1 . Reference re Securities Act (2011)
Reference re Securities Act is a landmark opinion of the SCC to a reference question posed on the extent of the ability of Parliament of
Canada to use its trade and commerce power.
The federal gov’t wanted to enact the Securities Act they wanted securities regulation to be of federal matter and petitioned the SCC
to see whether the Act would be constitutional. The question posed was: “Is the proposed Canadian Securities Act within the
legislative authority of the Parliament of Canada?”
The argument of the federal gov’t was that securities fell under section 91(2) of the Constitution of Canada Regulation of Trade and
Commerce. The provincial gov’ts argued that securities regulation fell under section 92(13) Property and Civil Rights in the
The SCC held that, as presently drafted, the proposed Act is not valid under the general branch of the federal power to regulate trade
and commerce. It is mainly focused on the daytoday regulation of all aspects of contracts for securities within the province,
including all aspects of public protection and professional competences. These matters remain essentially provincial concerns falling
within property and civil rights in the provinces and are not related to trade as a whole.
The act was said to be ultra vires to the Parliament of Canada and was not enacted.
2 . Irwin Toy Ltd. v. Quebec (1989)
Irwin Toy Ltd. v. Quebec is a landmark SCC decision on freedom of expression in section 2(b) of the Canadian Charter of Rights and
Irwin Toy was charged with breaching sections of the Consumer Protection Act of Quebec: “No persons may make use of commercial
advertising directed to persons under 13 years of age”.
Irwin Toy did not contest that it had advertised to children under the age of 13 but it contested the fine first on the basis that sections
248249 are unconstitutional it argued that broadcasting is a residual power falling under the federal gov’t, making it ultra vires to
Quebec. SCC concluded that the pith and substance of the law was to protect children from detrimental advertising, and thus the
powers fall under section 92(13) civil rights and 92(16) all matters of local/private nature in the province. Irwin Toy’s first argument
The company then argued that based on the Constitution Act of 1982 (Canadian Charter of Rights and Freedoms), the law infringed on
its freedom of expression under section 2(b). The gov’t argued that the Charter wasn’t meant to protect rights of a Corporation. SCC
ruled that the intent of the law was to not only protect individuals but corporations too, who are supposed to benefit from freedom of
expression. The 2nd argument passed and the burden of proof shifted.
The gov’t then argued that section 2(b) is not meant to protect this particular type of advertisement. SCC also dismissed this argument
→ the Charter protects commercial expression.
IRWIN TOY PROVED THAT THE LAW INFRINGED ON ITS PROTECTED FREEDOM BUT THE CASE IS NOT OVER.
Section 1 of the Charter gives a chance to the government to prove that the
infringement is justified in a free and democratic society. pith and substance: a legal doctrine in
The SCC applied the Oakes Test: Canadian constitutional interpretation used to
1) Is there a “pressing and substantial objective” (purpose) to the law? determine under which head of power a
∙ Objective = protect children who may be vulnerable to ads – met by given piece of legislation falls. The doctrine
federal government is primarily used when a law is challenged on
2) Proportionality the basis that one level of government (be it
a. Is there a rational connection between the law and the objective? provincial or federal) has encroached upon
∙ Link between protection of minors from ads + the exclusive jurisdiction of another level of
objective = met government.
b. Minimal impairment The analysis must answer two questions: 1.
∙ Is there an infringement to a fundamental (protected) what is the pith and substance or essential
right or freedom? I.E. is it possible to arrive to the character of the law 2. does it relate to an
pressing objective without (or lesser) impairment. enumerated head of power in section 91 or
∙ Irwin Toy says there may be other ways to protect 92 of the constitution act 1867
minors from ads – says the impairment is too grave
on the freedom of expression of the corporation – vs.
government that says there is no other way to prohibit ads and that its already minimal (S248 has a prohibition constrained to only specific type of
ads – directed at children