Aboriginal Peoples

Constitutional categories
- Indians, inuit, Metis
Sources of Aboriginal rights-
- Treaties
- Royal Proclamation 1763 – protect aboriginal peoples, confirmed control of government
- Common law doctrine
o Ancient inter-societal customs
o Aboriginal customary law
o Fiduciary role of the Crown
o Basic principles of justice
o Common law doctrine recognized in Connolly, Casimel, Calder and Guerin
- Constitution Act 1982, s.35

When the Europeans first came to Canada they found the aboriginal peoples already here, hunting,
fishing and using the land. Although they set up their own systems of law and society they did not
subjugate the aboriginal people or replace their legal system with their own. They treated them as
trading partners and autonomous societies all living within the protection of the Crown. Even today, the
common law recognizes the aboriginal legal system and customs as being separate from Canadian
common law. For example the adoption process in aboriginal customs does not conform to the
Canadian legal system. In Casimel v. Insurance Corporation of BC the aboriginal custom of adoption
was upheld as being valid and the adoptive parents were entitled to insurance funds on the death of
their son.

One of the more difficult issues has been the legal right to aboriginal land titles. The first recognition of
this right came in 1973, Calder v. AG BC. The court found that aboriginal title was derived from historic
occupation and possession that predates the Royal Proclamation 1763. Although Aboriginal title can be
extinguished by proper legislative under s.91(24) of the Constitution Act 1867 giving federal parliament
jurisdiction over Indians and Indian lands. The nature of aboriginal title is unlike other property rights
and is said to be sui generis. As with other property rights the Crown holds underlying title to all lands.
Aboriginal title is unique if that it is a communal title rather then individual title; it creates a fiduciary
responsibility on the Crown: requires a duty to consult; lands cannot be sold, only surrendered to the
Crown; and requires compensation for lands that are taken by the Crown.

Aboriginal rights were recognized and affirmed in Constitution Act 1982 under s.35. Several other
sections of the Constitution also apply to aboriginal rights, s. 15(1) equality rights, s. 25 protection of
aboriginal rights from Charter guarantees, s.28 that the constitution applies equally to males and
females.

In one of the most activist decisions of the Supreme Court, the court defined in R. v. Sparrow that the
meaning of ‘existing’ aboriginal rights as state in s.35. The right must have existed in 1982,
extinguished rights are not revived; The rights are defined in contemporary form; the
rights are not frozen, meaning not subject to all regulations existing in 1982. This decisions
was important in filling in the gaps of the constitution. In defining the meaning of ‘recognized and
affirmed’ the court indicates that it is a purposive interpretation as it is in determining the scope of all
rights. There are however constraints that must be put in place and that are justified. For example
exhaustible resources need protection and management in general. The onus is on the challengers
to establish the right and the interference with that right. If an infringement is found the court
set out the following test (as s.35 is not subject to the Charter and therefore no s.1 analysis):
Sensitivity to aboriginal perspective taking into account the right as a whole - 1) is the limit
reasonable; 2) does it impose undue hardship; 3) does it deny the preferred means of
exercising the right? In justifying interference with rights (onus on the Crown) the court looks at;
valid legislative objective (federalism grounds); consultation; sensitivity to fiduciary
obligations; as little infringement as possible; availability of compensation. Justifications may
include activities such as forestry, mining, hydro-electric power, protection of the environment,
infrastructure and agriculture. The court went on to set out the order of priority in which rights should
be given – conservation; Indian fishing; non Indian commercial fishing; non-indian sport
fishing.
As laid out in Calder the government has a duty to consult with aboriginal groups whenever their
decision-making could adversely affect an aboriginal right or title. This includes where a right or title
has been asserted but not yet proven. The group must have a prima facie case for proving their case.
In Haida Nation v. BC the Supreme Court clarified what the duty to consult entails. During negotiations
of claims to aboriginal rights or title the Crown must: negotiate and conclude an honourable agreement
reflecting the claimant rights, reconciling prior aboriginal occupation of the land with Crown
sovereignty. In the meantime the Crown may manage resources but must respect potential rights by
consulting and accommodating aboriginal interests. This duty to consult arises when Crown has
knowledge, real or constructive, of the potential existence of the aboriginal right or title and
contemplates conduct that might adversely effect it. The extent of the duty depends on the strength of
the claim and the seriousness of the adverse effects. Some case may require consent and duty to
accommodate. Aboriginal people have a concomitant obligation not to obstruct with unreasonable
positions. A problem that is likely to arise if that it is difficult to know what rights are going to be
asserted and acknowledged in the future and therefore what needs to be protected. Additionally the
Crown is often in a conflict of interest situation. How is the Crown to advance both Crown interests and
provide for Aboriginal rights?

The recognition of the Metis people came in the 2003 Supreme Court decision in R. v. Powley. The
court said that if the Metis could establish a settled area they would acknowledge Metis rights. In order
to do so they showed evidence that the Metis community has had continuity and stability, shared
customs, traditions and collective identity.

The difference between aboriginal right and aboriginal title is that rights are what the aboriginal people
were doing prior to contact and the title is at later point in reference when Europeans asserted their
sovereignty over the lands. In some areas of the country title is governed by treaties and other areas
title must still be sorted out (BC no treaties). The source of aboriginal title comes from physical
occupation prior to sovereignty that has not subsequently been extinguished. Aboriginal title
encompasses the right to use the land in ways not limited only to original use. However such use must
not be irreconcilable with the title itself. For example if the land was used for hunting can’t now strip
mine it.

Aboriginal treaty Rights

- Principles governing court’s approach to treaties:
o Exchange of solemn promises
o Honour of Crown – assume intention to fulfill promises
o Construe ambiguities against the Crown
o Narrowly construe restrictions on Indian rights
o Proving extinction of treaty rights
 Onus on Crown
 Require proof of clear intention

Division of legislative authority

Prior to 1982 the federal government had jurisdiction over Indians and land reserved for Indians under
s.91(24) and s.109. Parliament could legislate to regulate, limit or extinguish aboriginal rights,
including treaty rights. Provincial laws of general application apply to all residents of the province
including Indians. The legislature could not single out Indians or create laws that would affect the
integral part of primary federal jurisdiction under interjurisdictional immunity. With the creation of the
Indian Act s.88 the provincial law of general application are incorporated by reference even though they
effect the core of ‘indianness’ but cannot extinguish aboriginal rights. In cases where the federal and
provincial laws overlap the doctrine of paramountcy is applied. Paramountcy arise when there is a
conflict between valid (1) federal and valid (2) provincial legislation and it frustrates (3) the purpose of
the federal law (eg. displaces the purpose of the federal law as it takes priority (bank of Montreal)).

S.91(24)
- Main reason for inclusion seemed to be a concern for the protection of aboriginal people against
local settlers and thus sole treaty making power given to the Federal government.
 - Actually contains two head of power – first, in respect to Indians whether they live on or off a
reserve. Second, laws related to the lands reserved for Indians
- Only status Indians are governed by the Indian Act, not Metis or Intuit
- Are the laws in pith and substance in relation to Indians? Or are they in relation to property
rights, education etc. Regardless would probably be upheld under Federal power otherwise
s.91(24) would be redundant as government has the power to enact laws in those areas
regarding all persons.

S.35
- Gives constitutional protection to rights created by treaties
- Operates as a limitation on the powers of the Federal and Provincial legislatures

Application of Provincial laws

- General rule is that provincial laws apply to Indians and lands reserved for Indians (eg. Four B
Manu. – provincial labour laws). So long as the law is in relation to a matter coming within a
provincial head of power.
- 5 exceptions to this general rule:
o Singling out
o Indianness – if it affects an integral part of primary federal jurisdiction will be inapplicable –
can’t affect aboriginal or treaty rights;
o Paramountcy – if provincial law is inconsistent with a provision in the Indian Act or any
other Federal law, the provincial law is rendered inoperable
o Natural Resources Agreements – provincial laws cannot deprive Indians of rights to game
or fish for food
o S.35 – Federal and provincial laws of general application must yield to terms of any treaty

Recognition of Aboriginal Rights

Caulder – 1973 – 6 of 7 judges held that rights survived European Settlement
Guerin – 1984 – rights that have not been extinguished are recognized by common law; aboriginal title
gives rise to fiduciary duty
Sparrow – 1990- SCC unanimously recognized right to fish; s.35 provides constitutional protection ;
enlarged fiduciary duty

Definition of Aboriginal rights

Van der Peet – 1996 – legal test created for identifying existing aboriginal rights
Sappier – rights defined in contemporary terms (wood for tepee vs. house)

Self-government
Pamajewon – only applies to activities that took place before European contact and then only to those
that are an integral part of aboriginal society

Aboriginal Title
Five differences as enunciated in Delgamuukw
- Source derives from pre-sovereignty occupation
- Right to exclusive use and occupation for a variety of uses, not just those at time of European
settlement
- Inalienable
- Title can only be held communally
- Title is constitutionally protected

Extinguishment
- By surrender
- By constitutional amendment
- Prior to 1982 could also have been extinguished by Federal (not provincial) legislation- had to be
clear and plain intention to do so
 -
Amending the constitution

History: BNA 1867 > Constitution Act 1867 – contained no general provision for amendment, had to be
made by Imperial Parliament. 1931 Statute of Westminster conferred power to repeal or amend
imperial statutes but the BNA act and it’s amendments were excluded on Canada’s request. Reason
was constitution should be more difficult to amend than other acts.
Consent of provinces – prior to Patriation Ref. (1981) it was unclear. SCC held that consent of the
provinces was not required ‘as a matter of law’ but substantial degree of provincial consent was
required as a ‘matter of convention’. In 1981 Constitution Act 1982 is agreed to by 9 provinces (Que.
Only dissenter) and eliminates UK in process. Quebec opted out of Charter using s.33 to the maximum
extent possible. The vague and unsatisfactory rules laid down in the Patriation Ref. have been replaced
with Part V of the Constitution and are a complete code of legal rules that enable amendments to the
Constitution.
Interpreting the constitution: court treats as ‘living tree’ rather then original intentions in the words are
susceptible to that interpretation (Edwards)

5 Different amending procedures:

1) General amending procedure (s.38) for amendments not otherwise provided for (as well as for
amendments in s.42) requiring assent of the federal parliament (senate and house of commons)
and 2/3 of the provinces representing 50% of the population (seven-fifty). *Has successfully
operated once.
2) A unanimity procedure (s.41) for five defined kinds of amendments, requiring the assent of the
Federal Parliament and all of the provinces
3) A some-but-not –all provinces procedure (s.43) for amendment provisions not applying to all
provinces, requiring the assents of Federal Parliament and only those provinces affected.
4) The Federal Parliament alone (s.44) has power to amend provisions relating to eh federal
executive and House of Parliament.
5) Each Provincial Legislature alone (s.45) has power to amend the constitution of the province

Constitutional Amendments and the Charter of Rights

- Charter is part of the Constitution and can be amended by the general amending procedure
(seven-fifty). Therefore neither s.38 or s.41 or s.43 can be constrained by the Charter. But
provincial laws respecting electoral districts and qualification for candidates is subject to the
Charter.

Proclamation of Amendments – S.39(1) not issued for 1 full year if after adoption of resolution unless all
provinces has assented or dissented. Purpose is to give time for legislatures to consider. Under s.39(2)
if not issued after 3yrs. is invalid. Purpose is to prevent limping along for years gradually picking up
assent.

Initiation for Amendment – by either the Senate or the House of Commons or by legislative assembly of
a province (s.46(1))

Opting Out – is permitted by s.38(3) allows provinces to pass a resolution of dissent and that
amendment will have not effect in that province. All it does is allow province to opt out of an
amendment that derogates from province’s powers, rights or privileges. A revocation of an assent is
possible under s.46(2) up until the time that the proclamation has been authorized.

Compensation for Opting out – s.40 imposes upon the federal government the obligation to ‘reasonable’
compensation to any province that has opted out of an amendment that transfers provincial legislative
power relating to education or other cultural matters from the province to the federal. Purpose is to
ensure that provinces are not pressured financially into accepting amendment.
Charter of Rights and Freedoms – Application of the Charter
Application:
Is person entitled to benefit? – Person, everyone, citizen
Is entity governmental? Test: Control Test (McKinney); Government Function test (Godbout)
Move to specific category (Freedom of expression, Equality etc.)
Justification
Onus of proof – government
Standard of proof
Prescribed by law
Rigour of analysis
Objective of the infringing legislation
Oakes test
Rational connection
Minimal impairment
Proportional impact – objective; positive effects (Dagenais)
Remedy – shifts back to claimant

Control Test: looks to an institutional or structural line with government to determine whether a public
body is covered by the Charter. This is a principled approach to the issue. The majority of the court
has rejected a ‘functional’ link with government as the test. Thus it was irrelevant that the university
and hospital were each performing a ‘public service’, as long as they were performing it independently
of government. And it would be irrelevant if a public body was performing a ‘private’ function if it was
doing so under control of the government.

S.1
- Guarantees rights and freedoms, subject to reasonable limits prescribed by law that can be
demonstrably justified in a free and democratic society.
- Judicial review should proceed in two stages:
o Court must decide whether the challenged law has the effect of limiting one of the
guaranteed rights (interpretation and application of the provision)
o If yes, is the limit reasonable and demonstrably justified (interpretation and application of
s.1)
- Rights derived from the values of a free and democratic society (Oakes)
o Respect for inherent dignity of 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

Burden of Proof
- At first stage court decides in there has been an infringement – claimant has civil standard
burden of proving all elements of a breach Proof beyond a preponderance of probability)
- Second stage – burden of persuasion shifts to government to justify ‘reasonable limit’. Generally
requires ‘evidence’ to be adduced, although occasionally common sense
- Problems – cost of producing evidence on both claimant and government; evidence does not
exist for perceived harm when dealing with ‘reasonable apprehension of harm’;

Presumption of Constitutionality
- Presumption carries three legal consequences: (Hogg says ‘should’)
o Court should exercise restraint in judicial review, striking down the law only if clearly
offends constitution
o Where validity turns on a finding of fact, finding need not be proven strictly by
government, sufficient that there be a ‘rational basis’ for the finding
o Where law is open to two interpretations, one unconstitutional and one constitutional, the
latter should be selected.

Prescribed by law
 - An act that is not legally authorized can never be justified under s.1. In other words, Charter
violations that take place on the initiative of an official acting without clear authority are outside
the protection of s.1 (eg. customs officials holding up Little Sisters material)
- Reflects two values that are basic to constitutionalism and the rule of law:
o In order to preclude arbitrary and discriminatory action by government officials, all action
in derogation of rights must be authorized by law
o Citizens must have a reasonable opportunity to know what is prohibited as that they can
act accordingly
1) Law must be adequately accessible to the public
2) Law must be formulated with sufficient precision to enable people to
regulate their conduct by it, and to provide guidance to those who
apply the law

Discretion
- Where statute expressly or by necessary implication authorized a decision that would infringe the
Charter; the statute itself must be justified under s.1 (Slaight)
- Where a statute confers a discretion in language that is broad enough to encompass a decision
that infringes a right, although it did not expressly or by necessary implication authorize the
discretion, the language should be read down. (Slaight)

Vagueness
- Statute can be ‘void for vagueness’ in prohibitions are not clearly defined
- Vagueness does not provide sufficiently clear standards to avoid arbitrary and discriminatory
application by those charged with enforcement
- Was argued in Irwin Toy; court said that statute provided an ‘intelligible standard’ - which
captures the two values of prescribed by law

Reasonable and demonstrably justified

- Requirements are cumulative, not alternative
- Oakes test – sufficiently important objective; rational connection; minimal impairment;
proportionate effect
- Sufficiently important objective: Identification
o Can look at legislative history, but often look at the statute itself as the only supporting
evidence
Eg. Andrews – objective to restrict entry to legal profession to those who are
qualified to practice law OR to restrict entry to the legal profession to person who
are Canadian citizens (high vs. low generality)
o Courts have leaned towards higher generality otherwise nothing left for the proportionality
section of the Oakes test
- Sufficiently important objective: importance
o must meet the standard implied by the words ‘free and democratic society’
o relate to concerns that are pressing and substantial
o must be directed to ‘the realization of collective goals of fundamental importance’
- Rational Connection
o How well the legislation is ‘clearly designed to achieve the objective in question’
o Essence of rational connection is a casual relationship between the objective of the law
and the measures enacted by the law (eg. ban tobacco advertisting = reduced
consumption)
o In RJR dissent said that common sense connection between advertising and consumption
was sufficient to satisfy rational connection
- Minimal Impairment
o Should impair as little as possible the right or freedom in question
 Too drastic
• Ford – French only signs to protect French language
• Black v. AB Law society – prohibiting partnerships with out or province
lawyers
• Edmonton Journal – prohibition on pub. of matrimonial litigation to protect
privacy
 • Rocket – RCDS ban on advertising by dentist to protect professional standards
• RJR – Federal ban on advertising to reduce consumption
- Proportionate Effect
o Proportionality between the deleterious and salutary effects of the measure (Dagenais)
o Is the Charter infringe too high a price to pay for the benefit of the law
Constitutional Principles
*Federalism
Supremacy – the constitution is the supreme law and any ordinary law that is inconsistent with it is of
no force and effect. Constitution act 1982 shifted Canada from legislative supremacy to constitutional
supremacy. Is entrenched beyond the reach of majority rule. Implications, hierarchy of law,
adjudication of disputes, counter-majoritarianism (protect minority), amendment by super-majority.
Rule of Law
- A framework of positive, normative laws is required for the effective governance of society
(Manitoba Ref.)
- All exercises of public power must be authorized by law and exercised within the limits of the law
for a proper purpose (Roncarelli)
- Every person is subject to the same laws and tried in the ordinary courts
- Limits on the principle (BC v. Imperial Tobacco**
Parliamentary supremacy – subject to the constitution, parliament or legislature holds all legitimate
public power and may, by enacting a statue
- Amend or replace common law or
- Delegate powers to subordinate bodies
Constitution includes (s.52(2)) – Canada Act 1982, acts referred to in the schedule, any amendment to
any act – Constitution 1867, 1982, Charter, aboriginal rights, equalization & amendment, other statutes
and instruments.
Unwritten constitution – common law, crown prerogative, in absence of express constitutional provision
the court may identify and rely on fundamental constitutional principles, express principles may be
replaced by conventions recognized by all the political players.
Constitutional Principles
- Promote legal certainty and predictability and provide a basis for judicial review
- Supreme over unwritten principles, but not exhaustive
- Unwritten are part of the framework – assumption on which text is based
- May assist in interpreting text but does not replace it
- Principles may fill gaps in the text to provide an exhaustive legal framework
- Principles have the force of law and can be a source of substantive limits on the powers of
government
- Principles emerge from preamble – similar to that of the United Kingdom
- Historical context
- Previous judicial interpretations
Conventions: recognized as binding by political actors, generally not legally binding and not enforced by
courts, some give rise to substantive legal obligations, have a powerful normative force.
Criminal Law Power
Federal:
- Source: s.91(27) Criminal Law & Procedure
- Definition: two elements: 1) criminal public purpose (substance) – protect peace, order,
security, health or morality (margarine Ref.); 2) Prohibition with a penalty (Form) –
some activity must be prohibited
- Impact on provincial legislation: Federal power is exclusive and plenary and its impact on the
scope of provincial powers is irrelevant. Only exception is if criminal law includes significant
regulatory scheme, then provincial powers have to be considered.
- Regulatory: Not so intrusive as to upset the balance of powers and still met the formal
requirements of criminal law.
- Invalid: cannot be used colourably (purport to be criminal when really regulatory- Margarine Ref.)
- Prevention of crime: Prevention of future crime has been upheld as valid (Swain – detention of
criminally insane, Sex offender registration)
- Civil Remedies: upheld as long as they are ancillary to criminal law (Chatterjee)
Provincial:
- Concurrent legislation: under dual/double aspect doctrine both Federal and Provincial can be
valid.
o Test: if one requires you to do something that the other prohibits, or if
provincial law displaces federal law, will be held as inoperative to the extent of
the conflict but valid otherwise (Can. Western bank, Chatterjee). If you can
comply with both, the both valid (Ross).
- Supplement Federal law: No. Can add regulatory aspect but no penal sanctions (Morgentaler,
Westerndorp)
- S. 92(14) Administration of justice – includes maintenance and organization of provincial courts,
of civil and criminal jurisdiction
- S.92(15) Imposition of punishment by fine, penalty or imprisonment allows for:
o Degree of responsiveness to local conditions (McNeil, Montreal bylaw)
o Suppression of conditions that lead to crime (Bedard, Chatterjee)
o Regulation of use of property ( Rio Hotel)
o Raise revenue to compensate victims, offset costs of admin. (Chatterjee)
o Inquiries into alleged wrongful acts or systemic failures – Inquires, Human Rights
commission
 Must stop short of finding wrongdoing by specific individual; if doing so will deprive
wrongdoer of protection from self-incrimination

Analysis
Section 91(27) gives the Federal Parliament the jurisdiction to pass laws in relation to criminal law
and procedure. The administration of these powers is excluded from the scope of s.91(27) and lies
with the provinces through s.92(14). Section 92(14) provides the provinces with jurisdiction over the
‘administration of justice’. This includes such authority over policing, prosecution of criminal
offences, provincial inquiries. Both the provincial and federal government play a role in the
detention of prisoners. The Provincial government under s.92(6), have exclusive power to establish,
maintain and manage public reformatory prisons. Persons sentenced to two years or less reside in
provincial detention centres. The Federal government under s.91(28) is responsible for the
establishment, maintenance and management of penitentiaries.

Defining Criminal Law

The strict definition of criminal law is that it must meet two criteria. One, that there is a criminal
public purpose as referred to in the Margarine reference. This means that parliament must be
seeking a way to punish or suppress conduct that threatens the peace, order, security, health or
morality of society. Second, the law must include a prohibition with a penalty. Some type of activity
must be self-prohibited and the result of breaching that prohibition would be a penal sanction.

The court, in RJR MacDonald, stated that it is a ‘well-established principle that the definition of the
criminal law is not ‘frozen as of some particular time’. In doing so they reject the original intentions
doctrine in favour of allowing it to expand with the changing society. In Hydro Quebec, the court
expanded the list of grounds that constitute public purpose to include the protection of a clean
environment. The court unanimously stated that ‘it is within the discretion of parliament to
determine what evil it wishes by penal prohibition to suppress and what threatened interest it
thereby wishes to safeguard’. In making this statement the court has left the door wide open for an
expansive and seemingly unconstrained power to enact criminal laws at will, making it the most
flexible and muscular of all federal powers.

Limits on Federal Power

While it does appear that the federal power to enact criminal law is unconstrained, there are some
known limits. Federal criminal law power is limited to laws that consist of a prohibition with a
penalty. Strictly regulatory remedies will prove to be invalid or are less likely to be upheld. The
more elaborate the regulatory scheme is the less likely it will be valid. But even this supposed
‘restriction’ on regulatory schemes under criminal law has not been strictly upheld. In cases where
the regulations are considered to be ancillary civil remedies, the court has upheld them as valid
exercises of criminal law power. This was the case in RJR MacDonald where the regulation of unsafe
food and products was upheld on the basis that it was aimed at public health. More significantly, in
Hydro Quebec the court upheld the Canadian Environmental Protection act which included an
administrative process and a comprehensive power for regulating toxic substances. The majority
concluded that the only limit on the criminal law power was that it can not be used to colourably
invade provincial jurisdiction. In upholding the legislation they expand criminal law power by
removing the constraint of prohibition with a penalty and undermine other decisions that established
divided jurisdiction over the environment. Similarly, in the Firearms reference, the court held that
laws don’t have to take the traditional form of criminal law, prohibition with a penalty. If they are
aimed at the prevention of crime they can be upheld as valid exercise of federal criminal law power
(see also Swain, Boudreau). They justify this ruling by concluding that the intrusion into provincial
jurisdiction is not so excessive as to upset the balance of federalism.

Recently the Supreme court, in Chatterjee, acknowledges the validity of the criminal law power to
support remedies of civil nature by allowing forfeiture to be held as a valid criminal law power. The
court supported the concurrent provincial and federal legislations, permitting overlap and avoiding
enclaves of interjurisdictional immunity.

Where the courts have been generous in their interpretation of the criminal law power in reference
to regulatory schemes and civil remedies, they have maintained their position that colourable
legislation will be held invalid. Attempts by the federal government to regulate an industry within a
province (Insurance Reference) and to prohibit the sale of margarine (Margarine Ref) have failed to
be upheld as valid exercises of criminal law power. In the Margarine reference the court agreed that
the law was criminal in form (prohibition with a penalty) but not in substance (margarine is not a
health or safety concern)and as such it encroached on provincial jurisdiction.

Provincial Power to Enact penal sanctions

Section 92(15) is an ancillary power that cannot uphold provincial laws on its own. It can support
laws that are validly anchored in some other head of provincial power. A broad interpretation has
allowed the provinces to create concurrent legislation with Federal criminal law. Section 92(15)
enabled provincial legislatures to address a number of issues:
A degree of responsiveness to local conditions allowing for public order and morality to be legislated
provincially (McNeil, Montreal bylaw)(s.92(16)); The use of property to suppress the conditions that
lead to crime (Bedard); Regulation of the use of property and acts that cannot be performed on that
property (Rio Hotel)(s.92(13)); Raising revenues to compensate victims of crime and offset the
administrative costs (Chatterjee). The court now applies a more generous approach to provincial
legislation dealing with public order and morality, through the double aspect doctrine as long as
there is a valid provincial purpose (Rio Hotel, Banks).However, if the legislation is in pith and
substance an attempt to punish socially undesirable conduct it will be ultra vires as an invasion of
criminal law power (Westendorp, Morgentaler).

Provinces do have jurisdiction over provincial inquires to allow them to investigate alleged wrongful
acts or systemic failures committed in or arising in the province. They are constrained though by
stopping short of finding actual wrongdoing by a specific person if doing so will deprive that person
of their protection from self-incrimination (Starr).

Food and Drug Act

The Labatt decision is unfortunate in precluding a national regime of compositional standards for
food. Large manufacturing companies have complained that having to comply with various
provincial regulations is costly. Criminal law should uphold legislation that is enacted for the
prevention of deception. In Labatt the compositional standards legislation could not be upheld
under criminal, pogg or trade and commerce and thus ruled invalid.
Delegation of powers

Federal and provincial powers are both plenary and ample within the limits prescribed by section 91
and 92. The first case to challenge this was Hodge v. the Queen on the basis that the powers had been
delegated by the UK and therefore could not be sub-delegated. The Privy Council rejected this claim
under provincial heads of power. In Gray, the SCC had to determine the validity of the delegation of
legislative power contained in the war measures act. The act empowered the Governor in Council to
proclaim a state of war or insurrection. In effect the War Measures Act transferred to the federal
cabinet virtually the whole legislative authority of parliament for the duration of the war. The court held
that even a delegation as sweeping as this was valid. The court also indicated that not every power of
delegation would be valid – abdication, abandonment or surrender of parliaments powers would be
invalid. The only power that appears as though it cannot be delegated is the federal power to levy
taxes. As s.53 requires that any tax bill originate in House of Commons and s.54 provides that the
House shall not pass any bill not recommended by the Governor General.
Distribution of powers- Interpretive Principles
Intra vires – within the power of the authority to enact (valid)
Ultra vires- not within the power of the authority to enact (invalid)

Analysis
If the legislation is in relation to a class assigned to the province then POGG is spent unless the is
considered an emergency or reclassified under the national dimensions doctrine. Even if it comes
within a class under s.92, look at s.91 and if also there it is the exclusive realm of the feds. For
example, contracts come under s.92 as a matter of civil rights. However if it is a bank contract, then it
comes under s.91 as banking is under federal jurisdiction.

Characterization of Laws
- Identify the ‘matter’ (pith & substance) of the statute
o Consider statutory context
o Purpose of the legislation (history and reports, white papers)
o Effects of the legislation (factual data, assess colourability)

Three types of arguments can be used to challenge statutes on the grounds of division of powers. First,
a challenge to the validity of the statute on the basis that in pith & substance is beyond the jurisdiction
of the enacting legislature. This would mean the legislation is struck down as being ultra vires. Second,
limits the applicability of the statute, and read down so as not to touch matters at the core of the other
level of governments jurisdiction. This is known as interjurisdictional immunity which limits the
application of provincial statutes to protect the exclusivity of federal power (does not work in the
reverse). Third, limits the operability of provincial statues. In cases where the provincial statue is valid
but conflicts with a valid federal statute to the same facts, the provincial legislation will be rendered
inoperable. The doctrine of federal Paramountcy works to protect the primacy of federal legislation.

Criteria for Choice in Federal System – R. Simeon (pg 261)

Community – vision of ideal or preferred community
- Ability to defend and maintain a balance between regional and national political communities
Democratic theory – does federalism promote democracy
- Protect liberty and minority rights against majority
Functional effectiveness – does federalism enhance or frustrate effective policy and respond to citizens
needs
- Fed and prov. Gov. different elements in a single system – division of labour

Overlap
Some powers clearly overlap and create a tension between the federal and province statutes.
Exclusivity has generally been applied in economic regulation (watertight compartment). But any time
a power is exclusively allocated to one government it can create a legislative vacuum (See R. v.
Morgentaler, 1993) where the power to enact legislation lies with one body who is not acting. Allowing
overlap maximizes the ambit of legislative power and has generally been applied in matters of social
and moral order. The allowance of overlapping legislation is a reflection of judicial restraint in striking
down legislation. However this may lead to a reduction in provincial autonomy and power as the
federal legislation will always be paramount when in conflict with the provincial legislation. A common
example of overlapping jurisdiction is the highway traffic act.

Classifying Legislation
The Pith & Substance doctrine, focuses on the ‘matter’ for purposes of classification within one of the
heads of power.The first stage in classifying legislation for the purpose of federalism is
determining the pith & substance of the legislation. This is determined by reference to both the
purpose and effects of the statute. Courts will look at context (purpose)of the statute, its social
and economic purpose as well as background and circumstance; its legal effects, on rights
and liabilities; its actual or likely practical effects. It is an interlocking process as opposed to a
purely logical process. It is a consideration of principles and application of common sense. In
determining the background context and purpose of legislation that courts have used extrinsic
evidence such as : related legislation; evidence of the ‘mischief’ addressed by the
legislation; history of the legislation; reports and materials submitted; legislative debates
and speeches. Second stage involves defining the scope of the competing heads of power
that the class of subject may fall within. This involves looking judicial precedents that have given
meaning to the words used in s.91 and s.92. Third, the court determine if the statue is intra
vires or ultra vires ( a mechanical step). As (2) and (3) are generally settled law, the matter often
turns on the characterization of its pith & substance. The pith & substance doctrine allows for both
levels of government to enact valid laws that have impacts on other levels of government stating that
the overlap is merely incidental to the central feature of the legislation. Provincial legislation must still
be anchored in the heads of provincial power to be found valid legislation. Classification is not an exact
science, in fact there are many consideration that judges take into effect. Whether the power is more
efficiently exercised by one head of government over the other, mobility of resources, access to rights,
local conditions, protection of minorities and to some extent the personal preferences of the judge
themself.

The Double Aspect doctrine was developed in Hodge v. The Queen and state that subjects which in
one aspect and for one purpose fall within s.92, may, in another aspect and for another purpose fall
within s.91. The doctrine is applied when the multiplicity of aspects if real and not merely nominal and
when the challenged features are of roughly equivalent importance (Multiple Access). In applying this
doctrine the courts are enlarging the number of activities that are subject to de facto concurrent
legislative jurisdictions (eg. Highway traffic act). If there were to be a conflict the federal would
paramount, although the provincial would not be void, simply inoperable to the extent of the conflict.
This doctrine has been acknowledge in cases involving moral regulation of videos, nude dancing;
support for custody and divorce, interest rate: insolvency, insider trading in federal corporations
(Multiple access) but has not been applied to trade or labour relations (Law Society of BC v. Mangat).

Incidental effect doctrine states that valid federal pr provincial legislation can have an incidental
effect on matters within the jurisdiction of the other level of government. In Carnation Milk. v. Quebec
Argi. Marketing Board, the provincial legislation aimed at creating local marketing plans was found to be
valid legislation even though it had an incidental effect on the federal power over intraprovincial trade.
The doctrine has the effect of moderating the impact of exclusivity (watertight compartments).

The Necessarily incidental doctrine is applied when the challenged provision is ultra vires in itself,
but is necessary to the effectiveness of a larger legislative scheme which is intra vires. In Gm v. City
National Leasing, a civil right of action, which is normally within provincial jurisdiction, is added to a
valid federal trademark statue, it may be valid as ‘necessarily incidental’ to the effective operation of
the federal regime. In determining if this doctrine applies; 1) the provision encroaches on the
provincial jurisdiction; 2) the more it intrudes on provincial jurisdiction, the more closely it
must be ‘functionally related’ to the general objective of the valid federal regulatory
regime; functionally related is less strict then necessarily incidental.
**Global securities corp v. BC securities commission – obiter says that provincial legislation can be held
as necessarily incidental to the larger scheme of Securities regulation under federal powers. Pilkington
say that can’t be right – provinces can’t override and legislate something that comes within federal
jurisdiction. I think - S.92 powers are carved out of s.91…and federal Paramountcy and watertight
compartments regarding economic regulation would prevent the provinces from relying on the
necessarily incidental doctrine to infringe on federal jurisdiction.

Interjursidictional immunity emphasizes exclusivity of jurisdiction and comes into play in situations
where a provincial law is clearly valid in most of its applications, but in some of it’s applications it
overreaches. In doing so it affects a matter falling within federal jurisdiction. This protects the certain
matters in the federal jurisdiction from the impact or interference with valid provincial laws. In these
cases the provincial law is not allowed to have a double aspect or even incidental effect on the federal
power. The doctrine was developed in cases involving federally incorporated companies. In cases
where the legislation does conflict, the provincial legislation will be read down. Two test have emerged
from this doctrine: 1) if the provincial legislation applies directly to a federal undertaking, it
will not apply if it affects a vital part of the operation or management of the undertaking; 2)
if the provincial legislation applies indirectly, it will not apply if it sterilizes (federally
incorporated companies) or impairs the federal undertaking (transportation &
communication). This has more recently been applied to federal undertakings (Irwin Toys). Doctrine
is out of step with the other overlap approaches that have found favour in the courts and is somewhat
unnecessary as the Paramountcy doctrine would have a similar effect. In this case the feds will have to
monitor all provincial legislation to see if any of it affects federal jurisdiction and counter-legislate. In
McKay v. the Queen the city prohibited lawn signs and the issue raised was did the bylaw apply to
federal election signs. The majority stated that interpretation where two possible meanings, prefer the
one that protects validity. But that legislature could not do indirectly what it could not do directly
(prohibit federal election signs) and they read down the bylaw. The dissent found the legislation valid,
not aimed at a federal matter and could apply the incidental effect doctrine. Today this case would
likely be challenged under Freedom of Expression. Since the Charter, the courts have declined to use
interjurisdictional immunity to protect rights.

Applies to enterprises within s.92(10)(a), enterprises in interprovincial transportation and

communication, enterprises falling under other heads of s.91 – postal service, banking, aeronautics,
navigation, military, federal parks, Indians.

In Canadian Western bank the court narrows the use of Interjurisdictional immunity (II) stating that
broad use of the doctrine is inconsistent with flexible federalism. It should be restricted to precedents,
federal things, person or undertaking and where the protection is necessary and indispensable.
Otherwise they use the Paramountcy doctrine. Where II is available it will now only apply where the
challenged legislation would impair (not merely affect) the core of the undertaking.

Bell #1
Broadens test for interjurisdicitonal immunity from sterilization or impairment to include affects vital
part of management or operations. Criticism of decision that is it inconsistent with pith &
substance/incidental effect approach. Could also have used Paramountcy not immunity. But the
decision is endorsed in Bell#2.

Paramountcy is used in cases where there is a conflict between valid federal and valid provincial laws.
The federal law will be held paramount and the provincial law is inoperative to the extent of the conflict.
A conflict, by narrow reading, is if compliance with provincial law would require a breach of a federal
law. The broader reading is the provincial law is inoperative if it would interfere with the policy
objective of the federal law. Where it is possible to comply with both laws there is not conflict (Ross v.
Registrar of Motor Vehicles).

When characterizing laws the courts are concerned with the substance of the law not just the form. The
colourability doctrine is raised when the statute, on its face purports to be aimed at matter within the
jurisdiction of the legislation body but in reality is aimed at a matter outside the jurisdiction. Essentially
the doctrine says that you can’t do indirectly what you can’t do directly. There have been numerous
attempts by both the federal and provincial governments to pass legislation that infringe on the other’s
jurisdiction. In some cases the laws have been struck down as being colorable, for example in Nova
Scotia the proposed legislation banning privatization of certain medical procedures on the basis of
maintaining high quality health care. The legislation was in fact aimed at filling the gap created when
the Federal government decriminalized abortion. The province sought to enact legislation that would
prevent Dr. Morgentaler from opening an abortion clinic in Nova Scotia. The doctrine has been used
denied application in other cases such as provincial legislation to ban advertising to children (Irwin Toy).
In that case the province, who does not have jurisdiction over television programs or advertising, but it
does have jurisdiction to prohibit certain types of advertising in all media and thus valid and effective as
a bar to television advertising.
Economic Regulation/Trade & Commerce
Despite the broad nature of the wording in s.91(2) the Trade and Commerce powers have been limited
by judicial interpretation and thus narrowed the scope of the clause. In contrast the provincial powers
as delegated in s.92(13) over property and civil rights is a broad power that often comes in conflict with
Trade and Commerce. There are also some federal powers embedded in s.92.10(c) that provides power
over things that are for the general advantage of Canada or two or more provinces. In addition s.121,
which guarantees the free movement of goods and s.6 which guarantees mobility rights to persons both
have an affect on the economic regulations of the country. It has often been a trade off between
building a strong central government and the individuality of the provinces. There are arguments to be
made for creating a stronger federal union in areas such as national consumer standards,
environmental standards, and removal of barriers to interprovincial and international trade. On the
other hand unfair discrimination against a province, some protection from US interference in
occupations, development of social policy, political autonomy and addressing local needs is often best
done at the provincial level. Many of the cases that give rise to consideration under these heads of
power also bring in the s.91 opening clause of Peace, Order and Good Government. Problems have
arisen over areas that seem to fall within both jurisdictions and the solution has been to enacting
mirroring legislation through mutual modification. The wording of s.121 would suggest that it
guarantees the free movement of goods across provincial borders. Yet it has been interpreted in an
originalist fashion to prevent provincial tariffs.

There was an attempt after the Charter was introduced to find some protection of economic rights
under s.6. The case law has not supported this effort. Section 6 has been applied to respond to
concerns and ensure one of the conditions for the preservation of basic dignity of the person. In
supporting mobility rights on the notion of equality of treatment and absence of discrimination based on
residence past or present. The freedom to pursue a livelihood is essential to self-fulfilment as well as
survival. A classic example of this came in the Black & Co. v. Law society of Alberta in which Alberta’s
prohibition of partnerships between residents and non-residents was held to be an infringement of
s.6(2)(b). Conversely, the majority held that there was no infringement of s.6 in a case where the NWT
were excluded from a national egg marketing scheme due to quotas created more then 20 years
previous. In their judgement the court stated that s.6 was a guarantee of individual mobility rights and
does not extend to economic factors and products. Although s.6 guarantees mobility rights, it does also
offer some protection to the residents of a province under sub section 4. If a province is suffering
economically then it can say that new residents cannot come and take up jobs until long term residents
are employed to a level matching the general unemployment rate of the country. The province can also
create job programs that are available only to person who are residents of the province.

The is leading case Citizen’s Insurance Co. v. Parsons (1881) in which two interpretive principles
emerged that resulted in the ‘wateright’ compartments approach we still see today. The narrow reading
of s.91.2 to give scope to s.92.13 has resulted in the watertight compartment approach and has gaps
and dysfunction. The two principles, mutual modification and collocation of powers, resulted in
provinces having intraprovincial trade and federal government being responsible for international trade,
interprovincial trade and the general regulation of trade throughout the country. Federal parliament
has also been restrained from regulating any single industry or business as that comes within the
provincial powers (Insurance Ref.). The solution to this problem has been the enactment of mirror
image legislation. Other gaps created in the grain trade, oil industry and potash have had different
solutions. In the CIGOL and Potash cases the issue was that the province was regulating the trade and
prices of a product that was largely going into International trade.

Distribution of Jurisdiction
Federal
- Trade and Commerce s.91(2)
o International trade, interprovincial trade, general regulation of trade throughout the
country (Parsons)
- Taxation, banking, Criminal law (product safety standards), interest, bankruptcy and insolvency,
patents, copyrights, interprovincial and international works and undertakings, currency.
- S.92.10(c) – for the general advantage of Canada or two or more provinces
Provincial
- Property and Civil Rights s.92(13)
 - Intraprovoncial trade
- Natural resources
- Test – to what extent they focus on and regulate the market coming in from outside
the province?
- Solution – Feds and Province enact mirror image legislation and delegate it to the same national
board (they can’t delegate to each other).

Equality
Discrimination Outline:
Sexual Orientation – Egam, Vriend, M v. H, Ref. re Same Sex Marriage
Disability – Eldridge, Auton, Granovsky
Citizenship – Andrews
Aboriginal status, residency – Lovelace, Corbiere
Age – McKinney. Law, Gosselin
Martial Status –Miron, Hodge
Contextual factors: Law
- Pre-existing disadvantage
- Actual need – Winko
- Amelioration of greater disadvantage – Granovsky
Informed generalizations vs. stereotypes – Law, M v. H
Amelioration and stereotypes – Lovelace, Kapp

Analysis- the new Charter

Prior to April 1985 (s.15 did come into effect until 3yrs after the rest of the constitution) there was
limited protection from discrimination by both the Federal and Provincial legislatures. Under the
Canadian Bill of Rights, many challenges were decided on the basis of ‘valid federal objective’. The
trouble with that was that the court never defined what a valid federal objective was. As well they did
not relate the valid federal objective to the provision itself but to the act as whole. Essentially, the
court was deferring to parliament’s judgement in establishing legislation.

In drafting the new Charter of Rights and freedoms, the drafters looked at the problems with the Bill of
rights as well as looking at the US model. Under the Bill of rights there was a guarantee of ‘equality
before the law and the protection of the law’. In A.G. Canada v. Lavell (1973) this was interpreted to
mean there was a guarantee as to the rule of law, not equal treatment under the law. Therefore in
drafting s.15 they include ‘equality under the law’. Later, in Bliss v. A.G. Canada (1979) the court
distinguished between imposing penalties and conferring benefits on a challenge of the unemployment
benefits versus maternity benefits. This led to the inclusion of ‘equal benefit of the law’ in the drafting
of s.15. The history of decisions such as Bliss led to significant lobbying by women’s groups for the
inclusion of s.28 (guaranteed equally to male and female persons) in the new Charter. Only one case in
the Supreme Court was held to contravene the ‘equality before the law’ clause and therefore ruled
inoperative (Regina v. Drybones).

In looking at the US constitution the drafter included the same phrase ‘equal protection of the law’ as
does the 14th amendment of the US constitution. The issues around this clause have been plentiful due
to the fact that it does not contain a list of prohibited grounds and it silent on affirmative action. This
has created substantial debate about the constitutionality of programs designed to ameliorate
conditions of disadvantaged groups. Several other changes from the Bill of Rights were included in the
new Charter, including disability, the opportunity for expansion of analogous grounds, a clarification of
affirmative action and restriction of the application of s.15 to individuals and not corporations.

Application of S.15
The first case decided by the Supreme Court after s.15 came into effect was LSBC v. Andrews (1989).
The court began to develop the rules (tests) that would govern the application of s.15. The test that
came out of Andrews was a three part test requiring 1) a distinction in treatment; 2) that results
in the imposition of a burden of denial of a benefit; 3) on the basis of an expressly
prohibited ground or one analogous thereto. Several other principles emerged from Andrews as
well: That equality does not require sameness of treatment; differential treatment is not necessarily
discriminatory; facially neutral laws may be discriminatory (adverse impact); not necessary to establish
an intent to discriminate, focus on the effects; rejection of the ‘similarly situated’ test; requires
enumerated or analogous grounds; does not apply to arbitrary or unreasonable distinctions. The tests
use of enumerated or analogous grounds immediately restricted the judicial review of any statute that
did not employ a listed or analogous classification system. After the Andrews decision, the courts were
troubled by the use of the word ‘relevant’ to the legislative purpose. For example, if the purpose of the
law was to support the institution of marriage then the exclusion of common law and same sex couples
should not infringe s.15.

What constitutes an analogous ground?

An analogous ground is any immutable personal characteristic (skin colour, height) or characteristic
that is changeable by only at unacceptable cost to personal identity. They are not voluntarily chosen
by individuals, but are inherited. They describe what is rather than what a person does. The first
analogous ground to be recognized was citizenship, in Andrews. Second was martial status in Miron.
Neither of which are inherently immutable. The third was sexual orientation in Egan, which led to the
decision in Vriend, adding sexual orientation and same sex marriage laws. Several other unsuccessful
attempts have been made to expand analogous grounds to include, place of residence (exception for
residence on an Indian reserve), occupation, substance orientation.

Analogous grounds
Factors the court has considered in deciding whether a personal characteristics should be considered an
analogous are: 1) related to the essential dignity and worth of the individual; 2) associated
with patterns of historical disadvantage and prejudice; 3) immutable characteristic or one
over which one may have limited but not exclusive control. In Corbiere v. Canada (1999) the
court also recognized place of residence as an analogous grounds for aboriginal person only.

After Andrews
For nearly a decade after the Andrews decision the Supreme Court remained split over the test for s.15
and the use of s.1 and the role of the court in exercising judicial review of legislative policy. In a trilogy
of cases heard the court split into three camps. One was faithful to test developed in Andrews. Another
added an additional layer to the s.15 analysis that required that the personal characteristic at issue
must be irrelevant to the functional values underlying the challenged law in order to be found
discriminatory (eg. Support of marriage). And the final group recommended that the focus on grounds
of discrimination be abandoned in favour of the effects of discrimination. Essentially eliminating the
search for enumerate or analogous grounds and instead looking at the vulnerability of the group, the
fundamental interest at stake and more likely a difference in treatment will be discriminatory.

Law v. Canada – Leading case on s.15

Finally in 1999 the members of the Supreme Court come together and set a new test for s.15 that they
call agree on. They began by stating the correct approach is a purposive one and identify the purpose
as the prevention of the violation of essential human dignity and freedom through the imposition of a
disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all
persons enjoy equal recognition at law as human beings or as members of Canadian society, equally
capable and equally deserving of concern, respect and consideration. Where legislation does not
violate human dignity or freedom of a person or where the differential treatment also assists in
ameliorating the position of a disadvantaged group, it will not likely constitute discrimination.

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with
physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment
and premised upon personal traits or circumstances which do not relate to individual needs, capacities
or merits. Human dignity is harmed when individuals or groups are marginalized, ignored or devalued.

Three central issues emerge as the test of defining an infringement of s.15. 1) does the law impose
differential treatment (or have adverse effect) by denying a benefit or protection; 2) on the
basis of an enumerated or analogous ground; 3) and in a manner that discriminates
(violates human dignity)? The court goes on the define the four contextual factors of discrimination.
1) whether the excluded group has suffered pre-existing disadvantage, stereo-typing,
prejudice or vulnerability; 2) whether the law provides for assessment of claimants’ actual
needs, capacities or circumstances; 3) whether the distinction in treatment is for
amelioration or benefit of those who are more disadvantaged than the claimants; 4) the
nature and scope of interest affected.

The effect of this new test, in particular, the question of demeaning human dignity has increased the
burden on the claimant and has left little work for a s.1 analysis. In particular this means that there is
no minimal impairment test applied assessing if the legislation could have achieved the same outcome
without impairing rights. The ‘human dignity’ or correspondence between the grounds on which the
claim is based and the actual need, capacity or circumstance has been the deciding factor in almost of
the cases since Law. This comes down to an assessment by the court of the legitimacy of the statutory
purpose and the reasonableness of using a listed or analogous ground to accomplish that purpose. In
an obiter dictum statement in R. v. Kapp the court had a change of heart on the requirement of human
dignity as an essential element of the s.15 analysis. The court stated that although human dignity is an
essential value underlying s.15, as a legal test it was confusing and difficult to apply which became an
additional burden on claimants rather then the enhancement is was intended to be. Although this did
not serve to overrule Law, it has simply changed the analysis from one of Human Dignity to one of
discrimination using the same four contextual factors. The interesting thing is that Kapp decision was
based on s.15(2) and did not require an s.15(1) analysis. Leaving the murkiness of how the court will
apply this test to future s.15(1) challenges.

Comparator Group
In order to establish discrimination under s.15 the claimant must show that they have suffered a
disadvantage due to a personal characteristic. The appropriate comparator group is one that mirrors
the claimant’s characteristics relevant to the benefit, other then the allegedly discriminatory
characteristic. In a series of cases ranging from 2000 to 2006, the cases are decided on the basis of the
comparator group. The court says that claimants should choose the appropriate comparator group but
that the court can substitute an alternate one at their discretion. In Hodge v. Canada (2004) the court
say the appropriate comparator group for a common law couple who ceased cohabitating is a married
couple who have divorced. As divorced spouses are not eligible for benefits, neither are former
common law spouses. Exclusion from a targeted program has been upheld as being valid legislation
that does not discriminate (Auton). The outcome turned on the way in which the comparator group was
defined. Differential treatment has also been held not to be discriminatory if it has ameliorative effects
of more disadvantaged individuals and does not demean the dignity or undermine the worthiness of the
claimant (Granovsky).

Differential Treatment
There are two heads under which differential treatment may be found. First, a law may explicitly
discriminate on its face. Meaning that the direct language of the law expressly excludes a group
(Vriend). This is often referred to as formal equality. Second, a law can implicitly discriminate in its
effect on a group(Eldridge). In cases where the law has an adverse effect on the persons defined or
prohibited in the law. Because s. 15 requires substantive equality and not merely formal equality, this
type of indirect discrimination would be found to be a violation of S.15 and the law would be invalid.
This requirement for substantive equality has allowed the courts to delve deeper into neutral laws and
identify adverse effects on a class of persons. It need not be established that the law was passed with
the intention of discriminating; simply that it has had the effect of doing so. However, the purpose of
the law will always be relevant to justification under a s.1 analysis. Only two claims o f indirect
discrimination have been successful to date, the hearing-impaired in Eldridge and the gays and lesbians
in Vriend.

A different kind of adverse effect happens when a neutral law has a disproportionate impact on
members of a disadvantaged sub-group . Empirical and statistical evidence, although more difficult to
prove, is required to show that the claimant group is statistically discriminated against. The court has
denied a disparate impact on women who statistically bear the burden of the greater portion of
childcare but couldn’t prove they bear the greater portion of costs (Symes). Conversely they have
overruled a neutral law that provided for the same physical test requirements for male and female
firefighters (Bc v. BDGEU).

Remedy
For under-inclusive/over-inclusive legislation the courts can strike down the legislation; can sever the
infringing provision and leave the rest of the legislation intact; they can read in words or read down the
provision; or they can combine any of the above with a temporary suspension. In making the decision
the court will need to factor in if the remedy can be stated precisely, if there are budgetary implications
and the overall effect of the remedy on the remaining portion of the legislation, the extent to which the
remedy would interfere with the objectives and the significance or long-standing nature of the
remaining portion. In striking down a legislation the court needs to be cognizant of the effect it would
have on current persons receiving support. Only one Charter case to date has been struck down, and
that was R. v. Big M Drug Mart (Lord’s Day Act) otherwise the most common remedies are severing the
offending provision or reading down the provisions.

Affirmative Action
Section 15(2) explicitly protects affirmative action programs from challenges based on equality rights.
These ‘reverse discrimination’ programs have not been broadly challenged and the courts first major
decision came in 2000 in Lovelace v. Ontario. The court choose to apply a holistic approach to s.15
instead of interpreting s.15(2) to be an exception to s.15(1). The focus of s.15(2) is confirmatory and
supplementary to s.15(1). The decision in R. v. Kapp confirms that s.15(10 prevents governments from
discriminating against the disadvantaged and s.15(2) enables the government to combat discrimination
through affirmative measures.
Freedom of Expression
In its early decisions the SCC adopted a broad view of the scope of s.2(b) indicating that any (non-
violent) activity that conveys a message is expression under s.2(b). In these cases the court had little
difficulty finding the restricted expression was protected under s.2(b) and moved to a s.1 analysis. One
of the central issues in many freedom of expression cases is whether the restricted expression causes
harm. The analysis used by the courts in determining this meant they often turned to social science
evidence to look at the link between the restricted expression and the harm caused. The problem is
that this evidence is often inconclusive with both sides being able to adduce evidence to support their
side. Ultimately it ended up that the courts fell back on ‘common sense’ as the means of decision
making or they would defer to the legislatures judgement in creating the restriction.
Freedom of expression has become closely linked with discussion about equality. A traditional liberal
view supports individual liberty with few restrictions imposed by the state. However some insist that
sometime liberty must be sacrificed in order to protect disadvantaged groups from social stigmatization
and subordination (Owen Fiss: Liberalism Divided).

The first major case that came before the Supreme Court was Dolphin Delivery in which the court had
to decide if injunction against secondary picketing was an infringement of freedom of expression rights.
The court held that picketing is a form of expression protected by s.2(b) but that it could be restricted
under s.1 because it would cause unnecessary harm to the picketed business and to the larger
community. In a later decision involving Pepsi-Cola the SCC reinterpreted the common law rules
regarding secondary picketing. It found them to be generally lawful unless it involves tortuous or
criminal conduct. In the same decision they did prohibit picketing of private residence as being subject
to torts of trespass, intimidation, nuisance and inducing breach of contract.

In its second major decision regarding freedom of expression, in Ford v, Quebec, the court was faced
with a challenge to the Quebec Charter of the French Language which required that outdoor commercial
signs be exclusively in French. The SCC found that the legislation violated freedom of expression under
s.2(b) and could not be upheld as a reasonable restriction under s.1 analysis. The court found that
while the province was justified in requiring the use of French, it was not justified in prohibiting the use
of other languages. In Irwin Toy the court was asked once again to consider the issue of commercial
expression in more depth. First, in order for an activity to fall within conduct protected by freedom of
expression it must convey or attempt to convey a meaning, thus giving it expressive content that would
be protected. Only violent forms of expression are generally excluded as being protected under s.2(b).
Second step is the inquiry into the purpose or effect of the government action in question to restrict
freedom of expression. In applying this test one must be careful not to drift to either of two extremes,
one on an objective test almost all human activity has an expressive element and thus government’s
purpose is virtually always to restrict expression. Conversely, government can always claim that its
subjective purpose is to address some real or purported social need and not to restrict expression. To
avoid both of these the purpose must be assessed from the standpoint of the guarantee in question.
The question becomes, does the mischief consist in the meaning of the activity or the purported
influence that meaning has on the behaviour of others, or does it consist, rather, only in the direct
physical result of the activity. Even if the purpose was not to control or restrict freedom of expression,
the court must still decide if the effect did restrict the plaintiff’s freedom of expression.
Life, Liberty & Security of Person
Section 7 – 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. The scope of this
right is limited as the phrase does not include and which does not include a determination of rights and
obligations respecting economic interests. These are supplemented by the Canadian bill of rights under
ss.1(a)(enjoyment of property) and 2(e) (right to a fair hearing for determination of rights and
obligations) as there coverage is broader then s.7 but only cover federal and not provincial law.

In a s.7 analysis one must first determine the nature and scope of the right to life, liberty,
or security of person; second, the nature and scope of fundamental justice; and third, the
applicability of s.1 of the Charter. Under Canadian administrative law; natural justice require that,
an individual who will be specifically affected by a government decision is entitled to: notice and an
opportunity to present evidence and arguments and an impartial and independent decision
maker. This requirements meet the definition of procedural due process.

In its first major decision, Ref. re BC Motor Vehicle Act, regarding the nature and scope of s.7, the
Supreme Court held that fundamental justice was not limited to substantive and procedural justice, but
that it is a basic tenets of our legal system.. Because imprisonment was held to constitute a
deprivation of liberty in Ref. re BC motor Vehicle act, s.7 have been used in challenges to criminal
provisions regarding bodily integrity. In the R. v. Morgentaler decision the court stated that ‘forcing a
woman, by threat of criminal sanction. To carry a foetus to term unless she meets the criteria unrelated
to her own priorities and aspirations, is a profound interference with a woman’s body and this a
violation of security of person’. But a finding a violation of s.7 does not end the inquiry. Parliament
could still choose to infringe if it did so in a manner consistent with the principles of fundamental
justice. In which case an analysis under s.1 would be required. Post Morgentaler, with the striking
down of the requirement for approval of therapeutic abortions by a hospital committee there was a void
in the federal regulation regarding the practice of abortion. In 1990 the government introduced bill C-
43, which was subsequently defeated, which would have introduced criminal penalties against abortion.
Following the premise that life, liberty and security of person is tied to the bodily integrity, a challenge
to the immigration act regarding deportation came before the courts (Suresh). The claimant submitted
that deportation to a country where a person’s life or freedom would be threatened was a violation of
s.7. In concluding that s.53(1)(b) did not violate s.7 of the Charter, the court stated that the real issue
was the Minister’s obligation to exercise discretion. In a similar case, Charkaoui v. Canada, the claimant
was detained on security certificate that provided for a review by a judge but not full disclosure to the
claimant the information against him. Relevant principles of fundamental justice were defined as, 1)
no detention for significant periods without fair process which include a) a hearing before
an independent magistrate, b) right to know and answer the case against one, c) decision
based on facts and law. The court concludes that there is an infringement of s.7 that must now be
justified under s.1. In their s.1 analysis they conclude that the law cannot be upheld on the basis that it
does not constitute minimal impairment. The declaration of invalidity is suspended for one year to
allow the government to correct the legislation.

Currently the SCC is struggling with a case involving a youth detained by the US government at
Guantanamo Bay on a terrorism charge. Generally Canadians working and travelling abroad are bound
by the laws of the country they are in. The issue with the Khadr case is that the Canadian officials have
been involved in the interrogation and sharing of information gained with US officials. The SCC has
concluded that his s.7 rights have been violated but have left it to the government to determine what
steps to take next. In both the Khadr and Charkaoui cases that court have recognized and respected
the difficult decisions that government must make, especially in protecting Canadian security.

Several cases have expanded on the bodily integrity issue to include human dignity and personal
autonomy outside of the criminal law context. But the court has struggled with defining what the
principles of fundamental justice are. Decisions have ranged from finding that a parent was not
deprived of liberty under s.7 , only that he did not abide by the rules of having a certificate for approval
of home schooling his children (Jones). That Jehovah Witness parents, whose child required a blood
transfusion, were not denied fundamental justice under s.7. The procedure for making the child a ward
of the state conformed to the principles of fundamental justice (B.(R.) v. Children’s Aid Society of
Metropolitan Toronto). An indigent parent was supplied with state funded counsel to fight for custody of
her children from the state. This was done on the basis that the impact on her personal identity, stigma
and distress involved were an infringement of security of person (N.B. v. G(J.)). That fundamental just
requires that law not be arbitrary (Chaoulli).

The decisions of the court, prior to Gosselin v. Quebec, did not include a positive obligation on
government to ensure that everyone enjoys life, liberty & security. In Gosselin the claimant argued that
the government was required to provide a certain amount of social assistance to meet basic needs.
McLachlin, writing for the majority, stated that s.7 speaks of a right not to be deprived of life, liberty and
security of person. Nothing in the jurisprudence thus far suggests that s.7 places a positive obligation
on the state. But goes on to say that one day s.7 may be interpreted to include positive obligations as
the charter must be viewed as a living tree capable of growth and expansion. So although the court did
find a positive obligation in the Gosselin case, it did leave the door open to future possibility. The
dissent disagreed saying that s.7 does impose positive obligations which could lead one to think that
federally funded daycare, enhanced medical care and government housing could be required by the
state.

*Not in course materials- R. v. Malmo-Levine (possession of marihuana) Court denies that ‘striking the
right balance’ between individual and societal interests is a requirement of fundamental justice.
Instead sets out three requires for a rule to qualify as a ‘basic tenet of the legal system’. 1) must be a
legal principle; 2) must be significant societal consensus that it is fundamental to the way a
legal system ought fairly to operate; 3) capable of being identified with sufficient precision
to yield a manageable standard.
Peace, Order and Good Government
Federal government get it’s POGG power from the opening language of s.91 – It shall be lawful for
parliament to make laws for the peace, order and good government of Canada, in relation to all matters
not coming within the classes of subjects in this act assigned exclusively to the legislatures of the
provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of
this section…list the enumerated federal powers. This makes it clear that anything not coming within a
provincial head of power must be within the power of the Federal Parliament. This ensures that every
possible subject of legislation falls under either provincial or federal power. With the exception of
Russell v. The Queen, the judiciary have not approached POGG as a general power that goes beyond
the enumerated list of powers, as suggest it can in the opening. Instead the courts first consider the
enumerated heads of power for both the federal and provincial governments. If the legislation cannot
be classified under an enumerated power, then POGG will be considered. After a failed attempt re
Employment Insurance Act for inclusion under the POGG power, the constitution was amended to add
‘unemployment insurance’ to federal jurisdiction via s.91(2A) after the Great Depression. It is unclear if
an argument could be made to have treaties assigned to the federal government under POGG. The Ref.
re Labour Conventions was held to be invalid by the courts, establishing that jurisdiction to enact
legislation to perform treaty obligations are divided between ss.91 and 92. There were three
established branches of POGG power, each with a distinctive role and definition: 1) GAP – a residual
branch; 2) Emergency; 3) national concern or national dimensions branch. Subsequently the GAP
branch has been abandoned in favour of the emergency and national concerns branch.

GAP Branch
The original use of the POGG power was to fill any gaps in the distribution of powers between the
federal and provincial governments. The Gap theory has subsequently abandoned, leaving emergency
and national dimensions test in it’s place.

National Dimensions (National concern):

The national concern doctrine came about in 1882 in a Privy Council decision regarding the Canada
Temperance act (Russell). This was later reaffirmed in 1927 re-enactment of Canada Temperance Act
and the modern formulation articulated in another assault on the Canada Temperance act in 1946.
Where the council stated that if the subject matter of the legislation goes beyond local or provincial
concerns or interests it must from its inherent nature be a concern of the dominion as a whole,
then it will fall within the competence of the Dominion Parliament as a matter affecting the peace, order
and good government of Canada. Nor is the validity of the legislation… affected because there may
still be room for enactments by a provincial legislature. The SCC has since used the national
concern doctrine, by employing it to uphold legislation in relation to aeronautics (Johanesson v. St. Paul)
and the National Capital Region (Munro v. National Capital Commission). It was not until the Anti-
Inflation reference in 1976 and Crown Zellerbach in 1988 that the scope of doctrine of the national
dimensions test was fully developed. In the first of these two case, Justice Beetz lays out the limits of
the national test: 1) distinct , discrete subject matter(marine waters =yes, environment=no);
2) not within s.92; 3) of national concern. In applying this to the Anti-inflation reference the courts
finds that inflation is an aggregate of several subject matters within s.92. The national dimension is
further elaborated on in Crown Zellerbach. The majority states that the test applies to: New matters
of national concern that did not exist at confederation; matters which were local or private
but have transformed into matters of national concern. They also establish a series of
perspectives (not tests) to consider the issue from. ‘cohesiveness test’ – a singleness,
distinctiveness, indivisibility that distinguishes if from matters of provincial concern.
“Provincial impact test” – scale of impact on provincial jurisdiction must be reconcilable with
the fundamental distribution of legislative power under the constitution. “Provincial
inability test” – what would be the effect on extra-provincial interests of a provincial failure
to deal effectively with the control or regulation of the intraprovincial aspect of the matter.
Under the national dimension doctrine the power would be permanently transferred to the Federal
government and therefore there must a consideration of the impact on the affected provinces.

Aspect Doctrine
In matters where the provincial and federal government both have jurisdiction and the subject matter is
diffuse the courts have recognized the aspect doctrine. This allows for both groups to legislate on the
matter in a way that supports the objective of the legislation. This overruled the court in Ref. re labour
Conventions, where it held that protection of the provincial jurisdiction via ‘watertight compartments’
prevented the federal legislation from being valid.

Emergency Branch
For many years the privy council consistently stated that only the emergency power would serve to
enable the federal parliament to exercise its POGG power, ignoring the national dimensions doctrine.
The most recent use of the emergency branch was in 1975. The Anti-inflation Ref. was upheld by the
court as a valid exercise of federal parliament’s emergency power. The most troubling aspect of this
decision was that the preamble of the legislation did not assert the existence of a national emergency.
Although the court in their decision stated that in declaring a national emergency they need to do so
overtly. Subsequently the courts have clarified that simply saying it was of serious national concern
may not be not enough to invoke emergency in the future. Provinces will have to provide a written
request for the Federal government to step in (eg. Natural disaster). The emergency branch of POGG
now replaces the War measures act. The distinction between the national concern branch and the
emergency branch is that the latter is of a temporary nature only.

Post Anti-Inflation
Parliament has since limited its own jurisdiction, but that doesn’t change what the constitution says
(***more about this)
The Emergencies Act (Canada) is introduced – urgent & critical situations; temporary; seriously
threatens sovereignty, security, territorial integrity of Canada. How – federal cabinet declares
emergency, describes state of affairs; requires confirmation by parliament; affected provinces have to
agree that they cannot deal with situation.

Because of the profound impact of permanently assigning a class of subjects to the federal Parliament
and the effect that would have on the balance of federalism, the courts have rarely applied this
doctrine. Only five subject matters have been recognized as subject matters now assigned to the
federal parliament: temperance legislation (Canada Temperance Act 1946); aeronautics (Johanesson v.
St. Paul, 1952); the national capital region (Munro v. National Capital Commission,1966); marine
pollution (Crown Zellerbach, 1988); and atomic energy (Ontario Hydro v. Ontario Labour relations
board,1993).

Use of extrinsic evidence in references

In the Anti-Inflation reference the court is divided over the use of extrinsic evidence in deciding cases
that have come up through the court system and thus no evidence has been adduced. One group of
judges think that the court should consider extrinsic material regarding the circumstances in which the
legislation was passed (purpose & effect) in order to determine the constitutionality and not to interpret
the provision. Another group says it should consider the legislation and the material before Parliament.
The third group says consider the material filed as well as the Hansard (record of the debate in
parliament).

Centralist (Laskin) vs. Classic Federalism (Beetz)

Laskin
- Strong central government
- Objective or purpose of legislation – if had federal or provincial aspect
- Functional approach
Beetz
- Flexibility in interpreting constitution
- Principles and rules to confine judicial discretion
- Protective of provincial rights
- Still demanded federal autonomy – conceptual approach
Homeless items:
- Executive gets it authority from legislation –can’t act contrary to it
- Inconsistencies between new and old legislation are considered to be an implicit repeal of old
legislation, only to the extent to give way to new legislation – assumption is that parliament
knows what it is doing.
- Opting in by order-in-council – an agreement which binds subjects to laws must be authorized by
legislation
- ‘reading down’ has become an important remedy in Charter cases
- Purposive analysis- when the court identifies a constitutional provision’s purpose, it is in essence
explaining the rationale of the provision and articulating the reasons underlying the protection
that the provision provides.
- Collocation – a grouping together of things in a certain order
- Rule of law – all exercises of legitimate public power must have a source in law, and every state
official or agency is subject to constraint of the law

Public interest standing

The Supreme Court of Canada developed the concept of public interest standing in three constitutional
cases commonly called "the Standing trilogy": Thorson v. Canada (Attorney General),[22] Nova Scotia
Board of Censors v. McNeil,[23] and Minister of Justice v. Borowski.[24] The trilogy was summarized as
follows in Canadian Council of Churches v. Canada (Minister of Employment and Immigration):[25]
It has been seen that when public interest standing is sought, consideration must be given to three
aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it
been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a
genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue
before the court?
 Checklist Summary
PART I – CHALLENGES TO STATUTES
Three types of challenges to a statute:

A. Validity (ultra vires) (Pith and Substance; Necessarily Incidental; Double Aspect) (federal and provincial)
• Morgentaler (P&S); General Motors (NI);
>Remedy: declaration of invalidity pursuant to s.52 CA, 1982, in whole or in part (severance) (e.g. of severance:
Margarine Ref) (s.52 encourages severance)

B. Applicability (Interjurisdictional Immunity) (provincial only)

• McKay v The Queen; Bell Canada #2
>Remedy: reading down to restrict its application to protect the matter at the core of the other level of govt’s
jurisdiction

C. Operability (Paramountcy doctrine) (provincial only)

• Multiple Access; Bank of Montreal v. Hall
>Remedy: suspension of operation: provincial law is suspended to the extent of the conflict with the federal law

*You cannot apply subsequent challenges unless the statute can withstand the previous argument. (i.e. a valid
statute may be inapplicable, but not vv)
*Federal statutes can only be challenged on the grounds of invalidity

Key Starting Point: Presumption of constitutionality: In div powers cases, the enacting body is presumed to have
intended to enact valid law; courts should chose interpretation that renders intra vires (Husky)

Assessing the Validity of Statutes

Step 1. Pith and Substance/Dominant Feature (Determining the “matter” of a challenged statute)
1. Determine the “matter” of a challenged statute (dominant characteristic or pith and substance); (Starr v.
Houlden)
A. Focus is on the purpose of the law and its legal effects; assessed by examining:
a. Purpose: legislative scheme, including preamble or purpose clauses (*purpose is the guiding
factor in these cases)
b. Effect: legal effects
c. Previous state of the law (one to determine the purpose of the law to change existing law)
d. Legislative history (Hansard record of debates, inquiries, reports)
e. Precedent (usually of very little value in this analysis but important in defining scope of heads of
power)
f. Values (often comes into play – e.g. in favour of pro-choice)
B. Is the law in pith and substance in relation to one or more of the heads of jurisdiction (see summary for
heads for Provincial and Federal)?
*If it looks like it may fall within one of the heads of power, go to the test for that section.

2. Interpret the scope of the “classes of subjects” (or heads of power) in sections 91 & 92 (courts must define
scope of heads of power); use precedent for relevant area (i.e. go to section for criminal law or economic
regulation); Preamble to Constitution Act 1867; Alberta Press Reference (severance? Statute stand and fall as a
whole)

3. Assign the statute to the head or heads of power that embrace the statute’s subject matter

Case: Morgentaler 1993: case stands for how one should conduct an inquiry (methodology) as to the pith and
substance of a law in regard to jurisdiction and the division of powers: court is willing to look behind the stated
goals of legislation and look at social context, Hansard, legislative history, etc.

Step 2 – Necessarily Incidental Doctrine (provincial and federal provisions within Acts)
-this doctrine is used in cases where the provision being challenged is part of a larger scheme of legislation; Steps:

1. Is the larger scheme constitutionally valid? Consider here pith and substance analysis above. (If not, see chart
below if yes, go to 2)

2. Is the provision constitutionally valid? Do P&S analysis above. If not, to what extent does it intrude on provincial
powers? (if no, go to 3; if yes, inquiry ends)

3. How well integrated is the impugned provision into the larger scheme?
a. If the provision is closely related it is deemed “necessarily incidental” and is valid.
i. if intrusion is serious, the test of fit must be a very strong one (must say that the provision is
necessary to the wider scheme);
ii. if intrusion is modest, then the test for fit is not as rigorous (courts just make sure that the larger
scheme is not “tacking this on” to the wider scheme as a Trojan horse).
b. If the provision is not closely related it is severed and declared invalid.

Case: General Motors: above methodology comes from this case. Tort action upheld b/c it was rationally
connected to the objectives of the statute as a whole.
Global Securities Corp: doctrine is equally applicable to provincial provisions that encroach on federal head of
power.

Step 3 – Double Aspect Doctrine (provincial and federal law in same area)

1.Consider the validity of each law using pith and substance doctrine separately. If both are valid (eg. the area of
regulation has a double aspect, go to 2; if one is invalid and the other is not, enquiry ends).

2.Consider the relative importance of each feature:

a. If federal feature is deemed unimportant relative to the provincial feature, then only the provincial
government has power to enact the challenged law
b. If the provincial feature is deemed unimportant relative to the federal feature, then only the federal
Parliament has power to enact the challenged law

3. If both are therefore roughly equal importance, valid and can apply, consider whether the affect on the federal
statute is incidental (if not, go to step 3); if it is, subject matter is therefore a double aspect matter: can be
approached from federal and provincial point of view.

4. If there is a conflict (i.e. they call for different courses of conduct) must consider the paramountcy issue. (note:
mere duplication of regulation without actual conflict or contradiction is not sufficient to invoke the doctrine of
paramountcy and render otherwise valid provincial legislation inoperative – Multiple Access).

Case: Multiple Access: both law are valid and can apply; affect on federal statute is incidental; subject matter is
therefore a double aspect matter: can be approached from federal and provincial point of view; no conflict
therefore no paramountcy issue. Bell Canada #2: Caution in use of DA: should only be invoked when it gives
effect to the rule of exclusive jurisdiction and should only be applied in clear cases where the multiplicity of
aspects is real and not merely nominal.
Applied to: insider trading wrt a federally incorporated company (Multiple); highway traffic; toxic substances
(Hydro)

B. Assessing the APPLICABILITY of Provincial Statutes

Step 1: Interjurisdictional Immunity Doctrine

1. Consider the validity of each law using pith and substance doctrine separately. If both are valid (i.e. the area of
regulation has a double aspect, go to 2; if one is invalid and the other is not, enquiry ends.)

2. Is the matter at the heart/vital part of a head of federal power (or vital part of the operation of an interprovincial
undertaking)? Does the provincial statute impair the status of the federally regulated undertaking? Is yes, read
down provincial statute so as to render it inapplicable.

Cases: Bell Canada: vital part of management or operation federally regulated undertakings (core of federal head
of power) is immune from operation of provincial laws

**Canadian Western Bank: restricts the use of II doctrine; should really only apply to federally regulated
undertakings where provincial law impairs its status.

State of the law today: courts prefer impairment test (over vital part test from Bell Canada cases); much more
difficult test: must make it impossible to operate (e.g. federally regulated company) (Canadian Western Bank).
Applied to: fed companies, aboriginals, navigation and shipping, RCMP, federal lands, CForces, postal.

Assessing the OPERABILITY of Provincial Statutes Paramountcy Doctrine

Arises when:
1. Provincial law at issue is valid; (P&S Doctrine)
2. Federal law at issue is valid; (P&S Doctrine)
3. Both laws apply to the facts; (II Doctrine)
4. The two laws conflict: mere duplication is not enough; there must be “express contradiction” or “impossibility of
dual compliance” (Multiple Access)
a. Is there an impossibility of dual compliance? or,
b. Is there an express conflict of purpose? Is provincial law incompatible with federal legislative purpose?
(look for federal statutes that seek to have a single enforcement regime, etc. – BofM v. Hall)
*if either one or the other or both, law is inoperable to the extent that it conflicts w/ the federal statute

BofM v. Hall: is the authority for the two part test (i.e. compliance and purpose).

PART II – PEACE ORDER AND GOOD GOVERNMENT

1. Go through the pith and substance analysis. If you cannot allocate a law to a head of power (prov/fed), then
and only then do you consider POGG.
2. POGG Analysis:

a. Gap Brach: Does constitution deal specifically but incompletely with the subject matter? If yes, this branch will
“complete the incomplete assignment of power” (Radio Ref: implementation of treaty obligations)
b. Emergency Branch: looks at extrinsic evidence;
i. Parliament must show sufficient evidence of a “rational basis” (i.e. the existence of an emergency)
 ii. Must address seek to address emergency BUT the actual potential success of the legislation is not
subject to judicial review.

Note: Parliament does not have to indicate in legislation that it is relying on emergency branch.
Effect: temporary; lasts as long as emergency; only limited by scope of crisis. Gives Parliament concurrent and
paramount jurisdiction (all Anti Inflation Reference)

c. National Concern Branch: Before a subject matter can be allocated to the national concern branch of POGG it
must:
i. must be a new subject matter not falling specifically under a head of power (e.g. aeronautics, radio, NCC)
(Anti-Inflation)
ii. Go beyond provincial or local interests and be of concern to the nation as a whole;
iii. Must “have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of
provincial concern”; and “a scale of impact on provincial jurisdiction that is reconcilable with the
fundamental distribution of legislative power” (Zellerbach; see also Beetz in the Anti-Inflation Reference)
not too diffuse to fall under this branch (i.e. inflation too broad; environment too broad; competition too
broad - GM)
iv. In determining (iii) it is relevant to consider the “provincial inability test”: that is, will the failure of a
province to deal effectively with the subject matter have negative consequences outside the province? If
so, this strengthens the case for allocating the matter to the national concern branch of POGG (Zellerbach)

Note: the broader a subject-matter of national concern, the less likely it falls within the national concern branch of
POGG.
Effect: permanent, limited to the identity of subject newly recognized to be of national dimensions. Gives
Parliament exclusive jurisdiction. (all Beetz in Anti Inflation)

Examples of NC Branch:
• Temperance legislation (Canada Temperance Act 1946);
• Aeronautics (Johanesson v. St. Paul 1952);
• The national capital region (Munro 1966);
• Marine pollution (Crown Zellerbach); and
• Atomic energy (Ontario Hydro v Ontario Labour Relations Board 1993)

PART III: ECONOMIC REGULATION

2 Branches of 91(2):
1. International and interprovincial trade (extraprovincial trade)(must cross borders); and

2. The “general regulation of trade affecting the whole dominion” (GRT power)

1. Interprovincial/International Trade:
a. federal laws that are in pith and substance in relation to Export/Interprovincial Trade can be upheld
notwithstanding their incidental effects on intraprovincial transactions (i.e. selling wheat or gasoline)
(Klassen)
 b. Federal regulation over trade matters in the provinces will be considered intra vires federal jurisdiction
under 91(2) if such regulation is “necessary” to the effective regulation of intra-provincial or international
trade, i.e. where the interference is an integral part of furthering an extra-provincial trade policy (Caloil)
Focus on transactions:
1. After Parsons, the courts made clear that whether a business operates in a single province, in many provinces,
or on a national basis, is constitutionally irrelevant; rather, the crucial question is whether the transactions that
are sought to be regulated are intra- or extra-provincial. (Insurance Reference, finding ultra vires a federal
attempt to license insurance companies operating in more than one province)

2. If it is impossible to distinguish between b/w those who participate in the intra-provincial aspects and those who
participate in the extra-provincial aspect – if that’s not possible, likely falls under Fed 91(2) power (Klassen) OR

3. Is it preferable that only provincial law regulate the trade, otherwise the ‘wasteful overlap of administration or
enforcement’ would defeat the federalism set out in the Constitution (Dominion Stores).

2. Test for Federal GRT power in s.91(2): (skip 1 & 2 if dealing only with the entire act and not provision within
it)

1. Does impugned provision encroach on provincial powers? If so, to what extent? (if not at all, inquiry ends)
2. Is the provision part of an overall regulatory scheme? (i.e. necessarily incidental)
3. Is the scheme valid? (first 3 Vapor, added 2 in GM)
a. presence of a general regulatory scheme
b. Does the scheme operate under the oversight of an agency?
c. Is the scheme concerned with trade generally and not a single industry? (if not, unlikely to be upheld –
Parsons, Labatt)
d. Are the provinces jointly or severally (constitutionally) incapable of enacting legislation in the area? (yes
in GM)
e. Would the failure to include one or more provinces jeopardize the successful operation of the Act (i.e. is
national scheme necessary)? (yes in GM)

Case for Methodology: General Motors.

GM and Kirkbi (Megablocks) As the GM and Kirkbi cases illustrate, the utility of the GRT branch of legislative
power from Parliament’s point of view is that, unlike the first branch of s.91(2) as defined in Parsons, it will enable
federal regulation of both the intra- and extra-provincial aspects of trade if a court is satisfied that the legislation,
in pith and substance, enacts a national scheme of general economic regulation that transcends provincial
interests and could not be effectively accomplished by the provinces.

Provincial Jurisdiction
The early insurance cases established that the regulation of business (apart from the specific business activities
listed in s.91, such as banking) was a matter ordinarily within property and civil rights. Later, s.92(13) was
recognized as a source of provincial power in relation to labour relations, including collective bargaining,
employment standards and occupational health & safety (again with the exception of labour relations in federally-
regulated sectors): see T.E.C. v. Snider 1925 PC, Labour Conventions 1937 PC, Bell Canada 1988

PART IV: CRIMINAL LAW POWER

Start with Statement: the power under s.91(27) "is plenary in nature and this Court has always defined its scope
broadly... this Court has been careful not to freeze the definition in time or confine it to a fixed domain of activity."
(RJR-MacDonald)

“Triple P” test: federal legislation, to be upheld pursuant to s.91(27), must have, as its dominant characteristic in
P&S (PATA #1-2; Margarine Reference – added #3):

1. The imposition of prohibitions and

2. Penalties (formal elements)
3. In Pith and Substance for a typically criminal public purpose (substantive element) (e.g. public peace, order,
security, health (RJR), morality; environment – Hydro Quebec)
Exceptions to Form requirements: can be some deviation of prohibition and penalty (i.e. exemptions – RJR;
manufacturing standards – Cosman’s Furniture; legislative scheme with administrative discretion – Hydro Quebec)

Note wrt Purpose: Hydro Quebec: any "legitimate public purpose" will be sufficient to meet the third branch of the
"triple P" test. La Forest wrote that "it is entirely within the discretion of Parliament to determine what evil it
wishes by penal prohibition to suppress and what threatened interest it thereby wishes to safeguard". If the courts
continue to define criminal law purposes broadly and show such strong deference to Parliament's definition of
criminal wrongs, then Rand's purpose test in Margarine Ref will impose no constraint on the federal criminal law
power after all.

Valid Purposes Upheld:

• Prohibitions of anti-competitive practices in combines legislation (PATA);
• Consumer protection provisions of the Food and Drugs Act (R. v. Wetmore, 1983 SCC);
• The Tobacco Products Control Act (now the Tobacco Act) (RJR-MacDonald);
• The provisions of the Canadian Environmental Protection Act regulating toxic substances (Hydro-Québec);
• The Firearms Act, the federal gun control legislation (Reference re Firearms);
• Drug crimes set out in the Narcotics Control Act (now the Controlled Drugs and Substances Act) (Malmo-
Levine 2003 SCC)

***THE ONLY REAL LIMIT IN THIS AREA IS IMPOSED BY COLOURABILITY DOCTRINE: PARLIAMENT CANNOT INVADE
PROVINCIAL JURISDICTION BY DRESSING UP A LAW IN A CRIMINAL FORM (La Forest, Hydro, para 121)

Provincial Encroachment:
Concurrent legislation: under double aspect doctrine both can be valid
*Test: if one requires you to do something that the other prohibits, or if the provincial law displaces the federal
law, it will be held as inoperative to the extent of the conflict but valid otherwise (Can. Western Bank, Chatterjee).
As in Ross, original test was if you could comply with both then both were valid. That changed in Bank of Montreal
where if the provincial law frustrates the purpose of federal law then it will be inoperative.

ASK: Does the legislative history suggest that provincial legislature’s dominant purpose is to punish conduct by
bolstering existing Criminal Code provisions, or replacing old ones? (colourability)
If YES: then the provincial law will be vulnerable to being characterized as criminal law in pith and substance, and
so ultra vires. (Westendorp; Morgentaler)

Nova Scotia Board of Censors v. McNeil: legislation which enforcing a local standard of morality is not necessarily
an invasion into federal criminal law powers if the measure is preventative rather than penal. *There is in general
a lot of room for overlap.

dominant tendency BY FAR is towards concurrency or overlapping jurisdiction in relation to criminal law broadly
defined (see p. 16 for laws upheld)

PART V: CHARTER – APPLICABILITY

Purposive Interpretation: basic approach ought to be a purposive one: i.e. a generous interpretation with
reference to larger objects of Charter: “unremitting protection of individual rights and liberties” (Hunter v.
Southam)
Notwithstanding Clause: Has the notwithstanding clause been used (s.33)? If yes, did the violation relate to
section 2 or sections 7 to 15? (if yes, consider Ford form requirements; if no, to both, proceed with Charter
analysis). If yes, s.33 declaration is sufficiently express if it refers to the number of the section, subsection or
paragraph of the Charter which contains the provision(s) to be overridden. If it is intended to override only part,
the there would have to be sufficient reference in words to the part to be overridden. Can be a single enactment
covering a group of statutes. But cannot be retroactive in nature (Ford)
General Charter Methodology:
1. Does the Charter apply? (Onus on claimant to prove)
a. Is person claiming benefit of Charter entitled to its protection?
 i. Citizens Only can challenge these 3 sections: s.3 (right to vote), s.6 (mobility rights) and s.23
(minority language educational rights)
ii. Corporations: not s.7 or s.15 but can challenge law if charged with an offence even if not violation
does not affect them personally
iii. Residents/Everyone: s.2, 7, 8-10, 11, 12, 15
b. Is the entity governmental?
i. Territories? s.30 (yes b/c of section 30: any references to provinces in the Charter includes
territories)
ii. Municipalities? (yes; are creatures of provincial statutes; can’t allow provinces or Parliament to
delegate power and evade the Charter) (Godbout)
iii. Aboriginal governments? Unclear; (Indian Act; treaties, e.g. Nisga’a (1999); inherent s.35
Aboriginal right); for band govts, similar to municipalities under Indian Act; but when govts created
by treaty (e.g. Nisga) it is much more difficult to decide whether the Charter applies as their rights
flow from their occupation of the land and not statute; key issue: are treaties subject to the Charter?
Fed govt have insisted in the language of the treaty that the native govts are subject to the Charter;
some govts not yet recognized argue they have inherent right to self government (if this is
recognized it is debatable whether Charter applies)
iv. Non-governmental or private actors are not bound to comply with Charter (unless they are
implementing government programs or exercising coercive statutory powers) (Dolphin Delivery);
(Eldridge: found to be subject to Charter even though hospitals were not government b/c they were
implementing a specific government program – look at impugned conduct); (Slaight and Blencoe –
e.g.s of coercive exercise of power)
v. Private power of arrest: people subject to the Charter b/c in CC Parliament delegates criminal
powers of arrest and therefore Charter applies; (this also may apply to private security guards); R v.
Lerke;
vi. Government Inaction/positive obligations: yes, if the Charter imposes positive obligations on
government (Vriend) s.23 (minority language ed’l facilities); s.14 (interpreter)
vii. Extraterritoriality: Charter does not apply extra-territorially (at least in context of criminal
investigations) (Hape)
viii. Courts: Charter does not apply to court orders in the context of private disputes; Judiciary is
bound by Charter in other contexts (e.g. right to fair trial, interpreter, etc. all capture the judiciary
under the Charter) (Dolphin)
ix. Common Law: Charter applies to the common law but not in disputes between private parties.
(Dolphin; Hill) Charter will apply to CL only in so far as the CL is the basis of some governmental
action (BCGEU) which allegedly infringes a Charter right. Even in private litigation, the common law
must be applied and developed in a manner consistent with “Charter values.” (Dolphin; Pepsi)
x. Executive/Judiciary/Legislative: Charter applies to all three.
c. Two Tests for Government Actor:
i. Control test: “ultimate or extraordinary control” does not qualify; must be “routine or regular”
control (Stoffman; Dawson; McKinney) (CBC does not apply: National Part of Canada)
ii. Govt Function test: entity must perform a governmental function not just public function.
(Godbout)
iii. Delegation test – mandated to deliver government program. Exercises statutory control, power
of compulsion, authorized by statute

Elements of a Charter Claim:

- Claimant establishes application of the Charter (Onus)
- Claimant establishes – the scope of the right (purposive analysis), infringement of the right
- Proponent of the legislation seeks to justify limit (onus) – Oakes test
- Claimant establishes what the appropriate remedy is

PART VI – SECTION 1 LIMITATION

If law violates Charter Proceed to the Oakes test:
Step One: limits must be prescribed by law: (contextual approach preferred)
1. law must be adequately accessible (citizen must be able to have an indication that is adequate in the
circumstances of the legal rules applicable to the given case) (Sunday Times v. United Kingdom)
a. The two related values advanced by ‘prescribed by law ’are accessibility and intelligibility to the person subject
to the law. Threshold is low for vagueness/intell’y: it is enough that the law provides an intelligible basis for legal
debate (Nova Scotia Pharmaceutical)
2. a norm cannot be regarded as ‘law’ unless it is formulated with sufficient precision to enable the citizen to
regulate their conduct: must be able – if need be with appropriate advice- to foresee, to a degree that is
reasonable in the circumstances, the consequences which a given action may entail. (Sunday Times).
- Limitation must originate in a statute, regulation or common law rule (Therens)
*if any one of these not satisfied, the analysis stops here
Step Two: pressing and substantial objective (Oakes) (must look at purpose at time of enactment – Big M) - Clear
and convincing evidence/common sense
• Objective of the law must be “sufficiently important” to justify overriding constitutionally entrenched rights
and freedoms (Big M; Oakes)
• Purposes that run directly contrary to Charter values do not qualify (Big M: compelling Sabbath observance
contrary to protection of freedom of religion)
• The pressing and substantial objective must be the objective that animated its original enactment, and not
a new or “shifting” objective (Big M)
• Government cannot rely on ultra vires objective
• Fiscal restraint, on its own, cannot normally qualify as a pressing and substantial objective; it can, however,
when there is a “fiscal crisis” (NAPE)
• Govt rarely fails to demonstrate that infringing laws meet p/s objective test

Vriend: court says focus should be on the objective of the infringing measures (b/c if focus on Act, normally it is
pressing/substantial)

Step Three: proportionality test between violation and govt’s objective (Oakes; Dagenais) – est. by logic and
reasoning, doesn’t necessarily require evidence
1. rational connection between means chosen by govt and govt’s objective (courts rarely find restriction at this
stage)
a. means/ends rationality: measures “must not be arbitrary, unfair or based on irrational considerations” (Oakes)
b. law’s means must contribute to the achievement of its objectives
c. easily satisfied in most cases (not in Oakes)
2. minimal impairment: should impair as little as possible the right or freedom in question – subject to the
deference test (Irwin Toy) Qualified by Keegstra –alternative processes for seriousness
a. means chosen must be least restrictive approach to impairing Charter right violated;
b. requires a consideration of alternatives available to govt (if there are better ones, it could be struck out here)
3. proportionate effects: must be a reasonable balance between the negative effects on the exercise of Charter
rights or freedoms a
a. the objective, and
b. the positive effects (Dagenais) (balance between deleterious effects and salutary effects)
i. requires looking at practical effects of legislation
ii. look at negative effects on all Charter rights and freedoms for scope of negative impact
iii. more likely government would fail to demonstrate second one

Standard of proof is the civil standard, proof by a preponderance of probability – applied rigorously

*Contextual approach – requires court to assess the value or significant of the right and it’s restriction in their
context rather then in the abstract. Public interest in the right, public interest in limiting the right
Abstract approach underlying value is determined at large (eg. freedom of expression fundamental to historical
development vs. contextual the right to privacy against freedom of the press – Edmonton Journal v. Alberta)
Deference Test – Irwin Toy high water mark – court will not substitute its own line, especially in cases where
balancing competing interest, based on social science evidence (overall deference denied in Andrews, RJR
MacDonald (dissent(, NAPE, M v. H (as in Egan)
Remedy – onus on the claimant – read down, strike out, transition period – s.52 & s.24, override s.33 (Ford. V.
Quebec)

*If impugned law fails s.1 analysis: s.52(1) of the Constitution Act, 1982 : when a law is challenged; puts in place
requirement that law inconsistent with Charter be declared void to extent of inconsistency.

PART VII – FREEDOM OF RELIGION AND CONSCIENCE (2a)

1. Assess the purpose of the impugned legislation against 2(a). If it holds up, move on to effects. If it fails, go to
s.1 analysis. (Big M) (no shifting purpose)

2. Assess the effects of the legislation (which has a valid purpose) against 2(a). (Big M) (purpose can be innocuous
but effects not – Amselem)

3. Freedom of religion: two meanings:

a. Right to entertain such religious beliefs as a person chooses, right to declare beliefs openly, right to manifest
religious belief by worship, etc.
b. Absence of coercion or constraint from compelled action on religious grounds (i.e. observing the Christian
Sabbath against one’s will) (Big M)
i. Coercion can be indirect: coercion can include peer pressure, isolation, etc. (Zylberberg)

4. What Qualifies as a Religious Practice: based on subjective assessment; i.e. there does not need to be objective
criteria to determine whether a practice is generally part of a given religion or established tradition (i.e. you do not
need to tie your practice to an established practice);
a. simply need an honest and sincere belief;
b. practice must be linked to your sincerely held belief;
c. then claimant must show that the rule’s effect or purpose interferes with religious practice in more than a trivial
way (Amselem)
d. must therefore be reasonable accommodation of religious practices which are balanced against other interests
(i.e. safety Multani; Badesha)

PART VIII – FREEDOM OF EXPRESSION

Establishing a violation of s.2(b)- Methodology :(Irwin Toy; City of Montreal):

1. Does the activity at issue convey a meaning/message in a non-violent form? (not threats of violence);

2. Is the method and location of the expression consistent with the purposes underlying s.2(b)? (City of Montreal –
noise bylaw to protect public peace in public place; street is amenable to expression); Key question: is this a place
where freedom of expression can be protected; can people be excluded from a location;
a. How to define public place for freedom of expression: court looks at function of the place in light of
values of 2(b); location must be consistent with purposes underlying 2(b): truth, democracy, self-
realization. (public streets are protected places) To answer this question must consider:
i. Historical or actual function of the place;
ii. Whether other aspects of the place suggest that expression within it would undermine the values
underlying free expression. (City of Mont.)

3. Is the purpose of the impugned government action to control expression by reference to its content? If so,
violation established (e.g. prohibition of hate propaganda in CC – its purpose is to restrict speech) (note: purpose
can be benign but effect may not be – City of Montreal)
4. Does the impugned government action have the effect of suppressing expression related to either (1) truth, (2)
democracy or (3) self-realization? if so, violation established (e.g. littering by-law).

Section 1 Analysis (Proportionality Leg) - weigh 1 v. 2

1. Consider the nature and motivation of expression and consider whether it furthers the to objectives underlying
free expression (the closer the expression is linked to objectives underlying 2(b) the harder it is to uphold under
s.1) “not all content equally worthy of protection” (Keegstra)
a. Hate Speech: does not further objectives (Keegstra); harm caused outweighs the restriction on speech.
b. Economic Purposes: restrictions on expression that is purely for economic purposes might be easier to
justify although this will be weighed against consumers needing to make informed choices (Rocket)
(expression for prostitution not at core of freedom of expression – Ref re 193/195 CC)
2. Consider the group that is being protected:
a. Children: yes (Irwin Toy)
b. Minorities: yes (Keegstra)
c. Public Health/Smokers: yes (RJR)
d. Consumers: no (Pepsi)

Application of the Charter s.32 – Government test

Onus is on claimant
Scope of Right – Purposive analysis s.2(b) (not large and liberal – Hunter v. Southam) – values incld. In this
protection, interprets in a way that respect and advances the values, but in no way does violence to the words;
core values (democracy, truth and self-actualization), all speech is protected even it if offends constitution, not
violence; freedom to say nothing;
Test for Infringement- onus on claimant; purpose and effects test
Treatment of commercial expression – RJR, Irwin Toy
Charter – Is it within Municipal/Provincial jurisdiction on Federalism grounds? (Shell v. Vancouver)
If infringes moves to s.1 analysis

PART IX – LIFE, LIBERTY AND SECURITY OF THE PERSON

Application:
- Key rule: s.7 rights can be claimed by “everyone” - “every human being who is physically present in
Canada”: Singh (on Canadian soil)
- does not normally apply to actions of Canadian government in another country: Hape
- does not apply to corporations (Irwin Toy) Irwin Toy did not raise s.7 argument; Corps can raise s.7 in cases
where they have been charged with an offence; anyone charged with an offence can be challenged even if
it violates someone else’s rights (e.g. Morgentaler)

Establishing a violation
Three-step process:
1. Burden: claimant must demonstrate an interference, in purpose or effect, with one or more of the three
interests protected in s.7; and (usually try to go for an interference with all three); Court determines the scope of
each right at this stage. (must be state interference/restriction – Flora)
a. Life: clear. (begins at Birth)
b. Liberty: freedom from physical interference (e.g. movt,etc); the right to make decisions of fundamental
importance (Wilson in Morgentaler; Blencoe) (not ec’c liberty)
c. Security: freedom from physical and psychological (assessed objectively); right to make decisions wrt
one’s own body (Morgentaler)
2. The claimant must demonstrate that the interference is not in accordance with the principles of fundamental
justice (this is usually the difficult part for the claimant) (POFJ: more than just procedural rights; includes mens rea
requirement for imprisonment (Motor Vehicle Ref);
a. Courts balance the objective of the law against the violation of L, L, SoP; must be link between objective
and effects (i.e. restriction on private insurance not linked to objective of providing public healthcare -
Chaouilli)
 Requirements for Principles of Fundamental Justice(POFJ):
b. Must be a legal principle;
c. Must be a significant social consensus that it is vital to our notion of justice; and
d. Must be capable of being stated with precision and yielding predictable results
3. Applicability of s.1 of the Charter

Examples of PsOFJ (in addition to ss.8-14):

a. Procedural fairness, including right to know the case against you and make submissions
i. right to hearing before independent/impartial tribunal
ii. right to a decision based on the facts and on the law
iii. right to know the case against oneself and right to answer that case
b. No punishment of innocent (mens rea requirement) (Motor Vehicle Ref)
c. Intelligible standards (vagueness) (law must be intelligible)
d. Proportionality, including lack of arbitrariness (rational connection) and least restrictive means (over breadth)
(law can’t be overly broad)
e. Protection from extreme violations of human dignity

Examples of not PsOFJ: harm principle not POFJ in Malmo-Levine; not best interests of child in Canadian
Foundation for Children

3. Section 1 analysis: s.1 plays no role if there is a violation found under s.7; this is b/c the s.1 analysis is merely a
replay of the POFJ elements with the burden on the crown (this is the reverse of s.2(b) where it is easy to find a
violation but the battleground is s.1).

PART X – EQUALITY RIGHTS

First: Choose appropriate comparator group (but court can substitute) – mirrors the characteristics of the claimant
relevant to the benefit or advantage sought except for the personal characteristic that is offensive to the Charter
(Hodge, Auton)
Claimant must establish that the law or challenged govt action has resulted in:
The ‘Law’ test for violation of s.15(1):
1. Differential treatment (in purpose or effect) (need not be intentional discrimination);
A. Does the impugned law
a. Draw a formal distinction b/w the claimant and others on the basis of one or more personal
characteristics, or
b. Fail to take into account the claimant’s already disadvantaged position within Canadian society resulting
in substantively differential treatment b/w the claimant and other on the basis of one or more personal
characteristics?
> may be on the face of the law or in adverse effects (Eldridge; Vriend)
(adverse: only w/ evidence of disparate impact on individual/group)
2. Based on a prohibited ground (enumerated or analogous);
(Analogous: ID shared characteristics  main one is immutability) see next pg
B. Is the claimant subject to differential treatment based on one or more enumerated or analogous grounds? AND
3. that is discriminatory in the sense that a reasonable person in the claimant’s position would conclude that the
law impugns his or her human dignity
C. Does the differential treatment, by imposing a burden upon or withholding a benefit from the claimant in a
manner which reflects the stereotypical application of presumed group or personal characteristics or which
otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy or
recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect,
and consideration?

• Purpose of 15(1): prevent violation of essential human dignity and freedom through imposition of disadvantage
or stereotyping and to promote a society in which all persons enjoy equal recognition at law as human beings
deserving of concern, respect, and consideration. Existence of conflict b/w purpose/effect of impugned law and
purpose of s.15(1) is essential to found a discrimination claim – determination is made by analysis of full context
surrounding claim + claimant:

Four contextual factors to consider in determining whether differential treatment on the basis of a prohibited
ground is discriminatory:
1. Pre-existing disadvantage: is claimant member of a group that has a history of disadvantage – economic, social,
political, etc.?
2. Lack of correspondence b/w challenged government policy and the claimant’s needs, capacities and
circumstances (claimants’ actual needs)
3. Absence of an ameliorative purpose or effect of legislation (benefit of those more disadvantaged)
4. Severity of impact on important social interests (nature and scope of interest affected)

Shared Characteristics of the Existing Prohibited Grounds

- The dominant shared characteristic is immutability (Corbiere - McLachlin)
- Constructive immutability: Ask whether characteristic is changeable or only at an unacceptable personal
cost; “discrete and insular minority” flows from
- Other shared characteristics of recognized prohibited grounds (LHD in Corbiere):
- Group historically lacking in political power or disadvantaged/Vulnerable to becoming disadvantaged or
having interests overlooked
- Patterns of stereotyping
- Whether ground is included in federal and provincial HR codes or international HR
- Is it presumptively irrelevant to legitimate state objectives

Once a ground is found to be analogous, it is permanently enrolled as analogous for other cases i.e. it holds across
all legal contexts (Lavoie).
(View of Mc/Bast in Corbiere, LHD view answer could vary from context to context)

Possible Future Analogous Grounds

• family status
- Only minority judgments, but will likely find its way into s. 15, especially b/c HR provincial codes have it.
• language
- OCA says no b/c other parts of Charter deal w/ language rights, and would re-write protection for language
rights elsewhere in constitution; if drafters wanted to extend to minority language, would have (ryder: not
particularly compelling); Gosselin – Quebec want kids to go to public English school; denied, would be using
s.15 against s.23; doesn’t mean won’t be acknowledged – lower court rulings have recognized it as
analogous
• culture
• employment status
- Rejected by SCC, not particularly well reasoned, but still a precedent
• poverty or social status/ receipt of social assistance
- Banks: SCC refused to accept that poverty is analogous, but not yet clear SCC ruling; highly mutable
category; reluctance to recognize is understandable notwithstanding compelling grounds
• province of residence – NO!!!
- GOES directly against idea of federal state; allows provinces to pursue different laws and policies;
argument must fail b/c challenges another part of constitution – federalism; more contestable when
differences in treatment in federal law on basis of province of residence; for example certain provisions of
CC only come into being when provinces are ready for them to
• appearance
• criminal conviction
- Recognized in a number of HR statutes; mainly in context of employment
Aboriginal Rights & Title
- Right must have existed in 1982, extinguished rights are not revived but existing rights will be defined in
contemporary form (not frozen)
- Recognized and affirmed – purposive interpretation
- Onus is on the challengers to establish the right and the interference with that right
Infringement (s.35 not subject to Charter and therefore no s.1 analysis – court develop one)
- Sensitivity to aboriginal perspective taking into account the right as a whole
1) Is the limit reasonable
2) Does it impose undue hardship
3) Does it deny the preferred means of exercising the right
Justification
- Valid legislative objective (federalism grounds)
- Consultation
- Sensitivity to fiduciary obligations
- As little as infringement as possible
- Availability of compensation
*justifications may include activities for forestry, commercial fishing, hydro-electric, protection of the environment
*Priority rights – 1) conservation; 2) Indian fishing; 3) non Indian commercial fishing; 4) non-Indian sport fishing