Canadian Constitution Research Articles

«Дело о личностях» 1928 г.: место «Знаменитой пятерки» в становлении современного облика канадской конституции

The research aims to determine influence of the 1928 “Persons Case” (“Edwards v. Attorney General for Canada”) and activity of the “Famous Five” that initiated it on formation of the modern-day Constitution of Canada. The paper is novel in that it is the first in the Russian historiography to study the impact that activity of the “Famous Five” and the “Persons Case”, initiated by them, had on change in interpretation of constitutional norms in Canada and adoption of principles of their evolutionary and broad interpretation. The research proves that the “Persons Case”, initiated by the feminist group the “Famous Five”, played a key role in history of how evolutionary and broad interpretation of the Canadian Constitution came to be.

AN EXAMINATION OF SETTLER COLONIALISM IN CANADA’S LEGAL INSTITUTIONS: 1492 LAND BACK LANE

In this paper, I will investigate how Canadian legal institutions function to serve the interests of the settler colonial state in the dispossession of Indigenous peoples. This investigation will be facilitated through an examination of the court proceedings of 1492 Land Back Lane, a contemporary example whereby land defenders are being criminalized by Canadian courts for re-occupying their unceded land in Caledonia to protect it from a proposed housing development. Here we see an example of oppression, and therefore, it may be useful to utilize Sensoy & DiAngelo’s (2017) definition of oppression: namely, the prejudice and discrimination of one social group, in this case, settlers, against another, here Indigenous peoples, backed by legal authority and historical, social and institutional power (p. 84). Focusing on legal authority in this case, I seek to demonstrate ultimately how anti-Indigeneity is embedded within the Canadian legal system. In order to do this, I will begin by examining key historical legal documents, namely the Constitution of Canada and the Indian Act, with an eye to the settler colonial ideology of paternalism underlying them. Then, I will turn to the court proceedings of 1492 Land Back Lane, establishing their problematic and paternalistic nature, and grounding them within existing case law on Indigenous land rights, to demonstrate how Canadian courts can serve to perpetuate settler colonialism and land dispossession, often through the legal mechanism of injunction. Ultimately, I seek to demonstrate how the very concept of land back is incompatible with Canadian law.

Section 35 of the Canadian Constitution Act and Indigenous Self-Determination in Canada

This research paper analyzes the impacts of Section 35 of the Canadian Constitution on the enhancement of Indigenous rights in Canadian politics. As outlined in Section 35, Indigenous rights are recognized as pre-existing prior to the Constitution Act of 1982 and the identity of Aboriginal, Inuit and Métis peoples are defined. Academic literature, television broadcasts, and personal accounts of the implementation and effects of Section 35 were used to conduct this research and investigate the origins of this section in the Constitution. Notably, this analysis demonstrated that the inclusion of Section 35 in the Constitution has led to more public discussion and court cases to claim treaty rights by Indigenous peoples. The effect of including Indigenous rights in the Canadian Constitution has expanded the role of the courts in adjudicating relations between the Canadian government and Indigenous people, effectively expanding the accountability of the Canadian government to upholding treaty rights. Overall, the findings of this paper were that Section 35 plays a large role in promoting awareness of reconciliation to the Canadian public, however, it stops short of including Indigenous people as meaningful participants in their own self-determination.

Debating Settler Constitutionalism: Consent, Consultation, and Writing a Transatlantic Debate, 1822–1828

In 1822, Robert Wilmot, the undersecretary of state for the colonies, introduced a bill to unite Upper and Lower Canada in the British House of Commons. In doing so, he was proposing not just an intercolonial union but a new constitution. He believed that because the Canadas’ constitution was granted by an Act of Parliament in 1791 it could be changed by Parliament without colonial consultation or consent. Whig parliamentarians and colonists contested this interpretation and raised questions about consent and the status of colonial constitutions. These debates in the 1820s reveal just how muddied thinking about colonial constitutions and consultation had become. Lower Canadian opposition to the bill has received significant attention from historians, yet this attempt at constitutional change also forced Upper Canadians to take unexpected positions, including interpreting the 1791 act as a written charter. Through these transatlantic debates, they were continuing to fashion a settler interpretation of British constitutionalism. This article traces these ideas by examining the movement of news and rumours through emerging, intertwined colonial and imperial public spheres, which illustrate the permeability of the line between public and private information. Inserting this failed constitution-writing effort into the longer history of Canadian constitutions sheds light on the limits to imperial intervention and encourages a broader rethinking of Canadian constitutional histories and the role of empire in a long nineteenth century.

Law, Faith, and Canada’s Unwritten Constitution

This article argues that the Canadian judicial attachment to the unwritten Constitution is faith-like. The faith-like aspects of this jurisprudence include the following explicit and implicit commitments: 1. The Constitution is incompletely and imperfectly stated by the constitutional text; 2. The Constitution is revealed through the act of interpretation in glimpses over time to authoritative interpreters; 3. The unwritten Constitution has provided and will provide reliable and morally good guidance for action, sometimes overtaking the written text of the Constitution; and 4. The precise nature and location of the Constitution eludes description, leading to reliance on metaphors and references to tradition. This matters because the Canadian Constitution is often called upon, through the courts, to settle disputes surrounding religious practices. In resolving such disputes, the law must claim some form of authority over religion. I claim that the Court normatively justifies this assertion of authority by implicitly contrasting its own rationality with religion’s faith-based way of encountering the world. This claim is unstable because of the faith-like aspects of the law. This, however, is not a reason to overhaul the case law. It is instead a reason for judicial humility.

Analysis of the constitutional principle of “state sociality” in Canadá

The present study examines the constitutional principle of "social statehood" in Canada, considering the implemented model of a social state. The method and characteristics of securing a state's social guarantees are set out in the Canadian Constitution. Based on the analysis of the law, the authors concluded about the social characteristics of this state in Canada. By analyzing the reflection of the principle of "government sociality" in the jurisprudence of the Supreme Court of Canada, the authors summarized its impact on the problems of a welfare state.

The Crown's Prerogatives and the Constitution of Canada

Owing to their shared origins, there are many similarities between the prerogatives of the Crown in Canada and the United Kingdom. British case law and scholarship continues to have much to teach on the question of Crown prerogatives. But despite these shared origins and ongoing similarities, Canada's constitutional settlement means that there are also significant differences in the functioning of Crown prerogatives in Canada and the United Kingdom. This article focuses on three issues that arise in Canada in a manner that they do not in the United Kingdom: (1) the reception of Crown prerogatives into Canadian law and their continuation to the present, (2) the relationship between Crown prerogatives and entrenched constitutional provisions whose subject matter overlaps with them and (3) the distribution of Crown prerogatives between the federal and provincial orders of government (and within those orders). Together, these three issues point to the need for more distinctive Canadian scholarship on Crown prerogatives and greater engagement with debates in other countries, particularly Australia, where similar issues arise and where case law and scholarship wrestling with them may be more developed.

Canada’s Amendment Rules: A Window into the Soul of a Constitution - Review essay of Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions

This Review Essay forms part of a special issue of the Manitoba Law Journal (forthcoming) dedicated to Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions. Years in the making, Constitutional Amendments explains how amendment rules define a constitution’s integrity, ensuring its longevity by allowing and even inviting formal changes to its text. Albert’s work is prodigious and monumental, connecting abstract issues of textual design to the follies of constitutional amendment over diverse variables of time and place. This Review focuses selectively on Constitutional Amendments and its implications for Canadian amendment constitutionalism, exploring Albert’s view that amendment rules expose a constitution’s “deepest vulnerabilities” and reveal its “greatest strengths”. Specifically, the Review draws on Albert’s work to suggest a simple but sharp insight linking the 1867 Constitutions’s failure to provide textual amendment rules to the steadfast unamendability of the Canadian Constitution today.

Climate Change and the Right to a Healthy Environment in the Canadian Constitution

This article discusses the first efforts of non-governmental organizations and Indigenous communities in Canada to force governments to move more aggressively to mitigate climate change through constitutional litigation. The claimants argue the failure of the Canadian government to implement adequate climate change policies violates the constitutionally protected rights under the Canadian Charter of Rights and Freedoms, such as the section 7 right to life and security of the person, and the section 15 right to equality. By comparing the developing Canadian actions to recent international jurisprudence in the Netherlands and the United States, the authors analyze the hurdles these claims will need to overcome to be successful at the Supreme Court of Canada — justiciability and whether the Charter even provides protection for environmental rights.

Alberta's Energy and Utilities Board and the Constitution of Canada

The author explores the jurisdictional ability of an administrative tribunal — specifically, the Alberta Energy and Utilities Board (EUB) — to decide constitutional matters. She focuses particularly on tribunal decisions relating to Charter rights and Aboriginal or treaty rights (s. 35(1)) and examines the recent decisions of Martin and Paul from the Supreme Court of Canada. The author concludes that for questions of law, the EUB has not only the option but the duty to consider constitutional questions.

Evaluating Full Day Kindergarten – Is It Associated with Improved Short- And Long-Term Education Outcomes Among Metis Children?

IntroductionEarly education outcomes influence children’s educational trajectories with long-term effects extending into adulthood. Aboriginal peoples face numerous systemic barriers to academic success. It remains unknown if full-day kindergarten (FDK) is associated with improved academic outcomes among Metis children – a distinct Aboriginal people recognized by the Canadian Constitution.
 Objectives and ApproachThe Manitoba Metis Federation and the Manitoba Centre for Health Policy partnered to identify whether FDK was associated with improved short- and long-term outcomes among Metis children. We created a cohort of Metis children by linking several provincial databases held in the Manitoba Population Research Data Repository (1998-2011). Education data were used to identify all Metis children who attended FDK (n=247) vs half day kindergarten (HDK; n=547). FDK children were matched by age and sex to children in HDK. We used a step-wedged design and applied propensity scores to adjust for measured confounding. We tested for differences in grades 3, 7, 8 outcomes and high school graduation using generalized linear models.
 ResultsFDK children were more likely to live in a low-income neighbourhood. 72% FDK and 74% HDK students met or approached numeracy expectations in grade 3; and 55% FDK and 48% HDK met or approached numeracy expectations in grade 7. For reading expectations, 77% FDK and 75% HDK met or approached grade 3 reading expectations; in grade 8, 62% in each group met or approached expectations for reading and writing. High school graduation rate for FDK children was 84% and for HDK children was 64%. After adjusting for confounding we found FDK children were more likely to graduate high school than HDK children; other outcomes were non-significant.
 Conclusion / ImplicationsKindergarten programs may be insufficient to overcome structural barriers that Metis children face. Culturally appropriate education strategies are needed to support improved outcomes amongst this population.

Use of Prescription Opioids and Impact of Replacing Oxycontin With Oxyneo On Opioid Use Among Metis Citizens, 2013-2018

IntroductionCanada has one of the highest rates of prescription opioid consumption globally. Little is known about the prevalence and determinants of opioid use among citizens of the Metis nation – one of three Aboriginal groups recognized by the Canadian constitution. Objectives and ApproachOur objectives were to (i) identify trends in prescription opioid use among Metis citizens from 2006 to 2018 and (ii) identify whether replacing OxyContin with OxyNeo in February 2012 differentially impacted prevalence of opioid use among Metis when compared with all other Manitobans. The Manitoba Metis Federation and the University of Manitoba partnered on this research. We identified prescription opioid use using dispensation records from the province’s drug database, which includes records for all prescription drugs dispensed in community. We defined acute prescription opioid use as ≤28 days prescription and chronic use as ≥ 29 days’ prescription. We tested for differences in annual trends in acute and chronic prescription opioid use between Metis and all other Manitobans. We used an interrupted time series design to test whether replacing OxyContin differentially impacted prevalence of acute and chronic opioid use among Metis when compared with all other Manitobans. We used generalized linear models to test for trends and the impact of replacing OxyContin. ResultsAcross all years (2006-2018) acute prescription and chronic opioid use was higher among Metis than all other Manitobans. Acute and chronic use decreased in both groups, non-differentially. Replacing OxyContin with OxyNeo was associated with decreased acute opioid use in both Metis and all other Manitobans and had a greater impact on chronic opioid use among Metis than among all other Manitobans. Conclusion / Implications: Findings highlight the differential experiences arising from the historic and ongoing colonial project in Canada, which need to be considered when working to prevent and treat inappropriate Opioid use among Metis.

Clarifying the Matter: Modernizing Peace, Order, and Good Government in the Greenhouse Gas Pollution Pricing Act Appeals

Few passages in the Canadian Constitution have generated as much debate over the years as the opening words of section 91 of the Constitution Act, 1867 commonly known as the Peace, Order, and Good Government (hereinafter “POGG”) clause. Most of the controversy about POGG centers around how to interpret the clause in a way that allows the federal government to address issues of genuine national concern (that warrant a national response) while respecting provincial autonomy and diversity in our federation. The tensions underpinning POGG were recently revealed in the trio of provincial challenges to the constitutionality of Parliament’s Greenhouse Gas Pollution Pricing Act (GGPPA), in which provinces argued that upholding the GGPPA would have the effect of displacing provincial jurisdiction over GHG emissions. While two of the three Courts of Appeal (Saskatchewan and Ontario) upheld the GGPPA as a matter of national concern under POGG, doing so was apparently a struggle, as they strained against the watertight confines of earlier eras of constitutional interpretation still evident in POGG jurisprudence. Now under appeal to the Supreme Court, this trio of references offers an opportunity for the Court to clarify the contours of POGG in the modern context of flexible, cooperative federalism. In this article, we examine three central tensions that the GGPPA appeals revealed about POGG. First, we consider, and reject, the argument that POGG benefits from a special kind of exclusivity, different from enumerated powers, that has the effect of displacing provincial power. We show that this argument is steeped in the bygone era of watertight compartments and a suggestion that POGG creates an unassailable core, akin to that which underpins the doctrine of interjurisdictional immunity. We explain why this argument is unfounded in the modern era of cooperative federalism. Second, we examine a source of confusion in the GGPPA appeals related to how the word ‘matter’ is used, which we submit contributed to the challenging provinces’ fear that provincial power will be permanent displaced if the legislation is upheld under POGG. Specifically, the challenging provinces argued that upholding the GGPPA would necessarily create a new sub-head of exclusive federal power over a broad subject matter (GHG emissions) that would displace their jurisdiction. We discuss how the word ‘matter’ is used to refer both to the pith and substance of legislation and the possibility of a new sub-head of power that could be recognized for Parliament if the law is upheld. We submit that this terminological confusion fuels the fears about the impact of upholding the legislation under POGG on provinces. Third, and most importantly, we consider the extent to which federal jurisdiction under POGG can peacefully co-exist with related provincial authority. The provincial appeals have revealed that most of the justices – even those that upheld the GGPPA – are operating under an assumption that the double aspect doctrine does not apply to matters justified under POGG. We examine the historical development of the double aspect doctrine to show that there is no basis for this assumption, and suggest the Supreme Court should clarify that the doctrine applies to matters upheld under POGG, just as it would for enumerated powers. We also argue in this paper that the Supreme Court should update the test set out in Crown Zellerbach more than 30 years ago. In the intervening decades, the courts have more fully embraced a flexible interpretation of the division of powers that tolerates more de facto concurrent operation of statutes on similar subject matters. The provincial challenges have revealed the extent to which the Crown Zellerbach test, and specifically the way in which the potential scale of impact on provincial jurisdiction is evaluated, leaves much uncertainty about the level of overlap that can operate. We deconstruct the Crown Zellerbach test and propose a more flexible, nuanced, analytical approach that empowers the federation to address pressing public policy problems such as climate change in a way that respects federalism. Ultimately, the Supreme Court has an opportunity in the GGPPA appeals to interpret POGG in a way that empowers all levels of government in our federation to respond to increasingly pressing, dynamic, multi-dimensional public policy challenges, such as climate change. Our article shows that there is a role for POGG to play in enabling the federal government to be accountable for reducing the country’s overall level of emissions in accordance with international commitments while also allowing the provinces to continue legislating to reduce GHG emissions.

Test, Trace, and Isolate: COVID-19 and the Canadian Constitution

Executive Summary Contact tracing is essential to controlling the spread of infectious disease and plays a central role in plans to safely loosen COVID-19 physical distancing measures and begin to reopen the economy. Contact tracing apps, used in conjunction with established human contact tracing methods, could serve as part of Canada’s “test, trace, and isolate” strategy. In this brief, we consider the potential benefits of using contract tracing apps to identify people who have been exposed to COVID-19, as well as the limitations of using this technology. We also consider the privacy implications of different app design choices. Finally, we consider how the privacy impacts of contact tracing apps could be evaluated under the Canadian Charter of Rights and Freedoms, which provides a framework for balancing competing rights and interests. We argue that so long as apps are carefully constructed and the information they reveal is appropriately safeguarded, tracing apps may have a role to play in the response of a free and democratic society to the Covid 19 pandemic. 1. Improving the Efficiency of Human Contact Tracing: The public health goal of a contact tracing app should be to integrate with human contact tracing and make it more efficient rather than replace it. We need to keep humans in the loop to ensure accuracy and to maintain the important social functions of contact tracing, which includes educating people about risks and helping them access social supports. 2. Privacy Choices: Currently, the most privacy-protective design for contact tracing apps makes use of proximity data (via Bluetooth) through a decentralized design. This method is receiving significant technical support from Apple and Google. However, this method fails to integrate with the human contact tracing system. Other options, such as the use of location logs or a centralized registration system, are more aligned with the public health goal of integration with human contact tracing but raise additional privacy questions. In addition to the constitutional questions raised by these privacy choices, there are two important considerations. First, social trust is important. If individuals do not feel comfortable with using a particular contact tracing app there will not be the large-scale uptake needed to make these an effective addition to human contact tracing. Second, due to various technical challenges, it is difficult to make effective contact tracing apps utilizing proximity data unless one uses the method supported by Apple and Google. However, Google and Apple prohibit app developers both from utilizing centralized methods and from utilizing location data. 3. Constitutional Balancing: Our privacy commissioners have discussed the need to assess these privacy choices according to the principles of necessity and proportionality. The Canadian Charter provides an important framework for thinking about these principles as it provides us with a framework for how to balance rights and interests in a free and democratic society. The Charter requires that we choose the most privacy-protective app design that meets the public health goal, so long as the benefits of meeting this goal outweigh its deleterious effects on privacy. This requires a reasonable belief in the efficacy of such an app. It also requires an assessment of the nature of the benefits, which are not just the economic benefits of reopening the economy. The currently prevailing restrictions on movement and work are themselves limitations of basic rights and liberties. Individuals who self-isolate in situations of poverty, precarious housing, mental health challenges, abusive relationships, or other vulnerabilities face challenges that affect their security of the person. There are also broader effects on equality and human flourishing. If contact tracing, enhanced by an app, reduces the need for restrictions in the form of self-isolation, it promotes other Charter rights and values (e.g., security of the person) which must be balanced against the potential infringement of privacy rights.

The Toronto Municipal Election: Judicial Failure to Protect the Structure of the Canadian Constitution

In Toronto (City) v Ontario (AG),1 a recent decision on the legality of legislative interference in the Toronto 2018 municipal election, the Ontario Court of Appeal makes an alarming attempt to rewrite the Canadian Constitution. The subject of this revision is the legitimate role of unwritten principles in constitutional interpretation. Robin Elliot maintains, in a leading scholarly treatment of the subject, that unwritten principles can inform constitutional interpretation in two main ways: first, they can provide an independent basis on which to overrule impugned legislation; second, they can assist in interpreting constitutional text.2 Elliot qualifies the former usage by limiting it to those principles that “can fairly be said to arise by necessary implication from provisions of the text of the Constitution … since they have the same legal status as the text.”3 The Court of Appeal, however, states that unwritten principles cannot be used as a stand-alone basis on which to overrule legislation.4
 In this article, I draw on numerous Supreme Court of Canada decisions to argue that the Ontario Court of Appeal’s view of the Constitution is, with respect, fundamentally flawed. Unwritten principles inform the structure of a democratic constitution and thereby provide legislation with its claim to legitimacy. Legislation that violates foundational unwritten principles is, of necessity, subject to judicial challenge. I also argue that the Court of Appeal’s doctrinally unsustainable approach to unwritten principles led to a flawed ruling on the legality of Ontario’s interference in the 2018 Toronto election. In Reference re Senate Reform, the Supreme Court of Canada unanimously states that “constitutional interpretation must be informed by the foundational principles of the Constitution.”5 The Court of Appeal failed to provide any detailed consideration of the democratic principle, and thereby failed to recognize the constitutional imperative that protects the integrity of the electoral process.
 *PhD in Constitutional and Administrative Law, Queen’s University. Principal of Public Law Solutions, a research firm in Toronto.[1] 2019 ONCA 732 [Toronto v Ontario (CA 2019)].[2] “References, Structural Argumentation and the Organizing Principles of Canada’s Constitution” (2001) 80 Can Bar Rev 67 at 83-86, 141-42, and generally 86-98.[3] Ibid at 95. See also 83-84.0[4] Toronto v Ontario (CA 2019), supra note 1 at para 89.[5] 2014 SCC 32 at para 25 [Senate Reference].

Treaty Failure or Treaty Constitutionalism? The Problematic Validity of the James Bay and Northern Quebec Agreement

In 1975, the signatories to the James Bay Northern Quebec Agreement (JBNQA) anticipated the possibility that critical portions of the Agreement could be judicially invalidated on federalism grounds. In light of that possibility, the signatories set out their obligations to each other should that invalidation occur. My question is: given all of the constitutional and jurisprudential changes that have happened since, is the JBNQA constitutionally valid today? It certainly is presumed to be valid, but this presumption has never been directly posed to the Supreme Court of Canada. This article builds an argument that the premises established in contemporary jurisprudence, on the law as it now stands, lead to the conclusion that the JBNQA is invalid. While my answer is that current jurisprudence is consistent with the JBNQA’s invalidity on federalism grounds, I briefly engage the further question of whether a ‘living tree’ textual reinterpretation of section 35(1) of the Constitution Act, 1982 could uphold the Agreement’s constitutionality despite its federalism defect. In other words, can section 35(1) bear the weight of a treaty amendment clause? I argue that it currently does not but that it could. I then show how such a reinterpretation of section 35(1) would in effect be a reinterpretation of the whole Canadian constitutional order. What is at stake in this discussion of the JBNQA and the Canadian Constitution is nothing less than what the Canadian Constitution is all about.

Pandemic Data Sharing: How the Canadian Constitution Turned Into a Suicide Pact

For decades, public health professionals, scholars, and on multiple occasions the Auditor General of Canada, have raised warnings about Canada’s dysfunctional system of public health data sharing. While proper data sharing will not automatically translate into an effective response to the pandemic, it is an indispensible precursor to developing one. Nonetheless, data that are the sine qua non of Canada battling COVID-19 scientifically and effectively are not shared between the provinces and the federal government. With its woefully inadequate response anchored in the erroneous belief that health falls purely within the jurisdiction of the provinces, despite the Supreme Court’s clear conclusions to the contrary, Canada currently relies on voluntary agreements that are not merely ineffective, but may actually inhibit data sharing. There is no reason for this to be the case. As outlined in this chapter, Canada already possesses the powers, under the Statistics Act and the Public Health Agency of Canada Act, to oblige provinces to share vital data in a timely manner. It must exercise those powers, both in response to the current pandemic, and against the threat of even more serious public health emergencies in the future.

Governmental Power and COVID-19: The Limits of Judicial Review

The goal of this Chapter is to explain why those hoping for a high level of judicial engagement with the forms of power being used to combat the cultural, economic, medical, social and other fallout from the current pandemic are likely to be disappointed. In Part I, I explain the different forms of power being used in Canada, at the federal and provincial levels, to respond to the pandemic: imperium (general norms with the force of law), dominium (government contracting and distribution of resources) and suasion (information provided to the citizenry). I go on in Part II to explain why judges are unlikely to enforce public law principles, such as reasonableness, procedural fairness and compliance with the Constitution of Canada, including the Charter of Rights and Freedoms, on the uses of these different forms of power. As to imperium, any judicial engagement is likely to be at the margins and as to dominium and suasion there is a long tradition of judges refusing to extend the judicial review jurisdiction to encompass contractual decisions and the provision of non-binding guidance. Those concerned about the difficulty of holding Canadian governments to account in these trying times would be better advised to look to improving the channels of political accountability than trying to navigate those of legal accountability

The Unconstitutional Nature of the Criminalisation of the Purchase of Sex in Canada: R v Anwar & Harvey 2020 ONCJ 103

The Applicants, Mr Anwar and Ms Harvey, operated Fantasy Worlds Escorts (FWE) agency in London, Ontario, Canada. They were charged with the following offences under the Canadian Criminal Code relating to the commodification of sexual activity: receiving a financial or material benefit from prostitution contrary to s 286.2(1), procuring a person to offer or provide sexual services for consideration contrary to s 286.3(1) and knowingly advertising an offer to provide sexual services for consideration contrary to s 286.4. The pair challenged the charges on the basis that they were in contravention of the Canadian constitution, specifically the Canadian Charter of Rights and Freedoms as the laws in question prevented sex workers from lawfully using third parties to protect them and to prevent them from forming associations in order to create a system of mutual protection. As the provisions targeted sex workers and prevented them from accessing things that are natural, expected and encouraged in other sectors of work, the Applicants argued that the existing prostitution laws denied sex workers, who are in particular need of protection, the benefits accorded to mainstream labour.

The Historical and Formal Foundations of Canadian Constitutional Law

Canadian constitutional history, since France ceded Canada to the British Crown, can be divided into five broad stages: the beginning of the British colonial regime, the establishment of “responsible government,” the establishment of the federal system, independence, and finally federal-provincial relations and patriation of the Constitution. The Constitution of Canada is made of a number of components that include certain British Acts and decrees, certain federal and provincial laws, constitutional conventions, the common law and case law, and, to a lesser extent, certain secondary sources, such as legal commentaries and literature, and federal-provincial agreements. The purpose of this chapter is twofold. On the one hand, it is to conduct a very brief review of the major periods of Canadian constitutional history and, on the other, to present the various formal components of Canada’s Constitution.