Key Canadian Constitutional Cases and Legal Principles

Loving v. Virginia

Set in the 1950s and 1960s, the film follows Richard Loving (Joel Edgerton), a white man, and Mildred Jeter Loving (Ruth Negga), a Black woman, who fall in love and marry in Washington, D.C., to avoid Virginia's anti-miscegenation laws. When they return to their home in Virginia, they are arrested for violating state laws banning interracial marriage. The court gives them the choice to leave Virginia or face jail time, forcing them to move to Washington, D.C. Unhappy with being exiled from their home and family, Mildred reaches out to the American Civil Liberties Union (ACLU), which takes up their case. After years of legal battles, their case reaches the U.S. Supreme Court in Loving v. Virginia. In 1967, the Court unanimously rules in their favor, striking down laws banning interracial marriage across the country. The film portrays their love and quiet resilience rather than focusing on dramatic courtroom scenes. Instead, it highlights their struggle, the injustice of segregation-era laws, and the personal impact of their fight for justice.

Amending Formula (Constitution Act, 1982)

The amending formula refers to the process of changing the Constitution.

1. General Amending Formula (7/50 Rule) – Section 38

• Approval by Parliament (House of Commons & Senate)
• Approval by at least 7 provinces
• Those 7 provinces must represent at least 50% of Canada's population

2. Unanimous Consent – Section 41

Some changes require approval from ALL provinces and Parliament, such as:

• The role of the monarch
• Changes to the Governor General or Lieutenant Governors
• The composition of the Supreme Court

3. Provinces Only (Opting Out) – Section 38(3) & 43

• A province can opt out of certain amendments that do not apply to all provinces.
• Changes that only affect one or a few provinces (e.g., Quebec's language laws) require approval from only those provinces and Parliament.

4. Federal Government Alone – Section 44

• The federal government can amend parts of the Constitution that only affect federal institutions (like the Senate and House of Commons) without provincial consent.

5. Provinces Alone – Section 45

• Provinces can amend their own provincial constitutions without federal approval.

R. v. Big M Drug Mart Ltd. (1985)

Facts of the Case

Big M Drug Mart, a store in Alberta, was charged under the Lord’s Day Act, a federal law that made it illegal for businesses to open on Sundays. The law was meant to enforce Sunday as a universal day of rest, based on Christian religious traditions. Big M Drug Mart challenged the law, arguing that it violated Section 2(a) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of religion.

Legal Issue

• Did the Lord’s Day Act violate freedom of religion under Section 2(a) of the Charter?

Supreme Court Decision (1985)

The Supreme Court of Canada unanimously struck down the Lord’s Day Act because:

1. It violated freedom of religion – The law forced religious observance on everyone.
2. Freedom of religion includes freedom from religion – The government cannot impose religious traditions.
3. The law was not justified under Section 1 – It had no valid secular purpose.

Significance

• First major Charter case on freedom of religion in Canada.
• Set a precedent that laws based on religious traditions cannot be imposed on all citizens.
• Strengthened the idea that government must remain neutral in religious matters.

R. v. Keegstra (1990)

Facts of the Case

James Keegstra, a high school teacher in Alberta, was charged under Section 319(2) of the Criminal Code for promoting hatred against an identifiable group. He taught students that Jewish people were evil and exaggerated the Holocaust.

Legal Issue

Keegstra argued that Section 319(2) violated Section 2(b) of the Charter (freedom of expression). The question was whether Canada's hate speech laws infringed on free speech and if they were justified under Section 1.

Supreme Court Decision (1990)

The Supreme Court of Canada (4-3 decision) ruled that:

1. Yes, Section 319(2) violates freedom of expression under Section 2(b).
2. The restriction was justified under Section 1 because hate speech harms social harmony and individual dignity.

Significance

• Upheld Canada’s hate speech laws.
• Demonstrated that some limits on free speech are justified in a democratic society.

Little Sisters Book and Art Emporium v. Canada (2000)

Facts

• Little Sisters Bookstore, a Vancouver LGBTQ+ bookstore, sued Canada Customs for unfairly seizing and censoring its imported materials.
• Canada Customs disproportionately targeted LGBTQ+ publications.

Legal Issue

• Did Canada Customs’ actions violate Section 2(b) (freedom of expression) and Section 15 (equality rights)?

Supreme Court Decision (2000)

• The Court ruled that Canada Customs applied the law in a discriminatory way against LGBTQ+ content.
• The Court upheld the law itself, stating that regulating obscenity was constitutional—but it had to be applied fairly.

Significance

• Confirmed LGBTQ+ rights and freedom of expression.
• Limited government censorship of queer literature.

Arsenault-Cameron v. Prince Edward Island (2000)

Facts

• French-speaking parents in PEI requested a French-language school under Section 23 of the Charter.
• The PEI government refused, claiming there weren’t enough students.

Supreme Court Decision (2000)

• The Court ruled in favor of the parents, stating that PEI failed in its duty to provide French-language education.
• Section 23 guarantees education in minority languages where numbers warrant.

Significance

• Strengthened Francophone education rights in Canada.

Irwin Toy Ltd. v. Quebec (1989)

Facts

• Quebec banned advertising to children under 13 to protect them from marketing manipulation.
• Irwin Toy Ltd. challenged the ban, claiming it violated Section 2(b) (freedom of expression).

Supreme Court Decision (1989)

• The Court ruled that commercial advertising is a form of expression protected under Section 2(b).
• However, the ban was justified under Section 1 to protect children.

Significance

• Confirmed commercial speech as protected expression.
• Allowed reasonable limits on advertising when protecting public interest.

CUPE v. Canadian Airlines & Air Canada (2006)

Facts

• CUPE challenged airline retirement policies that forced pilots to retire at age 60.
• They argued this was age discrimination under the Canadian Human Rights Act.

Supreme Court Decision (2006)

• The Court ruled that mandatory retirement policies were not discriminatory, as they were based on safety concerns in aviation.

Significance

• Clarified when age-based rules are legal.
• Set limits on when mandatory retirement is justified.