This 25 page exam template is all you need to pass the Constitutional Law NCA exam. This template provides a step-by-step approach to all 20 topics of provided for in the NCA syllabus. It contains all authorities and references to the required statute. It also tells you exactly what it is you need ...
SAMPLE PAGE 9: Peace, order, and Good Government: Answer Structure: 15: Limitation of Rights 11: Aboriginal and Treaty Rights
4: Judicial Review (a) The ‘Gap’ Branch The Oakes Test: Is there Aboriginal Title:
Residuary power invested in federal government (s. 91); (1) Sufficiently important objective must be demonstrated Aboriginal group had exclusive
Starting point: every conceivable subject matter has to be assigned to a [pressing and substantial.] pre-sovereignty use and occupation to land
SAY: There are 2 steps to determine Constitutional validity of piece level of government. (a) ‘Important’:
of Legislation: 1) Define ‘matter’ by characterising Pith and (i) Residual power: Does the matter fall outside of s. 91 and (i) consistent with values in a free and democratic society; (1) Is there an existing aboriginal title right?
Substance; 2) Assign subject matter to head of power: Morgantaler. s. 92 (Radio Reference); (ii) pressing and substantial concerns (more than trivial); [If yes, protected by s. 35.]
[if there is something ‘new’, check pith and substance to (iii) realisation of collective goals of fundamental importance. Requirements (Delgammukw):
(1) Characterise: pith and substance: determine if it falls under an existing head of power.] (b) Can be expressed at various levels of generality (a) Sufficiency of occupation;
(a) Matter: Leading feature or true character of law (dominant (ii) Partially assigned: Matters not completely assigned to a High level of generality is best. (1) Occupancy prior to sovereignty
purpose or aim). Approach must be flexible and not technical and head of power. (c) Objective should be stated in relation to infringement of [Note: prior to sovereignty, not contact.]
formalistic: Morgantaler. (1) example; treaties can only be entered into by Canada, Charter (RJR McDonald; McLaughlin J) (2) Look at culture (Tsilhqot’in);
SAY: The ‘matter’ is determined by looking at the ‘pith and as obligations under the British Empire ! ‘Gap’ ! nothing Note: cost will not be a sufficient objective to limit a Charter right; [Content specific inquiry.]
substance’: the legal effect imposed within the 4-corners of the about entering into treaties as Canada. unless exceptional circumstance (Newfoundland v NAPE) (3) Look for i.e.:
legislation (Morgantaler). The legal effect is determined by looking at Parliament has permanent jurisdiction over matters outside s. Examples of ‘sufficiently important objective’: (i) construction of dwellings;
how the legislation affects the rights and liabilities of those subject to 91 and s. 92. (a) observance of Christian Sabbath not sufficiently compelling (ii) cultivation and enclosure of fields
its terms and it is usually a good indication of the purpose of the (b) ‘National Concern’ Branch objective (R v Big M Drug Mart); but (iii) regale use of tracts for fishing
legislation (AG of AB v AG of Canada). [Alters the federal-provincial balance of power.] (b) providing common day of rest for all works in the prov is (R Relaxed rules for hearsay to accommodate oral history.
SAY: Here, the legal effect of [LEGISLATION] is to [FACTS]. (i) Must be a subject matter that becomes a concern of the v Edwards Books and Art); (b) Continuity;
i.e. prohibition of not wearing life jacket w/ penalty for non- dominion as a whole. (c) cannot be ultra vires enacting body on federal distribution (1) ‘substantial maintenance of occupation’.
compliance. Requirements (Crown Zellerbach): of powers grounds; (c) Exclusive possession:
(b) Determine purpose and effect: Considerations in (1) Singleness; (d) cost savings cannot justify Charter infringement (Singh v (1) Capacity to exclude; need to show intention to retain
determining purpose and effect: Morgantaler: (2) Distinctiveness; Minister of Immigration); exclusive possession.
(i) Legal Effect: how Legislation as a whole affects rights and (3) Indivisibility. (e) Shifting objectives not permitted. (2) Has the right been extinguished by Parliament?
liabilities of those subject to its terms, determined from the (ii) Provincial Inability Test (2) Proportionality Analysis [Onus on State.]
terms of the Legislation itself. (1) Subject matter requires a need for co-operative [proportionality analysis using three sub-tests.] (a) Clear and plain intention by Parliament: Sparrow:
(ii) Socio-economic purposes of the statute: Looking provincial action(Crown Zellerbach); (a) Rational connection (b) Right must have been extinguished:
beyond 4 corners of Legislation. [Co-operation is not desirable, but essential.] [government must first establish provision of law which (1) pre-1982
(iii) Practical effect: actual or predicted results of legislations Consider what would happen if one province chose not limits Charter right is rationally connected to law’s purpose. [Post 1982, protected by s. 35.]
operation/administration/short-term. to legislate. If it is arbitrary or serves no logical purpose, then it will not (2) Extinguished through Federal legislation.
(iv) Extrinsic material: i.e. Hansard, legislative history, related Parliament has permanent jurisdiction over matters outside s. meet this standard.] (3) Has the State interfered with the Right?
legislation, evidence of the mischief legislation is directed at, 91 and s. 92. (i) Must be casually carefully designed to achieve the objective (a) Consider fiduciary obligation;
background and existing circumstances, what led up to Act (c) Emergency Branch in question (Oakes); [legal and factual context.]
(ex. media coverage): Schneider v R. [Alters the federal-provincial balance of power.] (ii) Causation need not be established with direct evidence ! (b) Was the group consulted?
(i) Must be an emergency; sufficient to base determination on ‘logic’ or ‘reason’ when (4) Can the infringement be justified
SAY: The ‘purpose and effect’ is determined by looking at how the (1) Definition of emergency: genuine emergency effecting evidence is inconclusive (RJR McDonald). Test (Sparrow):
Legislature purports to address the problem (Morgantaler). The legal all Canadians and temporary ‘Rational Connection’ (a) Must further compelling /substantial legislative objective, and
effect, the practical effect, socio-economic purposes, and extrinsic (ii) Must be temporary. (i) essence of rational connection is causal relationship [compelling/substantial: important to community i.e.
materials must be considered, (ii) Must be a rational basis of the emergency (Anti-Inflation between objective of law and measures enacted by law; economic development, protection.]
SAY: Here, [Conclude on Pith and Substance]. Reference). (ii) court has not alway insisted on direct proof b/c of difficulties (b) Cannot unduly restrict right disproportionately (accomodate);
Parliament has temporary jurisdiction over all subject matters in establishing this element; (1) Give economic priority
(2) Classify: Assign to Head of Power under s. 91 or s. 92: that deal with an emergency. (iii) i.e. RJR MacDonald: Common sense connection between (2) Involve aboriginal group(s): Duty to consult.
(a) s. 91: regular head of power or POGG advertising and connection sufficient to satisfy rational Note: Applicable to both Federal & Provincial Legislation (Tsilhqot’in).
(b) s. 92: regular head of power. connection requirement.
(b) Minimal Impairment Aboriginal Title Expanded:
SAY: The next step in determining validity is to put [ACT] under a [Least drastic means.] Introduction: SAY: AT rights stem from the right to exclusive
valid head of power. Interpretation of head of power provisions [, provision must minimally impair violated Charter right. occupation of land and permit aboriginal owners to use the land for a
requires a ‘large and liberal’ or progressive living tree interpretation Provision that limits Charter right will be constitutional only if variety of purposes. AT is a burden on the Crown’s title and is not
to ensure continued relevance of the constitution (Re Same Sex it impairs Charter right as little as possible or is 'within a derived from a Crown grant (Calder). Title rights are protected by s.
Marriage). When interpreting the Constitution, we must take into range of reasonably supportable alternatives’.] 35 and a fiduciary duty owed by the Crown to the aboriginals
account the principles of democracy, federalism, rule of law and the (i) Law should ‘impair’ Charter right as little as possible; (Sparrow):
protection of minorities (Quebec Secession). If there is a legislative (ii) Deference to legislative authority is needed ! as long as In order to analyse s. 35 AT claims, Court must determine:
gap, the exhaustive principle ensures that there cannot be a the legislative choice is within the margin of appreciation; (1) the existence of aboriginal title;
legislative void and the head of power that most aptly subsumes the (iii) Is there another way to effect the Charter right ! does the (2) the title has not been extinguished;
‘gap’ will subsume the power to legislate (Re Same Sex Marriage). law capture too much? (3) the title was infringed; and
(c) Proportionate effect: Alberta Hutterian Brethros: (4) whether or not infringement was justified.
SAY: Here, the potential heads of power that may arise are [LIST]. [Between effects and objective; ‘Deleterious effects’] (Sparrow)
[Choose one of Criminal, Trade & Commerce, [Finally, court examines law’s proportionate effects. Even if
POGG; do analysis]. government can satisfy above steps, effect of provision on (1) Is there an existing land title right?
Charter rights may be too high a price to pay for advantage SAY: AT proven by showing that an aboriginal group occupied
provision would provide in advancing law’s purpose.] land in question prior to sovereignty. This occupation is
sufficient to show that land is of central significance to culture of
claimants (Delgamuukw). Occupation can be ascertained by
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