Midterm

- Fact pattern + essay type question / can look elsewhere, but it is not the idea, cite name+page (e.g. Morgentaler,
CLG 4)
- Go back to course objectives. (e.g. political context, philosophical theories, etc)
- Focus on providing arguments and counterarguments with reason and authorities. Mention how they are
connected to underlying issues. Mention opinion.
- The development of the arguments is more important than the result.
- There will be a page limit, potentially 8 pages.

Nature and sources of Canadian Constitutional Law

- Two meanings of “constitution”:
o How the government chooses to govern itself, including common law.
o The specific set of documents regarded as constitutional
- 5 major features by book authors:
1. Parliamentary democracy
i. Ensures that general laws are made by parliament and generally administrated by executive bodies
appointed by parliament.
2. Federalism
3. Individual and group rights
i. Generally expressed as claims against the state
4. Aboriginal rights
i. WIP
5. The principle of constitutionalism
 That laws enacted by parliament can be declared “of no force” by the courts if they contradict the
constitution.
 2 limits to parliamentary supremacy: federalism and 1982 Charter
- 4 major features given by SCC in Reference re Quebec: 1) Federalism 2) Democracy 3) Constitutionalism and rule of
law 4) Respect of minority rights.
- Sources of Constitution (particularly complex in Canada)  CA 1982 has a non-exhaustive list of documents. In
practice constitutional sources include:
o Statutes
 Canadian Constitutional Statutes (CA 1867, CA 1982, Provincial Constitutions)
 Ordinary statutes: Some debate on what is constitutional (eg: SCC act)
 Actions of British government (Royal Proclamation 1763, Quebec Act 1774)
o Common law
 Privy Council Decisions before 1949
 SCC after 1949
 Aboriginal Rights are reflected in decisions (e.g. Aboriginal title)
 Parliamentary Privilege: right of Parliament to enact laws affirmed by courts.
 Prerogatives
 Royal Prerogatives: Powers give to the crown aside from parliament. Historically important,
but now mostly done on the advice of cabinet.
o Conventions
 Generally more political in nature and not enforced by courts.
 For example some elections and procedures of parliaments and legislatures.
 May become officially law if quoted and enforced by common law.
o Treaties
  Internationally law: It can affect constitutional interpretation by courts. Generally broad and open to
interpretation.
 Aboriginal Treaties: Affirmed and entrenched in s. 35, but not always applied in common law.
- Tensions with the sources and interrelationships:
o Why would any law, but aboriginal law have jurisdiction?
 Is there any legitimacy in the doctrine of conquest or terra nullis?
 Should we be resorting to aboriginal treaties as constitutional law? If so what does it mean to
understand the treaties in context?
o Is the political system still enforcing constitutional conventions?
- From colony to independent state
o BNA 1867 (now Constitution Act 1867)
 No amending formula because it was just a regular statue by British Parliament.
 Sets up the division of powers and federalism.
o Official end of colonial status in British Statute of Westminster 1931
 No further British statute would apply to CAN unless CAN consented.
 CAN could repeal or amend previous statutes.
 Exception in s.7 in the case a statute went against BNA 1867 preserving the role of UK in the case of
constitutional changes.
o 1949 Appeals to Judicial Committee of the Privy council were abolished
 Supreme Court in CAN had existed since 1875, but Privy Council was still used in some instances.
o 1982 Canada Act (UK) and Constitution Act (Canada)
 “Patriation” of constitution amid political pressure
 Introduces Charter of Rights and Freedoms declaring constitution supreme law s.52.
 Canada can finally amend its own constitution, introducing various restrictive amending formulas.
o Failed attempts at amending CA 1982:
 Meech lake accord 1987 because of Quebec’s dissatisfaction died in 1990 as 3 years expiry for
reform
 Charlottetown Accord 1992: similar to Meech Lake but got farther before being rejected by voters.
- Changing the Constitution:
o Amending formula is difficult and varies depending on which section is amended.
o For most amendments s. 38 (seven-fifty rule) applies.
o Case law can also change the constitution through interpretation of sections.

Reference re Secession of Quebec (1998)

In the context of a narrow vote to remain in CAN in the 2nd Quebec referendum. Quebec refused to participate and SCC
appointed an amicus curiae to represent Quebec. SCC replied in unanimous decision signed by “The Court”

- Questions:
o 1) Can a province unilaterally secede under the constitution?
  NO, but other provinces and Federal govt have an obligation to negotiate in the case of “a clear
majority in a clear question” expressing willing to secede.
 Court brings up four unwritten constitutional principles:
 1) Federalism 2) Democracy 3) Constitutionalism and the Rule of Law 4) Respect of
minority rights
 The principles are essential to evolution of constitution “living tree”.
 Text itself cannot answer every question, but read as a whole these four principles are
derived and should guide constitutional thinking.
o 2) Can a province unilaterally secede under the international law?
 NO (Not included in this extract).
o 3) If q. 1 and q. 2 are in conflict which takes precedence in CAN?
 Unnecessary to answer.
- Difference between constitutionalism and rule of law
o Constitutionalism: government must comply with constitution
o Rule of law: government must comply with the law including constitutional law.
o Shift from parliamentary supremacy to constitutional supremacy
- Court affirmed function of taking reference questions when they are:
o Appropriately addressed by a court of law
- Court may choose not to answer them if:
o Answering would take Court out of its own assessment of its role in the constitutional framework
o The court cannot answer within its area of expertise which is the interpretation of the law.
- Used unwritten principles to generate legally enforceable constitutional obligations

Judicial Review and Constitutional Interpretation

Constitutional Interpretation
- Arguments proposed by Prof. Bobbit
 Historical Argumentation:
 Basis of Originalism is US > what the framers intended at the time.
 Not popular in Canada, huge in the US (Scalia).
 Textual Argumentation:
 Consider present day meaning of the words in the provision.
 e.g. SCC > right to speak French in court does not imply right to be understood.
 Doctrinal Argument:
 Predominant form used in CAN.
 Draws interpretation from previews cases.
 e.g. > Using the Oakes test for s.1.
 Prudential Argument:
 Argument about cost and benefits, also called practical argument.
 Used in the proportionality part of the Oakes test.
 Ethical Argument:
 More popular in USA > Justice Ginsburg
 Still used in CAN given more leeway to Parliament in laws that are seen as furthering the
interests of vulnerable groups in CAN.
 Structural Argument:
 Based on inferences from Constitutional structures and the relationship which the Constitution
ordains in these structures.
 Uses simple logical moves derived from the entire text rather that a single section.
Edwards v Canada (AG) (1928) in SCC > Persons case
 Facts:
 Women had gained votes and right to sit in parliament, but denied seats in the Senate because
PM thought that BNA “qualified persons” was not meant to include women at the time
(originalist view)
 Issue:
 Does the word persons in s. 24 BNA 1867 include women?
 NO
 Reasons:
 BNA only allows imperial parliament order to change requirements for senators.
 If found that women are included, then it has been so since 1867 and the BNA should be the
only text to be interpreted for this purpose.
 Must look at the whole text (CA 1867) and other relevant factors showing will of drafters.
 When interpreting dubious meaning take words in their ordinary and popular sense.
 Looked at historical role of women going back to roman times.
 Lord Brougham’s Act (1850) said all acts using masculine gender should be interpreted to
include women unless expressly provided.
 Differentiated Brougham’s Act because “persons” is not a word that is limited to males.
 Chorlton v. Lings is binding here, and there the judge found that he could not change the
meaning of “man” to include women because it wasn’t what the drafters intended. The drafters
had reasons to exclude women on capacity.

Edwards v Canada (AG) (1930) (JCPC) > Persons case

 Issue:
 Does the word persons in s. 24 BNA 1867 include women?
 YES
 Reasons:
 Look at external (e.g.: case law) and internal evidence (act itself).
 External:
 Chorlton v. Lings differentiated because it’s about express use of masculine wording, no
such thing here.
 History should be considered for interpretation, but don’t go too far. Therefore Roman
law irrelevant here.
 Looking at the act itself:
 Careful not to apply British traditions to Canadians > BNA 1867 planted a living tree in
CAN capable of expansion within natural limits.
 Privy Council should not limit BNA with narrow interpretation, but be liberal so CAN may
be “mistress at her own house”.
 Not going to look at what was intendent by parliament, but at what they actually said.
Looks at whole act which has provisions limited specifically to males, therefore assumes
that “persons” is not limited to males.

Triggering Judicial Review and Procedural Issues

- How do Constitutional Issues get to Court?
 Ordinary litigation and rules of standing:
 Can arise in cases through appeal.
 Can arise by someone seeking declaration of a law as unconstitutional.
 Standing historically meant someone directly affected by the law in a way that is different from
everyone else.
  Standing broadened by SCC through common law new category of “public interest standing”.
 Only requires to show that law affects you or that you have genuine interest.
 Not allowed when public interest is too expansive and lacks factual underpinning of operation of
the law (Council of Churches v. Canada).
 Standing rules different in charter cases than federalism cases.
 Reference Procedure:
 Government refers questions directly to appellate court for advice.
 This power comes from Supreme Court Act (1985)
 Court might not answer if the question lacks sufficient legal content, is ambiguous, imprecise, or
information provided is inadequate.
 Court might appoint amicus curiae if there is an interest without representation.
 Provincial Legislatures can also submit references to their courts of appeal.
 Not officially as precedential as court cases, but in practice still definitive.
- Notice requirements:
 AG’s must be notified of cases where constitutional issues might arise.
 In the case of provincial AG’s notice might be required in the constitutional challenge of any legislation,
regulation, by-laws, and even common law.
- Parties and intervenors
 AG can intervene in cases of private law arising constitutional questions.
 Other interested or affected parties can apply to be intervenors, judge is free to impose any terms or
conditions on such intervenor. (e.g. not allowed to submit evidence).

The Judicial Function

- Most important constitutional provisions found in Part VII of the CA 1867. > Includes appointment of judges to
superior and district courts, as well as $, and removal.
- Differentiation between superior and inferior courts:
 Although differences have been reduce by case law.
- s. 92 (14) of CA 1867 Grants provinces ability to make laws on administration of provincial justice. Allows
legislatures to create provincial courts, except for provincial superior courts judges which are still federally
appointed.
- Superior court judges shall hold office while in good behaviour until age 75 (s. 99 CA 1867)
- Federally created courts:
 Parliament allowed to set up a “General Court of Appeal” (SCC) as well as additional courts for better
administration of laws in Canada (Federal Courts) under s. 101 CA 1867.
 Parliament also in charge of paying them through s.100 CA 1867.
 Federal courts only have jurisdiction over “laws of Canada”, this is quite limited interpreted as areas of
existing federal law (including federal common law)> e.g. aboriginal title, immigration.
 Meaning of Federal Laws is still evolving:
 Constitution acts not considered “laws of Canada”.
 Dispute over what constitutional issues Federal courts can see.
- Separation of Powers s. 96 (CA 1867)
 Literally reads as a federal appointment power, but through case law used to prevent the erosion of
judicial power through legislation (e.g. not allowing to reduce salaries).
 Applies to SCC, Provincial Courts of Appeal and Provincial Supreme Courts. > extended by case law to
provincial courts.
 SCC further protected by s.41 CA 1982 which made it a constitutional amendment to alter SCC structure.
 Led by principle of restricting significant legal adjudication to judges.
 Judges are legally trained, have security in tenure and pay > therefore protect rule of law.
  Preservation of original jurisdiction of superior courts has been highly controversial.

Reference Re Supreme Court Act ss. 5 and 6 (2014) will you take Nadon and his bow-tie?
Supreme Court is constitutionally protected to ensure it can fulfill its role.

- Facts:
 Justice Nadon from the FCA was appointed to the SCC as a Justice from Quebec.
 s. 6 of the Supreme Court Act says that 3 of the 9 justices will be appointed “from among the judges of
the Court of Appeal or of the Superior Court of the Province of Québec or from among the advocates of
that Province.”
 Nadon was not a member of the barreau du Québec and his appointment was challenged saying he was
not “among the advocates of that Province”, although he had been in the past and for over 10 years.
 Parliament tried to add s. 6.1 to say that it counted if at any time someone had been an advocate in the
province for 10 years.
- Questions:
1. Does a person who was at any time an advocate of at least 10 years standing at the Barreau du Québec
qualifies for appointment under s. 6 as being “from among the advocates of that Province”?
 NO: s. 6 should be read as narrowing down the general requirements of s. 5, which would
include former barristers, from 4 categories to two. To the exclusion of former barristers.
 4 reasons:
1. Plain meaning has been consistent since 1875 always to exclude former barristers.
2. Gives effect to the important differences between s. 5 and s. 6.
3. Advances dual purpose of having civil law/Quebec culture expert and of maintaining
Quebec’s confidence in the court (historical and ongoing considerations).
4. Consistent with the broader scheme of the act.
 Same conclusion reached in literal and purposive interpretation.
2. If no, can Parliament amend the Supreme Court Act to make such a person eligible for appointment to
one of the three Québec seats on the Court?
 NO: Although the act was an ordinary statute in 1875 and CA 1867 says it can be amended by
parliament, it is now to be understood and amended as a constitutional document.
 Must be understood in its historical context > of bargain with Quebec.
 SCC became guardians of the constitution and head of Canada’s unified court system in 1851,
gaining even more powers after Patriation in 1982.
 CA 1982 confirms constitutional protection of Supreme Court Act in s. 41.(d) in relation to the
“composition of the Supreme Court” (ss. 5 and 6 of the Supreme Court Act).
 It even goes as far as requiring provincial unanimity, to protect Quebec’s interests.
 Parliament can make some legislative changes to SCC under s. 101 CA 1867 but not on
constitutionally protected issues like its composition.
- In 2015 the court decided that the same requirements for judges are not required for the Quebec Court of
Appeals and that someone from the FCA can be appointed there. They said that the QCA was governed by s.98
of CA 1867 which arose in a different historical context than s.6 of the Supreme Court Act, and that s.98 only
meant to ensure literacy in civil law.

From Contact to Confederation

- History vs Memory
o History: Intellectual exercise which attempts to look at past events from an intellectual POV, construing
facts.
o Memory: Subjective interpretation of past events that has an active relationship with contemporary
events. It is how a community interprets its past.
- Relevance of historical material:
o Understanding the history of Canada and the forces at play in the creation of the constitutional
document can provide tools to interpret the constitution of Canada.
o The historical development will provide guidance in understanding how the SCC got to its current
position as the ultimate interpreter of the constitution.
- Pre-contact, Contact, and Terra Nullius
o Native people had an oral and unwritten for of law, which was inspired by radically different
perspectives on the relationship between nature and mankind.
 There was great variation between the different legal systems each aboriginal group had. Some
were more formalized than others, but they are all legal systems.
 Due to lack of data (oral tradition) it is impossible to have a full picture of what these legal
systems looked like.
o Terra Nullius and the Doctrine of Settlement
 Occupied land could only be claimed sovereign by conquest or cession. Which required the local
legal system to be recognized and an agreement to be reached.
 North America was deemed to be unoccupied land (terra nullius), regardless of the aboriginals.
Therefore the “doctrine of discovery” applied and conquest or cession were not required.
 However, there was still self-governance of aboriginals allowed and the existence of treaties
seems to contradict the premise that they considered North America terra nullius.
- New France: Canada’s 1ST European Constitutional Regime
o In early 17th century the first French settlements were established in Acadie (now Nova Scotia).
o Colony of New France was created, when France was still a monarchy, however king’s authority was not
absolute. The land was vast and sparsely populated.
o Governor of New France initially had monopolistic control, but eventually colonial institutions
developed. After a brief private control of New France, a council was created in 1647 with the first
democratically elected official, clergy, and the Governor.
o Like most European countries there was no separation of power and sovereign council had full control.
o Eventually three powers emerged (Council, Governor, and Intendant) but they had concurring
jurisdictions with the Intendant having most of the powers.
o Laws were sent from France, but colony could enact local ordinances.
o Informal town meetings were held, but it was not a true democracy.
o Judiciary powers were held by all 3 powers with concurring jurisdictions and judicial review systems.
o Eventually New France inhabitants became the first to call themselves Canadiens.
- From Acadia to Nova Scotia: The Maritimes
o After constant conflicts with England in 1710 France surrendered Acadia to England. It became Nova
Scotia.
o Acadians took oath of loyalty to not attack the British (on the condition that they also would not be
required to fight against France) and they stayed in Nova Scotia, however conflict with France continued
and in 1755 Acadians were deported from Nova Scotia in fear that they would rebel. This was justified
by saying that since not all of them had taken a new oath of loyalty with no conditions that was
required, they were not BNA citizens and subject to deportation. Thousands of Acadians died while
being deported and France accused England of genocide.
o Acadians were allowed back in 1764, but their land had been taken from them. To prevent them from
claiming their land back, a law was passed declaring that Nova Scotia had always been a British territory
(a settlement not a conquest), legally erasing 151 years of French settlements in Nova Scotia.
o The native Mi’kmaq sided more with the French but still considered themselves owners of the land.
- The Expansion and Consolidation of BNA: From conquering New France to Constitutional Act 1791
o In 1759 the British won a battle against the French in Quebec City, gaining control. A year later the same
happened in Montreal and so the years of New France ended.
 o Capitulation protected rights to land and to practice Catholicism for the conquered. In 1763 this was
confirmed by the Treaty of Paris officially ending the war between England and France.
o In spite of treaties Catholics were still not allowed to participate in government.
o 1763 Royal Proclamation made from London ending Royal Prerogative, establishing a parliament,
forcing Catholics to renounce tenets of their faith to participate in government and imposing the
common law over Quebec. It also stated that aboriginals were not to be disturbed and their lands would
be respected unless purchased by the Crown.
o Quebecois kept using civil laws regardless of what England said. Eventually in the Quebec Act 1774
French laws were restored from Property and Civil matters. Also removed the oath Catholics had to take
to participate in government. However, it was decided that criminal law would be British since the
French colony laws were unduly harsh.
o After the American Civil war thousands of loyalist emigrated to Quebec and Nova Scotia, bringing a clash
of culture. The loyalists also resented that Quebec was not allowed to create a parliament, despite 1763
Proclamation. This all led to the Constitutional Act 1791.
o In the Constitutional Act 1791 Quebec was divided into two provinces Upper Canada (mostly Anglo-
protestant) and Lower Canada (mostly French-catholic). Both allowed to create legislative assemblies.
- Troubles in the Colonies: The Quest for Self-Governance, Rebellions, and the Union Act 1840
o The new legislative assemblies and the old legislative councils (executive) started having conflicts, since
the councils were not accountable to the legislative assemblies. This was worse in Lower Canada where
those in council were British and those in the assemblies French.
o Eventually there were rebellions inspired by US republican ideas. They were crushed with force
especially in Lower Canada. The republican ideas were never popular among the general population.
o Lord Durham sent to the Canadas from UK to file a report of the state of responsible government. He
said the French were an intellectually inferior race that should be erased. He also said that more power
should be given to Anglo colonists who weren’t so smart but meant well. He said they should be given
all powers except for money bills and a few other issues which should come from the executive council.
o In response they passed the Union Act 1840. It united the two Canada’s into United Canada. It also
provided that parliamentary representation of Upper and Lower Canada should be equal (ignoring that
Lower Canada had a larger population), and merged their debts (although Lower Canada’s was lower). It
also declared English the only language. The Act was never actually put in practice.
- Confederation 1867
o The failed Union Act was one of the factors leading to Confederation which was finally accomplished
with the BNA 1867. This reorganized Canada into Ontario and Quebec, united them with Nova Scotia
and New Brunswick and provided expansion of the now federalized state westward.
o A big reason, perhaps the main one for selecting a federal model was the many differences between
Quebec and Ontario. Another reason was that the American model proved successful for expanding
westward, which many businessmen in Canada wanted to do.
o The principles when drafting the BNA were to avoid some of the perceived errors the US had made, like
granting the states too many powers with the Articles of Confederation. For this purpose they kept
residual powers with the Federal Government.
o They also wanted to maintain loyalty to the UK (“A constitution similar in principle to that of the UK) for
security and business reasons. This is why they established the Lieutenant Governors and implied that
any appeals would go to the PC.
o When dividing powers French Canadian interests were taken into account so provinces received
jurisdiction in things relating to education, the family, social institutions, and civil matters.
o MacDonald wanted provincial economic to would reduce in importance, but giving the provinces control
over natural resources (at that time insignificant) made the provinces powerful in the long run.
 Chapter 4: Late 19th Century and Courts under the Influence (1867-1900)

- Two main and overlapping topics in this era for courts: the nature of federalism and the division of legislative
powers. Conflicts between the Federal Govt. and the Provinces to interpret BNA 1867 ss 91 & 92. In the courts
the provinces won most of the cases.
- Although s.91 said that anything that was within its subjects would be deemed federal, this led to a more
narrow interpretation of the subjects, leading to decisions expanding provincial powers.
- Some provinces were vocal against judicial review since they saw it as a limit on provincial legislative
sovereignty. They didn’t get very far and judicial review became firmly established. The SCC was established in
1875.
- Section 91 is different from 92 in that it has an opening and closing statement which was intended to give the
federal govt. residual powers and to allow the federal govt. to step in to legislate for peace, order and good
government. This has been given a rather narrow interpretation.
- The lists in ss 91 and 92 include classes of subjects. For each case you have to first define the matter (e.g.
insurance) then the class of subjects (e.g. property and civil rights).
- Parsons was really a case on who has the power over the economy. Is it “trade and commerce” (federal) or is it
“property and civil rights” (provincial). They decided it should be provincial.

Citizens Insurance Company v Parsons (1881)(SCC)

ss. 91 & 92 as mutually exclusive.

- Ontario enacted laws about fire insurance policies. It specified conditions and standards which were to be put
into every insurance contract. Sometimes insurers would not comply.
- Parsons brought a suit against two insurers to collect compensation for a fire in his store.
- His insurers didn’t want to pay claiming that he did not disclose in other insurers. Parsons claimed he didn’t have
to comply because of the new provincial laws.
- As a result the insurer challenged the provincial jurisdiction to enact the laws. Ontario CA said the laws were
intra vires and it went to the SCC.
- Issue: Are laws for insurance companies within provincial Jurisdiction?
o YES: This law is not about “trade and commerce”, but about “property and civil rights” since it is
contract law. This is about insuring property, so it should fall under property. It may touch on trade and
commerce (understood as interprovincial), but that is not its purpose, besides it is not inconsistent with
any federal law.
o SS. 91 & 92 should be understood as mutually exclusive, so that they do not overlap.
o DISSENT: This is obviously trade and commerce, since fire insurance is a trade. Also policy issue and
need to maintain a national togetherness for the purposes of international commerce.

Citizens Insurance Company v Parsons (1881)(JCPC) 1st JCPC case on division of powers in CAN
o Key phrase: “The two sections (91&92) must be read together and the language of one interpreted, and
where necessary, modified, by that of the other.”
o Section 91 & 92 are general enough that conflicts in interpretation will necessarily arise.
o It is up to the courts to decide who has jurisdiction since it should be assumed that the lists of each
section are separate and not meant to overlap. To decide the courts must look at the conflicting areas
and decide on a case by case basis, trying to make general decisions of interpretation.
o Always see if it falls under 92, if not it’s necessarily federal (residual). If yes, look if it is also under s.91
and then try to reconcile.
 Q1: Does the act fall within “property and civil rights” s.92? (if not, forget about Q2)
 YES: this is a law regarding contracts and property and civil rights are historically used
widely to include contracts.
  If “property and civil rights” were interpreted narrowly to exclude contracts, then
Quebec would lack protection over civil law, which was clearly not intended.
 Also in other constitutional documents like the Quebec act “civil rights” is used in a
broad sense.
 Q2: Does the act also fall within “commerce and trade” s.91?
 NO: the fact that in s.91 specific types of contracts like “promissory notes” are
mentioned separately suggests that there is no general jurisdiction over contracts.
 Although it can be said that insurance is a trade. An insurance contract is not a trading
contract, nor are brokers “traders” under UK law.
 The fact that at the end of s.91 it says everything which falls under s.91 becomes federal
when in conflict with s.92 should only be read to apply to 92.16 (issues of provincial
nature) and not to the specific subjects enumerated as provincial in s.92. (Later this was
rejected in The Local Prohibition Reference 1896, saying the ending of s.91 should apply
to all of s.92)
 Therefore regulating commerce and trade is allowed in a general sense, but not to
regulate the contracts in a particular industry in a single province. (e.g. laws regarding
bankruptcy vary between England and Scotland, although law says trade should be
unified).
- In 1878 the Canada Temperance Act was enacted by Parliament to allow local voters to prohibit retail sales of
alcohol. Exceptions were made for brewers, distillers, and whole traders and long as they had reason to believe
the liquor would be taken immediately from the city or country where the prohibition was in place.

Russel v the Queen (1882)(PC)

o Facts:
 Russell operated a tavern. Charged under the Canada Temperance Act.
o Issue:
 Is the federal govt. ultra vires in enacting the Canada Temperance Act?
 NO: this law is about order and safety which is an issue of national interest. It is
expected that order and safety laws will touch on property, but this does not make
them about property. They are also not under any other s.92 category.
 If an act does not fall within s.92 then it is necessarily federal since Parliament holds
residual powers (Citizens Insurance v Parsons). Therefore no need to check if it fits
under s.91.

Hodge v the Queen (1883)(Ont. HC)

- Introduces idea that legislatures and Parliament are equal in kind, each supreme in their jurisdictions.
o Facts:
 Hodge ran a tavern and was charge under Ontario provisions.
 Challenged the act on jurisdiction (conflicting with federal trade and commerce) and challenged
the provincial legislatures’ ability to create and delegate to administrative board, since
legislatures were creature of statutes themselves and therefore should not create more.
o Issues:
- Jurisdictional conflict: should this be under federal “trade and commerce”?
 NO the nature of the act is local and intended to preserve public decency.
 Hodge also argued that Russel v Queen made liquor traffic a federal jurisdiction.
Rejected since subjects that may for one purpose fall in one jurisdiction, may for
another purpose fall into another one. Here there is no conflict with the purpose of the
Canada Temperance Act. (First Double Aspect Doctrine)
 - Do provincial legislatures (presumably creatures of statute) have the ability to create and
delegate to admin tribunals?
 YES provinces have plenary powers as ample as Parliament within its jurisdiction.
- Can a province impose hard labor for breaking its laws? (BNA only mentioned imprisonment)
 YES hard labor is the usual accompaniment of imprisonment.

- In 1885 PM Macdonald passed the McCarthy Act setting licensing requirements for hotels, saloons, shops, and
wholesale sales to be federally administered. A Reference was given to the SCC and then the PC and they both
declared the McCarthy Act ultra vires, but as it was customary then, no reasons for the reference decision were
given.
- In 1894 Mowat (Ont. Premier) sent a reference to the SCC asking if provinces could enact a prohibition law, the
SCC said no. A prohibition would conflict with “trade and commerce”. This was appealed to the PC.

AG Ontario v AG Canada (The Local Prohibition Reference)(1895)(PC)

o Facts:
- Ontario trying to pass a provincial prohibition on alcohol.
o Issue:
- Does a province have jurisdiction to pass a prohibition law? More specifically does the fact that
the Canada Temperance Act was deemed to fall under s.91 means that any prohibition is
necessarily a provincial matter?
 YES: Ontario can pass their own law as long as it does not conflict with federal law. In
this case because the Canada Temperance Act is only activated by vote, ON can pass its
own laws where the Canada Temperance Act has not been implemented. If the Canada
Temperance Act is implemented in that municipality, then the ON law would be
repugnant (in conflict) and therefore ultravires.
 The ending of s.91 stating that every law that falls within both in s.91 and s.92 should be
given to s.91 should be applied as such. This rejects the interpretation of Citizens
Insurance where the PC said this provision was only for 92.16 and not the specific
enumerated subjects.
 However, if the subject is deemed to fall only on s.92, then the Federal govt. cannot
encroach upon it, even if it is claimed to be an issue of peace, order and good
government.
 s.94 which gives fed power to make provincial laws uniform can only be used with
provincial approval.
 An issue cannot fall under both s.92.16 and one of the enumerate s.92 categories.
 Fed can only repeal provincial legislation through courts, and this will only be done if it is
clearly in conflict with establish federal legislation under federal jurisdiction.
 This law only affects sales done in the province of Ontario, therefore no intrusion in
interprovincial commerce.

- Enumerated subjects and jurisdiction results (always check for s.92 first and only if yes go to s.91)
s.91 s.92 Result
✓ X s.91
X ✓ s.92
✓ ✓ s.91
X X s.91
The Depression and the New Deal
- Judgements which gave the provinces control over economic issues and limited “pogg” to very serious national
issues (e.g. emergency).
- There is more recognition of jurisdictional overlap instead of understanding s.91 & 92 as watertight
compartments.
- “New” issues where jurisdiction was not clear arose from changes in technology, international treaties, and
economic situations. New is not what is not explicitly listed (e.g. Insurance in Parsons) but what was not even
thought about at the time.
- Competing values in ss. 91 & 92 decisions:
o Centralization  Decentralization
o Activism  Deference
o Intentions of drafters  Living tree
o Watertight compartments  Jurisdictional overlap

Proprietary Articles Trade Association v AG Canada (PC)(1931)

- A case dealing with whether criminal prohibitions against “combines” (cartels) were within the federal criminal
powers.
- The PC stated that criminal law means criminal “in the widest sense”.
- Federal criminal powers are not limited to include only what was a crime under English law before
confederation. Rather the crown holds the authority to establish new crimes.
- The criminal quality of an act can only be determined by looking at the punishment. A crime is just whatever the
government decides is criminal.
- The line is drawn where an act is merely an attempt to encroach in provincial jurisdiction by declaring something
a crime.
- Obiter: The regulation of “trade and commerce” is not a federal jurisdiction limited to issues related to other
categories, but rather an independent category within itself.

Reference re the Regulation and Control of Aeronautics in Canada (PC)(1932) look at s.132…
- Facts:
o Parliament passed laws in accordance with an international treaty entered into by the British Empire on
aeronautics. The laws were comprehensive regulating licensing of pilots, aircrafts, and services. This was
challenged on jurisdiction.
- Decision:
o When analyzing the ss 91 & 92 it is always advisable to go back to the act itself, instead of simply looking
at court decisions.
o The BNA had as one of its objectives to protect minorities and provinces, however Parliament has
sovereign power to provide uniformity to issues of common concern to all the provinces. This includes
s.132 the power of Parliament to enforce international treaty obligations.
o Although transport is related to both ss.91 and 92, there is no specific mention of aeronautics. There are
arguments on either side, but considering s.132 and “peace, order and good government” under s.91
the court decides it was correct for Parliament to fulfill its duty to enforce treaties when it comes to
regulating airplane traffic which is an area where national coordination seems to make more sense.

Reference re Regulation and Control of Radio Communication in Canada (PC)(1932)

- Facts:
o This time Parliament passed laws to comply with a treaty on Radio Communications.
o However that treaty was after the Statute of Westminster, so it wasn’t entered into by the British
Empire but by Canada.
- Decision:
o s.132 didn’t apply, but the reference was decided for the Fed under “POGG”. In a rather expansive way.
 o Since the treaty was entered into by Canada and not England s.132 is not relevant.
o Ruled that when something is not clearly under a category of ss.91 or 92 it falls under s.91 due to pogg.
o Once a subject has been dealt with at a treaty there might not be enough room left for a province to
enact its own legislation. Such is the case here where you cannot separate transmitting and receiving,
but they are both parts of broadcasting.

The Great Depression:

- Shortly after the great depression a Conservative government took office. They were reluctant to increase
spending to improve the economy and instead decided to cut transfer to provinces and “dole” (EI).
- As a result the provinces and municipalities bared most of the burden and ran into budgetary problems.
- PM Bennet eventually promised a “new deal” but he didn’t fully deliver. He did pass laws limiting working hours
and setting minimum wages, he also passed EI and started regulating monopolies. These were all presumably
provincial issues.
- 2 years later (1935) Liberal PM King was back in power. King was more attuned to provincial needs and tried to
reach a consensus to provincial consent on amending the constitution. The provinces didn’t all agree and the bar
was set at unanimity. Eventually the 6 “new deal” laws were referenced to the PC for a jurisdictional decision.
- The JCPC decided on the “new deal” laws and both federal and provincial governments were upset. After the
decisions there was a strong push to end all appeals to the JCPC.

WPM Kennedy: “Our Consitution in the Melting Pot” (1934)

- Argues for a stronger federal government in light of the great depression.

- States the BNA and the PC decisions with their jurisdictional limits are getting in the way of much needed
changes.

V. McDonald: Judicial Interpretation of the Canadian Constitution (1935)

- Also condemns the BNA and the PC decisions. Argues that the constitution must be revised and questions
whether it makes sense to put the judiciary in charge of constitutional interpretation.

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

- Reference to the validity of the Limitation of Hours Act which established a max of 8 hours/day and 48
hours/week. As well as an act requiring 24 consecutive hours of rest in a week to industrial workers. And an act
authorizing the federal government to set national minimum wage.
- These laws were all implementing treaties Canada had entered into.
- Issue: Are the laws issues of national concern or property and civil rights?
- Canada relied on s.132 and provinces on s.92
- Court split 3-3.
- Lord Atkin (ruling for the provinces):
o It is one thing to enter into a treaty (executive power) and another to enforce it (legislative power).
o States that provincial legislatures like parliaments in a legislative union have the power to enforce or not
an international treaty (should it fall under s.92), regardless of whether they assented to it. This is
because it is Canada not the British Empire that enters into this treaties, and Canada is a Confederation.
o Differentiates the Aeronautics case since that treaty was entered into by the Empire.
o Differentiates the Radio case since it was not under any class of subjects of s.92.
o POGG should only be used for emergencies like the prohibition, not the great depression.
o If a treaty entered into by Canada (not the British Empire) deals with a s.92 class of subjects then s.132 is
irrelevant and the treaty can only be implemented by a province.

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

- Federal EI act ruled ultra-vires since its pith and substance was found to be property and civil rights (s.92) also it
was not a response to an emergency to be justifiable under “POGG”.
 - Lord Atkin states that although the Dominion has a power to tax, EI is not just about taxes but also distributing
those taxes. It is the distribution which he finds to encroach into provincial powers.

AG BC v. AG Canada (Natural Products Marketing Act) (PC)(1937)

- Canada tried to regulate pricing by of natural products by claiming this products were partly for interprovincial
commerce and exporting. Their argument was rejected by the SCC and PC who saw it as encroaching.
- Lord Atkin:
o The act also touches on commerce which is strictly provincial and therefore it regulates s.92.

The other “New Deal” cases

- Criminal ban on predatory pricing ruled intra vires after deciding that the conduct was in fact criminal.
- An act to authorize some cases of collusion to prevent undue competition rule ultra vires. Court relied on
Natural Products Marketing Act
- Act to establish a “Canada Standard” trademark ruled intra vires as it was a usual feature of national and
international commerce to have a national trademark.

Interpreting the Division of Powers

Values Informing the Interpretation of the Division of Powers
R. Simeon “Criteria for Choice in Federal Systems” (1982)
- Federalism is informed by and also affects other values such as liberty, pluralism, democracy.
- This paper looks at three bodies of theory which serve as POVs to assess federalism.

Community
- Mostly analyzed by sociologists.
- How does federalism in its different forms relate to idealized views of community people have.
- Federalism usually rated by its ability to maintain a balance between local and national communities.
- Communities can be defined by politics, language, ethnicity, religions and other factors.
- 3 drives: 1. Country Building 2. Province building 3. Two-nation/Quebec building.
- Who is entitled to the resource of a group? (e.g. revenue from AB oil)

Democratic Theory
- Mostly analyzed by poli-sci.
- Different approaches:
o Protect citizens from the govt: Used in the US to argue for more state power.
o Smaller units are more responsive: Claims to increase citizen participation and real representation
o Federalism frustrates democracy: Federalism frustrates majority rule, this can be said of both levels.

Functional Effectiveness
- Mostly analyzed by economists.
- Does it enhance or frustrate the ability of govt. institutions to govern effectively responding to the needs of their
constituency.
- All levels of govt. seen as elements of a single system, together responsible for the needs of the citizens.
- Most “functionalists” reject community analysis as irrelevant to the actual needs of the people.
- Valid arguments can be made for centralization and against it on economic grounds.
- Focus on the costs to citizens of running an inefficient system (e.g. delays in services).
- Critics state that it is not as unbiased as it claims, and effectiveness depends on whose values are given weight.
Validity: Characterization of Laws
Pith and Substance
K. Swinton: “The Supreme Court and Canadian Federalism: The Laskin-Dickson Years (1990)
- 30 federal class of subjects and 15 provincial.
- What to make of “pogg”
o Does it make federal classes illustrative only since everything not provincial is federal?
 This was Bora Laskin’s approach.
o Are the classes independent sources of federal power and pogg only used in limited circumstances?
 Most common approach
- ss.91 & 92 are not exhaustive and even less comprehensive as new areas of govt activity arise.

3 Steps to choose between classifications:

Steps are not always followed and might collapse in a case. But as students we should follow them.

1. Identification of the “matter of the statute” > Pith and Substance:

 Not looking for the limits of the legislation but for the dominant or most important characteristic.
 Analysis will include:
o Statutory context:
o Is it part of a larger scheme?
o Purpose: What is the problem that the legislation is trying to address? This is the dominant approach
because of judicial deference to legislatures.
o Effects of the legislation: How does the statute affect different groups? This is still necessary to
prevent govt encroaching areas of law.
o Administration of the Law: How is the law actually applied? > This might reveal the true purpose of
the statute.
2. Delineation of the scope of the competing classes:
 Double aspect/Ancillary doctrine: Some laws have both provincial and federal purposes and are upheld.
 Watertight compartments: What the framers envisioned, but usually not realistic.
3. Determination of the class of the statute:
 Precedent will play a big role in deciding the scope of the classes and deciding where a statute fits.
 However more subjective values about federalism will also play a role.
 Interjurisdictional Immunity: Is it applicable?
 Federal Paramountcy: Is it operable?

WR Lederman: “Classification of Laws and the BNA Act” (1981)

- The enumerated classes should be read as subjects for legislation so instead of merely reading a class as
“banking” (91) it should be read as “regulation of banking”. > This means you have to look at the effects of the
law.
- The enumerated classes of ss. 91 & 92 are not logically exclusive, they overlap and encroach on one another a
lot. Many areas have some aspects that are federal and others that are provincial.
- “A statute should be classified by that feature of its meaning which is judged the most important one.”
o Logic is of little assistance for this and instead beliefs and values of federalism play a role.
o This can be very hard and all that can be expected of judges is hard work and good faith.
o Judges do not officially look at the effectiveness of the law to make this decision, but by assigning
jurisdiction they might be doing just that (e.g. they think something is better done federally)
o There are always new areas to be regulated so precedent never fully decides. Also new social and
economic conditions can change how an area is seen (e.g. roads now have international implications)
- Lamer in Starr v Houlden (1990):
o Steps:
1. Identify matter of law: Look at “pith and substance” > means dominant feature.
 2. Assign to a specific head of power

R v. Morgentaler (1993 SCC)

Pith and substance criminal, the impact on health is only incidental.

Facts:

- In 1988 federal laws against abortions were held unconstitutional violating s.7 of the Charter for women.
- NS decides to pass its own abortion laws in the Medical Services Act:
o Prohibiting abortions (among other procedures) outside of hospitals in the Hospital Act.
o Denying coverage for abortions outside of hospitals.
- Morgentaler performed 14 abortions in his clinic in Halifax.
- Charged with 14 counts of violating the Medical Services Act but acquitted at trial as the judge held that the law
was criminal in pith and substance.
- NS argued the laws were valid as they are about medical services which are provincially regulated.
- Decision upheld in NS CA and now at SCC.

Issue: Are the impugned statutes criminal law and therefore ultra vires for NS?

o YES: It is criminal in pith and substance.

o Identifying the matter:
- The leading feature / true character / pith and substance.
- No single test for determining this, the approach must be flexible considering both the purpose and effect,
where the purpose is more relevant.
o Purpose and effect:
- There is a legal effect and a practical effect. Legal effect is relevant but the analysis is not restricted to four
corners of the legislation and the practical effect matters in appropriate cases like this one.
- Extrinsic materials can include: Related Legislation, Evidence of the “mischief” regulated by the Legislation,
Legislative history (like Hansard, only admitted in some cases and given limited weight).
o Scope of the competing Heads of Power:
- Criminal Law:
o Any law that has as a dominant feature the prohibition of an activity, subject to penal sanctions, for a
public purpose such as peace, order, security, health and morality.
- Provincial Health Jurisdiction:
o It is a general legislative jurisdiction over hospitals and the medical profession.
- The Regulation of Abortion:
o In CAN and UK the prohibition of abortion has long had penal consequences and been considered
criminal law.
o Applying the principles to the case:
- Legal Effect: The four corners
o It would require evidence that abortions are not available in NS to deem this a complete prohibition and
therefore criminal. > Impossible to tell from looking at the four corners.
o The expressed purpose is to prevent the privatization of certain services, which is in fact was it does.
o Penal consequences make the expressed purpose questionable.
- Practical Effect: Beyond the four corners
o Duplication of Crim Law:
o A duplication of CC language creates an inference that this act is meant to be criminal.
o A duplication of the effects is not determinative since there can be overlap. However, this cases
duplicates effects and language to an extent which is enough to create an inference that it is
criminal.
o Background and Surrounding Circumstances:
 o The course of events: The catalyst for the laws was Dr. Morgentaler’s decision to open abortion
clinic in NS > Conceded by the Crown.
o Hansard: Shows that prohibiting Morgentaler’s clinic was the central concern.
 Not every provincial law that regulates “moral issues” will be deemed criminal but it
does create a presumption.
o Provincial Objectives:
o The stated objective of preventing privatization of health was rejected at trial.
o The crown conceded that there was nothing wrong in the quality of Morgentaler’s services.
o No evidence of prior study or consultation on the costs/quality of the services.
o Argument that the goal is to reduce costs is rejected.
o If the goal orwas to prohibit the performance of surgical procedures outside of hospitals then
why were only unrelated 9 procedures selected?
o If the means employed do not logically advanced the objective, it indicates that the stated
objective is a mask.

Notes:
- Pith and Substance analysis is not mechanistic nor driven solely by logic. It will be influenced by values and ideas
about federalism.
- What happened in Morgentaler, where a stated purpose is not the same as the pith and substance the law is
called “colourability”. However Sopinka J. in Morgentaler expressly said he did not used the colourability
doctrine. > The reason is that saying there is colourability implies bad faith.
- The SCC will not always look at effects like they did in Morgentaler, a case banning communal ownership of
property that was made to prevent Hutterite ownership in AB was deemed to be strictly about “property and
civil rights” in an analysis that only looked at the four corners of the statute.
- When two very different characterizations of a statute are given as in Morgentaler the court is not limited to
picking one of them, but they tend to do that.
- The scope of ss. 91 & 92 has been mostly defined by precedent now. This makes jurisdictional cases more about
characterizing the statute than about defining the scope of the powers. The case below is an exception.

Reference re Employment Insurance Act (SCC 2005)

- Issue: Validity of maternal and paternal benefit provisions of the EI Act (a federal act)
- Quebec argues the provisions support families with children and as such should fall under “property and civil
rights” or “matters of local nature” > QCA agreed and struck down the laws.
- Federal Govt argues the provisions are meant to provide income for working parents when their employment is
interrupted by birth or adoption. As such it should fall under “Unemployment Insurance”.
- SCC characterized provisions in pith and substance as “providing replacement income when an interruption of
employment occurs as a result of the birth or arrival of a child”.
- Issue: Can s.91 (2A) “Unemployment Insurance” be understood broadly enough to include this provision?
o YES: Although provinces manage maternity leave and this law touches on maternity leave, in pith and
substance it is about providing replacement income during an interruption of work which is under the
essential elements of the EI powers.
o Principles of Interpretation:
o Progressive approach taken to ensure that Confederation can be adapted to new realities.
o The approach cannot be too progressive and should still be based on the text, to do otherwise
would mean it would be a political and not a legal exercise.
o The words can be adapted to modern day reality in a manner consistent with the separation of
powers.
o Background:
o In 1935 the Privy Council declared a similar act to be provincial under “property and civil rights”.
 o After that the constitution was amended to make “Unemployment Insurance” federal and an
identical act to the one before was passed.
o It is undeniable that there is a social component to the whole act and this new provision.
However, it is not enough that there is a social component to make it provincial. It has to be the
pith and substance.
o Initially the Act said it only covered involuntary unemployment, but this doesn’t mean it can’t be
changed. The original conception is only the starting point for the analysis and it evolves.
o Circumstances of the Transfer of Jurisdiction (in 1940):
o PM sent a letter to the provinces requesting to add Unemployment Insurance to federal powers
because it was in the best interest of the country and the provinces accepted.
o The purpose was to mitigated the effects of anticipated unemployment by giving unemployed
people benefits and setting up job search centres.
o The nature of unemployment in CAN has changed and it is necessary to evolve, but the
evolution must be consistent with the essential elements of the powers granted in 1940.
o Essential Elements of EI:
o Essential elements determined by adopting a generous readings of the words in their strict legal
context.
o 4 essential characteristics:
1. Public insurance program based on the concept of social risk.
2. The purpose is to preserve worker’s economic security and re-entry into job market.
3. By paying temporary income replacement benefits.
4. In the event of an interruption of employment.
o Maternity Benefits as an Insurance Measure
o Quebec argues that because maternity leave is voluntary there is no “risk” element.
o However in Brooks v Canada Safeway pregnancy was deemed an insurable risk for private
insurance plans. This means it should be the same in this public insurance context.
o Maternity benefits as an Unemployment Protection Measure:
o Quebec argues pregnancy cannot be deemed unemployment because a pregnant woman is not
capable or available for work.
o However the concept of unemployment has expanded with time, now it is simply understood as
an interruption in employment, voluntary or not.
o It also applies to sick people, who are not available to work.
o Obligations to seek work and be available to work are mechanisms for screening and providing
incentive to work, not essential characteristics of the constitutional power.

Double Aspect Doctrine

- Hogg would call it the double matter doctrine.
- Determination to be made after pith and substance.
- When we look at a law there might be more than one matter which are equally important.
- In this case the legislation will be valid subject to Federal Paramountcy in the case on conflicting laws.
o This has potential for excessive limits on provincial laws over time.
- A good example are provincial laws against speeding (both criminal and local highways).

WR Lederman: “Classification of Laws and the BNA Act” (1981)

- Mutual modification has greatly reduced problem of overlap between ss. 91 & 92. > Example limiting “trade and
commerce” to international and inter-provincial, while also limiting “property and civil rights” to provincial
business issues.
- However, in some cases both heads of power are engaged in ways that are relatively equal by the statute. In
those cases the double aspect theory and federal paramountcy apply.
Multiple Access Ltd v McCutcheon (SCC 1982)
- Facts:
o Ontario banned insider trading for corporations operating in the Toronto Stock Exchange with the
Ontario Securities Act while the Canada Corporations Act had practically identical provisions that applied
to federally incorporated companies.
o A federally incorporated company in Ontario was sued for insider trading, but the plaintiff did it under
the Ontario Securities Act, since the limitation period under the federal law had expired, so the
defendant argued that:
o The Act did not apply to them because they were federally incorporated.
o Alternatively, the Federal Paramountcy doctrine should apply.
- Issue: Doe the pith and substance of the provision of the Federal Act fall within the Federal head of power?
o YES but the double aspect doctrine applies so they are both relevant.
o The federal statute must remain valid, since there are several provinces were a similar provincial Act has
not being enacted, so striking it down would create a legal vacuum.
o The power of enacting laws about the incorporation of federal companies is under the fed because of
pogg. This power goes well beyond mere incorporation. It extends to maintenance of the company,
protection of investors, etc.
o Although the law deals with the trading of securities, in context they are company law.
o This law falls under both ss. 91 & 92 > Double aspect doctrine.
o Decided that neither federal paramountcy nor interjurisdictional immunity could apply and that this
area was concurrent, meaning both Acts are valid.
- Notes:
o Dickson J said in a later case that concurrent jurisdiction can create great complexity, so the double
aspect theory should be used with great caution.

Necessarily Incidental Doctrine (Ancillary Doctrine)

- Used in cases where the provision being challenged is invalid (in pith and substance), but it is part of a valid
larger scheme of legislation.
- Depends on how the impugned provision is integrated into the scheme and how serious the intrusion is.
- This, just like the pith and substance doctrine permits governments to intrude substantially (arguably even
more) in the other level’s jurisdiction without being deemed unconstitutional.

General Motors v City National Leasing (SCC 1989) > Fed has “general regulation of trade” / approach to necessarily
incidental doctrine
- Facts:
o City National sued GM under a provision creating a civil cause of action against discriminatory pricing
found in the Combines Investigation Act (a federal Act)
o GM argues that the whole act or alternatively the provision are beyond the jurisdiction of Parliament
because it falls under “property and civil rights” since it regulates intra-provincial aspects of
competition.
- Issue: Is s.33.1 of the Combines Investigation Act under Federal jurisdiction.
o YES:
o 3 Steps (must consider the provision and the Act as a whole):
1. Whether and to what extent does the provision intrude into provincial powers?
- If it doesn’t intrude under pith and substance and neither does the act then you’re done
with the analysis.
- If the act intrudes but the provision does not, then analyze the Act separately.
2. Is the Act as a whole constitutionally valid (in pith and substance)
- Always go to step 2.
- If it is not then end it here.
 3. Can the provision be justified in its connection to valid legislation?
- Only go here if the provision encroaches but the act is valid.
- Focus on the relationship between the provision and the Act.
- First must decide what test “fits” which depends on the degree of encroachment.
- Some overlap is expected so judicial restraint should be exercised.
- Examples of tests include: rational and functional connection, ancillary, necessarily
incidental, truly necessary, integral part, etc.
o Application of 3 steps to the case:
1. Whether and to what extent does the provision intrude into provincial powers?
- In this case the provision (on its own) prima facie intrudes provincial powers.
- However 3 factors make the intrusion less serious:
o Only a remedial provision to enforce other parts of the Act, not a substantive
part. This makes it less intrusive.
o It does not create a general cause of action, but a limited one.
o By precedent the fed is not precluded from creating rights of civil action where
needed.
2. Is the Act as a whole constitutionally valid (in pith and substance)
- Yes > move to step 3.
3. Can the provision be justified in its connection to valid legislation?
- Decides on functionally related test.
- It is justified since it is functionally related.
- It is integral, well-conceived component of the Combines Investigation Act, it would
even pass the stricter “necessarily incidental” test.
- Notes:
o This test also applies for provincial law encroaching on federal law.
o Courts have not always been consistent in the application of the necessarily incidental doctrine, opting
at times for the pith and substance doctrine without really explaining why.

B. Ryder: The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces
and First Nations (1991)
- Classical paradigm was the watertight compartments (mutually modified) doctrine, while the modern approach
(pith and substance/double aspect) allows more overlap and interplay within the heads of power.
- While both approaches have always been used through history, since post WWII the modern approach has been
dominant.
- The classical approach causes judicial activism by putting stringent constraints on legislation and creating
legislative vacuums.
- The modern approach is one of judicial restraint, maximizing legislative powers for both heads of power.
However in the end it strengthens the fed, by using the federal paramountcy doctrine when two statutes are
conflicting.

Quebec (AG) v Lacombe (2010 SCC)

- Facts:
o Lacombe provides commercial aerial and air taxi services out of Globeil Lake for which it has a federal
license.
o The municipality of Sacré-Coeur obtained an injunction from the Quebec Superior Court requiring
Lacombe to cease operations on the ground that his activity violated the zoning for Gobeil Lake.
o The zoning restrictions prohibited aerodromes in Lacombe’s area, Lacombe argued they were ultra vires
because the infringed on the federal power over aeronautics.
- Issue: Are the zoning restriction ultra vires for the municipality?
o YES
 o 2 Steps
o Pith and Substance: Regulation of Aeronautics.
- Purpose: Determined by examining intrinsic evidence.
o Stated purpose is to find a balance between the activities of summer home
owners and more commercial land uses.
o However the Hansard reveals that the actual purpose is to prevent float planes
from operating in the lake.
- Effect: Both the legal effect and the practical effects.
o Not mentioned in the extract.
o Assigning the matter to a head of power:
- It is clear that aeronautics are beyond provincial powers.
- Ancillary Powers Doctrine:
o A statute outside the head of power in pith and substance that can be saved by
being having a connection with a larger scheme which is in the correct head of
power.
o The degree of connection required depends on the degree of the
encroachment.
 Here the intrusion is not serious, so the rational functional test is
correct here. > Whether the impugned laws are rationally and
functionally connected to the larger scheme, so it should be saved as
part of the whole.
 Here it does not pass the test, since the by-law does not further land
use for the benefit of the general populace, but only for a few vacation
houses that do not want to be disturbed by the aerodromes.
 The law does not function as a zoning legislation, but rather as a stand-
alone prohibition on aerodromes.
 There is no evidence of a gap in the larger scheme that the impugned
by-law fills.
o Not to be confused with the incidental effects doctrine (where pith and
substance is within the appropriate power and the statute only incidentally
touches on the other head of power).
o Also not to be confused with the double aspect doctrine.

Applicability: The Interjurisdictional Immunity Doctrine

- A law might be valid but inapplicable in an area. This means there is no issue with the law itself, but a particular
application of it will be read down.
- A doctrine that emphasizes exclusivity of jurisdiction.
- It is based on protecting “core areas” of jurisdiction.
- It has been used to protect federal jurisdiction, although the SCC has said it goes both ways.
- The remedy is to read down the encroaching statute to protect the core of the other head of power. It does will
not struck down the law.
- Unlike federal paramountcy it does not require conflict in laws or even an actual law by the protected head of
power, so there is potential for legal vacuums.

Bell Cases
- First case was Bell Canada v. Quebec (1988) which said that provincial minimum wage laws did not apply to Bell
since it was a federal company and there was interjurisdictional immunity.
- In
Canadian Western Bank v Alberta (2007 SCC)
- Facts:
o Alberta passed laws regulating the promotion of insurance, which is partly done by banks and banking is
a federal power.
- Issue:
o Does peace of mind insurance fall within the core of Parliament jurisdiction of banking?
o Reasons for limiting Interjurisdictional Immunity:
- Courts should favour where possible the operation of statutes by both levels of
government and avoid blocking measures enacted to further public interests.
- Acknowledges the text supports interjurisdictional immunity, but states that applying it
creates problems. In practice “overlapping powers are unavoidable.”
- The requirement of developing an abstract definition of a “core” is not compatible with
Canadian constitutional interpretation, which favours an incremental approach.
- It can create legal vacuums since it does not require the government benefiting from
the immunity to actually regulate in the field in question.
- Also since it has been used mostly to protect federal powers, it can limit provincial
powers in excessive undesirable ways.
- It is also unnecessary since Parliament can, where needed, make legislation sufficiently
precise to leave no doubt as to the residual application of provincial laws (through
federal paramountcy).
o Restricting the application of Interjurisdictional Immunity:
- Not enough to require that the encroaching law affects an essential of the other head’s
power but it must be impairing.
- It must affect the core, meaning minimum content necessary to make a power effective
for the purpose for which it was conferred.
- Looks at precedent considering what the courts did, not what they said and concludes
that the core powers must be narrowly construed.
- The doctrine should not be first recourse, and it should only be used where pith and
substance and paramountcy do not resolve a matter.
- In the absence of precedent deciding the head of power, the federal paramountcy
doctrine should apply.
- There is no room for interjurisdictional immunity where the double aspect doctrine
applies (which makes you wonder if interjurisdictional immunity can ever be used).
o Notes:
- This decision was heavily criticized as an excessive limitation on a doctrine that does
have value and should have applicability.

Quebec (AG) v Canadian Owners and Pilots Association (2010 SCC)

- Facts:
o A private airstrip was built in Quebec, generally no prior permission is required and federal registration
is optional for private aviation.
o However, if you do register federally then you are subject to federal standards and the airstrip becomes
available to anyone who needs to land. This airstrip was registered.
o The lot where the airstrip was built was provincially designated as agricultural land, requiring
authorization by the province for any use other than agriculture. No authorization was obtained.
o Quebec ordered to demolish the airstrip on the ground that it was located in agricultural land and the
owners challenged the law since they claimed it was regulating the location of aerodromes.
- Issue: Does the application of the law to prohibit aerodromes impair the protected core of federal control over
aeronautics?
o YES
 o Pith and Substance (of the law, not this application):
- Purpose: Preserve agricultural lots and regulate land use within agricultural regions
- Effect: the same
- Result: It is legislation about land use planning and agriculture.
o Assigning the Matter to a Head of Legislative Power (of the law, not the application):
- It can fall either under property and civil rights, matters of local nature, or agriculture
which are all provincial.
o Interjurisdictional Immunity (for the application):
- Does it trench on the protected core?
o Aviation has been given to the fed under pogg. Including the regulation of
aircrafts and airports.
o Argument that local aerodromes are not of national interest like airports and
therefore not pogg is rejected. They are all part of a network and it is impossible
to separate inter-provincial from intra-provincial flying.
o SCC has consistently held that the location of aerodromes lies within the core of
the federal aeronautics power.
- Is the impact sufficiently serious (impairment) to apply interjurisdictional immunity?
o Yes, it impairs the federal power to decide when and where aerodromes should
be built.
o It does not sterilize the power since federal paramountcy could be used to
override the application of the law here, but it still impairing in requiring
Parliament to legislate specifically for aerodromes.
o To decide that where federal paramountcy can be used, interjurisdictional
immunity does not apply would distort the power of federal paramountcy.
 It would also prevent Parliament from enacting broad permissive
legislation. Forcing to establish a conflict with each provincial decision
regarding aerodromes. This is too burdensome.
o Federal Paramountcy:
- Not necessary to apply here since Interjurisdictional Immunity resolved the issue,
however the court decided to clarify this too.
- Two applications:
o Operational conflict:
 Fed says yes, Provincial says no; or vice versa.
 Here it is not the case, since fed law did not require the construction of
an aerodrome, so dual compliance is possible.
o Provincial law incompatible with federal purpose:
 Where dual compliance is possible, but the impugned legislation
frustrates a federal purpose.
 Here this could apply, but there is no clear proof that because the fed
made the registration of private aerodromes optional it was trying to
encourage the spread of aerodromes, so purpose is not clear.
o Deschamps Dissent:
- The law does not prohibit the construction of aerodromes in agricultural land, it merely
requires authorization to do so, and as such it does not impair the core.

Canada (AG) v PHS Community Services Society (2011 SCC)

- Facts:
o In 2008, the federal government failed to extend Insite’s exemption from the operation of criminal laws
in the Controlled Drugs and Substances Act.
 o The BCCA decided that the application of the Controlled Drugs and Substances Act to this medical
service was impairing on the core of the provincial health power. > AG appealed to SCC.
- Issue: Does Interjurisdictional Immunity exempts Insite from criminal law application, because Insite is a health
facility within the exclusive jurisdiction of the Province?
o NO
o In pith and substance the provisions are valid exercises of crim law. The protection of public health and
safety from the effects of addictive drugs is a valid criminal law purpose (Malmo-Levine).
o Three reasons to limit Interjurisdictional Immunity:
1. It is in tension with the dominant jurisdictional interpretation approach.
2. It is in tension with the emerging practice of cooperative federalism.
3. It can create legal vacuums since it does not require the government benefiting from the
immunity to actually regulate in the field in question.
o Reasons why the core is not impaired here:
1. The proposed core of the provincial power over health has never been recognized in the
jurisprudence. This is not determinative but courts are reluctant to identify new areas where
Interjurisdictional Immunity applies.
2. The proposed “core” has not been identified and could be potentially huge. Also criminal law
has historically overlapped with health care (Morgentaller).
3. If the doctrine is applied vacuums will be created for issues where criminal law might be
applicable like human cloning or euthanasia.

Operability: The Paramountcy Doctrine

- Exception: Some areas have concurrent jurisdiction as per the text of the CA 1867 and have federal or provincial
paramountcy written into the text in the case of conflict.
o Federal Paramountcy:
- Agriculture (95), immigration(95), and Interprovincial natural resources exports (92A)
o Provincial Paramountcy:
- Old age pensions and disability benefits (94A).
- Most areas of concurrent jurisdiction are dealt with the judicially created doctrine of federal paramountcy.
- The remedy is not to declare the provincial rule invalid or to read it down, but to suspend the operability to the
extent that it conflicts with federal legislation.
- Suspending the operability means that (unlike IJI) if the conflicting federal law is repealed and there is no conflict
the provincial law applies again > No legal vacuum.

Types of test for determining if there is a conflict:

Express conflict/Impossibility of Dual Compliance Test:
- Courts will allow both laws to operate unless it is impossible to comply with both laws.
- Narrowest interpretation of “conflict”.
- Most commonly used in the 70s and 80s to further federal cooperation.

Covering the field/Negative Implication doctrine:

- Parliament intended to enact a code that was complete, implying it was meant to oust any provincial laws in the
area.
- Mostly used in older cases. > Arguably making a comeback now, but only in combination with the other two
tests.
- Arguably not a test in itself.

Incompatibility of Objectives:
- Focus on the intention of Parliament, it is more prominent now and it can result in finding conflict where the
Impossibility of Dual compliance would not find conflict.
Ross v Registrar of Motor Vehicles (1975 SCC)
Covering the field & Dual Compliance test applied > not passed so both laws valid

- Facts:
o Ross was convicted of impaired driving and the judge decided to suspend his driving privileges except for
driving to work. His license was not to be suspended.
o The Registrar of Motor Vehicles in Ontario suspended his license for 3 months anyways in accordance
with the Ontario Highway Traffic Act (s21) which stated that those who were found guilty of impaired
driving should have their licenses suspended for 3 months.
o Ross sued to declare s21 invalid since it was in conflict with the CC.
o ON responding by seeking a declaration that s.238(1) of the CC which allowed the judge to request that
the license not be suspended was ultra vires.
- Issue 3: Since both laws are valid, is there a conflict requiring Federal Paramountcy to apply?
o NO: The federal laws do not meet the “Covering the field” test and the provincial laws are not in conflict.
o Civil consequences of criminal acts are not to be consider as “punishment” so as to bring the matter
within exclusive federal jurisdiction.
o S.238(1) does not deal generally with the right to drive a vehicle after a conviction, it only gives greater
flexibility to the judge so he does not have to declare a full suspension of driving rights.
o Mr. Ross can comply with both laws by simply not driving at all.
- Dissent:
o Judson J and Spence J: The provincial laws are in direct conflict with the judge’s order under the CC and
as such it should be rendered inoperative.

Multiple Access Ltd v McCutcheon (1982 SCC)

Dual compliance test applied, only duplication so provincial survives.

- Facts:
o Federal and Ontario statutes both regulating insider trading in securities with nearly identical provisions,
just different limitation periods, with the provincial one being longer.
o The federal law regulated federally incorporated companies while the provincial one regulates
companies trading in the TSE, so there is overlap.
- Issue: Can Federal Paramountcy apply where the provincial law duplicates the federal law?
o NO: “Mere duplication without actual conflict or contradiction is not sufficient to invoke the doctrine of
paramountcy”
o It might be untidy, but it does not meet the Dual Compliance test for conflict. The untidiness of
overlapping regulation is just a feature of federalism.
o The fact that the plaintiff has a choice of remedies does not mean both laws cannot live together and
operate concurrently. Even if applying one law in a case precludes the application of the other.
o A court can always prevent double recovery (suing and winning under both acts), so there is no issue
with that. In fact the provincial act requires court authorization to even begin proceedings, so it would
not be uneconomical (prevents two trials at once).

Bank of Montreal v Hall (1990 SCC)

Incompatibility of Objectives test applied, provincial law suspended.

- Facts:
o Hall a farmer contracted loans and gave interest in a machine as collateral.
o Hall defaulted on his loan and the bank attempted to seize the machine under provisions of the Bank Act
which allowed for immediate seizure without notice.
o The bank failed to comply with the Limitation of Civil Rights Act (provincial) which required a notice of
intention to seize. The penalty under the act was to release the debtor from the obligation.
 - Issue: Does the provincial law conflict with the Bank Act?
o YES: Dual compliance will be impossible when the provincial act can be fairly said to frustrate the
legislative purpose of the federal act. > here the purpose was to facilitate access to loans, by allowing
banks to immediately seize property on default.
o The provincial act requires a judge’s authorization for seizing an article if the debtor applies, while the
federal act’s purpose is to provide an immediate right to seize and sell.
o The “Covering the field” doctrine also applies here for the realization of a security interest, leaving no
room for provincial legislation > Mentions that IJI should apply here? But not brought up by the parties
so not decisive in this case.
- This paragraph confused a lot of courts as to when they should apply IJI and federal
paramountcy.

Rothmans, Benson & Hedges Inc v Saskatchewan (2005 SCC)

Dual Compliance is possible and the Objectives are the same

- Facts:
o The federal law banned promotion of tobacco products, but made an exception for store displays.
o The provincial law went further by banning even in-store displays.
- Issue: Is s6 of the Tobacco Control Act (Provincial) sufficiently inconsistent with the Tobacco Act (Federal) to be
inoperative under federal paramountcy?
o NO:
o Applies the dual compliance test and the incompatibility of objectives test.
o Decides that the federal law does not intend to create a right for retailers to display tobacco products, it
simply doesn’t ban it.
o Dual compliance is very much possible by not displaying the products.
o The legislative purpose is to protect people from inducement to use and usage of tobacco products, this
is not frustrated by the federal law.

Peace Order and Good Government

- Part of the validity analysis. If after pith and substance analysis the law is not clearly under any head of power
then it might be under pogg.
- Rooted in the opening word of s.91
- Main modern feature of use of pogg has been the re-emergence of the “national concern” doctrine, first used in
the Local Prohibition Case. This doctrine is less restrictive than the Emergency doctrine.
- One historical view was to read the opening words of s.91 as the whole federal power, while the listed classes
were only examples. This was Laskin’s view but it fell into disuse.
- The more mainstream view was to see the opening words of s.91 as a residual clause that would only apply were
something was not on the federal or provincial lists. It is in effect its own class.
- Three branches of pogg power.
o Gap Branch:
- The opening words of s.91 are read as granting a residual power (Jones v AG New Brunswick).
The pogg is meant to be the catch all basket for gaps in the division of powers in the
constitution. > Not discussed in this class.
o National Concern Branch:
- If it is matter of national concern then it should fall under pogg. (Canada Temperance).
- It applies the evolution principle, that issues that used to be local could become national as the
circumstance change.
- There is concern that it would be too expansive, so it is limited by indivisibility and singleness.
- It has resurfaced in recent years. For example in the aeronautics case.
o Emergency Branch:
 - Idea that pogg is only meant to deal with emergencies. It only applies on a temporary basis.
- This is the most restrictive doctrine for the application of pogg.

Reference Re Anti-Inflation Act (1976 SCC)

- Very relevant case for the Emergency doctrine and the National Concern Doctrine.
- It was also a landmark case for considering extrinsic evidence, in this case economic analysis by experts and
Hansard.
- In 1985 the Emergency Act was passed to clarify requirements and processes for the use of emergency powers.
The act requires:
o An urgent and critical situation of temporary nature. (including health, safety, sovereignty, public
welfare, public order etc.)
o The cabinet can declare an emergency, but it must provide a declaration with a description of the state
of affairs and it must be confirmed by Parliament.
o It also requires consultation and prior agreement of affected provincial governments, which must agree
they are unable to deal with the situation.
- The National concern doctrine would be later used in Houser (1979) to affirm the validity of the Narcotics Act,
the court found the control of narcotics to fall within “general residual power” like radio or aeronautics.
o However in Schneider (1982) the Heroin Treatment Act of BC was found intra vires, as treatment was
distinct from trafficking and addiction treatment facilities were a local, not a national issue.

Judges Profiles:

- Laskin J:
o He had a centralist vision of federalism.
o He grew up during the Depression and became a firm believer in the power of the federal govt.
o He believed that pogg gave general powers and the enumerated powers in s91 were only examples not
an exhaustive list.
o He thought the JCPC was wrong to allocate subjects to either head of power as “fields” of law making. In
his view this create an unnecessary territorial approach to jurisdiction.
o Instead he favoured looking at the purpose of a law, arguing that a “field” (e.g. wheat trade) could have
federal and provincial valid laws that applied. A particular view of the double aspect doctrine.
o Because of his view of the double aspect doctrine he disliked the Necessarily Incidental doctrine.
o He believe the fed was better suited to deal with more complex issues, which should be enforced
creatively by judges to serve social needs.
- Beetz J:
o He believed in closely following precedent, which for federalism cases from the JCPC protected
provincial powers.
o He was Quebecois and thought stare decisis was best to protect autonomy.
o His approach was more conceptual than functional, he preserved exclusive areas of jurisdiction by both
powers.
o He distrusted the National Concern Doctrine, because it would allow too much federal encroachment.
o He preferred the Emergency Doctrine.
o He also disliked the double aspect doctrine, since he thought it would result in federal paramountcy.

Actual Case:

- Facts:
o Wage and price controls were passed to deal with inflation, both areas were traditionally of provincial
jurisdiction. Wage increases were restricted for federal employees and companies with 500 or more
employees.
 o The Act did not touch provincial wages, but agreements were reached independently with provinces for
them to apply similar measures.
o The Act was drafted in a manner that would allow either the emergency or national concern doctrine to
apply.
o If the law was found intra vires it could seriously reduce provincial powers over economic regulation,
since regulation inflation could be done in a number of different ways.
- Issue 1: Is the Anti-Inflation Act valid under the emergency doctrine?
o YES (7-2)
o Laskin (Majority for emergency, minority for national concern):
- All the factors below show the Anti-Inflation Act is valid legislation for pogg, it does not under
the circumstances and being temporary invade provincial jurisdiction.
- 4 Factors:
1. Is the form of the act (exclusion of provincial public sector) enough to deem the
situation as not an emergency?
o NO: Most provinces agreed to apply the measure to the public sector, and most
of the jobs in the country fall under the Act anyways.
o It is also of temporary nature, which indicates it deals with an emergency.
2. Is the federal contention assisted by the preamble?
o YES: It is not decisive but it helps, since it clearly implies that this is about an
emergency. Even though the word “emergency” is not on it, but it only
mentions a “serious national concern”.
3. Does the extrinsic evidence support the contention that there is a crisis?
o YES: The standard is low, the govt only has to prove rationality of the legislation
and of the idea that there was a crisis.
o Extrinsic evidence included expert testimony from economists. It dealt with
whether there was an inflation crisis and with whether the measures taken
would have any effect in inflation.
o It is irrelevant that some economists says the Act will barely reduce inflation,
the court is not analyzing the effectiveness of the measure, simply the
rationality of applying it.
4. Can the Necessarily Incidental Doctrine apply (?) if it is construed as a necessary
measure to strengthen federal areas (e.g. monetary policy)?
o YES: Inflation is a monetary issue, monetary policy being of federal jurisdiction is
the “springboard” from which the law is enacted.
o Beetz J (Dissent for emergency, majority for national concern):
- Is inflation a federal area under the National Concern Doctrine and pogg?
- NO
- If it was then there would be very little left outside federal control. The necessarily
incidental doctrine could make laws like this one infringe on several provincial powers.
- If it was then other areas like environment, economic growth, insurance etc. could all be
argued to be of natural interest. The provincial powers would disappear.
- The pith and substance characterization is important, here characterizing the Act as a
about “inflation” is incorrect. It might be the purpose, but the court must look at the
operation.
- The means by which the govt could deal with inflation are numerous. This Act does so
by controlling profit margins, prices, dividends, and salaries. All those are areas of
property and civil rights, which are exclusively provincial.
 - While the courts have found areas like aeronautics and radio to be federal under pogg,
inflation does not pass muster. It lacks specificity, it is so pervasive that it knows no
bounds.
- Is there a national emergency?
- NO
- Concedes 3 things to begin:
o Emergency power is not limited to wars or natural disasters.
o Inflation could be an emergency.
o Parliament can act to prevent an emergency before it happens.
- 2 considerations:
o How does the emergency doctrine operate in the constitution?
 The emergency doctrine is clearly different than the national concern
doctrine.
 The emergency doctrine is temporary, while the national concern
doctrine is permanent in its result (e.g. radio)
 The emergency doctrine grants Parliament powers that amount to a
temporary unilateral amendment of the division of powers.
 Therefore it can only be used when there is no degree of ambiguity
about the situation and Parliament must give an unmistakable and
explicit signal that it is using emergency powers.
 It doesn’t mean Parliament has to use the words “emergency”, but
there must be a proclamation in the Act that leaves no doubt that
emergency powers are being used.
o Was the Act enacted to deal with an emergency in the constitutional sense?
 NO:
 The preamble lacks a clear proclamation of emergency powers, it only
says inflation is a serious national concern.
 There are also exemptions that imply there is no emergency.
 Unnecessary to look at extrinsic evidence, since he concludes
Parliament was not invoking emergency powers with the Act.
 Even if extrinsic evidence was relevant, it should include the Hansard,
which makes no mention of emergencies, just pogg powers.
- Issue 2: Is the Anti-Inflation Act valid under the national concern doctrine?
o NO (5-4): The validity of the law requires an emergency.

R v Crown Zellerbach Canada Ltd (1988 SCC)

- Facts:
o The Ocean Dumping Control Act was a federal act meant to prevent water pollution. It was passed in
accordance with international treaties.
o In pith and substance the act was found to regulate marine pollution generally.
o The issue at appeal is whether it applies to provincial marine waters.
o D is a Vancouver Island logger and maintains a log dump on water leased from the province, he dumped
logs which on the fact did not have any effect on navigation or marine life.
- Issue: Can the Ocean Dumping Control Act application to the dumping of substance that do not cause pollution
in non-fresh provincial waters be considered to fall under the federal power over fisheries?
o NO
o The federal govt has jurisdiction to regulate the dumping of substances at sea (federal property) and to
regulate provincial water where pollution is harmful to fisheries (under control over fisheries).
o The crown argues that in order to effectively meet its purposes the act must apply to the dumping of
any substances, not just those proven to be polluting.
 o The SCC finds that the power to protect fisheries does not give the fed the power to control marine
pollution generally in provincial waters.
- Issue: Can it fall under pogg under the national concern doctrine?
o YES
o Recognizes the evolution concept of provincial issues becoming national. It also recognizes that
legitimately new issues will be federal under pogg’s residual powers.
o For a matter to qualify as a national concern it must have a singleness, distinctiveness and indivisibility
that distinguish it from matters of provincial concern. It must also have a scale of impact on provincial
jurisdiction that is reconcilable with the distribution of legislative powers.
o Provincial inability test: Consider the effect on extra-provincial interests of a provincial failure to
effectively deal with the provincial aspects of the matter.
- Prof. Hogg thinks this is the most satisfactory rationale for the national concern doctrine.
- Does not mean the whole matter would become federal, only the part that is beyond provincial
control.
- This test does not grant plenary power over the matter to the fed. It only assist in determining
whether a matter has the singleness or indivisibility from a functional and conceptual pov.
o The question then becomes if controlling pollution by the dumping of substance in marine waters
(including provincial) can be considered a single indivisible matter, distinct from the control of pollution
by dumping in other provincial waters (non-marine).
- The UN report supports the idea that marine pollution is a separate matter from other kinds of
pollution.
- The SCC finds that there is great difficulty in visually establishing the limits between the sea
(federal and internal marine waters (provincial), this creates unacceptable uncertainty in
applying the law. > Supports the idea that marine water pollution is indivisible.
o Is marine pollution sufficiently distinguishable from fresh water pollution?
- Because fresh water flow into marine waters they are intertwined.
- But as the UN report indicates there are significant difference from a scientific POV.
o Would there be reasonable and ascertainable limits to the application of the law?
- Yes, unlike the Anti-Inflation case where inflation could not be easily defined, here the limit
would be between salt and fresh waters, which is easy to apply.
- Dissent (La Forest J +2)
o Start with the proposition that the act regulates an activity wholly within the province in provincially
owned land.
o Because wood does not affect marine life, this cannot be under fisheries and could only be saved under
pogg.
o Pogg analysis:
- Effective pollution control requires stopping pollution at the source, this would give the fed very
large jurisdiction over provincial water in the case of pollution under the national concern
doctrine.
- This jurisdiction is made even bigger considering that “criminal” or punitive provisions would be
applied to enforce the pollution prevention laws.
- There is a clear problem with the potential breadth of the federal power to control pollution
under pogg.
- This provision is a blanket prohibition on dumping any substance in the water, regardless of its
nature or amount.
- If this provision was valid then any federal regulation on emissions could be applicable to
provincial companies and the fed would have a monopoly over “pollution” that would unduly
encroach in provincial powers. > Like the Anti-Inflation case.
 - Recognized that the fed is not asking them to create a fed power over all pollution, just ocean
pollution. However, even ocean pollution is not indivisible, distinct and single.
- Marine waters are not wholly bounded by the coast, they can go many miles up rivers.
- The line between salt and fresh water cannot be demarcated clearly and it can change
with the season.
- Pollution of ocean waters happens largely because of fresh water pollution that gets
dumped to the ocean, it also includes air pollution that is deposited in the sea.
- To make all marine pollution federal would unduly encroach on “civil rights and property”
affecting multiple industries that work in the coast (e.g. construction hotels, mine, and
recreational activities).
- Also relevant that in this case the fed is attempting to regulate activity that does not pollute. So
the provision overreaches.

Notes
- The provincial inability test has also been used to expand s.91(2) the trade and commerce power in General
Motors of Canada v City NATIONAL Leasing (1989 SCC).

Jean Leclair “The Elusive Quest for the Quintessential National Interest” (2005)
- Although the SCC said that a matter must be functionally and conceptually indivisible the application of the test
in Crown Zellerbach only looked at the functional not the conceptual part.
- The doctrine should not, as it did in Zellerbach, give the fed property over a matter, but rather the power to
regulate in relation to such matter.
o The dissent recognized this when it said that they should not be concerned about the types of water and
how to tell them apart, but about their pollution which required control at the source.
o If the majority had done a careful analysis of the legislative means necessary to regulate marine
pollution, they would have recognized like the dissenting judges did that treating marine pollution as a
national issue would unduly encroach in provincial issues.
- The indivisibility test must be applied to the matter said to be of national interest and not to the legislative
means employed to regulate.
- The conceptual indivisibility of a matter should hinge upon whether the totality of legislative means necessary
for its overall regulation amounts to an important invasion of provincial spheres of power.
- It is not clear when the court applied the provincial incapacity test whether this is referring to political
unwillingness or legal incapacity.
- The provincial inability test applied gives the impression that in Canadian federalism functionality should trump
over all other values.

Sujit Choudry “Recasting Social Canada: A Reconsideration of Federal Jurisdiction over Social Policy (2002)
- The basic intuition of the provincial inability test is that the fed should act in those circumstance where the
provinces are unable to act.
- Hower, it is not really about jurisdictional/legal inability, but rather lack of political will or incentives that disuade
provinces from acting.
- The provincial inability test can apply in three circumstances:
1. Negative Extra-Provincial Externalities:
- Seeks to prevent the externalization of costs of provincial public policies to other provinces or
the federal govt.
- In Interprovincial Co-Operatives v Dryden Chemicals (1976 SCC) Manitoba fisheries were being
affected by mercury discharges occurring in Ontario.
- The court decided to apply the provincial inability test because Manitoba could not
protect itself.
- In this context provincial inability does not mean that no province can regulate the
issue, simply that Ontario would not.
 - The SCC must have reasoned that the incentives would not facilitate provincial co-
operation and Ontario would keep polluting.
- Therefore the decision was really based on the risk of provincial non-cooperation, not
inability to act.
2. Collective Action Problems:
- Inter-Provincial Collective Action Problems
- When an issue requires regulation to be national in scope and if one or more of the
provinces does not cooperate the desired result cannot be obtained.
- This is similar to the externalities issue.
- An example are provincial races-to-the-bottom (e.g. in minimum wage or health and
safety standards). It is more desirable to have a single law that regulates the issue.
- Another example is public goods like national defence. Here the cost of providing
benefits to an additional resident is zero, meaning someone can benefit without
contributing to the costs of funding it. If this happens in a provincial context with extra-
provincial free riders then a province might have an incentive to under-produce the
good.
- Again these are not really issues of inability as much as they are about unwillingness to act.
3. True Provincial Inability
- An example is regulating territories, which provinces cannot do.
- This is more a case of constitutional inability, since the province could not do it even if they
wanted.
- In the case of the territories it is redundant to say they are federal due to pogg since they
subject matter (continental shelf) is already under federal jurisdiction.

Criminal Law
- Two key issues arising from granting criminal law to the fed in CAN:
1. The scope of the federal power (potentially limitless)
- Court have sometimes interpreted it unrealistic broadly
- In Propietary Articles (1931) the SCC said it included all acts that are prohibited with
penal sanctions. (formal requirements)
- They have also interpreted it unrealistically narrowly
- Only those areas that have been traditionally criminal (Reference Re Board of
Commerce)
2. Constraints on provincial attempts to control local conditions of public order and morality.

The scope of the federal power

Reference Re Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference) (1949 SCC)
Look at the evil targeted, not just the formal requirements

- Facts:
 Until this case margarine was banned in Canada due to pressure from the dairy industry.
 NF still produced margarine but it became part of Canada in 1949 and it requested to keep producing
margarine.
 The section states: “No person shall manufacture, import into Canada, or offer, sell or have in his
possession for sale any oleomargarine, margarine, butterine, or any other substitute for butter,
manufactured wholly or in part from any fat other than that of milk or cream…”
- Issue: Is s 5(a) of the Dairy Industry Act intra vires for the fed as crim law?
 NO: Not every act with a prohibition and a penal sanction is criminal, this one deals in pith and
substance with property and civil rights.
  The crown tried to characterize the section as criminal because it was a prohibition.
 The court accepted the Proprietary Articles idea that not every criminal law must carry a moral taint.
 However, it established that a court can look for the injurious or undesirable effect against which the
law is directed. This includes social, economic and political interest.
 Also stated that the courts should look at the purpose which gives evidence of the true nature. In this
case the context was protecting the dairy industry.
 There is no moral issue here, only helping one economic group at the expense of the other.
 However, not the entire act was found ultra-vires since limits on imports were under the fed’s
jurisdiction of regulating foreign trade.

Notes
- Despite the Margarine Reference courts have tended to consider laws criminal if they meet the formal
requirements of having a prohibition and a penalty. There are however exceptions listed below:
- Boggs v The Queen (SCC 1981) where the court struck down a section of the CC that made it an offence to drive
with a suspended provincial driver’s license. This was problematic since license suspensions could be given for
breach of provincial regulations or failure to pay taxes. They decided there was no public interest in criminalizing
a provincial regulatory scheme.
- Dominion Stores v The Queen (SCC 1980) where a law made it criminal to not meet the standards when using a
voluntary grading system for marketing of agricultural products.
- Labatt Breweries of Canada v AG Canada (1980 SCC) the court refused to find federal commodity standards for
food valid as crim law. The court found there was no consumer protection sice the law was not directed at the
adulteration of food or false advertising.
- Ward v Canada (AG) (2002 SCC) found that a regulation under the federal Fisheries Act that prohibited the sale
of baby sals was not an exercise of the criminal law. This was because the legislative history suggested that the
legislation was made to manage fisheries by eliminating large-scale killing of baby seals. However the law was
upheld under the power of regulating fisheries.

RJR MacDonald Inc v Canada (AG) (1995 SCC)

Crim law not frozen in time and affirms Margarine Reference test

- Facts:
 The Tobacco Control Act prohibited all advertising and promotion of tobacco products offered for sale in
Canada, it also required displaying health warnings on all tobacco products.
 Penalties ranged from $2000-$300,000 and from 6 months to two years imprisonment.
 The purpose section stated that it was a response to a national public health problem of substantial and
pressing concern. It quoted scientific evidence of the harm of tobacco.
- Issue: Does the Act infringe provincial jurisdiction over advertising?
 NO: It is criminal law in pith and substance.
 The court states that the initial overly broad definition of criminal power from Proprietary Articles was
rightly limited by the Margarine Reference.
 After the Margarine Reference courts have to identify the evil or injuries effect at which a penal
prohibition is directed.
 This act meets the formal requirements from Proprietary but the key question from Margarine
Reference is whether it has an underlying criminal purpose.
- Here the evil targeted is the health effects of tobacco products which is a valid concern.
- Health is not an enumerated head, but an “amorphous” topic which can be addressed by valid
federal or provincial laws. There is precedent stating that health concerns can be addressed with
crim law.
- Also criminal power includes dealing with dangerous goods which can be done through labelling.
 - Since the objective is to protect the public from dangerous goods it is criminal in pith and
substance.
 There are good reasons why a govt would prefer to address tobacco consumption through advertising
regulations rather than a prohibition. Cites alcohol prohibition disaster and problems with addiction.
- Compare with baby seals case where it was found that the goal in p&s was stopping
industrialization of sales of baby seals (fisheries), here the aim was to stop the evil of smoking.
 Rejects the view that since tobacco advertising is not historically criminal it cannot become criminal.
Instead states that crim law is not frozen in time and that parliament has the power to create new
crimes where necessary.
 Exceptions for imported publications do not mean it is not criminal because crim laws can validly contain
exceptions. Parliament has sovereignty to make exceptions.
- In this case the exception is necessary to avoid both the extraterritorial application of Canadian
laws and the page-by-page censoring of foreign publications.
- Also imported tobacco products are less than 1% of the market.
- Dissent (Major and Sopinka)
 Concedes that the fed can legislate hazardous, unsanitary, adulterated and otherwise dangerous foods
and drugs through crim law.
 It follows that the fed can require manufactures to place warnings on tobacco products.
 However, parliament cannot under crim law ban all advertising and promotion of tobacco products and
restrict the use of trademarks.
 Although there is no definitive test for what is crim law, not every harm or risk is serious or grave
enough to warrant applying crim law.
 At the heart of crim law are prohibitions of conduct which interferes with the proper functioning of
society or which undermines the safety and security of people.
 Although crim law is not frozen in time, the historical regulation of a field is relevant and should be the
starting point.
 Advertising is only persuasion which, although undesirable, is not in the dissent’s view crim conduct.
Advertising by itself is not dangerous enough to be a criminal activity.
 While the exceptions are not decisive, they can create a presumption that the law is not truly criminal. It
is also not as minimal as the majority thinks, in fact 65% of the media consumed is foreign.

R v Hydro-Quebec (1997 SCC)

- Facts:
 Hydro was charged with violation of an interim order made by the Minister of the Environment
restricting its emission of PCBs made under the Canadian Environment Protection Act, which established
a process for regulating the use of toxic substances.
 The preamble of the act stated that the presence of toxic substance is a matter of national concern and
reference the need to meet international obligations.
 Hydro claimed that the two sections of the act that allowed the order were ultra vires.
 They succeeded in Quebec, but the fed appealed to the SCC claiming it was valid under pogg and crim.
- Issue: Are the provisions valid exercises of criminal law?
 YES
 The constitution is interpreted to provide ample means to protect the environment to both levels of
govt. which is inconsistent with the “national dimensions” doctrine.
 Also we must be careful to avoid mixing the analysis of one head of power under another. Here the
national dimensions doctrine is a pogg doctrine not a criminal law doctrine.
 The criminal powers are plenary except for cases where it is used colourably.
- The test is to enquire into Parliament’s purpose in enacting the legislation (Margarine)
- It has been “accepted that some legitimate public purpose must underlie the prohibition”.
 - In this case the protection of the environment is clearly a sufficient public purpose to support a
criminal prohibition because it is an “interest threatened” which Parliament can legitimately
“safeguard”, or put it another way an “evil” that Parliament can seek to “suppress”.
 “The purpose of crim law is to protect our fundamental values and the stewardship of the environment
is a fundamental value of our society. Parliament may use its criminal law power to protect that value.”
- This does not mean that the court is applying the pogg “national concern” doctrine.
- The national concern doctrine would assign full power to Parliament for them to regulate an
area.
- The fundamental values analysis simply ensures that there is no colourability by identifying the
specific purpose.
- More importantly it is not an encroachment on Provincial powers since it is a legitimate use of
crim law.
 Hydro argues that the definition of “toxic substances” in s.11 is overly broad, which makes this an
infringement on provincial powers. However, this interpretation does not consider the scheme of the
act which further limits the definition.
 Also, s.11 is not really a definition rather it sets the requirements (in quantity and characteristics) for a
substance to be considered toxic.
 The law does not deal with environmental protection generally, only with toxic substances released to
the environment in specific circumstances. It doesn’t ban all chemical products, it only affects those that
are dangerous to the environment.
 This merely acknowledges that Parliament is in no position to identify what chemicals are dangerous, so
they delegate this to experts at the agency.
- Dissent (Lamer and Iacobucci)
 Disagree with La Forest that s.11 is not a definition or that it is simply a drafting tool. In fact it is the only
criteria given to define the word toxic.
 Therefore the pith and substance of Part II of the act lies in the wholesale regulation by the fed of any
and all substances which may harm the environment in any respect or present a danger to human
life/health.
 Two requirements for a valid criminal law:
1. Must contain prohibitions backed by penalties (Proprietary)
- These laws are more an attempt to regulate environment pollution than to prohibit it,
so they extend beyond criminal law.
- Here it is not that there are many exceptions, rather the act is fundamentally regulatory
not criminal.
- For something to be an exemption there must be a prohibition from which the
exemption is derived. Here there are no prohibitions.
- Criminal prohibitions must be self-applied by the people to whom it’s addressed, usually
without the intervention of an admin agency.
- Usually officials only get involved with the penalty after the prohibited act has occurred.
- Here there is no offence until an admin agency intervenes and they have huge discretion
in selecting the chemicals that are prohibited and in taking action.
- The act in s.34(6) includes an exemption for provinces that have equivalent
requirements, which is not something done under criminal law.
- Also the environment is an area of shared legislation and the fed should not be allowed
to fully occupy it.
2. Must be directed at a legitimate public purpose (Margarine)
- It is, the regulation of the environment is a legitimate purpose.
Notes
- The decision was criticized for removing the requirement of prohibition and penalty for a crim law. In the view
of critics this allows the fed to justify almost anything as criminal.
- It has also being praised for allowing the fed to regulate the environment, whom in theory should be more
efficient than the provinces.
- This ruling might be used for the fed to continue to regulate marihuana under even if they decriminalize it.
Although presumably it would become divided into different areas and different jurisdiction if there is no longer
an absolute prohibition. Some of those areas could be provincial jurisdiction.

Reference Re Firearms Act (SCC 2000)

- The fed passed gun control legislation in 1995 banning or restricting the use of certain types of firearms and
amending the existing CC provisions related to firearms. It establish a licensing system and a national
registration system for all firearms. Failure to comply was penalized under the CC.
- Firearms licensing had always been part of the CC, but the Act made it so that it included “ordinary arms” (e.g.
rifles and shotguns). It also gave a more detailed regulation of licences.
- Of course the Act was challenged by Alberta.
 They argued it was regulatory instead of criminal because of the complexity of the legislation and the
discretion given to the chief firearms officer.
 They argued it was indistinguishable from vehicle or land title registries.
- The SCC found that the law fell within crim law, continuing the expansive interpretation of crim law power.
 They found that the law was in pith and substance directed to enhancing public safety by controlling
access to firearms through prohibitions and penalties.
 Formal requirements
 They found that while there are regulatory aspects they are secondary to the criminal aspects.
 They also though that although the act was complex this did not make it regulatory in nature.
 It also met the formal requirements because it had a section prohibiting the possession of a
firearm without a registration and it was backed by penalties.
 Legitimate criminal purpose
 The reason why it had a legitimate criminal purpose is because guns are dangerous and pose a
risk to public safety.
 This also distinguished it from registering cars or land titles.
o The SCC also considered whether it would upset the balance of federal-provincial powers (new test).
They found it didn’t

Reference Re Assisted Human Reproduction Act (QCA 2008)

- In 2004 Parliament enacted the Assisted Human Reproduction Act criminalizing some technologies and activities
related to assisted reproduction.
- They banned cloning, creation of in-vitro embryo for purpose other than creating a human, the creating of
hybrids or chimeras for transplants etc.
- They also stated it protected the principle of non-commercialization of the human body. To do this they banned
payments to surrogate mothers, as well as purchase of ova, sperm, in vitro embryos, and human cells or genes.
- They also banned the use of human reproductive material for the purpose of creating an embryo without the
donors consent. As well as the removal of ova or sperm from those under 18.
- The act also limited research in assisted reproduction, requiring research ventures to get approval from fed.
- Quebec challenged the law saying it infringed provincial powers of regulation of medical practices, while the fed
argued they were criminal or alternatively under the double aspect doctrine.
- The fed said the purpose is to protect health, safety, and public morals.
- The Quebec court of appeal decided in favour of the province.
o They found there was no evil to be repressed.
 o They said that if the act was valid crim law then few if any cutting-edge medical activities would escape
criminal control. Those new activities should be controlled with medical standards not criminal law.
o Alternatively they found that the provisions were regulatory not punitive.
 There are no offenses defined in the Act but depend on the discretion of the government. The
act does create some prohibitions but those do not forbid undesirable activities, they just create
a legal framework to ensure reproductive activities are carried out in specific environments.
 The Act also contains provisions regulation the collection and use of information in assisted
reproduction. The objective is to ensure compliance with the regulations, not to brand the
offender with the stigma of a criminal conviction.
 Finally s.68 creates an unusual situation in which the same action can be a crime in one province
but not another by authorizing the fed to order that provincial rules be equivalent to its own.
Because a standard might be equivalent without being identical it is possible for the prohibition
to vary from province to province.
- The case went to the SCC, where a split decision found some of the provisions to be a valid exercise of criminal
law.

Provincial Power to Regulate Morality and Public Order

- Tension between fed’s power over crim law and provincial need to respond to local conditions of public order
and morality.
- Three ways to recognized local interest in crim law:
1. The provinces have jurisdiction over the administration of justice and delegated power to prosecute CC
offences. > So a lot of the CC is provincially enforced.
2. Conditional Legislation: In some cases the fed had drafted its crim laws to allow them to be shaped by
the provinces (e.g. Lord’s Day Act applied “except as provided in any provincial act”)
3. There can be judicial recognition of concurrent jurisdiction (double aspect) in issues subject to crim law.
Also s.92(15) allows for ancillary penal provisions to enforce provincial laws. Provinces can also give civil
consequences to crimes.
- Courts have generally allowed a lot of concurrency (double aspect doctrine) following the early precedent set in
the Temperance cases. However, from time to time provincial laws have been struck down for infringing on crim
law.

Re Nova Scotia Board of Censors v McNeil (SCC 1978) found not criminal in p&s
- Facts:
o Nova Scotia enacted the Theatres and Amusements Act which regulated and required licensing for the
showing of films, requiring all films to be approved by a censor board.
o The censor board had very high levels of discretion.
o Sanctions included monetary penalties and revocation of a theatre owner’s license.
o After Last Tango in Paris was banned a journalist sought a declarations that the provisions of the Act
were ultra vires. The issue was on constitutionality because it was pre-charter.
o He was granted public interest standing and the declaration was granted by the SCNS and the AGNS
appealed to the SCC.
- Issue: Is the Theatres and Amusements Act an intrusion into crim law?
o NO: The Act is directed to the regulation of the film business within NS, so it falls under property and
civil rights.
o The impugned provisions are enacted to reinforce the provincial authority to regulate this industry.
o It only regulates transactions occurring within the province.
o The Act does not create a criminal offence or punishment, it only regulates business activities.
o Morality and criminality are far from co-extensive and only because the Act can be used to regulate
morality does not make it criminal.
 o Even if it was considered criminal it is preventive rather than penal and the province can pass legislation
directed towards prevention of crime.
o This is not to say that the fed cannot regulate morality, but provinces can also do so when regulating a
local trade.
o Although showing the film does not violate the CC a province can still censor it.
o Alternatively Canada is diverse and it can fall under local and private nature in the Province.
- Dissent (Laskin): YES
o The determination of what is decent or indecent or obscene in conduct or in publication is within the
exclusive power of the fed under crim law.
o Crim law has been recognized as being as much of a brake for provincial legislation as a source of fed
law.
o This is not a case where civil consequences are attached to a criminal conduct, but rather a case where a
provincial authorized tribunal itself defines and determines legality.
o This is a direct intrusion into crim law or at best NS seeking to supplement crim law which is also
forbidden.
o Technically there is no penal provisions only prior restraint, but licensees in violation risk losing the
license. The form should not be allowed to mask the substance.
o The argument that provinces can license the use of premises and that it should extend to what is shown
in those premises does not stand. This case is about censorship of films not about premises.

Westendorp v the Queen (1983 SCC)

- Facts:
o Westendorp was charged with being on a street for the purpose of prostitution in contravention s.61 of
a Calgary bylaw.
o Penalties outside of s.6.1 went up to $300 and 60 days imprisonment.
o In June 1981 the bylaw was amended to include s.61 an explicit provision dealing with prostitution and
harsher penalties up to $500 and 6 months in prison only for s.6.1.
o Westendorp challenged the constitutionality of s.6.1.
- Issue: Is s.6.1 an invasion of the criminal law power?
o YES: The pith and substance of the law is controlling or punishing prostitution.
o Nothing in the rest of the by-law is related to s.6.1 so it must stand on its own. (no necessarily
incidental)
o The by-law is clearly an attempt to control or punish prostitution.
o There is no connection to use and enjoyment of property.
o The lower court was wrong to consider this an attempt to control private nuisance.
o To allow this provision would go beyond any double aspect principle and authorize a province to usurp
exclusive federal legislative power.
o While it might be desirable for a province to prohibit prostitution they are over-reaching in this case.
- Class:
o One of the reason why some things should only be criminal is because of the procedural protections
associated with criminal law like requiring proof beyond reasonable doubt and evidence rules.

Chatterjee v Ontario (Attorney General) (SCC 2009)

- Facts:
o Mr. Chatterjee was arrested in Ontario for breaching his bail conditions.
o The officer who arrested him searched his car and found $29,020 in cash, an exhaust fan, a light ballast
and a light socket – all of which smelled of marijuana.
o The police seized the property. Chatterjee was never charged with any offence related to this search,
but the Ontario government applied to the courts to permanently seize the cash as proceeds of unlawful
activity and to confiscate the items as instruments of unlawful activity.
 o The forfeiture was brought arguing that the money in Mr. Chatterjee’s possession was, more likely than
not, proceeds of crime. (balance of probabilities)
o The government’s application was based on an Ontario law that allows the province to forfeit property
that is located in Ontario if it is proved to be the “proceeds” or “instruments” of unlawful activity.
- Issue 1: Is the law criminal in pith and substance?
o NO: The court concluded that its purpose is to use the proceeds of crime to compensate victims and the
public for the costs associated with criminal activity.
o The Court concluded that the law focuses on property and the effects of crime, rather than adding
additional penalties to federal crimes.
o The Court said that provinces are permitted to deter crime and deal with its financial consequences as
long as they are acting within their provincial powers and the provincial laws do not interfere with the
proper functioning of federal criminal law.
o It falls under the provincial power over “property and civil rights” and “matters of a merely local and
private nature.
- Issue 2: Does it interfere with criminal law
o NO: The double aspect doctrine apples.
o Provinces have the power to deter crimes.
o If the law interfered with the federal law of forfeiture then the federal paramountcy rule would apply
rendering the law inoperable to the extent that it interferes with criminal law.

Flexibility in Federalism
- Constitutional amendments (e.g. unemployment insurance)
- Judicial interpretation (e.g. changing definition of pogg power)
- Policy Instruments:
o Federal Spending Power
 Not something listed in the constitution, so calling it a “power” is more of a practical definition.
 Refers to the fed raising revenue and spending it on things in provincial jurisdiction.
 Usually it happens as a payment, grant, or contribution.
- An example is payments to the poorer provinces to ensure they can provide services.
 It might have conditions attached to it.
- For example for healthcare the fed gives a payment subject to the provinces acting
under the Canada Health Act.
- The SCC has generally found that it is constitutionally legitimate for the fed to attach
conditions to their payments.
- This is justified because programs funded by the federal spending power might not
otherwise exist, since provinces do not have the same taxing powers as the fed.
o Intergovernmental Agreements
 When the fed and provincial governments agree on a certain policy.
 It is closely interrelated with the Federal Spending Power.
 It is the way most national standards are implemented.
 Applicable in relation to health care and welfare.

Quebec (AG) v Canada (AG) (SCC 2015)

- Facts:
o Fifteen years ago, this Court determined that Parliament, acting under its power to legislate in relation
to criminal law, had the constitutional authority to establish a nationwide gun control scheme.
o Three years ago, Parliament reversed in part that earlier policy choice: it repealed the legislation that
had established the long-gun registry within the gun control scheme, and provided for the destruction of
the data it contained.
 o When the fed passed the new law Quebec expressed its intention to create its own provincial gun
control scheme and asked Canada to give it the data on long guns connected with the province.
o The fed refused.
o As a result, Quebec challenged the constitutionality of the federal law providing for destruction of the
data and sought an order requiring the federal government to turn it over.
- Issue: Is the destruction of the long-gun registration records without first making this data available to provinces
seeking to establish their own registries constitutionally correct?
o YES: The principle of cooperative federalism does not constrain federal legislative competence in this
case.
o Quebec has no legal right to the data, and s. 29 of the Act to amend the Criminal Code and the Firearms
Act is a lawful exercise of crim law.
o Competing views about the merits of Parliament’s policy choice are not at issue here.
o The courts are not to question the wisdom of legislation but only to rule on its legality.
o The Canadian Firearms Registry (“CFR”) flows directly from federal legislation and is not dependent on
any provincial statutes.
 Different considerations might arise in the case of interlocking federal-provincial legislation.
o Cooperative federalism:
 “A network of relationships between the executives of the central and regional governments
[through which] mechanisms are developed, especially fiscal mechanisms, which allow a
continuous redistribution of powers and resources without recourse to the courts or the
amending process”.
 From this descriptive concept of cooperative federalism, courts have developed a legal principle
that has been invoked to provide flexibility in separation of powers doctrines, such as federal
paramountcy and interjurisdictional immunity.
 However cooperative federalism is still limited by the text of ss.91&92, particularly when there
is disagreement between the fed and provinces. It cannot impose limits on otherwise valid
exercise of legislative competence.
 Cooperative federalism cannot impose a positive obligation to facilitate cooperation where the
constitutional division of powers authorizes unilateral action.
- To do so would undermine parliamentary sovereignty.
- It could also discourage cooperative federalism for fear that taking cooperative measure
could discourage future ability to act alone.
o Is s.29 criminal in P&S?
 YES: The “matter” of s. 29 is simply to determine what will happen with the data collected under
a now repealed legislative scheme. Because the “matter” of the repealed scheme was public
safety then it follows that the repealing provision is also about public safety.
 In classifying legislation that undoes an existing legislative scheme, due regard must be paid to
the proper classification of that scheme.
 There is no issue with the repeal part because an enactment repealing a criminal offense is
clearly criminal law since the “matter” of that law comes within the same criminal law subject as
did the provision it seeks to repeal.
 Quebec submits that the pith and substance of s. 29 of the ELRA is to prevent the long-gun
registry from being continued through provincial legislation. But it fails to consider the role that
the registry played in the legislative scheme.
 Just because the fed goal in destroying the data might be to prevent provinces from creating
their own registry does not make the provision colourable.
o Dissent:
  Where an integrated scheme such as this requires the exercise of both federal and provincial
legislative powers, the analytical framework for questions related to the division of powers must
be adapted and applied accordingly.
 s. 29 goes beyond being a repealing statute, as it requires that the data in question be destroyed
without providing for a possibility of their first being transferred to the provincial partners.
 This section has significant effects on Quebec’s legislative powers and is not necessary to the
achievement of the ELRA’s purpose. S.29 is therefore unconstitutional and invalid.
 Although s. 29 is unconstitutional, Quebec has failed to establish a legal basis for requesting a
compulsory transfer of the data. This is a matter for governments to decide on, not courts.
 Ancillary Powers:
- The doctrine is limited to situations in which the intrusion on the powers of the
other level of government is justified by the important role that the extrajurisdictional
provision plays in a valid legislative scheme.
- In our opinion, the federal-provincial partnership with respect to firearms control is
consistent with the spirit of co-operative federalism.
- Quebec is challenging the validity of a provision that contributes to the dismantling of a
partnership that was created in the spirit of cooperative federalism. This situation is
unique and novel.
- The dismantling of a partnership like the one established with respect to gun control
must be carried out in a manner that is compatible with the principle of federalism.
- Parliament or a provincial legislature cannot adopt legislation to terminate such a
partnership without taking into account the reasonably foreseeable consequences of
the decision to do so for the other partner.
- Courts must be aware of the impact of that legislation or provision on the other
partner’s exercise of its powers, especially when the partner that terminates the
relationship is intentionally bringing about that impact.
- The Firearms Act had the effect of making Provincial gun registries unnecessary. But it
required provincial collaboration to gather the information.
- The destruction will have the consequence of compromising the development of a
provincial registry. This makes the encroachment significant.
- The encroachment is unnecessary to end the federal registry so it cannot be saved
under the ancillary doctrine. It is also not rationally connected.
- The intention or p&s is to cause harm to the province, so it cannot be connected to a
criminal law.
 Decision does not mean that Parliament cannot destroy the data, but to do so without offering
to transfer it is unconstitutional.

Administration of justice and the constitutional protection of superior courts

Judicial Review
- Judicial review has been long recognized in Canada, since 1982 it has also been affirmed in s.52(1) and s.24(2) of
the Charter.
- Courts are sometimes asked to declare legislation unconstitutional not because of a conflict with the written
constitution but with underlying constitutional principles. The legitimacy of judicial review can be questioned in
such cases.

British Columbia v Imperial Tobacco Canada (SCC 2005)

- Facts:
 o An act authorized an aggregate action by BC govt against tobacco manufacturers for the recovery of
health care expenses in treating a population exposed to tobacco products. The action was based on
breach of duty by selling cigarettes.
o The act provided for special evidentiary and procedural rules. It was also made retroactive to the 1950’s.
This was done to make it easier for the govt to win.
o Imperial Tobacco was sued under the act and they challenged the law on 3 grounds:
 Jurisdiction (at trial the act was found ultra vires for being extra-territorial)
 Judicial independence (govt won at trial)
 The rule of law (govt won at trial)
o The BCCA reversed the jurisdictional decision as incidental to the p&s and agreed that there was no
issue with judicial independence or the rule of law.
- Issue 1: Does the act violate judicial independence?
o NO
o Judicial independence is a foundational principle of the constitution reflected on s.11(d) of the Charter
and in ss.96-100 and the preamble of the CA 1867.
o Judicial independence is the freedom to render decisions based solely on the requirements of the law
and justice without improper interference from any other entity.
o The three essential conditions for judicial independence are:
 Tenure
 Financial security
 Administrative independence
o However those three conditions been met does not mean independence cannot be compromised.
o The key question is whether the court is free, and reasonably seen to be free to perform its adjudicative
duty without interference.
 It is irrelevant if the act has unfair or illogical rules, the question is whether they interfere with
the courts adjudicative role.
 If a law is within the boundaries of the constitution, the wisdom and value of it are not for the
courts to review.
 It is ok to enact even draconian laws, as long as they do not fundamentally alter or interfere
with the relationship between the courts and the other branches of govt.
 Here there is no such alteration or interference, the courts retain their adjudicative role and
their ability to exercise this role.
 The fact that the Act shifts certain onuses of proofs or limits the compellability of information
that the tobacco manufactures assert does not interfere in appearance or fact with the courts
adjudicative role.
 Judicial independence can take place under unconventional rules of civil procedure and
evidence.
- Issue 2: Does the Act violate the Rule of Law?
o NO
o The rule of law lies at the root of our system of government, it is ackowled by the preamble of CA 1982
and implied in the preamble of CA 1867.
o Three principles of the rule of law (there could be more):
 The law is supreme over officials of the govt and private individuals, so it is preclusive of the
influence of arbitrary power.
 It requires the creation and maintenance of an actual order of positive laws which preserves and
embodies the more general principle of normative order.
 It requires that the relationship between the state and the individual be regulated by law.
o None of this principles speaks directly to the terms of legislation, only that legislation is applied, that it
exist, and that state actions be legally founded.
 o Unwritten constitutional principles such as the rule of law are capable of limiting government actions,
but usually only the executive and the judiciary.
o The legislative is only constrained in the sense that they must comply with legislated requirements in
manner an form (procedures to enact, amend, repeal).
o The rule of law does not imply that laws have to be prospective, general in power, not conferring special
benefits to govt, or ensuring a fair civil trial. To imply that it does would undermine the legitimacy of
judicial review because:
 This requirements are simply broader versions of rights in the charter (e.g. fair trial would be
expanded from crim to civil). The framers intent must be respected if they did not intend to
make those rights so broad. To use the rule of law to expand this would trivialize the
constitution.
 Competing constitutional principles like democracy and constitutionalism uphold the validity of
any law that is in line with the constitution.

Notes
- It would appear that the court decided that some laws can be struck down based on judicial independence but
not in this case.
- It also appear that they said that the rule of law does not provide ground to strike down legislation. However, in
a lecture McLachlin CJ stated that in some circumstances the rule of law could be used to strike down laws.

British Columbia (AG) v Christie (SCC 2007)

- Facts:
o BC imposed a 7% tax of the purchase of legal services mostly to fund legal aid.
o Christie, a lawyer who worked with the poor, challenged the law claiming the effect was to make
impossible for his low-income clients to retain him as counsel.
o Part of his “access to justice” argument was based on the rule of law as described in the Charter
preamble.
- Issue: Does the tax violate the rule of law?
o NO
o To say it does would make access to legal services a right, more specifically the right to be represented
by a lawyer where rights and obligations are at stake before a court or tribunal.
o This right is not mandated by the constitution.
o It would be a broad right covering practically all the cases that come before courts or tribunals.
o The consequence would be a constitutionally mandated legal aid scheme for virtually all legal
proceedings, except where the state could show it is not necessary for access to justice.
o Access to legal service is not within the three principles of the rule of law mentioned in Imperial
Tobacco.
o It is also not a potential additional principle of the rule of law.
o Although access to legal services is fundamentally important in a free and democratic society a review of
the constitution, the jurisprudence and the history of the concept does not support the view that a
general right to counsel is a requirement of the rule of law.
o It is only constitutionally required in the specific context of s.10(b) “on arrest or detention”.

Section 96: Separation of Powers

- Although s.96 literally reads as an appointment power, through judicial interpretation it has become the
authority to preserve the rule of law by:
o Controlling the appointment and remuneration of judges
o Claim that superior courts cannot be eroded by enacting legislation that assigns such functions to non-
court agencies.
- However, it can be argued that the rule of law is not necessarily preserved since:
 o Judicial appointments can be political
o Administrative agencies routinely do court-like work, although the rule of law is preserved through
judicial review of agency decisions.
- Some argue that the preservation of original jurisdiction for superior courts unduly constrains the provinces in
choosing institutional structures for administrating provincial laws. With the counter argument being that
preserving original jurisdiction maintains the separation of powers.

Trial Lawyers Association of British Columbia v. Attorney General of British Columbia (2014 SCC)
- Facts:
o In BC current hearing fees escalate from no fee for the first three days of trial, to $500 for days four to
ten, to $800 for each day over ten.
o Rule 20-5(1) of the Supreme Court Civil Rules provides for an exemption from hearing fees if the court
finds that a person is “impoverished”.
- Issue: Are the hearing fees constitutional?
o NO
o Hearing fees are a valid exercise of s.92 (14) (administration of justice) by the provinces. But they are
unconstitutional under s.96 when they deny people access to justice.
o Neither level of government can enact legislation that removes part of the core or inherent jurisdiction
of the superior courts.
o The role of courts is to resolve disputes and measures that prevent people from coming to the courts to
have those issues resolved are at odds with this basic judicial function. Therefore, hearing fees that deny
people access to the courts infringe the core jurisdiction of the superior courts and impermissibly
impinge on s. 96
o As access to justice is fundamental to the rule of law, it is natural that s. 96 provide some degree of
constitutional protection for access to justice. Although s.96 is its face a power of appointment, it is by
necessary implication more than that and it requires the superior courts to be protected.
o Section 92(14) , read in the context of the Constitution as a whole, does not give the provinces the
power to administer justice in a way that denies the right of Canadians to access courts of superior
jurisdiction. Any attempt to do so will run afoul of the constitutional protection for the superior courts
found in s. 96.
o Hearing fees are not always unconstitutional. But they are when they deprive litigants of access to the
superior courts. That point is reached when the hearing fees in question cause undue hardship to the
litigant who seeks the adjudication of the superior court.
 Although there are exemptions for the truly impoverished, the act still subjects litigants to
undue hardship by causing them to sacrifice reasonable expenses in order to bring a claim.
 As a general rule, hearing fees must be coupled with an exemption that allows judges to waive
the fees for people who cannot, by reason of their financial situation, bring non-frivolous or
non-vexatious litigation to court.
 The exemption here should not be expanded to cover everyone, because the plain meaning of
impoverished does not include those form whom the fee would be an undue hardship but are
not by objective standards “impoverished”.
 If they were only charging litigants who could afford it, it would be ok.
o S.96 is enough to decide this case, but a similar outcome could be reached based on the unwritten
principle of the rule of law.
 It would do so by preventing judges from listening to cases and further developing the law with
precedent.
 Christie case can be differentiated because in that case the tax did not have the effect of barring
litigants from accessing courts. Some reasonable limits are constitutional, but not where it
would bar litigants.
 - Cromwell (Concurring)
o The hearing fees are not authorized under the regulation-making authority given by the Court Rules Act
therefore they are ultra vires. No need to decide on the constitutional issue.
o There is a common law right of access to justice preserved by the Court Rules Act and the regulations are
inconsistent with the Act.
- Rothstein (Dissent)
o The majority focuses only on the POV of the litigants without considering how to finance those services.
o The rule of law is better preserved by allowing courts to be properly funded, including hearing fees.
o The decision can also be entering into the arena of resource allocation which should be a legislative
decision.
o Should only invoke unwritten principles where there are gaps in the written text. Here there are no
gaps, so there is no need to go into unwritten principles.
o It would be an odd result if s.96 would be made a more imminent right than those in the Charter
because there is no opportunity for the govt to justify themselves under s.1 as with the Charter.
o “So long as the courts maintain their character as judicial bodies and exercise the core functions of
courts, the demands of the Constitution are satisfied.”
o The rule of law has to be analyzed in balance with the principle of democracy, which would favour
upholding legislation by democratically elected officials.

Second Semester

Canada’s Indigenous Constitution

2 factors

- Homogenous treatment of diverse indigenous groups from the European.

o Official nomenclature in the constitution is “Aboriginal Peoples of Canada”. This includes First Nations,
Inuit and Metis.
 There are 650 first nations communities which can be group into 11 larger groups of shared
culture and languages.
 Inuit about 50-60k and have made several land treaties over the last 20 year.
 1/5th of the land in Canada has been subject to treaties in the last 20 years, this means that
treaties are very much a recent process, not just a historical one.
o After arrival of the European it is estimates that 90% of the aboriginal population died from disease.
 This gave the impression of an empty land, which is liked with the doctrine of terra nullius.
 Only now is the aboriginal population returning to the levels of 300 years ago.
- Possible at a general level to make distinctions between

Intersocietal Law
- Bridge between two legal cultures.
- Canadian Constitutional law reconciles aboriginal laws and imperial laws.
o The result in this interaction can be a sui generis type of law, which means that the common law is not
necessarily the final word, nor are the aboriginal laws the final word.
- Meaning of Aboriginal Law and Indigenous Law:
o Aboriginal Law: Narrow meaning would be the application of Government law to aboriginal community.
o Indigenous Law: Refers to the laws internal to the aboriginal groups.

Sources of Indigenous Law

- Sacred Law
o Similar to the elevated place given to the US constitution.
o Some aboriginal communities give a similar status to their treaties.
 - Natural
o Some of the legal and moral concepts can be influenced by nature and its relationship with aboriginal
people.
- Deliberative
o The sacred and natural elements are not self-authoritative.
o They are brought to and discussed by the human community.
o This ensures that aboriginal culture and its legal traditions are a living concept, which is not frozen in
time.
- Positivistic
o Declarative in the sense that they can be stated and written.
- Customary
o Rules and customs are implicit in the culture, enforced through social pressure.

Challenges
- The diversity of the groups makes people wonder whether it is possible or valuable to develop a single cohesive
framework.
o In a sense this has been achieved in the US where aboriginal sovereignty is more developed.

Constitutional Relations Post 1867

Legal Exclusion (1867-1973)
- CA 1867: States the powers of the federal government extends to aboriginal groups.
- Indian Act 1876:
o It has a strong assimilation purpose which look to eradicate Aboriginal culture.
o It was set up to have an end date when assimilation was reached.
o Under the Indian Act the authority of First Nations to govern themselves are extremely specific an
narrow.
o There is no inherent authority for First Nations (unlike the US). There is only very limited delegated
authority.
- Limited Social Participation
o BC and the Federal govt didn’t give aboriginal people the right to vote. Federally they only received this
right in the 1960’s.
o Religious freedoms, particularly practices were outlawed.
o Economic pursuits were limited. For example in fishing Aboriginal people were given attached licences in
BC, which meant that the price they could receive was pre-determined. As a result they would make
many times less money than European fishers, which then had the capital to develop the industry.
- Residential Schools
o For 175 year there were residential schools that would take children away.
o There was limited budget and attention given to the schools which in many cases led to malnutrition,
sexual abuse, among other issue.
- Limited access to courts and protest
o It was made illegal for aboriginal people to hire lawyers.
o This led to many cases of fraud and led to more land taken away from aboriginal people.
o Protesters were stripped away from their native status, which led to reserve land being under populated
and at times taken away.
- Inuit Relocations
o Inuit people were taken to less productive communities.
- 1951 Indian Act Amend
o D
- Over-Incarceration and poverty
 o Finishing grade 12 in a reserve is sometimes equivalent to a grade 5 education. This has led to a lack of
education and people leaving the reserves to live in cities in poverty.
o The result has been a massive over representation of aboriginal peoples in jail.

Common Law Foundations of Constitutional Recognition

- Royal Proclamation (1763) written under the premise of intersocietal (quasi-international) relations. The Crown
seen as a removed authority that would be an arbitrator of sorts between the aboriginals and the settlers.
- Legal sources include:
o Traditional laws and customs, French and British colonial practice executive proclamations, British
legislative action, treaties, Privy Council rulings and decisions of the senior appellate courts of the US
and Australia, sections of the CA 1867 and 1982.
- Most of the constitutional issues involving Aboriginal issues occur in relation to rights to land.
o Before 1982, apart from reserves established in treaties and regulated by the Indian Act, most land
rights were conceptualized as “Aboriginal Title”
 Aboriginal Title was initially vested to aboriginal peoples through the Royal Proclamation which
declared that lands possessed by Indians throughout British territories were reserved for their
exclusive use unless previously ceded to the Crown.
 Until Calder v BC (AG) (1973) the Royal Proclamation was seen by courts as the only source of
Aboriginal rights.
- In St Catherine’s Milling & Lumber v The Queen (1888) the PC held that Aboriginal title was only a burden on the
underlying Crown title, which could be extinguished by the exercise of sovereignty by the Crown.
- An exception was Connolly v Woolrich (1867) where the Quebec Supreme Court state that the Aboriginal rights
do not emanate from the Royal Declaration but from aboriginal laws that predate colonization.

Connolly v Woolrich (1867 Que. SC)

Facts

- William Connolly married a Cree woman named Suzanne in a Cree ceremony and had children with her.
- He later decided to treat the marriage as invalid and married Woolrich in a Catholic ceremony.
- When he died his will left all his property to Woolrich and her children.
- Suzanne’s children sued.
- Case made was finally settled before reaching the PC.

Issue: Was the Cree marriage a valid marriage?

- YES: And therefore the children are entitled to part of the inheritance.
- The court decided that aboriginal laws were never abolished, that “they were left in full force, and were not
modified in the slightest degree, in regard to the civil rights of the natives”.
- Aboriginal rights were not created by the common law, they predate European contact.

Notes:

- The principles expressed in this case can be considered as the core principles in modern Aboriginal law. Although
the case itself received little attention.
- The principles, particularly the recognition of Aboriginal title as separate and distinct from the Royal
Proclamation would not be recognized by Canadian courts again until 1973 in Calder.
o Calder (1973) was case where the Nisga’a were looking for a declaration of aboriginal title based on
prior occupation, the Royal Declaration, and that the title had not been extinguished.
o The SCC decided that aboriginal title existed outside of treaties.
o The case however was of inconclusive result due to evidentiary issues. But the recognition of Aboriginal
Title set the framework for the negotiation of Aboriginal Treaties.
o The decision was also a call of action for all parties to negotiate.
 - The Guerin case builds on Calder and provides an overview of Aboriginal rights to reserve land and Aboriginal
title.

Guerin v The Queen (1984 SCC)

Facts:

- The Musqueam Indian Band is suing to recover damages from the fed with respect to the leasing of reserve land
to a golf club.
- The trial court declared that the Crown was in breach of trust and found damages of $10M, this decision was
reversed by the FCA.
- The Indian Act stipulates in s.18(1) that reserves shall be held by Her Majesty for the use of the respective Indian
bands for which they were set apart. They are not to be alienated until they have been surrendered to the
Crown by the band. That surrender may be absolute or qualified. It must also be assented by a majority of the
electors of the band, and accepted by the Governor in Council.
- The Musquam Indian Band claims the fed breached its trust obligation by leasing 162 acres of reserve la to a golf
club. They claim that the terms and conditions of the lease were different than those disclosed to them when
they voted. They also claim the Crown failed to exercise care and management as a trustee.
o The Musqueam were denied legal representation. The deal changed after they approved it, it was
renegotiated so that they only received 10% of the fair price for the land lease.

Issue: Was there a breach of trust?

- YES:
- Fiduciary Relationship (what makes this case a constitutional and not a contracts case):
o The Indian Act imposes an equitable obligation on the Crown to deal with the land for the benefit of the
Indians.
o This is not a trust in the private law sense, it is a fiduciary duty. However, if there is a breach then the
crown will be liable to the same extent as a private law trustee would.
o Its relevance is based on the requirement of surrender to the Crown before Indian land can be
alienated. This requirement comes from the Royal Proclamation and was justified in the idea that
Aboriginals were subject to fraud and abuse in selling their land.
 Cochran: Can also be seen as a recognition of the nation to nation relationship which makes
aboriginal title sui generis and unlike title in fee simple.
- The existence of Indian Title:
o Although this case is about a reserve (through treaty) not a title claim, the interest is the same in both
cases.
o Calder went beyond St. Catherine’s in recognizing that the Proclamation is not the sole source of Indian
title.
o Calder considered the American case of Johnson and Graham’s Lesee v M’Intosh (1823) in that case the
Royal proclamation was acknowledged as one basis for recognition of Aboriginal title. However they also
considered that the rights of Indians in their lands predated the arrival of the Europeans. Guerin
interprets Calder as recognizing that aboriginal title comes from the prior occupation. Alternatively they
rights can also come from the indigenous legal rules (as in Connolly which is not mentioned in this case).
 Johnson stated that at the time of “discovery” the rights of Indians were not entirely
disregarded but only impaired to a considerable extent. They could remain rightful occupants of
the soil they occupied, but they did not have complete sovereignty. For example the right to
dispose of their land at their own will, to whoever they pleased was denied. Discovery gave the
sovereign country occupying the land the sole right to acquire the land from the Indians.
- The Nature of Indian Title:
 o In St. Catherine’s the PC said that Indians had a “personal and usufructuary right” in the lands which
they had traditionally occupied. The Crown had paramount estate underlying the title which could
become a plenum dominium whenever the title was surrendered or otherwise extinguished.
 The CA 1867 affirms this idea of a usufructuary interest by considering Indian interest “an
interest other than that of the province”. The Provinces’ ability to profit from the land is subject
to this interest.
o There is no conflict between cases that describe Indian title as a beneficial interest and those that
describe as a personal usufructuary right.
o However, both descriptions lack some accuracy. The correct characterization is that of a sui generis
interest.
 It is personal in the sense that it cannot be transferred to a grantee. Meaning it is inalienable
with the exception of surrender to the Crown.
 It also gives rise, upon surrender, to a fiduciary duty on the part of the Crown to deal with the
land to the benefit of the surrendering Indians.
- The Crown’s Fiduciary Obligation:
o Its relevance is based on the requirement of surrender to the Crown before Indian land can be
alienated. This requirement comes from the Royal Proclamation and was justified in the idea that
Aboriginals were subject to fraud and abuse in selling their land.
o The requirement also has the effect of granting the Crown discretion to decide by itself where the
Indian’s best interest really lie.
o The requirement does not oust the courts authority to regulate the relationship, but it guides it by
creating a fiduciary relationship between the Crown and the Indians. This means that the court should
consider that the Indians are at the Crown’s discretion.
o The fiduciary relationship is narrowed, though not eliminated, by the Indian Act.
- Breach of the Fiduciary Obligation:
o Although the surrender did not make reference to the oral terms that were not respected in the lease,
the Crown is not empowered to ignore the oral terms which were considered for the surrender.
o Because the Crown’s agents induced the band to surrender the land on certain terms (including the oral
terms) it would be unconscionable to allow them to ignore those terms.
o When the promised lease was impossible to obtain the Crown did not have the authority to enter into a
less advantageous lease. They had to go back to the band and consult with them on how to proceed.
o The unconscionability is the key reason why the Crown breached its fiduciary duty and equity should
intervene.
o The principles applied are similar to promissory or equitable estoppel.

The Constitutional Entrenchment of Aboriginal Rights

- Aboriginal Rights are entrenched in s.35(1) of the CA 1982 which states: “The existing aboriginal and treaty
rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
o However it wasn’t clear what was meant by “existing aboriginal rights”.
o Also s. 35(1) is not subject to s. 1, which takes away the proportionality analysis from cases under s. 35.
o The SCC analyzed the nature and scope of those rights in the following cases.
- S.25 states that the Charter is not to be construed as abrogating or derogating any aboriginal rights previously
obtained.
- Hogg’s issues in aboriginal rights:
o Democracy
o Parliamentary supremacy
o Liberal notions of equality (equality as between individuals as opposed to groups and equity)
o Potential constitutional amendment.
Summary to s. 35(1) analysis
1. Is there an existing Aboriginal Right?
o Integral to a distinctive culture (Van der Peet)
o Not extinguished (Sparrow)
2. Has the right been infringed? (Sparrow)
3. If there is an infringement, is that infringement justified? (Sparrow, Gladstone)

R v Sparrow (1990 SCC)

It gives an approach to s. 35, saying what it means to be “justified and affirmed, but does not deal with how to identify
what is an ab right.

Facts:

- Sparrow, a member of the Musqueam Indian Band, was charged under s.61(1) of the Fisheries Act with fishing
with a drift net longer than permitted in the terms of the Band’s Indian food fishing licence.
- Sparrow does not deny that he used a longer net, but he claims that the net length restriction is inconsistent
with s. 35(1) of the CA 1982.
- Sparrow was convicted in the 1st two levels as they decided that courts could only enforce his rights through
treaty, not Royal Proclamation.

Issue: Whether Parliament’s power to regulate fishing is now limited by s. 35(1) of the CA 1982, more specifically
whether the net length restriction in the licence is inconsistent with that provision.

- INCONCLUSIVE: Not enough evidence on the facts to decide on the issue, send back to trial.
- What is the meaning of “existing” in the phrase “existing aboriginal rights” under s. 35(1)?
o Only includes those rights that were in effect in 1982. So it does not revive rights extinguished before
that.
o However the definition is not limited to the specific manner in which the rights were regulated before
1982. That would lead to a patchwork of regulations, since the regulations too would be
constitutionalized.
 Therefore “existing” means unextinguished, rather than exercisable in 1982.
o Therefore “existing aboriginal rights” must be interpreted flexibly to permit evolution over time. This
is because they are not frozen to how they were practiced in a particular time.
o To extinguish a right the Crown must do it in a clear and plain way.
- The aboriginal right at stake in this appeal:
o The Musqueam Band’s aboriginal right to fish is at issue. The Crown argues that it has been extinguished
by regulations under the Fisheries Act.
 The Crown argues that the extinguishment need not be express, but may take place where
sovereign authority is exercised inconsistently with the continued enjoyment of the aboriginal
right.
 They argue that consent to its extinguishment before 1982 was not required and that
the right to fish was extinguished before that.
 This approach is rejected: “the respondent’s argument confuses regulation with extinguishment.
That the right is controlled in great detail by the regulations does not mean that the right is
thereby extinguished.
o The test of extinguishment is that “the Sovereign’s intentions must be clear and plain if it is to
extinguish an aboriginal right”.
 That test is not met here, nothing in the Fisheries Act or its regulations show a clear intention to
extinguish the aboriginal right to fish.
o The scope of the right:
  The Musqueam have fished salmon for centuries. Salmon is integral to their subsistence and
part of their ceremonial and social occasions.
 The BCCA called it a “right to fish for food purposes” but this is not limited to mere subsistence.
 This could presumably be a right to fish for commercial purposes since it can be argued that the
Musqueam if undisturbed would have developed commercial fisheries in present times.
 Just as historical govt regulation cannot without clear intention extinguish a right, it cannot
delineate the scope of the right. So just because commercial fishing was not allowed through
legislation does not mean it is not a right.
 However commercial fishing was not raised in the courts below so this case will only consider
the right to fish for food, social and ceremonial purposes.
o What is the impact of s. 35(1) on the right to fish?
 The Musqueam argue that the effect of s.35(1) is to deny Parliament’s power to restrictively
regulate aboriginal fishing rights.
 They argue that the regulation should be limited to ensuring it is non-dangerous fishing
and to some conservation concerns. The onus to justify restrictive regulations should lie
with the govt.
 The purpose of 35(1) is remedial, to provide a solid constitutional framework under which
negotiations can take place. It is not just codifying the case law on aboriginal rights by 1982, it is
about achieving just settlement for aboriginal peoples.
 S.35(1) should then be interpreted with a purposeful interpretation. The interpretation
should also consider the history and tradition of aboriginal people.
 The interpretation should consider that the relationship between the govt and
aboriginal peoples is fiduciary, trust-like (Guerin).
 The words “recognition and affirmation” incorporate the fiduciary relationship to s.
35(1) as well as restraint in the exercise of sovereign power.
 However not every law limiting aboriginal rights will be automatically of no force under
s.52, the laws can be valid if they meet the test for justifying an interference.
 The justificatory scheme is a compromise between constitutionalizing and freezing-in-time all
1982 regulations, and a characterization that guarantees aboriginal rights in their original form
unrestricted by subsequent regulation.
 Regulations limiting aboriginal rights must be enacted according to a valid objective.
 The burden to justify the regulation lies with the govt.
 Context is important in s.35(1) and therefore the standard to be met should be
determined a case-by-case basis.
- Aboriginal rights are not absolute, although the state has to justify any infringement.
 The justificatory test for the Regulation of Fisheries (case at hand)
1. Is it a prima facie infringement of s. 35(1)? (onus on the aboriginal group)
o The test for prima facie interference and justification of that interference is the following
“Whether the legislation has the effect of interfering with an aboriginal right”.
 Must start by referencing the characteristics of the right at stake.
 Fishing as a sui generis right. Not a traditional property right, but a collective
right important to the culture.
 Then the following questions:
1. Is the limitation unreasonable?
2. Does it impose undue hardship?
3. Does it deny right holders their preferred means of exercising that right?
2. For justification there are 2 questions (onus on the crown):
1. Is there a valid legislative objective?
  Yes: In this case it can be conservation (which is valid) or protecting the
population/aboriginal people of the consequences of overfishing.
2. Is the government employing means which are consistent with their fiduciary duty to the
aboriginal nation at issue? Consider the following questions (vary by case)
 Was the infringement as minimal as possible?
 Were their claims given priority over other groups?
 Meaning that if there are conservation limitations and the quotas on fishing are
reduced, the Musqueam would have priority to fulfill their right to fish for food
before other groups (e.g. sport fishermen) can fish.
 Was the effected aboriginal group consulted?
 If there was expropriation, was there fair compensation?
- Conclusion:
o In this case there is not enough evidence to decide whether the regulation is justifiable. Whether there
is a legitimate conservation concern is a question of fact.
o Therefore ordered re-trial under the framework provided.

R v Van der Peet (1996 SCC)

Facts:

- Dorothy Van der Peet charged under s.61(1) of the Fisheries Act with the offence of selling fish caught under the
authority of an Indian food fish licence, contrary to s.27(5) of the BC Fishery General Regulations.
o The regulation read: “No person shall sell, barter or offer to sell or barter any fish caught under the
authority of an Indian food fish licence”.
- D sold 10 salmon, the facts are not contested. D instead claims that in selling the fish she was exercising an
existing aboriginal right to sell fish. She claims that s. 27(5) infringe her existing right to sell fish and violate s.
35(1) of the Charter.

Issue: What is the test for determining an "aboriginal right" under 35 of the Charter?

- NO:
- The purpose of s. 35(1) is to reconcile the prior occupation of Aboriginal people (incl.
practices/traditions/customs) with Crown sovereignty. Aboriginal rights must be defined in light of this
purpose.
- s. 35(1) recognizes and affirms aboriginal rights but it must not be forgotten that the rights must be aboriginal.
o Aboriginal rights are different than other rights in the Charter and cannot be defined on the
philosophical precepts of the liberal enlightenment.
o While they are equal in importance to other rights, they are different because they are only given to
aboriginal people. They arise from the fact that aboriginal people are aboriginal, so they must be
inherent in the very meaning of aboriginality.
o Courts must define the rights in s. 35(1) in a way that captures both the “rights” and the “aboriginal” in
aboriginal.
 The way to do so is through a purposive approach that identifies the interests s 35(1) was
intended to protect while ensuring that the provision is not viewed as static and only relevant to
current circumstances.
- General Principles Applicable to legal disputes between aboriginals and the Crown:
o Before starting with the purposive approach, the general principles will be identified.
o The interpretation of s. 35(1) should be generous and liberal in favour of aboriginal people (Sparrow).
 Consider fiduciary obligation, which makes it so that if there is any doubt or ambiguity with
regards to what falls within the scope of s. 35(1) it should be resolve in favour of aboriginals.
- Purposive Analysis of s. 35(1):
o The goal is to explain the rationale and foundation of s. 35(1), particularly of the “recognition and
affirmation of the special rights of aboriginal peoples”.
o It must be remembered that s. 35(1) did not create the doctrine of aboriginal rights, they existed and
were recognized under the common law. This is relevant because it points to the existence of aboriginal
rights prior to constitutionalization.
o The doctrine of aboriginal rights exists and is recognized because of the simple fact that when
Europeans arrive, aboriginal peoples were already here. That separates them from all other minority
groups in Canada and fives them special legal and constitutional status.
o What s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived
on the land is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights
must be defined in light of this purpose.
o Aboriginal rights are based in traditional laws and customs, the same way aboriginal title has been found
to be in Australia (Mabo).
o Aboriginal rights can be understood as neither English nor aboriginal in origin, but a form of intersocietal
law that evolved from long standing practices linking the various communities (Prof. Slattery).
- The test for Identifying Aboriginal Rights in s. 35(1)> “Integral to a distinctive culture test”:
o Test must aim at identifying the practices, traditions and customs central to the aboriginal societies prior
to the arrival of the Europeans.
o TEST: In order to be an aboriginal rights an activity must be an element of a practice, custom or tradition
integral to the distinctive culture of the aboriginal group claiming the right. Factors include:
1. Courts must take into account the perspective of aboriginal peoples themselves.
 However that perspective must be framed in terms cognizable to the Canadian legal
and constitutional structure. This is because the rights exist within the general legal
system of Canada.
2. Courts must identify precisely the nature of the claim being made in determining whether an
aboriginal claimant has demonstrated the existence of an aboriginal right.
 Nature of claim must be delineated in terms of the particular practice, custom or
tradition under which it is claim, the significance of the practice is a fact, whether it is
integral to the culture.
 Must consider the nature of the action which the claim states was done in pursuant to
an aboriginal right. (in this case selling fish). However this should be done at a general,
not specific level. Considering that the action might be a modern form of a traditional
practice.
3. In order to be integral, a practice/custom/tradition must be of central significance to the society
in question.
 Requires more than showing that a practice took place or was an aspect of the society.
 It should be central and significant, one of those things that made the culture distinct;
that “truly made the society what it was”.
 Does not include aspects that are true of every human society nor those that ore only
incidental or occasional to that society.
 The significance of the practice/custom/tradition does not identify what the practice is,
but it is a key aspect to determine whether it is an integral part of the culture of the
group.
 A practical approach is to ask whether without this practice the culture would be
fundamentally altered.
4. The practice/custom/tradition must have continuity with those that existed prior to contact:
 This is because it is the fact the aboriginals where here before the European that is the
basis for the special rights protected by 35(1).
  The key period is before the arrival of the Europeans, not the period between arrival
and assertion of sovereignty. > Because it is the fact that distinctive aboriginal societies
lived on the land prior to the arrival of Europeans that underlies the aboriginal rights
protected by s. 35(1).
 This does not mean that the aboriginal group must produce conclusive evidence from
pre-contact time. The evidence simply need to be directed at demonstrating which
aspects of the aboriginal community and society have their origins pre-contact. If they
are rooted in the pre-contact societies then the test is met.
 Continuity is the means by which the a “frozen rights” approach to s.35(1) is avoided.
o The evolution of practices/customs/traditions into modern forms will not be an
obstacle to proving a right has continued.
o There is no requirement of showing an “unbroken chain of continuity”. If there
is an interruption in the practice it will not preclude the establishment of the
right.
 Metis people would prima facie not meet the “pre contact” requirement, but it does not
mean they cannot assert aboriginal rights. When the case arises a framework will be
defined for them.
5. Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in
adjudicating aboriginal claims.
 Meaning that the usual evidentiary standard do not apply.
6. Claims to aboriginal rights must be adjudicated on a specific rather than general basis
 The fact that one group has a right does not mean that another group will have it since
each group is distinct.
7. For a practice/custom/tradition to constitute an aboriginal right it must be of independent
significance to the aboriginal culture in which it exists.
 Meaning it cannot exist simply as an incident to another practice. Incidental practices
cannot qualify as aboriginal rights through piggybacking on integral practices.
8. The integral to a distinctive culture test requires that practice/custom/tradition be distinctive,
not that it be distinct.
 Meaning it does not have to be unique, it has to be a distinguishing characteristic about
the culture apart from other cultures.
9. The influence of European culture will only be relevant to the enquiry if it is demonstrated that
the practice is only integral because of that influence.
 Only if the practice/custom/tradition can only be said to exist because of the influence
of European culture then it will not meet the standard. Not enough if it adapted due to
the arrival of the Europeans as long as it was integral pre-contact.
10. Courts must take into account both the relationship of aboriginal peoples to the land and the
distinctive societies and cultures of aboriginal peoples.
 Aboriginal rights and title are related concepts. However they are also different.
Aboriginal rights arise not only from prior occupation of the land, but from the prior
social organization and distinctive cultures of aboriginal peoples on that land.
 Courts must look at the relationship of an aboriginal claimant to the land and at the
practices/customs/traditions arising from their distinctive culture and society.
o Application of the Integral to a distinctive culture case to the case a hand:
 Identify the precise nature of the appellant’s claim to have been exercising a right:
 The most accurate characterization is a claim to “an aboriginal right to exchange fish for
money or for other goods”.
 On the facts it cannot be said to be truly “commercial”. It was on a limited scale.
 Integral to a distinctive culture test (based on trial judge’s findings of fact):
  Prior to contact, exchanges of fish were only incidental to fishing for food purposes.
 There was no regularized trading system prior to contact.
 The trade engaged in between the Sto:lo and the Hudson’s Bay company while of
significance, was qualitatively different from what it was prior to contact.
 The Sto:lo exploitation of the fishery was not specialized and suggested that the
exchange of fish was not a central part of the culture.
 Conclusion: Test not met the appellant failed to demonstrate that the exchange of fish for
money or other goods was integral to the distinctive culture prior to contact.
- L’Hereux dissent:
o The approach to aboriginal rights should be to describe them at a fairly high level of abstraction, rather
than focusing on the particular Aboriginal custom/practice/tradition.
o The majority’s approach is unduly restrictive and misconstrues the meaning of “distinctive culture” from
Sparrow.
 The test should be for the custom/practice/tradition to be sufficiently connected to the self-
identity and self-preservation of the aboriginal society.
 What constitutes a custom/practice/tradition should be examined through the eyes of
aboriginal people, not through the non-native majority or the lens of existing regulations.
 The period of time necessary for an activity to be recognized as a right should be a flexible
“dynamic-right” approach. It should have been an integral part of a distinctive aboriginal culture
for a substantial continuous period of time.
- McLachlin dissent:
o Emphasized the distinction between an aboriginal right (to be broadly conceived and constant over
time) and the exercise of that right (which may vary over time and take modern form).
o Although she considered the sale to be undeniably commercial, it was justified as a right to continue a
historic use of the resource.
o Rejected the “integral to distinctive culture test” for an empirical, historial approach to defining rights.
o The Sto:lo have a right to continue to use the resource, limited by the traditional sustenance needs in
their modern form.
- Two companion cases:
o NTC Smokehouse: whether the Sheshaht and Opetchsaht people possessed a right to exchange fish for
money. The majority found it was not an integral part of the distinctive culture, it was merely incidental.
o Gladstone: Application of the justification test to Sparrow in laws that interfered with Aboriginal
commercial fishing rights.

R v Gladstone (1996 SCC)

Facts:

- Gladstone a member of the Heilstuk Band was charged with attempting to sell herring spawn on kelp without a
proper licence.
- His defence was that he was exercising a pre-existing right to fish for commercial purposes.
- His conviction was upheld by the BCSC and the BCCA.

Issue: Is the limitation on commercial fishing justified by the Sparrow justification test?

- The circumstances are different than in Sparrow so the justification test must be adapted to this case:
- Difference #1: The right claimed here is to sell herring spawn on kelp commercially, whereas in Sparrow it was
the right to fish for food, social and ceremonial purposes. Meaning there is no inherent limitation to the right
claimed here, where as in Sparrow at some point the group would have enough fish.
o This means that unlike in Sparrow where in years of limited fish the Aboriginal people’s needs could be
given priority, here to give them priority would mean to that the aboriginal right to sell herring spawn on
kelp would be an exclusive one, since it would never be fully satisfied (except by market forces).
 o Therefore where there is no internal limitation to the aboriginal right, the doctrine of priority does not
require the aboriginal group to be given an exclusive right to fish on a commercial basis. Instead it
requires the govt to demonstrate that in allocation the resource it has taken account of the existence of
the right and allocated the resource in manner respectful of that right and the fact that right gives
priority.
 The priority would then be something less than exclusivity, but decided on a case-by-case basis.
o general guidance for the test of whether the govt has granted priority can be found in Sparrow
o In this case it includes: consultation, compensation, whether the government has accommodate the
exercise of the right (e.g. though reduced fishing licence fees), whether the govt objectives in enacting a
regulatory scheme took into account the priority of the aboriginal right holders, the extent of
participation relative to the population percentage, and the criteria taken into account by the govt to
allocate commercial licences.
- Difference #2: Unlike in Sparrow where the limitations were made under the valid objective of conservation,
here there is no evidence of the objectives for the regulation.
o However some observations will be made about the nature of the objectives that the govt can pursue
under the 1st branch of the Sparrow test.
o Because aboriginals live in a broader society some limitations on their rights are justifiable and in fact
necessary to achieve true reconciliation.
o Conservation is a valid goal. Also in this context (no inherent limit to the right) objectives in the
distribution after conservation goals have been met, such as the pursuit of economic/regional fairness,
and the recognition of the historical reliance and participation in the fishery by non-aboriginal groups
can satisfy this standard.
- Because the question of whether the scheme for allocating the 20% of the herring stock was justified or not was
not addressed at trial, there is not enough evidence for this court to decide on the justification issue.
o Therefore a new trial on the question of justification is ordered to remedy this deficiency.

Aboriginal Title
- A general right over land much broader than aboriginal rights which only grant specific rights.
- Still a sui generis rights, but somewhat comparable to a communal fee simple.

Delgamuukw (Constitutional)
- The Court said that aboriginal title has its origin with reference to the rights of aboriginal people prior to the
assertion of Crown Sovereignty (as opposed to before contact, which applies in ab rights).
o The logic behind this is that at the time of assertion of Crown sovereignty all land became vested on the
Crown, which acquired allodial title.
- The Court said that title is a right of ownership to the land, as opposed to a bundle of rights.
- Also described aboriginal title as a sort of intersocietal law which has to be understood in relation to the
common law and aboriginal law.
o Aboriginal title also described as sui generis, different from all other common law titles. Prof Hogg gives
the following reasons:
 Inalienability except to the Crown (originally meant to protect aboriginal people from abusive
settlers).
 Collective ownership which also takes into account future generations (leads to inherent limit).
 It derives from pre-sovereignty occupation, not Crown grant.
 It is constitutionally protected.
- The facts of this case did not allow the Court to decide their issue, but they set the framework for future claims,
the first of which is Tsilhqot’in.
Delgamuukw (Property)
1) First time S.C.C. dealt in depth with Aboriginal title. S.C.C. ordered a new trial (since, for example, oral histories were
not adequately considered), but gave lengthy ruling to guide new trial judge.
2) Facts: Gitksan and Wet’suwet’en claim 58,000 km2 in BC. Trial judge did not give independent weight to natives’ oral
history of their attachment to the land (since it includes subjective views and myth) and concluded plaintiffs had not
proved their historical occupation, hence dismissing claim.
3) S.C.C. considered overriding objective of s.35 to be the reconciliation of prior occupancy by aboriginals with British
Crown sovereignty – so throughout decision reference to both aboriginal law/history of particular group (since no
universal aboriginal law) and common law, and not exclusively one or the other approach
4) Underlying title to all land in Canada is in the (provincial) Crown (federal Crown in territories), established in
conclusively 1846. Aboriginal title exists on top of this as a burden / encumbrance (and this is why it couldn’t have
existed until 1846, time of sovereignty, rather than at first contact)
5) Content of aboriginal title:
a) Sui generis i.e. in and of itself, not derived from some other doctrine / principle, and a mix of aboriginal and
common law (reflecting overriding objective of reconciliation)
b) Inalienability (i.e. can only sell/surrender to federal Crown, although ownership then reverts to provincial
Crown)
c) Communal ownership, with decisions about it made communally (unlike individual or multiple-individual
ownership in common law)
d) It is a right in land including exclusive use and occupation, and hence is more than just the right to engage in
certain activities. “It confers the right to use land for a variety of activities, not all of which need be aspects of
practices, customs and traditions which are integral to the distinctive culture of the aboriginal band”. Thus
present day needs can be met. E.g. current uses on reserve land go beyond traditional uses, as the Indian Oil and
Gas Act makes clear
e) Inherent limits: however, these activities are limited to ones that are not “irreconcilable with the nature of the
attachment to the land”, which will differ from claim to claim. Title comes from previous community occupancy
and use of land, which forms part of distinctive culture, which should be protected for future aboriginal people.
So cannot strip mine lands traditionally used for hunting or ceremonies for example, or pave them over (of
course lands can be surrendered to Crown and then so used). Thus no equitable waste (legal waste is when
current holder e.g. life tenant goes beyond just taking income and destroys future interest for remainderman,
and equitable waste is similar waste but destroys interest for someone else)
6) S.35 protected rights fall along a spectrum (court rejected Crown argument that the only rights protected were title,
and instead preferred notion that title is just one example of protected rights):
a) One extreme free-standing right: practices, customs, traditions integral to distinctive culture, but not sufficient
to support title claim
b) In middle site-specific right: such activities that by necessity take place on land, perhaps at specific site, but still
not sufficient to support title claim e.g. nomadic people who have seasonal grounds, but not exclusive
occupation
c) At other extreme title: aboriginal title i.e. right to the land itself, when land was of central significance to their
distinctive culture, activity sufficient to constitute exclusive occupation
7) Proof of aboriginal title:
a) The time for identification of aboriginal title is when British Crown asserted sovereignty over the land i.e. at
latest 1846, since prior to that no underlying Crown title on which aboriginal burden could lie, unlike with
aboriginal rights when appropriate time is first contact, since afterwards practices sometimes changed.
b) Evidence: SCC said that such oral histories must be considered because these people did not keep written
records historically and so it would now be virtually impossible to prove land claims if follow usual rules of
evidence i.e. exception to usual rule of hearsay (can’t usually give evidence on what someone else has told you
but rather only on what you have witnessed yourself), again recognizing reconciliation of prior occupancy with
sovereignty
c) Proof of occupation: can use both common law which recognizes actual physical occupation, and aboriginal law
of particular group might have had some form of land tenure system (allocating land to various people) or land
use (showing some pattern of land use). So as proof can use: physical dwellings, cultivation, enclosure of fields,
regular use for hunting/fishing/exploiting resources,
 d) Continuity: such prior occupation can be next to impossible to prove, so present occupation can be used as
proof of prior occupation, so long as there has been:
i) A substantial maintenance of connection to land,
ii) Even if nature of occupation has changed (but if changed so far as to go beyond inherent limits then cannot
prove continuity), and
iii) Making allowances for periods of disruptions (by European settlers for example)
e) Overall test: land must have been of central significance to the groups culture. This means more than incidental
– must have been either substantial connection or sufficiently important.
f) For title, at sovereignty occupation must have been exclusive since aboriginal title today means right to exclusive
use and occupation (for rights, land must have been an integral part of the distinctive culture of the aboriginal
claimants). Proof includes (with equal weight) both common law notion of actual occupancy, and also aboriginal
aspects of particular group, such as exclusive control, requiring permission for others to use the land, or by
agreement / treaty allowed others onto land. 2 or maybe 3 groups could prove group title by showing they
shared exclusivity. This concept has not being expanded since. If cannot prove exclusivity, multiple groups can
still gain shared site-specific aboriginal rights.
8) Aboriginal rights may be infringed by both federal and provincial governments, so long as they satisfy test of
justification:
a) Infringements must come from a legislative objective that is compelling and substantial, recognizing that
aboriginals are now part of a broader society and attempt at reconciliation of prior occupation with Crown
sovereignty
b) Must be consistent with fiduciary obligation of Crown to aboriginal peoples to put their interests first (e.g. with
fishing, after conservation measures covered, aboriginal fishing for food should have priority, but aboriginal
commercial fishing need not have priority over fishing by non-aboriginals)
c) Fiduciary duty requires at least consultation, if not full consent / involvement in management by aboriginals on
land they have title to depending on importance of right, and fair compensation will usually be required.
d) Infringement must infringe as little as possible
e) Allowable infringements to title may include development of agriculture, forestry, mining, general economic
development, protection of environment or endangered species (unclear if this only applies to title, may also
apply to rights with no internal limits)
9) Aboriginal rights must have existed in 1982 to be protected by s.35. Because of S.91(24) only the federal
government had the power (prior-1982) to extinguish aboriginal title, but they must have done so with a “clear and
plain” intent. Thus BC did not have the power of extinguishment after 1871.
10) After ordering new trial, Lamer C.J. recommended negotiations, and ended “Let us face it, we are all here to stay”.

Tsilhqot'in Nation v British Columbia (2014 SCC)

- The nature of Aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is
used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the
group nature of the interest and the enjoyment of the land by future generations.
- Legitimacy or justification: Trying to reconcile the legitimacy of the assertion of sovereignty (which was largely based
on terra nullius) with the recognition that terra nullius is not a legitimate concept and there was prior occupation.
a. Is legitimacy just achieved by force, persuasion, or is it simply to accept that we have inherited this
framework and working with it.
b. Cochran/Me: Perhaps we should recognize that there isn’t an answer to the obvious contradiction. The
court focuses on the reality today. That “we are all here to stay”. Then focus on solving the problems that
arise today.
- Dealing with the middle ground between aboriginal rights and title in the context of a semi-nomadic society, ends up
deciding in favour of title.
o If there was a strict interpretation of title (as the BCCA did in this case) there would be very small areas with
title (intensive occupation) and large areas with only rights, because it is a semi-nomadic group.
- Legal test for aboriginal title
1. Sufficiency of Occupation (as opposed to intensive)
  The concept of exclusive occupation was further defined to include areas beyond where there was
an intensive usage.
 The question becomes whether there was a sufficient occupation (not necessarily intensive). >
Lower standard for title. For example hunting/fishing grounds can count, not just
settlements/villages. > so not a European standard.
 Because there is no clear test this is a question of fact and the trial judge’s decision is given a great
deal of deference. For a finding of fact to be overturned there should be a palpable and overriding
error. In this case the SCC affirmed the trial decision and rejected the BCCA.
 There has to be some objective evidence (e.g. archeological evidence), but in aboriginal title cases
the difference between subjective and objective can be very murky.
 In assessing this part of the test the behaviour of other groups can be useful to determine if there
was sufficient occupation. For example did other groups have to ask for permission to enter.
2. Continuity:
 No requirement of uninterrupted continuity, simply that evidence of present occupation must be
rooted in pre-sovereignty occupation. Same standard as Van Der Peet for rights.
 This is a question for the trial judge to decide.
3. Exclusivity:
 Exclusivity should be understood in the sense of intention and capacity to control the land. The fact
that other groups or individuals were on the land does not necessarily negate exclusivity of
occupation.
 Exclusivity can be established by proof that others were excluded from the land, or by proof that
others were only allowed access to the land with the permission of the claimant group.
 Must objectively show that there was exclusive occupation of the area (e.g. archeological instead of
oral history).
- Comment about the test:
o The concepts of sufficiency, continuity and exclusivity provide useful lenses through which to view the
question of Aboriginal title.
o This said, the court must be careful not to lose or distort the Aboriginal perspective by forcing ancestral
practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating
pre-sovereignty Aboriginal interests into equivalent modern legal rights.
o Sufficiency, continuity and exclusivity are not ends in themselves, but inquiries that shed light on whether
Aboriginal title is established. > so a tool to give effect to s.35
- Framework for justifying an infringement: Usually if there is title declared by court would require consent by the
group, but this framework applies to justify an infringement where consent is not granted.
a. Must discharge procedural duty to consult
b. The actions must be backed by a compelling and substantive objective
i. This indicates the seriousness of the public goal.
ii. Parra. 82: In this context a compelling and substantial objective must further the goal of
reconciliation.
c. The actions be consistent with the Crown’s fiduciary duty to the group (Sparrow)
i. The Crown has to act in a way that recognizes what aboriginal title is, particularly in the interest of
future generations.
ii. It infuses a requirement of proportionality to the process (similar to s. 1)
d. Summary: The Crown has to show that infringing on aboriginal title is necessary to achieve the compelling
and substantive objective, which must further reconciliation and the actions should be proportional to the
title being infringed.
i. Although the test would seem quite stringent, some of the examples include economic ventures
that perhaps hint towards the test not being so difficult to meet.
- What happens if title has not being declared by court but it still being asserted:
a. Crown still has a duty to consult and where possible accommodate the request/views of a group asserting
title.
b. This duty varies according to the extent of the infringement and the strength of the assertion of title.
- Reduces the inherent limitations of aboriginal title:
 o Inherent limit is justified because it is a community ownership, so unlike fee simple (individual ownership) it
also belongs to present and future community members.
o Can look comparatively at Indian Oil and Gas Act which allows some exploitation.
o You can also look at industry standards to compare what is acceptable in that industry.
o The land is not a museum item, it can and should be exploited as a resource.
o Limitation is that there should not be a permanent destruction (for the sake of future generation),
sustainable exploitation is allowed. (For example if you do forestry> replant). Also it can only be sold to the
Crown.
o Less stringent than Delgamuukw which focused on protecting the basis for the claim (e.g. if the claim was
for hunting, make sure you can still hunt). Here it only says it should prevent permanent destruction.
o There is a fiduciary duty on the Crown to Aboriginal people, in this case the title holders including future
generations. A fiduciary duty is an equitable obligation similar to a trustee. This is why the Crown has
responsibility to ensure the inherent limit is not breached.
o There is no guidance on who could raise a claim on the inherent limitation, presumably it would be the
Crown or members of the community. The court just said they would until such an occasion arises to decide
on how to exercise the fiduciary duties.
- Relationship between aboriginal title and the Crown’s allodial title:
o The crown has underlying title and the aboriginal title is a burden on the crown title.
o If there is aboriginal title, the aboriginal group has the right to the use, enjoyment, and exploitative profit
derived from the land (similar to a fee simple).
o So the crown’s underlying title is similar to the crown allodial title in fee simple. However, there are some
differences like the inherent limit
o The crown is the underlying holder so in theory there could be an escheatment in the case an inherent limit
is broken. But this is only speculation.
- Application of provincial law, in this case the Forest Act (parra. 98-100)
a. This issue is addressed although it was not strictly necessary for the decision, 3 questions:
i. Do provincial laws of general application apply to land held under Aboriginal title and, if so, how?
1. Context: Prior to 1982 Aboriginal rights existed, but had not being constitutionalized.
Therefore they were in no special position in relation to laws applicable to aboriginal
people.
2. As a general proposition, provincial governments have the power to regulate land use within
the province. This applies to all lands, whether held by the Crown, by private owners, or by
the holders of Aboriginal title. The foundation for this power lies in s. 92(13).
a. Most cases and discussions on aboriginal title (including this one) arise under laws
passed under this power, in this case the Forest Act on forestry.
3. A province’s power to regulate lands under Aboriginal title may in some situations also be
limited by the federal power over “Indians, and Lands reserved for the Indians” under s.
91(24).
a. Pursuant to this power the Indian Act was validly enacted, while it has being widely
criticized, some aboriginal communities oppose its abolishment as it grants some
rights and recognition.
4. The question is whether the Forest Act in its application to the Tsilhqot’in Nation can be
considered also an infringement on Federal law.
ii. Does the British Columbia Forest Act on its face apply (as a matter of statutory interpretation) to
land held under Aboriginal title? and
1. No, the Forest Act says that it applies to Crown Land, the lands are “vested” in the
Aboriginal group and the lands are no longer Crown lands.
2. If title had not been declared by court then the Act would apply because during this period,
Aboriginal groups have no legal right to manage the forest; their only right is to be
consulted, and if appropriate, accommodated with respect to the land’s use.
3. Where title has been established, however, the beneficial interest in the land vests in the
Aboriginal group, not the Crown. The timber on it no longer falls within the definition of
“Crown timber” and the Forest Act no longer applies.
 4. I add the obvious — it remains open to the legislature to amend the Act to cover lands held
under Aboriginal title, provided it observes applicable constitutional restraints.
iii. If the Forest Act on its face applies, is its application ousted by the operation of the Constitution of
Canada?
1. Currently, the Forest Act applies to lands under claim, but not to lands over which Aboriginal
title has been confirmed.
2. However, the provincial legislature could amend the Act so as to explicitly apply to lands
over which title has been confirmed. This raises the question of whether provincial forestry
legislation that on its face purports to apply to Aboriginal title lands is ousted by the
Constitution.
3. Potential issues could be found under s. 35 or alternatively under interjurisdictional
immunity as an infringement of the federal core. The Court prefers s. 35
a. Under s. 35 the test is not met, the Act fails at the very second stage of the
infringement test as it is not found to be a compelling and substantial objective.
b. This type of conflict should not be solved under IJI because:
i. IJI immunity is directed to ensuring that the two levels of government are
able to operate without interference in their core areas of exclusive
jurisdiction. This goal is not implicated in cases such as this. Aboriginal
rights are a limit on both federal and provincial jurisdiction.
ii. It would also have undesirable consequences
Treaty Rights
- S. 35(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land
claims agreements or may be so acquired.
- Treaty rights are distinct from Aboriginal rights, but they both are constitutionally protected by s.35 (1)
- 3 eras of treaty making
o Pre-Confederation (1763-1867):
 375 treaties between Crown and First nations.
 Ab groups had comparatively greater bargaining power.
 Cochran sees 1850 as the date where the treaties became about a larger area of land.
o Post-Confederation (1867-1923):
 150 treaties.
 The crown took a more dominant role, though they never fully overwhelmed ab agency.
o Modern Treaties (1923-now):
 16 treaties,
 Starts with the James Bay and Northern Quebec agreement.
 Resurgence of ab power.
o Cochran would add a new era after the Calder decision in 1973 where ab title was recognized.
 This paved the way for more bargaining power for the ab peoples.
- S. 35 (1) Framework:
o Is there an existing aboriginal right?
 In this context it includes aboriginal rights, title and treaty rights.
 So treaty rights are constitutionally protected, even if signed after 1982.
 Van der Peet provides a framework with factors for this question.
o Has the right been extinguished?
 Would have to have happened pre-charter with clear intention and all that.
o Has the right been infringed?
 Not only the right itself but the preferred way of exercising that right.
o If so, is that infringement justified?
 Generated by SCC in Sparrow/Gladstone
 Rights arising from a treaty can also be constitutionally infringed it is found to be justified.
 - Procedural duties
o Includes the duty to consult and sometimes to accommodate.
o Based on the principle of the “honour of the Crown”.

Macklem: “First Nations Self-Government and the Borders of the Canadian Legal Imagination” (1991)
- Prior to the charter, treaty rights were imagined in law in such a way to make them unenforceable or
enforceable only against state inaction.
- The approach taken by the courts have shifted from seen ab people as inferior to considering them at the same
level.
o Early courts saw treaties as legally unenforceable political agreements.
 The R v Syliboy case in 1929 is an example of a treaty seen as unenforceable in a court of law.
Because the SCC held that aboriginal peoples had no capacity to enter into treaties.
o After that courts rejected this view and see treaties as contractual rights.
 However because they were only contractual and not Constitutional before 1982, the Crown
could regulate them or extinguish them.
o The contractual view eventually changed and now treaties are seen as sui generis agreements, not as a
normal contract between two parties.
 Treaties requires that the parties have authorities to bind themselves.
 There must be an intent to create legal obligations.
 There has to be a measure of solemnity to formalize a treaty.
 Courts must consider the political, cultural and historical context into the process of
interpretation. Paying more attention to the ab group’s view of what the treaty means.
 In Simon (1985), after s. 35(1) the SCC looked at the same treaty from Syliboy and overruled the
Syliboy ruling that ab people could not enter into treaties. Also the SCC gave 4 for treaty
interpretation.
 Treaties should be given fair, liberal construction in favour of the ab people.
 Treaties should be construed not according to the technical meaning of the words but in
the sense that they would be naturally understood by the ab people.
 The treaty right to hunt ought to be interpreted in a flexible way that is senstitive to the
evolution of changes in normal hunting practice.
 The right to hunt contemplates those activities incidental to hunting.
- The judicial interpretation of treaties traditionally did not take into account ab cultural differences.
o This resulted in expansive definitions of the meaning of land surrenders and narrow interpretations of
treaty benefits for ab people.
o Recent jurisprudence is more accommodating to the cultural difference.

R v Sioui (1990 SCC)

- The issue was the constitutionality of actions of members of the Huron nation on reserve.
- They were convicted of cutting down trees, camping, and making fires in a provincial park contrary to provincial
law.
- Ds alleged they were engaging in ancestral customs and religious rites protected by a treaty right from a 1760
treaty.
- Lamer gave a broad interpretation to the treaty provision “for the exercise of Huron religion and their customs”
because the text made no mention of where those rights could be exercised.
o Crown argued that the treaty was not meant to apply to parks
o Lamer held the issue should be solved by “determining the intention of the parties… at the time it (the
treaty) was concluded”
o Lamer acknowledge the possibility of different interpretations of the parties’ common intention and
stated that the Court must chose “the common intention.. which best reconciles the Hurons’ interests
and those of the conqueror”
 - Decided that Hurons could carry their customs over the whole territory as long as the carrying on of their
customs and rites is not incompatible with the particular use made by the Crown of the territory.

R v Badger (1996 SCC)

- Cannons of interpretation for treaties:
o 1st remember that treaties are an exchange of solemn promises between the Crown and the ab nation.
 Meaning the nature of the agreement is sacred.
o 2nd the honour of the Crown is always at stake in dealing with ab people.
 Interpretation must be approached in a way which maintains the integrity of the crown.
 It is always assumed that the Crown intends to fulfill its promises.
o 3 any ambiguities or doubtful expressions must be resolved in favour on the abs.
rd

 Any limitations which restrict ab rights under treaties must be narrowly constructed.
o 4th the onus of proving that a treaty or ab right has been extinguished lies upon the crown.
 There must be strict proof of the fact of extinguishment and evidence of a clear and plain
intention on the part of the crown to extinguish those rights.

R v Marshall (1999 SCC)

Facts:

- Marshall a Mi’kmaq citizen was charged with fishing and selling 463 pounds of eel without a license, contrary to
the fed regulations of the Fisheries Act.
o Similar to Van der Peet but argued under treaty rights, not aboriginal rights.
- As a teenager he had been wrongfully convicted and sent to jail which generated a lot of press attention to this
case.
- D said he was entitled to sell the eels by virtue of a treaty rights agreed to by BC in 1760.
- In 1760 the ab group asked for trading posts in exchange for their peltry.
o The written documents contained only the promise by the ab group not to traffic, barter or exchange
any commodities in any manner but with such persons as shall be appointed by the crown. In exchange
the Crown was to establish a “truckhouse” (a trading post) with “necessaries”.
o The issue is whether this clause (which is negative> a restraint on who the Mi’kmaq can trade with)
implied the grant of the positive right to the ab group to bring the products of their hunting, fishing and
gathering to a trading post.
- The trial judge held that there was no positive right to trade in the trade clause and rejected D’s defence.

Issue: Does D have an existing treating right exempting from compliance with the federal legislation?

- Yes: the negative trade clause implies that a positive right to fish/hunt was to be protected under the treaty.
Also because the truckhouse was only meant to have “necessaries”, this implies an inherent limit on the right
which only allows the Mi’kmaq to fish/hunt for moderate livelihood (more than bare necessities but less than
fully commercial.
- The analysis of an alleged treaty rights must start by examining the words of the written K.
o In this case it’s complicated because the crown signed multiple agreements with different Mi’kmaq
communities in 1760-61 intending to consolidate them into a single treaty that never happened.
o However trial judge was satisfied that the treaty presented before him was the one applicable to this
case.
- The words:
o The “trade clause” is framed in negative terms as a restraint on the ab group to trade with non-
government people.
o A “truckhouse” was a type of trading post promise by the crown that disappeared from NS in 1780.
o D argues that the words in the trade clause imply that a larger treaty was made which granted positive
rights.
 o Trial judge was wrong in strictly limiting the evidentiary sources and not considering any extrinsic
evidence:
 Even in modern k law extrinsic evidence is available to show that a written document does not
include all the terms of the K.
 Even in a treaty that purports to contain all the terms the SCC has made it clear that extrinsic
evidence of historical and cultural context of the treaty can be receive even absent any
ambiguity.
 Where a treaty was concluded verbally and written afterwards by Crown reps, it would be
unconscionable for the crown to ignore the oral terms while relying on the written terms.
 While the rule of interpretation is generous this does not mean that there is a “vague sense of
after-the-fact largesse”. The generous rules are dictated because there is a special difficulty in
ascertaining what was agreed.
 When choosing among various interpretations of common intention [at the time the treaty was
made] the court should choose the one which best reconciles ab interests and those of the
crown.
- 1760 negotiations:
o The treaty was made after years of hostilities were the Mi’kmaq were supported by and siding with the
French.
o After the French fell there was a bad winter and the Mi’kmaq approached the crown looking for help
and kinda threatening to get violent if they weren’t helped.
o The treaties (like the one at trial) were all very similar and sort of peace treaties, that’s why they made
sure that the Mi’kmaq could not trade with enemy nations (namely the French)
- The purpose was for trade to occur, therefore it makes sense that the Mi’kmaq would have a right to continue
fishing, hunting etc. Otherwise it made little sense to set up trading posts to buy their products and be the
exclusive purchaser.
o Therefore the trial judge was wrong to find that the treat only gave the rights in the written K.
o This interpretation would not represent the common intentions at the time, maintain the honour of the
crown, nor the reasonable expectations of the ab group.
- Given that the text is incomplete, what are the terms of the treaty?
o The right to fish is not mentioned. But this makes sense because at the time it was thought that water
resources were unlimited.
 Courts can imply terms that give contractual efficacy where it is on the basis of presumed
intentions of the parties and necessary to assure the efficacy of the K. (officious bystander test)
 The honour of the crown requires that the necessary terms are implied, since terms are implied
in modern contracts prepared by “sophisticated parties and their legal advisors”. So of course
terms should be implied here were the K was all written by one party.
 While usually the right to trade would no imply any rights of access to things to trade in this case
the honour of the crown requires it to make sense of the 1760 negotiations.
 So right to fish implied.
- Rights of other inhabitants
o A general right enjoyed by all citizens can be made the subject of an enforceable treaty promise.
o However treaty rights also enjoy special protection against interference with its exercise.
o Until 1982 treaty rights could be overridden just like the rights of other people, but now they can only
be broken down when justified with the Sparrow test.
o Although the right to fish and hunt at the time of the treaty conferred a right no greater than those
enjoyed by others, now they have higher protection as constitutionally protected.
- Honour of the crown
o Idea that the crown’s honour is always at stake when dealing with ab people.
  An interpretation of events that turns a positive Mi’kmaq trade demand into a negative
Mi’kmaq covenant us not consistent with the crown’s honour.
 It is also not consistent to interpret the treaty as providing a trading facility while denying any
treaty protection to the things that were to be traded.
- The limited scope of the treaty right
o Crown concern that recognizing a constitutionally entrenched right with a trading aspect would open
the floodgates to uncontrollable and excessive exploitation of resources.
 They argue that trading is different than hunting/fishing for consumption only, which has a built-
in restriction.
o This argument is based on a misunderstanding of the narrow ambit and extent of the treaty right.
 However the treaty stated that the truckhouse would be established “for the furnishing them
with necessaries” meaning that it was not a right to trade for economic gain, but to trade for
necessaries. This makes the right self-contained.
 Today “necessaries” are similar to what Van der Peet described as “moderate livelihood”.
 It does not mean bared subsistence, but the basics as “food, clothing and housing,
supplemented by a few amenities” but not for the accumulation of wealth.
 It addresses day-to-day needs.
 This was the common intention in 1761 and should be the interpretation today.
 This means that the fed can regulate catch limits expected to produce a moderate livelihood for
the ab group without violating the treaty right.
- Application to the facts
o D charged with selling eels without a license, fishing without a license, and fishing during the close
season with illegal nets. These are all under fed regulations.
o The regulations all place the issuance of licenses within the absolute discretion of the minister.
 Nothing in the regulations gives direction to the Minister to explain how to exercise the
discretionary author in a way which would respect D’s treaty rights.
o Sparrow test> Same test applies for treaty rights:
 Is the limitation unreasonable,
 Does it impose undue hardship
 Does it deny right holders their preferred means of exercising their right.
o The regulations against fishing without a license and selling eels without a license fail to accommodate
treaty rights and do prima facie infringe D’s rights. Therefore they are inoperative against D unless
justified under the Badger test (not sure what this test is)
o The charge for fishing during the close season with improper nets is also a prima facie infringement, as
“there can be no limitation on the method, timing, and extent of Indian hunting under a Treaty” apart
from a limitation in the treaty itself.
- Conclusion
o D caught and sold the eels to support himself and his wife. Therefore the regulations if enforced would
interfere with D’s right to fish for trading purposes and infringe his right to trade for sustenance. Since
there is no justification for the regulatory prohibitions D is acquitted.

Mchlachlin dissent:

- The treaty was only meant to apply while there were trading posts, once the truckhouses disappeared the rights
emanating from the treaty were no longer valid.

Post Decision
- Eastern fishermen went nuts burnt a few boats and applied for a re-hearing fearing that Ab people would have
an unlimited right that would ruin the fishermen’s livelihood.
- In an unprecedented move the SCC clarified its decision a month later issues a statement that said:
 o Decision does not grant a treaty right “to gather” anything and everything physically possible.
o It does not affect logging, minerals, or off-shore natural gas.
o Neither does it affect exploitation of resources that could be considered a “logical evolution” of treaty
rights to fish, wildlife, or things traditionally gathered by the Mi’kmaq in a 1760 lifestyle.
 Such as right is not barred but would have to be argued in its own merits.

Duty to Consult
- Affirmed in Delgamuukw
o The nature and scope of the duty depends on the circumstances
 Less serious breach > no more than a duty to discuss important decisions that will be taken with
respect to lands held under ab title.
o Even if the standard for consultation is low, the consultation must be carried in good faith and with the
intention of substantially addressing the concerns of the ab peoples whose lands are at issue.
o Some cases may even require the full consent of ab people particularly when provinces enact hunting
and fishing regulations in relation to ab land.

Haida Nation v BC (2004 SCC)

- Strong interpretation to duty to consult and renewed emphasis on crown honour.
- SCC decided that the govt has a duty to consult whenever the govt decision making could adversely affect an ab
right or ab title.
o This duty extends to where title has been asserted but not proven.
- Challenge to a provincial decision to allocate tree farming licenses without consulting.

Facts:

- Haida Nation challenged the provinces unilateral replacement and transfer of tree-farming licences over lands to
which the Haida had a title claim.

Issue: Was there a duty to consult?

- YES
- The provincial govt had a duty to consult and accommodate with respect to harvesting timber in the land.
- Cochran: SCC trying to set the framework for a political process where there is a claim for title or a treaty
negotiation. This is relevant for the creation of institutions that can implement this framework, including
aboriginal institutions.
- Duty grounded on “the honour of the Crown”
o Honour gives rise to different duties in different contexts.
o In the context of negotiating claims to ab rights and title, Delgamuukw tells us it requires the Crown to
act honourably in participating in processes of negotiation, and while those processes continue to
consult and where indicated accommodate ab interests.
o Because the title claims/negotiations take a long time the crown is supposed to adjust its conduct and
cannot quash ab interests where claims affecting those interests are being seriously pursued.
o Therefore obligations are triggered on a prima facie claim of aboriginal title.
- This does not make the Crown impotent, they can still manage the resource in question but depending on the
circumstance they will have to consult and accommodate.
o To unilaterally exploit a claimed resource in a way that may deprive the ab group some or all of the
benefit of the resource if they succeed in the claim is not honourable.
- Reconciliation flows from the crown’s duty of honourable dealing towards ab people, which arises from the
assertion of sovereignty over ab people and de facto control of land and resources that were formerly in the
control of that people.
- The duty to consult and accommodate will vary with the circumstances
 o It is proportionate to a preliminary assessment of the strength of the claim supporting the existence of a
right and the seriousness of the potential effect on the right or title claimed.
- Conclusion: In this case the strength of the Haida claim and the serious impact of harvesting the tree means that
the honour of the crown might require significant accommodation pending a resolution of the claim.

Taku River Tlingit First Nation v BC (2004 SCC)

- Decided at the same time as Haika on a duty to consult over building a road across the groups traditional
territory.
- Court found that there was a duty to consult but that it was met by the crown.
o Court decided that the assessment committee had given sufficient attention to the issues initially and
after concerns were raise by the ab group.
o Court found that there was no duty to reach an agreement with the ab group and failure to reach an
agreement did not breach the obligations of good faith.

Mikisew Cree First Nation v Canada (2005 SCC)

- The crown “taking up” surrendered lands to build a winter road to meet regional transportation needs.
- The road would reduce the territory over which the group would be entitle to exercise its treaty rights to hunt,
fish and trap.
- Court found the duty to consult was breached.
o While the crown had authority under the treaty to “take up” surrendered lands, it was still under the
obligation to inform itself on the impacts the project would have on the groups rights, and to
communicate those findings.
o They also had a duty to attempt to deal with the group in good faith and with the intention of
substantially addressing their concerns.
- Because it was a small winter road on surrendered lands that were expressly subject to “taking up” the crowns
duty to consult was at the lower end of the spectrum.
o Crown only required to provide notice and engage with ab group directly,
o The engagement included providing info about project and the impact it would have on ab rights.
- The crown did not discharged this obligations by unilaterally declaring the road would be moved.

Beckman v Little Salmon/Carmacks First Nation (2010 SCC)

Facts:

- Treaty signed in 1996-97 > treaty rights still under charter protection even if post-1982.
- Problem was a decision by the Yukon territorial government to approve the grant of 65 hectares of surrendered
land to a Yukon resident named Larry Paulsen for agriculture.
- The land neighbours ab group’s settlement and its traditional land over which they have treaty rights to
hunt/fish for subsistence.

Issue: Ab group says decision was made without consulting them.

- Court goes on rant about how great the 1993 Yukon treaty was.
o Took 20 years of negotiation and eventually a great umbrella treaty for the Yukon was made, this is one
of 11 Treaties under that umbrella.
o Quantum leap from old treaties that were vague, since 1975 (James Bay and Northern Quebec) treaties
have been detailed and set out rights with precision.
o The modern treaties attempt to accomplish s. 35 (1) reconciliation by attempting to achieve a
prosperous relationship for the future of ab-crown relationships.
o There is more of an equal standing in negotiations with lawyers on both sides, meaning we can assume
the parties actually meant what they entered into.
- However, the honour of the crown should still play a role in interpretation of the new treaties.
 o The constitutional source of Crown obligations towards ab people means that the crown cannot
contract out of those obligations via a treaty. By obligations they mean consult/accommodate.
o In this K there was no provision about consultation, but consultation is a constitutional obligation so its
there.
- Treaty gave ab groups a right to hunt/fish in the land
o It was obvious that land use decisions would affect this right so there was a duty to consult and
investigate how those rights would be affected.
- The nature of the Duty to Consult/Accommodate
o The foundational case is the Haida Nation case.
 That case brings a different approach to how the crown (particularly provinces) should act in
relation to resources development.
o Established in Delgamuukw that even if a title claim/treaty process has not been finalized, the duty to
consult still exists.

Trans-Mountain Pipeline (in class discussion)

Homelessness (Special Topic)

Victoria (City) v Adams, 2008 BCSC
Facts:

- There are at present more than 1,000 homeless people living in the City.
- The City has at present 104 shelter beds, expanding to 326 in extreme conditions. Thus hundreds of the
homeless have no option but to sleep outside in the public spaces of the City.
- The Bylaws do not prohibit sleeping in public spaces. They do prohibit taking up a temporary abode. In practical
terms this means that the City prohibits the homeless from erecting any form of overhead protection including,
for example, a tent, a tarp strung up to create a shelter or a cardboard box, even on a temporary basis.
- The expert evidence establishes that exposure to the elements without adequate protection is associated with a
number of significant risks to health including the risk of hypothermia, a potentially fatal condition.
- The expert evidence also establishes that some form of overhead protection is part of what is necessary for
adequate protection from the elements.

Issue: Does the prohibition against erecting temporary shelter on public property infringe the s. 7 rights of homeless
people?

- YES: The prohibition is both arbitrary and overbroad and not consistent with the principles of fundamental
justice. Also the infringement is not justified pursuant to s. 1 of the Charter.
- S.7 Analysis:
o The Crown argues that the claim on the right to camp in public property is about property rights, which
do not fall within the meaning of s. 7. They argue that the claim amounts to an appropriation of public
property for private use.
 Rejected because the right to set semi-permanent camps is not before the court.
 Instead it is the constitutionality of the prohibition on erecting even a temporary shelter taken
down each morning in the form of a tent, tarp or cardboard box.
 Unlike the distribution of public funds, the use of park space by an individual does not
necessarily involve a deprivation of another person’s ability to utilize the same “resource”.
 There is no evidence that there is any competition for the public “resource” which the homeless
seek to utilize, or that it will not remain available to others if the homeless can utilize it.
 The nature of the government interest in public property has most often been discussed in the
context of freedom of expression.
  In that context, the SCC has rejected the idea that the government can determine the use of its
property in the same manner as a private owner.
 Public properties are held for the benefit of the public, which includes the homeless.
 The government cannot prohibit certain activities on public property based on its ownership of
that property if doing so involves a deprivation of the fundamental human right not to be
deprived of the ability to protect one’s own bodily integrity.
 Therefore the Defendants are not asserting a property right. They are simply saying that the City
cannot manage its own property in a manner that interferes with their ability to keep
themselves safe and warm.
o Is there risk of harm?
 The city says that because there is evidence that some homeless people prefer “tent cities” to
shelters, it cannot not be established that the laws cause them harm.
 This argument is rejected as irrelevant because there is not nearly enough shelter for all
the homeless people in Victoria anyways.
 There is ample expert evidence supporting the idea that there is a risk of harm (particularly
hypothermia) if people sleep outside without overhead cover.
o Is there are deprivation of the following rights:
 Life: The ability to provide oneself with adequate shelter is a necessity of life that falls within the
ambit of the s. 7 provision “life”. Sleeping without overhead protection, can result in a number
of serious and life threatening conditions, most notably hypothermia.
 Liberty: The majority of homeless people in Victoria have no choice but to sleep on public
property. There is no other place for them to go. I agree with the submission of the Defendants
that creating shelter to protect oneself from the elements is a matter critical to an individual’s
dignity and independence.
 Security of the Person: The City has prohibited the erection of temporary shelter in the form of
overhead protection, thereby exposing the homeless to a risk of significant health problems or
even death.
o Is the Deprivation in Accordance with the Principles of Fundamental Justice?
 Yes the bylaws are both arbitrary and overbroad.
- Section 1 analysis: Not passed.
o Important objective: Yes
 The preservation of urban parks is important since they provide significant environmental,
recreational, social and economic benefits to the community.
o Proportionality
 Rational Connection: Maybe
 The question of what sort of shelter homeless people will be permitted to erect is
encompassed in the issue of urban encampments and, in that sense, the provision has a
rational connection to the purpose identified by the City.
 However, what the City identified as the “real urban problems” that come with
homeless encampments – drug use and sales, public elimination of bodily waste,
vandalism, litter, crimes by and against homeless people – are not matters that are
related to the sort of shelter homeless people are permitted to erect.
 These are rather matters related to the presence of a population of homeless people
and the services available for that population. In that respect, the provision is not
rationally connected to the objective.
 Minimal Impairment: No
 The professed concern is for preservation of parks, yet the provision applies to all public
land. The professed concern is for structures that provide for a degree of permanence
yet all overhead protection, included that taken down every morning, is prohibited.
  Proportionate impact: No
 The problems arising from the large number of homeless people will not be exacerbated
if the homeless are permitted to protect themselves from the elements with temporary
shelter. On the other hand, the condition of the homeless people will be improved by
such shelter.
- Remedy: Sections 13(1) and (2),14(1) and (2), and 16(1) of the Parks Regulation Bylaw No. 07-059 and ss. 73(1)
and 74(1) of the Streets and Traffic Bylaw No. 92-84 are of no force and effect insofar and only insofar as they
apply to prevent homeless people from erecting temporary shelter.

Adoption of the Charter: entrenchment, democracy and dialogue

The adoption of the Charter
In class: Broad categories of approaches to the Charter (perhaps only caricatures as actually approaches are
more nuances.
- Liberal Approach:
o Liberal in the sense of individual rights and liberties receiving highest value.
o Tends to be the dominant approach.
o McLachlin, Hogg, and both Trudeaus arguably use this approach.
- Conservative Approach:
o Higher concern with community values and how the right of any one person may not be enough to
undercut those community values.
- Social democratic Approach:
o Wanting the state to intervene and be actively involved in the distribution of resources.
o Prioritizing groups needs and collective goals.

Pierre Trudeau – Canada’s CA and amendments (1968)

- The Charter as different from the Canadian Bill of Rights because it cannot be repealed, so it guarantees
freedoms at the cost of restriction the theory of legislative supremacy.
o Legislative supremacy is seldom pressed to its full state even without an entrenched Charter.
o It ensures that fundamental rights are not dependant on the outcome of elections.
- UN passed two covenants, one on economic/social/cultural rights and one on civil/political rights.

Cairns, Charter vs Federalism: The Dilemmas of Constitutional Reform (1992)

- Constitutional discussion too focused on domestic issues, without taking into account the global context.
- Erosion of Britishness:
o British decline compared to the US (starting in the 40’s) made it so that opposition to a Bill of Rights
based on maintaining Canada’s British heritage was weakened.
o Influx of minorities who were both distrusting of having all confidence on Parliament and feared being
singled out preferred a Bill of Rights.
o Abolition of appeals to JCPC also mattered.
o So national support for a Bill of Rights in the 50’s made sense in a historical context.
- International Rights Dimension
o The UN declaration in 1948 created a “rights debate” in Canada that would not have taken place 20
years prior.

P. Russell: The Political Purposes of the Canadian Charter of Rights and Freedoms (1983)
- 2 purposes: Contribute to national unity and Protect Rights
- National Unity:
o Quebec changed their constitutional position from trying to maintain Parliamentary supremacy to
supporting constitutional reform that would give them more power (e.g. in constitutional amendments).
 o Trudeau wanted a Charter, but his goal was to enhance national unity, being careful not to give it all to
the provinces.
o There was a change in the national identity from post-WWII immigration. The addition of large number
of Canadians with “no experience in liberal democratic values” meant that Canada could no longer rely
on the British method of protecting civil liberties. A written code was needed.
o Some saw the Charter as an example of Trudeau’s and his government’s French roots linking it to the
idea of a code being preferred over parliament/common law.

L. Weinrib: Of Diligence and Dice, Reconstructing Canada’s Constitution (1992)

- At first the charter was just meant to be Patriation of the BNA with an amending formula.
- The Royal Commission on Bilingualism and Biculturalism in 1967 broadened the agenda to include language
rights.
- Other rights-granting constitutional documents like the Bill of Rights do not refer to judicial review, or at the
very least don’t set institutional details like the Charter does.
o The most important elements on institutional structure are s.1 and s.33.
o These sections are the culmination of contentious provincial-federal negotiations.
- 4 possible outcomes of a successful Charter challenge:
o The enjoyment of rights as guaranteed
o Legally prescribed limits upon those rights as justified by govt in courts of law (s.1)
o Constitutional amendment
o The notwithstanding clause

M.E. Gold: The Mask of Objectivity, Politics and Rhetoric in the SCC (1985)
- Quebec didn’t oppose the idea of entrenched rights. Their Charte des droits et libertes de la personne had similar
protections.
- Its reasons for opposing the Charter had to do with division of powers and Quebec’s role in the confederation.

The Merits of Entrenchment and the Legitimacy of Judicial Review

- Revolutionary transformation of the Canadian polity from legislative supremacy to constitutional supremacy.

W. Bogart, Courts and Country (1994)

- Divide between two models:
o 1. Recognizing that the power of the ballot is curbed by independent and tenured judges protecting
rationality and principle. Courts shelter the disadvantaged.
o 2. Placing confidence on elected officials, wary of judicial intervention by unaccountable, elitist,
unrepresentative judges.
- The Case for the Charter:
o Allows individuals (especially minorities) to have their interest protected by judges as opposed to
unresponsive legislators.
o Ability to unite all Canadians, not just white males from two colonizing cultures.
 E.g. female Nova Scotian and British Columbian no longer speaking throught the tensions of
regionalism, but united by their gender.
- Case against the Charter:
o It did not come from an outcry against widespread abuse, but to shore up centralizing tendencies in
response to Quebec.
o Against judges because they prevent true democracy.
o Three criticisms:
 Parliament better suited to deal with these issues.
 Democracy limited.
 Cost of access to courts allows the elites to disproportionally use judicial review to their
advantage.
A. Petter, Immaculate Deception: The Charter’s Hidden Agenda (1987)
- While sold as a part of a “people’s package” the Charter is a regressive instrument more likely to undermine that
to advance the interests of social and economically disadvantaged Canadians.
- Negative nature of Charter rights means that the economic needs of the disadvantage will not be protected by
Charter, this will favour the rich that will benefit from a less distributive economy.
- Historically most victories for economically disadvantaged groups have been achieved through democracy (e.g.
collective bargaining protections).
- The Charter focuses on individual autonomy in the same way the common law used to. This will slow the
progress for disadvantaged groups through democracy.
o This will happen because groups will focus on litigation to protect their rights instead of doing so in the
democratic arena (e.g. women’s groups).
- Obstacles arising from the Nature of the judicial system:
o The cost of litigation
o The composition of the judiciary

L. Weinrib: Limitations on Rights in a Constitutional Democracy (1996)

- Two models for understanding the Charter/role of the courts: The “majoritarian” model and the “supremacy of
rights” model.
- Supremacy of rights model:
o Not necessarily living in conflict with the majoritarian model but complementing it where undesirable
effects of regulatory schemes are not foreseeable.
o Different reason for limiting rights:
 Not about individual rights succumbing to the majority, but rather about them being limited so
that everyone can enjoy them.

Hogg and Bushell: The Charter Dialogue between Courts and Legislatures (1997)
- Judicial review as part of a dialogue between judges and legislatures.
- Where a judicial decision is open to legislative reversal, modificiation, or avoidance, then it is meaningful to
regard the relationship between the Court and legislative bodies as a dialogue.
o The judicial decision causes a public debate in which Charter values play a more prominent role than
they would without the decision.
- How the Dialogue works:
o Law struck down on Charter grounds > Decision can be reversed, modified or avoided.
o While the courts’ decision is not really final, it forces elected officials to have a debate they would not
otherwise have.
o This dialogue is only possible because a decision can be reversed, modified or avoided by elected
officials. This also ensures that the final decision is a democratic one (within constitutional constraints)
o Of 65 cases where laws were invalidated for a breach of charter:
 44 the legislative body amended the impugned law (usually with minor changes to ensure
Charter compliance.
 2 decision effectively reversed by legislation. (by s.1 and s.33)
- 4 features of the Charter that facilitate Dialogue (allow legislative body to advance objective by respecting
constitutional requirements.
o S. 33
 Override clause
o S. 1
 Justifying limitations on rights.
 Also minimum impairment test means that new legislation enacted after a successful Charter
challenge can accomplish the same objectives while being charter compliant.
o The qualified rights in ss. 7, 8, 9, and 12.
  Allow for actions that satisfies standards of fairness and reasonableness.
o S. 15
 Can be satisfied through a variety of remedial measures.
- Barriers to Charter dialogue:
o Where the very objective of the impugned provision is unconstitutional. (Arguably Morgentaller)
- Charter dialogue can occur even where laws are not struck down, as the debate will become forefront.

K Roach, Supreme Court on Trial: Judicial Activism or Democratic Dialogue

- The “judicial activism” debate has been incorrectly imported from the US without taking into account that ss. 1
and 33 make decisions from the SCC fundamentally different that the SCOTUS.
- Instead there is a “fertile and democratic middle ground between the extremes of legislative and judicial
supremacy.
- The allegations of “judicial activism” can have a negative impact on the role that courts must play in this
dialogue.

Charter Standing and Remedies

Standing:
Canada (AG) v. Downtown Eastside Sex Workers United Against Violence Society (2012 SCC)
Issue: Whether public interest group and individual should be granted public interest standing.

- YES
- In determining whether to grant standing in a public law case, a party seeking public interest standing must
persuade the court that these factors, applied purposively and flexibly, favor granting standing:
1. whether the case raises a serious justiciable issue;
2. whether the party bringing the case has a real stake in the proceedings or is engaged with the issues
that it raises; and
3. whether the proposed suit is, in all of the circumstances and in light of a number of considerations, a
reasonable and effective means to bring the case to court.
- In this case, the issue that separates the parties relates to the formulation and application of the third factor.
o This factor has often been expressed as a strict requirement that a party seeking standing persuade the
court that there is no other reasonable and effective manner in which the issue may be brought before
the court.
o While this factor has often been expressed as a strict requirement, this Court has not done so
consistently and in fact has rarely applied the factor restrictively.
o Thus, it would be better expressed as requiring that the proposed suit be, in all of the circumstances and
in light of a number of considerations, a reasonable and effective means to bring the case to court.
 Consider purposively/flexibly whether:
 The proposed action is an economical use of judicial resources,
 The issues are presented in a context suitable for judicial determination in an adversarial
setting
 Permitting the proposed action to go forward will serve the purpose of upholding the
principle of legality.
- Application to this case:
o All three factors, applied purposively and flexibly, favour granting public interest standing to the
respondents.
o There is no dispute that the first and second factors are met.
o The third factor is also met.
 The existence of a civil case in another province (Bedford at the ONCA) is certainly a highly
relevant consideration that will often support denying standing.
  However, the existence of parallel litigation ― even litigation that raises many of the
same issues ― is not necessarily a sufficient basis for denying standing.
 Given the provincial organization of our superior courts, decisions of the courts in one
province are not binding on courts in the others.
 Also the existence of other potential plaintiffs, while relevant, should be considered in light of
practical realities.
 It is very unlikely that persons charged under the prostitution provisions would bring a
claim similar to the respondents’.
 The record shows that there were no sex workers in the Downtown Eastside willing to
bring a challenge forward.
 Other considerations should be taken into account in considering the reasonable and effective
means factor.
 This case constitutes public interest litigation: the respondents have raised issues of
public importance that transcend their immediate interests.
 Their challenge is comprehensive, relating as it does to nearly the entire legislative
scheme. It provides an opportunity to assess through the constitutional lens the overall
effect of this scheme on those most directly affected by it.
 A challenge of this nature may prevent a multiplicity of individual challenges in the
context of criminal prosecutions.
 There is no risk of the rights of others with a more personal or direct stake in the issue
being adversely affected by a diffuse or badly advanced claim.
 It is obvious that the claim is being pursued with thoroughness and skill.
 There is no suggestion that others who are more directly or personally affected have
deliberately chosen not to challenge these provisions.
 The presence of K, as well as the Society, will ensure that there is both an individual and
collective dimension to the litigation.

Remedies:
- S.24(1):
o Anyone whose rights or freedoms as guaranteed by this Charter, have been infringed or denied may
apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and
just in the circumstances.
- S.24(2)
o Explicit provision for the remedy of exclusion of evidence obtained in violation of Charter rights.
- S. 52(1)
o The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the
provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
- Difference between s. 24 and s. 52(1):
o In R v Big M Drug Mart the SCC clarified the difference:
 s. 24 sets out a remedy for individuals (real or artificial) whose rights under the Charter have
been infringed. So violations through application not law.
 Individualized remedies like exclusion of evidence (24.2), declarations that rights have
been infringed, damages, injunctions.
 Does NOT include constitutional exemptions.
 S. 52 applies where a law is unconstitutional but the claimants Charter rights have not been
infringed. So violations inherent in the law itself.
 Declarations of legislative invalidity, including partial invalidity are granted under s. 52.
 Also includes constitutional exemptions.
  Damages are not available under s.52. But Mackin left the door open for combining
remedies under ss.24(1) and 52(1) to give damages where there was a declaration of
invalidity.

K Roach, Constitutional Remedies in Canada (1994)

- Main purposes of constitutional remedies:
o The correction of constitutional violations.
o The regulation of governmental behaviour.
- The constraints to constitutional remedies include:
o The interests affected by remedies.
o Respect for appropriate institutional roles. (e.g. concerns about judicial activism)
- Corrective theory and the role of the judiciary
o Judges are only justified and competent to order remedies to the extent that they repair harms caused
by a government’s violation.
o If a court focuses on correcting harms caused by proven violations, it will not have to worry about
infringing the role of other branches to pursue distributive justice.
o Judges do not attempt to deduce remedies from the nature of the violation, but rather fashion them to
achieve compliance with the Constitution in the future.
- One paradoxical result of the courts attempt to respect the role of legislatures is that they strike down laws
entirely instead of reading in terms or granting limited constitutional exemptions.
- Another effect is the preference for general forms of declaratory relief as opposed to specific or mandatory
remedies. Although remedies affect budgets, courts hesitate to interfere unduly with budgetary policy.
- A judicial ruling is rarely final because the legislature can respond with new legislation, justified under s.1 or by
using s.33.

Remedies under s. 52
- A declaration that a law is entirely invalid can be overly broad however only some parts of the law or its
applications infringe the Charter.
o Partial invalidation can be accomplished though severance, reading down, reading in, and constitutional
exemptions.
- A declaration of invalidity can also be problematic for underinclusive laws, where the problem is that benefits
provided to some are not being provided to others (usually s.15)
o Striking down the law would take away the benefit from everyone.
o Extension of benefits is a possible remedy that may be achieved through severance of an explicit
limitation or by reading in an extension of benefits. (likely criticized as activist judges)
- While the new remedial possibilities can preserve socially useful laws and avoid the creation of legislative gaps,
they are criticized as judicial activism.
- Another option is a temporary suspension of a declaration of invalidity for a period of time to allow Parliament
or the provincial legislature to fill the void.
o While attractive from the perspective of maintaining an appropriate judicial role, it may fail to provide
adequate redress as it allows the violation to persist for a period of time.

Schachter v Canada (1992 SCC)

Facts:

- Unemployment Insurance Act provided mothers who had given birth 15 weeks of maternity benefits and
adoptive parents only 15 but they could be shared by mother and father.
- S.15 challenge by a birth father who did not qualify for benefits under the act.
- Trial court ruled for parent and granted a declaratory relief under s.24(1) extending the same benefit adoptive
fathers had to natural fathers.
Issue: Did the trial judge have jurisdiction to order the remedy granted?

- A court has flexibility in choosing a remedy for a law that did not survive s. 1 scrutiny.
- S. 52 mandates the striking down of any law inconsistent with the constitution, but only “to the extent of the
inconsistency”.
o Depending on the circumstances under s. 52 a court can
 strike down,
 strike down but temporarily suspend the declaration of invalidity,
 read down
 read in
- s.24 applies to all courts of competent jurisdiction and gives them power to grant an “appropriate and just”
remedy to “anyone whose Charter rights and freedoms have been infringed or denied.
- The doctrine of Severance/Reading Down:
o Severance is used to interfere with the laws adopted by the legislature as little as possible.
o Where only a portion of the law is violates the Constitution only the offending portion should be
declared of no force or effect.
o In some cases severing the offending portion would be more intrusive to the legislative purpose than
striking down provisions which are not themselves offensive, but are closely related with those that are.
 Reading down rests on the assumption that the legislature would have past the constitutionally
sound part of the scheme without the unsound part. This is not always the case.
- Reading in as Akin to Severance:
o Where the Charter inconsistency is found in what the statute excludes as opposed to what it includes,
the logical result is that reading in is equivalent to reading down.
o In these cases it would be arbitrary to treat inclusively and exclusively worded statutes differently. This
would make the style of the drafting the single critical factor in the determination of a remedy.
o So focus on the appropriate remedy, not on the label given to the remedy.
- The Purposes of Reading in and Severance
o Respect for the Role of the Legislature:
 Both Reading in and Severance avoid undue intrusion into the legislative sphere.
 Sometimes both will not be the lesser intrusion because it is not a safe assumption that
parliament would have passed the law without the impermissible part, or with the part that
makes it permissible.
o Respect for the Purposes of the Charter
 Reading in makes sense in cases under s. 15 where for example fathers don’t have the same
benefit as mothers. While s. 15 could be met by taking away from mothers too, the purpose of
the Charter would be to expand benefits to fathers, so reading in makes sense.
o Conclusion
 Reading in is similar to severance and should be available under s.52 where it is an appropriate
technique to fulfil the purpose of the Charter while minimizing the interference with Charter
compliant parts of the legislation.
- Choice of Remedial Options Under s. 52:
o Defining the extent of the inconsistency which must be struck down:
 The manner in which the law violates the Charter and fails under s.1 will be essential to this
determination.
 Sometimes s.52(1) mandates defining the inconsistent portion very broadly.
 This is the case if it fails the 1st part of the Oakes test (purpose not pressing)
 Sometimes s.52(2) mandates defining the inconsistent portion narrowly.
 Usually if part 2 or 3 of proportionality in Oakes is not met.
o Deciding between severance and reading in:
 Remedial precision:
  While both serve the same purposes there is a key difference, in severance the
inconsistent part of the statutory provision can be defined with some precision.
 Reading in should only be used when the extension required to make the law compliant
with the constitution can be defined in some precision, where it can then the legislature
should fill the gaps, not the court.
 Interference with the Legislative Objective:
 the objective and the means chosen by the legislature to implement its objective should
be considered.
 If the choice is unequivocal, to further the objective through different means would be
unwarranted.
 Even if the objective is not in conflict, reading in can involve an intrusion into budgetary
decisions.
 While budgetary issues are not relevant under s.1, they become relevant under s.52 to
determine a remedy.
 The change in Significance of the Remaining Portion:
 Would the meaning of the (Edited) law be substantially different?
 For extending benefits to a group not included, the question of substantial change
focuses on the relative size of the two relevant groups.
 If the group added is smaller than the group originally benefitting then it is sound to
assume that the legislature would still have enacted the benefit.
o E.g. extending benefits to homosexual couples is a lot less intrusive than taking
them away from heterosexual couples.
 Not really only about numbers/budget, but if a group not included is substantially larger
than a group included, then it would not be sound to assume the legislation would have
passed the benefit without the exclusion (e.g. extending benefits for the disable to
everyone)
 The significance of the remaining portion
 The significance of the remaining purpose may be enhance where the Constitution
specifically encourages that sort of provision.
 Conclusion
 No easy formula, but it is case specific.
o Whether to temporarily suspend the Declaration of Invalidity
 Suspending is clearly appropriate where the striking down of the provision poses a potential
threat to the problem.
 It may also be appropriate in cases of under-inclusiveness as opposed to overbreadth.
 Mostly for budgetary/objective concerns.
 However a delayed declaration is a serious matter from the POV of Charter enforcement.
 It allows a state of affairs which violates the Constitution to persist.
 Therefore reading in can be preferable where appropriate.
 Suspending a declaration is decided after the decision to read in or strike down, so if
reading in was already less intrusive, the option to strike down with suspension is not
better.
 Conclusion: Suspending a declaration should not turn on considerations of the role of the courts
and legislature, only on the effect of an immediate declaration on the public.
- Application to this case:
o This case is about the extension of a positive right that the legislature is not constitutionally obligated to
provide to the excluded or included group.
o Also the excluded group (birth fathers) is substantially larger than the included one (adoptive fathers).
 o Therefore the appropriate decision would be to declare the provision invalid but suspend the
declaration so that the legislation be amended.
o However, Parliament has already decided to extend the benefits, but to limit them to 10 weeks for both
adoptive and birth fathers. Therefore no action is taken.

Section 1
Defining Limitations
- 2 main structural components of s.1:
o Requirements that all limits on rights be “prescribed by law”.
o Requirements that limits be “reasonable” and “demonstrably justified in a free and democratic society”.

Prescribed By Law:
- The requirement that a limit on a Charter right have the form of a law.
- Therens: This requirement is chiefly concerned with the distinction between a limit imposed by law and one that
is arbitrary. To fall under the meaning of s.1 the limit must be either:
o Expressly provided for by statute or regulation,
o Result from the necessary implications from the terms of a statute or regulation or from its operating
requirements or,
o Result from the application of a common law rule.
- The rule of law is a key value that underlies the “prescribed by law” requirement. > closely related with
vagueness.
- Courts have been reluctant to set too high a standard, concerned that an excessive emphasis on precision in
language may unduly restrict legislatures in accomplishing their objectives.
o Irwin Toy: Absolute precision in law exists rarely, if at all. The question is whether the legislature has
provided an intelligible standard according to which the judiciary must do its work.
o Taylor: Reluctant to circumvent the s.1 balancing analysis by finding that the words are too vague to
meet the “prescribed by law requirement”, unless the provision could truly be described as failing to
offer an intelligible standard.
o Osborne: Vagueness can have constitutional significance under s.1 in two ways:
 So uncertain as to be incapable of being interpreted as to constituted any restraint on
governmental power.
 A law which passes the threshold but by reason of its imprecision does not qualify as a
reasonable limit.

R v Nova Scotia Pharmaceutical Society (1992 SCC)

Facts:

- D charged under the Combines Investigation Act with conspiring to lessen competition unduly in the sale of
prescription drugs.
- D moved to quash the indictment arguing that the provisions violated s.7 on the grounds of vagueness.
- SCC rejected this motion rejecting the appeal.

Issue: Should the indictment be quashed on the grounds of vagueness?

- NO
- Vagueness can be raised under s.7 as a fundamental principle of justice.
- It can also be raised under s.1, on the basis that an enactment is so vague as to not satisfy the requirement that
a limitation on Charter rights be “prescribe by law”.
- Factors to consider to determine whether a law is too vague include:
o The need for flexibility and the interpretative role of the courts
o The impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate
 o The possibility that many varying judicial interpretations of a given disposition may exist and perhaps
coexist.
- Vagueness raises similar considerations under s.7 or s.1 (in limine). However under the minimal impairment
branch of s.1 it merges with the related concept of overbreadth.
- The court will be reluctant to find a disposition so vague as not to qualify as a law under s.1 in limine, and will
rather consider the scope of this disposition under the minimal impairment test.
- The proper place of the Doctrine of Vagueness in Charter Adjudication:
o The doctrine of vagueness is a single concept, whether it’s under s.7 or s.1 of the in limine.
o From a practical POV it makes little difference where it is considered, since a s.1 in limine analysis
immediately follows the determination of whether s.7 has been violated.
o Vagueness may be raised under the substantive sections of the Charter where these sections comprise
some internal limitation.
 For example under s.7 it may be that the limitation on life, liberty and security of the person
would not otherwise be objectionable, but for the vagueness of the impugned law. In which
case vagueness would be among the principles of fundamental justice.
 Outside of these cases, the proper place for vagueness is s.1.
- The Content of the Doctrine of Vagueness:
o The threshold for finding a law vague is relatively high.
o There are two key rationales that serve as theoretical foundations of vagueness, both related to the rule
of law:
1. Fair Notice to the Citizen:
 Two components of fair notice
o Formal/procedural aspect: acquaintance with the actual text of a statute, not
really a central concern.
o Substantive aspect: An understanding that some conduct comes under the law.
A subjective understanding that the law touches upon some conduct, based on
the substratum of values underlying the legal enactment and on the role that
the legal enactment plays in the life of a society. For example what constitutes
homicide is not vague, or also that we have to be licensed to drive.
2. Limitation of Law Enforcement Discretion
 Described as a “standardless sweep”. A law must not be so devoid of precision in its
content that a conviction will automatically flow from the decision to prosecute.
 When the power to decide whether a charge will lead to a conviction or an acquittal
(normally a judicial power) is fused with the power to prosecute because of the wording
of the law, then a law will be unconstitutionally vague.
o The scope of precision:
 The substantive notice and the limitation of enforcement discretion rationales point to the same
direction: An unintelligible provision gives insufficient guidance for legal debate and is therefore
unconstitutionally vague.
 Legal rules only provide a framework, it can only delineate a risk zone and cannot hope to do
more.
 By setting out the boundaries of permissible vs impermissible conduct, the norms give rise to
legal debate. Allowing a discussion to their actualization. Limiting discretion with boundaries
and sufficiently delineating an area of risk to allow for substantive notice to citizens.
 No higher requirement to certainty can be imposed.
o Vagueness ad the Rule of Law:
 We must move away from the non-interventionist attitude that surrounded the development of
the doctrine of the rule of law to a more global conception of the State as an entity bound by
and acting through law.
  The modern state plays a role well beyond collecting taxes and policing, it entered into social
and economic policy, where positions are not so clear cut.
 What is problematic is not such much general terms conferring broad discretion, but terms
failing to give direction as to how to exercise this discretion.

Justification
R v Oakes (1986 SCC)
Facts:

- A law created a reverse onus by presuming intent to traffic where there was drug possession of any amount.

Issue: The test under s.1

- S.1 states that the rights and freedoms are guaranteed subject only to such reasonable limits prescribed by law
as can be demonstrably justified in a free and democratic society.
o Values and principles essential to free and democratic society include:
 Dignity of the person, respect for cultural/group identity etc.
o The values and principles of a free and democratic society are the genesis of the rights and freedoms
guaranteed by the Charter and the ultimate standard against which a limit on a right/freedom must be
shown.
- The onus on proving that a limit on a right/freedom is justified rests upon the party seeking to uphold the
limitation.
o This is because the word “demonstrably” is in the text of s.1.
o The presumption is that the rights are guaranteed (not to be limited) unless the part invoking s.1 can
bring itself within the exception criteria which justify their being limited.
o However the govt might not always need to provide evidence, since there are cases where certain
elements of the s.1 analysis are obvious or self-evident.
o The standard of proof is the civil standard. However it must be applied rigorously.
- The test:
o Pressing and substantial purpose
 Almost always met.
 The purpose that will be taken into account is the purpose of the infringing measure, not the
whole act.
 The definition of the purpose will be essential for the proportionality test.
 Big M: The govt cannot rely on a different purpose than the one which animated the law at the
time of its enactment. In this case the purpose was found to be to enforce the observance of
resting/Sunday Christian day, which was not found to be pressing or substantial.
 Where the objective is not found to be pressing/substantial the analysis ends before reaching
the proportionality part.
o Proportionality test
 Rational connection to the objective
 Not arbitrary, unfair or based on irrational.
 Oakes failed here because it was found that the reverse onus on trafficking based on
any possession without even a limit on the quantity was not rationally connected to the
objective of preventing trafficking.
 Minimal impairment
 Not really minimal impairment.
 Should impair as little as possible, sufficient to fall within reasonable alternatives.
 This is where most limits fail.
o Complete bans or rules with no exceptions are very likely to fail.
  A law will fail when the court considers that a small or debatable decrease in the law’s
effectiveness will significantly reduce its interference with the protected right.
 Usually the Govt has to show why other less infringing schemes would not meet the
objective.
 Proportionality between the deleterious and the salutary effects of the measure.
 Usually it only plays a formal role, given little weight.
 Dickson clarified that it was not just about deleterious effect vs objective, but
deleterious effect vs salutary effects.
o For example in Sharpe a regulation on child pornography was found not to meet
this part of the test, because although the objective outweighed the deleterious
effect, the prohibition also captured other materials that posed little or no risk
to children.

Two subsequent developments of the Oakes test:

- The emergence of a contextual approach to the assessment of limits under s.1
o Requires that courts assess the value or significance of the right and its restriction in their context rather
than in the abstract.
o For example when balancing restrictions on hate speech, courts should not simply balance preventing
hate speech vs freedom of expression. They should consider what the restriction achieves in practices
(effectiveness) against the actual cost to freedom of expression.
 On this subject the SCC has found some forms of expression (e.g. hate promotion) less valuable
(and less connected to freedom of expression) than others.
- The Court’s willingness to defer to the legislature’s judgment about the need for, and effectiveness of a
particular limit on a Charter right.
o There is a lot of debate in the decisions about how much the court should defer.

Alberta v Hutterian Brethren of Wilson Colony (2009 SCC) > Religious freedom
Facts:

- Law passed requiring all drivers’ licences to have a picture, changing former regulation with exempted those
who had religious reasons not to have a picture taken.
- Hutterian Brethrens have religious reasons why they don’t want to be photographed. They claim a s. 2(a)
violation and gave evidence that without driver’s licences their communal lifestyle would be affected.
- The province claims the universal photo requirement was connected to a new system aimed at minimizing
identity theft.
- At trial and ABCA the courts found a s.2(a) violation that was not justified under s.1.

Issue: Is the limitation on the freedom of religion justified under s.1?

- The belief is honest and the effect does not only personally affect members, but also the whole community,
which should be considered under the deleterious effects.
- S.2(a) test:
o The claimant sincerely believes in a belief or practice that has a nexus with religion
 Conceded by the province
o The impugned measure interferes with the claimant’s ability to act in accordance with his religious
beliefs in a manner that is more than trivial or insubstantial.
 Not conceded, but found to be met by the courts below and not reviewed here.
- Particular challenge with freedom of religion because although it is a broad right under the Charter, allowing
every claim has the potential of diminishing the implementation and universality of the laws.
- Is it prescribed by law?
o Yes.
- S.1: Is the purpose pressing and substantial?
o Yes, maintaining the integrity of the driver’s licensing system in a way that minimizes the risk of identity
theft is clearly a goal of pressing and substantial importance.
o The universal photo requirement is also aimed at harmonization of international and interprovincial
standards for photo identification.
- S.1: Proportionality
o Is the limit rationally connected to the purpose?
 Yes, the evidence supports the view that a universal photo system would be a more effective
way of preventing identity theft than one that grants exemptions.
o Does the limit minimally impair the right? (Are there less harmful ways of accomplishing the goal?)
 YES: All other options would significantly increase the risk of identity theft.
 Courts should accord the legislature a measure of deference, particularly on complex social
issues where the legislature may be better positioned than the courts to choose among a range
of alternatives.
 If the law falls within a range of reasonable alternatives, the court will not find it overbroad
merely because they can conceive of an alternative which might better tailor objective to
infringement. (RJR-MacDonald)
 On the other hand if the govt fails to explain why a significantly less intrusive and equally
effective measure was not chosen, the law may fail. (RJR-MacDonald)
 However, the less infringing alternative considered by the court need not satisfy the
objective to exactly the same degree as the impugned measure. Equally above should
not be taken to an impractical extreme that immunizes the law.
 The courts below where wrong to apply Multani and reasonable accommodation instead of
Oakes and minimum impairment for the s.1 analysis.
 Accommodation is a concept in human rights law that requires accommodation to the
point of undue hardship (e.g. employer should change building for the disabled to the
point of undue hardship).
 Reasonable accommodation is about application of the law to specific individuals under
human right laws.
 Minimal impairment is about the law itself, not the application. The issue is whether the
goal of the measure could be accomplished in a less infringing manner.
o Are the overall effects of the law on the claimants disproportionate to the govt’s objective?
 Unlike the first 3 stages this stage is not about the purpose of the law, but about the severity of
the deleterious effect of a measure on individuals or groups. Therefore a law could pass all the
other steps and fail here.
1. Salutary effects:
 The first inquiry, in this case they are: enhancing the security of the driver’s licensing
scheme, assisting in roadside safety and identification, eventually harmonizing AB’s
licensing scheme with other jurisdiction.
 The key one is the security which ensures a one-to-one licence to photo
correspondence. Making sure that no one owns more than one licence.
 Govt not required to prove that the law will in fact produce the benefits. Legislatures
can only be asked to impose measures that reason and the evidence suggest will be
beneficial. If legislation designed to further the public good were required to await
proof positive that the benefits would in fact be realized, few laws would be passed and
the public interest would suffer.
2. Deleterious effects:
 In judging the seriousness of a limit on religion the claimants view is important, but the
view must be considered in the context of a multicultural, multi-religious society, where
 the duty of state authorities to legislate for the general good inevitable produces
conflicts with individual benefits.
 If the limit leaves the claimant with a stark choice between violating a religious belief or
disobeying the law, the infringement will be very serious.
 In other cases the incidental effects of a law passed for the general good on a particular
practice may be less serious. They may impose costs in terms of money, tradition or
inconvenience, while still allowing the claimant to practice their religion.
 The charter guarantees freedom of religion, but does not indemnify practitioners
against all costs incident to the practice of religion.
 The effect in this case does not rise to the level of depriving the Hutterian claimant of
a meaningful choice as to their religious practice.
o They can still arrange for 3rd parties to drive them for example. While this may
be at great cost there is no evidence it would be prohibitive.
3. Weighting in the salutary and deleterious effects:
 Conclusion that the impact of the limit on religious freedom is proportionate.
- Abella dissent:
o Important to remember that freedom of religion has both individual and collective aspects, which are
both engaged in this case.
o S.1:
 Minimal impairment:
 While the universal photo requirement will no doubt maximize security, the question is
not whether the infringing measure fulfills the govt’s objective more perfectly than any
other, but whether the means chosen impair the right no more than necessary to
achieve the objective
 However this stage should not be the end of the s.1 analysis as a law cannot meet the
minimal impairment test and on balance, given the importance of the govt objective, be
proportional.
 Therefore the heavy lifting should be done in the last step – proportionality.
 Proportionality:
 While the universal requirement helps, the facial recognition technology is hardly
foolproof, since it is not so advanced to make a definitive determination of whether two
photos are of the same person.
 Also there are 700,000 Albertans without a driver’s licence that have no photo in the
system. There are also multiple ID’s in Alberta that have no pictures, so the risk is there
and there is no reason why 250 (Hutterians) extra exceptions would have an impact on
this risk.
 Therefore adding the Hutterians is only marginally useful, while the impact on the
religious freedom of the Hutterians is considerable.
 The requirement force the Hutterians to choose between compliance with religious
beliefs or giving up their self-sufficiency. > hiring driver presumably no longer self-
suficient.
 Therefore the test is not met.
- Lebel and Fish (dissent)
o Agrees with Abella that community matters for religious freedom.
o S.1
 Minimal impairment
 Not literally minimal, but infringed “as little as possible”, within a range of reasonable
options.
  To determine whether the impugned law falls under the reasonable options the
objective must be considered
 The goal at this stage of the s.1 analysis is to preserve constitutional rights, by looking
for a solution that will reach a better balance, even if it demands a more restricted
understanding of the scope and efficacy of the objectives of the measure.
 Sometimes the objective might be read down somewhat in order to achieve
proportionality.
 Conclusion:
 Agrees with Abella that the govt has failed to prove that the limitations are justified.
 Also the licence is not a privilege granted at the discretion of govts.
o Every would-be driver is entitle to a licence provided that he meets the
conditions and qualifications.
o Licences are of critical importance in daily life, particularly in rural AB.

Section 15
- Equality Rights
o 15. (1) Every individual is equal before and under the law and has the right to the equal protection and
equal benefit of the law without discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical disability.
- Affirmative action programs
o (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration
of conditions of disadvantaged individuals or groups including those that are disadvantaged because of
race, national or ethnic origin, colour, religion, sex, age or mental or physical disability
 There is some litigation specifically on s.15(2) that we don’t focus on in this class, however
s.15(2) is still relevant as it used as an interpretive aid for s.15(1)

Colleen Sheppard, “Constitutional Equality: Challenges and Possibilities” in Inclusive Equality: The
Relational Dimensions of Systemic Discrimination in Canada
- In Andrews (the leading decision under s.15) the SCC established constitutional protection against both direct
and adverse effect discrimination.
o The recognition of adverse effect discrimination meant a reject of formal equality and a constitutional
acceptance of substantive equality, give that to treat everyone the same would not be sufficient.
o Mcyntyre J said: “It must be recognized at once… that every difference in treatment between individuals
under the law will not necessarily result in inequality and… that identical treatment may frequently
produce serious inequality”.
o The SCC rejected the “similarly situated” formula, which requires that all those similarly situated should
be treated alike.
o Instead Andrews endorsed substantive equality, where discrimination claims are based on the
discriminatory effects and outcomes of the laws and social policies, to see if one group suffers from
more adverse consequences than others.
- In Law v Canada (1999), a test was proposed (and at the time accepted for s.15) the test required that a law or
policy:
1. Result in differential treatment or effects
2. Be based on enumerated or analogous grounds of discrimination
3. Constitute discrimination in the “substantive sense”, measured in relation to the purposes to be
advanced by the protection of constitutional equality.
 Focus on violation of essential human dignity and freedom and brought s.1 analysis on
ameliorative effects into s.15. Consider the following factors:
 1. Pre-existing disadvantage, stereotyping, predjudice or vulnerability of the claimant or
others.
2. Correspondence between grounds and the actual need, capacity, or circumstances of
the claimant or others.
3. Ameliorative purpose/effects of the law on a more disadvantaged group.
o In Kapp this was considered as a s.15(2) defence on a s.15(1) violation, with the
burden on the govt.
4. Nature and scope of the interest affected by the law.
- In R v Kapp (2008), the SCC went back to the original Andrews framework and proposed this test:
1. Does the law create a distinction based on enumerated or analogous grounds of discrimination?
2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
a. Consider 4 Law factors here
- Key purposes articulated by the Court:
o Redressing historical social disadvantage
 Focus on discrimination of specific social groups
 This was emphasized in Andrews and Kapp, as human dignity is too nebulous a concept.
o Respect for human dignity
 Frames equality rights in terms of the individualistic and abstract idea of respect for human
dignity.
 This was emphasized in Law, but later found to be in conflict with a group based approach to
discrimination. It was also a very different standard to meet, creating obstacles for claimants, so
it was de-emphasized.
- Andrews test for recognizing an analogous group (not enumerated)
o Did the group constitute a discrete and insular minority?
o Had the group experienced historical exclusion, social disadvantage, prejudice and stereotyping?
 There is some tension between the historical exclusion approach and the enumerated
categories in s.15 which are symmetrically articulated. (e.g. given that race is enumerated, does
it matter if the exclude group are Caucasians?)
- To ascertained whether discrimination has occurred in a substantive sense, Law considered the following non-
exhaustive list of factors:
o Pre-existing disadvantage experienced by the group
o The correspondence between the ground(s) the claim is based on and the actual need, capacity, and
circumstance of the claimant and others.
o The ameliorative purpose of the impugned provision upon a more disadvantage person/group in society
(is this in comparison to the claimant?)
o The nature and scope of the interest affected by the impugned law.

Equality as a comparative concept

- In Andrews McIntyre describe equality “as a comparative concept, the condition of which can only be …
discerned in comparison to the condition of others…”
o Unlike other charter rights equality is about relative harms rather than absolute harms.
- The Court also said that s.15 should be reserved for groups that have been historically discriminated.
- There are many issues when defining the group and particularly the comparator group being defined narrowly.
This is because the Court will look for the “mirror image”, meaning a direct parallel.
o For example in Bliss, instead of defining the claimant’s group as women and the comparator group as
men, the groups select were pregnant women vs non-pregnant women, which set aside all the gender
discrimination issues that could have been raised.
o In Auton (a case about autistic kids seeking new forms of treatment) the comparator group was defined
as “a non-disabled person or person suffering from a disability other than mental seeking funding for a
non-core therapy important for his/her future health, which is emergent and only recently recognized”.
 o In a case of a 20+ year marriage-like couple that separated 2 years before a partner’s death, the
comparator group was divorced women, instead of separated married women, for the purpose of the
will.
- IN CLASS: Another option to the “mirror image” approach is to frame the comparison in a way that advances the
purposes and objectives of s.15. This more flexible approach was taken in Whitler (2011)

Issues when applying substantive equality

- It conflicts with liberal and neo-liberal principles.
- Because govt is seen as a limit/violator of freedoms in the liberal world-view instead of a grantor of benefits this
can influence the way s.15 cases go.
- However the s.15 cases are not about formal equality or equality before the law, it is about substantive equality,
which is closer to equity.

Andrews v Law Society of BC (1989 SCC)

- Although McIntyre J. dissented on s.1, it was his framework for s.15 (where he did find a violation) that became
the leading case and test under s.15.
- S. 15 meant to be contextual and protect substantive equality.
- On Substantive equality:
o Equality does not require identical treatment, in fact the interest of true equality may well require
differentiation in treatment.
o The “similarly situated test” that like things should be treated alike, while unalike things should be
treated unalike is rejected as deficient.
o It must be recognized that the promotion of equality has a much more specific goal than the mere
elimination of distinctions. A law has to be substantively discriminatory.
 If the Charter was intended to eliminate all distinctions there would be no place for multicultural
heritage (s.27), freed of conscience/religion (2.a), aboriginal rights (25). Also s.15(2) on
affirmative action would not be required.
- On Discrimination
o Definition:
 A distinction, whether intentional or not,
 based on grounds relating to personal characteristics of the individual or group,
 which has the effect of imposing burdens/obligation/disadvantages on such individual or group,
 not imposed upon others, or which withholds or limits access to opportunities, benefits, or
advantages available to other members of society.
o Discrimination is unacceptable in a democratic society because it epitomizes the worst effects of the
denial of equality and discrimination reinforced by law is particularly repugnant.
- The test: A claimant must show
1. A distinction in treatment
 Not a high threshold, questions of reasonableness should be considered under s.1 where the
state carries the burden.
2. On the basis of an expressly prohibited ground or one analogous thereto.
 Andrews test for recognizing an analogous group (not listed > in this case non-citizens)
 Does the group constitute a discrete and insular minority?
o Yes, permanent residents are, they lack political power which makes them
vulnerable to have their rights violated.
 Had the group experienced historical exclusion, social disadvantage, prejudice and
stereotyping?
o Nothing on this…
 Also considered in this case:
 o Non-citizenship is immutable, beyond the control of the individual, at least
temporarily.
o Citizenship is irrelevant to the legitimate work of govt, and t the individual’s
ability to perform or contribute to society.
3. That results in the imposition of a burden or denial of a benefit which is discriminatory
 No need for intent as a required element of discrimination.
 In this case the test is met because the law prevents them from participating in a type of work.
 Although the focus is on the effects, laws that are neutral on their face but have adverse effects
are generally not found to meet the s.15 test.
 Only Vriend and Eldridge serve as examples of laws that were found to violate s.15
solely due to adverse effect.
 The lack of adverse effect success cases brings into question the substantial equality
purpose.
- S.1
o The test under s.1 for s.15 violations should be the same Oakes test as for other sections.

Quebec v A (2013 SCC) / Erick v Lola

Facts:

- Quebec did not provide for spousal support nor property division between unmarried couples.
o In most common law provinces spousal support was provided, but not property division.
o Couples can usually contract out of these dispositions.
- M lives with W and they have 3 kids.
o W wants to get married
o M doesn’t
o After 7 years they separate
o M gives W the house they live, court declares M should pay child support (this ends here).
o W does not get spousal support or property declaration as they are not provided for in Quebec law.

Issue: Whether the provisions in Quebec’s Civil Code that exclude de facto spouses from the property and support
rights granted to married and civil union spouses violate s. 15 of the Charter

- Debate:
o On the one side are arguments justifying differential treatment based on respecting the choice of
whether or not to marry;
o On the other side are arguments favouring similar treatment based on the functional similarities
between married and unmarried couples, combined with the increasing social prevalence and
acceptability of common law relationships.
- In Miron [1995 SCC] marital status was recognized as an analogous ground of discrimination.
o The SCC found that the exclusion of unmarried couples from certain automobile insurance benefits
provided to married couples constituted unjustifiable discrimination on the basis of marital status.
o Miron left open the question of whether the same constitutional analysis should apply to the private
relationship between spouses, i.e. rights of property sharing and spousal support.
- All of the common law provinces have extended rights of spousal support to unmarried couples but most have
not extended rights of matrimonial property division.
o The issue of whether the exclusion of unmarried couples from provincial matrimonial property regimes
violated s. 15 of the Charter had been dealt with by the Supreme Court of Canada in Walsh, [2002 SCC]
where the court upheld the exclusion, finding no violation of s. 15 and thus no need to even address s. 1.
o This case is about whether Walsh remains good law, given the changes in s.15 jurisprudence since 2002.

Abella (majority for s.15 violation, dissent in finding invalid under s.1)
- The current legislative scheme in Quebec leaves an economically vulnerable spouse excluded from mandatory
support and property division regimes simply because he or she was not in a formally created union.
- As part of the acceptance of marital status as an analogous ground in Miron, McLachlin J. recognized that
unmarried spouses have faced historical disadvantage stemming from societal prejudice.
o The fact that society appears to have attenuated overtly discriminatory attitudes it once held towards a
group, does not mean that there is no continuing discriminatory conduct, however benignly or
unconsciously motivated.
- It is the discriminatory conduct that s. 15 seeks to prevent, not the underlying attitude or motive.
o That was the lesson learned from the former “dignity” test from Law.
o In Kapp, this Court recognized that “dignity” was an underlying objective of the whole Charter, not a
discrete and additional component of the equality test that the claimant had the burden of proving.
- Andrews/Kapp test P must show that the government has:
1. Made a distinction based on an enumerated or analogous ground and
 Analogous grounds are “personal characteristic[s] that [are] immutable or changeable only at
unacceptable cost to personal identity”
 Any discussion of the reasonableness of distinctions based on [the choice not to marry], or
justifications for such distinctions, must take place under s. 1.
 To focus on the “choice” to marry at the s. 15(1) stage is not only contrary to the
approach in Andrews it is completely inconsistent with Miron and undermines the
recognition of marital status as an analogous ground.
2. That the distinction’s impact on the individual or group perpetuates disadvantage by perpetuating
prejudice or stereotyping
 Prejudice: holding of pejorative attitudes based on strongly held views about the appropriate
capacities or limits of individuals or groups.
 Stereotyping: Attributing characteristics to members of a group regardless of their actual
capacities.
 Prejudice and stereotyping are neither separate elements of the Andrews test, nor categories
into which a claim of discrimination must fit.
 A claimant need not prove that a law promotes negative attitudes, a largely unquantifiable
burden. They are just consideration.
 The contextual factors will vary from case to case — there is no “rigid template”
 The root of s. 15 is our awareness that certain groups have been historically
discriminated against, and that the perpetuation of such discrimination should be
curtailed.
 If the state conduct widens the gap between the historically disadvantaged group and
the rest of society rather than narrowing it, then it is discriminatory.
- Application
o Made a distinction based on an enumerated or analogous ground
 Yes, marital status was recognized in Miron as an analogous ground
o The distinction’s impact on the individual or group perpetuates disadvantage
 That it imposes a disadvantage is clear:
 The law excludes economically vulnerable and dependent de facto spouses from
protections … explicitly overriding the couple’s freedom of contract or choice.
 The disadvantage this exclusion perpetuates is an historic one: it continues to deny de
facto spouses access to economic remedies they have always been deprived of.
 Discrimination
 There is little doubt that some de facto couples are in relationships that are functionally
similar to formally recognized spousal relationships.
  Even if there is a range of need or vulnerability among de facto spouses, as there must
inevitably be, this Court has held that heterogeneity within a claimant group does not
defeat a claim of discrimination.
 Even if only some members of an enumerated or analogous group suffer discrimination
by virtue of their membership in that group, the distinction and adverse impact can still
constitute discrimination.
 There is no need to look for an attitude of prejudice motivating, or created by, the
exclusion of de facto couples from the presumptive statutory protections. Nor need we
consider whether the exclusions promote the view that the individual is less capable
or worthy of recognition as a human being or citizen — which, as discussed in Kapp,
would be difficult to prove.
o Abella found the s.15 violation could not be saved under s.1, for failing minimum impairment.

Deschamps (+2) > (decisive minority for s.1 justification)

- Agree w/Abella on s.15 violation.

- Differentiation between general laws for the “protection of vulnerable persons” (like child support which applies
to marriage-like) and the division of patrimony which has the purpose of achieving autonomy and fairness for
couples who were able/wanted to accumulate property.
- S.1
o Pressing and substantial
 Yes the purpose is promoting the autonomy of the parties.
o Rational connection
 Yes, even a tenuous connection will satisfy the constitutional requirement in this regard.
o Minimum impairment
 On Support: It is possible for a couple to remain unmarried contrary to the ardent wish of one of
its members, the vulnerable one, so freedom of choice may be theoretical.
 There are other options that would be less impairing for support, like imposing on the
parties an obligation to resolve their separation fairly and imposed on the dissatisfied
party the burden of proving that the conditions of separation are unfair.
 Therefore the law is not justified under s.1 as far as support goes.
 While not providing support to the vulnerable couple is not justified, the lack of measures
relating to the share of ownership is.
 This right too is patrimonial in nature. Unlike support, this measure does not relate to
the ability of vulnerable persons to meet their basic needs.
 If one spouse has been unjustly enriched at the other’s expense, this could be rectified
by an action for unjust enrichment.
 The government had the power to impose measures of patrimonial protection on a
given group, and it was not obliged to impose them on everyone.
 McLachlin:
o Consider federalism > The test must not be applied in a manner that amounts to
identifying the Canadian province that has adopted the “preferable” approach
to a social issue and requiring that all other provinces follow suit.
o Even if de facto spouses were given the opportunity to opt out, this scheme
would offer a narrower conception of choice than does Quebec’s current
approach.
o Difference with Deschamps: the protective effects of support and property
division are intertwined and cannot be readily separated.
o Proportionality
  The disadvantages of this measure do not outweigh its advantages, since, although the parties
do not have an automatic right, there are nevertheless other ways for them to obtain sufficient
protection
 McLachlin:
 The impugned provisions enhance the freedom of choice and autonomy of many
spouses as well as their ability to give personal meaning to their relationship.
 Against this must be weighed the cost of infringing the equality right of people like A,
who have not been able to make a meaningful choice.
 Must consider the need to allow legislatures a margin of appreciation on difficult social
issues and the need to be sensitive to the constitutional responsibility of each province
to legislate for its population.

Lebel (dissent, no s.15 violation)

- In Kapp, the Court reworked and provided important clarifications to the analytical framework for applying the
s. 15(1) equality guarantee. However, some authors argue that those decisions did not eliminate all uncertainty
concerning the concepts of disadvantage, prejudice and stereotyping in this framework
o Section 15 applies not only to laws enacted with discriminatory intent, but also, even if there is no such
intent, to laws with discriminatory effects.
o Section 15(1) does not prohibit distinctions that have an adverse impact unless they are discriminatory.
- Kapp, a discriminatory disadvantage is as a general rule one that perpetuates prejudice or that stereotypes, the
following test applies:
o Does the law create a distinction based on an enumerated or analogous ground?
o Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
 Perpetuating prejudice:
 Perpetuating prejudice if it denotes an attitude or view concerning a person that is at
first glance negative and that is based on one or more of the personal characteristics
enumerated in s. 15(1) or on characteristics analogous.
 An adverse distinction can also be inconsistent with s. 15, even if there is no
discriminatory intent whatsoever, if it has a discriminatory effect.
 if the government either directly or indirectly disadvantages certain persons who share
one of these personal characteristics that are immutable, or changeable only at
unacceptable cost, it may be that a negative view is thereby being expressed either
consciously or unconsciously.
 Considerations for perpetuating prejudice
o the nature or scope of the benefit or interest which the claimant feels he or she
has been denied.
o Does the distinction restrict access to a fundamental social institution or impede
full membership in Canadian society?
 Stereotyping:
 Met by showing that the disadvantage imposed by the law is based on a stereotype that
does not correspond to the actual circumstances and characteristics of the claimant or
claimant group.
 Such a law will be discriminatory because it is premised upon personal traits or
circumstances that do not relate to individual needs, capacities or merits; thus it is
arbitrary.
 Consider the question of the correspondence, or lack thereof, between the grounds on
which the claim is based and the actual need, capacity or circumstances of the claimant
or the affected group.
 - Under s. 15(2), it can also implement specific programs to help disadvantaged groups. But the govt is prohibited
from showing certain individuals greater respect and consideration simply because they share an enumerated or
analogous personal characteristic.
- Application of the test:
o Does the law create a distinction based on an enumerated or analogous ground?
 Yes, the law clearly treats unmarried couples differently.
 That distinction may result in disadvantages for those who are excluded from the statutory
framework applicable to a marriage or a civil union.
o Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
 It does not perpetuate prejudice, in fact it arguably enhance personal autonomy.
 It does not stereotype, no evidence that it is a stereotype to think that couples choose not to get
married to avoid the legal framework imposed by marriage.

Kahkewistahaw First Nation v Taypotat (2015 SCC)

Facts:

- In response to the 1996 Report of the Royal Commission on Aboriginal Peoples, which emphasized education as
a priority for Canadian Aboriginal communities, and pursuant to the Indian Act the Kahkewistahaw First Nation
in Saskatchewan formulated an Election Code requiring a Grade 12 education for those wishing to be Chief or
Band Councillor.
- P, who had been chief of the Kahkewistahaw First Nation for most of the previous thirty years, contested the
constitutionality of this requirement; P was 76 years old and had a Grade 10 education.
- Failed at FC, won at FCA.

Issue: What is the evidentiary burden that must be discharged for a to support a breach of s.15?

- s. 15(1) of the Charter requires a “flexible and contextual inquiry into whether a distinction has the effect of
perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or
analogous group”.
o The focus of s. 15 is therefore on laws that draw discriminatory distinctions > distinctions that have the
effect of perpetuating arbitrary disadvantage based on an individual’s membership in an enumerated or
analogous group.
o The s. 15(1) analysis is accordingly concerned with the social and economic context in which a claim of
inequality arises, and with the effects of the challenged law or action on the claimant group.
- Test:
o Whether, on its face or in its impact, a law creates a distinction on the basis of an enumerated or
analogous ground.
 Screens out those claims “having nothing to do with substantive equality and helps keep the
focus on equality for groups that are disadvantaged in the larger social and economic context.
 Claimants may frame their claim in terms of one protected ground or several, depending on the
conduct at issue and how it interacts with the disadvantage imposed on members of the
claimant’s group.
o Whether the impugned law fails to respond to the actual capacities and needs of the members of the
group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing,
perpetuating or exacerbating their disadvantage.
 To establish a prima facie violation of s. 15(1), the claimant must therefore demonstrate that
the law at issue has a disproportionate effect on the claimant based on his or her membership in
an enumerated or analogous group.
 The specific evidence required will vary depending on the context of the claim, but “evidence
that goes to establishing a claimant’s historical position of disadvantage” will be relevant.
- Application:
 o Which “enumerated or analogous group” faces discrimination?
 In this case, however, there is virtually no evidence about the relationship between age,
residency on a reserve, and education levels in the Kahkewistahaw First Nation to demonstrate
the operation of such a “headwind”.
 Nor is there any evidence about the effect of the education provisions on older community
members, on community members who live on a reserve, or on individuals who belong to both
of these groups.
 There was no factual record to support deciding the appeal as a violation of the s. 15
rights of community members who live on a reserve. Most significantly, the record is
silent about the education levels of members of the Kahkewistahaw First Nation who
live on a reserve.
o Has P established that the education requirement set out in the Kahkewistahaw Election Act has a
disproportionate effect on the members of any such group?
 Even if it had been properly raised and argued by the parties, I have serious doubts about the
merits of the argument that the education requirements in the Kahkewistahaw Election Act
have the effect of imposing arbitrary disadvantage on community members based on their
residence on the reserve.
 The Kahkewistahaw Election Act specifically requires that the Chief and three of the four
Councillors must reside on the reserve during their term.
 Far from having the effect of excluding community members who live on the reserve,
the Act is specifically designed to foster their participation in community governance.
o Conclusion:
 The FCA erred in concluding that the education provisions in the Kahkewistahaw Election Act
represent a prima facie violation of the s. 15 rights of community members who live on the
reserve.
 The FCA erred in considering census data which showed that older people are less likely o have a
high school education. This data is about the CAN population generally, it is only a weak
inference to assume it applies to 2000 Kahkewistahaw First Nations.
 Same with considering census data about all aboriginal people. Only weak inference for this
community.
- Ratio: While the evidentiary burden need not be onerous, the evidence must amount to more than a web of
instinct. The evidence before us, even in combination, does not rise to the level of demonstrating any
relationship between age, residence on a reserve, and education among members of the Kahkewistahaw First
Nation, let alone that arbitrary disadvantage results from the impugned provisions.

Section 7: life, liberty and security of the person

- “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice”
o Life, liberty and security of the person
 Life:
 Interpreted very narrowly, protecting the right not to die.
 There are very few cases that have been grounded on solely on life, some cases have
touched on it, but it is usually closely related to security of the person.
 Liberty:
 Clearly includes protection from physical restraint (e.g. imprisonment)
 Questions on how far beyond physical restraint liberty can go. Some restraint is shown
in the interests than can be protected under liberty.
 Two interests discussed in this class:
o Autonomy over personal decisions
 o Liberty to decide on use of property (word property no included in s.7)
 Security of the person:
 It has had the most consideration and the most expansive meaning.
o The farthest the interest goes, the more the Court is concern with limiting
violations to the state conduct.
 Right not to have one’s body harmed or physical integrity breached.
o Includes physical and psychological integrity (in which case it has to be state
imposed psychological stress)
o Principles of fundamental justice:
 Overbreadth, Gross disproportionality, arbitrariness.
 In a sense the requirement that the deprivation must not be in accordance with the principles of
fundamental justice brings in a s.1-like test to s.7, as a consequence there has never been a s.7
violation found to be justified by s.1 > although Cochran thinks this might be changing as more
of the s.7 analysis is moved to s.1.
- Not about “natural justice” which is a term understood to mean only procedural and not substantive justice.
o It has been interpreted to mean more than procedural protections, it is something substantive and this
is the way it was interpreted since the beginning in Re Motor Vehicle.
- Limitations:
o Corporations do not have a s.7 right.
o Borowsky, a fetus does not have a s.7 right.
o Does not include property interest, so liberty does not include liberty of contract.
 So no Lochner-like decisions. > US case ruling max hours unconstitutional

Reference re Section 94(2) of the Motor Vehicle Act (BC) (1985 SCC)
Facts:

- S.94(2) of the Motor Vehicle Act imposed a fine and imprisonment on a driver for driving while his licence was
suspended, regardless of knowledge of the suspension or intent.
- Because the Court regarded imprisonment as a clear deprivation of liberty, the decision addressed the meaning
of fundamental justice.
o Keep in mind that life, liberty, and security of the person can be limited without violating s.7 as long as it
is done in accordance with the principles of fundamental justice.

Issue: Defining s.7, particularly the principles of fundamental justice.

- Widespread concern that if s.7 is not narrowly interpreted, courts will be adjudicating the wisdom of
enactments upon the merits of public policy.
o Activist court, judicial “super legislature” etc.
- However the decision to enact the Charter was made by elected officials who intended to entrust the courts
with this onerous responsibility.
o Therefore Charter adjudication can be approach free of lingering doubts as to its legitimacy.
o Should not use the American dichotomy of procedural/substantial, this is an unnecessary “all-or-
nothing” approach that pre-empts and open-minded approach to the meaning of “principles of
fundamental justice”
- Right to liberty:
o Clearly violated here since the penalty is to send D to jail.
- The principles of Fundamental justice:
o They are not a protected interest like life/liberty/security of the person.
 They are the qualifier of those protected interests.
  The meaning must be determined in reference to the interests protected under s.7, it cannot be
interpreted so narrowly as to frustrate or stultify them.
o Wrong to interpret them as synonymous with “natural justice” as that would be too narrow and
inconsistent with the broad, affirmative language in which those rights are expressed.
 This definition would make s.7 narrower than s.9 (not to be detained or imprisoned) or s.8
(search or seizure).
 This would be wrong as ss. 8-14 are illustrative deprivations of s.7. They provide an invaluable
key to the meaning of “principles of fundamental justice”
o Principles of fundamental justices are to be found in the basic tenets of our legal system.
 They do not lie in the realm of general public policy but in the inherent domain of the judiciary
as guardian of the justice system.
 Some developed over time as presumptions of the common law, others through international
human rights conventions.
 In this case there is a principle that no one should be imprisoned unless they are morally
guilty.
 All recognized as essential elements of a system for the admin of justice founded upon a belief
in “the dignity and worth of the human person” and the “rule of law.”
 While some principles of fundamental justice are procedural in nature, they are not limited to
procedural guarantees.

S.7 and Bodily Integrity

- Because imprisonment has found to be a deprivation of liberty under s.7, s.7 was raised in many CC challenges,
particularly about procedure and standard of fault.
- However some cases are also about the integrity of the human body in addition or in the absence of any threat
of imprisonment.

R v Morgentaler (1988 SCC)

Facts:

- S.251(1) of the CC provided that anyone who took steps to cause an abortion was guilty of an indictable offence
and liable to imprisonment for life.
o S.251(4) provided an exception for abortions in a hospital if a hospital committee thought continuing the
pregnancy would/could endanger the life or health of the mother.
- S.251(2) provided that a pregnant female who sought to cause her own abortion was guilty of an indictable
offence and liable to imprisonment for up to 2 years.
- Morgentaler violated these provisions by providing abortions in a clinic (not hospital) and without committee
certificates for each case.
- There was a “therapeutic abortion” defence to the provisions, under s.251(4) but the argument is that this
defence was not working.

Issue: Do the impugned provisions violate the security of the person under s.7?

- Security of the person:

o The first stage of s.7 is a threshold enquiry. If there is a prima facie violation the law can still be saved
under s.7 if it is in accordance with the principles of fundamental justice.
o Long standing principle that the human body ought to be protected from interference by others.
 E.g. at common law a medical procedure without consent is assault, only justified in
emergencies.
 With the Charter the security of the person was constitutionalized.
o P says that “security of the person” under s.7 is an explicit right to control one’s body and make
fundamental decisions about one’s life.
 o Crown says “security of the person is a more circumscribed interest and that like all the elements of s.7
it relates at most to physical control, simply protecting the individual’s interest to bodily integrity.
o Conclusion: State interference with bodily integrity and serious state-imposed psychological stress, at
least in the criminal context, constitute a breach of security of the person.
 Therefore not necessary to examine whether other interests central to personal autonomy (e.g.
privacy) are engaged.
 The law interferes with pregnant women at a physical and emotional level by stating she cannot
submit to a generally safe medical procedure that might be of clear benefit to her.
 Lack of decision making power threaten women in a physical sense.
 Uncertainty on whether abortion will be granted affects them psychologically.
 It can also impose an unnecessary delay on women that ultimately meet the criteria.
- Principles of Fundamental Justice
o When parliament creates a defence to a crim act, it should not be illusory or be so difficult to meet that
it is in practice illusory.
 Therefore the law is not consistent with the principles of fundamental justice.
o As a result of requirements (number of doctors for committees, accreditation) only 20% of hospital
performed abortions. Also provinces can impose restrictive regulations.
 For some women this means that abortion will not be available in their area/province. They can
travel but only at a high emotional/financial burden.
o It is not defined what the “health and life” of the woman means for the committee to decide.
o Conclusion:
 Parliament must be given room to design an appropriate administrative and procedural
structure for bringing into operation a particular defence to crim liability. But if that structure is
“so manifestly unfair, having regard to the decisions it is called upon to make. As to violate the
principles of fundamental justice”, that structure must be struck down.
- S.1
o Not justified.
o Effects of the limitation out of proportion to the objective of protecting the life/health of women. It may
actually defeat that objective.

Beetz (dissent in part)

- Pregnant women cannot be said to be secure if when her life/health is in danger she is faced with a rule of crim
law which precludes her from obtaining effective and timely medical treatment. This is a prima facie violation of
the security of the person.
- While only admin inefficiencies that are cause by the rules of s.251 are relevant to the constitutionality
evaluation, the evidence reveals 3 sorts of delays which can be traced to the s.251 requirements:
o The absence of hospitals with committee in many parts of Canada
o The quotas which some hospitals impose on the number of therapeutic abortions performed
o The committee requirement itself.
- S.7 cannot be invoked simply because a woman’s pregnancy amounts to a medically dangerous condition.
o However if the delays occasioned by s.251(4) result in additional danger, then the state has intervened
and this intervention constitutes a violation of the security of the person.
o 3 types of additional medical risks imposed by the delay:
 Risk of post-op complications increases with delay.
 Risk that pregnant woman will require riskier procedures the more it is delayed.
 Additional psychological trauma.
- However the requirement for an independent medical opinion as to the danger to life/health of pregnant
woman does not offend principles of fundamental justice.
 o Even if right to abortion exists under s.7 (potentially under liberty), there is a state interest in the
protection of the fetus that requires and independent medical opinion as to the danger to the
life/health of the pregnant woman.
 Some delay is ineviatable with any system that limits the therapeutic grounds for allowing an
abortion.
 But if unnecessary requirements like hospital location, committee of more than 3 members,
exclusion of doctors who perform therapeutic abortions were removed, perhaps it would be
reasonable limit under s.1

Wilson:

- Real Issue: Whether a pregnant woman can be compelled by law to carry fetus to term.
o Not just about the specific requirements in the law meet the test on the evidence, but whether the govt
can impose those requirements at all.
o This case is about liberty, not just security of the person.
- Right to access to abortion:
o Right to liberty under s.7
 Inextricably tied to the concept of human dignity.
 It guarantees a degree of personal autonomy over fundamental personal decisions intimately
affecting their private lives.
 Abortion fall within these protected decisions. It has profound psychological, economic
and social consequences for the pregnant woman.
 Probably impossible for a man to respond to dilemma because it is outside of personal
experience and he can only relate by eliminating the subjective elements of the female
psyche at heart of the dilemma.
 Since abortion is a right under s.7 then obviously s.251 violates this right.
o Right to security of the person
 Also compromised by asserting that the woman’s capacity to reproduce is not subject to her
own control.
 This doesn’t just go to liberty but to security because it makes women a passive
recipient of a decision made by others as to her body.

McIntyre (dissent)

- All laws have the potential to interfere with individual priorities and aspirations.
o It is only when a law goes beyond that that a court can intervene.
o The Charter is entirely silent on whether there is a right to abortion, whereas it specifically mentions
other rights (voting, religious freedoms, expression, mobility, language etc).
o It cannot be said that a right to abortion is justifies in the history/tradition/underlying philosophies of
Canadian society.
o There has always been a recognition of the rights of the unborn.
o Many other laws will cause stress and anxiety to many, but they are justified in govt’s pursuit of socially
desirable goal.
o Majority is wrong in presuming rather than establishing a constitutional right to abortion.
- Conclusion: to invade s.7 right of security of the person there has to be more than state-imposed stress or
strain.
o It would have to be based on infringement of an interest of such nature that warrants constitutional
protection.
o Abortion is not such an interest.

Note:
 - In 1990 a federal bill aimed at regulating abortion to cases of health/life at risk, with only one doctor making the
decision was defeated at the senate.
o The fed never passed another law to limit abortion.
- In Morgentaller (part ii) (1993) provincial laws regulating abortion were deemed ultra vires as the regulation of
abortion was deemed to fall under the crim law.

Rodriguez v BC (AG) (1993 SCC)

Facts:

- P terminally ill suffering from ALS, sought a declaration that she was entitled to have assistance in committing
suicide when, in her judgment, her condition became unbearable and she was unable to commit suicide without
assistance.
- Obstacle was s.241(b) of the CC which was a prohibition on assisted suicide with no exceptions.

Issue: Whether s.241(b) infringes s.7 in that it inhibits D to control the timing and manner of her death.

- NO: While it is a limitation on D’s security it is not contrary to the principles of fundamental justice. Same
conclusion on principles of fundamental justice would ensue if the law was found to infringe another s.7 right.
- D asserts her application is based on:
o The right to live her remaining live with the inherent dignity of a human person (liberty+security)
o The right to control what happens to her body while she is living (liberty+security)
o The right to be free from govt interference in making fundamental decisions (liberty)
- Life, Liberty and Security of the Person
o Court does not accept submission that P’s problems are due to physical disabilities caused by her illness
and not by govt actions. No doubt that the provisions contribute to P’s distress.
o However the security of the person cannot encompass a right to take action that will end one’s life as
security of the person is intrinsically concerned with the well being of the living person.
 Must consider liberty and security along with “the sanctity of life” which is one of the three
Charter values protected under s.7.
o Question of to what extent the sanctity of life includes notions of quality of life.
 Sanctity of life used in non-religious terms to refer to respect for the intrinsic value of human
life.
 No new consensus has been formed opposing the govt’s right to regulate the involvement of
others in exercising power over individuals ending their lives.
 Rejects argument that this is about controlling time of death where death is a certainty since
death is a certainty for all, this is about choosing death over life.
o After Morgentaler there is no question that s.7 “security of the person” is engaged when there is a limit
with respect to make choices concerning one’s own body, at least to the extent crim law interferes.
 So clearly s.7 security of the person is engaged here.
 Similar right engaged in the right to refuse medical treatment.
 Still have to do the Principles of Fundamental justice analysis.
- Principles of Fundamental Justice
o Not disputed that in general s.241(b) is a valid and desirable legislation which fulfils the govt’s objective
of preserving life and protecting the vulnerable.
o P argues that:
 The legislation is over-inclusive because it does not exclude those who are terminally ill,
mentally competent, but cannot commit suicide on their own.
 Also prohibition is arbitrary and unfair as committing suicide is not unlawful.
o The principles of fundamental justice are not mere common law rules, they have to principles for which
there is consensus that they are vital or fundamental to our societal notion of justice.
 Helpful to look at the common law and legislative history of the offence in question.
  Not enough to conclude that because Parliament/medical associations have never
expressed a view that assisted suicide should be decriminalized, the criminalization does
not offend principles of fundamental justice. Tech changes and this is circular.
 So must look not just at the practice itself but at the rationale behind it.
o While human dignity is an underlying principle upon which society is based, it is not a principle of
fundamental justice within s.7.
 This is because if it was then any violation on P’s security would go against the principles of
fundamental justice, so it would be logically equal to “security of the person”, which would
automatically make such infringements contrary to the principles of fundamental justice.
o The analysis of the principles of fundamental justice involves some balancing with the govt’s interests.
 Where the deprivation does nothing to enhance the govt’s interest then a breach of
fundamental justice will be made out, as the right is infringed for no valid purpose.
 For instance to say something is arbitrary requires that the govt interest be understood first.
 In the case of s.241(b) the goal is to protect the vulnerable, so in their moment of weakness they
don’t commit suicide. This is grounded not only on govt policy but on the principle of the
sanctity of life.
o The distinction between withdrawing treatment and assisted suicide has been criticized as a legal fiction.
 However one stands on the passive vs active debate, the doctor has no choice but to accept
patient’s instructions, as to continue treatment without consent would be battery.
 With euthanasia the doctor does have a choice.
o As for palliative care that arguably amounts to assisted suicide the difference is in intention.
 In one case the goal is to ease pain and in the other one to end life.
 While in practice the distinction is difficult to make, legally it is clear.
- Conclusion: Law is in accordance with the principles of fundamental justice, there is consensus that human life
must be respected and the SCC must be careful not to undermine that.
o It is similar to the ban on capital punishment since to permit a physician to lawfully participate in taking
life sends a message that the state approves of suicide.

McLachlin (Dissent)

- The denial of assisted suicide in the circumstances cannot be justified.

o The potential for abuse can be limited by the condition of judicial authorization or new laws.
o Not enough that Parliament didn’t address the issue nor that medically assisted suicide has not been
widely accepted elsewhere.
o The Charter call the Court to decide many issues which formerly law fallow. If a law offends the Charter,
this court has no choice but to so declare.
- The effect of the law is to deny some people the choice of ending their lives solely because they are physically
incapable.
o This deprives P of security of the person (ability to decide concerning her own body) in a way that
offends the principles of fundamental justice.
- Assuming that Parliament could criminalize all suicides, does the fact that suicide is not criminal make the
criminalization of all assisted suicides arbitrary?
o To be arbitrary it must bear no relation or be inconsistent with the objective of the law.
o What is the difference between suicide and assisted suicide that make one lawful and the other a crime?
 The answer depends on whether the denial to P of what is available to others can be justified.
 The argument that to legalize assisted suicide in her case would open floodgates should only
be considered under s.1 not s.7. > THIS LATER BECAME THE VIEW OF THE COURT.
 Leads to a focus on the individual violation, moving balancing to s.1.
  It is not in accord with the principles of fundamental justice that P be disallowed what is
available to others merely because it is possible that some people at some other time may
suffer, not what she seeks, but an act without consent.
- No difference between passive and active, if passive it is justified, so why wouldn’t active assisted suicide be?
- Sanctity of life/devaluing life argument rejected because people have different views on life and on what
devalues it.
o For some the choice to end one’s life with dignity is infinitely preferable to the inevitable pain and
diminishment of a slow decline.
- S.7 Conclusion:
o The effect of the distinction between suicide and assisted suicide is to prevent people like D from
exercising the autonomy over their bodies available to others, this is difficult to justify on grounds of
logic alone.
o It is arbitrary: “The objective that motivates the legislative scheme to treat suicide is not reflected in its
treatment of assisted suicide, therefore it violates the principles of fundamental justice.
- S.1
o Pressing and substantial purpose
 Objective cannot be:
 The prevention of suicide since suicide is decriminalized.
 The prevention of assisted suicide, since it is allowed in other cases (e.g. passive)
 Objective is to counter the fear that if people are allowed to assist other people in committing
suicide, this power will be abused.
 Can also be used to cover other crimes like murder or culpable homicide.
o Conclusion:
 Blanket prohibition not needed to prevent other crimes, there are other safeguards in place
(e.g. law against murder).
 Also not needed to ensure no one is assisted to commit suicide without proper consent.
Requiring a court order would be less impairing.
- On judicial activism:
o Court not trying to take the pulse of the nation to decide.
o The issue is not the objectives of parliament, but whether Parliament in taking action regulation this
area, has done so in a way which is fundamentally fair to all.
o So not about why the acted, but the way they acted.

Notes
- A number of cases since Morgentaler and Rodriguez explored the psychological dimensions of bodily integrity
for s.7 security of the person.
o New Brunswick (Min. of Health) v G(J) (1999 SCC): Constitutional right to legal aid where indigient
parents are facing a judicial order suspending their custody of their children under welfare legislation.
 Found that taking away parens patriae affected the security of the person as it was a serious
interference with the psychological integrity of the parent.
o Blencoe v BC (Human Rights Commission) (2000 SCC): Delay in hearing case of sexual harassment did not
seriously exacerbate the psychological harm P had by being accused. Not quite as psychologically
traumatizing as G(J).
- Since Morgentaler and Rodriguez, these cases have also extended s.7 beyond the crim law.

Carter v Canada AG (2015 SCC)

Facts:

- Challenge to the blanket prohibition on assisted suicide.

 o People who are grievously and irremediably ill cannot seek a physician's assistance in dying and may be
condemned to a life of severe and intolerable suffering.
o A person facing this prospect has two options: she can take her own life prematurely, often by violent or
dangerous means, or she can suffer until she dies from natural causes.
- TJ found that the prohibition violates the s.7 rights of competent adults who are suffering intolerably as a result
of a grievous and irremediable medical condition.
o Evidence supports TJ’s finding that a properly administered regulatory regime is capable of protecting
the vulnerable from abuse or error.
o She also found that the prohibition imposes a disproportionate burden on persons with physical
disabilities as only they are restricted to self-imposed starvation and dehydration in order to take their
own lives.

Issue: Whether the criminal prohibition that puts a person to this choice violates her Charter rights to life, liberty and
security of the person (s. 7)?

- Ratio: The prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such
assistance where:
o (1) the person affected clearly consents to the termination of life; and
o (2) the person has a grievous and irremediable medical condition (including an illness, disease or
disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his
or her condition.
- Stare Decisis:
o In Rodriguez the court found that the blanket prohibition did not violate s.7 and that if it violated s.15 it
could be saved under s.1 as "no halfway measure that could be relied upon with assurance".
o However Trial courts may reconsider settled rulings of higher courts in two situations:
 (1) where a new legal issue is raised; and
 The argument before the trial judge involved a different legal conception of s. 7 than
that prevailing when Rodriguez was decided.
 In particular, the law relating to the principles of overbreadth and gross
disproportionality had materially advanced since Rodriguez.
o In Rodriguez the SCC found the provision to be overinclusive, but it did not apply
the principle of overbreadth as it is currently understood. Instead the court
focused on arbitrariness and unfairness.
o By contrast, the law on overbreadth, now explicitly recognized as a principle of
fundamental justice, asks whether the law interferes with some conduct that
has no connection to the law’s objectives. (Bedford)
o This different question may lead to a different answer.
 (2) where there is a change in the circumstances or evidence that “fundamentally shifts the
parameters of the debate”
 The legislative landscape on the issue of physician-assisted death has changed in the
two decades since Rodriguez.
o In Rodriguez the court noted that no other Western democracy expressly
permitted assistance in dying. By 2010, however, eight jurisdictions permitted
some form of assisted dying.
- S.7: We conclude that the prohibition infringes the right to life, liberty and security of P and of persons in her
position, and that it does so in a manner that is overbroad and thus is not in accordance with the principles of
fundamental justice.
o Life:
  TJ found that the prohibition on physician-assisted dying had the effect of forcing some
individuals to take their own lives prematurely, for fear of not being able to do it later > this
finding is affirmed.
 Note that the s.7 right to life is still only limited to protection from the threat of death, any
concerns about the “quality of life” can be treated under liberty and security of the person.
 However, we do not agree that the existential formulation of the right to life requires an
absolute prohibition on assistance in dying, or that individuals cannot "waive" their right to life.
 It is a “right to life”, not a “duty to live”.
 s. 7 also encompasses life, liberty and security of the person during the passage to
death. It is for this reason that the sanctity of life "is no longer seen to require that all
human life be preserved at all costs".
o Liberty and Security of the Person
 While liberty and security of the person are distinct interests, for the purpose of this appeal they
may be considered together.
 Liberty protects "the right to make fundamental personal choices free from state
interference".
 Security of the person encompasses "a notion of personal autonomy involving ... control
over one's bodily integrity free from state interference"
o it is engaged by state interference with an individual's physical or psychological
integrity, including any state action that causes physical or serious psychological
suffering
 TJ’s findings (SCC agrees)
 TJ concluded that the prohibition on assisted dying limited P's s. 7 right to liberty and
security of the person, by interfering with "fundamentally important and personal
medical decision-making", imposing pain and psychological stress and depriving her of
control over her bodily integrity.
 TJ further noted that seriously and irremediably ill persons were "denied the
opportunity to make a choice that may be very important to their sense of dignity and
personal integrity" and that is "consistent with their lifelong values and that reflects
their life's experience"
o Principles of fundamental Justice:
 In determining whether the deprivation of life, liberty and security of the person is in
accordance with the principles of fundamental justice, courts are not concerned with competing
social interests or public benefits conferred by the impugned law. These competing moral claims
and broad societal benefits are more appropriately considered at the stage of justification under
s.1 of the Charter (Bedford)
 A claimant under s. 7 must show that the state has deprived them of their life, liberty or
security of the person and that the deprivation is not in accordance with the principles
of fundamental justice. They should not be tasked with also showing that these
principles are "not overridden by a valid state or communal interest in these
circumstances".
 The object of the prohibition was to protect vulnerable persons from being induced to commit
suicide at a time of weakness.
 Canada’s submission that the objective is broader, namely “the preservation of life” is
rejected.
 Court warned against stating the object of a law "too broadly" in the s. 1 analysis, lest
the resulting objective immunize the law from challenge under the Charter.
 Section 7 does not catalogue the principles of fundamental justice to which it refers. However
three central principles have been recognized:
  Arbitrariness
o An arbitrary law is one that is not capable of fulfilling its objectives.
o A total ban on assisted suicide clearly helps achieve the objective. Therefore,
individuals' rights are not limited arbitrarily.
 Overbroad
o Whether a law that takes away rights in a way that generally supports the object
of the law, goes too far by denying the rights of some individuals in a way that
bears no relation to the object.
 The question is not whether Parliament has chosen the least restrictive
means, but whether the chosen means infringe life, liberty or security of
the person in a way that has no connection with the mischief
contemplated by the legislature.
 The focus is not on broad social impacts, but on the impact of the
measure on the individuals whose life/liberty/security is trammelled
o We conclude that the prohibition on assisted dying is overbroad.
 Canada conceded at trial that the law catches people who are not
vulnerable to being induced to commit suicide.
 TJ found that Ms. Taylor was such a person.
 It follows that the limitation on their rights is in at least some cases not
connected to the objective of protecting vulnerable persons.
o Canada’s argument that everyone is potentially vulnerable so the affected group
cannot be determined is rejected.
 Grossly Disproportionality
o This principle is infringed if the impact of the restriction on the individual's life,
liberty or security of the person is grossly disproportionate to the object of the
measure.
 Focus is not on the impact of the measure on society or the public,
which are matters for s. 1, but on its impact on the rights of the
claimant.
 The inquiry into gross disproportionality compares the law's purpose,
"taken at face value", with its negative effects on the rights of the
claimant, and asks if this impact is completely out of sync with the
object of the law
 The standard is high, the law's object and its impact may be
incommensurate without reaching the standard for gross
disproportionality (Bedford)
 We find it unnecessary to decide whether the prohibition also violates
the principle against gross disproportionality, in light of our conclusion
that it is overbroad.
- S.1
o To deprive a person of constitutional rights arbitrarily or in a way that is overbroad or grossly
disproportionate diminishes that worth and dignity. If a law operates in this way, it asks the right
claimant to "serve as a scapegoat". It imposes a deprivation via a process that is "fundamentally unfair"
to the rights claimant.
o This is not to say that such a deprivation cannot be justified under s. 1 of the Charter.
 In some cases the government, for practical reasons, may only be able to meet an important
objective by means of a law that has some fundamental flaw.
 In cases such as this where the competing societal interests are themselves protected under the
Charter, a restriction on s. 7 rights may in the end be found to be proportionate to its objective.
 o Pressing and substantial objective
 P concedes this point, clearly protecting the vulnerable from being coerced into suicide is
pressing and substantial.
o Rational Connection
 Yes, where an activity poses certain risks, prohibition of the activity in question is a rational
method of curtailing the risks.
o Minimal Impairment
 "whether there are less harmful means of achieving the legislative goal".
 The burden is on the government to show the absence of less drastic means of achieving the
objective "in a real and substantial manner".
 In order to make the determination in this case expert/international evidence was heard.
 TJ found that a permissive regime with properly designed and administered safeguards was
capable of protecting vulnerable people from abuse and error.
 While there are risks, to be sure, a carefully designed and managed system is capable of
adequately addressing them.
 As to the risk to vulnerable populations (such as the elderly and disabled), the trial judge
found that there was no evidence from permissive jurisdictions that people with
disabilities are at heightened risk of accessing physician-assisted dying.
 A TJ’s findings on social and legislative facts are entitled to the same degree of deference as any
other factual findings.
 The trial judge found that Canada had not discharged this burden. The evidence, she
concluded, did not support the contention that a blanket prohibition was necessary in
order to substantially meet the government’s objectives.
 We agree. A theoretical or speculative fear cannot justify an absolute prohibition.
o Deleterious Effects and Salutary Benefits
 Not required after minimal impairment failed.
- Remedy:
o Exemption should not be the remedy.
 Issuing such an exemption would create uncertainty, undermine the rule of law, and usurp
Parliament’s role.
 Complex regulatory regimes are better created by Parliament than by the courts.
o Declaration of Invalidity:
 s. 241(b) and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted death
for a competent adult person who:
 (1) clearly consents to the termination of life; and
 (2) has a grievous and irremediable medical condition (including an illness, disease or
disability) that causes enduring suffering that is intolerable to the individual in the
circumstances of his or her condition.
o “Irremediable” does not require the patient to undertake treatments that are
not acceptable to the individual.
o Physicians’ freedom of conscience and religion
 Nothing in the declaration of invalidity which we propose to issue would compel physicians to
provide assistance in dying. The declaration simply renders the criminal prohibition invalid.
 What follows is in the hands of the physicians’ colleges, Parliament, and the provincial
legislatures.

Joe Arvay – The backstory of Carter

- The only thing the court could do was strike down the law, they don’t rewrite laws.
 o They had to find a half-way measure. To do this they needed to show the court that there was a viable
halfway measure for Parliament to fall back on.
o The lawyer’s job was to look at the “menu of choices” and propose a half-way measure to the court.
- The proposed half-way measure was limited to address the courts concern of abuse, slippery slope etc.
sometimes they didn’t argue for as much as they wanted, because this case was about setting the floor, the rest
was up to parliament.
o Therefore the proposed halfway measure involved physicians.
o Came up with the terms of limitation “grievous”, “intolerable” and “irremediable”.
 However subject to the treatment the patient was willing to take.
o Decided not to limit it to terminal conditions although most jurisdiction required this.
 After talking to British patient with locked-in syndrome.
o Decided to keep it only for adults.
 This decision wasn’t on principle, it was practical > they didn’t want to have one hurdle too
many.
o Decided to make it only for competent patients, so didn’t argue for advanced directive.
 However Joe wanted to include this, but didn’t do it again for practical reasons.
- They wanted the public supporting them, they were aware of how important it was to have public opinion on
their side.
o Aware of the fact that courts do not like to go beyond public opinion.
o For PR they needed a real person to bring the case and then Gloria Taylor joined their case.
- On horizontal stare decisis
o We are still in the embryonic stage of the constitution.
o To think that decisions like Rodriguez are infallible didn’t make any sense.
 There had been 20 years in between, several permissive jurisdictions.

S.7 and Decisional Autonomy

- While Morgentaler and Rodriguez applied s.7 to the integrity of the human body and not so much in terms of
decisional autonomy, other cases focus on personal autonomy and human dignity beyond bodily integrity and
criminal law.
- Godbout v Longueil (1997 SCC): Impugned law required all municipal employees to live in the municipality.
o Minority decided that s.7 goes beyond mere freedom from physical constraint and includes a narrow
sphere of personal autonomy wherein individuals may make inherently private choices free from state
interference.
 The right to choose the location of one’s home falls within this narrow sphere.
o However the majority decided the case on the basis of the Quebec Charter, not s.7.
- R v Jones (1986 SCC): Religious man charged with truancy after failing to send his kids to public school, he argued
ss. 2(a) and 7 gave him the right to determine how they’d be schooled and he choose to do it himself.
o Majority did not go into whether there was a violation of life, liberty and security; since they found any
restriction was in accordance with principles of fundamental justice.
o Wilson J, in minority, said the parents had the right to choose and it fell under s.7 liberty.

B. (R.) v Children’s Aid Society of Metropolitan Toronto (1995 SCC)

Facts:

- At issue an order pursuant to the Ontario Child Welfare Act granting a children’s aid society wardship of a child
born with severe medical problems.
- The wardship order was sought by the society to give the child a blood transfusion which the Jehovah’s
Witnesses parents opposed.
- Parents brought claim both under s.7 and s.2(a)
 - The s.7 claim was rejected with the SCC finding that although there was a violation of their liberty, it was in
accordance with the principles of fundamental justice.

Issue: Is there a s.7 violation of liberty?

- NO:
- Liberty does not mean unconstrained freedom. Liberty is subject to numerous constraints for the common good.
o Not all limitations will attract Charter scrutiny
- However liberty also means more than freedom from physical constraint, it includes personal autonomy to life
their life and to make decisions of fundamental personal importance.
o The right to nurture a child, care for its developments, and make decisions in fundamental matters such
as medical care are part of the liberty interest.
o But the parental right is not tantamount to a right of property in children. The state is actively involved
in area formerly thought to be private.
o The state can intervene where it is necessary to safeguard the child’s autonomy or health, this
intervention must be justified and conform to the values underlying the Charter.
 The state can properly intervene where parental conduct falls below the socially acceptable
threshold. By doing so it will limit the parents constitutional rights of parents rather then
vindicating the constitutional rights of children.

Notes:
- Blencoe v BC (2000 SCC): The sexual allegations case that affected the politician. Set out the relationship
between s.7 and decisional autonomy in these terms.
o Security of the person engaged where there is an interference in P’s right to make decisions that affect
their fundamental being.
o In this case it was confined to personal hardship, employability as a politician, but the state has not
interfered with P’s and his family’s ability to make essential life choices.
- Malmo-Levine: Challenge on the criminalization of marihuana possession.
o Availability of imprisonment for simple possession is sufficient to trigger s.7 scrutiny.
o However, marihuana possession is not a fundamentally or inherently personal that goes to the core of
individual dignity and independence.
o Even if P says it is very important to him, the constitution cannot be extended to afford protection to
whatever lifestyle someone deems fundamental.

S.7 and Social Citizenship

- Covers interests like social security, adequate food, housing, education and health care.
- Questions whether these type of rights should fall under s.7
- IN CLASS:
o Potential charter rights engaged by homelessness:
 S.9 detention:
 Because the individual has no house/car they don’t have places where they are
protected from search and seizure.
 S.7
 Life: more likely to get sick/die.
 Liberty: using public spaces
 Security: also about getting sick
 S.15:
 Multiple issues regarding being treated differently.
 S.3:
  Right to vote might be compromised by not having an address.

Gosselin v Quebec (2002 SCC)

Facts:

- Under Quebec’s social assistance scheme found in the Social Aid Act the base amount of money payable to
claimants under the age of 30 was 1/3 of that payable to those 30 and over.
o It could raise up to same amount but only through participation in training programs.
- This was changed in 1989 (until 1987 the distinction was protected by s.33).
- P brings a class action on behalf of all those who had been under 30 and affected by the old scheme until 1989.

Issue: Did the social assistance scheme violate s.7 of the Charter?

- NO: the factual record is insufficient to support this claim.

- P asserts that the s.7 right to security includes the right to receive a particular level of social assistance from the
state adequate to meet basic needs.
o Argues that govt deprived her of this right by providing inadequate welfare benefits in a manner that
violated the principles of fundamental justice. 3 elements:
 The legislation affects an interest protected by the right to life/liberty security.
 Providing inadequate benefits constitutes a deprivation by the state.
 That deprivation is not in accordance with the principles of fundamental justice.
- S.7 goes beyond the criminal law and is not necessarily limited to situations arising in an adjudicative context.
o By adjudicative context they mean in the context of administration of justice > e.g. Crim law in Carter.
 In this case they find it is not in an adjudicative context, this is more about policy and what the
law should be.
 COCHRAN: In this case they find it to be common sense that a required training program is
beneficial to society. They seem to just take judicial notice of that.
o Not necessary or desirable to state an exhaustive definition of s.7.
o Can it apply to rights/interests wholly unconnected to the admin of justice?
 SCC has left open the question of whether it can operate to protect “economic rights
fundamental to human survival”.
 Some cases while involving the admin of justice, have described the s.7 rights without explicitly
linking them to the admin of justice.
 While in some circumstances (considering the living tree) s.7 could apply to economic rights
(positive obligations), that is not the case here. > not enough evidence.

Arbour (dissent)

- YES: s.7 rights include a positive (rights) dimension. The scheme violates s.7 due to the lack of govt intervention
to protect the claimant’s s.7 right.
o Charter rights and freedoms find protection in s.1 not only because they are guaranteed in that section,
but because limitations on some rights are required by the positive protection to others.
o This approach to s.1 justification, which invokes the values that underpin the Charter as the only suitable
basis for limiting those rights, confirms that the Charter rights contain a positive dimension.
o Constitutional rights are not simply a shield against state interference with liberty; they place a positive
obligation on the state to arbitrate competing demands arising from the liberty and rights of others.
o If one’s s.7 rights can be justifiably limited under s.1 on the basis that there is a need to protect the
rights of others then their right is not merely a negative one against state interference but a positive one
to actively secure that right in the face of competing demands.
- Does the interest claimed in this case fall within the range of entitlements that the state is under a positive
obligation to provide?
 o Prima facie it appears obvious that it does since a minimum level of welfare is so closely connected to
issues relating to one’s basic health/survival that it appears inevitable that it would fall under s.7.
o The test for a claim of underinclusion outside of s.15 in from Dunmore
1. The claim must be grounded in an Appropriate Charter right
 Yes , it violates the right to security of the person.
 It falls under s.7 not under s.15 because the appellants have no other govt program to
meet their basic needs (E.g. food stamp program)
2. A sufficient evidentiary basis to establish that exclusion substantially interfered with the
fulfilment and exercise of the claimants fundamental right to security of the person:
 Yes, it is not about whether Ps had another way to meet their needs through private
means (work or charity).
 They only have to show that the lack of govt intervention substantially impeded the
enjoyment of their s.7 rights. > Claimants must show that govt intervention was
necessary in order to render their s.7 rights meaningful.
o The physical and psychological security of the person were compromised by
only allowing young adults $170 a month (e.g. no hot water > disease)
3. Must be determined that the state is to be held accountable for the claimants inability to
exercise their s.7 rights.
 Very difficult what more would be required on this point after point 2 is proved.
 It would be simple to show if it was caused by govt. intervention, but in the case of
positive rights it is more complex.
 No need to show that the govt is casually responsible for the socio economic
environment in which the s.7 rights were threatened.
 The focus is whether the state is under an obligation of performance to alleviate the
claimant’s condition and not whether the govt is responsible for causing it in the 1st
place.
- The modern welfare state has emerged as a response to the obvious failure of the free market economy to
provide basic needs for everyone. Where necessary the SCC could take judicial notice of this fact.
o Judicial notice not required here since the act itself explicitly sets out an objective of providing
supplemental aid to those who fall below a subsistence level.

Chaoulli v Quebec AG (2005 SCC)

Facts:

- P1 (patient) suffering from health problems found the waiting times in the public health system untenable.
- P2 (doctor) was unsuccessful in having his home-delivered medical activities recognized and in obtaining a
licence to operate an independent private hospital > due to statutory prohibition on private health insurance for
services available in the public system.
- Both challenge the validity of the prohibition contending that it deprived them of access to services without the
waiting times inherent in the public system.
- TJ found a deprivation of the right to life/liberty/security but found it to be in accordance with the principles of
fundamental justice.

Issue: Does the prohibition of private health care insurance violate s.7?

Deschamps (part of the majority, not using charter, but the very similar Quebec Charter)

- Not about whether Quebec has a right to discourage private insurance (they do), or that the Ps have a right to
private insurance, but the issue is that the waiting times violates right to liberty and security.
- Nothing in the Canada Health Act prohibiting private insurance, it leaves latitude to the provinces to decide. In
fact there are private services provided in different ways.
 - Infringement of life/security
o The risk of mortality increases monthly for some conditions which are subject to wait lists, therefore the
right to life is affected by delays which are the necessary result of waiting lists.
o Not enough to claim that patients could try to go out of province for private health care.
- Justification (s1):
o Framing the Objective:
 The purpose of the statute is to promote health of the highest quality regardless of the ability to
pay. So quality and equality of access are two inseparable objectives.
 Banning private insurance makes it so that the only option to public health care is to pay out of
pocket which is prohibitively expensive for most.
o Pressing and substantial:
 Yes it is meant to protect the public health care system.
o Minimal impairment:
 For each threat mentioned no study was produced, while scientific or empirical evidence is not
always necessary, in cases where the arguments are supposedly based on logic/common sense
the witnesses should be able to support their conclusions with facts.
 Participation in the plan is mandatory so there is no risk that the public will abandon the plan.
 Simple fear that the private plans may erode resources are not enough to meet the standard
which is on the Crown.
 Analyzing other jurisdictions shows that the measure is not necessary.
 Deference:
 A court must show deference where the evidence establishes that the govt ha assigned
proper weight to each of the competing interests.
 However in this case the court has all the necessary tools to evaluate the govt measure.
Ample evidence was presented.
 While the issue has been debated due the govt’s tendency to focus the debate on
sociopolitical philosophy it seems that the govts have lost sight of the urgency of the
urgency of taking concrete actions, the courts are the last line of defence for citizens.
 While the govt has the power to decide which measures to adopt it cannot choose to do
nothing in the face of a violation of the right to security.

McLachlin and Major (concurring)

- Ps do not seek an order that the govt spend more money on health care or that wait times be reduced.
- They only seek to be allowed private insurance because the public system places their health/security at risk.
- While the Canada Health Act, Health Insurance Act, and Hospital Insurance Act do not prohibit private heatlh
services they limit access by prohibiting private health insurance to cover the services provided by the public
system.
o This creates a monopoly which results in delays that adversely affect the citizen’s security of the person.
- The legal question is not about 1-tier vs 2-tier system, but rather “is it a violation of s.7 to prohibit private
insurance where the result subjects Canadians to long delays with resultant risk of physical and psychological
harm.”
- S.7 :
o Life and Security of the person
 Agrees with Deschamps J that there are physical and psychological consequences of waiting
times on patients.
 Given that prohibiting health insurance where the govt is failing to deliver health care in a
reasonable manner increases the risks of complications and death, this prohibition interferes s.7
rights
o Deprivation in Accordance with the Principles of fundamental justice
  Arbitrariness
 Arbitrary: it is arbitrary, it bears no relation to or is inconsistent with the objective that
lies behind it.
o Not only a theoretical connection but a real connection on the facts.
o The experience of other “western democracies” is relevant and it shows that
prohibiting private insurance is unnecessary to maintain an effective public
system.
- S.1:
o Test not met, questionable whether any s.7 violation found to be arbitrary could meet the rational
connection objective.
o Also minimum impairment and balancing test would not be met.

Binnie and Lebel (Dissent)

- The question is whether Quebec not only has a constitutional authority to establish a comprehensive single-tier
health plan, but to discourage a second (private) health sector.
- This type of debate cannot and should not be resolved as a matter of law by judges.
- A legislative policy is not arbitrary just because we may disagree with it. Govts are entitled to act on a
reasonable apprehension of risk of damage.
o While not all provinces ban private insurance, all of them (Except NF) take measures to discourage it
(E.g. forcing them to charge the same as the public service)
o Private health insurance is a condition precedent to, and aims at promoting a flourishing parallel private
health sector.
- S. 7 application to matters not falling within the admin of justice
o In this case there is only a civil prohibition against the making or renewing of insurance K for publicly
insured services. While there are small fines it does not make this act adjudicative context required to
ground the application of s.7
o Only in rare cases will s.7 apply to circumstances entirely unrelated to adjudicative or administrative
proceedings.
- Which s.7 interest is engaged?
o Accept TJ’s view that it some cases life or security of the person will be put at risk by the law.
o Liberty not at risk:
 it does not include freedom of K. (ala Lochner)
 no right to spend money
 no liberty to deliver health care in a private context, nor right to exercise one’s chosen
profession (e.g. prostitution)
- Principles of fundamental justice:
o The aim of “health care to a reasonable standard within reasonable time” is not a legal principle.
o Arbitrariness:
 Not met here, the test should not be whether the measure is “unnecessary” to meet the
objective, but whether it is “inconsistent or bears no relation” with it > meaning it must logically
contradict the objective or be unrelated in principle and practicality.
 Rejects the expansion to “unnecessary” by the majority.
 Law is not arbitrary, evidence shows that a parallel private system could have a negative impact,
so it is not arbitrary to discourage it.

Tanudjaja v. Canada (Attorney General), 2014 ONCA

Facts:

- The appellants allege that actions and inaction on the part of Canada and Ontario have resulted in homelessness
and inadequate housing.
 - They argue that the governments have taken an approach that violates their s. 7 and s. 15 rights under the
Charter
- P argues that:
o Canada and Ontario have instituted changes to legislation, policies, programs and services which have
resulted in homelessness and inadequate housing.
o Canada and Ontario have either taken no measures, and/or have taken inadequate measures, to
address the impact of these changes on groups most vulnerable to, and at risk of, becoming homeless.
- Not challenging any specific law rather they seek a declaration that the social conditions created by the overall
approach of the federal and provincial governments violate their rights to adequate housing.
o They point at different policies that they say have made the problem worse.
- Motion judge struck down the action on the basis that it disclosed no reasonable cause of action and was not
justiciable.
o Concluded that there was no positive Charter obligation which required Canada and Ontario to provide
for “affordable, adequate, accessible housing” and that in any event, the appellants had not identified
any breach of the principles of fundamental justice.
- P is appealing the motion to strike by TJ, so the test for the CA is whether even if the facts were all assumed to
be true, there would still be no cause of action > so whether it is justiciable (something the court can decide on)

Issue: Is there a reasonable cause of action?

- NO, this application is not justiciable.

o In essence, the application asserts that Canada and Ontario have given insufficient priority to issues of
homelessness and inadequate housing.
- Different from PHS and Chaoulli.
o PHS: “When a policy is translated into law or state action, those laws and actions are subject to scrutiny
under the Charter”.
 Here no specific state action is challenged.
o Chaoulli: Here no specific law is challenged. It is just a general allegation.
- This is not to say that constitutional violations caused by a network of government programs can never be
addressed, particularly when the issue may otherwise be evasive of review. > However this is not a case for that:
o Here the claimants assert s.7 freestanding right to housing which is dubious in light of Chaoulli saying
there was no freestanding right to health care.
o Moreover, the diffuse and broad nature of the claims here does not permit an analysis under s. 1 of the
Charter.
o Finally, there is no judicially discoverable and manageable standard for assessing in general whether
housing policy is adequate or whether insufficient priority has been given in general to the needs of the
homeless.
 Issues of broad economic policy and priorities are unsuited to judicial review.
 The court is not asked to engage in a “court like” function but rather to embark on a course
more resembling a public inquiry into the adequacy of housing policy.
 Were the court to confine its remedy to a bare declaration that a government was required to
develop a housing policy, that would be so devoid of content as to be effectively meaningless.

Section 2(a): Freedom of religion and accommodation of religious practice

- Fundamental freedoms
o 2. Everyone has the following fundamental freedoms:
 (a) freedom of conscience and religion;
 (b) freedom of thought, belief, opinion and expression, including freedom of the press and other
media of communication;
 (c) freedom of peaceful assembly; and
  (d) freedom of association.
- S. 2(a): “Everyone has the following fundamental freedoms … freedom of conscience and religion”.
o Conscience includes more than theocentric practices and beliefs, for example non-theistic systems of
belief and morality.
- S. 15: the state cannot discriminate inter alia on the basis of religion.
- S. 27: mandates charter interpretation “consistent with the multicultural heritage of Canadians”.
- Two basic ideas of religious freedom:
o The state cannot impose the state’s preferred religion on individuals or groups.
 E.g. the establishment of a state religion, the public estate celebration of certain religious
holidays, prayer at state functions.
 Separation of state and religion is not always necessary for religious freedom, consider England
where the Anglican Church is the established church but there is still freedom of religion.
o The state cannot interfere with religious practice:
 Concept called protection of the “free exercise” of religion.
 Questions arise about non-religion (e.g. can the state privilege religion over non-religion, do
religion based claims have a higher constitutional status than non-religion based claims).
- Freedom of religion might have a priority over other rights as it is seen as fundamental and sort of arising from
natural law/human rights.
- Courts are unwilling to focus on the legitimacy of the religious belief, but they will look at the sincerity.
o So in a sense it is personal, no one in “your faith” has to agree with your belief, but you have to sincerely
believe in it.
o Acknowledgement by the SCC that the person has a competing law (coming from religion) that might be
in conflict with Canadian Law.

R v Big M Drug Mart (1985 SCC) first s.2 case

Facts:

- The federal Lord Day’s Act did not allow working or carrying on the sale of goods on Sundays.
o It imposed heavy sanctions for non-compliance.
o Jurisdictional implications put the Fed in a lose-lose situation.
 If they said it was under the federal head of crim law with its jurisdiction to protect morality it
would probably fail under s.2
 If they say it is meant to provide a unified day of rest then it would be ultra vires because it
would be under the provincial head under s.92(12) property and civil rights
- D charged with selling goods on a Sunday. Challenges the law under s.2
- No question that the federal state has jurisdiction over freedom of religion, this is simply a case of Charter
rights.

Issue: Does the Lord Day’s Act violate s.2 freedom of religion?

- YES
- Two ways to characterize the purpose of the law:
o Religious:
 Meant to secure public observance of the Sabbath.
o Secular:
 Meant to ensure that there is a uniform day of rest from labour.
- The secular characterization is not possible given the historic characterization of the Act and the fact that the AG
of AB concedes that the act has a religious purpose.
- However the AB AG says it is not the purpose, but the effect of the Act which the Court should focus on.
 Court disagrees, both purpose and effects are relevant to determine constitutionality.
- If the purpose of the law offends freedom of religion it is unnecessary to consider the effects of Sunday closing
upon religious freedom.
o Only get to effects if the purpose analysis is passed.
- The purpose of the law does not change over time, although the effect might become more secular.
o Therefore if the purpose of the law was to ensure observance to the Sabbath in 1677, that is still the
purpose today.
o There is a concern with allowing shifting purposes since it may result colourability, potential re-litigation,
issues with stare decisis.
- History of freedom of religion:
o Recognition that this right came to Canada in the context of the Protestant reformation and was meant
to prevent violence against the different denominations.
o What was and is important is the protection of individual conscience.
- Freedom of religion:
o It includes:
 The right to entertain such religious beliefs as a person chooses.
 The right to declare religious beliefs openly and without fear of hindrance of reprisal.
 The right to manifest religious belief by worship and practice or by teaching a dissemination.
o It is also meant to keep people free of coercion or compulsion.
 This Act in binding all to a sectarian Christian ideal, works a form of coercion inimical to the spirit
of the Charter and the dignity of all non-Christian.
 It creates a climate hostile to, and gives the appearance of discrimination against non-
Christian Canadians.
 Non-Christians are prohibited for religious reasons from carrying out otherwise lawful,
moral, and normal activities.
 Parliament does not have the right to compel universal observance of the day of rest
preferred by one religion. This is contrary to multi-culturalism in s.27.
 Someone from another religion has the right to work on Sundays (at least an implied
right), by denying that right this law infringes religious freedom.
o However this is harder to prove since it is non-action rather than action that is
being decreed.
- S.1: is the s.2(a) violation justified?
o Where there is an unconstitutional purpose, s.1 test is (almost) impossible to meet.
o Two reasons advanced (and rejected):
 Choosing the day preferred by the Christians (majority) to rest is the most practical choice.
 This argument rest solely on convenience and it is repugnant because it would justify
the law upon the very basis upon which it is attacked for violating s.2(a)
 Everyone accepts the need and value of a universal day of rest from work:
 Court accepts the secular justification of a day of rest.
 However this was not the purpose of the law, and Parliament cannot rely upon an ultra
vires purpose for a s.1 justification.
 To alter the purpose in the s.1 analysis would invite colourability.
 Besides if the purpose was not religious, but merely enforcing a day of rest from labour,
the act would fall under s.92(12) property and civil rights which is provincial
competence.
- Note:
o This case is not about whether a corporation has religious freedom.
o It is about whether any accused (corporate or individual) can defend against a crim charge by arguing
that the law under which the charge is brought is constitutionally invalid.
Edward Books
- Similar law as Big M but at the provincial level and with the purpose of having a unified day of rest.
- It found a s.2(a) violation since some groups were being discriminated.
- However it was found to be justified under s.1.
o A bit of analysis to the fact that everyone would have a cost regardless of the day selected.
o Sunday seen as the day imposing the least cost on most of society.
- This case is still cited as a case for giving deference to govt policies.

R. v. N.S. (2012 SCC)

Facts:

- Sincerely held religious belief requires D to wear a niqab that covers her face, except for her eyes, while
testifying in a criminal proceeding.
- D was a victim in a sexual harassment case and wanted to wear her niqab. She admitting to taking it off in public
for a driver’s licence picture and at airports.
- TJ concluded that D's religious belief was "not that strong" and ordered her to remove her niqab.
- Went up to Court of Appeal who said that a TJ faced with a request to testify wearing a niqab should determine
whether the request was the result of a sincere religious belief, and if so, whether it impinged on the accused's
fair trial rights. > Sent it back to the judge
- D appeals.

Issue:

- One response is to say she must always remove her niqab on the ground that the courtroom is a neutral space
where religion has no place.
o This fully secular response is inconsistent with charter values.
- Another response is to say the justice system should respect the witness's freedom of religion and always permit
her to testify with the niqab on.
o This may render a trial unfair and lead to wrongful conviction.
- In my view, both of these extremes must be rejected in favour of a third option: allowing the witness to testify
with her face covered unless this unjustifiably impinges on the accused's fair trial rights.
o The long-standing practice in Canadian courts is to respect and accommodate the religious convictions
of witnesses, unless they pose a significant or serious risk to a fair trial.
- Analysis:
1. Would requiring the witness to remove the niqab while testifying interfere with her religious freedom?
 TJ erred by focusing on the “strength of the belief”, it is not about strength but sincerity.
 While the strength of a claimant's religious belief may be relevant in balancing it against the
accused's fair trial rights (part 4), the belief need only be sincere in order for it to receive
protection.
 Departures from the practice in the past should also be viewed in context, they are not
necessarily decisive.
2. Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?
 Crown raises issues regarding cross examination but provides no evidence.
 P had scientific evidence that looking at faces did not improve the ability to tell whether
someone was lying.
 But the evidence was not subject to cross examination so it wasn’t technically expert
evidence and not fully considered.
 However, the common law, supported by provisions of the Criminal Code, R.S.C. 1985, c. C-46,
and judicial pronouncements, proceeds on the basis that the ability to see a witness's face is an
important feature of a fair trial. > consideration particularly in cross examination.
  I conclude that there is a strong connection between the ability to see the face of a witness and
a fair trial.
 Its importance is too deeply rooted in our criminal justice system to be set aside absent
compelling evidence.
3. Is there a way to accommodate both rights and avoid the conflict between them?
 Once a judge is satisfied that both sets of competing interests are actually engaged on the facts,
he or she must try to resolve the claims in a way that will preserve both rights.
 On the facts of this case, it may be that no accommodation is possible.
 However, when this case is reheard, the preliminary inquiry judge must consider the possibility
of accommodation based on the evidence presented by the parties.
4. If no accommodation is possible, do the salutary effects of requiring the witness to remove the niqab
outweigh the deleterious effects of doing so?
 This is a proportionality inquiry, akin to the final part of the test in R. v. Oakes.
 At this point the strength of the religious belief becomes relevant, think about Hutterian
Brethen.
 Deleterious effects:
 The harm that would be done by limiting the sincerely held religious practice.
 It is difficult to measure the value of adherence to religious conviction, or the injury
caused by being required to depart from it.
 The value of adherence does not depend on whether a religious practice is a voluntary
expression of faith or a mandatory obligation under religious doctrine.
 However, certain considerations may be helpful:
o How important is the practice to the claimant?
o What is the degree of state interference with the religious practice
o How does the actual situation in the courtroom -- the people present and any
measures that can be put in place to limit facial exposure -- affect the harm to
the claimant of limiting her religious practice?
o Consider the broader societal harms of requiring a witness to remove the
niqab in order to testify.
 If women are required to take their niqab off to testify they may be less
willing to testify.
 Salutary effects:
 Preventing harm to the fair trial interest of the accused and safeguarding the repute of
the administration of justice. > Central to our criminal justice system.
 An important consideration will be the extent to which effective cross-examination and
credibility assessment on this witness's testimony is central to the case.
 The nature of the proceeding may also be a relevant factor. (weight of the evidence
given, jury vs judge, cross-examination, whether credibility is at stake)
 Where the liberty of the accused is at stake, the witness's evidence is central to the case
and her credibility vital, the possibility of a wrongful conviction must weigh heavily in
the balance, favouring removal of the niqab.
- The Canadian approach in the last 60 years to potential conflicts between freedom of religion and other values
has been to respect the individual's religious belief and accommodate it if at all possible.
o Employers have been required to adapt workplace practices to accommodate employees' religious
beliefs...
o Schools, cities, legislatures and other institutions have followed the same path
- Therefore an approach that would never allow a witness to testify while wearing a religious facial covering does
not comport with the fundamental premise underlying the Charter that rights should be limited only to the
extent that the limits are shown to be justifiable.
 - Conclusion:
o A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal
proceeding will be required to remove it if:
 requiring the witness to remove the niqab is necessary to prevent a serious risk to the fairness
of the trial, because reasonably available alternative measures will not prevent the risk; and
 the salutary effects of requiring her to remove the niqab, including the effects on trial fairness,
outweigh the deleterious effects of doing so, including the effects on freedom of religion.

Abella (dissent)

- The majority overstates the impact of not seeing the face in examination, they overrate the importance of
seeing a face in credibility.
- The question is: Whether the impact of not having full access to the usual "demeanour assessment package" can
be said to so materially harm trial fairness that the religious right must yield. In my view, with very limited
exceptions, the harm to a complainant of requiring her to remove her niqab while testifying will generally
outweigh any harm to trial fairness.
- Probing inquiry into the claimant's sincerity of belief is unwarranted.
o It is unclear what sort of evidence a court would actually require in order for the claimant to establish a
sincerity of religious practice
o Rigorous focus on a claimant's past religious practice to determine whether his or her current beliefs are
sincerely held is largely inconclusive.
o Also inconclusive are the beliefs of co-religionists given the spectrum of beliefs and practices even
within the same religion.
o It strikes me as manifestly unrealistic to assume that a witness would insincerely wear the niqab in an
effort to gain some sort of testimonial advantage.
- I disagree with the majority that the "strength" of a witness' belief, while not relevant in assessing the witness'
prima facie religious claim, is nonetheless somehow relevant when balancing that claim against trial fairness.
o Such an approach, in my respectful view, risks re-entering into inappropriate inquiries into a claimant's
past practices, or into the extent to which a claimant's practices follow a religion's orthodox traditions.
- Consider the potential effect of forcing a witness to choose between her religious beliefs and her ability to
participate in the justice system. > particularly unwanted in a case of sexual assault.

Mouvement Laique Quebecois v Saguenay (2015 SCC)

- At public meetings of the municipal council of the City of Saguenay, it was the practice of the mayor to begin
each meeting by reciting a prayer which was prefaced by the sign of the cross and the words “in the name of the
Father, the Son and the Holy Spirit”.
- This made P who was interested in politics and regularly attended the meetings uncomfortable since he was an
atheist.
- P asked the mayor to stop the practice. The major refused and P began proceedings that eventually found their
way to the Quebec Human Rights Tribunal.
- In the interim, the city of Saguenay adopted a by-law regulating the prayer, allowing the mayor to continue the
recitation as before, with minor changes.
- This by-laws as well as the prayer were brought to trial and the Human Rights Tribunal filed for P.
- The QBCA reversed finding that the prayer was universal and could not be associated with any religion,
therefore it did not breach the state’s duty of neutrality.

Issue: Are the prayer/bylaws a violation of s.2(a)?

- Definition of freedom of religion:

o freedom of conscience and religion protects the right to:
  entertain beliefs,
 to declare them openly and to manifest them,
 while at the same time guaranteeing that no person can be compelled to adhere directly or
indirectly to a particular religion or to act in a manner contrary to his or her beliefs.
- Because of the similarity between s. 3 of the Quebec Charter and s. 2 of the Canadian Charter, it is well
established that s. 3 should be interpreted in light of the principles that have been developed in relation to the
application of the Canadian Charter.
o These protections are not limited to religious beliefs. The freedom not to believe, to manifest one’s
non-belief and to refuse to participate in religious observance is also protected.
o For the purposes of the protections afforded by the charters, the concepts of “belief” and “religion”
encompass non-belief, atheism and agnosticism.
- State Neutrality:
o Neither the Quebec Charter nor the Canadian Charter expressly imposes a duty of religious neutrality
on the state. This duty results from an evolving interpretation of freedom of conscience and religion.
 Sort of a natural freedom.
o The concept of neutrality allows churches and their members to play an important role in the public
space where societal debates take place, while the state acts as an essentially neutral intermediary in
relations between the various denominations and between those denominations and civil society.
 Cochran: Note that the Court emphasizes state neutrality, not secularism (interpreted as
absence of religion) as some European countries do.
 This neutrality requires that the state neither favour nor hinder any particular belief, and the
same holds true for non-belief.
 It requires that the state abstain from taking any position and thus avoid adhering to a particular
belief.
 I note that a neutral public space does not mean the homogenization of private players
in that space. Neutrality is required of institutions and the state, not individuals.
 The reasons are promoting diversity/multiculturalism but also democracy, that
everyone can participate in the democratic process regardless of their religious belief.
o The Tribunal was therefore correct in holding that the state’s duty of neutrality means that a state
authority cannot make use of its powers to promote or impose a religious belief.
 What is in issue here is not complete secularity, but true neutrality on the state’s part and the
discrimination that results from a violation of that neutrality.
 State neutrality means that the state must neither encourage nor discourage any form of
religious conviction whatsoever.
 If the state adheres to a form of religious expression under the guise of cultural or historical
reality or heritage, it breaches its duty of neutrality.
 If that religious expression also creates a distinction, exclusion or preference that has the effect
of nullifying or impairing the right to full and equal recognition and exercise of freedom of
conscience and religion, there is discrimination.
- Interference by the State with Freedom of Conscience and Religion:
o The alleged breach of the duty of neutrality must be established by proving:
 that the state is professing, adopting or favouring one belief to the exclusion of all others and
 that the exclusion has resulted in interference with the complainant’s freedom of conscience
and religion
o Test for determining whether freedom of conscience and religion has been infringed (causing
discrimination):
 (1) Be satisfied that the complainant’s belief is sincere, and
 (2) Find that the complainant’s ability to act in accordance with his or her beliefs has been
interfered with in a manner that is more than trivial or insubstantial.
 o However, it must be recognized that the Canadian cultural landscape includes many traditional and
heritage practices that are religious in nature.
 Although it is clear that not all of these cultural expressions are in breach of the state’s duty of
neutrality,
 there is also no doubt that the state may not consciously make a profession of faith or act so as
to adopt or favour one religious view at the expense of all others.
 Thus, it is essential to review the circumstances carefully.
 If they reveal an intention to profess, adopt or favour one belief to the exclusion of all
others, and if the practice at issue interferes with the freedom of conscience and
religion of one or more individuals, it must be concluded that the state has breached its
duty of religious neutrality.
 This is true regardless of whether the practice has a traditional character
- Application to the Facts:
o I find that it was reasonable for the Tribunal to conclude that the City’s prayer is in fact a practice of a
religious nature.
o The Alleged Discrimination:
 Exclusion Based on Religion:
 The tribunal’s finding that the behaviour was discriminatory cannot be reversed unless it
is unreasonable, and it is not unreasonable on the evidence here.
 The impairment of P’s rights:
 P was atheist and the breach of state neutrality in combination with the circumstances
made the meetings a preferential space for theistic people.
 Although non-believers could also participate, the price for doing so was isolation,
exclusion and stigmatization.
 This impaired Mr. Simoneau’s right to exercise his freedom of conscience and religion.
o The finding of fact by the tribunal that the impairment was not
trivial/insubstantial should stand.
o The fact that he could just leave the room while they were praying is not
enough. If anything him having to leave the room made it worse.
- About that reference in the Charter’s Preamble:
o It is a reference to the political theory on which the Charter protections are based.
o It cannot lead to an interpretation of freedom of conscience and religion that authorizes the state to
consciously profess a theistic faith.
o Also the express provisions of the Canadian Charter, such as those regarding freedom of conscience and
religion, must be given a generous and expansive interpretation.
o Thus, the reference to God in the preamble cannot be relied on to reduce the scope of a guarantee that
is expressly provided for in the charters.
- Note about standard of review:
o Standard of correctness: High standard, did the TJ get it right? > applies to issues of law.
o Standard of palpable and overriding error: applies for factual findings.

Final
- Similar to previous final, slightly longer timeframe.
- Essay assignment due at the same time, but use midterm codename for essay and final codename for final.
- Somewhere between 8-10 pages.
- Most questions from hypothetical, maybe no essay this time since we had the assignment.
- Issues to keep in mind.
- It will be emailed to us, not on coursespaces @ 6pm on April 5th. The deadline is a little bit later now.
Review Session
- S.35:
o Canada’s indigenous constitution:
 The constitution as reconciling/bridging indigenous law and imperial law.
 The sources of indigenous law.
o Aboriginal rights
 Common law foundations > early jurisprudence (e.g. Connolly case)
 Guerin: Source of Ab rights in historic occupation > something unique about ab rights.
 Entrenchment in s.35
 35.1: What does “existing” mean
 Sparrow: Ab rights as changing over time (not frozen) + existing means not extinguished.
o Extinguished needs to be in clear terms prior to 1982.
 Van der Peet: What is an Ab right? If it is integral to the distinctive culture of the ab
group claiming that right.
o General approach to s.35: interpreted in light of underlying purpose which is
reconciliation?
o Ab title:
 Tsilhqot’in: 3 stage test: sufficiency, continuity and exclusivity.
 Cognizable to common law but not totally dissolved by the common law
 Definition of aboriginal title: used, take benefit and proactively manage the land.
 Instructions about division of power in questions about ab rights. > should be used
through s.35 not interjurisdictional immunity.
o Ab Treaties:
 A promise interpreted in a manner consisted with the honour of the crown
 Marshall: Treaties construed liberally and in favour of ab peoples.
o Duty to consult/accommodate:
 Haida Nation: Jurisprudence developed in part because negotiations on ab title/rights are
difficult and in the interim infringements can take place. > so what are the rules for those
interim infringements.
 Impact on things like environmental assessment.
 Pipeline example: How indigenous legal orders can be a useful additional framework.
o Ab people developing their own approach the assessment of pipeline.
- Charter of rights:
o Value of entrenchment:
 Should it be entrenched? If yes, what should be on it? Impact on democracy? Do courts help or
is it preferable to achieve change through democracy.
 Charter as a source of national unification:
 Questioning the value of judicial review.
 Dialogue theory – justice Brown
 Legislative responses to court declarations.
 Often cited by SCC before giving remedy.
o Remedies s.52:
 Power to strike down laws inconsistent with constitution.
 Declare invalid (with or w/o suspension)
 Read down
 Read in
 Considerations in Shakter case.
o Remedies s.24(1)
  Less used, but sort of equitable like section with injunctive relief, damages etc.
o Standing
 SWAV case and public interest standing (gives the test for public interest standing).
 Serious or substantial issue, whether the proposed P is engaged in some way, whether
the proposed litigation is a good? way to bring the cause.
o S.1: Both the guarantee and the limitation of the charter
 Reasonable limits prescribed by law as can be demonstrably justified
 Burden of govt to show
o Pressing and substantial objective
o Proportionality (Oakes and Wilson Colony) > questions of evidence here.
o S.15: Substantive equality embraced > focus on effects of laws in addition to purposes.
 Comparative concept (think groups and grounds)
 Andrews: purpose and test advocating for contextual approach.
 Shepherd piece: different tests and changes in history > distinction and substantive
discrimination
 Quebec v A:
 Distinction based on enumerated/analogous ground
 Perpetuate disadvantage
o Debate on whether it requires stereotyping > still not fully solved. Look at Kapp.
 Kahkewistahaw: S.15 and questions of evidence.
o S.7: Life liberty and security of the person and not to be deprived of except in accordance with principles
of fundamental justice:
 Life: interpreted in a fairly narrow case (although in Chaoulli it includes risk)
 Liberty: Clear in criminal but more difficult in personal decisions (still might be captured)
 Security of the person: Most litigated interest, physical and psychological (Carter) infringements
 Fundamental justice:
 Principles understood to be found in our legal system
 Settled on 3: Arbitrariness (debated in Chaoulli), Overbreadth, gross disproportionality.
 Potential applicability to economic rights.
o S.2(A) Freedom of religion
 Collective vs individual: example of state neutrality.
 Test is Saguenay p.86 and Wilson Colony for s.1 relevant to freedom of religion
 NS: Framework for dealing with religion when it seems like rights are in conflict
 Access to justice and balancing law with freedom of religion.
o Homelessness:
 Pivot talk
 Positive rights? Is the distinction justified.

Practice Question:
s.15:

- Standing? > don’t give this a ton of weight since the question is about s.15 but it might be worth mentioning
- This is not expressly discriminatory but it is discrimination based on effect particularly against the homeless.
o Eldridge and Andrews as focusing on effect,
- Andrews test:
o Distinction based on analogous grounds.
 Defining the group and consider that it might be more nuanced that just homeless people,
justified by taking a purposive approach to s.15 reduce disadvantage and promote human
dignity.
 Distinction: the key issue here is not requiring an ID but requiring an address.
  Impact of the law would be to not let homeless people vote as they do not have an
address.
 Analogous grounds: Can homelessness be an analogous ground
 Andrews: Draw connections to social reality.
o Discriminatory in a substantive says:
 Abella in Quebec v A: Perpetuating disadvantage and widening the gap.
 Is it substantially discriminatory to required an ID?
o Argument about political voice.
 To the extent that stereotyping is still relevant would this law stereotype.
 Shepherd and prioritizing process.

s.1:

- Prescribed by law? Nova Scotia Pharmaceutical?

- Demonstrably justified?
- Proportionality:
o Reasonably connected (probably yes, not a high standard): voting is highly valued, but note that this will
play against the law in proportionality.
 Define the objective of the law
 Narrower purpose is to prevent voter fraud.
 Broader is to preserve the integrity of the voting system.
 Be rigorous while recognizing that the court is not meant to make policy decisions.
 Wilson Colony degree of harm not considered here, only at the last stage.
o Minimum Impairment:
 The fact that they allow for a number of different IDs not just passport vs licence.
 Campaigns to get people ID.
 Wilson Colony: not necessarily least impairing, but falling within reasonable options.
 Consider less impairing alternatives (but don’t dwell to long on this). Usually raised by claimant.
o Proportionality of the effects:
 Deleterious effects:
 Salutory effects:
 Does the state have to provide evidence? (Look at Wilson Colony)
o This could be pretty hard to meet.