Canadian Constitutional Law Flashcards

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?

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.

Section 8 of the Charter protects against unreasonable search and seizure. What is the foundational concept established in Hunter v. Southam Inc. [1984]?

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.

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?

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).

Which Supreme Court of Canada decision established that a corporation can hold s. 7 Charter rights?

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)).

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'?

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.

In Canadian constitutional law, what does the 'pith and substance' doctrine determine?

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.