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Review of Constitutional Studies: Issue 28.2

The Centre is excited to announce the publication of our latest issue of the Review of Constitutional Studies, which is now available via EBSCO and will be available in due course on Heinonline. This latest issue, issue 28.2, is an open issue that also features two reprinted articles by Professors Robert Brandom and Cheryl Misak. These articles are reprinted to commemorate the Centre's "Law and Pragmatism" lecture series, which ran from late 2023 to early 2024 and was organized by the Review's Co-Editor-in-Chief, Professor Josh Nichols (McGill). We're grateful to Professors Brandom, Misak, and Nichols for facilitating the republication of these exceptional papers, and for giving us the opportunity to bring them to a new audience. We're also grateful to the other contributors to this issue: David Dyzenhaus, Maguid Nicholas, Johnny Mack, and Jean Leclair.

Constitutional Forum: Issue 33.2

We're excited to announce the publication of our latest open issue of the Constitutional Forum, guest edited by CCS Summer Students Krystin Hoffart, Laura McKenzie, and Saloni Sharma. To view individual articles in the new issue, please click the links below.

Table of Contents (PDF)

Articles

Natasha Bakht & Lynda Collins, Notwithstanding the Notwithstanding Clause: A Case for Constitutional Guardrails on Section 33 of the Charter of Rights and Freedoms

Emmett Macfarlane, Not Merely Interpretative: The Supreme Court’s Application of Section 25 of the Charter of Rights and Freedoms and its Implications for Section 28

Sandrine Ampleman-Tremblay, R v Lufiau, R v Varennes, and The Gamble of Litigating a “Right” to Jury Trials Outside of Section 11(f)

Peter Wills & Mary Angela Rowe, The Prudent Parliament and Section 24(1)

Criminal Law Power

The criminal law power is a legislative power allocated to Canada’s federal government via the Constitution Act, 1867. More specifically, section 91(27) of this Act gives Parliament exclusive jurisdiction over “The Criminal Law, except the Constitution of the Courts of Criminal Jurisdiction, but including Procedure in Criminal Matters.”^[2] This means that legislation that falls within the scope of section 91(27) must come from the federal Parliament (and not provincial legislatures) to avoid being struck down as ultra vires — i.e. beyond the responsibilities legally allocated to the government.^[3]

The Scope of Section 91(27)

The criminal law power is notably broad.^[4] According to the Supreme Court’s landmark judgment in the Margarine Reference, section 91(27) extends to any legislation that contains a prohibition, a penalty, and a valid criminal law purpose. In that case, for example, the Court held that a federal ban on the manufacture and sale of margarine was ultra vires, because the true purpose of the ban — protection of the dairy industry — didn’t constitute a valid criminal law purpose.^[5]

In general, however, all elements of the criminal law power test (prohibition, penalty, and purpose) have been interpreted liberally by the courts. Prohibitions can include exemptions^[6] and regulations,^[7] and while the list of valid purposes was originally framed to include “public peace, order, security, health, [and] morality,”^[8] this is a non-exhaustive list — neither “frozen in time [n]or confined to a fixed domain.”^[9] As a result, recent decades have seen the emergence of new valid purposes alongside novel issues, such as environmental protection or the reduction of tobacco use through restrictions on advertising.^[10]

Provincial Governments and the Criminal Law

Jurisdictional disputes will sometimes come up between the federal and provincial governments around the criminal law power. This is because section 92 of the 1867 Act sets out areas of provincial jurisdiction which can sometimes conflict or overlap with the federal criminal law power. Examples include section 92(13), which addresses “Property and Civil Rights in the Province,”^[11] and section 92(16), which addresses “Generally all Matters of a merely local or private Nature in the Province.”^[12] Where it is unclear if a law falls under one of these sections or section 91(27), courts will resolve the lack of clarity by assessing the pith and substance of the legislation to determine 1) what the dominant characteristic of the law is, and 2) which head of power that characteristic falls under.^[13]

Although Parliament has a monopoly over the creation of criminal law and procedure per section 91(27) of the 1867 Act, it is important to point out that provincial governments continue to play an important role in the implementation of criminal law. The administration of justice, for example, is placed within the purview of the provinces via section 92(14),^[14] and they accordingly exert significant influence over criminal law through their “decisions to investigate, charge and prosecute offences.”^[15] Moreover, the provinces also maintain control over prisons per section 92(6) of the Act, and can legislate punishments (including imprisonment) for provincial laws per section 92(15) — as long as such laws simply enforce other legislation within provincial jurisdiction ).^[16]

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

^[2] Ibid at s 91.

^[3] Cambridge Business English Dictionary, (Cambridge University Press, 2011) sub verbo “ultra vires”, (online): <dictionary.cambridge.org> [perma.cc/8T2K-BSXV].

^[4] RJR-MacDonald Inc v Canada (Attorney General), 1995 CanLII 64 (SCC) at 201.

^[5] Peter Hogg, Constitutional Law of Canada, 5th ed, vol 1 (Toronto: Thomson Carswell) at 18-5.

^[6] Supra note 4 at 202.

^[7] Supra note 5 at 18-30.

^[8] Reference re Validity of Section 5 (a) of the Dairy Industry Act, 1948 CanLII 2 at 50.

^[9] Supra note 4.

^[10] R v Hydro-Québec, 1997 CanLII 318 (SCC).

^[11] Supra note 1 at s 92.

^[12] Ibid.

^[13] See, for example, Westendorp v The Queen, 1983 CanLII 1 (SCC).

^[14] Supra note 5 at 19-2.

^[15] Ibid at 18-2.

^[16] Ibid at 18-3.

Section 25

What is Section 25?

Section 25 of the Canadian Charter of Rights and Freedoms^[1] is a provision that sets out how the Charter affects the rights and freedoms of Indigenous peoples in Canada. It is potentially engaged where there is an apparent conflict between an Indigenous right and another, generally applicable right listed in the Canadian Charter.

The text of Section 25’s text reads:

The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including: a. any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and b. any rights or freedoms that now exist by way of land claim agreements or may be so acquired.^[2]

Section 25 at the Supreme Court of Canada

In the first forty years of the Charter’s lifespan, section 25 was rarely considered by the Supreme Court of Canada (SCC).^[3] One exception to this was in Corbiere (1999),^[4] when the SCC stated that section 25 protects “broader” rights and freedoms than section 35 of the Constitution Act, 1982, and can extend to protect statutory rights in some cases.^[5] Corbiere also marked the first reference to the “shielding” function of section 25,^[6] which was then explored further in Kapp,^[7] and ultimately became one of the two dominant interpretations of section 25. The gist of this interpretation is that it treats section 25 as a “shield” against Charter challenges. On this view, invoking section 25 will defeat a Charter challenge that would result in a violation of certain protected Indigenous rights (those that are within the “scope” of section 25).^[8] This interpretation was favoured by Justice Bastarache of the SCC in Kapp and has been endorsed by lower courts, too.^[9]

By contrast, the interpretive prism approach is the second of the two dominant interpretations of section 25. This interpretation depicts section 25 as an interpretive provision that requires courts to read Charter rights and Indigenous rights to give as much effect as possible to both but affording “no special priority” to the Indigenous right.^[10] While this approach was rejected by Justice Bastarache in Kapp, it has subsequently been partially accepted, as explained below.

**The Section 25 Framework Today: The Dickson Case**

In Dickson, the SCC provided a long-awaited, comprehensive interpretation of section 25. They clarified the section’s function and provided the test for its application, moving forward. Considering the two interpretations from Kapp, the Dickson Court held that both interpretations should be used to understand section 25.^[11] Section 25 has a “shielding” effect as “it affords primacy to Aboriginal, treaty, or other rights.”^[12] However, it is not enough to prove that an Aboriginal, treaty, or “other right or freedom” is engaged; rather, there must also be an irreconcilable conflict between the Charter right and the section 25 right, and this must be demonstrated by the party invoking section 25.^[13]

To reach this conclusion on the meaning of section 25, the Court looked closely at the language of section 25’s text, suggesting that the words “abrogate and derogate” indicate that the individual Charter right must not nullify, repeal, detract or depart from the collective Indigenous rights at stake (and hence, that the “shield” approach is at least partly correct).^[14]

The Dickson Court also took the opportunity to clarify what section 25’s category of “other” rights.^[15] Here, the Court found that section 25 claimants must “establish both the existence of the right and the fact that the right protects or recognizes Indigenous difference,” and that this difference would encompass interests connected to “cultural difference, prior occupancy, prior sovereignty, or participation in the treaty process.”^[16]

The Court proceeded to lay out the following step-by-step framework for section 25.

The Charter claimant shows that there has been a prima facie breach of their individual Charter right;
The party relying on section 25 to block the Charter challenge must show that the alleged right in question falls within the scope of section 25;
The party relying on section 25 must prove an irreconcilable conflict between the section 25 right and the individual Charter If there is a proven irreconcilable difference, section 25 will act as a shield protecting Indigenous difference;
The courts must then determine if other provisions of the Charter or the Constitution Act, 1982 place limits on the protection of the section 25 right.^[17]

Notably, the SCC added that this framework will apply regardless of a claimant’s identity, meaning that the same process applies for Charter claims from Indigenous and non-Indigenous persons that risk limiting (collective) Indigenous rights.^[18] And even if section 25 is not engaged, the collective right may still be prioritized via the section 1 justification stage of the Charter analysis, which will play out if the section 25 claim fails.

^[1] Canadian Charter of Rights and Freedoms, s 15(1) Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

^[2] Ibid, s 25.

^[3] Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 [Dickson].

^[4] Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203.

^[5] Ibid at para 52.

^[6] Ibid at paras 51-53

^[7] R v Kapp, 2008 SCC 41 at para 79 [Kapp].

^[8] Dickson, supra note 3 at para 153.

^[9] Ibid at paras 155 and 157.

^[10] Ibid at para 154.

^[11] Ibid at para 158.

^[12] Ibid at paras 150-152.

^[13] Ibid at paras 150, 152, 167.

^[14] Ibid at para 124.

^[15] Ibid at para 150.

^[16] Ibid at para 150.

^[17] Ibid at paras 179-183.

^[18] Ibid at para 166.

Principles of Fundamental Justice

Purpose

Principles of fundamental justice (PFJs) are used to determine whether section 7 of the Charter of Rights and Freedoms has been violated. Section 7 establishes that “[e]veryone 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.”^[1] This means that a party asserting a section 7 violation must demonstrate a breach of 1) life, liberty, or security of the person, and 2) at least one PFJ.^[2] Claimants may base their arguments on already established PFJs or previously unrecognized principles that meet certain standards (see below).

Criteria

PFJs are not defined in the Charter, so the criteria for what constitutes a PFJ had to be developed gradually through case law. Although originally thought to address procedural matters only, the Supreme Court of Canada’s BC Motor Vehicle Act judgment (1985) established that PFJs also include substantive ideals,^[3] like the requirement of proving fault before imposing incarceration.^[4]

In R v Malmo Levine, the Supreme Court provided additional clarification by establishing three requirements for legal recognition of a previously unrecognized PFJ:

They must be “legal principle[s].”^[5]
There must be “significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate.”^[6]
They “must be identified with sufficient precision to yield a manageable standard.”^[7]

Examples

Courts have used the R v Malmo Levine criteria to recognize a wide range of PFJs (and recognized many PFJs before the establishment of these criteria). The most common PFJs used by the courts today are arbitrariness, overbreadth, and gross disproportionality,^[8] which can be defined as follows:

A law is arbitrary when its purpose fails to align with all of its effects.^[9]
A law is overbroad when its purpose is disconnected from some of its effects.^[10]
A law is grossly disproportionate where its effects are unjustifiably excessive.^[11]

Some other principles of fundamental justice that have been recognized by the courts — but are less commonly referenced — include the principle that criminal defences must be practically attainable,[12] the principle that nobody should be imprisoned without fault,[13] and the principle that criminal defendants have a right to prosecutorial disclosure.[14] This list is non-exhaustive, which means that courts may recognize additional principles of fundamental justice in the future.

[1] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[2] Peter W Hogg, Constitutional Law of Canada, 5th edition, vol 2 (Toronto: Carswell, 2019) at 47.10(a).

[3] Re BC Motor Vehicle Act, 1985 CanLII 81 (SCC) at 513.

[4] Government of Canada, “Section 7 – Life, liberty and security of the person” (last modified 29 June 2023) at (i) “Substantive Fundamental Justice” (para 8), online: <justice.gc.ca> [perma.cc/52LS-9XG8 ].

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

[6] Ibid.

[7] Ibid.

[8] Peter W Hogg, “The Brilliant Career of Section 7 of the Charter” (2012) 58 SCLR 195 at 155.

[9] Government of Canada, supra note 4 at (i) “Substantive Fundamental Justice” (para 2).

[10] Ibid.

[11] Ibid at (i) “Substantive Fundamental Justice” (para 4).

[12] R v Morgentaler, 1988 CanLII 90 (SCC) at 33.

[13] Re BC Motor Vehicle Act, 1985 CanLII 81 (SCC) at 515.

[14] R v Stinchcombe, 1991 CanLII 45 (SCC) at 336.

Environmental Jurisdiction

Who Can Regulate the Environment in Canada?

The provincial and federal governments share jurisdiction over the environment.^[1] The legislative powers of both levels of government are derived from sections 91 to 95 of the Constitution Act 1867, but these sections do not explicitly allocate power over “the environment” to one level or the other.^[2] Consequently, environmental regulation has often been a complex area for governments to navigate.

Federal Environmental Jurisdiction

The federal government can use several of the legislative powers granted to it under section 91 of the Constitution Act, 1867 to regulate different aspects of the environment. These include federal jurisdiction in relation to trade and commerce (91(2)), taxation (91(3)), fisheries (91(12)), Indigenous peoples (91(24)), navigation and shipping (91(10)), and criminal law (91(27)).^[3]

For example, the Supreme Court of Canada (SCC) decision in R v Hydro-Québec demonstrates that the federal government can validly regulate the environment under its criminal law power.^[4] For the federal government to use this power, its legislation must take the form of a prohibition, backed by a penalty, with a valid criminal law purpose.^[5] In Hydro-Quebec, the SCC found that environmental protection was a valid criminal law purpose, and that a federal law that empowered government ministers to regulate the release of certain “toxic” substances into the environment was a valid exercise of the federal criminal law power.^[6]

The Federal “POGG” Power

The opening paragraph in section 91 also allows the federal government to regulate matters affecting the “Peace, Order, and Good Government of Canada” (POGG for short). Today, courts recognize three branches of POGG: the national concern branch, the emergency branch, and the residual branch. A recent valid use of POGG in the context of the environment is seen in the References re Greenhouse Gas Pollution Act (GGPPA) from 2021.^[7]

In this case, a majority of the SCC found that the GGPPA, a federal law aiming to regulate greenhouse gas (GHG) emissions by implementing minimum national standards of GHG pricing stringency, was constitutional.^[8] This case came to the SCC on appeal after the Alberta, Ontario, and Saskatchewan governments asked their courts of appeal if the federal government had overstepped its jurisdiction by passing the Act.^[9] In a landmark ruling, the SCC held that federal POGG powers enabled the government to pass the Act.^[10] The Court framed the issue of establishing minimum national standards vis-à-vis carbon pricing as a matter of national concern that provincial governments were unable to address on their own (see here for a more comprehensive analysis of the GGPPA decision).^[11]

Provincial Environmental Jurisdiction

Like section 91, there is no explicit reference to the environment in section 92, which enumerates most of the provincial government’s legislative powers. However, provinces can regulate the environment through multiple heads of power, including their powers over natural resources (92A), local works and undertakings (92(10)), property and civil rights (92(13)), and matters of a local or private nature (92(16)).^[12]

A recent case that highlights the potential for inter-governmental conflict over environmental issues is the Reference re Impact Assessment Act (2023).^[13] The Impact Assessment Act is a federal law that allows the government to assess the environmental impact of different types of “designated projects” and to place restrictions on projects with purportedly adverse effects.^[14] Here, the SCC found that some sections of the Act were constitutional, but the “balance of the scheme” was ruled unconstitutional due to its overbreadth.^[15]

This decision was celebrated by the Alberta government, which had initiated the action against the law. In response, Premier Danielle Smith suggested that the federal government should take the decision as a lesson to “abandon their ongoing unconstitutional efforts to seize regulatory control over the electricity and natural resource sectors of all provinces.”^[16]

Following the decision, the federal government proposed amendments to the law to fix its constitutional defects.^[17] However, the Alberta government has already criticized the amendments, stating that they are unconstitutional, and that they will consider challenging them in court.^[18]

Looking Forward

The recent Canadian case law reflects the extent of intergovernmental tensions over environmental regulation, with jurisdictional disputes continuing across the country. For example, the Government of Saskatchewan decided to stop remitting the federal carbon tax in response to the federal government’s decision to exempt home heating oil but not natural gas from the carbon tax (the latter is widely used in Saskatchewan for home heating).^[19] This shows that environmental jurisdiction remains exceptionally contentious in Canada, and will likely result in many future actions in the courts.

^[1] Peter Oliver et al, The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017) at 494.

^[2] Ibid.

^[3] Ibid at 495-6.

^[4] Ibid at 496.

^[5] Reference re Validity of Section 5(a) Dairy Industry Act, [1949] SCR 1 at 50.

^[6] R v Hydro-Quebec, [1997] 3 SCR 213 at para 146 [Hyrdro-Quebec].

^[7] References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11.

^[8] Ibid at paras 57 & 221.

^[9] Ibid at para 39-46.

^[10] Ibid at para.

^[11] Ibid at para 167.

^[12] Oliver et al, supra note note 1 at 499.

^[13] Reference re Impact Assessment Act, 2023 SCC 23.

^[14] Ibid at para 5.

^[15] Ibid at paras 215-216

^[16] Premier Danielle Smith and Minister Mickey Amery, “Supreme Court of Canada ruling: Joint statement”, Government of Alberta (October 13, 2023), online: <https://www.alberta.ca/release.cfm?xID=89093A2A5472B-F26C-C1A2-A129EE73F4A01853>.

^[17] David Thurton, “Alberta calls Ottawa’s impact assessment changes unconstitutional”, CBC News (12 May 2023), online: <https://www.cbc.ca/news/politics/impact-assessment-alberta-1.7202785>.

^[18] Ibid.

^[19] Jeremy Simes “Sask. government introduces law to stop collecting carbon tax on natural gas”, CBC News (16 November 2023), online: <https://www.cbc.ca/news/canada/saskatchewan/government-introduces-law-stop-collecting-carbon-tax-natural-gas-1.7030339>.

Event Video: Mark Mancini on Charter Values and the Allure of the Unwritten