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Reference re Secession of Quebec, [1998] 2

S.C.R. 217 was an opinion of the Supreme

Court of Canada reardin the !ea!it", under

both Canadian and internationa! !aw, of a

uni!atera! secession of Quebec from Canada.

#oth the Quebec o$ernment and the Canadian

o$ernment stated that the" were most p!eased

with the Supreme Court%s opinion, pointin to

different sections of the ru!in.

Contents [hide]

1 #ac&round

2 Questions addressed

' Submissions

( )pinion

(.1 Riht to secede under Canadian !aw

(.2 Rihts to secede under internationa! !aw and

se!f*determination

(.' +hich !aw app!ies in Canada

- Reaction of Quebec

Reaction of the federa! o$ernment

7 See a!so

8 References

9 /0terna! !in&s

#ac&round[edit]

o!!owin the e!ection of a maorit" of 3arti

Qu4b4cois 53Q6 embers of the ationa! ssemb!" 5s6 with (1.'7: of the popu!ar

$ote in the 197 pro$incia! e!ection, the part"

formed a o$ernment and, in 198;, he!d a

referendum. <he o$ernment of Quebec as&ed

the pro$ince%s popu!ation if it shou!d see& a

mandate to neotiate so$ereint" for Quebec

coup!ed with the estab!ishment of a new po!itica!

and economic union with Canada. <he

referendum resu!ted in the defeat of the

so$ereint" option with -9.-: $otin no on

so$ereint". <he 3Q was ne$erthe!ess re*

e!ected in 1981, this time promisin not to ho!d a

referendum.

=n 1982, the federa! o$ernment petitioned the

3ar!iament of the >nited ?indom in @ondon to

amend Canada%s constitution so that in the

future, a!! further amendments wou!d ta&e p!ace

b" means of a process of consent in$o!$in on!"

the 3ar!iament of Canada and the !eis!atures of

the pro$inces 5se$era! pro$inces obected6. >p

unti! this point, a!! amendments had ta&en p!ace

b" means of cts of the 3ar!iament at

+estminster, since the Canadian constitutionwas, strict!" spea&in, a simp!e statute of that

3ar!iament.

Co!!oAuia!!", the switch to a domestic

amendment procedure was &nown as patriation.

<he particu!ar formu!a for amendments that was

adopted in 1982 was opposed b" the then*

o$ernment of Quebec, which a!so opposed the

adoption of other constitutiona! chanes made at

the same time, such as the Canadian Charter ofRihts and reedomsBa!thouh this opposition

was not necessari!" based on a reection of the

content of these chanes, as opposed to the

manner of their adoption, and the fai!ure to

inc!ude amendments specific to Quebec in the

pac&ae. !so, Quebec had a!read" at that time

a more comp!ete Charter that was adopted in

197-.

<wo further attempts were made at amendinthe Canadian constitution in 1987*199; and

1992 in a manner that, it was hoped, wou!d ha$e

caused the Quebec !eis!ature to adopt a motion

supportin the re$ised constitution. <hese fai!ed

pac&aes of constitutiona! reforms were &nown

as the eech @a&e ccord and the

Char!ottetown ccord. <hus, in the mid*199;s,



there was a widespread sense that the

Constitution of Canada was not fu!!" !eitimate,

because it had not "et recei$ed the forma!

appro$a! of Quebec.

=n 199(, the 3arti Qu4b4cois was re*e!ected and

announced that it wou!d be initiatin a second

referendum to ta&e p!ace in 199-. <his time, the

Auestion was on so$ereint" with an optiona!

partnership with Canada. <he no side won b"

on!" a narrow marin. 3rior to this referendum,

the ationa! ssemb!" of Quebec adopted a bi!!

re!atin to the future of Quebec which !aid out

the Quebec%s p!an for secession in case of a

winnin referendum.

=n response to the bi!! and the referendum resu!t,

se$era! !ea! actions were initiated b" opponents

to the independence of Quebec, Auestionin the

!ea!it" of secession. =n 199, 3arti Qu4b4cois

!eader @ucien #ouchard announced that his

o$ernment wou!d ma&e p!ans to ho!d another

referendum when he was confident that the

winnin conditions were there, pointin to the

po!itica! cost of !osin a third referendum. =n

reaction to #ouchard%s stated p!ans, 3rime

inister Dean Chr4tien initiated a reference toanswer the !ea!it" of a uni!atera! dec!aration of

independence from a Canadian pro$ince.

Questions addressed[edit]

<he Eo$ernor in Counci! 5effecti$e!", the Cabinet

of Canada6 submitted the reAuest for an

ad$isor" opinion on the fo!!owin three specific

AuestionsF

>nder the Constitution of Canada, can the

ationa! ssemb!", !eis!ature, or o$ernment of

Quebec effect the secession of Quebec from

Canada uni!atera!!"

Goes internationa! !aw i$e the ationa!

ssemb!", !eis!ature, or o$ernment of Quebec

the riht to effect the secession of Quebec from

Canada uni!atera!!" =n this reard, is there a

riht to se!f*determination under internationa!

!aw that wou!d i$e the ationa! ssemb!",

!eis!ature, or o$ernment of Quebec the riht to

effect the secession of Quebec from Canada

uni!atera!!"

=n the e$ent of a conf!ict between domestic and

internationa! !aw on the riht of the ationa!

ssemb!", !eis!ature, or o$ernment of Quebec

to effect the secession of Quebec from Canada

uni!atera!!", which wou!d ta&e precedence in

Canada[1]

Submissions[edit]

<here were an unprecedented 1- inter$eners.

Howe$er, the Quebec o$ernment refused to

ta&e part and was not represented. =n its p!ace

the Court appointed ndr4 Do!icoeur as an

amicus curiae to arue for the so$ereintist side.

<he federa! o$ernment%s submission arued

that the on!" wa" a pro$ince cou!d secede from

Canada wou!d be throuh a constitutiona!

amendment. )n!" an amendment throuhsection (- wou!d a!!ow for uni!atera!

amendments. Howe$er, that section does not

app!" here. <o attempt to secede uni!atera!!"

wou!d $io!ate the constitution on two rounds.

irst, it wou!d $io!ate the ru!e of !aw b" inorin

the authorit" of the constitution as supreme !aw

of the countr", and second, it wou!d $io!ate

Canadian federa!ism b" actin with powers on!"

a!!ocated to the federa! o$ernment.

<he amicus curiae%s submission arued se$era!

points. irst, the" arued that the reference was

in$a!idI the Auestion is pure!" a po!itica! one and

thus is outside the authorit" of the Court to

answer under section -2 of the Supreme Court

ct. <he" attempted to ana!oiJe the use of the

>S po!itica! Auestion doctrine to the Canadian



of the Supreme Court. 3remier #ouchard stated

pub!ic!" that the court had $a!idated the

referendum strate" that the so$ereintists had

adopted with Ren4 @4$esAue. Quebec was most

satisfied when the court made it c!ear that the

Auestion of Quebec%s po!itica! status was abo$e

a!! a po!itica! Auestion, and not a !ea! one. =t

a!so !i&ed the fact that the Supreme Court made

it c!ear that the o$ernment of Canada and that

of the other pro$inces wou!d ha$e to neotiate

after a winnin referendum on secession. <his

wou!d ma&e a uni!atera! dec!aration of

independence unnecessar".

Reaction of the federa! o$ernment[edit]

<he Canadian o$ernment of Dean Chr4tienstated that it was p!eased with the court%s

opinion.[citation needed] <he Supreme Court

had made it c!ear that Quebec cou!d not dec!are

independence uni!atera!!". n" ob!iation of

Canada to neotiate with Quebec was

conditiona! on the so$ereintists% as&in a c!ear

Auestion within the conte0t of a referendum. <he

o$ernment of Canada subseAuent!" drafted the

C!arit" ct, which 3ar!iament then enacted.

R. $. orenta!er[1] was a decision b" the

Supreme Court of Canada in$a!idatin a

pro$incia! attempt to reu!ate abortions in

Canada. <his fo!!owed the 1988 decision R. $.

orenta!er, which had struc& down the federa!

abortion !aw as a breach of section 7 of the

Canadian Charter of Rihts and reedoms. =n

199', the pro$incia! reu!ations were ru!ed to be

a crimina! !aw, which wou!d $io!ate the

Constitution ct, 187. <hat ct assins crimina!

!aw e0c!usi$e!" to the federa! 3ar!iament.

Contents [hide]

1 #ac&round

2 Ru!in

' Commentar"

( References

- See a!so

#ac&round[edit]

Ha$in won his case in R. $. orenta!er,

abortion rihts acti$ist Henr" orenta!er

p!anned to open an abortion c!inic in o$a

Scotia. <he pro$incia! o$ernment responded b"

passin !eis!ation that wou!d out!aw such c!inics

5as a pro$incia! offence6 and !imit abortions to

reconiJed hospita!s. <his reu!ation was not

!imited to abortion but a!so co$ered !iposuction

and other proceduresI indeed, the pro$incia!

o$ernment c!aimed it was mere!" fihtin the

pri$atiJation of the hea!th care s"stem 5sinceorenta!er%s c!inics were pri$ate6. <he pena!t"

set out in the !eis!ation wou!d be a fine of

between O1;,;;; to O-;,;;;. >ndaunted,

orenta!er went ahead and opened his c!inic,

supposed!" to recei$e potentia! patients for his

other c!inics outside o$a Scotia. /$entua!!",

howe$er, orenta!er informed the press that he

had indeed carried out abortions in his o$a

Scotia c!inic. <he o$ernment chared him for

this, but orenta!er cha!!ened the

constitutiona!it" of the !aw.

Ru!in[edit]

>pon recei$in the issue, the Supreme Court

dec!ined to decide the case on the basis of the

Charter and !imited itse!f to the federa!ism issue.

/$en here, the Court !imited itse!f b" not

considerin the issue of whether abortion re!ates

to peace, order and ood o$ernment, which

wou!d definite!" ma&e it federa! urisdiction.

Dustice Dohn Sopin&a, writin for a unanimousCourt, simp!" areed with the arument that

these specific abortion reu!ations, rather than

bein a $a!id pro$incia! reu!ation of hospita!s

and medicine, instead constituted an in$a!id

crimina! !aw. s a resu!t, a!! of these reu!ations

were struc& down, inc!udin the ones not dea!in

with abortion.



<he Court bean b" notin that the !eis!ation

was a!wa"s meant to taret specific ser$ices,

and abo$e a!! e!se abortion. =n considerin the

!aw%s pith and substance, this raised the

Auestion of whether the pro$incia! o$ernment%strue moti$es for enactin the !eis!ation was not

to reu!ate hospita!s or medicine, but to !imit

what it saw as the socia!!" undesirab!e conduct

of abortion 5which wou!d be a crimina! !aw

function6. <he Court a!so noted that in

orenta!er $. <he Queen 5197-6, it had been

found that the abortion !aw !ater struc& down in

1988 had been crimina! !aw, and as such it had

been appropriate!" passed b" 3ar!iament as

opposed to b" a pro$incia! !eis!ature. <his a!so

raised the Auestion of whether abortion !aws are

desined to dea! with socia!!" undesirab!e

conduct. <he Court then Auoted o$a Scotia%s

Hansard, which reinforced the notion that the

pro$incia! o$ernment saw orenta!er%s c!inics

as a pub!ic e$i! which shou!d be e!iminated and

minimiJed the arument that the !aw had been

meant to combat pri$atiJation.

<he Court obser$ed that the fines were serious

pena! considerations, a t"pica! feature of

crimina! !aw.

<he pro$incia! reu!ations were a!so ru!ed to be

$er" simi!ar to the federa! abortion !aw struc&

down in 1988 5a!thouh o$a Scotia did not

resurrect the <herapeutic bortion Committees

of the federa! !aw6. <he simi!arities were

prob!ematic to the pro$incia! !aw, since

simi!arities between pro$incia! !aws and !aws in

the Crimina! Code of Canada ha$e, in the past,

!ed to pro$incia! !aws bein struc& down as u!tra

$ires the pro$incia! o$ernments.

Commentar"[edit]

=n his boo& Constitutiona! @aw of Canada,

constitutiona! scho!ar 3eter Ho referred to this

orenta!er decision as remar&ab!e, notin

that the reu!ation of the procedures besides

abortion had been struc& down after the Court

had referred to them as a smo&escreen for the

true purpose of the !eis!ation. =n Ho%s $iew,

the Court had done this under the doctrine of

co!ourabi!it", which ho!ds that a !aw desined to

!oo& !i&e it was enacted within the powers of the

re!e$ant !eis!ati$e bod", but in fact attemptin to

reu!ate a matter within another !e$e! of

o$ernment%s authorit", shou!d be struc& down.

<he Court, howe$er, had emphasiJed pith and

substance, and c!aimed that it did not emp!o"

the co!ourabi!it" doctrine in this particu!ar case.

[2]

Canada +estern #an& $. !berta [2;;7] 2 S.C.R.' is a !andmar& decision in Canadian

constitutiona! !aw b" the Supreme Court of

Canada 5SCC6 re!atin to the di$ision of powers

between edera! and 3ro$incia! !eis!ati$e

bodies.

Contents [hide]

1 #ac&round

2 <he udments be!ow

' Supreme Court Gecision

'.1 ssessin the constitutiona!it" of !eis!ation

'.2 3ith and substance

'.' =nterurisdictiona! immunit"

'.( edera! 3aramountc"

( See a!so

- References

/0terna! !in&s

#ac&round[edit]

=n 2;;;, !berta enacted chanes to its

=nsurance ct purportin to ma&e federa!!"



chartered ban&s subect to the pro$incia!

!icensin scheme o$ernin the promotion of

insurance products. >pon the comin into force

of that ct, the #an&, toether with other

chartered ban&s, brouht an app!ication for a

dec!arationF

that their promotion of certain insurance

products authoriJed b" the #an& ct was

ban&in within the meanin of s. 9151-6 of the

Constitution ct, 187, and

that the =nsurance ct and its associated

reu!ations were constitutiona!!" inapp!icab!e to

the ban&sN promotion of insurance b" $irtue of

the doctrine of interurisdictiona! immunit" or,

a!ternati$e!", inoperati$e b" $irtue of the doctrineof federa! paramountc".

<he udments be!ow[edit]

<he tria! court dismissed the ban& app!ication

and saidF

the =nsurance ct is a $a!id e0ercise of pro$incia!

powers under P9251'6,

interurisdictiona! immunit" a!so fai!s becauseinsurance is not Lat the coreM of ban&in, and

federa! paramountc" does not app!" because

there is no operationa! conf!ict between federa!

and pro$incia! !aw.

<he appea! court reaffirmed the tria! court

decision.

Supreme Court Gecision[edit]

<he Supreme Court of Canada reaffirmed the

appea! court.

<he =nsurance ct and its associated reu!ations

app!" to the ban&sN promotion of insurance. <he

fact that 3ar!iament a!!ows a ban& to enter into a

pro$incia!!" reu!ated !ine of business such as

insurance cannot, b" federa! statute, uni!atera!!"

broaden the scope of an e0c!usi$e federa!

!eis!ati$e power ranted b" the Constitution ct,

187.

ssessin the constitutiona!it" of !eis!ation[edit]

=t was emphasiJed b" the Court that a!!

constitutiona! !ea! cha!!enes to !eis!ation

shou!d fo!!ow the same approachF

the pith and substance of the pro$incia! !aw and

the federa! !aw shou!d be e0amined to ensure

that the" are both $a!id!" enacted !aws and to

determine the nature of the o$er!ap, if an",

between them.

the app!icabi!it" of the pro$incia! !aw to the

federa! underta&in or matter in Auestion must

be reso!$ed with reference to the doctrine of

interurisdictiona! immunit".

on!" if both the pro$incia! !aw and the federa! !aw

ha$e been found to be $a!id pieces of !eis!ation,

and on!" if the pro$incia! !aw is found to be

app!icab!e to the federa! matter in Auestion, then

both statutes must be compared to determine

whether the o$er!ap between them constitutes a

conf!ict sufficient to trier the app!ication of the

doctrine of federa! paramountc".

3ith and substance[edit]

+here the constitutiona!it" of !eis!ation is bein

Auestioned in re!ation to the di$ision of powers

under the Constitution ct, 187, an ana!"sis of

its pith and substance must be underta&en. <his

ana!"sis consists of an inAuir" into the true

nature of the !aw in Auestion for the purpose of

identif"in the matter to which it essentia!!"

re!ates.[1]



=f its pith and substance can be re!ated to a

matter that fa!!s within the urisdiction of the

!eis!ature that enacted it, the courts wi!! dec!are

it intra $ires.

=f, howe$er, it can more proper!" be said to

re!ate to a matter that is outside the urisdictionof that !eis!ature, it wi!! be he!d to be in$a!id

owin to this $io!ation of the di$ision of powers.

<he coro!!ar" to this ana!"sis is that !eis!ation

whose pith and substance fa!!s within the

urisdiction of the !eis!ature that enacted it ma",

at !east to a certain e0tent, affect matters be"ond

the !eis!atureNs urisdiction without necessari!"

bein unconstitutiona!. t this stae of the

ana!"sis, the dominant purpose of the !eis!ation

is sti!! decisi$e.

ere!" incidenta! effects wi!! not disturb the

constitutiona!it" of an otherwise intra $ires !aw.

[2]

<he pith and substance doctrine is founded on

the reconition that it is in practice impossib!e for

a !eis!ature to e0ercise its urisdiction o$er a

matter effecti$e!" without incidenta!!" affectin

matters within the urisdiction of another !e$e! of

o$ernment.[']

!so, some matters are b" their $er" nature

impossib!e to cateoriJe under a sin!e head of

powerF the" ma" ha$e both pro$incia! and

federa! aspects. <he doub!e aspect doctrine,

which app!ies in the course of a pith and

substance ana!"sis, ensures that the po!icies of

the e!ected !eis!ators of both !e$e!s of

o$ernment are respected. <he doub!e aspect

doctrine reconiJes that both 3ar!iament and the

pro$incia! !eis!atures can adopt $a!id !eis!ation

on a sin!e subect dependin on theperspecti$e from which the !eis!ation is

considered, that is, dependin on the $arious

aspects of the matter in Auestion.[(]

=n certain circumstances, howe$er, the powers

of one !e$e! of o$ernment must be protected

aainst intrusions, e$en incidenta! ones, b" the

other !e$e!. or this purpose, the courts ha$e

de$e!oped the doctrines of interurisdictiona!

immunit" and federa! paramountc".[-]

=nterurisdictiona! immunit"[edit]

<he doctrine of interurisdictiona! immunit"

reconiJes that the Canadian Constitution is

based on an a!!ocation of e0c!usi$e powers to

both !e$e!s of o$ernment, not concurrent

powers, a!thouh these powers are bound to

interact. =t is a doctrine of !imited app!ication

which shou!d be restricted to its proper !imit.[]

=nterurisdictiona! immunit" shou!d in enera! be

reser$ed for situations a!read" co$ered b"

precedent. =n practice, it wi!! be !are!" reser$ed

for those heads of power that dea! with federa!

thins, persons or underta&ins, or where in the

past its app!ication has been considered

abso!ute!" indispensab!e or necessar" to

achie$e the purpose for which e0c!usi$e

!eis!ati$e urisdiction was conferred, as

discerned from the constitutiona! di$ision of

powers as a who!e, or what is abso!ute!"

indispensab!e or necessar" to enab!e anunderta&in to carr" out its mandate in what

ma&es it specifica!!" of one urisdiction or the

other.[7]

+hi!e in theor" a consideration of

interurisdictiona! immunit" is apt for

consideration after the pith and substance

ana!"sis, in practice the absence of prior case

!aw fa$ourin its app!ication to the subect matter

at hand wi!! enera!!" ustif" a court proceedindirect!" to the consideration of federa!

paramountc".[8]

/$en in situations where the doctrine of

interurisdictiona! immunit" is proper!" a$ai!ab!e,

the !e$e! of the intrusion on the core of the



power of the other !e$e! of o$ernment must be

considered. <o trier the app!ication of the

immunit", it is not enouh for the pro$incia!

!eis!ation simp!" to affect that which ma&es a

federa! subect or obect of rihts specifica!!" of

federa! urisdiction. <he difference between

LaffectsM and LimpairsM is that the former does not

imp!" an" ad$erse conseAuence whereas the

!atter does. =n the absence of impairment,

interurisdictiona! immunit" does not app!". =t is

when the ad$erse impact of a !aw adopted b"

one !e$e! of o$ernment increases in se$erit"

from affectin to impairin that the core

competence of the other !e$e! of o$ernment or

the $ita! or essentia! part of an underta&in it

du!" constitutes is p!aced in eopard", and not

before.[9]

edera! 3aramountc"[edit]

ccordin to the doctrine of federa!

paramountc", when the operationa! effects of

pro$incia! !eis!ation are incompatib!e with

federa! !eis!ation, the federa! !eis!ation must

pre$ai! and the pro$incia! !eis!ation is rendered

inoperati$e to the e0tent of the incompatibi!it".

<he doctrine app!ies not on!" to cases in which

the pro$incia! !eis!ature has !eis!ated pursuant

to its anci!!ar" power to trench on an area of

federa! urisdiction, but a!so to situations in

which the pro$incia! !eis!ature acts within its

primar" powers, and 3ar!iament pursuant to its

anci!!ar" powers. =n order to trier the

app!ication of the doctrine, the onus is on the

part" re!"in on the doctrine of federa!

paramountc" to demonstrate that the federa!

and pro$incia! !aws are in fact incompatib!e b"

estab!ishin either that it is impossib!e to comp!"

with both !aws or that to app!" the pro$incia! !aw

wou!d frustrate the purpose of the federa! !aw.[1;]

<he facts[edit]

n aerodrome, reistered under the federa!

eronautics ct, was constructed on !and Joned

as aricu!tura! in the pro$ince of Quebec.

Section 2 of the Quebec ct respectin the

preser$ation of aricu!tura! !and and aricu!tura!

acti$ities 5LR3@M6 prohibited the use of !ots

in a desinated aricu!tura! reion for an"

purpose other than aricu!ture, subect to prior

authoriJation b" the Commission de protection

du territoire arico!e du Qu4bec.

Since the CommissionNs permission was not

obtained prior to constructin the aerodrome,

the Commission ordered the return of the !and to

its oriina! state pursuant to the R3@. <he

CommissionNs decision was cha!!ened on the

round that aeronautics is within federa!

urisdiction.

<he courts be!ow[edit]

<he dministrati$e <ribuna! of Quebec, the

Court of Quebec and the Superior Court of

Quebec a!! uphe!d the Commission%s decision,

but the Quebec Court of ppea! found that

interurisdictiona! immunit" prec!uded the

Commission from orderin the dismant!in of the

aerodrome.

Gecision of the Supreme Court of Canada[edit]

<he appea! was dismissed. =nterurisdictiona!

immunit" was he!d to app!" in the matter, under

a two*part test that was stated b" c@ach!in CDF

[27] <he first step is to determine whether the

pro$incia! !aw ... trenches on the protected

LcoreM of a federa! competence. =f it does, thesecond step is to determine whether the

pro$incia! !awNs effect on the e0ercise of the

protected federa! power is sufficient!" serious to

in$o&e the doctrine of interurisdictiona!

immunit".



+hi!e R3@ is $a!id pro$incia! !eis!ation, it

is inapp!icab!e to the e0tent that it impacts the

federa! power o$er aeronautics. <he federa!

aeronautics urisdiction encompasses not on!"

the reu!ation of the operation of aircraft and

airports, but a!so the power to determine the

!ocation of airports and aerodromes. <his power

is an essentia! and indi$isib!e part of aeronautics

and, as such, !ies within the protected core of

the federa! aeronautics power.[1]

=n prohibitin the bui!din of aerodromes on

desinated aricu!tura! !and un!ess prior

authoriJation has been obtained from the

Commission, the R3@ effecti$e!" remo$ed

the tota! area of the desinated aricu!tura!

reions from the territor" that 3ar!iament ma"desinate for aeronautica! uses. <his is not an

insinificant amount of !and, and much of it is

strateica!!" !ocated.[2]

!thouh s. 2 does not steri!iJe 3ar!iamentNs

power to !eis!ate on aeronautics B the doctrine

of paramountc" wou!d permit 3ar!iament to

!eis!ati$e!" o$erride pro$incia! Jonin !eis!ation

for the purpose of estab!ishin aerodromes B, it

ne$erthe!ess serious!" affected the manner inwhich the power can be e0ercised.

=f s. 2 app!ied, it wou!d force the federa!

3ar!iament to choose between acceptin that

the pro$ince can forbid the p!acement of

aerodromes on the one hand, or specifica!!"

!eis!atin to o$erride the pro$incia! !aw on the

other hand. <his wou!d serious!" impair the

federa! power o$er a$iation, effecti$e!" forcin

the federa! 3ar!iament to adopt a different and

more burdensome scheme for estab!ishin

aerodromes than it has in fact chosen to do.

=n the appea!, it had been arued b" Quebec

that interurisdictiona! immunit" did not app!"

where a !aw raises a doub!e aspect. !thouh it

was not necessar" to decide that Auestion, it

was stated that the arument misapprehended

the doctrine of interurisdictiona! immunit"F

<he interurisdictiona! immunit" ana!"sis

presumes the $a!idit" of a !aw and focuses

e0c!usi$e!" on the !awNs effects on the core of a

federa! power.... +hat matters, from the

perspecti$e of interurisdictiona! immunit", is thatthe !aw has the effect of impairin the core of a

federa! competenc". =n those cases where the

doctrine app!ies, it ser$es to protect the

immuniJed core of federa! power from an"

pro$incia! impairment.[']

<he doctrine of federa! paramountc" wou!d not

app!" in this case.[(]

3aramountc" ma" f!ow either from the

impossibi!it" of comp!"in with both federa! and

pro$incia! !aws or from the frustration of a

federa! purpose. Here, there was no operationa!

conf!ict, since the federa! !eis!ation did not

reAuire the construction of an aerodrome and it

is possib!e to comp!" with both the pro$incia!

and federa! !eis!ation b" demo!ishin the

aerodrome.

<here was a!so no e$idence estab!ishin that afedera! purpose reardin the !ocation of

aerodromes was frustrated b" the pro$incia!

!eis!ation. <he federa! reu!ations pro$ide that

the inister responsib!e ma" determine that the

!ocation of each reistered aerodrome is in the

pub!ic interest, but the" do not disc!ose an"

federa! purpose with respect to the !ocation of

aerodromes.

Gissent[edit]

Geschamps D dec!ared that the on!" differencebetween the present case and Quebec 5ttorne"

Eenera!6 $. @acombe 5which was re!eased on

the same da"6 was that @acombe was

concerned with municipa! Jonin and C)3 with

a pro$incia! aricu!tura! Jonin scheme. She

conc!uded that there was no e$idence of an

incidenta! effect that wou!d amount to an



impairment of the core of the federa! aeronautics

power.[-]

=mpact[edit]

<his case, toether with the concurrent case of

@acombe, has further added to the Court%s

urisprudence on Canadian federa!ism in a

sinificant manner. <here has been discussion

as to the consistenc" of these ru!ins in

comparison to pre$ious urisprudence,[] but the

Court%s tests for paramountc" and

interurisdictiona! immunit" in C)3 ha$e been

cited in subseAuent constitutiona! urisprudence,

especia!!" inF

Canada 5ttorne" Eenera!6 $. 3HS Communit"

Ser$ices Societ" 2;11 SCC ((, [2;11] ' SCR

1'( 5'; September 2;116

Quebec 5ttorne" Eenera!6 $. Canada 5Human

Resources and Socia! Ge$e!opment6 2;11 SCC

;, [2;11] ' SCR '- 58 Gecember 2;116

arine Ser$ices =nternationa! @td. $. R"an /state

ature of the doctrine[edit]

3aramountc" is re!e$ant where there is

conf!ictin federa! and pro$incia! !eis!ation. s

aor D e0p!ained in RothmansF

L

11. <he doctrine of federa! !eis!ati$e

paramountc" dictates that where there is an

inconsistenc" between $a!id!" enacted but

o$er!appin pro$incia! and federa! !eis!ation,

the pro$incia! !eis!ation is inoperati$e to the

e0tent of the inconsistenc"....[1]

M

C!aims in paramountc" ma" arise from two

different forms of conf!ictF[2]

)perationa! conf!ict between federa! and

pro$incia! !aws, such that dua! comp!iance isimpossib!e.

+here dua! comp!iance is possib!e, but the

pro$incia! !aw is incompatib!e with the purpose

of federa! !eis!ation, thus frustratin a federa!

purpose. <o determine whether the impuned

!eis!ation frustrates a federa! purpose, it is

necessar" to consider the reu!ator" framewor&

that o$erns the matter in Auestion. <he part"

see&in to in$o&e the doctrine of federa!

paramountc" bears the burden of proof.

Histor"[edit]

<he doctrine was first e0pressed in the @oca!

3rohibition Case, and was subseAuent!"

described b" @ord Gunedin in Erand <run& $.

ttorne" Eenera! of Canada thusF[']

irst, ... there can be a domain in which

pro$incia! and Gominion !eis!ation ma" o$er!ap,

in which case neither !eis!ation wi!! be u!tra

$ires, if the fie!d is c!earI and, second!", ... if the

fie!d is not c!ear, and in such a domain the two

!eis!ations meet, then the Gominion must

pre$ai!.[(]

Historica!!", the doctrine was interpreted $er"

strict!". +hen there was an" o$er!ap between

federa! or pro$incia! !aws the federa! !aw wou!d

a!wa"s render the pro$incia! !aw inoperati$e

e$en where there was no conf!ict. =t was o$er

time that courts and academics bean to

interpret the power as on!" app!"in where

conformit" to one !aw wou!d necessari!" $io!ate

the other. <he Supreme Court of Canada

adopted the !atter interpretation in the decision

of Smith $. <he Queen. <he Court he!d that there

must be an operationa! incompatibi!it" between

the !aws in order to in$o&e paramountc".



<he modern use of the paramountc" doctrine

was articu!ated in u!tip!e ccess $.

cCutcheon. =n that case, both the pro$incia!

and federa! o$ernments had enacted $irtua!!"

identica! insider tradin !eis!ation. <he Courtfound that statutor" dup!ication does not in$o&e

paramountc" as the court had the discretion to

pre$ent doub!e pena!ties. =nstead, paramountc"

can on!" be in$o&ed when then comp!iance with

one means the breach of the other.

!ater e0amp!e of this doctrine was in the

decision of @aw Societ" of #ritish Co!umbia $.

anat, where the Court found an operationa!

conf!ict between the pro$incia! @aw Societ" ctprohibitin non*!aw"ers from appearin in front

of a ude and the federa! =mmiration ct which

a!!owed non*!aw"ers to appear before the

immiation tribuna!.

CitiJen%s =nsurance Compan" of Canada $.

3arsons[1] is a maor Canadian constitutiona!

case decided b" the Dudicia! Committee of the

3ri$" Counci!. <he Counci! interpreted the

propert" and ci$i! rihts c!ause of section 9251'6

in the Constitution ct, 187 to be read

e0pansi$e!" to inc!ude contracts re!ated to

insurance to be within the power of the

pro$incia! o$ernments, whi!e the counter$ai!in

<rade and Commerce c!ause of section 91526

was to be read narrow!".

Contents [hide]

1 #ac&round

2 <he courts be!ow

' t the 3ri$" Counci!

'.1 <rade and Commerce

'.2 =ncorporation of federa! companies

( ftermath

- References

urther readin

#ac&round[edit]

3arsons was the owner of a hardware store in

)rane$i!!e, )ntario that was co$ered b" an

insurance po!ic" pro$ided b" CitiJens% =nsurance

Co. of Canada. t the time the po!ic" was

issued, he a!so had a simi!ar po!ic" in effect with

the +estern ssurance Compan". +hen a fire

burnt down the store in uust 1877, CitiJens%

refused to pa", on the basis that the non*

disc!osure of the +estern po!ic" $io!ated the

terms of its po!ic", as we!! as a statutor"

condition under )ntario%s ire =nsurance 3o!ic"

ct.[2] 3arsons sued to co!!ect on the po!ic",

contendin it did not comp!" with the

presentation reAuirements of the ct.


<he Court of Queen%s #ench entered a $erdict infa$our of 3arsons. CitiJens% appea!ed to the

Court of ppea!, contendin that the pro$incia!

ct was u!tra $ires because of federa!

urisdiction o$er trade and commerce. <he Court

of ppea! he!d the p!aintiffNs contention we!!

founded, and dismissed the appea! with costs.

t the appea! to the Supreme Court of Canada,

Sir )!i$er owat, actin in his ro!e as ttorne"

Eenera! for )ntario, inter$ened to champion3arson%s case. <he Court ru!ed '*2 thatF

<he ire =nsurance 3o!ic" ct was not u!tra $ires

pro$incia! urisdiction, and it app!ied to a!!

insurance companies insurin propert" that was

within the pro$ince.



<he ct was not a reu!ation of trade and

commerce under s. 91526 of the # ct, 187.

=nsurers in )ntario must comp!" with the

statutor" conditions imposed under the

pro$incia! ct.

Ritchie CD asserted that the reu!ation of

insurance contracts fe!! under the pro$incia!

propert" and ci$i! rihts power, statinF

=f an insurance compan" is a trader, and the

business it carries on is commercia!, wh" shou!d

the !oca! !eis!ature, ha$in !eis!ati$e power

o$er propert" and ci$i! rihts, and matters of a

pri$ate and !oca! character, not be enab!ed to

sa" to such a compan"F L=f "ou do business inthe pro$ince of )ntario, and insure propert"

situate here, we ha$e !eis!ati$e contro! o$er

propert" and o$er the ci$i! rihts in the pro$ince,

and wi!!, under such power, for the protection of

that propert" and the rihts of the insured, define

the conditions on which "ou sha!! dea! with such

propert",M it bein possib!" who!!" unconnected

with trade and commerce, as a pri$ate dwe!!in

or farmin estab!ishment, and the person

insured ha$in possib!" no connection with trade

or commerce

How can it be said that such propert" and such

ci$i! rihts or contract sha!! be outside of a!! !oca!

!eis!ation, and so outside of a!! !oca! !eis!ati$e

protection =f the business of insurance is

connected with trade and commerce, the

!eis!ation we are now considerin does not

attempt to prohibit the carr"in on of the

business of insurance, but ha$in the propert"

and the ci$i! rihts of the peop!e of the pro$ince

confided to them this !eis!ation, in re!ation

thereto, is simp!" the protection of such propert"

and of such rihts.[']

Henri /!J4ar <aschereau and Dohn +e!!inton

Ew"nne, who dissented in the Supreme Court

decision, ad$ised Sir Dohn . acdona!d to

consider inter$enin if necessar" to ha$e the

decision appea!ed to the Dudicia! Committee of

the 3ri$" Counci!. =n particu!ar, Ew"nne saidF

L

[CitiJensN =nsurance was] the thin end of the

wede to brin about 3ro$incia! So$ereint"

which = be!ie$e r. owat is !abourin to do.

M

CitiJens% =nsurance appea!ed to the 3ri$"

Counci!, and owat asserted his inf!uence on

the case b" ha$in the pro$ince assume

3arsonNs costs and b" briefin his !aw"ers to

arue that the pro$incia! !eis!ati$e urisdiction

shou!d be broad!" defined, with the Gominion

pre$ented from encroachin upon it.

t the 3ri$" Counci![edit]

<he Supreme Court ru!in was affirmed. <he

Queen%s #ench $erdict was re$ersed, howe$er,

because of outstandin Auestions as to the

interpretation of certain interim notes, and the

matter was remitted bac& to that court forreconsideration.

Sir ontaue Smith noted, as a enera!

proposition, that the #ritish orth merica ct,

187 must be interpreted as an ordinar" statute.

<rade and Commerce[edit]

<he case !are!" turned on the issue of the !awo$er!appin two heads of power. Smith focused

on interpretin the <rade and Commerce power

to which he famous!" stated thatF

<he words reu!ation of trade and commerce,

in their un!imited sense are sufficient!" wide, if



uncontro!!ed b" the conte0t and other parts of

the ct, to inc!ude e$er" reu!ation of trade

ranin from po!itica! arranements in reard to

trade with forein o$ernments, reAuirin the

sanction of par!iament, down to minute ru!es for

reu!atin particu!ar trades.

...

#ut a consideration of the ct shows that the

words were not used in this un!imited sense. =n

the first p!ace the co!!ocation of o. 2 with

c!asses of subects of nationa! and enera!

concern affords an indication that reu!ations

re!atin to enera! trade and commerce were in

the mid of the !eis!ature, when conferrin the

power on the dominion 3ar!iament. =f the words

had been intended to ha$e the fu!! scope of

which in their !itera! meanin the" aresusceptib!e, the specific mention of se$era! of

the other c!asses of subects enumerated in

sect. 91 wou!d ha$e been unnecessar"...

...

Construin therefore the words reu!ation of

trade and commerce b" the $arious aids to their

interpretation abo$e suested, the" wou!d

inc!ude po!itica! arranements in reard to trade

reAuirin the sanction of par!iament, reu!ation

in matters of inter*pro$incia! concern, and it ma"be that the" wou!d inc!ude enera! reu!ation of

trade affectin the who!e dominion.

=n a!!, Smith estab!ished three characteristics of

the trade and commerce powerF

the reu!ation of trade and commerce shou!d

not be read !itera!!"

it inc!udes internationa! and interpro$incia! trade

as we!! as enera! reu!ation of trade affectin

the who!e dominion

it does not e0tend to reu!ate contracts between

businesses.

=ncorporation of federa! companies[edit]

<aschereau D, in his opinion, had e0pressed

concern that, if the 3ar!iament of Canada did not

possess the power to reu!ate companies under

the trade and commerce power, it therefore did

not ha$e the power to incorporate companies.[(]Smith dec!ared that the federa! incorporation

power arose from s. 91%s introductor" wordsF

L

in re!ation to a!! atters not comin within the

C!asses of Subects b" this ct assined

e0c!usi$e!" to the @eis!atures of the 3ro$inces

M

S. 925116 a$e the pro$incia! !eis!atures power

o$er <he =ncorporation of Companies with

3ro$incia! )bects. <herefore, Smith dec!aredF

L

... it fo!!ows that the incorporation of companies

for obects other than pro$incia! fa!!s within theenera! powers of the 3ar!iament of Canada.

M

Howe$er, the power to incorporate does not

confer the e0c!usi$e riht to reu!ate the

contracts it ma" enter into.

ftermath[edit]

3arsons had constitutiona! and po!itica!

conseAuencesF



=t circumscribed the inf!uence of <aschereau and

Ew"nne DD%s hih!" centra!ist $iews in Canadian

constitutiona! urisprudence.

=t sinificant!" restricted the federa! trade and

commerce power for decades in 3ri$" Counci!

urisprudence, which on!" started to s!ow!"transform in the 197;s, beinnin with Ca!oi! =nc.

$. Canada and seein chane in Eenera! otors

of Canada @td. $. Cit" ationa! @easin.

=t represented a maor $ictor" in owat%s

championin of increased pro$incia! rihts,

which recei$ed further support in forthcomin

3ri$" Counci! appea!s in other cases, which

ha$e inf!uenced Canadian po!itica! and

constitutiona! debate to the present da".

Eenera! otors of Canada @td. $. Cit" ationa!

@easin[1] is a !eadin Supreme Court of

Canada decision on the scope of the <rade and

Commerce power of the Constitution ct, 187

as we!! as the interpretation of the nci!!ar"

doctrine.

Contents [hide]

1 #ac&round

2 <he courts be!ow

' t the Supreme Court of Canada

'.1 <he nature of the trade and commerce

power

'.2 /ffect of the anci!!ar" doctrine

( =mpact

- See a!so

References

#ac&round[edit]

rom 197; throuh 198;, Eenera! otors 5E6

so!d $ehic!es to both Cit" ationa! @easin

5C@6 and to C@%s competitors. =t was

disco$ered that E, throuh Eenera! otors

cceptance Corporation, was i$in C@%scompetitor a better interest rate than C@. C@

contended that this was a practice of price

discrimination contrar" to s. '(5165a6 of the

Combines =n$estiation ct, i$in it a cause for

action under s. '1.1 of the ct. =t sued E for

!ost profits, re!ated interest, and breach of

contract for damaes arisin after arch 198;.

=n its defence, E arued thatF

certain pararaphs of the statement of c!aim

shou!d be struc& out as disc!osin no cause of

action because E had ne$er made an" sa!es

direct!" to C@ or to its competitors, and thus s.

'(5165a6 of the ct did not app!"

s. '1.1 is u!tra $ires 3ar!iament, bein in pith and

substance !eis!ation in re!ation to pro$incia!

urisdiction for propert" and ci$i! rihts and

matters of a !oca! or pri$ate nature

a!ternati$e!", if s. '1.1 is $a!id, it is not

retrospecti$e and therefore i$es a cause of

action on!" after its proc!amation on Danuar" 1,

197.


t tria!, Rosenber D accepted E%s first

arument, and ad$ised counse! that in $iew of

this findin there was no need to direct

arument toward the u!tra $ires point, the

constitutiona! issue bein academic. He did,

thouh, present his $iews on the aruments that

had been raised as to constitutiona!it". Citin

se$era! authorities,[2] he he!d that the riht of a

pri$ate indi$idua! to sue is not tru!" necessar" for

the Combines =n$estiation ct to be effecti$e,

and, accordin!", s. '1.1 is u!tra $ires the

3ar!iament of Canada. He a!so areed with



E%s third arument, statin that the section

was not retrospecti$e, thus not app!"in to

transactions occurrin prior to 197.

<he )ntario Court of ppea! a!!owed appea! inpart. =n dea!in with the three issues at hand, it

dec!aredF

it was not persuaded that C@ cou!d not hope to

succeed in assertin a c!aim founded on s. '(516

if the matter were to o to tria!.

the ude had erred in proceedin to ma&e a

findin after ha$in indicated to counse! that he

need not hear arument on the matter.

the ude was correct in statin that the section

did not ha$e retrospecti$e effect.

t the reAuest of a!! counse!, it dea!t with the

issue of the $a!idit" of s. '1.1, and dec!ared that,

on the basis of contemporar" urisprudence at

the edera! Court of ppea!,['] the section was

constitutiona!!" $a!id.

@ea$e was ranted b" the Supreme Court ofCanada to appea!, and the case was heard in

conunction with an appea! from the

correspondin case from the edera! Court of

ppea!.

t the Supreme Court of Canada[edit]

<he issues before the Supreme Court were

whetherF

the Combines =n$estiation ct, either in who!e

or in part, was intra $ires 3ar!iament under s.

91526 of the Constitution ct, 187, and

s. '1.1 of the ct[(] 5which created a ci$i! cause

of action6 was interated with the ct in such a

wa" that it too was intra $ires under s. 91526

<he nature of the trade and commerce

power[edit]

=n a unanimous decision, Gic&son CD found that

the ct was $a!id under the enera! branch of

the trade and commerce power, and that the

pro$isions necessari!" incidenta! to the $a!id

subect of the ct were thus $a!id as we!!. =n so

ru!in, he !isted se$era! indicators[-] which B

whi!e neither e0hausti$e nor necessari!" decisi$e

B ma" be used in identif"in such $a!idit"F

the impuned !eis!ation must be part of aenera! reu!ator" scheme

the scheme must be monitored b" the continuin

o$ersiht of a reu!ator" aenc"

the !eis!ation must be concerned with trade as

a who!e rather than with a particu!ar industr"

the !eis!ation shou!d be of a nature that the

pro$inces oint!" or se$era!!" wou!d be

constitutiona!!" incapab!e of enactin

the fai!ure to inc!ude one or more pro$inces or!oca!ities in a !eis!ati$e scheme wou!d

eopardiJe the successfu! operation of the

scheme in other parts of the countr"

=n the case at hand, the SCC found that the ct

was of nationa! scope, aimed at the econom" as

a sin!e interated nationa! unit rather than as a

co!!ection of separate !oca! enterprises. <he


constitutiona!!" incapab!e of passin this

!eis!ation, and the fai!ure to inc!ude one or more

pro$inces or !oca!ities wou!d eopardiJe

successfu! operation of the !eis!ation in other

parts of the countr".

/ffect of the anci!!ar" doctrine[edit]



3re$ious urisprudence had formu!ated a

number of tests, which were not identica!, for

determinin whether a pro$ision is sufficient!"

interated into !eis!ation for sustainin its

constitutiona!it" under the anci!!ar" doctrine.

Gic&son CD noted that such cases focused the

Auestion on a conte0t*specific wa", which did not

!end to enera! princip!es, and saidF

s the seriousness of the encroachment on

pro$incia! powers $aries, so does the test

reAuired to ensure that an appropriate

constitutiona! ba!ance is maintained. =n

sur$e"in past urisprudence it is to be e0pected

that some e0amp!e of patterns between the

appropriate test of fit, and the head of power

under which the federa! !eis!ation is $a!id, wi!!be found. Such patterns e0ist not on!" because

of a possib!e deree of simi!arit" between the

federa! !eis!ation which fa!!s under an" one

head of power, but a!so for the reason that

certain federa! heads of power, for e0amp!e, s.

9251;6, are narrow and distinct powers which

re!ate to particu!ar wor&s and underta&ins and

are thus Auite susceptib!e to ha$in pro$isions

tac&ed*on to !eis!ation which is $a!idated

under them, whi!e other federa! heads of power,

for e0amp!e, trade and commerce, are broadand therefore !ess !i&e!" to i$e rise to hih!"

intrusi$e pro$isions.

He summariJed and out!ined the ana!"sis to be

used in that reard in future casesF

<he court must determine whether the impuned

pro$ision can be $iewed as intrudin on

pro$incia! powers, and if so to what e0tent.

=t must estab!ish whether the act 5or a se$erab!e

part of it6 in which the impuned pro$ision is

found is $a!id.

=n cases under the second branch of s. 91526

this wi!! norma!!" in$o!$e findin the presence of

a reu!ator" scheme and then ascertainin

whether the ha!!mar&s articu!ated b" the Court

ha$e been met b" the scheme. =f the scheme is

not $a!id, that is the end of the inAuir".

=f the reu!ator" scheme is dec!ared $a!id, the

court must then determine whether the

impuned pro$ision is sufficient!" interated withthe scheme that it can be uphe!d b" $irtue of that

re!ationship. <his reAuires considerin the

seriousness of the encroachment on pro$incia!

powers, in order to decide on the proper

standard for such a re!ationship. =f the pro$ision

passes this interation test, it is intra $ires

3ar!iament as an e0ercise of the enera! trade

and commerce power. =f the pro$ision is not

sufficient!" interated into the scheme of

reu!ation, it cannot be sustained under the

second branch of s. 91526.

=n certain cases, it ma" be possib!e to dispense

with some of the aforementioned steps if a c!ear

answer to one of them wi!! dea! with the issue.

or e0amp!e, if the pro$ision in Auestion has no

re!ation to the reu!ator" scheme, the Auestion

of its $a!idit" ma" be Auic&!" answered on that

round a!one.

=mpact[edit]

Eenera! otors, toether with ?ir&bi E $. Rit$i&

Ho!dins =nc., are !eadin cases on the scope of

3ar!iamentNs trade and commerce power,

particu!ar!" with respect to the enera! branch of

that power. =t ref!ects the current $iew of the

Court that fa$ours interpro$incia! economic

interation, especia!!" with the respect to the

$iews e0pressed b" 3eter Ho and +arren

Ero$erF

=t is sure!" ob$ious that maor reu!ation of the

Canadian econom" has to be nationa!. Eoods

and ser$ices, and the cash or credit which

purchases them, f!ow free!" from one part of the

countr" to another without reard for pro$incia!

boundaries. =ndeed, a basic concept of the

federation is that it must be an economic



union.... <he re!ati$e unimportance of pro$incia!

boundaries has become proressi$e!" more

ob$ious as industr" has tended to become more

concentrated.[]

R. $. Crown e!!erbach Canada @td. [1988] 1

S.C.R. (;1, is a !eadin constitutiona! decision

of the Supreme Court of Canada. <he Court

uphe!d the $a!idit" of the )cean Gumpin ct *

now part of the Canadian /n$ironmenta!

3rotection ct * findin that a!! matters re!ated to

po!!utin the ocean are within the e0c!usi$e

urisdiction of the federa! o$ernment owin tothe nationa! concern branch of the peace, order,

and ood o$ernment c!ause in the #ritish

orth merica ct, 187 5now &nown as the

Constitution ct, 1876.

Gefinition

Constitutiona! !aw is the !aw prescribin the

e0ercise of power b" the orans of a State. =t

e0p!ains which orans can e0ercise !eis!ati$e

powers 5ma&e new !aws6, e0ecuti$e power

5imp!ement new !aws6 and udicia! !aws

5adudicatin disputes6 and what those

!imitations are.

Concerns*

!!ocation of o$ernment powers 5!eis!ati$e,

e0ecuti$e, udicia!6 amon centra! and reiona!

authorities is its basic concern.<he protection of

ci$i! !iberties is a!so its concern. constitution

has been described as a Lmirror ref!ectin the

nationa! sou!M.

LConstitutiona!ismM*

word used to con$e" that idea that

o$ernment is ru!ed b" !aw. <he word Lru!e of

!awM is used to con$e" the same idea. <his

describes asociet" in which o$ernment officia!s

must act in accordance with the !aw. Dudicia!independence is needed. <he ru!e of !aw app!ies

to3ar!iament and @eis!atures of the 3ro$ince.

@aws in breach of the constitution ma" be

cha!!ened in court.

Constitutiona! ct 187

=n Canada there is no sin!e constitutiona!

document !i&e the >S.

<he #ritish orth merican ct 1875chaned in

82N to Constitutiona! ct 1876 is simi!ar.

# created a new Gominion of Canada b"

unitin three co!onies of #ritish orth merica

and b" pro$idin the frame wor& for

theadmission of a!! other #ritish orth merican

co!onies.

<he # act estab!ished the ru!es of federa!ism

but did not brea& from its co!onia! past.

issin features of this actF

o amendin c!ause in this act

s9 $ests authorit" o$er Canada b" the QueenNs

representati$e the Eo$ernor Eenera! but theEENs office isno where created in the ct.

o mention or s"stem of responsib!e

o$ernment 5 the prime minster, the cabinet6



=t did not write the Supreme Court into the act

a!thouh s 1;1 a$e authorit" to create it.

GidnNt create a bi!! of rihts but re!ied on #ritish

common !aw.

Constitutiona! ct 1982

' =mportant repairs were made in 1982

.

16

<he" were a domestic amendin formu!a was

adopted

26

the authorit" o$er Canada of the >? 3ar!iament

was terminated

'6

theCharter of Rihts was adopted.

Sti!! $er" hard to comprehend

Canada ct 1982

*a short statue of the >? 3ar!iament which

terminated the authorit" o$er Canada.

<he Constitutiona! ct 1982 *does 2 thinswhich are intended to effect some moderniJation

and rationa!iJation of CanadaNs constitutiona!!aw.

16

the name of the # act is chaned to the

Constitutiona! ct 187. 26 for the first time a

definin of the phrase LConstitution of CanadaN

<he Constitution of Canada

s-2 5 26<he Constitution of Canada inc!udesF

5noteF definition of the Constitution of

Canada6a6<he Canada ct 1982, inc!udin this ctIb6the cts and orders referred to in the

schedu!eI andc6an" amendments to an" ct or

order referred to in pararaph 5a6 or

5b6Gefinition*

=t inc!udes ' cateories of instruments.

a6

<he Canada ct 1982 5inc!udes the Constitution

ct 1982 Schedu!e #6

b6

the cts* is a !ist of '; cts and orders in the

schedu!e to the Constitutiona! ct 1982.

5inc!udes <he Constitution ct 187, its

amendments, theorders in counci! and statues

admittin or creatin new pro$inces and

boundaries, and the statue of +estminster.

c6

comprises new amendments which ma" in the

fute be made to an" of the instruments in thefirst two cateories.

<he Charter of Rihts

is part of the Constitution of Canada because it

is 3art 1 of the C act 1982.

Hea!th Ser$ices #arainin 52;;76

where court he!d that that a statue was in$a!id

as a breach of freedom of association. <hisma&es co!!ecti$e areement neotiations

betweena union and an emp!o"er now superior

to a statue

.



L=nc!udesM

in

s -2526

indicates that the word is not e0hausti$e. <hiswas supported b"

SCC in the

ew #runswic& #roadcastin Co. $ o$a Scotia

5199'6.

<he he!d the unwritten doctrine

par!iamentar" pri$i!ee

shou!d be inc!uded in

the s-2526

definition e$en thouh nomention of it. <he

courtNs decision means the definition can be

e0panded.

Ho be!ie$es that it is best to !ea$e the courts

decisions to unwritten doctrines and written

doctrines as e0hausti$e.

<he new schedu!e omits the pre 187

instruments which o$erned )nt and Qbe and

<he Ro"a! 3roc!amation of 17', the Quebec

ct177(, the Constitutiona! ct of 1791 and the

>nion ct of 18(;.

<he Supremac" C!ause is -2516*

<his ma&es it the supreme !aw of the countr".

1

2

<he /ntrenchment c!ause* -25'6*

<his entrenched the Constitutions ct 1982 andma&es it on!" amendab!e b" the proscribed

procedure.

=mperia! statues* Ho 1.-L3ar!iamentar"

3ri$i!eesM

<he federa! Houses of 3ar!iament and thepro$incia! !eis!ati$e assemb!ies posses a set of

powers and pri$i!ees that are Lnecessar" to

their capacit" to function as !eis!ati$e

bodies.M<his was supported b" the SCC in


5199'6

where

LstranersM

were e0c!uded from the o$a Scotia !eis!ati$e

assemb!".

3ar!iamentar" 3ri$i!ees*

rearded as a branch of the common !aw as it is

not contained in an" statute or other written

instrument and it isthe courts who determine its

e0istence and e0tent.

2 pecu!iar characteristics of 3ar!iamentar"

3ri$i!ees stated b" the SCC in


5199'6



16

=t is part of the Constitutions of Canada

26

the powers authoriJed b" par!iamentar" pri$i!eeare not subect to the Charter Rihts.

=s different from ro"a! preroati$es and other

common !aw powers of o$ernment.

o difference between in constitutiona! status

between !eis!ati$e pri$i!eed and inheritpri$i!eed*both are e0empt from the Charter.

3ar!iamentar" 3ri$i!ees*

a!so inc!udes freedom of speech in debate,

inc!udin from !ea! proceedins for thins said

in debates. =t a!soinc!udes riht of members of

par!iament or !eis!ati$e assemb!ies not to testif"

in court proceedins whi!e 3ar!iament or the

@eis!ature isin Session.

L3reroati$eM

<he ro"a! preroati$e consists of the powers and

pri$i!ees accorded b" the common !aw to the

Crown. <he preroati$e is a branch of

thecommon !aw, because it is the decision of the

courts which ha$e determined its e0istence and

e0tent

.

Case of 3roc!amations 51116.

<

he"are powers and pri$i!ees that are uniAue to

the Crown.

Con$entionsGefinition*

Con$entions are ru!es of the constitution that are

not enforced b" the !aw courts. #ecause the"

are not enforced b" the !aw courts, the"are best

rearded as non*!ea! ru!es, but because the"

reu!ate the wor&in of the constitution, the" areimportant. <he" prescribe the wa" in which!ea!

powers sha!! be e0ercised.

6 Con$ention in Courts K

a!thouh not enforced b" courts, the e0istence of

a con$ention has occasiona!!" been reconiJed

b" the courts.

ie*

@i$erside $ nderson [19(2]

con$entions of responsib!e o$ernment which

ma&e a minster accountab!e to 3ar!iament as

aconsideration in decidin to i$e a broad rather

than narrow interpretation to a statue conferrin

power on a inster .

3atriation Reference519816*

SCC

was as&ed whether there was a con$ention

reAuirin that the consent of the pro$inces be

obtained before the federa!o$ernment

reAuested the >nited ?indom to enact an

amendment to the Consti of Canada. <hat wou!d

affect the pro$inces. <he court wasa!so as&ed

whether there was a !ea! reAuirement for

pro$incia! consent.

#6 Con$ention in >sae*

con$ention is a ru!e.



LusaeM

is not a ru!e, but mere!" a o$ernmenta! practice

which is ordinari!" fo!!owed,a!thouh it is not

reAuired as ob!iator"

.

ie of >sae* the practice of appointin to the

position of Chief Dustice of Canada the person

who isthe senior puisne ude of the SCC at the

time of the $acanc". <his practice has been

departed with the appointment of c@ach!in in

2;;;. L

usaeM

ma" de$e!op into a con$ention. <he process of

e$o!ution from usae to con$ention ma" be

ca!!ed a L

custom.M

con$ention

isas unenforceab!e as a

usae.

<here is a stron mora! ob!iation to fo!!ow a

con$ention

than a

usae

and departure from a con$ention wi!! be

criticised more.

3atriation Reference

5 19816*

Ho 1.1;5c6

the court found the con$ention reAuired a

Lsubstantia! dereeM of pro$incia!consent but it

was not necessar" to decide e0act!" what the

reAuisite deree is.

C6 Con$ention in reement*

con$ention can be estab!ished b" a!! re!e$ant

officia!s areein to adopt a certain ru!e of

constitutiona!conduct, then that ru!e ma"

immediate!" come to be rearded as ob!iator"

and are usua!!" written down b" the officia!s in

precise andauthoritati$e terms.

5ie

*19'; when the 3rime inster of the se!f

o$ernin dominions of the Commonwea!th

areed that the &in 5 or Queen6 wou!d appoint

the Eo$ernor Eenera! of a dominion so!e!" on

the ad$ice of the o$ernment of the dominion.6

G6 Con$ention and @aw K

con$ention cou!d be transformed into !aw b"

bein enacted as a statue. con$ention wou!d

a!so betransformed into !aw if it is enforced b"

the courts. =f a court did enforce a con$ention5and admitted!" no court has e$er done so6,

thecon$ention wou!d be transformed into a !ea!

ru!e.

+h" do peop!e obe" them if not !aw

<he breach of a con$ention wou!d resu!t

inserious po!itica! repercussions and

e$entua!chanes in !aw.

Con$entions

reu!ate the wa" in which !ea! powers sha!! be

e0ercised and brin outdated !ea! powers into

conformit" with currentnotions of o$ernment.

<heir purpose is to Lis to ensure that !ea!

framewor& of the $a!ues or princip!es of the

period

M



ReF Reso!ution to mend the Constitution

[1981] 1 SCR

/6 Con$ention and 3o!ic"*

3ub!ic Schoo! #oards ssn $ !ta. [2;;;

/n!ish Catho!ic <eachers Case $ )nt [2;;1]*

pub!ic schoo!supported arued that pro$incia!

educationa! statues $io!ated a constitutiona!

con$ention. He!d* in both cases that no

con$ention restrictedthe po!ic" or substance of

what cou!d be enacted b" the pro$incia!

@eis!ature in e0ercise in its power to ma&e !aws

in re!ation toeducation. Con$entions affected

on!" the structure of o$ernment power, not the

po!ices to which o$ernment power wasaddressed.

Reference re Secession of Quebec

, [

1998] 2 S.C.R. 217

Constitutiona!it" of uni!atera! separation of

Quebec

He!d*

Quebec cannot secede

2

'

from Canada uni!atera!!"I howe$er, a c!ear $oteto secede in a referendum shou!d !ead to

neotiations between Quebec and the rest of

Canada for secession.

Ho 1.8*

<he SCC in$o&ed unwritten princip!es of

democrac", federa!ism, constitutiona!ism and the

protection of minorities to ho!d that,if a pro$ince

were to decide in a referendum that it wanted to

succeed from Canada, the federa! o$ernment

and other pro$inces wou!dcome under a !ea!

dut" to enter into neotiations to accomp!ish the

secessions. <his i!!ustrates the acti$e and

creati$e ro!e that the modernSupreme Court has

car$ed out for itse!f.

ain Con$entions

=.the o$ernor enera! on!" acts on the ad$ice of

the 3ri$" Counci!==.this 3ri$" Counci! is not the

fu!! Counci! described in s1' of the Constitution

ct 187 but rather a sma!!er subset, the

Cabinet===.the cabinet chosen b" the 3rime

inister, and the number of ministers is up tohimTher =U.the primes minster, a!thouh no

where mentioned in the Constitution ct 187, is

the head of o$ernmentU.the prime minster and

hisTher cabinet must ha$e the support of a

maorit" of members in the house of

commonsU=.the prime minster and hisTher

cabinet must ha$e seats in the House of

Commons or SenateU==.House of Commons

support for 3rime insters and cabinets is

ra!!ied b" means of 3o!itica! parties andU===.

fai!ure to command and support of a maorit" ofmembers in the House of Commons resu!ts in

the o$ernment steppin down andusua!!" the

ca!!in of a enera! e!ection.

)ther Con$entions

=.<he e0ercise of preroati$e powers b" the

crown==.<he operation of 3ar!iament and the

!eis!atures enera!!", inc!udin po!itica! parties

and at the nationa! !e$e!, the re!ationship

betweenthe e!ected house of Commons and the

appointed Senate===.<he operation of the federa!and pro$incia! cabinets, minsters and ci$i!

ser$ices and the re!ationship amon

them=U.edera!ism enera!!", aside from the

forma! di$isions or powers, inc!udin reser$ation

and disa!!owance of federa! and 3ro$incia!

actsand the ro!e the federa!!" appointed

!ieutenant o$ernor in pro$incia! mattersU.<he

ro!e of udes and courts in the o$ernmenta!



process and the independence of udes and

courts interference b" the e0ecuti$eand

!eis!ati$e branches and

2. mendin 3rocedures

Constitution ct, 1982

, 3art U, ss.'8*(9Ho, chapter (,

LmendmentM, and chapter -.7, LSecessionM

Reference re Secession of Quebec

, [1998] 2 S.C.R. 2173art U of the Constitution

ct, 1982Ho (.25a6

3art U of the Consti ct 1982 is headed

L3rocedure for mendin Constitution of

Canada.M =t pro$ides - different amendin

procedures.

1.

enera! amendin procedure5s'86

for amendments not otherwise pro$ided for5as

we!! as for amendments !isted in s(26reAuirin

theassents of the federa! 3ar!iament and 2T' of

the pro$inces representin -; per cent of the

popu!ationI

2.

>nanimit" procedure5s(16,

for fi$e defined &inds of amendments, reAuirin

the assents of the federa! 3ar!iament and a!! of

the pro$inces,

'.

some but not a!! pro$inces procedure5s('

6,for amendment of pro$isions and on!" those

pro$inces affectedI

(.

<he federa! 3ar!iament a!one5s((6

has power to amend pro$isions re!atin to the

federa! e0ecuti$e and House of 3ar!iament Iand

-.

/ach 3ro$incia! @eis!ature a!one5s(-6

has power to amend Lthe constitution of the

pro$inceM.

'

(

mendin 3rocedures

F ound in 3t U Const ct 1982.

s'8

LEenera!MI

s(1

L>nanimit"MI s('F LSome but not !! 5pro$s6MI

these must conform to the Charter. !so, s((

mendments in re! to Housesof 3ar!t and /0ecI

s(- 3ro$! Constitutiona! mendments

s'8LEenera!M a&a L7T-; Ru!eM

K reAuires reso!utions to be passed b"F Senate V

HofC V 7 of the 1; 3ro$inces which ha$e in tota!

at !east -;: of the popu!ation.>se forF residua!,

when other procedures do not app!" as we!! as

those !isted in

s(2.

# no sin!e pro$ has constitutiona!!"

entrenched $eto

*'9516F

must wait 1 "ear to proc!aim 5un!ess a!! ha$e

consentedTdissented6 5a!!ows time to consider6*

'9526F

e0pires in ' "ears if reAuired consent not

achie$ed



)ptin outF'85'6

app!ies to Lan" amendt that deroates from the

!eis!ati$e powers, proprietar" rihts or an" other

rihts or pri$i!ees of the!eis!ature or

o$ernment of a pro$inceM

pro$ can pass

reso!ution of dissent

W amendt wi!! not ta&e effect in that pro$ince

ust be done prior to proc!amation

'85(6F

reso!ution of dissent can be re$o&ed at an" time,

but(526F

reso!ution of assent cannot be re$o&ed after

proc!amation

s(;

compensates pro$s for optin out, for an"

transfer of 3ro$! !eis!ati$e powers to ed! o$t

5in re!ation to

education

or

cu!tura!

matterson!"6.

Reiona! Ueto Statute

F no amendt can be authoriJed un!ess it has first

been considered b" a maorit" of the pro$inces

that inc!udesF )nt, Que, #C,2V t!antic 3ro$s

rep min -;: pop, 2V 3rairie 3ro$s rep min -;:

pop. pp!ies to amendments thatF do not a!!ow

for optin out, and mustotherwise fo!!ow the

enera! 7T-; procedure. Goes not app!" to F

s(15unanimit"6 or s(' 5some but not a!!6

amendments.

S(1L>nanimit" Ru!eM

K used for matters of nationa! sinificance which

shou!d not be a!tered o$er the obection of e$en

one pro$ince. #

s'9

time !imits do not app!".

S('LSome but not a!!M 3ro$ision

K used for !anuae usae within a pro$ince,

a!terin pro$! bopundaries. oteF protection of

minoritiesis afforded b" the fact that it a!so

reAuires reso!utions of the Senate and HofC 5ie

ed! !e$e! appro$a!6 as we!! as the affected

pro$inces

Hoan $ ewfd!nd

52;;;6.

s((.<he >ni!atera! edera! ormu!a

and co$ers amendments to the L

Constitution of CanadaM

in re!ation to the federa! e0ecuti$e, or Senate

and the House of Commons* pro$ided that the

amendments do not fa!! within the cateor" of

amendments cauht b" the Eenera!and

>nanimit" ormu!a.

S(-3ro$! @eis! !one



K !aws amendin constitution of pro$ 5ie those

that bear Lon the operation of an oran of o$t of

the pro$inceM K SCC6. ote does

not

inc!udeF Const! uarantee of !anuae rihts5per SCC in

E Quebec $ #!ai&ie

, now e0p!icit in s(-6. !soF

)3S/> $)ntario

[1987]F3rofound constit! uphea$a! b" the

introduction of po!itica! institutions forein to and

incompatib!e with the CanadianS"stem.uture

mendments

rench Canadian ationa!ism

F 1982 amendments reduced power of Que at!

ssemb!", Que was on!" pro$ that did not aree

with them.eech @a&e ccord 1987 K to

appease Que, but fe!! short of ratification b" 2

pro$s. Char!ottetown ccord 1992 reected in

ationa!Referendum. Quebec then he!d 2

nd

ref 199-. Gefeated b" on!" (9.(: K -;.:.

+estern Reiona!ism

F #u!& of CanadaNs pop is in Que V )n. So ed!

po!icies fa$our manuf industr" and consumers of

centra! Can. +estre!ies on prod of wood, oi!,

as, meta!s. ResponseF 1. to increase 3ro$! o$t

power which the +est can more easi!" contro!

and decr ed! power 5per 1982 amendments6,and 2. a&e centra! institutions more responsi$e

to reiona! concerns.

boriinba! 3eop!es Gemands

F entrenchment of traditiona! rihts

. S'-

F uarantees e0istin aboriina! and treat" rihts.

S'7 commits tofurther discussions. <he" a!so

see&F entrenchment of e0p!icit riht t se!f o$t,

and to participate in const! amendmt process

where aboriina!rihts ma" be affected.5Char!ottetown ccord wou!d ha$e done so but

was defeated6.

/ntrenchment of Charter Rihts

F note o$erride pro$ision was inserted to obtain

areement. ote a!so Quebec ne$er areed with

theCharter "et sti!! !ea!!" bindin on the

pro$ince.

Gi$ision of 3owers

F Reducin ed! and incr 3ro$! power easiest

wa" to address rench Candian and +estern

Canadian rie$ances. 1982amendmts incr pro$!

power o$er natura! resources. )n the other

handF /n!arement of certain ed! powers ma"

faci!itate effecti$e nationa!

(

cti$it" 52;6

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C Constitutiona! ssement /0amination

Constitutiona! @aw C Summar"

?C )nuibo


DedXriedmanX87((

C Con @aw E>=G/ 2;12.paes

m" ac!pine

3re$iouse0t3ae 1 of 8

Read >n!imited #oo&

Ge!amuu&w $. #ritish Co!umbia [1997] ' S.C.R.

1;1;, a!so &nown as Ge!amuu&w $s. the

Queen is a decision of the Supreme Court of

Canada where the Court e0press!" and e0p!icit!"

dec!ined to ma&e an" definiti$e statement on the

nature of aboriina! tit!e in Canada. <he Court

he!d at pararaphs 7(, 7- and 77 that, [7(] =

reect the submission with respect to the

substitution of aboriina! tit!e and se!f*

o$ernment for the oriina! c!aims of ownership

and urisdiction \ [7-] <he content of common

!aw aboriina! tit!e, for e0amp!e, has not been

authoritati$e!" determined b" this Court \ [77]

<his defect in the p!eadins pre$ents this Court

from considerin the merits of this appea!.M

<he re!e$ance of the case for aboriina! tit!e

deri$es from what the Chief Dustice @amer ru!ed

in a dia!oue from the #ench with counse! #ruce

C!ar& appearin on a pre!iminar" obection to the

Court%s territoria! urisdiction based upon the

=ndian <ribe%s unsurrendered territoria!

so$ereint". <he Court <ranscript finds the Chief

Dustice sa"in, L=f "ou had decided to initiate or if

"ou decide tomorrow mornin to initiate in the

Supreme Court of #ritish Co!umbia an action for

dec!arator" re!ief sa"in that the #ritish

Co!umbia courts ha$e no urisdiction, that is a



different matter and "ou cou!d be aruin to the

ude that, we!!, this is an issue that has ne$er

been tried.\ <here is no doubt that it is a

constitutiona! issue. \ =s that a!! "ou ha$e to sa"

on the constitutiona! AuestionM[1]

or these reasons the precedent $a!ue of the

Ge!amuu&w is that the constitutiona! Auestion

of the paramountc" o$er a Crown Eo$ernmentNs

and CourtNs urisdiction of an =ndian <ribeNs

territoria! so$ereint" pendin proof of a

surrender, b" treat", is a !eitimate and

outstandin constitutiona! Auestion that this

Court has ne$er decided, because it has ne$er

been tried. side from that, the Court e0press!"

and e0p!icit!" refused to decide an"thin of

precedent $a!ue reardin the =ndianconstitutiona! interest.

Contents [hide]

1 Court proceedins

2 3ro$incia! o$ernment position

' Supreme Court ru!in

( ftermath

- otes

References

7 /0terna! !in&s

Court proceedins[edit]

<he proceedins were started in 198( b" the

Eit&san and the +et%suwet%en ation. <he"

b"passed the s!ow edera! @and C!aims process

in which the #ritish Co!umbia 3ro$incia!

Eo$ernment wou!d not participate.

<he" c!aimed ownership and !ea! urisdiction

o$er 1'' indi$idua! hereditar" territories, a tota!

of -8,;;; sAuare &i!ometres of northwestern

#ritish Co!umbia, an area !arer than the

pro$ince of o$a Scotia.

<he Eit&san and +itsuwit%en used their ora!

histories as principa! e$idence in the case.

3ro$incia! o$ernment position[edit]

<he Crown of #ritish Co!umbia insisted that a!!

irst ations !and rihts in #ritish Co!umbia were

e0tinuished b" the co!onia! o$ernment before

it became part of Canada in 1871. oreo$er,

Chief Dustice !!an c/achern ru!ed that

aboriina! rihts in enera! e0isted at the

p!easure of the crown and cou!d thus be

e0tinuished whene$er the intention of the

Crown to do so is c!ear and p!ain. 5=n the Court

of ppea!, the 3ro$ince chaned its position to

arue that aboriina! !and rihts had not been

e0tinuished.6 >nder his reasonin, the

boriina! tit!e and boriina! riht of se!f*

o$ernment c!aimed b" the p!aintiffs had been

erased o$er a centur" pre$ious!", and as such

were prec!uded from Aua!if"in as e0istin

rihts under subsection '-516 of the Constitution

ct, 1982. His ru!in was seen b" man" as

serious!" at odds with Supreme Court of Canadaru!ins dea!in with constitutiona! boriina! and

treat" rihts, and was a!so criticiJed for its

apparent bias in both tone and ana!"tic

approach.[2] Dustice c/achern found that the

broad concepts embodied in ora! tradition, did

not conform to uridica! definitions of truth,[']

statinF = am unab!e to accept adaaw&, &una0

and ora! traditions as re!iab!e bases for detai!ed

histor" but the" cou!d confirm findins based on

other admissib!e e$idence.[(][-] !thouh these

courtroom proceedins estab!ished the

precedent of irst ations presentin their

c!aims to !and throuh the use of ora! tradition,

Dustice c/achern ru!ed that ora! tradition cou!d

not stand on its own as historica! e$idence. =n

order to bear an impact on the proceedins it

must be supported b" forms of e$idence

reconiJed b" the court.



Supreme Court ru!in[edit]

<he Supreme Court made no decision on the

!and dispute, insistin that another tria! was

necessar". Specifica!!", [at pararaph 7( of theCourt%s decision] the Court he!d, = reect the

submission with respect to the substitution of

aboriina! tit!e and the se!f*o$ernment for the

oriina! c!aims of ownership and urisdiction....

[pararaph 7-] <he content of common !aw

aboriina! tit!e, for e0amp!e, has not been

authoritati$e!" determined b" this Court...

[pararaph 77] <his defect in the p!eadins

pre$ents this Court from considerin the merits

of this appea!.

<he !ea! sinificance of those passaes is that

the =ndian =nterest within the meanin of

section 1;9 of the Constitution ct, 187, was

not in$o!$ed in the appea!. Section 1;9 is the

section that sa"s the Crown%s

C)S<=<><=)@ =nterest is subect to the

=ndian C)S<=<><=)@ =nterest so !on as

the =ndian =nterest has not been so!d to the

Crown b" a $a!id treat". =t confirms that =ndian

so$ereint", i.e., e0c!usi$e urisdiction and so!e

possession, is the supreme !aw of the !andpendin treat" and, correspondin!", estab!ishes

the utter irre!e$ance of Crown 3ar!iamentar"

!eis!ation and Crown court recent in$entions

based upon the common !aw.

=t is wide!" he!d that <he ru!in a!so made

important statements about the !eitimac" of

=ndienous ora! histor" ru!in that ora! histories

were ust as important as written testimon".[] [7]

=t has been c!aimed that the case was

improper!" framed b" the !aw"ers who fi!ed the

case and it decided nothin nor cou!d it ha$e

decided an"thin.[8]

ftermath[edit]

<he Ge!amuu&w court case has important

imp!ications for the histor" of Canada and for the

idea of histor" itse!f. =n this case the court a$e

reater weiht to ora! histor" than to written

e$idence. )f ora! histories the court said the"are tanentia! to the u!timate purpose of the fact*

findin process at tria! ** the determination of the

historica! truth.

=n air Countr", Dohn Ra!ston Sau! writes

about the broader sinificance of the court%s

reconition of ora! e$idence as carr"in as much

or reater weiht as written e$idence, on

Canadian societ".

<he on!" !ea! difficu!t" with Sau!%s perception is

that ora! histor" is not re!e$ant to the definition of

the =ndian <ribes% constitutiona! interest, that

bein determined b" the paramountc" c!ause

section 1;9 of the Constitution ct, 187, as

sett!ed b" the precedents St Catherine%s i!!in

and @umber Co. $. <he Queen,[9] and ttorne"

Eenera! of Canada $. ttorne" Eenera! of

)ntarioF =n re =ndian C!aims,[1;] <hose cases

he!d the =ndian constitutiona! =nterest isparamount o$er the Crown%s constitutiona!

=nterest unti! surrendered b" treat", that bein

the !ea! conseAuence of the treat" process in

Canada.

Haida ation $. #ritish Co!umbia 5inister of

orests6, [2;;(] ' S.C.R. -11 is the !eadin

decision of the Supreme Court of Canada on the

Crown dut" to consu!t boriina! roups prior to

e0p!oitin !ands to which the" ma" ha$e c!aims.

Contents [hide]



1 #ac&round

2 Dudment of the Court

' References

( /0terna! !in&s

#ac&round[edit]

=n 191 the pro$incia! o$ernment of #ritish

Co!umbia issued a <ree arm @icence 5<@

'96 o$er an area of !and to which the Haida

ation c!aimed tit!e. <his tit!e had not "et been

reconiJed at !aw. <he Haida ation a!so

c!aimed an boriina! riht to har$est red cedar

in that area. =n 1981, 199-, and 2;;; the

inister rep!aced <@ '9I in 1999 the inister

authoriJed a transfer to +e"erhauser Co. <hese

actions were performed uni!atera!!", without

consent from or consu!tation with the Haida

ation. <he Haida ation brouht a suit,

reAuestin that the rep!acement and transfer be

set aside.

<he chambers ude found that the Crown was

under a mora! K but not !ea! K dut" to neotiate

with the Haida ation. <he #ritish Co!umbia

Court of ppea! re$ersed this decision, decidin

that both the Crown and +e"erhauser Co. are

under !ea! ob!iations to consu!t with boriina!

roups whose interests ma" be affected.

Dudment of the Court[edit]

Chief Dustice c@ach!in, writin for a unanimous

court, found that the Crown has a dut" to

consu!t with boriina! peop!es and

accommodate their interests.[1] <his dut" is

rounded in the honour of the Crown, andapp!ies e$en where tit!e has not been pro$en.

<he scope of this dut" wi!! $ar" with the

circumstancesI the dut" wi!! esca!ate

proportionate!" to the strenth of the c!aim for a

riht or tit!e and the seriousness of the potentia!

effect upon the c!aimed riht or tit!e. Howe$er,

reard!ess of what the scope of the dut" is

determined to be, consu!tation must a!wa"s be

meaninfu!.

+here there is a stron prima facie case for the

c!aim and the ad$erse effects of theo$ernment%s proposed actions impact it in a

sinificant 5and ad$erse6 wa", the o$ernment

ma" be reAuired to accommodate. <his ma"

reAuire ta&in steps to a$oid irreparab!e harm or

minimiJe the effects of the infrinement.

#oth sides are reAuired to act in ood faith

throuhout the process. <he Crown must intend

to substantia!!" address the concerns of the

boriina! roup throuh meaninfu!consu!tation, and the boriina! roup must not

attempt to frustrate that effort or ta&e

unreasonab!e positions to thwart it.

)n the facts of the case, the Court found that

the Haida ation%s c!aims of tit!e and an

boriina! riht were stron, and that the

o$ernment%s actions cou!d ha$e a serious

impact on the c!aimed riht and tit!e. ccordin!",

the Crown had a dut" to consu!t the Haidaation, and !i&e!" had a dut" to accommodate

their interests.

<he Crown%s dut" of ood*faith consu!tation

does not e0tend to third parties, and cannot be

de!eated to them b" the Crown. <his is not to

sa" that third parties cannot be !iab!e to

boriina! roups in ne!ience, or for dea!in

with them dishonest!". Howe$er, it does mean

that the !ea! ob!iation of consu!tation andaccommodation is shou!dered e0c!usi$e!" b" the

Crown.

ccordin!", the Crown%s appea! was dismissed

and +e"erhauser Co.%s appea! was a!!owed.



ord $. Quebec 5ttorne" Eenera!6, [1988] 2

S.C.R. 712 is a !andmar& Supreme Court of

Canada decision in which the Court struc& downpart of the Charter of the rench @anuae,

common!" &nown as #i!! 1;1. <his !aw had

restricted the use of commercia! sins written in

!anuaes other than rench. <he court ru!ed

that #i!! 1;1 $io!ated the freedom of e0pression

as uaranteed in the Canadian Charter of Rihts

and reedoms.

Contents [hide]

1 #ac&round

2 ftermath

' See a!so

( /0terna! !in&s

#ac&round[edit]

<he appea!, !aunched b" the o$ernment of

Quebec, conso!idated man" cases initiated b"

ontrea!*area merchants such as ontrea!f!orist H"man Siner and +est =s!and woo! shop

owner Ua!erie ord. <he" had been fined for

$io!ation of the Charter of the rench @anuae

and decided to fiht the case in court. o!!owin

comp!aints, the )ffice Au4b4cois de !a !anue

franaise had instructed them to inform and

ser$e their customers in rench and rep!ace

their bi!inua! rench and /n!ish sins with

uni!inua! rench ones. <he Supreme Court of

Canada uphe!d the decisions of the Quebec

Superior Court and the Quebec Court of ppea!.

ftermath[edit]

=n !ate 1989, short!" after the Supreme Court%s

decision, premier Robert #ourassa%s @ibera!

3art" of Quebec o$ernment passed #i!! 178,

ma&in minor amendments to the Charter of the

rench @anuae. ReconiJin that the

amendments did not fo!!ow the Supreme Court%s

ru!in, the pro$incia! !eis!ature in$o&ed section

'' of the Canadian Charter 5a!so &nown as the

notwithstandin c!ause6 to shie!d #i!! 178 from

re$iew b" courts for fi$e "ears.

<his mo$e was po!itica!!" contro$ersia!, both

amon Quebec nationa!ists who were unhapp"

with the chanes to the Charter of the rench

@anuae, and amon /n!ish*spea&in

Quebecers who opposed the use of the

notwithstandin c!ause. <ension o$er this issue

was a contributin factor to the fai!ure of the

eech @a&e ccord.

=n 199', the Charter of the rench @anuae

was amended in the manner suested b" the

Supreme Court of Canada. #i!! 8 was enacted

b" the #ourassa o$ernment to amend the

charter. =t now states that rench must be

predominant on commercia! sins, but a

!anuae other than rench ma" a!so be used.

ccordin!", the !aw no !oner in$o&es the

notwithstandin c!ause.

R. $. )a&es [198] 1 S.C.R. 1;' is a case

decided b" the Supreme Court of Canada which

estab!ished the famous )a&es test, an ana!"sis

of the !imitations c!ause 5Section 16 of the

Canadian Charter of Rihts and reedoms that

a!!ows reasonab!e !imitations on rihts and

freedoms throuh !eis!ation if it can bedemonstrab!" ustified in a free and democratic

societ".

Contents [hide]

1 #ac&round



2 Court%s reasons

' References

( /0terna! !in&s

#ac&round[edit]

)n Gecember 17, 1981, Ga$id /dwin )a&es

was cauht with 8 $ia!s of hashish oi! outside of

a ta$ern in @ondon, )ntario. He c!aimed he had

purchased 1; $ia!s of hashish oi! for O1-; for his

own use. He was a!so in possession of O19.(-

which he c!aimed to ha$e recei$ed from a

o$ernment proram. Gespite )a&es% protests

that the $ia!s were meant for pain re!ief and that

the mone" he had was from a wor&ers%

compensation cheAue, Section 8 of the arcotic

Contro! ct 5C6 estab!ished a %rebuttab!epresumption that possession of a narcotic

inferred an intention to traffic un!ess the accused

estab!ished the absence of such an intention.

)a&es made a charter cha!!ene, c!aimin that

the re$erse onus created b" the presumption of

possession for purposes of traffic&in $io!ated

the presumption of innocence uarantee under

section 115d6 of the Charter. <he issue before

the Court was whether s. 8 of the C $io!ateds. 115d6 of the Charter, and whether an" $io!ation

of s. 115d6 cou!d be uphe!d under s. 1.

Court%s reasons[edit]

<he Court was unanimous in ho!din that the

shift in onus $io!ated both )a&es%s section 115d6

rihts and indirect!" his section 7 rihts, and

cou!d not be ustified under section 1 of the

charter. <his was because there was no rationa!

connection between basic possession and the

presumption of traffic&in, and therefore the shift

in onus is not re!ated to the pre$ious cha!!ene

to section 115d6 of the charter.

<he Court described the e0ceptiona! criteria

under which rihts cou!d be ustifiab!" !imited

under section 1. <he Court identified two main

functions of section 1. irst, it uarantees the

rihts which fo!!ow it, and second!", it states

the criteria aainst which ustifications for

!imitations on those rihts must be measured.

<he &e" $a!ues of the Charter come from the

phrase free and democratic societ" and shou!d

be used as the u!timate standard for

interpretation of section 1. <hese inc!ude $a!ues

such asF

respect for the inherent dinit" of the humanperson, commitment to socia! ustice and

eAua!it", accommodation of a wide $ariet" of

be!iefs, respect for cu!tura! and roup identit",

and faith in socia! and po!itica! institutions which

enhance the participation of indi$idua!s and

roups in societ".

Charter rihts are not abso!ute and it is

necessar" to !imit them in order to achie$e

co!!ecti$e oa!s of fundamenta! importance.

<he Court presents a two step test to ustif" a

!imitation based on the ana!"sis in R. $. #i

Gru art. irst, it must be an obecti$e re!ated

to concerns which are pressin and substantia!

in a free and democratic societ", and second it

must be shown that the means chosen are

reasonab!e and demonstrab!" ustified.

<he second part is described as a

proportiona!it" test which reAuires the in$o&in

part" to showF

irst, the measures adopted must be carefu!!"

desined to achie$e the obecti$e in Auestion.

<he" must not be arbitrar", unfair or based on



irrationa! considerations. =n short, the" must be

rationa!!" connected to the obecti$e. Second,

the means, e$en if rationa!!" connected to the

obecti$e in this first sense, shou!d impair as

!itt!e as possib!e the riht or freedom in

Auestion. <hird, there must be a proportiona!it"

between the effects of the measures which are

responsib!e for !imitin the Charter riht or

freedom, and the obecti$e which has been

identified as of sufficient importance.

=n app!"in this test to the facts the Court found

that section 8 does not pass the rationa!

connection test as the possession of a sma!! or

ne!iib!e Auantit" of narcotics does not support

the inference of traffic&in ... it wou!d be

irrationa! to infer that a person had an intent to

traffic on the basis of his or her possession of a

$er" sma!! Auantit" of narcotics. <herefore,

section 8 of the arcotics Contro! ct is in

$io!ation of the Charter and is of no force or

effect.

!berta $. Hutterian #rethren of +i!son Co!on" is

a freedom of re!iion decision b" the SupremeCourt of Canada. <he court addressed whether

a reAuirement that a!! !icensed dri$ers be

photoraphed unconstitutiona!!" $io!ated the

Hutterites% riht to freedom of re!iion.

#ac&round[edit]

<he Hutterites be!ie$e that the" cannot consent

to bein photoraphed. 3re$ious!", an e0ception

had been made from the photoraphreAuirement b" the !berta o$ernment.

Howe$er, the o$ernment now &eeps the

photoraphs in a !are database to pre$ent

identit" theft, and ended the e0emption. !berta

c!aimed that ma&in a constitutiona! e0ception

for the Hutterites wou!d undermine its attempts

to pre$ent such fraud.

<he !berta Court of ppea! found for the

Hutterites.

)pinion of the Court[edit]

<he o$ernment of !berta conceded that this

was a $io!ation of the Hutterites% re!iious

freedom 5protected under Section 2 of the

Canadian Charter of Rihts and reedoms6 but

arued that this $io!ation was a!!owab!e under

Section 1%s reasonab!e !imits on Charter rihts.

<he Hutterites maintained that this was an

unreasonab!e !imit.

Chief Dustice c@ach!in, writin for the maorit",

found the !aw constitutiona!. She found that the

o$ernment%s need to fiht fraud was pressin,

and that dri$in was not a riht, so the

o$ernment was entit!ed to attach !eitimate

conditions to it.

<hree ustices dissented and wou!d ha$e not

reAuired the Hutterites to be photoraphed to be

!icensed. =n three separate opinions, Dustices be!!a, @e#e!, and ish found that this po!ic"

was not minima!!" impairin, since it wou!d not

sinificant!" enab!e identit" theft to a!!ow the

e0ceptions, and it wou!d ha$e a !are

detrimenta! effect on the Hutterites% wa" of !ife,

since the" wou!d ha$e to emp!o" outsiders to

perform a!! their necessar" dri$in.

!berta $. Hutterian #rethren of +i!son Co!on" is

a freedom of re!iion decision b" the Supreme

Court of Canada. <he court addressed whether

a reAuirement that a!! !icensed dri$ers be

photoraphed unconstitutiona!!" $io!ated the

Hutterites% riht to freedom of re!iion.



#ac&round[edit]

<he Hutterites be!ie$e that the" cannot consent

to bein photoraphed. 3re$ious!", an e0ception

had been made from the photoraph

reAuirement b" the !berta o$ernment.

Howe$er, the o$ernment now &eeps thephotoraphs in a !are database to pre$ent

identit" theft, and ended the e0emption. !berta

c!aimed that ma&in a constitutiona! e0ception

for the Hutterites wou!d undermine its attempts

to pre$ent such fraud.

<he !berta Court of ppea! found for the

Hutterites.


<he o$ernment of !berta conceded that this

was a $io!ation of the Hutterites% re!iious

freedom 5protected under Section 2 of the

Canadian Charter of Rihts and reedoms6 but

arued that this $io!ation was a!!owab!e under

Section 1%s reasonab!e !imits on Charter rihts.

<he Hutterites maintained that this was an

unreasonab!e !imit.

Chief Dustice c@ach!in, writin for the maorit",

found the !aw constitutiona!. She found that the

o$ernment%s need to fiht fraud was pressin,

and that dri$in was not a riht, so the

o$ernment was entit!ed to attach !eitimate

conditions to it.

<hree ustices dissented and wou!d ha$e not

reAuired the Hutterites to be photoraphed to be!icensed. =n three separate opinions, Dustices

be!!a, @e#e!, and ish found that this po!ic"

was not minima!!" impairin, since it wou!d not

sinificant!" enab!e identit" theft to a!!ow the

e0ceptions, and it wou!d ha$e a !are

detrimenta! effect on the Hutterites% wa" of !ife,

since the" wou!d ha$e to emp!o" outsiders to

perform a!! their necessar" dri$in.

Cit" of ontrea! $. 29-2*1' Quebec =nc.,

[2;;-] ' S.C.R. 1(1, 2;;- SCC 2 is a !eadin

Supreme Court of Canada decision on freedom

of e0pression under section 25b6 of the

Canadian Charter of Rihts and reedoms. <he

Court he!d that a strip c!ub has no constitutiona!

riht to broadcast music into the streets in order

to attract customers. <he decision stated that

!ocation of the e0pression was a factor in

considerin if there was a $io!ation.

Contents [hide]

1 #ac&round

2 )pinion of the Court

' See a!so

( /0terna! !in&s

#ac&round[edit]

=n 199, the owner of a ontrea! strip c!ub on

Ste-Catherine Street was chared for $io!atin a

ontrea! b"*!aw which prohibited noise

produced b" sound eAuipment. <he owner

cha!!ened the chare on the rounds that the

municipa! !aw was a $io!ation of his freedom of

e0pression under section 25b6 of the Charter.

#oth the Quebec Superior Court and the

Quebec Court of ppea! areed that the !aw

$io!ated the freedom of e0pression and cou!d not

be sa$ed under section 1 of the Charter.

<he fo!!owin issues where put to the Supreme

CourtF



Goes the municipa!it" ha$e the power to enact

the !aw

Goes the b"*!aw =nfrine Section 25b6 of the

Canadian Charter

=n a si0 to one decision the Court found that theb"*!aw was $a!id, that it $io!ated the freedom of

e0pression, but was sa$ed under section 1.


Chief Dustice c@ach!in and Dustice Geschamps

wrote the decision for the maorit". =n their

decision the" e0amined the scope of the

freedom of e0pression and added that the

!ocation of the e0pression was re!e$ant to a

findin of a $io!ation. =n the current situation,

there was a $io!ation.

<he $io!ation was found to be ustified under

section 1. <he" he!d that the purpose of

contro!!in noise po!!ution was a sufficient!"

important purpose and the means a$ai!ab!e

were reasonab!e.

Char&aoui $. Canada 5inister of CitiJenship

and =mmiration6, 2;;7 SCC 9 is a !andmar&

decision of the Supreme Court of Canada on the

constitutiona!it" of procedures for determinin

the reasonab!eness of a securit" certificate and

for re$iewin detention under a certificate. <he

Court he!d that the securit" certificate process,

which prohibited the named indi$idua! frome0aminin e$idence used to issue the certificate,

$io!ated the riht to !ibert" and habeas corpus

under section 7, 9 and 1; of the Canadian

Charter. <he Court howe$er reected the

appe!!ant aruments that the e0tension of

detentions $io!ated the riht aainst indefinite

detention, that the differentia! treatment $io!ated

eAua!it" rihts, and that the detention $io!ated

the ru!e of !aw. s remed", the Court dec!ared

the udicia! confirmation of certificates and

re$iew of detention to be of no force and effect,

stri&in down artic!es '' and 77 to 8- of the

=mmiration and Refuee 3rotection ct, but

suspended the ru!in for one "ear.

Contents [hide]

1 #ac&round

1.1 Char&aoui

1.2 !mrei

1.' Har&at

2 Gecision of the Court

' /$ents SubseAuent to the Gecision

( See a!so

- otes

/0terna! !in&s

.1 Court documents

.2 Commentar"

#ac&round[edit]

Char&aoui[edit]

=n 2;;', di! Char&aoui, a permanent resident in

Canada since 199-, was arrested and

imprisoned under a securit" certificate issued b"

the So!icitor Eenera! of Canada 5then +a"ne

/aster6 and the inister of =mmiration 5then

Genis Coderre6. <he e$idence upon which the

certificate was issued is secret, disc!osed neither to Char&aoui nor his !aw"ers. 3ub!ic summaries

of the e$idence issued b" the edera! Court

a!!eed a connection with the bin @aden

networ&. Char&aoui appea!ed his detention

three times before bein re!eased on the fourth

tr" in ebruar" 2;;-, ha$in spent a!most two

"ears in Ri$i^re*des*3rairies prison in ontrea!.

He was re!eased under se$ere!" restricti$e bai!



conditions. Char&aoui has ne$er been chared

or tried. <he certificate aainst Char&aoui has

ne$er underone an" udicia! re$iewI the edera!

Court suspended its re$iew process in arch

2;;-, pendin a new decision from the inister

of =mmiration on Char&aoui%s deportabi!it" 5a

decision which e$a!uates, inter a!ia, ris& to r.

Char&aoui6.

!mrei[edit]

Hassan !mrei is a forein nationa! who was

ranted refuee status in Canada in Dune 2;;;.

=t was !ater reported that !mrei was potentia!!"

in$o!$ed with a terrorist networ& that supported

)sama bin @aden and was further in$o!$ed in

forin tra$e! documentation. !mrei wasarrested on )ctober 19 of 2;;1 on a securit"

certificate and has been in custod" to this da".

<he certificate has since been uphe!d as $a!id b"

the edera! Court.

=n Gecember 2;;1 the o$ernment attempted to

ha$e !mrei dec!ared a daner to Canadian

securit" thereb" be deported to S"ria. =n

Gecember 2;;' the dec!aration was i$en.

!mrei souht udicia! re$iew of the decision todeport him and a sta" was ranted in o$ember

2;;'.

Har&at[edit]

<he inister of CitiJenship and =mmiration

issued a securit" certificate under section '( of

the =mmiration and Refuee 3rotection ct

5=R36 for ohamed Har&at, an !erian !i$in in

Canada, on the basis that the" reasonab!"be!ie$ed he was supportin terrorist acti$it". <he

certificate was re$iewed b" a edera! Court

ude under section 77 of =R3. <he edera!

ude found that the certificate was reasonab!e.

[1] Har&at cha!!ened constitutiona!it" of the

pro$isions of =R3 under which the securit"

certificate was re$iewed.

@ea$e to appea! to the Supreme Court was

ranted on )ctober 2;, 2;;-.[2]

Gecision of the Court[edit]

Chief Dustice c@ach!in, writin for a unanimous

court, ho!ds that sections '' and 77 to 8- of the

=R3 unreasonab!" $io!ates sections 7, 9 and 1;

of the Canadian Charter of Rihts and

reedoms.

)n the section 1 ana!"sis for ustification of the

$io!ation the Court he!d that the certificate

process was not minima!!" impairin. <he Court

cited a c!earance s"stem used e!sewhere in the

wor!d that wou!d desinate certain !aw"ers to

$iew the e$idence on beha!f of the accused.

<he court a!so found that s. 8(526 of the =R3

was unconstitutiona! because it denied a prompt

hearin to forein nationa!s b" imposin a 12;*

da" embaro on an" app!ication for re!ease. <he

court corrected this defect b" remo$in this

mandator" waitin*period.[']

/$ents SubseAuent to the Gecision[edit]

)n Du!" '1, 2;;9 the Crown admitted there was

insufficient e$idence to upho!d the securit"

certificate aainst r. Char&aoui. <his fo!!owed

the Crown withdrawin much of its e$idence in

the face of Court orders for reater

transparenc". =n response Dustice <remb!a"*

@amer presidin o$er the case issued a directi$eon uust -, 2;;9 sa"in she wi!! consider

whether she shou!d Auash the certificate or

order the inisters to re$o&e it themse!$es on

her return from ho!ida"s, in ear!" September.[(]



)n September 2(, 2;;9 Dustice <remb!a"*

@amer announced she wou!d !ift a!! restrictions

on r. Char&aoui b" the end of the da".[-]

Quebec 5ttorne" Eenera!6 $. Canadian )wners

and 3i!ots ssociation, 2;1; SCC '9, [2;1;] 2

SCR -', a!so referred to as Quebec $. C)3,

is a !eadin case of the Supreme Court ofCanada on determinin the app!icabi!it" of the

doctrines of interurisdictiona! immunit" and

federa! paramountc" in Canadian constitutiona!

!aw.

Contents [hide]

1 <he facts

2 <he courts be!ow

' Gecision of the Supreme Court of Canada

'.1 Gissent

( =mpact

- References

See a!so

7 /0terna! !in&s

<he facts[edit]

n aerodrome, reistered under the federa!

eronautics ct, was constructed on !and Joned

as aricu!tura! in the pro$ince of Quebec.

Section 2 of the Quebec ct respectin the

preser$ation of aricu!tura! !and and aricu!tura!

acti$ities 5LR3@M6 prohibited the use of !ots

in a desinated aricu!tura! reion for an"

purpose other than aricu!ture, subect to prior

authoriJation b" the Commission de protection

du territoire arico!e du Qu4bec.

Since the CommissionNs permission was not

obtained prior to constructin the aerodrome,

the Commission ordered the return of the !and to

its oriina! state pursuant to the R3@. <he

CommissionNs decision was cha!!ened on the

round that aeronautics is within federa!

urisdiction.


<he dministrati$e <ribuna! of Quebec, the

Court of Quebec and the Superior Court of

Quebec a!! uphe!d the Commission%s decision,

but the Quebec Court of ppea! found that

interurisdictiona! immunit" prec!uded the

Commission from orderin the dismant!in of the

aerodrome.

Gecision of the Supreme Court of Canada[edit]

<he appea! was dismissed. =nterurisdictiona!immunit" was he!d to app!" in the matter, under

a two*part test that was stated b" c@ach!in CDF

ndrews $. @aw Societ" of #ritish Co!umbia,

[1989] 1 SCR 1(' is the first Supreme Court of

Canada case to dea! with section 1- 5eAua!it"rihts6 of the Canadian Charter of Rihts and

reedoms. =n the case the court out!ined a test,

sometimes ca!!ed the ndrews test to determine

if there has been a prima facie $io!ation of

eAua!it" rihts.



Contents [hide]

1 Histor"

2 Dudment

2.1 =mportant iures

2.2 Reasonin

' References

( /0terna! !in&s

Histor"[edit]

ndrews, a #ritish subect and a permanent

resident in Canada, met a!! the reAuirements for

admission to the pro$incia! bar with the

e0ception that he was not a Canadian citiJen. ndrews brouht a motion to stri&e down the

reAuirement for citiJenship on the rounds it

$io!ated s. 1- of the Charter.

t the <ria! !e$e!, Supreme Court of #ritish

Co!umbia he!d in fa$our of the @aw Societ". )n

appea! to the #ritish Co!umbia Court of ppea!

the ru!in was o$erturned.

Dudment[edit]

<he issue put to the court was whether the

reAuirement of Canadian citiJenship for

admission to the #ritish Co!umbia bar is an

infrinement upon or denia! of the eAua!it" rihts

uaranteed b" s. 1-516 of the Charter. nd if so,

whether it is ustified under s. 1.

<he court he!d that section (2 of #arristers andSo!icitors ct $io!ated s. 1- and it cou!d not be

sa$ed under s. 1. <he maorit" was written b"

+i!son D. with Gic&son C.D. and @%Heureu0*Gub4

D. concurrin.

=n dissent c=nt"re D. and @amer D. disareed

on the point of the s. 1 ana!"sis, be!ie$in that it

wou!d be uphe!d on the basis of reasonab!e

!imit. <he opinion on the test, howe$er, was

unanimous.

=mportant iures[edit]

@ist of important fiures in the appea!F[1]

=rwin athanson, Q.C., and Rh"s Ga$ies, for the

appe!!ant @aw Societ" of #ritish Co!umbia.

Doseph r$a", for the appe!!ant ttorne" Eenera!of #ritish Co!umbia.

/!iJabeth C. Eo!dber and Ga$id Gin&!ecoc&, for

the inter$ener the ttorne" Eenera! for )ntario.

Dean*Y$es #ernard and Du!ie Hudon, for the

inter$ener the ttorne" Eenera! of Quebec.

!ison Scott, for the inter$ener the ttorne"

Eenera! of o$a Scotia.

Robert E. Richards, for the inter$ener the

ttorne" Eenera! for Sas&atchewan.

Richard . <a"!or, for the inter$ener the ttorne"

Eenera! for !berta.

3. #. C. 3epper, Q.C., for the inter$ener the

ederation of @aw Societies of Canada.



G. E. Cowper and +. S. artin, for the

respondents.

ar" /berts and Ewen #rods&", for the

inter$ener the +omen%s @ea! /ducation and ction und.

D. Ga$id #a&er, for the inter$ener the Coa!ition of

3ro$incia! )raniJations of the Handicapped.

Ste$en #arrett, for the inter$eners the Canadian

ssociation of >ni$ersit" <eachers and the

)ntario Confederation of >ni$ersit" acu!t"

ssociations.

Reasonin[edit]

<he court first defined a enera! approach to the

eAua!it" uarantee. <he court stated that the

section is not a enera! uarantee of eAua!it",

rather it is on!" concerned with eAua! app!ication

of the !aw. =t was further stated that it shou!d be

reconiJed that not a!! differences in treatment

wi!! resu!t in ineAua!it" and that identica!treatment ma" resu!t in ineAua!it".

s such, the suestion to app!" the same !ea!

ru!es to roups or indi$idua!s who are simi!ar!"

situated 5simi!ar!" situated test where !i&es are

treated a!i&e and dis!i&es different!"6 was firm!"

reected. <he case of #!iss $. Canada, a pre*

Charter SCC case where a prenant woman

was denied emp!o"ment benefits, was

considered as an e0amp!e of the prob!ems withsuch an approach.

=nstead the court concentrated on the prohibition

on discrimination.

. . . discrimination ma" be described as a

distinction, whether intentiona! or not but based

on rounds re!atin to the persona!

characteristics of the indi$idua! or roup which

has the effect of imposin burdens, ob!iations,

or disad$antaes on such indi$idua! or roup not

imposed on others, or which withho!ds or !imits

access to opportunities, benefits, and

ad$antaes a$ai!ab!e to other members of

societ". Gistinctions based on persona!

characteristics attributed to an indi$idua! so!e!"

on the basis of association with a roup wi!!

rare!" escape the chare of discrimination, whi!e

those based on an indi$idua!Ns merits and

capacities wi!! rare!" be so c!assified. 5p. 28;6

<he court states the discrimination must be

based on an enumerated or ana!oous

rounds, and the indi$idua! see&in to stri&e

down a !aw must demonstrate the e0istence of

differentia! treatment based on either of the two

rounds. rom there the onus shifts to the

Crown who must show the !aw ustified under s.

1.

R. $. ?app is a 2;;8 Supreme Court of Canada

case dea!in with an appea! from a #ritish

Co!umbia Court of ppea! decision that he!d that

a communa! fishin !icense ranted e0c!usi$e!"

to boriina!s did not $io!ate section 1- of the

Canadian Charter of Rihts and reedoms. <he

Supreme Court dismissed the appea! on the

basis that the distinction based on an

enumerated or ana!oous round in a

o$ernment proram wi!! not constitute

discrimination under s. 1- if, under s. 1-526F 516

the proram has an ame!iorati$e or remedia!

purposeI and 526 the proram tarets a

disad$antaed roup identified b" the

enumerated or ana!oous rounds. =n other

words the court found that the prima facie

discrimination was a!!owed because it was

aimed at impro$in the situation of a



disad$antaed roup as a!!owed b" s. 1-526 of

the Charter.

<his decision reconiJes difficu!t" found with

@aw $. Canada 5inister of /mp!o"ment and=mmiration6 in tr"in to emp!o" Lhuman dinit"M

as a !ea! test. o doubt that human dinit" is

an essentia! $a!ue under!"in s.1-, but it is an

abstract and subecti$e notion that, e$en with

the uidance of the ( factors out!ined in @aw, are

confusin to app!" and ha$e pro$en to be an

additiona! burden on eAua!it" c!aimants. <his

case interprets @aw so that it does not impose a

new and distincti$e test for discrimination, but

rather affirms the approach to substanti$e

eAua!it" set out in ndrews $. @aw Societ" of

#ritish Co!umbia and de$e!oped in the fo!!owindecisions.

<he centra! purpose of combattin discrimination

under!ies both ss.1-516 and 1-526. Section 1-516

focuses on pre$entin o$ernments from

ma&in distinctions based on the enumerated or

ana!oous rounds that ha$e the effect of

perpetuatin roup disad$antae and preudice,

or impose disad$antae on the basis of

stereot"pin. Section 1-526 focuses on enab!ino$ernments to proacti$e!" combat e0istin

discrimination throuh affirmati$e measures.

ection 1- of the Canadian Charter of Rihts and

reedoms contains uaranteed eAua!it" rihts.

s part of the Constitution, the section prohibits

certain forms of discrimination perpetrated b"

the o$ernments of Canada with the e0ceptionof ame!iorati$e prorams 5affirmati$e action6 and

rihts or pri$i!ees uaranteed b" or under the

Constitution of Canada in respect of

denominationa!, separate or dissentient schoo!s

5re!iious education6.

Rihts under section 1- inc!ude racia! eAua!it",

se0ua! eAua!it", menta! disabi!it", and ph"sica!

disabi!it". =n its urisprudence, it has a!so been a

source of a" rihts in Canada. <hese rihts areuaranteed to /$er" indi$idua!, that is, e$er"

natura! person. <his wordin e0c!udes !ea!

persons such as corporations, contrastin other

sections that use the word e$er"one, where

!ea! persons were meant to be inc!uded.

Section 1- has been in force since 198-.

Contents [hide]

1 <e0t

2 #ac&round

' eanin and purpose of eAua!it"

( pp!ication of section fifteen

(.1 Current interpretation

(.1.1 /numerated or ana!oous rounds

(.2 3ast interpretations* the @aw test

(.2.1 Gifferentia! treatment

(.2.2 Giscrimination

- /nforcement

otes

7 /0terna! !in&s



<e0t[edit]

>nder the headin of /Aua!it" Rihts this

section statesF

L 1-. 516 /$er" indi$idua! is eAua! before

and under the !aw and has the riht to the eAua!

protection and eAua! benefit of the !aw without

discrimination and, in particu!ar, without

discrimination based on race, nationa! or ethnic

oriin, co!our, re!iion, se0, ae or menta! or

ph"sica! disabi!it".

526 Subsection 516 does not prec!ude an" !aw,

proram or acti$it" that has as its obect the

ame!ioration of conditions of disad$antaed

indi$idua!s or roups inc!udin those that aredisad$antaed because of race, nationa! or

ethnic oriin, co!our, re!iion, se0, ae or menta!

or ph"sica! disabi!it".

M

#ac&round[edit]

<he Canadian #i!! of Rihts of 19; had

uaranteed the riht of the indi$idua! to eAua!it"

before the !aw and the protection of the !aw./Aua! protection of the !aw is a riht that has

been uaranteed b" the /Aua! 3rotection C!ause

in the ourteenth mendment to the >nited

States Constitution since 188.[1] Section 1-

itse!f dates bac& to the ear!iest draft of the

Charter, pub!ished in )ctober 198;, but it was

worded different!". =t read,

L 516 /$er"one has the riht to eAua!it"

before the !aw and to eAua! protection of the !awwithout discrimination because of race, nationa!

or ethnic oriin, co!our, re!iion, ae or se0.

526 <his section does not prec!ude an" !aw,

proram or acti$it" that has as its obect the

ame!ioration of conditions of disad$antaed

persons or roups.[2]

M

Gurin the draftin, the uarantee to e$er"one

was dropped in fa$our of e$er" indi$idua!, with

the intent that corporations cou!d not in$o&eeAua!it" rihts.['] =n addition, whi!e the oriina!

$ersion spo&e of eAua!it" before the !aw and

eAua! protection of the !aw, the section u!timate!"

enacted inc!uded uarantees of eAua!it" under

the !aw and eAua! benefit of the !aw. <he reason

for these additions was to encourae a

enerous readin of section 1-. =n the #i!! of

Rihts cases ttorne" Eenera! of Canada $.

@a$e!! 5197(6 and #!iss $. Canada 519796,

Supreme Court Dustice Ro!and Ritchie had said

on!" the app!ication, and not the outcome, of the

!aw must be eAua!, thereb" necessitatin ane0p!icit uarantee of eAua!it" under the !awI and

that !ea! benefits need not be eAua!, thereb"

necessitatin an e0p!icit uarantee of eAua!

benefit of the !aw.[(]

<houh the Charter itse!f came into effect on

pri! 17, 1982, section 1- was not brouht into

force unti! pri! 17, 198-, in accordance with

section '2526 of the Charter. <he reason for this

was so that pro$incia! and federa! o$ernmentswou!d ha$e enouh time to re$iew their

!eis!ation and ma&e the appropriate chanes to

an" discriminator" !aws.

eanin and purpose of eAua!it"[edit]

ccordin to the Supreme Court of Canada%s

Section 1- urisprudence, the eAua!it"

uarantees of section 1- are aimed at

pre$entin the $io!ation of essentia! humandinit" and freedom throuh the imposition of

disad$antae, stereot"pin, or po!itica! and

socia! preudices, and to promote a societ" in

which a!! persons eno" eAua! reconition at !aw

as human beins or as members of Canadian

societ", eAua!!" capab!e and eAua!!" deser$in



of concern, respect and consideration.

5=acobucci D. in @aw $. Canada, [1999]6

<o that end, the Charter reconiJes four

dimensions of eAua!it", inc!udin substanti$eeAua!it".

/Aua!it" before the !aw is eAua!it" in the

administration of ustice, where a!! indi$idua!s

are subect to the same crimina! !aws in the

same manner b" !aw enforcement and the

courts.

/Aua!it" under the !aw is eAua!it" in the

substance of the !aw, where the content of the

!aw is eAua! and fair to e$er"one so that

e$er"one e0periences the same resu!t.

/Aua! benefit of the !aw ensures that benefits

imposed b" !aw wi!! be proportionate.

/Aua! protection of the !aw ensure that the

protections imposed b" !aw wi!! be proportionate

so that the human dinit" of e$er" person is

eAua!!" safeuarded b" the !aw.

>n!i&e forma! eAua!it", which o$er!oo&s persona!

differences, substanti$e eAua!it" is concernedwith the impact of the !aw on different roups of

indi$idua!s. Substanti$e eAua!it" reAuires that

there be an eAua! impact on the person affected

b" the !aw.

pp!ication of section fifteen[edit]

=n an" cha!!ene of section 1-516 the burden of

proof is a!wa"s on the c!aimant. <he Supreme

Court of Canada has endorsed a purposi$einterpretation of Section 1-.

Current interpretation[edit]

fter @aw $. Canada 519996 the Auestion of

whether dinit" was affected was &e" to a

section 1- ana!"sis. =n R. $. ?app 52;;86, the

prob!ems with the dinit" ana!"sis were

reconiJed and the dinit" ana!"sis was

ettisoned. <he Court mandated that the test is,

as it was before, the one found in ndrews $.

@aw Societ" of #ritish Co!umbia 519896F 516 =s

there differentia! treatment on an ana!oous or

enumerated round 526 Goes this round cause

preudice or stereot"pin

/numerated or ana!oous rounds[edit]

Giscrimination based upon se0ua! orientation is

an ana!oous round for discrimination, !eadin

a!! but two pro$incia! courts to !ea!iJe same*se0marriae in Canada.

<he concept of enumerated or ana!oous

rounds oriinated in the essentia! 1989

ndrews case to refer to persona!

characteristics that, when bein the basis of

discrimination, show the discrimination is

unconstitutiona! under section 1-. <here are

nine enumerated rounds e0p!icit!" mentioned in

section 1-, a!thouh the" are not actua!!"

numbered. =n practice, the enumerated rounds

ha$e been i$en !ibera! and broadinterpretations. or e0amp!e, discrimination on

the basis of prenanc" has been ru!ed to be se0

discrimination 5#roo&s $. Canada Safewa" @td.6.

s section 1-%s words in particu!ar hint that the

e0p!icit!" named rounds do not e0haust the

scope of section 1-, additiona! rounds can be

considered if it can be shown that the roup or

indi$idua!%s eAua!it" rihts were denied in

comparison with another roup that shares a!! of the same characteristics e0cept for the persona!

characteristic at issue. persona! characteristic

is considered ana!oous to the ones

enumerated in section 1- if it is immutab!e or

cannot be chaned or can on!" be chaned at

e0cessi$e cost 5constructi$e!" immutab!e6. <hus



far, se$era! ana!oous rounds ha$e been

identifiedF

se0ua! orientation 5/an $. Canada [199-],

Uriend $. !berta [1998], . $. H. [1999] @itt!eSisters #oo& and rt /mporium $. Canada

[2;;;]6 <his findin has !ed pro$incia! courts 5the

Supreme Court dec!ined in Reference re Same*

Se0 arriae to ru!e on the issue as the

o$ernment had $oiced its intent to !ea!iJe

them an"wa"6 to find that !aws aainst same*se0

marriae in Canada wou!d be unconstitutiona!.

=n Ha!pern $. Canada 5ttorne" Eenera!6 52;;'6,

the Court of ppea! for )ntario used section 1-

to !ea!iJe same*se0 marriae in )ntario.

marita! status 5iron $. <rude!, [199-], o$aScotia $. +a!sh [2;;2]6,

off*reser$e aboriina! statusTboriina!it"*

residence 5Corbiere $. Canada6.

citiJenship 5ndrews $. @aw Societ" of #ritish

Co!umbia, [1989], @a$oie $. Canada [2;;;]6

s we!!, the courts ha$e reected se$era!

ana!oous rounds inc!udinF

ha$in a taste for mariuana. 5R. $. a!mo*

@e$ine6

emp!o"ment status 5Reference Re +or&ers%

Compensation ct [1989], Ge!is!e $. Canada

[1999]6

!itiants aainst the Crown 5Rudo!ph +o!ff $.

Canada [199;]6

pro$ince of prosecutionTresidence 5R. $. <urpin

[1989], R. $. S. 5S.6 [199;]6

membership in mi!itar" 5R. $. Eenereu06

new resident of pro$ince 5Hai $. Canada6

persons committin crimes outside Canada 5R.

$. inta6

bein and e0treme po$ert" 5R. $. #an&s6

3ast interpretations* the @aw test[edit]

s first out!ined in @aw $. Canada, discrimination

can be identified throuh a three*step test.

Gid the !aw, proram, or acti$it" impose

differentia! treatment between the c!aimant and a

comparator roup <hat is, was a distinction

created between the roups in purpose or

effect

=f so, was the differentia! treatment based on

enumerated or ana!oous rounds

=f so, did the !aw in Auestion ha$e a purpose or

effect that is discriminator" within the meanin of

the eAua!it" uarantee

Gifferentia! treatment[edit]

<his step as&s whether there is a forma!

distinction between the c!aimant and a

comparator roup based on one or more

persona! characteristics or e!se does it fai! to

ta&e into account the c!aimant%s current

disad$antaed position

<he se!ection of the comparator roup is

intera!. <he" must possess a!! the Aua!ities of

the c!aimant e0cept for the persona!

characteristic at issue. 5Corbiere $. Canada

[1999] 2 S.C.R. 2;'6 =n Hode $. Canada

5inister of Human Resources Ge$e!opment6

52;;(6, it was noted that a court ma" reect a

c!aimant%s choice for a comparator roup, and

that choosin the wron comparator roup ma"

cause the rihts c!aim to fai!.

=n +ith!er $. Canada 5ttorne" Eenera!6 52;116,

the Supreme Court has ettisoned the

comparator roup reAuirement, mandatin that

instead a conte0tua! ana!"sis is the wa" to o.

<he" reconiJed that comparator roup ana!"sis



was !eadin to much inustice, somethin a!so

noted in R. $. ?app.

Giscrimination[edit]

or discrimination to be found it must be

determined if the burden or denia! of benefit

harms an indi$idua!%s human dinit" 5@aw $.

Canada6. <hat is, the discrimination wi!!

marina!iJe, inore, or de$a!ue an indi$idua!%s

sense of se!f*respect and se!f*worth.

@aw suests four conte0tua! factors which

can he!p uide a conte0tua! ana!"sis of whether

the imputed distinction $io!ates the human

dinit" of the c!aimant. one of these are

determinati$e of discrimination, and the Court

must not consider a!! of them in e$er" case. <his

!ist is a!so not e0hausti$e, a!thouh the standard

@aw ana!"sis has "et to de$e!op an" additiona!

factorsF

pre*e0istin disad$antae

corre!ation between the rounds of the c!aim

and the actua! needs, capacities, andcircumstances

ame!iorati$e purpose or effect of the !aw on

more disad$antaed roups

nature and scope of interest

Durisprudence has shown that each of these

factors are weihed different!" dependin on the

conte0t.

3re*e0istin disad$antae as&s whether there

was a pre*e0istin disad$antae or $u!nerabi!it"

e0perienced b" the c!aimant. =n Corbiere $.

Canada c@ach!in described this factor to be

the most compe!!in and suesti$e of

discrimination if pro$en. Howe$er, the absence

of a pre*e0istin disad$antae does not

necessari!" prec!ude a c!aimant from succeedin

as seen in <rociu& $. #ritish Co!umbia.

+ith corre!ation between rounds and rea!it",

the c!aimant must show that there is a !in&between the rounds raise and the c!aimant%s

actua! needs, circumstances, and capacities.

Giscrimination wi!! be more difficu!t to estab!ish if

the !aw ta&es the Aua!ities of the c!aimant into

account. =n Eosse!in $. Quebec 5ttorne"

Eenera!6 [2;;2] the court was sharp!" di$ided on

this point. <he maorit" said that the !aw that

pro$ided !ess socia! assistance to "outh was

connected to the abi!it" of "outh to find

emp!o"ment easi!". Howe$er, the dissenters

insisted that the e$idence did not show this to be

actua! Aua!ities, but were rather stereot"pes.

<he ame!iorati$e purpose factor as&s whether

there is a distinction made for the purpose of

aidin an e$en !ess ad$antaed roup. =f this

can be shown then it is un!i&e!" that the c!aimant

wou!d be ab!e to show a $io!ation of their dinit".

Howe$er, @o$e!ace $. )ntario warned that the

ana!"sis shou!d not be reduced to a ba!ancin of

re!ati$e disad$antaes.

<he fina! factor of nature and scope considers

the nature and scope of the interest affected b"

the !aw. <he more se$ere and !oca!iJed the

resu!ts of the !aw for those affected the more

!i&e!" to show that the distinctions in treatment

responsib!e are discriminator".

/nforcement[edit]

Section 1-, !i&e the rest of the Charter, is main!"

enforced b" the courts throuh !itiation under

sections 2( and -2 of the Constitution ct, 1982.

Such !itiation can be $er" cost!".



<o o$ercome this barrier, the federa! o$ernment

e0panded the Court Cha!!enes 3roram of

Canada[-] in 198- to fund test cases

cha!!enin federa! !eis!ation in re!ation to the

eAua!it" rihts uaranteed b" the Charter. Some

fundin has been pro$ided to cha!!ene

pro$incia! !aws under a $ariet" of prorams in

the past, but its a$ai!abi!it" has $aried

considerab!" from pro$ince to pro$ince.[]

=n September 2;;, the edera! o$ernment

announced that it wou!d be trimmin the fat and

refocusin spendin on the priorities of

Canadians. <his inc!uded cuttin a!! fundin to

the Court Cha!!enes 3roram.[7]

Uriend $. !berta [1998] 1 S.C.R. (9' is an

important Supreme Court of Canada case thatdetermined that a !eis!ati$e omission can be

the subect of a Charter $io!ation. <he case

in$o!$ed a dismissa! of a teacher because of his

se0ua! orientation and was an issue of reat

contro$ers" durin that period.

Contents [hide]

1 Histor"

2 Ru!in

2.1 Section 1-

2.2 Section 1

2.' Gissentin $iew

' Response

( See a!so

- References

/0terna! !in&s

Histor"[edit]

Ge!win Uriend was dismissed from his position

as a !ab coordinator at ?in%s Co!!ee, a pri$ate

re!iious co!!ee in /dmonton, !berta, because

of his se0ua! orientation. He was pre$ented from

ma&in a comp!aint under the !berta =ndi$idua!

Rihts 3rotection ct because the !eis!ation did

not inc!ude se0ua! orientation as a prohibited

round of discrimination. Uriend souht a

dec!aration from the !berta Court of Queen%s

#ench that the omission breached section 1- of

the Charter.

Dustice Russe!! of the Court of Queen%s #ench

found in fa$our of Uriend as the co!!ee $io!ated

s. 1- of the Charter and cou!d not be sa$ed

under section 1. <he !berta Court of ppea!, in

a decision written b" Dustice cC!un,

o$erturned the tria! decision.

Ru!in[edit]

<here were two issues put before the Supreme

CourtF

<he court decided "es to the first Auestion and

no to the second. <he" found that there is no

!ea! basis for drawin a distinction of the

Charter scrutiniJin a positi$e act and an

omission.

Section 1-[edit]

<he court !oo&ed at the !anuae of section '2

and found that it does not !imit to on!" positi$e

acts. =t is not on!" to protect aainst

encroachment on rihts or the e0cessi$e



e0ercise of authorit", as cC!un suested,

rather it is a too! for citiJens to cha!!ene the !aw

in a!! its forms. <he !eis!ature%s si!ence on an

issue does not constitute neutra!it" with first

assessin the app!ication of section 1-.

eutra!it" cannot be assumed. <o do so wou!d

remo$e the omission from the scope of udicia!

scrutin" under the Charter. <he appe!!ants ha$e

cha!!ened the !aw on the round that it $io!ates

the Constitution of Canada, and the courts must

hear and consider the cha!!ene.

<he court then !oo&ed at the app!ication of the

Charter to pri$ate acti$ities.

!thouh the [ct] tarets pri$ate acti$ities and

as a resu!t has an %effect% on those acti$ities it

does not fo!!ow that this indirect effect shou!d

remo$e the [ct] from the pur$iew of the Charter.

=t wou!d !ead to an unacceptab!e resu!t if an"

!eis!ation that reu!ated pri$ate acti$it" wou!d

for that reason a!one be immune from Charter

scrutin".

<he respondents% submission has fai!ed to

distinuish between pri$ate acti$it" and !awsthat reu!ate pri$ate acti$it". <he former is not

subect to the Charter, whi!e the !atter ob$ious!"

is.

Section 1[edit]

<he court fo!!owed this with a section 1 ana!"sis

to which the" decided was not app!icab!e. =n

conc!udin, the court ru!ed that to remed" the

situation se0ua! orientation must be read into

the impuned pro$ision of the ct.

irst!", the respondents fai!ed to show a

pressin and substantia! obecti$e. <he Court

dismissed the respondents% submission, that the

predicament wou!d be rare, as on!" an

e0p!anation and not an obecti$e, as it !ac&ed

an" description of oa! or purpose.

Second!", the respondents fai!ed to show a

rationa! connection. <he Court was especia!!"

harsh on this point, statinF

ar from bein rationa!!" connected to the

obecti$e of the impuned pro$isions, the

e0c!usion of se0ua! orientation from the ct is

antithetica! to that oa!. =ndeed, it wou!d be

nonsensica! to sa" that the oa! of protectin

persons from discrimination is rationa!!"

connected to, or ad$anced b", den"in such

protection to a roup which this Court has

reconiJed as historica!!" disad$antaed. 5para.

1196

<he respondents attempted to ustif" the rationa!

connection as part of an incrementa!ist approach

simi!ar to one used b" Eaan /an $. Canada,

which the Court reected as inappropriate and a

poor basis for ustif"in a Charter $io!ation.

<hird!", the respondents fai!ed to show that there

was minima! impairment. <houh the

!eis!ature must ba!ance between the competin

rihts of re!iious freedoms and protections ofa"s and !esbians, the !eis!ature made no

compromise between rihts at a!!.

Gissentin $iew[edit]

<he so!e dissentin opinion was written b"

Dustice Dohn C. aor. He arued that readin

in a se0ua! orientation pro$ision in the =ndi$idua!

Rihts 3rotection ct was not necessari!" more

desirab!e than simp!" dismissin the entire

=R3 as unconstitutiona!, since the !berta

!eis!ature had repeated!" indicated the"

specifica!!" did not wish to inc!ude such rihts in

the document. aor wrote that the =R3 shou!d

in fact be o$erturned. He then suested that

the !eis!ature ma" in turn wish to use the

otwithstandin c!ause to pass a new =R3 that



wou!d be capab!e of e0c!udin protection for

homose0ua!s.

Response[edit]

o!!owin the decision, some !berta @s

ca!!ed for the o$ernment to in$o&e Canada%s

notwithstandin c!ause to o$erru!e the decision.

[1] Howe$er, !berta 3remier Ra!ph ?!ein opted

not to do this. oreo$er, ?!ein said an" pub!ic

protest was hatefu!, which anered the riht*

win.[2] )ne ationa! 3ost writer has suested

that ?!ein%s decision represented a ap from his

words aainst bo!d udicia! decisions.[']

Reference re Securities ct is a !andmar&

opinion of the Supreme Court of Canada to a

reference Auestion posed on the e0tent of the

abi!it" of the 3ar!iament of Canada to use its

trade and commerce power.

Contents [hide]

1 #ac&round

1.1 3ro$incia! references

1.2 <he Auestion posed

2 ruments offered at the hearin

2.1 <rade as a who!e

2.2 bi!it" of the pro$inces to reu!ate oint!" or

se$era!!"

2.' DeopardiJin the successfu! operation of the

scheme

' )pinion of the Supreme Court of Canada

( Sinificance

- References

#ac&round[edit]

See a!soF Canadian securities reu!ation

Canadian securities reu!ation is uniAue in that

the fie!d is so!e!" reu!ated b" pro$incia! and

territoria! o$ernments. +hi!e those

o$ernments ha$e wor&ed to harmoniJe man"

of their po!icies, there is sti!! enouh $ariation

that securities issuers must reconci!e in order to

ha$e their securities trade amon residents in

each of the urisdictions in$o!$ed.

Since the 19';s, there has been debate about

the desirabi!it" of estab!ishin a sin!e nationa!

securities reu!ator. =n 2;1;, a draft Canadian

Securities ct was pub!ished,[1] and a reference

Auestion was posed to the Supreme Court of

Canada on its constitutiona!it".

3ro$incia! references[edit]

<he pro$incia! o$ernments of !berta and

Quebec had pre$ious!" posed referenceAuestions to their respecti$e Courts of ppea! on

the subect. =n arch 2;11, the !berta Court of

ppea! ru!ed unanimous!" that the federa!

proposa! in its entiret" was an unconstitutiona!

intrusion into pro$incia! urisdiction.[2][']

=n the same month, the Quebec Court of ppea!

made a simi!ar ru!in in a (*1 sp!it decision, but

stated that sections 1(8*1-2 and 1-8*18 of the

proposed ct 5dea!in with orders for theproduction of information, crimina! offences,

prohibition orders and restitution orders6 were

$a!id under the crimina! !aw power, and that

there was no Auestion that the ct wou!d be

constitutiona! if it focused so!e!" on internationa!

and interpro$incia! reu!ation of securities

transactions.[(][-] <he !berta Court had



considered the crimina! !aw pro$isions to be so

incidenta! to the purpose of the ct that the"

cou!d not stand on their own, and it did not

discuss in detai! the internationa! and

interpro$incia! Auestions.

<he Auestion posed[edit]

L

=s the proposed Canadian Securities ct within

the !eis!ati$e authorit" of the 3ar!iament of

Canada[]

M

ruments offered at the hearin[edit]

t issue was the Auestion of whether the

reu!ation of the securities industr" is a $a!id

e0ercise of the federa! trade and commerce

power.[7] =n that reard, aruments focused on

the app!icabi!it" of the fi$e criteria for such an

ana!"sis that were pre$ious!" identified in


@easinF

the impuned !eis!ation must be part of a

reu!ator" schemeI


o$ersiht of a reu!ator" aenc"I


a who!e rather than with a particu!ar industr"I

the !eis!ation shou!d be of a nature that


constitutiona!!" incapab!e of enactinI and

the fai!ure to inc!ude one or more pro$inces or

!oca!ities in a !eis!ati$e scheme wou!d


scheme in other parts of the countr".

=f the trade and commerce power does not

app!", then securities reu!ation, bein in pith

and substance under the propert" and ci$i! rihts

power, fa!!s e0c!usi$e!" within pro$incia!

urisdiction, as the doub!e aspect and

paramountc" doctrines wou!d not come into p!a".

#oth sides areed that the first two Eenera!

otors criteria were met, and subseAuent

aruments re$o!$ed around the other three.

umerous submissions were presented to the

Court on this Auestion.[8]

<here was enera! areement amon obser$ers

that the resu!tin decision wi!! ha$e an impact onCanadian federa!ism be"ond the immediate

Auestion of securities reu!ation.[9]

<rade as a who!e[edit]

Canada arued that securities !aw transcends a!!

industries, and thus shou!d be a $a!id e0ercise of

the trade and commerce power, in the same wa"

as for competition !aw. )n the other side, it was

arued that the securities industr" shou!d be

$iewed in the same manner as the insurance

industr", which since CitiJen%s =nsurance Co. $.

3arsons has been he!d to fa!! under pro$incia!

urisdiction.

bi!it" of the pro$inces to reu!ate oint!" or

se$era!!"[edit]

Canada noted that, whi!e the pro$incia!

securities reu!ators efforts to operate a

passport s"stem ha$e met with some success,there are sti!! some sinificant constitutiona!

!imitations on their abi!it" to reu!ate the

securities industr" in the modern aeF

the pro$inces cannot app!" their reu!ations

e0tra*pro$incia!!"I



the securities industr" has become primari!"

internationa! in scopeI

pro$inces cannot reu!ate federa!!" incorporated

companiesI and

pro$inces !ac& the abi!it" to inc!ude crimina!sanctions with their reu!ations

!berta, amon others, arued that there were

no f!aws in the present passport s"stem that

cou!d not be fi0ed, and that the proposed ct

contained nothin that cou!d not be found in

current pro$incia! !eis!ation.

DeopardiJin the successfu! operation of the

scheme[edit]

s the proposed ct contains an opt*in c!ause

5pro$idin that it wou!d on!" app!" in pro$inces

that choose to participate6, it was arued that

this shows that unanimous pro$incia!

in$o!$ement is not necessar" and that therefore

this shou!d be considered an area that the

pro$inces are more than capab!e of reu!atin

without the in$o!$ement of the edera!

Eo$ernment. Canada responded that this

represented an e0amp!e of the current mode! of

cooperati$e federa!ism that had a!read" beenemp!o"ed in aricu!tura! products mar&etin, and

which was appro$ed b" the Court in Reference

re ricu!tura! 3roducts ar&etin ct.

)pinion of the Supreme Court of Canada[edit]

<he Court he!d that, as present!" drafted, the

proposed ct is not $a!id under the enera!

branch of the federa! power to reu!ate trade

and commerce.[1;][11] =t is main!" focused on

the da"-to-da" reu!ation of a!! aspects of

contracts for securities within the pro$inces,

inc!udin a!! aspects of pub!ic protection and

professiona! competences. <hese matters

remain essentia!!" pro$incia! concerns fa!!in

within propert" and ci$i! rihts in the pro$inces

and are not re!ated to trade as a who!e.

L

[122] ... CanadaNs prob!em is that the proposed

ct ref!ects an attempt that oes we!! be"ond

these matters of undoubted nationa! interest andconcern and reaches down into the detai!ed

reu!ation of a!! aspects of securities. =n this

respect, the proposed ct is un!i&e federa!

competition !eis!ation, which has been he!d to

fa!! under s. 91526 of the Constitution ct, 187.

=t wou!d reu!ate a!! aspects of contracts for

securities within the pro$inces, inc!udin a!!

aspects of pub!ic protection and professiona!

competence within the pro$inces. Competition

!aw, b" contrast, reu!ates on!" anti*competiti$e

contracts and conduct B a particu!ar aspect of

economic acti$it" that fa!!s sAuare!" within thefedera! domain. =n short, the proposed federa!

ct o$erreaches the !eis!ati$e interest of the

federa! o$ernment.

M

Specific aspects of the ct aimed at addressin

matters of enuine nationa! importance and

scope oin to trade as a who!e in a wa" that is

distinct from pro$incia! concerns, inc!udinmanaement of s"stemic ris& and nationa! data

co!!ection, appear to be re!ated to the enera!

trade and commerce power. +ith respect to

these aspects of the ct, the pro$inces, actin

a!one or in concert, !ac& the constitutiona!

capacit" to sustain a $iab!e nationa! scheme.

L

[1;'] S"stemic ris&s ha$e been defined as Lris&sthat occasion a _domino effectN whereb" the ris&

of defau!t b" one mar&et participant wi!! impact

the abi!it" of others to fu!fi!! their !ea!

ob!iations, settin off a chain of neati$e

economic conseAuences that per$ade an entire

financia! s"stemM 5. D. <rebi!coc&, ationa!

Securities Reu!ator Report 52;1;6, at para. 26.

#" definition, such ris&s can be e$asi$e of



pro$incia! boundaries and usua! methods of

contro!. <he proposed !eis!ation is aimed in part

at respondin to s"stemic ris&s threatenin the

Canadian mar&et $iewed as a who!e. +ithout

attemptin an e0hausti$e enumeration, the

fo!!owin pro$isions of the proposed ct wou!d

appear to address or authoriJe the adoption of

reu!ations directed at s"stemic ris&F ss. 89 and

9; re!atin to deri$ati$es, s. 12516 on short*

se!!in, s. 7' on credit ratin, s. 2285(65c6

re!atin to urent reu!ations and ss. 1;9 and

22( on data co!!ection and sharin.

M

=n sum, the proposed ct o$erreaches enuine

nationa! concerns. +hi!e the economicimportance and per$asi$e character of the

securities mar&et ma", in princip!e, support

federa! inter$ention that is Aua!itati$e!" different

from what the pro$inces can do, the" do not

ustif" a who!esa!e ta&eo$er of the reu!ation of

the securities industr" which is the u!timate

conseAuence of the proposed federa! !eis!ation.

cooperati$e approach that permits a scheme

reconiJin the essentia!!" pro$incia! nature of

securities reu!ation whi!e a!!owin 3ar!iament to

dea! with enuine!" nationa! concerns remains

a$ai!ab!e and is supported b" Canadian

constitutiona! princip!es and b" the practice

adopted b" the federa! and pro$incia!

o$ernments in other fie!ds of acti$ities.

L

[128] <o summariJe, we accept that the

economic importance and per$asi$e character of

the securities mar&et ma", in princip!e, support

federa! inter$ention that is Aua!itati$e!" differentfrom what the pro$inces can do. Howe$er, as

important as the preser$ation of capita! mar&ets

and the maintenance of CanadaNs financia!

stabi!it" are, the" do not ustif" a who!esa!e

ta&eo$er of the reu!ation of the securities

industr" which is the u!timate conseAuence of

the proposed federa! !eis!ation. <he need to

pre$ent and respond to s"stemic ris& ma"

support federa! !eis!ation pertainin to the

nationa! prob!em raised b" this phenomenon,

but it does not a!ter the basic nature of securities

reu!ation which, as shown, remains primari!"

focused on !oca! concerns of protectin

in$estors and ensurin the fairness of the

mar&ets throuh reu!ation of participants.

Uiewin the ct as a who!e, as we must, these

!oca! concerns remain the main thrust of the

!eis!ation B its pith and substance.

[129] <his is not a case of a $a!id federa!

scheme that incidenta!!" intrudes on pro$incia!

powers. =t is not the incidenta! effects of the

scheme that are constitutiona!!" suspectI it is

rather the main thrust of the !eis!ation that oesbe"ond the federa! power. <he federa!

o$ernment proper!" did not in$o&e the anci!!ar"

powers doctrine. <o app!" that doctrine, the

proposed statute considered as a who!e must be

$a!id B which it is not. +e further note that we

ha$e not been as&ed for our opinion on the

e0tent of 3ar!iamentNs !eis!ati$e authorit" o$er

securities reu!ation under other heads of

federa! power or indeed the interpro$incia! or

internationa! trade branch of s. 91526.

[1';] +hi!e the proposed ct must be found

u!tra $ires 3ar!iamentNs enera! trade and

commerce power, a cooperati$e approach that

permits a scheme that reconiJes the essentia!!"

pro$incia! nature of securities reu!ation whi!e

a!!owin 3ar!iament to dea! with enuine!"

nationa! concerns remains a$ai!ab!e.

[1'1] <he $arious proposa!s ad$anced o$er the"ears to de$e!op a new mode! for reu!atin

securities in Canada suest that this matter

possesses both centra! and !oca! aspects. <he

same insiht can be !eaned from the

e0perience of other federations, e$en if each

countr" has its own constitutiona! histor" and

imperati$es. <he common round that emeres



is that each !e$e! of o$ernment has urisdiction

o$er some aspects of the reu!ation of securities

and each can wor& in co!!aboration with the

other to carr" out its responsibi!ities.

[1'2] =t is not for the Court to suest to the

o$ernments of Canada and the pro$inces the

wa" forward b", in effect, conferrin in ad$ance

an opinion on the constitutiona!it" on this or that

a!ternati$e scheme. Yet we ma" appropriate!"

note the rowin practice of reso!$in the

comp!e0 o$ernance prob!ems that arise in

federations, not b" the bare !oic of eitherTor, but

b" see&in cooperati$e so!utions that meet the

needs of the countr" as a who!e as we!! as its

constituent parts.

[1''] Such an approach is supported b" the

Canadian constitutiona! princip!es and b" the

practice adopted b" the federa! and pro$incia!

o$ernments in other fie!ds of acti$ities. <he

bac&bone of these schemes is the respect that

each !e$e! of o$ernment has for each otherNs

own sphere of urisdiction. Cooperation is the

animatin force. <he federa!ism princip!e upon

which CanadaNs constitutiona! framewor& rests

demands nothin !ess.

M

ddressin the nature of this Auestion within the

conte0t of Canadian federa!ism, the Court notedF

L

[7] =t is a fundamenta! princip!e of federa!ism thatboth federa! and pro$incia! powers must be

respected, and one power ma" not be used in a

manner that effecti$e!" e$iscerates another.

Rather, federa!ism demands that a ba!ance be

struc&, a ba!ance that a!!ows both the federa!

3ar!iament and the pro$incia! !eis!atures to act

effecti$e!" in their respecti$e spheres. cceptin

CanadaNs interpretation of the enera! trade and

commerce power wou!d disrupt rather than

maintain that ba!ance. 3ar!iament cannot

reu!ate the who!e of the securities s"stem

simp!" because aspects of it ha$e a nationa!

dimension.

[8] +e therefore answer the reference Auestion

in the neati$e.

[9] =t is open to the federa! o$ernment and the

pro$inces to e0ercise their respecti$e powers

o$er securities harmonious!", in the spirit of

cooperati$e federa!ism. <he e0perience of other

federations in the fie!d of securities reu!ation,whi!e a function of their own constitutiona!

reAuirements, suests that a cooperati$e

approach miht usefu!!" be e0p!ored, shou!d our

!eis!ators so choose, to ensure that each !e$e!

of o$ernment proper!" dischares its

responsibi!it" to the pub!ic in a coordinated

fashion.

[1;] t this uncture, it is important to stress that

this ad$isor" opinion does not address theAuestion of what constitutes the optima! mode!

for reu!atin the securities mar&et. +hi!e the

parties presented e$idence and aruments on

the re!ati$e merits of federa! and pro$incia!

reu!ation of securities, the po!ic" Auestion of

whether a sin!e nationa! securities scheme is

preferab!e to mu!tip!e pro$incia! reimes is not

one for the courts to decide. ccordin!", our

answer to the reference Auestion is dictated

so!e!" b" the te0t of the Constitution,

fundamenta! constitutiona! princip!es and the

re!e$ant case !aw.

M

Sinificance[edit]

<he immediate impact of the decisionF



<he rea! Auestion at hand was about the nature

of Canadian federa!ism in dea!in with a matter

that does not fa!! sAuare!" within either federa! or

pro$incia! urisdiction.[12]

<he trade and commerce power, as oriina!!"

concei$ed in 3arsons and c!arified in Eenera!

otors, is sti!! ood constitutiona! !aw that does

not need to be re$isited.

<he propert" and ci$i! rihts power is adeAuate

for dea!in with the da"*to*da" aspects of

securities reu!ation, as the" do not possess a

nationa! dimension.[1']

Certain aspects of the proposed ct wou!d be

$a!id, but on!" those with a nationa! dimension,internationa! and interpro$incia! e!ements, or that

are re!ated to the crimina! !aw power.

<he edera! Eo$ernment has confirmed that it

wi!! not proceed with the proposed ct. <here is

current!" e0tensi$e discussion as to the best

manner for an" reform to proceed.[1(][1-][1]

[17]

Certain obser$ers aree that a nationa!

reu!ator" authorit" with a more focused brief is

sti!! possib!e under other heads of federa! power,

[18] as is the option of institutin a cooperati$e

framewor& with the pro$inces.[19] <here is

debate as to the !i&e!ihood of the pro$inces%

cooperation.[2;][21] =n Danuar" 2;12, inister of

inance Dim !ahert" stated that wor& is sti!!

continuin with the pro$inces to create a

nationa! reu!ator that wou!d function within the

bounds that the Court dec!ared was within

federa! urisdiction.[22]

<here is a!so concern that, $iewed on the

enera! princip!es of the opinion with respect to

the boundar" between federa! urisdiction and

the pro$incia! propert" and ci$i! rihts power, the

fo!!owin recent!" enacted federa! statutes ma"

a!so be on constitutiona!!" sha&" roundF[2']

3ersona! =nformation 3rotection and /!ectronic

Gocuments ct, and

ihtin =nternet and +ire!ess Spam ct, as we!!

as

amendments adopted in 2;12 to insert diita!

rihts manaement pro$isions into the Cop"riht

ct

Reference re Securities ct is a !andmar&

opinion of the Supreme Court of Canada to a

reference Auestion posed on the e0tent of the

abi!it" of the 3ar!iament of Canada to use its

trade and commerce power.

Contents [hide]

1 #ac&round

1.1 3ro$incia! references

1.2 <he Auestion posed

2 ruments offered at the hearin

2.1 <rade as a who!e

2.2 bi!it" of the pro$inces to reu!ate oint!" or

se$era!!"

2.' DeopardiJin the successfu! operation of the

scheme



' )pinion of the Supreme Court of Canada

( Sinificance

- References

#ac&round[edit]

See a!soF Canadian securities reu!ation

Canadian securities reu!ation is uniAue in that

the fie!d is so!e!" reu!ated b" pro$incia! and

territoria! o$ernments. +hi!e those

o$ernments ha$e wor&ed to harmoniJe man"

of their po!icies, there is sti!! enouh $ariation

that securities issuers must reconci!e in order to

ha$e their securities trade amon residents in

each of the urisdictions in$o!$ed.

Since the 19';s, there has been debate about

the desirabi!it" of estab!ishin a sin!e nationa!

securities reu!ator. =n 2;1;, a draft Canadian

Securities ct was pub!ished,[1] and a reference

Auestion was posed to the Supreme Court of

Canada on its constitutiona!it".

3ro$incia! references[edit]

<he pro$incia! o$ernments of !berta and

Quebec had pre$ious!" posed reference

Auestions to their respecti$e Courts of ppea! on

the subect. =n arch 2;11, the !berta Court of

ppea! ru!ed unanimous!" that the federa!

proposa! in its entiret" was an unconstitutiona!

intrusion into pro$incia! urisdiction.[2][']

=n the same month, the Quebec Court of ppea!

made a simi!ar ru!in in a (*1 sp!it decision, butstated that sections 1(8*1-2 and 1-8*18 of the

proposed ct 5dea!in with orders for the

production of information, crimina! offences,

prohibition orders and restitution orders6 were

$a!id under the crimina! !aw power, and that

there was no Auestion that the ct wou!d be

constitutiona! if it focused so!e!" on internationa!

and interpro$incia! reu!ation of securities

transactions.[(][-] <he !berta Court had

considered the crimina! !aw pro$isions to be so

incidenta! to the purpose of the ct that the"

cou!d not stand on their own, and it did not

discuss in detai! the internationa! and

interpro$incia! Auestions.

<he Auestion posed[edit]

L

=s the proposed Canadian Securities ct within

the !eis!ati$e authorit" of the 3ar!iament of

Canada[]

M

ruments offered at the hearin[edit]

t issue was the Auestion of whether the

reu!ation of the securities industr" is a $a!id

e0ercise of the federa! trade and commerce

power.[7] =n that reard, aruments focused on

the app!icabi!it" of the fi$e criteria for such an

ana!"sis that were pre$ious!" identified in


@easinF

the impuned !eis!ation must be part of a

reu!ator" schemeI


o$ersiht of a reu!ator" aenc"I


a who!e rather than with a particu!ar industr"I

the !eis!ation shou!d be of a nature that


constitutiona!!" incapab!e of enactinI and

the fai!ure to inc!ude one or more pro$inces or

!oca!ities in a !eis!ati$e scheme wou!d


scheme in other parts of the countr".



=f the trade and commerce power does not

app!", then securities reu!ation, bein in pith

and substance under the propert" and ci$i! rihts

power, fa!!s e0c!usi$e!" within pro$incia!

urisdiction, as the doub!e aspect and

paramountc" doctrines wou!d not come into p!a".

#oth sides areed that the first two Eenera!

otors criteria were met, and subseAuent

aruments re$o!$ed around the other three.

umerous submissions were presented to the

Court on this Auestion.[8]

<here was enera! areement amon obser$ers

that the resu!tin decision wi!! ha$e an impact onCanadian federa!ism be"ond the immediate

Auestion of securities reu!ation.[9]

<rade as a who!e[edit]

Canada arued that securities !aw transcends a!!

industries, and thus shou!d be a $a!id e0ercise of

the trade and commerce power, in the same wa"

as for competition !aw. )n the other side, it was

arued that the securities industr" shou!d be

$iewed in the same manner as the insurance

industr", which since CitiJen%s =nsurance Co. $.

3arsons has been he!d to fa!! under pro$incia!

urisdiction.

bi!it" of the pro$inces to reu!ate oint!" or

se$era!!"[edit]

Canada noted that, whi!e the pro$incia!

securities reu!ators efforts to operate a

passport s"stem ha$e met with some success,there are sti!! some sinificant constitutiona!

!imitations on their abi!it" to reu!ate the

securities industr" in the modern aeF

the pro$inces cannot app!" their reu!ations

e0tra*pro$incia!!"I

the securities industr" has become primari!"

internationa! in scopeI

pro$inces cannot reu!ate federa!!" incorporated

companiesI and

pro$inces !ac& the abi!it" to inc!ude crimina!sanctions with their reu!ations

!berta, amon others, arued that there were

no f!aws in the present passport s"stem that

cou!d not be fi0ed, and that the proposed ct

contained nothin that cou!d not be found in

current pro$incia! !eis!ation.

DeopardiJin the successfu! operation of the

scheme[edit]

s the proposed ct contains an opt*in c!ause

5pro$idin that it wou!d on!" app!" in pro$inces

that choose to participate6, it was arued that

this shows that unanimous pro$incia!

in$o!$ement is not necessar" and that therefore

this shou!d be considered an area that the

pro$inces are more than capab!e of reu!atin

without the in$o!$ement of the edera!

Eo$ernment. Canada responded that this

represented an e0amp!e of the current mode! of

cooperati$e federa!ism that had a!read" beenemp!o"ed in aricu!tura! products mar&etin, and

which was appro$ed b" the Court in Reference

re ricu!tura! 3roducts ar&etin ct.

)pinion of the Supreme Court of Canada[edit]

<he Court he!d that, as present!" drafted, the

proposed ct is not $a!id under the enera!

branch of the federa! power to reu!ate trade

and commerce.[1;][11] =t is main!" focused on

the da"-to-da" reu!ation of a!! aspects of

contracts for securities within the pro$inces,

inc!udin a!! aspects of pub!ic protection and

professiona! competences. <hese matters

remain essentia!!" pro$incia! concerns fa!!in

within propert" and ci$i! rihts in the pro$inces

and are not re!ated to trade as a who!e.



L

[122] ... CanadaNs prob!em is that the proposed

ct ref!ects an attempt that oes we!! be"ond

these matters of undoubted nationa! interest andconcern and reaches down into the detai!ed

reu!ation of a!! aspects of securities. =n this

respect, the proposed ct is un!i&e federa!

competition !eis!ation, which has been he!d to

fa!! under s. 91526 of the Constitution ct, 187.

=t wou!d reu!ate a!! aspects of contracts for

securities within the pro$inces, inc!udin a!!

aspects of pub!ic protection and professiona!

competence within the pro$inces. Competition

!aw, b" contrast, reu!ates on!" anti*competiti$e

contracts and conduct B a particu!ar aspect of

economic acti$it" that fa!!s sAuare!" within thefedera! domain. =n short, the proposed federa!

ct o$erreaches the !eis!ati$e interest of the

federa! o$ernment.

M

Specific aspects of the ct aimed at addressin

matters of enuine nationa! importance and

scope oin to trade as a who!e in a wa" that is

distinct from pro$incia! concerns, inc!udinmanaement of s"stemic ris& and nationa! data

co!!ection, appear to be re!ated to the enera!

trade and commerce power. +ith respect to

these aspects of the ct, the pro$inces, actin

a!one or in concert, !ac& the constitutiona!

capacit" to sustain a $iab!e nationa! scheme.

L

[1;'] S"stemic ris&s ha$e been defined as Lris&sthat occasion a _domino effectN whereb" the ris&

of defau!t b" one mar&et participant wi!! impact

the abi!it" of others to fu!fi!! their !ea!

ob!iations, settin off a chain of neati$e

economic conseAuences that per$ade an entire

financia! s"stemM 5. D. <rebi!coc&, ationa!

Securities Reu!ator Report 52;1;6, at para. 26.

#" definition, such ris&s can be e$asi$e of

pro$incia! boundaries and usua! methods of

contro!. <he proposed !eis!ation is aimed in part

at respondin to s"stemic ris&s threatenin the

Canadian mar&et $iewed as a who!e. +ithout

attemptin an e0hausti$e enumeration, the

fo!!owin pro$isions of the proposed ct wou!d

appear to address or authoriJe the adoption of

reu!ations directed at s"stemic ris&F ss. 89 and

9; re!atin to deri$ati$es, s. 12516 on short*

se!!in, s. 7' on credit ratin, s. 2285(65c6

re!atin to urent reu!ations and ss. 1;9 and

22( on data co!!ection and sharin.

M

=n sum, the proposed ct o$erreaches enuine

nationa! concerns. +hi!e the economicimportance and per$asi$e character of the

securities mar&et ma", in princip!e, support

federa! inter$ention that is Aua!itati$e!" different

from what the pro$inces can do, the" do not

ustif" a who!esa!e ta&eo$er of the reu!ation of

the securities industr" which is the u!timate

conseAuence of the proposed federa! !eis!ation.

cooperati$e approach that permits a scheme

reconiJin the essentia!!" pro$incia! nature of

securities reu!ation whi!e a!!owin 3ar!iament to

dea! with enuine!" nationa! concerns remains

a$ai!ab!e and is supported b" Canadian

constitutiona! princip!es and b" the practice

adopted b" the federa! and pro$incia!

o$ernments in other fie!ds of acti$ities.

L

[128] <o summariJe, we accept that the

economic importance and per$asi$e character of

the securities mar&et ma", in princip!e, support

federa! inter$ention that is Aua!itati$e!" differentfrom what the pro$inces can do. Howe$er, as

important as the preser$ation of capita! mar&ets

and the maintenance of CanadaNs financia!

stabi!it" are, the" do not ustif" a who!esa!e

ta&eo$er of the reu!ation of the securities

industr" which is the u!timate conseAuence of

the proposed federa! !eis!ation. <he need to



pre$ent and respond to s"stemic ris& ma"

support federa! !eis!ation pertainin to the

nationa! prob!em raised b" this phenomenon,

but it does not a!ter the basic nature of securities

reu!ation which, as shown, remains primari!"

focused on !oca! concerns of protectin

in$estors and ensurin the fairness of the

mar&ets throuh reu!ation of participants.

Uiewin the ct as a who!e, as we must, these

!oca! concerns remain the main thrust of the

!eis!ation B its pith and substance.

[129] <his is not a case of a $a!id federa!

scheme that incidenta!!" intrudes on pro$incia!

powers. =t is not the incidenta! effects of the

scheme that are constitutiona!!" suspectI it is

rather the main thrust of the !eis!ation that oesbe"ond the federa! power. <he federa!

o$ernment proper!" did not in$o&e the anci!!ar"

powers doctrine. <o app!" that doctrine, the

proposed statute considered as a who!e must be

$a!id B which it is not. +e further note that we

ha$e not been as&ed for our opinion on the

e0tent of 3ar!iamentNs !eis!ati$e authorit" o$er

securities reu!ation under other heads of

federa! power or indeed the interpro$incia! or

internationa! trade branch of s. 91526.

[1';] +hi!e the proposed ct must be found

u!tra $ires 3ar!iamentNs enera! trade and

commerce power, a cooperati$e approach that

permits a scheme that reconiJes the essentia!!"

pro$incia! nature of securities reu!ation whi!e

a!!owin 3ar!iament to dea! with enuine!"

nationa! concerns remains a$ai!ab!e.

[1'1] <he $arious proposa!s ad$anced o$er the"ears to de$e!op a new mode! for reu!atin

securities in Canada suest that this matter

possesses both centra! and !oca! aspects. <he

same insiht can be !eaned from the

e0perience of other federations, e$en if each

countr" has its own constitutiona! histor" and

imperati$es. <he common round that emeres

is that each !e$e! of o$ernment has urisdiction

o$er some aspects of the reu!ation of securities

and each can wor& in co!!aboration with the

other to carr" out its responsibi!ities.

[1'2] =t is not for the Court to suest to the

o$ernments of Canada and the pro$inces the

wa" forward b", in effect, conferrin in ad$ance

an opinion on the constitutiona!it" on this or that

a!ternati$e scheme. Yet we ma" appropriate!"

note the rowin practice of reso!$in the

comp!e0 o$ernance prob!ems that arise in

federations, not b" the bare !oic of eitherTor, but

b" see&in cooperati$e so!utions that meet the

needs of the countr" as a who!e as we!! as its

constituent parts.

[1''] Such an approach is supported b" the

Canadian constitutiona! princip!es and b" the

practice adopted b" the federa! and pro$incia!

o$ernments in other fie!ds of acti$ities. <he

bac&bone of these schemes is the respect that

each !e$e! of o$ernment has for each otherNs

own sphere of urisdiction. Cooperation is the

animatin force. <he federa!ism princip!e upon

which CanadaNs constitutiona! framewor& rests

demands nothin !ess.

M

ddressin the nature of this Auestion within the

conte0t of Canadian federa!ism, the Court notedF

L

[7] =t is a fundamenta! princip!e of federa!ism thatboth federa! and pro$incia! powers must be

respected, and one power ma" not be used in a

manner that effecti$e!" e$iscerates another.

Rather, federa!ism demands that a ba!ance be

struc&, a ba!ance that a!!ows both the federa!

3ar!iament and the pro$incia! !eis!atures to act

effecti$e!" in their respecti$e spheres. cceptin



CanadaNs interpretation of the enera! trade and

commerce power wou!d disrupt rather than

maintain that ba!ance. 3ar!iament cannot

reu!ate the who!e of the securities s"stem

simp!" because aspects of it ha$e a nationa!

dimension.

[8] +e therefore answer the reference Auestion

in the neati$e.

[9] =t is open to the federa! o$ernment and the

pro$inces to e0ercise their respecti$e powers

o$er securities harmonious!", in the spirit of

cooperati$e federa!ism. <he e0perience of other

federations in the fie!d of securities reu!ation,whi!e a function of their own constitutiona!

reAuirements, suests that a cooperati$e

approach miht usefu!!" be e0p!ored, shou!d our

!eis!ators so choose, to ensure that each !e$e!

of o$ernment proper!" dischares its

responsibi!it" to the pub!ic in a coordinated

fashion.

[1;] t this uncture, it is important to stress that

this ad$isor" opinion does not address theAuestion of what constitutes the optima! mode!

for reu!atin the securities mar&et. +hi!e the

parties presented e$idence and aruments on

the re!ati$e merits of federa! and pro$incia!

reu!ation of securities, the po!ic" Auestion of

whether a sin!e nationa! securities scheme is

preferab!e to mu!tip!e pro$incia! reimes is not

one for the courts to decide. ccordin!", our

answer to the reference Auestion is dictated

so!e!" b" the te0t of the Constitution,

fundamenta! constitutiona! princip!es and the

re!e$ant case !aw.

M

Sinificance[edit]

<he immediate impact of the decisionF

<he rea! Auestion at hand was about the nature

of Canadian federa!ism in dea!in with a matter

that does not fa!! sAuare!" within either federa! or

pro$incia! urisdiction.[12]

<he trade and commerce power, as oriina!!"

concei$ed in 3arsons and c!arified in Eenera!

otors, is sti!! ood constitutiona! !aw that does

not need to be re$isited.

<he propert" and ci$i! rihts power is adeAuate

for dea!in with the da"*to*da" aspects of

securities reu!ation, as the" do not possess a

nationa! dimension.[1']

Certain aspects of the proposed ct wou!d be

$a!id, but on!" those with a nationa! dimension,internationa! and interpro$incia! e!ements, or that

are re!ated to the crimina! !aw power.

<he edera! Eo$ernment has confirmed that it

wi!! not proceed with the proposed ct. <here is

current!" e0tensi$e discussion as to the best

manner for an" reform to proceed.[1(][1-][1]

[17]

Certain obser$ers aree that a nationa!

reu!ator" authorit" with a more focused brief is

sti!! possib!e under other heads of federa! power,

[18] as is the option of institutin a cooperati$e

framewor& with the pro$inces.[19] <here is

debate as to the !i&e!ihood of the pro$inces%

cooperation.[2;][21] =n Danuar" 2;12, inister of

inance Dim !ahert" stated that wor& is sti!!

continuin with the pro$inces to create a

nationa! reu!ator that wou!d function within the

bounds that the Court dec!ared was within

federa! urisdiction.[22]

<here is a!so concern that, $iewed on the

enera! princip!es of the opinion with respect to

the boundar" between federa! urisdiction and

the pro$incia! propert" and ci$i! rihts power, the

fo!!owin recent!" enacted federa! statutes ma"

a!so be on constitutiona!!" sha&" roundF[2']



3ersona! =nformation 3rotection and /!ectronic

Gocuments ct, and

ihtin =nternet and +ire!ess Spam ct, as we!!

as

amendments adopted in 2;12 to insert diita!

rihts manaement pro$isions into the Cop"riht

ct

Reference re nti*=nf!ation ct, [197] 2 S.C.R.

'7' was a !andmar& reference Auestion opinion

of the Supreme Court of Canada on the

constitutiona!it" of the nti*=nf!ation ct. =n what

has become amon the most sinificantfedera!ism cases of the supreme court, the ct

was he!d to be within the power of the federa!

o$ernment.

<he nti*=nf!ation ct was passed in 197-, on

recommendation of the #an& of Canada, to

contro! the rowin inf!ation of the past se$era!

"ears. Gue to rowin unease with the ct, the

federa! o$ernment put two Auestions to the

Supreme Court on the $a!idit" of the ct. <hemaor Auestion bein whether the ct was u!tra

$ires of the federa! o$ernment.

irst, the Court noted that the subect*matter of

the ct bein inf!ation made it impossib!e to

assin to one of the enumerated powers in the

Constitution ct, 187. ConseAuent!", the ct

wou!d be ab!e to be uphe!d on!" under the

peace, order and ood o$ernment power under

the Constitution which a!!owed the federa!

o$ernment to !eis!ate in matters re!ated to

emerencies or matters of nationa! concern. <he

Court !oo&ed at both options and found that the

!aw cou!d be sa$ed under the emerenc" power

of the peace, order and ood o$ernment

power.

ftermath[edit]

=n 1997, the Supreme Court found in the

3ro$incia! Dudes Reference that independent

commissions shou!d recommend the sa!aries of

udes. =f o$ernments reect therecommendations, the Supreme Court said

courts shou!d ana!"Je these reections in the

same wa" it ana!"Jed the nti*=nf!ation ct in this

case. =n 3ro$incia! Court Dudes% ssn. of ew

#runswic& $. ew #runswic& 5inister of Dustice6

52;;-6, the Supreme Court c!arified that that did

not mean an economic emerenc" was needed

to ustif" not fo!!owin recommendations. =t

mere!" referred to a re$iewin method to

determine whether the reection was rationa!.

Reference re irearms ct[1] is a !eadin

constitutiona! decision of the Supreme Court of

Canada on the di$ision of powers reardin

firearms !eis!ation and the Canadian irearms

Reistr". unanimous Court he!d that the

federa! irearms ct was constitutiona!!" $a!id

under the federa! crimina! !aw power.



Contents [hide]

1 #ac&round

2 )pinion of the Court

' See a!so

( References

- /0terna! !in&s

#ac&round[edit]

<he o$ernment of Canada amended the

Crimina! Code of Canada in 199- to inc!ude the

contro$ersia! irearms ct, which reAuired un

owners to ha$e them reistered and to obtain!icences for them.

<he o$ernment of !berta submitted a

reference Auestion to the !berta Court of

ppea! to determine whether the ct was in

re!ation to matters under the urisdiction of the

federa! o$ernment. <he o$ernment of !berta

arued that the !aw was in re!ation to persona!

propert" and thus was a matter in the urisdiction

of the pro$ince. <he federa! o$ernment,howe$er, arued that the !aw was in the rea!m of

crimina! !aw, which is under federa! urisdiction.


<he unanimous Court he!d that the pith and

substance of the ct was in re!ation to pub!ic

safet" which was a matter within the crimina!

!aw power of the federa! o$ernment. <he Court

cited the ararine Reference for the

reAuirements of crimina! !aw and noted the

daner of firearms, e$en if in some cases the"

cou!d be used beneficia!!". =ndeed, the

reu!ations were uded to promote responsib!e

firearm ownership, and the Court went on to

arue that there wou!d be a mora! daner if

firearms are used irresponsib!" 5mora!it" is an

e!ement in crimina! !aw, as estab!ished in the

ararine Reference6, a!thouh the Court said

that it was not ust a matter of mora!it" that a$e

3ar!iament the authorit" to pass this !eis!ation.

<he Court a!so noted that firearms ha$e beensubect to federa! reu!ation for "ears and that

the o$ernment of !berta cou!d not reasonab!"

cha!!ene man" of the ear!ier !aws.

ina!!", the Court reected a!! aruments that the

!aw was too e0pensi$e or disad$antaeous to

rura! reions, as these were matters for

3ar!iament to consider rather than !ea! issues

!iab!e to udicia! re$iew.



Reference re ssisted Human Reproduction ct[1] is an appea! from the Quebec Court of

ppea! to the Supreme Court of Canada on a

reference Auestion posed as to the constitutiona!

$a!idit" of the ssisted Human Reproduction

ct[2] that had been passed b" the 3ar!iament

of Canada.

Contents [hide]

1 =nitia! reference

2 ppea! to the Supreme Court

2.1 <he c@ach!in opinion

2.2 <he @e#e!TGeschamps opinion

2.' <he Cromwe!! opinion

' References

=nitia! reference[edit]

<he Court of ppea! was as&ed b" theEo$ernment of Quebec to answer the fo!!owin

AuestionF

L

re sections 8 to 19, (; to -', ;, 1 and 8 of

the ssisted Human Reproduction ct, S.C.

2;;(, c.2, u!tra $ires the 3ar!iament of Canada

in who!e or in part under the Constitution ct,

187

M

<he Court ru!ed in the affirmati$e in a!! respects

of the Auestion.

ppea! to the Supreme Court[edit]

<he appea! was a!!owed in part, with the Courtrenderin a rare (*(*1 mi0ed decision. <he

ustices% opinions were as fo!!owsF

W constitutiona!!" $a!id

W constitutiona! to the e0tent that the" re!ate

to constitutiona!!" $a!id pro$isions

W constitutiona!!" in$a!id

Sections c@ach!in C.D. and #innie, ishand Charron DD.@e#e!, Geschamps, be!!a and

Rothstein DD. Cromwe!! D. /ffecti$e ru!in

of the Court

8*19 ss. 8, 9, 12 and 19

ss. 1;*11 and 1'*18

(;*-' ss. (;516, 56 and 576I

(1*('I ((516 and 5(6I (-*-'

ss. (;526*5-6I ((526*5'6

;

1

8

<he c@ach!in opinion[edit]

<he ct is essentia!!" a series of prohibitions,

fo!!owed b" a set of subsidiar" pro$isions for

their administration. +hi!e the ct wi!! ha$e

beneficia! effects and whi!e some of its effects

ma" impact on pro$incia! matters, neither its

dominant purpose nor its dominant effect is to

set up a reime that reu!ates and promotes the

benefits of artificia! reproduction. Here, the

matter of the statutor" scheme, $iewed as a

who!e, is a $a!id e0ercise of the federa! power

o$er crimina! !aw. <he dominant purpose and

effect of the !eis!ati$e scheme is to prohibit



practices that wou!d undercut mora! $a!ues,

produce pub!ic hea!th e$i!s, and threaten the

securit" of donors, donees, and persons

concei$ed b" assisted reproduction.

<he @e#e!TGeschamps opinion[edit]

<he impuned pro$isions represent an o$erf!ow

of the e0ercise of the federa! crimina! !aw power.

<heir pith and substance is connected with the

pro$incesN e0c!usi$e urisdiction o$er hospita!s,

propert" and ci$i! rihts, and matters of a mere!"

!oca! nature. <he impuned pro$isions affect

ru!es with respect to the manaement of

hospita!s, since 3ar!iament has pro$ided that the

ct app!ies to a!! premises in which contro!!ed

acti$ities are underta&en. urthermore, the factthat se$era! of the impuned pro$isions concern

subects that are a!read" o$erned b" the Ci$i!

Code of Quebec and other Quebec !eis!ation is

an important indication that in pith and

substance, the pro$isions !ie at the $er" core of

the pro$incesN urisdiction o$er ci$i! rihts and

!oca! matters.

<he Cromwe!! opinion[edit]

<he matter of the impuned pro$isions is

reu!ation of $irtua!!" e$er" aspect of research

and c!inica! practice in re!ation to assisted

human reproduction. <he matter of the

cha!!ened pro$isions is best c!assified as

re!atin to the estab!ishment, maintenance and

manaement of hospita!s, propert" and ci$i!

rihts in the pro$ince and matters of a mere!"

!oca! or pri$ate nature in the pro$ince. Howe$er,

ss. 8, 9 and 12 in purpose and effect prohibit

neati$e practices associated with assisted

reproduction and fa!! within the traditiona! ambit

of the federa! crimina! !aw power. Simi!ar!", ss.

(;516, 56 and 576, (1 to (', and ((516 and 5(6

set up the mechanisms to imp!ement s. 12 and,

to the e0tent that the" re!ate to pro$isions of the

ct which are constitutiona!, were proper!"

enacted b" 3ar!iament. Sections (- to -', to the

e0tent that the" dea! with inspection and

enforcement in re!ation to constitutiona!!" $a!id

pro$isions of the ct, are a!so proper!" enactedunder the crimina! !aw power. <he same is true

for ss. ; and 1, which create offences. Section

8 is a!so constitutiona!, a!thouh its operation

wi!! be !imited to constitutiona! sections of the

ct. Ei$en that the other pro$isions estab!ishin

the ssisted Human Reproduction enc" of

Canada are not contested, there is no

constitutiona! obection to s. 19.

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