Syllabus

Canadian Constitutional Law

(Revised for January 2022)

Candidates are advised that the syllabus may be updated from

time-to-time without prior notice.

Candidates are responsible for obtaining the

most current syllabus available.

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 Canadian Constitutional Law

SCOPE OF THE SUBJECT

Constitutional law is distinguished by what it does (it creates the principal organs of the state
and defines and limits their powers) and by its status (it is the supreme law with which all other
laws and government actions must comply). The goal of the readings assigned in this syllabus
is to provide candidates with an introduction to the various components of Canadian
constitutional law, and to the principles necessary for understanding and applying the provisions
of the Canadian constitution in legal practice.

The assigned readings begin, in Part I, with an introduction to the nature and sources of the
Canadian constitution, followed by an overview of the procedures for amending the constitution.

In Part II, the readings explore the distribution of legislative powers in sections 91-95 of the
Constitution Act, 1867. The readings here begin with an introduction to the federal nature of the
Canadian state, the resulting distribution of legislative powers to federal and provincial
legislative bodies, the role of the judiciary in upholding this distribution of powers, and general
principles of constitutional interpretation applied by the courts in discharging this role. The
readings then turn to a detailed study of some of the most important legislative powers,
including the provincial power in relation to “property and civil rights in the province” [s.92(13)],
as well as the federal powers in relation to “peace, order, and good government” [opening
language of s.91], “trade and commerce” [s.91(2)], and “criminal law” [s.91(27)]. Finally, a
number of doctrines addressing the potential for overlap of federal and provincial exercises of
legislative power are examined.

Part III examines distinct constitutional protections of the rights of Indigenous peoples. The
readings here focus on the range of “aboriginal and treaty rights” entrenched in s.35 of the
Constitution Act, 1982, including Aboriginal rights, Aboriginal title, treaty rights, and the Crown’s
duty to consult.

Part IV of the syllabus then turns to the rights and freedoms guaranteed by the Canadian
Charter of Rights and Freedoms (Charter), beginning with an examination of principles of
Charter interpretation, the scope of application of the Charter [s.32], and the possibility of
legislative override of certain rights and freedoms [s.33]. The readings then focus on four of the
most important rights-protecting provisions of the Charter – those relating to freedom of
conscience and religion [s.2(a)], freedom of expression [s.2(b)], life, liberty and security of the
person [s.7], and equality [s.15]. Part IV concludes with an examination of justifiable limits on
rights [s.1] and remedies for Charter violations [ss.24, 52].

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EXAMINATION

The examination for this subject will be a three-hour open book examination. The examination
may consist only of problem questions, or it may consist of a mix of problem questions, short
answer questions and short essay questions.

A typical problem question will describe an actual or fictional statute (or other government
action), and ask candidates to assess whether it is consistent with the provisions of the
Constitution Act, 1867 and/or the Constitution Act, 1982, and, if not, what the consequences are
likely to be. Problem questions test a candidate’s ability to identify constitutional issues,
accurately state the applicable legal rules, apply those rules to hypothetical situations, cite
relevant case law, and draw conclusions supported by analysis. In other words, problem
questions require the exercise of independent judgment grounded in the application of
constitutional rules to specific fact situations. As a result, when responding to problem
questions, candidates are strongly discouraged from copying out prepared study notes, most
particularly “boilerplate” or “canned” answer scripts. Such materials are readily recognizable,
often contain erroneous or outdated descriptions of the law, and rarely demonstrate anything
other than a candidate’s ability to transcribe text – a skill not being tested on an open-book
examination. While succinct statements of the governing rules, preferably in the candidate’s
own words or those of the leading cases, can be useful, candidates should focus their answers
on applying those rules to the specific facts of the question in order to reach legal conclusions
that are supported by legal analysis. For candidates who lack experience answering problem
examination questions, familiarization with them through practice is essential. Candidates
should practice by testing themselves, using the sample examination and perhaps by reviewing
other samples of recent Canadian constitutional law examinations. Many Canadian law school
libraries have copies of recent examinations on file. In addition, many Canadian law schools
make examinations available online and some Canadian constitutional law professors have
course websites with sample examinations and model answers.

Short answer questions, which may be in a true/false or multiple-choice format, test candidates’
ability to succinctly and correctly evaluate statements about the content of Canadian
constitutional law, as in the following example:

Question: Indicate whether the following statement is true or false, and cite the
case listed on the syllabus that best supports your answer: Pursuant to the
“general regulation of trade” branch of its power to enact laws in relation to trade
and commerce in s.91(2) of the Constitution Act, 1867, Parliament may enact a
comprehensive regulatory scheme aimed at promoting fair competition in
intraprovincial and interprovincial trade.

Answer: True. Relevant case listed on the syllabus: General Motors v City
National Leasing.

Short essay questions test whether candidates have critically engaged with the material listed in
the syllabus, have started to form their own opinions about the strengths and weaknesses of
Canadian constitutional law, and are able to articulate and defend those opinions (e.g.: “Would

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you favour the repeal of s.33 of the Canadian Charter of Rights and Freedoms?”). In answering
essay questions, candidates should avoid lengthy descriptive material and focus rather on
building a legal argument that directly addresses the specific issue identified in the question and
that is supported by (duly acknowledged) authority covered in the syllabus.

REQUIRED READINGS

The required readings under each topic consist of the applicable provisions of the text of the
constitution, leading cases from the Supreme Court of Canada (and a few from other courts),
and relevant chapters (or parts of chapters) from the leading English-language textbook on
Canadian constitutional law: Peter Hogg, Constitutional Law of Canada, Student Edition
(Toronto: Carswell, published in a revised version annually) (this textbook is referred to below
as "Hogg").

The case law you are required to read is accessible online at http://scc.lexum.org (for Supreme
Court of Canada judgments), or at http://www.bailii.org/uk/cases/UKPC/ (for Privy Council
rulings). Hyperlinks are provided to all of the cases listed in the required readings below. You
may also access the full text of all court rulings listed below in case reporters in law libraries –
for example, Supreme Court of Canada rulings are reported in the Canadian Supreme Court
Reports (SCR).

Candidates should acquire a copy of the most recently published student edition of the Hogg
textbook. The student edition contains all of the chapters included in the required readings
below. The Hogg textbook is also available in law libraries in a loose-leaf format updated
annually. Candidates are advised to use the most recent student edition of the Hogg textbook
(or the loose-leaf version) when completing the readings below, because it will contain the most
up-to-date analysis of recent developments.

Candidates should make regular reference to the texts of Canadian constitutional documents
relevant to the topics covered in this syllabus, especially the provisions of the Constitution Act,
1867 and the Constitution Act, 1982 that are included in the list of required readings below. The
key provisions are excerpted in Appendices I and III of the Hogg textbook. The full text of the
Constitution Act, 1867 and Constitution Act, 1982 can also be found on the Department of
Justice website at http://laws-lois.justice.gc.ca/eng/Const/index.html and on the website of the
Canadian Legal Information Institute at http://www.canlii.org. Hyperlinks are provided to all of
the provisions of the Constitution Act, 1867 and the Constitution Act, 1982 that are included in
the list of required readings below.

Candidates should aim to develop an understanding of the principles of Canadian constitutional

law that starts with the text of the Constitution Acts and is then deepened and extended by the
principles developed in the leading cases listed in this syllabus. In light of the sparse language
of the constitutional text, the bulk of Canadian constitutional law is the product of judicial
interpretation. The Hogg textbook should serve to provide historical context and clear
summaries of the law. However, candidates are warned against focusing their study exclusively
on the readings in the Hogg textbook. While the Hogg textbook is a useful resource, it is

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important to study the constitutional provisions and leading judicial decisions themselves. The
assigned cases set out authoritative statements of the content of Canadian constitutional law.
The law cannot be derived from a study of the text of the Constitution Acts and the Hogg
textbook alone. Candidates should also be alert to instances where the views expressed in the
Hogg textbook are at odds with judicial opinions or are incomplete because the textbook has not
yet been updated to reflect the latest judicial rulings listed on the syllabus.

The examination will test knowledge derived from all three sources – from the constitutional
provisions themselves, from the case law, and from the Hogg textbook. An adequate
understanding of and capacity to work with Canadian constitutional law requires a knowledge
base that is a combination of the constitutional text, the case law and scholarly analysis.

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TOPICS TO BE COVERED AND REQUIRED READINGS

The outline that follows gives the full list of readings required to prepare for the examination in
this subject. All of the required readings are examinable. As described above, the reading list is
divided into four parts: basic concepts, distribution of legislative powers, the rights of Indigenous
peoples, and Charter rights and freedoms.

The references to the chapters in the Hogg textbook below use the chapter numbers from the
latest student edition.

PART 1: BASIC CONCEPTS

1. Sources and Nature of the Constitution

Hogg, chapter 1, “Sources”
Reference re Secession of Quebec, [1998] 2 SCR 217

2. Amending Procedures
Constitution Act, 1982, Part V, ss 38-49
Hogg, chapter 4, “Amendment”, and chapter 5.7, “Secession”

PART 2: DISTRIBUTION OF LEGISLATIVE POWERS

3. Federalism
Constitution Act, 1867, ss 91-95
Hogg, chapter 5, “Federalism”

4. Judicial Review and Principles of Interpretation

Constitution Act, 1982, s 52
Hogg, chapter 15, “Judicial Review on Federal Grounds”
R v Morgentaler, [1993] 3 SCR 463
Canadian Western Bank v Alberta, 2007 SCC 22, [2007] 2 SCR 3

5. Property and Civil Rights

Constitution Act, 1867, s 92(13)
Hogg, chapter 21, “Property and Civil Rights”
Citizens Insurance Company of Canada v Parsons, (1881) 7 AC 96 (PC)
Chatterjee v Ontario (Attorney General), 2009 SCC 19, [2009] 1 SCR 624
Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837

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6. Trade and Commerce
Constitution Act, 1867, s 91(2)
Hogg, chapter 20, “Trade and Commerce”
General Motors of Canada Ltd. v City National Leasing, [1989] 1 SCR 641
Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837

7. Peace, Order, and Good Government

Constitution Act, 1867, s 91 (opening words)
Hogg, chapter 17, “Peace, Order, and Good Government”
Reference re Anti-Inflation Act, [1976] 2 SCR 373
References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11

8. Criminal Law
Constitution Act, 1867, s 91(27), s 92(15)
Hogg, chapter 18, “Criminal Law”
Reference re Validity of Section 5 (a) Dairy Industry Act, [1949] SCR 1
Reference re Firearms Act (Can.), [2000] 1 SCR 783
Reference re Genetic Non-Discrimination Act, 2020 SCC 17

9. Ancillary Powers
General Motors of Canada Ltd. v City National Leasing, [1989] 1 SCR 641
Quebec (Attorney General) v Lacombe, 2010 SCC 38, [2010] 2 SCR 453

10. Paramountcy
Hogg, chapter 16, “Paramountcy”
Rothmans, Benson & Hedges Inc. v Saskatchewan, 2005 SCC 13, [2005] 1 SCR 188

11. Interjurisdictional Immunity

Hogg, chapter 15.8, “Interjurisdictional Immunity”
Canadian Western Bank v Alberta, 2007 SCC 22, [2007] 2 SCR 3
Quebec (Attorney General) v Canadian Owners and Pilots Association, 2010 SCC 39,
[2010] 2 SCR 536

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PART 3: ABORIGINAL RIGHTS AND THE CONSTITUTION

12. Introduction
Constitution Act, 1982, s 25, s 35
Hogg, chapter 28, “Aboriginal Peoples”

13. Aboriginal Rights

R v Sparrow, [1990] 1 SCR 1075
R v Van der Peet, [1996] 2 SCR 507, per Lamer CJ, paragraphs 1-94
R v Powley, 2003 SCC 43, [2003] 2 SCR 207

14. Aboriginal Title

Tsilhqot’in Nation v British Columbia, 2014 SCC 44, [2014] 2 SCR 256

15. Treaty Rights

R v Marshall, [1999] 3 SCR 456

16. Duty to Consult

Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511

PART 4: THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

17. Interpreting the Canadian Charter of Rights and Freedoms

Hogg, chapter 36, “Charter of Rights”

18. Application of the Canadian Charter of Rights and Freedoms

Constitution Act, 1982, s 32
Hogg, chapter 37, “Application of Charter”
Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, paragraphs 19-52
Greater Vancouver Transportation Authority v Canadian Federation of Students, 2009 SCR
31, [2009] 2 SCR 295, paragraphs 13-24

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19. Override of Rights
Constitution Act, 1982, s 33
Hogg, chapter 39, “Override of Rights”
Ford v Quebec (Attorney General), [1988] 2 SCR 712, Part V of the Court’s opinion,
paragraphs 23-36

20. Freedom of Conscience and Religion

Constitution Act, 1982, s 2(a)
Hogg, chapter 42, “Religion”
Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551, per Iacobucci J,
paragraphs 1-104
Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698, paragraphs 47-60
Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3

21. Freedom of Expression

Constitution Act, 1982, s 2(b)
Hogg, chapter 43, “Expression”
Irwin Toy Ltd. v Quebec (Attorney General), [1989] 1 SCR 927 Parts I, VI, and VII of the
majority opinion
Montréal (City) v 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 SCR 141
Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11, [2013] 1 SCR 467

22. Life, Liberty and Security of the Person

Constitution Act, 1982, s 7
Hogg, chapter 47, “Fundamental Justice”
Canada v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134
Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101
Carter v Canada, 2015 SCC 5, [2015] 1 SCR 331

23. Equality Rights

Constitution Act, 1982, s 15
Hogg, chapter 55, “Equality”
Andrews v Law Society of British Columbia, [1989] 1 SCR 143
R v Kapp, 2008 SCC 41, [2008] 2 SCR 483
Fraser v Canada, 2020 SCC 28

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24. Limitation of Rights
Constitution Act, 1982, s 1
Hogg, chapter 38, “Limitation of Rights”
R v Oakes, [1986] 1 SCR 103, per Dickson CJ, Part V of his opinion, paragraphs 62-79
Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567

25. Remedies
Constitution Act, 1982, s 24, s 52
Hogg, chapter 40, “Enforcement of Rights”
Vriend v Alberta, [1998] 1 SCR 493, per Iacobucci J, paragraphs 129-179
Vancouver (City) v Ward, 2010 SCC 27, [2010] 2 SCR 28
Ontario (Attorney General) v G, 2020 SCC 38

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