Ontario Constitutional Law Guide 2024

The Constitutional Framework in Ontario

Canadian constitutional law has two primary sources: the Constitution Act, 1867 (formerly the British North America Act) which establishes the federal structure and division of legislative powers; and the Constitution Act, 1982 which patriated the constitution and added the Canadian Charter of Rights and Freedoms. Both instruments are part of the Constitution of Canada under s.52(1) of the Constitution Act, 1982 — which provides that the Constitution is the supreme law of Canada and any inconsistent law is of no force or effect.

Ontario litigation intersects with constitutional law in several ways: criminal defence counsel raising Charter arguments to exclude evidence or stay proceedings; administrative law practitioners challenging regulatory decisions for Charter compliance; civil litigants challenging provincial legislation under division of powers or Charter grounds; and government lawyers defending statutes against constitutional attack.

The Canadian Charter of Rights and Freedoms

The Charter, which came into force on April 17, 1982, protects fundamental rights and freedoms of individuals against government action. Charter rights include:

• Section 2: Fundamental freedoms — conscience and religion, thought, belief, opinion and expression (including freedom of the press), peaceful assembly, and association
• Section 3-5: Democratic rights — right to vote, to be an elected candidate, maximum 5-year parliamentary terms, annual sittings of Parliament and legislatures
• Section 6: Mobility rights — right to enter and leave Canada, right to move to any province
• Sections 7-14: Legal rights — life, liberty and security of the person (s.7); unreasonable search and seizure (s.8); arbitrary detention (s.9); rights on arrest (s.10); fair hearing rights (s.11); cruel and unusual punishment (s.12); self-incrimination (s.13); interpreter rights (s.14)
• Section 15: Equality rights — equal benefit of the law without discrimination based on enumerated and analogous grounds
• Sections 16-23: Language rights — official languages, minority language education
• Section 28: Guarantee of rights equally to male and female persons
• Section 35: Aboriginal rights (not in the Charter itself but in Part II of the Constitution Act, 1982)

Government Action Requirement

The Charter applies only to government action — it does not govern private disputes between individuals. The key test from Dolphin Delivery (1986) and refined in RWDSU v Dolphin Delivery: the Charter applies to legislation, executive action, and government actors. Courts applying common law in private disputes may develop the common law consistently with Charter values (horizontal application through the common law), but the Charter itself does not directly bind private parties.

Whether an entity is "government" for Charter purposes requires examining whether the activity is governmental in nature — Eldridge v British Columbia (1997) established that private entities performing a government function may be subject to Charter scrutiny for those functions.

Section 1 and the Oakes Test

Section 1 of the Charter guarantees rights and freedoms "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." This means that a Charter violation is not automatically fatal — the government may justify the infringement.

The Oakes test from R v Oakes [1986] 1 SCR 103 is the framework for s.1 analysis:

Step 1: Pressing and Substantial Objective

The government must establish that the objective of the limiting law is pressing and substantial. Most legislative objectives satisfy this threshold — courts are generally deferential at this stage. The objective must be identified from the purpose of the legislation as a whole, not a post-hoc litigation justification.

Step 2: Proportionality

The means chosen must be proportional to the objective. Proportionality has three sub-parts:

(a) Rational connection: There must be a rational connection between the measure and the objective — the means must not be arbitrary, unfair, or based on irrational considerations. This is rarely fatal; courts generally find rational connection if any logical basis exists.

(b) Minimal impairment: The law must impair the Charter right as little as reasonably possible. The government need not choose the least restrictive means available — but must show the chosen means falls "within a range of reasonable alternatives." This is where most s.1 analyses succeed or fail. Courts apply a contextual assessment — judicial deference is greater in complex regulatory settings where the legislature must balance competing interests (RJR-MacDonald v Canada).

(c) Proportionality of effects: The effects of the limitation must be proportionate to the objective — the more severe the infringement on the Charter right, the more significant the objective must be. This third stage is relatively rare in litigation but has become more prominent in recent Supreme Court cases.

Division of Powers: Sections 91 and 92

The division of legislative powers between Canada's federal Parliament and provincial legislatures is established in the Constitution Act, 1867. The characterization of legislation proceeds by identifying its "pith and substance" — its dominant purpose and effect — and then assigning it to a head of power.

Federal Powers Under Section 91

Section 91 grants Parliament exclusive jurisdiction over, among others:

• The Public Debt and Property (s.91(1A))
• Trade and Commerce (s.91(2)) — interprovincial and international trade
• Unemployment insurance (s.91(2A))
• Banking, incorporation of banks (s.91(15))
• Bills of exchange and promissory notes (s.91(18))
• Interest (s.91(19))
• Bankruptcy and insolvency (s.91(21))
• Patents and copyright (ss.91(22)-(23))
• Marriage and divorce (s.91(26))
• The criminal law (s.91(27))
• Indians and lands reserved for Indians (s.91(24))
• Immigration and aliens (s.91(25))
• Navigation and shipping (s.91(10))

The Peace, Order, and Good Government (POGG) clause in the opening of s.91 grants federal jurisdiction over matters not assigned to provinces — including the national concern doctrine (matters that have achieved a genuine national dimension beyond provincial concern) and the emergency doctrine (crises requiring temporary federal intervention).

Ontario's Powers Under Section 92

Section 92 grants provinces exclusive jurisdiction over:

• Direct taxation within the province (s.92(2))
• Borrowing money on the sole credit of the province (s.92(3))
• Municipal institutions (s.92(8))
• Licences (s.92(9))
• Local works and undertakings (s.92(10))
• Incorporation of companies with provincial objects (s.92(11))
• Solemnization of marriage in the province (s.92(12))
• Property and civil rights in the province (s.92(13)) — the broadest head, encompassing most of Ontario's private law, commercial law, and regulatory law
• The administration of justice in the province (s.92(14)) — provincial courts, civil procedure, law enforcement within the province
• Education (s.92(A))
• Matters of a merely local or private nature (s.92(16)) — a residual provincial head

Section 92(13) — property and civil rights — is the constitutional basis for most Ontario legislation: the Ontario Business Corporations Act, the Employment Standards Act, the Residential Tenancies Act, the Consumer Protection Act, the PPSA, the Family Law Act, and vast swaths of Ontario regulatory law all rest on this head of power.

Federal Paramountcy

Where valid federal and provincial laws conflict, federal paramountcy renders the provincial law inoperative to the extent of the conflict. The test from Canadian Western Bank v Alberta [2007] 2 SCR 3:

1. Operational conflict: Is compliance with both laws simultaneously impossible?
2. Frustration of federal purpose: Does the provincial law frustrate the purpose of the federal law?

Paramountcy renders the provincial law inoperative, not invalid — if the federal law is repealed, the provincial law revives. The doctrine applies narrowly; courts prefer interpretations that allow both laws to operate together (Multiple Access v McCutcheon).

Inter-jurisdictional Immunity

A related doctrine — inter-jurisdictional immunity — protects the core of federal powers from provincial laws that impair essential functions of federally-regulated undertakings. The doctrine has been narrowed significantly by the Supreme Court in Canadian Western Bank — it applies only to the existing core of established federal powers and should not be extended to new situations.

The Notwithstanding Clause: Section 33

Section 33 of the Charter allows Parliament or a provincial legislature to override ss.2 and 7-15 of the Charter by expressly declaring that a law operates notwithstanding those provisions. Key features:

• The declaration must be express — a general statement that a law operates subject to the Charter is insufficient
• A s.33 declaration expires after 5 years unless re-enacted
• The clause cannot override: s.3 (voting rights), s.6 (mobility rights), ss.16-23 (language rights), s.28 (gender equality)
• Ontario has invoked s.33 for Bill 307 (third-party election advertising, 2021) and Bill 28 (education worker back-to-work legislation, 2022 — later repealed)

The constitutionality of pre-emptive (rather than responsive) use of s.33 — invoking the clause before a court finds a Charter violation — was upheld by Ontario's Court of Appeal in Working Families Ontario v Ontario (2023). The Supreme Court has not yet definitively addressed pre-emptive use.

Constitutional Remedies Under Section 24

Section 24(1) provides broad remedial authority to courts for proven Charter violations: "anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."

Available Remedies

Courts have granted: declarations that a law violates the Charter; stays of proceedings in criminal matters where the Charter breach is serious enough to prejudice the accused; injunctions restraining unconstitutional government action; damages for proven Charter violations (the framework from Ward v Vancouver [2010]); and constitutional exemptions from otherwise valid laws for specific individuals.

Section 24(2): Exclusion of Evidence

Evidence obtained in violation of the Charter may be excluded under s.24(2) if its admission would bring the administration of justice into disrepute. The R v Grant [2009] three-stage test applies:

1. Seriousness of the Charter-infringing conduct: Was the violation deliberate, willful, or in bad faith? Or was it technical and inadvertent?
2. Impact on Charter-protected interests: How seriously did the violation impact the accused's Charter-protected interests?
3. Society's interest in adjudication on the merits: Is the evidence reliable? How serious is the offence?

The Grant analysis requires balancing these factors — exclusion is not automatic even for serious violations if the evidence is reliable and the offence is grave. The Supreme Court of Canada recalibrated the s.24(2) analysis in R v Tim (2022), emphasizing that courts must genuinely weigh all three factors without defaulting to inclusion on the basis of reliability alone.

Section 52 Declarations of Invalidity

Unlike s.24 remedies (which address specific parties), s.52(1) of the Constitution Act, 1982 provides the power to strike down legislation inconsistent with the Constitution. Courts have developed a sophisticated approach to the remedy for unconstitutional legislation:

• Immediate declaration of invalidity: The unconstitutional law is struck immediately
• Suspended declaration: Courts suspend the declaration for a period (typically 12 months) to allow Parliament or the legislature to craft a constitutional replacement — used when immediate invalidity would create a legal vacuum or harm third parties (R v Nur (2015))
• Reading in: Courts read additional language into an underinclusive statute to cure the constitutional defect without striking the whole law
• Reading down: Courts narrow the scope of an overinclusive provision to preserve constitutional operation
• Severance: Courts sever the unconstitutional portion while preserving the rest of the statute

Atticus for Ontario Lawyers Handling Constitutional Matters

Constitutional litigation requires meticulous record-keeping — managing constitutional notices, tracking court schedules, and coordinating with the Attorney General of Canada and Ontario (which must be notified of constitutional challenges under s.109 of the Courts of Justice Act). Atticus is built for Ontario solo and small law firms and manages the full practice administration layer — client intake, matter management, trust accounting, and HST billing — at $149 CAD per lawyer per month, so constitutional litigation teams can focus on the substantive arguments.

Frequently Asked Questions

What is the Oakes test for Charter s.1 justification in Ontario?

The Oakes test from R v Oakes [1986] requires the government to prove the law has a pressing and substantial objective and that the means are proportional — including a rational connection to the objective, minimal impairment of the right, and proportional effects. The minimal impairment step is where most Charter challenges succeed or fail.

What is the division of powers between federal and provincial governments in Canada?

Sections 91 and 92 of the Constitution Act, 1867 divide legislative powers. Section 91 gives federal Parliament exclusive jurisdiction over criminal law, trade and commerce, banking, and marriage and divorce. Section 92 gives provinces exclusive jurisdiction over property and civil rights, administration of justice, education, and municipal institutions. Ontario's s.92(13) property and civil rights head underlies most Ontario private law.

How does the notwithstanding clause work under s.33 of the Charter?

Section 33 allows Parliament or a provincial legislature to declare that a law operates notwithstanding ss.2 or 7-15 of the Charter. The declaration must be express and renewed every 5 years. Ontario has invoked s.33 for election advertising (Bill 307) and back-to-work legislation (Bill 28, later repealed). The clause cannot override democratic rights, mobility rights, or language rights.

What remedies are available under s.24 of the Charter?

Section 24(1) provides broad remedial authority — courts may award declarations, stays, injunctions, damages, or constitutional exemptions for proven Charter violations. Section 24(2) governs exclusion of evidence obtained in violation of the Charter — applying the three-part Grant test: seriousness of the Charter-infringing conduct, impact on the accused's interests, and society's interest in adjudication on the merits.

What is the doctrine of federal paramountcy in Canadian constitutional law?

Federal paramountcy renders provincial law inoperative when it conflicts with valid federal law. The Canadian Western Bank two-part test asks: (1) Is simultaneous compliance with both laws impossible? (2) Does the provincial law frustrate the purpose of the federal law? Paramountcy renders provincial law inoperative, not invalid — it revives if the federal law is repealed.