NCA Constitutional Law 2

Note that the challenger has the burden of proving that a law is a breach of the Charter on a balance of probabilities
Note that there is a presumption of constitutionality
If there is a breach, then the burden shifts to the party seeking to uphold the limitation to prove it is either reasonable per s.1 or that the evidence should be excluded per s. 24(2)
If it cannot be saved under s. 1, then the law is rendered of no force and effect

Notwithstanding Clause – s. 33:
This provision allows the legislature to expressly state that a law is valid notwithstanding a violation of s. 2 or ss. 7-15 of the Charter
Can be renewed every five years with another express statement
Invoking this clause is easier than amending the Charter
It can be seen as an affirmation that Parliament has ultimate control, instead of the Courts

Constitutional Exemption:
It is a principle whereby a law remains valid, but the Court exempts a particular individual from its application
The jurisprudence  the weight of authority is “far” against recognizing constitutional exemptions
This is because allowing a constitutional exemption would improperly intrude on Parliament’s intent
Instead, the appropriate remedy is via s. 52(1) – strike the law down
R v Ferguson  a constitutional exemption undermines the rule of law

Section 8:
“Everyone has the right to be secure against unreasonable search or seizure”
Here, “everyone” includes corporations

STEP 1: Is there a breach? Per Regina v Tessling, the following:
1. Have to look at whether the accused has a reasonable expectation of privacy
2. If so, was the search conducted reasonably?

Sub Step 1: Is the search or seizure in the premises directly owned by the defendant (if not, skip to sub step 3 then go back to 2 if can be determined there is control)

Sub Step 2: What is the reasonable expectation of privacy?
Only when state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a “search” per s. 8 (Regina v Tessling)
Cases have established that s. 8 includes personal privacy, territorial privacy and informational privacy (Regina v Tessling)
Personal privacy protects bodily integrity, and in particular the right not to have our bodies touched or explored to disclose objects or matters we wish to conceal (Para 21)
Territorial privacy includes privacy in the home and, to a smaller degree, in the perimeter around the home (Para 22)
Informational privacy is “the claim or individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” (Para 23)
The “totality of circumstances” test – From Regina v Tessling
1. What was the subject matter of the FLIR image?
2. Did the respondent have a direct interest in the subject matter of the FLIR image?
3. Did the respondent have a subjective expectation of privacy in the subject matter of the FLIR image?
Is it a voluntary exposure of information? If so, per Regina v Tessling, no subjective expectation of privacy
4. If so, was the expectation objectively reasonable? In this respect, have to consider:

A. The place where the alleged “search” occurred
In RvT, it was held that the home is traditionally accorded the highest degree of privacy
B. Whether the subject matter was in public view
C. Whether the subject matter had been abandoned
D. Whether the information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?
E. Whether the police technique was intrusive in relation to the privacy interest
F. Whether the use of surveillance technology was itself objectively unreasonable
G. Whether the FLIR heat profile exposed an intimate details of the respondent’s lifestyle, or information of a biographical nature
In Plant, Sopinka J stated that s. 8 “should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state (Para 25)

In Regina v Tessling, the defendant did not have an objective reasonable expectation of privacy with regards to his house’s heat profile
Because on its own, information about heat profiles is meaningless
No warrant could ever be granted solely on those grounds
In R v Kang-Brown, SCC held that in absence of reasonable and probable grounds, sniffer dogs in bus stations are a violation of a reasonable expectation of privacy
In R v Plant, the SCC held that there is no reasonable expectation of privacy re: electrical bills

Sub Step 3: Does the defendant have a reasonable expectation of privacy in premises they don’t own?
Does the defendant contribute to the rent or household expenses (Edwards v The Queen)
Does the defendant have the authority to regulate access to the premises (more important – E v TQ)
Therefore ask if the defendant has the control to admit or exclude people from the premises
Therefore, the right to be free from intrusion or interference is a key element of privacy (Edwards) – since the appellant could not be free from intrusion or interference in Mrs. Evers’ apartment he could not have had a reasonable expectation of privacy

Sub Step 4: Is the search reasonable?
A warrantless search will be prima facie unreasonable (HvS)
a valid warrant is a constant prerequisite for valid search and seizure both at common law and under statute (HvS)
A search will be reasonable if:
It is authorized by law,
In the case of the common law power to arrest, have to look at the following;
Arrest must be lawful (R v Stillman)
The search must have been conducted as an “incident” to the lawful arrest
Per Stillman, following a valid arrest a police officer may search and seize evidence
Also, may seize anything that would make the arrested armed and dangerous and to preserve evidence that may go out of existence or be lost if not immediately seized
The manner in which the search was carried out must be reasonable
In Stillman, officers knew the YOA required a parent or lawyer present for all interviews
The law itself is reasonable,
And the manner in which it was carried out is reasonable (R v Collins)

Sub Step 5: If the search was unreasonable (without a warrant), is there a system of prior authorization? (Hunter v Southam)
In order for it to be valid, the search has to be pre-authorized, at a minimum, by someone capable of acting judicially(HvS)
In Hunter v Southam, it was held that the RTPC member “cannot be the impartial arbiter necessary to grant an effective authorization” because of his relationship with the CI Office” (P. 13)
This system of prior authorization is to provide a consistent standard for ID’ing the point at which the interests of the state prevail over the individual in resisting such intrusions (HvS)

Sub Step 6: What is the minimum requirement that is required before authorization is given?
Here, have to look at what “reasonable” means
Reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure (HvS P. 15)
Therefore, is there reasonable and probable grounds?


If there is a breach, look at whether justified under s. 1


Section 1:
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

Step 1: Is the limit prescribed by law (R v Oakes, affirmed in R v Lucas)?
In R v Lucas, the definition of this is that the limit must provide “an intelligible standard according to which the judiciary must do its work” (Para 29)
This test is adapted from Irwin Toy

Step 2: Does the limit have a pressing and substantial objective (R v Oakes)?
At a minimum, it is necessary that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be defined as sufficiently important (R v Oakes)
In order to determine whether is pressing and substantial, have to adopt a purposive approach to identify the aim or objective of the challenged sections at the time they were enacted (R v Lucas)
In Mentuck, it was held that necessity requires a “real and substantial risk”, the reality of which is well-grounded in the evidence and poses a serious threat to the administration of justice (Para 34)
In Lucas, it was held that the protection of reputation was the goal of the crime of defamatory libel, and this was pressing and substantial – this is affirmed in Hill
In McKinney v University of Guelph, it was held that the preservation of academic freedom is pressing and substantial
In R v Keegstra, it was held that the prohibition of hate propaganda is a pressing and substantial objective
In Law Society v BC, it was held that the regulation and creation of the legal profession and the practice of law is pressing and substantial

Step 3: If there is a pressing and substantial objective, is the limit reasonable and demonstrably justified? (R v Oakes)
This involves using the “a form of proportionality test” from R v Big M Drug Mart – three steps (All from R v Oakes):

1. The measures adopted must be carefully designed to achieve the object in question
Therefore, they must be “rationally connected” to the objective (Para. 70)
Must not be arbitrary, unreasonable, or unfair
Show the connection between the means used to limit the right and the law
Have to prove that the connection between the presumption and the inference is rational
In R v Oakes, it was held that there was no rational connection between the basic fact of possession of a narcotic and the presumed fact of possession for the purpose of trafficking
It would be irrational to infer that a person had an intent to traffic on the basis of his or her possession of a very small quantity of narcotics
In McKinney v University of Guelph, it was held that removing a mandatory retirement age would affect the job security afforded by the tenure system
Therefore, the mandatory retirement age ensures continuing faculty renewal, a necessary process to enable universities to be centres of excellence (Para 64)
In R v Keegstra, it was held that there is a rational connection between the prohibition of hate propaganda and criminal laws to that effect
In Law Society of BC v Andrews, it was held that there is no rational connection between the objective of qualifying lawyers that are familiar with Canadian institutions and a citizenship requirement in admission to the Bar; Citizenship doesn’t automatically mean an attachment, and non-citizens may be deeply committed to Canada
However, they held that there is no impediment on getting citizenship, so it’s not a big deal

2. Even if rationally connected to the objective, the means should impair “as little as possible” on the right or freedom in question
Per R v Keegstra, legislation should be carefully tailored so as to minimize the impairment of the right
It must be “a narrowly defined offence which suffers from neither overbreadth nor vagueness” (Para 132 R v Keegstra)
In R v Lucas, the SCC rejected the argument that defamatory libel can be argued in civil law, and therefore a criminal provision does not minimally impair the right
The civil and criminal law serve different purposes - Criminal law = meant to punish and recognize a social wrong; civil law = compensation by awards of damages for injuries suffered by the plaintiff
In RWSDU v Dolphin Delivery, it was held that a restraint on picketing so far as necessary to ensure it doesn’t escalate beyond the actual parties is a minimal impairment on the right (Para 23)
In McKinney v University of Guelph, it was held that a mandatory retirement age ensures that faculty members, while in the tenure system, have a “large measure of academic freedom with a minimum of supervision and performance review throughout their period of university” (Para 69)
Therefore, the court realises that it will cause detriment to some, but the detriment to those affected must be weighted the benefit of the universities’ policies to society generally and the individuals who compose it
Without this policy, then it would discriminate against young academics who are seeking tenured positions
In R v Keegstra, it was held that hate propaganda legislation minimally impair the right because it had within it numerous definitional limits which “act as safeguards to ensure that it will capture only expressive activity which is openly hostile to Parliament’s objective and will thus attack only the harm at which the prohibition is targeted (Para 119)

3. There must be a proportionality between the effects of the measures which are responsible for limiting the charter right or freedom, and the objective which has been identified as of “sufficient importance”
The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society
R v Lucas supports the use of a scale: if the offence committed is serious, it is so far removed from Charter values that it should be accorded a low or minimal degree of protection of the Charter
“it would trivialize and demean the ... rights guaranteed by the Charter if a significant value was attached to the deliberate recounting of defamatory lies that are likely to expose a person to hatred, ridicule, or contempt (Lucas Para 93)
This is reinforced by R v Keegstra, in which it was held that the laws take aim at a special kind of special activity which is only “tenuously connected with the values underlying the guarantee of freedom of speech” found in Irwin Toy (see s. 2(b))
This step is meant to determine whether a law is too broad, too unfair
Also, look to see if other Charter rights are being infringed, etc
In R v Mentuck, it was held that unnecessary publication bans could have serious deleterious effects, since the freedom of the press would be “seriously curtailed” in respect of an issue that may merit widespread public debate (Para 50)
Improper use of bans, in order to hide police conduct from public scrutiny, deprives the Canadian public of the vital right to know and respond to police practices that could erode “the fabric of Canadian society and democracy” (Para 51)

Section 11(d):
“any person charged with an offence has the right...to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”

What is the presumption of innocence entrenched in s. 11(d) of the Charter? (All from R v Oakes)
i) The presumption of innocence is a hallowed principle lying at the very heart of criminal law
Although it is expressly protected in s. 11(d) of the Charter, it is referable and integral to the general protection of life, liberty and security of the person contained in s.7 of the Charter
It protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct
It ensures that until the State has proven the accused’s guilt beyond a reasonable doubt, he or she is innocent
This is essential in a society committed to fairness and social justice (Para. 29)
ii) The presumption of innocence has enjoyed a longstanding recognition at common law
Leading case – Woolmington v DPP – “it is the duty of the prosecution to prove the prisoner’s guilt...if, at the end of an on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, [as to their guilt], the prosecution has not made out the case and the prisoner is entitled to an acquittal” (Para 30)
Iii) The acceptance of this principle is also shown in major international human rights documents
For example, in Article 11(1) of the UN’s Universal Declaration of Human Rights

The right to be presumed innocent until proven guilty requires that s. 11(d) have, at a minimum, the following content (R v Oakes).
STEP 1: First, an individual must be proven guilty beyond a reasonable doubt.

STEP 2: Second, it is the State which must bear the burden of proof.
Per R v Oakes, a reverse onus clause that requires the defendant to bear the burden of proof is a prima facie violation of the Charter
In this case, it involved s. 8 of the NCA that required to accused to prove on a BoP that he was not in possession for the purpose of trafficking.
Because, in this case, it was on the civil standard (BoP), it was held to be less onerous than requiring proof on the criminal standard (beyond a reasonable doubt)
Also, this is affirmed in R v Keegstra – whenever there is a reverse onus provision, there is an infringement of s. 11(d)

STEP 3: Third, criminal prosecutions must be carried out in accordance to lawful procedures and fairness – shown in “according to law in a fair and public hearing by an independent and impartial tribunal”

If there is a breach, look at whether justified under s. 1

Section 2(b)
“Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”

STEP 1: Is there a breach?
Under s. 2(b) the SCC has consistently held that all expression is protected, regardless of its content, unless the form in which the expression is manifested is such that it excludes protection (as, for example, a violent act)” (Para 25 – R v Lucas)
Therefore, all expression is protected, regardless of its form or content
The only limit on this right is that violent expression is not protected
This is reinforced by Irwin Toy, in which it was held that “activity is expressive if it attempts to convey meaning. That meaning is its content”

Sub Step 1: Does the action in question involve some form of expression (non-violent) (R v Lucas)
In RWDSU v Dolphin Delivery, it was held that picketing involves at least some element of expression, and is therefore protected under the Charter
In R v Keegstra, it was held that anti-Semitic statements which wilfully promote hatred against an identifiable group convey a meaning and are therefore protected under the Charter
The negative aspect of these statements, per Irwin Toy, are irrelevant in determining a s.2(b) breach

Sub Step 2: Was the purpose of the impugned government action the restriction of freedom of expression (R v Keegstra)
In R v Mentuck, it was held that a publication ban is only justified in the following circumstances (applied from Dagenais):
1. Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available measures will not prevent the risk, AND
2. The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban
If so, then there is a prima facie infringement of the Charter

If there is an infringement, go to s. 1 of the Charter to see if justified
For the sake of a s. 1 analysis, will need these to determine deleterious effects:
Irwin Toy stressed the values underlying the freedom of expression: (purposes of 2(b))
1. Seeking and attaining truth is an inherently good activity
2. Participation in social and political decision making is to be fostered and encouraged
3. Diversity in forms of individual self-fulfillment and human flourishing should be cultivated in a tolerant and welcoming environment for both those who convey and meaning and those to whom meaning is conveyed

Section 7:
“Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”
“Everyone” = doesn’t include corporations, or a fetus
The SCC has interpreted the second part as a limitation on the first
You can be deprived of “life...” if it is in accordance with the “principles of...”

STEP 1: Is there a breach?

Sub Step 1: Is the provision so vague that it contravenes s. 7 of the Charter?
Cory J states that there are two factors to be used to determine vagueness of a provision (R v Lucas)
1. It is vague if it does not provide “an intelligible standard according to which the judiciary must do its work” (Para 29) – this is the test to determine if prescribed by law
There is a sufficient “intelligible standard” such to give an adequate basis to apply the law and give fair notice to the citizen of the law
2. A law is also vague if it does not sufficiently “delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion” (Para 29)

Sub Step 2: Does the impugned legislation violate liberty of the person?
Therefore, ask: does the impugned legislation contain an absolute liability offence? (RE BC MVA)
If there is an absolute liability offence coupled with a punishment of imprisonment, it will violate s. 7 of the Charter (Re BC MVA)
However, it will violate s. 7 only if and to the extent that it has the potential of depriving life, liberty, or security of the person (Para 76)
It is a violation of s. 7 if it impacts upon the right to liberty for a limited number of morally innocent persons (RE BC MVA)

Sub Step 3: Does the impugned legislation violate security of the person?
“This encompasses a notion of personal autonomy involving, at the very least, control over one’s bodily integrity free from state interference and freedom from serious state-imposed psychological and emotional stress...section 7 is also implicated when the state restricts individuals’ security of the person by interfering with, or removing from them, control over their physical or mental integrity” (Para 136 Rodriguez v BC)
Therefore, the right to make choices regarding one’s own body, control over one’s physical and psychological integrity, and basic human dignity are encompassed within security of the person
It was held in Chaoulli v Quebec that wait times increase risk of death or serious health impairments – therefore waiting lists are an infringement of a right to life

Sub Step 4: What is the purpose of “principles of fundamental justice”?
In Re BC Motor Vehicle Act, it was held that that s. 7 is not to be construed in a more narrow manner than the rights in ss. 8 to 14 (Para 28)
This is because ss. 8 to 14 illustrate the various forms of deprivation of liberty that are in breach of the principles of fundamental justice (Para 29)
Therefore, using the purposive approach, the Court held that the right to liberty would not be narrower than the right not to be arbitrarily detained or imprisoned, and that the right to security of the person would not have less content that the right to be secure against unreasonable search or seizure (Para 27)
Therefore per BC MVA, the principles of fundamental justice are “essential elements of a system for the administration of justice which is founded upon a belief in ‘the dignity and worth of the human person’...and on the ‘rule of law’” (Para 30)
They are found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the...domain of the judiciary as guardian of the legal system (BC MVA Para 31)
It was held in Chaoulli v Quebec that a principle is that laws should not be arbitrary
It will arbitrary if the inference lacks a real connection on the facts to the purpose the inference is sad to serve
It was held in Rodriguez v BC that a principle of fundamental justice is that the human dignity and autonomy of individuals be respected
Therefore, per Cunningham v Canada, the principle of fundamental justice requires a balance between protecting the interests of the person who claims their liberty has been limited as well as the protection of society
Therefore, criminal code provisions prohibiting assisted suicide, although may rob some of their human dignity, it necessary to uphold the respect for life, and therefore doesn’t violate the principle of fundamental justice (Rodriguez Para 174)
Therefore, the “principles of fundamental justice” are not a right, but are a qualifier on the right to life, liberty, and security of the person


Note that in the majority of s. 7 cases, there is no s. 1 analysis
If it violates s. 7, it will most likely be struck down to the extent of the inconsistence

Section 32(1):
“This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province”

Does the Charter apply?
Per RWDSU v Dolphin Delivery, the Charter does not apply, in the absence of government action, to private litigation
It is limited to Parliament, the provincial legislatures, and the exec and admin branches of government
“opening up private activities to judicial review could impose an impossible burden on the courts” (McKinney Para 24)
In Hill, it was held that the Charter could not be invoked in the circumstances to scrutinize the constitutionality of the common law of defamation

Therefore, the tests from McKinney v University of Guelph are to be applied

STEP 1: Does the entity in question perform its functions autonomous of government?
“Just because an entity is subject to judicial review of certain decisions, that does not in itself make them part of government within the meaning of s.32 of the Charter”
In McKinney, universities, who make decisions autonomously of government, are not subject to the Charter because they don’t follow the dictates of government in any way (Para 35)

STEP 2: Does the entity in question receive funds from the government?
If so, then the question is whether the government has control over how the funds are used
In McKinney, the government has no legal power to control the universities or how the funds are put to use (Para 41), and therefore fails this test as well

STEP 3: Does the entity in question have a board of governors or a governing council
If so, then the question is whether the board is run by the government
One aspect to look at is whether the government has members on the board
Another test is whether the board can make decisions without the approval of government
In McKinney, it was held that Per Beetz J in Harelkin v University of Regina, universities are autonomous and run by boards of governors or a governing council, the members of which are elected or appointed independent of government

STEP 4: Is it based on a common law rule which government action justifies or authorizes?
Per Hill, if this is the case, then the constitutionality of the common law could only be analyzed in those situations where a case involved a government action which was authorized or justified on the basis of a common law rule that allegedly infringed a Charter right (Para 83)
However, in Dolphin Delivery, McIntyre said that the Charter can also apply to the common law where the common law would develop in a manner inconsistent with Charter principles
As well, per Hill, in the context of a civil litigation involving ONLY private parties, the Charter will apply to the common law only to the extent that the common law is found to be inconsistent with Charter values (see equations below)
In Hill, a test to analyze a private litigation Charter “challenge” to the common law is as follows:
Charter values, framed in general terms, should be weighed against the principles which underlie the common law
The Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary
The traditional division of onus in a Charter challenge should not be applicable to a private litigation Charter “challenge” to the common law
The party alleging that the common law is inconsistent with the Charter should bear the onus of proving both that the common law fails to comply with Charter values and that, when these values are balanced, the common law should be modified

If the entity fails this test, then the Charter does not apply

Application Equations:
Legislation = government action
Common law (doesn’t = ) government action
Government + common law = Charter applies
Government + legislation = Charter applies
Private Party + common law = no Charter
May be subject to Charter values, but the Charter itself does not apply
Private party + legislation

Section 15(1):
“Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination, and, in particular, without discrimination based on age, national or ethnic origin, colour, religion, sex, age or mental disability”

STEP 1: Does the distinction claimed constitute discrimination for the purposes of the Charter?
This is outlined in Law Society of BC v Andrews:
“Discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society” (Para 37)
To determine this, have to prove that they failed to receive a benefit the law provided, or were saddled with a burden the law did not impose on someone else (Auton v BC)
Here, it was held that the benefit claimed was not provided for by the law
Therefore, have to determine the appropriate comparator group, then ask whether, as compared to people in the group, the petitioners have been denied a benefit (Auton v BC)
The comparator group should mirror the characteristics of the claimant relevant to the benefit or advantage sought, except for the personal characteristic related to the enumerated or analogous ground (Para 54 Auton v BC)

STEP 2: Is the discrimination claimed based on enumerated grounds? (If no, skip to step 3)
Note that for s. 15 to come into operation, the inequality must be made by law – statute or regulation (McKinney v University of Guelph)
If, here, one would conclude that universities are part of government, then their policies would amount to law for purposes of s.15 of the Charter
However, note that in Law Society of BC v Andrews, it was held by Wilson J that not every distinction drawn by law constitutes discrimination
However, it was also held in Andrews that the concept of equality doesn’t necessarily mean identical treatment

STEP 3: Is the distinction claimed based on analogous grounds?
Law Society of BC v Andrews held that a distinction based on citizenship is an analogous grounds for the purposes of the Charter
Per Vriend v Alberta, sexual orientation was read into the Charter as being an analogous grounds

STEP 4: Is the discrimination in a substantive sense - Involving such factors as prejudice, stereotyping, and disadvantage
This is required, as well as an analogous or enumerated ground and “discrimination” per the above to constitute discrimination for the Charter (Law Society of BC v Andrews, affirmed in Law v Canada)
These are the factors to determine whether it is discrimination in a substantive sense (Law v Canada):
1. Pre-existing disadvantage – i.e. aboriginals, women
2. Relationship between grounds and the claimant’s characteristics or circumstances
Does the legislation violate human dignity?
Does the legislation take into account a claimant’s actual situation? i.e. Abos
3. Ameliorative purpose or effects
If it has an ameliorative purpose then it won’t be discrimination in a substantive sense (IF IT DOES, GO TO s. 15(2) ON NEXT PAGE)
4. Nature of the interest affected – have to see if the discrimination goes to the core of one’s dignity

If there is a breach of the Charter, and it cannot be upheld as an ameliorative program per s. 15(2) of the Charter, then see if it can be upheld under s. 1 of the Charter
Section 15(2)
“Subsection (1) does not preclude any law, program, or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”

STEP 1: Does the program have a remedial purpose?
In R v Kapp, it was held that a communal fishing licence granted to aboriginals was part of an attempt to negotiate a solution to aboriginal rights fishing claims
Therefore, it had a remedial purpose

STEP 2: Does the program target a disadvantaged group identified by the enumerated or analogous grounds?
If so, then it is protected by s. 15(2) of the Charter and doesn’t violate the equality guarantee of s. 15

Section 24(2):
“Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”

The accused must prove the following on a balance of probabilities:

STEP 1: Is there a breach of the Charter? (Test per R v Collins)
Has to be of the accused’s rights
i.e. check if the search was reasonable per s. 8 of the Charter
By the state
Has to be determined by a Court of “competent jurisdiction”
To determine if a search is reasonable per s. 8, go to step 4 of s. 8

STEP 2: Was the evidence obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter? (Test per R v Collins)
Has to be a “temporal connection” that is not too remote
As long as you have a breach that precedes the evidence, and they are connected, then that is sufficient (R v Strachan)

STEP 3: Does the evidence obtained impact on trial fairness? (per R v Collins)
Sub Step 1: Was the evidence obtained conscripted or non-conscripted? (If conscripted, go to Sub Step 2, if non-conscripted, go to Steps 4 and 5) (Per Stillman v The Queen)
Conscripted evidence = the accused is conscripted against himself through a confession or other evidence emanating from him – Para 37 R v Collins
Often real evidence that was obtained in a manner that violates the Charter will rarely operate unfairly for that reason alone. The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair (Para 37 R v Collins)
However, in R v Stillman, it was held that real evidence is not necessarily non conscriptive
Where a person, as a result of a breach of the Charter, is compelled or conscripted to provide a bodily substance to the state, it will be conscriptive, even though it is real
“Evidence will be conscripted when, in a violation of his Charter rights, is compelled to incriminate himself at the behest of the State by means of a statement, the use as evidence of the body or the production of bodily samples (Para 80 R v Stillman)
Derivative evidence = subset of conscriptive evidence (Douglas J’s dissent in R v Stillman)
It is where an accused is conscripted against himself, in a Charter violation, which lead to the discovery of a real item of evidence
This idea comes from the circumstances in R v Burlingham, where an illegally obtained confession led the police to find real evidence of the commission of the offence

Sub Step 2: Was the evidence obtained discoverable? (If discoverable and conscripted, move on to 4 and 5) (Per R v Stillman)
The Discoverability or “But For” test – from R v Stillman
1. Did the police have an alternative non-conscriptive means to obtain the impugned evidence, notwithstanding the fact that they obtained it otherwise
If so, the admission may not render the trial unfair – DISCOVERABLE
2. Was the discovery of the evidence inevitable?
If so, the admission may not render the trial unfair – DISCOVERABLE
Per Stillman, discoverability has nothing to do with legality
If the evidence obtained conscripted + not discoverable = EXCLUDE (R v Stillman)
Skip Step 4 and go to Step 5
If the evidence obtained conscripted + discoverable = doesn’t go to trial fairness (Stillman)
Go to Step 4

STEP 4: What was the seriousness of the violation in obtaining the evidence? (Per R v Collins)
Have to look at the seriousness of the violation of the Charter breach (R v Collins)
1. Was it committed in good faith, or was it inadvertent or of a merely technical nature? (R v Collins)
This will not be a serious violation
2. Was it wilful, deliberate, or flagrant? (R v Collins)
If they aren’t following the law = bad faith
3. Was the action motivated by urgency to prevent the loss or destruction of the evidence? (R v Collins)
This will often not be a serious violation on its own
4. Were there other investigatory techniques available? (R v Collins)
If there are legal ways to go about it, then the violation is more serious, in bad faith, etc
Also, can look at if there are multiple violations of the Charter or not, etc.

STEP 5: What is the effect of the exclusion of the evidence? (Per R v Collins)
Therefore, the question under s. 24(2) is whether the system’s repute will be better served by the admission or the exclusion of the evidence, and it is thus necessary to consider any disrepute that may result from the exclusion of the evidence (Para 39 R v Collins)
The SCC held that the administration of justice would be brought into disrepute by the exclusion of evidence essential to substantiate the charge, and thus the acquittal of the accused, because of a trivial breach of the Charter. Such disrepute would be greater if the offence was more serious (Para 39)
However, if it is a serious breach of the Charter, and a serious offence, can’t include the evidence because it may convict someone who is innocent
Therefore, have to look at the seriousness of the breach, then look at the offence and decide the seriousness of the offence
If the admission of the evidence would result in an unfair trial, the seriousness of the offence could not render that evidence admissible” (Para 39)
Therefore, there is a connection between the effect of the exclusion and trial fairness
Trial fairness + serious = exclude (Collins)
i.e. an unfairly obtained confession + serious offence = have to exclude evidence

NCA Constitutional Law 1

R v Morgentaler:
Application of Principles:
To determine Pith and Substance, look first to purpose, then look at the legal/practical effect
This case can be seen as an authority on the notion that you can look to extrinsic evidence as well as the four corners of the legislation.
(i) Four Corners Test
(from p. 82) Through analysis of the legal effect of the legislation, the central purpose of the legislation was the restriction of abortion as a socially undesirable practice which should be suppressed or punished.
The legal effect is the effect on the rights and freedoms of those to which the legislation is directed.
(ii) Outside the Four Corners
(from p. 84) A majority of the Court of Appeal held that the legislation effectively duplicated that under s. 251 (now 287) of the Criminal Code.
The more exact the reproduction, the stronger the inference that this is the dominant purpose of the enactment
As well, the fact that this section of the Criminal Code strengthens the argument that the present legislation is a duplicate of s. 251, perhaps it was meant to fill that gap?
Also, the Court looked to excerpts from Hansard to determine the purpose of the legislation as outlined in the Parliamentary debates. The Court held that the debates showed that the legislation was directed at the appellant’s clinics, and that it was viewed as a public evil that must be eliminated. The respondent’s argument that the legislation was directed at preventing privatization of health care and a potential two-tier system was absent from the Parliamentary debate transcripts.
As well, the SCA dismissed the argument that allowing free-standing abortion clinics would lead to an increase in the cost of abortions to the province. The appellant argued that, using Dr. Malcom’s evidence, that a reduction in the number of abortions performed would increase the cost per abortion, but the Court argued that the appellant failed to prove that the decrease in the no. Of abortions performed would be large enough to cause this.

Reference RE: Employment Insurance Act:
To identify the pith and substance, look at the “living tree” doctrine from Reference Re: Same-Sex Marriage
In instances of dispute regarding the jurisdiction of a given law, the court must refer to the framers’ description of the power in order to identify its essential components, and must be guided by the way in which courts have interpreted the power in the past
This is because the task of maintaining the balance between federal and provincial powers falls primarily to governments (from p 100)
First, determine the pith and substance or dominant characteristic of the impugned provisions before identifying the head of power to which the matter relates.
To analyze the pith and substance, have to look to the purpose (mischief approach) and the effect of the law
In this case, the purpose of the extension of maternity benefits to women were to “provide women in this position with income replacement benefits” (from p. 104)
The purpose of this legislation was not just maternity benefits, but instead employment insurance as a whole
In this case, the effect of the provision is to “enable insured pregnant women to have access to financial resources at a time when they are not receiving their employment income” (from p. 105)
Therefore, the primary effect is to replace, in part, these women’s employment income, and the secondary effect is “to enable them to prepare for childbirth, to recover physiologically, and to have a period of time to take care of their families”
Therefore, the pith and substance of this provision was to “replace the employment income of insured women whose earnings are interrupted when they are pregnant” (from p. 106)
Therefore, the pith and substance of the provision are consistent with the Federal jurisdiction over unemployment insurance (from p. 115)

Citizens Insurance Company v Parsons:
Step 1: have to look at whether the Act impeached in the present case falls within any of the classes enumerated as exclusively Provincial domain under s. 92.
If the answer to this is “no”, then no other question needs to be answered.
The Court rejected the appellants’ claim that the word “civil rights” was intended to have a narrow meaning per s. 94 of the Constitution.
He looked at the whole constitution – s. 94 – “property and civil rights” meant the same thing in this section as well as in s.92 – under s. 94, ON, NS, and NB have to have a uniformity of laws, but if you take the narrow definition of this term, then it would include Quebec (but QC is excluded from this – civil law system)
Inconsistent – s. 94 is meant to protect QC’s civil law system
Therefore, civil law has to include contracts
Step 2: It is only when the Act prima facie falls within one of the classes in s. 92 that one needs to determine whether it also falls into one of the enumerated classes of s. 91
The only section of enumerated Federal powers which could possibly apply is s. 91 (2) – the regulation of trade and commerce
To determine whether the Ontario Act could possibly fall under this category, it must be determined (1) whether insuring buildings against fire is a “trade”
It was held that contracts of indemnity cannot be considered trade contracts
Therefore, the next part is to determine (2) whether the words “trade and commerce” were intended to have a broad or narrow meaning
The Court argued that the terms “trade and commerce” could potentially be interpreted in a really wide fashion, however, it was held that if this broad interpretation was intended by the framers, then the following sections demarcating further powers along the lines of trade and commerce would not have been necessary.
Also, p. 126 – the fact that it was incorporated by the Feds is irrelevant – Sir M. Smith says that an incorporation doesn’t create jurisdiction – only allows a company to do business. If one were to allow the argument that it does, then it would wipe out provincial jurisdiction over property and civil rights.
Step 3: If the answer to this is also “yes”, then it has to be determined by the court (from p.124) “whether the power of the provincial legislature is or is not thereby overborne”
In this case, the answer was “no”, so the SCC didn’t go any further

GM of Canada v National Leasing
Step 1: is the Act valid under the federal trade and commerce power per s. 91(2) of the Constitution yes
Therefore, in CN Transportation, it was suggested that Parsons had established three important principles in interpreting s. 91(2):
(i) It does not correspond to the literal meaning of the words “regulation of trade and commerce
(ii) It includes both arrangements regarding international and interprovincial trade as well as the general regulation of trade affecting all of Canada
(iii) It does not extend to regulating the contracts of a specific business or trade
Laskin CJ outlined three checkpoints for validity under the second branch of the trade and commerce power above (From Vapor Canada case):
1. The impugned legislation must be part of a general regulatory scheme
2. Must be monitored by the continuing oversight of a regulatory agency
3. Must be concerned with trade as a whole rather than with a particular industry.
Therefore, the SCC used the Vapor Canada criteria to determine whether the Act was valid as a trade and commerce power under the second branch above but added two factors:
4. The legislation should be of a nature that the provinces would be constitutionally incapable of enacting
5. The failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country.
Step 2: is s. 31.1 integrated into the CI Act in such a way that it too is intra vires under s. 91(2) yes
1.1. The court must determine whether the impugned provision intrudes on provincial powers, and, if so, to what extent. If YES
1.2. The court must establish whether the act is valid, in cases under the second branch of s. 91(2) this will normally involve the presence of a regulatory scheme and then see if the scheme fits with the Vapor Canada criteria
2.1. The court must see if the provision is sufficiently integrated with the scheme that it can be upheld by virtue of the relationship, despite encroachment on provincial powers. If YES
In this case, the correct way to determine whether it is sufficiently integrated is to see if the provision is functionally related to the general objective of the legislation, and to the structure and the content of the scheme.
Held that it is an “integral, well-conceived component of the economic regulation strategy found in the CI Act
2.2 It is intra vires Parliament as an exercise of the general trade and commerce power.

Saskatchewan v Rothmans
The doctrine of federal legislative paramountcy dictates that where there is an inconsistency between validly enacted but overlapping provincial and federal legislation, the provincial legislation is inoperative to the extent of the inconsistency
First, under the doctrine of federal paramountcy, have to look at if it is valid federal/provincial law:
Federal? Yes – Criminal law
Provincial? Yes – Property and Civil Rights 92(13), Local matters 92(16)
But note that it can’t be under 92(15), since it does not create powers, but allows for an enforcement mechanism for laws that are valid under enumerated provincial powers
Second, there are two guiding principles of determining whether s. 6 is inoperative:
Step 1: Can a person simultaneously comply with s. 6 of Sask. legislation and s. 30 of Fed legislation?
Yes – one can either admit no one under 18 years of age to the premises or not display tobacco products
Step 2: Does s. 6 of Sask legislation frustrate Parliament’s purpose in enacting s. 30 of Fed legislation?
Therefore, what is the purpose?
Therefore, it does not frustrate the purpose of Parliament
The Fed legislation was to address a national public health problem (on a general scale) and to circumscribe the TA’s general prohibition on promotion of tobacco products set out in s. 19 (on a more specific scale).
The Sask legislation does not frustrate this; instead it further protects young people from tobacco diseases and restrict access of young people to tobacco.

RJR Tobacco v Canada
Step 1: Is the Pith and Substance of the Act the regulation of the criminal law?
Therefore, it was held that the Act was in pith and substance criminal law
Criminal law power, remember = prohibition + penalty + valid public purpose
Step 2: Does the Act also have an underlying criminal public purpose as described in the Margarine Reference?
Sub Step 1: Look at the legislation itself
In these cases, it was held the evil targeted by Parliament in this Act is the detrimental health effects caused by tobacco consumption (p. 157)
Sub Step 2: Look at extrinsic materials, such as parliamentary debates, related legislation, and evidence of the “mischief” to which the legislation is directed (OK per Morgentaler to look at extrinsic evidence)
Evidence was convincingly produced that tobacco consumption is widespread in Canadian society and poses great health risks.
In the Margarine Reference, Rand said that the protection of health is one of the ordinary ends served by the criminal law, and that the criminal law may validly be used to safeguard the public from any injurious or undesirable effect”
Appellants Argument Parliament cannot criminalize an activity ancillary to an “evil” if it does not criminalize the “evil” itself.
This is contradicted by the SCA’s findings in the Prostitution Reference and Rodriguez v. British Columbia
In both of these cases it was upheld constitutionally by the SCC legislation that criminalized an ancillary activity without criminalizing the underlying “evil” as well.

Reference Re: Firearms Act
Step 1: What is the pith and substance of the law?
To determine the pith and substance,(1) what is the purpose of the enacting body, and (2) what is the legal effect of the law?
(1) It is often stated in the legislation, but can also be determined (per Morgentaler) through reference to extrinsic materials as well as by considering the “mischief” Parliament sought to remedy
Since it is unclear, SCC looks to extrinsic materials
(2) It involves considering how the law will operate and how it will effect Canadians
Therefore, the pith and substance of the Act is a concern for public safety.
Step 2: It has to be remembered, per General Motors v CNL, law mainly in relation to the jurisdiction of one level of government may have incidental effects upon the jurisdiction of the other.
In determining whether it falls within s. 91(27) of the Fed Criminal Power, the three criteria from RJR are applied (valid criminal law purpose backed by a prohibition and a penalty)
(1) Criminal law purpose?
Per Margarine Reference, it is Crim law if it is for i.e. Public peace, order, security, health, morality.
Pith and substance of the Act is public safety, and is thus within the criminal law purpose
(2) Prohbition?
S. 112 of the Act prohibits the possession of a firearm without a registration certificate
S. 91 of the CC prohibits the possession of a firearm without a licence and a registration cert.
(3) Penalty?
S. 115 of the Act and s. 91 of the CC attach penalties to this prohibition

Re: Anti- Inflation Act
Step 1: Is this Crisis legislation (p. 184)? If it is crisis legislation, than it is OK per the POGG power
Sub Step 1: Did the Act itself belie the federal contention (that it was crisis legislation) because of the form of the Act and, in particular, because of the exclusion of the provincial public sector from its scope?
As well, this view that it is, in fact, crisis legislation is furthered by the fact that p. 189 (Ritchie) it is limited to dealing with critical conditions of inflation and is legislation of a merely temporary nature
Sub Step 2: Is the federal contention assisted by the preamble of the statute?
Therefore, the Court is first looking at the legislation itself to determine the purpose/
Sub Step 3: Does the extrinsic evidence put before the Court, and other matters of which the Court can take judicial notice without extrinsic material to back it up, show that there was a rational basis for the Act as a crisis measure?
Therefore, the Court is now looking at extrinsic evidence (okay per Morgentaler)
The Court, however is careful to say that the use of extrinsic material is only to go so far as to show that there is a “rational basis for the legislation which it is attributing to the head of power invoked in this case” (p. 187)
Sub Step 4: Is it a tenable argument that exceptional character could be lent to the Act as rising beyond local/Provincial concerns cause it was a necessary measure to fortify action in other areas of federal authority, such as monetary policy?
The SCC held that the policy was a valid extension of Parliamentary jurisdiction over other areas of finance.

R v Crown Zellerbach
In Labatt Breweries, Estey J summed up the POGG doctrine as having three possible forms: (p 212)
1. Cases “basing the federal competence on the existence of a national emergency”
2. Cases dealing with subjects that (i) did not exist at the time of Confederation and (ii) cannot be classified as a merely local or private nature – i.e. aeronautics and radio
3. Cases dealing with subjects that go beyond a local or provincial interest and must therefore be a concern of the Dominion as a whole under the residual power in s. 91.
In this case, Le Dain J outlines, therefore, the criteria for the national concern doctrine of the POGG power (p. 213)
1. It is separate and distinct from the national emergency doctrine of the POGG power, which allows the Feds to constitutionally create temporary legislation
2. It applies both to matters that did not exist at the time of Confederation and to matters which were originally matters of a local or private nature but, in absence of national emergency, become matters of national concern
Therefore, “newness” is not necessarily a criteria
3. Must have a singleness, distinctiveness, and indivisibility that clearly distinguishes it from provincial matters and impacts provincial jurisdiction on a scale that can be reconciled by the distribution of powers in the Constitution
Sub Step 1: Is it indivisible? Look at extrinsic materials (OK per Morgentaler)
Therefore, can the subject matter be further divided? If so, possibly not
Le Dain also argues that if you cannot contain the subject matter, then it has to be passed under the emergency powers
If it is going to be passed under national concern, it has to be a topic that can be defined and contained
4. In determining (3), it is relevant to consider the effects on extra-provincial interests if the province fails to deal effectively with the control or regulation of the intra-provincial aspects of the matter in question (“provincial inability test”)
This can be restated as such (p. 215) “because of the interrelatedness of the intra-provincial and extra-provincial aspects of the matter...it requires a single or uniform legislative treatment”
However, note that the residual nature of Parliamentary powers means that, in the case of 4. The only part that would fall within Federal competence is that which is beyond provincial control.

Guerin v The Queen
Step 1: What is the nature of the relationship between Indians and the Crown?
Although it is defined by the courts as a fiduciary duty , not a trust
Whether the Crown is a fiduciary depends on whether the Indian interest in the land is inalienable except upon surrender to the Crown
Step 2: If it is a fiduciary relationship, have to further define the existence of Indian Title
Calder v A-G for BC: Indian title is a legal right derived from the Indians’ historic occupation and possession of their tribal lands
Step 3: Defining the nature of Indian Title
(p. 235) Indians have a legal right to occupy and possess certain lands, the ultimate title to which is the Crown.
Although this does not amount to beneficial ownership, the interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering Indians
These two aspects go together – the Crown’s original purpose in declaring the Indians’ interest to be inalienable other than to the Crown was to facilitate the Crown’s ability to represent the Indians in dealings with third parties
Step 3: What is the Crown’s fiduciary obligation to Indians re: Reserve land?
Successive Fed statutes including the present IA have all provided for the general inaliability of Indian reserve land except upon surrender to the Crown, this is ss. 37-41 of the Indian Act
This is clearly to put the Crown between Indians and prospective buyers/lessees so as to prevent the Indians from being exploited
Therefore, this is a fiduciary relationship – (p. 236) “the hallmark of a fiduciary relationship is that the relative legal positions are such that one party is at the mercy of the other’s discretion”
Step 4: What is the nature of the breach of the fiduciary obligation?
The trial judge found that the Crown’s agents promised the Band to lease the land on certain specified terms, then after surrender obtained the lease on different terms
The obtained lease was much less valuable
Therefore, Dickson J rejects the Crown’s submission that for the purposes of s. 39 a surrender is independent of its terms
P. 239 “After the Crown’s agent had induced the Band to surrender its land on the understanding that the land would be leased on certain terms, it would be unconscionable to permit the Crown simply to ignore those terms”
The existence of such unconscionability is the key to a conclusion that the Crown breached its fiduciary duty. Equity will not countenance unconscionable behaviour in a fiduciary, whose duty is that of utmost loyalty to his principal

R v Sparrow
Therefore, 1. Have to prove an existing Abo right, and 2. That it hasn’t been extinguished. If these are established prima facie then 3. Have to look at whether there is an interference, and 4. Whether the interference is justified
1. is clear that the rights to which s. 35(1) applies are those in existence when the Constitution Act 1982 came into effect
It does not revive extinguished rights
Also it does not incorporate the specific manner in which it was regulated before 1982 – therefore aboriginal rights are not frozen, static
2. This is because, per A-G for Ontario v Bear Island Foundation, “the onus of proving that the Sovereign intended to extinguish the Indian title lies on the respondent and that intention must be clear and plain”
They could be extinguished up until 1982
4. If so, can the state justify the interference?
- onus is on the state
- Consider: valid legal objective? Safeguard priority for Abo interest? Minimal infringement? Fair compensation? Consultation?
Therefore, the framework provided by the SCC is as such:
1. Is there an existing Aboriginal right?
- onus is on challenger
2. Has the Aboriginal right been extinguished?
- onus is on the State is a “clear and plain” expression of intent to extinguish
3. Is the Abo right infringed upon by the state?
- onus is on challenger
- consider: unreasonable? Undue hardship? Denial of preferred means?
4. If so, can the state justify the interference?
- onus is on the state
- Consider: valid legal objective? Safeguard priority for Abo interest? Minimal infringement? Fair compensation? Consultation?

R v Van Der Peet
Elaborates on Sparrow test
1. What test should be used to identify whether something is an aboriginal right per s. 35(1)? (1. In Sparrow test)
In order to be in line with the purpose listed above, the test for identifying the aboriginal rights recognized and affirmed by s. 35(1) must be directed at identifying the crucial elements of those pre-existing distinctive societies
Therefore, we have to look at identifying the practices, customs, and traditions integral to these pre-existing societies
Therefore, the test should be as such: in order to be an aboriginal right the activity must be an element of a practice, custom, or tradition integral to the distinctive culture of the aboriginal group claiming the right
2. What factors should be considered when applying the “Integral to a Distinctive Culture Test”?
1. The court must take into account the perspective of the aboriginal people claiming the right
Note that one of the fundamental purposes of s. 35(1) is the reconciliation of the pre-existence of distinctive aboriginal societies with the assertion of Crown sovereignty
2. As well, it is important to precisely state the nature of the claim being made to determine whether an aboriginal claimant has demonstrated the existence of an aboriginal right before determining whether it is integral
Therefore, in this case the appellant’s claim was the right to sell fish, but not for a commercial purpose – it was on this fact the lower courts misconstrued the right being claimed
In order to properly classify a claim, the court should consider: nature of the action, the nature of the government regulation, statute, or action being impugned, and the practice, custom, or tradition being relied upon
3. The Custom or tradition defined in step 2 must be of “central significance to the abo society in question” (p. 275)
4. The practices, customs, and traditions which constitute abo rights must have continuity with those practices that existed prior to contact
In this case, it was held that pr-contact, the S fished for food, but not for sale. (p. 285) “As was noted above, to constitute an Aboriginal right, a custom must itself be integral to the distinctive culture of the aboriginal community in question; it cannot be simply incidental to an integral custom”
5. The practice, custom, or tradition needs only be distinctive, not necessarily distinct

R v Marshall
Step 1: Look at the wording of the Treaty itself
This is complicated by the fact that the British signed a series of agreements with the M’s in 1760 and 1761, but they weren’t consolidated into a single M treaty
Still, the trial judge was satisfied that the Treaty of Peace and Friendship was sufficient
Therefore, The question is whether the underlying negotiations produced a broader agreement between the Brits and the M, that would protect that appellant’s activities that are the subject of the prosecution
Step 2: Look at extrinsic evidence
The SCC rejects the notion of Roscoe and Bateman JJ.A. which is that “while treaties must be interpreted in their historical context, extrinsic evidence cannot be used as an aid to interpretation, in the absence of ambiguity” (p. 292)
Per Badger case, when looking at a treaty, the Court must look at the context in which it was negotiated, concluded, and committed to writing. This is because treaties, as written documents, record an agreement that was already reached orally but did not always record the full extent of the oral agreement (p. 294)
Therefore, “the bottom line is the Court’s obligation...to choose from among the various possible interpretations of the common intention [at the time the treaty was made] with the one which best reconciles the M interests and those of the British Crown” (p. 295)
Step 3: How do we then interpret the truckhouse clause?
Still, the SCC argues that The promise of access to `necessaries `through trade in wildlife was the key point in looking at the truck houses, and when that right was granted, the mere disappearance of the means by which the right was exercised (truck houses) is not enough to argue that the right is extinguished. (p. 305)
Step 4: these rights have to be restricted in scope
This is because the Crown expresses concern that the recognition of a constitutionally protected right such as trading would create a floodgate for uncontrollable and excessive exploitation of the natural resources(p. 305).
But the fact that trading is restricted to “necessaries”, the SCC argues, implies that it is not necessarily to economic gain or the accumulation of wealth, but just enough to provide for the necessaries of life
Therefore, this is not a commercial right, but rather a right to trade to acquire necessaries
Step 5: Apply the tests to the facts
The SCC used the infringement test in Sparrow:
Unreasonable? Deny the holders of the right the preferred means of exercising it? Impose undue hardship? Note the onus is on the challenger to establish a prima facie infringement
Yes, prima facie infringement
But note that there was no clause in the Regulations that established how to preserve M treaty rights
Because Crown didn’t believe a right existed (p. 308)
The SCC holds that the regulations infringe the appellant’s treaty rights under the Treaties and, unless justified by the Crown, are rendered inoperative
In the absence of any justifications, the appellant is entitled to an acquittal

R v Marshall No 2
5. In any event, what is the scope of regulatory power possessed by the government of Canada for purposes of regulating the treaty right?
Remember that the Badger case extended to treaties the test for justification of a prima facie infringement enunciated in R v Sparrow
Also, the SCC held that this questions is too broad to be capable of a detailed response
The test in Sparrow is as follows:
1. Valid legislative objective?
2. Does the justification coincide with the special trust relationship and the responsibility of the government vis-à-vis aboriginals (remember the fiduciary duty from Guerin)
In looking at this, there are sub tests: Little infringement as possible? Availability of fair compensation? Was the aboriginal group in question consulted with respect to the conservation measures being implemented?
Also, note that regulations that do no more than reasonably define the M treaty right in terms that can be administered by the regulator and understood by the M community that holds the treaty rights to not impair the exercise of the treaty right (instead, remember accommodates it) and therefore do not have to meet the Badger standard of justification (p. 322)
Therefore, only regulatory limits that would bring M catch limits below what would be required for a moderate livelihood have to be justified under the Badger test
Still, in the original case, a majority held that in the absence of such justification, the appellant is entitled to an acquittal
Therefore, there is no need to go further in the analysis

Delgamuukw v BC
1. Do the pleadings preclude the Court from entertaining claims for aboriginal title and self-government?
The trial judge did agree with the respondents that the second factor led to some prejudice, because they would have compiled their defence differently had they known they would be facing communal instead of individual claims
2. What is the ability of this Court to interfere with the factual findings made by the trial judge?
Unless there is a “palpable and overriding error” appellant courts should not substitute their own findings of fact for those of the trial judge (p. 331)
This is meant to protect the autonomy and integrity of the trial process
Therefore, there are two principles that determine how trial courts should properly address aboriginal claims – if these aren’t followed, then appellate intervention may be necessary:
1. Trial courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims; 2. Trial courts must interpret that evidence in the same spirit – must be understood against this background
With regards to 1. There must be a continuity in aboriginal practices (whose origins are pre-contact) for them to constitute an aboriginal right
With regards to 2. The court must give due weight to oral histories which describe aboriginal activities pre-contact
3. What is the content of aboriginal title, how is it protected by s. 35(1) of the Constitution, and what is required for its proof?
The SCC held that aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights
Instead if gives the right to use the land for many activities, not all of which need to be aspects of practices, customs, and traditions which are integral to the distinctive cultures of aboriginal societies (and thus protected by s. 35(1))
However, it must not be irreconcilable with the groups’ attachment to the land
See second step of the proof test below
However, these activities do not constitute the right per se, rather they are parasitic on the underlying title (p. 337)
What the PC meant to say here is that aboriginal title is a sui generis interest in land which has many dimensions
One is inalienability – land held pursuant to aboriginal title cannot be transferred, sold or surrendered to anyone other than the Crown
Another is its source – although aboriginal title was recognized by the Royal Proclamation, it arises from the prior occupation of Canada by aboriginal peoples
Physical occupation is important, since it comes from the common law principle that occupation is proof of possession in law
Another is the fact that it is held communally – can’t be held by individual aboriginal persons
Therefore, when looking at St Catherine’s Milling, along with Guerin, Calder, and Paul cases, aboriginal title can be summarized as such:
Sub Step 1: It encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices (integral)
Sub Step 2:Those protected uses must not contradict the nature of the group’s attachment to the land
Therefore, the test for proof of aboriginal title is as follows:
1. The land must have been occupied prior to sovereignty
Therefore, to establish a claim to aboriginal title, the group asserting the claim must have occupied the lands in question at the time which the Crown asserted sovereignty over the land subject to the title (p. 348)
This is because aboriginal title is a burden on the Crown’s underlying title, but the Crown did not gain this title under it asserted sovereignty over the land in question
2. If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation
Per Van der Peet, it would be next to impossible for an aboriginal group to provide conclusive evidence re: pre-contact practices, customs, and traditions
Although aboriginal title claims only require occupancy pre-sovereignty, the same solution is to be used
The aboriginal group may provide evidence of present occupation as proof of pre-sovereignty occupation in support of a claim to aboriginal title (p. 350)
3. At sovereignty, occupation must have been exclusive
exclusive occupation can occur in title cases even if other aboriginal groups were present or frequented the claimed lands
All that is required is the capacity to maintain exclusive control over the lands
Can be shown in aboriginal law – do other bands/etc need their permission to use the land
Shows intention to have exclusive possession
5. Did the province have the power to extinguish aboriginal rights after 1871, either under its own jurisdiction or through the operation of s. 88 of the Indian Act?
This appeal raises three specific questions:
1. Does the Province of British Columbia, from Confederation until 1982, have primary jurisdiction to extinguish aboriginal rights protected by s. 35(1)?
S. 91(24) of the Constitution Act 1867 gives the Feds jurisdiction to legislate re: “Indians, and lands reserved for the Indians”
It was held in St. Catherine’s Milling that “all lands” encompasses both reserve lands, and lands held pursuant to aboriginal title as well.
Therefore, it can be inferred that the Feds would have the sole jurisdiction to extinguish aboriginal title as well
2. If it didn’t have such jurisdiction, can provincial laws not in pith and substance aimed at extinguishing aboriginal rights do so anyway because they are laws of general application?
provincial laws which single out Indians for special treatment are ultra vires
However, provincial laws of general application apply proprio vigour to Indians and Indian Lands
Examples of such are provincial labour relations legislation, and motor vehicle laws (p. 361)
However, can these laws extinguish aboriginal rights?
Per Sparrow, to extinguish an aboriginal right, there has to be a sufficiently clear and plain intention to extinguish them in the legislation – therefore the provincial government could never extinguish these rights through laws of general application since they could never be specific enough without being ultra vires the Province (p. 362)
3. Can a provincial law, which could not otherwise extinguish these rights, do so through s. 88 of the Indian Act?
However, per Hogg, all s. 88 does is extend the effect of provincial laws of general application that would not apply to Indians and Indian lands because they touch on the core of Indianness per s. 91(24)
For example, a provincial law regulating hunting would touch on this core
However, s. 88 does not negate the fact that there has to be evidence of a clear and plain intention to extinguish aboriginal rights in the Indian Act for it to be able to effectively do so(p. 363)
There is nothing in the language of s.88 which suggests the intention to extinguish Indian rights

Dick v The Queen