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  • Constitutional Law accounts for 135 out of 726 casebriefs.

Style of causeRatio

Dunmore v. Ontario (Attorney General), 2001 SCC 94

Although the Charter traditionally does not apply to government action violating civil liberties, inaction in a legislated area which encourages or sustains the violation of fundamental freedoms can be scrutinized under s.2.

Edmonton Journal v. Alberta (Attorney General), [1989] 2 SCR 1326

All stages of the Oakes test are considered contextually. Charter rights are not considered in a vacuum.

Edward Books and Art v. The Queen, [1986] 2 SCR 713

The effects of legislation can coincide with a religious doctrine without being deleterious, and can be saved using a s.1 analysis. This case is a good example of judicial deference.

Edwards v A.G Canada [1930] AC 123, 1 DLR 98 (PC)

1. Acts (Constitution, Statute) that refer to “persons” are referring to both the male and female sexes. (there is some debate about this)

2. The words ‘qualified persons’ in the BNA act in s.24 include women and therefore women are eligible to become members of the senate

Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624

If an entity’s act is truly governmental in nature, that entity will be under Charter scrutiny only with respect to that act - not all of their private activities.

Figueroa v Canada (Attorney General), [2003] 1 S.C.R. 912

The purpose of s.3 is the preservation of the right of each citizen to play a meaningful role in the electoral process.
**Right to effective representation

Ford v Quebec (Attorney General), [1988] 2 SCR 712

Commercial advertising constitutes expression under section. 2(b).

Purpose of 2(b) of the Charter (the underlying principles):
** 1. Seeking truth as an inherently good activity;
** 2. Participation in social and political decision making is to be fostered and encouraged;
** 3. The diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated, in an essentially tolerant environment, not only for the sake of those who convey a meaning but also for the sake of those to whom it is conveyed.

Ford v. Quebec, [1988] 2 SCR 712

S. 33 cannot be used retroactively. If it is used, it must be spelled out clearly what sections will be overwritten.

Fort Frances Pulp and Paper Co. v Manitoba Free Press Co., [1923] A.C. 695 ( PC)

Dominion is excluded from trenching on property and civil rights in the Province, yet in a sufficiently great emergency, there is implied power to deal adequately with that emergency for the safety of the dominion as a whole – s.92 is not repealed in any way

Four B Manufacturing v United Garment Workers, [1980] 1 SCR 1031

The majority held that for federal labour law to apply the operations must be “so closely connected with Indian status that they should be regarded as necessary incidents of status” – status test

Fraser v Canada (Public Service Staff Relations Board), [1985] 2 SCR 455

Public servants must not engage in sustained and highly visible attacks on major government policies.

Public servants have a duty of loyalty to their employer, except if the government is engaged in illegal acts or if its policies jeopardize the life, health or safety of the public servant or others.

Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 S.C.R. 3

Environment like health is unenumerated – and both govs can regulate the environment if they can anchor the legislation in one of their own powers

Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1. SCR 3

Jurisdiction over the enviro is shared – prov and fed may have jurisdiction over the environment

General Motors of Canada v City National Leasing, [1989] 1 SCR 641

Test when challenging a provision of an act (not the entire act):
1. Court must determine whether the impugned provision can be viewed as intruding on provincial powers, and if so to what extent (if no intrusion inquiry ends):
**a. Do a pith and substance analysis of the provision – what does it do, why, etc.
2. Court must establish whether the act is valid (go through analysis of classification of the act – do pith and substance of entire act):
**a.If not valid, end of inquiry;
**b.If valid move on to 3.
3. Court must determine whether the impugned provision is sufficiently integrated w/ the scheme that it can be upheld by virtue of that relationship (this step is quite subjective):
**a. Requires considering the seriousness of the encroachment on prov powers, in order to decide proper standard for such relationship:
***i. If deeply instructive provisions only saved if it is necessarily incidental (act cannot function w/o that provision);
***ii.If it is a lower level of intrusion the provision can be saved it is has a rational, functional connection – further the operation of the act in some way (ensuring the provision is not just tacked on or colourable)

Test for General Trade and Commerce Power aka Parsons 2 (if provision is challenged, this corresponds to step 2 of necessarily incidental doctrine):
**1. Impugned legislation must be part of a general regulatory scheme (reqmt of form)
**2. The scheme must be monitored by continuing oversight of a regulatory agency (reqmt of form)
**3. Legislation must be concerned with trade as a whole rather than with a particular industry
**4. Legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting (like Crown Zellerbach)
**5. 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
*List is NOT exhaustive – absence of one of these aspects is not fatal (apparently)
*The overriding consideration is whether what is being addressed in a federal enactment is genuinely a national economic concern and not just a collection of local ones

Godbout v. Longueuil (City)

Municipalities are likely subject to Charter scrutiny, however the decision was a concurring judgement and the matter has not been decided by an SCC majority. Municipal by-laws are subject to the Charter.