NCA Canadian Constitutional Law 4 — Questions and Answers
Question 1: Under s. 7 of the Charter, the state cannot deprive a person of life, liberty, or security of the person except in accordance with 'the principles of fundamental justice.' Which of the following is a recognized principle of fundamental justice?
- The principle that all laws must produce the best social outcomes
- The principle against arbitrariness—laws must not be arbitrary, overbroad, or grossly disproportionate (Correct answer)
- The principle that the Crown must always disclose its case before trial
- The principle that courts must follow precedent (stare decisis)
Correct answer: The principle against arbitrariness—laws must not be arbitrary, overbroad, or grossly disproportionate
The SCC in Canada (AG) v. Bedford [2013] confirmed that arbitrariness, overbreadth, and gross disproportionality are three distinct principles of fundamental justice under s. 7. A law violating any one of them unjustifiably limits s. 7.
Question 2: Section 8 of the Charter protects against unreasonable search and seizure. What is the foundational concept established in Hunter v. Southam Inc. [1984]?
- Any search without a warrant is automatically unreasonable
- A prior authorization by a neutral arbiter with reasonable grounds is the constitutional norm (Correct answer)
- The right against search only applies in criminal proceedings
- Evidence obtained in an unreasonable search must always be excluded
Correct answer: A prior authorization by a neutral arbiter with reasonable grounds is the constitutional norm
Hunter v. Southam [1984] held that s. 8 protects a reasonable expectation of privacy and that, to be reasonable, a search should generally be authorized by a warrant issued by a neutral arbiter on reasonable and probable grounds.
Question 3: The right to counsel under s. 10(b) of the Charter is triggered upon detention. According to the SCC in R v. Bartle [1994], which obligations does s. 10(b) impose on police?
- Police must immediately provide a lawyer without any request from the detainee
- Police must inform the detainee of the right to counsel, give opportunity to exercise it, and refrain from eliciting evidence until the detainee has had a chance to consult (Correct answer)
- Police must stop all questioning indefinitely until a lawyer is physically present
- Police need only inform the detainee of legal aid availability
Correct answer: Police must inform the detainee of the right to counsel, give opportunity to exercise it, and refrain from eliciting evidence until the detainee has had a chance to consult
Section 10(b) imposes three duties: (1) inform the detainee of the right to retain and instruct counsel without delay; (2) provide a reasonable opportunity to exercise the right; (3) refrain from eliciting evidence until the detainee has had that opportunity (unless they waive the right).
Question 4: Which Supreme Court of Canada decision established that a corporation can hold s. 7 Charter rights?
- Irwin Toy Ltd. v. Quebec [1989]
- R v. Big M Drug Mart Ltd. [1985]
- Corporations do not hold s. 7 rights under Canadian law (Correct answer)
- Reference re Same-Sex Marriage [2004]
Correct answer: Corporations do not hold s. 7 rights under Canadian law
The SCC confirmed in Irwin Toy Ltd. v. Quebec [1989] that corporations cannot hold s. 7 rights because those rights protect biological life, liberty, and security—interests only natural persons can hold. Corporations may hold other Charter rights (e.g., s. 2(b)).
Question 5: What is the constitutional significance of the preamble to the Constitution Act, 1867, which references 'a Constitution similar in Principle to that of the United Kingdom'?
- It has no legal effect and is merely symbolic
- The SCC has used it to imply unwritten constitutional principles such as judicial independence (Correct answer)
- It incorporates all British statutes into Canadian law
- It limits Parliament's power to pass laws inconsistent with British practice
Correct answer: The SCC has used it to imply unwritten constitutional principles such as judicial independence
In Reference re Remuneration of Judges of the Provincial Court [1997] the SCC held that the preamble imports unwritten constitutional principles—including judicial independence—into Canadian constitutional law, giving them enforceable legal status.
Question 6: In Canadian constitutional law, what does the 'pith and substance' doctrine determine?
- Whether a law is morally justified
- The true subject matter of legislation to assign it to the proper head of power (Correct answer)
- Whether a Charter right has been violated
- The appropriate remedy for an unconstitutional law
Correct answer: The true subject matter of legislation to assign it to the proper head of power
Pith and substance analysis identifies the dominant purpose and effect of a law to classify it under a head of power in ss. 91 or 92. Courts look at the purpose of the legislation and its legal and practical effects.
NCA Canadian Constitutional Law 4
Under s. 7 of the Charter, the state cannot deprive a person of life, liberty, or security of the person except in accordance with 'the principles of fundamental justice.' Which of the following is a recognized principle of fundamental justice?