Download Document

Constitutional Law: 2004-2005
Kirk Shannon
CANADIAN CONSTITUTIONAL LAW 2004-2005; PROF. MARK ANTAKI
Summary by Kirk Shannon adapted from Derek McKee’s 02/03 summary
A: Amendment and Entrenchment .....................................................................................................................3
B: Policy Instruments and Flexibility in the Federal System ..............................................................................5
Reference Re Canada Assistance Plan (BC) ................................................................................................................... 6
Coughlin v. Ontario Highway Transport Board, ................................................................................................................ 6
Andrew Petter, “Federalism and the Myth of the Federal Spending Power” (1989) (CBp.435) ........................................ 8
Sujit Choudhry, “Recasting Social Canada: A Reconsideration of Federal Jurisdiction over Social Policy”) (2002)
(CBp.437) ......................................................................................................................................................................... 8
C: 19th C. Model of Parl. Vs. Modern conception of Parl....................................................................................8
Andras Sajó, “Linking Gov’t: An Introduction to Constitutionalism”................................................................................... 8
Carl Schmitt: “The Crisis of Parliamentary Democracy” ................................................................................................... 8
D: Antecedents To the Charter...........................................................................................................................9
i: Rights and Federalism ............................................................................................................................................................. 9
Union Colliery Co. v. Bryden .......................................................................................................................................... 10
Cunningham v. Tomey Homma ...................................................................................................................................... 10
Bruce Ryder, “Racism and the Constitution: British Columbia Anti-Asian Legislation, 1872-1923” (CBp.650)............... 10
Quong Wing v. The King ................................................................................................................................................ 11
ii: The Implied Bill of Rights ..................................................................................................................................................... 11
Reference Re Alberta Statutes ....................................................................................................................................... 11
Saumur v. City of Quebec .............................................................................................................................................. 12
Switzman v. Elbling ........................................................................................................................................................ 12
AG Canada v. Dupond ................................................................................................................................................... 13
iii: The Canadian Bill of Rights ................................................................................................................................................. 13
R v. Drybones................................................................................................................................................................. 14
E: The Advent of the Charter............................................................................................................................ 15
Lorraine Weinrib, “ Canada’s Charter of Rights: Paradigm Lost?”.................................................................................. 15
Andrew Petter, “The Charter’s Hidden Agenda” (1987) (CBp.704) ................................................................................ 15
Alan Hutchinson, “Waiting for Coraf: A Critique of Law and Rights” (1995) (CBp.713) .................................................. 15
Peter Hogg and Alison Bushell, “The Charter Dialogue Between Courts and Legislatures” (1997) (CBp.715) .............. 15
F: Framework of the Charter ............................................................................................................................ 16
i. INTERPRETING RIGHTS ................................................................................................................................................... 16
The Purposive Approach ........................................................................................................................................................... 16
Hunter v. Southam ......................................................................................................................................................... 17
ii. DEFINING LIMITATIONS: s.1 .......................................................................................................................................... 18
Oakes Test ..................................................................................................................................................................... 19
R. v. Oakes..................................................................................................................................................................... 19
Reference re Same-Sex Marriage .................................................................................................................................. 20
iii: Aids to Interpretation ........................................................................................................................................................... 20
Edmonton Journal v. Alberta .......................................................................................................................................... 21
G: Remedies and Enforcement ....................................................................................................................... 22
Kent Roach, “Constitutional Remedies in Canada” (1994) (CBp.1264) .......................................................................... 22
Remedies under S.24 ................................................................................................................................................................. 23
Remedies under s.52 .................................................................................................................................................................. 23
Schacter v. Canada ........................................................................................................................................................ 24
Little Sisters Book and Art Emporium v. Canada............................................................................................................ 25
H: Administrative Tribunals and Remedies ...................................................................................................... 26
Administrative Tribunals and Remedies .................................................................................................................................... 26
Weber v. Ontario Hydro .................................................................................................................................................. 27
Morin v. Canada ............................................................................................................................................................. 28
Cooper ........................................................................................................................................................................... 29
Nova Scotia Worker’s Compensation Board v. Martin .................................................................................................... 29
I: The Ethos of Charter Interpretation ............................................................................................................... 30
J: The Application of the Charter: State Action ............................................................................................... 31
Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. ...................................................... 31
McKinney v. University of Guelph ................................................................................................................................... 32
Godbout v. Longueuil ..................................................................................................................................................... 33
Hill v. Scientology ........................................................................................................................................................... 34
Page 1
Constitutional Law: 2004-2005
Kirk Shannon
K: Limitations on Charter Rights...................................................................................................................... 35
R v. Nova Scotia Pharmaceutical ............................................................................................................................. 35
Judicial Deference ..................................................................................................................................................................... 37
Contextual Approach and S.1 .................................................................................................................................................... 38
RJR Macdonald .............................................................................................................................................................. 38
Budgetary Constraints and the Charter ...................................................................................................................................... 39
Newfoundland (Treasury Board) v. Newfoundland and Lab. Association of Public and Private Employees (N.A.P.E.) . 39
L: Freedom of Religion – s.2(a) ....................................................................................................................... 39
Richard Moon, “The Secularization of Religious Freedom” (CBp.817) ........................................................................... 39
R. v. Big M Drug Mart Ltd. .............................................................................................................................................. 40
Edwards Books and Art Ltd. v. The Queen .................................................................................................................... 41
B.(R.) v. Children’s Aid Society of Metropolitan Toronto ................................................................................................ 42
M: Freedom of Expression – s.2(b) ................................................................................................................. 43
Irwin Toy Ltd. v. Quebec (AG), [1989] 1 SCR 927. (CBp.907) ....................................................................................... 43
Hate Speech ............................................................................................................................................................................... 44
R. v. Keegstra................................................................................................................................................................. 44
Richard Moon, “The Constitutional Protection of Freedom of Expression” (2000) (CBp.896) ........................................ 45
Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. ...................................................... 45
Sexually Explicit Material ......................................................................................................................................................... 45
R. v. Butler...................................................................................................................................................................... 46
Little Sisters Book and Art Emporium v. Canada............................................................................................................ 47
Thematic Analysis of Freedom of Expression Cases ................................................................................................................. 48
N: Life, Liberty, and Security of the Person – s.7 ............................................................................................ 49
Reference re Section 94(2) of the Motor Vehicle Act (BC) ............................................................................................. 50
R. v. Morgentaler ............................................................................................................................................................ 51
Rodriguez v. British Columbia (A.G.) .............................................................................................................................. 51
Suresh v. Canada (Minister of Citizenship and Immigration) .......................................................................................... 53
New Brunswick (Minister of Health and Community Services) v. G. (J.) ........................................................................ 53
O: Section 7 and the Litigation of Poverty ........................................................................................................ 54
D. Wiseman, “The Charter and Poverty: Beyond Injusticiability” .................................................................................... 54
P: Equality Rights  s. 15 ............................................................................................................................... 54
M. Schwartzschild, “Constitutional Law and Equality” .................................................................................................... 54
W. Black and L. Smith, “The Equality Rights” ................................................................................................................. 55
W.S.Tarnopolsky, “The Equality Rights” ......................................................................................................................... 55
Andrews v. Law Society of British Columbia .................................................................................................................. 55
Law v. Canada (Minister of Employment and Immigration ............................................................................................. 57
Eldridge v. British Columbia (A.-G.)................................................................................................................................ 59
Colleen Sheppard, “Of Forest Fires and Systemic Discrimination” (2001) (CBp.1190) .................................................. 59
Diane Pothier, “Connecting Grounds of Discrimination to Real People’s Experiences” (2001) (CBp.1194) ................... 60
Corbière v. Canada (Minister of Indian and Northern Affairs) ......................................................................................... 60
Lovelace v. Ontario ........................................................................................................................................................ 61
Q: Language Rights – s.16-23 ........................................................................................................................ 62
A. Braën, “Language Rights” (1987) (CBp.1222) ........................................................................................................... 62
P.A. Coulombe, “Language Rights in French Canada” (1987) (CBp.1222) .................................................................... 62
Section 23 .................................................................................................................................................................................. 63
Mahe v. Alberta .............................................................................................................................................................. 63
Ford v. Quebec (AG) ...................................................................................................................................................... 64
Doucet ............................................................................................................................................................................ 65
R: Aboriginal Peoples and The Constitution ................................................................................................... 65
Guerin v. The Queen ...................................................................................................................................................... 66
S: Constitutional Entrenchment of Aboriginal Rights ...................................................................................... 67
R. v. Sparrow.................................................................................................................................................................. 67
R. v. Van der Peet .......................................................................................................................................................... 68
R. v. Gladstone............................................................................................................................................................... 69
Haida Nation v. B.C. (Minister of Forests) ...................................................................................................................... 70
Delgamuukw v. B.C. ....................................................................................................................................................... 71
Page 2
Constitutional Law: 2004-2005
Kirk Shannon
A: Amendment and Entrenchment
Pre 1982
o Amendments to the most important parts of the Cdn constit. required legislation from the British Parl.
o Process was initiated by joint resolution of the senate and HofC
o Patriation Ref [1981] allowed for Feds to amend unilaterally but held that “a substantial degree” of provincial
consent was required as a constit convention.  forced feds to negotiate with provs. (compare with Haida case
where substantial degree of consulting was also required)
o Quebec not given a veto by the courts where an amendment would require Quebec’s agreement.
Change to Amendment formula with Regional Veto
o In Act passed in 1996, no minister can propose an amendment without the agreement of all five regions of Canada
(of which Quebec is one)
Secession Reference  Judicial Deference
o Court leaves definition of “Clear” to political actors and left application of constitutional rules to the political actors.
Politics and Amendment
o The argument is made in the CCL that, from Meech and Charlottetown, amendments are done through megachanges. Political actors are not interested in tinkering. Changes come as massive overhauls that totally revamp the
constit. Either all amendments in the package pass or all fall.
Examination of s.52(1) of the constit says the constit is supreme and all laws derive from that. S. 52(2) states that the constit
includes many acts… indicates that it is not exhaustive  written vs. Unwirtten
Written
Unwritten
Treaties with Aboriginals
Constitutional Conventions
Supreme Court Act
Aboriginal rights/title
Constitutional Conventions
Is there something important about leaving some part of the constit outside the purview of the courts? Must we protect
certain practices  ie. entrenchment of certain unwritten or written items.
o If you bring a law or convention into s.52, you could use it to strike down another law. What if it is not brought into
s.52? Could still say that other things (constit conventions) could still be supreme, foundational (eg. responsible
gov’t).
 Should you bring all constitutional conventions into s.52 then you are moving more and more away from an unwritten
constit and moving towards a written constit.
o Monahan says we can infer certain principles (conventions) from the text by reading b/n the lines. He says there is
still a basis in written.
 Constitutional conventions are binding on political actors but are not pronounced directly on by courts. They will refer to
them but cannot be directly legally binding. (brief account of what constit convention in CCL p. 456)
Antaki on Constits
o The more we move towards a written constit, the more we separate ourselves from the constit.
o Would it make sense to say, not everything can be amended? What if S.38 is limited.
o Payne’s theory that every generation should be able to revamp the constit according to what it sees as important.
Versus Burke, the constit is where we come from.
o Constit is entrenched, it is hard to change. Narrow understanding
 Look for instances where unwritten principle is invoked with direct legal effect
o Could be Roncarelli
o Judicial independence
Page 3
Constitutional Law: 2004-2005
Kirk Shannon
Defn of Entrenchment and Amendment
Entrenchment: Brought into s.52(2) of the constit and therefore part of the constit itself.
 What is included?
 Example of the Supreme Court Act. It is not in 52(2) but is referred to in general amending
formula….so is it entrenched?
 Case of New Brunswick Broadcasting Co. v. NS  States that the defn of “includes” in s.52 to be non-exhasutive.
Amendment
 Issue related to the locus of sovereignty – ie. which institutions should be vested with the power of constit amendment (eg.
directly with citizens, only gov’ts, constituent assembly?)
 balance b/n flexibility and rigidity must be found such that constit is amendable but not easily so. For example – should
there be a super-majority requirement within legislative assemblies?
 Relates to the relative Narrow-ness or broad-ness of what we think of a constitution is
Comparison to how the CCL examines the issue vs. how Monahan does
CCL
1. Design
o Sovereignty (who gets to change)
o Stability/flexibility
 Metaphor of Ulysseys and the Sirens. Constit as tying yourself down for limitation as one possibility
2. Process
 Pre 1982 with two constit conventions  no Quebec veto and “substantial degree needed”
o Political consequences of Constit conventions  Deal with legitimacy and not legality  SCC is not
involved here
o you have a distinction b/n the legal requirement and the political requirement.
o SCC is ready to pronounce (in the patriation ref) on constit conventions  Why does it pronounce on
something that is not an issue of legality??......To what extent in this ref is it usurping the democratic process?
Why is this not left to the political actors?
Amending formula’s
 Five rules for amendment in the constitution’s Patriation Package
1. General Amending formula (or the 7/50 formula) requires consent of the Parl and legislatures of 2/3’s of
the provinces and must have 50% of the population – no province alone can veto (S.38) Residual (those
amendments not caught by other formulas. Also, can use it to change specific things relating to basic
institutions (S. 42(1)).
 Time limits  amendment cannot be proclaimed until one year after the initiation of the
amendment process unless every province has indicated assent or dissent
 An amendment dies unless it I has received the appropriate degree of support w/in three
years
 Allows for a province to opt out if amendment transfers legislative powers from the
provinces in relation to edu and cultural matters with compensation
2. The unanimity procedure  consent from all provinces and feds in relation to amending the office of the
queen, the GG or the LG, number of MPs per province, use of English or French, composition of the SCC,
amending the amending formula. (S.41)
3. The bilateral procedure (special arraignment procedure)  consent required only of affected provinces and
feds when amendment only affects one or some provinces but not all. (S.43)
4. The federal unilateral procedure  Parl alone can amend fed executive, HofC or senate as long as does not
affect distribution of powers with provs. (S. 44)
5. The Provincial Unilateral Procedure  allows provinces to amend their constits as long as does not affect
other parts of the constit or things like LG. (S. 45)
Is everything Amendable in a constitution?
o Does rigidity of the amending formula limit this to the point where it is not a problem?
o Is there something problematic with the thought that everything is up for grabs or amendable in a constit?  No,
according to some, Yes according to others.
Page 4
Constitutional Law: 2004-2005
o
o
Kirk Shannon
Discussion of core beliefs and values. Discussion of protection by the amending formula.
If everything is amendable then it is possible to have a legal revolution where the entire face of the country can be
changed by legal means. If everything is not amendable then extra-legal process (violence) must take place for
complete revolution.
3. Evaluation of the Amendment formula’s
o After 1982: List 1 sucessful amendment and 2 unsuccessful. Idea of mega-constitutional changes
o Democratic practice
o Alan Cairns says amending gives powers to gov’t not to people  there should be more popular input in
amending procedure.
o Monahan disagrees citing Charlottetown referendum as the democratic potential
o Question then becomes is – whose consent is needed for an amendment.
o Quebec
o Legal duty to negotiate  Is it a legal duty? On what basis is it a legal duty? Unwritten principles are relied
upon to negotiate. Similar set of questions as Patriation Ref but a different basis for the decision  In 1980
was based on constitutional conventions whereas in the Secession Ref referred to these unwritten principles.
However, still using the language of legitimacy.
Monahan Account
1. Attention to what is included or entrenched
o Re Written: P. 178 list of thing that are not formally included but are of a constitutional nature. How ought
the court decide where something should be included. Certain things are in the amending formula ought to be
included or entrenched. Example of the Supreme Court Act. If it is not read as constitutional, then parl could
change it at will….but…..need to use amending formula….so, contradiction.
o Re Unwritten: Are constitutional principles from the Secession Ref entrenched?
B: Policy Instruments and Flexibility in the Federal System
Looked at the manner to change the powers in the constitution above. Now examine the manner in which levels of gov’t
work within the division of powers as they currently are.
 Authors of the CCL refer on several occasions to “social policy” as issues of flexibility came to the forefront when social
policy and the idea of the welfare state came to be created. When there was a minimal role by the gov’t in society, division
of powers worked fine. When the role is increased we must rethink this division of powers.
How does social policy relate to flexible federalism. Gov’t is straight-jacketed by s.91,92. State is asked to do more and get
involved. Must reconcile the division of powers.
Spending Power
K.G. Banting “The past speaks to the future: Lessons from the Postwar Social Union”
With post-war devel of welfare state, Feds began to become involved with giving certain benefits to citizens. There were
various Federal Instruments used to do this:
1. Direct Federal Programs: Feds have substantial part in social policy. Through: Income security – UI and
pensioins, family allowances, old age security. Feds kept right to make payments to institutions, gov’ts for any
purpose. Also taxation.
2. Shared-Cost Programs: In health care, social assistance, postsecondary edu. Feds stimulated growth of social
services.
 Sujit Choudhry points out that the federal standards attached to shared-cost programs are generally not
enforced, due to:
 lack of resources for information gathering
 lack of political will to interfere in something seen as provincial
 lack of legitimacy following federal cutbacks
3. Equalization Grants: Third instrument that sustained pan-Canadianism. They are unconditional and in theory
are to reduce provincial taxes (not improve provincial programs). In the constitution in S. 36(2).
Page 5
Constitutional Law: 2004-2005
Kirk Shannon
Antaki’s bits
Formal Flexibility  Altering division of powers
Informal Flex  Getting around the division of powers (CCL p. 446)
1. Intergov’tal agreements
 Tied up with the spending power.
 Issue of enforceability
 intergovernmental agreements: These can be detailed contracts (like the Agreement on Internal Trade) or
general statements of goals and policies
 CCL says, maybe we should think about constitutionalizing this type of agreement. Complaints that they do not
bind Parl. So, as exec, you can enter a agreement but then as Parl you are not bound. Issues with parliamentary
supremacy  right now increases idea of democracy (not just the exec doing its thing but the elected officials
having their say.
Reference Re Canada Assistance Plan (BC)
Jurisdiction
Facts
Issues
Holding
Ratio
BC SCC[1991]
- dealt with the legitimacy of the federal government’s unilateral decision to put a “cap on CAP” dispite
intergovernmental agreement (which was a federal law), i.e. to limit the money going to the “have”
provinces of Alberta, B.C. and Ontario for social assistance and welfare.
- Feds unilaterally decided to reduce transfer by 5%. Initiation of a reference.
- Agreement specifies: Feds must transfer $ with no amount. Must consult the law.
- Federal law specifies: Is subject to the interpretation act which allows for repeal.
- The B.C. government initiated a reference to the B.C. Court of Appeal. That court held that the federal
government was bound by its agreement with B.C. and had to obtain B.C.’s consent to reduce its transfer.
Can feds unilaterally amend the CAP?
The SCC (Sopinka J) overturned this decision, and allowed the cap on CAP. Feds, in this case could
unilaterally amend.
Sujit Choudhry notes three readings of this decision (CBp.445):
LAW AND POLITICS
1. The agreement did not specify the amount of funding, so it was never breached (based on points in
“facts” above)
2. The agreement was binding, but it could be circumvented by legislation (and only by legislation).
3. The agreement only created political obligations, not legal ones.
2.
Delegation as an instrument of flexibility
 Why might it not be permitted in our federal system?
 Example of delegation of powers to be administered by boards. Problems with this as it is Parliament’s duties.
From one case (Sopinka J.) how can you have a criminal offence based on what a board decides. This is
comparable to a debate in the US. Tension that we want Parl to do this and not a board of experts behind closed
doors.
 What conclusions can you make about Cdn Constit law on delegation?  Parl and provincial cannot delegate
the other to make laws to the other level of gov’t (from a NS (1955) case).
 Also related to the following case.
Coughlin v. Ontario Highway Transport Board,
Jurisdiction
[1968] SCR 569
Facts
- Coughlin is an extra-provincial trucker who must get license for trucking in Ont.
- Each of the provinces already had a Board regulating intraprovincial trucking, but interprovincial trucking
was technically under federal jurisdiction
Issues
Is the power to reg interprovincial trucking ultra vires Ontario.
Holding
the SCC upheld sections of the federal Motor Vehicle Transport Act which delegated the licensing of
interprovincial trucking to provincial agencies.
Ratio
- Federal law is in existence. It makes the conditions needed for intraprov licences the same as those
needed for interprovincial licence and allows the prov board to determine those requirements.
Cartwright J.
- It is not delegation of law-making power but the adoption by Parl in the exercise of its exclusive power,
Page 6
Constitutional Law: 2004-2005
Kirk Shannon
of the legislation of another body as it may from time to time exist. (Sounds like piggy-backing)
- Difference b/n abdication and delegation. Abdication is not ok, but delegation (thought the word is not
used) is ok so long as the power can be taken back.
- Distinguishes from NS case which stated that Parl and provincial legislatures cannot delegate authority
b.n each other.
Dissent:
Richie J:
- Centered around fact that provincial laws govern federal laws. And an exception is not a law.
- Feds should always have authority on interprovincial.
- Points to the history of this legislation and the manner it was received as well as a case in NB that was
very similar but NB was not allowed to reg interprovincial trucking. There is an extension of Provincial
power from the NB case to allow Ont to have more power and regulate interprovincial trucking.
- Richie has no problem with simple incorporation – you said that and we will incorporate it into our law.
Has a problem with allowing the provincial legislature to change the law from time to time.  Anticipatory
incorporation by reference.
- Just b/c you reserve your right to create exceptions, does not mean you have not delegated.
Notes
- Involves Administrative delegation through the provincial board.
- Incorp by ref by the fed gov’t of rules of Ontario on trucking licence. It is anticipatory as when the prov
rules change then so will the feds.
- Conditional legislation. Province must have a law in order for the federal law to be triggered. Without
it, would not work
In the Nova Scotia Interdelegation case (1951), the SCC took a principled and coherent position, saying that neither
Parliament nor the provincial legislatures could delegate legislative power to the other level of government.
2. However, the federal government and the provinces have used “devices” to get around this ruling:
1. administrative delegation: when one level of government carries out the functions legislated by the other
2. incorporation by reference: when the laws of one level of government acknowledge the authority of the
other level’s law
3. conditional legislation: legislation which requires the other level of government’s approval before coming
into effect.
3.
Spending power
a. What is it?
 Power of federal gov’t to spend money outside its jurisdiction.
b. How has it been exercised?
 Direct Federal…
 Shared cost programs  Most controversial b/c there are conditions attached to the money.
Therefore, the question is raised, are you merely spending money or are you trying to do
something else. (Does not include equalization payments as there are no strings attached)
c. Possible constit bases or defences for the spending power?
 Justification that any legal person should be able to spend money.
 S. 91a s.91(6) and S. 106
 In Aus there is explicit ref to spending powers  but still controversial
 Equalisation grants….but they might not be considered spending power as there is a textual basis
for them and not conditions are attached.
 Could be considered to challenge federalism though….
d. Justiciable or Constitutional limits
 Winterheaven case says the conditions are ok so long as they don’t amount to control or
regulation. Court not wanting to commit but leaving themselves a way out in the future.
 CAP case – less clear the way that the court is leaving themselves a way out.
e. Why lack of answers – re: scope and limits
 Neither the feds nor the provinces want to go to court.
 What are courts supposed to do when there has been a practice for 40 or 50 years but there is no
constit basis for it? What is the weight of that?
f. Window into federalism and constitutionalism
Page 7
Constitutional Law: 2004-2005


Kirk Shannon
Federalism: Who better reflects the values and needs of the people – are the feds going against the
principles of federalism…..Petter argument see below. You have national majorities and regional
majorities and they sometimes come into conflict.
Federalism: Causes problems dealing with responsible gov’t. Who is accountable for what
decisions. Give money but then cannot be blamed for the decisions on spending. Issues of
policy. Also issues of taxation.
Antaki
Faith in constitutional texts. It does not deal with this issue. How much does the country really reflected in constitution.
Spending Power and the Constitution
- Spending power originally limited to areas of jurisdiction but expanded in SCC’s judgment on Unemployment
Insurance Ref [1936] where funding can be given with stipulation as provinces are able to accept or decline
funding with conditions attached.
- Look now to whether the conditions attached to the grants amount to a federal attempt to legislate in areas of
provincial jurisdiction.
Andrew Petter, “Federalism and the Myth of the Federal Spending Power” (1989) (CBp.435)
 Petter finds the spending power problematic on two grounds:
1. It allows the federal government to meddle in areas that are clearly of provincial jurisdiction. It is thus inimical to
basic federalist principles. (Petter seems to be defending a kind of subsidiarity.)
2. It mixes up responsibility for certain fields between two levels of government, which detracts from accountability
and “responsible government.” This also confuses citizens who would like to campaign for any kind of policy
changes—which level of government should they address?
Sujit Choudhry, “Recasting Social Canada: A Reconsideration of Federal Jurisdiction over Social Policy”) (2002)
(CBp.437)
 Choudhry argues in favour of federal jurisdiction over social policy based on the idea of a kind of “race to the bottom”:
Provinces that tax the rich to provide for more generous services will see an exodus of rich people and an influx of poor
people.
1. This scenario assumes that moving is cheap.
2. Someone commented in class that moving is cheap for poor people, and this scenario seems to reflect what
happened in B.C. under the NDP government: There was an influx of homeless people.
3. Antaki is against the idea of economic citizenship
C: 19th C. Model of Parl. Vs. Modern conception of Parl
Andras Sajó, “Linking Gov’t: An Introduction to Constitutionalism”
 Parlimentarism as a rational debate is not in touch with reality. Historical conditions have changed since the
nineteenth C.
 Party system has totally changed this original form of parliament. It has declined into a party system.
 19th C. Parl was a forum of openness. This has disappeared. Real debates no longer happen in Parl, happen in the
parties with the business interests.
 Characteristic of the decision making process. In 19th C., debate could change or transform others to come to a
truth. Now, one cannot be transformed but is seeking to improve his or her own interests.
 Parl system is supposed to select the best individuals or at least change them. The belief in this system has been
shaken.
Carl Schmitt: “The Crisis of Parliamentary Democracy”
 Delves more into Parl as an institution. Gliches that we have are to do with broader beliefs that we have.
 Inherent contradiction when trying to mix liberalism and democracy.
 Idea that a good presidential system could be equally effective.
 Question of legitimacy. Can Parl still offer legitimacy?? Presidential relies on charismatic legit – whereas parl’s
Page 8
Constitutional Law: 2004-2005
Kirk Shannon
legit is supposed to derive from somewhere else. Supposed to come from legit debate searching for truth.
When an institution has certain intellectual foundations that are changed (decisions in the Parl to decisions in the
parties) how do we see this institution.
Liberal Ideas in Parl  Come to the table with my opinion and listen to yours and allow it to influence my own. Not just
come to the table with a set of interests. Per Sajo, at the thought of the people.
Democratic Idea: Someone who speaks for us. Focus on representation. Per Sajo, at the will of the people.
 Transformation from focus on truth to a focus on interest. This is b/c of the rise of democracy, mass media, party
system. Democracy itself undermined the Liberal idea of Parl.
 How do our own positions combine cynicism with a naiveté should be a question we ask.
 This system that is loved by these two writers should be evaluated outside of progressive values we have today.
 What would be the conditions of the old model of Parl today – is it possible to have a parl w/out some kind of
elitism.
 What has been lost – some sense of legitimacy.

Think about: How have texts shed light on what we have covered in the past and will cover in the future?
Ask
1) How do these texts help us think about basic constit principles
2) How do these texts intro or help us think about charter.
Thoughts from tutorial group:
 Sajo: Parliament is not the organisation of the will of the people but that of the thought of the people.
 Bushel and Hogg (p.715) Dialogue b/n the Parl and the judiciary. In a sense this could be considered a return to
Sajo’s 19th C. liberal principles.
 Schmitt: Modern mass democracy has made “argumentative public discussion an empty formality.”
 Could be considered to be applied by Dickson in Edwards where he basically says - can’t interpret the
Charter such that it simply becomes an instrument of better situated individuals to roll back legislation
which has as its object the improvement of the conditions of less advantaged. (CBp. 838)
 We have this liberal document and the first thing we see is a reference to free and democratic in s.1
which seems to make sense.
D: Antecedents To the Charter
i: Rights and Federalism
Was the charter a break through in rights – is there anything that was already there?  major change is from evaluation to
powers to evaluation of rights. Relationship b/n governments is emphasised and relationship with citizens to gov’t is played
down.
 Judge’s logic focuses here on Pith and Substance and if right is subsumed under an enumerated head of s.91/92. It
lacks any contextual analysis.
Three Branches:
1.
2.
British Constit and Rule of Law
Federalism
 Race
 Implied Bill of Rights
3. Ordinary legislation and Bill of Rights
Rights and Federalism
-Federalism (division of powers) is another antecedent to Charter. Two themes:
1) First is the ways that rights were protected in the basic idea of federalism itself and in terms of BNA Act.
-Federalism may be way of protecting rights by separating groups that may quarrel and seek to oppress each other if
combined in the same state.
2) Second is the ways that rights were protected (or ignored) in decisions re: division of powers. See this in Federalism and
Race and Implied Bill of Rights.
A. Federalism and Race
Page 9
Constitutional Law: 2004-2005
Kirk Shannon
-Discriminatory legislation restricting immigration by prohibitions, taxes, language tests; denied franchise and restricted
eligibility for public office; discriminatory license requirement on businesses and prohibitions against employment.
Federalism and racial minorities
The way that the courts have dealt with legislation that is explicitly racist is disheartening. Background – from mid-19th C
on, there was significant immigration to western Canada by Chinese and later Japanese. Responsible for building the
railway. Immediately attracted the attention of the legislatures, who restricted their liberties.
Union Colliery Co. v. Bryden
Jurisdiction
[1899] A.C. 580 (P.C.). (CBp.646) British Columbia
Facts
The B.C. Coal Mines Regulation Act prohibited employment of “Chinamen” for underground work in coal
mines. Mine owners didn’t like it because it denied them cheap labour, and many of them disobeyed it.
Bryden, a shareholder in Union Colliery, sued Union Colliery for employing Chinese workers, in hopes of
having the law declared ultra vires.
Issues
Did B.C.’s discriminatory law encroach on federal jurisdiction?
Holding
Yes.
Ratio
- Lord Watson held that, although the Act had to do with property and civil rights, it also encroached on the
federal s.91(25), “naturalization and aliens.” (ie. could be double aspect). Watson held that s.91(25)
included not just the process of naturalization, but also the rights and privileges of people who have been
naturalized. Watson interpreted the rule to apply only to aliens and naturalized subjects (i.e., not to
Canadian-born Chinese), and therefore found that the pith and substance of the regulation was
naturalization and aliens. (Lord Watson was formalistic: he said he wasn’t asking whether the legislation
was wise.)
- s. 91(25) gives parliament exclusive authority over aliens and naturalized subjects, including the
effects/consequences of naturalization, vis-à-vis civil and political rights. So, laws against all Chinese
persons trenches on federal jurisdiction.
Comments
It’s unclear whether there were no Chinese-Canadian men, born in Canada and old enough to work on the
mines by this time, or whether Watson used a bureaucratic (rather than a racial) definition of “Chinaman.”
The latter possibility seems like it would have been ahead of its time.
Cunningham v. Tomey Homma
Jurisdiction [1903] A.C. 151 (P.C.). (CBp.648) British Columbia
Facts
B.C.’s laws prohibited Japanese (whether naturalized or not) from being entered on the electoral rolls.
Tomey Homma applied to have his name listed, and Cunningham (the official) refused.
Issues
Was B.C. ultra vires in banning Japanese from voting?
Holding
No.
Ratio
- Lord Halsbury acknowledged that the Naturalization Act of Canada stated that “a naturalized alien shall
within Canada be entitled to all political and other rights, powers and privileges to which a natural-born
British subject is entitled in Canada.” However, he found that the B.C. law fell under s.92(1), regarding the
constitution of the province (repealed in 1982). It was within the province’s power to grant suffrage or take it
away; suffrage was a “privilege.” Halsbury distinguished Union Colliery, since this dealt with the “ordinary
rights” of inhabitants of B.C. Again, the JCPC said that it was not assessing the wisdom or fairness of the
law.
- 91(25) is concerned only with defining alienage and naturalization, and does not confer jurisdictional
over the privileges that may or may not be attached to naturalized subjects.
Comments
It’s generally acknowledged that this decision was inconsistent with Union Collery (see Bruce Ryder,
below).
I’m puzzled as to why the issue of paramountcy didn’t come up—it seems to me that there was a direct
conflict between the Naturalization Act of Canada and the B.C. law.
Antaki on Cunningham
- Union Colliery was here limited in scope as was said to deal only with ordinary rights
Bruce Ryder, “Racism and the Constitution: British Columbia Anti-Asian Legislation, 1872-1923” (CBp.650)
 Ryder says that Cunningham v. Tomey Homma’s limiting of the Union Colliery case can only be understood in terms of
the racist assumptions and beliefs prevalent in society at that time. “Provincial laws imposing racial disabilities were
Page 10
Constitutional Law: 2004-2005
Kirk Shannon
held to be valid when they were believed to rest on accurate assumptions about racial difference.” Thus no one could be
prevented from earning a living (especially as a labourer), but voting rights and rights as employers were another
matter.
Quong Wing v. The King
Jurisdiction [1914], 49 SCR 440. (CBp.651) Saskatchewan, Davies J.
Facts
Saskatchewan enacted the Female Employment Act, which prohibited any “Japanese, Chinaman or other
Oriental person” from employing a “white woman or girl.” Quong Wing employed two white women as
waitresses in his restaurant, and was charged under the Act.
Issues
Was the legislation ultra vires?
Holding
No. intra vires
Ratio
- Davies J (intra vires) In an ultra-formalist judgment (“What objects or motives may have controlled or
induced the passage of the legislation in question I do not know.”), Davies J found that the right to employ
white women was a civil right under s.92(13), and that it was one that the legislature could grant or take
away.
- He saw no constitutional reason why such a right could not be denied to a racial group. He distinguished
Union Colliery, because he did not find that the pith and substance of this law dealt with naturalization and
aliens.
- Duff: (intra vires) Act applies to races, which can be defined by common characteristics and habits,
without regard to nationality. Nothing in the act goes beyond local concerns because it doesn’t address
naturalization. Classification based on race not on nationality therefore does not infringe on s.91(25).
Dissent
- In a searing rebuke, Idington J (dissent) argued for equality rights, and condemned the Female Emloyment
Act as being “the product of the mode of thought that begot and maintained slavery.” He also appears to have
made a paramountcy argument, based on the Naturalization Act of Canada. Idington J would have read
down the legislation to have it only apply to non-naturalized “Chinamen.”
Antaki on Quong Wing
- Still say they are trying not to be political. Distinguishing themselves from political decisions. But yet….see
difference from this decision and Union Collery
- Here again, does not “want to judge the wisdom of the legislation” but rather to examine where the power lies.
ii: The Implied Bill of Rights

The implied Bill of Rights: the Constitution did not expressly limit the legislative authority of Parliament or a province
to interfere with fundamental freedoms.
 Generally, the legislative authority to interfere with fundamental freedoms is distributed between the two levels of
government, with the critical issue being whether the law in question is in relation to subject matter that is assigned to the
level of government that enacted it (basic traditional federalism stuff).
 Based on British Constitutionalism stuff.
Reference Re Alberta Statutes
Jurisdiction [1938] SCR 100. (CBp.657) Alberta
Facts
The newly-elected Social Credit government, under fire from the Alberta press, introduced the Publication of
Accurate News and Information Bill, which required newspapers to publish statements of government
propaganda. When the Lieutenant Governor refused to assent to the Bill (as well as two economic policy
bills), the issue was referred to the SCC.
Issues
Was the Bill ultra vires the province?
Holding
Yes. Ultra vires
Ratio
- Cannon J held that the bill was in pith and substance criminal law, because it dealt with public wrongs, not
private ones, and concerned matters that were traditionally dealt with under criminal law (“seditious libel”).
- Cannon J then linked the preamble of CA1867 to democracy, which he linked to freedom of speech.
However, he went on to say that Parliament could curtail freedom of the press “if deemed expedient and in
the public interest.”
- Duff CJC (concurring) made a stronger stand in favour of free speech (derived from the preamble),
although he too admitted that it could be limited in certain ways. (He said that Parliament had the authority
to legislate for the “protection” of free speech.) The provinces certainly could not interfere.
Comments
Page 11
Constitutional Law: 2004-2005
Kirk Shannon
Antaki on Re Alberta Statutes
o Two places that could allow Parl to limit free speech – criminal power and possibility of national concern.
Background for Roncarelli
Saumur v. City of Quebec
Jurisdiction [1953] 2 SCR 299. (CBp.662) Quebec
Facts
Saumur, a Jehovah’s Witness, was convicted for distributing pamphlets in the streets under Quebec City’s
anti-pamphleting by-law.
Issues
Was the by-law ultra vires?
Holding
Yes. (5-4 split, a tangle of seven different judgments)
Ratio
- Rand J denied that the by-law was in pith and substance concerned with the regulation of streets (as the city
claimed). He held that freedom of religion originated as a pre-legal right. He also drew support from the
protection of denominational schools in CA 1867, and from the preamble. He held that, if provincial
legislation would need to encroach on rights incidentally, it should have to be specific. Provinces cannot
restrict freedoms of citizens in a manner incompatible with the preamble of the BNAA.
- Rinfret CJC, dissenting, took a formalist approach: He took the by-law at face value, accepting that it had
nothing to do with religion. He nevertheless objected to the content of the pamphlet, and quotes some of the
more spectacular passages in his judgment in order to discredit the Jehovah’s Witnesses.
Comments
Rand J was influenced by U.S. legal realism, and was much more comfortable interpreting laws in terms of
their policy meaning.
Antaki on Saumur
o Limited sovereignty and original freedom  could be just an interpretive technique
o Rand refers to these original freedoms as necessary and primary
o Rinfret judgement is one of the few judgements where a judge wears his biases on his sleeve  strictly roman
catholic with little tolerance for pamphlets that are so “indecent”.
Switzman v. Elbling
Jurisdiction [1957] SCR 285. (CBp.668) Quebec
Facts
Quebec’s infamous “padlock law” made it illegal to use any house to propagate communism. Switzman used
his house to propagate communism, and his landlord tried to evict him.
Issues
Was the “padlock law” ultra vires?
Holding
Yes. ultra vires
Ratio
- Rand J relied on the preamble, which he said implied freedom of speech. He denied that the law could be
narrowly defined to fall under s.92(13) or s.92(16). He did however apparently leave open the possibility that
Parliament could limit free speech using the criminal law power (in crimes like sedition). Provinces cannot
suppress civil liberties through an exercise of 92(13) and 92(16) powers.
- Abbott J appears to have gone even further, arguing on the basis of the preamble that neither the provinces
nor Parliament could “abrogate” the right of discussion and debate. (Although he did acknowledge the
criminal law power and POGG.) This is the first suggestion that the federal government could also be
bound by the implied bill of rights. (It’s interesting to compare this to Idington’s dissent in Quong Wing.)
- Taschereau J dissented, arguing that this law could not be considered a criminal law, because it did not take
a criminal law form (prohibition and penalty). He felt that it had more to do with suppressing the conditions
that led to crime. While acknowledging the importance of freedom of speech, he argued that communism
was a threat to that freedom, and so on.
Comments
It’s interesting to compare Taschereau’s condemnation of communism to later controversies around hate
speech.
Antaki
o Abbott extends protection to discussion and debate. Does not extend them to religion.
o To what extend is the freedom of expression attached to Sajo and Schmitt articles  this is the very basis of
parliament.
o Question raised  do we need the language of rights or can we do the same thing through other powers?
o Question raised  use of the criminal law. If prov’s can’t do it b/c it is like a criminal law, can Parl do it? How
strictly will you read the criminal
Page 12
Constitutional Law: 2004-2005
Kirk Shannon
AG Canada v. Dupond
Jurisdiction [1978] 2 SCR 770. (CBp.672) Quebec
Facts
Dupond challenged a Montreal municipal by-law which imposed a 30-day ban on any demonstrations or
public gatherings.
Issues
Was the by-law contrary to the implied bill of rights (or the Canadian Bill of Rights)?
Holding
No. By-law is constitutional
Ratio
- Beetz J accepted the implied bill of rights, but held that marching was not included. He held that
“demonstrations are not a form of speech but of collective action. They are of the nature of a display of force
rather than an appeal to reason…”
- He distinguished freedom of speech, freedom of association, freedom of assembly etc. from the right to
hold a demonstration on public ground, which was not part of British law (and therefore not covered by the
preamble). (The Canadian Bill of Rights only applied to federal laws.)
The second ground of contest is hopelessly vague, but can be countered with the following propositions:
1) none of the freedoms referred to is beyond the reach of competent legislation
2) all of these freedoms have multiple aspects—open to both levels of jurisdiction
3) Freedom of speech =/= faculty of holding assemblies and gatherings on public domain
4) no right to hold meetings in public spaces exists in English law
5) assemblies and gatherings on public domain can be regulated by both levels of government
6) Cdn Bill of rights does not apply to provincial or municipal leglislation.
Constitutionalism does not protect freedom of assembly on public domain.
Comments
Hogg adds that the UK did not have a long tradition of protecting civil liberties and human rights. What it
had was a tradition of parliamentary sovereignty and parliamentary rights.
 In the OPSEU case (1987), Beetz J again referred to the implied bill of rights, and said that it remains in effect even
though we now have the Charter. (Of course, he said it didn’t apply in that case either.)
 The Quebec Secession Reference of course implied various rights and principles too. Judges may be implying new rights
(even after 1982) in order to give themselves more discretion.
 It’s interesting to compare these cases with contemporary Australia, where there is still no explicit bill of rights, but the
High Court has developed an implied bill of rights (see p. 675).
Statutory provisions
 In the aftermath of WWII another instrument for the protection of legal rights is a statutory human rights code. As
another legal instrument for protecting human rights.
 Ontario went first – following the Holocaust and the emergence of human rights norms internationally. Subsequent to
the Ontario human rights code all of the other provinces legislated on this.

Common to all codes:
1. prohibit discrimination re. rental of accommodation, employment, hiring
2. administrative tribunals for complaints, a human rights commission in establishing facts, etc.
3. the statutory codes don’t just apply to the public sphere – they apply to private matters as well. (the charter only
applies to public)
iii: The Canadian Bill of Rights
 First bill of rights passed in Saskatchewan 1947. Federal version Passed by Canadian government in 1960.
Features:
1. federal legislation that only applies to federal law
2. ordinary statute of Canada, not entrenched in any way, can be removed by ordinary legislative processes.
3. the results decided under this bill were generally very disappointing to human rights activists and in terms of the
principles and ideas that came out.


Clause 1 raises the question and made possible the notion that the rights protected by the bill are those that existed in
1960 (Frozen rights?). What if the law was so clearly violative of rights – does it allow you to strike it down or is it just
for interpretation?
Ten years after the Bill of Rights was enacted, along came Drybones which was the only case where the SCC used the
Bill of rights to make another federal statute inoperable:
Page 13
Constitutional Law: 2004-2005
Kirk Shannon
R v. Drybones, [1970]
The Indian act at the time made it an offence to be intoxicated off the reserve. The NWT liquor ordinance made it an offence
for anyone to be intoxicated in a public place. Thus, there was a difference in the law – if you were an Indian, if you were in
a public place or not off a reserve then you were arrested. SCC affirmed that the bill could be used to strike down other
legislation. Also, it implicitly affirmed that just because the bill was around in 1960 it doesn’t mean that it protects pre-bill
of rights statutes. s.94(b) of the Indian Act, which made it a crime for status Indians to be drunk off a reserve was struck
down as violating his right to equality before the law—the Indian Act was passed before the Bill of Rights. Discrimination
on the basis of race. SCC also held that the Bill of Rights was declaratory, not just an interpretive aid.
Other cases using the Bill of Rights
o In AG Canada v. Lavell, an Indian woman who married a non-Indian would lose her status. But an Indian man
marrying a non-Indian wouldn’t. Equality did not incorporate the egalitarian ideals from the American bill of rights.
(Ritchie) interpreted equality before the law as an aspect of Dicey’s version of the rule of law. So long as there is a
fair application of the law to everyone for whom it applies, then it’s ok (!!). So if all women lose their status and
no one is treated differently, then that’s ok. This is a procedural conception of equality. The critics went nuts.
o In Bliss v. AG Canada, the Unemployment Insurance Act provided a regime of pregnancy benefits. Pregnancy
benefits provided for a longer qualifying period than regular benefits, and if you left work because of pregnancy you
could only apply for pregnancy benefits and not ordinary ones. Bliss argued that she was denied equality before the
law because she was not allowed to apply for regular benefits even though she qualified. Court said that the law was
passed for a valid federal objective. Distinguished Drybones saying that it dealt with unequal penalties and this is
the denial of benefits.
By the 1980s it was decided that the Bill of Rights would not be useful for rights cases. But it’s still on the books.
o The Bill of Rights has relevance in 2 ways: a) contains rights that are not in the Charter--right to a fair
hearing is limited to those who are charged with an offence in the charter. But in the Bill, the rights are
broader; b) protects the use and enjoyment of property but the Charter doesn’t.
IN SUM
 Something to do with the protection of rights and the limits placed on the gov’t
 These limits are entrenched in the constit. Law will be rendered no force and effect if they conflict with the charter.
 Trace it back in time
o 1. British constit and Rule of Law. Important in this tradition it that all state action must be authorized in
a political framework (see Roncarelli). In British tradition, language of rights is important but it is not
clear how it will be used in practice
o 2.a Federalism and Race  Scope of Parl’s legislative jurisdiction over naturalisation and aliens. When
will Pith and Substance be really over naturalisation of aliens. Union Colliery to Quon Wing. Union
Collery has a broad category of things that go along with naturalisation. Think about the extent to which
the language of “effect” was used – incidental effects. Is P&S being applied or is even if in Provinces
jurisdiction, are there still not allowed to be incidental effects (not often the case but sometimes used).
 Also, Slavery in Idington’s dissent on CBp. 653
o 2.b Federalism and the Implied Bill of Rights. Several cases where laws were found to be ultra or intra
vires. When a provincial law is struck down on the grounds of federalism, this does still not answer the
question as to whether Parl would have been able to enact this type of legislation itself. Abbott J. in
Switzman says Parl would not have been able to do it themselves.
o 3. Ordinary legislation and Bill of Rights: Can Parl bind itself through ordinary legislation? Manner and
form requirements but it is simply ordinary legislation. Can be avoiding by saying the law will apply
notwithstanding the Bill of Rights. Also, extent to which it can be reduced to a mere interpretive tool or, is
it more?
Page 14
Constitutional Law: 2004-2005
Kirk Shannon
E: The Advent of the Charter
Vocabulary  infringement, violation, limitation. All used in confusing way.
CH. 16  CCL
1. Historical and political context when charter was adopted. Debates when adopted
2. Ongoing debate regarding legitimacy of judicial enforcement. Idea of politicisation of the judicial system is
heightened with the charter.
Lorraine Weinrib, “ Canada’s Charter of Rights: Paradigm Lost?”
 Discussion of s.1 and its development. Initially so much legislative discretion that it would have originally meant
nothing. Difference b/n “generally accepted” and “demonstrably justified”. This puts a burden of proof on the gov’t.
 Also added ‘prescribed by law’
 Took out Parliamentary system and added free and democratic society.
 S.33 insulates the judicial function from illegitimate political entanglement.

Andrew Petter, “The Charter’s Hidden Agenda” (1987) (CBp.704)
 The Charter is “a regressive instrument more likely to undermine than to advance the interests of socially and
economically disadvantaged Canadians.”
 The Charter is “at root, a 19th century liberal document set loose on a 20th century welfare state.”
 Charter and 19th C liberalism – implicit in these is a conception of state and individual. Idea of limit the state, of the
state should be limited so as not to do evil. In present day, could limit the state from doing good – perpetuating the
status quo. Reminiscent of Sajo and Schmitt  19th C. liberal doc.
 Negative rights represent a systemic bias in favour of the upper classes.
 Progress has come through legislatures, not courts; if the Charter is progressive it will only be in upholding legislation.
 Citizens’ groups will blow their money on Charter challenges. As such, in denying access to rights by putting them in
the hands of the courts, serves to shape the rights themselves.
 Charter challenges are extremely expensive, thus limiting access to the courts.
 Judges are wealthy lawyers and their decisions will reflect their class interests.
 See also D. Wiseman on s.7 “ The Charter and poverty”
Note comparison with McKinnon and idea of false consciousness a la Marx.
Antaki
 Not all positive rights in the charter are not all nec 19 th C. liberal thought set loose……
Should think, to what extent does charter change the political and legal landscape (rather than left vs. right). To see more on
this, read Hogg and Bushell below
Alan Hutchinson, “Waiting for Coraf: A Critique of Law and Rights” (1995) (CBp.713)
 Hutchinson’s critique of the Charter comes from both left and right.
 He says that Charter rights are indeterminate, and that the act of interpretation can never be objective.
 Charter cases are really about resolving social and political conflicts.
 It is paradoxical to justify the Charter in terms of some kind of societal consensus of values. If we really had a
consensus, we wouldn’t need a Charter! All of the Charter litigation since 1982 proves that we have widely divergent
values within Canadian society.
1. If we really has a consensus, why would we find it necessary to entrench it in a document that is almost impossible
to change and entrust the enforcement of that document to a small, unrepresentative group of people?
Peter Hogg and Alison Bushell, “The Charter Dialogue Between Courts and Legislatures” (1997) (CBp.715)
 Hogg and respond to critics of the Charter by describing a “dialogue.” Courts can put issues into public debate and onto
the legislative agenda. Legislatures can reverse, modify or avoid judicial decisions.
 In most cases, legislatures can respond to Charter review by making minor modifications that do not compromise the
objective of the legislation.
 The Charter has four features that facilitate dialogue:
1. s.33 provides a way for a legislature to circumvent the Charter.
2. s.1 limits rights to what can be reasonably justified.
3. Some rights contain internal limits, e.g. s.7 and s.8.
Page 15
Constitutional Law: 2004-2005
Kirk Shannon
4. Equality rights give legislatures a choice between extending benefits to all or denying them to all.
There are also “barriers” to dialogue. The Morgentaler case provides an example of an issue becoming so divisive that
legislatures don’t want to touch it. Opposite would be Same-sex
 The Charter has an influence beyond judicial decisions, such that legislatures consider rights questions when drafting
legislation.
1. This idea is derived from an American book, The Common Law in an Age of Statutes (Calabresi)
Antaki
 Seems to be rebutting the arguments from the right. Here there is a focus on the dialogue b/n the Parl and supreme
court.

SUM of Advent of Charter
 Petter and Hogg was focus of our discussion.
 Petter  Raised arg that charter is 19th c leiberal doc set loose on 20th c welfare state.
o Revolves around set of dicotomies (state and private power)
o 19th C. though was protection of individ from intereference from the state. In the 20 th C, that is no longer
the case
o Key terms that make up charter don’t adequately respond to the goals set out
o Charter could have helped in redistribution.
o Charter involves juridification of politics. More will be directed to courts instead of legislatute. Shift from
democractic arena to judicial arena.
o Background: Law as tool of social change and progress.
 Hutchinson  Critical legal studies is his thing
o Radical indeterminacy of law  Clearly political character of law.
o Argument might resonate too easily with lots of us (though at the time written was new theory)
 Hogg  Charter does not preclude ….
o Dialogue b/n courts and legislatures
o It is not nec that any charter will facilitate dialogue but there are features in this charter that will allow for
dialogue. (four features, see above)
o Rejoinder to both left and right arguments  Equally a response to likes of Hutchinson and to Petter
 Regardless of whether charter is going to advance progressive concerns or not….what is the legal impact of the
charter. Where is not reducable to people’s positions (ie left or right). This is what Hogg seems to be doing.
 Look to enforcement.
 Look to whether administrative tribunals can invoke the charter
 Look to when charter limits gov’t – state vs. private action
F: Framework of the Charter
i. INTERPRETING RIGHTS

In the Vriend (CBp.722) case, Iacobucci J. “paused” to reflect on the legitimacy of the Charter. He argued:
 Legislatures freely chose to enact the Charter.
 Judges’ independence allows them to make “reasoned and principled decisions.”
 Courts should not make value judgments. (Prof. Sheppard asks how this is possible.)
 The limits on Charter rights imposed by ss.1, 33, etc. lead to a “dialogue.”
 The Charter advances a broader notion of democracy than simple majority rule.
2. This is a good summary of the various arguments in the defence of the Charter.
3. The SCC also endorsed the dialogue theory in R v. Mills (1999) (CBp.724).
The Purposive Approach

2-stage process to see if there has been an infringement of the Charter
1. Has there been an infringement of a right or freedom?
Page 16
Constitutional Law: 2004-2005
Kirk Shannon
2. Is that infringement justified?
(takes place in the framework of s.1)
**notice how this is similar to the tests in the aboriginal cases**
Purposive Approach: Examine the purpose of the charter words. To what extent is the purposive approach attached to this
charter specifically as there is S.1. Section 1 encourages a public dialogue and debate as to what is justifiable. If we did not
use section 1 so often, there would not be as much dialogue.
 Difference with Federalism cases: If one were to take a broad approach to federalism, there would likely be a lot of
overlap. As such, narrower approach is taken. With Charter, broader approach is taken and S.1 has a lot of work to do.
Look at an interest based approach. What would change if you used this instead “purposive”. Purposive approach is
grounded in legislature. Interest approach would be more directed towards the citizens. Might undermine the legitimacy of
the parl. Implications on democracy (see notes on Edmonton Journal v. Alberta below for a discussion of interests.)
1. Was there an infringement? Example Hunter v. Southam.
 Combines Investigation Act: 10(1) Subject to s.3, in any inquiry under this Act, the Director…may enter any premises
in which the Director believes there may be evidence…any may…take away…any…document that in the opinion of the
Director…may afford such evidence.
10(3) Before exercising the power conferred by ss.1…certificate from [RTP] Commission… authorizing the exercise of
such power.
Hunter v. Southam
Jurisdiction
Facts
Issues
Holding
Ratio
SCC [1984]
Under Combines Investigation Act, a search of Southam’s offices was conducted and Southam claims
their s.8 right has been infringed
What constitutes “unreasonable search and seizure”?
It depends on the purpose of said protection
Dickson: The s.8 guarantee is very vague, and the section provides no specificity. Constitution cannot
be interpreted like a statute, because it is so fundamental that it must not be restricted by frozen
interpretations (ref. to Persons Case, ‘living tree’). Must interpret specific provisions in light of the
larger objects of the document—
 the purpose of the Charter—to constrain government action and guarantee freedoms. Does
NOT grant any new powers to government.
 Must assess reasonableness in terms of the impact on the person whose rights are protected. So, have
to delineate the nature of the interests it is meant to protect. Purpose is to protect a reasonable
expectation of privacy, therefore the relevant provisions of the Act of invalid.
 General interpretation tied to the American context. The Charter “is a purposive document. Its
purpose is to guarantee and protect, within the limits of reason, the enjoyment of the rights and freedoms
it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms;
it is not in itself an authorization for governmental action.”
Note
 Here, purposive approach is actually applied by stating that the purpose of the S.8 is to limit state
power to a reasonable reason for search and seizure. Thus, ID of interests that are protected under S.8 
“to delineate the nature of the interests it (s.8) is meant to protect.”
1. “A statute defines present rights and obligations. It is easily enacted and as easily repealed. A
Constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing
framework for the legitimate exercise of governmental power, and when joined by a Bill or Charter of
rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions
cannot easily be repealed or amended. It must, therefore, be capable of growth and development over
time to meet new social, political and historical realities often unimagined by its framers.” (CBp. 738)
(note living tree)
2. He said that the Charter “is a purposive document. Its purpose is to guarantee and protect, within the
Page 17
Constitutional Law: 2004-2005
Kirk Shannon
limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain
governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for
governmental action.” NEGATIVE LIBERAL PURPOSE (support of Petter’s argument – document
designed to constrain not to authorize)
3. Dickson CJC said that before one could assess the reasonableness of an impugned law or action, one
would have to specify its purpose.
Antaki on Hunter
 What elements are the same as interpretation of federalism debates and what elements are different?
 Federalism debates looks to the past and the division of powers. Look to the intention of the
legislatures.
 Charter interpretation Looks to impact on subject. Must not look at the legislature’s perspective
but to the subject’s perspective
 There was universal consensus that the entrenchment of the Charter was intended to signal to the courts that they had to
interpret the Charter differently from the Bill of Rights. The second constraint was that the court would act judicially –
defensible on legal terms, not just a moral decision of a particular judge.
 It must be capable of growth over time, to adapt to unimagined situations by the framers of the constitution, due to
foreseeable changes in the future. [Recall “living tree” from Persons]
 Expectation 1: liberal interpretation (see above)
 Expectation 2: must be judicial. We’re not making this up – the Persons case, the living tree, etc. The Charter is a
purposive document – to guarantee and protect within the limits of reason, the rights and freedoms it enshrines. It’s
intended to restrain government action that infringes these rights. The Charter doesn’t give the power to Parliament to
effect reasonable searches and seizures. Rather, it forces the searches to be reasonable (per S.8). In order to
understand what unreasonable means, we have to understand what s.8 was designed to do. What were the interests that
s.8 was designed to protect?
Possible exam question  Please coin a phrase of interpretation for the charter that is not “purposive” and defend it.
Example could be the “interest” approach – no as it is subsumed under “purpose”
Recall the methodology:
Purpose of charter
Purpose of the provision: “interests that the section is designed to protect”

Hunter is the first major case under the Charter and it was a great case for the court because they were dealing with
limiting administrative powers. It didn’t threaten the court’s legitimacy because it wasn’t dealing with huge public
policy issues.
 Bad part was that this case was brought by a corporation – under what circumstances can corporations use the charter
and when can’t they?
Flag questions:
 In Hunter, the Court in articulating the purposive approach said 2 things they treated as similar: we have to give effect to
the purpose of the right and freedom, and the purpose of the Charter. What if the purpose of the Charter right is much
narrower than the provision? Should it always be given a broad interpretation? Ex. free speech: what is the purpose of
free speech? Should it always be given a broad and liberal interpretation?
 How helpful is the purposive approach as an objective tool rather than a rhetorical tool?
ii. DEFINING LIMITATIONS: s.1
Prescribed by law
 In interpreting rights and freedoms, you have to be constructing a moral/legal theory. You have to look at the overall
purpose of the Charter.
 2-step process (s.1 analysis):
1. was a right infringed? (Southam and Big M rules)
2. If it was, was it nonetheless a reasonable limit that is justifiable?
>> Was the limit prescribed by law?
Page 18
Constitutional Law: 2004-2005
Kirk Shannon
Oakes Test
>> Then it turns to justification, which is further subdivided into a 2-part test
a) objective  of sufficient importance or pressing and substantial to warrant violation or infringement
(worth comparing to federalism cases in the way that judges eval)
b) proportionality  (look to federalism cases comparison – Gm v. CNL
i.
rational connection ii.
minimal impairment – minimizing intrusion into protected spear  seems to privilege
dialogue b/n courts and legislature – Parl, draft clearer
legislation
iii.
proportionate effect – balancing of deleterious effects with the salutary effects.
Wording of Section 1
 “free and democratic society”  Why both? Could one be purpose (freedom) and another be process (democracy).
 Dickson includes “respect for the inherent dignity of the human person, commitment to social justice and equality,
accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political
institutions which enhance the participation of individuals and groups in society.” (CBp. 757)
 Discussion of the words “Social Justice” in the judgment  what does this include? Why was it not put into the S.1
wording itself.
 Talk of the purpose of the charter  social justice?? Dignity? There has been some sort of psychologization of the
charter. Self-help books have crept in.
 In addition to an express rule in a statute regulation, the courts have also said that the law can arise by “necessary
implication” from a statute.

What values or interests are served by having the limit prescribed by law?
 Guards against arbitrariness
 Rule of law values
 Predictability
 Freedom principle
 Notice requirement (Citizens given notice of their rights; Makes accessible to the citizenry
knowledge of what they can and can’t do)
 Limitation on broad discretion (public accountability)
R. v. Oakes
Jurisdiction
Facts
Issues
Holding
Ratio
Notes
SCC 1986
S. 8 of the Narcotics Act places a reverse onus (rebuttable) on anyone caught with drugs to prove they
did not have an intent to traffic. Oakes claimed this violated his 11(d) rights and the court agreed.
Can this limit on s.11(d) rights be upheld under s.1?
No
Dickson: S.1: (a) guarantees rights and freedoms and (b) states the exclusive justificatory criterion for
limits. So, inquiry must proceed in light of (i) fact that protected rights are being violated and (ii) those
rights are understood as central to our society’s underlying values. How do you interpret free and
democratic? Have to be guided by the values and principles that are essential to such a society, including:
respect for inherent dignity, social justice and equality, accommodation of beliefs, faith in social and
political institutions to ensure democratic participation. So, the exercise of rights that would undermine
these are subject to state limitation. The onus rests on party seeking to uphold the limit. The civil
standard or proof: preponderance of probability, rigorously applied.
Oakes Test:
2 central criterion: (1) Object must be sufficiently important (Big M) (2) means must be shown to be
demonstrably justifiable, which involves (a) means rationally connected to objective (b) minimal
impairment (c) proportionality between effects and the objective identified. The more severe the
deleterious effects, the more important the objective must be. The means here are not rationally
connected to the objective because there is no connection between possession of a small quantity of
dope and an intent to traffic.
o Court rarely finds a law fails step 1.
o Big M: no shifting purpose (only the one the legislature had).
o R v. Butler: permissible shift in emphasis, with respect to the objective.
Page 19
Constitutional Law: 2004-2005
o
o
Kirk Shannon
Rational connection and minimal impairment are closely related—and the courts favourite means
for striking laws because they can appear value neutral, but often surreptitiously invoke the 2(c)
part of the test.
Lamer in Dagenais v. CBC, added a gloss to 2(c): must be proportionality between deleterious
effects and the objective, and there must be proportionality between the deleterious and salutary
effects (esp. when the measure fails to fully achieve its objective). Courts very rarely use 2(c) to
strike: exception R v. Sharpe. Standard of Proof: make it seem a factual issue, even though it’s
supposed to be one of principle
Reference re Same-Sex Marriage
Jurisdiction
SCC [2004]
Facts
1.Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil
purposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular
or particulars, and to what extent?
2.If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to
persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms? If not, in what
particular or particulars, and to what extent?
3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and
Freedoms protect religious officials from being compelled to perform a marriage between two persons of
the same sex that is contrary to their religious beliefs?
4.Is the opposite-sex requirement for marriage for civil purposes, as established by the common law
and set out for Quebec in section 5 of the Federal Law-Civil Law Harmonization Act, No. 1, consistent
with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what
extent?
Issues
Above
Holding
Question 1: Section 1 intra vires Parl, Section 2 ultra vires Parl. Question 2
Ratio
- Changing defn of marriage is Intra vires but the protection of religious institutions from being obliged
to marry same-sex couples is ultra vires
- It is more than consistent with the charter – it flows from it.
- Could not force religious institutions to marry same-sex couples.
- There are incidental effects of the law on Provincial powers These effects, however, are incidental
and do not relate to the core of the powers over solemnization and property and civil rights. Incidental
effects of federal legislation in the provincial sphere are permissible so long as they do not relate, in pith
and substance, to a provincial head of power
- Use of “Purposive” approach  “Turning to the substance of the provision itself, we note that s. 1
embodies the government's policy stance in relation to the s. 15(1) equality concerns of same-sex
couples. This, combined with the circumstances giving rise to the Proposed Act and with the preamble
thereto, points unequivocally to a purpose which, far from violating the Charter, flows from it.” (para 43)
- The mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the
rights of another. (at para 46) S.15 analysis
- Conflicts with freedom of religion  freedom of religion will be limited and balance interests at stake
under the charter. Cannot assess conflict as this is still in the abstract.
- Per the freedom of religion, state could not compel religious institutions to perform marriages
iii: Aids to Interpretation

Dickson makes note of some of these in Big M, below.
1. Interpretive provisions in the Charter
>> the Charter includes several provisions that do not entrench a particular right, but instead affirm or highlight
certain values that should be taken into account when interpreting the entrenched rights and assessing the
justification of limits under s.1. This includes s.27 and 28. However, their impact on particular cases is difficult to
measure.
Page 20
Constitutional Law: 2004-2005
2.
3.
4.
Kirk Shannon
Parliamentary and Committee Debates
>> Lamer: “the inherent unreliability of such statements and speeches is not altered by the mere fact that they
pertain to the Charter rather than a statute. Moreover, the simple fact remains that the Charter is not the product of a
few individual public servants but of a multiplicity of individuals…How can one say with any confidence that
within this enormous multiplicity of actors…the comments of a few federal civil servants can in any way be
determinative?”
>> ‘nuff said.
Canadian Pre-Charter Jurisprudence
>> in several early judgments, the SCC signalled that decisions under the Bill of Rights had only limited relevance
in Charter cases, given the different constitutional status and structure of the Charter.
International Sources
>> Even though much of the language in the Charter’s text was new and “made in Canada”, the drafters of the
Charter had in many cases drawn on the text of other rights-protecting instruments. It made sense then that the
Canadian courts would look to judgments in other jurisdictions interpreting these rights documents. Per Dickson
CJC (CBp. 745) “I believe the charter should generally be presumed to provide protection at least as great as that
afforded by similar provisions in international human rights documents which Canada has ratified.”
The Contextual Approach
A new notion has emerged – the contextual approach. It was initially a comment by Wilson, but now it’s found favour with
the court as a whole. This was from Edmonton Journal. The court must interpret the Charter in a purposive way and a
contextual way. So what does this mean?
Edmonton Journal v. Alberta
Jurisdiction
Facts
Issues
Holding
Ratio
Dissent
(AG) [1989 SCC]
s. 30(1) of the Alberta Judicature Act prohibited publication of info arising out of matrimonial disputes.
the journal challenged it on s.2(b) grounds, and Alberta defends it on protection of privacy grounds.
All members of the court agree that it was a violation of 2(b), but the court was split 4-4 on the
justification issue. Wilson, who thought it was unjustifiable, describes a context sensitive approach to s.1
that was later adopted by the Court.
Context sensitive approach to s.1
Violation of s.2(b), not justified by s.1 using the contextual approach.
Wilson: Under both approaches, you have to ascertain the value of the right supposedly protects and the
legislative objective, and if the latter is in fact inconsistent with the former, it must be determined if it is a
reasonable limit
Abstract Approach: look at the value, in general political and historical terms, of the right as such.
Should not (a) balance a value at large with a value in context or (b) balance a private interest with a
public one (should rather be balancing 2 public interests)
Contextual Approach: recognize that rights have different values in different contexts. So, courts should
try to bring into stark relief the aspect of the right that is truly at stake in a given context and then
determine the value of that aspect. So, not expression v. privacy but expression of contents of a legal
dispute v. privacy of matrimonial dispute.
Laforest dissenting also takes a contextual approach and says in this context the right to individual privacy is more
important then the right to freedom of expression.
Note


Since the Dagenais modification of the Oakes test for justified infringement, the courts are now required
to compare the actual impact of the law on the right with the actual contribution of the law to its purpose.
Many members of the court have understood this as a call for the contextual approach.
Wilson said that it’s not helpful when discussing the values and purposes served by the right to talk about them in the
abstract. Freedom of the press is important in the abstract and so is privacy. But that doesn’t get us anywhere in this
particular circumstance to tell us how to deal with the competing rights.
What’s at stake is the right of litigants to privacy and the right of the public to an open process. You must find a more
specific way of describing the conflict – not freedom of expression in the abstract, but the right of the public to an open
court process. You must find that level of specificity. That’s what this case is about - it’s not an abstract dissertation on
freedom. It has to be located somewhere.
Page 21
Constitutional Law: 2004-2005

Kirk Shannon
And, the implication is, if and when you do that you might find that depending on the circumstances of the case, one
freedom will have more importance than another. Greater or lesser weight will be given to a particular right, given
the circumstances. In this case, freedom of the press is not as important to matrimonial disputes as it is to the privacy of
the litigants.
Is greater deference to the legislature a good thing in the following circumstances:
o Competing rights?
o When legislation is attempting to protect a socially vulnerable group?
o When legislation is attempting to balance competing interests for scarce resources?
o When government is basing its decisions upon conflicting social science or other evidence? Making
choices as to which expert opinion to rely on?
"One virtue of the contextual approach, it seems to me, is that it recognizes that a particular right or freedom may have a
different value depending on the context…It seems to be more sensitive to the dilemma posed by the particular facts and
therefore more conducive to finding a fair and just compromise between the two competing values under s.1."
1. However, it’s debatable whether this form of interpretation should be used outside of s.1.
2. In this case, the SCC struck down an Alberta law prohibiting the publication of information from matrimonial court
cases, concluding that the government could have protected privacy without such a sweeping measure.
3. Wilson J emphasized that one should not consider it a matter of balancing a private interest against a public interest,
but rather a balancing of two public interests.
Two “prongs” of the contextual approach:
 The “micro” prong considers the individual circumstances of particular litigants.
 e.g., a Criminal Code “self-defence” provision designed for barroom brawls doesn’t fit the context
of domestic abuse.
 e.g. Intersectional discrimination can fall through categories of recognized discrimination: a
landlord who would rent to a white man or a black woman but not a black man.
 The “macro” prong looks to the social context.
 It is important to use an approach to Charter interpretation that is both purposive and contextual.
Antaki on Contextual Approach
 Contextual Approach (less abstract, values in a specific context)
 Wilson J.  Value of freedom of expression is greater in a political context is greater than freedom in matrimonial
disputes.
 There is no equal weight to all of these freedoms.
G: Remedies and Enforcement
Under constitution Act, 1867, was possible for individuals to get remedy - seen in the picture of federal vs. provincial.
 Key in the dialogue b/n Parl and the courts. Here the court is actually doing something about the legislation.
Kent Roach, “Constitutional Remedies in Canada” (1994) (CBp.1264)
 Debates about remedies reflect debates about the legitimacy of judicial review. Kent Roach identifies two main
theories:
1. A corrective theory of remedies sees only a limited role for courts: repairing harm caused by government’s proven
violations of rights.
2. In a “regulating government behaviour” theory, courts can design remedies to achieve compliance with the
constitution in the future, not just to repair past wrongs. They can use all of their powers to order remedies that
may not be directly connected to proven violations, and to balance all of the interests affected by the remedy.
 It seems like a paradox that, in the name of judicial restraint, courts have been so shy about reading in new provisions
that they’d rather strike down entire laws instead.
Takkers on Enforcement
 S.52 is only place that there will be a declaration of invalidity. Section 24, seems to offer more options.
 S.24 can deal with place where law is not constitutional but administration of the law has violated rights.
Page 22
Constitutional Law: 2004-2005
Kirk Shannon
Remedies under S.24
Section 24 – No declaration of invalidity
s.24(1) allows individuals whose rights have been infringed to look ask courts for any remedy they consider “appropriate and
just in the circumstances,” including injunctions or damages.
 Can get costs or Can get interim Costs (get costs ahead of a judgment) or Damages (sometimes referred to
constitutional torts) or injunctions.
 Right has been violated under the charter (bad application) or a law passed violates the charter and
therefore violates your right
 Must have a violation of your rights. Something must have violated rights which is not necessary under
s.52
 This also has huge implications for standing – narrower standing than s.52.
 Unlike s.52(1), s.24(1) appears to give the courts wide discretion.
 s.24(1) is only for Charter rights, while s.52(1) is for all constitutional issues.
 s.24(1) is used when the court is not actually striking down the law in question (unless given a decalaratory
judgment which is rare).
 In some cases, such as Morgentaler, the person bringing the challenge is not the one affected by the law, so
s.24(1) wouldn’t help.
 Changing the way the government administers a law (e.g., in Little Sisters) would be a s.24 remedy.
Remedies under s.52
the “supremacy clause,” which can be used to read down or strike down laws, etc.
 Applied to the constitution as a whole rather than just the Charter. General provision providing for no force
and effect. Pre 1982, this was still the case but was not written. But…still has change remedies.
 There are six options for s.52(1) remedies THEY WERE DEVELOPED BY THE JUDICIARY and are applied
to the extent of the inconsistency:
1. striking down / declaring the entire law invalid
2. suspension of the declaration of invalidity  e.g. the Manitoba language ref. where all legislation
was considered unconstitutional…but suspended the declaration of invalidity.
3. partial invalidity/severance  one part of the statute that is invalid with limits
4. reading in/extension (e.g. Vriend)
o Controversial as the court seems to be acting as the legislature.
o In certain cases, legislature might not make decision but might throw to courts to make the
decision (however, the courts, smart sometimes, suspend decision for the legislature to
make the decision).
o extending reach of a statute  Not amending but rather interpreting.
5. reading down (e.g. Butler):
o Unlike severance, this just changes the interpretation, not the actual words.
o Choosing the proper interpretation. Court dictates this.
o This has a parallel in the interjurisdictional immunity doctrine in federalism cases.
6. constitutional exemptions
o Hasn’t really been applied. (See Rodriguez dissent of Lamer where he would have granter
her one.
o Even if constitutional, statute shouldn’t apply to this one individual.
o Constitutional exemptions allow exceptions to laws while upholding them in priniciple.
 They create binding precedents.
 They are a way of accommodating difference.
o It is unclear whether they are s.24(1) or s.52(1) remedies. They are individualized, but they
also involve changing the law.
o Is not really done as would be tantamount to say that statute is valid but court is not really
going to apply them
Page 23
Constitutional Law: 2004-2005
Kirk Shannon
Key case outlining how to use s.52
Schacter v. Canada
Jurisdiction Federal [1992] SCC
Facts
The federal Unemployment Insurance Act provided new mothers with 15 weeks of coverage for maternity
leave and adoptive parents with 15 weeks of parental leave, to be divided between the parents as they chose.
Schachter argued that the denial of paternity benefits discriminated in favour of adoptive parents and against
natural fathers.
Issues
1. Did the differential treatment violate s.15 equality rights?
2. What kind of remedy should the court grant?
Holding
1. Yes.
2. The court would have struck down the provision but suspended the invalidity, but in this case there was no
need to do so because Parliament had already amended the legislation.
Ratio
1. [not important for this summary]
2. Lamer CJC undertook a general discussion of remedies. Among his various points:
 The fact that reading down is more common in Charter cases than federalism cases makes sense: rights
violations are often the result of particular provisions, whereas division of powers issues usually concern
the legislation as a whole.
 The test for reading down should be whether the legislature would still have passed the legislation
without the impugned provision.
 The same basic test should be used for reading in, where the solution is to include something or someone
that the statute unconstitutionally excluded.
 In Schachter, Lamer C.J. noted that when determining whether the remedy of reading in is appropriate,
courts must have regard to the "twin guiding principles", namely:
1. [1]respect for the role of the legislature and
2. [2]respect for the purposes of the Charter….
It would be especially absurd not to allow reading in in benefits cases; otherwise the court would have to
strike down legislation designed to provide benefits to some, rather than extending them to all.


Comments


When applying s.52, courts should:
1. define the extent of the inconsistency (including using the Oakes test)
2. decide whether severance or reading in is appropriate, depending on:
a. remedial precision
b. interference with the legislative objective (This includes budgetary
considerations, although budgetary considerations cannot be used to
justify a law under s.1.)
c. the change in significance of the remaining portion (In benefits cases,
this includes the relative size of the group to be added vis-à-vis those
already included.)
d. the significance or longstanding nature of the remaining portion
3. decide whether to temporarily suspend the declaration of invalidity
 This is especially appropriate if striking down the law would pose a danger to the public or
to the rule of law.
 It may also be appropriate in cases of underinclusive benefits, where the government should
be allowed to decide whether to extend the benefits to all or cancel them altogether.
 Lamer CJC emphasizes that delaying invalidity may be more intrusive on legislatures, not
less, because it forces an issue onto the legislative agenda, forcing the legislature to act.
Applying this logic to the case, Lamer CJC held that in cases of positive rights (such as this one) reading
in/reading down and suspensions of invalidity were more likely to apply than an immediate striking down
of the legislation.
s.1 analysis is important for remedies: reason it fails s.1 is often relevant to determining remedy
This was a strange case; Schacter won on equality grounds at lower court levels, and the case only went
to the SCC on the issue of remedies. Because Parliament amended the legislation in the meantime
(allowing 10 weeks for everyone), Schacter didn’t get any special remedy (like damages); however, he
did get costs.
Page 24
Constitutional Law: 2004-2005


Kirk Shannon
Iacobucci J applied the Schacter test in the Vriend case (1998) (CBp.1277).
Reading in was also used in Miron v. Trudel (1995), to give common-law partners the same benefits as spouses.
Vriend v. Alberta  Iacobucci J.
Exclusion of “sexual Orientation” in the Alberta IRPA was deemed to be unjustified under s.1. Remedy imposed is reading
in of this ground despite the legislatures express choice to not include the ground.
Judicial Deference and Rule of Law

P. 1281 “However, as I see the matter, Charter scrutiny will always involve some interference with the legislative
will.”
 P.1281 “Therefore, the closest a court can come to repecting the legislative intention is to determine what the
legislature would likely have done if it had known that its chosen measures would be found unconstitutional.”
Dissent – Major
 P. 1284 “The responsibility of enacting legislation that accords with the rights guaranteed by the Charter rests with
the legislature. Except in the clearest of cases, courts should not dictate how underinclusive legislation must be
amended.”
 P. 1284 “Deference and respect for the role of the legislature come into play in determining how unconstitutional
legislation will be amended where various means are available.”
 Would have ordered declaration of invalidity that was suspended for one year to allow legislature to effect changes.
M. v. H.  Iacobucci J.
Definition of “spouse” was deemed underinclusive as did not include same-sex couples. Thus was considered a violation of
s.15 that was not justified. Remedy taken was striking down legislation subject to six-month delayed declaration of invalidity.
Dialogue theory
 Decision in this case was to declare the law of no force and effect with suspended invalidity b/c, the changing of the
definition would affect other parts of the legislation which did not violate the charter. The authors of the CCL
(p.1287) state, “Within a six-month period contemplated in M. v. H., the Ontario Legislaturein fact introduced
legislation amending over 60 pieces of legislation in response to M. v. H. This legislation not, however, define samesex couples as “spouses” but rather as “same-sex partners”.
Reading down as interpretive and a remedy in both Federalism and Charter.
 CCL notes that Reading Down was used in McKay v. The Queen with respect to Federal election signs. Also can be
used as an interpretive technique such as in R. v. Butler where the legislation regarding obscenity was read down in
interpretation thereby avoiding a finding of a Charter violation.
Note on Hunter v. Southam  Dickson
Judicial Deference
 (p. 1288) “While the courts are guardians of the Constitution and of individuals’ rights under it, it is the
Legislature’s responsibility to enact legislation the embodies appropriate safeguards to comply with the
Constitution’s requirements. It should not fall to the courts to fill in the details that will render legislative lacunae
constitutional.”
Little Sisters Book and Art Emporium v. Canada
Jurisdiction British Columbia [2000] SCC
Facts
Little Sisters was a queer bookshop. Canada Customs regularly held up their parcels at the US border. They
challenged the customs legislation that proibited importing obscene publications. (Obscenity here was subject
to the definition in s.163(8) of the Criminal Code.)
Issues
1. Did the customs legislation, as applied, unjustifiably infringe on Little Sisters’ freedom of expression?
2. Did the customs legislation per se unjustifiably infringe on Little Sisters’ freedom of expression?
Holding
1. Yes; 2. No.
Ratio
1. Customs officials showed a pattern of targeting Little Sisters’ shipments. Customs officers were not
properly trained to identify obscenity, nor were there any formal guidelines or procedures.
2. Binnie J also rejected arguments that the customs procedure was too cumbersome to be capable of
being applied fairly. He just ordered the customs officials to stop being discriminatory. No remedy
under s.52 but a remedy under s.24
Iacobucci dissented on this last point. He would have struck down the legislation, although he would have
Page 25
Constitutional Law: 2004-2005
Kirk Shannon
suspended the invalidity for 18 months. (This would have given Parliament time to remedy the situation.)
Would have remedied it under s.52
H: Administrative Tribunals and Remedies
Remember, admin tribunals make no binding legal precedent  ie only for the parties at hand.
Who can offer Charter Remedies???
S.24 specifies “Competent Jurisdiction”. This has been interpreted as  A court must have jurisdiction, independent of the
Charter, over
i.
the parties,
ii.
the subject matter and
iii.
the remedy sought.
What about Admin Tribunals??  Debate
o In Weber v. Ontario Hydro narrow majority said Admin Tribunals CANNOT be a court of competent
jurisdiction for Charter challenges. It will satisfy the first two requirements (above) but will have problems
with the 3rd.
o Could award damages for a violation of a charter right
Under s.52(1), Admin tribunals CAN declare a law to be of no force or effect. Tribunal with power to enforce law must be
able to eval constitutionality of a law…..but….limited to tribunals which are clearly authorized to deal with questions of law.
 There is continuous debate here. Some say admin tribunals lack the necessary expertise to be able to make charter based
decisions.
Note that Judicial Review is exceptional. General rule is that people will go to admin tribunals and not to court. Why?
 When laws are passed at Parl, Bills are scrutinized by Justice and the AT. Therefore, it is exceptional that a Bill
would go through Parl and still would not comply with the Charter.
 Often not b/c the act itself is against the charter – most often it is b/c that person interpreting the act reads it in an
unconstitutional way.
Sectioning of the adjudicature.
Why is it not clear as to why there are limits on federal tribunals?
 As per s.96 – not clear
 Per hogg. Federal tribunals are not limited but provincial tribunals are  therefore comes back to division of
powers rather than the separation of powers. School of thought number one  rational is federalism. Emphasises
the lesser importance of separation of powers.
 Letterman says otherwise. He is part of school 2 which emphasizes the separation of powers.
2 Avenues for claiming a remedy  s.52 and s.24
Note that a problem can be seen for admin tribunals to evaluate the law on charter issues.
 Interferes with separation of powers. No employment standard. Not necessarily members of the bar, terms of
employement, lack of independence
 On the other hand Laws that are unconstit are of no force or effect – period – not “as determined by the judiciary”.
 As per s.24 – what is a court of competent jurisdiction?
o Does say ‘court’ – does not say what competent is.
S.52  Only invalidity of laws that are contrary to the constitution and the charter
S.24  Only the Charter.
Administrative Tribunals and Remedies
When you review a decision, you annul it  the decision has no legal existence after annulled; when you appeal it, you annul
the law and then institute a new one. Review = don’t look to see if it is a good or bad legislation, just see if w/in jurisdiction.
Page 26
Constitutional Law: 2004-2005
Kirk Shannon
What is an Administrative tribunal?
Can have a federal or provincial tribunal
Have adjudicators (they don’t have same independence as superior crt judges) Adjudicator in these and Inferior
Courts have more intimate rel w/ gov’t
Less guarantees of independence
Admin and inferior have ltd jurisdiction
More about a type of exercise (ex. one that grants license)
What is an inferior court?
Don’t have same guarantees as superior
Don’t have general original jurisdiction (more ltd.)
Function more as a court than admin tribunals
Reasons for having Admin Tribunals

More efficient

Specialized: legitimacy is often said to be based on their expertise.

Less expensive, less formal: economies o fscale (they do the same thing over and over)

as funcitons of gov’t grew, the minister couldn’t look at files all day, created administrative bodies.
Realize that judicial review is exceptional (general rule is that disputes will be resolved at the general level). Thus, the debate
about the legitimacy of judicial should be put in perspective (most disputes don’t go to court)
Do these guarantees affect only prov admin tribunal  unclear. adjudicator provisions don’t specify any kind of status for
federally appointed ones (?)
Two schools of thought re: how to interpret adjudicature provisions
(1) Hogg says fed created tribunals are not ltd, and thus the rationale is federalism not separtion of powers – relative
unimportance of sep of powers in cda;
(2) (2) Lederman takes the opposite stance and says that adjudicature provisions affected both federal and provincially
appointed tribunals.
Powers of tribunals:
 There have been 2 avenue for claiming remedies from the charter in front of an administrative tribunal
 This problem/debate began in the early 90s. the 2 avenues available (s.24 and s.52)
Remedies under S.24
S.24= refers only to the Charter.
 another consequence of breech of charter, is found in s.24: judges should provide a remedy for the wrong that has been
committed. The problem here in s.24 are the words “court of competent jurisdiction”; note: while it doesn’t say “superior
court” it does say “court”; but prob = “competent jurisdiction is not defined.
Weber v. Ontario Hydro
Jurisdiction
Facts
Issues
Holding
Ratio
Strong
Dissent of 3
SCC
Employee sick and staying home, hydro hired people to check up on him to see if he was really sick or if
he was really sick. The employee discovered what they had done and claimed that his right to be free of
search and seizure (s.7 and s.8). He was bound by collective agreement of that company, whereby any
disputes b/w emp’er/ee had to be adjudicated by a private tribunal. Weber tried to claim remedy under
s.24 (not trying to declare any law unconstitutional (just trying to get a remedy).
Can the administrative tribunal qualify as a court of competent jurisdiction?
No, unless it can satisfy the criteria below
SCC said it can if it wields jurisdiction over (i) the individuals (ii) the subject matter (iii) the remedies
sought.
o Court believes it is possible for adminiatrative tribunals to fulfill first two but might have
problem with #3.
Not b/c there has been a breech of a charter right that the court can give a remedy under the Charter
Page 27
Constitutional Law: 2004-2005
Kirk Shannon
Court of competent jurisdiction?  this is not the core q for the court.
In Weber we see many other qs:

Is it the proper function of the arbitrator to award damages?
o The statute giving power to the adjudicator implied that it had power to adjudicate employer/ee relations.

SCC decides “yes” b/c of principle of “exhaustion”  b/f you go to superior crt you must first exhaust all other
avenues of appeal. You start climbing admin ladder until you get to superior crt.
o This is not an absolute rule. Some exceptions: if the statute is believed to be unconstitutional, there is no
point to go through all the lower rungs.
NB to realize that this case was a collective agreement, and therefore not really a contract (if was a K, the Charter wouldn’t
apply)
Morin v. Canada
Jurisdiction
Facts
Issues
Holding
Ratio
Notes
SCC
Tribunal was not bound to the same rules regarding evidence obtained illegally according to statute.
Does the parole board qualify as a court of competent jurisdiction?
NO
Here, tribunal was considered not to be a court of competent jurisdiction and could therefore take
account of info gathered illegally.
o Supports idea that tribunals are not courts of competent jurisdiction.
There are some like hogg that say that Morin confirms the general rule that was announced in Weber (b/c
no jurisdiction over appropriate remedy.)
Remedies Under s.52
S.52= refers to entire constitution
Problem of someone invoking a charter claim in front of a tribunal  the executive could be seen as doing the job of the
judiciary  they might have interest in not finding law unconstitutional (but if not, the plaintiffs can appeal it to a court);
o but if they do find it unconstitutional: there is no minimal std of independence/job security, etc; so there is a definite
problem when members of admin tribunals think a law is unconstitutional.
What is the legal counterpart of the separation of powers: they are of no force or effect. Thus on the one hand we have
problem of separation of powers (no independence); but on the other hand we know unconstitutional laws are of no force or
effect
The Trilogy of Cases that tended to resolve problem of administration.
1) Douglas College (1990)
Collective agreement b/w crown agency and a union  mandated age of retirement.
Claim that this was age discrimination (s.15). Had to argue that the agreement was unconstitutional. (diff than Weber as was
a s.52 claim)
 Easy for SCC to solve  adjudicator was given clear power via statute to decide on charter cases.
2) Cutty Chase???
We are talking about the validity of legislation (The Labour Relations Act) giving power to individuals to negotiate.
 People in the agricultural sector were not given the right to negotiate collective agreements.
 Tribunal was given a clear delegation of power via statute (arbitrator could determine all questions of law)
 Court decided that arbitrator could declare it unconstitutional BUT could not issue a “binding legal precedent” if
you take issue to court, and you are unhappy, you cannot re-litigate it. (i.e. it is binding on the parties who litigated
it, if you are litigating the same set of facts)
 SCC is saying here then that it is possible for them to go to court afterwards and argue the issue there.  This
doesn’t really mean anything, since you can always have an adjudicator’s decision reviewed.
 52(1) says any unconstitutional law is of no force and effect (not just b/w the parties, but to public at large)  but
here court is saying only invalid b/w the two parties when decided by tribunal.
3)Tetrault (1991)
Person who wanted to apply for UI, but she was above the age stipulated in Act, she argued act was unconstitutional
 There was a (i) Board of Referees, next step was (ii) umpire, then (iii) Superior Court.
 At stage (i), Tetrault Gadorie saw that the Act was unconstitutional, so sent it directly to step (iii).
Page 28
Constitutional Law: 2004-2005
Cooper
Jurisdiction
Facts
Issues
Holding
Ratio
Note
Kirk Shannon
SCC 1996
re: age of retirement for commercial airline pilots. These pilots wanted to work longer than age set out in
collective agreement
 To go to HR tribunal, two steps. (1) commission, (2) tribunal.
 Problem = commission did not have jurisdiction over retirement issues that are norms for the
industry.
 B/c step 1 was rejected, they could not go to tribunal.
 Could have gone directly to Court and argue that it was unconstitutional. Instead argued that
the HR commission should re-interpret or re-write their statute that prohibited them from
hearing the case. (benefits from going directly to tribunal = cheaper, don’t have to pay costs if
you lose, etc, so wanted to go b/f the commission rather than the court)
Can an admin tribunal apply s.52.
NO
This was a divisive case.
 Part of SCC (dubé) said s.52 applies across the board; Lamer said the opposite -admin tribunals
are not sup crts, so the most they can do is interpret their statute in accordance w/ the charter.
Majority, la forest: tribunal does not have the authority to apply the charter:

No power to apply the law (as in the other cases)

Commission did not have expertise to deal w/ constitutional issues

this decision does not disenfranchise people bc they can go to court to find remedy

the tribunal does not fxn like a court  it is not adversarial.
Many are critical of this decision. Hogg said it was shocking that the commission did not at least
develop some sort of discussion of the argument. It makes court cases easier to handle when they have
previously been argued/screened.
Nova Scotia Worker’s Compensation Board v. Martin
Jurisdiction
SCC [2003]
Facts
Two workers suffered from chronic back pain for work-related injuries and were denied permanent
compensate from the Board. Chronic back pain was not included in two regulations that outlined the
scope of the compensation. Chronic back pain was said to be largely psychosocial and was impossible to
prove causation with the injury.
Issues
Does the exclusion of chronic back pain violate s.15(1) of the Charter? Does an Admin tribunal have the
jurisdiction to here a charter challenge?
Holding
Yes, Yes
Ratio
 Gonthier: From the principle of constitutional supremacy also flows, as a practical corollary,
the Idea that Canadians should be entitled to assert the rights and freedoms that the Constitution
guarantees them in the most accessible forum available, without the need for parallel
proceedings before the courts
 Does not undermine the role of courts as such a decision by an administrative tribunal is not
binding on courts or that tribunal.
 (39) the relevant question in each case is not whether the terms of the express grant of
jurisdiction are sufficiently broad to encompass the Charter itself, but rather whether the
express grant of jurisdiction confers upon the tribunal the power to decide questions of law
arising under the challenged provision, in which case the tribunal will be presumed to have
jurisdiction to decide the constitutional validity of that provision.
 W/out express grant of jurisdiction, must look at whether there is an implied grant of power to
decide questions of law.
The fact that the empowering statute says they have power to determine law is NOT determinate. 
there is a test:
1. Does tribunal have explicit/express power to apply the law?
2. If yes, there is a presumption that the trib has the power to apply the charter (i.e. shift of burden
of proof)
Page 29
Constitutional Law: 2004-2005
Kirk Shannon
This means that there are some tribunals that can apply the law but not the Charter
2 step test  Express or implied power to apply the law. 2- Presumption to apply the charter.
- If apply this to the Cooper case then we see that the commission should have been able to apply the
charter.
Lambert on Martin
 Gonthier arguing that the Charter should be applied across the board.
Notes
Therefore, can infer that if an admin tribunal can apply the charter then it can do all these things.
 Lambert thinks reading in and reading down is the crux of the issue. If these two are interpretation then this seems
ok. But…..maybe should not be able to go so far as to determine the law to be of no force and effect.
Therefore there are Tribunals that
 Can apply the law
 Cannot apply the law
 Can apply the law and charter
 Cannot apply the charter (e.g. a federal labour tribunal)
 Questions of legitimacy issues  is this discussion of legimacy problematic. If an admin tribunal is reading in. Does it
only exist when courts overrule?
I: The Ethos of Charter Interpretation
Heart of Reasonableness: The ethos of charter interpretation.
 What is a free and Democratic Society.
 What is a free and democratic society
 What is justifiable.
 Dickson speaks of such values. This came up with social justice and pop-psychology and emotion. Emotions,
according to Antaki, can be included but pop-psychology should not be included.
 Emotions and feelings entering into the discussion as the Charter is a document the focuses on the individual. Does
the language of how a woman feels enter into the cases of pornography? Is same-sex marriage, in some way, about
feelings.
 There are dangers of a progressive understand of the law. Some of these have to do with psychologizing or
moralizing.
 Social justice
 Starts with social revolution (how to deal with the poor) in French Revolution, Welfare state, l’etat providence
(welfare state en francais),
 Is this important in a free and demo sociery?? Antaki leaves this open.
 As well, looked at social dignity
 Identity politics.
 Being provided for is not enough
 People need to be recognized as full participants of the state
 Feminist legal theory
 Same-sex and slippery slopes
 Polygamy brought up the slippery slope argument
 Did not address the question of institutional competence. Should courts be the ones to do this.
 Issues did not address
 Judicial Deference
 Budgetary priorities as set by the courts
 Correcting the past. Must courts think through impact on the future.
 Suspension of declaration of invalidity.
Page 30
Constitutional Law: 2004-2005
Kirk Shannon
J: The Application of the Charter: State Action
S.32 bound to Parliament, legislature and government action but not private actors.
s.32(1) of the Charter states that it applies to:
(a) “to the Parliament and government of Canada…”
(b) “to the legislature and government of each province…”
The Charter protects individuals:
 Citizens
 other persons in Canada
 sometimes corporations, depending on the text of the Charter and jurisprudence.
Corporations are not directly protected by ss.2(a), 7 (sort of) or 15, but they can invoke these sections when someone else’s
right is being infringed.
The Charter does not apply to the private sphere, only to government.
 However, the Charter (especially equality rights) applies to the text of federal and provincial human rights
legislation, which does apply to the private sphere, and thus the Charter can apply indirectly to the private
sphere (as in McKinney v. University of Guelph, or Vriend v. Albera).
 Human rights codes have quasi-constitutional status because they implicate rights that are considered important to
society. (This is a new in-between category that the courts have created.)
Antaki: Application: does the charter presuppose a distinction between state and socity and hoe does it do so? Is
there a requirement that there be state action? What is the line between private and public? Publicall funded
institututions. Provinicial human rights code? How is descrimination delat with in the private sector.
Charter does not apply to Judicary
Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd.
Jurisdiction British Columbia [1986] SCC
Facts
Striking employees from Purolator picketed outside Dolphin because Dolphin had contracts with Purolator
and was working for it during the strike. Dolphin got an injunction to stop the “secondary” picketing, based
on the common law tort of inducing breach of contract.
Issues
Was the injunction against secondary picketing constitutional?
Holding
Yes.
Ratio
 The court held that picketing was a form of expression, but that limits on secondary picketing could be
justified.
 However, this was not a Charter case.
 McIntyre J held that the Charter was not applicable to private litigation. According to McIntyre J, the
judiciary did not fall within the meaning of “government” under s.32. McIntyre J held that the Charter
only applies to common law rules insofar as executive or administrative bodies act on them.
 However, the Charter does not apply to common law rules or judicial decisions in private litigation.
(Nevertheless, the judiciary “ought to apply and develop the principles of the common law in a manner
consistent with the fundamental values enshrined in the Constitution.”)
Comments
The idea that the Charter should not apply to the judiciary has been criticized as incoherent.
 Two later cases held that the Charter did apply to the courts, because they were enforcing statutes.
o Therefore the only exception to the Charter’s application to courts is when they are using common law
rules to settle disputes between private parties.
--Dolphin Delivery
 Exclusion of judiciary. Had not done this, would be making applicable to private actor through the backdoor
 Applies to exec and legislatures
 Does not apply to common law…..but…only applies so far as the government acts on the common law or enables a
gov’t action.
 Claim that Charter does not apply to judges has been tempered in subsequent cases
Page 31
Constitutional Law: 2004-2005
Kirk Shannon
There are three important categories of application:
NOTES ON GOVT ACTION V. INACTION: FALSE PRESUMPTION THAT CHARTER ONLY APPLIES TO
NEGATIVE RIGHTS
CCL page 786: “It is commonly asseter that the charter only applies to govt action. This is true, but the govt can also aply
to govt inaction. The rights and freedoms set out in the charter impose a mix of positive and negative obligations on
governments. The Charter is not concerned purely with safeguarding the negative liberty of individual from the state. To
the extent that the charter imposes positive obligations on govts, it must also apply to govt inaction. For example, the right
to minority language educational facilities in s. 23, or the right to an interpreter in s. 14, would be meaningless if the charter
did not apply to govt failure to take steps in order to implement these rights. For this reason the, the text of s. 32 does not
refer to govt action. Rather it says the Charter Applies to govts ‘in respect of all matters within [their] authority.’”
Anataki comments: Is petter right or wrong? Is charter really a 19 th century document. Look at dolphin case. Petter
says charter is 19th century: argument rest on distinction between public and private and negative vs positive rights. To
what extent do action and inactions become reducible to positive vs negative rights? SO, by s32 omitting action and
inaction does that go against Petter’s claim.
Look at Wilson’s dissent Blencoe. She rejects the minimal state approach. Engagement with Petter argument. Wislon
directly responding to Petter. Saying he is wrong and that the charter is not built on minimal state notion like in the USA.
1. governmental actors
 entities controlled by government – or, exercising governmental functions.
McKinney v. University of Guelph
Jurisdiction Ontario [1990] SCC
Facts
Several Ontario universities forced their employees to retire at age 65. Employees challenged this on the
basis that it was age discrimination and violated equality rights. The Ontario Human Rights Code’s rules on
age discrimination in employment only protected people between the ages of 18 and 65.
Issues
1. Could the Charter apply to the actions of universities?
2. Was the impugned provision Ontario Human Rights Code unconstitutional?
Holding
1. No; 2. No.
Ratio
1. The Charter does not apply to universities. It’s true that most universities are creatures of statute, and they
receive most of their funding from the government; it is also true that they perform an important public
function.
o However, they have independent governing structures, and their decisions with regard to hiring and
contracts are completely independent. What matters is the degree of government control (or
institutional agency).
2. This provision of the OHRC violated s.15, but was justified under s.1.
Wilson’s
Wilson rejected the concept of the American notion of the minimal state on which she saw La forest’s
dissent
decision resting. She said Canada has a different attitude to government and its role then does the united
states. She instead opted for a broader view of govt that is :sensitive… to the wide variety of role roles the
that the govt has come to play in our society and the need to ensure that in all these roles it abides by the
constitutional norms set out in the charter.” Wilson establishes a 3 tests in order to establish what kinds of
bodies should be constrained by charter:
1. The “control test: does the exec, leg, or admin branch of govt exercise control over the entity in
question?
2. The “govt function” test: does the entity perform a traditional or modern govt function?
3. The “statutory authority and public interest” test: is the entity one that acts pursuant to statutory
authority specifically granted to it to enable it to further an objective that govt seeks to promote in
the broader public interest
She argued that universities satisfied all 3 tests.
Comments
The idea of an “important public function” could probably change radically over the years.
Page 32
Constitutional Law: 2004-2005
Kirk Shannon
Class on McKinney v. U of Guelph
o P. 788  “The mere fact that an entity is a creature of statute and has been given the legal attributes of a natural
person is in no way sufficient to make its actions subject to the Charter.”
o Fate of university is in hands of government - this, per La Forest is not enough.
o Wilson J’s dissent outlines a three step test at CBp. 791 Unsure as to how much of this was adopted by the majority.
I am thinking that, not much. She also comes to a different conclusion than the majority.





In the case of Douglas/Kwantlen Faculty Association v. Douglas College, [1990] SCC (CBp.792), the SCC
distinguished McKinney and found that the Charter did apply to community colleges—in large part because colleges
have a much less autonomous structure than universities.
In the case of Lavigne v. OPSEU, [1991] SCC (CBp.794), the court applied the Douglas College decision to a
question surrounding a collective agreement between a community college and its employees’ union. The court
rejected the argument that the Charter applied only to the college’s regulatory activities and not to its contractual
activites, claiming that this rested on an outdated understanding of government.
The SCC has never ruled on whether the Charter applies to school boards, although it assumed this point without
discussing it in R. v. M. (M.R.), [1998] 3 SCR 393 (CBp. 793).
Private corporations are also creatures of statute, but they are not controlled by the government.
Charter applies to entities exercising governmental functions
Godbout v. Longueuil
Jurisdiction Quebec SCC [1997] CBp. 795
Facts
The City of Longueuil required all new permanent city employees to reside in the city. Godbout was fired
from her job when she moved to a neighbouring city.
Issues
1. Did the city’s resolution violate privacy rights?
2. Could the Charter apply to the actions of a municipality?
Holding
1. Yes; 2. Yes.
Ratio
1. [Not important for this summary]
2. Although municipalities have an independent structure, (i.e., not provincially appointed), La Forest J
found that municipalities were governmental entities exercising governmental functions, based on the fact
that
1. they were publicly elected
2. they have the power to tax
3. they can make and enforce laws
4. they derive their power from provinces
The fourth criterion is important, because governments should not be allowed to delegate the infringement of
rights to entities they have created.
Moreover, La Forest J found that all of a municipality’s powers (public and “private”) are governmental.
 What about Aboriginal governments: band councils, etc?
 What about law societies?
2. governmental acts
 Entities implementing government programs
 Eldridge v. British Columbia (A.-G.), [1997] 3 SCR 624 (CBp.801) (see p.59): A hospital was found
to be bound by the Charter, because it was “implementing a specific governmental policy or program.”
(But this is controversial.)
o La Forest J’s comments on CBp.801 are a good summary of this chapter.
o La Forest J began by repeating the rule from Slaight Communications Inc. v. Davidson,
[1989] 1 SCR 1038, that “since legislatures may not enact laws that infringe the Charter, they
cannot authorize or empower another person or entity to do so.” Although hospitals are
private entities, they work to implement a “specific government program or policy,” i.e., the
delivery of medical services.
 In the Blencoe case, the SCC found that the B.C. Human Rights Commission was bound by the
Charter.
Page 33
Constitutional Law: 2004-2005
Kirk Shannon
3. government inaction
 In the Vriend (CBp.805) case, the Alberta government argued that it couldn’t be faulted for failing to
protect gays & lesbians, because it hadn’t positively interfered with anyone’s rights.
o However, one can see how this position could be challenged on equality grounds.
o The SCC decided that s.32(1) does not require a positive act for the Charter to be invoked. The
terms “all matters within the authority of the legislature” includes government inaction.
o This seems to indicate a shift toward positive rights—does it give the government an obligation
to address systemic inequalities?
o Charter applies to government omissions.

The case of Dunmore v. Ontario (A.G.), 2001 SCC 94 (CBp.807) was the SCC’s strongest statement in
favour of requiring government action.
o In this case, Ontario labour legislation excluded agricultural workers from the right to form a
trade union and bargain collectively.
o Bastarache J. decided this case on the basis of freedom of association, and suggested that the
government did have a positive obligation to facilitate the freedom of association of vulnerable
groups.
o However, Bastarache J distinguished between “legislative silence” and “underinclusive
legislation.”
4. Application of the Charter to Courts and Common Law
Hill v. Scientology
Jurisdiction Ontario SCC [1995]
Facts
Crown attorney brings an action against the Church of Scientology for defamation (a common law tort – oral
(slander) or written (libel) statements causing harm to reputation). Church argued free speech. The common
law tort of defamation infringes my Charter rights of free speech.
Issues
Is the common law of defamation consistent subject charter scrutiny
Holding
SCC upheld the common law tort of defamation. Of interest to us is the reasoning:
Ratio
Cory J displays a modern realistic sense of the role of the courts in shaping the common law. Courts should
be more restrained in re-interpreting the common law in light of the Charter than they would be in reviewing
legislation under the Charter. Far-reaching changes to the common law should be left to the legislature –
courts have always been reluctant to make radical changes to the common law. The balancing of interests
should be more flexible in the common law than under s.1. We should be more rigorous in upholding
reputation than under the Charter.
Comments
Does this make sense? Should the courts apply a separate standard in the common law rather than in
legislation? Underlying Cory’s language is a distinction between rights and duties
 So Cory distinguishes between constitutional rights and constitutional values. For Cory J, the
distinction between rights and values have implications for how the court approaches the common
law in light of the Charter.
If Dolphin arose today on the same facts, would it be decided in the same way? We already know the answer from the
Pepsi case. ((RWDSU, Local 558 v. Pepsi-Cola [2002 SCC])). The facts are virtually indistinguishable from Dolphin:
lawful strike, secondary picketing at retail outlets that sell Pepsi.
Dolphin found that the common law bars secondary picketing and therefore upheld an objection barring secondary
picketing. But in Pepsi, the court felt the need to interpret common law in light of Charter values. Here, McLachlin CJ
refashioned the common law. Said that the common law needs to be interpreted in light of the Charter and therefore
secondary picketing is prima facie lawful and unless the secondary picketing is harmful or gives rise to a tort or a criminal
violation. However, picketing homes amounted to the tort of intimidation and private nuisance.
How do we explain the difference between Pepsi and Dolphin? In 2 complementary ways:
Dolphin was an early case – post that case there was 16 years of case law so that when they arrived at Pepsi there was a
range of jurisprudence and principle to use.
The other way to look at it is the court maturing in its role in interpreting the Charter – it’s more secure in crafting creative
decisions to give effect to Charter values.
Page 34
Constitutional Law: 2004-2005
Kirk Shannon
State of Law on Application of the Charter
 Parliamentary Priviledge is not subject to the Charter.
-- Government action and inaction
 If a gov’t chooses to act, then better not violate. Not clear that a gov’t NEEDS to act.
-- Private actors acting in a gov’tal way
Is there still a manner of saying, yes, it is gov’t action, but Charter does not apply
 Similar in Spending power cases
 Rejected mostly
 See Lavigne Case.
K: Limitations on Charter Rights
There are four major kinds of limitations on Charter rights:
1. limits in terms of how we define rights: what we mean by “freedom of conscience,” etc.
2. “internal” limits within the text of each individual right:
o e.g. s.7: “…except in accordance with the principles of fundamental justice.”
o e.g. s.8: “…unreasonable…”
o e.g. s.15(2): affirmative action programs
3. s.1: the “reasonable limits” provision, where the balancing is explicit
o This clause was modeled on international human rights instruments and the European Convention on Human
Rights.
o The US constitution has no such feature, but judges have “read in” limits.
o The South African constitution has a similar article, and has followed the Canadian jurisprudence.
4. s.33: the “override” provision or “notwithstanding clause”
o This is now seen as politically unacceptable.
Section 1  Justified Limit
Because of s.1, the SCC has used a two-step framework for all Charter analysis. (This can vary depending on whether there
are internal limits to the right in question.)
1. What is the definition of the right or freedom, and has the government violated it?
2. Is this violation:
o prescribed by law? (formal requirement)
o justified? (substantive requirement)
i)
Prescribed by law”: courts seem to jump over this step very quickly.
 The idea here is accessibility and precision: If a government is planning to violate rights, it should say so precisely
enough that citizens can plan their behaviour around it.
 There could be many different definitions of what is “prescribed by law.”
 Usually discussed under minimal impairment step of Oakes test.
o In the Therens case (1985) (CBp.749), the SCC found that police discretion to order breathalyzer tests
without informing a suspect of his right to instruct and retain counsel was not a limit “prescribed by law.”
The police were acting pursuant to statutory authority, but their discretion was not constrained by any clear
legal rule.
o R. v. Nova Scotia Pharmaceutical Society discusses the doctrine of vagueness founded in the rule of law
 A law which is too vague (see test for vagueness at CBp. 751)
R v. Nova Scotia Pharmaceutical
Jurisdiction
Facts
Issues
Holding
Ratio
751 part one of s1: prescribed by law
Accused charged under combines investigation Act with conspiring to lessen competition unduly in the sale
of prescription drugs. They moved to quash indictment, arguing that the provision violated s. 7 on grounds
of “vaqueness.”
Is the provision not valid on the grounds that it is to vague and thus not in accordance with the princibles of
“fundemental justice” pursuant to s. 7? Is the enactment so vague as not to satisfy the requirement that a
limitation on charter rights be “prescribed by law” pursuant to s. 1 of the Charter?
No. No.
Gonthier: “A law must not be so devoid of precesion in its content that a conviction will automatically flow
Page 35
Constitutional Law: 2004-2005
Kirk Shannon
from the decision to prosecute. Such is the crux of the concern for limitation of enforcement discretion (top
of 754).” “Language is not the exact tool come may think it is. It cannot be argued that an enactment can
and must provide enough guidance to predict the legal consequences of any given course of conduct in a
advance. All it can do is enunciate some boundaries, which create an area of risk… [A vague provision]
does not sufficiently delineate any area of risk, and can neither provide fair notice to the citizen nor a
limitation of enforcement discretion.” (page 755)
Argues that need to move beyong non-interventionist approach which surrounded development of the rule of
law. Modern welfare state attempts to realize social objectives which sometimes conflict with the individual.
“the modern State, while still acting as an enforcer, assumes more and more of an arbitration role.”
(page 755).
Comments
“One must be wheary of the doctrine of vaguensess to prevent or impede state action in furtherance of
valid social objectives. A delicante balance must be maintained between societal interests and
individual rights." (Argument against Petter)
Gonthier’s discussion in NS Pharmaceutical is important because he is saying that courts should be wary of
using tools like vagueness to hinder legislators’ pursuits. Very few cases turn on this branch of s.1 (the
prescribed by law branch). To the extent that courts are concerned with vagueness, it typically arises in the
second area of s.1 analysis. You will typically find it in the minimal impairment part.
ii) Justified in a Free and…..
Most of the debate centres on the substantive aspects of the limitation.
o It is good that the Charter is honest about the fact that rights are not absolute.However, some, such as Dworkin, have
argued that rights are not being taken seriously if they can be trumped by an appeal to the general welfare.
The Oakes test addressed this concern by saying that the words “free and democratic society” set the standard for
justification.
 R. v. Oakes, [1986] 1 SCR 103 (CBp.756) centred around a provision in the Narcotics Control Act which reversed
the burden of proof: if the defendant was found with a small amount of drugs, she or he wound be presumed guilty
of drug trafficking. Oakes challenged this under s.11(d). The court agreed that this provision of the Narcotics
Control Act did violate s.11(d), and went on to determine whether this violation was justified under s.1.
 Dickson CJC glossed the words “free and democratic society” to include:
 inherent dignity of the human person
 social justice and equality
 variety of beliefs
 respect for cultural and group identity
 respect for social and political institutions which enhance participation
 Dickson CJC said that the onus of s.1 is on the party trying to justify the infringement (i.e., the government)
 The standard of proof for this should be the “balance of probabilities.”
OAKES TEST (Standard of proof is “balance of probabilities” not criminal standard)
Dickson CJC set out two criteria for justification:
Must be prescribed by law
1. There should be a sufficiently important, “pressing and substantial” objective.
 It may be unclear whether the court should look at the objective of the legislation as a whole, or of the
specific provision (or omission).
 Courts rarely use this stage of the Oakes test to say that legislation can’t be upheld (although they did
in Vriend, and in Big M Drug Mart).
 The objective must also be an admissible one, and not “shifting” (see Big M Drug Mart and Butler).
(See p. 980 and p. 974)
 There is a controversy over to what extent budgetary considerations can be a valid objective (see
NFLD v. NAPE)
2. The means must be “reasonable and demonstrably justified” (the “proportionality” test):
 General: In expression cases, take into consideration the “value” of the expression as in Butler at
Page 36
Constitutional Law: 2004-2005
Kirk Shannon
CBp. 976
a) The means must be “rationally connected” to the objective.
 Courts rarely use this test to strike down legislation, although this is what they used in the Oakes
case itself.
 CCL authors say this includes some sort of effectiveness threshold – reasonably advance the
pressing and substantial purpose (see CBp. 760)
 As in Irwin Toy and Butler “The court made it clear that in choosing its mode of intervention, it is
sufficient that Parl had a reasonable basis…” (Butler 977)
 Causal link not needed as in Keegstra (see Butler 977)
b) The means must impair the right in question “as little as possible” (“minimum impairment” test)
 This is the most frequent basis for striking down legislation.
 Of course, it can’t be interpreted strictly; one can almost always imagine some law that would
infringe rights even less. In Edwards Books, Dickson CJC said that a law should impair rights “as
little as reasonably possible.”
c) There must be a balance between the negative effects and the objectives or between the deleterious
effects and the salutary affects as per Dagenais.
 This is a general, residual consideration of proportionality, and it doesn’t have much effect on the
analysis.
 Hogg thinks that it’s redundant: if one has answered yes to 1, 2a, and 2b, of course one will
answer yes to proportionality.
 In Dagenais v. CBC (1984) (CBp.671), the SCC said that one must also consider the salutary
effects.
 In Bulter there is a look to the value of expression in this case as the contextual approach. See
p. 979.
Some elements of the Oakes test seem to require judges to assess the effectiveness of policies.
 Dickson CJC admitted this, but he thought it was better to have a structure for this evaluation rather than having it
done by subterfuge.
 Although the Oakes test appears to have been derived from a US Supreme Court case (see CBp.763), the courts have
avoided using comparative law in order to find a standard for a “free and democratic society.”
The Oakes test was developed in a criminal case, where one would want to have a stringent test but…
 It has been used in subsequent cases about very different topics, such as freedom of expression (Irwin Toy, RJR
Macdonald).
 The SCC has approached the Oakes test differently depending on the right being infringed, but it has not gone
as far as the US in establishing “tiers” of scrutiny for classes of rights.
 In Irwin Toy, the court said that judicial deference in s.1 analysis was appropriate where:
o the issue involves complex social-science evidence (e.g., macroeconomics, or the effects of
advertising)
o the government is seeking to protect a vulnerable group
o the government is balancing the interests of different groups competing for limited resources
Purposive approach in Charter vs. Pusposive in Federalism
 Is this the best way to name the interpretation under the Charter
 Briefly look at Oakes text
Judicial Deference


In Irwin Toy the court said greater deference should be given to the legislature in certain circumstances:
1. Where the gov’t has sought to balance competing rights
2. to protect a socially vulnerable group
3. to balance interests of various social groups competing for scarce resources
4. to address conflicting social science evidence as to the cause of a social problem.
Also see R. v. Lucas at CBp. 773 - McLachlin J in dissent  At 3rd statge the judge needs to take into account the
benefits and the detreminets of lmiting the expression in issue (as Wilson argued in Edmonton Journal). The crown
has already been required to establish the pressing and substantial nature of the legislative objective, the rational
connection between the objective and the limitation of the right and the minimal impairement or appropriate
Page 37
Constitutional Law: 2004-2005
Kirk Shannon
restraint, independent of any subjective perceptions of th value of the expression at issue. At this final stage the task
is to determine whether the benefits of the limitation outweigh its detrimimental effects.
Contextual Approach and S.1
 In Thomson Newspapers Co. v. Canada the court emphasises that a contextual approach is to be taken when
evaluating s.1 analysis based on:
o Vulnerability of a group the legislature seeks to protect
o That group’s own subjective fears and apprehension of harm
o The inability to measure scientifically a particular harm in question
o Nature of the activity that is infringed
 McLachlin J. in R. v. Lucas argued that context (value of expression) should only play a role in final stage of
proportionality test and not the whole test. This is a different view from La Forest and Cory JJ.
 Issues raised by a contextual approach:
o Everybody is in favour paying attn to circumstances of the case and the ACTUAL infringement BUT in
hands of some judges, focus on context leads to lowering std of review and lessens demand on gov't to
justify infringements on rights. Is an appeal to context also an appeal to give lower weight to certain rights
and demand less of gov't wrt justification?
o Contextual approach suggests that a certain right has a different value in different contexts - e.g. freedom of
expression in context of political elections vs. freedom of expression in context of littering ordinances that
restrict postering
o Extent to which context does or does not justify a less deferential approach to court's application of s.1.
Anti-contextual and anti-deference
RJR Macdonald
Jurisdiction (770) [APPLICATION OF OAKES ONLY]
Facts
Legislation barred tobacco advertising; not only lifestyle ads but also informational advertising. It also
required tobacco companies to put unattributed health warnings on their packaging. The legislation was
challenged under division of powers, under crim, and under the Charter.
Issues
What is the appropriate application of the Oakes? How much deference should courts accord to parliament?
Holding
Deference must not be extended to far.
Ratio
Maclachlin: (page 771):“To carry judicial deference to the point of accepting parliaments view simply on
the basis that the problem is serious and the solution difficult, would be to diminish the role the role of the
courts in the constitutional process and to weaken the structure of rights upon which our constitution and our
action is founded.”

771: “Context, deference and a flexible and reasonable standard of proof are essential aspects of the s. 1
analysis, but thee concepts… must not be attenuated to the point that they relieve the state of the burden the
charter imposes of demonstrating that the limits imposed on our constitutional rights and freedoms are
reasonable and justifiable in a free and democratic society.”
Too much context and too much deference will allow us to move away from individual rights approach. This is a
liberal type judgment
Section 33 – Notwithstanding
s.33—the override clause—can only be used to override ss.2 and 7-15. It therefore can’t be used to override many important
rights, including mobility rights and language rights.
 The case of Ford v. Quebec (A.G.), [1988] 2 SCR 712 (CBp.775) established that the court cannot review the substance
of legislation protected by s.33—it can only review the legislation’s form to make sure it fits with s.33.
 A legislature’s use of s.33 has a five-year limit; it must be renewed to remain effective.
 Quebec created an “omnibus” override law in June 1982, making all of its laws operate notwithstanding ss.2 and 7-15;
however, this override was not renewed.
 Lorraine Weinrib notes that the override provision can counter criticism of judicial review: it gives legislatures the last
word.
 Hogg and Bushell cite s.33 as an opportunity for “dialogue.” However, s.33 has hardly ever been used.
Page 38
Constitutional Law: 2004-2005
Kirk Shannon
Budgetary Constraints and the Charter
Newfoundland (Treasury Board) v. Newfoundland and Lab. Association of Public and Private
Employees (N.A.P.E.)
Jurisdiction
SCC [2004] – Binnie J.
Facts
Pay Equity legislation signed in favour of women which is then reneged on by Public Sector Restraint
Act. Reasons given are that province was in the middle of economic crisis. Province cuts to hospital
beds, layoffs, jobs, education and social welfare. Challenge of Act under s.15
Issues
1. Violates s.15 2. Justified under s.1
Holding
1. Yes
2. Yes
Ratio
Look to s. 1 analysis
 Courts will continue to look with scepticism at attempts to justify Charter violations by budgetary
constraints. To do otherwise would devalue the Charter because there are always budgetary
constraints and there are always other pressing government priorities. Nevertheless, the courts cannot
close their eyes to the periodic occurrence of financial emergencies when measures must be taken to
juggle priorities to see a government through the crisis.
 The court took judicial notice of the province's financial condition to find that the provincial
government faced a severe fiscal crisis in the spring of 1991.
 A financial crisis "can attain a dimension that elected governments must be accorded significant
scope to take remedial measures, even if the measures taken have an adverse effect on a Charter
right."
 The need to address the fiscal crisis was a pressing and substantial legislative objective in the spring
of 1991. The crisis was severe. The cost of putting the pay equity into effect was a major expenditure.
The government's response was also proportional to its objective. The detrimental impact of a delay
in achieving pay equity did not outweigh the importance of preserving the fiscal health of the
provincial government.
 The Supreme Court of Canada rejected the suggestion, made by one judge at the Court of Appeal,
that the doctrine of separation of powers should be explicitly added to the section 1 analysis. The
Oakes test itself provided the proper framework to consider what deference to the legislature in the
face of a Charter infringement the doctrine of separation of powers required in any particular case.
o Per R. v. Sharpe budgetary considerations do come into play when dealing with possible remedies. Remedy imposed
by the court must not effect “so substantial [a] change [to] the nature of the particular legislative enterprises.”
L: Freedom of Religion – s.2(a)
Themes: Identity and Autonomy – Liberalism vs. Democracy (Individual vs. Collective) – Purposive vs. Contextual – Role of
s.1 – Internal Limits to s.2(a) – Human Dignity.
Richard Moon, “The Secularization of Religious Freedom” (CBp.817)
 Early Western arguments for freedom of religion, from the time of the Reformation, assumed the existence of religious
truth, but were opposed to the use of coercion in religious belief.
 Later, church and state were separated, but still in the context of a dominant Christian culture.
 In more recent times, the growth of agnosticism as well as religious diversity have led to a secular notion of religious
freedom based on individual autonomy and identity.
o Agnosticism leads one to ask whether there should be such thing as freedom from religion.
o Diversity raises the question of how far the majority must go to accommodate minorities.
o Now there is often a focus on religious imposition rather than religious coercion.
 Role of law – why should the state not speak to the one major religion. Element of coercion. State might, otherwise
use its power to push people to one true path to God. This must be individual.
 Shift to freedom of conscience. What is accomplished in this shift?
 All this makes me wonder: is freedom of religion an outdated concept, misapplied in contemporary Western societies?
It seems to me that many of these cases would be better understood in terms of accommodating cultural diversity.
Diversity and pluralism are the real issues. The imposition of religion will never again be the “purpose” behind a piece
of legislation, the way it was the purpose behind the Lord’s Day Act. But Christianity has left Canada with a set of
traditions that may come into conflict with other traditions.
Page 39
Constitutional Law: 2004-2005
Kirk Shannon

Distinguishes b/n Lokean conception (state support is compatable with freedom of religioin) and another (which is not
compatable). Religious truth is
 Justification of religious freedom can no longer be on finding religious truth. Identifies individual identity and
autonomy. When we protect freedom of religion we protect a person’s right to choose.
 Locates a transformation – no longer a pursuit of religious truth but rather allowing person to choose (identity and
autonomy which Antaki has problems with, see below).
 Thereby he makes differenciation b/n compulsion and imposition. Now focus on imposition which imposition which is
more secular . Appears now that the public sphere has to be emptied of religious practices, etc. Therefore, question is
raised – what is a secular society.
 Is secularism a nutural ground? He says that this is not necessarily true.
Antaki
o Freedom of religion protects individual autonomy and individual identity
o Autonomy – choice to practice as wish
o Identity – self conception
o Question of individuality in both cases
o The word identification collapses these two concepts. Protecting choices that are constitutive of who you are.
o Autonomy is based on two words that translate to a law unto oneself. This does not totally equate to
o Privileging of choice makes sense in a secular society…but does not make as much sense in a religious society.
o Antaki focuses on conscience preceeding religion. Therefore, conscience almost seems more important than
religion.
o Do we need religion? What is it that distinguishes this from any other deeply held view that would fall under
conscience? Could we just have conscience? Goes along with the idea that “Liberals” seem to have two
allegiances.
“Freedom of conscience and religion” is listed as the first fundamental freedom in s.2(a). Religion is also protected indirectly
elsewhere in the Charter:
o s.15: Religion is a prohibited ground of discrimination.
o s.27: multiculturalism
o s.29: Existing rights of denominational schools are protected.
o The fact that “the supremacy of God” is mentioned in the preamble!
 In Big M Drug Mart, Dickson CJC articulated the idea that “a truly free society is one which can accommodate a wide
variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct.”
 Liberalism and Democracy: Freedom of religion has both individual and collective aspects.
In Big M Drug Mart, Dickson CJC said that freedom of religion includes:
 “the right to entertain such beliefs as a person chooses,
 the right to declare religious beliefs openly and without fear of hindrance or reprisal,
 and the right to manifest religious belief by worship and practice or by teaching and dissemination.”
 Dickson CJC defined “freedom” in this context as “the absence of coercion or constraint, and the right to manifest beliefs
and practices.”
 This seems to include both negative and positive rights: the state may be required to uphold freedoms.
 However, there is also a concern that state accommodation of religion in situations like this can lead to state
entanglement with religion.
 There is also the possibility that Canadian secularism is tainted by a Judeo-Christian legacy.
Two cases show how Canada seems to have difficulty as a secular society dealing with its religious Christian roots.
R. v. Big M Drug Mart Ltd.
Jurisdiction Alberta [1985] SCC
Facts
Big M Drug Mart stayed open on a Sunday, and was charged under the federal Lord’s Day Act. Big M
challenged the constitutionality of the Lord’s Day Act.
Issues
Did the Lord’s Day Act infringe on the freedom of religion? If so, was this infringement justified?
Holding
Yes it does infringe. This infringement is not justified under s.1
Ratio
s.2(a)
o Dickson CJC emphasized that both the purpose and the effects of the legislation matter. In this case, the
purpose of the Lord’s Day Act was found to be religious, i.e., the observance of the Christian Sabbath.
Page 40
Constitutional Law: 2004-2005
Comments
Kirk Shannon
(There could be no “shifting purpose”: the Lord’s Day Act’s original religious purpose from 1906 was not
replaced by a secular one over time.)
o The Lord’s Day Act violated freedom of religion because it coerced minorities into observing the
Christian sabbath. Since the law’s purpose violated freedom of religion, it was unnecessary to look at its
effects.
o A purposive approach to freedom of conscience and religion is centred around the centrality of human
dignity and individual conscience. A minimum standard of this would be that the government cannot
compel individuals to observe a specific religious practice.
s.1
o Because the purpose of the legislation could not be justified, Dickson CJC did not undertake a full s.1
analysis. (This case came before Oakes.)
o The claim that the Lord’s Day Act was secular also contradicted the federalism arguments. If the law was
argued to have a secular purpose, it would lose its federal criminal law “morality” justification, and it
would fall under the provincial head of property and civil rights.
o The SCC has said that strong parties shouldn’t be allowed to use the Charter to roll back protective
legislation. What about the rights of retail workers under pressure from their employers to work on
Sundays?
 Emphasis on imposition rather than compulsion. Not compelling you to do something like reciting the
lord’s prayer. It is, rather, an imposition. However, according to Antaki, this is not clear. Focus here on
the words COMPEL and IMPOSE.
Edwards Books and Art Ltd. v. The Queen
Jurisdiction Ontario [1986] SCC
Facts
Edwards Books and three other stores (a fruit market, a fur shop, and a Kosher grocery store) were convicted
under the Ontario Retail Business Holidays Act for having their stores open on Sunday.
Issues
Did the ORBHA infringe on freedom of religion? If so, is the limit justified?
Holding
No.
Ratio
s.2(a)
o Dickson CJC found that unlike the federal Lord’s Day Act, the ORBHA had a valid purpose, that of
providing uniform holidays to retail workers (who happened to be predominantly women). However, it
had the effect of violating the freedom of religion of Saturday Sabbath observers. Looks to economic
disadvantage in eval of effects.
s.1
o Dickson CJC then did a s.1 analysis. He found that the purpose was providing a day of rest was selfexplanatory. As for the rational connection, the Act was justified in singling out the retail industry
(because of competitive pressure on it), and in establishing exemptions for some kinds of businesses. In
terms of minimal impairment, Dickson CJC noted the fact that exceptions were made for small businesses
(with seven employees or less) which closed on Saturday or Sunday. He found this preferable to several
alternative arrangements he could think of. He upheld the ORBHA because the means were well-designed
to meet the objective.
 Beetz J agreed with Dickson CJC in his result, but argued that the ORBHA did not violate freedom of
religion, so the s.1 analysis was unnecessary. Competitive disadvantage was more of a s.15 action
 Wilson J disagreed with Dickson CJC’s upholding of the ORBHA’s exemptions for small businesses. She
didn’t like this patchwork approach to the problem, protecting the religious freedom of some but not others.
She would have preferred a scheme giving anyone the right to open on Sunday rather than Saturday for
religious reasons.
- Compromised scheme of justice with no principle and therefore cannot pass s.1.
Comments
The Ontario legislature later amended the laws to match Wilson J’s dissent.
Antaki on Both of these cases
 Background of these cases is that it looks like imposition.
 However, in the Edwards books case, was not colourable and therefore court looks to the effects rather than the
purpose as in Big M.
Page 41
Constitutional Law: 2004-2005
Kirk Shannon
B.(R.) v. Children’s Aid Society of Metropolitan Toronto
Jurisdiction Ontario [1995] SCC
Facts
The parents, Jehovah’s Witnesses, did not want their newborn baby (named Sheena) to undergo a blood
transfusion. The Children’s Aid Society obtained a temporary wardship order so that Sheena could get a
transfusion.
Issues
Did the Ontario Child Welfare Act unjustifiably infringe on freedom of religion?
Holding
No.
Ratio
o Laforest J, for the majority, held that the parents’ freedom of religion had been violated, but that this
violation was justified under s.1 by the objective of protecting children at risk.
o Leaves broad scope for freedom of religion and allows section 1 to do the work. Shifts the burden
to the state to justify the restriction. Trend to encourage the shift of the burden onto the state
regardless of the right. It is a form of creating a culture of justification
o Iacobucci and Major JJ wrote a concurring opinion in which they said that the parents’ freedom of
religion had not in fact been violated. They held that s.2(a) was internally limited—it did not extend to a
parent’s right to impose religious practices which “threaten the safety, health or life of the child.” They
thought it was therefore unnecessary to look at s.1.
o Shift of language to wellbeing on the second page of judgment. This seems to go towards
infringing rights of freedom of religion for slightly diffuse topics.
Antaki on Children’s Aid Society case
o He thinks the initial threshold of showing a violation is “PRETTY EASY” and it is s.1 that forces justification by the
state.
o La Forest – big decision should therefore go to s.1.
o Iacobucci – decision to stop life-savign treatement for child does not fall in s.2 at all.
 Pits freedom of conscience of the child to freedom of religion of the parents. Child would never get to
grow up to enjoy any charter right.
o Question in the background: Idea of life as a primary value. Look later to cases dealing with abortion, euthasia, 
With rise of secularization, do we have a drop in an idea of the “good life” with the rise idea of life itself. Value
politics.

Two themes in freedom of religion:
1. The nature of the right
 The court takes a broad and generous approach, including belief, declaration and practice.
 This tends to be articulated in individualistic terms, but the collective dimension is underscored in both
anti-discrimination and parental consent cases.
2. The nature of the violation
 In Big M Drug Mart, there was a purpose-based violation: The government clearly intended to interfere
with religious freedom. The legislation was struck down.
 In Edwards, and Children’s Aid Society, there were merely effect-based violations: Secular purposes
interfered with religious freedom. In these cases the legislation was upheld.
ANTAKI DISCUSSION NOTES on religion:
IN BIG M FOCUS IS PURPOSIVE: IF YOU HAVE AN INVALID PURPOSE THEN IT DOESN’T MATTER ABOUT EFFECT. IN EDWARDS CASE,
THE KEY LANGUAGE IS THE LANGUAGE OF EFFECTS, PURPOSE IS OK BUT WHAT ARE ITS EFFECTS?
IN EDWARDS THE QUESTION OF BALANCING COMES UP: THE LANGUAGE OF PRINCIPLE IS INVOKED. Wilson says any limitation under s1
would need to be principled. Can’t protect one group if your not benefiting another, she’s faulting the legislation by the way it distinguishes on the basis of
number of employees.
Purpose vs effect (this comes in later cases, especially irwin toy and keegstra)
1. In Big M Drug Mart, there was a purposive violation: The government clearly intended to interfere with religious freedom. The legislation was
struck down.
2. In Edwards, and Baby Sheena, there were merely effective violations: Secular purposes interfered with religious freedom. In these cases the
legislation was upheld.
Imposition vs compulsion:
1. An imposition is more negative (you are denied from doing something) Imposition in Moon’s description is that is a secular reality that you must
deal with the public sphere which happens to be permeated by
Page 42
Constitutional Law: 2004-2005
2.
Kirk Shannon
Christian culture and language. a compulsion is more positive (I am forcing you to do this).
Big M
Moon’s distinction between compulsion and imposition is key in big M. Point where Big M emphasized compulsion over imposition: Lords day act
compelled Canadians to observe the Sabath. You cannot work on Sunday because it is the day of rest.
Edwards
In Edwards no issue of colorability so the court turns to language of effects. How does law effect employees. Beetz says theres no violation of section 2. SO
he goes back to language of compulsion and says more of s15 issue.
M: Freedom of Expression – s.2(b)
Antaki’s three questions:
1. What is the justification for freedom of expression?
McLachlin J’s dissent in the Keegstra case provides a good summary of the three main justification for freedom of
expression:
1. polical process/democracy
2. search for truth/marketplace of ideas (Liberal notion)
3. inherent value/self-actualization
2. What is freedom of expression?
Underlying question of the justification of freedom of religion. Is it the same mindset that underlines religion and
expression? There are cases that push the boundary b/n expression and conscience. Participation in religion or expression of
beliefs?
 Background is “meaning” and “sense”. Meaning being subjective and sense being more objective. Here, we care
about meaning.
3. What are the limits of freedom of expression?
Limits: Conceived of in terms of nature of expression or religion? Ie. Cannot include denying lifesaving treatment or not
include violent acts. Or are they done through s.1. DANGER IN TAKING A NORMATIVE POSITION. Look at what the
judges are taking.
Shift to s.1 - Liberalism
 There is something liberal in this shift. State limitations. Comes from the social contract tradition. Liberalism goes
towards protecting individual freedom.
 Matter of public justification – democractic and liberal.
Commercial expression falls under 2(b) as per Ford v. Quecbec
Irwin Toy Ltd. v. Quebec (AG), [1989] 1 SCR 927. (CBp.907)
Jurisdiction
Facts
Issues
Holding
Ratio
Quebec
The Quebec Consumer Protection Act banned advertising aimed at kids under age 13. The Office de la
protection du consommateur said that Irwin Toy had violated these provisions, and Irwin Toy brought an
action claiming that the provisions were ultra vires the province and inconsistent with the Quebec Charter.
Once the Charter came into force, Irwin Toy was allowed to amend its actions to take the Charter into
account.
Did the impugned provisions of the CPA unjustifiably infringe on freedom of expression?
No.
Purpose of S.2(b): to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all
expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. (CBp. 908)
Dickson CJC, Lamer and Wilson JJ set out a doctrinal structure for freedom of expression cases:
1. Did the activity count as “expression”?
o This test is very broad: “…if the activity conveys or attempts to convey a meaning, it has
expressive content and prima facie falls within the scope of the guarantee.”  Cannot exclude on
basis of content being conveyed
o “Expression has both content and form, and the two can be inextricably connected.
2a. Did the government’s action have the purpose of restricting freedom of expression?
Page 43
Constitutional Law: 2004-2005
Kirk Shannon
Here the judges make a distinction between restrictions on forms of expression (e.g., antipamphleting laws) and restrictions on the physical consequences of forms of expresssion (e.g. antilittering laws which affect pamphleting).
2a. Did the government’s action have the effect of restricting freedom of expression?
The plaintiff must state (burden) her claims with regard to one of the three principles underlying
freedom of expression, demonstrating “that her aim was to convey a meaning reflective of the
principles underlying freedom of expression.”
 In the case where there is an effect and not a purpose of limitation of freedom, then the
burden shifts away from the state. Must show how valuable your expression was.
Dissent
The judges found that the advertising counted as expression, and that it was restricted by the CPA. So the
real test was under s.1. The judges found that the legislation had a valid objective, i.e., protecting children
from manipulation. Although the social science evidence of harm was uncertain, the judges said, “This Court
will not, in the name of minimal impairment, take a restrictive approach to social science evidence and
require legislatures to choose the least ambitious means to protect vulnerable groups.”
McIntyre, Beetz JJ.: Freedom of expression is too important to be limited except in urgent times. Even then
should only be done where compelling reasons exist
 Here there is a bit of reversal. If the state wasn’t trying to limit you expression, you must show how
valuable your expression was.
Sets out basic doctrinal approach:
1) Was the activity within the sphere of conduct protected by freedom of expression?
-easy: direct expression
-hard: expressive conduct (must be an attempt to convey meaning)
-looking at content and form here
2) Is the government restricting that freedom?
-either in purpose or effect
-analogous to P&S analysis
-Purposive: might be directed either at content or at the form of the speech
-have to consider colourability
-can also consider non-purposive effects, which are more likely to be upheld under s.1
Exemption would be violence (see CBp. 944 in Keegstra)
3) S.1 Analysis: Oakes
-court has defined s. 1 very broadly and addresses limitations under s. 1
-Irwin retreats from Oakes a bit in adopting a more contextual approach—granting more deference bases on the
type of freedom being infringed and based on the interest it is designed to protect—particularly when the latter is for
vulnerable groups (p.913) i.e. it’s easier to survive s.1 where the government is trying to balance competing
rights/interests as opposed to cases of criminal sort where we just have expresser v. the state.
Hate Speech
R. v. Keegstra
Jurisdiction
Facts
Issues
Holding
Ratio
Alberta [1990] SCC
Keegstra was a high school teacher who taught his students an anti-Semitic, Jewish-conspiracy-theory
worldview. He was prosecuted under s.319(2) of the Criminal Code.
Did the impugned Criminal Code provisions unjustifiably infringe on freedom of expression?
No. (4-3 split)
Using the test set out in Irwin Toy, Dickson CJC quickly found that s.319(2) of the Criminal Code did violate
freedom of expression. He added that “the content of a statement cannot deprive it of the protection accorded
by s.2(b), no matter how offensive it may be.”
s.1
He found that the Criminal Code provisions did have a “pressing and substantial” objective:
 protecting members of target groups from harm (mainly emotional/psychological harm).
 preventing harm to society at large; reducing racial, ethnic and religious tension. 
In finding this, Dickson considered international human rights laws as well as other Charter provisions
(notably ss.15 and 27).
Page 44
Constitutional Law: 2004-2005


Dissent
Kirk Shannon
The rational connection requirement was somewhat problematic, because of all the arguments against
criminalization of hate speech (see McLauchlin’s dissent. However, Dickson CJC found that these
arguments were not strong enough to undermine a rational connection.
The minimal impairment requirement was also problematic, because of the possibility of overbroad
legislation and/or a “chilling effect.” However, Dickson CJC held that s.319(2) was precise enough. He
considered alternative policy instruments for reducing racism and hate speech, and he praised these, but
held that there was still a limited role for s.319(2).
McLachlin J dissented: She disagreed with Dickson CJC on the “rational connection” requirement, arguing
that criminalization gave a media platform to hatemongers.
She also disagreed as to “minimal impairment,” citing the “chilling effect” and the possibility of alternative
remedies.
McLachlin J made an important comment in her “rational connection” section: “Prosecutions of individuals
for offensive material directed at a particular group may bolster its members’ beliefs that they are valued and
respected in their community, and that the views of a malicious few do not reflect those of the population as
a whole.” I think this communitarian justification for hate speech restrictions has been too often overlooked.
See Chart for Irwin toy, Keegstra, Butler
Is it expression
Legislation – was the purpose or
effect to restrict?
S.1
Irwin Toy
Advertising aimed at children
Expressive content - Easy to passs
Easy to pass
Keegstra
Teacher spout anti semetic ideas
Action in these two cases all happens in s.1
Richard Moon, “The Constitutional Protection of Freedom of Expression” (2000) (CBp.896)
 Moon lists the same three values as McLachlin J: democracy, truth, and individual autonomy.
 The first two of these have an instrumental account of freedom of expression; the third has an intrinsic account.
 However, all three rest on a premise that “human agency flourishes in communicative interaction.” All three can be
rewritten in terms of social and community life, and this transcends the “instrumental/intrinsic” dichotomy.
1. It also transcends the false “speaker-centred/listener-centred” dichotomy.
Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd.
Jurisdiction
SCC [1986]
Facts
Picketing at a store
Issues
Is picketing considered expression and therefore protected by s.2(b)
Holding
Yes…but…..saved by s.1 as a reasonable limit.
Ratio
Picketers would be conveying a message. Freedom would not extend to protect threats of violence but does
protect message being sent by picketers as pressure.
- Secondary picketing is a reasonable limit under the charter. Can be regulated so that it does not escalate
beyond the actual parties. Should not be able to cause harm to the picketed business and larger community.
o Limitation of labour picketing seems odd. Both picketing b/c of the nature of the goods in the store (eg if they come
from Burma) or labour picketing will cause harm to the business yet one was banned and the other would not have
been?????????
o In BCGEU v. B.C. (A-G) [1988] Dickson CJ ruled that limits on labour picketing were justified outside courts so as
to balance individual values with public or social values. He felt there must be unimpeded access to the courts.
Sexually Explicit Material
Catherine MacKinnon, “Not a Moral Issue” (1984) (CBp.963)
 MacKinnon distances restrictions on pornography from ideas of “morality,” especially male-constructed morality.
1. MacKinnon says that pornography is really a political issue, about power and powerlessness. Pornography is “a
form of forced sex”; it “institutionalizes the sexuality of male supremacy.” “Men treat women as who they see
women as being. Pornography constructs who that is.”
 MacKinnon draws on speech-act theory to argue that it is not necessary to prove that pornography leads to physical
Page 45
Constitutional Law: 2004-2005
Kirk Shannon
harm. She says that pornography hurts all women, not just as individuals, and not just in a “positivistic” sense.
Antaki asks to what extent is this an essay of false consciousness like a Marx discussion. To what extent is this a
statement that Women who embrace pornography are mistaken as the effects of it are so pervasive.
- Unlike West, this must be univocal
Robin West, “The Feminist-Conservative Anti-Pornography Alliance…” (1987) (CBp.964)
 West summarizes the traditional approach to pornography with five distinguishing attributes:
1. It is sexual—it appeals to the “prurient interest.”
2. It is commercialized.
3. It is a kind of speech or expression, not an object.
4. It is offensive, of “low value.”
5. It is “victimless.”
 The standard liberal approach has seen pornography as a matter of individual preferences.
 The standard conservative approach has seen pornography as an assault on “virtue.”
 Neither of these approaches took women’s experiences into account.
 A “woman-centred” approach to pornography should not only include stories of victimization, but also stories of
liberation:
1. Pornogaphy can be a celebration of female sexuality, liberated from traditional patriarchal morality. Pornography
does not only satiate sexual preferences; it can also help transform them. It is possible that most pornography is
bad, but some pornography is good.
 The feminist-conservative alliance has linked concern for women’s physical security with traditional “family-values”
morality. This is not feminism.
R. v. Butler
Jurisdiction
Facts
Issues
Holding
Ratio
Manitoba, SCC [1992] - Sopinka
Butler ran a hard-core porn shop. He was prosecuted under s.163 of the Criminal Code, for possession of
obscene material for the purposes of sale. s.163(8) of the Criminal Code defined obscenity as “any
publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or
more of the following subjects, namely, crime, horror, cruelty and violence.”
Did the impugned Criminal Code provisions unjustifiably infringe on freedom of expression?
No.
Commercial speech less important to protect than other kinds of speech.
 Following the Irwin Toy framework, Sopinka J’s first step was to interpret the Criminal Code in order
to define “obscenity.” He looked at jurisprudence: courts have used various tests, including the
“community standards” test (from R. v. Brodie (1962)). He said that in recent years, community
standards (Test. CBp. 970) have turned against (1) portrayals of explicit sex with violence and (2)
“degrading or dehumanizing” portrayals of women. He used the Charter to give “obscenity” this narrow
definition. He acknowledged the “artistic defence” (or “internal necessities”)—such portrayals could be
tolerated if they were internally necessary to a serious work of art.
 Sopinka J quickly found that s.163 violated freedom of expression. As per Keegstra, meaning sought to
be expressed need not be “redeeming” in the eyes of the court to merit the protection of 2(b).
S.1:
 Sopinka J acknowledged that the tests for obscenity were vague, but that they were still “an intelligible
standard” (especially after his interpretation of them) and they therefore qualified as a limit “prescribed
by law.” (this is reiteration of standard set in Irwin Toy)
 Sopinka J found that the objective of s.163 was avoiding harm, and that this was pressing and
substantial. (The focus on violence and degradation supports this conclusion.) He distanced the
provision from any notion of moral virtue. Although the section was enacted in 1959, Sopinka J says
that there was no “shifting purpose” here (as rejected in Big M Drug Mart), because the purpose of the
legislation was indexed to community standards.
 At the outset of the proportionality test, Sopinka J noted that the kind of expression in question was not
at the “core” of freedom of expression values. It was of “base value” (see p. 976)
 As for a rational connection, although the link between obscenity and harm to women is uncertain,
Sopinka J found that it was enough for Parliament to have had a “rational basis” for believing in such a
link (he drew on Irwin Toy).
Page 46
Constitutional Law: 2004-2005
Kirk Shannon

Comments
As for minimal impairment, Sopinka J reiterated all of the limitations on s.163 that he had mentioned at
the beginning of the judgment.
Comment on p.981 of the casebook—it’s not only images of naked women that are degrading and
dehumanizing: movies, TV, fashion magazines, etc. also reinforce the subordinate role of women. Why
aren’t these banned too?
Antaki
 Antaki asks how important community standards. What role does it play?
 In the court’s focus on effects, is it really talking about effects or is it making evaluation of what is valuable speech
and what is not. Effects is a discussion of causation whereas the focus, in the liberal tradition, on harm would allow
for the protection of freedom of expression no matter what.
 What does it mean to say that porn is not at the core of freedom of expression? How is this evaluation made?
 How important is the judge’s idea of what is expression is based on criteria of truth, etc….. How can they say that
limitation on porn is ok as it is such a “base” form of expression. Does it cross the line in saying what is ok and
what isn’t? Especially when self-fulfillment. Where does value of the expression come up?  CCL speaks of
“double-counting” as it is looked at on several occasions.
 When looking at effects, there is no such thing as incidental effects. Antaki speaks of displacement of the
importance of the purpose in the interpretation
Little Sisters Book and Art Emporium v. Canada
Jurisdiction British Columbia, SCC [2000]
Facts
Little Sisters was a queer bookshop. Canada Customs regularly held up their parcels at the US border. They
challenged the customs legislation that proibited importing obscene publications. (Obscenity here was
subject to the definition in s.163(8) of the Criminal Code.)
Issues
1. Did the customs legislation, as applied, unjustifiably infringe on Little Sisters’ freedom of expression?
2. Did the customs legislation per se unjustifiably infringe on Little Sisters’ freedom of expression?
Holding
1. Yes; 2. No.
Ratio
1. Customs officials showed a pattern of targeting Little Sisters’ shipments. Customs officers were not
properly trained to identify obscenity, nor were there any formal guidelines or procedures.
2. Binnie J rejected arguments that Butler was incorrect, or that the decision in Butler did not apply to samesex erotica. Violence and degradation were just as much of an issue in same-sex erotica, according to Binnie
J. He did not accept that erotica played a special role in the gay and lesbian community, or that the
“community standards” test might not be adequate for a minority community. He said that the obscenity
standards were gender-neutral.
Binnie J also rejected arguments that the customs procedure was too cumbersome to be capable of being
applied fairly. He just ordered the customs officials to stop being discriminatory.
Iacobucci dissented on this last point. He would have struck down the legislation, although he would have
suspended the invalidity for 18 months. (This would have given Parliament time to remedy the situation.)
 R. v. Sharpe, [2001] 1 SCR 45 (CBp986) dealt with the issue of child pornography. The SCC upheld the law, but
McLachlin CJC read in two exceptions:
 “written materials or visual representations, created and held by the accused alone, exclusively for personal use”
 “visual recordings, created by or depicting the accused, that do not depict unlawful sexual activity and held by
the accused exclusively for private use.”
 Except for these cases, the ban on child pornography was justified under s.1 because of the risk of harm to
children.
Antaki Outstanding Questions
 Irwin – Where does Parl draw the line b/n ages of 7 and 13. Somewhere in there kids will be able not be influenced.
Draw the line to the number of employees that can work in a store on Sunday (7). Is this really a good analogy?
 Gov’t as a mediator and as a singular antagonist as discussed in Irwin. In s.7-14 there is the idea of gov’t as
antagonist vs. in other places it is mediator b/n groups. Does this work?
 Is it possible that these two visions that have different conceptions of the principle of the Charter. Follow Petter’s
argument about liberalism which would seem to go along with Gov’t as mediator with a focus on equality. Is there
an advantage in casting gov’t in one or the other. Liberty vs. Equality.
o Could be that s.1 implicitly relativizes rights and makes gov’t a mediator. This would lead towards
equality prevailing over absolute liberty.
Page 47
Constitutional Law: 2004-2005



Kirk Shannon
Harmful effects of porn and hate speech
o What conception of harm underlies the court’s analysis. What does it mean to say that society at large is
being harmed? Resonates with what Catherine McKinnon says.
o If hate speech or porn affect self conception or self-esteem…is this harm
o Causation: Free to do whatever we what, unless it hurts someone (J.S. Mill). But where is the causation –
direct vs. indirect.
Butler line draw b/n particular conception of morality and fundamental conception of morality. The latter is
considered ok as a basis for examination.
Criminalisation leading to suppression  criminalize it, it will go away. This is a discussion of McLauchlin J. in
Keegstra
Thematic Analysis of Freedom of Expression Cases
Textual References
 Purposive approach nec identifying the purpose underlying the Charter right.
 Counter position s.1 to the specific rights or freedoms. Analytic separation carried out in s.1.
 See. CBp. 741 Note no.4 regarding framework of the Charter as a whole. Where do competing interests enter
the analysis. Seems that they only enter in section 1 analysis.
 How rigorous is a s.1 analysis? CBp. 899  In most cases of freedom of expression the court quickly finds a violation of
freedom of expression and then moves onto a s.1 analysis
 CBp. 919 Note 8  Distinction b/n core and marginal forms of expression. When the court decides that some
expression is marginal to values underlying freedom of expression, they apply s.1 in a less rigorous and more
flexible way. (Possible when they say rigorous they might mean principled)
 Rigor of s.1 analysis  CBp. 959 Note 1  Keegstra comment  Hate speech is of low value. This argument
seems to rest on its harmful character. Is the CJ double counting it? Issue of double counting. If there is
something wrong with, eg, hate speech, how many times do we look at the value of the speech (harmful, low
value…..)
 Liberalism  To what extent it underlies the charter
 CBp. 899  except from Owen Fisk  Tension b/n liberty and equality……but maybe also b/n competing
understandings of freedom or liberty.
 CBp. 900  Question by CCL  When should we regard the audience as something that expression
impacts……find it.
 CBp. 938 Note 5  consult it…..critique that there is a free market of ideas and they should be able to make up
their own mind. Public sphere of ideas is controlled by certain conceptions. We shouldn’t allow people to make up
their own mind. Raises the question of social engineering. Where do you draw the line?
HOW DO JUDGES THINK AND APPROACH THESE QUESTIONS: WHAT WORDS DO THEY USE?? HARM, VALUE, CAUSATION,
LIBERALISM, EQUALITY.
OUTSTANDING QUESTIONS:
1. IRWIN: WHERE DOES PARLIMINET DRAW THE LINE B?W AGES OF 7 AND 13? At some point between these adges kids are going to be
able to draw the line and not be influenced. Analogy with how many employees can be in a store on Sundays, In edwrds they draw a similar line.
Maybe judges shouldn’t draw this line. Judges should have deference, this is what they say in Irwin.
STATE AS ANTOGINIST VS STATE AS MEDIATOR: IRWIN CASE (EQUALITY VS LIBERTY).
2. You have idea as the state as the singular antagonist against the individual or the idea of the govt as a mediator between different groups. IS this
proper to pit the govt as either or. In Irwin, the moment you push towards the notion of govt as mediator, you’re relativising rights and saying that
govt has the power to choose which right should stand. In Irwin you need to see how visions are pitted against each other. If court uses language
of mediation it can say its proper for us to be deferential. The state as a singular antagonist means that court cant be deferential and has to more
robustly defend non-relative rights. Conceptions of equality or liberty as more relative are seen
Those who want to push analysis as govt as mediator see equality as preeminent charter value, those who see govt as antagonist want to see liberty
as the pre-emininent charter value. Some factual scenarios will make you thing of govt as antagonist are cases involving criminal law:
1. Does this distinction whole?
2. Is there a rhetorical advantage in casting the govt in either term: arbitrator or antagonists?
Dow need to see the charter as either or. Does charter have to be a unified whole, or can we accept that there are competing traditions within the charter
itself? Can there be a third conception that accepts both?
HARM VS CAUSATION IN KEEGSTRA:
Page 48
Constitutional Law: 2004-2005
Kirk Shannon
conception of harm vs conception of causation: KEEGSTRA CAS:E in the case of hate speech, individual is being harmed and society at large is being
harmed, need (this resonates with Mckinons argument, McKinnon would not go section 2, she wants to break down distinction between speech and action
and say we should move analysis away from section one andd look at what constitutes violence under section 2, Canadian law is influenced by McKinnons
position but it looks at thing, at s1 rather then s2).
What does “harm” mean: JS Mill: traditional liberal analysis: we can do what we want as long as we don’t hurt someone. Where do we draw the line? What
is the court willing to protect. Idea of causation is key. What are the causes of the act?
HARM VS VALUE IN BUTLER (AND KEEGSTRA):
why is hate speech or pornography problematic: because it causes harm, because its low moral value. It causes harmful effects on one hand, on the other hand
its low value on the moral spectrum. IS the underlying value self-fulfillment, does the court have a higher notion of self. Court in Butler says: advancing a
particular conception of morality is no longer permissible: this means the court ahd to emphasize harm over moral, but yet the court goes onto say that the
court can still draw the line between a fundamental conception of morality and a fundamental conception of morality.
WHY DO WE NEED TO HAVE A HARM ANALYSIS AND A LOW VALUE ANAYLIS AT THE SAME TIME?
Maybe this confusion is raised by the nature of the Oaks which forces you to attack the problem form competing analysis: is the harm analysis really doing
the same work as the low value analysis: if so then that’s a case of double counting.
Where harm and value come in the Oaks Test:
OAKS:
1. WHAT IS PURPOSE OF ANTI-PORN LAWW OR ANTI-HATE SPEECH LAW?
2. IS IT A PRESSING AND SUBSTANTIAL OBJECTIVE?
3. PROPORTIANLITY: rtational objective, min impairment, balance of effects
Where does value and harm fit into this analysis:
Mecahnical reading: Minimal impairement test is have you designed the law the best you could. Minimal impairement is designed with operation of law.
Non-mecanical reading: Judicial deference: how closely will judges scrutinize parliament or legislatures choices, if there is going to be discourse of judicial
defference, then maybe they will accept blunt instrument of crim law because it is low value. SO maybe thatey are implicitly using value at this state, even
though it doesn’t explicitly come up in th last step. Background question: if its education then you are not telling specific indidivuals what they can and
cannot do, in crim its more blunt, more authoratitaive.
Blance of effects test is asking OK, the law is well crafted, but is the impairement worth it? Govt did its best but it still impaires the right, but wither its no
big deal because what it impairs is low value, or it is a big deal and should be struck down because it’s a core value. Well maybe the value was already
dicided in an earlier stage and what your deciding is how do we suppress hate speech and justify this suppression.
Key question is: is a notion of value there in the background of all the cases: your conception of what is politics is going do dictate your approach. Fro
example, if you take Mkinnon’s logic, then BY distinquishing morality and poltics you are saying there are no forms of pornography that should be protected,
but then you bring in west you are saying that’s to strong. SO a criminal response would be too strong.
HOW DOES HARM AND VALUE INTERACT, DOES ONE TRUMP THE OTHER?
CONTEXTUAL APPROACH LOGIC:
Seems like the courts implicit understanding of morality is this :
Truth or self-fullment= higher value
Economic gain= lower value
N: Life, Liberty, and Security of the Person – s.7





Note discussion of vagueness in s.1 is similar to discussion of vagueness in s.7  If law is too vague violates this
section. (see CBp. 752)
s.7 appears at the outset of the section on “legal rights”: ss.7-14 deal with criminal procedure issues.
It is interesting to compare to the US “due process clause,” which protects “life, liberty and property.”
1. There is also the idea of “natural justice,” which says that if someone is affected by state action in a distinct and
particular way, they should be entitled to a hearing. They should also be entitled to have the case decided by
independent, impartial officials.
In Canada, liberty generally means freedom from physical restraint or from being compelled to submit to fingerprinting,
to produce documents, etc.
 The SCC rejected the idea that “liberty” includes economic liberty or freedom of contract.
 Political liberties are protected elsewhere in the Charter; they are not covered by s.7.
The right to property was deliberately omitted from s.7 (and from the Charter as a whole), although property is still
protected (vis-à-vis the federal government) by the Canadian Bill of Rights.
Page 49
Constitutional Law: 2004-2005
Kirk Shannon
Procedural vs. Substantive due process and the rule of law
 Substantive vs. Procedural due-process Degree to which conception of the rule of law goes along with a particular
conception of what is good life.
 Move towards substantive due-process is a move towards a more robust conception of the rule of law.
 Procedural refers to ideas of natural justice and “how” the state can deprive you of your fundamental justice.
(Abuse of discretion, arbitrariness, or official has no power)
 Substantive due-process refers to “whether” the state can do this. (liberty interest, no matter how it is applied
still won’t work.
Robust conception of Rule of Law
 Content of the rule of law is not just that officials can only act by law but there are things that they cannot do.
Refers more to the substantive.
 McIntyre’s Dissent in Morgentaler would be more procedural (it is not in the Charter)
 Other judges have a more thick or robust conception of the rule of law (more substantive concept of due process)
say it cannot be because of liberty interest.

The idea of “the principles of fundamental justice” evolved from “natural justice,” which is purely procedural. It was
unclear whether “fundamental justice” was purely procedural, or substantive too, until the Motor Vehicles Reference:
 Debates translate into debates about judicial activism. Thicker the conception of rule of law,
Relationship of s.7 and s.8-14.
 Are specific instantiations of the idea of fundamental justice.
Reference re Section 94(2) of the Motor Vehicle Act (BC)
Jurisdiction British Columbia SCC [1985]
Facts
The BC Motor Vehicles Act imposed a fine and imprisonment on anyone who drove while their licence was
suspended, regardless of whether they knew about the suspension. No defences were allowed.
Issues
Did the impugned provision deprive persons of their liberty in a way not in accordance with the principles of
fundamental justice?
Holding
Yes.
Ratio
Lamer J held that “life, liberty and security of the person” was a threshold inquiry. “Principles of
fundamental justice” was meant to be a substantive test. (s.7 was certainly not just meant to be an umbrella
to introduce ss.8-14. ss.8-14 were specific illustrations of the general principle in s.7.) However, Lamer J
shied away from defining the principles of fundamental justice, except to say that they “are to be found in the
basic tenets of the legal system.”
He held that “principles of fundamental justice” had two prongs:
1. Is the law substantively fair? (Should we have a law at all?)
and
1. Is the procedure fair?
- ss. 8-14 are specific iterations of s.7  illustrate the parameters of s.7.
- fundamental justice is not in the realm of general public policy but in the inherent domain of the
judiciary as guardian of the justice system
- Words fundamental justice cannot be replaced with words natural justice as this would be too
restrictive.
Comments
Hogg really doesn’t like Lamer’s idea that s.7 is a kind of general residual clause for all of the “legal rights”
section.
Hogg points out that the distinction between procedure and substance is indeterminate, and this decision at
least spares us from having to read a whole bunch of cases on that issue.
 The Gosselin case dealt with a woman who received a very small social assistance cheque. Arbour J, dissenting, found
that citizens had a positive right to basic welfare entitlements.
1. According to Arbour J dissenting, s.7 should be interpreted to include two sets of rights:
 “life, liberty and security of the person and the right not to be deprived thereof except in accordance with
the principles of fundamental justice”
 “life, liberty and security of the person” per se, without referece to fundamental justice.
 This reading is supported by the French version of the text, which uses a semicolon rather than the word “and.”
2. However, the mainstream interpretation of s.7 is as one single set of rights, with a qualification.
Page 50
Constitutional Law: 2004-2005
Kirk Shannon
R. v. Morgentaler
Jurisdiction Ontario SCC [1988]
Facts
Morgentaler was prosecuted under s.251 of the Criminal Code, which prohibited anyone from performing
abortions. (s.251(4) created an exception for abortions performed in accredited hospitals and approved by a
“therapeutic abortion committee” of three doctors other than the doctor who would perform the abortion.)
Issues
Were the impugned Criminal Code provisions constitutional?
Holding
No.
Ratio
Dickson CJC, for the majority, took the least controversial route, overturning the law for procedural reasons.
- He found that the therapeutic abortion committee requirement inpinged on security of the person by
interfering with “a woman’s bodily integrity in both a physical and emotional sense.” Forcing a woman
to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations,
is a profound interference with a woman’s body and thus a violation of security of the person.
- Dickson CJC held that this inpingement was not in accordance with the principles of fundamental
justice, because the Criminal Code provisions made legal abortions inaccessible to many women in
practice. If the Criminal Code provides a defence to a criminal charge, it must be a real one. The
provisions were “manifestly unfair.”
Beetz J wrote a concurring judgement in which he held that the law did conform to the principles of
fundamental justice, but was not justified under s.1.
- He did not talk about autonomy and decision-making, only the risk of some women being denied access
to abortion because of circumstances.
Wilson J (the first woman appointed to the SCC, and the only one at this point) wrote a concurring
judgement, focused on substantive issues. She held that s.251 violated women’s liberty as well as their
security of the person. Her judgment had a strong feminist tone, including an assertion that it was probably
impossible for a man to respond to such a dilemma.
- Focus on the procedural issues is a moot point if the right to access abortion is not looked at head on.
- She focuses on Liberty more than on security of person. Right to choose.
- Wilson J’s judgment contained both liberal and communitarian elements. On one hand, she wrote about
an “invisible fence over which the state will not be allowed to trespass.” On the other, she wrote about
“the way the woman thinks about herself and her relationship to others and to society at large.”
All of the majority judges agreed that the law could not be saved by s.1. Wilson wrote that the state’s interest
in protecting the fetus would grow stronger as the pregnancy progressed.
Comments
MacIntyre J and La Forest J dissented.
 No indication of general public acceptance historically.
 Charter does not explicitly address the point of whether s.7 includes a right of a woman to have an
abortion.
 Rights of unborn and sanctity of life. There are conflicting rights.
The arguments about delays seem to beg the question. If it was only a process issue, why strike down the
law? (cf. Little Sisters) This is why Wilson J believed it necessary to confront the problem head on.
Some argue that abortion should have been dealt with under equality rights.
Hogg says that the s.1 analysis was superfluous to this case; it just repeated arguments that had been made in
the s.7 analysis.
Wilson’s conception of the Charter and the individual in Morgentaler (CBp. 1085)
- The charter is predicated upon a particular conception of the place of the individual in society. Not totally
independent and not totally a cog in the wheel. Bit of both. The charter erects around each individual a fence over
which the state will not be allowed to trespass.
- Charter and s.7 relate to Human Dignity
Rodriguez v. British Columbia (A.G.)
Jurisdiction British Columbia [1993] SCC
Facts
Rodriguez suffered from Lou Gehrig’s disease. She sought a declaration that she was entitled to help
committing suicide when her condition became unbearable and if she was unable to commit suicide on her
Page 51
Constitutional Law: 2004-2005
Issues
Holding
Ratio
Kirk Shannon
own. s.241(b) made it a criminal offence to help someone commit suicide.
Did s.241(b) of the Criminal Code infringe s.7?
No.
Sopinka J held that liberty and security of the person had to be balanced against other principles. These had
to be legal principles, not just a vague moral ideals. (This was part of the definition of “fundamental
justice.”)
 In this case, he found that the purpose of s.241(b) was preserving the sanctity of life and protecting the
vulnerable—which were both legal principles.
 He acknowledged that s.241(b) impinged on Rodriguez’s security of the person: This case confirmed
that questions of bodily integrity were governed by “security of the person.”
 However, Sopinka J found that the law was not contrary to the principles of fundamental justice. He
held that there was a meaningful distinction between assisted suicide and overdoses of painkillers in the
guise of “palliative care” or natural death through refusal of treatment.
 Security of the person is intrinsically tied to preserving the life itself.
McLachlin J, dissenting, argued parallel to the Morgentaler case, that s.241(b) deprived Rodriguez of
security of the person, because it denied her the right to make decisions surrounding her own body.
- She held that this was not in accordance with the principles of fundamental justice. A law that is
“arbitrary” or “unfair” cannot be in accordance with the principles of fundamental justice. In this case,
physically disabled people were denied a choice that was available to others. (suicide is not illegal)
- McLachlin J held that countervailing principles were not relevant to a s.7 analysis—they should be
saved for s.1. In s.7, the burden of proof was still on the claimant.
- “But what value is there in life without the choice to do what one wants with one’s life, one might
counter, one’s life includes one’s death.” Liberal, progressive, anti-religious.
- Heart of her judgment is the principle that suicide itself is not illegal but assisted suicide is. This is
counter-intuitive.
Comments
Pat note
Antakit
Lamer CJC also dissented, arguing that s.241(b) discriminated on the basis of physical disability—he would
have overturned it for violating equality rights. He would have suspended the invalidity for one year,
granting Rodriguez a constitutional exemption in the meantime.
- The court hasn’t resolved the issue of whether to balance countervailing principles under s.7 or only
under s.1.
- Hogg uses this as an example of the “broader” approach to “the principles of fundamental justice,”
considering societal values, not just the principles of the legal system.
((I think Sopinka’s approach is similar to the distinction between purposes and effects we saw in 2b cases.
On an abstract level first you cast your net wide and give a generous reading (Big M). In this first
interpritation, yes, rodrigez right to choose whether or not to end her life was protected under security of
the person. But he says the law is not contrary to other princibles of fundemental justice so it can be saved.
The only difference here is that the narrowing is done by fundemental justice test instead of s1 test.
However I fail to see how Sopinka’s logic is diff from rational connection.))
Antaki:
1100: Mclachlin writes: “but what value is there in life without the choice to do what one wants with one life.” This is
profoundly liberal: striking privilidging of choice. What is the crux of Mclachlin’s dissent? Is it an argument based on
principle? Would that be a proper way to characterize it. Suicide is not criminal offense but assisted suicide is.
There is a discussion about judicial deference: has the court in previous decision demand that parliament be principled in
the manner it draw line with regards to disadvantaged groups? Irwin toy, minority religions in Sunday closing… Here
Mclachlin is maybe taking a different tone, she is not deferring to the governments decision. Look at dissent in Irwin toy
(could decent be rebutted by contextual approach), Machlin is saying, yes I agree with you about the value of life but its
not about my view, its about the procedural safeguards. MACHLIN IS ALL BOUT PROCEDURE. Says need to watch
out for too much context or deference.
Key page: 1097: Sopinka says princibles of fundemental are knowable because we have general acceptance among
reasonable persons.
On page 1099: maclachlin argues fundemental justice require that each person, considerd individually, be treated fairly
by law.” Machlins says s7 only to do with individual, not community interests, community interest only comes in at
s1.
Machlin will say if it violates sectin 7, then it cant be saved by section 1. Some people will say that there is already built
into section 7 a standard to which you can save or stricke down the legislation.
Page 52
Constitutional Law: 2004-2005
Kirk Shannon
Antaki
- Sopinka says principles of fundamental justice are knowable because we have general acceptance among reasonable
persons. (See CBp. 1097)
 Harkens back, somewhat, to Beetz’s majority decision in Morgentaler where there might be a state interest
in life
- In McLauchlin’s Dissent she says there is no absolute rule that causing the death of another is an absolute law. She
has a different conception of the centrality of the right to life.
 Like Wilson’s dissent in Morgentaler, there is a focus on rights of liberty
Suresh v. Canada (Minister of Citizenship and Immigration)
Jurisdiction
[2002] SCC – The Court
Facts
Deportation to torture
Issues
Is deportation to torture contrary to s.7
Holding
Yes, but the legislation is still constitutional. Minister must exercise discretion in a constitutional manner.
Ratio
- Principles of fundamental justice are the basic tenets of our legal system.
- Requires a balance of Canada’s interest in combating terrorism and the convention refugee’s interest in
not being deported to torture.  perform proportionality test INSIDE s.7 asking if proposed response is
reasonable in relation to the threat.
- Violations of s.7 are conduct “that would shock the Canadian conscience.”
- Torture is seen as fundamentally unjust.
- [53] From Burns court held that the nexus b/n the extradition order and the mere possibility of capital
punishment was too remote to engage s.12 but that s.7 dealt with the postential consequences of the act
of extradition.
- Must be a sufficient connection b/n Canada’s action and the deprivation of life, liberty, or security.
- Violation of s.7 will only be justified under s.1 in exceptional conditions, such as natural disasters, the
outbreak of war, epidemics and the like.
 The SCC here seemed to minimize the role of s.1 in s.7 cases—it said that s.1 should only be used in exceptional
circumstances (like war).
 Generally, the court has held that s.1 can not be used to justify a breach of s.7. If a law is not in accordance with the
principles of fundamental justice, it cannot be justified. The SCC has used s.1 analysis in s.7 cases, but according to
Hogg, it has never been used by a majority to justify a breach of s.7.)
Sercurity of person is both psychological and physical integrity.
New Brunswick (Minister of Health and Community Services) v. G. (J.)
Jurisdiction
[1999] SCC – Lamer CJC.
Facts
Three kids taken away from the appellant and no legal counsel was provided for her. Legal does not cover
the representation of indigent parents in custody hearings.
Issues
Does a parent have a right to state funded counsel when child is being taken away?
Holding
Yes
Ratio
Security of the person includes both physical and psychological integrity. Is this threat to psychological
harm such that there is a violation of security of the person.
 Ordinary stress and anxiety is not enough (like McIntyre in Morgentaler). Here, must have a serious
and profound effect on a person’s psychological integrity. Assessed objectively with respect to the
person of reasonable sensibility.
 Not enough to just way or assess damage to a person’s psyche.
 In this case, removal of a child is a gross intrusion into a private or intimate sphere. There is a stigma
that comes with being declared an unfit parent which is a serious consequence.
 Does not extent to where child is sent to jail or conscripted for the army. Here, the state is not making
a pronouncement as to the parent’s fitness nor usurping the parental role.
 S.7 not limited to criminal matters.
 Even if violates personal security, still may be in accordance with principles of fundamental justice.
In this case, was NOT. Right to a fair hearing required counsel which should be provided if it cannot
be afforded. These hearings are effectively adversarial hearings.
 Right to a fair hearing will not always require counsel (see para 86)  depends on seriousness and
complexity of the proceedings and capacities of the parent.
Page 53
Constitutional Law: 2004-2005

Concurring


Kirk Shannon
Fails s.1 on balance of effects  salutary effects of controlling legal aid expenditures do not
outweigh deleterious effects.
L’Heureux Dubé’s judgement brings in s.15 into the evaluation of s.7
Feminization of poverty is an entrenched social phenomenon.
Antaki
 Role of social scientific ways of talking about things. Here, para 59, “an inexact science.” Why adopt language of
psychological integrity if you aren’t going to be talking about?
 Could one go through the analysis without using the language of psychological integrity.
 What is really doing all the work  Psychological integrity or just the fact that a child is being taken away from a
parent. Why are we using that language to begin with. Is it a focus on effect.
Background issue: Re-characterization needed for charter claim might be cause of psychological evaluation due to the focus
on individual right.
O: Section 7 and the Litigation of Poverty
D. Wiseman, “The Charter and Poverty: Beyond Injusticiability”
 Detrimental effects of poverty upon the equality, human dignity, and personal scrutiny of vulnerable and
disadvantaged groups are quite apparent yet lower courts have precluded and meaningful scrutiny of poverty-related
claims – especially those made under s.7.
 B/c unjusticiable, arguments will be marginalised and categorized as second-class arguments
 Inconsistency with Human Rights obligations to which Canada has committed itself.
 UN committee has criticized the injusticiability of poverty-related claims wrt the Charter by the courts.
 These rights have been the subject of constitutional adjudication in many other countries and are explicitly
justiciable in South Africa as per their constitution.
 Arguments against jsuticiability are:
o Textual analysis of s.7 and s.15
o Positive and negative obligations
o Court’s lack of institutional capacity and legitimacy to adjudicate on such poverty-related claims.
 Possible responses under the charter are many included s.1 or remedial deference.
Antaki
o Under international covenants, there is no actual obligation to positively do something. Actual language in ICCPR
is not as forceful as he makes it out to be.
P: Equality Rights  s. 15



Equality is a complex and highly contested issue; no common terminology has emerged to capture the many ideas it
encapsulates at either the domestic or intl level.
According to McIntyre J. in the Andrews v. the Law Soc of BC, the concept of equality, more than any of the other
rights and freedoms guaranteed in the Charter, lacks precise defn.
Pre-Charter jurisprudence had a very limited notion of equality, basically emphasizing equal administration of the law.
The original legal response to overt discrimination (in the 1950s and 1960s) was anti-discrimination laws, with an
emphasis on equal treatment. (This is still the first focus of the law.)
The second wave of reform went further, rejecting the “sameness” paradigm.
o Martha Minow wrote on the “difference” dilemma: the stigma associated with asserting and articulating a
difference versus the harm associated with not asserting a difference.
o The “same” laws can affect different people differently, even without any intention of discrimination:
“adverse effect discrimination.”
M. Schwartzschild, “Constitutional Law and Equality”
 Schwartzschild talks about the different kinds of equality: equality of opportunity, equal rights, equality of results or
possessions, equality of welfare or happiness… some of these are mutually exclusive, due to the fact that people are
different.
Page 54
Constitutional Law: 2004-2005

Kirk Shannon
Enlightenment equality thinking is grounded in respect for the supreme worth of the individual.
W. Black and L. Smith, “The Equality Rights”
 Black and Smith point out that equality rights are comparative: one must have a reference point.
1. It’s not always obvious who this reference point should be.
2. Nor is it obvious whether the reference point should be another individual, or a group as a whole.
 The use of an individual as a reference point can hide statistical trends.
 It is clear that uniform application of a rule doesn’t always produce equality.
1. One alternative would be to take a purposive approach: Ask what the purpose of the process is, and whether it has
been achieved equally for all.
2. Black and Smith list several options:
A: removal of conditions of subordination or disadvantage: This is the idea that the law should aim to deal with the
sources of inequality, not just the tangible consequences. (Catharine MacKinnon’s feminism is one example of this
approach.)
B: creation of conditions for self-fulfilment
C: equal concern and respect: This is Ronald Dworkin’s idea of focusing not on the tangible consequences of
decisions, but whether people are respected in the decision-making process: “treatment as an equal rather than
equal treatment.”
W.S.Tarnopolsky, “The Equality Rights”
 Dicey proposed equality before law as one of the three main principles of the constit principle of ‘rule of law’. He
defined it as the equal subjection of all classes to the ordinary law of the land. .
 A more modern version has been proposed by Marshall- equality of state and indiv before law.
 One of the most famous applications in Can of this view was in Roncarelli. Frank Scott, counsel for Roncarelli, said
that equality before law could be stated in two basic rules underlying our constit structure that entitle us to say that we
live in a free soc:
o First, the indiv may do anything he pleases unless there is a provision of law prohibiting him.
o The second defines the authority of the state and places the public official in exactly the opposite situation
from the private indiv; he can do nothing in his public capacity unless the law permits it.
Modern equal protection jurisdiction (especially in the US) is characterized by a three-tiered approach:
o strict scrutiny- any legislative classification that is not necessary to achieve a compelling gov objective will
be struck down. (Race)
o intermediate scrutiny- applied to classifications on the basis of gender. Legis struck down if gov cant show
that it is substantially related to societal interest. (gender)
o minimal scrutiny- courts will uphold a law as long as its reasonably linked to a legitimate gov interest.
Role of s.1 in equality cases
o Discussed by McIntyre (in dissent on this point) in Andrews with a desire to lower the requirements for a law to be
justified under s.1
Purposive and textual Approach and equality cases
o Does this move us away from situations where there are tests?
o In Law goes to human dignity which becomes problemtic as must focus on things like feeling. See discussion of
reasonable person and human dignity below).
Andrews v. Law Society of British Columbia
Jurisdiction British Columbia – SCC [1989]
Facts
Andrews was a British subject, permanently residing in Canada. He qualified for the British Columbia bar
except for the fact that he was not a Canadian citizen. He brought an action claiming that the citizenship
requirement violated s.15.
Issues
Was the citizenship requirement unconstitutional?
Holding
Yes.
Ratio
The majority held that the requirement violated s.15 and that it could not be justified under s.1. McIntyre J,
dissenting, disagreed about s.1. But his opinion on s.15 was the majority opinion.
 McIntyre J said that the purpose of s.15 was not to eliminate all unfairness completely, but to prohibit
Page 55
Constitutional Law: 2004-2005
Kirk Shannon
discrimination based on immutable personal characteristics.
It is a comparative concept, the condition of which may only be attained or discerned by comparison
with the condition of others in the social and political setting in which the question arises (p. 1150)
 Note implicit reference to human dignity bottom p.1151.
 “the admittedly unattainable ideal should be that a law expressed to bind all should not b/c of irrelevant
personal differences have a more burdensome or less beneficial impact on one than another.” (1151)
McIntyre J set out a three-part test for equality claims: NB Intent does not matter.
1. the person is not being treated equally (distinction in treatment):
2. the distinction is based on one of the enumerated grounds or an analogous ground: s.15 was
definitely confined to enumerated or analogous grounds, not just any distinction whatsoever.
However, McIntyre J accepted that the grounds in s.15 were not exclusive; he allowed the
possibility of “analogous”grounds.
3. the law has a discriminatory impact: McIntyre J also acknowledged the possibility of “adverse
effects” discrimination.”
 McIntyre went on to find that citizenship was an analogous ground of discrimination, and that the law
had a discriminatory impact by requiring permanent residents to wait to obtain citizenship before
practicing law.
 Language of immutability is used by La Forest  Citizenship is immutable and beyond control of the
individ (note that these are not the same thing).
Dissent
 McIntyre: S.15 guarantee is the broadest guarantee provided by the Charter and it should therefore not
WRT s.1
hinder gov’t from making the innumerable legislative distinctions and categorizations that are
unavoidable whe governing (1154). As such, the Oakes test should be relaxed for s.15 so that not all
differentiation is caught; relax it from “pressing and substantial objective” to “pursuing sound
objectives in a reasonable manner.”
 Opposite to dissent in Lavoie v. Canada see p. 1158
Comments
 Definition of discrimination: “A distinction, whether intentional or not but based on grounds relating to
personal characteristics of the individual or group, which has the effect of imposing burdens, obligations
or disadvantages on such individual or group not imposed on others, or which withholds or limits access
to opportunities, benefits, and advantages available to other members of society.”
 Two rejected approaches to interpreting s.15 which are at opposite ends of the spectrum:

Hogg: Every distinction made by law is discriminatory and must be justified under s.1. Rejected
because this trivializes discrimination and denies any role to s.15. (Would be analogous to
expression)

Second approach: Discrimination is unfair or unreasonable difference in treatment. Rejected
because it leaves no role to s.1. (Analogous to s.7)
Summary: the three-part Andrews Test:
1) a distinction in treatment
2) that results in the imposition of a burden or denial of a benefit
3) on the basis of an expressly prohibited ground or one analogous thereto. In Law, Iaccobucci, J. clarifies this is
“discrimination in a substantive sense involving factors such as prejudice, stereotyping and disadvantage.” (further
elaborated on in Law at CBp. 1165)

 Possible that Andrews stands for more than this
 Antaki thinks that it is all too easy to say that this case stands for a test and is now not law because of Law. Maybe
this is not the case. Like the POGG cases, it is possible that this case stands for more than this test (possible
response, see note 4 on CBp. 1156)
Antaki
 To what extent is this test attempting to navigate b/n section 1 and section 15. (see CBp. 1157)
Analogous Grounds??
o Must have a clarification from Andrews test for what is analogous. Showcases court’s struggle b/n individual
and groups. Charter forces us to look at individuals
o Immutability (ie. something that cannot be changed) is a possible argument—but this is problematic when it
comes to religion.
 To what extent should your ability to change be part of the discrimination discussion
Page 56
Constitutional Law: 2004-2005

Kirk Shannon
CCL switches to “beyond personal control” which is not the same thing. Brings in agency
and power to change. Fits in a liberal, individual model.
Almost gives way to the language of costs – too high costs for the individual to change

What else is crucial in the test?
o Formal vs. substantive  law that might on its face be ok, might not be ok.
o Must put the individual in the context of group.
The Equality Trilogy of 1995
In cases between 1989 and 1995, the courts had been using a test determined in Andrews – but in a trilogy of rulings in 1995,
the court separated into three dif camps on the interpretation of s.15(1).
 Miron v. Trudel- the denial of auto accident benefits to an unmarried couple was seen to be discrimination on
the basis of marital status.
 Egan v. Canada- the denial of old age spousal allowance to same-sex couples did not violate the Charter.
While five judges held it to be discrimination on the basis of sexual orientation, Sopinka closed the decision at
the s.1 stage of the analysis.
 Thibaudeau v. Canada- the court dismissed the challenge that the ‘inclusion-deduction’ rules in the Income Tax
Act regarding child support payments had a discriminatory impact upon women because custodial parents (the
vast majority [98%] of whom were women) had to claim money received on their taxable income while the
parent paying could claim it as a tax deduction. Iacobucci said that the real discrimination was against intact
verses divorced families, with divorced families getting a favor because the one paying got a tax deduction!
Needless to say the women on the bench dissented on that one.
Personal characteristic at issue must be irrelevant to the functional values underlying the challenged law  Antaki thinks this
comes back to intent in some way
The Law decision has changed the middle ground approach of Andrews. It’s rare that much of the analysis will be done in
s.1 – s.15 is where all the action is.
Law v. Canada (Minister of Employment and Immigration
Jurisdiction
SCC [1999]
Facts
Nancy Law was 30 years old when her husband died; she was denied benefits under the Canada Pension Plan
because she was under 35 at the time of her husband’s death. (Law had no disability, and no dependent
children.) CPP survivor’s pension denied to spouses under 35 with no disabilities and no dependents until the
age of 65.
Issues
Was the minimum age requirement for CPP benefits unconstitutional?
Holding
No (unanimous decision).
Ratio
Iacobucci for the Court: (for sum of test see CBp. 1173)
General Approach
Law Test
Guidelines for analysis, not a rigid test; must be purposive and contextual.
Three Central Issues in Interpreting s. 15(1). All three must be satisfied:
Stage 1: Differential Treatment in purpose or effects?
 Does the law (i) draw formal distinctions between claimant and others on the basis of personal
characteristics or (ii) fail to take account of the claimant’s already disadvantaged position?
Stage 2: the claimant subject to differential treatment on one or more enumerated or analogous
grounds?
Stage 3: Does the differential treatment discriminate by imposing a burden or withholding a benefit in a
manner that reflects stereotypes or otherwise promotes the view that this person is less capable or worthy
of humanity. (purpose and effect)
Purpose (see p.1165)
The purpose of s.15.1 is to prevent violation of human dignity and freedom (and to protect and remedy
disadvantage of discrete and insular minorities). The existence of conflict between the purpose or effect
of impugned law and that of s. 15(1) is necessary to found a discrimination claim.
Comparative Approach
The claimant generally chooses group of comparison, but court may refine the comparison
Page 57
Constitutional Law: 2004-2005
Note
Kirk Shannon
Context
Whether legislation demeans the claimant’s dignity must be examined from the perspective of the claimant,
and should be assessed using subjective and objective criteria (reasonable person). There are a variety of
factors a claimant can refer to—court to be guided by prior jurisprudence. (not exhaustive):
A) Pre-existing disadvantage, stereotype, prejudice
 discrete and insular minorities
 favours a finding that s. 15 has been infringed
Historically discriminated against group is not determinative (as is an individual rights doc) but will be
considered.
B) Correspondence or lack thereof between the ground on which the claim is based and the actual
needs and circumstance of the claimant or others (i.e. is the differential treatment helpful)
 more difficult to establish discrimination to the extent the law takes the claimant’s situation into
account, less difficult where the law fails to do so
C) The ameliorative purpose or effect of the law
 if the purpose is to help a disadvantaged group then the court is more likely to allow an infringement
for advantaged people
D) Nature and scope of the interest affected by the law
-the more serious and localized to the group, the more likely the differential treatment is discriminatory
Although onus is on claimant, need not adduce evidence to show a violation of dignity or freedom
-can rely on logical reasoning and judicial notice
Application to the Case at Bar
It is a form of (A) differential treatment on the basis of (B) an enumerated ground. (C) Discrimination:
Claimant: it does so in purpose and effect. The assumed correlation between youth and ease of rehabilitation
is faulty. Issue is whether it violates dignity and freedom. Pl has not demonstrated a purpose or effect
violation of freedom or dignity (ie focus on purpose of s.15). Judicial notice of increased difficulty of reentering job market at older age. The provision treats young people differently, but does not promote the
notion that they’re less capable or stereotype or degrade them. There is a clear ameliorative purpose. It
doesn’t reflect a view of that she is less deserving, i.e. there’s not real harm here.
Law ruling was a shift back to single approach, but it modified the test by adding the requirement that human
dignity be implicated. Did not refer to the irrelevant personal characteristics test applied in 1995 trilogy.
CCL: “commentators have criticized the dignity standard for shifting to the s15 analysis a
balancing of individual rights and social objectives that ought to take place pursuant to s1, where
the govt rather then the plaintiff has the burden of proof. (pag 1180)”
Antaki
o Would this case have gone the other way if had used Andrews? Yes would have been decided differently. This
comes back to the relativising of tests.
o Expansion on Andrews test where denial of a benefit is further defined. Almost saying that dignity was presupposed
in Andrews.
o Major change from Andrews is use of Dignity (seems to be a circular argument of sorts).
o Way out of this for the courts is use of the “Reasonable Person”.
o Harkens back to purposive approach
o Trying to make claim more objective (by adding reasonable person).
o Court even uses the word “dispassionate”.
o CBp. 1149  Law changed the Andrews test incorporating concept of violating human dignity. Now courts follow
the Law test.
o When does a differential impact become a discriminatory impact? This seems to be the struggle.
o Is the law solution based on dignity, was it present in Andrews and do we need to resort to dignity to set
down this criteria?
Use of the Language of Reasonable Person
The use of the reasonable person could be considered to go against the whole idea of the Charter which focuses on each
specific individual.
How could the court have gotten to the same place without “reasonable person”? Yes, through s.1 and minimal impairment
test. Instead put internal test into s.15 and therefore are forced into the language.
o By talking of self-respect and self-esteem the court then gets stuck trying to move towards something more
objective.
Page 58
Constitutional Law: 2004-2005
o
o
Kirk Shannon
Could be considered to go back to the US distinction of strict scrutiny, intermediate scrutiny, minimal scrutiny.
Human dignity and Reasonable Person are combined to perform to limit s.15. If were stuck with just human dignity,
it is difficult as would have to rest case on how somebody feels……..or could just get rid of language of both and
rest it just on contextual factors.
Adverse effects discrimination: a “facially neutral” law resulting in differential treatment.
o Andrews  explicit requirement of being a citizen – direct discrimination
o Eldridge  neutral facially with differential impact  adverse effects discrimination.
Eldridge v. British Columbia (A.-G.)
Jurisdiction British Columbia [1997] SCC
Facts
Three deaf people were not provided with free sign language interpretation in hospital, and they claimed that
this violated their equality rights. BC’s health legislation gave the Medical Services Commission the discretion
to decide which services to insure, and it gave hospitals the discretion to decide which services would be free.
Issues
1. Were the hospitals bound by the Charter?
2. Did the absence of free sign language unconstitutionally violate equality rights?
Holding
1. Yes; 2. Yes. (unanimous decision)
Ratio
Purpose: La Forest J described two purposes of s.15. Besides the idea of human dignity emphasized by
Iacobucci J in the Law case, he added the goal of rectifying and preventing discrimination against
disadvantaged groups.
La Forest J followed the statements in Andrews that a facially neutral law may be discriminatory, and that it is
not necessary for a law to have had a discriminatory intent.
La Forest J drew on Eaton v. Brandt County Board of Education (1997), which dealt with the application of
equalty rights to disability cases—it concluded strongly that equality meant the accommodation of
difference.
La Forest J disagreed with the lower courts, which had said that sign language interpretation did not have to be
provided because it was an “ancillary service.” He said that communication was integral to medical care;
therefore deaf people were being denied a benefit available to others.
The respondents argued that benefit programs should only be scrutinized for adverse effects discrimination
when the adverse effects might exacerbate the disparities between the group and the rest of the population.
The court rejected this, saying that the government had an obligation to make sure disadvantaged
members of society could take advantage of the benefits being given once the state decides to give a
benefit.
Court states that the cost issue regarding the services that must be provided should be taken care of in s.1.
Comments
La Forest’s comments on p.801 are a good summary of the chapter on applicability
 Also note that he says s.15, like all charter rights, is to be generously and purposively interpreted. (CBp. 1181). This goes
in line with McIntyre J. in Andrews and Iacobucci in Law.
 Idea that once state provides benefit it is obliged to do so in a non-discriminatory way. Adverse effects must be
taken into effect. Language of gov’tal responsib should be taken up in s.1.
 Vriend as adverse effects discrimination.
 Seems opposite to view put forward by Sheppard in essay below.
Antaki
 Proposes two different ways of thinking about equality issues that arise
o You take one trait and make your judgments regarding the claim based on that trait
o Ignore the person’s difference ??????????
 La Forest says Deafness is irrelevant to the health care system – values undergirding the legislation in Andrews. To
what extent is it important to find values under the law – is that trying to bring back intent into this test?
 Antaki asks if this is an easy or hard case of adverse effect discrimination
o Easy as they all suffer the same discrimination – negative impact is the same across the board.
o Was harder as an adverse effect case in Corbiere below.
Colleen Sheppard, “Of Forest Fires and Systemic Discrimination” (2001) (CBp.1190)
 There is a background understanding that discrimination needs intent.- we will find hints of that in cases even though
Judges will say the opposite. This cannot be.
 In adverse effect discrimination, inequality results from equal treatment – note there is not intent to discriminate.
 Religion and employment, such as the Sunday closing cases (and especially O’Malley—the case of the Seventh Day
Page 59
Constitutional Law: 2004-2005



Kirk Shannon
Adventist whose employer required her to work on Saturday), have provided our paradigm for thinking about adverse
effects.
1. This may not always be appropriate. In such cases, all of the members of the group were equally affected. However,
in cases involving race or gender, the effects may not exclude everyone, but there is often a statistical correlation.
The Meiorin case (British Columbia (Public Service Employee Relations Commission) v. BCGSEU (1999)) involved an
aerobics test for firefighters. About two-thirds of male firefighters passed this test on their first try; only about one-third
of women did. McLachlin J held that this established a prima facie case of discrimination, but she did not elaborate any
criteria for this.
In Symes v. Canada (1993), Iacobucci J introduced a causation requirement: the adverse effects had to be caused by or
related to the impugned provision. (Per Antaki could be doing some of the work for intent here. Other places, causation
might play the role of morality) Criticism of need for statistics the degree to which causation must be shown by advocate.
Sheppard thinks it would be helpful if the courts distinguished between:
1. facially neutral policies, practices and standards
2. facially neutral distinctions or categorizations (e.g. domestic workers, immigrant spouses)
o Sheppard  Does the exclusion of certain grounds from s.15 make one have to make arguments about
adverse effects with a traditional ground? Advocates for the need for a better account of adverse effects
discrimination (which, she says, is systemic).

Calls for better understanding of when and how adverse effects cause discrimination.
 Paradigm case is labour relations and minority religious groups.
 Harder cases are sexism and racism cases as they are so ingrained in society.
 It would seem that her view is opposite to La Forest (see Eldridge and CCL in b/n Andrews and
Law)  she says should not look to the purpose of the law and only look to the effects.
Have we gotten away from the language of “Intent” as important in defining discrimination?
 The “irrelevant” criteria might be saying you are expecting the legislature to discriminate explicitly. By implication
this test requires an explicit finding of discriminatory intent or purpose to find discrim.
Diane Pothier, “Connecting Grounds of Discrimination to Real People’s Experiences” (2001) (CBp.1194)
 Pothier responds to those who criticize enumerated grounds of discrimination, by pointing out what happened in the
US, where there were no grounds of discrimination.
 According to Pothier, enumerated grounds serve as a reminder of why discrimination is prohibited. They link the law to
history and context, and focus attention on the real sources of discrimination.
 “Grounds of discrimination, as a legal construct, are markers of the dynamics of power. The exercise of identifying new
analogous grounds forces an inquiry into the complexities of the dynamics of power.”
Corbière v. Canada (Minister of Indian and Northern Affairs)
Jurisdiction Federal SCC [1999]
Facts
S.77(1) of the Indian Act required Indians to live on reserve in order to vote in band elections. Nonresident
band members challenged this under s.15 saying residence was an irrelevant personal characteristic.
Issues
Did the exclusion of off-reserve members unconstitutionally violate equality rights?
Holding
Yes.
Ratio
McLachlin and Bastarache JJ (for the majority of five) held that off-reserve status was an analogous ground
of discrimination.
They added that distinctions based on enumerated or analogous grounds are not always discriminatory, but
they are “constant markers of suspect decision making or potential discrimination.” (1198) They make it
clear that once an analogous ground is recognized, it holds true in any case, and doesn’t depend on
context.
Discussing how analogous grounds might be identified, they emphasized immutability, and said that other
factors would have to “flow from” immutability.
They distinguished reserve status from mere residence.
Dissent of 4 L’Heureux-Dubé J concurred in the decision, but had different criteria for analogous grounds. A
characteristic might be analogous if:
1. It is immutable, difficult to change, or can only be changed at an unacceptable cost.
2. The group is lacking in political power, disadvantaged, or vulnerable.
3. If the ground is recognized in human rights statutes (e.g., social condition)
Page 60
Constitutional Law: 2004-2005
Comments
Kirk Shannon
L’Heureux-Dubé J was quick to point out that none of these are requirements, and that other criteria might
be added.
L’Heureux-Dubé J seemed to say that analogous grounds could vary in their applicability between contexts.
Note the majority decision takes issue with this by stating that analogous grounds should not be context
specific.
Prof. Sheppard stressed that this case could have been looked at as an adverse effects case rather than an
analogous grounds case.
Antaki
 Not a straightforward Law test as they have a long discussion of analogous grounds. Tension in court when
L’Heureux-Dubé thinks there should not be as much focus on analogous grounds.
o Three more analogous – marital, sexual orientation, off-reserve status of aboriginal. Rejected provincial
residence, employment status….
o What about language or poverty or social condition?  CCL asks
o Seems to deal with immutability  Debate b/n McLauchlin and L’Heureux Dubé. To what extent criteria of ground is important and to what extent it
collapses into human dignity of requirement’
 L’Heureux Dube (minority) trying to collapse the last two steps of the Law test. Majority disagrees (under
McLauchlin) saying that there is a list of enumerated or analogous grounds.
 McLauchlin goes back to immutability (or changeable to a cost of human identity)
L’Heureux Dube disagrees on centrality of immutability.
Lovelace v. Ontario
Jurisdiction Ontario SCC [2000]
Facts
Ontario operated Casino Rama, whose profits went into a First Nations Fund and were then distributed to
registered Indian bands in order to improve the poor socioeconomic conditions of band members. Non-status
(i.e., non-registered) Indians and Métis sued to claim a share of the revenue.
Issues
Did the exclusion of non-status Indians and Métis unjustifiably violate s.15?
Holding
No.
Ratio
[reasoning not important for this summary]
The majority agreed with Lovelace’s point that s.15(2) shouldn’t be used to defend a special program when
used when a group is challenging the program for underinclusiveness.
Iacobucci J talked about the relationship between s.15(1) and s.15(2).
 He said s.15(2) was an interpretive aid to s.15(1), indicating that it is normal for s.1 to include this
kind of program.
 (s.15(2) should not be seen as just an exemption or a defence against a s.15(1) analysis.)
 Therefore, affirmative action programs can be subject to the same s.15(1) analysis that would be
applied to any other program.
Antaki
 So it seems that s.15(2) is more or less incorporated into s.15(1).
1. Hogg says that s.15(2) provides an exception to the general prohibition of discrimination under s.15(1),
making it unnecessary to use s.1 to justify such a program.
2. Prof. Sheppard says that s.15(2) was put into the constitution because the affirmative action debate was
raging at that time.
3. Prof. Sheppard says the best affirmative action programs are those that change institutional norms rather
than keeping the same norms and making exceptions.
Is s.15(2) merely an interpretive aid providing conceptual dept to equality? Yes. Arguments on dignity exist on either side.
o S.15(2) as interpretive aid  conception of equality is that it is an important part of maintaining true
equality. Substantive equality rather than formal.
o S.15(2) could be considered as an exemption  acknowledges the affirmative action are against the idea of
equality. (formal equality focus). Not used by the court in this case. Were it to be use, according to
Iacobucci, s.1 would be redundant.
Antaki question  if it was not an exception and is intuitively obvious to judges, then why was it included at all.
 Argument that the inclusion of “equal benefit” and s.15(2) tempers Pedder’s claims.
Page 61
Constitutional Law: 2004-2005
Kirk Shannon
Sometimes the best approach is to “take a step back” and ask: Does this create some substantive unjustice or unfairness, in
light of the group’s situation in society?
o e.g. in Vriend and Eldridge as opposed to Law and Lovelace.
Post - Law
The SCC has recognized four “analogous grounds” of discrimination:
 citizenship (Andrews)
o the court emphasized lack of political power.
 sexual orientation (Egan)
o La Forest J (and three others) emphasized immutability.
o Cory J (and three others) focused on historical disadvantage, stereotyping and prejudice.
 marital status (Miron v. Trudel)
o McLachlin J emphasized individual dignity and freedom, historical disadvantage and prejudice, and nearimmutability.
 off-reserve Aboriginal status (Corbière)
Q: Language Rights – s.16-23
A. Braën, “Language Rights” (1987) (CBp.1222)
 The British government’s 18th-century treaties, acts, proclamations, etc. did not address language, but functional
bilingualism began almost immediately after the conquest of Quebec.
 The Act of Union, 1840 made English the single official language, but official bilingualism was restored by the United
Parliament in 1848.
 Inspired by the Laurendeau-Dunton report, New Brunswick adopted official bilingualism in 1968, and the Canadian
Parliament adopted the Official Languages Act in 1969.
 In 1977, Quebec introduced the French Language Charter, making French the only official language of legislation, of
the administration of justice and of public administration, but court challenges have somewhat reduced the scope of this
law.
P.A. Coulombe, “Language Rights in French Canada” (1987) (CBp.1222)
 Community rights such as Quebec’s Bill 101 are often perceived of as illiberal attacks on universal moral rights that
protect autonomy

(p. 1225) “The rationale for state intervention in linguistic matters is no different from the rationale for intervening in
matters such as social welfare, education, the environment and security: market forces benefit the powerful and are
incapable of sustaining linguistic minorities and of fostering proper relations b/n the various language groups of a given
polity.” This seems to be an anti-liberal statement as it goes against values of individual freedom.
 Critique: Strong language rights pose a danger to individual freedoms.
 A minimum concept of language rights can be called “negative language rights”: not interfering with people’s right to
use the language of their choice, and not discriminating on the basis of language.
 Coulombe is arguing instead for a positive form of state language planning in Quebec. He points to the fact that English
has historically been seen as the language of prestige, to the demographic decline of French Quebeckers, the high rate
of emigration from Quebec, and the tendencies of immigrants to learn English rather than French (although he
acknowledges that this is changing).
s.133
 ss.16-23 of the Charter deal with language rights.
1. s.16 makes English and French official languages, equal in status and use in Canadian government
institutions.
2. s.16.1, added enacted in 1993, consititutionalized bilingualism in New Brunswick, including educational
and cultural institutions
 The “symmetry” of ss.16-23 is problematic:
1. Anglophones in Quebec are not a vulnerable minority, threatened with assimilation, as are francophones
in other provinces.
 In Quebec, language divisions also have class dimensions.
Page 62
Constitutional Law: 2004-2005
Kirk Shannon


The majority in Quebec is a minority in the country, on the continent, and in all nine of the other
provinces.
Also s.2(b) and freedom of expression.
Antaki
o Tensions exist b/n these different provisions? How can they be read together or work together
o See CBp. 1224 and Coulombe article  rational for state intervention in linguistic matters it is the same as the
rational for matters such as social welfare, education, the environment ….etc.
In Jones v. AG New Brunswick the court made it clear that s.133 set down minimum constitutional protection of language
rights but the parl and legislatures were free to add additional obligations. (limitation  RULE OF LAW)
o CBp. 1228  CCL authors mention Jones that s.133 lays down minimum requirements but that parl can go further
In Devine v. AG Quebec the court held that the Charter of the French was valid as was under the jurisdiction of the province
 incidental effects on T&C
In Manitoba Language Reference [1985] the court held that the Manitoba Act (entrenched in Manitoba) and its provisions
on language took precedence over provincial legislation. All legislation in the province would have to be deemed invalid as
gov’t had steadily ignored court rulings that it must be in French and English. Court delayed judgement for translation. (NB
RULE OF LAW as there was a limitation imposed by constitution like act).
Section 23
Mahe v. Alberta
Jurisdiction
[1990] SCC – Dickson CJC
Facts
Parents complain that there is not a separate Francophone school board such that they do not have
management and control over Francophone education. There are francophone schools but they are not
under a separate board. Lack of management and control, it is claimed, is a violation of s.23.
Issues
Under Charter s.23, should parents have a measure of management and control of the francophone
schools in Edmonton.
Holding
Yes
Ratio
1. This was the SCC’s first major interpretaton of s.23. Characteristically, Dickson CJC set out a test
including considerations of purpose and context.
 Purpose: to promote and preserve the two official languages and their respective cultures. (Dickson
CJC emphasizes the link between language and culture.). More than a mere means of
communication.
 A second, remedial purpose: remedying the historical problem of the erosion of minority language
rights.
 Dickson CJC casts doubt on earlier, narrower interpretations of language rights by Beetz J.
Notes
Context: Dickson CJC said that s.23 should be interpreted as a general right to minority language
instruction, qualified by minimum numbers requirements. He supports a “sliding scale” approach.
Depending on numbers, s.23 would justify separate classes, separate schools, representation on a school
board, or a whole separate school board.
1. The right to receive minority language instruction depends on you being in a community with
other people with the same right.
2. Dickson CJC refrained from attaching numbers to the sliding scale, but he described in detail
situations where minorities should have special representation on majority-language school
boards.
3. Issues of Judicial deference and Sajo and Schmitt perpetuation of a people (see study group
notes)
Prof. Sheppard finds this case fascinating to compare to equality rights cases on adverse effects
discrimination.
This case is significant in terms of how to operationalize remedies: the court emphasized the need to
empowering vulnerable groups, providing them not only with education, but with representation and
control. This is innovative and complex.
Page 63
Constitutional Law: 2004-2005
Kirk Shannon

It’s interesting to compare the way language rights have affected Canadian schools to the US context, where race was the
issue. In the US, separateness was discriminatory; in Canada, separateness of schools and other institutions is used to
promote equality.
 Language and individual rights and overall 19th c. sense of the document
o Are these rights distinctive.
o They are collective rights  person’s being part of a collectivity that warrant the right.
o Involve positive obligations by the gov’t.
o Liberalism is in opposition as it deals with the abstract rights of individuals whereas there is a clear
response here that shapes the population – production of Franco children, public use of French – shaping is
anti liberal b/c it does not deal simply individual rights. It is absent the language of choice which is central
to liberalism.
 According to Schmitt, key word is “people” in democracy
 Key word for liberalism is “individual”
 So there is a push and pull here at stake in the discussion
 At stake is very survival of a people
o Tension – Conception of language as a means is compatible with liberal – right to express one’s self
Court seems to be taking a stance against the liberal interpretation of the charter  language is not just mere means of
communication (CBp. 1241) which, were it be this mere means, would be an individual right. Cultural rights are collective
and therefore anti-liberal.
Ford v. Quebec (AG)
Jurisdiction Quebec – [1988] SCC
Facts
Ford challenged the sections of Quebec’s language laws dealing with business signs, on the basis of s.2(b):
freedom of expression.
Issues
1. Does freedom of expression include the right to express oneself in the language of one’s choice?
2. If so, would such a violation be justified under s.1?
Holding
1. Yes; 2. No.
Ratio
1. “Language is so intimately related to the form and content of expression that there cannot be true
freedom of expression by means of language if one is prohibited from using the language of one’s choice.”
o One can’t separate the message from the medium. This fact is supported by the Quebec Language
Charter itself.
o The court made a distinction between language rights (in ss.16-23) and language freedoms (which
are not really covered in the Constitution), pointing out that the issue in this case was a language
freedom. Language rights deal with interaction with government and the rights to use either
language in any situation.
2. In its s.1 analysis, the court recognized that the French language is vulnerable and that preservation is a
pressing and substantial objective.
o The court also recognized the importance of language in the public domain.
o However, it found that the exclusive use of French was not necessary; a simple predominance of
French would be a more proportionate measure.
Comments
Quebec protected its legislation using s.33; later, it amended the legislation to permit English as long as
French is predominant (an example of dialogue).
Quebec anglophones challenged the law to the UN Human Rights Committee, and succeeded in part.
Antaki
o Thoughts on argument that medium can be distinguished from the message.
o Here is another dichotomy (form vs. substance and now medium vs. message)
o Response of SCC is that language colours the content.
o Argument could be that depth or value of message in commercial settings might be lower than in other
settings.
o Less contextual approach could say that there is nothing political in commercial interactions.
o To what extent is the court going to abstract from the specific of the cases at hand and look further to the bigger
picture.
Page 64
Constitutional Law: 2004-2005
Doucet
Jurisdiction
Facts
Issues
Holding
Ratio
Kirk Shannon
Appeal by Francophone parents for an order directing the provision of French-language secondary
schools in Nova Scotia. They presented evidence that assimilation was reaching critical levels, and of
delay by the government in providing such schools. The judge found that the Government had failed to
prioritize the parents' minority language education rights under section 23 of the Canadian Charter of
Rights and Freedoms. He ordered the Province to provide school facilities by specified dates.
What is the power of the courts to remedy violation of s.23?
Courts can provide novel remedies for violation of s.23 other than just contempt of court.
o Under section 24(1), the court was permitted to craft any remedy it considered appropriate and just.
The meaningful protection of Charter rights, particularly the enforcement of section 23 language
rights, permitted the introduction of novel remedies.
o He selected an effective remedy that meaningfully vindicated the appellants' section 23 rights,
bearing in mind the serious rates of assimilation and the history of delay in the provision of Frenchlanguage education.
Antaki
 Worry was province in bad faith could let numbers dwindle – attempting to force provinces to deal with them
forthwith.
 Opposition /n liberalism and democracy  language rights might provide a threat to a liberal model – contending
soverengties or polities. This does not go along with liberalism
 Distinction b/n –ve and +ve rights  do you have a right to be left alone or to be given something. Argument can
be used in favour of _______
R: Aboriginal Peoples and The Constitution
Constitutional Themes that Have entered the adjudication
o Purpose and purposive adjudication:
o S.35
o Justification (key word from both Oakes and s.35) Test that is very similar to Oakes test.
o History and relation to the past  to what extent does right historically will inform right today. Language of
existing rights.
o Frozen rights approach vs. approach to rights that can change.
o Levels of generality.  Can cast a right at different levels of generality. E.g. Rights to fish, to sustain people,
commercial…..
o Right to fish? Right to fish for sale? Right to fish for sustenance?
o What is a constitution  Does it extend to conventions and, here, to practices with relations to Aboriginal peoples
o Written vs. unwritten.
o Interaction b/n federal and provincial laws  interjurisdictional immunity, incidental effects, P&S. Case book does
not push that side of things.
o Individual vs. Collective (democ vs. liberalism).
o Analogies b/n language and aboriginal  Might not fit into liberal concept as they have to do with
preservation of a people.
o Threat of competing sovereignties. Challenged in both language and aboriginal title cases.
o Politics of recognition.
o Comparison with Gay marriage where both are a recognition of rights
o Also with Quebec and distinct society
Question: What is the gound of aboriginal rights/title which is the same question we asked with SPENDING POWER.
Question: What is the legal character of rights/title
o Idea of sui generic
o St. Catherines Milling  Usufructuary. Later cases is sui generic not usfructurary or personal.
o Fiduciary duty of the crown towards aboriginal people. ALSO DIFFICULT TO CHARACTERISE
Page 65
Constitutional Law: 2004-2005
Kirk Shannon
Perpetuation of stereotypes
o Aboriginal peoples outside of history and outside of time
o Noble savage.
These go to court and crown making sure that there is proper use on the land for future generations (sounds paternalistic).
With Cases in Mind  What are Aboriginal Rights
o Distinct from Aboriginal title
o Assertion that Royal Proclamation is source of Aboriginal rights  Discuss
 Lamer J seems to say that rights do not find source in unilateral act of the crown. Source of these
rights is that Aboriginal peoples were here before Europeans.
 Not necessariliy source of rights but source of Crown’s obligation – fiduciary obligation. Makes
the crown the privileged actor.
 Places the Crown in b/n private individuals and Aboriginals.
 Another key element is that there must be some public meeting or assembly before alienation.
o Difficulty in this area of law is way recognition and paternalism are combined in some way. Crown meant, in some
way, from themselves (through use of land).
o Paternalism from levels of civilisation concept and these leading to different conceptions of what empowerment for
Aboriginal peoples might be.
With Cases in Mind  What is Aboriginal Title
o Distinct from Aboriginal rights  Sometimes thought to be subset of Aboriginal rights…..but courts recgonise
unique attachment to the land. This would make one think that title is primary.
o Land brings up key background issue that is hard to work through  Is there a myth or stereo-type about being an
Aboriginal person that is perpetuated in the cases. Concept of temporality and the “historicity” of the human being.
Being brought into the current era. To what extend is there a tendancy to locate aboriginal peoples in the past.
o Concept of the Noble Savage in the judgments?
____________________________________________________________________________________________________
Excerpt from Canada, Royal Commission on Aboriginal Peoples – “Restructuring the Relationship” [1996]
 CBp. 522 “ The laws of Canada spring from a variety of sources both written and unwritten, statutory and
customary…..
____________________________________________________________________________________________________
Guerin case builds on Calder v. B.C. that dealt with the Nisga’a
 overview pre s.35 of Constit Act 1982
 The Calder case is the single most important event to change the idea of what aboriginal rights were. After the
Royal Proclamation, the Crown had entered into a series of treaties with FN. In general, FN gave up rights to land in
return for reserve lands and other concessions. However, large parts of Canada were never subject to treaties (especially
in BC and northern QC). Aboriginal people claimed that they had never given up their rights to the land, and so it still
belonged to them in spite of white settlement.
 This case came out of BC – aboriginals claimed that aboriginal rights were never extinguished and therefore the land was
owned by them. The argument against them was that the Crown had asserted sovereignty over the land and affirmed it
through legislation. The aboriginal rights were inconsistent with the assertion of sovereignty.
 >> 3 judges SCC found that the aboriginal rights were part of common law, could be adjudicated by the Canadian
courts, that the Nisg’as had aboriginal rights but that they had been extinguished. 3 judges said that the rights were
never extinguished. There was no clear intent to extinguish rights in the legislation asserting sovereignty.
 Pigeon said that there was a procedural flaw in the case, and the SCC could not adjudicate the claim due to the flaw
(cop-out).
Guerin v. The Queen
Jurisdiction
[1984] SCC – Dickson
Facts
Lease of reserve land to a golf club in Vancouver (Shaughnessy Heights). Musqueam Band voted to
surrender the land to the Crown but claims that major terms of the lease were different than those presented to
the Band before the surrender vote. Band claims damages and breach of fiduciary duty of the crown.
Issues
Is the band able to recover damages for breach of fiduciary duty?
Holding
Yes
Page 66
Constitutional Law: 2004-2005
Ratio
Kirk Shannon
Right in the land is a sui generic right. It is not ownership. It can be described as a beneficial interest but is
not really a usufruct or a personal right.
 Nature of Indian title places the crown under an equitable obligation to deal with the land for the
benefit of the Indians—places them in a fiduciary relationship. not quite a trust, but liability arises
in the same way. Rooted in (a) aboriginal title and (b) inalienability except to the crown
 Inalienability and obligation of the Crown to deal with land on Aboriginals’ behalf when
surrendered.
 Purpose of requirement of surrender and fiduciary relationship is to prevent Indians from being
exploited.
 crown breached this by proceeding with new, unfavourable terms that the band counsel did not
approve—Breach of fiduciary duty which is, in it, paternalistic.
 Detrimental reliance, unconscionability, estopped from going back. Oral terms are not incorporated
into the surrender doc. They form the backdrop.
 Only deal with private law issue and not the oral representation as part of a culture that relies more
on oral tradition than written. Perhaps b/c it is not a treaty but rather a new agreement.
Court saying that it is not a private nor a public law duty. Difficulty of Canada recognizing sovereignty
within its own borders. Defined in US as “Domestic dependable nations within its own borders.” Similar
problematic issue.
Does the fiduciary duty (a) impede self-sufficiency and (b) replicate dependency?
Note
Antaki
o Nature of fiduciary duty
o Evidence in light of this fiduciary duty  to what extent it characterises into a private law language.
 s.35 rights are not part of the charter. S.35.1 : existing aboriginal and treaty rights of the aboriginal peoples of Canada
are hereby recognized and affirmed.
 35.1 was a last minute addition to the Charter. Nobody knew what it meant because aboriginal rights/title had not really
been defined. So it fell to the courts. First major case on aboriginal rights, and thus the first opportunity to delineate
rights, was Sparrow.
S: Constitutional Entrenchment of Aboriginal Rights
R. v. Sparrow
Jurisdiction
Facts
Issues
Holding
Ratio
SCC [1990]
S, a member of the Musqueam Band, was charged under the Fisheries Act for using too long a drift net. He
claims he was exercising an aboriginal right to fish.
What is the scope of s.35(1)?
It places the burden on the government to justify the infringement of any aboriginal rights, which are
themselves rooted in the pre-existence of aboriginal peoples.
Dickson and LaForest
“Existing”: premised on the idea that, despite recognition in RP 1763, Crown has always had the power to
extinguish aboriginal rights, if it chooses to do so.
o Extinguished rights are not revived, but it does not subsume the precise manner in which a right was
regulated.  rejection of ‘frozen rights’. Taking of salmon was an integral part of the lives of the
Musqueam, and remains so, therefore it is their aboriginal right to do so.
o It was not extinguished by the Fisheries Act, regulation ≠ extinction; sovereign’s intention must be
clear and plain if it is to extinguish an aboriginal right.
o Note pre-1982 there was no consent needed for extinction of right.
Scope of the Right: subsistence, social and ceremonial activities. Crown policy cannot delineate the content
of the right, it can, however, limit its exercise, but that limit must be consistent with s.35(1).
“Recognized and Affirmed”: s.35(1) must be construed purposively: Nowegijick v. the Queen [1983] 
liberally construed, and ambiguity resolved in favour of Indians. Guerin and R. v. Taylor (1981): fiduciary
relation.
Page 67
Constitutional Law: 2004-2005
Kirk Shannon
o
Even though s.1 does not apply, the crown is still entitled to a justificatory process that avoids both
extremes of entrenching past regulations and entrenching absolute unrestricted exercise of aboriginal
rights.
1) If legislation has effect of infringing a right, it’s a prime facie infringement of s.35(1). The onus is on the
individual challenging the law.
2) If so, is that infringement justified? (this whole section is read in)
a) Is there a valid objective? Conservation counts, as does prevention of harm to general population or
to aboriginal population
b) Is the trust relationship being respected? (Guerin)
c) Minimal impairment
d) consultation? (c and d are a means test)
e) Fair compensation? (Here, that required that Musqueam interest trump all but conservation in the
allocation of fisheries resources)
 retrial to establish if (a) the net length requirement is a prima facie infringement and (b) whether that
infringement is consistent with s.35(1)
In s.1 case, court is going to speak for society at large. But in these cases, will speak for society at large but
also the fiduciary duty.
Difference
b/n s.1
Antaki
o Looks at the question in CCL which looks at the legitimacy of gov’t action. (CBp.545). They actually mean
legality. They are blurring the lines b/n LAW AND POLITICS!!!
o How is the idea of legitimacy tied to the honour of the crown. This is brought up in this case.
o Relationship b/n limitation, extinction and consent, consult. Seem that the greater the limitation, the more
consultation and then consent is needed.
o Possible counter argument against the support for use of s.1 rather than this idea of this test and fiduciary duty would
be that it puts a larger onous on the Parl to justify certain things.
o Antaki thinks that the tool of fiduciary duty in litigation is absolutely essential. Needed as then there is an inequality
at the bargaining table.
R. v. Van der Peet
Jurisdiction
SCC [1996] – Lamer CJC
Facts
D (member of the sto:lo) sold fish that were caught under the authority of an Indian food fish license
contrary to B.C. Fishery regs. Claims these regs violate s.35(1) of Constit Act.
Issues
Do Fishery regs violate s.35(1)?
Holding
Ratio
 Argument that C.A. erred b/c it defined aboriginal rights through the identification of pre-contact
activities rather than pre-existing legal rights.
 To identify the purpose of the provision, must look to the rationale and foundation of the recognition and
affirmation of the special rights of Aboriginal peoples.
 A purposive test for Aboriginal rights: “…in order to be an aboriginal right an activity must be an element
of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the
right.” (Why purposive see CBp. 546)
 Considerations included in the INTEGRAL TO A DISTINCTIVE CULTURE TEST:
1. The perspective of Aboriginal peoples themselves
 However, “…the perspective must be framed in terms cognizable to the Canadian
legal and constitutional structure.”
 Relationship with Aboriginal peoples to the land
2. The precise nature of the claim being made
Whether a practice, custom or tradition is of central significance to the Aboriginal society in question
(Sounds like core periphery)
 This means that one must demonstrate “that the practice, custom or tradition was one
of the things which made the culture of that society distinctive—that it was one of the
things that truly made the society what it was.” (again this deals with the idea of
core)
3. Whether a practice, custom or tradition has continuity with practices, customs or traditions
Page 68
Constitutional Law: 2004-2005
Kirk Shannon
that existed prior to contact
 Lamer CJC claims that this is not the same thing as “frozen rights,” because it allows
for practices, customs and traditions to evolve into modern forms, provided there is
some continuity with pre-contact times. The continuity doesn’t necessarily need to be
unbroken.
4. The evidentiary difficulties inherent in adjudicating Aboriginal claims
5. Whether a practice, custom or tradition is important to the specific group claiming the right
6. Whether a practice, custom or tradition is “of independent significance” to the culture, and
not just incidental to another practice, custom or tradition
7. Whether a practice, custom or tradition is “distinctive” (and not necessarily “distinct”) –
this is a claim that the custom must make the culture what it is. (seems like a very strict
requirement).
8. Whether a practice, custom or tradition is only integral to a culture because of European
influence
9. Whe relationship of Aboriginal peoples to the land and the distinctive societies and cultures
of Aboriginal peoples
Lamer CJC held that Van der Peet did not have an aboriginal right to sell fish, because the exchange of fish
was not a distinctive part of Sto:lo culture; it was just “incidental” to other aspects of Sto:lo culture.
Dissent
 L’Heureux-Dubé J, dissenting, preferred an “abstract” approach, rather than focusing on the particular
practice, custom or tradition in question. s.35(1) does not protect “a catalogue of individualized practices,
traditions or customs”; it protects Aboriginal cultures as a whole.
 L’Heureux-Dubé J disagreed with Lamer CJC’s requirement of continuity with pre-contact culture,
considering it arbitrary and calling it a “frozen rights” approach. She preferred a “dynamic rights”
approach, permitting cultures to evolve and adapt. She uses the Métis as an example of the inadequacy of
a pre-contact requirement.
 “The determining factor should only be that the aboriginal activity has formed an integral part of a
distinctive aboriginal culture – ie to have been sufficiently significant and fundamental to the culture and
social organization of the aboriginal group – for a substantial continuous period of time…”
Dissent
 McLachlin J, dissenting, argued that the law has historically recognized Aboriginals’ right to sustain
themselves from the land and waters, and to trade as far as necessary to sustain themselves. She argued
that ancestral rights may be exercised in modern forms.
 Lamer’s test is said to be overbroad as words distinctive, incidental encompass many non-vital actions.
 Lamer: Aboriginal rights as falling outside the liberal document of the Charter (as mentioned by Lamer CJC at CBp.
546). These are not liberal rights as they do not focus on the inherent dignity of each individual in society. Instead,
their existence is based on the fact that the subjects of these rights are aboriginal – ie membership of a group. (How
does this fit with s.15 which also basically requires membership of a group.)
There seems to be a more frozen rights in Larmer’s decision. More abstract approach is needed according to L’HD.


Prof. Sheppard said that Lamer’s judgment can be taken as the current state of the law.
Would self-government be an Aboriginal right under s.35(1)?
1. Prof. Sheppard thinks that the Van der Peet test would uphold the right to self-government. But there would still be
an issue of defining the scope of self-government.
Interesting here is the contrast with Anselem which made sure the court did not look into specific religious practices whereas
here they are look (as a central evaluation) at the practices and customs of a Band in order for it to be considered a protected
Aboriginal right.
R. v. Gladstone
Jurisdiction
Facts
Issues
Holding
Ratio
SCC [1996] – Lamer CJC
Member of the Heiltsuk Band charged with attempting to sell Herring spawn without a proper license.
Is this a violation of s.35(1)
Yes – commercial sale or barter of herring spawn on kelp to be an Aboriginal Right.
o Lamer CJC applied the test in Van der Peet, and found that the sale of herring spawn on kelp
was a distinctive feature of Heiltsuk society.
o Lamer CJC held that there wasn’t enough evidence to determine whether an infringement had
Page 69
Constitutional Law: 2004-2005
Kirk Shannon
been justified. He recognized (in the abstract) the overwhelming importance of conservation,
both to Aboriginal groups and to Canada as a whole. He went on to say that, once conservation
goals had been met, various other criteria could justify infringement of Aboriginal rights, such
as “economic and regional fairness” and the historical fishing practices of non-Aboriginal
groups.
Haida Nation v. B.C. (Minister of Forests)
Jurisdiction
SCC – [2004] – McLauchlin CJC
Facts
Tree farm license given to forestry firm on land for which title is claimed by Haida. Haida has claimed
title on this island and surrounding waters for over 100 years. Tree farming license was transferred to
new company in 1999. From 1994 on, Haida have contested the license and contested the transfer.
BCSC said their was no legal duty to consult the Haida, only a moral one. CA reversed this.
Issues
Is there a legal duty to consult the Haida regarding tree farming licenses on the island of which they
claim title?
Holding
Government must consult in good faith. Private company has no duty to consult.
Ratio
While the asserted but unproven Aboriginal rights and title are insufficiently specific for the honour of
the Crown to mandate that the Crown act as a fiduciary, the Crown, acting honourably, cannot cavalierly
run roughshod over Aboriginal interests where claims affecting these interests are being seriously
pursued in the process of treaty negotiation and proof.
o The foundation of the duty in the Crown’s honour and the goal of reconciliation suggest that
the duty arises when the Crown has knowledge, real or constructive, of the potential existence
of the Aboriginal right or title and contemplates conduct that might adversely affect it.
o Consultation and accommodation before final claims resolution preserve the Aboriginal interest
and are an essential corollary to the honourable process of reconciliation that s. 35 of the
Constitution Act, 1982, demands.
o The Crown is not under a duty to reach an agreement; rather, the commitment is to a meaningful
process of consultation in good faith.
o The scope of the duty is proportionate to a preliminary assessment of the strength of the case
supporting the existence of the right or title, and to the seriousness of the potentially adverse
effect upon the right or title claimed.
o Finally, the duty to consult and accommodate applies to the provincial government. At the time
of the Union, the Provinces took their interest in land subject to any interest other than that of
the Province in the same. Since the duty to consult and accommodate here at issue is grounded
in the assertion of Crown sovereignty which pre-dated the Union, the Province took the lands
subject to this duty.
The strength of the case for both the Haida’s title and their right to harvest red cedar, coupled with the
serious impact of incremental strategic decisions on those interests, suggest that the honour of the Crown
may also require significant accommodation to preserve the Haida’s interest pending resolution of their
claims.
Framework for infringement
1. Was there a right?
Sparrow, Van der Peet
2. Was it extinguished?
3. Does legislation (or regulation) infringe right? (onus on person challenging legislation)
>> “unreasonableness, undue hardship, etc.”
4. Is the infringement justified? (onus shifts to government)
>> objective of the legislation
- compelling and substantial yes
- public interest no
>> justification of the legislation
- “honour of the Crown”/ fiduciary duty
- valid internal limitation? Governmental priorities
- if there is no internal limitation - R v. Gladstone
Page 70
Constitutional Law: 2004-2005
Kirk Shannon
Delgamuukw v. B.C.
Jurisdiction
SCC [1997] – Lamer CJC
Facts
51 Chiefs bring a claim of aboriginal title and self-gov’t to a region of B.C.
is the land claim valid?
Issues
Holding
Trial judge rejected the claims because he did not give credence to oral history. A new trial was ordered
because of the importance of recognizing different methods of recording history. Court explains how to
establish aboriginal title.
Ratio
o Aboriginal title is sui generis. It confers the right to use land for a variety of activities, not all of
which need be aspects of practices, customs and traditions which are integral to eh distinctive
cultures - rather, they are parasitic on the underlying title.
o The source is fact of prior occupation. You have to establish your claim relevant to the period
leading up to sovereignty.
o This is the cut off because at the moment of sovereignty the crown assumed title of the land.
Since aboriginal title is a burden on the Crown title, so long as you can establish your title to the
land before the Crown could, you had a case.
o It’s more generous than rights because it can survive contact. Treaty of 1846 established control
over BC. Land is held communally.
o Content: exclusive use and occupation of land, which cannot be incompatible with the
attachment to the land.
o Examination of content (exclusivity with inherent limit (which deals with paternalism)),
protection by s.35, proof (what counts as occupation, how is continuity demonstrated.
 Three big questions on aboriginal claims:
1. what’s the relevant time?
2. what are the limitations on the use of the land?
3. what kind of justifications are there for limiting title?

Hogg: there are 4 important differences between Aboriginal title and common law title to land:
1. Aboriginal title is pre-sovereignty occupation, and common law is based on post-sovereignty of the crown
2. Aboriginal title is only alienable to the Crown
3. Aboriginal title can only be held communally, which necessarily entails mechanisms within the community to
decide how the land will be used, which is an aspect of self-government
4. Aboriginal title is constitutionally protected. My title to my house is not entrenched in the constitution. It can be
taken away tomorrow by legislation. Prior to 1982 Parliament could extinguish aboriginal title if it had a valid
reason or clear intent, but provinces couldn’t because you need clear intent and if provincial legislation had clear
intent it would be ultra vires because of division of powers. Post-1982 any infringement of aboriginal title must
satisfy 35.1 and Sparrow.
Page 71
Constitutional Law: 2004-2005
Kirk Shannon
REVIEW OF DA WHOLE TING
Entrenchment and Amendment
 Constit as something entrenched
 Must go through amendment form to be changed
o Different from organic sort but not entrenched in the formal sense
 Formal methods  asked how is this idea of a forma change (amendment form) fit within our idea of developing
constitution and living tree
o Sanky’s idea of a living tree
 To what exten are formal amendment procedures democractic?
Instruments of flex
 Instruments that allow flex beyond the written word.
o What is meant by flex
o Why would it be necessary
 Broader role of state in social policy (welfare state no requires flex)
 Modalities of flex
o Intergov
o Delegation
o Spending power
 Justiciabiilty  why no answer to ground and scope of spending power
 Don’t have great amounts of material but good things to have in minds for broader questions
Schmitt and Sajo
 Secession ref ideas are broght up
 Loss of prestige of parliament and parliamentarism. Could substitute legitimacy for prestige.
o 19th c Parl – free exchange of ideas going towards truth
o with advent of mass democracy leads to lack of free exchange of ideas
o move to this nuew era where interest groups assert their will
 Schmitt  disaggregate liberalism and democracy (attempts
o Now, when think of democ we think of liberalism
o Disagregation is key
o Democ key concept is the people. This is diff from liberalism. Liberalism is focused on the individual and
seeks to limit the state.
 Attempt to think through key terms in the course (democ, liberalism, parliamentarism, legitimacy)
Antecednts of Charter.
 Red book authors asking how new was the charter really? To what extent were purposes and aims of the charter
refleted in pre-charter
 Tradition of British constit
o Roncarelli - to what extent is language of rights visible or prominent and to what extent do rights do the
legal work?
 Use of Federalism to limit state power.
o Federalsim and race cases
 See SCC and red book struggle with s.91(25) to what extent provincial laws are ultra vires to
protect rights
o Implied Bill
 Analogous to fed cases. Use of criminal law power. Still looking to division of powers.
 Q: Degree to which the courts are willing to say, even Parl cannot do certain things.
 Use of ordinary legislation  bill of rights.
o Not entrenched.
 Three antecedents – how new is the charter really? Force us to look carefull at what charter revolution really was.
How deeply entreched were these antecedents. Ask the question….but don’t answer.
Structure of Charter
 Key words
Page 72
Constitutional Law: 2004-2005
Kirk Shannon
o




Which rights are guaranteed to everyone
 S.2, s.7, s.15 subject to notwithstanding
o To citizens
 Not subject to s.33
o S,1 has key role.
S.1 and s.33 limit rights but in radically different ways.
Language provision
S.24 and enforcement
S.32 and application  to whom does it apply?
Advent of the Charter
 What happened when came on the landscape
o Democ vs. constitutionalism
 The legitimacy of judicial review

Who ought to be making the decisions (judges or elected)
o Canadian Ntl unity and charter
 Not just their to protect rights, but as a symbol of unity which brings up the question of Quebec
and how it was or was not included.
o Petter – 19th C liberal……
 Think about – very important to Petter that it costs money to go to courts.
 Compesition of judicial is critical to Petter.
 Even inclusiong of s.1, s.15, s.28 might not temper Petter b/c of sociological backdrop.
o Hogg  Dialogue
 Important in legitimacy as courts do not have last word. Less of legitimacy worry.
 Certain features of charter that will facilitate dialogue (s.33, s.1, other qualified charter rights (s.7)
and equality rights)
 Therefore, has less problem with legitimacy and think dialogue will be beneficial to democ
 HR language is also in backdrop
Framework
 Purposive in Hunter.
o Is the word purpose in purposive approach diff from use of purpose in federalism cases?
o Relation b/n purposive approach and liberalism approach. Tendency of courts is to tie with word generous.
What work is being done by the word purposive approach
 Oakes
o 2nd part of s.1. (don’t for get prescribed by law first)
o Judicial assessment of importance of legislature’s objective. (also think purpose in terms of language)
o Analysis of proportionality
 Rational conection
 Minimal impairment (do the means chose impair as little as possible…
 Dagenais modification to balancing of effects.
 Wilson separate but concurring opinion in Edmonton Journal
o Contextual approach in opposition to abstract approach
o In both cases, must identify the values the guarantee is designed to protect (purposively) and then objective
of the legislature. So what’s the diff? Weighing of values differently?
 Same-sex
o Division b/n law and politics – should court even answer question (justiciability)
o Language of living tree
o Politics of recognition. (symbolic recog…..)
Enforcement
 Promiance or importance in the theory or dialogue
 Options of enforcement will change dialoge. If courts can robustly enforce, then not throwing back to legislature. If
can read in, not going to throw back. This affects dialoge.
 Distinguished s.52 and s.24
Page 73
Constitutional Law: 2004-2005
Kirk Shannon
S.52 – unconstitutional (no force and effect).
 Law is declared unconstitutional
 Law itself must be problematic
o S.24 – enforced in an improper way
 Possibility of damages and injunctions
 Declaration that your right has been enfringed.
 Court of competent jurisdiction.
Kinds of factors that influence remedies
o Dialogue
o Budgetary implications may constrain. If there are majore implications and judges reign themselves in, less
probs with LEGITIMACY
Courts will to read in terms.
o Vriend  Dissent says pretty clear Alberta is opposed and prmotes suspension of invalidity.
o Little Sisters  Law on face is valid. At what point does arbitrary enforcement of a law become
problematic for the law itself. Iacobucci’s dissent says should hold the law invalid instead of assuming it
works.
o


Admin Tribunals
 Not on exam unless can bring it in….
Application (essential to be able to use legal propositions)
 To whom does charter apply?
 Dolphin  charter does not apply directly to private actors
 McKinney  just b/c creature of statute does not mean charter applies to you.
 Petter  Charters reinscribes public private divide of 19th c
Limitation
 Oakes
o
o
o
o
s.2(a)




Moon
o
o
Big M
o
Vagueness and prescribed by law. Vagueness and Minimal Impairment.
Not much time spent.
Most will succeed in passing
Re-look at Oakes
 Subsequent to Oakes under heading of Context and Deference. So, to what extent is greater
importance of context is a way in which limitations on rights can be more easily upheld.
 Dagenais modification of Oakes. Look to salutary. To what extent is this modification a response
to Wilson in Edmonton Journal
Argu: Transformation from freedom of religion into freedom of conscience. Individual liberty found in
freedom of religion. No longer religious truth that requires no religious coercion.
Sensitive to synonmy. Purpose and objective. Autonomy, liberty and freedom.
Purpose of law explitly religion  purpose cannot shift over time for s.1 Oakes test. Must entertain
Original purpose
Edwards Books
o Effects and s.1 are focus.
Childrens’ Aid Society.
o Different judgments. Some more willing to pit rights of child against right of parents. Threatening of
safety of the child are not protected.
 Other possibility was generous under 2(a) and then uphold limitation under s.1
 IMPORTANT  division of labour b/n s.1 and s.2(a)
s.2(b)
Page 74
Constitutional Law: 2004-2005





Kirk Shannon
Three justifications  integral to political democ (Parliamentarist), search for truth, self realization of listener and
speaker (self-fulfillment)
Irwin Toy
o Intro idea that maybe commercial expression is of lesser VALUE
o Social scientific evidence. To what extent will require this eveidence or to what extent give deference.
o Deference for protection of vulnerable groups.
Keegstra and Butler
o Issue of social scientific evidence
o Effort of court to be a-moral of expression. Not to say this is more and less worthy and Laguage of HARM
does more work. Struggle to stay away from language of morality (sometimes letting it in)
McKinnon and West
How different underlying principles of the charter are interconnected. Dickson in Oakes. Same values and
principles that lead to the rights, lead to decision to limit rights. Here, think of what principles are allowing limits
(compare with Children’s Aid Society)
s.7





Two fold backdrop.
o American debate over substantive due process. Not just how the legislature but what can it take away
o Natural justice.
Morgentaler
o Tenstion b/n substantive and procedural due process. To what extent and which judges focus on procedure
and others focus on substance (Wilson)
Rodriguez
o Tension b/n policy and principle.
 How is it that suicide is not criminal but assisting is
o Dignity comes up which will prove so crucial in equality cases.
New Brunswick case
o Must Articulation of claim in terms of psycho damage. That description itself does violence to the parentchild relationship.
o Think Children’s Aid – relgion and individual choice and not.
Right to state-funded counsel. Justiciability of poverty. Excerpt from CCL.
o Feminisation of poverty from L’Heureux-D
s.15







Andrews to Law
Does Andrews test really reflect Andrews case.
In law, tries to flesh out, what is discriminatory bringing in dignity. Not enough that there is deferential treatement.
What you need is the benefit to be denied that reinforces stereotype that fucks with dignity.
o Reasonable person test. Not enough that you as a singular individual but must be reasonable individual
would belive that.
Adverse effects discrimination
o Opposed to federalism where look at purpose is determinative. Here, even if purpose is fine on its face,
effects still can make declared invalid if required.
o Sheppard: Importance of focus on effects. Should not have to be an intent to discriminate.
Idea of a statistically disproportionate impact. Court not willing to go very far in that area.
o Group not effected in same way. Eldridge Whole group is discriminated in same way.
o Could have other cases where members of group suffer in different way (example of Standardized tests)
Analogous and enumerated grounds.
o Must articulate claim in language of analogous and enumerated ground.
o Recog’d sexual orientation, marital status, off-reserve status
o What would future grounds be dependant on? IMUTABILITY – how does this effect
Lovelace
o 15(2) and carving out an exception? NO.
o Still possibility of some being left behind by the program that reinforces stereotypes or demeans dignity or
in a way that leaves you whole.
Page 75
Constitutional Law: 2004-2005
Kirk Shannon
Exam:
(%30) Character of Constitutional Adjudication under Charter v.s under federalism comparison.
(%40) Structure of Charter as a whole. Debates spoken of s.1 and work of others.
(%30) Excerpt must read and comment on.
Adverse effects reminded in 1st half.
Page 76