CANDIAN CON LAW OUTLINE

Part I: Basic Concepts

Sources and Nature of the Constitution
What is “Constitutional Law”?
• Definition: Law prescribing the exercise of power by the organs of the state.
• Legislative Branch (makes laws)
• Executive Branch (implement laws)
• Judicial branch (adjudicates disputes)
How does a Bill get enacted into LAW?
1. Executive branch proposes a Bill (Prime minister Trudeau and Cabinet)
2. They Present it to Parliament and goes through the reading, every single person in parliament has
to go through the bill.
3. Goes to committee and they edit and send it back for second reading.
4. Goes back to committee for more changes.
5. Third reading goes into vote.
6. Over 50% to pass bill
7. Passes the House of Representatives and then goes to the senate
8. 1st reading committee, 2nd reading committee and 3rd reading.
9. Governor General -> Transforms into law.
LEGISTLATURE -> PROVINCE
 Members of legislative assembly.
PARLIAMENT -> FEDERAL
 Members of Parliament
Definition
 Constitutional law is the law prescribing the exercise of power by the organs of a State. It
explains which organs can exercise legislative powers (make new laws), executive power
(implement new laws) and judicial laws (adjudicating disputes) and what those limitations
are. Concerns- Allocation of government powers (legislative, executive, judicial) among
central and regional authorities is its basic concern. The protection of civil liberties is also
its concern. A constitution has been described as a “mirror reflecting the national soul”.
“Constitutionalism”
 “Government is limited by law” A word used to convey that idea that government is ruled
by law. The word “rule of law” is used to convey the same idea. This describes a society
in which government officials must act in accordance with the law. Judicial independence
is needed. The rule of law applies to Parliament and Legislatures of the Province. Laws in
breach of the constitution may be challenged in court.
 In Practice it means: entrenchment, remedies must be available when governments act
outside the law, independence of judiciary lawyers, civil liberties guaranteed by the
constitution must be respected by governments, constitutional interpretation becomes
important.

Sources of Constitutional Law in Canada

Constitutional Act 1867
 In Canada there is no single constitutional document like the US.
 Formerly known as The British North American Act 1867(changed in 82’ to
Constitutional Act 1867) is similar.
 BNA created a new Dominion of Canada by uniting three colonies of British North
America and by providing the frame work for the admission of all other British North
American colonies.
  The BNA act established the rules of federalism but did not break from its colonial past.
 GAPS:
o No general amending clause: this meant that amendments came from Britain.
o Office of Governor General – office not create by the act
o System of responsible (cabinet) government is not included in the act (no mention of PM)
o No creation of Supreme Court: gave it authority but did not actually establish it.
o No bill of Rights
Constitutional Act 1982
1982: Partition of the Constitution: Canada asks for and receives full sovereignty from the United
Kingdom. Changed name of the BNA act to the Constitutional Act 1867 and attempted to define the
phrase constitution of Canada.
3 Important repairs were made in 1982.
1) They were a domestic amending formula was adopted 2) the authority over Canada of the
UK Parliament was terminated & 3) the Charter of Rights was adopted.
 Still very hard to comprehend
 Canada Act 1982 (Section B) contains the Canadian Charter of Rights and Freedoms
(contains Charter and amending formula)
o 1) the name of the BNA act is changed to the Constitutional Act 1867.
o 2) for the first time a defining of the phrase “Constitution of Canada’

The Constitution of Canada

S52 (1) The Constitution of Canada includes: The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.
S52 (2) The Constitution of Canada includes: (Definition of the Constitution of Canada)
a) The Canada Act 1982, including this Act;
b) the Acts and orders referred to in the schedule; and
c) any amendments to any Act or order referred to in paragraph (a) or (b)


The Charter of Rights is part of the Constitution of Canada because it is Part 1 of the CA
act 1982. Health Services Bargaining (2007) where court held that that a statue was
invalid as a breach of freedom of association. This makes collective agreement
negotiations between a union and an employer now superior to a statue.
 “Includes” in s 52(2) indicates that the word is not exhaustive. This was supported by SCC
in the New Brunswick Broadcasting Co. v Nova Scotia (1993). The held the unwritten
doctrine parliamentary privilege should be included in the s52(2) definition even though no
mention of it. The court’s decision means the definition can be expanded.
o Hogg believes that it is best to leave the courts decisions to unwritten doctrines and
written doctrines as exhaustive.
o The new schedule omits the pre 1867 instruments which governed Ont and Qbe and
The Royal Proclamation of 1763, the Quebec Act 1774, the Constitutional Act of
1791 and the Union Act of 1840.
 The Supremacy Clause is 52(1)-This makes it the supreme law of the country.
 The Entrenchment clause- 52(3)- This entrenched the Constitutions Act 1982 and makes it
only amendable by the proscribed procedure.
 Imperial statues- Hogg 1.5
Constitution of Canada includes: “Case Law”
 Case Law Courts have the task of interpreting the Constitution Acts and other constitutional
statutes
 The case law that interprets that Constitution Acts and other constitutional statutes is also
constitutional law
 The Supreme Court finds “unwritten” principles that “underlie” the constitutional texts; for
example:
o Re Remuneration of Judges (1997) – the Supreme Court found an unwritten
principle of judicial independence in the Constitution of Canada that could have the
effect of invalidating statutes that reduced judge’s salaries
o Secession Reference (1998) – the Supreme Court invoked unwritten principles of
democracy, federalism, constitutionalism and the protection of minorities to hold
that, if a province were to decide in a referendum that it wanted to secede from
Canada, the federal government and the other provinces would come under a legal
duty to enter into negotiations to accomplish the secession
Issue: does the federal constitution give the power of secession to its provinces or
states?
 Secession Reference (1998) – a reference by the federal government to the
SCC in which the SCC was asked whether Quebec could secede unilaterally
from Canada
 Unilateral secession not permitted under the Constitution of Canada; and
 Unilateral secession not permitted under international law.
 A government, even one mandated by a popular majority in a referendum,
must still obey the rules of the Constitution
 Secession would require an amendment to the Constitution of Canada (SCC
did not say which amending procedure but that the federal government and
provinces would need to be involved); so negotiation would be required, not
unilateral action

Constitution of Canada includes: “Parliamentary Privileges”

 The federal Houses of Parliament and the provincial legislative assemblies possess a set
of powers and privileges that are “necessary to their capacity to function as legislative
bodies.” This was supported by the SCC in New Brunswick Broadcasting Co. v
Nova Scotia (1993) where “strangers” were excluded from the Nova Scotia legislative
assembly.
 Parliamentary Privileges- regarded as a branch of the common law as it is not
contained in any statute or other written instrument and it is the courts who determine its
existence and extent.
 In New Brunswick Broadcasting Co. v. Nova Scotia (1993), the Supreme Court of
Canada (SCC) identified two key peculiar characteristics of parliamentary privilege:
1. Inherent to Legislative Bodies: Parliamentary privilege exists as an essential
component of the Constitution. It is not granted by statutes but inherent to
legislative bodies, ensuring their independence and proper functioning.
2. Exempt from Charter Scrutiny (in some cases) The SCC ruled that certain
parliamentary privileges are beyond the reach of the Canadian Charter of
Rights and Freedoms. This means that legislatures can exercise privileges (like
controlling access to their proceedings) without being subject to Charter-based
 challenges, such as claims of violating freedom of the press.
 Is different from royal prerogatives and other common law powers of government.
 No difference between in constitutional status between legislative privileged and inherit
privileged-both are exempt from the Charter.

Parliamentary Privileges: also includes freedom of speech in debate (MPs and Senators can
speak freely in debates without fear of legal consequences (e.g., defamation lawsuits), including
from legal proceedings for things said in debates. It also includes right of members of parliament
or legislative assemblies not to testify in court proceedings while Parliament or the Legislature
is in Session.

Constitution of Canada includes: “Prerogative” (Powers of the Crown)

 The royal prerogative consists of the powers and privileges accorded by the common
law to the Crown. The prerogative is a branch of the common law, because it is the
decision of the courts which have determined its existence and extent. Case of
Proclamations (1611).
 They are powers and privileges that are unique to the Crown.
 Only applies to executive governmental powers (so no prerogative power to legislate,
which can only be done by the legislature; and no prerogative power to administer justice,
which can only be done by the courts)
 Prerogative powers can be abolished or limited by statute and they are subject to review
by the courts
 Some examples remain i.e. the declaring of war and the making of treaties
 Note that most governmental power in Canada is exercised under statutory power (not
prerogative power)

Conventions (Traditions and part of the constitution)

 Definition: Conventions are rules of the constitution that are not enforced by the law
courts. Because they are not enforced by the law courts, they are best regarded as non-
legal rules, but because they regulate the working of the constitution, they are important.
They prescribe the way in which legal powers shall be exercised. More of binding then
enforcement.
 Conventions prescribe the way in which legal powers shall be exercised
 Example: The Constitution Act, 1867 confers upon the Queen the power to withhold
royal assent from a bill that has been enacted by the two Houses of Parliament but a
convention stipulates that the royal assent shall never be withheld (an aspect of
“responsible government”)
 If a convention is breached, there is no breach of the law (because conventions are not
enforced by the courts) and no remedy is available
 See Patriation Reference (1981) – court recognized a convention Why do governments
obey conventions if not enforceable? What happens if conventions start to be ignored?

Main Conventions
I. the governor general only acts on the advice of the Privy Council
II. this Privy Council is not the full Council described in s13 of the Constitution Act
1867 but rather a smaller subset, the Cabinet
III. the cabinet chosen by the Prime Minister, and the number of ministers is up to
him/her
 IV. the primes minster, although no where mentioned in the Constitution Act 1867, is the
head of government
V. the prime minster and his/her cabinet must have the support of a majority of members
in the house of commons
VI. the prime minster and his/her cabinet must have seats in the House of Commons or
Senate
VII. House of Commons support for Prime Minsters and cabinets is rallied by means of
Political parties and
VIII. A failure to command and support of a majority of members in the House of
Commons results in the government stepping down and usually the calling of a
general election.
IX. Canada is a whole nation, all of Canada has to agree if one province wants to leave.
Ex: Quebec Secession.

Amending Procedures: Founded Constitutional Act 1982

 The BNA Act had no amending provisions – why - because Canada was still a British
dominion, meaning it relied on the United Kingdom for constitutional changes.
1. Any amendment to the BNA Act had to be passed as a law by the UK
Parliament in London.
2. This remained the case until the Constitution Act, 1982, which established a
domestic amending formula, allowing Canada to amend its own constitution
without British approval.
 Making changes to the constitution, adding something new, taking something out.
 Changing the country as a whole.
 Country is created by way of a constitution.
 Have power to influence the outcome of city, province, country.
 Most commonly used amending procedure.
 Note: the amending procedures only apply to the “Constitution of Canada” as defined
in s. 52(2) of the Constitution Act, 1982
There are five different amending procedures set out in Part V of the Constitution Act, 1982:
1. A general amending procedure (s38) for amendments not otherwise provided for(as well as for
amendments listed in s42)requiring the
assents of the federal Parliament and 2/3 of the provinces representing 50 per cent of the
population;
2. A Unanimity procedure (s41), for five defined kinds of amendments, requiring the assents of
the federal Parliament and all of the
provinces,
3. A some but not all provinces procedure(s43), for amendment of provisions and only those
provinces affected;
4. The federal Parliament alone (s44) has power to amend provisions relating to the federal
executive and House of Parliament ;and
5. Each Provincial Legislature alone (s45) has power to amend “the constitution of the province”.

Section. 38: “General Amending Procedures” aka “7/50 Rule”: An amendment to the
constitution of Canada may be made by proclamation issued by the governor general under
the great seal of Canada where so authorized by:
 Resolution of a senate and house of commons,
  Resolutions of the legislative assemblies of at least 2/3rds of the provinces that
have in the aggregate according to the latest general census at least 50% of all the
population of all provinces.
 The “7/50 Formula” You need 7/10 provinces to agree and 50% of Canada’s
population. Section 38 and Section 42 are interrelated. Section 42 states when
Section 38 can be used. So long as section 42 approves. YOU NEED BOTH 7
provinces that represent 50% of the population.
 The 50 per cent population requirement means that the agreeing provinces must
include at least one of Ontario or Quebec.
 No single province has a constitutionally-entrenched veto over amendments.
 Use for: residual, when other procedures do not apply as well as those listed in s42.
 Once authority for the amendment is provided, the formal act of amendment is
accomplished by proclamation by the Governor General
39(1): must wait 1 year to proclaim (unless all have consented/dissented) (allows time to
consider)
39(2): expires in 3 years if required consent not achieved
 If you are going to remove or add a senator, you need to use this rule.
o Section 38(3) – Opting Out applies to “any amendt that derogates from the
legislative powers, proprietary rights or any other rights or privileges of the
legislature or government of a province”

o Province can pass resolution of dissent = Amendment will not take effect in that
province

o Must be done prior to proclamation

o 38(4): resolution of dissent can be revoked at any time, but 46(2): resolution of
assent cannot be revoked after proclamation

o s40 compensates provs for opting out, for any transfer of Provl legislative powers
to Fedl govt (in relation to education or cultural matters only).
 Regional Veto Statute: no amendt can be authorized unless it has first been considered
by a majority of the provinces that includes: Ont, Que, BC, 2+ Atlantic Provs rep min
50% pop, 2+ Prairie Provs rep min 50% pop. Applies to amendments that: do not allow
for opting out, and must otherwise follow the general 7/50 procedure. Does not apply to :
s41(unanimity) or s43 (some but not all) amendments.

Section 42:
Section 42 lists matters requiring the General Amending Procedure, including:
1. Changes to the Senate – e.g., its powers, method of selection, or provincial
representation.
2. Establishing new provincial representation in the House of Commons beyond current
constitutional provisions.

 The general amending procedure in s. 38 (the “7/50 Formula”) applies to any

amendments not covered by more specific procedures in ss. 41, 43, 44 and 45.
 S. 42(1) requires that the general amending procedure also be used to six defined
classes of amendments to the Constitution of Canada:
 o The principle of proportionate representation of the provinces in the House of
Commons prescribed by the Constitution of Canada; in the HOC (lower house
of parliament, each seat represents a portion of the population)
o The powers of the Senate and the methods for selecting Senators;
o The number of members by which a province is entitled to be represented in
the Senate and the residence qualifications of Senators;
o Subject to paragraph 41(d), the Supreme Court of Canada;
o The extension of existing provinces into the territories; and
o Notwithstanding any other law or practice, the establishment of new
provinces.
 S. 42(2) provides that ss. 38(2) and (4) do not apply in respect of amendments in
relation to matters referred to in subsection (1) [i.e. no opt-out].

Requires resolutions to be passed by: Senate + HofC + 7 of the 10 Provinces which have in
total at least 50% of the population of Canada.

CAN BE USED IN 6 OCCASIONS:

The following matters are reserved to the S. 38 procedure, by virtue of s. 42:
(a) the principle of proportionate representation of the provinces in the House of Commons
prescribed by the Constitution of Canada;
(b) the powers of the Senate and the method of selecting Senators;
(c) the number of members by which a province is entitled to be represented in the Senate
and the residence qualifications of Senators;
(d) subject to paragraph 41(d), the Supreme Court of Canada;
(e) the extension of existing provinces into the territories; and
(f) the establishment of new provinces.

S.41 “Unanimity Rule” – used for matters of national significance which should not be altered
over the objection of even one province. AFFECTING ALL OF CANADA, AFFECTS
EVERYONE. All 10 provinces and three territories must agree - requiring the assents of the
federal Parliament and all of the provinces.
 An amendment to the Constitution of Canada in relation to the following matters may be
made by proclamation issued by the Governor General under the Great Seal of Canada
only where authorized by resolutions of the Senate and House of Commons and of the
legislative assembly of each province:

1. The Office of the Queen, Governor general or Lieutenant General (Elevate or

demote)
2. Relationship btw number of seats in the HOC and number of senators.
3. Changing or adding a new language to Canada. Everyone has to agree.
4. Composition of the Supreme Court of Canada (Number of members of the
supreme court do we 10? 11)
5. An amendment to the amending procedures. If you are going to change
anything about how you are going to amend the constitution you are going to
need the entire country to agree to it.
 Why Is This Important?
 Prevents major national changes from being made without full provincial
consent.
 Protects foundational elements of Canada’s legal and political system.
 Ensures national unity by requiring broad agreement across all regions.
 Amendments dealing with “other essential features” of the Court could only be
changed under the general procedure (“7/50”) in s. 42(1)(d)

EXAMPLE: The Charlottetown Accord (1992) – A Failed Attempt at Unanimous

Constitutional Change
The Charlottetown Accord was a major constitutional reform package that attempted to address longstanding issues
in Canadian federalism. It required unanimous consent under Section 41 for certain provisions but ultimately failed
in a national referendum.
Key Proposals in the Accord:
1. Recognition of Québec as a "Distinct Society"
o Acknowledged Québec’s unique language, culture, and civil law tradition.
2. Senate Reform
o Proposed an elected Senate with equal provincial representation (similar to the U.S. model).
3. Indigenous Self-Government
o Recognized the inherent right of Indigenous peoples to govern themselves.
4. Division of Powers
o Shifted some powers from the federal government to the provinces (e.g., culture, mining, forestry).
5. Changes to the Supreme Court Appointment Process
o Required provincial input for the selection of Supreme Court justices.
Why Did It Fail? The Accord required nationwide support but was rejected in a 1992 referendum:
 54.3% of Canadians voted "No."
 Québec and Western provinces felt it didn’t go far enough.
 Indigenous groups had concerns about their self-governance provisions.
Impact of the Failure
 No further major constitutional amendments have been attempted since.
 Strengthened skepticism toward constitutional reform in Canada.
 Shifted focus toward informal agreements between provinces and the federal government rather than formal
amendments.

S43 “Some but not all” Provision: (1): Used for language usage within a province, (2): altering
provincial boundaries. May be made by proclamation issued by the Governor General under the
Great Seal of Canada only where so authorized by resolutions of the Senate and House of
Commons and of the legislative assembly of each province to which the amendment applies.
This Formula requires approval from: Federal Parliament (House of Commons and Senate) The
affected provinces.

 Note: protection of minorities is afforded by the fact that it also requires resolutions of the
Senate and HofC (i.e. Fedl level approval) as well as the affected provinces. Hogan v
Newfdlnd (2000). Applies to One or More but not all of the provinces, you don’t need
all of Canada to agree to that.
o Any alteration to the boundaries between the provinces. You need the
agreement of both provinces. Doesn’t affect the rest.
o Usage of French or English within that province. Example French in Quebec.
Province needs to agree onto itself. Only as far as the language is concerned.
Manitoba (English and French used frequently)
o Situations that only affect that provinces or province.
  Example: New Brunswick’s Official Bilingualism (1993): Section 43 was used to amend
the Constitution to enshrine New Brunswick as Canada’s only officially bilingual
province.
o The federal and New Brunswick governments entrenched bilingualism in the
Constitution, meaning it could no longer be revoked by a simple provincial law
change.
o This was done without requiring approval from all provinces, since it only
affected New Brunswick (hence, Section 43 applied).

Hogan v Newfoundland (2000) was a case where a group of individuals challenged the 1997
constitutional amendment that eliminated denominational school rights in Newfoundland and
Labrador.

Background
 Before 1997, Newfoundland and Labrador had a publicly funded denominational school system, meaning
religious groups (mainly Christian denominations) controlled education.
 In 1997, the government used Section 43 of the Constitution Act, 1982 to amend the Constitution and abolish
denominational schools, replacing them with a secular public system.
 Hogan and others argued that this violated religious rights protected under the Canadian Charter of Rights
and Freedoms.
Key Issues in the Case
1. Did the constitutional amendment violate the Charter’s religious freedom protections (Section 2(a))?
2. Could a constitutional amendment made under Section 43 be challenged under the Charter?
Court’s Ruling
 The Newfoundland Court of Appeal upheld the constitutional amendment.
 The court ruled that a constitutional amendment itself could not be struck down under the Charter—because
it was a valid amendment to the Constitution, it became part of the supreme law of Canada.
 The challenge was dismissed, and Newfoundland’s public school system remained secular.
Significance of the Case
 Confirmed that valid constitutional amendments override Charter claims.
 Demonstrated how Section 43 allows provinces to reform their own education systems without national
approval.
 Set a precedent for future challenges to constitutional amendments.

S.44 The Unilateral Federal Formula and covers amendments to the “Constitution of Canada”
in relation to the federal executive, or Senate and the House of Commons- provided that the
amendments do not fall within the category of amendments caught by the General and Unanimity
Formula.
 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.
o The federal government has the power to amend its own procedure however it
has to use this.
o Only way to amend Canadian parliaments procedure is amend the constitution
itself.
 Recall the Senate Reform Reference (2014) – another issue was whether Parliament
had the power to impose term limits on the tenure of Senators
 s. 44 should govern unless trumped by ss. 41 or 42
 s. 41 (unanimity) does not refer to the Senate and s. 42 (7/50 Formula) refers to the
powers of the Senate; the method of selecting Senators; provincial representation in
the Senate; and residence qualifications of Senators – but does not reference term
limits
  Peter Hogg thinks Parliament should have power to impose term limits on Senators
based on s. 44 but the SCC disagreed
 The SCC found that any reduction in the independence of the Senate would engage
the interests of the provinces – and the SCC found that, in addition to matters
expressly excluded from s. 44, any other changes that engage the interests of the
provinces are impliedly excluded from s. 44
 So the scope of s. 44 will be narrow
 What Does Section 44 Cover?
o Applies to federal institutions, such as: The Senate and House of Commons (e.g.,
changes to the number of seats).
o The federal executive branch (e.g., changes to how the Governor General is
appointed).
o Federal government powers and responsibilities (e.g., adjustments to federal
agencies).
o Does NOT require approval from the provinces, unlike other amending procedures
(e.g., sections 38, 41, or 43).
 Examples of Section 44 in Action
o 2011 Senate Reform Attempt The federal government tried to impose term limits
and elections for Senators using Section 44. The Supreme Court ruled that these
changes required provincial consent under Section 38 (General Amending
Procedure).
o Changes to House of Commons Seat Allocation Adjustments to the distribution of
seats among provinces (without affecting constitutional guarantees) can be made
under Section 44.
 Key Limitations of Section 44:
o Cannot be used to amend provincial powers or rights.
o Cannot be used to change the Constitution’s fundamental structure, such as the
method of selecting Senators (which requires provincial agreement).
o Limited to federal government institutions and responsibilities.

S.45 Each Provincial Legislature Alone – laws amending constitution of provinces (ie those that
bear “on the operation of an organ of govt of the province” – SCC). Subject to s. 41, the
legislature of each province may exclusively make laws amending the constitution of the
province.
 Note does not include: Constl guarantee of language rights (per SCC in AG Quebec v
Blaikie, now explicit in s45). Also: OPSEU v Ontario [1987]: Profound constitl upheaval
by the introduction of political institutions foreign to and incompatible with the Canadian
System.
o Province has power to amend its own procedures.

 Note: the amending procedures only apply to the “Constitution of Canada” as defined in s.
52(2) of the Constitution Act, 1982

What Does Section 45 Cover?

o Applies to provincial matters only, such as:
 The structure of provincial legislatures (e.g., changing the number of seats).
 The role and responsibilities of the Lieutenant Governor (but not their
fundamental existence, which is federally protected).
  The operation of provincial government institutions (e.g., establishing or
modifying provincial courts).
 Does NOT allow changes that affect federal institutions or other provinces.
Examples of Section 45 in Action
o Quebec's 2021 Constitutional Amendment Quebec used Section 45 to amend its
provincial constitution, declaring that: Quebecers form a nation. French is the only
official language of Quebec. Since this change only affected Quebec, it was done
unilaterally under Section 45.
o Newfoundland’s 1997 School System Reform Newfoundland used Section 45 to
abolish its denominational school system (previously protected in the Constitution).
Key Limitations of Section 45 Cannot be used to amend federally controlled parts of the
Constitution (e.g., Senate representation or the role of the monarchy). Cannot override Section
41 protections, such as the existence of provincial legislatures and lieutenant governors, which
require national agreement.

Secession
Issue: does the federal constitution give the power of secession to its provinces or states?
Secession Reference (1998) – a reference by the federal government to the SCC in which the SCC
was asked whether Quebec could secede unilaterally from Canada
1. Unilateral secession not permitted under the Constitution of Canada; and
2. Unilateral secession not permitted under international law.
i. A government, even one mandated by a popular majority in a referendum, must
still obey the rules of the Constitution
ii. Secession would require an amendment to the Constitution of Canada (SCC did
not say which amending procedure but that the federal government and
provinces would need to be involved); so negotiation would be required, not
unilateral action
iii.
The SCC went further in the Secession Reference (1998) and said that a
referendum in Quebec that yielded a clear majority on a clear question in favour
of secession, while ineffective in itself to accomplish secession, “would confer
legitimacy on demands for secession” and “would give rise to a reciprocal
obligation on all parties to Confederation to negotiate constitutional changes to
respond to that desire” (para. 88).
iv.This was a new idea in Canadian constitutional law, and the SCC said it arose
out of ideas of “democracy”, “federalism”, “constitutionalism and the rule of
law” and “the protection of minorities” = fundamental unwritten constitutional
principles (so a constitutional obligation to negotiate, and negotiate in good
faith?)
v. Parliament passed the Clarity Act, 2000 – need a “clear question” as determined
by the House of Commons and then a “clear majority” (not defined), also as
determined by House of Commons
vi.The SCC affirmed in the Secession Reference (1998) that the secession of a
province could be accomplished by amendment to the Constitution of Canada
vii.
However, it is not clear which of the five amending procedures is correct
viii.
For sure not s. 45 (province alone ie unilateral), because secession would not
 simply be an amendment to the “constitution of a province”
ix.Also not s. 44 (federal Parliament alone) or s. 43 (some-but-not-all-provinces)
x. So either s. 38 (7/50 Formula) or s. 41 (unanimity)

Secession in the Canadian Constitution Secession refers to the process by which a province (or
territory) attempts to leave Canada and become an independent country. The Canadian Constitution
does not explicitly grant provinces the right to unilaterally secede, but the issue was addressed in the
landmark Reference re Secession of Quebec (1998).
 Key Principles from the Supreme Court’s Decision: In Reference re Secession of Quebec
(1998), the Supreme Court of Canada ruled that:
i. A province cannot unilaterally secede under Canadian or international law: The
Constitution of Canada does not provide a legal framework for unilateral secession.
International law also does not recognize a right to unilateral secession unless a people
is oppressed or denied self-government (which was not the case for Quebec).
ii. A clear majority on a clear question would trigger negotiations If a province held a
referendum on independence and a clear majority voted “Yes” on a clear question, the
federal government and other provinces would be obligated to negotiate in good faith.
However, secession would require a constitutional amendment, involving multiple
provinces and the federal government.
iii. Four fundamental constitutional principles apply Federalism → Canada is a
partnership of provinces, so any change affects the whole country. Democracy → The
will of a province’s population must be respected, but so must the rights of other
Canadians. Rule of Law → Secession must follow legal and constitutional processes.
Protection of Minority Rights → Indigenous and other minority groups must be
considered in any secession.
iv. The Clarity Act (2000) After the Supreme Court’s ruling, the federal government
passed the Clarity Act (2000), which sets rules for provincial secession:
1. The House of Commons decides if the referendum question is clear before a
vote.
2. A simple majority (50%+1) may not be enough—the federal government must
assess whether the result shows a clear majority.
3. If a clear majority votes for secession, the federal government must enter
negotiations.
 Could a Province Leave Canada? Yes, but only through: A clear referendum with strong support.
Negotiations between the federal government, provinces, and Indigenous groups. A constitutional
amendment following the amending formula.

Future Amendments
 French Canadian Nationalism: 1982 amendments reduced power of Que Natl Assembly,
Que was only prov that did not agree with them. Meech Lake Accord 1987 – to appease Que,
but fell short of ratification by 2 provs. Charlottetown Accord 1992 rejected in National
Referendum. Quebec then held 2nd ref 1995. Defeated by only 49.4% – 50.6%.
 Western Regionalism: Bulk of Canada’s pop is in Que + On. So Fedl policies favour manuf
industry and consumers of central Can. West relies on prod of wood, oil, gas, metals.
Response: 1. to increase Provl govt power which the West can more easily control and decr
Fedl power (per 1982 amendments), and 2. Make central institutions more responsive to
regional concerns.
 Aboriginal Peoples Demands: entrenchment of traditional rights. S35: guarantees existing
aboriginal and treaty rights. S37 commits to further discussions. They also seek:
entrenchment of explicit right t self govt, and to participate in constl amendmt process where
aboriginal rights may be affected.(Charlottetown Accord would have done so but was
defeated).
  Entrenchment of Charter Rights: note override provision was inserted to obtain agreement.
Note also Quebec never agreed with the Charter yet still legally binding on the province.
 Division of Powers: Reducing Fedl and incr Provl power easiest way to address French
Candian and Western Canadian grievances. 1982 amendmts incr provincial power over
natural resources. On the other hand: Enlargement

FEDERALISM:
Constitution Act, 1867, ss.91-95
Constitution Act, 1982, s.52
Hogg, chapter 5, “Federalism”

Distribution of Government Powers

Federalism- Hogg 5.1
Canada is a Federal State. ( US and Australia as well) is a system of government.
 Unitary vs. Federal State- In a federal governmental power is distributed
between a central power (or national or federal authority) and several regional
(Provincial or state) authorities so that every individual in the state is subject to the
laws of two authorities-central and regional. A unitary state government power
is vested in one national authority. There are municipal and or local governments
with law making over their territories. These powers given to municipal
governments are granted by a national authority and can be taken away, altered or
controlled at any time by the national legislature. (Montreal-to Quebec).
 Powers tend to shift back and forth over time from national power to regional
powers.
 Metaphor often described as “higher level” of power (federal) with “coordinate”
level of power. Does not mean they are legally subordinate.
 Whether a state is still truly “federal” depends on whether there is still “an area of
guaranteed autonomy for each unit of the system”
 Federal Principle defined- KC Where defined it as “the method of dividing
powers so that the general and regional governments are each, within a sphere co-
ordinate and independent” This has been criticized
 Other writers define it emphasizing “interdependence”
 Differences between Unitary-federal- between and government practices
between federal states(like Canada) and “unitary” states ( UK, New Zealand)
Distinctive issues concerning the distribution of power, the distribution of
executive power and the administration of justice that have to be resolved in
federal states but non-existent in the unitary state.

 Everybody is subject to the federal government. The method of dividing powers so that the
general and regional governments are each within a sphere coordinate and independent.
Governmental power is divided between a central (or national or federal) authority and several
regional (or provincial or state) authorities, so that every individual in the state is subject to the
laws of the two authorities, the central authority and regional authority
 The parliament sets the floor not the ceiling. They set the minimum standard that the provinces
have to follow and the provinces have to meet the bare minimum.
 Neither authority is subordinate to the other (“coordinate” = equal in status); also
“autonomous”
 That being said, it is common to speak of two “levels” of government because the central
authority extends throughout the country (so “higher”) while the regional authority is confined
 to its region
 Federal law prevails in the event of inconsistency
 Federalism in Canada: Two levels of independent, autonomous government – federal
and provincial
o Each with exclusive powers
o Federal and provincial governments cannot unilaterally expand their powers because
they are entrenched in the Constitution
o The BNA Act gave the provinces only enumerated powers to make laws, giving the
residue of power to the federal Parliament
o Federalism is A centralized system of government
 In violation of the principle that in a federal state, the regions should be coordinate with the
centre – How?...
 Example: Federal set the standard for the drinking age. They set it as 19 and Quebec wanted
to change it to 16.
 The supreme court reigns and all laws are subject to their review.

Centralizing features in the Constitution Act, 1867, making provinces subordinate to the central
government, including:
o Disallowance (s. 90) – federal gov could disallow provincial statutes
o Appointment of Lieutenant Governors (s. 58) – federal gov has the power to apt the
Lieutenant Governors of each province
o Appointment of judges (s. 96) – Federal gov has the power to appoint judges of the
superior, district and county courts of each province
o Educational appeals (s. 93)
o Declaratory power (s. 92(10(c)) – federal gov could bring local works within federal
legislative jurisdiction by declaring them to be “for the general advantage of Canada”
 However, most of these elements have been rendered illegitimate by the development of case
law, convention and practice, such that the elements of provincial subordination in the
Constitution have been virtually eliminated – see Hogg pp. 5-15 to 5-22

Dominion and Provinces

 Need to be able to describe three things in a federal state:
 the regional authorities ( this is rarely a problem-regions are known as
provinces)
 the central authorities (It’s difficult to find a description for the central
authority-the use of the word Dominion has issues and
 the use of the word Canada

Reasons for Federalism

 The genesis of the federal system in Canada was political compromise between proponents of
unity and proponents of diversity.
 Advantages of efficiency and accountability in dividing powers of government for countries
with large land mass.
 Provinces or states are more homogeneous then the nation as a whole will sometime adopt
policies that are too innovative or radical to be accepted. This way new legislative programs
can be tested. If the program does not work, then the whole nation as a whole has not been
harmed.
 Another advantage of federalism is that is that the system operates to preclude an excessive
 concentration of power and thus as a check against tyranny.
 Balances national unity with regional diversity – Allows provinces to govern based on local
needs while maintaining a strong national government.
 Protects provincial autonomy – Prevents federal overreach in areas like health care and
education.
 Encourages cooperation – Federal and provincial governments work together on issues like
environmental policy and public health.

Judicial interpretation of the distribution of powers

 Two figures dominated the course of decisions in Canadian constitutional cases Lord Watson
1880-1899 and Lord Haldane 1911-1928.
 They both believed strongly in provincial rights and established precedents that elevate the
provinces to coordinate status with the Dominion.
 They gave a narrow interpretation to the principle federal powers (the residual power and the
trade and commerce power and wide interpretation to the provincial powers

Federal-provincial financial arrangements

 Since the second world war there has been a substantial shift in power back to the provinces
the present federal provincial financial arrangements give the Canadian provinces more
financial autonomy than enjoyed in the US or Australia.

Disallowance
 The federal power to disallow provincial statues was frequent in the early years of
confederation.

Declaratory Power
 s92(10)(c) Parliament’s power to bring local work within federal jurisdiction by declaring it to
be “for the general advantage of Canada”
 Used for railways and sparingly in recent years.
 Was going to be amended in Charlottetown Accord but since it was defeated it remains
unilateral power.

ROLE OF THE COURTS:

Development of Judicial Review

 The constitution of Canada does not expressly provide the machinery for settling disputes
about the distribution of legislative power and there is controversy as to what the framers
intended.
 s52(1) is the current basis of judicial review in Canada.
 Reasons Courts Are Important in JR: Ensure constitutional balance – Prevents federal or
provincial overreach. Clarify legislative powers – Helps governments understand their
authority. Promote stability – Provides a neutral and legal way to resolve disputes.

Limitations of Judicial Review

 Canada, where legislative powers are distributed between a central legislative power and
regional legislative bodies-
o First function of JR is to enforce the disruption of powers rules (the rules of
federalism)
 The courts often have to determine whether a particular statue comes within the
 powers the powers conferred by the constitution on the legislative body enacted
the statue- if the statue is judicially determined to be outside the powers
conferred upon an enacting body, then the statue is ultra vires and invalid.
o Second function-of judicial review is to enforce the Charter restrictions and the other
non federal restrictions. Courts have to decide if a statue violates a constitutional
prohibition- ie by justifiably abridging freedom of expression-if it does, then it is ultra
vires.
o Policy making- judges not suited for this, their mandate is to make decisions differs
from that of other public officials in that judges are not accountable to any electorate or
to any government for their decisions.
o Judges have no power to initiate inquires or research, no staff of investigative
researchers and no power to enact a law in substitution for one declared invalid.
o Often judges may have to make decisions which depend on “a judgement or intuition
more subtle than any article major premise.
o JR permits or requires non-elected judges to make a decision of great political
significance.

Alternatives to Judicial Review Hogg 5.5(c)

o Proposals to make tribunals of lawyers and non-lawyers so that different interests could be
represented
o Another proposal is to divide the SCC into specialized divisions-a common law division, a
civil law division, and a constitutionally law division-each division designed to ensure
maximum expertise.
o There is much to be said in favour of the present system of judicial review by a court of
general appellant jurisdiction

The Power to Succeed Hogg 5.7

o No reason why in principle why a federal government should not give a power of succession
to its provinces.
o The Succession Reference 1998 was a reference by the federal government to the Supreme
Court of Canada, in which the Court was asked whether Quebec could secede unilaterally
from Canada.
 3 Questions put to the Court:
1. What was the position of the under the Consti. of Canada to which the
court replied that unilateral secession was not permitted?
2. What was the position under international law, to which the court gave
the same answer?
3. Asked-what was the position if the Constitution of Canada and
international law were in conflict-they did not have an answer?

o Court coined the term “effectivity”- when a defacto succession takes place without the
required agreement or the required amendment. Such a succession would be unconstitutional.
In this case, the constitutional law of Canada would eventually have to recognize this reality.

Clarity Act (created after Succession Reference) Hogg 5.7(a)

o so that the political actors, not the courts to determine whether a referendum had created a
clear majority on a clear question.
o S1 Clarity Act –if a province proposes a referendum on succession , the HoC is to consider
 the question and determine whether the question is “clear”. Whether clear depends on , HOC
depends on “the question would result in a clear result in clear expression of the will of the
population of a province on whether the province should cease to be part of Canada and
become an independent state. Act states question is unclear if “mere focus to negotiate” or
envisages economic /political arrangement with Canada that obscures a direct expression of
the will of the population of that province...
o S 2 – if question is clear, the Hof C has to determine if the majority is “clear”. The act does not
define “clear”.
o S 3 – the CA recognizes that under the Constitution of Canada, there is no right to unilateral
succession, and an amendment would be needed to succeeds from Canada.

Regional Veto Statue- incorporates regions into the 7-50 formula ( ordinary statue not a
constitutional amendment). It prevents an minister of the crown introducing any resolution
authorizing An Amendments in the house of commons without prior consent of the legislatures of: a)
Ontario b) Qube c) BC d) 2 or more of the Atlantic provinces(min 50% of the population) e) two or
more of the parie provinces with(min 50% of the
population)

Hogg- the regional veto statue gives indirect vetos to the four most populous provinces to BC, ONT,
QUE and BC and this compromises the equality of the provinces envisioned in the 7-50 formula.

Succession Amending Procedure- Question is could it be done under the general amending
procedures of s38 (7-50 formula) or whether it can be done by the unanimity procedure of s41.
unilateral succession would be illegal and could be considered a revolution. Questions of legitimacy
would arise and questions of continuation or existence of a legal system would apply to.

Co-operative Federalism- the essence of this is its a network of relationships between the executives
of the central and regional governments. Demands of interdependence of governmental policies,
equalization of regional disparities and constitutional adaptation produce co-operative Federalism.

Issue: disputes arise as to whether or not a particular legislative body has the power to enact a particular statute
so there needs to be a system for settling disputes
 The Constitution of Canada does not expressly provide a machinery for settling such disputes
 Current basis of judicial review in Canada is s. 52(1) of the Constitution Act, 1982, which stipulates
that the Constitution of Canada is “the supreme law of Canada” and that “any law that is inconsistent
with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”
 The Constitution Act, 1982 also broadened the scope of judicial review by adding a Charter of Rights
to the Constitution of Canada
Issue: who decides whether a proposed law is inconsistent with the provisions of the Constitution?
 The courts
 But note that there is policy-making inevitably involved
 What are arguments for and against judges making these kinds of policy-laden decisions?
 What are some possible alternatives to judicial review? (ie, if not judges, then who?)

SUBSIDIARITY:
 “Subsidiarity” = a principle of social organization that prescribes that decisions affecting individuals
should, as far as reasonably possible, be made by the level of government closest to the individual
affected
 In Canada, one of the primary goals of confederation in 1867 was to preserve a considerable degree of
autonomy for the four original provinces (esp Quebec); the BNA Act accordingly invested the
provincial Legislatures with authority over matters such as property and civil rights, the courts and the
 police, municipal institutions, hospitals and education.
 The BNA Act invested the federal Parliament with authority over customs and excise, trade and
commerce, banking and currency, taxation, national defence (all to the collective benefit of the uniting
provinces)
 What are some benefits of federalism?

Part II: Distribution of Powers

4. Principles of Interpretation
Hogg, chapter 15, “Judicial Review on Federal Grounds”
o Priority Federal vs. Charter- Question has no practical significance.
o S52 Constitutional Act 1982-any law contrary to provision of the “Constitution of Canada” is
“of no force effect”
o Both federal distribution of powers and the Charter are part of the “Constitution of Canada”
o Hogg believes that logically- federal parliament/provincial legislatures are logically prior to the
Charter.

When reviewing the validity of a law –ask:

 Whether the law is within the law making power of the enacting body?
 secondly, is whether the law is consistent with the Charter of rights?

Hogg -2 arguments why federal/provincial laws are prior to Charter:

1. Comparing federal/provincial laws with the Charter is supported by s. 32(1) Charter where it
uses the phrase “in respect of all matters within the authority of”.
2. s33- another argument in favour of logical priority of federalism issues over Charter issues is the
presences of s33 override. This enables the parliament or a Legislature to over ride most of the
provisions in the of Charter by including in a statue a declaration that the statue is to operate
notwithstanding the relevant provisions of the Charter. This makes the statue valid despite
Charter rights. This applies to both federal and provincial legislatures.

Procedure for JR- procedural and evidentiary rules are the same for federal grounds and Charter
grounds

Reasons for JR- s91 and s92 of the Constitution Act 1867
s91- lists kinds of laws that are competent to the Federal Parliament
s92- lists out laws that are competent to Provincial Legislatures.
Both sections use terminology giving legislative authority in relation to “matters” coming with
‘classes of subjects”.

Judicial Review and Principles of Constitutional Interpretation

 Judicial review of legislation is the power to determine whether any particular law is valid
or invalid
 Two main grounds of judicial review:
(1) Federal / Distribution-of-powers grounds
o If Law is valid (intra vires) if the court find that the law was enacted within the
powers allocated by the Constitution to whichever legislative body enacted the law
o If Law is invalid (ultra vires) if the court finds that the law was enacted outside the
powers allocated to the enacting body
(2) Charter grounds (to be discussed later)

Procedure of Judicial Review on Federal Grounds

 ss. 91 and 92 of the Constitution Act, 1867 set out the distribution of legislative power
between the federal Parliament and the provincial Legislatures; in particular, legislative
authority arises in relation to “matters” coming within “classes of subjects”
o Section 91 lists the kinds of laws that are competent to the federal Parliament
o Section 92 lists the kinds of laws that are competent to the provincial
Legislatures

Section 91 - Federal Section 92 - Provincial

2. Regulation of Trade and 7. The Establishment, Maintenance, and Management of

Commerce Hospitals, Asylums…
3. The raising of Money by 10. Local Works and Undertakings other than . . . [i.e. not
any Mode or System of ships, railways…]
Taxation
7. Militia, Military and 11. The Incorporation of Companies with Provincial
Naval Service, and Objects
Defence
25. Naturalization and 13. Property and Civil Rights in the Province
Aliens
26. Marriage and Divorce 14. The Administration of Justice in the Province…

27. The Criminal Law 16. Generally all Matters of a merely local or private Nature
in the Province

Judicial Review Steps

1. Identify the “matter” of the challenged law
 In other words, the law in question needs to be characterized
 What is the “pith and substance” of the law?
 is to identify the matter (pith and substance or “characterization”) of the challenged
law; (Charter- one identifies the “purpose” and “effect” of an impugned statue
infringes charter right.)
2. Based on the law’s “matter”, determine which level of government (federal or provincial) has
legislative power over it by looking at ss. 91 and 92 - is to assign the matter to one of the “classes
of subjects”.

STEP 1: Characterization
PITH AND SUBSTANCE – What is this law really about?
1. STEP 1: Identify the Matter (Identify the “matter” of the challenged law)
a. Ask the question: What is the “pith and substance” of the law?
b. Need to identify the dominant feature / most important characteristic of the law
that’s what the courts look at. Courts are the ultimate arbitrators.
c. Characterizing the law is not a formal, technical exercise
d. Look at the effects of the law i.e. how a statute changes the rights and liabilities of those
who are subject to it
e. The court will also look beyond the direct legal effects to inquire into the social or
economic purposes which the statute was enacted to achieve (see R. v. Big M Drug Mart
 (1985) and R. v. Edward Books and Art (1996))
f. Note that the court is not meant to look at efficacy of the law

PITH AND SUBSTANCE – Incidental Effects Doctrine

 Problems arise where one feature of a law comes within a provincial head of power and another
feature comes within a federal head of power
 KEY: Incident effects on matters outside your jurisdiction are okay as long as the effects are
incident, if the court determines No – this is not a incidental effect, you are passing a law outside
your column instead of section 92 you pass something that is in 91 columns, it can be
unconstitutional – Example: Alberta Bank Taxation Reference.
o Bank of Toronto v. Lambe (1887) - a provincial statute that imposes a direct tax on banks
– need to look at what is the most important feature; direct taxation = provincial but
banking = federal; dominant feature was to raise revenue so the “matter” of the law was
direct taxation, not banking (so within provincial jurisdiction) How does the court make
this choice? The question of what the court decides is the pith and substance. There is a
presumption of constitutionality.
o Alberta Bank Taxation Reference (1938) – Alberta law imposed a special tax solely on
banks; the pith and substance was to discourage the operation of banks in Alberta so the
matter was “banking” and the taxing quality of the law was incidental (so the matter was
within federal jurisdiction and so the province could not enact the law and it was struck
down) Ultravires – outside the jurisdiction.
o Incidental Effects Doctrine
 the “pith and substance” doctrine enables one level of government to enact laws
with a substantial impact on matters outside its jurisdiction; the law is “in relation
to” a matter but can “affect” other matters
 Note that “singling out” a person or class of persons is not conclusive of pith and
substance (see Hogg p. 15-11)
 Quebec v. Lacombe (2010) – municipal by-law in Quebec prohibited the use of lakes as
aerodromes; land use zoning = provincial (provinces usually delegate to municipalities) but
aeronautics = federal; the court found that the pith and substance of the law was aeronautics, not
zoning, and so the bylaw was struck down because it was outside (ultra vires) provincial
competence. Aeronautic is within federal jurisdiction.
 Quebec v. Canadian Owners and Pilots Association (2010) – a provincial law prohibited non-
agricultural uses of land zoned by the province as an “agricultural zone”; here, Court found it was
a valid provincial law because it was in relation to land use or agriculture; but the incidental effect
was that the provincial law could not impair the essential core of the federal power over
aeronautics so could the provincial law could not apply to the use of land for the landing or taking
off of aircraft; so the law was mostly valid, but not for aircraft - Note: this was due to the doctrine
of interjurisdictional immunity (An exception to the general rule that a valid law can have effects
on matters within the jurisdiction of the other level of government (to be discussed later today…))

The “Double Aspect” doctrine

o Some laws actually have two distinct separate matters?
o Subjects in which one aspect and for one purpose fall within s. 92 may in another aspect
and for another purpose fall within s. 91
o There isn’t an overlap between section 91 and 92, they are exclusive, but court will
recognize that some laws can have two matters but it’s RARE.
o The double aspect doctrine acknowledges that some kinds of laws have both a federal and
 a provincial “matter” and there therefore competent to both the federal Parliament and the
provinces
o So when will a court allow the double aspect doctrine and when will the court find it
necessary to make a choice between the federal and provincial features of a challenged
law?

Colourability
 Is invoked by the court when a court decides that parliament or the legislature has passed a law
that they pretending to be within their jurisdiction, over a matter they think they have
constitutional competence but actually they don’t. You cannot do something indirectly what its
not supposed to directly.
 The “colourability” doctrine is invoked when a statute bears the formal trappings of a matter
within jurisdiction, but in reality is addressed to a matter outside jurisdiction
 A legislature cannot do indirectly what it is not permitted to do directly
o Alberta Bank Taxation Reference (1938) – the legislation was ostensibly designed as a
taxation measure but was in reality directed at banking (special tax solely on banks)
o R. v. Morgentaler (No. 3) (1993) – the court struck down a Nova Scotia statute that
required “designated” medical procedures (of which one was abortion) to be performed in
a hospital – this was a provincial attempt to restrict access to abortion and were really
invalid criminal laws (not health)

Presumptions of Constitutionality
 The “presumption of constitutionality” means that the burden of demonstration lie upon those who
would challenge the validity of a statute which has emerged from the democratic process
 Three legal consequences:
o In choosing between competing, plausible characterizations of the law, the court should
normally choose that one that would support the validity of the law Re Firearms Act[2000]
o Where the validity of a law requires a finding of fact, that finding of fact need not be
strictly proved by the government; it is enough that there is a rational basis for the finding
o Where a law is open to both a narrow and a wide interpretation, and under the wide
interpretation the law’s application would be ultra vires, the court should “read down” the
law so as to confine it to those applications that are within the power of the enacting
legislative body
These 3 functions have the effect of reducing interference by unelected judges with the affairs of
elected legislative. Only “reading down” with exist in Charter cases.

REVIEW: When you have a question about whether or not the law is constitutional or not from
the perspective of federalism

Step one: What is the "pith and substance" of the law? What is the law really doing? What I the
preamble tell you its doing? What do politicians say about the law? In theory you should land on one
thing,
Step two: Assign the law to a matter in either s. 91(Federal) or s. 92 (provincial) and determine
whether it is within the jurisdiction of the enacting body (if yes, the law is "intra vires"; if no, the law
is "ultra vires") If federal government is passing the law and it fits under column 91 if it were to fit
under 92 it would not be constitutional.
 Note: incidental effects are permissible (it’s about taxes but has some banking in it)
 Note: double aspect doctrine allows a court to say that either level of government can legislate
because the law has two legitimate matters
 Note: look for colourability, which may invalidate a law
Step three: Does the provincial law go beyond just incidental effects, and impact the vital or essential
part of a federal undertaking (or vice versa)? If yes, the doctrine of interjurisdictional immunity will
be triggered...

Interjurisdictional Immunity
 A law that purports to apply to a matter outside the jurisdiction of the enacting legislative body
may be attacked in three different ways; the attack may go to:
1. The Validity of the law (where the matter or “pith and substance” is outside the jurisdiction);
2. The Applicability of the law (where the law is valid in most of its applications, but can be
interpreted so as not to apply to the matter that is outside the jurisdiction – this means that the
law is inapplicable to the extra-jurisdictional matter, such as by reading down, and this is
known as interjurisdictional immunity);
3. The Operability of the law (where the law that applies to a matter outside the jurisdiction of
the enacting body is inoperative through the doctrine of paramountcy (stay tuned)

 First, it could be argued that the law is invalid because the “pith and substance” comes
with a class of subjects that is outside the jurisdiction of the enacting body. Alberta Bank
taxation Reference (1938)
 Second, way of attacking is to acknowledge that the law is valid in most of its applications
but argue that the law should be interpreted so as not to apply to the matter that is outside
the jurisdiction of the enacting body. If this argument succeeds, the law is not held to be
invalid, but simply inapplicable to extra-jurisdictional matter. –The technique is “reading
down” the law.
 Third, way of attacking a law that applies outside the matter outside the jurisdiction of the
enacting body is to argue that the law is inoperative through the doctrine of paramountcy.
The doctrine states that where their is inconsistency between federal and provincial laws
the federal law should prevail. Paramountcy render provincial law inoperative to the extent
of the inconsistency.
 Sometimes a law goes too far in impacting a ‘matter’ outside of its jurisdiction (ie beyond just
incidental effects)
 Issue: when it is appropriate to read down a law so that it should be interpreted so as not to apply
to a matter that it outside the jurisdiction of the enacting body?
o When a Law Has Both Valid and Invalid Applications
 If a law is partially valid (it regulates something within the enacting government’s
jurisdiction) but also extends into another government’s exclusive jurisdiction,
courts may read it down to apply only to valid matters.
 This prevents the entire law from being struck down.
“Vital part” test – a provincial law may not impair the basic, minimum and unassailable content
(the core) of a federal legislative power or a vital or essential part of a federal undertaking
o If a provincial law affects a core federal power (or vice versa), courts may read it down
to avoid conflict with the other level of government’s jurisdiction.
How Does Interjurisdictional Immunity (IJI) Apply?
o Interjurisdictional Immunity (IJI) applies when a law from one level of government
impairs the core of a power assigned to the other level of government under the
Constitution Act, 1867. If IJI applies, the law is inapplicable to the protected area, even
if it is otherwise valid.

Steps for Applying Interjurisdictional Immunity (IJI)

Step 1: Identify the Core of a Federal or Provincial Power IJI applies when a provincial law
affects a core aspect of a federal power or vice versa. Example: A provincial law imposing
safety rules on airlines → Airlines are federally regulated, so IJI may apply.
Core areas of federal power protected by IJI:
 Federal undertakings (e.g., airlines, railways, telecommunications, banks).
 Indigenous governance and rights (s. 91(24)).
 Federal criminal law (s. 91(27)).
Core areas of provincial power (less commonly protected by IJI):
 Property and civil rights (s. 92(13)).
 Health and education (s. 92(7) & (16)).

Step 2: Does the Law "Impair" the Core Power?

Canadian Western Bank v. Alberta (2007) clarified that IJI only applies if a law seriously
impairs (not just affects) a core power.
“Impairment” means:
 The law makes it harder or impossible for the federal/provincial power to function.
 Mere incidental effects are not enough. Example: A provincial law requiring banks to
comply with provincial consumer protection rules.

 Does it impair the core function of banks? → NO → IJI does not apply.
 Does it interfere with banking operations to the point of serious disruption? →
YES → IJI applies.

Step 3: Does the Law Become Inapplicable?

 If the law impairs a protected core area, courts declare it inapplicable to that area.
 The law still applies to everything else.
 The law is not struck down—it just doesn’t apply to the protected area.
 Example: A provincial labor law applies to both private companies and federal
banks.
Courts read it down so that it only applies to private companies, not banks.

 Canadian Western Bank v. Alberta (2007) – the Court held that interjurisdictional
immunity would apply only if a “core competence” of Parliament or a “vital or essential
part of an undertaking it duly constitutes” would be impaired by a provincial law; if the
core competence or vital part would merely be affected (without any adverse
consequences) by a provincial law, no immunity applied. This case is an example of laws
which have been upheld despite their incidental impact on matters outside the enacting
body’s jurisdiction.
 Issue in Canadian Western Bank v. Alberta was whether Alberta’s Insurance Act could
constitutionally apply to banks (Act required banks to obtain a licence from the province to
 promote insurance to its customers); Court held that the Act could validly apply to the
banks when they promoted insurance because the promotion of insurance by banks was
too far removed from the core of banking to qualify as a vital part of the banking
undertaking
 Recall Quebec v. Lacombe (2010) – Municipal by law in Quebec prohibited the use of
lakes as aerodromes; by law was struck down because it was outside (ultra vires)
provincial competence because pith and substance was aeronautics (Ie. Federal authority).
 In this way, the application of the interjurisdictional immunity doctrine was restricted
by the Court.
 See also Quebec v. Canadian Owners and Pilots Association (2010) – provincial law
which designated areas of the province agricultural zones from which all non-agricultural
uses were prohibited; the provincial law was inapplicable to the extent that it prohibits
aerodromes in agricultural zones because the location of aerodromes was essential to
the federal power over aeronautics and was therefore within the core of the power.
a. Within provincial power to talk about land use planning under section 92, that law
is valid for most of its purpose, but only for agriculture purposes – it’s a valid law,
but the federal parts of the law, are immune from the laws reach.
b. The core of the federal power over aeronautics includes decisions about where
aerodromes can be located.
c. Quebec’s law impaired this federal power by preventing aerodrome
construction, even though it was framed as a land-use regulation.
d. The law was not struck down, but it could not apply to aerodromes.
 i.e. doctrine of interjurisdictional immunity applied because there was an “impairment”
 The rest of the law remains valid.

Key Takeaways:
 Aerodromes are a protected core of federal jurisdiction → Provinces cannot
regulate them
 Interjurisdictional Immunity (IJI) applied → Quebec’s law was inapplicable.
 Even if a law is general (like land-use laws), if it impairs a core federal power, it
cannot apply.

Pith and substance or interjurisdictional immunity?

 Pith and substance doctrine stipulates that a law in relation to a provincial matter may
validly affect a federal matter
 Interjurisdictional immunity doctrine, by contrast, reads down the provincial law to
exclude the federal matter
 Pith and substance doctrine is applied more frequently; but which one to apply?
 Rule: if the provincial law would impair the basic, minimum and unassailable core of the
federal subject, then the interjurisidictional immunity doctrine stipulated that the provincial
law must be restricted in its application (read down) to exclude the federal subject
 If, on the other hand, the provincial law did not impair the core of the federal subject, then
the pith and substance doctrine stipulated that the provincial law validly applied to the
federal subject
 Issue: Is the interjurisidictional immunity doctrine reciprocal? is not fully reciprocal
between federal and provincial powers. While it can apply in both directions, in practice, it
is more commonly used to protect federal powers from provincial laws rather than the
other way around.
  Interjurisdictional Immunity: is rarely applied and is now used only in exceptional
cases where a law significantly impairs a core federal or provincial power.
 Courts prefer to use pith and substance and paramountcy doctrines instead of IJI.
 Recent trend: The Supreme Court has narrowed IJI, as seen in Canadian Western
Bank.
 If the issue is about whether a law is valid or ultra vires → Pith and substance.
 If the issue is about whether a valid law can apply to a federally or provincially
protected area → IJI.

Presumption of Constitutionality
 The “presumption of constitutionality” means that the burden of demonstration lie upon
those who would challenge the validity of a statute which has emerged from the
democratic process
 Three legal consequences:
o In choosing between competing, plausible characterizations of the law, the court
should normally choose that one that would support the validity of the law
o Where the validity of a law requires a finding of fact, that finding of fact need not
be strictly proved by the government; it is enough that there is a rational basis for
the finding
o Where a law is open to both a narrow and a wide interpretation, and under the wide
interpretation the law’s application would be ultra vires, the court should “read
down” the law so as to confine it to those applications that are within the power of
the enacting legislative body

Severance
 Issue: can a court “sever” the bad part of a statute, thereby preserving the good part, or
should the court declare the entire statute to be bad (invalid)?
 Severance is a remedy where only one part of a statute is invalid and the balance of the
statute would be valid if it stood alone
 Severance is inappropriate where the remaining good part is so inextricably bound up with
the part declared invalid that what remains cannot independently survive; in that event, it
may be assumed that the legislative body would not have enacted the remaining part by
itself
 Is severance rare or common? RARE (Courts typically prefer to either uphold or strike
down a law rather than sever parts of it.)
 Severance- no matter how complex law is, it is usually one legislative plan. The leading
feature of that plan or scheme will be the pith and substance. It is possible that only part of
the statue is invalid and the balance of it would be valid if it stood alone.
 Rule- severance is inappropriate when the remaining good part “ is so inextricably
bound up with the part declared invalid that what remains cannot independently
survive. A-G Alta v A-G Can [1947] Toronto v York [1938]
 If two parts can exist independently then it is plausible to regard them as two
different laws. There does appear to be a 10 11 presumptions against severance.
 Charter- severance is more common in Charter cases. The same test is applied but
it is unlikely that the entire statue is struck down on Charter rights. Only one case
where entire statue was struck down- R v Big M Drug Mart (1985)
 Example of Severance in Canadian Law: R v. Sharpe (2001)
Background: The case involved child pornography laws under s. 163.1 of the Criminal Code.
The accused, John Sharpe, argued that the law violated freedom of expression (s. 2(b) of the
Charter).

Court's Ruling & Severance:

 The Supreme Court of Canada upheld most of the law, but found that it was overly broad
because it criminalized personal/private works of imagination (e.g., personal diaries or
fictional stories that were never shared).
 Instead of striking down the entire law, the Court severed the part that would have
criminalized purely personal, unpublished content.
 This kept the core purpose of the law intact (protecting children from exploitation) while
ensuring it did not infringe on legitimate personal expression.
Key Takeaways on Severance:
 Rare but possible if unconstitutional parts can be removed without affecting the purpose of
the law.
 Courts preserve legislative intent as much as possible.
 Applied in cases where a law is overbroad, but the unconstitutional part is separable.

Reading Down
1. If the Law Is Entirely Outside the Government’s Jurisdiction
o If a law is completely ultra vires, courts cannot save it by reading it down—they must strike
it down.
o Example: A provincial government tries to create a criminal code → Completely federal
jurisdiction (s. 91(27)) → Law is struck down.
o The “reading down” doctrine requires that, wherever possible, a statute is to be interpreted as
being within the power of the enacting legislative body.
o Reading down is all about interpretation
o Appears to depend on a presumption of constitutionality
o Effect is to constrain the role of the courts
o This doctrine when possible a statue is interpreted as being within the power of the enacting
legislative body. This means that general language of the statue which is literally extending
beyond provincial or legislative power will be construed more narrowly so as to keep it within
the permissible scope of power.

These are key principles of Canadian Federalism and Constitutional Interpretation:

 Exclusiveness – each of the classes of subjects in ss. 91 and 92 is exclusive to the Parliament
or Legislature to which it is assigned; despite appearances, there is no overlap (or is there?...
See below re “concurrency” and recall the “double aspect” doctrine and the “incidental
effects” doctrine)
 Ancillary power – no such power in Canada, which is a power to make all laws necessary and
proper for carrying out all other powers (such as in the USA) Unlike in the U.S., Canada does
not have a broad “necessary and proper” clause allowing Parliament to expand its powers.
 Concurrency (shared jurisdiction) – there are three provisions that confer concurrent
powers: those dealing with natural resources, old age pensions and agriculture and
immigration
 Exhaustiveness – all powers are distributed, All possible legislative powers are accounted for
—there is no "leftover" jurisdiction. Anything not assigned to the provinces by section 92 falls
under the “residual” power of Parliament in section 91 (the Peace, Order, and Good
Government (POGG) clause)
 Progressive Interpretation– general language describing classes of subjects (or heads of
power) is not frozen in time in 1867; constitution as a “living tree”
 Unwritten constitutional principles – Courts have recognized fundamental principles that
aren’t explicitly written in the Constitution but are still legally binding. i.e. democracy,
constitutionalism, the rule of law, the independence of the judiciary, the protection of civil
liberties

PARAMOUNCY
FIGHT BETWEEN PROVINCES + FEDS (WHY?)
Debates About Division of Powers -> IT’S ALL ABOUT MONEY, CONTOL, POWER

Hogg, chapter 16, “Paramountcy”

Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188

Hogg 16.2 Definition of Inconsistency

When are two laws deemed to be inconsistent? Wide definition- is the course of judicial activism
in favour of central power. Narrow definition is the course of judicial restraint. Canadian courts
have followed the course of restraint.

 Issue: what happens when a valid provincial law conflicts with a valid federal law?
o Recall: double aspect, pith and substance (incidental effect), which allow that
sometimes federal and provincial laws can overlap; but what happens when the laws
actually conflict (are inconsistent)?
 Doctrine of federal paramountcy: where there are inconsistent (or conflicting) federal and
provincial laws, it is the federal law which prevails.

 The doctrine of federal paramountcy applies when there is a federal law and a provincial law
which are:
o Each valid, and
o Inconsistent.

Express Contradiction
o When one law expressly contradicts another (i.e. it is impossible for a person to obey
both laws because compliance with one law involves the breach of another); or
o Where a provincial law would frustrate the purpose of a federal law.

Important note: only “express contradiction” suffices to invoke the paramountcy doctrine; a
provincial law that supplements or duplicates a federal law is not deemed to be inconsistent
with the federal law.
Examples of cases where there is an impossibility of dual compliance (see Hogg pp. 16-4 to
16-10.1):
o Multiple Access v. McCutcheon (1982) – insider-trading provisions of provincial
securities law were not in conflict with insider-trading provisions of federal corporate law
because they did not conflict; rather, they provided the same remedy for the same conduct
and so were in harmony, so no conflict despite the duplication. Paramountcy doctrine
did not apply. (Overlap and Duplication) This case is considered an unequivocal ruling
that duplication is not a test of paramountcy, although two cases to the contrary.
o Marine Services International v. Ryan Estate (2013) – presumption of constitutionality
= where it is possible to interpret either the federal law or the provincial law so as to avoid
the conflict that would trigger paramountcy, then that interpretation should be preferred.
o Paramountcy Trilogy 2015 – Alberta v. Molony; 407 ETR Concession Co. v. Canada;
Saskatchewan v. Lemare Lake Logging

Paramountcy – Frustration of Federal Purpose

 Canadian courts also accept a second case of inconsistency where a provincial law would
frustrate a federal law. Where it is possible to comply with both laws but following the
provincial law would frustrate the federal one, this is also a case of inconsistency.
 Examples of inconsistency cases where a provincial law would frustrate the purpose of a
federal law
o Law Society of B.C. v. Mangat (2001) – federal Immigration Act allowed a party to
be represented by a non-lawyer before the Immigration and Refugee Board; but B.C.’s
Legal Profession Act provided that non-lawyers were prohibited from practising law
and appearing before a federal administrative tribunal; not an express conflict because
a party could obey provincial law and hire a lawyer; but the Court found that the
purpose of the federal law was to establish an informal, accessible and speedy process
and that purpose would be defeated if only lawyers allowed to appear
o See also Rothmans, Benson & Hedges v. Saskatchewan (2005)

Paramountcy –Negative Implication

 Recall that only “express contradiction” (including express contradiction and frustration of
federal purpose) suffices to invoke the paramountcy doctrine
 What are some cases that do not attract the doctrine of paramountcy?
 Negative implication (aka “covering the field”) – mere fact that Parliament has
enacted legislation regarding a subject does not mean it intended to “cover the
field” to rule out provincial legislation (absent “very clear statutory language to
that effect”)– recall Multiple Access v. McCutcheon (1982) where the
paramountcy doctrine did not apply to insider-trading regime

a. Covering the field

1. Where the federal Parliament has enacted a particular topic, does
this preclude a province from enacting a different law on the same
topic?
2. No, a province is not automatically precluded from enacting a law
on the same topic just because the federal Parliament has legislated
on it.
3. Where the provincial law does not contradict the federal law but
adds to it or supplements it, it is the provincial rendered in operative
 by the federal law? No, a provincial law is not automatically
rendered inoperative just because it adds to or supplements a federal
law.

 SCC does not infer an inconsistency between federal and provincial laws based on
an imputation that federal law “covers the field’ or carries a negative implication
forbidding supplementary law in the same field. Rio Hotel v NB (1987)
 The court will infer an inconsistency where it concludes that a federal law has a
purpose that would be frustrated by a provincial law.
b. Express Extension (clauses) of Paramountcy
An express covering the field clause would be effective according to Hogg. Example- s88
of the federal Indian Act provides that provincial laws are inapplicable to Indians “to the
extent that such laws make a provision for any matter for which provision is made by or
under this Act”

Paramountcy – Overlap and Duplication

 What are some other cases that do not attract the doctrine of paramountcy?
o Overlap and duplication of subject matter – this is just fine and not a test of
paramountcy; rather, it is the “ultimate in harmony” (see Hogg p. 16-16); this includes
double criminal and civil liability
o Again, recall Multiple Access v. McCutcheon (1982) – provisions of Ontario
securities law relating to insider trading were not rendered inoperative by the
substantially identical provisions of federal corporate law
o Arguments against duplication of federal and provincial laws can have little weight
once overlapping is admitted.

Double Criminal Liability- The existence of overlapping/duplicative penal provisions raise the
possibility that person may be liable to conviction under both federal law and provincial law for
the same conduct.

Double Civil liability – double civil liability is also a possibility under overlapping or duplicative
federal and provincial laws. The Privy Council has upheld double income taxation saying that
federal and provincial taxes “may co-exist and be enforced without cashing”

Short answer is that only express contradiction suffices to invoke paramountcy doctrine.

Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188

Hogg 16.3(b)- Federal Tobacco Act prohibited the promotion of tobacco products, except as
authorization elsewhere in the Act . The act went on to say that “a person may display at retail, a
tobacco product” The Saskatchewan Tobacco Control Act banned the display of tobacco products
in any premise in which persons under the age of 18 years of age were permitted. Court held: the
retailer could comply with both laws , either by refusing to admit persons under the age of 18 or
by not displaying the tobacco products . Any federal frustration- Courts said no- because the
general purpose of the Tobacco Act (address health problems) and the specific purpose of the
permission to display “remained fulfilled”.
 Paramountcy – Effect of Inconsistency
Effect of paramountcy: if a federal law is inconsistent with a provincial law the doctrine of
federal paramountcy stipulates that the province law must yield to the federal law.
o Provincial law must yield to the federal law
o Specifically, the provincial law is “rendered inoperative to the extent of the
inconsistency”
o The doctrine of paramountcy does not affect the operation of those parts of the
provincial law which are not inconsistent with the federal law (unless the parts are
inseparably linked)
o If the federal law is repealed, the provincial law will automatically “revive”
o Note: the doctrine of paramountcy does not serve to “repeal” the provincial law,
because the federal Parliament does not have the power to repeal a provincial law
o Note also: the doctrine of paramountcy does not serve to render the provincial law
ultra vires, invalid or unconstitutional (as this would confuse consistency with validity)
o The paramount doctrine only applies to the extent of the inconsistency.
o If federal law is reapplied- the provincial law will “revive” without any re-enactment.
o Its misleading to describe the effect of a paramountcy doctrine as rendering a
provincial law “inapplicable”-the description is not literally wrong-but it invites
confusion with the doctrine of interjurisdictional immunity. This is the limitation on
the power of the provincial legislatures to enact laws that extend into core areas of
exclusive federal jurisdiction

Application of Federalism Analysis

Canadian Western Bank v. Alberta (2007) – Alberta enacted changes to its Insurance Act to
make federally-chartered banks subject to a provincial licensing scheme governing the promotion
of insurance products; the Act required a “deposit-taking institution” (ie banks along with
provincially-regulated trust companies) to obtain a licence from the province in order to promote
insurance to its customers.
1. Pith and Substance - is it banking (federal)? or insurance (provincial)?
o Pith and substance is insurance and the fact that the banks now participate in the
promotion of insurance does not change the essential nature of the insurance activity,
which falls under provincial jurisdiction
2. Interjurisdictional immunity – should the law be read down so as not to apply to the federal
banks? this doctrine applies where the core competence or a vital or essential part of federal power
would be impaired by a provincial law
o Is the bank engaging in an activity that is vital to banking in promoting insurance?
i. No, because insurance is not at the core of federal banking power
ii. This meant that the doctrine of interjurisdictional immunity did not apply
3. Paramountcy – is there an express contradiction or frustration of purpose between the federal and
provincial laws such that the doctrine of paramountcy should apply?
 No operational incompatibility
 No frustration of federal purpose
 Doctrine of paramountcy did not apply
 See paras. 79-109 of Canadian Western Bank v. Alberta
KEY CASE: Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188 Hogg
16.3(b)- Federal Tobacco Act prohibited the promotion of tobacco products, except as authorization
elsewhere in the Act . The act went on to say that “a person may display at retail, a tobacco product” The
Saskatchewan Tobacco Control Act banned the display of tobacco products in any premise in which
persons under the age of 18 years of age were permitted.

Court held: the retailer could comply with both laws , either by refusing to admit persons under the age of
18 or by not displaying the tobacco products . Any federal frustration- Courts said no- because the
general purpose of the Tobacco Act (address health problems) and the specific purpose of the permission to
display “remained fulfilled”.

Effect of inconsistency- if a federal law is inconsistent with a provincial law the doctrine of
federal paramountcy stipulates that the province law must yield to the federal law.

Effect of Paramountcy:
 The most accurate way of describing the effect on the provincial law is to say that it is
rendered inoperative to the extent of the inconsistency.
 The paramount doctrine only applies to the extent of the inconsistency.
 If federal law is reapplied- the provincial law will “revive” without any re-enactment.
 Provincial law must yield to the federal law
 Specifically, the provincial law is “rendered inoperative to the extent of the inconsistency”
 The doctrine of paramountcy does not affect the operation of those parts of the provincial law which
are not inconsistent with the federal law (unless the parts are inseparably linked)
 If the federal law is repealed, the provincial law will automatically “revive”
 Note: the doctrine of paramountcy does not serve to “repeal” the provincial law, because the federal
Parliament does not have the power to repeal a provincial law
 Note also: the doctrine of paramountcy does not serve to render the provincial law ultra vires,
invalid or unconstitutional (as this would confuse consistency with validity)
 Therefore, the provincial law is “rendered inoperative”

Shell Oil vs. City of Vancouver:

 Facts Council passed resolutions to not do business with Shell as long as shell did business in
South Africa (apartheid). Also declared City a shell free zone.City argues it should not be
reviewable by the courts since it is an exercise of “corporate power.” Shell argues it is outside the
City’s jurisdiction since they are trying to use their municipal power to affect matters outside the
City.
 Issue Can a municipality refuse to do business with a firm because of the conduct of the firm
outside of the municipality?
 Decision Not unless there is a benefit to the City. Reasons Resolutions do not speak to health or
welfare of a city 99. The City is trying to affect matters in another part of the world outside its
territorial limits 99. No doubt 100 Council can have regard for matters beyond its boundaries in
exercising its powers but in so doing any action taken must have as its purpose benefit to the
citizens of the City. The purpose of the resolutions are to affect matters beyond the boundaries of
the City without any identifiable benefit to its inhabitants.
 Ratio Municipalities have the authority to undertake acts relating to a “municipal purpose”. A
“municipal purpose” must have a tangible benefit to a municipality or municipal residents. A
municipality cannot undertake acts outside of a municipal purpose.

BP Oil Vs. City of Vancouver (Big Brother Wins)

Vancouver passes a law that says we will not do business with BP oil and banned all British petroleum
stations throughout the city limits. Can they do that? Frustration of a federal purpose?
International trade and commerce. Provincial law interfering with international trade and commerce.
 PITH AND SUBSTANCE – VALIDITY (STEP 1)
Pith and Substance: “Pith and substance” is the first tool that courts use to determine which level of
government has authority over a certain matter or issue. At its most basic, a pith and substance analysis
asks what the essential character, or “matter”, of a law is. Pith and substance analysis.

 The two-part “pith and substance” analysis determines whether a law falls within the legislative
competence of the legislature that enacted it.
o What is the essential character of the law?
o Does that character relate to an enumerated head of power granted to the legislature in question
by the Constitution Act, 1867?

There are 3 doctrines the courts use to resolve challenges to the validity of legislation:
1. Pith and Substance Doctrine
2. Use if the entire law is being challenged
3. Double Aspect Doctrine
4. Ancillary powers doctrine
a. Use if only part of the law is being challenged
Pith and Substance Doctrine
The pith and substance doctrine is used to determine if a law is in relation to a “matter” that comes within a
“class of subjects” allocated to the enacting order of government.
o If yes, the law is intra vires; if not, the law is ultra vires
o “Classes of subjects” refers to the spheres of jurisdiction over which each level has
been assigned control in ss. 91 and 92 of the Constitution Act, 1867
ANALYSIS
Step 1: Determine the law’s “matter” (Morgentaler, 1993)
 This is done by characterizing the law – identifying its “pith and substance”
 The law’s pith and substance is its dominant or essential feature/character (Morgentaler, 1993)
 Examine two things (Morgentaler, 1993):
o Purpose. PITH – PURPOSE
▪ Intrinsic evidence: evidence from the law itself (Morgentaler, 1993)
• E.g. text of the law, its structure, purpose clauses, preambles
▪ Extrinsic evidence: Why they enacted it? evidence from outside the law itself
(Morgentaler, 1993)
• E.g. related laws, legislative history (although of limited reliability)
o SUBSTANCE -> EFFECT Can be relied upon if relevant and not inherently unreliable
Effects
▪ What is the Primary Effect not the Incidental Efftect (minor issues)?
▪ Determine which power the federal government is actin under
 ▪ Legal effects - refers to how the legislation as a whole affects the rights and
liabilities of those subject to its terms (Morgentaler, 1993)
• Determined from the terms of the legislation itself (Morgentaler, 1993)
• Usually a good indicator of the purpose of legislation (Morgentaler, 1993)
▪ Practical effects - the actual or predicted effect of the legislation in operation
• Unlike legal effects, practical effects are not always relevant (Morgentaler,
1993)
• They are relevant in appropriate cases such as where the practical effects
differ substantially from the purpose and the legal effects  might suggest
the law actually has a different purpose
• Some sort of evidence will be needed for determining practical effects
(Morgentaler, 1993)
o Purpose is often key; effects help illuminate purpose (Morgentaler, 1993)
o Where the law’s effects differ significantly from its purpose, this would suggest that
maybe that isn’t actually the purpose
o It is usually possible to characterize the law in more than one way, and one
characterization will often come within a federal head of power and one will come
within a provincial head of power.
o Thus, how you characterize the law will often determine its validity.
Step 2: Assign the “matter” to one of the classes of subjects in ss. 91 and 92 (Morgentaler, 1993)
 Determine how a law so characterized fits within the heads of power in ss. 91 and 92
 This may involve interpreting the head of power
 If the law is in pith and substance “in relation to” a “matter” that falls within the enacting
government’s jurisdiction, it is intra vires. If not, it is ultra vires.
Note: Incidental effects are permitted
o The pith and substance doctrine permits laws that have “incidental effects” on matters
that fall outside the jurisdiction of the enacting government, provided the law is in pith
and substance in relation to a head of power allocated to the enacting legislature
R v Morgentaler, 1993 SCC – Analysis for Pith and Substance
Facts: Nova Scotia enacted regulations under the Medical Services Act that made it an offence to
perform an abortion outside a hospital. They also enacted regulations denying medical services
insurance coverage for abortions anywhere other than in a hospital. Dr. Morgentaler opened an
abortion clinic and was charged with 16 counts of violating the Medical Services Act. Morgentaler
argued that the regulations are an unlawful encroachment on Parliament’s jurisdiction over criminal
law.
Issue: Are Nova Scotia’s Medical Services Act and the regulations made under it ultra vires the
province of NS on the ground that they are in pith and substance criminal law?
Held: Yes, the Act and regulations are ultra vires the province of NS.
 o The law partially reproduced the federal law struck down by the SCC in 1988, supporting
an inference that it was designed to serve a criminal law purpose
o The legislative history of the law suggested the true purpose of the law was to stop
Morgentaler from opening his clinic (rather than regulation of health services)

DIVISION OF POWERS (STEP 2)

Classification: Which power that law is being enacted under? At the heart of the federal
system in Canada are ss. 91 and 92 of the Constitution Act, 1867
SECTION 91. – Federal Legislative Authority
Anytime the federal government wants to create a law:
Certain Laws Delegated to the Federal Government:
o Two distinct parts:
▪ POGG/Residuary clause
• The federal Parliament may make laws “for the Peace, Order and good
Government of Canada, in relation to all Matters not coming within the
classes of subjects by this Act assigned exclusively to the Legislatures of
the Provinces”
• The effect of this clause is to confer residual power on parliament – so if the
provincial government’s can’t do it, the federal government can.
▪ Classes of subjects
• Assigns exclusive legislative authority over 30 classes of subjects to
parliament
• Many are economic in nature or are related to transportation
• Our focus: POGG, Trade and Commerce, Crim, Indians, Militia,
Public Debt/Property, Military, System of Taxation, Foreign Money,
Naturalization of Aliens, Marriage and Divorce.
SECTION. 92 – Provincial legislative authority
o Assigns exclusive legislative authority over 16 “classes of subjects” to the provinces
o They can govern their own territory, they ca regulate the business in the province.
o Examples: Direct taxation within the province, borrowing the money on the sole credit
of the province, establishments and texture of provincial officials, medical institutions,
Shops, Saloons, Taverns, Auctioneers and licenses in order to raise revenue for
provincial local municipal purposes.
o S. 92(13) – PROPERTY and CIVIL RIGHTS in the provinces has often been
interpreted to capture all of private law. So, in practice, this might be the actual
residuary power because it is so broad.
o Property and civil rights, matters of a merely local or private nature, other important
ones – municipal institutions, admin of justice in province.
 CLASSIFICATION

Description of the “SCOPE” of the competing classes (Proceed to Test sheet for respective
heads of power). Where does the “matter” fit in the heads of power under the Constitution?
Federal Provincial
91(2) Regulation of Trade & 92(7) Hospitals
Commerce 91(2A) 92(13) Property & Civil
Unemployment Insurance 91(10) Rights 92(14)
Navigation & Shipping Maintenance of Justice
91(15) Banking, Incorporation of Banks, Paper 92(16) Matters of Local or Private Nature
Money 91(27) Criminal Law
92(10) Federal undertakings
POGG
Interjurisdictional immunity: It has to be completely within a provincial power or
completely within a federal power, if there is a cross over that law is struck down
completely. (FAILED, Hard to keep both in their corner)

PARAMOUNCY (STEP 3) HOW DO WE RESOLVE? PARAMOUNCY

 BIG BROTHER (Federal Government vs. Provincial government) LITTLE BROTHER
 A conflicting law between the federal government and provincial government.
 The default is that the federal government is going to win every time.

ANALYSIS:
a. IS THERE A TRUE CONFLICT? (Two types) Is there anything to resolve?
i. Operation Incompatibility: by operation of the law it is incompatible with both
the provincial and federal powers. Impossible to satisfy the provincial and federal
power simultaneously. Is there a way for both laws to go ahead.
ii. Frustration of a federal/provincial power: Infringing on somebody’s power. Is it
dominating a provincial or federal law?
1. If the federal law is infringing upon a provincial territory the federal law is
usually going to be limited in other words read down or struck down.
2. If the provincial law is infringing upon a federal power example
international trade and commerce it is wiped out/struck down.
b. WHAT POWERS ARE INVOLVED? Is the pith and substance of the law an
infringement upon a provincial or federal power? Is this conflict incidental? Or dominant?
Is the dominant purpose and effect of this law going to cause issues.
c. Is THERE A WAY TO FIX THIS LAW– if not it gets struct down completely. Can this
law stand
POGG -PEACE, ORDER AND GOOD GOVERNMENT POWER (HOW TO OVERIDE
CHARTER, BRANCH OF HOPE FOR FEDERAL GOVERNMENT) only federal government
has this power.
Definition: Parliament has the power to create any law it deems necessary to maintain peace
order and good governance. There is no limit to this power, whenever the emergency is abated.

Constitution Act, 1867, s.91 (opening words)

 “To make “to make laws for the peace, order and good government of Canada, in relation to all
matters not coming within the classes of subjects of this Act assigned exclusively to the
Legislatures of the provinces…”
 The POGG clause in S91 is a residual power in its relationship with the provincial heads of
power.
 It is a residual power of the federal government ensures that every possible subject of legislation
belongs to one or other of the federal Parliament or the provincial legislatures.
 Thesis- the enumerated head of federal powers are merely examples of peace, order and good
government of Canada; they are not heads of power which exist independently of the opening
words. This finds support in the opening language of s91.
 2 reasons why Hogg rejects the “general theory” and supports the “residual theory” of the
POGG power:
1. The federal list was not just superfluous grammatical prudence; it was compelled
by historical necessity and has independent standing.
2. The second reason it does not accord with the practice of the courts in applying the
power distributing provisions of the Constitution.
 Example: Used for residential school programs/Canadian version of genocide (removed children
from their first nation families and subjected them to abuse, torture, rape, death. They could not
use their aboriginal rights.
 Example: Japanese Internment camps
 Residual power, because it is expressly confined to “matters not coming within the classes of
subjects by this Act assigned exclusively to the Legislatures of the provinces”
 So any matter which does not come within a provincial head of power must be within the power
of the federal Parliament.
 Can be read in conjunction with s. 92(13) (“property and civil rights in the province”) and s.
92(16) of the Constitution Act, 1867 (which provides that the provinces have jurisdiction over
“generally all matters of a merely local or private nature in the province”) – looks a little bit like
a kind of residual power for the provinces too?
 In any event, the distribution of legislative power was meant to be exhaustive (with a few
exceptions)

There are actually three branches of legislative power arising out of the POGG power:
o The “gap” branch
o The “national concern” branch
o The “emergency” branch
Parliament Can Use POGG to Limit Provincial Rights: Under this decision, the JCPC ruled that
Parliament could use POGG to "trump" provincial powers if there is a need for uniform legislation to
address a nationally pressing concern (problematic decision because it was a broad reading of POGG
that expanded it beyond what was originally intended B suppose to be limited if it clromes within a
provincially delegated power).

3 MAIN AREAS IT IS USED:

1. The “gap” Branch- (RARE) Operates to fill in gaps in the division powers, to truly a
residuary power. one office of the POGG power is to fill the gaps in the scheme of distribution
of power. (i.e.- incorporation of companies S.92(11) gives the provinces the power to incorporate
companies with provincial objects). Since there is no equivalent enumerated federal power the
courts have held it falls under POGG power because it is residual in nature. Example: adding the
internet into section 91 or 92, certain things you can and cannot do, cyber bulling. No. They were
drafted broadly for this reason.
 The POGG power is meant to fill gaps in the scheme of distribution of powers
 Rarely invoked, because often a “new” or hitherto unrecognized kind of law
will come within an existing category, such as property and civil rights in the
province (s. 92(13)) or matter of a merely local or private nature in the province
(s. 92(16))
 Which head of power is appropriate depends on the nature of the “new” matter
and the scope which is attributed to the various competing heads of power (of
which POGG is only one)
 Allows for federal legislation in relation to matters that don’t fall under the
enumerated powers under ss. 91 and 92
 They used this for residential school systems.
 They used it for aeronautics, space exploration.
 It is hard to distinguish this from national concern branch.
 Example of a GAP: The Constitution Act, 1867 empowers the provincial
Legislatures to make laws in relation to the “incorporation of companies with
provincial objects” (s. 92(11)), but there is no equivalent enumerated federal
power of incorporation so the courts have held that the power to incorporate
companies with objects other than provincial must fall within the federal POGG
power
 Treaty powers
 Official Languages Act

Russell v. The Queen (1882)

o This case upheld the federal Canada Temperance Act, which regulated alcohol.
o The court found that because temperance (alcohol regulation) was not explicitly assigned
to either level of government, it fell under the GAP branch of POGG.

A.G. Canada v. A.G. Ontario (Local Prohibition) (1896)

o This case again dealt with alcohol regulation but came to a different conclusion.
o The court ruled that liquor control was a matter of provincial jurisdiction under
Section 92(16) (Local Matters) rather than a federal issue under the GAP branch.
 o GAP branch to justify the laws.

Why the GAP Branch is Rarely Used Today

 The GAP branch was more relevant in the early years of Confederation when unassigned
powers were still debated.
 Over time, courts have preferred using the National Concern or Emergency branches for
POGG cases.
 Most modern constitutional disputes focus on whether a matter belongs to the federal or
provincial government, rather than falling into a "gap."

2. The “National Concern Branch”- Declaring war, the “provincial inability test” is used to
describe national concerns. The most important element of national concern is a need for one
national law which cannot be realistically be satisfied by cooperative provincial action because
failure of one province to cooperate would carry with it adverse consequences for the residents of
others provinces. Canada engaged in World War 1 and 2. They are trying to use this to regulate
Netflix.
o Encompasses the idea that some matters of legislation, which originate as local or
provincial, can acquire “national concern” and thereby come within the federal
Parliament’s POGG power
o KEY CASE: A-G Ont. V. Canada Temperance Federation (1946) – if the real subject
matter of the legislation “goes beyond local or provincial concern or interests and
must from its inherent nature be of concern to the Dominion as a whole, then it will
fall within the competence of the Dominion Parliament as a matter affecting the peace,
order and good government of Canada, although it may in another aspect touch on
matters specifically reserved to the provincial legislatures…”
o this is different from the “emergency” branch, to be discussed later
o Allows for federal legislation in situations of national concern – things that go beyond
provincial concerns
o This has the largest potential scope so it has often been the most controversial
o EXAMPLES:
• Aeronautics (Johannesson v The Rural Municipality of West St Paul, 1952,
SCC)
• Radio (Radio Reference, 1932, PC)
• Internet
• Nuclear energy (Ontario Hydro, 1993, SCC)
• National capital region (Munro v National Capital Commission, 1966, SCC)
• Marine pollution (R v Crown Zellerbach, 1988, SCC) GREAT CASE TO
REFERENCE:
 Issue: when does a subject matter of legislation become “the concern of the Dominion as
a whole” so as to satisfy the national concern test?
 A matter of national concern (FIRST PART OF TEST)
1. The “provincial inability test” – when the problem is beyond the power
of the provinces to deal with it, of national concern such the provinces
cannot come to a decision.
 In other words, the need for one national law which cannot realistically be
satisfied by cooperative provincial action because the failure of one
province to cooperate would carry with it adverse consequences for the
 residents of other provinces
 Distinctness – has to be narrow, single issue (SECOND PART OF TEST)
2. In order to qualify as a matter coming within the national concern branch of
the POGG power, a topic must be distinct: “it must have a singleness,
distinctiveness and indivisibility that clearly distinguishes it from
matters of provincial concern and a scale of impact on provincial
jurisdiction that is reconcilable with the fundamental distribution of
legislative power under the Constitution” (R. v. Crown Zellerbach (1988)
This part of this test came from this case.
Note that distinctness is different than newness, which is not helpful (see Hogg
p. 17-16 to 17-19).
(R. v. Crown Zellerbach (1988))
Facts: The case involved Crown Zellerbach Canada Ltd., a company that was charged under the
federal Ocean Dumping Act for dumping wood waste into marine waters without a permit. The
company argued that the federal government did not have the constitutional authority to regulate
pollution in provincial waters.
Key Issues:
1. Federal vs. Provincial Jurisdiction:
o The main issue was whether the federal government had the authority under the
"Peace, Order, and Good Government" (POGG) power of the Constitution
to regulate pollution in all waters, including those under provincial control.
2. Interprovincial and National Concern:
o The Supreme Court ruled that marine pollution is a matter of national concern
and falls under the POGG power, giving the federal government the authority
to regulate it.
Significance of the Case:
 This case expanded federal power over environmental regulation, particularly in marine
pollution.
 It established marine pollution as a matter of national concern, meaning the federal
government has overriding authority in such cases.

The Supreme Court outlined Four Key Requirements for a subject to fall under the national
concern doctrine:

1. Singleness, Distinctiveness, and Indivisibility

o The issue must be separate from provincial matters and must have unique,
indivisible characteristics that make it best suited for national regulation.
o Marine pollution was found to meet this standard because pollution in one area
of the ocean can spread beyond provincial borders.
2. Provincial Inability
o The matter must be beyond the capacity of provinces to effectively regulate on
their own.
o Since marine pollution affects multiple jurisdictions and ecosystems, no single
province could adequately control it.
3. Impact on Federalism (Scale of Impact Test)
o The issue must be of such importance and scope that allowing federal
jurisdiction would not unduly interfere with provincial powers.
 o The court found that federal regulation of marine pollution was justified
because the nature of the problem required national oversight.
4. Affecting Canada as a Whole
o The issue must have a broad national impact, meaning that it must affect
Canada beyond just a local or regional level.
o The court ruled that ocean pollution is an inherently national concern, as
Canada’s marine environment is interconnected.

Impact of the Test

This test became a key precedent for determining when the federal government can step in under
the POGG power. It has been used in later cases involving environmental protection, climate
change, and interprovincial regulation.

Hogg 17.3(b) Le Dain J upheld federal jurisdiction over marine pollution in R v Crown
Zellerbach Canada 1988 - He set out 5 requirements for a matter to qualify as a matter of
national concern. It must have:
o singleness
o distinctiveness
o indivisibility clearly distinguishing it from matters of provincial concern
o the failure of one province to enact effective regulation would have adverse effects
of interests exterior to the province
o the scale of the impact on the provincial jurisdictions is reconcilable with the
fundamental distribution of legislative power under the Constitution.

Carbon Pricing:
The carbon pricing case in Canada, officially known as Reference re Greenhouse Gas
Pollution Pricing Act (2021), was a landmark decision by the Supreme Court of Canada
(SCC) that upheld the federal government's authority to impose a national carbon pricing
system.
What Happened?
 In 2018, the federal government introduced the Greenhouse Gas Pollution Pricing Act
(GGPPA), which set a minimum national price on carbon emissions.
 Provinces that did not implement their own carbon pricing system at the required standard
would have the federal "backstop" system imposed on them.
 Three provinces—Alberta, Saskatchewan, and Ontario—challenged the law, arguing
that it violated their constitutional jurisdiction over natural resources and local matters.

Supreme Court ruled 6-3 in favor of the federal government, deciding that:

1. Climate change is a matter of "National Concern" under the Peace, Order, and
Good Government (POGG) clause.
o The court applied the Crown Zellerbach test and found that carbon pricing is
an issue of singular, distinctive, and indivisible national concern.
o Greenhouse gases (GHGs) have interprovincial and global effects, meaning
no single province can fully regulate them.
2. The federal government has the power to set "minimum national standards" for
carbon pricing.
o Provinces can design their own systems, but the federal government can
enforce a standard if a province fails to meet it.
 3. The law is constitutional because it targets carbon pricing, not broad
environmental regulation.
o The ruling clarified that the federal government was not overstepping into
general environmental policy (which is shared jurisdiction) but was specifically
regulating carbon pricing as a national economic and environmental
strategy.

3. The National Emergency: Allows for federal legislation in relation to national emergencies.
War, famine, insurrection.
1) When pearl harbor happened, Canada railed their troops shipped them off and
immediately started building Japanese interment caps.
2) After 9/11 there was huge discrimination against Muslims.
3) When the emergency is done the the power reverts back to the provinces.

 The POGG power can be used for laws of a temporary nature that are designed to address
an emergency
 This is logical because emergencies are temporary phenomena
 However, in modern Canada, most “national emergency” responses are governed by the
Emergencies Act, which is ordinary legislation, not directly invoking POGG.
 Board of Commerce case (1922) – legislation that prohibited the hoarding of
“necessaries of life”(food, clothing and fuel) was struck down –POGG power was
rejected as authority for the statute on the grounds that only “highly exceptional” or
“abnormal” circumstances would justify the invocation of the POGG power, such as
“War or Famine”
 Toronto Electric Commissioners v. Snider (1925) – POGG power available only in
“cases arising out of some extraordinary peril to the national life of Canada” such as war
A) WAR: Fort Frances case (1923) – wartime price controls by the federal gov during
WWI were constitutional
 Wartime Leasehold Regulations Reference (1950) – wartime rent control by the federal
gov during and after WWII was constitutional
 Japanese Canadians Reference (1947) – deportation of Japanese Canadians was
constitutional
 APPREHENDED INSURRECTION (refers to a perceived or anticipated violent uprising
against the authority of the government)
 October Crisis, 1970 (497 people arrested & detained)
B) INFLATION: Anti-Inflation Reference (SCC 1976) – the Anti-Inflation Act (wage and
price controls) was upheld as an emergency measure, in response to high inflation
Three requirements:
1. Federal Parliament must have a “rational basis” to claim that there is an emergency
o extreme deference
o onus on opponent to establish lack of rational basis
2. Legislation must address the emergency
3. Legislation must be temporary

Parliament has the power to create any laws it deems necessary to maintain peace order
and good government.
 Very Broad
 Case law has narrowed it down.
 o Used in three main areas:
1. Gap filler/no enumerated power (space exploration)
2. National Concern (can be good or bad, ex. Declaring war)
3. National Emergency (9/11, terrorists)
Did not include:
1) Price, profit, and income control [Anti-Inflation Ref.] – economic crisis
2) Environment [Oldman River] – falls under both fed. and prov. heads of power not distinct
3) Treatment of heroin dependency [Schneider] – local matter

Relationship between “National concern” and “Emergency Branch”-thesis by Lederman

(adopted by Beetz J) is that POGG power performs 2 separate functions in the Constitution.
1. First, it gives to the federal Parliament permanent jurisdiction over “distinct subject
matters which do not fall within any of the enumerated heads of s 92 and which by nature
are of national concern.
2. Secondly, the POGG power gives the federal Parliament temporary jurisdiction over all
subject matters needed to deal with an emergency. On this dual function theory- it is not
helpful to regard an emergency as simply being an example of a matter of national concern

POGG Power CANNOT- be used to regulate a particular industry merely because the
industry is nation-wide and important to the national economy. (Insurance Reference)

National Concern National Emergency

Constitutional basis: s. 91 (POGG) Statutory basis: Emergencies Act
Grants lasting power Grants temporary crisis powers
Used in “peacetime” governance Used only in extreme situations
Requires judicial interpretation Requires formal declaration + parliamentary review
PROPERTY AND CIVIL RIGHTS- (Sec. 92 (13))
SCOPE OF POWER: ECONOMIC REGULATION – PROVINCIAL POWER

Section 92(13) gives provinces the exclusive power to legislate on matters related to property
and civil rights within their own territory. This is one of the broadest and most important
provincial powers in Canada’s federal system.

Scope of Section 92(13)

It covers a wide range of legal and economic activities, including:
 Contracts (e.g., business agreements, employment contracts)
 Torts (civil wrongs) (e.g., personal injury law, defamation)
 Property law (e.g., land ownership, leasing, mortgages)
 Business and trade within a province
 Regulation of professions and industries (e.g., real estate, insurance)

Why Is It Important?
 Section 92(13) is key to provincial economic regulation, giving provinces control over
their own industries and legal systems.
 It has often been a point of conflict between federal and provincial governments,
especially when federal laws (like environmental regulations or labor laws) affect business
and trade within a province.

Conflicts with Federal Power

 The federal government has broad economic powers under Section 91, such as:
o Trade and Commerce (Section 91(2)) – governing interprovincial and
international trade.
o Peace, Order, and Good Government (POGG) – allowing intervention in
national concerns like climate change.
 Sometimes, federal laws can overlap with provincial economic regulation, leading to
legal disputes (e.g., carbon pricing, pipeline regulation)

MAIN QUESTION: What falls within the scope of s. 92(13) “Property & Civil Rights in the
Province”?
1. Provinces can regulate control of all goods within province including goods originating
outside the province if all are treated the same (Shannon)
2. Provinces can regulate production, prima facie w/in provincial jurisdiction (MB EGG)
3. Provinces can regulate intra-provincial marketing (Shannon, Carnation, Agricultural
Products)

Parsons: Business and contractual issues that take place wholly within the provinces fall under s.
92(13), while international, interprovincial and general trade and commerce issues fall under s.
91(2). Federal Parliament does not have the right to regulate business within a province.
 Just because something relates to trade or commerce doesn’t mean the federal government
can regulate it. If it’s a local or provincial business matter, it stays with the province
under s. 92(13).
 The federal Parliament cannot regulate business entirely within a province, but it does control
areas like:
 Interprovincial trade
 Competition law
 Banking and finance
 Telecommunications and broadcasting

Case Tests for Provincial Economic Regulation:

Carnation Co Ltd. v. Quebec Agricultural Marketing Board [1968]Are the effects of provincial
economic regulation on trade and commerce outside the province only INCIDENTAL?
 YES or NO (If NO, the provincial legislation is ultra vires)
 YES - In Carnation, the effects on trade outside Quebec were ruled to be incidental. As
long as the law is truly about provincial matters (like agriculture within Quebec), it can
have minor impacts on interprovincial trade without stepping on federal toes.
The Supreme Court of Canada upheld the Quebec Agricultural Marketing Board’s authority,
ruling that:
1. Provincial governments can regulate the marketing of agricultural products within
their province.
2. Since Carnation was operating within Quebec, it had to comply with Quebec’s
marketing regulations.
3. However, the ruling also clarified that provinces cannot regulate interprovincial trade
—that remains under federal jurisdiction.
Significance of the Case
 Confirmed that provinces can regulate businesses operating within their borders, as
long as it does not affect interprovincial trade.
 Reinforced the division of powers between provincial and federal governments under
Section 92(13) (Property and Civil Rights) and Section 91(2) (Trade and Commerce).
 Similar to later cases involving agricultural marketing boards, such as Dairy Farmers of
Canada v. Canada (1997).

Manitoba (AG) v. Manitoba Egg & Poultry Association [1971]Is the provincial economic
regulation aimed at regulating INTERPROVINCIAL (province to province) trade and commerce?
 Facts: Manitoba tried to regulate the marketing of eggs and poultry through a provincial
scheme. It included restrictions on eggs coming into Manitoba from other provinces
(like Ontario). The goal was to protect Manitoba farmers by controlling supply and price
— essentially, blocking interprovincial imports unless approved.
 YES, or NO (If YES, the provincial legislation is ultra vires)
 The Court struck down a provincial law because it was not incidental — it directly
targeted interprovincial trade, which only the federal government can regulate.

Agricultural Products Marketing Act [1978]Is the provincial economic regulation part of a
federal scheme aimed at interprovincial trade and commerce?
 YES NO
 (If YES, the provincial legislation may be valid)
 The ruling stated that:

1. Provinces cannot restrict interprovincial trade—that power belongs exclusively to

the federal government.
2. The Manitoba law violated Section 91(2) (Trade and Commerce) because it
prevented egg producers from selling outside the province.
3. While provinces can regulate local industries, they cannot impose barriers to trade
between provinces.

Significance of the Case

 Strengthened federal power over interprovincial trade, reinforcing that only
Parliament can regulate trade between provinces.
 Limited provincial marketing board powers, ensuring they cannot block or restrict
the free flow of goods across provincial borders.
 Similar to other cases like Carnation Co. Ltd. v. Quebec (1968), which also upheld
federal authority over interprovincial commerce.
 The "pith and substance" of the law was to control interprovincial trade, not to regulate
local business — and thus, it didn’t fall within s. 92(13), which is limited to local property
and civil rights.

DOES THE “MATTER” FALL WITHIN THE SCOPE OF S. 92(13)? YES or NO?
 What is the law really about?
The court looks at the main purpose (or "pith") of the law and what it's fundamentally concerned
with.
 Is it primarily about local matters?
If the law is mainly concerned with local issues like property, business operations, or civil rights
within the province, it's likely within the scope of Section 92(13).
 Incidental effects?
If the law has incidental effects on interprovincial or international trade, as long as the main focus
is local, the law can still fall within provincial jurisdiction.

Property: Provincial Power

 Define: Provinces have the right to govern all property and the businesses that operate within
their borders.
 Property can span different things: If your cabin is in Alberta, you pay Alberta taxes and are
subject to Alberta law. Where the property is located.

General Rule: The creation of property rights, their transfer, and their general characteristics are
within property and civil rights in this province. The law of real and personal property-
landlord –tenant, trusts, wills, succession on intestacy, conveyancing and land use planning are
provincial power.

EXCEPTION: If that international trade is not your primary source of income and is an
merely incidental case then you are fine. The violation will be considered an exemption.
 When a provincial regulation has incidental effects on trade, but the regulation’s true
focus is local (for example, local business practices), the court might allow it without
finding a constitutional violation, as long as the impact on trade is incidental and not the
 main goal of the regulation.

Civil Rights:
 Your ability to work in a province, get income.
 Ex: Driver license, schooling, every provinces citizenship is different. Parallel parking is one
of the federal mandates that everyone has to meet. Federal power is not completely out of the
picture.
 Federation of law societies govern the mandatory minimum requirements of law schools.
 Provinces can govern what happens in their own borders.
 If a business ships a box of cupcakes to another province it is a one time order. it is not a multi
provincial company. If the individual is selling to major international retail outlets it will be a
problem for provincial license.
 If you start getting into the trucking business you incorporate only within Ontario, if you
branch off to BC you change your business model.

General Rule in S.92(13) is used in an older stricter sense. It does not include fundamental civil
liberties of belief and expression. My provinces laws impinge on those liberties, but a law whose
pitch and substance is the restraint of belief or expression does not come within property and civil
rights in the province.
o This is the most important and most expansive provincial head of power
o Some of the principal subject matters it embraces:
 Law of property, apart from patents, copyrights and federal public
property
 Tort law, including statutory creation of civil causes of action
 Contractual transactions within a province
 Family law (adoption, custody, support, property division) apart from
marriage and divorce (s. 91(26))
 Labour law, apart from federal public & private sectors
 Professional regulation
 Highway traffic
 Intraprovincial marketing and retail transactions
 Consumer protection
 Law of succession (wills, estates)

Property and Civil Rights - Insurance

 An historical battle between the federal Parliament & the provincial Legislatures to regulate
insurance; unlike banking, insurance is not specifically mentioned in the Constitution Act,
1867, but it is also an industry that first attracted regulation
 Issue: under which head of power does insurance regulation fall?
 Answer: Both

Provincial power
 Regulation of terms of contract (Citizens’ Insurance v. Parsons (1881)) = property and
civil rights
 Regulation of a particular industry (Insurance Reference (1916)) = property and civil
 rights
Federal power
 Statutes governing British and foreign companies, federally-incorporated companies
and, on a voluntary basis, provincially-incorporated companies = trade and commerce

Property and Civil Rights – Business in General

 The insurance cases established that regulation of business was ordinarily a matter
within property and civil rights in the province
 Note that there are Exceptions:
o Some federal industries are within federal power because they are enumerated
in S. 91, such as navigation and shipping, banking
 Some industries fall within federal jurisdiction under the POGG power,
such as aeronautics, the production of atomic energy
 Other federal powers confer a limited power to regulate business, such
as trade and commerce, taxation, criminal law
 See Hogg p. 21-9 for the gaps in federal power

Property and Civil Rights – Labour Relations (Always Provincial)

 The regulation of labour relations over most of the economy is within provincial
competence under property and civil rights in the province
 Leading case is Toronto Electric Commissioners v. Snider (1925) – Privy Council
rejected a federal attempt to regulate labour relations (trying to prevent lockouts and strikes
through compulsory conciliation) – Canada not happy about this decision
 Issue: is there any room for federal power in labour relations?
 After Toronto Electric Commissioners v. Snider, the federal Parliament amended its
labour legislation to apply to those industries within the legislative authority of the
federal Parliament
o Issue: can the federal Parliament regulate labour relations in those industries
which were otherwise within federal competence? i.e. navigation and shipping,
interprovincial transportation and communication, etc.
o The Supreme Court of Canada ruled that federal Parliament could regulate
labour relations within industries under federal jurisdiction. The key idea here
is that certain industries (such as railways, interprovincial transportation,
telecommunications, etc.) are under federal jurisdiction (specifically under
Section 91 of the Constitution Act, 1867), and federal powers extend to labour
relations within these industries.
 Stevedores Reference (1955) – a federal law applying to “businesses carried on for or
in connection with navigation and shipping” was valid; the case stands for the
proposition that the federal Parliament has the power to regulate employment in
works, undertakings or businesses within the legislative authority of federal Parliament
o Note that the issue will be whether or not a particular bargaining unit of
employees is an integral part of an undertaking that is within federal
jurisdiction (i.e. the fact that employees are engaged in the construction of a
runway at an airport will not sweep them into federal jurisdiction if their work
is simply construction, unrelated to the tasks of design or operation that would
be an integral part of aeronautics – See Hogg pp. 21-13 to 21-14)
o Issue: in “federal sectors” of the economy, where there is federal jurisdiction
over labour relations, is the federal jurisdiction exclusive or is it concurrent
 with that of provincial Legislatures?
o The Industrial Relations and Disputes Investigation Act (IRDIA) was a
federal law governing labor disputes in Canada.
o The question before the court was whether the federal government had the
authority to regulate labor relations for stevedores (dockworkers handling cargo at
ports) and other industries.
o Some provinces challenged the federal government's power, arguing that labor
relations fall under "Property and Civil Rights" (Section 92(13)), making it a
provincial matter.

The Supreme Court’s Decision

The court ruled that:
1. Labor relations are generally a provincial matter under Section 92(13) (Property and
Civil Rights) and Section 92(16) (Local Matters).
2. However, some industries fall under exclusive federal jurisdiction—including stevedores,
because:
o Stevedoring is integral to shipping, which is a federal power under Section 91(10)
("Navigation and Shipping").
o Ports and shipping operations involve interprovincial and international trade,
making them subject to federal regulation.

Significance of the Case

 Confirmed that labor relations are usually provincial, but federal jurisdiction applies to
industries that are integral to federal powers (like ports, railways, airlines).
 Set a precedent for future labor law cases, including those involving telecommunications,
nuclear energy, and pipelines.
 Helped define the division of powers between federal and provincial governments in labor
disputes.

 Bell #1 (1966); Bell #2, (1988) – In “federal sectors” of the economy, federal jurisdiction over
labour relations is exclusive and not concurrent with provincial Legislatures.
 Both cases involved federal versus provincial jurisdiction over labor relations in industries
regulated by the federal government.
 The Supreme Court ruled in favor of Bell Canada, stating that:
1. Telecommunications is a federal jurisdiction under s. 92(10)(a) ("Works and
Undertakings Connecting Provinces").
2. Provincial labor laws do not apply to federally regulated industries, like
telecommunications, railways, airlines, and banking.

Significance of Bell #1
 Set the precedent that labor relations in federally regulated industries fall under
federal jurisdiction.
 Protected national industries from provincial interference.
 Became a key ruling for industries like broadcasting, railways, and banking.

Significance of Bell #2
 Confirmed and expanded Bell #1—provincial labor and workplace safety laws do not
apply to federally regulated industries.
  Strengthened federal exclusivity over labor laws in industries like telecom, airlines,
railways, and banking.
 Became a landmark decision affecting labor relations in federal industries.

Anti-Inflation Reference (1976) – federal jurisdiction over labour relations will extend
outside the federal sectors of the economy temporarily in times of national emergency (but
provincial powers will remain concurrent)
The Supreme Court upheld the Anti-Inflation Act, ruling that:
1. The law was valid under the federal emergency power (POGG doctrine).
2. Parliament can temporarily regulate provincial matters during a national economic
crisis.
3. The emergency power does not require a war or natural disaster—economic
instability can also justify federal intervention.

Significance of the Case

 Expanded the "Emergency Branch" of POGG – Confirmed that economic crises can justify
temporary federal intervention in provincial matters.
 Set a precedent for future federal economic regulations, such as the carbon pricing case
(References re Greenhouse Gas Pollution Pricing Act, 2021).
 Reinforced federal supremacy in times of crisis, but also limited the emergency power to
temporary situations.

Property and Civil Rights – Securities Regulation

o The provinces have the power to regulate the trade in corporate securities as a matter of
property and civil rights in the province
o Reference re Securities Act (2011) - proposed federal Securities Act to nationally regulate
the Canadian securities industry was struck down by the SCC (note the comparison to
competition law arising out of General Motors v. City National Leasing)
o However, recently in Reference re Pan-Canadian Securities Regulation (2018) SCC 48, the
Supreme Court of Canada ruled that a proposed co-operative pan-Canadian securities regulator
is constitutional: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17355/index.do

Property and Civil Rights – Property

 The creation of property rights, their transfer and their general characteristics are within
property and civil rights in the province
o Includes the law of real and personal property (including landlord and tenant, trusts
and wills, succession on intestacy, conveyancing, land use planning)
 Can a province control foreign ownership of land?
 What about heritage property?

TRADE AND COMMERCE- Federal Power (International that goes across Provincial
Lines) (S. 91(2))
 It is the power of parliament to regulate the trade and commerce interprovincially and
 internationally.
 Big brother has the power to regulate the importation and exportation of goods in and out of
the country. They have the power to regulate the trade between two provinces and/or multiple
provinces.
KEY: What happens in Alberta stays in Alberta but the minute that starts to go outside the
border it turns into trade and commerce.
 If the pith and substance of that thing crosses provincial or international lines it is regulated by
Trade and Commerce.

S. 91(2) of the Constitution Act, 1867 confers upon the federal Parliament the power to make
laws in relation to “the regulation of trade and commerce” (which sounds broad)
 Issue: how does this relate to the provincial power under s. 92(13) over “property and civil
rights in the province”?
o These powers appear to overlap (ie trade and commerce is carried on by contracts
which give rise to civil rights over property)
o However, the courts have narrowed both powers so there is no overlap (a process of
“mutual modification”)
o Let’s first examine the trade and commerce power…

 Provincial power is confined to Intraprovincial Trade and Commerce under “property and
civil rights in the province” (s. 92(13)) (i.e. local; within the province). Within a province

 Federal trade and commerce power is confined to:

o Interprovincial (Between provinces) or international trade and commerce, and
o “general” trade and commerce.
Citizens Insurance Co. v. Parsons (1881), Hogg p. 20-2.
What Happened?
 Ontario passed a law regulating fire insurance contracts, requiring specific policy terms to
protect consumers.
 Citizens Insurance Co., a federally incorporated company, refused to follow Ontario’s law,
arguing that:
o Insurance falls under "Trade and Commerce" (s. 91(2)), which is a federal power.
o Only the federal government could regulate insurance.
 Ontario defended the law, arguing that insurance contracts fall under "Property and
Civil Rights" (s. 92(13)), a provincial power.

Judicial Committee of the Privy Council (JCPC) Decision (1881)

Ruled in favor of Ontario, stating that:
1. Insurance contracts are part of "Property and Civil Rights" (s. 92(13)), so
provinces can regulate them.
2. "Trade and Commerce" (s. 91(2)) applies to large-scale, national economic
regulation, not everyday business contracts like insurance.
3. Limited federal power over business regulations, strengthening provincial
authority over commercial contracts.

Significance of the Case

 Limited the federal "Trade and Commerce" power, restricting it to broad economic
 regulations, not individual business contracts.
 Strengthened provincial power over insurance, business regulations, and contracts.
 Key precedent in Canada’s division of powers, influencing later cases on federal vs.
provincial economic authority.
 Early cases were decided by the Privy Council, which interpreted the power very
narrowly:
 Issue: when does trade and commerce become sufficiently interprovincial so as to come
within the federal power? Trade and commerce is sufficiently interprovincial (and
therefore under federal power) when it:
o Crosses Provincial Borders: If goods, services, or activities move between
provinces, it becomes interprovincial trade.
Example: A manufacturer in Ontario shipping products to B.C.
o Is Part of an Interprovincial Undertaking: If a business is part of a larger,
national or interprovincial operation, the entire undertaking can fall under
federal regulation.
Example: Telecom companies like Bell or Rogers, operating in multiple provinces
(see Bell #1 and Bell #2 cases).
o Has a National Character or Economic Scope: Even if the business operates
locally, if its economic impact or regulatory importance is national, it may fall
under federal trade power.
Example: In General Motors v. City National Leasing (1989), the Supreme Court
allowed federal competition law to apply broadly because it had national
economic significance.
o Involves Interprovincial Supply Chains or Markets: Even localized production
or sales can be federally regulated if they are interdependent with interprovincial
supply chains. Example: In Manitoba Egg Reference (1971), Manitoba’s attempt
to restrict eggs from being sold outside the province was struck down —
interprovincial trade is a federal matter.

 The Insurance Reference (1916) – federal Insurance Act of 1910 purported to establish a
licensing regime for insurance companies; Privy Council struck it down and held that the
federal Parliament could not enact a national insurance law (licensing regime) simply because
insurers are located within various provinces
 Toronto Electric Commissioners v. Snider (1925) – Privy Council rejected the federal trade
and commerce power as support for federal labour laws (Canada not happy about this at the
time)
 The King v. Eastern Terminal Elevator Co. (1925) – the Privy Council struck down a
statute that regulated the grain trade (even though most grain was exported)
 The Margarine Reference (1951) – federal prohibition on the manufacture, sale or
possession of margarine (for the purpose of protecting the dairy industry) was invalid because
it proscribed transactions that could be completed within a province; note that a provision that
prohibited the importation of margarine was upheld as a valid exercise of the trade and
commerce power

In more recent cases, after appeals to the Privy Council were abolished, the Supreme Court of
Canada started to recognized an expanded trade and commerce power for the federal Parliament

 Murphy v. CPR (1958) – the SCC upheld the validity of the federal Canadian Wheat Board
 Act, which provided for the compulsory purchase by the Canadian Wheat Board of all grain
destined for markets outside the province of production, and for the marketing, pooling of
proceeds and equalizing of the return to producers
 R. v. Klassen (1959) – Manitoba CA upheld validity of the Canadian Wheat Board Act to a
purely local work; Application to intraprovincial transactions was incidental to the principal
purpose of regulating interprovincial and export trade in grain (leave to SCC refused)
 Caloil v. AG Canada (1971) – SCC unanimously upheld a federal prohibition on the
transportation or sale of imported oil west of the Ottawa Valley; again, incidental effects on
intraprovincial part was ok

 Looks like the courts will grant this leeway for commodities like grain and oil which flow
across provincial lines – this interprovincial flow enabled the courts to uphold the regulation
of intraprovincial transactions on the grounds that such regulation was incidental to the main
object of regulating interprovincial flow (recall incidental effects doctrine)
 If these goods regularly cross borders, regulation of intraprovincial (within-province)
transactions might be allowed as a necessary part of regulating the whole system
 This idea comes from the Incidental Effects Doctrine:
If a law’s main objective is regulating interprovincial trade, courts may allow incidental
effects on intraprovincial trade.
 Courts favor federal regulation when a commodity moves across provinces.

 But what about the Dominion Stores v. The Queen (1979) (apples) and Labatt Breweries v.
AG Canada (1979) (beer)? – see Hogg pp. 20-9 to 20-11.

Dominion Stores v. The Queen

Issue: Did the federal government have the constitutional power to regulate pricing under the
Food and Drugs Act?

Decision:
The Supreme Court of Canada upheld the federal law.
 The Court ruled that the price control was valid under the criminal law power (s. 91(27)),
since it was linked to public welfare and consumer protection.
 Even though price regulation generally falls under provincial jurisdiction, this specific
regulation was part of a broader scheme to protect consumers from misleading or harmful
pricing practices.

Significance:
Expanded the scope of the federal criminal law power – The case reaffirmed that federal laws
could regulate economic matters if the law’s primary goal was protecting public welfare rather
than merely regulating business.

Set limits on provincial power over commerce – Even though pricing regulations usually fall
under provincial jurisdiction, the federal government can step in when health, safety, or
consumer protection are involved.

General” Trade and Commerce

 Recall from Citizens Insurance Co. v. Parsons that the federal trade and commerce power is
 confined to:
o Interprovincial or international trade and commerce, and
o “general” trade and commerce affecting the whole Dominion.
 Originally, the “general” category of trade and commerce had been consistently rejected as a
basis for federal policies of economic regulation (as in Insurance Reference (insurance
industry regulation), Toronto Electric Commissioners v. Snider (labour relations), The King v.
Eastern Terminal Elevator Co. (grain trade), the Margarine Reference, as examples).
 That is, until 1989: General Motors v. City National Leasing (1989)…

General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R.641

S.91(2) Federal Power over trade over regulation of trade and Commerce
S.92(13) “Provincial power over “property and civil rights in the province”
The interpretive problem for Canada lay in accommodation of the federal power over the
regulation of trade and commerce s91(2) with the provincial power over “property and civil
rights in the province” s92(13)
Despite board language in this clause, it has turned out to be much more limited power
then its American cousin due to judicial interpretation.
The courts by process of mutual modification have narrowed the two classes of subjects so as to
eliminate the overlapping and make each power exclusive.
Parsons Case- it has been accepted that intra-provincial trade and commerce is a matter within
provincial power, under “property and civil rights in the province” (s92(13)
Federal trade and commerce power is confined to 1) interprovincial trade or international
trade and 2) commerce and “general” commerce in 91(2)
Hogg 20.2(b) Interprovincial Provincial or International Trade and Commerce
There is a strong argument that whenever a market for a product is national (or international) in
size as opposed to local, there is a strong argument that effective regulation of the market can only
be national says Hogg see Caloil v AG Can (1971) Canadian decisions have not gone that far yet
like the US.
Cases supporting Hoggs Statement:
Egg market in Re Agricultural Products Marketing Act (1978)- federal marketing was upheld.
Chicken market in Federation des producteurs v Pelleand (2005) the court upheld a federally
imposed quota on each of the provinces without the regard for the destination of the product.

General Trade and Commerce

 Until General Motors- the general category of trade and commerce had been rather
consistently rejected as a support for federal policies of economic regulation.
 General Motors- Dickson CJ held that the combines Investigation Act (now the
competition Act) was a valid exercise of the general trade and commerce power. He applied
the Vapor Test- consists of 3 elements

FACTOR TEST - SOMETIMES NOT SO CLEAR CUT: GENERAL MOTORS TEST

(there are occasions whether or not it is property/civil rights or trade and commerce) There
are certain industries that we don’t know if it’s truly going to be governed by T/C or P/C.
1. The presence of a regulatory scheme- Has the parliament created a body or an agency to
regulate. If there is one then it’s likely trade and commerce if not property and civil rights.
2. The oversight of a regulatory agency” and (Does that agency have the power to enforce
the law if they do its Trade and Commerce if not Property and Civil rights.
 3. Is this agency concerned with this agency as a whole or one geographical area of that
industry? “with trade as a whole rather than with a particular industry. If they are
concerned with the agency as a whole T/C.

4. In order for this agency to function properly or effectively all the provinces need to join in
or have some say. ‘the legislation should be of a nature the provinces jointly or
severally would be constitutionally incapable of enacting’ All the provinces as a whole
needs to get involved. It would make it T/C if all provinces get involved.

5. If we don’t include one of the provinces the whole regulation collapses. If a single province
drops out the whole point of this agency drops out. “the failure to include one or more
provinces or localities in a legislative scheme would jeopardize the successful
operation of the scheme in other parts of the competition. If it collapses, then T/C

 Note: The General Motors Case had all five elements present.
 Note: the “general” trade and commerce power authorizes the regulation of intraprovincial
trade
 Of course, there would be no need for a “General” branch of trade and commerce if it did not
extend beyond interprovincial and international trade
 The SCC made it clear that an underlying reason was provincial inability – competition cannot
be successfully regulated by federal legislation which is restricted to interprovincial trade
(highlighting the importance of the 4th and 5th indicator of federal authority, set out in the
previous slide)
 See also Kirkbi v. Ritvik Holdings (2005) – LEGO vs Mega Bloks re federal Trade-marks
Act; legislation was upheld because it met the five criteria in General Motors v. City National
Leasing – See Hogg p. 20-17 to 20-18.

Reference re Securities Act (2011) - proposed federal Securities Act to nationally regulate
the Canadian securities industry (by way of an opt-in provision) was not authorized by the
“general” branch of the trade and commerce power
o General Motors criteria (1) (general regulatory scheme) and (2) (the oversight of a
regulatory agency) were satisfied;
o However, (3) (trade as a whole) and (5) (whether legislative scheme is such that the failure
to include one or more provinces would jeopardize successful operation in the rest of the
country) were not met;
o (provincial inability) was satisfied in part.
o But recently….“SCC rules that a national securities regulator is constitutional” =
November 9, 2018
o The Supreme Court of Canada ruled that a proposed co-operative pan-Canadian securities
regulator is constitutional, overturning a finding of the Quebec appellate court
o Reference re Pan-Canadian Securities Regulation (2018) SCC 48: https://scc-
csc.lexum.com/scc-csc/scc-csc/en/item/17355/index.do

CRIMINAL LAW
Constitution Act, 1867, s.91(27), s.92(15)
Hogg, chapter 18, “Criminal Law”
 Federally, s. 91(27) of the Constitution Act, 1867 confers on the federal Parliament the power
to make laws in relation to “the criminal law, except the constitution of courts of criminal
jurisdiction, but including the procedure in criminal matters”
 The criminal law of Canada is codified in one federally-enacted Criminal Code
 Provincially, s. 92(14) of the Constitution Act, 1867 confers on provincial Legislatures the
power to make laws in relation to “the administration of justice in the province, including
the constitution, maintenance and organization of provincial courts, both of civil and
criminal jurisdiction, and including procedure in civil matters in those courts”
Authorizes provincial policing and prosecution of offences under the Criminal Code
 Correctional institutions
o S. 91(28) – the federal Parliament has jurisdiction over “penitentiaries”, which holds
offenders sentenced to imprisonment of two years or more
o S. 92(6) – the provinces have jurisdiction over “prisons”, which hold offenders
sentenced to imprisonment for less than two years
 Provincial offences
o S. 92(15) – provinces can make laws in relation to the imposition of a punishment by
fine, penalty or imprisonment for enforcing any law of the province
o In order words, provinces have an ancillary power to enact penal laws enforcing
otherwise valid provincial laws
o
Defining Criminal Law
o Issue: s. 91(27) confers on the federal Parliament the power to make laws in relation to “the
criminal law”… How to define “criminal law”? What are the concerns with how to define it?
Prohibition plus a penalty.
o Margarine Reference (1951) – a law that prohibited the manufacture, importation or sale of
margarine (the purpose of which was to protect the dairy industry) – is this law a “criminal
law”? In theory, it might belong because it is a criminal form of prohibition coupled with a
penalty
o But the Court said that the economic object of protecting an industry made the law in pith and
substance in relation to property and civil rights in the province.

Significance
The SCC struck down the margarine ban as unconstitutional.
 The Court ruled that for a law to be valid under the federal criminal law power (s. 91(27)),
it must have a legitimate "criminal purpose", such as health, safety, or morality.
 The margarine ban was purely economic and intended to protect the dairy industry, not
the public.
 Since the law did not serve a legitimate criminal law purpose, it was outside federal
jurisdiction.
 Limited Federal Criminal Law Power – The ruling clarified that the federal government
cannot use criminal law power to enforce economic protectionism. Laws must have a true
criminal purpose, such as public health, safety, or morality.
 Reinforced Provincial Economic Control – Since regulating food products without a
health-related justification is an economic matter, it falls under provincial jurisdiction (s.
92(13)).
 Influenced Future Economic Regulation Cases – Courts now require a clear criminal
purpose when assessing federal economic laws under s. 91(27).
So the Margarine Reference added a THIRD ingredient for a law to fit the definition of
“criminal law”
1. The law must establish a prohibition;
2. The law must carry a penalty; and
3. The law must be for a valid (typical) criminal public purpose.
 No List Given However - Some public purposes that would qualify: “public
peace, order, security, health, morality…” (note that the definition by the court
was not exhaustive)
o This does not mean that the criminal law cannot serve economic ends

Issue: is the “harm principle” a requirement of a valid criminal law?

R. v. Malmo-Levine (2003) – at issue was the validity of the criminalization of the possession of
marijuana (something that did not, it was argued, cause any harm)
o The Court rejected the argument that the “harm principle” was a requirement of valid
criminal law; harm to the accused and moral concerns were adequate bases for the enactment
of the law (which did not depend on harm to others)
o Doesn’t matter if no one’s harmed. The ruling reaffirmed that the government does not need
conclusive proof of harm to justify criminalizing substances.

Re Assisted Human Reproduction Act (2010) – the SCC was unanimous that absolute
prohibitions of immoral or risky practices associated with assisted human reproduction (such as
the sale and purchase of human embryos) was a valid exercise of Parliament’s criminal law
power, but the SCC divided on whether qualified prohibitions (such as those activities carried
out under licence) were within the criminal law power (and the majority held that they were not)
 Are these qualified within the criminal law power of parliament or a health law privy to the
provinces?
 Valid Federal Provisions (Upheld) – The Court ruled that the federal government could
criminalize certain unethical reproductive practices, such as:
o Paying for surrogacy
o Buying and selling sperm/eggs
o Creating human-animal hybrids
o Cloning
 Invalid Federal Provisions (Struck Down) – Other provisions, such as licensing and
regulating fertility clinics, medical professionals, and lab procedures, were not valid
under criminal law. These were matters of health care administration, which fell under
provincial jurisdiction.
 Significance:
o Clarified the Limits of Federal Criminal Law Power (s. 91(27)) – The ruling
reaffirmed that while Parliament can criminalize harmful practices, it cannot
regulate health care administration under the guise of criminal law.
o Strengthened Provincial Control Over Health Care (s. 92(7)) – Provinces gained
greater control over medical regulation and reproductive services, reinforcing their
jurisdiction over health and professional licensing.
o Set Precedent for Future Federal Health Laws – This case influenced later
decisions on federal health regulations, requiring the government to justify health-
related laws under criminal law powers rather than general regulatory authority.
Criminal Law-Food and Drugs
Margarine Reference (1951) - a federal law that prohibited the manufacture, importation or
sale of margarine (the purpose of which was to protect the dairy industry) was struck down on
the basis the economic object of protecting an industry made the law in pith and substance in
relation to property and civil rights in the province
 The statute was struck down even though the preamble asserted that margarine
was “injurious to health” (which, if true, would have satisfied the requirement
of a typically criminal public purpose – the federal government admitted that it
was not true)
Labatt Breweries v. AG Canada (1979) – the SCC held that part of the federal Food and
Drugs Act that authorized regulations prescribing compositional standards for food was
unconstitutional (in this case, the amount of alcohol in beer vs. light beer)
o The SCC found that, while the federal government could enact laws for the protection
of health, the alcoholic requirement for light beer was not related to health
o The SCC also found that the federal government could enact laws for the prevention of
deception, but that the compositional standards for light beer could not be supported on
this ground either
Illicit Drugs
o Federal Controlled Drugs and Substances Act = prohibits the production,
importation, sale and possession of various illicit drugs
o This federal act has been upheld as a criminal law
o Note: that the Act itself empowers the federal Minister of Health to grant exemptions
from the prohibitions in the Act if it is the opinion of the Minister that the exemption is
necessary for a medical or scientific purpose or is “otherwise in the public interest”
o Some examples where criminal law and health collide:

Canada v. PHS Community Services Society (2011) (Insite)

Could the federal government shut down Insite, a safe injection site in Vancouver, by refusing
to renew its exemption under the Controlled Drugs and Substances Act (CDSA) — or would
doing so violate the Charter rights of those who use it?

The Court ruled in favor of Insite and ordered the federal government to grant the exemption.
Key Findings:
1. Section 7 of the Charter was violated
o Closing Insite would endanger the lives and health of people who use drugs.
o Denial of the exemption was arbitrary and unjustified — not consistent with
principles of fundamental justice.
2. Federal criminal law (CDSA) is valid, but its application in this case was
unconstitutional
o The law itself was not struck down.
o But the government’s refusal to grant an exemption was unreasonable, given
the evidence of life-saving benefits.
3. Health is a shared jurisdiction (federal + provincial)
o The court supported cooperative federalism, saying health initiatives like
Insite fall within provincial powers, even if they overlap with federal laws.

Significance:
 Landmark victory for harm reduction and public health
  Set a precedent for other safe consumption sites in Canada
 Reinforced that governments must consider the Charter when enforcing criminal law,
especially when lives are at risk
 Showed that Section 7 (life, liberty, security) protects access to essential health services

Schneider v. The Queen (1982)

Did British Columbia’s Heroin Treatment Act, which allowed mandatory treatment for
heroin addiction, fall within provincial jurisdiction, or was it an invalid attempt to legislate
criminal law, which is federal?

The law was upheld as valid provincial legislation under s. 92(7) and 92(13):
 Section 92(7): Hospitals and health care
 Section 92(13): Property and civil rights
 The Court said this law’s primary purpose was treatment and rehabilitation, not
punishment.

Even though the law had a penalty (forced treatment), it was not criminal law. Its pith and
substance was health care, which is provincial.

The SCC upheld the BC Heroin Treatment Act- compressive apprehension, assessment
and treatment of drugs addicts was provincial s92(16). Not criminal because detention
was not for punishment.
Significance:
 Clarified that provinces can pass laws with penalties, as long as the main purpose isn’t
criminal punishment.
 Reinforced that health and addiction treatment fall under provincial jurisdiction, even
if there’s some overlap with criminal law.
 Helped shape how courts approach “pith and substance” analysis when deciding who
has jurisdiction (federal or provincial).

Tobacco
RJR-MacDonald v. Canada (1995) – concerned the validity of the federal Tobacco
Products Control Act, which prohibited the advertising of cigarettes and other tobacco
products and required the placement of health warnings on packages – was this a valid
criminal law? The Act contained a prohibition and a penalty, but was it for a typically criminal
public purpose?
o The SCC was unanimous that the health warnings, as a protection of public health,
supplied the required purpose to support the exercise of criminal law power
o However, what about the ban on advertising? The federal government is allowed to
prohibit the manufacture, sale or possession of dangerous products, but it had not done
that… It was going after the advertising instead….
Significance:
 Charter Rights Apply to Commercial Speech
Affirmed that freedom of expression includes commercial advertising — even for
controversial products like tobacco.
2. Set High Standards for Limiting Rights (s. 1 Test)
Government must provide solid evidence when restricting Charter rights, especially in
broad bans.
 3. Expanded the Scope of Criminal Law Power
Confirmed that Parliament can use the criminal law to protect public health, even in
non-traditional ways (e.g., regulating advertising).
4. Led to Better-Designed Public Health Laws
Parliament later passed a revised version: The Tobacco Act (1997), which focused on
evidence-based, narrower restrictions — ultimately upheld in later cases.

o The majority of the SCC found that the power to prohibit the use of tobacco on account of
its harmful effects on health also encompassed the power to take the lesser step of
prohibiting the advertising of tobacco products
o The purpose was still the protection of the public from a dangerous product
o Justice Major dissented (the prohibition of the advertising of a legal product lacked a
“typically criminal purpose”)

Environmental Protection
R. v. Hydro-Quebec (1997)
o SCC held that the protection of the environment (which extends beyond the protection of
human health) was a public purpose that would support a federal law under the criminal
law power
o Canadian Environmental Protection Act was upheld under the federal criminal law
power (whereas the dissenting judges thought that the Act was regulatory, not criminal)
o See Hogg pp. 18-12.1 and 18-30
o 5-4 Majority: The Court ruled in favor of the federal government.

Reasoning:
o The law prohibited harmful activities (toxic chemical releases), which aligns with
criminal law purposes (protecting public health & environment).
o Even though environmental law is broad, Parliament can criminalize pollution to
protect Canadians.

TEST: The law had prohibition + penalty + public purpose → meeting the test for valid
criminal law power (from the Margarine Reference (1951)).

Significance:
1. Strengthened Federal Role in Environmental Protection
 Confirmed that criminal law power can be used for environmental laws (not just
traditional "crimes" like murder or theft).
2. Set Limits for Federal Laws
 The ruling clarified that federal laws must be prohibitive in nature (not just
regulatory) to qualify as valid criminal law.
3. Shaped Future Environmental Legislation
 This case influenced modern federal environmental laws, including climate change
regulations and carbon pricing (References re Greenhouse Gas Pollution Pricing
Act, 2021).

Abortion
o Canada’s Criminal Code used to prohibit abortions, with the exception of an abortion
approved by the therapeutic abortion committee of a hospital
 o Mortgentaler v. The Queen (1975) – Laskin C.J. held that it was open to Parliament
under the criminal law power to prohibit the termination of a pregnancy
o Mortgentaler v. The Queen (1988) – SCC struck down the abortion law as contrary to the
Charter (stay tuned)
o What would happen if the provinces tried to prohibit abortions as a matter of health law?
See R. v. Mortgentaler (No. 3) (1993)

i. Confirmed Federal Supremacy Over Criminal Law

1. Provinces cannot interfere with federal criminal laws, even in areas
related to health.
ii. Limited Provincial Power Over Health Regulations
1. Health is a shared jurisdiction (federal + provincial), but provinces
cannot legalize something that federal law criminalizes.
iii. Led to the Landmark 1988 Morgentaler Case
1. Dr. Morgentaler continued fighting, and in R. v. Morgentaler (1988), the
Supreme Court struck down Canada's abortion law for violating
women’s rights under the Charter.

Assisted Human Reproduction

o Assisted Human Reproduction Act – federal act attempting to exercise criminal law
power to regulate the use of assisted human reproduction techniques
o Re Assisted Human Reproduction Act (2010) – was the Act a valid exercise of the
federal criminal law power?
o Yes, in respect of the outright prohibition of certain reprehensible practices like the buying
and selling of embryos, human cloning
o But what about “controlled activities” (those that applied unless they were carried out in
accordance with regulations)?
o A narrow majority (5-4) upheld the absolute prohibitions as criminal law, but found the
rest of the Act unconstitutional because it was really a regulatory scheme and the
regulation of assisted human reproduction came within the provincial powers (over
hospitals, the medical profession, property and civil rights and local matters)
o What was the “pith and substance” of the law, according to the Court?

Sunday Observance Laws

o R. v. Big M. Drug Mart (1985) – federal Lord’s Day Act (Big M. Drug Mart Ltd. was a
Canadian pharmacy that challenged the Lord's Day Act, which required most businesses
to close on Sundays.)
o SCC confirmed that the Lord’s Day act was a valid exercise of the criminal law power,
because it pursued the religious purpose of preserving the sanctity of the Christian Sabbith
because it was intended to safe guard morality.

The Supreme Court of Canada ruled in favor of Big M. Drug Mart, declaring that the Lord's
Day Act was unconstitutional. The Court found that:
1. The Law was Religious in Nature: The law was rooted in Christian religious
practices, as it was designed to ensure Sunday was kept as a day of rest and worship.
This, in turn, violated freedom of conscience and religion.
 2. The Charter Applied: The Court ruled that the Charter of Rights and Freedoms
applied to the law, and that the government could not impose laws that required people
to observe a specific religion's practices.
3. Freedom of Religion: The ruling emphasized that freedom of religion in Canada
meant the freedom to practice or not practice any religion, without government
interference.

o R. v. Edwards Books and Art (1986) – provincial Retail Business Holidays Act
 In summary, R. v. Edwards Books and Art was a case that emphasized the need
for a balance between freedom of religion and the broader public interest, allowing
for laws that might have religious origins but serve secular or societal goals. It
marked an important development in the application of Section 2(a) of the
Canadian Charter of Rights and Freedoms, building upon the Big M. Drug
Mart decision.
 Significance:
o Distinction from Big M. Drug Mart: Edwards Books was significant
because it created a distinction between laws that are religiously motivated
and those that have secular purposes. While the Court in Big M. Drug
Mart found the law unconstitutional due to its religious nature, the
Edwards decision allowed for laws that may have religious roots but serve
broader secular purposes to stand.
o Interpretation of Section 2(a): The case clarified that freedom of religion
is not absolute in the sense that any law with religious origins is
automatically unconstitutional. The Court balanced individual rights with
public interest, showing that not all laws with religious undertones
necessarily violate religious freedom.
o Clarification of Secularism: The decision reinforced the concept that laws
could be secular and still have historical religious associations, as long as
their practical purpose did not force religious observance.

Gun Control
o Federal Parliament enacted the Firearms Act in 1995, which amended Criminal Code
provisions by requiring all guns to be registered and all gun owners to be licensed
o Re Firearms Act (2000) – the province of Alberta referred the Act to the courts for a
ruling on its constitutionality – was the Act a valid exercise of criminal law power?
 The SCC said YES, a valid exercise of criminal law power
 Purpose of the Act was to restrict access to inherently dangerous things
 The requirements of the Act were directed to public safety
 The effect on property (ie the guns themselves) was incidental to the main purpose
of public safety
Lieberman v The Queen (1963) Provincial- it was held that provincial authority also
extends to the imposition of limits on the business hours of commercial establishments
o In 1995, the federal parliament amended the CC provisions by enacting the Firearms Act
which expanded the existing rules by requiring all guns to be registered and all gun
owners to be licensed. Alberta appealed this act and the SCC held that this was a valid
exercise of criminal law power. The purpose was to restrict access to inherently
dangerous things. History had revealed violent crimes, domestic violence, suicides, and
accidents. The court held it was not merely regulatory because if provisions were enforced
 by the criminal law means of a prohibition and penalty, because the Act prohibited
possession of a gun without a license and a registration certificate, imposed penalties for
breach of the prohibition.

Assisted Suicide
o Carter v. Canada (2015) – Issue is whether, given that all agree that the prohibition of
assisted suicide is, in general, a valid exercise of criminal law power; but should the
interjurisdictional immunity doctrine apply to physician-assisted dying, because it lies at
the core of provincial jurisdiction over health care?
o Held: Criminal Code prohibition on assisted suicide is, in general, a valid exercise of the
federal criminal law power
o Landmark case in which the Supreme Court of Canada struck down the absolute
prohibition on assisted suicide under the Criminal Code. The Court found that the
prohibition violated the Charter rights of individuals suffering from incurable, grievous
medical conditions. The case was a significant step toward recognizing individual
autonomy and the right to die with dignity, and it led to the creation of a legal
framework for medical assistance in dying (MAiD) in Canada. It has had a profound
impact on Canadian law and society, sparking debates about ethics, morality, and
personal rights in end-of-life care.
o But the Interjurisdictional immunity claim fails. The SCC found that health is an area of
concurrent jurisdiction (so both the federal Parliament and the provinces may validly
legislate on the topic).
o Note: Law struck under s. 7 Charter and the prohibition in the Criminal Code on assisted
suicide were struck down and Parliament was given 12 months to enact new legislation
legalizing physician-assisted dying

Criminal Law and Civil Remedies

o Federal Parliament has no independent power to create civil remedies akin to its power
over criminal law (so if the pith and substance of a federal law is the creation of a new
civil cause of action, the law will be invalid)
Issue: but what if the civil remedy is incidental to the main purpose of the law?
o Functional connection Test – civil rights of action will be permitted by the federal law if
there is a rational, functional connection between them and the valid provisions of the
federal legislation
o Examples where such a civil right of action has been upheld: civil remedy in federal
corporation law against persons engaged in insider trading; the federal Divorce Act can
provide for the custody of children, even though custody is usually provincial
o Further Issue: can the federal Parliament’s criminal law power authorize the creation of a
civil right of action for breach of a criminal statute?
o Example: can the Criminal Code provide that a criminal court can order an accused to pay
a victim compensation for any loss or damage?
o See R. v. Zelensky (1978) – Hogg p. 18-25
 In R. v. Zelensky (1978), the Supreme Court ruled that compelling a person to
provide a handwriting sample did not violate the right against self-incrimination
under Section 11(c) of the Canadian Charter of Rights and Freedoms. The case
established a distinction between testimonial evidence and physical evidence,
clarifying that the latter could be compelled without violating the Charter. This
 decision had lasting implications for how self-incrimination protections were
interpreted in Canadian criminal law.

Provincial Power to Enact Penal Laws

o We were looking at whether the federal Parliament could tread into civil remedies;
whether the provinces have the power to enact penal laws is the other side of the coin
o s. 92(15) Constitution Act, 1867 – provincial Legislatures have the power to impose
“punishment by fine penalty or imprisonment” for the purpose of enforcing valid
provincial laws (obviously! Provinces need to be able to enforce their legislation)
o Issue: when is a law a valid provincial law with an ancillary penalty vs a provincial law
which is invalid because it is in pith and substance a criminal law?
 To determine whether a provincial law is valid or invalid in terms of being
criminal law, the pith and substance test is applied. Courts look at the true
nature of the law to see whether it deals with matters that fall under the federal
criminal law power (Section 91) or the provincial power (Section 92). If it is
found to be criminal in substance, the law will be struck down as unconstitutional
for being outside provincial jurisdiction.

o Chatterjee v. Ontario (2009) Police pulled over a car with no front licence - plate;
police computer showed the driver was in breach of a court order so driver was arrested;
search of the car revealed $29,000 cash which “smelled of marijuana” – money was seized
and forfeited to provincial Crown on the grounds that the money was “proceeds of
unlawful activity” (even though no charges laid and no drugs found in the car)
 The Supreme Court of Canada ruled that the Ontario Provincial Police violated
Chatterjee’s Charter rights by detaining him without reasonable grounds and
failing to inform him of his right to counsel. The Court’s decision reinforced key
protections under the Canadian Charter of Rights and Freedoms, particularly
the right not to be arbitrarily detained and the right to counsel. The ruling also
emphasized the potential for evidence to be excluded when Charter violations
occur, further strengthening the framework of police accountability in Canada.

o Provincial statute was the Civil Remedies Act, 2001 (in this case, it was the smell of the
marijuana coupled with the driver’s explanation for the money that caused the court to
order the forfeiture) – the driver argued that the Civil Remedies Act was unconstitutional
(i.e. the provincial act was an unconstitutional intrusion into the federal realm of criminal
law)
o SCC held that the pith and substance of the law was in relation to property (and noted that
both provinces and federal Parliament were competent to make laws for the purposes of
preventing and compensating crime)
o SCC unanimously upheld Ontario’s civil forfeiture statute as a valid exercise of provincial
jurisdiction under s. 92(13) and (16) The Crown kept the $29,000

Re Firearms Act, [2000] 1 S.C.R. 783

 Constitution Act, 1867, s.91(27)- confers on the federal Parliament power to make
criminal laws. The scope is of the power has been defined broadly. A criminal law must
have a valid criminal law purpose backed by a prohibition and a penalty.
 Criminal Purposes - a purpose that will qualify to sustain a law as criminal law does not
 necessarily involve the prevention of harm to other human beings. Protection of the
environment, protection to the cruelty of animals, various forms of economic regulation
has been upheld criminal law.
 Food and Drug Standards- Margarine Reference was struck down on the basis that the
purpose of legislation was an economic one protecting the dairy industry.
 If “injurious to health” then no doubt would be a criminal public purpose. The “prevention
of consumer deception” Labatt Breweries v A.G. Can (1971)
 Illicit drugs- non medical use of drugs such as marihuana, cocaine and heroin is
proscribed by the NCA. This act has been upheld as a criminal law.
 18.9(a)- SCC held act was a valid exercise of the criminal law power. Purpose of the act
was to restrict access to inherently dangerous things. They looked at legislative history-
concerns with violent crimes, domestic violence, suicide , and accidents- all which could
be facilitated or worsened by ready access to guns.
 All requirements of the act pointed to public safety. Registration provision not
concerned with priority between competing property interests in guns, like a provincial
property registry. Acts focus on public safety distinguished the act from provincial
property registration schemes. The effect on property was “incidental” to the main purpose
to public safety.
 The Act was not merely regulatory- it’s provisions were enforced by the criminal –law
means of a prohibition and penalty.

Tobacco- RJR-MacDonald v Canada ( 1995)- the SCC held the power to prohibit the use of
tobacco on account of its harmful effects on health also encompassed the power to take the lesser
step of prohibiting the advertising of tobacco products.
 Health- is an “amorphous topic” and can fall under provincial or federal. Depends on the
purpose and effect of the legislatures.
 Environmental protection – R v Hydro-Quebec (1997)-SCC agreed that the protection
of the environment was a public purpose that would support a federal law under the
criminal law power and the Environmental Protection Act was covered.
 Abortion –The CCC used to prohibit abortions. In Morgentaler v The Queen- the
validity of the prohibition was challenged on the basis that the safety of modern techniques
of abortion made prohibition inappropriate as a protection for the health of the pregnant
women. –therefore prohibition was not authorized by the criminal law power.
 Hogg 18.7 - Competition Act- Since economic competition is important and its difficult
for provinces to regulate anti-competitive practices it has been agreed it has to be federal to
be effective.

Human Rights and Freedoms

Language Rights
Constitution Act, 1867, s.133
Manitoba Act, 1870, s.23 (see Hogg, chapter 56, note 40)
Constitution Act, 1982, ss.16-23
Hogg, chapter 56, “Language”

Distribution of Powers Over Language

o Language is not a class of subject that is enumerated in the Constitution Act, 1867
 Does it belong to the provinces, such as coming under “property and civil rights”?
  Or does it belong to the federal Parliament, as a POGG power?
 Or something else entirely?
o The case law makes it clear that language is not an independent matter of legislation (see
Jones v. AG New Brunswick (1974) at Hogg p. 56-3)
 SCC upheld federal Official Languages Act which made Eng. Fre official
languages of Canada. For courts it could be authorized under s 101 and over
criminal procedure under S.91(27)
o This means that no single plenary power to enact laws in relation to language exists
o So language will fall under both levels of government, depending on criteria other than
the impact of the law on language

Constitution Act, 1867 was enacted in English only

o So the French version is unofficial – what does this mean?
 When we say "the French version is unofficial", it means that the French
translation of a legal document, case, or text is not legally authoritative — only
the English version is considered the official (legally binding) version in that
particular context.
o The Canada Act 1982 and the Constitution Act, 1982 were enacted by the UK Parliament
in both languages
o s. 57 of the Constitution Act, 1982 provides that the English and French versions of that
Act are equally authoritative (note that this does not tell us how to resolve discrepancies)
o Since Confederation, federal statutes are enacted in both languages due to s. 133 of the
Constitution Act, 1867 and there are rules for resolving discrepancies (see Hogg p. 56-6)
o What is s. 133 of the Constitution Act, 1867?...

Language of Statutes
Constitutional Requirements
o s. 133 of the Constitution Act, 1867 provides the only explicit guarantee of language rights
 Either English or French may be used by any person in the debates of the
Houses of Parliament of Canada and of the Houses of the Legislature of Quebec
 Both languages shall be used in the records and journals of the Houses
 Either language can be used by any person or in any pleading in any Court of
Canada or Quebec
 The Acts of the Parliament of Canada and the Legislature of Quebec shall be
printed and published in both languages
o Note that s. 23 of the Manitoba Act, 1870 is very similar to s. 133 of the Constitution Act,
1867- Why? Due to the French-speaking minority in Manitoba
o New Brunswick is also in a similar position to Quebec and Manitoba,
o Section 133 of the Constitution Act, 1867 is a key provision that guarantees language
rights in Parliament and the courts at the federal level and in the province of Quebec.
o Applies only to: Federal institutional & Quebec provincial institutions
o Does not apply to other provinces (like Ontario or Alberta). Other provinces may have
their own language laws, but they’re not bound by s. 133 unless specified.
o English and French may be used in: The Parliament of Canada & The Legislature of
Quebec
o Laws enacted by: The Parliament of Canada, and The Legislature of Quebec
must be printed and published in both English and French.
 o Either language may be used in: Any pleading or process in federal courts and courts
of Quebec.

Language of Statutes – Case Law

 Attorney General of Quebec v. Blaikie (1979) – the SCC struck down those provisions of
Quebec’s Charter of the French Language that purported to make French the language of the
Legislature; contravened s. 133 of the Constitution Act, 1867 (Note: remedied overnight,
because already translated)
 Re Manitoba Language Rights (1985) – the SCC found that almost all Manitoba statutes
were invalid because enacted in English only, contrary to s. 23 of the Manitoba Act, 1870 (as
of 1890, when the Official Languages Act was enacted)
 Problem: a legal vacuum in Manitoba??
 Solution: the SCC deemed the province’s statutes to have temporary force and effect i.e. a
transitional period (“temporary suspension of invalidity”)
 Attorney General of Quebec v. Collier (1985) - “incorporation by reference”
o where a statute makes reference to another document, so as to incorporate (or adopt)
the document as part of the statute, then the general rule is that, if there is a
constitutional requirement that the incorporating statute be in both languages, then
the requirement will apply to the incorporated document as well
o The reason for this is to prevent the denial of access by English or French speakers
to the Legislature
o The document that is incorporated has to be an “integral part” of the statute to
trigger this requirement

Language of Courts
Constitutional Requirements:
 S. 133 of the Constitution Act, 1867 requires that either French or English “may be used
by any person or in any pleading or process in or issuing from any Court of Canada
established under this Act, and in or from all or any of the Courts of Quebec.”
 Again, s. 23 of the Manitoba Act, 1870 imposes a similar requirement on the courts of
Manitoba
 Again, s. 19(2) of the Charter imposes a similar requirement on the Courts of New
Brunswick
 Other provinces are under no such constitutional language requirement

How to define “Courts”? Does it also include Tribunals?

Attorney General of Quebec v. Blaikie (1979) - SCC held that reference to the “Courts of
Quebec” in s. 133 of the Constitution Act, 1867 included not only courts with federally-
appointed judges and inferior courts with provincially-appointed judges but also to
administrate tribunals established by statute that exercised adjudicative functions.
o The Act provided that bills were to be provided in French only and only the French
version be official. This contravened s133. S.133 requires law “be print and
published” in both languages especially in “records and journals”. This means all
 statues enacted after the Quebec’s Charter were in violation of s133. This was fixed the
next day.

What about the language of Process?

MacDonald v. City of Montreal (1986) – English-speaking Quebecer got a speeding ticket;
the summons issued by the Quebec Court (which included the charge) was in French only;
did the unilingual summons infringe s. 133?
o No – s. 133 provided that “either” of the two languages may be used in any
process issuing from a Quebec court; as such, the court process need not be
bilingual
o Furthermore, the court held that s. 133 does not guarantee that the speaker,
writer or issuer of proceedings or processes will be understood in the language of
his choice i.e. there is no right to choose the language of the process.

What about the language of Proceedings?

Société des Acadiens v. Association of Parents (1986)
o Argument that one of the judges in the New Brunswick Court of Appeal did not
understand French (which was not established as a matter of fact)
o The Court found that neither s.133 nor s.19(2) confer a guarantee that the
litigant’s language of choice will be understood by the judge hearing the case.
o SCC held that the societe had not established their allegation that the judge could
not speak French. Dickson CJ and Wilson J each stated that the litigants right to
use either English and French impliedly included the right to be understood in the
litigant’s language of choice by the judge hearing the case.

Right to Interpreter
 S. 14 of the Charter of Rights guarantees the right to an interpreter to “a party or witness in
any proceeding who does not understand or speak the language in which the proceedings are
conducted or who is deaf. . . “
 R. v. Tran (1994) – SCC held that the right to an interpreter required the standard of
“continuity, precision, impartiality, competence and contemporaneousness” (i.e. cannot
be a break in what is being testified and the interpretation)

Language of Government
 S. 16 of the Charter makes English and French the official languages of Canada and New
Brunswick
 s. 16(3) of the Charter authorizes the Parliament and Legislatures to create language rights
above and beyond those conferred by the Constitution
 S. 20 of the Charter imposes an obligation on government to provide bilingual federal services
to the public
o Where there is significant demand, or
o Due to the nature of the office.
 English and French services must be of equal quality (equality is substantive) – see
DesRochers v. Canada (2009) Hogg p. 56-23
 Charter of rights S.16-23 provides language provisions.
 S.17-19 duplicate S.133 in their application in legislative bodies (and courts) of the federal
government. Charter rights 17-19 apply to New Brunswick so New Brunswick is in the same
 position as Quebec /Manitoba
 S.14- applies to any proceedings, including civil, criminal and administrative. Should be paid
for by public funds.

Language of Commerce
 None of the language rights in the Constitution of Canada protects the use of the English or
French language in commercial (or private) settings.
 However, statutory language requirements may offend the freedom of expression guarantee in
s. 2(b) of the Charter
o Ford v. Quebec (1988): Requirement that commercial signs and ads be in French
only struck down (note that Quebec used the override power / notwithstanding clause
to keep this law on the books)

Language of Education
 S. 93 of the Constitution Act, 1867 confers upon the provincial Legislatures the power to make
laws in relation to education
 However, S. 93 prohibits the provincial Legislatures from prejudicially affecting “any right
or privilege with respect to denominational schools which any class of persons have by law
in the province at the union” (i.e. if a particular language of instruction was a right or privilege
of a denominational school in a particular province at the time of confederation, it stays)
 Ottawa Roman Catholic Separate School Trustees v. Mackell (1916) – Privy Council
found that Ontario had the power to require that English be the language of instruction in
hitherto French-speaking Roman Catholic separate schools in the province

Charter Section 23 (MINORITY EDUCATION RIGHTS)

Charter Section 23 now protects minority language education rights.

Mother Tongue of Parent (Which parents have the right to minority-language education for their
children?)

Section 23(1)(a) applies to citizens whose first language learned and still understood is that of
the English or French linguistic minority population of the province in which they reside OR;
(2)(b)
o Example: in Ontario (or other province with an English-speaking majority), a Canadian
citizen whose “mother tongue” (“first language learned and still understood”) is French
has the right under s. 23(1)(a) of the Charter to have his or her children receive primary
and secondary school instruction in French
o Note: that Quebec is exempted from this as part of the partition compromise pursuant to
s. 59 of the Constitution Act, 1982 (in other words, s. 23(1)(a) does not apply to English-
speakers in Quebec) – see Hogg p. 56-29
o They have to “reside”, be Canadian citizen, be a language minority French or English,
Need to prove the language was “first language learned” and is “still understood”
o s59 Constitution of Act 1982- the paragraph does not apply in Quebec until the legislative
assembly or government of Quebec decides to adopt it. English speaking parents in
Quebec have no right to send their children to English speaking schools, unless they fit
into the second or third category of parent recognized by s 23.

Francophones in English-majority provinces: French speaking minorities in Alberta or

 Ontario
They can rely on s. 23(1)(a) to get French-language education even if they didn’t go to
French school themselves, as long as French is their first language learned and still
understood.
o EXAMPLE: Marie was born and raised in Alberta. Her first language was French, and
she still understands and speaks it.
o French is a minority language in Alberta. Marie can send her children to French-language
public schools in Alberta, under s. 23(1)(a).
o Not applicable in Quebec If James was born in Quebec and his first language was
English, s. 23(1)(a) does not apply in Quebec due to Section 59 of the Constitution Act,
1982. He can’t claim this right just because he learned English first — only (1)(b) and (2)
apply in Quebec.

Anglophones in Quebec: English speaking minorities in Quebec

They cannot rely on s. 23(1)(a). Their rights to English-language education are more
limited, based instead on:
o Whether they or their children had already received English instruction in Canada,
under s. 23(1)(b) and (2).
o That means new immigrants or first-generation English speakers in Quebec may not
have access to English public schools.

Language of instruction of parent in Canada

o Section 23(1)(b) applies to citizens who have received their primary school instruction
in Canada in the minority language of the province where they now reside
o Known as the “Canada clause” because Canadian citizens, who move from one province
to another, retain the right to have their children educated in the same language as that
in which the parent was educated anywhere in Canada (and Quebec is not exempted)

Attorney General of Quebec v. Quebec v. Quebec Protestant School Boards (1984)

 Bill 101 restricted access to English-language education in Quebec.
 The Supreme Court struck down part of it for violating the constitutional
rights of Protestant school boards under Section 93
 This case showed that even Quebec’s efforts to protect French must respect
other constitutional guarantees, especially historical rights related to religion
and education.
 Applies to citizens who have received their primary school instruction in Canada in
a minority language of the province where they now reside. This is called the
(Canada Clause). Citizens who move from one province to another retain their right
to have their children educated in the same language as that which parent was
educated anywhere in Canada. Quebec is not exempt from this para(b). Quebec
Charter of the French Language – had a Quebec clause but limited English
speakers.
o Quebec is not exempt from this clause either. This is to encourage mobility in Canada by
guaranteeing the continuity of a child’s minority language education.

EXAMPLE: Linda grew up in Ontario and went to English-language primary school there.
She now lives in Quebec, where English is the minority language. Linda has a
 constitutional right to enroll her children in English-language schools in Quebec, under s.
23(1)(b).

OR

Jean-Paul grew up in New Brunswick and went to French-language elementary school. He

now lives in Manitoba, where French is the minority language. ✅ His kids have the right to
attend French-language schools in Manitoba, under s. 23(1)(b).

Language of instruction of child in Canada (If any child of the parent has received or is
receiving instruction in that language in Canada, all the children have a right to go to school in
that language.)
 Section 23(2) of the Charter applies to citizens who have a child who has received or is
receiving primary or secondary school instruction in English or French in Canada; such
persons have the right to have ALL their children receive their schooling in the same
language (and Quebec is not exempted)
 Purpose of s. 23(2) is to encourage mobility within Canada by guaranteeing the continuity of
a child’s minority language education, and by ensuring that all of the children in the same
family can go to the same schools
 Quebec’s Charter of the French Language provided that s. 23(2) only applied where the
English language instruction constituted a “major part” of that child’s schooling in Canada
(this was upheld as constitutional by the SCC in Solski v. Quebec (2005), as long as the
measure was assessed “qualitatively” instead of “quantitatively” – in other words, as long as
“a significant part, though not necessarily that majority” of the child’s instruction was in
English, s. 23(2) would apply (see Hogg p. 56-31)
 See Nguyen v. Quebec (Education, Recreation and Sports), (2009) SCC 47…

Nguyen v. Quebec
 BACKGROUND: how much English-language instruction in Canada is required
before the s. 23(2) Charter right can be claimed?
 Did Quebec's law (Bill 104), which denied eligibility for English public schools
based on private schooling, violate Section 23 of the Charter? Yes — the Court
ruled that Bill 104 was unconstitutional.
KEY FINDINGS:
o Section 23 of the Charter is meant to protect minority language communities and
promote their growth.
o The complete exclusion of private schooling experience from eligibility was too strict
and did not balance the government's language policy goals with Charter rights.
o The Court said Quebec can regulate how eligibility is determined, but not in a way
that completely blocks access to Section 23 rights without flexibility or individual
assessment.
o The law was struck down, but the Court gave Quebec 1 year to revise it in a way that
respects constitutional rights.
 This case reaffirmed that Section 23 of the Charter protects real, meaningful
access to minority-language education. While Quebec can promote French, it
 cannot shut the door completely on Anglophone rights. The case shows how
Charter rights can override provincial language laws when those laws go too
far.
 In 2002, Quebec amended its Charter of the French Language to provide that
instructive in English received in Quebec in an unsubsidized private school was to
be disregarded in calculating the major part of that child’s schooling parents
enrolled their children for short periods in unsubsidized “bridging schools” offering
instruction in English and then requested that their children be declared eligible for
instruction in English in public or subsidized private schools
 The SCC held that the amendment was a limit on the right guaranteed by s. 23(2)
of the Charter (and it could not be justified under s. 1)
 The legislative objective was important (protect and promote French language in
Quebec)
 But the absolute prohibition of instruction in unsubsidized private schools as a
pathway into Quebec’s English-language public system was an “excessive”
response in relation to the seriousness of the problem of bridging schools being
used to make obtaining access to minority language schools almost automatic

Where Numbers Warrant

 Section 23 (3):The right of citizens of Canada under subsections (1) and (2) to have their
children receive primary and secondary school instruction in the language of the English or
French linguistic minority population of a province (a) applies wherever in the province the
number of children of citizens who have such a right is sufficient to warrant the provision to
them out of public funds of minority language instruction; and (b) includes, where the
number of those children so warrants, the right to have them receive that instruction in
minority language educational facilities provided out of public funds.
 It means that the right to minority-language instruction only applies when there are
enough students to justify the cost and effort of providing education in that language. The
government does not have to provide French or English schooling for just one or two
students in a remote area — there needs to be a sufficient number to make it reasonable and
practical.
 S23 (3)(a) uses the phrase the right to “instruction” is limited to “wherever” in the province
the number of children of citizens who have such right is sufficient to warrant the
provision to them public funds”

EXAMPLE:
Arsenault-Cameron v PEI (200) French language school wanting a bus service. for 49
students. SCC sided with parents and held the relvant number “was somewhere between the
known demand and the potential students who may go.” The number should over 100. The
number in this case who potentially would go is 155.

Mahe v. Alberta (1990) – SCC held that “where numbers warrant” creates sliding scale.
Facts: Numbers (4000 students) warrant guarantees of a number of Francophone
representatives on school board, but not a separate school board itself. court rejected argument
that language facilities was not just physical facilities. It also includes a degree of management
and control that was proportionate to the number of qualifying children.
o KEY POINTS:
 This was the first time the Court recognized that control over education is
 part of language rights under Section 23.
 The case affirmed that French-speaking communities outside Quebec (and
English-speaking ones inside Quebec) have the right to preserve their culture
and identity through schools.
 Across Canada (outside Quebec), this ruling led to the creation of French-
language school boards managed by Francophone communities. For example,
Conseil scolaire Centre-Nord in Alberta is a direct outcome.

Association des parents de l’ecole Rose-des-vents v. BC (2015)

o rights-holders entitled to full educational facilities that are distinct from and equivalent
to majority; equivalence does not mean identical but must be substantive equivalence
(look at what a reasonable parent would examine when choosing school for his / her
child)
o To summarize, s. 23 of the Charter confers upon “citizens of Canada” who are
members of the English-speaking minority in Quebec or the French-speaking minority
in other provinces “the right to have their children receive primary and secondary
school instruction in [the minority] language in that province” (only “where numbers
warrant”)

The right is possessed by parents who fit in one of three categories:

1. Mother-tongue of the parent (note that this does not apply in Quebec unless Quebec
adopts it) (s. 23(1)(a) of the Charter)
2. Language of primary school instruction in Canada of the parent (known as the
“Canada clause” – see Attorney General of Quebec v. Quebec v. Quebec Protestant
School Boards (1984) (s. 23(1)(b) of the Charter)
3. Language of instruction in Canada of one child of the parent (see Nguyen v. Quebec
(2009)) (s. 23(2) of the Charter)

Devine v Quebec ( 1988)

o SCC upheld provisions of the Quebec’s Charter that regulated language of commerce
public signs, invoices, orders, receipts etc and this fell under provincial jurisdiction of
property and civil rights in the province s92 (13) Anything related to interprovincial
regulations ie radio –tv is federal authority.

Clause What it Covers Applies Where?

First language learned and still All provinces except
23(1)(a)
understood Quebec
Parent had primary school in minority All provinces including
23(1)(b)
language in Canada Quebec
All provinces including
23(2) Sibling rule
Quebec
 Clause What it Covers Applies Where?
Must provide education where numbers
23(3) All provinces
warrant

Language of the Constitution

o S55 Constitution Act 1982- directs the Minster of Justice to prepare French version of
the English only parts of the Constitution of Canada 1867. It still remains unofficial.
Any discrepancy would have to use the English one because it is official.
o The Constitution Act 1982 and Canada Act are both in official languages.
o S57 The Constitution Act 1982- provides that the English and French version of that
Act are equally authoritative
o S56 provides that both languages versions of other parts of Constitution of Canada are
both “equally authoritative”.
o Manitoba Official Language Act: We have noticed that s23 Manitoba Act 1870-
provides for Eng./Fre in the legislature (and courts) of Manitoba similar to s133 of the
Constitution Act 1867. The reason for s23 was to guarantee the right to French
speaking minorities.

BACKGROUND:
 In 1890 , the Manitoba Legislature enacted the Official languages Act which provided
English Language only” in records and journals of the Legislature and in the
pleadings and process in the Manitoba courts.
 This Act was then held to be invalid by county courts in 1892 and 1890. These
decisions were not appealed or record and disregarded by authorities in Manitoba.
Then in 1976, a third attack was mounted against the Official Languages Act and again
it was found to be invalid by a county court.
 The AG of Manitoba announced that : “the Crown does not accept the ruling of the
Court with respect to the constitutionality of the Official Languages Act.” In 1978 it
was challenged for the fourth time.
 This time a French speaking plaintiff brought an action in Manitoba court seeking a
declaration that the Act was invalid. Court held that Manitoba’s Official Languages
Act was unconstitutional.

Re Manitoba Language Rights (1985)

 SCC confirmed that the failure to comply with s 23 requirement resulted in the
invalidity of the purported statue.
 Courts considered a two stage procedure for bilingual enactment. The 1st stage-
enactment of the bill in English only 2nd stage- was the preparation of a French
translation of the bill, which would have legal effects on the Legislatures. This two
stage process was also unconstitutional.
 Another provision stating to refer to English first the French second was also
unconstitutional because both versions were “equally authoritative

Interpreting the Charter of Rights and Freedoms

History
 At first, there was a Canadian Bill of Rights which was enacted in 1960 after WWII
 But the Canadian Bill of Rights was just a regular statute and it did not apply to the
 provinces
 In 1981, nine out of 10 provinces (all except Quebec) made an agreement which led to
the enactment of the Constitution Act, 1982, of which Part I is the Canadian Charter of
Rights and Freedoms
 Unlike the Canadian Bill of Rights which is just a statute, the Charter is part of the
Constitution - what does this mean?
o Can only be altered by constitutional amendment
o Can override inconsistent statutes
o Applies to both levels of government

Protection of Civil Liberties

 The Charter guarantees a set of civil liberties that are so important that they are
protected from state action
 The government is supposed to avoid actions that would violate the Charter (i.e. in the
federal government, the Minister of Justice has to review all proposed statutes and
regulations for compliance with the Charter pursuant to the Department of Justice Act,
1985)
 In theory, the provincial Ministers of Justice / Attorneys General do the same (although
there is no statutory reporting obligation)
 How to enforce Charter compliance by government? Answer: Judicial Review

Judicial Review
 Charter = Expansion of Judicial Review
 It used to be that courts only invalidated laws based on the distribution of powers;
the Charter added another basis for invalidation of laws
 In fact, there are way more Charter cases than federalism cases and Charter cases are
based more on policy
 Potential problems if courts / judges have the power to invalidate legislation that
violates the Charter
 Is it legitimate in a free and democratic society to empower non-elected judges to
strike down the decisions of elected legislators? (is this “counter-majoritarian”?)
 Are judges actually better qualified than legislators to decide policy-laden rights
issues? Many of the words are quite vague and so require interpretation…

Section 1 of the Charter

Judicial review of legislation under the Charter is a two-stage process:
1. Does the challenged law derogate from a Charter right?
2. If the answer to the first question is yes, ask whether the law is justified under
S. 1 of the Charter as a reasonable limit prescribed by law that can be
demonstrably justified in a free and democratic society.
Note s. 33 (override power) gives legislature the last word… (to be discussed later)

Dialogue Theory
 The Charter contemplates “dialogue” between the judicial and legislative branch
 Dialogue occurs, for example, when a law fails to pass Charter scrutiny under s. 1 and the
legislature tries again to enact a law with the same objective but which makes a less drastic
encroachment on a Charter right
 Note that there was a study in 1997 revealing that there were 66 cases in which a law was
struck down on Charter grounds and in 53 of those cases the legislature made some response
(and in 46 of those cases, a new law was substituted for the old one; in only 7 cases was the
offending law repealed)
 “Remedial discretion” = the SCC sometime suspends a declaration of invalidity after finding
a law to be unconstitutional to give the government time to revise it; this is a radical remedy –
why?
 Schachter v. Canada (1992) – SCC said it would only grant a temporary period of validity to
an unconstitutional law in three circumstances, namely, where the immediate striking down of
the law:
o Would pose a danger to the public;
o Would threaten the rule of law;
o Would result in the deprivation of benefits from deserving persons.
 Note: this standard has since loosened.

Charter Analysis
WE HAVE RULES:
• Is it government actor? Agent?
• Is this a private company giving a public service? Yes then government, a
university can also be an agent.
• Identify what right is being violated
• Determine the Remedies
• Is it justified either under Section 1 or 33

Recall that judicial review of legislation under the Charter is a Two-Stage process:
1. Does the challenged law abridge a Charter right?
2. If the answer to the first question is yes, ask whether the law is justified under S. 1 of the
Charter as a reasonable limit prescribed by law that can be demonstrably justified in a free
and democratic society
3. Step One: Let’s examine the first stage of the analysis. The Court looks at Two Issues:
i. How to characterize the challenged law?
ii. What is the meaning of the asserted right?

Purpose or Effect
o How to characterize the challenged law?
o Recall that the way to characterize the law for the purpose of the federalism review
was to look at the “matter” (or “pith and substance” of a challenged law – this often
involves examining the purpose of the law)
o For a Charter analysis, the law will offend the Charter if either its purpose
(obviously) or its effect is to abridge a Charter right (unless the law is saved by s. 1)

 R. v. Big M Drug Mart (1985) – Sunday-closing case; SCC held that the federal Lord’s Day
 Act which prohibited commercial activity on a Sunday abridged the guarantee of freedom of
religion in s. 2(a) of the Charter (as the purpose of the law was a religious one, to compel
observance of the Christian Sabbath) – this was an invalid purpose, so the Court did not even
need to look at the effect of the law (and noted that effects can never be relied on to save
legislation with an invalid purpose)
 R. v. Edwards Books and Art (1986) – provincial Sunday-closing case where the purpose of
the law was a secular one of prescribing a uniform pause day for workers; so the law passed
the purpose test; however, the effect of the law was to impose a burden on those retailers
whose religious beliefs required them to abstain from work on a day other than Sunday, which
was an abridgement of freedom of religion; notably, the Court relied on the benign purpose to
uphold the law under s. 1 of the Charter
 Note: The Lord’s Day Act (Big M Drug Mart) is the only law that ever failed the purpose test
in the SCC (as most laws are not enacted with the purpose of abridging a Charter right) – the
entire Act was struck down

Role of Section 33
 Section 33 is an override power which enables the Parliament or a Legislature to enact a law
that will override the guarantees in s 2, and s7 to 15 of the Charter. All that is necessary is the
enactment of a law contacting an express declaration that the law is to operate notwithstanding
the relevant provision of the Charter.
 Override Provision
o Section 2 (expression),
o Section 7 to 14 (legal rights)
o Section 15(equality).
 No Override Provision:
o Section 3-5(democratic rights)
o Section 6 (mobility rights)
o Section 16 to 23 (language rights)
o Section 28(sexual equality

Interpretation of the Charter (Progressive, Generous and Purposive)

 Does the challenged law abridge a Charter right?
1. How to characterize the law? (purpose and effect)
2. What is the meaning of the asserted right?
 Issue for (ii): how to interpret a Charter right?
3. Doctrines of progressive interpretation, generous interpretation, purposive
interpretation, process as purpose, hierarchy of rights

Progressive Interpretation (Should be interpreted as evolving)

 A constitution is different from an ordinary statute because it is broad enough to cover a wide
range of unpredictable situations, it is difficult to amend and it is likely to remain in force for a
long time
 This means that a flexible interpretation is needed, so that the constitution can be adapted
over time to changing conditions.
 Rights wouldn’t keep up with technological changes, social developments, or new
understandings of equality and justice.
 The “doctrine of progressive interpretation” = the constitution is a “living tree capable of
growth and expansion within its natural limits”
Generous Interpretation
 Edwards v. AG Canada (1930) – the SCC called the constitution a “living tree” that should
be given a “large and liberal interpretation”
 This means more judicial activism and a restriction on the powers of the legislature in
Charter cases
 This creates an interesting analytical question – should the courts interpret Charter rights
very broadly, and then relax the standards of justification under s. 1; or should the Court give
a narrow interpretation of rights and then use a stringent standard of justification under s. 1?
 What does Hogg advocate for? What do you think? Hogg strongly supports Option A — the
broad interpretation of rights followed by a balanced and structured analysis under
section 1.
 If courts start by interpreting rights too narrowly, section 1 becomes meaningless, because the
court never even gets to that balancing stage.

Purposive Interpretation
 Purposive interpretation = “What is this right really for, and how do we make sure it's
protected in a meaningful way?”
 The “purposive” approach to the interpretation of Charter rights is an attempt to ascertain the
purpose of each Charter right, and then to interpret the right so as not to include activity that
comes within the purpose and exclude activity that does not
 But note that of course the actual purpose of the right is usually unknown so courts have much
discretion: look to the language of the right, context, other Charter rights, legislative history of
the Charter, etc.
 In theory, the purposive approach will narrow the scope of a right, because it means the
right must be confined to its purpose (but note that the purposive approach goes hand in hand
with the “generous” approach – use the widest possible reading of the right, without
overshooting its purpose)

Conflict Between Rights

 There are a few conflicts that are contemplated by the Charter (see ss. 25 and 29 of the
Charter, for example) but the Charter mostly does not make provision for other kinds of
conflicts between rights
 Conflict between rights is generally resolved under s.1 of the Charter
 Ad hoc balancing by the courts, for the most part
 R. v. Keegstra (1990) – person charged with wilfully promoting hatred contrary to the
Criminal Code (equality vs. freedom of expression)
o The rights conflict was resolved through section 1 (i.e. Criminal Code provision
upheld; it did violate freedom of expression but was justified under s. 1)
o This is an example of the courts’ ad hoc approach to the balancing of rights, rather
than assigning priorities to rights

Application of the Charter of Rights and Freedoms

 Issue: who is entitled to the benefit of the rights guaranteed by the Charter? (I.e., what about
corporations?
o The Charter of Rights and Freedoms primarily guarantees individual rights, but it
also extends protections to certain groups, including corporations, in specific contexts.
 o Individuals: The Charter's primary beneficiaries are individual persons. This
includes citizens and permanent residents.
o Corporations: Corporations are entitled to some Charter protections, but not all rights
are guaranteed to them.

For Example:
 Freedom of Expression (s. 2(b)): Corporations have a right to free
expression, especially regarding commercial speech or public communication.
 Right to Life, Liberty, and Security of the Person (s. 7): Corporations do not
have the same personal liberty rights as individuals (e.g., they cannot claim
protection against arbitrary detention)
 Issue: who bears the burden of the Charter rights? (I.e., who is bound by the Charter?)
o The Charter binds the government and public authorities, but private entities are
generally not directly bound, unless they are performing a public function
 Issue: can Charter rights be waived?
o Yes, Charter rights can be waived, but with some important limitations

Benefit of Rights – Everyone, Anyone, Any Person

 Who is entitled to the benefit of the rights guaranteed by the Charter? This depends on the
language by which the rights are defined. Some rights apply to “Everyone”, “anyone” or
“any person” = synonymous?
 Sections 2, 7, 8, 9, 10, 12, and 17 of the Charter state that “Everyone” has the right
 Sections 11 and 19 state that “Any person” has the right
 Section 20 states “Any member of the public”
 Section 24 states “Anyone”
 Rights that include the phrase “everyone”, “anyone” or “any person”
o likely include a corporation as well as an individual
o There are some logical exceptions (i.e. s. 2(a) freedom of conscience and religion
does not apply to a corporation as a corporation cannot hold a belief; but note Big M
Drug Mart where a corporation invoked s. 2(a) as a defence to a criminal charge which
was permissible)
o Also, a corporation cannot be detained, imprisoned or arrested so s. 9 right against
arbitrary detention does not apply
o Foetus is not a legal person so not entitled to Charter rights (including the right to life
under s. 7)
o No independent requirement of a connection to Canada to claim Charter rights i.e.
Charter rights held by those who enter Canada illegally, example Singh Case.

(Singh v. Minister of Employment and Immigration (1985))

o Background: The case involved Harvinder Singh, a refugee claimant who was seeking
asylum in Canada. Singh, like other refugee claimants, had been denied an oral hearing
in front of the Immigration and Refugee Board (IRB). Instead, his case was decided
based on documentary evidence alone, and he was denied refugee status.
o The Supreme Court ruled in favor of Singh, holding that refugee claimants in
Canada are entitled to an oral hearing. The decision was grounded in Section 7 of
the Charter, which guarantees procedural fairness and the right to be heard before
being deprived of life, liberty, or security.
 o The Court's reasoning: The right to a fair hearing is an essential aspect of the
principles of fundamental justice under Section 7. Since refugee status
determination is a matter that affects a person's right to stay in Canada and,
potentially, their life and safety, it involves serious consequences that demand due
process.
o The Court noted that an oral hearing allows for a more comprehensive understanding
of the refugee claimant's situation, offering an opportunity to address nuances that may
not be apparent in written submissions.
o Section 7 of the Charter was crucial to the Court's finding. The Court concluded that
a refugee claimant's right to life, liberty, and security of the person includes the
right to a fair hearing (and specifically an oral hearing).

Benefit of Rights – Individual

 Section 15 confers equality rights on “every individual”
 More specific term than “everyone” or “anyone” or “any person”
 Likely excludes corporations (however, the issue has not been decided by the Supreme Court)

Benefit of Rights – Citizens and Permanent Residents

 A person need not be a Canadian citizen to invoke Charter rights
 Recall Singh case – “Everyone” = every human being who is physically present in Canada
and by virtue of such presence amenable to Canadian law (ie include even those who have
entered Canada illegally)
 Citizenship is a required qualification for some rights: voting rights (s. 3), mobility rights (s.
6) and minority language education rights (s. 23)
 The mobility rights of s. 6(2) (but not s. 6(1)) apply to every citizen and “every person who
has the status of permanent resident of Canada” (a term that is defined in the federal
Immigration and Refugee Protection Act)

Issue: who is bound by the Charter? (Both levels of Government)

Section 32(1) This Charter applies:
a) to the Parliament and Government of Canada in respect of all matters within the
authority of Parliament including all matters relating to the Yukon Territory and Northwest
Territories; and
b) to the legislature and government of each province in respect of all matters within the
authority of the legislature of each province

Burden of Rights – Parliament or Legislature

 The Charter operates as a limitation on the powers of the Parliament (the federal legislative
body) and a Legislature (a provincial legislative body)
 Recall that any statute enacted by either Parliament or a Legislature which is inconsistent with
the Charter will be outside the power of (ultra vires) the enacting body and will be invalid
 What about Legislative Silence? (Vriend v. Alberta (1988))
o The Court also ruled that legislative silence — when the legislature fails to include
certain grounds of discrimination in a human rights statute — can be challenged if
it violates the principles of equality and fairness. The Court clarified that the
Charter’s guarantees of equality are not just about the explicit words in a law, but
about the substantive equality of all individuals.
o Legislative silence (when laws omit protections for certain groups) can be
 unconstitutional under Section 15 of the Charter if it violates equality rights.
 What about Legislative Exclusions? (Dunsmore v. Ontario (2001))
o The Dunsmore decision reaffirmed that legislative exclusions — when certain groups
are excluded from the benefits of a law — do not automatically result in a Charter
violation. The Court emphasized that the context and purpose of the exclusion are
important in determining whether it infringes on equality rights.
o Discrimination under Section 15: The case clarified that a differential treatment
based on legislative exclusions does not necessarily amount to unconstitutional
discrimination. A legitimate public policy purpose may justify the exclusion.

Burden of Rights – Statutory Authority

 Issue – what about bodies that are not technically federal Parliament or provincial legislatures,
but that exercise statutory authority? Examples – ministers, municipalities, police officers,
administrative tribunals
 The Charter applies. Why? Parliament / the legislature cannot pass laws in breach of the
Charter, so a body created by a statute cannot authorize action that would be in breach of the
Charter
 According to Hogg, the issue is the “power of compulsion” that is not possessed by a private
individual or organization
o Greater Vancouver Transportation Authority v. Canadian Federation of Students
(2009) Charter applies to a municipal by-law, made under statutory authority, that
purported to prohibit political postering on city buses
o Eldridge v. British Columbia (1997)
Does the Charter apply to a hospital, which did not provide sign-language interpretation
for deaf persons seeking medical services? YES
 This case affirmed that the Charter applies to government-funded services, such
as healthcare, and requires that public institutions like hospitals adhere to equality
standards under the Charter.

Burden of Rights – Government

 Governments sometimes act under prerogative powers, which are common law powers
possessed only by government; Examples: issuing passports, awarding honours, conducting
foreign affairs
 Governments also act under common law powers that are available to everyone; Examples:
entering into contracts, buying property
 Charter applies to governmental action taken under both kinds of common law powers
 “Control test” = is there an institutional or structural link with government? If yes, that entity
is bound by the Charter
o Is the entity subject to the control, direction, or influence of the government? If
the answer is yes, then that entity is considered to be bound by the Charter. This
principle ensures that government actions — even when carried out by non-
governmental organizations or private entities — adhere to the protections and
principles outlined in the Charter, particularly in cases where the government has
substantial influence over the organization.
 Highly case-specific

Burden of Rights – Courts

 Issue: Does the Charter apply to Courts? First No then Yes
 Section 32(1) of the Charter provides that the Charter applies to the Parliament and
government of Canada and to the legislature and government of each province.
 Governments are generally reluctant to use section 33 for unpopular laws, as doing so can
undermine public trust in democratic institutions and cause significant public backlash.
 Courts cannot strike down laws that use section 33 directly, but they can intervene on other
constitutional grounds.
Retail, Wholesale and Department Store Union v. Dolphin Delivery (1986
o The Supreme Court of Canada first said NO
o A court order prohibiting picketing was rejected as a breach of freedom of expression
because the SCC said that the Charter did not apply to the order of a court.
o on the basis that the word “government” in s. 32(1) of the Charter excludes courts

R. v. Rahey (1987)
o The SCC said YES
o The SCC found a delay by a criminal court breached an accused’s right to be tried
within a reasonable time (s. 11(b) of the Charter) – did not mention Dolphin Delivery!

British Columbia Government Employees’ Union v. British Columbia (1988)

o The SCC said YES again
o Tried to reconcile with Dolphin Delivery by holding that a court order is indeed subject
to Charter review (and noting that in Dolphin Delivery the court order resolved a
dispute between two private parties based on the common law)

Burden of Rights – Common Law

 Issue: does the Charter apply to the common law? (This issue is related to Courts, because
judges make the common law
 Recall: The Charter applies to Courts where a court order is issued on a court’s own motion
for a public purpose or in a proceeding in which the government is a party, or in a purely
private proceeding that is governed by statute law)
 Answer: The Charter does not apply to the common law regulating relationships between
private parties
 The Chart only applies to government action—not to disputes or rules between private
individuals or organizations acting independently of the government.
 See Hill v. Church of Scientology (1995) – “Charter values”
 Key: Even though the Charter doesn't directly apply to private parties, it can still influence
the common law (judge-made law). Here's how:
o Courts must interpret and apply the common law in a manner consistent with
Charter values.
o So if a case between private parties involves a common law rule (e.g., defamation,
trespass, contract), a judge may shape or evolve the rule in light of Charter
principles, like free expression or equality.

Burden of Rights – Private Action, Foreign Governments

 The Charter does not apply to private action (i.e. the relationships between private persons)
 Does this mean that a restaurant can discriminate against a patron based on the colour of his /
her skin?
o No – ONLY applies to Government laws and actions.
 The Charter does not apply to foreign governments
 What about extradition / deportation? Cases where persons are extradited to face the death
penalty in another country (United States v. Burns (2001)); or where persons are deported to
torture (Suresh v. Canada (2002)); or Canadian citizen held in Guantanamo Bay (Canada v.
Khadr (2008))
 It’s a 2 stage process:
First Step: a judge holds a hearing to look at evidence and
Second Step: The Minster of Justice decides whether to surrender the fugitive to the
requesting state.
 It could possible breach s7 (fundamental of justice) were to be extradited to a country where
he or she may be treated in a fashion that “shocks the conscience) Can v Schmidt [1987] If
death penalty is involved (USA) Canada may refuse extradition order. However, in Kindler,
two fugitives were handed over.
 Deportation and possible torture would usually be a breach of the Charter Suresh v Canada
( 2002)

United States v. Burns (2002):

 The Supreme Court ruled that Canada cannot extradite individuals to face
execution abroad unless the receiving country guarantees the death penalty
will not be imposed, or else it violates the Charter’s s. 7 rights.

When might the Charter apply outside Canada?

 If Canadian government actors are involved
 If Canadian officials or government agents are acting abroad, their conduct can be
subject to the Charter.

R. v. Hape (2007): The Supreme Court held that the Charter does not generally apply
to the actions of Canadian officials operating in a foreign country, if they are acting
in accordance with local law and with the consent of the host state.
 But: If Canada violates international law or acts without foreign consent,
Charter protections may apply.

Where there is a real and substantial connection to Canada

 Sometimes, if there is a strong enough Canadian connection — like if the harm
affects someone in Canada, or if a Canadian law has extraterritorial reach,
courts may consider applying Charter principles.

Canada (Justice) v. Khadr (2010): The Supreme Court found that Canada's conduct
in relation to Omar Khadr, a Canadian citizen detained at Guantanamo Bay, violated
his Charter rights — even though the events happened abroad. Why? Because
Canada was involved in gathering and sharing evidence with U.S. officials that
contributed to the ongoing rights violation.
 Normally, the Charter does not apply outside Canada, but it can apply when
Canadian officials are directly involved in actions that result in rights violations —
even abroad.

Waiver of Rights
 Constitutional rights can sometimes be waived by rights-holders:
 Certain Cases:
 o Example: waiving the right to counsel in a criminal proceeding under s. 10(b) of the
Charter, where a person would like to represent him or herself
o Example: Waiving your right to remain silent (s.7 11(c))
o Example: Right to Trial by Jury(s. 11(f))
 Waiver requires an informed, clear and voluntary choice to surrender the right
 Different than a failure to exercise the right, or the forfeiture of a right
 Waiver exists due to the presumption that the right is for the benefit of the person who chooses
to exercise it

Override of Rights
 Section 33(1) – Parliament or the legislature of a province may expressly declare in an Act of
Parliament or of the legislature, as the case may be, that the Act or a provision therefore shall
operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter…
The “notwithstanding clause”
 Section 33 of the Charter enables Parliament or a Legislature to “override” s. 2 or ss. 7 – 15
of the Charter.
o S. 2 (freedom of religion, expression, assembly and association); ss. 7-14 (legal rights)
and s. 15 (equality)
 Rights that cannot be overridden: ss. 3-5 (democratic rights), s. 6 (mobility), ss. 16-23
(language) and s. 28 (sexual equality)
 I.e. two tiers of rights: “common rights” that are subject to override and “privileged rights”
which are not subject to override- Why?
o Common" Rights = Rights that can be overridden by section 33:
 Section 2: Fundamental freedoms (expression, religion, assembly) Sections 7–
15: Legal rights and equality rights
o Privileged Rights = Rights that cannot be overridden:
 Section 3: Democratic rights (right to vote) Section 6: Mobility rights (moving
and working anywhere in Canada) Sections 16–23: Language and minority
education rights

Formal requirements:
o Must specify particular Charter provision(s) to be overridden
o Must be express
o Automatically expires after 5 years, and any re-enactments are also subject to 5
year “sunset” (s. 33(3))
A side question: What is another way that laws can remain on the books notwithstanding the
fact that they breach the Charter?
o Section 1 – Oakes test (Reasonable Limits)
o Section 24 (Remedies)

History of Section 33
 Part of the compromise in the patriation of the constitution; provinces were worried
that the Charter would limit the sovereignty of their legislatures
 Recall that Quebec did not agree to patriation (including the Charter) and so in the
beginning added a standard form notwithstanding clause to each of the statutes in force
in Quebec (which ended in 1985 with Liberals elected)
 Ford v. Quebec (1985)
 SCC held that a law banning the use of languages other than French in commercial
signs was an infringement of freedom of expression
 Provincial legislature reenacted the law prohibiting the use of the English language in
outside commercial signs with the notwithstanding clause (note that the
notwithstanding clause lapsed in 1993 after 5 years, and the Quebec Legislature lifted
the ban on English language signs and replaced it with legislation that required only
that French be predominant (no notwithstanding clause was used)
 s. 33 is used infrequently – only used 3 times outside of Quebec
 Recent Ontario attempt; secularism law in Quebec (Bill 21) – more to come?

Judicial Review
 A current issue: to what extent is the exercise of the override power subject to judicial
review?
 The use of the override needs to conform with s. 33 (only applies to certain rights;
must be specific as to the statute that is exempted from the Charter and the rights
overridden; may not be given retroactive effect) – these requirements are mainly
formal and not very demanding
 Is s. 33 subject to s. 1 of the Charter? NO
o Section 33 bypasses Section 1. A government can invoke s. 33 even if a law
would fail the s. 1 Oakes test. It’s a political override, not a judicial one.

 What do you think about s. 33 (the notwithstanding clause)? Is it “an intrinsically

sound solution to the dilemma of rights and courts”? (see Hogg p. 39-11)
o I agree with Hogg in principle: s. 33 can be a sound solution if used rarely and
responsibly — as a democratic “safety valve.” But its legitimacy depends on
restraint. If governments start using it routinely to avoid political heat, it risks
undermining the Charter altogether.

Example: If a province uses s. 33 to pass an "Oppression Act" that violates fundamental Charter
rights (e.g., freedom of expression, equality rights, etc.), it can override those rights for up to five
years, even if the law is unjustifiable under Section 1.During this time, there wouldn’t be a direct
Charter-based legal remedy through the courts to stop the law, but political processes — elections,
public opposition, and advocacy — could still provide avenues to challenge or repeal the law.

 Key Point: The law remains in force for five years, and the province can choose to
renew it once the term expires.
 During that time, courts cannot strike down the law simply because it violates
Charter rights — as long as it’s clearly stated that it operates notwithstanding the
Charter.

What Can Be Done to Challenge the Law?

While S. 33 prevents courts from striking down the law directly based on Charter violations, there
are still avenues for challenge:
a. Public Resistance and Political Accountability:
 The political process is the primary check in this case.
 If the provincial government passes the "Oppression Act," it could face immense political
backlash, and voters might choose to elect a new government at the next election.
  Public protest, media attention, and activism can force the government to reconsider or
amend the law. Public opinion can play a huge role in holding governments accountable —
especially when people realize their rights are being stripped away.
b. Court Challenges on Other Grounds:
 Even though s. 33 blocks Charter-based challenges, the law can still be challenged on
other grounds.
o For example, if the law violates other constitutional principles (e.g., provincial
jurisdiction, administrative fairness, etc.), a challenge could succeed on non-
Charter grounds.
o In cases where a law violates other statutes or principles of law, courts can still
potentially intervene.
c. Political Action:
 Amendments: Legislators can use their own power to amend or repeal laws.
 Elections: The notwithstanding clause is subject to re-evaluation after each five-year
period. If the law is harmful enough, it could be a key issue in the next election, leading to
a shift in power and potentially the repeal of the law.

Limits to the Power of the Notwithstanding Clause:

There are constitutional limits on how far a province can go, and even though s. 33 provides
significant power, there are still some things that no province can override:
 Essentially entrenched rights such as democratic rights (e.g., right to vote, right to
participate in elections) cannot be overridden by s. 33.
 Federal and provincial powers are defined, and a province cannot pass a law that goes
beyond its jurisdiction. If the law violates federal constitutional principles or powers
reserved to the federal government, it might be struck down on those grounds.

Other Safeguards (But Not Full Protection):

 International Human Rights Law: Canada is a signatory to various international human
rights conventions, and there could be international pressure on the government to
comply with international human rights standards.
 Public Opinion and Pressure: Public outrage and pressure from civil society could
influence the government to back down or amend the law.

Limitation of Rights
Section 1 of the Charter:
o The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out
in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
o Charter rights are not absolute
o It is the courts that set the limits in the end

Two stages of review contemplated by section 1:

1. The court must decide whether the challenged law has the effect of limiting one of the
 guaranteed rights (IF NO – END) (IF YES #2)
2. If yes, the court must decide whether the limit is a reasonable one that can be demonstrably
justified in a free and democratic society
o Key case: R. v. Oakes (1986) = the “Oakes test”

Defining Limits
o Recall section 1 of the Charter: “The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic society.”
Let’s assess the limits (the “Oakes Test”):
o Prescribed by law (legislation or proposed legislation)
 meaning the restriction on the right must be set out in a law that is clear,
accessible, and precise enough that people can understand what is prohibited
and what is permitted.
o Reasonable and demonstrably justified limits which means a sufficiently important
objective
o Reasonable and demonstrably justified limits also means proportionality
o Rational connection
o Least drastic means
o Proportionate effect

Burden of Proof in Section 1:

o Burden of Proof in S1 analysis - The burden is on the person alleging a breach of the
charter. If established, then the burden shifts to the government rep. who is supporting
o The standard of Proof: By a preponderance of probability
o Evidence: Generally required.

Accessible – statues, rule of common law, regulations will qualify. Irwin Toy v Que [1989]
Not Accessible – directives, guidelines issued by government departments or agencies.
Committee for Cth of Can. v Can [1991]
o This incorporates two crucial values of the rule of law. 1) The law must be adequately
accessible to the public and 2) the law must be formulated with precision to enable people
to regulate their conduct by it and guidance to those who apply it.
o Precision- prescribed by law test- “where there is no intelligible standard and where the
legislature has been given a plenary discretion to do whatever seems best in a wide set of
circumstances.(Irwin Case)
o “Void for Vagueness?” It will be void for vagueness if its prohibitions are not clearly
defined. It may not provide clear standards to avoid arbitrary and discriminatory
applications by those charged with enforcement. No reasonable notice of what is
prohibited so citizens can govern themselves. Irwin Case)

PART 1 -Prescribed by Law

o Section 1 of the Charter provides that Charter rights are subject to “such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic society”
o So an act that is not legally justified can never be justified by s. 1
Little Sisters Book and Art Emporium v. Canada (2000)
o Why is this a requirement in s. 1?
 All official action in derogation of rights must be authorized by law in order to
preclude arbitrary and discriminatory action by government
 Citizens must know what is prohibited so they can act accordingly (which means
that the law must be accessible to the public and formulated with sufficient
precision)
 “Law” includes statutes (of course) but also delegated legislation such as
regulations and by-laws
 “Law” can also include the common law (see (R. v. Swain (1991))
 “Law” can also include certain binding government policies or rules (as long as
accessible and sufficiently precise) – recall Greater Vancouver Transportation
Authority v. Canadian Federation of Students (2009)
 Limiting law must not be too vague (which relates to the requirement that the
“law” must be sufficiently precise) – see Irwin Toy v. Quebec (1989)

Reasonable and Demonstrably Justified

o The requirements (reasonable, demonstrably justified) are not treated separately by the
courts
o So after you find that the limit is prescribed by law, turn to the rest of the Oakes test
o Oakes Test: sets out a pathway to determine whether there are reasonable and
demonstrably justified limits
1. Sufficiently important objective (because limiting a Charter right)
2. Proportionality
 Rational connection (the law must be rationally connected to the objective)
3. Least drastic means (the law must impair the right no more than is necessary to
accomplish the objective)
4. Proportionate effect (proportionality between the deleterious and salutary effects
of the measures)

The “Oakes Test”

1. Prescribed by law
2. Pressing and substantial objective (R. v. Oakes, para. 69)
3. Proportionality Test (R. v. Oakes, para. 70)
i. Rational connection
ii. Minimum impairment
iii. Proportionate effect

PART 2 - Pressing and Substantial Objective (Reason or purpose behind limiting the right)
o The law must pursue an objective that is sufficiently important to justify limiting a
Charter right
o Sometimes it is difficult to discern the objective of the legislatures at the time the law was
enacted.
o The statement of the objective should be related to the infringement of the Charter and
supply a reason for infringing on a Charter right. It may be unknown what the
legislator’s objective is with enacting a law.
o Careful creating objective because it can be a high or low level of generality. ie- stopping
immigrants or stopping Chinese Immigrants High level of generality is desirable for the
 objective but can create problems for the 3rd step-least dramatic means-when time to
justify the law. How general should one make the objective-no answer. activism or
restraint plays a crucial but inarticulate role in the choice.
o When framing the law’s objective, you can do it at:
 High level of generality: e.g., “to protect public safety”
 Low/specific level: e.g., “to prevent violent protests in front of hospitals during a
pandemic”
o Higher-level objectives seem more noble or legitimate, but:
o They make it easier to justify a rights limitation under step 1.
o However, they may hurt the government at step 3 of the Oakes Test (minimal
impairment), because if the goal is broad, there may be many less harmful ways to
achieve it.

 RJR MacDonald v. Canada (1995) – what was the objective in banning the
advertising of tobacco products and was it sufficiently important? (remember that
tobacco itself was not banned)
 Vriend v. Alberta (1998) – challenge to Alberta’s human rights legislation, so
difficult to look to the objective of the law because the problem with the law was
the omission of sexual orientation (of course, the objective of the law was to
protect human rights, so the court had to find that the objective for the purposes of
analysis was the failure to include sexual orientation within the scope of
protections)
 R. v. Big M Drug Mart (1985) – federal Sunday closing law – what was the
objective? Compelling the observance of the Christian sabbath (which would
infringe freedom of religion)? Or just to provide a common day of rest (a secular
objective)? Note that the court held in this case that objectives cannot shift over
time – the question is the intent of the legislature at the time of enactment
 What about cost? Ie the limit on the Charter right saves money… See Hogg p. 38-
28
 Rosenberg v Canada (1998)- Income tax Act offended s15 because it
discriminated against same sex couple which were not included in the Act.
 Irwin Toy v Quebec (1998) SCC upheld a Quebec law that prohibited advertising
directed at children under 13. It infringed on freedom of expression but was
justified by s1. It had a very low level generality objective in that it protected
children (vulnerable) from advertising.
o Importance of Objective
 Quebec’s “distinct society” Dickson in Oakes stated “respect for cultural and group
identity” suggesting the court would be willing to use s1 to enable national norms
of the Charter to accommodate at least some of the diversity that is the role of the
federal system to permit.
 G of Quebec v Ford (1988)- Court held: banning of English had gone too far and
could not be justified. No English on signs.
 R v Big M Drug Mart (1985)- Is the only one case where the courts rejected the
legislative objective. No Sunday shopping.
o Shifting Objectives
 R v Big M Drug Mart (1985)- Objective did not in fact cause the enactment of the
law. Dickson CJ rejected the notion that the purpose of a law might change over
time with changing social conditions. Held: Purpose is a function of the intent of
 those who drafted and enacted the legislation at the time, and not of any shifting
variable.
 R v Butler (1992)- original objective was morality and held this was insufficient to
limit the Charter but the provision that it promoted sexual equality gave it a
“permissible shift in emphasis”. This made the objective into a generality that
could be remain constant over time. Hogg- path around the rule against shifting
objectives.
 R v Zundel (1992)-held that the prevention of harm from deliberate falsehoods
was too general a statement of the law’s objective.
o Costs/Objectives Is it a possible justification of a limit on a Charter right that will save
money?
 Singh v Minsters of Employment and Immig (1984)- Immig argued full hearing
would impose an “unreasonable burden” on the resources of government. It was
held that a full hearing right had to be provided.
 R v Lee (1989)- reducing administrative inconvenience and reducing expense are
not, in my view, sufficient objectives to override such a vital constitutional right.
o One Cost Case Objective
 Newfoundland v NAPE (2004)- is the only case where the court accepted that the
saving of government money is a sufficiently important objective to justify a limit
on a Charter right. Binnie J stated-normally financial considerations would not be
suffice but the government was in a financial crisis.

PART 3 (a) Proportionality – Rational Connection

o Is the law “rationally connected” to the objective of the law? Causation question.
o “How well the legislative garment has been tailored to suit its purpose”
o Benner v. Canada (1997) – law imposed more stringent requirements for Canadian
citizenship on a person born outside Canada before 1977 to a Canadian mother vs those
born to a Canadian father – failed the rational connection test because the children of
Canadian mothers could not be rationally regarded as more dangerous than the children
of Canadian fathers.
 Court Held: the objective was justified in keeping out dangerous citizens but it was
not rational to discriminate against kids from Canadian mothers as more dangerous
as ones from Canadian fathers.
o RJR v Mac Donald v Canada (1995)- He concluded that there was no rational
connection between the advertising ban and the objective of reduced consumption.

PART 3 (b) Proportionality – Minimum Impairment – Most Important

o The law should impair as little as possible the right or the freedom in question
o Most S. 1 cases turn on this element of the Oakes Test
o Requires a demonstration that the government considered the full range of alternatives and
found them less effective or more restrictive of Charter rights – but note that this seems to
suggest that courts could in theory always strike down law for this reason as one could
always come up with a least drastic way to impair a right, if one uses imagination
o Note: in almost any situation it could be easier to come up with a less drastic means. In a
federal country like Canada judges have to allow provincial legislatures a “margin of
appreciation” so provinces can provinces different social objectives. R v Advance Cutting
 & Coring [2001]
o Courts need to demonstrate a Margin of Appreciation
 They need to step back and say, listen, we are not in your shoes, government. We
are respecting the division of powers. And we will allow governments to decide if
this was the most least restrictive way of satisfying the sufficiently important
objective by restricting the Charter right.
 For example, as I've used this example already, public safety, right? These are
important, you know, important parts of our society. But we also have these rights
and freedoms that we enjoy as citizens, as individuals within the constitutional
society. So if the government is going to restrict our freedoms in service of one of
these objectives, we've got to weigh up whether or not the balance is just right.

PART 3 (c) Proportionality –Proportionate Effect

o The need for a proportionality between the effects of the measures which are responsible
for limiting the Charter right or freedom and the objective which has been identified as of
sufficient importance.
o Does the importance of the law’s objective outweigh the severity of the Charter right
infringement?
o The SCC has noted that the first stages of the Oakes test all take into account the law’s
purpose (pressing goal, rational connection, minimum impairment); only the final stage
takes “full account of the severity of the deleterious effects of a measure on individuals or
groups” (see Alberta v. Hutterian Brethren of Wilson Colony (2009) – re driver’s
licence photos)
o R v Edwards Book and Art (1986) -The effects of the limiting measures, must not be so
severely trench on individual or group rights that the legislative objective is outweighed by
the abridgment of rights.
o Dagenais v CBC (1994)- The element of proportionality should also take into account the
“proportionality between the deleterious and the salutary effects of the measures.
o The fourth step is reached only after the means have already been judged to be rationally
connected to the objective (2nd step) and the least drastic of all the means of
accomplishing the objective( 3rd step). What the requirement of proportionate effect
requires is a balancing of the objective sought be the law against the infringement of the
Charter.
o All the courts go through this step during cases Hogg believe that it has never been used.
An affirmative answer to the 1st step, (sufficiently important objective,) will always yield
an affirmative answer to the 4th step proportionate effect.

The Oakes Test in Application to Certain Rights

o Maybe the Oakes Test is too stringent for equality rights? (Andrews v. Law Society of
British Columbia (1989) – case about whether British Columbia’s requirement of
Canadian citizenship for admission to the legal profession infringed s. 15 of the Charter)
o s. 7 Charter breach probably cannot be justified under s. 1 (i.e., a law that is not in
accordance with the principles of fundamental justice probably cannot be justified as a
“reasonable limit”)?
o Note that the Oakes framework does not apply to discretionary decisions by administrative
tribunals and other decision-makers exercising statutory discretion; administrative
law/judicial review analysis applies
Equality Rights
Section 15 of the Charter
 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.
 15 (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.
Section 28 of the Charter:
 Notwithstanding anything in this Charter, the rights and freedoms referred to in it are
guaranteed equally to male and female persons.

What is “Equality”?
Four formulations of the idea of equality in s. 15:
 Equal before the law
 Equal under the law
 Right to equal protection
 Right to equal benefit
So what is “equality”?
 Absolute equality i.e. treat everyone the same?
 Treat like people alike? (Aristotle)
 Similarly-situated test?
 Formal equality?
 Substantive equality?

Aristotle’s definition- he said “justice considers that persons who are equal should have
assigned to them equal things.” and “there is no inequality when unequal are treated in
proportion to their inequality existing between them.” Persons are alike should be treated
alike and people who are different should be treated differently in proportion to the
difference. It is stated at too high of level of generality to be useful.

Discrimination
 Section 15 of the Charter guarantees equality “without discrimination” based on certain
grounds, which means that the operative concept is not equality, but discrimination
 What is “discrimination”? The analytical framework first set out by the SCC in Andrews
v. Law Society of BC (1986)- First Test for Discrimination was as follows:
o Is there differential treatment?
o The challenged law imposes (directly or indirectly) on the claimant a
disadvantage (in the form of a burden or withheld benefit) in comparison with
other comparable persons; and
o The disadvantage is based on a ground listed or analogous to a ground listed in
s. 15.

Not analogous grounds are:

o Place of residence has not been accepted ( except Indians on Reserves)
o Occupation has not been accepted- so laws denying bargaining rights to police
officers cannot be challenged under s15.
o Substance orientation is not an analogous ground- so laws prohibiting the use of
marijuana cannot be challenged under s15.
o Privileges for the Crown and other public authorities in litigation cannot be
challenged under s15.

Listed or Analogous Grounds

o Was every single legislative distinction open to consideration under s. 15 of the
Charter? Or do the list of grounds in s. 15 provide a threshold barrier that would
reduce the flow of cases that could be considered under s. 15?
o Andrews v. Law Society of British Columbia (1989) – challenge to the statutory
requirement of the province of B.C. that members of the bar had to be citizens of
Canada
o The Andrews case clarified that s. 15 was a prohibition of discrimination, which
involved the imposition of a disadvantage on an individual by reason of the
individual’s possession of a characteristic that was either listed in s. 15 or was
analogous to those listed in s. 15
o In Andrews, citizenship qualified as an analogous ground
o This clarification severely restricted the scope of s. 15
o Listed grounds in s. 15: race, national or ethnic origin, color, religion, sex, age
or mental or physical disability

What are analogous grounds? Include personal characteristics of individuals that

are unchangeable (or immutable) (at least, without great difficulty or cost); not
voluntarily chosen; describe what a person is rather than what a person does.

o As such, the SCC definition is that an analogous ground is one based on “a

personal characteristic that is immutable or changeable only at unacceptable
cost to personal identity” (Corbiere v. Canada (1999))
o Corbiere v. Canada (1999)) "Aboriginality-residence" became a key
analogous ground in this case
o Three analogous grounds have been recognized:
1. Citizenship
2. Marital status
3. Sexual orientation

Citizenship - (Andrews) was the first analogous ground Only La Forest J- tried to
articulate a reason.- “that citizenship was a personal characteristic that is
typically not within the control of the individual and in this sense immutable.”
Marital Status –second analogous grounds (Miron v. Trudel ( 1995)-concerned
the statutory provision of accidents benefits to a “spouse” a term that was defined
as a person legally married to the victim. The claimant was a common law spouse
succeeded in striking down the requirement of marriage. 4 said yes and 4 judges
said no. One said it didn’t matter.
  The Court recognized "marital status" as an analogous ground under
Section 15(1). Although "marital status" is not listed explicitly in the
Charter, the Court found it to be an analogous ground because it relates to
personal characteristics that can affect an individual’s life opportunities
and experiences.
 The discrimination arose because the law treated married couples
differently from common-law couples, and the difference in treatment was
not justified.

Sexual Orientation
(Egan v Canada (1995) 8/9 judges decided that sexual orientation was an analogous
ground.
La Forest J- described sexual orientation as “deeply personal characteristics that is
either unchangeable or changeable only acceptable personal costs.”
The claimants were a same sex couple who were seeking a spousal allowance
under the federal Old Age security program and did not succeed. The ruling
however, of analogous grounds was very clear.

Vriend v Alberta (1998)- Court held that Alberta’s Human Right’s code violated s15 by
excluding same sex couples from spousal obligations.
Little Sisters Book and Art Emporium v Canada (2000)- the Court held that the
practices of custom officials in obstructing the importation of gay and lesbian
communities was a breach of s15.
Egale v Can ( 2003)- BC courts held, along with other provinces that opposite sex
requirements for marriage was contrary to s 15, thereby legalizing same sex marriage in
several provinces.

Human Dignity? (New Element of Section 15 Violation)

 Andrews is left behind eventually, as the court proceeded to consider what constituted
“discrimination” for the purposes of s. 15 of the Charter
 Something more is required to find discrimination rather than just 1) a disadvantage
2) based on a listed on analogous ground – what is this mysterious something?
Hinted at by the SCC in Andrews…
 Law v. Canada (1999) – unanimous SCC decision that provided a new interpretation
of s. 15 re age discrimination for survivor benefits
o The Court ruled against Nancy Law. It found that the CPP provision did not
violate Section 15 in a way that warranted a Charter remedy.
o S. 15 applied only to legislative distinctions based on a listed or analogous
ground;
o Discrimination in s. 15 involved an element additional to a simple distinction
based on a listed or analogous ground;
o The Court created a 3-part test to evaluate Section 15(1) claims (later refined
in R. v. Kapp and Fraser).
1. Differential Treatment (Does the law treat the claimant differently
than others?
2. Based on an Enumerated or Analogous Ground (Is that difference based
on a prohibited ground, like age, sex, race, etc.?
3. Is the Treatment Discriminatory in a Substantive Sense?( Does the law
 demean human dignity, by reinforcing disadvantage or
marginalization?)

o Iacobucci J in Law did not define “human dignity”. He did define four contextual
factors not to be taken exhaustively that were help into the inquiry.
 The existence of pre-existing disadvantage, stereotyping,
prejudice and vulnerability
 The correspondence between the distinctions and claimant’s
characteristics or circumstances
 The existence of ameliorative purposes effects on other groups
 The nature of the interest effected.
o The additional element was an impairment of “human dignity”.
 So many problems with this requirement:
o It seems to take some of the analysis out of the s. 1 stage and bring it forward to
the s. 15 breach stage (ie some legislative distinctions based on age, in Law, are
reasonable because they are important, prudent etc.?)
o Human dignity is hard to define!
o Burden rests on the rights claimant to demonstrate that his or her human
dignity is at stake – this is burdensome (R. v. Kapp)

R. v. Kapp (2008)
 The SCC stated that while human dignity is an essential value underlying the s. 15
equality guarantee, it is difficult and confusing to apply as a legal test and operates
as an additional burden on equality claimants.
 However, the court did not revert back to the Andrews formulation as Professor Hogg
hoped i.e. the complainant should only need to prove a disadvantage based on listed or
analogous grounds
 Rather, the court still relied on four factors to find “discrimination” (much like the
factors considered in the “human dignity” analysis), namely pre-existing
disadvantage; stereotyping, ameliorative purpose, nature of interest affected.
 In other words, a third step is still required beyond establishing a disadvantage based
on listed or analogous grounds
 The court then goes back and forth and around and around on what this third element
should be….
Step 1: Does the law create a distinction between individuals or groups based on an
enumerated or analogous ground?
 The first step asks whether the law creates a distinction between
individuals or groups based on characteristics such as race, sex,
age, disability, or other analogous grounds (e.g., Indigenous
status).
 In the Kapp case, the distinction was based on race —
specifically, giving special fishing rights to Indigenous peoples
(as opposed to non-Indigenous peoples).

Step 2: Does the distinction create a disadvantage, perpetuate disadvantage, or

stereotype the group?
  The second step asks whether the distinction creates a
disadvantage, perpetuates a disadvantage, or reinforces
negative stereotypes about the group affected by the law.
 This part of the test also considers substantive equality: does the
distinction contribute to inequality, or does it serve a remedial
purpose (e.g., addressing historical disadvantage or promoting
equality for the affected group)?

If not human dignity, then what?

 Withler v. Canada (2011) – SCC upheld a statutory pension plan for federal civil servants
which used the age of a plan member at the time of his or her death as a factor in
determining the value of the benefit payable to the dependant; For social benefit programs,
key question is “whether the lines drawn are generally appropriate, having regard to the
circumstances of the persons impacted and the objects of the scheme” (para. 67)
 Quebec v. A (2013) - Case about married vs common law spouses. (1) Does the law create
a distinction based on an enumerated or analogous ground? If so, (2) Does the
distinction have the effect of perpetuating arbitrary disadvantage?
 Kahkewistahaw First Nation v.Taypotat (2015) – Age discrimination argument based
on educational requirements to be elected chief. 1) Does the law create a distinction based
on an enumerated or analogous ground? If so, (2) Does the distinction have the effect of
perpetuating arbitrary (discriminatory) disadvantage? Historical positions of disadvantage
relevant at the second stage.
 Quebec v. Alliance du personnel professional (2018) – Pay equity challenge. 1) does the
law create a distinction based on listed or analogous grounds; 2) does the law impose
burdens or deny a benefit in a manner that has the effect of reinforcing, perpetuating, or
exacerbating disadvantage? (no mention of “arbitrariness”; rather, the focus is on
disadvantage)
o Can s. 15(2) be invoked to defeat a s. 15(1) challenge brought by a member of a
disadvantaged group if the purpose of the law being challenged is the improvement
of the conditions of the same disadvantaged group?
o The majority held: No.
o S. 15(2) cannot bars. 15(1) claims by the very group the legislation aims to protect.

Alliance Test
 The Court gives us a new legal test for a breach of s. 15: Quebec v. Alliance (2018) –
pay equity case
1. The challenged law creates a distinction, on its face or in its impact, on
the basis of an enumerated or analogous ground; and
2. The distinction imposes a burden or denies a benefit in a
discriminatory manner, by having the effect of reinforcing,
perpetuating or exacerbating disadvantage

 The Alliance test omits any discussion of prejudice or stereotyping (which was a focus
in the Kapp decision)
 The Alliance test also omits any discussion of arbitrary disadvantage (which was a
focus in the Taypotat decision)
 Instead, the focus at step two is now on whether a law reinforces, perpetuates or
exacerbates disadvantage (not on stereotyping, prejudice or “arbitrary” disadvantage)
Fraser v. Canada (2020)
 Job-sharing program in the RCMP used mostly by women with young children; those
enrolled in job sharing were not permitted to “buy back” full-time pension plan credit vs.
full-time RCMP members who took unpaid leave
 Allegation of indirect discrimination because the program had an adverse impact on
women based on sex and / or family/parental status
 The court took the opportunity to restate the test for a breach of s. 15 of the Charter…
 Majority (per Abella J.) reaffirmed the test is that a claimant must demonstrate that a
law:
1. Creates a distinction (directly or indirectly), on its face or in its impact,
on the basis of an enumerated or analogous ground; and
2. Imposes a burden or denies a benefit “in a manner that has the effect of
reinforcing, perpetuating, or exacerbating disadvantage.”
 At the second stage, the focus is on the impact of the harm caused to the affected group,
which could be economic, social, psychological, physical or political, and must be viewed
“in light of any systemic or historical disadvantages faced by the group”
 It is not necessary to establish the existence of prejudice or stereotyping
 Any consideration about “arbitrariness” should be left to the s. 1 stage of the analysis
under the Oakes test

R. v. Sharma (2022)
 In this recent SCC case, the majority of the court expounded on the legal test for a breach
of s. 15(1) of the Charter
 This arguably represents a departure from the legal test that was set out in Alliance (and
affirmed in Fraser)
 The court arguably changed the legal test in the following ways….

Step 1: The challenged law creates a distinction, on its face or in its impact, on the basis of
an enumerated or analogous ground (however, the issue of causation was arguably changed
in Sharma in the following ways)
o The majority in Sharma found that the claimant must present sufficient evidence
to prove the impugned law, in its impact, creates or contributes to a
disproportionate impact on the basis of a protected ground. This is a causation
question. Correlation is not enough. Evidence cannot simply come from the
claimant or through judicial notice. This could make it harder for a claimant to
prove indirect discrimination.
o Sharma clarified that the causation of harm is not simply a matter of showing a
direct link between the law and disadvantage. The Court found that the
causation of harm involves considering both the impact of the law and its
justification. In other words, even if a disadvantage is caused by a law, it may not
constitute discriminatory harm if the law is justifiable for reasons like
immigration regulation.
o Sharma helped to clarify that differentiation based on citizenship status does not
automatically violate Section 15. In situations where there is legitimate
governmental differentiation, like in the immigration context, Section 15 does not
mandate absolute equality between citizens and non-citizens.
 Step 2: The distinction imposes a burden or denies a benefit in a discriminatory manner, by
 having the effect of reinforcing, perpetuating or exacerbating disadvantage (however,
the issue of disadvantage was arguably changed in Sharma in the following ways)
o It is difficult now to argue that the test still includes where a law “perpetuates”
disadvantage. The majority in Sharma found that there is no disadvantage
where a law simply fails to remove disadvantage that exists independently
of the law (i.e. where the law simply perpetuates disadvantage that already
exists).
 Arbitrariness can indeed be considered as a factor in determining whether disadvantage
exists (contrary to what the court said in both Alliance and Fraser), although it is not
technically necessary to the analysis, according to the court.
 The broader legislative context of a legislative distinction should be considered in
analyzing disadvantage.
 Section 15(1) does not impose a general positive obligation on the state to remedy social
inequities or enact remedial legislation.

Disadvantage
 Recall that the analytical framework under s. 15 is as follows:
o The law creates a distinction (directly or indirectly), on its face or in its impact, on
the basis of an enumerated or analogous ground; and
o Imposes a burden or denies a benefit “in a manner that has the effect of reinforcing,
(perpetuating?), or exacerbating disadvantage.”
 How to know if you are at a disadvantage? You must compare yourself to others ie use a
comparator group
o Select the right comparator group
o Then compare the treatment provided by law

Comparator Groups
 In order to prove discrimination, one must compare the legal position of the claimant and
that of other people to whom the claimant might legitimately invite comparison – how to
select the right comparator group?
 Find the group that shares with the claimant all the characteristics that qualify for the
benefit (or burden) except for the personal characteristic that is listed or analogous
 See Auton v. British Columbia (2004) – Hogg Chapter 55
 Choosing the right comparator group is often essential to the outcome of the case
 In Withler, the court acknowledged the failings of “mirror” comparator groups; sometimes
they fail to capture substantive inequality
 The presence of disadvantage (unequal treatment) requires a comparison between the
legal position of the claimant and that of to other people to whom the claimant may
legitimately invite comparisons.
 This involves two inquires:
1. Whether the group to which the claimant compares herself is the
appropriate comparator group
2. whether the distinction that the law draws between the claimant and the
comparator group is disadvantageous to the claimant.
 Hodge v Canada (2004)- held that she selected the wrong comparison group. The
correct comparative group was not married souses living apart but former spouses.
Only a person who was a spouse at the time of the death was entitling to the benefit.
The claimant suffered no disadvantage on account of her marital status.
  Auton V BC ( 2004)- a claim of discrimination was made by autistic children and their
parents. They complained that the province did not fund the “applied behaviour
therapy”. Lower court found the province in breach s15. SCC- reversed the decision
because the lower courts erred on the comparative groups. The court stated that it was
wrong to compare autism claimants with recipients of fully funded therapies because it
ignored the fact that autism therapy had only recently become recognized as medically
necessary. Funding of new therapies “may be legitimately denied or delayed because
of uncertainty about a program and had administrative difficulties related to its
recognition and implementation.

Measuring Disadvantage
 Once the correct comparator group has been selected, it is necessary to compare the
treatment provided by the law to the claimant with the treatment of the comparator group.
 Only if the law treats the claimant less favorably
 Is this a subjective or objective analysis? See Hogg Chapter 55

Objective vs. Subjective Analysis

 Objective approach was applied in R v Swain- about being exposed to infinite sentencing if
charged with an offence and suffering from mental disorder.
 Court in Law v Canada (1999) stated that both subjective and objective standard should be
employed. The inquiry was to be undertaken “from the perspective of the claimant and
from no other perspective” but the claimant assertion must be supported by an objective
assessment of the situation.

Objective Standard
The objective standard focuses on an external, societal perspective to determine whether a
disadvantage exists. Under this approach, the court asks whether the law or government
action results in a disadvantage that would be recognized by reasonable persons in society,
regardless of the individual’s personal experiences or subjective feelings.

In the context of Section 15, the objective standard requires a disadvantage to be assessed in
terms of how the law treats individuals or groups, rather than focusing on how a particular
individual experiences or perceives that treatment. This standard tends to involve the analysis
of:

 Historical and societal context: Whether the law has a history of affecting the group in a
disadvantageous manner (e.g., marginalized or discriminated against groups).
 Social harm: Whether the disadvantage leads to tangible harm (e.g., economic
exclusion, reduced access to benefits, or social stigma).

This approach allows courts to assess disadvantages that might not be immediately obvious to
an individual but are significant from a societal or collective perspective. It focuses on
whether groups as a whole face systemic disadvantages that have social, economic, or
cultural impacts.

Example: Andrews v. Law Society of British Columbia (1989), the Supreme Court of
Canada applied an objective standard to assess whether a law that required Canadian
citizenship for bar admission disproportionately disadvantaged non-citizens. The Court
concluded that the law imposed a disadvantage because it excluded a group from the legal
profession, which would be objectively viewed as discriminatory.

Subjective Standard: The subjective standard focuses on the individual experience of the
person who is claiming disadvantage. This approach examines how the disadvantage affects
the individual’s personal and lived experience, rather than how it would be perceived by
society at large.
Under this standard, the court looks at:
 The person’s own feelings of disadvantage or harm.
 How the individual perceives the law's impact on their rights, opportunities, or status.
 The impact on the person’s dignity and equality, assessing if the person feels excluded,
devalued, or stigmatized by the discrimination.

This approach focuses on the individual’s perspective, considering how the law might
perpetuate feelings of inferiority or marginalization. In some cases, it considers how the
disadvantage affects self-worth or how people see themselves within the context of society.

Example: In Law v. Canada (Minister of Employment and Immigration) (1999), the

Supreme Court of Canada used a subjective standard when evaluating whether a
disadvantage resulted from an exclusionary provision under the Unemployment Insurance
Act. The Court considered how the plaintiff’s exclusion from benefits, despite having paid
into the system, impacted her sense of equality, fairness, and dignity.

Group Disadvantage
 R. v. Turpin (1989): claim dismissed because claimants not members of disadvantaged
group. Wilson J- in is was not sufficient for the equality claimant to show that he or she
was disadvantaged by the impugned law. It was necessary but not sufficient. They have to
go further and show the distinction employed by the statue was one that defined a group
that was disadvantaged in other respects.
 R. v. Hess (1990): This does not mean that men could never raise a discrimination claims
 Miron v. Trudel: Group disadvantage only an indicator of analogous ground, not
prerequisite
 As Professor Hogg notes in Chapter 55, the s. 15 analysis no longer focuses on human
dignity; rather, it focuses on disadvantage. Disadvantage is defined broadly, so a claimant
does not need to prove that he or she is a member of a group that is generally
disadvantaged. It is enough to prove that he or she is part of a group that is disadvantaged
by the particular legal distinction being challenged. Is showing aN evidence of general
( or group) disadvantaged is a prerequisite to a s15 equality claim? 8 judges- said that
membership in a disadvantaged group was not a prerequisite, but merely an indicator or
indicium of an 67 68 analogous ground.

Direct and Indirect Discrimination

 A law can be discriminatory on its face (direct)
o Ex. a law that excludes women from the police force would be discrimination on its
face
 in its effect (indirect) or in its application
o Ex. a law that imposes weight and height qualifications for admission to the police
force would be discriminatory (whether or not intended) because most women
 aren’t as large as men.
 The concern is with substantive equality
 Indirect- A law may be discriminatory on its application- a law that prescribed no
discriminatory qualifications for admission to the police force would be discriminatory in
its application if police recruitment procedures led to the rejection of a disproportionate
number of female applicants.
 Discrimination can be unintended

Affirmative Action (Section 15(2))

 Section 15(2) of the Charter provides:
o 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.
 Section 15(2) clarifies that Section 15(1) should not be interpreted to prevent the
government from creating laws, programs, or activities that are designed to ameliorate
the conditions of disadvantaged individuals or groups.
 It allows for affirmative action or remedial measures to address systemic inequalities
or disadvantages that certain groups face, even if these measures create distinctions based
on characteristics such as race, sex, or disability.
 Issue: Is s. 15(2) an exception to s. 15(1), or a clarification?
 Why does this matter? If it is an exception to s. 15(1), programs that require a member of a
disadvantaged group to be preferred to a person who may be better qualified but who is not
a member of a disadvantaged group are not a breach of the Charter (and therefore, there is
no need to look to s. 1 of the Charter); this assumes that such programs are prima facie
violations of s. 15(1) that need to be “saved” by s. 15(2) – is this right?
 Section 15(2) does not serve as an exception to Section 15(1) but clarifies that certain
measures that differentiate treatment based on a protected characteristic are allowed if they
aim to ameliorate conditions of disadvantage.
 The problem with this analysis of s. 15(2) as an exception to s. 15(1) is that s. 15(1)
guarantees substantive equality, which means that differential treatment in the service of
equality for disadvantaged groups is an expression of equality and not an exception to it
(which means that s. 15(2) should not be necessary to “save” programs designed to
ameliorate disadvantage) – Discussed by the SCC in Kapp….

R. v. Kapp (2008) – Mclachlin C.J. and Abella J. for the majority rejected the idea that s. 15(2)
was an exception to s. 15(1); rather, the two sections are “confirmatory” of each other
 The focus of s. 15(1) = preventing governments from discrimination
 The focus of s. 15(2) = enabling governments to proactively combat discrimination
 SCC found that s. 15(2) is not merely a clarification or an aid in interpretation to s. 15(1);
rather, it has an independent role to play.
 In this case, Section 15(2) allowed for this differentiation between Indigenous and non-
Indigenous people as it was meant to ameliorate disadvantage, aligning with the goals of
Section 15(1). Positive Discrimination: Section 15(2) is often applied to affirmative action
policies that aim to remedy disadvantage or equality gaps (e.g., employment or educational
opportunities for historically marginalized groups like women, racial minorities, or disabled
people).
 Issue: special “communal” commercial fishing licence which was authorized by the federal
 Fisheries Act, and available only to Indian bands
 Non-indigenous fishers argued that the privileged access granted by the communal licence
only to Indigenous fishers constituted discrimination on the grounds of race
 Held: Communal license was constitutional based on s. 15(2)

Section 15(2) Violation Test (at para. 41):

A program does not violate s.15(1) equality guarantee if gov’t shows:
o The program has an ameliorative or remedial purpose; and
o The program targets a disadvantaged group identified by the enumerated or
analogous grounds (i.e., group is vulnerable, subject to prejudice or negative social
characterization)
How the analysis proceeds:
o Once a s.15 claimant has shown a distinction based on an enumerated or analogous
ground, government may show that the law or program is ameliorative, and thus
constitutional under ss. 15(2) (at para. 40)
o If government fails to show that the law/program falls under ss.15(2), then the focus
reverts to a full ss.15(1) analysis to determine whether the distinction is
discriminatory

Violation of Equality Rights - Section 15(1)

Court in Alliance Set up the Test – Gets used in Frasher – Go to Sharma (in order to
prove the first step of the alliance, discriminatory impact you need evidence, expert
evidence.
You Need a Government actor:
1. Establish/Identify the characteristic?
2. What the difference in treatment there is?
3. Is it justified? Is there some other reason? Or because of that characteristic they are being
treated different? If that characteristics is inalienable

Fundamental Justice
Section 7 of the Charter
 Sections 7 – 14 of the Charter are called “Legal Rights” (which does not have a specific
meaning)
 Section 7 of the Charter:
o Everyone has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental
justice.

Benefit of Section 7
 Section 7 applies to “everyone”
o Does this include a corporation? NO
o What about immigrants to Canada? YES
o A foetus? NO

Life, Liberty and Security of the Person

What is “life”?
 Seems obvious, but the state does not actually threaten life directly very often (i.e. death
penalty)
 Can have a wider definition i.e. excessive wait times for treatment in the public health
care system; the prohibition on physician-assisted suicide (because some persons took
their own lives prematurely)
o Chaoaulli v Que [2005]- The SCC held- that excessive waiting times for
treatment in the public health care system of Quebec increased the risk of
death, and were in violation of the right to life (as well as security of the
person)
 One Right vs. Two Right Interpretation - Hogg argues that the best view of Section 7 is
not it confers the two rights interpretation because it gives s7 an extraordinarily broad
sweep. A better view is that s7 only confers one right. The right not to be deprived of life,
liberty or security of the person except in accordance with the principles of justice. Peter
Hogg favored the “One Right” interpretation. Why? It provides a clearer, more limited
framework. It prevents the courts from engaging in abstract or vague reasoning about harm
unless there's also a violation of fundamental justice.

What is “liberty”?
 Physical liberty i.e. Freedom from Physical Restraint
o Obviously includes imprisonment, as well as any law that imposes the penalty
of imprisonment (even if the sentence is discretionary)
o Also includes statutory duties to submit to fingerprinting, to produce
documents, to give oral testimony and not loiter in or near school grounds, a
change in terms of a prison sentence and the transfer from minimum security to
medium security prison - these also qualify as deprivations of liberty attracting
fundamental justice (i.e. these laws must conform to the principles of
fundamental justice)
o Does not include a law that imposes only a fine, or suspension of a driver’s
licence
o Does not include deportation of a non-citizen
 The SCC has extended the right to “liberty”beyond just physical restraint
o It applies whenever the law prevents a person from making “fundamental
personal choices”

Carter v. Canada (2015) - Physician-Assisted Suicide

1. Violation of Section 7: The ban on assisted dying was found to be:
a. Overbroad: It applied even to competent, consenting adults who were
suffering grievously and irremediably. Grossly disproportionate: It caused
people to endure suffering or take their lives prematurely. The Court said this
violated the right to liberty and security of the person, and was not in
accordance with principles of fundamental justice.
2. Section 15 (Equality): The Court didn’t decide the case based on equality rights, since
it was already resolved under s. 7 — but noted that disabled people were
disproportionately affected by the law.

Impact / Significance: Overruled Rodriguez v. British Columbia (1993): a prior

case that had upheld the ban. Changed Canadian law: Parliament was given 12 months
 (later extended to 16) to pass new legislation. Led to the creation of Bill C-14 in 2016
— legalizing MAiD in Canada under strict conditions. A landmark example of
substantive section 7 analysis: not just about procedures, but about the fairness and
impact of the law itself.

Examples that are NOT a deprivation of liberty:

 Re BC Motor Vehicle Act [1985] –a law that imposes only a penalty of a fine is not a
deprivation of liberty. (Larmer left open “imprisonment as an alternative to non-payment
could be)
 Buhlers v BC (1999)-the suspension of a driver’s license is not a deprivation of liberty.
 Medovarski v Canada [2005]-the deportation of a non-citizen is not a deprivation of
liberty, attracting the rules of fundamental justice because a non-citizen has no right to
enter or remain in Canada.

Examples that ARE deprivations of liberty:

 R v Beare [1988]- statutory duty to submit to finger printing and imprisonment are
deprivations of liberty.
 Thompson Newspapers v Can [1990] – to produce documents is a deprivation of liberty
 Stelco v Can [1990]- to give oral testimony a deprivation of liberty
 R v Heywood [1994]-to not loiter in or near school grounds, playgrounds, public parks and
bathing areas is a deprivation of liberty.
 Cunningham v Canada (1993)-The amended Parole Act cancelled the conditional release
and required the continued detention of the prisoner for the rest of the prisoner’s sentence.
The SCC held that- although the amendment of the Parole Board had not had the affect of
lengthen the defendants 12 year sentence it had altered the manner in which the sentences
was to be served. Serving time on mandatory supervision was a lesser deprivation of
liberty that serving time in prison. This change in the law should be treated as the
deprivation of liberty interest making s7 applicable. However, the court went on to hold
that it was not a breach of the principles of the fundamental of justice. The defendant
remained in prison.
 May v Ferndale Institution (2005)- the court reviewed a decision by the correctional
service to transfer a prisoner to a min. security prison to a medium security prison. Court
followed Cunningham and held the decision to transfer the prisoner was a deprivation of
his “residual liberty” so s7 applied. The court held the failure of the Correctional Service
to fulfill a statutory obligation to provide information as to the reasons of the transfer was
not important. (Stinchcome rules of disclosure did not apply outside criminal proceedings
where the innocence of the accused was at stake.) It did make it unlawful so the prisoner
was sent back to min security.
 Blencoe v BC (2000)- Bastarache J- “asserted that liberty in s 7 is no longer restricted to
mere freedom from physical restraint”; it applies whenever a law prevents a person
from making “fundamental personal choices.”
o Mr Blencoe’s liberty had been impaired because of the unreasonable delay he
waited for the BC Human rights Commission took in disposing sexual harassment
charges against him. Court held:”in these circumstances, the state has not
prevented [Mr Blencoe] from making any fundamental personal choices.”

Economic Liberty
 “Liberty” does not include Economic liberty or Political liberty
  The framers of Canada’s Charter of Rights had deliberately omitted any reference to
property in s7 and they also omitted any guarantee of the obligation of contracts. The
replacement of “due process” with “fundamental justice” was intended to banish Lochner
from Canada.
 Re ss 193 and 195.1 CC - s7 –liberty must not be interpreted to include property, not
including freedom of contract and not including economic liberty.
 Gosslin v Que per Larmer J- “ the restrictions on liberty and security of the person that
s7 is concerned with are those that occur as a result of an individual’s interaction with the
justice system and administration.
 Because s7 leads of a group of rights s7-14 which deals with the criminal justice system-
search, seizure, detention arrest trial, testimony, and imprisonment it seems that Larmer J’s
line of reasoning excludes economic liberty.
 “Liberty” does not include:
o R v Edwards Books and Art [1986]-liberty does not include the right to do
business, by selling goods on Sunday.
o Re ss 193 and 195.1- right to work? the regulation of trades and professionals
should be regarded as restrictions on economic liberty that are outside the scope of
s7.

Political liberty
 Liberty does not include freedom of conscience of religion, freedom of expression,
freedom of assembly, freedom of association, the right to vote and be a candidate for
election or the right to travel. These rights are all guaranteed elsewhere in the Charter of
Rights and should be excluded by s7.

 What is included in “security of the person”?

o Spanking children adversely affects children’s security of the person
(Canadian Foundation for Children, Youth and the Law v. Canada (2004)
– note that the Criminal Code provision infringed s. 7 but the SCC found no
breach of the principles of fundamental justice so the provision was upheld)
 This exposed children to what amounted to assault. Court held: had no
difficulty in finding that the provision adversely affected the security of
person of the children to who it applied (The court upheld the provision
on the ground that there was no breach of the principles of fundamental
justice.
o Restricting access to abortion (R. v. Mortgentaler (No. 2) (1988))
o Wait times for surgery etc. in the public health care system in Quebec
(Chaoulli v. Quebec (2005))
o Making certain prostitution-related activities a criminal offence (Canada v.
Bedford (2013))
 It is clear that “security of the person” encompasses protecting physical integrity
 What about psychological integrity?
o New Brunswick v. G.(J.) (1999) – removing children from parents and
placing them with the state affects the security of the person of the parent
because the government action would constitute a “serious interference with
the psychological integrity of the parent”
o Blencoe v. British Columbia (2000) – unreasonable delay by the BC Human
Rights Commission in dealing with complaints of sexual harassment against
 the accused did not quality because not a severe enough impact (but could
trigger s. 7 in another case if a person is distressed enough)
o Gosselin v. Quebec (2002) – failure to extend the same welfare benefits to
those under age 30 did not trigger s. 7 because s. 7 has not been extended to
protect economic rights and because s. 7 prohibits state deprivations of security
of the person and does not impose a positive obligation on the state to ensure
that each person enjoys life, liberty and security of the person

Does security go beyond health and safety? Yes.

 R v Morgentaler (no.2)-3 out of 5 judges were willing to find deprivation of security of
the person, not only a risk to the woman’s health created by the law related delays, but
also in the loss of her control over the termination of the pregnancy. This means that
security of person would include some requirement of personal autonomy at least with
respect to medical treatment.
 Rodriguez v BC (1993)- a person who was terminally ill challenged the constitutionality
of the CC offence of assisting a person to commit suicide. It was argued that that the law
deprived a disabled person of the ability to commit suicide which was not an offence. 8 of
9 judges of the SCC held that it was a deprivation of security of the person under s7.
However the plaintiff was not successful because 5 of 9 judges held the law did not
offend the principles of justice.
 New Brunswick v G.(J) (1999)- the SCC held an application by the state to remove
children from a parent and place them under the wardship of the state affected the security
of the person of the parent. Security of the person was affected because the government
action would constitute “a serious interference with the psychological integrity of the
parent.” s7 was applied and the removal proceedings had to be conducted in accordance
with the principles of fundamental justice.
 Winnipeg Child and Family Services v KLW (2000)- the SCC held that a warrantless
apprehension of a child deemed to be “in need of protection” was a breach of the
parents security of the person, although a majority of the Court held the principles of
fundamental justice had not been breached. A post apprehension hearing satisfied the
principle of fundamental justice.
 Blencoe v BC (2000) – SCC held- that state induced psychological stress would be a
breach of security of the person, but decided that the Commission’s delays did not have
a sufficiently severe impact on the applicant psychological state to qualify the breach.
Bastarache Jsaid the decision should not be construed as a ruling that delays in Human
rights proceedings can never trigger an individual’s s7 rights.
 Gosselin v Quebec (2002)- it was argued that s7 imposed on government a positive
obligation to provide adequate welfare benefits to those who were without other sources of
income. Her challenge was on age discrimination s 15 and on s7 and she failed on both
grounds. Court held s.7 has not been extended to economic rights nor has it been
interpreted as imposing positive obligations on the state to ensure that each person,
enjoyed life, liberty or security of the person.

Property Rights
Section 7 does not include property (this was a deliberate exclusion)
 The omission of property rights from s7 greatly reduces its scope. It means that s7 affords
no guarantee of compensation or even of a fair procedure for the taking of property by
 government.
 It means that s7 affords no guarantee of fair treatment by courts, tribunals or officials with
power over purely economic interests of individuals or corporations.

Who can Benefit of Section 7:

a) Corporations
o s7 is applicable to “everyone” a word that is normally apt to include a
corporation as well as an individual.
o Irwin Toy v Que [1989] - SCC held that the context of s7 “everyone” does not
include a corporation because an artificial person (a corporation) is incapable of
possessing “life, liberty or security of person” because these are attributes of a
natural person.
b) Immigrants
o Singh v Minster of Employment and Immigration (1995) “everyone”
includes immigrants to Canada. Wilson J said that s7 right could be asserted by
“every human being who is physically present in Canada and by virtue of such
presence amenable to Canadian law.
o This means that immigrant who claimed refugee status was entitled to a hearing
before an official or tribunal to determine their case. Arguing that this would be
too expensive or a strain on the system was rejected by the court.
c) Foetus
o R v Morgentaler (No 2) “everyone” in s7 does not include a foetus and so a
foetus is not entitled to a right to life. The SCC had in fact
o used s7 to strike down restrictions on abortion because it infringed the security
of the person of the mother.

Burden of Section 7
 Section 7 like other Charter provisions applies only to “governmental action” as
defined in s32 Charter.

Fundamental Justice
 Section 7 of the Charter provides that a deprivation of life, liberty or security of the
person is only a breach of s. 7 if the deprivation is not in accordance with “the
principles of fundamental justice”
 What does this mean?
o Just protection for procedural rights i.e. right to a hearing, to unbiased
adjudication and a fair procedure (so-called, “natural justice”)?
o Or do the principles of fundamental justice include something more
substantive?
Procedural Justice: Fair Process, was the person given a fair hearing, was there
notice, impartially right to respond, is the legal process fiar even if the law itself is
harsh?
o For example, someone shouldn’t be imprisoned without a trial — that’s a
violation of procedural justice.

Substantive Justice: Fairness of Law Itself

 o Does the law itself violate fundamental values? Is it arbitrary, grossly
disproportionate, or overbroad? Is it inherently unjust, even if applied fairly?
o For example, a law that imprisons homeless people simply for being on the
street could be procedurally fair (applied through trial), but substantively
unjust — violating s. 7.

It means Section 7 protects people from:

1. Unfair processes (e.g., trials without lawyers), and
2. Unjust laws themselves (e.g., laws that are excessively harsh, arbitrary, or
violate dignity or personal autonomy).

 B.C. Motor Vehicle Reference (1985) – a reference by the government of B.C. to

determine the validity of a provision in the Motor Vehicle Act which made it an
offence to drive a car while prohibited from driving or driving with a suspended
licence – it was an “absolute liability” offence, meaning guilt is established just by
driving, whether you knew about the licence suspension or not and the mandatory
penalty was imprisonment
 SCC held it was a breach of fundamental justice to impose a term of imprisonment for
an offence that lacked mens rea (a guilty mind) – this was a substantive injustice
 Accordingly, s. 7 prohibits substantive as well as procedural injustice
 B.C. Motor Vehicle Reference (1985) – Three reasons for extending fundamental
justice beyond procedure (as it appears that the framers of the Constitution thought it
just meant natural justice / issues of procedure) – per Lamer J.
1. The words “Fundamental Justice” are broader in scope than “natural justice”
and the framers could have used either phrase (Fair Process and Fair Laws -
Procedural and Substantive) Fundamental justice, as used in Section 7, goes
beyond procedure — it includes substantive fairness: The content of the law
itself must be fair. Laws can’t be arbitrary, overbroad, or grossly
disproportionate.
2. The broader interpretation expands the protection of life, liberty and security
of the person.
 Courts can strike down laws that unfairly target people. Review laws
that cause harm, detention, or deprivation — even if applied through a
fair process. Example: A law that automatically imprisons someone for
an innocent mistake (like in B.C. Motor Vehicle Reference) is
procedurally fair but substantively unjust — and now open to
Charter challenge under s. 7.
3. Section 7 is a General Residuary Clause for all legal rights of the Charter in
ss. 7 – 14 (but this was a contentious reason)
 the effect of the residuary theory is that the precise language of s8 to 14
becomes relatively unimportant.
 Thomson Newspapers v Canada (1990)-SCC held that-“the principles
of fundamental justice in s7 could still contain some “residual” elements
of the right against self-incrimination. The scope of the right was not
taken from the precise language of s11 and 13 but from the vague
language of s7 which refers to the principles of fundamental justice.
Five different theories as to what additional contents s7 added to s11(c)
and 13
 I. a right to remain silent
II. a right not to give an incriminating answer
III. a right to have all evidence derived from the compelled
testimony excluded from the subsequent proceedings
IV. a right to have only that derivative evidence that could
not have been discovered apart from the compelled
testimony excluded from subsequent proceedings
V. no right additional to s11(c) and 13.
 all judges s/he were articulating a principle or tenant of the justice
system .
 Canada’s Supreme Court made clear that bad laws — not just bad trials
— can violate the Charter.

Fundamental Justice, Defined

Key Principles of Fundamental Justice/ Examples of these “basic tenets” include:
1. Arbitrariness (A law cannot be arbitrary — it must relate rationally to its
objective.)
2. Overbreadth (law is overbroad if it goes too far and has conduct that has nothing
to do with its purpose.
3. Gross disproportionality (The effects of the law on a person’s life, liberty, or
security must not be grossly disproportionate to its purpose.)
4. Vagueness (A law must be clear enough for people to understand what is legal and
what is not. Vague laws are not fair.)
5. Right to be Heard (Fair Hearing) (Everyone has a right to a fair process, including
being heard before losing rights.)
6. Moral Innocence/Fault Requirement: (Serious criminal punishment requires
some form of fault, like intention or recklessness.
7. Mens Rea Requirement (in Criminal Law) People should not be punished without
proof of criminal intent or negligence, especially for serious offences.
8. Right to Silence/No Self-Incrimination (People have a right not to incriminate
themselves or be compelled to speak to police.)
9. Access to Counsel: (A person must be informed of and allowed to contact a lawyer
when detained.)

 The SCC definition of fundamental justice in B.C. Motor Vehicle Reference: “the
principles of fundamental justice are to be found in the basic tenets of the legal
system” (???)
 Larmer J- “those words (fundamental justice) cannot be given any exhaustive content
or simple enumerative definition but will take on concrete meaning as the courts
address allege violations of s7”
 there is very little agreement on what the “basic tenants of the legal system” example-
Thompson Newspapers v Canada (1990) –five judges gave five different opinions as
to the applicable basic tenets of the legal system.
 Cunningham v Canada (1993)- SCC had to decide whether it was breach of the
principles of justice occurred. McLachin J made no reference to the basic tenets of the
legal system. “The question is whether, from a substantive point of view, the
change in the law strikes the right balance between the accused interests and the
interests in society”
  In other words, when a law deprives an individual of life, liberty or security of the
person, the courts must determine whether Parliament or Legislature struck “the
right balance” between the competing values that the legislators had sought to
reconcile.
 Rodriquez v BC (1993)- Sponkia J asserted that the principles of fundamental justice
must be “fundamental” in the sense that they would have general acceptance among
reasonable people. McLachlin J, L’Heureux –Dube J
 R. v. Malmo-Levine (2003) – challenge to the criminalization of possession of
marijuana, which included the penalty of imprisonment – was the “harm principle”
(i.e. don’t criminalize conduct that does not cause harm to others) a principle of
fundamental justice?
 The SCC held that there are 3 requirements for a rule to qualify as a basic tenet of
the legal system and therefore as a principle of fundamental justice:
o The rule must be a “legal principle”;
o There must be a “significant societal consensus that it is fundamental to the
way in which the legal system ought fairly to operate”;
o The rule must be capable of being “identified with sufficient precision to
yield a manageable standard”.
 The “harm principle” did not meet any of the three requirements so the
criminalization of possession of recreational marijuana was upheld.
 R v Parker (2000)- Marijuana for medical use Could possession be prohibited for
those who had medical use for the drug? –Ontario Court of Appeal answered no. The
possession of marijuana could not be prohibited (with imprisonment as a possible
penalty) if the prohibition did not include an exception for those with medical needs.
Court suspended for a year and the federal government responded with Marijuana
Medical Access Regulations.
 Hitzig v Canada(2003)- Challenge on medical marihuana regulations- Ontario Court
of Appeal held they were unconstitutional because it did not provide a legal source.
“To require those persons to purchase the drug from criminals was “inconsistent with
the fundamental principle that the state must obey and promote compliance with the
law” The court struck down these new regulations.
 Canadian Foundation for Children, Youth and the Law v Canada (2004)-
Challenge on a defense for an assault charge for teachers and parents. It was argued
that the best interests of the child was a principle of fundamental justice and that the
exposure of children to corrective force was not in their best interests. The SCC had
accepted the 3 requirements of fundamental justice that was stipulated in Malmo-
Levine.

Criteria (from cases like Malmo-Levine and Rodriguez): To qualify as a principle of

fundamental justice:
1. It must be a legal principle.
2. There must be consensus that it is fundamental to the fair operation of justice.
o The principle must be something deeply rooted in the
legal tradition and widely accepted as essential for a fair
legal system.
3. It must be precisely defined enough to guide courts in evaluating laws.
Absolute and Strict Liability
 Absolute liability + risk of jail = unconstitutional under s. 7
 Strict liability can be valid if due diligence is available, because it gives people a
chance to show they acted responsibly.

Absolute Liability
o The offence consists of simply doing the act itself; where no requirement of
fault (mens rea or negligence)
o Recall B.C. Motor Vehicle Reference (1985) –absolute liability where the
offence carries the penalty of imprisonment is a denial of the principles of
fundamental justice
o However, in subsequence cases, an offence is not always struck down as a
violation of S. 7, where the court can exercise some remedial options such as
interpreting the offence as one of strict liability instead of absolute liability (i.e.
allow a defence of due diligence) or where the court can read in a mens rea
element into the offence (see for example)
o R v Hess(1990)-another absolute liability case which challenged the statutory
rape provision in the CC. It made it an offence for a male person to have
intercourse with a female person under the age of 14 “whether or not he
believes that she is 14 years of age or more” This offence was absolute liability
since it was no defence for the accused to show that he reasonably believed his
act to be innocent. The offence carried a penalty of imprisonment. SCC held-
that the penalty of imprisonment was a breach of fundamental justice in
violation of s7. the result was not to strike down the offence entirely.
o R v Pontes (1995)- the SCC had to classify an amended version of the offence
in the BC Motor Vehicles Act of driving while prohibited fro driving. The CC
stated- “automatically without notice” prohibited from driving for 12 months.
Cory J- held that the quoted phrase meant that a duly diligent driver could be
unaware of the prohibition and could innocently commit the offence of driving
while prohibited. However, the amended act stated “no person is liable to
imprisonment for an absolute liability offence” Therefore no penalty of
imprisonment for the offence of driving with prohibited-therefore no breach of
liberty under s7.
o Pontes- makes clear that s7 has no application to large fines because liberty is
not affected. As long as imprisonment is not a penalty Parliamentcan still make
offences of absolute liability.
o For regulatory offences that are punishable by fine it is an issue of statutory
interpretation not constitutional law as to whether the offences of absolute
liability or of strict liability. However because of the injustice of punishing a
person who has acted without fault and has taken reasonable precautions to
comply with the law the presumption is of strict liability.
o Levis v Tetreault –if the offence is a regulatory one, strict liability complies
with s7 of the Charter. Another option is to use the power of severance ( or
reading in) to convert the offence into one of mens rea. What saved the offence
is R v Hess is the power to use severance to eliminate the penalty of
imprisonment.
 Strict Liability
o The offence consists of simply doing the prohibited act (like absolute liability),
but there is a defence of due diligence, which actually means that there is a
fault requirement of negligence (this is known as a “reverse onus”)
o R. v. Wholesale Travel Group (1991) – corporation charged with misleading
advertising under a strict liability offence – the accused corporation argued that
it is a violation of fundamental justice to place an individual in jeopardy of
imprisonment for any lesser fault than mens rea
o Not so fast! The SCC held that the offence was not really a “true crime” but
was really a “regulatory offence” or a “public welfare offence”, so
fundamental justice does not require that mens rea be an element of the offence
(even though the accused could go to prison) – later cases may be abandoning
this reasoning (see Hogg pp. 47-30 to 47-39)
o Fundamental Justice is satisfied if there is a defense of reasonable care
( due diligence) and the burden of proving reasonable care ( to the civil
standard) may be cast on the defendant.
o R V Hundel (1993)- the accused had driven his truck through a red light and
collided with another car killing the other driver. He argued that he did not have
time to safely stop through the amber light so he felt it was the right course of
action. Court sited – Wholesale Travel and stated that “in appropriate context,
negligence can be an acceptable basis of liability which meets the fault
requirement of s7 of the Charter. All that the crown needed to establish was an
objective departure by the accused from the appropriate standard of care. The
fact that the accused believed that he was driving safely was irrelevant.
o R v Nova Scotia Pharmaceutical Society (1992)- the SCC rejected a
challenge to the Competition Act offence of conspiring to lessen competition
unduly. The Act expressly eliminated the element of mens rea by providing that
it was not necessary for the prosecution to prove that the accused intended that
his actions would have the effect of lessening completion unduly. This did not
violate s7. “Ought to have know” was enough to satisfy the minimum
requirement for s7.
o R v Finlay (1993)- the SCC reviewed the CC offence of storing a firearm “in a
careless manner”. The max penalty was 2 years. Was negligence a sufficient
fault requirement for the CC. Larmer CJ repeated the dictum in Hundal that- “
in the appropriate context negligence can be an acceptable basis of liability
which meets the fault requirement of s7.

Murder
 Issue: an old Criminal Code definition of murder that included the so-called felony-
murder Rule: if an accused caused a death in the course of committing certain serious
offences, including robbery, while armed with a weapon, then the accused was guilty
of murder. All that was needed as proof was the felony, the use or carrying of the
weapon and the causing death
 R. v. Vaillancourt (1987) – accused charged with murder as the result of a poolroom
robbery in which the accused’s accomplice shot and killed a customer of the poolroom
 where the accused knew his accomplice was carrying a gun and he was part of the
robbery
 SCC held that the felony-murder rule was a violation of fundamental justice under s. 7
of the Charter because before an accused can be found guilty of murder, he must have
mens rea (a guilty mind) with respect to the death (did not say if subjective or objective
mens rea – SCC later clarified that subjective mens rea is required for murder)
 Big reason behind this was the stigma attached to being a murderer
 R v Martineau (1990)- the SCC held that a high level of mens rea (subjective
forseeability) that was required by s7
 This was ruling brought challenge to s21(2) CC which defines a “party to offence”
which uses the phrase “knew or ought to have known”
 R v Logan (1990)- two accused robed a store with a gun in which a third person shot
and injured the clerk. The two were convicted as parties under s21(2) to the crime of
attempted murder. SCC held- since the attempted murder was one of those few
offences for which s7 stipulated a requirement of subjective mens rea and because the
“social stigma associated with the conviction”
Offences for which subjective Mens Rea is constitutionally required:
1. Murder(Martineau)
2. Attempted Murder (Logan)
3. War Crimes and Crimes against humanity committed outside Canada( R v Finta
[1994])

Unforeseen Consequences
 Some Criminal Code offences set out a different penalty depending only on the
consequences of the act, as opposed to the mental state of the accused
 Example: dangerous driving vs. dangerous driving causing bodily harm vs. dangerous
driving causing death
 Issue: is it a breach of fundamental justice to make an unintended and unforeseen
consequence the basis of a more serious charge and stricter punishment? No (see R. v.
DeSousa (1992) Hogg p. 47-44).
 Murder vs. attempted murder are different because both carry stigma (so both
require fault based on a subjective standard)
 R v De Sousa(1992)- the accused through a bottle in a fight and injured an innocent
bystander. The accused neither intended nor foresaw the injury. What was the mental
element for causing bodily harm? Sopinka J- held that there was “no constitutional
requirement that intention, either on an objective or subjective basis extended to
the consequences of unlawful acts in general”
 “it is acceptable to distinguish between criminal responsibility for equally
reprehensible acts on the basis of the harm that is actually caused.”
 R v Creighton (1993)- SCC had to determine what was the mental element of the
offence of manslaughter by unlawful act. The court upheld the constitutionality of the
Criminal Code requirement of objective foresight of bodily harm as the mental element
of unlawful act manslaughter. Foresight 52 53 of the death was not required, despite
the fact that the maximum penalty for manslaughter was imprisonment for life.

Involuntary Acts
 Automatism, duress, intoxication
 In principle, a person should not be convicted of a criminal offence for an act that is
 not voluntary.
 R. v. Parks (1992) – sleepwalking killer was acquitted
 R. v. Ruzic (2001) – woman acquitted after being forced to carry drugs through the
airport by criminals who threatened harm to her mother in Belgrade
 R. v. Daviault (1994) – extreme intoxication was a successful defence to a charge of
sexual assault; Parliament amended the Criminal Code after a public outcry making
extreme self-induced intoxication the fault required for the conviction of offences of
violence; Ontario court in August 2018 ruled this law unconstitutional (R. v. McCaw
(2018))
 R. v. Robinson (1996) – murder while intoxicated; if drunkenness raises a reasonable
doubt as to whether the accused possessed the specific intent to murder, the accused
was entitled to be acquitted
Automatism
 A tenant of the legal system should not be convicted of a criminal offence of an act that
is not voluntary. The courts have become persuaded that a person can engage in very
complex behaviour while in a state of “automatism” and that automatic behaviour
cannot be an offence because it is involuntary.
 R v Parks (1992)- accused drove 23 km and killed his mother in-law and injured his
father in law.. He was charged with murder and attempted murder. His defence of sleep
walking which was supported by 5 psychiatric exports. The also stated that he was not
of a disease of the mind.
 R v Stone (1999)- accused after taunting by his wife, stabbed her to death. he argued
he was provoke which suffered a “psychological blow” causing him to commit the act.
He was found guilty of manslaughter instead of murder. He appealed that he should
have been acquitted. SCC
held- this defence was not available because a “normal” person would not have shift
into a state of automatism as the result of the wife’s taunts.
Duress
 The Criminal Code by s17 makes duress an excuse for the commission of an offence:
an offence committed “under compulsions” is excused from criminal liability.
However, s17 stipulates that the compulsion must take the form of “threats of
immediate death or bodily harm from a person who is present when the offence is
committed .
 R v Ruzic (2001)- accused arrived at airport with heroin strapped to body. She was
charge with false passport and drugs. She pleaded guilty to both crimes but claimed
that she was forced to commit the offences because her mother was going to be harmed
by a man in Belgrade. This was believed by the jury who acquitted her. The Crown
appealed on the ground of limiting conditions of s17 were not satisfied. Corwn argued
thatsince the offences occurred in Toronto the threats were no “immediate” and he was
not “present when the offences were committed” The SCC affirmed the acquittal of the
accused s7 of the Charter was applicable because the offences carried the penalty of
imprisonment Lebel J- held it would be a breach of the principles of fundamental of
justice to convict a person of a crime when that person had not acted voluntarily.
Intoxication
 R v Daviault (1994)- the SCC held that s7 requires that extreme intoxication be a
defence to a criminal charge. If it requires specific intent extreme intoxication may
negative the additional intent and lead to the acquittal of the accused but the accused
would normally escape criminal responsibility because the accused could still be
 convicted of a lesser offence (simple assault).
 SCC held- that s7 and 11(d)- of the Charter were offended by the rule that self induced
intoxication was no defence to a criminal charge. Cory J- held that under s7 the
requirement of mens rea for a crime of general intent could only be the intention to
commit the prohibited act. The accused must establish the defence of extreme
intoxication on the balance of probabilities. By reversing the usual onus of proof in a
criminal case, Cory J created a new rule
 R v MacAskill (1931)- that the defence of intoxication required evidence that the
accused was so intoxicated that he was incapable of forming the required specific
intent.
 R v Robinson (1996)- the SCC turned its attention to offences of specific intent. This
was a murder case which required specific intent. The
 accused had been drinking and he hit the head of the victim with a stone. SCC Held- If
a drunkenness raised a reasonable doubt as to whether
 the accused in fact possessed the requisite specific intent,

Fundamental Justice, Applied to Laws

 Laws that impinge on life, liberty or security of the person must not be:
o Overbroad
o Grossly disproportionate
o Arbitrary
o Vague
o Wrong

Overbroad Laws
 A law that is broader than necessary to accomplish its purpose is an Overbroad
Law.
 Overbreadth is a breach of the principles of fundamental justice
 R. v. Heywood (1994) – involved a Criminal Code provision that made it an offence
for a person who had previously convicted of sexual assault to be found loitering in or
near a school ground, playground etc.; the SCC found the law was overbroad and so it
offended the principles of fundamental justice. In this case the law was overboard
because: 1. its geographic scope was too wide, because parks and bathing areas include
places where children were not likely to be found 2. its duration was too long because
it applied for life without any possibility for review and 3. the class of persons to
whom it applied would not be continuing danger to children.
 The doctrine requires the law to be no broader than necessary to accomplish the
purpose of the law (but note that the purpose of the law is found by the Court, which
gives the judges a lot of discretion!)
 Hogg notes the problematic use by the Court of hypothetical cases
 See also R. v. Bedford (2013) (prostitution laws) and Carter v. Canada (2015)
(assisted suicide)
 Overbreadth is NOT the same as vagueness.
 Overbreadth Law- can be perfectly clear and still use means that went further than
necessary to accomplish the law’s purpose.
 Overbreadth and Vagueness have this in Common: Either deficiency results in the
invalidity of the entire law, including the part that is consistent with the purpose of the
law and clear in its application.
  A law which restricts freedom for no reason offends the principles of fundamental
justice. Overbreadth-raises serious practical and theoretical difficulties and confers
exceedingly discretionary power of review on the court.
 Ontario v Canadian Pacific (1995)- offence under EPA for discharging smoke into
the air. Lamrer CJ solved the problem by invoking the presumption of constitutionality
and adopting an artificial narrow interpretation of the Act –exempting the wild
 R v Clay (2003) possession of marijuana- law criminalizing marihuana which includes
the penalty of imprisonment and therefore impaired liberty under s7) offended the
principles of fundamental justice because it was overbroad. The SCC did not agree. It
was obvious that the law caught people who were in possession of marijuana in the
privacy of a home who were not about to drive a car or operate machinery.
 R v Demers- a committee was designed for people who were found to be unfit for
trial. This committee would review their case annually. People unfit were getting
trapped in the system because there was not power by the courts to order a discharge
even if the person was not a public threat. Since the law made no provision for an
absolute discharge for the permanently unfit accused. It was overbroad.

Disproportionate Laws
 A law that has a connection to its objective, but the s. 7 deprivation is so severe as to
be out of all proportion to the objective, then the s. 7 deprivation is classified as
“grossly disproportionate”
 R. v. Malmo-Levine (2003) – (marijuana possession); the SCC held that the doctrine
of disproportionality requires the court to determine:
1. Whether a law pursues a legitimate state interest (yes, for possession
of marijuana) and, if yes;
2. Whether the law is grossly disproportionate to the state interest
(no, according to the SCC).
 See also Canada v. PHS Community Services Society (Insite) (2011) (safe injection
site) and Canada v. Bedford (2013) (prostitution)

Arbitrary Laws
 If a law has no connection to its objective, then the s. 7 deprivation will be arbitrary.
Chaoulli v. Quebec (2005) – constitutional challenge to Quebec’s prohibition on the
purchase of private health insurance; the purpose and effect of the prohibition was to
make the universal health care plan exclusive (even though there were delays in getting
timely treatment in the public health care system, a breach of the s. 7 right to life and
security of the person)
 SCC split evenly: 3 judges held that a law is arbitrary if it “lacks a real connection on
the facts to the purpose the law is said to serve”; there was evidence that in other
jurisdictions parallel access to private care did not injure the public health care system
so the law was indeed arbitrary
 3 other judges relied on expert evidence to find that the development of a private
system would divert resources away from the public system, so the law was not
arbitrary

Vague Laws
 A Vague Law violates the principles of fundamental justice because it offends two
principles that are fundamental to the legal system:
 4. A Vague Law does not provide fair notice to persons of what is prohibited,
which makes it difficult for them to comply with the law
5. A Vague Law does not provide clear standards for those entrusted with
enforcement, which may lead to arbitrary enforcement
 What constitutional standard of precision is required?
 Note: the doctrine of vagueness is not confined to s. 7
 Prostitution Reference (1990)- SCC acknowledged that the prohibition was “broad
and far reaching, denied that it was so vague that a court could not give “sensible
meaning to its terms.
 United Nurses of Alberta v Alberta (1992)- The SCC held that it was not a
requirement of fundamental justice that a criminal offence be codified in stator form.
Although the elements of the common law offence were not as clear as could be
achieved in a statutory definition, the offence was neither vague nor arbitrary”’
 R v Nova Scotia Pharmaceutical Society (1992)- the word “unduly” was attacked
under s7 on the ground that the word was unconstitutionally vague. This argument
was rejected by the SCC.
 Ontario v Canadian Pacific (1995)- EPA and the use of the words “contaminant”,
into the “natural environment” and “for any use that can be made of it” were so vague
that the offence was void for vagueness under s7.

Standard of Precision
 what is the constitutional standard of precision that a law must meet in order to avoid
the vice of vagueness?
 R v Nova Scotia Pharmaceutical Society (1992)- The law should be “intelligible”
and should sufficiently delineate “an area of risk” and whether the law provides “an
adequate basis for legal debate” (Hogg sees this last one least useful.) However the
SCC has employed in subsequent cases. Gontheir J- there is no requirement that the
law be “absolute certain” because no law can meet that standard.
 Canadian Foundation for Children Youth and Law v Canada- “reasonable force”
by way of correction in s43 of the CC. It appeared vague and many lower courts that
found that s43 did not provide meaningful standards. The SCC ignored this body of
law and instead relied on expert evidence. “on the basis of expert evidence”- so
interpreted she held that s43 “sets real boundaries and delineates a risk zone for
criminal sanction” that is sufficiently clear standard to avoid the charge of
unconstitutional vagueness.

Application to other Charter rights

 R v Morales(1992) the SCC held that the doctrine of vagueness also applies to s 11(e)
of the Charter. Larmer CJ for the majority of the court said there cannot be just cause
for denial of bail within the meaning of s11(e) if the statutory criteria for denying
bail are vague and imprecise. s8 and s9 can be expected to be vague as well.

Wrong Laws 47.19

 R v Gamble (1988)- the person was tried and convicted of murder and imprisoned
under laws that had been enacted. She should have been tried with offences which
existed during the time of the offence. This affected her eligibility for parole. Wilson J-
for the SCC held- the continued detention of the prisoner without the eligibility for
parole was a breach of s7. A basic tenant of the legal system is that” an accused
 must be tried and punished under the law in force at the time the offence was
committed. She was eligible to apply for parole immediately.

Right to Silence 47.20

 R v Hebert (1990)- the accused had been arrested and advised of his right counsel. He
did retain counsel and advise the police he did not want to make a statement. He then
was placed in custody with an undercover cop to whom the accused made an
incriminating statement. SCC held that the statement had been obtained in breach of
the Charter. In effect the police had used a trick to subvert the accuser’s election not
to make statement to the police. The reason why it was under s7 and not s10(b)(right to
counsel) is because court took the right to silence route. Note: If it was a voluntary
statement to another prisoner or even an undercover cop the result would have been
different.
 R v Broyles (1991)- was another jailhouse confession. The accused made a statement
while in custody to a friend who visited him in the jail. The friend had been recruited
as police informer. The difference between Herbert and this case is that it was a police
informer. SCC held it was breach to his right and the statement was excluded.
 Section 7 contains residual of the right to silence which supplements s11(c) and 13.
 Section 11(c) which applies only to the accused in a criminal trial (making the accused
a non-compellable witness) is supplemented by s7 which applies to any witness in any
proceeding and which makes the witness non-compellable if the true purpose of calling
the witness was to obtain incriminating evidence against the witness.
 R v Fitzpatrick ( 1995) concerned the requirement of the federal Fisheries Act that
records be kept by fishers and supplied to government on a daily basis detailing their
daily catch of fish. Could these records be used in trial as evidence against him? SCC
held- there was no breach of s11(c) and no breach of s7 because in the context of
the regulatory scheme to which the accused had voluntarily submitted by
engaging in the business of fishing fundamental justice did not prove an immunity
against the use of statutory compelled information. A statutory compulsion to give
testimony is a deprivation of liberty under s7.
 The s7 right against self-incrimination may give rise to 3 different kinds of
immunity.
a. “Use Immunity”- which protects the witness from having the compelled
testimony used to incriminate him or her in a subsequent proceeding.
This is provided to a witness who testifies in any proceedings by s13 and
to persons other than witness by s7 –illustrated by R v White ( 1999)
i. is a legal protection granted to a witness in which their
testimony cannot be used against them in a criminal
prosecution. In other words, if a person is granted use immunity,
anything they say during their testimony cannot be used directly
as evidence in a case against them. However, use immunity does
not protect the individual from prosecution if other evidence
(unrelated to their testimony) exists to support a case against
them.
b. “Derivative Use Immunity”- which protects the witness from having
the compelled testimony used to obtain other evidence (derivative or
secondary) to incriminate him or her in a subsequent proceeding
 unless the derivate evidence is discoverable independently of the
compelled testimony.
i. In other words, it prevents the prosecution from using the
individual’s testimony to lead to new evidence or findings that
could be used to prosecute the person. It essentially shields
against indirect use of the testimony.
c. the third is an Exemption from testifying in the first place which
applies if an attempt is made to use a statutory compulsion to obtain
testimony from the predominate purpose of obtaining evidence for the
prosecution of the witness this is illustrated in R v Jarvis ( 2002)
i. Statutory compulsion: Laws that compel individuals to testify.
In other words, if the legal system or authorities are trying to
compel a witness to testify (typically through a court order or
other legal means), but the main intention behind this compulsion
is to use the testimony to later prosecute the person being
compelled to testify, the witness may be exempt from testifying
altogether. This exemption arises because it would be unfair to
compel someone to testify against themselves if the goal is to
gather evidence to prosecute them.
 R v White (1999)- whether reports made to police under the compulsion of a
provincial law could be used against the person reporting them. SCC held- because the
accident reports were provided under compulsion their admission into evidence
against the accused would violate a principle of fundamental justice under s7 –a
principle against self-incrimination. The court distinguished on the grounds that
driving is not freely undertaken in precisely the same way as one is free to participate
in a regulated industry such as commercial fishery.
 R v Jarvis ( 2002)- Tax related case. The taxpayer was vulnerable to the penalty of
imprisonment meaning s7 was applicable. SCC held-the CRA during the investigative
phase-tax officials could not continue to use the audit power to collect evidence for
criminal prosecution. If more material was needed it would have to be done through a
search warrant.
 Section 13- which applies only to self-incriminatory evidence given by a witness
(making it inadmissible to incriminate the witness in other proceedings)

FAIR TRIAL 47.21

a. The Right to a Fair Trial
 The principles of fundamental justice obviously require that a person accused of a
crime receive a fair trial.
 Section 7 overlaps with Section 11(d)- which also guarantees a person charged with an
offence “a fair and public hearing by an independent and impartial tribunal”
 Section 7 is wider than Section 11 (d) because it also applies to civil/administrative
proceedings where they affect life liberty and security of persons.
 Example: New Brunswick v G.(J).[1999]SCC held: that an application by the state to
remove children from the custody of a parent affected the parent’s security of the
person and made s7 applicable. Principles of fundamental justice required a fair
hearing be provided and that the parent be provided with state funded representation.
 Winnipeg Child and Family Services v KLW ( 2000)- held that the warrantless
apprehension by the state of a child “in need of protection” was not a breach of the
principles of fundamental justice. A requirement of a warrant issued by a judge or a
hearing before a judge prior to apprehension would lead to delay which would create a
risk of harm to the child. The principles of fundamental justice were satisfied by a
post-apprehension hearing.

Extradition of a Fugitive- to face trial in another country starts with the arrest of the
fugitive and a hearing before the judge to determine whether the requesting state has
sufficient evidence. This process is a denial of liberty to the fugitive and the hearing must
conform to the principles of fundamental justice. The fugitive is not entitled to a full-
dress criminal trial because determination of guilt will be dealt with later.
 Extradition Judge- all that she/he can do is determine whether the requesting state has
a prima facie case against the fugitive.
 Fugitive is Entitled- to know the case against her, she is not entitled to the full
disclosure of all relevant prosecution evidence that is requested in a criminal trial.
 “No” to the US- Despite the fact the US had made out a prima facie case against the
fugitives, the SCC stayed the proceedings on the grounds that the extradition of the
fugitives in light of these threats would be a breach of the principles of fundamental
justice.
 Right to a fair trial does not mean that all existing rules and procedure are
constitutionalized.
 Court upheld these so they would reduce the stress on a young witness and enhance the
reliability of their evidence.
 R v. L ( D.O.)[1993] SCC upheld a provision of the CC that allows for the videotaping
of the evidence of a witness who is under the age of 18 so that the trial the witness
need only adopt the contents of the tape instead of going over the whole story again.
 R v. Levogiannis [1993]- SCC upheld another provision that allows a witness under
the age of 18 to testify from behind a one-way screen so the witness cannot see the
accused (although the accused can see the witness)
 Note: if the fairness of the trial is prejudice-court has taken comfort from the fact the
trial judge had been given a discretion to deny the use of a video tape or screen in that
case.

Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350

The SCC took a more radical departure from the traditional trial format.
 Background: The security certificate was issued because the government believed
Charkaoui posed a threat to national security and was involved in terrorist
activities. However, the government did not reveal the evidence against him to
either Charkaoui or his lawyer, arguing that disclosing the information would
compromise national security. Charkaoui was held in detention without
knowing the full evidence against him, which led to a challenge against the
 constitutionality of the security certificate process.
 Issue: Was the process for the issue of a “security certificates” under the federal
Immigration and Refugee Protection Act. The Act empowered 2 minsters to issue
the certificate declaring a non-citizen named in the certificate to be a threat to
national security. The certificate authorized the arrest and detention of the person.
The certificate was then brought to a judge to review on the standard of
reasonableness then if found to be reasonable the person would be deported.
 The Problem- the person named in the certificate at no stage known the nature of
the case against him. There was no hearing on the original issue. The judge was
also under obligation not to disclose to the name person the information upon
which the certificate had been based.
 SCC held that- the issue of the security certificate was a deprivation of liberty
under s7 and that the review process did not satisfy the principles of fundamental
justice because it did not provide the named person a fair hearing.
 McLachlin CJ- acknowledged that- “the procedures required to meet the demands
of fundamental justice depend on the context.” And she acknowledged
“national security considerations can limit the extent of disclosure of information
to the affected person” but she held “the secrecy required by these scheme denies
the named person the opportunity to know the case put against him or her and
hence to challenge the government’s case.
 She then applied the Oakes Test and s1 of the Charter.
 There was no doubt that protecting secret information respecting intelligence
sources and national security and withholding of such information was rationally
connected to the objective. But… the law failed the least dramatic means test
because Parliament could have adopted better procedures to protect secrecy that
were less intrusive on individual’s rights.
 She pointed to a system of “special counsel” that had been used in Canada was
used in other countries in national security cases.
 She did not say this was the only way stating “precisely what is to be done is for
parliament to decide.”

Section Category Right/Freedom

Rights are subject to reasonable limits prescribed by law
1 General Limitations
(Oakes test applies)
- Freedom of conscience and religion
Fundamental - Freedom of thought, belief, opinion, and expression
2
Freedoms - Freedom of peaceful assembly
- Freedom of association
- Right to vote (s. 3)
3–5 Democratic Rights - Maximum duration of legislative bodies (s. 4)
- Annual sitting of legislatures (s. 5)
Section Category Right/Freedom
- Right to enter, remain in, and leave Canada
6 Mobility Rights
- Right to move and pursue livelihood across provinces
- Life, liberty, and security of the person (must not be
7 Legal Rights
deprived except in accordance with fundamental justice)
8 Legal Rights - Right to be secure against unreasonable search or seizure
9 Legal Rights - Right not to be arbitrarily detained or imprisoned
- Rights upon arrest or detention (e.g., right to counsel, to be
10 Legal Rights
informed of reasons)
- Rights in criminal and penal matters (e.g., fair trial,
11 Legal Rights
presumption of innocence)
12 Legal Rights - Right not to be subjected to cruel and unusual punishment
13 Legal Rights - Protection against self-incrimination
14 Legal Rights - Right to an interpreter
- Right to equality before and under the law without
15 Equality Rights
discrimination
- English and French have equal status in Parliament, courts,
16–22 Official Languages
and federal institutions
Minority Language - Right to education in minority language where numbers
23
Education warrant (for official language minorities)
24 Enforcement - Right to apply to court for a remedy if rights are infringed
- Charter does not abrogate existing Aboriginal, treaty, or
25 Aboriginal Rights
other rights
- Charter does not deny other rights and freedoms existing in
26 Other Rights
Canada
- Charter must be interpreted in a manner consistent with
27 Multicultural Heritage
multiculturalism
28 Gender Equality - Rights guaranteed equally to male and female persons
29 Religious Schools - Charter does not affect rights regarding religious schools
30 Territories - Charter applies equally to the territories as to the provinces
31 Legislative Powers - Charter does not extend legislative powers
- Applies to Parliament and government of Canada and the
32 Application of Charter
provinces
Notwithstanding - Allows legislatures to override certain sections (2, 7–15)
33
Clause temporarily (5 years)

ABORIGINAL RIGHTS, TITLE, TREATY

Early Canadian State
o Indigenous peoples have occupied the land known as Canada for thousands of years
o Royal Proclamation of 1763: when the British won control of New France in 1763, the
Proclamation issued by King George III forbade settlers from encroaching on
Indigenous lands; many treaties negotiated (often “peace and friendship” treaties)
o As of at least 1867 (the year the BNA Act was enacted), there was explicit recognition
that Indigenous and non-Indigenous legal systems operated concurrently

Purpose of Section 91(24)- there was a concern for the aboriginal people against the local
settlers, whose interest lay in an absence of restrictions on the expansion of European
settlement.
Who is an Indian? –In Canada is used to mean the aboriginal peoples who have been living
there long before European contact.
Not “Indians” –some persons’ with Indian Blood and Culture-who are outside the definition.
These are non-status Indians. The Metis People (French/Indian) outside reserve system most
likely Indians Under s 91(24) & The Inuit or Eskimo people- are outside reserve system but held
to be Indians within the meaning of s91(24) Metis and Inuit are not governed by the Indian Act.

Section 91(24)- of the Constitutional Act 1867 – confers power upon the federal Parliament
the power to make law in relation to “Indians, and lands reserved for the Indians”.

Federal Legislative Power

o S. 91(24) of the Constitution Act, 1867 confers upon the federal Parliament the power to
make laws in relation to “Indians, and lands reserved for the Indians”.
o Two powers mentioned in s. 91(24)
 “Indians” – the federal Indian Act defines the term and establishes a register;
known as “status Indians”; also includes non-status Indians including Métis
and Inuit (Daniels v. Canada (2016) and s. 35(2) of the Constitution Act, 1982)
 “Lands reserved for the Indians” – includes reserves and the huge area of
land recognized by the Royal Proclamation of 1763 and indeed all lands held
pursuant to aboriginal title; this means that only the federal Parliament has the
power to extinguish
aboriginal title

Provincial Legislative Power

o Issue: Do provincial laws apply to Indians and lands reserved for Indians?
o YES. The general rule is that provincial laws apply to Indians and lands reserved for
the Indians (look at “pith and substance” of the law)
o Sometimes the provincial law will be valid because it is exercised over property and
civil rights in the province (s. 92(13)) – see Kitkatla Band v. British Columbia (2002))
o There are FIVE EXCEPTIONS to this rule:
1. Singling Out – if a province singled out Indians or Indian reserves, the law
would be challenged as one that is within federal power
2. “Indianness” – a branch of interjurisdictional immunity: a provincial law
that affects an integral part of primary federal jurisdiction over Indians and
lands reserved for the Indians will be inapplicable to Indians. In Tsilhqot’in
Nation v. British Columbia (2014), the SCC clarified that provincial
laws do apply to aboriginal and treaty rights, although any infringement
of those rights would have to serve a compelling and substantial objective
and otherwise satisfy the framework in R. v. Sparrow (1990) (Sparrow
framework? s. 35 authorizes limits on treaty rights using a similar
framework as the Oakes test)
3. Paramountcy – if a provincial law is inconsistent with a provision of the
Indian Act (or any other federal law), the provincial law is rendered
inoperative by the doctrine of federal paramountcy
4. Natural Resource Agreements – the right of Indians to take game and fish
 for food
5. Section 35 of the Constitution Act, 1982 – provides that the “existing
aboriginal and treaty rights are recognized and affirmed”; the SCC has
affirmed that, despite the wording of s. 35, provincial laws still apply to
aboriginal and treaty rights, but subject to the restriction that the law must
serve a compelling and substantial objective (like the Oakes test – known as
the Sparrow framework – stay tuned).

S. 88 of the Indian Act

o Section 88 of the Indian Act provides as follows:
 Subject to the terms of any treaty and any other Act of the
Parliament of Canada, all laws of general application from time
to time in force in any province are applicable to and in respect
of Indians in the province, except to the extent that such laws are
inconsistent with this Act or any order, rule, regulation or by-
law made thereunder, and except to the extent that such laws
make provision for any matter for which provision is made by or
under this Act.
o S. 88 makes it clear that provincial “laws of general application” apply to
Indians, which operates as a federal adoption, or incorporation by
reference, of provincial laws, making the provincial laws applicable as part of
federal law.

S. 35 of the Constitution Act and the Doctrine of Reconciliation

o The rights of Indigenous peoples were entrenched in the Constitution Act, 1982
o one of the two fundamental purposes of s. 35 was the achievement of a just and
lasting settlement of aboriginal claims
o Section 35 was meant to provide a solid constitutional base upon which
subsequent negotiations can take place
o affords aboriginal peoples constitutional protection against provincial
legislative power

Aboriginal Rights Are Protected under Section 35:

Section. 35 (1) – The existing aboriginal and treaty rights of the aboriginal peoples of
Canada are hereby recognized and affirmed.
Section. 35 (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and
Métis peoples of Canada.
1. The underlying purpose of s. 35 is the reconciliation of the pre-existence
of aboriginal societies with their own practices, traditions and cultures
with the sovereignty of the Crown
2. The idea that the underlying purpose is reconciliation between Indigenous
societies in Canada with the sovereignty of the Crown remains a
 fundamental core organizing concept in s. 35 cases. The idea that s. 35
should be interpreted consistently with its underlying purpose is reflective
of the SCC’s more general purposive approach to the interpretation of the
Constitution
Section. 35 (3) For greater certainty, in subsection (1) "treaty rights" includes rights that
now exist by way of land claims agreements or may be so acquired.
Section. 35 (4) Notwithstanding any other provision of this Act, the aboriginal and
treaty rights referred to in subsection (1) are guaranteed equally to male and female
persons.

S. 35 is Outside of Charter Rights

 The Charter of Rights and Freedoms occupies ss. 1-34 of the Constitution Act,
1982
 Section 35 is outside the Charter of Rights
 What does this mean?
o No qualification under Section. 1 of the Charter (i.e. no Oakes test)
Charter rights (Sections 1–34) can be limited by government action
if the limitation is reasonable and justified in a free and democratic
society (this is called the Section 1 test). Section 35 rights are not
subject to Section 1, meaning they can't be limited just because the
government thinks it's reasonable or for the public good.
o Instead, a different test applies: the Sparrow test
o Not subject to the Section. 33 override (i.e. the notwithstanding clause)
But because Section 35 is not in the Charter, the Notwithstanding
Clause doesn’t apply to Aboriginal or treaty rights.
o However, not enforceable under Section. 24

What are Aboriginal Rights?

o They are rights held by aboriginal peoples, not by virtue of Crown grant,
legislation or treaty, but by reason of the fact that aboriginal peoples were once
independent, self-governing entities in possession of most of the lands now
making up Canada.
 Calder v. A.G.B.C. (1973) – first case where the SCC recognized that
aboriginal rights survived European settlement. Indigenous rights
were not extinguished by the arrival of the Europeans.
 R. v. Sparrow (1990) – SCC recognized the aboriginal right of a
member of the Musqueam Indian Band to fish for salmon in the Fraser
River, where his ancestors fished “from time immemorial” (based on
s. 35 of the Constitution Act, 1982); the SCC discussed the fiduciary
duty owed by the Government; this confirms that aboriginal rights,
including the fiduciary duty, are constitutionally guaranteed through s.
35.
Aboriginal Rights The right to be able to practice the language, religion, ceremonies, culture
without the interference of the government.
Definition of Aboriginal Rights:
o “Aboriginal rights” are rights held by aboriginal peoples, not by virtue of
Crown grant, legislation or treaty, but by reason of the fact that aboriginal
peoples were once independent, self-governing entities in possession of most of
the lands now making up Canada.
o But how do we know what they are?
o R. v. Van der Peet (1996) – set out the legal test to identify an existing
aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982
o “In order to be an aboriginal right an activity must be an element of a
practice, custom or tradition integral to the distinctive culture of the
aboriginal group asserting the right”
o In order to be “integral”, the practice must be of “central significance” to the
aboriginal Society: it must be a “defining” characteristic of the society
o The practice must have developed before “contact” i.e. the arrival of
Europeans in North America (but could evolve over the years)

R v Van der Peet, 1996 SCC (Legal Definition for Aboriginal Right)
 Facts: Appellant, Dorothy Van der Peet, a member of the Sto:lo First Nations, was
charged and convicted under s. 61(1) of the Fisheries Act with the offence of
selling fish caught under the authority of an Indian food fish licence, contrary to s.
27(5) of the British Columbia Fishery (General) Regulations. The license is issued
under the Federal Fisheries Act and it restricted the holder of the license to fishing
for good. The sale of fish caught under the fish was prohibited by separate
regulations that had been enacted under the Act. Appellant is a member of the
Sto:lo and argues that she was exercising an aboriginal right to sell fish. Argues
that s. 27(5) infringes her right to sell fish and is therefore invalid on the basis that
it violates s. 35(1). This case went further than Sparrow. Sparrow recognized the
existence of a right to fish for food and ceremonial purposes, but this case argued
for an even broader right to fish, a right to sell salmon for money and other goods.
Appellant invoked s. 35 as a shield arguing that in selling the fish she was
exercising an Aboriginal right to sell fish for money or other goods which had been
unjustifiable violated by the regulation.
 Issue: Do the Sto:lo peoples have an aboriginal right to sell fish for money or other
goods? Key issue was the first stage of the s. 35 framework.
 Held: NO. Sto:lo have no Aboriginal right to sell fish for money or other goods.
The activity must be to the distinctive culture of the group, practiced prior to
European contact (for First Nations and Inuit) or effective European control (for
Métis). Central and defining to the society’s way of life—not just incidental.
TEST ELEMENTS: (Pg. 56-62)
1. PART 1: The activity must be an element of a practice custom or tradition that is
integral to their distinctive culture. Cannot sell for profit, you can barter or trade.
a. In order for the practice to be “integral”, the practice must be “of central
significance” to the aboriginal society: it must be a defining characteristic
of the society, “one of the things that made the culture of the society
distinctive.
2. PART 2: The practice, custom, tradition must have existed before European
contact. (Cannot use a net)
Issue: Can a practice that was adopted by an aboriginal people purely for survival count
as one that was integral to distinctive culture?
R. v. Sappier (2006) – harvesting wood to build shelter (which any society would do to
survive) – does this meet the Van der Peet test?
Held: SCC said YES “It is the practice, along with its associated uses, which must be
allowed to evolve. The right to harvest wood for the construction of temporary shelters
must be allowed to evolve into a right to harvest wood by modern means to be used in the
construction of a modern dwelling Any other conclusion would freeze the right in its pre-
contact form. (at para 48)” The practice can evolve over the years as the result of
contact- (i.e. bone hook-metal hook & bow and arrow- gun) but Do not qualify
contemporary practices that developed “solely as a response to European influences” do
not qualify.

“Existing” Rights
 S. 35 protects “existing” aboriginal and treaty rights (s. 35(1) of the Constitution
Act, 1982)
 Some treaty rights come into existence after 1982 (but not aboriginal rights, as they
must pre-date European settlement) – are they protected? Yes…
 S. 35(3) clarifies that “for greater certainty, in subsection (1) “treaty rights”
include rights that now exist by way of land claims agreement (i.e. a treaty) or
may be so acquired
 R. v. Sparrow (1990) – clarified that “existing” meant “unextinguished”

Aboriginal Land (Getting Rid of Land)

Van der Peet Test (THEY CANNOT SELL THEIR LAND, REFER BACK TO VAN
DER PEET, THEY MUST SURRENDER TO FEDERAL GOVERNMENT AND
FEDERAL GOVERNMENT ACTS AS THEIR AGENT.)
o Doing anything to the land that is contrary to the first nations practices customs or
traditions: (they cannot start selling it off or leasing it off) Renting it out never
happened in first nations culture. At the time of contact.
1. Surrender it to federal government
2. Federal government acts as an agent
3. Federal government sells it at fair market value
4. BECAREFUL: LEASING you still have to surrender it
Aboriginal Self-Government
o Aboriginal people were living in self-governing communities before the arrival of
Europeans
o R. v. Pamajewon (1996) – the SCC rejected a claim by the Shawanaga and Eagle
Lake First nations to conduct high stakes gambling on their reserves. In each case
the gambling operations were conducted pursuant to a law enacted by the band
council. It was not a by-law of the Indian Act. They were charged with a gaming
offence under the Indian Act. Larmer CJ characterized the claimed right as a
right “to participate in and regulate, gambling activities on their respective
reserve lands.” Evidence showed- that they gambled before the arrival of
Europeans, it was small scaled and informal and was never part of the means by
which the communities were sustained. Apply the Van der Peet test i.e. the
aboriginal right of self-government extends only to activities that took place before
European contact, and then only to those activities that were an integral part of
aboriginal society
 Significance: Court rejected a broad claim to self-government under
Section 35. Applied the Van der Peet test to claims of governance.
Confirmed that Indigenous communities must prove a specific practice
was integral to their culture before contact to have it constitutionally
protected.
o Delgamuukw v. British Columbia (1997) – Note that self-government and
aboriginal title go together because title is a communal right, and uses to which
land is put are decided communally… (so let’s look at aboriginal title…)
o Question- If the federal or provincial laws apply in the face of an inconsistent
aboriginal law is a separate question from the extent of the power of self-
government. If the Criminal code in Pamajewon would have to yield to aboriginal
law, then a question of paramountcy would have arisen and should be resolved by
the Sparrow Test.
 In other words: even if a First Nation has a recognized self-government
power, it doesn’t automatically mean that their laws prevail over
federal/provincial ones. That depends on how the laws conflict and how
the Constitution resolves such conflicts.
 If the Criminal Code provisions that prohibit gambling came into conflict
with an Indigenous law that allowed and regulated gambling... Then
you’d have to decide which one prevails: the federal law or the
Indigenous law. This would trigger the need to apply a Sparrow Test to
resolve the conflict.
o Potential Question—Does the provision of the Criminal Code satisfy the Sparrow
test of justification? Delgamuukw v B.C. (1997)- proceedings for a declaration
that they had aboriginal title and self-government right over a territory in northern
B.C. The SCC did not grant the declaration sought and ordered a new trial. Larmer
CJ did provide extensive reasons as to the nature of aboriginal title.
o Two things that was said about aboriginal title and self-governance is 1) land held
under held under aboriginal title is “held communally” & 2) aboriginal title
“encompasses the right to choose to what uses land can be put.”
Aboriginal Title Rights (Pg. 66-70)
o “Aboriginal title” is the right to the exclusive occupation of land, which permits
the aboriginal owners to use the land for a variety of purposes.
Delgamuukw v. British Columbia (1997) – Test = aboriginal title is proved by
showing that (1) an aboriginal people occupied the land prior to sovereignty; (2) if
present occupation is relied on for proof of occupation there must be continuity; and
(3) that the occupation is exclusive (which can be proved through oral histories)
 Facts: Appellants, who were all Gitksan or Wet’suwet’en hereditary chiefs,
claimed separate portions of 58,000 square km in BC. BC argued the appellants
have no right or interest in the territory, or alternatively, that the appellants’
cause of action ought to be for compensation from the federal government. There
were approximately 7,000 aboriginal peoples living in the area and 30,000 non-
aboriginal people living in the area at the time of trial.
 Prior Proceedings: TJ denied the claims to Aboriginal title being made on
behalf of the Gitksan or Wet’suwet’en. Primarily because he rejected most of the
evidence they submitted in support of their claim. The case ended up on appeal
in SCC.
 Held: New trial ordered to make new factual findings. Even though the SCC sent
the case back for a new trial, it took the opportunity to lay down important
principles about evidence and the substance of the law of Aboriginal title that
were to govern this new trial that it ordered.
DELAGMUUKW TEST
THREE ELEMENTS: Whether this particular tribe can claim title rights to this
particular land. If these three elements are met they own the land. It is designated as
first nations land.
a. Must have occupied prior to European sovereignty
i. The Indigenous group must show that the land was occupied prior to the assertion
of Crown sovereignty (typically pre-contact or pre-effective control). Occupation
must reflect the landholding customs of the group (e.g., seasonal use can count,
depending on the culture). The occupation must be intensive and regular enough to
support a claim to the land
b. Must have been continuously (between past and present occupation)
i. There must be a continuing connection between the present claimants and their
historical occupation of the land. This does not require unbroken occupation — but
the connection to the land must persist over time. Gaps due to displacement or
government interference don’t automatically break continuity.
c. Exclusively must have been occupied
i. The group must have had the intention and capacity to retain exclusive control over
the land at the time of Crown sovereignty. This doesn’t mean complete isolation —
shared use with other Indigenous groups may still be consistent with exclusivity, if
managed according to traditional laws. Evidence of defending territory, regulating
access, or recognizing boundaries supports exclusivity.
 o Note: the Van der Peet test (“integral to distinctive culture”) is not required
o Aboriginal title is sui generis (one of a kind), meaning there are differences between
aboriginal title and non-aboriginal title (see Hogg pp. 28-32 to 28-34)
o The point of time at which aboriginal occupation of the land must be proved in order
to make out aboriginal title is “prior to sovereignty”not “prior to contact”
Tsilhqot’in Nation v. British Columbia (2014): - SCC ruled in favour of the
Tsilhqot'in First Nation, granting it land title to 438,000 hectares of land; First time a
court has recognized Aboriginal title to a specific land area in Canada.
Key findings:
 Radical or underlying Crown title is subject to Aboriginal land interests
where they are established.
 Aboriginal title gives the Aboriginal group the right to use and
control the land and enjoy its benefits.
 Governments can infringe Aboriginal rights conferred by Aboriginal
title but only where they can justify the infringements on the basis of a
compelling and substantial purpose and establish that they are
consistent with the Crown’s fiduciary duty to the group.
 Resource development on claimed land to which title has not been
established requires the government to consult with the claimant
Aboriginal group.
 Governments are under a legal duty to negotiate in good faith to
resolve claims to ancestral lands.
 See also Hogg pp. 28-32 to 28-34 for the differences between
Aboriginal and non-Aboriginal title
5 Differences between Aboriginal Title vs Non-Aboriginal title
1. Source of aboriginal title- derives from pre sovereignty occupation rather
than post sovereignty grant from the crown.
2. The range of uses to which aboriginal title land may be put.
3. Aboriginal title is inalienable, except to the Crown. The Crown has to act
as an immediatry between the aboriginal owners and third parties. To pass
to third parties, the aboriginals must surrender the land to Crown.
4. Aboriginal title can only be held communally.
5. Aboriginal title is constitutionally protected.

Aboriginal Rights Recap

Section. 35(1) protects Aboriginal rights as follows:
 Activity-specific rights
o Sparrow (1990), Van der Peet (1996)
o See Hogg section 28.5(a),(b)
 Self-government rights
 o Pamajewon (1996), Delgamuukw (1997)
o Hogg 28.5(c)
 Aboriginal title
o Delgamuukw (1997), Tsilhqot’in (2014)
o Hogg 28.5(d)

Extinguishing Aboriginal Rights

 Aboriginal rights, including aboriginal title, can be extinguished in TWO
WAYS:
1. By surrender (must be voluntary), and
2. By constitutional amendment (which cannot be unilateral by
government).
 Note: Section. 35 of the Constitution Act, 1982 removed the power to
extinguish aboriginal rights by legislation

Aboriginal Treaty Rights

a. Rights the first nations people negotiation with the Europeans at the time of
contact.
b. It is the catch all provision.
Definition of Treaty has been described as “unique” or “sui generis”. It not subject or to
the rules of international law and is not a treaty at international law. It is not a contract and
not subject to rules of contract law. It is an agreement between the Crown and aboriginal
nation with the following characteristics.
 S. 35 itself is NOT the source of these rights, it is merely recognizing and
affirming rights already considered to exist
 Note that they are not part of the Charter, so are not subject to ss. 1 and 33
 Extinguishment unilaterally by statute (either provincial or federal) no
longer permitted
 Rights can be extinguished by voluntary surrender or constitutional
amendment

ARE THERE ANY LIMITATIONS TO THESE RIGHTS? GOVERNMENT CAN

SUPERSEDE? SEC. 1 AND SEC. 33 DO NOT APPLY TO FIRST NATIONS
RIGHTS.

Treaty Rights
 What is a “Treaty”?
 Not a treaty at international law; not a contract
 A “treaty” is an agreement between the Crown and an Aboriginal
Nation with the following characteristics:
1. Parties: The Crown and an aboriginal nation
2. Agency: the signatories have the authority to bind
3. Intention to create legal relations: the parties must intend to create
legally binding obligations
4. Consideration: the obligations must be assumed by both sides, so that
the agreement is a bargain
 5. Formality: there must be a certain measure of “solemnity”

Interpretation of Treaty Rights

 Treaties should be “liberally construed and doubtful expressions resolved
in favour of the Indians”
 Why? unequal bargaining power; fiduciary duty
 R. v. Marshall 1 (1999) – issue was whether a Mi’kmaq Indian had a treaty
right to catch and sell eels (which he was doing without a licence); the
SCC gave a generous interpretation of the treaty holding that a “peace and
friendship” treaty which said nothing directly about fishing did provide a
treaty right to catch and sell eels.
o Recognized historic treaty rights in a modern economic context.
Confirmed the Mi’kmaq have a constitutional right to fish and sell
their catch. Reinforced the importance of treaty interpretation in
favor of Indigenous peoples, using a generous and purposive
approach.

Extinguishing Treaty Rights

 Treaty rights, just like aboriginal title, can be extinguished in Two Ways:
o By surrender (must be voluntary), and
o By constitutional amendment (which cannot be unilateral by
government).
o Note: s. 35 of the Constitution Act, 1982 removed the power to
extinguish treaty rights by legislation

SPARROW TEST (ONLY WAY THE GOVERNMENT IS ABLE TO SUPRESEDE ANY

OFF THOSE THREE RIGHTS IS THROUGH THIS TEST)

STEP 1 
FIRST QUESTION:
Does the Indigenous group have a valid Section 35 right? Is it an existing Aboriginal or
treaty right (as of 1982)? Has it been recognized through evidence or past use?

SECOND QUESTION:
To invoke s. 35, the claimant must demonstrate that the legislation results in prima
facie interference with an existing aboriginal or treaty right (purpose/effect)
 Is the limitation unreasonable
 Does the regulation impose undue hardship?
 Does it deny to the holders of the right their preferred means of
exercising that right?
STEP 2 
If interference found, ONUS is on Crown to show it is justifiable, by establishing:
1. Government must prove that it’s pursing a substantial and compelling interest. There
must be an objective and it must have an interest and they must be together.
 Example such as: Conservation of natural resources (e.g. fish or
wildlife) Public safety Economic Development Environmental
protection
2. That the infringement is consistent with the honour of the Crown, including its fiduciary
duties arising out of its "special trust relationship" with Aboriginal peoples. It is doing
so, pursing this: in a manner that is compatible with the honorable crown. The federal
government is pursuing this interest that does not involve, fraud, violence, deceit in other
words they are doing so in a fiduciary manner. This is in the best interest of Canada.
Key: That includes a duty to consult.
 The action must reflect the principle of reconciliation.
3. Minimal Impairment - The infringement must be as minimal as possible. Were less
intrusive means available? Did the government consider the Indigenous perspective?
4. Duty to consult was created so that the particular Indigenous community could
participate in decision in relation to the land or the resource in question, that it could
share in the benefits and have its interests at least partially protected in the interim.
 Has the government consulted and accommodated the Indigenous group
in a meaningful way? More serious infringements require deeper
consultation and potentially compensation.

R v. Gladstone (1996) – SCC modifies Sparrow, making it easier for government to

justify infringing s. 35
 Sparrow notion of priority of access should be limited to cases where
the Aboriginal right in question is "internally limited”
 Crown can pursue a number of (vague) objectives regarding commercial
rights /those without inherent limit: regional economic fairness, non-
aboriginal’s historical reliance upon resources, fairness in distribution of
scarce resource, conservation … (deference to government/low
threshold of judicial review)

Duty to Consult
 Duty to engage in meaningful consultation and accommodation where
contemplated action could adversely affect an aboriginal right or title
 Imposed by s. 35
 Part of a process of reconciliation flowing from the Crown’s duty of honorable
dealing: see Haida Nation v. British Columbia (2004)
 Federal Court of Canada – Trans Mountain pipeline decision (Tsleil-Waututh
Nation v. Canada (Attorney General (2018))
 Recently: Coldwater First Nation v. Canada (Attorney General) (2020) FCA 34

Remedies for Breach of S. 35

 Generally, a law that has been held to infringe s. 35 will be a nullity and will not
authorize any regulatory action
 Remedies could be a declaration that a law is invalid and can even result in
damages in tort, contract or breach of fiduciary duty

Section 25 of the Constitution Act, 1982

 S. 25 is part of the Charter
  Does not create any new rights
 Makes it clear that the Charter is not to be construed as derogating from “any
aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples
of Canada” (i.e. it is an interpretive provision)

Section 35.1 of the Constitution Act, 1982

 Concerns constitutional amendment
 Section 35.1 declares that the federal and provincial governments are committed in
principle that, before any amendment is made to s 91(24) or to ss. 35 or 25, a
constitutional conference will be convened to which representatives of the
aboriginal peoples of Canada will be invited to participate in discussions of the
proposed amendment

Freedom of Expression
Section 2(b) of the Charter: Fundamental Freedoms
 Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the
press and other media of communication.
 Freedom of expression is not absolute
 Section 2(b) of the Charter is subject to s. 1 (of course), which means that a law that
limits freedom of expression will be valid under s. 1 if it comes within the s. 1
framework: “such reasonable limits prescribed by law as can be demonstrably justified
in a free and democratic society”.

Charter Analysis is in Two Stages:

1. Ask, does the law (or action) limit freedom of expression?
2. If yes, does the law satisfy the standards of justification under s. 1 (i.e. is the
law saved by s. 1)?

Note: most freedom of expression cases are resolved at stage 2 of the analysis (s. 1)
Because of how broad and inclusive the Supreme Court of Canada has interpreted
Section 2(b). Why because it’s very easy to show a breach of freedom of expression.

What is the rationale for protecting freedom of expression?

 The right is broad: Why protect expression?
o Expression required in a democracy, very important.
o Political speech is arguably at the core of s. 2(b)
o Expression as an instrument of truth (free exchange of ideas - On Liberty by
Mills and Oliver Wendel Homes argues suppression of opinion is wrong
because a market place of ideas can create the truth with history, social/natural
science, medicine and all branches of human knowledge.)
o Expression as an instrument of personal fulfilment (including art, music,
dance – even child pornography? See R. v. Sharpe (2001)

R. v. Sharpe (2001) – child pornography

  “I turn first to consider the law’s application to self-created works of the imagination,
written or visual, intended solely for private use by the creator. The intensely private,
expressive nature of these materials deeply implicates s. 2(b) freedoms, engaging
the values of self-fulfilment and self-actualization and engaging the inherent
dignity of the individual. Personal journals and writings, drawings and other forms of
visual expression may well be of importance to self-fulfilment. . . As stated in Irwin
Toy, supra, at p. 976, “the diversity in forms of individual self-fulfilment and human
flourishing ought to be cultivated in an essentially tolerant, indeed welcoming,
environment” (at para. 107).

Irwin Toy Ltd. v. Quebec (1989

Step 1: Is the activity "expression"?
 Expression is defined very broadly:
Any activity that attempts to convey meaning is considered expression.
Examples:
o Speaking, writing, protesting, art, film, online posts =YES
o Even commercial advertising = YES
o Violent acts (like assault) = NO (violence is not protected)
o If the activity does not convey meaning, or is pure violence, it’s not
protected under s. 2(b). If it does convey meaning, move to step 2.

Step 2: Is the government restricting the expression?

o Is a law or government action trying to suppress, restrict, or limit this
expression?
o The motive doesn’t matter — even content-neutral laws (like noise bylaws or
zoning rules) can limit expression.
If the answer is yes, there’s a prima facie breach of s. 2(b), and the government
must justify it under Section 1 of the Charter.

If there is a violation:
The court then uses the Oakes test under Section 1 to decide whether the restriction is a
reasonable limit in a free and democratic society.

Meaning of Expression
 What is “expression”?
o SCC defines it as follows: “Activity is expressive if it attempts to convey
meaning”.
o Includes pretty much everything (even parking a car??)
 What about “expression” that is also a crime i.e. communicating for the purposes of
prostitution which is a crime under the Criminal Code. Should this kind of expression
be protected expression under s. 2(b)?
  What about violence? Threats of violence? Depictions of violence? NO Included
within section 2(b), Threats of Violence not included.
 Can we decipher a governing principle in the definition of “expression”?

Content Neutrality
 SCC: the content of a statement cannot deprive it of the protection accorded by s. 2(b),
no matter how offensive it may be
 Why? We are Neutral to the Content
o If the content of the expression matters in terms of whether it will be protected,
it defeats the purpose of protecting expression
o Therefore, hate speech is protected speech (see R. v. Keegstra (1990))
o Also, 2(b) expression extends to deliberate falsehoods, including holocaust
denials (see R. v. Zundel (1992) and false, misleading and deceptive tobacco
advertising (Canada v. JTI-Macdonald Corp. (2007))
o But according to the SCC, “not all expression is equally worthy of protection”,
which becomes relevant only at the s. 1 stage of the analysis

R. v. Keegstra (1990))
Section 2(b): Freedom of Expression
 Keegstra’s speech — even though it’s deeply offensive and hateful — is still
“expression” under the Charter.
 So it is protected at the first stage of the analysis.

Section 1: Reasonable Limits: The Court used the Oakes test and found that the
restriction was justifiable:

1. Pressing and substantial objective:

Preventing harmful hate speech is important in a democratic society.

Hate speech undermines equality, social harmony, and can lead to discrimination and
violence.
2. Proportionality:

The law is narrowly tailored: it targets only speech that is willfully (deliberate,
intentional) and knowingly hateful.
Defenses exist: truth, religious belief, public interest.
It's not an overly broad restriction — it focuses on serious harm.

Content Neutrality and Section 1

 High / low value of expression
o Strict s. 1 analysis where expression at the core of s. 2(b)
o Relaxed s. 1 analysis where expression is not closely linked to rationales
underlying s. 2(b)
o See hate speech cases
 Role of the State: “singular antagonist” or protector
o Strict s. 1 analysis where state is the singular antagonist (e.g. restrictions on
 legal rights, ss. 7-14)
o Relaxed s. 1 analysis where state acts as protector, which is the case where the
state:
 makes decisions about competing interests
 decides how to allocate scarce resources
 intervenes to protect vulnerable parties
 Content-neutral laws are designed to regulate the time, place, or manner of
expression, rather than targeting specific ideas or viewpoints. When we talk about
content neutrality in relation to Section 1 of the Canadian Charter of Rights and
Freedoms, we’re addressing how limits on rights (such as freedom of expression under
Section 2(b)) can be justified under Section 1. Section 1 allows for limits on Charter
rights if those limits can be shown to be "reasonable" and "demonstrably justified in a
free and democratic society." The Oakes test, as mentioned earlier, is applied to
evaluate whether a law or government action that limits a Charter right is justified
under Section 1.

Here’s how content neutrality plays a role in this:

o Content-Neutral Restrictions: A law or regulation that restricts speech must
not discriminate based on the content of the expression. For instance, if a law
bans all forms of public protests in a particular area without regard to the
message being conveyed, this could be considered content-neutral (though still
subject to the Oakes test to ensure it’s justified). The law should apply to all
expressions, regardless of whether the message is political, religious, or
otherwise.
o Content-Based Restrictions: If a law discriminates based on the specific
content or viewpoint of expression, it is considered a content-based restriction,
which is much harder to justify under Section 1. The government must show
that the restriction is necessary and proportionate to achieve a pressing and
substantial objective. Content-based restrictions are often subjected to stricter
scrutiny because they may infringe upon freedom of expression more
significantly.
o Applying Content Neutrality to Section 1: When a law imposes a limitation
on freedom of expression, the government must demonstrate that the restriction
is both: Proportionate: The restriction must be carefully crafted to achieve the
government's objective without unnecessarily restricting freedom of
expression. This is particularly relevant in content-neutral cases because the
government must show that the restriction does not overly infringe on the
freedom to express diverse viewpoints.
o Necessary: The government must show that the limitation on expression is
necessary to achieve a substantial and important objective, and that there is no
less intrusive way to achieve this goal.

Ways of Limiting Expression

The courts have taken under review a variety of restraints including:
 R v Glad Day Bookshops (2004)- censorship of films
 Restrictions on the importation of books and magazines
 Re Southam and The Queen ( No1) (1983) restrictions on access to the courts
 Edmonton Journal v Alta [1989] reporting of judicial proceedings
  Dagenais v CBC [1994] a publication ban on fictional television program
 Thompson Newspapers Co v Can [1998] a prohibition on the publication of public
opinion polls in the final three days of an election campaign
 Prior restraint on publication (i.e. censorship)
 Border control (the importation of certain materials – see Little Sisters Book and Art
Emporium v. Canada (2000))
 Penal prohibition (i.e. making perjury or counselling suicide a crime)
 Prohibition against discrimination under a human rights statute
 Civil prohibition (i.e. defamation, breach of confidentiality agreements)
 Forced expression (i.e. in advertising; an adjudicator forcing an employer to write a
letter of reference; oath-taking etc.)
 Language requirements (i.e. sign laws in Quebec)
 Time, manner and place of expression (i.e. restrictions on right to protest)

Border control
 Prohibited material can be controlled at the border with customs officials serving as the
censors. The federal Customs Tariff Act used to prohibit the importation of “immoral
or indecent” books and magazines. This was struck down to be too vague.
o R v Butler (1992) - SCC held that the definition of “obscene” in the CC was a
sufficiently clear
Penal prohibition
 The most common restriction on speech is a prohibition coupled with a penal sanction.
(CC offences of perjury or counselling suicide.)Under the Canadian Human Rights Act
empowers a Tribunal to make someone cease from acting a certain way.
 Canadian Human Rights Act empowers a Tribunal to make someone cease from acting
a certain way.
 Canada v Taylor (1990) If this order has been made, it can made as an order for the
Federal Court and then disobedience is then punishable by contempt of court.
Civil prohibition 43.6(d)
 A prohibition on expression that is sanctioned by only a civil remedy is exemplified by
the tort of defamation or a contract to keep some matter confidential. The breach is not
a fine or imprisonment but it is an award for damages.
 RWDSU v Dolphin Delivery [1986] Where a civil obligation is created by the
common law (law of contract) there will be no Charter remedy because the Charter
does not apply to private parties.
Forced expression 43.6(e)
 RJR MacDonald v Canada (1995) Sometimes people are forced to make a statement.
–Made cigarette companies to sell cigarettes to display prescribed warnings of the
health dangers of smoking. This was a breach of s 2(b) on the “basis that the freedom
entails the right to say nothing or the right not to say certain things” the government
had failed to establish the.
 Canada v JTI Macdonald Corp (2007)- a new warning enforced by the Tobacco Act
was required to occupy 50% of the warning. It was found to have infringe s2(b) but
was justified by s1.
Language Requirement
 Ford v Quebec (1988)-The law did not restrict the content of signs or advertisements,
they could contain and message at all but the message had to be in the French
language. “it colors the content and meaning of expression”, “the freedom to express
 oneself in the language of one’s choice.
Search of press premises 43.6(g)
 CBC v Lessard [1991]- SCC reviewed the issue of search warrants to police to search
of news corporations. A film crew had video-taped a crime in progress. While
suggesting caution in issuing warrants for press premises, upheld the warrants. Placing
emphasis that the films had already been shown.
Time, manner and place 43.6(h)
 The least severe form of restriction on expression is the regulation on the time manner
or place of expression.
 Ramsden v Peterborough (1993)- non profit groups complained because a by-law
closed off obvious places to place posters. The SCC had taken this into account and
held the by law was too broad and interpreted in a narrow targeting legitimate concerns
“littering, aesthetic blight, traffic hazards, and impediments to persons repairing utility
poles.

Commercial Expression
 “Commercial expression” = expression that is designed to promote the sale of goods
and services
 There are two reasons why commercial expression ought to be protected under the
guarantee of freedom of expression in Canada and the US.
1. it does literally fall within the meaning of the word expression and it does make
a contribution to “the market place of ideas”.
2. it is very difficult to distinguish commercial speech from other kinds of speech
(political/economic/social) ideas are inherit in commercial speech.
 It is subject to much regulation because of the public need to forbid false or misleading
claims, to require warnings of danger, for the purposes of disclosure (i.e. food
ingredients) etc.

Why should commercial expression be protected under s. 2(b) of the Charter?

I. It conveys meaning
II. It Supports informed consumer choices
III. It upholds economic participation
IV. The Charter protects the speaker, not just the content.

 Ford v. Quebec (1988) – language case - Quebec sign laws which prohibited any
English signs; the SCC held that commercial expression is protected by s. 2(b) (and, in
this case, not saved by s. 1 – but s. 33 notwithstanding clause)  Law Allowed to
Stand
 Irwin Toy v. Quebec (1989) – advertising case – Quebec law prohibited all
commercial advertising directed at children under age 13 years; the SCC held that
commercial advertising was protected by s. 2(b) and the law was upheld under s. 1 by a
majority
 RJR-MacDonald v. Canada (1995) – advertising case - Tobacco advertising is
protected under s. 2(b), but can be restricted if justified under s. 1. The Court
emphasized that not all commercial expression has the same value, but it still
deserves protection.
 R. v. Guignard (2002) – signs case – Quebec by-law prohibited advertising signs and
billboards except in industrial zones and the case involved a protest sign against a
 company on a person’s lawn – infringed s. 2(b) and not saved by s. 1  Law Not
allowed to stand
 Prostitution Reference (1990) – prostitution is lawful in Canada but the Criminal
Code made it an offence to communicate in public for the purposes of engaging in
prostitution – infringed s. 2(b) but saved by s. 1 (note that the law was struck down
later in Canada v. Bedford (2013), but on the basis of s. 7, not s. 2(b))  Law Allowed
to stand

Picketing
 Picketing is the activity of members of a trade union on strike, who will assemble
outside a workplace often carrying signs.
 Dolphin Delivery (1986) – court injunction prohibiting members of a union from
picketing a workplace of a firm that was not their employer (“secondary picketing”)
 The court in B.C. found it to be a tort (an inducement to breach of contract) and the
injunction was issued to stop the tort – was this a breach of s. 2(b)?
o The SCC held that the Charter had no place between private parties, but in
obiter, the expression element of picketing was affirmed (though the
prohibition against secondary picketing would be saved by s. 1 to prevent the
spread of industrial conflict)
 Both commercial or political forms of expression are protected.
 Vancouver Courthouse Case (1988) picketing courts- without notice to the union
issued an injunction to prohibit the picketing of the courts. SCC turned down an
application to have injunction removed. There was a legal basis that their actions was a
criminal contempt for court. SCC held that the injunction was limiting the freedom
of s2(B) but was justified under s 1 “assuring unimpeded access to the courts”.
 Court orders or laws limiting picketing in order to avoid the spread of an industrial
dispute, or to facilitate access to a public facility, or to reduce the risk of violent
confrontations.

Hate Propaganda
 R. v. Keegstra (1990) – Hate propaganda is prohibited by the Criminal Code, which
makes it an offence to wilfully promote hatred against “any section of the public
distinguished by colour, race, religion or ethnic origin”; schoolteacher who made
anti-Semitic statements to his students and charged under the Criminal Code; breach of
s. 2(b); the Criminal Code provision was saved by s. 1 (by a slim majority)  Law
Allowed to Stand
o The court upheld the law under s1. Successful because it was specifically
directed at the willful promotion of hatred against identifiable groups and it
was easy to accept the prevention of harm caused by that activity was an
important objective.
 R. v. Zundel (1992) – crime in the Criminal Code of “spreading false news”;
pamphlet published denying the Holocaust; provision struck down as a violation of s.
2(b) that could not be saved by s. 1.  Law Not Allowed to Stand
o The false news offence could not be justified under s1. false news struck down
because Zundel did not specify any particular type of statement and did not
specify what type of injury to the public interest was contemplated. False news
was so broad it was hard to that it was difficult to identify an objective that
was sufficiently important to justify the limit on the freedom of expression.
 What explains the different outcome in these two cases?

 Saskatchewan v. Whatcott (2013) – claimant distributed four flyers containing

messages that condemned homosexuality; a tribunal issued an order preventing the
claimant from distributing the flyers based on the Human Rights Code which
prohibited publication of any representation that “exposes or tends to expose to hatred,
ridicules, belittles or otherwise affronts the dignity of any person or class of persons
based on a prohibited ground”
 The SCC found that the provision was a limit on freedom of expression; was it saved
by section 1?
o The SCC severed the words “ridicules, belittles, or otherwise affronts the
dignity” and just left in the words “hatred” – if the provision was just restricted
to hate speech, then it was saved by s. 1 (otherwise it would have been not
rationally connected to the objective of prohibiting discrimination and also not
overbroad and therefore proportionate)

o Key Takeaways:
1. Hate speech laws can limit expression
 Freedom of expression is not absolute.
 When expression crosses the line into promoting hatred, it can be
restricted — even if religiously motivated.
2. New definition of hate speech
 The Court refined what counts as “hatred” in human rights law:
 Hatred refers to expression that exposes a person or group to
detestation and vilification, not just offensiveness or repugnance.
 It’s not enough that speech is shocking or upsetting — it must actively
attempt to dehumanize or incite discrimination.
3. Intent is irrelevant
 The effect of the speech matters more than the intent behind it.
 Even if Whatcott believed he was morally justified, the impact on the
targeted group is what the law considers.

o Hate Speech Test

1. Does the expression expose a person or group to hatred? "Hatred" =
“extreme feelings of detestation and vilification”. The speech must
dehumanize, demonize, or reduce the group to subhuman status. It's not
enough that it is offensive, repugnant, or shocking.
 2. Is the expression likely to expose the group to hatred? Courts look at
how a reasonable person, in the context, would interpret the expression.
The focus is on the effect of the speech, not just the speaker’s intent.
3. Is the expression targeting a protected group? The speech must be
about an identifiable group protected under human rights legislation
(e.g., based on race, religion, sex, sexual orientation, etc.)
4. Is the expression exempt under fair comment or religious belief (in
limited cases)? Religious expression can be protected — but not if it
crosses into hate speech. The Court in Whatcott made clear: religious
belief doesn’t give a license to vilify.

Defamation
 Hill v. Church of Scientology (1995) – Crown attorney brought an action for
defamation against the Church of Scientology and its lawyer who, in a press
conference, had falsely claimed that the plaintiff breached a court order; SCC held
that false and injurious statements were outside the core values protected by s.
2(b) and were not deserving of much protection
o Grant v. Torstar Corp. (2009) – action against Toronto Star newspaper for an
article was successful at trial but overturned by SCC; defence of “responsible
communication on matters of public interest” which modified law on
defamation; overturned Hill on the issue of whether defamatory statements
were

Defence of “Responsible Communication”

 From Grant v. Torstar Corp. (2009) – SCC held that there are two elements to the
defence of “responsible communication”:
 The publication must be on a matter of “public interest”, which is for the judge to
decide; and
 The publication must be “responsible” (i.e. where the publisher exercised due
diligence in trying to verify the defamatory allegation), which is for the jury to decide.

Pornography
 R. v. Butler (1992) – accused operated a sex shop and was found guilty of various
charges of selling obscene material and possessing obscene material for sale which was
prohibited under the Criminal Code; SCC held that the prohibition of obscenity
offended s. 2(b) of the Charter because there should be no content-based restrictions
on expression; however, the Criminal Code provision was saved by s. 1
 R. v. Sharpe (2001) – accused challenged the constitutionality of the Criminal Code
offence of possession of child pornography (and raised the issue of fictional stories
written by the accused); the SCC held that the offence was a limit on s. 2(b) but was
upheld under s. 1

Access to Public Property

 Private property - the general rule (common law and civil law) is that the owner has
the power to determine who uses the property and for what purpose. The owner has the
power to determine the extent if at all that the property can be used as the location of
signs, placards, pickets, speeches, or other forms of expression.
 Public property - since s2(b) applies to governmental action –s2(b) is potentially
 applicable.
 Issue: does s. 2(b) confer a right to use public property as a forum of expression?
 Montreal v. 2952-1366 Quebec (2005) – a strip club in Montreal set up a loudspeaker
at its street entrance to broadcast what was happening in the club; the club was charged
with noise violations under a city by-law that prohibited noise produced by sound
equipment that could be heard outside a building
 Issue: was the by-law contrary to s. 2(b) of the Charter? (the noise originated on
private property, but was transmitted onto a public street which was prohibited by the
by-law); in other words, did s. 2(b) protect expression that was transmitted into a
public street?
 The SCC created a TEST for the application of s. 2(b) on Public Property:
o Is it a public place where one would expect constitutional protection for
expression on the basis that expression in the place does not conflict with the
purposes of s. 2(b), namely, democratic discourse, truth finding, and self-
fulfillment?
o To answer this question, the following factors should be considered:
(a) the historical or actual function of the place; and
(b) whether other aspects of the place suggest that expression within it
would undermine the values underlying free expression.
 See also Greater Vancouver Transportation Authority v. Canadian Federation of
Students (2009); Hogg, p. 43-48

Access to Courts
 Issue: When does freedom of the press come into conflict with the right of accused
persons to receive a fair trial?
 Dagenais v. CBC (1994) – injunction prohibiting the CBC from broadcasting a TV
program called “the Boys of St Vincent” (fictional program about abuse by Catholic
priests, while Catholic priests were on trial); SCC struck down injunction
(infringement of s. 2(b) not saved by s. 1)
 R. v. Mentuck (2001) – “Mr. Big” operation by undercover police officers; police
wanted the trial to be under a publication ban to protect ongoing undercover
operations; publication ban not upheld by SCC with respect to undercover operations
(but yes for undercover officer identities); SCC held that the Crown had to establish a
“serious risk to the proper administration of justice” and that “reasonable alternative
measures will not prevent risk” (minimal impairment); the Crown failed to establish
this for the undercover operations / police methods

Other reporting restriction cases:

 Canadian Newspapers Co. v. Canada (1988): upheld Criminal Code provision
mandating a ban on the publication of complainant’s name in sexual offence cases
where requested by the complainant or the prosecutor
 Edmonton Journal v. Alberta (1989): struck down Alberta statute prohibiting (with
limited exceptions) press reports of matrimonial litigation
 Toronto Star Newspapers (2010): upheld accused’s entitlement to automatic
publication ban of bail hearing
 Issue: Freedom of the press also includes the right of the press and the public to be
present in the court
 Re Southam and the Queen (No. 1) (1983) – Ontario Court of Appeal considered the
 law at the time that trials of children would be closed to the press and the general
public; the court found that the absolute ban was a restriction of s. 2(b) and could not
be saved by s. 1 – the law was eventually changed to allow hearings to be open subject
to judicial discretion to close the hearing (and the discretionary provision was upheld
under s. 1 in a subsequent case, Re Southam and the Queen (No. 2) (1986)

Access to Legislative Assembly

 Issue: Television cameras in a legislative chamber
 New Brunswick Broadcasting Co. v. Nova Scotia (1993) – SCC upheld the ban on
television cameras in a legislative chamber based on parliamentary privilege
 Note: that this was not a Charter case, even though one dissenting judge would have
held that the Charter applied and that s. 2(b) conferred a right of access to a legislative
assembly on the press and other media; the majority denied that the Charter applied at
all

Public Service
 Issue: Public servants engaging in partisan political activities – is this a breach of s.
2(b)?
 The underlying principle is the pursuit of political neutrality
 Osborne v. Canada (1991) – SCC held that the Public Service Employment Act
which prohibited federal public servants from engaging in work for or against a
candidate for election to Parliament etc. was a limit to the freedom of expression under
s. 2(b) and was not saved by s. 1 (over-inclusive so failed the least-drastic part of the
Oakes test)

Access to Government
 Issue: Positive rights
 NWAC v. Canada (1994) – funding for some aboriginal organizations but not to the
NWAC, was this a limit on freedom of expression? The SCC held that s. 2(b) does not
impose a positive duty on government to fund or ensure everyone has the same
“platform of expression”
 Baier v. Alberta (2007) – the SCC held that access to a “statutory platform” not
protected under s. 2(b)

Access to Government Documents

 Issue: exemptions in freedom of information legislation
 Ontario v. Criminal Lawyers’ Association (2010): Section 2(b) “guarantees freedom
of expression, but it does not guarantee access to all documents in government hands.
Access to documents in government hands is constitutionally protected only where it is
shown to be a necessary precondition of meaningful expression, does not encroach on
protected privileges, and is compatible with the function of the institution concerned.”

Freedom of Religion
Distribution of Powers
 Does the power to enact laws in relation to religion reside with the federal Parliament
or the provincial Legislatures?
o If criminal matter (i.e. Sunday observance laws) = federal Parliament (Big M
Drug Mart (1985))
o But recall that provincial Legislatures could enact Sunday closing laws for the
secular purpose of a retail pause for workers, as an element of “property and
civil rights” (R. v. Edward Books (1986))
o Power over the solemnization of marriages (which can have a religious
dimension) under s. 92(12) = provincial Legislatures
o Education, including the establishment of denominational schools under s.
93(3) = provincial Legislatures

Freedom of Conscience and Religion

Section 2(a) of the Charter: Fundamental Freedoms
2. Everyone has the following fundamental freedoms:
---
(a) Freedom of conscience and religion.
 Freedom of conscience and religion is not absolute
 Section 2(a) of the Charter is subject to Section. 1 (of course), which means that a
law that limits freedom of conscience and religion will be valid under s. 1 if it comes
within the s. 1 framework: “such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society”.
 Charter analysis is in Two Stages:
1. Ask, does the law (or action) limit freedom of conscience or religion?
1. If No End of the Inquiry
2. If Yes, does the law satisfy the standards of justification under s. 1 (i.e. is the law
saved by s. 1)?

Freedom of Conscience
 What is freedom of “conscience”?
o Protects systems of belief which are not theocentric and which might not be
characterized as religion (including non-belief, atheism and agnosticism)
 R. v. Morgentaler (1988) – SCC held that the regulation of abortion was a denial of
freedom of conscience, defined as “personal morality which is not founded in
religion” and as “conscientious beliefs which are not religiously motivated”.
 Mouvement laïque québécois v. Saguenay (2015) – the SCC struck down the
municipal practice (in a by-law) of Mayor saying a prayer to God at the beginning of
council proceedings

Freedom of Religion
 An early case: R. v. Big M Drug Mart (1985) – SCC struck down the Lord’s Day Act,
a federal statute largely prohibiting commercial activity on Sunday
 The majority of the SCC defined freedom of religion as follows:
o “The essence of the concept of freedom of religion is the right to entertain such
religious beliefs as a person chooses, the right to declare religious belief openly
and without fear or hindrance or reprisal, and the right to manifest religious
belief by worship and practice or by teaching and dissemination.”
  What counts and what doesn’t count as protected freedom of religion? Does it have to
be an established Religious system (Christianity, Islam)

Freedom of Religion -Sunday Observance

 R. v. Big M Drug Mart (1985) – the SCC found that the purpose of the Lord’s Day Act
(prohibiting commercial activity on Sunday) was “to compel observance of the
Christian Sabbath” – this purpose was not compatible with s. 2(a) of the Charter
 R. v. Edward Books and Art (1986) – Ontario’s Retail Business Holidays Act
prohibited commercial activity on Sundays, but the purpose was secular: providing a
common pause day for retail workers- However, the SCC found it still infringed s.
2(a) because the effect was to impose an economic burden on those retailers who
observed a sabbath day other than Sunday (note that the law was upheld under s. 1 of
the Charter)
 Peel v. Great Atlantic and Pacific Co. (1991) – amended Act expanding the scope of
the Sabbatarian exemption upheld as not even infringing s. 2(a) (so no need to look to
s. 1)

This freedom does protect:

 Donald v Hamilton Bd Education [1945]- refusing to salute the flag or sing the
national anthem
 Saumur v City of Quebec [1953] -distributing proselytizing tracts
 R v Harrold (1971)- chanting a mantra
 Walter v AG Alta [1969]-holding land communally

This freedom does not protect- religious groups in such practices as human sacrifice, or
refusals of school, or medical treatment of children.
 Young v Young (1993)-Harm to children- Father was not allowed to speak about
his Jehovah Witness religion to son because it caused fights with mother. SCC
held- the right to the freedom of religion did not guarantee any religious activity
that would not be in the best interests of the children.
 B.R v Children’s Aid Society (1995) Harm to children- parents did not want
blood transfusion but the Children’s Aid Society. Wards did it anyway. Court Held:
a breach of their s2(a) right but it was justified under s1. “a parents freedom of
religion does not include the imposition on the child of religious practices which
threatens the safety, health, or life of the child”

Freedom of Religion – constraints?

 Issue: If there is a right to manifest religious belief by worship and practice (Big M
Drug Mart (1985)), what about where these rights clash with the rights of others?
 The Court balances these rights, often using Section 1 and a contextual approach to ensure
fairness and proportionality
o Right to life, liberty and security of the person
o Equality rights
o Clash of religious rights
o Others?
Freedom of Religion -Blood Transfusions
 B.(R.) v. Children’s Aid Society (1995) - majority of the SCC found that the decision
of parents to prohibit doctors from giving a blood transfusion to their baby daughter
was protected by freedom of religion, because it was dictated by their beliefs as
Jehovah’s Witnesses (but saved by s. 1); note the dissent: there are intrinsic limits on
freedom of religion (ie where the health, safety and / or life of the child at stake)
 A.C. v. Manitoba (2009) – majority of SCC held that the power to override wishes of
child under 16 on a matter of religious belief does not violate s 2(a) because religious
convictions and child’s wishes taken into account under the (flexible) best-interests of
the child standard

Freedom of Religion -Hate Speech/Damaging Practices

 Ross v. New Brunswick School District No 15 (1996) – schoolteacher who publicly
disseminated the opinion that Christian civilization was being destroyed by an
international Jewish conspiracy – SCC found that this activity was protected by s.
2(a) (but his removal as a teacher justified under s. 1)
 Saskatchewan v. Whatcott (2013) – issue was distributing flyers condemning
homosexuality contrary to Saskatchewan’s Human Rights Code – what happened?
 Freedom of religion to be given a broad interpretation, unlimited by
consideration of the alleged impact of an allegedly religious practice on the rights
of other people
 How broad? See Syndicat Northcrest v. Amselem case…

Broad Right: Syndicat Northcrest v. Amselem (2004)

 Issue: condominium owners who were orthodox Jews claimed the right to build
temporary dwellings on the balconies of their condo apartments where they would live
for a nine-day period each year for the festival of Succot; the condo by-laws prohibited
constructions of any kind on the balconies
 SCC held the claimants had the right to erect the buildings on their balconies and
defined protected religious practices in VERY BROAD TERMS:
1. The practice need not be part of an established belief system
2. The practice need not even be a belief system shared by others (it can be
unique to the claimant)
o The Court clarified the distinction between religious beliefs and religious
practices, affirming that religious freedom under the Charter protects both.
It held that an individual’s sincere belief in a religious practice (even if it is not
universally accepted within the religion) is entitled to protection. The Court
found that the Amselem family’s desire to build a succah was an expression
of their religious beliefs, and their practice was protected, even if it was not a
universally recognized or required aspect of the Jewish faith.
o The Court emphasized that religious freedom is not confined to religious
institutions or public spaces but can extend to private property if the religious
practice does not disrupt the rights of others or breach reasonable laws and
regulations.
o The case also illustrated the role of the judiciary in balancing competing
rights, in this case, religious freedom vs. property rights. While the Supreme
Court ruled in favor of the religious practice, it underscored that the balance
 between different interests (in this case, the condominium's regulations and the
tenants’ religious rights) needs to be carefully considered. The decision did not
endorse absolute freedom in all contexts but recognized that religious freedom,
even in private spaces, is a protected right under the Charter.
o All that was required was that the claimant “sincerely believe” that the practice
was of “religious significance”
o The Test was wholly subjective

Test for s. 2(a) Infringement

An infringement of s.2(a) will be established where:
1. The claimant sincerely holds a belief or practice that has a nexus with
religion; and
2. The measure/provision at issue interferes with the claimant’s ability to
act in accordance with his or her religious beliefs in a manner that is
more than trivial or insubstantial

Defining Freedom of Religion

 Defined broadly, religion typically involves a particular and comprehensive system
of faith and worship. Religion also tends to involve the belief in a divine,
superhuman or controlling power. In essence, religion is about freely and deeply
held personal convictions or beliefs connected to an individual’s spiritual faith
and integrally linked to one’s self-definition and spiritual fulfillment, the
practices of which allow individuals to foster a connection with the divine or
with the subject or object of that spiritual faith.” (Syndicat Northcrest v.
Amselem (2004) at para. 39)

Fair Trial Rights R. v. N.S. (2012)

 R. v. N.S. (2012) – Can a sexual assault complainant wear a niqab (veil covering
the face except for the eyes) while testifying during a sexual assault case? Freedom
of religion vs. the right to make full answer and defence.
 Majority held: Just and proportionate balance must be struck between freedom of
religion and trial fairness, following Dagenais/Mentuck approach (recall these
cases about freedom of expression vs. trial fairness) – the trial judge decides
 Relevant considerations include importance of the practice to the complainant;
expert evidence regarding importance of seeing a witness’s face; broader societal
harms (including the reluctance of Muslim women to report sexual assault)
 Dissenting judges would have proposed a clear rule to resolve conflicting rights,
but disagreed on the rule

Reference re Same-Sex Marriage (2004)

 Federal Parliament can enact a bill legalizing same-sex marriage under power
over “marriage” in s. 91(26) of the Constitution Act, 1867
 But s. 2(a) of the Charter protects religious officials from being compelled by the
state to perform civil or religious same-sex marriages that are contrary to their
religious beliefs
 Note: Re Marriage Commissioners (2011) – there is a difference between
religious officials and civil officials appointed by the province to perform civil
marriages; the SCC majority held that the proposed legislation allowing “marriage
 commissioners” to refuse to solemnize any marriages contrary to their personal
religious beliefs violated s.15 and could not be justified under s.1 – (because they
are the only persons who can perform non-religious marriage ceremonies!)

Let’s Review: Test for a s. 2(a) Infringement

1. Claimant sincerely holds a belief or practice that has a nexus with religion
 Practice or belief in issue must have a nexus with religion
o Broad definition
o Wholly subjective (enough if personally felt connection with religion)
 Belief must be sincere
o Limited inquiry
o Past practice is not always relevant (can change your mind / beliefs –
see Syndicat Northcrest v. Amselem)

2. Measure/provision at issue interferes with the claimant’s ability to act in

accordance with his or her religious beliefs in a manner that is more than trivial
or insubstantial
 “Trivial or insubstantial” interference is interference that does not threaten
actual religious beliefs or conduct (Syndicat Northcrest v. Amselem)
 Requires objective proof of interference with religious practice or belief
(see S.L. v. Commission scolaire des Chenes (2012) at Hogg p. 42-21)

Section 1
 So s. 2(a) is a very broad right
 Many cases are resolved by reference to s. 1 of the Charter (the Oakes test)
 Let’s look at how these cases are decided…
 Multani v. Commission scolaire Marguerite-Bourgeoys (2006) – can a 13
year old Sikh boy wear a kirpan (ceremonial dagger) to public school in the
face of a school board regulation that prohibited weapons?
 SCC applied Amsalem and held that the regulation infringed the student’s
freedom of religion based on the student’s sincere belief that it was required by
his religion
 Not saved by s. 1; wholesale weapons ban failed on minimal impairment; SCC
ordered school to permit the kirpan in a wooden sheath and sewn into the
student’s clothing so that it could not be easily removed.
 Alberta v. Hutterian Brethren of Wilson Colony (2009) – a colony of the
Hutterian Brethren sought an exemption from the requirement of a driver’s
licence photo on religious grounds; the Hutterian do not believe in having their
photo taken
 SCC held that the Hutterian Brethren had a sincere religious belief that
prohibited photo taking and the belief was protected by s. 2(a) of the Charter
 But the photo requirement was justified under s. 1
 The SCC held that the photo requirement served an important purpose and did
not impose a severe burden on the claimants as they could use other means of
transport
 Polygamy Reference (2011) – British Columbia Supreme Court held that
polygamy was a constitutionally protected religious practice under s. 2(a)
 but the Criminal Code prohibition was justified under s. 1 due to evidence of
 harm to women

Division of Powers - Religion and Education

Constitution Act, 1867
Section 93: In and for each Province the Legislature may exclusively make Laws
in relation to Education, subject and according to the following Provisions:
(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with
respect to Denominational Schools which any Class of Persons have by Law in
the Province at the Union

Denominational Schools
 Section 2(a) requires a province to permit children to be educated outside the
secular public system, although the province must have the right to regulate
alternative schools (including denominational schools) to ensure a core
curriculum and adequate facilities and teaching standards are offered

Religion and Education

 S.L. v. Commission scolaire des Chenes (2012) – a course on religion in
public school that examines religion in a neutral way, not promoting any one
religion, does not infringe s. 2(a)
o Held: “The appellants had not proven that exposing their children to
a neutral presentation of various religions interfered with their ability to
pass on their own faith.”
o Affirmed the principle of state neutrality: The government can teach
about religion from a neutral, educational standpoint without violating
religious freedom.
o Key: Set a high threshold for proving a Section 2(a) violation —
there must be coercion or serious interference, not just discomfort or
disagreement.
 Adler v. Ontario (1996) - S.93(1) reflects a historic compromise
o A province’s failure to fund religious denomination schools that are not
recognized by s.93 is not a breach of religious freedom under s.2(a) (or
equality under s.15 of the Charter)
o Catholic separate school funding is protected by Section 93, which was
a foundational compromise when Canada was created — to protect
minority religious rights (mostly Roman Catholics in Protestant
provinces, and vice versa). Section 93 is not subject to the Charter, so
the asymmetrical funding is constitutionally entrenched.
o The Charter does not require equal funding for all religions in this
context.

Constitutional Remedies
  Issue: Constitutional rights are only meaningful if they can be enforced. So
how to enforce constitutional rights?
 Look at two main sections in the Constitution Act, 1982….
o Section 52(1)
o Section 24(1)

Supremacy Clause
Section 52(1) of the Constitution Act, 1982:
 The Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.
 Section 52(1) is known as the supremacy clause because it makes it clear that
laws must be consistent with the Constitution of Canada
 In other words, judges are allowed to review Canada’s laws for this purpose
 Since the Charter is part of the Constitution of Canada, it has an overriding effect
(any law that is inconsistent with the Charter is “of no force or effect”)

Remedy Clause
S. 24(1) of the Charter (in Part I of the Constitution Act, 1982):
 A person’s rights (e.g., freedom of expression, religion, equality) have been
violated by government action or decision. The court is trying to correct a Charter
breach and provide relief to the individual.
 Anyone whose rights and freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.
 S. 24(1) is the Charter’s own remedy clause, authorizing a court of competent
jurisdiction to award a remedy for breach of the Charter
 It is not an exclusive remedy because it complements s. 52(1), which is the
supremacy clause

Comparing s. 52(1) and s. 24(1)

s. 52(1) Supremacy Clause s. 24(1) Remedy clause

Applicable to the entire “Constitution of Only applies to breaches of
Canada”, including Charter rights Charter rights
Available to persons in circumstances Available only to the person whose
where their rights have not been infringed rights have been infringed (standing
(standing issue) issue)
May be applied by any court or tribunal May only be applied by a “court of
with power to decide questions of law competent jurisdiction”

Only authorizes a holding of invalidity Authorizes the award of a wide range

of remedies
No discretion to apply if law is found to be Confers discretion on the court as to
inconsistent whether to award a remedy
Supremacy Clause – Remedies available to courts
 S. 52(1) only allows a court to give a finding of invalidity if s. 52(1) applies and a law is
 inconsistent with the Charter

However, courts have developed a number of ways to hold that a law is invalid…
 Nullification
 Temporary validity
 Severance
 Reading in
 Reading down
 Constitutional exemption

Nullification
 Nullification is striking down (declaring invalid) the statute that is inconsistent with the
Constitution
 The effect is that it is as if the unconstitutional law did not exist

Temporary Validity
 Temporary validity is striking down a statute that is inconsistent with the
Constitution, but temporarily suspending the coming into force of the declaration of
invalidity
 The effect of this to grant a period of temporary validity to an unconstitutional statute
 Re Manitoba Language Rights (1985) – unusual case where the legislature failed to
enact laws in French and English which meant that technically every law on the book
was unconstitutional and of no force or effect – radical exercise of judicial power to
keep the laws in force in order to avoid a legal vacuum in the province while the
problem was fixed
 Seems like a radical remedy for rare cases; but this is not the only case / kind of case
where temporary validity has been used…
 Dixon v. British Columbia (1989) – provincial legislation prescribing electoral districts
for the province was unconstitutional; the court allowed the legislation to remain in
place for a time reasonably required to remedy the legislation (no deadline imposed)
 R. v. Brydges (1990) – 30 day “transition period” before enforcing duty on police to
advise all persons under arrest of the right to obtain legal aid
 R. v. Swain (1991) – SCC struck down Criminal Code provision requiring detention of a
person in a mental facility who had been acquitted of a crime on grounds of insanity; six-
month period of temporary validity

Temporary Validity – Schachter Guidelines

 Schachter v. Canada (1992) – a case about an under-inclusive statute (based on the s. 15
equality guarantee)
o Facts: Mr. Schachter was the biological father of a child and applied for parental
leave benefits under the Unemployment Insurance Act. The law at the time gave
parental leave benefits only to adoptive parents, not to biological fathers. Schachter
challenged this under Section 15 (equality rights), arguing the law discriminated
against biological fathers.
o Held: It agreed there was discrimination. BUT it refused to “read in” biological
fathers to the benefit provision. Instead, it said the entire provision (for adoptive
parents) was invalid, but suspended the declaration of invalidity for a time, so
Parliament could fix the law.
 Statute struck down but temporary invalidity so that the government could determine
whether to cancel or extend the benefits

SCC recognized that the remedy was extreme so held that suspended declarations of invalidity
limited to exceptional cases where immediate declaration of invalidity would:
 “pose a danger to the public” (e.g. Swain case (1991))
 “threaten the rule of law” (e.g. Manitoba Language case (1985))
 “result in the deprivation of benefits from deserving persons” (e.g. Schachter case
(1992))
 But the Schachter guidelines have largely been ignored by subsequent courts – some
examples:
 Canada v. Bedford (2013) – three prostitution-related offences in the Criminal Code were
invalid, but the declaration of invalidity was suspended for one year “considering all the
interests at stake”
 Carter v. Canada (2015) – Criminal Code prohibition of doctor-assisted suicide was
unconstitutional and the declaration of invalidity was suspended for one year

Severance
 Severance is holding that only part of the statute is inconsistent with the Constitution,
striking down only that part and severing it from the valid remainder
 It is the appropriate remedy when only part of the statute is held to be invalid and the
rest can independently survive
 This remedy is common, because it is unusual for a Charter breach to taint a statute in its
entirety
 Severance is a doctrine of “judicial restraint”
 See Tetreault-Gadoury v. Canada (1991) – another under-inclusive statute case
involving restricting unemployment insurance benefits to those under age 65; the Court
invoked severance to remove the age-65 bar from the Act

Reading In (Contentious Remedies)

 Reading in” means adding words to a statute that is inconsistent with the
Constitution so as to make the statute consistent with the Constitution and therefore
valid
 First outlined in the Schachter case as an option (i.e. the court could have decided to
“read in” the class of natural parents to the statutory provision benefiting adoptive
parents); the Court held that caution is called for in using this remedy, which should
only be appropriate in the “clearest of cases”, which seemed to mean cases where:
o The addition of the excluded class was consistent with the legislative objective
o There seemed to be little choice as to how to cure the constitutional defect
o The reading in would not involve a substantial change in the cost or nature of
the legislative scheme; and
o The alternative of striking down would be an inferior remedy
o It’s used when a law is under-inclusive—i.e., it provides a benefit or protection
but excludes a group in a way that violates the Charter.
o See Miron v. Trudel (1995) and Vriend v. Alberta (1998) = cases about the
remedy of extension (due to an under-inclusive statute)
 Miron: “If a law gives a benefit to some people, and wrongly excludes
others, we can extend the benefit to the excluded group.”
  Vriend v. Alberta (1998): Options – Strike Down the Law? “We don’t
have to strike down the whole law—we can just fix the unconstitutional
gap.” Reading In – Sexual Orientation
 Facts: In 1991, Vriend was fired because he was gay. He tried
to file a complaint under Alberta's Individual’s Rights Protection
Act (IRPA), but was denied because sexual orientation was not
include.
 It affirmed that government inaction (an omission) can still
violate the Charter.
 But the court felt justified in reading in on the basis that there
wouldn't have been another way to remedy the situation. The
other interesting angle in the Vriend case is the extent to which
the court decided that it had the power to remedy legislative
silence.
 In a circumstances where the court was worried that Alberta
would end up with no human rights legislation.
 Purpose of Legislation: The Court looked at the purpose of
Alberta’s Individual’s Rights Protection Act: to protect
individuals from discrimination. Leaving out sexual orientation
undermined that very purpose—by excluding an entire
vulnerable group from protection. So, adding rather than striking
down aligned with the Act's overall remedial and inclusive
goals.
 Section 15: The exclusion of sexual orientation was found to
violate Section 15(1) of the Charter (equality rights). Reading it
in corrected the discrimination, ensuring that the law met
constitutional requirements.
 Intent: They concluded that adding “sexual orientation” did not
distort the overall structure or scheme of the Act. The rest of the
law functioned just fine with the addition—so no legislative
overhaul was needed.
 Feasibility and Workability: The Court asked: Would the law
still work effectively if “sexual orientation” were included? Yes
— it was easy to read in the term without needing to rework the
rest of the statute. That made the remedy practical and
minimally intrusive.

Reading Down
 Reading down means interpreting a statute that could be interpreted as inconsistent
with the Constitution so that it is consistent with the Constitution
 Reading down is the appropriate remedy where the statute will bear two
interpretations: one which offends the Charter and one which does not
 Why is it called reading down?
 Note: that there is no holding of invalidity; the vindication of the Charter right is done
solely by interpretation

Constitutional Exemption
 A constitutional exemption is a remedy under Section 24(1) of the Charter where a law
 stays in force, but the court exempts a specific person from its effects because it
violates their rights.
 Constitutional exemption is creating an exemption from a statute that is partly
inconsistent with the Constitution so as to exclude from the statute the application that
would be inconsistent with the Constitution
 The advantage of this remedy is that it enables the court to uphold a law that is valid in
most of its applications by creating an exemption for those applications that would
offend the Charter
 Note: that is has been rejected in many cases e.g. R. v. Ferguson (2008) – no
constitutional exemptions for mandatory minimum sentences; if the sentence is
disproportionate, the remedy should be striking down the law (particularly where
Parliament had clearly intended to exclude judicial discretion)
o Held: The Supreme Court said NO — constitutional exemptions are not
available as a way around valid but unconstitutional laws. If a law violates the
Charter, the correct remedy is under Section 52(1) — strike down the law or
declare it invalid for everyone, not just for one person. In other words: you can't
leave an unconstitutional law standing and just carve out exceptions — that
undermines the rule of law and equality.
 Constitutional exemptions are still available, but only for unconstitutional
applications, not unconstitutional laws.

Remedy Clause under s. 24(1) of the Charter

S. 24(1) of the Charter (in Part I of the Constitution Act, 1982):
 Anyone whose rights and freedoms, as guaranteed by this Charter, have been infringed
or denied may apply to a court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
 Provides a remedy for government action that breaches the Charter
 Available only for breaches of the Charter
 It is not an exclusive remedy, because the supremacy clause in s. 52(1) might still
apply (this is the case where the appropriate remedy is striking the legislation); s. 24(1)
is only needed where a remedy provided by s. 52(1) is not needed or will not provide
satisfactory redress
Generally:
o Provides a remedy for government acts that violate an individual’s Charter
rights = personal remedy
o S. 52(1) provides a remedy for laws that violate a Charter (or other
constitutional) right = declaration of invalidity
o See R. v. Demers (2004) – Both remedies granted
 Section 24(1) – (Constitutional Exemption) Mr. Demers was granted
a personal remedy: The Court allowed the Review Board to consider
staying the proceedings in his case. Even though the law didn’t yet
provide for it, they made an exception for him to avoid unjust continued
detention.
 Section 52(1) – (Declaration of Invalidity) The Court also ruled that
the Criminal Code provision was unconstitutional for everyone. It gave
Parliament 12 months to amend the law to include a way to stay
proceedings for permanently unfit accused.
Standing
 Standing to apply for a remedy under s. 24(1) = anyone whose Charter rights have
been infringed or denied; i.e. where the applicant’s own rights have been infringed or
denied
 Standing to apply for a remedy under s. 52(1) = issue of unconstitutionality of
legislation can be raised by anyone, u (see Big M Drug Mart where corporation could
not hold a religious belief so could not obtain a remedy under s. 24(1), but could
defend a criminal charge on the basis of the law denying freedom of religion to
individuals)

Court of Competent Jurisdiction

 Section 24(1) remedies may be granted only be a “court of competent jurisdiction”
 Compare this to the S. 52(1) remedy of a declaration of invalidity which is available to
any court or tribunal that can decide questions of law

What is a court of competent jurisdiction?

 A superior court
 A trial court (such as provincial offences court), where the conduct of the trial is at
issue
 What is not a court of competent jurisdiction?
 A judge conducting a preliminary inquiry
 What about administrative tribunals?

Range of Remedies under s. 24(1)

 S. 24(1) authorizes “such remedy as the court considers just and appropriate in the
circumstances”
Remedies should:
 Meaningfully vindicate Charter rights and freedoms;
 Employ means that are legitimate within our constitutional framework;
 Be judicial ones which invoke the court’s proper powers;
 Be fair to the party against whom the remedy is made; and
 Remain flexible and responsive to the context of a case.
 Doucet-Boudreau v. Nova Scotia (2003)
o Facts: Section 23 of the Charter guarantees minority language educational
rights, such as the right of French-speaking parents in Nova Scotia to have
their children educated in French, where numbers warrant. A group of
Francophone parents in Nova Scotia sued the government for failing to provide
French-language schools in a timely manner.
o Held: The ruling broadened the scope of what courts can do when crafting
Charter remedies. The majority said courts can retain jurisdiction to make
sure their orders are actually carried out, especially where delays harm
rights.

Types of remedies:
o Declaration
 o Damages
o Costs
o Exclusion of evidence
o Supervision of court orders

Declaration
 A declaration is a remedy that declares the legal position, but does not actually
order the defendant to do anything
 A simple declaration that the government is in default of its Charter duties in
theory should be obeyed (but are times a’ changing??)
 See Canada v. Khadr (2010)

Damages
 Charter damages may be “appropriate and just” where they further the functions of
compensation, vindication, and deterrence (see Vancouver v. Ward (2010))

Costs
 The award of costs is sometimes an appropriate and just remedy for those Charter
breaches that cause inconvenience or delay to a litigant

Exclusion of Evidence
 There is a whole jurisprudence around exclusion of evidence under S. 24(2)
(where admission of the evidence would bring “the administration of justice into
disrepute”)
 Applies in criminal trials where evidence (like drugs, weapons, confessions) was
obtained through a Charter breach (usually s.8–14 rights).
o Was there a Charter breach?
o Was evidence obtained because of that breach?
o Would using the evidence harm public confidence in the justice system?
 But what about exclusion under S. 24(1)?
 Section 24(1) gives courts broad discretion to craft “appropriate and just” remedies.
So if there is no other effective way to protect a person’s rights, a court could order
exclusion of evidence under s. 24(1).
 This might come up outside of criminal trials, like in administrative or civil
proceedings, where s. 24(2) doesn’t apply directly, but Charter rights are still
engaged.
 Yes, see R. v. White (1999) – Hogg p. 40-44
o Facts: After a fatal car accident, the police arrived at the scene and
questioned White, the driver. As part of a routine investigation, police
asked who was driving, and White admitted that he was. This admission
was later used against him in court to establish he was the driver in a
criminal trial for hit and run. White had not yet been informed of his right
to counsel (s.10(b)), nor was he detained, so the questioning didn’t trigger
typical arrest rights at first.
o The Court excluded the statement.
o Held: The Court emphasized that compelled statements made under legal
obligation (like traffic laws) cannot later be used against someone in a
 criminal trial because that would violate fundamental justice under
Section 7.

Supervision of court orders

 Upheld as an appropriate and just remedy (5-4) in Doucet-Boudreau v. Nova
Scotia (Hogg p. 40-46)
 Why? Charter is supposed to receive a “large and liberal” construction, which
applied to the remedial power in s. 24(1) as well as to the substantive rights
themselves
 Sometimes, reporting requirements are necessary to ensure that the remedy is
effective
 See also Abdelrazik v. Canada (2009) (Hogg p. 40-48)
o Canada violated Abdelrazik’s Charter rights, especially s. 6(1) by
blocking his return home. The government’s conduct was "not only
unconstitutional, but also shocking." The Charter right to enter Canada is
absolute for citizens — it cannot be limited by policy or discretion. There
was no lawful excuse for preventing his return.

Administrative Tribunals
 Issue: Can administrative tribunals decide Charter issues?Answer: Yes.
Section 24(1)
o An administrative tribunal with authority to decide questions of law is a
court of competent jurisdiction unless legislation clearly withdrew Charter
issues from the tribunal’s jurisdiction
o R. v. Conway (2010) at Hogg p. 40-34
Section 52(1)
o A tribunal is bound to apply all the relevant law, including the Constitution.
If a tribunal finds a law invalid pursuant to s. 52(1), it is bound to treat the
law as having no force or effect (in cases where it is necessary to resolve
the constitutional issue in order to exercise the tribunal’s statutory
jurisdiction).
o However, an administrative tribunal does not have the power to make a
declaration of invalidity (because it cannot issue binding precedent) – see
Douglas/Kwantlen Faculty Association v. Douglas College (1990) and
Cuddy Chicks v. Ontario (199
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