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THE NEED FOR CONSTITUIONAL PROTECTION
o
SECTION 35
(a) Text of s.35
s.35 – gives constitutional protection to “the existing aboriginal and treaty rights of the aboriginal peoples of Canada”.
(b) Outside Charter of Rights
o The definition of “aboriginal peoples of Canada” includes “the Indian, Inuit and Metis peoples of Canada”.
o s.35 is located outside the Charter (which occupies ss. 1 to 34) and the rights referred to in s.35 are not qualified by s.1, nor are they subject to legislative override under s.33, nor are the rights effective only against governmental action, as stipulated in s.32.
o On the other hand, the disadvantage is that the rights are not enforceable under s.24, a provision that permits enforcement only of the Charter.
(c) “Aboriginal peoples of Canada”
o Indian, Inuit, and Metis people, and Non-Status Indians (under s.35(2))
R v Powley [2003]
o Since its difficult to identify who Metis people are, the court created 3 broad factors to identify them:
(1) Self-identification of Metis community
(2) Ancestral connection must be traced
(3) Community acceptance and member of modern Metis community
(d) “Aboriginal and Treaty Rights”
(e) “Existing”
o S35 = protects existing aboriginal rights and treaty rights does not exclude tights that coame into axistance after 1982 because such rights could only be treaty rights
o s.35(3) – For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreement or may be so acquired.
o The last phrase, “or may be so acquired”, makes clear that treaty rights are acquired after 1982 are protected by s.35.
o What is the status of aboriginal or treat rights that had been extinguished or regulated before 1982?
R v Sparrow (1990)
o PRINCIPLE: the word “existing” in s.35 = “unextinguished”. A right that had been validly extinguished before 1982 was not protected by s.35 AND the Act extinguishing the right must be clear and plain of its intention to extinguish the aboriginal right.
o SCC Held: the court refused to imply an extinguishment from the admittedly extensive regulatory control of the Fisheries Act. While an aboriginal right could be extinguished by federal statute before 1982, a federal statute would have that effect only if the intention to extinguish was “clear and plain”. The Fisheries Act and its regulations (although they prohibited fishing, except under a statutory licence) did not demonstrate “a clear and plain intention to extinguish the Indian aboriginal right to fish. Therefore, the right was an “existing” right within the meaning of s.35.
o The effect of the word “existing” in s.35 was to exclude from constitutional protection those rights that had been validly extinguished before 1982.
o The court attributed an expansive or liberalizing effect to the word “existing”: the word “existing” meant that the guaranteed rights are “affirmed in a contemporary form rather than in their primeval simplicity and vigour”. For example, hunt and fish by bow and arrow where not limited to these means and a right to trade in the form of barter in modern times extend to the use of currency, credit, etc.
(a) “Recognized and Affirmed”
Sparrow:
o The rights protected by s.35 are not absolute, they are subject to regulation by federal laws, provided the laws met a standard of justification like that of s.1. A justified impairment would have to pursue an objective that was “compelling and substantial”.
o For example, the conservation and management of a limited resource would be a justified objective, but “the public interest” would be too vague to serve as a justification.
o In the Sparrow case itself, the court did not feel able to decide whether the net-length restriction would satisfy the standard of justification.
o SO, IF A LAW HAD THE EFFECT OF IMPAIRING AN EXISTING ABORIGINAL RIGHT, IT WOULD BE SUBJECT TO JUDICIAL REVIEW TO DETERMINE WHETHER IT WAS A JUSTIFIED IMPAIRMENT
o Justified Impairment = must pursue an objective that is “compelling and substantial”
i.e. if a sufficient objective is found, then the law must employ a means that were consistent with “special trust relationship” between government and aboriginal people
R v Gladstone (1996)
o Issue: whether restrictions on the sale of herring spawn on kelp could be justified in their application to aboriginal people who had an aboriginal right to sell the spawn.
o SCC Held: applied Sparrow test that holders of aboriginal rights would have to be given priority in access to the resources such as fishery.
o BUT the court held that this was not acceptable for a right without internal limitations. The Sparrow requirement of justification did NOT require aboriginal priority, but could be satisfied by “objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups”
o The court conclude that there was insufficient evidence to determine whether the regulatory scheme for the sale of herring spawn was justified, and remitted the issue to a new trial.
NOTE:
è This ruling on justification seems to be a departure from the Sparrow’s instance on “compelling and substantial” objectives.
è This runs the risk that later courts will not impose the strict standards of justification on regulatory schemes that derogate from those aboriginal or treaty rights that are not limited by their own terms.
(b) Application to Treaty Rights
R v Badger [1996]
o Sparrow only concerned aboriginal rights. But because s.35 applied to treaty rights and aboriginal rights, the doctrine of Sparrow therefore applies to BOTH treaty rights AND aboriginal rights
o HOGG à the standard of justification for a law impairing a treaty right should be very high indeed!
*R v Marshall [1999]
o There is a difference between DEFINING the treaty right and REGULATING the treaty right
o “Only those laws that would take the aboriginal catch BELOW the qualities reasonably expected to produce a moderate livelihood, should be REGULATING the treaty right...and those laws would need to satisfy the Sparrow Test of Justification...”
o WHEN DEFINING A TREATY RIGHT, IT DO NOT NEED TO SATESFY THE SPARROW TEST
(c) Application to Extinguishment
o Sparrow = s.35 to protect aboriginal and treaty rights from extinguishment by federal legislation
o Therefore, the Sparrow Test of Justification, if satisfied, would SAVE a federal law that purported to REGULATE an Aboriginal or treaty right....but not a federal law that purported to extinguish the right
(d) Application to Provincial Laws
o What effect does s.35 have on provincial laws?
R v Badger [1996]
“Provincial law was capable of infringing a treaty right, provided that the law could satisfy the Sparrow Test of Justification”
o HOWEVER, unsatisfactory because of s.88, where a provincial law could impair an aboriginal right
(e) Duty to consult aboriginal people
o S.35 = gives constitutional protection to special relationships between the Crown and the Aboriginal People
Haida Nation v BC (2004) – SCC held that s.35 obliged the Crown (federal and provincial) to consult aboriginal peoples when their land would be affected (cutting of trees). -The duty to consult and accommodate was established. S.35 obliged the Crown to consult within the Hadia people and accommodate their concerns.
o Held: In NOT doing so, the Crown breached s.35. However, the duty to consult does NOT extend to a private party like Weyerhaeuser.
o Obligations are ONLY on the Crow
o Duty to consult extends to the Crown in the right of the federal government of Canada
o The Crown has the responsibility for eh aboriginal rights and affairs to match the federal legislation of s.91(24).
o In Haida, it was the PROVINCIAL Crown land that was the subject of the aboriginal claim. So the court held that PUBLIC LANDS OF THE PROVINCE WERE SUBJECT TO ABORIGINAL INTERESTS. The duty to consult extended to the Crown’s right of the province
o s.35(1) – declares that the federal and provincial governments “are committed to the principle” that, before any amendment is made to s.91(24) or to s.35 or to s.25, a constitutional conference will be convened to which representative of the aboriginal peoples will be invited to participate.
o Through s.35(1), the aboriginal peoples have gained entry to the constitutional amendment process.
SECTION 25
o s.25 – part of the Charter, but it does not create any new rights. It is an interpretative provision, included to make clear that the Charter is not to be construed as derogating from “any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada”
o In the absence of s.25, it would perhaps have been arguable that rights attaching to groups defined by race were invalidated by s.15 (equality).
Corbiere v Canada (1999) – SCC struck down the residence requirement (in order to vote, an Indian must live on the reserve) under s.15 on the basis that it discriminated against those Indian band members who lived off the band’s reserve.
o s.35 affords Constitutional protection from legislative impairment for the rights it covers. Therefore, it leaves s.25 with little work to do.
o But as Corbiere suggested: “The class of rights saved by s.25 is probably wider than the class of rights guarantee by s.35 because s.25 is “other” rights of freedoms (protected from the challenge of s.15)...
S. 25 is NOT qualified by the word “existing”...”
SECTTION 35.1 CONSTITUION
o Aboriginal people fear that their constitutional protection is still vulnerable, even within s.91(24), s.25, and s.35.
o Therefore, s.35.1 was added
o S.35.1 = the federal and provincial government are committed to do the principle that, before an amendment is made to s.91(24), or s.35 or s.25, a constitutional conference will take place with representatives of the aboriginal people
Interpreting the Charter OF Rights and Freedoms
HISTORY OF CHARTER
o Part of the Constitution of Canada and cam be altered only by constitutional amendment
PROTECTION OF CIVIL LIBERTIES
o The Charter will NEVER become the main safeguard of civil liberties in Canada.
o The main safeguards will continue to be the democratic character of Canadian political institutions, the independence of the judiciary and the legal tradition of respect for civil liberties
ENHANSMENT OF NATIONAL UNITY
o Charter issues do NOT call in question the legitimacy of Canada as a national political assumption that on issues of human rights, it is appropriate to have a single Canadian policy.
o Thus, the Charter is a UNIFYING INSTRUMENT.
EXPANSION OF JUDICIAL REVIEW
(a) New Grounds of Review
o The major effect of the Charter has been an expansion of judicial review.
o Before 1982, JR was confined to federalism grounds; it is NOW subject to Charter grounds.
(b) Vagueness of Concepts
o Most Charter rights are not very specific, so the meaning of these must be determined by the courts.
o Therefore, the SCC has willingly embraced the new powers conferred on it by this vague language and the court has interpreted “fundamental justice” (s.7) as a substantive concept, and used it to strike down a range of criminal laws, as well as restrictions on abortion.
o Judicial activism since 1982 has been described as “the Charter review”
o But, JR on Charter grounds rarely defeats a desired legislative objective.
i.e. After a law is struck down, the mechanisms of ss.1 and 33 typically leave room for the law to be replaced with another version that still carried out the legislative objective, and most of the time, a replacement law is enacted.
(c) Role of s.1
o There must be a compromise between conflicting values.
o But when appeals have been exhausted, it is the final decision of the court that prevails over the judgement of the government and legislature that enacted the law.
o The courts will have to decide whether the Parliament or Legislature, in enacting an abridgement of a civil liberty, has drawn the line in the “right” place.
(d) Role of s.33
o Once this declaration has been enacted, the law that is protects will not be touched by the overridden provision of the Charter
o Therefore, NO OVERRIDE IS POSSIBLE WITH: s.2; ss.7 to 14; s.15; ss. 3-5; s.6; ss.16 to 23; or s.28.
DIALOGUE WITH LEGISLATIVE BRANCH
(a) The Idea of Dialogue
(b) Second Look Cases
R v Mills (1999)
o PRINCIPLE: Example of dialogue.
o Issue: issue was the validity of a 1997 statutory regime for the disclosure to the accused of confidential records in sexual assault cases. The SCC had spoken on the issue two years earlier in O’Connor (1995)
o SCC Held: SCC upheld the 1997 statute not because of s.1, but the court invoked the concept of dialogue as a reason for deferring to Parliament’s judgment. The statute should be upheld as providing sufficient protection for the s.7 right.
o MCLACHLIN and IACOBUCCI à said that O’Connor (previous case in sequel) was “not necessarily the last word on the subject” and that “the law develops through a dialogue between courts and legislatures.
R v Hall [2002]
o Received a second attempt by Parliament to define the grounds for denying bail to an accused person in custody.
o Held: the quotes phrase from Morales [1992] was too vague to satisfy s.11(e) of Charter, which prohibited the denial of bail.
o After this decision, Parliament replaced the invalid public-interest ground with a new provision that authorized a new denial of bail
But:
Sauve v Canada (2002) –
o reviewed a second attempt by Parliament to impose voting disqualification on prisoners.
o Held: The court struck down a provision in the Canada Elections Act first on the basis that the provision disqualified all persons serving prison sentences from voting (this violated s.3, right to vote). Then struck down a provision disqualifying prisoners serving a sentence of two years or more.
o Therefore,Neither were upheld under s.1.
o Parliament and courts dialogue did not meet.
However:
Canada v JTI-Macdonald Corp [2007]
o Court reviewed a second attempt by Parliament to ban the advertising to tobacco products.
o The first Act had been struck down by the court in the RJR case as a breach of freedom of expression that was too sweeping to satisfy the minimum –impairment branch of s.1 justification.
o The second Act took up suggestions from RJR
o Held: that the changes to the original Act led the court to hold that the minimum-impairment branch of s.1 justification was now satisfied
(c) Remedial Discretion
o Concept of dialogue has also affected the reasoning and results of constitutional cases in the SCC’s willingness to suspect a declaration of invalidity after a finding that is unconstitutional.
o The rationale is: where the Court has found a law to be unconstitutional, the Court would prefer the legislature to design the appropriate remedy
o CHOUDHY and ROACH à “the delayed declaration of invalidity has evolved beyond its origins as an emergency measure and emerged...as a powerful dialogue device that allows courts to remand complex issues to legislative institutions”
o This dialogue rationale is usually unacknowledged by the Courts, but it was articulated in Corbiere v Canada [1999]
(d) Dialogue with Government
o Legislative reaction to a SCC decision = “dialogue” (even though the two never actually talk to each other)
o The court simply issues its judgements and the governments take whatever action they believe without infringing the Charter
POLITICAL QUESTIONS
o “All constitutional interpretations have political consequences”
o There is no political questions doctrine in Canada.
o In Operation Dismantle as per WILSON à “there is no doctrine of political questions in Canadian constitutional law. If a case raised the question whether executive or legislative action violated the Constitution, then the question had to be answered by the Court, regardless of the political charter of the controversy”.
Re Canada Assistance Plan (1991)
o Issue: Whether Parliament could place a 5% cap on the growth of its payments to the provinces under open-ended cost-sharing agreements was a political question when the policy was announced in the federal budget.
Fed’s argument: The issue is purely political, not for the courts.
o SCC Held: It became a legal question determinable by the courts and held there were no prohibitions in Canada’s constitutional law that would preclude the proposed legislation.
o Thus, no questions could be more “political” than the questions whether the province of Quebec could secede unilaterally from Canada. And yet, the question is also one of constitutional law, requiring a consideration of how the Constitution of Canada would govern the succession of a province.
Succession Reference [1998]
o SCC held: this question was a question that should be answered on a reference. Under the Constitution of Canada, a succession could be accomplished ONLY in compliance with the amending procedures of the Constitution, and those procedures precluded a unilateral succession by a province.
CHARACTERIZATION OF LAW
(a) Comparison with federalism review
o REVIEW:
o 2 stage process of judicial review of legislation under the Charter of Rights:
1) To determine whether the challenged law abridges (omits) a Charter right. If not, then....
2) Determine whether the law can be justified under s.1
o In stage one, there are 2 related issues that have to be resolved in every case:
1) The characterization of the challenged law
(examination of the purpose or effect of challenged law in order to determine whether it limits a Charter right)
2) The meaning of the asserted right
(an interpretation of the language of the Charter in order to determine whether it has been abridged by the challenged law)
o The characterization of laws for the purpose of Charter review reflects a similarity and a difference between Charter review and federalism review.
o Federalism – The courts attempt to ascertain the “matter” or “pith and substance” of a challenged law; then they decide whether that matter comes within one of the classes of subjects.
i.e. Lambe – provincial law with purpose of levying a direct tax on a bank was held valid notwithstanding that banking is a federal matter.
o This rule is the reverse of the federalism rule: that tolerates effects on matters outside the jurisdiction of the enacting legislative body so long as the purpose (matter or pith and substance) of the law is within the jurisdiction of the enacting body.
(b) Purpose or effect
o A law will offend the Charter if either its purpose or its effect is to abridge a Charter right.
R v Big M Drug Mart (1985) – SCC held the federal Lord’s Day Act abridged the guarantee of freedom of religion in s.2(a). The history of the Act established that its purpose was the religious one of compelling the observance of the Christian Sabbath. That purpose was an abridgement of freedom of religion, which invalidated the legislation. Legislation with an invalid purpose cannot be justified under s.1.
R v Edwards Books and Art (1986) – SCC held that the history established that the purpose of the Sunday-closing law was the secular one of prescribing a uniform pause day for retail workers. Therefore, the law passed the purpose test. However, the court went on to consider the effect of the law, and held that the effect of the law was to impose a burden on those retailers whose religious beliefs required them to abstain from work on a day other than Sunday. That effect was an abridgement of freedom of religion. Therefore, this Sunday-closing law also abridged the Charter right. However, the court relied on the benign purpose of the law to uphold it under s.1.
o Therefore, while either PURPOSE or EFFECT can invalidate legislation, Canadian legislative bodies rarely enact laws that have the PURPOSE of abridging a Charter right!
(c) Trivial effects
R v Jones (1986)
o PRINCIPLE: If effect of a law on a Charter right is trivial, there is no breach.
o Facts: The accused was charged with a breach of Alberta’s School Act, because he was educating his children in the basement of the fundamentalist church of which he was pastor. He did not obtain approval for his operation. He refused to apply for approval because he claimed that it was contrary to this religion to request the State for permission to do what was God’s will.
o SCC Held: The Act did not violate freedom of religion. Where the effect of a law on a Charter right was “trivial on insubstantial”, there was no breach of the Charter, and that was the case here.
(d) Severance
o The Lord’s Day Act was the only law to fail the purpose test in the SCC (Big M Drug Mart) because of its inadmissible religious purpose.
o in other cases where there has been a holding of unconstitutionality, and infected only one or a few provisions of the challenged statute; those provisions were “severed” from the rest of the state enabling the rest of the statute to survive.
(e) Reading down
o Where the language of a statute will bear two interpretations, one of which would abridge a Charter right, and one of which would not, the Charter can be applied simply by selecting the interpretation that does not abridge the Charter right.
INTERPRETATION OF CHARTER
(a) Progressive interpretation
Edwards v AG Can (1930) – Lord Sankey: “a living tree capable of growth and expansion within its natural limits”.
o The requirement of flexibility or progressive interpretation obviously applies to the Charter no less than other constitutional provisions
(b) Generous Interpretation
Edwards v AG Can (1930)
LORD SANKEY à living tree metaphor means that a constitution should receive a generous interpretation. The provisions of the Constitution should be given “a large and liberal interpretation”
o A generous interpretation of the Charter CANNOT be justified as increasing the powers of the legislative bodies; it will have the effect of reducing their powers.
o In R v Oakes – the court decided to prescribe a single standard of s.1 justification for all rights, to make that standard a high one, and to case the burden of satisfying it on the government. This meant that the test of justification be a stringent one.
o This is inconsistent with the instance that the guaranteed rights be given a generous (broad) scope.
o QUESTION:
è Does it make a difference whether the Court gives a WIDE interpretation to rights and relaxed the standard of justification under s.1? Or
è gives a NARROW interpretation to rights and maintains the stringent standard of justification called for by Oakes?
o ANSWER
è Most judges will be concerned to stem the wasteful flood of litigation. This can be accomplished only by restricting or NARROWING the scope of the Charter rights (Oakes test of justification)
(c) Purposive Interpretation
o A “purposive” interpretation of the Charter rights is an attempt to ascertain the purpose of each Charter right, and then to interpret the right so as to include activity that comes within the purpose and exclude activity that does not.
o The court assumes that this is a “general” approach
o The effect of the purposive approach – going to NARROW the scope of the right
o HOGG à this approach seems to work perfectly with the stringent standard of justification under s.1.
o Thus, once a right has been confined to its purpose, it seems obvious that a government ought to have to satisfy a stringent standard of justification to uphold legislation limiting the right.
(d) Process as Purpose
o The usefulness of a purposive interpretation invites the question whether the Charter has a single over-arching purpose which would illuminate each provision?
o A process-based theory of judicial review offers 2 important advantages:
(1) It supplies a helpful context for interpreting particular guarantees (i.e. freedom of expression)
(2) It offers a solution to the problem of legitimacy of judicial review
o HOGG à does not think this process provides a satisfactory general or comprehensive theory of judicial review. “There is no escaping the fact that judicial review enables the judges to strike down those products of the democratic process that fail to respect those aspects of individual autonomy that are guaranteed by the Charter!”
(e) Hierarchy of rights
o s.33 – override of some rights by the inclusion of a notwithstanding clause in the overriding statute.
o The rights that CAN BE overridden = s.2, ss.7-14, s.15 (“common rights”)
o The rights that CANNOT be overridden = ss.3-5, s.6, ss. 16-23, s.28 (“privileged rights”)
o Therefore, s.33 creates these 2-tiers of rights
o s.28 (sexual equality) – may be exempt from the limitation power of s.1 as well as the override power of s.33. That places s.28 at the top of the hierarchy.
o s.35 (Aboriginal and Treaty Rights) – are not subject to s.1 nor s.33 because s.35 is outside the Charter.
o However, this also means that s.24, which provides a remedy for breach of Charter rights, does NOT apply to s.35.
(f) Conflict between rights
o The above hierarchy of rights reflects differences in the vulnerability of the right to legislative abridgement.
o BUT it does NOT imply that the “privileged rights” must take priority over the “common rights” when they come into conflict.
o The Charter makes NO provision for other kinds of conflicts between rights.
B.C Government Employees’ Union v British Columbia [1988]
o Issue: Chief justice of BC had issued an injunction against a union to prohibit its members from picketing the courthouses. Union applied to have this set aside because of freedom of expression.
o SCC Held: upheld the injunction because it was a limit on freedom of expression, but justified under s.1 as a reasonable and demonstrably justified limit.
o But MCINTYRE J à the right of access to the court was “Charter-protected” and therefore, the injunction could NOT be a breach of freedom of expression. Therefore, he assumed that the freedom of expression should give way to the more specific right of access to the courts.
R v Keegstra (1990)
o Facts: A person accused of wilfully promoting hatred against a racial group (Jews), which is the hate propaganda offence of the Criminal Code, attacked the offence as an abridgement of freedom of expression.
o Defending Code: By protecting racial groups from hateful messages, if furthered the values of racial equality (s.15) and multiculturalism (s.27).
o SCC Held: The provision did abridge freedom of expression, but the law was justified under s.1.
o In both cases, the conflict between rights was resolved through s.1.
o Only MCINTYRE took the position that the scope of a right (freedom of expression) should be NARROWED to accommodate the exercise of another right (access to courts).
o This is called “Mutual Modification”: where conflicting heads of legislative power have been accommodated in federalism cases.
o BUT THE COURT HAS GENERALLY AVOIDED ENGAGING IN “MUTUAL MODIFICATION” (or definitional balancing) IN ITS CHARTER JURISPRUDENCE...
o Thus, when other rights are invoked in support of a challenged law, the conflict is to be resolved by application of the justificatory principles of s.1. In this way, the court does NOT assign priorities to rights, except in the context of a specific law in a particular case.
o In other words, the court prefers “ad hoc balancing” to “definitional balancing” (or “mutual modification”) when resolving conflicts between rights.
o The Canadian court has felt free to give Charter rights a broad interpretation, knowing that s.1 will allow laws imposing reasonable limits on the rights to be upheld.
See:
R v O’Connor [1995]
o Principle: to NARROW the scope of the one Charter right to accommodate the exercise of another.
o Issue: where the court had to decide whether and how an accused in a sexual assault case should be able to gain access to the counselling and medical records of the complainants. The court had to establish for the FIRST TIME, the common law principles which would strike the proper balance between the accused’s right (s.7), to full answer and defence, and the witness’s rights under s.7 and s.8, to a reasonable expectation of privacy.
o SCC Held: although employed the language of s.1, the effect of the decision is to NARROW the scope of the one Charter right to accommodate the exercise of another.
o Therefore, this establishes that definitional balancing (or mutual modification) DOES have a place in Charter jurisprudence, although one that only arises in special circumstances.
SOURCES OF INTERPRETATION
(a) Pre-Charter Cases
o Classification for Charter purposes does NOT disregard the incidental effects of a law.
o If a law has the effect of abridging (omitting) a Charter right, then the Charter is implicated and, if s.1 does NOT supply justification, the law WILL BE INVALID.
(b) American Cases
o One reason for the broader interpretation of the rights in Canada is the presence of s.1.
o The Canadian courts regard s.1 as an important difference between the USA constitution and the Canadian constitution; where one suggests a BROADER scope for the guaranteed rights in Canada.
(c) International Sources
o Canada bound by the International Covenant on Civil and Political Rights, which is only binding at international law.
o International Covenant on Civil and Political Rights includes an optional protocol to individuals...may petition to the Human Rights Committee of the United Nations
o Human Rights Committee of the United Nation decisions are relevant to the interpretation of the Charter
o Canada is a member or the Organization of American States (OAS) and Canadians may petition the Inter-American Commission on Human Rights if they claim a breach by Canada of their rights under the Declaration.
o Even customary (non-treaty) international law can occasionally served as an aid to interpretation of the Charter
R v Hape [2007]
o Issue: whether the Charter applied to the investigations of Canadian police in a foreign county (Turks and Caicos Islands)
o SCC Held: s.32 should be interpreted into conformity with application principles of customary international law, of which the most relevant principle was that of “respect for the sovereignty of foreign states”.
PRIORITY BETWEEN FEDERAL AND CHARTER GROUNDS
o When a law is challenged on the federal and Carter grounds, it is the FEDERAL GROUND THAT IS MORE FUNDAMENTAL AND OUGHT TO TAKE PRIORITY OVER THE CHARTER RIGHT
COMMENCEMENT OF CHARTER
o s.58 Constitution = an Act is to come into force on the day to be fixed by proclamation
o A statute/regulation/by-law which was enacted before April 17, 1982, and which is inconsistent with the Charter, will be rendered “of no force or effect” by the supremacy clause of the constitution
Mack v Canada (2002) – Since the law (Chinese head tax) was repealed in 1923, and not in force at the commencement of the Charter, those whose rights were denied by the laws and had no remedy under the Charter.
o Thus, no remedy under s.24(1) would be available in respect of action taken before April 17, 1982, because the remedy is available only to anyone whose rights or freedoms, have been “as guaranteed by this Charter”, have been infringed or denied.
o Action of an executive or administrative kind, such as search, seizure, arrest or detention, which was taken before April 17, 1982, cannot be a violation of the Charter, because the Charter was not in force at the time of the action.
o But some provisions of the Charter have been interpreted in a way that event occurring before April 17, 1982 are relevant to their application, despite the exclusively prospective operation of the Charter.
i.e. using s.13; using s.11(b); using s.12
o Another way is where they create a status or a condition that constitutes after April 17, 1982 and that leads to a breach of Charter. (Benner v Canada [1997])
UNDECLARED RIGHTS
o s.26 = makes it clear that the Charter is NOT to be construed as taking away any existing rights or freedoms.
o Rights and freedoms are protected by the common law or by statute, and these will continue to exist notwithstanding the Charter.
Application of the Charter of Rights and Freedoms
BENEFIT OF RIGHTS
(a) The Issue
o Who is entitled to the benefit of the rights guaranteed by the Charter?
(b) Everyone, Anyone, Any Person
o s.2,7,8,9,10,12 and 17 of Charter states “everyone has the right”
o ss.11 and 19 of Charter states “any person”
o s.20 of Charter states “any member of the public”
o s.24 of Charter states “anyone”
o Some of the rights, although guaranteed to “everyone” or “any person”, are by their very nature NOT available to a corporation.
i.e. the right to freedom of conscience and religion in s.2(a)
i.e. the right to fundamental justice under s.7 and s.15 (“every individual)
i.e. the right to be arbitrarily detained or imprisoned under s.9
i.e. the right to reasonable bail under s.11(e)
i.e. the right to testify in s.11(c)
i.e. the right against self-incrimination in s.13
i.e. the right of a witness to an interpreter in s.14
o But how about s.24 which is available to “anyone”? Doesn’t “anyone” include a corporation?
o YES = and can therefore be used by a corporation to enforce a right that does not apply to a corporation.
o Although it is wrong to assume that a corporation can NEVER enforce a right that does not apply to a corporation (see Big M Drug Mart – where the corporation had standing to make this argument, despite the fact that s.2(1) did not apply to a corporation)
o A foetus is NOT a legal person and is not entitled to a right to life under s.7, or any other right.
(c) Individual
o s.15 = confers equality rights on “every individual”
o This means – natural persons ONLY.
o HOGG à it can be argued that the French version of s.15 uses the word “personne” in the place of individual. This can suggest that ARTIFICIAL persons are also covered (i.e. corporations)
o Big M Drug Mart PRINCIPLE: Even if s.15 does not extend to corporations, corporations will still be able to rely on s.15 as a defence to a criminal charge laid under a law that is invalid by virtue of unconstitutional discrimination against individuals
o The word “individual” does NOT include a foetus. The word “individual” does NOT include the estate of a deceased individual because s.15 = rights to dies with the individual”
(d) Citizen
o s.7 = “everyone”. “every human being who is physically present in Canada and by virtue of such presence amendable to Canadian law”
o So, everyone present on Canadian soil
o There is no independent requirement of a connection with Canada in order to receive the benefit of a Charter right
o Singh (1985) – anyone who entered Canada, however illegal, was instantly entitled to assert s.7 rights, which apply to “everyone”.
o Being a Canadian citizen is NOT necessary to invoke most rights.
i.e. “Everyone” in s.7 includes “every human being who is physically present in Canada”.
o Citizenship is required for voting rights (s.3), mobility rights (s.6) and minority language educational rights (s.23).
o What about corporations?
o HOGG à “the term ‘citizen’ excludes corporations”
o It is obvious that a corporation cannot possess a voting right (s.3) or the right to educate its children in a minority language (s.23), BUT it is not impossible for mobility rights (s.6) to be extended to corporations.
o But this would cause a radical change in Canada’s constitutional law...
(e) Permanent Resident
o s.6(2) = mobility rights. “every person who has the status of a permanent resident of Canada”
o This belongs to persons who have “the status” of a permanent resident
o This does NOT include a corporation
BURDEN OF RIGHTS
(a) Both level of government
o Both levels of government are bound by the Charter
o The Canadian Bill of Rights applies only to the federal government.
(b) Parliament or Legislature
o The references in s.32 to the Parliament and a Legislature makes it clear that the Charter operates as a limitation on the powers of those legislative bodies.
o So, any statute enacted by either of these, which is inconsistent with the Charter, will be OUTSIDE the power (ultra vires) the enacting body and therefore, INVALID
New Brunswick Broadcasting Co. v Nova Scotia (1993)
o Issue: whether the Nova Scotia legislative assembly, which had prohibited the televising of its proceedings, was bound by the Charter.
o SCC Held: The Charter applied to the legislative assembly. The power of the assembly “to exclude strangers” (including tv media) from its deliberations, was immune from Charter review. This was premised on the theory that Parliamentary privileges that are needed to secure the orderly functioning of a legislative assembly, and which include the power to exclude strangers, are part of the “Constitution of Canada”.
o If this is so, then the Charter DID NOT apply, because “one part of the Constitution cannot be abrogated or diminished by another”
o (privilege. Parliamentary privilege also includes freedom of speech in debate, including immunity from legal proceedings for things said in debate)
o Court also states: The word “legislature” in s.32 should be interpreted as making the Charter applicable to a legislative assembly. The same conclusion would apply to the word “Parliament” in s.32, making the charter applicable to actions of the Senate or the House of Commons as well as to those of Parliament as a whole
o But HOGG à “the decision that the legislative assembly of Nova Scotia came within the word “legislature” in s.32 of the Charter entails the legal conclusion that ALL the assembly’s powers, including those conferred by the Constitution, were subject to the Charter. It is surely unacceptable that every exercise of parliamentary privilege powers by a legislative assembly should be exempt from Charter review...This is not to say that a legislative assembly may never act in derogation of a guaranteed right; it is only to say that a rule adopted by a legislative assembly in derogation of a Charter right would HAVE TO be justified as a reasonable limit under s.1”
To what extent is legislative silence subject to Charter review?:
Vriend v Alberta (1998)
o PRINCIPLE: No positive duty on Legislature to act unless they have already created a statute which is silent on the matter in question.
o Facts: Plaintiff argued that he had been dismissed because he was homosexual and challenged the Alberta human rights statute under s.15.
o P’s argument: the statute failed to prohibit discrimination in employment on the ground of sexual orientation
o Alberta’s argument: the Legislature had chosen not to deal with the issue and the Charter did not apply to a failure by the Legislature to Act.
o SCC Held: this was a denial of equal benefit of the law, and upheld the Charter challenge.
o BUT, having enacted a relatively comprehensive statute providing redress for acts of discrimination, the Legislature subjected itself to the Charter, including the obligation to cover everyone who, under s.15, had a constitutional right to be included.
o NOTE:
è If NO HUMAN RIGHTS statute existed, then the Charter challenge would have failed because there would be no statute or other governmental act to which the Charter would apply.
o To what extend is a legislative exclusion subject to Charter review?:
Dunmore v Ontario (2001)
o PRINCIPLE: Legislature is under a duty to act/extend protections once they have already created legislation.
o Issue: a challenge was brought to the exclusion of agricultural workers from Ontario’s labour relations statute.
o SCC Held: Rejected the equality guarantee of s.15 as a basis for the challenge because employment status is not an analogous ground that is protected under s.15.
o BASTARCHE Jà This was not a case where “no legislation had been enacted in the first place”. Having gone this far, the Legislature was under a positive duty to extend the protections of labour relations law to those employee groups who could not otherwise successfully organize. The exclusion of the agricultural workers was a breach of s.2(d) (freedom of association) and the provision excluding them was severed from the statute.
(c) Statutory authority
o Because s.32 makes the Charter applicable to the federal Parliament and the provincial Legislatures, the Parliament and Legislatures have lost the power to enact laws that are inconsistent with the Charter.
o Thus, the limitations on statutory authority which are imposed by the Charter, will flow down the chain of statutory authority and apply to regulations, by-laws, orders, decisions and all other action which depends for its validity on statutory authority.
o The distinctive characteristics of action taken under statutory authority is that: it involves a POWER OF COMPULSION that is not possessed by a private individual or an organization. This POWER OF COMPULSION MUST CONFORM TO THE CHARTER.
o Where Parliament or a Legislature has delegated a power of compulsion to a body or person, then the Charter will apply to the delegate.
i.e. Ramsden (1993) – Charter applies to a municipal by-law, made under statutory authority, that purported to prohibit postering on municipal public property.
i.e. Slaight Communcis v Davidson (1989) – Charter applied to an arbitrator awarding a remedy for an unjust dismissal; the arbitrator ordered the employer to provide the dismissed employee with a letter of reference. But had the arbitrator’s authority simply come from the consent of the parties, no exercise of statutory power would have been involved, and the Charter would not have applied.
i.e. Black v Law Society of Alberta (1989) – Charter applied to the rules of the Law Society of Alberta.
i.e. R v Lerke [1986] – Charter applies to a private person making a citizens’ arrest under statutory authority
o Therefore, these examples illustrate that the bodies or persons possessing statutory authority are often independent of the federal government or the provincial government.
o The Charter applies to the exercise of statutory authority regardless of whether the actor is part of the government or is controlled by the government. It is the exertion of a “power of compulsion” granted by statute that causes the Charter to apply
o Outside the sphere of government, the Charter will apply ONLY to persons or bodies exercising statutory authority!
o HOGG à “in my view, it is the “power of compulsion” that makes the Charter applicable to bodies exercising statutory authority”
Stoffman v Vancouver General Hospital (1990)
o PRINCIPLE: hospital NOT subject to Charter because the hospital exercised NO “powers of compulsion” in providing medical services.
o SCC Held: the Charter did NOT apply to the mandatory retirement policy of a hospital that required its doctors to give up their admitting privileges when they reached the age of 65.
o Issue: was the hospital bound by the Charter?
o Reasoning: Although established and empowered by statute, and undeniably performing a public service, the hospital did not exercise any powers of compulsion in providing medical services (and it was NOT controlled by the government). Therefore, the hospital was NOT bound by the Charter.
Compare with:
Eldridge v BC (1997)
o PRINCIPLE: hospital WAS subject to Charter because it was implementing a specific government policy.
o Facts: The hospital did not provide sign-language interpretation for deaf persons seeking medical services, an omission that would be a breach of s.15 (equality guarantee) if it were made by an entity that was bound by the Charter.
o Issue: was the hospital bound by the Charter?
o SCC Held: SCC pointed to BC’s Hospital Services Act, which funded the provision of hospital services, and held that the hospital was “implementing a specific government policy or programs” (which was not the case in Stoffman).
o HOGG à Eldridge is inconsistent with Stoffman, and the absence of statutory compulsion should have led to the conclusion that the Charter did NOT apply in Eldridge.
Re Bhindi (1986)
o PRINCIPLE: collective agreements (union contracts) are NOT subject to the Charter, but seen as a private contract.
o Issue: whether a “closed-shop” (a workplace where the employer has agreed to hire only members of a union) provision in a collective agreement violated the guarantee of freedom of association in the Charter.
o BC CA Held: Charter did NOT apply because the collective agreement was between a private employer and the union of its employees. Thus, the collective agreement was a private contract to which the Charter does not apply.
o HOGG à a collective agreement that forces unwilling employees to join the union could not be effective through the common law of contract. In all jurisdictions, collective agreements are authorized by statute so that their terms and conditions will be binding on all employees in the bargaining unit, including those who do not agree with the terms and conditions. The terms and conditions of a collective agreement thus have a coercive force that goes beyond what could be achieve in a common a law contract. Therefore, the terms and conditions of a collective agreement SHOULD be subject to the Charter.
o Thus, the Charter SHOULD apply to a collective agreement since it is established by statute and maintains coercive elements on the employees.
Confirmed in:
Lavigne v OPSEU (1991)
o PRINCIPLE: collective agreements (union contracts) are subject to the Charter IF the employer is the government of an agent of the government.
o Issue: whether an “agency-shop” (a workplace where all employees are not required to join the union, but are required to pay dues) provision in a collective agreement violated the guarantee of freedom of expression and association.
o SCC Held: Charter applied because the employer was an agent of the provincial government, which made the collective agreement a governmental act.
o BUT the court seemed unanimous that, if the employer had NOT been part of government, then the collective agreement would be a private contract to which the Charter would NOT have applied.
o HOGG à “Without statutory authority, an obligation to pay union dues could be created only by the agreement of the employee. In my opinion, it is clear that dissident (rebellious) employee was being subjected to a statutory power of compulsion as surely as if the statute had directly ordered him to pay the dues” .....”It was not necessary for the Court to rule on the status of collective agreements in the private sector. Because the government was a party to the collective agreement, the Charter applied”
o HOGG à “I hope when the issues has to be decided on statutory authority, the Court will reconsider its approval of Bhindi and its comments on statutory authority. As the cases presently stand, a Legislature that is powerless to abridge freedom of association (or any other Charter right) has the mysterious capacity to grant to employers and unions (or anyone else outside of government) the power to abridge the right. THAT CANNOT BE GOOD LAW”
(d) Amending Procedures
o s.32 of Charter makes it clear that the Charter is binding on the process of constitutional amendment
(e) Government
o The application of the Charter to all action taken under statutory authority follows simply from the references in s.32 to “Parliament” and “Legislatures”
o The reference to “government” in s.32 will make the Charter applicable to governmental action taken under both kinds of common powers.
i.e. Operation Dismantle v The Queen (1985) – Charter applies to a cabinet decision taken under the prerogative to allow the US to test missiles in Canada.
i.e. Douglas/Kwantlen Faculty v Douglas College (1990) – a community college is subject to the Charter
because it was subject to a substantial degree of governmental control.
Compare with:
i.e. Mckinney v U of Guelph (1990) – a University was not subject to the Charter because it was sufficiently independent of government.
i.e. Stoffman (1990) – A hospital was not subject to the Charter because it was sufficiently independent of government.
-Thus, it was irrelevant that the university and hospital were each performing a “public service”, as long as they were performing it independently of government.
o The control test looks to an instrumental or structural link with government to determine whether a public body is covered by the Charter (to help define the Crown and Crown agents).
o NOTE:
è If the body alleged to have breached the Charter was relying on a statutory power, the Charter will apply by virtue of that fact, and regardless of whether or not he body is within the term “government”
(f) Courts
o Does the Charter apply to courts? SCC has held yes and no.
The “no” answer came in:
Dolphin Delivery (1986)
o PRINCIPLE: Charter does NOT apply to the courts.
o Issue: whether Dolphin Delivery, a courier company, could obtain an injunction to restrain a union from picketing its premises. The union represented the employees of another courier company against whom it was on strike. Since Dolphin was not part of that dispute, the picketing on its premises would be “secondary picketing”. BC court held the picketing would constitute the common law tort of inducing a breach of contract, and they granted an injunction to prevent the picketing.
o Union’s argument: the injunction should be set aside, because it abridge the Charter guarantee of freedom of expression.
o SCC Held: Rejected the argument on the ground that the Charter had no application to the order of the court.
o MCLINTRYRE J à held that the word “government” is s.32 meant only the executive branch of government, and did not include the judicial branch.
o Reasoning: A court order was NOT governmental action, and therefore the injunction issued by the BC court was NOT subject to the Charter.
o Hogg’s view of ratio to uphold the decision: a court order when issued as a resolution of (1) between two private parties, and (2) the order is based upon the common law, is NOT governmental action to which the Charter applies. If not, then the effect would be applying the Charter to two private parties.
The “yes” answer came in:
R v Rahey (1987)
o PRINICIPLE: Charter does apply to the courts
o Facts: the trial judge had adjourned the application 19 times and taken 11 months to reach his decision.
o Issue: whether a criminal court had denied to a defendant the s.11(b) right to be tried within a reasonable time
o SCC Held: The delay was a breach of s.11(b). Thus, the action that was held to be a breach of the Charter was the action of a court.
The “yes” answer was confirmed in:
BC Government Employees’ Union (BCGEU) v BC (1988)
o Facts: A union, on lawful strike, formed picket lines outside the courts in BC, where some of the union members worked. The Chief Justice of BC, discovering this on his way to work, on his own motion and without notice to the union, issued an injunction prohibiting the picketing of the courts.
o Union’s argument: applied to have it set aside on the ground that it abridged the s.2(b) right to freedom of expression.
o SCC Held: The injunction did limit s.2(b), but was justified under s.1. The court held that a court order was subject to Charter review.
o The Rahey and BCGEU decisions have, in effect, repudiated MCINTYRE J’s ruling in Dolphin Delivery that the word “government” in s.32 excludes the courts.
o Many of the Charter rights contemplate that the courts are bound by the Charter
i.e. s.11 entail action by courts: holding a trial within a reasonable time (s.11(b)), etc.
o These provisions supply a context in which it is reasonable to interpret the word “government” in s.32 as including the judicial branch.
o Does making a court order, supported as it is by the “full panoply of state power”, supply the requisite element of governmental action???
Dolphin Delivery – a court order, when issued as a resolution of a dispute between PRIVATE PARTIES, and when based on COMMON LAW, is not a governmental action, and so, the Charter does not apply.
Reason = the effect of applying the Charter to the relationship of private parties is what s.32 intends to exclude from Charter coverage
o However, where a court order is:
issued on the court’s own motion for a PUBLIC PURPOSE (BCGEU),
or in a proceeding to which the GOVERNMENT IS A PARTY (Rahey),
or in a purely PRIVATE PROCEEDING that is governed by STATUTE LAW,
THEN the Charter will apply to the court order.
(g) Common law
o Does the Charter apply to the common law?
Dolphin Delivery – No, Charter does NOT apply to the common law, or at least those rules of common law that regulate relationships between PRIVATE PARTIES
o “where private party A sues private party B relying on the common law, and where no act of government is relied upon to support the action, the Charter will NOT apply”.
o Thus, if the applicable law is a rule of the common law, the Charter does NOT apply.
o If, however, the law is a rule of statute law, the Charter DOES apply: the statute supplies the needed element of governmental action (statutory interpretation)
o NOTE:
è Statute law allows Charter to apply because judges created the common law, not Parliament or Legislatures who are bound by the Charter (statutory interpretation)
è Thus, must distinguish between common law and statute.
o HOWEVER, the Charter DOES apply to the common law if government action is involved:
R v Golden – Charter applies when a police officer exercises a common law power to search an accused.
Dagenais v CBC (1994)
o PRINCIPLE: Charter does not apply if (1) the dispute is between two private parties, and (2) it is based on the common law.
o Issue: Charter challenge to an injunction (publication ban) to prohibit the CBC from broadcasting a programme. The applicants for the injunction were the Christian brothers and the respondent was the CBC.
o SCC Held: Since the legal basis for the injunction was the common law, and was a dispute between private parties (same as Dolphin), the Charter did NOT apply.
o (but note: an injunction derives from the common law)
Hill v Church of Scientology (1995)
o PRINCIPLE: Charter does not apply if (1) the dispute is between two private parties, and (2) it is based on the common law.
o Facts: A Crown attorney brought an action for defamation against the Church of Scientology and its lawyer.
o Church’s argument: the attorney was employed as an agent of the Crown and that the defamatory statements related to his official duties, thus the Charter should apply (this way they could argue freedom of expression).
o SCC Held: In the context of a defamation action, the attorney was a private party, because the action was brought, not as part of his governmental duties, but to vindicate his personal reputation. Since it was the common law that governed the cause of action, it followed that the Charter did NOT apply.
o The rule of common law that should be developed into conformity with “Charter values” means that:
Although the Charter does not apply directly to the common law, it DOES apply indirectly.
o Despite some differences in the way s.1 justification is assessed, the indirect application has the same effects as the direct application.
o Charter values are relevant to statutory interpretation only where the statute is ambiguous and reference to a Charter value would help resolve the ambiguity.
(h) Private action
o Example, if the police enlist the aid of a private individual to obtain information from a prisoner, the private informers are regarded as agents of the police, and subject to the Charter.
o The Charter applies only where there has been governmental action of some kind, that is, action by the Parliament or government of Canada or by the Legislatures or government of a province.
o The Charter regulates the relationship between the government and the private person.
o Private action is therefore EXCLUDED from the application of the Charter!
R v Buhay (2003)
o PRINCIPLE: Charter does NOT apply to private actors.
o Facts: two security guards smelled marijuana coming from a locker rented to someone. With the bus managers permission they opened the locker and found drugs. They called the police and again opened the locker and the police arrested the person.
o SCC Held: the opening of the locker by the guards was not a search within s.8 since they were private actors, not subject to government control. However, the police were subject to s.8 and since the acted without a warrant, the search and seizure was unreasonable and a breach of s.8.
o Much “public” activity is not covered by the Charter, because there is no statutory or governmental presence.
o Much “private” activity has been regulated by statute, or been joined by government, and if so, the statutory or governmental presence will make the Charter applicable.
o Therefore, when the Charter does NOT apply to “private” action, the word “private” is really a term of art, denoting a residual category from which it is necessary to subtract those cases where the existence of a statute or the
presence of government DOES make the Charter applicable
o The courts (SCC) uses a remedy of “extension” to extend the reach of a statute that the court finds to be “under-inclusive” (a statute that excludes some group that has a constitutional right to be included)
i.e. “severance” – deleting from the statute the language that excludes the group
i.e. “reading in” – inserting new language into the statute to add the excluded class
o Constitutional power and political unwillingness of government institutions to regulate PRIVATE spheres, makes it undesirable to extend the Charter to matter that are outside the governmental boundaries.
o The effect of governmental action restriction is that: there is a PRIVATE realm in which people are not obliged to subscribe to “state” values
o The boundaries of that realm are marked by absence of statutory or other governmental intervention
o The boundaries will expand or contract as the scope of governmental intervention (which is driven by democratic political forces) contracts or expands.
(i) Extraterritorial application
o Foreign governments are NOT bound by the Charter.
o Canada has entered into extradition treaties with other states under which Canada agrees to surrender to the other state, a person who has been charged with or convicted of an offence in the other state, but who has fled to Canada.
o In Canada, the application by a foreign state to extradite a fugitive is dealt with in a 2-stage process:
(1) A judge hold a hearing to determine whether the foreign state has sufficient evident of the commission by the fugitive of an extraditable offence in a foreign state
(2) Only if the extradition judge finds the evidence sufficient, the Minister of Justice decides whether to surrender the fugitive to the requesting state.
o At the second stage, extradition of a fugitive who is a Canadian citizen is a denial if the tight to remain in Canada that is guaranteed by s.6 of Charter. However, extradition is justified as reasonable limit under s.1. but still, at both stages, there is a deprivation of liberty in Canada via s.7
o What about the extradition of a fugitive who may fact the death penalty in the requesting state?
o Canada’s extradition treaty with the USA expressly provides that extradition, may be refused if the USA does NOT provide assurances that “the death penalty shall NOT be imposed, or, if imposed, shall not be exercised”
Kindler v Canada [1991]
SCC Held: No breach of the principles of fundamental justice. If extradition were denied there would be no legal basis for keeping Kindler in custody, and Canada would become a ‘safe haven’ for the most violent American criminals.
o 10 years later, the SCC had a change of heart:
United States v Burns (2001)
o Facts: US sought extradition of two fugitives who have been charged with murder in Washington and fled to BC where they were arrested.
o SCC Held: now held that it would be a breach of fundamental justice to extradite fugitives without obtaining assurances that the death penalty would NOT be imposed.
o Thus, the court chose NOT TO FOLLOW its earlier decision in Kindler.
o Reason to depart: the Court’s belief that over the last decade, the arguments against the death penalty, and wrongful convictions, had become stronger. The ‘safe haven’ argument was dismissed because there was “little indication” that the USA governments would ever fail to give assurances.
Surech v Canada [2002]
o Issue: whether it would be a breach of s.7 to deport a person from Canada if that person was likely to face torture in the country to which he was returned
o SCC Held: deportation was not materially different from extradition, and following Burns, to hold that a deportation to face torture would “usually” be a breach of the principles of fundamental justice.
o Thus, the court upheld the provision in the Act to deport non-citizens who were found to be “a danger to the security if Canada”, BUT, held that there must be a cogent evidence that the person is indeed dangerous before the Minister could constitutionally deport a person who would face torture in the country to which he was returned
R v Cook [1998] OVERRULED by:
R v Hape (2007)
o Issue: a prosecution in Canada for money laundering. For documents that had been searched for and seized by Canadian police officers in the Turks and Caicos Islands and whether various searches and seizures that yielded the evidence were made in compliance with Turks and Caicos law.
o SCC Held: Charter does NOT apply to Canadian actors acting outside of Canada, i.e. to the investigation and procedures in a crime in another country. The Charter applied only to actions taken by Canadian actors inside Canada.
o LEBEL J à took the dissenting opinion in Cook, that the Charter applied only to actions taken by Canadian actors inside Canada.
Canada v Khadr [2008]
o Issue: whether he was entitled for an order under s.24(1) of Charter compelling the Government of Canada to disclose to him the records of interviews that were conducted with him in 2003 by officials of the CSIS.
o SCC held: Khadr was entitled to disclosure of the records of the interviews that were in the possession of the government of Canada. Entitled to s.24(1) remedy of discloser of the records
o Reasoning: if everything had taken place in Canada, including the criminal process, Khadr would have been entitled by s.7 of the Charter, to the Stinchcombe right of full disclosure of all relevant material in the possession of the Crown
o Therefore, Hape did NOT apply and the Charter acquired extraterritorial effect because according to Stinchombe, it was a breach of the Charter NOT to provide disclosure to Khadr of the records.
Override of Rights (s.33)
SECTION 33
o The override power, if exercised, would remove the statute containing the express declaration from the reach of the Charter provisions referred to in the declaration without the necessity of any showing of reasonableness or demonstrable justification.
HISTORY OF S.33
Ford v Quebec (1988) – which held that a law banning the use of languages other than French in commercial signs was an infringement of the Charter right to freedom of expression.
After this decision, the Legislature re-enacted the prohibition with respect to exterior signs (while allowing bilingual interior signs), and protected the new prohibition with a notwithstanding clause, s.33.
o The declaration referred to “the provisions of s.2 and 7 to 15, which is a reference to all of the Charter rights that s.33 makes vulnerable to the override.
o SCC held: that the omnibus reference to the rights was sufficient. It was not reasonable to require a reference that was particular to the statute containing the declaration, because a legislative body “might not be in a position to judge with any degree of certainty what provisions of the Charter might be successfully invoked against various aspects of the Act in question.
RIGHTS THAT MAY BE OVERRIDDEN
o S.2 = fundamental freedoms
o S.7 to 14 = legal rights
o S.15 = equality rights
o Rights that CANNOT be overridden are:
o S.3 to 5 = democratic rights
o S.6 = mobility rights
o S.16 to 23 = language rights
o S.24 = enforcement provision
o S.28 = sexual equality clause
FIVE-YEAR LIMIT
o The override power is subject to a temporal restriction
o S.33(3) = “sunset clause”
o The purpose of the “sunset clause” is to force reconsideration by the Parliament or Legislature of each exercise of the power at five-year intervals (intervals in which elections will have been held).
SPECIFICITY OF DECLARATION
o S.33 stipulates that the Parliament and Legislatures must “expressly” declare that a statute is to operate notwithstanding a Charter right.
o Therefore:
(1) the override power must be an express declaration contemplated by s.33(1) thus becoming a “manner and form” requirement that is essential to the validity of any statute enacted in violation of a provision contained in s.2 or s.7 to 15 of Charter.
(2) the express declaration contemplated by s.33(1) must be specific as to the statute that is thereby exempted from the provisions of the Charter...must be in the statute itself.
(3) the express declaration contemplated by s.33(1) must be specific as to the Charter right which is to be
overridden
o See Ford
RETROACTIVE EFFECT
o There is considerable appeal to the idea that rights should NOT be able to be taken away retroactively.
o WEINRIB à “the rule of law requires that a person be aware of his or her constitutional rights at the time ofr taking action, and not be vulnerable to retroactive change.
o However, the rule against retroactivity will probably encourage the use of s.33.
o Since Ford, it might be expected that legislative bodies, when limiting rights, will sometimes include cautionary override clauses to insure against the risk of an adverse judicial decision on s.1 justification
JUDICIAL REVIEW
o To what extent is the exercise of the override power subject to judicial review?
o A declaration under s.33 will be held to be invalid by the courts if it fails to satisfy the various requirements of s.33
o The thesis that s.33 is subject to s.1 is difficult to sustain.
o Once a Charter provision has been overridden by an express declaration in a statute, the Charter provision has been overridden by an express declaration in a statute, the Charter provision has no application whatsoever to the statute, and therefore, there is no need for ay showing of reasonableness or justification under s.1.
o This was accepted in Ford
EVALUATION OF S.33
o In practice, s.33 will be used infrequently and only when the legislating government is persuaded that there are powerful reasons of public policy to justify its use.
o HOGG à while s.33 looks odd to non-Canadian observers, the power of override seems to be a uniquely Canadian invention which makes judicial review suspensory only! So long as the last word remains with the competent legislative body, there can be no acute or longstanding conflict between the judicial and legislative branches.
o WEILER à described s.33 as “an intrinsically sound solution to the dilemma of rights and courts”
Limitation of Rights (s.1)
INTRODUCTION
o s.1 contemplates a two stage process:
(1) The court must decide whether the challenged law has the effect of limiting one of the guaranteed rights. (this stage involves the interpretation and application of the provisions of the Charter that define the guaranteed rights)
i.e. If the challenged law does have this effect, the second stage is reached;
o The burden of proving elements of the breach of a Charter right rests on the person asserting the breach.
(2) The court must then decide whether the limit is a reasonable one that can be demonstrably justified in a free and democratic society. (this stage involves the interpretation and application of s.1 of the Charter)
o The burden of persuasion shifts to the government (or other party) seeking to support the challenged law. It is for the government to persuade the court that the challenged law is a “reasonable limit ...”. The standard of proof is “the civil standard; proof by a preponderance of probability”. But the test must be applied rigorously (Oakes).
RATIONALE OF S.1
o What is a right? Or a guaranteed right?
o The law may make some people worse off so long as the costs outweigh the benefits to others (as a general net increases in the general welfare).
o RONALD DWORKIN à critique on s.1: rights are not “taken seriously” if they can be overridden simply by an appeal to the general welfare. It should not be possible to take away a right just because, on balance, the benefits to others will outweigh the cost to the right-holder.
o R v Oakes [1986] as per DICKSON à stipulated STRICT rules as the burden and standard of proof of justification and to qualify a law as a ‘reasonable limit’, it can be justified in a free and democratic society.
à”The underlying values of a free and democratic society both guarantee the rights on the Charter; and justify limitations upon those rights”
RELATIONSHIP BETWEEN S.1 AND RIGHTS
o There is a close relationship between the standard of justification required under s.1 and the scope of guaranteed rights.
o HOGG à using the Oakes stringent/single standard of justification is a better decision for the courts. It reduces floodgates. Whereas using the more relaxed standard simply upholds the legislation causing floodgates.
o Thus, if the rights are broad, and the standard of justification is low, then many more Charter challenges will come before the courts, and will fall to be determined under s.1.
o And since the standard of justification under s.1 is low, it would be difficult to devise meaningful constraints on the process of judicial review
o For Judicial Review – if rights are TOO BROAD, then the standard of justification is TOO LOW, and so, many more Charter challenges will enter into the courts and fall under s.1 (causing floodgates).
o Therefore, the standard of justification under s.1 would be TOO LOW and it would be difficult to devise constraints on judicial review which would make judicial review even more unpredictable and policy-laden
o Thus, the Court insisted upon a “stringent/single standard of justification” before it would accept a limit under s.1
PRESUMPTION OF CONSTITUTIONALITY
o Federalism cases – When a statute is attacked on federal grounds, there is a presumption of constitutionality. This is between two levels of government. A presumption tilts the scale in favour of upholding the law that has been enacted by one of the levels of government.
VS.
o Charter cases – In Charter cases, there is NO presumption of constitutionality (except for reading down). The constitutional contest is between a government and an individual, who asserts that a right has been violated. In this context, it is not appropriate to tilt the scale in favour of the government (burden on the gov’t to prove the presence of elements of s.1). There should be no obstacles placed in the way of an individual who seeks to vindicate a Charter right.
LIMITS
o The court did not actually overrule Quebec School Board (where they denied to look in a s.1 justification because they said the breach involved a “denial” and not just a “limit), but signalled that it will no longer use the distinction to obviate/prevent the requirement of s.1 justification.
o Thus, the result seems to be that even severe restriction on Charter rights will count as limits, and will therefore be susceptible to s.1 justification. The severity of the contravention would not be irrelevant, of course, because it would be harsher to establish that a severe contravention was reasonable and demonstrably justified.
PRESCRIBED BY LAW
(a) Definition of prescribed by law
o S.1 “prescribed by law” = an act that is NOT legally authorized can NEVER be justified under s.1, no matter how reasonable or demonstrably justified it appears to be.
Little Sisters Book and Art Emporium v Canada [2000]
o Held: customs officials had discriminated against homosexual literature in administering the statutory prohibition on the importation of obscene materials. This was a breach of the equality right in s.15 Charter, and it could NOT be justified under s.1.
o The customs legislation did not authorize any distinction between homosexual and heterosexual literature and therefore, the actions of the customs officials were NOT prescribed by law.
o The requirement that any limit on rights be prescribed by law reflects 2 values that are basic to constitutionalism or the rule of law.
1. In order to preclude arbitrary and discriminatory action by government officials, all official action in derogation of rights must be authorized by law.
2. Citizens must have a reasonable opportunity to know what is prohibited so that they can act accordingly
o Both these values are satisfied by a law that fulfils 2 requirements:
a. The law must be adequately accessible to the public
b. The law must be formulated with sufficient precision to enable people to regulate their conduct by it, and to provide guidance to those who apply the law.
o Both these requirements have been held to be inherent in the phrase “prescribed by law” by the ECrtHR
o And the SCC held that the phrase “prescribed by law” in s.1 entails the same 2 requirements of accessibility and precision.
Greater Vancouver Transportation Authority v Canadian Federation of Students [2009]
o Facts: Transit authorities had the statutory power to enact binding rules of general application. Although policies were not officially published as delegated legislation, they were set out clearly in writing and made available to those who wished to advertise on buses.
o Issue: the court distinguished the “legislative” policies in this case from “administrative” policies that were internal within the government as aids in their interpretation of regulatory powers, to see whether the policies were sufficiently accessible and precise to be “law” under s.1.
o SCC Held: Administrative policies, which were often informal and inaccessible outside government, would NOT court as law for purpose of s.1. As for precision, it was held that a limit on a right need not be express, but can result “by necessity” from the terms of a statute or regulation or from its operating requirements.
o Therefore thepolicies or transit authorities restricting advertising on the sides of buses were limits on freedom of expression that were prescribed by law.
(b) Discretion
Re Ontario Film and Video Appreciation Society (1984)
o PRINCIPLE: statute must give some criteria for a board’s discretion.
o Held: a statute authorizing film censorship failed the ‘prescribed by law” requirement because the censor board was given an unfettered discretion to ban or cut films proposed for public exhibition; the statute did no stipulate the criteria.
R v Hufsky (1988)
o PRINCIPLE: Unfettered discretion to stop vehicles as part of a spot check program is a limit ‘prescribed by law’.
o Facts: Provincial statute gave police unfettered discretion to stop vehicles. Police used the power to stop vehicles at random, in a programme of spot checks.
o SCC Held: SCC upheld the statute. The general discretion conferred by the statute should be interpreted to extend to random stops; and the statute was a limit prescribed by law on the right not to be arbitrarily detained.
Following Hufsky:
R v Ladoucer (1990)
o PRINCIPLE: Unfettered discretion to stop vehicles not part of a spot check program is also a limit ‘prescribed by law’.
o Facts: Police officer performed random stop, not part of any organized programme.
o SCC Held: the same statute (in Hufsky) authorized the stop, and it was a limit prescribed by law on the right not to be arbitrarily detained.
Dissent: Hufsky should be confined to stops at organized check-points, s.1 could not extend to a statute that authorized a police officer to stop any vehicle at any time for any reason.
Slaight Communications v Davidson
o PRINCIPLE: An arbitrator acting under a statute with discretion satisfies the “prescribed by law” requirement.
o Facts: adjudicator ordered the employer to provide a letter of reference.
o SCC Held: Both the positive and negative orders, although limits on the employer’s freedom of expression, were justified under s.1. The “prescribed by law” requirement was satisfied because the adjudicator’s order was made under the authority of a statute even though the statute simply gave a general power to order compensation, reinstatement, etc. The statutory discretion was held to be a limit prescribed by law on freedom of expression.
o LAMERà drew a distinction between 2 types of statutory conferrals of discretion:
1. The statute that expressly or by necessary implication authorized a decision that would infringe a Charter right. In that case, the statute itself, NOT the decision, had to be justifiable under s.1.
(This was seen in Ontario Film and Video, Husky and Ladouceur)
2. The statute that conferred a discretion in language that was apparently broad enough to encompass decisions infringing a Charter right. In that case, the broad empowering language should be read down so as NOT to authorize decisions that would infringe the Charter.
(This was seen in Slaight Communications)
(c) Vagueness
o A statute is “void for vagueness” if its prohibitions are not clearly defined.
o A vague law does NOT provide reasonable notice of what is prohibited so that citizens can govern themselves safely.
Irwin Toy v Quebec (1989)
o PRINCIPLE: As long as the statute provides some guidance on discretion, it will be upheld as “prescribed by law”. Absolute precision is not necessary.
o Facts: Provincial statute prohibited “commercial advertising directed at persons under 13”. The statute stipulated three factors that were to be taken into account, but even with these factors, the scope of the prohibited class of advertisements was highly uncertain.
o IT’s argument: Such a vague prohibition could not be a limit on freedom of expression that was prescribed by law.
o SCC Held: It was not practicable to seek “absolute precision” in a statute. A law would fail the “prescribed by law” test only “where there is NO intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances. Because the statutory factors provided an “intelligible standard” for the application of the prohibition.
REASONABLE AND DEMONSTRABLY JUSTIFIED
(a) Introduction
o Charter rights are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
o The requirement of reasonableness may be redundant, because a limit that is demonstrably justified must surely be reasonable.
(b) OAKES TEST
o In Oakes DICKSON articulates a single standard to apply to all laws that limit charter rights.
o Four criteria must satisfied by a law to establish that a limit is reasonable and demonstrably justified in a free and democratic society:
(1) Sufficiently important objective: The law must pursue an objective that is sufficiently important to justify limiting a Charter right.
(2) Rational connection: The law must be rationally connected to the objective.
(3) *Least drastic means: The law must impair the right no more than is necessary to accomplish the objective.
(4) Proportionate effect: The law must not have a disproportionately severe effect on the persons to whom is applies.
(1) SUFFICIENTLY IMPORTANT OBJECTIVE (objective of the Act)
(a) Identification of objective
o At the practical level, the objective of the legislators in enacting the challenged law may be unknown. The objective of the law could be high or low. There is no logical or factual basis for preferring one version of the law’s objective to the other; they are simply expressed at different levels of generality.
o If the objective has been states at a high level of generality, it will be easy to think of other ways in which the objective could be accomplished with less interference with the Charter right.
Andrews v Law Society of BC (1989)
o Issue: The challenged law imposed a requirement of Canadian citizenship for admission to the legal profession of BC.
o SCC Held: Law infringed the guarantee of equality, but the court divided on the question whether the law could be justified under s.1. Majority held that the citizenship requirement could not be justified under s.1 (thus viewed the objective at a low level of generality since they interpreted it more narrowly, or less generally.).
o The objective of the law could be expressed at a:
high level of generality: to restrict entry to the legal profession to persons who are qualified to practise law.
Or
low level of generality: to restrict entry to the legal profession to persons who are Canadian citizens.
o The higher the level of generality at which a legislative objective is expressed, the more obviously desirable the objective will appear to be.
o This will move the s.1 inquiry into the proportionality of the means that the law employs to accomplish the objective (steps 2, 3, 4 of Oakes test)
Irwin Toy v Quebec (1989)
o SCC upheld a Quebec law that prohibited advertising directed at children under 13. The law infringed freedom of expression, but was held to be justified under s.1.
The majority of the court defined the objective at a very low level of generality, as the protection of children from advertising. Having defined the objective test in narrow terms, low level of generality, it was then easy to find that the proportionality tests were satisfied.
(b) Importance of objective
o A law pursues an objective that is sufficiently important to justify an overriding a Charter right. But when does an objective achieve this degree of importance?
o In R v Oakesas per DICKSON:
(1) The objective must be consistent with the values of a free and democratic society in s.1; and
(2) The objective must relate to concerns which are “pressing and substantial”, rather than merely trivial.
(3) The objective must be directed to “the realization of collective goals of fundamental importance”
(c) Quebec’s Distinct Society
o
(d) Inadmissible Objectives
o DICKSON in Oakes made it clear that a legislative objective would NOT court as justification if it was NOT sufficiently important to override a Charter right.
o There is only ONE case which the SCC has rejected the legislative objective:
o R v Big M Drug Mart (1985)– SCC held the purpose, “to compel the observance of the Christian Sabbath” was directly contradictory of the Charter right, and could NOT be a purpose that justified limiting the right.
.
(e) Shifting Objectives
o R v Big M Drug Mart (1985)– SCC held that an objective cannot be the basis for s.1 justification if that objective did not cause the enactment of the law.
o DICKSON à rejected the notion that the purpose of a law might change over time with changing social conditions. “Purpose is a function of the intent of those who drafted and enacted the legislation at the time, and NOT of any shifting variable”
o This rule was used in
R v Butler [1992] – the court upheld under s.1 the anti-obscenity provision of the Criminal Code. The court formulated the objective of the law at the level of generality that could be regarded as remaining constant over time, even though the “emphasis” had changed with changing community values
o This technique offers a path AROUND the rule against shifting objectives
o But in R v Zundel [1992] – the SCC refused to take that path and held that, cince the law had not been enacted for an objective that was sufficiently important today to justify a limit on freedom of expression, the law was struck down.
(f) Cost
o Is it a possible justification of a limit on a Charter right that the limit will save money?
Singh (1985)
o PRINCIPLE: saving money is NOT a justified limit.
R v Lee (1989)
o PRINCIPLE: wasting the time of the jury is a justified reason to impose a limit.
o Facts: Criminal Code provided that an accused who had elected trial by jury, but who had failed to appear for trial without a legitimate excuse, was to be tried by judge alone.
o Issue: was this the denial of the Charter right to “the benefit of trial by jury” under s.11(f)?
o SCC Held: the right had been denied, but the section was saved by s.1 because it was appropriate to deny the right to those who had burdened the system with the cost of futilely empanelling a jury.
o Nova Scotia v Martin [2003] - But the SCC has rejected claims of cost and administrative expediency as grounds of justification for a standard program to deal with “chronic pain”
o Only ONE case has the SCC accepted that the saving of government money is a sufficiently important objective to justify a limit on a Charter right:
Newfoundland v N.A.P.E. (2004)
o PRINCIPLE: the financial crisis of the province supplied a sufficiently important objective to justify the limit on the female workers equality rights.
o It was “not convincing simply to declare that an expenditure to achieve a s.15 objective must necessarily rank ahead of hospital beds or school rooms”.
o Only case where the SCC accepted that the saving of government money is a sufficiently important objective to justify a limit on a Charter right.
(2) RATIONAL CONNECTION
o This is the FIRST ELEMENT of proportionality
(a) Definition
o The Oakes case itself failed the rational connection requirement:
R v Oakes (1986)
o PRINCIPLE: The law in question must be rationally connected to its objective.
o Facts: At issue was the validity of a provision of the federal Narcotic Control Act, which provided that proof that the accused was in possession of an illegal drug raised a presumption that the accused was in possession for the purpose of trafficking.
o Issue: The effect of the provision was to cast on the accused the burden of proving that he was not in possession for the purpose of trafficking.
SCC Held: This “reverse onus” clause was an infringement of s.11(d) of the Charter, which guarantees the presumption of innocence. The court agreed that the objective of the reverse onus clause – to protect society from drug trafficking – was sufficiently important to justify limiting a Charter right. But held that the law failed the rational connection test.
o DICKSON à There must be “a rational connection between the basic fact of possession and the presumed fact of possession for the purpose of trafficking”.
o HOGGàthe requirement of least dramatic means seems to provide a much stronger ground for the decision than does the requirement of rational connection
Benner v Canada (1997)
o PRINCIPLE: The law in question must be rationally connected to its objective.
o SCC Held: it was a breach of equality right to impose more stringent requirements for Canadian citizenship on a person born outside Canada before 1977 to a Canadian mother than on a person born outside Canada to a Canadian father.
o Reasoning: The court assumed that the screening out of dangerous persons was an important objective, but held that there was no rational connection between the objective and discrimination. The children of Canadian mothers could not rationally be regarded as more dangerous than the children of Canadian fathers.
Greater Vancouver Transportation Authority v Canadian Federation of Students [2009]
o Issue: the challenged law prohibited the placing of political messages on the sides of buses. Was this a limit on freedom of expression?
o SCC Held: the challenged law failed the rational-connection test. The objective of a “safe, welcoming transit system” was sufficiently important to justify some limits on freedom of expression. The political character of a message had no bearing on whether the message created an unwelcoming environment for transit users, and therefore there was NO RATIONAL CONNECTION between the objective and the law banning political messages.
(b) Causation
o The SCC has not always insisted on direct proof of the causal connection/relationship unless based on “reason”, “common sense”, or “logic” (RJR-MacDonald)
(3) LEAST DRASTIC MEANS (or the minimum impairment test)
o This is the SECOND ELEMENT of proportionality
(a) Minimum impairment
o In each case, the SCC held that other laws were available which would still accomplish the desired objective but which would impair the Charter right less than the law that was enacted. So, the 3rd step was used:
Ford v Quebec (1988) – Quebec’s prohibition of the use of English in commercial signs has been held to be too drastic a means of protecting the French language, although requiring the use of French is acceptable (Devine v Quebec).
Black v Law Society of Alberta (1989) – Alberta’s rule prohibiting Alberta lawyers from entering into partnership with lawyers not resident in Alberta has been held to be too drastic a means of regulating the standards of the legal profession.
Rocket v ... Dental Surgeons (1990) – Ontario’s prohibition on advertising by dentists has been held to be too drastic a means of maintaining high professional standards.
(b) Margin of Appreciation
o If s.1 is to offer any real prospect of justification, the judges have to pay some degree of deference to legislative choices.
o For instance: If s.1 is to permit some accommodation of federal values, the judges have to allow to provincial Legislatures a “margin of appreciation”, a zone of discretion within which different legislative choices in derogation of a Charter right could be tolerated.
BCGEU v AG of BC (1989) – SCC upheld an injunction prohibiting the union, which was on strike, from picketing the courts of BC, where some of its members worked. Court held that the injunction limited freedom of expression by the least drastic means because the union was free to picket workplaces other than the courts.
Prostitution Reference (1990) – SCC upheld the offence of communicating for the purpose of prostitution. This was a limit on freedom of expression that was justified by the objective of eliminating the nuisance of street solicitation. The law passed the least drastic means test.
Dissent – the law failed the least drastic means test since it prohibited communication regardless whether it actually cause traffic congestion, noise, or any other nuisance.
o In each of these cases above, it does not take a vivid imagination to devise a law that would be less intrusive of the applicable Charter right than the law that was enacted.
o But the court was willing to defer to the legislative choice on the basis that the choice was within a margin of appreciation, a zone of discretion in which reasonable legislators could disagree while still respecting the Charter right
(4) PROPORTIONATE EFFECT
o This is the THIRD STEP of proportionality
o This step has never had any influence on the outcome of any case.
o HOGG à concludes that an affirmative answer to the first step – sufficiently important objective – will always yield an affirmative answer to the fourth step. And if this is so, then the fourth step has no work to do, and can safely be ignored
o But in:
o MCLACHLIN in Hutterian Brethren à made it clear that the forth step had to be satisfied. She determined that the forth step was satisfied because the salutary effects of the universal photo requirement outweighed the deleterious effects on the claimant’s religious rights
APPLICATION OF EQUALITY RIGHTS
o The Oakes test is applicable to all Charter infringements.
o Application to qualified rights: s.12 (right not to be subject to any cruel and unusual treatment or punishment) may be an absolute right, not subject to s.1.
o Which regards to s.15:
o The Oakes test ought to apply to s.15 cases. This has been the t implicit assumption of the court in many equality cases that have been decided since Andrews.
APPLICATION TO QUALIFIED RIGHTS
(a) Scope of s.1
o s.1 DOES have a role to play in justifying infringements of Charter rights that are by their own terms qualified by notions of reasonableness or regularity
(b) Section 7
o S.7 guarantees the right not to be deprived of life, liberty, and security of a person except in accordance with the principles of fundamental justice.
o In other SCC cases (other than B.C Motor Vehicle Ref and R v Morgentaler (No. 2)), the SCC has usually applied s.1 before holding that a breach of s.7 invalidated a law.
(c) Section 8
o S.8 guarantees the right to be secure against unreasonable search and seizure
o See Hunter v Southam
o Therefore, in principle, it is possible to imagine a law that fails the narrow test of reasonableness in s.8, but passes the broader test of reasonableness in s.1.
(d) Section 9
o S.9 guarantees the right not to be arbitrarily detained or imprisoned.
o In Hufsky – SCC held that s.1 was applicable to salvage an infringement of s.9
(e) Section 11
o S.11 demonstrates that several of the rights of accused persons are qualified by requirements of reasonableness.
o Therefore, in principle, it is possible for a law to fail a requirement of reasonableness in s.11 and still pass the more generous requirement of reasonableness in the different context of s.1
o S.11(d) is an exception (see Mackin v New Brunswick)
(f) Section 12
o HOGG à finds it difficult to accept that the right not to be subjected to any cruel and unusual treatment or punishment (s.12) could NEVER be justifiably limited
APPLICATION TO COMMON LAW
o The Oakes test applies to common law limits on rights
o Common law may be “prescribed by law” under s.1
o Two cases at common law rules in derogation of Charter rights have been held to be justified under s.1 (but the tests were not applied with much care)
o It is difficult to apply various tests to a rule of the common law, where there is no specific enactment that can be examined in terms of the 4 Oakes tests.
o But in:
R v Swain [1991]
o The SCC applied the Oakes tests to the common law rule that a Crown prosecutor may adduce evidence of the insanity of the accused against the wish of the accused. This rule was in violation of s.7 because evidence of insanity limited the accused’s right to control their own defence.
o SCC Held: the rule failed the least-dramatic-means branch of the Oakes tests, and could not, therefore, be upheld under s.1.
o While a rule of statute law that violated the Charter would have to be struck down, a rule of common law could be amended by the court itself.
o LAMER à he could see “no conceptual problem with the court simply enumerating such a rule to take place of the old rule”
o THUS, a less dramatic rule, which would satisfy s.1, would allow the Crown to adduce evidence of insanity only after the accused had been found otherwise guilty of the offence charged.
o THEREFORE, the offending rule of common law was immediately transformed into a NEW RULE that was compatible with the Charter of Rights
R v Daviault [1994]
o SCC Held: the common law rule that self-induced intoxication was no defence to a criminal charge offended ss.7 and 11(d) of Charter.
o The court constructed a NEW RULE that extreme intoxication was a defence, and that the defence had to be established by the accused on the balance of probabilities
o The onus of proof on the accused was a breach of the presumption of innocence of 11(d), but the court held that it was justified under s.1
o R v Stone [1999] – held that the common law defence of automatism had to be established by the accused on the balance of probabilities. This was a change in the law, and it was a breach of s.11(d), but held that the shift to the accused of the onus of proof was justified under s.1.
o NOTE:
è Theses cases were criminal cases in which the Charter applied by virtue of the presence of the Crown as a party to the proceedings
è The Charter of Rights does NOT apply to the common law in its application to private parties (where no governmental actor is involved)
è HOWEVER the SCC has held that the Charter applies INDIRECTLY to the common law (b/c the court will examine whether the common law is consistent with the ‘Charter values’, and if not, the Court will modify the common law to make it consistent with the ‘Charter values’).
EMERGENCY MEASURES
o The Charter makes NO explicit provision for the enactment of emergency measures.
o It will be for the courts to decide whether such restrictions are reasonable and demonstrably justified in a free and democratic society
Freedom of Conscience and Religion s.2(a)
DISTRIBUTION OF POWERS
s.92(12) – Legislature power over the solemnization of marriages
s.93(3) – Legislatures power over education extends to the establishment of denominational schools.
R v Edwards Books and Art (1986)
o SCC upheld provincial law that prohibited retail stores from opening on Sundays. The law came within property and civil rights because it pursued the secular purpose of providing a pause day for retail workers. HOWEVER, the law contained an exemption for stores of less than a specified size that observed Saturday as a holiday. This “sabbatarian” exemption admittedly had the religious purpose of accommodating those who observed Saturday as their Sabbath.
o Issue: did the religious purpose render the exemption unconstitutional?
o SCC Held: It did not render it unconstitutional. It was open to a provincial Legislature “to attempt to neutralize or minimize the adverse effects of otherwise valid provincial legislation on human rights such as freedom of religion.
Dickson J: “the Constitution does not contemplate religion as a discrete constitutional ‘matter’ falling exclusively within either a federal or provincial class of subjects”.
SECTION 2(a) OF THE CHARTER
o s.2(a) is subject to s.1, but not subject to s.33
FREEDOM OF CONSCIENCE
o Protects systems of beliefs which are NOT theocentric (centred on deity/religion).
FREEDOM OF RELIGION
R v Big M Drug Mart (1985)
o DICKSON J à offered a definition of freedom of religion: “...the right to declare religious beliefs openly ... and the right to manifest religious belief by worship and practice or by teaching and dissemination”.
o Thus, s.2(a) protects religious practices as well as religious beliefs.
SUNDAY OBSERVANCE
R v Edward Books and Art (1986)
o The legislative history of the Ontario Retail Business Holidays Act showed that its purpose was the secular one of providing a common pause day for retail workers. SCC held, nonetheless that the law infringed s.2(a), because its effect was to impose an economic burden on those retailers who observed a Sabbath on a day other then Sunday.
o That effect created a “competitive pressure” to abandon a non-Sunday Sabbath, which was an abridgement of freedom of religion. However, the court upheld the law under s.1. The secular purpose of providing a common pause day was sufficiently important to justify a limit on freedom of religion.
o Issue: Did the legislature use the least drastic means of accomplishing the objective? YES, since the Act contained a “sabbatarian exemption” for retailers who closed their stores on Saturdays.
o Eventually, the Ontario Legislature amended the Act to exempt any retail store that closed on a day other than Sunday by reason of religion of the owner of the store; such a store was free to open on Sunday.
OTHER RELIGIOUS PRACTICES
R v Big M Drug Mart
o DICKSON à the freedom of religion included the right “to manifest religious belief by worship and practice”.
o However, the proviso was added that “such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own”.
o Thus, freedom of religion would NOT protect minority religious groups in such practices as human sacrifice, or refusals of schooling or medical treatment of children.
o Where there is no compelling governmental interest to the contrary, s2(b) of Charter would require the law to accommodate minority religions by according exemptions for their practices.
Young v Young (1993)
o PRINCIPLE: freedom to teach children father’s religion may only be restricted if it would avoid a risk of substantial harm.
o Facts: judge granted custody to the mother of three young children, and had granted access to the father, but with the restriction that the father not discuss the Jehovah’s Witness religion with the children, or take them to religious services. The mother did not share the same views. The father attacked the restriction as a freedom of religion.
o SCC Held: the restriction, although imposed in the best interest of the children, would offend freedom of religion, unless it could be shown that the restriction was needed to avoid a “risk of substantial harm” to the children; since, in his view, the evidence established no such risk, the restriction was struck down.
o The idea that freedom of religion authorizes religious practices only so far as they do not injure others has been abandoned by the SCC in favour of an unqualified right to do anything that is dictated by a religious belief.
B.(R) v Children’s Aid Society (1995)
o PRINCIPLE: parents have the right to choose the medical treatment of the child in accordance with their religious beliefs subject to the imposition on the child of religious practices which threaten safety, health or life AND freedom of religion is to be given a broad interpretation.
o Facts: The doctors considered that the child’s life would be in danger if she did not receive the blood transfusion. An application was made under Ontario’s child welfare statute to make the child a temporary ward of the Children’s Aid Society. The application was granted and the Society consented to the blood transfusion.
o SCC Held: the decision of parents to prohibit doctors from giving a blood transfusion to their baby was protected by freedom of religion, because it was dictated by their beliefs as Jehovah’s witnesses. However, the statutory procedure was justified under s.1. There were intrinsic limits on freedom of religion, and “a parent’s freedom of religion does not include the imposition on the child of religious practices which threaten the safety, health or life of the child”.
Ross v New Brunswick School District No. 15 (1996)
o Facts: Ross was a schoolteacher who publicly disseminated (not in his teaching, but in the form of books, letters to the newspaper and tv) the opinion that Christian civilization was being destroyed by an international Jewish conspiracy. Ross had been removed from his teaching position by a board constituted under New Brunswick’s human rights statute.
o SCC Held: Ross’s activities were protected by freedom of religion. The board’s order infringed Ross’s freedom of religion (and freedom of expression). However, most of the board’s order could be justified under s.1 as a measure to remedy an anti-semitic environment in the school. The court ordered that the board had overstepped the reasonable limit of s.1 in also ordering the school board to dismiss the teacher from his non-teaching post if at any time in the future he were to resume his anti-semitic activities.
Syndicat Northcrest v Amselem (2004)
o PRINCIPLE: Religious practice has a broad definition. The claimant must prove that he sincerely believed the practice was of religious significance.
o Issue: was the right, claimed by orthodox Jew condominium owner, to build “succahs” (temporary dwellings) on the balconies of their condominium. Condominium by-laws prohibited “construction of any kind whatever” on the balconies. This rule had aesthetic purposes and keeping balconies free of obstruction as fire escape routes. Other owners sought an injunction preventing the succahs.
SCC Held: Succahs were entitled to be erected in defiance of the by-laws.
Iacobucci defined protected religious practice in an extraordinarily broad fashion:
The practice need not be part of an established belief system, or even a belief system shared by some others; it could be unique to the claimant. The practice need not be perceived as obligatory by the claimant. All that was necessary to qualify a practice for Charter protection was that the claimant sincerely believed that the practice was “of religious significance”. The test was wholly subjective. Expert evidence was not necessary, because the claimant only had to show the sincerity of his belief. It did not matter that the claimants had not attempted to build their own succahs in the past, because “individuals change and so can their beliefs”.
Dissent: the claimants had chosen to purchase a condominium in a building with by-laws that prohibited construction on the balconies.
Syndicat Northcrest v Amselem applied in:
Multani v Commission scolaire Marguerite-Bourgeoys (2006)
o Issue: whether a 13 year old Sikh boy was constitutionally entitled to wear a kirpan (dagger with a metal blade) to his public school even though a school board regulation (in a statutorily authorized code) prohibited students from brining weapons and dangerous objects to school.
o SCC Held: the regulation infringed freedom of religion. The court found that the student sincerely believed that his religion required him to wear a kirpan made of metal at all times. Folloing Syndicat all he has to show was” “that his personal and subjective belief in the religious significance of the kirpan is sincere”.
Alberta v Hutterian Brethren of Wilson Colony [2009]
o Issue: whether the requirement of provincial law that a driver’s licence display a photograph of the holder, applies to a Christian denomination who believe that having their photo taken is forbidden by the Bible
o SCC Held: the Hutterian claimants had a sincere religious belief that prohibited their being photographed, and that believe was protected by s.2(b) of Charter. However, the universal photo requirement was justified under s.1 since the requirement was a reasonable limit on freedom of religion and the claimants were NOT entitled to an exception
WAIVER OF RELIGIOUS PRACTICE
Syndicat Northwest v Amselem [2004]
o Facts: the condominium case
o SCC Held: brushed aside the argument of their co-owners that the claimants had waived their religious right.
o IACOBUCCI à provided reasons for denying the primacy of the by-laws.
o BINNIE (dissented) à claimants had a choice of places to live, and they “undertook by contract to the owners of THIS building to abide by the rules of THIS building even if they accepted the rules without reading them”. Therefore, he reasoned that the claimants should be defeated by their “contract with their co-owners, that they would NOT insist on construction of a personal succah on the communally owned balconies of the building”
o It is an extraordinary doctrine that permits a contacting party to invoke a sincere religious belief as the basis for IGNORING a contracting promise that the promisor freely made but no longer wishes to keep
o Compare to:
Bruker v Marcovitz [2007]
o Facts: two spouses Orthodox Jews were able to divorce via law, but not religiously unless a rabbinical court provided them with a “get” (Jewish divorce granted by husband and agreed by wife)
o Issue: despite his promise, the husband refused for 15 years to grant a get, and did so only after the wife brought an action against him for breach of contract. He invoked freedom of religion (via Amselem) as the basis for his absolute right to withhold the get in spite of his signed contract to grant it.
o SCC Held: rejected this argument and upheld an award of damages for breach of contract against the husband
o ABELLA à “the husband had converted his religious right to withhold the get into a contractual obligation to grand the get. He was bound by the contact to fulfill that obligation despite its religious aspect. The husband’s ‘binding promise’ was only the public policies of equality, religious freedom and autonomous choice in marriage and divorce”
o Therefore, a contract that waived a right to a religious practice would NOT be enforced if it were contrary to public policy to do so. There was nothing contrary to public policy in the Amselem contract to keep condominium balconies free of construction: that promise was demanded by the co-owners
RELIGION IN PUBLIC SCHOOLS
Zylberberg v Sudbury Board of Education [1988]
o Issue: a challenge was brought to an Ontario regulation, made under statutory authority, that requires a public school to open or close each school say with “religious exercises consisting of the reading of the Scriptures or other suitable readings and the repeating of the Lord’s Prayer or other suitable prayers”
o CA Held: the regulation was unconstitutional because it “imposed Christian observances upon non-Christian pupils and religious observances on non-believers”
o Ontario did not appeal the decision and the province removed the requirement of “religious exercises” from its public school regulations. However, the province kept a 1944 regulation that required a public school to devote two periods per week to “religious education” (a parent had a right to apply to this principle and exempt their child from religious education)
Canadian Civil Liberties Association v Ontario [1990]
o CA Held: struck this above provision as well. The PURPOSE of the regulation was the indoctrination of Christian belief, as opposed to education about many religions. Therefore, the regulation was unconstitutional
o Therefore programmes of religious exercises or instruction in public schools will normally violate the guarantee of freedom of religion.
o What would NOT violate the guarantee is a course on religion that examined various religions in a neutral way, not promoting any one religion or assuming the superiority of any one religion.
DENOMINATIONAL SCHOOLS
o s.93 – guarantees the system of state aid to minority Protestant and Catholic schools.
Adler v Ontario (1996)
SCC Held: a province’s failure to fund the schools of religious denominations not recognized by s.93 was NOT a breach of freedom of religion under s.2(a) or of equality under s.15.
R v Big M Drug Mart – DICKSON à left open the question whether s.2(a) prohibits state aid to denominational schools other than those entitled under s.93.
RELIGIOUS MARRIAGE
o Under provincial law, marriage may be solemnized in civil or religious ceremonies.
o Religious ceremonies can be denied by a church, synagogue or mosque
o But civil ceremonies will not be denied.
Same-Sex Marriage Reference (2004) – Parliament could enact a bill legalizing same-sex marriage for civil purposes under it power over “marriage” in s.91(26). But religiously, not recognized.
Freedom of Expression s.2(b)
DISTRIBUTION OF POWERS
(a) Classification of laws
o Laws abridging civil liberties are subject to federal distribution of powers
o Political speech may well be a distinct matter that is assigned exclusively to the federal Parliament. Other kinds of speech are distributed between the 2 levels of government
(b) Political Speech
o Since the 1950s the tendency of the cases has been to expand provincial power over speech, even in cases where the power was exercised in derogation of civil libertarian values
(c) Provincial Power
o The provincial power over speech does authorize the regulation of speech on commercial or local grounds (i.e. defamation)
(d) Federal Power
o The federal Parliament has the power to regulate political speech as well as the power to make particular kinds of speech criminal (fraud, obscenity, hate propaganda)
SECTION 2(b) OF CHARTER
o s.2(b) – guarantees to everyone the fundamental freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
o A law will be held unconstitutional only if BOTH questions are answered adversely to the law.
o While this 2-stage process is appropriate for judicial review under all the Charter rights, we shall see that the unqualified language of s.2(b), reinforced by the broad interpretation that has been given to that language, means that, in most of the freedom of expression cases, it is easy to decided that, YES, the impugned law DOES limit s.2(b).
COMPARISON WITH FIRST AMENDMENT
o First amendment uses the word “speech”
o S.2(b) uses the phrase, “thought, belief, opinion and expression”
REASONS FOR PROTECTING EXPRESSION
o What is the rationale for the guarantee of freedom of expression?
o Perhaps the most powerful rationale for the constructional protection of freedom of expression is its role as an instrument of democratic government
o A second, broader rationale for the constitutional protection of freedom of expression is its role as an instrument of truth
o A third, even broader, rationale for the constitutional protection of freedom of expression is its role as an instrument of personal fulfilment.
o Irwin Toy v Quebec [1989]- embraced all three reasons for protecting freedom of expression which entails a very broad definition of the right.
(a) seeking and attaining the truth is an inherently good activity
(b) participation in social and political decision-making is to be fostered and encouraged
(c) the diversity in forms of individual self-fulfilment and human flourishing ought to be cultivated
MEANING OF EXPRESSION
(a) Definition of Expression
o SCC had defined “expression” in a broad sense: “Activity is expressive if it attempts to convey meaning”.
Indeed, the court has acknowledged that parking a car would be an expressive activity, and therefore protected under s.2(b) – a protest against the parking regulations was a sufficiently expressive purpose (Irwin Toy).
Example of courts wide definition of “expression”:
R v Sharpe (2001)
o Issue: constitutional challenge mounted the Criminal Code offence of possession of child pornography.
o SCC Held: child pornography should be constitutionally protected under s.2(b) because of its role as an instrument of personal fulfilment. However, the provision was justified under s.1.
(b) Criminal expression
Prostitution Reference (1990)
o SCC Held that communicating for the purpose of prostitution, which was an offence under the Criminal Code, was protected expression under s.2(b). However, the provision was upheld under s.1.
o In other words, s.2(b) protects falsehood and other harmful activity (i.e. counselling a suicide)
(c) Violence
o Express activity that takes the form of violence is NOT protected by s.2(b): “a murder or a rapist cannot invoke freedom of expression in justification of the form of expression he has chosen”.
o Nor can a person invoke s.2(b) to challenge his deportation from Canada for “conduct associated with violent activity”
o The court has held that threats of violence are protected by s.2(b)...but ONLY by reference to its content
(d) Content neutrality
o Content neutrality is the governing principle of the SCC’s definition of expression: “The content of a statement cannot deprive it of the protection accorded by s.2(b), no matter how offensive it may be”
R v Keegsta (1990)
o SCC held: that the promotion of hatred against the Jews or another racial group, which is a Criminal Code offence, is protected by s.2(b). However, the offence was upheld under s.1
R v Zundel (1992)
o PRINCIPLE: s.2(b) protects the dissemination of deliberate falsehoods.
o Facts: Zundel, who had published a pamphlet denying that the Holocaust occurred, was convicted under the false-news law. The Criminal Code made it an offence for a person to “wilfully publish a statement, tale or news that he knows is false and causes or is likely to cause injury or mischief to a public interest”.
o SCC Held: s.2(b)’s protection extended to deliberate falsehoods, because the truth or falsity of a statement can be determined only by reference to its content. The law was unconstitutional and could NOT be justified under s.1. Zundel was acquitted and left free to continue his dissemination of deliberate falsehoods under the protection of the Construction
R v Lucas (1998) – SCC confirmed that deliberate falsehoods were protected under s.2(b).
o The principle of Content Neutrality means that s2(b) extends to much activity that is not worthy of constitutional protection.
WAYS OF LIMITING EXPRESSION
(a) Prior Restraint
o Expression may be restricted in a variety of different ways.
o The most regarded restriction which is most severe is a “prior restraint” on publication
o Prior restraint = a law that prohibits the publication of a particular material wither absolutely or under a requirement of prior approval by a censor. Expression that is never published CANNOT contribute in any ways to the democratic process, to the marketplace of ideas or to personal fulfilment.
o The general standards of s.1 justification are applicable to prior restraint as well as to other limits on expression, and a number of prior restraints have been upheld under s.1.
(b) Border control
Little Sisters Book and Art Emporium v Canada (2000)
o Facts: the bookstore, which catered to gay and lesbian communities in Vancouver, had experienced great difficulty in importing homosexual erotica because of the frequency of seizures by customs officers.
o Issue: bookstore attacked not only the definition of obscenity in the Customs Tariff Act, but also the customs border review procedures which disproportionately withheld homosexual literature.
o SCC Held: the prohibition on obscenity, having been upheld under s.1 as a Criminal Code offence within the country, could also be used at the border. But, the court acknowledged that the implementation of the prohibition by customs officials had been unconstitutionally discriminatory against homosexual literature.
o Thus, the prohibition of obscenity was upheld under s.1, but not the custom official’s procedures for banning the homosexual literature.
(c) Penal Prohibition
o The most common restriction on speech is a prohibition coupled with a penal sanction, for example, the Criminal Code offences of perjury or counselling suicide.
o To the extent that the prospect of punishment deters the uttering of the prohibited expression, a legal prohibition operates in the same way as a prior restraint. However, some speakers may bit be deterred, and their ideas will enter the public domain.
Canada v Taylor [1990]
o Facts: Mr. T continued his telephonic message of anti-Semitism in defiance of the court order, he was committed to prison for contempt. He appealed on constitutional grounds up SCC
o SCC Held: the ban on telephone messages violated s.2(b). However, held that the ban was justified under s.1, so
Mr. T had to stay in prison
Ross v New Brunswick School District No. 15 [1996]
o Facts: public school teacher relayed anti-Senitic messages outside the classroom. The Board prohibited discriminatory practice and so, ordered teacher be removed from teaching position
o SCC Held: the order of the board of inquiry was a breach of s.2(b), but it was justified under s.1 as a measure to reduce the climate of anti-Semitism that had developed at the school
(d) Civil Prohibition
o Tort of defamation or contract to keep some matters confidential. Breach entitles aggrieved party to damages
(e) Forced expression
o Occasionally, a person is forced by law to make a statement:
R.J.R.-MacDonald v Canada (1995)
o PRINCIPLE: s.2(b) protects the right to say nothing or not to be forced to say certain things.
o Facts: a federal statute required cigarettes and other tobacco products to be sold in packages that displayed prescribed warnings of the health dangers of smoking. The warnings were unattributed, so that they could be interpreted as coming from the manufacturers (instead of the true author, the federal government), and the manufacturers were prohibited from displaying any information of their own on the packages (except for the name of the product).
o SCC Held: the requirement of unattributed warnings was a breach of s.2(b), on the basis that “freedom of expression necessarily entails the right to say nothing or the right not to say certain things”. The health warning requirement would have been upheld under s.1, but the government failed to justify the non-attribution of the warnings or the prohibition of additional information on the packages.
o After this case, the Canadian government secured the enactment of a new Tobacco Act, which continued the requirement of warning on cig packages (although now, the warnings are attributed to Health Canada)
Canada v JTI-Macdonald Corp. (2007) – SCC upheld the new requirement which attributed the warnings on cigarette packages to Health Canada.
Slaight Communications v Davidson (1989) – SCC held it was a breach of s.2(b) to order a person to make a statement (reference letter), but because the statement included “only objective facts that are not in dispute”, the order was justified under s.1.
(f) Language requirement
o A Quebec law requiring that public signs and ads be in French only has been struck down as a violation of s.2(b)
Ford v Quebec (1988) – law requiring that public signs and advertisements be in French only was struck down as a violation of s.2(b). However, the requirement of the exclusive use of French, a prohibition of the use of any other language, was unconstitutional.
Devine v Quebec (1988) – Provisions of Quebec’s Charter, which required the non-exclusive (inclusive) use of French in brochures, order, etc. was a breach of s.2(b), but, upheld under s.1.
(g) Search of Press Premises
o The SCC accepted that search warrant was invalid as a breach of freedom of the press, because of the chilling effect on newsgatherings that would be caused if info gathered was available to police
(h) Time, manner and place
o The least severe form of restriction on expression is the regulation of time, manner or place of expression.
i.e. a law might authorize a public official to stipulate the time and route of a parade. These laws restrict expression, and are therefore in violation of s.2(b); but, because they do not regulate the content of expression, a court would be likely to uphold the laws under s.1.
o The regulation of time, manner and place can be so broad as to account to a significant restriction on expression
U.C.F.W. v Kmart Canada (1999)
o PRINCIPLE: A statute prohibiting secondary picketing involving leafleting is a breach of s.2(b).
o Facts: A provision in the Labour Relations Code of BC prohibited a striking union from handing out leaflets at workplaces other than the struck premises (secondary picketing).
o SCC Held: struck down the provision. The goal of minimizing disruption to businesses that are not involved in the labour dispute would justify a prohibition of conventional picketing, but not a prohibition of leafleting, which, like postering, was a traditional means of communicating information by poorly-funded groups.
Pepsi-Cola Canada Beverages v R.W.D.S.U. (2002)
o PRINCIPLE: a common law complete ban on secondary picketing infringes s.2(b), unless the secondary picketing is not lawful (i.e. tort of intimidation by picketing at manager’s home).
o Facts: In Saskatchewan, where secondary picketing was not governed by statute (unlike in Kmart), a court issued an injunction prohibiting all secondary picketing by employees of Pepsi. The employees had picketed, not only the bottling plant where they worked (primary location), but also the shops that sold Pepsi and other secondary locations. The injunction was very sweeping in that only the primary location was open to picketing.
o SCC Held: the common law did not authorize an injunction that applied to all secondary locations regardless of the nature of the picketing activity. In order to protect freedom of expression, only a more limited injunction could be issued. The injunction was discharged except for the picketing of the homes of Pepsi management since those pickets were guilty of intimidation.
COMMERICAL EXPRESSION
(a) Protection of Commercial Expression
o Commercial expression = advertising. It is an expression that is designed to promote the sale of goods and services
o 2 reasons why commercial expression ought to be protected under a guarantee of freedom of expression:
(b) Language Requirements
o SCC held that commercial expression is protected by the guarantee of freedom of expression in s.2(b).
o The first case to reach the court is:
o Ford v Quebec [1988] - where the court held that the language-of-signs law violated s.2(b) by prohibiting signs in English language, and that the law could not be justified under s.1 because the purpose, the protection of the French language, impaired the rights of English-speakers more than necessary to accomplish the purpose.
(c) Advertising restrictions
Irwin Toy v Quebec (1989)
o SCC held: that advertising was constitutionally protected by s.2(b), following Ford, however upheld a law that prohibited all commercial advertising directed at children under 13. The ban was not an absolute one, in the sense that products such as toys and breakfast cereals could still be advertised, provided the advertising did not use cartoons and other techniques directed at children.
o Thus, the product could always be advertised, it was the method (i.e. using cartoons) which was prohibited.
Rocket v ... Dental Surgeons – SCC held that the prohibition of dentists advertising their services was a violation of s.2(b). The objective of maintaining high standards of professional conduct would justify the regulation of advertising by professionals, but this particular regulation was far broader than was necessary to accomplish that purpose and thus, was not justified under s.1.
(d) Sings
o Commercial signs are protected by s2(b).
o It was the regulation of the language of commercial signs that was struck down in Ford, which was the SCC’s first commercial speech case
R v Guignard (2002) – SCC struck down a by-law which prohibited advertising signs and billboards except in industrial zones of the municipality. The defendant erected a sign on his law complaining about an insurance claim delay. The provision infringed freedom of expression, the municipal efforts to restrict roadside advertising in the interests of environmental aesthetics and safety ran into a Charter barrier.
Vann Niagara v Oakville [2003] – SCC accepted a municipal by-law that banned “billboard signs” throughout the municipality. Once again, the provision infringed freedom of expression, the municipal efforts to restrict roadside advertising in the interests of environmental aesthetics and safety ran into a Charter barrier.
(e) Prostitution
o Prostitution, like tobacco, is lawful in Canada,
Prostitution Reference (1990) – SCC held communicating in a public place for the purpose of engaging in prostitution is protected by s.2(b), but the Criminal Code provision is protected by s.1.
PICKETING
o Picketing is protected by s.2(b) of the Charter.
o Both commercial and political expression in picketing is protected
Vancouver Courthouse case (1988) – SCC held the injunction to prohibit the courthouse from being picketed was a breach of s.2(b), however, was justified under s.1. Assuring unimpeded access to the courts was a sufficiently important objective and the injunction was not overly broad because it left the union free to express themselves in other places.
U.C.F.W. v Kmart Canada (1999) – a prohibition on picketing was a limitation of freedom of expression under s.2(b). However, a complete prohibition on secondary picketing was too broad in prohibiting the peaceful distribution of leaflets. The court struck down the prohibition on secondary picketing.
Pepsi (2002) – Peaceful secondary picketing was to be eliminated from the injunction, however, secondary picketing of the homes of management was the tort of intimidation.
HATE PROPAGANDA
o Hate propaganda is material that promotes hatred against minority groups
o It is prohibited by the Criminal Code. Although this is a limit on expression, it is because the expression is worthless and harmful. Thus, the purpose is to promote the value of equality
R v Keegstra (1990) – No content-based restriction on s.2(b) right. Section 2(b) covered all messages, “however unpopular, distasteful or contrary to the mainstream”. Thus, Keegstra had engaged in anti-Semetic constitutionally protected activity. However, the law was upheld under s.1.
R v Zundel (1992) – he was entitled to be acquitted on the ground that the false-news prohibition (which he denied the Holocaust) was unconstitutional and not protected under s.1.
o Keegstra v Zundel:
o Keegstra – the hate-propaganda was specifically directed at the wilful promotion of hatred against identifiable groups.
o Zundel – false-news law was so broad (denying Holocaust, no hatred toward Jews) that it was difficult to identify an objective that was sufficiently important to justify the limit of freedom of expression.
DEFAMATION
o This tort provides a civil remedy
o Under the content-neutral definition of expression, the defendant’s freedom of expression is abridged by the prohibition against statements that are both FALSE and HARMFUL
o The SCC had the advantage of the U.S.A and Australia causes, which suggested 3 approaches to the modification of common law of defamation in order to provides some constitutional protection for the criticism of public officials
Hill v Church of Scientology [1995]
o Facts: Hill was a crown attorney employed by the A.G in Ontario, who was accused by Church of Scientology of having violated court orders sealing certain documents belonging to the Church that had been seized under search warrant.
o Issue: the CofS held a press conference at which the lawyer described the allegations and announced that contempt proceedings were being brought against Hill. After the proceeding against Hill, Hill sued CofS and its lawyer for defamation.
o SCC Held: upheld Hill’s reward. The Charter did not directly apply to the proceedings (despite Hill’s public position), but that the common law should be reviewed, and modified if necessary, to make it consistent with “Charter values”.
o Therefore, held that the common law of defamation was consistent with Charter values, and did not need to be modified
o The court made one change in the law to defamation to bring it into line with the “Charter value” of freedom of expression: by expanding the defence of qualified privilege that exists in the common law of defamation for reports of judicial proceedings in open courts
o NOTE:
o Canada is out of step with the rest of the common law world in its failure to restrict the right of public figures to sue for defamation
o But in:
Cusson v Quan [2007] - the Ontario Court of Appeal has moved to bring Canada more in line with the rest of the common law world.
o Facts: Newspaper published three critical articles of the claimant’s role (police officer who volunteered in searching for survivors of world trade centre) suggesting that he had actually compromised the rescue effort. Claimant sued newspaper and the journalists
o Issue: whether newspaper’s statements were protected by qualified privilege or similar defence?
o SHARPE CA Held à the no-fault common law of defamation was not consistent with Charter values in its application to the media because of the chilling effect on the freedom of the press. Thus, the best solution was the creation of a new public interest defence of responsible journalism. Where a media defendant can show that it met the standards of responsible journalism in publishing a story that the public was entitled to know about, the defendant will have a defence to a defamation suit even if it turns out that some of the published facts were untrue.
o This is a “half-way house” between the common law’s no-fault rule (which was too restrictive of the freedom of the press) and the traditional qualified privilege of malice (which was insufficiently protective of individual reputations)
o This “half-way house” is essentially what the HL in England has developed as a defence to defamation actions against the media.
o NOTE:
WIC Radio v Simpson [2008]
o Facts: talk show radio host criticised the claimant on air, which was false. Since it injured the reputation of the claimant, it was defamatory. However, the host’s statement was one of opinion, not fact
o Held: no demonstration of truth was called for, and the defence of fair comment was available
Neron v Chambre des notaires dy Quebec [2004]
o Facts: Neron sued CBC for defamation, alleging that the CBC’s second program has injured his reputation
o SCC Held: upheld the trial judge’s decision to award heavy damages to Neron. The “fault” of the CBC in its broadcast were breaches of professional journalistic standards. The CBC was therefore liable for the injury to the claimant’s reputation.
o LEBEL à “in an action for defamation under the Quebec Civil Code, fault is measured against professional journalistic standards”
o BUT doesn’t this ruling loses sight of the principle that the law of defamation must be justified as a reasonable limit on freedom of expression of the press???????
o Neron = statement in the media that lower’s someone’s reputation, however true or not, will expose the publisher to liability for defamation if the publisher was guilty of some lapse of professional journalistic standards.
o Hill = demands that the damaging statement be false
o Certainly, when Hill is but together with Neron, Canada is a uniquely favourable enclave for those who wish to sue the media for defamation
PORNOGRAPHY
o Pornography, including obscenity, is protected expression in Canada.
o Since there are no content-based restriction on s.2(b), it follows that pornography is covered by the guarantee.
R v Butler (1992)
o Facts: he accused, who operated a sex shop, was found guilty of various charges of selling obscene material and possessing obscene material for sale. He challenged the constitutionality of these prohibitions in the Criminal Code.
o SCC Held: the prohibition of obscenity offended s.2(b) of the Charter. The purpose of the effect of the prohibition was “to restrict the communication of certain types of materials based on their content”. Since there are no content-based restrictions on s.2(b), it followed that obscene material was covered by the guarantee. However, the prohibition was upheld under s.1.
o SOPINKA à “the undue exploration of sex contemplated material (1) that portrayed explicit sex with violence, or (2) portrayed explicit sex with violence, but in a degrading or dehumanizing manner by placing women (and sometimes men) in positions of subordination, servile submission or humiliation” .
o Therefore, “it would be reasonable to conclude that there is an appreciable risk of harm to society in the portrayal of such material”
R v Sharpe (2001)
o Followed Butler to hold that there was a “reasonable apprehension of harm”
o SCC held: that the criminal offence of child pornography was a limit of freedom of expression under s.2(b). The s.1 justification turned on whether child pornography was harmful to children. The court held that possession contributed to the market and the market caused the production of child pornography which often involved the exploitation of children. Thus, the prohibition was upheld under s.1.
ACCESS TO PUBLIC PROPERTY
o Does s.2(b) confer a right to use public property as a forum of expression?
o Since the Charter does NOT apply to private action, s.2(b) confers no right to use private property as a forum of expression.
o With respect to public property, s.2(b) is potentially applicable.
Committee for the Commonwealth of Canada v Canada (1991)
o PRINCIPLE: s.2(b)’s freedom of expression may be carried out on any government property considering the expression is compatible with the function of the government place (i.e. library).
o Issue: could the manager of Crown-owned airport prohibit the distribution of political leaflets in the Airport?
o SCC Held: the prohibition was unconstitutional. s.2(b) conferred a right to use public property for expression purposes.
o L’HEUREUX DUBE J à s.2(b) conferred a right to use all governmental property for purposes of expression.
o MC LACHLIN J à proposed similar test as L’HEUREUX DUBE J.
o LAMER CJ à would allow proprietary controls over access or use to the extent necessary to carry out the principal function of the governmental place (a functional test)
o Thus, a rule of silence in the parliamentary library would not violate s.2(b), and would not need to be justified under s.1, because silence is essential to the function of the library.
o Only expression would be compatible with the function of the place, would a limitation on expression offend s.2(b) and require justification under s.1.
o In the Commonwealth case itself, because the distribution of political leaflets was compatible with the airport’s function of serving the travelling public, the plaintiffs had a constitutional right to carry out the practice.
Ramsden v Peterborough (1993)
o Facts: Defendant was a musician who advertised performance by placing posters on hydro poles on public property in the municipality. He was charged with breaching a municipal by-law that prohibited the placing of posters “on any public property”.
o SCC Held: postering on at least some kinds of public property would be protected by s.2(b).
o IACOBUCCI à recognized the municipality’s objectives in enacting the by-law, which were to reduce littering, aesthetic blight, traffic hazards, etc. were sufficiently important to justify some limitation of freedom of expression.
o However, a complete ban on postering on all public property was broader than necessary to accomplish the objectives. The by-law failed the least-drastic-means requirement of s.1, and was unconstitutional.
Montreal v 2952-1366 Quebec (2005)
o PRINCIPLE: Test for whether s.2(b) applies to a public place is whether one would expect constitutional protection for free expression.
o Facts: a strip club in Montreal set up a loudspeaker at its street entrance which it used to broadcast the music and commentary that accompanied the show within. The club was charged under a city by-law that prohibited noise produced by sound equipment that could be heard outside a building. The by-law did not stipulate any particular noise level. The SCC interpreted the by-law as applying only to “noise that adversely affects the enjoyment of the environment”.
o Issue: Although the message originated in a private premises, it was the transmission into the public street that was prohibited by the by-law. Did s.2(b) protect expression that was transmitted into a public street?
o SCC Held: the broadcast was protected by s.2(b), however, the by-law was upheld under s.1
o MCLACHLIN and DESCHAMPS à created a single test from the three approachs in the Commonwealth case. The test for the application of s.2(b) on public property was:
“whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s.2(b) is intended to serve, namely (1) democratic discourse,
(2) truth-finding and
(3) self-fulfillment.”
o In this case, the streets are clearly areas of public concourse, where expression of many varieties has long been accepted. Therefore, the club’s broadcast into the street was protected by s.2(b).
ACCESS TO COURTS
(a) Fair Trial Concerns
(b) Restrictions on reporting
o Freedom of the press includes the freedom to publish reports of proceedings in court.
Edmonton Journal v Alberta (1989) – SCC struck down a statute prohibiting, with some limited exceptions, press reports of matrimonial litigation. The statute violated s.2(b) and could not be upheld by s.1 because the ban was wider than was necessary to safeguard privacy.
Canadian Newspapers Co. v Canada (1988)
o Facts: Criminal Code made provision for a court order prohibiting the media from disclosing the identity of the complainant in a case of sexual assault. The making of the order was mandatory if it was requested by the complainant or the prosecutor; in other cases, the making was discretionary.
o SCC Held: the provision limited the freedom of the press as guaranteed by s.2(b), but the limit was justified under s.1. The purpose of fostering complaints by victims of sexual assault justified some limit on s.2(b). The mandatory nature of the ban did not limit the right excessively, because only a mandatory ban would provide assurance to the complainant that her identity would not be disclosed.
Dagenais v CBC (1994)
o Facts: A court issued an injunction prohibiting the CBC from broadcasting a tv programme of four Catholic priests charged with abuse of children in order to prevent a risk or interference with the fairness of the trial.
o SCC Held: struck down the injunction. The common law (injunction) rule gave too much weight to the right to a fair trial and not enough weight to freedom of expression. The injunction was not justified under s.1 because it was found that “reasonably available alternative measures” to prevent risk to the fairness of the trial existed.
o Dissent: the only effect of the injunction was to delay the presentation of the programme and not being a news programme, no immediacy was necessary.
R v Mentuck [2001]
Issue: Unlike Dagenais the accused opposed the order, invoking his Charter right to a “public” hearing under s.11(d) of Charter, as well as s.2(b) of Charter. And trial judge granted the order to the identities of the officers
o SCC Held: struck down the trial judge’s ruling and held that the Crown had to establish “a serious risk to the proper administration of justice and that the reasonable alternative measures will not prevent the risk”. The court therefore held that this test was satisfied as to the identities of the undercover police officers, because disclosure of their identities would create a serious risk to police operations in which those same officers were engaged.
o Thus, the publication ban was upheld as a justified limit on freedom of the press ONLY with respect to the identities of the police officers.
o Followed in:
Toronto Star Newspapers v Ontario [2005]
(c) Restriction on Access
o Freedom of the press also included the right of the press and the public to be present in court.
Re Southam and the Queen (No.1) (1983) – Ontario CA struck down the provision providing for “the trials of children shall take place without publicity” because it was an absolute ban and failed the least restrictive means of attaining its objective, the interests of the children.
o There is a provision of the Criminal Code that provides that proceedings against an accused are to be held “in open court”, but the provision goes on to confer on the trial judges the power “to exclude all or any members of the public from the court room for all or part of the proceedings”.
o This power is exercisable if the judge forms the opinion that access should be restricted in the interest of “the proper administration of justice”:
CBC v New Brunswick (1996)
o PRINCIPLE: if a power is discretionary and not absolute, it will satisfy least drastic means test.
o Facts: a judge excluded the media from a portion of a trial.
o SCC Held: any power excluding the media from the court room was a breach of s.2(b), however the provision was upheld under s.1 because the power was discretionary, and thus, no broader than necessary.
o LAFOREST à the kind of evidence that establishes sexual assault charges, even when the victims are very young, should not normally be regarded as to sufficient reason to deny access to the court room, and any hardship that prejudicial publicity would impose on the accused should be given little wait at the sentencing state, when the accused had been found guilty.
o The Criminal Code provides for a “pre-inquiry” by a justice of the peace into whether to commence criminal proceedings against a person against whom and info has been laid.
o The person accused is not entitled to be present at a pre-inquiry, and any hearing is also closed to the public:
Southam v Coulter [1990]
o Facts: A private citizen had sworn an information against several cabinet ministers and senior police officers alleging bribery and corruption. The press were anxious to attend the pre-inquiry into the charges.
o CA Held: the protection of a falsely accused person and to a properly accused person that the subsequent trial would be prejudiced by pre-trial publicity, were values that justified the closure of the pre-inquiry. The court upheld the close under s.1.
Re Vancouver Sun [2004]
o Facts: SCC reviews a “judicial investigative hearing” that had been held in camera (closed to the public) by a superior court judge. This kind of hearing was an innovation authorized by the Anti-Terrorism Act enacted by 2001. The judge closed the hearing to the public and the press.
o Issue: The Vancouver Sun applied to be given access to the hearing, and when application was refused, they appealed to the SCC
o SCC Held: the “open court principle” was guaranteed by s.2(b) of Charter.
o It could be limited under s.1 only if the standards of justification established in Dagenais and Mentuck were satisfied.
o Although those cases concerned publication bans, the same principle applied to orders limiting access to courts proceedings.
o Those principles were:
(a) That the order is “necessary in order to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk”
(b) That “the salutary effects of [the order] outweigh the deleterious effects on the rights and interests of the parties and the public”
ACCESS TO LEGISLATIVE ASSEMBLY
New Brunswick Broadcasting Co. v Nova Scotia (1993) – Parliamentary privilege included the power of a legislative assembly to exclude “strangers” from its chambers.
CONTEMPT OF COURT
o A contempt of court is an act that offends against the administration of justice.
o A failure to obey a court is the most common form of contempt
o Even if the effect of the contempt proceedings were to enforce a restraint on freedom of expression (such as an injunction against picking), the Charter cannot be called in aid to resist the contempt proceedings.
o A “criminal contempt” is one where the offence to the administration of justice has a public significance that goes beyond the immediate parties.
o Although criminal contempt is a matter of common law, and the Charter does not generally apply to the common law, the public character of criminal contempt makes the Charter applicable
R v Kopyto (1987) – making comments about the judge and RCMP after the trial was a constitutionally protected expression and a law restricting such criticism could not be justified under s.1 (Ontario CA).
PUBLIC SERVICE
o Public servants in all jurisdictions in Canada are subject to restrictions on their partisan political activities. This is because the entire public service is a professional career service that is suppose to serve governments of all political stripes with equal diligence, and to be impervious to partisan political considerations in the administration of government programmes.
o Political neutrality of service is necessary for its effective functioning, both in its relationships with its political masters and in its relationships with the public.
o The general rule of neutrality is widely if not universally accepted, but it does not provide a sure answer to the question of how much political activity by an individual public servant could be tolerated without serious risk to the integrity of a service.
o OPSEU v Ontario [1986]– The SCC held that the province had the power to regulate its own public service, and in pursuit of political neutrality the regulation could extend to restrictions on federal as well as provincial political activity.
MANDATORY LETTERS OF REFERENCE
ELECTION EXPENDITURES
o Restrictions on election expenditures are INDIRECT restrictions on political speech, because expenditures are required to purchase time or space in the media for campaign messages
o These restrictions are therefore bound to diminish the capacity of candidates to communicate their ideas, and thereby diminish the quantity of political speech
VOTING
o The right to vote is guaranteed by s.3 of Charter
ACCESS TO GOVERNMENT
o In Haig – it was questioned whether s.2(b) imposed positive duties on governments, in this case, a duty to fund and consult with particular groups? It was held: “the principle that generally the government is under NO obligation to fund or provide a specific platform of expression to an individual or group”
Life, Liberty and Security of the Person s.7
DISTRIBUTION OF POWERS OVER LEGAL RIGHTS
s.1(a), Canadian Bill of Rights – the right of the individual to life, liberty and security of the person and enjoyment of property, and the right not to be deprived thereof except by due process.
s.2(e), Canadian Bill of Rights – right to a fair hearing.
SECTION 7 OF CHARTER
APPLICATION OF S.1
o NO! A volition of fundamental justice could NEVER be justified under s.1
o BUT:
Some court has routinely moved on the issue of s.1 justification BEFORE finding a breach of s.7.
Andsome judges have held that a particular breach of s.7 was justified under s.1
BENEFIT OF S.7
(a) Corporation
o Section 7 is applicable to “everyone”. However, the SCC has held that in the context of s.7 “everyone” does NOT include a corporation (Irwin Toy).
o s.7 does not apply to corporations, because “liberty” does not include corporate activity.
(b) Immigrants
o “Everyone” is s.7 includes immigrants to Canada (Singh).
o The argument that such a procedure would make it impossible to deal expeditiously with the many thousands of refugee claimants who arrive in Canada each year was rejected as inadmissible “utilitarian” or “administrative” concern, which could not be permitted to vitiate individual rights.
(c) Foetus
o “Everyone” in s.7 does NOT include a foetus, and so a foetus is not entitled to a right to life.
o In fact, the SCC used s.7 to strike down restrictions on abortion, the reasoning being that the restriction deprived the mother of her right to liberty or security of the person (Morgentaler (No.2)).
BURDEN OF S.7
o S.7, like other charter rights, applies to “governmental action”
LIFE
o S.7 protects life, liberty and security of the person.
o Abortion is sometimes characterized as implicating the “right to life: meaning,
o SCC has used s,7 to strike down restrictions on abortion
LIBERTY
(a) Physical Liberty
o “Liberty” certainly includes freedom from physical restraint. Any law that imposes the penalty of imprisonment, whether the sentence is mandatory or discretionary is by virtue of that penalty a deprivation of liberty, and must conform to the principles of fundamental justice.
o Other deprivations of liberty attracting the rules of fundamental justice:
Statutory duties to submit to fingerprinting, to produce documents, to give oral testimony, and not to loiter in or near school grounds, playgrounds, public parks and bathing areas.
May v Ferndale Institution (2005) – s.7 applied to a review to transfer a prisoner in the federal penitentiary from a minimum-security to a medium-security.
(b) Economic Liberty
o The product of s.7, in which liberty must be interpreted as NOT INCLUDING:
- property
-freedom of contract and
-economic liberty
(c) Political Liberty
o “Liberty” does NOT INCLUDE:
-freedom of conscience and religion,
-freedom of expression,
-freedom of assembly,
-freedom of association,
-the right to votes and
-to be a candidate for election, or
-the right to travel
SECUTITY OF THE PERSON
Canadian Foundation for Children, Youth and the Law v Canada (2004)
o Issue: a challenge was brought to the provision of the Criminal Code that provides a defence to a charge of assault for teachers and parents who use “reasonable” force “by way of correction” against the children in their care. The provision exposed children to force that would amount to criminal assault if committed against an adult.
o SCC Held: the provision adversely affected the security of the person of the children. However, the provision was upheld on the ground that there was no breach of the principles of fundamental justice.
R v Morgentaler (No.2) (1988)
o Issue: the Criminal Code’s restriction on abortion, which required that the abortion be approved by the therapeutic abortion committee of an approved hospital.
o SCC Held: the restriction was unconstitutional, a deprivation of security of the person. Evidence showed that the requirement of approval by a therapeutic abortion committee restricted access to the procedure of an abortion (because some hospitals would not set up the required committees) and caused delays in treatment, which increased the risk to the health of the woman. Thus, the risk to health that was caused by the law was a deprivation of security of the person.
Chaoulli v Quebec (2005)
o SCC Held: excessive waiting times in the public health care system of Quebec caused unnecessary pain and stress to those awaiting surgery and other procedures. This was a breach of the right to security of the person (as well as to life, since the risk of death was sometimes increased by the prolonged delays).
Rodriguez v British Columbia (1993)
o Facts: plaintiff who was terminally ill challenged the constitutionality of the Criminal Code offence of assisting a person to commit suicide.
o Rodriguez’s argument: the law deprived a disabled person of the ability to commit suicide (which was not an offence); she wanted to commit suicide, but could not do so without medical assistance because she was (or soon would be) too disabled by her illness.
o SCC Held: the removal of an aspect of the control over her body was a deprivation of security of the person under s.7, however, the law did not offend the principles of fundamental justice.
New Brunswick v G(J) (1999)
o PRINCIPLE: psychological integrity is capable of affected security of the person.
o SCC Held: an application by the state to remove children from a parent and place them under the wardship of the state affected the security of the person of the parent. Security of the person was affected, because the government action would constitute “a serious interference with the psychological integrity of the parent.
o The result was that s.7 applied, and the removal proceedings had to be conducted in accordance with the principles of fundamental justice, which in this case led the court to order that the parent be represented by state-funded counsel.
Blencoe v BC (2000)
o PRINCIPLE: state induced psychological stress (due to a delay) would be a breach of security of the person (but not in this case).
PROPERTY
o s.7 affords no guarantee of compensation or even a fair procedure for the taking of property by government.
FUNDAMENTAL JUSTICE
(a) Procedure and Substance
o A deprivation of life, liberty or security of the person is a breach of s.7 of the Charter only if the deprivation is not in accordance with “the principles of fundamental justice”. Thus, this means that s.7 requires a balancing of interest’s calculation before it reaches s.1 justification.
o Section 7 is structured differently than the other section.
o There is a qualification of the rights build right into the provision (“except in accordance with the principles of fund justice (POFJ)”); this is similar to structure of other ss. + s.1.
o The s.7 standard appears to be stricter than s.1.
o NOTE:
B.C. Motor Vehicle Reference (1985)
o PRINCIPLE: Fundamental justice covered substantive and procedural justice AND poor definition of ‘fundamental justice’.
o Facts: The BC government sent a reference to determine the validity of a provision in the province’s Motor Vehicle Act which made it an offence to drive a car while prohibited from driving or while one’s driving licences was suspended. The Act imposed a mandatory term of imprisonment on anyone found guilty of the offence.
o Issue: a provision declared that “absolute liability” in which “guilt is established by proof of driving, whether or not the defendant knew of the prohibition or suspension”.
o SCC Held: it was a breach of fundamental justice to impose a term of imprisonment for an offence that lacked the element of mens rea. Violation not saved by s.1. Justification under s.1 only allows ab liab combo with jail time in “exceptional cases”, ie. outbreak of war, natural disasters, etc. These conditions are only temporary. Thus s.7 violations will only be saved in very rare cases.
o Thus, s.7 prohibits substantive as well as procedural injustice.
o The only definition of fundamental justice that was provided by the court was Lamer J.’s assertion that “the principles of fundamental justice are to be found in the basic tenets of the legal system”.
Rodriguez v BC (1993) – assisted suicide case.
o SOPINKA à the principles of fundamental justice must be ‘fundamental’ in the sense that they would have general acceptance among reasonable people”, and he found no such consensus on the issue of euthanasia.
Dissent: the Criminal Code provision was arbitrary or unfair, because it precluded a disabled person (who would need assistance) from committing suicide while permitting an able-bodied person to do so. They would have struck down the prohibition on assisting suicide, thereby legalizing euthanasia despite the absence of any legislation to regulate the practice.
Wilson v British Columbia (Medical Services Commission) (1988) (BC CA)
o “It may be argued that if movement within the province is a protected freedom that such right must be found in s.6. We do not agree. The Charter is not a statute containing a number of watertight compartments. It is not a document which is to be given a narrow and legalistic interpretation”.
o “We are of the opinion, therefore, that the geographic restrictions imposed by government on the right to practice medicine in BC constitute a violation of the right to liberty protected by s.7 unless that right has been removed in accordance with the principles of fundamental justice, or unless the deprivation can be demonstrably justified under s.1 of the Charter”.
ABSOLUTE AND STRICKT LIABILITY
(a) Categories of Offences
R v City of Sault Ste. Marie (1978) – DICKSON for the SCC divided offences into 3 categories:
(1) Absolute liability – the offence consists simply of doing the prohibited act.
o cannot have absolute liability if imprisonment is a possible consequence.
(2) Strict liability – the offence again consists simply of doing the prohibited act; however, it is a defence if the defendant proves to the civil standard of the balance of probabilities that he or she exercised reasonable care.
o if offence is “regulatory” and maintains imprisonment as a consequence, law will be valid with a due diligence offence. If offence is a “true crime”, than mens rea is required.
(3) Mens rea – the offence consists not only of doing the prohibited act, but of doing so with the guilty intent.
(b) Absolute liability offences
B.C. Motor Vehicle Reference (1985)
o PRINCIPLE: if an absolute liability offence carries an imprisonment penalty, it must abide by the principles of fundamental justice (i.e. be given a trial) or else it violates s.7. Thus, cannot have absolute liability if imprisonment is a possible consequence.
o Issue: A section of the B.C. Motor Vehicle Act made it an offence to operate a motor vehicle while one was prohibited or suspended from driving. A subsection explicitly stated that the offence was to be interpreted as “an absolute liability offence, for which guilt is established by proof of driving, whether or not the defendant knew of the prohibition or suspension.
o SCC Held: The offence was a violation of s.7. Absolute liability was a denial of “the principles of fundamental justice”. Since the offence carried a short term of imprisonment, a conviction would mean a deprivation of “liberty”.
o Sequel to B.C. Motor Vehicle Reference:
R v Pontes (1995)
o PRINCIPLE: if no penalty of imprisonment exists, then an absolute liability offence need not comply with the principles of fundamental justice.
o The result was that there was no penalty of imprisonment for the offence of driving while prohibited, therefore, there was no breach of liberty under s.7 and no need for the law to comply with the principles of fundamental justice.
o Thus, as long as no sentence of imprisonment is provided for, it is still possible to create offences of absolute liability.
Rv Hess (1990)
o PRINCIPLE: cannot have absolute liability if imprisonment is a possible consequence (breach of s.7).
o Facts: A provision in the Criminal Code made it an offence for a male person to have intercourse with a female person under the age of 14 whether or not he believes that she is fourteen years of age or more. The offence carried a penalty of imprisonment.
o SCC Held: an absolute liability offence that carried the penalty of imprisonment was a breach of fundamental justice in violation of s.7.
Levis v Tetreault (2006) – “Absolute liability offences still exist, but they have become an exception requiring clear proof of legislative intent”.
(c) Strict liability offences
R v Wholesale Travel Group (1991)
o PRINCIPLE: element of fault must be subjective mens rea if the offence is a true crime, but need only be negligence (departure from an objective standard of due diligence) if the offence is a regulatory offence (i.e. mislead advertising as in this case).
o Facts: the corporation was charged with the offence of false or misleading advertising under the Competition Act. The Act made clear that there was no requirement of mens rea: the only defence was one of due diligence (reasonable care), and the burdern of proving due diligene rested with the accused (if criminal burden is on the prosecution). The penalty for the offence was a fine or imprisonment.
o Issue: the accused argued that it was a violation of fundamental justice to place an individual in jeopardy of imprisonment for any lesser fault than mens rea.
o SCC Held: The court classified the offence as a “regulatory offence” and said it was sufficient that the offence was premised on negligence (lack of due diligence) rather than mens rea.
o In the case of a “regulatory offence” or a “public welfare offence”, including those that carry the penalty of imprisonment, fundamental justice does not require that mens rea be an element of the offence. Fundamental justice is satisfied if there is a defence of reasonable care (due diligence), and the burden of proving a reasonable care (to the civil standard) may be cast on the defendant. In the case of “true crimes”, however, fundamental justice requires that mens rea be an element of the offence, and the burden of proving mens rea (to the criminal standard) would have to be the Crown.
o HOWEVER, the court seems to be abandoning its silly distinction between true crimes and regulatory crimes (Hogg).
MURDER
R v Vaillancourt (1987)
o PRINCIPLE: mens rea is required in relation to murder, if not, then violation of s.7.
o Facts: the accused was charged with murder as the result of a poolroom robbery in which the accused’s accomplice shot and killed a customer of the poolroom. He was charged under the felony-murder branch;
o SCC Held: the felony-murder rule was a violation of fundamental justice under s.7. Before an accused can be found guilty of murder, s.7 required that there be mens rea with respect to the death.
(4) It was the extreme stigma and severe punishment associated with murder that entailed the requirement that the accused have some level of mens rea with respect to the death.
UNFORESEEN CONSEQUENCES
o Where an accused is charged with the offences of murder or attempted murder, then it is a requirement of fundamental justice that the accused must have INTENDED or FORESEEN the death of the victim
o However, the court indicates that this requirement of subjective foresight of the consequences of an unlawful act applies only to “very few” offences identified by reference to the “social stigma”
R v De Sousa [1990]
o Facts: while in a fight, D threw glass bottle that shattered against wall causing glass fragments to injure an innocent bystander. D never intended this nor foresaw the injury
o S.7 is applicable because jury used the Criminal Code which would carry a penalty of imprisonment of 10years
o SCC Held: D was convicted of unlawfully causing bodily harm despite his lack of intention or foresight with respect to the bodily harm.
“the only mental element that was constitutionally required for the offence of unlawfully causing bodily harm was embedded in the word “unlawfully”. That required an unlawful act. Thus, NO CONSTITUTIONAL REQUIREMENT THAT INTENTION, either objective or subjective, EXTENDED TO THE CONSEQENCES OF UNLAWFUL ACTS IN GENERAL”
o In other words, under s.7 of the Charter, it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused.
INVOLUNTARY ACTS
(a) Automatism
o A person should not be convicted of a criminal offence for an act that is not voluntary
R v Parks [1992] – sleep-walker not liable for death or injury
o A person who is awake and sane may suffer a “psychological blow” that induces a state of automatism, causing him to commit acts of violence that are involuntary
R v Stone [1999] – stabbing and killing wife as a result of her constant taunting did not count as going into a state of automatism
o For a defence of automatism to succeed it is only necessary for a defence to raise a reasonable doubt that the accused acted while in a state of automatism
o With regards to s.7, the law respecting automatism now has constitutional status, and any attempt by Parliament to abolish the defence or restrict its availability would be unconstitutional, unless the limited law could be justified under s.1
(b) Duress
o Criminal Code s.17 makes duress an excuse for the commission of an offence: an offence committed “under compulsion” is excused from criminal liability.
o However, s.17 stipulates that compulsion must take the form of threats of immediate death or bodily harm from a person who is present when the offence is committed”.
o See R v Ruzic [2000] where SCC said that s.7 of the Charter was applicable because the offence carried the penalty of imprisonment...
(c) Intoxication
o self-induced intoxication is NOT a defence to a criminal charge
o MacAskill [1931] (the defence of intoxication requires evidence that the accused was so intoxicated that he was incapable of forming the required specific intent)
R v Daviault [1994]
o PRINCIPLE: S.7 requires that EXTREME INTOXICATION be a defence to a criminal charge
o SCC Held: s.7 and a.11(d) were offended by the rule that self-induced intoxication was no defence to a criminal charge.
o CORYà The Charter required that self-induced intoxication, if it was so extreme as to be akin to automatism, must free the accused from criminal liability
o BUT IN:
R V Robinson [1996]
o SCC turned its attention to offences of SPECIFIC INTENT. This is a murder case, which is an offence of specific intent because the intention to kill (or foresight of death) is a specific intent that must be established for conviction
o Facts: Robinson had been heavily drinking before first beating his victim with a stone, and then going and getting a knife and stabbing the victim several times in the stomach
o PRINCIPLE: Using the principle from MacAskill would offend s.7’s requirement of mens rea and s.11(d)’s presumption of innocence.
o SCC HELD: overruled MacAskill and held that, IF DRUNKENNESS RAISED A REAONABLE DOUBT AS TO WHETHER THE ACCUSEED POSSESSED THE REQUISITE SPECIFIC INTENT, THE ACCUSED WAS ENTITLED TO BE ACQUITTED (even if there is no doubt that the accused possessed the capacity to form the requisite intent)
Extreme drunkenness + Reasonable doubt of whether or not there is intent = right to be acquitted
OVERBROAD LAWS
R v Heywood [1994]
o PRINCIPLE: The DOCTRINE OF OVERBREADTH is a breach of principles of fundamental justice, and therefore a basis for finding of unconstitutionality in the law that affects life, liberty or security of the person
o Requires that the terms of a law to be no broader than is necessary to accomplish the purpose of the law.
o But the purpose of the law is a judicial construct, which can be defined widely or narrowly as the reviewing court wishes.
Ontario v Canadian Pacific [1995]
o SCC Held: a NEW doctrine of overbreadth had to be considered, which involved assessing the impact of the law on the most innocent possible offender
o In R v Demers [2004] the SCC said that the OVERBREADTH challenges worked appropriately for an accused person who was not permanently unfit to stand trial
DISPROPORTIONATE LAWS
R v Malmo-Levine [2003]
o SCC established a NEW doctrine of “DISPROPORTIONALITY” which is a breach of principles of fundamental justice, and therefore a basis for a finding of unconstitutionality in a law that affects life, liberty, or security of the person. Therefore, the court must determine
(1) whether the law pursues a “legitimate state interest”; and if so,
(2) whether the law is grossly disproportionate to the state interest
o This doctrine, like its sister doctrine of “overbreadth”, is really an authority for the court to undertake a review of the wisdom of legitimate policy
ARBITRARY LAWS
Chaoulli v Quebec (2005)
o Facts: a constitutional challenge was brought to Quebec’s prohibition on the purchase of private health care insurance. The purpose of and effect of the prohibition was to make the universal public health care plan exclusive. The evidence established that there were excessive delays in the system.
o SCC Held: SCC struck down the Quebec prohibition and unanimously held that the failure to provide timely care in the public system led to breaches of the right to life (since delays sometimes increased the risk of death) and the right to security of the person (since delays prolonged pain and stress).
o Issue: In these circumstances, was a prohibition on the purchase of private health care insurance a breach of the principles of fundamental justice under s.7?
(5) The judges were split even on the issue because Deschamps declined to decide the issue since she held the law was in breach of the Quebec Charter and that it was not necessary to consider the Canadian Charter.
(6) Thus, it will take another case to determine the validity of the legal restrictions on access to private health care that exists in the other provinces and territories.
VAGGUE LAWS
(a) Void for Vagueness
o Vagueness, in a law that deprives a person of life, liberty or security of the person, is a breach of s.7 because it is a principle of fundamental justice that a law should not be too vague.
R v Morales (1992)
o PRINCIPLES: a law will not be void for vagueness if legal debate can occur as to the application of the provision.
o Issue: Criminal Code provision that authorized a judge to deny bail to an accused person on the ground “that his detention is necessary in the public interest”.
o Argument: this provision infringes s.11(e), right not to be denied reasonable bail without just cause.
o SCC Held: The law was void for vagueness. The “public interest” criterion would authorize a “standardless sweep”, because under that criterion a court can order imprisonment whenever it sees fit. The bail provision provided “no guidance for legal debate”, and was therefore void for vagueness.
Ontario v Canadian Pacific (1995)
o PRINCIPLE: a law will not be void for vagueness if legal debate can occur as to the application of the provision.
o Issue: A challenge was brought to a provision in Ontario’s Environmental Protection Act, which made it an offence to discharge a “contaminant” into the “natural environment” that could impair the quality of the environment ...
o CP’s argument: the controlling concepts of “contaminant” and “natural environment” were so vague that the offence was void for vagueness under s.7.
o SCC Held: Although the legislation was very broad and general, its scope was “reasonably delineated” so that “legal debate can occur as to the application of the provision in a specific fact situation”. That was all that s.7 required and the challenge failed.
(b) Standard of Precision
o The constitutional standard of precision that a law must meet in order to avoid the vice of vagueness is established by GONTHIER in the Nova Scotia Pharmaceutical case:
a) whether the law is “intelligible”
b) whether the law sufficiently delineates “an area of risk”, and
c) whether the law provides “an adequate basis for legal debate”
o It is the “LEGAL DEBATE” Test that has been preferred and applied by the SCC in subsequent cases
o Thus, the law is unconstitutionally vague ONLY IF it cannot, even with judicial interpretation, provide meaning standards of conduct
d) Application to Other Charter Rights
o Vagueness, in a law that deprives a person of life, liberty or security, is a breach of s.7 because it is a principle of fundamental justice that a law should NOT bee too vague.
o R v Morales [1992] – makes it clear that the doctrine of vagueness is NOT confined to s.7, but applies to ANY Charter right that carries an implicit requirement that laws not be vague (i.e. s.11(e) “just cause” standard called for legislative precision)
WRONG LAWS
RIGHT TO SILENCE
o Right to silence – protected under s.7.
o s.11(c) – an accused person is not a compellable witness at his or her own trial.
o The following cases make clear that a statutory compulsion to give testimony is a deprivation of liberty under s.7, which gives rise to a right against self-incrimination, which is a principle of fundamental justice.
R v Herbert (1990)
o PRINICPLE: Once right to silence in invoked, only voluntary confessions will suffice as evidence.
o Facts: The accused had been arrested and advised of his right to counsel. He did retain counsel, and he advised the police that he did not wish to make a statement. However, he was then placed in custody with an undercover police officer, disguised as another prisoner, who engaged the accused in conversation, and to whom the accused made an incriminating statement.
o SCC Held: Since the accused’s statements had been elicited by the questioning of the undercover police officer. In effect, the police had used a trick to subvert the accused’s election not to make a statement to the police. This was a breach of s.7 and the statement was excluded.
o A voluntary statement to another prisoner, or even to an undercover police officer, would not offend the right if the police officer did not actively elicit the statement.
R v Broyles (1991)
o Facts: The accused made a statement while in custody to a friend who visited him in the jail. Unknown to the accused, the friend had been recruited as a police informer.
o SCC Held: The statement was obtained in breach of the right to silence and the statement was excluded. The informer was acting as an agent of the state, and should be covered by the same constitutional restraints as a police officer. Since the recording showed that the informer had actively elicited the statement by his questions to the accused, it was obtained in breach of the right to silence.
R v Fitzpatrick (1995)
o PRINCIPLE: if accused voluntarily consented to a practice, the info. can be used against him.
o Issue: The federal Fisheries Act requires records be kept by fishers and supplied to government on a daily basis detailing their daily catch. Could these records be used as evidence at the trial of a fisher for the offence of overfishing which carried the penalty of imprisonment?
o SCC Held: the records could be used at the trial. There was no breach of s.11(c) because the accused was not being compelled to be a witness at his own trial. In the context of a regulatory scheme to which the accused had voluntarily submitted by engaging in the business of fishing, fundamental justice did not provide an immunity against the use of statutorily compelled information.
FAIR TRIAL
(a) The Right to a Fair Trial
o The principles of fundamental justice obviously require that a person accused of a crime receive a fair trial. In this respect, s.7 overlaps with s.11(d), which also guarantees to a person charged with an offence “a fair and public hearing by an independent and impartial tribunal”.
o Section 7 is, however, wider than s.11(d), because s.7 also applies to civil and administrative proceedings where they affect life, liberty or security of the person.
New Brunswick v G(J) – an application by the state to remove children from the custody of a parent affected the parent’s security of the person, and made s.7 applicable. The principles of fundamental justice required that a fair hearing be provided, which in turn required that the parent be provided with representation by state-funded counsel (in order to satisfy the fair hearing requirement under s.7).
(b) Full Answer and Defence
o R v Cook [1997] – SCC held that the Crown had a discretion as to the witnesses it chose to call, and the accused’s right to make full answer and defence was protected by his right to cross-examine those witnesses that the rown did call
(c) Pre-trial Disclosure
o Criminal proceedings are unlike civil proceedings in that there is no statutory provision for pre-trial discovery in criminal proceedings.
o In most jurisdictions a practice of voluntary disclosure by the Crown developed
R v Stinchcombe [1991]
o SCC held that pre-trial disclosure by the Crown of all info relevant to the conduct of the defence is a constitutional obligation, entitled by the accused’s rights to make full answer and defence.
o S.24(1) authorizes an “appropriate and just remedy” for a breach of the Charter. For default in pre-trial disclosure by the Crown, the appropriate and just remedy would normally be an order for disclosure, coupled with an award of costs to the accused.
NOTE:
è If a failure to disclose evidence to the defence is a deliberate or negligence default by the prosecurot, this will also be a breach of professional responsibility, exposing the prosecutor to discipline from provincial law society
(d) Pre-trial Disclosure by Third Party
R v O’Connor [1995]
o SCC Held: access to private records in possession of third parties could be necessary to an accused’s right to make full answer and defence. This production must be governed by a procedure...the defence must apply to the trial judge for the full disclosure order, and must establish on a balance of probabilities that the records are “likely relevant” in making full answer and defence.
R v McClure [2001]
o Solicitor-client privilege
o SCC Held: because the litigation file contained communications between a solicitor and his client for the purpose of providing legal advice or assistance, was covered by solicitor-client privilege. This means that, as a general rule, the privilege-holder could refuse to produce it in court proceedings.
o Held: because of the fundamental importance of solicitor-client privilege, the privilege would yield to the accused’s Charter right to full answer and defence ONLY IF the accused’s innocence was at stake
o 2 part process for trial judge to determine when the innocent-at-stake test passed:
(1) whether there was evidentiary basis to condlude that the privileged records COULD raise a reasonable doubt as to guilt. If passed, then;
(2) inspects records privately to determine if they were LIKELY to raise a reasonable doubt as to guilt
(e) Preservation of Evidence
o The Crown is under a duty to the accused to PRESERVE relevant evidence once it comes into the possession or the control of the Crown
o R v La [1997] – SCC held that the loss of a tape and the consequent failure to disclose it to the defence, was NOT a breach of s.7 Charter. A breach would occur if the Crown could not provide a satisfactory explanation for the loss
o Thus, the accused’s right to disclosure is not so broad as to cause a Charter breach every time evidence is lost or destroyed
R v Carosella [1997] – Parliament has now prohibited the disclosure to the accused in sexual-assault cases of confidential records
(f) Statutory Limits on Pre-trial Disclosure
o After O’Connor and Carosella, Parliament enacted legislation that placed severe restrictions on the disclosure of confidential records is sexual assault cases. The statutory requirements purport to place the procedure for the disclosure of third-party records...the legislation applies to ALL confidential records (with exemption of records created during police investigation).
o A confidential record will be produced for inspection by the court if the defence can establish both that it is:
(1) likely relevant; and
(2) its production is necessary in the interests of justice
o Once judge determines that records satisfy 1, and 2, the judge will order them to be produced, inspect the records privately, and determine whether (with reference to 8 factors 47.82), it isin the interests of justice to release some or all records to the defence
FAIR ADMINISTRATIVE PROCEDURES
Equality Rights s.15
DISTRIBUTION OF POWERS
o The real threat to equality in Canada comes not from legislative and official action, but from discrimination by private persons
CANADIAN BILL OF RIGHTS
o s.1(b) of the Canadian Bill of Rights applies only to federal Parliament and was superseded by s.15 of the Charter on April 17, 1985, and which NOW applies to BOTH the federal Parliament and the Provincial Legislatures
o The SCC developed a consistent definition under s.1(b) which relied on the cryptic notion of a “valid federal objective” (if a law pursued a valid federal objective, then it was NOT in breach of s.1(b).
o But the language of valid federal objective has been banished and replaced by a NEW doctrine (the indigenous Canadian doctrine)
AMERICAN BILL OF RIGHTS
o The language of s.15 of the Charter and its interaction with ss.1 and 28 call for the development of indigenous Canadian doctrine
SECTION 15 OF THE CHARTER
o s.15(1) – Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
o “in particular” = the named grounds are not exhaustive.
o “an individual” = probably excludes a corporation.
o “Law” = s.15 applies to the same range of governmental action as other Charter rights. The range is that defined in s.32
o s.15(2) – affirmative action/reverse discrimination.
o NOTE:
è s.15 came into effect on April 17, 1985.
è s.28 – guarantees rights equally to males and females.
o The power of legislative override (s.33) applies to s.15, but NOT to s.28.
o It is possible that even the limitation clause (s.1) does NOT qualify s.28, having regard to s.28’s opening words, “Notwithstanding anything in this Charter”.
APPLICATION OF S.15
(a) Individual
o The BENIFIT of the equality rights in s.15 is conferred upon “an individual”
(b) “Law” in s.15
o The BURDEN of the equality rights, like all other Charter rights, is imposed by s.32 on the Parliament and government of Canada and the Legislatures and government of each province.
o QUESTION:
o Does the reference to “law” in the various formulations of the equality rights in s.15 have the effect of narrowing the application of s.15 so as to exclude governmental action that is NOT law?
R v S.(S) [1990]
o PRINCIPLE: s.15 applies only to the establishing law itself.
o Facts: federal Young Offenders Act authorized the A.G of each province to establish a programme of “alternative measures” to divert young offenders away from proceedings in the courts. The diversion programmes were established in 9 provinces, but not in Ontario
o Issue: a young person accused of a crime in Ontario argued that the failure of the A.G to establish a programme in Ontario was a violation of the accused’s equality rights under s.15.
o SCC HELD: rejected this argument on the ground that s.15 applied only to “the law” and NOT to an exercise of discretion conferred by law, but only to the establishing law itself!
o Therefore, the A.G on Ontario’s decision could NOT be impeached under s.15.
(c) Private action
o s.32 excludes private action from the Charter.
o Thus, this means that s.15 does NOT apply to private acts of discrimination.
i.e. where an employer hires only male employees
i.e. where a landlord rents only to white people, etc.
o However, in all Canadian jurisdictions, Human Rights Codes have been enacted that prohibit private acts of discrimination in employment, accommodation and the provision of services.
o The Codes are enforced by the human rights commissions.
o The Codes are statutes but they do not enjoy constitutional status.
o SCC has held that a HR Code takes precedence over other statutes.
o The HR Codes, as statutes, are themselves subject to the Charter of Rights:
Blainey v Ontario Hockey Association (1986)
o Facts: a girl, who had been excluded by the Ontario Hockey Association from a boy’s hockey team, challenged a provision of the Ontario HR Code which generally prohibited discrimination by sex, but made an exception for single-sex sports teams.
o CA Held: the exception was a breach of s.15 because it denied the claimant the benefit of the HR Code by reason of her sex.
o Importance: The Charter of Rights did NOT apply directly to the action of the Ontario Hockey Association because it was private. But by extending the scope of the HR Code to action that the Code left unregulated, the Charter did have an indirect impact on private action.
o This also relates to McKinney v University of Guelph
EQUALITY
(a) Four Equalities of s.15
o s.15 provides that every individual is
1-equal before the law
2-equal under the law
3-has the right to the equal protection of the law
4-has the right to equal benefit of the law
(b) Absolute equality
o What is meant by a guarantee of equality? It cannot mean that the law must treat everyone equally.
i.e. The Criminal Code imposes punishments on person convicted of criminal offences; no similar burdens are imposed on the innocent.
i.e. Education Acts require children to attend school; no similar obligation is imposed on adults.
o Indeed, every statute or regulation employs classifications of one kind or another for the imposition of burdens or the grant of benefits
o Laws never provide the same treatment for everyone!
(c) Aristotle’s Definition
o ARISTOTLE à persons who are alike (similarly situated) should be treated alike.
o This is known as the“similarly situated” test = a denial of equality was made out if it could be shown that the law accorded the complainant worse treatment than others who were similarly situated.
o But the problem with this is: too high a level of generality to be useful
(d) Similarly Situated
o Before the SCC decided the Andrews case, the courts were applying the Aristotelian principle of equality known as the “similarly situated” test
o The test does not supply the crucial criteria that are required to determine who is similarly situated to whom, and what kinds of differences in treatment are appropriate to those who are not similarly situated.
o The test is deficient in the sense that it provides too little guidance to a reviewing court
(e) Formal and Substantive Equality
o The most common criticism of the “similarly situated” definition of equality is that it can mask discrimination that occurs indirectly rather than directly.
o A theory that only covers the DIRECT case is often described as “formal equality”, and is often attributed to the similarly situated definition (and to Aristotle)
o WINTEMUTE à “formal equality is not enough. It is also necessary to guarantee “substantive equality”
o Substantive Equality = a theory of equality that will capture INDIRECT as well as DIRECT discrimination
(f) Reasonable Classification
o The American doctrine of “reasonable classification” is like the “similarly situated” test in that it operates at a very high level of generality.
(g) Valid Federal Objective
o BEFORE THE ADOPTION OF THE CHARTER, Canadian courts applied the guarantee of equality in the Canadian Bill of Rights
o The SCC was to uphold any distinction in a statute if the statute pursued a “valid federal objective”
o This test brought a high degree of judicial deference to the Court’s review of the choices made by Parliament
(h) Early Application of s.15
o With the adoption of the Charter, the Canadian courts faced a dilemma: they could not properly apply s.15 so deferentially; and they could hardly review every distinction in the statute book.
o Until the Andrews case was decided in 1989, most courts followed the assumed that every legislative distinction was a proper subject for equality review, but they upheld every distinction.
o And so, with the absence of any clear standards for the application of s.15 encouraged lawyers to keep trying to use s.15 whenever a statutory distinction worked to the disadvantage of a client
o In the Andrews case, the SCC started to develop rules to control the floodgates opened by s.15 (due to the endless amount of possibilities associated with what is meant by ‘equality’).
o SCC held that s.15 was a prohibition of “discrimination”, and that discrimination could only be based on a ground that was listed in s.15 or that was analogous to those listed in s.15.
o This ruling had the merit of avoiding any inquiry into the abstract concept of equality.
o In the Law case, the court added a new restriction (which turned out to be short-lived) on s.15, that discrimination involved an impairment of “human dignity”.
o BUT in the Kapp case, the court added another new restriction on s.15, that the impairment of human dignity should no longer be a required element of s.15, but rather, substituted human dignity with discriminatory disadvantage/stereotyping.
o In other words, an equality claimant must establish something in addition to disadvantage based on a listed or analogous ground. That additional element (“discrimination”) is no longer an impairment of human dignity; it is now the perpetuation of disadvantage or stereotyping.
DISCRIMINATION
o It is now clear that s.15 should be read as prohibiting only those violations of equality that amount to “discrimination”
LISTED OR ANALOGOUS GROUNDS
(a) Requirement of a Listed or Analogous Ground
o QUESTION:
o What kinds of legislative distinctions count as discrimination, and are therefore prohibited by s.15?
o Before Andrews, all legislative distinctions were open to review under s.15, therefore causing floodgates to all equality challenges; regardless whether justification was to be found in s.1 or within s.15 itself.
Andrews v Law Society of BC (1989)
o PRINCIPLE: Citizenship is an analogous ground in s.15 AND established s.15 was essentially an anti-discrimination provision with its protections only benefiting “discrete and insular minorities”.
o Issue: A challenge to the statutory requirement of the province of British Columbia that members of the bar had to be citizens of Canada.
o SCC Held: This requirement was contrary s.15, and not saved by s.1. Citizenship qualified as an analogous ground of discrimination.
o After Andrews, it was clear that s.15 was a prohibition of discrimination and that discrimination involved the imposition of a disadvantage (the imposition of a burden or the denial of a benefit) on an individual by reason of the individual’s possession of a characteristic that was either listed in s.15 or was analogous to those listed in s.15.
o In Law, the court reaffirmed the restriction of s.15 to listed and analogous grounds as well as adding that “discrimination involved an impairment of ‘human dignity’” (which was short-lived)
(b) Addition of analogous grounds
o What are “analogous” grounds?
o These are all personal characteristics of individuals that are unchangeable (or immutable – permanent, final, irreversible), or at least unchangeable by the individual except with great difficulty or cost.
o They are not voluntarily chosen by individuals, but are an involuntary inheritance.
o They describe what a person is rather than what a person does.
o Thus, a law that has treated a person unfairly by reason of a condition over which the person has no control warrants a constitutional remedy.
Andrews – “Citizenship” is a personal characteristic that is “typically not within the control of the individual and, in this sense, is immutable”.
Nova Scotia v Walsh (2002) – “Marital status” is an analogous ground.
Egan v Canada (1995) – “Sexual orientation” (gay) is an analogous ground.
Vriend v Albert – Alberta’s HR code violates s.15 by failing to include sexual orientation as a prohibited ground of discrimination.
M v H – Ontario’s family law legislation violated s.15 by excluding same-sex couples from spousal support obligations.
Little Sisters Book – the practices of customs officials in obstruction the importation of gay/lesbian erotica was a breach of s.15.
o So, where there is no distinction based on a listed or analogous ground, there is no remedy under s.15
o When the court imports equality values into other Charter rights, it leaves out the restriction to listed and analogous grounds.
HUMAN DIGNITY
(a) Ambiguity in Andrews
o The simple reading of Andrews is: a breach of s.15 occurred whenever a disadvantage (burden or withheld benefit) was imposed on the basis of a listed or analogous grounds.
o This finding would exhaust the role of s.15, and issues of reasonableness or fairness of the challenged law would be addressed under s.1.
o After Miron and Egan, the SCC was splintered into 3 camps as to the interpretation of s.15, all with the same result
o This fragmentation lasted until 1999 when Law was decided.
(b) Impairment of Human Dignity
o In Law v Canada (1999)the SCC (IACOBUCCI) provided a new interpretation of s.15
(1) s.15 applied only to legislative distinction based on a listed or analogous ground
(2) Discrimination in s.15 involved an element additional to a distinction based on a listed or analogous ground.
(3) That additional element was an impairment of “human dignity”.
(This new interpretation differed from each of the three competing interpretations that had been offered in Miron and Egan)
Law v Canada (1999)
o PRINCIPLE: in addition to a breach of a listed or analogous ground, an impairment of human dignity must be established to satisfy s.15. A law will be discriminatory if it impairs human dignity.
o Facts: Under the federal CPP, survivors’ benefits were payable to the spouses of deceased contributors, unless the spouse was under the age of 35. The claimant was the survivor of a deceased contributor, but, because she was under 35, she was ineligible for a survivor’s benefit.
Argument: the law withheld a benefit from her on the ground of her age, age being a listed ground under s.15. On simply interpretation, this would have been enough to constitute discrimination under s.15, which would have sent the issue on to s.1.
o SCC Held: by adding a new requirement of human dignity to s.15, the court imposed on the claimant the burden of establishing that the age-based distinction was an impairment of her human dignity. She was unable to discharge that burden, and so her equality claim was denied without recourse to s.1.
o Reasoning: Why was the age-based distinction not an impairment of human dignity? In the context of the CPP, the court recognized the reality that young widows would have less difficulty than older persons in finding and maintain employment.
o IACOBUCCI à suggested four “contextual factors” that are helpful to the inquiry:
a. The factors were the existence of “pre-existing disadvantage, stereotyping, prejudice, vulnerability”
b. The factors were the correspondence between the distinction and the claimant’s characteristics/circumstances
c. The factors were the existence of ameliorative purposes or effects on other groups
d. The factors were the nature of the interest affected
o In this case, the second factor was important – the age qualification for CPP survivor benefits corresponded to the actual characteristics and circumstances of youthful surviving spouses.
o HOGG’s critique of Law àThis is unfortunate. The element of human dignity is vague, confusing and burdensome to equality claimants. In the inquiry into human dignity, the court does not need to make a finding of minimum impairment (or least drastic means), which under s.1 calls for an inquiry as to whether there are alternative legislative measures that would accomplish the legislative purpose without impairing the right as much.
àAlso, the fact remains, that a failure to persuade the Court that human dignity is impaired causes the claimant to lose the case. Even in Law itself, in many subsequent cases, the claimant has established a disadvantage based on a listed or analogous ground, bit has lost the case for failure to establish an impairment of human dignity. The law has been upheld WITHOUT the need for the government to establish s.1 justification
o After 1999 every case followed the Law analysis until Kapp [2008], when the SCC retracted the requirement of an impairment of human dignity, and replaced it with what seems to be the very similar requirement of “discrimination”.
(c) The factor of correspondence
o In Law, the SCC suggested 4 “contextual factors” that were to be taken into account to determine whether or not human dignity is impaired by a law that imposes a disadvantage on the basis of a listed or analogous ground.
o The second correspondence factor related in Law and therefore, the claimant, who was denied the spousal benefit on the basis of her age, was unable to establish an impairment of her human dignity and lost the case.
o Another age-based case:
Gosselin v Quebec (2002)
o Facts: A workfare program provided low welfare benefits for persons under 30, unless they attended training programs, in which case standard benefits were payable.
o SCC Held: The claimant was unable to access the training programs, and had been forced to subsist on low benefits, was unable to establish an impairment of her human dignity and lost her case. The age-based requirement corresponded to the increased capability of young persons to benefit from training programs.
o While judicial discussion of human dignity often ranges far and wide, the correspondence factor seems to have become the key to impairment of human dignity.
o It seems to come down to an assessment by the court of the legitimacy of the statutory purpose and the reasonableness of using a listed or analogous ground to accomplish that purpose.
o If this is right, the correspondence factor leaves very little work for s.1 to do
(d) Discrimination without Human Dignity
R v Kapp [2008]
o Principle: impairment of human dignity should no longer be a required element of a s.15 claim.
o Issue: equality challenge to a fishing licence that gave exclusive rights to aboriginal fishers
o SCC Held: the licence was upheld under the affirmative-action clause of s.15(2). An impairment of human dignity should no longer be a required element of a s.15 claim.
o MCLACHLIN and ABELLAà They did not doubt that “human dignity is an essential value underlying the s.15 equality guarantee”, but they acknowledged that “as a legal test” human dignity was “confusing and difficult to apply” and was “an additional burden on equality claimants, rather than the philosophical enhancement it was intended to be”
o Thus, Kapp assumes that there is still an element of s.15 in addition to a disadvantage imposed on listed and analogous ground. That element is no longer called “human dignity” – it has no other than “discrimination” – but it is identified by the same four contextual factors that were formerly used to identify an impairment of human dignity.
o So, the impairment of human dignity should no longer be a required element of s.15, but rather, substituted human dignity with discriminatory disadvantage/stereotyping.
o In other words, an equality claimant must establish something in addition to disadvantage based on a listed or analogous ground. That additional element (“discrimination”) is no longer an impairment of human dignity; it is now the perpetuation of disadvantage or stereotyping.
o HOGG à the definition of discrimination as the perpetuation of disadvantage or stereotyping is almost as vague as human dignity, and it continues to rely on the same contextual factors as were used to identify human dignity. Thus, the restatement does not seem to be successful wither in clarifying the law or in removing an unnecessary burden from equality claimants.
o What the courts seemed to be doing in Kapp is signalling a change of direction in its equality doctrine, but for that new direction to take hold. More guidance is needed from the court.
Ermineskin Indian Band and Nation v Canada [2009]
o Facts: four Indian bands had surrendered their interests in the oil and gas under their reserves to the federal Crown so that the Crown could make arrangements with third parties to exploit the resources. This was done and the Crown received and held the oil and gas royalties on behalf of the bands. The royalties were paid into the consolidates revenue fund, where there were separate accounts for each band, and each account was credited with interest at a floating rate that was calculated via average rate for long-term government bonds over the period for which the interest was paid
o Issue: whether the government was in breach of their fiduciary duty? The band claimed that the return on their money would have been higher if the government had invested the money in a diversified portfolio of investments.
o SCC Held: dismissed this claim on the basis that the government was precluded by statute from external investment of the bands’ money. The Indian Act required Indian money to be paid into the consolidated revenue fund, and other statutory provisions prohibited external investment of money held in the consolidated revenue fund.
o ROTHSTEIN à confirmed Kapp and said that is was not enough for an equality claimant to show a disadvantage that the challenged law was “discriminatory”, which involved establishing that the law “perpetuates prejudice or stereotyping”.
o ROTHSTEIN made NO reference to the four contextual factors from Law. But held that the Indian Act requirement to keep the bands’ funds in the consolidated revenue fund, as opposed to investing them, involved less control over the funds by the Crown, greater liquidity for the bands, and no risk of loss to the bands. These features of the statutory regime “do not draw a distinction that perpetuates disadvantage through prejudice or stereotyping”. This defeated the bands’ equality claim without the need to go through a s.1 analysis.
DISADVANTAGE
(a) Selection of comparator group
o In order to establish discrimination under s.15, an individual must show that he or she has suffered a disadvantage by reason of his or her possession of one of the characteristics named in s.15, or by an analogous characteristic
o The presence of disadvantage or unequal treatment requires a comparison between the legal position of the claimant and that of other people to whom the claimant may legitimately invite comparison.
1. Whether the group to which the claimant compares herself is the appropriate comparator group? And
2. Whether the distinction that the law draws between the claimant and the comparator group is disadvantageous to the claimant?
o Andrews – the plaintiff’s non-Canadian citizenship denied him access to the legal profession, while permitting access to others whose qualifications to practice law were no different from his, except for their possession of Canadian citizenship.
Hodge v Canada (2004)
o PRINCIPLE: the correct comparator group must be selected in order to prove discrimination.
o Facts: the claimant applied for survivor’s benefit under the CPP. The benefit was payable to a person who was the “spouse” of a CPP contributor at the time of the contributor’s death. “Spouse” included common law partners. The claimant had been the common law wife of a deceased CPP contributor, but she had left him shortly before his death. She was denied the benefit because she was no longer his spouse at the time of his death.
o Argument: she argued that the law discriminated on the ground of marital status, which is an analogous ground under s.15.
o SCC Held: she had selected the wrong comparator group. The correct comparator was not married spouses living apart at the time of the contributor’s death (as she argued), but former spouses. All former spouses, whether the prior marriage was legal or common law, were treated equally. The claimant had therefore suffered no disadvantage on account of her marital status.
Auton v BC (2004)
o PRINCIPLE: the correct comparator group must be selected in order to prove discrimination.
o Facts: a claim of discrimination was made by autistic children and their parents, who complained that the province did not fund a specific therapy for the treatment of autism.
o SCC Held: the error in the lower courts was in the selection of the comparator group. It was wrong to compare the autism claimants with the recipients of fully funded therapies, because this ignored the fact that the autism therapy had only recently become recognized as medically necessary. Funding of new therapies “may be legitimately denied or delayed because of uncertainty about a program. Because the claimants adduced no evidence that the province was funding “other comparable, novel therapies”, they could not show disadvantage or unequal treatment.
o In contrast, see Nova Scotia v Martin - Nova Scotia’s statutory worker’s compensation scheme violated s.15 for providing short term benefits for work-related ‘chronic pain’. Court acknowledged that chronic pain was unlike other work-related injuries, and held that comparator group is the group of workers subject to the Act who do not have chronic pain and are eligible for comparison for their employment-related injuries. This comparator group definition established that there was an unequal treatment claim of personal characteristic of physical disability.
(b) Requirement of Disadvantage
o Once the appropriate comparator group has been selected, it is necessary to compare the treatment provided by the law to the claimant with the treatment provided to the comparator group.
o Only if the law treats the claimant less favourably is the claim of disadvantage or unequal treatment made out.
Thibaudeau v Canada [1995]
o Facts: divorced woman who had custody of the children and who received child-support payments.
o Issue: She objected to a provision of the Income Tax Act that required her to pay income tax on the support payments she received from her ex. She argued that the tax provision discriminated against separated custodial parents, because in the intact family the income tax on the money spent on child support would be paid by the spouse who earned the income.
o SCC Held: rejected her argument because the inclusion requirement on the recipient spouse was matched by a deduction for the payor spouse. Since the payor spouse was usually in a higher tax bracket than the recipient spouse, the tax saved by the deduction would normally exceed the tax incurred by the inclusion.
o Thus, the claimant was unable to establish that she had suffered a disadvantage by reason of her marital status. The Income Tax Act did not discriminate against them, and there was no breach of s.15.
Eaton v Brant County Board of Education (1997)
PRINCIPLE: s.15 will not amount to a disadvantage if the effect is in the best interest of the child.
Facts: a tribunal determined that a 12 year old with cerebral palsy, who had for three years been educated in a regular classroom, should be placed in a special classroom.
Parent’s argument: the statutory power to place pupils in a separate classroom without parental consent was a violation of equality rights.
SCC Held: there was no breach of s.15. The tribunal’s finding showed that the segregated setting was in the best interests of the child. The equality right was that of the child, not her parents. The placement of the child could not be characterized as the imposition of a disadvantage of the child.
(c) Objective and Subjective Disadvantage
o How does one measure disadvantage?
Egan v Canada [1995]
o Issue: same-sex couple challenged the spouse’s allowance that was payable under the federal Old Age Security Act to the “spouse” of a pensioner. The term spouse included persons in common-law relationships, but only if they were “of the opposite sex”
o SCC Held: denied the claim to spousal status. The court applied a subjective standard: the claimants were disadvantaged because, according to their subjective calculus of costs and benefits, the disadvantage of not being officially recognized as spouses outweighed the advantage of higher single-status social assistance.
o Subjective standard = from the point of view of the individual who makes the claim of discrimination
o Objective standard = from the point of view determined by the court
o This subjective standard seems to have been the premise of the finding of disadvantage in:
McKinney v University of Guelph [1990]
o SCC Held: the mandatory retirement age 65 constituted discrimination on the basis of age, and was upheld. Held that the majority retirement was justified under s.1.
o Taking an objective standpoint, the court assumed that without discussion that mandatory retirement was a disadvantage to employees aged 65....this is probably wrong!
o From their own subjective standpoint, the claimant professors were disadvantaged
o NOTE:
è But Charter decisions do NOT affect only the parties who believe that they are disadvantaged
o Therefore, the court in McKinney held that the majority retirement was justified under s.1. Mandatory retirement offered significant benefits to individual university professors, as well as to the universities as centres of teaching and research.
o In the end, the court’s objective calculus of costs and benefits, rather than subjective calculus of the claimants, is the one that prevailed.
o The objective approach to disadvantage was also applied in R v Swain [1991]
o The fluctuations between objective/subjective in the SCC’s inquiries into disadvantage may have been resolved in: Law – whether an impairment of human dignity was to be assessed from a subjective or an objective perspective? The court answered that BOTH PERSPECTIVES MUST BE EMPLOYED!
(d) Human Dignity and Disadvantage
Canadian Foundation for Children, Youth and the Law v Canada (2004) – SCC decided that the Criminal Code provision that permitted the reasonable use of corrective force against children by parents and teaches was on the whole beneficial to children.
o When Kapp removed human dignity from s.15 analysis, it replaced the concept with “discrimination”, a similarly indeterminate judicially-created element to be established by the equality claimant.
o The Kapp requirement has the same tendency to absorb the requirement of disadvantage
Ermineskin Indian Band and Nation v Canada [2009] – the SCC dismissed an equality challenge by Indian bands to the investment provisions of the Indian Act, which precluded the external investment of band moneys held by the Crown.
(e) Group disadvantage
o In Andrews, the SCC struck down a British Columbia law that excluded non-citizens from admission to the bar. Disadvantaged or powerlessness was characteristic of the groups protected by s.15.
R v Turpin (1989)
o Issue: a s.15 challenge was mounted to a provision of the Criminal Code that stipulated that murder was to be tried by a judge and jury, and that gave no right to elect a trial by judge alone. Alberta gave an accused the right to elect a trial by judge alone. The three accused were charged with murder in Ontario and wished to be tried by judge alone and argued that the failure of the Criminal Code to accord that right to an accused in Ontario was discriminatory, because the right was available to an accused person in Alberta.
o SCC Held: s.15 argument was rejected on the basis that the three accused were not members of a disadvantaged group. Since the claim was outside the purpose of s.15, it was also outside the scope of s.15, and the claim accordingly was rejected.
o WILSON à “it is not sufficient for the equality claimant to show that he or she was disadvantaged by the impugned law. That, obviously, was necessary, but was not sufficient. The claimant had to go further to show that the distinction employed by the statute was one that defined a group that was disadvantaged in other respects”
o JOHEN HART ELY àwhen judges strike down a discriminatory law, what they are really doing is removing impediments to access to the democratic political process. This view of equality cats the judges “in the role of servants of democracy even as they strike down the actions of supposedly democratic governments”
o The view of equality review as a correction of political powerlessness undoubtedly contains a valuable insight as to why discrimination by legislative bodies may properly be corrected by courts. But it is doubtful whether it is appropriate to regards the political powerlessness of a group as an essential ingredient of discrimination under s.15.
o Assuming that general disadvantage could be identified with particular groups, the awkward question arises as to how to deal with an individual who has been discriminated against on a named or analogous ground, although the individual belongs to a group that is in other respects not subject to disadvantage?
o The implication in Turpin is that an individual member of the advantaged part of a named or analogous group would NOT invoke s.15, even if unjust treatment was established.
o Whatever the justification for such a stern doctrine, it is hard to square with the unqualified language of s.15 and it has been rejected by the SCC...
R v Hess (1990) – the provision did NOT offend s.15 because the definition of intercourse used the concept of penetration, which could as a matter of biological fact be committed only by a man, therefore it was not discriminatory to apply the offence only to men. Therefore, although finding no discrimination, the general disadvantage argument from Turpin was not repeated because the arguments take the language further than is justified. Clearly assuming that discrimination against men was contrary to s.15.
History:
o Miron [1995] – membership in a disadvantaged group was not a prerequisite, but merely an “indicator” of an analogous group
o Egan [1985] – “while historical disadvantage or a group’s position as a discrete and insular minority may serve as indicators of an analogous ground, they are not prerequisites for finding an analogous ground”
o Law [1999]– group disadvantage is a “contextual factor” to determine whether there has been an impairment of the claimant’s human dignity. The “important purpose of s.15(1) in protecting individuals or groups who are vulnerable, disadvantaged, or members of ‘discrete and insular minorities’ should always be a central consideration
o Kapp [2008]– replaced human dignity with “discriminatory” showing that the claimant is a member of a generally disadvantaged group will assist in persuading the court that the legal distinction is discriminatory.
DIRECT AND INDIRECT DISCRIMINATION
(a) Substantive Equality
o A law may be discriminatory on its face (DIRECT discrimination), in its effect (INDIRECT discrimination), and in its application (INDIRECT discrimination).
o Substantive Equality = used to indicate a theory of equality that covers INDIRECT as well as DIRECT discrimination.
o Since Andrews, the SCC made it clear that s.15 required substantive equality, rather than formal equality.
o Therefore, Substantive equality has remained a central assumption of interpretation of s.15.
o s.15 therefore applies to all three kinds of laws:
(1) the law that is discriminatory on its face;
(2) the law that is discriminatory in its effect; and
(3) the law that is discriminatory in its application
(b) Unintended Discrimination
o INDIRECT discrimination may be unintended. However, because intention is not an ingredient of discrimination under s.15, it is not necessary to make any judgement about whether a case of indirect discrimination is intended or not
o Even DIRECT discrimination may be unintended.
o In Andrews, because the EFFECT of the law was to disadvantage a person on the basis of citizenship, there was a breach of s.15. The benign PURPOSE of the law was irrelevant under s.15
o The SCC held – it is not necessary to show that PURPOSE of a challenged law is to impose a disadvantage on a person by reason of a listed or analogous characteristic. It is enough to show that the challenged law has this EFFECT. It was, however, relevant to s.1.
o Applied to s.15, this doctrine leads to the conclusion that either discriminatory PURPOSE or a discriminatory EFFECT will constitute a breach of s.15.
o The PURPOSE of the law will always be relevant to justification under s.1 because a law limiting a Charter right cannot be justified under s.1 unless it serves an important PURPOSE that is compatible with the values of a free and democratic society
(c) Reasonable accommodation
o A form of accommodation that is required under s.15:
Eaton – The school board’s duty of reasonable accommodation was to be driven by the best interests of the child, not the wishes of the parents. This fulfilled the school board’s duty of accommodation, and there was no breach of s.15.
JUSTIFICATION UNDER S.1
o Since Law imported human dignity into s.15, there has been only one case in which s.1 has saved a law found to be in breach of s.15:
Newfoundland v N.A.P.E. (2004) – it was a breach of human dignity to maintain in force wages that did not do justice to the female workers’ contribution. Therefore, there was a breach of s.15. However, the court accepted that the province had experienced financial issues and so the law which postponed the increase in wages of female hospital workers in order to achieve pay equity with men was upheld under s.1.
o When the court uses the “correspondence” factor to decide the issue of human dignity, it considers whether the PURPOSE of the law is legitimate and the use of a listed or analogous ground to accomplish the PURPOSE is reasonable. This is really only a lose form into justification under s.1.
o It is not surprising that s.1 has become less important in equality cases since human dignity element was introduced in 1999. The court’s retraction of human dignity in Kapp is unlikely to restore s.1 to its intended justificatory role because its substituted concept of “discrimination” appears to be very similar to human dignity.
AFFIRMATIVE ACTION
o The SCC has consistently interpreted s.15(1) as implementing a substantive rather than a formal definition of equality.
o Under a substantive definition of equality, different treatment in the service of equity for disadvantaged groups is an EXPRESSION OF EQUALITY, not an exception to it.
o In Kapp, the SCC rejected that s.15(2) was an exception to s.15(1)
“the focus of s.15(1) = was on PREVENTING governments from discriminating”
“the focus of s.15(2) = was on ENABLING governments to pro-actively combat discrimination”
o But, held that s.15(2) was not merely an interpretation of s.15(1), since s.15(2) had an “independent role” to play
DISCRIMINATION PERMITTED BY CONSTITUTION
(a) Age in ss. 23, 29, 99
o If the Constitution permits discrimination, the provisions would therefore be contrary to s.15, and invalid (unless saved by human dignity, or s.1)
o There are provisions sheltered from Charter attack
(b) Race in s.91(24)
o There are provisions sheltered from Charter attack. This issue arose under the equality clause of the Canadian Bill of Rights:
R v Drybones (1969) – SCC held that the use of the racial classification “Indian” as an ingredient of an offence was contrary to the equality clause of the Canadian Bill of Rights.
o Did Drybones mean that the entire Indian Act was inoperative, and that s.91(24) could no longer be used by the federal Parliament?
o Laws enacted under s.91(24) are NOT vulnerable to challenge under s.15.
o However:
Ermineskin Indian Band and Nation v Canada [2009] - this was a challenge to the Indian Act restrictions on the investment of Indian band moneys, the special constitutional status of Indian was NOT considered. The court assumed that a s.15 challenge was available IF the Indian Act imposed a disadvantage on Indians
(c) Religion in s.93
Ontario Separate School Funding case (1987)
o Issue: Ontario statute extended full public funding to Roman Catholic separate schools was attacked on the ground that it was a violation of s.15 to confer a benefit on Roman Catholic separate school supported, a class defined by their religion. Religious schools other than Roman Catholic received no funding.
o SCC Held: upheld the statute on the basis that it was permitted by the Constitution.
o ESTEY à “The Charter cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution”.
Adler v Ontario (1996) – special constitutional status of the Roman Catholic schools.
o IACOBUCCI à “the claimants could not invoke a comparison with the fully-funded PUBLIC system, because s.93 constituted a ‘comprehensive code’, and the public schools as well as the Roman Catholic separate schools were ‘part and parcel’ of that code”
o Therefore, the Charter, although adopted later in time, is NOT to be read as impliedly repealing or amending those provisions of the earlier instrument that are inconsistent with the unqualified language of s.15 (or other guarantee).
o Rather, s.15 is to be read as qualified by the language of the earlier instrument.
(d) Province of residence in ss.91,92
o Differences between provincial laws cannot amount to discrimination under s.15, because that would require a uniformity of provincial laws which would be inconsistent with the distribution of legislative powers in ss.91 and 92.
o Therefore, the federal system operates as a general qualification of s.15’s guarantee of equality.
(e) Citizenship in s.6
o The Charter contains some implicit qualifications of s.15’s guarantee of equality
o Because s.6(1)’s guarantee of the right to remain the Canada applies only to a “citizen”, it has been held that the Immigration Act may validly provide for the deportation of non-citizens who have committed criminal offenses, or certified as a threat to national security.
o Normally, the imposition on non-citizens would be a breach of s.15.
(f) Language in ss.16-23
o This is another qualification of s.15
o It is equality of the French and English languages
o But by implication, they accord a “special status”: to French and English “in comparison to all other linguistic groups in Canada.
RACE
o Race is a ground of discrimination expressly prohibited by s.15
o A racial distinction in a statue would be upheld if the statute established an ‘affirmative action’ programme within the terms of s.15(2), and might be upheld under s.1 if the statute fell outside the strict terms of s.15(2), but pursued a benign (kind) PURPOSE of an affirmative action kind.
o Otherwise it is difficult to imagine a situation in which a racial distinction could be possibly upheld.
o REMEMBER:
è s.15 only has a limited role to play with respect to aboriginal peoples, since s.35 “special status” applies for them, which is recognized by s.25 of Charter.
è In addition, the federal Parliament, under s.91(24) gives effect to aboriginal or treaty rights, are NOT affected by s.15 of Charter.
RELIGION
o Religion is a ground of discrimination expressly prohibited by s.15.
o To the extent that a denominational school system is protected, or even contemplated, by s.93, NO s.15 challenge is open
Alta v Hutterian Brethren of Wilson Colony [2009]
o Issue: the Christian denomination, objected on religious grounds to the province’s law requiring that a driver’s licence display a photo of the licence holder. This offended their belief that having their picture taken was prohibited by the Bible.
o SCC Held: accepted that the requirement was a limit on their freedom of religion, but, upheld the law under s.1. the court rejected s.15 argument, holding that a universal requirement of photo licences did NOT create a distinction based on religion
SEX
(a) Direct discrimination
o Sex is a ground of discrimination expressly prohibited by s.15
Weatherall v Canada (1993)
o Argument: it was discriminatory because female prisoners were searched and observed only by guards of the same sex.
o SCC Held: even if there was a breach of s.15, it was saved by s.1. The “humanizing effect” of having women in male prisons and the enhancement of “employment equity” constituted sufficient justification for the practices.
Benner v Canada (1997)
o Issue: different standard of admittance to Canada depending on Canadian parent’s sex.
o SCC Held: this was discrimination by sex, which was a breach of s.15. The breach could not be justified under s.1, because there was no rational basis to suppose that the children of Canadian mothers required a more rigorous screening process than children of Canadian fathers.
Trociuk v BC (2003)
o Facts: a father challenged the provincial law that permitted a mother to leave the father’s name off the birth certificate and to alone choose the surname of the child.
o SCC Held: the law distinguished on the basis of sex, since fathers were disadvantaged in comparison with mothers under the Act. The exclusion of fathers from the registration and naming process impaired their human dignity. Therefore, the law infringed s.15 (not justified under s.1), and was invalid.
Newfoundland v N.A.P.E [2004]
o Facts: Newfoundland enacted a Public Sector Restrain Act which delayed for 3 years the introduction of pay equity for female workers in the hospital sector. The Act modified a pay to the pay of hospital workers in female-dominated jobs which would bring their pay up to that comparable male workers.
o Issue: the Act made no provision for retroactive pay for the period of dely.
o SCC Held: the Act was a breach of s.15. By postponing the implementation of that right, the Act singled out a group of women who were being paid less than men who performed work or equal value, and perpetuated their disadvantage.
o This was therefore a discrimination on the ground of sex.
o HOWEVER, the Act was saved by s.1 because the Act was a response to a “financial crisis” in the province that provided justification for the limit on the claimants’ Charter rights.
(b) Systemic Discrimination
o To the extent that discrimination against women takes place in the private sphere from which the Charter is excluded, any remedy would have to lie under the Human Rights Code.
o Symes v Canada [1993] – SCC Held acknowledged that women disproportionately bore the social costs of child care, but held that the taxpayer (self-employed female lawyer with 2 kids) had not established that women disproportionately bore financial costs of child care. Since the deduction would be available with respect only to the financial costs of child care, it could benefit men as much as women, and its restriction did NOT amount to discrimination on the basis of sex.
SECTION 28
o This falls short of equal treatment of “male and female persons”
o All that s.28 seems to require is that the other provisions of the Charter be implemented without discrimination between the sexes.
AGE
o Age is a ground of discrimination expressly prohibited by s.15.
Law v Canada – Although the law imposed a distinction on the listed ground of age, it was not discriminatory because it did not impair human dignity since widows under the age of 35 were more capable than older persons of maintaining and finding employment. The exclusion of persons under 35 did not imply that they were less capable or less worthy, but designed to apply limited resources.
Gosselin v Quebec (2002) – the law imposed a distinction of age, but it was not discriminatory because it did not impair human dignity. On the contrary, it assumed that young people were more able than older people “to benefit from training and education, more able to get and retain a job ...”.
Canadian Foundation for Children ... – The law drew a distinction based on age, since the same force would amount to assault if exercised on an adult. SCC Held that the decriminalization of corrective force against children was not based on a devaluation of children, but was based on the view that the criminal law should not intrude into normal school and family discipline.
o MCLACHLIN à s. 43 defence (Criminal Code) “is firmly grounded in the actual needs and circumstances of children, and therefore does not impair their dignity.
McKinney – mandatory retirement at a university was discrimination based on age within s.15, but upheld under s.1.
Tetreault-Gadoury v Canada (1991)
o Issue: whether a provision of the Unemployment Insurance Act, which denied benefits to persons over 65, was in breach of s.15
o SCC Held: the provision violated s.15. However, the court departed from McKinney to hold that the age-65 bar could NOT be justified under s.1.
o The court distinguished McKinney on grounds such as the limited resources of a university.
o Here, the rejection of s.1 justification suggests that age distinctions are vulnerable to Charter attack, and even that mandatory retirement in workplaces other than universities and hospitals may be justified under s.1.
o The court distinguished McKinney on 3 grounds (which are only applicable to public and private university working places)
a. That a university was “a closed system with limited resources”
b. That “faculty renewal” was “crucial to extending the frontiers of knowledge”
c. That “academic freedom” required a minimum of performance review up to retirement age
MENTAL OR PHYSICAL DISABILITY
o Mental or physical disability is a ground of discrimination that is expressly prohibited by s.15
o Some restrictions are proper.
i.e. a blind person is properly disqualified from holing a driver’s licence and a mentally incompetent person is properly disqualified from making a will.
o Thus, the rules that discrimination may be unintended, may be indirect, and may require reasonable accommodation, are of special importance for this ground of discrimination
o Wynberg v Ontario [2006]- A disabled child was rejected by the courts because the therapy was provided to pre-school children would NOT be the appropriate accommodation for school children, since it was so time-consuming and intensive that it could not be fitted into a full-time school program without abandoning most of the other instruction.
Granovsky v Canada (2000)
o Facts: federal legislation establishing the CPP required the person claiming the disability pension to establish not only that he suffered from permanent disability but also that he had contributed to the Plan in five of the previous ten years. Mr G was unable to satisfy the contribution requirement because of his disability and he fell outside of the exception in such circumstance of disability because the Plan only covered “permanent” disability while his was temporary.
o SCC Held: this was NOT a breach of s.15. By giving preference to the claims of those who had been permanently disabled during the qualifying period, Parliament was recognizing a greater need and not impairing the human dignity of those who had been temporarily disabled.
o The pattern of deference (where the court defers to a legislated effort to accommodate persons with disabilities) was broken in:
Nova Scotia v Martin (2003)
o Issue: the worker’s compensation scheme provided only for a four-week program of rehabilitation for a worker who was still suffering from chronic pain after the apparent healing of a work-related injury; after taking the program, the worker was supposed to return to work.
o SCC Held: this program was not appropriate as a general answer to chronic pain, which often persisted beyond the four-week period. The distinction also impaired the human dignity of chronic pain sufferers, and therefore counted as discrimination that was prohibited by s.15. It could not be justified under s.1.
o An earlier case where the SCC granted a s.15 remedy for discrimination on the ground of disability is:
Eldridge v BC (1997)
o Issue: the BC health services plan had not accommodated the special needs of deaf people seeking medical services. Deaf persons were not provided with publicly funded sign-language services at a hospital
o SCC Held: the failure was a breach of s.15. Because communication was a crucial part of the provision of most medical services, it was a denial of equal benefit to deaf people not to provide the assistance that would enable effective communication to occur between a deaf patient and a hospital or doctor.
Rodriguez (assisted suicide) – the prohibition was justified under s.1.
CITIZENSHIP
o Citizenship is NOT a ground of discrimination that is expressly mentioned in s.15
o BUT it is analogous to those expressly mentioned (see Andrews and see Lavoie)
MARITAL STATUS
o Marital status is NOT a ground of discrimination hat is expressly mentioned is s.15
o BUT in:
Miron v Trudel (1995)
o Facts: Ontario’s Insurance Act limited accident benefits to the legally-married spouses of an insured, which had the effect of excluding common-law spouses.
o SCC Held: this was discrimination based on marital status.
o NOTE:
o This case is pre-Law (1999), and the human dignity requirement was not necessary.
o After Miron, the SCC added its new requirement of “human dignity” to s.15
o Did that additional barrier to s.15 protect some elements of marriage??? YES!!!
Nova Scotia v Walsh (2002)
o Issue: the provinces matrimonial law imposed a regime of shared property on married spouses, which came into effect on the breakdown of the marriage. However, the law was restricted to legally-married spouses.
o SCC Held: marital status is an analogous ground under s.15 (Miron v Trundel), but the exclusion of unmarried cohabitants did NOT impair human dignity. The matrimonial property law was upheld.
o BASTARCHE à denied that the law treated unmarried cohabitants as less deserving of respect than married spouses.
o Reasoning: The law was premised on the assumption that only those persons who had made the choice to get married had committed themselves to a relationship of such permanence that it would justify imposing on them the obligations to contribute to and share in each other’s assts.
o My critique: this assumes that people are getting married in order to have a 50-50 split. Also, in each case a contract (pre-nup) could be signed.
SEXUAL ORIENTATION
o Sexual orientation is NOT listen in s.15
o BUT has been held to be a ground of discrimination that is analogous to those listen in s.15.
M v H (1999) – the exclusion of persons in same-sex relationships from the spousal support obligations in Ontario’s family law legislation was unconstitutional. The definition of spouse that had this effect discriminated on the ground of sexual orientation, which was an analogous ground under s.15, and it also impaired human dignity by implying that persons in same-sex relationships were less worthy of protection than persons in opposite-sex relationships.
o The traditional definition of marriage led to challenges by same-sex couples who wished to get married.
o The Government changed its policy and decided not to introduce legislation defining marriage as “the lawful union between TWO PERSONS to the exclusions of all others”
Same-Sex Marriage Reference [2004]
o SCC Held: Parliament’s power over “marriage” in s.91(26) of Constitution extended to the legalization of same-sex marriage.
PLACE OF RESIDENCE
o Place of residence is NOT an analogous ground.
i.e. It cannot be a breach of s.15 that the minimum wage is higher in Manitoba then it is in PEI, or that nurses have the right to strike in Ontario but not in Alberta. These differences flow from the fact that labour law is a matter coming within property and civil rights in the province.
R v Turpin – trial by judge alone.
Corbiere v Canada (1999) – “Aboriginality-residence” as a requirement to vote was an analogous grounds, and that the voting requirement was a breach of s.15.
R v S.(S) (1990)
o Issue: whether Parliament could make distinctions between different provinces without offending the equality guarantee. The AG of each province was to establish a programme to divert young offenders away from the courts.
o This allowed different programs to be implemented or not at all. A young offender in Ontario, where there was no program, argued that this failure was a violation of his equality right under s.15.
o SCC Held: no breach of s.15.
o s.15(2) – affirmative action – R v Kapp (2008)
o The government's objectives correlated to the actual economic and social disadvantage suffered by members of the three aboriginal bands. As such, the program was protected by s. 15(2) and did not violate the equality guarantee in s. 15 of the Charter.
OCCUPATION
o Occupation is NOT an analogous ground.
Dunmore v Ontario [2001]
o SCC Held: reversed itself on the freedom of association argument, and held that the exclusion of agricultural workers from Ontario’s Labour Relations Act was a breach of s.2(d) (and could not be saved under s.1)
Health Service Bargaining Case [2007]
o Facts: BC enacted an Act that purported to override some rights possessed by the province’s unionized health care workers under their collective agreements.The Act laid down new rules...which were designed to gave the hospitals and other health sector employers more freedom in managing their workforce so as to deliver services more efficiently and rein in the costs of publicity funded health care.
o Issue: whether the unions can attack the Act as a breach of freedom of association in s.2(d) Charter?
o SCC Held: did not import an equality value into s.2(d) (as it did in Dunmore ). The court held for the first time, that s.2(d) directly protected the union right of collective bargaining.
o The court said that the adverse affects on the Act on health care workers “relate essentially to the type of work they do, and not to the persons they are”.There was no “differential treatment based on personal characteristics”
o Once again, occupational status was REJECTED as an analogous ground
Remedies s.24(1), s.52(1)
SUPREMACY CLAUSE
(a) Section 52(1)
(b) Section 24(1) compared
s.24(1)
s.52(1)
applicable only to breaches of the Charter.
applicable to the entire Constitution, including the Charter.
Available only to a person whose rights have been infringed.
Available in some circumstances to persons whose rights have not been infringed.
May be applied only by a “court of competent jurisdiction”.
May be applied by any court of tribunal with power to decide questions of law.
Authorizes the award of a wide range of remedies.
Appears to authorize only a holding of invalidity, leaving it to the general law to authorize the particular remedy.
Confers a discretion on the court as to whether any remedy should be awarded.
Appears to confer no discretion on the court, requiring the court to make a holding of invalidity if it concludes that a law or act is inconsistent with the Constitution.
(c) Nullification
o Nullification: striking down (declaring invalid) the statute that is inconsistent with the Constitution.
(d) Temporary validity
o Temporary i nvalidity: striking down the statute that is inconsistent with the Constitution, but temporarily suspending the coming into force of the declaration of invalidity.
Re Manitoba Language Rights (1985) – SCC assumed the power to hold that unconstitutional laws were to be given “temporary force and effect” to allow the Legislature time to enact the required corrective legislation. The court invoked the “rule of law” to keep the unconstitutional laws temporarily in force in order to avoid a vacuum of law in the province.
Schachter v Canada (1992) – a provision of the federal Unemployment Act offended the guarantee of equality in s.15, because the provision allowed more generous child care benefits to adoptive parents than to natural parents.
o LAMER à“The logical remedy is to strike down but suspend the declaration of invalidity to allow the government to determine whether to cancel or extend the benefits”.
o “Where severance or reading remedies were not available, then the court could provide for a temporary suspension of the declaration of invalidity in certain cases which the immediate striking down of the legislation
(1) would pose a danger to the public (as in Swain),
(2) would threaten the rule of law (as in Manitoba Language), or
(3) would result in the deprivation of benefits from deserving persons (as in Schachter)”
o Although in subsequent cases, the guidelines have largely been ignored because a new rationale
o All the pose Schachter cases fail to offer an alternative rationale for postponing the declaration of invalidity.
o The exception was Corbiere, where the concurrent opinion articulated the dialogue rationale for the postponement of the declaration. Where the opinion of L’HEUREUX-DUBE said that the principle of democracy should guide the exercise of the Court’s remedial discretion, and that principle “encourages remedies that allow the democratic process of consultation and dialogue to occur”
(e) Severance
o Severance: holding that only part of the statute is inconsistent with the Constitution, striking down only that part and severing it from the valid remainder.
o Severance occurs in most Charter cases because it is unusual for a Charter breach to taint a statute in its entirety.
o Severance is a doctrine of judicial restraint, because its effect is to minimize the impact of a successful Charter attack on a law: the court’s intrusion into the legislative process goes no further than is necessary to vindicate the Charter right.
Tetreault-Gadoury – SCC held it was a breach of s.15 to restrict unemployment insurance benefits to persons under the age of 65. If the age-65 bar were excised from the Act, the normal rules of entitlement would operate without any limitation as to age. The court severed the age-65 bar from the Act.
(f) Reading in
o Reading in: adding words to a statute that is inconsistent with the Constitution so as to make the statute consistent with the Constitution and valid.
o “Reading in” is a serious intrusion by the courts on the functions of the legislative branch, but the alternative of striking down the unconstitutional legislative scheme is also very intrusive.
Miron v Trudel (1995)
o Facts: Ontario’s Insurance Act, which stipulated the terms of the compulsory automobile insurance policies in the province, contained an unconstitutional provision for an accident benefit that was payable to the “spouse” of an insured person. “Spouse” was restricted to legally married.
o Held: the exclusion of common-law spouses was discrimination on the basis of marital status, which was a denial of s.15.
o Remedy: “read in” the definition of spouse new language that would include the unconstitutionally-excluded class of common-law.
Vriend v Albert (1998) – the omission of sexual orientation from the Act was a denial of the plaintiff’s equality right under s.15. The remedy was to “read into” the statutory list of grounds of prohibited discrimination the words “sexual orientation”.
o The addition of the language to the Act would be consistent with the objective of the Act, could be accomplished with precision, would not greatly add to the cost of administering the Act, and would be a less intrusive remedy than striking down the entire Act.
Issues with “reading in”:
Schachter v Canada (1992)
o Facts/Held: the Act treated adoptive parents more generously than natural parents, which was held to be a denial of equal benefit of the law in violation of s.15.
o Issue: What was the remedy? There was no severable provision excluding natural parents from the child care benefits.
o Possible “reading in” remedy: the defect could be cured by “reading in” the class of natural parents to the statutory provision benefiting adoptive parents.
o “Reading in” rejected: The objective of the Act in making special provision for adoptive parents was not clear, and therefore it could not be assumed that the addition of natural parents to the provision would be consistent with the legislative objective. Furthermore, the reading in or natural parents (who are of course more numerous than adoptive parents) would cause a major increase in the scope and cost of the child care benefits.
o Appropriate remedy held: a declaration of invalidity suspended for a sufficient time to enable Parliament to amend the Act into conformity with the Constitution.
(g) Reading Down
o Reading down: interpreting a statute that could be interpreted as inconsistent with the Constitution so that it is consistent with the Constitution.
o Reading down is the appropriate remedy when a statute will bear two interpretations, one of which would offend the Charter and the other of which would not. In that case, a court will hold the latter interpretation, which is normally the narrower one (hence reading down).
Reading down = extends scope of the statute through interpretation.
Reading in = involves the insertion into a status of words that Parliament never enacted.
(h) Constitutional Exemption
o Constitutional exemption: creating an exemption from a statute that is partly inconsistent with the Constitution so as to exclude from the statute the application that would be inconsistent with the Constitution.
(i) Reconstruction
o There is a point at which a court will recognize that an unconstitutional statute cannot be salvaged except by changes that are too profound, too policy-laden and too controversial to be carried out by a court.
o Singh – There were occasions when “crude surgery” could be performed by the court, “but not plastic or re-constructive surgery”.
Rocket v ... Dental Surgeons (1990) – the prohibition on advertising was a breach of freedom of expression and not saved by s.1.
o MCLACHLIN à it was “for the legislators” to determine what kinds of advertising should be prohibited.
o In Schachter as per LAMER à suggested a dictum that serves as a reminder of the caution that should be exercised by non-elected courts in fashioning new laws which must always the that of the elected legislative bodies
o The general rule prohibiting a court form reconstructing an unconstitutional statute is illustrated in:
Hunter v Southam [1984]
Singh v Minister of Employment and Immigration [1985]
o Disagreement within the SCC about salvage by reconstruction surfaced again in:
o Montreal v 2952-1366 Quebec [2005]
o There is one exception to the general rule that the court will not redraft a law in order to bring the law compliance with the Charter. This is the rare case where the offending law is a rule of the common law:
o In R v Swain [1991] the court held that the rule would be saved by s.1 and that is was not necessary to strike down the existing law. Because the existing law was a rule of the judge-made common law, not statute, the Court had the power to replace the existing rule with a new rule that complied with the Charter. The Court therefore simply declared that a NEW RULE, fashioned by it to comply with the Charter, was now the law.
REMEDY CLAUSE
(a) Section 24(1)
(b) Applicable to Charter Only
o The inclusion of a pre-existing right or freedom in the Charter has the effect of significantly strengthening the right: it becomes part of “the supreme law of Canada” to which inconsistent laws must yield (s.52(1)), it becomes entrenched (s.52(2)), and it becomes enforceable under s.24
(c) Non-exclusive Remedy
o Where s.52(1) is authorized to hold that a law abridges a Charter right as invalid, there is no need to apply s.24(1)
o S.24(1) is needed only where a remedy provided by the general law is not available for some reason, or will not provide satisfactory redress.
o In principle, there is no reason why both remedies should NOT be available in the same proceeding in the rare case where both remedies are needed to provide full relieve to the claimant
o R v Demers [2004] – where the court suspended the declaration of invalidity for one year to permit Parliament to enact a new law. That was a remedy under s.53(1). But the court also added a second remedy under s.24(1) where the court that, in the event of Parliament not acting within a year ...
(d) Standing
o Standing to apply for a remedy under s.24(1) is granted to “anyone” whose Charter rights “have been infringed or denied”.
i.e. an accused could not complain about an unreasonable search of his girlfriend’s apartment, even though the search yielded evidence (a cache of drugs) that was relied upon by the Crown as part of its case against the accused. Only the tenant of the apartment could pursue a remedy under s.24.
o A corporation CANNOT obtain a remedy under s.24(1) for a denial of freedom of religion, because a corporation cannot hold a religious belief.
o But the rare case of:
o R v Big M Drug Mart [1985] – SCC held that the fact that the corporation had no standing under s.24(1) to challenge the law was irrelevant. The challenge was based on the supremacy clause of s.52(1)
o Example of the general law being more generous in standing requirements than s.24(1):
Minister of Justice v Borowski (1981) – SCC granted standing to an anti-abortionist to bring an action for a declaration (general law, not Charter) that the Criminal Code’s abortion provisions were unconstitutional. Those provisions could never actually be applied to the applicant, who was neither a doctor nor a woman, but he was granted standing nevertheless.
o This illustrates that the availability of a declaration of invalidity under the general law is governed by more generous standing requirements than are the remedies authorized by s.24(1).
(e) Apprehended infringements
o s.24(1) will not authorize an application in respect of a merely apprehended future infringement.
i.e no one could bring a s.24(1) application after nothing more than an announcement of a new police interrogation procedure, even if the announced procedure was going to infringe the Charter.
o HOWEVER, the imminent threat of a Charter violation will satisfy s.24(1) (see R v Demers [2004])
(f) Court of competent jurisdiction
o s.24(1)’s remedies may be granted only by a “court of competent jurisdiction”.
o So, is a court to which a s.24(1) application has been made, confided to remedies within it usual jurisdiction? NO! A court CANNOT grant a remedy under s.24(1) unless it possesses jurisdiction, independently of the Charter, to grant a remedy
o s.52(1) is not restricted to a court of competent jurisdiction, but is possessed by any court or tribunal with the power to decide questions of law.
o A superior court = is always a court of competent jurisdiction
o A trial court = is a court of competent jurisdiction
o The SCC = is NOT a court of competent jurisdiction
o An administrative tribunal = is a court of competent jurisdiction
Weber v Ontario Hydro (1995)
o An administrative tribunal is a court of competent jurisdiction if its constituent statute gives it power over:
(1) The parties to the dispute
(2) The subject matter of the dispute
(3) The Charter remedy that is sought.
o SCC Held: a labour arbitrator was a court of competent jurisdiction which could grant a declaration and damages under s.24(1).
Applied Weber criteria:
Mooring v Canada (1996)
o Facts: applicant argued that the National Parole Board was a court of competent jurisdiction, and thus should have excluded evidence denying him parole since it was obtained in breach of the Charter.
o SCC Held: The board had power over (1) power parties (2) the subject matter of the dispute, however the Board did not have the power to grant the remedy sought.
o Thus, the Board was not a court of competent jurisdiction and had no power to award the remedy sought (excluding the evidence). Since the Board’s constituent statute required the Board to take into account “all available information that is relevant to a case”, the evidence was admissible.
o HOGG à “I prefer to read s.24(!) as a sufficient source of a court’s remedial power”
o But despite HOGG, the SCC has explicitly decided that an inferior court is a court of competent jurisdiction to grand a Charter remedy only if it has the power independently of the Charter to grant a remedy.
o R v 974649 [2001] –where the court held that the remedial power had to be derived from a source other than s.24 of the Charter, which in the case of a statutory court, meant “its enabling legislation”. But the court said that a remedial power may be implied as well as express, therefore, the provincial offences court was a court of competent jurisdiction with the power to make the award of costs against the Crown.
(g) Range of Remedies
o Subject to the important qualification that a remedy must be appropriate and just in all circumstances of the case, there is no limit to the remedies that may be ordered under s.24(1). They include “defensive” remedies, where the court nullifies or stops some law or act.
o The range of remedies available under s.24(1) also include “affirmative” remedies
o The award of damages is sometimes an appropriate and just remedy for a breach of Charter
o The award of costs is sometimes appropriate and just remedy for those Charter breaches that case inconvenience of delay to a litigant
o Selecting from such a broad range of remedies under s.24(1) presents the courts with a difficult and value-laden task.
o It has been suggested that the court’s discretion should be governed by 3 factors:
(1) The redress of the wrong suffered by the applicant
(2) The encouragement of future compliance with the Constitution
(3) The avoidance of unnecessary interference with the exercise of governmental power
(4) The ability of the court to administer the remedy awarded
o The 4th was added by L’HEURAUX-DUBE
(h) Supervision of court order
Doucet-Boudreau v Nova Scotia (2003)
o Facts: a superior-court judge in Nova Scotia gave an unusual order: “the court shall retain jurisdiction to hear reports from the government respecting the government’s compliance with the order”.
o Issues: could a judge retain jurisdiction to supervise compliance with a remedial order under s.24(1).
o SCC Held: Yes. Iacobucci and Arbour JJ (majority) pointed out that the Charter was supposed to receive a large and liberal construction, and this applied to the remedial power of s.24(1).
o Dissent: once the order to build the schools was made, the judge had fully discharged his duty, and it became the function of the executive to carry out the orders.
o HOGG à agrees with the minority. Supervision orders are remedies of last resort. Canada has had no history of governmental defiance of the constitution, and, until it does, there is no need for judicial supervision orders.
o Supervision orders are remedies of last resort.
o Canada has NO history of governmental defiance of the constitution, and, until it does, there if no need for judicial supervision orders
o However, in 2009, A judicial supervision order was made by the Federal Court in:
Abdelrazik v Canada [2009]
o Facts: a Canadian citizen, who visited Sudan (where he was born) was arrested without charge, imprisoned for several years and tortured. When released, his Canadian passport had expired, and efforts to obtain a new one, even a temporary one, to get back to Montreal where his family waited for him, was difficult.
o Issue: applicant brought an action for a declaration that his right to enter Canada under s.6(1) of Charter had been violated and for an appropriate and just remedy for the violation under s.24(1).
o Federal Court: found that the Canadian government had been complicit in the applicant’s arrest and imprisonment. The Canadian embassy in Sudan gave him assurances to aid and comfort, were actually blocking his return to Canada. Thus, the court ordered that an emergency passport be issued to enable the applicant to return to Canada.
o But based on Canadian government’s past history of bad faith in dealing with the applicant, the court also ordered that the applicant be brought before the Court after his return for the purpose of satisfying the Court that he had in fact returned home to Canada. And if this did not happen in a timely fashion, the court reserved the right “to take further orders as may be required to safely return Mr. A to Canada.”
(i) Appeals
o S.24(1) does NOT authorize an appeal
o The existence of a right to appeal will depend upon the rules f the court to which the s.24(1) application was made.
o Where there is no existing right of appeal, as will often be the case in criminal proceedings before the trial is over, there will be no appeal from the Charter ruling by the court of competing jurisdiction
ADMINISTATIVE TRIBUNALS
(a) With power to decide questions of law
o Can administrative tribunals decide Charter issues? YES – ONLY UNDER s.52(1), not s.24(1)
Douglas College (1990) – an arbitration board, which had been appointed by the parties under a collective agreement, but which was empowered by statute to decide questions of law, had the power to determine the constitutionality of a mandatory retirement provision in the collective agreement.
Cuddy Chicks v Ontario [1991] – a labour relations board, which had been created and empowered by statute to decide questions of law, had the power to determine the constitutionality of a provision in the empowering statute that denied collective bargaining rights to agricultural workers.
o In both these cases, s.24 was irrelevant, because the applicants were not seeking any remedy for breach of the Charter, not even a declaration of invalidity. The applicant was seeking a remedy that the tribunal was empowered to grand in the normal course of its jurisdiction.
o Thus, in Dougklas College, the professors who had been mandatorily retired were entitled to be reinstated only if the mandatory retirement provision was invalid; and
o In Cuddy Chicks, the union that had organized the agricultural workers was entitled to certification only if the agricultural workers exclusion was invalid.
o But the applicants did not look to s.24 for any remedy. Once s.52(1) had invalidated the apparently applicable law, the exercise of the tribunal’s ordinary statutory jurisdiction over the parties, the subject matter and the remedy would give to the applicants all that they asked for.
o In both these cases, the tribunals’ empowering statues expressly granted to the tribunals, the power to decide questions of law.
o But on 2 subsequent decisions, the SCC held that the absence of an express power to decide questions of law precluded an administrative tribunal from deciding Charter issues.
Nova Scotia v Martin (2003) AND Paul v BC (2003)
o SCC Held: the Tribunal had power to determine questions of law and therefore was presumed to have the power to determine the constitutional validity of any potential applicable law. SCC held that the power to decide questions of law may be implied as well as express
(b) Without Power to Decide Questions of Law
o Administrative tribunals that lack the power to decide questions of law also lack the power to refuse to apply laws on the ground of unconstitutionality.
o SCC held that the power to decide questions of law may be implied as well as express. This means that most administrative tribunals with adjudicative functions will possess the power to decide questions of law.
(c) Preliminary inquiry judge
o PROBALY OVERRULED:
R v Seaboyer (1991) – a preliminary inquiry had no jurisdiction under s.52(1) to determine the constitutionality of a rape-shield law which purported to limit the accused’s right to cross-examine the victim of a sexual assault.
o The decision in Seaboyer predates Martin and Paul, and is inconsistent with those decisions.
o Clearly, the preliminary inquiry judge has an implied power to decide questions of law, since he or she has to rule on the validity of the charge and the admissibility of evidence presented at the inquiry.
SCRUTINY BY MINISTER OF JUSTICE
LEGISLATIVE ENFORCEMENT
o
SECTION 35
(a) Text of s.35
s.35 – gives constitutional protection to “the existing aboriginal and treaty rights of the aboriginal peoples of Canada”.
(b) Outside Charter of Rights
o The definition of “aboriginal peoples of Canada” includes “the Indian, Inuit and Metis peoples of Canada”.
o s.35 is located outside the Charter (which occupies ss. 1 to 34) and the rights referred to in s.35 are not qualified by s.1, nor are they subject to legislative override under s.33, nor are the rights effective only against governmental action, as stipulated in s.32.
o On the other hand, the disadvantage is that the rights are not enforceable under s.24, a provision that permits enforcement only of the Charter.
(c) “Aboriginal peoples of Canada”
o Indian, Inuit, and Metis people, and Non-Status Indians (under s.35(2))
R v Powley [2003]
o Since its difficult to identify who Metis people are, the court created 3 broad factors to identify them:
(1) Self-identification of Metis community
(2) Ancestral connection must be traced
(3) Community acceptance and member of modern Metis community
(d) “Aboriginal and Treaty Rights”
(e) “Existing”
o S35 = protects existing aboriginal rights and treaty rights does not exclude tights that coame into axistance after 1982 because such rights could only be treaty rights
o s.35(3) – For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreement or may be so acquired.
o The last phrase, “or may be so acquired”, makes clear that treaty rights are acquired after 1982 are protected by s.35.
o What is the status of aboriginal or treat rights that had been extinguished or regulated before 1982?
R v Sparrow (1990)
o PRINCIPLE: the word “existing” in s.35 = “unextinguished”. A right that had been validly extinguished before 1982 was not protected by s.35 AND the Act extinguishing the right must be clear and plain of its intention to extinguish the aboriginal right.
o SCC Held: the court refused to imply an extinguishment from the admittedly extensive regulatory control of the Fisheries Act. While an aboriginal right could be extinguished by federal statute before 1982, a federal statute would have that effect only if the intention to extinguish was “clear and plain”. The Fisheries Act and its regulations (although they prohibited fishing, except under a statutory licence) did not demonstrate “a clear and plain intention to extinguish the Indian aboriginal right to fish. Therefore, the right was an “existing” right within the meaning of s.35.
o The effect of the word “existing” in s.35 was to exclude from constitutional protection those rights that had been validly extinguished before 1982.
o The court attributed an expansive or liberalizing effect to the word “existing”: the word “existing” meant that the guaranteed rights are “affirmed in a contemporary form rather than in their primeval simplicity and vigour”. For example, hunt and fish by bow and arrow where not limited to these means and a right to trade in the form of barter in modern times extend to the use of currency, credit, etc.
(a) “Recognized and Affirmed”
Sparrow:
o The rights protected by s.35 are not absolute, they are subject to regulation by federal laws, provided the laws met a standard of justification like that of s.1. A justified impairment would have to pursue an objective that was “compelling and substantial”.
o For example, the conservation and management of a limited resource would be a justified objective, but “the public interest” would be too vague to serve as a justification.
o In the Sparrow case itself, the court did not feel able to decide whether the net-length restriction would satisfy the standard of justification.
o SO, IF A LAW HAD THE EFFECT OF IMPAIRING AN EXISTING ABORIGINAL RIGHT, IT WOULD BE SUBJECT TO JUDICIAL REVIEW TO DETERMINE WHETHER IT WAS A JUSTIFIED IMPAIRMENT
o Justified Impairment = must pursue an objective that is “compelling and substantial”
i.e. if a sufficient objective is found, then the law must employ a means that were consistent with “special trust relationship” between government and aboriginal people
R v Gladstone (1996)
o Issue: whether restrictions on the sale of herring spawn on kelp could be justified in their application to aboriginal people who had an aboriginal right to sell the spawn.
o SCC Held: applied Sparrow test that holders of aboriginal rights would have to be given priority in access to the resources such as fishery.
o BUT the court held that this was not acceptable for a right without internal limitations. The Sparrow requirement of justification did NOT require aboriginal priority, but could be satisfied by “objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups”
o The court conclude that there was insufficient evidence to determine whether the regulatory scheme for the sale of herring spawn was justified, and remitted the issue to a new trial.
NOTE:
è This ruling on justification seems to be a departure from the Sparrow’s instance on “compelling and substantial” objectives.
è This runs the risk that later courts will not impose the strict standards of justification on regulatory schemes that derogate from those aboriginal or treaty rights that are not limited by their own terms.
(b) Application to Treaty Rights
R v Badger [1996]
o Sparrow only concerned aboriginal rights. But because s.35 applied to treaty rights and aboriginal rights, the doctrine of Sparrow therefore applies to BOTH treaty rights AND aboriginal rights
o HOGG à the standard of justification for a law impairing a treaty right should be very high indeed!
*R v Marshall [1999]
o There is a difference between DEFINING the treaty right and REGULATING the treaty right
o “Only those laws that would take the aboriginal catch BELOW the qualities reasonably expected to produce a moderate livelihood, should be REGULATING the treaty right...and those laws would need to satisfy the Sparrow Test of Justification...”
o WHEN DEFINING A TREATY RIGHT, IT DO NOT NEED TO SATESFY THE SPARROW TEST
(c) Application to Extinguishment
o Sparrow = s.35 to protect aboriginal and treaty rights from extinguishment by federal legislation
o Therefore, the Sparrow Test of Justification, if satisfied, would SAVE a federal law that purported to REGULATE an Aboriginal or treaty right....but not a federal law that purported to extinguish the right
(d) Application to Provincial Laws
o What effect does s.35 have on provincial laws?
R v Badger [1996]
“Provincial law was capable of infringing a treaty right, provided that the law could satisfy the Sparrow Test of Justification”
o HOWEVER, unsatisfactory because of s.88, where a provincial law could impair an aboriginal right
(e) Duty to consult aboriginal people
o S.35 = gives constitutional protection to special relationships between the Crown and the Aboriginal People
Haida Nation v BC (2004) – SCC held that s.35 obliged the Crown (federal and provincial) to consult aboriginal peoples when their land would be affected (cutting of trees). -The duty to consult and accommodate was established. S.35 obliged the Crown to consult within the Hadia people and accommodate their concerns.
o Held: In NOT doing so, the Crown breached s.35. However, the duty to consult does NOT extend to a private party like Weyerhaeuser.
o Obligations are ONLY on the Crow
o Duty to consult extends to the Crown in the right of the federal government of Canada
o The Crown has the responsibility for eh aboriginal rights and affairs to match the federal legislation of s.91(24).
o In Haida, it was the PROVINCIAL Crown land that was the subject of the aboriginal claim. So the court held that PUBLIC LANDS OF THE PROVINCE WERE SUBJECT TO ABORIGINAL INTERESTS. The duty to consult extended to the Crown’s right of the province
o s.35(1) – declares that the federal and provincial governments “are committed to the principle” that, before any amendment is made to s.91(24) or to s.35 or to s.25, a constitutional conference will be convened to which representative of the aboriginal peoples will be invited to participate.
o Through s.35(1), the aboriginal peoples have gained entry to the constitutional amendment process.
SECTION 25
o s.25 – part of the Charter, but it does not create any new rights. It is an interpretative provision, included to make clear that the Charter is not to be construed as derogating from “any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada”
o In the absence of s.25, it would perhaps have been arguable that rights attaching to groups defined by race were invalidated by s.15 (equality).
Corbiere v Canada (1999) – SCC struck down the residence requirement (in order to vote, an Indian must live on the reserve) under s.15 on the basis that it discriminated against those Indian band members who lived off the band’s reserve.
o s.35 affords Constitutional protection from legislative impairment for the rights it covers. Therefore, it leaves s.25 with little work to do.
o But as Corbiere suggested: “The class of rights saved by s.25 is probably wider than the class of rights guarantee by s.35 because s.25 is “other” rights of freedoms (protected from the challenge of s.15)...
S. 25 is NOT qualified by the word “existing”...”
SECTTION 35.1 CONSTITUION
o Aboriginal people fear that their constitutional protection is still vulnerable, even within s.91(24), s.25, and s.35.
o Therefore, s.35.1 was added
o S.35.1 = the federal and provincial government are committed to do the principle that, before an amendment is made to s.91(24), or s.35 or s.25, a constitutional conference will take place with representatives of the aboriginal people
Interpreting the Charter OF Rights and Freedoms
HISTORY OF CHARTER
o Part of the Constitution of Canada and cam be altered only by constitutional amendment
PROTECTION OF CIVIL LIBERTIES
o The Charter will NEVER become the main safeguard of civil liberties in Canada.
o The main safeguards will continue to be the democratic character of Canadian political institutions, the independence of the judiciary and the legal tradition of respect for civil liberties
ENHANSMENT OF NATIONAL UNITY
o Charter issues do NOT call in question the legitimacy of Canada as a national political assumption that on issues of human rights, it is appropriate to have a single Canadian policy.
o Thus, the Charter is a UNIFYING INSTRUMENT.
EXPANSION OF JUDICIAL REVIEW
(a) New Grounds of Review
o The major effect of the Charter has been an expansion of judicial review.
o Before 1982, JR was confined to federalism grounds; it is NOW subject to Charter grounds.
(b) Vagueness of Concepts
o Most Charter rights are not very specific, so the meaning of these must be determined by the courts.
o Therefore, the SCC has willingly embraced the new powers conferred on it by this vague language and the court has interpreted “fundamental justice” (s.7) as a substantive concept, and used it to strike down a range of criminal laws, as well as restrictions on abortion.
o Judicial activism since 1982 has been described as “the Charter review”
o But, JR on Charter grounds rarely defeats a desired legislative objective.
i.e. After a law is struck down, the mechanisms of ss.1 and 33 typically leave room for the law to be replaced with another version that still carried out the legislative objective, and most of the time, a replacement law is enacted.
(c) Role of s.1
o There must be a compromise between conflicting values.
o But when appeals have been exhausted, it is the final decision of the court that prevails over the judgement of the government and legislature that enacted the law.
o The courts will have to decide whether the Parliament or Legislature, in enacting an abridgement of a civil liberty, has drawn the line in the “right” place.
(d) Role of s.33
o Once this declaration has been enacted, the law that is protects will not be touched by the overridden provision of the Charter
o Therefore, NO OVERRIDE IS POSSIBLE WITH: s.2; ss.7 to 14; s.15; ss. 3-5; s.6; ss.16 to 23; or s.28.
DIALOGUE WITH LEGISLATIVE BRANCH
(a) The Idea of Dialogue
- The court’s Charter decisions are not imposing a veto on desired legislative policies, but rather as starting a “dialogue” with the legislative branch as to how best reconcile the values of the Charter with the policies for the benefit of the community.
(b) Second Look Cases
R v Mills (1999)
o PRINCIPLE: Example of dialogue.
o Issue: issue was the validity of a 1997 statutory regime for the disclosure to the accused of confidential records in sexual assault cases. The SCC had spoken on the issue two years earlier in O’Connor (1995)
o SCC Held: SCC upheld the 1997 statute not because of s.1, but the court invoked the concept of dialogue as a reason for deferring to Parliament’s judgment. The statute should be upheld as providing sufficient protection for the s.7 right.
o MCLACHLIN and IACOBUCCI à said that O’Connor (previous case in sequel) was “not necessarily the last word on the subject” and that “the law develops through a dialogue between courts and legislatures.
R v Hall [2002]
o Received a second attempt by Parliament to define the grounds for denying bail to an accused person in custody.
o Held: the quotes phrase from Morales [1992] was too vague to satisfy s.11(e) of Charter, which prohibited the denial of bail.
o After this decision, Parliament replaced the invalid public-interest ground with a new provision that authorized a new denial of bail
But:
Sauve v Canada (2002) –
o reviewed a second attempt by Parliament to impose voting disqualification on prisoners.
o Held: The court struck down a provision in the Canada Elections Act first on the basis that the provision disqualified all persons serving prison sentences from voting (this violated s.3, right to vote). Then struck down a provision disqualifying prisoners serving a sentence of two years or more.
o Therefore,Neither were upheld under s.1.
o Parliament and courts dialogue did not meet.
However:
Canada v JTI-Macdonald Corp [2007]
o Court reviewed a second attempt by Parliament to ban the advertising to tobacco products.
o The first Act had been struck down by the court in the RJR case as a breach of freedom of expression that was too sweeping to satisfy the minimum –impairment branch of s.1 justification.
o The second Act took up suggestions from RJR
o Held: that the changes to the original Act led the court to hold that the minimum-impairment branch of s.1 justification was now satisfied
(c) Remedial Discretion
o Concept of dialogue has also affected the reasoning and results of constitutional cases in the SCC’s willingness to suspect a declaration of invalidity after a finding that is unconstitutional.
o The rationale is: where the Court has found a law to be unconstitutional, the Court would prefer the legislature to design the appropriate remedy
o CHOUDHY and ROACH à “the delayed declaration of invalidity has evolved beyond its origins as an emergency measure and emerged...as a powerful dialogue device that allows courts to remand complex issues to legislative institutions”
o This dialogue rationale is usually unacknowledged by the Courts, but it was articulated in Corbiere v Canada [1999]
(d) Dialogue with Government
o Legislative reaction to a SCC decision = “dialogue” (even though the two never actually talk to each other)
o The court simply issues its judgements and the governments take whatever action they believe without infringing the Charter
POLITICAL QUESTIONS
o “All constitutional interpretations have political consequences”
o There is no political questions doctrine in Canada.
o In Operation Dismantle as per WILSON à “there is no doctrine of political questions in Canadian constitutional law. If a case raised the question whether executive or legislative action violated the Constitution, then the question had to be answered by the Court, regardless of the political charter of the controversy”.
Re Canada Assistance Plan (1991)
o Issue: Whether Parliament could place a 5% cap on the growth of its payments to the provinces under open-ended cost-sharing agreements was a political question when the policy was announced in the federal budget.
Fed’s argument: The issue is purely political, not for the courts.
o SCC Held: It became a legal question determinable by the courts and held there were no prohibitions in Canada’s constitutional law that would preclude the proposed legislation.
o Thus, no questions could be more “political” than the questions whether the province of Quebec could secede unilaterally from Canada. And yet, the question is also one of constitutional law, requiring a consideration of how the Constitution of Canada would govern the succession of a province.
Succession Reference [1998]
o SCC held: this question was a question that should be answered on a reference. Under the Constitution of Canada, a succession could be accomplished ONLY in compliance with the amending procedures of the Constitution, and those procedures precluded a unilateral succession by a province.
CHARACTERIZATION OF LAW
(a) Comparison with federalism review
o REVIEW:
o 2 stage process of judicial review of legislation under the Charter of Rights:
1) To determine whether the challenged law abridges (omits) a Charter right. If not, then....
2) Determine whether the law can be justified under s.1
o In stage one, there are 2 related issues that have to be resolved in every case:
1) The characterization of the challenged law
(examination of the purpose or effect of challenged law in order to determine whether it limits a Charter right)
2) The meaning of the asserted right
(an interpretation of the language of the Charter in order to determine whether it has been abridged by the challenged law)
o The characterization of laws for the purpose of Charter review reflects a similarity and a difference between Charter review and federalism review.
o Federalism – The courts attempt to ascertain the “matter” or “pith and substance” of a challenged law; then they decide whether that matter comes within one of the classes of subjects.
i.e. Lambe – provincial law with purpose of levying a direct tax on a bank was held valid notwithstanding that banking is a federal matter.
o This rule is the reverse of the federalism rule: that tolerates effects on matters outside the jurisdiction of the enacting legislative body so long as the purpose (matter or pith and substance) of the law is within the jurisdiction of the enacting body.
(b) Purpose or effect
o A law will offend the Charter if either its purpose or its effect is to abridge a Charter right.
R v Big M Drug Mart (1985) – SCC held the federal Lord’s Day Act abridged the guarantee of freedom of religion in s.2(a). The history of the Act established that its purpose was the religious one of compelling the observance of the Christian Sabbath. That purpose was an abridgement of freedom of religion, which invalidated the legislation. Legislation with an invalid purpose cannot be justified under s.1.
R v Edwards Books and Art (1986) – SCC held that the history established that the purpose of the Sunday-closing law was the secular one of prescribing a uniform pause day for retail workers. Therefore, the law passed the purpose test. However, the court went on to consider the effect of the law, and held that the effect of the law was to impose a burden on those retailers whose religious beliefs required them to abstain from work on a day other than Sunday. That effect was an abridgement of freedom of religion. Therefore, this Sunday-closing law also abridged the Charter right. However, the court relied on the benign purpose of the law to uphold it under s.1.
o Therefore, while either PURPOSE or EFFECT can invalidate legislation, Canadian legislative bodies rarely enact laws that have the PURPOSE of abridging a Charter right!
(c) Trivial effects
R v Jones (1986)
o PRINCIPLE: If effect of a law on a Charter right is trivial, there is no breach.
o Facts: The accused was charged with a breach of Alberta’s School Act, because he was educating his children in the basement of the fundamentalist church of which he was pastor. He did not obtain approval for his operation. He refused to apply for approval because he claimed that it was contrary to this religion to request the State for permission to do what was God’s will.
o SCC Held: The Act did not violate freedom of religion. Where the effect of a law on a Charter right was “trivial on insubstantial”, there was no breach of the Charter, and that was the case here.
(d) Severance
o The Lord’s Day Act was the only law to fail the purpose test in the SCC (Big M Drug Mart) because of its inadmissible religious purpose.
o in other cases where there has been a holding of unconstitutionality, and infected only one or a few provisions of the challenged statute; those provisions were “severed” from the rest of the state enabling the rest of the statute to survive.
(e) Reading down
o Where the language of a statute will bear two interpretations, one of which would abridge a Charter right, and one of which would not, the Charter can be applied simply by selecting the interpretation that does not abridge the Charter right.
INTERPRETATION OF CHARTER
(a) Progressive interpretation
Edwards v AG Can (1930) – Lord Sankey: “a living tree capable of growth and expansion within its natural limits”.
o The requirement of flexibility or progressive interpretation obviously applies to the Charter no less than other constitutional provisions
(b) Generous Interpretation
Edwards v AG Can (1930)
LORD SANKEY à living tree metaphor means that a constitution should receive a generous interpretation. The provisions of the Constitution should be given “a large and liberal interpretation”
o A generous interpretation of the Charter CANNOT be justified as increasing the powers of the legislative bodies; it will have the effect of reducing their powers.
o In R v Oakes – the court decided to prescribe a single standard of s.1 justification for all rights, to make that standard a high one, and to case the burden of satisfying it on the government. This meant that the test of justification be a stringent one.
o This is inconsistent with the instance that the guaranteed rights be given a generous (broad) scope.
o QUESTION:
è Does it make a difference whether the Court gives a WIDE interpretation to rights and relaxed the standard of justification under s.1? Or
è gives a NARROW interpretation to rights and maintains the stringent standard of justification called for by Oakes?
o ANSWER
è Most judges will be concerned to stem the wasteful flood of litigation. This can be accomplished only by restricting or NARROWING the scope of the Charter rights (Oakes test of justification)
(c) Purposive Interpretation
o A “purposive” interpretation of the Charter rights is an attempt to ascertain the purpose of each Charter right, and then to interpret the right so as to include activity that comes within the purpose and exclude activity that does not.
o The court assumes that this is a “general” approach
o The effect of the purposive approach – going to NARROW the scope of the right
o HOGG à this approach seems to work perfectly with the stringent standard of justification under s.1.
o Thus, once a right has been confined to its purpose, it seems obvious that a government ought to have to satisfy a stringent standard of justification to uphold legislation limiting the right.
(d) Process as Purpose
o The usefulness of a purposive interpretation invites the question whether the Charter has a single over-arching purpose which would illuminate each provision?
o A process-based theory of judicial review offers 2 important advantages:
(1) It supplies a helpful context for interpreting particular guarantees (i.e. freedom of expression)
(2) It offers a solution to the problem of legitimacy of judicial review
o HOGG à does not think this process provides a satisfactory general or comprehensive theory of judicial review. “There is no escaping the fact that judicial review enables the judges to strike down those products of the democratic process that fail to respect those aspects of individual autonomy that are guaranteed by the Charter!”
(e) Hierarchy of rights
o s.33 – override of some rights by the inclusion of a notwithstanding clause in the overriding statute.
o The rights that CAN BE overridden = s.2, ss.7-14, s.15 (“common rights”)
o The rights that CANNOT be overridden = ss.3-5, s.6, ss. 16-23, s.28 (“privileged rights”)
o Therefore, s.33 creates these 2-tiers of rights
o s.28 (sexual equality) – may be exempt from the limitation power of s.1 as well as the override power of s.33. That places s.28 at the top of the hierarchy.
o s.35 (Aboriginal and Treaty Rights) – are not subject to s.1 nor s.33 because s.35 is outside the Charter.
o However, this also means that s.24, which provides a remedy for breach of Charter rights, does NOT apply to s.35.
(f) Conflict between rights
o The above hierarchy of rights reflects differences in the vulnerability of the right to legislative abridgement.
o BUT it does NOT imply that the “privileged rights” must take priority over the “common rights” when they come into conflict.
o The Charter makes NO provision for other kinds of conflicts between rights.
B.C Government Employees’ Union v British Columbia [1988]
o Issue: Chief justice of BC had issued an injunction against a union to prohibit its members from picketing the courthouses. Union applied to have this set aside because of freedom of expression.
o SCC Held: upheld the injunction because it was a limit on freedom of expression, but justified under s.1 as a reasonable and demonstrably justified limit.
o But MCINTYRE J à the right of access to the court was “Charter-protected” and therefore, the injunction could NOT be a breach of freedom of expression. Therefore, he assumed that the freedom of expression should give way to the more specific right of access to the courts.
R v Keegstra (1990)
o Facts: A person accused of wilfully promoting hatred against a racial group (Jews), which is the hate propaganda offence of the Criminal Code, attacked the offence as an abridgement of freedom of expression.
o Defending Code: By protecting racial groups from hateful messages, if furthered the values of racial equality (s.15) and multiculturalism (s.27).
o SCC Held: The provision did abridge freedom of expression, but the law was justified under s.1.
o In both cases, the conflict between rights was resolved through s.1.
o Only MCINTYRE took the position that the scope of a right (freedom of expression) should be NARROWED to accommodate the exercise of another right (access to courts).
o This is called “Mutual Modification”: where conflicting heads of legislative power have been accommodated in federalism cases.
o BUT THE COURT HAS GENERALLY AVOIDED ENGAGING IN “MUTUAL MODIFICATION” (or definitional balancing) IN ITS CHARTER JURISPRUDENCE...
o Thus, when other rights are invoked in support of a challenged law, the conflict is to be resolved by application of the justificatory principles of s.1. In this way, the court does NOT assign priorities to rights, except in the context of a specific law in a particular case.
o In other words, the court prefers “ad hoc balancing” to “definitional balancing” (or “mutual modification”) when resolving conflicts between rights.
o The Canadian court has felt free to give Charter rights a broad interpretation, knowing that s.1 will allow laws imposing reasonable limits on the rights to be upheld.
See:
R v O’Connor [1995]
o Principle: to NARROW the scope of the one Charter right to accommodate the exercise of another.
o Issue: where the court had to decide whether and how an accused in a sexual assault case should be able to gain access to the counselling and medical records of the complainants. The court had to establish for the FIRST TIME, the common law principles which would strike the proper balance between the accused’s right (s.7), to full answer and defence, and the witness’s rights under s.7 and s.8, to a reasonable expectation of privacy.
o SCC Held: although employed the language of s.1, the effect of the decision is to NARROW the scope of the one Charter right to accommodate the exercise of another.
o Therefore, this establishes that definitional balancing (or mutual modification) DOES have a place in Charter jurisprudence, although one that only arises in special circumstances.
SOURCES OF INTERPRETATION
(a) Pre-Charter Cases
o Classification for Charter purposes does NOT disregard the incidental effects of a law.
o If a law has the effect of abridging (omitting) a Charter right, then the Charter is implicated and, if s.1 does NOT supply justification, the law WILL BE INVALID.
(b) American Cases
o One reason for the broader interpretation of the rights in Canada is the presence of s.1.
o The Canadian courts regard s.1 as an important difference between the USA constitution and the Canadian constitution; where one suggests a BROADER scope for the guaranteed rights in Canada.
(c) International Sources
o Canada bound by the International Covenant on Civil and Political Rights, which is only binding at international law.
o International Covenant on Civil and Political Rights includes an optional protocol to individuals...may petition to the Human Rights Committee of the United Nations
o Human Rights Committee of the United Nation decisions are relevant to the interpretation of the Charter
o Canada is a member or the Organization of American States (OAS) and Canadians may petition the Inter-American Commission on Human Rights if they claim a breach by Canada of their rights under the Declaration.
o Even customary (non-treaty) international law can occasionally served as an aid to interpretation of the Charter
R v Hape [2007]
o Issue: whether the Charter applied to the investigations of Canadian police in a foreign county (Turks and Caicos Islands)
o SCC Held: s.32 should be interpreted into conformity with application principles of customary international law, of which the most relevant principle was that of “respect for the sovereignty of foreign states”.
PRIORITY BETWEEN FEDERAL AND CHARTER GROUNDS
o When a law is challenged on the federal and Carter grounds, it is the FEDERAL GROUND THAT IS MORE FUNDAMENTAL AND OUGHT TO TAKE PRIORITY OVER THE CHARTER RIGHT
COMMENCEMENT OF CHARTER
o s.58 Constitution = an Act is to come into force on the day to be fixed by proclamation
o A statute/regulation/by-law which was enacted before April 17, 1982, and which is inconsistent with the Charter, will be rendered “of no force or effect” by the supremacy clause of the constitution
Mack v Canada (2002) – Since the law (Chinese head tax) was repealed in 1923, and not in force at the commencement of the Charter, those whose rights were denied by the laws and had no remedy under the Charter.
o Thus, no remedy under s.24(1) would be available in respect of action taken before April 17, 1982, because the remedy is available only to anyone whose rights or freedoms, have been “as guaranteed by this Charter”, have been infringed or denied.
o Action of an executive or administrative kind, such as search, seizure, arrest or detention, which was taken before April 17, 1982, cannot be a violation of the Charter, because the Charter was not in force at the time of the action.
o But some provisions of the Charter have been interpreted in a way that event occurring before April 17, 1982 are relevant to their application, despite the exclusively prospective operation of the Charter.
i.e. using s.13; using s.11(b); using s.12
o Another way is where they create a status or a condition that constitutes after April 17, 1982 and that leads to a breach of Charter. (Benner v Canada [1997])
UNDECLARED RIGHTS
o s.26 = makes it clear that the Charter is NOT to be construed as taking away any existing rights or freedoms.
o Rights and freedoms are protected by the common law or by statute, and these will continue to exist notwithstanding the Charter.
Application of the Charter of Rights and Freedoms
BENEFIT OF RIGHTS
(a) The Issue
o Who is entitled to the benefit of the rights guaranteed by the Charter?
(b) Everyone, Anyone, Any Person
o s.2,7,8,9,10,12 and 17 of Charter states “everyone has the right”
o ss.11 and 19 of Charter states “any person”
o s.20 of Charter states “any member of the public”
o s.24 of Charter states “anyone”
o Some of the rights, although guaranteed to “everyone” or “any person”, are by their very nature NOT available to a corporation.
i.e. the right to freedom of conscience and religion in s.2(a)
i.e. the right to fundamental justice under s.7 and s.15 (“every individual)
i.e. the right to be arbitrarily detained or imprisoned under s.9
i.e. the right to reasonable bail under s.11(e)
i.e. the right to testify in s.11(c)
i.e. the right against self-incrimination in s.13
i.e. the right of a witness to an interpreter in s.14
o But how about s.24 which is available to “anyone”? Doesn’t “anyone” include a corporation?
o YES = and can therefore be used by a corporation to enforce a right that does not apply to a corporation.
o Although it is wrong to assume that a corporation can NEVER enforce a right that does not apply to a corporation (see Big M Drug Mart – where the corporation had standing to make this argument, despite the fact that s.2(1) did not apply to a corporation)
o A foetus is NOT a legal person and is not entitled to a right to life under s.7, or any other right.
(c) Individual
o s.15 = confers equality rights on “every individual”
o This means – natural persons ONLY.
o HOGG à it can be argued that the French version of s.15 uses the word “personne” in the place of individual. This can suggest that ARTIFICIAL persons are also covered (i.e. corporations)
o Big M Drug Mart PRINCIPLE: Even if s.15 does not extend to corporations, corporations will still be able to rely on s.15 as a defence to a criminal charge laid under a law that is invalid by virtue of unconstitutional discrimination against individuals
o The word “individual” does NOT include a foetus. The word “individual” does NOT include the estate of a deceased individual because s.15 = rights to dies with the individual”
(d) Citizen
o s.7 = “everyone”. “every human being who is physically present in Canada and by virtue of such presence amendable to Canadian law”
o So, everyone present on Canadian soil
o There is no independent requirement of a connection with Canada in order to receive the benefit of a Charter right
o Singh (1985) – anyone who entered Canada, however illegal, was instantly entitled to assert s.7 rights, which apply to “everyone”.
o Being a Canadian citizen is NOT necessary to invoke most rights.
i.e. “Everyone” in s.7 includes “every human being who is physically present in Canada”.
o Citizenship is required for voting rights (s.3), mobility rights (s.6) and minority language educational rights (s.23).
o What about corporations?
o HOGG à “the term ‘citizen’ excludes corporations”
o It is obvious that a corporation cannot possess a voting right (s.3) or the right to educate its children in a minority language (s.23), BUT it is not impossible for mobility rights (s.6) to be extended to corporations.
o But this would cause a radical change in Canada’s constitutional law...
(e) Permanent Resident
o s.6(2) = mobility rights. “every person who has the status of a permanent resident of Canada”
o This belongs to persons who have “the status” of a permanent resident
o This does NOT include a corporation
BURDEN OF RIGHTS
(a) Both level of government
o Both levels of government are bound by the Charter
o The Canadian Bill of Rights applies only to the federal government.
(b) Parliament or Legislature
o The references in s.32 to the Parliament and a Legislature makes it clear that the Charter operates as a limitation on the powers of those legislative bodies.
o So, any statute enacted by either of these, which is inconsistent with the Charter, will be OUTSIDE the power (ultra vires) the enacting body and therefore, INVALID
New Brunswick Broadcasting Co. v Nova Scotia (1993)
o Issue: whether the Nova Scotia legislative assembly, which had prohibited the televising of its proceedings, was bound by the Charter.
o SCC Held: The Charter applied to the legislative assembly. The power of the assembly “to exclude strangers” (including tv media) from its deliberations, was immune from Charter review. This was premised on the theory that Parliamentary privileges that are needed to secure the orderly functioning of a legislative assembly, and which include the power to exclude strangers, are part of the “Constitution of Canada”.
o If this is so, then the Charter DID NOT apply, because “one part of the Constitution cannot be abrogated or diminished by another”
o (privilege. Parliamentary privilege also includes freedom of speech in debate, including immunity from legal proceedings for things said in debate)
o Court also states: The word “legislature” in s.32 should be interpreted as making the Charter applicable to a legislative assembly. The same conclusion would apply to the word “Parliament” in s.32, making the charter applicable to actions of the Senate or the House of Commons as well as to those of Parliament as a whole
o But HOGG à “the decision that the legislative assembly of Nova Scotia came within the word “legislature” in s.32 of the Charter entails the legal conclusion that ALL the assembly’s powers, including those conferred by the Constitution, were subject to the Charter. It is surely unacceptable that every exercise of parliamentary privilege powers by a legislative assembly should be exempt from Charter review...This is not to say that a legislative assembly may never act in derogation of a guaranteed right; it is only to say that a rule adopted by a legislative assembly in derogation of a Charter right would HAVE TO be justified as a reasonable limit under s.1”
To what extent is legislative silence subject to Charter review?:
Vriend v Alberta (1998)
o PRINCIPLE: No positive duty on Legislature to act unless they have already created a statute which is silent on the matter in question.
o Facts: Plaintiff argued that he had been dismissed because he was homosexual and challenged the Alberta human rights statute under s.15.
o P’s argument: the statute failed to prohibit discrimination in employment on the ground of sexual orientation
o Alberta’s argument: the Legislature had chosen not to deal with the issue and the Charter did not apply to a failure by the Legislature to Act.
o SCC Held: this was a denial of equal benefit of the law, and upheld the Charter challenge.
o BUT, having enacted a relatively comprehensive statute providing redress for acts of discrimination, the Legislature subjected itself to the Charter, including the obligation to cover everyone who, under s.15, had a constitutional right to be included.
o NOTE:
è If NO HUMAN RIGHTS statute existed, then the Charter challenge would have failed because there would be no statute or other governmental act to which the Charter would apply.
o To what extend is a legislative exclusion subject to Charter review?:
Dunmore v Ontario (2001)
o PRINCIPLE: Legislature is under a duty to act/extend protections once they have already created legislation.
o Issue: a challenge was brought to the exclusion of agricultural workers from Ontario’s labour relations statute.
o SCC Held: Rejected the equality guarantee of s.15 as a basis for the challenge because employment status is not an analogous ground that is protected under s.15.
o BASTARCHE Jà This was not a case where “no legislation had been enacted in the first place”. Having gone this far, the Legislature was under a positive duty to extend the protections of labour relations law to those employee groups who could not otherwise successfully organize. The exclusion of the agricultural workers was a breach of s.2(d) (freedom of association) and the provision excluding them was severed from the statute.
(c) Statutory authority
o Because s.32 makes the Charter applicable to the federal Parliament and the provincial Legislatures, the Parliament and Legislatures have lost the power to enact laws that are inconsistent with the Charter.
o Thus, the limitations on statutory authority which are imposed by the Charter, will flow down the chain of statutory authority and apply to regulations, by-laws, orders, decisions and all other action which depends for its validity on statutory authority.
o The distinctive characteristics of action taken under statutory authority is that: it involves a POWER OF COMPULSION that is not possessed by a private individual or an organization. This POWER OF COMPULSION MUST CONFORM TO THE CHARTER.
o Where Parliament or a Legislature has delegated a power of compulsion to a body or person, then the Charter will apply to the delegate.
i.e. Ramsden (1993) – Charter applies to a municipal by-law, made under statutory authority, that purported to prohibit postering on municipal public property.
i.e. Slaight Communcis v Davidson (1989) – Charter applied to an arbitrator awarding a remedy for an unjust dismissal; the arbitrator ordered the employer to provide the dismissed employee with a letter of reference. But had the arbitrator’s authority simply come from the consent of the parties, no exercise of statutory power would have been involved, and the Charter would not have applied.
i.e. Black v Law Society of Alberta (1989) – Charter applied to the rules of the Law Society of Alberta.
i.e. R v Lerke [1986] – Charter applies to a private person making a citizens’ arrest under statutory authority
o Therefore, these examples illustrate that the bodies or persons possessing statutory authority are often independent of the federal government or the provincial government.
o The Charter applies to the exercise of statutory authority regardless of whether the actor is part of the government or is controlled by the government. It is the exertion of a “power of compulsion” granted by statute that causes the Charter to apply
o Outside the sphere of government, the Charter will apply ONLY to persons or bodies exercising statutory authority!
o HOGG à “in my view, it is the “power of compulsion” that makes the Charter applicable to bodies exercising statutory authority”
Stoffman v Vancouver General Hospital (1990)
o PRINCIPLE: hospital NOT subject to Charter because the hospital exercised NO “powers of compulsion” in providing medical services.
o SCC Held: the Charter did NOT apply to the mandatory retirement policy of a hospital that required its doctors to give up their admitting privileges when they reached the age of 65.
o Issue: was the hospital bound by the Charter?
o Reasoning: Although established and empowered by statute, and undeniably performing a public service, the hospital did not exercise any powers of compulsion in providing medical services (and it was NOT controlled by the government). Therefore, the hospital was NOT bound by the Charter.
Compare with:
Eldridge v BC (1997)
o PRINCIPLE: hospital WAS subject to Charter because it was implementing a specific government policy.
o Facts: The hospital did not provide sign-language interpretation for deaf persons seeking medical services, an omission that would be a breach of s.15 (equality guarantee) if it were made by an entity that was bound by the Charter.
o Issue: was the hospital bound by the Charter?
o SCC Held: SCC pointed to BC’s Hospital Services Act, which funded the provision of hospital services, and held that the hospital was “implementing a specific government policy or programs” (which was not the case in Stoffman).
o HOGG à Eldridge is inconsistent with Stoffman, and the absence of statutory compulsion should have led to the conclusion that the Charter did NOT apply in Eldridge.
Re Bhindi (1986)
o PRINCIPLE: collective agreements (union contracts) are NOT subject to the Charter, but seen as a private contract.
o Issue: whether a “closed-shop” (a workplace where the employer has agreed to hire only members of a union) provision in a collective agreement violated the guarantee of freedom of association in the Charter.
o BC CA Held: Charter did NOT apply because the collective agreement was between a private employer and the union of its employees. Thus, the collective agreement was a private contract to which the Charter does not apply.
o HOGG à a collective agreement that forces unwilling employees to join the union could not be effective through the common law of contract. In all jurisdictions, collective agreements are authorized by statute so that their terms and conditions will be binding on all employees in the bargaining unit, including those who do not agree with the terms and conditions. The terms and conditions of a collective agreement thus have a coercive force that goes beyond what could be achieve in a common a law contract. Therefore, the terms and conditions of a collective agreement SHOULD be subject to the Charter.
o Thus, the Charter SHOULD apply to a collective agreement since it is established by statute and maintains coercive elements on the employees.
Confirmed in:
Lavigne v OPSEU (1991)
o PRINCIPLE: collective agreements (union contracts) are subject to the Charter IF the employer is the government of an agent of the government.
o Issue: whether an “agency-shop” (a workplace where all employees are not required to join the union, but are required to pay dues) provision in a collective agreement violated the guarantee of freedom of expression and association.
o SCC Held: Charter applied because the employer was an agent of the provincial government, which made the collective agreement a governmental act.
o BUT the court seemed unanimous that, if the employer had NOT been part of government, then the collective agreement would be a private contract to which the Charter would NOT have applied.
o HOGG à “Without statutory authority, an obligation to pay union dues could be created only by the agreement of the employee. In my opinion, it is clear that dissident (rebellious) employee was being subjected to a statutory power of compulsion as surely as if the statute had directly ordered him to pay the dues” .....”It was not necessary for the Court to rule on the status of collective agreements in the private sector. Because the government was a party to the collective agreement, the Charter applied”
o HOGG à “I hope when the issues has to be decided on statutory authority, the Court will reconsider its approval of Bhindi and its comments on statutory authority. As the cases presently stand, a Legislature that is powerless to abridge freedom of association (or any other Charter right) has the mysterious capacity to grant to employers and unions (or anyone else outside of government) the power to abridge the right. THAT CANNOT BE GOOD LAW”
(d) Amending Procedures
o s.32 of Charter makes it clear that the Charter is binding on the process of constitutional amendment
(e) Government
o The application of the Charter to all action taken under statutory authority follows simply from the references in s.32 to “Parliament” and “Legislatures”
o The reference to “government” in s.32 will make the Charter applicable to governmental action taken under both kinds of common powers.
i.e. Operation Dismantle v The Queen (1985) – Charter applies to a cabinet decision taken under the prerogative to allow the US to test missiles in Canada.
i.e. Douglas/Kwantlen Faculty v Douglas College (1990) – a community college is subject to the Charter
because it was subject to a substantial degree of governmental control.
Compare with:
i.e. Mckinney v U of Guelph (1990) – a University was not subject to the Charter because it was sufficiently independent of government.
i.e. Stoffman (1990) – A hospital was not subject to the Charter because it was sufficiently independent of government.
-Thus, it was irrelevant that the university and hospital were each performing a “public service”, as long as they were performing it independently of government.
o The control test looks to an instrumental or structural link with government to determine whether a public body is covered by the Charter (to help define the Crown and Crown agents).
o NOTE:
è If the body alleged to have breached the Charter was relying on a statutory power, the Charter will apply by virtue of that fact, and regardless of whether or not he body is within the term “government”
(f) Courts
o Does the Charter apply to courts? SCC has held yes and no.
The “no” answer came in:
Dolphin Delivery (1986)
o PRINCIPLE: Charter does NOT apply to the courts.
o Issue: whether Dolphin Delivery, a courier company, could obtain an injunction to restrain a union from picketing its premises. The union represented the employees of another courier company against whom it was on strike. Since Dolphin was not part of that dispute, the picketing on its premises would be “secondary picketing”. BC court held the picketing would constitute the common law tort of inducing a breach of contract, and they granted an injunction to prevent the picketing.
o Union’s argument: the injunction should be set aside, because it abridge the Charter guarantee of freedom of expression.
o SCC Held: Rejected the argument on the ground that the Charter had no application to the order of the court.
o MCLINTRYRE J à held that the word “government” is s.32 meant only the executive branch of government, and did not include the judicial branch.
o Reasoning: A court order was NOT governmental action, and therefore the injunction issued by the BC court was NOT subject to the Charter.
o Hogg’s view of ratio to uphold the decision: a court order when issued as a resolution of (1) between two private parties, and (2) the order is based upon the common law, is NOT governmental action to which the Charter applies. If not, then the effect would be applying the Charter to two private parties.
The “yes” answer came in:
R v Rahey (1987)
o PRINICIPLE: Charter does apply to the courts
o Facts: the trial judge had adjourned the application 19 times and taken 11 months to reach his decision.
o Issue: whether a criminal court had denied to a defendant the s.11(b) right to be tried within a reasonable time
o SCC Held: The delay was a breach of s.11(b). Thus, the action that was held to be a breach of the Charter was the action of a court.
The “yes” answer was confirmed in:
BC Government Employees’ Union (BCGEU) v BC (1988)
o Facts: A union, on lawful strike, formed picket lines outside the courts in BC, where some of the union members worked. The Chief Justice of BC, discovering this on his way to work, on his own motion and without notice to the union, issued an injunction prohibiting the picketing of the courts.
o Union’s argument: applied to have it set aside on the ground that it abridged the s.2(b) right to freedom of expression.
o SCC Held: The injunction did limit s.2(b), but was justified under s.1. The court held that a court order was subject to Charter review.
o The Rahey and BCGEU decisions have, in effect, repudiated MCINTYRE J’s ruling in Dolphin Delivery that the word “government” in s.32 excludes the courts.
o Many of the Charter rights contemplate that the courts are bound by the Charter
i.e. s.11 entail action by courts: holding a trial within a reasonable time (s.11(b)), etc.
o These provisions supply a context in which it is reasonable to interpret the word “government” in s.32 as including the judicial branch.
o Does making a court order, supported as it is by the “full panoply of state power”, supply the requisite element of governmental action???
Dolphin Delivery – a court order, when issued as a resolution of a dispute between PRIVATE PARTIES, and when based on COMMON LAW, is not a governmental action, and so, the Charter does not apply.
Reason = the effect of applying the Charter to the relationship of private parties is what s.32 intends to exclude from Charter coverage
o However, where a court order is:
issued on the court’s own motion for a PUBLIC PURPOSE (BCGEU),
or in a proceeding to which the GOVERNMENT IS A PARTY (Rahey),
or in a purely PRIVATE PROCEEDING that is governed by STATUTE LAW,
THEN the Charter will apply to the court order.
(g) Common law
o Does the Charter apply to the common law?
Dolphin Delivery – No, Charter does NOT apply to the common law, or at least those rules of common law that regulate relationships between PRIVATE PARTIES
o “where private party A sues private party B relying on the common law, and where no act of government is relied upon to support the action, the Charter will NOT apply”.
o Thus, if the applicable law is a rule of the common law, the Charter does NOT apply.
o If, however, the law is a rule of statute law, the Charter DOES apply: the statute supplies the needed element of governmental action (statutory interpretation)
o NOTE:
è Statute law allows Charter to apply because judges created the common law, not Parliament or Legislatures who are bound by the Charter (statutory interpretation)
è Thus, must distinguish between common law and statute.
o HOWEVER, the Charter DOES apply to the common law if government action is involved:
R v Golden – Charter applies when a police officer exercises a common law power to search an accused.
Dagenais v CBC (1994)
o PRINCIPLE: Charter does not apply if (1) the dispute is between two private parties, and (2) it is based on the common law.
o Issue: Charter challenge to an injunction (publication ban) to prohibit the CBC from broadcasting a programme. The applicants for the injunction were the Christian brothers and the respondent was the CBC.
o SCC Held: Since the legal basis for the injunction was the common law, and was a dispute between private parties (same as Dolphin), the Charter did NOT apply.
o (but note: an injunction derives from the common law)
Hill v Church of Scientology (1995)
o PRINCIPLE: Charter does not apply if (1) the dispute is between two private parties, and (2) it is based on the common law.
o Facts: A Crown attorney brought an action for defamation against the Church of Scientology and its lawyer.
o Church’s argument: the attorney was employed as an agent of the Crown and that the defamatory statements related to his official duties, thus the Charter should apply (this way they could argue freedom of expression).
o SCC Held: In the context of a defamation action, the attorney was a private party, because the action was brought, not as part of his governmental duties, but to vindicate his personal reputation. Since it was the common law that governed the cause of action, it followed that the Charter did NOT apply.
o The rule of common law that should be developed into conformity with “Charter values” means that:
Although the Charter does not apply directly to the common law, it DOES apply indirectly.
o Despite some differences in the way s.1 justification is assessed, the indirect application has the same effects as the direct application.
o Charter values are relevant to statutory interpretation only where the statute is ambiguous and reference to a Charter value would help resolve the ambiguity.
(h) Private action
o Example, if the police enlist the aid of a private individual to obtain information from a prisoner, the private informers are regarded as agents of the police, and subject to the Charter.
o The Charter applies only where there has been governmental action of some kind, that is, action by the Parliament or government of Canada or by the Legislatures or government of a province.
o The Charter regulates the relationship between the government and the private person.
o Private action is therefore EXCLUDED from the application of the Charter!
R v Buhay (2003)
o PRINCIPLE: Charter does NOT apply to private actors.
o Facts: two security guards smelled marijuana coming from a locker rented to someone. With the bus managers permission they opened the locker and found drugs. They called the police and again opened the locker and the police arrested the person.
o SCC Held: the opening of the locker by the guards was not a search within s.8 since they were private actors, not subject to government control. However, the police were subject to s.8 and since the acted without a warrant, the search and seizure was unreasonable and a breach of s.8.
o Much “public” activity is not covered by the Charter, because there is no statutory or governmental presence.
o Much “private” activity has been regulated by statute, or been joined by government, and if so, the statutory or governmental presence will make the Charter applicable.
o Therefore, when the Charter does NOT apply to “private” action, the word “private” is really a term of art, denoting a residual category from which it is necessary to subtract those cases where the existence of a statute or the
presence of government DOES make the Charter applicable
o The courts (SCC) uses a remedy of “extension” to extend the reach of a statute that the court finds to be “under-inclusive” (a statute that excludes some group that has a constitutional right to be included)
i.e. “severance” – deleting from the statute the language that excludes the group
i.e. “reading in” – inserting new language into the statute to add the excluded class
o Constitutional power and political unwillingness of government institutions to regulate PRIVATE spheres, makes it undesirable to extend the Charter to matter that are outside the governmental boundaries.
o The effect of governmental action restriction is that: there is a PRIVATE realm in which people are not obliged to subscribe to “state” values
o The boundaries of that realm are marked by absence of statutory or other governmental intervention
o The boundaries will expand or contract as the scope of governmental intervention (which is driven by democratic political forces) contracts or expands.
(i) Extraterritorial application
o Foreign governments are NOT bound by the Charter.
o Canada has entered into extradition treaties with other states under which Canada agrees to surrender to the other state, a person who has been charged with or convicted of an offence in the other state, but who has fled to Canada.
o In Canada, the application by a foreign state to extradite a fugitive is dealt with in a 2-stage process:
(1) A judge hold a hearing to determine whether the foreign state has sufficient evident of the commission by the fugitive of an extraditable offence in a foreign state
(2) Only if the extradition judge finds the evidence sufficient, the Minister of Justice decides whether to surrender the fugitive to the requesting state.
o At the second stage, extradition of a fugitive who is a Canadian citizen is a denial if the tight to remain in Canada that is guaranteed by s.6 of Charter. However, extradition is justified as reasonable limit under s.1. but still, at both stages, there is a deprivation of liberty in Canada via s.7
o What about the extradition of a fugitive who may fact the death penalty in the requesting state?
o Canada’s extradition treaty with the USA expressly provides that extradition, may be refused if the USA does NOT provide assurances that “the death penalty shall NOT be imposed, or, if imposed, shall not be exercised”
Kindler v Canada [1991]
SCC Held: No breach of the principles of fundamental justice. If extradition were denied there would be no legal basis for keeping Kindler in custody, and Canada would become a ‘safe haven’ for the most violent American criminals.
o 10 years later, the SCC had a change of heart:
United States v Burns (2001)
o Facts: US sought extradition of two fugitives who have been charged with murder in Washington and fled to BC where they were arrested.
o SCC Held: now held that it would be a breach of fundamental justice to extradite fugitives without obtaining assurances that the death penalty would NOT be imposed.
o Thus, the court chose NOT TO FOLLOW its earlier decision in Kindler.
o Reason to depart: the Court’s belief that over the last decade, the arguments against the death penalty, and wrongful convictions, had become stronger. The ‘safe haven’ argument was dismissed because there was “little indication” that the USA governments would ever fail to give assurances.
Surech v Canada [2002]
o Issue: whether it would be a breach of s.7 to deport a person from Canada if that person was likely to face torture in the country to which he was returned
o SCC Held: deportation was not materially different from extradition, and following Burns, to hold that a deportation to face torture would “usually” be a breach of the principles of fundamental justice.
o Thus, the court upheld the provision in the Act to deport non-citizens who were found to be “a danger to the security if Canada”, BUT, held that there must be a cogent evidence that the person is indeed dangerous before the Minister could constitutionally deport a person who would face torture in the country to which he was returned
R v Cook [1998] OVERRULED by:
R v Hape (2007)
o Issue: a prosecution in Canada for money laundering. For documents that had been searched for and seized by Canadian police officers in the Turks and Caicos Islands and whether various searches and seizures that yielded the evidence were made in compliance with Turks and Caicos law.
o SCC Held: Charter does NOT apply to Canadian actors acting outside of Canada, i.e. to the investigation and procedures in a crime in another country. The Charter applied only to actions taken by Canadian actors inside Canada.
o LEBEL J à took the dissenting opinion in Cook, that the Charter applied only to actions taken by Canadian actors inside Canada.
Canada v Khadr [2008]
o Issue: whether he was entitled for an order under s.24(1) of Charter compelling the Government of Canada to disclose to him the records of interviews that were conducted with him in 2003 by officials of the CSIS.
o SCC held: Khadr was entitled to disclosure of the records of the interviews that were in the possession of the government of Canada. Entitled to s.24(1) remedy of discloser of the records
o Reasoning: if everything had taken place in Canada, including the criminal process, Khadr would have been entitled by s.7 of the Charter, to the Stinchcombe right of full disclosure of all relevant material in the possession of the Crown
o Therefore, Hape did NOT apply and the Charter acquired extraterritorial effect because according to Stinchombe, it was a breach of the Charter NOT to provide disclosure to Khadr of the records.
Override of Rights (s.33)
SECTION 33
o The override power, if exercised, would remove the statute containing the express declaration from the reach of the Charter provisions referred to in the declaration without the necessity of any showing of reasonableness or demonstrable justification.
HISTORY OF S.33
Ford v Quebec (1988) – which held that a law banning the use of languages other than French in commercial signs was an infringement of the Charter right to freedom of expression.
After this decision, the Legislature re-enacted the prohibition with respect to exterior signs (while allowing bilingual interior signs), and protected the new prohibition with a notwithstanding clause, s.33.
o The declaration referred to “the provisions of s.2 and 7 to 15, which is a reference to all of the Charter rights that s.33 makes vulnerable to the override.
o SCC held: that the omnibus reference to the rights was sufficient. It was not reasonable to require a reference that was particular to the statute containing the declaration, because a legislative body “might not be in a position to judge with any degree of certainty what provisions of the Charter might be successfully invoked against various aspects of the Act in question.
RIGHTS THAT MAY BE OVERRIDDEN
o S.2 = fundamental freedoms
o S.7 to 14 = legal rights
o S.15 = equality rights
o Rights that CANNOT be overridden are:
o S.3 to 5 = democratic rights
o S.6 = mobility rights
o S.16 to 23 = language rights
o S.24 = enforcement provision
o S.28 = sexual equality clause
FIVE-YEAR LIMIT
o The override power is subject to a temporal restriction
o S.33(3) = “sunset clause”
o The purpose of the “sunset clause” is to force reconsideration by the Parliament or Legislature of each exercise of the power at five-year intervals (intervals in which elections will have been held).
SPECIFICITY OF DECLARATION
o S.33 stipulates that the Parliament and Legislatures must “expressly” declare that a statute is to operate notwithstanding a Charter right.
o Therefore:
(1) the override power must be an express declaration contemplated by s.33(1) thus becoming a “manner and form” requirement that is essential to the validity of any statute enacted in violation of a provision contained in s.2 or s.7 to 15 of Charter.
(2) the express declaration contemplated by s.33(1) must be specific as to the statute that is thereby exempted from the provisions of the Charter...must be in the statute itself.
(3) the express declaration contemplated by s.33(1) must be specific as to the Charter right which is to be
overridden
o See Ford
RETROACTIVE EFFECT
o There is considerable appeal to the idea that rights should NOT be able to be taken away retroactively.
o WEINRIB à “the rule of law requires that a person be aware of his or her constitutional rights at the time ofr taking action, and not be vulnerable to retroactive change.
o However, the rule against retroactivity will probably encourage the use of s.33.
o Since Ford, it might be expected that legislative bodies, when limiting rights, will sometimes include cautionary override clauses to insure against the risk of an adverse judicial decision on s.1 justification
JUDICIAL REVIEW
o To what extent is the exercise of the override power subject to judicial review?
o A declaration under s.33 will be held to be invalid by the courts if it fails to satisfy the various requirements of s.33
o The thesis that s.33 is subject to s.1 is difficult to sustain.
o Once a Charter provision has been overridden by an express declaration in a statute, the Charter provision has been overridden by an express declaration in a statute, the Charter provision has no application whatsoever to the statute, and therefore, there is no need for ay showing of reasonableness or justification under s.1.
o This was accepted in Ford
EVALUATION OF S.33
o In practice, s.33 will be used infrequently and only when the legislating government is persuaded that there are powerful reasons of public policy to justify its use.
o HOGG à while s.33 looks odd to non-Canadian observers, the power of override seems to be a uniquely Canadian invention which makes judicial review suspensory only! So long as the last word remains with the competent legislative body, there can be no acute or longstanding conflict between the judicial and legislative branches.
o WEILER à described s.33 as “an intrinsically sound solution to the dilemma of rights and courts”
Limitation of Rights (s.1)
INTRODUCTION
o s.1 contemplates a two stage process:
(1) The court must decide whether the challenged law has the effect of limiting one of the guaranteed rights. (this stage involves the interpretation and application of the provisions of the Charter that define the guaranteed rights)
i.e. If the challenged law does have this effect, the second stage is reached;
o The burden of proving elements of the breach of a Charter right rests on the person asserting the breach.
(2) The court must then decide whether the limit is a reasonable one that can be demonstrably justified in a free and democratic society. (this stage involves the interpretation and application of s.1 of the Charter)
o The burden of persuasion shifts to the government (or other party) seeking to support the challenged law. It is for the government to persuade the court that the challenged law is a “reasonable limit ...”. The standard of proof is “the civil standard; proof by a preponderance of probability”. But the test must be applied rigorously (Oakes).
RATIONALE OF S.1
o What is a right? Or a guaranteed right?
o The law may make some people worse off so long as the costs outweigh the benefits to others (as a general net increases in the general welfare).
o RONALD DWORKIN à critique on s.1: rights are not “taken seriously” if they can be overridden simply by an appeal to the general welfare. It should not be possible to take away a right just because, on balance, the benefits to others will outweigh the cost to the right-holder.
o R v Oakes [1986] as per DICKSON à stipulated STRICT rules as the burden and standard of proof of justification and to qualify a law as a ‘reasonable limit’, it can be justified in a free and democratic society.
à”The underlying values of a free and democratic society both guarantee the rights on the Charter; and justify limitations upon those rights”
RELATIONSHIP BETWEEN S.1 AND RIGHTS
o There is a close relationship between the standard of justification required under s.1 and the scope of guaranteed rights.
o HOGG à using the Oakes stringent/single standard of justification is a better decision for the courts. It reduces floodgates. Whereas using the more relaxed standard simply upholds the legislation causing floodgates.
o Thus, if the rights are broad, and the standard of justification is low, then many more Charter challenges will come before the courts, and will fall to be determined under s.1.
o And since the standard of justification under s.1 is low, it would be difficult to devise meaningful constraints on the process of judicial review
o For Judicial Review – if rights are TOO BROAD, then the standard of justification is TOO LOW, and so, many more Charter challenges will enter into the courts and fall under s.1 (causing floodgates).
o Therefore, the standard of justification under s.1 would be TOO LOW and it would be difficult to devise constraints on judicial review which would make judicial review even more unpredictable and policy-laden
o Thus, the Court insisted upon a “stringent/single standard of justification” before it would accept a limit under s.1
PRESUMPTION OF CONSTITUTIONALITY
o Federalism cases – When a statute is attacked on federal grounds, there is a presumption of constitutionality. This is between two levels of government. A presumption tilts the scale in favour of upholding the law that has been enacted by one of the levels of government.
VS.
o Charter cases – In Charter cases, there is NO presumption of constitutionality (except for reading down). The constitutional contest is between a government and an individual, who asserts that a right has been violated. In this context, it is not appropriate to tilt the scale in favour of the government (burden on the gov’t to prove the presence of elements of s.1). There should be no obstacles placed in the way of an individual who seeks to vindicate a Charter right.
LIMITS
o The court did not actually overrule Quebec School Board (where they denied to look in a s.1 justification because they said the breach involved a “denial” and not just a “limit), but signalled that it will no longer use the distinction to obviate/prevent the requirement of s.1 justification.
o Thus, the result seems to be that even severe restriction on Charter rights will count as limits, and will therefore be susceptible to s.1 justification. The severity of the contravention would not be irrelevant, of course, because it would be harsher to establish that a severe contravention was reasonable and demonstrably justified.
PRESCRIBED BY LAW
(a) Definition of prescribed by law
o S.1 “prescribed by law” = an act that is NOT legally authorized can NEVER be justified under s.1, no matter how reasonable or demonstrably justified it appears to be.
Little Sisters Book and Art Emporium v Canada [2000]
o Held: customs officials had discriminated against homosexual literature in administering the statutory prohibition on the importation of obscene materials. This was a breach of the equality right in s.15 Charter, and it could NOT be justified under s.1.
o The customs legislation did not authorize any distinction between homosexual and heterosexual literature and therefore, the actions of the customs officials were NOT prescribed by law.
o The requirement that any limit on rights be prescribed by law reflects 2 values that are basic to constitutionalism or the rule of law.
1. In order to preclude arbitrary and discriminatory action by government officials, all official action in derogation of rights must be authorized by law.
2. Citizens must have a reasonable opportunity to know what is prohibited so that they can act accordingly
o Both these values are satisfied by a law that fulfils 2 requirements:
a. The law must be adequately accessible to the public
b. The law must be formulated with sufficient precision to enable people to regulate their conduct by it, and to provide guidance to those who apply the law.
o Both these requirements have been held to be inherent in the phrase “prescribed by law” by the ECrtHR
o And the SCC held that the phrase “prescribed by law” in s.1 entails the same 2 requirements of accessibility and precision.
Greater Vancouver Transportation Authority v Canadian Federation of Students [2009]
o Facts: Transit authorities had the statutory power to enact binding rules of general application. Although policies were not officially published as delegated legislation, they were set out clearly in writing and made available to those who wished to advertise on buses.
o Issue: the court distinguished the “legislative” policies in this case from “administrative” policies that were internal within the government as aids in their interpretation of regulatory powers, to see whether the policies were sufficiently accessible and precise to be “law” under s.1.
o SCC Held: Administrative policies, which were often informal and inaccessible outside government, would NOT court as law for purpose of s.1. As for precision, it was held that a limit on a right need not be express, but can result “by necessity” from the terms of a statute or regulation or from its operating requirements.
o Therefore thepolicies or transit authorities restricting advertising on the sides of buses were limits on freedom of expression that were prescribed by law.
(b) Discretion
Re Ontario Film and Video Appreciation Society (1984)
o PRINCIPLE: statute must give some criteria for a board’s discretion.
o Held: a statute authorizing film censorship failed the ‘prescribed by law” requirement because the censor board was given an unfettered discretion to ban or cut films proposed for public exhibition; the statute did no stipulate the criteria.
R v Hufsky (1988)
o PRINCIPLE: Unfettered discretion to stop vehicles as part of a spot check program is a limit ‘prescribed by law’.
o Facts: Provincial statute gave police unfettered discretion to stop vehicles. Police used the power to stop vehicles at random, in a programme of spot checks.
o SCC Held: SCC upheld the statute. The general discretion conferred by the statute should be interpreted to extend to random stops; and the statute was a limit prescribed by law on the right not to be arbitrarily detained.
Following Hufsky:
R v Ladoucer (1990)
o PRINCIPLE: Unfettered discretion to stop vehicles not part of a spot check program is also a limit ‘prescribed by law’.
o Facts: Police officer performed random stop, not part of any organized programme.
o SCC Held: the same statute (in Hufsky) authorized the stop, and it was a limit prescribed by law on the right not to be arbitrarily detained.
Dissent: Hufsky should be confined to stops at organized check-points, s.1 could not extend to a statute that authorized a police officer to stop any vehicle at any time for any reason.
Slaight Communications v Davidson
o PRINCIPLE: An arbitrator acting under a statute with discretion satisfies the “prescribed by law” requirement.
o Facts: adjudicator ordered the employer to provide a letter of reference.
o SCC Held: Both the positive and negative orders, although limits on the employer’s freedom of expression, were justified under s.1. The “prescribed by law” requirement was satisfied because the adjudicator’s order was made under the authority of a statute even though the statute simply gave a general power to order compensation, reinstatement, etc. The statutory discretion was held to be a limit prescribed by law on freedom of expression.
o LAMERà drew a distinction between 2 types of statutory conferrals of discretion:
1. The statute that expressly or by necessary implication authorized a decision that would infringe a Charter right. In that case, the statute itself, NOT the decision, had to be justifiable under s.1.
(This was seen in Ontario Film and Video, Husky and Ladouceur)
2. The statute that conferred a discretion in language that was apparently broad enough to encompass decisions infringing a Charter right. In that case, the broad empowering language should be read down so as NOT to authorize decisions that would infringe the Charter.
(This was seen in Slaight Communications)
(c) Vagueness
o A statute is “void for vagueness” if its prohibitions are not clearly defined.
o A vague law does NOT provide reasonable notice of what is prohibited so that citizens can govern themselves safely.
Irwin Toy v Quebec (1989)
o PRINCIPLE: As long as the statute provides some guidance on discretion, it will be upheld as “prescribed by law”. Absolute precision is not necessary.
o Facts: Provincial statute prohibited “commercial advertising directed at persons under 13”. The statute stipulated three factors that were to be taken into account, but even with these factors, the scope of the prohibited class of advertisements was highly uncertain.
o IT’s argument: Such a vague prohibition could not be a limit on freedom of expression that was prescribed by law.
o SCC Held: It was not practicable to seek “absolute precision” in a statute. A law would fail the “prescribed by law” test only “where there is NO intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances. Because the statutory factors provided an “intelligible standard” for the application of the prohibition.
REASONABLE AND DEMONSTRABLY JUSTIFIED
(a) Introduction
o Charter rights are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
o The requirement of reasonableness may be redundant, because a limit that is demonstrably justified must surely be reasonable.
(b) OAKES TEST
o In Oakes DICKSON articulates a single standard to apply to all laws that limit charter rights.
o Four criteria must satisfied by a law to establish that a limit is reasonable and demonstrably justified in a free and democratic society:
(1) Sufficiently important objective: The law must pursue an objective that is sufficiently important to justify limiting a Charter right.
(2) Rational connection: The law must be rationally connected to the objective.
(3) *Least drastic means: The law must impair the right no more than is necessary to accomplish the objective.
(4) Proportionate effect: The law must not have a disproportionately severe effect on the persons to whom is applies.
(1) SUFFICIENTLY IMPORTANT OBJECTIVE (objective of the Act)
(a) Identification of objective
o At the practical level, the objective of the legislators in enacting the challenged law may be unknown. The objective of the law could be high or low. There is no logical or factual basis for preferring one version of the law’s objective to the other; they are simply expressed at different levels of generality.
o If the objective has been states at a high level of generality, it will be easy to think of other ways in which the objective could be accomplished with less interference with the Charter right.
Andrews v Law Society of BC (1989)
o Issue: The challenged law imposed a requirement of Canadian citizenship for admission to the legal profession of BC.
o SCC Held: Law infringed the guarantee of equality, but the court divided on the question whether the law could be justified under s.1. Majority held that the citizenship requirement could not be justified under s.1 (thus viewed the objective at a low level of generality since they interpreted it more narrowly, or less generally.).
o The objective of the law could be expressed at a:
high level of generality: to restrict entry to the legal profession to persons who are qualified to practise law.
Or
low level of generality: to restrict entry to the legal profession to persons who are Canadian citizens.
o The higher the level of generality at which a legislative objective is expressed, the more obviously desirable the objective will appear to be.
o This will move the s.1 inquiry into the proportionality of the means that the law employs to accomplish the objective (steps 2, 3, 4 of Oakes test)
Irwin Toy v Quebec (1989)
o SCC upheld a Quebec law that prohibited advertising directed at children under 13. The law infringed freedom of expression, but was held to be justified under s.1.
The majority of the court defined the objective at a very low level of generality, as the protection of children from advertising. Having defined the objective test in narrow terms, low level of generality, it was then easy to find that the proportionality tests were satisfied.
(b) Importance of objective
o A law pursues an objective that is sufficiently important to justify an overriding a Charter right. But when does an objective achieve this degree of importance?
o In R v Oakesas per DICKSON:
(1) The objective must be consistent with the values of a free and democratic society in s.1; and
(2) The objective must relate to concerns which are “pressing and substantial”, rather than merely trivial.
(3) The objective must be directed to “the realization of collective goals of fundamental importance”
(c) Quebec’s Distinct Society
o
(d) Inadmissible Objectives
o DICKSON in Oakes made it clear that a legislative objective would NOT court as justification if it was NOT sufficiently important to override a Charter right.
o There is only ONE case which the SCC has rejected the legislative objective:
o R v Big M Drug Mart (1985)– SCC held the purpose, “to compel the observance of the Christian Sabbath” was directly contradictory of the Charter right, and could NOT be a purpose that justified limiting the right.
.
(e) Shifting Objectives
o R v Big M Drug Mart (1985)– SCC held that an objective cannot be the basis for s.1 justification if that objective did not cause the enactment of the law.
o DICKSON à rejected the notion that the purpose of a law might change over time with changing social conditions. “Purpose is a function of the intent of those who drafted and enacted the legislation at the time, and NOT of any shifting variable”
o This rule was used in
R v Butler [1992] – the court upheld under s.1 the anti-obscenity provision of the Criminal Code. The court formulated the objective of the law at the level of generality that could be regarded as remaining constant over time, even though the “emphasis” had changed with changing community values
o This technique offers a path AROUND the rule against shifting objectives
o But in R v Zundel [1992] – the SCC refused to take that path and held that, cince the law had not been enacted for an objective that was sufficiently important today to justify a limit on freedom of expression, the law was struck down.
(f) Cost
o Is it a possible justification of a limit on a Charter right that the limit will save money?
Singh (1985)
o PRINCIPLE: saving money is NOT a justified limit.
R v Lee (1989)
o PRINCIPLE: wasting the time of the jury is a justified reason to impose a limit.
o Facts: Criminal Code provided that an accused who had elected trial by jury, but who had failed to appear for trial without a legitimate excuse, was to be tried by judge alone.
o Issue: was this the denial of the Charter right to “the benefit of trial by jury” under s.11(f)?
o SCC Held: the right had been denied, but the section was saved by s.1 because it was appropriate to deny the right to those who had burdened the system with the cost of futilely empanelling a jury.
o Nova Scotia v Martin [2003] - But the SCC has rejected claims of cost and administrative expediency as grounds of justification for a standard program to deal with “chronic pain”
o Only ONE case has the SCC accepted that the saving of government money is a sufficiently important objective to justify a limit on a Charter right:
Newfoundland v N.A.P.E. (2004)
o PRINCIPLE: the financial crisis of the province supplied a sufficiently important objective to justify the limit on the female workers equality rights.
o It was “not convincing simply to declare that an expenditure to achieve a s.15 objective must necessarily rank ahead of hospital beds or school rooms”.
o Only case where the SCC accepted that the saving of government money is a sufficiently important objective to justify a limit on a Charter right.
(2) RATIONAL CONNECTION
o This is the FIRST ELEMENT of proportionality
(a) Definition
o The Oakes case itself failed the rational connection requirement:
R v Oakes (1986)
o PRINCIPLE: The law in question must be rationally connected to its objective.
o Facts: At issue was the validity of a provision of the federal Narcotic Control Act, which provided that proof that the accused was in possession of an illegal drug raised a presumption that the accused was in possession for the purpose of trafficking.
o Issue: The effect of the provision was to cast on the accused the burden of proving that he was not in possession for the purpose of trafficking.
SCC Held: This “reverse onus” clause was an infringement of s.11(d) of the Charter, which guarantees the presumption of innocence. The court agreed that the objective of the reverse onus clause – to protect society from drug trafficking – was sufficiently important to justify limiting a Charter right. But held that the law failed the rational connection test.
o DICKSON à There must be “a rational connection between the basic fact of possession and the presumed fact of possession for the purpose of trafficking”.
o HOGGàthe requirement of least dramatic means seems to provide a much stronger ground for the decision than does the requirement of rational connection
Benner v Canada (1997)
o PRINCIPLE: The law in question must be rationally connected to its objective.
o SCC Held: it was a breach of equality right to impose more stringent requirements for Canadian citizenship on a person born outside Canada before 1977 to a Canadian mother than on a person born outside Canada to a Canadian father.
o Reasoning: The court assumed that the screening out of dangerous persons was an important objective, but held that there was no rational connection between the objective and discrimination. The children of Canadian mothers could not rationally be regarded as more dangerous than the children of Canadian fathers.
Greater Vancouver Transportation Authority v Canadian Federation of Students [2009]
o Issue: the challenged law prohibited the placing of political messages on the sides of buses. Was this a limit on freedom of expression?
o SCC Held: the challenged law failed the rational-connection test. The objective of a “safe, welcoming transit system” was sufficiently important to justify some limits on freedom of expression. The political character of a message had no bearing on whether the message created an unwelcoming environment for transit users, and therefore there was NO RATIONAL CONNECTION between the objective and the law banning political messages.
(b) Causation
o The SCC has not always insisted on direct proof of the causal connection/relationship unless based on “reason”, “common sense”, or “logic” (RJR-MacDonald)
(3) LEAST DRASTIC MEANS (or the minimum impairment test)
o This is the SECOND ELEMENT of proportionality
(a) Minimum impairment
o In each case, the SCC held that other laws were available which would still accomplish the desired objective but which would impair the Charter right less than the law that was enacted. So, the 3rd step was used:
Ford v Quebec (1988) – Quebec’s prohibition of the use of English in commercial signs has been held to be too drastic a means of protecting the French language, although requiring the use of French is acceptable (Devine v Quebec).
Black v Law Society of Alberta (1989) – Alberta’s rule prohibiting Alberta lawyers from entering into partnership with lawyers not resident in Alberta has been held to be too drastic a means of regulating the standards of the legal profession.
Rocket v ... Dental Surgeons (1990) – Ontario’s prohibition on advertising by dentists has been held to be too drastic a means of maintaining high professional standards.
(b) Margin of Appreciation
o If s.1 is to offer any real prospect of justification, the judges have to pay some degree of deference to legislative choices.
o For instance: If s.1 is to permit some accommodation of federal values, the judges have to allow to provincial Legislatures a “margin of appreciation”, a zone of discretion within which different legislative choices in derogation of a Charter right could be tolerated.
BCGEU v AG of BC (1989) – SCC upheld an injunction prohibiting the union, which was on strike, from picketing the courts of BC, where some of its members worked. Court held that the injunction limited freedom of expression by the least drastic means because the union was free to picket workplaces other than the courts.
Prostitution Reference (1990) – SCC upheld the offence of communicating for the purpose of prostitution. This was a limit on freedom of expression that was justified by the objective of eliminating the nuisance of street solicitation. The law passed the least drastic means test.
Dissent – the law failed the least drastic means test since it prohibited communication regardless whether it actually cause traffic congestion, noise, or any other nuisance.
o In each of these cases above, it does not take a vivid imagination to devise a law that would be less intrusive of the applicable Charter right than the law that was enacted.
o But the court was willing to defer to the legislative choice on the basis that the choice was within a margin of appreciation, a zone of discretion in which reasonable legislators could disagree while still respecting the Charter right
(4) PROPORTIONATE EFFECT
o This is the THIRD STEP of proportionality
o This step has never had any influence on the outcome of any case.
o HOGG à concludes that an affirmative answer to the first step – sufficiently important objective – will always yield an affirmative answer to the fourth step. And if this is so, then the fourth step has no work to do, and can safely be ignored
o But in:
o MCLACHLIN in Hutterian Brethren à made it clear that the forth step had to be satisfied. She determined that the forth step was satisfied because the salutary effects of the universal photo requirement outweighed the deleterious effects on the claimant’s religious rights
APPLICATION OF EQUALITY RIGHTS
o The Oakes test is applicable to all Charter infringements.
o Application to qualified rights: s.12 (right not to be subject to any cruel and unusual treatment or punishment) may be an absolute right, not subject to s.1.
o Which regards to s.15:
o The Oakes test ought to apply to s.15 cases. This has been the t implicit assumption of the court in many equality cases that have been decided since Andrews.
APPLICATION TO QUALIFIED RIGHTS
(a) Scope of s.1
o s.1 DOES have a role to play in justifying infringements of Charter rights that are by their own terms qualified by notions of reasonableness or regularity
(b) Section 7
o S.7 guarantees the right not to be deprived of life, liberty, and security of a person except in accordance with the principles of fundamental justice.
o In other SCC cases (other than B.C Motor Vehicle Ref and R v Morgentaler (No. 2)), the SCC has usually applied s.1 before holding that a breach of s.7 invalidated a law.
(c) Section 8
o S.8 guarantees the right to be secure against unreasonable search and seizure
o See Hunter v Southam
o Therefore, in principle, it is possible to imagine a law that fails the narrow test of reasonableness in s.8, but passes the broader test of reasonableness in s.1.
(d) Section 9
o S.9 guarantees the right not to be arbitrarily detained or imprisoned.
o In Hufsky – SCC held that s.1 was applicable to salvage an infringement of s.9
(e) Section 11
o S.11 demonstrates that several of the rights of accused persons are qualified by requirements of reasonableness.
o Therefore, in principle, it is possible for a law to fail a requirement of reasonableness in s.11 and still pass the more generous requirement of reasonableness in the different context of s.1
o S.11(d) is an exception (see Mackin v New Brunswick)
(f) Section 12
o HOGG à finds it difficult to accept that the right not to be subjected to any cruel and unusual treatment or punishment (s.12) could NEVER be justifiably limited
APPLICATION TO COMMON LAW
o The Oakes test applies to common law limits on rights
o Common law may be “prescribed by law” under s.1
o Two cases at common law rules in derogation of Charter rights have been held to be justified under s.1 (but the tests were not applied with much care)
o It is difficult to apply various tests to a rule of the common law, where there is no specific enactment that can be examined in terms of the 4 Oakes tests.
o But in:
R v Swain [1991]
o The SCC applied the Oakes tests to the common law rule that a Crown prosecutor may adduce evidence of the insanity of the accused against the wish of the accused. This rule was in violation of s.7 because evidence of insanity limited the accused’s right to control their own defence.
o SCC Held: the rule failed the least-dramatic-means branch of the Oakes tests, and could not, therefore, be upheld under s.1.
o While a rule of statute law that violated the Charter would have to be struck down, a rule of common law could be amended by the court itself.
o LAMER à he could see “no conceptual problem with the court simply enumerating such a rule to take place of the old rule”
o THUS, a less dramatic rule, which would satisfy s.1, would allow the Crown to adduce evidence of insanity only after the accused had been found otherwise guilty of the offence charged.
o THEREFORE, the offending rule of common law was immediately transformed into a NEW RULE that was compatible with the Charter of Rights
R v Daviault [1994]
o SCC Held: the common law rule that self-induced intoxication was no defence to a criminal charge offended ss.7 and 11(d) of Charter.
o The court constructed a NEW RULE that extreme intoxication was a defence, and that the defence had to be established by the accused on the balance of probabilities
o The onus of proof on the accused was a breach of the presumption of innocence of 11(d), but the court held that it was justified under s.1
o R v Stone [1999] – held that the common law defence of automatism had to be established by the accused on the balance of probabilities. This was a change in the law, and it was a breach of s.11(d), but held that the shift to the accused of the onus of proof was justified under s.1.
o NOTE:
è Theses cases were criminal cases in which the Charter applied by virtue of the presence of the Crown as a party to the proceedings
è The Charter of Rights does NOT apply to the common law in its application to private parties (where no governmental actor is involved)
è HOWEVER the SCC has held that the Charter applies INDIRECTLY to the common law (b/c the court will examine whether the common law is consistent with the ‘Charter values’, and if not, the Court will modify the common law to make it consistent with the ‘Charter values’).
EMERGENCY MEASURES
o The Charter makes NO explicit provision for the enactment of emergency measures.
o It will be for the courts to decide whether such restrictions are reasonable and demonstrably justified in a free and democratic society
Freedom of Conscience and Religion s.2(a)
DISTRIBUTION OF POWERS
s.92(12) – Legislature power over the solemnization of marriages
s.93(3) – Legislatures power over education extends to the establishment of denominational schools.
R v Edwards Books and Art (1986)
o SCC upheld provincial law that prohibited retail stores from opening on Sundays. The law came within property and civil rights because it pursued the secular purpose of providing a pause day for retail workers. HOWEVER, the law contained an exemption for stores of less than a specified size that observed Saturday as a holiday. This “sabbatarian” exemption admittedly had the religious purpose of accommodating those who observed Saturday as their Sabbath.
o Issue: did the religious purpose render the exemption unconstitutional?
o SCC Held: It did not render it unconstitutional. It was open to a provincial Legislature “to attempt to neutralize or minimize the adverse effects of otherwise valid provincial legislation on human rights such as freedom of religion.
Dickson J: “the Constitution does not contemplate religion as a discrete constitutional ‘matter’ falling exclusively within either a federal or provincial class of subjects”.
SECTION 2(a) OF THE CHARTER
o s.2(a) is subject to s.1, but not subject to s.33
FREEDOM OF CONSCIENCE
o Protects systems of beliefs which are NOT theocentric (centred on deity/religion).
FREEDOM OF RELIGION
R v Big M Drug Mart (1985)
o DICKSON J à offered a definition of freedom of religion: “...the right to declare religious beliefs openly ... and the right to manifest religious belief by worship and practice or by teaching and dissemination”.
o Thus, s.2(a) protects religious practices as well as religious beliefs.
SUNDAY OBSERVANCE
R v Edward Books and Art (1986)
o The legislative history of the Ontario Retail Business Holidays Act showed that its purpose was the secular one of providing a common pause day for retail workers. SCC held, nonetheless that the law infringed s.2(a), because its effect was to impose an economic burden on those retailers who observed a Sabbath on a day other then Sunday.
o That effect created a “competitive pressure” to abandon a non-Sunday Sabbath, which was an abridgement of freedom of religion. However, the court upheld the law under s.1. The secular purpose of providing a common pause day was sufficiently important to justify a limit on freedom of religion.
o Issue: Did the legislature use the least drastic means of accomplishing the objective? YES, since the Act contained a “sabbatarian exemption” for retailers who closed their stores on Saturdays.
o Eventually, the Ontario Legislature amended the Act to exempt any retail store that closed on a day other than Sunday by reason of religion of the owner of the store; such a store was free to open on Sunday.
OTHER RELIGIOUS PRACTICES
R v Big M Drug Mart
o DICKSON à the freedom of religion included the right “to manifest religious belief by worship and practice”.
o However, the proviso was added that “such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own”.
o Thus, freedom of religion would NOT protect minority religious groups in such practices as human sacrifice, or refusals of schooling or medical treatment of children.
o Where there is no compelling governmental interest to the contrary, s2(b) of Charter would require the law to accommodate minority religions by according exemptions for their practices.
Young v Young (1993)
o PRINCIPLE: freedom to teach children father’s religion may only be restricted if it would avoid a risk of substantial harm.
o Facts: judge granted custody to the mother of three young children, and had granted access to the father, but with the restriction that the father not discuss the Jehovah’s Witness religion with the children, or take them to religious services. The mother did not share the same views. The father attacked the restriction as a freedom of religion.
o SCC Held: the restriction, although imposed in the best interest of the children, would offend freedom of religion, unless it could be shown that the restriction was needed to avoid a “risk of substantial harm” to the children; since, in his view, the evidence established no such risk, the restriction was struck down.
o The idea that freedom of religion authorizes religious practices only so far as they do not injure others has been abandoned by the SCC in favour of an unqualified right to do anything that is dictated by a religious belief.
B.(R) v Children’s Aid Society (1995)
o PRINCIPLE: parents have the right to choose the medical treatment of the child in accordance with their religious beliefs subject to the imposition on the child of religious practices which threaten safety, health or life AND freedom of religion is to be given a broad interpretation.
o Facts: The doctors considered that the child’s life would be in danger if she did not receive the blood transfusion. An application was made under Ontario’s child welfare statute to make the child a temporary ward of the Children’s Aid Society. The application was granted and the Society consented to the blood transfusion.
o SCC Held: the decision of parents to prohibit doctors from giving a blood transfusion to their baby was protected by freedom of religion, because it was dictated by their beliefs as Jehovah’s witnesses. However, the statutory procedure was justified under s.1. There were intrinsic limits on freedom of religion, and “a parent’s freedom of religion does not include the imposition on the child of religious practices which threaten the safety, health or life of the child”.
Ross v New Brunswick School District No. 15 (1996)
o Facts: Ross was a schoolteacher who publicly disseminated (not in his teaching, but in the form of books, letters to the newspaper and tv) the opinion that Christian civilization was being destroyed by an international Jewish conspiracy. Ross had been removed from his teaching position by a board constituted under New Brunswick’s human rights statute.
o SCC Held: Ross’s activities were protected by freedom of religion. The board’s order infringed Ross’s freedom of religion (and freedom of expression). However, most of the board’s order could be justified under s.1 as a measure to remedy an anti-semitic environment in the school. The court ordered that the board had overstepped the reasonable limit of s.1 in also ordering the school board to dismiss the teacher from his non-teaching post if at any time in the future he were to resume his anti-semitic activities.
Syndicat Northcrest v Amselem (2004)
o PRINCIPLE: Religious practice has a broad definition. The claimant must prove that he sincerely believed the practice was of religious significance.
o Issue: was the right, claimed by orthodox Jew condominium owner, to build “succahs” (temporary dwellings) on the balconies of their condominium. Condominium by-laws prohibited “construction of any kind whatever” on the balconies. This rule had aesthetic purposes and keeping balconies free of obstruction as fire escape routes. Other owners sought an injunction preventing the succahs.
SCC Held: Succahs were entitled to be erected in defiance of the by-laws.
Iacobucci defined protected religious practice in an extraordinarily broad fashion:
The practice need not be part of an established belief system, or even a belief system shared by some others; it could be unique to the claimant. The practice need not be perceived as obligatory by the claimant. All that was necessary to qualify a practice for Charter protection was that the claimant sincerely believed that the practice was “of religious significance”. The test was wholly subjective. Expert evidence was not necessary, because the claimant only had to show the sincerity of his belief. It did not matter that the claimants had not attempted to build their own succahs in the past, because “individuals change and so can their beliefs”.
Dissent: the claimants had chosen to purchase a condominium in a building with by-laws that prohibited construction on the balconies.
Syndicat Northcrest v Amselem applied in:
Multani v Commission scolaire Marguerite-Bourgeoys (2006)
o Issue: whether a 13 year old Sikh boy was constitutionally entitled to wear a kirpan (dagger with a metal blade) to his public school even though a school board regulation (in a statutorily authorized code) prohibited students from brining weapons and dangerous objects to school.
o SCC Held: the regulation infringed freedom of religion. The court found that the student sincerely believed that his religion required him to wear a kirpan made of metal at all times. Folloing Syndicat all he has to show was” “that his personal and subjective belief in the religious significance of the kirpan is sincere”.
Alberta v Hutterian Brethren of Wilson Colony [2009]
o Issue: whether the requirement of provincial law that a driver’s licence display a photograph of the holder, applies to a Christian denomination who believe that having their photo taken is forbidden by the Bible
o SCC Held: the Hutterian claimants had a sincere religious belief that prohibited their being photographed, and that believe was protected by s.2(b) of Charter. However, the universal photo requirement was justified under s.1 since the requirement was a reasonable limit on freedom of religion and the claimants were NOT entitled to an exception
WAIVER OF RELIGIOUS PRACTICE
Syndicat Northwest v Amselem [2004]
o Facts: the condominium case
o SCC Held: brushed aside the argument of their co-owners that the claimants had waived their religious right.
o IACOBUCCI à provided reasons for denying the primacy of the by-laws.
o BINNIE (dissented) à claimants had a choice of places to live, and they “undertook by contract to the owners of THIS building to abide by the rules of THIS building even if they accepted the rules without reading them”. Therefore, he reasoned that the claimants should be defeated by their “contract with their co-owners, that they would NOT insist on construction of a personal succah on the communally owned balconies of the building”
o It is an extraordinary doctrine that permits a contacting party to invoke a sincere religious belief as the basis for IGNORING a contracting promise that the promisor freely made but no longer wishes to keep
o Compare to:
Bruker v Marcovitz [2007]
o Facts: two spouses Orthodox Jews were able to divorce via law, but not religiously unless a rabbinical court provided them with a “get” (Jewish divorce granted by husband and agreed by wife)
o Issue: despite his promise, the husband refused for 15 years to grant a get, and did so only after the wife brought an action against him for breach of contract. He invoked freedom of religion (via Amselem) as the basis for his absolute right to withhold the get in spite of his signed contract to grant it.
o SCC Held: rejected this argument and upheld an award of damages for breach of contract against the husband
o ABELLA à “the husband had converted his religious right to withhold the get into a contractual obligation to grand the get. He was bound by the contact to fulfill that obligation despite its religious aspect. The husband’s ‘binding promise’ was only the public policies of equality, religious freedom and autonomous choice in marriage and divorce”
o Therefore, a contract that waived a right to a religious practice would NOT be enforced if it were contrary to public policy to do so. There was nothing contrary to public policy in the Amselem contract to keep condominium balconies free of construction: that promise was demanded by the co-owners
RELIGION IN PUBLIC SCHOOLS
Zylberberg v Sudbury Board of Education [1988]
o Issue: a challenge was brought to an Ontario regulation, made under statutory authority, that requires a public school to open or close each school say with “religious exercises consisting of the reading of the Scriptures or other suitable readings and the repeating of the Lord’s Prayer or other suitable prayers”
o CA Held: the regulation was unconstitutional because it “imposed Christian observances upon non-Christian pupils and religious observances on non-believers”
o Ontario did not appeal the decision and the province removed the requirement of “religious exercises” from its public school regulations. However, the province kept a 1944 regulation that required a public school to devote two periods per week to “religious education” (a parent had a right to apply to this principle and exempt their child from religious education)
Canadian Civil Liberties Association v Ontario [1990]
o CA Held: struck this above provision as well. The PURPOSE of the regulation was the indoctrination of Christian belief, as opposed to education about many religions. Therefore, the regulation was unconstitutional
o Therefore programmes of religious exercises or instruction in public schools will normally violate the guarantee of freedom of religion.
o What would NOT violate the guarantee is a course on religion that examined various religions in a neutral way, not promoting any one religion or assuming the superiority of any one religion.
DENOMINATIONAL SCHOOLS
o s.93 – guarantees the system of state aid to minority Protestant and Catholic schools.
Adler v Ontario (1996)
SCC Held: a province’s failure to fund the schools of religious denominations not recognized by s.93 was NOT a breach of freedom of religion under s.2(a) or of equality under s.15.
R v Big M Drug Mart – DICKSON à left open the question whether s.2(a) prohibits state aid to denominational schools other than those entitled under s.93.
RELIGIOUS MARRIAGE
o Under provincial law, marriage may be solemnized in civil or religious ceremonies.
o Religious ceremonies can be denied by a church, synagogue or mosque
o But civil ceremonies will not be denied.
Same-Sex Marriage Reference (2004) – Parliament could enact a bill legalizing same-sex marriage for civil purposes under it power over “marriage” in s.91(26). But religiously, not recognized.
Freedom of Expression s.2(b)
DISTRIBUTION OF POWERS
(a) Classification of laws
o Laws abridging civil liberties are subject to federal distribution of powers
o Political speech may well be a distinct matter that is assigned exclusively to the federal Parliament. Other kinds of speech are distributed between the 2 levels of government
(b) Political Speech
o Since the 1950s the tendency of the cases has been to expand provincial power over speech, even in cases where the power was exercised in derogation of civil libertarian values
(c) Provincial Power
o The provincial power over speech does authorize the regulation of speech on commercial or local grounds (i.e. defamation)
(d) Federal Power
o The federal Parliament has the power to regulate political speech as well as the power to make particular kinds of speech criminal (fraud, obscenity, hate propaganda)
SECTION 2(b) OF CHARTER
o s.2(b) – guarantees to everyone the fundamental freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
o A law will be held unconstitutional only if BOTH questions are answered adversely to the law.
o While this 2-stage process is appropriate for judicial review under all the Charter rights, we shall see that the unqualified language of s.2(b), reinforced by the broad interpretation that has been given to that language, means that, in most of the freedom of expression cases, it is easy to decided that, YES, the impugned law DOES limit s.2(b).
COMPARISON WITH FIRST AMENDMENT
o First amendment uses the word “speech”
o S.2(b) uses the phrase, “thought, belief, opinion and expression”
REASONS FOR PROTECTING EXPRESSION
o What is the rationale for the guarantee of freedom of expression?
o Perhaps the most powerful rationale for the constructional protection of freedom of expression is its role as an instrument of democratic government
o A second, broader rationale for the constitutional protection of freedom of expression is its role as an instrument of truth
o A third, even broader, rationale for the constitutional protection of freedom of expression is its role as an instrument of personal fulfilment.
o Irwin Toy v Quebec [1989]- embraced all three reasons for protecting freedom of expression which entails a very broad definition of the right.
(a) seeking and attaining the truth is an inherently good activity
(b) participation in social and political decision-making is to be fostered and encouraged
(c) the diversity in forms of individual self-fulfilment and human flourishing ought to be cultivated
MEANING OF EXPRESSION
(a) Definition of Expression
o SCC had defined “expression” in a broad sense: “Activity is expressive if it attempts to convey meaning”.
Indeed, the court has acknowledged that parking a car would be an expressive activity, and therefore protected under s.2(b) – a protest against the parking regulations was a sufficiently expressive purpose (Irwin Toy).
Example of courts wide definition of “expression”:
R v Sharpe (2001)
o Issue: constitutional challenge mounted the Criminal Code offence of possession of child pornography.
o SCC Held: child pornography should be constitutionally protected under s.2(b) because of its role as an instrument of personal fulfilment. However, the provision was justified under s.1.
(b) Criminal expression
Prostitution Reference (1990)
o SCC Held that communicating for the purpose of prostitution, which was an offence under the Criminal Code, was protected expression under s.2(b). However, the provision was upheld under s.1.
o In other words, s.2(b) protects falsehood and other harmful activity (i.e. counselling a suicide)
(c) Violence
o Express activity that takes the form of violence is NOT protected by s.2(b): “a murder or a rapist cannot invoke freedom of expression in justification of the form of expression he has chosen”.
o Nor can a person invoke s.2(b) to challenge his deportation from Canada for “conduct associated with violent activity”
o The court has held that threats of violence are protected by s.2(b)...but ONLY by reference to its content
(d) Content neutrality
o Content neutrality is the governing principle of the SCC’s definition of expression: “The content of a statement cannot deprive it of the protection accorded by s.2(b), no matter how offensive it may be”
R v Keegsta (1990)
o SCC held: that the promotion of hatred against the Jews or another racial group, which is a Criminal Code offence, is protected by s.2(b). However, the offence was upheld under s.1
R v Zundel (1992)
o PRINCIPLE: s.2(b) protects the dissemination of deliberate falsehoods.
o Facts: Zundel, who had published a pamphlet denying that the Holocaust occurred, was convicted under the false-news law. The Criminal Code made it an offence for a person to “wilfully publish a statement, tale or news that he knows is false and causes or is likely to cause injury or mischief to a public interest”.
o SCC Held: s.2(b)’s protection extended to deliberate falsehoods, because the truth or falsity of a statement can be determined only by reference to its content. The law was unconstitutional and could NOT be justified under s.1. Zundel was acquitted and left free to continue his dissemination of deliberate falsehoods under the protection of the Construction
R v Lucas (1998) – SCC confirmed that deliberate falsehoods were protected under s.2(b).
o The principle of Content Neutrality means that s2(b) extends to much activity that is not worthy of constitutional protection.
WAYS OF LIMITING EXPRESSION
(a) Prior Restraint
o Expression may be restricted in a variety of different ways.
o The most regarded restriction which is most severe is a “prior restraint” on publication
o Prior restraint = a law that prohibits the publication of a particular material wither absolutely or under a requirement of prior approval by a censor. Expression that is never published CANNOT contribute in any ways to the democratic process, to the marketplace of ideas or to personal fulfilment.
o The general standards of s.1 justification are applicable to prior restraint as well as to other limits on expression, and a number of prior restraints have been upheld under s.1.
(b) Border control
Little Sisters Book and Art Emporium v Canada (2000)
o Facts: the bookstore, which catered to gay and lesbian communities in Vancouver, had experienced great difficulty in importing homosexual erotica because of the frequency of seizures by customs officers.
o Issue: bookstore attacked not only the definition of obscenity in the Customs Tariff Act, but also the customs border review procedures which disproportionately withheld homosexual literature.
o SCC Held: the prohibition on obscenity, having been upheld under s.1 as a Criminal Code offence within the country, could also be used at the border. But, the court acknowledged that the implementation of the prohibition by customs officials had been unconstitutionally discriminatory against homosexual literature.
o Thus, the prohibition of obscenity was upheld under s.1, but not the custom official’s procedures for banning the homosexual literature.
(c) Penal Prohibition
o The most common restriction on speech is a prohibition coupled with a penal sanction, for example, the Criminal Code offences of perjury or counselling suicide.
o To the extent that the prospect of punishment deters the uttering of the prohibited expression, a legal prohibition operates in the same way as a prior restraint. However, some speakers may bit be deterred, and their ideas will enter the public domain.
Canada v Taylor [1990]
o Facts: Mr. T continued his telephonic message of anti-Semitism in defiance of the court order, he was committed to prison for contempt. He appealed on constitutional grounds up SCC
o SCC Held: the ban on telephone messages violated s.2(b). However, held that the ban was justified under s.1, so
Mr. T had to stay in prison
Ross v New Brunswick School District No. 15 [1996]
o Facts: public school teacher relayed anti-Senitic messages outside the classroom. The Board prohibited discriminatory practice and so, ordered teacher be removed from teaching position
o SCC Held: the order of the board of inquiry was a breach of s.2(b), but it was justified under s.1 as a measure to reduce the climate of anti-Semitism that had developed at the school
(d) Civil Prohibition
o Tort of defamation or contract to keep some matters confidential. Breach entitles aggrieved party to damages
(e) Forced expression
o Occasionally, a person is forced by law to make a statement:
R.J.R.-MacDonald v Canada (1995)
o PRINCIPLE: s.2(b) protects the right to say nothing or not to be forced to say certain things.
o Facts: a federal statute required cigarettes and other tobacco products to be sold in packages that displayed prescribed warnings of the health dangers of smoking. The warnings were unattributed, so that they could be interpreted as coming from the manufacturers (instead of the true author, the federal government), and the manufacturers were prohibited from displaying any information of their own on the packages (except for the name of the product).
o SCC Held: the requirement of unattributed warnings was a breach of s.2(b), on the basis that “freedom of expression necessarily entails the right to say nothing or the right not to say certain things”. The health warning requirement would have been upheld under s.1, but the government failed to justify the non-attribution of the warnings or the prohibition of additional information on the packages.
o After this case, the Canadian government secured the enactment of a new Tobacco Act, which continued the requirement of warning on cig packages (although now, the warnings are attributed to Health Canada)
Canada v JTI-Macdonald Corp. (2007) – SCC upheld the new requirement which attributed the warnings on cigarette packages to Health Canada.
Slaight Communications v Davidson (1989) – SCC held it was a breach of s.2(b) to order a person to make a statement (reference letter), but because the statement included “only objective facts that are not in dispute”, the order was justified under s.1.
(f) Language requirement
o A Quebec law requiring that public signs and ads be in French only has been struck down as a violation of s.2(b)
Ford v Quebec (1988) – law requiring that public signs and advertisements be in French only was struck down as a violation of s.2(b). However, the requirement of the exclusive use of French, a prohibition of the use of any other language, was unconstitutional.
Devine v Quebec (1988) – Provisions of Quebec’s Charter, which required the non-exclusive (inclusive) use of French in brochures, order, etc. was a breach of s.2(b), but, upheld under s.1.
(g) Search of Press Premises
o The SCC accepted that search warrant was invalid as a breach of freedom of the press, because of the chilling effect on newsgatherings that would be caused if info gathered was available to police
(h) Time, manner and place
o The least severe form of restriction on expression is the regulation of time, manner or place of expression.
i.e. a law might authorize a public official to stipulate the time and route of a parade. These laws restrict expression, and are therefore in violation of s.2(b); but, because they do not regulate the content of expression, a court would be likely to uphold the laws under s.1.
o The regulation of time, manner and place can be so broad as to account to a significant restriction on expression
U.C.F.W. v Kmart Canada (1999)
o PRINCIPLE: A statute prohibiting secondary picketing involving leafleting is a breach of s.2(b).
o Facts: A provision in the Labour Relations Code of BC prohibited a striking union from handing out leaflets at workplaces other than the struck premises (secondary picketing).
o SCC Held: struck down the provision. The goal of minimizing disruption to businesses that are not involved in the labour dispute would justify a prohibition of conventional picketing, but not a prohibition of leafleting, which, like postering, was a traditional means of communicating information by poorly-funded groups.
Pepsi-Cola Canada Beverages v R.W.D.S.U. (2002)
o PRINCIPLE: a common law complete ban on secondary picketing infringes s.2(b), unless the secondary picketing is not lawful (i.e. tort of intimidation by picketing at manager’s home).
o Facts: In Saskatchewan, where secondary picketing was not governed by statute (unlike in Kmart), a court issued an injunction prohibiting all secondary picketing by employees of Pepsi. The employees had picketed, not only the bottling plant where they worked (primary location), but also the shops that sold Pepsi and other secondary locations. The injunction was very sweeping in that only the primary location was open to picketing.
o SCC Held: the common law did not authorize an injunction that applied to all secondary locations regardless of the nature of the picketing activity. In order to protect freedom of expression, only a more limited injunction could be issued. The injunction was discharged except for the picketing of the homes of Pepsi management since those pickets were guilty of intimidation.
COMMERICAL EXPRESSION
(a) Protection of Commercial Expression
o Commercial expression = advertising. It is an expression that is designed to promote the sale of goods and services
o 2 reasons why commercial expression ought to be protected under a guarantee of freedom of expression:
- It does literally fall within the word “expression” and it does make a contribution to the “marketplace of ideas” that is fostered by the constitutional guarantee
- It is very difficult to distinguish commercial speech from other kinds of speech, in that a variety of political, economic and social ideas are inevitably inherent in commercial search
(b) Language Requirements
o SCC held that commercial expression is protected by the guarantee of freedom of expression in s.2(b).
o The first case to reach the court is:
o Ford v Quebec [1988] - where the court held that the language-of-signs law violated s.2(b) by prohibiting signs in English language, and that the law could not be justified under s.1 because the purpose, the protection of the French language, impaired the rights of English-speakers more than necessary to accomplish the purpose.
(c) Advertising restrictions
Irwin Toy v Quebec (1989)
o SCC held: that advertising was constitutionally protected by s.2(b), following Ford, however upheld a law that prohibited all commercial advertising directed at children under 13. The ban was not an absolute one, in the sense that products such as toys and breakfast cereals could still be advertised, provided the advertising did not use cartoons and other techniques directed at children.
o Thus, the product could always be advertised, it was the method (i.e. using cartoons) which was prohibited.
Rocket v ... Dental Surgeons – SCC held that the prohibition of dentists advertising their services was a violation of s.2(b). The objective of maintaining high standards of professional conduct would justify the regulation of advertising by professionals, but this particular regulation was far broader than was necessary to accomplish that purpose and thus, was not justified under s.1.
(d) Sings
o Commercial signs are protected by s2(b).
o It was the regulation of the language of commercial signs that was struck down in Ford, which was the SCC’s first commercial speech case
R v Guignard (2002) – SCC struck down a by-law which prohibited advertising signs and billboards except in industrial zones of the municipality. The defendant erected a sign on his law complaining about an insurance claim delay. The provision infringed freedom of expression, the municipal efforts to restrict roadside advertising in the interests of environmental aesthetics and safety ran into a Charter barrier.
Vann Niagara v Oakville [2003] – SCC accepted a municipal by-law that banned “billboard signs” throughout the municipality. Once again, the provision infringed freedom of expression, the municipal efforts to restrict roadside advertising in the interests of environmental aesthetics and safety ran into a Charter barrier.
(e) Prostitution
o Prostitution, like tobacco, is lawful in Canada,
Prostitution Reference (1990) – SCC held communicating in a public place for the purpose of engaging in prostitution is protected by s.2(b), but the Criminal Code provision is protected by s.1.
PICKETING
o Picketing is protected by s.2(b) of the Charter.
o Both commercial and political expression in picketing is protected
Vancouver Courthouse case (1988) – SCC held the injunction to prohibit the courthouse from being picketed was a breach of s.2(b), however, was justified under s.1. Assuring unimpeded access to the courts was a sufficiently important objective and the injunction was not overly broad because it left the union free to express themselves in other places.
U.C.F.W. v Kmart Canada (1999) – a prohibition on picketing was a limitation of freedom of expression under s.2(b). However, a complete prohibition on secondary picketing was too broad in prohibiting the peaceful distribution of leaflets. The court struck down the prohibition on secondary picketing.
Pepsi (2002) – Peaceful secondary picketing was to be eliminated from the injunction, however, secondary picketing of the homes of management was the tort of intimidation.
HATE PROPAGANDA
o Hate propaganda is material that promotes hatred against minority groups
o It is prohibited by the Criminal Code. Although this is a limit on expression, it is because the expression is worthless and harmful. Thus, the purpose is to promote the value of equality
R v Keegstra (1990) – No content-based restriction on s.2(b) right. Section 2(b) covered all messages, “however unpopular, distasteful or contrary to the mainstream”. Thus, Keegstra had engaged in anti-Semetic constitutionally protected activity. However, the law was upheld under s.1.
R v Zundel (1992) – he was entitled to be acquitted on the ground that the false-news prohibition (which he denied the Holocaust) was unconstitutional and not protected under s.1.
o Keegstra v Zundel:
o Keegstra – the hate-propaganda was specifically directed at the wilful promotion of hatred against identifiable groups.
o Zundel – false-news law was so broad (denying Holocaust, no hatred toward Jews) that it was difficult to identify an objective that was sufficiently important to justify the limit of freedom of expression.
DEFAMATION
o This tort provides a civil remedy
o Under the content-neutral definition of expression, the defendant’s freedom of expression is abridged by the prohibition against statements that are both FALSE and HARMFUL
o The SCC had the advantage of the U.S.A and Australia causes, which suggested 3 approaches to the modification of common law of defamation in order to provides some constitutional protection for the criticism of public officials
- Most radical approach – an absolute bar on defamation actions by public officials (Australia and U.S.A)
- Middle ground approach – requirement that the public official claimant prove that the defendant knew the criticism was false or was reckless as to whether it was false (U.S.A)
- Less severe approach – a defence of due diligence (or reasonableness) on the part of a defendant to a defamation action by a public official (Australia)
Hill v Church of Scientology [1995]
o Facts: Hill was a crown attorney employed by the A.G in Ontario, who was accused by Church of Scientology of having violated court orders sealing certain documents belonging to the Church that had been seized under search warrant.
o Issue: the CofS held a press conference at which the lawyer described the allegations and announced that contempt proceedings were being brought against Hill. After the proceeding against Hill, Hill sued CofS and its lawyer for defamation.
o SCC Held: upheld Hill’s reward. The Charter did not directly apply to the proceedings (despite Hill’s public position), but that the common law should be reviewed, and modified if necessary, to make it consistent with “Charter values”.
o Therefore, held that the common law of defamation was consistent with Charter values, and did not need to be modified
o The court made one change in the law to defamation to bring it into line with the “Charter value” of freedom of expression: by expanding the defence of qualified privilege that exists in the common law of defamation for reports of judicial proceedings in open courts
o NOTE:
o Canada is out of step with the rest of the common law world in its failure to restrict the right of public figures to sue for defamation
o But in:
Cusson v Quan [2007] - the Ontario Court of Appeal has moved to bring Canada more in line with the rest of the common law world.
o Facts: Newspaper published three critical articles of the claimant’s role (police officer who volunteered in searching for survivors of world trade centre) suggesting that he had actually compromised the rescue effort. Claimant sued newspaper and the journalists
o Issue: whether newspaper’s statements were protected by qualified privilege or similar defence?
o SHARPE CA Held à the no-fault common law of defamation was not consistent with Charter values in its application to the media because of the chilling effect on the freedom of the press. Thus, the best solution was the creation of a new public interest defence of responsible journalism. Where a media defendant can show that it met the standards of responsible journalism in publishing a story that the public was entitled to know about, the defendant will have a defence to a defamation suit even if it turns out that some of the published facts were untrue.
o This is a “half-way house” between the common law’s no-fault rule (which was too restrictive of the freedom of the press) and the traditional qualified privilege of malice (which was insufficiently protective of individual reputations)
o This “half-way house” is essentially what the HL in England has developed as a defence to defamation actions against the media.
o NOTE:
- The Cusson is a decision of the Ontario Court of Appeal, and leave to appeal had been granted by the SCC. But it
WIC Radio v Simpson [2008]
o Facts: talk show radio host criticised the claimant on air, which was false. Since it injured the reputation of the claimant, it was defamatory. However, the host’s statement was one of opinion, not fact
o Held: no demonstration of truth was called for, and the defence of fair comment was available
Neron v Chambre des notaires dy Quebec [2004]
o Facts: Neron sued CBC for defamation, alleging that the CBC’s second program has injured his reputation
o SCC Held: upheld the trial judge’s decision to award heavy damages to Neron. The “fault” of the CBC in its broadcast were breaches of professional journalistic standards. The CBC was therefore liable for the injury to the claimant’s reputation.
o LEBEL à “in an action for defamation under the Quebec Civil Code, fault is measured against professional journalistic standards”
o BUT doesn’t this ruling loses sight of the principle that the law of defamation must be justified as a reasonable limit on freedom of expression of the press???????
o Neron = statement in the media that lower’s someone’s reputation, however true or not, will expose the publisher to liability for defamation if the publisher was guilty of some lapse of professional journalistic standards.
o Hill = demands that the damaging statement be false
o Certainly, when Hill is but together with Neron, Canada is a uniquely favourable enclave for those who wish to sue the media for defamation
PORNOGRAPHY
o Pornography, including obscenity, is protected expression in Canada.
o Since there are no content-based restriction on s.2(b), it follows that pornography is covered by the guarantee.
R v Butler (1992)
o Facts: he accused, who operated a sex shop, was found guilty of various charges of selling obscene material and possessing obscene material for sale. He challenged the constitutionality of these prohibitions in the Criminal Code.
o SCC Held: the prohibition of obscenity offended s.2(b) of the Charter. The purpose of the effect of the prohibition was “to restrict the communication of certain types of materials based on their content”. Since there are no content-based restrictions on s.2(b), it followed that obscene material was covered by the guarantee. However, the prohibition was upheld under s.1.
o SOPINKA à “the undue exploration of sex contemplated material (1) that portrayed explicit sex with violence, or (2) portrayed explicit sex with violence, but in a degrading or dehumanizing manner by placing women (and sometimes men) in positions of subordination, servile submission or humiliation” .
o Therefore, “it would be reasonable to conclude that there is an appreciable risk of harm to society in the portrayal of such material”
R v Sharpe (2001)
o Followed Butler to hold that there was a “reasonable apprehension of harm”
o SCC held: that the criminal offence of child pornography was a limit of freedom of expression under s.2(b). The s.1 justification turned on whether child pornography was harmful to children. The court held that possession contributed to the market and the market caused the production of child pornography which often involved the exploitation of children. Thus, the prohibition was upheld under s.1.
ACCESS TO PUBLIC PROPERTY
o Does s.2(b) confer a right to use public property as a forum of expression?
o Since the Charter does NOT apply to private action, s.2(b) confers no right to use private property as a forum of expression.
o With respect to public property, s.2(b) is potentially applicable.
Committee for the Commonwealth of Canada v Canada (1991)
o PRINCIPLE: s.2(b)’s freedom of expression may be carried out on any government property considering the expression is compatible with the function of the government place (i.e. library).
o Issue: could the manager of Crown-owned airport prohibit the distribution of political leaflets in the Airport?
o SCC Held: the prohibition was unconstitutional. s.2(b) conferred a right to use public property for expression purposes.
o L’HEUREUX DUBE J à s.2(b) conferred a right to use all governmental property for purposes of expression.
o MC LACHLIN J à proposed similar test as L’HEUREUX DUBE J.
o LAMER CJ à would allow proprietary controls over access or use to the extent necessary to carry out the principal function of the governmental place (a functional test)
o Thus, a rule of silence in the parliamentary library would not violate s.2(b), and would not need to be justified under s.1, because silence is essential to the function of the library.
o Only expression would be compatible with the function of the place, would a limitation on expression offend s.2(b) and require justification under s.1.
o In the Commonwealth case itself, because the distribution of political leaflets was compatible with the airport’s function of serving the travelling public, the plaintiffs had a constitutional right to carry out the practice.
Ramsden v Peterborough (1993)
o Facts: Defendant was a musician who advertised performance by placing posters on hydro poles on public property in the municipality. He was charged with breaching a municipal by-law that prohibited the placing of posters “on any public property”.
o SCC Held: postering on at least some kinds of public property would be protected by s.2(b).
o IACOBUCCI à recognized the municipality’s objectives in enacting the by-law, which were to reduce littering, aesthetic blight, traffic hazards, etc. were sufficiently important to justify some limitation of freedom of expression.
o However, a complete ban on postering on all public property was broader than necessary to accomplish the objectives. The by-law failed the least-drastic-means requirement of s.1, and was unconstitutional.
Montreal v 2952-1366 Quebec (2005)
o PRINCIPLE: Test for whether s.2(b) applies to a public place is whether one would expect constitutional protection for free expression.
o Facts: a strip club in Montreal set up a loudspeaker at its street entrance which it used to broadcast the music and commentary that accompanied the show within. The club was charged under a city by-law that prohibited noise produced by sound equipment that could be heard outside a building. The by-law did not stipulate any particular noise level. The SCC interpreted the by-law as applying only to “noise that adversely affects the enjoyment of the environment”.
o Issue: Although the message originated in a private premises, it was the transmission into the public street that was prohibited by the by-law. Did s.2(b) protect expression that was transmitted into a public street?
o SCC Held: the broadcast was protected by s.2(b), however, the by-law was upheld under s.1
o MCLACHLIN and DESCHAMPS à created a single test from the three approachs in the Commonwealth case. The test for the application of s.2(b) on public property was:
“whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s.2(b) is intended to serve, namely (1) democratic discourse,
(2) truth-finding and
(3) self-fulfillment.”
o In this case, the streets are clearly areas of public concourse, where expression of many varieties has long been accepted. Therefore, the club’s broadcast into the street was protected by s.2(b).
ACCESS TO COURTS
(a) Fair Trial Concerns
(b) Restrictions on reporting
o Freedom of the press includes the freedom to publish reports of proceedings in court.
Edmonton Journal v Alberta (1989) – SCC struck down a statute prohibiting, with some limited exceptions, press reports of matrimonial litigation. The statute violated s.2(b) and could not be upheld by s.1 because the ban was wider than was necessary to safeguard privacy.
Canadian Newspapers Co. v Canada (1988)
o Facts: Criminal Code made provision for a court order prohibiting the media from disclosing the identity of the complainant in a case of sexual assault. The making of the order was mandatory if it was requested by the complainant or the prosecutor; in other cases, the making was discretionary.
o SCC Held: the provision limited the freedom of the press as guaranteed by s.2(b), but the limit was justified under s.1. The purpose of fostering complaints by victims of sexual assault justified some limit on s.2(b). The mandatory nature of the ban did not limit the right excessively, because only a mandatory ban would provide assurance to the complainant that her identity would not be disclosed.
Dagenais v CBC (1994)
o Facts: A court issued an injunction prohibiting the CBC from broadcasting a tv programme of four Catholic priests charged with abuse of children in order to prevent a risk or interference with the fairness of the trial.
o SCC Held: struck down the injunction. The common law (injunction) rule gave too much weight to the right to a fair trial and not enough weight to freedom of expression. The injunction was not justified under s.1 because it was found that “reasonably available alternative measures” to prevent risk to the fairness of the trial existed.
o Dissent: the only effect of the injunction was to delay the presentation of the programme and not being a news programme, no immediacy was necessary.
R v Mentuck [2001]
Issue: Unlike Dagenais the accused opposed the order, invoking his Charter right to a “public” hearing under s.11(d) of Charter, as well as s.2(b) of Charter. And trial judge granted the order to the identities of the officers
o SCC Held: struck down the trial judge’s ruling and held that the Crown had to establish “a serious risk to the proper administration of justice and that the reasonable alternative measures will not prevent the risk”. The court therefore held that this test was satisfied as to the identities of the undercover police officers, because disclosure of their identities would create a serious risk to police operations in which those same officers were engaged.
o Thus, the publication ban was upheld as a justified limit on freedom of the press ONLY with respect to the identities of the police officers.
o Followed in:
Toronto Star Newspapers v Ontario [2005]
(c) Restriction on Access
o Freedom of the press also included the right of the press and the public to be present in court.
Re Southam and the Queen (No.1) (1983) – Ontario CA struck down the provision providing for “the trials of children shall take place without publicity” because it was an absolute ban and failed the least restrictive means of attaining its objective, the interests of the children.
o There is a provision of the Criminal Code that provides that proceedings against an accused are to be held “in open court”, but the provision goes on to confer on the trial judges the power “to exclude all or any members of the public from the court room for all or part of the proceedings”.
o This power is exercisable if the judge forms the opinion that access should be restricted in the interest of “the proper administration of justice”:
CBC v New Brunswick (1996)
o PRINCIPLE: if a power is discretionary and not absolute, it will satisfy least drastic means test.
o Facts: a judge excluded the media from a portion of a trial.
o SCC Held: any power excluding the media from the court room was a breach of s.2(b), however the provision was upheld under s.1 because the power was discretionary, and thus, no broader than necessary.
o LAFOREST à the kind of evidence that establishes sexual assault charges, even when the victims are very young, should not normally be regarded as to sufficient reason to deny access to the court room, and any hardship that prejudicial publicity would impose on the accused should be given little wait at the sentencing state, when the accused had been found guilty.
o The Criminal Code provides for a “pre-inquiry” by a justice of the peace into whether to commence criminal proceedings against a person against whom and info has been laid.
o The person accused is not entitled to be present at a pre-inquiry, and any hearing is also closed to the public:
Southam v Coulter [1990]
o Facts: A private citizen had sworn an information against several cabinet ministers and senior police officers alleging bribery and corruption. The press were anxious to attend the pre-inquiry into the charges.
o CA Held: the protection of a falsely accused person and to a properly accused person that the subsequent trial would be prejudiced by pre-trial publicity, were values that justified the closure of the pre-inquiry. The court upheld the close under s.1.
Re Vancouver Sun [2004]
o Facts: SCC reviews a “judicial investigative hearing” that had been held in camera (closed to the public) by a superior court judge. This kind of hearing was an innovation authorized by the Anti-Terrorism Act enacted by 2001. The judge closed the hearing to the public and the press.
o Issue: The Vancouver Sun applied to be given access to the hearing, and when application was refused, they appealed to the SCC
o SCC Held: the “open court principle” was guaranteed by s.2(b) of Charter.
o It could be limited under s.1 only if the standards of justification established in Dagenais and Mentuck were satisfied.
o Although those cases concerned publication bans, the same principle applied to orders limiting access to courts proceedings.
o Those principles were:
(a) That the order is “necessary in order to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk”
(b) That “the salutary effects of [the order] outweigh the deleterious effects on the rights and interests of the parties and the public”
ACCESS TO LEGISLATIVE ASSEMBLY
New Brunswick Broadcasting Co. v Nova Scotia (1993) – Parliamentary privilege included the power of a legislative assembly to exclude “strangers” from its chambers.
CONTEMPT OF COURT
o A contempt of court is an act that offends against the administration of justice.
o A failure to obey a court is the most common form of contempt
o Even if the effect of the contempt proceedings were to enforce a restraint on freedom of expression (such as an injunction against picking), the Charter cannot be called in aid to resist the contempt proceedings.
o A “criminal contempt” is one where the offence to the administration of justice has a public significance that goes beyond the immediate parties.
o Although criminal contempt is a matter of common law, and the Charter does not generally apply to the common law, the public character of criminal contempt makes the Charter applicable
R v Kopyto (1987) – making comments about the judge and RCMP after the trial was a constitutionally protected expression and a law restricting such criticism could not be justified under s.1 (Ontario CA).
PUBLIC SERVICE
o Public servants in all jurisdictions in Canada are subject to restrictions on their partisan political activities. This is because the entire public service is a professional career service that is suppose to serve governments of all political stripes with equal diligence, and to be impervious to partisan political considerations in the administration of government programmes.
o Political neutrality of service is necessary for its effective functioning, both in its relationships with its political masters and in its relationships with the public.
o The general rule of neutrality is widely if not universally accepted, but it does not provide a sure answer to the question of how much political activity by an individual public servant could be tolerated without serious risk to the integrity of a service.
o OPSEU v Ontario [1986]– The SCC held that the province had the power to regulate its own public service, and in pursuit of political neutrality the regulation could extend to restrictions on federal as well as provincial political activity.
MANDATORY LETTERS OF REFERENCE
ELECTION EXPENDITURES
o Restrictions on election expenditures are INDIRECT restrictions on political speech, because expenditures are required to purchase time or space in the media for campaign messages
o These restrictions are therefore bound to diminish the capacity of candidates to communicate their ideas, and thereby diminish the quantity of political speech
VOTING
o The right to vote is guaranteed by s.3 of Charter
ACCESS TO GOVERNMENT
o In Haig – it was questioned whether s.2(b) imposed positive duties on governments, in this case, a duty to fund and consult with particular groups? It was held: “the principle that generally the government is under NO obligation to fund or provide a specific platform of expression to an individual or group”
Life, Liberty and Security of the Person s.7
DISTRIBUTION OF POWERS OVER LEGAL RIGHTS
s.1(a), Canadian Bill of Rights – the right of the individual to life, liberty and security of the person and enjoyment of property, and the right not to be deprived thereof except by due process.
s.2(e), Canadian Bill of Rights – right to a fair hearing.
SECTION 7 OF CHARTER
APPLICATION OF S.1
o NO! A volition of fundamental justice could NEVER be justified under s.1
o BUT:
Some court has routinely moved on the issue of s.1 justification BEFORE finding a breach of s.7.
Andsome judges have held that a particular breach of s.7 was justified under s.1
BENEFIT OF S.7
(a) Corporation
o Section 7 is applicable to “everyone”. However, the SCC has held that in the context of s.7 “everyone” does NOT include a corporation (Irwin Toy).
o s.7 does not apply to corporations, because “liberty” does not include corporate activity.
(b) Immigrants
o “Everyone” is s.7 includes immigrants to Canada (Singh).
o The argument that such a procedure would make it impossible to deal expeditiously with the many thousands of refugee claimants who arrive in Canada each year was rejected as inadmissible “utilitarian” or “administrative” concern, which could not be permitted to vitiate individual rights.
(c) Foetus
o “Everyone” in s.7 does NOT include a foetus, and so a foetus is not entitled to a right to life.
o In fact, the SCC used s.7 to strike down restrictions on abortion, the reasoning being that the restriction deprived the mother of her right to liberty or security of the person (Morgentaler (No.2)).
BURDEN OF S.7
o S.7, like other charter rights, applies to “governmental action”
LIFE
o S.7 protects life, liberty and security of the person.
o Abortion is sometimes characterized as implicating the “right to life: meaning,
o SCC has used s,7 to strike down restrictions on abortion
LIBERTY
(a) Physical Liberty
o “Liberty” certainly includes freedom from physical restraint. Any law that imposes the penalty of imprisonment, whether the sentence is mandatory or discretionary is by virtue of that penalty a deprivation of liberty, and must conform to the principles of fundamental justice.
o Other deprivations of liberty attracting the rules of fundamental justice:
Statutory duties to submit to fingerprinting, to produce documents, to give oral testimony, and not to loiter in or near school grounds, playgrounds, public parks and bathing areas.
May v Ferndale Institution (2005) – s.7 applied to a review to transfer a prisoner in the federal penitentiary from a minimum-security to a medium-security.
(b) Economic Liberty
o The product of s.7, in which liberty must be interpreted as NOT INCLUDING:
- property
-freedom of contract and
-economic liberty
(c) Political Liberty
o “Liberty” does NOT INCLUDE:
-freedom of conscience and religion,
-freedom of expression,
-freedom of assembly,
-freedom of association,
-the right to votes and
-to be a candidate for election, or
-the right to travel
SECUTITY OF THE PERSON
Canadian Foundation for Children, Youth and the Law v Canada (2004)
o Issue: a challenge was brought to the provision of the Criminal Code that provides a defence to a charge of assault for teachers and parents who use “reasonable” force “by way of correction” against the children in their care. The provision exposed children to force that would amount to criminal assault if committed against an adult.
o SCC Held: the provision adversely affected the security of the person of the children. However, the provision was upheld on the ground that there was no breach of the principles of fundamental justice.
R v Morgentaler (No.2) (1988)
o Issue: the Criminal Code’s restriction on abortion, which required that the abortion be approved by the therapeutic abortion committee of an approved hospital.
o SCC Held: the restriction was unconstitutional, a deprivation of security of the person. Evidence showed that the requirement of approval by a therapeutic abortion committee restricted access to the procedure of an abortion (because some hospitals would not set up the required committees) and caused delays in treatment, which increased the risk to the health of the woman. Thus, the risk to health that was caused by the law was a deprivation of security of the person.
Chaoulli v Quebec (2005)
o SCC Held: excessive waiting times in the public health care system of Quebec caused unnecessary pain and stress to those awaiting surgery and other procedures. This was a breach of the right to security of the person (as well as to life, since the risk of death was sometimes increased by the prolonged delays).
Rodriguez v British Columbia (1993)
o Facts: plaintiff who was terminally ill challenged the constitutionality of the Criminal Code offence of assisting a person to commit suicide.
o Rodriguez’s argument: the law deprived a disabled person of the ability to commit suicide (which was not an offence); she wanted to commit suicide, but could not do so without medical assistance because she was (or soon would be) too disabled by her illness.
o SCC Held: the removal of an aspect of the control over her body was a deprivation of security of the person under s.7, however, the law did not offend the principles of fundamental justice.
New Brunswick v G(J) (1999)
o PRINCIPLE: psychological integrity is capable of affected security of the person.
o SCC Held: an application by the state to remove children from a parent and place them under the wardship of the state affected the security of the person of the parent. Security of the person was affected, because the government action would constitute “a serious interference with the psychological integrity of the parent.
o The result was that s.7 applied, and the removal proceedings had to be conducted in accordance with the principles of fundamental justice, which in this case led the court to order that the parent be represented by state-funded counsel.
Blencoe v BC (2000)
o PRINCIPLE: state induced psychological stress (due to a delay) would be a breach of security of the person (but not in this case).
PROPERTY
o s.7 affords no guarantee of compensation or even a fair procedure for the taking of property by government.
FUNDAMENTAL JUSTICE
(a) Procedure and Substance
o A deprivation of life, liberty or security of the person is a breach of s.7 of the Charter only if the deprivation is not in accordance with “the principles of fundamental justice”. Thus, this means that s.7 requires a balancing of interest’s calculation before it reaches s.1 justification.
o Section 7 is structured differently than the other section.
o There is a qualification of the rights build right into the provision (“except in accordance with the principles of fund justice (POFJ)”); this is similar to structure of other ss. + s.1.
o The s.7 standard appears to be stricter than s.1.
o NOTE:
- That s.1 is still applied after a s.7 violation is established.
B.C. Motor Vehicle Reference (1985)
o PRINCIPLE: Fundamental justice covered substantive and procedural justice AND poor definition of ‘fundamental justice’.
o Facts: The BC government sent a reference to determine the validity of a provision in the province’s Motor Vehicle Act which made it an offence to drive a car while prohibited from driving or while one’s driving licences was suspended. The Act imposed a mandatory term of imprisonment on anyone found guilty of the offence.
o Issue: a provision declared that “absolute liability” in which “guilt is established by proof of driving, whether or not the defendant knew of the prohibition or suspension”.
o SCC Held: it was a breach of fundamental justice to impose a term of imprisonment for an offence that lacked the element of mens rea. Violation not saved by s.1. Justification under s.1 only allows ab liab combo with jail time in “exceptional cases”, ie. outbreak of war, natural disasters, etc. These conditions are only temporary. Thus s.7 violations will only be saved in very rare cases.
o Thus, s.7 prohibits substantive as well as procedural injustice.
o The only definition of fundamental justice that was provided by the court was Lamer J.’s assertion that “the principles of fundamental justice are to be found in the basic tenets of the legal system”.
Rodriguez v BC (1993) – assisted suicide case.
o SOPINKA à the principles of fundamental justice must be ‘fundamental’ in the sense that they would have general acceptance among reasonable people”, and he found no such consensus on the issue of euthanasia.
Dissent: the Criminal Code provision was arbitrary or unfair, because it precluded a disabled person (who would need assistance) from committing suicide while permitting an able-bodied person to do so. They would have struck down the prohibition on assisting suicide, thereby legalizing euthanasia despite the absence of any legislation to regulate the practice.
Wilson v British Columbia (Medical Services Commission) (1988) (BC CA)
o “It may be argued that if movement within the province is a protected freedom that such right must be found in s.6. We do not agree. The Charter is not a statute containing a number of watertight compartments. It is not a document which is to be given a narrow and legalistic interpretation”.
o “We are of the opinion, therefore, that the geographic restrictions imposed by government on the right to practice medicine in BC constitute a violation of the right to liberty protected by s.7 unless that right has been removed in accordance with the principles of fundamental justice, or unless the deprivation can be demonstrably justified under s.1 of the Charter”.
ABSOLUTE AND STRICKT LIABILITY
(a) Categories of Offences
R v City of Sault Ste. Marie (1978) – DICKSON for the SCC divided offences into 3 categories:
(1) Absolute liability – the offence consists simply of doing the prohibited act.
o cannot have absolute liability if imprisonment is a possible consequence.
(2) Strict liability – the offence again consists simply of doing the prohibited act; however, it is a defence if the defendant proves to the civil standard of the balance of probabilities that he or she exercised reasonable care.
o if offence is “regulatory” and maintains imprisonment as a consequence, law will be valid with a due diligence offence. If offence is a “true crime”, than mens rea is required.
(3) Mens rea – the offence consists not only of doing the prohibited act, but of doing so with the guilty intent.
(b) Absolute liability offences
B.C. Motor Vehicle Reference (1985)
o PRINCIPLE: if an absolute liability offence carries an imprisonment penalty, it must abide by the principles of fundamental justice (i.e. be given a trial) or else it violates s.7. Thus, cannot have absolute liability if imprisonment is a possible consequence.
o Issue: A section of the B.C. Motor Vehicle Act made it an offence to operate a motor vehicle while one was prohibited or suspended from driving. A subsection explicitly stated that the offence was to be interpreted as “an absolute liability offence, for which guilt is established by proof of driving, whether or not the defendant knew of the prohibition or suspension.
o SCC Held: The offence was a violation of s.7. Absolute liability was a denial of “the principles of fundamental justice”. Since the offence carried a short term of imprisonment, a conviction would mean a deprivation of “liberty”.
o Sequel to B.C. Motor Vehicle Reference:
R v Pontes (1995)
o PRINCIPLE: if no penalty of imprisonment exists, then an absolute liability offence need not comply with the principles of fundamental justice.
o The result was that there was no penalty of imprisonment for the offence of driving while prohibited, therefore, there was no breach of liberty under s.7 and no need for the law to comply with the principles of fundamental justice.
o Thus, as long as no sentence of imprisonment is provided for, it is still possible to create offences of absolute liability.
Rv Hess (1990)
o PRINCIPLE: cannot have absolute liability if imprisonment is a possible consequence (breach of s.7).
o Facts: A provision in the Criminal Code made it an offence for a male person to have intercourse with a female person under the age of 14 whether or not he believes that she is fourteen years of age or more. The offence carried a penalty of imprisonment.
o SCC Held: an absolute liability offence that carried the penalty of imprisonment was a breach of fundamental justice in violation of s.7.
Levis v Tetreault (2006) – “Absolute liability offences still exist, but they have become an exception requiring clear proof of legislative intent”.
(c) Strict liability offences
R v Wholesale Travel Group (1991)
o PRINCIPLE: element of fault must be subjective mens rea if the offence is a true crime, but need only be negligence (departure from an objective standard of due diligence) if the offence is a regulatory offence (i.e. mislead advertising as in this case).
o Facts: the corporation was charged with the offence of false or misleading advertising under the Competition Act. The Act made clear that there was no requirement of mens rea: the only defence was one of due diligence (reasonable care), and the burdern of proving due diligene rested with the accused (if criminal burden is on the prosecution). The penalty for the offence was a fine or imprisonment.
o Issue: the accused argued that it was a violation of fundamental justice to place an individual in jeopardy of imprisonment for any lesser fault than mens rea.
o SCC Held: The court classified the offence as a “regulatory offence” and said it was sufficient that the offence was premised on negligence (lack of due diligence) rather than mens rea.
o In the case of a “regulatory offence” or a “public welfare offence”, including those that carry the penalty of imprisonment, fundamental justice does not require that mens rea be an element of the offence. Fundamental justice is satisfied if there is a defence of reasonable care (due diligence), and the burden of proving a reasonable care (to the civil standard) may be cast on the defendant. In the case of “true crimes”, however, fundamental justice requires that mens rea be an element of the offence, and the burden of proving mens rea (to the criminal standard) would have to be the Crown.
o HOWEVER, the court seems to be abandoning its silly distinction between true crimes and regulatory crimes (Hogg).
MURDER
R v Vaillancourt (1987)
o PRINCIPLE: mens rea is required in relation to murder, if not, then violation of s.7.
o Facts: the accused was charged with murder as the result of a poolroom robbery in which the accused’s accomplice shot and killed a customer of the poolroom. He was charged under the felony-murder branch;
o SCC Held: the felony-murder rule was a violation of fundamental justice under s.7. Before an accused can be found guilty of murder, s.7 required that there be mens rea with respect to the death.
(4) It was the extreme stigma and severe punishment associated with murder that entailed the requirement that the accused have some level of mens rea with respect to the death.
UNFORESEEN CONSEQUENCES
o Where an accused is charged with the offences of murder or attempted murder, then it is a requirement of fundamental justice that the accused must have INTENDED or FORESEEN the death of the victim
o However, the court indicates that this requirement of subjective foresight of the consequences of an unlawful act applies only to “very few” offences identified by reference to the “social stigma”
R v De Sousa [1990]
o Facts: while in a fight, D threw glass bottle that shattered against wall causing glass fragments to injure an innocent bystander. D never intended this nor foresaw the injury
o S.7 is applicable because jury used the Criminal Code which would carry a penalty of imprisonment of 10years
o SCC Held: D was convicted of unlawfully causing bodily harm despite his lack of intention or foresight with respect to the bodily harm.
“the only mental element that was constitutionally required for the offence of unlawfully causing bodily harm was embedded in the word “unlawfully”. That required an unlawful act. Thus, NO CONSTITUTIONAL REQUIREMENT THAT INTENTION, either objective or subjective, EXTENDED TO THE CONSEQENCES OF UNLAWFUL ACTS IN GENERAL”
o In other words, under s.7 of the Charter, it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused.
INVOLUNTARY ACTS
(a) Automatism
o A person should not be convicted of a criminal offence for an act that is not voluntary
R v Parks [1992] – sleep-walker not liable for death or injury
o A person who is awake and sane may suffer a “psychological blow” that induces a state of automatism, causing him to commit acts of violence that are involuntary
R v Stone [1999] – stabbing and killing wife as a result of her constant taunting did not count as going into a state of automatism
o For a defence of automatism to succeed it is only necessary for a defence to raise a reasonable doubt that the accused acted while in a state of automatism
o With regards to s.7, the law respecting automatism now has constitutional status, and any attempt by Parliament to abolish the defence or restrict its availability would be unconstitutional, unless the limited law could be justified under s.1
(b) Duress
o Criminal Code s.17 makes duress an excuse for the commission of an offence: an offence committed “under compulsion” is excused from criminal liability.
o However, s.17 stipulates that compulsion must take the form of threats of immediate death or bodily harm from a person who is present when the offence is committed”.
o See R v Ruzic [2000] where SCC said that s.7 of the Charter was applicable because the offence carried the penalty of imprisonment...
(c) Intoxication
o self-induced intoxication is NOT a defence to a criminal charge
o MacAskill [1931] (the defence of intoxication requires evidence that the accused was so intoxicated that he was incapable of forming the required specific intent)
R v Daviault [1994]
o PRINCIPLE: S.7 requires that EXTREME INTOXICATION be a defence to a criminal charge
o SCC Held: s.7 and a.11(d) were offended by the rule that self-induced intoxication was no defence to a criminal charge.
o CORYà The Charter required that self-induced intoxication, if it was so extreme as to be akin to automatism, must free the accused from criminal liability
o BUT IN:
R V Robinson [1996]
o SCC turned its attention to offences of SPECIFIC INTENT. This is a murder case, which is an offence of specific intent because the intention to kill (or foresight of death) is a specific intent that must be established for conviction
o Facts: Robinson had been heavily drinking before first beating his victim with a stone, and then going and getting a knife and stabbing the victim several times in the stomach
o PRINCIPLE: Using the principle from MacAskill would offend s.7’s requirement of mens rea and s.11(d)’s presumption of innocence.
o SCC HELD: overruled MacAskill and held that, IF DRUNKENNESS RAISED A REAONABLE DOUBT AS TO WHETHER THE ACCUSEED POSSESSED THE REQUISITE SPECIFIC INTENT, THE ACCUSED WAS ENTITLED TO BE ACQUITTED (even if there is no doubt that the accused possessed the capacity to form the requisite intent)
Extreme drunkenness + Reasonable doubt of whether or not there is intent = right to be acquitted
OVERBROAD LAWS
R v Heywood [1994]
o PRINCIPLE: The DOCTRINE OF OVERBREADTH is a breach of principles of fundamental justice, and therefore a basis for finding of unconstitutionality in the law that affects life, liberty or security of the person
o Requires that the terms of a law to be no broader than is necessary to accomplish the purpose of the law.
o But the purpose of the law is a judicial construct, which can be defined widely or narrowly as the reviewing court wishes.
Ontario v Canadian Pacific [1995]
o SCC Held: a NEW doctrine of overbreadth had to be considered, which involved assessing the impact of the law on the most innocent possible offender
o In R v Demers [2004] the SCC said that the OVERBREADTH challenges worked appropriately for an accused person who was not permanently unfit to stand trial
DISPROPORTIONATE LAWS
R v Malmo-Levine [2003]
o SCC established a NEW doctrine of “DISPROPORTIONALITY” which is a breach of principles of fundamental justice, and therefore a basis for a finding of unconstitutionality in a law that affects life, liberty, or security of the person. Therefore, the court must determine
(1) whether the law pursues a “legitimate state interest”; and if so,
(2) whether the law is grossly disproportionate to the state interest
o This doctrine, like its sister doctrine of “overbreadth”, is really an authority for the court to undertake a review of the wisdom of legitimate policy
ARBITRARY LAWS
Chaoulli v Quebec (2005)
o Facts: a constitutional challenge was brought to Quebec’s prohibition on the purchase of private health care insurance. The purpose of and effect of the prohibition was to make the universal public health care plan exclusive. The evidence established that there were excessive delays in the system.
o SCC Held: SCC struck down the Quebec prohibition and unanimously held that the failure to provide timely care in the public system led to breaches of the right to life (since delays sometimes increased the risk of death) and the right to security of the person (since delays prolonged pain and stress).
o Issue: In these circumstances, was a prohibition on the purchase of private health care insurance a breach of the principles of fundamental justice under s.7?
(5) The judges were split even on the issue because Deschamps declined to decide the issue since she held the law was in breach of the Quebec Charter and that it was not necessary to consider the Canadian Charter.
(6) Thus, it will take another case to determine the validity of the legal restrictions on access to private health care that exists in the other provinces and territories.
VAGGUE LAWS
(a) Void for Vagueness
o Vagueness, in a law that deprives a person of life, liberty or security of the person, is a breach of s.7 because it is a principle of fundamental justice that a law should not be too vague.
R v Morales (1992)
o PRINCIPLES: a law will not be void for vagueness if legal debate can occur as to the application of the provision.
o Issue: Criminal Code provision that authorized a judge to deny bail to an accused person on the ground “that his detention is necessary in the public interest”.
o Argument: this provision infringes s.11(e), right not to be denied reasonable bail without just cause.
o SCC Held: The law was void for vagueness. The “public interest” criterion would authorize a “standardless sweep”, because under that criterion a court can order imprisonment whenever it sees fit. The bail provision provided “no guidance for legal debate”, and was therefore void for vagueness.
Ontario v Canadian Pacific (1995)
o PRINCIPLE: a law will not be void for vagueness if legal debate can occur as to the application of the provision.
o Issue: A challenge was brought to a provision in Ontario’s Environmental Protection Act, which made it an offence to discharge a “contaminant” into the “natural environment” that could impair the quality of the environment ...
o CP’s argument: the controlling concepts of “contaminant” and “natural environment” were so vague that the offence was void for vagueness under s.7.
o SCC Held: Although the legislation was very broad and general, its scope was “reasonably delineated” so that “legal debate can occur as to the application of the provision in a specific fact situation”. That was all that s.7 required and the challenge failed.
(b) Standard of Precision
o The constitutional standard of precision that a law must meet in order to avoid the vice of vagueness is established by GONTHIER in the Nova Scotia Pharmaceutical case:
a) whether the law is “intelligible”
b) whether the law sufficiently delineates “an area of risk”, and
c) whether the law provides “an adequate basis for legal debate”
o It is the “LEGAL DEBATE” Test that has been preferred and applied by the SCC in subsequent cases
o Thus, the law is unconstitutionally vague ONLY IF it cannot, even with judicial interpretation, provide meaning standards of conduct
d) Application to Other Charter Rights
o Vagueness, in a law that deprives a person of life, liberty or security, is a breach of s.7 because it is a principle of fundamental justice that a law should NOT bee too vague.
o R v Morales [1992] – makes it clear that the doctrine of vagueness is NOT confined to s.7, but applies to ANY Charter right that carries an implicit requirement that laws not be vague (i.e. s.11(e) “just cause” standard called for legislative precision)
WRONG LAWS
RIGHT TO SILENCE
o Right to silence – protected under s.7.
o s.11(c) – an accused person is not a compellable witness at his or her own trial.
o The following cases make clear that a statutory compulsion to give testimony is a deprivation of liberty under s.7, which gives rise to a right against self-incrimination, which is a principle of fundamental justice.
R v Herbert (1990)
o PRINICPLE: Once right to silence in invoked, only voluntary confessions will suffice as evidence.
o Facts: The accused had been arrested and advised of his right to counsel. He did retain counsel, and he advised the police that he did not wish to make a statement. However, he was then placed in custody with an undercover police officer, disguised as another prisoner, who engaged the accused in conversation, and to whom the accused made an incriminating statement.
o SCC Held: Since the accused’s statements had been elicited by the questioning of the undercover police officer. In effect, the police had used a trick to subvert the accused’s election not to make a statement to the police. This was a breach of s.7 and the statement was excluded.
o A voluntary statement to another prisoner, or even to an undercover police officer, would not offend the right if the police officer did not actively elicit the statement.
R v Broyles (1991)
o Facts: The accused made a statement while in custody to a friend who visited him in the jail. Unknown to the accused, the friend had been recruited as a police informer.
o SCC Held: The statement was obtained in breach of the right to silence and the statement was excluded. The informer was acting as an agent of the state, and should be covered by the same constitutional restraints as a police officer. Since the recording showed that the informer had actively elicited the statement by his questions to the accused, it was obtained in breach of the right to silence.
R v Fitzpatrick (1995)
o PRINCIPLE: if accused voluntarily consented to a practice, the info. can be used against him.
o Issue: The federal Fisheries Act requires records be kept by fishers and supplied to government on a daily basis detailing their daily catch. Could these records be used as evidence at the trial of a fisher for the offence of overfishing which carried the penalty of imprisonment?
o SCC Held: the records could be used at the trial. There was no breach of s.11(c) because the accused was not being compelled to be a witness at his own trial. In the context of a regulatory scheme to which the accused had voluntarily submitted by engaging in the business of fishing, fundamental justice did not provide an immunity against the use of statutorily compelled information.
FAIR TRIAL
(a) The Right to a Fair Trial
o The principles of fundamental justice obviously require that a person accused of a crime receive a fair trial. In this respect, s.7 overlaps with s.11(d), which also guarantees to a person charged with an offence “a fair and public hearing by an independent and impartial tribunal”.
o Section 7 is, however, wider than s.11(d), because s.7 also applies to civil and administrative proceedings where they affect life, liberty or security of the person.
New Brunswick v G(J) – an application by the state to remove children from the custody of a parent affected the parent’s security of the person, and made s.7 applicable. The principles of fundamental justice required that a fair hearing be provided, which in turn required that the parent be provided with representation by state-funded counsel (in order to satisfy the fair hearing requirement under s.7).
(b) Full Answer and Defence
o R v Cook [1997] – SCC held that the Crown had a discretion as to the witnesses it chose to call, and the accused’s right to make full answer and defence was protected by his right to cross-examine those witnesses that the rown did call
(c) Pre-trial Disclosure
o Criminal proceedings are unlike civil proceedings in that there is no statutory provision for pre-trial discovery in criminal proceedings.
o In most jurisdictions a practice of voluntary disclosure by the Crown developed
R v Stinchcombe [1991]
o SCC held that pre-trial disclosure by the Crown of all info relevant to the conduct of the defence is a constitutional obligation, entitled by the accused’s rights to make full answer and defence.
o S.24(1) authorizes an “appropriate and just remedy” for a breach of the Charter. For default in pre-trial disclosure by the Crown, the appropriate and just remedy would normally be an order for disclosure, coupled with an award of costs to the accused.
NOTE:
è If a failure to disclose evidence to the defence is a deliberate or negligence default by the prosecurot, this will also be a breach of professional responsibility, exposing the prosecutor to discipline from provincial law society
(d) Pre-trial Disclosure by Third Party
R v O’Connor [1995]
o SCC Held: access to private records in possession of third parties could be necessary to an accused’s right to make full answer and defence. This production must be governed by a procedure...the defence must apply to the trial judge for the full disclosure order, and must establish on a balance of probabilities that the records are “likely relevant” in making full answer and defence.
R v McClure [2001]
o Solicitor-client privilege
o SCC Held: because the litigation file contained communications between a solicitor and his client for the purpose of providing legal advice or assistance, was covered by solicitor-client privilege. This means that, as a general rule, the privilege-holder could refuse to produce it in court proceedings.
o Held: because of the fundamental importance of solicitor-client privilege, the privilege would yield to the accused’s Charter right to full answer and defence ONLY IF the accused’s innocence was at stake
o 2 part process for trial judge to determine when the innocent-at-stake test passed:
(1) whether there was evidentiary basis to condlude that the privileged records COULD raise a reasonable doubt as to guilt. If passed, then;
(2) inspects records privately to determine if they were LIKELY to raise a reasonable doubt as to guilt
(e) Preservation of Evidence
o The Crown is under a duty to the accused to PRESERVE relevant evidence once it comes into the possession or the control of the Crown
o R v La [1997] – SCC held that the loss of a tape and the consequent failure to disclose it to the defence, was NOT a breach of s.7 Charter. A breach would occur if the Crown could not provide a satisfactory explanation for the loss
o Thus, the accused’s right to disclosure is not so broad as to cause a Charter breach every time evidence is lost or destroyed
R v Carosella [1997] – Parliament has now prohibited the disclosure to the accused in sexual-assault cases of confidential records
(f) Statutory Limits on Pre-trial Disclosure
o After O’Connor and Carosella, Parliament enacted legislation that placed severe restrictions on the disclosure of confidential records is sexual assault cases. The statutory requirements purport to place the procedure for the disclosure of third-party records...the legislation applies to ALL confidential records (with exemption of records created during police investigation).
o A confidential record will be produced for inspection by the court if the defence can establish both that it is:
(1) likely relevant; and
(2) its production is necessary in the interests of justice
o Once judge determines that records satisfy 1, and 2, the judge will order them to be produced, inspect the records privately, and determine whether (with reference to 8 factors 47.82), it isin the interests of justice to release some or all records to the defence
FAIR ADMINISTRATIVE PROCEDURES
Equality Rights s.15
DISTRIBUTION OF POWERS
o The real threat to equality in Canada comes not from legislative and official action, but from discrimination by private persons
CANADIAN BILL OF RIGHTS
o s.1(b) of the Canadian Bill of Rights applies only to federal Parliament and was superseded by s.15 of the Charter on April 17, 1985, and which NOW applies to BOTH the federal Parliament and the Provincial Legislatures
o The SCC developed a consistent definition under s.1(b) which relied on the cryptic notion of a “valid federal objective” (if a law pursued a valid federal objective, then it was NOT in breach of s.1(b).
o But the language of valid federal objective has been banished and replaced by a NEW doctrine (the indigenous Canadian doctrine)
AMERICAN BILL OF RIGHTS
o The language of s.15 of the Charter and its interaction with ss.1 and 28 call for the development of indigenous Canadian doctrine
SECTION 15 OF THE CHARTER
o s.15(1) – Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
o “in particular” = the named grounds are not exhaustive.
o “an individual” = probably excludes a corporation.
o “Law” = s.15 applies to the same range of governmental action as other Charter rights. The range is that defined in s.32
o s.15(2) – affirmative action/reverse discrimination.
o NOTE:
è s.15 came into effect on April 17, 1985.
è s.28 – guarantees rights equally to males and females.
o The power of legislative override (s.33) applies to s.15, but NOT to s.28.
o It is possible that even the limitation clause (s.1) does NOT qualify s.28, having regard to s.28’s opening words, “Notwithstanding anything in this Charter”.
APPLICATION OF S.15
(a) Individual
o The BENIFIT of the equality rights in s.15 is conferred upon “an individual”
(b) “Law” in s.15
o The BURDEN of the equality rights, like all other Charter rights, is imposed by s.32 on the Parliament and government of Canada and the Legislatures and government of each province.
o QUESTION:
o Does the reference to “law” in the various formulations of the equality rights in s.15 have the effect of narrowing the application of s.15 so as to exclude governmental action that is NOT law?
R v S.(S) [1990]
o PRINCIPLE: s.15 applies only to the establishing law itself.
o Facts: federal Young Offenders Act authorized the A.G of each province to establish a programme of “alternative measures” to divert young offenders away from proceedings in the courts. The diversion programmes were established in 9 provinces, but not in Ontario
o Issue: a young person accused of a crime in Ontario argued that the failure of the A.G to establish a programme in Ontario was a violation of the accused’s equality rights under s.15.
o SCC HELD: rejected this argument on the ground that s.15 applied only to “the law” and NOT to an exercise of discretion conferred by law, but only to the establishing law itself!
o Therefore, the A.G on Ontario’s decision could NOT be impeached under s.15.
(c) Private action
o s.32 excludes private action from the Charter.
o Thus, this means that s.15 does NOT apply to private acts of discrimination.
i.e. where an employer hires only male employees
i.e. where a landlord rents only to white people, etc.
o However, in all Canadian jurisdictions, Human Rights Codes have been enacted that prohibit private acts of discrimination in employment, accommodation and the provision of services.
o The Codes are enforced by the human rights commissions.
o The Codes are statutes but they do not enjoy constitutional status.
o SCC has held that a HR Code takes precedence over other statutes.
o The HR Codes, as statutes, are themselves subject to the Charter of Rights:
Blainey v Ontario Hockey Association (1986)
o Facts: a girl, who had been excluded by the Ontario Hockey Association from a boy’s hockey team, challenged a provision of the Ontario HR Code which generally prohibited discrimination by sex, but made an exception for single-sex sports teams.
o CA Held: the exception was a breach of s.15 because it denied the claimant the benefit of the HR Code by reason of her sex.
o Importance: The Charter of Rights did NOT apply directly to the action of the Ontario Hockey Association because it was private. But by extending the scope of the HR Code to action that the Code left unregulated, the Charter did have an indirect impact on private action.
o This also relates to McKinney v University of Guelph
EQUALITY
(a) Four Equalities of s.15
o s.15 provides that every individual is
1-equal before the law
2-equal under the law
3-has the right to the equal protection of the law
4-has the right to equal benefit of the law
(b) Absolute equality
o What is meant by a guarantee of equality? It cannot mean that the law must treat everyone equally.
i.e. The Criminal Code imposes punishments on person convicted of criminal offences; no similar burdens are imposed on the innocent.
i.e. Education Acts require children to attend school; no similar obligation is imposed on adults.
o Indeed, every statute or regulation employs classifications of one kind or another for the imposition of burdens or the grant of benefits
o Laws never provide the same treatment for everyone!
(c) Aristotle’s Definition
o ARISTOTLE à persons who are alike (similarly situated) should be treated alike.
o This is known as the“similarly situated” test = a denial of equality was made out if it could be shown that the law accorded the complainant worse treatment than others who were similarly situated.
o But the problem with this is: too high a level of generality to be useful
(d) Similarly Situated
o Before the SCC decided the Andrews case, the courts were applying the Aristotelian principle of equality known as the “similarly situated” test
o The test does not supply the crucial criteria that are required to determine who is similarly situated to whom, and what kinds of differences in treatment are appropriate to those who are not similarly situated.
o The test is deficient in the sense that it provides too little guidance to a reviewing court
(e) Formal and Substantive Equality
o The most common criticism of the “similarly situated” definition of equality is that it can mask discrimination that occurs indirectly rather than directly.
o A theory that only covers the DIRECT case is often described as “formal equality”, and is often attributed to the similarly situated definition (and to Aristotle)
o WINTEMUTE à “formal equality is not enough. It is also necessary to guarantee “substantive equality”
o Substantive Equality = a theory of equality that will capture INDIRECT as well as DIRECT discrimination
(f) Reasonable Classification
o The American doctrine of “reasonable classification” is like the “similarly situated” test in that it operates at a very high level of generality.
(g) Valid Federal Objective
o BEFORE THE ADOPTION OF THE CHARTER, Canadian courts applied the guarantee of equality in the Canadian Bill of Rights
o The SCC was to uphold any distinction in a statute if the statute pursued a “valid federal objective”
o This test brought a high degree of judicial deference to the Court’s review of the choices made by Parliament
(h) Early Application of s.15
o With the adoption of the Charter, the Canadian courts faced a dilemma: they could not properly apply s.15 so deferentially; and they could hardly review every distinction in the statute book.
o Until the Andrews case was decided in 1989, most courts followed the assumed that every legislative distinction was a proper subject for equality review, but they upheld every distinction.
o And so, with the absence of any clear standards for the application of s.15 encouraged lawyers to keep trying to use s.15 whenever a statutory distinction worked to the disadvantage of a client
o In the Andrews case, the SCC started to develop rules to control the floodgates opened by s.15 (due to the endless amount of possibilities associated with what is meant by ‘equality’).
o SCC held that s.15 was a prohibition of “discrimination”, and that discrimination could only be based on a ground that was listed in s.15 or that was analogous to those listed in s.15.
o This ruling had the merit of avoiding any inquiry into the abstract concept of equality.
o In the Law case, the court added a new restriction (which turned out to be short-lived) on s.15, that discrimination involved an impairment of “human dignity”.
o BUT in the Kapp case, the court added another new restriction on s.15, that the impairment of human dignity should no longer be a required element of s.15, but rather, substituted human dignity with discriminatory disadvantage/stereotyping.
o In other words, an equality claimant must establish something in addition to disadvantage based on a listed or analogous ground. That additional element (“discrimination”) is no longer an impairment of human dignity; it is now the perpetuation of disadvantage or stereotyping.
DISCRIMINATION
o It is now clear that s.15 should be read as prohibiting only those violations of equality that amount to “discrimination”
LISTED OR ANALOGOUS GROUNDS
(a) Requirement of a Listed or Analogous Ground
o QUESTION:
o What kinds of legislative distinctions count as discrimination, and are therefore prohibited by s.15?
o Before Andrews, all legislative distinctions were open to review under s.15, therefore causing floodgates to all equality challenges; regardless whether justification was to be found in s.1 or within s.15 itself.
Andrews v Law Society of BC (1989)
o PRINCIPLE: Citizenship is an analogous ground in s.15 AND established s.15 was essentially an anti-discrimination provision with its protections only benefiting “discrete and insular minorities”.
o Issue: A challenge to the statutory requirement of the province of British Columbia that members of the bar had to be citizens of Canada.
o SCC Held: This requirement was contrary s.15, and not saved by s.1. Citizenship qualified as an analogous ground of discrimination.
o After Andrews, it was clear that s.15 was a prohibition of discrimination and that discrimination involved the imposition of a disadvantage (the imposition of a burden or the denial of a benefit) on an individual by reason of the individual’s possession of a characteristic that was either listed in s.15 or was analogous to those listed in s.15.
o In Law, the court reaffirmed the restriction of s.15 to listed and analogous grounds as well as adding that “discrimination involved an impairment of ‘human dignity’” (which was short-lived)
(b) Addition of analogous grounds
o What are “analogous” grounds?
o These are all personal characteristics of individuals that are unchangeable (or immutable – permanent, final, irreversible), or at least unchangeable by the individual except with great difficulty or cost.
o They are not voluntarily chosen by individuals, but are an involuntary inheritance.
o They describe what a person is rather than what a person does.
o Thus, a law that has treated a person unfairly by reason of a condition over which the person has no control warrants a constitutional remedy.
Andrews – “Citizenship” is a personal characteristic that is “typically not within the control of the individual and, in this sense, is immutable”.
Nova Scotia v Walsh (2002) – “Marital status” is an analogous ground.
Egan v Canada (1995) – “Sexual orientation” (gay) is an analogous ground.
Vriend v Albert – Alberta’s HR code violates s.15 by failing to include sexual orientation as a prohibited ground of discrimination.
M v H – Ontario’s family law legislation violated s.15 by excluding same-sex couples from spousal support obligations.
Little Sisters Book – the practices of customs officials in obstruction the importation of gay/lesbian erotica was a breach of s.15.
o So, where there is no distinction based on a listed or analogous ground, there is no remedy under s.15
o When the court imports equality values into other Charter rights, it leaves out the restriction to listed and analogous grounds.
HUMAN DIGNITY
(a) Ambiguity in Andrews
o The simple reading of Andrews is: a breach of s.15 occurred whenever a disadvantage (burden or withheld benefit) was imposed on the basis of a listed or analogous grounds.
o This finding would exhaust the role of s.15, and issues of reasonableness or fairness of the challenged law would be addressed under s.1.
o After Miron and Egan, the SCC was splintered into 3 camps as to the interpretation of s.15, all with the same result
o This fragmentation lasted until 1999 when Law was decided.
(b) Impairment of Human Dignity
o In Law v Canada (1999)the SCC (IACOBUCCI) provided a new interpretation of s.15
(1) s.15 applied only to legislative distinction based on a listed or analogous ground
(2) Discrimination in s.15 involved an element additional to a distinction based on a listed or analogous ground.
(3) That additional element was an impairment of “human dignity”.
(This new interpretation differed from each of the three competing interpretations that had been offered in Miron and Egan)
Law v Canada (1999)
o PRINCIPLE: in addition to a breach of a listed or analogous ground, an impairment of human dignity must be established to satisfy s.15. A law will be discriminatory if it impairs human dignity.
o Facts: Under the federal CPP, survivors’ benefits were payable to the spouses of deceased contributors, unless the spouse was under the age of 35. The claimant was the survivor of a deceased contributor, but, because she was under 35, she was ineligible for a survivor’s benefit.
Argument: the law withheld a benefit from her on the ground of her age, age being a listed ground under s.15. On simply interpretation, this would have been enough to constitute discrimination under s.15, which would have sent the issue on to s.1.
o SCC Held: by adding a new requirement of human dignity to s.15, the court imposed on the claimant the burden of establishing that the age-based distinction was an impairment of her human dignity. She was unable to discharge that burden, and so her equality claim was denied without recourse to s.1.
o Reasoning: Why was the age-based distinction not an impairment of human dignity? In the context of the CPP, the court recognized the reality that young widows would have less difficulty than older persons in finding and maintain employment.
o IACOBUCCI à suggested four “contextual factors” that are helpful to the inquiry:
a. The factors were the existence of “pre-existing disadvantage, stereotyping, prejudice, vulnerability”
b. The factors were the correspondence between the distinction and the claimant’s characteristics/circumstances
c. The factors were the existence of ameliorative purposes or effects on other groups
d. The factors were the nature of the interest affected
o In this case, the second factor was important – the age qualification for CPP survivor benefits corresponded to the actual characteristics and circumstances of youthful surviving spouses.
o HOGG’s critique of Law àThis is unfortunate. The element of human dignity is vague, confusing and burdensome to equality claimants. In the inquiry into human dignity, the court does not need to make a finding of minimum impairment (or least drastic means), which under s.1 calls for an inquiry as to whether there are alternative legislative measures that would accomplish the legislative purpose without impairing the right as much.
àAlso, the fact remains, that a failure to persuade the Court that human dignity is impaired causes the claimant to lose the case. Even in Law itself, in many subsequent cases, the claimant has established a disadvantage based on a listed or analogous ground, bit has lost the case for failure to establish an impairment of human dignity. The law has been upheld WITHOUT the need for the government to establish s.1 justification
o After 1999 every case followed the Law analysis until Kapp [2008], when the SCC retracted the requirement of an impairment of human dignity, and replaced it with what seems to be the very similar requirement of “discrimination”.
(c) The factor of correspondence
o In Law, the SCC suggested 4 “contextual factors” that were to be taken into account to determine whether or not human dignity is impaired by a law that imposes a disadvantage on the basis of a listed or analogous ground.
o The second correspondence factor related in Law and therefore, the claimant, who was denied the spousal benefit on the basis of her age, was unable to establish an impairment of her human dignity and lost the case.
o Another age-based case:
Gosselin v Quebec (2002)
o Facts: A workfare program provided low welfare benefits for persons under 30, unless they attended training programs, in which case standard benefits were payable.
o SCC Held: The claimant was unable to access the training programs, and had been forced to subsist on low benefits, was unable to establish an impairment of her human dignity and lost her case. The age-based requirement corresponded to the increased capability of young persons to benefit from training programs.
o While judicial discussion of human dignity often ranges far and wide, the correspondence factor seems to have become the key to impairment of human dignity.
o It seems to come down to an assessment by the court of the legitimacy of the statutory purpose and the reasonableness of using a listed or analogous ground to accomplish that purpose.
o If this is right, the correspondence factor leaves very little work for s.1 to do
(d) Discrimination without Human Dignity
R v Kapp [2008]
o Principle: impairment of human dignity should no longer be a required element of a s.15 claim.
o Issue: equality challenge to a fishing licence that gave exclusive rights to aboriginal fishers
o SCC Held: the licence was upheld under the affirmative-action clause of s.15(2). An impairment of human dignity should no longer be a required element of a s.15 claim.
o MCLACHLIN and ABELLAà They did not doubt that “human dignity is an essential value underlying the s.15 equality guarantee”, but they acknowledged that “as a legal test” human dignity was “confusing and difficult to apply” and was “an additional burden on equality claimants, rather than the philosophical enhancement it was intended to be”
o Thus, Kapp assumes that there is still an element of s.15 in addition to a disadvantage imposed on listed and analogous ground. That element is no longer called “human dignity” – it has no other than “discrimination” – but it is identified by the same four contextual factors that were formerly used to identify an impairment of human dignity.
o So, the impairment of human dignity should no longer be a required element of s.15, but rather, substituted human dignity with discriminatory disadvantage/stereotyping.
o In other words, an equality claimant must establish something in addition to disadvantage based on a listed or analogous ground. That additional element (“discrimination”) is no longer an impairment of human dignity; it is now the perpetuation of disadvantage or stereotyping.
o HOGG à the definition of discrimination as the perpetuation of disadvantage or stereotyping is almost as vague as human dignity, and it continues to rely on the same contextual factors as were used to identify human dignity. Thus, the restatement does not seem to be successful wither in clarifying the law or in removing an unnecessary burden from equality claimants.
o What the courts seemed to be doing in Kapp is signalling a change of direction in its equality doctrine, but for that new direction to take hold. More guidance is needed from the court.
Ermineskin Indian Band and Nation v Canada [2009]
o Facts: four Indian bands had surrendered their interests in the oil and gas under their reserves to the federal Crown so that the Crown could make arrangements with third parties to exploit the resources. This was done and the Crown received and held the oil and gas royalties on behalf of the bands. The royalties were paid into the consolidates revenue fund, where there were separate accounts for each band, and each account was credited with interest at a floating rate that was calculated via average rate for long-term government bonds over the period for which the interest was paid
o Issue: whether the government was in breach of their fiduciary duty? The band claimed that the return on their money would have been higher if the government had invested the money in a diversified portfolio of investments.
o SCC Held: dismissed this claim on the basis that the government was precluded by statute from external investment of the bands’ money. The Indian Act required Indian money to be paid into the consolidated revenue fund, and other statutory provisions prohibited external investment of money held in the consolidated revenue fund.
o ROTHSTEIN à confirmed Kapp and said that is was not enough for an equality claimant to show a disadvantage that the challenged law was “discriminatory”, which involved establishing that the law “perpetuates prejudice or stereotyping”.
o ROTHSTEIN made NO reference to the four contextual factors from Law. But held that the Indian Act requirement to keep the bands’ funds in the consolidated revenue fund, as opposed to investing them, involved less control over the funds by the Crown, greater liquidity for the bands, and no risk of loss to the bands. These features of the statutory regime “do not draw a distinction that perpetuates disadvantage through prejudice or stereotyping”. This defeated the bands’ equality claim without the need to go through a s.1 analysis.
DISADVANTAGE
(a) Selection of comparator group
o In order to establish discrimination under s.15, an individual must show that he or she has suffered a disadvantage by reason of his or her possession of one of the characteristics named in s.15, or by an analogous characteristic
o The presence of disadvantage or unequal treatment requires a comparison between the legal position of the claimant and that of other people to whom the claimant may legitimately invite comparison.
1. Whether the group to which the claimant compares herself is the appropriate comparator group? And
2. Whether the distinction that the law draws between the claimant and the comparator group is disadvantageous to the claimant?
o Andrews – the plaintiff’s non-Canadian citizenship denied him access to the legal profession, while permitting access to others whose qualifications to practice law were no different from his, except for their possession of Canadian citizenship.
Hodge v Canada (2004)
o PRINCIPLE: the correct comparator group must be selected in order to prove discrimination.
o Facts: the claimant applied for survivor’s benefit under the CPP. The benefit was payable to a person who was the “spouse” of a CPP contributor at the time of the contributor’s death. “Spouse” included common law partners. The claimant had been the common law wife of a deceased CPP contributor, but she had left him shortly before his death. She was denied the benefit because she was no longer his spouse at the time of his death.
o Argument: she argued that the law discriminated on the ground of marital status, which is an analogous ground under s.15.
o SCC Held: she had selected the wrong comparator group. The correct comparator was not married spouses living apart at the time of the contributor’s death (as she argued), but former spouses. All former spouses, whether the prior marriage was legal or common law, were treated equally. The claimant had therefore suffered no disadvantage on account of her marital status.
Auton v BC (2004)
o PRINCIPLE: the correct comparator group must be selected in order to prove discrimination.
o Facts: a claim of discrimination was made by autistic children and their parents, who complained that the province did not fund a specific therapy for the treatment of autism.
o SCC Held: the error in the lower courts was in the selection of the comparator group. It was wrong to compare the autism claimants with the recipients of fully funded therapies, because this ignored the fact that the autism therapy had only recently become recognized as medically necessary. Funding of new therapies “may be legitimately denied or delayed because of uncertainty about a program. Because the claimants adduced no evidence that the province was funding “other comparable, novel therapies”, they could not show disadvantage or unequal treatment.
o In contrast, see Nova Scotia v Martin - Nova Scotia’s statutory worker’s compensation scheme violated s.15 for providing short term benefits for work-related ‘chronic pain’. Court acknowledged that chronic pain was unlike other work-related injuries, and held that comparator group is the group of workers subject to the Act who do not have chronic pain and are eligible for comparison for their employment-related injuries. This comparator group definition established that there was an unequal treatment claim of personal characteristic of physical disability.
(b) Requirement of Disadvantage
o Once the appropriate comparator group has been selected, it is necessary to compare the treatment provided by the law to the claimant with the treatment provided to the comparator group.
o Only if the law treats the claimant less favourably is the claim of disadvantage or unequal treatment made out.
Thibaudeau v Canada [1995]
o Facts: divorced woman who had custody of the children and who received child-support payments.
o Issue: She objected to a provision of the Income Tax Act that required her to pay income tax on the support payments she received from her ex. She argued that the tax provision discriminated against separated custodial parents, because in the intact family the income tax on the money spent on child support would be paid by the spouse who earned the income.
o SCC Held: rejected her argument because the inclusion requirement on the recipient spouse was matched by a deduction for the payor spouse. Since the payor spouse was usually in a higher tax bracket than the recipient spouse, the tax saved by the deduction would normally exceed the tax incurred by the inclusion.
o Thus, the claimant was unable to establish that she had suffered a disadvantage by reason of her marital status. The Income Tax Act did not discriminate against them, and there was no breach of s.15.
Eaton v Brant County Board of Education (1997)
PRINCIPLE: s.15 will not amount to a disadvantage if the effect is in the best interest of the child.
Facts: a tribunal determined that a 12 year old with cerebral palsy, who had for three years been educated in a regular classroom, should be placed in a special classroom.
Parent’s argument: the statutory power to place pupils in a separate classroom without parental consent was a violation of equality rights.
SCC Held: there was no breach of s.15. The tribunal’s finding showed that the segregated setting was in the best interests of the child. The equality right was that of the child, not her parents. The placement of the child could not be characterized as the imposition of a disadvantage of the child.
(c) Objective and Subjective Disadvantage
o How does one measure disadvantage?
Egan v Canada [1995]
o Issue: same-sex couple challenged the spouse’s allowance that was payable under the federal Old Age Security Act to the “spouse” of a pensioner. The term spouse included persons in common-law relationships, but only if they were “of the opposite sex”
o SCC Held: denied the claim to spousal status. The court applied a subjective standard: the claimants were disadvantaged because, according to their subjective calculus of costs and benefits, the disadvantage of not being officially recognized as spouses outweighed the advantage of higher single-status social assistance.
o Subjective standard = from the point of view of the individual who makes the claim of discrimination
o Objective standard = from the point of view determined by the court
o This subjective standard seems to have been the premise of the finding of disadvantage in:
McKinney v University of Guelph [1990]
o SCC Held: the mandatory retirement age 65 constituted discrimination on the basis of age, and was upheld. Held that the majority retirement was justified under s.1.
o Taking an objective standpoint, the court assumed that without discussion that mandatory retirement was a disadvantage to employees aged 65....this is probably wrong!
o From their own subjective standpoint, the claimant professors were disadvantaged
o NOTE:
è But Charter decisions do NOT affect only the parties who believe that they are disadvantaged
o Therefore, the court in McKinney held that the majority retirement was justified under s.1. Mandatory retirement offered significant benefits to individual university professors, as well as to the universities as centres of teaching and research.
o In the end, the court’s objective calculus of costs and benefits, rather than subjective calculus of the claimants, is the one that prevailed.
o The objective approach to disadvantage was also applied in R v Swain [1991]
o The fluctuations between objective/subjective in the SCC’s inquiries into disadvantage may have been resolved in: Law – whether an impairment of human dignity was to be assessed from a subjective or an objective perspective? The court answered that BOTH PERSPECTIVES MUST BE EMPLOYED!
(d) Human Dignity and Disadvantage
Canadian Foundation for Children, Youth and the Law v Canada (2004) – SCC decided that the Criminal Code provision that permitted the reasonable use of corrective force against children by parents and teaches was on the whole beneficial to children.
o When Kapp removed human dignity from s.15 analysis, it replaced the concept with “discrimination”, a similarly indeterminate judicially-created element to be established by the equality claimant.
o The Kapp requirement has the same tendency to absorb the requirement of disadvantage
Ermineskin Indian Band and Nation v Canada [2009] – the SCC dismissed an equality challenge by Indian bands to the investment provisions of the Indian Act, which precluded the external investment of band moneys held by the Crown.
(e) Group disadvantage
o In Andrews, the SCC struck down a British Columbia law that excluded non-citizens from admission to the bar. Disadvantaged or powerlessness was characteristic of the groups protected by s.15.
R v Turpin (1989)
o Issue: a s.15 challenge was mounted to a provision of the Criminal Code that stipulated that murder was to be tried by a judge and jury, and that gave no right to elect a trial by judge alone. Alberta gave an accused the right to elect a trial by judge alone. The three accused were charged with murder in Ontario and wished to be tried by judge alone and argued that the failure of the Criminal Code to accord that right to an accused in Ontario was discriminatory, because the right was available to an accused person in Alberta.
o SCC Held: s.15 argument was rejected on the basis that the three accused were not members of a disadvantaged group. Since the claim was outside the purpose of s.15, it was also outside the scope of s.15, and the claim accordingly was rejected.
o WILSON à “it is not sufficient for the equality claimant to show that he or she was disadvantaged by the impugned law. That, obviously, was necessary, but was not sufficient. The claimant had to go further to show that the distinction employed by the statute was one that defined a group that was disadvantaged in other respects”
o JOHEN HART ELY àwhen judges strike down a discriminatory law, what they are really doing is removing impediments to access to the democratic political process. This view of equality cats the judges “in the role of servants of democracy even as they strike down the actions of supposedly democratic governments”
o The view of equality review as a correction of political powerlessness undoubtedly contains a valuable insight as to why discrimination by legislative bodies may properly be corrected by courts. But it is doubtful whether it is appropriate to regards the political powerlessness of a group as an essential ingredient of discrimination under s.15.
o Assuming that general disadvantage could be identified with particular groups, the awkward question arises as to how to deal with an individual who has been discriminated against on a named or analogous ground, although the individual belongs to a group that is in other respects not subject to disadvantage?
o The implication in Turpin is that an individual member of the advantaged part of a named or analogous group would NOT invoke s.15, even if unjust treatment was established.
o Whatever the justification for such a stern doctrine, it is hard to square with the unqualified language of s.15 and it has been rejected by the SCC...
R v Hess (1990) – the provision did NOT offend s.15 because the definition of intercourse used the concept of penetration, which could as a matter of biological fact be committed only by a man, therefore it was not discriminatory to apply the offence only to men. Therefore, although finding no discrimination, the general disadvantage argument from Turpin was not repeated because the arguments take the language further than is justified. Clearly assuming that discrimination against men was contrary to s.15.
History:
o Miron [1995] – membership in a disadvantaged group was not a prerequisite, but merely an “indicator” of an analogous group
o Egan [1985] – “while historical disadvantage or a group’s position as a discrete and insular minority may serve as indicators of an analogous ground, they are not prerequisites for finding an analogous ground”
o Law [1999]– group disadvantage is a “contextual factor” to determine whether there has been an impairment of the claimant’s human dignity. The “important purpose of s.15(1) in protecting individuals or groups who are vulnerable, disadvantaged, or members of ‘discrete and insular minorities’ should always be a central consideration
o Kapp [2008]– replaced human dignity with “discriminatory” showing that the claimant is a member of a generally disadvantaged group will assist in persuading the court that the legal distinction is discriminatory.
DIRECT AND INDIRECT DISCRIMINATION
(a) Substantive Equality
o A law may be discriminatory on its face (DIRECT discrimination), in its effect (INDIRECT discrimination), and in its application (INDIRECT discrimination).
o Substantive Equality = used to indicate a theory of equality that covers INDIRECT as well as DIRECT discrimination.
o Since Andrews, the SCC made it clear that s.15 required substantive equality, rather than formal equality.
o Therefore, Substantive equality has remained a central assumption of interpretation of s.15.
o s.15 therefore applies to all three kinds of laws:
(1) the law that is discriminatory on its face;
(2) the law that is discriminatory in its effect; and
(3) the law that is discriminatory in its application
(b) Unintended Discrimination
o INDIRECT discrimination may be unintended. However, because intention is not an ingredient of discrimination under s.15, it is not necessary to make any judgement about whether a case of indirect discrimination is intended or not
o Even DIRECT discrimination may be unintended.
o In Andrews, because the EFFECT of the law was to disadvantage a person on the basis of citizenship, there was a breach of s.15. The benign PURPOSE of the law was irrelevant under s.15
o The SCC held – it is not necessary to show that PURPOSE of a challenged law is to impose a disadvantage on a person by reason of a listed or analogous characteristic. It is enough to show that the challenged law has this EFFECT. It was, however, relevant to s.1.
o Applied to s.15, this doctrine leads to the conclusion that either discriminatory PURPOSE or a discriminatory EFFECT will constitute a breach of s.15.
o The PURPOSE of the law will always be relevant to justification under s.1 because a law limiting a Charter right cannot be justified under s.1 unless it serves an important PURPOSE that is compatible with the values of a free and democratic society
(c) Reasonable accommodation
o A form of accommodation that is required under s.15:
Eaton – The school board’s duty of reasonable accommodation was to be driven by the best interests of the child, not the wishes of the parents. This fulfilled the school board’s duty of accommodation, and there was no breach of s.15.
JUSTIFICATION UNDER S.1
o Since Law imported human dignity into s.15, there has been only one case in which s.1 has saved a law found to be in breach of s.15:
Newfoundland v N.A.P.E. (2004) – it was a breach of human dignity to maintain in force wages that did not do justice to the female workers’ contribution. Therefore, there was a breach of s.15. However, the court accepted that the province had experienced financial issues and so the law which postponed the increase in wages of female hospital workers in order to achieve pay equity with men was upheld under s.1.
o When the court uses the “correspondence” factor to decide the issue of human dignity, it considers whether the PURPOSE of the law is legitimate and the use of a listed or analogous ground to accomplish the PURPOSE is reasonable. This is really only a lose form into justification under s.1.
o It is not surprising that s.1 has become less important in equality cases since human dignity element was introduced in 1999. The court’s retraction of human dignity in Kapp is unlikely to restore s.1 to its intended justificatory role because its substituted concept of “discrimination” appears to be very similar to human dignity.
AFFIRMATIVE ACTION
o The SCC has consistently interpreted s.15(1) as implementing a substantive rather than a formal definition of equality.
o Under a substantive definition of equality, different treatment in the service of equity for disadvantaged groups is an EXPRESSION OF EQUALITY, not an exception to it.
o In Kapp, the SCC rejected that s.15(2) was an exception to s.15(1)
“the focus of s.15(1) = was on PREVENTING governments from discriminating”
“the focus of s.15(2) = was on ENABLING governments to pro-actively combat discrimination”
o But, held that s.15(2) was not merely an interpretation of s.15(1), since s.15(2) had an “independent role” to play
DISCRIMINATION PERMITTED BY CONSTITUTION
(a) Age in ss. 23, 29, 99
o If the Constitution permits discrimination, the provisions would therefore be contrary to s.15, and invalid (unless saved by human dignity, or s.1)
o There are provisions sheltered from Charter attack
(b) Race in s.91(24)
o There are provisions sheltered from Charter attack. This issue arose under the equality clause of the Canadian Bill of Rights:
R v Drybones (1969) – SCC held that the use of the racial classification “Indian” as an ingredient of an offence was contrary to the equality clause of the Canadian Bill of Rights.
o Did Drybones mean that the entire Indian Act was inoperative, and that s.91(24) could no longer be used by the federal Parliament?
o Laws enacted under s.91(24) are NOT vulnerable to challenge under s.15.
o However:
Ermineskin Indian Band and Nation v Canada [2009] - this was a challenge to the Indian Act restrictions on the investment of Indian band moneys, the special constitutional status of Indian was NOT considered. The court assumed that a s.15 challenge was available IF the Indian Act imposed a disadvantage on Indians
(c) Religion in s.93
Ontario Separate School Funding case (1987)
o Issue: Ontario statute extended full public funding to Roman Catholic separate schools was attacked on the ground that it was a violation of s.15 to confer a benefit on Roman Catholic separate school supported, a class defined by their religion. Religious schools other than Roman Catholic received no funding.
o SCC Held: upheld the statute on the basis that it was permitted by the Constitution.
o ESTEY à “The Charter cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution”.
Adler v Ontario (1996) – special constitutional status of the Roman Catholic schools.
o IACOBUCCI à “the claimants could not invoke a comparison with the fully-funded PUBLIC system, because s.93 constituted a ‘comprehensive code’, and the public schools as well as the Roman Catholic separate schools were ‘part and parcel’ of that code”
o Therefore, the Charter, although adopted later in time, is NOT to be read as impliedly repealing or amending those provisions of the earlier instrument that are inconsistent with the unqualified language of s.15 (or other guarantee).
o Rather, s.15 is to be read as qualified by the language of the earlier instrument.
(d) Province of residence in ss.91,92
o Differences between provincial laws cannot amount to discrimination under s.15, because that would require a uniformity of provincial laws which would be inconsistent with the distribution of legislative powers in ss.91 and 92.
o Therefore, the federal system operates as a general qualification of s.15’s guarantee of equality.
(e) Citizenship in s.6
o The Charter contains some implicit qualifications of s.15’s guarantee of equality
o Because s.6(1)’s guarantee of the right to remain the Canada applies only to a “citizen”, it has been held that the Immigration Act may validly provide for the deportation of non-citizens who have committed criminal offenses, or certified as a threat to national security.
o Normally, the imposition on non-citizens would be a breach of s.15.
(f) Language in ss.16-23
o This is another qualification of s.15
o It is equality of the French and English languages
o But by implication, they accord a “special status”: to French and English “in comparison to all other linguistic groups in Canada.
RACE
o Race is a ground of discrimination expressly prohibited by s.15
o A racial distinction in a statue would be upheld if the statute established an ‘affirmative action’ programme within the terms of s.15(2), and might be upheld under s.1 if the statute fell outside the strict terms of s.15(2), but pursued a benign (kind) PURPOSE of an affirmative action kind.
o Otherwise it is difficult to imagine a situation in which a racial distinction could be possibly upheld.
o REMEMBER:
è s.15 only has a limited role to play with respect to aboriginal peoples, since s.35 “special status” applies for them, which is recognized by s.25 of Charter.
è In addition, the federal Parliament, under s.91(24) gives effect to aboriginal or treaty rights, are NOT affected by s.15 of Charter.
RELIGION
o Religion is a ground of discrimination expressly prohibited by s.15.
o To the extent that a denominational school system is protected, or even contemplated, by s.93, NO s.15 challenge is open
Alta v Hutterian Brethren of Wilson Colony [2009]
o Issue: the Christian denomination, objected on religious grounds to the province’s law requiring that a driver’s licence display a photo of the licence holder. This offended their belief that having their picture taken was prohibited by the Bible.
o SCC Held: accepted that the requirement was a limit on their freedom of religion, but, upheld the law under s.1. the court rejected s.15 argument, holding that a universal requirement of photo licences did NOT create a distinction based on religion
SEX
(a) Direct discrimination
o Sex is a ground of discrimination expressly prohibited by s.15
Weatherall v Canada (1993)
o Argument: it was discriminatory because female prisoners were searched and observed only by guards of the same sex.
o SCC Held: even if there was a breach of s.15, it was saved by s.1. The “humanizing effect” of having women in male prisons and the enhancement of “employment equity” constituted sufficient justification for the practices.
Benner v Canada (1997)
o Issue: different standard of admittance to Canada depending on Canadian parent’s sex.
o SCC Held: this was discrimination by sex, which was a breach of s.15. The breach could not be justified under s.1, because there was no rational basis to suppose that the children of Canadian mothers required a more rigorous screening process than children of Canadian fathers.
Trociuk v BC (2003)
o Facts: a father challenged the provincial law that permitted a mother to leave the father’s name off the birth certificate and to alone choose the surname of the child.
o SCC Held: the law distinguished on the basis of sex, since fathers were disadvantaged in comparison with mothers under the Act. The exclusion of fathers from the registration and naming process impaired their human dignity. Therefore, the law infringed s.15 (not justified under s.1), and was invalid.
Newfoundland v N.A.P.E [2004]
o Facts: Newfoundland enacted a Public Sector Restrain Act which delayed for 3 years the introduction of pay equity for female workers in the hospital sector. The Act modified a pay to the pay of hospital workers in female-dominated jobs which would bring their pay up to that comparable male workers.
o Issue: the Act made no provision for retroactive pay for the period of dely.
o SCC Held: the Act was a breach of s.15. By postponing the implementation of that right, the Act singled out a group of women who were being paid less than men who performed work or equal value, and perpetuated their disadvantage.
o This was therefore a discrimination on the ground of sex.
o HOWEVER, the Act was saved by s.1 because the Act was a response to a “financial crisis” in the province that provided justification for the limit on the claimants’ Charter rights.
(b) Systemic Discrimination
o To the extent that discrimination against women takes place in the private sphere from which the Charter is excluded, any remedy would have to lie under the Human Rights Code.
o Symes v Canada [1993] – SCC Held acknowledged that women disproportionately bore the social costs of child care, but held that the taxpayer (self-employed female lawyer with 2 kids) had not established that women disproportionately bore financial costs of child care. Since the deduction would be available with respect only to the financial costs of child care, it could benefit men as much as women, and its restriction did NOT amount to discrimination on the basis of sex.
SECTION 28
o This falls short of equal treatment of “male and female persons”
o All that s.28 seems to require is that the other provisions of the Charter be implemented without discrimination between the sexes.
AGE
o Age is a ground of discrimination expressly prohibited by s.15.
Law v Canada – Although the law imposed a distinction on the listed ground of age, it was not discriminatory because it did not impair human dignity since widows under the age of 35 were more capable than older persons of maintaining and finding employment. The exclusion of persons under 35 did not imply that they were less capable or less worthy, but designed to apply limited resources.
Gosselin v Quebec (2002) – the law imposed a distinction of age, but it was not discriminatory because it did not impair human dignity. On the contrary, it assumed that young people were more able than older people “to benefit from training and education, more able to get and retain a job ...”.
Canadian Foundation for Children ... – The law drew a distinction based on age, since the same force would amount to assault if exercised on an adult. SCC Held that the decriminalization of corrective force against children was not based on a devaluation of children, but was based on the view that the criminal law should not intrude into normal school and family discipline.
o MCLACHLIN à s. 43 defence (Criminal Code) “is firmly grounded in the actual needs and circumstances of children, and therefore does not impair their dignity.
McKinney – mandatory retirement at a university was discrimination based on age within s.15, but upheld under s.1.
Tetreault-Gadoury v Canada (1991)
o Issue: whether a provision of the Unemployment Insurance Act, which denied benefits to persons over 65, was in breach of s.15
o SCC Held: the provision violated s.15. However, the court departed from McKinney to hold that the age-65 bar could NOT be justified under s.1.
o The court distinguished McKinney on grounds such as the limited resources of a university.
o Here, the rejection of s.1 justification suggests that age distinctions are vulnerable to Charter attack, and even that mandatory retirement in workplaces other than universities and hospitals may be justified under s.1.
o The court distinguished McKinney on 3 grounds (which are only applicable to public and private university working places)
a. That a university was “a closed system with limited resources”
b. That “faculty renewal” was “crucial to extending the frontiers of knowledge”
c. That “academic freedom” required a minimum of performance review up to retirement age
MENTAL OR PHYSICAL DISABILITY
o Mental or physical disability is a ground of discrimination that is expressly prohibited by s.15
o Some restrictions are proper.
i.e. a blind person is properly disqualified from holing a driver’s licence and a mentally incompetent person is properly disqualified from making a will.
o Thus, the rules that discrimination may be unintended, may be indirect, and may require reasonable accommodation, are of special importance for this ground of discrimination
o Wynberg v Ontario [2006]- A disabled child was rejected by the courts because the therapy was provided to pre-school children would NOT be the appropriate accommodation for school children, since it was so time-consuming and intensive that it could not be fitted into a full-time school program without abandoning most of the other instruction.
Granovsky v Canada (2000)
o Facts: federal legislation establishing the CPP required the person claiming the disability pension to establish not only that he suffered from permanent disability but also that he had contributed to the Plan in five of the previous ten years. Mr G was unable to satisfy the contribution requirement because of his disability and he fell outside of the exception in such circumstance of disability because the Plan only covered “permanent” disability while his was temporary.
o SCC Held: this was NOT a breach of s.15. By giving preference to the claims of those who had been permanently disabled during the qualifying period, Parliament was recognizing a greater need and not impairing the human dignity of those who had been temporarily disabled.
o The pattern of deference (where the court defers to a legislated effort to accommodate persons with disabilities) was broken in:
Nova Scotia v Martin (2003)
o Issue: the worker’s compensation scheme provided only for a four-week program of rehabilitation for a worker who was still suffering from chronic pain after the apparent healing of a work-related injury; after taking the program, the worker was supposed to return to work.
o SCC Held: this program was not appropriate as a general answer to chronic pain, which often persisted beyond the four-week period. The distinction also impaired the human dignity of chronic pain sufferers, and therefore counted as discrimination that was prohibited by s.15. It could not be justified under s.1.
o An earlier case where the SCC granted a s.15 remedy for discrimination on the ground of disability is:
Eldridge v BC (1997)
o Issue: the BC health services plan had not accommodated the special needs of deaf people seeking medical services. Deaf persons were not provided with publicly funded sign-language services at a hospital
o SCC Held: the failure was a breach of s.15. Because communication was a crucial part of the provision of most medical services, it was a denial of equal benefit to deaf people not to provide the assistance that would enable effective communication to occur between a deaf patient and a hospital or doctor.
Rodriguez (assisted suicide) – the prohibition was justified under s.1.
CITIZENSHIP
o Citizenship is NOT a ground of discrimination that is expressly mentioned in s.15
o BUT it is analogous to those expressly mentioned (see Andrews and see Lavoie)
MARITAL STATUS
o Marital status is NOT a ground of discrimination hat is expressly mentioned is s.15
o BUT in:
Miron v Trudel (1995)
o Facts: Ontario’s Insurance Act limited accident benefits to the legally-married spouses of an insured, which had the effect of excluding common-law spouses.
o SCC Held: this was discrimination based on marital status.
o NOTE:
o This case is pre-Law (1999), and the human dignity requirement was not necessary.
o After Miron, the SCC added its new requirement of “human dignity” to s.15
o Did that additional barrier to s.15 protect some elements of marriage??? YES!!!
Nova Scotia v Walsh (2002)
o Issue: the provinces matrimonial law imposed a regime of shared property on married spouses, which came into effect on the breakdown of the marriage. However, the law was restricted to legally-married spouses.
o SCC Held: marital status is an analogous ground under s.15 (Miron v Trundel), but the exclusion of unmarried cohabitants did NOT impair human dignity. The matrimonial property law was upheld.
o BASTARCHE à denied that the law treated unmarried cohabitants as less deserving of respect than married spouses.
o Reasoning: The law was premised on the assumption that only those persons who had made the choice to get married had committed themselves to a relationship of such permanence that it would justify imposing on them the obligations to contribute to and share in each other’s assts.
o My critique: this assumes that people are getting married in order to have a 50-50 split. Also, in each case a contract (pre-nup) could be signed.
SEXUAL ORIENTATION
o Sexual orientation is NOT listen in s.15
o BUT has been held to be a ground of discrimination that is analogous to those listen in s.15.
M v H (1999) – the exclusion of persons in same-sex relationships from the spousal support obligations in Ontario’s family law legislation was unconstitutional. The definition of spouse that had this effect discriminated on the ground of sexual orientation, which was an analogous ground under s.15, and it also impaired human dignity by implying that persons in same-sex relationships were less worthy of protection than persons in opposite-sex relationships.
o The traditional definition of marriage led to challenges by same-sex couples who wished to get married.
o The Government changed its policy and decided not to introduce legislation defining marriage as “the lawful union between TWO PERSONS to the exclusions of all others”
Same-Sex Marriage Reference [2004]
o SCC Held: Parliament’s power over “marriage” in s.91(26) of Constitution extended to the legalization of same-sex marriage.
PLACE OF RESIDENCE
o Place of residence is NOT an analogous ground.
i.e. It cannot be a breach of s.15 that the minimum wage is higher in Manitoba then it is in PEI, or that nurses have the right to strike in Ontario but not in Alberta. These differences flow from the fact that labour law is a matter coming within property and civil rights in the province.
R v Turpin – trial by judge alone.
Corbiere v Canada (1999) – “Aboriginality-residence” as a requirement to vote was an analogous grounds, and that the voting requirement was a breach of s.15.
R v S.(S) (1990)
o Issue: whether Parliament could make distinctions between different provinces without offending the equality guarantee. The AG of each province was to establish a programme to divert young offenders away from the courts.
o This allowed different programs to be implemented or not at all. A young offender in Ontario, where there was no program, argued that this failure was a violation of his equality right under s.15.
o SCC Held: no breach of s.15.
o s.15(2) – affirmative action – R v Kapp (2008)
o The government's objectives correlated to the actual economic and social disadvantage suffered by members of the three aboriginal bands. As such, the program was protected by s. 15(2) and did not violate the equality guarantee in s. 15 of the Charter.
OCCUPATION
o Occupation is NOT an analogous ground.
Dunmore v Ontario [2001]
o SCC Held: reversed itself on the freedom of association argument, and held that the exclusion of agricultural workers from Ontario’s Labour Relations Act was a breach of s.2(d) (and could not be saved under s.1)
Health Service Bargaining Case [2007]
o Facts: BC enacted an Act that purported to override some rights possessed by the province’s unionized health care workers under their collective agreements.The Act laid down new rules...which were designed to gave the hospitals and other health sector employers more freedom in managing their workforce so as to deliver services more efficiently and rein in the costs of publicity funded health care.
o Issue: whether the unions can attack the Act as a breach of freedom of association in s.2(d) Charter?
o SCC Held: did not import an equality value into s.2(d) (as it did in Dunmore ). The court held for the first time, that s.2(d) directly protected the union right of collective bargaining.
o The court said that the adverse affects on the Act on health care workers “relate essentially to the type of work they do, and not to the persons they are”.There was no “differential treatment based on personal characteristics”
o Once again, occupational status was REJECTED as an analogous ground
Remedies s.24(1), s.52(1)
SUPREMACY CLAUSE
(a) Section 52(1)
(b) Section 24(1) compared
s.24(1)
s.52(1)
applicable only to breaches of the Charter.
applicable to the entire Constitution, including the Charter.
Available only to a person whose rights have been infringed.
Available in some circumstances to persons whose rights have not been infringed.
May be applied only by a “court of competent jurisdiction”.
May be applied by any court of tribunal with power to decide questions of law.
Authorizes the award of a wide range of remedies.
Appears to authorize only a holding of invalidity, leaving it to the general law to authorize the particular remedy.
Confers a discretion on the court as to whether any remedy should be awarded.
Appears to confer no discretion on the court, requiring the court to make a holding of invalidity if it concludes that a law or act is inconsistent with the Constitution.
(c) Nullification
o Nullification: striking down (declaring invalid) the statute that is inconsistent with the Constitution.
(d) Temporary validity
o Temporary i nvalidity: striking down the statute that is inconsistent with the Constitution, but temporarily suspending the coming into force of the declaration of invalidity.
Re Manitoba Language Rights (1985) – SCC assumed the power to hold that unconstitutional laws were to be given “temporary force and effect” to allow the Legislature time to enact the required corrective legislation. The court invoked the “rule of law” to keep the unconstitutional laws temporarily in force in order to avoid a vacuum of law in the province.
Schachter v Canada (1992) – a provision of the federal Unemployment Act offended the guarantee of equality in s.15, because the provision allowed more generous child care benefits to adoptive parents than to natural parents.
o LAMER à“The logical remedy is to strike down but suspend the declaration of invalidity to allow the government to determine whether to cancel or extend the benefits”.
o “Where severance or reading remedies were not available, then the court could provide for a temporary suspension of the declaration of invalidity in certain cases which the immediate striking down of the legislation
(1) would pose a danger to the public (as in Swain),
(2) would threaten the rule of law (as in Manitoba Language), or
(3) would result in the deprivation of benefits from deserving persons (as in Schachter)”
o Although in subsequent cases, the guidelines have largely been ignored because a new rationale
o All the pose Schachter cases fail to offer an alternative rationale for postponing the declaration of invalidity.
o The exception was Corbiere, where the concurrent opinion articulated the dialogue rationale for the postponement of the declaration. Where the opinion of L’HEUREUX-DUBE said that the principle of democracy should guide the exercise of the Court’s remedial discretion, and that principle “encourages remedies that allow the democratic process of consultation and dialogue to occur”
(e) Severance
o Severance: holding that only part of the statute is inconsistent with the Constitution, striking down only that part and severing it from the valid remainder.
o Severance occurs in most Charter cases because it is unusual for a Charter breach to taint a statute in its entirety.
o Severance is a doctrine of judicial restraint, because its effect is to minimize the impact of a successful Charter attack on a law: the court’s intrusion into the legislative process goes no further than is necessary to vindicate the Charter right.
Tetreault-Gadoury – SCC held it was a breach of s.15 to restrict unemployment insurance benefits to persons under the age of 65. If the age-65 bar were excised from the Act, the normal rules of entitlement would operate without any limitation as to age. The court severed the age-65 bar from the Act.
(f) Reading in
o Reading in: adding words to a statute that is inconsistent with the Constitution so as to make the statute consistent with the Constitution and valid.
o “Reading in” is a serious intrusion by the courts on the functions of the legislative branch, but the alternative of striking down the unconstitutional legislative scheme is also very intrusive.
Miron v Trudel (1995)
o Facts: Ontario’s Insurance Act, which stipulated the terms of the compulsory automobile insurance policies in the province, contained an unconstitutional provision for an accident benefit that was payable to the “spouse” of an insured person. “Spouse” was restricted to legally married.
o Held: the exclusion of common-law spouses was discrimination on the basis of marital status, which was a denial of s.15.
o Remedy: “read in” the definition of spouse new language that would include the unconstitutionally-excluded class of common-law.
Vriend v Albert (1998) – the omission of sexual orientation from the Act was a denial of the plaintiff’s equality right under s.15. The remedy was to “read into” the statutory list of grounds of prohibited discrimination the words “sexual orientation”.
o The addition of the language to the Act would be consistent with the objective of the Act, could be accomplished with precision, would not greatly add to the cost of administering the Act, and would be a less intrusive remedy than striking down the entire Act.
Issues with “reading in”:
Schachter v Canada (1992)
o Facts/Held: the Act treated adoptive parents more generously than natural parents, which was held to be a denial of equal benefit of the law in violation of s.15.
o Issue: What was the remedy? There was no severable provision excluding natural parents from the child care benefits.
o Possible “reading in” remedy: the defect could be cured by “reading in” the class of natural parents to the statutory provision benefiting adoptive parents.
o “Reading in” rejected: The objective of the Act in making special provision for adoptive parents was not clear, and therefore it could not be assumed that the addition of natural parents to the provision would be consistent with the legislative objective. Furthermore, the reading in or natural parents (who are of course more numerous than adoptive parents) would cause a major increase in the scope and cost of the child care benefits.
o Appropriate remedy held: a declaration of invalidity suspended for a sufficient time to enable Parliament to amend the Act into conformity with the Constitution.
(g) Reading Down
o Reading down: interpreting a statute that could be interpreted as inconsistent with the Constitution so that it is consistent with the Constitution.
o Reading down is the appropriate remedy when a statute will bear two interpretations, one of which would offend the Charter and the other of which would not. In that case, a court will hold the latter interpretation, which is normally the narrower one (hence reading down).
Reading down = extends scope of the statute through interpretation.
Reading in = involves the insertion into a status of words that Parliament never enacted.
(h) Constitutional Exemption
o Constitutional exemption: creating an exemption from a statute that is partly inconsistent with the Constitution so as to exclude from the statute the application that would be inconsistent with the Constitution.
(i) Reconstruction
o There is a point at which a court will recognize that an unconstitutional statute cannot be salvaged except by changes that are too profound, too policy-laden and too controversial to be carried out by a court.
o Singh – There were occasions when “crude surgery” could be performed by the court, “but not plastic or re-constructive surgery”.
Rocket v ... Dental Surgeons (1990) – the prohibition on advertising was a breach of freedom of expression and not saved by s.1.
o MCLACHLIN à it was “for the legislators” to determine what kinds of advertising should be prohibited.
o In Schachter as per LAMER à suggested a dictum that serves as a reminder of the caution that should be exercised by non-elected courts in fashioning new laws which must always the that of the elected legislative bodies
o The general rule prohibiting a court form reconstructing an unconstitutional statute is illustrated in:
Hunter v Southam [1984]
Singh v Minister of Employment and Immigration [1985]
o Disagreement within the SCC about salvage by reconstruction surfaced again in:
o Montreal v 2952-1366 Quebec [2005]
o There is one exception to the general rule that the court will not redraft a law in order to bring the law compliance with the Charter. This is the rare case where the offending law is a rule of the common law:
o In R v Swain [1991] the court held that the rule would be saved by s.1 and that is was not necessary to strike down the existing law. Because the existing law was a rule of the judge-made common law, not statute, the Court had the power to replace the existing rule with a new rule that complied with the Charter. The Court therefore simply declared that a NEW RULE, fashioned by it to comply with the Charter, was now the law.
REMEDY CLAUSE
(a) Section 24(1)
(b) Applicable to Charter Only
o The inclusion of a pre-existing right or freedom in the Charter has the effect of significantly strengthening the right: it becomes part of “the supreme law of Canada” to which inconsistent laws must yield (s.52(1)), it becomes entrenched (s.52(2)), and it becomes enforceable under s.24
(c) Non-exclusive Remedy
o Where s.52(1) is authorized to hold that a law abridges a Charter right as invalid, there is no need to apply s.24(1)
o S.24(1) is needed only where a remedy provided by the general law is not available for some reason, or will not provide satisfactory redress.
o In principle, there is no reason why both remedies should NOT be available in the same proceeding in the rare case where both remedies are needed to provide full relieve to the claimant
o R v Demers [2004] – where the court suspended the declaration of invalidity for one year to permit Parliament to enact a new law. That was a remedy under s.53(1). But the court also added a second remedy under s.24(1) where the court that, in the event of Parliament not acting within a year ...
(d) Standing
o Standing to apply for a remedy under s.24(1) is granted to “anyone” whose Charter rights “have been infringed or denied”.
i.e. an accused could not complain about an unreasonable search of his girlfriend’s apartment, even though the search yielded evidence (a cache of drugs) that was relied upon by the Crown as part of its case against the accused. Only the tenant of the apartment could pursue a remedy under s.24.
o A corporation CANNOT obtain a remedy under s.24(1) for a denial of freedom of religion, because a corporation cannot hold a religious belief.
o But the rare case of:
o R v Big M Drug Mart [1985] – SCC held that the fact that the corporation had no standing under s.24(1) to challenge the law was irrelevant. The challenge was based on the supremacy clause of s.52(1)
o Example of the general law being more generous in standing requirements than s.24(1):
Minister of Justice v Borowski (1981) – SCC granted standing to an anti-abortionist to bring an action for a declaration (general law, not Charter) that the Criminal Code’s abortion provisions were unconstitutional. Those provisions could never actually be applied to the applicant, who was neither a doctor nor a woman, but he was granted standing nevertheless.
o This illustrates that the availability of a declaration of invalidity under the general law is governed by more generous standing requirements than are the remedies authorized by s.24(1).
(e) Apprehended infringements
o s.24(1) will not authorize an application in respect of a merely apprehended future infringement.
i.e no one could bring a s.24(1) application after nothing more than an announcement of a new police interrogation procedure, even if the announced procedure was going to infringe the Charter.
o HOWEVER, the imminent threat of a Charter violation will satisfy s.24(1) (see R v Demers [2004])
(f) Court of competent jurisdiction
o s.24(1)’s remedies may be granted only by a “court of competent jurisdiction”.
o So, is a court to which a s.24(1) application has been made, confided to remedies within it usual jurisdiction? NO! A court CANNOT grant a remedy under s.24(1) unless it possesses jurisdiction, independently of the Charter, to grant a remedy
o s.52(1) is not restricted to a court of competent jurisdiction, but is possessed by any court or tribunal with the power to decide questions of law.
o A superior court = is always a court of competent jurisdiction
o A trial court = is a court of competent jurisdiction
o The SCC = is NOT a court of competent jurisdiction
o An administrative tribunal = is a court of competent jurisdiction
Weber v Ontario Hydro (1995)
o An administrative tribunal is a court of competent jurisdiction if its constituent statute gives it power over:
(1) The parties to the dispute
(2) The subject matter of the dispute
(3) The Charter remedy that is sought.
o SCC Held: a labour arbitrator was a court of competent jurisdiction which could grant a declaration and damages under s.24(1).
Applied Weber criteria:
Mooring v Canada (1996)
o Facts: applicant argued that the National Parole Board was a court of competent jurisdiction, and thus should have excluded evidence denying him parole since it was obtained in breach of the Charter.
o SCC Held: The board had power over (1) power parties (2) the subject matter of the dispute, however the Board did not have the power to grant the remedy sought.
o Thus, the Board was not a court of competent jurisdiction and had no power to award the remedy sought (excluding the evidence). Since the Board’s constituent statute required the Board to take into account “all available information that is relevant to a case”, the evidence was admissible.
o HOGG à “I prefer to read s.24(!) as a sufficient source of a court’s remedial power”
o But despite HOGG, the SCC has explicitly decided that an inferior court is a court of competent jurisdiction to grand a Charter remedy only if it has the power independently of the Charter to grant a remedy.
o R v 974649 [2001] –where the court held that the remedial power had to be derived from a source other than s.24 of the Charter, which in the case of a statutory court, meant “its enabling legislation”. But the court said that a remedial power may be implied as well as express, therefore, the provincial offences court was a court of competent jurisdiction with the power to make the award of costs against the Crown.
(g) Range of Remedies
o Subject to the important qualification that a remedy must be appropriate and just in all circumstances of the case, there is no limit to the remedies that may be ordered under s.24(1). They include “defensive” remedies, where the court nullifies or stops some law or act.
o The range of remedies available under s.24(1) also include “affirmative” remedies
o The award of damages is sometimes an appropriate and just remedy for a breach of Charter
o The award of costs is sometimes appropriate and just remedy for those Charter breaches that case inconvenience of delay to a litigant
o Selecting from such a broad range of remedies under s.24(1) presents the courts with a difficult and value-laden task.
o It has been suggested that the court’s discretion should be governed by 3 factors:
(1) The redress of the wrong suffered by the applicant
(2) The encouragement of future compliance with the Constitution
(3) The avoidance of unnecessary interference with the exercise of governmental power
(4) The ability of the court to administer the remedy awarded
o The 4th was added by L’HEURAUX-DUBE
(h) Supervision of court order
Doucet-Boudreau v Nova Scotia (2003)
o Facts: a superior-court judge in Nova Scotia gave an unusual order: “the court shall retain jurisdiction to hear reports from the government respecting the government’s compliance with the order”.
o Issues: could a judge retain jurisdiction to supervise compliance with a remedial order under s.24(1).
o SCC Held: Yes. Iacobucci and Arbour JJ (majority) pointed out that the Charter was supposed to receive a large and liberal construction, and this applied to the remedial power of s.24(1).
o Dissent: once the order to build the schools was made, the judge had fully discharged his duty, and it became the function of the executive to carry out the orders.
o HOGG à agrees with the minority. Supervision orders are remedies of last resort. Canada has had no history of governmental defiance of the constitution, and, until it does, there is no need for judicial supervision orders.
o Supervision orders are remedies of last resort.
o Canada has NO history of governmental defiance of the constitution, and, until it does, there if no need for judicial supervision orders
o However, in 2009, A judicial supervision order was made by the Federal Court in:
Abdelrazik v Canada [2009]
o Facts: a Canadian citizen, who visited Sudan (where he was born) was arrested without charge, imprisoned for several years and tortured. When released, his Canadian passport had expired, and efforts to obtain a new one, even a temporary one, to get back to Montreal where his family waited for him, was difficult.
o Issue: applicant brought an action for a declaration that his right to enter Canada under s.6(1) of Charter had been violated and for an appropriate and just remedy for the violation under s.24(1).
o Federal Court: found that the Canadian government had been complicit in the applicant’s arrest and imprisonment. The Canadian embassy in Sudan gave him assurances to aid and comfort, were actually blocking his return to Canada. Thus, the court ordered that an emergency passport be issued to enable the applicant to return to Canada.
o But based on Canadian government’s past history of bad faith in dealing with the applicant, the court also ordered that the applicant be brought before the Court after his return for the purpose of satisfying the Court that he had in fact returned home to Canada. And if this did not happen in a timely fashion, the court reserved the right “to take further orders as may be required to safely return Mr. A to Canada.”
(i) Appeals
o S.24(1) does NOT authorize an appeal
o The existence of a right to appeal will depend upon the rules f the court to which the s.24(1) application was made.
o Where there is no existing right of appeal, as will often be the case in criminal proceedings before the trial is over, there will be no appeal from the Charter ruling by the court of competing jurisdiction
ADMINISTATIVE TRIBUNALS
(a) With power to decide questions of law
o Can administrative tribunals decide Charter issues? YES – ONLY UNDER s.52(1), not s.24(1)
Douglas College (1990) – an arbitration board, which had been appointed by the parties under a collective agreement, but which was empowered by statute to decide questions of law, had the power to determine the constitutionality of a mandatory retirement provision in the collective agreement.
Cuddy Chicks v Ontario [1991] – a labour relations board, which had been created and empowered by statute to decide questions of law, had the power to determine the constitutionality of a provision in the empowering statute that denied collective bargaining rights to agricultural workers.
o In both these cases, s.24 was irrelevant, because the applicants were not seeking any remedy for breach of the Charter, not even a declaration of invalidity. The applicant was seeking a remedy that the tribunal was empowered to grand in the normal course of its jurisdiction.
o Thus, in Dougklas College, the professors who had been mandatorily retired were entitled to be reinstated only if the mandatory retirement provision was invalid; and
o In Cuddy Chicks, the union that had organized the agricultural workers was entitled to certification only if the agricultural workers exclusion was invalid.
o But the applicants did not look to s.24 for any remedy. Once s.52(1) had invalidated the apparently applicable law, the exercise of the tribunal’s ordinary statutory jurisdiction over the parties, the subject matter and the remedy would give to the applicants all that they asked for.
o In both these cases, the tribunals’ empowering statues expressly granted to the tribunals, the power to decide questions of law.
o But on 2 subsequent decisions, the SCC held that the absence of an express power to decide questions of law precluded an administrative tribunal from deciding Charter issues.
Nova Scotia v Martin (2003) AND Paul v BC (2003)
o SCC Held: the Tribunal had power to determine questions of law and therefore was presumed to have the power to determine the constitutional validity of any potential applicable law. SCC held that the power to decide questions of law may be implied as well as express
(b) Without Power to Decide Questions of Law
o Administrative tribunals that lack the power to decide questions of law also lack the power to refuse to apply laws on the ground of unconstitutionality.
o SCC held that the power to decide questions of law may be implied as well as express. This means that most administrative tribunals with adjudicative functions will possess the power to decide questions of law.
(c) Preliminary inquiry judge
o PROBALY OVERRULED:
R v Seaboyer (1991) – a preliminary inquiry had no jurisdiction under s.52(1) to determine the constitutionality of a rape-shield law which purported to limit the accused’s right to cross-examine the victim of a sexual assault.
o The decision in Seaboyer predates Martin and Paul, and is inconsistent with those decisions.
o Clearly, the preliminary inquiry judge has an implied power to decide questions of law, since he or she has to rule on the validity of the charge and the admissibility of evidence presented at the inquiry.
SCRUTINY BY MINISTER OF JUSTICE
LEGISLATIVE ENFORCEMENT