Division of Powers under theConstitution
Pursuant of the Supreme Court Act, the Governor in Council referred the following
questions to the Supreme Court:
“ Is the annexed Proposal for an Act respecting certain aspects of legal capacity for
marriage for civil
purposes within the exclusive legislative authority of the Parliament of Canada? If not,
particular or particulars, and to what extent?”
Section 2 of the Proposed Act provides:
“Nothing in this Act affects the freedom of officials of religious groups to refuse to
perform marriages that are not in accordance with their religious beliefs.”
The Court’s Decision:
Section 2 of the Proposed Act relates to those who may (or must) perform marriages.
Legislative competence over the performance or solemnization of marriage is
exclusively allocated to the provinces under s. 92(12) of the Constitution Act, 1867.
Section 2 of the proposed legislation is ultra vires Parliament. In pith and substance,
s. 2 relates to those who may (or must) perform marriages and falls within the subject
matter allocated to the provinces under s. 92(12).
i) Which specific powers of the Federal and Provincial Legislatures were at issue
in this case?
ii) Why was the law ruled unconstitutional?
iii)Explain how the court used the pith and substance test in this case.
Robin Chatterjee v. Attorney General of Ontario BUSINESS LAW
The police arrested Chatterjee for breach of probation and, in a search of his car
incidental to the arrest, discovered cash and items that were associated with the illicit
drug trade and also smelled of marijuana but found no drugs. C was never charged
with any offence in relation to the money, items, or with any drug related activity. The
Attorney General of Ontario was granted an order under the Civil Remedies Act, 2001
(“CRA”) preserving the seized money and equipment. He then applied under ss. 3 and
8 of the CRA for forfeiture of the seized money as proceeds of unlawful activity. In
response, C challenged
the CRA’s constitutionality, arguing that the CRA’s forfeiture provisions were ultra
vires the province because they encroach on the federal criminal law power. Both the
applications judge and the Court of Appeal concluded that the CRA is a valid
The Court’s Decision:
The CRA’s forfeiture provisions are constitutional.
The Court’s Reasoning:
• The evident purposes of the CRA are to make crime in general unprofitable, to
capture resources tainted by crime so as to make them unavailable to fund
future crime and to help compensate private individuals and public institutions
for the costs of past crime. The practical (and intended) effect is to take the
profit out of crime and to deter its present and would-be perpetrators. These
are valid provincial objects. Crime creates costs to victims and to the public
that would otherwise fall on the provincial treasury including health, policing
resources, community stability and family welfare. It would be out of step with
modern realities to conclude that a province must shoulder the costs to the
community of criminal behaviour but cannot take legislative steps to suppress
it. [3-4] 
• Where there is a degree of overlap between measures enacted pursuant to the
provincial power and measures taken pursuant to the federal power, it is
necessary to identify the “dominant feature” of an impugned measure. If the
dominant feature of the provincial enactment is in relation to provincial objects,
as it is here, the law will be valid. BUSINESS LAW
• The CRA is an enactment in relation to “property and civil rights”, and as such
its provisions may incidentally “affect” criminal law and procedure without
doing violence to the division of powers.
i) Which specific powers of the Federal and Provincial Legislature were at issue in
ii) What test did the court use to determine whether the law fell within the
iii) If a law enacted by either the Federal or provincial Legislatures affects a
power assigned to the other, is it automatic that the law is ultra vires ?
Operation of section1 of the Canadian Charter of Rights andFreedoms
Andrewsv. Law Society ofBritishColumbia
Andrews, a British subject permanently resident in Canada met all the requirements for
admission to the British Columbia bar except that of Canadian citizenship. His action for
a declaration that that requirement violated s. 15(1) of the Canadian Charter of Rights
and Freedoms was dismissed at trial but allowed on appeal. The constitutional questions
before this Court dealt with: (1) whether the Canadian citizenship requirement for
admission to the BritishColumbia bar infringed or denied the equality rights guaranteed
bys. 15(1) of theCharter; (2) ifso,whether that infringement was justified bys. 1.
A rule which bars an entire class of persons from certain forms of employment, solely
on the grounds of a lack of citizenship status and without consideration of educational
and professional qualifications or the other attributes or merits of individuals in the
group, infringes s. 15 equality rights. Section 42 of the Barristers and Solicitors Act is
such a rule.
• The legislation at issue was not justified under s.1.
• The objective of the legislation was not sufficiently pressing and substantial to
warrant overcoming the rights protected by s. 15. Given that s. 15 is designed to
protect those groups who suffer social, political and legal disadvantage in our
society, the burden resting on government to justify the type of discrimination
against suchgroups is appropriately an onerous one.
• The proportionality test was not met. The requirement of citizenship is not
carefully tailored to achieve the objective that lawyers be familiar with Canadian BUSINESS LAW
institutions and customs and may not even be rationally connected to it. Most
citizens, natural-born or otherwise, are committed to Canadian society but that
commitment is not ensured by citizenship. Conversely, non-citizens may be
deeply committed to our country. Even if lawyers do perform a governmental
function, citizenship does not guarantee that they will honourably and
conscientiously carry out their public duties: that is a function of their being good
lawyers, not of citizenship.
The Supreme Court’s Reasoning:
• …Having found an infringement of s. 15 of the Charter, I turn now to the question
whether the citizenship requirement for entry into the legal profession in British
Columbia constitutes a reasonable limit which can be "demonstrably justified in a
free and democratic society"unders. 1.
• .. [t]he onus of justifying the infringement rests upon those seeking to uphold the
legislation (that is, the government).
• The first hurdle to be crossed in or