cdn consti - template#1

8/7/2019 Cdn Consti - Template#1

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TABLE OF CONTENTS (checklist if youre

stuck)Tools of Interpretation ( Quebec Ref,Patriation, Same Sex):-principles-convention-progressive approach living tree-extrinsic evidence only if ambiguity-colourability

-liberal interpretation

Apply the Constitution-Pith& Substance dominant purpose of thelegislation-Federal paramountcy-exhaustive principle-dual aspect doctrine? could be if there isvalid crim law, the provincial laws could apply-incidental effects

Constitutional Tests-Trade & Commerce General Power (fromGM, Parsons )-Criminal Law (PP&P) Firearms, RJRMacDonald -POGG National concern, emergencydoctrine Anti Inflation, Crown Zellerbach

Apply the Constitution to AboriginalIssues:-Honour and Integrity of the Crown-Extinguishment of rights-surrender of rights (alienability)-continuity

-Aboriginal rights-Aboriginal title

Constitutional Tests Pertaining toAboriginals:-AB Right/ AB Tittle

-know test for determining these-Violation of an Aboriginal Right -- theSparrow Test

SOURCES OF CONSTITUTIONAL LAWHow do you get constitutional issue beforethe courts?

1) When you are involved in litigation andyou have a direct interest R v Smith

2) Public Interest Standing in termsof the Constitution, other interestedpeople who have a real and substantialinterest may be allowed to bring anaction, and there is no other reasonableway to contest the law - Barowski

3) Reference this is where thegovernment takes over the action andthe government refers the matter to thecourt using s53 of the Supreme CourtAct Quebec Secession

TOOLS OF INTERPRETATION:

-should start by looking at express words inConstitution, then go to:

1) Principles:-can look beyond written text to principlesfrom

Quebec Secession for more clarity4 principles : Federalism, Democracy,Constitutionality and Rule of Law, andMinority Rights

It was said that none of the 4 mainprinciples over-ride one another andthat a negotiated settlement wouldneed to be reached

2) Conventiongenerally creates message that

Federal government should comply withconvention (Patriation Case )

convention isnt binding (likeprecedent), but it is persuasive

The constitution is both written andunwrittenValid reason principle underlyingGenerally does not create legal rights

Key elements to Convention (Patriation) are1) Precedent, 2) Intent to be bound by the

Convention, and 3) valid reason for theconvention

Does a Convention Exist?: ( Patriation CaseExamples )-Precedents and usage are sufficient but willnot suffice ---They must be normative3 main questions to be asked:TEST

1) What are the precedents?2) Did the actors in the precedents believethat they were bound by a rule?3) Is there a reason for this rule?-A single precedent with a good reason maybe enough to establish a rule

Precedents:-No amendment changing provinciallegislative powers has been made sinceconfederation when agreement of a provincewhose legislative powers would have beenchanged was withheld-

The purpose of this conventional rule i

sto protect the federal character of theCanadian Constitution and prevent theanomaly (something that deviates from thenormal) that the House of Commons andSenate could obtain by simple resolution

what they could not accomplish by statute-Notion of cannot do indirectly what you cantdo directly

3)Progressive Approach living treeapproach Flexible, interpretation changes as the

times change Dont look to framers view from 1867, but

rather the view of society today


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Could be a reason to overturn pastprecedent

Same Sex Marriage Case

Incidental effects of federal legislation in theprovincial sphere are permissible so long asthey do not relate, in pith and substance, to aprovincial head of power

4) Extrinsic Evidence(Morgentaler, Firearms cases

): May lookto court reports, Hansard reports, and/orstatements by politicians

5) ColourabilityWas there a valid purpose?

Is it enacted for what they say it is?Morgenatler: govt said they

were legislating health but because of circumstances we knew they were tryingto legislate abortions

6) Liberal interpretation Interpret against the party not drafting Textural Approach:

Based on the wording of theparticular case

Look to the plain meaning of thewords

**APPLYING THE CONSTITUTION**:

1) Pith & Substance Look to the intention of the legislation Often referred to as the laws matter,

feature, or true character Dominant purpose or aim is the key to

constitutionality Two test for determining pith/substance:

(

Employment Insurance and Firearmscas e)

PurposeEffect - can use extrinsicmaterial for evidenceFirearms Case

(Ask yourself why look atpreamble, other statements, andcite this in your answer).

2) Head of Power-what relevant head(s) of power may thisproblem fall into?- s91(federal) or s92(provincial)?

Powers of the Parliament : s91 It shall be lawful for the Queen, by and with the Advice and Consent of the Senateand House of Commons, to make Laws for the Peace, Order, and goodGovernment of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; andfor greater Certainty, but not so as to restrict the Generality of the foregoingTerms of this Section, it is hereby declared that (notwithstanding anything in thisAct) the exclusive Legislative Authority of the Parliament of Canada extends toall Matters coming within the Classes of Subjects next hereinafter enumerated;that is to say,1. Repealed.1A. The Public Debt and Property.2. The Regulation of Trade and Commerce.2A. Unemployment insurance.3. The raising of Money by any Mode or System of Taxation.4. The borrowing of Money on the Public Credit.5. Postal Service.6. The Census and Statistics.7. Militia, Military and Naval Service, and Defence.8. The fixing of and providing for the Salaries and Allowances of Civil and

other Officers of the Government of Canada.9. Beacons, Buoys, Lighthouses, and Sable Island.10. Navigation and Shipping.11. Quarantine and the Establishment and Maintenance of Marine Hospitals.12. Sea Coast and Inland Fisheries.13. Ferries between a Province and any British or Foreign Country or between

Two Provinces.14. Currency and Coinage.15. Banking, Incorporation of Banks, and the Issue of Paper Money.16. Savings Banks.17. Weights and Measures.18. Bills of Exchange and Promissory Notes.19. Interest.20. Legal Tender.21. Bankruptcy and Insolvency.22. Patents of Invention and Discovery.23. Copyrights.24. Indians, and Lands reserved for the Indians.25. Naturalization and Aliens.26. Marriage and Divorce.27. The Criminal Law, except the Constitution of Courts of Criminal

Jurisdiction, but including the Procedure in Criminal Matters.

28. The Establishment, Maintenance, and Management of Penitentiaries.29. Such Classes of Subjects as are expressly excepted in the Enumeration of

the Classes of Subjects by this Act assigned exclusively to the Legislaturesof the Provinces.

Powers of the Provinces : s92 In each Province the Legislature may exclusively make Laws in relation toMatters coming within the Classes of Subjects next hereinafter enumerated; that isto say,1. Repealed.2. Direct Taxation within the Province in order to the raising of a Revenue for

Provincial Purposes.3. The borrowing of Money on the sole Credit of the Province4. The Establishment and Tenure of Provincial Offices and the Appointment and

Payment of Provincial Officers.5. The Management and Sale of the Public Lands belonging to the Province and

of the Timber and Wood thereon.6. The Establishment, Maintenance, and Management of Public and Reformatory

Prisons in and for the Province.7. The Establishment, Maintenance, and Management of Hospitals, Asylums,

Charities, and Eleemosynary Institutions in and for the Province, other thanMarine Hospitals.

8. Municipal Institutions in the Province.9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of

a Revenue for Provincial, Local, or Municipal Purposes.10. Local Works and Undertakings other than such as are of the following Classes:(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works

and Undertakings connecting the Province with any other or others of theProvinces, or extending beyond the Limits of the Province:

(b) Lines of Steam Ships between the Province and any British or ForeignCountry:

(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for thegeneral Advantage of Canada or for the Advantage of Two or more of theProvinces.

11. The Incorporation of Companies with Provincial Objects.12. The Solemnization of Marriage in the Province.13. Property and Civil Rights in the Province.14. The Administration of Justice in the Province, including the Constitution,

Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in thoseCourts.

15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter comingwithin any of the Classes of Subjects enumerated in this Section.

16. Generally all Matters of a merely local or private Nature in the Province.

3) Federal Paramountcy-When conflict between federal and provincialgovernment-Must be valid federal or provincial lawstogether in conflict and it is impossible tocomply with both


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-Could be where: provincial law frustrates thepurpose of the federal law, then it will bestruck down -Federal law prevails, if there is aninconsistency foundDivision of powers (steps 1-2 above):

Identify the character of the law pith/substance or dominant purposeAssign the character to either S.91 or S.92 based on the exhaustive doctrine in thatit has to fit somewhere

Paramountcy will arise where:TEST

Fed/prov laws are each valid ie intra vires;andThe laws are inconsistent ( Rothmans )

Inconsistent when:One law expressly

contradicts, which makes it impossible tocomply with both

Schneider narcotics/criminal treatment could complywith both, ie get treatment and go to prison

Where provincial law frustrates thepurpose of the federal law

4) Exhaustive Principle-No gaps in the law both level of govt growto incorporate areas of law that were notforeseen by the framers in 1867-para 34 Same Sex Marriage Reference

Incidental effects of federal legislation in theprovincial sphere are permissible so long as

they do not relate, in pith and substance, to aprovincial head of power-if it isnt federal, it is provincial and viceversa no third domain -- so it is exhaustive

5) Dual Aspect Doctrine-One area of law can be covered by bothfederal and provincial law, so long as onedoes not frustrate the other (Rothmans )

-so long as the pith and substance is thesame, can have both federal and provinciallaws

Negative implications of covering thefield:

Where one level of govt enters the field,no other level can enter that field

1. Where the federal law enters, does itpreclude provincial from entering? NOnot in Canada can have bothlevels working in the same areaprovided that both have valid pithand substance (no abandonment if Feds abandoned, doesnt matter)Morgentaler

2. If the provincial law supplements thefederal law, then it is OK

3. Province can even duplicate so long aswithin their domain

Example: Criminal negligence on highways:Dangerous driving causing death, valid Crimlaw, Provincial Law = careless driving-

OGrady v Sparling and Mann v The Queen(driving cases)

Where the federal govt enters a fieldthat is covered by the provinces, butthat the provincial govt is yet to actupon:

1. Normally would be provincial, sowhen do you allow the federal govt to fillthe void? Ancillary Power 2. Must ask is what they are doingan integral part to their legislation?

6) Incidental EffectsTies into the notion of dual aspectIn determining if there is too muchintrusion, look to Ancillary Powers howmuch intrusion there is and to whatextent? (

GM Case )

If there is intrusion, how essential is thatintrusion to the Act as a whole? And if it isnot essential, is it severable?3 Step Test When does it become a valid AP?STEP 1 Consider extent the impugnedprovision intrudes into provincial powers.The more intrusive the leg, the stricter thetest.STEP 2 Is the Act valid? YES. (you needthat in 1 st place)STEP 3 If Act is valid then court must besatisfied that the impugned provision issufficiently integrated into validlegislation. Is the provision functionallyrelated to the general objective of thelegislation and to the structure andcontent of schemeSLIDING SCALE intrusion,

justification, intrusion,

justificationSCC tries to limit federal encroached onprovincial domain

Ancillary Powers Example : in order to carryout valid legislative purposes, govts havenecessary ancillary powers that may intrudeon powers traditionally held by another levelof government-ie banking is federal, but when you sign thecontracts, provinces have power overbanking contracts

Same Sex Marriage CaseIncidental effects of federal legislation in theprovincial sphere are permissible so long asthey do not relate, in pith and substance, to aprovincial head of powerAncillary Power: - Tie in toTrade/Commerce Powerso Labor Conventions Case beyond the

federal govt powers to use backdoormeans to enact laws which are under thejurisdiction of the provinces


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o Cant do indirectly what you cant dodirectly

o Patriation Case if initially could notamend the constitution by themselves,the federal govt should not be able to goto the UK over the head of the provincesto alter the constitution without theirconsent in this case it was Federalismitself that had to be dealt with and theapproval of the provinces with mutualagreement

o Ties in with the whole 4 elements of theconstitution: federalism, democracy, ruleor law and minority rights

7) Interjurisdictional Immunity: can theprovince legislate insurance of RBCwhen RBC is a bank? yes Doesinsurance go to core of banking? NO. So,it is bec it does not go to core of banking.-an undertaking is validly created (ie the PostOffice )-valid provincial laws of general applicationare sought to be applied-there is no competing federal law in conflict(ie no federal paramountcy )-Interjurisdictional immunity may make thefederal undertaking immune from provinciallaw

Western Canada Bank v Alberta -Adoctrine of limited scope-Doctrine will only apply where provincial law

impairs (not just effect) the federalundertakings core its basic, minimum andunassailable content that is vital andessential to the undertaking.From Western Canada Bank v Alberta - Banksnow are in the insurance business-can be dealt with under double aspectprinciple and federal paramountcy-jurisdictional immunity should be a verylimited scope

-Does the sale of Insurance impair thebanking industry which is valid federalindustry? No-is the insurance protecting the core? No-SCC, insurance is NOT a core for the bank

-no impairment, properly trainedinsurance agents wouldnt be able to impairthe core of banking

***look to dual aspect, then to federalparamountcy THEN turn to jurisdictionalimmunity

CONSTITUTIONAL TESTS1) Trade & Commerce

The General Power: ( Parsons; GM )can deal with:

foreign tradeinterprovincial trade

matters dealing with national concernaffecting entire dominion ( Parsons)

CANNOT regulate one particular industry ortrade (Parsons )Federal govt authority to legislate for theregulation of T&C does not comprehend thepower to regulate by legislation the contractsof a particular business or trade , such as thebusiness of fire insurance in a single provinceo with regard to contracts:

1. from the

Parsons case in regardsto the regulation of fire insurancein the provinces

2. it follows that the incorporation of

companies for objects other thanprovincial falls within the generalpowers of parliament. But it by nomeans follows that because thedominion parliament has alone theright to create a corporation tocarry on business throughout thedominion that it alone has the rightto regulate its contracts in each of the provinces

CJ Dicksons 5 point Test to determinevalidity under General Trade and CommercePowers s 91(2)

(GM Case)1. is the legislation part of a generalregulatory scheme? (the leg has toregulate something ie) regulation of national transportation of goods)2. the scheme must be monitored by thecontinuing oversight of a regulatory agency (it might be a certain dept, minister doing checks & balances)3. the legislation must be concerned withtrade as a whole rather than with aparticular industry (cloning too specific)4. the legislation should be of a naturethat the provinces jointly or severallywould be constitutionally incapable of enacting5. the failure to include one or more provinces or localities in a legislative

scheme would jeopardize the successfuloperation of the scheme in other parts of the country.

(If Ancillary Power goto 3 step test in column 1) look at look at how far into prov pwr the Act intrudes)

2) Criminal Law - Margarine Reference Federal:o S.91(27) criminal law, substantive

criminal law, including procedure incriminal matters- ie. Evidence Act

o S.91(28) establish and maintenance of penitentiaries

Provinces:o S.92(14) Administration of criminal law

is provincial, those who prosecute crimesare provincial. Procedure over civilmatters, but not criminal

o S.92(15) power of province to impose apenalty can include imprisonment


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o S92(6) maintenance of jails (less then 2years confinement)

Must have for Crim inal Law: Firearms Reference/Margarine1) Prohibition2) Penalty is it particularly harsh? Indicatescrim law -

Morgentaler 3) Purpose - public purpose = peace, order,security, health, morality (from

RJRMacDonald )-To find purpose: look at pith and substanceto find the public purpose ( Firearms )-Boggs v R if the public purpose is toobroad, then the Crim Law becomes too broad-can look to extrinsic evidence Morgentaler,Firearms

If P&S is Criminal consider: ancillary power-is there an argument that the law is inProvincial domain?

-

Firearms case licensing wassecondary/ancillary -for contracts: test: rational and functionalconnection to the crim law purpose?-intrusion? - Crown Zellerbach

Concepts:-Crim power is very broad:

Morgentaler,Rothmans-The entire industry doesnt have to betargeted (ie reduce consumption of alcoholcan just target beer) Firearms-Margarine case one industry

(margarine) can be targeted under CrimLaw, but cant be regulating the industrymust actually be targeting a public evil-consider colourability are they sayingthey are regulating x, but by regulating y itisnt colourable? GM-Presumption of Constitutionality when Pputs forth legislation, it is presumed to beconstitutionally valid

Firearms

-Court doesnt care if the law will/will notwork or if it is a waste of money - they willdecide if the law is legal Firearms -The fact that it wasnt criminal in the past,doesnt matter it can be criminal today ( RJR)- Legislation can overlap, Schnieder case

criminal law can co-exist with provincial if can identify true pith and substance-Area abandoned by the Feds? Not arguable,

doesnt matter in Canada Morgentaler -could it be a Charter issue? Ie in the STDexample, if people didnt want treatmentcould be a Charter issue

3) POGG - Residual clause too wide -often- start by looking at the express heads of powers, and if falls there, stop-if it doesnt fit within one of those heads,then turn to POGG power-Allows the federal govt ability to enactlegislation that does not come exclusivelyunder one of the enumerated heads of theprovincial govt-POGG fills the gaps related to theexhaustive principle

POGG has three branches:1) The Gap branch of foreign treaties, iefederal incorporation-compliments existing power relationships-not covered in this course (rarely used)

2) The National Concern branch

Crown

Zellerbach case-doesnt have to be temporary-Environmental Concern as from Zellerbach isNOT a national concernTwo factors of national concern:a) must have a singleness, distinctiveness,and an indivisibility (SID) that clearlydistinguishes it from matters of provincialconcern (could go under licensing)

-does it fall under any of the Provincialpowers?-what does it target?, ie just human cloning(singleness) or all reproduction (toobroad)?-New matter? Not a requirement to be new-Why need SID? It needs to be containedif it would fall outside the bounds of SID thenit would intrude far too much into provincial

concerns

b) scale of impact on provincial jurisdictionthat is reconcilable with the distribution of legislative power under the Constitution-is it a serious intrusion in Provincial domain?-What are the head(s) of power in theprovince that are being impacted?-but is there a provincial inability if they donthave it?

3) The Emergency branch

Anti-Inflation case -supported if rational basis to support theview that an emergency exists-there needs to be an emergency-temporary legislation over-rides provincialpowersTo show if legislation isCrisis/Emergency Legislation:

Is the federal contention assisted by thepreamble to the statute strengthens thegovt position, however, the validitydoesnt win based on a preambledoes the extrinsic material show thatthere is a rational basis for the act as acrisis measure look to statistics fromprofessionals etc.does the legislation rise beyond local or provincial matters? necessary forfederal authority

CONSTITUTIONAL INTERPRETATION:ABORIGINALS


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S.91(24) Indians, and lands reserved forIndiansS.35(1): The existing aboriginal and treaty rights of the aboriginal peoples of Canada arehereby recognized and affirmed . (Sparrowcase)o Since located in PART 2 of the

constitution, not subject to the charterlimitations, such as S.1 or S.33

existing aboriginal and treaty rights of theaboriginal peoples are hereby recognized and affirmed (Sparrow Case)

WHO are ABORIGINALS?S35 (2) In this Act, aboriginal peoples of Cda includes the Indian, Inuit & MetisPeoples of Cda.

FURTHER PROTECTION of AboriginalRights:S.25(1) shall not be construed so as toabrogate/derogate from any aboriginal, treatyor other rights/freedoms that pertain to theaboriginal peoples of Canada including: o i) Rights/freedoms recognized by the

Royal Proclamation October 7, 1763o ii) Now exist by way of land

claims/agreements or may be so acquired

1) Honour & Integrity of the Crown-Refers to all the Aboriginal cases (citeGuerin )

- fiduciary obligation of the Crown to theAboriginals to act in utmost good faith-(

Marshall Case ) how to interpret a Treaty try not to make a bad name for the govt bytaking advantage of the Aboriginals

2) Extinguishment of Rights-prior to 1982 (Constitution) and s35 Aboriginal rights could be extinguishednowCrown cannot do that because of s35 they

have constitutional right to existingAboriginal rights-prior to s35 didnt need to consult with theAs to extinguishgovt could grant rightsand take them away (Calder) said youregoing to have to negotiate here-The test of extinguishment to beadopted is that the sovereigns intentionmust be clear and plain if it is to extinguish

an aboriginal right (

Sparrow )-Subsequently , s35 aboriginal rightscannot be extinguished and can only beregulated or infringed upon - consistent with the justification test laid out in

Sparrow .

Provincial Extinguishment/InfringementUnder s88 of the Indian Act Dick v The Queen s88 does apply if it goes to core of Indian-ness, then you can apply s88-What is the province trying to regulate? (lookat pith & substance)-Is it a general application of a law thatapplies to everyone? If yes, s88 does NOTapply-Does the law affect a core Indian-ness? Can be in addition to the generalapplication, and if yes, then s88 applies/canbe invoked.-If s88 is invoked, it extends the generalapplication of a provincial law to coverAboriginals, despite affecting their Indian-ness if there was no s88 in the Indian Act,the province wouldnt be able to regulatethem because protected under s91(24)

-usually involves the Wildlife Act whichregulates hunting/fishing-s88 has no application where the provinciallaws do NOT impact the Indian-ness-Indian-ness - doesnt even have to be an AR,just part of the culture or something

***S.88: (Provincial Extinguishment of Rights) ( DEG v. BC )

Can the Provinces enact laws thatextinguish an Aboriginal right?- If aboriginal Act that allows for smoking onthe reserves, and a provincial Act which banssmoking province-wide, what happens? Whotakes precedence?- Must look to see if smoking goes tothe Indian-ness of the group as awhole

- If the law is a general application to all inthe province then it may apply to reserves aswell as the province - extends general applicof province in past, not able to, but s88allowed them to intervene says if it caninterfere w/ their Indian-ness!- S.88 applies to provincial laws which impair Indians- Only when it goes to the core of the aboriginalcommunity do you invoke S.88 - If it does not and the general application is under validprovincial law, then the law is valid on the reserves aswell as everywhere else

3) Surrender of Rights Title What does this mean how do you

surrender and to whom? ( Guerin Case ) Royal Proclamation provided that no

private person could purchase from theIndians any lands that the Proclamationhad reserved to them, and providedfurther that all purchases had to be by andin the name of the Crown so as toprevent the Indians from being exploited

Parliament had conferred upon the Crowna discretion to decide for itself where theIndians best interest really lies ties intothe notion of honor/integrity, Crown hasa FIDUCIARY DUTY to As in that itsobliged to deal w/ surrendered land in bestinterest of A peoples concerned

4) Continuity-AT - maintenance of a connection to the land Delg v BC-AR relevant period of time prior tocontact w/ Europeans ( demonstratescontinuity, but interpreted flexibly to recog


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customs & traditions evolve over time ) Vander Peet & diff w/ proving a right where nowritten records Delga v BC

5) Aboriginal RightsGuerin Case recognized aboriginal rightsbased on occupation and possession of land with this new occupation power the

aboriginals were able to go to the table withsomething to bargain with against the govt,as opposed to the govt holding all the powerSparrow Case shows that no rights areabsolute so long as the govt can justify itsinfringement of a recognized right then it isfine-Need a clear/plain intention to extinguishan aboriginal right

Van Der Peet Case: -notion of existing aboriginal right-must have an element of practice/custom/tradition integral to thedistinctive culture of the aboriginal groupclaiming the right

6) Aboriginal TitleCalder v. AG of BC recognized aboriginaltitle as a legal right derived from theIndians historic occupation andpossession of their tribal lands

De lgamuukw v BC Case: -Aboriginal title = exclusive right tooccupy or use land a subcategory of ARights , arises where the connection of anAboriginal people with a piece of land was of central significance to their distinctiveculture. It is relationship between CL andpre-existing systems of A law. Use of landmust be reconcilable w/ groups attachmentto land. It is held communally, decisions w/respect to that land made by community.- It gives the right to use the land for avariety of purposes more power to decide

what is to be done on the reserve (like aneasement) (more broad than AR)-AT has nothing to the withcustoms/traditions-so can have AR but not AT, and can have ATbut no AR on the land-Where AT and AR could both be involved is :where an iron ore Co. wants to stripmine the land could destroy land and

the hunting, so could impact on both(so some activities can impact on both)-AT is inalienable cant transfer/sellexcept surrender to Crown-Can you regulate land which is underaboriginal title? YES for conservationpurposes or public importance butcompensate for the loss-oral evidence is important

CHARACTERISTICS of A-TITLE Lamer CJ- held communally (ie two tribes), cannot beheld by indiv A persons; subject to aninherent limit in that lands subject to A-titlecannot be used in a manner that isirreconcilable w/ nature of the attachment toland which forms basis of the groups claim toA-title;- however subject to this inherent limitation,A peoples are free to use lands subject to Atitle in any manner of their choosing andneed not restrict themselves to thoseactivities that had been engaged in prior tocontact w/ Europeans;- time period for establishment of A-Title is

time at which Crown asserts sovereignty overthe land subject to title (which differs w/ timefor estab an A-right which is time prior tocontact w/ Europeans)- occupation of land must have beenexclusive to claim title; &- where exclusive occ can be proven, it is suff to demonstrate that title to land is of centralsignificance to culture of claimants

- Aboriginal Rights flow from historic useand occupation of land by A people, arisefrom occupation of land, they can also arisefrom prior social organization & distinctivecultures of Aboriginal peoples on their land.Even in a case where an A people cannotprove a right to exclusive occupancy and useof particular lands ( which would ground aclaim to A title over such lands ) they may be

able to demonstrate they engaged in practiseor activity that was integral to theirdistinctive culture, that rises to the level of aprotected A-right. ( still part of Van der Peet )*** But in D v BC A-Right is a distinctivepractise, custom or tradition that may ormay not be connected to a specificlocation or piece of land.

CONSTITUIONAL TESTS: ABORIGINALS

1) Aboriginal Right Van der Peet todetermine if AR In order to be an aboriginal right , an

activity must be an element of a practice,custom or tradition integral to thedistinctive culture of the aboriginal groupclaiming the right .

Factors to be considered: the perspective of the aboriginal

peoples to be integral the practice, custom or

tradition must be of central significance those which have continuity , existed

prior to contact (w/ Metis , this timeframe does not apply relevant date of effective European control around 1850(Powley in Ontario)

rules of evidence must be approached inthe light of evidentiary difficultiesinherent in aboriginal rights

aboriginal rights need to be argued on aspecific not a general basis (bec thatswhen floodgates open)


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Integral to a Distinctive practice Test(special) (not incidental): doesnt meanthe practice, custom or tradition isunique to that society Marshall no 3

Must be done on a case by case basis

(trapping is to sell fir & not enough info onfacts, is it for commercial purposes?) It doesnot seem so

2) Aboriginal Title Delgamuukw v BC ,*Marshall No. 3Criteria for Determining Aboriginal Title:

1. Proof of occupancy - (land must havebeen occupied prior to sovereignty, -shared or alone - doesnt have to becontinuous)

2. If Present occupancy is relied upon asproof, there must be continuitybetween present and pre-sovereignty

(independence) occupation - w/substantial maintenance of theconnection

3. Occupancy must be exclusive

- title gives proprietary rights over landto do w/ land as they wish exclusiveoccupation

- Can Crown regulate land underAT? Yes for conservation or publicimportance & will compensate for loss

Scope of the Duty ( Delgamuukw applied to non-established claims)Depends on:-the strength of the case (the weaker thecase the less consultation, stronger = morecompo, more consultation), & seriousness of potential impact (destroying forests, salmon,etc)Duty may include ( Haida case): -give notice

-provide info-discuss any issues raised in response-if aweak claim is raised-consultation w/ formal partic of AB groupsin decision process-deep consultation-accommodation(list goes from weak case/low impact tostrong cases/high impact)

(main question have reasonable effortsbeen made = reconciliation on bothparties on interests at stake?)

**Controlling Question: What is required tomaintain the Honour of the Crown?-where claims unproven, no fiduciary duty(Guerin )

Treaty rights can extend beyond the treaty(and treaty land) outside his reserve, anyAT landDUTY TO CONSULT & ACCOMODATE ABRIGHTSExample: Haida Case :-Haida claimed A-Title & A-Right they wantto go to Ct and get an injunction to stoplogging on lands in- claim laid on QCI for over 100 years,claimed red cedar trees from Queen CharlotteIslands were integral part of their culture.Haida not happy w/ logging of federalcompanies to clear cut. Not yet resolved inCT.- Haida says Crown owes them a duty toconsult and accommodate whenever dealing with the forests- without consultation, they may win landwith no value- if we dont get consultation, we will win ourtitle, we have a right now to this- SCC unanimously held the Crown wasobliged by s35 to consult w/ Haida people andaccom their concerns.

***Duty arose from concept of Honour of Crown which means:

Principle: The Crown acting honourablycannot cavalierly run roughshod overAboriginal interests where claims affectingthese interests are being seriously pursued inthe process of treaty negotiation and proof (extent of duty to accommodate = will turn

on a preliminary pf assessment of strength of A claim)pg.472

-without consultation they may win land withno value-forests will be destroyed in the interim (sobased on Delgamuukw , owed a duty toconsult) 3) Violation of an Aboriginal Right The Sparrow Test1) Is there an existing ( non-extinguished ) Aboriginal right? Onus on the aboriginalcommunity/challenger to prove he/she wasacting pursuant to an Aboriginal rightprotected by s35.(identify nature of claim being made ct will look atactivities being engaged in & nature of impugned govtregulation & nature of custom or tradition & perspectiveof A people claiming the right = AR) Is it distinct to hiscommunity prior to contact yes - trade

**Look at Van der Peet test DEFINES what ARis above or see if right claimed is pursuant toa TREATY (if AR is established via test orbec activity is protected thru a treaty, ctmoves to 2 nd stage Van der Peet arguedselling/trade was for food/necessities )

2) Has it (AR) been extinguished? (in Van derPeet, AR to trap and fish for food, we might have govtregulation which prevents you from selling certain things.Argument could be reg which prohibits selling does notinterfere w/ right to hunt and fish for food. You could stophere) (was the right existing (not extinguished thru validfed leg or reg) at time of enactment?, *prov laws canlimit but NOT extinguish A-rights Delga v BC) wasthere a clear & plain intention to do so?)


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Onus is on the state/federal govt to proveextinguishment-CT said a clear and plain intent toextinguish is needed (only fed leg that have aclear & plain intention to extinguish an A-Right will havethis effect detailed reg & proh of certain activities hasbeen interpreted in recent cases = CONTINUED existenceof an AR.***) So, if AR Not extinguished before 1982, goto step 3.3)If an existing right is found, is AR interfered

w/ by State Onus is onchallenger/aboriginals to show aninfringement of the protected existingAboriginal right (Mr. Sparrow would need toprove why he needs a big net, hed haveproblems proving a significant infringementbec he can still fish) (an infringement generallyfound where regulation in question burdens the preferredmode or manner of exercise of a protected right, look forbroad regulation whichll = sig consequences for exerciseof AR generally = pf infringement). Theyre not lettinghim do it.

What is needed to showinfringement ?

a. Is it (limitation) reasonable? wantto control bear pop? (could bereasonable), 25 fathom netunreasonable? No!

b. Does it give undue hardship? noit just may take a little longer

c. Does it deny the holders of theright, their preferred means of exercising their aboriginal right?

4) Justification If so, can the State JUSTIFYinterference and show why theyinfringed/interfered the way that theydid? (Can you have an interference thatdoesnt require justification?)

- Onus is on State/CROWNHow do we justify : (govt has fiduciary obligto As):

i. Valid objective ? ie) to maintaingrizzly pop yes

- If there is, the priority must be givento AR given to A people bec we areinfringing upon their rights.

- Is there a public interest? (theimpugned law must be enacted for acompelling & substantial objective ie) conservation? as laws are oftendesigned to ensure there are suff natural resources available for wholecommunity, others = economic &regional fairness & recog of historicalreliance on & part in fishery by non-

aboriginal groups while furthering goalof A-R, promo sports fishing w/outecon compo would fail this test)

ii. Safeguard priority of aboriginal rights as compared w/ other grps? conservation, AB & all other interestsin terms of # of fish, they would getfirst dibs and then the communitywould come next, extent of thispriority will vary w/ nature of claimadvanced if not self-limiting ie)hunting or fishing? Govt must dem Ahave priority over exploitation of resources of other users (Gladstone)

iii. Minimal infringementiv. Fair compensation? - If you are forcing

Mr. Sparrow to take a longer time,maybe compensate him or reducedlicense fees & extent of participationin fishery of A-Rs holders rel to theirpopulation

v. Consultation (Guerin) it is crucial State has a fiduciary obligation to doso. Did State consult Aboriginalcommunity if going to infringe? Didyou ask proper people or experts howdeep you have to go to get right fish?

***Second part of justification:Refer back to the guiding interpretiveprinciple derived from ( Guerin ) That is, thehonor and integrity is at stake in dealingswith the aboriginal people. The special trustrelationship and the responsibility of the govtvis--vis aboriginals must be the first

consideration in determining whether thelegislation or action in question can bejustified

(SCOPE of Aboriginal rights = hunting of whales, worship of sacred trees/forests,smoking, gambling, logging to build homes,logging to sell it is imp to characterize theright fishing is distinct/integral to the A and

their culture, getting $ was incidental(ancillary to it) vs integral to their culture.The ct requires it must be integral to societyunder s25)

4) Treaty Rights - (official agreementsbtwn Crown & ABs = enforceable obligationsbased on mutual consent of parties & isdefined in Marshall case)Marshall 1 Case Treaty rights are limitedto securing for necessaries (meresubsistence) moderate livelihood food,clothing, shelter & some extras but not forthe accumulation of wealth, indicating thatthey were allowed to engage intraditional trade for a moderatelivelihood

Treaty rights are subject to regulationunder Badger = means applying SparrowTest to treaties allowing them to be over-ridden if justified for conservation mattersetcCan we place limits upon a Treaty? YESSparrow says a narrow interpretation can bemade & you can and Sparrow test is sametest you will apply to treaties!Badger applies the Sparrow test to Treaties-test for violation/infringement of an AR andATR is the same.

(GOTO SPARROW 3 PTS:)1) is there an existing treaty right? Yes.,2) Has the treaty been extinguished? No,never.


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3) Is the treaty right been interfered w/ by theState? Yes X fished during a closed season,licensing, limit on huntingthat wouldinterfere w/ As right to X for trading purposesand ban on sales (if enforced) would infringehis right to trade for sustenance (GO THRUREST OF TEST ON LEFT)

- When interpreting a TREATY look atcommon intention of parties. (Aswanted gun pwder from Brits who didnot want them to trade w/ French in1760 they wanted peace &friendship which is what they want w/As

- Truck houses created to build trustand dependency on Brits deal B wanted them to be peaceful, M needed food, gun pwder, necessities

- a court must take into acct thecontext in which treaties werenegotiated, concluded & committed towriting

- Treaties as written dox often did notalways record full extent of agreementas many were ORAL Guerin, Delgav BC

- So, should not be interpreted instrictest sense nor subjected to rigidmodern rules of construction

- If ambiguity in words or phrases,language should not be interpreted todetriment of Indians

- Not to take a frozen approach butrather a reasonable evolution basedon framers intents at time

- CT said numerous times there can beNO limitations on method, timing &extent of Indians hunting under atreaty ( NOW - Badger/Sparrow Test)

- In absence of any justification of regulatory prohibitions, theappellant is entitled to an

acquittal here no stats to show eelswere a protected or limited species inorder to justify a limit for conservationpurposes

- Policy issue in evidence? Ie) # of bears killed

Marshall 2 Case - about how regulation &conservation is valid to regulate treaties

-Confirms that regulation of treaties ispossible based upon conservation orpublic importance -Sparrow Case Safeguarding Priority butwhat are the priorities?

1 must be conservation first2 Aboriginal subsistence food etc3 common/non-aboriginal rights

-Go back and look to the specific wording of the treaty and try and fit the activitybeing claimed under the treaty as atreaty right evolution is OK so long as itdoes not drastically depart from the intentionof the framers of the Treaty (ie using sonar tofish okay)-In reference to the Marshall No3 Case there was no indication of trade of woodproducts by the As to the British in 1760 therefore it could not be implied Englishcould have done the logging themselves asthey had the necessary machinery-Court looking for intention of the partiesand British etc. when they signed thetreaties

-Look for logical evolution then try andshow that the current activity is connected toactivities that the Indians enjoyed in the past-Even if trade was an activity of the past ,must look to what the trade entailed. InMarshall # 3 trade was about fish andpelts, not the trade of lumber and wood therefore logging would not be covered undertreaty rights today*Delga v BC self govt pg. 471

- decided that rights to self-govt must satisfytests in Van der Peet and can only beadvanced on a specific rather than a generalor abstract basis* think of BOX Land outside of land areABORIGINAL RIGHTS, can exist outside of treaty land (Van der Peet), Sparrow both did.

- ABORIGINAL TITLE can extend your

territory rights can keep on goingbeyond area of occupation- Arguably, Mr. Dick was a

hunting/gathering people who wouldhunt and fish, a distinctive part of hisculture outside his reserve and outsidehis title land. TREATY LAND = ADESIGNATED TREATY RESERVE LAND.


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****CASES******

Interpretation Cases:Quebec Secession CaseIssue: Does Quebec have the power tosecede from Canada unilaterally?Held: one province cannot unilaterally secedefrom the federation. However, should therebe a clear democrat vote in favour of separation this would give rise to anobligation to negotiate.Reasoning: Court identified FourConstitutional Conventions1. Federalism : Canada is a Federal state shares power between Parliament and the

Provincial Legislatures. important role in constitutional

interpretation.2. Democracy : assumed under the Constitution. The values of democracy include: respect

for the inherent dignity of the humanperson, commitment to social justice andequality, accommodation of a wide varietyof beliefs, respect for cultural and groupidentity, faith in social and politicalinstitutions which enhance the participationof individuals and groups in society.

system of democracy is committed toconsidering dissenting voices andaddressing them.

3. Constitutionalism and The Rule of Law : country is a stable, predictable and ordered

society in which to conduct their affairs.

provides a shield for individuals fromarbitrary state action.

CA 1982 all government actions mustcomply with the Constitution.

creates an orderly framework within whichpeople may make political decisions.

4. Respect for Minorities : Constitution protects minority language,

religion and education rights.

No one principle trumps another, they mustbe taken together.

Aftermath: The Clarity Act the result of a referendum on the secession

of a province from Canada must be free from ambiguity both in terms of the

question asked and in terms of the supportit achieves

if that result is to be taken as an expressionof the democratic will

it would give rise to an obligation to enterinto negotiation that might lead tosecession. The House of Commonsdetermines the clarity of a question.

s1(3) the question must be a clearexpression of the will of the population of aprovince

s1(4) wont be clear if economic of politicalarrangement

s1(6) if the question isnt clear there is noobligation to negotiate

If the question is clear, then it needs to be

determined if there has been a clearexpression of political will s2(2) in considering if there has been (a) a

clear expression of will, there must be clearexpression of the will by a clear majority.The House of Commons will take intoconsideration the population of a provincethat the province ceased to be part of Canada. The size of the majority of validvoters cast in favour of the secessionist


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option, (b) the percentage of eligible votersvoting in the referendum and (c) any othermatters or circumstances it considers to berelevant.

Constitutional Convention : unwritten rulesof constitutional behviour that ought to beconsidered binding. Central to the operationof the Constitution.

Reference re Same Sex MarriageIssues: Is annexing the proposed Actregarding the legal capacity for marriage forcivil purposes within the power of Parliament?

Reasoning:Pith and Substance : a doctrine used todetermine whether particular laws enacted byParliament or the provincial legislature arevalid. Two prong test:

1.The Court must determine the essentialcharacter of the law. purpose or aim of the law mischief law was meant to remedy can examine extrinsic material (hansard

or relevant legislations, testimonybefore Standing Committees,government reports etc)

2.Under which head of power does theessential law fit? s91 - s95 TEST : whether this kind of law should

be enacted at the federal or provinciallevel?

factors: kind of statutes that havetraditionally been enacted undereach level, measure new statute byanalogy

in difficult cases, the courts must seekto maintain the appropriate balancebetween the fed and pro heads of powerFirearms Reference

Living Tree Doctrine : doctrine of interpretation that says a constitution is

organice an dmust be read in a broad andprogressive manner as to adapt to thechanging times. ( Persons Case )Double Aspect Doctrine : applied relativelyinfrequently.

R v Morgentaler

Facts: M. announced he would open a private

abortion clinic in N.S. The NS legislaturepassed an Act and 2 regulations (marchregulations) in order to prevent the opening.The March regulations: prohibitedprivatization of certain medical services,regulated certain medical services; disallowsinsurance reimbursement for personsreceiving such services; provides a penalty.M. opened his clinic and performed abortionsand was subsequently charged.

Issue: Distribution of Powers, was thislegislation ultra vires of the provinces powersunder ss 91(3), 91(13), 91(16), did it fallunder criminal law s91(27), thus parliamentsjurisdiction?Held: the Act was criminal in pith andsubstance and thus ultra vires the province.

Reasoning:1. Pith and Substance:a) The Legal Effect:

how will the legislation affect the rightsand liabilities of those subject to it?

not restricted to the Four Corners: canlook beyond to determine the social oreconomic purpose the statute hopes toachieve.

use of extrinsic material is permitted. Hansard is admissible, but should be

used cautiouslyb) The Practical Effect:

more difficult to predict than legaleffect, therefore less secure status inconstitutional analysis

purpose is to demonstrate an ultra virespurpose by revealing that one party islegislating in matters outside theirjurisdiction

Application of the Facts: Medical Service Act s6 creates an offence

subject to fines s5 denies public health coverage s7 provides injunctive relief against

violation of its terms s2 states is purpose to prevent privatization

of medical service wording is a duplication of the Criminal

Code Provision s251 (omitted section) the course of events: the timing of the bill Hansard: clearly stated in parliamentary

debate that the province sought toeliminate possibility of abortion clinicopening

Provincial Objectives: health and safety of women (no

evidence that clinics have lowerstandards)

government didnt express concernabout privatization regarding thislegislation until the second readingspeech

no evidence or prior study orconsultation regarding cost-effectiveness or quality or medicalservices delivered in private clinics

if policy was to prevent surgery outsidea hospital, the legislation would havejust done so.

2. Assigning to a Head of Power in this case criminal: PP&PP dominant purpose was to restrict abortions

as a socially undesirable practice thatshould be suppressed or punished.

Doctrine of Colourability : even though thelegislation claimed the Act was about health


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care the extrinsic material suggestedotherwise. Courts will look to the purpose of the legislation. They will look to not what thelegislation is saying, but what the actors aresaying. Legislating in the provincial/federaldomain (outside your jurisdiction).Doctrine of Severance : severance isavailable where the remaining good part canservice independently and would have been

enacted by itself ( Alberta Bill of Rights Case ).Infrequently applies in distribution of powercases.

Division of Powers:

Reference re: Employment InsuranceFacts: The CofA found s22 &23 of theEmployment Insurance Act to beunconstitutional and was referred to theSupreme Court.

Issue: Division of Powers: Do sections of theEmployment Insurance Act encroach uponprovincial legislative power in property andcivil rights s92(13) or local matters s92(16)?

Held: Parliament was within its jurisdictionover unemployment insurance under thehead 91(2A).

Reasoning:1. Pith and Substance Purpose of Maternity: to provide women in

this position with income replacement

benefits Effect of Maternity: goes beyond initial aimand can be used to assess its constitutionalvalidity.

Primary Effect: to replace part of womens employment income

Secondary Effect: to enable them toprepare for childbirth, recover and havea period to care for families.

The secondary effect does not divertfrom parliaments intention just becauseit is there.

2. Identification of Head of Power Double Aspect Doctrine : s91 and s92 are

not watertight compartments. It is possibleto have overlapping federal and provinciallegislation.

the power of one level of government tolegislate in relation to one aspect of amatter takes nothing away from thepower of the other level to controlanother aspect within its ownjurisdiction. ( Hodge v The Queen;Citizen Insurance Co of Canada v Parsons )

Living Tree Doctrine : even a progressiveapproach cannot justify Parliamentencroaching on a field of provincialjurisdiction.

When a specific power has been detachedfrom a more gradual power, the specificpower cannot be evaluated in relation tothe general power because any evolution inrelation to the general power because anyevolution would then be regarded as anencroachment.

In constitutional interpretation the essentialelement of a power are determined byadopting a generous reading of the wordsused taken in their strict legal context.

Maternity Benefits as an Insurance Measure:Brooks V Canada Safeway: pregnancy is nodifferent from any other health-relatedreason or absence from the workplace andtherefore an insurable risk. If it is an insurablerisk in the private sphere, it out to be in thepublic sphere as well.

New kinds of benefits must be interpretedliberally: ( Attorney General of Canada v Silk;Dick v Deputy Attorney General of Canada )

Argument by Attorney General of Quebec:that pregnancy cannot be characterized as anunemployment situation because pregnantwomen are not capable and available forwork.

Rebuttal: the obligation under theEmployment Insurance Act, to be capable of working is regarded as a mechanism forscreening applicants and providing incentivesto return to work. Being unavailable foremployment is sometimes unrealistic(seasonal workers).

Division of Powers: Trade andCommerce:

Citizen Insurance Company v Parsons(Privy Council: Sir Montague Smith)

Facts: Parsons store burnt down and he wasrefused insurance benefits because of acontractual term that violated Ontarios Actto Secure Uniform Conditions in Policies of Fire Insurance. Citizens argued that Act wasultra vires violating 91(2), which givesRegulation of Trade and Commerce toParliament. However, 92(13) gives Provincesjurisdiction of Property and Civil Rights.

Issue: Was the insurance regulation part of s91(2) Regulation of Trade and Commerce or92(13) Property and Civil Rights? Whatdistinguishes Regulation of Trade andCommerce from Property and Civil Rights?

Held: s92(13), Ontario government couldlegislate insurance matters.

Reasoning:TEST for Provincial Legislation:


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1.Does the Statute fall within any of theclasses and subjects enumerated in s92?(if it doesnt then it is invalid)2. If the statute falls under s92: does thatstatute ALSO fall under any of the classesof subjects enumerated in s91?

Trade and Commerce: is too broad andcannot be read in its ordinary and natural

meaning

Branches of Trade and Commerce:1.Foreign Trade2.Interprovincial Trade3.General Trade (whole domain)

Parliament has jurisdiction over generaltrade

Provincial legislatures have jurisdiction of specific trades

General Motors of Canada v City National LeasingFacts: CNL sued GM for anti-competitivebehaviour. CNL alleged that the CombinesInvestigation Act (which allows one companyto bring civil action for uncompetitivebehaviour) was ultra vires ParliamentsJurisdiction.

Issue: Is the Combines Investigation Act within Parliaments jurisdiction to enact unders 91(2) Trade and Commerce (under theParsons General Branch); or is it withinProvincial jurisdiction under s92(13) Propertyand Civil Rights?

Held; it is intra vires the Parliament, Tradeand Commerce, under the general branch.

Reasoning:Dicksons 5 point Test to determinevalidity under General Trade and CommercePowers s 91(2)

6. is the legislation part of a generalregulatory scheme?7. the scheme must be monitored by thecontinuing oversight of a regulatory agency 8. the legislation must be concerned withtrade as a whole rather than with aparticular industry

9. the legislation should be of a naturethat the provinces jointly or severallywould be constitutionally incapable of enacting10. the failure to include one or more provinces or localities in a legislativescheme would jeopardize the successfuloperation of the scheme in other parts of the country.

necessary to consider the impugnedprovision and the Act as a whole whenundertaking a constitutional analysis.Factors to consider are:

to what extent does the impugnedprovision intrude into provincial powers?

if its pith and substance is federalprovision, and if the act to which it is apart of is a constitutionally valid act, orif it is attached to a severable andconstitutionally valid part of the act thenit is valid federal law.

can the provision be constitutionallyjustified by reason of its connection withvalid legislation?

in determining the proper test, bear inmind that each level of government willimpact occasionally on the sphere of another level of government: thereforethe test cannot be too strict.

how far one can intrude is a matter of pith and substance.

Application:

1. the court must determine whether theimpugned provision can be viewed asintruding on provincial powers, and if soto what extent?2.the court must establish whether theact (or a severable part) is valid3. In cases under General Trade andCommerce s91(2) this will normallyinvolve finding the presence of aregulatory scheme and then ascertainingwhether that scheme meets therequirements in Vapour Canada andCanadian national Transportation (above)

if scheme is not valid, this is the end of tineinquiry

4. If scheme is valid, the courts must thendetermine whether the impugnedprovision is sufficiently integrated withthe scheme that it can be upheld byvirtue of that relationship; this requiresconsidering the seriousness of the

encroachment on provincial powers(integration test)5.If it passes the integration test, it isintra vires Parliament under the GeneralTrade and Commerce Power. If it is notsufficiently integrated into the scheme of regulation, it cannot be sustained underthe second branch of s91(2).

Government of Saskatchewan v Rothmans Benson and HedgesFacts: Federal Law s30 of the FederalTobacco Act allowed retailers to displaytobacco products and accessories, ProvincialLaw s6 of Tobacco Control Act bannedadvertising, display and promotion of tobaccoproducts in any premise where a personunder 18 is present.

Issue: Division of Powers: is the ProvincialStatute sufficiently consistent with theFederal Act.


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Held: the federal law was not granting apositive entitlement to display tobaccoproducts. Therefore, enforcing the prohibitionon the display is within provincial jurisdictionbecause it doesnt frustrate the federalpurpose. It is therefore, possible for retailersto comply with both laws.

Reasoning: Purpose of Federal Tobacco Act:

legislate a response to national public healthconcern, to protect young persons frominducement to use of tobacco, protect thehealth of young people by restricting access,enhance public awareness of health hazards.

Doctrine of Federal Legislative Paramountcy:when a Federal and Provincial Law deal withthe same subject matter, the federal law willprevail.Test 1: the courts will only find aninconsistency where there is an expresscontradiction such that compliance with onewould breach the other.Test 2: does the provincial law frustrate thepurpose of the a federal law? provincial lawscannot operate where they frustrate thepurpose of the federal law.

Division of Power: Criminal Law

RJR MacDonald v Attorney General of CanadaFacts: the Tobacco Product Control Act prohibits: the advertising and promotion of tobacco products; selling tobacco withoutlabel warning of health risks associated withsmoking and listing toxic ingredients; DoesNot prohibit the sale distribution or use of tobacco products. The Supreme Court of Quebec found it was ultra vires Parliamentspowers; the Court of Appeal in Quebecoverturned the decision finding it Intra vires.

Issue: Did Parliament have jurisdiction underPOGG s91 or Criminal Law s91(27)?

Reasoning:Valid Criminal Law: principles laid out inMargarine Reference Case

1.prohibit2.penal consequence3.public purpose: public peace, order,

security, health and moralityPrinciples: criminal law isnt frozen in time, it is within

Parliaments jurisdiction to regulate newissues as criminal law

a area that has not traditionally beencriminal, does not preclude Parliament fromlegislating

Parliament can criminalize an activityancillary to the evil itself: ie. ProstitutionReference Case; Rodriguez (assistedsuicide)

Parliament can choose a circuitous path:the Method matters not, it is the Pith andSubstance that matters in a division of power analysis

Criminal laws can contain exemptions: ie.Lord Day Alliance of Canada v Attorney General; Morgentaler v The Queen

Health is valid under criminal law becauseof its amorphous nature: Scneider v TheQueen

Held leg was supportable under federal lawpower therefore intra vires FEDERALjurisdiction.

Reference re Fire Arms ReferenceFacts: Parlilament amended the CriminalCode by enacting the Firearms Act whichrequired firearms holders to obtain licencesand register their guns. The Albertagovernment argued that Parliament was

legislating in its jurisdiction under Propertyand Civil Rights s92(13); Parliament argued itwas vlid Criminal Law s91(27). The CofAfound that Parliament was intra vires.

Issue: Was Parliament ultra vires by enactingthe licencing and registration provision in theFirearms Act ? or would it fall under Propertyand Civil Rights?

Held: Pith and Substance of the provision wasto enhance public safety through prohibitionsand penalties The regulatory aspects aresecondary, the intrusion into property andcivil rights is not so excessive as to upset thebalance of federalism.

Reasoning: Pith and Substance: establish from extrinsic

material. Parliament is ultimate judgeregarding effectiveness of method.

Language of Act sounds Regulatory: look to pith and substance of the Act

(via extrinsic material), look to mischief Act is trying to prevent

Purpose of the Legislation and Traditionof Gun Control: Act conforms withhistorical public safety and gun control.Eventually all gun owners will berequired to be licenced - public purpose.

Onus on challenger (Province) to prove thatact doesnt fall within the jurisdiction of theother party (Parliament)

There will always be overlap in jurisdictions

in a Federal System (GM v CNL) is subject matter traditionally criminal?

(Morgentaler, RJR MacDonald ) Criminal Laws can be complicated direct and total prohibition is not required in

criminal law ( RJR MacDonald ) parliament can use indirect means of

dealing with public safety


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regulatory scheme: big difference betweenguns and automobiles

The challenging party (Alberta) must showthat that there was an undue intrusionwhich consequently upset the balance of federalism. It failed:

guns are property; but not necessarily inpith and substance provincial

the Act doesnt prevent the provincefrom regulating the Property and CivilRights aspect of guns

Province can regulate: hunting,establishing municipal boundaries, andother areas of firearms

no colourable intrusion here criminal law isnt confined to moral areas

Division of Power: POGG

Reference re Anti-Inflation Act Facts: The Anti-Inflation Act established a

system of prince, profit and income controls.The act applied to certain private companiesand professions, the federal public sector andthe provincial public sector if Provincesagreed (which they did). The Unionschallenged this and a reference was sent tothe Supreme Court.Issue: is the Anti-Inflation Act ultra viresbecause it affects areas within provincialjurisdiction?Held: The Act is valid under the Emergencybranch of the POGG.Reasoning: In an Emergency, the federal

government can affect areas within provincialjurisdiction.

Laskin: Considered 4 questions to determineif an Act is valid under the Emergency Prongof POGG1. Does the Act contradict the Federalcontention because it didnt apply to allinstitutions and people in Canada (generalprovision)

the coverage was comprehensive except theprovincial public sector, which had an opt-inoption. Agreement of the 8 provinces hadbeen secured, thus this provision was notseen as an indication of a lack of urgency.2.Is the Federal Contention assisted by thepreamble?the preamble was considered sufficientlyindicative and clear that Parliament was

introducing a program based on what it sawas a serious national concern.3. Does the extrinsic evidence indicate therewas a rational basis for the Act as a crisismeasure?what matters is that parliament had a rationalbasis to decide if there was an emergencyand how to respond, the judge cannotsubstitute his own judgment.4. Are there other areas of federal authoritythat legitimize the Act?Yes, inflation is a monetary policy which iswithin federal jurisdiction

Therefore, so long as the above conditionsare meet, the federal government can justifylegislation as a national emergency.National Emergencies are not restricted toWartime.supported if rational basis to support viewthat emergency exits;there needs to be an emergency (challengermust prove there is no emergency)POGG is temporary legislation because itoverrides/suspends the constitution -therefore overrides provincial powers.Preamble: WHEREAS the Parliament of Canada recognizes that inflation in Canada atcurrent levels is contrary to the interests of all Canadians and that the containment andreduction of inflation has become a matter of serious national concern.

Dissenting: Beetz

containment and reduction of inflation isnot a new matterthe primary effect of the Anti-Inflation Act isProperty and Civil Rightsinflation is too broad a power to giveparliament, it would obliterate provincialpower of Property and Civil Rights*The language of the Act was not clearenough to express an emergency.

if Parliament is going to legislate, infringingon provincial rights, under the emergencybranch of POGG, they had best use the wordemergency.

R v Crown Zellerbach (Le Daine)Facts: CZ was dumping wood-waste intoprovincial waters. the Ocean DumpingControl Act prohibits the dumping of anysubstance at sea. The Province argued thatParliament didnt have the right to legislate.

Issue: Was the Act within Parliaments

Jurisdiction to enact?

Held: It was intra vires because marinepollution is: Single, Indivisible and Distinct(SID)

Reasoning : National concern does not equate to a

national emergency, therefore thelegislation doesnt need to be necessary

National concern applies to new matters:which may have been local or private butare now a matter of national concern.

Singleness, Distinctivness and Indivisibilitythat clearly distinguishes it from a matter of provincial concern. In this instance, theCourt found it was better to overprotectwaters than leave some water to nojurisdiction. Since pollution spreadsirrespective of jurisdiction, the matter canbe said to be indivisible.


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Provincial Inability Test : a nationaldimension would exist whenever asignificant aspect of a problem is beyondprovincial reach because it falls within thejurisdiction of another province or of thefederal Parliament. Only the aspect of theproblem that is beyond provincial controlwould fall to the federal government underPOGG

Dissenting (La Forest): questions wisdom of the policy polluting local water should not be a matter

of national concern, goes against principlesof federalism

maritime pollution fails the singleness testbecause there are other types of marinepollution that are not covered by law.

provinces should be given room to legislate.

Aboriginal Rights CL and s35

Guerin v The QueenFacts: The Indian Act s19, states that reserveland held by the Crown cannot be sold,alienated, leased or otherwise disposed of until it has been surrendered to the Crown.The Crown entered a lease agreement with agolf course under different terms than theBand agreed to. A. argued it was a breach of trust, Crown argued it was a political trust nota true trust.

Held: Crown had breached its duties, notof trust, but its fiduciary duty as it

leased land to a 3rd

party on terms lessfavourable than those promised orally toAboriginal people at time of surrender.Nature of AB title is a sui generis(unique) right w/ no equivalent.2 characteristics of A-title that make itunique:- 1) it is inalienable except to Crown & cantbe transferred to 3 rd party as it recog since

Royal Proclamation and to preventexploitation of Indians- 2) Crown has a fiduciary duty to A in that itsobliged to deal w/ surrendered land in bestinterest of AB peoples concerned.

Reasoning: duty was not a trust, rather the Crown owed

a fiduciary duty, which is the same effect as

breaching a trust. this responsibility was taken upon itself withthe Royal Proclamation

Indian Title was not granted by the RoyalProclamation, but recognized by theProclamation

Aboriginal have a personal andusufructuary right in the lands theytraditionally occupy

Aboriginal have aright to occupy andpossess certain land, but the ultimate titleis the Crowns

under the agreement of the Proclamations(or where under taken unilaterally) oneparty has an obligation to act on behalf of another, and that obligation carries with itdiscretionary power, the empowered partybecomes a fiduciary.

Equity will supervise the relationship When the Indian Band surrenders its

interest in the land to the Crown, thefiduciary obligation takes hold

the fiduciary duty is sui generis The Crown breached its fiduciary duty by

ignoring oral terms the oral representations are the backdrop

against which the Crowns conduct in itsfiduciary duty must be measured

it was unconscionable for the Crown toignore the oral terms

this leads to the doctrine of promissory orequitable estoppel

R v Sparrow

Facts : Sparrow allegedly violated FisheriesAct by fishing with a net that was too long.Issue : s35(1): did Parliament have the powerto regulate fishing by s35(1)?Reasoning:Interpretive Tools: existing aboriginal rightsrights must be interpreted flexibly to permittheir evolution over time. Aboriginal Rightsare not frozen rights under s35(1).

Crown failed to discharge its burden of proving extinguishment - right still existsregulation is not extinguishment: governmentcan regulate as long as regulation is keepingwith s35(1)1982, aboriginal rights became entrenched,and can only be extinguished if it passes thetestTEST for Extinguishment: the Sovereignsintention must be clear and plain if it is toextinguish an aboriginal right.Onus: of proving the Sovereign intended toextinguish aboriginal title lies on the

respondent. Intention must be clear andplain.Aboriginal Rights may be exercised in acontemporary manners35(1) must be construed in a purposive way:when the purpose of the affirmation of aboriginal rights are considered, a general,liberal interpretation of the words in theconstitutional provision is demanded.Treaties and statutes relating to Indiansshould be liberally construed and doubtfulexpressions resolved in favour of the Indians.Nowegijick v The Queen; R v AgawaThe honour of the Crown is involved in theinterpretation of Indian treaties: fairness tothe Indians is a governing principle.No appearance of sharp dealings should beinvolved on behalf of the government R vTaylor and WilliamsLegislation that effects aboriginal rights willbe valid if it meets the test for justification.


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Test:1. Does the legislation in question interferewith an existing aboriginal right?is it an aboriginal right? - go to Van Der Peetif it does interfere, it represents prima facesinfringement. Evaluate:is the limitation unreasonable?does the regulation impose undue hardships?what is the aboriginal' preferred means of

exercising that right?Onus: of proving infringement lies on theparty challenging the legislation2. If interference is found: then apply Test of Justification: what constitutes legitimateregulation of an aboriginal right?is there a valid legislative objective?Valid purpose: conservation/management of natural resources; preventing an exercise of aright that would harm the general populaceor aboriginal people themselves.3. If valid legislation is found: part two of Testof Justification: The honour of the Crown is at

steak and must be the first consideration indetermining whether the legislation or actionin question can be justified.priorities: (i) conservation (ii) Indian fishing(iii) non-Indian commercial fishing or (iv) non-Indian sports fishing;the burden of conservation measures shouldnot fall primarily on the Indian fishery.Sparrow Test:was the applicant acting pursuant to anaboriginal right?has right been extinguished?has the right been infringed?is infringement justified (two part test)?

HELD govt of Cda has a fiduciary rel w/ Asunder s35 of CA of 1982, any denial of ARmust be justified & AR must be given priority AR such as fishing are protected under s35& cannot be infringed upon w/outjustification. If AR are extinguished, theremust be a clear & plain intention to

extinguish a right to fish. Sparrow found tobe exercising an inherent ABORIGINALRIGHT that existed prior to provincialleg and was guaranteed and protectedby s35 of CA.

R v Van der Peet

Facts: Dorothy Van der Peet was chargedunder the Fisheries Act for selling fish withan Indian food fish licence, contrary to theBritish Columbia Fishery (General) Regulation

In defining s35(1) , the courts must take thepurposive approach:

1. ensures that the provision is not viewedas static and only relevant to thecircumstance; what the provisionrecognizes and affirms is consistent withthe fact that what it recognizes andaffirms are rights.2.needs to be analyzed in the light of theinterest it was meant to protect.

Interpretive Principles: s35(1) should be given a generous and

liberal interpretation in favour of aboriginalpeople

the Crown has a fiduciary duty to aboriginalpeople: because the honour of the Crown isat stake, and therefore generous and liberalinterpretations must be given.

the fiduciary relationship means that where

there is doubt or ambiguity it must beresolved in favour of the aboriginal.

Purposive Analysis of Section 35(1): s35 did not create the legal doctrine;

aboriginal rights existed and wererecognized under the common law. ButParliament could extinguish or regulatethose rights at any time. Subsequently, s35aboriginal rights cannot be extinguished

and can only be regulated or infringedconsistent with the justification test laid outin sparrow.

the purpose of s35 is: 1) the means bywhich the constitution recognizes the factthat prior to the arrival of the Europeans,the land was already occupied 2) the meansby which that prior occupation is reconciledwith the assertion of Crown sovereignty

over Canadian territory.

Test for Identification of Aboriginal Rights inSection 35(1): integral to a Distinctive Culture Test In order to be an aboriginal right an activity

must be an element of a practice, customor tradition integral to the distinctiveculture of the aboriginal group claiming theright.

Factors to be considered: the perspective of the aboriginal

peoples to be integral the practice, custom ortradition must be of central significance

those which have continuity , existedprior to contact

rules of evidence must be approached inthe light of evidentiary difficultiesinherent in aboriginal rights

aboriginal rights need to be argued on aspecific not a general basis

Integral to a Distinctive practice: doesntmean the practice, custom or tradition isunique to that society

Held Van der Peet was charged w/selling fish but held to be a custom thatwas not integral to her distinctiveculture AB fishing rights did NOTextend to commercial selling of fish. So,she had no right so if you cannot proveexisting AR, stop there!


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TREATIES!

Aboriginal Treaty Rights - necessariesR v Marshall No. 1 Treaty rights Facts: the appellants from the MikmaqIndians, were fishing for eels in Nova Scotia.They caught 436 llbs which they sold for$787.10. The Mikmaqs had been sustainingthemselves in part through harvesting eel

since europeans first visited. The Appellantwas charged with : 1) the selling of eelswithout a licence 2) fishing without a licence3) fishing during closed season with illegalnets. (Was he in contravention of 3issues?)The Appellant argued they have aright to harvest eel based on a treaty right agreed to by the British Crown in 1760.Issues: oral terms and implications of thetrade clause within the document (treaty).Reasoning:1 .Starting Point in Treaty Right Analysis :Examining specific words used in written

document problem here is that numerous documents

were prepared/signed with the intent toassimilate them into one document whichnever happened. some documents aremissing.

trial judge was satisfied that the applicablewritten terms were found in Treaty of Peaceand Friendship

treaty rights: limited to securingnecessaries, the agreed facts support thathe was exercising his rights for the purposeof necessaries

the so-called trade-clause is framed innegative terms as a restraint on the abilityof the mikmaq to trade with non-government individuals - however in theview of the SCC, the treaty rights arelimited to securing necessaries =equivalent to moderate livelihood, and donot extend to an open ended accumulationof wealth

Evidentiary Sources: SCC rejected narrow approach to extrinsic

evidence because: 1) parole evidence ruledoesnt purport to exclude evidencedesigned to determine whether or not anagreement had been reduced to writing 2)extrinsic evidence of the historical andcultural context of a treaty may be receivedeven absent any ambiguity on the face of

the treaty 3) it would be unconscionable forthe Crown to ignore oral terms while relyingon written terms ( Guerin )

When considering a treaty, Courts musttake into account the context in which thetreaties were negotiated, concluded andcommitted to writing.

generous rules of interpretation shouldnot be confused with after-the-fact largesse

1760 Negotiations: evidence demonstrates an inadequacy and

incompleteness of the written memorial of

the treaty terms the trade document would not have servedeither parties objectives unless the mikmaqwere assured of continuing access,implicitly or explicitly, to wildlife trade

disappearing treaty rights does not dojustice to the Honour of the Crown or theMikmaq people: effect must be given to the1760 Common Intent.

2. Ascertaining the Terms of the Treaty :is the written Document complete? If no, thenascertain the treaty terms by reference tofragmentary historical record and experthistorians, and also by the stated objectivesof the British and the Mikmaq, what were the objectives: Officious by-

stander test: what were the implied termsof the contract?

In Justice Binnies view, the written Treatywas not limited to terms of documentexecuted on March 10, 1760 as he felt it didnot reflect all TERMS agreed to by parties.

He relied on a written document that setout an account of a meeting that had takenplace weeks before the 1760 treaty whichindicated earlier meetings, the Brits hadagreed to establish a truck house/tradingpost w/ necessaries in exchange for theirpeltry.

Rights of Other Inhabitants: the negativerestrictions in the treaty effectively turned

the mikmaq into a citizen minus. the Appellant only needs to prove rightsThe Honour of the Crown: is at stake whendealing with aboriginal people. interpretation that turns a positive trade

demand into a negative covenant isntconsistent with the honour of the Crown:trade agreement must be interpreted in amanner that gives meaning an substance tothe promises made by the Crown.

Contradictory Interpretation of theTruckhouse clause: appellant claims breachsince 1762 when truckhouses were abolished,or 1780 when traders were abandoned. treaties need to be interpreted in a flexible

way that accounts for the evolution of change in normal practice.

Common Intention: access necessariesthrough trade in wildlife.

where a right is granted, there must bemore than the disappearance of themechanism to extinguish it.

the surviving right is to continue to obtainnecessaries through hunting and fishing.

Limited scope of Treaty Rights: Crownargues : recognition of this right would openfloodgate (exploitation of national resources) necessaries = not a right to trade generally

for economic gain but a right to trade fornecessaries. Necessaries = a moderatelivelihood.

Application of Facts to the Case: test of infringement under s35(1 ):

Sparrow: (1) is the limitation unreasonable?


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(2) does the regulation impose unduehardship? (3) does the regulation deny tothe holders of the right their preferredmeans of exercising that right?

the onus of proving a prima facieinfringement lies on the individualchallenging the legislation.

the ability to exercise these rights were atthe discretion of the Minister (licensing)

because the Crown assumed this treatyright did not exist

However, the Maritime Provinces FisheryRegulation and Fishery (General)Regulations do prima facie infringe theappellants treaty rights under the Treaties1760-61 and are inoperative against theappellant unless justified under the Badgertest.

the appellant fishing during close seasonand with improper nets, Maritime ProvincesFishery Regulation, is also prima facie

infringement.Principles: the courts have not applied strict rules of

interpretation to treaty relationships R. v.Denny

treaty rights are limited to securingnecessaries (which I construe in a moderncontext, as equivalent to a moderatelivelihood), and do not extend to the open-ended accumulation of wealth.

when considering a treaty , a court musttake into account the context in which the

treaties were negotiated, concluded andcommitted to writing. The treaties, aswritten documents, recorded an agreementthat had already been reached orally andthey did not always record the full extent of the oral agreement Badger

a treaty must not be interpreted in theirstrict technical sense nor subjected to rigidmodern rules of construction.

when interpreting a treaty the Courtsobligation is to choose from among thevarious possible interpretations of thecommon intention at the time the treatywas made the one which best reconciles theaboriginal peoples interest and those of theBritish crown.

For freedom (a right) to have real value andmeaning it must be possible to exercise it

somewhere Sioui treaty provisions should be interpreted in a

flexible way that is sensitive to theevolution of changes in normal practiceSimon

HELD Donald Marshalls catching &selling of eels was valid under 1760 &1761 treaties btwn aboriginals &colonial govt & that any licensingsystem or regulatory prohibitions wouldinfringe the treaty right. WITHIN DAYS OFDECISION, other fishing comm. Freaked, it

was dangerous, this opened up floodgateswhere Natives were fishing in areas wherenon-natives had a licence and needed one.(what was novel about this case the factthat the Ct was willing to imply a term into aTreaty to render effective a right that was notpart of the Treaty itself. Moreover, theapproach invites litigants to argue thereal treaty is the understanding of theparties as reflected in contextunderlying the negotiations as opposedto written doc itself.)

R v Marshall No 2 about how regulation &conservation is valid to regulate treatiesMisconceptions about Sept 17, 1999:Marshall No 1 so Nova ScotiaFishermans associ asked SCC to justifyand clarify what was said in No. 1The court DID NOT hold that: treaty right cannot be regulated mikmaq are guaranteed open season in the

fisheries

natives and non-natives were subject tounilateral regulatory authority of thegovernment

the appellant had a right to gatherThe majority did hold: affirmed that s35 aboriginal treaty

rights are subject to regulation:subject to justif ication(conservation/public importance)

the treaty right was to continue toobtain necessaries through huntingand fishing by trade, subject tojustification under the Badger test

Issues:1. Whether the Appellant is entitled to havebeen acquitted on a charge of unlicensed saleof fish in the absence of a new (or further)trial on the issue of whether that regulation isor can be justified by the government of Canada. it was held that the treaty right was always

subject to regulation.2. whether the Appellant is entitled to havebeen acquitted on a charge of out-of-seasonfishing in the absence of a new (or further)trial on the issue of whether that regulation isor can be justified by the government of Canada Crown has the onus of establishing the

factual elements of the offence, onus thenis on the accused to demonstrate that s/hewas a member of the community to whichthe treaty describes

Treaty rights belong to communities notindividuals

regulation for conservation is alwayspermitted

treaty rights can evolve, but their subjectmatter cannot be transformed

consultation and negotiation should be usedto balance the protection of treaty rightsand right to regulate; if no agreement is


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reached then the courts will resolve pointsof conflict

3. whether the government of Canada haspower to regulate the exercise by Mikmaqpersons, including the Appellant, or theirtreat right to fish through the imposition of licensing requirements the government has the right to regulate:

as per the Badger test (justification)

the justification for licencing depends onfacts4. whether the government of Canada haspower to regulate the exercise by Mikmaqpersons, including the Appellant, of theirtreaty right to fish through the imposition of closed seasons closed season is regulation directed at

conservation: which is sufficient justificationto regulate aboriginal rights

5. In any event, what is the scope of regulatory power possessed by thegovernment of Canada for purposes of regulating the treaty rights too broad to be answered Badger Test:

is there valid legislation? (objective of parliament in authorizing it, valid?)

if there is valid legislation, part 2 of justification test, Honour of the Crownmust be the first consideration indetermining whether legislation can bejustified

further questions may arise dependingon the circumstances: has there been as

little infringement as possible? in faircompensation is available? was thereconsultation with the aboriginal groupregarding the conservation measurebeing implemented? this is not an

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