TOPIC #6 – THE CANADIAN CONSTITUTION – PART 2
III. Negotiating Constitutional Change
1. Historical Context
Beginning of 1960, regular discussions between federal/provincial government over possible constitutional changes – “first minister
conferences” – 10 premier & prime minister (Took about 15 years because many disagreement)
Few priorities :
o To add a charter of rights – mostly by federal (Trudeau)
o Patriation of the constitution (making it exclusively Canadian, not just a British statue) – If we needed to change constitution, we
had to ask Britian.
o An amending formula – how do we change constitution? How much approval do we need? Complete consensus or majority? etc
2. The Amending Formula Impasse
How much approval do we need? = Need federal consent? Federal + 5 provinces? 6? Unanimous consent formula?
Major point: If unanimous consent what if small provinces like PEI can hold entire country ransom on constitutional negotiations
o Federal + majority? How many? What about bigger provinces? Eg Quebec > PEI?
o When federal government tried to approach Britain on its own, provincial government went to supreme court to stop this. Supreme
court said : “federal + substantial majority of provinces”
What is substantial? 7-9? -- > thus don‟t need unanimous
Fall 1981 – federal + 9 other premier made an agreement, without Quebec.
IV. The Constitution Act, 1982
The Charter of Rights and Freedoms
(a) Section 1: Limitation Clause
“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.”
o Says all the rights are subjected to „limits‟ - No right is absolute
o This document mainly protects our individual rights against government actions, not against private individuals
o Reasonable limits – eg someone cannot say anything about anyone, calling someone a pedophile randomly
o All limits must be prescribed by law – government must pass law to give you limits
o This section only comes in when you have established that the government has violated your rights - then judge
decides whether it is a reasonable limit or not
The Oakes Test
o In order for the government to win a case when they have violated a charter rights, they must pass all 4 parts, in
order to prove it was a reasonable limit:
1) Sufficiently important legislative objective –The objective must relate to concerns which are pressing and substantial
2) Rational connection – between violation and important objective – causal relationship. Violating the rights was
necessary to achieve the objective.
3) Minimal impairment – must violate the rights minimally, do not violate the charter any more than it is absolutely
necessary for you to achieve objective – eg kill bug with thumb or grenade
4) Overall balance (between effects of the measure, and the legislative objective) – charter violation (bad) vs objective
(good) – if objective very big and violation is small, then government will win. See who weighs more then they win.
EXAMPLE: R. v. Oakes (1986)(SCC)
o Facts: Oakes was charged possession of a narcotic for purpose of trafficking … s. 8 of NCA provides that if during a
trial the judge finds that the accused was in possession of a narcotic, there is presumption accused had it for purpose
of trafficking (a presumption which is rebuttable by accused) …
this violated s.11(d) and was not a reasonable limit under s.1 …
o Reasoning: Section 11(d) violation “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;”
… The presumption of innocence is protected by 11(d) … because under s.8 of the NCA an accused is
presumed to be a drug trafficker only upon proof of simple possession of a narcotic (unless the accused can
prove otherwise) this is a clear violation of the presumption of innocence
o The Oakes Test: Part 2: Rational Connection
drug trafficking is a pressing and substantial concern
however, there is no rational connection between the fact (possession of drug) and the presumed fact (that it
is possessed for purpose of trafficking) and the legislative objective of controlling or minimizing drug
such a presumption is irrational and unfair in circumstances where small quantities of drugs are involved [so,
for example, possession of small amount of drugs would have nothing to do with trafficking, and a violation
of the 11(d) right in these circumstances would do nothing to address the pressing and substantial concern]
Part 3. No minimal impairment – violate everyone‟s presumption of innocence, no matter what amount
they processed *exam, argue all 4 parts (b) Section 2: Fundamental Freedoms
Everyone has the following fundamental freedoms:
A. freedom of conscience and religion;
B. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
C. freedom of peaceful assembly; and
D. freedom of association.
o Freedom of religion:
Can have your own religion, can practice whatever you like
* Also have right not to have the religion imposed on you by the state eg shopping mall example
R. v. Big M Drug Mart (1985)(SCC)
Couldn‟t shop on Sunday – prohibited The Lords Day Act
Big M decided to open – they argued that Lords Day Act was unconstitutional because it violated
their freedom of religion (s.2(A) ) and all the customer‟s religion
o Freedom of expression:
can express yourself in anyway you want, as long as it is not violent
* Also cannot force you to say what you don‟t want to:
RJR-MacDonald Inc. v. Canada (1994)(SCC)
Cigarette warning – government force them to put warning on packages
Lost oakes test – good legislative objective > violating the freedom of expression
o Freedom of peaceful assembly:
right to peacefully gather, not even for political purpose, can watch hockey game etc
o Freedom of association:
associate with others in groups that you may not even meet eg join political party, union, clubs
Everyone has these fundamental freedoms: not just citizens, it involves anyone who is in Canada.
(c) Sections 3-5: Democratic Rights
Democratic Rights: just citizens
Section 3: Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative
assembly and to be qualified for membership therein.
o All citizens can vote, and can run in an election
o Under 18 cant vote – yes violated section 3, but justified-able under section1
Section 4: tells us how these people should behave after they are elected
o (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed
for the return of the writs of a general election of its members.
Bc made statue to have it ever 4 years
Section 5: There shall be a sitting of Parliament and of each legislature at least once every twelve months
o Must gather together physically to do legislative business
EXAMPLE: The right to vote: Sauve v. Canada (2003)(SCC)
o Every citizen has right to vote? Then what about people under 18? What about those in prison - Yes?
o Sauve - federal prisoner who wanted to vote – federal election act said if you are incarcerated you cannot vote, sauve
took to supreme court, supreme court agreed it was violation of rights – section 1 said it is not a reasonable limit to
not let them vote
(d) Section 6: Mobility Rights
(1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
o (a) to move to and take up residence in any province; and
o (b) to pursue the gaining of a livelihood in any province. (can get a job anywhere)
(3) The rights specified in subsection (2) are subject to
o (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided
social services. (government are allowed to impose residency requirement for government programs eg bc student
cant go and pay quebec tuition, bc citizen cant get quebec welfare) (e) Sections 7-14: Legal Rights
“The legal right” – rights that arise when you are facing a prosecution, not exclusively (eg s.7), when you are being
investigated, charged, trialed, for an offence.
Life, liberty and 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived
security of person thereof except in accordance with the principles of fundamental justice.
Protecting you from government action – however government can violate your life, liberty, security, AS LONG as it follows the
principles of fundamental justice
o Life / death – government cannot threaten your life – rarely comes up
o Liberty – freedom in a physical sense (move freely without constraints) – violated when arrested but is justified,
freedom in a psychological sense (can make “fundamentally important personal” decision – eg smoking pot – it is not
fundamentally important so would not be allowed)
o Physical security – eg no torture, government cant tax someone 100% drive them into poverty, violating security
of person. However they can do so if they follow a fair process, eg before sending to someone to jail, you go through
a trial first, right to know case against you, right to legal representation, right to neutral/unbiased decision maker
(judges), clear decision and full reasons provided, etc
o As long as government follow fair process, they can form fundamental justice, then they can violate life/liberty/security
R. v. Morgentaler (1988)(SCC)
o Law existed before said abortion can only be performed at a credited hospital, and only if continued pregnancy would endanger
life/health of the women
o Morgentaler believe they should have right choose to continue pregnancy or not – he set up abortion clinics, did not try to hide this
either, charged under criminal code provision because criminal code said “abortion can only performed AT a hospital IF approved by
therapeutic commission committee”
o Morgentaler said this law violates section 7 – criminal code restriction on abortion amounted to a violation of a women‟s right to
liberty and security
liberty = decision to continue pregnancy and have a child is one of the most fundamentally important personal decision a
woman will make in her life and state should not interfere with that
security = this law let state dictate a women by law how to use her body for the next 8-9 months
this law no longer applies, it is unconstitutional
Search or seizure 8 . Everyone has the right to be secure against unreasonable search or seizure.
Free society, don‟t want to be searched for no reason anytime anywhere police wants. However police must be able to
conduct searches to enforce the law
Law enforcement is not allow to conduct a search unless they have reasonable grounds to believe a offences has been
Warrants = hard dividing line between reasonable/unreasonable searches, most searches require warrents( judicial approval).
If police want to search, they go to judge satisfy why they have reasonable ground to believe that evidence may be found at
the location, if judge agrees he will issue warrant, then police can conduct the search. If they kick your door in without warrant,
it is a violation of section 8.
Detention or 9. Everyone has the right not to be arbitrarily detained or imprisoned.
State can only detain someone for good reason, only according to law, not arbitrarily
Not used often because Canada rarely arbitrarily detain/imprison someone
Arrest or detention 10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;