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MCKAY V. THE QUEEN (1965) SCC..........................................................................................................................................................7


RUSSELL V. THE QUEEN (1882) P.C. (P.O.G.G. POWER)..........................................................................................................................11
MAJORITY (RITCHIE): PROVISION IS PREVENTATIVE AND REGULATORY RATHER THAN PENAL AND THEREFORE ACCEPTABLE UNDER PROVINCIAL HEAD OF
POWER – PROVINCIAL IN REGULATING LOCAL TRADE CAN SET ITS OWN STANDARDS; PROVINCE CAN ENTRENCH ON AREAS OF MORALITY AS LONG AS PITH
AND SUBSTANCE IS REGULATORY. (STRONGER JUDGMENT—FROM THE POINT OF VIEW OF THE DIV. OF POWER) .........................................................21
DISSENT (LASKIN): PROVINCE IS INTRUDING ON FEDERAL CRIMINAL JURISDICTION BY MASKING A CRIMINAL PROVISION IN A REGULATORY SCHEME;
MORALITY IS A FEDERAL JURISDICTION.
...............................................................................................................................................................................................................21
CANADIAN CHARTER OF RIGHTS AND FREEDOMS................................................................................................................21
HOW TO ANSWER A CHARTER QUESTION....................................................................................................................................................21
1. Does the Legislation Contain an Express Override Clause? ....................................................................................................21
2. Does the Charter Apply to the proposed legislation (Look to Application of Charter)?...........................................................22
3. On what Charter Right might the Proposed Legislation Infringe? ...........................................................................................22
4. Was the Right in STEP 2 Infringed?...........................................................................................................................................22
5. Was the Violation a Reasonable Limit under a s. 1 Analysis/Oakes Test?.................................................................................22
HISTORICAL AND SOCIOPOLITICAL OVERVIEW...............................................................................................................................................22
How the Charter Came About..........................................................................................................................................................22
Is the Charter Pro or Con?..............................................................................................................................................................23
Con................................................................................................................................................................................................................23
Pro.................................................................................................................................................................................................................23
ALTERATION OF CANADIAN FEDERAL SYSTEM..............................................................................................................................................23
INTERPRETATION OF RIGHTS.......................................................................................................................................................................23
When does the Charter Apply?......................................................................................................................................................................24
Hunter v. Southam (1984)(SCC)..............................................................................................................................................................24
R. v. Nova Scotia Pharmaceutical Society (1992)(SCC)...........................................................................................................................24
Formal limitations of Rights – OAKES TEST...............................................................................................................................................24
Developments since Oakes:......................................................................................................................................................................25
Can you use a fiscal crisis as a s. 1 justification?......................................................................................................................................25
Section 33 – Override (Notwithstanding Clause)...........................................................................................................................................25
APPLICATION OF THE CHARTER...................................................................................................................................................................26
Does the Charter Apply to Common Law?......................................................................................................................................26
Governmental Action.......................................................................................................................................................................27
FREEDOM OF RELIGION..............................................................................................................................................................................29
EQUALITY................................................................................................................................................................................................31
Introduction......................................................................................................................................................................................31
U.S. CONSTITUTION.................................................................................................................................................................................31
14th Amendment...............................................................................................................................................................................31
5 Things to Think About In Relation to Differentiation when Faced with a Rule:..........................................................................33
Equality s. 15(1)...............................................................................................................................................................................33
Trilogy...........................................................................................................................................................................................................35
The Law Test....................................................................................................................................................................................35
Critiques of the Law Test.................................................................................................................................................................36
Positive State Obligations, Comparators and Benefits....................................................................................................................37
Positive Obligations.......................................................................................................................................................................................37
Comparators....................................................................................................................................................................................37
Benefits.............................................................................................................................................................................................38
Some Practical Measures of Equality that Come Up......................................................................................................................................38
FREEDOM OF EXPRESSION (S.2(B))..............................................................................................................................................................38
Rationale for Freedom of Expression..............................................................................................................................................38
Scope of Freedom of Expression......................................................................................................................................................39
Section 2(b) Test..............................................................................................................................................................................40
Commercial Speech and Freedom of Expression............................................................................................................................40
HATE SPEECH..........................................................................................................................................................................................41
Rationale..........................................................................................................................................................................................41
ABORIGINAL RIGHTS.........................................................................................................................................................................43

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1. INTRODUCTION.....................................................................................................................................................................................43
2. GUERIN – THE BEGINNING OF MODERN ABORIGINAL RIGHTS IN CANADA.......................................................................................................43
3. THE CONSTITUTIONALIZATION OF ABORIGINAL RIGHTS..............................................................................................................................45
Sources of Aboriginal land/other rights:.........................................................................................................................................45
R. v. Sparrow....................................................................................................................................................................................46
R. v. Van der Peet (1996).................................................................................................................................................................47
R. v. Powley (2003)..........................................................................................................................................................................47
4. TREATY RIGHTS...................................................................................................................................................................................48
R. v. Marshall #1 (1999)..................................................................................................................................................................48
R. v. Marshall #3 (2005)..................................................................................................................................................................48
5. DUTY TO CONSULT – HONOUR OF THE CROWN........................................................................................................................................48
Haida Nation v. B.C. (2004) ..........................................................................................................................................................48
Taku River Tlingit First Nation v. B.C. (2004)................................................................................................................................48

General Constitutional Principles – Introduction

 Constitutional scholars disagree on the ability of the Parliament to amend the constitution.
Monahan - S. 44, Constitution Act, 1982 - Subject to sections 41 and 42, Parliament may exclusively make laws amending the
Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

 Living Tree Principle: Constitution should evolve and adapt to changing circumstances in society; this comes from the
person’s case in 1920s.

 Constitution as a Contract - People can enforce the constitution if it is breached through the court system - Was there an offer and
acceptance? Did we agree to the terms? If you were of voting age in 1982, and you voted in Trudeau who passed it.

 Similar in Principle to the UK – does it express the values of Canadians?

Sources of Canadian Constitutional Law

 Written and unwritten principles – written provides a higher degree of certainty, while unwritten principles cause
problem. However, unwritten constitution allows for more flexibility and adaptability to modern Canadian society.
 The Canadian Constitution has a bit of written and unwritten– common law, written aspects, unwritten aspects,
royal prerogative, constitutional conventions.
 British Aspects – parliamentary system and rule of law also: American style of constitutionalization of rights.
 Unwritten Principles
- Reference re Secession of Quebec (SCC, 1998),
- Rule of Law (exercise of all public power must find its ultimate source in legal rule),
- Federalism (divides legislative power between federal and provincial governments - s. 91, 92),
- Protection of Minorities,
- Democracy.
Main Sources of Canadian Constitutional Law
1. 1867 (BNA) Constitution act:
 Created the Dominion of Canada out of 3 colonies. Defined Canada as federal state and created 4
provinces: Ontario, Quebec, Nova Scotia, and New Brunswick.
 Established Fed/Prov rules and allocation of powers (S 91 and 92).
 Preamble outlines that it is not an all-encompassing document, Canada will have a constitution similar in
principle to that of the UK.
 Statute of Westminster 1931, Canada becomes effectively independent
 A lot of things missing from 1867 act of that of most constitutions: no indication of how to amend, no

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Supreme Court mentioned in this document, the powers of the governor general are not laid out in the 1867 Act either.
2. 1982 Constitution Act:
 Brought in amending formula to the constitution (abolition of the Westminster Parliament authority over
legislation in Cananada Referred as a “patriation” of Canadian Constitution) - UK authority over Canada formally terminated
 Canada Act is a UK statute. Constitution Act is a schedule to that act. Also brought in Charter, Guarantees
for aboriginal rights.
 Defined terms of constitution in s. 52(2)
3. Imperial Statutes (from England):
 17 Imperial Statutes enacted by UK parliament which apply to Canada.
 Constitution Act, 1867 and Constitution Act, 1982 are both imperial statutes enacted by UK for Canada and
are within the definition of s. 52(2) of the Constitution Act, 1982.
4. Canadian Statutes - Terms of constitution in s 52(2):
 S 52(2) sets out acts that are part of the Canadian Constitution; 8 Canadian statues relating to Constitution
Act, 1871, including creation of provinces (Manitoba Act and Quebec Act) are also part of the Constitution. Supreme Court
Act, Canadian Bill of Rights is also a statute, Human Rights Act are not included in Sec 52(2) but are still considered
constitutional according to Hogg.
 The big problem has been “includes” in s. 52(2)(b), which has been interpreted by the courts to mean that our
constitution is not exhaustive.
5. Parliamentary Privilege:
 Powers that are necessary for functioning of legislative bodies.
e.g. Procedures to run parliament, freedom of speech in debate/legislative houses, continue to evolve
e.g. 1992 New Brunswick Broadcasting, 1993 SCC case against NS SC said parliamentary privilege is included in the defined
constitution under s. 52 – speaker can ban stranger from House b/c of unwritten principle of parliamentary priv.
6. Caselaw:
 Lots of cases that flush out what constitutional law is in the country, courts interpret the constitution and
statutes.
 Defines parliamentary privilege, sets limits on prerogative, creates precedents, determine the parameters of
s. 91 and s. 92.
7. Prerogative:
 Power and privilege given by Common law to the Crown. Largely taken from the UK - Confined to executive power
 Courts largely determine this, set scope and parameter of what the prerogative is.
 Becomes more and more minor as citizens increasingly expect Crown to be like regular citizens
 Some of the important prerogative powers include: treaty making power, power to declare war,
appointment of PM and Ministers.
8. Conventions:
 A fairly large source of constitutional law, but are nebulous and tricky to find
 Non-legal rules – not enforceable by the courts - which governments and the executive have agreed to abide by.
 e.g. The Patriation Reference Case – provincial consent is not legally requires, but a convention exists that a
substantial degree of provincial consent should be garnered before amending.
9. (Unwritten Principles?):
 Possible convention, or different source entirely. Form the bedrock of the country we are.

Amending the Constitution


(a) resolutions of the Senate and House of Commons; and
(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then
latest general census, at least fifty per cent of the population of all the provinces.

Reference Re Secession of Quebec, 1998 SCC


To answer the questions, look to the four fundamental and organizing principles of the Constitution:
1. federalism
2. democracy
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3. constitutionalism and the rule of law


4. protection of minority rights
These unwritten principles inform and sustain the Constitutional text- they are the vital assumptions upon which the text is based.

Persons Case, 1928 SCC


Living tree of the constitution

I: what is the meaning of the word “persons” in s. 24 of BNA Act, 1867? Are women qualified persons for the purpose of the Senate?
o In s. 23, there is a lot of the use of the word “he.”
o In s. 24, it says the governor general shall qualify “persons” to the Senate.
 based on the language alone, it is not self-evident who should be a member of the Senate – you could make an argument
according to s. 23 that it should only be men, but s. 24 seems to be saying otherwise.

“Living Tree” – the Privy Council talks about the living tree of the constitution – a large and liberal interpretation - it is not a
formulistic, original approach that is used, but rather, the constitution must be able to flourish.
 Constitutions use open ended words because they are meant to be enduring and open to some interpretation – it provides guidance
and a general philosophy, but does not get into the details – this allows the constitution to be a living tree.

Application of the Living Tree Principle - the word “person” is ambiguous and thus, may include persons of either sex. This implies
the meaning of the word “person” could vary depending on the context.

Two Opposite Conclusions which can be drawn from the Persons Case
 Ambiguity – this also shows that, although the constitution should be open-ended enough to allow for growth and interpretation, it
is also important to have clear wording. If the framers really wanted only men, they should have said so explicitly.
 Malleability – the legal meaning of certain words allows for growth and change – it could be argued that a certain degree of
ambiguity in constitutional documents is necessary to allow the court to use the living tree approach – through the ambiguity; the
court was able to come up with a more progressive judgment and allow women to sit on the Senate.

Note: Edward's Case


• similar to Person's - interpreted constitution broadly so that person includes women - constitution
should be broadly interpreted to conform with changing values.

 When interpreting a constitutional provision, from the perspective of the original framers’ intent or from a dynamic “living tree”
approach (remember to argue both sides in constitutional questions). Can interpret just one specific word (e.g. “persons”) or the
entire context of the provision (i.e. “persons” in the context of voting rights or women’s suffrage).

FEDERALISM

Sections 91 and 92 of the Constitution Act, 1867


 s. 91- sets out 30 classes of subjects which fall exclusively within federal legislative competence (includes
POGG)
 s. 92-sets out 15 classes of subjects which fall exclusively within the provincial legislative competence
 classes in 91 and 92 not exhaustive
 ss. 91 and 92 categories of laws often overlap, encroaching in many more respects than usually realized
 W.R. Lederman, "Classification of Laws and the British North America Act" – argues that when a
particular rule has features of meaning relevant to both federal and provincial classes of laws, then the question must be asked, is
it better for the people that this thing be done on a national level, or on a provincial level?
 In deciding the validity of a law, court engages a process of classification to determine whether the law
comes within federal or provincial class of powers.

Division of Powers – Constitutional Interpretation

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1. pith and substance


2. incidental aspect
3. double aspect
4. interjurisdictional immunity
5. paramountcy

A. Pith & Substance


In order to determine whether an enactment represents a valid exercise of provincial or federal power, it is necessary to ascertain the
DOMINANT CHARACTER (Pith & Substance) of the law in light of the applicable constitutional categories).

3 Step Process to Determine whether Statute is valid exercise of Legislative Powers (from Lamer J. in Starr v. Holden)
1) They identify its “matter”, “pith and substance”
• determined by reference to both the purpose and effects of a statute;
• the courts will look at the terms of the statute and the broader context in which it was enacted (including legislative history)
to determine its true purpose or character
• characterization is a value-laden as opposed to purely logical process
2) Define scope of Competing Heads of power w/in which the matter of the statute might fall
• this involves a consideration of the judicial precedents that have given meaning to the words used in ss. 91 and 92
• Since scope of most powers has long been clearly established in the case law, this step often involves little more than a
review of the relevant decisions and a recitation of the principles emerging from them.
• Look to: CA 1867, case law, and legislation.
3) Which head does of power does the challenged statute fall under? - After (1) and (2), a judge then can allocate the “matter”
to its proper head of power, thus determining whether the statute is intra vires or ultra vires the enacting legislature
• because (2) has usually been settled by past precedents, and (3) is a mechanical step, the constitutionality of a law in practice
almost always turns on (1) – characterization of its “matter” or “P &S”

 More Simply:
(1) What is it talking about?
(2) Under which jurisdiction and powers does this issue fall? (CA 1867, cases, legislation)
(3) Which head of power does the challenged stature fall under?

R. v. Morgentaler, 1993 SCC


F: Morgentaler conducted abortions contrary to Medical Services Act. He contends this law is ultra vires the province of NS because
of its criminal nature. NS argues that the Act falls within its power to deal with matters of health and administration of hospitals.

Note: In the wording of the Act, abortion was buried in among other services like liposuction and colonoscopies to give an appearance
of a health or hospital related provision. The real intent of the legislation was to ban abortions.

D: The pith and substance of this legislation was determined by the SCC to be criminal and outside the jurisdiction of the province.

Ratio: When determining the pith and substance of legislation the court should consider the subject matter, the purpose and effect of
the legislation, the social and economic reasons for enacting the law when the passed the law. If the legislature passed the law
because they intended to deal with a matter outside their jurisdiction than the law will not be valid.

B. Necessarily Incidental
 Permits governments to intrude substantially on other level of government so long as most important
features of their laws remain within jurisdiction
 When the impugned provision is examined in isolation, it appears to intrude into the jurisdiction of the
other level of government. However, if the larger scheme of which the impugned provision is part is constitutionally valid, the
impugned provision may also be found valid because of its relationship to the larger scheme. This will depend on how well the
offending provisions are integrated into the valid legislative scheme. If they are not closely related they will be severed and
declared invalid.

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 As long as the dominant purpose is valid (pith and substance), then anything else that is necessarily
incidental to that purpose will not make the legislation invalid. (e.g. if Toronto created new provisions dealing with traffic flow,
which also happened to crack-down on homeless and pot smokers, it could be argued that “removing” of the homeless was only
incidental).

General Motors of Canada Ltd. v. City National Leasing (1989) SCC


F: The Fed gov’t gives companies the right to sue other companies which they feel are competing unfairly. GM argued that s. 33.1 of
the Combined Investigation Act, of the Federal competition laws, was beyond jurisdiction of Parliament, since the creation of civil
causes of action falls within provincial jurisdiction in relation to “property and civil rights” (s. 92(13)).

I: Should provision be severed and struck down because it invades provincial jurisdiction over property and civil rights?

D: the encroachment on the provincial head of power governing causes of action (the right to sue) is justified because it is a necessary
in order to allow s. 33.1 of the Federal Combined Investigation Act to be effective (need to be able to sue in order to make Act
effective).
 S. 33.1 is a remedial provision only and helps enforce substantive parts of the Act
 It is limited in scope and applies only to anti-competition laws and not causes of action in general (which
would fall under s. 92(13)).

Steps to follow when the challenge focuses on a single provision


1) Is the Act as a whole valid? (if NO, statute will be struck down)
2) If so, is the offending provision, viewed in isolation, valid?
3) If not, to what degree does it intrude on the other level of government’s jurisdiction?
4) Is the offending provision sufficiently integrated with the valid scheme?

C. Double Aspect Doctrine


 Acknowledges that some kinds of laws have both a federal and a provincial matter and are therefore
competent to both the Federal and Provincial jurisdictions.
 e.g. Federal driving legislation – impaired driving deals with criminal matters. Provinces have also adopted
traffic safety regulations with respect to conduct on the road - Shows s. 91 and 92 are NOT watertight compartments –
there are overlaps
 Usually deals with two statutes, while necessarily incidental usually deals with one statute.
 The double aspect doctrine is applied “if the contrast between the relative importance of the two features is
not so sharp” (Lederman, “Classification of Laws and the BNA Act”). Hogg elaborates that when the court finds that federal and
provincial characteristics of a law are roughly equal in importance, then the conclusion is that laws of that kind may be enacted by
either the parliament or a provincial legislature.
 But if the two rules call for inconsistent behavior from the same people, they are in conflict or collision and
both cannot be obeyed. In these circumstances the courts have said that the federal rule is to prevail and the provincial one is
inoperative and need not be observed (doctrine of Paramountcy – e.g. Law Society of BC v. Mangat).
 Ask: Can you comply with both laws? If not, federal law prevails.

Multiple Access Ltd. v. McCutcheon (1982) SCC


F: Two laws, one provincial law (Ontario Securities Act, RSO 1970, c. 416) and one federal law (Canada Corporations Act, C-32)
prohibited insider trading shares with almost identical provisions. Alleged insiders seeking to avoid proceedings against them under
the Ontario statutes

Differences between the two acts (different Pith & Substance between the two):
 Federal law was prohibiting insider trading under federal corporate structures through the criminal law
power enumerated in s. 91(27) and the power to incorporate companies in s. 91 (opening words).
 Provincial law dealt with insider trading provisions were valid in P&S in relation to the securities trade,
which comes within “property and civil rights” s. 92(13).

D: Double aspect applied because there were two equally important perspectives on subject matter with no apparent conflict; therefore
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both could be upheld – they can coexist under the double aspect doctrine.

 Even though they can co-exist, when it comes to deciding which one of the two will govern when there is a conflict, we
resort to paramountcy and the federal law prevails. Paramountcy applies as where one enactment says ‘yes,’ and the other
says ‘no.’ You may have to establish that they are both valid using the pith and substance doctrine.

Law Society of BC v. Mangat


F: Law Society of BC said that in order to appear before immigration hearings, you must be a lawyer. The Federal Immigration Act
says non-lawyers can represent persons before the immigration tribunal. It is within the jurisdiction of the Law Society under s. 92(13)
– civil and provincial rights in the province – to regulate the legal profession and it is perfectly legitimate for the federal government
to decide who can appear at immigration hearings under s. 91(25) – naturalization and aliens.

D: Dual compliance with both statutes is impossible without frustrating Parliament’s purpose. Paramountcy is enacted and federal
statute prevails.

D. Interjurisdictional Immunity

 Where a provincial law deals with a legitimate provincial subject matter but incidentally affects the CORE
of a federal subject matter, the provincial law will be READ DOWN so as to confine the law to matters that do not affect the core
of the federal legislation; it remains in force under the enacting body’s jurisdiction – does the provincial legislation DIRECTLY
affect the federal provisions?
 Operates only upon provincial statutes & only when 3 major federal areas:
o Federal works and undertakings (everything listed in 92(10)(a),(b),(c))
 typically has to do with communication, broadcasting, major transportation networks like national railways – those
things which are very national in scope.
o Federally incorporated companies
o Banking 91(15)
o Elections (common law protected are in McKay)
 Federal entities are entitled to be exempt from certain provincial legislative provisions- in these situations,
there may be provincial legislation that does not apply.
 Doctrine of Interjurisdictional Immunity constitutes a departure from tendency to create overlapping
jurisdiction, and is a doctrine that emphasizes exclusivity of jurisdiction. Comes into play in situations where a provincial law is
clearly valid in most of its applications, but in some of its applications it arguably overreaches, affecting a matter within fed
jurisdiction
 In those circumstances where the doctrine of interjurisdictional immunity applies, provincial laws are not
allowed to have even an incidental effect on matters falling within federal jurisdiction, and there is no double aspect to the matter
regulated

McKay v. The Queen (1965) SCC


F: McKays place a federal election sign on their lawn contrary to the municipal by-law (under provincial jurisdiction) regulating
materials on the lawn – prohibits signs on the lawn.

D: Court says provincial law affects the VITAL CORE of the federal elections act. Although it was a valid provincial law, held not to
apply to the federal head of power under elections: Provincial law read down to the extent it encroaches upon the basic core of a
federal subject matter, which in this case is the Federal Elections Act.

Dissent: The dissent says it’s a matter of parliamentary intent – if the parliament intended to prevent these sorts of bylaws, they would
have explicitly done so. Since they did not, the municipal by-law should stand.

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

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F: Province passes law dealing with health and safety of pregnant workers. Federal law, Canada Labour Act, did not offer such
protections.

I: Are provincial health statutes applicable to federally regulated undertakings (such as Bell Canada)?

D: Federal regulated undertakings are immune from provincial health laws and, thus, when a conflict arises, the provincial law must
be written down.

Ratio (Beetz):
• “Works, such as railways, things such as lands reserved for Indians and persons, such Indians” are at their core federal.
Therefore, federal regulation in this area is immune from provincial laws of general application.
• this law did affect vital core of operation of Bell- ability to set wage conditions, conditions of employment, not to have to
reassign etc
• “Rates of pay/hours of work, affect a VITAL part of the management and operation of the [federal] undertaking to
which it relates. This being so, if such regulation relates to an undertaking which is within s.92(10)(a), (b), or (c) in
my opinion it can only be enacted by the federal parliament.”

Problem: Beetz said that the unassailable core is the management of Bell which includes anything to do with workers. Haigh says
there is an other side to this - management in the broad sense is the vital core, but not the micromanagement of workers to the
effect of Beetz’s judgment. That is the problem with interjurisdictional immunity – it is very hard to pin down.

After Bell Canada #2, II became a recognized constraint on provincial power. The next two cases started to move back into the
direction of allowing the provinces to legislate in their own field.

R v. Canadian Pacific, 1995


F: Important part is that provincial environmental laws prohibited certain types of activities. Canadian Pacific, being a railroad
company, performed the prohibited environmental activities anyways (burning weeds).

Argument: Canadian Pacific, said being a federal undertaking, should not be liable for provincial general laws.

D: SCC wasn't convinced. They said that Canadian Pacific is subject to environmental laws. Environmental laws are not subject to
interjurisdictional immunity. There is no strong explanation as to why environmental laws are different from labour laws. Haigh thinks
it is very difficult to reconcile these two cases (Bell #2 and Canadian Pacific).

Irwin Toy v. Quebec, 1989

F: Quebec enacted legislation prohibiting directing advertisements to persons under thirteen years of age. An advertiser argued that
the law was ultra vires as affected the vital core of the management of broadcast undertakings (a federal undertaking). This case is an
example of Quebec trying to be progressive.

D: The vital core test properly determines the scope of the interjurisdictional immunity doctrine when a provincial law applies
directly to a federal undertaking. However, the narrower sterilization or impairment test is applied when the provincial law applies
indirectly to the undertaking - It applies indirectly because the law affects advertisers and advertisers’ effects broadcast undertakings.

R: When a provincial law applies indirectly to a federal undertaking have to use the sterilization or impairment test not the vital
core test: If the indirect effects of the provincial legislation sterilize or substantially impair the operation of the federal undertaking,
then the provincial law is read down.
• This makes sense, because the effects are indirect and thus, the provincial law should only be read
down if the interference it causes is extreme.
• Hogg disagrees - There is absolutely no reason to distinguish between direct and indirect. You
cannot disentangle broadcasters and advertisers; broadcasters depend on advertising in a way that is fundamental to their business.

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• Haigh thinks that they wanted to make sure that the Interjurisdictional immunity doctrine did not
get out of control and so they tried to give more power back to the provinces.

E. Paramountcy
 One legislative sphere has to overbear another sphere where there is conflict. There must be some
mechanism to deal with conflict. You cannot have watertight compartments in sections 91,92 anymore.
 In Canada, where there is a conflict between feds and provinces, federal legislation will govern
 Not all countries do this however, example: US gives paramountcy to the states
 For paramountcy to even come into play you have to demonstrate that there are TWO sets of valid law - If
either is not valid, paramountcy doesn't come into play.
 If a conflict is found to exist between the provincial and the federal law then by the application of the
paramontcy rule, the provincial law is not declared invalid but its operation is merely suspended to the extent that it conflicts with
federal legislation.
 Narrow reading of conflict: would allow both the federal and provincial laws to operate unless it is
impossible for those subject to the two legislative schemes to comply with both - this approach is referred to as the express
conflict or impossibility of dual compliance test.
 Broader reading of a conflict: would hold a valid provincial law inoperative whenever it has an impact on
a matter already regulated by a valid federal law.
 The case law explains the application of the narrow and broad paramountcy doctrines.

Ross v. Registrar of Motor Vehicles, 1975 SCC


F: Convicted of impaired driving under crim code. Allowed him to drive to and from work, but prohibited him from driving on the
weekend. However, the Ontario Provincial Highway Traffic Act then suspended license completely.

I: Is there a conflict between the provincial and federal legislation?

D (majority): The legislation is not in direct conflict because he could technically comply with both (feds say he CAN drive, not that
he must drive. So, by not driving he complies with the provincial legislation and is not in violation of the federal legislation). The
majority compares the effect (result) of the legislation, but the dissent focuses on the substance of the legislation itself.

Dissent: argues there is in fact a direct conflict between the provincial and federal legislation and he cannot comply with both. The
intentionally flexible federal sentencing provisions conflict with the strict Ontario Highway Traffic Rules.

Multiple Access Ltd. v. McCutcheon, 1982 SCC


Dickson’s Narrow Direct Conflict Test
F: Two laws, one provincial law (Ontario Securities Act, RSO 1970, c. 416) and one federal law (Canada Corporations Act, C-32)
prohibited insider trading shares with almost identical provisions. Alleged insiders seeking to avoid proceedings against them under
the Ontario statutes

D: Follows Ross. As implied in Ross, in order to apply paramountcy it would have to mean that compliance with one law would mean
breech of the other.

Ratio (Dickson): Unless there is an express contradiction in the federal and provincial rules and it is impossible to obey both at the
same time paramountcy will not apply. Duplication is ok; indirect conflicts are natural part of the ultimate harmony that is federalism.
Actual conflict in operation as where one enactment says ‘yes’ and another says ‘no.’

Bank of Montreal v. Hall, 1990 SCC


LaForest modifies Dickson’s Test – Broad Conflict Test
F: Bank seized assets under federal power ((91(15) is the federal banking power). Saskatchewan had law protecting against seizure of
property. Bank argued that they did not need to comply with the Saskatchewan law as they believed they could rely on the federal
power.
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I: Was there a contradiction between the federal and provincial legislation such that paramountcy should apply?

D: There is a conflict. According to the court “impossible” did not mean impossible to comply with both laws but it meant by
applying the provincial law it was impossible for the purpose of the federal law to be served.

R: Introduced the broad operational test, now if when applying the provincial law it is impossible for the purpose of the federal law to
be served than paramountcy comes into effect.
Note: LaForest is moving away from Dickson’s Test for Conflict applied in Multiple Access which focused on instances where
compliance with one act resulted in a breach of the other. LaForest here focuses on cases where dual compliance is impossible where
provincial legislation frustrates the federal purpose – in other words, he is focusing on the purpose of the federal legislation and not
the result.

For Example – applying LaForest’s broad operational test to Ross v. Registrar of Motor Vehicles would yield a different result than
the majority found. In Ross, by not driving, the majority says he complies with the provincial legislation and is not in violation of the
federal legislation. However, according LaForest’s test, not driving would frustrate the purpose behind the flexible sentencing of the
federal legislation – to allow people to serve their sentences conveniently while working.

Rothman’s Benson and Hedges Inc. v. Saskatchewan, 2005 SCC


Justice Major rationalizes Dickson’s Narrow ‘Direct Conflict’ Test with LaForest’s Broad Test

F: Saskatchewan banned cigarette advertisements anywhere where minors where allowed, which would basically include all retailers.
The federal Tobacco Act allowed retailers to display cigarettes and advertising under certain guidelines - regulatory act which allowed
certain things to take place which were subsequently prohibited by Sask.

Two part test by Major J.:


• Can somebody simultaneously comply with the two acts?
• Does the provincial act frustrate the federal's purpose

D: Both provincial and federal legislation is valid.


1) In terms of compliance, the retailers could technically comply with both by not admitting minors or by not
displaying tobacco products or related advertising in their stores.
2) This does not frustrate the purpose of the federal legislation because the provincial and federal legislation
both serve to protect minors from tobacco use.

Note: we have now joined other nations in including frustrating federal purpose as an issue in paramountcy. Most countries have
entrenched this in the constitutional forever. We didn't know if we had it or not.

TRADE AND COMMERCE POWER

Mostly Temperance Case

Citizen's Insurance Company v Parsons, (1881) SCC & P.C

• Case laid out an ‘EXCLUSIVIST’ approach in defining the limit federal power over ‘Trade & Commerce’ and provincial power
over ‘Prop & Civil Rights’.
• Assigned narrow scope to federal power to preserve integrity of provincial power.
• Leads into the Temperance trio and a different approach to the division of powers.

F: Parson claims under insurance clause for damages due to fire. Insurance company says claim not covered by policy. Parson argues
provincial statute legislating insurance requires clear language in insurance policy regarding fire coverage, and, since this policy did
not include the appropriate language, he should be reimbursed anyways. Insurance company argues the provincial statute regulating

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insurance is entrenching on federal jurisdiction and is ultra vires the provincial jurisdiction (so it should be void and Parsons would
have had to disclose, making him unable to collect his money). The province steps in to uphold its statute (it just so happens that it
was in the province’s interest to back up Parsons so its statute could remain in effect).

I: Does the regulation of insurance fall under Federal trade and commerce power (s. 91(2)) or Provincial property and civil rights
power (s. 92(13))?

D: court held provincial head of power under 92(13) was quite widely interpreted- includes rights arising from contract (insurance)
first analysis of what s91(2) stands for

Ratio:
3 prong test - (still used today) - federal trade and commerce power means:
1. Political arrangements in regard to trade requiring the sanction of parliament
2. Inter-provincial trade
3. General regulations of trade affecting the whole dominion

Meaning of Property and civil rights for the purposes of s. 92:


 means feds DO NOT have ability to regulate contracts of particular business or trades
 fed government no power to deal with insurance, it is a valid provincial matter

Russell v. The Queen (1882) P.C. (P.O.G.G. Power)


Analysis of the Canada Temperance Act and whether prohibition of alcohol is of national significance.

F: Federal government enacts scheme to establish prohibition. However the scheme is not mandatory, local areas can opt in by
referendum. Russell lives in area where they have opted in he does not like it so challenges legislation on grounds that it is ultra vires.

I: Is the regulation and prohibition a federal or a provincial power?

D: Prohibition of alcohol may restrict what one can do with their property but it does not fall under civil and property rights. Laws of
this nature are designed for the promotion of public order safety or, moral, and which subject those who contravene them to criminal
procedure and punishment, belong to the subject of public wrongs (federal) rather than to that of civil rights (provincial).

 No particular head of power necessary. POGG used to justify decision.


“There is no ground or pretence for saying that the evil or vice struck at by the Act in question is local or exists only in one province,
and that Parliament, under colour of general legislation is dealing with a provincial matter only.”

Ratio:
 It does not matter if a federal head of power for the legislation is not found as long as you cannot find a
provincial head of power it is federal jurisdiction.
 Prohibition is designed for the promotion of public order, morality and safety (POGG) and subject those
who break these laws are subject to criminal punishment (federal); it is not an issue of civil rights (provincial).
 Simply having a local opt-in clause does no turn the legislation into local legislation – it still retains its
national character.

Class note: It is not 100% clear from the decision if the feds were using the POGG power or the trade and commerce power to enact
this legislation. However, the JCPC says alcohol is an evil that is across the country, and uniformity is desirable – those factors were
enough to make a law of national character - the fed government has the power to leg in these areas. The JCPC read into a case what
they wanted to see in the Russell case.

Hodge v. The Queen [1883] ON H.C.


(Double Aspect) – you can have matters both found in s. 91 and s. 92.

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F: Provincial govt enacts scheme regulating liquor and bars. Tavern keeper, Hodge, charged with permitting billiards to be played in
the tavern contrary to regulations made by the liquor license commissioner for Toronto (power to regulate delegated through the
Ontario Crooks Act). Hodge challenged Act on two grounds: 1) conflicted with the Dominion power over trade and commerce; and 2)
the provincial legislature could not delegate law-making powers to the Boards of Commissioners

I: Can the provincial government enact legislation to regulate taverns?

D: Province is allowed to enact this legislation – the power to regulate what happens in bars falls under civil and property rights. A
province may not legislate full out prohibition.
 Distinguish from Russell: - in Russell they have prohibition not regulation - when regulating it is a provincial civil and
property rights but outright prohibition is not a provincial power- it falls under the federal POGG power.
 POGG deals with matters that are local in nature but could become a national concern.
 This is a case of double aspect in respect to trade and commerce: “Subjects which in one aspect and for one purpose fall
within s.92, may in another aspect and for another purpose fall within s.91. Trade and commerce can be regulated at both the
provincial and federal level.

AG Ontario v. AG Canada Re: Local Prohibition Reference Case [1896] PC


Double Aspect and Paramountcy
F: The Ontario government wants to enact a statute to prohibit alcohol similar to the federal statute in the Canada Temperance Act
with some minor modifications. While the federal provisions governing temperance had not come into effect yet in Ontario, the
federal government says this is beyond the power of the provinces.
(This is a situation of double aspect: fed temperance act is under POGG power, but there is also a valid provincial law under property
and civil rights (92(13))

I: Does the provincial government have the power to enact a local statute banning alcohol?

D: Court ruled provinces have this power under property and civil rights but if the federal statute is enacted the provincial statute will
be inoperable under the covering the field paramouncy test.
 Hard to reconcile with Russell, because Russell seemed to say provincial can't regulate in this area
 Opt-in legislation- if federal provisions become operative (if do opt-in) it is only at that point that there is a clash  only at that
point provincial law becomes inoperative to the extent of the federal law

Reference re The Board of Commerce Act, 1919 & The Combines and Fair Prices Act, 1919
– Referenced in 1922.
 Limiting the powers of the federal government.
F: Federal government wants to create Board of Commerce with wide powers to deal with monopolies, hoarding of necessities, and
price fixing after WWI; required necessities to be sold at fair prices. They came up with this scheme after the experience with
shortages during WWI.

I: Does the federal government have the power to enact the board under the POGG power?

D: This does not justify use of the POGG power. To interfere with property and civil rights on this level there has to be a highly
irregular and unusual circumstance. Seems to be saying can only use POGG in an emergency situation (War, Famine, Pestilence,
Plague or other serious matter which might affect the entire Dominion). Trade and commerce power is ancillary and it should not
apply to trade and commerce within the provinces; it can only apply to other areas of federal jurisdiction in s. 91.

Ratio: The federal POGG power can only be used to override provincial heads of power in a highly unusual and irregular situation.
Only when there is an emergency does POGG apply. Legislation under POGG should not be permanent.

How does this fit with Russell?


Russel did not talk about war or famine, but only alluded to the fact that there might be an “evil” enveloping the Dominion. Here, the
Privy Council is shaping the POGG power in a way that was not originally envisaged by the court in Russell - they are almost

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indicating that you don’t need evidence –it would be self-evident (i.e. there is a major war). This self-evidence aspect is not seen in
Russell.
 The JPC is beginning to understand that if POGG power is allowed to expand, federal power grows quite dramatically, contrary to
what seems to be the listing of powers in s. 91 and 92. It begins to dawn on the JPC that the POGG is something that can easily be
misused as a power grab by the feds.

Fort Frances Pulp and Paper Company v. Manitoba Free Press Company (1923)
F: During WWI, newpapers and print services were regulated under War Measures Act. Fed controls continued temporarily after
WWI. Fort Frances Pulp and Paper Co. charged the Manitoba Free Press more money for paper after the war ended. Manitoba Free
Press complained that the lower, regulated prices that they got during the war should persist. Fort Frances challenges the regulation on
paper prices.

I: Does the federal government under POGG have the power to regulate the price of paper immediately after WWI?

Decision:
 The POGG power only applies in emergency situations where it is an absolute must for the federal government to take action and
step into some of the provincial heads of powers.
 Adds that  If it is true the war is over but war conditions are still present, it is up to the legislature to determine when the war
conditions no longer exist. However, if federal conclusion is unreasonable court can intervene.

Toronto Electric Commissioners v. Snider, 1925


F: Federal government enacted legislation for settling industrial disputes for companies with more than 10 employees – so this
applied to many industries and companies across the nation. Involved regulatory regime complete with Board review. This would get
locked out power workers back to work in Toronto. Power Company challenges claiming this deals with property and civil rights.

I: Can the federal government enact the legislation under POGG? Is Toronto being without power a big enough emergency to bring
up the emergency branch of the POGG power?

D: POGG does not apply hear, POGG only applies in an emergency like war or in the case of Russell alcoholism. At that time
drunkenness was seen as grave national emergency. Toronto without power not a large enough emergency to justify POGG.

Ratio: The POGG power can only be used in time of grave emergency and peril on a national scale - only something like war or an
epidemic can qualify as an emergency Toronto without power not a big enough problem.

The King v. Eastern Terminal Elevator Co. PC (1925)


F: Dispute between farmers and terminal elevators because elevators made too much profit. Federal government, in 1919, enacted
law to cap profit from their surplus – and forced sale of most of the surplus to the board. Company argues this subsection is ultravires.
Because of the fact that much of the Canadian grain is sold abroad, the federal government thought it was within their jurisdiction.

Case History: At SCC- heard by 5 judges- decided that Canada grain act was invalid and could only be saved if they wanted to
invoke their powers under s 92(10) which government did after the ruling

I: Can the federal government regulate all aspects of the grain trade under either trade or commerce or the POGG emergency power?

Decision:
 Feds can only regulate the interprovincial aspects of the trade not the local aspect. If they could regulate the entire grain trade
because there is interprovincial and international trade in grain they could regulate almost any industry using that logic.
 Also cannot use the POGG power because no emergency.

Dissent: argues that they could use POGG power pre-emptively to prevent an emergency. The that the grain trade is a matter of
national concern enables the federal govt to act preemptively.

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Ratio: Federal government can only use trade and commerce power to regulate interprovincial aspects of a trade not the local parts of
the trade.

Modernization of Trade & Commerce and POGG Powers (w/ Criminal Law Aside)

Proprietary Articles Trade Assn v. AG Canada, (PATA) [1931] P.C. (Criminal law regulating commerce)
F: Federal government amended the criminal code to make participating in monopolistic behaviour a crime. Appellants claim that
this is not a classic crime and, thus it does not fall under the federal government power to regulate criminal activity under s. 91(27).

I: What is the definition of criminal activity and what are the exact powers given to the federal government under section 91(27) to
regulate criminal activity?

Decision: Valid use of criminal power – criminal law power can be used to regulate trade and commerce.
 Lord Atkin: ‘Criminal Law’ means the criminal law in its Widest Sense. Extends to legislation creating
new crimes - The definition of a crime is not static and evolves over time.
 In a couple cases previous to this, the Privy Council thought the trade and commerce power was an
ancillary power (the Hodge case or the Snider Case, Labour conventions case). The Privy Council here is beginning to think that
perhaps the Trade and Commerce power should not be an ancillary power, but a power that stands alone.

Reference re the Regulation and Control of Aeronautics in Canada , [1932] PC (Conventions)


F: Privy Council has to decide whether feds or province have control over Aeronautics. Fed’s entered into aeronautics treaty under
U.K. and attempted to pass domestic legislation consistent with the treaty obligations

D: Section 132 says Parliament shall have all powers necessary for performing all obligations of Canada arising under treaties made
by the UK on behalf of the Commonwealth. Under s.132 federal government has obligation of fulfilling any treaty entered in by
Britain on Canada's behalf. Because these matters of aeronautics are tied into matter of national interest and importance, they fall
under POGG (“aerial navigation is a class of subject which has attained such dimensions as to affect the body politic of the
dominion”). Laws regarding new innovations will be decided case by case if under POGG.

Re: Regulation & Control of Radio Communication, [1932] PC (National Concern)


F: Canada independently entered into convention regulating radio. Outside s. 132 because it is not a treaty entered into by the UK, but
by the government of Canada on its own.

I: Is control of radio a federal or provincial power?

D: It is an issue relating to the federal government, but it is not dealt with in any of the heads in 91 or 92. Therefore, it goes to the
federal government by default under POGG.

Ratio: If it is a matter of national concern, POGG can fill the gap.


This expanded again federal jurisdiction, quite dramatically. This is a step forward from the perspective of centralists.

The Genesis of Canadian Federalism II (POGG)

Bennet came up with plans for national welfare. Upon regaining leadership in 1935, Mackenzie King sent matters of national welfare
to the privy council.

AG Canada v. AG Ontario (Labour Conventions) (1937) PC


F: Federal govt wants to impose legislation in accordance to an international treaty they signed related to labour relations - Maximum
hours of work, 8 hr days, wages, and mandatory day of rest every week….all attempts to curb unemployment. Provinces claim that
the feds do not have the power to do this it falls under civil and property rights.

I: Does the federal government have the power to implement legislation to enforce an international treaty even if the legislation
would originally fall under a provincial head of power? Does the emergency POGG power allow the feds to enact labour legislation
during the depression?

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Decision:
 The federal executive has the right to enter into any international treaty it wishes but then it is up to the
legislature that controls that head of power to enact the legislation.
 The provinces control property and civil rights so they have to enact labour legislation.
 Also the depression is not an emergency that would justify the use of the emergency POGG power. So the
feds do not have the power to enact the labour legislation.
 “It is only necessary to call attention to the phrases in the various cases, ‘abnormal circumstances’,
‘exceptional conditions’, ‘standard of necessity’…to show how far the present case is from the conditions which may override
the normal distribution of powers in s.91 and 92.”

Ratio: The depression is not an emergency that would justify the use of the emergency POGG power.

 This was a 180 degree change from the previous decisions which talked about the “national concern” branch of the POGG
power (the other branch, which is less debated, is the “emergency power” view of POGG). They say now that POGG is really an
emergency power only. They did not say they were wrong previously. They just reiterated their previous decision on radio saying
that it was a national concern BECAUSE it was an emergency situation.

Distinction between this case and the Radio Case & Aeronautics case.
• Aeronautics was based on s.132 (treaties entered by Britain power).
• Radio case falls under POGG because it is a new category and new categories fall under the federal jurisdiction.

AG Canada v. AG Ontario (The Employment and Social Insurance Act), 1937 PC


F: The federal government wants to implement employment and social insurance. Involves a federal government scheme to create a
compulsory system of insurance against unemployment for workers.

I: does the federal government have the authority to implement unemployment insurance?

Decision: This falls under provincial head of civil and property rights (92(13)). It does not matter that the federal government is
using federal dollars to provide assistance to individuals, even though this program does not negatively impact provinces it is within
their heads of power and so feds cannot enact legislation dealing with it. Again depression not an emergency that will justify using
POGG.
 Not justified under emergency power of the government since it is permanent and not temporary (support
emergency doctrine with regards to POGG).
 Held that it could not be justified by calling it a tax under s. 91(3) since it was a system of compulsory
insurance.
  Result of case was the addition of s. 91(2A), which gave feds jurisdiction over unemployment insurance.
 Feds have ability to make conditional grants to increase its presence in provincial matters where they did
not have authority before.

AG British Columbia v. AG Canada (The Natural Products Marketing Act), 1937 PC


F: Federal government enacted legislation regulating goods traded intraprovincially and internationally. This was an attempt to
equalize prices across provinces during the depression for the basic necessities of life. Nobody was opposing the complex scheme, but
King still sent it to the Privy Council as a reference.

I: Does the federal government have the jurisdiction to do this under POGG or trade and commerce?

D: Federal government does not have the jurisdiction. Federal government can only regulate interprovincial aspects of industries.
Also does not fall under POGG because no emergency or is not a new technology or issue that requires regulation. This type of
regulation can only be achieved through cooperation between the federal and provincial governments (doctrine of cooperative
federalism).
 Affects s. 92(13) and could not be found in a head of s. 91.
 Does not permit regulation if individual trades or commerce are confined to one province and so s. 91(2) does not apply.
 Constitution even overrides the consent of the provinces.

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Ratio: Federal government cannot regulate local matters of industries even if they trade interprovincially and internationally.
 POGG is for emergency only or situations of extraordinary peril. This was not deemed this sort of situation by the court.

Arguments to Reform the Judiciary cropped up after these decisions against Bennet’s plan for national welfare
There were calls at the time to reduce the role of the Privy Council – many centralists believed Bennet had come up with some
excellent ideas for reform and the Privy Council, who were strong provincialists, struck it down – many thought this was wrong.
 In 1949, the Privy Council was no longer the high court of the Country.
 Similar to calls to reform the SCC today? Does the SCC really look at different things than the Privy
Council did? Is the SCC concerned about Canadian issues in a way the Privy Council was not concerned? Some say now that the
SCC represents some parts of Canada more than others (i.e. favours central Canada).

**Reference re Anti Inflation Act**


F: Trudeau’s Liberals won a majority in 1974, and, soon after he announced he would bring in wage and price controls – 1.5 years
after the Conservatives were campaigning for it. Trudeau argued that wage and price controls were needed in 1975 because of a
different situation – not because of OPEC anymore, but because of contracts getting out of control.
Part of scheme was to set up federal tribunal to monitor the scheme. The scheme did not apply to provincial civil service. Act would
automatically expire in 1978 unless terminated early or extended. Preamble of act states that inflation is of “grave national concern.”
This legislation was in place for 6 months and then was sent to SCC as a reference for political reasons (show plan is working well,
get political credit for the plan, pre-empted lawsuit against them).

In the Preamble of the Anti-Inflation Act, the drafters used the term “matter of national concern” as an attempt to show that
this piece of legislation is based on POGG. They chose these words because they wanted to tie into the case law without making
it seem like an emergency. If it is an emergency, it suggests a temporary nature while if it was a national concern, the
government would argue the measures should be left in place for a longer period.

I: Can the Anti Inflation Act be justified under POGG either under the national concern branch or the national emergency branch?

D: 7 out of the 9 justices decided that the legislation could be supported under the emergency power. 2 decided that it could not. 4
out of the nine left the question open as to whether it can be supported under the national concern power 5 said that it could not be
supported under this power.

The court ends up rendering a decision based on emergency – how come?

Judges Emergency National Concern Reasons


Laskin, Spence, Emergency A Is a national need rational basis
Judson, Dickson concern to show
emergency/crisis
(Laskin, an English (not explicit
speaker, allowed for evidence)
a broader
interpretation of the
preamble of the act
as he is attuned to
the malleability of
the language).

deGrandpre, Beetz Not emergency Not a national They see there is not
concern an emergency from
(Beetz, a Quebecker the preamble of the
took the meaning of Act – it does not
“national concern” expressly say there
literally as per most is an emergency.
interpretations in the See the element of

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civil law. Also national concern as


wants to contain too broad; inflation
feds for political infringes too much
reasons). on the provincial
power
Ritchie, Pigeon, Emergency (B) Not a national Need very clear
Martland concern evidence/urgent
necessity to prove
emergency. See the
element of national
concern as too
broad; inflation
infringes too much
on the provincial
power.

Reasons: There are number of arguments that have to be dealt with before it can be shown that there is an emergency.
1) In the preamble of the act it is never stated that an emergency exists all it says is reduction of inflation has become
“a matter of serious national concern.”
 Majority does not put too much weight on the fact that an emergency was not explicitly declared.
Majority reasons that in preamble they are saying there is an economic crisis that is bringing into peril the
economic stability of the country and this constitutes an emergency.
 Dissent saying that the use of national emergency power enables Parliament to override provincial laws in
potentially every field so it must be explicit when using the power.
 Beetz and de Grandpre point to the preamble – because the preamble of this Act says “matter of national
concern” it is clear to them that it is not an emergency situation – if it was an emergency, the drafters would
have used the word “emergency.”
Comment: From this we see  No federal parliament would be wise to draft a piece of emergency
legislation without expressly referring to it as an “emergency.”
2) Rational Basis:
 Laskin says all you need to ask is if there is a rational basis for the legislation which is based on an
emergency. Economists unsure amongst themselves if it was an emergency. (This in effect enlarges the federal
power by setting a standard for justifying an emergency; some argue this case makes it easier for the feds to
establish an emergency – the “rational basis” test is not a very high threshold).

3) The important question is if there is an emergency at the present time. Majority says that this was a political
question. Laskin limits the question to “is there an emergency now?” The fact the provinces and the civil services
were left out of the scheme (with the ability to op-in) does not mean it is not a crisis.

Emergency or National Concern?

Emergency National Concern


 Not contemplated in preamble of Anti-  Contemplated in preamble of Anti
Inflation Act Inflation Act
 Temporary measures  Can be extended for longer period of
 Inflation was an emergency (7/9 time
judges)  Inflation not a national concern (5/9) –
 Federal govt can enact legislation in very close
peacetime dealing with emergency power. Why Inflation should not be seen as a national concern:
 Parliament has power to decide  5 judges argue inflation is not a
whether state of emergency crisis exists. national concern b/c anything that affects the Can $ or GDP
 Laskin Laskin, Spence, Judson, can affect inflation  would give feds too much broad
Dickson said you need only “rational basis” to declare reaching power.
emergency (sparsely defined: less than strict scrutiny, comes
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from US courts)  Difficult to claim something is of


 Ritchie, Pigeon, Martland says you “national concern” when it typically falls under s. 92
need clear expert evidence.  if they wanted it to be under fed control, it would have
been listed in one of the enumerated heads of power in s.91.

 The 4 judges who decided it was a


national concern, examined it under POGG.

Ratio: When enacting emergency legislation under the emergency branch of POGG courts do not have to explicitly say that there is
an emergency situation. As long as there is some support for the fact that there is an emergency that is good enough to invoke the
national emergency branch of POGG. Courts cannot deliberate on the effectiveness of policy so long as legislature believed rationally
that it would solve the problem that is good enough for courts. First constitutional case with large use of extrinsic expert evidence.

All 9 judges agree on the following:


• The whole court would agree that the feds can, in peacetime, enact legislation based on emergency power, which would
supercede the normal divisions of power. (either by rational connection – Laskin, clear evidence – Ritchie, or expressly stated
in the preamble – Beetz).
• Parliament has some power to decide whether a state of emergency exists.
 The court diverged on the issue as to what proof you need to show that an emergency exists.

 the difficulty of defining what “national concern” is plays out in Zellerbach as well.

R v. Crown Zellerbach Canada Ltd, SCC 1988


Facts: Crown Zellerbach Canada Ltd engaged in logging, dumped wood materials in lake, breech of federal Ocean Dumping Control
Act. Zellerbach claims that this is provincial water so any federal legislation regarding it is ultra vires. Federal government tried to
justify the legislation under national concern branch of POGG. The Ocean Dumping Control Act only applies to marine water that is
not international water - act clearly includes salt water but there is a question as to whether it can include BC's internal salt waters.

Issue: Does the Ocean Dumping Control Act fall under the national concern branch of the federal POGG power?

Decision: The court draws out four conclusions about the national concern branch of POGG.
Le Dain (p306) summarizes the analytical approach for examining matters of national concern (it all comes together in paras. 3 and 4:
1) The national concern doctrine is separate and distinct from the national emergency
doctrine of POGG. The emergency branch is a temporary power and the national concern branch is permanent.
2) National concern doctrine applies to both new matters which did not exist at
confederation and to matters which, although originally matters of a local nature, have since, in the absence of national
emergency become matters of national concern.
3) National concern requires singleness, distinctiveness and indivisibility that clearly
distinguishes it from matters of provincial concern and it makes sense to deal with it on a federal level.
4) To determine if a matter has attained the required degree of singleness, distinctiveness
and indivisibility that clearly distinguishes it from matters of provincial concern consider the provincial inability test: what
would be the effect on extra provincial (national) interests of a provincial failure to deal effectively with the control or
regulation of the intra-provincial aspects of the matter?

Majority: Marine pollution is a matter of national concern. Provincial saltwater and territorial water has the required degree of
singleness, distinctiveness, and indivisibility to distinguish them from matters of provincial concern

Dissent: Giving the federal government jurisdiction over inland waters sets a bad precedent. Argues we need to draw the line to
prevent the overreaching of federal control.

Haigh’s comments: The 1988 Court appreciates Canada’s international obligations in reducing pollution- by giving the federal
government more power on this issue, the court is giving the government the ability to uphold its international obligations.

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Friends of Old Man River Society v. Canada (Minister of Transport), 1992


F: The Environmental Assessment and Review Process Guidelines state that if a proposal could have serious adverse environmental
effects, there must be public review by an environmental assessment officer. Alberta wants to build a dam on Old Man River, so they
claim the legislation oversteps federal jurisdiction.

I: Can this federal environmental legislation be justified under the national concern branch of POGG?

D: No, it cannot be justified under POGG.


 Court ruled environmental protection is not a federal head of power and does not have the requisite
distinctiveness to meet the test under the national concern doctrine of POGG.
 “The environment…encompasses the physical, economic and social environment touching several of the
heads of power assigned to the respective levels of government"
 Need to reconcile with Zellerbach; Zellerbach, marine pollution is characterized as a national concern
because it is predominantly extra provincial and international.

Ratio: Environmental protection is not a federal head of power and does not have the requisite distinctiveness to meet the test under
the national concern doctrine. However marine pollution is characterized as a national concern because it is predominantly extra
provincial and international, this is from Zellerbach.

Federal Criminal Law Power


 Compare federal criminal law power with the provincial powers illuminated in s. 92.
 The PATA case established the test for what criminal law is – any activity that is prohibited and has
penal consequences attached to it, is criminal. This case was all about anti-monopoly provisions.

Margarine Reference
- adds “public purpose” to prohibited act and penal consequence for federal criminal power.
F: Dairy industry wants to prohibit the importation and sale of margarine in Canada as it was competing with butter. A new
requirement for criminal law power is added on top of the power from the PATA case.

I: Does the prohibition on margarine sales fit into the “public purpose” of preserving public health, security, order and safety?

Purpose and Form Test:


Purpose: every criminal law provision must have a public purpose dealing with public peace, order, security, and health.
Form: it will be in the form of penal consequences which are enforced by the courts.

D: In the correct circumstances, criminal power can be applied to issues of commerce. Apply the Purpose and Form Test to
Margarine. Prohibition of margarine has no public purpose.

RJR MacDonald v. AG Can, 1995


How far does criminal law go? RJR and Hydro Quebec push the boundary of criminal law. It used to be thought you could
only focus on the activity or the substance – this case says parliament can make the choice – they can use other regulatory
solutions that prohibit certain aspects related to that activity – that is a valid exercise of the criminal law power.

F: Restrictions on advertising and sale of cigarettes - requirement of health warnings, restrictions on who they can market to and
where they can market. When thinking of the validity of a federal provision think of it in terms of: form (prohibition and penalties)
and purpose (prohibition of a social evil as illustrated by Rand in Margarine reference).

Majority: Criminal law can embrace new matters such as cigarettes. Control of an ‘evil’ does not necessitate an outright ban of the
substance, but, rather control of ancillary measures (advertising) through criminal law power is acceptable. The form (penalty) and
purpose (smoking is bad) test still applies to the ‘evil.’ Presence of exceptions (e.g. health warning to included if it will be sold) didn’t
preclude finding that legislation was criminal law.
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Dissent: advertising is too far removed from the injurious or undesirable effects of tobacco use to constitute a valid exercise of
criminal law power. Asks why they didn’t ban tobacco itself. They argue there should not be any exceptions if it is truly criminal law.
(Haigh questions collection of taxes on tobacco products which are regulated criminally).

Hydro Quebec, 1997


F: D charged w/ violating interim order under the Canadian Environmental Protection Act, (established process of regulating use of
toxic substances). Under CEPA, where Ministers believe that immediate action is necessary with respect to substance, s. 35 allows for
making of ‘interim orders’ w/out going though usual procedure. Hydro Quebec opposed interim order against them which circumvented
normal procedure.

I: Can environmental issues be regulated through the criminal law power?

Majority: Permits criminal law power use based on regulatory discretion rather than explicit provisions.
 Because of the nature of the environmental protection, we will allow the criminal law power to apply even
where the actual substance which causes the offense is subject to an administrative decision  requirements PATA case (which
were thought to require that criminal law restrictions be based on explicit and clear provision) not as strict as formerly thought
 (in every other provision the feds had built on the criminal law power (margarine, cigarettes), in each of
those cases the provision was set out in the statute – here, you can read the statute and you still may not know what is
prohibited because it is up to the minister to decide what is prohibited).

Dissent: sticks to PATA case (if Pith and substance is prohibitory rather than regulatory, then it is valid). This is regulatory and
should not be considered valid for that reason.

General Rule: legislation with admin/regulatory features directed at defining the nature and scope of prohibitions and penalties is
constitutionally valid exercise of fed crim law power as long as the prohibitions and penalties are the P&S of legislation

After these two cases: Here, the majority decision from Crown Zellerbach is cut down and limited to a very specific area of pollution.
After the Hydro case, the court seems to be saying that the court should use criminal law power to deal with the environment and not
POGG.

Re Firearms Act, 2000


F: Alberta govt argued that federal gun control legislation (which sought to regulate but not ban firearms through complex regulatory
gun registry system) was really an attempt to regulate personal property, which falls under the provincial head of power. Here, the feds
were applying RJR and Hydro Quebec to regulate firearms: they took the notion that you do not need an outright ban but can ban
ancillary aspects from RJR and they took the notion that you can have a regulatory scheme under criminal law from Hydro Quebec case.

D: Alberta failed and law was found to be good criminal law.

Summing up the federal criminal law power.


 RJR – ancillary activities can be prevented under criminal law power as long as it is in the service of
prohibiting harmful activity

 Hydro Quebec – harm to the environment, not harm to a person and not harm to property, is a valid
purpose of criminal law. The prohibition with penalty can be read quite widely to include prohibitions that are
determined by the exercise of administrative discretion

 Hydro Quebec and Firearms Case – show that complicated administrative regimes where the decision
making is carried out by the executive or administrative officials is also valid criminal law.

 These are all relatively recent cases in the last 10 years or so. These 3 cases have taken the criminal law power in directions it
has never been before.

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Provincial Power in “criminal areas”

Re Nova Scotia Board of Censors v. McNeil , 1978 SCC


F: D as private citizen sought declaration that provision of prov Theatres and Amusement Act that req that all films be submitted to
provincial censor board prior to their exhibition and the unfettered pwr of board to permit/prohibit showing of film

D: 5:4 decis upholding provincial legislation

Majority (Ritchie): Provision is preventative and regulatory rather than penal and therefore acceptable
under provincial head of power – provincial in regulating local trade can set its own standards; Province
can entrench on areas of morality as long as pith and substance is regulatory. (stronger judgment—from the
point of view of the div. of power)

Dissent (Laskin): Province is intruding on federal criminal jurisdiction by masking a criminal provision in
a regulatory scheme; morality is a federal jurisdiction.

Westendrop v. Queen, 1983 SCC


F: City of Calgary passes by-laws dealing with prostitutes congregating and causing embarrassment. (similar to NS attempt to stop
abortion in Morgentaler).

D: This is a clear attempt to punish prostitution in a criminal fashion; this is ultra vires the municipal government. Prostitution does
not relate to any head of power under s. 92.

Note: if they wanted to control prostitution, it would have to be construed effectively as an attempt to control the streets.

Rio Hotel Case v. NB (Liquor Licensing Board), 1987


The Court held that, dispite overlapping with valid federal law, the provincial law that restricted the amount of nudity in bars was
constitutionally valid. Goes against Westendorp.

F: The NB Liquor Control Act required that all liquor licences to be accompanied by an entertainment licences that limited the the
degree of nudity allowed within the establishments.

I: Rio Hotel decided to challenge the constitutionality of the law on the grounds that it related to public morality which is a matter of
federal criminal law.

D: Dickson characterized the law as regulating entertainment as a means to boost alcohol sales, and did not characterize it as an issue
of morality. Presumptively this matter is both of a local nature and relating to property and civil rights. Though there are provisions
within the Criminal Code dealing with nudity, they do not conflict with the provincial law. Furthermore, the law did not possess any
penal consequences required for all valid criminal law.

Canadian Charter of Rights and Freedoms

How to Answer a Charter Question

1. Does the Legislation Contain an Express Override Clause?


• IF CLAUSE IS VALID (S. 33)  Legislation is automatically accepted for 5 yrs. Do not
do analysis! IF NO  MOVE TO STEP 2.

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2. Does the Charter Apply to the proposed legislation (Look to Application of


Charter)?
• IF NO  Stop! No violation of Charter rights!; IF YES  MOVE TO STEP 3.

3. On what Charter Right might the Proposed Legislation Infringe?


• IF F OF R  Use Big M test (‘note 2’ in case);
• IF EQUALITY  Use the LAW TEST, look for any adverse effect discrimination
(Eldridge), look at reasonableness (Gosselin), look at comparator group (Hodge), look
at benefit being withheld (Auton);
• IF F OF E  Look at whether that action is covered (Scope of F of E), then look to s.
2(b) Test, consider whether it is Commercial Speech… or Hate Speech.

4. Was the Right in STEP 2 Infringed?


• IF NO  Stop! No violation of Charter rights!; IF YES  There was a violation of the
Charter right AND go to STEP 5.

5. Was the Violation a Reasonable Limit under a s. 1 Analysis/Oakes Test?


• Look to Formal Limitations on Rights, then move to the Oakes test. Important to
look at the legislation in context (see Developments since Oakes).
• IF NO  The Charter right was violated, but this violation was a reasonable limit and
the legislation holds. IF YES  The Charter right was violated and this was not a
reasonable limit and the legislation fails.

Historical and Sociopolitical Overview


• We’ve always had rights- even before Charter, see Roncarelli v. Duplessis
• Diefenbaker tried to bring about a ‘Charter’. He came up with a statute instead that
was the Bill of Rights.
o Limited effect
o Didn’t have hierarchy of being constitutional doc (only statute)
o Only applied to federal entities

How the Charter Came About


• The U.N.’s promotion of equal rights and world recognition of these rights got Trudeau
interested in bringing about the Charter
o It all came together in 1982 with the Patriation of Canada
• Alan Cairns: Immigrants coming to Canada b/w 1950 and 1980 uncomfortable with
the U.K. idea of Parliamentary sovereignty and were more comfortable with the idea
of individual power.
• Peter Russell: Believes Trudeau was using Charter to focus on his own indiv beliefs
and values and wanted to slant the fight away from Quebec and onto the individual.

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Is the Charter Pro or Con?

Con
Mike Mandell: Believes the law has become too politicized, while people don’t realize
it’s being politicized.- “Supreme court dressing up politics in legal language.”
Morton: Judges’ opinions are making political decisions just like the legislature, but their
opinions are just more liberal (would agree with Mandell about politicization).
Richard Posner: SC of US decisions are truly political, not based on justice or morality.

Pro
Haigh: Charter has solidified individual rights.
• BUT, Responsibilities are not even on the agenda of debate and people focus on
rights now and it’s possible to go to far with this. People immediately turn to their
rights, when in the past, there might have been some debate about other things as
well (Con).

Alteration of Canadian Federal System


• Parliamentary privileges reduced, because Charter is now Supreme Law.
o Necessity for the judiciary to fill voids.
• However, our Charter has 2 things that weren’t seen before: a) Section 33 override
and b) s. 1 justification.
• Canada now strattles the divide between the U.K. style of Parliamentary sovereignty
and the U.S. constitutional republic style.
o In the U.S., if you want to override the Charter, there are basically 2 options:
 You can pack the court with ‘your’ judges.
 You can amend the constitution.
o U.K. on the other end has no constitutional doc so Parliament can pass
basically any laws they want (but the U.K. has moved towards us;
incorporated European convention of protection of rights, but courts cannot
strike laws down on this basis; they can only say the law is incompatible).
o In Canada, the courts can strike laws down if they are inconsistent with
Charter, but Parliament then is able to override this in special circumstances.

Interpretation of Rights
• Dickson takes a purposive approach
• The claimant must show government action or inaction has the purpose or effect of interfering with the exercise of a
charter right or freedom.
• Charter is given a Generous/large and liberal interpretation because few words in charter
• No guarantee in Charter to basic rights like food, medicine, or shelter.
o Haigh suggests this may be because our Charter is modeled on the U.S.
Charter which had no mention at all of these basic rights (different era).
o South Africa, on the other hand, does guarantee some basic rights.

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When does the Charter Apply?

Hunter v. Southam (1984)(SCC)


• Facts: Offices of newspaper company searched
• Ratio: Decided that in the case s. 8 of Charter prohibiting “unreasonable” search and
seizure, the purpose of Charter is to guarantee freedoms. S. 8 acts as a limitation on
whatever powers of search and seizure the government already and otherwise
possesses. It does not in itself confer any powers, even of "reasonable" search and
seizure on the government.
• Charter should be interpreted in a broad purposeful approach to give an individual the full
measure of the rights afforded to them. This emphasizes, a generous rather than a legalistic
approach, aimed at fulfilling the purpose of the guarantee and securing for individuals the full
benefit of the charters protection

“Prescribed By Law”
• need to ensure public accountability for any restriction on a constitutional right
• fair notice to citizen
• rule of law
• void for vagueness

R. v. Nova Scotia Pharmaceutical Society (1992)(SCC)


• Ratio: Very high threshold for finding that a law infringes on s. 7 for vagueness.

Formal limitations of Rights – OAKES TEST


• Onus is on the claimant to show that there is a right and that it’s been infringed.
o Then, s. 1 kicks in and the government must justify the infringement if they
want to.
• S. 1: 2 parts
o (a) Must be “Prescribed by Law”
• Can’t have something that is so vague as to not be prescribed by law
(R. v. Nova Scotia Pharmaceutical).
o (b) Oakes test (Dickson set out test). (1) The first stage is that there
must be a “pressing and substantial” objective (usually this part of the
test will be satisfied), (2) The remaining parts of the test involved a
form of “proportionality test", which has 3 sections:
• Rational Connection Test: Measures adopted must be carefully
designed to achieve the objective of the law.
• Minimal Impairment Test: The law must impair rights as little as
possible. (Compare impugned measure to alternative measures).
• Proportionality Test: There must be a proportionality between the
effects of the measure and the objective which has been identified as
being of sufficient importance. (Do benefits achieved from the law
outweigh the impact on rights associated with it?)
• Clarification to the Oakes Proportionality Test from Dagenais v. Canadian
Broadcasting Corp. (1994)(SCC): “Deleterious effects test”- Even if the
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importance of the objective outweighs the adverse effects of the measure on


protected rights, the adverse effects of the measure cannot outweigh the “actual
salutary (beneficial) effects.”

Developments since Oakes:


• Edmonton Journal v. Alberta (1989)(SCC): Courts assess the value of the right and its
restriction in context rather than in the abstract.
• Irwin Toy Ltd. v. Quebec (1989)(SCC): distinction between cases which government
is mediating interests of competing groups (gives a generous application of s. 1)
and cases which government is singular antagonist of individual (strict application
of s.1)
• Thomson Newspapers Co. v. Canada (1998)(SCC):
o In this case the court held that a federal ban on the publication of voter
opinion polls during the last few days before the election was an
unjustified restriction on freedom of expression.
o Protection under constitution varies depending on nature and value of
expression
o This is not because a lower standard is applied, but because the low value
of the expression may be more easily outweighed by the government
objective.
• RJR Macdonald Inc. v. Canada (1995)(SCC): Commercial expression must be
differentiated from personal expression.
• R. v. Lucas (1998)(SCC): Libel expression (in a criminal context) is an even lower
form of expression than commercial expression. BUT, McLachlin (dissent) argues
that the nature of the expression should only be brought in at the proportionality
test stage (as opposed to Cory J who used the low value of libel expression at
various stages).

• Haigh: Thinks the ‘context’ distinction is unnecessary, because it allows for judges
to define context as narrowly as broadly as they like. Context is essentially built-in
to the Oakes test, so there is no need to add this extra layer.

Can you use a fiscal crisis as a s. 1 justification?


• Newfoundland (Treasury Board) v. N.A.P.E. (2004)(SCC): Govt. was allowed to use
fiscal crisis as s. 1 justification to remove pay equity.
o Haigh: Disagrees with decision; Court just took judicial notice of fiscal crisis
and solution; No mention of alternative less impairing solutions.

Section 33 – Override (Notwithstanding Clause)


• People from both right and left wanted override clause included in Charter.
• Allows Parliament or legislatures of provs to enact legislation expressly immune from
Charter review.
• Extends to s.2 (fundamental freedoms), and s.7-15 (legal rights and equality)

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• All that is necessary is an enactment of a law containing an express override


provision. Act will operate notwithstanding the provisions of the Charter, but will
automatically expire 5 years after it comes into force.
o Rationale: to force legislature to reconsider the issue regularly about the
legitimacy of overriding fundamental rights and freedoms
• Power does not extend to ss.3-5 (democratic rights), s.6 (mobility), ss.16-23
(language rights), or s.28 (sexual equality)
• Ford v. Quebec (1988)(SCC): Quebec wanted to put s. 33 clause into all existing laws.
It was held that s. 33 could be put into all future laws, but could not be put in
retroactively.

Application of the Charter


• S. 32 states that Charter should apply to govts (Parliament and provs).
o Is this exhaustive? I.e. Should it apply to quasi-govt institutions?
• S. 52 states that the Charter is Supreme law.
o But, constitution (and Charter) doesn’t necessarily apply to every action and
in every situation.

Does the Charter Apply to Common Law?


RWDSU Local 580 v. Dolphin Delivery Ltd (1986)(SCC):
• Facts: The employees of Puralator want to protest at the headquarters of a third party that is
providing services to their employer. The third party says that the union is bared from
protesting at their headquarters based on common law tort action. The union argues that this
rule should be struck down because it violates their right to freedom of expression.
• Issue: To what extent does the charter apply to the common law and private parties?
• Ratio: Held that Charter will apply to common law where common law forms basis for
government action and the action infringes a private right, but not where it is a
matter strictly between private parties (but judges should make laws with Charter
values in mind).
• In present case, McIntyre found the Charter shouldn’t apply because it was common
law, not statutory.
o Haigh: Thinks distinction between private and public rights is a false
dichotomy and there should not be a divide in where the Charter applies.
o Another critique of Dolphin Delivery is that citizens must abide by both
common law and statutory provisions, so why should only one be subject to
Charter review.
o Some subsequent cases have held that judge made law is subject to the
Charter: E.g. Rahey, but this was a case of the judge acting as a
representative of government and not really the substance that the judge
was speaking on

Hill v. Church of Scientology of Toronto (1995)(SCC):

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• Facts: Hill is a prosecutor in Toronto suing the Church of Scientology as a private


individual. Hill is using a common law libel action based on untrue statements the
church made about him.
• Issue: When two private parties are involved in action with regards to a common law
tort is the charter applicable and is the common law tort of defamation inconsistent
with the charter?
• Ratio: Charter not extended to claim because it was a common law action in
defamation. Private parties owe each other no constitutional duties and cannot found
their cause of action upon a Charter right. The most that the private litigant can do is
argue that the common law is inconsistent with Charter values. The test for
consistency with Charter values must be more flexible than the traditional s. 1
analysis undertaken in cases involving government action cases. Charter values
framed in general terms, should be weighed against the principles which underlie the
common law. With charter values it is up to the party challenging the
common law to bear the burden of proving not only that the common law is
inconsistent with Charter values but also that its provisions cannot be
justified.

• Slaight Communications Inc. v. Davidson (1989): The Charter was held to apply to the
order of an adjudicator/arbitrator acting pursuant to the Canada Labour Code because
the adjudicator was exercising powers conferred by the legislation. Although the letter
was seen as a violation of freedom of expression, it was held to be a reasonable limit
under s. 1.

Governmental Action
McKinney v. University of Guelph (1990):
• Facts: Professors challenge the mandatory retirement rules imposed by Ontario
Universities on the grounds that they violate the discrimination provisions of the
charter. Organization decided to challenge this based on the Charter (s. 15 – age
restrictions).
• Issue: Are universities are considered government bodies?
• Ratio: Charter doesn’t apply to universities because they are autonomous from
government.
o government cannot determine who the university hires as faculty, who they
admit, and most of the individuals who sit on the boards of universities are
not appointed by the government
o It is true that Universities are created by statute, but, according to La Forest,
the government always has influence over corporations;
o Just because an organization is created by statute, relies on government
funding for its survival, and serves a public purpose does not make them a
government body. The government must have some type of direct control in
shaping the bodies policies for it to be considered a government body
o 2 Stage test for determining governmental action.
 Is what is being contemplated an act of government?

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 Even if it’s not an act of government, is the particular activity at issue


ascribed to government?

Godbout v. Longueuil (1997)(SCC)


o Charter should apply to municipal govts as well even though they are not true govt
entities under s. 32, because they are exercising governmental funcs.
o “where entities other than Parliament, the provincial legislature or the
federal or provincial governments…are in reality, “governmental” in nature –
as evidenced by such things as the degree of government control exercised
over them, or by the governmental quality of the functions they
perform – they cannot escape Charter scrutiny”
o not restricted to entities that are by their nature governmental, particular
entities will be subject to the Charter in respect of certain governmental
activities they perform even if the entities themselves cannot accurately be
described as “governmental” per se

Douglas/Kwantlen Faculty Association v. Douglas College (1990)(SCC)


• Facts: The affairs of the college were managed by a board appointed by the provincial
government. The minister was allowed to establish and issue directions and
approved all bylaws of the board.
• Ratio: The court was unanimous in concluding that the charter applied to the actions
of the college
o Colleges are akin to Crown agencies run by the Ministry of education (not
independent bodies like universities). This decision was followed in Lavigne
v. Ontario Public Service Employees Union (1991)(SCC) for community
colleges.

Stoffman v. Vancouver General Hospital (1990)(SCC)


o Despite the fact that the government appointed most of the board members of the
hospital, board members make decisions independently; Hospitals are independent
from government
• If routine or regular control of hospital policies was in the hands of government or if
the mandatory retirement policy had been dictated by government, the charter would
have applied.
• The majority also ruled that provision of a public service, even one as important as
health care, did not qualify as a government function under s. 32.

Eldridge v. BC (AG) (1997)(SCC):


• Facts: 3 deaf people sought a declaration that the failure to provide public funding for
sign language interpreters for deaf when they received medical services violated s. 15
of the Charter
• Ratio: Distinguished from Stoffman
• Although benefits were delivered and administered through the private institutions, it
is the government and not the hospital that is responsible for defining the content

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and service to be delivered (despite the govt delegating this responsibility to the
hospital), so the Charter should apply.
• “public function” test is not sufficient, must be found to be implementing a specific
governmental policy or program
• “direct and precisely defined connection” between specific government policy
and the hospital’s impugned conduct

Vriend v. Alberta (1998)(SCC)


• Facts: Sexual orientation not being included in Alberta Human Rights Legislation.
• Ratio: If a Charter right or freedom requires the fulfillment of a positive obligation, the
Charter will apply to inaction on the part of the government with jurisdiction to meet
that obligation.
• Omission violated Vriend’s equality rights and held that the words “sexual
orientation” should be read into the relevant provisions of the Act

Hill v. Church of Scientology of Toronto (1995)


o The fact that litigant was a government employee was not sufficient to bring an action
under Charter scrutiny. Must be involved in government activity

Freedom of Religion
o S. 2(a):
o The incorporation of religion into the preamble, according to Haigh, was a last
minute addition to the 1982 Act – Trudeau put it in to be agreeable to speed
negotiations along
o Supremacy of G-d in preamble, rarely relied upon
o s. 2(a) – freedom of conscience and religion
o Conscience comes before religion in s. 2(a), but no Charter case has ever been
brought on a ‘conscience’ issue.

R. v. Big M Drug Mart (1985)(SCC)


o About Lord’s Day Act (Fed leg).
o Ratio: 1) The guarantee of freedom of conscience and religion prevents the
government from compelling individuals to perform or abstain from performing
otherwise harmless acts because of the religious significance of those acts,
o 2) For s. 2(a) analysis, look at (a) purpose and (b) effect of the act. -
Dickson says you cannot have a shifting purpose: Govt cannot argue the
original purpose behind an act changes as society changes
o 3)A corporation can challenge under s.2, and
o 4) For s. 1 analysis, Dickson says it cannot come under the criminal law power. If
anything, it falls under provincial jurisdictions of property and civil rights
o no need for a s.1 test –
o Lord’s Day Act asserts an objective which has never been found by the SCC to
be the motivation for the legislation

Edwards Books and Art v. R. (1986):


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o Facts: Retail Holidays Business Act;


o Said must have Sunday day of rest for worker’s rights purposes
o Exemption that allowed stores to open Sunday if they were closed Saturday, if
they had fewer than 8 employees and less than 5 000 feet of retail space
o Ratio:
o in Big M Drug Mart, court held that both purposes and effects of legislation are
relevant to determining its constitutionality
o Majority: Purpose was okay because it was not founded in religion (for worker’s
right, not religion). But, in effect, economic restrictions impacted religion because
forced those to be closed two day (Saturday and Sunday)
o However, the legislation was upheld under a s. 1 analysis (only minimally impaired
rights; special provisions for some business, tried to accommodate Saturday
observers as much as possible; balance workers rights/efficiency of one day of rest
with infringement of religion)
o Dissent (Wilson): The exceptions affected the freedom of religion and conscience
too much. Ontario later revised its act to comply with Wilson.
o majority believes act can be justified under s.1 for large retailers but not small
o does not think that a limit on freedom of religion which recognizes the freedom of
some members of the group but not members of the same group can be reasonable
and justified in a free and democratic society

Syndicat Northcrest v. Amselem (2004)


o Facts: Residents of condos putting up sukkahs on balconies of condos. Corporate
owner of development said this violates bylaws. The Jewish residents said their
religious beliefs call for the building of their own sukkahs on their own balconies
o Issue: How do you define freedom of religion?
o Decision: the purpose behind freedom of religion is personal – as long as the
individual believes this is a required practice, then you can say this is part of the
persons religion
o 2 Part test from SCC:
o Individual shows that he or she has a practice or belief having a nexus with
religion, which calls for particular line of conduct
o Sincerity of that belief – no need for expert opinions
o Dissent- Bastarache: Religion is a collective exercise. The test cannot be a
personalized approach. Binnie: You should only be able to use 2(a) as a shield to
protect against govt interference. Once you sign a contract, you can’t use freedom of
religion as argument anymore.
Freedom of Conscience, different from religion?
o Morgantaler – effectively said that conscientious beliefs that are not religiously
motivated enjoy the same protection as religious beliefs – Wilson J.
o Rodriguez – assisted suicide – Lamer J., dissent, talked about the essential secular
nature of society and therefore because of this secular nature, ensures freedom of
conscience in public institutions

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Equality

Introduction
o There is a difference between prejudicial discrimination and justified differentiation.
o Rawls: “Original position”: The laws that would arise if we were all ignorant to things
like gender and race, etc. Rawls believes this would develop a society more equal
than our own.
o Comparative concept: comparison of groups; cannot assess equality in the abstract.
o Principle of equality may be violated in 2 ways (Aristotle):
o People who are equal are treated unequally.
o People who are unequal are treated equally.
o French came up with the notion of equality in the law, that as long as people were
given equal opportunity the end result did not matter. This was the common concept
of equality up until the beginning of the 20th century. We now talk about substantive
equality (i.e. the end result does matter).
o Hughes;
 formal equality, ensures that everyone is subject to the law and that
everyone is treated in the same way
 substantive equality, consideration of the impact of government policy
and decisions on the various communities subject to them (effect
approach)
o Is equality a means to an equal end or are we only seeking a fair process?

U.S. Constitution
o U.S. constitutional law shaped by originalism – look at the intent of the framers (at the
time it was written), as opposed to ‘living tree’ in Canada.
o Method of judicial appt in U.S. is much more political than Canada’s.

14th Amendment
o First time you see an equality provision– added in 1868 – no equality provision for first
90 years of American constitution
o Civil rights protected under the 14th amendment.
o S. 1: No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
o 13th amendment prohibits slavery.
o 15th Amendment said people could not be excluded from voting based on race.

o Plessy v. Ferguson (1896): About Separate railway cars. Held: Segregation did not
necessarily imply inferiority. “Separate but equal”. It boils down to whether the
regulation is reasonable – court looks to customs of society, and, given the times,
segregation WAS reasonable according to the court
o Brown v. Board of Education (1954): About desegregating schools. Held: Separate was
never equal. Black schools were underfunded. Segregation was motivated by an
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intention to keep Blacks uneducated. It was a difficult decision because the framers of
the 14th amendment felt that segregation and equal education were compatible.
o Brown II: About a plan for desegregation. Held: Courts didn’t give a timeline for
desegregation; they just said they had to desegregate at reasonable speeds. Local
judges were not allowed to take local circumstances into account. Any claim of
discrimination from desegregation will be treated as an indiv claim and not a class
action.
o Criticisms of Brown: 1) Plaintiffs never received any actual remedy because by the
time it was decided, the students were already out of school, 2) Plan not harsh
enough (timelines not strict). Court was seeing as time to manage Southern position
on the issue, and 3) Unclear what the judgment in Brown actually meant – i.e. there
was segregation of housing in neighbourhoods anyways so in reality there would be
segregation anyways.

o After Brown court went out of its way not to rule on racist controversies for the next
10 yrs.
o Little Rock Case (1958)– Cooper: About state troopers preventing Black students from
entering White school. Held: Supreme Court called for gradualism

o In the US, race has become the capstone for all equality discussion. Set at a level
much higher - legislative provisions in US can't touch race at all (because it is a
suspect class).
o Gender in the States is not subject to as strict scrutiny. Not until 1974 did the court
accept gender as a suspect class (basis for discrimination that deserves a higher level
of scrutiny)
o Other forms of discrimination have even less strict scrutiny; however, religion and
alienability are also suspect classes now.
o Suspect classes must undergo immediate strict scrutiny in order to pass. Generally,
the standard is so high, that legislation cannot survive.
o Washington v. Davis: Aptitude test to potential police. Af Ams did much worse on test
due to segregation. Held: There must be discriminatory intent among legislators in
order to change the test. Also would apply to gender discrimination (e.g. pref to hiring
veterans where 98% are male would not be enough to show gender discrimination
without purpose).
o Burden Shifting Rule: It is up to the individual to show there was a
discriminatory purpose, then the govt must prove they would have enacted the
law anyways.
o Petitioner v. Virginia et al.: About military like program for men only. Held: There may
be benefits to separate sex ed, but Virginia didn’t demonstrate sufficiently that policy
was to advance ed opportunities and the alternative program for women was
unequal, therefore invalid)
o New York City Transit Authority (1978): About Trans auth refused to employ persons
who use meth. Held: Unreasonable to expect the Trans auth to monitor each specific
meth user so the law is valid even though it may be slightly over-inclusive.

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5 Things to Think About In Relation to Differentiation when Faced with a Rule:


1) Differentiation, 2) Benefit/Burden, 3) Ground of differentiation, 4) Rationale, and 5)
Jusitification.

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

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

o Added to the Charter in 1985 to give legislatures time to review existing laws to make
sure they didn’t violate the section.
o Guarantee of equality to occur in 4 dif ways: 1) Equal before the law, 2) equal under
the law, 3) entitled to equal protection of the law, 4) entitled to equal benefit of the
law.
o 2 Early Theories
o Hogg: Differentiation – Any law showing differentiation would automatically
violate s. 15(1), then govt would have to justify it under s. 1.
o McLachlin JA: Unreasonable Discrimination- Posited in B.C. Court of Appeal in
the Andrews case. The word discrimination means unreasonable or unjustifiable
differentiation so most of the work would be done at the s. 15(1) stage. This is a
highly selective approach with the burden of proof on the plaintiff (not the
govt).
 Haigh: But then, what use would s. 1 have here? Maybe in the event of
war or other unusual situation.

Andrews v. Law Society of B.C. (1989)(SCC!)


o  the first attempt to deal with s. 15(1). It is a historical case – not the case we use
now to assess equality (use law test)
o Facts: B.C. law society regulations made it a requirement that someone be a
Canadian Citizen before they could practice law in B.C. Andrews was qualified to
practice law (got LLB at UBC), except for the fact that he was not a Canadian Citizen.
Challenged the provision on the grounds that it violated his section 15 right to
equality under the law
o Issue: Does a law that makes it a requirement that someone be a Canadian Citizen
before they practice law, violate section 15 of the Charter?
o Decision: This law is discriminatory and so does violate section 15 of the charter.
o Ratio: Court used McIntyre’s approach; between Hogg and McLachlin
o Rejected ‘reasonableness’ element from McLachlin
o 3 steps;
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1) Is there a differentiation in the law between


individuals or groups? (almost every law does that – similar to what
Hogg proposed)
2) Does the differentiation provide one group with
benefits or burdens that the other group does not receive?
3) Is the differentiation made on the basis of
personal characteristic(s) that are explicitly enumerated in s. 15(1) or
similar or analogous to those in s. 15(1)?
o No intent is required for discrimination,
 it is the impact of the discriminatory act upon the person affected which is
decisive in considering any complaint.
o ‘Distinctions based on personal characteristics attributed to an individual solely on
the basis of association with a group will rarely escape the charge of discrimination,
while those based on an individual's merits and capacities will rarely be so classed’ -
McIntyre
o Court held law was invalid according to 15(1) in present case; not saved by s. 1.

Reference re Validity of Sections 32 and 34 of (NFLD)WCA (1989)(SCC)


o Facts: Workers injured on the job in NFLD would be compensated, but would not be
entitled to sue
o Ratio: The ‘right to sue’ is not analogous to one of the grounds in s. 15(1).
Differentiation on non-enumerated grounds are more difficult to prove.

R. v. Turpin (1989)
o Facts: In Ontario, convicted murderers argued it was unfair that they only had the
option of going before a jury (not judge alone)
o Ratio: Court held that the purpose of section 15 was to remedy or prevent
"discrimination against groups suffering social, political, and legal disadvantage in our
society.” The court said murderers were not a “discrete and insular minority” which s.
15 seeks to protect (much stricter test for analogous grounds).

Weatherall v. Canada (AG) (1993)


o Facts: claimant argued that allowing male penitentiary inmates to be frisk searched
by female guards was discriminatory, since female inmates were not subject to being
searched by male guards
o Ratio: The policy did not breach s. 15(1). LaForest said that equality does not
necessarily demand the same treatment
o Given the historical, biological and sociological differences between men and women,
equality does not demand that men and women be treated the same with regards to
strip searches
o male’s are not a discrete and insular minority – no historical prejudice or
discrimination against male – historically advantaged
o discrete and insular minority hampered them in this decision

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Trilogy
In a trilogy of equality rulings released in 1995, the consensus supporting the
Andrews Test collapsed. The Court fragmented into three different camps on
the interpretation of section 15(1)
o Miron v. Trudel, [1995]: About denial of car accident benefits to an unmarried
opposite-sex couple which constituted discrimination on the basis of marital status.
Held: Discrimination couldn’t be justified. pursuant to s. 1.
o Egan v. Canada [1995]: About denial of an old age spousal allowance to same-sex
couples which didn’t violate the Charter. Held: Sopinka broke ranks w. s. 15 majority
at the s.1 stage of analysis, leaving it to Parliament to determine when it had the
financial means to extend same-sex spousal benefits to couples. 3 Step approach
along the lines of Andrews with the additional criteria of "relevant group characteristic
approach"
o Thibaudeau v. Canada [1995]: About child support payments to be taxed, so that the
person receiving the benefit was supposed to be paying the tax. The inequality claim,
based on sex, arose b/c 98% of the payers were men and 98% receiving support were
women. Held:
o Dismissed claim on the grounds that the scheme confers a benefit on the post-divorce
“family unit”.

o McLachlin group (3)– two step approach to section 15


o McLachlin’s view in (CA) Andrews
o Gontier group – 3 step approach
o must use the relevant group approach
o L’Hureux-Dube
o impact and discriminatory effect of differentiation as opposed to the
enumerated clauses in s.15
o Sopinka – swing vote
o his view on s.1

The Law Test


Law v. Canada (1999)
o Facts: The appellant was 30 years old at the time of her husband's death. She had a
10 year marriage. They worked together operating a family business. After he died,
she tried to continue the business, but it did not do as well without her husband.
Law's request for survival benefits under the CPP was denied because she was under
the age of 35. Law is challenging this law on the grounds that it violates section
15(1).
o Issue: Does the CPP laws violate section 15(1) of the charter?
o Decision: The legislation did not violate section 15(1) of the charter. The purpose of
the legislation was to provide for those who's long term income capacity would be
affected. Young people’s long term income capacity would not be affected. The law
was therefore not discriminatory and did not violate the dignity of young people and
the appellant in particular. Nancy Law is young enough to find herself new work.

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o Ratio: Iacobucci: New equality test: 1) Is there differential treatment?, 2) Is differential


treatment based on enumerated or analogous grounds, and 3) Does the law have
purpose or effect that is discriminatory and does it violate the claimants human
dignity?
o In present case, purpose is to encourage young people back into workforce (to
promote dignity), therefore no violation.
o Iaccabucci says that the general purpose of s. 15(1) deals with dignity, which is at the
core of equality.
o 4 contextual factors;
1. Whether there is a pre-existing disadvantage (e.g. stereotyping, or vulnerable
groups, but does not limit an advantaged group from bring a s.15 claim)
2. The relationship between the ground upon which the claim is based and the nature
of the differential treatment (take into account the actual personal characteristics
of disabled persons; sometimes differential treatment is acceptable and not
discriminatory – e.g. wheelchair access ramps)
3. The ameliorative purpose or effects of the impugned law upon a more
disadvantaged person or group in society (It is more difficult to violate the dignity
of an advantaged group than a disadvantaged group), and;
4. The nature and scope of the interests affected (The more severe and localized the
consequences for an affected group, the more likely it is to be found
discriminatory).
o Haigh: Under Andrews, this would have gotten to the s. 1 stage because it failed on
the dignity test.
o Haigh: Law test has made s. 1 analysis less relevant in s. 15 cases. Additional
element of dignity and contextual factors requires a lot more analysis to be done at s.
15(1) stage.

Critiques of the Law Test


o Hogg: The contextual factors are unhelpful, unpredictable, and discretionary. By
adding the additional criteria, this adds an additional burden on the claimant to prove
that their human dignity has been violated.
o Hogg says this is like the McLachlin test in the Court of Appeal in Andrews,
dignity and reasonableness give the court a discretionary power which limits
the use of a s.1 analysis
o Stuart: Stuart says we now have this 10 part test for equality. There is no other
analytical test in any area of law that has so many parts. It is now unnecessarily and
extremely complex.

Eldridge v. B.C. (A.G.) (1997)


o Facts: Hospital didn’t provide sign language interpreters for deaf people
o Ratio: Entities can be subject to the charter not only if they are characterized as
government but also if they perform an act can be characterized as a government
act.
o Deaf people fall under enumerated group-physically disabled; Adverse effect
discrimination- ill effects for one group without intent still violates s. 15(1);
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o Is this creating a different standard then in the Law case?


o In Law, the intent was important – ‘to encourage young people to work’
o In Eldridge, intent was deemed unimportant
o NOTE: Once something is an analogous ground it is for all times an analogous ground
(Corbiere (1999))

Positive State Obligations, Comparators and Benefits

Positive Obligations
Gosselin v. Quebec
Facts: Louise Gosselin brought this action on behalf of all welfare recipients under the
age of 30 in Quebec. Welfare benefits; 2 tier – those under 30 yrs of age got fraction of
benefits paid to those over 30, unless they participated in incentive programs
Issue: Is this age based differential treatment a violation of s. 15(1)?
Ratio: Found there to be no breach of s. 15(1). Examined the issue from the perspective
of a reasonable welfare recipient who is under 30 years old – ask, would this reasonable
young welfare recipient think the program is reasonable?
• The court argued that the reasonable welfare recipient would like to receive less
welfare in exchange for incentives that would help them get a job
• Whether or not a reasonable person in circumstances similar to that of the
claimant would find that the legislation which imposes differential
treatment has the effect of demeaning the claimant’s dignity?
• In the Majority’s view, this government program enhanced their dignity; it did not
detract from it. The Majority said the purpose of the program was to get unworking
young people back on their feet
• Haigh says: “reasonableness” does not need to be imbued in s.15(1) – that is what
we have a sec 1 analysis for
• because of the contextual factors raised in the Law Test, reasonableness enters the s.
15(1) analysis – this makes it increasingly like an Oakes analysis creeping into this
case
• idea of reasonableness is now express in s.15(1) analysis. Rejected in Andrews;
implied in Law via the dignity concept.

Canadian Foundation Case – Follows Gosselin


Facts: Challenge to s. 43 of the Criminal Code which justifies the reasonable use of force
in disciplining children.
Ratio: Followed Gosselin. The key Question the court asks is: Whether or not a RP in
circumstances similar to that of the Claimant, would find that the legislation which
imposes differential treatment has the effect of demeaning that persons dignity.
• the “reasonable school aged child” who also likes to be hit occasionally for the
good of their own development – ridiculous!

Comparators
Hodge v. Canada (2004)

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Facts: Common law spouses separated before one of them died. If married but
separated, entitled to CPP benefit, but if common law and separated, not entitled to
benefits. If married and divorced not entitled to CPP benefits
Ratio: Claimaints wanted to use “married and separated” as the comparator group. The
correctness of a comparator group chosen by a claimant is a matter of law for the court
to determine. In this case, court said comparator group should be divorced spouses, so
no benefits and no discrimination.
 “while it is up to the claimant to make the initial choice of who she wishes to
be compared with, it is the duty of the court to ensure that the correct choice has
been made.”

Benefits
Auton v. B.C. (A.G.) (2004)
Facts: Autistic children refused funding by BC government.
Ratio: Not against Charter because it was concerned with a benefit that law has not
conferred (treatment for autism). Distinguished from Eldridge because Eldridge was
concerned with unequal access to a benefit the law did confer (core vs non-core
funding).
o The court defers to legislative policy on this matter and allows the province to
determine what will and will not be included.
o The court also looks to see if the legislative strict scheme is discriminatory
(Adverse effects discrimination). The scheme splits the core and non-core funding
groups. By the very features built into the system, the exclusion of non-core
services cannot be considered discriminatory, but rather it’s an anticipated feature
of the scheme.

Some Practical Measures of Equality that Come Up


o If you make differentiations that are not purely fiscal and they affect different groups
differently from one another, then you’ll have a s. 15(1) violation
o The court has more difficulty with age as a ground for discrimination than it does with
other grounds (even analogous and not enumerated grounds).
o Racial discrimination is almost always found to violate the constitution in the U.S.,
then sex. In Canada too, the grounds are not all equal. e.g. Age is very rarely
considered a Charter violation.
o The court has moved away from Andrews and towards McLachlin’s view of the s.
15(1) analysis, because she moved from the Court of Appeal to the Supreme Court of
Canada.

Freedom of Expression (s.2(b))


Rationale for Freedom of Expression
o Supreme Court of Canada has identified 3 primary rationales for the freedom of
expression provision (Dolphin Delivery, Ford, and Irwin Toy):
1. The search for truth /Marketplace of ideas
2. Part of our political process/ Democratic government
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3. Self Realization/ Actualization


o These ideas all posit that freedom of expression is important. The first two are
process oriented, whereas the third one is an end as opposed to a means.
o Equality and expression are the areas where the most clashes of rights
occur.

Marketplace of Ideas, democratic government


o (U.S. jurisprudence) Oliver Wendell Holmes (in Abrams) in dissent wrote that he
believed the person had the ultimate right to publish leaflets (WWI to undermine
war effort) in order to get his ideas into the marketplace. More relevant vibrant
human societies come out of the notion of the marketplace of ideas.
o This idea was adopted in Dolphin Delivery

Alberta Press Case (pre-Charter)


Facts: Alberta government required the press to publish social credit articles. This was
challenged by certain members of the press.
Ratio: free public discussion is part of an aspect of Canadian citizenship and this
legislation wipes away rights that people have as citizens. The Supreme Court of Canada
relied on the preamble “similar to the U.K.” Since it was pre-constitution, the way they
said it was invalid was by saying that this was not under the prov head of power

Individual Self-fulfillment and human flourishing


o In order to realize your potential, your mind must be free and you must be able to act
in ways that are true to your own character. Suppressing opinion or beliefs of all types
would take away from your ability to realize your whole potential.
o McLachlin says we all should have the right to form our own beliefs and opinions.
Freedom of expression will allow us to reach this fully.

Scope of Freedom of Expression


Dolphin Delivery
o Court said 2ndary picketing was a form of expression, in that expression is any kind of
activity that communicates a message short of threats of violence or acts of violence
or other unlawful conduct.

R. v. Keegstra (1996)(SCC)
Facts: Alberta high school teacher who required students to parrot his anti-semitic
views.
Ratio: Threats of violence are protected under freedom of expression.

Ford v. Quebec (AG)


Facts: Quebec sign law case (French-only)
Ratio: Expression means the ability to use the language of your choice.
o No distinguishing between the form and the content.
o Commercial expression is equally valid and equally protected.

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o These cases are basically saying that most of the analysis is, therefore,
done in s. 1.

Section 2(b) Test


Irwin Toy v. Quebec
Facts: Quebec government introduces ban on advertising directing at children under 12.
Irwin Toy challenges this ban on the grounds that it violates s.2b of the charter.
Decision: The legislation does infringe on 2b of the charter but is a reasonable limit in
accordance with section 1.
Ratio: Court created a 2 step analysis to decided if s. 2(b) was breached:
1. Is the activity a type of conduct protected? (Content- Could deal with the
content if the activity attempts to convey a meaning, as opposed to a purely
physical activity; but it is still important to look at the context for every act)
(Form- The form must be one that conveys meaning short of actual violence)
2. Does government action restrict freedom of expression? (Purpose) or (Effect)
 Plaintiff has the onus to show that there is an effect on their freedom

Commercial Speech and Freedom of Expression


o Freedom of expression includes the right of the speaker and the listener
o Advertising, by nature, is one of those things from which the listener can benefit
o The competence of the judiciary as an institution to decide on these matters – plays
out in the majority versus the dissent in RJR – does the court have the expertise to
decide on commercial advertising? Why would the court be competent to asses how
to change human behaviour?
o On one level, it seems that the government should be given more leeway in dealing
with social problems (i.e. the government protecting vulnerable groups like the
children in Irwin Toy).

RJR MacDonald Inc. v. Canada (Attorney General)(1995)


Facts: Tobacco companies challenge government regulations restricting cigarette
advertising. Also challenging the government forcing them to place warnings on
cigarette packages - Government says all cigarette manufacturers put a certain warning
on the packages and the warning would not say who the warning comes from. There is
no ban on cigarettes or tobacco which they could have done, but they are banning the
advertising of it to try and reduce consumption.

Ratio: Applies Oakes Test


o Objective: reducing tobacco risks by restricting ads and making warning mandatory –
ok
o Rational connection: legislation attempting to change human behavior – causal
connection by reason or logic – ok
o Minimal impairment: smoking is legal – why not allow informational ads? A total ban
on all ads, including informational ads, does not use the least dramatic mean to
impair
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o Therefore --- the Act is unconstitutional


 A ban that targets new smokers or prohibits lifestyle ads might have
possibly been acceptable. But, smoking IS legal, and, thus, the outright ban
against all ads is overly broad – therefore, the court draws a distinction between
informational ads and lifestyle ads which portray smoking in a positive light.
o Unattributed warnings were also held to not breach s.2(b) because obvious that
warning comes from government - not putting words in mouth of manufacturer
o Strong Dissent (LaForest, 4/9):
o Believes restrictions on advertising constituted reasonable limit under section 1.
o They see all advertising as being the same - how can you distinguish between lifestyle
and informational advertising - they are all essentially promotional!!!
o Commercial speech – not core expression - Believed that since speech only motivated
by profit they are allowed less deference. Majority held no distinction between profit
motivated and other speech.
 While majority said you cannot treat commercial speech differently, the
section 1 test for areas like speech has adopted the minority’s view – you may
have a lower standard in the area of social regulation that you will in criminal
regulation

Van Niagra v. Town of Oakville


Facts: Ban on billboard advertising and third party advertising
Ratio: SCC adopted dissent from RJR arguing that the third party advertising ban could
not be justified because it was overbroad, but the billboard ban was upheld because they
were banning overly large billboards that were unaesthetic.

Slaight Communication Inc v. Davidson


Facts: Labour arbitration agreement where employer refused to write recommendation
letter which was required by arbitrator
Ratio: held that an individual has a right to silence

Lavingne v. Ontario Public Service Employees


Facts: Individual forced to contribute union dues. Did not like unions and idea money
goes to support union activities.
Ratio: Lavingne's right to silence not infringed because message will not be attributed to
him it will be attributed to the union

Hate Speech
Rationale
o Need to prevent the dissemination of hate propaganda without unduly infringing the
freedom of expression
o Hate speech in the West is less focused - not on any particular group, but on anyone
"not like us"
o Not everybody receives hate speech in the same way - different levels of response.
e.g. not all Jews offended by Keegstra equally
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o Laws that deal with hate speech tend to deal with extremes - BUT other things occur
within the law that are equally abhorrent (example of prof. singling out a black
student and telling him he didn't deserve to be there, but was a beneficiary of
affirmative action)
o K. Mahoney, "Hate Speech: Affirmation or Contradiction of Freedom of Expression":
Hate speech is not merely offensive it constitutes a serious attack on psychological
and emotional health.
o A.A. Bororvoy, "How Not to Fight Racial Hatred": Freedom of speech is undermined
not only by convictions that are ultimately registered, but also by the prosecutions
that are initially threatened. In order to avoid the possibility of prosecution, people
might be impelled to ensure that their speech steered as far as possible from the
prohibited zone.

R. v. Keegstra
Facts: Keegstra teaching and encouraging hate of Jews in central Alberta school for ten
years. Charged under s. 319(2) of the criminal code for spreading hateful material

Ratio: Actual violence is not considered "expression", but threats of violence may be.
o Dickson, “all forms of speech are protected, no matter how repugnant, under s.2(b)”
o Hate propaganda should not be excluded from Charter review by the judicial
exception regarding violent forms of expression.
o Although his rights were violated, this was justified under s.1.
o Very little expressive activity that is NOT protected under 2(b) - s.1 will do virtually all
the work in most cases
o s. 1 analysis:
o Purpose of ban: to promote the value of equality b/c hate propaganda effectively
reinforces the negative attitudes toward minorities which act as barriers to achievement
of equality
o The harm caused by expression promoting hatred of identifiable groups is a
sufficiently pressing concern to warrant overriding right

• Dissent: McLachlin argued that the legislation does not meet any part of the second
step of the Oakes test;
• 1) there is no connection between the criminalization and the objective of reduction.
2) s.319 does not minimally impair on the right to free speech because it might
include speech that is not hateful and 3) exposing individuals to criminal prosecution
is not necessary

Taylor v. Canadian Human Rights Commission


Facts: Human Rights Commission held that it was a violation of human rights to run an
anti-semitic message service.
Ratio: Majority said that this constituted a reasonable limit of freedom of expression
Dissent: McLachlin, how can you limit private telephone conversations

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Ross v. New Brunswick School District No. 15


Facts: Human Rights commission concluded that Ross should not be allowed to teach
anymore because he should not have influence on young impressionable children (after
he had published anti-semitic literature in his free time). Ross was able to retain an
administrative job so long as he refrained from publishing further anti-semitic material.
Ratio: the order to remove Ross from his teaching job was a reasonable limit on 2(b), but
the permanent ban on publishing this material was not upheld.

Aboriginal Rights
1. Introduction
• Historical Background
o We’ve had a Charter since 1982, but are we really better off as a country
(e.g. less homeless, better access to social goods, cleaner air)? Similarly, are
Aboriginals really better off from s. 35(1) of the Constitution?
 Compared to the general population, Aboriginal incomes are still at the
bottom of Canadian society, educationwise they are worse off,
healthwise they are worth off. They are not any better off on a number
of indicators than they were before the Constitution.
 However, there are definitely good things, like recognition of land
rights for Aboriginals and giving them a say.
o Recent historical analysis of Aboriginals have painted a dif picture than
originally thought. It was initially thought that the whole history of European
contact with the Aboriginals was all bad, but recent scholars have shown that
it wasn’t always so one-sided and exploitative. Early on, there was more of
an understanding of mutual respect and a certain level of harmony existed
between the Europeans and Aboriginals. The British really wanted the
Aboriginals on their side as allies.
 Initially, the treaties recognized one equal party (the British)
contracting with another equal party (the Aboriginals).
o But then, around 1867, the British no longer needed the Aboriginals as allies,
so a paternalistic attitude started to take hold. Reserves, European
education, etc all started and continued right up until 1980.
 Haigh thinks that the Indian Act is a good example of the paternalistic
attitude. It treats Aboriginals like chattel (he compares it to a gun
registry).
o So despite the recognition that we need to do better and some of the legal
changes, until you change what was already in place, it is difficult to say
things have changed for Aboriginals too drastically.

2. Guerin – the beginning of modern Aboriginal rights in Canada


• Took place before the 1982 Constitution (even though the decision came out in 1984).

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Facts: The Indian Act said that a band must surrender its land to the Crown in order for
the Crown to lease it to the public. The Muscam Band wanted the land to be leased out
and a golf course built. They surrendered the land to the Crown and trusted the Crown to
negotiate the land for them (they had to out of the Act). The agent for the Crown
negotiated in bad faith (since he couldn’t find a lessee to lease the land to at a good
price) and ended up leasing at a much lower price per acre than the Aboriginals wanted,
but didn’t tell them. The agent then signed the lease at a lower rate and the Muscam
band was not told what was going on. They didn’t realize they were being ripped off until
much later.

Dickson explains the nature of the relationship between the Crown and the
Aboriginals and its fiduciary duty:
• Sui generis nature of the interest
o Sources of Aboriginal title: Royal Proclamation and treaties. It all stems from
the fact that the Aboriginals were here first and the settlers just took away
some of their rights that they shouldn’t have.
o Language and legal terminology has forced us into boxes (i.e. what property
is, what possession is, etc), but sometimes you must remove yourself from
this. This is a unique situation where both common law and statutory
concepts don’t explain the situation in full detail. Civil rights and property
rights are generally understood do not fully explain the picture here.
o The situation is unique.
o Alludes to St. Catherine’s Mill case and other early jurisprudence (where in a
lot of the old cases, the rights were looked at through the boxes, but we
should change our outlook)
o In Conolly v. Wolrich, was the first case where the judge recognized the dif
between Aboriginal rights and common law rights. This is the starting point
for Dickson.
• The Crown has a fiduciary obligation to the Aboriginal population
o (Fiduciary means that you owe it to another to act in their best interest, with
loyalty and in a certain way – e.g. lawyer-client privilege. It’s the highest
obligation that civil obligation has invented)
o A fiduciary aspect can arise by statute, agreement, unilateral undertaking.
o The Aboriginal-Crown relationship arises by virtue of the Indian Act and by
historical factors (they were here first, the Crown has taken on role of acting
as parent to Aboriginals)
o Part of the duty in this particular case, it is the honour of the Crown that is at
stake.
 Even if the Crown’s original price was too unreasonably high, you don’t
just go and negotiate a dif rate. You go back and say that you can’t get
a deal at that rate and get their consent to go for a lower price. You
can’t act unilaterally without having their best interests at
heart.
o The damages for a breach of a fiduciary duty are much greater than they
otherwise would have been.
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Ratio: This case really gets the idea of the Crown owing a fiduciary duty to the
Aboriginals off the ground.

Notes: One of the dangers of saying that there’s this fiduciary duty, is that it
perpetuates the idea that the Crown has taken on a paternalistic role.
• BUT, Haigh thinks Dickson would acknowledge this, but argue that he only wants to
take the stuff from fiduciary duties that make sense in this instance. Also, a fiduciary
relationship, does not necessarily indicate a paternalistic relationship. Sometimes the
person owing the fiduciary is less powerful than the beneficiary (like in the cases of
corporations). In this case, the fiduciary duty is not meant to keep the Aboriginals
down, always at the mercy of the Crown.

3. The Constitutionalization of Aboriginal Rights


Sources of Aboriginal land/other rights:
o Royal Proclamation
 Contained some ideas that lay dormant for a while, but has been
recognized for its importance within the last 20 yrs.
 Things like the fact that lands possessed by Aboriginals were reserved
for their exclusive use unless surrendered to the Crown.
o Common law
 Aboriginal title has been seen as an independent right which predates
the Royal Proclamation
 Recognizes that Aboriginal title is not quite a personal or statutory
right, but something sui generis.
 Some of the common law relationships that developed, give rise to
fiduciary obligations.
o Treaties
 Recognized as important sources.
 Interpretation of treaties has changed over yrs.
 Early on, courts read treaties in favourable terms for the settlers
(originally they were even non-judiciable). Now, it’s been recognized
that treaties were binding agreements between equals. Courts are now
sensitive to the context of the treaty (maybe not understood or not
translated…)
o S. 35(1) of the 1982 Constitution Act

• Aboriginals are divided into 3 main groups, Indians (as described in the Indian Act),
the Inuit, and the Metis.

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R. v. Sparrow

Facts: Involved fishing rights for the Muskam band. Sparrow charged for violating the
Fisheries Act for using a net that was bigger than allowed. His argument was that he had
an existing Aboriginal right that stands outside the legislation to fish with that drift net.
He said the legislation did not apply to him (i.e. was invalid for him).

Issues: Does s. 35(1) provide constitutional protection similar to the Charter?


Can s. 35(1) be used to scrutinize legislation and strike it down?

3 Specific Issues in this case:


1) What is the meaning of “existing” Aboriginal rights?
2) What is the content and scope of native right to fish?
3) What is the meaning of “recognized and affirmed” in s. 35(1)?

Court answered these 3 questions and then put forth a justification test
(quasi-Oakes test) for the violation of s. 35(1) (the court basically created a “mini-
Charter” here):
• In answer to sub-issue 1: “Existing” was something that was in place in April of
1982. Therefore, it cannot include rights that were extinguished prior to 1982.
Anything that is extinguished will forever be extinguished. In order for the right to
have been validly extinguished, it must have been done openly (and really
extinguished, not just regulated).
• In answer to sub-issue 2: The court looked at what the band had been doing for a
long time and recognized that salmon is an important part of subsistence and held a
ceremonies place. The court also held that the band relied on this right from when the
band was created (i.e. continuous). The Fisheries Act does not extinguish the right. “A
right control is not a right removed.” It’s necessary to interpret the rights in favour of
Aboriginals. The right will not be seen to have been extinguished unless the Crown
was explicit about extinguishing this right. BUT, the court did not get into the
commercial use of fish.
• In answer to sub-issue 3: You should interpret in favour of the Aboriginals and
recognize that a fiduciary duty exists. S. 35(1) is a constitutionally protected right, but
there is also the possibility of governments to justify the infringement.

• The fed government must prove a valid legislative objective for infringement (e.g.
safety legislation, conservation legislation, and other purposes that are substantial
and compelling) and that they’ve respected the Crown’s fiduciary obligations (i.e. 1)
proving that it has infringed the right as little as possible in order to obtain the
legislative objective; giving priority to the Aboriginals over others with respect to the
resource, 2) may mean paying compensation, and 3) consultation with the Aboriginal
people around the infringement- *HAS BECOME VERY IMPORTANT)

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R. v. Van der Peet (1996)


• Aboriginal woman was caught and charged with catching and trying to sell
commercially 10 fish illegally. She claimed that she had an Aboriginal right to sell the
fish. This case is dif from the Sparrow case because of the commercial aspect.
• The new test, the ‘modified Sparrow test’, gives the word existing a new meaning,
“an element of a practice, custom or tradition that is integral to the distinctive culture
of Aboriginal peoples.” So this is saying that the practice in question must be central
to the culture and something that should have been developed before contact
with European settlers. It cannot have developed solely as a response to
European influence.
• In the present case, the court held that there was no market for fish before European
contact. I.e. if there was a market for fish, it only happened after Europeans came.
Therefore, her conviction stands.
o But how can you say what is central to a culture? And what is incidental?
o Why does the practice have to have come about after contact with the
Europeans?
o Haigh thinks this is very artificial and cheapens culture and it makes it
dependant on evidence.
• The reason Haigh thinks this case made it up to the Supreme Court of Canada was
because of two other major cases that made it up to the Supreme Court of Canada,
Gladstone and NTC, where it was held that legislation could be enacted to limit
Aboriginal rights in the case where there is no inherent limit (i.e. you can in theory
sell to an infinite number of people) (That is, it is a justifiable infringement; Sparrow)

The new 5 part test based on Sparrow and Van der Peet
1) Practice must be pre-existing and central – Aboriginals’ burden
2) Not extinguished – Aboriginals’ burden
3) Must be infringed by government act – Aboriginals’ burden
4) Government must show adequate justification - Government’s burden
5) Go beyond Crown’s reasonable discretion as fiduciary to show Aboriginal
community has “priority” in enjoyment of resources traditionally utilized. – Government’s
burden

You end up getting imbalances between bands that have been well documented and
well studied vs. those that haven’t.

R. v. Powley (2003)
• Discussed the rights of Metis
• There was an acknowledgement that the Metis arose out of contact with the
Europeans and Aboriginals.
• The test was modified such that you don’t have to show that there was a custom,
practice or tradition before contact, but rather, pre-control by Europeans.
• The modified 6 step Van der Peet test now asks:
1) What is the right they are claiming?
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2) Is the claimant part of the group claiming the right?


Pre-European contact in the case of
Aboriginals?
3) Aboriginals must show the right existed
Pre-European control in the case of Metis?
4) Aboriginals must show the right has been continuously practiced by Aboriginals
until now.
5) The Aboriginals must show the right was infringed upon or extinguished.
6) The government must show some form of justification for an infringement.

4. Treaty Rights
R. v. Marshall #1 (1999)
• The Marshall (1999) said that Aboriginals were given a treaty right to sell the fish
commercially but only in order to maintain a moderate livelihood. Marshall #1 allowed
for selling eel, but Marshall #2 interpreted the treaty to mean that it could be
anything to maintain a moderate livelihood and allowed them to fish and sell lobster.

R. v. Marshall #3 (2005)
• Marshall charged with cutting timber without proper authorization.
• The Crown found that the activity of harvesting and trading of commodities that were
harvested or traded at the time in a modern way. But, logging is not a logical
evolution, whereas eel fishing is. Therefore, the court held that in this case logging
was not allowed.

5. Duty to Consult – Honour of the Crown


Haida Nation v. B.C. (2004)
• Decision involved Aboriginals who had a land claim to a specific area and surrounding
waters and the prov government was authorizing forestry to take place on the land
that the Aboriginals were claiming; i.e. before the decision comes out from the court;
The Supreme Court of Canada held that the government cannot just go ahead before
the land claim was established in court. They must consult with the Aboriginals first).
The degree of consultation depends on the strength of the claim and the
severity of the resource, however it must be meaningful consultation.
• Therefore the building of the highway as it were was invalid.

Taku River Tlingit First Nation v. B.C. (2004)


• Same idea as the Haida Nation case.

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