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CONSTITUTIONAL LAW March 2020

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CONSTITUTIONAL LAW March 2020 PLEASE NOTE: As an enhancement to the materials we have created, where possible, external web links to those cases and legislation that were available on the CanLII website. Please note, however, that not all links are reliable. The incorrect links appear to be especially problematic for the statutes, especially if the complete citation for the statute is not present at that exact spot in the materials. If you use the web links, please always double-check to ensure that you are being directed to the correct place. ------ The Nova Scotia Barristers’ Society has prepared these Bar Review Materials for the sole purpose of assisting applicants to prepare for the Nova Scotia Bar Examination. These materials are reviewed and updated annually, and published May 1 each year as study materials for the upcoming July and January exams. These current materials are the study outlines for the July 2020 and January 2021 Bar Examinations and may be relied upon for that sole purpose. The materials are not intended to provide legal advice, and should not be relied upon by articled clerks, transfer applicants, lawyers or members of the public as a current statement of the law. Members of the public who access these materials are urged to seek legal advice and are specifically warned against reliance on them in any legal matter or for pursuit of any legal remedy. The Society will not be liable for any use you made of these materials, beyond their intended purpose. CONSTITUTIONAL LAW March 2020 CONTENTS: GENERAL CONSTITUTIONAL PRINCIPLES ................................................................................................. 1 SEPARATION OF POWERS ............................................................................................................................. 2 SS. 96-101 OF THE CONSTITUTION ACT, 1867 .................................................................................................. 2 Provinces ............................................................................................................................................................ 5 THRESHOLD ISSUES ........................................................................................................................................ 5 JUSTICIABILITY ................................................................................................................................................... 5 STANDING.......................................................................................................................................................... 7 In the course of other proceedings – Standing as of Right ..................................................................... 7 A bare constitutional issue – public interest standing .............................................................................. 7 Residual discretion ..................................................................................................................................... 8 MOOTNESS ........................................................................................................................................................ 8 JURISDICTION – AUTHORITY TO INTERPRET AND APPLY THE CONSTITUTION ....................................................... 9 Superior courts............................................................................................................................................ 9 Federal Court ............................................................................................................................................ 10 Administrative tribunals ............................................................................................................................ 11 PROCEDURAL MATTERS .............................................................................................................................. 12 TIMING ............................................................................................................................................................. 12 NOTICE ............................................................................................................................................................ 13 Federal Court Act, R.S.C. 1985, c. F-7, s. 57 as amended 1990, c. 8, s. 19 ....................................... 13 Constitutional Questions Act, R.S.N.S. 1989, c. 89, s.10 ...................................................................... 13 EVIDENCE ........................................................................................................................................................ 13 DIVISION OF POWERS ................................................................................................................................... 16 PITH AND SUBSTANCE ANALYSIS ...................................................................................................................... 16 COLOURABILITY ............................................................................................................................................... 18 INCIDENTAL EFFECT ......................................................................................................................................... 19 TERRITORIAL EFFECT ....................................................................................................................................... 19 DOUBLE ASPECT .............................................................................................................................................. 20 PARAMOUNTCY ................................................................................................................................................ 20 INTERJURISDICTIONAL IMMUNITY ...................................................................................................................... 21 INTERDELEGATION ........................................................................................................................................... 23 SELECTED FEDERAL POWERS .......................................................................................................................... 24 Trade and Commerce – 91(2) ................................................................................................................. 24 Criminal Law – 91(27) .............................................................................................................................. 25 POGG – preamble .................................................................................................................................... 26 Federal Works and Undertakings – 92(10) and 91(29) ......................................................................... 27 Interprovincial Trade – S. 121 ................................................................................................................. 28 CHARTER PRINCIPLES .................................................................................................................................. 30 INTERPRETATION OF THE CHARTER ................................................................................................................. 30 APPLICATION OF THE CHARTER ....................................................................................................................... 30 Common law ............................................................................................................................................. 32 © Revised and updated by Jodi Lazare (March 2019, March 2020); Jennifer Taylor (April 2016, March 2017, March 2018); Elaine Craig, April 2010, March 2011, March 2012, February 2013, March 2014, January, 2015 (with exception of Aboriginal Law section which was written and revised by others). Revised and updated by Ronalda Murphy, with assistance of Hilary Burn, April 2005 April 2006, April 2008. Revised and updated from materials originally prepared by Peter Rogers, 1997. CONSTITUTIONAL LAW Underinclusion .......................................................................................................................................... 33 Geographic application ............................................................................................................................ 33 S. 33 OVERRIDE .............................................................................................................................................. 34 LIMITATION OF CHARTER RIGHTS ............................................................................................................. 35 REASONABLE LIMIT — GENERAL ...................................................................................................................... 35 PRESCRIBED BY LAW ....................................................................................................................................... 35 DEMONSTRABLY JUSTIFIED .............................................................................................................................. 36 OAKES TEST .................................................................................................................................................... 36 CHARTER RIGHTS .......................................................................................................................................... 41 FUNDAMENTAL FREEDOMS (SECTION 2) .......................................................................................................... 41 2(a) freedom of
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