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CONSTITUTIONAL LAW 1) Sources and Nature of the Constitution a. Constitutional Act 1867 i. British North American Act 1867(changed in 82 to Constitutional Act 1867) ii. No amending clause in this act iii. No mention or system of responsible government ( the prime minster, the cabinet)

b. Constitutional Act 1982 (enacted through 1982 Canada Act)i. domestic amending formula was adopted ii. authority over Canada of the UK Parliament was terminated 1. Canada Act 1982-a short statue of the UK Parliament which terminated the authority over Canada. iii. Part 7 General 1. The Supremacy Clause is 52(1)-This makes it the supreme law of the country. 2. The Entrenchment clause- 52(3)- This entrenched the Constitutions Act 1982 and makes it only amendable by the proscribed procedure.

c. Constitution of Canada includes defined for first time in 1982 Const Act (s52): 1. The Canada Act 1982, including this Act (includes the Constitution Act 1982 Schedule B) 2. the Acts and orders referred to in the schedule - list of 30 Acts and orders (includes The Constitution Act 1867, itsamendments, the orders in council and statues admitting or creating new provinces and boundaries, and the statue of Westminster. (a) Statute of Westminister conferred on Canada power to repeal or amend imperial statutes applying to Canada, but BNA Act excluded at Canadas insistence (so Const wd be more difficult to amend) any amendments to any Act or order referred to in paragraph (a) or (b) Includes in s 52(2) indicates that the word is not exhaustive.

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(a) Other unwritten principles underlie text of Const Act (i) Secession Reference [1998]- 4 unwritten principles of Const- democracy, federalism, constitutionalism,protection of minorities. B/c of democracy, federalism - fed govt and other provinces would be under duty to enter negotiations 1. Reference by the federal government to the Supreme Court of Canada, in which the Court was asked whether Quebec could secede unilaterally from Canada. Unilateral secession not possible -- Secession would require constl amendmt in accordance with its procedures (but did not specify which one would apply). a. SCC also stated: a clear majority on a clear question of law put to referendum in Quebec, would confer legitimacy on demands for secession and give rise to an obligation on all parties to Confederation to negotiate the required constitl changes. SCC also pointed out that the political ramifications for failure to negotiate in good faith would include the defaulting govts legitimacy in the eyes of the international community would be undermined. ... b. Principle of Effectivity: If seceding govt achieved effective control of a territory and recognition by international commty the secession although unconstitutional would have to be recognized eventually as a reality by Canadas own Constl Law. 2. Clarity Act ( created after Succession Reference) Hogg 5.7(a) a. Defines clear - s1if a province proposes a referendum on succession , the HoC is to consider the question and determine whether the question is clear. Whether clear depends on the question would result in a clear result in clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independent state. i. Act states question is unclear if mere focus to negotiate or envisages economic /political arrangement with Canada that obscures a direct expression of the will of the population of that province

b. s 2 if q is clear, the Hof C has to determine if the majority is clear.i. The act does not define clear- requires HoC to take into acct size of majority, percentage of eligible voters who voted, and any other matters or circs

ii. If HoC finds that no clear majority in favour of secession, then Govt is prohibited by Act from enterin into negotiations

c. s3 the Act recognizes that under the Constitution of Canada, there is no right to unilateral(ii) succession, and an amendment would be needed to succeeds from Canada. Federalism

1.

Reference re Secession of Quebec- In interpreting our Constitution, the courts have always been concerned with the federalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been the lodestar by which the courts have been guided. a. Described federalism as a means of recognizing regional cultural diversity at the founding of Canada, particularly w/ respect to the distinct nature of Quebec as predominantly a French-speaking society. Notes experience of Canada East and Canada West had been bad under the Union Act (1840)- new Const structure enabled French-speaking Canadians to form numerical majority in Quebec . 2. Hodge v. Queen (1883)- national and provincial legislatures were coordinate authorities with equal sovereign status derived from Const.

(iii)

Democracy (Secession Reference)

1. The democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated. . . Democracy is commonly understood as being a political system of majority rule. Democracy encompasses a number of values, including: respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

(iv) Parliamentary Privileges - Houses of Parliament and the provincial legislative assemblies posses a setof powers and privileges that are necessary to their capacity to function as legislative bodies 1. New Brunswick Broadcasting Co. v Nova Scotia (1993) - unwritten doctrine parliamentary privilege should be included in the s52(2) definition even though no mention of it. - strangers were excluded from the Nova Scotia legislative assembly. 2. Also includes freedom of speech in debate, including from legal proceedings for things said in debates. It also includes right of members of parliament or legislative assemblies not to testify in court proceedings while Parliament or the Legislature is in Session. 3. Does not include all internal affairs of employees of House chauffer of Speaker alleged that hed been constructively discharged on grounds forbidden by Human Rights Act, SCC denied Parliaments position that they were internal affairs of Parliament SCC held didnt fulfill test of necessity 4. Powers authorized by parliamentary privilege are not subject to the Charter Rights. 5. The courts decision means the definition can be expanded. (v) Parliamentary sovereignity 1. Babcock v. Canada [2002] SC rejected challenge to S. 39 of Evidence Act, which allows fed govt to withhold cabinet docs from ct proceedings to which docs are relevanteven though rule of law, sepration of powers and independence of judiciary at stake balanced against principle of parliamentary sovereignity.

a. Secession Reference: With the adoption of the Charter, the Canadian system of govt was transformed to a significant extent from a system of Parliamnetary supremacy to one of constitutional supremacy.

(vi) Judicial independence1. Ref re Independence and Impartiality of Judges of the Prov. Court of PEI (1997) SCC assertedthat there was an unwritten principle of judicial independence in Const that could have the effect of invalidating statutes that reduced judicial comp. but decides case under 11(d) a. even though independence explicitly guaranteed in s.99 of 1867 BNA, Ct held unwritten principle required elaborate procedures be followed to remove a judge and even to set salaries

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b. Reasoning: Core characteristics of judicial independence include: security of tenure, financialsecurity and administrative independence. Independence necessary to maintain public confidence that justice will be done in individual cases, and that rule of law will be maintained. relationship between the judiciary and other branches of government must be depoliticized so courts both be free and appear to be free from political interference through economic manipulation by the other branches of government. c. FACTS: A statute decreased provincial court justices salaries b/c of a provincial deficit. Concern that this eroded judicial independence guaranteed under s 11(1)(d) of Charter. HeldJudicial salaries can be reduced, so long as (1) economic manipulation occurs through an independent body, combined with a judicial compensation commission (between the judiciary and other branches of government) that would depoliticize the process. (2) No negotiations on judicial remuneration b/w the judiciary and the executive/legislature. (3) Judicial salaries may not fall below a minimum level. Here, didnt happen so breach of section 11(d) of the Charter of Rights. As well as unwritten rule. d. Conventions i. Rules of the constitution that are not enforced by the law courts. although the existence of a convention has occasionally been recognized by the courts 1. Why do people obey them if not law? The breach of a convention would result in serious political repercussions and eventual changes in law. 2. Const. Convention UK parliament would not amend BNA Act except at request of Canada 3. Patriation Reference (1981)- SCC was asked whether there was a convention requiring that the consent of the provinces be obtained before the federal government requested the United Kingdom to enact an amendment to the Consti of Canada (1982 Const Act and Canada Act). That would affect the provinces. The court was also asked whether there was a legal requirement for provincial consent. SC found the convention required a substantial degree of provincial consent but it was not necessary to decide exactly what the requisite degree is. (later held Quebec approval not necessary- Quebec Veto Reference 1982) 4. Public School Boards Assn v Alta. [2000} & English Catholic Teachers Case v Ont [2001]- public school supported argued that provincial educational statues violated a constitutional convention. Held- in both cases that no convention restricted the policy or substance of what could be enacted by the provincial Legislature in exercise in its power to make laws in relation to education. e. Usage 1. A usage is not a rule, but merely a governmental practice which is ordinarily followed, although it is not required as obligatory. ie of Usage- the practice of appointing to the position of Chief Justice of Canada the person who is the senior puisne judge of the SCC at the time of the vacancy. This practice has been departed with the appointment of McLachlin in 2000. A usage may develop into a convention. The process of evolution from usage to convention may be called a custom. f. Main Conventions 1. the governor general only acts on the advice of the Privy Council 2. this Privy Council is not the full Council described in s13 of the Constitution Act 1867 but rather a smaller subset, the Cabinet 3. the cabinet chosen by the Prime Minister, and the number of ministers is up to him/her 4. the primes minster, although no where mentioned in the Constitution Act 1867, is the head of government 5. the prime minster and his/her cabinet must have the support of a majority of members in the house of commons 6. the prime minster and his/her cabinet must have seats in the House of Commons or Senate 7. House of Commons support for Prime Minsters and cabinets is rallied by means of Political parties and 8. A failure to command and support of a majority of members in the House of Commons results in the government stepping down and usually the calling of a general election. Other Conventions 1. The operation of Parliament and the legislatures generally, including political parties and at the national level, the relationship between the elected house of Commons and the appointed Senate 2. The operation of the federal and provincial cabinets, minsters and civil services and the relationship among them 3. Federalism generally, aside from the formal divisions or powers, including reservation and disallowance of federal and Provincial acts and the role the federally appointed lieutenant governor in provincial matters 4. The role of judges and courts in the governmental process and the independence of judges and courts interference

g.

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by the executive and legislative branches and

2) Amending Procedures - Part V of the Constitution Act, 1982 headed Procedure for Amending Constitution of Canada.a. 5 different amending procedures. i. General amending procedure (s38) for amendments not otherwise provided for (as well as for amendments listed in s42- proportionate representation, selection of Senate, SC of Canada, establishment of new provinces). 1. 7/50 Rule requires resolutions to be passed by: Senate + HofC + 7 of the 10 Provinces which have in total at least 50% of the population. 2. Opting out: 38(3) applies to any amendt that derogates from the legislative powers, proprietary rights or any other rights or privileges of the legislature or government of a province (a) Prov can pass resolution of dissent prior to proclamation = amendt will not take effect in that province (i) 38(4): resolution of dissent can be revoked at any time, but 46(2): resolution of assent cannot be revoked after proclamation (b) S40 compensates provs for opting out, for any transfer of Provl legislative powers to Fedl govt (in relation to education or cultural matters only).- otherwise wd be powerful incentive not to opt out, b/c opting out wd involve bearing substantial expense from which other provincial govts would be freed by amendment (e.g. transferring legis authority over universities from provinces to parliament)

ii. Unanimity procedure (s41), required for five defined kinds of amendments, requiring the assents of the federalParliament and all of the provinces - s39 time limits do not apply. 1. Office of Queen, representation in parliament-Senate floor entrenches right of least populous provinces to min representation in HoC, use of English or French- subject to S.43, composition of SC, amendment to amending procedures themselves 2. But re: SC, the composition of SC is dictated by Supreme Court Act, which is not part of Const, so this is ineffective

iii. Some but not all provinces procedure(s43), for amendment of provisions and only those provinces affected; 1. used for language usage within a province, altering provl bopundaries. Note: protection of minorities is afforded bythe fact that it also requires resolutions of the Senate and HofC (ie Fedl level approval) as well as the affected provinces. Hogan v Newfdlnd (2000).

iv. The federal Parliament alone (s44) has power to amend provisions relating to the federal executive and House ofParliament ;and 1. covers amendments to the Constitution of Canada in relation to the federal executive, or Senate and the House of Commons- provided that the amendments do not fall within the category of amendments caught by the General and Unanimity Formula.

v. Each Provincial Legislature alone (s45) has power to amend the constitution of the province. 1. Laws amending constitution of prov (ie those that bear on the operation of an organ of govt of the province SCC). Note does not include: Constl guarantee of language rights (per SCC in AG Quebec v Blaikie, now explicit in s45). b. Limitations i. Must wait 1 year to proclaim (unless all have consented/dissented) (allows time to consider) 39(1) ii. Expires in 3 years if required consent not achieved 39(2)

iii. Regional Veto Statute (not constitutional, 1996): no amendt can be proposed by Minister of the Crown unless it hasfirst been considered by a majority of the provinces that includes: Ont, Que, BC, 2+ Atlantic Provs rep min 50% pop, 2+ Prairie Provs rep min 50% pop. Applies to amendments that: do not allow for opting out, and must otherwise follow the general 7/50 procedure. Does not apply to : s41(unanimity) or s43 (some but not all) amendments. 1. Of course, non-minister can propose resolution, but not likely to pass w/o minister support c. Attempted Amendments i. French Canadian Nationalism: Meech Lake Accord 1987 to appease Que, but fell short of ratification by 2 provs. ii. Division of Powers: Reducing Fedl and incr Provl power easiest way to address French Candian and Western Canadian grievances. 1982 amendmts incr provl power over natural resources. On the other hand: Enlargement of certain Fedl

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powers may facilitate effective national economic policies, Fedl power is lacking or only avail in emergencies with respect to: foreign ownership, securities regulation, wage and price controls. 3) Federalism and Judicial Review a. Sources: Constitution Act, 1867, ss.91-95 i. Constitution Act, 1982, s.52 ii. Hogg, chapter 5, Federalism

b. Federalism- Unitary vs. Federal state i. Unitary state government power is vested in one national authority - powers given to municipal governments aregranted by a national authority and can be taken away, altered or controlled at any time by the national legislature. (Montreal-to Quebec).

ii. Federal- Coordinate power - general and regional govts are each within a sphere coordinate and independent.1. Hodge v. Queen (1883)- national and provincial legislatures were coordinate authorities with equal sovereign status derived from Const. 2. Both sections use terminology giving legislative authority in relation to matters coming with classes of subjects. (a) To provide collective benefits of economic union and greater financial strength and increase defence. As a reset the BNA act 1867 gave federal Parliament authority over customs and excise, interprovincial and international trade and commerce, banking and currency, all forms of taxation and national defence. Authority over criminal law, penitentiaries, marriage and divorce 4. s92- - provincial Legislatures. (a) BNA Act 1867 gave provincial legislatures authority over property, common civil rights, common courts, police, municipal bodies, hospitals and education

3. s91- federal Parliament

iii. Federalist History 1. BNA 1867 - Indications that the framers planned a strong central government. The Act gives the provinces only enumerated powers to make laws giving the residue of power to the federal Parliament. (a) s90 allows the federal government to disallow provincial statues (power has not been exercised since 1943) (b) by s58 the federal government was given the power to appoint the Lt Governor of each province (c) by s96 the federal government was given the power to appoint judges of the superior, district and county courts of each province. by s91(29) and 92(10)(c) the federal parliament was given the power unilaterally to bring local works within exclusive federal legislative jurisdiction simply by declaring them to be for the general advantage of Canada - used for railways and sparingly in recent years. (d) s93 of the Constitution Act 1867- gives the federal power to enact remedial laws to correct provincial incursions on minority educational right- has never been exercised and the practice has become obsolete.

2. Judicial Interpretation (a) Lord Watson 1880-1899 and Lord Haldane 1911-1928. - both believed strongly in provincial rights and (b)c. established precedents that elevate the provinces to coordinate status with the Dominion. They gave a narrow interpretation to the principle federal powers ( the residual power and the trade and commerce power and wide interpretation to the provincial powers

Judicial Review i. Supremacy Clause- s52(1) is the current basis of judicial review in Canada. 1. s52 Consti Act 1982-any law contrary to provision of the Constitution of Canada is of no force effect

2. Judicial independence- Elemental constitutional doctrine, closely tied to the separation of powers- ensures thatjudges, as arbiters of disputes, are at a complete liberty to decide individual cases on their merits without interference (SCC, Mackin v. New Brunswick). Federalism requires an impartial arbiter to settle jurisdictional disputes between the federal and provincial orders of government. Remuneration Reference (1997)

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3.

Administrative Law Jurisdiction- supervisory jurisdiction with respect to exercises of executive government authority. Judicial review of exec power is hallmark of s. 96 jurix. (Admin-Crevier)

ii.

Limitations of judicial review

1.

Justiciability: the idea of a sense of lack of fitness of submitting questions to a judicial or quasi judicial determination.

(a)

Operation Dismantle v The Queen (1985) Americans testing cruise missiles in Canada, s.7 challengecruise missile increases the risk of nuclear war. Court held it was ok to consider- no doctrine of political questions in Canadian constitutional law. If what we are being asked to do is to decide whether any particular act of the executive violates the rights of the citizens, then it is not only appropriate that we answer the question; it is our obligation under the charter to do so, but causal link between the actions of the Canadian government, and the alleged violation of the appellants rights under the Charter is simply too uncertain, speculative and hypothetical to sustain a cause of action

2.

Enforcement: Cts normally have to rely on the executive and legislative branches of government for the enforcement of their decisions.

(a)

In Doucet Boudreau v NS, the issue of court usurping executive function arose (where the court ordered the government of Nova Scotia to use its best efforts to build a French Language school to comply with its duties under the Charter (minority language rights). Periodic reports on its progress was also ordered [How close is this to the judiciary usurping the role of the executive?]

(b)

Reference re Language Rights Under s 23 of Manitoba Act, 1870 (SC, 1985): But In 1890 , the Manitoba Legislature enacted the Official languages Act which provided English Language only in records and journals of the Legislature and in the pleadings and process in the Manitoba courts. Courts held that Manitobas Official Languages Act was unconstitutional 4 times- but legislature didnt respond. Re Manitoba Language Rights (1985) SCC confirmed that the failure to comply with s 23 requirement resulted in the invalidity of the purported statue. To conform with rule of law, Court decided on a drastic remedy namely allowing the invalid acts to remain law until statutes were translated. The constitution will not suffer a province without laws- avoiding a legal vacuum in Manitoba and ensuring the continuity of the rule of law iii. Steps 1. First function of JR is to enforce the rules of federalism (a) First step - identify the matter (pith and substance or characterization) of the challenged law

(b) Second step is to assign matter to one of the classes of subjects. 2. Second function of judicial review is to enforce the Charter restrictions and the other non federal restrictions.(a) Charter- one identifies the purpose and effect of an impugned statue infringes charter right.)

iv. Presumption of constitutionality- In choosing between competing, plausible characterization of a law, the court shouldnormally choose one that would support validity. (Only for federalism, not charter cases.)

1. Rational basis - Where the validity of a law requires a finding of fact ( finding of emergency) the finding of factneed not be proved strictly by the government. It is enough that there be a rational basis for the finding. 2. Reading down (a) Where a law is open to both narrow and wide interpretation and under the wide interpretation the laws application would extend beyond powers of the enacting legislative body, the court should read down the law so as to confine it those applications that are within the power of the enacting legislative body.

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(b) General language of the statue which is literally extending beyond provincial or legislative power will beconstrued more narrowly so as to keep it within the permissible scope of power. 3. Severance (a) Rule- severance is inappropriate when the remaining good part is so inextricably bound up with the part declared invalid that what remains cannot independently survive.A-G Alta v A-G Can [1947] (i) Hogg: usually one legislative plan of which all parts are interdependent, so presumption against severance (ii) Toronto v York [1938] If two parts can exist independently then it is plausible to regard them as two different laws. (b) Charter- severance is more common in Charter cases. The same test is applied but it is unlikely that the entire statue is struck down on Charter rights. Only one case where entire statue was struck down- R v Big M Drug Mart (1985)

4. Progressive interpretation- Canada didnt go for originalism(a) Same Sex Marriage reference (2004). The SCC emphasized the living tree quality of the Constitution. (b) Also purposive interpretation e.g. R v Van der Peet (1996): defining aboriginal rights. (c) v. Interjurisdictional Immunity/Reading down(a) Limitation on the power of the provincial legislatures to enact laws that extend into core areas of exclusive federal jurisdiction- Inapplicable (not inoperative, which is paramountcy) (i) Difficult to distinguish pith and substance (which allows provincial matter to affect federal matter) from when interjuris immunity should apply (and statute read down) (b) Federally-incorporated companies- a valid provincial law may not impair the status or essential powers of a federally incorporated company. John Deere Plow Co v Wharton [1915] (c) Federally regulated undertakings-undertakings engaged in interprovincial or international transportation or communication , which come under federal jurisdiction under the exception to s92(10) are immune from otherwise valid provincial laws which would have sterilizing the undertakings 1. Vital part test outdated- Commission du Salaire Minimum v. Bell [1966] Bell was interprovincial and was immune from provincial min wage law b/c law affected vital part of mgmt and operation. a. Bell Canada v. Quebec [1988] bound by Quebec law that required protective reassignment of pregnant workers? Even though law requiring reassignment of small no. of workers could not impair operations of undertaking, regulation of labour relations affect vita part of mgmt and operation of firm and no concurrent provincial jurix

2. New impairment test: Provincial laws may validly extend to federal subjects unless laws bear uponthe those subjects in what makes them specifically of federal jurisdiction. a. Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3 If, the provincial law did not impair core competence of Parliament, or if a vital or essential part of an undertaking would be impaired the pith and substance doctrine stipulated that the provincial law validity applied to the federal subject. i. If albertas insurance act could apply to banks- promotion of insurance by banks was too far removed from core of banking to qualify as a vital part of the banking undertaking ii. If provincial law just affected provincial law, no immunity applied pith and substance doctrine would prevail enabling provincial law to apply to core of federal subject

d. Characterization/Matter - identify the most important characteristic of the challenged law. 1. What is the dominant feature (the pith and substance) of the law? (a) Bank of Toronto v Lambe (1887)- Privy Council upheld provincial law which imposed a tax on banks.Domonant feature of law was to raise revenue >> it was in relation to taxation (pith and substance) and merely affected banking. The pith and substance doctrine enables one level of government to enact laws with substantial impact on matters outside its jurisdiction.

2. General application ok, Singling out frowned on (but not determinative of pith and substance) (a) Alberta Tax Reference Privy council struck down Albert law which imposed tax solely on baks, concludedthat pith and substance was to discourage operation of banks in Alberta, taxing quality of law incidental.

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(i) Prohibiting the provincial legislatures from singling out banks or other federal undertakings for special (b) (c)treatment. But some cases uphold singling out - even though the laws singled out a person or class of persons within federal jurisdiction 1. e.g. Bank of Toronto imposed special rate of tax on banks alone And some cases overturn general application 1. if the effect of the provincial law would impair the status or essential powers of a federallyincorporated company, or affect a vital part of the federally regulated enterprise-- will not apply to the federally-incorporated company or federally regulated enterprise.

3. Double aspect Doctrine(a) Some laws have both a federal/provincial matter -- laws prescribing rules of conduct on the roads have a double aspect and therefore competent to both Parliament and a Legislature. (b) A little inconsistent with the stipulation in ss91 ss92 that each list of classes of subjects assigned exclusively (c) Hodge v The Queen (1883) held subjects which in one aspect and for one purpose fall within s92 may in another aspect fall within ss91. (d) E.g. Provincial driving offenses relation to road conduct (property and civil rights in province-92-13 or residual 92-16) and crim code (Mann v. The Queen 1966-upheld crim code) (i) Provincial Secretary of PEI v Egan (1941)- upheld suspension of drivers license for anyone who was convicted under fed crim code of drivin impaired SC held provincial law was in relation to regulation of highway traffic (ii) Boggs v. the Queen (1981)- fed crim law - driving w/suspended state drivers license struck down law b/c cd come from failure to pay provincial taxes (iii)Re BC Motor Vehicle Act [1985] a law that imposes only a penalty of a fine is not a deprivation of liberty. (Larmer left open imprisonment as an alternative to non-payment could be) (iv)

4. Court will look at purpose, but not efficacy (a) R v Big M Drug Mart ( 1985)- if the purpose of the statue had not been religious but rather the secular goal ofenforcing a uniform day of rest from labour then the Act would have fallen under provincial rather than federal competence. (i) Statute was valid federal exercise of crim powers but struck down under Charter, provincial was power over property and civil rights 1. Cf. R. v. Edwards Books (1986) Ontarios Retail Business Holidays ct valid under s.1 (ii) Statute can have a purpose in a preamble. The legislative history is helpful for interpreting specific provision of a staute but has been held inadmissible for characterizing the entire statute. Reports of royal commissions, law reform commissions, government policy papers and parliamentary debates are admissible.

(b) Effect- a court will consider the effect of the statute but not dominant consideration, goes more tocolourability (i) Saumur v Quebec ( 1953)- the judges were influenced by the actual use of the by law. Bylaw made offence to distribute literature w/o written permission of Chief of police, who used bylaw as vehicle of censorshipso ct found it was in relation to speech or religion and incompetent to province. They regarded the facts as to the actual use of the by-law as relevant and admissible on the question of classification.

(c) Efficacy - Re Firearms Act [2000]- Parliament is the judge of whether a measure is likely to achieve itsintended purpose; efficaciousness is not relevant to the Courts division of powers analysis.

5. No cheating - colourability doctrine (a) Invoked when a statue bears the formal trappings of a matter within a jurisdiction but in reality is addressed to amatter outside jurisdiction. The colourability doctrine applies the maxim that a legislative body cannot do indirectly what it cannot do directly. (b) Alberta Bank Taxation Reference- although ostensibly designed as a taxation measure, was in reality directed at banking.

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(c) R. v. Mogentaler (1993)- SC- Nova Soctia statute required designated medical procedures to be performed inhospital, labelled as health measure, but stimulas for statute from legis history was suppressing perceived harm or evil of abortion clinics- so invalid criminal laws e. Classes of Subjects 1. Exclusiveness- each class of subjects are listened in ss91 and ss92 of the Constitution Act 1867.

2. But double aspect sometimes, and pith and substance 3. Residual POGG/Provincial(a) s91 - make laws for the peace, order and good government of Canada relation to all classes not assigned to provinces (b) But any matter which does not come within any of the specific classes of subjects will be provincial if it is merely local or private (s92(16)) (i) Unimportant because the wide scope property and civil rights in the province has left little in residue in local or private matters. (ii) But s92(16)- Is a possible alternative to a92(13) rather than an independent source of power. Jurisdiction over highway traffic is provincial but SCC has not confirmed itself to a head of power, noted s92(16) or s91(13)

4. No ancillary doctrine- but pith and substance doctrine enables a law that is classified as in relation to. (a) The rational connection test allows each enumerated head of power to embrace laws that have some impacton matters entrusted to the other level of government and it provides a flexible standard which gives the enacting body considerable leeway to choose the legislative techniques it deems appropriate which was applied (i) Papp v Papp (Ont CA 1970) upholds custody provisions of federal Divorce Act- asks whether there is rational, functional connection between what is admittedly good and what is challenged (ii) R v Zelensky ( 1978) SC upholds crim code authroizing payment of compensation to victim of crime But for a major encroachment it deserves a stricter test- the impugned provision must be essential to the legislative scheme igation to contribute to support of a juvenile delinquient (i) General Motors v. City National Leasing (1989)- civil remedy in federal competition statute, rational connection test only limited intrusion over power

(b)

5. Concurrency- 3 provisions that confer concernent powers (a) Natural resources - s92A(2) confers on the provincial Legislatures the power to make laws in relation to theexport of natural resources and s92A(3)- is explicit that power is concurrent with trade and commerce power.

(b) Pensions - s94A confers on the federal Parliament the power to make laws in relation to old age pensions andsupplementary benefits and the sections acknowledges the existence on concurrent provincial power .

(c) Agriculture/immigration- s95- confers power on both the federal Parliament and the provincial legislaturesconcurrent powers over agriculture and immigration.. 4) Paramountcy a. Sources: Hogg, chapter 16, Paramountcy i. Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188

b. Federal paramountcy where inconsistent federal and provincial laws, fed law prevailsi. Provincial law is to say that it is rendered inoperative to the extent of the inconsistency.

c. Levels of inconsistency i. Express Contradiction - Impossibility of dual compliance (express contradiction)1. BC v Lafarge Canada (2007) - where agency wanted to work on a port in Vancouver. Needed consent from federal 2.government and provincial government. Held- until the city refuses permit, dual compliance is not impossible here. Multiple Access v. McCutcheon (1982)- same remedy for insider trading (provincial securities, federal corporate law)- no conflict- no paramountcy, provincial law good. Duplication is not test of inconsistency. (a) Double Civil liability double civil liability is also a possibility under overlapping or duplicative federal and provincial laws. But in Multiple Access, SC noted that no ct would award damages to a P who has already been

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fully compensated.

(b) Cf. Double Criminal Liability- The existence of overlapping/duplicative penal provisions raise the possibilitythat person may be liable to conviction under both federal law and provincial law for the same conduct. Nothing to prohibit under paramountcy doctrine, but s. 11(h) of Charter would apply (double jeapordy).

ii. Frustration of federal purpose- Canadian courts also accept a second case of inconsistency where a provincial lawwould frustrate a federal law. Where it is possible to comply with both laws but following the provincial law would frustrate the federal one, this is also a case of inconsistency. 1. Law Society of BC v Mangat (2001)- federal immigration act provided that a party could be represented by a nonlawyer in front of refugee board. The BC legal Profession Act stated that non lawyers were prohibited from practicing law (and appearing before federal tribunals/boards) Compliance with the federal law would go to contrary to Parliaments purpose to in enacting the federal laws)-they wanted to establish and informal, accessible, and speedy process.

2. Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188(a) Federal Tobacco Act prohibited the promotion of tobacco products, except a person may display at retail, a tobacco product (b) Saskatchewan Tobacco Control Act banned the display of tobacco products in any premise in which persons under the age of 18 years of age were permitted. (c) Court held: the retailer could comply with both laws , either by refusing to admit persons under the age of 18 or by not displaying the tobacco products . Any federal frustration- Courts said no- because the general purpose of the Tobacco Act (address health problems) and the specific purpose of the permission to display remained fulfilled.

iii. But not Negative implication (tough to differentiate from frustration of purpose) 1. Covering the field- SCC does not infer an inconsistency between federal and provincial laws based on an 2.imputation that federal law covers the field or carries a negative implication forbidding supplementary law in the same field. Rio Hotel v NB (1987) But an express covering the field clause would be effective according to Hogg. Example- s88 of the federal Indian Act provides that provincial laws are inapplicable to Indians to the extent that such laws make a provision for any matter for which provision is made by or under this Act

5) POGG a. Sources i. Hogg, chapter 17

b. S. 91- Peace, Order, and Good Government - residual power in its relationship with the provincial heads of power.1. c. 3 ways of POGG power: Gap, National Concern, Emergency Gap Branch 1. Fill the gaps in the scheme of distribution of power. (a) I.e.- incorporation of companies s92(11) gives the provinces the power to incorporate companies with provincial objects). Since there is no equivalent enumerated federal power the courts have held it falls under POGG power because it is residual in nature. (b) Jones v. A-G NB (1974)- SC upheld validity of federal official language act- attempted to guarantee equal fr and English in parliament since federal institutions and agencies are clearly beyond provincial reach they must be within fed reach under pogg

d. National concern branch i. Local or provincial legislation could acquire national dimension and come w.i pogg 1. Provincial inability test- One national law which cannot be realistically be satisfied by cooperative provincial action because failure of one province to cooperate would carry with it adverse consequences for the residents of others provinces.

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ii. R v Crown Zellerbach Canada 1988 - federal jurisdiction over marine pollution.distinctiveness (a) an identity which make it distinct from provincial matters and a sufficient consistence to retain the bounds of form. allays concern that national concern branch of pogg will swallow provincial pwers (b) Majority upheld the federal Ocean Dumping Control Act which prohibited dumping at sea on the basis of marine pollution was a matter of national concern- marine pollution did have ascertainable and reasonable limits, in so far as its impact on provincial legislation is concerned. LaForest dissented-he felt the power to regulate marine pollution thus intruded too deeply into industrial and municipal activity, resource development and other matters in provincial jurisdiction. (c) indivisibility clearly distinguishing it from matters of provincial concern 2. the failure of one province to enact effective regulation would have adverse effects of interests exterior to the province (a) the scale of the impact on the provincial jurisdictions is reconcilable with the fundamental distribution of legislative power under the Constitution. iii. Cf. Insurance Reference 1. POGG Power CANNOT- be used to regulate a particular industry merely because the industry is nation-wide and important to the national economy. e. Emergency i. Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373 1. Federal anti inflation Act was upheld as an emergency measure. Their was a period of double digit inflation and high rates of unemployment. Problem was the preamble of the Act itself did not recite reasons for the legislation or assert the existence of an emergency. There was factual material (economic study) which was agreed to by professionals and not serious challenged. (a) Important note about temporary charter of law- the anti-inflation reference the legislation was temporary. No permanent measure has ever been upheld under the emergency power. ii. War Measures Act upheld in Wartime Leashold Regulations Reference (1950)- rent control, even after end of WWII iii. Will only support temporary measures 1.

6) Criminal Law a. Constitution Act, 1867, s.91(27)- confers on the federal Parliament power to make criminal laws. 1. Division of powers (a) Enforced by provinces under 92(14) (b) Rules of procedure and evicence are federal 91(27) (c) 92(15) gives provinces power to have penal sanctions for any matter coming within their classes (i) E.g. Provincial Secretary of PEI v Egan (1941)- upheld suspension of drivers license for anyone who was convicted under fed crim code of drivin impaired SC held provincial law was in relation to regulation of highway traffic

b. Definition- A criminal law must have a valid criminal law purpose backed by a prohibition and a penalty. i. Criminal Purposes - Prevention of harm to other human beings. Protection of the environment, protection to the crueltyof animals, various forms of economic regulation has been upheld criminal law. 1. Not Federal Crim (a) Food standards- Margarine Reference (1951) struck down law banning margarine sale on the basis that the purpose of legislation was an economic one protecting the dairy industry property and civil rights in province (i) If injurious to health then no doubt would be a criminal public purpose and food standards cd be upheld (b) False labelling - Labatt Breweries v A.G. Can (1971) no basis for national food standards (light beer) -cant be justified under crim (no relation to health with light beer), commerce, pogg precludes national regime of

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compositional standards for food

(c) Drivers license - Boggs v. the Queen (1981)- fed crim law - driving w/suspended state drivers license (d)struck down law b/c cd come from failure to pay provincial taxes Civil remedy MacDonald v. Vapor- section 7e of TM Act prohibited business practices contrary to honest industrial usage, authroized ct to grant civil relief for breach of this section property and civil rights. (i) Cf. Papp v. Papp - pith and substance is divorce, custody (under provincial jurix) is incidental. 1. whether there is rational, functional connection between what is admittedly good and what is challenged. (not criminal issue) (ii) Cf. R. v. Zelensky (1978)- crim code authroized ct to order accused to pay victim compensation enforced by victim as civil judgment Competition Act- Since economic competition is important and its difficult for provinces to regulate anticompetitive practices it has been agreed it has to be federal to be effective under trade/commerce power, (civil remedies allowed to private parties could not be supported under crim power)- - jurix of Competition Tribunal (w/remedies of blocking mergers, requiring divestitute, other civil stuff) not supported by crim, most of act not supported under crim,

(e)

2.

Fed Crim (a) Illicit drugs (i) R. v. Malmo Levine- non medical use of drugs such as marihuana, cocaine and heroin is proscribed -upheld as a criminal law, even though no harm to others, harm can be moral. (ii) Cf. Schineider v The Queen (1982)-the SCC upheld the BC Heroin Treatment Act- compressive apprehension , assessment and treatment of drugs addicts. was provincial s92(16). Not criminal because detention was not for punishment. (b) Tobacco- RJR-MacDonald v Canada ( 1995)- the SCC held the power to prohibit the use of tobacco on account of its harmful effects on health also encompassed the power to take the lesser step of prohibiting the advertising of tobacco products even though legal, within crim power. Protection of public from dangerous product. (c) Environmental protection R v Hydro-Quebec (1997)-SCC agreed that the protection of the environment was a public purpose that would support a federal law under the criminal law power and the Environmental Protection Act was covered. (d) Abortion The CCC used to prohibit abortions. In Morgentaler v The Queen- the validity of the prohibition was challenged on the basis that the safety of modern techniques of abortion made prohibition inappropriate as a protection for the health of the pregnant women. therefore prohibition was not authorized by the criminal law power but crim power ok to protect state interest in fetus (e) Religion- In R v Big M Drug Mart (1985)- the SCC confirmed that the Lords Day act was a valid exercise of the criminal law power, because it pursued the religious purpose of preserving the sanctity of the Christian Sabbith because it was intended to safe guard morality (this was kiss of death under Charter). (f) Gun Control - In 1995, the federal parliament amended the CC provisions by enacting the Firearms Act which expanded the existing rules by requiring all guns to be registered and all gun owners to be licensed. (i) Alberta appealed this act and the SCC held that this was a valid exercise of criminal law power. The purpose was to restrict access to inherently dangerous things. History had revealed violent crimes, domestic violence, suicides, and accidents. The court held it was not merely regulatory because if provisions were enforced by the criminal law means of a prohibition and penalty, because the Act prohibited possession of a gun without a license and a registration certificate, imposed penalties for breach of the prohibition. 1. Guns were property but incidental to main purpose of public safety

7) Trade and Commerce a. s92(13) Provincial power over property and civil rights in the province 1. Parsons Case- it has been accepted that intra-provincial trade and commerce is a matter within provincial power, under property and civil rights in the province(s92(13)

b. s91(2) Federal Power over trade over regulation of trade and Commerce1. Federal trade and commerce power is confined to 1) interprovincial trade or international trade and 2) commerce and general commerce in 91(2) (a) There is a strong argument that whenever a market for a product is national (or international) in size as opposed to local, there is a strong argument that effective regulation of the market can only be national but - Canadian decisions have not gone that far yet like the US.

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2.

R. v. Klassen (1959)- Wheat Board Act provided for compulsory purchase by Canadian Wheat Bd of all grain destined for mkts outside province of production, applied to purely local work (feed mill which processed locallyproduced wheat) thus applied to wholly inerprovincial transaction where main object was to regulate interprovincial trade

3. Egg market in Re Agricultural Products Marketing Act (1978)- federal marketing was upheld, provinces pt of effort(a) Provincial statute also upheld, Ct divided fed to inter, province to intra

4. Chicken market in Federation des producteurs v Pelleand (2005) the court upheld a federally imposed quota oneach of the provinces without the regard for the destination of the product.

5. Cf. Beer labelling. Labatt Breweries v AG Can(1979)- another case where the federal trade and commerce powerwas rejected as a support for federal legislation.

6. Cf. Dominionc. General Trade and Commerce i. Until General Motors- the general category of trade and commerce had been rather consistently rejected as a support for federal policies of economic regulation. ii. General Motors v. National City Leasing- Investigation Act ( now the Competition Act) was a valid exercise of the general trade and commerce power no longer crim b/c remedies for act were decriminalized. Allowed regulation of intra-provincial trade. 1. the presence of a regulatory scheme 2. the oversight of a regulatory agency and 3. a concern with trade as a whole rather than with a particular industry. 4. the legislation should be of a nature the provinces jointly or severally would be constitutionally incapable of enacting 5. the failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the competition.

8) Property and Civil Rights a. Sources: i. Hogg, chapter 21, Property and Civil Rights ii. BNA- s92(13)- confers power on the Provincial Legislature to make laws in regards to property and civil rights in the province 1. Civil Rights- in s92(13) is used in an older stricter sense- contractual or tortuous rights 2. But trade and comm. (s91(2)), banking (s91(15), bills of exchange and promissory notes (91(18), interest s91(19), bankruptcy and insolvency s91(21), patents and invention and discovery (s91(22), copyrights s91(23) and marriage and divorce s91(28)- POGG power in s91 can also deal with matters of property and civil rights b. Insurance 1. Provincial Power-19th century both level of governments started to regulated insurance. a provincial statue is what brought the first case to court. Citizens Insurance Co v Parsons ( 1881) the Privy Council helped an Ontario statue requiring certain conditions be included into every policy of fire insurance entered in ONT. They held regulation of the terms of contracts came under property and civil rights in the province s91(13) and did not come within trade and commerce s91(2). several attempts by the federal government to regain jurisdiction had failed. 2. Federal Power continues to regulate a substantial part of the insurance industry under statues covering British and foreign companies, federally-incorporated companies and on a voluntary basis, provincially-incorporated companies. There has no constitutional attack since 1942. The federal statues that include preambles indicating the powers trade and commerce and aliens and insolvency are relied upon. All the litigation between 1916-1942- the federal power over insolvency (s91(21) was never considered as a possible jurisdiction . Labour Relations 1. Provincial powers- the regulation of labour relations over most of the economy is within provincial competence under property and civil rights in the province. Unemployment Insurance Reference 1937 2. Federal there is still a substantial federal presence in this field. (a) Bell Canada v. Quebec provincial health law re no monitors for pregnant employees interefered with federally

c.

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regulated industry= immunity d. Marketing 1. Federal Power- federal regulation in grain and oil has been upheld. It is because these goods traveled from province to province or export could be regulated. 2. Provincial Power-contracts of sale and purchase are prima facie matters within property and civil rights (s92(13) (a) Const. Act 1982 s50 added a new s92A enlarging provincial powers over natural resources. these apply to nonrenewable natural resources and forestry resources. it has no application to eggs or other agriculture products. (b) But provincial intra regulation ok, even if some effects outside province (Carnation v. Quqbec Agr Mktg. Bd 1968)

e. Securities Regulation 21.10 1. Provincial power- this a matter within the property and civil rights of the province. (there are exceptions federally2.incorporated company can be regulated by both provincial and federal.) The question is in each case, whether a the degree of provincial control amounts to a denial of an essential attribute of corporate status. (e.g. raise capital) Federal Power- regulation of securities by federally-incorporated companies and authorizes some degree of regulation of trading those securities. Criminal law can punish deceptive practices. The federal power would not a regulatory regime in licensing of brokers and discretionary powers in administrative agencies. (corporations act)

f. Foreign ownership- Morgan v AG PEI- a province can control ownership of land. A statue in PEI stated that no person whois not a resident of the province could acquire holding of real property of more than a specified size except with the permission of provincial cabinet. If it was aliens instead of non-residents it may have been federal jurisdiction because naturalization and aliens s91(25). 9) Charter of Rights and Freedoms a. Commencement of Charter i. Any laws enacted before April 17 1982 will have no force or effect ii. Exceptions 1. s13 incriminating evidence that the witness may have given in earlier proceedings. The right may be invoked even if the earlier proceedings took place before April 17 1982. 2. another example Brenner v Canada ( 1997)- He was born in 1962 that was refused citizenship in 1987 different stds for child born of Canadian man vs woman. He challenged immigration laws and won b/c statuts created condition that continued after 4/17/82.

b. Dialogue with the Legislative Branch i. R. v. OConnor statutory regime for disclosure to accused of confidential records in sexual assault cases, courts had to balance between the accusers right under s 7 to make full answer and defense and the complainants right under s8 right to privacy and under s 15 equality. After OConnor, Parliament enacted new laws which were upheld w.o resort to s.1. The court described this process as a notable example of the dialogue between the judicial and legislative branches

ii. Canada v. JTI-Macdonald (2007)- ban on tobacco advertising struck down as breach of freedom of expression too severeunder s.1 1. ct says the fact that its parliaments response to earlier decision does not militate for or against deference 2. Parliament changed law so that informational advertising ok, shouldnt be banned - lifestyle advertising and ads to kids should be specifically targeted. Ct upholds under s.1. c. Interpretation of the Charter i. Progressive Interpretation - Since a constitution is difficult to amend and its language is broad to accommodate a wide range of facts. It calls for a flexible interpretation. Edwards v A.G. (1930) a living tree capable of growth and expansion within its natural limits. Not originalism.

ii. Generous Interpretation suitable to guarantee rights iii. Purposive Interpretation - this involves an attempt to ascertain the purpose of each Charter right and then to interpretthe right so as to include activity that comes within the purpose and exclude activity that does not. (This usually comes with the generous approach)

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1. e.g. R v Van der Peet (1996): defining aboriginal rights. iv. Process as purpose- the Charter guarantees the integrity of the political process itself by enhancing the opportunitiesfor public debate and collective deliberation. This approach has two advantages. The first advantage is that it supplies a helpful context for interpreting particular guaratantes. The second advantage of the process-based theory of judicial review is that it offers a solution to the problem of the legitimacy of judicial review. 1. e.g. free speech is essential to democratic govt 10) Rights a. Hierarchy of Rights i. Conflict between rights 1. s25- aboriginal and treaty rights-recognizes the possibility of conflict and provides that the aboriginal and treaty rights are to prevail against guarantee of equality of races 2. 93 (denominational school rights)- s29 recognizes the possibility of conflict and provides that denominational school rights are to prevail. (e.g. BNA 93 vs Charter 15- discrimination on the ground of religion)) 3. R. v. Keegstra (1990)- hate propaganda offence of criminal code- upheld under s.1, courts didnt buy argument that code provision furthered values of racial equality in s.15

b. Who can use? i. Everyone in Canada including illegal immigrant in s.71. 2. 3. Singh v Minsters of Employment and Immigration (1985) held that anyone who entered the country, however Illegally, was instantly entitled to assert s7 rights which apply to everyone. Deportation and possible torture would usually be a breach of the Charter Suresh v Canada ( 2002) Exterritoriality (a) R v Cook ( 1998)- American citizen arrested in America for Canadian murder. Argued statement given in US to Candian police was illegal due in violation to right of counsel. Ct said breach of Charter. (b) R v. Hape no breach for search and seizure. Two tests under s.32 of Charter, only applicable to Canadian state actors, but not those acting abroad b/c principle of sovereignty will mean that Charter doesnt apply. Second question is under s. 7 whether admitting evidence obtained through foreign investigation makes it unfair ok here b/c wd not make trial unfair. (c) Canada v Khadr ( 2008)- Hape reasoning did not apply to this case. Breach of duty of 24(1) of charter to provide to disclosure to Kahdr of interviews with Canadian intelligence. Hape distinguished b/c Canada participated in Guatanamo process and breached Genea convention- charter kicked in.

ii. Not available to Corporations 1. s2(a) Freedom of conscious and religion in does not apply to corporation, because a corporation cannot hold religious belief or any other belief. 2. s7 does not apply because it is limited to deprivations of life, liberty and security of person which are attributes of individuals, not corporations. 3. s9-The right to not be arbitrarily detained or imprisoned 4. s10 arrest and detention 5. s11 (e) the right to reasonable bail because a corporation cannot be detained, imprisoned or arrested. 6. s13 The right to self incrimination 7. s14 the right of a witness to an interpreter iii. But corps have standing to invoke a right of others under s.24 1. freedom of religion for Sunday selling

c. Who is bound? Not private actors except indirectly.i. S32 requires that there must be action by a Canadian legislative body or govt for the Charter to apply. ii. S32- Parliament and Legislature make it clear the Charter operates on these powers and any statue enacted by either Parliament or a Legislature which is inconsistent with the Charter will be outside the power of ( ultra vires) the enacting body and will be invalid. 1. anybody exercising statutory authority GG, ministers, officials, municipalities, administrative tribunals, and police officers are all bound by the Charter. ( NOTE- action taken must be within the scope of that authority) flows down

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chain of statutory authority involves a power of compulsion that is not possessed by a private individual or organization. Cf. Schreiber v Canada (1998) A letter sent by RCMP to get information about Swiss Bank accounts against criminal in Canada. The criminal argued the letter was a breach of the Charter. Held- the letter had no legal affect and was not subject to the Charter. iii. Citizens Arrest- A private person making a citizens arrest under statutory authority is subject to the Charter. R v Lerke ( 1986) iv. Insurance terms stipulated by law- The Charter was applicable to an automobile insurance policy that excluded common law spouses from spousal accident benefits-although both the insurer and the insured were private parties, the terms were stipulated by state. Miron v Trudel [1995] v. Failure to protect Vriend v. Alberta (1998)- dismissal from employment, P sues under s.15, Charter violation for failure to protect gays vi. Labour 1. Bhindi- a closed shop where employer agrees to hire on union workers. Court held that the collective agreement was a private contract to which the Charter did not apply. 2. Lavigne- SCC held the Charter did apply because the employer was an agent for the province which made the collective agreement a governmental act. If employer had not been a part of the government then the collective agreement would be a private contract and the Charter would not have applied. vii. Not applicable to hospital Stoffman v. Vancouver (1990)- charter didnt apply to hospital created by statute since no compulsion 1. vs. Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 (a) Charter was applicable despite the absence of any power of compulsion. Issue- Is a hospital bound by a Charter? The hospital did not provide sign language interpretation for deaf people seeking medical services, (breach of s15 equality guarantee) The Hospital Services Act funded the hospitals services program so it was implementing a specific government policy and program this contrasted (Stoffman) held the Charter did not apply to hospitals and their day-to-day operations. [Hogg says BS distinction] viii. Courts- R v Rahey ( 1987) The SCC had to determine whether a criminal court had denied to a defendant the s 11(b) right to be tried within a reasonable time. 2. 3.

ix. Not Common Law or private actors - vs. US, where NYS v. Sullivan found 1A limited defamation c/a1. RWDSU v Dolphin Delivery [1986] Where a civil obligation is created by the common law (law of contract) there will be no Charter remedy because the Charter does not apply to private parties.

x. The Charter can have an indirect impact on private action. - In all Canadian jurisdiction Human Rights Codes havebeen enacted that prohibit private acts of discrimination. 1. Blainey v Ontario Hockey Association (1986)- Facts- Human Rights Codes themselves are subject to the Charter of Rights. Girl who was excluded from Hockey team challenged a provision of the Ont. Human Rights Code- that permitted single sex sports teams. Usually prohibited discrimination by sex but allowed single sex teams. The Ontario Court of Appeal held that it was a breach of s15 because it denied to the plaintiff the benefit of the Human Rights Code by reason of her sex. The effect of nullifying the exception which gave the plaintiff a remedy under the Human Rights Code. The Charter did not apply to the hockey association but did apply the Human Rights Code. 2. McKinney v University of Guelph (1990)- The Charter can have an indirect impact on private action. A professor did not want to retire at the mandatory age of 65 so he challenged the law. The university was a private body so the Charter did not apply. Ontario human rights code permitted the mandatory requirement so he argued the Code was a breach of s15 age discrimination. SCC held- that it was a breach of s15 but went on to state that it was justified under s1.

11) Rights Override s33 a. common rights ( subject to override) s 2, s 7, s8, s9, s10, s11, s12, s13, s14 b. privileged rights ( not subject to override) s3, s4, s5, s6, s 16, s 17, s18, s19, s20, s21, s22, s23, s28 c. Role of section 33 i. s 33 is an override power which enables the Parliament or a Legislature to enact a law that will override the guarantees in

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s 2, and s7 to 15 of the Charter. All that is necessary is the enactment of a law contacting an express declaration that the law is to operate notwithstanding the relevant provision of the Charter. 1. The override provision extends to s2 (expression), s7 to 14( legal rights) and s 15(equality). 2. It does not extend to s3-5(democratic rights), s6 (mobility rights) s16 to 23 ( language rights) or s 28(sexual equality). No override is possible with these provisions.

ii. Needs express declaration that it is to operate notwithstanding a provision included in s2 or s7-s15-- s33(2)1. It also must be specific as to the statue and must be specific as to the Charter right which is to be overridden.

iii. Sunset clause which will automatically expire within 5 years. 33(4) permits the express declaration to be re-enacted. Thesunset clause makes Parliament/Legislatures to re think the laws. d. Examples i. Ford v. Quebec (Attorney General), [1988] law banning english language reviewed. SC allows quebec to omnibus notwithstanding amending all statutes, even though doesnt specify which specific charter rights violated, specific statutes no mentioned, but no good retroactively (before qubec law passed). In any event, law expired after 5 yrs ii. Outside Quebec, the power has been used 3 times e.g. Alberta law that marriage couldnt be same-sex

12) Judicial Review of Charter Challengesa. 2 stage process i. First stage: Determine whether the challenged law derogates from a Charter right. 1. Characterization of the challenged law (a) A law will offend the Charter of Rights if either its purpose or its effect is to abridge a Charter right. (i) Vs. pith and substance inquiry is just purpose (ii) R v Big M Drug Mart [1985] It is very rare that legislative bodies enact laws that have the purpose of abridging a Charter right. ( Lord Day Act) (iii) R. v. Edwards Book and Art [1986]- purpose was secular purpose to establish uniform pause day for retail works. Passd purpose test, effects test- imposed burden on Sabbatarian retailers (b) Can be servered or read down 2. Understand Meaning of the asserted right.

ii. Second stage: Justified under s. 1 (S-1 Charter guarantees rights and freedomsonly to such reasonable limitsprescribe by law as can be demonstrably justified in a free and democratic society.) (Oakes test below) 1. Proof in s1 analysis (a) The burden is on the person alleging a breach of the charter. If established, then the burden shifts to the government rep. who is supporting the law. R v Oakes (1986) The government must persuaded the court the law is a reasonable limit in a free and democratic society. (b) The standard is proof by a preponderance of probability. b. S.1 Prescribed by law Std. i. Makes it clear that if the act that is not legally authorized it can never be justified under s1. ii. Court decisions usually show the 1. the law is accessible & 2. the law is precise. 1. This incorporates two crucial values of the rule of law. 1) The law must be adequately accessible to the public and 2) law must be formulated with precision to enable people to regulate their conduct by it and guidance to those who apply it. (not void for vagueness)

2. accessible - statues, rule of common law, regulations will qualify. Irwin Toy v Que [1989] (a) not accessible- directives, guidelines issued by government departments or agencies. Committee for Cth of Can.v Can [1991] (airport internal directives)

3. precision - prescribed by law (a) Irwin Toy v Que [1989] 3 factors shd be taken into acct when determining whether ad was directed a personsunder 13 yrs, challeneged as void, but ct held it was not practicable to seek absolute precision in a statute

(b) Would fail prescribed-by law test only where there is no intelligible standard and where the legislature hasbeen given a plenary discretion to do whatever seems best in a wide set of circumstances. Irwin Toy v Que [1989]

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(c) Court held prohibitions passed as an intelligible standard ( prescribed by law test/precision) on a limit on freedom of expression: (i) a prohibition on communicating for the purpose of prostitution Re: s193 and 195.1 CC [1990] (ii) a prohibition on communicating hatred or contempt towards minorities Can. v Taylor [1990] (iii) a prohibition on political campaigning by civil servants Osborne v Can [1991] (iv) a prohibition on the sale of obscene materials, Butler test R v Butler [1992] (v) a prohibition on tobacco advertising that was likely to create and erroneous impression of the health hazards of tobacco Can v JTI-MacDonald Corp [2007]

iii. Also discretionary exercise of authority will usu. satisfy prescribed by law requirement1. Statue that expressly or by necessary implication authorized a decision that would infringe a Charter right. (Ontario Film and Video) (a) Will satisfy the prescribed by law requirement if the discretion is constrained by legal standards. Re Ontario Film and Video Appreciation Society struck down statute b/c censor was given unfettered discretion and statute did not stipulate criteria. Statute that conferred a discretion in language that was broad enough to encompass decisions infringing a Charter right although the language did not expressly or by necessary implication authorize infringements of the Charter. (a) Shd be Read Down so it does not infringe the Charter (i) Organized police car stops unfettered discretion conferred by the statue, upheld b/c statute shd be interepreted to extend to random stops - R v Hufskys (1988)

2.

c. Reasonably and demonstrably justified std- Oakes Test Dickson CJ 1. Sufficiently important objective: The law must pursue an objective that is sufficiently important to justify limitinga Charter right. (a) Ct usu doesnt object to legislative judgment that the object of law is important enough to limit Charter. (i) Children - Irwin Toy v Quebec (1998) SCC upheld a Quebec law that prohibited advertising directed at children under 13. It infringed on freedom of expression but was justified by s1. It had a very low level generality objective in that it protected children (vulnerable) from advertising. (ii) French- AG of Quebec v Ford (1988)- Court held: purpose ok, but banning of English had gone too far and could not be justified under #3. (iii) Day of rest - R. v. Edwards (1986) day of rest from work upheld under s.1- provincial law- day for retail workers. Legis history- day is one to provide pause day. (iv) Cf. Exclusion from statute- Vriend v Alberta (1998)- the legislation did not protect against discrimination on the basis of sexual orientation. The breach of the Charter lay in what was omitted from Act. The province had failed to establish the existence of an important objective that would satisfy the first step of the Oakes test. The limit then could not be justified under s1 and the omission was unconstitutional. (v) Cf. Religion- R v Big M Drug Mart (1985)- Is the only one case where the courts rejected the legislative objective. No Sunday shopping.

(b) Cf. Cost(i) Singh v Minsters of Employment and Immig (1984)- Immig argued full hearing would impose an unreasonable burden on the resources of government. It was held that a full hearing right had to be provided. (ii) R v Lee (1989)- reducing administrative inconvenience and reducing expense are not, in my view, sufficient objectives to override such a vital constitutional right. (iii) Cf. Newfoundland v NAPE (2004)- Binnie J stated-normally financial considerations would not be suffice but the government was in a financial crisis, so s.15 Charter gender-equity pay was outweighed by s.1. (c) Shifting objectives (i) R v Big M Drug Mart (1985) Required Objective to cause the enactment of the law. Rejected the notion that the purpose of a law might change over time with changing social conditions. Religious motivation when legislation enacted in 1906, couldnt now be viewed as secular purpose. (ii) R v Butler (1992)- anti-obscenity law, original objective was morality, interpreted to mean that objective had always been the protection of society from the harms caused by obscene materials. Held this was it promoted sexual equality gave it a permissible shift in emphasis. This made the objective into a

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(iii)

generality that could be remain constant over time. Hogg- path around the rule against shifting objectives. R v Zundel (1992)- original objective was to protect great man of realm from malicious lies, held that the prevention of harm from deliberate falsehoods was too general a statement of the laws objective to allow shift in emphasis. Law struck down.

2.

Rational connection (a) The law must be rationally connected to the objective.(very rare that law is not rationally connect to the objective (i) RJR MacDonald v Canada (1995)- Judges will use common sense, reason and logic to determine if a rational connection exists -- no rational connection between the advertising ban and the objective of reduced consumption. (ii) R v Oakes [1986] Reverse onus clause. Dickson- There must be a rational connection between the basic fact of possession and the presumed fact of possession for the purpose of trafficking. The reverse onus clause could not satisfy this requirement because it did not make any stipulation as to the quantity of narcotics in the possession of the accused-possession of a small amount of narcotics does not support inference of trafficking. (iii) Benner v Canada (1997)- Moms citizenship. It was a breach of equality rights to impose more stringent requirements for Canadian citizenship on a person born outside Canada before 1977 to a Canadian mother than a person born outside Canada before 1977 to a Canadian father. Government argued that that it was a security measure and it was rational to to screen potential citizens in order to keep out dangerous persons. Court Held: the objective was justified in keeping out dangerous citizens but it was not rational to discriminate against kids from Canadian mothers as more dangerous as ones from Canadian fathers.

3. Least drastic means- The law must impair the right no more that is necessary to accomplish the objective (mostissues) (a) In almost any situation it could be easier to come up with a less drastic means -- judges have to allow provincial legislatures a margin of appreciation so provinces can provinces different social objectives. R v Advance Cutting & Coring [2001] (b) Overturned (i) Felony murder rule. R v Valliancourt [1987]-Criminal Code felony-murder rule has been held to be too drastic a means of discouraging the use of weapons by criminals. (ii) Ban on English. Ford v Que [1988] Quebecs prohibition of the use of English in commercial signs has been held to be too drastic a means of protecting the French language. (iii) Ban on non-resident lawyers. Black v Law Society of Alta [1989]-Albertas rule prohibiting Alberta lawyers from entering into partnership with lawyers not resident in Alberta has been held to be too drastic a means of regulating the standards of the legal professions. (c) Upheld (i) Reverse Onus. R v Whyte (1988)- upheld a Criminal provision which presumes person in a driver seat care and control of vehicle - for the purpose of Drunk driving offences. The reverse onus- was a response to a pressing social problem and a minimal interference with the presumption of innocence. (ii) Ban on disclosure of sex victim name- Canadian Newspapers Co V AG of Canada (1988)- court order banning the disclosure of sexual assault victim so that it would serve the purpose of fostering complaints by victims of a sexual assault. (iii) Ban on picketing - BC Gover. Employ. Union v AG of BC (1988)- injunction from picketing at court because a picket line ipso facto impedes the public access to justice. The injunction limited freedom of expression by the least drastic means because the union was free to picket workplaces. (iv) Limited exemption for Sabbath observers- R v Edwards Book and Art (1986) Debate abt Ontario law Sabbatarian exception went far enough b/c exemption for Sat. observers limited o small stores.

4. Proportionate effect- The law must not have disproportionately severe effect. Balancing test objective ofimportant law vs. infringement of charter. (a) Hogg believes restatement of first step, and that it has never been used. An affirmative answer to the 1st step, (sufficiently important objective,) will always yield an affirmative answer to the 4th step proportionate effect.

13) Freedom of Conscious and Religion s2(a)19

a. Constitution Act, 1982, s.2(a) guarantees to everyone the fundamental freedom of conscience and religion. i. conscience- R v Morgentaler [1988] protects systems of beliefs which are not theocentric (centered on a deity) andwhich might not be characterized as religious for that reason (or for some other reason)

ii. definition of freedom of religion- R v Big M Drug Mart (1985)-Dickson J- is the right to entertain such religiousbeliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching or by dissemination. 1. manifest - such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own. 2. sincerely held test- Anselem- all that was necessary to qualify a practice for Charter protection was that the claimant sincerely believed that the practice was of religious significance Religious belief was intensely personal and can easily vary from one person to another. The test was wholly subjective. Expert evidence was not necessary because the claimant has to show a sincerity of belief. Even an inquiry into the sincerity of belief was to be as limited as possible Individuals change and so can their beliefs. (a) Multani v Commission scolaire Marguerite-Bourgeoys (2006) Sikh boy wants to wear kirpan to school-The court found that he sincerely believed that he needed to wear it. It was irrelevant that other Sikhs accept such a compromise. Oakes test made tried to limit his freedom as possible and made him carry it in a wooden sheath sewn inside his pants.

b. Protected (struck down)i. ii. iii. iv. v. Donald v Hamilton Bd Education [1945]- refusing to salute the flag or sing the national anthem Saumur v City of Quebec [1953] -distributing proselytizing tracts R v Harrold (1971)- chanting a mantra Syndicate Northcrest v Amselem (2004) - building of succahs on patios Denominational schools 1. s2(a) requires a province to permit children to be educated outside the secular public system. Provinces do have the right to regulate alternative schools to ensure core curriculum and standards are met. 2. Protestant and Catholic schools are recognized under s 93 and may receive public funding that is denied to the schools of religious denominations not recognized by s93.

c. Not protected under s.1 (struck down stautes) i. R. v. Edward Brooks- even though secular purpose to provide common pause day for retail work, effect was to impose aneconomic burden on retailers who closed Saturday, competitive pressure to abandon a non-Sunday Sabbath, but upheld under s.1. ii. Young v Young (1993)- Harm to children- Father was not allowed to speak about his Jehovah Witness religion to son because it caused fights with mother. SCC held- the right to the freedom of religion did not guarantee any religious activity that would not be in the best interests of the children. But stuck down, b/c not shown in best interest of child. iii. Blood transfusion - B.R v Childrens Aid Society (1995) Harm to children- parents did not want blood transfusion but the Childrens Aid Society. Wards did it anyway. Court Held: a breach of their s2(a) right but it was justified under s1. a parents freedom of religion does not include the imposition on the child of religious practices which threatens the safety, health, or life of the child

iv. Public School Practices 1. Zylbergberg v Sudbury Board of Education (1988)- challenge school opening and closing with religious exerciseconsisting of the reading of the Scriptures or other suitable readings and the repeating of the Lords Prayer or other suitable prayers. Unconstitutional because it imposed Christian observances upon non-Christian pupils and religious observances on non-believers. Even though statute authroized non-christian prayers and readings.

v. Religious marriage 1. Same-sex marriage reference (2004)- SCC was asked by Parliament if it could enact a bill legalizing same-sexmarriage for civil purposes. SCC Held- it could do so under marriage in s91(26) of the Constitution Act 1867. (a) But invalidated provision providing that nothing affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.- Ct held ultra vires Parliament b/c provinc power under s92(12) soleminization of marriage. The court then went on to say the invalid section was protected by s2a of the Charter. S2a was broad enough to protect religious officials from being compelled by the state to perform civil or religious same sex marriages that are contrary to their religious beliefs.

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d. Waiver of rights i. Syndicate Northcrest v Amselem (2004) Succah. The majority brushed aside the argument of their co-owners that the ii.claimants had waived their religious rights b/c prohibition in condo bylaws. Iacobucci J- wondered whether a religious practice could be waved at all, he wondered if he by law was sufficiently clear to amount to a waiver. Bruker v Marcovitz (2007)- the husband refused to a Jewish divorce for 15 years despite K to do so. Court held against the husband and upheld an award of damages for breach of contract against the husband. Important were the public polices of equality, religious freedom and autonomous choice in marriage and divorce. Outweighed religious rt to withhold b/c contractual obligation.

14) Freedom of Expression 43a. s2(b)- Charter of Rights guarantees to everyone the fundamental freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication. i. Provincial power over speech -does not extend to the regulation or prohibition of political ideas, does authorize the regulation of speech on commercial or local grounds. ( ie tort of defamation- provincial jurisdiction-s92(13)) Definition i. Re: s193 and s195.1 SCC has defined expression-activity is expressive if it attempts to convey meaning. (Prostitution.) Excluded is: purely physical and does not convey or attempt to convey meaning. 1. Choice of language is protected - Ford v Que [1988]- . it colors the content and meaning of expression, the freedom to express oneself in the language of ones choice.

b.

2. Cf. R v Keegstra (1990) Expressive activity that takes the form of violence is not protected by s2(b).ii. Content neutrality 1. R v Keegstra (1990)- governing principle- is the content of a statement cannot deprive it on the protection accorded by s2(b) no matter how offensive it be c. Policy i. Important for democracy - The right of free expression of opinion and of criticism were essential to the working of a parliamentary democracy such as ours. Switzman v Elbling (1957) ii. Instrument for truth - On Liberty by Mills and Oliver Wendel Homes argues suppression of opinion is wrong because a market place of ideas can create the truth with history, social/natural science, medicine and all branches of human knowledge. iii. Instrument of personal fulfilment (must include a communicative purpose) or to allow personal growth and self realization iv. Irwin Toy v Quebec (1989)-they embraced all 3 reasons for protecting freedom of expression. v. R v Sharpe (2001)- instrument of personal fulfilment was discussed by SCC. Child pornography and materials involved made no contribution to democratic government and made no contribution to search for truth.

d. Upheld under s.1 1. Film censorship. NS Board of Censors v McNeil (1978)- SCC upheld provincial censorship of films on the basisthat the exhibition of films was a business within provincial jurisdiction and censorship was part of a local matter. The censors board power was thus limited to apply moral standards to the depiction of sex and violence, issues of primary local significance.

2. Communicating for the purpose of prostitution, upheld under s.1 - Re: s193 and 195.1 3. Border control - Prohibited material can be controlled at the border with customs officials serving as the censors.The federal Customs Tariff Act used to prohibit the importation of immoral or indecent books and magazines. This was struck down to be too vague.

4. Obscenity21

(a) R v Butler [1992]- CC: obscenity= undue exploitation of sex. SCC held that prohibition did offend s2(b) -stated the purpose and the effect of the prohibition was to restrict the communication of certain types of materials based on their content. (i) But - SCC held that the definition of obscene in the CC was a sufficiently clear standard and served sufficiently justified social purpose under s.1 to serve as the basis of the criminal offence 1. Gloss on harmfulness by caselaw= intelligible std so not void for vagueness

(ii) Held that undue exploitation of sex contemplated material that: 1. 1. portrayed explicit sex with violence or 2. 2. portrayed explicit sex without violence, but in a degrading or dehumanizing manner by placingwomen and ( men) in positions of subordination, servile submission or humiliation. These forms of pornography, when not required by the internal necessities of a serious work of art, were intolerable to the Canadian community, not because they offend against morals but because they were perceived by public opinion to be harmful to society, particularly women. 5. Porno (a) The expression cases in the SCC make clear that porn, including obscenity, is protected expression in Canada. Pornography, however defined, can only be identified by reference to the content of the challenged material. Since there is no content-based restrictions on s 2(b) it follows that pornography is covered by the guarantee. (b) R v Sharpe (2001)- child porn- challenge on the constitutionality of the CC offence of possession of child pornography. Child porn was defined as a picture of a child engaged in explicit sexual activity, a picture of a childs sexual organ or anal region and written material that advocated sexual activity with a child. Heldfollowed Butler test and a found a reasoned apprehension of harm, and that was enough. Once harm to children was inferred and failed the Oakes test.

6. Hate propaganda, upheld under s.1 (but not false news) - R v Zundel (1992)(a) Canada v Taylor (1990) Defiance of ct order involving anti-Semitic phone messages. If this order has been made, it can made as an order for the federal Court and then disobedience is then punishable by contempt of court. Jail justified under s.1. (b) R V Keegstra (1990) - teacher/ anti Semitic The court rejected there were any content based restrictions on the s2 (b) right. s2 (b) covered all message however unpopular, distasteful or contrary to the mainstream. The court upheld the law under s1. Successful because it was specifically directed at the wilful promotion of hatred against identifiable groups and it was easy to accept the prevention of harm caused by that activity was an important objective. (c) R v Zundel (1992) false or truths - the CCC used to contain a prohibition of spreading false news. The SCC decided that the deliberate spreading of falsehoods as well as truths, because the question whether a statement is true or false can be determined only by reference to the content of the statement was protected s 2(b). The false news offence could not be justified under s1. false news struck down because statute did not specify any particular type of statement and did not specify what type of injury to the public interest was contemplated. False news was so broad it was hard to that it was difficult to identify an objective that was sufficiently important to justify the limit on the freedom of expression.

7. Assemblies. AG Can and Dupond v Montreal (1978)- SCC upheld Montreal by-law that imposed temporaryprohibition on assemblies, parades, and gatherings on municipal parks and streets. Beetz regulation of municipal pubic domain was within the provincial power over local matters. (s92(16)) none of freedoms of speech, assembly and association of the press/religion is a single matter coming within exclusive federal or provincial competence

8. Professionals advertising- lawyers, doctors and dentists are typically subject to restrictions on advertising on avarying degrees of stringency. The object is to maintain the dignity of a learned profession.

(a) Cf. Heavy restrictions on professional advtsg- Rocket v Royal College of Dental Surgeons (1990)- theregulation prohibited a dentist from advertising office hours and languages spoken. information which would be useful to the public and present no serious danger of misleading the public or undercutting professionalism. The court struck down the regulation. 9. False/bad advertising (a) Canada v JTI Macdonald Corp (2007) court upheld prohibition of false, misleading or deceptive advertising products. This activity was protected by s2(b) but because f