Judicial Review on Federal Grounds: PITH & SUBSTANCE - Ch. 15 (p. 5)I. Matter/Pith & Substance : First, find the most important characteristic of the challenged law, even if it has aspects

affecting both Federal & provincial classes of subjects. Second, what class of subjects does the matter fall under – s. 91(Fed) or s. 92(Province)? a. Look at the Purpose/Effect of law : When trying to determine the most important characteristic, look at the

real purpose and effect of the law. You may think that the province can regulate this area, but the true purpose or the effect of the law may be to regulate a Federal class. When the law hides its real purpose = Colourability Doctrine.

b. Look at what class of subjects law regulates vs. incidentally affects : While looking for the most important feature of the law, it will be noticed that a valid Provincial law in relation to a Provincial matter may validly affect Federal matters, b/c the most important feature of the law falls under Provincial power and simply incidentally affects Federal matter.

c. Can the law be enacted/regulated by both heads of power?: This leads to the Double Aspect Doctrine, which states that some laws that have a double aspect can be validly enacted by either Province or Federal, when the contrast of the importance of the two features is not so important.

i. Exception: A valid Provincial law cannot impair the status/essential power of a Federally incorporated company, or affect a vital part of a Federally regulated enterprise = Singling Out.

II. Assign Matter to a Class of Subjects – Exclusivity of s. 91 & s. 92 lists doesn’t mean that similar or even identical laws may not be enacted by both levels of gov’t – b/c some laws have a double aspect, or two matters. a. Does one head of gov’t encroach on the power of the other head of gov’t ? This exemplifies the Papp v. Papp

“rational connection” principle, which states that a Provincial law (or Fed), held to be in relation to a matter coming within a Provincial class of subject, can have a valid incidental effect on a matter within Federal jurisdiction. This applies to minor encroachments. For major encroachments, a stricter test of “truly necessary/essential” is appropriate.

b. Can the law be regulated by both heads of power ? Double Aspect Doctrine. c. Does the law fall into a Concurrent category that can be regulated by both? 92(A)2 Power for Prov

Legislature to make laws in relation to export of natural resources – this is concurrent with Fed’s Trade & Commerce Power. S. 94A gives Fed power to make laws in relation to old age pensions – concurrent w/ Prov power. S. 95 gives both Fed & Prov concurrent power over agriculture & immigration.

d. Exhaustiveness: Federal Residual Power = s. 91 POGG. Provincial Residual Power = All matters of merely local or private nature in the Province, fall under “Property & Civil Rights.”

III. Remedy : What do you do when one head of gov’t is trying to regulate an area that is ultra vires? GR: A law that purports to apply to a matter outside the jurisdiction of the enacting body may be attacked 3 ways: (1) validity of the law, (2) applicability of the law, (3) operability of the law. a. Invalid: Argue that law is invalid b/c matter (p&s) comes w/in a class of subjects that is outside the

jurisdiction of the enacting body. Validity depends upon the characterization of the law. b. Inapplicable (IJ): Acknowledge that a law that purports to apply to a matter outside the jurisdiction of the

enacting body is valid on most of its applications, but argue that the law should be interpreted so as not to apply to the matter that is outside the jurisdiction of the enacting body. Technique = Reading Down.

c. Inoperative (Paramountcy) Inconsistent Fed & Prov laws, Fed law prevails. Prov law inoperative to the extent of the inconsistency.

d. Interjurisdictional Immunity/Applicability : Usually seen when Provincial law is trying to regulate Federally-incorporated companies. If it has a serious effect, the law will be read down to exempt federally incorporated companies.

i. Current Rule from Canadian Western Bank: If a Prov law merely affected (w/o having an adverse effect on) the core of a Fed subject, then the IJ doctrine didn’t apply. Only if the Prov law would “impair” the core of the Fed subject, would IJ apply & law will be read down to exclude Fed activity.

ii. Previous rule from Irwin Toy working off of previous Bell 1988 rule: Where a Prov law had only an “indirect effect” on the Fed undertaking, the law would be inapplicable only if the law impaired a vital part of he undertaking. An indirect effect falling short of impairment, even if it affected a vital part of the undertaking, would not render the Prov law inapplicable.

e. Paramountcy: Where there is conflict between valid federal and provincial laws, the federal law takes precedence. Provincial law is rendered inoperative to the extent of the inconsistency.

i. Triggered when: (1) Provincial law at issue is valid; (2) Federal law at issue is valid; (3) Both laws apply to the facts; and (3) They “conflict”:

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1. Express contradiction - impossibility of dual compliance OR 2. Frustration of federal law purpose (ie Bank of

ii. NOT Conflict:1. Overlapping subject matter2. Legislative duplication (Multiple Access v McCutcheon)3. Provincial laws supplementing the terms of or adding requirements to a federal law

(Rothmans Benson & Hedges v Sask – advertising tobacco)4. Negative Implication: Mere fact that Parliament has enacted legislation regarding a subject

does not mean it intended to “occupy the field” to rule out provincial legislation absent “very clear statutory language to that effect” Canadian Western Bank

CHARTER FRAMEWORK & S. 1 OAKES TEST – Ch. 38 (p. 16)I. Does the Charter apply to the facts?

a. Is there government action (negative rights) or government inaction (positive rights)? Is a private party acting under statutory authority or under control/agent of gov’t? Is it a private party in a private matter, like a K?

b. Does the Charter apply to the claimant? i. Only Citizens can claim rights under ss. 3, 6 or 23

ii. Everyone in Canadaiii. Exterritoriality – depending if gov’t actor involved

c. Does the challenged government action interfere in purpose or effect with the exercise of a Charter right? (burden on claimant, justification burden on gov’t)

d. If so, is the interference with the right a “reasonable limit”, “prescribed by law”, that can be “demonstrably justified in a free and democratic society”? (s.1) (Oakes test)

e. If not, what is the appropriate remedy? s.24 Personal remedy & s.52 invalidity of law f. Is the court the correct forum?–Superior court always correct. Other courts and tribunals, maybe – if have

statutory authority. II. Oakes - Is the infringement justified by s. 1?

a. Criteria to determine if infringement is a reasonable limit prescribed by law that can be demonstrably justified in a free & democratic society:

i. Sufficiently Important Objective = The law must pursue an objective that is sufficiently important to justifying limiting a Charter right.

ii. Rational Connection = The law must be rationally connected to the objective.iii. Least Drastic Means = The law must impair the right no more than is necessary to accomplish the

objectiveiv. Proportionate Effect = The law must not have a disproportionately severe effect on the persons to

whom it applies.b. Sufficiently Important Objective

i. Only objectives that are consistent w/ the values of a free & democratic society will qualify.ii. The objective must relate to concerns which are “pressing & substantial”

iii. The objective must be directed to the realization of collective goals of fundamental importance.iv. Objective must be from time of enactment, not shifting objective.

c. Rational Connection : The law must be “carefully designed to achieve the objective in question,”it should not be “arbitrary, unfair, or based on irrational considerations.” Law’s means must contribute to the achievement of its objective.

d. Least Drastic Means : The law should abridge as little as reasonably possible Edwards. Requires consideration of alternatives.

e. Proportionate Effect : The law must not have disproportionately severe effect. Balancing test between the objective sought by the law vs. infringement of charter. Whether the Charter infringement is too high a price to pay for the benefit of the law?

EXPRESSION – ch. 43 (p. 21)I. EXPRESSION INFRINGEMENT ANALYSIS

a. Does the activity at issue convey a meaning in a non-violent form?b. Is the method and location of the expression consistent with the purposes underlying s.2(b) of (1) important for

democracy, (2) instrument for truth, (3) instrument of personal fulfillment (must include communicative purpose)

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c. Is the purpose of the impugned government action to control expression by reference to its content? If so, violation established

d. Does the impugned government action have the effect of suppressing expression related to seeking truth, democracy or self-fulfillment? If so, violation established.

e. If there is a violation, can the impugned law be upheld under s. 1? (Oakes)i. Sufficiently Important Objective = The law must pursue an objective that is sufficiently important to justifying

limiting a Charter right.ii. Rational Connection = The law must be rationally connected to the objective.iii. Least Drastic Means = The law must impair the right no more than is necessary to accomplish the objectiveiv. Proportionate Effect = The law must not have a disproportionately severe effect on the persons to whom it

applies.II. INFRINGEMENT ON TIME/MANNER/PLACE (Based on Montreal strip club case)

a. Does the activity at issue convey a meaning in a non-violent form?b. Is the method and location of the expression consistent with the purposes underlying s.2(b) of (1) important for

democracy, (2) instrument for truth, (3) instrument of personal fulfillment (must include communicative purpose)c. Is the purpose of the impugned government action to control expression by reference to its content? If so, violation

establishedd. Does the impugned government action have the effect of suppressing expression related to seeking truth, democracy

or self-fulfillment? If so, violation established.e. *Is it a public place where one would expect constitutional protection for expression on the basis that expression in

the place does not conflict with the purposes of s. 2(b), namely: (1) democratic discourse, (2) truth finding, (3) self-fulfillment?i. To answer this question, the following factors should be considered:

1. The historical & Actual function of a place; and whether other aspects of the place suggest that expression within it would undermine the values underlying free expression.

f. If there is a violation, can the impugned law be upheld under s. 1? (Oakes)i. Sufficiently Important Objective = The law must pursue an objective that is sufficiently important to justifying

limiting a Charter right.ii. Rational Connection = The law must be rationally connected to the objective.iii. Least Drastic Means = The law must impair the right no more than is necessary to accomplish the objectiveiv. Proportionate Effect = The law must not have a disproportionately severe effect on the persons to whom it

applies.1. **In this case the Ct found that noise from strip club coming out onto the street was communication for the

purpose of self-fulfillment, but the anti-noise law was upheld under s. 1. **

LIFE, LIBERTY, SECURITY OF PERON & FUNDAMENTAL JUSTICE – ch. 47 (p. 27)I. Way to look at s. 7 = A right not to be deprived of life, liberty and security of person except in accordance with

the principles of fundamental justice. a. §7 Infringement Analysis

i. Claimant must show there an infringement of life, liberty, or the security of the person due to government action

ii. Claimant must demonstrate that the infringement is not in accordance with principles of Fundamental Justice – if in accordance with PFJ then no violation of §7

iii. Is the infringement justified under s. 1 Oakes test? 1. Sufficiently Important Objective = The law must pursue an objective that is sufficiently

important to justifying limiting a Charter right.2. Rational Connection = The law must be rationally connected to the objective.3. Least Drastic Means = The law must impair the right no more than is necessary to

accomplish the objective4. Proportionate Effect = The law must not have a disproportionately severe effect on the

persons to whom it applies.iv. Remedy – most likely a personal remedy under s. 24 or could be invalidity under s. 52

II. What is Fundamental Justice? (p.29) a. Principle of FJ are to be found in the basic tenets of the legal system – namely that it is:

i. A legal principle with significant societal consensus that it is fundamental to the way in which the legal system ought to fairly operate;

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ii. The legal principle/rule must be capable of being identified with sufficient precision to yield a manageable standard.

1. PFJ includes both Substantive & Procedural rights. b. Risidual Theory : the principles of fundamental justice in s7 could still contain some “residual” elements of

the right against self-incrimination.i. a right to remain silent

ii. a right not to give an incriminating answer iii. a right to have all evidence derived from the compelled testimony excluded from the subsequent

proceedingsiv. a right to have only that derivative evidence that could not have been discovered apart from the

compelled testimony excluded from subsequent proceedingsc. Trial/Procedural Fairnessd. Goes against PFJ:

i. Absolute liability offenses that require jail timeii. Felony Murder

iii. Offenses not committed voluntarily – Automatism, duress, intoxicationiv. Overbroad laws

1. A law that restricts liberty more than is necessary to accomplish its purpose would be a breach of fundamental justice by reason of Overbreadth. It could not be upheld under s.1, because it would fail the minimum impairment (least drastic means) test of s. 1 analysis.

2. a law which is broader than necessary to accomplish its purpose- breach of the principles of fundamental justice.

v. Disproportionate laws – For a finding of disproportionality, requires the court to determine:1. Whether a law pursues a “legitimate interest” and if it does 2. Whether the law is grossly disproportionate to the state interest

vi. Vague laws1. First, the law does not provide fair notice to persons of what is prohibited which makes it

difficult for them to comply with the law.2. Secondly the law does not provide clear standards for those entrusted in enforcement which

may lead to arbitrary enforcement. vii. Arbitrary laws: A law is arbitrary if it “lacks a real connection on the facts to the purpose the law is

said to serve.”viii. Wrong laws

EQUALITY – Ch. 55 (p. 38)I. Withler v. Canada – Current s. 15 test. Two-part test for assessing a s. 15(1) claim:

1. Does the law create a distinction that is based on an enumerated or analogous ground? (a) The claimant must establish that he or she has been denied a benefit that others are granted or carries a

burden that others do not, by reason of a personal characteristic that falls within the enumerated or analogous grounds of s. 15(1).

(b) It is not necessary to pinpoint a mirror comparator group. Provided that the claimant establishes a distinction based on one or more of the enumerated or analogous grounds, the claim should proceed to the second step of the analysis.

2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? (a) At the second step, the question is whether, having regard to all relevant factors, the distinction the law

makes between the claimant group and others discriminates by perpetuating disadvantage or prejudice to the claimant group, or by stereotyping it.

(b) What is required is an approach that takes account of the full context of the claimant group's situation, the actual impact of the law on that situation, and whether the impugned law perpetuates disadvantage to or negative stereotypes about that group.

3. If no & law upheld, claim over. If yes, can the impugned law be justified under s. 1? Oakes test.

(a) Sufficiently Important Objective = The law must pursue an objective that is sufficiently important to justifying limiting a Charter right.

(b) Rational Connection = The law must be rationally connected to the objective.

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(c) Least Drastic Means = The law must impair the right no more than is necessary to accomplish the objective

(d) Proportionate Effect = The law must not have a disproportionately severe effect on the persons to whom it applies.

4. Remedy – s. 24/s.52II. Previous Tests to determine Discrimination & Human Dignity Standard (p. 37):

a. Andrews v Law Society of BC- SCC held that s15 was a prohibition of those violations of equality that amount to discrimination and that discrimination could only be based on a ground listed in s15 or that was analogous to those listed in s15. Test has evolved:i. Challenged law imposes (directly or indirectly) on the claimant a disadvantage (in the form of a burden or

withheld benefit) in comparison to other comparable persons;1. The legislative distinction must be one 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 & advantages available to other members of society.

ii. Disadvantage is based on a ground listed in or analogous to a ground listed in s15; and iii. Disadvantage also continues an impairment of the human dignity of the claimant

b. Law v Canada- Added new interpretation of s. 15 & added “Human Dignity” restriction. Claimant was survivor seeking a payment from a spouse but was ineligible because she was under 35 (age discrimination under s. 15). “Human Dignity” standard defeated her claim. She couldn’t prove that age based restriction was an impairment of her human dignity. The new s. 15 test: i. s. 15 applied only to legislative distinctions based on a listed or analogous groundii. Discrimination in s. 15 involved an element additional to a distinction based on a listed/analogous ground.iii. Additional element was impairment of Human Dignity (imposed on claimant to prove).

1. 4 contextual factors (not to be taken exhaustively) that aid in human dignity inquiry:(a) The existence of pre-existing disadvantage, stereotyping, prejudice and vulnerability (b) Correspondence between the distinction and claimant’s characteristics or circumstances (c) Existence of ameliorative purposes or effects on other groups; and(d) Nature of the interest effected.

III. Protected Groundsa. Enumerated s. 15 grounds: Enumerated grounds – race, national or ethnic origin, colour, religion, sex, age, or

mental or physical disabilityb. Analogous grounds - - Cannot be easily changed, not voluntary, what a person is “a personal characteristic that is

immutable or changeable only at unacceptable cost to personal identity” Corbiere v. Canada. Analogous grounds so far:i. Marital Status (Miron v. Trudel – legal v. commons law spouse)ii. Citizenship (Andrews v BC Law Society)iii. Sexual Orientation (Egan v. Canada ; Vriend)iv. Aboriginality residence off reserve (Corbiere v Canada – residence on reserve required for voting in band

elections – off res still part of band)c. Rejected Grounds : Place of Residence (comparing law of one province to another), Occupation, substance orientation

(marihuana), temporal distinction.IV. Direct & Indirect Discrimination

a. Direct = law discriminatory on its faceb. Indirect = law discriminatory in its effect or in its application.

REMEDIES (p. 50)I. S. 52 - There are 6 choices of available remedies for s 52(1):

a. Nullification = declaring law invalid. b. Temporary Suspension of Invalidity: Schachter allows for 3 exigent circumstances when Invalidity will be

temporarily suspended:i. When the immediate striking down of legislation would pose a danger to public

ii. Would threaten the Rule of Lawiii. Would result in the deprivation of benefits from deserving persons

c. Severance- When only a part of a statute or provision violates the Constitution, it is appropriate that only the offending portion should be declared to be of no force or effect, and the rest should be spared.

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d. Reading in: Applies to under inclusive statute which, usually, confers a benefit on a class that failed to include all persons who had an equality based right to be included. It is a serious intrusion into role of Parliament – only appropriate in the clearest of cases :

i. Where the addition of excluded class was consistent with the legislative objective,ii. There seemed to be little choice on how to cure the constitutional defect;

iii. Reading in would not involve substantial change in cost or nature of the legislative scheme;iv. The alternative remedy of striking down the under-inclusive provision would be an inferior remedy –

Consider significance of remaining portion of lawe. Reading down – when statute will bear two interpretations, one of which offends Charter and one which

doesn’t. Ct should give the statute a narrow interpretation so there is no Const. breach. f. Constitutional exemption - Court has indicated that it might be willing to grant a ‘constitutional exemption’

from otherwise valid legislation that would be unconstitutional in its application to particular individuals or groups. Big M Drug Mart; Edwards Books

II. S. 24 Remedy for Gov’t action infringing Charter right – Personal Remedies (p. 52):a. Discretion should be guided by 4 factors:

i. Redress the wrongii. Encourage future compliance with Charter

iii. Avoid interference with government poweriv. Consider the ability of the Court to administer the remedy awarded

b. Appropriate and just - Individualized remedies including:i. Exclusion of evidence – 24(2) permits exclusion of evidence if its admission would bring the

administration of justice into disrepute,ii. Declarations that the rights of an individual or group have been infringed (declares legal position but

does not require defendant to actually do anything ex: Khadr) iii. Damages - Ward - illegal strip search - Damages serve three functions:

1. Compensate for loss2. Vindicate his Charter rights3. Deter future breaches

iv. Costs (Ex: Charter breaches that delays litigant)v. Injunctions (both prohibitory or mandatory),

vi. Supervision of court orders (Doucet-Boudreau v Nova Scotia)vii. Any other remedy court considers just and appropriate. Non-exclusive

ABORIGINALSI. Aboriginal Right (p. 45)

a. R v Van der Peet: What is an Aboriginal Right? Test: 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 asserting the right.

i. Practice to be “integral”, the practice, custom or tradition must be “of central significance” to the aboriginal society - a defining characteristic of the society that makes the culture of the society distinctive. The practice must have been developed before “contact” that is, before the arrival of Europeans in North America. The practice can evolve, but some contemporary practices don’t qualify that developed solely as response to European influence.

ii. R v Powley- Metis - not to the time of European sovereignty, but to “the time of effective European control.” Period after Métis community arose & before it came under political & legal control of European laws and customs in a particular area.

b. Sparrow-type obligations/rights arise when the Crown must respect constitutionally protected “existing” Aboriginal or treaty rights and justify interferences with those rights.

i. Summary: What is the right claimed? Was it unextinguished? Has the right been infringed, and if so – can it be justified?

ii. First = Right in existence/unextinguished, when the Con Act, 1982 came into effectiii. Second = s. 35 guarantee of aboriginal rights is not absolute – right subject to regulation by federal

laws, provided that the laws meet a standard of justification.iv. Third = Does the legislation in question has the effect of interfering with an existing aboriginal right?

If it does = a prima facie infringement of s. 35(1)

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v. Fourth = If there is infringement – can the Crown justify it? Is there a valid legislative objective that is compelling & substantial?

II. Aboriginal Title (p. 47)a. Delgamuukw v British Columbia Test for Aboriginal Title:

i. The land must have been occupied prior to sovereignty, or if not, must show a continuity between present and pre-sovereignty occupation. Occupation must have been exclusive/intention & capacity to maintain control)

ii. Scope: Right to (1) exclusive use and occupation of the land for a variety of purposes. But (2) use must not be irreconcilable with the nature of the group’s attachment to that land

iii. Other Factors: (1) Title held communally, (2) May not be alienated other than to Crown, (3) Oral history evidence ok, (4) Limitation: Rights may be infringed, both by the federal (e.g., Sparrow) and provincial (e.g., Côté) governments. However, s. 35(1) requires that those infringements satisfy the test of justification. 

b. Guerin-type obligations fiduciary: Arise in situations where the Crown has a duty to act in the interests of an Aboriginal group & has discretionary power in the matter (for example, in connection with the surrender of reserve land). 

i. Fiduciary duty : The aboriginal title to the land gave rise to a fiduciary duty on the part of the crown to deal with the land for the benefit of the surrendering Indians. This requirement, which places the Crown between the Aboriginal group and third parties to prevent exploitation, gives the Crown discretion to decide the Aboriginal interest.

c. Haida Nation v BC: Duty to consult & accommodate arises whenever the Crown is contemplating action that could have impact on Ab rights/lands subject to Ab title, even if the Ab rights/title at issue not yet proven.

i. Scope: Proportionate to preliminary assessment of strength of case supporting existence of right/title, & to seriousness of potentially adverse effect upon right/title claimed;

ii. No duty to agree. 3rd parties don’t owe duty.iii. When the consultation suggests amendment of Crown policy = stage of accommodation – may

require steps to avoid harm/minimize effects of infringement.

III. Misc Issues (p. 48)a. Aboriginal Self-Government : R v Pamajewon: Aboriginal right to self government extends only to activities

that took place before European contact and only to those activities that were an integral part of the aboriginal society.

b. Treaties : protected under s. 35 (Definition on p. 48)c. R v. Marshall, R v. Bernard Facts: M & B convicted of offences related to the selling/possession of timber.

Issue: Whether the Mi’kmak people have the right to log on Crown lands for commercial purposes pursuant to either treaty or Aboriginal title

i. Aboriginal Treaty right Test : Crown argues that scope of treaty right is to be determined by what trading activities were in the contemplation of the parties at the time the treaties were made. 

1. But treaty rights are not frozen in time.  Modern peoples do traditional things in modern ways. “The question is whether the modern trading activity in question represents a logical evolution from the traditional trading activity at the time the treaty was made”

d. R. v. Badger - hunting for food on land surrendered by treatyi. Words in document must not be interpreted technically but, in way that would

have been understood by aboriginal people.ii. The honour of the Crown is always at stake when dealing with Indian people.

Interpretations of treaties/statutory provisions which have impact on treaty/aboriginal rights must be approached in manner which maintains the integrity of the Crown . Always assumed that Crown intends to fulfill its promises.

iii. Ambiguities in wording resolved in favour of aboriginal peoples; corollary: limits will be narrowly construed.

iv. Sparrow test applies to treaty rights as well as aboriginal rights

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