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Do Consumers Really Benefit from the Federal Paramountcy Doctrine? A Critique of Director of Criminal and Penal Prosecutions v Telus Communications Inc.


On June 11, 2020, the Quebec Superior Court released its judgment in DCPP v Telus, confirming the validity, applicability and — for the most part — operability of many provisions of the Quebec Consumer Protection Act applying to wireless service contracts. However, the Court concluded that sections 214.7 and 214.8 of the Consumer Protection Act, which set a limit on the early cancellation fees that may be charged to consumers by wireless service providers, were in conflict with the CRTC Wireless Code for certain types of contracts and therefore inoperative. The analysis in this comment suggests that the Court’s application of the doctrine of federal paramountcy is far from a victory for consumers. This comment begins with an overview of the federal and provincial regulations applying to wireless service providers, and of the framework of division of powers used to determine how these two different sets of rules interact with each other. It then provides a summary of the reasons given by the Court of Quebec and the Quebec Superior Court. Finally, it discusses the Court’s analysis and conclusions, focusing on its application of the federal paramountcy doctrine and its impact on the protection afforded to consumers in their contractual relations with telecommunications carriers. It concludes by explaining how the Court’s solution to resolving conflicts between the federal Wireless Code and the provincial Consumer Protection Act actually deprives consumers of specific procedural benefits and more generous remedies.

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* Doctoral candidate at McGill University Faculty of Law, Vanier Scholar and lawyer at Woods LLP. The author is grateful to her thesis supervisor, Professor Johanne Poirier, and her colleagues Gabriel-Arnaud Berthold and Edward Bechard-Torres for their very helpful comments and suggestions on earlier drafts of this paper. The statements and opinions expressed in this paper represent the views of the author and do not represent the views of Woods LLP.

Constitutionalism and the Genetic Non-Discrimination Act Reference


In the July 10, 2020 decision in Reference re Genetic Non-Discrimination Act (GNDA Reference),1 the Supreme Court of Canada arrived at a complex three-to-two-to-four outcome, with a slim five-justice majority in two separate judgments upholding challenged portions of the federal Genetic Non-Discrimination Act (GNDA)2 as a valid exercise of Parliament’s criminal law power. The legislation, which some thought fundamentally oriented to the goal of preventing genetic discrimination, seemed to have attractive policy objectives, though we will ultimately suggest that the form of the legislation was not entirely in keeping with these aims. While it may have appeared pragmatically attractive to uphold the legislation, we suggest that the majority’s decision to do so comes at great cost to basic federalism principles, to legal predict-ability, and to prospects for well-informed intergovernmental cooperation. We argue that the courts must properly confine the effects of the GNDA Reference in accordance with established principles on the treatment of fragmented judicial opinions. We also argue that the courts must take significant steps to ensure that federalism jurisprudence remains well-grounded in legal principle, without the actual or apparent influence of extra-legal policy considerations.

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*BA, MSc, JD, Member of the Ontario bar. Research Associate, University of Saskatchewan College of Law (September 2020 to December 2020 term).
**BA, JD, BCL, MPhil, DPhil, Member of the Ontario and Saskatchewan bars. Professor of Law & Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan College of Law. We are grateful for insightful comments on a draft version from Michelle Biddulph, Noura Karazivan, Jean Leclair, Carissima Mathen, Mitch McAdam QC, and Han-Ru Zhou. We also thank Richard Mailey for his helpful editorial suggestions.
[1] 2020 SCC 17 [GNDA Reference].
[2] SC 2017, c 3 [GNDA].

Volume 24.2 (2019-2020)

The Review is a subscriber-based print journal. Articles are available through HeinOnline and EBSCO. They will be available in open access on this website as of July 2021 – one year from date of publication.

Table of Contents


Review Essay

Volume 24.2 (2019-2020)

The Review is a subscriber-based print journal. Articles are available through HeinOnline and EBSCO. They will be available in open access on this website as of July 2021 – one year from date of publication.

Table of Contents


Review Essay

The 2018 Toronto Municipal Election: Judicial Failure to Protect the Structure of the Canadian Constitution


In Toronto (City) v Ontario (AG),[1] a recent decision on the legality of legislative interference in the Toronto 2018 municipal election, the Ontario Court of Appeal makes an alarming attempt to rewrite the Canadian Constitution. The subject of this revision is the legitimate role of unwritten principles in constitutional interpretation. Robin Elliot maintains, in a leading scholarly treatment of the subject, that unwritten principles can inform constitutional inter- pretation in two main ways: first, they can provide an independent basis on which to overrule impugned legislation; second, they can assist in interpreting constitutional text.[2] Elliot qualifies the former usage by limiting it to those principles that “can fairly be said to arise by necessary implication from provisions of the text of the Constitution … since they have the same legal status as the text.”[3] The Court of Appeal, however, states that unwritten principles cannot be used as a stand-alone basis on which to overrule legislation.[4]

In this article, I draw on numerous Supreme Court of Canada decisions to argue that the Ontario Court of Appeal’s view of the Constitution is, with respect, fundamentally flawed.

Unwritten principles inform the structure of a democratic constitution and thereby provide legislation with its claim to legitimacy. Legislation that violates foundational unwritten principles is, of necessity, subject to judicial challenge. I also argue that the Court of Appeal’s doctrinally unsustainable approach to unwritten principles led to a flawed ruling on the legality of Ontario’s interference in the 2018 Toronto election. In Reference re Senate Reform, the Supreme Court of Canada unanimously states that “constitutional interpretation must be informed by the foundational principles of the Constitution.”[5] The Court of Appeal failed to provide any detailed consideration of the democratic principle, and thereby failed to recognize the constitutional imperative that protects the integrity of the electoral process.

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[1] 2019 ONCA 732 .

[2] “References, Structural Argumentation and the Organizing Principles of Canada’s Constitution” (2001) 80 Can Bar Rev 67 at 83-86, 141-42, and generally 86-98.

[3] Ibid at 95. See also 83-84.

[4] Toronto v Ontario (CA 2019), supra note 1 at para 89.

[5] 2014 SCC 32 at para 25 .

Volume 24.1 (2019) Review of Constitutional Studies / Revue d'études constitutionnelles

Special Issue: Treaty Federalism

Co-Editors: Joshua Nichols & Amy Swiffen
The implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) offers a way to re-imagine what Indigenous self-determination and reconciliation might mean in Canada and elsewhere. It makes it possible to speak of Indigenous peoples as nations within a multinational democratic federation, rather than minority populations within a state. The papers in this issue, which were delivered at a Workshop held at the University of Alberta in May 2019, explore ‘treaty federalism’ which is a re-imagining of what we understand as sovereignty and the foundation of the Canadian state.

Table of Contents

• UNDRIP, Treaty Federalism, and Self-Determination
   Michael Asch

• UN Declaration on the Rights of Indigenous Peoples and Treaty Federalism in Canada
   James [Sa’ke’j] Youngblood Henderson

• Indigenous Peoples and Interstitial Federalism in Canada
   Robert Hamilton

• Constitutional Reconciliation and the Canadian Charter of Rights and Freedoms
   Amy Swiffen

• Legal Pluralism and Caron v Alberta: A Canadian Case Study in Constitutional Interpretation
   Ryan Beaton

Book Reviews
• John Borrows, Larry Chartrand, Oonagh E. Fitzgerald, and Risa Schwartz, eds, Braiding
   Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous
   Peoples, (Centre for International Governance Innovation (CIGI), 2019)
   Nigel Bankes 

• John Borrows, Law’s Indigenous Ethics, (University of Toronto Press, April 2019)
   Ferdinand Gemoh

The Review is a subscriber-based print journal. Articles are available through HeinOnline and EBSCO. They will be available in open access on this website as of December 2020 - one year from date of publication.

Volume 29.2 (2020) Constitutional Forum constitutionnel

Special Issue: The Campus Speech Issue

Guest Editors: Kate Bezanson and Alison Braley-Rattai
Includes articles by experts in the field who provide valuable insights into the many political and constitutional dimensions of free speech on university campuses.


Introduction: Symbolic Politics, Constitutional Consequences
Kate Bezanson and Alison Braley-Rattai

Compelling Freedom on Campus: A Free Speech Paradox
Jamie Cameron

The Politics of Campus Free Speech in Canada and the United States
Stephen L. Newman

Universities, the Charter, Doug Ford, and Campus Free Speech
James L. Turk

Academic Freedom, Canadian Labour Law and the Scope of Intra-Mural Expression
Michael Lynk

Un-Chartered Waters: Ontario’s Campus Speech Directive and the Intersections of  Academic Freedom, Expressive Freedom, and Institutional Autonomy
Alison Braley-Rattai and Kate Bezanson

Full Issue