Federalism and the Charter

Federalism and the Charter: Leading Constitutional Decisions

Peter H. Russell
Rainer Knopff
Ted Morton
Copyright Date: 1989
Pages: 814
https://www.jstor.org/stable/j.ctt807tb
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  • Book Info
    Federalism and the Charter
    Book Description:

    This extensive revision of the landmark Leading Constitutional Decisions brings together recent Charter cases with the classical cases on the Canadian Constitution. An introductory essay traces the evolution and distinctive features of judicial review in Canada and includes references to the Constitution Act, 1982, and the important changes resulting from it.

    eISBN: 978-0-7735-8428-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. PREFACE TO THE FIFTH EDITION
    (pp. 1-2)
    PETER H. RUSSELL
  4. Introduction
    (pp. 3-28)

    Many Canadians expressed shock and surprise when the Supreme Court of Canada was called upon in the spring of 1981 to determine the constitutionality of the federal government’s plan to proceed unilaterally with its proposed restructuring of Canada’s Constitution. “Isn’t it strange,” they asked, “for the Court to be involved in such apolitical question?” This question reflects the fact that Canadians have little understanding of the political significance of judicial interpretation of the constitution. This is not surprising given the quiet, unheralded way in which judicial review became an important part of Canada’s constitutional system.

    It is in keeping...

  5. PART ONE: THE DIVISION OF POWERS
    • A: THE PRIVY COUNCIL’S LEGACY
      • 1. Severn v. The Queen, 1878
        (pp. 31-36)

        ~ This early Supreme Court of Canada decision is placed at the beginning of this series of Privy Council decisions to indicate the approach to constitutional interpretation taken by the Canadian Supreme Court judgesbeforethe Judicial Committee of the Privy Council began to shape Canada’s constitutional jurisprudence.

        The case provided the first opportunity for the Supreme Court of Canada to interpret the B.N.A. Act. The case arose out of charges brought against Severn, a liquor manufacturer who was licensed under federal customs legislation, for violating an Ontario act requiring brewers to purchase provincial licences before selling liquor by wholesale....

      • 2. Citizens Insurance Co. v. Parsons; Queen Insurance Co. v. Parsons, 1881
        (pp. 37-42)

        ~ The constitutional issue in this case concerned the validity of the Ontario Fire Insurance Policy Act which prescribed uniform conditions for all fire insurance contracts unless variations from the statutory conditions were properly indicated. Parsons, the respondent in the case, had taken actions against two fire insurance companies to obtain compensation for damages caused by fire in a warehouse insured by the companies. The companies’ defence was that Parsons should not receive compensation because he had failed to observe conditions which had been written into the companies’ policies or which were prescribed by the Ontario statute. Parson’s reply was...

      • 3. Russell v. The Queen, 1882
        (pp. 43-49)

        ~ In the case ofRussellv.The Queenthe Judicial Committee of the Privy Council was confronted for the first time with what has undoubtedly been the classic issue in the Canadian division of powers—the contest between the Dominion’s “peace, order and good government” power and the provinces’ power in relation to “property and civil rights” and “all matters of a merely local or private nature in the province.” Here the Privy Council ruled the Dominion’s temperance legislationintra vireson the grounds that since the subject matter of the legislation did not belong to any of the...

      • 4. Liquidators of the Maritime Bank of Canada v. Receiver General of New Brunswick, 1892
        (pp. 50-52)

        ~ While this case did not deal directly with the division of legislative powers, it did provide the occasion for Lord Watson to express a conception of Canadian federalism which underlies most of the Judicial Committee’s decisions on the Canadian constitution.

        The immediate issue in the case was whether the Government of New Brunswick could use Crown prerogative as a basis for claiming priority over other creditors seeking to recover funds from the liquidators of the Maritime Bank. The federal government endeavoured to deny New Brunswick’s claim on the grounds that Confederation had severed any direct relationship between the Crown...

      • 5. Attorney General of Ontario v. Attorney General of Canada (Local Prohibition Case), 1896
        (pp. 53-60)

        ~ Competition between Ontario and the federal government to regulate the consumption and sale of liquor was a major source of constitutional litigation in the last two decades of the nineteenth century. As we have seen a federal scheme for a system of local prohibition was upheld in theRussellcase. InHodgev.The Queen¹ the Judicial Committee upheld an Ontario scheme for licensing taverns and retail liquor outlets. But two years later, the Privy Council, without giving reasons, ruledultra viresa federal law (the McCarthy Act) which provided a scheme for the appointment of local liquor licensing...

      • 6. In re Board of Commerce Act and Combines and Fair Prices Act, 1919,1922
        (pp. 61-67)

        ~ The federal legislation reviewed in this case was introduced after World War One to break up business combines and monopolies and to prevent the hoarding of basic necessities. Although the legislation was prompted by profiteering in scarce commodities which had developed after the war, it was cast in the form of permanent legislation.

        The Privy Council viewed legislation limiting the commercial liberty of entrepreneurs as essentially an interference with the property and civil rights of the inhabitants of the Provinces and hence subject to exclusive provincial jurisdiction. Viscount Haldane considered that the context in which the legislation was enacted...

      • 7. Fort Frances Pulp and Power Co. v. Manitoba Free Press, 1923
        (pp. 68-72)

        ~ The Privy Council in this case gave a positive application for the “emergency doctrine” which it had first enunciated inthe Board of Commerce Actcase. The outbreak of a great war was identified as one of those extraordinary contingencies in the life of the nation which could justify the national government’s intervention in matters normally subject to provincial jurisdiction. It should be noted that the statutes and orders challenged in this case had been specifically designed to deal with the wartime and immediate postwar emergency. The Judicial Committee would ordinarily have characterized the laws controlling the price and...

      • 8. Toronto Electric Commissioners v. Snider, 1925
        (pp. 73-77)

        ~ In this case a major piece of national legislation, the Industrial Disputes Investigation Act, 1907, was cut down by the Privy Council’s restrictive interpretation of the Dominion’s peace, order and good government power. The subject matter of this statute—the establishment of national conciliation services to avoid work stoppages during labour disputes in some of the country’s most vital industries such as mines, transportation and communication agencies and public service utilities—did not meet Viscount Haldane’s “emergency” test. It should be noted that in this particular case the provisions of the Act were being applied not to an undertaking...

      • 9. Proprietary Articles Trade Association v. Attorney General of Canada, 1931
        (pp. 78-84)

        ~ In 1929 the federal government referred to the Supreme Court of Canada the question of the validity of the Dominion’s anti-combines legislation after doubts as to the constitutionality of the legislation had been raised by counsel and judges in the provincial courts. The Supreme Court unanimously declared the legislationintra vires. The Proprietary Articles of Trade Association which had been charged with an infraction of the anti-combines legislation appealed this decision to the Privy Council. It was joined in this appeal by the governments of Ontario and Quebec.

        Although counsel for the Dominion had cited the federal commerce power...

      • 10. In re Regulation and Control of Aeronautics in Canada, 1932
        (pp. 85-92)

        ~ An important issue in any federal system is the way in which the federal state’s capacity for participating in international agreements is affected by its internal division of powers between national and local governments. Basic to this question is the distinction between the power of entering into treaties with other states and the power of implementing such treaties through changes in the domestic legal system. In Canada, as in the United States and Australia, the federal government has the power to sign treaties and enter into international agreements on all subjects. It is only in connection with the implementation...

      • 11. In re Regulation and Control of Radio Communication in Canada, 1932
        (pp. 93-96)

        ~ The question of Parliament’s capacity to implement international agreements entered into by Canada as an independent nation was the central issue in theRadiocase of 1932. In 1927, Canada with seventy-nine other countries had signed the international Radio Telegraph Convention. This Convention was ratified by the Canadian government without any reference to the British Empire. To implement its provisions Parliament subsequently enacted the Radio Telegraph Act. This reference initiated by the federal government was designed to test the Dominion’s general capacity for regulating radio communications in Canada.

        In the crucial paragraph of the Judicial Committee’s judgment which refers...

      • 12. Attorney General of Canada v. Attorney General of Ontario (Employment and Social Insurance Act Reference), 1937
        (pp. 97-100)

        ~ The Employment and Social Insurance Act, 1935, which the Privy Council ruledultra viresin this case, was the first measure of the Conservative government’s social reform program (the so-called “New-Deal” legislation) which was introduced by Prime Minister R.B. Bennett at the beginning of the 1935 session of Parliament. The Liberal opposition under Mackenzie King’s leadership, while approving the principle of the social legislation, contended that it was beyond Parliament’s jurisdiction. Accordingly, following the defeat of the Bennett government in the general election of October, 1935, the King administration referred the question of the validity of eight of the...

      • 13. Attorney General of British Columbia v. Attorney General of Canada (Natural Products Marketing Act Reference), 1937
        (pp. 101-103)

        ~ The Natural Products Marketing Act, 1934 (as amended in 1935) was another of the federal statutes submitted to the courts in the series of New Deal reference cases initiated by the King administration in 1935. This statute, provoked by the severe consequences of the worldwide depression in agricultural markets, was designed to provide orderly marketing arrangements for natural products. In framing the legislation the Dominion draughtsmen had been sensitive to the difficulties of divided jurisdiction in the field of marketing legislation and had included provisions which anticipated the need for cooperation between national and provincial marketing agencies. Indeed each...

      • 14. Attorney General of Canada v. Attorney General of Ontario (Labour Conventions Case), 1937
        (pp. 104-110)

        ~ The Canadian government first faced the question of whether it could “invade” provincial jurisdiction in order to carry out international labour conventions when Canada became a member of the International Labour Organization after World War I. At that time it took the cautious course and, following the advice of the federal Department of Justice, left the implementation of five of the six conventions adopted at the first session of the International Labour Conference to the provinces. This procedure was approved by the Supreme Court in 1925 when it was asked to review the proper method of implementing Canada’s obligations...

      • 15. Atlantic Smoke Shops Limited v. Conlon, 1943
        (pp. 111-117)

        ~ There is one element in the division of powers about which the intentions of the framers of the constitution seem reasonably clear: in the allocation of financial powers the main sources of revenue were to be assigned to the federal government. While the B.N.A. Act restricts the provinces to “direct taxation within the province” (section 92[2]), it grants the central government the power to raise funds “by any mode or system of taxation” (section 91[3]). Section 122 explicitly brings customs and excise duties under the control of the Dominion. Thus, of the three main tax sources which existed in...

      • 16. Attorney General of Ontario v. Canada Temperance Federation, 1946
        (pp. 118-121)

        ~ This case originated in 1939 when the Government of Ontario referred the question of the validity of the Canada Temperance Act, 1927, to the Supreme Court of Ontario. As this Act had substantially the same provisions as the Act which had been upheld in 1882 by the Judicial Committee inRussell v. The Queen, the real object of the reference was to challenge that decision and consolidate the much narrower construction of the peace, order and good government clause which the Privy Council had been developing since 1882. This challenge to the central Parliament’s legislative capacities brought about a...

      • 17. Attorney General of Ontario v. Attorney General of Canada (References re Abolition of Privy Council Appeals), 1947
        (pp. 122-130)

        ~ In this decision the Judicial Committee of the Privy Council upheld the federal Parliament’s power to abolish all Canadian appeals to the Privy Council and to make the Supreme Court Canada’s highest court of appeal. Legislation to accomplish this purpose had been introduced in the House of Commons in 1939. The legislation took the form of an amendment to the Supreme Court Act under which the Supreme Court would exercise “exclusive ultimate appellate civil and criminal jurisdiction within and for Canada.”

        When the original Supreme Court Act was enacted in 1875, Sir John A. Macdonald’s Conservatives had opposed severing...

    • B: THE SUPREME COURT SINCE 1949
      • 18. Johannesson v. West St. Paul, 1952
        (pp. 131-136)

        ~ This is the first case following the abolition of Privy Council appeals which provided an occasion for the Supreme Court to indicate the direction in which it might develop Canadian constitutional law in relation to two major issues: the peace, order and good government power and the power to implement Canadian treaties.

        The case originated in private litigation between Johannesson, the operator of a commercial aviation enterprise in western Canada and the Manitoba town of West St. Paul which had passed a by-law preventing Johannesson from establishing an aerodrome in a location he had chosen in that municipality. Johannesson...

      • 19. Reference re The Farm Products Marketing Act (Ontario), 1957
        (pp. 137-144)

        ~ In 1957 the federal government submitted to the Supreme Court of Canada eight questions which were designed to measure the extent to which a province could provide a comprehensive system of regulatory boards for organizing the marketing of farm products within the province. Three of the questions concerned the validity of two provisions of Ontario’s Farm Products Marketing Act authorizing a system of marketing by means of a central pool and distribution of payments to producers and a proposed amendment which would enable local marketing boards to purchase and market the surplus of a regulated product using a system...

      • 20. Reference re Offshore Mineral Rights of British Columbia, 1967
        (pp. 145-151)

        ~ In 1965 the federal government referred to the Supreme Court the question of the ownership and control of the minerals in the seabed under Canadian waters off the British Columbia coast. The reference to the Court was made at a time when the question was at the centre of a hot political controversy between Ottawa and a number of provinces. Mr. Pearson’s government referred this matter to the Court presumably because it hoped a favourable decision would strengthen its hand in negotiations with the provinces.

        The joint opinion of the Court was totally favourable to the federal government. It...

      • 21. Attorney General of Manitoba v. Manitoba Egg and Poultry Association (Chicken and Egg Reference), 1971
        (pp. 152-161)

        ~ The more pragmatic approach to the federal trade and commerce power exhibited by the Supreme Court in 1957 in theOntario Farm Products Marketing Referencedid not usher in a new era of federal intervention in the Canadian economy. TheCarnation¹ case in 1968 provided the only occasion in the 1960s on which the Supreme Court was called upon to consider the scope of the trade and commerce power. But in this case, section 91 (2), far from serving as a positive basis for federal power, was dismissed as grounds for objecting to provincial economic regulations which impinged on...

      • 22. Reference re Anti-Inflation Act, 1976
        (pp. 162-178)

        ~ In the fall of 1975 the federal government launched a comprehensive programme of wage and price controls. The Anti-Inflation Act authorized the federal government to control the level of incomes, prices and profits in key sectors of the private sector (firms with five hundred or more employees, construction firms with twenty or more employees, and professionals). It applied directly to the federal public sector and to government employees of provinces which opted into the scheme. The authority could be exercised for up to three years and could be extended by Order-in-Council with the approval of both Houses of Parliament....

      • 23. Public Service Board v. Dionne, 1978
        (pp. 179-187)

        ~ In 1978 the Supreme Court decided three cases dealing with legislative jurisdiction in relation to television broadcasting. In the first of these cases,Capital Cities Communicationsv.C.R.T.C.,¹ the Court dismissed a challenge to federal regulations authorizing cable television operators to delete and substitute commercials on programmes broadcast from U.S. stations. The majority decision was based primarily on the Privy Council’s decision in theRadiocase which assigned jurisdiction to the federal Parliament over the regulation of the transmission and reception of radio waves on the basis of both the treaty implementing power and section 92(10)(a). Chief Justice Laskin...

      • 24. Canadian Industrial Gas & Oil Ltd. v. Government of Saskatchewan, 1978
        (pp. 188-202)

        ~ In the 1970s jurisdiction over natural resources became a focal point of constitutional conflict between Ottawa and provinces well endowed with natural resources, especially scarce energy resources such as oil and natural gas. TheC.I.G.O.L.case in 1978 and theCentral Canada Potashcase the following year plunged the Supreme Court into this area of controversy. Both cases originated in private litigation between private companies and the Government of Saskatchewan, but, given the important constitutional issues involved, several provinces intervened on Saskatchewan’s side while the federal government intervened to support the corporate challenge. The Supreme Court’s decision in both...

      • 25. Central Canada Potash Co. Ltd. and Attorney General of Canada v. Government of Saskatchewan, 1979
        (pp. 203-211)

        ~ The background to this case involves a complex series of international negotiations between the Province of Saskatchewan, the State of New Mexico, trade officials in Washington and Ottawa and a number of multinational mining companies. These negotiations began in the 1960s when sales of Saskatchewan potash in the U.S. fertilizer market posed a severe threat to New Mexico based mines. By 1967 potash was selling in the United States at a price considerably below the break-even point for the older, less efficient New Mexico mines. This prompted the Governor of New Mexico to seek help from Washington in the...

      • 26. The Queen v. Hauser, 1979
        (pp. 212-230)

        ~ The issue in theHausercase concerns the division of powers in the general area of law enforcement. The fact that the Supreme Court has been called upon in recent years to adjudicate a number of disputes in this area shows how the climate of intense federal-provincial rivalry has spread from the economic and social policy areas to matters relating to the coercive police powers of the state.

        Section 91(27) of the B.N.A. Act assigns jurisdiction over the substantive content of criminal law and the rules of criminal procedure to the federal Parliament. While Parliament has shaped much of...

      • 27. Residential Tenancies Reference, 1979
        (pp. 231-242)

        ~ In the immediate pre-Charter era when constitutional litigation was very much on the rise, no section of the Constitution generated as many cases as section 96 of the B.N.A. Act. Section 96 gives the federal government the power to appoint the judges of the superior, district and county courts of the provinces. It would seem an odd section to serve as a basis for judicial review of legislation for, on its face, it does not deal with legislative power. However, the courts have reasoned that if provinces were free to pass legislation restructuring their courts and transfer the traditional...

      • 28. Labatt v. Attorney General of Canada, 1980
        (pp. 243-252)

        ~ In theLabattcase the Supreme Court rejected the trade and commerce power as a basis for federal consumer protection legislation. This decision indicated that the Court’s majority was inclined to set very tight limits on exercises of federal regulatory power not aimed primarily at interprovincial or international trade.

        Back in 1881 in theParsons¹ case, Sir Montague Smith referred to “general regulation of trade affecting the whole Dominion” as another possible application of the trade and commerce power in addition to the regulation of interprovincial and international activities. The modern Supreme Court’s reluctance to give much scope to...

      • 29. McEvoy v. Attorney General of New Brunswick, 1983
        (pp. 253-258)

        ~ InMcEvoythe Supreme Court held for the first time that section 96 and those other sections of the Constitution providing for the qualifications, tenure and remuneration of section 96 judges restrict not only provincial legislative power but federal legislative power as well. This case makes it clear that the Canadian Constitution does contain a separation of powers doctrine so far as the judiciary is concerned. Neither the federal or provincial legislatures can strip the provincial superior courts of their essential functions.

        This case has an interesting background. Legislative jurisdiction over criminal trials rests exclusively with the federal Parliament....

      • 30. Attorney General of Canada v. Canadian National Transportation, 1983
        (pp. 259-272)

        ~ The political importance ofC.N. Transportationmay be overlooked because the case appears to deal with the rather technical question of jurisdiction over the prosecution of criminal offences. But the case’s real significance lies in the opinion of Justice Brian Dickson—soon to become Chief Justice of the Supreme Court. Dickson’s treatment of the trade and commerce power could pave the way to a considerable expansion of the federal parliament’s powers of economic regulation.

        The immediate issue in the case was whether the section of the federal Combines Investigation Act giving the federal Attorney General control of prosecutions under...

      • 31. The Queen v. Crown Zellerbach Canada Ltd., 1988
        (pp. 273-288)

        ~ Constitutional interpretation never stands still—for long. In theAnti-Inflation Referencethe Court’s majority supported Justice Beetz’s view that the peace, order and good government power could serve as a constitutional basis only for (i) temporary legislation dealing with a national emergency, or (ii) legislation dealing with “distinct subject matters which do not fall within any of the enumerated heads of s. 92 and which, by nature, are of national concern”.¹ Subsequent decisions indicated that this second use of peace, order and good government might be wide enough to accommodate a “provincial inability” test which would justify federal legislation...

  6. PART TWO: RIGHTS AND FREEDOMS
    • A: FUNDAMENTAL RIGHTS AND FREEDOMS IN THE B.N.A. ACT
      • 32. The Alberta Press Case, 1938
        (pp. 291-298)

        ~ Until 1982, the Canadian Constitution, unlike that of the United States, did not contain a comprehensive Bill of Rights protecting a list of fundamental civil liberties from legislative encroachment. The enactment of the Canadian Bill of Rights in 1960 did not change that situation. The Canadian Bill of Rights was simply a federal statute, not an amendment to the B.N.A. Act. As such, it did not apply to the provinces and even at the federal level could be set aside by ordinary federal legislation. Besides, as the cases in section B below show, the Supreme Court has been reluctant...

      • 33. Saumur v. Quebec and Attorney General of Quebec, 1953
        (pp. 299-316)

        ~ In the 1950s the Supreme Court decided seven Quebec appeals which raised important civil liberties issues. All involved policies of the Quebec government directed against political or religious minorities in the Province of Quebec. In all seven the Supreme Court reversed the Quebec Court of Appeal and upheld the claim of the political or religious minority against the Quebec government. Only three of the cases involved a constitutional challenge based on the B.N.A. Act.¹ The cases indicated that despite the absence of either a constitutional or statutory Bill of Rights the Canadian legal system provided considerable protection for the...

      • 34. Switzman v. Elbling and Attorney General of Quebec, 1957
        (pp. 317-324)

        ~ The legislation challenged before the Supreme Court of Canada in this case was the Act Respecting Communistic Propaganda, the so-called Padlock Law, which the Quebec Legislature had passed in 1937. As its title implies, the object of this Act was to prohibit the propagation of communist ideology in the Province of Quebec. The litigation which led to this appeal began in 1949 when Switzman, the tenant of premises in Montreal, was sued by his landlord, Freda Elbling, for cancellation of the lease and damages on the grounds that the premises had been used by Switzman for the illegal purpose...

      • 35. Morgan v. Attorney General of P.E.I., 1976
        (pp. 325-332)

        ~ TheMorgancase concerned the extent to which elements of a common Canadian citizenship might provide another possible basis for constitutional protection of some basic rights and freedoms at least from provincial encroachments. This possibility was originally opened up by theUnion Colliery¹ case of 1899 in which the Privy Council overruled British Columbia legislation prohibiting persons of Chinese descent, whether foreigners or citizens, from being employed in mines. The Privy Council found that the legislation invaded the exclusive jurisdiction over “Nationalization and Aliens” which section 91(25) assigns to the federal Parliament. The Privy Council’s decision extended that power...

      • 36. Attorney General of Canada and Dupond v. Montreal, 1978
        (pp. 333-346)

        ~The Supreme Court rendered two judgments in 1978 in appeals involving constitutional challenges to provincial laws allegedly infringing fundamental rights and freedoms. In these two cases,McNeilandDupond, the Court upheld the provincial legislation. The opinions of the Court’s majority indicated that the contemporary Supreme Court was not inclined to give much weight to those constitutional constraints on provincial legislation affecting civil liberties which had been elucidated by Supreme Court judges in the 1950s. These decisions provided additional ammunition for advocates of a Constitutional Bill of Rights.

        TheMcNeil¹ case was initiated by a journalist who was prevented from...

    • B: THE CANADIAN BILL OF RIGHTS
      • 37. The Queen v. Drybones, 1970
        (pp. 347-358)

        ~ A new chapter in Canadian civil liberties was inaugurated in 1960 with the enactment of the Canadian Bill of Rights. Technically the new Bill of Rights was not an addition to Canada’s formal Constitution. It was passed as an ordinary Act of the federal Parliament. As such it did not apply to the provinces and could be set aside by subsequent federal legislation. The Act had two main clauses. Section 1 declared that in Canada certain fundamental rights and freedoms “have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex.”...

      • 38. Attorney General of Canada v. Lavell and Bédard, 1974
        (pp. 359-374)

        ~ The Supreme Court’s decision in theLavellcase indicates that a majority of the judges felt the Court had gone too far in an “activist” direction inDrybones. The majority opinion does not retreat from the position established inDrybonesthat the Bill of Rights can render inoperative legislation which clearly violates rights enshrined in the Bill, but it did considerably water down the significance of the right to equality before the law.

        The decision dealt with appeals in two cases involving Indian women who claimed that section 12(1)(b) of the Indian Act infringed their right to equality before...

      • 39. Hogan v. The Queen, 1975
        (pp. 375-384)

        ~ Rendering conflicting legislation inoperative is not the only way in which the courts can give effect to a Bill of Rights. A bill may also serve as a set of interpretative guidelines directing the judiciary to read the rights it enshrines into the law where the law is silent or ambiguous. The Canadian Bill of Rights has been given effect in this way in several decisions of the Supreme Court. For instance, inLowry and Lepper¹ the Court ruled that the right to a fair hearing in section 2(e) of the Bill of Rights gave an accused the right...

    • C: THE CHARTER OF RIGHTS AND FREEDOMS
      • 40. Law Society of Upper Canada v. Skapinker, 1984
        (pp. 385-392)

        ~ The Canadian Charter of Rights and Freedoms came into force on April 17, 1982. Immediately there was a rush of Charter litigation in the lower courts but it took many months for the first cases to work their way up through the trial courts and intermediate courts of appeal to the Supreme Court of Canada.¹

        InSkapinkerwe have the Supreme Court’s first Charter decision, rendered May 3,1984. With a roll of drums and a blast of trumpets, the Court’s opinion, written by Justice Estey, heralds the arrival of a new era in Canadian judicial review. Justice Estey employs...

      • 41. Singh v. Minister of Employment and Immigration, 1985
        (pp. 393-403)

        ~ The Supreme Court’s decision inSinghshows that not all members of the Court share the same degree of enthusiasm for the Charter. The original claim that gave rise to the case was that the absence of a right to a hearing in the procedures under the Immigration Act for determining whether a person is entitled to stay in Canada as a political refugee violated section 7 of the Charter of Rights. But when the matter came before the Supreme Court the parties were asked to make submissions on how the Canadian Bill of Rights should apply to the...

      • 42. The Queen v. Big M Drug Mart Ltd., 1985
        (pp. 404-414)

        ~Big M Drug Martclearly demonstrates the contrast between the Supreme Court’s treatment of the Charter of Rights and Freedoms and its treatment two decades earlier of the Canadian Bill of Rights. In 1963 inRobertson and Rosetanni¹ the Court, with only one dissent, found that the federal Lord’s Day Act did not contravene the right to freedom of religion in the Canadian Bill of Rights. Now in Big M the Court strikes down the federal Lord’s Day Act on the grounds that it violates the right to freedom of conscience and religion in section 2 of the Chaner....

      • 43. Operation Dismantle Inc. v. the Queen, 1985
        (pp. 415-425)

        ~ Operation Dismantle was a coalition of “peace” and anti-nuclear groups opposed to the government’s decision to allow the U.S. to test unarmed cruise missiles over northern and western Canada. Having failed in the political arena, the coalition turned to the courts and challenged the legality of the Cabinet’s decision. Their statement of claim alleged that the Cruise Missile testing violated Canadians’ rights to life and security of the person protected by section 7 of the Charter. For a remedy, they asked the court to issue an injunction to stop the testing. In effect they were asking the courts to...

      • 44. The Queen v. Therens, 1985
        (pp. 426-437)

        ~Therensis the first Supreme Court decision dealing with section 24, the remedy section of the Charter. Experience with the Canadian Bill of Rights demonstrated the truth of the old adage that “there is no right without a remedy”. Section 24(1) permits anyone whose rights or freedoms, as guaranteed in the Charter, have been infringed to “apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” Remedies available under 24(1) cover all the traditional judicial remedies ranging from monetary compensation to declaring a law unconstitutional. Section 24(2) adds...

      • 45. Reference re B.C. Motor Vehicle Act, 1985
        (pp. 438-451)

        ~ The B.C. Motor Vehicle Reference is an example of a case that is relatively unimportant with respect to the policy issue at stake but very significant in terms of its impact on constitutional interpretation and development. While the fate of s. 94(2) of British Columbia’s Motor Vehicle Act will soon be forgotten, the Supreme Court’s decision in this case has gone on to be one of the Court’s most frequently cited judgements.

        Section 94(1) of British Columbia’s Motor Vehicle Act made it an offense for a person to drive if his license had been revoked or he had been...

      • 46. The Queen v. Oakes, 1986
        (pp. 452-459)

        ~ The Charter will “judicialize politics and politicize the judiciary” in part because interpretive controversies over the meaning of vaguely formulated rights are political as well as legal controversies, with policy consequences extending well beyond the confines of the particular case. Giving concrete meaning to broad constitutional standards, however, does not exhaust the political aspects of the judicial task. If a right, having been defined, is found to be violated, the court must ask whether the violation is saved by section 1 of the Charter, which permits such “reasonable limits prescribed by law as are demonstrably justified in a free...

      • 47. Retail, Wholesale and Department Store Union v. Dolphin Delivery, 1986
        (pp. 460-470)

        ~ The Charter raises questions concerning not only the meaning of its various rights but also the scope of their application. Such questions are raised particularly by section 52, which applies the Charter to “any law of Canada,” and section 32, which applies it to “the Parliament and government of Canada” and “the legislature and government of each province.” The latter section would appear to limit the Charter’s applicability to what the Americans in similar circumstances call “state action.” On this interpretation, which the Court accepts in theDolphin Deliverycase, the Charter would not apply to purely private violation...

      • 48. Edwards Books and Art Ltd., v. The Queen, 1986
        (pp. 471-493)

        ~ TheEdwardscase involved a challenge to Ontario’s Retail Business Holidays Act, which, like the Federal Lord’s Day Act, prohibited Sunday shopping. The judges unanimously concluded, however, that the Ontario Act was not intended to establish a particular religious faith, but had the secular purpose of promoting a common day of rest. If this Act infringed section 2 of the Charter, it was because of its effect, not its purpose.

        Ontario’s prohibition of Sunday retailing was subject to exceptions for such businesses as corner stores, pharmacies and gas stations, as well as for educational and recreational services. It also...

      • 49. Alberta Labour Reference (1987)
        (pp. 494-514)

        ~ Alberta had enacted legislation that prohibited strikes and lockouts for three classes of public service employees: firemen, policemen, and hospital workers. The government maintained that the no-strike laws were necessary to insure the continued provision of essential services. The legislation provided for compulsory arbitration and also limited the matters that could be considered by an arbitration board. The Alberta Union of Public Employees had always opposed the legislation. In 1983, the Union announced that it was planning to challenge the constitutionality of the laws as a violation of the freedom of association provision of the recently adopted Charter of...

      • 50. Morgentaler v. the Queen (1988)
        (pp. 515-546)

        ~ TheMorgentalerdecision has been the most publicized and most controversial Charter decision to date. This is due in part to the emotional and divisive character of its subject matter—abortion. It also relects the flamboyant personality of the appellant. Pro-choice crusader Dr. Henry Morgentaler’s victory culminated almost twenty years of civil disobedience in protest of Canada’s abortion law. In the early seventies Morgentaler openly defied the abortion law by performing unauthorized abortions in his Montreal clinic. In three successive trials, juries refused to convict him. However, the Quebec Court of Appeal (1974) overturned his first jury acquittal and...

      • 51. Borowski v. Minister of Justice of Canada, 1988
        (pp. 547-556)

        ~ An Account of the Hearing before the Supreme Court of Canada, October 3 and 4, 1988

        On September 8, 1978, in a Regina Court of Queen’s Bench, Joe Borowski filed his statement of claim challenging the constitutionality of Canada’s abortion law. On October 3 and 4, 1988, the Supreme Court finally heard his case. In the interim, Borowski has become to Canada’s pro-life movement what Henry Morgentaler is to the pro-choice camp—a hero, a symbol, an opportunity to win in the courts what they could not win in Parliament.

        Like Morgentaler, Borowski based his challenge on the new...

      • 52. Quebec v. Ford et al. (Quebec Sign Case), 1988
        (pp. 557-581)

        ~ The decision which the Supreme Court of Canada rendered on December 15, 1988 striking down Quebec’s French only sign law is one of the Court’s most important Charter decisions. The decision moves constitutional jurisprudence in two different directions simultaneously: while it embraces a very wide interpretation of “freedom of expression” as a constitutional right, it also establishes a very broad basis for legislatures to use the power they have under section 33 of the Charter to override constitutional rights and freedoms. In addition to these important developments in the interpretation of the Charter, the decision had a major impact...

      • 52A. Andrews v. Law Society of British Columbia, 1989
        (pp. 582-604)

        ~Andrewsis the first case based exclusively on section 15 to be decided by the Supreme Court. The case arises out of circumstances identical to those of Skapinker, who took the first major Charter case to the Supreme Court, but who had to rely on section 6 “mobility rights” because section 15 had not yet come into effect.¹ LikeSkapinker,Andrewswill be remembered not so much for the precise legal issue it settled as for the interpretive orientation it established. Just asSkapinkerprovided the Court with the opportunity to indicate the general approach it would take to...

    • D: LANGUAGE AND EDUCATION RIGHTS
      • 53. Ottawa Separate Schools Trustees v. Mackell,1917
        (pp. 605-611)

        ~ The B.N. A. Act contains only two sections explicitly recognizing constitutional rights of groups or individuals. These are sections 93 and 133. The rights enshrined in these sections do not take the form of abstract universal rights but are specific to the Canadian historical experience reflecting the accommodation of European cultures upon which Confederation was based. The two cases set out below display contrasting styles of constitutional interpretation. TheMackellcase shows how the Privy Council gave the narrowest possible interpretation of the minority education right in section 93, whereas the Supreme Court in theBlaikiecase expressed an...

      • 54. Attorney General of Quebec v. Blaikie, 1979
        (pp. 612-618)

        ~ Section 133 of the B.N.A. Act established a limited bilingual regime at the federal level of government and for the Province of Quebec. It provided (a) that either English or French may be used in debates in the federal and Quebec legislatures; (b) that both languages shall be used in the records of these legislatures; (c) that either language may be used in courts established by the federal government or in the courts of Quebec; and (d) that Acts passed by the federal or Quebec legislature be printed and published in English and French. When Manitoba entered Confederation in...

      • 55. Attorney-General of Quebec v. Association of Quebec Protestant School Boards, 1984
        (pp. 619-626)

        ~ This case dealt with two of the most divisive and longstanding issues in Canadian politics—language and education. It was a case that became inevitable the day the Charter of Rights was proclaimed. There was a direct, unavoidable, and intentional conflict between the “Quebec Clause” in sections 71 and 72 of Bill 101, and the “Canada Clause” in section 23(1)(b) of the Charter of Rights. Bill 101, also known as the Charter of the French Language, was the centrepiece of separatist Premier René Levesque’s policy to preserve the “French fact” in Canada. Sections 72-73 effectively limited English-language instruction to...

      • 56. Reference Re Manitoba Language Rights, 1985
        (pp. 627-643)

        ~ TheManitoba Language Referenceis a dramatic illustration of the statecraft the Supreme Court may be called upon to exercise in securing compliance with constitutional norms. In 1979 inForest¹ the Supreme Court ruled that Manitoba’s Official Language Act which had been in force since 1890 and which made English the official language of the province violated the constitutional requirement in section 23 of the Manitoba Act, 1870 (the Act creating Manitoba) that the province’s laws be enacted in English and French. In the years immediately following this decision little was done to give effect to it. A few...

      • 57. Société des Acadiens v. Association of Parents, 1986
        (pp. 644-659)

        ~ The expansion and extension of bilingualism had always been at the top of the Trudeau government’s agenda. Shortly after his first election as Prime Minister in 1969, for example, Trudeau had Parliament enact the Official Languages Act, which extended bilingualism in federal government services beyond those required by section 133 of the B.N.A. Act. In 1982, the provisions of section 133 were reaffirmed, and the principles of the Official Languages Act were constitutionalized, in sections 16 to 22 of the Charter. Trudeau had also hoped that the provinces would agree to bind themselves by the same provisions. Only New...

      • 58. Reference Re Bill 30 (Funding of Ontario Catholic Schools), 1987
        (pp. 660-678)

        ~ In this reference we can see the principles of Canada’s original Constitution colliding with more contemporary values in the new Charter of Rights. The denominational school rights enshrined in section 93 of the B.N.A. Act as part of the historic compromise of Confederation recognized the special position of the Protestant minority in Quebec and the Catholic minority in English Canada. Section 15, the equality clause in the Charter, expresses the modern egalitarian precept that the benefits of law should extend equally to all. But the Charter also contains section 29 stipulating that nothing in the Charter derogates from denominational...

  7. PART THREE: CONSTITUTIONAL CHANGE
    • A: DELEGATION
      • 59. Nova Scotia Interdelegation Case, 1951
        (pp. 681-685)

        ~ Canadians are almost obsessed with changing their constitution. The Canadian constitutional myth is the opposite of the American: whereas Americans are apt to believe they have a perfect constitution if only the country could live up to it, Canadians are more apt to believe that they have a marvellous country if only they could find the ideal constitution.

        One reason for the Canadian preoccupation is the strictness with which the courts have enforced the federal division of legislative powers. Whereas in the United States for nearly four decades following the Roosevelt court-packing threat of 1937 the Supreme Court has...

      • 60. P.E.I. Potato Marketing Board v. H.B. Willis Inc., 1952
        (pp. 686-692)

        ~ In this case the Supreme Court was asked to determine the constitutional validity of a slightly modified version of the delegation device which the Court had ruled unconstitutional in theNova Scotia Interdelegationcase. Here it was a question of whether the federal Parliament could validly delegate legislative powers not to a provincial legislature but to an administrative board created by a provincial legislature. This question arose out of another joint effort by the legislature of a province and the Dominion to arm a single provincial marketing board with the power of regulating both intra-provincial and extra-provincial aspects of...

    • B: CONSTITUTIONAL AMENDMENT
      • 61. Reference Re Legislative Authority of Parliament to Alter or Replace the Senate, 1980
        (pp. 693-705)

        ~ As originally enacted in 1867 the B.N.A. Act did not include an amending clause. In those days of liberal imperialism it was accepted that as an Act of the Imperial Parliament it would be amended by that parliament in response to requests from Canada. In 1949, at the request of the federal Parliament, the United Kingdom Parliament amended the B.N.A. Act to give the federal Parliament a limited legislative power, section 91(1), to amend “the Constitution of Canada”. Excluded from this power were the jurisdiction of provincial legislatures, the rights and privileges of provincial governments, education and language rights,...

      • 62. Attorney General of Manitoba et al. v. Attorney General of Canada et al. (Patriation Reference), 1981
        (pp. 706-759)

        ~ Under Pierre Trudeau’s leadership the Liberals returned to power in February 1980. It did not take long for Trudeau to renew the momentum of constitutional reform. He and other representatives of the federal government played a prominent role in the Quebec referendum campaign which took place in the spring of 1980. To persuade Quebeckers not to give René Lévesque’s government a mandate to negotiate Quebec independence, Trudeau and his colleagues promised to work towards a constitutional restructuring of Canadian federalism. Following the defeat of the independence option in the referendum, the Prime Minister convened a meeting with the provincial...

      • 63. Re: Objection to a Resolution to Amend the Constitution (Quebec Veto Reference), 1982
        (pp. 760-770)

        ~ On November 25, 1981, just three weeks after Prime Minister Trudeau and the premiers of all the provinces except Quebec reached an accord on the terms of patriation, the Quebec National Assembly passed a resolution objecting to making these changes in Canada’s Constitution without Quebec’s consent. At that time the government of Quebec also referred to Quebec’s Court of Appeal the question of whether proceeding with these amendments without Quebec’s consent was “unconstitutional in the conventional sense”. On April 7, 1982, the Quebec Court of Appeal brought down its decision, holding unanimously that as a matter of constitutional convention...

  8. Appendix 1: Constitution Act, 1867
    (pp. 771-778)
  9. Appendix 2: Constitution Act, 1982
    (pp. 779-792)
  10. Appendix 3: The Meech Lake Accord
    (pp. 793-800)
  11. Suggestions for Further Reading
    (pp. 801-805)