Separatism

‘Separatism’ may generally be understood as the desire to establish a politically independent Quebec. This desire to break away from Canada and create a separate state is a contemporary phenomenon, born of the waves of social and political change that swept through Quebec in the 1950s and 1960s. The separatist threat has been the catalyst for Canada's constitutional debates and it is ironic that the Constitution Act, 1982 did not accommodate any of Quebec's traditional constitutional demands.

Throughout its history, ‘separatism’ has been chameleon-like. For some of its proponents it has meant outright independence, the severing of all ties with Canada. Others have equated it with sovereignty-association (see partnership), political sovereignty plus the maintenance of an ongoing economic association with Canada. Some of its champions, such as the Parti Québécois (PQ), have vacillated between these interpretations of separatism over the years.

In the mid-1960s ‘separatism’ was confined to the fringes of Quebec politics. While revolutionary organizations, like the Front de Liberation du Quebec (FLQ), bombed their way onto the evening news, separatist political parties, such as Le Rassemblement pour l'Indépendance Nationale (RIN), fared poorly in provincial electoral politics. In the 1966 provincial election, the RIN could only persuade 5.4 percent of voters to endorse its independence platform.

Separatist prospects brightened with the 1968 birth of the Parti Québécois (PQ) under René Lévesque's leadership. But the growing public support for Lévesque's party, culminating in the PQ's stunning electoral victory in 1976, was realized by diluting the separatist message. First, Lévesque introduced the idea of sovereignty-association, an idea that appealed to those who were anxious about the possible negative economic consequences that could accompany independence. Then, the PQ promised not to pursue sovereignty-association unless the public endorsed that option in a referendum. Public opinion polls suggest that support for all forms of separatism is generally higher now than it was in the late 1960s. Canada’s recent history demonstrates that the language issue, specifically the status of French in Quebec, is an important fuel for ‘separatism’.

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Senate

The Senate is the Upper House of Canada’s two-house Parliamentary system. Created by the Constitution Act, 1867, the Senate was created as a place of “sober second thought” to carefully examine legislation before it becomes law. It is made up of 105 members that are appointed by the Governor General, on advice of the Prime Minister, based on regional representation and other individual requirements. Once appointed, senators hold their seats until age 75.

The Senate provides sober second thought to the House of Commons by reviewing its legislation and by creating senate committees that examine important national issues such as unemployment, land use, poverty and Aboriginal issues. The Senate may also introduce private bills and public bills that do not involve spending public money. It may also veto bills from the House of Commons, although this power is seldom used.[1] Senate committee reports often lead to important considerations in government policy or legislation. For example, in 2011 the Senate committee on Aboriginal Peoples released Reforming First Nations Education: From Crisis to Hope, advocating for a complete overhaul of First Nations education in Canada.[2] In 2014, the Senate committee on Legal and Constitutional Affairs examined amendments to the Fair Elections Act to prevent unfair campaigning.[3]

The Constitution defines the scope of the Senate’s role and powers. It states that senators are to be appointed based on regional representation and that they meet individual requirements. Twenty-four senators must be from each of Ontario, Quebec, the Maritimes and the western provinces. Six senators must be from Newfoundland and one senator must be from each territory. A senator must be a Canadian citizen and be at least 30 years old, own land worth at least $4,000 and, in the case of Quebec, own land within the province. Senators must have at least $4,000 and live in the province or territory they represent. Senators usually affiliate with a political party although some may choose to sit as independents.[4] They are also unelected.[5]

Canadians have debated the Senate’s structure and purpose since its creation, and in recent decades they have questioned its existence.[6] Many consider the Senate to be a place of unfair patronage and privilege. The Liberal government tried to reform the Senate in 1978 but they were unsuccessful. Another push failed again in the constitutional debates of the late 1980s during the Meech Lake and Charlottetown Accords. In October 2013, the Conservative government asked the Supreme Court to clarify the process of Senate reform. In Reference Re Senate, the Court ruled that major changes to the Senate require the use of the Constitution’s amending formula and that the federal government must consult the provinces.[7]


[1] Richard Foot, "Senate," The Canadian Encyclopedia (June 19, 2014), online: Historica Canada <http://www.thecanadianencyclopedia.ca/en/article/senate/>.

[2] The Standing Senate Committee, “Reforming First Nations: From Crisis to Hope,” (December 7, 2011), online: Parliament of Canada < http://www.parl.gc.ca/Content/SEN/Committee/411/appa/subsitedec2011/home-e.htm>.

[3] JM Bryden, “Senators to Recommend Changes to the Fair Elections Act, online: Canadian Press  http://www.macleans.ca/politics/senators-recommend-nine-major-changes-to-fair-elections-act/.

[4] Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[5] Reference re Senate Reform 2014 SCC 32 at para 14 .

[6] Robert A MacKay, The Unreformed Senate of Canada (Toronto: McClelland and Stewart, 1963), at 38.

[7] Senate, supra note 5 at 103.

Convention

A ‘convention’ is an uncodified rule of a constitution considered binding on political actors but not enforceable by the courts. The Constitution of Canada is comprised of both written or codified rules enforced by courts, and ‘unwritten’ rules or principles necessary for constitutional government. What separates a convention from constitutional law is that the former is not judicially enforceable. Courts may recognize the existence of a ‘convention’, and even help define its nature and scope, but they do not provide remedies for the breach of conventions.[1]

While Canada’s Constitution is most often associated with its ‘written’ documents – chiefly, the Constitution Act, 1867,[2] and the Constitution Act, 1982[3] – in fact, Canada’s full constitutional framework is unintelligible without reference to a prodigious set of constitutional conventions. Consider two examples. Nowhere in Canada’s constitutional documents is it written that the government of the day must resign when it loses the confidence of the legislative assembly. Yet, this central tenet of responsible government is at the core of Canadian constitutionalism, and a political crisis would ensue were its principles ignored by political actors.[4] Similarly, while in a strictly legal sense the Governor General may refuse his or her assent to a bill duly passed by both houses of Parliament, a constitutional convention has developed whereby the withholding of assent would be unconstitutional (see reservation and disallowance).

Conventions arise when there are precedents for a particular principle or practice; when political actors consider themselves or ought to consider themselves bound to follow the principle or practice; and when there are good reasons for the existence of the principle or practice.[5] While the core meaning of a ‘convention’ may be clear, questions of application frequently arise, and political actors may heatedly dispute what precedents apply and what reasons are legitimate. While political actors, for example, are agreed on the confidence convention, what sort of measure exactly constitutes a withdrawal of confidence may be controversial.[6]

[1] Peter W Hogg & Wade Wright, Constitutional Law of Canada, 5th ed (date accessed 30 December 2021), (Toronto: Thomson Reuters Canada), ch. 1, § 1:10. Thomson Reuters ProView.

[2] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.

[3] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[4] Marc Bosc & Andre Gagnon, ed, House of Commons Procedure and Practice, 3rd ed (Ottawa: House of Commons, 2017) ch 2, <https://www.ourcommons.ca/about/procedureandpractice3rdedition/ch_02_2-e.html>

[5] Constitutional Law of Canada, supra note 1 at ch. 1, § 1:10.

[6] For further reading, see: Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (Toronto: Oxford University Press, 1991); R M Dawson, The Government of Canada, 5th ed by N Ward (Toronto: University of Toronto Press, 1970); B Reesor, The Canadian Constitution in Historical Context (Scarborough: Prentice-Hall, 1992).

Hays-Joyal Committee

After talks among the eleven First Ministers, which commenced in 1976, failed to produce an agreement on a new Canadian Constitution, or even agreement on how to patriate the Constitution, the federal government announced its own unilateral proposals on the subject.[1] It then appointed a Special Joint Committee of the House of Commons to consult with Canadians about the proposals. Created in October 1980 and chaired by Senator Dan Hays and MP Serge Joyal, this Committee sat through 267 hours of hearings over fifty-six days, all subject to televised scrutiny.[2] The Committee’s recommendations played a part in significant amendments to the initial proposals for constitutional reform placed before it by the federal government. Some of the changes that resulted from the Committee’s hearings and recommendations included:

Notably, among the changes considered, but not included in either the Committee’s recommendations or the new Constitution were:

It has been argued that because of the invitation to the public to participate in the constitutional process, the hearings of the Committee marked the passing of a point of no return. An expectation of public consultation in the process of constitutional reform was created and would affect the ways in which future constitutional change could occur.[5]

[1] Edward McWhinney, Canada and the Constitution, 1979-1982: Patriation and the Charter of Rights (Toronto: University of Toronto Press, 2018) at 11–12, 42–49.

[2] Ibid at 49–51.

[3] Canadian Charter of Rights and Freedoms, ss 28, 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 ; Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11; McWhinney, supra note 1 at 58–60.

[4] McWhinney, supra note 1 at 58.

[5] Barbara Perry, “The role of popular mobilizations in the struggle for the Canadian Charter of Rights and Freedoms” (1995) 22 Crim L & Soc Change 183 at 188–191, 204–209; Bruce P Elman, "Altering the Judicial Mind and the Process of Constitution-Making in Canada" (1990) 28:2 Alta L Rev 521 at 531–532.

Constitutionalism

‘Constitutionalism’ is a term that is central to understanding the enterprise of adopting, interpreting and amending constitutions, including the Canadian Constitution, and yet, it is a term that is extremely difficult to define. This difficulty arises in part because of the existence of multiple constitutional traditions tied to a variety of political philosophies (liberal, libertarian, socialist); each of which views constitutions as devices that both reflect and further a particular set of political beliefs.

At its core, however, ‘constitutionalism’ embodies two basic commitments. First, constitutionalism means that a political community should be governed by some basic or fundamental rules which delineate an institutional framework within which other sorts of decisions - be they general decisions about policy, or particular decisions regarding specific individuals or entities - are made. In the liberal constitutional tradition, for example, as Stephen Holmes has argued, these rules serve both an enabling and disabling function. They serve an enabling function by creating institutions to make decisions, conferring powers upon them, and laying down rules for these institutions which allow the decisions to be made. They serve a disabling function by limiting thescope of the powers of institutions, through devices such as the separation of powers, federalism, and bills of rights. The enabling aspect of ‘constitutionalism’ cuts across many political philosophies; the disabling function of ‘constitutionalism’, for some (e.g. communitarians) is quite controversial. Second, ‘constitutionalism’ means that the framework must be stable, so as to provide an enduring set of expectations regarding the behaviour of political institutions. In the liberal constitutional tradition, the commitment to stability has been synonymous with legal constitutionalism, that is, with a constitution that is written, supreme (i.e. which prevails over conflicting law), entrenched (i.e. difficult to amend) and justiciable (i.e. enforceable in the ordinary courts). But here again, there are many political communities (e.g. the United Kingdom) which adhere to the principles of liberal constitutionalism, but whose constitutions lack some of these features.

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Secession

‘Secession’ is best understood as a process. It culminates when one geographic part of a sovereign state itself becomes a state with full sovereign powers. To do this, the government of the seceding state must exercise effective control over the territory it claims, and it must be recognized as the legitimate authority by other states in the international system.

Secessions are momentous events, as are attempted secessions. The international law governing them is not very clear, and each case is unique. However, it is generally accepted that only ‘peoples’ incapable of exercising their right of self-determination, because of oppression, have a legitimate claim for secession. Normally secessions are driven by groups within a state that are distinct from the rest of the population in terms of religion, ethnicity, and/or language; only such differences seem capable of generating the unity needed to attempt a risky secession. Most secessions are contested by the existing authorities. The usual result is civil war (as in the case of the United States, Eritrea-Ethiopia, Nigeria, and many other examples), and this is often preceded by guerrilla warfare undertaken by radical secessionists and by repression on the part of the central authorities (as in East Timor, Sri Lanka, and Chechnya). Peaceful secessions are very rare. They have occurred when central states have essentially collapsed (as with the USSR) or when federations were dualistic, so that two populations could readily dissolve their common institutions (as in the former Czechoslovakia and in the case of Norway and Sweden). In Canada, the Supreme Court of Canada has ruled that the secession of Quebec – or any other province – can occur, as long as negotiators respect the basic constitutional principles of federalism, democracy, constitutionalism and the rule of law, and the protection of minorities.

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Governor in Council

Whenever a piece of Canadian legislation, such as the Constitution, mentions the ‘Governor in Council’ this refers to the Governor General acting by and with the advice of the Queen's Privy Council for Canada.[1] In practice, this means the Governor General acting on advice given by federal Cabinet – the Privy Council’s operative branch.

The ‘Governor in Council’ has been assigned many duties, some of which include:

Lieutenant Governors represent the reigning monarch at the provincial level.[4] Their role within their respective provinces resembles that of the Governor General at the federal level.[5] For this reason, provincial legislation often refers to the ‘Lieutenant Governor in Council’. This refers to a Lieutenant Governor acting by and with the advice of his or her provincial cabinet.

 

[1] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 13, reprinted in RSC 1985, Appendix II, No 5 .

[2] Canada, “Governor in Council appointment process overview” (29 February 2016), online: <www.appointments.gc.ca/prsnt.asp?page=Process&lang=eng>.

[3] Parliament of Canada “Parliamentary Framework - General Article: Crown and Governor General” (October 2015), online: <www.parl.gc.ca/About/House/Compendium/web-content/c_g_parliamentaryframework-e.htm>; Parliament of Canada ‘Parliamentary Framework – Detailed Article: Role of the Crown and the Governor General” (October 2015), online: <www.parl.gc.ca/About/House/Compendium/web-content/c_d_rolecrowngovernorgeneral-e.htm>; Jacques Monet, “Governor General” (18 July 2012) The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/governor-general/>.

[4] Constitution Act, supra note 1 at s 58.

[5] The British Royal Family, “Canada: The Governor-General and the Lieutenant Governors”, online: <https://www.royal.uk/canada>.

Rule of Law

The ‘rule of law’ is mentioned in the preamble to the Constitution Act, 1982. It refers to no one single idea, but to a cluster of ideas. It is a term often associated with the English legal scholar Albert Venn Dicey who described the rule of law as a paramount characteristic of the English Constitution. It was comprised of three “kindred conceptions”: (1) that government must follow the law that it makes; (2) that no one is exempt from the operation of the law – that it applies equally to all; and (3) that general rights emerge out of particular cases decided by the courts.[1] According to Dicey, the last conception would provide a role for the judiciary in stemming what was called “collectivist” legislation. The English judiciary could police legislative activity “to ensure that legal change was slow paced and conservative”.[2]

The concept of rule of law emerged as an important constitutional principle in the case of Roncarelli v Duplessis.[3] The Supreme Court concluded that Quebec Premier Maurice Duplessis, could not unlawfully strip Mr. Roncarelli of his restaurant liquor licence without the proper legal authority. The Court ruled that Premier Duplessis exceeded his statutory authority when he revoked Roncarelli’s licence solely on the ground that he was a Jehovah’s Witness. According to Frank Scott, the McGill constitutional law professor who represented Mr. Roncarelli before the Supreme Court, the case stands for the proposition that “no public officer has any power beyond what the law confers upon him” or, more plainly, “that all are equal before the law”.[4]

The Supreme Court in the Reference re Secession of Quebec identified the rule of law as one of the “underlying principles” upon which Canada’s Constitution is founded.[5] The rule of law, according to the Court, guarantees the supremacy of law over persons and government, and that the exercise of public power requires a source in some legal rule.[6] At its most basic level, the Court wrote, the rule of law provides a shield for individuals from “arbitrary state action” – this is the role it performed in the Roncarelli case.[7] The Court went even further, suggesting that the ‘rule of law’, as a foundational principle of constitutional law, “may in certain circumstances give rise to substantive legal obligations.”[8] This suggests that a principle implicit in Canada’s constitutional order can override otherwise constitutionally valid acts of Parliament or the legislatures – a troubling idea for a constitutional democracy.

Others have argued that the rule of law is a constitutional principle which limits arbitrary government action.[9] This argument became prominent in the controversy over the federal government’s cancellation of a contract to privatize (to hand over from public to private hands) a terminal at Toronto’s Pearson Airport. The cancellation of the contract, it was argued, amounted to a violation of the rule of law for which a court would be empowered to intervene. Courts however, have not relied upon the rule of law to declare legislation invalid. Rather, the rule of law has required only that legislators follow the constitutionally-proscribed framework for law making.

The rule of law is now common parlance in political discourse. We see it invoked in all contexts by differing political perspectives. The British historian E.P. Thompson famously described the rule of law as being a “cultural achievement of universal significance.”[10] If the rule of law idea has such wide-spread appeal, it should not be surprising to find that it is a concept over which political contests will continue to be fought far into the future.

[1] Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 5th ed (London: Macmillan and Co, 1897) at 175-84.

[2] David Sugarman, Legality, Ideology, and the State (London: Academic Press, 1983) at 110.

[3] Roncarelli v Duplessis, [1959] SCR 121, 1959 CanLII 50 (SCC).

[4] FR Scott, Civil Liberties and Canadian Federalism (Toronto: University of Toronto Press, 1959) at 48.

[5] Reference re Secession of Quebec, [1998] 2 SCR 217 at para 49, 1998 CanLII 793 (SCC) .

[6] See also: Reference re Manitoba Language Rights, [1985] 1 SCR 721, 1985 Can LII 33 (SCC).

[7] Reference re Secession of Quebec, supra note 5 at 70-71.

[8] Ibid at para 54.

[9] See: Patrick J Monahan, “Is the Pearson Airport Legislation Unconstitutional: The Rule of Law as a Limit on Contract Repudiation by Government” (1995) 33:3 Osgoode Hall LJ 411.

[10] EP Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books,1975) at 265.

Constitutional Rights

Constitutional rights are the most highly guaranteed freedoms within a legal system. In Canada, constitutional rights can be exercised by individuals or groups against the government, or by one level of government against another; either way, constitutional rights are always held against the government. If a claimant successfully argues in court that their constitutional rights have been violated, the court may decide to fix the rights violation by issuing a remedy.

The Canadian legal system sets out individuals' constitutional rights in the Canadian Charter of Rights and Freedoms;[1] these are often called Charter rights, which are held by individuals against the Federal and provincial governments. When an individual successfully proves in court that the government has violated their Charter rights, the government must then prove that the violation is justified in a free and democratic society.[2] If the government is unsuccessful in justifying the violation of rights, then a court remedy will be issued.[3] Sometimes, the government can then choose to use the “notwithstanding clause” outlined in section 33 in order to avoid the court remedy.[4]

Some constitutional rights are held against the government by groups rather than individuals. Aboriginal rights, for example, are recognised and affirmed in section 35(1) of the Constitution Act, 1982.[5] These include a variety of rights which can be claimed by an Aboriginal person on behalf of the recognised Aboriginal group to which he or she belongs.[6]

The Constitution Act, 1867[7] creates constitutional rights of a different type: in sections 91 and 92, it distributes particular powers to each level of government under our federal structure (the division of powers). Many early constitutional cases in Canada centred around the respective rights of each level of government to legislate over particular areas or subject matters.[8] Courts have developed various interpretive tools in order to analyse whether a level of government is legislating within its constitutional powers, or whether it is infringing on the powers of the other level of government.

In Canada, constitutional rights are held against the government, and these rights are entrenched in the Constitution. This means that the Constitution would need to be amended through a complex procedure in order for rights to be modified, created, or repealed. But there are also non-constitutional rights that encompass a broader range of entitlements and freedoms enjoyed at law. These are found at common law and in statutes. For example, an individual has the common law right to use and enjoy her property without interference from her neighbours, and a non-citizen has the statutory right to apply for citizenship when he meets the criteria set out by the Citizenship Act.[9] However, because these rights are not constitutional, they can be changed by government legislation.

[3] See Schachter v Canada, [1992] 2 SCR 679, for example, where the remedies of striking down, suspended declarations of invalidity, “reading down” and “reading in” are discussed.

[4] See Charter, supra note 1, s 33(1): “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”

[6] An Aboriginal right is only made out if the activity claimed to be at the core of the right is “integral to a distinctive culture,” which requires a connection to be made between a right and a group; see R v Van der Peet, [1996] 2 SCR 507 at para 47.

[8] For example, the Federal Government has power over criminal law and banking, which might sometimes conflict with provincial powers over “property and civil rights” or “Matters of a merely local or private Nature”.

Right to Life, Liberty and Security of the Person

This article was written by a law student for the general public.

Right to Life, Liberty and Security of the Person

Section 7 of the Canadian Charter of Rights and Freedoms protects our right to “life, liberty, and security of the person.” It guarantees our legal rights, which protect our personal autonomy and bodily integrity from laws or actions by the government that violate those rights. However, government action that harms these rights is not enough to violate the Charter. Section 7 is violated only when the government infringes these rights in a way that goes against the principles of fundamental justice.

Therefore, in determining whether there has been a section 7 violation, there are two components to consider:

1) whether government action infringes life, liberty or security of the person, and

2) whether this infringement goes against the principles of fundamental justice 

Right to Life:

There is no concrete definition of the right to life.[1] This means the definition could expand when new issues emerge. Traditionally, state action that increases the risk of death involves the right to life.[2] This includes indirect action, such as barriers to health care for life-threatening conditions. [3]

Right to Liberty:

The Supreme Court is divided on what the right to liberty means, but identifies two components:

1) freedom from physical restraint, and

2) freedom to make fundamental personal choices. [4]

The first includes laws that involve possible imprisonment and physical actions that are forced by the state.[5] Two examples are mandatory fingerprinting laws and regulations that prohibit loitering.[6] The second protects the right to “enjoy individual dignity and independence.”[7] This includes decisions about how a person wants to live his or her life, such as whether to marry or have children.[8]

Right to Security of the Person:

Security of the person “has a physical aspect and a psychological aspect.”[9] The physical aspect includes state action that prevents someone from making choices that affect his or her own body. It can also involve indirect state action, such as laws that cause a risk to health.[10] The psychological aspect is affected when a person experiences “serious state-imposed stress.”[11] This occurs when the state causes stress that is beyond day-to-day stress, such as by threatening to remove children from their parents.[12]

Principles of Fundamental Justice:

If government action infringes life, liberty or security of the person, it must conform to the basic principles of fundamental justice to comply with the Charter.

Three guidelines define principles of fundamental justice:

1)        the principle must be a legal principle

2)        the public must generally consider this principle to be fundamental to a fair legal system

3)        the principle must provide a manageable standard to measure section 7 violations[13]

These guidelines are quite broad. Therefore, courts use the specific concepts of arbitrariness, overbreadth, and gross disproportionality to determine whether an infringement is in line with the principles of fundamental justice. [14] 

Arbitrariness:

The law on arbitrariness is “not entirely settled.”[15] Traditionally, two steps determine if a law is arbitrary. First, the court must identify the law’s objective. Second, the court must consider whether the law’s effects meet this objective.[16] If the law leads to an effect that is not connected to its objective, it is considered arbitrary.[17] For example, in R v Morgentaler, the court considered laws that restricted abortions to those approved by an abortion committee. [18] The government argued the law’s objective was to protect the fetus.[19] However, getting committee approval caused delays that were detrimental to women’s health. Therefore, the law was arbitrary, because these delays were not connected to the objective of protecting the fetus.[20] 

Overbreadth:

Overbreadth lets courts recognize that some laws “go beyond what is required to achieve its objective.”[21] In Bedford, the court considered the law that prohibits living off profits made from prostitution. While the law means to protect sex workers from exploitation, it prevents them from hiring drivers, receptionists, and bodyguards.[22] This law is overbroad because it prohibits some relationships that are beneficial and not exploitative.[23]

Disproportionality:

Gross disproportionality describes state action that is too extreme to justify.[24] First, the court must determine the objective of the law. Second, the court must consider whether the law’s effect is too extreme as a response to that objective.[25] If the law’s effects go beyond its objectives, it is considered disproportionate. For example, in PHS Community Services Society, the Supreme Court considered the constitutionality of refusing to allow a supervised safe injection site in Vancouver (Insite), which allowed people with addictions to use drugs without being prosecuted. Insite attempted to reduce needless deaths. The court decided that Insite caused no obvious negative impact on public health and safety.[26] Therefore, denying Insite’s services was grossly disproportionate, because of the number of lives the program saves.[27]

[1] Robert J. Sharpe & Kent Roach, The Charter of Rights and Freedoms (Toronto: Irwin Law, 2013) at 235 ; Guy Régimbald & Dwight Newman, The Law of the Canadian Constitution (Markham: LexisNexis, 2013) at 626 .

[2] Régimbald, supra note 1 at 626.

[3] Ibid.

[4] Sharpe, supra note 1 at 235; Peter Hogg, Constitutional Law of Canada (Toronto: Thomson Reuters, 2007) at 47-7 .

[5] Régimbald, supra note 1 at 627.

[6] Ibid.

[7] Godbout v Longueuil (City), [1997] 3 SCR 844 at para 66.

[8] Régimbald, supra note 1at 627-628.

[9] Ibid at 628.

[10] Ibid.

[11] R v Morgentaler, [1988] 1 SCR 30 at para 22.

[12] Régimbald, supra note 1at 629-630.

[13] R v Malmo-Levine, 2003 SCC 74 at para 113 .

[14] Peter W. Hogg, “The Brilliant Career of Section 7 of the Charter” (2012) 58 The Supreme Court Law Review 201 .

[15] PHS Community Services Society v Canada (Attorney General), 2011 SCC 44 at para 132 .

[16] Ibid at paras 129-130.

[17] Canada (Attorney General) v Bedford, 2013 SCC 72 at para 101 .

[18]Morgentaler, supra note 11 at para 39.

[19] Ibid at para 256.

[20] Ibid at para 153.

[21] Bedford, supra note 17at para 35.

[22] Ibid at para 64.

[23] Ibid at para 139.

[24] Malmo-Levine, supra note 13 at para 143.

[25] Hogg, supra note 4 at 205.

[26] Insite, supra note 15 at 133.

[27] Ibid.

Fundamental Freedoms

Fundamental Freedoms are basic political liberties required in a democracy. In general, they guarantee that an individual can act, think, be, or do without government interference unless a law says otherwise.[1]

Fundamental Freedoms are found in section 2 of the Canadian Charter of Rights and Freedoms. This section guarantees the following freedoms to everyone in Canada:

(a)  freedom of conscience and religion;

(b)  freedom of thought, belief, opinion and expression, including

(c)  freedom of peaceful assembly; and

(d)  freedom of association

The Supreme Court of Canada (SCC) interprets these freedoms in a broad way. For example, in the R v Big M Drug Mart Ltd. decision, the SCC specified that section 2 “embraces both the absence of coercion and constraint, and the right to manifest such beliefs and practices.”[2] In that case, the Court found the ban on Sunday shopping violated freedom of religion since the law’s purpose was to force the Christian religious observance on all Canadians.[3]

Fundamental freedoms became increasingly important to the international community and to Canadians after the horrors of the Second World War. The United Nations adopted a set of fundamental freedoms in the Universal Declaration of Human Rights in 1948.[4] Parliament first recognized similar freedoms in 1960 through the Canadian Bill of Rights. But as an ordinary federal statute, and not part of the Constitution, the protections given in the Bill of Rights had no more force than any other law. They also did not protect Canadians against provincial laws. In the late 1960s, P.E. Trudeau championed a bill of rights to be inserted into the constitution to “guarantee the fundamental freedoms of the individual from interference, whether federal or provincial.”[5] This guarantee was realized through patriation in 1982 and the Charter of Rights and Freedoms.

While “fundamental,” these freedoms are not absolute. Legislatures can override them by using the notwithstanding clause. However, the notwithstanding clause has never been used to override fundamental freedoms. Additionally, section 1 of the Charter establishes that the rights guaranteed within it are subject to “reasonable limits” that are “justified in a free and democratic society.”[6]

For example, in R v Keegstra the SCC ruled that the law against the willful promotion of hatred violated Keegstra’s freedom of expression, but that the law was justified under section 1. Keegstra’s anti-Semitic speech went against the very principles of democracy that the freedom of expression was supposed to protect. Hateful expression harms democracy when its targets face such scorn and disrespect that they no longer participate in the process. [7] Therefore, the law in this case was found to be a reasonable limit on freedom of expression.

[1] Walter S. Tarnopolsky, The Canadian Bill of Rights, 2d ed (Toronto: McClelland and Stewart, 1975) at 2.

[2] R v Big M Drug Mart Ltd., 1985 CanLII 69 at para 95 (SCC).

[3] Ibid at para 97.

[4] Universal Declaration of Human Rights, GA Res 217 (III), UNGAOR, 3d Sess, Supp No 13, UN Doc A/810 (1948) 71, ss 18-20

[5] The Honourable Pierre Elliot Trudeau, Minister of Justice, A Canadian Charter of Human Rights, January 1968 in Anne Bayefsky, Canada’s Constitution Act 1982 and Amendments: A Documentary History (Toronto: McGraw-Hill Ryerson, 1989), at 51-53.

[6] Canadian Charter of Rights and Freedoms. Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (UK), 1982, c 11, s 33.

[7] R v Keegstra, 1990 CanLII 24 (SCC).

Constitution Acts

The ‘Constitution Acts’ are a set of statutes enacted by the Imperial Parliament, beginning with the Constitution Act, 1867 ((U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, Appendix II, No. 5), and culminating in the Constitution Act, 1982 (being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11), that lay down much of the framework of government in Canada. There are thirteen statutes in total. Of these, the 1867 and the 1982 Constitution Acts are the most important.

The first of these statutes brought the three original confederating colonies of British North America into the Dominion of Canada together, divided that Dominion into four provinces, and distributed jurisdiction between the federal and provincial governments, either exclusively or concurrently (see division of powers). Other provisions create and partially define the powers of the executive and legislative branches of both the federal and provincial governments and the superior courts. The second of these statutes, inter alia, contains the Canadian Charter of Rights and Freedoms, provisions regarding the rights of aboriginal peoples, and procedures for constitutional amendment.

The other eleven statutes alter the legal framework established by the Constitution Act, 1867, either by amending the text of that statute, or conferring new powers or imposing new obligations on the federal government and/or the provinces. For example, the Constitution Act, 1940 (3-4 George VI, c. 36 (U.K.)) amended section 91 of the Constitution Act, 1867 to add unemployment insurance to the list of areas over which the federal government has jurisdiction.

It would be a mistake to regard these statutes as exhaustive of the Constitution of Canada. First, according to section 52(2) of the Constitution Act, 1982, the Constitution of Canada consists of not only these statutes, but also a number of other imperial statutes and orders, as well as Canadian statutes. The most important of these admitted British colonies in existence at the time of Confederation to Canada (e.g. Newfoundland) and created the Prairie provinces (e.g. Alberta). Second, as Peter Hogg has argued, this list omits a number of statutes and imperial instruments which create and define the powers of important institutions, and hence which are of a constitutional nature, such as the Supreme Court and Exchequer Courts Act, 1875(S.C. 1875, c. 11; now called the Supreme Court Act, R.S.C. 1985, c. S-26), and the Letters Patent Constituting the Office of Governor General of Canada, 1 October 1947. Third, reflecting the largely unwritten nature of the British constitutional order out of which much (but certainly not all) of our Constitution emerged, the Canadian Constitution has a significant unwritten component, consisting of common law rules alterable by ordinary legislation (e.g. prerogative powers of the Crown), unwritten rules which prevail over inconsistent legislation (see Reference Re Quebec Secession and secession), and legally unenforceable rules of political morality (see convention).

Reservation and Disallowance

Reservation’ and ‘Disallowance’ are often confused, since both derive from the practices of the British colonial empire, but they are actually distinct terms. Historically, ‘reservation’ was the practice whereby a colonial governor, rather than giving or refusing assent to a bill, could refer it to the imperial government for the final decision. ‘Disallowance’, on the other hand, was the practice whereby a colonial bill could still be declared null and void by the imperial government, even though the colonial governor had given royal assent.

Sections 55, 56 and 57 of the Constitution Act, 1867 provided that acts of the Parliament of Canada were subject to these instruments of imperial control. A few such acts were reserved or disallowed in the first few decades after Confederation, but the powers passed into disuse as Canada evolved towards independence, even though they were never formally eliminated.

Section 90 of the Constitution Act, 1867, which adapted the same practices to the purpose of maintaining federal control over the provinces, proved to be of much greater significance. Early Lieutenant-Governors frequently reserved bills for a final decision by the federal government. Although the practice was controversial, and soon became unnecessary as communications improved between Ottawa and the provincial capitals, a Saskatchewan bill was unexpectedly reserved as late as 1961.

Disallowance, from the federal viewpoint, was a much more reliable instrument of control over the provinces. It was used extensively by the Macdonald, Mackenzie and Laurier governments, particularly against Manitoba and British Columbia, and thus became a source of western discontent with the federal system. After 1911 its use was rare, but the election of the Social Credit government in Alberta in 1935 led to a brief revival. The last Act ever disallowed was a 1943 Alberta statute which prohibited the sale of land to “enemy aliens” or Hutterites.

The Victoria Charter of 1971 would have eliminated ‘reservation and disallowance’ from Canada’s Constitution, but the extensive changes made to the Constitution in 1982 left both powers intact. Either might still be used to prevent the illegal or unilateral secession of a province, but otherwise their future use is extremely unlikely.

Sources:

Concurrency

‘Concurrency’ refers to the allocation of responsibility for a subject matter of legislation to both the federal and provincial levels of government. Concurrent allocation of responsibility arises from the fact that the powers assigned to the federal Parliament and provincial legislatures by sections 92-95 of the Constitution Act, 1867 are expressed in quite general terms. As a result, the constitutional powers of the federal Parliament and the provincial legislatures overlap. Within the area of overlap, either Parliament or the legislatures have constitutional power to legislate. The power to legislate within this area of overlap is thus said to be concurrent.

Some commentators have called for expansion of the use of concurrency in the Constitution. They reason that by so doing provinces will have greater flexibility to develop legislative programs tailored to their special needs and desires. This proposal has drawn a reaction. Extensive use of concurrency, say the opponents, allows certain provinces to exercise more power than others, a situation fundamentally at odds with the notion of equality inherent in Canadian citizenship. The proponents counter that extensive use of concurrency merely affects the level at which citizens take decision – federal or provincial. It does not affect the governmental power available to citizens.

Reference re Secession of Quebec

The Reference re Secession of Quebec is the advisory opinion of the Supreme Court of Canada that addresses the constitutionality of a hypothetical unilateral declaration of independence by the province of Quebec.[1] Two related sets of events led to the Reference. First, in the latest step in its long march to independence, the Parti Québécois government of Jacques Parizeau announced in 1994 that it would hold another referendum on independence in October of 1995. Second, a Quebec lawyer and former sovereignist, Guy Bertrand, launched a court action prior to the referendum asking the court to order that the referendum not take place because a “Yes” vote could threaten Bertrand’s rights as guaranteed under the Canadian Charter of Rights and Freedoms.[2] The Court agreed with the argument but declined to stop the referendum. When the referendum was finally held, the Quebec government lost by the narrowest of margins. After the vote, Bertrand went to court again asking that the government be restrained from holding any future referenda on sovereignty.[3] This action was abandoned when the federal government decided to submit three questions to the Supreme Court of Canada in a reference.

The federal government asked the Court to offer its opinion on the constitutionality of a unilateral declaration of independence by Quebec. In other words, could Quebec legally leave Canada simply by declaring that it is sovereign? What about the existing amendment procedures in the Canadian Constitution? Second, the Court was asked whether Quebec enjoys the right under international law to declare independence unilaterally. Third, the Court was asked which body of law, domestic or international, would take precedence in the event of a conflict.[4]

In August 1998 the Supreme Court rendered its opinion. In regard to the first question, the Court declared that secession “must be considered, in legal terms, to require an amendment to the Constitution, which perforce requires negotiation.”[5] The opinion stresses the conditions and processes of negotiation almost to the exclusion of formal constitutional amendment. If a future Quebec referendum was “free of ambiguity both in terms of the question asked and in terms of the support it achieves”, then a positive result “would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire.”[6] Quebec does have a democratic right to initiate the move to independence, wrote the Court, but the population of Quebec must vote by a clear majority on a clear question in order to trigger the constitutional obligation on the part of the rest of the country to negotiate in good faith the terms of separation.[7] Quebec cannot legally – that is, within the terms of the Canadian Constitution – declare independence unilaterally. It can, however, initiate a process of change leading to independence in which Canada has an obligation to participate.

On the question of Quebec’s right of self-determination at international law, the Court answered in the negative.[8] Accordingly, it did not have to answer the third question.[9]

[1] Reference re Secession of Quebec, [1998] 2 S.C.R. 217, 1998 CanLII 793 (SCC).

[2] See: Bertrand v Quebec (Procureur General), 127 D.L.R. (4th) 408, 1995 CanLII 11036 (QC SC).

[3] See: Bertrand v Quebec (Attorney General), 138 D.L.R. (4th) 481, 1996 CanLII 12476 (QC SC).

[4] Reference re Secession of Quebec, supra note 1 at para 2.

[5] Ibid at para 84.

[6] Ibid at paras 87-88.

[7] Ibid at paras 92-94.

[8] Ibid at para 138.

[9] For more information on the SCC’s decision, see: David Schneiderman, ed, The Quebec Decision: Perspectives on the Supreme Court Ruling on Secession (Toronto: Lorimer, 1999).

Reference re Quebec Secession

The Reference re Quebec Secession ( 2 S.C.R. 217) is the advisory opinion of the Supreme Court of Canada that addresses the constitutionality of a hypothetical unilateral declaration of independence by the province of Quebec. Two related sets of events led to the Reference. First, in the latest step in its long march to independence, the Parti Québécois government of Jacques Parizeau announced in 1994 that it would hold another referendum on independence in October of 1995. Second, a Quebec lawyer and former sovereignist, Guy Bertrand, launched a court action prior to the referendum asking the court to order that the referendum not take place because a “Yes” vote could threaten Bertrand’s rights as guaranteed under the Canadian Charter of Rights and Freedoms (see Bertrand v. AG Quebec (1995), 127 D.L.R. (4th) 408). The Court agreed with the argument but declined to stop the referendum. When the referendum was finally held, the Quebec government lost by the narrowest of margins. After the vote, Bertrand went to court again asking that the government be restrained from holding any future referenda on sovereignty (see Bertrand v. AG Quebec (1996), 138 D.L.R. (4th) 481). This action was abandoned when the federal government decided to submit three questions to the Supreme Court of Canada in a reference.

The federal government asked the Court to offer its opinion on the constitutionality of a unilateral declaration of independence by Quebec. In other words, could Quebec legally leave Canada simply by declaring that it is sovereign? What about the existing amendment procedures in the Canadian Constitution? Second, the Court was asked whether Quebec enjoys the right under international law to declare independence unilaterally. Third, the Court was asked which body of law, domestic or international, would take precedence in the event of a conflict.

In August 1998 the Supreme Court rendered its opinion. In regard to the first question, the Court declared that secession “must be considered, in legal terms, to require an amendment to the Constitution, which perforce requires negotiation.” The opinion stresses the conditions and processes of negotiation almost to the exclusion of formal constitutional amendment. If a future Quebec referendum was “free of ambiguity both in terms of the question asked and in terms of the support it receives”, then a positive result “would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire.” Quebec does have a democratic right to initiate the move to independence, wrote the Court, but the population of Quebec must vote by a clear majority on a clear question in order to trigger the constitutional obligation on the part of the rest of the country to negotiate in good faith the terms of separation. Quebec cannot legally – that is, within the terms of the Canadian Constitution - declare independence unilaterally. It can, however, initiate a process of change leading to independence in which Canada has an obligation to participate.

On the question of Quebec’s right of self-determination at international law, the Court answered in the negative. Accordingly, it did not have to answer the third question.

Sources:

Colourability

Colourability is a concept that goes against Canadian federalism because the Constitution has assigned certain powers to the federal jurisdiction under section 91 and to the provincial realms under section 92.[1] It occurs when either the federal government or any of the provincial or territorial governments, attempts to introduce legislation that may appear to address one issue within the scope of its power but in fact it is a disguised attempt to address something that is outside its jurisdiction. Or, in the words of constitutional scholar Peter Hogg, colourable legislation occurs when a jurisdiction attempts to pass a law indirectly that it cannot pass directly so that it “may accomplish its original goal.”[2]

Colourability was an issue in the 1993 decision of R v Morgentaler.[3] Morgentaler planned to open an abortion clinic in Nova Scotia. The provincial government immediately passed legislation that would outlaw abortion clinics and limit the procedure to hospitals only. However, the regulations introduced were not limited to abortions. The province added procedures like liposuction and anything it claimed would jeopardize public health care in favour of a private system. Offenders would face criminal penalties. Morgentaler proceeded to open his clinic anyway and was charged. He then challenged the constitutionality of the provincial law that outlawed abortion clinics.[4] The Supreme Court agreed with the argument that specific abortion regulations, rather than being a valid provincial regulation of hospitals and medicine, instead constituted an invalid criminal law.[5] As a result, all regulations introduced in the legislation were struck down, including those not dealing with abortion.[6] Hogg argues that this was an example of colourability: Nova Scotia may have simply wished to limit abortions in the province, and so it introduced other legislation as a package that would accomplish more than one goal.[7]

Colourability is often thought of as a negative term that should be used both carefully and sparingly. According to Hogg, the adjective ‘colourable’ carries a strong connotation of disapproval or even suspicion of the means by which the legislative body sought to carry out the policy.[8] Therefore, when examining whether legislation is out of, or ultra vires, a particular jurisdiction one should not jump to the conclusion that the legislation is attempting to achieve some ulterior or subversive purpose.[9]

 

[1]The Constitution Act, 1867, ss 38-49, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[2]Peter W Hogg, Constitutional Law of Canada, vol 2, 5th ed (Scarborough: Thomson, 2007) at 15.2.

[3]R v Morgentaler, [1993] 3 SCR 463 (CanLII) . <http://www.canlii.org/en/ca/scc/doc/1993/1993canlii158/1993canlii158.html>.

[4]Ibid.

[5]Ibid.

[6]Ibid.

[7]Hogg, supra note 1.

[8]Ibid.

[9]Ibid.

Fulton-Favreau

Efforts to find anamending formula for the Canadian Constitution began in 1927. The question was studied extensively over the next thirty years but no agreements were reached. In 1960 E. Davie Fulton, Minister of Justice in the government of John Diefenbaker, proposed an amending formula at a federal-provincial conference. The formula provided that amendments affecting all provinces would require unanimous consent; amendments affecting one or more provinces would require the consent of the province or provinces concerned; amendments that did not concern provincial powers, education or official bilingualism would require the consent of two-thirds of the provinces embodying fifty per cent of the population. Ottawa could delegate powers to the provinces and vice-versa with the agreement of the federal government and at least four provinces (seedelegation and devolution).

Only Saskatchewan opposed the formula but no further attempts to implement it occurred until 1964. Informal discussions among the provincial premiers over the next few years led to agreement with no significant changes and Guy Favreau, Minister of Justice in the government of Lester B. Pearson, produced draft legislation embodying the formula which was discussed at meetings in Charlottetown and Ottawa. All of the premiers accepted the draft but the New Democratic Party opposed the formula in the House of Commons. In spite of the fact that the formula was identical to the one put forward three years earlier by his own government, Diefenbaker came out against it. Canada’s leading academic constitutional expert at the time, Bora Laskin, called the formula, “an unmitigated constitutional disaster.” While these critics saw the formula as giving too much power to the provinces, many in Quebec thought it did not go far enough. In 1965 Premier Jean Lesage of Quebec withdrew his support and the plan was effectively dead.

Sources:

  • G. Favreau, The Amendment of the Constitution of Canada (Ottawa: Queen’s Printer, 1965).
  • J. English, The Life of Lester Pearson, vol.2 (New York: A.A. Knopf, Canada, 1992).
  • J. L. Granatstein, Canada 1957-1967: The Years of Uncertainty and Innovation (Toronto: McClelland and Stewart, 1986).
  • P. Stursberg, Diefenbaker: Leadership Lost 1962-1967 (Toronto: University of Toronto Press, 1976).

Reference Question

A reference question is a submission by either the federal or provincial government that asks the courts for advice on a major legal issue. A court does not rule on a reference question. Rather, the question results in an “advisory opinion” that guides the government in determining a law’s meaning or the constitutionality[1] of a proposed course of action. A court’s answer to a reference question is not binding.

The Supreme Court of Canada (SCC) hears reference questions from the federal government. Until 1949 the SCC’s opinion could be appealed to the Judicial Committee of the Privy Council in Britain. After that, the SCC became the highest court in Canada.[2] Since that time, its decisions are the final word on the reference questions put before it.

In contrast, reference questions from provincial and territorial governments are heard by courts in their own jurisdictions. Each province has rules about how questions may be brought to the courts, which are in legislation such as Judicature Acts or Constitutional Questions Acts.[3] In most provinces the provincial Court of Appeal considers reference questions. British Columbia is the exception because its Constitutional Questions Act[4] allows questions to be referred to either the Court of Appeal or to the Supreme Court of British Columbia.[5] Once a provincial court has given its reference opinion, the government has an automatic right to appeal the decision to the SCC.[6]

Only governments can initiate reference questions. They cannot be initiated by private individuals or groups, but a court’s advice often impacts these stakeholder groups.[7] Once a court receives a reference question request from the government, it first decides whether it will hear it. For example, a court may decide to hear questions involving unresolved legal issues of interest to Canadians, but it may refuse to hear questions that can be heard as a case in lower courts or questions that are no longer relevant.[8] The guidelines for federal government reference question submissions are stated in section 53 of the Supreme Court Act, which discusses the processes for referring certain questions for judicial opinion.[9] The guidelines for provincial or territorial submissions occur within that jurisdiction’s own legislation.

Reference questions are an effective tool in Canadian law. They can influence political and societal norms. The first reference question put to the Supreme Court, in 1876, dealt with an important issue at that time: in Reference re The Brothers of the Christian Schools in Canada, the SCC was asked if Parliament had exceeded its legislative authority when it incorporated a teachers’ society.[10] Since then, the SCC has considered questions which influenced topics such as the definition of marriage in the Civil Marriage Act to Quebec separatism when it was asked to consider if and how a province can separate from Canada.[11]

Reference questions also provide timely, authoritative and cost-effective advice on the constitutionality of proposed legislation. Obtaining a court’s opinion by reference procedure is far less costly than a future constitutional challenge once a law has been passed.[12] And although courts’ reference opinions are not legally binding, to date no government has ignored them.[13]

[1] Gerald Rubin, “The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law,” in William R Lederman ed, The Courts and the Canadian Constitution (McClelland & Stewart, 1964) at 169.

[2] James L Huffman and MardiLyn Saathoff, “Advisory Opinions and Canadian Constitutional Development: The Supreme Court’s Reference Jurisdiction” (1989) 74 Minn L Rev 1251 at 1260.

[3] Rubin, supra note 1 at 172.

[4] Constitutional Questions Act, RSBC 1996, c 68.

[5]  Leah McDaniel, “The Reference Procedure: The Government’s Ability to Ask the Court’s Opinion” (June 26, 2013), online: Centre for Constitutional Studies < https://www.constitutionalstudies.ca/ccs/index.php/constitutional-issues/democratic-governance/2-the-reference-procedure-the-government-s-ability-to-ask-the-court-s-opinion#_edn6>.

[6] Supreme Court Act, supra note 3, s 36.

[7] Peter W Hogg, Constitutional Law of Canada (Toronto: Thomson Reuters Canada, 2009) at 8.6(a)).

[8] Hogg, supra note 2.

[9] RSC 1985, c S-26 .

[10] Ian Bushnell, The Captive Court: A Study of the Supreme Court of Canada (Toronto: McGill-Queen’s University Press, 1992) at 75.

[11] Rubin, supra note 1 at 174.

[12] Huffman & Saathoff, supra note 5 at 1316.

[13] McDaniel, supra note 8.

Co-operative Federalism

What is co-operative federalism?

Canada uses a system of government known as federalism in which political power is shared by the federal and provincial governments.[1] Co-operative federalism is a concept of federalism based on the federal and provincial governments working together to achieve mutual goals.[2]

The division of powers, outlined in sections 91 (federal powers) and 92 (provincial powers) of the Constitution Act, 1867[3], limits what each level of government has the authority to do. For example, the provinces have the exclusive power to regulate trade that occurs within their province, while the federal government has the exclusive power to regulate trade that occurs between provinces.[4] Although the Constitution sets out what each level of government has the exclusive power to do, in practice, there is significant overlap between the federal and provincial areas of control, such as in the area of health care.[5]

Courts have developed the idea of co-operative federalism into a legal principle to reject strict approaches to interpreting the division of powers.[6] Co-operative federalism reflects the realities in society that often require the federal and provincial governments to establish coordinated efforts.[7] The more flexible approach to interpreting the division of powers makes it easier for collaboration between governments.[8]Courts prefer to allow laws jointly enacted by both levels of government to operate in order to promote co-operative federalism.[9]

Co-operative federalism in action

“Canadian federalism’s constitutional creativity and cooperative flexibility”[10] is apparent in the Supreme Court of Canada case of Re Agricultural Products Marketing Act (Canada).[11] The case confirmed that a national egg marketing plan requiring provincial and federal laws to work together was constitutional. A federal agency assigned production quotas to each province so that they could share the national egg market.[12] Both the provincial and federal governments agreed with this arrangement.[13]

One issue in the case was whether the provinces could regulate the production of eggs that would eventually leave the province.[14] Only the federal government has the power to control international trade and trade between provinces.[15] The Supreme Court allowed the provinces to continue despite the effect of the laws on trade outside of the province, concluding that overall purpose of the laws were valid.[16] The majority of the Court recognized that the provincial laws complemented the federal laws, and that finding them to be invalid would make it impossible for a practical co-operative regulatory scheme under the Constitution.[17]

Limits of co-operative federalism

The principle of co-operative federalism is not meant to diminish a government’s power in its area of authority or jurisdiction.[18] The majority of the Supreme Court of Canada in Quebec (Attorney General) v Canada (Attorney General) emphasized that the principle must respect the division of powers.[19] In this case, the majority did not apply the doctrine of co-operative federalism as it would undermine the jurisdiction of the federal government.[20]

The case related to a federal law that was passed in 2012 to put an end to the long-gun registry.[21] The long-gun registry was initially created in 1995 when the federal government passed the Firearms Act, establishing a national gun control scheme.[22] Quebec viewed the registry as a partnership between the two levels of government.[23]

Data from the national and provincial registries were combined into a central database.[24] Quebec claimed that it had gathered, analyzed, organized, and modified data in the central database.[25] The province argued that it had a right to the data because it resulted from the partnership; therefore, the federal government was obligated to transfer the data to the province owing to the principle of co-operative federalism.[26]

The majority of the Supreme Court concluded that regardless of Quebec’s involvement, the principle of co-operative federalism cannot be used to force the federal government to give Quebec the data.[27] If the federal government has the power to create the registries, then according to the Constitution, it also has the power to dispose of its data without Quebec’s consent.[28]

This keyword was written by Raymond Chen.

[1] Reference re Secession of Quebec, [1998] 2 SCR 217 at para 56.

[2] Eric M. Adams, “Judging the Limits of Cooperative Federalism” (2016) 76 SCLR (2nd).

[3] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.

[4] Citizens Insurance Co v Parsons, (1881) 7 AC 96 (PC) .

[5] PHS Community Services Society v Canada (AG), 2011 SCC 44 at paras 62, 66-69.

[6] Quebec (AG) v Canada (AG), 2015 SCC 14 at para 17 .

[7] Ibid at para 148.

[8] Ibid at para 147.

[9] Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 149.

[10] Fédération des producteurs de volailles du Québec c Pelland, 2005 SCC 20 at para 15.

[11] Re Agricultural Products Marketing Act (Canada), [1978] 2 SCR 1198 .

[12] Ibid at 1214-16.

[13] Ibid at 1214.

[14] Ibid at 1216.

[15] Parsons, supra note 4.

[16] Ibid at 1285-87, 1296.

[17] Egg Reference, supra note 11 at 1296.

[18] Quebec, supra note 6 at paras 19-20.

[19] Ibid at paras 18-20.

[20] Ibid at para 20.

[21] Ibid at para 7.

[22] Ibid at para 5.

[23] Ibid at para 22.

[24] Ibid at para 6.

[25] Ibid at para 121.

[26] Ibid at para 22.

[27] Ibid at para 20.

[28] Ibid.

Freedom of Religion

The freedom of religion is one of the fundamental freedoms protected by section 2 of the Canadian Charter of Rights and Freedoms.[1]

What is the legal impact of having this freedom? In other words, what does it allow me to do and what government action does it protect me from?

According to the Supreme Court, the Charter-protected freedom means that no one in Canada can be forced by the government to act in a way that is contrary to his or her religious views.[2] For example, the Supreme Court has determined that religious officials cannot be forced to perform same-sex marriages if doing so violates their religious beliefs.[3] In practice, having the freedom of religion means a person is allowed to entertain whatever religious beliefs he or she chooses.[4] Freedom of religion also allows a person to declare his or her religious beliefs “without fear of hindrance or reprisal,” and to worship, practice, and disseminate those beliefs.[5]

The freedom of religion protects only “beliefs, convictions, and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held.”[6] What does the term “religion” mean in this legal context? “Religion,” according to the Supreme Court, “is about freely and deeply held personal convictions … connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment.”[7] It often “involves a particular and comprehensive system of faith and worship” and “the belief in a divine, superhuman or controlling power.”[8]

What religious conduct is legally protected from government interference? A ‘trivial or insubstantial’ effect on a person’s ability to practice his or her religion will not constitute a breech of this freedom.[9] The freedom extends to protect against only non-trivial interference. Additionally, only practices that do not injure others are protected.[10]

Beyond these thresholds, religious beliefs that are ‘sincerely held’ are protected from government infringement.[11] Sincerity can be assessed many ways, for example, by examining the claimant’s demeanour, his or her prior religious experience, and the relationship between prior religious experience and the belief currently held.[12] There is no objective inquiry into whether a belief conforms with established religious practice.[13] The freedom of religion is not contingent on whether a religion is being practiced ‘correctly’.[14]

Are their any limitations on the freedom of religion? While freedom of religion is a fundamental freedom, it is not absolute: this freedom is subject to  “reasonable limits” by the government as outlined in section 1of the Charter.[15] For example, the Alberta Government was allowed to impose a universal photo requirement for drivers' licences even though this violated the religious freedom of Albertan Hutterites, whose religious beliefs prohibit them from having their photograph taken.[16]

[1] Canadian Charter of Rights and Freedoms, s 2, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.  

[2] R v Big M Drug Mart, [1985] 1 SCR 295 at 337, 18 DLR (4th) 321 .

[3] Reference Re Same-Sex Marriage, 2004 SCC 79 at para 60, [2004] 3 SCR 698.

[4] Big M Drug Mart, supra note 2 at 336.

[5] Ibid.

[6] Syndicat Northcrest v Amselem, 2004 SCC 47 at para 39, 2004 2 SCR 551 .

[7] Ibid.

[8] Ibid.

[9] Ibid at para 58. See R v Jones, [1986] 2 SCR 284 at 313–14, 31 DLR (4th) 569.

[10] Ibid.

[11] Ibid at 42; See also Jose Woehrling, “L’obligation d’Accommodement Raisonnabe et L’adaptation de la Societe a la Diversite Religieuse” (1998) 43:2 McGill LJ 325.

[12] See Re Civil Service Association of Ontario and Anderson et al, 60 DLR (3d) 397 at 399, 9 OR (2d) 341 (HC).

[13] Amselem, supra note 6 at para 43.

[14] Ibid at para 50: “In my view, the State is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting and thus determining … the content of a subjective understanding of religious requirement, “obligation,” precept, “commandment,” custom or ritual”.

[15] Canadian Charter of Rights and Freedoms, supra note 1, s 1.

[16] Hutterian Brethren of Wilson Colony v Alberta, 2009 SCC 37 at para 104, 310 DLR (4th) 193.

Charter Statements

Charter Statements are documents prepared by the Minister of Justice upon the introduction of a new bill. They are a tool designed to reassure the public that the government has considered potential constitutional problems that may arise as a result of its proposed law. A Charter Statement notes the potential constitutional issues that the legislation may present, and how these issues could be justified. However, a Charter Statement itself will not explicitly say if a Charter right would be violated by a provision in the bill that is proposed.

Under section 4.1.1 the Department of Justice Act, it is the responsibility of the Minister of Justice to ensure that bills introduced into Parliament comply with the Charter.[1] Charter Statements are one way of doing this. Therefore, to ensure that the public is aware that the government has taken its responsibility seriously, it has tabled Bill C-51 - An Act to Amend the Criminal Code and Department of Justice Act. This Bill states that Charter Statements will become mandatory for every piece of legislation introduced once it is passed.  As stated by the current government,  “[r]equiring the introduction of a Charter Statement for every new Government bill represents a new, more open and more transparent way of demonstrating respect for the Charter.”[2]

The practice of identifying a bill’s constitutionality has manifested in different ways before the introduction of Bill C-51. Before the use of Charter Statements, ministers presenting new bills gave their implicit approval of a new bill’s constitutionality. Academic James Kelly points out that “Charter vetting” has always been a mandatory practice, as “[a] department cannot submit a memorandum to cabinet unless the DOJ [Department of Justice] has assessed the risk of judicial invalidation and must certify its constitutionality.”[3]

An Example of a Charter Statement: Bill C-45

Charter Statements are a separate document that accompanies a bill upon its introduction to the House of Commons. Every Charter Statement begins with an explanatory note, stating the purpose of a Charter Statement, which is the same for each bill. This note makes clear that the statement is not a comprehensive overview of Charter considerations, as bills see a number of amendments from their first reading in the House of Commons to their Royal Assent. It also identifies section 1 of the Charter as a balancing mechanism, noting that even though there may be a violation of the Charter in the proposed legislation, it may be one that can be justified by the government.  Further, each Charter Statement makes a point of including that a Statement “is not a legal opinion on the constitutionality of the Bill.”[4]

Following this explanatory note is a brief explanation of the bill’s purpose, along with an overview of the Charter “engagements” the bill presents. For example, in Bill C-45, the Cannabis Act, potential engagements with the Charter are categorized by different topics the legislation addresses. Some of these include criminal offences created through the Bill, restrictions on promotion/packaging/labeling, and “ticketable offences and administrative monetary penalties”. Regarding criminal offences, the Statement identifies that these provisions could engage section 7 of the Charter, which deals with life, liberty, and security of person. The statement explains what section 7 of the Charter is, and that “[a]ny criminal prohibition that gives rise to the possibility of imprisonment engages the section 7 right[.]”[5] It also provides considerations that support the consistency of the provisions with the Charter that potentially engage section 7, citing case law and explanation. Therefore, the Charter Statement points out that the criminal offences provisions in Bill C-45 may engage section 7 of the Charter, letting the public know that this is a possibility, not a certainty. In short the government has, as a matter of its accountability to the public, considered this possibility and nonetheless feels confident in tabling the Bill.

[1]James B. Kelly, “Parliament and the Charter of Rights: An Unfinished Constitutional Revolution” Policy Options 1 February 2007, online http://policyoptions.irpp.org/magazines/the-charter-25/parliament-and-the-charter-of-rights-an-unfinished-constitutional-revolution/[Parliament and the Charter of Rights]

[2]Department of Justice Canada, “Cleaning up the Criminal Code, Clarifying and Strengthening Sexual Assault Law, and Respecting the Charter” Government of Canada 07 June 2017, online <https://www.canada.ca/en/department-justice/news/2017/06/cleaning_up_the_criminalcodeclarifyingandstrengtheningsexualassa.html>

[3]Ibid.

[4]Department of Justice, “Bill C-45: An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and Other Acts” Government of Canada29 May 2017, online <http://www.justice.gc.ca/eng/csj-sjc/pl/charter-charte/c45.html>

[5]Ibid.

Individual Property Rights

Section 1(a) of the 1960 Canadian Bill of Rights provides federal statutory recognition of “the right of the individual to … enjoyment of property”, and the right “not to be deprived thereof except by due process of law.”[1] The right to property is also included under the fifth and fourteenth Amendments of the American Bill of Rights.[2] However, the Canadian Charter of Rights and Freedoms does not provide constitutional protection for individual ‘property rights’. At the meetings of the Special Joint Committee on the Constitution and during Parliamentary debate on Bill C-60, Progressive Conservative MPs proposed that a right to “the enjoyment of property” be included under section 7 of the Charter. This amendment was rejected largely due to provincial government concerns, shared by federal New Democratic Party MPs, that entrenching property rights in the Charter of Rights and Freedoms could interfere with environmental, zoning and other land use regulation; public ownership, expropriation and regulation of resource-based and other industries; and with legislative restrictions on foreign ownership of land.[3] In the 1989 decision of Irwin Toy v Quebec (AG) the Supreme Court of Canada referred to the intentional exclusion of property rights from the Charter as a basis for finding that economic rights of a “corporate-commercial” nature are not protected under section 7.[4]

[1] Canadian Bill of Rights, SC 1960, c 44, s 1(a), reprinted in RSC 1985, Appendix III.

[2] US Const amend V; US Const amend XIV, § 1.

[3] See: Alexander Alvaro, “Why Property Rights Were Excluded from the Canadian Charter of Rights and Freedoms” (1991) 24:2 Can J Political Science 309.

[4] Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927 at 1003-04, 1989 CanLII 87 (SCC).