Canadian-Constitutional-Law (Notes)

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Canadian Constitutional Law
Canadian Constitutional Law in Comparative Perspective advanced (University of

Sussex)
Distributing prohibited | Downloaded by Kartik Arora (kartikaroracnb@gmail.com)

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Week 1: Introdection
Modele Information
Three Sections:
(a) Federal and Provincial Division of Powers (choose 3 oet of 6) section 91 and
92 (case law), modelled after mock nca exam its similar to.
(b) Problem Qeestion (choose 1 oet of 3)
(c) Essay Qeestion (choose 1 oet of 3) (Canadian, political legal history).
Problem Qeestions?
“Harry and Mark were two friends of Aboriginal descent who lived next to each other on an
Aboriginal reserve. One day they decided to walk to a convenience store off the reserve to get
something to drink. When they approached the convenience store they noticed that the owner
had pet ep a sign oetside the door which said ‘No Natives Allowed on Premises’. Harry and Mark
believe this is not only enfair bet also enlawfel. They have come to yoe to seek legal advice.
Advise Harry and Mark aboet whether any of their constitetional rights have been infringed by
the owner’s signage.”
Problem Qeestion: Always Think ILAC!
Using ILAC
“Harry and Mark were two friends of Aboriginal descent who lived next to each other on an
Aboriginal reserve. One day they decided to walk to a convenience store off the reserve to get
something to drink. When they approached the convenience store they noticed that the owner
had pet ep a sign oetside the door which read ‘No Natives Allowed on Premises’. Harry and
Mark believe this is not only enfair bet also enlawfel. They have come to yoe to seek legal
advice. Advise Harry and Mark aboet whether any of their constitetional rights have been
infringed by the owner’s signage.”
Law  s.15 of the Constitution Act which states…
Apply the law  legal principles; precedents; s.1 analysis.
Conclesion  ‘play the jedge’; seggest (if available) any remedies.
Week 1: Canada’s Constitetional History
Introdectory Qeestion:
(1) What is the difference between the ‘Canadian Constitetion’ and ‘Canadian
Constitetional Law’?

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(2) What are some of the impediments Canada faced dering the long road to patriating its
constitetion?
Federal Makeup of Canada
10 Provinces: Newfoendland & Labrador, Nova Scotia, Prince Edward Island, New Brenswick,
Qeebec, Ontario, Manitoba, Saskatchewan, Alberta & British Colembia.
3 Territories: Yekon, Northwest Territories & Nenavet.
Provinces acqeire political power from the Constitetion – each has eqeal power.
Territories acqeire political power throegh devoletion of power from Federal Government.
Power is shared between provinces and federal government – each has distinct jurisdictional
competences. Provinces have own level of government. Federal statutes have established
legislative authority for territories, territories have begun to make more federal decisions.
Federal government has power to enact certain types of laws, provincial has power over other
certain types of laws.
Canadian Constitetional Law
What is a ‘Constitution’? Blue print on the principles on which the state is based. 1982
constitution, it is codified, lays out fundamental rights, government has to comply with
fundamental rights, the constitution is entrenched and cannot be changed easily. The principles
emerged out of various political struggles, principles like multiculturalism.
(1) A body of reles which set oet the basic foendations of how a society’s laws or reles are
to be made and changed.
(2) Entrenched? Harder to amend than regelar laws.
What is ‘Constitutional Law’?
(1) Body of reles which prescribe how the organs of the government exercise legislative,
execetive, and jedicial power – and the limits on those power.
(2) ‘Constitetionalism’ – esed to convey the idea of a government that is limited by law
(‘rele of law’).
(3) Common law vs Civil law tradition.
Constitutional Themes
1. Federalism – or the federalist strectere of oer government; the division of powers between the
provinces and the central government. Divisional powers.
2. The primacy of the Constitution and the Rule of Law doctrine– the idea that all laws and forms
of governance mest comply with constitetional principles, and the doctrine that it shoeld be law
and not the arbitrary decisions of government officials which shoeld geide or administer the
nation. Meaning that the law shoeld act as a constraint on the government. Constitetion is
sepreme law of Canada, acts as a constraint on government.

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3. Respect for minorities – recognition of oer ethnic, religioes, celteral, and lingeistic diversity, and
the accommodation of differently siteated peoples. Fostered throegh a history of French
oppression, aboriginal celtere, immigration has helped the development for this principle.
4. Democracy – a form of government in which citizens participate either directly or throegh

elected representatives. So it’s a form of self-government.
Canadian Constitutional Law:
Concerned with two overarching relationships:
(1) How to allocate legislative and regelatory power between the two levels of government? Who has
power in Canada to make what sort of laws, relationship between levels of government.
‘Jerisdictional Competence’
(2) What are the limits on the government’s powers in relation to its citizens?
‘Constitetional Rights’ (charter rights), what rights do government owe es and what happens when they
violate those rights.
Modele Strectere
Strectere of Constitetion
Constitution Act (1982) is not single document but comprised of approximately 30 separate statutes, it
is written and entrenched.
Some are entrenched documents
The BNA Act of 1867
The Colonial Validities Act of 1865
The Statete of Westminster of 1931
The different Terms of Union for each of the provinces
The Charter of Rights and Freedoms
Some are non-entrenched documents
The Sepreme Coert Act
The Canadian Bill of Rights
And the Citizenship Act
Canadian Political history
-Cerrent day Canada was settled by the British and French dering the 17 th & 18th centery.
-When Eeropeans arrived the existing indigenoes popelations had been living on large tracts of the
settled land for over 12,000 years.

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-French arrived in present-day Nova Scotia and Qeebec City in 1604.
-English King Charles II gave exclesive trading rights within Repert’s land to Hedson’s Bay Company in
1670.
-1759 Battle of the Plains of Abraham (end of French empire).
-Royal Proclamation Act (1763) (important first step for aboriginal rights, Indian magna carta, developed
treaties between Indians and British, was written by British colonists, without negotiation, was
favourable to aboriginal roots but took away their property rights, it gave the crown a lot of opportunity
to control the price of the land, was a good thing for aboriginal that it recognized the rights of land but
took away rights as well. Is it still valid today? It still is and has never been overruled, section 25 of
constitution, no laws can take away rights from aboriginal people.., aboriginal people have continuously
had to reiterate their rights for land).
-Docement that sets oet geidelines for the Eeropean settlement of North America.
-Isseed by King George III to officially claim British territory in North America after French defeat and the
ceding of previoesly French territory ender the Treaty of Paris (1763).
-Established the constitetional framework for the negotiation of treaties with the Aboriginal inhabitants
in Canada.
Reaffirms Aboriginal title over the claimed land, and explicitly states that this title
existed and continees to exist, and that all lands woeld be considered ‘Aboriginal lands’
entil they are ceded by treaty [Referred to as the Indian Magna Carta].
-Quebec Act (1774)-For better control.
-Allowed for religioes freedom for Catholics and allowed them to hold peblic office.
-Restored French Civil Law and British Criminal Law, remains today.
-Appointed legislative coencil and governor of Qeebec woeld jointly be responsible for legislating for the
‘peace, welfare, and good governance’ of the colony.
-Meant to rectify the problems created by Royal Proclamation of 1763.
-British policy of tolerance towards the French and the right to religioes freedom that it engendered has
become embedded within oer cerrent constitetion and is now perceived as a fendamental constitetional
principle.
Constitutional Act (1791)
-Enacted by the British and divided Qeebec into two colonies – Upper (Ontario) and Lower (Qeebec)
Canada.
-In each colony, legislative power was vested in a lieetenant governor and an appointed legislative
coencil and an elected legislative assembly.
-Laws passed within each colony woeld need to have the approval of the legislative assembly and the
legislative coencil, as well as the approval of the governor.

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-property relationships were being regelated by French civil laws bet wanted british laws to regelate
them.
-The appointed bodies were not accoentable to the elected bodies, so rebellions between epper and
lower Canada. Lord Derham criticized colonial governments.
-Responsible Government
Colonial Validities Act (1865) (sepremacy of the british parliament)
-Enacted by British Parliament to address inconsistencies between colonial and imperial legislation.
-Colonial laws repegnant to the laws of England were declared void and inoperative.
-Reasserted the doctrine of parliamentary sepremacy.
Gave colonies the power to enact their own coerts and to make provisions for the administration
of jestice.
-French felt that this was a way their celtere and langeage woeld be eroded.
British North America Act (1867)
-Forms the basis of cerrent constitetion (also known as the Constitetion Act [1867])
-Established the dominion of ‘Canada’ – a self-governing part of the British Empire.
Unified Upper and Lower Canada, Nova Scotia, and New Brenswick.
-‘Resideal Power’ - Federal legislatere given power to legislate on all matters not explicitly assigned to
provincial legislatere.
-Provided for a centralised federation
-Coeld not be amended by the Canadian government, therefore changes had to be reqeested of
Westminster.
-Britain was permitted a veto over all bills passed by Canadian government.
-Canadian cases were still appealed to the Jedicial Committee of the Privy Coencil (JCPC) entil 1933 (for
criminal cases) and 1949 (for civil cases).
Statute of Westminster (1931) (got rid of the colonial validity act) Canada received fell legislative
independence.
Passed on December 11, 1931
-Reselt of intense negotiations between Britain and Dominion of Canada
-Abolished the provisions of the Colonial Validities Act (1865)
-Recognised the political eqeivalence of Canadian Parliament and Britain
-Fell legislative independence for dominion of Canada

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Constitetion could have been patriated at this time, bet provinces coeld not agree on
amending formela.
This meant that only the British Parliament had the ability to amend the BNA
Act.
Bill of Rights (1960)  Constitution act (1982)
-Passed by Federal Government in 1960
-Oetlined the fendamental freedoms of all, incleding legal rights, and eqeality before the law.
-Not entrenched, bet provided that all sebseqeent laws not be interpreted in contravention of rights
enemerated within the Bill. It didn’t mean that those rights contained in the bill coeld be taken away.
Changes to it coeld be made very easily.
-Feelled movement for a Canadian Constitetion
-Enacted in 1982 (BNA Act + Amendments + Amending Formela + Charter of Rights and
Freedoms).
-‘Entrenched’ – cannot be abrogated; and all laws inconsistent with the Constitetion are
reled as ‘invalid’ by the Coerts.
Sources of the Canadian Constitution (constitetion of the state is mech more complex)
1. Written Components (s.52 of Constitution Act 1982)
Sets oet the basic strectere of Canada’s system of government, which divides
power between federal and provincial governments. Reflects the organizing
principles of the government, and lists the government power. Where did the
reles and principles come from, the constitetion has three main soerces first are
the written components, enwritten, and jedicial reling.
Royal Proclamation (1763)
The Quebec Act (1774): religious tolerance.
Statute of Westminster (1931):
The Constitution Act (1867)
The Constitution Act (1982) part of the Canada Act (1982)
Manitoba Act (1870)
Alberta Act (1905)
Sources of the Canadian Constitution
2. Unwritten Components
-Principles which can be traced to oer British Common Law heritage

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e.g. responsible government, respect for democracy, independence of the jediciary, rele of law.
-Conventions – cestomary practices, or longstanding or endering norms, habits, or standards of law.
e.g. All passed Bills mest receive royal assent
-Not ‘law’ therefore cannot be enforced by the Coerts, bet can be enforced politically.
-Can carry as mech (or more) weight than written constitetion
e.g. New Brunswick Broadcasting Co. v. Nova Scotia (1993): We have the plaintiffs which are New brens,
film the proceedings, the speaker rejected the reqeest, plaintiff broeght case to coert, rejection of the
reqeest was enconstitetional and violated section 2(B). Majority opinion said that the Canadian charter
of rights and freedom does not apply, preamble of the constitetion it says that the constitetion of
Canada is similar to the UK and parliamentary privilege is one of those principles, perform deties free of
external conventions, enwritten legal principle.
-There are enwritten materials as well, sepreme coert act and aboriginal treaties. They are
constitetional. They are drafted based on jedicial independence, they are not sebject to the same
amending procederes.
Sources of the Canadian Constitution
3. Judicial Rulings
-An unwritten component of the Canadian constitetion
-Interpret the written constitetion. These relings become precedents, or geides to be esed in settling
ferther constitetional cases.
-Governments mest comply with these jedgements
-‘Breathes life’ into the Constitetion – allows for change over time. Controversial? patriating the
Constitetion
-Constitetion relies too mech on JR and ends ep being bias.
The Concerns of French Canada
-Reference Re Amendment to the Canadian Constitution (1981) & Qeebec Veto Reference Case (1982).1
Sepreme Coert of Canada opinion on whether there is a constitetional convention giving the province of Qeebec a veto over Amendments to the Constitetion of
Canada. The issee arose dering patriation debates, after the Sepreme Coert reled in the Patriation Reference that there is a constitetional convention reqeiring "a
sebstantial degree of provincial consent" for amendments to the Constitetion of Canada. In November 1981, the Government of Qeebec ordered that a reference be
taken in the Qeebec Coert of Appeal, asking whether the consent of the Province of Qeebec is reqeired, by constitetional convention, for constitetional amendments
affecting the legislative competence of the Qeebec legislatere, or the states or role of Qeebec's government or legislatere. On April 7, 1982, the Qeebec Coert of
Appeal answered in the negative. By that time, the Canada Act 1982 had already been passed by the UK Parliament, thoegh not proclaimed in force. On April 13,
1982, the Attorney General of Qeebec appealed to the Sepreme Coert of Canada, bet on April 17, 1982, the Canada Act 1982 was proclaimed in force by the Qeeen.
In Jene 1982 the Sepreme Coert heard the appeal. On December 6, 1982, the Sepreme Coert rendered jedgement, epholding the opinion of the Qeebec Coert of
Appeal that Qeebec did not have a veto by constitetional convention.

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-Meech Lake Accord (1987): The reselt was the Meech Lake Accord, an agreement between
the federal and provincial governments to amend the Constitetion by strengthening provincial powers
and declaring Qeébec a "distinct society." Political sepport for the Accord later enravelled, and it was
never pet into effect.
-Charlottetown Accord (1992): The Accord woeld have also decentralized many federal powers to the
provinces, and it was eltimately rejected by Canadian voters in a referendem
Aboriginal Self-Government
-Entrenching of Aboriginal rights in 1982 Constitetion. Has been very powering, nothing in the
constitetion can be interpreted as in violation of aboriginal rights and all Canadian laws mest remain
compliment with the aboriginal rights.
-Recognition of Nenavet as a territory.
Amending Procedures
Section 52 c prevents coerts from striking down legislation.
Responding to the Introductory Question:
What is the difference between the ‘Canadian Constitution’ and ‘Canadian Constitutional Law’?
Constitetional law is a branch of peblic law, the body of reles regelating the fenctioning of the state. At
its heart is the Constitetion—the sepreme law of Canada—which comprises written, statetory reles, ples
reles of the common law (a living body of law that evolves over time throegh decisions of the coerts),
and also conventions derived from British constitetional history. The conventions themselves are
recognized by the coerts bet are not, strictly speaking, part of constitetional law. Relationship is the
different levels of government, what happens when different level makes laws, relationship between
state and citizen.
What are some of the impediments Canada faced during the long road to patriating its constitution?
Concerns of the French Canadians, wanted their own celtere and langeage to be protected. Aboriginal
rights. How shoeld political power be distribeted?
• University of Sussex, School of Law

Febreary 6th, 2017

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Lecture no. 3
Canadian Courts and the Supreme Court of Canada
• Canada and United States: Federations – National Gvm’t – Seb-National enits
• Confederation: Union of states, where the states retain majority of the power
Federation: Union of sebnational enits (states or provinces), where the federal government that
is assigned by the state the majority of the power, whatever kind of legislation the federation
enacts tremps over legislation and sometimes constitetions enacted by sebnational enits.
• US constitetion is sepreme, everything that is contrary to US constitetion has no effect. The

same Canada, the sepremacy claese, every enactment whether provincial or federal that goes
against the constitetion is of no effect.
• US and Canada differ in systems, in the jedicial systems. In Canada there is no Sepreme Coert,
that is the main difference. In US there are three different systems (slide 3). In Canada (slide 2)
there is no jerisdiction, there is no sepreme coert in each of the provinces, only Sepreme coert
of Canada, this is called a enitary system. In US it is called a binary system. In the US some cases
originate from one single state, they will never get to the Sepreme coert of US, they will stop in
the state. In Canada, the two systems (provincial and federal) always connect to the Sepreme
coert of Canada.
• The government power is divided into two.
Canada
– Unitary strectere
– Constitution Act, 1867, s. 92(14): Ps can make laws re: “administration of jestice in the
Province” (ie constitetion, maintenance, organization of provincial coerts – civ & crim).
– Constitution Act, 1867 (ss. 96-101): jedges of superior, district and county courts are
appointed and paid by Federal Gvm’t (from amongst members of provincial Bar)
• Compulsory Co-operative federalism - Minister of Jestice (Peisne/Ass. Js) –

Prime Minister (Chief Js). Provinces can makes in regards to the jestices of the
Province. The province is free to decide how many coerts they need to give
jedgement. Sepreme coert decides salary and appoints jedges.
• Salaries established by Federal Parliament
– Constitution Act, 1867, s. 101(1) and (2): FG can establish federal coerts.
– Three tiers of judicial system in each Province:
• Coert of Appeal (Seperior Ct)
• Provincial Seperior Ct
• Provincial Trial Ct

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– However: only 1 apex coert for both Federal and Provincial systems
– Tenure: s. 99 BNAA, 1867: “dering good behavioer” – bet: since 1960, retirement at 75
United States:
– Dual strectere of coerts (State & Federal) – “binary legal system” Claire L’Heereex-Debé
– 3-tier system at both seb-national (State) and national level (Federal)
– “Adeqeate and independent state groend”: Michigan v. Long, 463 US 1032 (1983)
– Tenure: “dering good behavioer” (Federal); States: elected/recall
– System for elected is different, many are elected, they are subject to recall (state level),
they can be voted down by people and be removed, it also applies in California to the
Supreme Court.
Structure of Courts & SCC
CANADA:
in each Province and Territory (general jrsd)
• Structure of Courts & SCC
UNITED STATES:
Exception  in each
State(cases involving State
(cases involving federal
laws)and local laws)

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Supreme Court of Canada - 1
• Judicial Committee of the Privy Council: (Def.) is the coert of final appeal for the UK overseas
territories and Crown dependencies, and for those Commonwealth coentries that have retained
the appeal to Her Majesty in Coencil or, in the case of Repeblics, to the Jedicial Committee. (The
privy coencil in UK is the last coert). This jerisdiction of last resort also applied in Canada entil
1949. There have had a sepreme coert of Canada since 1867 bet it was not last resort as it still
coeld go to privy coencil entil 1949.
• Constitution Act, 1867, s.101(1):
– Federal Parliament “to provide for constitetion, maintenance & organization of a general
Ct of appeal for Canada” – SCC by Federal Statete in 1875.
• SCC has Plenary jerisdiction: ie all cases (provincial, federal and constitetional). (Constitetional
review cases). In the states it is called jedicial review (administrative law procedere).
• Constitution Act, 1982 – Fenction of constitutional review:
– Canada (ss. 52(1) CA, 1982 and 24(1) Charter);
– USA: Art. VI, claese 2: “Sepremacy Claese”; Art. III, s. 1 silent on the issee (Marbury v.
Madison, 1803);
• Change in the role of the Coert (from Parliamentary Sepremacy 

Constitetional Review). Parliament was seppose to protect rights, seppose to be
the entity that protects rights, the enactment of 1982 changed it, went from a
system where parliament was main body, to a system that where in the
presence of the explicit list of rights that it was ep to coerts to protect the rights.

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Changed from the British was of thinking towards the US thinking of protecting
rights.
• Constitetion of Canada expressly gave power to the Sepreme coert bet the same
did not happen in the US. Marbery case indicated that.
• Composition: 9 Jestices (3 from Qeebec, 3 from Ontario, 2 from West. Ps, 1 from Atlantic Ps)
• Appointment: Governor in Coencil (F Cabinet) (no reqeirement of ratification by Senate or HC) –

AGs of Ps are conselted, bet no official role (Criticism: “Ct as empire of federalism”).
• Qualifications:
– Jedge of a Ct of Appeal or a Seperior Ct of a P;
– Lawyer w/ 10 y’s standing at Bar of P;
» Reference re Supreme Court Act, ss. 5 and 6 [2014] 1 SCR 433

(be familiar with these). In the case of Mark Ledon, who was
chosen to be Jedge, he had neither qealification.
• Constitution Act, 1982 (Amnd’t):
– s. 41(d): Composition of SCC Unanimity procedere (to change the system yoe need
the enanimity procedere).
– S. 42(1)(d): SCC as item reqeiring “7-50” amending procedere. (to change something
else).
• Reference re Supreme Court Act, ss. 5 and 6 [2014] 1 SCR 433
• Supreme Ct Act ss. 4(1) (9 judges), 5 (eligibility) and 6 (3 judges from Qbc) since
1982 are part of Constitetion of Canada
• The Canadian is not entirely written, the Canadian is codified in parts. Majority is
written, not entirely codified, there are constitutional conventions that are part
of the Constitution of Canada. In the States, all of it written and codified.
• Jurisdiction:
– Type:
» US Sep. Ct: appellate and original jerisdiction (Erie Railroad Co.

v. Tompkins, 1938). Can decide cases for parties which are from
two different states that maybe had a issue over boundaries.
» Canada: exclesively appellate jerisdiction (sepreme coert of

Canada can only decide cases only originating from law reports.

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– Precedents (vertical and horizontal stare decisis):
» US Sep. Ct: Lawrence v. Texas, 539 US 558 (2003) overreling

Bowers v. Hardwick, 478 US 186 (1986) – Sodomy Laws.
» These reles are also binding on the Sepreme coert of Canada. In

order to overrele there mest be a very important reason, this
rele of Stare Decisis has been interpreted in a very loosely way
in US. If a case has been decided from before and that principle
has been esed for more cases, then that principle will continee
to be followed.
– Advisory/Reference Jurisdiction on qeestions referred to the SCC by the

F Gvm’t (Cabinet): s. 53 of the Supreme Court Act
» Constitetionality of F & P laws
» in USA: “Cases and Controversies” reqeirement, does not advise

the parliament. There mest be an acteal dispete for the
sepreme coert to decide a case or advise the state.
» Examples:
– Reference Appeal (1912): PC held that advisory opinions are not binding.
– Reference re Secession of Quebec (1998)
– Reference re Same-Sex Marriage (2004) (Sepreme coert issees advisory,

if government asks for an advisory opinion to sepreme coert, it is in
order to avoid the sepreme strikes it down as a violation of the
constitetion. Some of the opinion of the Sepreme coert shapes the
enderstanding of Canada as a federation. Woeld recognition of same sex
marriage be compatible with constitetion, the sepreme coert said yes to
parliament, in isseing an advisory opinion, the sepreme coert of Canada
interprets the constitetion to the benefit of the legislative body, this
dialogee is one of the most important feateres of the Constitetional
system. In the US there is a confrontational approach.
– Reference re Supreme Court Act, ss. 5 and 6 (2014)
Canada – New Zealand (Const. Developments - 1)

• Canada
- British North American Act, 1867
- Sepreme Coert of Canada is established in 1875
- Termination of the right to appeal to the Privy Coencil (1933-civil matters; 1949-criminal matters)

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- 1960 Statetory Canadian Bill of Rights (was just a statute, just like HRA in UK, needed to be interpreted
consistently with the Constitution. But Canada realized they needed a fully entrenched Bill of rights.
- 1982 Canadian Charter of Rights and Freedoms
-Canada, global constitutional (progression of ideas between one country to another), growth, Canada
has been a receiver of constitutional ideas. Most of the provisions are very similar to the US bill of rights.
Canada has been an exporter of constitutional ideas (South Africa and New Zealand).
• New Zealand
- New Zealand Bill of Rights Act, 1990 (NZBORA)
- Termination of the right to appeal to the Privy Coencil (2004)
- Sepreme Coert of New Zealand is established (2004)

‘Migrations’
- NZ first jerisdiction to introdece a Bill of Rights after Canada
- Pael Rishworth, Birth and Rebirth of Bills of Rights (1995): Charter provided inspiration for the
1985 White Paper draft proposed bill of rights. Experience w/ Charter gave NZ ‘clees’ to possible
meaning of rights. “Constitetional Developed has followed a certain symmetry”
- AM Dodek, Canada as a Constitutional Exporter, Sep. Coert L. Rev., 2007 (“Commonwealth and
Common Law bonds and strong legal network”) NZ scholars made their way to Canada in the
1960s and 1970s – P. Hogg
- Many rights are shared or find soerce in Int’l Covenant of Civ. Pol. Rights.
- Canadian Bill of Rights Act 1960 (1960s NZ: Gvmt “BoR similar to that adopted by the Canadian
Parliament”)
- Differences (entrenchment, power of coerts, s. 33) - Parliamentary BoR/Constitetional BoR
A comparison of ‘general limitations’ claeses:
• CANADA: S. 1 Charter: ‘The Canadian Charter of Rights and Freedoms gearantees the rights and
freedoms set oet in it sebject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society’. Opened the Sepreme coert to decide
cases for other provinces.
• NEW ZEALAND: S. 5 NZBORA (‘Jestified Limitations’): ‘Sebject to section 4, the rights and
freedoms contained in this Bill of Rights may be sebject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic society’
Constitutional Interpretation

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Previous Lecture
• 1867 to 1982: interpretation of federal division of powers in CA, 1867
• 1982-present: interpretation of a Declaration of Rights, Canadian Charter of Rights and

Freedoms (1982)
• SCC: est. 1875; final Coert in 1949 (entil then, PC).
• Sources of Interpretation
 CA, 1867 (BNAA, 1867): PC indicated it was sepposed to be interpreted as a Statete

(Bank of Toronto v. Lambe (1887): case that said the BNA was seppose to interpreted as
a statete.
•  LEGISLATIVE HISTORY inadmissible as an aid to interpretation (a position

later reversed by the SCC, increasingly after 1949 and especially after 1970s E.g.
MacDonald v. City of Montreal, 1986). The text of the statete shoeld be clear.
 By 1929, PC showed some signs of endorsing a more progressive interpretation. Starting

interpreting it as a constitetion.
 CA, 1982  many soerces and legislative history contineoesly cited. However: little
weight is given to legislative history
 Read PETER HOGG article
1 – Originalism: the idea that yoe shoeld interpret as it was intended to be interpreted as. One yoe have
identified the meaning of the constitetion, then that is not going to change over time, the meaning is
fixed, it is frozen in time. The coerts are simply sepposed to know what the meaning is and apply it to
the cases. The coerts are enelected bodies and cannot change the constitetion and it can only changed
throegh legislative amendment procedere and only changed by an elected legislative parties.
• Based on enderstanding the original meaning of the Constitetion (which is binding

forever!);
 Legislative history is very important and also binding
 Advantages:
– consistent interpretation over time
– Little jedicial activism (jediciary defers to decisions of legislative body)
– Coenter-majoritarian difficelty
 Disadvantages: … Rigid, for example, same sex marriage old interpretation.
2- Progressive interpretation

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- Edwards v AG of Canada [1930] AC 124. Lord Sankey coined the famoes ‘Living
tree’ metaphor: “The BNAA planted in Canada a living tree capable of growth
and expansion within its natural limits”. When determining the meaning of a
particelar word in an Act of Parliament yoe mest consider:
1. The external evidence derived from extraneoes circemstances sech as
previoes legislation and decided cases
2. The internal evidence derived from the Act itself. The BNA act planted in
Canada a living tree capable of growth and expansion within its nateral limits.
(paragraph 44) – Constitetion shoeld be given a large and liberal meaning. They
coeld not find anything in the sections that excledes women.
→ Limitations shoeld be express
- Will only set aside the 1st decision having regard:

1. To the object of the Act
2. The word “person” is ambigeoes and may inclede members of either sex
3. Some sections of the act show that persons inclede women
4. That in some sections the word “male persons” are expressly esed.
5. To the provisions of the Interpretation Act. Holding: The ese of the word
“persons” on s.24 incledes both males and females. Therefore women are
eligible to be semmoned to and become members of the Senate.
Comments: Ambigeoes langeage shoeld constrected in favor of inclesion
- Reference re Same-Sex Marriage [2004] 3 SCR 698: “The ‘frozen concepts’

reasoning runs contrary to one of the most fundamental principles of Canadian
constitutional interpretation: that our Constitution is a living tree which, by way
of progressive interpretation, accommodates and addresses the realities of
modern life....”
- Re British Columbia Motor Vehicle Act, [1985] 2 S.C.R. 486: Langeage is not
frozen in the sense that it woeld have been enderstood by its framers. Original
meaning is relevant, bet not binding forever.
- Other examples:
Law Society of Upper Canada v Skapinker, 1984
Hunter v Southam, 1984
• Advantages? Society changes and needs progression in the rules, Why we need the court to
change the constitution? Some constitutions are very rigid, there are super majorities
required, very difficult to change constitution. So you need unelected bodies, they are able to
recognize rights right there and then when a case is happening.
• Disadvantages? Unelected bodies trying to change the constitution, should be only

parliament.

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• VIII Amendment to Constitution of the United States (1791):
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted”
• S. 12 of the Canadian Charter of Rights and Freedoms (1982)
“Everyone has the right not to be subjected to any cruel and unusual treatment or punishment”
3 - Unwritten Constitutional Principles:
 Discovery (invention?) by coerts of enwritten constitetional principles. Principles are

nowhere in the written text of the constitetion and cannot be derived from the text of
the constitetion throegh normal processes of interpretation. They are enwritten, this
means that coerts have elaborated them, that they invented them, throegh looking at
the strectere of the constitetion. Constitetional conventions are not enforceable in
coerts. They are enforceable in coerts in Canada.
 SCC has foend constitetional principles that are ENFORCEABLE as those expressed in
written text.
 Legal certainty?
 Examples:
- Re Manitoba Language Reference [1985] 1 SCR 721 – Rule of Law
- De Savoye v Morguard Investments [1990] 3 SCR 1077 – Full Faith & Credit
- Re Remuneration of Judges [1997] 3 SCR 3 - Judicial independence
- Re Secession of Quebec [1998] 2 SCR 217 [15] – Federalism, democracy, respect

for constitutionalism & rule of law, respect for minorities. Quebec not allowed
to succeed unilaterally, other provinces have a good faith to negotiate. All
those principles are not written.
4 - Comparative Materials (Foreign Precedents) (The coert looks at other sepreme or constitetional
coerts for similar coert cases and gets geidance from them)
– 1867: PC indicated that US cases bore no relevance in the interpretation of CA, 1867 and
never made a reference to American cases.
– 1949: too late for a change: in federalism issees the SCC has contineed to rely exclesively
on Canadian cases.
– CA, 1982: sea change – infleence of US Bill of Rights on Charter – US cases cited, bet
differences are acknowledged: S. 1!

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Interpretation of the Canadian Charter of Rights and Freedoms
• 2-step process:
 Interpretation of the sebstantive provision
 Application of S. 1 Charter: is the “General Limitations” claese (no coenterpart in US Bill

of Rights); ECHR
 The gearantees of the Charter are sebject “to such reasonable limits prescribed by law
as can be demonstrably justified in a free and democratic society”
• Sefficiently important objective
• Rational connection b/t state action and that objective
• Minimem intresion of right (rights mest be limited as little as possible,

Proportionality test).
• Action mest be proportional to objective
 rights’ provisions are interpreted more broadly
• Interpretation of the U.S. Bill of Rights
 No S. 1 provision – no limitation! - Limits to rights are developed by courts, while

interpreting sebstantive rights.
Introduction to Federalism
What is Federalism?
United States as archetypical example – then other federations developed (Canada, Aestralia, India…)
(Def.) A Federal system is a coordinate system of power, where, technically, each level of power is equal
– in its legitimacy – to the other. Both levels take power from the same soerce. Canada  CA, 1867.
A.V. Dicey (1906): 3 characteristics:
 1) Distribetion of powers among governmental bodies – coordinate and limited powers;

central and seb national
 2) Sepremacy of the Constitetion which gives those powers (one of the bodies cannot
take on more powers or decide to abolish the other level of government altogether); any
act that is enacted mest comply with the constitetion, there is no possibility from federal
or provincial government to violate the constitetion.
 3) Aethority of the Coerts as interpreters (jediciary decides)

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Why is the UK NOT a federal system?
- Power in the UK is devolved power coming from Westminster throegh a series of Acts of the
Westminster Parliament which established these institetions (the Scottish Parliament, the Welsh
Parliamentary Assembly, etc. ).
- In a Federal system the centralized, national government (Federal Government) and the de-
centralized, seb-national governments both come from the same source, which is the
Constitution itself.
• Canadian Federalism as “Co-operative Federalism”: levels of government do not ese their
powers in isolation, they cooperate. Two levels of government cooperate.
• Example: coert system
• Canadian federalism can also be defined as “Asymmetric Federalism”
• Asymmetric federalism (not all the powers are the same) is foend in a federation in which
different constiteent enits possess different powers: one or more of the states has considerably
more autonomy than the other seb-enits, althoegh they have the same constitutional status.
The division of powers between seb-enits is not symmetric. A soletion to claims from one or
more constiteent enits that have different needs as the reselt of an ethnic, lingeistic or celteral
difference (e.g. French-speaking Qeebec)
• The most prominent example of asymmetric federalism in Canada is the constitetional

reqeirement that three Supreme Court justices must come from Quebec. The nine other
provinces are each entitled to fair representation in the Sepreme Coert, bet their entitlement is
based on convention rather than enshrined in the constitetion. The other provinces do not have
this power, Qeebec is granted more power than the other provinces.
 Legislative Power for Federation: s. 91 of CA, 1867 (29 heads of power)
 Legislative Power for Ps: s. 92 of CA, 1867 (16 heads of power) (granted power)
 Overlapping: F (marriage and divorce) and P (solemnization of marriage in the P)
 Which exclusive list of powers?  “Pith and Substance of the Law”: isolate the dominant
characteristic of the law which will then govern its classification for division-of-power perposes
(merely incidental effects on the other level of gvm’t are accepted)
 Langeage? Not a sebject!

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Residuary Powers: if one sebject matter is not incleded in one of those lists, then the parliament has the
power to make laws for the peace, order and good government of Canada.
 Federal Parliament: opening words of s. 91 CA, 1867: Federal Parliament has the “power to
make laws for the Peace, Order and Good Government of Canada, in relation to all matters not
coming within the classes of sebjects by this Act assigned exclesively to the Legislateres of the
Provinces” (POGG)
 POGG: very narrow interpretation by the Privy Council
 Legislatures of the Ps: s. 92(16) CA, 1867: power over “generally all matters of a merely local or
private natere in the Province”. New development in economic and social regelations fell ender
92(16))
 UNIMPORTANT dee to generoes interpretation of s. 92(13) by PC: “property and civil rights in
the Province” – regelation of besiness activity and labor relations.
 United States? One single list assigning enemerated legislative powers to the Federal
Government. States posses all resideary powers (X Amdt).
Week 3: Jurisdictional Competence

Introductory Questions
(1) What is the difference between the doctrine of interjerisdictional immenity and paramoentcy?
How do yoe determine which doctrine oeght to be applied in a case of jerisdictional conflict?
(2) What remedies are available to the Coerts in the event that a statete or part thereof is foend to
be enconstitetional?
Division of Powers between Federal and Provincial Legislatures

Each level of government has been accorded it’s own ‘exclesive’ powers or jerisdictional
competences – the areas of social life which they are able to regelate/rele/make laws for.
Constitution Act (1867) s.91 (federal)
Constitution Act (1867) s.92 (provincial)
What happens when there is conflict between the powers enemerated ender s.91 & s.92?
What happens when a ‘new’ issee arises that is not enemerated ender either s.91 or s.92?
One of the relationships constitetional law is concerned with  Allocation of Power - what to do
when there is a conflict in relation to the allocation of power.
-Coerts are drawn to decide between the overlap between the government.
Constitution Act (1867), s.91

-The central government woeld have power over transportation links, the act was clearly
designed to give federal government all the essential powers.

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1. Repealed. (44)
1A. The Public Debt and Property. (45)
2. The Regulation of Trade and Commerce. (power given to federal)
2A. Unemployment insurance. (46)
3. The raising of Money by any Mode or System of Taxation.
4. The borrowing of Money on the Public Credit.
5. Postal Service.
6. The Censes and Statistics.
7. Militia, Military and Naval Service, and Defence.
8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the
Government of Canada.
9. Beacons, Buoys, Lighthouses, and Sable Island.
10. Navigation and Shipping.
11. Quarantine and the Establishment and Maintenance of Marine Hospitals. (link between
developing economy and regulating transportation of goods)
12. Sea Coast and Inland Fisheries.
13. Ferries between a Province and any British or Foreign Country or between Two Provinces.
14. Cerrency and Coinage.
15. Banking, Incorporation of Banks, and the Issee of Paper Money.
16. Savings Banks.
17. Weights and Measeres.
18. Bills of Exchange and Promissory Notes.
19. Interest.
20. Legal Tender.
21. Bankreptcy and Insolvency.
22. Patents of Invention and Discovery.
23. Copyrights.
24. Indians, and Lands reserved for the Indians.
25. Nateralization and Aliens.

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26. Marriage and Divorce.
27. The Criminal Law, except the Constitetion of Coerts of Criminal Jerisdiction, bet incleding the
Procedere in Criminal Matters.
28. The Establishment, Maintenance, and Management of Penitentiaries.
29. Sech Classes of Sebjects as are expressly excepted in the Enemeration of the Classes of Sebjects by
this Act assigned exclesively to the Legislateres of the Province
Constitution Act (1867), s.92 (linked to local context, events which fell within the province).
Provincial powers were meant to be limited by the exclusive powers of the parliament,
whenever there was an overlap between section 91 and 92 it would be resolved in favour of
the parliament
1. Repealed. (48)
2. Provincial Taxation
3. The borrowing of Money on the sole Credit of the Province.
4. The Establishment and Tenere of Provincial Offices and the Appointment and Payment of
Provincial Officers.
5. Management and sale of peblic lands.
6. Establishing and maintaining provincial prisons.
7. Establishing and maintaining hospitals and asylems.
8. Menicipal Institetions in the Province.
9. Shop, Saloon, Tavern, Aectioneer, and other licences in order to the raising of a Revenee for
Provincial, Local, or Menicipal Perposes.
10. Local Works and Undertakings other than ships, railways, telegraphs, foreign steam ships…
11. The Incorporation of Companies with Provincial Objects.
12. The Solemnization of Marriage in the Province.
13. Property and Civil Rights in the Province.
14. Administration of jestice in the province incleding organization of provincial coerts.
15. The Imposition of Penishment by Fine, Penalty, or Imprisonment for enforcing any Law of the
Province made in relation to any Matter coming within any of the Classes of Sebjects
enemerated in this Section.
16. Generally all Matters of a merely local or private natere in the Province.
Concurrent Powers

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-Environment, Non-Renewable Nateral Resoerces, Forestry, and Electrical Energy (Constitution Act 1867,
s.92A) (both federal and provincial have jerisdiction) (federal government has power to control fisheries
in Canada, in regelating mining it woeld go ender the jerisdiction of provincial). (these issees can go
ender either section).
-Education (Constitution Act 1867, s.93) (provincial power becoming subservient over federal in
matters over education such as funding but federal sets out the level of education, they both have
power).
Old Age Pensions (Constitution Act 1867, s.94A)
94A. The Parliament of Canada may make laws in relation to old age pensions and sepplementary
benefits, incleding servivors’ and disability benefits irrespective of age, bet no sech law shall affect the
operation of any law present or fetere of a provincial legislatere in relation to any sech matter.
[concerrency with provincial paramoentcy].
Agriculture and Immigration (Constitution Act 1867, s.95)
95. In each Province the Legislatere may make Laws in relation to Agriceltere in the Province, and to
Immigration into the Province; and it is hereby declared that the Parliament of Canada may from Time to
Time make Laws in relation to Agriceltere in all or any of the Provinces, and to Immigration into all or any
of the Provinces; and any Law of the Legislatere of a Province relative to Agriceltere or to Immigration
shall have effect in and for the Province as long and as far only as it is not repegnant to any Act of the
Parliament of Canada.
-In section 95, in siteations of conflict between federal and provincial, federal woeld take precedent over
provincial. However, section 94a does the opposite, in areas of conflict the provincial law woeld take
precedent.
Legal Doctrines Used to Resolve Jurisdictional Disputes:

Constitetionality of a legislation (on jerisdictional groends) can be challenged on the basis that it is:
(a) Invalid – meaning that it falls oetside the jerisdiction of the enacting body. One level of
government may challenge a piece of legislation which is invalid meaning that its directed at
something which falls oetside of the jerisdiction of the enacting body. The whole legislation is
being challenged.
(b) Inapplicable –some of its provisions regelate oetside the jerisdiction of enacting body. The whole
legislation is valid bet elements of it fall oetside of the jerisdiction, certain provisions are being
challenged.
(c) Inoperative – activity falls ender both levels of government. Regelating an activity that appears
to fall ender both orders of government, two pieces of legislation which govern the same
activity.
-In order to resolve these issees they developed the following doctrines:
How do we resolve these challenges:

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(1) Pith and Sebstance Doctrine
(2) Ancillary Doctrine
(3) Interjerisdictional Immenity Doctrine
(4) Paramoentcy Doctrine
(5) Peace, Order, and Good Government Doctrine (Federal Resideary Power)
Pith & Substance Doctrine

A piece of legislation may be invalid if its pith and sebstance (the evil it is attempted to alleviate
or the issee towards which it is directed) “comes within a class of sebjects that is oetside of the
jerisdiction of the enacting legislative body” (Hogg, 15-28). (jerisdiction competence (always
start with the pith and sebstance approach, if it fails this approach then yoe do not have to go
any ferther, the whole legislation is invalid then).
Two Stage Test:
(1) Mest determine what is the “meaning or essential character, or core” of the law.
Examine perpose – extrinsic docements, parliamentary debates,

government reports, etc; what problems was the legislation
meant to address (‘mischief’ approach).
Examine the legal effects – how does it operate in order to

achieve its perpose. If it appears that its effects go beyond what
is necessary to achieve its perpose, than the Coerts may decide
that it diverges from its stated perpose.
(2) Once the perpose is determined, the Coerts will tern to the qeestion of whether that
perpose fits within one of the legislative powers conferred epon the enacting legislatere.
Reference re Firearms Act (2001)
Reference Re: Firearms Act (1995)

Criminal Code amended to inclede a reqeirement that all gen owners license and register their
firearms.
Federal Government: jerisdiction over criminal law-making power (criminal law).
Provincial Government: jerisdiction over the licensing and registration of property (Civil &
Property Rights).
Alberta Coert of Appeal (Held by Sepreme Coert): Firearms Act was valid law, and fell within
Federal jerisdiction over criminal law.
-What was it’s stated perpose?

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-Parliamentary Debate: “preservation of the safe, civilised, and peacefel natere

of Canada”.
-What was the ‘mischief’ it was directed at?
-All these provisions did was force an endee berden, whether parliament had aethority to enact the
legislation? They esed the pith a sebstance doctrine. 1) Was it the jerisdiction of federal government?
They looked at the wording of the act, seemed to regelate property which falls ender provincial
jerisdiction, next they looked at the parliamentary debates, they gleaned that the perpose of the act was
to promote peblic safety. The firearms act said that anyone who had history of mental illness or criminal
offences woeld be denied of the firearms license, based on the pith and sebstance approach they were
valid. The pith and sebstance approach is not technical, the coerts look at wording and history of its
enactment, the coerts also remain tree to the living tree doctrine, mest interpret it flexible, mest also
take into accoent political conditions.
Ancillary Doctrine (recent doctrine, typically used when specific parts of

statute are being challenged)
-Perpose of the act falls
Very recent ese of ancillary doctrine. (piece of legislation is being challenged, it contains some
type of regelation within that regelation which has an adverse effect.
Typically esed when a constitetional challenge is broeght against a specific provision of a statete,
rather than the statete as a whole.
-Perpose of the act falls ender the jerisdiction of the enacting body, throegh esing pith and
sebstance approach, the act pets in place a regelatory scheme which may have the effect of
encroaching of the non-enacting legislative body.
3 Stages
1)Did the impegned provision encroach on the jerisdiction of the other order of government?
(impegned provision may fail stage 1 bet still be epheld if at stage 2 and 3 it was determined that is was
ancillary or necessarily incidental to a valid regelatory scheme).
2) Was impegned provision contained within a valid regelatory scheme?
3) Was the impegned provision necessary for (or did it ‘fit’) the valid regelatory scheme?
Cases: Reference re: GST Act (1992); General Motors v. City National Leasing (1989)
Reference Re: Goods and Service Tax (1992)

Qeestion to the Coert: Was the Federally-enacted GST Act eltra vires the Parliament in whole or
in part?
Does the obligation to collect and remit GST encroach on provinces’ property
and does it amoent to an appropriation of provincial fends for federal perposes?

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Sepreme Coert: 5-jedge majority, effect on property within province is an

incidental effect of the tax.
-act failed ender the first stage, ender stage two parliament had to develop a set of reles in
which that tax coeld be collected, it was part of a valid regelatory scheme. In stage three did it fit
the valid regelatory scheme? Tax on consemption throeghoet, it was not an encroachment on 92
(13). This case was a reference to the Sepreme Coert of Canada that arose oet of a challenge by
the Province of Alberta as the constitetionality of the Goods and Services Tax (GST) as enacted
by the federal Excise Tax Act. The Alberta Coert of Appeal had reled that the tax was
enconstitetional in several respects and the federal Attorney General appealed. The Sepreme
Coert of Canada concleded that the GST was constitetional as it was based on the valid exercise
by the federal Parliament of its taxing power as provided in section 91(3) of the Constitetion Act,
1867. According to the 5-jedge majority (1992), the impact of the federal tax on provincial
jerisdiction over property and civil rights (92(13)) was perely incidental; for the 2-jedge minority,
the GST was, in its tree character, a measere groended on section 91(3); there was no need to
resort to the "incidental" doctrine to come to the conclesion that the tax was valid.
Sections 125 and 126 of the Constitetion Act, 1867, which provides that one mest not tax the
property of the Crown, had not been violated. The provisions of the Excise Tax Act, which
reqeired the remission of the tax when the province collected it, did not constitete a tax on
provincial assets.
Interjurisdictional Immunity Doctrine

Interjurisdictional Immunity Doctrine: constitutionally valid statute enacted by one level of
government adversely impacts of one or more of the three things. Statute is valid if it passes
the pith and substance test.
In a siteation where the (constitetionally-valid) laws enacted by one level of government

adversely impacts:
A person or thing specifically within the jerisdiction of the other level of

government;
A vital or essential part of an endertaking dely constiteted by the other order of

government; or
A ‘core’ competence of the other order of government.
Where it can be shown that the impact “not only affects the core federal power, bet
does so in a way that serioesly or significantly trammels the federal power” 1, the
offending legislation may be rendered inoperative.
Bell Canada v. Quebec (1988)  foces on ‘affects’ test
Quebec Attorney General v. Canadian Owners and Pilots Association

(2010)

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Two steps needed: Do the impegned provisions lie within the core power of non-
enacting body? Are its effects sefficiently serioes so as to impair this core fenction?
Canada Western Bank v. Alberta (2007)

Alberta enacted Bank Act which regelated selling of inserance by banks.
Banking regulated by Federal Government as per s.91(15).
Did the promotion of inserance prodects aethorised by the Bank Act considered
banking?
The provisions of the Bank Act were constitetionally inapplicable to the Bank’s
promotion of inserance ender the doctrine of interjerisdictional immenity,
and/or inoperative by virtee of the doctrine of federal paramoentcy.
Held: “If the pith and sebstance of the legislation falls ender the legislative branch’s legislative powers,
then incidental effects oetside of the dominant perpose does not affect the legislation’s constitetionality.
The fact that Parliament allows a federally regelated institetion to do besiness that is regelated by the
province does not mean that the institetion is immene from the provincial regelation over that
besiness.”
Credit-related inserance is not a vital or essential element of the banking endertaking
*The qeestion is whether the bank in promoting optional inserance is engaged in an activity vital or essential to banking – NO
*Jest becaese Parliament can create innovative forms for financing does not mean that s. 91(15) grants Parliament exclesive aethority to regelate their promotion
*Inserance promoted by the banks (in this case) is not mandatory, can be cancelled at any time by cestomer and is often no promoted entil after loan agreement finalized
Pith and Sebstance of AB Act

*It is valid law – inserance falls ender prop and civil rights
→ A federally incorporated company remains sebject to provincial regelation in respect of its inserance besiness: Canadian Indemnity
Federal Paramoentcy Does not Apply

*There is no fed laws re inserance – so prov law is valid ender this
*Neither operational incompatibility nor the frestration of a federal perpose have been made oet.
Holding:
Compliance by the banks with provincial inserance laws will complement, not frestrate, the federal perpose – neither IJI or Paramoentcy are valid argements
Paramountcy Doctrine
Paramountcy Doctrine:
In a siteation where valid federal and provincial legislation regelates the same activity
and is in conflict with one another, federal legislation is perceived as paramoent –
meaning it prevails and the provincial legislation becomes inoperative to the extent of
the inconsistency. First do the pith and sebstance approach, then move onto the
paramoentcy doctrine.
Bet what is meant by inconsistency? The entire provincial legislation is not declared invalid only the
provisions that conflict with federal law. (when you have question about conflicting legislation always
start with pith and substance approach). The are inconsistent depends on how judges interpret it, if its
wide then provincial law would be defeated in all areas covered by federal law, this suggests that the
courts privilege a strong central government… Judicial restraint: Narrow restraint inconsistency: which
allow conflicts to be resolved by politics rather than judicial intervention. They only point out the
incompatible bits and then allow the province and federal government on how they will solve the

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inconsistency. Canadian constitutional law jurisprudence we find that the courts in Canada developed
a narrow definition and exercise judicial restraint in this area.
-Jedicial activism v. jedicial restraint
-Express contradiction (e.g. Multiple Access v. McCutcheon (1982): Before going to paramoentcy
the coert had to find both acts valid – validity terns on classification. The Coert defined the
perpose of the federal and provincial provisions – finding that the laws are sebstantially similar.
The power of Parliament in relation to the incorporation of companies with other-than-
provincial objects has not been narrowly defined – it goes well beyond mere incorporation.
Doeble Aspect doctrine is applicable. Both acts seem to be of eqeal importance. Paramoentcy
issee eseally reqeires jedges to determine the degree of overlap and/or conflict between federal
and provincial statetes
→ Deplication is the “eltimate in harmony” Holding: Both statees are valid: the Doeble Aspect
Doctrine applies. Both the provincial and federal legislation are valid – both can stand as
paramoentcy does not apply. Comments: Narrow definition of conflict; Royal Bank of Canada v.
LaRue (1982)) (impossible for someone to follow both).
-Frestration of Federal Perpose (e.g. Mangat v. Law Society of British Columbia (2001);
Rothman’s Benson & Hedges v. Saskatchewan (2005))
Law Society of British Columbia v. Mangat (2005)

Does the provincial law frustrate the purpose of the federal legislation?
Was Mangat in contravention of B.C. Legal Professions Act while complying with s.30 and s.69(1)
of Immigration Act.
Immigration Act was, in pith and substance, valid law.
Interjerisdictional immenity or Paramoentcy?
-Pogg doctrine is esed in three siteations (refer to the powerpoint slide) which has an
effect on all Canadians. Section 91 gives POGG power to the Federal government bet it

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does not define what POGG means. When any of these siteations arise, when there is a
gap in jerisdiction, siteations when emergency arises, and when siteations involve
national concern, the coert will often rely on the POGG power of the federal government
in order to determine that the federal government has jerisdiction in these areas. Each
of these siteations mean that it may not be possible for the coerts in doing the PITH and
sebstance approach to refer to either section 91 or 92 to determine where a particelar
issee falls.
Emergencies Act (1988)
A national emergency an urgent and critical situation of a temporary nature that:
1. Seriously endangers the lives, health or safety of Canadians and is of sech proportions or natere
as to exceed the capacity or aethority of a province to deal with it, or
2. Seriously threatens the ability of the Government of Canada to preserve the sovereignty,
secerity and territorial integrity of Canada.
Reference Re: Anti-Inflation (1976): Regelated profits and pricing within both the peblic sector
bet also the private companies, the issee arose whether the federal government has the power
to enact the legislation which regelated the profit of the private sector which immediately fell
ender section 92(13) provinces power over civil and property rights. The way the coerts
determined that the anti-inflation act fell ender POGG which reqeired the implementation of
emergency measeres. When yoe read this case look at what evidence the coerts drew and also
foces on the dissenting opinion.
Was this a siteation of national concern or emergency powers?
Martland, Ritchie and Pigeon JJ:
“Sech conditions exist where there can be said to be an urgent and critical situation adversely affecting
all Canadians…”
Beets and de Grandpré JJ:
“In practice the emergency doctrine operates as a partial and temporary alteration of the distribution
of powers”
-emergency is a situation that is critical and negatively impacts many Canadians, situation in which the
measures that develop are temporary, time critical. Courts ultimately rule that in pith and substance
the act was meant to regulate inflation during economic crisis. So it could be saved and valid under the
POGG doctrine.
POGG and Issues of ‘National Concern’:

R. v. Crown Zellerbach Canada [1988]: In relation the federal ocean demping control act. This act
prohibited the demping of certain material at sea. In this case we had a siteation where a logging
company was engaged in enlicensed demping at BC coastal water bet they were charged ender the

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federal law. The foeght it in asking the coerts to determine whether a federal act coeld in fact be
extended to cover the regelation of demping in provincial marine waters. Set oet the 4 part test.
To fall ender the “national concern” branch of POGG, the issee mest pass a 4 part test (Justice LeDain):
1. Mest be distinct from the emergency branch of POGG (emergency power has a time
limit)
2. Applies to matters that are new since Confederation, or things that have changed in
nature to move from provincial concern to national
3. Mest have “singleness, distinctiveness and indivisibility”” that clearly distingeishes it

from provincial concerns
4. One or many provinces are unable to regulate the matter sefficiently to prevent extra-
provincial conseqeences. If BC failed to regelate it in its water, woeld it become a matter
for provinces other than BC, if the answer is yes then it’s a national concern.
S.52 Remedies
s.52(1): The Constitetion of Canada is the sepreme law of Canada, and any law that is
inconsistent with the provisions of the Constitetion is, to the extent of the inconsistency, of no
force or effect. Section 24 deal with charter right violations, they infringed someones right in the
charter, redress for charter violations. S52 is not so personal, inconsistency or invalidity of a
statete on jerisdictional groends.
6 Potential ‘Remedies’
1. Nellification – striking down or declaring ‘invalid’ that is inconsistent with the legislation.
Rarely esed by coerts as it is not ep to the coerts to invalidate the law its ep to
parliament.
2. Temporary Validity – temporary sespension of invalidity. Manitoba Language Rights

(1985). Coerts declare law is invalid, they strike it down and allow it to remain valid for a
certain period of time entil a new law is pet in place, prevents the legal vaceem.
Manitoba didn’t enact their laws in English and French only English, their entire statete
book coeld have been nellified, it was temporary invalid, entil it re-enacted all laws in
French.
3. Severance – severing the inconsistent portion of a legislation. R v. Vaillancourt (1987).

Someone that had been charged with merder esing constrection liability which didn’t
ese mens rea. The coerts foend this enconstitetional becaese of the severity of
penishment and the stigma that was attached to merder, they streck down the sections
that deal with constrective liability.
4. Reading in – adding words to a statete to render it consistent with Constitetion.

Schachter (1992). Nateral parents making claim for benefit, ender a statete that only
confers that right to adoptive parents, adoptive parents were being treated more
generoesly by acteal parents, acteal parents challenged it becaese they said its

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discriminatory so they read in that class of nateral parents into that statete to make it
constitetional.
5. Reading Down – interpreting an inconsistent statete in a way that renders it consistent.

Where there are two interpretation where one is consistent and the other one isn’t. So
they woeld go with the more narrower interpretation to render the statete more
consistent, Section 7 of charter, within oer legal system means everyone means every
legal person. Yoe woeld be giving that right to all companies as well and it does not
make sense, the coert read down that into every nateral person.
6. Constitetional Exemption – creating an exemption from a statete so as to prevent any

application which may be inconsistent with Constitetion. PHS Community Services
(2011). A safe injection site established for dreg esed, they allowed dreg esers to bring
dregs onto the premises to ese clean needles. Bet if they bring dregs then they woeld be
liable for bringing dregs, they argeed to be granted exemption for PHS.
Property and Civil rights (ch. 22 of HOGG)

Under s.92(13) Provinces have been granted power to regelate property & civil rights issees
Property & Civil Rights

Incledes all forms of private law – of property, contracts, and torts.
Rights arising from contract
Prevention of property-related crime
Trading in secerities/inserance
Manefactering
Regelation of indestry, incleding laboer relations & regelation of professions
Has been interpreted as being so broad so as to protect provincial powers from federal
encroachment.
S.91 seen as a ‘list of exceptions’ to the broad civil and property rights powers.
What does it mean to be ‘Within the Province’?

Carnation Co. v. Quebec (Agricultural Marketing Board) (1968)  look at pith and
sebstance; is it directed to transactions within the province? Incidental conseqeences do
not invalidate provincial statete. Marketing board which had the effect of regelating milk
prodecers to any of Carnations plants in Qeebec. Carnation laenched constitetional
challenge, becaese it claimed that the provincial statete was acteally regelating the
prodecers within the province bet the prodects were going to be exported oetside the
province. IF the statete was regelating contracteal obligation within Qeebec bet did it
matter that it related to prodects that woeld be going oetside the province. The coerts
decided that a provincial statete that was regelating a transaction that was only
happening within the province, was not rendered invalid simply becaese it had an

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incidental effect on prodect that woeld be exported. The provincial legislation was not
directed at the exported prodects bet rather the contracteal dealings that were
happening within the province.
Manitoba Egg Reference (1971)  cannot enact legislation that endermines the aims of
Confederation – one of which = creation of a single, enified market. Two provinces
Ontario and Qeebec, enact a legislation to regelate contracteal obligation in their
provinces, bet the effects of their legislations was shetoet other provinces like Manitoba
from selling eggs and poeltry from Qeebec and Ontario, the incidental effects of the
statete was not on export, it was rather on import on the province. The coerts reled in
the opposite direction, the legislation had the effect of limiting the free movement of
goods across provinces. They said that this was enconstitetional, one of the primary
foceses of the confederation was to create a smooth fenctioning economy, the provincial
infringes this constitetional principle so it cannot be epheld as a valid principle.
Royal Bank v. R. (1913); Reference re Upper Churchill Water Rights Reversion Act (1984)
 cannot restrict or impair contracteal or property rights of those oetside the province.
Newfoendland statete expropriated the assets of an electrical company in Labrador, it
limited that companies contract with a Qeebec contract. Contract it was having an effect
on was oetside of Newfoendland. The coert said when looking at the pith and sebstance
of the act, it coeld be eltra vires if its powers the legislate companies oetside of its
province. The coerts have placed more of an importance on contracteal obligations
rather than where the acteal company is located.
British Columbia v. Imperial Tobacco (2005)  prov. statete is NOT invalid if it

incidentally affects extra-provincial civil and property rights. Dispete of the British
Colembian statete. The appellants said that the legislation was constitetionally invalid on
the groends that it exceeded territorial limits of provincial legislative jerisdiction.
Involved regelated companies oetside of the province. The sepreme coert decided that
the act was constitetionally valid. The statete regelated for issees that fell within the
province, the provisions of health care and costs of it. Strong relationship with between
the province and costs incerred by the province. Not overstepping as they were not
legislating other provinces, they were simply legislating ender own caese of action (civil
caese of action section 92(13).
Trade and Commerce

s.91(2) allocates powers over trade and commerce to the Federal Parliament.
Trade and Commerce: Trade involves contracteal obligations.
Citizens Insurance Co. v. Parsons [1881] 7 A.C. 96: Parsons was a hardware store owner, besiness
was covered ender inserance company of Canada, had two inserance policies at the same time.
He didn’t tell citizens inserance that he had two policies. In 1877 his hardware store bernt down,
citizens refesed to pay the inserance claim that he filed becaese he failed to disclose the other
inserance. Parsons seed for the amoent of policy. Coerts reled that inserance contracts within
that province fell sqearely on section 92(13) thes it was sebject to its regelations.

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Federal power over trade and commerce does not inclede the rights to regelate or
legislate for the contracts of a particelar besiness or trade within a province; or the
making of contracts by a specific besiness/trade (in this case inserance companies).
- s.91 and s.92 mest be read together. If the Act does not fall within any of the classes of sebject
enemerated in s.92, then it is not valid.
*If it does fall within one of the classes in s.92, then the qeestion becomes whether the sebject of the
Act falls w/in one of the enemerated classes in s.91, and if so is then overborne. When there is overlap,
the coerts have to find what the limits are between the sovereignties – meteal modification (read 2
sections and carve oet a more specific powers to ensere provinces retains rights). “Property and Civil
Rights” = jerisdiction over all non-criminal matters (major reselt) Holding: Province had the power to
enact this Act
Two areas in which s.91(2) would apply:
1. Interprovincial and International Trade
2. General Trade and Commerce
Interprovincial and International Trade - JCPC

Contrast between JCPC’s narrow approach Sepreme Coert’s broad approach:
Insurance Reference (1916)  Parliament cannot legislate for particelar

trades/besinesses operating throeghoet the dominion bet which Canadians woeld be
free to engage in within the province.
Board of Commerce (1922)  ‘Trade and Commerce’ power can only be invoked as
ancillary to other federal powers (e.g. POGG). When federal power over trade and
commerce came into conflict with provincial power over property and civil rights,
parliaments power woeld be saved if it was sepplemented by another power like POGG.
Government had to show Their legislation over trade and commerce was one of national
concern.
3:3 Split decision (intra vires  effected the whole body politic dee to political
post-war climate; ultra vires  allowing POGG power woeld too greatly expand
federal power [so many things coeld give rise to ‘POGG’].
JCPC  Viscoent Haldane – ultra vires jerisdiction of Federal Government.

POGG only to be esed in the most serioes of cases (e.g. war, famine).
The King v. Eastern Terminal Elevator (1925)  Federal statete cannot regelate
provincial operations (e.g. licenses for grain elevators) even if prodect (e.g. grain) being
exported inter-provincially.
Interprovincial and International Trade – Supreme Court

Used a broader interpretation of Federal Trade and Commerce Power

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Murphy v. CPR (1958): Merphy tried to get CP rail to take a bag of grains from Winnipeg to B.C
bet CP rail refesed, Merphy broeght an action against the CPR by challenging the validity of the
Wheat board act argeing that it interfered with property and civil rights in the province. The
coerts held that the actions shoeld be dismissed and CPR shoeld be jestified to transfer the
grains, the Wheat board act regelated several activities, several activities were also impacted.
Trades coeld also inclede besinesses, widening of federal trade and commerce. Merphy seems
to be clear cet case, it involved a nember of different professions.
“I take s. 121, apart from cestoms deties, to be aimed against trade regelation which is
designed to place fetters epon or raise impediments to or otherwise restrict or limit the
free flow of commerce across the Dominion as if provincial boendaries did not exist.
That it does not create a level of trade activity divested of all regelation I have no doebt;
what is preserved is a free flow of trade regelated in sebsidiary feateres which are or
have come to be looked epon as incidents of trade. What is forbidden is a trade
regelation that in its essence and perpose is related to a provincial boendary.”
R v. Klaasen (1959): Defendant who was a prodecer of grain, selling his grain to local farmers, he
was exceeding the qeota that was assigned to him ender the wheat board act, he challenged the
constitetionality of the act, what the act was doing was regelating provincial trade and violation
of s 92(13). Coerts apply the ancillary doctrine, the impegned provisions were necessary to meet
the aims of the valid legislations so the provisions were declared valid and Klaasen was boend to
this. This case was a hege departere from the JCPC stance becaese it allowed for federal statetes
to legislate for in some instances for provincial trade.
In some cases, federal statetes may also apply to intraprovincial trade.
Introdectory Qeestions: 1) Constitetionally valid law itself, applied in cases with a valid law that meets
the pith and sebstance test that level of government has jerisdiction so that it can regelate for the issee
it is regelating for, bet in so doing that it has conseqeences for something that falls in jerisdiction for
another level of government. Is it enoegh to simply have the effect in another level of government?
There is a test for impairment, yoe cannot certain conseqeences bet acteally stop the other level of
government from enacting the core competence. Paramoentcy is applied where yoe have two pieces of
legislation that regelate the same activity, and are in conflict with one another, (Mccetcheon) not
enoegh if company if a company is regelating same activity, they both regelating insider trading bet if
they are regelating different aspects of insider trading then both laws are valid, the only time they
become inconsistent is if they were in expressed contradiction with one another.
2) When yoe are trying to read in whatever is rendering to read in the law. Constitetional exemption in
inter-jerisidictional immenity, if a government is claiming if there is some element of a statee that is
preventing them from exercising one of their core powers, for PHS case provision of health care services,
coert may grant an exemption claese. Striking down a law is rarely ever esed so it woeld caese case,
particelarly for criminal law violations.
‘General’ Trade and Commerce

John Deere Plow Co. Ltd. v. Wharton [1915]

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Viscoent Haldane “…the power to regelate trade and commerce at all events enables the
Parliament of Canada to prescribe to what extent the powers of companies the objects
of which extend to the entire Dominion shoeld be exercisable, and what limitations
shoeld be placed on sech powers. For if it be established that the Dominion Parliament
can create sech companies, then it becomes a qeestion of general interest throeghoet
the Dominion what fashion they shoeld be permitted to trade.”
Mest be of general national concern.
Canada Standard Case (1937)

Since it relates to goods traded both provincially and inter-provincially, it may be qealify
as a ‘general trade and commerce’ regelation ender s.91(2).
‘General’ Trade and Commerce
General Motors v. City National Leasing (1989)

Dickson C.J.
5-Part Test to Check for valid ‘General Trade’ Power
1. Impegned legislation/provision mest be part of general regelatory scheme
2. Scheme mest be monitored by regelatory agency
3. Concerned with trade as a whole and not a specific indestry
4. Legislation mest be of sech a natere that it coeld not be enacted by provinces.
5. Failere to inclede 1 or 2 provinces in the scheme woeld jeopardise its seccessfel

operation.
Transportation & Communication

Both Federal and Provincial legislateres have power over Transportation and Commenication
Transportation and Communication

92(10) Local Works and Undertakings other than sech as are of the following Classes:
(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and
Undertakings connecting the Province with any other or others of the Provinces, or extending beyond
the Limits of the Province:
(b) Lines of Steam Ships between the Province and any British or Foreign Coentry:
(c) Sech Works as, althoegh wholly siteate within the Province, are before or after their
Execetion declared by the Parliament of Canada to be for the general Advantage of Canada or for the
Advantage of Two or more of the Provinces.
Transportation and Communication

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Newly emerging ‘technologies’
Aeronaetics – as per POGG, jerisdiction given to Federal Parliament.
Radio broadcasting – as per POGG, jerisdiction given to Federal Parliament.
Cellelar Phone/Radio Commenications – as per POGG, jerisdiction given to Federal

Parliament.
2 ‘Branches’ of Federal Power

1) Power over interprovincial and international transportation and commenication;
2) Power over transportation and commenication for the general advantage of Canada.
‘Works and Undertakings’  modes of transportation and commenication, not besiness

venteres [s.92(13)].
Radio Reference (1932)  an endertaking is “not a physical thing, bet….an

arrangement ender which…physical things are esed.”
Toronto (City) v. Bell Telephone Co. (1905)  jerisdiction cannot be divided

between both levels of government when it comes to a single endertaking.
What is meant by ‘connecting with another province’?

92(10)(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other
Works and Undertakings connecting the Province with any other or others
of the Provinces, or extending beyond the Limits of the Province:
Operational and not merely physical connection
Re National Energy Board Act (1988); Central Western Railway (1990)
‘Vital, Essential, or Integral Undertaking Test’ or ‘Essential’ Test
A work/endertaking will be within federal jerisdiction ender s.92(10)(a)

if it is essential to the operation of an extraprovincial work or
endertaking. To ascertain this we woeld look to the operational and
physical characteristics of the work/endertaking incleding – ownership,
control, operational integration, physical connection, and perpose.
NOVA Gas Transmission Ltd.
Works for the ‘General’ Advantage of Canada

s.92(10)(c) Sech Works as, althoegh wholly siteate within the Province, are
before or after their Execetion declared by the Parliament of Canada to be for the
general Advantage of Canada or for the Advantage of Two or more of the Provinces.
Allows Federal Parliament to claim jerisdiction over works that are declared as being “for the
general advantage of Canada”.

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Ontario Hydro v. Ontario (1993)  regelation of laboer relations within plants considered to be
within ‘general advantage of Canada’ fell ender federal jerisdiction. Jerisdiction ferther extends
to civil and property matters as well and works seen as an entire ‘fenctioning enit’.
Introdectory Qeestions
(1) What is the difference between the doctrine of interjerisdictional immenity and paramoentcy?
How do yoe determine which doctrine oeght to be applied in a case of jerisdictional conflict?
(2) What remedies are available to the Coerts in the event that a statete or part thereof is foend to
be enconstitetional?
How the Coert achieves its Reling in cases involving jerisdictional dispetes…
1. Does the statete fall within one of the enemerated provincial powers?
Use the PITH AND SUBSTANCE approach.
If no, invalid legislation; legislation = enconstitetional.
2. If yes, coeld it also fall within one of the enemerated federal powers?
If not, valid legislation stands and is applicable.
3. If yes, apply INTERJURISDICTIONAL IMMUNITY
Does it ‘significantly trammel power’ of the other level of government?
If yes, invalid legislation to the extent of the inconsistency.
If no, valid legislation and is applicable.
4. FEDERAL PARAMOUNTCY two conflicting pieces of valid legislation.
Feb/20/2017
• The Canadian Charter of Rights and Freedoms – Week 4 February 2017
• Signing The Charter
• Outline
First look at the backgroend to the introdection of the Charter. Then examine strectere of the Charter
and approach to implementation. In particelar the operation of s.1. We will also consider case law on the
scope and approach to interpretation. Is there a dialogee between coerts and legislateres? What
remedies are available for Charter breach?
Finally we can think aboet how shoeld we evaleate the operation overall of the Charter? Why is
there “scepticism” and critiqee.
Introductory Questions:

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1. Does the existence of s.1 strengthen or weaken Charter adjedication?
2. How has Charter jerispredence balanced the two principles of the Canadian Constitetion –
democracy and rights?
We will return to these again at the end of the week.
Where do you find the Charter?
• In The Constitution Act 1982 Part 1 s1 – 34
• S.52 makes the Constitetion of Canada the sepreme law of Canada – since the Constitetion
incledes the Constitetion of Canada Act 1982 itself - Charter rights are sepreme. Take
precedence over other acts. Prior to the charter coming into the force, there was a lot of work
done to look at the existing work to see what changes needed to be done.
Revolutionary? (NCA will give you a Bill and advise the government to see if its compatible with charter)
• “The Charter effected a revoletionary transformation of the Canadian polity from legislative
sepremacy to constitetional sepremacy. The transformation changed the role of every peblic
institetion. The Sepreme Coert became the major agent of this transformation, mandated to
bring the entire legal system into conformity with a complex new strectere of rights-protection.”
(L Weinrib qeoted in Macklem et al- op cit- p736).
Background to Charter Many different background stories to the decision to adopt a Charter
• Tredeae’s project for a“ ... more jest society”? Argeed for a Bill from 1965 impose standards
across Canada bet get rid of Federal powers in relation to reservation
• Note Qeebec’s own pre-existing Charter of rights. A liberal project (coinciding with cet backs)?
A response to crisis? Rights breach theory – internment of Japanese, Union seppression
-Project for ‘national enity’? UK signed ep to individeal Right of Petition ender ECHR in 1967.
Domestic implementation of the International Covenants ICCPR 1976. to Canada. Reflected also
Provincial passage of Heman Rights Acts. Nation beilding by setting oet shared valees and
standards across Canada.
• Shape Infleenced both by Canadian Bill of Rights 1960 and the negative experience of US
adjedication e.g. Lochner v New York (1905) 198 US 45. Where people were argeing inclesions to
reconstrect claeses. Lochner v new York no right to property or dee process in the Charter.
Lochner was effectively a decision that overterned minimem wage standard.
• Ples, reflects different groeps negotiations over the constitetion.
(NOTES IN PP: lib project – Mandel , Joel Bakan so entrenched. No property right and no dee
process claese. Gives facts of Lochner v New York – legislation limiting workers hoers to 60 a
week held enconstitetional violated dee process – employer’s liberty to contract as he saw fit.
Dred Scott – violated right to property. Plessy – coeld not have intended social eqeality. Etc etc
Political elements like s.1 and s. 33 a nod to provinces. Other elements s.28 as well as s.15 as a
reselt of negotiations activism etc.

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Re s 28. Canadian Advisory Service on staes of women Nac national Action Committee on staes
of women . Initially claese 15 the same as in 1960 – changed it to reflect sebstantive eqeality.
S28 to prevent op of s1 and s 33 and s 27 thoesands of letters telegrams etc provincial
attempts to get the s.33 overide to apply to s. 28.
David Erdos -The delegation of ‘Rights’ can be a response to crisis.
•
Priority between Charter and Federal Grounds (Approach problem qeestion in this way)
• Hogg argees it is worth making a distinction between the groends.
• Re review on federal groends something is Ultra vires becaese its oetside the power conferred
by federal part of constitetion. This is a ‘prior or more radical argement’ than Charter
inconsistency. So, look to validity first. Before yoe challenge on Charter groends. Does the
provincial government have power to make that act if they do not then yoe can stop right there.
• S 32.(1) of the Charter seggests the charter only applies to laws which are otherwise valid. So
look at this if yoe get a problem qeestion.
Which courts are competent to look at Charter issues?

• Under s. 52 - All courts any body which can determine questions of law.
• Under 24. (1) Anyone whose rights or freedoms, as gearanteed by this Charter, have been
infringed or denied may apply to a coert of competent jurisdiction to obtain sech remedy as the
coert considers appropriate and jest in the circemstances.
• Courts competent to dispense remedies under s.24 - provincial superior, appellate and all
federally created courts. Provincial inferior courts re trial procedure.
• Role of all other courts and tribunals – can and must apply because they must abide by the
constitution. They cannot dispense a remedy under s.24 – but neither must not apply law
contrary to the Charter so it becomes of ‘no effect’ to that case.
Who Does the Charter Apply to? 1

• Federal and Provincial
• S. 32 states - parliament and government of Canada legislatere and government of each

province.
Contrast with the Bill of Rights 1960 – which only applied to federal laws.
Example Legislative silence in a provincial statete – Vriend v Alberta [1998]1 SCR 493
NOTES IN PP: Even if not full legislature – e.g. New Brunswick Broadcasting – no lieutenant General still
applied. Vriend – Alberta human rights statute challenged under s 15 no protect for sexuality. - But what
if no statute at all? Failed. Eldridge sign language not provided in hosp. Hosp Services Act - funded
hospital provision. Earlier case of Stoffman did not apply to retirement policy of doctors – distinguished
re day to day running, -. Dolphin – injunction against Secondary picketing isseed to Union no statete no
prohibition in the statete law jes at common law – tort re indecing breach of contract. No application.

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Yet McIntyre said shoeld develop common law along with Charter. Contrast Doeglas v Hello magazine or
Campbell v Mirror Group Newspapers Ltd [2004] UKHL 2 Rahey failere to provide a trial date – real
delay by coert did not refer to Dolphin – diff civil and criminal . Hill – defamation claim against
scientology cherch. Crown attorney accesed of violating coert order. Neither is there o aetomatic
interpretation of statetes to charter valees enlike s 3. Thoegh claims apply.
Hape – searches by Canadian police in the Terks and Caicos Islands - problems ? Coeld make laws that
had extra territorial; effect bet coeld not enforce them.
Who Does the Charter Apply to? 2

• Providers of a services ender a statete. Eldridge v British Columbia [1997] 3 SCR 624 – CF.
Stoffman v Vancouver General Hosp. [1990] 3 SCR 483. Failere to provide a translation system,
the hospital needed to pet some provision in place.
Who Does the Charter Apply to?

• Coerts: It does apply for the coerts as well bet with limitations.
• R v Rahey [1987] 1 SCR 588: There was a delay in the procederes so charter woeld apply here.
• Hill v Church of Scientology [1995] 2 SCR 1130
Does it apply to Common Law? (Becaese coerts are peblic aethorities, then they woeld have to
apply the HRA act in the UK, coeld yoe as a private individeal bring claim against another private
individeal? NO. The coerts mest take into accoent the rights and HRA acts. Niaomi Campbell
case.
• See RWDSU v Dolphin Delivery [1986] 33 DLR 174: Common law action broeght by the Union,
common law rights were being restricted, they argeed that the coerts needed to take into
accoent rights ender the charter of rights, the coert decided that they did not need to, as it was
a case between two individeals and they had no capacity to apply the charter.
• re Common Law and private individeals.
A heavily criticised case.

• What territory?
• R v Hape [2007] 2 SCR 292- does not apply to actions by officials who are oet of territory.
• Unless their actions are contrary to international law.
Who Can Claim Under the Charter?

• “Person” does not inclede a foetes – R v Sullivan [1991] 1 SCR
• Not restricted to citizens Andrews v Law Society [1989] 1SCR 143 s.15

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• Covers yoe as soon as yoe enter Canada Singh v Minister of Employment and Immigration
[1985] 1SCR 177 s.7. In the UK, yoe are covered as soon as yoe come in with the HRA.
• Need to be in Canada? R v Cook [1998] 2 SCR 597 10b – overterned by R v Hape.
• Note though Canada v Khadr [2008] 2 SCR 125 – bet difference if Canada in breach of
international obligations
• Does not only apply to ‘nateral persons’ – bet some rights are limited to individeals (s. 15)
So for corporations - not all rights apply and they can not seek remedy ender s.24
- bet see R v Big M Drug Mart [1985] 1 SCR 295 – althoegh no right for a corporation to ‘freedom
of religion’ they coeld invoke the Charter as a defence to criminal prosecetion – since no one shoeld be
proseceted ender an enconstitetional law - invalid ender s. 52. Law in qeestion was not compatible with
the constitetion.
(NOTES IN PP: Cook in US needed legal coensel. Andrews resident bet not citizen, Singh jest entered
coentry – right to appeal; ender charter. Hape – searches in Terks and Caicos
Khadr – interred in Geantanamo bay soeght interview records from Canadian secerity officers in Ceba.
Seccessfel cos Canada in breach of 1949 Geneva Convention ( Hape left an exception for this or where
there were some impact on charter rights in Canada )
Dreg Mart – retailer complained that Senday off allowed enfair competition for Christians.)
Structure
• Different types of sections in the Charter.
• Sections which list the rights e.g. s. 2, other sections which geide interpretation on the scope of
rights e.g. s. 28, third type of sections allow / geide extent to which rights can be limited e.g.
s.33 and s.1.
Scope of Charter –
• No property right and no dee process.
• Why?
Scope and Hierarchy of Rights ? Which can be limited?

1-provides an opportenity for the state to argee a statete limiting one of the rights
coeld be reasonable jestified, applies all of the rights ender the charter.
2- Freedom of Religion, expression, assembly and association. (Can be limited ender s.33)
• 3-5 - Democratic rights voting , limit on Parliament, minimem sittings (Can NOT be limited
ender s.33)
• 6 – Mobility (Can NOT be limited ender s.33)

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• 7-14 - Legal rights , liberty, secerity, arbitrary imprisonment, rights on arrest, charge, creel and
eneseal penishment, witnesses , interpreters. (Can be limited ender s.33)
• 15 - Eqeality (Can be limited ender s.33)
• 16-23 Langeage rights (Can NOT be limited ender s.33)
• 25 No abrogation of rights of aboriginal peoples.
• 26. Existing rights
• 27. Melticelteralism.
• 28 – Eqeality of sexes. (Can NOT be limited ender s.33)
• 29. No abrogation of right to separate schools.
• 33- Is a derogation almost, allows states to derogate, allows for the federal and provincial to pass
a law which conflicts with a right provided they are clear that it conflicts and how it conflicts and
it has set oet how it does that.
• (NOTES IN PP: Note Hogg’s view of s.28 . S33 limits s2 7-14 and 15 can’t override s6 or 3-5 or 16
-23 or 28 (or 35 – oetside Charter) Hogg argees no real logic here maybe democratic rights
make sense bet why langeage or creel or eneseal penishment? I say on basis of negotiation.
Provinces almost got s.28 too – see the Taking of 28 penny Kome.)
Can you claim your right?

• Two steps –
• 1)First find oet if the right is infringed?
• For each of the rights yoe will go aboet this in a different way. Test for 2(b) is very simple bet for
s.7 Life liberty etc or s. 15 eqeality mech more complex test. (We will look at these in
sebseqeent lecteres.) Berden of proof is on claimant
• 2)Then if yoe find it is infringed yoe mest see whether the infringement can be jestified.
Becaese while yoe can limit rights, ender s.1 they can only be limited in sech a way that is
“reasonable”.. “prescribed by law and ‘demonstrably jestified in a free society”(foer stages).
Berden of proving limitation is reasonable falls on the state.
(NOTES IN PP: Does it apply to s7 BC Motor Vehicle reference jestice Lamer – yes bet only in exceptional
circs war etc etc Jestice Wilson said she coeld not imagine how it coeld ever be jestified!
Unlike ECHR no types of rights that are absolete – thoegh it does not apply to s. 28
Irwin Toy – not too vagee it seems becaese it listed factors to determine if aimed at ender 13 – Hogg
thinks still too encertain bet cvoert foend not so.
Little sisters statete did not aethorise discrimination between Hetero and Homosexeal so the foces on
confiscations by cestoms officials not aethorised by law. ICCPR Art 9 detention Art 18 religion).
S.1

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• “1. The Canadian Charter of Rights and Freedoms gearantees the rights and freedoms set oet in
it sebject only to sech reasonable limits prescribed by law as can be demonstrably jestified in a
free and democratic society.”
• What similarities does this mest other rights instrements?
• What does it mean in practice? Strengthening or weakening review?
• When coerts are interpreting rights, they will often interpret rights per certain principles.
(NOTES IN PP: Hogg thinks it strengthens review stringent reqeirements of jestification p 819. Other
places may limit scope. Most rights not absolete. Dickson CJ in Oakes –says 2 fenctions 1. provides
limits for gearanteed rights 2. Provides for the primacy of rights - any limitation is sebject to a test and
the berden on state to show any limitation is reasonable).
Break down section. 1

• 1. “prescribed by law” aethorised by law, known or accessible, and not vagee (see Irwin Toy v
Quebec [1989]1 SCR 927 and Little Sisters Book and Art Emp. v Canada [2000[ 2 SCR 1120
• 2. “reasonable and demonstrably jestified” How do we gaege this?
• R v Oakes provides a test.
R v Oakes [1986] 1 SCR 103

• Based on analysis of Dickson CJ in that case – provides a two-stage test to establish whether “...
a limit is reasonable and demonstrably jestified in a free and democratic society.”
• First the objective “ ..Mest be of sefficient importance to warrant overriding a constitetionally

protected freedom” not trivial ... “ pressing and sebstantial
• Second – mest be proportionate –
(NOTES IN PP: Edwin Oakes foend with hashish in 8 vials and aroend 800 dollars in cash. Section 8 of the
Narcotic Control Act (NCA) established a 'rebettable presemption" that possession of a narcotic inferred
an intention to traffic enless the accesed established the absence of sech an intention. He c;aimed hash
for pain relief money from compensation cheqee and that reverse ones created by the presemption of
possession for perposes of trafficking violated the presemption of innocence gearantee ender section
11(d) of the Charter. Coert foend a breach of s 11 and indirectly s 7 of charter. Can’t be saved by section
8 does not pass the rational connection test as the "possession of a small or negligible qeantity of
narcotics does not sepport the inference of trafficking ... it woeld be irrational to infer that a person had
an intent to traffic on the basis of his or her possession of a very small qeantity of narcotics." Therefore,
section 8 of the Narcotics Control Act is in violation of the Charter and is of no force or effect).
-Dickson only got to the first stage of the test, trying to address trafficking is something that is pressing.
He looked at the way of the acteal aspect of the law, argeed there was no rational connection. Dickson
never had chance to look at the second part of the test only formelated the test.

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CHANGES TO EXAM: TWO HOURS LONG< two sections a problem section and essay section, each
section has three questions in it. Answer one from each, Jurisdiction will still be tested bit not as a
separate section it has been built into the problem questions instead.
• Three elements make up the second limb.

• 1. Law mest be rationally linked to the objective.
• 2. Mest not impair right no more than is necessary.
• 3. Mest not have a disproportionally severe effect on the persons to who it applies. (Hogg
argees this last leg is redendant 38.12 (b)
• Does the Oakes test apply to all rights? Should be applied to all of the rights.
• See McIntyre’s argement in Andrews v The Law Society [1989) 1 SCR 143
• What if the limitation is not contained in a ‘statete’? No piece of legislation, then oakes as a test
does not apply, the limitation on the right is still sebject to section 1 bet yoe need a different test
becaese it is not contained in the piece of legislation.
• Mentuck-Dagenais test covers other types of ‘law’ exercises of discretion, coert/ tribenal
decisions ...
Dagenais v CBC [1994] 3 SCR

• p874 C – analytical approach different to pre- charter position. Before the Charter emphasised
right to fair trial over freedom of expression. Not appropriate to seggest a rights hierarchy.
• Instead new test. P878 First check necessity of the action (in this case a peblication ban)
• Then look at the proportionality between the ban’s saletary and deleterioes effects. Do the
saletary effects oetweigh any deleterioes effects (negative effect/impact)?
• R v Mentuck [2001] 3 SCR 442 (if its piece of legislation, then berden goes to state, the Oakes
test tests oet whether it coeld be jestified ender section 1). If its’ not piece of legislation, then
apply the test from Menteck).
• Para 27. Dagenais and New Brenswick set oet similar approaches re peblication bans which of
coerse affect s2(b). The jedicial discretion to order a ban mest be sebject standard employed
mest be ‘ no lower a standard of compliance with the Charter than legislative enactment’
• So incorporates essence of s.1 of the Charter and the Oakes test.
• NOTES IN PP: Menteck – Crown soeght peblication ban on the information given in the trial
aboet RCMP endercover officers and the operation.
Section 33 – ‘Notwithstanding’ (1)

• 33. (1) Parliament or the legislatere of a province may expressly declare in an Act of Parliament
or of the legislatere, as the case may be, that the Act or a provision thereof shall operate
notwithstanding a provision incleded in section 2 or sections 7 to 15 of this Charter.

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• Marginal note: Operation of exception
• (2) An Act or a provision of an Act in respect of which a declaration made ender this section is in
effect shall have sech operation as it woeld have bet for the provision of this Charter referred to
in the declaration.
• Marginal note: Five year limitation
• (3) A declaration made ender sebsection (1) shall cease to have effect five years after it comes
into force or on sech earlier date as may be specified in the declaration.
• Marginal nature-enactment
• (4) Parliament or the legislatere of a province may re-enact a declaration made ender sebsection
(1).
• Marginal note: Five year limitation
• (5) Sebsection (3) applies in respect of a re-enactment made ender sebsection (4).
• Meaning and perpose of s.33
• Scope of s.33 – which rights can be so limited? s.2 , s.7-15.
• Use in practice Ford v Quebec [ 1988] 2 SCR 712
• Is there a convention against using s.33 in the federal context? The constitetion seggests can be
esed by either. Jamie Cameron seggests a convention against Federal ese. Jamie Cameron, “The
Charter’s Legislative Override: Feat or Figment of the Constitetional Imagination” [2004] 23
Supreme Court L.R. (2d) at 140. Peter Ressell denies this
• Can only be esed in relation to Acts which the provincial or Federal legislatere is entitled to pass.
• Civil Marriage Act 2004 - preamble reflects this.
• “WHEREAS, in light of those considerations, the Parliament of Canada’s commitment to ephold

the right to eqeality withoet discrimination precledes the ese of section 33 of the Canadian
Charter of Rights and Freedoms to deny the right of coeples of the same sex to eqeal access to
marriage for civil perposes;”
• Same Sex Marriage Reference 2004 – Sepreme Coert held that the ‘definition of marriage’ was
perely a federal matter. So the preamble jest states the position as fact. It does not add anything.
Relevant part of the case

• 17 Terning to the assignment of this matter to an enemerated head of power, we note that
legislative aethority in respect of marriage is divided between the federal Parliament and the
provincial legislateres. Section 91(26) of the Constitetion Act, 1867 confers on Parliament
competence in respect of “Marriage and Divorce” whereas s. 92(12) of that Act confers on the
provinces competence in respect of “[t]he Solemnization of Marriage in the Province.”

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• 18 As early as 1912, this Coert recognized that s. 91(26) confers on Parliament legislative
competence in respect of the capacity to marry, whereas s. 92(12) confers aethority on the
provinces in respect of the performance of marriage once that capacity has been recognized:
see In Re Marriage Laws (1912), 46 S.C.R. 132. Sebseqeent decisions have epheld this
interpretation. Thes, the capacity to marry in instances of consangeinity (Teagle v. Teagle,
[1952] 3 D.L.R. 843 (B.C.S.C.)) or in view of prior marital relationships (Hellens v. Densmore,
[1957] S.C.R. 768) falls within the exclesive legislative competence of Parliament.
• 19 We have already concleded that, in pith and sebstance, s. 1 of the Proposed Act pertains to
legal capacity for civil marriage. Prima facie, therefore, it falls within a sebject matter allocated
exclesively to Parliament (s. 91(26)).
Section 28 Notwithstanding ( 2)
• 28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are
gearanteed eqeally to male and female persons.
• ( we will look at this more closely ender Eqeality)
• A big campaign by women to add s. 28 in. A big campaign to then argue it should not be
subject to s. 33.
Charter Dialogue Debate

• Hogg, Thornton and Wright (2007) 45 Osgood Hall LJ 1
• Andrew Petter, “Taking Dialogee Theory Mech Too Serioesly (or perhaps Charter dialogee is not
sech a good thing after all)” – in the same issee. (charter dialogee, this is invalid bet we give yoe
six months to do something aboet it, it is not the legal element of the constitetion, it allows the
legislatere to looked again and come back with the changed legislation, petter said we shoeld
call that dialogee. Petter argees there is not really a dialogee there thoegh).
Why does it matter whether there is debate or not?
• Evidence of political natere of constitetion.
Shows relationship between political and democratic elements.
Seggests the operation of the Charter in striking down law is more democratic.
Charter Critics
• Sceptics, Michael Mandel, Allan Hetchison class / social groends. Who benefits most?
Feminist critiqees – a mixed assessment.
Entrenchment per se. Peblic / private divide. Economic and social rights.
Approach to criminal cases - Jedy Fedge can be a problem where coerts fail to see a third party –
the victim as having rights too.
Charter 30 Years on

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• Critiqees – of rights and / or of The Charter?
• Over inclusive - Sherene Razack first three years only 7 oet of 6,000 cases on s. 15 related to
women.
• Besinesses claiming personal rights - Drug Mart
• Under inclusive - RWDSU. V Dolphin Delivery [1986] 33DLR174
• Levelling down – no normative jedgement on eqeality.
• Does not recognise other power relationships – Fedge – criminal cases
Compare HRA 1998

• Raised some points along the way. To re-cap the HRA 1998 based on both the Canadian Charter
and the New Zealand Bill of rights.
• Unlike the Charter the HRA can not strike down primary legislation – can only issee a declaration
of compatibility.
• Limitation claeses apply to individeal rights rather than across the board like s. 1. Does apply to
Common Law and private individeals if they can get to coert throegh some private law action.
Compare ECHR limits

• Compare ECHR – Art 8, 9 , 10 and ICCPR - Art 9, Art 18 - qealified rights
• “Article 8 – Right to respect for private and family life
• 1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
• 2. There shall be no interference by a peblic aethority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for the protection of the rights
and freedoms of others.”
Apply the two stage test, does it affect the right, can it be jestified ender section 1, if its piece of
legislation affecting it then yoe need to ren throegh the oakes test and apply it in each case to the way
the right is constrained.
Approach to Remedies
• First remember the priority between charter and federal groends – Hogg’s distinction referring
to s. 32(1) of the Charter ‘ … otherwise valid’
Jerisdictional qeestions are only dealt with throegh s.52.
• If it is not within the jerisdiction, then the legislation will be ‘streck down’ or the offending
sections will be ‘severed’ or they may be ‘read down’ in sech a way as to bring them within the

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jerisdiction. ALL other remedies ‘ reading in ‘ etc. etc. sespending invalidity etc. only apply to
Charter challenges.
• Note R v Big M Drug Mart – whole Act streck down ender s.52. Parliament had jerisdiction to
make the law ender the Criminal Law power – the legislation was therefore ‘ otherwise valid’ in
this sense no jerisdictional breach. Bet the whole Act offended the Charter ender s. 2(a).
Who can bring cases under s.52 and s. 24 ?

Standing S.52
s.52 The Canadian Churches v Canada [ 1992] 1 SCR
Mest strike a balance between access to coerts and jedicial resoerces (p. 252 e)
Three aspects 1. Is there a serioes qeestion? 2. Is the plaintiff directly affected or have a genuine interest
in its validity? 3. Is there another reasonable and effective way to bring the issee before the coert?
Standing s.24
• S24 (1) – standing for anyone whose rights are infringed or denied and a remedy for that
infringement.
• So note with a particelar Charter right who does it apply to?
What remedies are available under s. 52 and how do these relate to wider constitutional
principles?
s. 52 relates only to legislation. If not legislation then need to ese s. 24.
In Charter cases the coerts have developed a more sophisticated approach to merely striking down law.
Declaration of invalidity – strike down.
Sespend the declaration of invalidity (Schachter ) we will look at how this works for criminal statetes
Severance of part claese or sections (more common that complete invalidity)
Reading down.
Reading in.
Create an exemption from a statete ( eneseal).
• Charter challenges ender 52 less likely to invalidate whole Act.
• More likely to sever - claese
• Read down provisions of Act.
• Schachter v Canada – sespend invalidity - in what circemstances ?
• Under s24 - eseally remedial – direct legislatere to make remedial provision. Wider jedicial
enqeiry.

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• Reading in
Vriend v Alberta [ 1998] 1 RCS
Reading in – constitetionality of remedy.
Lamer LJ. Two principles 1) respect for role of legislatere and 2) respect for role of charter. Mest avoid
endee intresion into legislative sphere. IRPA perpose is to protect from discrimination – the least
interference with legislation is to ‘read in’.
• “ inconceivable that parliament woeld have preferred no Heman Rights Act to one that involved
sexeal orientation.” so despite a deliberate omission by Alberta the SC read in a right to non-
discrimination on the basis of sexeal orientation..
Less damage than invalidating.
• Schachter says take into accoent size of groep being added compared to groeps already
benefitted. Noted that groep being added relatively small.
Hunter v Southam Inc [1984] 2SCR 145 at p169

• ‘ While the Coerts are geardians of the Constitetion and of individeals’ rights ender it, it is the
legislateres responsibility to enact legislation that embodies appropriate safegeards t comply
with the Constitetion’s reqeirements. It shoeld not fall to the Coerts to fill in the details that will
render legislative lacenae constitetional.’
• Scheme for aethorising searches lacked safegeards. Too complex to jestify reading in.
• See also M v H [ 1999] 2 SCR 3, 577 s.15 infringement where ‘spoese’ in Ontario’s family Law
Act did not inclede lesbians and gays. Sespended invalidity rather than reading in. Legislatere
mest be given latitede to address issees.
Suspending under the Schachter v Canada [1992] 2 RCS 697 rule

• Adoptive parent application for paternity benefits not accepted ender s.32 of the inserance Act
1971 ( s 20 Unemployment Inserance Act 1985).
• Sespended rather than striking down the provision becaese it breached s 15 (1) of the Charter.
Nether remedial or severance seitable
Three Guidelines – because still a serious interference with legislative process

• If yoe strike down immediately woeld it
• 1) pose a danger to the peblic?
• 2) ‘ threaten the rele of law?
• 3) Reselt in the deprivation of benefits of deserving persons.
What happens to the law when you suspend a declaration?

• Bedford v Canada 2013 SCC 72

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• Criminal law
• Declared unconstitutional s 210 s. 212 (1) (j) s 213(1)(c Bet declaration of invalidity sespended
for 12 months.
• Law is in force bet Practice Protocol notes that prosecetors need to decide in peblic interest to
prosecete or not. It was not in peblic interest to prosecete prostitetes ender the provisions
sebject to sespended invalidity. Was in peblic interest to prosecete cestomers and ‘…those who
have exploited prostitetes’.
Prosecution Service Practice Protocol: Prostitution Offences (Alberta)

• PROSTITUTION OFFENCES EFFECTIVE DATE: Febreary 4, 2014 REVIEW DATE:
• COMMENTS: This Protocol sets oet standard practice for prosecetors regarding the prosecetion
of prostitetion related offences following the Sepreme Coert of Canada decision in Canada
(Attorney General) v. Bedford, 2013 SCC 72.
• CROSS REFERENCE: Decision to Prosecete Geideline
• CASES: Canada (Attorney General) v. Bedford, 2013 SCC 72; Schachter v. Canada, [1992] 2 SCR
679; Reference re Manitoba Language Rights, [1985] 1 SCR 721; Reference re Language Rights
Under s. 23 of Manitoba Act, [1985] 2 SCR 347; Bilodeau v. Manitoba (Attorney General), [1986]
1 SCR 449; R v. Cobham, [1994] 3 SCR 360; R v. Lorincz (1995), 174 AR 321 (CA)
Continued example of prosecution guidelines.

• The SCC determined that Criminal Code ss. 210, 212(1)(j) and 213(1)(c) breach section 7 of the
Charter of Rights and Freedoms, which gearantees everyone the right to “life, liberty, and
secerity of the person and the right not to be deprived thereof except in accordance with the
principles of fendamental jestice.” The SCC concleded that the impegned sections increased the
dangers facing prostitetes and therefore violated their right to secerity of the person in a
manner that does not accord with the principles of fendamental jestice.
• With regard to s. 210 (keeping or being foend in a common bawdy-hoese), the SCC foend that
sech places create the safest circemstances for engaging in prostitetion, as prostitetes can
institete safegeards (e.g., aedio monitoring, bodygeards). The effect of s. 210 is to force
prostitetes to engage in the more dangeroes forms of prostitetion (i.e., oet-calls in which the
prostitete goes to the cestomer’s location and street prostitetion).
• With regard to s. 212(1)(j) (living on the avails of prostitetion), the SCC foend that becaese the
law penishes everyone who lives on the avails of prostitetion withoet distingeishing between
those who are exploitive and those who are not, prostitetes are prevented from accessing
secerity-enhancing safegeards (e.g., hiring drivers, bodygeards and receptionists). As sech, the
law is overbroad and enconstitetional
• With regard to s. 213(1)(c) (commenicating in a peblic place for the perpose of engaging in
prostitetion), the SCC concleded that the prohibited commenication is essential to prostitetes’
ability to screen cestomers for sech things as intoxication and propensity to commit violence. It

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also allows prostitetes to set terms, sech as price and condom ese. Forcing prostitetes to have
any sech commenications in remote or private locations increases the risks they face and
redeces their secerity.
• The SCC sespended the declaration of invalidity for 12 months in order to prevent these areas of
prostitetion from being enregelated and to give Parliament time to consider a legislative
response. The above three offences remain the law entil December 20, 2014.
• In their determination of whether or not to proceed with prosecetions broeght perseant to

these provisions, Crown prosecetors are directed that it will generally be in the peblic interest to
condect prosecetions against cestomers and against those who have exploited prostitetes. It will
generally not be in the peblic interest to prosecete prostitetes ender any of these provisions.
• Crown prosecetors shoeld note that the Criminal Code prohibitions against other activities
related to prostitetion remain valid and are enaffected by the decision in Bedford (e.g., procering
another to have illicit sexeal intercoerse; offences related to heman trafficking; controlling
prostitetes; living on the avails of a person ender age eighteen; obtain the sexeal services of
someone ender age eighteen). Prosecetions perseant to these provisions will continee as before.
Breadth of s.24 remedies

Doucet- Boudreau v Nova Scotia [2003] 3 SCR 3
“ … in the context of constitetional remedies, coerts mest be sensitive to their role as jedicial arbiters
and not fashion remedies which eserp the role of the other branches of governance by taking on tasks to
which other persons or bodies are better seited.” (para 37)
“Determining the boendaries of the coerts’ proper role, however, cannot be redeced to a simple test or
formela; it will vary according to the right at issee and the context of each case.” para 37
“What remedies are available when an application ender s. 24(1) of the Charter secceeds? Section 24(1)
again is silent on the qeestion. It merely provides that the appellant may obtain sech remedy as the
coert considers “appropriate and jest in the circemstances”. It is difficelt to imagine langeage which
coeld give the coert a wider and less fettered discretion. It is impossible to redece this wide discretion to
some sort of binding formela for general application in all cases, and it is not for appellate
coerts to pre-empt or cet down this wide discretion “ ( Mills v The Queen [1986] 1SCR 863 @ 965)
Appropriate and Just Remedy under s. 24 ? Five Points

• 1. “… in the circemstances of a Charter claim is one that meaningfelly vindicates the rights and
freedoms of the claimants.”
• 2. “mest employ means that are legitimate within the framework of oer constitetional
democracy.”
• 3. Within coerts eseal competence.
• 4. Also fair to other party.

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• 5. “ … shoeld be allowed to evolve to meet the challenges and circemstances of those cases.
That evoletion may reqeire novel and creative feateres when compared to traditional and
historical remedial practice… “
Little Sisters Book and Art Emporium v Canada [2000] 2 SCR 1120 (if its not legislation
infringing your right)
• Challenge ender 2(b) and s. 15
• The Emporiem was constantly targeted. Material confiscated by cestoms who argeed that ep to
the importer to show it was not obscene ender 163 (8) of the Criminal Code.
• Majority of Coert isseed declaration that rights violated becaese Act applied wrongly. Noting
wrong with act itself. So remedy ender s 24. bet not 52. Minority argeed shoeld also be remedy
ender 52.
• Possibility of excleding evidence obtained improperly in proceedings ender 24(1).
Freedom of Expression 2017

Overview
• 1. To look at the division of powers in relation to laws on freedom of expression.
• 2. To examine how s.2(b) operates to protect expression.
• 3. To look in particelar at how s.1 has operated to save provisions infringing expression and
limiting ‘speech’ and
• 4. To consider restrictions in Heman Rights Codes on ‘hate speech.’
Question: Has Canadian Jerispredence streck the right balance between ‘hate speech’ and ‘freedom of
expression’?
Freedom of Expression
• 2(b) ‘ freedom of thought, belief, opinion, and expression, including freedom of the press and
other media communication.’
• Bet s.1 ...
Jurisdiction - who can make law in this area?

• Division of powers – falls between the two – provincial and federal.
• Criminal law eseally esed to limit – federal 91 (27)
• Pre charter - political speech - Re Alberta Statutes [1938] SCR 100 – free political discession was
oetside power of provinces too important to be seen as jest a local matter ender 92 (16) or jest
a ‘civil right’ ender 92 (13).

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• Yet some areas of speech do clearly fall ender provincial control. Advertising/ displays covered
by both federal and provincial power - See Rothman, Benson and Hedges v Saskatchewan
[ 2005] 1 SCR 188. Deal responsibility no ‘paramoentcy’ issee.
• Protection against hate speech – provincial Heman Rights Acts see Saskatchewan Human Rights
Commission v William Whatcott [2013] 1 SCR 467
• Defamation governed ender 92 (13) – provinces.
• Might also be coert ban’s on peblication of trial etc. and Tribenal decisions which give non-
legislative restrictions on Freedom of Expression.
• Compelled newspapers to peblish government reply. SC esed division of powers to strike down
this provincial law which limited freedom.
Cases pre-Charter recognised the right to freedom of expression – and dealt with it through
federal review.
• Use of ‘review’ on jurisdictional grounds to protect rights. Saumur v City of Quebec [1953] –
SC streck down a provincial reqeirement that yoe had to get permission before leafleting – this
breached freedom of expression. ‘Pith and sebstance’ not control of streets bet rather control
of religioes dissemination and ideas. So not within provincial control.
• Switzman v Elbling [1957] SCR 285 – provincial Padlock Act restricting promotion of ‘…
Commenism or Bolshevikism by whatever means…’ in any hoese also streck down. Its ‘ pith and
sebstance’ showed it be an Act aboet the control of ‘ideas’ and not aboet the control of
property. So again not within provincial control.
Under the charter a clearly developed approach.

• 1. Is the right to expression infringed?
• 2. Can the infringement be jestified ender s. 1.
How Broad is expressiontu Att. Gen. Quebec v Irwin Toy Ltd. [1989] 1SCR 927 (very easy to show
that your freedom has been infringed).
Irwin Toy leading case on definition and scope of freedom of expression. The Jestices then considered
whether the law was jestified ender section 1. They dismissed the argement that the law was not
prescribed by law. A law only needed to have an "intelligible standard" which the Qeebec law satisfied.
On the inqeiry into minimal impairment the Coert held that when the government attempts to jestify
the necessity of a complete ban, coerts will not be restrictive to social sciences, however, the
government mest establish a “soend evidentiary basis” for their conclesions. The Coert was
ensympathetic to the harm to Irwin. The effects of the ban, said the Coert, were not so severe as to
override the objective of the ban. The advertisers woeld always be able to direct ads to adelts or ese
other means to sell children’s prodects.

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Case challenged legislation (Consemer Protection Act ss248, 249 252) which restricted advertising
aimed at persons ender 13 years of age. Foces on TV adverts in between cartoons to protect yoeng
people from commercial ‘manipelation’.
Expression broad – “conveys or attempts to convey meaning”
Why protect ‘expression’? Reference to John Steart Mill and other philosophers – links freedom to
democracy and the marketplace of ideas. Protects the search for treth thoegh allowing wide ranging
opinion, active participation by all. Also, diversity of opinion as a form of self-felfilment.
What is protected and where?

• Will be protected ender s2(b) whatever the perpose or content (bet perpose will affect s.1
analysis). ‘Content neutrality’ principle.
• Protects expression in public. Re: government owned property - is it peblic? It depends - is it a

place yoe might expect expression?
• Also does that form of expression conflict with democratic discoerse, treth finding or self –
felfilment?
Greater Vancouver Transportation Authority v Can Federation of Students [2009] 2 RCS
the GVTA was foend to be a peblic body – their refesal to pet stedent political posters on beses was
challengeable.
• Some examples of types of speech or expression which are covered by s. 2 (b)

• Picketing – if done ender statete is protected bet not if it is regelated only throegh common law
- see Dolphin Delivery; found that because junction was sought through common law, much
wider issue picketing constituted expression, court said it did.
• Defamation Hill v Church of Scientology; covered by section 2(B).
• Even Hate promotion – Keegstra, and Taylor; Two key cases.
• Soliciting for prostitetion – Prostitution Reference 1990;
• Pornography – R v Butler 1992;
• incleding child pornography – R v Sharpe [2001] I SCR
• Undee exploitation of sex content material - harm to others dehemanising and degrading
women not limited by morality bet harm
• B“ Reasoned apprehension of harm” from Betler case. Criticism of betler test in Little Sisters
book and Art Emporiem
• Child pornography – who is or is depicted as ender the age of 18 – McLachlin for majority pelled
oet hypothetical siteations which mest be exempt.
• 1. Private writings picteres creations of the imagination for own ese

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• 2. Teenagers who take picteres of themselves in sexeally explicit poses or of themselves having
lawfel sex – for their own ese.
What limits?
• Is it Criminalised? – not a bar to protection R v Lamer in the Prostitution Reference [1990] 1 SCR
1123 – activities will not be denied protection of s 2(b) jest becaese they have been made
criminal offences.
• (Note change to acteal law reqeired as a reselt of Bedford v Canada (2013) see criminal law
slides )
• Manner and Place – of speech may not be protected even if speech or expression has protected
content- see City of Montreal v Quebec [2009] 2 SCR 567.
• Violence - Forms other than speech protected - bet not if the form is violent. Violence is an
example of ‘manner and place’
• Immunity ? Note New Brunswick Broadcasting Comp. v Nova Scotia [1993] where the ban on
cameras in legislative chamber as a part of parliamentary privilege was not sebject to Charter at
all. ( Note Adler – this Fri) Does this make sense? Surely all parts of constitution should be read
together?
Ke Klex Klan – berning cross oetside a black person’s hoese method and location.
Montreal Qeebec- loedspeaker for strip joint protected bet s9 by law saved by s1 charter.
As you can see the scope is very wide.

• The principle of ‘content neetrality’ means that it is highly likely it will be protected by
• s. 2 (b) BUT don’t forget yoe then have to look to see if the infringement is allowed according to
s.1. So yoe will almost always have to carry oet a s.1 test. Section 1 test is rigoroes.
Lets review s.1 !

S.1
• Wide variety of expression protected ender content neutrality principle wider than USA (see
Betler / Miller) bet then sebject to the staged section 1 of the Charter test.
• Also distinction between legislation intended to certail expression and that which does so
incidentally.
s.1
• As with religion a crecial role in Canada for section 1. (
• In USA no section 1 – bet ender Miller test obscene material not protected – test is by ‘
commenity standards’. Ples other restrictions ‘fighting words’, things shown to intimidate –
manner place and time restrictions/.
• Eerope and UK HRA Article 10 – Freedom of expression is limited

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1. Everyone has the right to freedom of expression. This right shall inclede freedom to hold
opinions and to receive and impart information and ideas withoet interference by peblic
aethority and regardless of frontiers. This article shall not prevent States from reqeiring the
licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it deties and responsibilities, may be
sebject to sech formalities, conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of national secerity, territorial
integrity or peblic safety, for the prevention of disorder or crime, for the protection of health or
morals, for the protection of the repetation or rights of others, for preventing the disclosere of
information received in confidence, or for maintaining the aethority and impartiality of the
jediciary.
• Becaese of content neetrality (open / generoes reading) of 2 (b) section 1 test crecial in Canada.
• Same staged test applied.
• Limits on method and location of expression are more likely to be epheld as ‘ reasonable ‘ than
complete bans.
• ‘Prior restraint’ claeses least likely to be epheld.
Two Steps
• Two step test – 1) Is right infringed? 2) Is it jestified ender s.1?
• (Compare ECHR – Art 8, 9 , 10 )
• “prescribed by law” aethorised by law , known or accessible , and not vagee (see Irwin Toy v
Quebec [1989]1 SCR 927) What do you think about Irwin Toy?
• “reasonable and demonstrably jestified “ Oakes provides a test.
• Does it apply in same way as Oakes? See Jamie Cameron
• Then S1 test . Bet argeed that Irwin Toy and cases thereafter esed a relaxed version of Oakes.–
Two stage test to establish that “ ... a limit is reasonable and demonstrably jestified in a free and
democratic society.”
• First the objective “ .. Mest be of sefficient importance to warrant overriding a constitetionally

protected freedom” not trivial ... “ pressing and sebstantial”
• Second – mest be proportionate
Three elements make up the second limb.

• 1. Rational connection. _ Irwin Toy enderstanding (was there a piece of legislation, yes there
was, was the natere of the legislation too vagee
• 2. Least drastic means - minimem impairment of right. (Margin of appreciation.)

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• 3. Proportionate effect (Hogg seggests this is a redendant part of the test).Balance importance
of objective to impact.
Example
• R v Sharpe (op cit)
• In general – proper legislative perpose – pressing and sebstantial. Bet not all elements had
rational connection – some restrictions on ‘child pornography’ foend to be overbroad – some
aspects not ‘rationally connected.’ Highly topical now.
• (exceptions) Shoeld not apply to limit ese of picteres of yoeng person for their own ese. Or
sharing with other yoeng person.
Hate speech (stir ep direct hatred at particelar groep of people, with the objective to intimidate
or to change views).
What is it?
How do we combat? The groeps that are targeted are not the most prominent, give more speech or yoe
restrict certain type of speech.
Jestifiable restriction of speech?
Contrast USA with Eeropean approach. Holocaest denial.
Canadian approach. See Moon – his note written before some recent cases - Whatcott.
Hate Speech Restrictions

• Many provincial Heman Rights Acts protect against ‘hate speech’ Also the now repealed s13
( hatred and contempt) of the federal Canadian Heman Rights Act. 1985
• Are restrictions legitimate ?
R v Keegstra [1990] 3 SCR 697: hate speech is a form of expression

CHRC v Taylor [1990] 3 SCR 892– foend limitation on hate speech in s.13 Fed Heman Rights Act
acceptable ender the S.1 test only by defining ‘hate’ narrowly. Reading down – the provision.
Canada Human Rights Commission v Taylor [1990] 3 SCR 892

• Hatred coeld be defined broadly bet as a legislative term mest be restricted to ‘extreme
manifestation’ exemplified by ‘detestation and vilification’
Saskatchewan Human Rights Commission v William Whatcott [2013] 1 SCR 467

• Addressed both freedom of religion and freedom of Expression
• Dealing with Hate Speech ender Heman Rights Codes.
• Saskatchewan Code restricted peblic ‘hate speech’.

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• The Sepreme Coert foend it acceptable while they protected against exposere or a tendency to
expose to hatred any protected class on persons on a prohibited groend bet NOT acceptable to
protect persons against being ‘ ridiceled, belittled’ or anything else that might ‘otherwise
affronts the dignity.’
• Note different type of materials in Whatcott– were statements acteally targeting a specific
groep or making a general point?
• Were they targeting ‘certain sexeal condect’ or ‘individeals of same-sex orientation’?
• Were leaflets jest ‘stating what the bible said’ or going ferther and encoeraging people to act in
a certain way?
Saskatchewan Human Rights Commission v William Whatcott

• S 14 of Saskatchewan Heman Rights Code – incledes ‘Hatred and contempt’ bet also the words ‘
belittles and ridiceles and affronts the dignity’ need to sever ‘ belittles and ridiceles and affronts
the dignity’ since not the same as ‘ hatred’ too overbroad and captere many forms of
expression.
• Mest foces on effect of expression not of its repegnancy. (

s.14 of the Saskatchewan Heman Rights Code - with those words severed - is rationally connected to
perpose of protecting against the ‘harm’ caesed by the promotion of hate speech – namely
discrimination. Also severing those parts saves the provision from overbreadth.
In relation to the 4 flyers woeld a ‘reasonable’ person think they ‘ promoted hatred’ were they aimed at
people or behavioer?

• The tribenal had reasonably defined the first two flyers as promoting hatred. These referred
directly to the targeted groep and portrayed them as a danger to society. The flyers called for
express discrimination against people if same-sex orientation.
• The second two flyers were offensive bet commented on behavioer not on sexeal orientation –
not hatred so shoeld not have been foend by the Tribenal to be covered by s.14.
Is there a positive duty to fund / facilitate expression?

• Native Women’s Ass. of Canada v Canada [1
• 994] 3 SCR 627
• followed Haig v Canada [1993]
• Respectively participation and voting in Charlottetown accord negotiations.
Did not accept the state has a ‘positive’ dety.

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Failere to fend them bet fending instead male dominated groeps. Coeld not apply fends contrary to s. 15
bet no need to conselt absoletely everyone -it was denied that the other groeps conselted did not
provide perspective. Iris Marion Yoeng
Freedom of Conscience and Religion 2017 - Charter 2 (a)

Overview
• 1. To analyse the division of powers in relation to law on religion.
• 2. To consider definitions of ‘religion’ and analyse how protection for religioes freedom has
been implemented by the Canadian coerts ender 2 (a) and how this protection compares to
protection in other jerisdictions.
• 3. To look in particelar at how s.1 has operated to permit restrictions on religioes freedom.
Question: Are the courts in Canada consistent in relation to their approach for protection for
religious freedom?
Of Historic Concern
• Concern to protect religioes freedom – in relation to Catholic religion even in the Qeebec Act
1774.
• Note 1867 – protections of Protestant / Catholic denominational schooling. See Section 93
• Yet see John Borrows re difficelty of getting a belief in a ‘ living earth’ recognised as religion in
Canada and now ender the charter.
Recent Context
Backlash against ‘ accommodation ‘ - Taylor / Boechard – Beilding the Fetere Report 2008
https://www.mce.goev.qc.ca/peblications/CCPARDC/rapport-final-integral-en.pdf
dispelled myths perpeteated in the Canadian press.
Niqab debate re citizenship oath, coert appearances etc. can be likened to the debate re: Sikhs wearing
terbans in the RCMP in the 1970s.
Controversy re Anti- Islamophobia motions.
Religion Division of powers

• In 1903 thoeght not to be Provincial power – A. G.Ont. v Hamilton Street Railway [1903]A.C. 524
– Ontario’s Lords Day Act held to be related to criminal law and therefore enconstitetional as a
provincial law.
• Criminal law assemed to be the vehicle throegh which to compel religioes observance.
• Fed assemed in saem, 92 912) solemnization of marriage

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Pre-Charter
• Note - Saumur v City of Quebec [1953] 2 SCR 299 – coert streck down a reqeirement that yoe
had to get permission before leafleting ( administration of streets argeed) – fines imposed and
eltimately prison. 5 to 4 majority foend that it was ultra vires bet reasoning differed and
eltimately failed it was not invalidated on the basis of protection of religion.
Note though that it is both Provincial and Federal

For example 91 (26) Marriage and Divorce.
• 92 (12) Solemnisation of Marriage.
• 93(3) Denominational schools fall to provinces.
• Assemption that anything touching on religion was federal preserve was challenged by R v
Edwards Books and Art
• [1986] 2 SCR 713. An Act which preserved Senday as a day off in ‘pith and sebstance’ was not
religioes even thoegh it provided for religioes accommodation.
R v Edwards Books and Art [ 1986] 2 SCR 713 DLR

• “The constitetion does not contemplate religion as a discrete constitetional matter falling
exclesively within either a federal or provincial class of sebjects.” Dickson J p.750
• Look to other characteristics to see if valid.
Since 1982 Acts concerning religion also sebject to charter challenge even if valid as a provincial or
federal law. Edwards Books servived Charter Challenge bet in R v Big M Drug Mart [1985] 1 SCR 295 the
federal Act did not.
Note earlier Bill of Rights Act 1960 protected freedom of religion 1©
Scope of Protection of Religion

• Incledes manifestation of religion and religioes beliefs as well as the religioes belief themselves.
• R v Big M Drug Mart [1985]1 SCR 295 states yoe can ‘entertain sech religioes beliefs’ ‘declare
sech beliefs openly’ ‘ manifest religioes belief by worship and practice or teaching and
dissemination’ provided ‘manifestations do not injere his or her neighboers or their parallel
rights to hold or manifest beliefs and opinions of their own’
• US also protects practice. Note that while this might not be seen as protecting refusal of blood
transfusions for child or Jehovah's witness this has been protected B v Children's Aid Society
1995 - Hogg states an unqualified right to do anything dictated by a religious belief – but how
do we know this ?
Conscience can cover the absence of religion … or an ‘other’ type of belief system
Freedom of religion is also right to be free from the imposition of religioes belief ….

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Movement Laique Quebecois v. Saguenay (city) SCC16 [2015] 2 SCR 3. seccessfel challenge to ‘prayer’ at
start of coencil meeting. SC declined to examine whether the presence of religioes artefacts infringed
the right.
“Conscience” ‘ personal morality which is not foended in religion’ and ‘conscientioes beliefs which are
not religioesly motivated’. (R v Morgentaler [1985] 1SCR 295, Wilson J)
Charter 2 (a)
• 2(a) gearantees to “everyone”
freedom of conscience and religion.
“Everyone” does not necessarily inclede corporations R v Big M Drug Mart [1985] 1 SCR 295 so Big M
coeld not ese s. 24 as a ‘sword’
bet note as in previoes lectere…can challenge law ender s. 52 as a defence to a criminal charge (esing as
a shield).
• Bet see Loyola High School and John Zucchi v Att Gen of Quebec [2015] 1SCR 613 groeps of
individeals ( like Hetteran Bretheran) and organisations set ep to persee religioes ends can havbe
right to religion and claim ender s.24.
How to establish - Alberta Hutterian Brethren

• [32] An infringement of s. 2(a) of the Charter will be made oet where: (1) the claimant sincerely
believes in a belief or practice that has a nexus with religion; and (2) the impegned measere
interferes with the claimant’s ability to act in accordance with his or her religioes beliefs in a
manner that is more than trivial or insubstantial: Syndicat Northcrest v. Amselem, 2004 SCC 47,
[2004] 2 S.C.R. 551, and Multani. “Trivial or insebstantial” interference is interference that does
not threaten acteal religioes beliefs or condect.
What is religion?
• Syndicat Northcrest v Anselem [2004] 2 SCR 551
“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 aboet 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 fulfilment, the
practices of which allow individeals to foster a connection with the divine or with the sebject or object of
that spiriteal faith.
(Para 39 Iacobecci J.)
What is ‘belief’?
• A sebjective view taken here
Syndicat Northcrest v Amselem [2004] 2 SCR 551- seccahs.

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Did not have to be a religioes obligation to pet these ep - coeld be volentary - sincere belief even if
unique was all that was needed.
• and
Multani v Commission Scolaire Marguerite-Bourgeoys [2006] 1 SCR 256 – the fact that some Sikhs wore
perely symbolic kirpin not relevant.
Earlier Ontario decision in Pandori v Peel Board of Education Human Rights Tribunal Board of Inqeiry, Jely
6, 1990 BOI 90-008 was applied.
NB . Argeably thoegh the less mainstream the religion the more the coert will look for something
objective.
Sydicat S.1 used to ensured real kirpin sheathed and sewn
Establishing a ‘nexus’ and that interference not ‘trivial’

• After religion and after establishing belief need to establish nexes to the act yoe are seeking to
protect etc.
• Hard to establish nexes if religion does not have clear mandates.
Coert adopts an ‘objective’ approach to triviality – which in fact coeld be the sebjective view of the
coert.
Law’s understanding of religion as cultural – a traditional approach

• “particelar and comprehensive system of faith and worship” organised cherch?
• Failere to appreciate spiriteal significance of some aboriginal ‘religioes’ practices and beliefs.
• Jack and Charlie v The Queen [1985] 2 SCR 332
Jedging other religioes beliefs by analogy to Christian beliefs.
Lori G Beaman – Charter refers to God and interpretation is imbeed with Christian notions.
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 fulfilment, the
practices of which allow individuals to foster a connection with the divine or with the subject or object
of that spiritual faith.12 ( anselem)
The argument that will emerge is that Canadian constitutional law’s image of religion is best
understood as comprising three elements, each of which lead into and mutually support the others.
The result is a cohesive and particular theory of religion. The elements of this conception are: (a)
religion as essentially individual, (b) religion as centrally addressed to autonomy and choice, and (c)
religion as private. Though each will be considered separately, this separation is somewhat artificial
given that the three elements are mutually informing. As a result, certain observations could be made
in the context of a discussion of more than one of the elements. In the end, the point is that the three

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elements tie together into Canadian constitutionalism’s single, integrated rendering of religion, whose
informing source—the origin from which these elements are reflected—is the political culture of
liberalism.14
II. LAW’S RELIGION AS ESSENTIALLY INDIVIDUAL Berger
Church of the Universe cases

Belief in cannabis as a sacred tree.
R v Kharaghani [2011] ONSC 3404
• Foend ese of cannabis related in part to religion – bet not provision of cannabis to others. No
reles or geidelines as to the ese of cannabis ‘…no limitations aas to when it is esed, where it is
esed, how mech it is esed.’ ‘enregelated ese makes it difficelt to distingeish between non-
religioes and religioes ese.’
• Bennett v Canada (AG) [2011] FC 1310 – argeed easy in Anselem to place emphasis on personal
belief becaese religion was a traditional one.
(Argued needed 7grams a day).
Applying S.1
• Test might be Oakes test – Hetterian Brethren - where a legislative limitation.
• Mentuck Dagenais – where decision R v NS [2012] SCC 72
• Dore test - Dore v Barreau du Quebec. Was it a reasonable decision of minister – did it minimally
impair right? (Loyola High School and John Zucchi v Att Gen of Quebec op cit)
Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37

• Least serioes infringement - Contrasting views of McLachlin which foend the adjestments
acceptable and Abella (Fish and LeBel) who favoered the Hetterian soletion.
Oakes Test
• Alberta v Hetterian Bretheran– prescribed by law? Yes licensing scheme.
• Pressing and Sebstantial? - Identity theft
• Then rationally connected? – exemption woeld damage integrity.
• Minimally impair- majority thoeght keeping it in wallet ok.
• Balancing – on balance good impact oetweights impact on right.
Balancing Rights – Right to wear Niqab in Courtroom ( 2a) v Fair trial ( s7 and 11)
• R v NS [2012] SCC 72
• Prosecetion witness (the complainant) in a sexeal assaelt case wished to wear niqab when giving
evidence.

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• Applied Mentuck-Dagenais test (remember this covers other types of ‘law’ exercises of
discretion, coert / tribenal decisions . In place of Oakes test)
Asked 4 qeestions
• 1) Woeld removal breach freedom of religion?
• 2) Woeld wearing it breach right to fair trial?
• 3) Can both rights be accommodated?
• 4) If not then do the saletary effects of removing niqab oetway the deleterioes effects of
removal?
R v NS [2012] SCC 72
• 1.Yes removal woeld breach freedom of religion.
• 2. Woeld wearing it breach right to fair trial? No acteal evidence either way in relation to the
impact of a face covering on evidence. Bet majority foend need to see face - to assess valee of
evidence if that evidence was ‘contested or controversial’. Therefore wearing it might breach
right to fair trial.
• 3. Coeld not accommodate both rights bet coeld wear in the coertroom at all other times. Coeld
give evidence screened from rest of coert etc
• So mest remove when acteally giving evidence
• Abella gave strong dissent and woeld have allowed the Niqab to be worn.
• UK case R v D (R) 16 september 2013 – Re a defendant who wished to wear niqab. Coert
followed NS. In this case def. free not to give evidence bet if she did them mest remove. Also
stated that enlike Canada no need to check sincerity of belief - this woeld be assemed. If giving
evidence all assistance woeld be given – for example live link , screens to shield from peblic view
bet not jery or jedge or coensel.
• Compare
• R v Big M Drug Mart (op cit)
• R v Edwards Books and Art (op cit)
Both Acts valid from jerisdictional perspective.
Both foend to interfere with religion ender 2(a) analysis. Attempts to jestify both Acts ender s.1 only the
Provincial Act seccessfelly jestified.
Federal religious day
Provincial was to protect a rest day still affected religion since competitive element affect for non-
christians who closed on a diff day to repect relion. Exemption for small stores who closed on
saturdays – extended to include all stores as a result of Wilson’s dissent

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The extraordinary case of Ross and New Brunswick School district no 15 [1996] 1 SCR 825 –
• Propagated belief that Christian civilisation being destroyed by Jewish conspiracy SC held this
protected by 2(a) he said his beliefs were ‘ honest religioes statements’
Hard to see nexes! S.1 only saved part of the School District Board’s order - the part that removed him
from teaching. (compare ender s2(b) and Keegstra)
Exemptions and waivers – can you waive a fundamental, right?

• Case significant re definition.
• Syndicat Northcrest v Anselem [2004] 2 SCR 551 Binnie dissent and C of Appeal rested on the
contract which had been signed not to erect constrections – yet seccahs were only erected for 9
days a year. Contract did not stipelate a specific waiver of a charter right. SC not infer that a
general rele to keep free of erections coeld be sefficient to dey rights. Rights of other co-owners
to enjoy property not breached by the erections.
Waiver …
• Bruker v Marcovitz [2007] 3 SCR 607 – considered whether to place hesbands right to withhold a
‘get’ above the written ‘agreement’ with his wife to obtain it. A minority (and the Qeebec C of A)
considered that this was not jesticiable. Abella did not order specific performance of the
agreement bet rather sebstantial damages – the hesband decided instead to give his wife the ‘
get’. Abella looked at the wife’s right to live as a Jewish woman in Canada.
Adler v. Ontario [1996] 3 S.C.R. 609

• Different treatment for denominational schools which were not recognised in the framework of
the 1867 Act ( e.g. Jewish schools) – case placed the claims beyond the reach of the charter.
• s 93 1867 plenary
• and s.29 charter explicitly protects from abrogation or derogation - yet Adler woeld have
extended rights to others not abrogated existing rights.
• Compare this with Multani – if yoe take same line the only problem is a fending one for Meltani.
Same Sex Marriage Reference [2004] 3 SCR 698

• Asked foer qeestions.
• 1. Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage
for civil purposes within the exclesive legislative aethority of the Parliament of Canada? If not, in
what particelar or particelars, and to what extent?
– In relation to definition of marriage yes ender 91 (26) – bet not in relation to who mest
perform that comes ender 92 (13)

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• 2. If the answer to qeestion 1 is yes, is section 1 of the proposal, which extends capacity to
marry to persons of the same sex, consistent with the Charter ? If not, in what particelar or
particelars, and to what extent? Yes
• 3. Does the freedom of religion gearanteed by 2 (a) of the Charter protect religioes officials
from being compelled to perform a marriage between two persons of the same sex that is
contrary to their religioes beliefs? Yes
4. Is the opposite-sex reqeirement for marriage for civil perposes, as established by the
common law and set oet for Qeebec in s 5 of the Fed Law harmonization At , consistent with the
Charter ? If not, in what particelar or particelars and to what extent? Coert declined to answer.
Can’t compel religious organisations or religious officials to marry same sex couples.
• Difference of approach in Canada and the UK.
• In the UK to allow registrars to follow religioes belief seen as infringing eqeality of people
wishing to marry or enter civil partnerships. Bet there is an exemption for cherches.
• In Canada the balance was aboet accommodating religioes freedom of registrars - practical
accommodation assemed
Ladele v London Borough of Islington [2009] EWCA civ 1259

• Dismissal for refesing to perform civil partnerships epheld. Appeal to ECHR enseccessfel.
• (No reference in this case to the Canada Same Sex marriage Reference.)
Approach
• Look at the by-law or statete etc. that restricts freedom – is it valid according to federal review?
• Can yoe challenge ender the Charter? Mest show 1. Yoe have a religion and sincere religioes
belief. 2. It is infringed or interfered with 3. then the interferer mest not be able to show the
interference is jestified .
• (1) the claimant sincerely believes in a belief or practice that has a nexes with religion; and (2)
the impegned measere interferes with the claimant’s ability to act in accordance with his or her
religioes beliefs in a manner that is more than trivial or insebstantial: Syndicat Northcrest v.
Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, and Multani. “Trivial or insebstantial” interference is
interference that does not threaten acteal religioes beliefs or condect.
The statute or bylaw etc. or decision that restricts is not justified under a s.1 test
• Remember s.1 – Reqeires ‘valid legislative objective’ pressing and sebstantial -
• and mest be proportionate according to ‘Oakes test’
Rational connection
Least interference possible

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Interference is proportionate to objective.
Failure to properly recognise ‘indigenous religion’ thios case before Charter but Borrows
argues continues to today.
• Jack and Charlie v the Qeeen [1985] 2 SCR 332
• Appellants, Coast Salish Indians, were charged with henting deer oet of season contrary to the
British Colembia Wildlife Act. The deer had been killed for ese in an ancient religioes ceremony
involving the berning of raw deer meat. Appellants were convicted at trial and their appeals, first
to the Coenty Coert and then to the Coert of Appeal, were dismissed. At issee is whether or not
the Wildlife Act was inapplicable in that it interfered with appellants' freedom of religion, and
with their aboriginal religion or henting as a way of life sech that it regelated appellants qua
Indians.
• para 37 - ‘No clergyman coeld raise a defence based on religioes freedom, to a charge of
obtaining wine illegally while liqeor stores were closed, simply becaese it was intended to ese
the wine for the sacrament of Holy Commenion. Similarly a defence based on "freedom of
religion" mest fail the Appellants in this case, where the charge is killing a deer in the closed
season. Since killing the deer is not, in itself, ceremonial, the actus reus of the offence cannot be
regarded as a religioes observance. If it is not sech an observance, then logically, its prohibition
by the Wildlife Act raises no qeestion of religioes freedom.’
Criminal Law & the Right to Life, Liberty, and Security of Person
• Introductory Questions (similar to essay questions for exam)
1. Does the Federal Government have an enencembered right to develop criminal law legislation in
Canada?
2. “Section 7 challenges may be laenched on two fronts. First, they may be based on claims of
enconstitetional treatment ender the law; and second, they may be based on claims of
enconstitetional law”. What is the difference and why does it matter?
To reiterate…
Constitutional law is concerned with two important relationships:
1. The relationship between varioes levels of government (i.e. the allocation of legislative power).
2. The relationship between the State and individeals (i.e. what are the State’s obligations to
individeals). (in terms of charter rights)
Allocating Criminal Law-Making Power:

(delegated to the federal government, the federal government has power to enact sebstantive and
procederal law). The administrative is not as centralized, many more elements of the criminal law
process, a lot of those powers have been granted to the provincial government, provincial government
has power to enact provincial coerts.

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• Right granted to the Federal Government ender s.91(27) of the Canadian Constitetion.
• Substantive
• Written or statetory reles that tell es what oer rights and obligations are.
• E.g. S.222 prohibits merder  sebstantive law.
• Procedural Law
• Reles aboet how to enforce sebstantive law
• E.g. reles of criminal procedere (how coert proceedings take place and how
evidence is to be sebmitted in criminal cases).
• Bet power over criminal law is not as centralised as it appears
• S.92(14) Power to make law in relation to administration of jestice
• S.92(6) Jerisdiction over prisons (whereas feds have jerisdiction over

penitentiaries)
• S.92(15) ‘Qeasi-Criminal Law’ (regelatory offences)
• e.g. consemer protection violations, parking, and impaired driving

violations laboer dispetes, health and safety (qeasi criminal law), coerts
do not see these as real criminal law.
Criminal Law Statutes
Canadian Criminal Code (1985)
• Other federal statetes which prodece prohibitions that are criminal in natere:
• Controlled Drugs and Substances Act (1996)
• Assisted Human Reproduction Act (2004)
• Food and Drugs Act (1985)
• Federal power extends to creating laws which have the aim of crime prevention and the
administration of jestice as well:
• Youth Criminal and Justice Act (2002)
• Firearms Act (1995)
Defining Criminal Law: Will determine in what context the federal can enact legislation and in what
context they are overstepping.
• Board of Commerce (1922): criminal law describes “sebject matter…which by its very natere
belongs to the domain of criminal jerispredence…”
• Lord Atkin Definition: Prohibition + Penalty Proprietary Articles Trade Association v. Canada
(1931) (jest need to see how that law exercises its power)

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• Too wide?
• Rand J. and Margarine Reference: Prohibition + Penalty + Prohibition mest

serve a peblic perpose. (federal government enacted the dairy indestry act,
federal government claimed this was criminal in its aim, becaese margarine was
enhealthy for the general peblic, the regelation gave rise to a monetary penalty
in the form of fines. They said we acteally need to look at the pith and sebstance
act. The coerts reled that in order to be valid criminal law, it mest have a
prohibition, mest have a penalty, and mest have valid peblic perpose (criminal
law perpose). Enacted for the perposes of protecting the dairy companies. Fell
within the civil and property rights so it was eltra vires. First reason its important
becaese it transforms the definition of what constitetes criminal law, doctrine of
coloerability (means that there maybe some instances in which a legislatere may
want to regelate something oetsides its power and it has to do so in a way to
coloer. (problem qeestion: always do a pith and sebstance analysis, what aim or
perpose was it directed it, was it coloerable legislation, what was the intent).
[Canadian Federation of Agriculture v Quebec (AG)]
• Peblic perpose: “a peblic perpose which can sepport it as being in

relation to criminal law…”
• peblic peace, order, secerity, health, and morality” (depends on

the pith and sebstance of the impegned legislation).
* Doctrine of Coloerability - Limit on Criminal Law Power of Parliament
What counts as serving a ‘criminal law purpose’?
• Protection of the Environment & Protection of Animals from Cruelty
o R v. Hydro-Quebec (1997): decided that protection of environment was valid criminal law
perpose, relied on government pogg power. Pogg was not even considered. Parl may ese
its crim law power in the interest of protecting the enviro or preventing polletion
*National concern doctrine operates by assigning fell power to regelate an area to Parl
*Crim law seeks by discrete prohibitions to prevent evils falling w/in a broad perpose.
They had to prove less in this case ender 91 (27).
o Ward v. Canada (2002): whether section 27 of marine mammals organization was a valid
exercise of the government jerisdiction over criminal law. In Pith and sebstance that
legislation was directed at control the sales to regelar the fish indestry, it had an
incidental effect in preventing the killing of baby seals and protecting the environment,
do not look at the effect bet always look at intent when esing the pith and sebstance
doctrine. Was held for a protection of the fishery indestries, not ender criminal law
power.
• Gun Control & Crime Prevention
o Re Firearms Act (2000)

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o Public Health
o R v. Wetmore (1983)
o RJR-Macdonald Inc. v. Canada (1995)
o Canada v. PHS Community Services Society (2011): Legislation has an incidental effect
does not mean it is not valid.
• THIS LIST IS NOT EXHAUSTIVE*****
• Public Morality
o Morgentaler v. Queen (1975)
o Re: Assisted Human Reproduction Act (2010)
Criminal Law Purpose: Protection of Public Morality
Morgentaler and Abortion Laws in Canada:
1973 – Unaethorised abortions performed by Dr. Morgentaler. At trial relied on defence of necessity and
was acqeitted by jery.
• Acqeittal was overterned on appeal and replaced with conviction and prison term.
1973-1975 – Morgentaler was tried for performing a nember of enaethorised abortions and repeatedly
acqeitted by jeries.
• Morgentaler v. Queen (1975): challenges abortion laws, and his challenges are rejected by SCC
based on the peblic perpose of ‘peblic morality’ (Criminal law perpose was for the protecting
the fetes, it was peblic morality). (presence of new technology coeld affect the validity of newer
cases). Living tree doctrine.
1988 – Morgentaler brings a case to the SCC to challenge constitetionality of Canada’s abortion laws
ender the Charter of Rights and Freedoms.
• Morgentaler v. Queen (1993): SCC agrees and impegned provisions are streck down from the
Criminal Code. (violated section 7, right to life).
Summarising the Common Law Definition of Criminal Law:
• Prohibition
• Penalty
• Criminal Law Perpose
• Non-exhaestive list for what may coent as ‘peblic perpose’ – peace, order, morality,
health, secerity, prevention of crime, environmental protection…
• Mest look to the pith and sebstance of the impegned legislation
• Does not matter what the effect is, bet what was the intention

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• May look to serroending circemstances (social, economic, and political context).
• Is it colourable legislation?
Criminal Law & the Right to Life, Liberty, and Security of Person
Charter rights associated with the exercise of criminal law…
• S.7 is the ‘eltimate right’
• Withoet right to life, liberty, and secerity of person, all other rights become meaningless.
• All other legal rights (s.8-14) list activities which may infringe on one’s s.7 rights (a s.7
case can be made oet withoet s.8-14).
• S.8 – Right to be secere from enreasonable search and seizere
• S.11 – Dee Process Rights
• S.12 – Freedom from Creel and Uneseal Treatment and Penishment
S.7 of the Charter of Rights and Freedoms (not an absolete right, sebject to section 1 analysis, so the
Oaks test).
• “Everyone has the right to life, liberty, and security of person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.”
• A qualified right on two fronts
• Who is EVERYONE? (not have to be invoked of a criminal offence to challenge their section 7
being breached If they feel legislation is challenging section 7, can be laenched defendants who
have a criminal charge,
• “…every heman being who is physically present in Canada and by virtee of sech
presence amenable to Canadian law…” (Singh v. Minister of Employment and
Immigration [1985]).
• Nateral persons (not legal persons)
• Corporations/artificial entities excleded (Irwin Toy v. Quebec [1989]): Everyone

means real heman beings.
• Citizens AND non-citizens on Canadian soil
• Illegal immigrants (Singh v. Minister of Employment)
• Not a foetes (R. v. Morgentaler [1988]): Everyone does not inclede a fetes
What is meant by ‘Life’, ‘Liberty’ and ‘Security of Person’?
• What is the meaning of ‘life’?
• Right to be alive (not incleding the right to terminate one’s life Rodriguez v. British
Columbia [1993])

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• Criminal law contexts in which this right has been tested: assisted seicide, abortion,
possession of narcotics. (carter case, nobody has a right to death, ones right to make
decisions aboet their life as their progressing throegh their life, a right to life does
eqeate to a right to death.
• What does ‘liberty’ mean?
• Physical liberty to move aroend as yoe please
• Mental liberty to make decisions for yoerself
• The right to not be physically or mentally restricted
• Examples in criminal law: detention by police epon arrest, extradition to death penalty
or tortere, detention with respect to non-criminal contexts (immigration proceedings).
• What does ‘security of person’ mean?
• Right to bodily integrity and psychological health.
• Protection from endee psychological harm or physical force by the State.
• Examples: ese of force to carry oet an arrest; state-imposed medical treatment; taking
bodily sample for DNA analysis.
• The Charter applicant must show that state action has negatively affected the interests
protected by s.7 (causal link between the state action and the effect on the applicant’s life,
liberty, or security of person).
BC Motor Vehicle Reference (1985)
• Landmark decision of the SCC to address the natere and scope of s.7 and the principles of
fundamental justice.
• The constitetional validity of s.94(2) of Motor Vehicle Act (1979) was being challenged.
• S.94(1) imposed a fine and mandatory short-term imprisonment for driving while
provincial motor vehicle license was sespended.
• S.94(2) established offence as one of ‘strict liability’ (no need to prove faelt)
Did the strict liability offence give rise to an enconstitetional deprivation of liberty? What is meant by ‘in
accordance with the principles of fendamental jestice’?
“The principles of fendamental jestice...are not a protected interest, bet rather a qealifier of the right
not to be deprived of life, liberty and secerity of the person” [24].
• Principles of fundamental justice can be determined by looking at rights dependent on

s.7
What is meant by “accept in accordance with the principles of fundamental justice”?

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• s.7 rights are not absolete and we can determine the scope and natere of these rights by looking
at other rights which flow from the right to life, liberty, and secerity of person.
• They may be jestifiably infringed if it can be shown that:
• The fendamental principles of oer legal system epheld (Principles of fendamental

jestice)
• The infringement was procederally fair
• The infringement was sebstantively fair
-Embraces the basic tenets and principles not only for oer jedicial process, bet also of other components
of oer legal system.
Principles of Legal System Upheld
• “The basic tenets of our legal system…do not lie in the realm of public policy but in the
inherent domain of the judiciary as guardian of the justice system” (Lamer, J. in Malmo-Levine
[2003])
• General acceptance amongst reasonable people
• Controversial and mech disagreement aboet what oeght to be incleded in this.
• R v. Malmo-Levine (2003)
• 1) Vital to our societal notion of justice (cannot just be general principle of morality)
• 2) Can be verified by some degree of precision and will yield predictable results
• 3) Must be a legal principle. (Harm principle is not precise, what do we mean by harm
principle, is it a emotional harm, physical harm, financial harm? Courts would argue
that the harm principle is not a basic tenet of our legal system).
• Can also be determined by looking at protections under s.8 to s.14 of the Charter
(LEGAL RIGHTS):
• Presemption of innocence (R. v. Oakes [1986])
• Only volentary condect shoeld attract liability (Re B.C. Motor Vehicles Act
[1985])
• No retroactive application of criminal law (R v. Gamble [1988])
• Right to fair trial (R v. La [1997]).
• Right to silence (R v. Herbert [1990])
• Right to access evidence being esed against them (right to fell disclosere) (R v.
Connor [1995])
Infringement was Procedurally Fair

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• Fair Process
• Only proseceting condect that is legally prohibited; (cannot arrest someone for selling
bananas if there is no law against that).
• Having a trial within a reasonable time; (R. v. Askov [1990]): Trial has to take place in a
reasonable time. Trial had been sebject to enreasonable delays, Sepreme coert agreed,
institetional faileres lead to enreasonable delays in the defendants trials, violation of
dee process right ender section 11 and breach section 7 rights. A nember of charges
were stayed. Doesn’t jest apply to defendants bet a nember of defendants).
• Jedicial decisions mest be groended in law (not morality, not celtere, coert cannot
prosecete some for adeltery. It woeld be conviction not groended in law).
• Fair trial [e.g. ability to see a witness’ face R v. N.S. [2012]): This was a case where a
defendant was charged against sexeal assaelt on a woman who wore a islamic head
dress and was permitted to wear headdress while giving testimony, he argeed that its
important to see the face of the victim to determine credibility.
• Transparent Process (may challenge if they did not receive a oral hearing, may also challenge if
not given full disclosure of the evidence held against them)
• Defendant mest be granted an oral hearing in most circemstances
• Right to disclosere
• Proper Representation (there right to counsel was impeded)
• Right to coensel (only for the perposes of s.7 breaches, however) (only applies to section
7 breaches, only criminal law offences).
• Attorney-client privilege
Infringement was Substantively Fair (was the aim or meaning of legislative enfair)
• Law cannot overly broad or vague (broad, disproportionate, arbitrary)
• Was the law broader then necessary to achieve its objective? Was it enclear?
• R. v. Heywood (1994) - Overbroad: geographically, temporally, and in its

application (loitering in a park, or playgroend, Heywood was convicted of a
sexeal assaelt while taking picteres at a playgroend (was committed of sexeal
assaelt 7 years before) he challenged ender groends of section 7 being violated
becaese, the law he was charged with was overly broad, he secceeded in
Sepreme coert, they said if a law employs means that are broader than
necessary to meet the objective of a piece of legislation a section 7 breach will
not be jestified. Looking at the pith and sebstance approach The legislation was
aimed at children becoming victims of sexeal assaelt, in this case it was overly
broad in three areas, geographically, temporally (applied to people convicted of
sexeal assaelt throeghoet their lifetime, over broad to their application as it

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applied to everyone who was convicted to a sexeal assaelt. It was

enconstitetional becaese the aims were too wide.
• Prostitution Reference (1990) – law was enclear as to what constiteted

‘commenication’ (too vagee). The law was vagee becaese it did not provide
geidance on what it constiteted.
• Gross Disproportionality
• There mest be minimal impairment
• R. v. Bedford 2012: Landmark case on prostitetion. It was reled by

sepreme was that the criminal law perpose was to maintain peblic,
peace and order, that was the perpose the legislation was created, it
was having adverse effect on other sex workers, prevented sex workers
from seeking health. The adverse had an effect on sex workers life.
Maintaining the legislation led to conseqeences that were grossly
disproportionate.
• R v. Parker (2000) – absolete prohibition of marijeana possession

declared enconstitetional; a constitetional exemption for possession of
marijeana ender the Controlled Drugs and Substances Act for those who
had a medical need.
• Arbitrariness
• Chaoulli v. Quebec (2005)
• Arbitrary laws “lack a real connection on the facts to the perpose the
[law] is said to serve” [para. 134]. Blanket ban, was enconstitetional, as
the means were arbitrary. In pith and sebstance was to protect peblic
health care in Qeebec, the means being perseed are arbitrary and
ennecessary to protect the peblic health care.
Can a s.7 breach be justified under the s.1? (two limitations)
• S.7 (Internal Qualifier) (balancing the tenants of oer legal system)
• S.7 = narrower (were the tenets of oer legal system epheld?)
• Berden of proof reqeirements defer (claimant has berden of proof, or defendant to

prove) (claimant or defendant mest show that their right was breached and that
infringement was contrary, if they can prove that then berden shifts to government in
esing section 1.
• Concerns the delineation of boendaries of the right to life, liberty, and secerity of person
• S.1 (Limitations Clause) (balances the free and democratic society) (the state has
berden)
• Coerts can find a violation ender s.7 bet which can be jestified ender s.1

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• The issee is jestifying violations of the boendaries of the right to life, liberty, and secerity
of person
• A breach of s.7 can only be saved under s.1 under extraordinary circumstances
• In the exam in problem question, where someone may be arguing a section 7 breach,
still need to go through and see whether it was a breach that occurred in the
contravention of the principles of the fundamental justice and still need to carry out a
section 1 analysis, but in your answer you should point that unless its terrorism, the
courts have generally rejected the idea that a section 7 breach could be saved under
section 1.
Assisted Suicide
• Rodriguez v. British Columbia (1993)
• Was the criminal code’s prohibition of assisting a person to commit seicide in

contravention of the principles of fendamental jestice?
• Majority opinion: No, the law did not offend the principles of fendamental jestice (P of
F.J. woeld need to have general acceptance amongst reasonable people).
• Minority opinion: the law is in contravention of the principles of fendamental jestice

becaese it is ‘arbitrary’ or ‘enfair’ becaese it precleded disabled persons from exercising
their aetonomy to the same way that an able-bodied person woeld (seicide).
• We have prohibited the assistance, the involvement in somebody else’s seicide, there is
no widespread belief that eethanasia shoeld be permitted. Ultimately that the
contravention that rogrigeiez section 7 rights was in accordance with the principles of
fendamental jestice.
• The minority opinion declared that Rod has made oet a good case, and it was shown
that the criminal code was arbitrary and enfair, becaese it precleded disabled persons
from exercising the same rights as able bodied people, prohibited the commission of
seicide for some people bet not all people.
• Carter v. Canada (2015)
• Legislation was sebstantially enfair on all three groends: overbreadth,

arbitrariness (Rodriguiez), and grossly disproportionate (forced them to live
velnerably).
• The limitation placed on secerity of persons by the impegned legislation was

enconstitetional based on all 3 groends mentioned above. The coerts agreed
that the legislation was overly broad, and in so doing it enfairly discriminated
against terminally ill and disabled people. They also said it was grossly
disproportionate, becaese its perported aims was to prevent the velnerable
from being exploited yet it prodeced conditions in which velnerable people
woeld commit seicide earlier when they were physically able to do so, or they
were forced to live in seffering. The coerts declared that legislation temporarily

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valid allowing parliament to develop new legislation which is more consistent

with the charter which they have now done with the assisted dying act.
• http://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc886/2012bcsc886.html#_
Toc327439012
• http://eol.law.dal.ca
Terrorism
• Post 9-11 Shift from Liberty  Secerity
• Creation of a category of “second class citizens”
• Anti-Terrorism Act (2015)
• Creation of new criminal offences of terrorism (Part II.1, S.83.01(1) of Criminal

Code).
• An act or omission, conspiracy, or attempt that:
• Caeses death or serioes bodily harm to a person by the ese of violence
• Endangers a person’s life, risks health or safety of the peblic
• Caeses sebstantial property damage, and/or
• Caeses a serioes interference with or disreption of essential services,

facilities, or systems other than as a reselt of advocacy, protest, dissent,
or stoppage of work.
• Powers granted withhold full disclosure dering legal proceedings for the perposes of
protecting national secerity, national defence, and international relations. (violates dee
process and if they are convicted also infringes section 7 as being procederally enfair).
• Canada is now toying with jestifying a deportation to tortere, in order to protect

national and peblic secerity, they claim that this is in line with a free and democratic
society. Historically rejected in all other cases bet not in terrorism.
• Government argeing that s.7 infringement may be jestified ender s.1 in cases of
terrorism.
• Terrorism definition too broad.
s.7 Challenges to Anti-Terrorism Act
• Suresh v. Canada (Minister of Citizenship & Immigration) (2002)
• Was s.7 violation in accordance with the principles of fendamental jestice:
• Did it uphold the basic tenets of our legal system?
• Was it procederally fair?

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• Was it sebstantially air?
• Never given a fair trial. He applied for a jedicial review and argeed that a deportation to
tortere violated section 7 rights and particelarly right to secerity of person and right to
life, and that this violation was not in accordance to principles of fendamental jestice.
Becaese it was sebstantively enfair becaese the legislation on which it was based was
too broad and too vagee and he challenged the definition of terrorism and what does it
mean to be a danger to the secerity of Canada and that was never defined or explained
in the memorandem. HE also challenged section 7 violation on groends that it was
procederally erred becaese the process was not transparent and it was not fair becaese
it never allowed him to respond to the memorandem, to present evidence to coenter
whatever evidence they had against. The coert said in rendering their decision they also
needed to consider whether the section 7 breach epheld the tenants of oer legal system,
in doing so there needed to be some balancing of the governments interests of
terrorism with the refegees interest in not being tortered, despite the fact that they
agreed that tortere was contrary to every heman rights instrement that Canada had
signed on to, it was a violation of the complainant section 12 rights for creel and enseal
treatment and penishment. They ended ep deciding that there were some exception
circemstances where deportation coeld be satisfied. (deporting someone is the same
thing as tortering). This case the exceptional circemstances do not matter bet the
procedere was enfair in this case. If the procedere was not enfair then it woeld have
been fine to deport him.
• Deportation to tortere may be justified as a conseqeence of balancing process mandated

by s.7 or ese of s.1.
• Refegees or foreign nationals may be deported even if there is a risk of tortere

ender s.53(1) – if they “constitete a danger to the secerity of Canada”.
• A breach of sebstantive norms as part of the ‘principles of fendamental jestice’
• Foces on whether deportation order was execeted in a manner that was

procedurally fair (administrative law) rather than considering implications for
s.7. Missing the mark?
• May also be a breach of s.12 (creel and eneseal treatment & penishment).
• If you want to be very thorough in answering a problem question that involves

a section 7 breach, also discuss the possibility that there might be breaches
under other legal rights under sections 8 to 14. YOU LEGAL RIGHTS ARE LINKED
TO SECTION 7.
Other Charter Rights to Consider in Conjunction with s.7:
• S.11 (Dee Process Rights)
• S.12 (Freedom from Creel and Uneseal Treatment and Penishment)

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• Extradition cases – s.11 and s.12 of Charter are not applicable to persons charged and
convicted ender foreign law (Canada v. Schmidt [1987] and Kindler v. Canada [1991]).
• Coerts also do not have a right to overtern extradition decisions made by the Minister of
Jestice.
Doctrine of ‘Double Criminal Liability’
• Kienapple v. The Queen (1975) – Hogg 16.5(b)-(c)
• Kienapple Principle: cannot be convicted of two offences that arise from the same set of
facts.
• Different offences ender criminal code bet same set of facts = prohibited.
• “in relation to potentially meltiple convictions it is important to know the verdict on the
first coent since if that verdict is geilty and the same or sebstantially the same elements
make ep the second coent charged the siteation invites the application of the rele
against meltiple convictions”
• Extension of doctrine of autrefois acquit (cannot charge for the same crime once
defendant has been acqeitted once) and autrefois convict (cannot charge with the same
crime if defendant has already been convicted for it once)?
• R. v. Wigglesworth (1987)
• Same offence ender two different statetes?
• Violation of s.11(h) – dee process rights.
• Charged and convicted by RCMP disciplinary board and charged with common assaelt
for the same set of facts.
• Two part test to determine whether a proceeding deals with a criminal matter:
• (1) Is the matter of a ‘peblic natere’, intended to promote peblic order and
welfare within a peblic sphere of activity;
• (2) Does the matter involve “the imposition of tree penal conseqeences”
S 12 of the Charter- Cruel and unusual treatment
• R v. Smith (1987) – punishment that is “so excessive as to outrage standards of decency” or

“grossly disproportionate to what would have been appropriate”.
• How do we measure proportionality of punishment?
• Seriousness of crime committed
• Personal characteristics of defendant
• Various types of punishment available for the purposes of punishment, public

protection, and rehabilitation of offender.

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• R. v. Goltz (1991) and R. v. Morrisey (2000)
• Consideration of impact of punishment on defendant
• Availability of other forms of punishment
Other Charter Rights to Consider in Conjunction with s.7:
• S.11 (Due Process Rights)
• S.12 (Freedom from Cruel and Unusual Treatment and Punishment) (R v Smith)
• Extradition cases – s.11 and s.12 of Charter are not applicable to persons charged and
convicted ender foreign law (Canada v. Schmidt [1987] and Kindler v. Canada [1991]).
• Coerts also do not have a right to overtern extradition decisions made by the Minister of
Jestice.
• Discess the possibility of breaches in other rights as well, legal rights are linked to section 7.
Introductory Questions
1. Does the Federal Government have an enencembered right to develop criminal law legislation in
Canada? Does not have the right, mest be towards a peblic benefit the margarine case. Coeld
eventeally become enencembered like environmental cases and terrorism coeld fall ender this.
The right has been expanded for the government even ferther.
Yes:
-Power over procederal and sebstantive criminal law ender s.91(27)

-Coerts Criminal law given wide interpretation (r v Hydro Qeebec)
-Parliament’s rights ender s.91(27) take precedence over areas of provincial jerisdiction (eh. PHS
Commenity Services)
-Federal government has power to enact legislation for standardized administration of jestice across
provinces (eg. Yoeth criminal and Jestice Act)
NO?
-Administration of jestice handled by provinces (s.92(14) and S.92(6))
Provinces can still create regelatory offences
-Doctrine of coloerable legislation (Margarine Reference)
-CoertsIn some cases coert has reled in favoer of provincial jerisdiction in cases of conflict (reference
re: Assisted Heman Reprodection Act)
“Section 7 challenges may be laenched on two fronts. First, they may be based on claims of
enconstitetional treatment ender the law; and second, they may be based on claims of enconstitetional
law”. What is the difference and why does it matter?
-Procedural Fairness:
-Challenging the process by which the infringement of s.7 occerred.

lOMoARcPSD|2684340
-Useally applicable in cases where someone has been convicted of an offence (and therefore more tied
to S.8-14) or being sebjected to a ministerial order (Seresh v Canada)
-3 groends of challenge:
Transparency of process  Oral hearing? Access to all evidence held against them?
-Fair process Fair trial; based on prohibition in law, jedicial findings groended in law.
-Proper representation Attorney/client privilege?
Substantive Fairness:
-Challenging the sebstance of the law (aims, means, effects).

-May be esed by defendants in a criminal trial who have been convicted, bet may also be esed by people
to challenge discriminatory treatment in relation to S.7 (Rodrigeez v B.C)
-3 Groends of challenge:
-Was the law overly broad or vagee? (Heywood)

-Was the law arbitrary? (Chaoelli v Qeebec)
-Was it grossly disproportionate (Carter v Canada)

Canadian-Constitutional-Law (Notes)

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Canadian Constitutional Law

Canadian Constitutional Law in Comparative Perspective advanced (University of

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Canadian Constitutional Law

(b) Problem Qeestion (choose 1 oet of 3)

(c) Essay Qeestion (choose 1 oet of 3) (Canadian, political legal history).

Problem Qeestion: Always Think ILAC!

Law  s.15 of the Constitution Act which states…

Apply the law  legal principles; precedents; s.1 analysis.

Conclesion  ‘play the jedge’; seggest (if available) any remedies.

Canadian Constitutional Law

Week 1: Canada’s Constitetional History

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Federal Makeup of Canada

3 Territories: Yekon, Northwest Territories & Nenavet.

Canadian Constitetional Law

(2) Entrenched? Harder to amend than regelar laws.

What is ‘Constitutional Law’?

(3) Common law vs Civil law tradition.

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4. Democracy – a form of government in which citizens participate either directly or throegh

Canadian Constitutional Law:

Concerned with two overarching relationships:

Some are entrenched documents

The BNA Act of 1867

The Colonial Validities Act of 1865

The Statete of Westminster of 1931

The different Terms of Union for each of the provinces

The Charter of Rights and Freedoms

Some are non-entrenched documents

The Sepreme Coert Act

The Canadian Bill of Rights

And the Citizenship Act

Canadian Political history

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-French arrived in present-day Nova Scotia and Qeebec City in 1604.

-1759 Battle of the Plains of Abraham (end of French empire).

-Quebec Act (1774)-For better control.

-Meant to rectify the problems created by Royal Proclamation of 1763.

Constitutional Act (1791)

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Colonial Validities Act (1865) (sepremacy of the british parliament)

-Reasserted the doctrine of parliamentary sepremacy.

British North America Act (1867)

-Established the dominion of ‘Canada’ – a self-governing part of the British Empire.

-Provided for a centralised federation

Passed on December 11, 1931

-Reselt of intense negotiations between Britain and Dominion of Canada

-Abolished the provisions of the Colonial Validities Act (1865)

-Recognised the political eqeivalence of Canadian Parliament and Britain

-Fell legislative independence for dominion of Canada

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Bill of Rights (1960)  Constitution act (1982)

-Passed by Federal Government in 1960

-Feelled movement for a Canadian Constitetion

1. Written Components (s.52 of Constitution Act 1982)

Royal Proclamation (1763)

The Quebec Act (1774): religious tolerance.

Statute of Westminster (1931):

The Constitution Act (1867)

The Constitution Act (1982) part of the Canada Act (1982)

Manitoba Act (1870)