
resolved and M changed the wording and content on the ads)
Law society brought application for injunction to prevent him from practicing law
At first instance: injunction granted; during this process M becomes member of law
society
Legislation in question: BC LEGISLATION: s 26 prohibiting non lawyers from engaging in
practice of law (appearance on behalf of client would fall within practice of law) FEDERAL
LEGISLATION: s 30 allowing other counsel to represent people in immigration hearings
ISSUE: whether BC legislation/ fed legislation are valid and intra vires? Then which
legislation prevails?
BC COA: overturned the appeal but split on whether it was paramouncy or IJI
ANALYZING THE FEDERAL LAW
Court first looks at pith and substance of federal legislation: para 25-32. Combination of
objectives of act and policy considerations. Looking at it all, the essential pith and
substance relates to granting certain rights in the immigration process.
Court assigns this to class of subject matter: 91(25) naturalization and aliens. As a result
the federal legislation is definitely valid notwithstanding that it might fall within provincial
head of power
ANALYZING THE PROVINCIAL LAW
Pith and substance: rights that aliens possess in front of certain divisions of the IRB and
the procedure.

92(13) property and civil rights

Therefore both fed and provincial laws are valid UNDER THE DOUBLE ASPECT
DOCTRINE. Parliament must be allowed to determine who may appear before tribunals
and provinces must be allowed to regulate the practice of law
IS THERE A CONFLICT?
The term other counsel must mean non-lawyers
This situation does not mean impossibility of dual compliance bc technically you could get
accredited or not charge a fee.
But this would be contrary to the federal purpose of the legislation and goal of having an
expedited process where non lawyers can participate
Paramouncy involves two types of conflict:
1. OPERATIONAL CONFLICT (conflict where application of provincial law displaces the act
of federal. Compliance with one is defiance of the other. Impossible to be compatible.
2. Operation of provincial act is INCOMPATIBLE WITH THE FEDERAL PURPOSE
Paramouncy involves 2 step process:
1. are both statutes valid
2. is there an inconsistency/conflict
b) law is inconsistent when there is impossibility of dual compliance or frustration of federal
purpose
MULTIPLE ACCESS V MCCUTCHEON
Alleged insider trading contrary to the Securities Act
Shareholder action was initiated against insiders of Multiple Access which was a federally
incorporated company traded on TSX.
Proceedings initiated under the OSC; but traders argued that Ontario statute did not apply
to them bc the regulation of trading of federally incorporated company fell within the federal
power and not provincial. Ontario provisions were inoperative bc Federal act was what
applied to them.
Under federal act, limitation period would have expired therefore they wouldnt be subject
to liability
Issue: did mere duplication constitute conflict necessary for paramouncy doctrine.
Generally speaking the court has said no.
Hogg: duplication is not inconsistency; double liability is a concern but courts deal with this
all the time and we see federal/provincial agreements so that there is not multiple litigation
Canadian courts do not infer inconsistency simply because there is duplication (different
from AUS). We deal with overlap by using things like paramouncy doctrine, double aspect
doctrine, etc
QUEBEC V COPA
IJI: provincial law is valid but reaches too far and touches upon federal jurisdiction
IJI protects certain matters from the impact of otherwise valid provincial legislation
This doctrine operates in contrast to federalism and overlapping jurisdictions and
harmonious resolution of this overlap
Draconian measure
This case looks at application of IJI

Private individuals built a hanger for private aviation. The agricultural protection
commission which had authority of zoning agricultural ordered this pair to return land to
original condition
COPA stepped in to be the respondent
Issue: local land use and planning v national interest in unified system for aviation
Legislation at issue: Quebec Act: preservation of agricultural land and activities; federal
act: people are permitted to construct aerodomes without applying for permission
Provincial act: s 26 prohibited use of lot in designated agricultural area
Federal act: purpose to regulate aviation throughout Canada. High levels of regulation is
maintained for airports.

VALIDITY OF BOTH LEGISLATION

The legislation is valid and purpose is to secure continuation of agriculture
The federal legislation is also valid
INTERJURISDICTIONAL IMMUNITY:
Only when provincial legislation is valid
2 step process:
1. Whether the provincial law trenches upon a core of federal competence (s 26)
2. Is it sufficiently serious to interfere with this
Step 1:
Under the POGG power, fed has exclusive jurisdiction to regulate aviation. This also
includes operation of airports including the location. Therefore the core is the location of
aerodomes
Quebec said that local airports were not matters of national importance
The court said that this could not stand because aerial navigation is non severable bc it is
impossible to separate intra provincial flying and inter provincial flying and cannot be
identified separated from a whole.
How does it fall within the core: the minimum, basic unassailable content of the
legislative power (absolutely necessary to enable parliament to achieve the purpose for
which exclusive legislation jurisdiction was conferred). If the province has impaired this
core, then IJI applies
Here precedent identifies this as being within the core of aviation power of the feds,
therefore the court held that this was in the core
Step 2:
Does the provincial law unacceptably interfere with federal competency
Must be more than minimal effect or constitutionally unacceptable
Becomes a question of seriousness
The test is of impairment: does the provincial legislation impair the exercise of the core
This is a midpoint between sterilization and mere effects
This is a case by case analysis: requires significant or serious intrusion on the exercise of
the federal power

Province argued that this does not impair bc the feds can still determine locations using the
paramouncy power. This argument is wrong because it employs a sterilization analysis and
also blurs the line between paramouncy and IJI.
Paramouncy requires conflicting jurisdiction and IJI it is not necessary to show conflict of
laws. It is about whether provincial legislation impairs the core regardless of whether feds
even have legislation in the area. PARA 53
Acceptance of this argument would narrow parliaments legislative options and impede the
exercise of its core jurisdiction
Province also argue double aspect doctrine: but with double aspect, both laws must be
able to exist harmoniously

Recap on IJI:
Only applies if core competence of parliament that is vital or essential part of federal
undertaking is IMPAIRED
Summary of differences between IJI and Paramouncy
IJI
Concern is scope of power
Protects core basic minimum,
unassailable content from intrusion
from provincial legislatures
Impairs the exercise of the core
competence; necessarily incidental
effects which can impair. We do not go
back and say the law is invalid because
of this

Paramouncy
Concern is exercise of power
Protects from conflict or frustration
Frustration requires an identifiable
purpose

QUESTION:
Is there a form of IJI at the provincial level? Is there a core of provincial competence in the
enumerated heads of power that should be protected from intrusion from feds. Should IJI work
reciprocally?
The rationale is rooted in exclusivity of the principal heads of legislative powers of 91 and
92. There is nothing in consti to suggest that provincial heads of power are less exclusive
than federal. IJI should apply reciprocally.
In theory this makes sense. There is no reason why IJI cannot apply at provincial level.
In some senses with conflicting cores, it may be circular but could be saved by paramouncy
Hogg suggests that there is no theoretical reason why it shouldnt be reciprocal (consistent
with ideas of exclusivity and understanding of federalism). Tiny amount of obiter supporting
this but has never been judicially recognized. Statement from court in COPA, only used in
situations covered by a precedent. They relied on precedent in that case to determine
core. Bc of the significant impact of IJI it should not be applied unless precedent that it
should. Therefore with no precedent of it applying to provinces then maybe it shouldnt
apply.
3 ways to attack legislation:
1. Argue validity of the law: pith and substance: argue that law does not come within class of
subjects outside the enacting legislation

2. Argue applicability of the law: IJI: argue that law does not apply to circumstance because
it is unacceptable
3. Argue operability of the law: paramouncy: argue that law is inoperative because the
paramouncy applies and governed by federal legis and not provincial
**Difficulty is when court will apply IJI or paramouncy

Canadian Constitutional Law Lecture 6 Week 3: Friday

CRIMINAL LAW POWER:
- Crim power is divided in our consti the responsibility for crim justice lies w federal and
provincial gvts
- The fed gvt by virtue of 91(27) has jurisdiction to enact crim law
- But enforcement of crim law is given to provs 92(14)

o Administration of justice: including criminal justice. This includes things like setting
up police forces, setting up courthouses, managing resources of courts; also
includes power of police to lay charges under fed crim code and to prosecute
offences
o Crim prosecutions conducted in courthouses - maintained and is the resp of the
provl gvt
o 92(15): the imposition of punishment by fine, penalty or imprisonment
o 92(6): prisons (in and for the province)
The substance is left to fed gvt
Enforcement left to the provinces
The fed crim pow has been subject to dramatic shifts has been interpd by a wide legis
auth as being very broad
o In RJR court says crim law power is plenary in nature so it is a full power

THE MARGARINE REFERENCE

- Re: the dairy industry act
- So it was a reference re validity of s 5 of the dairy industry act
- Issue: consti validity of s 5a of the act prohibd the manu, import, sale of all margarine
- So it was illegal crim offence to interact w margarine
- Crime is act which law forbids (see: quote on slide) evil or injurious undesirable effect on
the publicmind to suppress the evil or to safeguard the interest threatenedpublic
purpose
- Give us the scope of crim law power
o Not meant to be exclusive, but become that way
o So public peace order security health and morality are the ends crim law said to
serve
o Finding a crim pub purp is impt to estabing jurisdiction
- So we get a 3 stage test/indicia which needs to be present to belong to crim:
o 1. Need a prohibition of the particular activity
o 2. Has to be accompanied by a penalty for breaching the prohibition
o 3. Law has to be enacted for a crim pub purpose = public peace order security
health and morality (so need a social evil trying to cure)
- The legislation which prohibd the import sale manu of margarine here, and had penalties
satisfied first 2 branches of test. BUT, the court found that it could not be supported
under third branch of the test. Why?
o This is an ulterior motive
o The real purpose of this law was to protect the dairy industry so the law itself had
an economic, as opposed to a crim purpose behind it
o There was evidence that margarine was a fine product, no health risks so that
clearly wasn't part of it (but maybe if they showed that they could have maintained
the criminality)
o So no evidence of this, even from the gvt own research of health risks
o So purpose wasn't to protect pub from evil product, but to protect dairy indy from
cheaper product (essentially, butter) so it was to protect trade in dairy products.
This is an economic, not a criminal purpose.
o So then it was property & civil rights s 92(14) provinces juris in pith and
substance
- Court looked @ could this fit under T and C (fed gvt power)

o This is a regulation targeted at a individual, particular, specific industry but this

only covered ban on manu and sale the ban on importation was upheld under T
and C power bc involved intl T and C
o So still not crim, but dealing w setting prohibitions on import of products is approp for
the fed gvt to do within T and C the others werent bc partic, specific industry
We see the crim law as a plenary power supports fed regu of matters which might
o/wise fall in provl even if it touches on prop & civil rights (think about theft, that is
dealing w prop)
So even though crim law power seems to trench widely across provl heads of power or
juris bc crim law power is plenary, it can have those effects so long as fits this test need
a prohibition, penalty and crim pub purp

RJR MACDONALD V CANADA

- The advertising of tobacco was an issue
- Prohibition: cant sell unless u follow these regus
- But not banning smoking, just the ads
- Prohibd w few exceptions all ads and mandated health warnings on packages
- So u couldn't sell unless contained this health warning
- The prohibitions in the act not ltd to inter provl or international trade applied to all
dealings in tobacco
- Act didn't proscribe sale, distrib didn't make smoking illegal so no ban there, just trying
to regu packaging
- The idea was that we have to deal w it in this way bc tobacco products were dangerous,
but the ad isnt and the advertising of consumer goods is left to juris of provinces under
prop and civil rights juris
- Qbc COA held that the fed law here was not a valid exercise of the crim law power bc in
view of wbc COA not approp to crim only ancillary activities so the ads when the princ
activity was not also illegal. Here the ancillary activity is the advertising and the principal
activity is consumption of tobacco
- Stmt from court about plenary nature court says s 91(27) has to be read as assigning
to fed juris to the crim law in the widest sense, and our defn of what is crim and those crim
activities are not frozen in time not fixed categories
- Court says tobacco control act prohibs certain acts, accompanied by penal sanctions
- So clearly we satisfy first 2 steps of crim law test * which creates prima facie indication
that the act is criminal.
o This is @ least an indication that the acts are crim in nature
o Penalty + prohib = inference of crim juris
After these 2 it is prima facie considered criminal in nature but still
need to look at if there is a criminal public purpose
Purpose added by the Margarine Reference
o If only needed prohibition then the criminal law power would be too wide other
two elements have to be there
- Margarine Reference Case
- If prohibition and penalty are the only tests, then this legislation will be valid 3rd
requirement purpose
- Purposes supported by criminal law: public peace, order, security, health, morality (not
exhaustive!)
- In this case: response to nation public health problem. The evil being targeted here is to
minimize the consumption through the advertising

Test from this case: if penalty and prohibited were enacted and directed to an evil and
injurious effect
Here there was evidence introduced at trial that demonstrated these health risks
Health and crim law health & enviro amorphous topics both fed and provl gvt
could deal w it and healthcare generally is considered to be a provl juris, but the fact that
the province can regu healthcare, doesn't diminish fed plenary power to legis to
protect health under the crim power. It is not an enumerated power.
We need to have a consistent pub protection element which transcends provl jurisdiction
So the crim law power confers broad power to create crim legislaton, even n relation to
health and it is circumscribed only by the reqts of the text needs to be a prohibition,
accompanied by a penalty directed @ some legit pub health evil (need to be combating a
problem wrt health)

Pith and Substance:

- Said the true character targeted at an evil or injurious effect upon the public
- Tobacco consumption has extended health risk history
- Health is not an enumerated head under the constitution
- Conclusion is both federal and provincial can regulate aspects of health
- But the mere fact that the provinces can enact health legislation it does not diminish the
plenary scope of the criminal law power
o Extrinsic evidence
Whole bunch of documents that the parliament used to support this legislation
(common threat was protecting Canadian form tobacco consumption)
Allowed to look to this from Morgentaler
o Colourability
Effect impacts provincial power as argued by Quebec
But no evidence to suggest that purpose was anything other than protecting
Canadians from tobacco consumption
(if underlying intent was to regulate tobacco industry or regulate advertising
then it would be an encroachment)
Distinguished Morg: dominant purpose was to eliminate clinics
Why not just ban smoking? Not politically smart at the time
o VALID CRIMINAL LAW
o {later this was struck down on charter grounds but valid on federalism grounds}
KEY PRINCIPLES:
- Criminal law is defined broadly (para 28)
- To be read in widest sense (para 29 & 47)
- Definition not frozen in time (para 28)
- Public health valid federal concern even though this is an area of concurrent jurisdiction
(para 30)
- May regulate incidentally w/o prohibiting core wrong (prostitution/tobacco regu of
ancillary activity, not the activity itself)
- Can regu ancillary activities
- Exemptions do not disentitle (take out of criminal sphere), para 54
- Exemptions wont take u outside crim law realm
Saskatchewan v Rothmans

So the fed law here is the tobacco act, and s 31 of that legis provided that subject to the
regus, any person could display for retail sale a tobacco product or accessory product
which displays tobacco (accessory: tobacco branded items). S 30(2): retailers could post
signs advertising tobacco was for sale in shop. Saskatchewan implemented legis banning
all ad, display, promo of tobacco anywhere where minors were permitted to be.
The issue for the court: whether the Sask legis was intra vires whether banning tobacco
advertising was proper provl law in light of the fact that the fed gvt had a crim law juris and
had enacted s 30 and other provisions in tobacco act dealing w same problem so fed
crim legis, and provl regu legis
ISSUE:
o Whether Saskatchewan legislation is sufficiently inconsistent with s 30 of Tobacco
Act (fed) to render it invalid pursuant to federal paramountcy
Conflict
o Federal Law: s. 30(1) provides that, [s]ubject to the regulations, any person may
display, at retail, a tobacco product or an accessory that displays a tobacco
product-related brand element. Section 30(2) further provides that retailers may
post signs indicating the availability and price of tobacco products.
o Sask Law: Section 6 of that Act bans all advertising, display and promotion of
tobacco or tobacco-related products in any premises in which persons under 18
years of age are permitted.
o Rothmans decides to sue provincial government and claimed s 6 was inoperative
because of s30
o Conflict arises because of double aspects as both can legislate in their given areas
which overlap
o Must be intra vires to have an issue of federal paramouncy
o The potential conflict is with 92(13)
ANALYSIS:
o By allowing retailers to display it is contrary to the purpose of the Tobacco Act
o Court did not accept Respondent (Sask) argument that it enacted s 30 to make
displays subject to only its regulations
1) Can a person Simultaneously comply with both?
o Dual compliance is possible:
Dont let people < 18 in
Or dont display the products
SO NO OPERATIONAL CONFLICT
There is permissive language (may display) but does not create a right to
engage in that activity
2) Does s 6 (prov) frustrate Parliaments purpose in enacting s 30?
o Federal purpose remains fulfilled and the provincial act does not frustrate the federal
purpose
o s 6 (prov) aims at further s 30 (fed) which supported it = furthered the purpose of s
30 of federal act
o S.C. also said that AG of Canada intervened on behalf of Saskatchewan and the AG
would not have done this if the province intended to frustrate the purpose of the
federal legislation
o If their intention was to create a positive right and the other legislation comes in and
alters it or takes it away, then it will frustrate the purpose of the previous legislation

o The purpose of each legislation is compatible and actually supports the federal
legislation
RATIO: A provincial law that supplements or even duplicates a federal law is not
deemed to be inconsistent with the federal law

Reference Re Firearms Act

Series of qs relating to the consti validity of the fed firearms act which enacted
amendments into the CC of Canada for many years before this, the CC prohibd use of
firearms in 1995, parl extended this by regu possession of all firearms this incl rifles and
shotguns this was accomplished bc of a reg and licensing scheme
The legis estabd a licensing scheme for psn and use of any firearm not just dangerous
and made a registry for all firearms. Failure to comply was an offence under crim code.
These offences existed prior but related mostly to semi automatic, automatic and
handguns. Now, CC provisions going to relate to all guns. More regus about where to store,
who can get a license (ie crim history couldn't obtain license)
So really this is about regulating the prop rights of gun owners.
Federal government enacted gun control legislation
Alberta government got upset and challenged the constitutional validity of the gun
legislation
ISSUE: whether or not Parliament had constitutional authority to enact law
Federal government argues valid criminal law s 91(27) and under POGG
Alberta says it falls under 92(13) civil right and property
o Said it was a colourable attempt to legislate property of gun owners
o Did not raise legitimate concerns about public safety, which trenches upon property
rights of gun owners.
Legislation
o Reference focuses on validity of licensing and registration provisions
o Need a license to own one eligibility reflects safety
o Cant get registered unless licensed possession of unreg = offence
o This new scheme applied to ALL firearms
o Very stringent scheme
Found P & S threat to pub safety
But the law here wasn't just prohib w penalty for pub purpose also had an admin regime
and regu admin regimes can be indicative of things not nec crim in nature but that are regu
or admin. Once u move into that realm, if the fed gvt is touching on a provl juris, then not
IV bc not for crim purpose but sideways purp (albertas challenge)
Alberta said scheme was regu as opposed to crim in nature this was because of
complexity of legis, and degree of auth to firearms officer. They said the legis was
indistinguishable from priv prop rules re: gun owship and similar to regu of other prop
schemes w/in provl juris. So the provl gvts are equating the creation of rego of firearms w
the need to register land title. So this is how they equate it w provl juris how do we
license prop as opposed to prohib crim evil.
But SC found crim pub purpose [23] gun control trady valid crim law bc dangerous
and pose risk to pub safety but crim purpose is not suffic, also have to deal w crim form
So the purpose of the legis the crim purpose which SC found has to be attached to
that prohib/penalty; combat misuse of firearms and threat it poses to public safety
(long recognized as part of crim law jurisdiction)

Here court focuses on crim code prohib of psn of firearms w/out a license
S 112 prohibs psn of firearms without rego
These prohibs backed by penalties in CC
But this isnt complete answer, bc court has to deal w args on behalf of Alberta
this ia regu regime, this takes it out of CC juris (very complex rules for licensing and
rego, storage and handling) discretion given to officer
o Talk about equating with MVs and land titles
ANALYSIS
1) Pith and Substance Test:
What is the matter?
Effect
How law will operate and effect Canadians
Alberta said it will not achieve its purpose irrelevant
Purpose
Laws purpose in legislation but can be supported by extrinsic evidence (Morgentaler)
Look at leg it has both a regulatory (property) and criminal focus
The regulatory nature suggests it may not be criminal, see Albertas challenge
Minister said: preservation of safe, civilize and peaceful nature
Or can take the mischief approach = look at the problems it seeks to address:
o Illegal trade of guns
o Link bw guns and deaths
Historical public safety focus of gun control (para 33) valid purpose under criminal law
power
CONCLUDE: directed at public safety
2) Classification: can parliament enact the law? Ie head of power
o Criminal law under s 91(27)
3 requirements: (RJR)
1) it had a criminal law purpose
Margarine Ref: public peace, order, security, health, morality
Public safety = protecting public peace, order, security, health
Courts also consider if historically its been considered criminal
Gun control has repeatedly come in the criminal sphere
Look at para 33
Main purpose is the threat to public safety
But this criminal law purpose also needs to be attached to below
2) Prohibits
s 112 prohibits possession w/o registration example
91 CC prohibits possession w.o licence and rego
These 2 are backed up by penalties
3) Penalizes
s 115 penalties
91 CC
SO CLEAR THERE IS A CRIMINAL FORM
CONCLUDE: CRIMINAL LAW
Albertas Arguments:
1) Act is regulatory and not criminal
o
o
o
o

The complexity makes it more regulatory than criminal: NO, fact that act is complex
does not mean it is not criminal law (compare to Food Act and Enviro Act). The offences
are clearly defined in the Act and not defined by the admin body.
Prohibitions not regulatory in nature: NO, they stand on their own not to ensure
compliance with a scheme
Only way parl could address gun control is to outright prohibit all: NO, Ok to go
about it indirectly. Can have exemptions in criminal law (RJR case)
Chief registrar has discretion: But did not have a wide discretion and we need to
account for the scope. The offence is not defined in a administrative body like some of
the other regulatory regimes (counter)
2) Indistinguishable from existing provincial property regulation scheme (92(13))
Gun control same as some other provincial schemes like land registries: this
argument overlooks the purposes
Look at purpose behind both scheme and it is clear that cars are not the same as
regulating guns bc of the dangerous nature
All guns pose a threat to public safety guns cannot be divided into categories
Parliament didnt enact this to regulate property but on the basis of their social mischief
and harm they can cause the public
Also the characteristics (ie car care about previous title)
We register cars for a different reason than we register guns
The primary uses of guns and cars are distinct.
Fundamentally, we may say we shouldn't
Gun control law enacted by the Firearms act does not overstep bc the effects on
property rights are incidental and in pith and substance it remains criminal in nature.
Nothing in that detracts from provs ability to regulate property aspects of guns
But LB says the reg of a firearm to make it more difficult to use/possess to promote
public safety is different than regu of cars, prop, etc. to collect tax, know about title, etc
o Regu piece of prop as prop as opposed to the effects of the prop
3) Undue intrusion into provincial powers?
This legislation goes so far beyond criminal law that it intruded provinces power over civil
rights and property
Balance of power must be maintained, the question is is the power incidental or
significant?
o Incidental effects are constitutionally irrelevant
o If substantial that they show the law is mainly in p &s regulation of property then
relevant
o NOT more than incidental
It does not prevent provinces from regulating guns in their province the property and
civil rights aspects
So it did not disrupt the balance
Double aspects doctrine allows this
Federal govt allowed to enter new area: new to gun control
4) Not criminal because not immoral to own ordinary guns
No argument here because firearms may be misused to take human life and to assist in
other immoral acts like theft and terrorism
Morality is not a requirement for valid criminal law
IF aboriginals want to challenge the legislation they can go through the charter on their own

HELD: valid criminal law

o Regulating for crim purp and fact touched on prop rights were incidental to purp for
which law existed
o Also said gun control has been within fed juris since confed
o So not stepping into new territory here
Did court make right decision? Bc of the prohibition it needed a registry to back it up. If it
was left to provinces it would be subjective to the provinces so it would differ where you are

Important Principles:
- Criminal purpose is essential: Presence of regulatory features may make law incapable of
being upheld under criminal law
- Where clear criminal purpose found court has allowed some deviation from strict form of
prohibition / penalty; may modify the necessity of form (still must be met though)
o RJR presence of exemptions did not preclude from finding that leg was
criminal in nature
- Harm not required rejection of harm principle: not necessary for criminal law; idea that only
activities that cause harm to others are appropriately criminalized criminal law NOT limited
to activities causing harm to other
o Malmo Levine: personal choice to be a marijuana afficianado was not causing any harm to
anyone else so was not prop within pub realm SCC said psn of marijuana could be
criminalized even if harm from substance only impacted the person consuming. So doesn't
need to involve harm to others.
o Fact that leg aimed at ancillary acts rather than primary acts = irrelevant parliament can
leg either directly or indirectly, it comes back to purpose in pith and substance
o It is the P +S of the leg not parliaments method that is the touchstone of analysis
o Regina v Boggs: Deals w provision of crim code, which made it an offence to drive w
suspended license. Here, convicted of DUI, which is a crim code offence. Now if provl
license revocation or suspension was triggered only in these circs, then it would have been
upheld bc related to promoting pub safety & health but provl drivers licenses can be
suspended for a variety of reasons (ie license can be suspended for reasons not crim in
nature, not paying child support) so cant say suspending license for crim pub purpose bc
may be no rship there. So crim law was overreaching to say in all instances it was crim.
o Criminal law cannot be adjunct to regulatory purpose and must be clearly linked to criminal
purpose
-

Can be instructive when thinking about crim law to contrast approach taken w crim law power,
with the approach adopted in other significant heads of power
o Ie T and C, pogg
o Under other heads of pow, courts repeatedly hold fed legis cant be supported on broad
generalized purposes ie inflation generally or protection of enviro amorphous categories.
o To be valid legis under pogg or t and c, fed legis has to be narrowly drafted, enacted for
purp which is narrow and clearly defined
o The crim law power needs to fly in face of that
o Comes back to concept as crim law power being plenary in nature
o Crim law doesn't suffer from same restrictions

CLASS PROBLEM
- In p and s this is still about dealing w prop and civil rights

So long as in p and s about civil rights, it can incidentally touch upon the crim juris
So mere fact might have some connect to crim law is not enough
Incidental effects are ok it is about in p and s, what is this about

Canadian Constitutional Law Lecture 7 Week 4: Tuesday

POGG Power:
- s 91: fed gvt can make laws for peace order good governmentsee section
- What is the SCOPE of POGG?
- Examples held within POGG; aeronautics; incorp. of cos w federal objects; power to
enter into treaties, national capital region, atomic energy, drug control, temperance law etc.
o Within fed juris by virtue of POGG
Basic principles:
- Formulation of POGG is not particularly novel or new not unique has common
features w other jurisdictions but also w prior imperial statutes in the colonies
o For example POGG was a common feature of earlier british statutes which estabd
colonial statutes in BNA for gen lawmaking power in respect of matters of pub
imptc; give colonies method of governing (found in consti act 1791 act which split
province of qbc into upper and lower Canada)
o In 1840 union act of 1840 brought u and l Canada back together and formed
Canada
o So formulation of POGG has predecessors
- POGG is Residuary power
o Because it confined to matters NOT coming within class of subj matters assigned to
provinces exclusively
o Situating this residuary power in the fed gvt is in contrast to US and AUS jurisdiction.
o US 10th amendment: power to the states
o S51 of AUS consti sets out Cth Power and s 107 says residual power is to the
States
o Suggests that what was contemplated when consti was drafted was a strong
central gvt but all depends on how specific powers are distribd and how they are
allocated bw provs and fed gvt
o For example although the AUS fedm system reserves residue to states, there are
39 enumerated heads (more than Canada) so cant just look @ where residue lies,
also have to look @ effect of sections which give juris to one or other level of gvt
o 2 sweepings heads of power in Canada and gives a lot of power to provinces
Property and civil rights 92(13)
Encompasses anything that could come in private law prop, k, tort
Early decisions of JCPC interpd prop and civil rights clause in 92 to be
something of a resid pow in and of itself
This hasn't been picked up on, but the idea gives us a sense of how broad the
partic power is
Arguably very impt power, more powerful than pogg
This is bc even if we look @ analysis from past weeks, we look @ other major
heads of pow in fed juris t and c, crim law, etc. budding up against prop and
civil rights bc these things gen have an impact on prop and civil rights
The biggest battle in terms of consti jurisprudence, is bw 1 or another fed head
of power and prop and civil rights @ provl level
Anything of a local or private nature 92(16)

Less work to do bc most things which would fall to being a local or private
matter will also be in relation to prop & civil rights
But not completely
But sort of rounds out idea that provs have subl auth
o Idea of resid power was debated truly resid in nature or general power?
POGG is not a general power
o Some say general power bc of how situated in s 91
o Support for this can be found in wording of s 91 states enumd heads of power that
follow this stmt are listed as being for greater certainty but not to restrict generality of
the foregoing. So suggests enumd list of things similar to what is stated in gen
paragraph.
o But this is not helpful for POGG we read consti in context
o When we look at s 91 more carefully, we see enumd heads of pow cant be
characterized as just examples. They are not simply examples of POGG
o If we look at what is enumd in s 91 there are a number of heads of pow which
suggest strongly not meant to be a list of examples of POGG ie. T and C; banking;
bills of exchange; bankruptcy; interest; marriage & divorce these things would, but
for enum here, be subj matters which would belong to prop civil rights in provinces
so u cant say that these enumd heads of pow are examples of fed juris under
POGG bc several heads of pow are more properly provl juris
More support for this when we look @ s 91(2)(a): unemployment insurance
expressly held by courts, till added, to be something, which fell under prop
and civ rights. It was added to fed gvt juris by consti amend in 1940.
o So enumd heads of pow are NOT examples of general power of POGG
o This idea of general power doesn't accord with our history and judl prac in terms of
interp consti in div of powers cases
Court will look @ whether specific enumd head of pw to situate the subject
matter
Only if doesn't fit, do u move to more general
The general doesn't override the specific
So POGG then, is what u have leftover after u have looked to the enumd fed
heads of pow and the provl heads of pow as sources for provl legis
Illustrates exhaustive princ in action
o Idea we don't have consti gaps
o Provs can only legis if something falls within their enumd heads of pow
o But if not in prov or enumd fed pow, then pogg helps to make sure no gaps by
ensuring captured

3 BRANCHES TO POGG:
1. Gap branch
- Idea that we need to fill holes in overall scheme of distrib of powers in s 91 and 92
- 2 types of gaps
o Matters clearly fall outside s 92 and don't fall within s 91 so just not dealt w
o Matter dealt w in specific but not in complete fashion in either provl or fed listing

ie fed Incorp corps, in some ways, dealt w in s 92; treaties; offshore

resources; official languages
So there are gaps bc some areas assigned to provs, but s 92 doesn't deal w
completely
Ex. incorporation of federal co must come within POGG because there is only
incorporation of provincial objects in consti (alas, a gap!)
Think about the treaty power see s 132 this gives to fed gvt the power to
perform the oblis of Canada as part of the brit empire towards foreign
countries see section
This gives to fed gvt of Canada ONLY the authy to perform treaty oblis, but
not about entering into treaties so only performance under imperial treaties
and silent on whether Canada can enter into
Obviously we need to, and obv reside w fed gvt, MUST FALL UNDER POGG
Also seabed and subsoil on continental shelf outside boundaries of partic
provinces so therefore needs to fall to fed gvt under POGG juris (more into the residual
area then the second type of gap)
Challenge when gvt enacted official languages act
o So the court held the regu of fed inst and agencies was something the provinces
cant control
o The provs don't have juris to regu the fed gvt
o But nothing in s 91 which confers on fed gvt nay authy to legis re: offl languages
o Because gap and provs cant deal w it and not enumd in s 91, therefore falls
under pogg
o So examples of gaps in consti that pogg fills
Also things that arise which could not have been contemplated @ time of consti draft (new
subject matter not contemplated before)
o Not automatic: we need to undertake analysis to determine if new topic is within prov
of fed (ie prop & civ maybe, or local subj mater) so need to determine approp head
of pow pogg is just 1 competing head of pow

2. National Concern Branch

- Early decisions of jcpc said POGG was only applicable when emergency situations
exceptional national crises like war
- But in 1946 Canada Temperance Fed Case, then jcpc rejd this narrow view of POGG as
being only emerg pow and expressly held POGG authd parl to deal w matters of an
inherent national concern
- And here the court says the true test needs to be found in real subj matter of legisIf
beyond local concern or int, and concerning to dominion as whole, needs to fall within
dominion parl (fed gvt) as a matter affecting pogg even though may in other aspects touch
on matters reserved to provl gvt
o This is generally cited as estabing the defn of national concern or the national
concern branch of POGG
Case establishes: Matters of inherent nature which affect or of concern
to nation as a whole = matters falling in POGG ****
o But, they didn't set out the content at all
o No partic criteria
- Then Prof. Letterman argued that there are all pervasive categories of subject matter: ie
culture, life, etc. amorphous and therefore cant dominate distrib of powers

These categories he said should be outside the system and to bring them in, need to
subdivide in approp parts so that action can be taken by approp level of gvt and could be a
combo of fed and provl juris
Then Beetz in Anti Inflation Case picks this up he rejects the idea of national concern
doctrine in that case, he is following Lettermans thesis

Anti Inflation Case: EMERGENCY BRANCH

- Reference case
- Act from 1975, as were regus, and they controlled incr in wages, fees, prices, profits and
dividends of corporations in effort to control inflation
- At time legis enacted, almost 2 years of double digit inflation in Canada
- So combined, around 10% when combine avgs from 2 years
- This was accompanied by high unemployment too
- So scheme set up admind by fed tribs, officers, etc and there to combat inflation by regu of
price, wages, etc.
- The scheme was temp auto end date of 1978 unless termd before or extended
- Interesting thing the legis had been in force for 6 mths pre: ref case
- So people governed themselves by ref to legis
- So things lie collective agmt agreed to with legis in mind
- So @ SCC determine if legis is consti valid
- Was the inflation legis upheld or did the court find it problematic? It was upheld but
getting here was challenging
o Valid exercise of fed gvt under pogg, under emergency branch of POGG
JUDGMENT 1 Laskin + 3
o Valid: Crisis Legislation, Rational Basis (reverse onus)
o Looked @ what law is aimed @
o P & S = aimed at inflation
o Talks about evil meant to combat by legis
o His approach to POGG is simpler than others bc based on concession (those opposed to
legis saying if legis were to be considered valid then it would be by reason of it coming
under emerg branch of pogg)
o So if emerg then valid; he proceeded on this basis
o But since proponents of legis also argd on basis of crisis legis
o Laskin looked @ whether could be supported under emerg branch of pogg
o Bc if this was ok, didn't have to deal w amorphous category of national concern
o So his decision confined to emergency, doesn't address national concern
o He recognizes diff approach bw emerg & national concern
o He phrases it in terms of crisis legislation
Is there a diff bw emergency and crisis?
LB says: arguing @ law is all about language. There are some cases where u can use
them interchangeably for POGG and wont matter, but sometimes it will matter
sometimes u can have a crisis in sense that u need to deal w it, but would expand juris too
much to say we can just entrench on provl to accomplish @ national level
So the way the problem is chard informs the decision
Laskin uses preamble to identify purpose his comments on the preamble are such
that it is suffic indicative of parls intro of a far-reaching program to combat a serious

national condition. Validity doesn't stand and fall on preamble alone, but it provides a base
for assessing the gravity of the circs this legis is trying to address.
HE ADOPTS A REVERSE ONUS; IS THERE A RATIONAL BASIS FOR THE
LEGISLATION. Here the onus has not been met therefore it is a rational basis. Court
does not have a positive duty to prove the rational basis
o Is there a crisis? Is it valid crisis legislation? 4 main issues:
1) Did the act believe the federal contention bc it excluded provincial public sector from its
scope (even though just temporary)?
2) Is the federal contention assisted by the preamble of the act?
Yes base for assessing the gravity
But again we see Laskin using imperative words but no characterisation as emergency
He also admits that no act can stand or fall on the preamble alone but it assists in the
gravity
3) does the extrinsic material assist in finding it a crisis leg? (Q is there a crisis)
Does it persuade court there is a rational basis for the legislation?
This is a long way from proof we normally consider, simply a rational basis for legis. This
rational basis test means u don't need convincing evidence, at least not in the sense u
would have in a normal case.
Ie can we rationally connect this legislation to the crisis
YES lots of proof there was an inflation emergency
Do not need to use the exact words emergency
When we use this standard we dont need so much evidence bc this significantly lowers
the bar
Pg 190 he effectively applies a reverse onus (..as a whole) basically says that
parliament says it so we believe it no onus on crt
Says crt would be unjustified in concluding no rational basis
So only no crisis if compelling evidence there is no crisis
So no obli on court to find an emergency
So court doesn't have to make finding of fact that emerg exists those opposing have to
prove emerg doesn't exist
Ritchie also adopts the negative or reverse onus for the existence of emerg ** (makes it
tough for those who want to challenge the law)
He says rationality for decision can be supported by reference to parl juris over other
things:
Monetary policy (monetary phenomenon
T and C
o However, LB says she doesn't think that line of reasoning is helpful or persuasive bc
if fell under monetary policy or t and c, would not be pogg (cant use other heads of
pow which might potentially capture it to justify why falls under pogg)
o Overall, he says yes, valid crisis legis and all u need is rational basis for legis
-

JUDGMENT 2 Ritchie + 2
o Agrees w Laskin on whether valid legis; must fall under national emergency
o But rejects national concern doctrine
o Says u need urgent and critical situation adversely affecting all Canadians and
being of such proportions so as to rep an emerg

o So he talks about emerg, not crisis

o He says POGG can only be invoked to deal w genuine emerg and only to support
tempy measures
o He agrees w Beetz re: rejecting national concern doctrine (so on this small point of
emergency powers by Beetz is maj)
o But whether upholds law, beetz is in dissent
o He said the legislation MUST BE TEMPORARY
o Ritchie looks at preamble nothing declares any kind of emerg
o Goes on to say not necessarily fatal bc expression of emerg doesn't need to be
stated in express words in statute
o Can rely on extrinsic evidence he was satisfied that parl was motivated by sense
of urgency created by exceptional circs
o Like Laskin, reading all this together Ritchie says notwithstanding no state of
emerg, we can see parl dealing w emergency legis
o Adopts reverse onus (clear evidence emerg does not exist) - onus on those
challenging to disprove emergency
-

JUDGMENT 3 Beetz + 1
o Addresses national concern and national emerg
o In the outcome he is dissent
o He disagrees that national concern and emerg amount to same thing
o Concerns more along slippery slope idea that POGG could be used to strip provs
of all their powers if run wild
o Says if parl is allowed to legis on inflation as matter of national concern then this
would wipe out provl powers bc inflation is so broad and sweeping that effects
would be too big an intrusion into prop and civil rights
o Refers to Parsons case:
We had to narrow/restrict scope of t and c
If enumd fed pow of t and c which is broad needed to be narrowed and
construed to not trench of provl juris and destroy equilibrium of consti then
with an unenumd power like pogg, then we cant simply add it to list of powers
bc too big & would simply take over
This is an amorphous general power that has a lot of elements to property
and civil rights; not good for provinces
o Also says not true emerg bc inflation is not a new problem
So bc not new doesn't fall under national concern
But not necessarily the case
o However, Beetz accepts that the emerg power of pogg is not confined to war,
inflation could be an emerg and parl under pogg is not ltd to reacting can be
proactive to prevent emerg
o Also agrees emerg is temporary and it is temp bc alters distrib of pows and tempy
overrides prov;l authy (all agree on this)
But beetz requires express/explicit declaration of emerg
o The nature and features of emerg powers dictate manner and form which should be
exd delib thought w invoking the power, there is an emerg in fact

o Doesn't mean just use ritualized words like this is an emerg but need explicit stmt
from which u can say this is an emerg bc would give parl power to potentially
override provs in every field
o Looks at Preamble, says cant find anything showing it was dealing w national emerg
in consti sense
o So he says fatal that act doesn't seem to suggest emerg @ all
o So he goes through indicia to determine emerg: exemptions, comprehensiveness of
the legislation, etc indicia
Key Principles:
o Emerg power will be supported if rational basis for it
o But u do need an emerg
o And the emergency branch will support only tempy legis (temp suspenstion of
consti balance of power between prov and feds)
o So if legis per pogg to deal w emerg, u need an emerg and only good for so long as
need to deal w emerg (temp suspension of usual balance of powers which our consti
creates)
- Problem in this case re: finding an Emerg, Beetz may be right bc he says there is
nothing in act which asserts an emerg situation, preamble has reasons but nothing here
rises to level of emerg necessary. But also a bigger problem w finding an emergency in this
case
o The actual evidence, incl gvt report, showed inflation trending down @ time legis
enacted and this report wasn't seriously challenged showed inflation in Canada by
time gvt takes action is on the waneso the situation wasn't bad. So even if u call it
crisis vs emerg, there wasn't much of either
o So the principles supported in anti inflammation ref the evidence indicates the
situation was less than an emerg this makes it difficult to challenge fed legis on
grounds of no emerg, bc if situation in this case raises to level of emerg, then this is
a low threshold (esp bc reverse on us and only need rational basis) so then easy for
fed branch to use pogg
- Note, all the criticisms about fed trenching on provl juris
- In the decades since, hasn't been a challeege (just bc gvt hasn't overstepped yet,
doesn't mean it wont) but big takeaway about emerg power is yes, need an emerg, but
what that is - an emerg or something less it is a low standard (based on princ and facts
from anti inflammation case)
Then Emergencies Act comes into place
o Act defines national emergency: urgent and critical situation. See slide
4 categories of national emergencies:
o Public welfare
o Public order
o International
o War
- Gvt needs to declare existence of emerg, which needs to be laid before parl for
debate and confirmation and needs to be preceded by prior consultation w provs
- Where emerg only effects 1 prov, the provl cab must agree they are incapable of
dealing with the emergency

So the province first needs to say we are incapable of dealing w emerg, so fed gvt
can step in
But note the analysis still has to flow from the consti itself, not the legis ***
We need to ask ourselves what roll this legislation will play: it must have some relevance to
interpretive exercise on whether something is emerg for purposes of POGG.
BUT WE DO NEED EXPLICIT DECLAR OF EMERG like Beetzs arg in the anti
inflammation case (tacit acceptance of Beetzs argument)

Since, national concern branch of POGG has been recognized many times. 3 seminal
cases re: national concern doctrine.
Johannesson 1952
- ESTABLISHES FED JURISDICTION OF AERONAUTICS
- Regu of aeronautics is national concern
- Talks about growth in air travel since ww1
- Talks about extension of air links between settled and northern parts of country essential
to opening country, so to deliver mail bw communities and development of resources
throughout country
- So aviation decided to be national concern
- Locke J says need stmt of well recognized facts to demonstrate that field of aero is one that
concerns whole country
- This is correct, but ignores prior decisions of jcpc which rejd using national importance
doctrine re: partic industries so big step here
Munro
- Creates the National Capital Region through National Capital Act that established the
commission and gave to them zoning and expropriation powers over Ottawa hall region.
Argued that legislation was ultra vires fed govt.
- This came to court bc the commission expropriated Mr Ms farm for a green belt for the
plan of the development of the region
- He fought them taking his land on the grounds that it was not in the jurisdiction of the
federal govt
- Bc it deals with property so likely that it would be the provincial power
- So M argued UV fed govt bc it conferred these powers on fed
- SCC: upheld act and said intra vires because the purpose of the act was to ensure and
preserve the nature of the national capital of our nation and that provinces either
collectively or individually could not handle this
- Prior to this decision efforts to use cooperative federalism had proved unsuccessful (it
would require Ontario and Quebec to work together)
- Our national capital should have national significance and if we cant get Ont and Qu to
agree then the only way to accomplish this is to give it to fed
- Again, no sense of emergency in this one and held to be of national concern
- So the court has no difficulty conceptualizing the need for a national capital region and so
therefore puts it under POGG
Zellerbach
- Z was logging co and leased waterlot in beaver cove
- And it leased the water lot so it could dump wood waste

Dredged area of cove to move wood waste further into the cove in order to enable it to
construct new structure
- This woodwaste wasn't dumped in ocean or in Johnson strait, still confined to cove within
terr of BC
- Not creating new waste just moving what was there to location further out
- So ocean dumping control act fed legis made offence to dump @ sea without permit
- Sea defined to incl the internal waters of Canada, other than fresh waters
- The sea incl any non fresh water within provl boundaries
- See legis in page 205
- Waters of beaver were navigable and flow into Johnson strait which is connected w pacific
ocean
- No known effects on marine life, etc.
- Is s 4(1) prohib on dumping consti wrt the dumping in waters within province?
o Is dumping @ sea for preserv of marine ecology extended to incl regu of marine
waters within single province?
- Purpose of legis: to regu dumping @ sea to prevent various harms to marine enviro
o Also to fulfil oblis under intl conventions
- Province conceded parl had juris under 91(12) to prevent dumping, and parl had juris to
regu dumping to protect fisheries in extra provincial waters, and within prov waters in order
to prevent extra provl pollution but Crown Zellerbach argued juris did not incl or
extend to controlling dumping within provincial waters which doesn't have a
pollutant effect in extra provincial waters
o So saying if it stays in province, then UV
- They point to fact that there appears to not have been dispersal of wood waste no
evidence of this
- There was also no ev of effect on navigation or marine life
- Potential heads of power invoked here @ fed level = navigation and shipping - s91(10)
and s91(12) sea coast and inland fisheries and POGG; provl heads of power = local works
s 92(10) and 92(16) and 92(13)
- FED: argued the control of dumping is part of a single matter of national concern
national dimension and therefore falls within POGG.
o They say u cant divide pollution into inter and intra provl
o The law is chard as prevention of ocean or marine pollution and controlling dumping
is integral to the scheme single matter of national concern
o So here, gvt defending on basis of national concern, not emerg
Justice Ladaine 4 important elements of POGG power
o 1) National concern doctrine is separate and distinct from a national emergency
Clear, express recognition that not the same thing diff circs
o 2) National concern applies to both new matters that didnt exist at confed and to
matters with originally were private or local in a province (so provl juris) now
national importance (absent emergency)
o 3) To qualify as national concern subject matter must have singleness,
distinctiveness and indivisibility that distinguished from matters of provincial
concern and scale of impact on provincial jurisdiction that is reconcilable w distrib of
power (w our understanding of federalism)
o 4) In determining if matter attained (#3) then need to consider a failure if the
provinces dont legislate Provincial inability test national concern exists

whenever an aspect of a problem is beyond provincial reach bc it falls within

jurisdiction of another province / federal government
What would happen if provinces are capable but did not legislate?
This test is one of the indicia for determining whether a matter has the character of
singleness or indivisibility required to bring it w/in national concern doctrine

Newness
o Is newness something required/relevant for govt to exercise this national concern
branch of the POGG power?
o In Anti Inflation case: Beetz in above case says there does need something new to
use the national concern doctrine he said would be fatal o/wise
o Pigeon J in Hauser case upheld an act on the basis of national concern bc it was a
new one, aimed @ genuinely new prob, and couldnt be considered at federation
then it therefore has to be under national concern
o LB agrees w Hogg who faults this reasoning and says its irrelevant and not
necessary (calls this reasoning tortured)
Newness should be a neutral factor in analysis
Shouldn't matter whether new or not
o Ladaine in this case does not really make newness a priority he says the national
concern applies to new and old. At the very list it suggests indifference to this
consideration of newness. He is seemingly removing this from the equation.
o The state of our jurisprudence is that newness is not really a relevant
consideration
Distinctiveness
o This question of distinctiveness is what divided the court here in Zellerbach
o Lafaray dissented on this point
o He said marine pollution is not distinct enough to be a matter of national concern
o He says to allocate this to fed gvt excl would sacrifice princ of fedm @ base of
consti
o And goes back to Letterman and Beetz and anti inflam ref and says the environment
is no limited subject or theme, it is sweeping, if it were to be a new federal power by
virtue of pogg then provincial autonomy and power would be diminished
o We cant attrib enviro to a single head of pow
o Ocean pollution raises the same consideration
o Marine is not capable of being distinct bc the pollution intrudes to air pollution,
coastal activities etc and this would spread to far on provincial powers and concerns
o Protection of enviro cannot be limited to a single head of power. The same
considerations of Beetz apply here.
o Too big to belong just to the fed gvt this would intrude too deeply into areas of
provl juris (recreation, industrial activity, resources, etc)
o Majority in contrast: While, marine pollution is affected by air pollution and our
uses of the water etc it nevertheless it does have reasonable and ascertainable
limits in so far as it impacted on provl juris
o So the extent to which the fed law impacted on provl juris was defined and limited
and so thats what made it ok

So while L says the impact is too big, the majority says its impact on the
sphere is sufficiently little so therefore it is probably appropriate that
fed can legislate here
Why require distinctness though? Should this be part of the test?
Protection against the tendency of national concern branch to swallow up
every provincial head of power
This is because it is a broad potential head of power and it could sweep up all
provl powers if interpd suffic broadly

Provincial Inability Test

o The need for one national law that cant be satisfied even by cooperation by all
levels of govt
o There is divided thinking as to the importance of this test
o Hogg says that this is the most important element of national concern
doctrine because we should only be using it when we cant get coop of provinces to
deal w subject matter
Where failure of prov to deal w/ would adversely affect other provinces
Need to look @ impact if one prov fails to legis
o Professor Monahan says that this does not need to be the main concern and should
just be one indicia bc there is nothing to suggest that this should govern or be the
most important factor
Distinctiveness is just one element. Could be circs where we don't need provl
inability test but subj matter is such that it is inherent national concern and
should be able to deal w it under pogg.
o LB is in between
But the reality is that if they could all get together (provinces) it would be a
patchwork bc it would be impossible to draft, implement and police in the
exact same way and there are situations where uniformity is a serious
concern
ULTIMATELY HELD:
o Marine pollution incl provincial waters & marine matters is clearly a matter of
concern to Canada as a whole
o This is bc of the interrelatedness bc of the inter and intra provincial impacts
that it requires single or uniform legislative treatment
o So in the case of marine pollution, bc of the spill over it requires a national
regulation
o The failure of one province to protect its waters would spill over and effect
other waters and pollution of extra provl waters which Canada has juris over

Canadian Constitutional Law Lecture 8 Week 4: Friday

THE CONSTI & ABO RIGHTS
Need to understand sources of law and consti juris wrt Abos
S 91(24): authy to fed gvt over Indians and lands reserved for Indians
S 35: who has rights
Indian Act
RP
CONSTI JURIS S91(24)
- Fed respy to legis in area of abos is given to federal gvt and comes from s 91(24)
- This section says that the fed gvt has juris over Indians and lands reserved for indians
- This encompasses 2 heads of power:
o Over Indians as individuals
o Power over lands reserved for Indians
Juris over Indians
o Only exercisable in respect of people who are Indians
o But doesn't limit geographical juris aka on reserve or not
o It's the people over whom fed gvt has juris whether/not connect or reside with Indian
land
Juris over Land
o The land can be exercised in respect of abos and non abos, so long as law is
relating to lands reserved for Indians
o Includes land designated as reserve
o And includes land designated by the RP (recog certain lands as being reserved for
Indians) wide territory and belongs to fed gvt
- Indian in context of consti act 1867 is not a defined term so wont find a defn of what
constitutes an Indian but understood to mean all abo peoples living in Canada @ time of
euro settlement
- The term Indian is not accurate or approp bc obscured diversity of abo peoples and was a
misnomer (conceals this diversity)
- Now we call them aboriginals, or first nations peoples instead of Indians

CONSTI JURIS S35(1)

- S 35 enshrines and recognizes the rights of abo ppl so consti status to abos and
their rights which incl treaty rights
- Hogg sets out 4 reasons for why we need consti protection for abo rights:
o 1. Lack of any kind of analogous common law rship
We don't have a CL understanding which is analogous to how the abos view
rights and how we should be viewing their rights (re their rship w land and
their rship w the crown who has a fidy duty w abos)
o 2. Doctrine of parl sovty Parl can make any laws sees fit
So unless protected, abo rights vulnerable to change or even abolition @
whim of gvt
o 3. Consti Act 1982 incl. the Charter a lib rights doc which incl protection for
quality
Need sep protect for abos to protect them from charter
- Note: WHY DO ABOS NEED SPECIFIC RIGHT TO PROTECT FROM CONSTI? Equality
is equality of all the test means that ppl are supposed to have the same advantages or
disadvantages and if u are disadvantaged bc u have been discrimd against then u can
make claim for equaly programs u need to set up for things like abo rights are discrim
against rest of country so thinking that we need protection so charter cant be used to
derogate from abo rights (bc privs to one group so unsympathetic enviro to rest of country
and charter is about equaly for all)
o 4. The fed gvt could simply extinguish abo rights and title without any
requirement that abos be consulted in the DM process in relation to their
rights or title
Further ensured by s 35.1 which says consti amendments which affect abo
rights cannot be made without prior consultation of the amending people
- While consti act 1982 protects and talks about abo rights doesn't really define them for
this, we need cases
- Also note s 35 lives outside of the charter significant bc means abo rights are not
subject to s 1 justification when they are infringed ***
o There is a justification process but not subject to s 1 of the charter
- Also not subject to s 33 (notwithstanding) legislative override over abo right
-

Then we have to ask who are the abo peoples? Although the consti talks a bit about it,
doesn't define what abo rights are but does define who should be considered abo people
s 35(2) says abo people incl Indians, inuit and the metis
o But this is the extent of the defn
So obv going to incl status and non status Indians, but also groups prior to 1982 metis
and inuit
But no assistance in terms of how we define these groups
But why do we need a defn at all? Reason: historical exclusion of the metis and inuit form
the concept of abos to guaree that these groups who were excl in past would be incl for
the purp of rights protection
Metis are intermarriage bw French fur traders and abo women so we have work to do
when it comes to non first nations groups

Further protection in s25: intended to make it clear guaree of ch and rights and
freedoms shall not be taken as to derogate from any abo rights. Makes it clear that lib
western rights enshrined in ch, cant derogate from abo treaty or other rights
o Bc otherwise ch could be used to cut down signif of abo rights
Note: s 25 talks about abo treaty or other rights or freedoms
o Therefore s 25 is even broader than rights protected by s 35
o SCC has recognized that other rights can incl things other than rights as we will see
in case law or abo treaty rights
o In Corgier: SCC expressly recognized that others rights held to incl things like
statutory rights
The court ltd this said fact that legis relates to abo people is not enough to
bring in scope of s 25 in terms of other right or freedom. The case was
decided on other grounds.
o Other rights: significant
There are some crim code provisions, and other stats, which require
courts to take into account special abo circs before sentencing offender
ie community involvement poss that these could be considered other
rights
o S 25 could be used to challenge the crime bill bc mandy min sentences do not allow
Js to take into acct other factors that they normally would

INDIAN ACT
- Narrow in its application
- CIRCUMSCRIBED DEFN impt to note Indian act only applies wrt those peoples who are
caught when call together defn
- So Indian for this act is defined through combo of provisions which define the band, the
registry and the ppl entitled to be registered
- So the defn of a band is basically a body of Indians in s 2
o Refers to common benefits: what is possessed by band is not indiv rights but
collective entity
- S5
o Register maintenance of Indian regr in which names recorded of every person
entitled to be regd under act
- S6
o List of criteria for who can be regd under act
o Changed over time; used to be much more limited
o Used to be if u were female abo and if u married non abo man u lost ur Indian
status; not amended until 1985
o So number of ppl caught by s 6 has changed over time
o But nonetheless need to be person regd
- Status Indian meet s 6 criteria and entitled to be regd
o Expressly excluded any metis or inuit
o So some approx 200 000 ppl who are Indian in broader sense and within the
meaning of s 91(24) don't come within Indian act so these peoples are not governed
by any provisions in Indian act
- Other important sections of Indian act s 18 and 37
o Relate to reserve lands
o 18: juris over reserve land to fed gvt

o
s 88
o
o
o

37: rules governing mgmt and transfer of the lands

Come back to this later w treaties

And ability of provinces to enact laws in relation to abo ppl
But as a general rule even though the fed gvt by s 91(24) has excl juris over
abos, we know through Pith and Substance analysis, provl laws of general
app can and do apply to abos and do apply to reserve lands so long as
standard div of powers/p&s test met (even if they are incidental)
o Example: cant be a licensed doctor without getting provincial license; provl traffic
laws apply to Indians on our roads; conversely, same traffic laws apply on or off
reserve
Exceptions to the general rule
o Indianness
o Singling out
o Paramountcy
o Natural resource agreements
o Constitution act 1982 s 35
- BASIC RULE W SINGLING OUT AND INDIANNESS: laws cannot single out ppl for special
treatment (cant be directed to abos) and cant affect indianness (abo rights). Their laws can
have incidental effects though
- All of these things subject still to div of powers analysis
o Apply re: provl laws
o It allows provincial laws that would otherwise not apply to Indians (through
interjurisdictional immunity) to actually apply
Royal Proclamation 1763
- Not really a source (misnomer to call this a source) bc the rights were not derived from
this
- But rather it recognizes abo laws but did not create them, even though ppl thought that
- Issued following treaty of Paris where France ceded control over NA territories to brit which
were still used by the first nations people
- Early settlers engaged in abuses from aboriginals in taking land from them. Following RP
1763, 2000 chiefs entered into a peace with British colonists
- Noteworthy that many early treaties and agmts bw abos and brit were called peace and
alliance treaties; nation to nation agreement to peace. Abo get security of land and
Brit gets support of abo.
- The obvious q is why is 2013 do we care about the RP which was signed in 1763
o Why relevant? Estabs 4 principles and the framework/approach taken to abos. Sets
the stage.
o 1. First nations had right to their lands
Unlike aus, terra nullius didn't apply in Canada
So we started from base of recognizing abos inherent right to land (this is our
starting point).
o 2. Prohibition of private sale of Aboriginal land
These lands could be sold only to the crown so abos couldn't enter into agmts
with private industry/ppl to sell their land
This is what brit was trying to accomplish bc of frauds/abuses and to ensure
brit controlled land

o 3. Process for surrender to crown

o 4. Imperial control over settlement
by stipulating abo lands could only be transferred to land, they could only
control land of new terry
These principles remained we transgressed them for a period but last 25 years reenlivened and formed basis for how we deal with abo title and self gvt see this w cases
like Guerin
Early decisions that recognized abo rights talk about them as originating or
emanating from the RP
But it is evident from even the text of the RP that was being described in the RP were
the fact that rights being described and recognized not created. This is bc we
recognized abo peoples had pre existing rights
So this is 1763; before that the RP was regarded as the source of abo rights
But not until Caulder case in 1973 that SC recogd abo title was legal right derived from
abo peoples historic occup and psn of tribal and ancestral lands, rather than grant by RP
******
o The upshot of Caulder was to recog that abo rights arise thru opp of CL and
don't depend on exec order, stat or proclamation to exist
This theory was re-confirmed by SCC n Guerin

Guerin
- 1956 A golf club wants to obtain VERY valuable land on reserve in order to expand golf
course
- Proposed certain terms to the aboriginals because the land was not being used by the
band
- They said we don't need the land right now, so why not earn some money thru lease
- But they couldn't deal w the land themselves cant be transferred to priv indiv, need to go
thru intermed of crown
- So the rship had to be negotiated thru crown and land had to be surrendered to
complete deal
- The band council wasn't told of all the terms of the lease
- They werent told of the terms of the golf course proposal or given copies of it
- They understood a vague general presentation w ref to 15 yr time periods
- Not told other potential interested developers
- The improvements also became difficulty bc not told improvements to land made by golf
course wouldn't stay w the land
- The lease payable was less advantageous than should have been and band only agreed
bc thought after initial 10 yr period could renegotiate every 5 years
- When lease voted on by council to surrender land the band understood lease to be for
10 years, not 15, that there wouldn't be 15% limit on rent increases, and that they would
retain the improvements to the land when lease over
- Also terms not in proposal: for determining future rent of land; and right of golf course to
term w 6 mths notice at end of initial 15 year lease period see p 226
- Lands were surrendered on these terms
- Band not even given copy of lease for 12 years after signed
- Terms of lease entered into bore little resemblance to what was discussed @ surrender
meeting

So terms of lease did not rep what the abo peoples in this band understood was going to
be the deal; did not represent what was discussed at the meeting
- This is the basis on which they decide to surrender land to crown
- In the lower courts the issue of crown liab was dealt w on basis of a trust
o On basis of exist or non exist of a trust
o SCC disagreed w this approach to the issue
o Instead of a trust, they set down new principle: say it is a fidy duty w abo peoples
Fiduciary duty owed by Crown
- The court expressly recognizes fiduciary duty to deal with the land for the benefit of
aboriginal peoples
- The Crown has a duty to have the land surrendered before it can be alienated
this surrender rqmt is to protect Indians from being exploited
o So if we are trying to prevent exploitation then the crown cant profit from or exploit
that relationship
o This responsibility is reiterated in the Indian act - look at s 37(1) and the fact that it
implies the crown knows best gives rise to this fiduciary relationship as well
- Fiduciary relationship is not exhausted by categories it is of a sort of its own definition
- This is not a trust does not have all the elements of a trust - nor does the
surrender rqmt give rise to a trust
- The nature of the rship and fact that abo title rights arise pre-brit involv w land and fact that
abos couldn't deal w land unless went thru crown so hugely disadvantaged bc crown =
intermediary
o Trusts don't work like this; neither to fid duties but still the best way
o So court creates new fid duty bw crown and abo ppl (SUI GENERIS)
- They cite Caulder: abo title = legal right bc of psn and occup of tribal lands this defn of
rights coming from psn and occupation is significant
o This would appear to be a major step forward
o Not limited by stat defns
o But nevertheless still a circumscribed defn
- Arise not simply bc abos here before, but because had legal systems prior to colonization
they had estabd customs, traditions, poli systems and laws
o So reductionist to say rights simply bc here first it was more than them being in
possession of the land.
- This broader conception that royal commission recognized is the defn recognized in an
early case of Connolly v Woolrich (1867)
o But none of this reasoning got picked up in judl opinions
- So arguably our conception of origins of abo rights is impt when coming to define abo rights
and give abo rights partic scope and to defining legal tests for abo rigts; this is a narrower
conception of rights
- The more ltd our understanding of the basis on which abo rights arise, means we will have
more ltd understanding or defn/more restrictive defn of abo rights as a concept
- The court also says a change in sovereignty over partic territory doesn't affect
presumptive title. The aboriginal title underlays everything and the mere fact that
when brit obtained sovy over land didn't impact presumptive title
- Finally court recognizes that abo title and interest in land isnt limited to interest in reserve
lands not just lands which constitute Indian reserves created by fed gvt the int in land
exists irrespective of boundaries we drew or whether on reserve or not
- So after identifying origins of abo title, court then discusses the nature of abo title

NATURE: sui generis

o Type of thing that we do not have established category for
o The nature of abo ints = chard by gen inalienability
o Coupled with the fact that the crown under obli to deal w land and crown has obli to
deal w land solely for benefit of the abo group who is surrendering their land
o This relationship is what gives rise to the fiduciary duty of the Crown
- The purpose of the surrender reqt was to make sure brit and crown had control over
settlement and protect abo ints and prevent exploitation see this in RP too
- Talks about frauds and abuses to the great prej of our ints
o Prej ints of crown = most significant
- There was a reason for wanting to have lands surrendered to crown
- This responsibility is reiterated in Indian act s 18 parliament conferred upon itself
discretion to decide where Indians best interests must lay
- Discretion in fed gvt bc authy to make laws for abos per s 91(24)
o So discr to determine what is in best ints of abos
o So therefore need to exercise discr approp
o The obligation is also sui generis and cannot be compared in any way to other
fiduciary relationships
Significance of Guerin: 4 Key points
o 1. Recognition of CL pre-existing right and title which is based on historic occupation
and psn prior to euros ever setting foot on Canadian soil
o 2. Applies to reserve and non reserve land
o 3. Confirms that the abo ints in the land is alienable except upon surrender to the
crown
o 4. Combo of fact that nature of abo title, where it comes from, and reqt of being
surrendered to crown to deal w, impose on gvt a fidy obli when dealing w abo ppl,
partic re: land dealings which are SUI GENERIS
R v SPARROW
- We follow test when issue of abo rights arises
- S caught with net that was longer than regulation. He claimed that this was under his
aboriginal right under 35(1) Was this existing right? Recognized and affirmed?
- Q before the court was whether the restriction in the regulation was against the aboriginal
right under 35(1)
- Crown argued that the abo right was extinguished through the regulation (crown failed to
discharge this right)
The SPARROW TEST
- When facing aboriginal right?
1. Is there existing right?
- BURDEN OF PROOF ON PERSON CLAIMING.
- Existing: Court held that the right was existing and not frozen in time
- Recognized and affirmed: does not mean absolute right; govt can legislate and infere
with rights under 35(1) but must be heavily scrutinized
- This is where we step out and look at Van der Peet test (integral to distinctive culture)
2. Has the right bee extinguished?
- Onus on State in a CLEAR AND PLAIN expression of intent to extinguish
3. Is the aboriginal right actually infringed with by the State

- Consider: unreasonableness, undue hardship, denial of preferred means

4. Can infringement be JUSTIFIED BY THE STATE
- Onus on the state to consider:
- 1. IS THERE VALID LEGISLATIVE OBJECTIVE
- 2. HAS THERE BEEN AS LITTLE INFRINGMENT AS POSSIBLE
- 3. IS FAIR COMPENSATION AVAILABLE?
- 4. HAS ABORIGINAL GROUP BEEN CONSULTED
- Court noted that this is not exhaustive and case by case analysis
- To answer this, need to determine content of right
Van der Peet
- Seminal case for defining scope of abo rights (sparrow = framework of test; VDP =
determine whether abo existing right w/in meaning of s 35)
- Provides content for Sparrow test
- FACTS: fishing related offence. V was charged under fisheries act w offence of selling fish
caught pursuant to an Indian food license. They had an Indian fishing for food license but
selling fish caught for food was prohibd so the regus prohibd selling, barter, trade of any
fish caught under license. V sold ten salmon caught by her husband so not talking about
a large amt of fish. She defended charges on basis she had an existing abo right and she
was exing her abo right to sell fish. Not a treaty right but an indpt freestanding abo right to
sell fish in exchange for money.
- Lamer sets out the interpretative principle:
- We need to take a purposive approach w a generous liberal interp of what is said in
the consti s 35 and we cant lose sight of generalized consti status of what s 35(1) protects
but also cant ignore necy specificity which needs to come when we grant consti
protections to only 1 section of Canadian socy
- So falls to court to define s 35 in way that captures both the abo and the right in concept of
abo rights
- Think about extent to which V actually accomplishes this
o Say we need purp, generous lib interp and reconciled w fact that granting rights only
to one section of pop
o But need to think about aboness and rightsness?
- Rship bw crown and abos if any doubt or ambig as to what falls in s 35 needs to be
read in favour of abos
o U can q this
- The court sets out a test Lamer J
He says to be a n abo right the activity must be an element of a practice, custom or
tradition that is integral to the distinctive culture of the abo group asserting the right
- Then he sets out indicia for the test
o What does it mean to be integral?
Must be of central signif to abo soc
Must be defining char of society; one of the things that makes it distinctive
Centrally signif; distinctive
NB: difference between distinct and distinctive (here we are not concerned
with distinct (unique)
Distinctive is diff than distinct doesn't mean another abo group cant also
have done this
What are the things that made your soc distinctly abo

o Practice has to have arises prior to contact with euros

So need to have estabd tradition before euro contact / settlement (before
they even set foot on Canadian soil)
Once u have estabd that u have this practice, custom, trad which is integral
and that it arose prior to contact, this may still qualify as a present day abo
right even though the practice has evolved since contact and present day
can change the material u hunt with, etc.
Needs to be able to be traced back to pre contact period
Cannot be wholesale reinvention of practice, needs to be evolution
Need to be able to connect dots
NB: Contempy practices which developed solely in response to contact =
NOT RIGHTS
Ie develop practice within first yr of contact w euro settlers, but only
developed as a response to dealing w these people even if abo in nature
not a right under VDP
- Abo rights claims need to be adjudicated under a specific, rather than general, basis
- So applying the test that Lamer sets out in VDP what did court find about V?
- Lamer:
o No right was established: trading fish was incidental to this culture
o On the facts, only minimal exchanges of fish among stolo ppl before euro contact
o This minimal exchange was incidental for fishing for food
o The selling of the fish wasn't integral, like fishing for food
o So didn't satisfy integral part bc only developed after euro contact and development
of trade w euros
o So ltd understanding w practice, custom, trad
APPLICATION:
o Nature - Custom of exchanging fish for money or other goods
o There was no market, when looked at the history of it
No basis for the claim
They bartered or gave as gifts
No regularized trading system
o Exchanges were incidental to fishing so the selling only developed after contact
since this is purely incidental it is not a right BC IT IS NOT DISTINCTIVE OR
INTEGRAL
o The trade between Stolo and the Hudson Bay Company does not date back to
settlement so there is no continuity
o Band society = division of labour by age AND tribal = division my specialization
Fact that this is band level and absence of speciailization suggests the
absence of a market
- HELD: no right
THE DISSENT: LHEUREUX DUBE
- Difficulties with judges right definition
o There are dissents that are strong in this case
o They outline the majority approach
o Rather than focusing on a particular practice or custom they said we need to
understand the rights in a bigger context and higher abstraction

o Rejected the approach for misconceived or construing sparrows use of the words
distinctive culture (overly majoritarian and misconstruing Sparrows use of the word
distinctive culture)
o This distinctive culture should not be related to just activities prior to contact
and shouldnt be limited to only practices or customs or things that raise to
that level bc there are things that may not rise to that level but are nonetheless
rights
o If we circumscribe these rights and the time factor then u limit your ability to
recognize and affirm these rights
o So dissent would suggest that all practices or customs that are connected
enough to the group or the organized societies should be protected under
35(1)
o So does not need to be an integral practice per se
o LARGER AND GENEROUS CONSTI INTERPRETATION
o This is more in keeping with the large and general interpretation we normally give to
constitution interpretation
o And the rights also needs to be viewed through the eyes of aboriginal people
o Also has an issue with the time component
Fails to realize the impact of activities that occurred after contact
There is a hard line in the sand the espouses a frozen interpretation
o Rights encompass only those that are integral but when the presence of
europeaners interfere with those and u develop a new to deal with it then it doesnt
allow for any recognition of this new culture that arises in response to this
o Must use flexible and dynamic approach that does not freeze rights. Even though
rights are allowed to evolve, but still technically frozen because we will not consider
anything that developed after conquest because this is heavy burden on abos trying
to claim right. This embodies inappropriate and un-provable assumptions about abo
culture. This is an arbitrary place to draw the line that seems to contradict the
concept of a fiduciary duty.
o This prohibits the creation of new practices, customs or tradition. Rights that exist
because of necessity, etc. cannot be accounted for. This is circular reasoning to
suggest that abo rights have to encompass only those integral to distinctive culture
and when Euros interfere this prevents recognition of new practices that evolved
from new Euro settlement
o The temporal definition also can not and does not apply to the metis bc if it did then
the metis would basically have no rights bc they are the comingling of the 2
cultures
Majority response:
Lamer would argue that we are trying to recognize rights and achieve balance between
modern Canadian society with traditional abo rights if we do not draw the hard lines. Q is
where do we draw the line?
METIS
Van der Peet test is based on pre contact. The Metis did not exist pre contact.
The majority did address the Metis but didnt answer it specifically. Resulted from intermarriage of
French men and aboriginal women. The court left this aside because in this case it did not matter.
3 options
o 1) No aboriginal rights: problematic because they are in s35 of consti

o 2) The assertion of European sovereignty when abo occupation has to be

established for making land title claim
o 3) Choose some later date, no contact or euro sovereignty but some later date
which is taken to be when Europe had effective control over the territory
The metis must show that they have practice integral to society that existed before
effective Euro control (R v Powley) when court held that this was the time period for Metis
- P claimed abo right to claim for moose in On. Court found as matter of fact that effective
Euro control of upper great lakes passed from Metis some time in and around 1850. By this
time, a distinctive Metis community emerged in Sault St Marie and practice of hunting was
integral and continued to present. Consequently P entitled to abo right to hunt for food.
- The rest of Van der Peet test applies just the time period is different
- Court defined Metis: most difficult to define because result of intermarriage (French
Canadian fur traders in early years post contact that created unique culture that was not
abo or euro)
3 factors (indicia) of Metis identity
1. Self determination: they must claim it themselves
2. Ancestral connection: historical trace of ancestry to an historic Metis community
3. Community acceptance: does the community accept you as Metis? Participant and
member of community
- SCC held distinctive Metis community in this case, P could trace ancestry to this
specific group therefore able to claim abo Metis right to hunt food. These are just
factors; not establishing comprehensive defn but rather important components of future
defn
MID TERM EXAM: 2 fact patterns with associated questions
- Problem based; application of law to facts
- 2 HOURS 15
- 2 PAGE TEMPLATE
- STATUTE MATERIALS ALLOWED
- CONCLUSION SUPPORTED BY ARGUMENT: but address facts against argument and
why it can be rebutted)

Canadian Constitutional Law Lecture 9 Week 5: Tuesday

ABORIGINAL TREATY RIGHTS
Abos had treaties w each other long before euro contact
History of treaty making among own nations
Usually oral treaties to settle things like land disputes, conflicts, incl wars w nations
Trade and marriage agmts were also common among abo treaties ks, agmts, prior to
arrival of euros when euros arrived, brought w them own methods (written treaty docs)
Difficult to understand language came from euros
The treaty bw abo and brit crown didn't always incl fundl oral promises made during
discussions/negotiations w crown and abos. For abos the oral promises are often the most
significant
Treaties date back to early 1700s
Brit did enter into number of peace and friendship treaties w (present day NB and NS
nations)
Between Royal Proc (1763) ad confed (1867), further treaties entered into incl upper
Canada and van island treaties under these treaties abo nations surrendered interests in
their lands in ont and bc in exchange for benefits preservation of reserve lands, annuity
payments etc. and other rights like hunting, fishing, etc
Following confed, series of numbered treaties 11 in total entered w diff first nations

Enabled cdn gvt to actively pursue agro, settlement, expansion and resource develop
across west of Canada and into north
Under these numbered treaties, the abo nations ceded vast tracks of lands to the fed gvt in
northern ont, man, sask, alb, parts of Yukon, nw territories and bc
In exchange for giving up large tracts of lands, the treaties provided for things like farm
equip, animals, annuity payments, ammunition and rights to hunt & fish to the abos
The crown also made promises about schools, edu help to first nations, teachers
Treaty 6 was a medicine chest
So elements in common w number treaties but all diff
Abo rights differ from abo treaty rights in terms of source & structure
Abo rights flow from historic use and occupation of territories pre contact w euros
Cf: Treaty rights arise from specific official agreements with British Crown treaties
themselves
So abo from historic use and occup
And treaty from specific, special arrange bw crown and abo ppls
Not unlike other types of ks, or agmt characterised by 1) intention to create legal
relations, 2) mutually binding oblis, and 3) measure of solemnity to process (R v Sioui)
o These treaties create enforceable rights and oblis based on mutual consent of
parties
o But mistake to think of them as ks in the way we think of ks in western legal socy
So like abo rights, and the crowns fidy obli, abo treaty rights are also sui generis type of
treaty unto themselves
o Not intl treaties
o But also not simply ks and not subj to ord rules of ks
o They are sui generis
o So we need principles of interp to deal w them

PRINCIPLES OF INTERPRETATION DEALING W ABO TREATIES

Abo nations entering into treaties had a differing understanding of what makes something
binding
For abos, sacredness and binding char of treaties isnt found in signature, lang, words of
treaty doc itself
For them true force of treaties is rooted in what was said oral promises
We have to modify the rules of evidence for aboriginals
Ex. Wampum Belt 2 nations forging their own track forward parallel w/out one being
dominant over the other so signifies agmt bw abo nation and crown. Anyone who saw this
w oral traditions would see what was agreed to.
o In the eyes of the aboriginal people, these symbolic things oral promises, wampum
belts, etc. gave proings level of solemnity (high level)
So for example to accept a wampum in formal council was officially to agree to adhere to
the principles in the woven design and then it served to perpetuate the memory of what
was transacted by treaty council
Guerin: idea of aboriginal group who rooted understanding of the agmt in what was said at
solemnization of agmt (what was said) not what was written on the paper in words
But we are now the ones interping the treaties
We come from soc where written word on paper means something

But w abos, ths isnt as signif so we need principles diff from those which employ in other
contexts (like ks, or intl treaties)

R v Sioui
- SCC determined that treaties and statutes relating to Indians should be liberally
construed and uncertainties resolved in favour of aboriginals
- The SCC picked up a principle from 19th c US jurisprudence and went on to say abo
treaties must be construed not according to tech legalistic meaning of words to
learned lawyers but in the sense theyd be naturally understood by abos
- These broad brushstroke principles were then picked up and expanded on in R v Badger
o 1. A treaty reps an exchange of solemn promises between the crown and whatever
abo nation @ issue is
o 2. The honour of the crown is always at stake
The crown has to be assumed to intend to fulfill promises no appearance of
sharp dealing
o 3. Any ambiguities or doubtful expressions must be resolved in favour of the abos
Coupled with that: any limitations that restrict rights of abos under treaties are
to be narrowly construed
o 4. The onus of proof of extinguishment lies with the crown this must be strict
So if crown claiming abo treaty right extingd then onus on crown
- Put these together w Sioui and we get list of interp princ, that incl idea we need a large, lib
approach and need to ask whether abo group affected would have believed doc they
signed was intended to create legal relations
- Verbal commitments made by Crown at time of treaty are significant
- Then the principles from Badger included
- This brings up an interpretation exercise as to what is in the treaty itself
R v Marshall (No. 1)
- M was a member of a first nation in Nova Scotia. He was charged with 3 offences under
the federal fisheries regs. 1) Selling eels w/out licence; 2) fishing w/out licence; 3) fishing
during closed season with illegal nets.
- Convicted on all 3 counts in provincial court. Upheld by NS COA and appealed to SCC of
Canada.
- M did not dispute the facts but M argues that a 1760 treaty gave right to catch fish for sale
and exempted him from otherwise applicable fisheries regs under the fisheries act.
- Treaty at issue: there was a treaty, signed in Halifax in 1760 pre dates royal procl
- At this time in history, British and French still at war, and historically the Mikmaq had
aligned with French, but starting to see that they cant depend on the French so treaty
with British was a new alliance for Mikmaq nation for them, offered a new source of
necessities, blankets, gun powder etc. Treaty was of mutual benefit to abos and euros
- For the British it offered opp to secure peace with a previous hostile enemy.
- M relied on the trade clause in this treaty the truck house clause which provided (see
slide)
- M is relying entirely on the treaty right there is no other abo right claimed: why not
asserting an abo right here too? Bc VDP says it has to have arisen pre-contact. Here we
are talking about trade with French or British, so no Q that doesnt pass test w VDP test.
- Crux of case therefore depends on treaty interpretation and in particular this one
clause

The parties disagree about 2 things: 1) the existence of certain oral terms; 2) the
implications of the trade truckhouse clause that M is relying on.

BINNIE J:
The starting point has to be the words of the treaty what does the treaty actually say
- The plain language of this treaty suggests simply a negative covenant. This term is in the
same para as the negative cov by which the Mikmaq agree not to assist the enemies of
Britain. This is further suggestion that what was intended was a negative covenant.
o So ask: does this embody a positive right to trade? Or does this include an implied
right to fish, hunt and gather items and trade them.
o So what are thoughts does it include a positive right to trade? In implicit right to
gather things to be traded?
On a technical construction of the lang and treaty on its face, any kind of reas
intepr would suggest that no it doesnt embody a right to trade and no implied
right because it is framed as a negative covenant
HOWEVER crt does not come to that concl crt says the treaty incl
right to fish and right to fish for trading purposes, provided that such
fishing and trading was for necessaries and not wealth accumulation
So how does the crt get there from this negative and restrictive lang?
Reject notion that treaty doc contains the entire agreement
Also reiterate concept that abo treaty is not subject to strict rules
of interp like other contracts (that is the starting point)
The crt gets around the problem of what appears to be the express and
arguably complete terms of the treaty by holding that extrinsic evidence can
be used to determine what the implicit terms of the treaty are.
In particular, we can pull from external sources to try to determine what the
implied terms of the negotiations are.
There may be a broader agreement, and only part of that was memorialized
in the written treaty doc keeping in mind that the British were the ones that
wrote the doc in English using legal terms; If you look at language its not plain
even for law students.
By use of this extrinsic evidence, the crt was able to find that the parties
intended to prep a more comprehensive treaty, and this didnt happen.
o COA in Nova Scotia approached problem by saying that extrinsic evidence cannot
be used in contract interpretation unless there is AMBIGUITY
Court said no ambiguity in this clause
But SCC REJECTS THIS APPROACH FOR ABO TREATIES, on 3 grounds:
(1) Ordinary rules do allow for parol evidence in certain circumstances
(2) We have to modify traditional rules of evidence for abo because
culture is traditionally oral esp in treaty cases (cultural and historic
evidence can be used)
(3) Honor of the Crown
The idea that this was going to be just a restrictive covenant instead of just
positive right to trade made sense bc they already had a trading right with
French. Now they wanted to trade with the British and not the French. But
they didnt intend that if British stop trading that doesnt mean they have no
right to trade at all.

Implied right to GATHER in the agreement because what is the point of

having a truck house if you couldnt trade anything.
Resources at the time were considered boundless.
So no one would have thought to protect, limit or curtail the right to fish hunt
gather. Implied in the treaty.
o HONOUR OF CROWN start from the proposition that: It would be unconscionable
for crown to make oral promises and then limit these promises later on. This goes
along with the fact that if there is any ambiguity in the terms, or any ambiguity in
written words and oral terms, they have to be resolved in favour of abo peoples and
not used to prejudice the abo signatories if there is some other construction that is
logically possible. This is useful interpretation with respect to truck house clause
o Crt finds that turning the Mikmaq trade demand into a negative covenant is
not consistent with the honour of the crown. That is not what was intended,
and clearly not what was understood so it should not be read in this manner
CAVEAT HERE the large and liberal interp (generous rules) should not be confused with
a vague sense of largess. You still need to determine where the common intentions are and
choose the one that reconciles the abo and British interests at the time the treaty was
made. This is not a free for all, still resolving what the common intentions would have been.
SCC concludes that NS and COA erred in law by concluding that only the only
enforceable were in written words of treaty, regardless if construed flex or narrowly.
We find the common intention of the parties outside the 4 corners of the doc this is
the only means of doing justice for expectation of the crown and Mikmaq people.

Application to the facts of case:

- SCC finds that the 1760 treaty allows them to provide for their own sustenance, taking
hunting fishing and gathering for what NECESSARIES and not wealth accumulation
o Necessaries interpreted to mean a moderate livelihood but not accumulation of
wealth
- M was exercising treaty right for necessaries and trading for money; this was found to
obtain the necessaries through hunting fishing and trading the product of those activities,
- He was engaged in small-scale commercial activity to supper him and wife, this finding is
consistent with the small sum involved.
- Therefore treaty right is in existence
Application of Sparrow Test to facts:
ANY JUSTIFIED LIMTIATIONS ON THOSE RIGHTS
- Crown argued that recognizing a constitutionally entrenched right with a trading aspect to it
would open the floodgates to widespread commercialized activities that would wipe out
natural resources.
o Concerned that treaty right to fish could be abused into right to operate a full blown
operation (in opposition to our fisheries regulations)
- So necessaries means that it doesnt mean broad open-ended right only for trading
necessaries, not accumulated wealth; but moderate livelihood
- Treaty right is limited already because of this concept of necessaries. If the scale were to
exceed this level of moderate livelihood then it would exceed the treaty right.
- Binnie J rejects crown submission that treaty rights were ab initio, subject to
regulation from from the very beginning so no justification to regulate the limitation.
Crown is relying on Badger case which treaty said rights made subj from time to time
but the treaty in M doesnt have any such limitation.

WAS THE RIGHT INFRINGED:

- Binnie held: finds prima facie infringement; Ban on sales infringes treaty right to trade
for sustenance that is contained in 1760 treaty.
- Comes down to stat interp analysis of what the regulation requires. Reg here needs
unfettered discretion on part of minster to grant or not grant a fishing licence.
- That is going to be an infringement of the ability under this treaty to obtain moderate
livelihood to sell fish.
CAN THE INFRINGMENT BE JUSTIFIED:
o Need a compelling and substantial objective
o Look at means chosen to achieve objective are they consistent with crown fid oblis. Here
minister had absolute discretion (express in statute) to determine who was getting fishing
licences. So the crt has previously held in a number of cases that unstructured,
discretionary power to infringe abo right does not meet fid obli to abo people (the
justification test in Sparrow)
o The regulation here operated on assumption that there was no abo or treaty right at all.
o As a result of unfettered discretion Ms right to trade for sustenance was only exercisable at
the discretion of the minister, and this isnt right. The treaty rights not accommodated by
this regulation.
o So prima facie infringing and the crown didnt simply arguing justification and couldnt
be justified otherwise bc overbroad.
o Looking at circumstances is there a valid obj? Yes, conservation
o But there was no minimal infringement, no idea of compensation and no consultation bc the
crown proceeded on the basis that there werent any abo rights.
So treaty right made out
Not extinguished
Infringed
Not justified
Therefore, M acquitted.
R v Marshall (No.2)
- Right after Marshall 1, 34 native bands in maritime and eastern qbc put out to sea and
began fishing lobster out of season
- Lobster = lucrative lobster fisheries
- Fishing lobster
- Abos claimed full unregd fishing right bc of Marshall 1
- Non-native feared that lobster fished out of existence, and worried about livelihood bc no
lobster no money.
- Angry at abos for this fishing= conflict and quite heated
- On Oct 3, 1999 150 non-native fishing boats in the bay, they protested the abo trappers
and did so by destroying the traps. SO the Mikmaq warriors set up to protest and protect
their right to fish lobster in the bay.
- A few days after this, the fisheries minister tries to ease tensions, and all but 2 of 34 agree
to enter into discussions (voluntary)
- However, the west Nova fishers coalition, a group repping non-abo fishing int, went to SCC
and applied for rehearing of Marshall (No.1). Wanted set aside judgment and crown to have
ability to justify limiting.

The Crown and Marshall and other interveners opposed this application SCC
Canada dismissed motion for stay and re-hearing, but in virtually unprecedented
move crt thought would issue second set of reasons to clarify decision in the first
case (is this a clarification or retreat from original decision)
Para 19 & 20 argued that the right to gather applied to a broad category of things,
including logging and minerals and all sorts of things.
So the SCC said that this is not the implication, the original maj judgment didnt rule that M
has treaty right to gather everything capable of being gathered. They emphasized that
while treaty rights are capable of evolution within the limits of subject matter, cant
wholly reinvent the subject matter
Confirmed evolution concept, but said this must be done within limits
Provides more of a def to the idea of evolution that moves forward from defn in VDP
Said the broader rights (abos gathering every resource) werent at issue in the appeal not
going to deal
However SCC held that these broader rights are open for abo to assert broader treaty
rights;
SCC talks about a significant distinction bw abo rights and treaty rights in this
context. Para 38: The court confirmed that treaty right did not confer any right to a
separate commercial fishery, but rather a right to participate in what is a regulated present
day commercial fishery. It has evolved into treaty right to participate in the largely regulated
commercial fishery of the 1990s.
The treaty right is not a right to a commercial activity at large, or in priority to other fishers.
In this respect, the abo treaty right differs from abo right which in origin is excl exercised
by abo ppl prior to contact with euros.
This idea about participation in regulated commercial fishery is new to the case, and not
discussed in signif way court confirmed the govt can still reg and crt says it is possible for
govt to enforced a closed season on the treaty right but must be done in the right way. The
Sparrow test for justification applies to treaty rights.
So the crown can legitimately limit and enforce a closed season on this treaty right bc its
the right to participate in the existing commercial fishery. Not a completely separate abo
fishery.
The crt makes comments on what might be a compelling and substantial objective. This
may include more than just conservation; can pass valid objective if conservation is missing
(recognition of participation in fisheries of non abo groups, etc)
In case of treaty rights exercised on commercial scale abos are only one group in the
activity so regard for interests of other non abos who might also have the right to
participate in the activity PROPORTIONALITY is impt factor.
Crown talks about fiduciary obli say if treaty right is going to be infringed then abo people
need to be consulted.
They stick to concept of moderate livelihood, not wealth accumulation. Notwithstanding the
apparent clarification to the law there were still issues to resolve
o No defn for what a moderate livelihood is- this is left unknown
o Means different things to diff people

R v Marshall (No.3)
- Mikmaq started commercial logging on crown land without authorization contrary to statute
- Charged and convicted for doing without auth contrary to s 29 of Crown lands Act
- Mikmaq argued: this is the logical evolution of the rights conferred by the treaty
- At the outside the crt notes the significant of this case transcends the case

This was a test case for whether Mikmaq could log on crown land done deliberately for
posing this Q for court can members of the Mikmaq people engage in commercial
logging in crown land without auth contrary to stat regulation, and more specifically, do they
have treaty rights, or abo title, that would allow them to do so.
The crt starts by reiterating the majority decision in Marshall no 1: Mikmaq can engage in
traditional trade activities to obtain moderate livelihood from land and sea. Here, it was
moderate livelihood and OK
The Q then is whether the modern trading activity in Q commercial logging
represents a logical evolution of a traditional activities at the time the treaty was
made in 1760
Mikmaq argued that they have a general right to harvest and sell resources and exploit
and sell those resources subject only to justifiable limits they wanted an exceptionally
broad scope. The Mikmaq argued that the evidence demonstrated that ancestors used
woods to make a variety of things firewood, shoes, canoes, buildings and some were
even traded at truck-houses
Remember that trading activities are not frozen in time.
So consider the arguments in favour of commercial logging being an activity that can be
confirmed by terms of treaty, vs logging isnt a protected right.
The majority of the court agreed that this was not a valid treaty right
Crt here accepts that rights not frozen in time but does require logical evolution
Crt accepts that the activity of logging can be evolution and just using modern techniques.
The problem for the logging context is that the modern logging activity is not
referable to a traditional activity. Making shoes, canoes, and baskets, dwellings that
might sometimes have been sold is not the same thing as logging.
So its not that they used to use hatchets, machettes and now using chainsaws, also boats
and motors for fishing instead of nets
Cutting down trees for sale is not the same activity for logging
If we look at contemplation of the parties, the Brits and abos would consider the resources
to be abundant and they also didnt need to trade timber, they could get it themselves and
cut it down (no need for trade in 1760).
Crt emphasizes trade and rejected the broader interp of treaty that the Mikmaq people
were claiming and entitled them to exploit all resources. To permit those words would
alter the words of the treaty and wholly transform rights conferred by it.
So if Mikmaq people were cutting timber to make things, build houses. Arguably there is a
connection that is sufficient to make it an evolution from the traditional activity. But there
was no traditional logging activity.
The concept of evolution must be rooted in the traditional activity
Confirmed Marshall (No.1)
Interesting to note that this decision is authored by McGlauchlan who was dissenting in
Marshall (No. 1)
There was no logging trading activity in 1760 so its not the modern or logical evolution of
the Mikmaq use of the resources, even if they were sometimes traded.
MAIN POINT: To claim treaty right, modern activity has to be referable to a traditional
activity if recognition of the activity you are claiming would alter the terms of the treaty, or
wholly transform the rights conferred by it, then they are not supported by treaty right.

R v Badger
At issue: the validity and applicability of the Provincial Wildlife Act

3 aboriginals were charged, B among them, with hunting moose out of season and w/o a
licence which was contrary to the PWA
Obviously the license rqmt is restrictive bc it controls who, when, what and how you can
hunt
All 3 of the defendant were Cree nation with status under treaty # 8 and all of them hunting
for food within the land surrendered by that treaty.
Treaty # 8 guaranteed them the right to pursue their usual vocations of hunting, trapping
and fishing. JURISPRUDENCE HAS STATED THAT USUAL VOCATIONS MEANS FOR
COMMERCIAL PURPOSES
o Subject to 2 limitations
Geographical (wi those boundaries)
Right of the govt to make regulations for conservation purposes
(So lang is diff than Marshall, it is internally limited right subject to
terms of treaty and gvt regu for conservation)
Subsequently the defendant were subject to the Natural Resource Treaty Agreement in
1930 which gave provinces authority over natural resources
Provincial authority does not extend beyond conservation but there are difference between
these 2 treaties, which are:
o 1) NRTA limits the right of the aboriginal peoples to hunting and fishing etc for food
whereas under #8 it was vocational which implies right to trade
NRTA expressly states that the right is for food and eliminates the commercial
right
o 2) NRTA extends the area to all unoccupied crown lands and on any other lands to
which #8 gave it
NRTA incr boundaries in which right to hunt is guard
o 3) NRTA also changes who can regulate from fed to provinces
Crown (prov gvt) argued that NRTA purpose was to extinguish all right under # 8
Court said no, NRTA only modifies it in those 3 above ways
o Absent direct conflict all things in treaty 8 still continue to apply
o But conflict here bc NRTA limits right to hunt to right to hunt for food whereas 8 says
for vocational purposes (commercial/sale/trade)
o So land is enlarged but cant hunt for commercial purposes, only food
So NRTA continues in full force and effect
So the right to hunt for food is preserved for the NRTA which conflicts with the vocational
right in #8
But the area in which is enlarged
Issue with B is that he was on private land not on unoccupied crown land and whether or
not the right extends on private land
Court here finds B was on occupied land (not unoccupied) and that the fencing and building
evidenced an incompatible use for their hunting and fishing rights (here hunting but fishing
also protected
Conviction was upheld but thats not the important part
o Important thing is NRTA and treaty 8 rship
STEP 1: Must take into account the NRTA and how it modifies the right. Then, having
determined the modified treaty right existed
STEP 2: Is this modified right infringed?

STEP 3: Is infringement by the provincial gvt (ie closed season and need to get a licence)
could be justified?
Court said the sparrow test applies
o So applied to determine whether PRIMA FACIE infringing of treaty right and if
justified
When we look at the limitations here, the licensing requirement specified they need a
gun safety course and then u were prohibited from hunting if u didnt have a licence
o Standing on its own this rqmt makes sense - protects safety of all who hunt not
just abos or other ppl
So held that abo rights and other rights have to be exercised with due regard
for safety of others
o You want the people carrying guns to know what they are doing. Therefore the
requirement for gun safety does not meet test for prima facie infringment
o So not necessarily PRIMA FACIE infringement on this aspect
o Also recall the treaty right is expressly stated to be subject to certain right and
limitations and this limitation is not unreasonable
So safety = notn necy pf infring
But wrt closed season, etc. = infringing
Interferes w that right timing, numbers etc.
The other limitation, limited the time u could hunt for food and the # of game u could
take (closed season)
o This is PRIMA FACIE infringement
o Look at the test for sparrow
o Management of resources clearly satisfied the valid objective part of sparrow
justification
o But the time and amount limitation erodes an important aspect of the food/hunting
rights contained in the treaty
o Previous decisions have clearly stated that there cannot be limitations on the
method, extent or timing of an aboriginal hunting or fishing right under a treaty
o But what about the minimal infringement? We have to say the way these
infringements are applied must be in keeping with the honour of the crown
The way in which it was set up has to uphold the honour of the crown
Has to be in keeping w unique contemporary relationship that is grounded in
history, policy, etc
Court says standard requires crown to demo that legis in q advances
important public general objectives in such a manner it ought to prevail
But not balancing here regus don't provide for license w any kind of
restriction it
o Remember legis says closed season and can only hunt in some areas lic restriction
o But can still have this for non abo hunters, and say for abos don't apply min infring
regu that would pass justification
o But these regus don't make provision for these exceptions
o No evidence lead here wrt justification because the crown argued this case solely on
the basis that NRTA extinguished the right, therefore not a lot of information on
infringement
o Court found some ability to regu but when it comes to broader regu doesn't pass
justification

o Goes back to trial on issue of justification

NB: In abo cases there are unsatisfactory results bc the Crown fails to argue certain
aspects and then the court is not able to elaborate on those issues
Key points:
Justification discussion
Interaction bw treaty 8 and NRTAs - MODIFIES TREATY RIGHTS BUT
DOESN'T EXTINGUISH. EX. TREATY 8
Now looking for more of that express intention to existing rights

Canadian Constitutional Law Lecture 10: Week 5 Friday

ABORIGINAL TITLE
- Right to excl occup of land
- Entitles abo owners to use land for variety of purps
o Can be anything but things which are inconsistent w tradl attach to land
- Enjoy protection under s 35
- Fundamental diffs bw abo rights and treaties, and title too
- Abo right: right to do activity
o U have to meet the integral, distinct soc pre contact test
o Pertains to customs, usages, trads central to specific socy don't have to be tied to
specific piece of land but might be
o Temporal limitation is contact (of euros)
- Abo treaty: not found in pre history customs, trads but in intention of parties
o Text plus intention of parties
o Not limited to VDP test of integralness is not applicable
o Sparrow test for infringement
o The thing u get to do as result of ur treaty can be wholly insignificant in terms of
cultural evolution but if contained in treaty then u have that right
- Abo title: not about right exd pre contact or written doc/intn of parties, but about title to
land itself and occupation of the land
o Time: pre sovy (prior to sov by brit the abos had a communal sense of owship and
then once sovy happens, the abo title becomes an underlying burden on title crown
takes when estab sovy)
o In Delgamuukw: in case of title would seem land occupd pre sov w/ which parties
have maintained a subl connection is of sufficient central signif to culture of
claimants (suffic so don't talk about abo tit in terms of VDP)
o Theory of abo land owship on slide
More connected and interrelated understanding of rship w land then our
western euro common law understanding prop rights and title
Helps understand where abo tit comes from & connection abos had w land
David McKay quote: dont like that govt is saying we are giving you land but
how is this possible if we already own the land. Abos know that the land is
their own, hunting grounds, etc (foolishness on concept of govt trying to
assert that they own the land)
Natives did not have concept of private property in their lexicon and was in
conflict with lexicon
- Historically, one of the primary methods used of dealing w land claims = signing of treaties
(seeding of land in exchange for things). In Maritimes, north and much of BC land claim
and title issues become particularly charged bc these claims have potential to affect
property and resource rights of many people
- So when BC entered confed, abos outnumbered euros 2-1. This was sufficient concern to
govt. So one of the first things bc gvt did was disenfranchise all abos prevent from voting
moved them to reserves
- In 1927 when it looked like allied tribes of bc were going to be able to bring case to jcpc,
the fed gvt amended Indian act to raise funds for or hire lawyer for lands claims purposes
of establishing any type of land claim
- As a result, issue of abo title was suppressed and didn't come back before bc courts until
BC until Calder in the early 1970s

No case considered abo title in context of s 35 until Delgamuukw

Delgamuukw
- Definitive statement on abo content of title in Canada
- Defines the scope of protection given to abos under 35(1)
- Defines how abo title may be proved
- Outlines the process for justification test for infringement of abo title
- Facts: 1984, 2 nations commenced proceedings against bc their claim covered 133 indiv
terrys totaling 58 000 kms of land claimed both owship and juris over land
- At trial: BC main defence to claim: that the province, and all abo rights in prov =
extinguished by colonial gvt prior to BC entering confederation (became a province)
- But at COA, BC realized this was untenable, argued land rights had not been extingd at
the SCC BC main arg becomes abo title was primarily collection of abo rights to engage in
traditional activities (reductionist argument)
- Trial judge in this case issued a sweeping and highly controversial ruling dismissed
all claims outright (abo self gvt and rights) he gave little or no weight to oral histories of
attachment to land which were lead by plaintiffs since bc entry, province had entire right
to soil/provinces
- Although he acknowledges the prov crown had fidy obli which he said was limited to
permitting the plaintiffs, subject to gen laws of prov, to use unoccupied crown lands until the
land becomes occupied and only for subsistence purposes and only until such time as to
when unoccupied land got taken up for different purposes
- This is @ odds w SCC approach to dealing w abo rights and it was a highly criticized
decision for the apparent bias in tone and analytical approach it never was going to find
in favour of abos
- BC COA went some way to talking about harness of trial but only remitted back to trial, with
suggestion that parties come to unlitigated agreement.
- SCC there is not enough evidence bc of failure of trial; title claims should be negotiated
and not litigated
- Lamer J find that the court cant deal w the merits of the G nation claims for 2 reasons:
o 1. Technical reas not rel (procedural defect)
o 2. New trial necy to assess complex evidence in accord w princ later laid out in case
Talks about need to adapt rules of evidence to accommodate proof difficulties
inherent
Change understanding rules of evidence to allow abo perspectives of
practices, customs, traditions, relationship to the land in order to be given due
weight (TJ gave no weight)
- SCC was harsh on trial judge for dealing w evidence by refusing to admit or admitting and
giving no consideration this was completely wrong
Features of aboriginal title
- Lamer doesn't agree w either parties definition of abo title says too broad - And BC gvt
definition is too narrow
- And now abo title is sui generis so like treaty rights, etc. abo title = sui doesn't fit into
CL notion of title
- Lamer says unifying kind of principle which underlies various dimension is sui generis
nature of title
- He identifies a number of dimensions (features) to abo title that make it diff
o 1. Inalienable: only transferable to Crown
o 2. Communally held

o 3. Source: Abo title arises from the occupation and possession of Canada by abo
peoples prior to us getting there and @ CL, the physical fact of occupation =
proof of psn and so we say title arises from these sources, as well as fact that abos
had pre-existing rship w land
o 4. Enjoy consti protection
The rest of our prop @ cl, by stat, doesn't enjoy consti protection
If infringement, need good justification
Content of abo title
o Lamer in delgamuukw says incl:
Exclusive occup and use of land for variety of purposes
- Lamer rejects provinces restriction of abo title to right to use land only for activities which
would pass VDP
o 1.Right to exclusive use/occupation
o 2. Canadian case law made clear abo tit not limited to such traditional uses so we
have precedent from courts saying this isnt so
o 3. Uses and benefits for which land is held broad, not confined to things like
customs, practices, traditions
o Looks @ Indian oil and gas act (oil and gas on surrendered reserve lands)
presumes that abo interest in the land incl things like mineral rights (incl in abo title)
Says abo lands held per abo title should be capable of same forms of non
tradl exploitation
o 4. However: the land use cant be wholly incompatible w nature of traditional abo
attach to land
Limitation reflect sui nature
Title has source in prior occup title is in many ways the recognition of
importance of the continuing rship over time w land
So lands held per abo title cant be put to uses that are irreconcilable w
the rship the things giving rise to abo tit in first place ie group claims
title to land occupd as hunt/fish ground, cant use land in way that
destroys value for hunting -> cant raise forest and start strip mining co.
need to maintain some integral attach to land (cant be completely
inconsistent)

o 5. Inalienability of land held subj to abo title (the rest of land in Canada is a
commodity can be bought, sold but abo land is not a commody) reinforces
idea we cant put land to use that is inconsis w inherent value for land
The fact that u cant use land in way that is wholly incompatible, doesn't
mean u cant use land for only tradl purps
Lamer confirmed right to title is by the enactment of the consti 1982 constitutionalized in
its fullest form
Degree of connection w land is pivotal in determining the scope of the consti rights
claimed
At one end of spectrum practices, trads, integral to distinctive culture which are tied to
distinct spot
In the middle: customs are intimately connected to specific piece of land that is not
sufficient to aboriginal title but site specific aboriginal right
But this trad practice doesn't necy give rise to title

When u are assessing whether/not have abo right or title partly it is ur rship to the land
that is going to matter
Proof of abo title assessment of whether/not u get abo title requires modification to existing
rules of evidence
o Framework of things need to prove to meet abo title
o Van Der Peet Test altered for Aboriginal Title:
o And the existing rules of evidence must be modified
i) Time frame: the land must have been occupied prior to sovereignty,
when the crown asserts sovereignty the title becomes a burden on the
crown title
Find this section why is it sovereignty and not contact
ii) Occupancy: exclusive occupation proves possession which is enough for
title; If present occupation is relied on as proof of occupation pre-sovereignty,
there must be a continuity between present and pre-sovereignty occupation;
VDP does not apply in relation to title. There has to be continuity between pre
sovereign occupation and present day:
o Does require some proof of present occupation but not an
unbroken chain
o What sort of connection substantial connection had to
have been maintained
o Relevant is continued relationship to the land (gaps will not be
fatal to claim to title)
o Pre-contact practices are impossible to prove, so do not have to
prove continuity if you can show that you are pushed out or
forced out etc.
o When they havent been pushed out in land such in this case,
must prove present occupation and pre-sovereignty occupation
backed up with oral histories etc. Also, occupation can
change, doesnt have to be same type of relationship
o Both CL and aboriginal systems are important for occupancy
o CL occupation grounds title for the land
o You can prove this occupation in many different ways
Construction, cultivation, resource exploitation
o When considering whether your occupation is sufficient to
ground a title claim:
Size, resource capacity etc are things to be considered
But you do not need to show significance bc the
occupation itself is said to be significant
o Need to have maintained a substantial connection
iii) At sovereignty, that occupation must have been exclusive.
o If they never had exclusive possession in the past then they
dont have exclusive possession today
o Dont just take into account the CL version of exclusivity; look at
how other native tribes treated the area etc.
The fact that they were fighting did not necessarily mean
the end of aboriginal title
Even if that land was shared by more than one group

Or if u had it but other groups came for a seasonal

aboriginal right ie came to fish one month/yr
o You needed to have the ability to have made it exclusive without
actually making it exclusive
o U had to have the ability to make other ppl go away if u wanted
to
o Not just lands shared among number of nomadic tribes an
actual piece of land occupd to excl of others but not hard/fast
rule to excl all the time
Infringement on abo title: title is not absolute: Where gvt is potentially infringing your title
o Can infringe, but to do so need compelling and subl legis objective those
directed at purposes underlying constitutionalization of abo rights (together w
reconciliation)
o Have to recognize title grounded with prior occupation; but now abos are part of
larger Canadian community (can be justified in objectives to Canadian community as
a whole)
o The infringement has to be consistent w the fidy rship between crown and abo
peoples
o Govt must demonstrate that process of resource allocation and actual allocation
reflect prior interest of abo title holders
o The nature of the crown fidy duty will depend on certain factual and legal circs in a
particular context in some cases might mean abos need priority, or further qs
about whether infringement was minimal (there is no bright line rule; CASE BY
CASE ANALYSIS)
o The nature of the fidy rship is important here bc this is determined by the nature /
extent of title
o Fid relationship requires that you respect abo decisions to which the uses they
which to put their land to
o There are broad ranges of legislative objectives that may justify infringement. Most
will have to deal with reconciling abo rights in the broader present day society (ex.
development of mining, forestry, protection of enviro, infrastructure building). These
can ground infringement of abo title. These are consistent with reconciling abo title
with present day purposes that can give rise to justified infringement
- Duty of consultation: Regardless, even if u have min acceptable standard of consultation
then this needs to be undertaken in good faith and w intention of addressing concerns
raised by abo title holders
- Still land, and has econ aspect to it so therefore fair compensation due for crown to fulfil
duty under fidy oblis and because use of land carries economic benefits, if Crown is going
to use land, then some form of compensation must be paid and amount depends on
circumstances of case
- Case represents absolute affirmation of existence and consti protected status of abo
title in Canada but the decision is more directive than conclusive bc actual
outcome was for SCC to say this has to go back to trial bc of the failure of evidence on part
of trial judge
o Establishes unprecedented theoretical framework on aboriginal title
o Strong suggestion from court that these are matters which are not partic suitable for
litigation (land claims bc stretch the boundaries of what our understanding of law is)
o Even though modify evidence rules, still under that framework

o So should rather have abo nations coming together to negotiate

PROVINCIAL LEGISLATIVE AUTHORITY

- Prior to 1982 and the consti entrenchment of abo rights, parliament and provs could pass
any laws they wanted which interfered w exercise of aboriginal rights so long as each govt
acted within sphere of auth under 91 and 92
- However parl excl jurisdiction over Indians and lands reserved for inds pursuant to 91(24),
but provl laws could apply and still do apply to affect abo ppls subject to some restrictions
- Dom purpose for provl and incidentally affects abos only? Ok
- So laws cant single out abos, and cant create special law which says abos will be treated
diff than non abos (must be of general application)
- And can impair status or capacity of abos indianness
- This ties back to the disciussion in delga where lamer says 91(24) protects core of
indianness form prov;l intrusion thru use of interjuris immunity doctrine
- This core of indianness within fed juris encompasses all abo rights
- Any prov law which purport to extinguish abo rights have always been incompetent to the
provinces - so never had power of extinguish, but had power of regu
- So the core of indianness in 91(24) encompasses all abo rights encompassed by s 35: abo
rights, treaty rights and title
- So interfering w abo rights is beyond legislative competence of provl legislatures
this is op of interjuris immunity doctrine even incidental affects in fed cant happen where
interjuris immunity applies
o Abo rights @ core of fed juris and intrjuris immunity will apply
- However provl laws of general app which don't touch on abo rights still fine so long as
effects on abos is incidental (general speed limits apply on and off reserve lands)
- Post 1982 (fed or prov) can extinguish abo rights. But prior to 82, feds could extinguish abo
rights
But also need to look at s 88
o We know provl laws of gen app can apply of their own force to abos so long as don't
go to core of indianness
o However provl laws which do go to core incidentally (if not simply incidental then not
within juris), might nevertheless apply by virtue of op of s 88 of ind act
o Laws have to be of gen app s 88 wont prop up w ultra vires legis the way s 88
operates is to allow the valid laws to operate where touches on core, by being
incorpd by reference into the fed legis by the op of s 88 (then use Sparrow test to
see if this is justified)
o Obviously impinge on abo rights and otherwise wouldn't apply, but s 88 will save bc
incorps by reference into the fed jurisdiction
o S 88 does not help with treaty (subject to the terms of any treaty)
o S88 has limited scope of where it applies (not all aboriginals)
R v Morris
- At issue was 1852 treaty bw S nation and Vancouver island said S nation could hunt over
unoccupd land and to carry on fisheries as formerly
- 2 members of S charged under BC wildlife Act for hunting for food @ night w illuminating
devices
- S defended charges on basis of abo right per treaty of 1853; they were claiming treaty right

Crown said agree right to hunt but not necy right to hunt @ night and should be ban bc
dangerous (should apply to them equally)
Provl law here, general application = dangerous and applied to everyone hunting = valid
prov law with incidental effect on abos
The abo right captured in treaty was to hunt and fish as formally had
This was w illuminating devices @ night so provl law impinges on method of exing right
So TJ recognizes right to hunt and treaty right but doesn't extend to hunting @ night bc
unsafe
SCC said no treaty right to hunt in unsafe manner so s 29 of legis at issue which prohibd
hunting or trapping w no reas consid for lives of others was valid and applicable bc it
doesn't impair their rights.
So the court here confirms exist of treaty right which incl right to hunt @ night w illumination
Under 91(24) feds have exclusive jurisdiction; confirms that prov laws of general
application are ok with incidental effects.
So is there Infring? Justified?
o No q wildlife act provisions = valid
o Where valid provl law impairs an integral part of the primary juris the core of the
fed juris interjuris immunity is going to apply (principles in COPA apply here)
o Treaty right affects core; therefore immunity applies
o They looked @ s 88 potentially can protect provl law and allow it nevertheless to
apply but is s 88 going to assist here?
S 88 excludes treaty rights means provl laws which touch on a core of
abo rights or that in any way impair abo rights which are ty rights cant be
saved
o So provl laws which impact abo rights can be saved by s 88 if they are not infringing
o But provl laws which infringe or impair ty rights cant be saved bc of opening words
of s 88
Key: some degree of modest interference so long as doesn't constitute PRIMA FACIE
infringing may be ok @ provl level re: ty rights but s88 wont help
So use the rest of Sparrow to see if it is actually infringing
No evidence that hunting at night with illumination is prima facie dangerous
Therefore, no amount of justification @ provl level can save provl law which prima
facie infringes treaty right bc cant justify way out of interjuris immunity; unless law is
saved by s88

Exam Review:
Principles
o P&S dominant purpose (Morgantaler, Same Sex)
o Presumption of constitutionality: If competing between characterization then choose the
one that renders it constitutional and not unconsti
o Paramouncy: same subject matter conflict of valid law: purpose, imposs of dual
compliance (Mangat)
o DAD: alternative if paramouncy doesnt apply: no conflict to give rise to paramouncy
then DAD can be argued. As long as effects are cumulative and not conflicting (Multiple
Access, Schneider)
o Incidental effects: allow legis to have incidental effects into other level of govt
jurisdiction as long as P&S is within jurisdiction

o Ancillary Doctrine: broadly applicable; we talked about it in T&C general branch: where
a provision is being challenged for validity ad part of overarching broader scheme and
that provision intrudes into provincial, if sufficiently integrated into fed as a whole, then it
might be saved. Test from GM 3 part for integration. Assessment depends on how far
your provision intrudes into prov jurisdiction. In GM 31(1) created civil action which was
not significant intrusion thus level of integration is functionally related test.
o IJI: there is a protected core of fed jurisdiction, which is protected from any interference,
even incidental from prov jurisdiction. Will apply even if no conflict. Central minimum
assailable content that is necessary to give the jurisdiction any degree of weight and
purpose (COPA, aviation). 2 step analysis (1. Whether prov law trenches to the core;
assess core; which is usually based on precedent; look at sub matter and ask does this
seem to be core; 2. Reqt that provincial law actually impairs the core; merely affecting is
insignificant)
o Honor of Crown/abo rights/title/treaty
Tests:
o General trade and commerce problem: GM test of ancillary doctrine (sufficiently
integrated); Parsons mutual modification
o Criminal law power: 91(27) 3 step test Margarine Reference in some cases modification to
form reqt (RJR McDonald)
o POGG: residuary power: national concern (Crown Zellerbach), emergency (Anti Inflation
Reference), gap branch; provincial inability
o Aboriginal Rights (VDP to determine whether there is a right) Marshall cases to determine
treaty right, Guerin and Delga to determine abo title)
o Sparrow test to determine if infringement and if it is justified