Habeas Corpus

Existing since the 13th century, habeas corpus is both a free- standing right and, more recently, a right protected under section 10(c) of the Charter.[1] Habeas Corpus translates to “produce the body”.[2] A habeas corpus application is used by persons who feel they are being wrongfully detained. Upon application, the individual is brought before a judge who will determine whether the detainment is lawful. Provincial courts must hear these applications quickly.

The right is available to all individuals in Canada, including refugees and immigrants.[3] Habeas corpus is most often used when a person is being detained against their will and is suffering a deprivation of liberty. Most applications are brought by prisoners detained in correctional institutions and by immigration, child welfare, and mental health detainees.[4] An example of an unlawful detainment is a prisoner being moved from a minimum-security prison to a maximum-security prison without being told why he or she is being moved. If habeas corpus is granted, the individual’s detainment will change such that it is no longer considered illegal. This could include moving a prisoner from a maximum- security back to a minimum-security prison or even releasing the prisoner all together.

The Supreme Court of Canada has described habeas corpus as a “vehicle for reviewing the justification for a person’s imprisonment”.[5] A habeas corpus application will typically be approved in cases where an individual has proved two things:

1. Their liberty was deprived in some way.[6] Three circumstances typically lead to a deprivation of liberty: 1. The initial decision to detain an individual; 2. A change in the conditions of the detention; or 3. The continuation of the detention[7] 2. There are legitimate grounds to question the legality of the detention[8]

If the applicant successfully proves these two things, it is then up to the authority detaining the individual to prove that this limitation of the individual’s freedom is legal.[9]

Habeas corpus is limited only in two ways:

1. It cannot be used by an individual to challenge a finding of guilt or the punishment they received; 2. It cannot be used if there is another process in place that is as good as, or better than, habeas corpus such as a review and appeal process provided by statute.[10]

[1] Canadian Charter of Rights and Freedoms, s 10(c), Part I of the Constitution Act, 1982, being Schedule B to the (UK), 1982, c 11.

[2] Colleen M Flood & Lorne Sossin, Administrative Law in Context, 3rd ed (Toronto: Edmond Montgomery Publications Limited, 2018) at 78.

[3] Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29 [Chhina].

[4] Flood and Sossin, supra note 2 at 78.

[5] Mission Institution v Khela, 2014 SCC 24 at para 30 [Khela].

[6] Ibid.

[7] Chhina, supra note 3 at para 22.

[8] Khela, supra note 5 at para 30. [9] Ibid.

[10] Chhina, supra note 3 at para 2.

Opting Out

The term ’opting out’ in Canadian constitutional discourse refers broadly to any action by which a province, of its own volition, is excluded from a measure that applies to the other provinces. However, it is important to distinguish clearly between two kinds of ‘opting out’. Opting out of a federal, or federal-provincial, program is entirely different from ‘opting out’ of a constitutional amendment. There has been no actual instance of the latter, but it is at least theoretically possible, under certain conditions, since 1982 (see amending formula).

In the former, and more usual, sense the practice of opting out may be traced to the agreement on the financing of universities between the governments of Canada and Quebec in the latter part of 1959. Federal grants to Canadian universities had begun a few years earlier, but the Duplessis government in Quebec had prevented Quebec universities from accepting them. Soon after Duplessis’s death in 1959, an agreement was reached whereby the federal tax on corporations was reduced in Quebec and Quebec’s provincial tax on corporations was increased. Quebec then used the additional revenue to pay grants to its universities equivalent to those which universities in other provinces received from the federal government. Under the federal Pearson government (1963-68), Quebec was offered, and accepted, the opportunity to opt out of several shared-cost programs, including youth allowances and hospital insurance, with corresponding abatements of federal taxation in Quebec. In return, Quebec promised to maintain a similar program from its own resources. This approach lost favour with the federal government when Pierre Trudeau became Prime Minister. However, the , drafted in 1987 after Quebec requested constitutional restrictions on the federal spending power, would have guaranteed the right of any province to opt out, with financial compensation, from any new shared-cost program in a field of provincial jurisdiction, provided it carried on a program compatible with federal objectives.

The term ‘opting out’ is also used, somewhat misleadingly, with reference to section 38(3) of theConstitution Act, 1982. That section, originally proposed by Alberta, provides that a provincial legislature may exclude its province from the operation of any constitutional amendment that would transfer a provincial matter into federal jurisdiction. Financial compensation would be provided only if the amendment pertained to education or culture. As many as three provinces, comprising less than half of Canada’s population, could exclude themselves but the amendment would still apply to the other provinces. This complicated procedure has never actually been used, and possibly never will be.

Sources:

P.W. Hogg, Meech Lake Constitutional Accord Annotated (Toronto: Carswell, 1988). R. Romanow, J. Whyte & H. Leeson,Canada … notwithstanding: the making of the Constitution 1976-1982 (Toronto: Carswell/Methuen, 1984). D.V. Smiley, Constitutional Adaptation and since 1945 (Ottawa: Queen’s Printer, 1970). Official Languages

‘Official language(s)’ refer to the language(s) in which states normally conduct their business and communicate with their citizens. Many of the world’s constitutions privilege particular languages as ‘official’ by so declaring them. Some go on to designate their official languages as the languages of use in the legislatures, courts, civil administration, schools and other public emanations of the state. Commonly, states affirmatively promote their official languages with state power. This, however, is not invariably so.

Language is a badge of identity for national communities. Nationalist movements often occasion a conflict between language communities. Some countries recognize two or more languages as official, but promote only one as its national language. This is the case with Israel, where Hebrew and Arabic are official languages of the state, but where Hebrew alone is strongly promoted as the Israeli national language.

Canada’s Constitution declares English and French as the official languages of Canada and provides that these languages have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and . Canada’s constitution also creates rights to use either language in Parliamentary and court proceedings and to communicate with or be served by institutions of the federal government in either language. Under certain conditions French or English language minorities in the provinces have a constitutionally guaranteed right to receive minority language instruction in educational structures appertaining to their communities.

Language rights provided for in Canada’s Constitution are deepened and detailed in a federal Official Languages Act. The Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) guarantees as well that all federal employees have the right to use either English or French in the workplace. Importantly, the Act commits the federal government to supporting, enhancing and assisting Canada’s minority official language communities. An ‘Official Languages Commissioner’ supported by a permanent staff monitors implementation of these rights.

Oakes Test

The Oakes test was created by the Supreme Court of Canada in the 1986 case of R v Oakes.[1] The test interprets section 1 of the Charter of Rights and Freedoms, which states that rights are guaranteed, “subject only to such reasonable limits . . . as can be demonstrably justified in a free and democratic society.”[2] This means that the government must establish that the benefits of a law outweigh its negative impact—that is, its violation of a Charter right.

R v Oakes

In R v Oakes, the police caught the accused, Oakes, with hashish oil and cash. They charged him with possession for the purpose of trafficking under theNarcotic Control Act (NCA).[3] He claimed that the drugs were his own and that he did not intend to sell them. At that time, under section 8 of the NCA, anyone found with illegal drugs was presumed guilty of trafficking. Usually, the Crown must prove guilt beyond a reasonable doubt, but under the NCA it was up to the accused to prove that he was not guilty. This is called a “reverse onus”.

Oakes challenged the law, arguing that it violated the presumption of innocence guaranteed by section 11(d) of the Charter. The Supreme Court found that this right had been violated. They then had to consider whether the government could justify this violation using section 1.

The Test

The Court in R v Oakes created a two-step balancing test to determine whether a government can justify a law which limits a Charter right.

1. The government must establish that the law under review has a goal that is both “pressing and substantial.” The law must be both important and necessary. Governments are usually successful in this first step.

2. The court then conducts a proportionality analysis using three sub-tests. a. The government must first establish that the provision of the law which limits aCharter right is rationally connected to the law’s purpose. If it is arbitrary or serves no logical purpose, then it will not meet this standard. b. Secondly, a provision mustminimally impair the violated Charter right. A provision that limits a Charter right will be constitutional only if it impairs the Charter right as little as possible or is “within a range of reasonably supportable alternatives.”[4] c. Finally, the court examines the law’sproportionate effects. Even if the government can satisfy the above steps, the effect of the provision on Charter rights may be too high a price to pay for the advantage the provision would provide in advancing the law’s purpose.

In Oakes itself, the court considered that combatting the public health and safety risk created by narcotics was a pressing and substantial goal. However, the Court ruled that a “reverse onus,” where an accused is presumed guilty of drug trafficking unless he proves otherwise, was not rationally connected to this goal.[5] The Court found that it would be irrational to presume an intention to traffic narcotics when an accused only possessed a small amount of drugs. Having failed this first step, the court did not consider step 2 (b) or (c), and the law was “struck down,” that is, declared unconstitutional.

Legacy

The Oakes test is employed every time the government tries to defend a restriction on the Charter rights of Canadians. Some legislation has passed the test. For example inR v Keegstra,[6] the Supreme Court held that a law against hate speech was a reasonable and justifiable limit on section 2(b) of the Charter, freedom of expression. The test provides a mechanism for the courts to balance, on the one hand, the government’s ability to achieve its goals and, on the other, the protection of individual rights. This balancing test is now considered a cornerstone of Canadian constitutional law.

[1] R v Oakes, [1986] 1 SCR 103, 1986 CanLii 46 (1986) [Oakes].

[2] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 1.

[3] Narcotic Control Act, RSC 1970, c N-1.

[4] Oakes, supra note 1 at 46.

[5] Oakes, supra note 1 at 142.

[6] R v Keegstra, [1990] 3 SCR 697, 1990 CanLii 24 (SCC). Notwithstanding Clause

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

What is the Notwithstanding Clause?

Section 33 of the Charter of Rights and Freedoms is commonly referred to as the “notwithstanding clause”.[1] Its function is to prevent a person from bringing an action in court claiming that a law violates fundamental freedoms, legal rights, or equality rights and is therefore invalid. Provincial or federal governments can use section 33 when they want to pre-emptively protect that law. The clause acknowledges that there can be situations where a government will want to pass a law, or maintain an existing law, that disregards Charter-protected rights or freedoms.

Why do we have a notwithstanding clause?

When the Charter was drafted, federal and provincial lawmakers were divided on including section 33 in the Charter.[2] Its supporters believed the clause would protect democracy by giving elected law-makers control over important issues and preventing the unelected judges from having too much power. Those opposed, including then Prime Minister Pierre Elliott Trudeau, thought that the clause could jeopardize the Charter’s purpose of protecting individual rights against the government.[3]

Supporters included provinces such as Alberta, Saskatchewan, and Manitoba. They were worried the Charter would limit their power to make necessary laws. Having section 33 in the Charter preserved provincial sovereignty.[4] Including the notwithstanding clause secured these provinces’ support of the Charter.

When can it be used?

The notwithstanding clause is rarely used. Governments typically invoke it when they have powerful public policy reasons to justify it.[5] The clause can only be used for laws that affect fundamental freedoms in section 2 of the Charter, such as freedom of expression or freedom of religion, legal rights in sections 7-14 such as the right to life, liberty and security, and equality rights in section 15.[6]

For example, in 2000, Alberta tried to apply the clause to override same-sex marriage in the province. The Supreme Court had ruled that same-sex marriage was constitutional but the Alberta government did not want to follow this decision. Therefore, they added the notwithstanding clause to the Alberta Marriage Act to make it clear that marriage should only legal between a man and a woman. However, this use of the notwithstanding clause would likely have been found to be invalid because marriage is not in provincial jurisdiction.[7] Only the federal government can decide what marriages are legal.

How can it be used?

When a government decides to use the notwithstanding clause it must clearly state that its law will operate despite its potential to violate sections of the Charter.

The use of the notwithstanding power can only last for five years, after which it can be renewed for additional five-year periods.[8] A practical effect of the five-year limit is that it generally coincides with the length of electoral terms. As a result, the public has an opportunity in an election to challenge their government’s decision to use the notwithstanding clause if they so wish.[9]

When has it been used?

As of May 2017, the notwithstanding clause has been used 17 times by the governments of Quebec, Alberta, Saskatchewan, and the Yukon.[10] Here are a few examples:

Quebec

Quebec did not sign the Constitution Act 1982 and subsequently passed legislation that added a standard notwithstanding clause to every law in force at the time.[11] The clause was added to every new law passed until December 2, 1985, when a new government stopped the practice.[12] In 1988, Quebec used the clause in response to a Supreme Court of Canada decision that the province’s law allowing French-only on commercial signs offended freedom of expression because companies could not express themselves in their language of choice. Quebec passed a new version of the same law with the notwithstanding clause attached. This new law allowed the French-only signs to continue. The law was not renewed when the five-year limit ran out.

Saskatchewan

Saskatchewan added the clause to protect strike-ending legislation in 1986. The government used the clause because they thought the law forcing strikers back to work would violate freedom of association. However, the clause was removed when the Supreme Court said that the law would not affect Charter rights.[13] In 2017, Saskatchewan Premier Brad Wall announced his decision to use the notwithstanding clause to protect school choices for students and parents, regardless of their faith.[14] The Premier’s announcement was in response to a Saskatchewan court decision that would possibly jeopardize the funding for non-Catholic students who attend Catholic schools. Using the notwithstanding clause will allow the province to continue funding students regardless of their faith and school choice. The Ministries of Education and Justice are tasked with drafting the new law.[15] The court’s decision is currently on appeal.

Alberta

In 1998, Alberta tried to use the clause to limit compensation to victims of a forced sterilization program. Forced sterilization had infringed the victims’ right to life, liberty and security of the person. However, the proposed bill was withdrawn due to public protest against it.[16] As mentioned earlier, Alberta also tried in 2000 to apply the notwithstanding clause to override same-sex marriage in the province.

For more information:

Peter Lougheed, “Why a Notwithstanding Clause?” (Inaugural Merv Leitch QC Memorial Lecture delivered at the University of Calgary, 20 November 1991), (1998) Points of View no 6. Allan E. Blakeney, “The Notwithstanding Clause, the Charter and Canada’s Patriated Constitution: What I Thought We Were Doing” (2010) 19:1, 2 & 3 Const Forum Const 1.

[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 33 [Charter]. [2] Peter W Hogg, Constitutional , vol 2, 5th ed (Scarborough: Thomson, 2007) (loose-leaf 2010 supplement) at 39.2. [Hogg].

[3] Peter Lougheed, “Why a Notwithstanding Clause?” (Inaugural Merv Leitch QC Memorial Lecture delivered at the University of Calgary, 20 November 1991) at 4.

[4] Ibid at 2; Barbara Billingsley, “Section 33: The Charter’s Sleeping Giant” (2002) 21 Windsor YB Access Just 311 at 333; Hogg, supra note 2 at 39.2.

[5] Hogg, supra note 2 at 39.8.

[6] Charter, supra note 1, s 33(1).

[7] Hogg, supra note 2 at 39.2.

[8] Charter, supra note 1, ss 33(3)– (5).

[9] Hogg, supra note 2 at 39.5.

[10] Billingsley, supra note 4 at 339.

[11] Hogg, supra note 2 at 39.1.

[12] Ibid.

[13] RWDSU v Saskatchewan, [1987] 1 SCR 460.

[14] Stefani Langenegger, “Sask. to use notwithstanding clause to override Catholic school ruling”, CBC News (01 May, 2017), online:

[15] Good Spirit School Division No 204 v Christ the Teacher Roman Catholic Separate School Division No 212 and The Government of Saskatchewan, 2017 SKQB 109.

[16] Billingsley, supra note 4 at 341. Natural Resources

By contrast to the manufacturing economies of Ontario and Quebec, the economies of the western provinces have traditionally emphasized primary production of oil, gas, wood, minerals and grains. These natural resources are sold largely in interprovincial and international markets. In the 1970s, the Supreme Court of Canada held that Parliament has paramount jurisdiction to legislate in relation to the export of natural resources. The decisions invalidated provincial taxes upon exported natural resources as “indirect taxation” (see taxation power), made provincial regulatory jurisdiction insecure and seemed to hollow out provincial ownership rights.

There were other provincial concerns about natural resources. The decisions of the 1970s could be extended to the generation, production and export of electrical energy. Moreover, electrical generation is done by an interconnected grid that can and does in many cases extend beyond the limits of a province. This additional fact can bring the whole undertaking within federal jurisdiction, as can the fact that electrical energy is regularly supplied to the United States. All of this heightened provincial complaints about the constitutional division of powers over natural resources at the end of the 1970s.

Section 92A of the Constitution Act, 1982 was designed and proclaimed against this background. Section 92A authorizes the provinces to legislate for the export of resources to other provinces, subject to Parliament’s paramount legislative power in the area. It also permits indirect taxation in respect of resources, subject to a requirement not to discriminate against other provinces by use of this new taxing authority. The power would appear to respond to provincial concerns by reversing the decisions of the 1970s and by expanding provincial taxing and regulatory jurisdiction over natural resources.

Mobility Rights

At their most basic, mobility rights allow individuals to move from place to place, largely free from government intervention. In a country as large and diverse as Canada, the ability to live and work in a location of your choosing, and enter and leave the country freely, are of great importance.

The significance of these rights is reflected in their inclusion as section 6 of theCharter of Rights and Freedoms.[1]

The Mobility Rights section of the Charter is subdivided into: (1) the mobility right of citizens and (2) the right to move and to gain a livelihood for citizens and permanent residents.

(1) The mobility right

This right allows all citizens of Canada to enter, remain in, and leave Canada as they please. To facilitate this right, the courts have decided that citizens also have a right to a government-issued passport.[2] The mobility right does not extend to permanent residents and those who are non- citizens.[3] Non-citizens can be refused entry into the country without the need for justification, and their admittance into Canada can be subject to strict conditions (e.g. visa conditions).[4] They also do not have a right to remain in the country once their pre-determined stay in the country has expired, unless they apply for an extension, or for permanent resident status.[5]

(2) The rights to move and to gain a livelihood

These rights allow Canadian citizens and permanent residents to move freely about and reside in, any province they choose. They also grant the right to earn a livelihood in any province. It should be noted that this however, does not create a constitutional right to work.[6] You can apply for a job in any province, regardless of which province you are coming from, but that does not give you a constitutional right to a job.[7]

Section 6(2)’s Built-in Limitations

The rights to move and to gain a livelihood are subject to specific limitations which are outlined within Section 6 of the Charter. The rights are subject to provincial laws that do not discriminate primarily on the basis of one’s province of residence (either past or present), and are meant to apply generally to everyone in that province. This limit would save laws that require both in-province and out-of-province individuals to re-license or re-certify, in a regulated profession such as law or medicine, before being allowed to practice.[8] This is because these provincial licensing requirements apply to everyone equally. Similarly, requiring a person to obtain a new driver’s license or health care insurance when s/he moves to a different province is considered justifiable.

In addition, both provincial and federal laws that are passed to ensure individuals qualify for social services/assistance (based on reasonable residency periods) are allowed to limit this right.[9] For example, British Columbia revokes social assistance if the recipient is absent from the province for more than 30 consecutive days per year.[10]

Finally, certain laws, programs or activities are allowed to discriminate based on province of residence, so long as their objective is improving the conditions for socially or economically disadvantaged individuals.[11] In this way, an ‘affirmative action’ law or activity that ensures preferential hiring of certain individuals residing in a province could be constitutional, despite the fact that it, on its face, infringes on the mobility rights of others.[12]

Justifiable Infringement of Section 6

Mobility rights, like all other Charter rights, are subject to reasonable limits as prescribed by law. This means that the government may justify an infringement of section 6 rights. Say for example, that you were on Canada’s equivalent of the no-fly list, the Passenger Protect Program.[13] If your inclusion on that list had a valuable or important purpose the Government would likely be able to argue that its infringement of your mobility right – to leave the country – was justified as a reasonable limit under section 1 of the Charter. In a case involving the denial of a passport to a Canadian citizen – and convicted terrorist – the Federal Court of Appeal held that the government’s decision was justifiable, as the denial was a reasonable method of addressing national security concerns.[14]

Not Withstanding

Interestingly, mobility rights are not subject to the “notwithtanding” clause that allows Parliament or a provincial legislature to override certainCharter rights and freedoms.[15] As such, provinces can not ‘opt out’ and enact a law that allows for a specific limitation of mobility rights. So, while a province may wish to pass legislation protecting the livelihood of their own residents by restricting the ability of residents of other provinces to gain employment (for example), unless that legislation falls within the built- in limitations of Section 6, or is a justifiable infringement, it is unconstitutional for them to do so.

[1] Canadian Charter of Rights and Freedoms,Part 1 of the Constitution Act, 1982, s 6, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 Charter[ ].

[2] Kamel v Canada (Attorney General), 2008 FC 338, [2009] 1 FCR59, aff’d 2009 FCA 21, [2009]4FCR 449.

[3] Peter Hogg, Constitutional Law of Canada, 5th ed (Toronto: Carswell, 2007) (loose-leaf revision 1) vol 2 at 46-1 [Hogg]; see also Government of Canada, “New Immigrants – Life in Canada: Carrying identification and traveling outside of Canada” (13 November 2013), online: .

[4] Hogg, supra note 3 at 46-1, 46-2.

[5] Canada, “Extend your stay in Canada as a visitor” (24 June 2016), online: .

[6] Mollie Dunsmuir & Kristen Douglas, “Mobility Rights and the Charter of Rights and Freedoms” (19 August 1998), online: .

[7] See Law Society of Upper Canada v Skapinke,[1984] 1 SCR 357 at 382, DLR (4th) 161.

[8] Hogg, supra note 3 at 46-7. It should however be noted that virtually all provinces in Canada have acted to increase labour mobility: see Agreement on Internal Trade (entered into force 1 July 1995), online: .

[9] Charter, supra note 1 at s 6(3)(b).

[10] British Columbia, “Residency in BC Eligibility” (20 May 2010), online: .

[11] Ibid at s 6(4). This discrimination is allowed to happen when the disadvantaged individuals reside in a province with an employment rate below the national average, see Hogg, supra note 3 at 46-8.

[12] Hogg, supra note 3 at 46-8.

[13] Public Safety Canada, “Recourse for Listed Persons” (20 June 2016), online: .

[14] Kamel v Canada (Attorney General), [2009] 4 FCR 449, 2009 FCA 21 (CanLII).

[15] Charter, supra note 1 at s 33; Hogg, supra note 3 at 39-5, 46-2.

Meech Lake Accord

Quebec’s refusal to accept the package in 1981 caused it to feel somewhat alienated from the Canadian ’constitutional family.’ This led to renewed constitutional discussions, beginning around 1985, in which the government of Quebec made a series of proposals that, if accepted by all the provinces and the federal government, would have led to Quebec’s return to the ‘constitutional family.’

Since, in the interim, Quebec was as legally bound as all of the other provinces by the provisions of theCanada Act 1982 and its Schedule B, the Constitution Act, 1982, the Quebec proposals also assumed a great symbolic significance.

The Quebec proposals could be divided into two components. The first dealt with the distinctiveness of Quebec in the Canadian federation, and the second with a potpourri of other matters. These other matters arguably tended to enhance the role of the provinces in their relationship with the federal government. Not surprisingly, then, when Quebec proposed this package, including the latter portion, which enhanced the role of the provinces, all of the provinces initially agreed to the package under a principle of ‘juridical equality’. This package became known as the Meech Lake Constitutional Accord of 1987.

The ‘Meech Lake Accord’ recognized the province of Quebec as constituting a distinct society within Canada. At the same time, it recognized the anglophone minority in Quebec as a fundamental characteristic of Canada, as well as the francophone minority elsewhere in Canada.

The provinces were, for the first time, given a formal role in nominating persons to sit on certain federal institutions (namely, the Senate and the Supreme Court of Canada).

For some time, social programs falling within provincial legislative jurisdiction (e.g. health care) had largely been financed by the federal government since the federal government held greater taxation power, and hence possessed greater spending ability than the provinces (see federal spending power).

Provincial concerns with this related to federal attachments of conditions to this financing. Under the Accord, a province could opt out (see opting out) of one of these programs provided it established its own, and provided its own program had objectives compatible with the national objectives of the program. In such a case, the federal government would continue to finance the new provincial program with reasonable compensation.

Under the Constitution Act, 1867, the provinces and the federal government were given joint or parallel jurisdiction over immigration, leading to a series of agreements on the settlement of new immigrants in Canada. The Accord constitutionalized those agreements.

The Accord also constitutionalized the federal-provincial consultative process by requiring that at least one First Ministers’ meeting be held annually and by requiring that the issues of Senate reform and the fisheries be discussed at those meetings.

Finally, the Accord slightly changed the existing formula for constitutional amendment (see amending formula). Before the Accord, two formulae for amendment existed in Canada. The general formula required the consent of the Senate and the House of Commons and of the legislatures of two-thirds of the provinces, provided those provinces comprised fifty percent of the population of Canada. For some specialized listed matters, the formula required the consent of Parliament and the legislatures of all of the provinces. A third section listing other specialized matters existed as well, but these matters required only the general amending formula. The Accord took this latter list of specialized matters, added a number of other issues, and moved them to the first list of specialized matters. As a result, all listed specialized matters (such as changes to the Senate and the creation of new provinces) came to require the unanimous consent of Parliament and the legislatures of the provinces.

To become law, the Accord had to be ratified by Parliament and the legislatures of all the provinces in accordance with section 41 of the Constitution Act, 1867. Quebec’s legislative assembly was the first to pass the required resolution of approval on 23 June 1987; the Accord had to receive unanimous ratification on or before 23 June 1990. In early June of 1990, all First Ministers finally agreed to ratify the Accord subject to guarantees of further constitutional discussion following the Accord on such issues as an elected Senate, the amending formula and equality and Aboriginal issues.

Nevertheless, on the final ratification date, the Accord unravelled. Although all parties in Manitoba had finally agreed to the Accord, it required public hearings unless there was the unanimous consent of the legislature to dispense with such hearings. However, one member of the Manitoba legislature, Elijah Harper, withheld his consent and ultimately the Accord did not come to a vote in that province. On the same day, wishing to allow Manitoba time, the federal minister responsible for federal-provincial relations suggested extension by three months of the ratification date – to the third anniversary of Saskatchewan’s ratification – necessitating re-ratification in Quebec. This dissatisfied the premier of Newfoundland who then did not bring the Accord to a vote in his legislature on that day – ultimately delivering yet another blow to the ‘Meech Lake Accord’ and ensuring its disintegration.

Aboriginal

Through its mention in section 35 of the Constitution Act, 1982, the term “Aboriginal” has surged to heavy usage both in the legal sphere and in general Canadian English.[1]

Aboriginal is an inclusive term, covering various peoples with ties to the original inhabitants of Canada. Section 35(2) of the Constitution Act, 1982 states that “’Aboriginal Peoples of Canada’ includes the Indian, Inuit, and Métis peoples of Canada.” Because the list is open-ended, it is possible that the legal definition of “Aboriginal Peoples of Canada” may be interpreted to cover other peoples not specifically mentioned, as long as such interpretations are in keeping with the characteristics of the listed groups.

Aboriginal is also a flexible term, since it can be used to refer to Aboriginals as individuals, or as groups: i) An Aboriginal person: A person whose ethnic ancestry traces back to the original inhabitants of Canada may refer to herself as “an Aboriginal person”, regardless of whether she qualifies particularly as a Métis, an Inuk, a First Nations person, or an Indian. ii) An Aboriginal people: A group of people participating in a shared society whose origins derive from a connection with a group of the original inhabitants of Canada may be “an Aboriginal people”. A First Nation or a Métis nation is therefore an Aboriginal people. iii) Aboriginals: The word “Aboriginals” does not distinguish between individuals and collectives, and includes both.

Legally, Aboriginal is often associated with Aboriginal rights, as recognised and affirmed in section 35(1). The constitutional use of the word Aboriginal, in addition to its advantageous flexibility as a catch-all term, has led Canadian political and legal institutions to gradually abandon the word “Indian” in favour of the word “Aboriginal”.[2]

[1] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 35.

[2] In 2011, for example, the Federal Government changed the name of the Department of Indian Affairs and Northern Development to the “Department of Aboriginal Affairs and Northern Development”.

Living Tree Doctrine

The “living tree” doctrine refers to a method of constitutional interpretation that allows for Canada’s Constitution to change and evolve over time while still acknowledging its original intentions.[1] The doctrine achieves a balance between two seemingly contradictory goals: predictability and flexibility. To be effective, the Constitution must consist of a predictable set of rules. That way, Canadians know how their activities are governed, and Canada and the provinces can be governed in a consistent manner. On the other hand, flexible interpretation accommodates the realities of changing modern life. If the Constitution could not be interpreted this way, it would be frozen in time and become more obsolete than useful.[2]

Two Canadian cases illustrate the balance between the constitutional predictability and flexibility that embody the living tree principle. Edwards v Canada,[3] a cornerstone in constitutional interpretation, introduced the living tree metaphor and the courts’ need to interpret the Constitution more broadly. Otherwise known as the “Persons Case,” Edwards was a 1929 decision by Canada’s highest court at the time, the Judicial Committee of the Privy Council (JCPC) in Britain. After analyzing the Constitution’s use of the term “persons,” which had always referred to men, the JCPC decided that both men and women were now “persons” and therefore eligible to sit in the Canadian senate.[4] According to Justice Sankey, while constitutional stability and integrity is of the utmost importance, the Constitution “also planted in Canada a living tree capable of growth and expansion within its natural limits.”[5] Women may not have been able to vote or hold office in 1867, but times had changed and so had constitutional interpretation. The decision helped women gain a measure of equality to men in the political arena.

More recently, cases likeReference Re Same-Sex Marriage updated the living tree concept. This 2004 case questioned the constitutional validity of same-sex marriage. Building on Justice Sankey’s “living tree” metaphor, Chief Justice McLachlin introduced another metaphor, stating that the “ ‘frozen concepts’ reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation, that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”[6] By allowing the term “marriage” to adapt or grow with contemporary times, its meaning within legislation became modernized and subsequently included unions of same-sex couples.[7]

Allowing the Constitution to evolve is not a simple task. Doing so takes time and considerable thought, and the courts make changes only after much deliberation. Sections of the Constitution that are questioned or challenged must be examined within the context of contemporary society to ensure that they adapt to change but still maintain the “framers’ intent,” or what the Constitution’s authors were trying to achieve.[8] Therefore, contemporary interpreters must focus on what the originators intended it to accomplish rather than what the text actually states before allowing the Constitution to evolve or remain unchanged.[9]

[1]Peter W Hogg, Constitutional Law of Canada, vol 2, 5th ed (Scarborough: Thomson, 2007) at 36.8(a) [2]Ibid; Reference Re Same Sex Marriage, 2004 SCC 79 (CanLII) [Same-Sex].

[3]Edwards v Canada (Attorney General) [1930] AC 124 at 124, 1929 UKPC 86 [Edwards cited to AC].

[4]Ibid.

[5]Ibid.

[6]Same-Sex, supra note 2 at para 22.

[7]Ibid.

[8]William Beal, Cardinal Rules of Constitutional Interpretation (Buffalo, US: William S Hein & Co, Inc, 2000) at 257.

[9]Ibid.