Federalism Issues

IN ORDER:

1)Validity

Statute/Portion of a Statute: ->Within proper head of power?

2)Applicability

Statute is valid but does it Apply?

Interpretation

Does statute apply?

ET

Whether or not statute applies

Taxation

Crown Immunity (s.125)

IJI

Allowing a Fed D to claim immunity from application of valid Prov law Prov affecting vital part of Fed Federal heads of power which are immune from application of Prov (Grail) ARGUE FED AND ENTITY AND FED CORE AFFECTED IN IJI*** -Define Fed matter as an Entity (s.91 or s.92(10)) -Define Fed matter as Core as Head of Power (s.91) Fed Entity: -1) Find entity that exists (Ex: Bus company) -2) Identity essential part or capacity of entity, entity as a going concern -3) Application of valid Prov law to entity will impair an essential part of it Fed Core: -1) Identify Head of Power under s.91 of Constitution -2) Describe core of Fed Head of Power -3) Persuade application of Prov law will impair core Prov Entity: -1) Identify Prov entity -2) Identify essential part -3) Application of Fed law will impair it Prov Core: -1) Identify head of power -2) Is there impairment

3)Operability Paramountcy

Two valid statutes (s.91 + s.92) Prov law Valid + Applicable to D but conflicts with Fed Conflict= Fed wins Inoperable to extent of conflict -1) Operational Conflict (compliance with one conflicts with other) -2) Frustration of Purpose (identify of purpose)

IJI

Federal Work and Undertaking

Crown not limited to gov’t -Agencies, organizations Fed D must convince that it is Federal undertaking under: s.92.10(a)(b)(c)-Federal Work and Undertaking

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 the Provinces, or extending beyond the Limits of the Province; (b) Lines of Steam Ships between the Province and any British or Foreign Country; (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 the general Advantage of Canada or for the Advantage of Two or more of the Provinces

OR that other Federal entities

-IJI: MUST BE FED ENTITY, EXEMPTION: FED WORK/UNDERTAKING s.92.10Ontario (AG) v Winner

Facts: -P claim for injunction against D restraining from embussing and debussing passengers within New Brunswick -NB said can control what does on in their Province Issue: -Does D have IJI from Provincial injunction? -Does Provincial have control over roads allow for stopping the bussing company? Ratio: -Applicability (Before IJI) must ask:

o ->1) Is D a Federal entity? (Applies to matters under s.92.10)

-Necessary for IJI to apply ->No application for IJI from Provincial law unless Fed

o ->2) What jurisdiction does Province have?

-Federal work (s.92(10)) and undertaking need not be applied rigidly,

o ->Can be JUST a Work/Undertaking

-“Undertaking”: arrangement under which a work is used (ex: driving) -“Work”: physical thing itself (ex: road) -Federally incorporated company

-Provinces cannot regulate businesses or transportation in Province that go between/connect Provinces (s.92.10(a)) -Cannot use Colourability: make it look Federal when it is not Analysis: -In pith and substance the injunction as preventing flow from Province to Province not traffic regulation -Undertaking was indivisible from other acts of driving through other Provinces -Interprovincial: Business did not just fall within NB -The undertaking is one connecting Province with another and extending beyond limits of Provinces and there comes within

Provisions of s.92(10)(a) and is w/in jurisdiction of Dominion ->Was a Fed Entity- therefore IJI applies Conclusion: -IJI awarded

West Coast Gas

WCG owns gas pipeline (BC and Alberta) and applies to BC Board to expand within BC Federal Undertaking: -1)Is it a Federal work and undertaking? -2)What is the relationship b/w businesses and main business that it constitutes Federal work and undertaking? Even if not work

or undertaking is it necessarily incidental to first work?

-IJI: PROV LAW “AFFECTS” ESSENTIAL PART OF FED STATUE Bell Canada v Quebec, 1988

Facts: -Pregnant employee sought to be reassigned form her unit under a Provincial Health and Safety Act -Bell Canada claimed IJI from Provincial Health and Safety Act as a federal undertaking Issue: -Is Bell entitled to IJI? Ratio: -In order for the inapplicability of Provincial legislation rule to be given effect, it is sufficient that the Provincial statute which

purports to apply to the Federal undertaking AFFECTS a vital or essential part of that undertaking without paralyzing it -Not impair but AFFECTS Analysis: -Provincial act affected labour relations which is an essential part of Federal undertaking Conclusion: -IJI granted, Provincial statute inapplicable

-IJI=RECIPROCAL, APPLIES TO BOTH “CORE” and “ENTITY” in HEADS OF POWER-IJI: MUST “IMPAIR”-PARAMOUNTCY: FED LAW PREVAILS IN CONFLICT, PROV INOPERABLE-PARAMOUNTCY: 1) OPERATIONAL CONFLICT 2) FRUSTRATION OF FED STATUTECanadian Western Bank v Alberta

Facts: -Question over to what extent which Banks, as Federally regulated institutions, must comply with Provincial laws regulating

promotion and sale of insurance

-Bank trying to carry claim free of Alberta insurance regulations Issue: -Are insurance products vital and essential elements of Banks as an entity or that they are at the core of banking that Prov

insurance law would impair it? Ratio: -IJI:

o -Constitution is based on an allocation of exclusive powers to both levels of government not concurrent powers

->Seeks to avoid concurrency of powers ->Seeks to protect essential parts of Federal undertakings ->IJI is Reciprocal (applies to both Federal and Provincial) ->IJI Applies to both Entities (vital and essential elements) and Heads of Power in s.91 (unassailable core)

-Entity: Fed Organization (ex: bank) ->Impair vital and essential undertaking of entity as a going concern ->How Entity operates and how law will apply and subsequently impair -Head of Power: ->Impairs essential part/”Core” of Fed Head of Power

->Does not apply to subsidiary or secondary effects, only Core of Head of Power under s.91 ->Incidental effects not okay if they impair other heads of power

o ->Impact of a law adopted by one level of Gov’t increases in severity from “affecting” to “IMPAIRING” Core/Entity of other level of government

o ->Provinces can’t sterilize Fed entities and prevent Fed from carrying out business in Province by applying valid Prov lawo ->IJI is RECIPROCAL

Protect Prov from Fed encroachment as well

-Paramountcy:

o ->Recognizes that where laws of Federal and Provincial levels come into conflict, Federal law prevails

->Provincial legislation is rendered inoperative to the extent of the incompatibility ->Can be in reference to Prov ancillary or primary powers ->Types of Paramountcy -1) Operation Conflict -2) Frustration of Fed Statute Analysis: -IJI:

o ->Alberta Insurance valid legislation, Provincial legislation does not impair Banks as a Core of Head of Power or Fed Entity

o ->Insurance not related to vital or essential component of banking undertaking as a going concerno ->Banks do many things, insurance not part of essential core of Banking under s.91.15

-Paramountcy:

o ->No operational incompatibility or frustration of a Federal purposeo ->Compliance by banks with Provincial legislation will compliment not frustrate Federal purpose of Banks

Conclusion: -IJI claim rejected

o ->Does not broaden scope of banks under heads of power by allowing compliance to Provincial laws

-Paramountcy claim rejected

o ->Absent conflict with a valid Federal law, valid Provincial legislation will apply

-PARAMOUNTCY: NO CONFLICT IF PROV LAW “DUPLICATES”-PARAMOUNTCY: MUST HAVE CONFLICT/CONTRADICTIONMultiple Access v McCutcheon

Facts: -Valid Provincial and Federal law, both Intra Vires dealing with insider trading -Multiple Access charged under Provincial law -Claim Provincial insider trading law was Inoperable b/c company was Federally incorporated and Fed legislation already dealt

with it Issue: -Does the doctrine of Paramountcy apply to Federal and Provincial statues both dealing with insider trading? Ratio: -If Provincial merely DUPLICATES Federal, then there is no conflict -No contradiction/inconsistency=no Paramountcy -Conflict required (one=yes, one=no) -If conflict, Fed always prevail, Prov inoperable -If Fed repeals act, Prov becomes operable Analysis:

-Provincial law was a duplication and was not contradicting Fed law Conclusion: -Provincial law valid, no Paramountcy

Grail

Each Fed head of power possesses an essential core which Prov are not permitted to regulate

-IJI: DOES NOT APPLY IF DOUBLE ASPECT, MUST IMPAIR VITAL PART OF ENTITY/CORE-PARAMOUNTCY: FED/PROV LAW INCAPABLE OF SIMULTANEOUS ENFORCEMENTBritish Columbia v Lafarge

Facts: -VPA (federally entity under s.91(10) shipping) claimed IJI from city permit for building construction because it related to

navigable shipping, a Federal matter Issue: -Is the VPA exempt from the city by-law via IJI as being part of necessary for Fed Entity? -If not IJI does Paramountcy apply? Ratio: -IJI

o ->IJI does not apply when a matter of a Double Aspect Doctrineo ->IJI does not apply when does not impair a vital or essential part of entity or core of head power

-Paramountcy :

o ->For Paramountcy, there must be an existence of valid Federal and Provincial which are incapable of simultaneous enforcement

o ->Existence of Operational Conflicto ->Frustration of Federal Legislative Purpose

Analysis: -IJI

o ->Building not essential part of Fed Entity VPA, therefore no IJI from By-Lawo ->Not a vital and essential part of port, developing of building not an essential core of undertaking of shipping (91.1A)

-Paramountcy

o ->Operational Conflict: Provincial and Federal laws contradict as Provincial says cannot build above certain height but goes against Federal law saying building plant was okay

o ->Frustration of legislative purpose of Canada Marine Act

Conclusion: -IJI does not apply -Paramountcy: By-law constitutionally inapplicable to the building as it relates to navigation and shipping

-IJI: IMPAIR HEAD OF POWER TEST: “BASIC, MINIMUM, UNASSAILABLE CONTENT”-IJI: CORE=AUTHORITY NECESSARY TO ACHIEVE PURPOSE OF JURISDICTION-PARAMOUNTCY: 1) OPERATIONAL CONFLICT: ONE SAYS “YES”, OTHER SAYS “NO”-PARAMOUNTCY: 2) FRUSTRATE FED PURPOSE: COMPLIANCE POSSIBLE, PROV FRUSTRATES FED PURPOSE OF LEGISLATIONQuebec v Canadian Owners and Pilots Association (COPA)

Facts: -Federal government has power to control flights and air travel as it relates to POGG -Built aerodrome in Quebec -Quebec argued that Provincial legislation of agriculture precluding placement of airfields and aerodromes should prevail Issue: -Should local interest in land use prevail against national interest in unified system of aeronautical navigation? Ratio: -IJI

o ->1) Whether the Provincial law trenches on protected core of Federal competenceo ->2) Whether the Provincial law’s effect on the exercise of the protected Federal power is sufficiently serious to invoke IJI

-Head of Power ->Must IMPAIR a core of Federal Head of Power (midpoint of affect and sterilize)

o ->TEST: Whether subject comes within essential jurisdiction and the “basic, minimum and unassailable content”

->Core of a Federal power is the authority that is absolutely necessary to enable Parliament “to achieve the purpose for which exclusive legislative jurisdiction was conferred”

o ->IJI is concerned with scope of Federal powero ->IJI is to negate potential inconsistency between Federal and Provincial legislation by rendering Provincial legislation

inapplicable to the extent it impairs the core of a Federal power

-Paramountcy

o ->Deals with how power is exercisedo ->Paramountcy arises from 2 different types of conflicts

->1) Operational Conflict: One enactment says “yes” and the other says “no” such that compliance with one is defiance of the other

->2) Frustrate Fed Purpose: Dual compliance is possible, but Provincial law is incompatible with the purpose of the Federal legislation

-Must FRUSTRATE not merely permissive Prov legislation

Analysis: -IJI

o ->Aerodromes are an essential part aeronautics and aerial navigation (established in POGG)o ->Location of aerodromes IJI because it is essential to the Federal power and falls within the core of Aerodromes under

POGGo ->s.26 of Quebec agricultural act does impair Core of Federal Head of Power on where aerodromes should be builto ->If s.26 applied, it would force Federal Parliament to choose between accepting that the Province can forbid the

placement of aerodromes on the one hand, or specifically legislating to override the Provincial law on the other hando ->Would IMPAIR Federal power over aviation

-Paramountcy

o ->No Operational conflict as Fed could choose to not built aerodromes in agricultural area, does not necessarily conflict, Fed could build somewhere else

o ->Not CONFLICTING Fed action that is incomplianto ->Evidence does not establish a Federal purpose regarding the location aerodromes that is frustrated by the Provincial

legislationo ->No disclosure of any Federal purpose with respect to location of aerodromes are given, the frustration of a Federal

purpose is not establishedo ->Paramountcy does not apply

Conclusion: -IJI applies -Paramountcy does not apply

-IJI: CORE HAS UNASSAILABLE CONTENT-IJI: ENTITY’S OPERATION, MUST BE NARROWCanada v PHS Community Services Society

Facts: -Federal Controlled Drugs and Substances Act prevented the use of Insite Services -Province claimed this violated s.7 rights under the Charter with regard to health, a Provincial service -Province tried to invoke IJI from Federal Issue: -Is Insite exempt from Federal criminal laws because of health facility under Province? Ratio: -IJI is based on the notion that there is a minimum and UNASSAILABLE content to Core of Power -Since it is not necessary for the government benefiting from the immunity to actually regulate in the field in question, extension of

IJI risks creating legal vacuums (creating law when it does not apply) -IJI has been narrowed -Need a distinguishable core -Must look at what entity does and their operation Analysis: -Provincial power does recognize health -BUT unassailable core not identified of Health -P have failed to show the core of the exclusive Provincial power as health is very broad -Federal has power to legislate on things that relate to health, this would not be a narrow IJI application in refusing to allow Federal

to legislate with anything to do with health -Double Aspect Doctrine of health Conclusion: -Federal criminal law is valid and applicable, no Provincial IJI

-1)IS PROVISION VALID? (WITHIN PROPER HEAD OF POWER-UV?)-2)IS PROVISION APPLICABLE? (IJI)-3)IS PROVISION OPERABLE? (PARAMOUNTCY)Quebec v Human Resources and Social Development

Facts: -Worker claimed compensation under Provincial act but it was withheld under a Federal statute Issue:

-Is s.144 of Quebec Act respecting diseases constitutionally inapplicable under s.126 of the Federal Employment Insurance Act? -Is the Provincial Provision Inapplicable (IJI) or Inoperative (Paramountcy)? Ratio: -For Paramountcy have to consider: ->1) Whether Provision is valid (Under proper s. of Constitution) ->2) Whether Provision is applicable (Whether IJI hasn’t already excluded) ->3) Whether Provision is operative (Paramountcy rendering Prov inoperative) -IJI should be considered before Paramountcy in finding if the Provision is inapplicable before it is inoperative Analysis: -Purpose of Fed law of maintaining integrity of employment insurance would be frustrated if Commission had to comply Provincial

Provision making of workers’ compensation -No intention that Parliament had intended to comply with this Provincial statute -Provincial Provision is inoperative owing to conflict (Frustrating Fed purpose) Conclusion: -Two Provisions are in conflict -Paramountcy applies

CHARTER

Checklist P commits a Charter challenge for a right that is covered Everyone who is a permanent resident can claim Charter 1) Applicability: Coming from Gov’t Entity under s.32? -Gov’t -Entity carrying out gov’t function 2)Right? Infringement? -FOE

-Conveys meaning-Not prohibited via method/location

-FOR -Nexus connection -Sincere belief

3)Justification? -S.1 (Oakes) -Other Balancing 4)Remedies? -S.24(1) -S.52(1)

Applicability

s.32

Charter applies to:

o –Parliamento -Government of Canadao -Legislatureo -Gov’t of each Provinceo -Crown corporations

If government, everything it does is under s.32 If Private entity, performing gov’t function, only function subject to Charter

-ONLY GOV’T HAS TO ABIDE CHARTER-STATUTORY BODY/PERFORMING PUBLIC SERVICE DOES NOT EQUAL GOV’TMcKinney v University of Guelph

Facts: -Professors applied for declarations that university policy requiring them to retire at 65 violated s.15 of the Charter Issue: -Do universities constitute a government entity and therefore are constrained by the Charter? Ratio: -Only government requires to be constitutionally shackled to preserve the rights of the individual -Other entities may offend the rights of the individual -Charter is limited by s.32(1) in its application to Parliament

o -Legislative, executive and administrative branches of government

-Mere fact that an entity is a creature of statute is insufficient to make it subject to the Charter -Being a statutory body performing a public service does not in itself make them part of government

-Funding/incorporation does not mean automatically gov’t entity -Degree of autonomy that organization exercises determines if entity is part of gov’t Analysis: -University Policy is not taken under a statutory compulsion, therefore cannot be a Charter attack -Government has no legal power to control universities -Funding is not enough to constitute government -Decisions about the university are not government decisions, had autonomy and were not taking direction -Universities do not form part of the government Conclusion: -Policy does not violate Charter Dissent: -Should take a broad view of the meaning of government -Various tests to determine if government: -“Control Test”: Is the body part of the legislative, executive or administrative branches of government and if not, is it subject to the

control of one of these branches of government? -“Government Function Test”: Is the performance of a given activity a government function -“Government Entity Test”: Does the entity perform a task pursuant to statutory authority and perform that task on behalf of

government in furtherance of a government purpose?

-COURTS/COMMON LAW ARE GOV’TGrant v Torstar

Facts: -Newspaper argued that there are inadequate defences in the tort of defamation -They argued that the law unduly curbs free expression (section 2(b) of the Charter) and chills reporting on matters of public

interest Issue: -Does the Charter apply to courts and common law? -Should the common law provide a defence based on responsible communication in the public interest? Ratio: -Guarantee of free expression in s.2(b) of the Charter has three core values 1) democratic discourse 2) truth-finding and 3) self-

fulfillment -Can use Charter as tool to get some change/modification in CL Analysis: -Freewheeling on matters of public interest should be encouraged -Constitutional value of free expression affords defence in relation to matters of public matters -Charter applicable to courts Conclusion: -New defence awarded

-STATUTE=GOV’T-PRIVATE ENTITY CARRYING OUT GOV’T FUNCTION=S.32 APPLIESEldridge v British Columbia

Facts: -Patients at hospital complained that absence of interpreters their ability to communicate with doctors and this violates s.15 of the

Charter Issue: -Does the breach of s.15 arise from the impugned legislation (Health Care Services Act) of from actions of entities (hospital)

exercising decision-making authority pursuant to the legislation? Ratio: -A statute is governmental -Any statute that violates the Charter is applicability constrained -An entity acting pursuant to legislation is not applicable -Charter does not apply to private entities -Private entity may be subject to Charter if it is carrying out a governmental action -An entity performing what may be termed a “public function” or that a particular activity may be considered “public” in nature is

not sufficient to bring within the purview of the government -In order for Charter to apply to a private entity, must be found to be implementing a specific governmental policy or program -Charter may be found to apply to an entity: ->1) Entity is itself “government” as defined under s.32 of Charter ->2) Entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to

government Analysis: -It is government not hospitals that is responsible for defining content of services to be delivered -Providing medically necessary services, hospitals carry out a specific government function set out in Medical and Health Care

Services Act

-Legislature cannot evade its obligations under s.15(1) of Charter to provide those services without discrimination by appointing hospitals to carry out objective

Conclusion: -Hospitals must conform with Charter

Vriend v Alberta

Omission or underinclusiveness of Charter can still be applicable

-S.32 APPLIES TO ALL ENTITIES GOV’T IN NATURE-MUNICAPILITIES ARE GOV’T Godbout v Longueuil

Facts: -Job required an employee to live within certain area, she moved out of area and was fired -Claimed that this municipal law violated the Charter Issue: -Does the Charter apply to municipal laws? Ratio: -“Governmental in nature”: Cannot escape Charter scrutiny -S.32 is wide enough to include all entities that are essentially government in nature and is not restricted to those that are formally

part of the structure of the Federal or Provincial governments -Municipalities are governmental entity -Resolutions are not law and cannot strike them down Analysis: -Municipalities are elected, have taxing power and are empowered to make laws, therefore can be described as governmental in

nature -Municipalities gov’t in nature Conclusion: -Charter applies to municipalities

Justification

Intro

Once P has established Charter breach, government has to justify law/actions under s.1 May have to justify: -s.7: Overbreadth -s.1: Vague -s.1: Cannot be classified as law -s.1: Oakes test

-VAGUENESS: LAWS MUST NOT BE TOO VAGUE UNDER S.7-DOCTRINE OF VAGUENESS: LAWS MUST PRECISE ENOUGH FOR LEGAL DEBATE-FACTORS IN VAGUENESS: FLEXIBILITY, INTELLIGIBILTY, VARYING INTERPRETATIONSR v Nova Scotia Pharmaceutical Society

Facts: -Accused charged under CIA -Accused argued that the word “unduly” in the charge was too vague and therefore the charge did not apply Issue: -Is the law too vague to constitute a valid law? Ratio: -Vagueness can be raised under s.7 of Charter since it is a principle of fundamental justice that laws must not be too vague-violates

life, liberty and security of the person Rule of Law: Have to know what law is to follow it -Factors to consider in determining whether a law is too vague: ->1) Need for flexibility and interpretative role of courts ->2) Impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate ->3) Possibility many varying judicial interpretations of a given disposition may exist and coexist -A vague law may also constitute an excessive impairment of Charter rights under Oakes test -Doctrine of Vagueness: ->Fair notice to citizens needed ->Ignorance of the law is no excuse: must know what the law is ->A law must not be so devoid of precision in its content that a conviction will automatically flow from the decision to

prosecute ->An unintelligible Provision gives insufficient guidance for legal debate and is therefore unconstitutionally vague -A vague Provision does not Provide an adequate for legal debate

-Doctrine of Vagueness: a law will be found unconstitutionally vague if it lacks a precision as to not give sufficient guidance for legal debate

-Vague: Ambiguity creates overbroad effects -Overbreadth: statute is clear but application is broad Analysis: -CIA and the use of “unduly” is not vague it has the proper connotation of seriousness Conclusion: -Law not deemed unconstitutional

-s.1 JUSTIFICATIONR v Oakes

Facts: -Oakes charged with possession, onus was on him to Prove not trafficking -Oakes claimed this violated s.11(d) of Charter to be assumed innocent until Proven guilty Issue: -Is the reverse onus justified under the Charter? Ratio: -s.1 of Charter: underlying values and principles of a free and democratic society are genesis guaranteed by Charter and these

limits on rights must be shown to be REASONABLY and DEMONSTRABLY justified -2 Criteria: Limit To be REASONABLY and DEMONSTRABLY justified ->1) Objective must be of “sufficient importance to warrant overriding a constitutionally protected right or freedom” ->2) Proportionality Test -a) Rational Connection: Achieves Objective in question (cannot be arbitrary, unfair or irrational) -b) Minimal Impairment: Should impair as little as possible (best option to implement, no other that could implement that

is less infringing) -c) Proportionality (effects of sufficient importance and the limits it places, salutary outweigh deleterious effects) Analysis: -Reverse onus clause could give rise to unjustified and erroneous convictions for drug trafficking of persons guilty of only

possession -s.8 does not survive rational connection test Conclusion: -Law declared unconstitutional

-FINANCIAL CRISIS ALLOWS FOR DISCRIMINATION-OAKES: MINIMAL IMPAIRMENT-CHOOSING MOST APPROPRIATE OPTION NFLD v NAPE

Facts: -NFLD gov’t cut pay to women nurses because of financial crisis -Women claimed this was a violation to s.15 of the Charter Issue: -Is a governmental fiscal crisis sufficient to justify limiting rights to Charter Freedoms? Ratio: -Normally financial exigency/budget problems cannot be used as grounds for discrimination, but can be used in times of financial

crisis -Temporary crisis allows for discrimination -Judicial Notice: fact so well known need not be proven -Oakes Test -2.a) Minimal Impairment: certain types of decisions there may be no obviously correct or obviously wrong solution, but a range of

options each with its advantages and disadvantages Analysis: -1) Pressing and Substantial Legislative Objective: financial crisis is pressing and substantial -2) a) Rational Connection: found between pay cuts and avoiding financial crisis -b) Minimal Impairment: Government response was tailored to minimally impair right in context of problem it confronted -c) Proportionality: Detriment of delay in achieving pay equity did not outweigh importance of preserving financial stability -Gov’t failed to produce evidence of money crisis which should have negated defence-Judicial Notice??????? Conclusion: -Law not unconstitutional

REMEDIES

s.52 v s.24

S.52:Whole or part of statute can be void S.52: applies to Federalism/Charter (declared ultra vires/inoperable) S.24(2): applies to Charter Breach determines what remedies available Law:s.52

Actions: If government violating Charter rights under a law- s.24

Remedies Available:

-Invalidity (Validity, ET) -Inapplicability (Paramountcy, ET) -Inoperability (IJI) -Reading Down-s.52(1) (Schachter) -Suspension with Striking Down-s.52(1) (Schachter) -Reading in-s.52(1) (Vriend) -Severance-s.52(1)(Schachter) -Constitutional Exemption-s.24(1) (Ferguson) -Damages-s.24(1) (Ward) -Declaration of Violation-s.24(1) (Ward)

-s.52-SEVERANCE: EXTENT OF INCONSISTENTY-s.52-INCONSISTENCY DEFINE BASED ON FAILED STEP OF OAKES-s.52-READING IN: INCLUDE EXCLUDED GROUP-S.52-TEMPORARY SUSPENSION: OPPORTUNITY TO BRING IN LINESchachter v Canada

Facts: -Dad applied for benefits under adopted parents Provision and was denied -Claimed this was unconstitutional Issue: -Can biological parents be read-in into the adopted parents legislation? Ratio: -S.52: -Doctrine of Severance: ->Reading Down: under s.52 courts have struck down laws only to the extent of the inconsistency ->Only the offending portion should be declared no force or effect and the rest should be spared -Once s.52 is engaged: ->Extent of Inconsistency should be Defined:

o –Pressing/Substantial Objective=Broadly

->Where legislation in question fails first branch of Oakes in that is purpose is held not to be sufficiently pressing or substantial to justifying a Charter right or if the purpose is itself held to unconstitutional the whole legislation

o -Rational Connection=Narrowly

->Purpose held to be sufficient pressing and substantial but legislation fails first element of proportionality branch of Oakes test in that means used to achieve purpose are held not to be rationally connected to it

o -Minimal Impairment/Deleterious Effects=Flexibly

->Legislation fails second/third element of proportionality branch of Oakes

-Reading In:

o ->Where inconsistency is defined as what statute excludes, inconsistency may be to include excluded group within statutory scheme

o ->Legislative objective is obvious and reading in would further that objective or a constitute a lesser interference with that objective than would striking down

o ->Choice of means used by legislature is not unequivocal that reading in would constitute an unacceptable intrusion into legislative domain

o ->Reading in would not involve an intrusion into legislative budgetary decisions so substantial as to change nature of legislative scheme in question

-Temporarily Suspending Declaration of Invalidity

o ->Gives Parliament an opportunity to bring impugned legislation into line with constitutional obligations even if striking down is most appropriate if:

->Striking down legislation without enacting something in its place would pose a danger to public ->Striking down legislation without enacting something in its place would threaten rule of law ->Legislation was deemed unconstitutional because of under inclusiveness rather than over breadth and

therefore striking down legislation would result in deprivation of benefits from deserving person without thereby benefitting individuals whose rights have been violated

-S.24:

o ->Where s.52 is not engaged, s.24(1) may be available, statute is not unconstitutional but some action taken under it infringes a person’s Charter rights

o ->s.24 would Provide for an individual remedy for person

-S.24 + S.52:

o ->When s.52 has struck down a law then usually no s.24 remedy will be availableo ->Retroactive s.24 remedy not available as it would duplicate relief

Analysis: -Provision of benefit to adopted parents unconstitutional b/c too underinclusive -Severance not appropriate remedy -Reading in not appropriate given the financial constraints Conclusion: -Legislation temporarily suspended giving Parliament a chance to rework it

-s.52: REMEDY DEPENDS ON EXTENT OF CHARTER INCONSISTENCY-CAN: STRIKE DOWN, SEVER, TEMPORARY SUSPEND, READ DOWN, READ IN

-DOCTRINE OF INVALIDITY: RETROACTIVE TO DATE ENACTEDVriend v Alberta

Facts: -Vriend fired for being gay -Vriend brought action under IRPA but it was dismissed as sexual orientation was not included -Vriend brought action to SCC, claiming s.15 of Charter was violated and he was discriminated against for being gay and it should

be included in IRPA Issue: -What is the appropriate remedy for IRPA violating s.15 of the Charter? Ratio: -First step in selecting a remedial course under s.52 is to define extent of Charter inconsistency which must be struck down -Several remedial actions: ->Striking down legislation ->Severance of offending sections ->Striking down or severance with a temporary suspension of declaration of invalidity ->Reading down and reading Provisions into legislation -Reading In

o ->Underinclusive legislation

-Doctrine of Invalidity

o ->Retroactive to date enacted

-s.24 is a perfectly valid law -When strike down law you lose everything Analysis: -Inconsistency is exclusion of sexual orientation from protected grounds of IRPA ->Exclusion is an unjustifiable infringement upon equality rights guaranteed in s.15 of Charter -Remedy of reading in would minimize interference with legitimate legislative purpose of protecting individuals and avoid

excessive intrusion into legislative sphere -Whereas striking down IRPA would deprive all Albertans of human rights protection and unduly interfere with scheme enacted by

legislature -Remedy of reading is consistent with legislative intention Conclusion: -Sexual orientation read in into IRPA

-s.24: APPLY TO COURT OF COMPETENT JURISIDCTION FOR REMEDY IN DISCRETION-s.24: CAN ONLY BE BROUGHT BY PERSON HARMED-s.52: MAY BE INVALID FOR ITS PURPOSE OR EFFECT-CONSTITUTIONAL EXEMPTIONS UNCLEAR

R v Ferguson

Facts: -Ferguson given mandatory 4 year minimum sentence -Claimed this violated s.12 of Charter (cruel and unusual punishment) -Wanted exemption, not striking down Issue: -Does imposition of 4-year mandatory minimum sentence constitute cruel and unusual punishment contrary to s.12 of Charter? -Can an offender obtain a constitutional exemption from application of minimum sentence? Ratio: -2 remedial Provisions govern remedies for Charter violations: ->1) s.24(1): Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court

of competent jurisdiction to obtain such remedy as the court considers appropriate and just (DISCRETION) in the circumstances

o -->Used as a remedy, not for unconstitutional laws, but for unconstitutional government acts committed under authority or legal regimes which are accepted as fully unconstitutional

o -->Remedy for government acts that violate Charter rights

o -->Personal remedy against unconstitutional government action and therefore can only be brought by person whose Charter rights have been violated

->2) s.52(1): Constitution of Canada is supreme law of Canada, and any law that is inconsistent with Provisions of the Constitution, to the extent of the inconsistency, of no force or effect

o -->A law may either inconsistent for its purpose or effecto -->Remedy for laws that violate the Charter rights

-If constitutional defect of a law can be remedied without striking down law as a whole, then a court must consider alternatives to striking down

-If a law providing for a mandatory minimum sentence is found to violate Charter, should be declared inconsistent with Charter and no force and effect under s.52 of Constitution

Analysis: -If a minimum sentence law is found to be unconstitutional on facts violating s.12, law would be inconsistent with Charter and fall

under s.52 of Constitution -Availability of constitutional exemptions for mandatory minimum sentencing laws has not been conclusively decided, weight of

authority thus far is against them and sounds a cautionary note -Having these exemptions impairs right of citizens to know what the law is in advance and govern their conduct accordingly and

risks overapplication of the law -In granting constitutional exemptions, courts would be altering state of law on constitutional grounds without giving clear

guidance to Parliament as to what the Constitution requires in the circumstances Conclusion: -Sentence is not cruel and unusual punishment -Offenders cannot obtain a constitutional exemption as a remedy for cruel and unusual punishment imposed by a law prescribing a

minimum sentence Discussion: Arguments in favour : where mandatory min sentence is constitutional in most cases, and only generates unconstitutional result in

small # of cases, better to grant constitutional exemption rather than strike down law as a whole. Arguments against : need to avoid intruding on role of legislature, general remedy for unconstitutional laws is s. 52, granting

constitutional exemptions in mandatory min sentence cases undermines rule of law (“constitutional exemptions buy flexibility at the cost of undermining the rule of law”). McLachlin CJ says: a constitutional exemption will only be appropriate remedy in unusual cases, when applied in connection w/ s. 52(1) declaration of invalidity and where doing so necessary to give claimant an effective remedy (e.g. where striking down law has been temporarily suspended).

-APPROPRIATE + JUST REMEDY: 1) VINDICATE 2) LEGIT W/I FRAMEWORK 3) FUNCTION AND POWER OF COURT 4)FAIR TO PARTY ORDER IS MADE-s.24 DAMAGES: 1) CHARTER BREACHED 2) APPROPARITE + JUST (FULFILL FUNCTIONS OF COMPENSATION, VINDICATION, DETERRENCE) 3) NO COUNTERVAILING FACTORS (ALTERNATIVE REMEDY, EFFECTIVE GOVERNANCE) 4) QUANTUM OF DAMAGESVancouver v Ward

Facts: -Ward was strip searched when mistakenly identified as someone else -Claimed police’s actions were unconstitutional Issue: -When may damages be awarded under s.24(1) of the Charter? Ratio: -Claimant should be placed in same position as if their Charter rights had not been infringed -Appropriate + Just Remedy:

o ->1) Meaningfully vindicate rights and freedoms of claimantso ->2) Employ means that are legitimate within framework of our constitutional democracyo ->3) Be a judicial remedy which vindicates right while involving function and powers of a courto ->4) Be fair to party against whom order is made

-Damages may be under s.24(1) of Charter when:

o ->1) A Charter right has been breachedo ->2) Damages are shown to be a just and appropriate remedy, having regard to whether they would fulfill one or more of

related functions:

1) Compensation (Personal loss: physical, psychological, pecuniary, intangible interests such as distress, humiliation, embarrassment and anxiety)

2) Vindication of the right (Charter rights must be maintained and cannot be allowed to whittled away by attrition, rights harm only particular victims but society as a whole, impairs public confidence and diminish public faith in the efficacy of constitutional protection)

3) Deterrence of future breaches (Damages may serve to deter future breaches by state actors, regulate government behaviour to achieve compliance with the Constitution)

o ->3) State cannot show that countervailing factors defeat functional considerations that support a damage award and render damages inappropriate or unjust

-Even if claimant establishes that damages are functionally justified, state may establish that other considerations render s.24(1) damages inappropriate or unjust

-2 Considerations:

->1) Alternative Remedies

o -If other remedies adequately meet need for compensation, vindication and/or deterrence, a further award of damages under s.24(1) would serve no function and would not be “appropriate and just”

o -Alternative Remedies include: Private law remedies for actions for personal injury, other Charter Remedies such as declarations under s.24(1) and remedies for actions covered by legislation permitting proceedings against Crown

->2) Effective Governance

-s.24(1) remedies can have a chilling effect on government conduct-State may establish that an award of Charter damages would interfere with good governance

such that damages should not be awarded unless state conduct meets a minimum threshold of gravity-Mackin principle: state must be afforded some immunity from liability in damages resulting

from conduct of certain functions that only that state can perform

o ->4) Assess quantum of damages

-Charter breach may cause claimant pecuniary loss (bills, medical treatment etc.) -Charter breach may cause claimant non-pecuniary loss (pain and suffering) -Damages under s.24(1) should not duplicate damages awarded under private law causes of action, such as tort -Amount of damages must reflect what is required to functionally serve objects of compensation, vindication of

the right and deterrence of future breaches having regard to impact on claimant and seriousness of state conduct

Analysis: -Ward’s injury was serious and strip search was humiliating -Infringement calls for compensation for Ward’s loss and for deterrence for police behaviour -State has not illustrated alternative remedies are available to achieve objects of compensations, vindication with respect to strip

search or that the damages are negated by good governance -Damages are appropriate and just -No injury during car search, declaration effective enough for deterrence Conclusion: -Damages properly awarded for strip search but not justified for seizure of car

Ducette v Boudreau

S.24(1) had two strikes against it -1) Lack of clarity (remedy- but what do we do with it) ->Need to be clear as to what to do with the remedy -2) Separation of Powers ->Court is assuming an executive position ->Courts were supervising enforcement of remedy s.24 is a Provision that has yet to be explored for Damages are an option

-SUPERIOR COURTS COMPETENT JURSIDICTION TO GRANT CHARTER REMEDY-PROV COURT MUST HAVE JURISDICTION BESTOWED ON THEM BY STATUTE-TRIBUNAL GRANT CHARTER REMEDY BASED ON 1) JURISDICTION TO DECIDE LAW? 2) LEGISLATION INTEND TO TAKE AWAY? 3) CAN GIVE PARTIC REMEDY SOUGHT?R v Conway

Facts: -Conway applied to Ontario Review Board for mistreatment in the correctional system and for a Charter remedy Issue: -Does the Ontario Review Board under s.24(1) of the Charter have remedial jurisdiction? -What is the relationship between the Charter, its remedial Provisions and administrative tribunals? Ratio: -Anyone whose freedoms have been infringed/denied can apply to court of competent jurisdiction -s.96- Superior Courts are competent jurisdiction -s.96(14)- Prov courts not inherent jurisdiction-only when bestowed upon them by statute -Admin tribunals has jurisdiction to deal with questions of law as a court of competent jurisdiction to Provide remedy -Prov legislature can grant power to tribunals or take it away ->Look at related statute -Principles governing remedial jurisdiction under Charter apply to both courts and administrative tribunals -A tribunal which has jurisdiction to grant Charter remedies is a court a competent jurisdiction -Tribunal must then decide given this jurisdiction whether it can grant particular remedy sought based on its statutory mandate -Whether the tribunal can grant Charter remedies:

o ->1) Whether administrative tribunal has jurisdiction, explicit or implied, to decide questions of law

o ->2) If it does, and unless it is clearly demonstrated that the legislature intended to exclude Charter from tribunal’s jurisdiction, tribunal is a court of competent jurisdiction and can consider and apply the Charter and Charter remedies when resolving matters before it

o ->3) Whether tribunal can grant particular remedy sought, given relevant statutory scheme- (must discern legislative intent)

Analysis: -Would not be appropriate and just in Conway’s case for Board to grant absolute discharge -Authority to make treatment decisions lies exclusively within mandate of Provincial health authorities in charge of hospital where

an NCR patient is detained, pursuant to various Provincial laws governing Provision of medical services -It would be an inappropriate interference with Provincial legislative authority (and with hospitals’ treatment plans and practices)

for Review Boards to require hospital authorities to administer particular courses of medical treatment for benefit of an NCR accused

-Contradiction of Parliament’s intent of statutory scheme of public safety and Review Board’s mandate, Board cannot grant these remedies to Conway

Conclusion: -Review Board not allowed to grant absolute discharge

FREEDOM OF EXPRESSION

Freedom of Expression Checklist

1)S.32-Government or governmental entity? 2)Burden of Proof on Claimant that FOE is infringed -Is it FOE: Expression must fall within s.2(b) ->Any form of expressive activity (including receiving of expression) except: 1) Violence 2) Protected Place (look to

Location) Characterize form of Expression in s.2(b) -Political expression, commercial etc. ->Closer to center s.2(b) the more protecting it gets (pornography and hate speech gets less protection) Claimant must show that s.2(b) expression is infringed (either in purpose or effect) -Purpose has been to restrict->Go directly to s.1 -Effect is corollary and somehow restricts FOE, does not go to s.1, must show how has limited you in one of values of

s.2(b) was enacted (truth seeking, political expression, self-fulfillment) Law may be negative (impose a restriction on your expression) Government can say law is positive claim (underinclusive and claimant wants on board with law) to make it harder for claimant

(more hurdles to overcome) -Claimant would have to establish positive claim and why positive claim has to be justified (Dunmore Factors of Burden:

1) Claimant persuade court that somehow fundamental freedom is being impaired, not just wanting access to statutory platform 2) Fundamental freedom in question has been substantially interfered with (purpose/effect) 3) Government is responsible or inability to express the thing in question)

-> Meet these show infringement 3)Then shifts to government to justify under s.1 -Gov’t must ask: Is there a law? ->Too vague to be a law? Too unintelligible? ->Law or policy? (Greater Van) -If law then s.1 (Oakes test) -Bryan factors of context to reduce evidentiary burden on government- slot in where relevant 4)Remedial -s.52 if law -s.24 if just state actor and no law

-s.2(B) PROTECTION: EXPRESSION CONVEYS A MEANING, NON VIOLENT FORM-s.2(B) INFRINGMENT: PURPOSE OR EFFECT (VIOLATES: TRUTH SEEKING/PARTICIPATING/SELF-FULFILLMENT)-s.2(B) VIOLATION MUST BE JUSTIFIED UNDER s.1 OAKESIrwin Toy LTD. v Quebec (Attorney General)

Facts: -Company advertising to children -Charged under Consumer Protection Act, claimed that this infringed on their s.2(b) rights Issue: -Does s.248 and 249 of CPA limit Freedom of Expression? Ratio: -Everyone in s.2(B) includes corporations -Expression has both a content and a form -Activity is expressive if it attempts to convey a meaning -That meaning is its content -s.2(b) Protection:

o ->If activity conveys or attempts to convey a meaning, it has expressive content and prima facie protected

-While guarantee of free expression protects all content expression, violence as a method of expression receives no such protection -Infringement:

o ->1) Does the expression conveys a meaning?o ->2) Was the purpose or effect of government action to restrict Freedom of Expression

-A) If government’s PURPOSE was to restrict attempts to convey a meaning (either by directly restricting the content of expression or by restriction a form of expression tied to content), there has been an infringement of s.2(b)

->s.1 analysis is required to determine whether law is inconsistent with Provisions of Constitution ->If government aims only to control physical consequences of particular conduct, its purpose does not

trench upon guarantee -> Does mischief consist in meaning of the activity or purported influence that meaning has on

behaviour of others, or does it consist only in direct physical result of the activity

-B) If not government’s purpose, court must move to an analysis of the EFFECTS of the government’s action

->Burden on P to demonstrate effect occurred and that they conveyed a meaning reflective of one of the Principles and Values underlying FOE

->Principles and Values underlying protection of FOE:

o -1) Seeking and attaining trutho -2) Participating in social and political decision makingo -3) Self-fulfillment and human flourishing

o ->3) If Yes to purpose or effect, must ask: Whether limit of FOE is justified under s.1 (onus on justifying limitation on FOE rests on party seeking to uphold limitation)

-1) Pressing and Substantial Objective -2) Means Proportional to Ends

->A) Rational Connection ->B) Minimal Impairment ->C) Deleterious Effects

-Activity which is NOT protected by FOE

o ->1) Does not convey or attempt to convey a meaning thus having no expression o ->2) Conveys a meaning through a violent form

Analysis: -Advertising to children attempts to convey a meaning -Purpose of impugned Provisions was to restrict advertising in order to protect children -P’s activity is not excluded from sphere of conduct by FOE -Pressing and Substantial Objective: Purpose was to protect children -Rational Connection: ban on advertising to children is rationally connected to objective protecting children from advertising -Minimal Impairment: ban on commercial advertising directed to children was minimal impairment of free expression consistent

with pressing and substantial goal of protecting children against manipulation such as advertising -Deleterious Effects: no suggestion here that effects of ban are so severe as to outweigh government’s substantial objective Conclusion: -Impugned Provisions reasonable limit upon freedom of expression and justified under s.1

-s.2(B) PROTECTION: PHYSICAL ACTS MUST CONVEY MEANING-VAGUE: LAW MUST BE AN “INTELLIGIBLE” STANDARD-GOVERNMENT CATEGORIZES PROTECTION: POLITICAL EXPRESSION AT CORE, HATE SPEECH AT PERIPHERYR v Butler

Facts: -Man selling pornography challenged obscenity Provisions under Criminal Code s.163 that violated s.2(b) of Charter Issue: -Does s.163 of C Code violate s.2(b) of Charter? -If s.163 violates s.2(b) of Charter, can it be demonstrably justified under s.1 as a reasonable limit? Ratio: -Such purely physical activity may be distinguished from that form of activity which is physical but conveys ideals, opinions or

feelings

o ->Purely physical activity can be expression

-Difference b/w physical activity with no meaning (parking car) and physical activity with a meaning (pornography) -Laws can be struck down for being so vague so that is does not qualify as a “limit prescribed by law” under s.1 and that is it so

imprecise that it is not a reasonable limit ->Vague: Does the law provide, “an intelligible standard according to which judiciary must do its work” -Difference b/w “flexible” and “vague” laws ->Fact that a particular legislative term is open to varying interpretations by the courts is not fatal

->Purpose is a function of the intent of those drafted and enacted the legislation at the time, and not of any shifting variable

-Minimal impairment about proper job of trying to do it, not minimal impairment -Government will categorize expression -Gov’t can characterize object and purpose of legislation that is one in which legit characterization under Charter so law can pass

stage Analysis: -Subject matter of materials in this case is purely “physical”, but does not mean that materials do not convey or attempt to convey

meaning such that they are without expressive content -Form of activity is medium which meaning sought to be expressed is film and sexual gadget ->Nothing inherently violent in vehicle of expression -Both purpose and effect of s.163 are to restrict communication of certain types of materials based on their content -In creating a film, regardless of its content of film is consciously choosing particular images which attempts to convey a meaning -S.163 seeks to prohibit certain types of expressive activity and infringes s.2(b) of the Charter -Rational Connection: restricting obscenity and protecting society and women -Minimal Impairment: provision does not proscribe limiting sexually explicit material without violence that is not degrading or

dehumanizing ->Standard of “undue exploitation” is appropriate -Deleterious Effects: aimed at avoiding harm, only affecting economic sales, freedom does not outweigh importance of legislative

objective Conclusion: -Restriction of FOE allowed

Keegstra

Hate speech Provision upheld Hate speech though protected by s.2(b) (marginally)

-s.2(B) PROTECTION: EXPRESSIVE CONTENT?-s.2(B) PROTECTION: METHOD OR LOCATION REMOVE THAT PROTECTION?-s.2(B) LOCATION: PUBLIC PLACE PROTECTED? 1) HISTORICAL/ACTUAL FUNCTION OF LOCATION 2) ASPECTS OF PLACE WOULD UNDERMINE VALUES OF FOE?-s.2(B) INFRINGEMENT: PURPOSE OR EFFECT?-s.2(B) JUSTIFICATION: OAKESCity of Montreal v Quebec Inc. (Numbers)

Facts: -Power of Montreal to enact by-law prohibit noise produced in street by speaker located in entrance of an establishment -Club claimed this by-law violated s.2(b) -Speaker was in private property owned by company but noise by-law was about being heard outside area Issue: -Does by-law prohibiting noise violate s.2(b) and if so, is it a reasonable limit under s.1? -Does the “location” prohibit Charter protection? Ratio: -Infringement of s.2(b) must answer “Yes” to following questions:

o ->1)Did action have expressive content, brining action within s.2(b) protection?

-All expressive activity is protected under the Charter

o ->2) Does the method or location of this expression remove that protection?

-Method or location may remove protection (ex: method of violence to express themselves) -Location: Property may be private or public ->Public Property is government owned ->Private Property falls outside protection of s.2(b) absent state-impose limits on expression -Whether place is a public place with constitutional protection for free expression on the basis that expression in

that place does not conflict with purposes of democratic discourse, truth finding and self-fulfilment depends on: ->a) Historical or actual function of the place -Expression appropriate for this place? ->b) Whether other aspects of place suggest that expression within it would undermine values underlying free-

expression -Expressive activity should be excluded from protective scope of s.2(b) only if its method or location clearly

undermines values of guarantee (truth finding, self-fulfillment, discourse)

o ->3) If expression is protected by s.2(b), does by-law infringe protection either in purpose or effect?

-THEN: S.1 onus of government to show that limit: -1) Pressing and substantial objective -2) Proportionate (aka means) (1) rationally connected, 2) impairing right of FOE in a reasonably minimal way 3) having

an effect in terms of curtailment of right that is proportionate to benefit sought) Analysis:

-Speaker sent a message into street about show going on inside club -Area of speaker and public square are places of protected expression -Content of playing music is expressive -Expression falls within public domain -Streets are public areas -Effect of By-law: restrict expression -Limitation is pressing and substantial: combatting noise pollution -Rationally connected: by-law prohibiting noise rationally connected -Minimal impairment: regulating by sound level has reasonable limits -Proportionate: deleterious regulation of sound is proportionate to beneficial effects of combatting noise pollution- entitled to a

healthy environment Conclusion: -By-law limits s.2(b) but is a reasonable limit under s.1 Dissent: -Altered the law, changed type of prohibition -Not narrow enough, too catch-all

-s.2(B)- RIGHT TO PUBLISH AND RECEIVE-s.1 ANALYSIS DEFERENCE FOR POLITICAL EXPRESSION WHEN NO EVIDENCE: 1) NATURE OF HARM/INABILITY TO MEASURE IT 2) VULNERABILITY OF GROUP PROTECTED 3) FEAR/APPREHENSION OF HARM 4) NATURE OF INFRINGED ACTIVITY-ABSENCE EVIDENCE: LOGIC AND COMMON SENSE MAY RELIED UPON-MINIMAL IMPAIRMENT: REASONABLE ALTERNATIVE NOT ENOUGH TO STRIKE DOWNR v Bryan

Facts: -Canada Elections Act prohibited broadcasting election results one election day until polling stations are closed in all parts of

Canada -Guy published east coast results before west was done and claimed that prohibition against it violated s.2(b) Issue: -Whether Canada Elections Act violates s.2(b) and can be justified under s.1? Ratio: -s.2(b) includes right to publish as well as right to hear/receive -Courts ought to take deference towards Parliament when dealing with election laws -Impugned Provision must be viewed in its context -4 Contextual Factors in favouring deferential approach (humble submission) to Parliament in s.1 Analysis for balancing political

expression when there is no evidence:

o ->1) Nature of Harm and Inability to Measure it

-a) Maintaining public confidence in electoral system -b) Ensuring informational equality -Elections must be fair

o ->2) Vulnerability of group protectedo ->3) Subjective fears and apprehension of harmo ->4) Nature of Infringed activity: political expression

-Absent determinative evidence, logic and common sense could be relied upon to assist in s.1 analysis -Court must be guided by values and principles essential and democratic society -S.1 analysis:

o ->Minimal Impairment: If law falls within a range of reasonable alternatives, courts will not find law overbroad because there is a reasonable alternative which might better satisfy objective

Analysis: -Protecting Western Canadian voters -Election results are of fundamental importance in a free and democratic society -Pressing and Substantial Objective: safeguarding integrity of electoral process -Proportionality: ->a) Rational Connection: allowing voters to access results of voting in other districts would violate objective ->b) Minimal Impairment: public confidence is protected and only prohibits until after election is over ->c) Salutary and Deleterious Effects: primary importance that informational equality and is only effective legislative response

available to Parliament to address that objective, magnitude of ban is small Conclusion: -Reasonable limit, act upheld

-CORE/PERIPHERY OF FOERJR Macdonald

Commercial advertising for tobacco (harmful) is right at the periphery of FOE Could it depend on what is being advertised? Persuade counsel of particular characterization of particular form of FOE

Closer to center, more protection it gets If government trying to push it out of circle If arguing for FOE, arguing close to center

-NEGATIVE RIGHT: FREEDOM FROM SUPPRESSING EXPRESSIVE ACTIVITY-POSITIVE RIGHT: GOV’T MUST ACT TO ENABLE EXPRESSIVE ACTIVITY (DUNMORE FACTORS: 1) CLAIM GROUNDED IN FOE 2) EXCLUSION HAS SUBSTANTIAL INTERFERENCE W/ FOE 3) GOV’T RESPONSIBLE FOR INABILITY TO EXERCISE FREEDOM)Baier v Alberta

Facts: -LAEA restricted school employees from running for election as a school trustee only in jurisdiction in which they were employed -Unless on a leave of absence, a person is not eligible to be nominated as a candidate for election as a trustee of any school board if

that person is employed by any school district of division Issue: -Does Local Authorities Election Act limiting ability of school employees to run for election and serve as school trustees violate

s.2(b) of the Charter? Ratio: -Whether violation of FOE:

o ->1) If activity conveys or attempts to convey a meaning (if it has expressive content, it prima facie falls within scope of guarantee of s.2(b))

o ->2) Does impugned legislation infringes that protection either in purpose or effect

-Negative Right: seek freedom from gov’t legislation or action suppressing an expressive activity otherwise free to engage -Positive Right: Gov’t must legislate or act to support or enable expressive activity -An exception to the general rule that freedom of expression under s. 2(b) of the Charter does not grant the right to a statutorily

created platform for expression

o ->If Charter claim for is a Positive Rights (wanting to be included) under s.2(b), court must proceed:

-1) Consider whether activity claimant seeks s.2(b) protection is a form of expression -2) Determine if claimant claims a positive entitle to government action or right to be free from government

interference -3) If a positive right claim, Dunmore factors must be considered

->1) Claim is grounded in a fundamental FOE rather than in access to a particular statutory regime ->2) Claimant has demonstrated that exclusion from a statutory regime has effect of a SUBSTANTIAL

interference with s.2(b) FOE or has purpose of infringing FOE under s.2(b) ->3) Gov’t is responsible for inability to exercise fundamental freedom

->If all Dunmore factors satisfied s.2(b) has been infringed and goes to s.1

-Right of Receipt: s.2(b) includes right to receive as well as broadcast Analysis: -School trustee candidacy is an expressive activity -Positive Right claim: LAEA excluded teachers- seeking inclusion in an underinclusive statute -Dunmore Factors: ->1) Claim is access to particular statutory regime of school trusteeship not in fundamental Charter freedom ->Claiming a unique role is not the same as claiming a fundamental freedom ->2) Appellants have not established that exclusion from school trusteeship substantially interferes with ability to express

themselves on matters relating to education system -Employees may express themselves in many ways other than serving as school trustee Conclusion: -Claim dismissed

-s.32: APPLIES NOT TO GOV’T BUT ALSO: 1) ENTITY GOV’T HAS SUBSTANTIAL CONTROL OVER 2) ENTITY PERFORMS GOV’T ACTIVITY-PRESCRIBED BY LAW s.1: ENTITY AUTHORIZED TO ENACT POLICIES BINDING RULES OF GENERAL APPLICATION- PRECISE AND ACCESSIBLEGreater Vancouver Transportation Authority v CFS

Facts: -Buses would not allow Teachers Federation to purchase advertising on the side of them -Teacher’s Federation claimed that the policies violated FOE under s.2(b) of Charter Issue: -Do these policies have to comply with s.2(b)? -Do they violate s.2(b) if refusing the Teachers Federation to purchase space? -Are these limits saved under s.1? -What is the appropriate remedy? Ratio: -s.32(1) for who Charter applies to: ->Not just Parliament but also to matters within authority of those entities -1)Nature of entity and nature of its activities: entity is government because of its nature or because government

exercises substantial control over it

-2)Not a gov’t entity but performs governmental activities, only those activities will be subject to Charter ->Gov’t should not be able to shed Charter obligations by conferring powers on another entity -Method or Location may exclude expression from protection ->Method: Violence not protected ->Location: Not constitutional freedom to express themselves on ALL governmental property -Positive Claim: Claim gov’t must legislate/act to enable expressive activity -Negative Claim: Claim for freedom from government legislation suppressing an expressive activity people would be otherwise free

to engage -Whether Infringe s.2(b): ->1) Expressive content under s.2(b) ->2) Method or location remove protection? -Location: Whether government-owner property place that is public where one would expect protection for FOE and

where intended to serve: 1) Democratic Discourse 2) Truth Finding 3) Self-Fulfillment ->Answer this by considering: -1) Historical/Actual function of place -2) Whether other aspects of place suggest expression within it would undermine values underlying FOE -If not protected location, no s.2(b) expression ->3) Does government entity deny protection? -“Prescribed by Law” ->Whether policies satisfy “prescribed by law” in s.1 of Charter -1) Law: Whether gov’t entity authorized to enact policies and whether policies are binding rules of general application ->If YES- then Policies are Law under s.1 -2) Prescribed: Whether policies are sufficiently precise and accessible ->Prescribed by regulation/statute/by-law or common law ->Policy must establish a norm or standard of general application enacted by government entity pursuant to a

rule-making authority ->Rule making authority: Parliament/Prov delegated power to gov’t entity for purpose of enacting binding rules

of general application establishing rights and obligations of individuals to whom they apply ->SUMMARY: policy authorized by statute and sets out general norm/standard meant to be binding, sufficiently accessible

and precise, policy is legislative and is Prescribed by Law ->Very Inclusive approach -Remedies:

o ->If law: s.52(1) will apply not s.24(1)o ->S.52(1) remedy under Constitution Act, 1982 to declare no force or effect

-Political expression core of s.2(b) -If law for s.1 then its law for s.52 (but law for purpose can be different) Analysis: -s.32(1): BC Transit a government entity, statutory body designated by legislation -Content of expressive activity: Political message -Means of expression: advertising enabling expression -Not positive right, advertising not a platform for limited group of individuals or for a narrow purpose -Only content of advertisement is restricted, therefore claim cannot be under inclusive -Whether Infringe s.2(b) ->1) Advertisements have expressive content ->2) History of this use as a public expression, city bus public place where individuals can openly interact with each other and

expect constitutional protection, no indication aspects of location expression would undermine values underlying free expression ->3) Purpose of policy to restrict content of expression therefore deny protection ->Infringes s.2(b) -Prescribed by Law: Policies establish standard, given authority by government for TransLink -S.1 Analysis: ->Rational Connection: policies were adopted to Provide safe, welcoming transit system, limits are NOT connected to objective ->Political advertisements do no create a hostile environment -Unjustified limit under s.2(b) not saved by s.1 -Remedies: ->Policies come within meaning of la, adopted by gov’t entities for rule making power ->Law under s.52(1) of Constitution Conclusion: -Law of no force or effect

FREEDOM OF RELIGION

RELIGION

Not Precise Sincere Belief: Not rigorously scrutinized

-ANY PERSON OR CORPORATION ACCUSED MAY INVOKE CONSTITUTIONAL CHALLENGE

-FOR: PREVENTS GOV’T TO FORCE COMPELLING OR ABSTAINING FROM RELIGION-CANNOT CLAIM SECTARIAN/SHIFTING PURPOSER v Big Drug Mart

Facts: -Big M charged with unlawfully carrying out sale of goods contrary to Lord’s Day Act -Big M challenged Lord Day’s Act saying that it violation freedom of conscience and religion under s.2(a) Issue: -Does Lord’s Day Act violate s.2(a) and can it be saved under s.1 Ratio: -FOR is a personal freedom and a corporation cannot have a conscience or a religious belief -Only people can apply under s.24(1) for Charter remedy -People and corporation can apply for s.52(1) remedy for no force or effect -Any accused whether person or corporation may defend a criminal charge by arguing the charge is unconstitutional -Freedom: Absence of coercion of constraint

o ->Subject to constraints: protect public safety, order, health, morals rights or freedoms of others (Internal Limits)

-FOR: Prevents government from compelling individuals to perform or abstain from performing otherwise harmless acts because of religious significance of those acts to others

-Protection of one religion and concomitant non-protection to other disparate impact on religious freedom -Government may not coerce individuals to affirm a specific religious belief or to manifest a specific religious practice for a

sectarian purpose -Government cannot give legislative preference for one religion over others -Does not allow shifting purposes Analysis: -Under LDA, non-Christians prohibited for religious reasons from carrying out activities which are lawful and moral Conclusion: -LDA infringes s.2(a) of Charter and cannot be justified under s.1 of Charter -No force or effect

-RELIGION: 1) PRACTICE/BELIEF HAVING NEXUS W/ RELIGION, CONNECTION WITH DIVINE 2) SINCERE BELIEF-FOR INFRINGEMENT: MORE THAN INSUBSTANTIAL/TRIVIAL-WAIVING CHARTER RIGHTS MUST BE DONE CLEARLY AND VOLUNTARILYSyndicat Northwest v Amselem

Facts: -Resident of a condo set up a succah on is balcony for purposes of celebrating Jewish religious holiday -Condo rules said that no owner may block balcony or make any constructions -Condo claimed that resident complied when he signed contract -Resident said violated Quebec Charter Issue: -Do the condo by-law conditions infringe s.2(a)? Saved under s.1 of Quebec Charter? -Did resident waive rights by signing contract? Ratio: -Religion: freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and linked to one’s self-

definition and spiritual fulfilment, allowing to foster connection with divine or with object of spiritual faith -Individual must show a sincere belief in undertaking to connect (good faith, not capricious or fictitious) -Credibility, consistent with other religious practices, expert evidence -Claimant need not show objective religious obligation to invoke FOR -1)FOR Claim:

o ->1) Practice or belief, having nexus with religion, personal connection with divine or subject of spiritual faith irrespective of whether particular practice or belief is required

-Either objectively required or subjectively believes that it is required by religion or that they sincerely believe that practice engenders a connection to spiritual faith as long as practice has nexus with religion

o ->2) Sincere in belief

-Religious fulfillment is subjective and personal

-Just has to be LIKE religion, does not have to be one -Does not matter if religion changed over time -2)Infringement:

o ->Needs to be more than trivial or insubstantial

-Waiving FOR:

o -> Waiver of any right must be voluntary, freely expressed and with a clear understanding of the true consequences and effects of so doing if it is to be effective

Analysis: -Resident believed that had to set up succah and could not use a communal one -Religious practice and sincerely held belief

-Intrusion cannot be reasonable limit on resident’s freedom -Resident had no time to negotiate right and therefore could not have given it up freely -No evidence that resident was aware that signing declaration amounted to waiver of rights to FOR -Did not waive rights -Clause infringes s.2(a) and cannot be saved Conclusion: -Have right to set up succah

-FOR CAN BE LIMITED WHEN CAUSE S HARM TO OTHERS-MUST HAVE SINCERE BELIEF IN PRACTICE -IMPUGNED CONDUCT/LAW MUST INTERFERE WITH ABILITY TO ACT W/ THAT PRACTICE-DO NOT ALWAYS NEED s.1 FOR JUSTIFICATIONMulani v Commision Scolaire Marguerite Bourgeoys

Facts: -Student wearing kirpan to school -School board banned this as it was dangerous weapon -Kid claimed violation of s.2(a) Issue: -Was school board’s decision prohibiting student’s wearing of kirpan infringement on s.2(a)? Is it justifiable under s.1? Ratio: -s.32: Does Charter Apply? -S.2(a): Violation? -S.1: saved? -S.24 or s.52? -Limit “prescribed by law” is within the meaning of s.1 -FOR can be limited where freedom to act in accordance with beliefs may cause harm to others or interferes with rights of others -Claimant of FOR infringement must Prove:

o ->1) They SINCERELY believe in a practice or belief that has a nexus with religion (not objective)o ->2) Impugned conduct of third party interferes in a manner that is NON-TRIVIL or NOT INSUBSTANTIAL with their

ability to act in accordance with that practice/belief

-Undue hardship defence against duty of reasonable accommodation in context of human right legislation -S.1 is not the only way that justification/balancing must be done with conflicting rights ->S.1 is not mechanical

o -When competing constitutional rights:o ->1) See how they relate to each othero ->2) Justification process under s.1

-May dispense with certain parts of s.1 analysis -Can argue internal limits of safety, security and morals (not successful in this case) but cautiously Analysis: -Charter applies to decision of council of commissioners/Code of Conduct ->Council is a creature of statute and derives its powers from statute -Boy proved that he sincerely believes that his faith requires him to wear kirpan (does not matter than other people chose not to, it

is only his belief) -Interference with Kirpan is neither trivial nor insignificant- forced to choose between religious conviction and education, he was

forced to transfer schools -Was not a minimal impairment of banning kirpan Conclusion: -Violation cannot be saved under s.1 -Decision nullified Dissent: -Don’t need sledgehammer of constitution, look with lesser things first like admin law -Don’t need always s.1 can use other balancing techniques

-NO BAROMETER TO MEASURE SERIOUSNESS OF LIMIT ON RELIGIOUS PRACTICE-LEGISLATURE MUST FIND BENEFIT IN LIMITAlberta v Hutterian Brethern of Wilson Colony

Facts: -Alberta required all person who drive to hold photo drivers licence -Purpose for preventing identity theft -Religious group opposed to having photo taken and said this requirement infringed on s.2(a) Issue: -Infringement of s.2(a)? Saved under s.1? Ratio: -S.32 -S.2(a) infringement

-S.1 justification -Legislatures can only be asked to impose measures that reason and evidence suggest will be beneficial -No barometer to measure seriousness of particular limit on a religious practice -Religion is a matter of faith, intermingled with culture Analysis: -Pressing and substantial goal: minimizing risk of identity theft -Photo requirement connected to goal and does not limit freedom more than required to achieve it -Negative impact does not outweigh benefits associated with universal photo requirement -Cost of not being able to drive does not rise to level of depriving Hutterian claimants of a meaningful choice as to their religious

practice or adversely impacting on Charter values -Obtaining alternative transport would impose additional economic cost on Colony-not prohibitive -Law does not compel taking of a photo, it merely Provides that anyone who wishes to obtain a driver’s licence must a permit a

photo be taken -Driving automobile is not a right but a privilege -Imposing financial cost does not rise to level of seriously affecting claimants’ right to pursue their religion -Not insignificant cost but not enough -Photos does not deprive embers of their ability to live in accordance with their beliefs -Deleterious effects while not trivial fall at less serious end -Impact of limit on religious practice associated is proportionate Conclusion: -Photo restriction justified under s.1 of Charter’ Dissent: -Would not prevent identity theft- law is not proportionate -Driving is not a privilege but is vital to everyday life -Other ways to prevent fraud -Significantly impaired on way of life

Brooker v Markovitz

Facts: -Wife sues husband to get full Jewish divorce -Husband claims FOR Ratio: -Giving damages against FOR contrary to public policy -Ordinarily would not enforce contract, balancing public interest and sincerity -Entitled to freedom until you start harming other people

R v NS

SCC refused to make a rule regarding wearing Ni-Kap during testifying Put issue to discretion of trial judge Hesitant to give internal limits to freedoms

ACCESS TO JUSTICE

-PREAMBLE OF CHARTER: JUSTICE DELAYED IS JUSTICE DENIED-CANNOT HAVE RULE OF LAW W/O ACCESSBCGEU v BC (AG)

Facts: -Pickets posted at entrances to courts in BC Issue: -Does a judge have the constitutional jurisdiction to make an injunction for a lawful strike? Does this violate s.2(b)? Saved by s.1? Ratio: -Preamble of Charter: Rule of law ->Cannot have Rule of Law without access -s.24(1): rights and freedoms are guaranteed by Charter and courts to Prove remedy in event of infringement -“Justice delayed is justice denied” Analysis: -Picketing would inevitably have effect of impeding access to courts ->Physical barrier and pressure not to cross line -Massive interference with legal and constitutional rights of citizens in BC -“Public” in nature being a courthouse -Injunction of picketing violates s.2(b) FOE -Pressing and substantial objective, rational connection, impairs as little as possible, proportionality -Need to maintain access to institution Conclusion: -Order justified

-RULE OF LAW PRINCIPLES: 1) SUPREME 2) NORMATIVE ORDER 3) RELATIONSHIP B/W STATE AND INDIVID REGULATED BY LAWBC (AG) v Christie

Facts: -Social Service Tax Amendment: meant to fund legal aid but went to general revenue -Christie serviced low income clients, many of whom could not pay for service -Act required Christie to submit tax to government even though fees on which services had been levied had not been paid -Christie claimed effect of tax made it impossible for some clients to retain him to pursue claims -Christie sought constitutionalization particular type of access to justice- access aided by lawyers Issue: -Is general access to legal services in relation to court proceedings dealing with rights and obligations a fundamental aspect of rule

of law? Ratio: -Right to be represented by a lawyer in a court where legal rights or obligations are at stake is a broad right -Rule of Law 3 Principles:

o ->1) Law is supreme over officials of gov’t as well as private individuals, precluding arbitrary powero ->2) Rule of Law requires creation and maintenance of an actual order of positive laws which preserves and embodies

general principles of normative ordero ->3) Relationship b/w state and individual be regulated by law

-Cannot amend judicial principles (ex: Rule of Law) Analysis: -Access to legal services in court proceedings is not a fundamental principle of Rule of Law -General access to legal services does not support right to legal counsel as a precondition of rule of law -Right to counsel is a limited right Conclusion: -Tax upheld

-BRING A CLAIM CHALLENGING LAW: 1) AFFECTED DIRECTLY BY LEGISLATION 2) GENUINE INTEREST AS A CITIZEN W/ NO OTHER MEANSMinister of Justice v Borowski

Facts: -B brought action against Minister to declare exceptions to criminal act of abortion were invalid -Denied ability to bring forth this claim as he was not an affected party Issue: -Do human rights in Bill of Rights protect a human foetus? Ratio: -In case of abortion exceptions in criminality, there is no one who bring the case forward (mother/dad wants it, foetus has no claim,

doctors are protected) who is directly affected -To bring a claim, P need only show:

o ->1) Affected directly by legislation

-Ex: Broken law, defencing oneself by saying it’s Ultra Vires

o ->2) Genuine Interest as a citizen in validity of legislation and no other means to bring before court

Analysis: -B was a concerned citizen and taxpayer -B was not directly affected -Need to give standing to someone outside pregnancy to challenge Conclusion: -B allowed to bring claim

Constitution Litigation

Classes of Ordinary Litigation -1) Litigations inter parties Charged with something, other party says it’s unconstitutional -2) Declaratory action ->No litigation/defendant, just interested person challenging validity of any statute if being charged, not guaranteed to bring

standing challenged ->Barowski: when might you be given standing to bring declaratory action ->Statute says you have to give notice ->Have to notify interested government ->Government does not have to show up, but they do have to be notified Everyone in Canada entitled to ask for standing (Thorson)

Constitutional Amendment

PART VPROCEDURE FOR

AMENDING CONSTITUTION OF

CANADA

General procedure for amending Constitution of Canada

38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by

(a) resolutions of the Senate and House of Commons; and(b) resolutions of the legislative assemblies of at least two-thirds of the Provinces

that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the Provinces.

Majority of members (2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a Province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).

Expression of dissent (3) An amendment referred to in subsection (2) shall not have effect in a Province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.

Revocation of dissent (4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.

Restriction on proclamation

39. (1) A proclamation shall not be issued under subsection 38(1)before the expiration of one year from the adoption of the resolution initiating the amendment procedure thereunder, unless the legislative assembly of each Province has previously adopted a resolution of assent or dissent.

Idem (2) A proclamation shall not be issued under subsection 38(1)after the expiration of three years from the adoption of the resolution initiating the amendment procedure thereunder.

Compensation 40. Where an amendment is made under subsection 38(1) that transfers Provincial legislative powers relating to education or other cultural matters from Provincial legislatures to Parliament, Canada shall Provide reasonable compensation to any Province to which the amendment does not apply.

Amendment by unanimous consent

41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each Province:(a) the office of the Queen, the Governor General and the Lieutenant Governor of

a Province;(b) the right of a Province to a number of members in the House of Commons not

less than the number of Senators by which the Province is entitled to be represented at the time this Part comes into force;

(c) subject to section 43, the use of the English or the French language;(d) the composition of the Supreme Court of Canada; and(e) an amendment to this Part.

Amendment by general procedure

42. (1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance withsubsection 38(1):(a) the principle of proportionate representation of the Provinces in the House of

Commons prescribed by the Constitution of Canada;(b) the powers of the Senate and the method of selecting Senators;(c) the number of members by which a Province is entitled to be represented in

the Senate and the residence qualifications of Senators;(d) subject to paragraph 41(d), the Supreme Court of Canada;(e) the extension of existing Provinces into the territories; and(f) notwithstanding any other law or practice, the establishment of new

Provinces.

Exception (2) Subsections 38(2) to (4) do not apply in respect of amendments in relation to matters referred to in subsection (1).

Amendment of Provisions relating to some but not all Provinces

43. An amendment to the Constitution of Canada in relation to any Provision that applies to one or more, but not all, Provinces, including(a) any alteration to boundaries between Provinces, and(b) any amendment to any Provision that relates to the use of the English or the

French language within a Province,may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each Province to which the amendment applies.

Amendments by Parliament

44. Subject to sections 41 and  42 , Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

Amendments by Provincial legislatures

45. Subject to section 41, the legislature of each Province may exclusively make laws amending the constitution of the Province.

Initiation of amendment procedures

46. (1) The procedures for amendment under sections 38, 41, 42 and43 may be initiated either by the Senate or the House of Commons or by the legislative assembly of a Province.

Revocation of authorization

(2) A resolution of assent made for the purposes of this Part may be revoked at any time before the issue of a proclamation authorized by it.

Amendments without Senate resolution

47. (1) An amendment to the Constitution of Canada made by proclamation under section 38, 41, 42 or  43  may be made without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing its issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution.

Computation of period (2) Any period when Parliament is prorogued or dissolved shall not be counted in computing the one hundred and eighty day period referred to in subsection (1).

Advice to issue proclamation

48. The Queen's Privy Council for Canada shall advise the Governor General to issue a proclamation under this Part forthwith on the adoption of the resolutions required for an amendment made by proclamation under this Part.

Constitutional conference

49. A constitutional conference composed of the Prime Minister of Canada and the first ministers of the Provinces shall be convened by the Prime Minister of Canada within fifteen years after this Part comes into force to review the Provisions of this Part.