Constitutional Law

The Constitution provides the framework for law-making and the establishment of the legal
system
Key features of the Constitution are:
Monarchy, parliamentary supremacy, responsible government, the rule of law,
democracy, and federalism
The Framework is partly written and partly unwritten
ritten portion comprises Constitutional !tatutes " there are things that you can#t easily put
your hands on
$nwritten portion comprises the %ritish Constitutional principles, &udicial interpretations
'(C and !CC), and Conventions 'custom and settled e*pectations)
The Constitutional Statutes:
!everal statutes 'now listed in the !chedule to the +,-. constitution statute that add new
provinces, etc)
!chedulue: put things by reference / provisions / like an 0ppendi* that#s attached
to Constitution
Two central constitutional statutes:
The Constitution Act, 1867
The Constitution Act, 1982
The Constitution Act 1867:
Contains the 0greement1pact of the %ritish colonies that came together to form a
confederation
Britain tried to impose their laws to their colonies, so these colonies merged
together & ormed the !ominion o Canada
(assed by the %ritish (arliament at the re2uest of the fathers of confederation
$nited colonies into a new 3ominion of Canada, the (arliament and the structure of
government
Created new provinces and established legislative assemblies for all provinces
3efined the relationship between the Canada 'the national government) and its provinces
and distributed legislative powers to them called Division of Powers
law"ma#ing powers di$ided % i the& step into areas outside their authorit&, there's
a law or that
0ccommodated minority language rights and religious education rights 'why444)
(t's a pro$incial )urisdiction
3ivision of powers was controversial and formed the core of constitutional law prior to
+,-.5 'hy4)
*owers were o$erlapping a lot+ ,o-od& was -eing clear on how it should -e
applied+
., heads of e*clusive powers plus (677 'peace, order and good govt) allocated to the feds
in section ,+ plus other powers in sections ,.'+8), ,9 and +8+
,9: .o$ernor .eneral appoints the /udges o Superior, !istrict and Count& courts
+9 heads of e*clusive powers for the provincial legislature in section ,. plus other powers
in sections ,.0 and ,: '!ee ;orner, 0ppendi* 0)
,.0: ,on"renewa-le ,atural 0esources, 1orestr& 0esources & 2lectrical energ&
,:: 2ducation 3e4cept 5ue-ec6
!hared &urisdiction is specified in section ,<:
(n each Province the Legislature may make Laws in relation to Agriculture in the
*ro$ince, and to (mmigration into the *ro$ince7 and it is here-& declared that the
Parliament of Canada may from Time to Time make Laws in relation to
Agriculture in all or any of the Provinces, and to Immigration into all or any of
the Provinces7 and any Law of the Legislature of a Province relative to
Agriculture or to Immigration shall have effect in and for the Province as long
and as far only as it is not repugnant to any Act of the Parliament of Canada+
The 3octrine of (aramountcy is entrenched for areas of shared &urisdiction
!hared &urisdiction: laws made -& pro$inces must not -e repugnant to the ederal
laws or else the& will -e struc# down 8 !octrine o *aramountc&
Judicial Interretation of Division of Powers
The Constitution Act, 1867 allocated more legislative powers to =====4 hy4444
The &udiciary re-interpreted the provisions by narrowing the powers of (arliament and
broadening the powers of the provincial >egislative 0ssemblies 'which Courts4444)
?57s5 '+) the (arson#s case @ ultra $ires 6ntario legislature to make laws on insurance
contracts as contracts are essential to Atrade and commerce5B $pheld: Aproperty and civilB
and limited Atrade and commerceB to interprovincial ones
They challenged 6ntario 0ct @ infringed upon federal act C interpretation must not
what it should be C contracts remain within the province
?575 '.) (677 Cases @ limited (arliament#s (677 powers to problems of national
dimension or e*traordinary emergency of a temporary nature" upheld provincial powers
over Aproperty and civil rightsB and Alocal mattersB
Cannot be used to infringe upon the provincial powers / !5,., !5+:
The waterti!ht co"art"ent Interretation - &udicial interpretation in the early days
emphasiDed e*clusivity of the powers allocated 'which Court444)
(n the *ri$& Council 9 if an area of endeavour fell to one level of authority, the other
level was precluded from any action in that area
3eclared the Constitution a living tree capable of growth and e*pansion '(erson#s case) /
always changes, it is evolving with time
The Dou#le Asect Interretation
%oth levels of government can legislate on a sub&ect1policy area provided it can establish a
proper link to its head of power
The federal and provincial laws in the same area are allowed to co-e*ist as long as they are
complementary and not conflicting
?75 3runk-driving @ (arliament has criminal law powers and makes it an offence, >aw
regulate the use of highways and prohibit it
Courts devised a test to determine whether a challenged statute has double aspect:
+5 CharacteriDe the legislation 'e5g an 0lberta 0ct)
Find the pith and substance @ the true character and purpose of the 0lberta 0ct
Find the head of power it can fit into under s5 ,.1,:
.5 Ef not fitting, does the 0ct have a valid provincial AaspectB4
:5 Es there a federal 0ct in that policy area4
F5 3oes the 0lberta 0ct conflict with the fed5 0ct4
<5 Ef not, both laws co-e*ist5 Ef conflict e*ists-
95 0pply the doctrine of paramountcy and 0lberta >aw will be struck down to the e*tent of
conflict
0nalyDe the case of Rothmans, Benson !edges Inc" v" #askatchewan using the FE>0C
method
(repare for an e*ercise on the doctrine of paramountcy
The Constitution Act$ 1%8& :
(assed by the %ritish (arliament at the re2uest of the Canadian federal government and ,
provincial governments
(uts Canada in charge of its Constitution
(rovides an amendment clause for the Constitution
(rovides the Charter of Gights and Freedom in relation to government and other bodies
created by government
3eclares the Constitution supreme and that any law in violation of the Constitution is of no
force and effect 'ss5 + and <., see 0ppendi* C of ;orner)5
Ahereas Canada is founded upon principles that recogniDe the supremacy of 7od and the
rule of lawHB
'(CTI)* 1: The Canadian Charter o 0ights and 1reedoms A!uaranteesB the Ari!htsB
and Afreedo"sB set out in it su#+ect onl, to such reasona#le li"its rescri#ed #, law as
can be de"onstra#l, +ustified in a free and de"ocratic societ,5
hat do the underlined words mean4444
The rights o an& one person must -e tempered -& the rights o others+ A limit on
the rights& reedoms can -e )ustiied onl& i it's the result o properl& enacted law+
0easona-le limits9 we can sue each other or Constitutional $iolation
hat is the purpose of section +4
:elps the courts when legislation ta#es awa& or guaranteed tights
S+1 guarantees our rights & reedoms7 it also pro$ides or circumstances in with
these rights & reedoms can -e limited+
;ow did the !upreme Court of Canada interpret section +4
SC esta-lished a test that had a re$erse onus pro$ision % the accused must pro$e
that he did not intend to traic narcotic+ 8 ;a#es Test
En which case4
0+ <+ ;a#es case
!ection + guarantees rights and freedoms5
!ection + also limits those rights and freedoms5
!ection + provides the circumstances in which the rights and freedoms can be limited5
The rights and freedoms are not absolute5
0ny claw back of the rights and freedom must be A demonstrably &ustifiedB'obvious)5
The claw back can only be &ustified if: prescri-ed -& a properl& enacted law" reasona-le"
and consistent with the principle o democrac&
;ow are all these elements applied4
The 6akes Test @ 0 $+ ;a#es
The !upreme Court of Canada formed a legal test to determine in each case whether a law
that clawed back 'violated) a Charter right or freedom can be saved '&ustified) under s5+5
hat are the Facts and issues in ;a#es4 'Geverse onus for drug trafficking in s5 - of the
federal ,arcotic Control Act v5 presumption of innocence in s5 ++'d) of Charter)
Geverse onus: the accused has the burden to prove his innocence
;eld: s5 - violated presumption of innocence" but was unreasonable for using e*treme
means"
!5+ allows gov#t to violate rights in some circumstances C reverse onus cannot stand
against s5+
!5 - would stop much more than trafficking so disconnected from the ob&ective of the 0ct5
Io logical connection of small amts5 to trafficking5
The )a-es Test:
Es the ob&ective of the 0ct of sufficient importance4
Es the means to achieve the ob&ective reasonable and proportional4
- Es it rationally connected to the ob&ective4 Can it achieve it4 6r is it arbitrary,
unfair, or based on irrational considerations4
- does the 0ct impair the right as little as possible4
- 3o the effects of limitation outweigh the importance of the ob&ective of the 0ct4
The onus is on the government that made the 0ct to prove that it is &ustified and saveable
under section +5
$a%or Components of the Charter &uarantee' (Rights) and (*reedoms)"
0ights9 acti$e, use it 1reedoms9 permissi$e, things we're entitled to do with permission
.unda"ental .reedo"s: s/ & 0 ?veryone has the following fundamental freedoms:
freedom of conscience and religion"
lows rom the e4odus o religious dissent rom .reat Britain &
separation o church & state in the ,ew =orld
freedom of thought, belief, opinion and e*pression, including freedom of the press
and other media of communication"
,ecessar& to allow or de-ate % undamental to democrac&
freedom of peaceful assembly" and
Freedom of association5
24istence o union
0rtificial persons like corporations en&oy s5 . freedoms @ what interpretation approach4444
.reedo" of reli!ion alication @
the federal >ord's !a& Act ? !unday closure @ result444
!truck down
%lood transfusion cases @ result444
Gefusal of blood transfusion also violates rights of the child from s5+ "
this freedom can#t be enforced, no &ustification
.reedo" of (1ression 0 #road content
Encludes speech, actions, language, for commercial or marketing purposes
Child pornography and hate speech Criminal Code cases @ results44
Justifiable since it protects the most vulnerable group
.reedo" of the Press 0 narrow content
(ublic access to Court proceedings and materials4
%an on publication of personal info cases @ result44
Iames of children in trouble K se*ual crimes victims are sealed
.reedo" of Association 0 narrow content
Encludes some unions
Gight to strike and collective bargaining cases @ *u-lic Ser$ice 2mplo&ee 0elations Act
'essential services) @ results444
?ssential services '?M!, doctors, etc) cannot go on strike because they are
important
Rights
De"ocratic 2i!hts 'ss5 :-<)
right to vote and be voted for 'M( and M>0)
For citiDens only '&udges, prisoners 4444)
Tenure is < years but more in emergencies unless opposed by +1:
rd
members of the
house
>egislative assembly: ;ouse of commons Kprov5 assembly
3o#ilit, 2i!hts 's5 9)
Gight to enter, remain in and leave Canada 'citiDens only)
Geside in and earn a living in any province 'citiDens and permanent residents)
sub&ect to 'a) provincial laws of general application and 'b) reasonable residency
re2uirement for public benefits
(ermanent resident who commits an offense/ e*tradition law @ affect against
citiDenship and can be deported
4e!al 2i!hts 'ss5L, --+F)
Gight to life, liberty and security of the person and not to be deprived thereof e*cept
in accordance with the principle of fundamental &ustice 's5 L) / Aumbrella legal
rights provisionB
Gight to be safe from unreasonable search or seiDure5 's5 -)
Gight not to be arbitrarily detained or imprisoned 's5 ,)
Gights upon arrest or detention 'habeas corpus) 's5 +8)
0ight to retain counsel % resulted in legal aid plans 8 2@ hr toll"ree lines
Gights upon charge with an offence 's5++)
!5++d: ;abeas corpus
Gight against cruel or unusual treatment or punishment 's5 +.)
Gight against self-incrimination 's5 +:)
Gight to an interpreter 's5 +F)
Gight to life, liberty and security of the person and not to be deprived thereof e*cept
in accordance with the principle of fundamental &ustice 's5 L)
3escribed as the umbrella or omnibus clause of legal rights as ss5 --+F elaborate or
details s5L rights5
Iot absolute, can be deprived of provided Afundamental &usticeB is complied with5
?mploys natural law theory
Fundamental &ustice means due process, fair treatment and the attributes of the rule
of law5
0vailable to AeveryoneB but has been limited by the !upreme Court to human
beings @ why4
Because onl& human -eings can en)o& lie, li-ert& and securit& o the
person
Corporations are not li$ing ? the& can't -e con$icted
Gight to be safe from unreasonable search or seiDure5 's5 -)
?*cept in emergency situations a search is unreasonable unless conducted
with a search warrant, upon arrest, or with informed consent5
!eiDure is not &ustified unless the item is in plain view or was recovered
from a reasonable search5
Gights upon arrest and charge 'ss5 +8-+.) protect suspects and the accused, ensure
they know the case against them, entitle to legal advice and rep, speedy trial times,
fair hearing5
(5ualit, 2i!hts 's5 +<)
Gight to e2ual benefit of the law without discrimination, in particular, based on
race, national or ethnic origin, colour, religion, se*, age, or mental or physical
disability
3oes not preclude law, program or activity that is aimed at improving the
conditions of the disadvantaged including disadvantage based on the above list5
0pplies to AindividualsB@ natural persons only5
(rohibited grounds of discrimination not an e*haustive list @ includes Aanalogous
grounds 'undefined grounds)B / group that has historicall& suered ill treatment
3oes every difference in treatment or benefit amount to discrimination444 no
3iscrimination amounts to:
0dverse treatment
based on personal characteristics
To members of a group that has historically suffered ill treatment or
disadvantaged / that includes se*ual orientation
Es the gay1lesbian group protected under s5 +<4
Aes, since the& are in the group that suered ill treatment historicall&+ But,
the& are ,;T entitled to share in Bspousal -eneitsC
hich ground4 0ny case law4
)ther 2i!hts 'ss5 +9-.:)
6fficial language rights '?nglish and French)
Minority language education rights5
Alication of the Charter of Rights and *reedoms 6s/ 7&8
7overnments and all their actions and activities 'what bodies are caught here444)
The degree to which a body applies a government power
(arliament and legislative assemblies and all their laws5
(ublic bodies and actions only5 Io private individual or private actions5
6nly govt5 action or law can be challenged here
Endirect application to the private sphere by watching human rights legislation
>egislation must comply with the Charter
Charter 2e"edies 's5 .F)
0ccording to the court#s discretion 'Aappropriate and &ustB)5
!trike down parts of legislation"
Gead-in words to reconcile a statute with the Charter @ why does the court use
this444
%ecause it might be struck down K courts can#t leave us lawless
3amages 'very rarely)
?*clusion of evidence obtained in violation of Charter rights '2ualifier)
Court must determine whether its admission will bring the administration of
&ustice into disrepute
Interretation Aroach is the (urposive 0pproach
18/ The *otwithstandin! Clause 's5 ::)
0llows the legislature to pass laws that violates ss5 .'Fundamental Freedoms) L-+< '>egal
and ?2uality rights)5
Must e*pressly declare so in the statute
?*pires after < years but legislature can re-enact the declaration
hich constitutional principle is at play here4
(arliamentary supremacy
+," Locus #tandi 6'tandin!8 @ the right to challenge a law or government action
0nyone whose rights have been violated @ depending on whether the right is available to
natural or artificial persons 's5 .F)5
0nyone charged under a law regardless of violation of his1her personal rights 's5 <.)
hy4444
(ublic interest !tanding @ no direct effect @ ?5g4
Io other reasonable or effective way to challenge
7enuine interest
!erious and &usticiable issue to be resolved
Charter Cases
Chaoulli c" -ue.ec
*ro$incial legislation prohi-iting 5ue-ec residents rom ta#ing out insurance to o-tain
pri$ate sector health care ser$ices alread& a$aila-le under 5ue-ec's pu-lic health care
plan
D *rohi-ition depri$ing 5ue-ec residents o access to pri$ate health care ser$ices not
coming with waiting times inherent in pu-lic s&stem
D =hether prohi-ition inringing rights to lie guaranteed -& s+ 1 o Charter o :uman
0ights and 1reedoms
" i so, whether depri$ation in accordance with principles o undamental )ustice D ( there
$iolation, whether it can -e )ustiied under s+ 1 o Charter+
R v" $orgentaler
Criminal Code prohi-iting a-ortion e4cept where lie or health o woman endangered
"" =hether or not a-ortion pro$isions inringe right to lie, li-ert& and securit& o the
person
"" ( so, whether or not such inringement in accord with undamental )ustice
"" =hether or not impugned legislation reasona-le and demonstra-l& )ustiied in a ree and
democratic societ&
Division of Power (1ercise
Rothmans, Benson !edges Inc" v" #askatchewan
PA2TI(' 0 Aellant9 .o$'t o Sas#atchewan 2esondent9 0othmans, Benson &
:edges (nc
.ACT': Sas#atchewan added that minors can't enter into stores and prohi-it
ad$ertisement
federal gov#t are suing tobacco companies
I'':(': is there a conlict -etween the eds and pro$incial lawE
4A;: doctrine o paramountc&
C)*C4:'I)*
Mc>achlin C5J5, Ma&or, %astarache, %innie, >e%el, 3eschamps, Fish, 0bella and Charron
JJ5
The respondent company sought a declaration that s5 9 of the !askatchewan To-acco
Control Act is, by virtue of the paramountcy doctrine, inoperative in light of s5 :8 of the
federal To-acco Act5
!5 :8 allows retailers to display tobacco and tobacco product-related brand elements and
post signs indicating the availability and price of tobacco products
!5 9 bans all advertising, display and promotion of tobacco or tobacco-related products in
any premises in which persons under +- years of age are permitted5
The Court of Mueen#s %ench dismissed the company#s application5 The Court of 0ppeal set
aside that decision and declared s5 9 inoperative on the basis of a practical inconsistency
between the two provisions5
:eld: The appeal should be allowed5 The provincial legislation is not inoperative by virtue
of the paramountcy doctrine5
Io inconsistency between s5 9 of The To-acco Control Act and s5 :8 of the To-acco Act5
D:A4 C)3P4IA*C( T('T - 0 retailer can easily comply with both provisions in one
of two ways: by admitting no one under +- years of age on to the premises, or by not
displaying tobacco or tobacco-related products5
.2:'T2ATI)* ). 4(<I'4ATI=( P:2P)'( T('T - s5 9 does not frustrate the
legislative purpose underlying s5 :85 %oth the general purpose of the To-acco Act 'to
address a national public health problem) and the specific purpose of s5 :8 'to circumscribe
the To-acco Act#s general prohibition on promotion of tobacco products) remain fulfilled5
2atio
There is an inconsistency if it is impossible to comply simultaneously with both provincial
and federal enactments5 '(ara5 ++)
(rovincial legislation that displaces or frustrates (arliament#s legislative purpose is also
inconsistent for the purposes of the doctrine5 '(ara5 +.)
Et follows that in determining whether s5 9 of The To-acco Control Act is sufficiently
inconsistent with s5 :8 of the To-acco Act so as to be rendered inoperative through the
paramountcy doctrine, two 2uestions arise5 First, can a person simultaneously comply with
s5 9 of The To-acco Control Act and s5 :8 of the To-acco Act4 !econd, does s5 9 of The
To-acco Control Act frustrate (arliament#s purpose in enacting s5 :8 of the To-acco Act4
'para5 +<)