Constitutional Law Constitutional Law Course Summary..................................................................................7 The Colonial Laws Validity Validity Act, 1865............................................................... ..........7 Constitution Act of 1867..............................................................................................7 The Statute of estminster, 1!"1................................................................................7 The Canada Act 1!8# $%17&'.......................................................................................7 The Constitution Act, 1!8# $%17&'..............................................................................7 Terms Terms ( Constitutional Law, Con)entions, Constitution...................................... Constitution............................................... ...........8 ..8 Campbell v. A.G.B.C....................................................................................................8 *icey $%1'....................................................................................................................8 Bell v. Town of Burlington +1!15 "& -.L.. 61! $%"'................................................8 Se/aration of %owers $%&'...........................................................................................8 e0ina ). o)ernor of 2er 3a4estys %rison rochill 9 %arte )ans.....................8 :leinwort enson ). Lincoln City Council, 3ayor of Southwar, irmin0ham City Council, 3ayor of :ensin0ton and Chelsea..............................................................................................! arldom of ;orfol %eera0e Claim.............................................................................! entham,
laiie rd >laiie #?....................1# A.G. )uebec v. Blaiie +1!81 1#" *.L.. $" ' 15 $%"5!' >laiie 3anito@a....................................................................................................................1" %atriation....................................................................................................................1" 'e !anitoba &anguage 'ights +1!85 1 S.C.. 7#1 $%"71'.....................................1" ssues related to the de facto doctrine and res *udicata.............................................1& Bilodeau v. A.G. !anitoba +1!86 " ... 67" $%"8!'.........................................1& Se)erance.......................................................................................................................1& Te9tual Se)erance......................................................................................................1& Su@stantial Se)erance................................................................................................15 Se)erance Clause.......................................................................................................15 %ith and Su@stance.....................................................................................................15 ;otre *ame de onsecours....................................................... ......................... ................ ................ ....... 15 A...C. ). A.. Canada +1!"7 A.C. "77 $%8!'......................................................15 A.G. Alberta v. A.G. Canada +1!&7 A.C. 5=" $%6#'................................................15 3adden ). ;elson and Bort She//ard y. y. Co................................................. ...........16 ........... 16 A.G. Sasatchewan v. A.G. Canada +1!&! A.C. 11= $%68'......................................16 +unle" v. Evans +1!81 " All .. #85 $%7&'..........................................................17 +a"mond v. South ,est ,est ,ater ,ater Authorit" Authorit" +1!76 1 All .. "! $%7&'........................17 +.P. +.P.P. v. $utchinson +1!!= # All .. 8"6 $%7#'.....................................................17 Constitutional 9em/tion from Le0islation..................................................................17 Canadian Charter of i0hts and Breedoms, s.1 ( >easona@le Limits?....................17 Canadian Charter of i0hts and Breedoms, s.1# ( >Cruel Dnusual?....................17 Canadian Charter of i0hts and Breedoms, s.#&$1' ( >no/erati)e?.........................18 Constitution Act, 1!8#, s.5#$1' ( >Su/remacy of Consitution?................................18 +1!8! 7& C.. $"rd' $%78' ( Charter s.#&$1'............................................18 '. v. Chief +1!8! Schacter v. The )ueen +1!!# !" *.L.. $&th' 1 $%!#' ( CA 1!8# s.5#$1'................18
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Constitutional Law !c-a" v. The )ueen +1!65 S.C.. 7!8 $%8#' ( Dltra Vires....................................1! ;E ine ine Statute Bound Dnconstitutional $2andout'............................................ ....1! +1!"! A.C. &68 $%1#='................................................................1! &adore v. Bennett +1!"! +1!&= A.C A.C.. 51" 51" $%1#5 $%1#5'' 1! Board of Trustees Trustees of ðbridge v. (ndependent rder of #oresters #oresters +1!&= ill of i0hts ( Assented to on Au0ust 1=, 1!6=.......................................................#= A.G. ntario v. Barfried Enterprises +1!6" 5 C.. 57= $%115'...............................#= +1!68 S.C.. #"8 $%1=!' #= Carnation Compan" v. )uebec Agricultural !areting Board +1 SelfFim/osed restraints on le0islati)e /ower.................................................................#= Condition %recedent...................................................................................................#1 Condition Su@seGuent................................................................................................#1 (n 'e The (nitiative and 'eferendum Act +1!1! A.C. !"5 $%1!"'............................#1 !cCawle" v. The -ing +1!#= A.C. 6!1 $%18"'........................................................#1 A.G. /.S.,. v. Trethowan +1!"# A.C. 5#6 $%##8'....................................................## Ellen Street Estates Estates v. !inister of $ealth +1!"& 1 :.. 5!= $%17!'........................#" +1!67 $%181, 18#'........................................#" The Commission of !arcel #aribault +1!67 #" 'e ntario Public Service Emplo"ees 0nion v. A.G. ntario +1!87 &1 *.L.. $&th' 1 $2andout' 'e Eurig Estate +1!!8 # .C.S. 565 $2andout'.......................................................#& Amendment Considerations.......................................................................................#& Constitutional issues......................................................................................................#& *i)ision of %owers........................................................................................................#& CharacteriHationI Ste/s of nter/retation $%#15'.......................................................#5 3or0entaler >%ro)ince does not ha)e criminal 4urisdiction?....................................#5 *i)ision of %owers *octrines....................................................................................#5 3 ). City ;ational Leasin0 +1!8! 1 SC 6&1 $%##5'...........................................#6 !ultiple Access v. v. !cCutcheon +1!8# # SC 161 $%#"#' >*ou@le as/ect?............#6 !c-a" v. The )ueen +1!65 S.C.. 7!8 $%8#' ( Dltra Vires....................................#7 $%#&6' >nterF >nterF4uris 4urisdicti dictional onal immunit immunity, y, readin0 readin0 down? down? Sante Securite du Travail v. Bell +1!88 1 SC 7&! $%#&6' (rwin To" To"....................................................................................................................#7 nterF4urisdictional mmunity.....................................................................................#7 Classical 3odel of *i)ison of %owers......................................................................#8 3odern 3odel of *i)ision of %owers.......................................................................#8 %aramountcy..............................................................................................................#8 'oss v. 'egistrar of !otor 1ehicles 1ehicles...........................................................................#8 ncom/ati@ility of %olicyJ%ur/ose.............................................................................#8 Ban of !ontreal v. v. $all $1!!=' 1 SC 1#1 $%#6&'..................................................#! hy should federal laws /re)ailK..............................................................................#! %eace, -rder, ood o)t..............................................................................................#! Concerns....................................................................................................................#! >nflation not a national concern?............................#! 'eference re Anti%(nflation Act >nflation ;ational Concerns *imensions >nflation not national concern?............. ................ ........ ........ "1 Bunctions of Crown 2ellerbach sucs?............................................."# La Borest <.................................................................................................................."# n)ironmental e0ulation............................................................................................."# #riends of the ldman 'iver Societ" v. Canada 3!. of Transport4 Transport4..........................."# '. v. $"dro%)u5bec >Bederal Criminal Law %ower?................................................."#
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Constitutional Law ntario $"dro v. ntario 3&abor 'elations Board4 >;uclear la@or?........................"# *ele0ation......................................................................................................................"# /ova Scotia *ele0ation Case....................................................................................."" *ele0atedMsu@ordinate le0islation.............................................................................."" Limitations on dele0ation.........................................................................................."" conomic e0ulation....................................................................................................."" -@4ecti)es.................................................................................................................."" Parsons >%ro/erty and ci)il ri0hts re0. most local commerce?................................."" conomic re0............................................................................................................."& 2ome -il..................................................................................................................."& Shannon $1!"8'.........................................................................................................."& +1!68 S.C.. #"8 $%1=!' Carnation Compan" v. )uebec Agricultural !areting Board +1 3anito@a 00 $1!71'................................................................................................."& %aul eilerI Carnation and 3anito@a 00 are the same. $%""8'.............................."& urns Boods $1!75' >CharacteriHation?...................................................................."5 e A0ricultural 3tin0 Act Act $1!78' >ood faith interFdele0ation?............................"5 3onahan, %atric......................................................................................................."5 Bederal conomic e0ulation........................................................................................"5 Leadin0 case is Citi6ens7 (nsurance Co. v. Parsons $1881'......................................"5 !1.# Trade and Commerce........................................................................................."5 %rof. Swinton............................................................................................................."6 ........................................................................................................................."6 &abatt ........................................................................................................................."6 .........................................................................................."6 Canadian /at8l Transport Transport .........................................................................................."6 3 ). City ;ational Leasin0 >;ational conomic Dnion?......................................"6 ;atural esources....................................................................... ................................... ........................... ........"7 "7 C(G& v. Gov8t of Sasatchewan +1!78..................................................................."7 Central Canada %otash ). Sas. +1!7! >nternational /rice fi9in0 @ad?..................."8 Criminal Law............................................................................................................."8 Bederal......................................................................................................................."8 %ro)incial..................................................................................................................."8 Board of Commerce Commerce..................................................................................................."8 P.A P.A.T. .T.A A........................................................................................................................"8 !argarine.................................................................................................................."! ecent e9/ansions under !1.#7................................................................................."! !ac+onald v. Canada >2ealth is a criminal law /ur/ose?......................................."! Ar0uments a0ainst )alidity of 3ac*onald................................................................"! Ar0uments for )alidity of 3ac*onald $3a4ority'....................................................."! '. v. $"dro%)u5bec $%&=='........................................................................................"! ..............................................................................................................&= #irearms Act ..............................................................................................................&= Ar0uin0 a criminal law le0islation.............................................................................&= %ro)incial reach to criminal law................................................................................&= /ova Scotia Board of Censors v. v. !c/eil $%&16'.......................................................&1 .......................................................................................................................&1 +upont .......................................................................................................................&1 ,estendorp v. The )ueen $%'...............................................................................&1 %ower to enforce comes from /ower to le0islate.......................................................&1 Bederalism and S/endin0 %ower...............................................................................&1 3easures taen under s/endin0 /ower......................................................................&1 Conditions for health fundin0....................................................................................&# Ar0uments a0ainst conditions....................................................................................&# %ro conditions............................................................................................................&#
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Constitutional Law 9:;< 0nemplo"ment insurance reference reference..................................................................&# Nue@ec So)erei0nty.......................................................................................................&# )uebec Secession 'eference......................................................................................&# Bour Constitutional %rinci/les...................................................................................&" %ension Administration?.........................................................&6 1. s ri0htMfreedom infrin0edK....................................................................................&6 #. s infrin0ement 4ustifiedK.......................................................................................&7 /ova Scotia Case $%75#'...........................................................................................&7 -aes Test $Leadin0 case on s.1'...............................................................................&7 2o00..........................................................................................................................&8 onald *worin.........................................................................................................&8 *icson $%757'I Bactors to consider..........................................................................&8 Edmonton =ournal Case.............................................................................................&8 Charter ssues.................................................................................................................&8 %- ntrenchment of Charter...................................................................................&8 C-; ntrenchment of Charter..................................................................................&8 old...........................................................................................................................&! einri@.......................................................................................................................&! 3onahan....................................................................................................................&! 2o00..........................................................................................................................&! S.33 Override................................................................................................................50 #ord v. v. )u5bec 3AG4..................................................................................................5= einri@, Lorraine.......................................................................................................5= 3orton.......................................................................................................................5= 2o00..........................................................................................................................5= Framework of Charter................................................................................................50 &ocal >?@ v. +olphin +olphin +eliver" $1!86' $early case' >9/ression?.............................5= Courts stru00lin0 to understand the /ur/ose of the charter.......................................51 Pepsi Cola..................................................................................................................51 o)t )s. %ri)ate Acti)ity..........................................................................................51 Guelph $%787' >;ot su@4ect to CharterI nde/endent, no coercion?.........................51 Community Colle0e >Su@4ect to CharterI o)t a//ro)al reG?.................................5# 2os/ital >;ot su@4ect to CharterI *ay to day o/s. run /ri)ately?.............................5# >%ri)ate actor su@4ect to CharterI %ower of com/ulsion?.............................5# Slaight >%ri)ate
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Constitutional Law Eldridge >Charter a//lies to 3edicare ser)icesK?.....................................................5# n the case of nonF0o)ernmental actors.....................................................................5# When does the govts fail!re to act attract attract the charter"......................................... charter"................................... ......5# 5# 1riend I Al@erta 2uman i0hts law...........................................................................5# %ositi)e -@li0ations...................................................................................................5" ho is /rotected @y the charter, aside from human @ein0sK.....................................5" Sources of remedies and standin0..............................................................................5" Freedom Freedom of $eligion.................................................................................................... .53 Bundamental freedoms...............................................................................................5& *i)ision of /owers.....................................................................................................5& .......................................................................................................5& Big ! +rug !art .......................................................................................................5& %rof. 3oon.................................................................................................................5& '. v. Edwards Boos and Art 39:?4 39:?4 etail usiness 2oliday Act?........................5& A//lyin0 S.1I *ay of rest..........................................................................................55 -/enin0 munici/al council meetin0 with /rayerK.....................................................56 Sudbur"......................................................................................................................56 Freedom Freedom of %&pression' %&pression' Commercial Commercial Speech (Advertising)....................................5* (Advertising)............................... .....5* (rwin To" To"....................................................................................................................56 ................................................................................................................56 Tobacco Act ................................................................................................................56 hy is ad)ertisin0 included in freedom of e9/ressionK............................................56 ncluded in Breedom of 9/ression...........................................................................57 Test for constitutionality............................................................................................57 Freedom of %&pression' +ate Speech........................................................................5, . ). :ee0stra $1!!='.................................................................................................57 -/tions.......................................................................................................................57 %-!alit $ights.............................................................................................................5, -ut with narrow ill of i0hts inter/retation $%11&1'..............................................57 Andrews.....................................................................................................................58 &aw >Sur)i)ors /ension distinction not an eGuality issue?......................................58 ...........................................................................................................5! !iron v. v. Trudel Trudel ...........................................................................................................5! ,alsh >3arital status distinction not a )iolation of di0nity?.....................................5! Goselin >*ifferent welfare /ayments not a )iolation of di0nity?..............................5! >ay s/ouse distinction is a )iolation of di0nity?.........................................5! ! v. $ >ay Ta9ation %ower..............................................................................................................5! *irect )s. ndirect......................................................................................................5!
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Constitutional Law
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Constitutional Law Course Summary The Colonial Laws Validity Act, 1865 •
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S.5: Legislature of a colony has full power to make constitutional law, as long as it conforms to appropriate Manner and Form. Scott says this is declaratory of the common law. This was the basis for deciding McCawley v. The King . The o!ernor had the right to appoint Mc"awley to the Supreme "ourt, e!en though the term was not certain.
Constitution Act of 1867 •
#n $%&%, s.%$'$( was added, establishes powers of parliament o!er constitutional changes, sub)ect to certain limitations. '#t later became s.&& in the "onstitution *ct, $%+( This section acts as a check on the broad powers pro!ided by s.5 of the "olonial Laws -alidity *ct, $+5.
The Statute of Westminster, 1!1 •
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S.'$(: The "olonial Laws -alidity *ct, $+5, shall not apply to any law made after the commencement of this *ct by the /arliament of a 0ominion. '0oes this repeal the need for appropriate manner and form asserted by s.5 of that act1( S.'(: /arliaments of 0ominion are allowed to make acts that are inconsistent with #mperial acts. S.2'$(: 3othing in this *ct shall be deemed to apply to the repeal, amendment or alteration of the 4ritish 3orth *merica *cts, $+2 to $%6, or any order, rule or regulation made thereunder. 7So acts made under s.%$'$( or s.%$'( of 4.3.*., $+2 were amendments to the 43* acts18
The Canada Act 18" #$17%& 9ecei!ed royal assent and came into force on March %, $%+. Schedule * is a French !ersion of the "anada *ct, eual to the ;nglish !ersion. Schedule 4 is the bilingual "onstitution *ct, $%+. S. terminates the power of the <= /arliament to legislate for "anada. • • •
The Constitution Act, 18" #$17%& •
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Separated into 2 parts. /art $ is the "anadian "harter of 9ights and Freedoms. o o /art recogni>es aboriginal and treaty rights. /art is a federal and pro!incial commitment to regional euality. o o /art & pro!ides for constitutional conference. o /art 5 is the ?/rocedure for *mending "onstitution of "anada@, replacing s.%$'$( and s.%'$( of the 4ritish 3orth *merica *ct, $+2 '4.3.*., $+2( with s.&& and s.&5. o /art amended the 4.3.*., $+2 '"onstitution *ct, $+2( by adding a new pro!incial legislati!e power under s.%. o /art 2 includes s.5 'Supremacy and A0efinitionB of "onstitution( Sub)ect to s.5+ and s.5%, came into force *pril $2, $%+, when the Cueen proclaimed it so and was announced in the "anada a>ette. The euality guarantees 's.$5( did not come into force until *pril $2, $%+5, in accordance with s.'(. S.5'$( and Schedule, #tem $2 repealed: S.& of the Statute of Destminster, $%$ as it related to "anada. From then on, no act of the <= /arliament o passed after *pril $2, $%+ shall eEtend to "anada as part of its law, regardless of "anadian reuestconsent. S.2'$( of the Statute of Destminster, $%$ as it related to "anada. '0oes this means that s.5 of the "olonial o Laws -alidity *ct is gone1 Das s.2 necessary1( The "onstitution *cts are protected from repeal by s.2'( of the Statute of Destminster, $%$ and by s.5'$( and s.5'( of the "onstitution *ct, $%+.
Constitutional Law
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Terms – Constitutional Law, Conventions, Constitution Campbell v ' A.G.B.C. *boriginal 9ights G #s the 3isgaHa treaty constitutionally !alid1 • •
"onstitution *ct $%+ s. 5 establishes rights for *boriginals. "onstitution *ct $+2 s. %$'&( gi!es parliament powers o!er #ndians and lands reser!ed for #ndians.
#ssues $. /arliament gi!es powers to 3isgaHa go!ernment which pre!ail o!er laws of "anada in case of conflict. . #f treaty becomes entrenched in constitution, it cannot be changed eEcept by amending the constitution through part fi!e 'sections +, &2.$( of "onstitution *ct $%+. . "onstitution *ct $+2 s. %$'$( gi!es parliament powers o!er all fishing, which conflicts with gi!ing those powers to the 3isgaHa. &. #t is not in "anadaHs best interests to ha!e hundreds of selfGgo!erning HminiGstatesH all independent of federal law.
(icey #$1& •
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*.-. 0icey pro!ides broad definition of what makes up constitutional law, including pretty much all laws. /ractical use necessitates a narrower !iew. 0icey makes distinction between laws and con!entions. Cuestions are either of law or fact. "on!entions: 9ules of custom or beha!ior that are not legally enforceable, but still adhered to.
Bell v ' Town of Burlington )115* !% +'L'' 61 #$!& Supreme "ourt of Intario TaEation without representation argued unconstitutional. *nswerG there is no legal rule for representation. •
Se-aration of $owers #$%& •
There is no perfect separation of eEecuti!e, legislati!e and )udicial powers. #f )udicial decisions are declaratory of the law, then )udges make legislati!e decisions.
e.ina /' 0o/ernor of er 2a3esty4s $rison rochill $arte /ans 2ouse of Lords •
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/risoner disagrees with release date set by o!ernor of prison, applies for habeas corpus, )udicial re!iew. In $5 3o!ember the CueenHs 4ench di!ision orders her immediate release, agreeing that her release should ha!e been $2 September. 0amages *warded: J5666 for 5% eEtra days imprisonment. Tort of false imprisonment is one of strict liability. Should the crown be responsible for the o!ernor, as parents are for their children, or would that encourage more irresponsible beha!ior by public ser!ants1 Solicitor eneral stood behind him, e!en though the treasury paid damages, because he wants to retain the image that the law has been followed where rele!ant. *fter the decision, the law is applied retrospecti!ely, as in ;arl of 3orfolk, and o!ernor of the prison is liable, e!en though he was following procedure.
9leinwort enson /' Lincoln City Council, 2ayor of Southwar, irmin.ham City Council, 2ayor of 9ensin.ton and Chelsea 2ouse of Lords •
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=leinwort 4enson is a bank that engaged in a series of interest rate swaps with the respondents. The appellant argued that money was paid under mistake of law and, though contrary to pre!ailing law, should be reco!erable. Lord off of "hie!eley allowed the appeal holding that: o There is a general right to reco!er money paid under a mistake, whether of fact or law, sub)ect to defenses a!ailable in the law of restitution. The basis is that of un)ust enrichment. o The claim that one honestly belie!ed they were entitled to the money recei!ed cannot be used as a defense for keeping the money. Fulfilling a contract that turns out to be !oid does not preclude the other partyBs reco!ery of money paid under o mistake of law.
Constitutional Law •
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Lord Lloyd of 4erwick dismisses the appeals, though he would like to do otherwise.
arldom of :orfol $eera.e Claim •
/eerage surrendered in $6 and reGgranted in $$.
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#n $%6, the law was declared such that peerage could not and could ne!er ha!e been surrendered. The surrender was badK the reGgrant was bad, 66 years later. More commonly, you canHt bring an action after certain time has passed, years in many cases. This redefinition of the law is not done !ery often, because precedent is a necessary stabili>er of law.
entham, ;eremy /% G ?Dhen your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the )udges make law for you and me.@ 'Ipen ci!il code portrayed to be better than secreti!e common case law, in his opinion.( • •
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"onstitution *ct $+2 s. %$.2 "riminal law under federal )urisdiction. $+% "anadian "riminal "ode established, but did not abolish common law crimes. #t was influenced by ;nglish 0raft "ode $%55 "anadian "riminal "ode established which abolished common law crimes.
A.G. Alberta v. A.G. Canada )1%!* A'C' !56 #$!5& /ri!y "ouncil 0epression, drought in western 3.*. /ro!ince steps in with the 0ebt *d)ustment *ct, $%2 and rules that no one can • bring suits or eEecutions against *lberta resident debtors. Those wishing to sue debtors must apply for permits, sub)ect to !eto by )uries. "onstitution *ct s. %'$( /roperty and ci!il rights lie under pro!incial )urisdiction. "onstitution *ct s. %$'$( 4ankruptcy and insol!ency are federally go!erned. 0oes the *ct relate to property or bankruptcy1 #s the pro!ince trying to protect people who canHt pay1 If course, and so it is ultra vires and in!alid. The ?"atchG@: S.$$ of 0ebt *d)ustment *ct includes an eEtension on the statute of limitations to bring suit 'if a creditor canHt get a permit(, so theoretically creditors can sue when the dust settles. #n reality, if the 0ebt *d)ustment *ct is deemed to ha!e been in!alid, so is s.$$ protection, and those who ha!enHt been able to sue are out of luck. • • •
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B.C. Power Corp. v ' B.C. Electric Co ' )16"* !% ('L'' #" nd& 16 #$"7& Su/reme Court of Canada •
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/arliament creates 4" /ower, which is holding company for 4" ;lectric. 4" decides to eEpropriate ydro operations. Shares of 4" ;lectric would belong to Cueen in right of 4". *ll assets of 4" ;lectric go to 4" ydro. The main issue in this decision is that shares of 4.". ;lectric would be miEed with those of ydro during litigation, transformed like Aan omelet which cannot be unmadeH. 4.". /ower is asking for an order of recei!ership to protect assets it does not own, pending determination of the case. * recei!er can appoint directors. The "rown contended that such an order cannot be made because it would affect the property and interests of the "rown. =erwin ".." held that the "rown could not claim immunity based on an interest in property that was established through legislation which may be in!alid. To do so would ?achie!e the same results as if the legislation were !alid.@ *bbott . dissented with the opinion that such an order was outside court )urisdiction.
Ama Potas! v ' Government of "as#atc!ewan )176* 71 ('L'' #! rd& 1 #$"& Su/reme Court of Canada • •
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The appellants, including *maE, produce potash for national and international sale. #n $%2&, Saskatchewan passed ?an *ct to *mend The Mineral TaEation *ct@, $%2G2& 'Sask.(, c.5, which ga!e powers to the Lt. o!ernor in "ouncil to make orders for the taEation of potash producers 's.5a(. Shortly thereafter, the Lt. o!ernor made /otash 9eser!e TaE 9egulations, $%2&, imposing a uarterly taE on potash, based on a percentage of the !alue of production. The taE could amount to N$6,666,666 annually. #f companies didnBt pay taE, they would be sub)ect to fines and sei>ures, e!en though the !alidity of the taE was in litigation as it may ha!e been indirect. /ercentage taEes are indirect because they tend to be passed on. #f it were a property taE, it would be direct and therefore !alid for a pro!ince to le!y.
Constitutional Law • • •
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0irect TaE: TaE whose natural tendency is to be borne by the person who first pays it. #ndirect TaE: TaE intended to be shifted to others. #n correspondence with the Minister of 3atural 9esources of Saskatchewan, *maE established their intent to pa y the taE under protest, and reuested an assurance that the money would be returned in the e!ent that the taE was declared ultra vires. Their argument is that money paid under mistake of law is treated as money paid under mistake of fact, which is reco!erable. The Minister refused that assurance and threatened unspecified action if the money were not paid. The appellants had reuested that the money be paid pursuant to a court order and not the statute, so that it might be reco!erable. This motion was dismissed by ohnson . *maE reuested that the action be declared ultra vires and that they get back their cash. The pro!ince argued that s.5'2( of the /roceedings *gainst the "rown *ct prohibits legal action and retrie!al of cash paid, pursuant to s.%'$(, '$(, '$&( and '$( of the 4ritish 3orth *merica *ct, $+2. *maE suggested that s.5'2( may be ultra vires. 0ickson . agreed with the appellants with regard to s.5'2(. e stated that the pro!ision would gi!e both parliament and pro!incial legislatures the right to act in !iolation of the constitution and then make their actions constitutionally !alid, doing indirectly what they could not do directly. O#f a state cannot take by unconstitutional means, it cannot retain by unconstitutional means.O e referenced B.C. Electric and held the s.5'2( is ultra vires. Though *maE succeeded in ha!ing s.5'2( declared ultra !ires, they were denied their motion for an order of interim preser!ation of property. The money would ha!e to be paid to the pro!ince and repayment would be decided when the litigation is completed.
/roblem Set related to *maE: C: #f s.5'2( is cured by remo!ing the parts which bar reco!ery of taEes, is the section still bad1 *fter all, there needs to be some sort of indemnity for the "rown. #f the crown reuired ci!il ser!ants to be sub)ect to legal action, no one would work for the go!ernment. *: S.5'2( would need to be !alid outside the sphere of taEes as well, otherwise the section could pre!ent action for all kinds of colorable acts. •
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"inger v. $inistr% of Communit% and "ocial "ervices #andout& -ntario *i)isional Court 18&F!5 •
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4rian Singer is years old but functions at the le!el of a yearGold, due to a se!ere mental handicap. e also displays selfGin)urious beha!ior typical of autism. #n order to combat this beha!ior and maintain a positi!e uality of life for their son, 4rianBs parents ha!e authori>ed shock treatment for their son. * new law would reuire a patientBs informed consent for such treatment, which 4rian cannot pro!ide. To allow the treatment without consent would be contrary to the p ersonal security assurances of s.2 of the "harter. Dhite . allowed the treatment, after hearing that it was the only one that 4rian has responded to. The legislation was deemed to be in!alid in this case because the patient would be worse off without the treatment. 3ot treated in same way as F Hoffman-a !oche.
&. 'offman(La )oc!e v ' "ecretar% of "tate for Trade and *ndustr% )17%* " All '' 11"8 #$%1& 2ouse of Lords •
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The 9oche roup manufactures and holds patents for Librium and -alium. They are allowed to calculate their prices to recoup research costs and make a fair profit, but such calculations are sometimes skewed by inflating research costs to )ustify higher prices. Ine ad!antage of inflating research costs is that a company can force the public to build unnecessarily eEpensi!e facilities which will be reused for other pro)ects. The Secretary of State for Trade and #ndustry initiated an in!estigation, the Monopolies "ommission wrote a report, and it was decided that monopoly prices for the tranuili>ers eEist contrary to public best interest. The Secretary of State put forth the 9egulation of /rices 'Tranuillising 0rugs('3o ( Irder, $%2, sub)ect to appro!al of each house of /arliament. The "rown reuested an interlocutory in)unction to enforce lower prices pending that order. The 9oche roup appealed the in)unction on the ground that it was ultra vires. There are competing interests here. o The state pays for Medicare, and has a !ested interest in lowering prices on two particular drugs manufactured by L. o #f the in)unction is granted and the order that forms its basis is declared in!alid, the 9oche roup will ha!e unfairly lost an estimated J+ million.
Constitutional Law
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#f the in)unction is not granted, the current law will be undermined for as long as it takes to grant a decision on the larger issue. The 9oche roup, physicians, pharmacists, and e!en the "rown 'for paying Medicare costs( will all ha!e contributed to a breach of law for paying the illegal prices. 0efense: $. "ommission 'uasiG)udicial( acted against natural )ustice 'fair hearing and lack of bias(. audi alteram partem P hear both sides. $$2d G "ommission decides who shall be heard, and are obliged to hear those who are sufficiently interested. Lord 0iplock belie!es L has a right to a hearing. nemo )udeE un sau causa P nobody may be the )udge in his own cause. . /rices were calculated arbitrarily . State trying to take profits retro. o
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). v ' "wain )11* 5 C'' #% th& "5! #$57& Su/reme Court of Canada •
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Man attacked wife and kids, got committed to /enetanguishene Mental ealth "enter, impro!ed, and was released for trial. e did not plead insanity, but the crown did so for him and he was held indefinitely at Cueen Street Mental ealth "enter, in accordance with s.5&'( of criminal code, sub)ect to release by Lt. o!ernor. 3o hearing, no time limit, no criteria for in!oking s.5&'(. "ourt struck down the pro!isions of "riminal "ode that reuired psychiatric detention for those who ha!e been acuitted on ground of insanity, as contrary to ss.2 and % of the "harter. 4ecause of the possible danger in!ol!ed in releasing all insanity acuittees, the court granted months of temporary !alidity to allow preparation of new procedures. The downside of temporary !alidity is that it weakens law by promoting bad legislation which will be cleaned up when problems in!ariably result.
). v ' Br%dges )1<* 7% C'' #! rd& 1" #$6<& Su/reme Court of Canada •
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4ridges, accused of murder, asked about free legal aid when interrogated by police. /olice talked him out of seeing a lawyer by asking him is he had any reason to do so 'i.e. guilt( 4rydges made damaging statements that were later used against him in court. Trial )udge found for 4rydges, appellate court re!ersed decision, appellate court re!ersed re!ersal. Lamer . held that police ha!e a constitutional duty to ad!ise persons under arrest of legal aid, but adds 6 days of temporary !alidity in order to allow time for the changeo!er.
A.G. +uebec v ' Blai#ie )17* 1<1 ('L'' #! rd& !% #$!5!& =laiie 1> Su/reme Court of Canada •
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eld that CuebecBs "harter of the French Language '4ill $6$(, $%22 was in conflict with s.$ of the "onstitution *ct, $+2 because it purported to: o #ntroduce bills in the legislature in French only. ;nact statutes in French only. o S.$ says acts must be /*SS;0 and *SS;3T;0 to in both ;nglish and French. Cuebec has a history of making changes and adding translations to acts after theyH!e been passed. Cuebec argued that language falls under their )urisdiction through s.%'$( of the "onstitution *ct, $+2, but the protection of minority rights pre!ailed. The day after this decision, the legislature of Cuebec reGenacted in both languages all of the statutes that had only been enacted in French. Cuebec was only years in default and already had bilingual teEts of the acts. Ine o!ernight session was sufficient to fiE the problem. 'ogg /$$$&( S.$ of the "onstitution *ct reuires: o Simultaneous enactment of delegated legislation and statutes in both ;nglish and French. o ;ual authority and status for both the ;nglish and French !ersions.
A.G. +uebec v ' Blai#ie )181* 1"! ('L'' #! rd& 15 #$!5& =laiie "> Su/reme Court of Canada •
eld that only regulations made by the courts, the go!ernment 'Lt. o!ernor, ;Eecuti!e "ouncil and Ministers, as an eEtension of the legislature( or sub)ect to go!ernment appro!al were sub)ect to s.$ of the "onstitution *ct, $+2.
Constitutional Law
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2anito?a •
ow did parliament obtain power to create Manitoba in $+26 with the Manitoba *ct1 They didnHt ha!e the power until "onstitution *ct $+2$. See s. &, regulating powers o!er land that is part of "anada but not a pro!ince. S. 5 declares retroacti!ely !alid the Manitoba *ct. s. Manitoba *ct. ".* $.
$atriation • •
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Ince patriation takes place, #mperial law can no longer simply declare "olonial laws 'i.e. Manitoba laws( to be !alid. S.& allows amendment of the constitution by proclamation of the o!ernor eneral and appro!al of two federal houses and the assembly of the pro!ince in uestion 'of course the assembly of Manitoba is in this case in!alid(. *n amendment was worked out such that future legislation would be bilingual but the pre!ious legislation would be !alid retroacti!ely 'temporary !alidity( without ha!ing to be translated. "ircularly, this made the pro!incial assembly !alid, which allows for use of section &'&51(. "ase had to be heard by the Supreme "ourt directly from the /ro!incial Magistrate, because the "ourt of *ppeal did not eEist prior to $%6+. "ase had to be argued without using any unilingual acts.
)e $anitoba Language )ig!ts )185* 1 S'C'' 7"1 #$!71& Su/reme Court of Canada •
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"onstitution *ct, $+2 s.$: *cts of the legislature shall be p rinted and published in both ;nglish and French. Manitoba *ct, $+26 s.: *lmost same wording as the "onstitution *ct, $+2 s.$. ;ntrenches s.$, creating manner and form reuirements for future legislation. Manitoba enacted the Ifficial Language *ct, $+%6: 3otwithstanding any statutes or laws, Manitoba is going to use only ;nglish in their *cts and records. *n *ct 9especting the Iperation of s. of the Manitoba *ct in 9egard to Statutes, $%+6 '*9IM*( s.&'$(: Legislation introduced in one Ifficial language would be translated into the other language after enactment and the translation would ha!e the same force and effect. Cuestions put to the court: *re the reuirements of s. and s.$ mandatory1 '*: Qes( *re statutes and regulations not printed and published bilingually in!alid because of s.1 '*: Qes, but they are temporarily !alid until translated.( #f in!alid, do they ha!e any force or effect1 '*: Qes, because of temp. !alidity( *re any pro!isions of *9IM* inconsistent with s., and of no force or effect1 '*: #f *9IM* was not printed and published bilingually, it is completely in!alid and of no force or effect. ;ither way, ss.$G5 are in!alid and of no force or effect because they are at odds with s. in purporting to authori>e: o
@ssues related to the de facto doctrine and res udicata •
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The doctrine implies that if someone took control o!er all or part of the legislati!e process 'happened in Spanish parliament(, then their laws might be relied upon and the conseuences protected by the de facto doctrine. Fraud may be grounds to set aside contracts, but if acts were to be treated as !oid all the time then there would be little stability. The rules in this respect must be applied narrowly to acts. Dhat happens if a bunch of students take parliament and start enacting laws1 "ourts may ha!e to apply them. '-ice de "onsentement1( 0i!orces, name changes used to ha!e to be done through pri!ate legislati!e acts. #n "uBoulay v. "uBouley on the French island of St. Lucia, a con!ict took on the last name of a prominent family and got to keep it.
Bilodeau v ' A.G. $anitoba )186* ! W'W'' 67! #$!8& Supreme "ourt of "anada
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*ppellant was charged with speeding contrary to the ighway Traffic *ct, ".".S.M., c.$$6, recei!ed a summons to appear in court pursuant to Summary "on!ictions *ct, ".".S.M., c.S6. *ppellant argued that both acts were ultra vires the legislature of Manitoba because they were not bilingually printed and published as reuired by s. of the Manitoba *ct, $+26. 0ickson ".." deli!ered the )udgment that: The Summary "on!ictions *ct is in!alid because it contra!enes s. of the Manitoba *ct by being printed o and published only in ;nglish. The summons issued under the act is not sub)ect to challenge, howe!er, because of the de facto doctrine 'gi!es effect to eEpectations of those who relied upon in!alid laws.( The summons itself is also not sub)ect to challenge for being printed in ;nglish only, because this is not o reuired by s.. o The ighway Traffic *ct is in!alid because it contra!enes s. of the Manitoba *ct by being printed and published only in ;nglish. This act is not sa!ed by the de facto doctrineK the doctrine does not preser!e a con!iction under an in!alid statute when the !alidity of the statute was raised in defense. The con!iction is instead sa!ed by the rule of law principle, which pro!ides temporary !alidity to laws not been sa!ed by the de facto doctrine, res #u$icata, or mistake of law in order to a!oid madness of colossal proportions. Dilson . agreed with the others, but felt that the unilingual summons !iolated s.. The court recogni>ed that the appellant successfully challenged the two statutes and was only con!icted in order to a!oid legal chaos. is costs were awarded. The de facto doctrine and rule of law principle were referenced from !e Man. anguage !ights 7$%+58 $ S.".9. 2$.
"everance •
#f a part of legislation or contract is in!alid then the whole thing might be bad. "riminals could then claim that all laws are in!alid because some unrelated section of the code 'license renewal( happens to be in!alid. The concept of se!erance is that the bad sections of a piece of legislation are remo!ed from the good parts, which can ideally stand on their own legal footing.
Tetual Se/erance •
Su?stantial Se/erance •
Se/erance Clause •
/laced into statutes to indicate an intention that each section stand independently, in a case of se!erance. #n theory, it re!erses the presumption against se!erance.
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* statute and all its parts collaborate to support one intention. #n cases where se!erance of one portion is contemplated, it is most often found that the remaining portion would not by itself further the pith and substance of the whole statute and the whole statute must fall as in!alid. *ccording to ogg '/25(, the /ri!y "ouncil and the Supreme "ourt of "anada rarely consider se!erance to be appropriate 'eEcept in "harter infringement cases(, largely because of this pith and substance consideration.
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%$.% gi!es to federal )urisdiction co!ering anything not in the pro!incial enumeration. Specific pro!isions o!errule more general ones. 3otre 0ame de 4onsecours municipal law ordering that ditches be cleaned does apply to federal railways1 #n cases where the railway 'federal( clashes with municipalpro!incial laws, the railway tends to win. 9ailway declared to be for the ad!antage of "anada.
A'0''C' /' A'0' Canada )1!7* A'C' !77 #$8& %ri)y Council, on a//eal from the Su/reme Court of Canada
Constitutional Law •
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The 3atural /roducts Marketing *ct, $%& '3/M*(, as amended by the 3atural /roducts Marketing *ct *mendment *ct, $%5, created a 0ominion Marketing 4oard, which has the power to regulate all aspects of natural products trade. That these powers eEtend for no reason in areas of trade that solely concern commerce within the pro!ince, is ultra vires the 0ominion /arliament. Lord *tkin deli!ered the )udgment that the powers of the board were far ultra vires the )urisdiction allowed by s.%$'( of the "onstitution *ct, $+2. The power to control internally marketed goods interfered with the powers of the pro!ince to do so, under the category s.%'$(. #f local goods are controlled, they may be at a competiti!e disad!antage to foreign products. The 3/M* screws local farmers. S. of the act directs that in the e!ent that a section is found ultra !ires or inoperati!e, that section should be se!ered and the rest of the act should stand independently. 3otwithstanding a se!erance clause which indicated the intention that each section stand independently, the /ri!y "ouncil held that the teEture of the act is ineEtricably interwo!enK that the only intra vires sections are s.% and part , both of which are ancillary to the others and can not stand on their own.
A.G. Alberta v ' A.G. Canada )1%7* A'C' 5
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This was a leading case on se!erance in "anada. "ertain radical statutes are born out of the depression and drought, notably the *lberta 4ill of 9ights *ct. The preamble of the act discusses rights of *lberta citi>enship, such as employment, pension, education and medical care. #t positions these rights as the product of two world wars, and charges *lberta with the duty of ensuring these rights are made a!ailable to *lberta citi>ens and the duty of those citi>ens to en)oy them 'the substance of /art $.( To this end, it mandates *lberta to use the resources at its disposal, including control o!er the creation of credit as outlined in /art . 4anks lend the same money o!er and o!er, such that N$666 in deposits can be created out of an initial N$66 deposit R a $6 reser!e rate. #f there were a run on the bank, the central bank would ha!e to step in. /art reuires that credit institutions of *lberta carry *lberta "redit "ertificates to maintain a $66 reser!e on deposits, in essence managing their credit eEpansion. *re they trying to create enough money to eual total transactions, forgetting that money is reused and should not be multiGcounted1 /art also authori>es a pro!incial 4oard of "redit "ommissioners to enforce its rules with fines, license suspension and imprisonment. The Supreme "ourt of *lberta found /art of the act to be ultra vires the legislature of *lberta because it was in pith and substance related to banking, which is federally regulated under s.%$'$5( of the "onstitution *ct, $%+. The *.. for *lberta claimed that the section was not related to banking, but property and ci!il rights in the pro!ince, which falls under pro!incial )urisdiction in s.%'$(. /art $ was found to be intra vires, !alid and se!erable from the rest of the act. #n this appeal, the *.. for *lberta wants /art declared intra vires and in a cross appeal the *.. for "anada wants /art $ declared inse!erable, so that the entire act falls. *re the ci!il rights sections se!erable 'able to stand on their own and be !alid( if the other parts are declared in!alid1 /ri!y "ouncil says /art $ is inse!erable and useless. The whole act falls. Scott says the first part was put in the act as H4ill of 9ightsH decoration, but that alone does not necessarily make them useless. e thinks s.G+ may be !alid. Dhere the effects of in!alidity are eEpected to be considerable, there is a certificate of !alidity in play.
2adden /' :elson and ort She--ard y' Co' •
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"ase held that "/ rail does not ha!e to put up fences along its route to pre!ent hitting cattle. /ro!ince does not ha!e )urisdiction. Lord alsbury G Qou canHt do indirectly what you canHt do directly. 4
A.G. "as#atc!ewan v ' A.G. Canada )1%* A'C' 11< #$68& %ri)y Council, on a//eal from the Su/reme Court of Canada • •
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9e Farm Security *ct of Saskatchewan #n the case of a crop failure, s. of the Saskatchewan Farm Security *ct, $%&& declares: $( /urchaser does not ha!e to make principal payments during the period of suspension. ( Such payments are automatically postponed for one year. ( The principle will shrink to the eEtent that interest is charged, effecti!ely nullifying interest charges. This legislation is fa!orable to debtors 'farmers with !otes(, with risk and responsibility falling on creditors.
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-iscount Simon deli!ers the )udgment. Dhile property transfer falls under pro!incial control, interest does not. /aragraph of s.'( is ultra vires the pro!incial legislature and !ery colorable, in that it clearly seeks to circum!ent interest payments, which fall under federal powers through s.%$'$%( of the "onstitution *ct, $+2. *ll three paragraphs are ineEtricably intertwined and s.'( should collapse in its entirety. The pith and substance of s. re!eals that it is largely concerned with interest. The appeal is dismissed. Should the whole farm security act collapse, according to the se!erability test1 Dhat about the sections that let people to li!e on their land after it has been repossessed1 Scott thinks the rest of the pro!isions are !alid and stand independently of the se!ered portions.
-un#le% v ' Evans )181* ! All '' "85 #$7%& •
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The Dest "oast erring Irder, $%2+ prohibited fishing for herring in certain areas, including a !ery small portion of water '6.+ of the total area( that was not within the power of the Minister of *griculture, Fisheries and Food to prohibit under the Sea Fish *ct, $%2. The appellant was con!icted of fishing in an area to which the )urisdiction did eEtend, but argued that the MinisterBs order was ultra vires in entirety, because teEtual se!erance was not possible. Irmrod L.. held that the order would stand, because it passed the test of substantial se!erance. The fact that the teEt doesnBt lend itself to surgical teEtual se!erance does not mean that it should fail.
-a%mond v. "out! est ater Aut!orit% )176* 1 All '' ! #$7%& •
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S.6'$( of the Dater *ct $%2 ga!e power to water authorities to collect fees. Dhen it came time to collect a general ser!ices charge for sewerage ser!ices, there was protest on the part of a man whose property was not connected to a sewer. The law clearly did not apply to him, although it did not say so. The ouse of Lords held, to , that there was no authority to charge those who are not connected to sewers. Though there was no discussion of se!erability, the teEt satisfied the test of substantial se!erability, should the in!alid portions be remo!ed.
-.P.P. v ' 'utc!inson )1<* " All '' 8!6 #$7"& %ri)y Council •
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ean ;mily utchinson and eorgina Smith entered a military airbase that was set up on reenham "ommon land under the authority of the Military Lands *ct $+%, which allowed the Secretary of State and 0efense to make byelaws appropriating and regulating land for military purposes. The byelaws were !alid unless they interfered with rights of common. #n this case, there are $ parties that had rights of common to the reenham lands and were being kept out for security reasons. The appellants did not ha!e rights of common, but appeal on basis that the byelaws were in!alid nonetheless. "ollateral challenge to the !alidity of an instrument. #s the byelaw se!erable1 There was unanimous agreement that the appeal should be allowed on the grounds that the offending portions of the byelaw cannot be se!ered teEtually or substantially. #f they were to allow access to anyone ha!ing rights of common, the security of the airbase would disappear and the byelaw would substantially change. The whole byelaw is in!alid, and cannot be enforced against trespassers. *ppeal allowed.
Constitutional Eemption from Legislation Canadian Charter of i.hts and reedoms, s'1 B =easona?le Limits> •
i0hts and freedoms are su@4ect to reasona@le limits /rescri@ed @y law, 4ustified in free and democratic society.
Canadian Charter of i.hts and reedoms, s'1" B =Cruel Dnusual> •
i0ht to not @e su@4ect to cruel and unusual treatment or /unishment.
Canadian Charter of i.hts and reedoms, s'"%#1& B =@no-erati/e> •
>an indi)idual remedy for actions taen under a )alid law which )iolate an indi)iduals Charter ri0hts?
Constitutional Law
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Constitution Act, 18", s'5"#1& B =Su-remacy of Consitution> •
>striin0 down of any law that is inconsistent with the /ro)isions of the Constitution, @ut only Oto the e9tent of the inconsistency.?
). v ' C!ief )18* 7% C'' #!rd& #$78& B Charter s'"%#1& Euon Territory Court of A//eal •
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Trapper sentenced to $ days imprisonment after domestic dispute. The "riminal "ode s.$66 reuired that the defendant be prohibited from possessing firearms for 5 years, howe!er since the defendant depended on hunting for his li!elihood and family sustenance, the code contradicts s.$ of the "anadian "harter of 9ights and Freedoms. The trial )udge ?read down@ the code and, instead of imposing a fi!e year prohibition on possession of firearms, he restricted the defendant from possessing them on his residential property. The crown appealed. Mc;achern "..Q.T. dismissed the appeal, agreeing that s. $66 is cruel and unusual and does not treat all defendants eually, though it does apply fairly in most cases 'itBs not contrary to s.$ of "harter( and should not be struck down. e also says that the remedy must conform to s. &'$(, and the trial )udge was inappropriate in ?reading down@ the offensi!e s.$66. ;sson .*. concurs. They say s.$66 should be declared inoperati!e for the defendant and the probation order should be amended to include a reduced prohibition on firearms. Section was too broad, applied to too many cases. The law can continue to apply to the ma)ority of people.
"c!acter v ' T!e +ueen )1"* ! ('L'' #% th& 1 #$"& B CA 18" s'5"#1& Su/reme Court of Canada •
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"ontrary to the principles of "harter s.$5 'euality rights(, Schacter did not get paternity benefits when his wife ga!e birth, e!en though s. 6 of
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$c/a% v ' T!e +ueen )165* S'C'' 78 #$8"& B Dltra Vires Su/reme Court of Canada •
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oning bylaws permit certain signs on premises, but do not list federal election signs. Moses and Sarah Mc=ay were con!icted of putting up such signs on their property. 5 to & di!ision. Taschereau ".. and "artwright, *bbott, udson and Spence . read down by se!ering the appropriate section. oning law is in relation to property and ci!il rights in the pro!ince, which is under pro!incial power in s.%'$(.
Constitutional Law •
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:oteE o.. a.rees with the dissent 1, as does (icson C';'C ", em-hasiFin. -ith and su?stance doctrine .
:G Wine Statute ound Dnconstitutional #andout& •
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Iut of state wines cannot be shipped directly to the consumer, but must be purchased through wholesalers. 3Q state produced wine can be shipped within the state to final consumer. This protectionist measure is ultra vires the state. Solution: Se!er the part about 3Q1 Se!er e!erything1 Scott says refusing the eEception transforms the law too much '3Q being much worse off(, and that the whole thing should fall.
Ladore v ' Bennett )1!* A'C' %68 #$1"<& %ri)y Council, on a//eal from the Court of A//eal for -ntario •
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The municipalities of Dindsor, ;ast Dindsor, Sandwich and Dalker!ille were on the !erge of insol!ency, and so they were all merged into The "orporation of the "ity of D indsor. The *malgamation *cts, Municipal 4oard *ct, $% and the Municipal *ffairs *ct, $%5 all contributed to consolidating and managing the debts of the new municipality, including postponement of payment and !ariations in terms, including interest. Lord *tkin says that the acts are, in pith and substance, of relation to Intario municipal institutions and )ustified under s.%'+(. #f these acts interfere with bankruptcy and insol!ency pro!isions 's.%$'$(( or interest 's.%$'$%((, then that should be considered an incidental effect. *ppeal dismissed.
Board of Trustees of Let!bridge v ' *ndependent 0rder of &oresters )1%<* A'C' 51! #$1"5& %ri)y Council, on a//eal from the Su/reme Court of Al@erta •
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o!ernment cuts interest on bonds, so the pro!inces cut interest on pro!incially guaranteed bonds in an effort to sa!e money, using the following acts: o S. of the /ro!incially uaranteed Securities /roceedings *ct, c.$$ of $%2 '/rohibits action for the reco!ery of money payable under guaranteed securities.( o S. of the /ro!incial uaranteed Securities #nterest *ct, c.$ of $%2 '9educes rate of interest on securities guaranteed by *lberta.( The /ro!incial Securities #nterest *ct, c.$ of $%2 '9educes rate of interest on securities issued by o pro!ince.( -iscount "aldecote L.". deli!ered the )udgment. The /ri!y "ouncil was not con!inced by the arguments brought forth by the appellant 'Lethbridge.( The pith and substance of these acts is clearly interest, which falls under s.%$'$%( of the "onstitution *ct, $+2. There can be no uestion that the #nterest *ct of $%2 already deals with this sub)ect. ere, the pro!ince has altered liability on bonds and then pre!ents reco!erable action with c.$$. That pro!ision was struck down as being colorable. #f it were allowed, the pro!ince could reco!er interest through the courts that could not be contested, doing indirectly what they could not do directly. This case is distinguished from Ledore !. 4ennett, where intrusion into the federal sphere was deemed incidental. 'See *meE, 4" ;lectric for similar eEamples of reco!ery denied.(
ill of i.hts B Assented to on Au.ust 1<, 16< •
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S.: ?;!ery law of "anada shall, unless it is eEpressly declared by an *ct of the /arliament of "anada that it shall operate notwithstanding the "anadian 4ill of 9ightsU@ is sub)ect to it. Laws must eEpressly mention the bill in order to be inconsistent with it. Manner and form issue. Law which dictates how other laws are to be made.
A.G. 0ntario v ' Barfried Enterprises )16!* 5 C'' 57< #$115& Su/reme Court of Canada •
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The
/eter ogg, Constitutional aw of Cana$a% "arswell, 66, p+5G+. &.'.(.E.) v. *.+. &nt. 7$%+28 &$ 0.L.9. '&th( $5
Constitutional Law
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Carnation Compan% v ' +uebec Agricultural $ar#eting Board )168* S'C'' "!8 #$1<& Su/reme Court of Canada, on a//eal from the Nueens ench, NC •
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The Cuebec *gricultural Marketing 4oard 'C*M4( was created by the Cuebec *gricultural Marketing *ct, $%55G5 'Cue.(, c.2. #t authori>ed a /roducersB 4oard to negotiate with "arnation on behalf of its farmers a trade price for their milk. Dhen they could not come to an agreement, the C*M4 used its authority to determine the price that "arnation would pay. *s "arnation eEports much of itBs production outside the pro!ince, they claimed that the C*M4 was ultra vires in setting the price and interfering with the regulation of trade and commerce, under federal )urisdiction pursuant to s.%$'( of the "onstitution *ct, $+2. "arnationBs appeal was dismissed, deli!ered by Martland ., because the pith and substance of the orders was to regulate only a specific relationship between the producers and "arnation. There is no e!idence that they either tried, or succeeded to control trade and commerce outside that sphere. *ny intrusion to that effect is incidental.
"elf(imposed restraints on legislative power estraints as to the su@stance of future lawsI
Condition $recedent must be fulfilled before a contract will become effecti!e. Condition Su?seHuent is one which dissol!es a contract.
*n )e T!e *nitiative and )eferendum Act )11* A'C' !5 #$1!& /ri!y "ouncil, on appeal from the "ourt of *ppeal of Manitoba The #nitiati!e and 9eferendum *ct ' eo. 5( c.5%, Manitoba, s.2 confers upon electors of that pro!ince the power to make law by !oting on proposals, sub)ect to !eto and disallowance of the Lt. o!ernor in "ouncil. S.$$ of the same act allows the population so repeal laws and acts through the same !oting mechanism. Lt. o!ernor argued that this lea!es his out of the loop. The first hearing held that the act was intra vires, but the "ourt of *ppeal disagreed. The case was taken straight to the /ri!y "ouncil without stopping at the Supreme "ourt of "anada. -iscount aldane deli!ered the )udgment, declaring the act ultra vires because: The Legislature of a pro!ince cannot confer its powers upon a body other than itself. o o The power to amend the constitution of the pro!ince, s.%'$( of the "onstitution *ct, $+2 specifically eEcepts the office of the Lt. o!ernor. istorically, the Lt. o!ernor is as much an independent representati!e of the Cueen as is the o!ernor eneral, and is outside the )urisdiction of the pro!ince. o S.2 of the act dispensed with the assent of the Lt. o!ernor for proposed bills, ?renders him powerless to pre!ent it from becoming an actual law@. The Lt. o!ernor is ?wholly eEcluded@. "anada does not ha!e the same !eto rules that you see in <.S. 9oyal assent is the issue here, and is not pro!ided for. The /ri!y "ouncil found the offending pro!isions to be ?so interwo!en into the scheme that they are not se!erable.@ 3ote: Legislature can alter the constitution with s.%'$(s.&5 sub)ect to certain constraints: Inly refers to the internal constitution of the pro!ince. 'see *.+. ,uebec v. Blaiie 7$%2%8 S.".9. $6$( o o Must respect the offices of the crown. Since s.%'$(s.&5 are not amendable by the pro!ince, there must always eEist a legislature of some form in o the pro!ince. 'Manitoba "* inferred this case to be an attempt to replace the pro!incial legislature with direct legislation not understood by s.%'$(.( •
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$cCawle% v ' T!e /ing )1"<* A'C' 61 #$18!& %ri)y Council, on a//eal from the 2i0h Court of Australia •
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#ndustrial *rbitration *ct, $%$ s. allows for creation of "ourt of #ndustrial *rbitration '"#*( presided o!er by )udges who sit for 2Gyear terms until reappointment. S.'5( indicates declares this court to be a branch of the Supreme "ourt. S.'( says o!ernor in "ouncil can appoint any "#* )udge to be a Supreme "ourt )udge 'an appointment that lasts during good beha!ior.( #n $%$2, Mc"awley was appointed "#* )udge and then commissioned by the o!ernor to be a Supreme "ourt )udge. The commission is ob)ected to by Fee> and Stumm 'relators1(, who challenge the uo warranto 'right by which someone holds )udicial office( behind it on the basis that: #ndustrial *rbitration *ct s.'( is contrary to "onstitution *ct of Cueensland, $+2 and is therefore ultra !ires. o o o!ernor has no authority to appoint Supreme "ourt )udges for life
Constitutional Law •
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The ma)ority of the court agreed. The only dissent was from 9eal . saying that s. is a legal modification of the pro!isions of the "onstitution *ct, e!en if they are inconsistent. Mc"awley appealed unsuccessfully to the igh "ourt of *ustralia, in a & to decision. Lord 4irkenhead and the /ri!y "ouncil decided to allow the appeal, o!erturning the decisions of the igh "ourt of *ustralia and the Supreme "ourt of Cueensland on the basis that: The "onstitution *ct of Cueensland is not controlled, not is it uncontrolled. #T can be modified by acts o respecting the reuired manner and form. o The #mperial *ct, s.2 pro!ides the Legislature of Cueensland ?Full powerUto make further pro!ision@. o The "olonial Laws -alidity *ct, $+5 s.5 pro!ides the Legislature ?full power to make Laws respecting the "onstitutionUpassed in such Manner and Form@. The #ndustrial *rbitration *ct s.'( is not ultra !ires and, e!en if it were, the language of the commission is o interpreted to mean that the Supreme "ourt appointment would end as soon as a "#* )udge were to step down from his former court '2Gyear term.( *s stated in s.$a of $ -ict., 3o. 'Cueensland( ?eEpressions used in the instrument shallUha!e the same respecti!e meanings as in the *ct conferring the power.@
Construe condition so that it sur)i)es rather than /erishes. The difference @etween ser)in0 durin0 0ood @eha)ior and ser)in0 for 7 years is reconciled @y readin0 down.
A.G. 1.".. v ' Tret!owan )1!"* A'C' 5"6 #$""8& %ri)y Council, on a//eal from the 2i0h Court of Australia •
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"onstitution *ct, $%6 enacted by legislature of 3.S.D was amended in $%% by adding s.2a '?no bill for abolishing the Legislati!e "ouncil or repealing this section should be presented to o!ernor for CueenBs assent until it had been !oted on by a ma)ority of electors.@( The Legislati!e "ouncil becomes entrenched, but since itBs conser!ati!e and retards change, people want it gone. #n $%6, both houses of the legislature passed bills to repeal s.2a and to abolish the Legislati!e "ouncil, without the bills ha!ing been appro!ed by referendum. Members of the Legislati!e "ouncil sued ohn /eden and the * for trying to sidestep s.2a and won in)unctions pre!enting the bills from being presented for assent. #n)unctions pre!enting law from passing are difficult to get, because if the law e!entually gets passed but has been delayed, there is irreparable time lost where the law should ha!e been effecti!e. -alidating the need for in)unctions sometimes reuires symbolic action, such as getting booted off the high court train. The defendants appealed unsuccessfully to the igh "ourt of *ustralia, before pleading their case to the /ri!y "ouncil. eld that the legislature was within its rights to add s.2a to the "onstitution *ct, $%6, based on s.5 of the "olonial Laws -alidity *ct, $+5, and that the two bills cannot be presented to the o!ernor for 9oyal assent until !oted for by the ma)ority. ?colonial legislature shall ha!eUfull powerUto make laws respecting the constitution, powers and procedure of such legislatureUpassed in such manner and form...@ * referendum as specified in s.2a fits into the meaning of ?manner and form@ described in the "L-*, $+5. The bills were not lawfully presented.@ V s.5 "olonial Laws -alidity *ct, $+5
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There are inherent limits on legislati!e so!ereignty. Ferguson . of the lower court says '/6( parliament canHt bind itself in <=, does not mean it is beyond the power of the king to do so, but you canHt pass a law today which canHt be repealed by whate!er power structure eEists tomorrow. 'Middle /6 lists cra>y changes that might be made.( 2a may be !alid, but 2a'( goes a little far in pre!enting 2a from being repealed. #f the effect is to make the law unrepealable, then it runs contrary to the constitution.
Ellen "treet Estates v ' $inister of 'ealt! )1!%* 1 9'' 5< #$17& Court of A//eal •
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London "ounty "ouncil wants to clear out an area that includes the plaintiffBs house, and compensate him through compulsory acuisition 'eEpropriation.( /laintiff ob)ects under the ousing *ct $%6, and complains that the purchase price was calculated by an arbitrator using the ousing *ct $%5, which is inconsistent with the *cuisition of Land *ct $%$% and restricted by s.2'$( of that same act. ;llen Street ;states wants the earlier act to pre!ail o!er the later acts. Scrutton L.. says that is ?contrary to the constitutional position that /arliament can alter an act pre!iously passed.@ #f /arliament could declare its statutes unrepealable, then a go!ernment could entrench its policies e!en after a new party has been elected. Maugham L.. and Talbot . agree. They read the *L* $%$% as not ha!ing the appropriate manner and form instructions 'Omust eEpressly state notwithstandingO( to control later acts. 'See Trethowan case(
Constitutional Law
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T!e Commission of $arcel &aribault )167* #$181, 18"& •
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"ommission appoints Faribeau to be Legislati!e "ouncillor for the 0i!ision of 9epentigny until HpleasureH dictates his dismissal. 3ormal appointment to the Cuebec upper house is until age of 25. #s this !alid1 3o, the commission canHt do that. Dhat are the remedies1 o The commission is good and Faribault gets to stay until he is 25. o "ommission is bad. 0ifference between this and Mc"awley is that the term would ha!e to be #3"9;*S;0 in this case, gi!ing MI9; than what was intended. '4ought the tires, gets the whole car.(
)e 0ntario Public "ervice Emplo%ees 2nion v ' A.G. 0ntario )187* %1 ('L'' #%th& 1 #andout& Su/reme Court of Canada •
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Three members of the union 'crown employees and ci!il ser!ants( want to engage in political acti!ities prohibited by the /ublic Ser!ice *ct, 9.S.I. $%+6, c.&$+ '/S*( of Intario. These acti!ities include running for election to /arliament without lea!e of absence, soliciting funds, and publicly eEpressing opinions on federal issues. The Intario /S* restricts acti!ities in the following ways: S.$ restricts crown employees from running while working and, should they get elected, reuires that they o resign from their former position. o S.$ forbids can!assing on behalf of candidates. S.$& reuires a lea!e of absence for those who want to eEpress political !iews that support a pro!incial or o federal party. o S.$5 restricts any assistance to political parties to nonGworking hours. o S.$ threatens dismissal for failure to respect any of the abo!e restrictions. 4efore the "harter of 9ights and Freedoms, the Supreme "ourt of Intario decided 'for the defendant( based on distribution of powers by the "onstitution *ct, $+2. o /laintiffs argued that Intario could not interfere with federal elections. o 0efendant says %'$(, '&(, and '$( support the /S*. Labrosse . agreed that the pith and substance of the *ct was labor relations, pro!incial )urisdiction !alid under %'$( '/roperty and "i!il 9ights1( The incidental effects on federal elections could be forgi!en for ensuring impartiality and protecting ci!il rights. 0ickson . declines to allow "harter arguments, because they had not been discussed in the pre!ious hearings. e denied the appellantsB assertion of inter)urisdictional immunity '?legislation enacted by one order of go!Bt cannot interfere withUthe other order of go!Bt@(, based on pith and substance doctrine '?a law Ain relation toB a pro!incial matter may !alidly AaffectB a federal matter.@( and the federal legislati!e ability to protect itself. 4eet> . says the pro!isions are constitutional in nature and ?constitute an ordinary legislati!e amendment of the constitution of Intario, within the meaning of s.%'$( of the "onstitution *ct, $+2.@ e also supported his conclusion with s.%'&(, which allows pro!inces to appoint pro!incial officers 'operating in harmony with the federal eui!alent.(
;oteI !#$1' is now s.&5 of the Constitution Act, 1!8#. !#.&.
)e Eurig Estate )18* " 'C'S' 565 #andout& Su/reme Court of Canada •
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Mary ;urig is the eEecutor of her husbandBs estate and is being charged N52$6 in ?probate fees@ in order to obtain letters probate 'e!idence that she owns husbandBs property.( The *uthority behind these fees is the *dministration of ustice *ct s.5c and I. 9eg. %% s.'$(. ;urigBs case was dismissed by the Intario "ourt and "ourt of *ppeal. Lamer ".. and lBeureuEG0ubW, "ory, #acobucci and Ma)or allow the appeal because: o 4ased on the decision of 0uff . in awson, the probate le!y is a taE, not a fee. #t is enforceable by law, le!ied by a public body, intended for a public purpose, and there is no reasonable neEus between the amount charged and the cost of the ser!ice pro!ided. *lthough direct taEes are intra vires the pro!ince, pursuant to s.%'( of the "onstitution *ct, $+2, s. 5 o 'through s.%6( reuires that pro!incial bills for taEes shall originate in the legislature. S.5 has not been eEpressly amended so it is still the law and the law as such pre!ents obscure and unfair taEing. o S.5 of the *dministration of ustice *ct allows the Lieutenant o!ernor in "ouncil to impose fees, but not taEes. This taE is therefore ultra vires s.5. McLachlin and 4innie . disagree with Ma)or . on the issue of s.5. They say it does not apply here because 9eg. %% is not a bill. Lt. o!ernor can be authori>ed to taE, but must be gi!en that authority in clear and unambiguous language.
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onthier and 4astarache . 'dissenting( argue that: Dith the abolition of bicameral legislature at the pro!incial le!el, the intention of s.5 no longer applies. ;!en o if it does apply, the *dministration of ustice *ct was introduced in the Legislati!e *ssembly of Intario and is simply delegating taEing powers to the Lt. o!ernor in "ouncil. They argue that the ?fees@ described in s.5 is broad enough to include direct taEes. 3ote: *s of the "onstitution *ct, $%+, the "onstitution is no longer a 0og *ct, and reuires eEpress repeal. #t canBt be amended simply by passing inconsistent legislation. Scott is skeptical of this decision.
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S.&$ laws are highly entrenched, whereas those that reuire special mention are sort of Hlow le!elH entrenchment. #s s.&$ is so broad that it can be used to create a na>i state1 #s it possible to pass an amendment by normal process to delete a pro!ision causing you trouble, then proceed to do what you wanted to do in the first place1
Constitutional issues • • •
Le0itimacy of 4udicial re)iew. Values, interests ad)anced or com/romised @y con law. %ers/ecti)es of e)aluation $w. other disci/lines'
-ivision of Powers nter/retin0 the di)ision of /owers as laid out in the constitution Act, 1867
CharacteriFationE Ste-s of @nter-retation #$"15& 1' dentify matter $/ith' of law. #' %lace it in !1 or !#. See Case@oo %#=5F#1#
2or.entaler =$ro/ince does not ha/e criminal 3urisdiction> • •
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Turned on how the law was characteriHed. *r. 3or0entaler wanted to o/en an a@ortion clinic in ;o)a Scotia, and was char0ed under the 3edical Ser)ices Act. Ar0ues that the law is in)alid @ecause it was ultra )ires the /ro)ince and )iolated s.7 of Charter. %ur/ose outlined in the te9t $on its face' %ur/ose clauseI %ro)ince has 4urisdiction o)er health re0ulation, limitin0 /ri)atiHation, /ro/erty o and ci)il ri0hts. Actual /ur/ose of law was to shut down a@ortion clinic )idence of du/lication o Criminal had code already /ro)ided structure relatin0 to a@ortion, @annin0 /ri)ate clinic a@ortion. *u/lication, howe)er, can @e e9cused if it is incidental and necessary to an otherwise valid /ro)incial law. 2ere the du/lication was colora@le and used as e)idence. /enalties are )ery se)ere $P5=MoffenseK', @ut not when considerin0 the l!crative nat!re of the clinics. 2ere, /enalties are used as more e)idence of du/lication. The smoin0 0unI egislative histor indicates that the law was created to /unish *r. 3or0entaler, o enacted as soon as he set u/ his /ractice. n addition, statements made @y /oliticians $2ansard e)idence' su//ort that conclusion. Are they admissi@leK Ees $%#17'
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Althou0h the le0islature does not need to show studies to @ac u/ all laws created, the a1sence of st!d results here su//orts the idea that this law is not economically @ased. n fact, later oyal Commission results were in fa)or of clinics.
(i/ision of $owers (octrines •
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/ith and S!1stance I Laws u/held e)en if they ha)e an incidental effect outside 4urisdiction. $e9I Carnation' 2ecessar incidental Mancillary effects. o!1le aspect I t is /ossi@le for fed and /ro)incial laws to coe9ist e)en if they seem similar, if they are rou0hly eGui)alent in im/ortance. $Lederman' nter6!risdictional mm!nit I 9ce/tion to incidental effect, limits a//lication of /ro)incial le0islation, e)en when no federal le0islation e9ists.
02 /' City :ational Leasin. )18* 1 SC 6%1 #$""5& Su/reme Court *icson C
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$ultiple Access v. $cCutc!eon )18"* " SC 161 #$"!"& =(ou?le as-ect> Su/reme Court Canada Cor/orations Act and -ntario Securities Act @oth /rohi@it insider tradin0. 3ulti/le Access was accused of insider tradin0, @ut ar0ued that @ecause they are federally incor/orated they cant @e touched @y the /ro)incial law. Statute of limitations on the federal law had la/sed. *icson <. characteri7ed the federal law as in relation to the raising of capital and other acti)ities, fallin0 under the reg!lation of federally incor/orated com/anies, and not primaril in relation to provincial sec!rities . The /ro)incial law was liewise )alid, in its different as/ect. o!1le Aspect . eetH disa0rees w. *icson, ar0uin0 that the /ur/oses of the laws are the same. • •
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Constitutional Law
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$c/a% v ' T!e +ueen )165* S'C'' 78 #$8"& B Dltra Vires Su/reme Court of Canada Ronin0 @ylaws /ermit certain si0ns on /remises, @ut do not list federal election si0ns. 3oses and Sarah 3c:ay were con)icted of /uttin0 u/ such si0ns on their /ro/erty. Taschereau C.<. $w. Cartwri0ht, A@@ott,
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"ante "ecurite du Travail v. Bell )188* 1 SC 7% #$"%6& =@nterI3urisdictional immunity, readin. down> •
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%re0nant woman claims settlement from ell throu0h Nue@ec scheme. ell a//eals, says /ro)incial law does not a//ly to federally re0ulated com/anies. 2ere, the law is o@)iously health and safety $/ro)incial' @ut not a//lica@le @ecause it affects a )ital /art of the o/eration of a federal undertain0. The law is read down to allow for inter6!risdictional mm!nit .
*rwin To% •
2eld that /ro)incial law /rohi@itin0 ad)ertisin0 to children under 1 " does a//ly to tele)ision.
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2o00 criticiHes interF4urisdictional mmunity $%#&1'. nconsistent with /ith and su@stance doctrine, which @y its nature allows laws in relation to o /ro)incial matters to >affect? a federal matter. o mmunity of federal undertain0s is unnecessary. Bederal /arliament can /rotect undertain0s @y enactin0 laws which trum/ /ro)incial laws. eetH disa0rees @ecause more laws would sim/ly com/licate thin0s fed law will /re)ail anyway. Borce @etter le0islation. %ro)incial workers compensation schemes ha)e @een u/held in federal com/anies, ar0uin0 that it does not affect the management of the com/any. %ro)incial adoption laws, famil laws do not a//ly to nati)e /eo/les @ecause of /otential infrin0ement. A 1andowned 1!siness was held @y eetH to @e su@4ect to /ro)incial la@or laws, since it was not a core ndianrelated 1!siness .
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9clusi)e 4urisdiction %ower stru00le eetH $doesnt @uy dou@le as/ect'
/eter ogg, Constitutional aw of Cana$a% "arswell, 66, p+5G+. &.'.(.E.) v. *.+. &nt. 7$%+28 &$ 0.L.9. '&th( $5
Constitutional Law
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2odern 2odel of (i/ision of $owers • • • •
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Overlapping , concurrent 4urisdiction ;ecessarily incidental, dou@le as/ect used more often. ;e0otiation, interFdele0ation *icson C
n 3ulti/le Access, ickson : ;eet7 agreed . hyK *octrineK AttitudeK
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A 4ud0eFmade rule Dsed only after the issues of )alidity $characteriHation' and a//lica@ility $interF4urisdictional immunity' ha)e @een determined. f valid federal /ro)incial laws conflict, the /ro)incial law is inoperative . 2egative mplication doctrine $>occu/yin0 the field? test' %arliament has /re/ared le0islation to @e com/lete in a /articular area. Conflictin0 /ro)incial laws o are therefore unnecessary and ino/erati)e. This doctrine was fa)ored in older cases. o %&press Conflict test $@oth laws o/erati)e unless it is im/ossi@le to o@ey them @oth' o This a//roach has @een used to u/hold /ro)incial dri)in0 offenses $see oss' as well as the leadin0 case, !ultiple Access v. !cCutcheon.
)oss v. )egistrar of $otor 3e!icles •
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Criminal code /unished drun dri)er, @ut allowed him to ee/ his dri)in0 license for wor /ur/oses. The /ro)incial re0istrar sus/ended his license anyway. The court found no e9/ress conflict here, @ecause o@eyin0 the stricter law $/ro)incial' co)ers @oth laws.
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*icson doesnt thin identical laws are incom/ati@le. $See !ultiple Access' Bor an e9am/le of incom/ati@le laws, see Ban of !ontreal v. $all
Ban# of $ontreal v. 'all #1<& 1 SC 1"1 #$"6%& •
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Barmer defaults on -3 loan. an tries to seiHe machinery, /ursuant to the federal @an act. A /ro)incial act reGuires notice. The /ur/oses of the two acts are different. The @an act facilitates lendin0 for de1tors, while the Sasatchewan act /rotects creditors . La Borest <. held that Bed. an Act /re)ails as a com/lete code. hy cant they com/ly with @oth laws @y 0i)in0 noticeK /!rpose. See /#6!&
Why should federal laws -re/ailK • • •
Structure of constitution, federal system. road democratic re/resentation a/s in co)era0e, %.-...
Constitutional Law
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Peace, 0rder, Good Gov4t Concerns • • •
federal 4urisdiction o)er anythin0 not co)ered in !1, !#. emer0ency /owers. national concern doctrine.
Viscount SimonI %- could @e used in emer0ency as well as for national concern. $an of Commerce, Bort Brancis, Snyder' 'ussell v. The )ueen $188#'I Le0islation /rohi@itin0 sale of diseased cattle allowed o/tin0 in out @y /ro)inces. Canada Temperance Act u/held in 1!#7 throu0h national concern. The Aeronautics case $1!"#' and 'adio case $1!"#' esta@lished that some le0islation can 0o @eyond local or /ro)incial concern and fall under %-. 1!"7 F STC2 @ac to emer0ency only )iew. $La@our Con)entions, m/loyment insurance.' Attem/ts of /arliament to inter)ene in the economy are struc down as ultraF)ires. %185 Scott /oem 1!&6 F %ost war, ;atl concern, %- mae come@ac for tem/erance. 1!&! F A//eal to %ri)y Council a@olished. SCC is last resort. 1!5# F
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)eference re Anti(*nflation Act =@nflation not a national concern> •
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Salaries, /rofit mar0ins, di)idends, wa0es, /rices controlled for certain com/anies in /ri)ate and /u@lic sector $a//lica@le to /ro)incial sector only throu0h a0reement.' The act was challen0ed @y /u@lic sector unions. %ro/erty and ci)il ri0hts ar0ument. y the de)ice of B;C, the o)ernor in Council sent this case directly to the SCC to determine whether or not the act was ultra vires and whether or not -ntarios a0reement to it was )alid. 3a4ority $7F#' led @y Lasin Crational @asis? for @elie)in0 there to @e one. eetH o An in)ocation of emer0ency /ower must @e clear, either in title or content. Such dramatic le0islation reGuires an unmistaa@le si0nal that emer0ency /ower is to @e used. %ream@le tals a@out serio!s national concern8 not emergenc . 9trinsic e)idence was introduced o from @oth sides. Li/sey says inflation is not an emer0ency, and le0islation wont sol)e the /ro@lem. The fact that the le0islation didnt a//ly to e)eryone also maes it seem lie less of a crisis. Standard of e)iew Sco/e $wide @ut not total' %ream@le $am@i0uous at @est'
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Constitutional Law
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9trinsic e)idence $am@i0uous' >est for invoking national concern The matter must ha)e >a de0ree of unity which maes it indi)isi@le,? /re)entin0 it from @ein0 so @road that it effecti)ely renders meanin0less a head of /ro)incial 4urisdiction. There must @e a /ro)incial ina@ility to deal with the matter. ;elieves /O?? is secondar to the division of powers. •
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The le0islation did co)er many industries, and that the /ro)inces were left o/en as a courtesy. QCourts should not consider the wisdom of le0islationQ $i.e. whether it wors or not.' eetH a0rees with this /oint, ha)in0 used sco/e sim/ly as e)idence. %- co)ers national concern which ma or ma not @e @rou0ht a@out @y emer0ency. eco0niHed that >national dimensions@ was not a winning arg!ment . Looed to rational 1asis for le0islators @elie)in0 in emer0ency. ;elieves /O?? is primar8 and div. of powers (B) onl e&planator.
itchie o
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:ational Concerns (imensions =@nflation not national concern> •
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eetHI nflation may concern e)erythin0 local, education, rent controls, etc... f inflation is deemed a national concern, why not other thin0sK Sli//ery slo/e of federal control. nflation as o//osed to aeronautics is not clearl defined . nflation, as o//osed to /ro/erty, is not on a list in B#. Controllin0 inflation was not the s!16ect matter of the le0islation. The su@4ect matter was the control of wa0es, /rices, etc. nflation is an a00re0ate of su@4ects, /er)asi)e, far reachin0, with no !nit or s/ecificity.
unctions of ;udicial e/iew • •
:ee/in0 the le0islature in chec Ad)isin0 on constitutional intention.
$hili- o??etts ;udiciary unctions $o@in lliot @orrows his material' Checin0 function Le0itimatin0 function Cuein0 function $to 0o)ernment, to other courts, to the le0al community, to the /o/ulation.' 9/ressi)e function $tellin0 us who Canada is' • • • •
). v. Crown 5ellerbac! Canada )188* 1 S'C'' %<1 #$! •
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Bederal Act /rohi@its dum/in0 at sea e9ce/t with /ermit. Sea is all waters of Canada e9ce/t inland and /ro)incial waters. The defendant dum/ed nonF/ollutin0 woodFwaste into /ro)incial waters and was char0ed under s.&$1'. The trial and a//eal courts re4ected the char0e. Should %arliament ha)e the /ower to /re)ent dum/in0 of A;E su@stance into /ro)incial waters without /roof of /ollutionK Seacoast and inland fisheries $s.!1'K
Constitutional Law
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Le *ain <. u/held the )alidity of the act under the national concern doctrine of %-. %ro/er authorities must ha)e the chance to determine, throu0h /ermit a//lication, whether somethin0 can @e dum/ed. Cites D; con)ention that distin0uishes /ollution from marine /ollution. $distinctive matter' La Borest <. $dissent'I This is not /ollution @ut sim/le local wors and undertain0s. Should all of the @usinesses inland @e su@4ect to federal re0ulation, since they may add some /ollution to watersK There is no e)idence that /ermit and ins/ections are necessary to /re)ent /ollution. $i.e. necessarily incidental' This case is the most recent one of si0nificance, @ut does not /ro)ide )alua@le criteria for determinin0 its a//lica@ility.
Le (ain ;' on $+00 and :ational Concern doctrine • • •
*istin0uish @etween ;atl concern and %- emer0ency. A//lies to 1oth new and old matters . ;ational concern tests 3atter of national concern must @e single , distinct , and indivisi1le , on scale with di)ision of o /owers. /rovincial ina1ilit test. o
run and Trem?lay #$!15& = Crown 5ellerbac! sucs> • •
Court went well @eyond their role of custodian of federalism. Sur/risin0 that the case turned @ecause it is )isually difficult to differentiate @etween federal and /ro)incial waters.
La orest ;' •
Leadin0 4ud0ment writer on federalism in the Lamer court.
Environmental )egulation &riends of t!e 0ldman )iver "ociet% v. Canada 6$. of Transport7 •
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uildin0 dam on Al@ertas -ldman i)er $local /ro4ect' did not su@mit to federal en)ironmental assessment. The en)ironment is not a head of /ower assi0ned to a le)el of 0o)ernment in the Constitution Act, 1867. La BorestI n)ironmental control, as a su@4ect matter, does not meet the distincti)eness criteria laid out in Crown 2ellerbach, therefore national concern doctrine is not a//lica@le. Con)ersely, the ar0ument of a /ro)incial undertain0 is not )alid, @ecause there is no interF4urisdictional immunity here. >o the e&tent that the dam impacts man federal interests8 it m!st compl with federal law .
). v. '%dro(+u8bec =ederal Criminal Law $ower> •
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La Borest <. $ma4ority'I Dalid e&ercise of federal criminal law power , and it was not e)en necessary to deal with national concern doctrine. Lamer C
Constitutional Law
#7
0ntario '%dro v. 0ntario 6Labor )elations Board7 =:uclear la?or> •
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La@or relations in -ntario 2ydro nuclear stations found to @e under federal 4urisdiction throu0h national concern o)er nuclear ener0y. The to/ic was deemed e9traF/ro)incial, international and has the distinct and se/arate characteristics to fit under federal residual /ower. efI Anti%(nflation, Crown 2ellerbach
-elegation Conflict where federal and /ro)incial efforts clash.
1ova "cotia (ele.ation Case • • • •
, /ensions @y fed struc down. %ro)inces /assed law dele0atin0 res/onsi@ility to /arliament. %arliament dele0ated to the /ro)inces the a@ility to finance throu0h indirect ta9es. Courts struc this down
(ele.atedMsu?ordinate le.islation • •
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2od0e $188"K' e9am/le of le0islati)e so)erei0nty. %arliament cant dele0ate to le0islature $1!51 ;S ;atl *el Case', @ut %arliament can dele0ate to /ro)incial dele0ates $:aufman %&&7' o o %ro)incial le0islatures can dele0ate to federal @oards. $administrati)e dele0ation' $i.e. A re0ulatory scheme administered @y a federal a0ency can do thin0s federal laws cannot.'
Limitations on dele.ation • • •
Ta9ation $S.5", 5& ( uri0'
Economic )egulation %ro/erty and Ci)il ri0hts )s. Trade and commerce, amon0 other heads that conflict. After confederation, more /owers 0i)en to /ro). for economic re0. $!#.1", !1.#, /o00' arriers /re)ent full economic union. $%"#7' %arsons case 1881 $/!=' di)ision of /owers inter/retation. • • •
+?3ecti/es •
Create a national economy
Constitutional Law
#8
Parsons =$ro-erty and ci/il ri.hts re.' most local commerce> •
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-ntario statute reGuires insurance /olicies to include certain /ro)isions and to em/hasiHe any chan0es to those /ro)isions. hen %arsons hardware store @urned down, their insurance claim was denied @ecause %arsons had not com/lied w. the conditions. %arsons ar0ued the conditions were not suita@ly em/hasiHed. %ro/erty and ci)il ri0hts wins. -nt. statute is 0ood, @ecause /ro/erty and ci)il ri0hts was intended in constitution and @ecause of te9tual considerations. S. !& /ro)ides for uniformity in /ro/. and ci)il ri0hts across /ro)inces /endin0 a0reement $not incl. o Nue@ec' o S. !1$#' e9tends to insurance, contracts and s/ecifies @anin0, wei0hts and measures, etc. im/lyin0 a narrow inter/retation.
conomic re. • • •
3aretin0 a0ricultural /roducts ;atural resources Trade and Commerce /ower
ome +ilI C co. re0ulated 0as and fuel from e)erywhere Shannon #1!8& I All mil in C 0oes throu0h @oard.
Carnation Compan% v ' +uebec Agricultural $ar#eting Board )168* S'C'' "!8 #$1<& Su/reme Court of Canada, on a//eal from the Nueens ench, NC The Nue@ec A0ricultural 3aretin0 oard $NA3' was created @y the Nue@ec A0ricultural 3aretin0 Act, 1!55F56 $Nue.', c."7. t authoriHed a %roducers oard to ne0otiate with Carnation on @ehalf of its farmers a trade /rice for their mil. hen they could not come to an a0reement, the NA3 used its authority to determine the /rice that Carnation would /ay. As Carnation e9/orts much of its /roduction outside the /ro)ince, they claimed that the NA3 was ultra vires in settin0 the /rice and interferin0 with the re0ulation of trade and commerce, under federal 4urisdiction /ursuant to s.!1$#' of the Constitution Act, 1867. Carnations a//eal was dismissed, deli)ered @y 3artland <., @ecause the /ith and su@stance of the orders was to re0ulate only a s/ecific relationshi/ @etween the /roducers and Carnation. >here is no evidence that the either tried8 or s!cceeded to control trade and commerce o!tside that sphere. An intr!sion to that effect is incidental . •
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2anito?a .. #171& I All e00s to @e mareted @y 3anito@a @oard. Aimed at re0ulation of interF/ro)incial trade $im/ort of e00s' and was struc down. Lasin comments on the lac of e)idence of anythin0. %hony case, intention to loseK
$aul WeilerE Carnation and 2anito?a .. are the same' #$!!8& • •
*oes it matter if control is at prod!ction vs. marketing K 2owe)er there seems to @e discrimination in 3anito@a @ut not Carnation. $thou0h the 4ud0es didnt @ase their ar0uments on discrimination. no e)idence of that.' *iscrimination is contrary to the economic union of Canada, @ut was not a defense here. hats the ruleK
urns oods #175& =CharacteriFation> •
All ho0s slau0htered in 3anito@a must @e @ou0ht from maretin0 @oard of 3an. oard cant discriminate.
Constitutional Law
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Struc down @y Su/reme Court. 3anito@a e00 distin0uished, @ut not o)erruled. Cate0orical reasonin0I !1, !#, conclusions, not functional reasonin0.
e A.ricultural 2tin. Act #178& =0ood faith interIdele.ation> • •
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Administrati)e interFdele0ation Canada created e00 @oard $C3A' /resided o)er @y /ro)incial re/s. ;o federal a//ointees. They set Guotas of /roduction @ased on demand. %ro)inces also created @oards that set Guotas. 00 Guota di)ided amon0 /ro)incial and national maretin0 for each /roducer. %ro)ince affects interF/ro)incial trade and fed affects local /roduction. *ealin0 with incon)enience of separation of powers re-!ired the creation of schemes of cooperation . As a 0ood faith effort, coo/eration will @e allowed. %i0ean <. u/holds this scheme. Lasin <. says the /ith is intraF/ro)incial.
2onahan, $atric •
Says there is no functional reasonin0 in e A0r 3t. Scheme could @e u/held on functional 0rounds.
&ederal Economic )egulation • •
9/ansion of ;ecessarily ncidental doctrine in trade and commerce eneral trade and commerce $!1.#'
Leadin. case is Citi9ens: *nsurance Co. v ' Parsons #1881& %ri)y Council At the end of the day, there is a case @y case analysis, de/endent on characteriHation of le0islature. Section !1$#' has @een inter/reted as meanin0 o nternational and interprovincial trade and commerce and o ?eneral reg!lation of all trade and commerce8 as opposed to a specific ind!str . • •
1'" Trade and Commerce •
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aterti0ht com/artments would ordinarily /rotect local transactions. o Eastern Terminal Elevator F struc down le0. 2aldane said !1.# is not enou0h on its own, needs %-. -thers disa0ree. o o +ominion Stores $1!8=' F Court struc down A0ricultural %roducts Standards Act. f one were to use federal standard names for local transactions, one must com/ly with federal standards. Some 0uy didnt com/ly, ar0ued /ro/erty and ci)il ri0hts and won. adly decided, it seems.
$rof' Swinton • •
Dna)oida@le that 4ud0es will @alance com/etin0 interests when decidin0 Territorial characteriHation not hel/ful
Constitutional Law
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Labatt •
e0ulation of alcohol le)el in @eer. Lite @eer has hi0her alcohol le)el than the federal reci/e. Bood and *ru0 Act struc down. o eer is local o This was not re0ulation of trade, lie in %arsons, @ut re0ulation of a s/ecific industry. o ;o criminal law. o ;o %-, no natl concern.
Canadian 1at4l Transport •
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*icson tries to mae sense of %ri)y Council. e0ulation of sin0le tradeMindustry is /ro/erty and ci)il ri0hts. Lies at the )ery heart of /ro)incial autonomy /ro)ided @y constitution. Vision of federalism. n 0eneral le0islation aimed at the national economy, the 4urisdiction would @e federal.
02 /' City :ational Leasin. =:ational conomic Dnion> •
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3 challen0es Combines (nvestigation Act , which /rohi@its 0i)in0 /referential rates to certain dealers @uyin0 cars $as is 3 /ractice.' Bree maret )alues )s. /ro)incial mono/olyF@uildin0. >he law met the 3 criteria laid o!t in the case law t /ro)ided for a 0eneral re0ulatory scheme. $LasinI Trademars %"7"' o t esta@lished a re0ulatory a0ency to o)ersee the scheme. o o t dealt with trade and commerce in general (as opposed to specific ind!stries.) t also met # new criteria t was >of a nature that the /ro)inces would @e constitutionally inca/a@le of enactin0? it $4ointly o or se)erally.' The failure of a sin0le /ro)ince to /artici/ate in the scheme would endan0er its effecti)eness. o A//ly the 3 test to im/u0ned law. f it /asses, the law falls under trade and commerceU otherwise, it falls under /ro/erty and ci)il ri0hts. This is not a determinati)e test. The /ro/er a//roach is still %arsons. oods flow freely @etween /ro)inces, so com/etition is not sim/ly a local matter, @ut rather a matter of ind!str . Bederal re0ulation is necessary to @alance out re0ional dis/arity. %ro)inces can still re0ulate, @ut only from a /ro)incial /ers/ecti)e. Bederal com/etition re0ulation 0i)es effect to national economic !nion . $%"7!' Bunctional efficiency, CanadaF@uildin0. ole of state, economy, federalism, /olicy and other o conce/ts are often more /ersuasi)e than doctrine. arlier 0enerations of 4ud0es would not ha)e used such ar0uments, stuc in waterti0ht o com/artments. )en if /ro)inces ha)e com/etition re0ulation, /aramountcy would fa)or federal law. o %rof.
1atural )esources hat are the roles of /ro)inces and /arliamentK ise in oil /rices in 7" caused /ro@lems. As oil re)enues increased, crisis occurred, eGualiHation /ro0rams res/onded.
Constitutional Law
"1
C*G0L v. Gov4t of "as#atc!ewan )178* •
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-il /roduced on /ri)ate and crown land in Sas. ;atural resources $s.1=!' are owned @y the /ro)ince. oyalty surchar0e for crown land was calculated the same as 3ineral ncome ta9, /re)entin0 Sas. from undercuttin0 the world /rice. %ro)incial 3ineral ncome Ta9 1==W ell 2ead %rice $3aret /rice' F asic ell 2ead /rice o $Bi9ed %reF-%C /rice'. 9tra char0e would @e /aid @y ta9 on /ri)ate land. %ro)ince can do thin0s as -; that it can not do as le0islator. $-wners can char0e royalties in contracts. 3artland <. $ma4ority'I The /ro)incial minister cannot set /rices for 0oods in the e9/ort maret $trade and commerce'. Qf the com/any sold at less than maret /rice, the minister was em/owered to set the well head /rice.Q Categorical arg!ment . *icson <. $dissent'I %resum/tion that the /ro)inces are actin0 constitutionally. The /ro)ince has and needs control o)er natural resources. Transactions were local. There is no e)idence of im/act on e9traF/ro)incial trade. Consumer /rice does not chan0e. The maret, not the minister, sets /rices and therefore ta9es, which are functions of the /rices. ei0hin0 and @alancin0I %ro)incial interests outwei0h the @urden on trade and commerce. oth ta9es were struc down. 3T was indirect and !nconstit!tional . oyal surchar0e contracts already included royalties and could not im/ose more. Sasatchewan was ordered to /ay @ac C-L from the ta9 date onward. To recou/ the loss, they /assed an income ta9 on oil re)enues earned after that date. ConseGuences o S.!#a had 0i)en 4urisdiction to /ro)inces of natural resource /rices outside the /ro)ince, su@4ect to /aramountcy. !&a /rotects /ro)incial laws.
Central Canada $otash /' Sas' )17* =@nternational -rice fiin. ?ad> •
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1!6! F Sas. set u/ AC scheme to re0ulate /otash /roduction, control /rices and /rotect the industry. 1!7# F AC re/laced @y B% scheme, u//in0 the /ercenta0e. CC% could not honor a contract under the new scheme. Beds 4oined CC% as /laintiff, accusin0 Sasatchewan of undercuttin0 ;ew 3e9ico com/etitors $dum/in0' and hel/ed strie down the /ro)incial scheme. The le0islation was desi0ned to /rotect and conser)e the /otash industry $!#.1"', and that the im/act on trade and commerce was incidental. Lasin C
Criminal Law here does federal /ower end and /ro)incial /ower @e0inK 2ere criminal law is used only in the narrow definition of those /owers 0ranted to one source or another.
ederal •
!1.#8 %enitentiaries
Constitutional Law
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$ro/incial • • •
!#.15 %unishments for /ro)incial laws !#.6 %risons !#.1& Administration of 4ustice in /ro)ince $courts, /olice, etc.'
Board of Commerce • •
1!## 2aldane struc down antiFhoardin0 com/etition law, refused to u/hold it under criminal law. Sco/e of criminal law e9/lored.
P.A.T.A • •
1!"1 Lord AtinI s the act /unished with penal sanction K f so, its criminal. Sco/e of crim. law too wide.
$argarine • •
Criminal law must @e to some p!rpose $/u@lic /eace, order, health, security, morality' Scope of criminal law %rohi@ited act o %enalty o Criminal law /ur/ose o
ecent e-ansions under 1'"7 • •
%- eneral Trade and Commerce
$ac-onald v. Canada =ealth is a criminal law -ur-ose> • • •
2ealth warnin0s must @e dis/layed, @an of ad)ertisin0 of domestic ci0arettes. %ream@le hints at %- F s!1stantial and pressing concern . S.1 F to infrin0e on freedoms concern must @e /ressin0.
Ar.uments a.ainst /alidity of 2ac(onald •
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This law is a@out advertising , not to@acco, which is provincial in /ower. >o1acco is not criminal . f they were so concerned with health, they would ha)e gone m!ch f!rther and prohi1ited to1acco . f you cant ad)ertise ci0arettes, wh not prohi1it ads a1o!t fast food8 or 1eer K f criminal /rohi@ition is so im/ortant, wh the e&ception for foreign /eriodicalsK 2ow can this @e taen seriouslyK 65W of the ma0s will still ha)e ads in them.
Ar.uments for /alidity of 2ac(onald #2a3ority& • • •
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Criminal law is not fro7en in time, and can include health. ts not practical to prohi1it cigarettes , and it has @een shown effecti)e to limit in the area of ad)ertisin0. La BorestI isco!ragement is a valid move when prohi1ition not practical . CharacteriHationI Act is aimed at detrimental health effects caused @y to@acco. $therefore criminal' Criminal law routinely has e9em/tions. Borei0n /eriodicals are a small se0ment $1W'
Ad)ocacyI Bind le0al and nonFle0al sources and /aca0e an ar0ument com/rehensi)ely. o)t role, /ro) role, court role, morality, /rinci/les, code, etc.
Constitutional Law
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). v. '%dro(+u8bec #$%<<& •
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Canadian n)ironmental %rotection Act /ro)ides re0ulations for to9ic su@stances. $definitions, lists, conseGuences' Can re0ulation of %Cs @e u/held under criminal le0islation, 0i)en its formK The act is in relation to en)ironment, not under any /ower. Bederal and /ro)incial le)els @oth ha)e a role to /lay in the en)ironment. $Crown 2ellerbach' oth sides a0ree that /rotectin0 the en)ironment is a criminal /ur/ose. The court is di)ided on form. $s it /rohi@ition or re0ulationK' 3a4ority $La Borest <.' uses criminal law lan0ua0e. Criminal law is @road, created to /rotect and /romote $%&=&' our fundamental )alues. t is limited o when colora@le. There is less im/act on /ro)incial /owers under criminal law than if we were to a//ly it under o %-. $;o dou@le as/ect under %- and national concern doctrine would @e strictly federal, @ut u/held under criminal law, /ro)inces can still re0ulate in all inds of ways, su@4ect to /aramountcy. n Crown 2ellerbach, La Borest dissented, worried a@out im/act on /ro)incial /owers. 2ere, as o ma4ority $%&=7' he e9/ressed a concern for the effecti)eness of /arliament. 9/licit @alancin0 of /owers. %&1# F
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&irearms Act •
u/held in criminal interest of /u@lic safety, other as/ects incidental.
!1.#7 is 0rowin0 in sco/e, must cut @ac e)entually.
Ar.uin. a criminal law le.islation • • • •
Bundamentals of social val!e of the law to the nation as a whole. Anchored in a traditional criminal law concern . Framework of prohi1itions and penalties in the le0islation. Address e&plicitl the effect on /ro)incial @ounds of /ower.
$ro/incial reach to criminal law •
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!#.15 %unishment for @reach of /ro)incial law. %ro)inces ha)e ri0ht to le0islate those matters within their /owers. !#.1& %rosecutorial discretion.
Constitutional Law
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Bederal criminal law is sometimes de/endent on the o/tin0 in or out of /ro)inces. $)ideo /oer' *ou@le as/ect sometimes ends in @oth /ro)incial and federal laws standin0 to0ether.
1ova "cotia Board of Censors v. $c1eil #$%16& •
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;o)a Scotia law reGuired all films to @e su@mitted to a @oard of censors which had the /ower to reGuire chan0es to @e made or /re)ent the film from @ein0 shown. as the law criminal in nature and therefore ultra vires the /ro)inceK The court held that the /enalties included in the act are not p!nitive, @ut rather are aimed at ensurin0 com/liance with the re0ulatory scheme. The laws /ith and su@stance is the re0ulation of local trade, not criminal.
-upont •
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ylaw @annin0 0atherin0s $/arades, assem@lies, /olitical rallies, /rotests' was u/held under /ro)incial /ower to re0ulate domain. 2eld to @e preventative , nondiscriminator and not criminal .
estendorp v. T!e +ueen #$%"1& •
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Criminal laws had made it difficult to control /rostitution so Cal0ary /assed a @ylaw /rohi@itin0 /rostitution on streets. The law was struc down as @ein0 criminal in nature, desi0ned to control /rostitution and not to /re)ent nuisance. -//osite reaction than *u/ont @ecause the le0islation was too s/ecific. 2ad it @een @roader, it mi0ht ha)e /assed.
$ower to enforce comes from -ower to le.islate •
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t was thou0ht that the /ro)inces had e9clusi)e 4urisdiction to enforce criminal law throu0h s. !#$1&'. t is now clear that that is not the case. *icson <.I %ower to enforce criminal law is concurrent with /ower to le0islate it. Beds could ste/ in @y le0islatin0 differently and in)oin0 /aramountcy.
ederalism and S-endin. $ower •
S/endin0 /ower $%' allows federal influence o)er matters such as health care, e)en thou0h listed as /ro)incial. %arliament re0ulates indirectly areas they cant constitutionally re0ulate directly. Constitutional status of s/endin0 /ower is unclear. ;othin0 in te9t. $S. !1$"', 1=6K'
2easures taen under s-endin. -ower Can attach conditions to money and therefore influence decisions outside 4urisdiction. %ro)idin0 @enefits directly to citiHens. Bederal shared cost /ro0rams $health, education' GualiHation 0rants to /ro)inces. • • •
Conditions for health fundin. • • • •
Accessi@ility Com/rehensi)eness Dni)ersality $all residents' %orta@ility $tem/orarily a@sent'
Constitutional Law
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;onF/rofit /u@lic administration
Ar.uments a.ainst conditions •
Dndermines federal system @y remo)in0 accounta@ility of local 0o)t for its decisions.
$ro conditions • •
;ational standards edistri@ution of wealth
;<=> 2nemplo%ment insurance reference • •
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2eld that %arliament cannot use s/endin0 to in)ade ci)il ri0hts in /ro)ince. Theres no other case law in this area, thou0h s/endin0 /ro0rams that in)ade /ro)incial /owers ha)e increased. *isincenti)e for /ro)inces to com/lain. Nue@ec can often o/t out and @e com/ensated. $The failed 3eech Lae, Charlottetown accords made references to the s/endin0 /ower. %ro)ided that if a /ro)ince were to o/t out and /ro)ide eGui)alent /ro0rams, /arliament would /ay reasona@le com/ensation.'
+uebec "overeignt% Nue@ec is @ound in law to the constitution, e)en if they dont a0ree with it. 3eech Lae would ha)e to 0o throu0h amendin0 /rocedure, 0et unanimous consent, and it failed to do so. Charlottetown !# was also defeated. 1!!& %N, 1!!5 eferendum %N assumed that Nue@ec could se/arate unilaterally if the /eo/le )oted that way. Nue@ec Su/erior Court said that Nue@ec could not se/arate unilaterally. 5=.6W, &!.&W eferendum • • • • • •
+uebec "ecession )eference • • • • • • •
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Court ased if Nue@ec has a le0al ri0ht to secede unilaterally. Secession would reGuire many amendments to the constitution. There is no le0al ri0ht to secede. nternational law does not offer that ri0ht. n case of conflict @etween international and Canadian law, in Canada the domestic law would /re)ail. Constitutionalism and democracy wor to0ether, su//ort each other. The court could ha)e refused to answer some of these Guestions, @ut did not. Nue@ec 0o)t called it an ille0itimate /rocess. ould not sent their lawyer to ar0ue it. ould feds not tal to NueK here there is a clear ma6orit to a clear -!estion , federalism and democracy would @e o1liged to negotiate constit!tional change , not su@4ect to 4udicial decision or sanction.
Brom history, other systems, doctrine, cases, we find 0o)ernin0 /rinci/les that hel/ to inter/ret rules. A rule is discrete, a /rinci/le is more 0eneral and is to @e wei0hed a0ainst other /rinci/les. %rinci/les function in sym@iosis, not trum/in0 each other, @ut hel/in0 to define each other. •
our Constitutional $rinci-les • •
/rotection of Einorities $Canada does not ha)e a 0reat record of this, @ut it should still @e a 0oal.' %&pressive f!nction F what )alues S2-DL* we @e 0o)erned @yK
Constitutional Law
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C!eing f!nction F sendin0 a messa0e to /olitical actors and lawyers a@out secession. hat ha//ens to minorities if Nue@ec secedesK These /rinci/les must @e taen into account. emocrac $Votin0, di0nity, -as, identity. %rocess of discussion, e9/ression, o/inion. 3aret/lace of ideas. 3oral Values.' Federalism $lliottI /ro)incial di)ersity X inte0rity of state.' $!le of aw $%#" hy is a constitution entrenchedK Safe0uard fundamental ri0hts, ensure minority resources, federalism'
;ohn 2a3or #0lo?e and 2ail& • •
The 4ud0ment was written to @e accessi@le to ordinary Canadians and withstand the test of time. Nue@ec reacted /ositi)ely to the 4ud0ment, @ecause it )alidated their classical /osition.
The court re3ected two etreme -ositions • •
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To %ariHeauI ;o, NuY@ec does not ha)e a constitutional ri0ht to secede. To ChretienI ;o, %arliament cannot i0nore the democratic e9/ression of a clear ma4ority in a referendum, indicatin0 a wish to secede. Co!rt finds d!t to negotiate , @ut does not find its role to 0o much further. The rest are /olitical Guestions, not le0al ones. s the role of the court to @e an ar@itratorK
Goun. •
Lies 4ud0ment for maintainin0 courts le0itimacy, /reser)in0 /olitical s/ace for discussion.
eactions • •
AntiFso)erei0nists consider this a )ictory for Nue@ec. So)erei0nists consider it a strai0ht4acet for Nue@ec, 0i)in0 /arliament @lunt instruments to @eat down se/aration.
What should ?e the ma3ority /ote in order to ne.otiateK •
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Clarity Act $%&6&' %arliament will mae u/ its mind after the fact whether there was a clear ma4ority, tain0 into account any and all circumstances of the )ote. Bundamental i0hts Act F 5=X1.
hat if one /arty o/erated in @ad faithK ould the court then inter)eneK
Who else should ?e at the ta?leK • • • •
%arties of confederationK Nue@ec and CanadaK The federal 0o)ernmentK %ro)inces, Territories, 1st ;ationsK
+ther constitutional -rinci-les •
ndependence of 6!diciar o Binancial security Security of tenure o nstitutional inde/endence o
Constitutional Law
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$ole of S!perior Co!rts s.!6 of CA. o Core 4urisdiction that com/rises /owers and rule of law. o /owers To determine whether a lower court acted within 4urisdiction. o To /ronounce on constitutionality of /ro)incial le0islation. o To /unish contem/t. o
Application of C!arter %rotection of ri0hts in Canada @efore the Charter.
+ffered measures of -rotection • • •
notions of democracy inde/endence of 4udiciary /rinci/les $mens rea, /resum/tion of innocence, reasona@le dou@t, statutory inter/retation, rule of law'
2owe)er, s!16ect to change 1 stat!te or legislation8 and is !nsta1le as protection .
:A 1867 • • •
s.!" ri0hts of schools s.1"" n0lish and Brench /rotection ;o /rotection from discrimination a0ainst minorities. $-ntario Catholics, Brench 3anito@ans'
dea of /arliament su/remacy too /recedence o)er ri0hts.
i.hts and li?erties were not 2ATTS for which there were 3urisdictional claims • • • • • •
Al@erta Statutes F Al@erta Social Credit $reGuired news/a/ers to /u@lish in su//ort of social credit.' 1!57 Swit6man v. Eldling $Nue@ec /adloc law authoriHed closin0 of @olshe)i house, struc down.' 1!78 $3ontreal @ylaw to ban all demonstrations upheld @y eetH /16"K' Structure of democracy Secession reference m/lied @ill of ri0hts theoryK Certain thin0s that no 0o)ernment can do. S."" in)ocation may reGuire this ar0ument.
2inority i.hts •
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BC Coal !ining 'egulation Act $/re)ented em/loyment of children, women, Chinese in mines.' %ro)ince said it was a )alid law. Beds ar0ued 4urisdiction o)er nat!rali7ation . Beds won in /ith and su@stance. C /assed law /re)entin0
All -ro/inces ha/e enacted human ri.hts codes as of +ntario 15", after WW"' • •
%rohi@itin0 discrimination in hirin0 em/loyment, accommodations, etc. on race, reli0ion, etc. %ro)ide structure for in)esti0ation and ad4udication @y human ri0hts tri@unals.
Constitutional Law
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A//lies to /ri)ate sector, as well as 0o)t acti)ities.
Canadian ill of i.hts • •
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1st @ill of ri0hts /assed @y Sasatchewan 1!6= Canadian ill of i0hts o /assed @y conser)ati)e *iefen@aer 0o)t. only a//lies to federal law o is not entrenched, could @e re/ealed @y ma4ority of /arliament o disa//ointin0 in results and doctrine. o BroHen ri0hts theory $/rotects ri0hts that e9isted as of 1!6=' o liss case $Su/reme Court said eGuality is satisfied when o@4ecti)e is )alid. ;arrow inter/retation, o could not @e used to strie down le0islation.' nter/retation influenced Trudeau and others to entrench a Charter. 1!75 Nue@ec Charter of ri0hts and freedoms.
Canadian Charter of i.hts and reedoms @nfluenced ?y • • •
Gual ri0hts unifyin0 Canada alance /ro)incial identity mo)ements. rosion of identification with thin0s ritish.
Concern a?out le.itimacy of 3udicial re/iew' #WeimerK& • •
s.1 o)ts to @e accounta@le, and to @e ad)ised of the rules. s."" Allows 0o)t to /ass laws notwithstandin0 Charter. le0islature final word.
Concession to o//onents of Charter. i)e
Nue@ec felt a@andoned when other /ro)inces si0ned on. %rocess was flawed.
3eterans Affairs Act =$ension Administration> •
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# Soldiers entitled to /ensions, some of them not com/etent to administrate /ensions themsel)es, administration desi0nated for them. Bunds were ne)er in)ested or credited with interest until 1!!=. %assed a /ro)ision that no claim should @e made for interest /rior to 1!!=. Trial 4ud0e found that the 1eterans Affairs Act )iolated /ro/erty ri0hts, /rotected @y the @ill of ri0hts. CA a0reed. SCCK
1' @s ri.htMfreedom infrin.edK •
SCC def. of ri0htMfreedom %ur/osi)e inter/retation $/ur/ose or )alues sou0ht to @e /rotected @y ri0ht.' o $unter +1!8& $arly charter case. *efine unreasona@le, reasona@le e9/ectation of /ri)acy determined. Law struc down' Big ! +rug !art $*icsonI unremittin0 /rotection, @road role of charter, 0enerous /ur/osi)e inter/retation, @ut shouldnt o)ershot the /ur/ose. Canadian ill of ri0hts not rele)ant. ntl law a little rele)ant. Canadian 4uris/rudence )ery rele)ant. Te9t, history, /ur/ose.' enerousI Any utterance is co)ered @y freedom of e9/ression. o o %ur/oseI %rotect statements dealin0 with /u@lic lifeK %u@lic fi0uresK A//lied @y courts lar0ely as 0enerous.
Constitutional Law
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The @roader inter/retation of a ri0ht, the more liely it is that the law will infrin0e u/on it. S. 1 worin0 o)ertime. analysis of lawMaction urden of esta@lishin0 )iolation lies on the /erson alle0in0 the alle0ation. -nce the court concludes o infrin0ement, the @urden shifts to the defense to 4ustify the infrin0ement throu0h s.1.. o
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"' @s infrin.ement 3ustifiedK •
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s limitation /rescri@ed @y lawK There must @e le0al authority @ehind s.1 infrin0ement. 9I &ittle Sisters $%!8=' Customs official seiHed homose9ual literature e)en thou0h the law did not o distin0uish @etween hetero and homose9ual literature. Law must @e accessi@le, intelli0i@le, su@4ect to accounta@ility. ncludes statutes, re0ulations, common law rules, 9I StatuteI 3ust do @reathalyHer QforthwithQ, im/lies no ri0ht to counsel. o
1ova "cotia Case #$75"& • •
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onthier $conser)ati)e'I As lon0 as there is some standardM0uide for discretion, )a0ueness is not an issue. Char0ed with /re)entin0 com/etition QundulyQ. 2ere, QundulyQ not deemed )a0ue. State must /ursue $%756' le0itimate social o@4ecti)es. $%755' role of 4udiciary is always /resent, @ut may )ary.
+aes Test #Leadin. case on s'1& •
Sufficiently im/ortant o@4ecti)e 2i0her 0enerality, the more im/ortant it seems, @ut the more /ro@lematic it is at the other sta0es. o %75! Courts rarely strie down on this 0round, @ut did so in i0 3 *ru0 3art $leadin0 case' o o f the /ur/ose directly contradicts a charter ri0ht, it is inadmissi@le. $Lords *ay Act' o f the /ur/ose would mae the law ultra )ires on federalism 0rounds, it is inadmissi@le. o Cannot ha)e a shiftin0 /ur/ose o)er time. Butler -@scenity $se9 is @ad, /rohi@it se9ual materials' So/ina u/held o@scenity /ro)isions, generali7ing p!rpose as /rotectin0 society from harm caused @y o@scene materials, @ecause the def. of o@scene chan0es o)er time. $%!75' 2armF@ased test was criticiHed in &ittle Sisters for @ein0 heteroFcentered, thou0h it was used @y innie <. ational connection o @etween law and means. rarely the test relied u/on, @ecause laws arent usually com/letely ar@itrary. Scientific e)idence not o reGuired. Common sense acce/ted. 9I ;o rational connection @etween /ossession of small amounts of /ot and intent to traffic. o *e/ends on how o@4ecti)e is framed. east drastic means (E2EA E/A$E%2>) o m/air ri0hts as little as /ossi@le. o %i)otal element %ro/ortionality $in effect' o @alance @etween interference with ri0hts and @enefits o@tained. %761 include salutory effects. o arely used to strie down law. o
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Constitutional Law
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-aes test is @rilliant, character of a holy writ. hats the /oint of a freedom is it can @e limited easily @y a reasona@le /ur/oseK
onald (worinI Some reasons arent 0ood enou0h. (icson #$757&E actors to consider • • • • • •
*i0nity Guality eliefs Culture nstitutions i0hts and Breedoms
Edmonton ?ournal Case • •
CoryI A@stractI 9I Breedom of e9/ression in 0eneral terms, democracy, truth ilsonI Conte9tualI Bocuses on /articular issues of case.
s an a//eal to conte9t one that 0i)es lower wei0ht to ri0hts and demands less of 0o)ernmentK alance com/etin0 0rou/s Vulnera@le 0rou/ emedy whose effecti)eness cannot @e measured scientifically Su//ress an acti)ity whose social or moral )alue is low. • • • •
ach /art of -aes test contains the whole test, in a way.
C!arter *ssues $+ ntrenchment of Charter • • • • • •
%rotects ri0hts m/acts socialM/olitical attitudes %rotects interests of underFre/resented 0rou/s m/owers indi)idualsM0rou/s *emocracy, more than 4ust ma4ority rule Dnifyin0, eGual.
C+: ntrenchment of Charter • • • • •
CostsMtime of liti0ation im/act llusory effectK Court )iew of ri0hts AntiFdemocratic StateFcentered solutions
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Constitutional Law
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0old •
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n fa)our of the charter, @ut not o)erwhelmin0ly so. 2e lies ri0hts, reasona@le role of state, a0rees with 2o00, @ut reco0niHes the con ar0uments. Le0islature intruduced worers ri0hts, human ri0hts, social welfare, while the courts were o@structionist. Can we /it e)il le0islatures a0ainst enli0htened 4ud0esK Bocus on ri0hts and entitlements may ha)e conseGuences, such as indi)idualism and less community focus.
*o 4ud0es ha)e a @etter chance of 0ettin0 at the ri0ht answer than 0o)tK s there a difference @etween le0al and /olitical reasonin0K Law is indeterminate, decisions are ideolo0ical.
Weinri? • • •
Su/remacy of ri0hts, deontolo0ical theory. Coherent theory of ri0hts to 0uide 4ud0es.
2onahan •
%rocess oriented theory. Tainted, flawed /rocess that shuts out a social 0rou/.
-ther others reco0niHe a 0reater de0ree of indeterminance. Com/etin0 theories lliott F o@itt F Le0itimate modes of ar0ument, within historical functions. Are 4ud0es within their limitsK
o.. •
2ow courts decide charter cases influences the /ros and cons of the charter. Courts are res/ondin0 to concerns a@out deference to le0islature, conte9t. Critics of the charter came from the left $charter fa)ors @usinesses' and now from the ri0ht $charter fa)ors 0ays'. old thins the real di)ide is @etween li@erals $ri0hts o)er 0eneral will' and the leftMri0ht conser)ati)es $ma4ority im/oses 0ood society )ision'. ZZeli0ionI -3T CCL868F887ZZ ZZSection 7I -3T CCL11=!F11#8ZZ
".== 0verride ;otwithstandin0 clause routinely added to le0islation.
&ord v. +u8bec 6AG7 •
%arliament had to decide whether NuY@ecs )ast use of the clause was )alid.
Constitutional Law
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2eld that the enumeration of the o)erridden /ro)isions was sufficient form, @ut that retroacti)ity was not a )alid inter/retation of the word >shall?.
S.#, 7F15 can @e o)erridden. y ee/in0 lan0ua0e ri0hts $16F##' and minority education safe from o)erride, you did not ha)e to trust /ro)inces with @ad historical records of /rotectin0 ri0hts.
Weinri?, Lorraine • •
Su//orts s. ""
2orton •
S."" is useless and ineffecti)e @ecause no le0islature would ha)e the 0uts to reintroduce somethin0 that has @een found to infrin0e on ri0hts.
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Are there ri0ht answersK
&ramewor# of C!arter Local @ v. -olp!in -eliver% #186& #early case& =-ression> •
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Courts stru..lin. to understand the -ur-ose of the charter' • •
To constrain 0o)tK To force 0o)t to actK
Constitutional Law
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Pepsi Cola • •
Lawful strie a0ainst %e/si. Secondary /icetin0 at houses of mana0ers an retailers of %e/si. Assume picketing is lawf!l !nless it amo!nts to a tort . 2ere, /icetin0 the de/s. was lawful, @ut /icetin0 the residences was not.
0o/4t /s' $ri/ate Acti/ity •
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o)t acti)ity attracts the charter, re0ardless of the actor o %ri)ate actors $ldrid0e, Slai0ht' %ri)ate Acti)ity attracts the charter only for 0o)t actors $*ou0las, :wantlen' o ut not for /ri)ate actors $3c:inney, *ol/hin' o
Guelp! #$787& =:ot su?3ect to CharterE @nde-endent, no coercion> • •
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3andatory retirement at 65. A0e discrimination /rotected from 18F65. LaBorestI Charter not a//lica@le directly, @ecause the uni)ersity is /ri)ate. 2uman ri0hts act does infrin0e eGuality ri0hts, sa)ed under s.1. niversit not s!16ect to the Charter 1eca!se o)ernance of the uni)ersity was independent of the 0o)t. o 3andatory retirement /olicy was created @y the uni)ersity, not at instigation of the govt . o Dni)ersity lacks coercive power to mae laws @indin0 on the /u@lic. o )en thou0h the uni)ersity did %erform an im/ortant /u@lic ser)ice. o ecei)e /u@lic P. o 2a)e /owers and the attri@utes of a /erson. o
Community Colle.e =Su?3ect to CharterE 0o/4t a--ro/al reH> • •
%verthing had to 1e approved 1 the govt8 and so is s!16ect to charter . 2owe)er, the /u@lic chooses to @e under this control...
os-ital =:ot su?3ect to CharterE (ay to day o-s' run -ri/ately> •
All re0ulations of hos/ital had to @e a//ro)ed, 1!t the da to da of the hospital was private and the retirement polic was not dictated 1 govt .
"laig!t =$ri/ate actor su?3ect to CharterE $ower of com-ulsion> •
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/rivate indi)idual em/loyed as an ar1itrator !nder Canada a1or Code ordered that an em/loyer who wron0fully dismissed an em/loyee had to write that em/loyee a reference. Clear violation of freedom of e&pression . Charter does appl to private individ!al8 who had the power of comp!lsion granted 1 stat!te .
Eldridge =Charter a--lies to 2edicare ser/icesK> •
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!edical and $ealth Care Services Act of C dele0ated to assess the cost of ser)ices decided not to allow coverage for sign lang!age interpreters . The court held that the Charter applied $this had to do with 3edicare, 3edical Ser)ices Act as /art of a 0o)t /ro0ram'8 e-!alit infringed and not 6!stified under s.1. Conflicts w. other hos/ital casesK
Constitutional Law
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Stoffman $mandatory retirement of doctors was allowed' distin0uished, the charter a//lies for 0o)ernment actors as well as /ri)ate actors in 0o)ernment /ro0ramsM/olicies. 2o00 thin0s this one is wron0. The real test isI *oes the entity ha)e a stat!tor power of coercion K $%ower to ta9, to com/el a witness, etc...'
@n the case of nonI.o/ernmental actors •
ilson $dissentin0 in 3c:inney'I road )iew of charter, " /art test. o Control test $le)el of control that 0o)t has.' o ?ovt f!nction test $does the entity /erform a traditional 0o)t function, or tae on 0o)t res/onsi@ilityK' o Stat!tor A!thorit/!1lic nterest test $*oes the entity further an o@4ecti)e that the 0o)t sees to /romote in the @roader /u@lic interestK'
!en does t!e gov4t4s failure to act attract t!e c!arter 3riend E Al?erta uman i.hts law •
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Charter /rohi@ited discrimination, @ut did not include se9ual orientation, thou0h the courts read in S- @y analo0iHin0 it to other characteristics. Cory held that the charter a//lied and the omission of S- from the charter was itself a charter issue. 3ust a)oid a situation where the le0islation can for0et a class of /eo/le. To what de0ree does the charter im/ose a /ositi)e duty on 0o)ernment or other /arties to act, as o//osed to a ne0ati)e duty to refrain from actin0K Lan0ua0e ri0hts are /ositi)e $s.#"'.
n most cases, court ha)e inter/reted charter ri0hts in ne0ati)e o@li0ations, @ut there are e9ce/tions.
$ositi/e +?li.ations • • • •
Vriend $Se9ual orientation' *unsmore $o)t o@li0ation to /rotect ri0ht of @ar0ainin0' osselin $Ar@our found /ositi)e ri0ht to welfare' Bord $-)erride carries an o@li0ation only of form'
Who is -rotected ?y the charter, aside from human ?ein.sK *e/ends on the inter/retation of the ri0htMfreedom, and how the @eneficiary is defined. S.# is 0ranted to e)eryone. %rima facie, this includes cor/orations. S.15 GualityI %ver individ!al. %&cl!des corporations . s the /articular ri0ht ca/a@le of @ein0 en4oyed @y a cor/orationK Ees to freedom of e9/ression $to@acco ads', @ut no to reli0ion. S.7 VE-; has the ri0ht...to security of the %S-;... $not ca/a@le of @ein0 en4oyed @y cor/orations.' • • •
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Sources of remedies and standin. • • •
S.5# Su/remacy clause. Any law inconsistent w. constitution $charter' is of no force or effect. S.#& A//lication to court of com/etent 4urisdiction for remedies deemed 4ust and a//ro/riate. n defense to a criminal char0e, you can raise that the law is unconstitutional, e)en if you cannot in)oe a /ersonal ri0ht to that law $i0 3' DT you cannot @rin0 an action in antici/ation of that law.
Constitutional Law
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*ifferent than in federalism $di)ision of /owers' cases. There, a /ri)ate indi)idual or cor/oration will ha)e standin0 to 0o to court if its interests are directly affected @y that law, on di)ision of /owers 0rounds. %u@lic interest standin0. $%&7' o Affected @y it directly. o ;o other reasona@le and effecti)e manner in which the issue may @e @rou0ht @efore the court. o 2o00 thins these rules should also a//ly to the Charter.
&reedom of )eligion %ream@le of charterI Su/remacy of 0od and rule of law.
undamental freedoms •
eli0ion $amon0 the first freedoms'
(i/ision of -owers •
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Bormerly federal criminal /ower Lords *ay Act o m/lied @ill of ri0hts o eli0ion is not a matter says *icson, and does not fall e9clusi)ely in either /ro)incial or federal.
Big $ -rug $art •
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arly charter case a@out sellin0 0oods on Sunday. The Lords *ay Act /rohi@ited worin0 commercial acti)ities, 0ames where fees are char0ed, /leasure trans/ortation where fees char0ed, e9ce/t where /ro)incial $/ro/erty and ci)il ri0hts' or munici/al law allows. The court noted 0roceries and cu/s were @ou0ht at i0 3, showin0 that striin0 down the law would not @e the end of the world. S!preme Co!rt str!ck down the ords a Act as in)alid criminal law. %rotect morality @y ensurin0 that the Sa@@ath was o@ser)ed. )en if the /ur/ose of the Act was reli0ious, the effects are what matter. *oes the Act infrin0e S.#a of the CharterK *icson oth /ur/ose and effect are rele)ant. f the /ur/ose is unconstitutional, effects need not @e looed o at. $%8#&' here the o@4ect is im/ro/er, the court has discretion to discoura0e liti0ation. nsures ri0hts @y o@)iatin0 the /laintiffs need to /ro)e effects. ;ature of a truly free society %8#5I o A1sence of coercion $direct or indirect' or constraints. o Concern for minorities8 1eliefs8 diversit. o %-!alit wrt. freedoms, inherent. Com/le9, contro)ersial, intrusi)e. o $espect for dignit , ri0hts of others. o A1ilit to hold and profess 1eliefs . Attem/ts to com/el @elief of any ind in ina//ro/riate. %8#7 *emocratic /olitical tradition. Constitutionally incom/etent for the Canadian 0o)t to 0i)e /reference to one reli0ion o)er another. Communicates that this is not a re4ection of reli0ion or the Sunday, *icson @ein0 a reli0ious man.
$rof' 2oon I Breedom of reli0ion also means freedom from reli0ion. 2unter ... SouthamI %ur/osi)e a//roach to inter/retation.
Constitutional Law
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). v. Edwards Boo#s and Art 6;<D7 etail usiness oliday Act> • •
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Close @usiness on holidays $9mas, 0ood friday, new years, la@or day' Close Sunday e9ce/tI Corner stores, /harmacies, munici/al law e9em/tions for tourists o if closed on /re)ious Saturday o 7 or fewer em/loyees on Sunday o 5===sG. ft. ma9 to ser)e /u@lic o 3a4orityI The BBCT is coercion, economic /ressure to mae you a@andon reli0ious @eliefs. Sa)ed @y s. 1 ( $see A//lyin0 S. 1I *ay of rest.' eetH $dissent'I f there was no le0islation, o@ser)ers mi0ht not o/en store on Saturday and suffer costs @ecause of reli0ion, not the state. The coercion follows from reli0ious @eliefs. S.15 $discrimination' not in force. oldI m@edded in a notion of freedom of reli0ion is eGuality.
A--lyin. S'1E (ay of rest • • •
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Sufficiently im/ortant etail )s. other industries Claimin0 reli0ious e9em/tion reGuires that A reli0ious /rinci/le is at stae o There is a sincere @elief in that /rinci/le o The law conflicts with that /rinci/le, in that it is im/ossi@le to com/ly with @oth and adherin0 to the o /rinci/le is o@li0atory The o@4ection is reasona@le. o *icsonI Violates freedom of reli0ion, @ut sa)ed @y s. 1. o Accom/lishes legitimate p!rpose with minimal infringement on rights . Assumes that o e9em/tions mae sense that way, with no e)idence. alance of /ro@a@ilitiesK $-aes' *rawin0 the line, e9em/tions allows us to a)oid looin0 too dee/ly into the reli0ious /references o and reasons of others. ts a distasteful inGuiry. o e cautious a@out rollin0 @ac le0islation that has the o@4ect of im/ro)in0... ary of usin0 the charter as a re0ressi)e instrument. $%8"8' La Borest would ha)e u/held the law e)en without e9ce/tions. ilson would ha)e struc it down. *raws distinction @etween @i0 and small @usinesses, with no e)idence that lar0e @usinesses would o si0nificantly affect industry if they were allowed to stay o/en. Nue@ec allows o/enin0 on Sunday with less restrictions. " Eears later, -ntario amended the law, /ermittin0 any store to o/en on Sunday if they were closed on any other day for a reli0ious reason. $ilson'
The @roader freedom of reli0ion is defined the more wor S.1 has to do. -ther ri0hts ha)e 0rown, eGuality has shrun and fewer cases 0et throu0h the eGuality tests.
+-enin. munici-al council meetin. with -rayerK • •
S.#a /rotects Canadians from reli0ious coercion. $Thou0h you dont need to /artici/ate in the /rayer.' S.#7 3ulticultural
Constitutional Law
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"udbur% •
Lea)in0 durin0 a school ser)ice forces one to mae a reli0ious statement and sti0matiHes youn0 /eo/le.
2istory and traditions conflict with freedom of reli0ion.
&reedom of EpressionF Commercial "peec! 6Advertising7 S.#$@'I thou0ht, @elief, o/inion, e9/ression, includin0 the /ress and other mediums.
*rwin To% •
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Law /rohi@itin0 ad)ertisin0 directed at /ersons under the a0e of 1" valid under consumer /rotection le0islation. Ar0uin0 s.7 not )alid @ecause a corporation cannot en6o the right of life8 li1ert and sec!rit of the person. /!rpose is important . Studies were wea for the rele)ant a0e ran0e, so reasona@le 4ud0ment was reGuired. $%!1#' $*issentI 3cntyre eetH not im/ressed @y case.' Einimal impairment . There is a reasona1le 1asis for @elie)in0 that the @an on ads im/airs as little as /ossi@le. $weaker standard than Oakes ' Less intrusi)e alternatives to @an $codes of conduct, etc.' not mandator . 3cLachlin $dissent'I e should treat all s/eech the same, whether ads or /olitical d e@ate. $%!1"'
Tobacco Act •
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Bederal le0islation @annin0 certain forms of ads $reGuirin0 health warnin0s, re0ulatin0 information on /aca0es' was !pheld under the criminal law /ower,. o)t conceded that the legislation infringed freedom of e&pression . The to@acco com/any conceded that protecting Canadians is pressing and s!1stantial . $*ont ar0ue lost causes and frustrate the @ench. Bi0ht the fi0hts you can win and lead with the @est ar0uments.' 5F& decision turned on whether rights were infringed as little as possi1le . o)t commissioned a study of alternati)es to a @an and did not su@mit the study.
Why is ad/ertisin. included in freedom of e-ressionK •
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truth findin0, dialo0, reinforcin0 /ersonal )iews. Ad)ertisin0 hel/s us @uild true )iews in a )ery commercial society, or at least en0a0es us in critical dialo0. autonomy democratic /artici/ation di)ersity
DS /rotects s/eech more for only democratic reasons and not the others.
@ncluded in reedom of -ression • • •
A statement or an act intended to communicate or e9/ress meanin0. $*ol/hin *eli)ery' Balse statements $Rundel' Threats of )iolence, su@4ect to S.1. $:ee0stra, contra *ol/hin *eli)ery'
Test for constitutionality 1' *oes a law )iolate constitutional ri0htsK #' *oes the law im/ose reasona@le limitsK
Constitutional Law
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Are all forms of s/eech $ads )s. /olitical de@ate' worthy of eGual /rotectionK
&reedom of EpressionF 'ate "peec! ' /' 9ee.stra #1<& •
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:ee0stra $teacher' was char0ed under the hate /ro/a0anda /ro)isions of the Criminal Code for main0 antiFsemitic statements to students. *id the law )iolate Section #$@'K The court held that the restriction was a )iolation, 4ustified under Section 1. hy does willful /romotion of hatred fall under /rotectionK Section #(1) does not allow content1ased restrictions 1eca!se of the offensive nat!re of speech . ts am@it could not @e narrowed @y reference to other Charter )alues such as eGuality and multiculturalism. +owever, those )alues could inform the Section 1 analysis, and hel/ to find the laws o@4ecti)e to @e >/ressin0 and su@stantial.?
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-)erride the charter edefine the ind of s/eech /rotected under the charter
Should we @e fineFtunin0 the criminal code or re/ealin0 itK
Eualit% )ig!ts S.15 came into force " years after the rest of the charter @y s."#$#', to 0i)e 0o)t a chance to chan0e laws. Sometimes o! need to treat people differentl to treat them e-!all.
+ut with narrow ill of i.hts inter-retation #$11%1& •
S.15 says the narrow @ill of ri0hts inter/retation is not to continue w. charter. Charter should a//ly to the content and a//lication of le0islation.
Andrews • • •
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C law reGuired Canadian citiHenshi/ @efore /assin0 the @ar. Bormer 2o00I Any le0al distinction )iolates s.15, su@4ect to s.1. $Could o)erwhelm the le0al system' -ther *octrineI S.1 not a//lied unless distinction causes disadvantage and is !nreasona1le !n6!stified . $s there any role left for s.1K' 3cntyre wants a middle 0round. Diolation of s.B5 ca!ses disadvantage8 go to s.B for reasona1leness.
Law =Sur/i/or4s -ension distinction not an eHuality issue> •
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A0e @ased distinction in sur)i)ors /ension calculation does not reflect a lac of eGual concern or res/ect. t has an ameliorative p!rpose8 !sing age as a pro& for need. ;e)er 0ot to S.1. S.15 has @een defined )ery narrowly, such that it is now rare to 0et to s.1. %re)ent the )iolation of essential human di0nity or freedom... $%117&' aco1!cci 3 /art test on the part of the complainant o istinctions that trigger e-!alit review I *oes the law draw a distinction @ased on %S-;AL characteristics $AndrewsI incl. citiHenshi/' or fail to tae into account an already disad)anta0ed situation $Vriend, ldrid0e'...K $or @e listedK' 3ust show actual disad)anta0e.
Constitutional Law
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%n!merated or analogo!s gro!nds I here the constitution /ermits infrin0ement on enumerated 0rounds, those laws are sheltered. $A0e of 4ud0es, CA1867 !1.#& laws for a@ori0inals, s.!" reli0ionF @ased school systems, 16F#" lan0ua0e ri0hts.' o Analogo!s to en!merated items I dentify the 0rou/ 2as the 0rou/ @een historically disad)anta0edK mmuta@ility $Can the status @e chan0ed easily or without 0reat /ersonalMemotional costK' s the characteristic rele)ant for 0o)t le0islati)e /ur/oses. %owerlessness of the 0rou/ in the /olitical /rocess. Loo at underlyin0 characteristics of listed 0rounds that mae them listed. %115& Andrews, La Borest. [orers com/ does not fit. e can discriminate @etween wor and nonFwor • in4uries. [Somethin0 can @e analo0ous @ut not discriminatory. • 3cntyre in Andrews $%115#' A distinction $intentional or not' that fulfills 1 and # deser)es scrutiny. ;othin0 added. ritten o @efore Law case. nnocent p!rpose does not save law from its effects . *iscriminati)e /ur/ose will mae laws e)en more )ulnera@le. f /ur/ose is hidden @ehind a madeFu/ reason, the new reason can @e attaced for not @ein0 /ressin0. The strict standard of re)iew in -aes smoes out the @ad reasons. *efinition of discriminationI That which maes /eo/le feel less ca/a@le or worthy, less of a human @ein0, mem@er of society. Concern for res/ect, consideration. $%1166' 2D3A; *;TE F self res/ect, em/owerment. oes the law treat !nfairl K $%117"F&' *iscriminatory if it offends human di0nityK o & nonFe9hausti)e factors $%117&' *oes 0rou/ suffer pree&isting disadvantage K o s the discrimininatin0 factor relevant8 correlated K o s the law tring to remed a disad)anta0ed 0rou/K $Lo)elaceI Allowin0 only @and mem@ers to o share in /rofits from casino was o @ecause it was tryin0 to ameliorate the situation of the disad)anta0ed nati)e americans.' ould a reasona@le /erson thin that h!man dignit is 1eing infringed K CharacteriHation. The o more fundamental the ri0ht, the more liely is a law to @e struc down. Su@stanti)e ineGuality $%117#' o
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$iron v. Trudel •
5F& *enial of automo@ile accident @enefits to an unmarried o//ositeFse9 cou/le held to @e discrimination on @asis of marital status, contrary to s. 15. ;ot 4ustified @y s. 1.
als! =2arital status distinction not a /iolation of di.nity> •
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3arital status $coha@itation without marria0e'. %resum/tion of eGual di)ision of /ro/erty for di)orced /arties. alsh had coha@itated for 1= years F a//lication for su//ort. Su/reme Court found no )iolation of human di0nity.
Goselin =(ifferent welfare -ayments not a /iolation of di.nity> •
Eoun0er /eo/le 0ot less welfare /ayments unless they had 4o@ retrainin0. *isad)anta0e @ut F ;o discrimination, no )iolation of di0nity.
S.15 and 7 re4ected.
