NCA Constitutional Law cheat sheet

Constitution Act, 1867 (formerly BNA Act) and Constitution Act, 1982 are the principal written instruments; the 1982 Act contains the Charter (ss. 1-34), Aboriginal rights (s. 35), and amendment formulas (ss. 38-49).

Section 52(1) of the Constitution Act, 1982 declares the Constitution the supreme law of Canada; any law inconsistent with it is of no force or effect to the extent of the inconsistency.

Section 52(2) defines the Constitution as including the Acts referred to in the Schedule (including the 1867 and 1982 Acts) plus any amendments; the list is not exhaustive of unwritten principles.

Unwritten constitutional principles recognized in the Reference re Secession of Quebec (1998) include federalism, democracy, constitutionalism and the rule of law, and respect for minorities; they are binding and can inform interpretation.

The preamble to the Constitution Act, 1867 invokes a constitution 'similar in principle to that of the United Kingdom', grounding parliamentary sovereignty and constitutional conventions.

Constitutional conventions are unwritten political rules enforced politically, not by courts; they are distinct from legal rules and cannot be enforced as law (Reference re Resolution to Amend the Constitution, 1981).

The Constitution Act, 1982 was patriated without provincial consent from the federal government's preferred formula, but the Supreme Court held a substantial degree of provincial consent was a convention, not a legal requirement.

Section 52(3) provides that amendments to the Constitution require the procedures set out in Part V; the general amending formula (s. 38) requires resolutions of the federal Parliament and two-thirds of provinces with at least 50% of the population.

The 'living tree' doctrine (Edwards v Canada (AG), 1930) holds the Constitution is a living tree capable of growth and expansion within its natural limits; the meaning of words is not frozen at 1867.

The two-step Charter analysis: (1) does the law infringe a guaranteed right, judged purposively; (2) if so, can the limit be justified under s. 1 (R v Oakes, 1986).

The Oakes test: the objective must be pressing and substantial; the means must be rationally connected, minimally impairing, and proportionate in effect (proportionality between salience and benefits).

Purposive interpretation asks what interest the right protects; the analysis considers the text, legislative history, and the broader constitutional context.

Marginal note: constitutional text is interpreted broadly and generously, but the interpretation must be consistent with the constitutional structure and the division of powers.

The presumption of constitutionality: legislation is presumed valid, and courts prefer an interpretation that renders a law constitutional if one is reasonably available.

Section 1 limits must be prescribed by law; a discretionary administrative limit may be 'prescribed by law' if sufficiently accessible and intelligible (see Irwin Toy, Committee for the Commonwealth of Canada).

The 'ancillary powers' doctrine permits a law to intrude into another head of power if the intrusion is necessarily incidental to the valid scheme (General Motors v City National Leasing, 1989).

Section 91 of the Constitution Act, 1867 lists federal heads including trade and commerce (s. 91(2)), criminal law (s. 91(27)), and the general 'peace, order and good government' power; s. 92 lists provincial heads including property and civil rights (s. 92(13)) and matters of a merely local or private nature (s. 92(16)).

The 'pith and substance' test identifies the true nature of a law by examining its purpose and effect; the dominant characteristic determines which head of power applies.

The double aspect doctrine allows both levels of government to legislate on the same subject matter if each does so for a different purpose within its own head of power (Hodge v The Queen, 1883).

The 'trenching' doctrine permits incidental intrusion into the other level's jurisdiction if the intrusion is part of a valid scheme and is not the dominant feature.

The national concern branch of POGG applies to matters of inherent national dimension that provinces cannot adequately address (e.g., aeronautics, marine pollution); the 'provincial inability' test is often applied.

The emergency branch of POGG permits temporary federal measures in response to a national emergency (Reference re Anti-Inflation Act, 1976).

The trade and commerce power has an interprovincial/international branch and a general branch; the general branch requires the regulation to be of a nature that is genuinely national in scope (e.g., competition law in General Motors).

Section 92(10) lists local works and undertakings except interprovincial and international transportation and communication, which fall to the federal government.

Paramountcy applies where both levels of government have validly enacted legislation on the same matter; the federal law prevails to the extent of the conflict (Multiple Access v McCutcheon, 1982).

Two types of conflict: (1) impossibility of compliance (a person cannot comply with both laws); (2) frustration of federal purpose (compliance with the provincial law would frustrate a federal purpose).

A 'duplication' of requirements alone does not create a conflict; the provincial law must conflict with the federal law in operation.

Interjurisdictional immunity protects the 'core' of a head of power from intrusion by the other level; it is applied narrowly and only where the intrusion impairs the core (Canadian Western Bank v Alberta, 2007).

The 'core' of a federal power includes matters essential to the federal head; the doctrine is applied with restraint and only where the provincial law would impair the exercise of the federal power.

The doctrine of interjurisdictional immunity is not applied to the Charter; it applies to the division of powers.

The 'double aspect' doctrine may avoid a finding of conflict if the two laws serve different purposes and can coexist.

Federal paramountcy applies only to federal legislation; provincial laws are not paramount over federal laws, even if the provincial law is later in time.

Section 35(1) of the Constitution Act, 1982 recognizes and affirms existing Aboriginal and treaty rights; s. 35(2) defines 'Aboriginal peoples' as Indian, Inuit, and Métis.

Aboriginal rights are not created by s. 35; they are recognized and affirmed; they must be established by evidence of pre-contact practices, customs, or traditions integral to the distinctive culture (Van der Peet, 1996).

The test for an Aboriginal right: (1) identify the precise nature of the right; (2) establish that the practice was integral to the distinctive culture; (3) the practice must have existed prior to contact.

Aboriginal title is a sui generis right to use and occupy land; it is not a fee simple and cannot be alienated except to the Crown (Delgamuukw, 1997).

The Crown's duty to consult and accommodate arises when the Crown has knowledge of a potential Aboriginal or treaty right and contemplates conduct that might adversely affect it (Haida Nation, 2004).

The duty to consult is proportionate to the strength of the claim and the seriousness of the potential adverse effect; it does not give a veto but requires meaningful consultation.

Treaty rights are interpreted in a manner that upholds the honour of the Crown; ambiguities are resolved in favour of the Aboriginal party (R v Marshall, 1999).

Justification of an infringement of an Aboriginal right requires a valid legislative objective, consultation, and compensation where appropriate; the 'sparrow test' (R v Sparrow, 1990) applies.

Section 32(1) applies the Charter to the Parliament and government of Canada and to the legislature and government of each province; it does not apply to purely private conduct.

The 'government action' test asks whether the entity is a government actor or is implementing a government policy or program (e.g., a hospital or university may be subject to the Charter in some functions).

Section 33 (the notwithstanding clause) permits Parliament or a provincial legislature to expressly declare that a law operates notwithstanding ss. 2 or 7-15; the declaration lasts five years and may be re-enacted.

Section 1 permits limits that are 'prescribed by law' and 'demonstrably justified in a free and democratic society'; the Oakes test applies.

Section 24(1) provides remedies for breaches of Charter rights; s. 24(2) provides for exclusion of evidence obtained in a manner that infringed a Charter right, if admission would bring the administration of justice into disrepute.

Section 52(1) provides that inconsistent laws are of no force or effect; s. 24 provides personal remedies; the two are distinct.

The Charter does not apply to the exercise of parliamentary privilege in some contexts, and it does not apply to the Crown's exercise of prerogative powers in some cases (see Operation Dismantle).

Section 28 guarantees the rights and freedoms equally to male and female persons; s. 15(1) prohibits discrimination based on enumerated and analogous grounds.

Section 2 fundamental freedoms: conscience and religion, thought, belief, opinion and expression, peaceful assembly, and association.

Section 7 guarantees life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice; the principles include arbitrariness, overbreadth, and gross disproportionality (Carter, 2015).

Section 8 protects against unreasonable search and seizure; s. 9 protects against arbitrary detention or imprisonment; s. 10 provides rights on arrest or detention, including the right to be informed of the reason and to retain counsel.

Section 11 provides rights of persons charged with an offence, including the presumption of innocence (s. 11(d)), the right to a fair and public hearing (s. 11(d)), and the right not to be tried twice (s. 11(h)).

Section 12 prohibits cruel and unusual treatment or punishment; the test asks whether the punishment is grossly disproportionate to the offence.

Section 15(1) prohibits discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability; analogous grounds may be recognized.

The s. 15 test: (1) does the law create a distinction based on an enumerated or analogous ground; (2) does the distinction create a disadvantage by perpetuating prejudice or stereotyping (Withler, 2011).

Section 2(b) protects expression, including commercial expression; the test asks whether the activity conveys meaning and whether the purpose of the law is to restrict expression.

Standing: a person may challenge a law if they are directly affected by it, or may seek public interest standing if they have a genuine interest and the issue is a serious one (Canada (AG) v Downtown Eastside Sex Workers, 2012).

A constitutional question must be served on the attorneys general of Canada and the province under the Constitutional Questions Act; notice is required for challenges to the validity of legislation.

Remedies under s. 24(1) include declarations, injunctions, damages, and stays of proceedings; the remedy must be just and appropriate in the circumstances.

Section 24(2) exclusion of evidence: the court considers the seriousness of the Charter-infringing conduct, the impact on the accused's Charter-protected interests, and society's interest in adjudication on the merits (R v Grant, 2009).

A declaration of invalidity may be suspended to give the legislature time to respond (e.g., Carter, 2015); the suspension must be justified.

Severance and reading in are remedies that allow a court to remove unconstitutional portions or add words to save a law; reading down interprets a law narrowly to avoid unconstitutionality.

The 'reasonable and probable grounds' standard applies to arrests and searches; a warrantless search is presumptively unreasonable unless authorized by law and reasonable.

The standard of review for constitutional questions is correctness; for Charter issues, the court reviews the law's consistency with the Constitution, not the administrative decision-maker's discretion.