Canadian Public and Constitutional Law 6847P (Section A)

Fall 2016
MID-TERM EXAMINATION
TIME: 3 HOURS

Instructions:

1. This is an open book examination. You may use any materials you wish during this exam,
including textbooks, course materials and notes.

2. This exam is comprised of three parts and will be graded out of 95 marks as follows:

i. Part A: Short Questions (25 marks total, questions 1 through 6; answer 5 of the 6 questions)

ii. Part B: Fact Pattern One (40 marks total)

iii. Part C: Fact Pattern Two (30 marks total; questions 11-13; answer all questions)

3. State explicitly any assumptions you make in your answers.

4. If quoting from authors or judgments, academic honesty rules apply. Use quotation marks where
quoting directly and identify your source.

5. Time limits will be strictly enforced. Students who continue to write after this exam has ended
may be subject to a penalty. Students finishing early are permitted to leave.

6. This exam is comprised of 5 pages. Please verify that you have all of the pages forming part of
this exam and alert the exam administrator immediately if you are missing any page(s).

7. YOU MUST INCLUDE THIS EXAM IN YOUR ENVELOPE AT THE CONCLUSION OF

THE EXAM.
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Part A: Short Questions

(5 questions worth 5 marks each: TOTAL of 25 marks)

Answer FIVE OF THE FOLLOWING SIX questions. Explain your answer for each
question with specific reference to caselaw and relevant provisions of the Constitution (if
any) in a few paragraphs.

Suggested time for completion: 45 minutes

1. Why is Canada described as a multi-jural nation?

Has more than one system of law.

Common law: Canadas common law comes from England and is the governing system in
Canada in all provinces and territories except Quebec.
Civil law: Canadas civil law derived from a decree by King Louis XIV that New France would
follow the Custom of Paris and operates only in Quebec. After France ceded Quebec to England,
the Royal Proclamation of 1763 declared that Quebec would have English law instead of French
civil law. In 1774, the English government passed a law that restored French law (with the
exception that British criminal law continued in force). Section 92(13) of the Constitution Act,
1867 allows for the continuation of French civil law in Quebec.
Indigenous law: The Supreme Court has endorsed the doctrine of continuity, which means that
when the common law was received in Canada, it recognized the continuity of Aboriginal
customs, laws and traditions (R. v. Mitchell).

2. List the constitutional sources for judicial independence or its core characteristics:

S. 96 98 of Constitution Act, 1867 appointment of judges

S. 99 of Constitution Act, 1867 hold office during good behaviour;
mandatory retirement at 75
S. 100 of constitution act, 1867 - remuneration
Judicial independence is also an unwritten norm, recognized and affirmed by
the preamble to the Constitution Act, 1867 -a Constitution similar in
Principle to that of the United Kingdom
Three core characteristics of judicial independence: (1) security of tenure; (2)
financial security; (3) and administrative independence (Re: Remuneration of
Judges case)

3. TRUE or FALSE: All rights in the Canadian Charter of Rights and Freedoms are absolute and cannot
be infringed by the government

False
Section 1 of the Charter permits limitations answer should reflect language of section 1
Section 33 of the Charter permits the federal and provincial government to override section 2, 7
-15 of the Charter.
Section 33 requirements: 5 year limitation, must be express declaration
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4. TRUE or FALSE: Hospitals are not government for the purpose of section 32 of the Canadian
Charter of Rights and Freedoms

False
Hospital will not be government for every action taken by the hospital e.g. employment
(Stoffman case; Eldridge case)
Can be government based on two tests: nature of entity test and nature of activity test
Nature of Entity involves an inquiry into whether the entity whose actions have given rise to the
alleged Charter breach can, either by its very nature or in virtue of the degree of governmental
control exercised over it, properly be characterized as government. In such cases, all of the
activities of the entity will be subject to the Charter, regardless of whether the activity in which it
is engaged could, if performed by a non-governmental actor, correctly be described as private.
Nature of Activity: Second, an entity may be found to attract Charter scrutiny with respect to a
particular activity that can be ascribed to government. This demands an investigation not into the
nature of the entity whose activity is impugned but rather into the nature of the activity itself. If
the act is truly governmental in nature for example, the implementation of a specific
statutory scheme or a government program the entity performing it will be subject to review
under the Charter only in respect of that act, and not its other, private activities.

5.TRUE or FALSE: No Charter right can be exercised by a corporation.

False
Enjoy freedom of expression and press 2(b)
Does enjoy right to a tried in a reasonable time 11(b)
When prosecuted, a corporation can rely on the rights of individuals as a shield against
prosecution.
No person should be prosecuted under an unconstitutional law.

6. List and describe five unwritten constitutional principles.

Quebec succession (can include 4 from SCC case)

Parliamentary privilege from preamble

Judicial independence from preamble

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Part B: Fact Pattern One

(TOTAL of 40 marks)

Suggested time for completion: 75 minutes

Marlene Calder is a member of the Mtis nation in Ontario. She lives in Kenora,
Ontario. Her particular Mtis community emerged in the Upper Great Lakes region in
the mid-17th century. A Jesuit trading post was established in Kenora in 1750. A
Mtis settlement was established nearby. Descendants from that community
continue to live in the area to the present day.

Despite the presence of the trading post, for the most part the Mtis community
subsisted from the land. Hunting was an important feature of their relationship to
the land.

The community was largely unaffected by European laws and customs until around
1873, when European settlement increased and Treaty 3 was negotiated with some
local Indigenous nations. The Mtis people were not signatories to the Treaty.

Although the community has lost most of its land base, many members of the
community, including Marlene, continue to live in much the same manner as they
had in the past: fishing, hunting, trapping and harvesting other resources for their
livelihood.

Last week, Marlene was stopped by an official with the Ministry of Natural Resources
while she was hunting. She had killed a moose.

Moose hunting in Ontario is subject to strict regulation. People wishing to harvest

moose must enter a lottery to obtain a validation tag authorizing them to hunt in a
particular area. They may hunt one moose per tag. The number of tags issued for a
given season is set in order to conserve and protect the moose population.

The validation tag requirements are not enforced against Status Indians in
recognition of their Aboriginal rights, but no similar provisions have been made for
Mtis peoples.

Marlene did not have a validation tag. Instead, she affixed a handwritten tag to the
ear of the moose. The tag indicated the date, time, and location of the kill, as
required by the hunting regulations. It stated that the animal was to provide meat
for food for the winter. She wrote her Ontario Mtis Association membership number
on it.
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Marlene was charged with contravening the Game and Fish Act. She argues that she
has an Indigenous right to harvest moose in and around the Kenora area.

She hires you to defend her. How would you use s. 35 of the Constitution
Act, 1982 to defend her? Assume that if there is a Mtis right, it has not
been extinguished.

In order to answer use s. 35 in Ms. Calders defense, we will have to establish:

1) Section 35 applies to Ms. Calder; 2) Ms. Calder has an Aboriginal right to
hunt for food; 3) The validation tag requirement infringes that right; 4) The
infringement is not justified.

Issue One: Section 35 applies to Ms. Calder

Section 35(1) of the Constitution Act, 1982 recognizes and affirms existing
Aboriginal and treaty rights. Section 35(2) includes Mtis people within the
group of Aboriginal peoples whose rights are protected.

In order to claim Mtis rights under s. 35, a claimant must demonstrate three
indicia (Powley): 1) self-identification as Mtis; 2) connection to a historic
Mtis community; 3) acceptance as a member by the modern community.

Ms. Calder meets all these criteria. She self-identifies as Mtis, as evidenced
by her membership in the Mtis Nation of Ontario. She is connected to a
historic Mtis community in the Kenora area. Her membership in the Mtis
Nation also demonstrates acceptance by the community. She is entitled to
claim Mtis rights that have not been extinguished.

Issue Two: Ms. Calder has an Aboriginal right to hunt for food

The legal test for establishing an Aboriginal right was set out in a case called
Van der Peet. In order to be recognized as an Aboriginal right, the activity
must be an element of a practice, custom or tradition integral to the
distinctive culture of the Aboriginal group asserting the right.

In order for a practice to be integral, the practice must be of central

significance to the Aboriginal society: it must be a defining characteristic
of the society, one of the things that made the culture of the society
distinctive (Van der Peet).

For most Aboriginal claimants, they must establish that the practice in
question was integral to their distinctive culture at the time of contact (Van
der Peet). In R. v. Powley (2003), the Supreme Court amended the test for
establishing an Aboriginal right for Mtis people. For Mtis claimants of
aboriginal rights, they must establish the practice dates back to the time of
effective European control.
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Here, the time of effective European control should be found to have occurred
around 1873. Prior to that time, there were few settlers and the treaties had
not been signed. The land was largely in the control of Indigenous peoples.
After 1873, Treaty 13 had passed some degree of control over the land to the
Crown.

At the time of effective European control, the Mtis people in the Kenora area
engaged in hunting for food. That was one of their primary modes of
subsistence and was a key aspect of their connection to the land. Therefore,
hunting for food was integral to the Mtis way of life in the Kenora area in the
period around 1873 and that practice has been continuous to the present.
The right claimed by Ms. Calder is an Aboriginal right.

Issue 3: Has the right been infringed?

In order to determine whether the right has been infringed, the Court will
consider three factors (Tsilhqotn):

1) Whether the limitation imposed by the legislation is unreasonable;

2) Whether the legislation imposes undue hardship;

3) Whether the legislation denies the holders of the right their

preferred means of exercising the right.

It is not necessary to establish all three of these factors to establish an

infringement. For example, even if laws of general application are found to be
reasonable or not to cause undue hardship, this does not mean that there is
no infringement.

In this case, Ontario currently does not recognize any Mtis right to hunt for
food, or any special access rights to natural resources for the Mtis
whatsoever. This lack of recognition, and the consequent application of the
challenged provisions to Ms. Calder, denies her the preferred means of
exercising her right. It infringes her Aboriginal right to hunt for food as a
continuation of the protected historical practices of the Kenora Mtis
community.

Issue 4: Is the infringement justified?

Once an Aboriginal right is established, s. 35 of the Constitution Act, 1982

permits incursions on that right only with the consent of the Aboriginal group
or if they are justified by a compelling and substantial public purpose and are
not inconsistent with the Crowns fiduciary duty to the Aboriginal group
(Tsilhqotn; Sparrow).

In this case, there is no evidence that the Mtis community consented to the
infringement.
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To justify an intrusion under s. 35, Ontario must that its actions were backed
by a compelling and substantial objective. Whether something is a
compelling and substantial objective must be considered from the Aboriginal
perspective as well as the perspective of the broader public. To constitute a
compelling and substantial objective, the broader public goal asserted by the
government must further the goal of reconciliation (Tsilhqotn).

Even if there is a compelling and substantial objective, Ontarios actions must

be proportional. The incursion must be necessary to achieve the
governments goal; government must go no further than necessary to
achieve it; the benefits that may be expected to flow from that goal are not
outweighed by adverse effects on the Aboriginal interest.

Here, Ontario would likely justify its actions on the basis of the need for
conservation of the moose population. Conservation has been found to be a
compelling and substantial objective in other cases (Tsilhqotn), and likely
would be found to be one on these facts.

However, the manner in which the Ontario government is seeking to achieve

that goal is not proportional. Even assuming that the moose population is
under threat, the Ontario government could have assigned the Mtis
population a priority allocation to satisfy their subsistence needs (as they
have done with other Indigenous people). The blanket denial of any Mtis
right to hunt for food cannot be justified.

Therefore, Ms. Calder has a Mtis right to hunt for food, which is infringed by
the validation tag requirement. That infringement is not justified. Therefore
the validation tag requirement violates s. 35 and is of no force and effect. Ms.
Calder cannot be convicted.
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PART C: Fact Pattern Two

(TOTAL of 30 marks: Question 11 is worth 10 marks, Question 12 is worth 10 marks and

Question 13 is worth 10 marks)

Suggested time for completion: 60 minutes

Two fisherman, Daniel and Victor Gomez (the Gomez brothers), tragically died when their
ship, the Gomezs Commander, capsized while returning from a fishing expedition off the coast
of Newfoundland and Labrador. Their children (Gomez dependants) applied for and received
compensation under a Newfoundland and Labrador statute, the Workplace Health, Safety and
Compensation Act (WHSCA).

The WHSCA is a workers compensation scheme in Newfoundland and Labrador providing no-
fault compensation to workers and their dependants arising from workplace accidents; it
mandates automatic compensation without the need to establish fault on the part of the employer.
The WHSCA replaces the tort action of negligence with compensation. As such, it is separate
from tort actions like negligence. The WHSCA, like many no-fault workers compensation plans,
allows for dependants to receive compensation without establishing fault in exchange for giving
up a right to commence a tort claim.

In addition to receiving compensation under the Workplace Health, Safety and Compensation
Act, the widows also commenced an action against Marine Services International Limited
(Marine Services) alleging negligence in the design and construction of the Gomezs
Commander. The claim in negligence was brought pursuant to section 6(2) of the federal statute,
the Marine Liability Act (MLA). Section 6(2) of the MLA reads as follows:

6(2) If a person dies by the fault or neglect of another under circumstances that would
have entitled the person, if not deceased, to recover damages, the dependants of the
deceased person may maintain an action in a court of competent jurisdiction for their loss
resulting from the death against the person from whom the deceased person would have
been entitled to recover.

Section 6(2) of the MLA was enacted to expand the range of claimants who could start an action
in maritime negligence law.

In past cases, the Supreme Court of Canada has held that that maritime negligence law is part of
the core of the federal power over Navigation and Shipping under s. 91(10) of the Constitution
Act, 1867. In addition, the Supreme Court has held that Parliaments exclusive legislative
jurisdiction over navigation and shipping is broad and encompasses those aspects of navigation
and shipping that engage national concerns which must be uniformly regulated across the
country, regardless of their territorial scope and includes maritime law which establishes the
framework of legal relationships arising out of navigation and shipping activities and the
infrastructure of navigation and shipping activities.

Marine Services has commenced a motion to strike the widows action on the basis that it was
prohibited by virtue of section 44 of the WHSA. Section 44 of the WHSCA reads as follows:
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44. (1) The right to compensation provided by this Act is instead of rights and rights of
action, statutory or otherwise, to which a worker or his or her dependents are entitled
against an employer or a worker because of an injury in respect of which compensation is
payable or which arises in the course of the workers employment.

(2) A worker, his or her personal representative, his or her dependents or the employer
of the worker has no right of action in respect of an injury against an employer or against
a worker of that employer unless the injury occurred otherwise than in the conduct of the
operations usual in or incidental to the industry carried on by the employer.

(3) An action does not lie for the recovery of compensation under this Act and claims
for compensation shall be determined by the commission.

The Gomez dependants take the position that the motion to strike should fail because (a) section
44 of the WHSCA is ultra vires the Newfoundland and Labrador government; and (b) section 44
of the WHSCA is either inapplicable to the Gomez dependants claim due to inter-jurisdictional
immunity or inoperable to their claim due to federal paramountcy. Outside of the constitutional
arguments, the Gomez dependants concede that section 44 is applicable to their action.

11. Is section 44 of the WHSCA ultra vires the Newfoundland and Labrador government?
(10 marks)

Section 44 of the WHSCA is not ultra vires

Explain pith and substance analysis (Canadian Western Bank v. Albert)
Step One: identify the dominant feature of the legislation having regard to its
purpose and effects
Step Two: Does the characterization of the legislation fall under the head of
power said to support it?
Step One: core of section 44 is workers compensation scheme - providing
no-fault compensation to workers and their dependants arising from
workplace accident. Substitute for tort claims. Incidental effect on maritime
law not sufficient to make it ultra vires.
Step Two: falls within section 92(13) property and civil rights
Section 92(14) includes civil causes of action (torts) (rely on British Columbia
v. Imperial Tobacco Canada, SCC 2005) OR workers compensation schemes,
which concern employment and insurance law, fall within provincial
jurisdiction over property and civil rights as provided by s. 92(13) (rely on
Canadian Pacific Railway; Commission du salaire minimum v. Bell Telephone
Co. of Canada,)

12. Is section 44 of the WHSCA inapplicable because of the doctrine of inter-jurisdictional

immunity. (10 marks)

Explain test: The first step is to determine whether the provincial law
trenches on the protected core of a federal competence. If it does, the
second step is to determine whether the provincial laws effect on the
exercise of the protected federal power is sufficiently serious to invoke the
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doctrine of interjurisdictional immunity (rely on COPA case or Canadian

Western Bank).

Step 1: Past precedent has demonstrated that maritime negligence law is

part of the core of the federal power over Navigation and Shipping under
section 91(10) rely on facts from question OR Ryan Estate. Core part of
the maritime law

Step 2: Explain the second step: the impact must seriously or significantly
trammels the federal power. Interjurisdictional immunity requires a significant
or serious intrusion on the exercise of the federal power. It need not paralyze
it, but it must be serious (Canadian Western Bank or COPA).

Factors for considering step 2:

(a) Not serious: compensation is still available but now only through
compensation scheme, not tort law. Section 44 not impact who can
access compensation only the mechanism for compensation. As such,
section 44 impacts the core power, but not seriously.

(b) Serious: The WHSCA indirectly regulates maritime negligence law by

eliminating recourse to a statutory maritime negligence action.
Eliminating access to the right of the action provided by s. 6(2) of the MLA
seriously impairs this core and triggers the application of the doctrine of
interjurisdictional immunity.

13. Is section 44 of the WHSA inoperable because of section 6(2) of the MLA and the
doctrine of federal paramountcy? For the purposes of this question, assume that the MLA
is validly enacted legislation pursuant to section 91(10) of the Constitution Act, 1867 (10
marks).

Explain test: When the operational effects of provincial legislation are

incompatible with federal legislation, the federal legislation must prevail and
the provincial legislation is rendered inoperative to the extent of the
incompatibility (Canadian Western or COPA).

Two tests: (1) Impossibility of dual compliance: test is high compliance

with one statute requires defiance of another statute. (2) Frustration of
federal purpose: federal paramountcy will apply when there is no operational
conflict between a federal and provincial statute but the provincial statute
frustrates the purpose of the federal statute.

Impossibility of dual compliance:

(a) No impossibility: The WHSCA and the MLA can operate side by side
without conflict. Section 6(2) of the MLA provides that a dependant may
bring a claim under circumstances that would have entitled the person, if
not deceased, to recover damages. Language uggests that there are
situations where a dependant is not allowed to bring an action pursuant to
s. 6(2) of the MLA. Such a situation occurs where a statutory provision
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such as s. 44 of the WHSCA prohibits litigation because compensation

has already been awarded under a workers compensation scheme. OR

(b) Impossibility: An operational conflict exists if s. 44 of the WHSCA bars an

action against any employer that is subject to the scheme. As such,
provincial law extinguishes right provided under section 6(2) to sue
maritime employer.

Frustration of federal purpose:

(a) Purpose frustrated: Section 44 frustrates the federal purpose of regulating

marine liability claims by eliminating recourse to the MLA. An employer
would not be subject to federal marine liability in certain instances
because of the protection granted to it under provincial law. OR
(b) Purpose not frustrated: s. 6(2) of the MLA was enacted to expand the
range of claimants who could start an action in maritime negligence law.
The WHSCA, which establishes a no-fault regime to compensate for
workplace-related injury, does not frustrate that purpose. It provides for a
different regime for compensation that is distinct and separate from tort.
The language in s. 6(2) of the MLA is permissive; a dependant may bring
an action.