LAW 529 Chapter Notes - Chapter 2: Section 33 Of The Canadian Charter Of Rights And Freedoms, Regulatory Offence, Fundamental Justice
DepartmentLaw and Business
Course CodeLAW 529
ProfessorPnina Alon- Shenker
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WHAT IS CONSTITUTIONAL LAW?
•The Constitution lays the basic foundations of the law
•Constitutional law is different from criminal law, corporate law, securities law, contract law and tort law
How Is Constitutional Law Developed?
•Canada was developed as a colony of the UK. Therefore, a lot of it was developed by the UK
•Constitution 1867 divides up what level of government is responsible for what and who can do what
•What is the constitutional law that describes the division of powers? Constitution Act of 1867 Why? Because
there's other constitution act (i.e. 1982). Different ones deal with different things
How Constitutional Law Can Be Amended?
•One thing that distinguishes constitutional law from other types of law is its very difficult to amend constitutional
law because in order to amend the constitution, it requires a combination of the federal government plus seven of the
provinces comprising a significant portion of the population
•Amendments are therefore very rare
To Whom Does Constitutional Law Apply?
•Applies to governments – federal, provincial, and any entities created by the provincial governments, territories
•Subject of constitutional law is governments– this is what the government can or cannot do
•APPLIES TO GOVERNEMNT ACTION ONLY
What Is The Relation Between Constitutional Laws And Other Types Of Law?
•We live in a confederation– there is a split in responsibilities from one level of government to another level of
•Other smaller countries only have one level of government
•We have a confederation because we have a very big country
Constitutional Law In Unitary Vs. Federal States
•We do NOT have a unitary type of law
•Why would unitary be easier?
oAdvantages: more simple, having one type of law
oDisadvantages: having more levels of government may be a source of check and balance – more corruption
perhaps with one level of government?
KEY ISSUES IN CONSTITUTIONAL LAW?
What happens when a government passes laws that exceed its authority to address a particular business activity?
•It may be declared as ultra vires and struck down.
What happens when there are conflicts and overlaps between federal and provincial laws addressing particular
•The federal law always prevails Doctrine of Federal Paramountcy
What is the constitutional status of federal, provincial and municipal business laws and activities?
•Powers can be delegated amongst levels.
How does the constitution address business activities that were never contemplated in 1867?
•Constitution act of 1867: beyond limit of province, it can extend federally and also the Residual Clause allow anything
that is not specified in constitution can be handled by federal government
(i.e. can be argued cellphones not in constitution but is it provincial or federal ?
-1) Provincial because they are used interprovincial therefore sec 92(10)(a)
-2) Constitution act of 1867: beyond limit of province, it can extend federally and also the Residual Clause allow anything that
is not specified in constitution can be handled by federal government)
What remedies are available when a violation of the Constitution occurs?
•Legislation is struck down.
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FEDERAL OF DIVISION OF POWERS
•Federal powers: Constitution Act, 1867: Allocation of responsibilities between the federal and provincial government
•Section 91 –referred to as “heads of power”: the powers the federal government has to make a decision
•Peace, Order & Good Government Clause (POGG): federal government has the authority to address issues regarding
•Federal government has residual powers
oS. 91(2) – Trade and Commerce
oS. 91(15) – (23) – Market Framework Laws: banks, weights and measures, bills or exchange, interest, legal
tender, bankruptcy, patents, copyrights
oS. 91(27) – Criminal Law
PROVINCIAL OF DIVISION OF POWERS
•Provincial powers: Constitution Act, 1867: Municipality can at maximum, only have provincial power
•Section 92 –referred to as “heads of power”: sub delegation of provincial powers to municipal government
o92 (8): Municipal Institutions in the Province
o92 (9): shop licenses
o92 (10): local works or undertakings
o92 (11): incorporation of provincial companies –If you are only doing a business inside Ontario only
o92 (13): property and civil rights –critically important constitutional authority because they address the
business consumer relationship. It encompasses things like contract law and tort law
o92 (14): administration of justice
o92 (15): punishment for enforcement of law –Provinces can jail people if they are violating the law
o92 (16): generally all matters of a local nature
•Municipalities are entities established by provincial government
(i.e. opening up restaurant : Toronto gives license )
•Municipalities can only have a MAX power that province has NOT Federal
•Province can regulate rail ways (i.e. inter provincial) but goes beyond Ontario = provincial like CN
(i.e. cellphones : not in constitution but is provincial or federal )
HOW IS THE CONSTITUTIONAL DIVISION OF POWERS RELEVANT TO BUSINESS?
•If a new law is needed, businesses need to know which level of government has authority to address the problem
•If a government stipulates that a business is obliged to do something, and the business for some reason disagrees
with this stipulation, they may be able to successfully challenge the law as not properly within the authority of that level
CHARTER OF RIGHTS AND FREEDOMS (CONSTITUTION ACT 1982)
•The Canadian Charter of Rights and Freedoms guarantees the right and freedoms set put in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society
•Applies to the federal government and the provinces (people versus government)
•Court can declare a law or part of a law unconstitutional
•Remedy is up to the court
Fundamental Rights (Page 2-3)
•Difference: Canadian Charter of Rights and Freedoms and other “rights” instruments
•Does Charter protect businesses, or just individual persons?
oThe Charter protects business interests and can be used by businesses to challenge laws not consistent with
oS. 2 – Charter freedoms benefiting and constraining businesses: “Everyone has the following freedoms of
expression, religion, peaceful assembly and association
•Notwithstanding clause is an override of Charter… Lasts only 5 years and expires
Legal Rights (Page 2-3)
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•S. 7 – Charter rights
oEveryone has the right to “life, liberty or security of the person”, can’t be deprived thereof, except in
accordance with principles of fundamental justice.
•S. 11 (d) – Any person charged with an offence has the right… to be presumed innocent until proven guilty according
oRegulatory offences with prison
oRegulatory offences without prison
Equality Rights (Page 2-4)
•S. 15 – “Every individual is equal before the law…”
Enforcement (Page 2-4)
•S. 24 (1) anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply
to a court …to obtain such remedy as the court considers appropriate…
Application of Charter (Page 2-5)
oS. 32 (1) This Charter applies to the Parliament and government of Canada in respect of all matters within the
authority of Parliament...and to the legislatures and governments of each province in respect of all matters
within the authority of the legislature of each province.”
•Charter establishes rights/freedoms of “persons” or individuals vis-à-vis government
oGovernment as legislator (any level)
oGovernment as decision-maker
oGovernment as actor
•S. 33 – Parliament or provincial legislature notwithstanding clause( valid for 3 years)
UNDERSTANDING THE COURT DECISIONS
Difference between a “head note” and the decision of judges
•Head note: legal summary of court decision, not an actual court decision (i.e. Regina V. Videoflicks)
•Decision of Judges: actual decision of the court and usually appears at the end of a case
•If SCC makes a decision, its usually the last say/decision… if it is a lower court, decision can still be appealed
Regina v. Videoflicks (1984)
•What is the fact situation that has lead to the court case?
oViolation retail business holiday act (provincial Ontario law)
•What laws are being considered in the court decision?
oRetail Business Holidays Act (provincial law of Ontario): Because a number of companies were the subjects of an
enforcement action by the government of the Ontario
oThese companies were said to be violating the Act
oThese companies challenged the constitutionality of the government of Ontario to invoke the legislation against them
oWhat is significant about the date? In 1982, the Chart of Rights and Freedom came into force. At this point, the law could
be challenged on two different bases– the Charter and the division of powers issues
•What was the conclusion of the court?
oThe act constitutes a reasonable limitation within s.1 of the Charter
oAccordingly s.2 of the Act is of no force or effect as concerns N Ltd. And its appeal must be allowed, the conviction
quashed and an acquittal entered
•What were the reasons for the court reaching the decision it did?
oNo conflict therefore businesses failed to prove the conflict
oLater the Lords day act is held unconstitutional due to its religious nature
•What type of constitutional law is being considered in the case?
oCharter of rights –Freedom of expression –Retail Business Holiday Act requiring all retail businesses to be closed on
•Why is the court decision relevant to Canadian businesses?
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