Con Law - NCA Summary - Hogg

1 Part I: Basic Concepts 1. Sources and Nature of the Constitution Hogg, chapter 1, “Sources” Reference re Secession of Quebec, [1998] 2 S.C.R. 217 1. Sources and Nature of the Constitution Hogg, chapter 1, “Sources” Definition

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Constitutional law is the law prescribing the exercise of power by the organs of a State. It explains which organs can exercise legislative powers (make new laws), executive power (implement new laws) and judicial laws (adjudicating disputes) and what those limitations are. Concerns- Allocation of government powers (legislative, executive, judicial) among central and regional authorities is its basic concern. The protection of civil liberties is also its concern. A constitution has been described as a “mirror reflecting the national soul”. “Constitutionalism”-

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A word used to convey that idea that government is ruled by law. The word “rule of law” is used to convey the same idea. This describes a society in which government officials must act in accordance with the law. Judicial independence is needed. The rule of law applies to Parliament and Legislatures of the Province. Laws in breach of the constitution may be challenged in court. Constitutional Act 1867

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In Canada there is no single constitutional document like the US. The British North American Act 1867(changed in 82’ to Constitutional Act 1867) is similar. BNA created a new Dominion of Canada by uniting three colonies of British North America and by providing the frame work for the admission of all other British North American colonies.  The BNA act established the rules of federalism but did not break from its colonial past. Missing features of this act: No amending clause in this act & s9 vests authority over Canada by the Queen’s representative the Governor General but the GG’s office is no where created in the Act.  No mention or system of responsible government ( the prime minster, the cabinet)  It did not write the Supreme Court into the act although s 101 gave authority to create it.  Didn’t create a bill of rights but relied on British common law. Constitutional Act 1982  

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3 Important repairs were made in 1982. 1) They were a domestic amending formula was adopted Charter of Rights was adopted. Still very hard to comprehend

2) the authority over Canada of the UK Parliament was terminated & 3) the

Canada Act 1982-a short statue of the UK Parliament which terminated the authority over Canada. The Constitutional Act 1982 -does 2 things which are intended to effect some modernization and rationalization of Canada’s constitutional law. 1) the name of the BNA act is changed to the Constitutional Act 1867. 2) for the first time a defining of the phrase “Constitution of Canada’

The Constitution of Canada

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s52 ( 2) The Constitution of Canada includes: (note: definition of the Constitution of Canada) a) The Canada Act 1982, including this Act; b) the Acts and orders referred to in the schedule; and c) any amendments to any Act or order referred to in paragraph (a) or (b) Definition- It includes 3 categories of instruments. a) The Canada Act 1982 (includes the Constitution Act 1982 Schedule B) b) the Acts- is a list of 30 Acts and orders in the schedule to the Constitutional Act 1982. (includes The Constitution Act 1867, its amendments, the orders in council and statues admitting or creating new provinces and boundaries, and the statue of Westminster. c) comprises new amendments which may in the fute be made to any of the instruments in the first two categories.

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The Charter of Rights is part of the Constitution of Canada because it is Part 1 of the CA act 1982. Health Services Bargaining (2007) where court held that that a statue was invalid as a breach of freedom of association. This makes collective agreement negotiations between a union and an employer now superior to a statue.

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“Includes” in s 52(2) indicates that the word is not exhaustive. This was supported by SCC in the New Brunswick Broadcasting Co. v Nova Scotia (1993). The held the unwritten doctrine parliamentary privilege should be included in the s52(2) definition even though no mention of it. The court’s decision means the definition can be expanded. Hogg believes that it is best to leave the courts decisions to unwritten doctrines and written doctrines as exhaustive. The new schedule omits the pre 1867 instruments which governed Ont and Qbe and The Royal Proclamation of 1763, the Quebec Act 1774, the Constitutional Act of 1791 and the Union Act of 1840.

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The Supremacy Clause is 52(1)-This makes it the supreme law of the country.

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The Entrenchment clause- 52(3)- This entrenched the Constitutions Act 1982 and makes it only amendable by the proscribed procedure. Imperial statues- Hogg 1.5

“Parliamentary Privileges”

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The federal Houses of Parliament and the provincial legislative assemblies posses a set of powers and privileges that are “necessary to their capacity to function as legislative bodies.”This was supported by the SCC in New Brunswick Broadcasting Co. v Nova Scotia (1993) where “strangers” were excluded from the Nova Scotia legislative assembly.

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Parliamentary Privileges- regarded as a branch of the common law as it is not contained in any statute or other written instrument and it is the courts who determine its existence and extent.

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2 peculiar characteristics of Parliamentary Privileges stated by the SCC in New Brunswick Broadcasting Co. v Nova Scotia (1993) 1) It is part of the Constitutions of Canada 2) the powers authorized by parliamentary privilege are not subject to the Charter Rights. Is different from royal prerogatives and other common law powers of government. No difference between in constitutional status between legislative privileged and inherit privileged-both are exempt from the Charter.

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Parliamentary Privileges- also includes freedom of speech in debate, including from legal proceedings for things said in debates. It also includes right of members of parliament or legislative assemblies not to testify in court proceedings while Parliament or the Legislature is in Session.

“Prerogative”

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The royal prerogative consists of the powers and privileges accorded by the common law to the Crown. The prerogative is a branch of the common law, because it is the decision of the courts which have determined its existence and extent. Case of Proclamations (1611). They are powers and privileges that are unique to the Crown.

Conventions Definition- Conventions are rules of the constitution that are not enforced by the law courts. Because they are not enforced by the law courts, they are best regarded as non-legal rules, but because they regulate the working of the constitution, they are important. They prescribe the way in which legal powers shall be exercised.

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A) Convention in Courts – although not enforced by courts, the existence of a convention has occasionally been recognized by the courts. ie- Liverside v Anderson [1942] conventions of responsible government which make a minster accountable to Parliament as a consideration in deciding to give a broad rather than narrow interpretation to a statue conferring power on a Minster. Patriation Reference (1981)- SCC was asked whether there was a convention requiring that the consent of the provinces be obtained before the federal government requested the United Kingdom to enact an amendment to the Consti of Canada. That would affect the provinces. The court was also asked whether there was a legal requirement for provincial consent.

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B) Convention in Usage- A convention is a rule. A “usage” is not a rule, but merely a governmental practice which is ordinarily followed, although it is not required as obligatory. ie of Usage- the practice of appointing to the position of Chief Justice of Canada the person who is the senior puisne judge of the SCC at the time of the vacancy. This practice has been departed with the appointment of McLachlin in 2000. A “usage” may develop into a convention. The process of evolution from usage to convention may be called a “custom.” A convention is as unenforceable as a usage. There is a strong moral obligation to follow a convention than a usage and departure from a convention will be criticised more. Patriation Reference ( 1981)- Hogg 1.10(c) the court found the convention required a “substantial degree” of provincial consent but it was not necessary to decide exactly what the requisite degree is.

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C) Convention in Agreement- A convention can be established by all relevant officials agreeing to adopt a certain rule of constitutional conduct, then that rule may immediately come to be regarded as obligatory and are usually written down by the officials in precise and authoritative terms. (ie-1930 when the Prime Minster of the self governing dominions of the Commonwealth agreed that the king ( or Queen) would appoint the Governor General of a dominion solely on the advice of the government of the dominion.)

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D) Convention and Law –A convention could be transformed into law by being enacted as a statue. A convention would also be transformed into law if it is enforced by the courts. If a court did enforce a convention (and admittedly no court has ever done so), the convention would be transformed into a legal rule. Why do people obey them if not law? The breach of a convention would result in serious political repercussions and eventual changes in law. Conventions regulate the way in which legal powers shall be exercised and bring outdated legal powers into conformity with current notions of government. Their purpose is to “is to ensure that legal framework of the values or principles of the period” Re: Resolution to Amend the Constitution [1981] 1 SCR

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E) Convention and Policy- Public School Boards Assn v Alta. [2000} & English Catholic Teachers Case v Ont [2001]- public school supported argued that provincial educational statues violated a constitutional convention. Held- in both cases that no convention restricted the policy or substance of what could be enacted by the provincial Legislature in exercise in its power to make laws in relation to education. Conventions affected only the structure of government power, not the polices to which government power was addressed.

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Reference re Secession of Quebec, [1998] 2 S.C.R. 217 Constitutionality of unilateral separation of Quebec Held- Quebec cannot secede

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3 from Canada unilaterally; however, a clear vote to secede in a referendum should lead to negotiations between Quebec and the rest of Canada for secession.

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Hogg 1.8- The SCC invoked unwritten principles of democracy, federalism, constitutionalism and the protection of minorities to hold that, if a province were to decide in a referendum that it wanted to succeed from Canada, the federal government and other provinces would come under a legal duty to enter into negotiations to accomplish the secessions. This illustrates the active and creative role that the modern Supreme Court has carved out for itself.

Main Conventions I. II.

the governor general only acts on the advice of the Privy Council this Privy Council is not the full Council described in s13 of the Constitution Act 1867 but rather a smaller subset, the Cabinet

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the cabinet chosen by the Prime Minister, and the number of ministers is up to him/her

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the primes minster, although no where mentioned in the Constitution Act 1867, is the head of government

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the prime minster and his/her cabinet must have the support of a majority of members in the house of commons the prime minster and his/her cabinet must have seats in the House of Commons or Senate House of Commons support for Prime Minsters and cabinets is rallied by means of Political parties and A failure to command and support of a majority of members in the House of Commons results in the government stepping down and usually the calling of a general election.

Other Conventions I. II.

The exercise of prerogative powers by the crown The operation of Parliament and the legislatures generally, including political parties and at the national level, the relationship between the elected house of Commons and the appointed Senate

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The operation of the federal and provincial cabinets, minsters and civil services and the relationship among them

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Federalism generally, aside from the formal divisions or powers, including reservation and disallowance of federal and Provincial acts and the role the federally appointed lieutenant governor in provincial matters

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The role of judges and courts in the governmental process and the independence of judges and courts interference by the executive and legislative branches and

2. Amending Procedures Constitution Act, 1982, Part V, ss.38-49 Hogg, chapter 4, “Amendment”, and chapter 5.7, “Secession” Reference re Secession of Quebec, [1998] 2 S.C.R. 217 Part V of the Constitution Act, 1982 Hogg 4.2(a) Part V of the Consti Act 1982 is headed “Procedure for Amending Constitution of Canada.” It provides 5 different amending procedures. 1. A general amending procedure (s38) for amendments not otherwise provided for(as well as for amendments listed in s42)requiring the assents of the federal Parliament and 2/3 of the provinces representing 50 per cent of the population; 2. A Unanimity procedure (s41), for five defined kinds of amendments, requiring the assents of the federal Parliament and all of the provinces, 3. A some but not all provinces procedure(s43), for amendment of provisions and only those provinces affected;

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The federal Parliament alone (s44) has power to amend provisions relating to the federal executive and House of Parliament ;and Each Provincial Legislature alone (s45) has power to amend “the constitution of the province”.

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4 Amending Procedures : Found in Pt V Const Act 1982. s38 “General”; s41 “Unanimity”; s43: “Some but not All (provs)”; these must conform to the Charter. Also, s44 Amendments in rel to Houses of Parlt and Exec; s45 Provl Constitutional Amendments s38 “General” aka “7/50 Rule” – requires resolutions to be passed by: Senate + HofC + 7 of the 10 Provinces which have in total at least 50% of the population. Use for: residual, when other procedures do not apply as well as those listed in s42. NB no single prov has constitutionally entrenched veto -39(1): must wait 1 year to proclaim (unless all have consented/dissented) (allows time to consider) -39(2): expires in 3 years if required consent not achieved Opting out: 38(3) applies to “any amendt that derogates from the legislative powers, proprietary rights or any other rights or privileges of the legislature or government of a province”

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prov can pass resolution of dissent = amendt will not take effect in that province

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Must be done prior to proclamation

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38(4): resolution of dissent can be revoked at any time, but 46(2): resolution of assent cannot be revoked after proclamation

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s40 compensates provs for opting out, for any transfer of Provl legislative powers to Fedl govt (in relation to education or cultural matters only).

Regional Veto Statute: no amendt can be authorized unless it has first been considered by a majority of the provinces that includes: Ont, Que, BC, 2+ Atlantic Provs rep min 50% pop, 2+ Prairie Provs rep min 50% pop. Applies to amendments that: do not allow for opting out, and must otherwise follow the general 7/50 procedure. Does not apply to : s41(unanimity) or s43 (some but not all) amendments.

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S41 “Unanimity Rule” – used for matters of national significance which should not be altered over the objection of even one province. NB s39 time limits do not apply.

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S43 “Some but not all” Provision – used for language usage within a province, altering provl bopundaries. Note: protection of minorities is afforded by the fact that it also requires resolutions of the Senate and HofC (ie Fedl level approval) as well as the affected provinces Hogan v Newfdlnd (2000).

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s44. The Unilateral Federal Formula and covers amendments to the “Constitution of Canada” in relation to the federal executive, or Senate and the House of Commons- provided that the amendments do not fall within the category of amendments caught by the General and Unanimity Formula.

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S45 Provl Legisl Alone – laws amending constitution of prov (ie those that bear “on the operation of an organ of govt of the province” – SCC). Note does not include: Constl guarantee of language rights (per SCC in AG Quebec v Blaikie, now explicit in s45). Also: OPSEU v Ontario [1987]: Profound constitl upheaval by the introduction of political institutions foreign to and incompatible with the Canadian System.

Future Amendments

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French Canadian Nationalism: 1982 amendments reduced power of Que Natl Assembly, Que was only prov that did not agree with them. Meech Lake Accord 1987 – to appease Que, but fell short of ratification by 2 provs. Charlottetown Accord 1992 rejected in National Referendum. Quebec then held 2nd ref 1995. Defeated by only 49.4% – 50.6%.

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Western Regionalism: Bulk of Canada’s pop is in Que + On. So Fedl policies favour manuf industry and consumers of central Can. West relies on prod of wood, oil, gas, metals. Response: 1. to increase Provl govt power which the West can more easily control and decr Fedl power (per 1982 amendments), and 2. Make central institutions more responsive to regional concerns.

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Aboriginbal Peoples Demands: entrenchment of traditional rights. S35: guarantees existing aboriginal and treaty rights. S37 commits to further discussions. They also seek: entrenchment of explicit right t self govt, and to participate in constl amendmt process where aboriginal rights may be affected.(Charlottetown Accord would have done so but was defeated).

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Entrenchment of Charter Rights: note override provision was inserted to obtain agreement. Note also Quebec never agreed with the Charter yet still legally binding on the province.

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Division of Powers: Reducing Fedl and incr Provl power easiest way to address French Candian and Western Canadian grievances. 1982 amendmts incr provl power over natural resources. On the other hand: Enlargement of certain Fedl powers may facilitate effective national

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5 economic policies, Fedl power is lacking or only avail in emergencies with respect to: foreign ownership, securities regulation, wage and price controls. Another issue is extent to which Provs differ in size and wealth. Changes in division of powers very diffic to achieve.

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Central Institutions: “Intrastate Federalism” = constl change though better representation so Fedl power can be increased. “Interstate Federalism”= decentralisation of powers. Suggestion: have triple E Senate (ie equal no. of reps from each prov). Within SCC would require Provl role in appointing judges.

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Criticism of amending procedures: Problematic to retain agreement throughout 1 yr ratification period. Proposals lapse in3 year period, or are defeated by changes in govt during that time – too long. Agreement bw Ministers turns into bargaining rather than rue assessment on merits of proposal..

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Secession: It has not been stated by the judiciary or by statute but no provision in the Const allows for secession –unilateral secession not possible. Re Secession of Quebec [1998]: Court asked whether Quebec could secede unilaterally. Secession cannot be undertaken in defiance of terms of the Constitution. So secession would require const’l amendmt in accordance with its procedures (but did not specify which one would apply). Note SCC also stated: a clear majority on a clear question of law put to referendum in Quebec, would confer legitimacy on demands for secession and give rise to an obligation on all parties to Confederation to negotiate the required constitl changes. SCC also pointed out that the political ramifications for failure to negotiate in good faith would include the defaulting govt’s legitimacy in the eyes of the international community would be undermined. ...  Principle of Effectiveness: If seceding govt achieved effective control of a territory and recognition by international commty the secession although unconstitutional would have to be recognized eventually as a reality by Canada’s own Constl Law.

Which amending procedure would apply to secession? Unclear. But not: 43, 44, o 45. Perhaps 38: covers those amendments not covered by the other procedures. Or 41: most onerous.

3. Federalism and Judicial Review Constitution Act, 1867, ss.91-95 Constitution Act, 1982, s.52 Hogg, chapter 5, “Federalism” Distribution of Government Powers Federalism- Hogg 5.1  Canada is a federal state. ( US and Australia as well)

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Unitary vs. Federal state- In a federal governmental power is distributed between a central power (or national or federal authority) and several regional (Provincial or state) authorities so that every individual in the state is subject to the laws of two authorities-central and regional. A unitary state government power is vested in one national authority. There are municipal and or local governments with law making over their territories. These powers given to municipal governments are granted by a national authority and can be taken away, altered or controlled at any time by the national legislature. (Montreal-to Quebec).

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Powers tend to shift back and forth over time from national power to regional powers. metaphor often described as “higher level” of power ( federal) with “coordinate” level of power. Does not mean they are legally subordinate. Whether a state is still truly “federal” depends on whether there is still “an area of guaranteed autonomy for each unit of the system”

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Federal Principle defined- KC Where defined it as “the method of dividing powers so that the general and regional governments are each, within a sphere co-ordinate and independent” This has been criticized . Other writers define it emphasizing “interdependence” Differences between Unitary-federal- between and government practices between federal states(like Canada) and “unitary” states ( UK, New Zealand) Distinctive issues concerning the distribution of power, the distribution of executive power and the administration of justice that have to be resolved in federal states but non-existent in the unitary state.

Confederation Hogg 5.1 (b)

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6 Canada is often described as a “confederation” and the process of union which culminated in 1867 is often described as “confederation”  Technically it means that it means that the government is the delegate of the states or provinces; its powers are delegated to it by the states or provinces, who retain the right to resume to the delegated powers if they wish. Legislative Union 

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the closest possible union is a “legislative union.”- in which united states or provinces form a new unitary state which incorporates the former units and subjects them to the authority of a single central legislature.

Special Status  special status is the term which has been applied to proposals for constitutional change under which one province ( most likely Quebec) would possess larger powers than the other provinces.  Quebec has opted out of some national shared cost programs but these arrangements do not give them any special constitutional powers.  In 1995 House of Commons- passes a resolution declaring that the house recognize Quebec as a “distinct society” and would be guided “by this reality.” Dominion and Provinces  need to be able to describe three things in a federal state 1. the regional authorities ( this is rarely a problem-regions are known as provinces) 2. the central authorities (It’s difficult to find a description for the central authority-the use of the word Dominion has issues and the use of the word Canada causes ambiguities. 3. the nation as a whole Regions  The term “region” has no precise meaning. Reasons for Federalism  the genesis of the federal system in Canada was political compromise between proponents of unity and proponents of diversity.  advantages of efficiency and accountability in dividing powers of government for countries with large land mass.

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provinces or states are more homogeneous then the nation as a whole will sometime adopt policies that are too innovative or radical to be accepted . This way new legislative programs can be tested. If the program does not work, then the whole nation as a whole has not been harmed. another advantage of federalism is that is that the system operates to preclude an excessive concentration of power and thus as a check against tyranny.

Federalism in Canada a) The Terms of the Constitution - Indications that the framers planned a strong central government. The Act gives the provinces only enumerated powers to make laws giving the residue of power to the federal Parliament. Federal Differences US and Australia  the provinces were actually made subordinate to the centre, in violation to the principle that a federal state regions should be coordinate with the center. 1) s90 allows the federal government to disallow provincial statues. 2) by s58 the federal government was given the power to appoint the Lt Governor of each province 3) by s96 the federal government was given the power to appoint judges of the superior, district and county courts of each province. 4) by s93 the federal government was given the power to determine appeals from provincial decisions affecting minority educational rights and was able to enforce a decision on appeal with remedial laws. 5) by s91(29) and 92(10)(c) the federal parliament was given the power unilaterally to bring local works within exclusive federal legislative jurisdiction simply by declaring them to be “for the general advantage of Canada” Judicial interpretation of the distribution of powers  two figures dominated the course of decisions in Canadian constitutional cases Lord Watson 1880-1899 and Lord Haldane 1911-1928.  They both believed strongly in provincial rights and established precedents that elevate the provinces to coordinate status with the Dominion.  they gave a narrow interpretation to the principle federal powers ( the residual power and the trade and commerce power and wide interpretation to the provincial powers Federal-provincial financial arrangements  since the second world war there has been a substantial shift in power back to the provinces  the present federal provincial financial arrangements give the Canadian provinces more financial autonomy than enjoyed in the US or Australia. Disallowance  the federal power to disallow provincial statues was frequent in the early years of confederation.

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this power has not been exercised since 1943

Appointment of Lt Governors  federal power to appoint a Lt Govnor is another breach of the federal principle.  regularly exercised by federal government  once appoint made then the Lt Govnor is in no sense the agent of the federal government.  he/she is obliged by conventions of responsible government to act  The Lt governor does have power under s90 –to withhold the royal assent from a bill enacted by the provincial legislative assembly Appointment of Judges Hogg 5.3(g)

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s96 of the Constitution Act 1867- gives the federal power to appoint the judges of the higher provincial courts is exercised by federal cabinets whenever a superior, district or county court judgeship has to be filled.

Educational Appeals

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s93 of the Constitution Act 1867- gives the federal power to enact remedial laws to correct provincial incursions on minority educational rights.

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It has never been exercised and the practice has become obsolete.

Declaratory Power

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s92(10)(c) Parliament’s power to bring local work within federal jurisdiction by declaring it to be “for the general advantage of Canada” used for railways and sparingly in recent years. Was going to be amended in Charlottetown Accord but since it was defeated it remains unilateral power.

Supremacy of the Constitution Hogg 5.4

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s52(1) Constitution Act 1982 expressly affirms the supremacy over all other laws of the Constitution of Canada. The Constitution must be “supreme” or binding on and unalterable by, each of the central and regional authorities. If either could change it unilaterally, the supreme authority would lie with in the authority having the power to change the constitution. entrenched- means that the constitution can be amended but it requires a more difficult process

Role of the Courts

Hogg 5.5

Development of Judicial Review

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The constitution of Canada does not expressly provide the machinery for settling disputes about the distribution of legislative power and there is controversy as to what the framers intended.

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s52(1) is the current basis of judicial review in Canada.

Limitations of Judicial Review  Canada, where legislative powers are distributed between a central legislative power and regional legislative bodiesFirst function of JR is to enforce the disruption of powers rules (the rules of federalism)  The courts often have to determine whether a particular statue comes within the powers the powers conferred by the constitution on the legislative body enacted the statue- if the statue is judicially determined to be outside the powers conferred upon an enacting body, then the statue is ultra vires and invalid.

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Second function-of judicial review is to enforce the Charter restrictions and the other non federal restrictions. Courts have to decide if a statue violates a constitutional prohibition- ie by justifiably abridging freedom of expression-if it does, then it is ultra vires.

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Policy making- judges not suited for this, their mandate is to make decisions differs from that of other public officials in that judges are not accountable to any electorate or to any government for their decisions. judges have no power to initiate inquires or research, no staff of investigative researchers and no power to enact a law in substitution for one declared invalid. often judges may have to make decisions which depend on “a judgement or intuition more subtle than any article major premise. JR permits or requires non elected judges to make a decision of great political significance.

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Alternatives to Judicial Review Hogg 5.5(c)  proposals to make tribunals of lawyers and non lawyers so that different interests could be represented

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another proposal is to divide the SCC into specialized divisions-a common law division, a civil law division, and a constitutionally law division-each division designed to ensure maximum expertise.

 there is much to be said in favour of the present system of judicial review by a court of general appellant jurisdiction The Power to Succeed Hogg 5.7 7

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no reason why in principle why a federal government should not give a power of succession to its provinces. The Succession Reference 1998 was a reference by the federal government to the Supreme Court of Canada, in which the Court was asked whether Quebec could secede unilaterally from Canada. 3 Questions put to the Court: 1) What was the position of the under the Consti. of Canada to which the court replied that unilateral secession was not permitted? 2) What was the position under international law, to which the court gave the same answer? 3) Asked-what was the position if the Constitution of Canada and international law were in conflict-they did not have an answer?

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court coined the term “effectivity”- when a defacto succession takes place without the required agreement or the required amendment. Such a succession would be unconstitutional. In this case, the constitutional law of Canada would eventually have to recognize this reality.

Clarity Act ( created after Succession Reference) Hogg 5.7(a) – so that the political actors, not the courts to determine whether a referendum had created a clear majority on a clear question.

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s1 Clarity Act –if a province proposes a referendum on succession , the HoC is to consider the question and determine whether the question is “clear”. Whether clear depends on , HOC depends on “the question would result in a clear result in clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independent state. Act states question is unclear if “mere focus to negotiate” or envisages economic /political arrangement with Canada that obscures a direct expression of the will of the population of that province...

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s 2 – if question is clear, the Hof C has to determine if the majority is “clear”. The act does not define “clear”. s3 – the CA recognizes that under the Constitution of Canada, there is no right to unilateral succession, and an amendment would be needed to succeeds from Canada.

Succession Act and Clarity act – make it clear that a Constitutional amendment is needed for a succession of a province and set useful rules for consulting Quebec and for the initiation of negotiations leading to the required constitutional amendment However, - they acknowledge that Canada is divisible, and a clearly expressed will to succeed would have to be respected by the rest of the country. Amendment procedures- not clear which of the five amendment procedures would be the best type. A province cannot rely on s45 amendment procedure. A succession amendment could not be by the federal government alone under s44 or by the “some-but-not all provinces’ of s43. succession amending procedure- Question is could it be done under the general amending procedures of s38 (7-50 formula) or whether it can be done by the unanimity procedure of s41. unilateral succession would be illegal and could be considered a revolution. Questions of legitimacy would arise and questions of continuation or existence of a legal system would apply to. Co-operative federalism- the essence of this is its a network of relationships between the executives of the central and regional governments. Demands of interdependence of governmental policies, equalization of regional disparities and constitutional adaptation produce co-operative federalism Eliza’s- The powers of the Provl Legislatures are not granted by Parlt and cannot be taken, altered, or controlled by Parlt.

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Provs not legally subordinate to Fedl Govt but if conflict bw Fedl law and Provl law, Fedl Law prevails.

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With the growth of Central Power the question whether a state is truly still “federal” depends upon: whether there is still “an area of guaranteed autonomy for each unit of the system”.

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The “Federal Principle”: Dividing powers so that the general and regional govts are each within a sphere coordinate and independent.

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Senate: equally drawn from regions: Quebec, Ontario, Western Provinces, Maritimes 24 Senators each Newfld  6 Senators Yukon, NW Territories, Nunavut  1 Senator each

SCC : also by region – 3 of the 9 judges from Quebec, 3 from Ontario, 2 from the four Western provs and 1 from the four Atlantic provs Regional Veto statue- incorporates regions into the 7-50 formula ( ordinary statue not a constitutional amendment). It prevents an minister of the crown introducing any resolution authorizing An Amendments in the the house of commons without prior consent of the legislatures of: a) Ontario b) Qube c) BC d) 2 or more of the Atlantic provinces( min 50% of the population) e) two or more of the parie provinces with(min 50% of the population) Hogg- the regional veto statue gives indirect vetos to the four most populous provinces to BC, ONT, QUE and BC and this compromises the equality of the provinces envisioned in the 7-50 formula. Subsidiarity- a principle of social organizing where decision affecting individuals should as far as possible be made by the level of government made closest to them.

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9 Hogg- a primary goal of confederation was to preserve considerable autonomy for the four original provinces. As a result , BNA Act 1867 gave provincial legislatures authority over property, common civil rights, common courts, police, municipal bodies, hospitals and education = subsidiarity principle

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Another goal of confederation was to provide collective benefits of economic union and greater financial strength and increase defence. As a reset the BNA act 1867 gave federal Parliament authority over customs and excise, interprovincial and international trade and commerce, banking and currency, all forms of taxation and national defence. All consistent with subsidarity principle.

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(Not consistent with subsidarity principle)- authority over criminal law, penitentiaries, marriage and divorce

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Laws that impact people the most directly are mostly provincial.

Part II: Distribution of Powers 4. Principles of Interpretation Hogg, chapter 15, “Judicial Review on Federal Grounds”

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Priority Federal vs Charter- Question has no practical significance. s52 Consti Act 1982-any law contrary to provision of the “Constitution of Canada” is “of no force effect” Both federal distribution of powers and the Charter are part of the “Constitution of Canada” Hogg believes that logically- federal parliament/provincial legislatures are logically prior to the Charter.

When reviewing the validity of a law –ask: 1. Whether the law is within the law making power of the enacting body? 2. secondly, is whether the law is consistent with the Charter of rights? Hogg -2 arguments why federal/provincial laws are prior to Charter:

1. 2.

Comparing federal/provincial laws with the Charter is supported by s. 32(1) Charter where it uses the phrase “ in respect of all matters within the authority of”. s33- another argument in favour of logical priority of federalism issues over Charter issues is the presences of s33 override. This enables the parliament or a Legislature to over ride most of the provisions in the of Charter by including in a statue a declaration that the statue is to operate notwithstanding the relevant provisions of the Charter. This makes the statue valid despite Charter rights. This applies to both federal and provincial legislatures.

Procedure for JR- procedural and evidentray rules are the same for federal grounds and Charter grounds Reasons for JR- s91 and s92 of the Consti Act 1867 s91- lists kinds of laws that are competent to the federal Parliament s92- lists out laws that are competent to provincial Legislatures. Both sections use terminology giving legislative authority in relation to “matters” coming with ‘classes of subjects”.

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Two steps involved in the process of JR

1. 2.

First step is to identify the matter (pith and substance or “characterization”) of the challenged law; (Charter- one identifies the “purpose” and “effect” of an impugned statue infringes charter right.) second step is to assign the matter to one of the “classes of subjects”.

Step 1 - Characterization

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10 a) matter- identify the most important characteristic of the challenged law. Courts tend to use concepts that will assist in determining to which head of power the “matter” should be allocated. ie banking federal class-s91(15) The difficulty is when statues have more than one feature which comes with in provincial head of power with a federal one. What is the more dominant feature of the law?-the dominant feature is the “pith and substance”. s91& 92 use the phrase “in relation to” so in Bank of Toronto v Lambe (1887)- it was “in relation to “taxation (pith and substance) and merely “affected banking.” The pith and substance doctrine enables one level of government to enact laws with substantial impact on matters outside its jurisdiction.

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Singling out- Alberta Tax Reference is read as prohibiting the provincial legislatures from “singling out” banks or other federal undertakings for special treatment. There are cases where provincial laws have been upheld even though the laws singled out a person or class of persons within federal jurisdiction. Normally , if provincial law of general application which is in relation to a provincial matter may validly affect federal matters. Exception- if the effect of the provincial law would impair the status or essential powers of a federallyincorporated company, or affect a vital part of the federally regulated enterprise, then the provincial law-although valid in the generality of its applications, will not apply to the federally-incorporated company or federally regulated enterprise.

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Double aspect- Although, it may seem inconsistent with the stipulation in ss91 ss92 that each list of classes of subjects assigned “exclusively”- Hodge v The Queen (1883) held” subjects which in one aspect and for one purpose fall within s92 may in another aspect fall within ss91.”This is known as the double aspect doctrine. It acknowledges that some laws have both a federal/provincial “matter”. Can also have double aspect from the same list.-normally irrelevant. Laws prescribing rules of conduct on the roads have a ‘double aspect” and therefore competent to both Parliament and a Legislature.

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Purpose- In R v Big M Drug Mart ( 1985)- The Court acknowledged that if the purpose of the statue had not been religious” but rather the secular goal of enforcing a uniform day of rest from labour” then the Act would have fallen under provincial rather than federal competence. What is the purpose of a statue? A statue ca have a purpose in its function and sometimes a preamble. This is sometimes referred loosely as “intention”. There may be a “mischief which the statute purposes to correct. The legislative history is helpful. Reports of royal commissions, law reform commissions, government policy papers and parliamentary debates are admissible.

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Effect- a court will always consider the effect of the statute when determining the “pith and substance” The court will look at how the law changes the rights and liabilities of those who are affected. Alberta Tax Reference Lord Maugham- the court must take into account any public general knowledge of which the Court would take judicial notice, and may in proper case require to be informed evidence as to what the effect of the legislation will be”. Saumur v Quebec ( 1953)- the judges were influenced by the actual use of the by law. They regarded the facts as to the actual use of the by-law as relevant and admissible on the question of classification.

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efficacy- reviewing judges may pass judgment on the likely efficiency of the statue but leave the wisdom or policy with legislation . Re Firearms Act [2000]- Parliament is the judge of whether a measure is likely to achieve its intended purpose; efficaciousness is not relevant to the Court’s division of powers analysis.

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colourability- the colourability doctrine is invoked when a statue bears the formal trappings of a matter within a jurisdiction but in reality is addressed to a matter outside jurisdiction. Alberta Bank Taxation Reference- although ostensibly designed as a taxation measure, was in reality directed at banking. Re Upper Churchill Water Rights.- The statue made no mention of the power contract or any right outside Newfoundland and thus was “cloaked in the proper constitutional form.” The statue was nevertheless held to be invalid as a colorable attempt to interfere with the power contract. Colourability cases there is a very fine line between adjudication on policy and adjudication on validity. The colourability doctrine applies the maxim that a legislative body cannot do indirectly what it cannot do directly.

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criteria of choice- The choice between competing characteristics of the statue, in order to identify the most important one as matter may be nothing less than a choice between validity or invalidity. The hardest cases the choice is not compelled by either nature of the statue or the prior judicial decisions. The choice is inevitably one of policy. The choice must be guided by a concept of federalism. Ask is this the kind of law that should be made by a province or federal government? Simeon- suggests the 3 values of community, efficiency and democracy as criteria that are helpful on appraisal of the allocation of power in a federal system. Room to argue the weight to each one of the values. Where the case is not clear, a choice supporting the legislation is preferred.

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presumption of constitutionality- The presumption of constitutionality carries 3 legal consequences.

1.

in choosing between competing, plausible characterization of a law, the court should normally choose between competing, plausible characterization of a law Re Firearms Act[2000] 2. where the validity of a law requires a finding of fact ( finding of emergency) the finding of fact need not be proved strictly by the government. It is enough that there be a “rational basis” for the finding. 3. where a law is open to both narrow and wide interpretation and under the wide interpretation the law’s application would extend beyond powers of the enacting legislative body, the court should read down the law so as to confine it those applications that are within the power of the enacting legislative body. These 3 functions have the effect of reducing interference by unelected judges with the affairs of elected legislative. Only “reading down” with exist in Charter cases. Severance- no matter how complex law is, it is usually one legislative plan. The leading feature of that plan or scheme will be the pith and substance. It is possible that only part of the statue is invalid and the balance of it would be valid if it stood alone. Rule- severance is inappropriate when the remaining good part “ is so inextricably bound up with the part declared invalid that what remains cannot independently survive.”A-G Alta v A-G Can [1947] Toronto v York [1938]If two parts can exist independently then it is plausible to regard them as two different laws. There does appear to be a

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11 presumption against severance. Charter- severance is more common in Charter cases. The same test is applied but it is unlikely that the entire statue is struck down on Charter rights. Only one case where entire statue was struck down- R v Big M Drug Mart (1985) Reading Down- this doctrine when possible a statue is interpreted as being within the power of the enacting legislative body. This means that general language of the statue which is literally extending beyond provincial or legislative power will be construed more narrowly so as to keep it within the permissible scope of power. Interjurisdictional Immunity- This does not have a precise meaning. A law that purports to apply to a matter outside the jurisdiction of the enacting legislative body may be attacked in 3 ways 1. the validity of the law or 2. the applicability of the law 3. the operability of the law. First, it could be argued that the law is invalid because the “pith and substance” comes with a class of subjects that is outside the jurisdiction of the enacting body. Alberta Bank taxation Reference (1938) Second, way of attacking is to acknowledge that the law is valid in most of its applications but argue that the law should be interpreted so as not to apply to the matter that is outside the jurisdiction of the enacting body. If this argument succeeds, the law is not held to be invalid, but simply inapplicable to extra-jurisdictional matter. –The technique is “reading down” the law. Third, way of attacking a law that applies outside the matter outside the jurisdiction of the enacting body is to argue that the law is inoperative through the doctrine of paramountcy. The doctrine states that where their is inconsistency between federal and provincial laws the federal law should prevail. Paramountncy render provincial law inoperative to the extent of the inconsistency. Under the second argument (above)– b)Federally-incorporated companies- a valid provincial law may not impair the status or essential powers of a federally incorporated company. John Deere Plow Co v Wharton [1915] (c)-Federally regulated undertakings-undertakings engaged in interprovincial or international transportation or communication , which come under federal jurisdiction under the exception to s92(10) are immune from otherwise valid provincial laws which would have “sterilizing” the undertakings (d)-other federal matters- the doctrine of interjurisdictional immunity also applies outside to fields of transportation and communication. (e)- rationale of interjurisidictional immunity- the pith and substance doctrine , which allows a provincial law to “affect” a federal matter is applied more often the interjurisidcitional immunity. Provincial laws may validly extend to federal subjects unless laws “bear upon the those subjects in what makes them specifically of federal jurisdiction.” The rule which emerged is- Ordon Estate v Grail [1998] if the provincial law would affect the “basic, minimum and unassailable “ core of the federal subject, then the interjurisdictional immunity doctrine stipulated that the provincial law must be restricted in the applications (read down) to exclude the federal subject. Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3 If, the provincial law did not affect the core of the federal subject, the pith and substance doctrine stipulated that the provincial law validity applied to the federal subject. (f) provincial entities- there is no case applying the doctrine of interjurisdictional immunity to federal laws to protect provincially incorporated companies or provincially regulated undertakings. The doctrine should be reciportacted but the weight of the authority seems to be given to a federal head of power. Second Step- Interpretation of the Constitution (A)- relevance- once the pith and substance ( matter) of the challenged law has been identified the second stage of the judicial review is to assign it to one of the “classes of head”. (B)- exclusiveness- each class of subjects are listened in ss91 and ss92 of the Constitution Act 1867. double aspect - Papp v Papp -the pith and substance doctrine occasionally has the same effect. (C)- ancillary doctrine- The Constitution of Canada does not include an ancillary doctrine (like the US or Australia) in the enumerated heads of power of either Federal Parliament or provincial Legislatures. No such power is needed in Canada. The pith and substance doctrine enables a law that is classified as “in relation to”. The “rational connection test” allows each enumerated head of power to embrace laws that have some impact on matters entrusted to the other level of government and it provides a flexible standard which gives the enacting body considerable leeway to choose the legislative techniques it deems appropriate which was applied in R v Zelensky ( 1978) & Multiple Acces. The impugned provision be “essential’ to the legislative scheme is stricter then the rational connection test found in Pappv Papp.

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For a major encroachment it deserves a stricter test- the impugned provision must be essential to the legislative scheme

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Dickson CJ “as serious of the encroachment on provincial powers varies, so does the test required to ensure that an appropriate constitutional balance maintained.” (d)-Concurrency- 3 provisions that confer concernent powers. First s92A(2) –confers on the provincial Legislatures the power to make laws in relation to the export of natural resources. and s92A(3)- is explicit the power to make laws in relation to the export of natural resources, trade and commerce power. Secondly, s94A confers on the federal Parliament the power to make laws in relation to old age pensions and supplementary benefits and the sections acknowledges the existence on concurrent provincial power . Thirdly, s95- confers power on both the federal Parliament and the provincial legislatures concurrent powers over agriculture and immigration. Two doctrines allows substantial area of concerency in Canada. The double aspect doctrine and the second judge made doctrine that leads to concerency is the “pith and substance” doctrine. (e)- exhaustiveness- the distribution of power between the federal Parliament and the provincial Legislature is exhaustive. exceptions to this doctrine- the framers knew created s92(16)- is generally all matters of a merely local or private nature of the province. The opening words of s91 give the federal Parliament the residuary power to “make laws for the peace, order and good government of Canada...” Any matter which does not come within any of the specific classes of subjects will be provincial if it is merely local or private (s92(16) and will be federal if it has a national dimension (s91, opening words) (f)- progressive interpretation- this doctrine is one of the means by which the Constitution Act 1867 has been able to adapt to the changes in Canadian society. It stipulates that the language used to describe the classes of subjects is not frozen in time in 1867 so Undertakings connecting the provinces could be telephone service. Some critics argue against it (orignalism) stating that the courts are forever bound by the “original understanding” This was seen in Same Sex Marriage reference (2004). The SCC emphasized the “living tree” quality of the Constitution. A good example can be seen in Re Employment Insurance Act [2005]- where the evolution of role of women in the labour market and the role of fathers in child care was highlighted. The constitutional language must be “placed in the proper linguistic, philosophical and historical context of the provision.” (g) unwritten principles- democracy, constitutionalism, the rule of law, the independence of the judiciary, the protection of civil liberties and federalism, are some of the principles. There are a number of cases where the SCC has found an unwritten principle in the Constitution. that is enforceable in precisely the same way as if it were an express term. Manitoba Language Reference (1985)- rule of law Re Remuneration of Judges ( 1997)-judicial independence Succession Reference ( 1998)-democracy, federalism, constitutionalism, and the protection of minorities. Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3 Hogg 15.5(a)- This case is an example of laws which have been upheld despite their incidental impact on matters outside the enacting body’s jurisdiction. A provincial law in relation to insurance and banking. 15.8(c)- A majority of the court confirmed that it had indeed changed its mind about the test for interjurisdictional immunity. Binnie and LeBel JJ who wrote the majority opinion, announced that the court was completing the “ the reassessment begun in Irwin Toy 15.8(e)-

5. Paramountcy Hogg, chapter 16, “Paramountcy” Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188 Hogg 16.2 Definition of Inconsistency When are two laws deemed to be inconsistent? Wide definition- is the course of judicial activism in favour of central power. Narrow definition is the course of judicial restraint. Canadian courts have followed the course of restraint. 16.3 Express Contradiction a) impossibility of dual compliance (express contradiction)- only clear case of inconsistency occurs when one law expressly contradicts the other. Laws that which directly regulate conduct, an express contradiction occurs when it is impossible for a person to obey both laws or “compliance

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13 with one law means breach of another”.- Smith v Queen (1960) BC v Lafarge Canada (2007)- where agency wanted to work on a port in Vancouver. Needed consent from federal government and provincial government. Held- until the city refuses permit, dual compliance is not ‘impossible here’. b) frustration of federal purpose- Canadian courts also accept a second case of inconsistency where a provincial law would frustrate a federal law. Where it is possible to comply with both laws but following the provincial law would frustrate the federal one, this is also a case of inconsistency. Law Society of BC v Mangat (2001)- federal immigration act provided that a party could be represented by a non-lawyer in front of refugee board. The BC legal Profession Act stated that non lawyers were prohibited from practicing law(and appearing before federal tribunals/boards) Compliance with “the federal law would go to contrary to Parliaments purpose to in enacting the federal laws)-they wanted to establish and informal, accessible, and speedy process. 16.4

Negative implication-

a) covering the field1. Where the federal Parliament has enacted a particular topic, does this preclude a province from enacting a different law on the same topic? 2. Where the provincial law does not contradict the federal law but adds to it or supplements it, it is the provincial rendered in operative by the federal law?

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SCC does not infer an inconsistency between federal and provincial laws based on an imputation that federal law “covers the field’ or carries a negative implication forbidding supplementary law in the same field. Rio Hotel v NB (1987)

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The court will infer an inconsistency where it concludes that a federal law has a purpose that would be frustrated by a provincial law.

b) express extension (clauses) of paramountcy – An express covering the field clause would be effective according to Hogg. Example- s88 of the federal Indian Act provides that provincial laws are inapplicable to Indians “to the extent that such laws make a provision for any matter for which provision is made by or under this Act” 16.5 Overlap and duplication Arguments against duplication of federal and provincial laws can have little weight once overlapping is admitted. a) Multiple access v McCutcheon (1982)- This case is considered an unequivocal ruling that duplication is not a test of paratmouncy, although two cases to the contrary. b) Double Criminal Liability- The existence of overlapping/duplicative penal provisions raise the possibility that person may be liable to conviction under both federal law and provincial law for the same conduct. c) Double Civil liability – double civil liability is also a possibility under overlapping or duplicative federal and provincial laws. The Privy Council has upheld double income taxation saying that federal and provincial taxes “may co-exist and be enforced without cashing” The SCC has held that no court would award damages to a plaintiff who had already been fully compensated. Short answer is that only express contradiction suffices to invoke paramountcy doctrine. US and Australia will apply the “covering the field test” . Canadian courts have rejected this test Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188 Hogg 16.3(b)- Federal Tobacco Act prohibited the promotion of tobacco products, except as authorization elsewhere in the Act . The act went on to say that “a person may display at retail, a tobacco product” The Saskatchewan Tobacco Control Act banned the display of tobacco products in any premise in which persons under the age of 18 years of age were permitted. Court held: the retailer could comply with both laws , either by refusing to admit persons under the age of 18 or by not displaying the tobacco products . Any federal frustration- Courts said no- because the general purpose of the Tobacco Act (address health problems) and the specific purpose of the permission to display “remained fulfilled”. Effect of inconsistency- if a federal law is inconsistent with a provincial law the doctrine of federal paratmouncy stipulates that the province law must yield to the federal law.   

The most accurate way of describing the effect on the provincial law is to say that it is rendered inoperative to the extent of the inconsistency. The paramount doctrine only applies to the extent of the inconsistency. If federal law is reapplied- the provincial law will “revive” without any re-enactment.

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14 Its misleading to describe the effect of a paramountcy doctrine as rendering a provincial law “inapplicable”-the description is not literally wrong-but it invites confusion with the doctrine of interjurisdictional immunity. This is the limitation on the power of the provincial legislatures to enact laws that extend into core areas of exclusive federal jurisdiction

6. Property and Civil Rights Constitution Act, 1867, s.92(13) Hogg, chapter 21, “Property and Civil Rights”

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s92(13)- confers power on the Provincial Legislature to make laws in regards to “property and civil rights in the province” Constitutional Act 1867- made changes to definition of property and civil rights. Federal Heads of power in s91 that would otherwise come under within property and civil rights. trade and comm. (s91(2)), banking (s91(15), bills of exchange and promissory notes (91(18), interest s91(19), bankruptcy and insolvency s91(21), patents and invention and discovery (s91(22), copyrights s91(23) and marriage and divorce s91(28) The POGG power in s91 can also deal with matters of property and civil rights

Civil Rights- in s92(13) is used in an older stricter sense. It does not include fundamental civil liberties of belief and expression. My provinces laws impinge on those liberties, but a law whose pitch and substance is the restraint of belief or expression does not come within property and civil rights in the province. Local and Private matters- the provincial “residuary power” in s92(16) over “all matters of a merely local or private nature in the province” is unimportant because the wide scope “property and civil rights in the province” has left little in residue in local or private matters. s92(16)- Is a possible alternative to a92(13) rather than an independent source of power. Jurisdiction over highway traffic is provincial but SCC has not confirmed itself to a head of power: suggestions s92(16) or s91(13) Insurance

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Reasons for regulation- insurance is not mentioned in the Constitution but attracted regulation. Governments sought to protect the insured from confusing terms and conditions of insurance policies by requiring inclusion of certain conditions in every policy.

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Provincial Power-19th century both level of governments started to regulated insurance. a provincial statue is what brought the first case to court. Citizens Insurance Co v Parsons ( 1881) –the Privy Council helped an Ontario statue requiring certain conditions be included into every policy of fire insurance entered in ONT. They held regulation of the terms of contracts came under property and civil rights in the province s91(13) and did not come within trade and commerce s91(2). several attempts by the federal government to regain jurisdiction had failed.

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Federal Power – continues to regulate a substantial part of the insurance industry under statues covering British and foreign companies, federally-incorporated companies and on a voluntary basis, provincially-incorporated companies. There has no constitutional attack since 1942. The federal statues that include preambles indicating the powers trade and commerce and aliens and insolvency are relied upon. All the litigation between 1916-1942- the federal power over “insolvency” (s91(21) was never considered as a possible jurisdiction .

Business in General

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Regulation of business was ordinarily a matter within property and civil rights of the province. There are exceptions. Some industries fall with federal jurisdiction because they are enumerated in s91 navigation and shipping 91(10), banking 91(15), or because they are expected from 92(10) interprovincial or international and communications undertakings. Some industries also fall under the POGG power ie taxation91(3) the criminal laws91(27) The double aspect doctrine also ensures substantial areas of concurrency even where federal power exists. Profession and tradesKrieger v Law Society of Alberta (2002)- regulation of professions, rules of conduct entry, fall within the province. Labour Relations

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15 (a) Provincial powers- the regulation of labour relations over most of the economy is within provincial competence under property and civil rights in the province. Unemployment Insurance Reference 1937 (b)- Federal – there is still a substantial federal presence in this field. Its jurisdiction over labour relations will extend outside the federal sectors of the economy in times of national emergency. Something like high unemployment, poor growth. Marketing

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Reasons for regulation- it is in the interests of both producers and consumers. Producers want to combine for bargaining power, uniform standards of quality enforced by grading, inspection, and labelling. They sometime sought pooling of proceeds and equalization on returns s so they were not affected by short term rises and falls in the markets.

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The interests of the consumers –prices, uniforms standards of quality, enforced inspection and labelling, deceptive marketing practices.

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Federal Power- federal regulation in grain and oil has been upheld. It is because these god traveled from province to province or export could be regulated.

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Provincial Power-contracts of sale and purchase are prima facie matters within “property and civil rights “(s92(13) No doubt that under s92(13) the provinces have the power to regulate interprovincial trade (not interprovincial trade.) s50 added a new s92A enlarging provincial powers over natural resources. “these apply to non-renewable natural resources and forestry resources.” –it has no application to eggs or other agriculture products. s92A(2)- may also be relevant to production controls in marketing plans. Securities Regulation 21.10

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Provincial power- this a matter within the property and civil rights of the province. (there are exceptions federally-incorporated company can be regulated by both provincial and federal.)The question is in each case, whether a the degree of provincial control amounts to a denial of an essential attribute of corporate status.

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Federal Power- regulation of securities by federally-incorporated companies and authorizes some degree of regulation of trading those securities. Criminal law can punish deceptive practices. The federal power would not a regulatory regime in licensing of brokers and discretionary powers in administrative agencies.

Property

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General-the creation of property rights, their transfer, and their general characteristics are within property and civil rights in this province. The law of real and personal y property-landlord –tenant, trusts, wills, succession on intestacy, conveyancing and land use planning are provincial power.

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Criminal law can have affect and make it federal jurisdiction. Prohibiting the use of a house to “propagate communism or bolshevism” Foreign ownership- Morgan v AG PEI- a province can control ownership of land. A statue in PEI stated that no person who is not a resident of the province” could acquire holding of real property of more than a specified size except with the permission of provincial cabinet. If it was aliens instead of non-residents it may have been federal jurisdiction because naturalization and aliens s91(25). Morgan suggests that even if aliens, provincial jurisdiction is ok. Federal Parliament has also asserted jurisdiction over foreign ownership of property in Investment Canada Act which provides screening measures of “non Canadians” and take over bids.

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Heritage property- Kitkatla v BC (2002)- protection of heritage or cultural property was within provincial jurisdiction under property and civil rights in the province (s92(13) In this case they wanted to cut down trees.  Debt adjustment Law of contract is mainly within provincial power under property and civil rights in the province. Federal Parliament has ‘ interest’ s91(19) and “bankruptcy and insolvency” s91(21) withdrawing these subjects from provincial power. Consumer protection-

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Irwin Toy v Que [1989]-Much consumer protection law is open to the province under the power over property and civil rights in the province. 92(13) Federal law could just as accurately be described in relation to consumer protection. The term “consumer protection” is too vague to fall under one matter.

Extraterritorial competence- s92(13)- confers power over property and civil rights in the province. The words “in the province” make it clear that there is a territorial limitation on the power . Citizens' Insurance Co. v. Parsons, (1881) 7 A.C. 96 (P.C.) Chatterjee v. Ontario (Attorney General), 2009 SCC 19

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7. Trade and Commerce Constitution Act, 1867, s.91(2), s.92(13), S.92A Hogg, chapter 20, “Trade and Commerce” General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R.641

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s91(2)

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despite board language in this clause, it has turned out to be much more limited power then its American cousin due to judicial interpretation. the courts by process of mutual modification have narrowed the two classes of subjects so as to eliminate the overlapping and make each power exclusive.

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Federal Power over trade over regulation of trade and Commerce

s92(13) “Provincial power over “property and civil rights in the province” the interpretive problem for Canada lay in accommodation of the federal power over the regulation of trade and commerce s91(2) with the provincial power over “property and civil rights in the province”s92(13

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Parsons Case- it has been accepted that intra-provincial trade and commerce is a matter within provincial power, under “property and civil rights in the province”(s92(13)

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Federal trade and commerce power is confined to 1) interprovincial trade or international trade and 2) commerce and “general” commerce in 91(2)

Hogg 20.2(b) Interprovincial Provincial or International Trade and Commerce There is a strong argument that whenever a market for a product is national (or international) in size as opposed to local, there is a strong argument that effective regulation of the market can only be national says Hogg see Caloil v AG Can (1971) Canadian decisions have not gone that far yet like the US. Cases supporting Hoggs Statement :

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egg market in Re Agricultural Products Marketing Act (1978)- federal marketing was upheld.

chicken market in Federation des producteurs v Pelleand (2005) the court upheld a federally imposed quota on each of the provinces without the regard for the destination of the product. Struck Down:

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Hogg disagrees with this decision in Dominion Stores v The Queen (1979) which struck down the Canada Agricultural Products Standards Act. Labatt Breweries v AG Can(1979)- another case where the federal trade and commerce power was rejected as a support for federal legislation. General Trade and Commerce

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until General Motors- the general category of trade and commerce had been rather consistently rejected as a support for federal policies of economic regulation.

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In Vapor Laskin CJ suggested that circumstances where the general category would be available if the law had been part of a “regulatory scheme administered” by a “federally appointed agency.”

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General Motors- Dickson CJ held that the combines Investigation Act ( now the competition Act) was a valid exercise of the general

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17 trade and commerce power . He applied the Vapor Test- consists of 3 elements 1. the presence of a regulatory scheme 2. the oversight of a regulatory agency” and 3. a concern “with trade as a whole rather than with a particular industry. Dickson added a fourth and fifth for 5 elements 4. ”the legislation should be of a nature the provinces jointly or severally would be constitutionally incapable of enacting’ 5. “the failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the competition. note: The General Motors Case had all five elements present.

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18 8. Peace, Order and Good Government Constitution Act, 1867, s.91 (opening words) Hogg, chapter 17, “Peace, Order, and Good Government”  The POGG clause in s91 is a residual power in its relationship with the provincial heads of power.  The residual nature of the federal power ensures that every possible subject of legislation belongs to one or other of the federal Parliament or the provincial legislatures.

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Thesis- the enumerated head of federal powers are merely examples of peace, order and good government of Canada; they are not heads of power which exist independently of the opening words. This finds support in the opening language of s91. 2 reasons why Hogg rejects the “general theory” and supports the “residual theory” of the POGG power: 1. The federal list was not just superfluous grammatical prudence; it was compelled by historical necessity and has independent standing. 2. the second reason it does not accord with the practice of the courts in applying the power distributing provisions of the Constitution.

3 ways in which legislative power has grown from the POGG power

1. 2.

The “gap” Branch- one office of the POGG power is to fill the gaps in the scheme of distribution of power. (ie- incorporation of companies s92(11) gives the provinces the power to incorporate companies with provincial objects). Since there is no equivalent enumerated federal power the courts have held it falls under POGG power because it is residual in nature. The “national concern branch”- The “provincial inability test” is used to describe national concerns. The most important element of national concern is a need for one national law which cannot be realistically be satisfied by cooperative provincial action because failure of one province to cooperate would carry with it adverse consequences for the residents of others provinces. Hogg 17.3(b) Le Dain J upheld federal jurisdiction over marine pollution in R v Crown Zellerbach Canada 1988 - He set out 5 requirements for a matter to qualify as a matter of national concern. It must have: 1) singleness 2) distinctiveness 3) indivisibility clearly distinguishing it from matters of provincial concern 4) the failure of one province to enact effective regulation would have adverse effects of interests exterior to the province 5) the scale of the impact on the provincial jurisdictions is reconcilable with the fundamental distribution of legislative power under the Constitution.

Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373 Hogg 17.2 17.3(c) (d)-Beetz J had referred several times to a “new matter” or a “new subject”-Hogg suggest he meant an issue arising for consideration for the first time”, and “not under an enumerated power” 17.4(b) 17.4(d)-the most recent application of the emergency doctrine is to be found in the Reference Anti-Inflation Act [1976]- in which the federal anti inflation Act was upheld as an emergency measure. Their was a period of double digit inflation and high rates of unemployment. Problem was the preamble of the Act itself did not recite reasons for the legislation or assert the existence of an emergency. Thier was factual material (economic study) which was agreed to by professionals and not serious challenged. note about facts- In a constitutional case where the validity of legislation depends upon findings of fact concerning social or economic condition of the country it’s obviously impossible for the Court to make definitive findings. 17.4(e) 17.5 Important note about temporary charter of law- the anti-inflation reference the legislation was temporary. No permanent measure has ever been upheld under the emergency power. Relationship between “national concern” and “emergency branch”-thesis by Lederman (adopted by Beetz J) is that POGG power performs 2 separate functions in the Constitution. First, it gives to the federal Parliament permanent jurisdiction over “distinct subject matters which do not fall within any of the enumerated heads of s 92 and which by nature are of national concern. Secondly, the POGG power gives the federal Parlaliment temporary jurisdiction over all subject matters needed to deal with an emergency. On this dual function theory- it is not helpful to regard an emergency as simply being an example of a matter of national concern R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401 Hogg 17.11. 17.3(a)-(d) (c) the issue of distinctness was the issue that divided the SCC in this case. Majority upheld the federal Ocean Dumping Control Act which

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19 prohibited dumping at sea on the basis of marine pollution was a matter of national concern. LaForest dissented-he felt the power to regulate marine pollution thus intruded too deeply into industrial and municipal activity, resource development and other matters in provincial jurisdiction. (d) Le Dain – For a matter to qualify as a matter of national concern ...it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution. 17.4(e) 17.5 POGG Power CANNOT- be used to regulate a particular industry merely because the industry is nation-wide and important to the national economy. (Insurance Reference)

9. Criminal Law Constitution Act, 1867, s.91(27), s.92(15) Hogg, chapter 18, “Criminal Law” Re Firearms Act, [2000] 1 S.C.R. 783

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Constitution Act, 1867, s.91(27)- confers on the federal Parliament power to make criminal laws. The scope is of the power has been defined broadly. A criminal law must have a valid criminal law purpose backed by a prohibition and a penalty.

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Criminal Purposes - a purpose that will qualify to sustain a law as criminal law does not necessarily involve the prevention of harm to other human beings. Protection of the environment, protection to the cruelty of animals, various forms of economic regulation has been upheld criminal law.

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Food and Drug Standards- Margarine Reference was struck down on the basis that the purpose of legislation was an economic one protecting the dairy industry.

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If “injurious to health” then no doubt would be a criminal public purpose. The “prevention of consumer deception” Labatt Breweries v A.G. Can (1971)

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Illicit drugs- non medical use of drugs such as marihuana, cocaine and heroin is proscribed by the NCA. This act has been upheld as a criminal law. Schineider v The Queen (1982)-the SCC upheld the BC Heroin Treatment Act- compressive apprehension , assessment and treatment of drugs addicts. was provincial s92(16). Not criminal because detention was not for punishment.

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Tobacco- RJR-MacDonald v Canada ( 1995)- the SCC held the power to prohibit the use of tobacco on account of its harmful effects on health also encompassed the power to take the lesser step of prohibiting the advertising of tobacco products.

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Health- is an “amorphous topic” and can fall under provincial or federal. Depends on the purpose and effect of the legislatures .

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Abortion –The CCC used to prohibit abortions. In Morgentaler v The Queen- the validity of the prohibition was challenged on the basis that the safety of modern techniques of abortion made prohibition inappropriate as a protection for the health of the pregnant women. – therefore prohibition was not authorized by the criminal law power.

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Hogg 18.7 - Competition Act- Since economic competition is important and its difficult for provinces to regulate anti-competitive practices it has been agreed it has to be federal to be effective.

Environmental protection – R v Hydro-Quebec (1997)-SCC agreed that the protection of the environment was a public purpose that would support a federal law under the criminal law power and the Environmental Protection Act was covered.

 US and Australia- criminal law is a state responsibility 18.8 Sunday Observance Law

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20 Federal power- In R v Big M Drug Mart (1985)- the SCC confirmed that the Lord’s Day act was a valid exercise of the criminal law power, because it pursued the religious purpose of preserving the sanctity of the Christian Sabbith because it was intended to safe guard morality. Provincial power- Lieberman v The Queen (1963)- it was held that provincial authority also extends to the imposition of limits on the business hours of commercial establishments

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Gun Control - In 1995, the federal parliament amended the CC provisions by enacting the Firearms Act which expanded the existing rules by requiring all guns to be registered and all gun owners to be licensed. Alberta appealed this act and the SCC held that this was a valid exercise of criminal law power. The purpose was to restrict access to inherently dangerous things. History had revealed violent crimes, domestic violence, suicides, and accidents. The court held it was not merely regulatory because if provisions were enforced by the criminal law means of a prohibition and penalty, because the Act prohibited possession of a gun without a license and a registration certificate, imposed penalties for breach of the prohibition.

-----more work ended on 499 Re Firearms Act, [2000] 1 S.C.R. 783 Hogg 18.9(a)- SCC held act was a valid exercise of the criminal law power. Purpose of the act was to restrict access to inherently dangerous things. They looked at legislative history-concerns with violent crimes, domestic violence, suicide , and accidents- all which could be facilitated or worsened by ready access to guns. All requirements of the act pointed to public safety. Registration provision not concerned with priority between competing property interests in guns, like a provincial property registry. Acts focus on public safety distinguished the act from provincial property registration schemes. The effect on property was “incidental” to the main purpose to public safety. The Act was not merely regulatory- it’s provisions were enforced by the criminal –law means of a prohibition and penalty. 18.10(a)18.12 -

Part III: Human Rights and Freedoms 10. Language Rights Constitution Act, 1867, s.133 Manitoba Act, 1870, s.23 (see Hogg, chapter 56, note 40) Constitution Act, 1982, ss.16-23 Hogg, chapter 56, “Language” For constitutional purposes language is ancillary to the purpose for which it is used for and the language law is for constitutional purposes a law in relation to the instructions or activities to which the law applies. Jones v AG of New Brunswick ( 1974) SCC upheld federal Official Languages Act which made Eng. Fre official languages of Canada. For courts it could be authorized under s 101 and over criminal procedure under s 91(27) Devine v Quebec ( 1988)- SCC upheld provisions of the Quebec’s Charter that regulated language of commerce public signs, invoices, orders, receipts etc and this fell under provincial jurisdiction of property and civil rights in the province s92 (13) Anything related to interprovincial regulations ie radio –tv is federal authority. Language of the Constitution s55 Constiution Act 1982- directs the Minster of Justice to prepare French version of the English only parts of the Constitution of Canada 1867. It still remains unofficial . Any discrepancy would have to use the English one because it is official. The Constitution Act 1982 and Canada Act are both in official languages. s57 The Constitution Act 1982- provides that the English and French version of that Act are equally authoritative s56 provides that both languages versions of other parts of Constitution of Canada are both “equally authoritative” Since the confederation federal statues have been enacted in both languages because it was required by s 133 of the Constitution Act 1867. The court have held that both versions equally authoritative and have developed rules for resolving discrepancies. Any doubt or ambiguity is solved by looking at the clear version. s133 permits English and French to be used in debates in the House of the federal Parliament and Quebec Legislatures. s133 applies only to the legislative bodies ( and courts) and the federal government and of Quebec. Manitoba Act 1870 1870 includes s23 a provision that provides for the use of English and French in the Legislature (and courts ) Of Manitoba in terms very similar to s133. No other province created after 1867 had language guarantees written into their constituent instruments or terms of union.

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21 Charter of rights s16-23 provides language provisions. s17-19 duplicate s133 in their application in legislative bodies (and courts) of the federal government. Charter rights 17-19 apply to New Brunswick so New Brunswick is in the same position as Quebec /Manitoba Quebecs Charter of the French Language- AG v Blaikie ( 1979)-SCC struck down provisions of Quebecs Charter of the French language that purported to make the French language of the Legislature. The Act provided that bills were to be provided in French only and only the French version be official. This contravened s133. S133 requires law “be print and published” in both languages especially in “records and journals”. This means all statues enacted after the Quebec’s Charter were in violation of s133. This was fixed the next day Manitoba Official Language Act We have noticed that s23 Man. Act 1870-provides for Eng./Fre in the legislature (and courts) of Manitoba similar to s133 of the Constitution Act 1867. The reason for s23 was to guarantee the right to French speaking minorities. In 1890 , the Manitoba Legislature enacted the Official languages Act which provided English Language only” in records and journals of the Legislature and in the pleadings and process in the Manitoba courts. This Act was then held to be invalid by county courts in 1892 and 1890. These decisions were not appealed or record and disregarded by authorities in Manitoba. Then in 1976, a third attack was mounted against the Official Languages Act and again it was found to be invalid by a county court. The AG of Manitoba announced that : “the Crown does not accept the ruling of the Court with respect to the constitutionality of the Official Languages Act.” In 1978 it was challenged for the fourth time. This time a French speaking plaintiff brought an action in Manitoba court seeking a declaration that the Act was invalid. Court held that Manitoba’s Official Languages Act was unconstitutional. Re Manitoba Language Rights (1985) SCC confirmed that the failure to comply with s 23 requirement resulted in the invalidity of the purported statue. Re Manitoba Langauge Rights –courts considered a two stage procedure for bilingual enactment. The 1st stage- enactment of the bill in English only 2nd stage- was the preparation of a French translation of the bill, which would have legal effects on the Legislatures. This two stage process was also unconstitutional. Another provision stating to refer to English first the French second was also unconstitutional because both versions were “equally authoritative Langauge of Proceedings- Societe des Acadians v Associations of Parents (1986) s19(2) Charter imposed on the courts language requirements similar to s133. The Society claimed a breach of s19(2) when 3 judges heard their appeal but argued one could not speak French. The SCC held that the societe had not established their allegation that the judge could not speak French. Dickson CJ and Wilson J each stated that the litigants right to use either English and French impliedly included the right to be understood in the litigants language of choice by the judge hearing the case. Right to Interpreter – s14 confers the right to a language speaker or deaf. There is a similar right s2(g) of the Canadian Bill of Rights. There is also a common law right to an interpreter. R v Tran- argued a breach to s14. The quality of the interpretation has to meet the standard of “ continuity, precision, impartiality, competence, and contemporaneousness. s14- applies to any proceedings, including civil, criminal and administrative. Should be paid for by public funds. Language of Government 56.6 (a) s16 Charter- This section makes English and French the Official Languages of Canada and New Brunswick. Has 3 subsections –not for government and public communications(s20) s20 Charter- This section imposes an obligation on government to provide bilingual services on the Public. In nine of the provinces- their is no obligation to provide government services in both official languages. Language of Commerce No rights in the constitution protect the use of English or French in private commercial settings. However they may offend the the guarantee of freedom of expression in s 2(b). see Ford v Quebec ( 1988) Language and education s92 Constitution Act 1867- confers powers upon the provincial Legislatures the power to make laws in relation to education but it prohibits the Legislatures from prejudicially affecting rights or privileges with respect to denominational schools existing by law at the time of confederation. If a language of instruction was a right or privilege of denominational schools in a province at the time of confederation then the province would have to respect that. Mackell case- conclusion is that s93 would preserve the language of school if could be proven it was existent before confederation. Mackell decides that no right would exist in Ontario, NB, NS, PEI, BC. s23 Charter- minority language rights have now been provided for in s23. It is on citizens of Canada, who are English speaking minority in Quebec or French Speaking majority in other provinces. “the right to have their children receive primary and secondary school in their language in that province.” Parent has to fit into 1 of 3 categories: 1. mother tongue of the parent s23(1a) 2. the language of primary school instruction in Canada of the parents (1b) 3. the language of instruction in Canada of one child of the parent s23(2) “Mother tongue of parent”- they have to “reside”, be Canadian citizen, be an language minority French or English, Need to prove the language was “ “first language learned” and is “still understood”

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22 By virtue of s59 Constitution of Act 1982- the paragraph does not apply in Quebec until the legislative assembly or government of Quebec decides to adopt it. English speaking parents in Quebec have no right to send their children to English speaking schools, unless they fit into the second or third category of parent recognized by s 23. Language of Instruction by Parent- s23 (1) (b)- applies to citizens who have received their primary school instruction in Canada in a minority language of the province where they now reside. This is called the (Canada Clause). Citizens who move from one province to another retain their right to have their children educated in the same language as that which parent was educated anywhere in Canada. Quebec is not exempt from this para(b). Quebec Charter of the French Language – had a Quebec clause but limited English speakers. AG of Que v Quebec Protestant School Board (1984) SCC held that this clause was in conflict with s21(1)(b) of the Charter. The Quebec clause has to yield to the Canada clause. Language instruction of Child in Canada-s23(b) Quebec is not exempt from this clause either. This is to encourage mobility in Canada by guaranteeing the continuity of a child’s minority language education. where the number warrant- s23 (3)(a) uses the phrase the right to “instruction” is limited to “wherever” in the province the number of childen of citizens who have such right is sufficient to warrant the provision to them public funds” You need to look at scale and decide where the minority group sits. Apply case law. Mahe v Alberta (1990)- court rejected argument that language facilities was not just physical facilities. It also includes a degree of management and control that was proportionate to the number of qualifying children. Arsenault-Cameron v PEI (200) French language school wanting a bus service. for 49 students.SCC sided with parents and held the relvant number “was somewhere between the known demand and the potential students who may go.” The number should over 100. The number in this case who potentially would go is 155.

11. Aboriginal and Treaty Rights Constitution Act, 1867, s.91(24) Constitution Act, 1982, s.25, s.35 Hogg, chapter 28, “Aboriginal Peoples” R. v. Van der Peet, [1996] 2 S.C.R. 507, per Lamer C.J., paragraphs 1-94 Peter Hogg 2007

Aboriginal People

Hogg 28.1- Federal Legislative Power s 91(24)- of the Constitutional Act 1867 – confers power upon the federal Parliament the power to make law in relation to “Indians, and lands reserved for the Indians”. main reason for s92(24)- there was a concern for the aboriginal people against the local settlers, whose interest lay in an absence of restrictions on the expansion of European settlement. second reason- was probably a desire to maintain uniform national policies respecting the Indians. The Royal Proclamation 1763- had established that treaty making with the Indians was the sole responsibility of the Imperial Crown in right of the United Kingdom. After confederation, the federal government was the natural successor to that responsibility. s 91(24) has 2 heads of powers :

1. A power over “Indians” (reserved for only Indians where they reside on, or have any connection with, lands reserved for Indians.) see below for details

2. And a power over “lands reserved for Indians” (maybe exercised in respect of Indians and Non Indians so long as the law is related to lands reserved for the Indians.) “Indians”

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23 Who is an Indian? –In Canada is used to mean the aboriginal peoples who have been living there long before European contact. The Federal Indian Act - defines the term “Indian” /establishes a register to record names/ and persons within this statutory definition are known as “Status Indians”. They can enjoy the right to live on Indian reserves. Not “Indians” –some persons’ with Indian Blood and Culture-who are outside the definition. These are non-status Indians. The Metis People (French/Indian) outside reserve system most likely Indians Under s 91(24) & The Inuit or Eskimo people- are outside reserve system but held to be Indians within the meaning of s91(24) Metis and Inuit are not governed by the Indian Act. What kinds of laws may be made in relation to Indians?- the federal government has taken a broad view that it may legislate for Indians on matters which otherwise lie outside its legislative competence and which it could not legislate for non-Indians. (Indian Act- provisions that govern: succession to the property of deceased Indians, administration of property of mentally incompetent Indians and infant Indians.) Whether these provisions are valid? This is of course a question of characterization: are they in pith and substance in relations to Indians? Lysykdoubts as to the validity of the Indian Act’s forays into the law of property. “Lands reserved for Indians”- obviously includes lands set aside as Indian reserves in various ways. It also Includes huge area of land recognized by the Royal Proclamation 1763. This is all land within the territory covered by the proclamation that was in possession of the Indians and that had not been covered by the crown. Delgamuukw v B.C. (1997)- the SCC went even further holding the phrase extends to “all lands held pursuant to aboriginal title”. For that reason, only the federal Parliament had the power to extinguish aboriginal title. St Catherine’s Milling and Lumber Co v the Queen (1889) - The title of the provincial crown is subject to the aboriginal rights of the Indians and of those rights along with other matters pertaining to the control and administration of the reserves are subject to the legislative authority of the federal government. Discrimination/Offence-with the Canadian Bill of Rights? The CBOR applies only to federal laws. It contains s. 1(b) a guarantee of “equality before the law “ and specifically forbids “discrimination by reason of race” The federal Indian Act appears to offend the guarantee of equality in the Canadian Bill of Rights. In the first branch of s91 (24), it clearly uses the term Indian and employs a racial classification in order to be constitutional. R v Drybones (1969)- The SCC held that the use of the racial classification “Indian” in s94 of the Indian Act(which made it an offence for an Indian to be intoxicated on a reserve) violated the equality guarantee in the Canadian Bill of Rights. However, it appears the special regime of law for Indians is not threatened by this decision. Discrimination/Offence-with the Charter of Right s15 - The Charter by s 15 also contains an equality assurance. The Indian act has not been challenged under s 15 by reason of its own use of the “Indian” classification. A challenge would most likely be unsuccessful because of the Constitutions various recognitions of various Indian special status.

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Corbiere v Canada (1999)- the SCC struck down a provision of the Indian Act that made residence on the reserve a requirement for voting in band elections. Held: That the distinction between Indians who lived on the reserve( an could vote) and Indians who lived off the reserve was a breach of s 15. Lovelace v Ontario ( 2000)The SCC rejected a challenge to the distinction of the Casino Rama gambling profits that was limited to communities registered as bands under the Indian Act. The court held that the exclusion of non status bands from the distribution of the profits was not a breach of s15.

Treaties / s35 of the Constitution Act 1982 –now gives the constitutional protection to rights created by treaties entered into with Indian tribes or bands and perhaps to rights created by provisions in international treaties. S35 operates as a limitation on the powers of the federal government as well as a provincial legislatures. Hogg 28.2 Provincial Legislative Power Application of provincial law-general rule is that provincial laws apply to Indians and lands reserved for the Indians. There 5 exceptions to this rule! See below

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R v Hill (1907)- Ont. Court of appeal held that a provincial law confining the practice of medicine to qualified physicians applied to Indians: an Indian was convicted of the offence of the unauthorized practice of medicine. ( no on reserve but it didn’t matter) Four B Manufacturing v United Garment Workers( 1979) –The SCC held that that provincial labour law applied to shoe manufacturing business which was located on a reserve, which was owed ( through a corporation) by Indians, which employed manily Indians and which had been funded by the Department of Indian Affairs.

R v Francis- (1988)- the court held that a provincial traffic laws applied to an Indian who had been driving a vehicle on a reserve.

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24 Provincial vs Federal The Four B and Francis cases definitely rejected the theory that Indian reserves are federal “enclaves” from which provincial laws are excluded. Paul v British Colombia (2003)- the court held the BC Forest Practices Act applied to an Indian who had been cutting timber in breach of a prohibition in the Act. Exceptions A) Singling Out –A provincial law that singles out Indians or Indian reserves for special treatment would run the risk of being classified as a law in relation to Indians or Indian reserves and if so classified, the law would be invalid. R v Sutherland [1980] B)” Indianness” - basically anything that affects status or capacity- Kruger and Manuel v The Queen [1978] C) paramouncty- If a provincial law is inconsistent with a provision of the Indian act (or any other federal law) the provincial law is rendered inoperative by the doctrine of federal paramountcy. D) Natural Resource Agreement- Provincial laws cannot deprive Indians the right to take game and fish for food. The NRA is part of the Constitution of Canada. E) section 35 has protected treaty rights. s 88 Of the Indian Act s88 makes it clear that provincial “laws of general application” apply to Indians. It makes no comment on lands reserved for Indians but there is no doubt that the section extends to Indians on reserves. “Laws of general application”- the phrase excludes provincial laws that single out Indians for special treatment. Aboriginal Rights Hogg 28.5 Recognition of Aboriginal Rights

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The effect of Guerin and Sparrow is to confirm that aboriginal rights do exist at common law and they are enforceable at the suit of aboriginal peoples. Sparrow- decides as well that aboriginal rights including fiduciary duty are now constitutionally guaranteed through s35 of the Constitutional Act 1982 Calder Case (1973)- six of the seven judges held that the Nishga people of BC possessed aboriginal rights to their lands that had survived European settlement. Guerin v The Queen (1984) – Aboriginal rights that have not been extinguished are recognized by the common law and are enforceable by the courts. The majority of the SCC recognized that the aboriginal title of Musqueam Indian Band to land in BC

Dickson- “ a legal right derived from the Indians historic occupation and possession of their tribal lands”. Held: The aboriginal title to the land gave rise to a fiduciary duty on the part of the crown to deal with the land for the benefit of the surrendering Indians. Held- This fiduciary duty had been broken and awarded damages to the Band. (this did not depend on s 35 of the Act)

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R v Sparrow ( 1990) – The SCC unanimously recognized the aboriginal right of a member of the Musqueam Indian Band to fish for salmon in the Fraser River. “Where his ancestors had fished from time immemorial”  The defendant had been charged with the violation of the federal Fisheries Act and because the charge related to facts occurring after 1982 he was able to invoke the s35 of the Constitution Act 1982.  Held- That s35 did provide constitutional protection for the aboriginal right and laid down principles that govern s35.  The court had also enlarged the fiduciary duty “the Government has the responsibility to act in a fiduciary capacity.” Definition of Aboriginal Rights

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Guerin and Sparrow cases had recognized aboriginal rights. R v Van der Peet (1996) the SCC had went further and defined aboriginal rights. R v Van der Peet ( 1996) as per Larmer C.J.- Aboriginal rights are rights held by aboriginal peoples, not by virtue of Crown grant, legislation or treaty but “ by reason of the fact that aboriginal peoples were once independent, self governing entities in possession of most of the lands now making up Canada. R v Van der peet ( 1996) Legal Test– the SCC had articulated the legal test that was used to identify an “existing aboriginal right within the meaning of s35 of the Constitutional Act 1982.”

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Legal Test “In order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right”

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In order for the practice to be “integral”, the practice must be “of central significance” to the aboriginal society : it must be a defining characteristic of the society, “one of the things that made the culture of the society distinctive.

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The practice must have been developed before “contact” that is, “before the arrival of Europeans in North America. ( 2 dissenting judges felt the requirement unduly difficult to prove)

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The practice can evolve over the years as the result of contact- ( ie bone hook-metal hook & bow and arrow- gun) but Do not qualifycontemporary practices that developed “solely as a response to European influences” do not qualify.

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Facts Van der Peet- defendant had been convicted of catching and selling fish that she had caught under the authority of a Indian food-fish license. The court held that fishing for food was part of the Sto:lo society as well with the exchange of fish, but selling the fish was not an “integral part” of the Sto”lo culture.

Similar cases-

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R v. NTC Smokehouse – rights not established The practice of of exchanging fish was not sufficiently central to the aboriginal culture to qualify as an aboriginal right . R v. Gladstone [1996]- rights established the court held that the claimed aboriginal right which was to sell hearing spawn on kelp was established and “was a central and defining feature of Heilstuk society”.

Metis Rights-Legal test changed

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R v Powely ( 2003)- Held- for Metis claimants of aboriginal rights, the focus on European contact had to be moved forward, not to the time of European sovereignty, but to “the time of effective European control.”The same Van der Peet definition was used to be used to identify Metis rights.

Aboriginal Self –Government

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B. Slatttery- The aboriginal right of self government must exist because aboriginal people were living in self government communities before the arrival of Europeans. First Ministers –Charlottetown Accord of 1992- agreed of “the inherit right of self government within Canada” which if ratified would have explicitly protected ( an regulated) this right in a new s35.1 of the Constitution Act 1982. R v Pamajewon (1996) –the SCC rejected a claim by the Shawanaga and Eagle Lake First nations to conduct high stakes gambling on their reserves. In each case the gambling operations were conducted pursuant to a law enacted by the band council. It was not a by-law of the Indian Act. They were charged with a gaming offence under the Indian Act. Larmer CJ characterized the claimed right as a right “to participate in and regulate, gambling activities on their respective reserve lands.” Evidence showed- that they gambled before the arrival of Europeans, it was small scaled and informal and was never part of the means by which the communities were sustained. Court was concerned with- the ability of aboriginal people to immunize themselves from the rules of the Criminal Code was a major concern for the courts. R v Pamajewon (1996)- the aboriginal right to self government extends only to activities that took place before European contact and only those activities that were an integral part of the aboriginal society. Proposed s35.1- Charlottetown Accord – wanted to give meaning to self governing in a modern context.

Question- if the federal or provincial laws apply in the face of an inconsistent aboriginal law is a separate question from the extent of the power of self government. If the Criminal code in Pamajewon would have to yield to aboriginal law then a question of paramountcy would have arisen and should be resolved by the Sparrow test. Potential Question—Does the provision of the Criminal Code satisfy the Sparrow test of justification? Delgamuukw v B.C. (1997)- proceedings for a declaration that they had aboriginal title and self government right over a territory in northern B.C. The SCC did not grant the declaration sought and ordered a new trial. Larmer CJ did provide extensive reasons as to the nature of aboriginal title. 2 things that was said about aboriginal title and self governance is 1) land held under held under aboriginal title is “held communally” & 2) aboriginal title “encompasses the right to choose to what uses land can be put.”

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26 Aboriginal Title- is the right to the exclusive occupation of land, which permits the aboriginal owners to use the land in a variety of purposes. It would obviously permit the owners to hunt fish and harvest their lands .However, rights to particular activities such as hunting, fishing and harvesting may also exist on land to which the aboriginal people do not have title to. ( Fishing- R v Adams [1996])

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Delgamuukw v British Columbia (1997) proceedings for a declaration that they had aboriginal title and self government right over a territory in northern B.C. The SCC did not grant the declaration sought and ordered a new trial. Larmer CJ did provide extensive reasons as to the nature of aboriginal title. 2 things that was said about aboriginal title and self governance is 1) land held under held under aboriginal title is “held communally” & 2) aboriginal title “encompasses the right to choose to what uses land can be put The point of time at which aboriginal occupation of the land must be proved in order to make out aboriginal title is “prior to sovereignty” not “prior to contact”

5 Differences between aboriginal title vs non-aboriginal title 1. Source of aboriginal title- derives from pre sovereignty occupation rather than post sovereignty grant from the crown. 2. the range of uses to which aboriginal title land may be put. 3. Aboriginal title is inalienable, except to the Crown. The Crown has to act as an immediatry between the aboriginal owners and third parties. To pass to third parties, the aboriginals must surrender the land to Crown. 4. Aboriginal title can only be held communally. 5. Aboriginal title is constitutionally protected. Extinguishments of Aboriginal Rights This can occur in 2 ways 1) by surrender (must be voluntary and to the Crown) R v Howard [1994] 2) by constitutional amendment R v Horseman [1990] Definition of Treaty has been described as “unique” or “sui generis”. It not subject or to the rules of international law and is not a treaty at international law. It is not a contract and not subject to rules of contract law. It is an agreement between the Crown and aboriginal nation with the following characteristics.

1. 2. 3. 4. 5.

Parties-Crown on one side, aboriginals on the other. Agency- the signatories on the treaty must have the authority to bind their principles, namely the Crown and the aboriginal nation. Intention to create legal relations: the parties must intend to create legally binding obligations. Consideration- the obligations must be assumed by both sides, so that the agreement is a bargain. Formality: there must be a certain measure of solemnity.

2 leading cases about treaties are: Both cases were applying s88 of the Indian Act not s35 of the Constitution Act 1982-(safe to say word treaty is similar. )

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R v Sioui (1990)-short document signed in 1760 which “certified” that the Chief of Huron Indians had come “ in the name of his nation” the free exercise of their religion, customs and liberty. The SCC held this to be a valid treaty by virtue of s 88 of the Indian Act. Simon v the Queen (1985)-Held to be a valid treaty to except the Micmac defendant from the game laws of Nova Scotia.

Principle of interpretation- that treaties and statues reacting to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians. Simon v The Queen [1985] Extinguishments of Aboriginal Treaty Rights This can occur in 2 ways 1) by surrender (must be voluntary and to the Crown) R v Howard [1994] 2) by constitutional amendment R v Horseman [1990 12. Interpreting the Charter of Rights and Freedoms Hogg, chapter 36, “Charter of Rights” General Charter Information- The Charter is part of the constitution therefore it can only be altered by a constitutional amendment. It applies to both levels of government (s32(1)). It guarantees a set of civil liberties that are so important that they should receive immunity from state action. Usually this is accomplished through the legislative and executive branches of government which avoid actions which breach the Charter. All statues are reviewed. If a law violates the Charter then a court will view it to be nugatory. It is considering a unifying instrument, adding a dimensions of allegiance to Canada as a whole while invoking national standards. 36.4(b) Issue- The additional of the charter’s grounds of judicial review has proved to be a substantial expansion of judicial review. Many charter

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27 rights are expressed in vague terms and comes into conflict with other Canadian values. Therefore, review under the Charter involves a much higher component of policy that any other line of judicial work. Most Charter rights are fairly vague. (ie fundamental justice) Role of section 1- Judicial Review 2 stage process  

Section 1 authorizes the courts to balance the guaranteed rights against competing societal values. It makes clear that a law limiting a Charter right is valid if the law is a “reasonable” one that “can be demonstrably justified in a free and democratic society.”



Judicial Review of legislation under the Charter of Rights is a two-stage process.

The 1st stage of JR , is to determine whether the challenged law derogates from a Charter right. first stage- there are two related issues that have to be resolved in every case: one is a the characterization of the challenged law, and the other is the meaning of the asserted right. Characterization-A law will offend the Charter of Rights if either its purpose or its effect is to abridge a Charter right. R v Big M Drug Mart [1985] It is very rare that legislative bodies enact laws that have the purpose of abridging a Charter right. ( Lord’ Day Act) Severance- The court can sever provisions enabling it to survive. Reading Down- where language of a statue has two interpretations, one of which would abridge a charter right and one of which would not, the court can read down and select the interpretation that does not abridger. If not, then the review is over-the law must be upheld. If the law is held to derogate from the Charter right, then the review moves to a second stage. The 2nd stage is to determine whether the law is justified under s 1 as a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society. The reviewing court must decide whether the law should be upheld despite the fact that it limits a Charter right. Role of section 33

 



s 33 is an override power which enables the Parliament or a Legislature to enact a law that will override the guarantees in s 2, and s7 to 15 of the Charter. All that is necessary is the enactment of a law contacting an express declaration that the law is to operate notwithstanding the relevant provision of the Charter. The override provision extends to s2 (expression), s7 to 14( legal rights) and s 15(equality). It does not extend to s3-5(democratic rights), s6 (mobility rights) s16 to 23 ( language rights) or s 28(sexual equality). No override is possible with these provisions.

Dialogue with the Legislative Branch second look cases

 



36.6(d) O’Connor courts had to balance between the accuser’s right under s 7 to make full answer and defense and the complainants right under s8 right to privacy and under s 15 equality. After O’Connor, Parliament enacted new laws. The court described this process as a “notable example of the dialogue between the judicial and legislative political questions Operation Dismantle v The Queen (1985) Americans testing cruise missiles in Canada. Court held it was ok. Wilson J, speaking for a unanimous Court on this issue, said that there was no doctrine of political questions in Canadian constitutional law.

characterizations of law 36.8 Interpretation of the Charter

1. 2. 3.

Progressive Interpretation Since a constitution is difficult to amend and its language is broad to accommodate a wide range of facts. It calls for a flexible interpretation. Lord Sankey Edwards v A.G. (1930) ‘a living tree capable of growth and expansion within its natural limits’ Generous Interpretation – Lord Sankey Edwards v AG ( 1930) he said that the provisions of the Constitution Act 1867 should not be “cut down by a narrow and technical construction but should be given a large and liberal interpretation” Purposive Interpretation - this involves 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. (This usually comes with the generous approach)

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4.

Process as purpose- “the Charter guarantees the integrity of the political process itself by enhancing “the opportunities for public debate and collective deliberation. This approach has two advantages. The first advantage is that it supplies a helpful context for interpreting particular guaratantes. The second advantage of the process-based theory of judicial review is that it offers a solution to the problem of the legitimacy of judicial review.

Hierarchy of Rights 2 tiers are created by s33.

1. 2.

common rights ( subject to override) s 2, s 7, s8, s9, s10, s11, s12, s13, s14 “privileged rights” ( not subject to override) s3, s4, s5, s6, s 16, s 17, s18, s19, s20, s21, s22, s23, s28

s28 sexual equality- may be immune from s 1 and s33 so may be at the top of the hierarchy. 

when common rights and privileged rights come into conflict it does not mean that one must take priority over the other.

s36.8 (e) Conflict between rights s25- aboriginal and treaty rights-recognizes the possibility of conflict and provides that the aboriginal and treaty rights are to prevail. s29 recognizes the possibility( 93 vs 15) of conflict and provides that denominational school rights are to prevail. vs 15(discrimination on the ground of religion)

93 (denomination school rights)

sources of interpretation a) b) c) d)

pre-charter cases American cases international sources legislative history

Priority between federal and Charter grounds When a law is challenged both on federal and charter grounds it is the federal ground that is more fundamental of the two. Commencement of Charter Any laws enacted before April 17 1982 will have “no force or effect”

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exception-s13 incriminating evidence that the witness may have given in earlier proceedings. The right may be invoked even if the earlier proceedings took place before April 17 1982.



another example Brenner v Canada ( 1997)- He was born in 1962 that affected his citizenship. He challenged immigration laws in 97 and won.

section 26section 26 makes it clear that the Charter is not to be construed as taking away an existing undeclared rights or freedoms. These could be rights or freedoms protected by the common law or by statue. They exist independently of the Charter.

13. Application of the Charter of Rights and Freedoms Constitution Act, 1982, s.32 Hogg, chapter 37, “Application of Charter” Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, paragraphs 19-52 Greater Vancouver Transportation Authority v. Canadian Federation of Students, 2009 SCC 31, paragraphs 13-24 Step 1: Who can benefit from Charter rights? Benefit of Rights- is a corporation entitled to the benefit of all rights? Section 2, 7, 8, 9, 10, 12 and 17 opens with the phrase “Everyone has the right”

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29 Section 11 and 19 “any person” replaces “everyone” Section 20 uses “any member of the public” Section 24 uses “anyone” Not available to Corporations

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s2(a) “Freedom of conscious and religion” in does not apply to corporation, because a corporation cannot hold religious belief or any other belief.

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s7 does not apply because it is limited to deprivations of life, liberty and security of person which are attributes of individuals, not corporations.

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s9-The right to not be arbitrarily detained or imprisoned

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s10 arrest and detention

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s11 (e) the right to reasonable bail because a corporation cannot be detained, imprisoned or arrested.

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s13 The right to self incrimination

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s14 the right of a witness to an interpreter

A foetus is not a legal person until the child is born by being separated alive from the mother. A foetus is not entitled to the right of life under s7 or any other right under the charter.

Connection to Canada? Yes, s32 requires that there must be action by a Canadian legislative body or government for the Charter to apply. To receive the benefit- no independent requirement (Singh v Minsters of Employment and Immigration (1985) held that anyone who entered the country, however Illegally, was instantly entitled to assert s7 rights which apply to “everyone.” Exception- R v Cook ( 1998)- American citizen arrested in America for Canadian murder. Argued statement made was illegal due in violation to right of counsel. Step Two- Who is bound by the Charter? S32(1) This Charter applies A) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories and B) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. The Charter applies to both levels of government. “Parliament” and “Legislature” make it clear the Charter operates on these powers and any statue enacted by either Parliament or a Legislature which is inconsistent with the Charter will be outside the power of ( ultra vires) the enacting body and will be invalid. If Parliament delegates a compulsion to a body or person then the Charter will apply.



A private corporation/statutory authority is empowered to exercise only the same proprietary and contractual powers that are available to a natural person.



anybody exercising statutory authority GG, ministers, officials, municipalities, administrative tribunals, and police officers are all bound by the Charter. ( NOTE- action taken must be within the scope of that authority)

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30 

a distinctive characteristic is that it involves a power of compulsion that is not possessed by a private individual or organization.



A private person making a citizen’s arrest under statutory authority is subject to the Charter. R v Lerke ( 1986)

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The Charter was applicable to an automobile insurance policy that excluded common law spouses from spousal accident benefits-although both the insurer and the insured were private parties, the terms were stipulated by state. Miron v Trudel [1995]

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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.

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The courts have occasionally have deviated from this position. In one case, it was held that the Charter was applicable despite the absence of any power of compulsion, and in two other cases (Bhindi and Lavigne) it was held that the Charter was inapplicable despite the presence of a power of compulsion.

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Bhindi- a “closed shop” where employer agrees to hire on union workers. Court held that the collective agreement was a private contract to which the Charter did not apply.



Lavigne- SCC held the Charter did apply because the employer was an agent for the province which made the collective agreement a governmental act. If employer had not been a part of the government then the collective agreement would be a private contract and the Charter would not have applied.

Amending Procedures and the Charter Amending procedures that require the concurrence of several legislative houses (s38, 41, 43) are not constrained by the Charter. The limited powers of amendment that are possessed by the federal Parliament alone (s44) and by each provincial Legislature alone ( s 45) are constrained by the Charter References to government will make the charter applicable to governmental action taken under both kinds of common law powers. Does the charter apply to Courts? The SCC has said yes and no. No- Retail, Wholesale and Department Store Union v Dolphin Delivery (1986) Yes – came from in R v Rahey ( 1987) –The SCC had to determine whether a criminal court had denied to a defendant the s 11(b) right to be tried within a reasonable time. Does the Charter apply to Common Law? Hogg 37.2 No- the charter does not apply to common law or at least those rules of the common law regulate relationships between private parties. (Dolphin Delivery(1986) The Charter does not apply directly to the common law (where no governmental actor is involved) Does the Charter regulate private action? No, The Charter regulates the relations between government and private persons but it does not regulate the relations between private persons and private persons. Private action is therefore excluded from the Charter. Does the Charter apply to extraterritorial application? Foreign governments are not bound by the charter. Canada has extradition treaties with other countries. It’s a 2 stage process. First a judge holds a hearing to look at evidence and second the Minster of Justice decides whether to surrender the fugitive to the requesting state. It could possible breach s7 ( fundamental of justice) were to be extradited to a country where he or she may be treated in a fashion that “shocks the conscience)Can v Schmidt [1987] If death penalty is involed (USA) Canada may refuse extradition order. However in Kindler, two fugitives were handed over. Deportation and possible torture would usually be a breach of the Charter Suresh v Canada ( 2002) A letter sent by RCMP to get information about Swiss Bank accounts against criminal in Canada. The criminal argued the letter was a breach of the Charter. Held- the letter had no legal affect and was not subject to the Charter. Schreiber v Canada (1998) 37.2(i) Two police officer travel to New Orealeans and breach criminals right to counsel. Criminal extraidited back to Canada. Held- Was a breach of the

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31 Charter R v Cook(1998) However overruled in Rv Hape (2007). Canada v Khadr ( 2008)- Hape reasoning did not apply to this case. Neither the interviews nor the handing over of records was a breach of the charter. Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, paragraphs 19-52 37.2(c)-It was held that the Charter was applicable despite the absence of any power of compulsion. Issue- Is a hospital bound by a Charter? The hospital did not provide sign language interpretation for deaf people seeking medical services, (breach of s15 equality guarantee) The Hospital Services Act funded the hospitals services program so “it was implementing a specific government policy and program” this contrasted (Stoffman) held the Charter did not apply to hospitals and there “day-to-day operations) 37.2(e) Greater Vancouver Transportation Authority v. Canadian Federation of Students, 2009 SCC 31

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32 14. Override of Rights Constitution Act, 1982, s.33 Hogg, chapter 39, “Override of Rights” Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, Part V, pages 733-745

 s33(1) enables the Parliament or a Legislature to override s2, s7, s8, s9, s10, s11, s12, s13, s14, s15 of the Charter. If a statue contains an express declaration that it is to operate notwithstanding a provision included in s2 or s7-s15 then by virtue of s33(2) the statue will operate free from the invalidating effect of the Charter provision. They can limit or abolish one or more of the rights and freedoms. If the override power does not exist (or not exercised) then such a statue would be valid under within s1. Outside Quebec, the power has been used 3 times.



s33 override power is a sunset clause which will automatically expire within 5 years. 33(4) permits the express declaration to be re-enacted. The sunset clause makes Parliament/Legislatures to re think the laws.

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s33 stipulates that the Parliament or Legislature must “expressly” declare that a statue is to operate notwithstanding a Charter right. It must not be inferred. It becomes a manner and form requirement. It also must be specific as to the statue and must be specific as to the Charter right which is to be overridden.

Judicial Review and s33 39.7 A declaration under s33 will be held to be invalid by the courts if it fails to satisfy the various requirements of s33 that have been described earlier in this Chapter. The declaration must be confined to the rights specified in s 33, it must be specified as to the statue that is exempt from the Charter and as to the rights that are over ridden and it may not have a retroactive effect. To attract a declaration one could apply a s1 approach to strike down statues that were in conflict with the values of a free and democratic society. Governments are reluctant to use s33 because critics Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, Part V, pages 733-745 Charter Rights and Freedoms General a)

The Charter guarantees a set of civil liberties considered so important that they receive immunity from the state. This is usually accomplished through the legislative and executive branches of government which avoid actions which breach the Charter. If a statue is created then reviewed and is found to violate the Charter, then a court will view it to be nugatory.

b)

It is part of Canada’s constitution altered only by a constitutional amendment.

c) It applies to both levels of government. s32(1) d)

It is considered a unifying instrument, adding dimensions of allegiance to Canada as a whole while invoking national standards and unity. 36.4 ISSUES WITH VAGUNESS- The additional Charter grounds of judicial review (JR) has proved to be a substantial expansion of JR. Many Charter rights are expressed vaguely (fundamental justice) and sometimes come into conflict with other Canadian values. Therefore, review under the Charter involves a much high component of policy than other judicial work.

APPROACHING A CHARTER REVIEW s36.4(c) federalism? Judicial Review of legislation/actions under the Charter of Rights is a two stage process.

I.

1st stage of JR is to determine whether the challenged law derogates from a Charter right. To do so, one must characterize the challenged law and clearly understand the meaning of the asserted right. To characterize the law, one must examine the purpose(may state purpose is suspicious purpose??) (rarity ie Lord’s Day Act) or effect of the law to see if either abridges a Charter right rendering it unconstitutional. R v. Big M Drug Mart [1985]

If the law does not breach a Charter right then the law must be upheld. If it does derogate from a Charter right then move to the second stage. II.

The 2nd stage of JR is to determine whether the law is justified under s 1 as a “reasonable limit prescribed by law” that can be “demonstrably justified in a free and democratic society.” (Oakes test below) The reviewing court must decide whether the law should

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33 be upheld despite the fact that it limits a Charter right. Dickson C.J. stated that s1 performed two functions. It not only provides for limits on the guaranteed rights; it also expressly guaranteed the rights and freedoms set out in the Charter. R v Oakes (1986)



Burden of Proof in s1 analysis- The burden is on the person alleging a breach of the charter. If established, then the burden shifts to the government rep. who is supporting the law. R v Oakes (1986) The government must persuaded the court the law is a “reasonable limit in a free and democratic society.”

 

The standard is proof by a preponderance of probability. Evidence- Is “generally” required.

“prescribed by law”- (breach was reasonable) makes it clear that if the act that is not legally authorized it can never be justified under s1. Court decisions usually show the 1. the law is accessible & 2. the law is precise. accessible - statues, rule of common law, regulations will qualify. Irwin Toy v Que [1989] not accessible- directives, guidelines issued by government departments or agencies. Committee for Cth of Can. v Can [1991] This incorporates two crucial values of the rule of law. 1) The law must be adequately accessible to the public and 2) the law must be formulated with precision to enable people to regulate their conduct by it and guidance to those who apply it. “Prescribed by Law” cases

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2 types of statutory conferrals of Discretion- 1. the statue that expressly or by necessary implication authorized a decision that would infringe a Charter right. (Ontario Film and Video, Husky and Ladouceur) 2. the other type was the statute that conferred a discretion in language that was broad enough to encompass decisions infringing a Charter right although the language did not expressly or by necessary implication authorize infringements of the Charter. In this case, the broad language should be read down so it does not infringe the Charter. If it does infringe the Charter then it would be ultra vires. Lamer CJ did point out that the Charter included s1` so a limited Charter could be justifiably. Slaight Communications [1989]

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Discretion by a board or official and a breach - A law confers discretion on a board or official to act in derogation of a Charter right will satisfy the “prescribed by law” requirement if the discretion is constrained by legal standards. Re Ontario Film and Video Appreciation Society

 

Discretion - Organized police car stops discretion conferred by the statue R v Hufskys (1988) Discretion- One police officer stopping cars was “prescribed by law” R v Ladouceur (1990)

Precision- prescribed by law test- “where there is no intelligible standard and where the legislature has been given a plenary discretion to do whatever seems best in a wide set of circumstances.” Irwin Toy v Que [1989] “Void for Vagueness?” It will be void for vagueness if its prohibitions are not clearly defined. It may not provide clear standards to avoid arbitrary and discriminatory applications by those charged with enforcement. No reasonable notice of what is prohibited so citizens can govern themselves. Irwin Toy v Quebec (1989) Court held prohibitions passed as an “intelligible standard” ( prescribed by law test/precision) on a limit on freedom of expression: a) a prohibition on communicating for the purpose of prostitution Re: s193 and 195.1 CC [1990]

b) c) d) e)

a prohibition on communicating hatred or contempt towards minorities Can. v Taylor [1990] a prohibition on political campaigning by civil servants Osborne v Can [1991] a prohibition on the sale of obscene materials R v Butler [1992] a prohibition on tobacco advertising that was “likely to create and erroneous impression” of the health hazards of tobacco Can v JTIMacDonald Corp [2007]

“Reasonably and demonstrably justified”-both must be satisfied. Courts articulate this as a single standard. “Oakes Test” 38.8(b) Dickson CJ There are 4 criteria to be satisfied by a law that qualifies as a “reasonable limit that can be 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. (very rare cases will court object to legislative judgment that the object of law is important enough to limit Charter. 2. Rational connection: The law must be rationally connected to the objective.(very rare that law is not rationally connect to the objective)

3. 4.

Least drastic means: The law must impair the right no more that is necessary to accomplish the objective (most issues) proportionate effect: The law must not have disproportionately severe effect on the person to whom it applies.

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STEP 1 Oakes test - sufficiently important objective The statement of the objective should be related to the infringement of the Charter and supply a reason for infringing on a Charter right. It may be unknown what the legislators objective is with enacting a law. Careful creating objective because it can be a high or low level of generality. ie- stopping immigrants or stopping Chinese Immigrants High level of generality is desirable for the objective but can create problems for the 3rd step-least dramatic means-when time to justify the law. How general should one make the objective-no answer. activism or restraint plays a crucial but inarticulate role in the choice.

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RJR-MacDonald v Canada (1995)-(general objective) If Parliament had chosen to ban the harmful product itself, there would have been no basis for a Charter challenge. Instead, (narrow objective) Parliament chose the lesser path of banning the advertising of the product and exposed it to a Charter challenge.

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Vriend v Alberta (1998)- the legislation did not protect against discrimination on the basis of sexual orientation. The breach of the Charter lay in what was omitted from Act. The province had failed to establish the existence of an important objective that would satisfy the first step of the Oakes test. The limit then could not be justified under s1 and the omission was unconstitutional.

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Rosenberg v Canada (1998)- Income tax Act offended s15 because it discriminated against same sex couple which were not included in the Act.

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AG of Quebec v Ford (1988)- Court held: banning of English had gone too far and could not be justified. No English on signs.

Irwin Toy v Quebec (1998) SCC upheld a Quebec law that prohibited advertising directed at children under 13. It infringed on freedom of expression but was justified by s1. It had a very low level generality objective in that it protected children (vulnerable) from advertising. Importance of Objective Quebec’s “distinct society” Dickson in Oakes stated “respect for cultural and group identity” suggesting the court would be willing to use s1 to enable national norms of the Charter to accommodate at least some of the diversity that is the role of the federal system to permit. R v Big M Drug Mart (1985)- Is the only one case where the courts rejected the legislative objective. No Sunday shopping.

Shifting Objectives

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R v Big M Drug Mart (1985)- Objective did not in fact cause the enactment of the law. Dickson CJ rejected the notion that the purpose of a law might change over time with changing social conditions. Held: Purpose is a function of the intent of those who drafted and enacted the legislation at the time, and not of any shifting variable.

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R v Butler (1992)- original objective was morality and held this was insufficient to limit the Charter but the provision that it promoted sexual equality gave it a “permissible shift in emphasis”. This made the objective into a generality that could be remain constant over time. Hogg- path around the rule against shifting objectives.

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R v Zundel (1992)-held that the prevention of harm from deliberate falsehoods was too general a statement of the law’s objective. Costs/Objectives Is it a possible justification of a limit on a Charter right that will save money?

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Singh v Minsters of Employment and Immig (1984)- Immig argued full hearing would impose an “unreasonable burden” on the resources of government. It was held that a full hearing right had to be provided.

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R v Lee (1989)- reducing administrative inconvenience and reducing expense are not, in my view, sufficient objectives to override such a vital constitutional right. One Cost Case Objective-

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Newfoundland v NAPE (2004)- is the only case where the court accepted that the saving of government money is a sufficiently important objective to justify a limit on a Charter right. Binnie J stated-normally financial considerations would not be suffice but the government was in a financial crisis.

STEP 2 Oakes Test - RATIONAL CONNECTION 38.10  The second step in the Oakes test of justification of a law that limits a Charter right is to determine whether the law is “rationally connected” to the objective of the law.

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RJR MacDonald v Canada (1995Judges will use common sense, reason and logic to determine if a rational connection exists.

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R v Oakes [1986] -Dickson- “There must be a rational connection between the basic fact of possession and the presumed fact of possession for the purpose of trafficking”. The reverse onus clause could not satisfy this requirement because it did not make any stipulation as to the quantity of narcotics in the possession of the accused-possession of a small amount of narcotics does not support inference of trafficking.

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Benner v Canada (1997)- It was a breach of equality rights to impose more stringent requirements for Canadian citizenship on a person born outside Canada before 1977 to a Canadian mother than a person born outside Canada before 1977 to a Canadian father. Government argued that that it was a security measure and it was rational to to screen potential citizens in order to keep out dangerous persons. Court Held: the objective was justified in keeping out dangerous citizens but it was not rational to discriminate against kids from Canadian mothers as more dangerous as ones from Canadian fathers.

The law must be carefully designed to achieve the objective in question, it should not be arbitrary, unfair, or based on irrational considerations. R v Oakes [1986]

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RJR v Mac Donald v Canada (1995)- He concluded that there was no rational connection between the advertising ban and the objective of reduced consumption.

STEP 3 to Oakes Test LEAST DRASTIC MEANS/MINIMAL IMPAIRMENT TEST 38.11

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The law should “impair” as little as possible the right or freedom in question. It should not impair no more than is necessary to accomplish the desired objective. note- in almost any situation it could be easier to come up with a less drastic means. In a federal country like Canada judges have to allow provincial legislatures a “margin of appreciation” so provinces can provinces different social objectives. R v Advance Cutting & Coring [2001]

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R v Valliancourt [1987]-Criminal Code felony-murder rule has been held to be too drastic a means of discouraging the use of weapons by criminals.

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Ford v Que [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.

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Black v Law Society of Alta [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 professions.

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R v Whyte (1988)- upheld a Criminal provision which made person in a driver seat for the purpose of Drunk driving offences the operator of the vehicle. The reverse onus- was a response to a pressing social problem and a minimal interference with the presumption of innocence.

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Canadian Newspapers Co V AG of Canada (1988)- court order banning the disclosure of sexual assault victim so that it would serve the purpose of fostering complaints by victims of a sexual assault.

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BC Gover. Employ. Union v AG of BC (1988)- injunction from picketing at court because “a picket line ipso facto impedes the public access to justice. The injunction limited freedom of expression by the least drastic means because the union was free to picket workplaces.

STEP 4 to OAKES TEST- PROPORTIONATE EFFECT 38.12 This step must require a proportionality between the effects of the measures which is responsible for limiting the Charter right or freedom and the objective which has been identified as sufficient importance.

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R v Edwards Book and Art (1986) -The effects of the limiting measures, must not be so severely trench on individual or group rights that the legislative objective is outweighed by the abridgment of rights.

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Dagenais v CBC (1994)- The element of proportionality should also take into account the “proportionality between the deleterious and the salutary effects of the measures.

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The fourth step is reached only after the means have already been judged to be rationally connected to the objective(2nd step) and the least drastic of all the means of accomplishing the objective( 3 rd step). What the requirement of proportionate effect requires is a balancing of the objective sought be the law against the infringement of the Charter.

All the courts go through this step during cases Hogg believe that it has never been used. An affirmative answer to the 1 st step, (sufficiently important objective,) will always yield an affirmative answer to the 4th step proportionate effect.

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Andrews v Law Society of BC (1989)-Held: Majority struck down citizenship requirement to practice law and applied the Oakes test and stated it should be used for s 15. dissenting- McIntyre J- states that the “Oakes test was too stringent for application in all cases” This was an equality case infringing s 15 where the law society stated that a Canadian citizen can only be a member of the law society. McIntyre J was concerned with legislative bodies had to make innumerable distinctions between groups and individuals between groups and individuals in the pursuit of “desirable social goals” and making these distinctions it was not reasonable to demand a “standard of perfection”.

Section 7



This section guarantees the right not to be deprived of life, liberty, and security of person “except in accordance with the principle of fundamental justice”

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Could a law that violated s7 still be upheld under s 1 as a reasonable limit prescribed by law that could be demonstrably justified in a free and democratic society? Yes.

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BC Motor Vehicle Reference (1985)- Larmer J that stated that in cases arising out of exceptional conditions such as natural disasters, the outbreak of war, epidemics and the like.”

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R V Morgentaler (no 2) (1988)- the SCC held that the abortion offence in the CC infringed on s7 of the Charter and was not justified under s1.

Section 8



This section guarantees the right to be secure from “unreasonable’’ search and seizure. It could be unreasonable within s8 but then found reasonable under s 1. In Hunter v Southham (1984) an elaborate set of requirements for legislation that authorizes search and seizure. Although the words reasonable and unreasonable are the same the test by the sections are different. Hogg agrees with Finkelstein that after a law has been found in violation of s8 , that s1 must become operative to allow the Crown to lead evidence of reasonableness and demonstrable to support the search or seizure.

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36 Oakes Test on the Common Law The Oakes test applies to common law limits on rights. In two cases common law rules in derogation of Charter rights have been held to be justified under s1.

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R v Swain (1991) - Common law rule that a prosecutor may adduce evidence of the insanity of the accused against the wish of the accuse. It was found to violate s7 and failed the least drastic means test. The judge then transformed the rule that evidence of insanity could be given after the accused is found guilty of the offence. Lamer CJ- “No conceptual problem with the Court simply enunciating such a rule to take the place of the old rule.”

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R v. Daviault (1994) SCC held that the common law rule of self induced intoxication was not a defence to a criminal charge offended ss7 and 11(d) of the Charter. It immediately created a new rule of extreme intoxication. It was held that it was justified under s1.

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Hill v. Church of Scientology (1995)- the courts will modify the common law to make it consistent with Charter values.

Remedy Note: The court can sever provisions enabling it to survive (severance) or if two interpretations exist, the court can “read down” a statue and select an interpretation which does not breach the Charter. There is no derogation of individual rights if the individual wins through a reading down of the statue.

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R v Jones (1986) The breach should be more than “trivial or insubstantial”. --------------------------------------------------------------------------------------------------------------------------------------------------

Freedom of Conscious and Religion s2(a) Constitution Act, 1982, s.2(a) – guarantees to “everyone” the “fundamental freedom” of “conscience and religion.” It is subject to s1(the limitation clause).

 “conscience-“ R v Morgentaler [1988] protects systems of beliefs which are not theocentric ( centered on a deity)and which might not be characterized as religious for that reason(or for some other reason)

 “freedom of religions”- R v Big M Drug Mart (1985)- “government may not coerce individuals to affirm a specific religious practice for sectarian purpose”

 definition of freedom of religion- R v Big M Drug Mart (1985)-Dickson J- “is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching or by dissemination.(note: includes religious practices and beliefs) R v Big M Drug Mart (1985)-DicksonJ- freedom of religion included the right to “manifest religious belief by worship and practice” However, “such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own. This freedom does protect Donald v Hamilton Bd Education [1945]- refusing to salute the flag or sing the national anthem

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Saumur v City of Quebec [1953] -distributing proselytizing tracts R v Harrold (1971)- chanting a mantra

Walter v AG Alta [1969]-holding land communally This freedom does not protect- religious groups in such practices as human sacrifice, or refusals of school, or medical treatment of children.  Young v Young (1993)-Harm to children- Father was not allowed to speak about his Jehovah Witness religion to son because it caused fights with mother. SCC held- the right to the freedom of religion did not guarantee any religious activity that would not be in the best interests of the children.  B.R v Children’s Aid Society (1995) Harm to children- parents did not want blood transfusion but the Children’s Aid Society. Wards did it anyway. Court Held: a breach of their s2(a) right but it was justified under s1. “a parents freedom of religion does not include the imposition on the child of religious practices which threatens the safety, health, or life of the child”

 “religious practices”- Syndicate Northcrest v Amselem (2004) building of “succahs” on patios- “all that was necessary to qualify a practice for

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

Charter protection was that the claimant sincerely believed that the practice was “of religious significance” Religious belief was intensely personal and can easily vary from one person to another. The test was wholly subjective. Expert evidence was not necessary because the claimant has to show a sincerity of belief. Even an inquiry into the sincerity of belief was to be “as limited as possible” Individuals change and so can their beliefs. Multani v Commission scolaire Marguerite-Bourgeoys (2006) – Sikh boy wants to wear kirpan to school-The court found that he sincerely believed that he needed to wear it. It was irrelevant that other Sikh’s accept such a compromise. Oakes test made tried to limit his freedom as possible and made him carry it in a wooden sheath sewn inside his pants. waiver of rights

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37  

Syndicate Northcrest v Amselem (2004) – The majority brushed aside the argument of their co-owners that the claimants had waived their religious rights. Iacobucci J- wondered whether a religious practice could be waved at all, he wondered if he by law was sufficiently clear to amount to a waiver. Bruker v Marcovitz (2007)- the husband refused to a Jewish divorce for 15 years. Court held against the husband and upheld an award of damages for breach of contract against the husband. Important were “the public polices of equality, religious freedom and autonomous choice in marriage and divorce.”

RELIGION IN PUBLIC SCHOOLS 42.7  zylbergberg v Sudbury Board of Education (1988)- challenge school opening and closing with “religious exercise consisting of the reading of the Scriptures or other suitable readings and the repeating of the Lord’s Prayer or other suitable prayers. Unconstitutional because it “imposed Christian observances upon non-Christian pupils and religious observances on non-believers.” not violating- could have been teaching class seeing religions in a neutral way.  Denominational schools Private schools may offer religious exercises and instruction and that is a major appeal of private schools to many parents. s2(a) requires a province to permit children to be educated outside the secular public system. Provinces do have the right to regulate alternative schools to ensure core curriculum and standards are met. Protestant and Catholic schools are recognized under s 93 and may receive public funding that is denied to the schools of religious denominations not recognized by s93. 

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religious marriage same-sex marriage reference (2004)- SCC was asked by Parliament if it could enact a bill legalizing same-sex marriage for civil purposes. SCC Held- it could do so under “marriage” in s91(26) of the Constitution Act 1867. It held that nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs. This was ultra vires Parliament. The court then went on to say the invalid section was protected by s2a of the Charter. S2a was broad enough to protect religious officials from being compelled by the state to perform civil or religious same sex marriages that are contrary to their religious beliefs.

note: provincial influence: Edwards Books Dickson J- “the Constitution does not contemplate religion as a discrete constitutional ‘matter’ falling exclusively within either a federal or provincial class of subjects.”  Many of the case seem to be within exclusive federal competence however s92(12) expressly allocates provincial Legislatures the power over the solemnization of marriages and s93(3)makes it clear that provincial Legislatures power over education extends to the establishment of denominational schools.

 Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, per Iacobucci J., paragraphs 1-104  Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, paragraphs 47-60  Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 -------------------------------------------------------------------------------------------------------------------------------------------------Freedom of Expression 43 s2(b)- Charter of Rights guarantees to “everyone” the fundamental freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication. Political speech 43.1b Some form of regulation of political speech should be characterized as the denial of a fundamental freedom of national dimensions which is competent only to the federal Parliament, either under its criminal law power or under its POGG power.

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Alberta Press case (1938)-Cannon J-political discussion is so important to the nation as a whole that it could not be regarded as a value that was subordinate to other legislative objectives; nor could it be regarded as a local or private matter. (s92(16) or as a civil right “in the province”(s92(13)

provincial power over speech 43.1(C)- does not extend to the regulation or prohibition of political ideas, does authorize the regulation of speech on commercial or local grounds. ( ie tort of defamation- provincial jurisdiction-s92(13))

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NS Board of Censors v McNeil (1978)- SCC upheld provincial censorship of films on the basis that the exhibition of films was a business within provincial jurisdiction and censorship was part of a local matter. The censors board power was thus limited to apply moral standards to the depiction of sex and violence, issues of primary local significance.

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AG Can and Dupond v Montreal (1978)- SCC upheld Montreal by-law that imposed temporary prohibition on assemblies, parades, and

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38 gatherings on municipal parks and streets. Beetz “regulation of municipal pubic domain was within the provincial power over local matters. (s92(16)) “none of freedoms of speech, assembly and association of the press/religion is a single matter coming within exclusive federal or provincial competence. federal power over speech 43.1 (d)- federal parliament has power to regulate speech. It also has the power, by prohibition and with sanction to make speech criminal.

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R v Butler [1992]- crimes against sedition, fraud & obscenity

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R v Keegstra [1990] hate propaganda

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Re: s193 and 195.1 communicating for the purpose of prostitution

s2(b)- Charter of Rights guarantees to “everyone” the fundamental freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication. Usually the constitutionally of the law will turn on the outcome of the second stage of review that is the s1 inquiry. Why protect expression? 43.4 The rationale in the constitutional protection of freedom of expression is its role as an instrument in democratic governments. There are basically 3 reasons.

1. It is very important for democracy. -The right of free expression of opinion and of criticism were essential to the working of a parliamentary democracy such as ours. Switzman v Elbling (1957)

2. The freedom is an instrument for truth. On Liberty by Mills and Oliver Wendel Homes argues suppression of opinion is wrong because a market place of ideas can create the truth with history, social/natural science, medicine and all branches of human knowledge.

3. The freedom plays a role of as an instrument of personal fulfilment (must include a communicative purpose) or to allow “personal growth and self realization

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Irwin Toy v Quebec (1989)-they embraced all 3 reasons for protecting freedom of expression.

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R v Sharpe (2001)- instrument of personal fulfilment was discussed by SCC. Child pornography and materials involved made no contribution to democratic government and made no contribution to search for truth.

Meaning of Expression 43.5 –

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Re: s193 and s195.1 SCC has defined “expression”-activity is expressive if it attempts to convey meaning.

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Any activity that is not expression under the Courts definition. Excluded is: “purely physical and does not convey or attempt to convey meaning.”

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All forms of art are communicative-novels, plays, films, paintings, dances, and music. Re: s193 and s195.1

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a speaker’s choice of language is protected Ford v Que [1988]

Criminal expression-

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Prostitution Reference (1990)- court held that communicating for the purpose of prostitution( offence under CC) was protected by s2(b). Majority upheld the law under s 1.

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R v Zundel (1992)- CC offences of publishing hate propaganda and publishing false news were held to be in violation of s2(b) (hatepropaganda not false news was upheld under s1)

Violence

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R v Keegstra (1990) Expressive activity that takes the form of violence is not protected by s2(b).

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Suresh v Can [2002]- a person cannot invoke s2(b) to challenge his deportation from Canada for “conduct associated with violent activity"

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39 Content neutrality 43.5(d)

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R v Keegstra (1990)- governing principle- “is the content of a statement cannot deprive it on the protection accorded by s2(b) no matter how offensive it be”

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R v Lucas (1998)- deliberate falsehoods were protected by s2(b). At issue was the constitutionality of the CC offence of defamatory libel, which made it an offence to publish material that was known to be false and that would expose the victim to hatred, contempt and ridicule. However the court upheld the prohibition against this with s1.

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Canada v JTI –Macdonald Corp (2007) court upheld prohibition of false, misleading or deceptive advertising products. This activity was protected by s2(b) but because false advertising of products bad for health were harmful to health was of “low value” and the prohibition was justified under s1.

ways to limiting expression 43.6 Expression may be restricted in many ways. Most severe is a “prior restraint” on publications. This is a law that prohibits the publication of particular material either absolutely or under a requirement of prior approval by a censor. The courts have take under review a variety of restraints including:

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R v Glad Day Bookshops (2004)- censorship of films

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restrictions on the importation of books and magazines

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Re Southam and The Queen ( No1) (1983) restrictions on access to the courts

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Edmonton Journal v Alta [1989] reporting of judicial proceedings

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Dagenais v CBC [1994]a publication ban on fictional television program

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Thompson Newspapers Co v Can [1998] a prohibition on the publication of public opinion polls in the final three days of an election campaign.

Border control Prohibited material can be controlled at the border with customs officials serving as the censors. The federal Customs Tariff Act used to prohibit the importation of “immoral or indecent” books and magazines. This was struck down to be too vague.

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R v Butler (1992) - SCC held that the definition of “obscene” in the CC was a sufficiently clear standard and served sufficiently justified social purpose to serve as the basis of the criminal offence of possession or sale of obscene materials.

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Little Sisters Book and Art Emporium v Canada (2000)- gay and lesbian communities in Vancouver. Had

Penal prohibition The most common restriction on speech is a prohibition coupled with a penal sanction. (CC offences of perjury or counselling suicide.)Under the Canadian Human Rights Act empowers a Tribunal to make someone cease from acting a certain way.

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Canada v Taylor (1990) If this order has been made, it can made as an order for the Federal Court and then disobedience is then punishable by contempt of court.

Civil prohibition 43.6(d) A prohibition on expression that is sanctioned by only a civil remedy is exemplified by the tort of defamation or a contract to keep some matter confidential. The breach is not a fine or imprisonment but it is an award for damages.

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RWDSU v Dolphin Delivery [1986] Where a civil obligation is created by the common law (law of contract) there will be no Charter remedy because the Charter does not apply to private parties.

Forced expression 43.6(e)

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RJR MacDonald v Canada (1995) Sometimes people are forced to make a statement. –Made cigarette companies to sell cigarettes to display

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40 prescribed warnings of the health dangers of smoking. This was a breach of s 2(b) on the “basis that the freedom entails the right to say nothing or the right not to say certain things” the government had failed to establish the.

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Canada v JTI Macdonald Corp (2007)- a new warning enforced by the Tobacco Act was required to occupy 50% of the warning. It was found to have infringe s2(b) but was justified by s1.

Language Requirement

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Ford v Quebec (1988)-The law did not restrict the content of signs or advertisements, they could contain and message at all but the message had to be in the French language. “it colors the content and meaning of expression”, “the freedom to express oneself in the language of one’s choice.

Search of press premises 43.6(g)

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CBC v Lessard [1991]- SCC reviewed the issue of search warrants to police to search of news corporations. A film crew had video-taped a crime in progress. While suggesting caution in issuing warrants for press premises, upheld the warrants. Placing emphasis that the films had already been shown.

Time, manner and place 43.6(h) The least severe form of restriction on expression is the regulation on the time manner or place of expression.

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Ramsden v Peterborough (1993)- non profit groups complained because a by-law closed off obvious places to place posters. The SCC had taken this into account and held the by law was too broad and interpreted in a narrow targeting legitimate concerns “littering, aesthetic blight, traffic hazards, and impediments to persons repairing utility poles.

Commercial Expression s43.7(a) Commercial expression- is expression that is designed to promote the sale of goods and services. It is regulated for public safety reasons.

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There are two reasons why commercial expression ought to be protected under the guarantee of freedom of expression in Canada and the US. 1.

it does literally fall within the meaning of the word expression and it does make a contribution to “the market place of ideas”.

2.

it is very difficult to distinguish commercial speech from other kinds of speech (political/economic/social) ideas are inherit in commercial speech. In Canada, the balancing of the value of free expression against the value of consumer protection has to take place within s1.

language requirements s43.7(b)

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Ford v Quebec (1988)- language requirement of just French on commercial signs was deemed to be unconstitutional and not justified under s 1.

advertising restrictions

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Irwin Toy v Quebec (1989)- the court upheld a law that restricted advertising to 13 year olds. It was justified under s1.

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Professionals- lawyers, doctors and dentists are typically subject to restrictions on advertising on a varying degrees of stringency. The object is to maintain the dignity of a learned profession.

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Rocket v Royal College of Dental Surgeons (1990)- the regulation prohibited a dentist from advertising office hours and languages spoken. “information which would be useful to the public and present no serious danger of misleading the public or undercutting professionalism”. The court struck down the regulation.

signs 43.7(d) commercial signs are protected by s2(b).

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R v Guignard (2002)- a municipal by-law in Quebec prohibited advertising signs and billboards except in industrial zones of the municipality. The municipality attempted to justify the by-law as a reasonable limit that was designed to prevent visual pollution and driver distraction. Heldthe law was arbitrary, and not a reasonable solution and a disproportionate to any benefit that it secures for the municipality.

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Vann Niagra v Oakville (2003)- SCC accepted a by-law that banned “billboard signs” throughout the municipality. The law clearly stated that

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41 ground signs must be less than 80 square feet. Court felt this left room for commercial expression with smaller signs and that larger signs may likely cause distraction to motorists and visual blight.

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Ont v Mircle (2005)- municipal efforts to restrict roadside advertising in the interests of environmental aesthetics and safety, ran into a Charter barrier.

Picketing 43.8 

Picketing is the activity of members of a trade union on strike, who will assemble outside a workplace often carrying signs.

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The purposes of picketing are: a) advise the public that picketers are on strike b) to dissuade strike breakers from entering the workplace c) to encourage consumers to boycott the goods or services produced by the firm. d) intended to bring economic pressure on employer

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There is also a communicative element to picket lines and its best probably regarded as commercial expression. The picket line may also convey implicit or explicit or even explicit political message.

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Both commercial or political forms of expression are protected.

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Dolphin Delivery Case (1986)-“secondary picketing” union challenged the constitutionality of a injunction that had been issued in BC prohibiting the union from picketing at a workplace that was not their employer. SCC held that the Charter of rights had no application between private parties governed by common law. (it constituted the tort of inducing a breach of contract). McIntyre J went on to state that a prohibition on secondary picketing would be justified under s1 as a measure to prevent industrial conflict from spreading beyond the parties in dispute.

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Vancouver Courthouse Case (1988) picketing courts- without notice to the union issued an injunction to prohibit the picketing of the courts. SCC turned down an application to have injunction removed. There was a legal basis that their actions was a criminal contempt for court. SCC held that the injunction was limiting the freedom of s2(B) but was justified under s 1 “assuring unimpeded access to the courts”.

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Court orders or laws limiting picketing in order to avoid the spread of an industrial dispute, or to facilitate access to a public facility, or to reduce the risk of violent confrontations.

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UCFW v Kmart Canada (1999)- secondary sites with just leaflets union wanted to peacefully, without picketing, handout leaflets at a “secondary Kmart”. Court held that the prohibition of this form of expression was not justified by the legislative goal and was therefore unconstitutional.

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Pepsi-Cola Canada Beverages v RWDSU (2002)-secondary sites, no regulation- unlike the Kmart case, union members were picketing at secondary sites and at places where Pepsi was being sold. And unlike the Kmart case where the BC Labour code regulated secondary picketing, Saskatchewan Labour code did not. Held-that picketing secondary shops peacefully did not peaceful and did not involve the commission of a crime or tort. However, picketing homes of the management personal amounted to the tort of intimidation. Hate Propaganda 43.9

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Hate propaganda is material that promotes hatred against racial and religious minorities. It is prohibited by the CCC making it an offence to “wilfully promote hatred against any section of the public distinguished by color, race, religion or ethnic origin.”

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R V Keegstra (1990) - teacher/ anti Semitic – The court rejected there were any content based restrictions on the s2 (b) right. s2 (b) covered all message “however unpopular, distasteful or contrary to the mainstream.” The court upheld the law under s1. Successful because it was specifically directed at the wilful promotion of hatred against identifiable groups and it was easy to accept the prevention of harm caused by that activity was an important objective.

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R v Zundel (1992) false or truths - the CCC used to contain a prohibition of spreading false news. The SCC decided that the deliberate spreading of falsehoods as well as truths, because the question whether a statement is true or false can be determined only by reference to the content of the statement was protected s 2(b). The false news offence could not be justified under s1. false news struck down because Zundel did not specify any particular type of statement and did not specify what type of injury to the public interest was contemplated. False news was so broad it was hard to that it was difficult to identify an objective that was sufficiently important to justify the limit on the freedom of expression.

Defamation 43.10 

The tort of defamation provides a civil remedy for a person whose reputation has been damaged by false statements made by the defendant.

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42 

Hill v Church of Scientology (1995) SCC refused to alter the common law defamation to protect criticism of officials. The common law of defamation represented an accommodation between competing values of personal reputation and freedom of expression. The court held that false and injurious statements were not deserving of much protection. Reputation, although not explicitly connected to the Charter. Cory J concluded that the law of defamation was not “unduly restrictive or inhibiting”. High damages awards to increase the incentive for caution in criticizing or reporting the activities of public officials but does not involve the media or political commentary about public policies.

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Canada is out of step for the rest of the common law world in its failure to restrict the right of public figures to sue for defamation.

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The common law of defamation is much more forgiving to statements of opinion (or comment) about individuals in the public eye than it is to statements of fact.

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The defence of “fair comment” as long as the opinion is : 1. based on facts 2. is related to the matter of public interest and 3. is one that an honest (but not necessarily reasonable ) person could hold.

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WIC Radio v Simpson (2008)- Host of radio show criticised guest on air implying that she would condone violence against homosexuals. This was false and injured the reputation of the plaintiff, making it defamatory. However, Mair comments were opinion and not fact. Therefore, no demonstration of truth was called for and the defence of fair comment was available.

Pornography 43.11 

attempts to ban the description or depiction of sexual activity have been justified as protecting public morality by preventing the dissemination of material that is morally objectionable.

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The expression cases in the SCC make clear that porn, including obscenity, is protected expression in Canada. Pornography, however defined, can only be identified by reference to the content of the challenged material. Since there is no content-based restrictions on s 2(b) it follows that pornography is covered by the guarantee.

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R v Butler (1992)- TEST Challenged the CCC definition of obscenity was as follows. The SCC held that prohibition did offend s2(b) SCC upheld the law and stated the purpose and the effect of the prohibition was “to restrict the communication of certain types of materials based on their content. “

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Sopinka J- held that “undue” exploitation of sex contemplated material that 1. portrayed explicit sex with violence or 2. portrayed explicit sex without violence, but in a degrading or dehumanizing manner by “placing women and ( men) in positions of subordination, servile submission or humiliation. These forms of pornography when not required by the internal necessities of a serious work of art, were intolerable to the Canadian community, “not because they offend against morals but because they were perceived by public opinion to be harmful to society, particularly women.

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Border Control by federal Customs Tariff Act uses the same definition of obscenity as the CCC.

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Little Sisters Book and Art Emporium v Canada (2000)- Bookstore challenged Butler test and customs. SCC said it was not inappropriate to use a single community standard of obscenity, pointing out that the Little Sisters bookstore was open to the public. The butler interpreted definition of obscenity in the legislation targeted harm in the form of violence, degradation and dehumanization that occur in the context of homosexual as well as heterosexual relationships. The definition was indifferent between homo’s and hetros.

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Sexual films- most Provinces regulate the exhibition and distribution of films by a statutory review board which classifies movies according to a system that will help viewers choose age appropriate films. Not controversial and may not even be a limit on freedom of expression.

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Prior restraint on sexual films- many provinces empower a board to cut or censorship, namely the power the deny approval to exhibit or distribute a film that is regarded as pornographic. Prior restraint is the most severe kind of limit on freedom of expression. Can this limit be justified under s1? Regulation was before Butler test so it was struck down.

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R v Sharpe (2001)- child porn- challenge on the constitutionality of the CC offence of possession of child pornography. Child porn was defined as a picture of a child engaged in explicit sexual activity, a picture of a child’s sexual organ or anal region and written material that advocated sexual activity with a child. Held-followed Butler test and “a found a reasoned apprehension of harm, and that was enough.” Once

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43 harm to children was inferred and failed the Oakes test. Access to Public Property 43.12 Does s 2(b) confer a right to use public property as a forum of expression?

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Private property- the general rule (common law and civil law) is that the owner has the power to determine who uses the property and for what purpose. The owner has the power to determine the extent if at all that the property can be used as the location of signs, placards, pickets, speeches, or other forms of expression.

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Public property- since s2(b) applies to governmental action –s2(b) is potentially applicable.

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Committee for the Commonwealth of Can v Canada (1991)- the question arose whether the manager of Crown owned Dorval Airport in Montreal could prohibit the distribution of political leaflets in the Airport. The SCC held that the prohibition was unconstitutional. Heldthat s 2(b) conferred a right to use public property for expressional purposes; the government did not possess absolute power of a private owner to control access to and use of public property. 3 different approaches that were taken in the Commonwealth case.

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Ramsden v Peterborugh (1993)- SCC struck down a municipal law by-law that prohibited the placing of posters “on any public property” within the municipality. Iacobucci J- recognized that the municipality objectives in enacting the by-law, which are reduce littering, aesthetic blight, traffic hazards and hazards to persons engaged in the repair of the utility pole and justify some limitations on s2(b). However, the complete ban on postering on all public property was a broader than necessary to accomplish goals. The by-law failed the least dramatic-means requirement of s1.

 Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141 strip club with a loud speaker on the street broad casting the show and music. The club was charged with a city by-law prohibited noise from sound equipment heard on the street. The by-law did not contain language stipulating any particular level of noise or any disturbance of neighbours or passerbys. 

McLaclin CJ and Deschamps J- interpreted the by law as applying only to “noise that adversely affects the enjoyment of the environment”

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They held the that the bylaw was authorized by the city’s statutory power to define the prohibit nuisances. Was the by-law contrary to s2(b). In the club the message which was expression was conveyed in a private place. When broadcast on to a street was it a public place.

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Issue-Test Did s2(b) protect expression that was transmitted into the public street?

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McLachlin CJ and Deschamps J now created a single test from the 3 approaches in the Commonwealth case. The reformulated test of the application of s2(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 s2(b) is intended to serve, namely 1. democratic discourse 2. truth-finding 3. self fulfillment.

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To answer the question it was necessary to consider the “historical function” of the place, the “actual function of the place” and “whether other aspects of the place suggest that expression within it would undermine the values underlying free expression”

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In this case, the streets “are clearly areas of public, as opposed to private, concourse where expression of many varieties has long been accepted.” Therefore- the clubs broadcast expression was protected by s2(b) but went on to hold the bylaw was justified under s1.

Access to Courts 43.13 fair trials concerns

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s2(b) expressly provides that freedom of expression includes “freedom of the press and other media of communication.”

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Freedom of press often comes in conflict with the right of persons accused of crime to receive a fair trial.

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example- pre-trial publicity may bias jurors or judges and may damage the reputation of someone exonerated of the charge.

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extensive publicity of pending cases and intemperate criticisms of decisions may draw courts into political controversy and impair their capacity or public perception of their capacity for neutral adjudication.

restrictions on reporting 

freedom of the press includes the freedom to publish reports of proceedings in court.

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44 

Edmonton Journal v Alberta (1989)-press reports on matrimonial lititgation- the SCC struck down an Alberta statue that prohibited (with limited exceptions) press reports of matrimonial litigation. The court held that the statue violated s2 (b): “the courts must be open to the public scrutiny and to public criticism of their operation by the public” With s1- the courts agreed that the protection of the privacy of individuals engaged in matrimonial litigation would justify some limits on the right to report judicial proceedings. It was found the ban to be too wide and cannot be justified under s1.

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Canadian Newspapers Co v Canada (1988) reports on the identity of sexual assault victim-CCC made a provision for court order prohibiting the media from disclosing the identity of the complainant in a case of sexual assault. The purpose was to foster complaints. The order was mandatory if requested by the complainant or prosecutor. SCC held that the CC section was valid. Although it limited the press under s2(b), it was justified under s1. The mandatory ban did not limit the right excessively, because it provided assurance that the complainant that her identify would be protected where discretion would not.

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Dagenais v CBC (1994)- Superior Court had granted an injunction prohibiting the CBC from broadcasting a TV show called the “The Boys of St Vincent” The publication ban did not apply to reports of judicial proceedings because the programme was a fictional one. The injunction was granted to 4 priests who argued under the common law power to prevent “a real and substantial risk of interference with fairness of the trial.” and limited to the period of the four trials. SCC then: held the common law rule put too much weight to the right to a fair trial and no enough weight to freedom of expression. Since it was a limit on freedom of expression, the injunction had to be justified under s 1 of the Charter by reference to the Oakes test. The found that “reasonably available alternatives measures” would not prevent the risk of the fairness of the trial. Alternative measures were “adjourning trials, changing venues, sequestering jurors, allowing challenges for cause and voir dires during jury selection and providing strong judicial direction to the jury. The injunction was not justified.

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R v Mentuck (2001)- accused had been charged with murder. The evidence was collected in a sting operation where under cover cops had pretended to be part of a crime organization. Crown applied to court for ban on Police officers names and a methods used by the police. The accused opposed the order, invoking his Charter right to a “public hearing” under s 11(d) of the Charter as well as s2(b) of the Charter. The SCC held: trial judge correct. Crown had to establish: a serious risk to the proper administration to justice” and that “reasonable alternative measures will not prevent the risk”. SCC found the test was established to the identity of the police officers but not to the methods pose a serious threat to the efficacy of police operations.

RESTRICTION TO ACCCESS TO COURT 43.13(c)

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Edmonton Journal v Alta [1989] Freedom of the press also includes the right to press and the public to be present in court. The right in this case was not affected because the press was not denied access to the courtroom; they were simply prohibited from reporting part of the proceedings.

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Re: Southam and the Queen (No.1) (1993) –Ontario court of appeal had to consider the validity of s12.1 of the Juvenile Delinquents Act which provided that “the trials of children shall take place without publicity” The phrase “without publicity” had been challenged by a newspaper company claiming the freedom of expression entailed a right to access the courts. The court upheld the newspapers claim and struck down the closed courts provision. The court acknowledged that in some cases the interests of the child would justify restrictions on press access to trial, but the court held that an absolute ban could not justify under s 1 because it did not pursue the “least restrictive means” of attaining its objective.

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This was replaced with the Young offenders act.

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Criminal Code- “provides that proceedings confer on the trial judge the power “to exclude all or any members of the public from the court room for all or part of the proceedings” The power can be exercised when a trial judge forms the opinion that access should be restricted in the interest of “the proper administration of justice”.

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In CBC v New Brunswick (1996) – the judge excluded the public and the media from part of the sentencing hearing of a prominent citizen who had pleaded guilty to various sexual offences involving young girls. The exclusion order covered part of the hearing detailing the acts and committed by the accused and it remained in force for about 20 mins. SCC upheld the provision- It was a breach of s2 (b) was upheld by s1. Parliament was pursuing an objective in providing a power to make an exclusion order when openness would be inimical to the administration of justice and because the power was discretionary the provision was no broader than necessary. Southam v Coulter (1990) –pre-inquiry- CC provides for a pre-inquiry by a justice of the peace into whether to commence criminal proceedings against a person against whom an information has been laid. The person accused is not entitled to be present at pre-inquiry and any hearing is closed to the public. In Southam v Coulter (1990) a private citizen had sworn information against several cabinet ministers and senior police officers alleging bribery and corruption. Because of the prominence of the accused, the press was anxious to attend the pre-inquiry into the charges. The court held the protection of a falsely accused person and risk to a properly accused person that the subsequent trial would be prejudiced by pre-trial publicity. Court upheld closure under s1. Re Vancouver Sun 2004- The SCC reviewed a “judicial investigating hearing” that had been held by camera ( closed to public) by a superior court judge The presiding judge closed the hearing to the public and the press. The Vancouver sun appealed after having their application

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45 refused to the SCC. The SCC emphasized test- that the “open court principle” was guaranteed by s2(b) of the Charter. It could be limited under s 1 only if the standards of justification in Dagenis and Mentuck were satisfied. The principles applied to orders limiting access to court proceedings are: 1. 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’ 2. that ‘the salutary effects of the order outweighed the deleterious effects on the rights and interests of the parties and the public.

Access legislative assembly 43.14 New Brunswick Co v Nova Scotia (1993) the SCC upheld a ban on tv cameras in the legislative chamber that had been imposed by the Nova Scotia house of assembly. The reasoning was that parliamentary privilege included the power of a legislative assembly to exclude “strangers” from the legislative chamber.

Contempt of Court 43.15

“civil contempt"- A contempt of court is an act that offends against the administration of justice. A failure to obey a court order is the most common form of contempt. A failure to obey a court order may have no significance beyond the parties to the order, in which case the contempt is a “civil contempt". If the court order resolved a dispute between two private parties , and if it was based on the common law The Charter rights will have no application to the court order, or to any proceedings between the private parties to enforce the order by civil contempt proceedings. “criminal contempt”- is one where the offence to the administration of justice has a public significance that goes beyond the immediate parties. Criminal contempt is a criminal offence at common law that has been preserved in the CCC in s8. Two kinds of criminal contempt is 1. “direct contempt”- is a direct contempt in the face of the court. This is committed by words or acts inside the courtroom that are intended to disrupt the proceedings (ie-where a person insults a judge, interrupts proceedings, refuses to be sworn as a witness or refuses to testify. 2. ”indirect contempt”- is a contempt not in the face of the court. This is committed by acts outside the courtroom that are intended to obstruct the administration of justice ( ie-newspaper that would prejudice the fairness of an ongoing or pending trial. Although criminal contempt is a matter of common law, the public charter makes criminal contempt make the charter applicable. Vancouver case (1988)- An injunction was issued to prevent picketing at the court house. The basis of the injunction was the offence of criminal contempt. The SCC upheld that the Charter applied to an injunction for criminal contempt and that t he injunction was a limit on freedom of expression however it was reasonably justified under s 1 because of the assurance of unimpeded access to the court. Public Service 43. 16 

Public servants throughout Canada are restricted on their partisan political activities.

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The entire public service is a professional career service that serves governments of all governments with equal diligence, and should be impervious to partisan political considerations in the administration of government programmes.

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They should maintain political neutrality for its effective functioning.

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Issue- when neutrality is not accepted- how much political activity by an individual public servant could be tolerated without serious risk to the integrity of the service?

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OPESU v Ontario (1986)- public servants in Ontario challenged provisions in Ontario’s Public service that prohibited public servants from engaging in variety of political services. This was a pre-Charter case and the plaintiff took aim at restrictions on political activity as they precluded federal activity SCC held-that the province had the power to regulate its own public servants and its pursuit of political neutrality the regulation could extend to restrictions on federal as well as provincial activity.

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Osborne v Canada (1991)-federal public servants attacked provisions in the federal Public Service Employment Act that prohibited them from “engaging in work” for or against a candidate for election to Parliament or for or against a federal political party. SCC held-that the act did limit freedom of expression under s2(b) and that it was not justified under s1. This did not pass the least dramatic means test because the Act was over-inclusive. A narrower prohibition would have been sufficient to protect the value of neutrality with less impact.

Mandatory letters of Reference 43.17 

Sometimes a labour board or adjudicator order an employer to give a letter of reference to an employee has been unjustly dismissed.

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This order is a breach of the employers Charter right to freedom of expression

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If the order requires the employer to provide an opinion about the employee that the employer does not truly hold, then the breach of the Charter right cannot be justified under s1.

Elections expenditures 43.18 

restrictions on election spending are indirect restrictions on political speech because expenditures are required to purchase time and space in the media for campaign messages. Restrictions on expenditure are bound to diminish that capacity of candidates to communicate their ideas and the quality of political speech.

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Third party( not candidates) – spending limits on “election expenses” were imposed by the Election Canada Act. Election expenses are defined as money paid “for the purpose of promoting or opposing...a particular registered party or the election of a particular candidate.

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National Citizens Coalition v AG Can (1984)- prohibition against third party spending was a breach and was not justified under s1. The prohibition was struck down.

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Then 1993 Parliament amended the Elections Act replacing the third party spending prohibition with a spending cap. Third parties were permitted up to $1000.

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This cap was then struck down in Somerville v Canada (1996) as a breach of the freedom of expression.

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The 2003 Parliament then amended it from $1000 to $150,000 of which no more than $3000. could be incurred by a single electoral district. This new national limit was less than half the cost of a one page full page advertisement in major Canadian newspaper.

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Were these prohibitions justified under s1? Harper v Canada (2004)- the SCC held: yes they are. No evidence that the voices of the wealthy drowned the others the court found the prevention of this evil was the objective of the legislation and this objective was sufficiently important to justify a limiting freedom of expression.

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Did this statutory restrictions pass the least dramatic means test of the Oakes test? SCC majority held: the restrictions did not go to far. They allowed third parties to make modest means of advertising “to inform the electorate of their message in a manner that will not overwhelm candidates, political parties or other third parties.”

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Spending during referendums: SCC also had to look at third party spending during a referendum. Quebec Referendums Act –that when a referendum was held in the province each side of the campaign had to organize into yes or now committees. No expense could be incurred by outside of these two committees.

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Libman v Quebec (1997) - the court held it was a breach of freedom of expression and was not justified under s 1. It failed the least dramatic means test because it left no room for people who may want to argue for abstention.

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After this, the legislature made it similar to the Canada Election Act allowing third party expenditures up to $1000.

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Hogan v Newfoundland (2000) - a referendum was held by the Government of Newfoundland to amendment the constitution to take away financial support to denomination schools. 72% said yes. Roman Catholic supporters opposing the amendments seek compensation because the government had spend more on the NO side then they did on the yes side. The argued that the government was under a constitutional responsibility to equalize payments for both sides. trial judge awarded demands but decision was reversed in appeal. The right to freedom of expression did not demand spending limits the fact the government spent more did not breach the no sides right.

Voting 43.19 The right to vote is guaranteed by s3 of the Charter but the right is limited to elections of the members of the federal House of Commons and of the provincial legislative assembly’s.

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Haig v Canada (1993)- A Canadian citizen who had slipped through the cracks of the residency requirements found himself unable to vote in a federal referendum to approve amendments know as the Charlottetown accord. Being unable to rely on s3 he argued that the failure of the federal parliament to make provision for him to vote was a breach of freedom of expression, guaranteed by s2(b) of the Charter. The SCC had agreed that the casting of the ballot in a referendum was a form of expression but went on to hold that s2(b) does not impose on the federal/provincial governments a positive duty to consult citizens by referendum. No right to vote!

Access to Government 43.20

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47 Native Women’s Assn of Canada v Canada (1994) argued that the Government of Canada had denied their right to freedom of expression by providing funding /consulting with to other aboriginal groups but not to the NWAC over the Charlottetown accord. SCC held that: according to the principle in the Haig Case- “generally the government is under no obligation to fund or provide a specific platform of expression to an individual or group.” Baier v Alberta (2007)- question of whether Alberta could enact a law that disqualified teachers and other employees of school boards from serving as trustees of school boards. The SCC held- upheld the law. The law did not prevent the teachers from expressing opinions on any issues relating to education ( or anything else) its purpose was to prevent them to be serving on school boards. -------------------------------------------------------------------------------------------------------------------------------------------------Life Liberty and Security of Person Constitution Act, 1982, s.7 Hogg, chapter 47, “Fundamental Justice” Distribution of powers over legal rights 47.1  

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The term legal right does not have a precise legal or popular meaning. “Legal rights” depends upon the characterization of each law. In characterizing a law, the laws impact on civil liberties is generally irrelevant or at least of only subordinate importance. s91(27) Consti Act 1867- are the federal powers in relation to criminal law or criminal procedure. (various stages of arrest, trial, acquittal or conviction and sentence are federal) s92(14) Consti Act 1867- giver provincial authority over the administration of justice. This includes the constitution of criminal and civil courts, civil procedure, and extends to some aspects of the investigation and prosecution of crime.

Constitution Act, 1982, s.7 –protects the right of “everyone” to life, liberty and security of the person” and imposes the requirement that any deprivation be “in accordance with the principles of fundamental justice”

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one right vs. two right interpretation - Hogg argues that the best view of s 7 is not it confers the two rights interpretation because it gives s7 a extraordinarily broad sweep. A better view is that s 7 only confers one right. The right not to be deprived of life, liberty or security of the person except in accordance with the principles of justice. Two right version - 1. a right to “life, liberty and security of the person” that is unqualified except by s1 of the Charter and 2. a right not to be deprived of life, liberty and security of person except in accordance with the principles of fundamental justice. This two rights interpretation is supported by an English version but not by the French grammatical version of this section. The Canadian Bill of Rights s1(a)- guarantees : the right of the individual to life, liberty and security of person and enjoyment of property, and the right not to be deprived thereof except by due process of law... The Canadian Bill of Rights s2(e)- provides that no law of Canada is to be construed or applied so as to: deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations... s. 7 of the Charter- can be seen as an amalgam of these two provisions but a narrow scope than either s1(a) which extends to the “enjoyment of property” or s2(e) which extends to any determination of “rights and enjoyment” s7 does not include property and does not include the determination of rights and obligations respecting economic interests.

Application of s 1 - 47.3

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Could a law that did not conform to the principles of fundamental justice be upheld under s1? Could a violation of fundamental justice ever be reasonable limit that can be demonstrably justified in a free and democratic society? Wilson J of the SCC –expressed the view several times that the answer to this view would be no: a violation of fundamental justice could never be justified under s 1.

Who can Benefit of s 7 - 47.4 a)

Corporations  s7 is applicable to “everyone” a word that is normally apt to include a corporation as well as an individual.

 Irwin Toy v Que [1989] - SCC held that the context of s7 “everyone” does not include a corporation because an artificial person (a b)

c)

corporation) is incapable of possessing “life, liberty or security of person” because these are attributes of a natural person. Immigrants  Singh v Minster of Employment and Immigration (1995) “everyone” includes immigrants to Canada. Wilson J said that s7 right could be asserted by “every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.  This means that immigrant who claimed refugee status was entitled to a hearing before an official or tribunal to determine their case. Arguing that this would be too expensive or a strain on the system was rejected by the court. foetus

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R v Morgentaler (No 2) “everyone” in s 7 does not include a foetus and so a foetus is not entitled to a right to life. The SCC had in fact used s7 to strike down restrictions on abortion because it infringed the security of the person of the mother. Burden of s7- 47.5  section 7 like other Charter provisions applies only to “governmental action” as defined in s32 Charter. Life -47.6

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s7 protects “life, liberty and security of person” So far as “life” is concerned , it is rarely discussed because governmental action rarely causes death. Obvious case is the death penalty-but this removed from Canada’s Criminal Code in 1976. Chaoaulli v Que [2005]- The SCC held- that excessive waiting times for treatment in the public health care system of Quebec increased the risk of death, and were in violation of the right to life (as well as security of the person).

Liberty 47.7 a) physical liberty  s7 protects “life liberty and security of the person”. What is included in “liberty”?  Re: ss 193 and 195.1 CC -“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. Examples that are not a deprivation of liberty:  Re BC Motor Vehicle Act [1985] –a law that imposes only a penalty of a fine is not a deprivation of liberty. (Larmer left open “imprisonment as an alternative to non-payment could be)  Buhlers v BC (1999)-the suspension of a driver’s license is not a deprivation of liberty.  Medovarski v Canada [2005]-the deportation of a non-citizen is not a deprivation of liberty, attracting the rules of fundamental justice because a non-citizen has no right to enter or remain in Canada. Examples that are deprivations of liberty:  R v Beare [1988]- statutory duty to submit to finger printing and imprisonment are deprivations of liberty.

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Thompson Newspapers v Can [1990] – to produce documents is a deprivation of liberty Stelco v Can [1990]- to give oral testimony a deprivation of liberty

R v Heywood [1994]-to not loiter in or near school grounds, playgrounds, public parks and bathing areas is a deprivation of liberty. Will a change in the terms of a criminal sentence amount to a deprivation of liberty? Cunningham v Canada (1993)-the amended Parole Act cancelled the conditional release and required the continued detention of the prisoner for the rest of the prisoner’s sentence. The SCC held that- although the amendment of the Parole Board had not had the affect of lengthen the defendants 12 year sentence it had altered the manner in which the sentences was to be served. Serving time on mandatory supervision was a lesser deprivation of liberty that serving time in prison. This change in the law should be treated as the deprivation of liberty interest making s 7 applicable. However, the court went on to hold that it was not a breach of the principles of the fundamental of justice. The defendant remained in prison.  May v Ferndale Institution (2005)- the court reviewed a decision by the correctional service to transfer a prisoner to a min. security prison to a medium security prison. Court followed Cunningham and held the decision to transfer the prisoner was a deprivation of his “residual liberty” so s7 applied. The court held the failure of the Correctional Service to fulfill a statutory obligation to provide information as to the reasons of the transfer was not important. (Stinchcome rules of disclosure did not apply outside criminal proceedings where the innocence of the accused was at stake.) It did make it unlawful so the prisoner was sent back to min security.  Blencoe v BC (2000)- Bastarache J- “asserted that liberty in s 7 is no longer restricted to mere freedom from physical restraint”; it applies whenever a law prevents a person from making “fundamental personal choices.”  Mr Blencoe’s liberty had been impaired because of the unreasonable delay he waited for the BC Human rights Commission took in disposing sexual harassment charges against him. Court held:”in these circumstances, the state has not prevented [Mr Blencoe] from making any fundamental personal choices.” Economic Liberty  The framers of Canada’s Charter of Rights had deliberately omitted any reference to property in s7 and they also omitted any guarantee of the obligation of contracts. The replacement of “due process” with “fundamental justice” was intended to banish Lochner from Canada.  Re ss 193 and 195.1 CC - s7 –liberty must not be interpreted to include property, not including freedom of contract and not including economic liberty.  Gosslin v Que per Larmer J- “ the restrictions on liberty and security of the person that s7 is concerned with are those that occur as a result of an individual’s interaction with the justice system and administration. “ –  because s7 leads of a group of rights s7-14 which deals with the criminal justice system-search, seizure, detention arrest trial, testimony, and imprisonment it seems that Larmer J’s line of reasoning excludes economic liberty. 

b)

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49 “Liberty” does not include:  R v Edwards Books and Art [1986]-liberty does not include the right to do business, by selling goods on Sunday.

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c)

Re ss 193 and 195.1- right to work? the regulation of trades and professionals should be regarded as restrictions on economic liberty that are outside the scope of s7. political liberty  liberty does not include freedom of conscience of religion, freedom of expression, freedom of assembly, freedom of association, the right to vote and be a candidate for election or the right to travel. These rights are all guaranteed elsewhere in the Charter of Rights and should be excluded by s7.

“Security of Person” 47.8

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s 7 protects “life , liberty and security of person”? What is included in “security of the person” Canadian Foundation for Children, Youth and the Law v Canada (2004)- challenge on a defence in the CC which provides that a teacher or parent can use “reasonable” force “by way of correction” against children in their care. This exposed children to what amounted to assault. Court held:- had no difficulty in finding that the provision adversely affected the security of person of the children to who it applied ( The court upheld the provision on the ground that there was no breach of the principles of fundamental justice. R v Morgentaler (no.2)- SCC held that CC restrictions on abortion which required that an abortion be approved by a therapeutic abortion committee of an approved hospital were unconstitutional. Evidence showed that hospitals would not set up the required committees and caused delays in treatments which increased the risk of health to the mother. Held- The risk of health that was caused by the law was deprivation of security of the person. Chaoulli v Quebec (2005) SCC held that excessive waiting times in the public health care system of Quebec caused unnecessary pain and stress to those waiting surgery and other medical procedures. This was a breach of the right to security of person (as well as right to life, since the risk of death was sometimes increased by prolonged delays. Facts- Quebec law forbade the purchase of private health insurance. The law was designed to make the public health system exclusive. All 7 judges were unanimous that the law caused a breach of security to person, there was an even 3-3 split on whether the law was a breach of the principles of fundamental justice under s7. The one judge confined her decision and held it was a breach to the Quebec Charter of rights which does not use the term “fundamental justice”. This became the majority position. Held- The Quebec law was struck down but does not go beyond this province. Bans on the purchase of private insurance or other impediments to access to private health care exists in other provinces and territories, but it will take another case to determine whether they are a breach to the Charter.

Does security go beyond health and safety? Yes.  R v Morgentaler (no.2)-3 out of 5 judges were willing to find deprivation of security of the person, not only a risk to the woman’s health created by the law related delays, but also in the loss of her control over the termination of the pregnancy. This means that security of person would include some requirement of personal autonomy at least with respect to medical treatment.  confirmed in Rodriguez v BC (1993)- a person who was terminally ill challenged the constitutionality of the CC offence of assisting a person to commit suicide. It was argued that that the law deprived a disabled person of the ability to commit suicide which was not an offence. 8 of 9 judges of the SCC held that it was a deprivation of security of the person under s7. However the plaintiff was not successful because 5 of 9 judges held the law did not offend the principles of justice.  New Brunswick v G.(J) (1999)- the 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.” s7 was applied and the removal proceedings had to be conducted in accordance with the principles of fundamental justice.  Winnipeg Child and Family Services v KLW (2000)- the SCC held that a warrantless apprehension of a child deemed to be “in need of protection” was a breach of the parents security of the person, although a majority of the Court held the principles of fundamental justice had not been breached. A post apprehension hearing satisfied the principle of fundamental justice.  Blencoe v BC (2000) – SCC held- that state induced psychological stress would be a breach of security of the person, but decided that the Commission’s delays did not have a sufficiently severe impact on the applicant psychological state to qualify the breach. Bastarache Jsaid the decision should not be construed as a ruling that delays in Human rights proceedings can never trigger an individual’s s7 rights.  Gosselin v Quebec (2002)- it was argued that s7 imposed on government a positive obligation to provide adequate welfare benefits to those who were without other sources of income. Her challenge was on age discrimination s 15 and on s7 and she failed on both grounds. Court held s.7 has not been extended to economic rights nor has it been interpreted as imposing positive obligations on the state to ensure that each person, enjoyed life, liberty or security of the person. Property

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s7 protects “life, liberty and security of person” The omission of property from s7 was a striking and deliberate departure from the constitutional texts that provided the models for s7.

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50    

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The omission of property rights from s7 greatly reduces its scope. It means that s7 affords no guarantee of compensation or even of a fair procedure for the taking of property by government. It means that s7 affords no guarantee of fair treatment by courts, tribunals or officials with power over purely economic interests of individuals or corporations. Omission of property- from s7 also ensures a continuing role for the Canadian Bill of Rights which continues to apply to federal(not provincial laws) McBain v Lederman (1985)- is another example of the broad reach s2(e). Issue-whether the federal Human Rights Code violated fundamental justice in the provisions establishing an adjudicatory tribunal. It was argued that this mode of appointment gave rise to a reasonable apprehension of bias because the commission was also in effect the prosecutor of the complaint. The Court relied on s2(e) because the tribunal had the power to make determination of the respondents rights and obligations. Civil litigation before courts/tribunals is usually about money or property or other purely economic interests. s7-does not apply to this type of litigation but Canadian Bill of Rights s2(e) does apply so long as the dispute is governed by federal law. Authorson v Canada (2003)- Veteran challenged a provision in the federal Department of Veterans Affairs Act that barred any claim to interest on moneys held by the Department on behalf of disabled veterans. The plaintiff became competent and the dept. paid him money that was owed to him which had accumulated over a 40 year period. No interest was paid on it. Plaintiff sued for interest. plaintiff invoked s1(a) and s2(e) of the Canadian Bill of RightsThe SCC denied relief under both provisions. s1(a)- plaintiff argued that he had been deprived the “enjoyment of property” without “due process” because parliament had take his right away to a fair hearing. Court refused to impose any additional procedural obligations on Parliament “ the only procedure due any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it received a Royal Assent Court also refused to interpret s1(a) as imposing a substantive obligation to provide compensation for expropriated property. 2(e) impose its right to a “fair hearing” Fundamental justice 47.10

a)

b)

procedure and substance  A deprivation of life, liberty, or security of the person is a breach of s7 of the Charter only if the deprivation is not in accordance with the principles of fundamental justice.  the phrase appears in s2(e) included with fair hearing giving it a meaning similar to natural justice.  The rules of natural justice are rules of procedure only: they require a hearing, unbiased adjudication and fair procedure. Due process was omitted from s7 in order to make it did not give rise to a Canadian doctrine of substantive due process.  BC Motor Vehicle Reference (1985)- the SCC held that fundamental justice did indeed cover substantive as well as procedure justice. Larmer J gave three reasons for extending fundamental justice beyond procedure. 1. the first reason is that the words “fundamental justice” are literally broader in scope than other formulations that could have been used such as natural justice. 2. The second reason is the expansions of the concept of fundamental justice has the effect of expanding the protection of life, liberty and security of person. 3. The third reason for extending fundamental justice beyond procedure into substance is much more dubious held that s7 is a kind of residuary clause for all legal rights. s8-14 are merely “illustrative” of deprivations of fundamental justice that could be easily be caught by s7 since s8-14 go beyond merely procedural guarantees it follows that s7 also must go beyond a merely procedural guarantee.  2 problems with the “residual theory” of s7- a) Wilson J pointed out that ss8-14 of the Charter are not in fact drafted to be illustrations of s7 but are designed to stand alone. b) second difficulty is the fact s8-14 are not confined to life liberty and security of person as 7 is. Thus s8, protects property from unreasonable search or seizure , is not premised on a denial of life, liberty or security of the persons; this is why s8 protections for “any person charged with an offence” definition of fundamental justice  BC Motor Vehicle Reference – only definition of fundamental justice. Larmer J assertion that the “ principles of fundamental justice are to be found in the basic tenets of the legal system”  Larmer J- “those words (fundamental justice) cannot be given any exhaustive content or simple enumerative definition but will take on concrete meaning as the courts address allege violations of s7”  there is very little agreement on what the “basic tenants of the legal system” example- Thompson Newspapers v Canada (1990) – five judges gave five different opinions as to the applicable basic tenets of the legal system.  Cunningham v Canada (1993)- SCC had to decide whether it was breach of the principles of justice occurred. McLachin J made no reference to the basic tenets of the legal system. “ The question is whether, from a substantive point of view, the change in the law strikes the right balance between the accused interests and the interests in society”  In other words when a law deprives an individual of life, liberty or security of the person, the courts must determine whether Parliament or Legislature struck “the right balance” between the competing values that the legislators had sought to reconcile.  Rodriquez v BC (1993)- Sponkia J asserted that the principles of fundamental justice must be “fundamental” in the sense that they would have general acceptance among reasonable people. McLachlin J, L’Heureux –Dube J and the substantial agreement of Cory J-in their view a law would violate fundamental justice if the law was “arbitray” or “unfair”  R v Malmo-Levine (2003) marihuana- The court denied that “striking the right balance” between individual and societal interests was

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51 a requirement of a fundamental justice. The court created 3 requirements for a rule to qualify as a basic tenet of legal system and therefore as a principle of fundamental justice .  First- the rule must be a “legal principle”. Second- there must be a “significant societal consensus that is fundemenal to the way in which the legal system ought to fairly operate.” Third- the rule must be capable of being “identified with sufficient precision to yield a manageable standard.  Harm Principle- The SCC held that the harm principle did not satisfy the 3 requirements. Therefore Parliament was open to impose a sentence of imprisonment for crimes that did not involve harm to others. (cannibalism, bestiality duelling and consensual incest.  R v Parker (2000)- marihuana for medical use Could possession be prohibited for those who had medical use for the drug? –Ontario Court of Appeal answered no. The possession of marihuana could not be prohibited (with imprisonment as a possible penalty) if the prohibition did not include an exception for those with medical needs. Court suspended for a year and the federal government responded with Marihunana Medical Access Regulations.  Hitzig v Canada(2003)- challenge on medical marihuana regulations- Ontario Court of Appeal held they were unconstitutional because it did not provide a legal source. “To require those persons to purchase the drug from criminals was “inconsistent with the fundamental principle that the state must obey and promote compliance with the law” The court struck down these new regulations.  Canadian Foundation for Children, Youth and the Law v Canada (2004)- challenge on a defence for an assault charge for teachers and parents. It was argued that the best interests of the child was a principle of fundamental justice and that the exposure of children to corrective force was not in their best interests. The SCC had accepted the 3 requirements of fundamental justice that was stipulated in Malmo-Levine. “Residuary Theory”- the effect of the residuary theory is that the precise language of s8 to 14 becomes relatively unimportant. • Thomson Newspapers v Canada (1990)-SCC held that-“the principles of fundamental justice in s7 could still contain some “residual” elements of the right against self-incrimination. The scope of the right was not taken from the precise language of s11 and 13 but from the vague language of s7 which refers to the principles of fundamental justice. 5 different theories as to what additional contents s7 7 added to s11(c) and 13 I. a right to remain silent II. a right not to give an incriminating answer III. a right to have all evidence derived from the compelled testimony excluded from the subsequent proceedings IV. a right to have only that derivative evidence that could not have been discovered apart from the compelled testimony excluded from subsequent proceedings V. no right additional to s11(c) and 13. all judges s/he were articulating a principle or tenant of the justice system . Absolute and Strict Liability 47.11 a) categories of offences R v City of Sault Ste Marie (1978) Dickson divided offences into 3 categories. 1) offences of absolute liability-which the offence consists of doing the prohibited act. There is no requirement of fault, either mens rea or negligence. They could convicted even if they had no intention of breaking the law and also exercised reasonable care to avoid doing so. 2)offences of strict liability- the offence 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 ( due diligence) to avoid committing the crime. There is a fault requirement of negligence because the accused is liable only if he or she cannot prove the exercise of reasonable care. 3) offences of mens rea- in which the offence consists not only of doing the prohibited act, but of doing so with the intent (mens rea) of intending to break the law ( or being reckless as to whether or not the law would be broken) b) absolute liability offence This came under the BC Motor Vehicle Reference (1985)-driving without license – the subsection stated the offence was an “absolute liability offence for which guilt is establish by proof of driving whether or not the defendant knew of the prohibition or suspension. SCC held-that absolute was a denial of the principles of fundamental justice-since it carried a short term of imprisonment and a conviction would mean a deprivation of “liberty”. The offence was declared to be in violation of s7 and of no force of effect.

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R v Hess(1990)-another absolute liability case which challenged the statutory rape provision in the CC. It 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 14 years of age or more” This offence was absolute liability since it was no defence for the accused to show that he reasonably believed his act to be innocent. The offence carried a penalty of imprisonment. SCC held- that the penalty of imprisonment was a breach of fundamental justice in violation of s7. the result was not to strike down the offence entirely. R v Pontes (1995)- the SCC had to classify an amended version of the offence in the BC Motor Vehicles Act of driving while prohibited fro driving. The CC stated- “automatically without notice” prohibited from driving for 12 months. Cory J- held that the quoted phrase meant that a duly diligent driver could be unaware of the prohibition and could innocently commit the offence of driving while prohibited. However, the amended act stated “no person is liable to imprisonment for an absolute liability offence” Therefore no penalty of imprisonment for the offence of driving with prohibited-therefore no breach of liberty under s7. Pontes- makes clear that s7 has no application to large fines because liberty is not affected. As long as imprisonment is not a penalty Parliament can still make offences of absolute liability.

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For regulatory offences that are punishable by fine it is an issue of statutory interpretation not constitutional law as to whether the offences of absolute liability or of strict liability. However because of the injustice of punishing a person who has acted without fault and has taken reasonable precautions to comply with the law the presumption is of strict liability.  Levis v Tetreault –if the offence is a regulatory one, strict liability complies with s7 of the Charter. Another option is to use the power of severance ( or reading in) to convert the offence into one of mens rea. What saved the offence is R v Hess is the power to use severance to eliminate the penalty of imprisonment. c) Strict Liability Offences R v Wholesale Travel Group (1991)- in this case the accused corporation was charged with the offence of false or misleading advertising under the Competition Act. The act made it clear that there was no requirement of mens rea, the only defence was one of due diligence (reasonable care) and the burden of proving due diligence rested on the accused.  Accused relied on BC Motor Vehicle Reference Act to argue a violation of fundamental justice and the crown agreed that a fault element for an offence carrying a punishment of jail was needed by was satisfied with the defence of due diligence. SCC held- that the crime was not a “true crime” but merely a regulatory offence or public welfare offence. Characteristics of a “true crime” was that it was “inherently wrongful conduct” A regulatory offence was designed to establish standards of conduct for activity that could be harmful to others. Fundamental Justice is satisfied if there is a defence of reasonable care ( due diligence) and the burden of proving reasonable care ( to the civil standard) may be cast on the defendant.  R V Hundel (1993)- the accused had driven his truck through a red light and collided with another car killing the other driver. He argued that he did not have time to safely stop through the amber light so he felt it was the right course of action. Court sited – Wholesale Travel and stated that “in appropriate context, negligence can be an acceptable basis of liability which meets the fault requirement of s7 of the Charter. All that the crown needed to establish was an objective departure by the accused from the appropriate standard of care. The fact that the accused believed that he was driving safely was irrelevant.  R v Nova Scotia Pharmaceutical Society (1992)- the SCC rejected a challenge to the Competition Act offence of conspiring to lessen competition unduly. The Act expressly eliminated the element of mens rea by providing that it was not necessary for the prosecution to prove that the accused intended that his actions would have the effect of lessening completion unduly. This did not violate s7. “Ought to have know” was enough to satisfy the minimum requirement for s7.  R v Finlay (1993)- the SCC reviewed the CC offence of storing a firearm “in a careless manner”. The max penalty was 2 years. Was negligence a sufficient fault requirement for the CC. Larmer CJ repeated the dictum in Hundal that- “ in the appropriate context negligence can be an acceptable basis of liability which meets the fault requirement of s7. Murder 47.12  murder used to include the felony murder rule. There was no requirement that that the accused intended to cause death or that he knew that his actions were likely to cause the death or even that he ought to have know that his actions were likely to cause the death. All that was needed as proof was the felony, the use or carrying of the weapon and the causing death.  R v Valliancourt (1987)- charge with murder as the result of a poolroom robbery. The accused knew the accomplice was carrying a gun but did not foresee that a death was likely to occur (subjective) and there was reasonable doubt that he “ought to have know” (objective standard). SCC held that the felony-murder rule was a violation of fundamental justice under s7 of the Charter.  R v Martineau (1990)- the SCC held that a high level of mens rea (subjective forseeability) that was required by s7

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This was ruling brough challenge to s21(2) CC which defines a “party to offence” which uses the phrase “knew or ought to have known” R v Logan ( 1990)- two accused robed a store with a gun in which a third person shot and injured the clerk. The two were convicted as parties under s21(2) to the crime of attempted murder. SCC held- since the attempted murder was one of those few offences for which s7 stipulated a requirement of subjective mens rea and because the “social stigma associated with the conviction” Offences for which subjective mens rea is constitutionally required: I. murder( Martineau) II. attempted murder (Logan) III. war crimes and crimes against humanity committed outside Canada( R v Finta [1994]) Hogg disagrees with the use of “social stigma associated with the conviction”  radical constitutional consequences flow from such a vague, unproved and unprovable notion as social stigma. He believes that that certain offences carry constitutional requirements of subjective mens rea then those offences should be identified, not by reference by names Unforeseen Consequences 47.13 R v De Sousa(1992)- the accused through a bottle in a fight and injured an innocent bystander. The accused neither intended nor foresaw the injury. What was the mental element for causing bodily harm? Sopinka J- held that there was “no constitutional requirement that intention, either on an objective or subjective basis extended to the consequences of unlawful acts in general”

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Sopinka J in DeSousa distinguished the line of cases involving murder and attempted murder on the basis that murder and attempted murder were among “those few offences which due to their stigma and penalty require fault based on subjective standard” “it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused.” R v Creighton (1993)- SCC had to determine what was the mental element of the offence of manslaughter by unlawful act. The court upheld the constitutionality of the CC requirement of objective foresight of bodily harm as the mental element of unlawful act manslaughter. Foresight

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53 of the death was not required, despite the fact that the maximum penalty for manslaughter was imprisonment for life. Involuntary Acts 47.14 a) automatism  A tenant of the legal system should not be convicted of a criminal offence of an act that is not voluntary. The courts have become persuaded that a person can engage in very complex behaviour while in a state of “automatism” and that automatic behaviour cannot be an offence because it is involuntary.  R v Parks (1992)- accused drove 23 km and killed his mother in-law and injured his father in law.. He was charged with murder and attempted murder. His defence of sleep walking which was supported by 5 psychiatric exports. The also stated that he was not of a disease of the mind.  R v Stone (1999)- accused after taunting by his wife, stabbed her to death. he argued he was provoke which suffered a “psychological blow” causing him to commit the act. He was found guilty of manslaughter instead of murder. He appealed that he should have been acquitted. SCC held- this defence was not available because a “normal” person would not have shift into a state of automatism as the result of the wife’s taunts. b) duress  The CC by s17 makes duress an excuse for the commission of an offence: an offence committed “under compulsions” is excused from criminal liability. However, s17 stipulates that the compulsion must take the form of “threats of immediate death or bodily harm from a person who is present when the offence is committed .  R v Ruzic (2001)- accused arrived at airport with heroin strapped to body. She was charge with false passport and drugs. She pleaded guilty to both crimes but claimed that she was forced to commit the offences because her mother was going to be harmed by a man in Belgrade. This was believed by the jury who acquitted her. The Crown appealed on the ground of limiting conditions of s17 were not satisfied. Corwn argued thatsince the offences occurred in Toronto the threats were no “immediate” and he was not “present when the offences were committed” The SCC affirmed the acquittal of the accused s7 of the Charter was applicable because the offences carried the penalty of imprisonment Lebel J- held it would be a breach of the principles of fundamental of justice to convict a person of a crime when that person had not acted voluntarily. c) Intoxication  R v Daviault (1994)- the SCC held that s7 requires that extreme intoxication be a defence to a criminal charge. If it requires specific intent extreme intoxication may negative the additional intent and lead to the acquittal of the accused but the accused would normally escape criminal responsibility because the accused could still be convicted of a lesser offence (simple assault).  SCC held- that s7 and 11(d)- of the Charter were offended by the rule that self induced intoxication was no defence to a criminal charge. Cory J- held that under s7 the requirement of mens rea for a crime of general intent could only be the intention to commit the prohibited act. The accused must establish the defence of extreme intoxication on the balance of probabilities. By reversing the usual onus of proof in a criminal case, Cory J created a new rule  R v MacAskill (1931)- that the defence of intoxication required evidence that the accused was so intoxicated that he was incapable of forming the required specific intent.  R v Robinson (1996)- the SCC turned its attention to offences of specific intent. This was a murder case which required specific intent. The accused had been drinking and he hit the head of the victim with a stone. SCC Held- If a drunkenness raised a reasonable doubt as to whether the accused in fact possessed the requisite specific intent, the accused was entitled to be acquitted even if there was no doubt that the accused possessed the capacity to form a requisite intent. Overbroad Laws 47.15  R v Heywood (1994) –SCC established a new doctrine of “overbreadth” which applies to a law which is broader than necessary to accomplish its purpose. Overbreadth is a breach of the principles of fundamental justice and therefore a basis for finding of unconstitutionality in a law that affects life, liberty or security of persons. In this case anyone previously convicted of sexual assault was not allowed to be “found loitering in or near a school ground, playground public park or bathing area. “ In this case the law was overboard because: 1. its geographic scope was too wide, because parks and bathing areas include places where children were not likely to be found 2. its duration was too long because it applied for life without any possibility for review and 3. the class of persons to whom it applied would not be continuing danger to children.  Overbreadth is not the same as vagueness . Overbreadth law- can be perfectly clear and still use means that went further than necessary to accomplish the law’s purpose.  Overbreadth and Vaguness have this in Common :either deficiency results in the invalidity of the entire law, including the part that is consistent with the purpose of the law and clear in its application.  a law which restricts freedom for no reason offends the principles of fundamental justice. Overbreadth-raises serious practical and theoretical difficulties and confers exceedingly discretionary power of review on the court.  Ontario v Canadian Pacific (1995)- offence under EPA for discharging smoke into the air. Lamrer CJ solved the problem by invoking the presumption of constitutionality and adopting an artificial narrow interpretation of the Act –exempting the wild  R v Clay (2003) possession of marihuana- law criminalizing marihuana which includes the penalty of imprisonment and therefore impaired liberty under s7) offended the principles of fundamental justice because it was overbroad. The SCC did not agree. It was obvious that the law caught people who were in possession of marihuana in the privacy of a home who were not about to drive a car or operate machinery.  R v Demers- a committee was designed for people who were found to be unfit for trial. This committee would review their case annually. People unfit were getting trapped in the system because there was not power by the courts to order a discharge even if the person was not a public threat. Since the law made no provision for an absolute discharge for the permanently unfit accused. It was overbroad.

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54 Disproportionate law 47.16  R v Malmo- Levine (2003)- the SCC established a new doctrine of “disproportionaity” which is a breach of the principles of fundamental justice. This doctrine of disproportainalty requires the court to determine: 1) whether a law pursues a “legitimate interest” and if it does 2) whether the law is grossly disproportionate to the state interest Arbitrary laws 47.17  Chaoulii v Quebec ( AG) [2005]- a challenge was brought forth on Quebec’s prohibition on the purchase of private health care insurance. The purpose was to make public health care exclusive. On the issue of fundamental justice the court was evenly divided. For McLachlin CJ and Major J ( writing with the agreement Bastarache) the Quebec law prohibiting health insurance offended the principles of fundamental justice because it was arbitrary. They gave a different test of disproportionality laid down in Malmo-Levine. A law is arbitrary if it “lacks a real connection on the facts to the purpose the law is said to serve.” This was the case here because evidence showed that other developed countries with universal public health care plans permitted parallel access to private care without injury to the public health care system. Vague Laws 47.18  a law violates the principles of fundamental justice which causes a breach of s 7 if the law is a deprivation of life, liberty or security of person. A vague law offends two values that are fundamental to the legal system. First, the law does not provide fair notice to persons of what is prohibited which makes it difficult for them to comply with the law. Secondly the law does not provide clear standards for those entrusted in enforcement which may lead to arbitrary enforcement.  Prostitution Reference (1990)- SCC acknowledged that the prohibition was “broad and far reaching, denied that it was so vague that a court could not give “sensible meaning to its terms.  United Nurses of Alberta v Alberta (1992)- The SCC held that it was not a requirement of fundamental justice that a criminal offence be codified in stator form. Although the elements of the common law offence were not as clear as could be achieved in a statutory definition, the offence was neither vague nor arbitrary”’  R v Nova Scotia Pharmaceutial Society (1992)- the word “unduly” was attacked under s7 on the ground that the word was unconstitutionally vague. This argument was rejected by the SCC.  Ontario v Canadian Pacific (1995)- EPA and the use of the words “contaminent”, into the “natural environment” and “for any use that can be made of it” were so vague that the offence was void for vagueness under s7. a) standard of precision what is the constitutional standard of precision that a law must meet in order to avoid the vice of vagueness?  R v Nova Scotia Pharmaceutical Society (1992)- The law should be “intelligible” and should sufficiently delineate “an area of risk” and whether the law provides “an adequate basis for legal debate” ( Hogg sees this last one least useful.)However the SCC has employed in subsequent cases. Gontheir J- there is no requirement that the law be “absolute certain” because no law can meet that standard.  Canadian Foundation for Children Youth and Law v Canada- “reasonable force” by way of correction in s43 of the CC. It appeared vague and many lower courts that found that s43 did not provide meaningful standards. The SCC ignored this body of law and instead relied on expert evidence. “on the basis of expert evidence”- so interpreted she held that s43 “sets real boundaries and delineates a risk zone for criminal sanction” that is sufficiently clear standard to avoid the charge of unconstitutional vagueness. b) application to other Charter rights  R v Morales(1992) the SCC held that the doctrine of vagueness also applies to s 11(e) of the Charter. Larmer CJ for the majority of the court said there cannot be just cause for denial of bail within the meaning of s11(e) if the statutory criteria for denying bail are vague and imprecise. s8 and s9 can be expected to be vague as well. Wrong Laws 47.19  R v Gamble (1988)- the person was tried and convicted of murder and imprisoned under laws that had been enacted. She should have been tried with offences which existed during the time of the offence. This affected her eligibility for parole. Wilson J- for the SCC held- the continued detention of the prisoner without the eligibility for parole was a breach of s7. A basic tenant of the legal system is that” an accused must be tried and punished under the law in force at the time the offence was committed. She was eligible to apply for parole immediately. Right to Silence 47.20

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R v Hebert (1990)- the accused had been arrested and advised of his right counsel. He did retain counsel and advise the police he did not want to make a statement. He then was placed in custody with an undercover cop to whom the accused made an incriminating statement. SCC heldthat the statement had been obtained in breach of the Charter. In effect the police had used a trick to subvert the accuser’s election not to make a statement to the police. The reason why it was under s7 and not s10(b)(right to counsel) is because court took the right to silence route. Note: If it was a voluntary statement to another prisoner or even an undercover cop the result would have been different. R v Broyles (1991)- was another jailhouse confession. The accused made a statement while in custody to a friend who visited him in the jail. The friend had been recruited as police informer. The difference between Herbert and this case is that it was a police informer. SCC held it was abreach to his right and the statement was excluded. s7 contains residual of the right to silence which supplements s11(c) and 13. s11(c) which applies only to the accused in a criminal trial (making the accused a non-compellable witness) is supplemented by s7 which applies

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to any witness in any proceeding and which makes the witness non-compellable if the true purpose of calling the witness was to obtain incriminating evidence against the witness. R v Fitzpatrick ( 1995) concerned the requirement of the federal Fisheries Act that records be kept by fishers and supplied to government on a daily basis detailing their daily catch of fish. Could these records be used in trial as evidence against him? SCC held- there was no breach of s11(c) and no breach of s7 because in the context of the regulatory scheme to which the accused had voluntarily submitted by engaging in the business of fishing fundamental justice did not prove an immunity against the use of statutory compelled information. A statutory compulsion to give testimony is a deprivation of liberty under s7. The s7 right against self incrimination may give rise to 3 different kinds of immunity. a) “use immunity”- which protects the witness from having the compelled testimony used to incriminate him or her in a subsequent proceeding. This is provided to a witness who testifies in any proceedings by s13 and to persons other than witness by s7 –illustrated by R v White ( 1999) b) “derivative use immunity”- which protects the witness from having the compelled testimony used to obtain other evidence (derivative or secondary) to incriminate him or her in a subsequent proceedings unless the derivate evidence is discoverable independently of the compelled testimony. c)-the third is an exemption from testifying in the first place which applies if an attempt is made to use a statutory compulsion to obtain testimony from the predominate purpose of obtaining evidence for the prosecution of the witness this is illustrated in R v Jarvis ( 2002) R v White ( 1999)- whether reports made to police under the compulsion of a provincial law could be used against the person reporting them. SCC held- because the accident reports were provided under compulsion their admission into evidence against the accused would violate a principle of fundamental justice under s7 –a principle against self-incrimination. The court distinguished on the grounds that driving is not freely undertaken in precisely the same way as one is free to participate in a regulated industry such as commercial fishery. R v Jarvis ( 2002)- Tax related case. The taxpayer was vulnerable to the penalty of imprisonment meaning s7 was applicable. SCC held-the CRA during the investigative phase-tax officials could not continue to use the audit power to collect evidence for criminal prosecution. If more material was needed it would have to be done through a search warrant. Section 13- which applies only to self incriminatory evidence given by a witness (making it inadmissible to incriminate the witness in other proceedings)

FAIR TRIAL 47.21 a) The right to a fair trial  The principles of fundamental justice obviously require that a person accused of a crime receive a fair trial.  s7 overlaps with s11(d)- which also guarantees a person charged with an offence “ a fair and public hearing by an independent and impartial tribunal”  s7 is wider than s11 (d) because it also applies to civil/administrative proceedings where they affect life liberty and security of persons.  example- New Brunswick v G.(J).[1999]- SCC held: that an application by the state to remove children from the custody of a parent affected the parent’s security of the person and made s7 applicable. Principles of fundamental justice required a fair hearing be provided and that the parent be provided with state funded representation.  Winnipeg Child and Family Services v KLW ( 2000)- held that the warrantless apprehension by the state of a child “in need of protection” was not a breach of the principles of fundamental justice. A requirement of a warrant issued by a judge or a hearing before a judge prior to apprehension would lead to delay which would create a risk of harm to the child. The principles of fundamental justice were satisfied by a post-apprehension hearing.  extradition of a fugitive- to face trial in another country starts with the arrest of the fugitive and a hearing before the judge to determine whether the requesting state has sufficient evidence. This process is a denial of liberty to the fugitive and the hearing must conform to the principles of fundamental justice. The fugitive is not entitled to a full-dress criminal trial because determination of guilt will be dealt with later.  extradition judge- all that s/he can do is determine whether the requesting state has a prima facie case against the fugitive.  fugitive is entitled- to know the case against her , she is not entitled to the full disclosure of all relevant prosecution evidence that is requested in a criminal trial.  “No” to the US- Despite the fact the US had made out a prima facie case against the fugitives, the SCC stayed the proceedings on the grounds that the extradition of the fugitives in light of these threats would be a breach of the principles of fundamental justice.  Right to a fair trial does not mean that all existing rules and procedure are constitutionalized.  Court upheld these so they would reduce the stress on a young witness and enhance the reliability of their evidence.

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example –R v. L ( D.O.)[1993] SCC upheld a provision of the CC that allows for the videotaping of the evidence of a witness who is under the age of 18 so that the trial the witness need only adopt the contents of the tape instead of going over the whole story again. R v. Levogiannis [1993]- SCC upheld another provision that allows a witness under the age of 18 to testify from behind a one-way screen so the witness cannot see the accused (although the accused can see the witness)

Note: if the fairness of the trial is prejudice-court has taken comfort from the fact the trial judge had been given a discretion to deny the use of a

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56 video tape or screen in that case. Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350  the SCC took a more radical departure from the traditional trial format.  Issue- was the process for the issue of a “security certificates” under the federal Immigration and Refugee Protection Act. The Act empowered 2 minsters to issue the certificate declaring a non-citizen named in the certificate to be a threat to national security. The certificate authorized the arrest and detention of the person. The certificate was then brought to a judge to review on the standard of reasonableness then if found to be reasonable the person would be deported.  The Problem- the person named in the certificate at no stage known the nature of the case against him. There was no hearing on the original issue. The judge was also under obligation not to disclose to the name person the information upon which the certificate had been based.  SCC held that- the issue of the security certificate was a deprivation of liberty under s7 and that the review process did not satisfy the principles of fundamental justice because it did not provide the named person a fair hearing.  McLachlin CJ- acknowledged that- “the procedures required to meet the demands of fundamental justice depend on the context.” and she acknowledged “ national security considerations can limit the extent of disclosure of information to the affected person” but she held “ the secrecy required by these scheme denies the named person the opportunity to know the case put against him or her and hence to challenge the government’s case.  She then applied the Oakes Test and s1 of the Charter.  There was no doubt that protecting secret information respecting intelligence sources and national security and withholding of such information was rationally connected to the objective. But… the law failed the least dramatic means test because Parliament could have adopted better procedures to protect secrecy that were less intrusive on individuals rights.  She pointed to a system of “special counsel” that had been used in Canada was used in other countries in national security cases.  She did not say this was the only way stating “precisely what is to be done is for parliament to decide.” b) Full answer and defence 47.21(b) R v Seaboyer ( 1991)- SCC held- that both s7 and 11(d) guaranteed an accused “the right to present full and answer and defence” and that this right was reduced by a “rape shield” provision in the CC-which restricted the right of a person charged with a sexual assult to cross examine the complainant about their past sexual activity McLachlin J- this provision would occasionally have the effect of excluding relevant evidence that was required to enable the accused to make full answer and defence. R v Cook(1997) – Crown calling witness The SCC rejected the argument that the inability of the accused( assault) to cross examine his accuser was a denial of the accsued’s right to make full answer and defence. SCC Held the Crown has discretion as to the witness ( did not call victim) it chose to call and the accused right to make full answer and defence was protected by his evidence the jury had found the accused guilty. The argument that the accused would be surprised at trial was rejected because of pre-trial right to full exposure. SCC acknowledged – there might be rare cases where the suppression of potentially exculpatory evidence by the Crown amounted to an abuse of process, but the onus is of proving misconduct lay on the accused and had not been discharged in this case R v Stinchcombe ( 1991)-SCC held that pre-trial disclosure by the Crown, of all information relevant to the conduct of the defence is a constitutional obligation, entailed by the accused to make a full answer Crown has no duty to disclose irrelevant information or privileged information. The crown retains discretion as to the timing of disclosure, since premature disclosure could impede investigations. d) Pre-trial disclosure by third parties R v O’Conner ( 1995) R v McClure ( 2001) R v Brown ( 2002) e) preservation of evidence R v La ( 1997) R v Carosella ( 1997) f) statutory limits on pre trial disclosure R v O’Conner ( 1995) FAIR ADMINSTRIAVE PROCEDURES 47.22 BC Motor Vehicle Reference

 Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, per McLachlin C.J./Major J. and Binnie/Lebel JJ., paragraphs 102-279  Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 56

57 Equality 55 Distribution of Powers - 55.1 

Distribution over egalitarian issues presents 2 issues: 1.

Is the extent to which level of government may deny or limit egalitarian values (ie. enacting laws that discriminate on the basis such as race, national origin, sex)

2.

Is the extent to which each level of government may promote egalitarian values (ie. by the enactment of laws that forbid discrimination in employment, accommodations, and facilities open to the public.)



Before the s15 Charter, the power to enact discriminatory laws was dictated by Parliamentary sovereignty. The Parliament or a Legislature could discriminate as pleased in enacting competent legislation. (A.-G. Can v Lavell [1974] - ie discrimination on sex-had been upheld.)



Some heads of power have enabled the courts to introduce egalitarian values into decisions reviewing the validity of statues on federal grounds. (ie-s91(25) influenced Union Colliery v Bryden (1899)- to strike down a BC law prohibiting Chinese miners. It was held that the pith and substance of the law was the imposition of disability on aliens and naturalized subjects.



The existence of federal legislation power over “Indians, and lands reserved for Indians” (s91(24)-precludes provincial laws which singled out Indians for special treatment.



Note: what is denied to one level of government is allowed to another.



before s15- discrimination against aliens and naturalized objects and against Indians was the competent to the Federal Government



Real threats to equality- is not from legislative action and official action but from discrimination by private persons such as employees, trade unions, landlords, realtors etc.



Economic liberties and freedom of property and contract-come into direct conflict with egalitarian values in all Canadian jurisdictions.



s92(13)- provincial power over property and civil rights



s91(27)- can use criminal law power to outlaw discriminatory practices.

Canadian Bill of Rights 55.2



s1(b) of the Canadian bill of Rights- guarantees “equality before the law”



this applies only to the federal Parliament was superseded by s15 of the Charter which applies to federal Parliament and provincial legislatures.



R v Drybones(1969)- SCC held once that the equality clause in s 1(b) of the CBR had the effect of nullifying a statutory provision. It struck down a provision of the Indian Act that made it an offence for “an Indian” to be intoxicated off a reserve. Ritchie J majorityheld that the racial classification of Indian was a breach of s1(b).

Challenges to Indian Act



after Drybones, the Indian Act was challenged twice and both were unsuccessful.



A.G. Can v. Lavell (1973) - the majority of the Court upheld the provisions of the Act that defined the term Indian. although the Act employed patrilineal concept that discriminated against women.



A.G Can. v Cunard (1975) - the court upheld provisions of the Act that established a special regime of succession to the property of deceased Indians-although the Act required estates to be administered by an official of the Department of Indian Affairs rather than a relative of the deceased.



Both cases, Drybones was distinguished on implausible grounds and equality was defined in a variety of inconsistent ways.

57

58 definition of equality- “valid federal objective”



after the Indian Act cases the SCC began to develop a consistent definition of equality under s1(b).



The definition 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)



R v Burnshine (1974)- this doctrine enabled the Court to uphold sentencing provisions that exposed young offenders to longer sentences than adults. They were to serve “intermediate” sentences in special correctional faculties for rehabilitation. This was a valid federal objective that justified the age based discrimination.



Bliss v A.G. Can.(1975)- Court upheld a provision of the Unemployment Insurance Act that denies benefits to a women whose employment has been interrupted by pregnancy. An unspecified valid federal objective was invoked to justify the denial of benefits in that situation



MacKay v The Queen(1980)- Court upheld a provision of National Defence Act that exposed members of the armed forces to trial by military tribunal for offences for which civilians would be tried in ordinary courts. Because the NDA had been enacted for a valid federal objective, it followed that any differentiation between members of the armed forces and other citizens could not be attacked.

“valid federal objective” doctrine is unsatisfactory doctrine unsatisfactory for 2 ways:



1. the Court never clarified what the term meant, although the court always accepted that a statue containing a provision did pursue a valid federal objection.

2. The Court (Bliss & MacKay) did not relate the valid federal objective to the particular provision that was under challenged. If the Act as a whole pursued a valid federal objective-then every detailed provision was invulnerable to attack on equity grounds.



s.15 Charter- with the coming into force of s.15 of the Charter it has made s 1(b), although still in force, irrelevant.



The Court has turned over a new leaf in apply s.15 of the Charter.



The valid federal objective has not been banished and new doctrine which is less deferential to the legislative will exists.

American Bill of Rights 55.3



14th amendment to the Constitution of the US provides that no state shall deny any person within its jurisdiction “the equal protection of the laws”



the guarantee of equal protection has been held to be incorporated in the due process in the 5th amendment.



Both levels of governments are now bound by a guarantee of “equal protection of the laws”



Us has no equivalent to s 1 under which reasonable rights are authorized.



doctrine of “reasonable classification - Supreme Court of US- has developed the doctrine of “reasonable classification” which saves those legislative classifications that are reasonable means of achieving a legitimate legislative purpose.



applying doctrine of “reasonable classification” 2 tier standard of review

I.

Upper tier- The standard of review is strict scrutiny for laws that classify by race or national origin, Court describes as “suspect” classifications. Also laws that abridge a “fundamental right” such as included the right to vote or the right of interstate travel. Broawn v Board of Education (1954) struck down laws on race school desegregation case. (examples- affirmative action programs, university admission policies with racial quotas.)

II.

The Lower tier- The standard of review is more relaxed and is described as a “minimal scrutiny”. The judicial review under the equal protection clause includes all legislative classifications that are not “suspect” and that do not affect fundamental rights. It is

58

59 sufficient if there is a rational basis for the classification. Example- Mass. Board of Retirement v Murgia (1976)- which the Court upheld a state law requiring police officers to retire at the age of 50. This satisfied the rational basis test. Note: no equal protection cases fit the neat 2 tier analysis. Classifications of sex use to be lower tier is now in the upper tier.( leading case- Craig v Boren ( 1976)) s15 of the Charter 55.4



s15 confers rights on an “individual”. Equality is expressed in 4 different ways: I.

equality before the law

II.

equality under the law

III.

equal protection of the law

IV.

and the equal benefit of the law



This section also guarantees against “discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability.



These are the named grounds of discrimination(often called- “enumerated grounds” Hogg states this is not accurate)



This makes clear, by the phrase “in particular”, that the named grounds are not exhaustive.



s15(2)-authorizes the creation of affirmative action programmes that have the purpose of ameliorating the conditions of disadvantaged groups.



s32(2) Charter delayed the coming into force of s15 for 3 years after coming into force for the rest of the Charter. That brought it into force on April 17 1985. The purpose of the delay was to provide time for the federal government and each province to review its body of laws and make those amendments to bring conformity with s 15 Charter.



The review did take place in all jurisdictions except Quebec.

Application of s15 55.5 a) “Individual”- The benefit of the equality rights in s15 is conferred upon “an individual”. The word individual probably excludes a corporation. This does not mean that a corporation cannot invoke it. b) “Law” in s 15- The burden or equality rights are imposed by s32 on the Parliament of Canada and the Legislatures and government in each province. s32 includes all actions taken under statutory authority.



Does “law” in s 15 have the effect of narrowing the application s 15 so as to exclude governmental action that is not law?

-

R v S.(S.) (1990)- did not apply to an exercise of discretion conferred by law, but only to the enabling law itself. Therefore, the AG of Ontario’s decision not to establish a diversion programme could not be impeached under s15.

-

R v S.(G.) (1990)- the Court also rejected an equality attack on a diversion programme that had been established on the ground that the programme was an exercise of discretion under the Act.



Then, 6 months later, the Douglas/ Kwantlen Factutly Assn v Douglas College [1990]- SCC had asserted that the requirement of “law” in s15 is satisfied by conduct taken under the authority of law. This case had no mention of the two S cases.



It seems likely that the reference “to law” in s 15. does not have the effect of excluding anything from the application of s15.



s15 applies to the same range of governmental action as other Charter rights



this range is defined in s32 Charter

c) Private Action- s32 of the Charter excludes private action from the application of the Charter.

59

60 

This means that s15 does not apply to private acts of discrimination (hiring male employees) or a landlord rents only to white people, or a shop keeper refuses to serve children.



In all Canadian jurisdiction Human Rights Codes have been enacted that prohibit private acts of discrimination.



Blainey v Ontario Hockey Association (1986)- The Charter can have an indirect impact on private action. Facts- Human Rights Codes themselves are subject to the Charter of Rights. Girl who was excluded from Hockey team challenged a provision of the Ont. Human Rights Code- that permitted single sex sports teams. Usually prohibited discrimination by sex but allowed single sex teams. The Ontario Court of Appeal held that it was a breach of s15 because it denied to the plaintiff the benefit of the Human Rights Code by reason of her sex. The effect of nullifying the exception which gave the plaintiff a remedy under the Human Rights Code. The Charter did not apply to the hockey association but did apply the Human Rights Code.

argument used in Blainey was tried again in;



McKinney v University of Guelph (1990)- The Charter can have an indirect impact on private action. A professor did not want to retire at the mandatory age of 65 so he challenged the law. The university was a private body so the Charter did not apply. Ontario human rights code permitted the mandatory requirement so he argued the Code was a breach of s15 age discrimination. SCC held- that it was a breach of s15 but went on to state that it was justified under s1.

Equality 55.6 a) Four equalities of s15- the reason for having four formulations of the idea of equality was to reverse the restrictive interpretations placed by the SCC on the phrase “equality before the law” which is in the phrase in s1(b) of the Canadian Bill of Rights.



s15- equal before and “under the law” – The words “under” were intended to abrogate a suggestion by Ritchie J in Lavell vase that judicial review on equality grounds did not extend to the substance of the law but only to the way in which it was administered.



s15- speaks of “equal benefit of the law”- this was intended to abrogate a suggestion by Ritchie J in the Bliss case.that the legislative provisions of “benefits” was not subject to equality standards.



s15-uses the phrase “equal protection of the law” This is very similar to the phrase “equal protection of the laws” which is the phrased used in the 14th amendment in the Constitution of the US.

b) Absolute equality- what is meant by a guarantee of equality? Every statue or regulation employs classification of one kind or another for the imposition of burdens or the grant of benefits. Laws never provide the same treatment for everyone. (Income Tax laws higher for higher earners) c) Aristotle’s definition- he said “justice considers that persons who are equal should have assigned to them equal things.” and “there is no inequality when unequal are treated in proportion to their inequality existing between them.” 

persons are alike should be treated alike and people who are different should be treated differently in proportion to the difference.



laws that single out groups for special treatment do not offend the principle of equality if they employ classifications that appropriately distinguish between who are not alike, and if they provide for appropriately different treatment for those who are not alike.



a person who commits a crime deserves punishment where an innocent person does not.



Trouble with Aristotle’s definition:

-

it is stated at too high of level of generality to be useful.

-

it provides no criteria to determine whether one person is “like” another or who should be compared to whom

-

it provides no criteria to assess the appropriateness of different legislative treatment of those who are not alike.

-

Commentators have described equality as an “empty idea”. The idea is empty in the sense that it cannot be applied without first working out the criteria of likeness and like treatment and the idea of equality cannot by itself supply those criteria.

d) Similarly Situated- Before the Andrews Case, the courts were apply Aristotle’s principle of equality test known as the “similarly situated” test. 

according to the test- a denial of equality was made out if it could be sworn that the law accorded the complainant worse treatment than

60

61 others who were similarly situated.



Andrews, McIntyre said “this test is seriously deficient” and that it could be used to justify laws that discriminated against Jews or Blacks.



He stated that it should not longer be used at least “as a fixed rule or formula for the resolution of equality questions.”



Equality is an inescapable “comparative concept”



Catholic Children’s Aid Society v S. T ( 1989)- Gibson “no court facing an equality issue can avoid somehow determining whether the person or group relying on s 15 is sufficiently similar to other persons or groups in relevant respects to merit equal treatment”



The similarly situated test is not wrong in principle. Its vice is that it 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 who are not similar.



The test is deficient in the sense that it provides too little guidance to a reviewing court.

e) Formal and Substantive equality – common criticism of the similarly situated definition of equality is not that it provides too little guidance to a reviewing court (or is “empty”) but it can mask discrimination occurring indirectly. 

an apparently neutral law may have a disproportionate effect on a particular group which as a consequence is being treated unequal.



a law that prohibited women from serving in the police would have a direct effect against women.



a law framed in gender neutral language that prohibited persons under 6 feet in height from serving in the police force would have an indirect effect of discriminating against women because most women are not that tall.



a theory that only covers the direct case is described as “formal equality” and is often attributed to the “similarly situated” definition.



conventional wisdom is that formal equality is “trivial and even insulting”- Wintemute- about sexual discrimination points out that formal equality “has tremendous material and symbolic value which only those who have been denied can appreciate it.”



Wintemute- “formal equality” is not enough. It is also necessary to guarantee “substantive equality” meaning by that term a theory of equality that will capture indirect as well as direct discrimination.



what substantive law requires is that the identification of persons who are similarly situated must take into account of contextual factors related to race, sex and disability (examples) making a person’s situation sufficiently different to require different treatment in order to be treated fairly.

f) reasonable classification- American courts have found criteria in equality in a doctrine of reasonable classification. If a law pursues a legit state purpose, employs classifications that are reasonable related to accomplish that purpose, there is no violation of equal protection. 

this concentrates on the purpose of the law and test the likeness by reference to that purpose.



The Amercian doctrine of reasonable classification operates at a very high level of generality.



views differ on how the law is to be ascertained and how perfectly the law’s classification must fit its purpose.



They have different standards of review that impose strict standards and min. standards.

g) valid federal objective – mentioned earlier. s 15 of the Charter made clear that it is not given the same min. effect as the Canadian Bill of Rights.

h) early application of s15. – lawyers were unaware how to use this section. The volume of cases was truly disturbing.



Andrew case the SCC started to develop rules to control the floodgates opened by s15.



Andrews- SCC held that s15 was a prohibition of discrimination and that discrimination could only be based on a ground listed in s15 or that was analogous to those listed in s15.

61

62 

This ruling had the merit of avoiding an inquiry in the abstract concept of equality and further merit of excluding from equality review those statues that do not employ the listed classification, or analogous classifications.

Discrimination 55.7 

This section guarantees equality but also “without discrimination” and in particular discrimination based on sex, age, mental or physical disability.



s 15 should be read as prohibiting only those violations of equality that amount to discrimination.

What does discrimination mean? Judicial Interpretation –Definition of Discrimination 1.

The challenged law imposes ( directly or indirectly) on the claimant a disadvantage ( in the form of a burden or withheld benefit) in comparison to other comparable persons;

2. the disadvantage is based on a ground listed in or analogous to a ground listed in s15; and 3. The disadvantage also continues an impairment of the human dignity of the claimant.



a claimant who persuades the Court of these 3 elements is entitled to a finding of discrimination which means that the challenged law is in breach of s15



The burden then shifts the government to justify the discriminatory law under s1.

Listed or analogous grounds 55.8 a) requirement of a listed or analogous ground - the restriction of s 15 to listed and analogous grounds. Law also added a new restriction- that discrimination must impair “human dignity”.



Andrews v Law Society of BC (1989) was the first s15 case to reach the SCC. It was a challenge to the statutory requirement of the province of BC that members of the bar had to be citizens of Canada.



SCC held-unanimously that this requirement was contrary to s15 and was not saved by s1.



McIntyre J discussed and rejected theories by Hogg (s 15 condemned all legislative classification) and by McLachlin J (that s 15 condemned unreasonable classification. He held there was a “middle ground” between those two positions which was to interpret discrimination in s 15 as applying to only grounds listed in s 15 and “analogous” grounds



This enumerated grounds approach closely accords with the purposes of s15 and leaves questions of justification to s1.



The Court went on to hold that citizenship qualified as an analogous ground of discrimination.



Law v Canada ( 1995)- unanimously reaffirmed the restriction of s 15 to listed and analogous grounds. Law also added a new restrictionthat discrimination must impair “human dignity”

b) addition of analogous grounds – What are analogous grounds?



They are grounds similar listed in s 15. They are personal characteristics that are unchangeable ( or immutable) or at least changed by the individual except with great difficulty and cost.



They are not voluntarily chosen by individuals.



They describe what a person is rather than what a person does.



Religion is unlike the listed characteristics –there is no natural/legal impediment to change religion.

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63 

They describe what a person is rather than what they do. Ask: is it morally wrong to impose a disadvantage on a person by reason of a characteristic that is outside the person’s control.



Corbiere v Can [1999]- SCC held that an analogous ground is one based on “a personal characteristic that is immutable or changeable only at unacceptable cost to a personal identity.”

A. Citizenship- (Andrews)

was the first analogous ground Only La Forest J- tried to articulate a reason.- “that citizenship was a personal characteristic that is typically not within the control of the individual and in this sense immutable.”



Lavoie v Canada (2002)-was the statutory hiring preferences for citizens in the federal public service. s 1 was upheld but all agreed that citizenship was an analogous ground.

B. Marital Status –second analogous grounds (Miron v Trudel ( 1995)-concerned the statutory provision of accidents benefits to a “spouse” a term that was defined as a person legally married to the victim. The claimant was a common law spouse succeeded in striking down the requirement of marriage. 4 said yes and 4 judges said no. One said it didn’t matter.



Nova Scotia v Walsh (2002) was unanimous that marital status was an analogous ground. However the court held that the matrimonial property regime of NS which was restricted to people legally married did not breach s15 because it did not impair the human dignity of the common law spouses who were excluded by reason of their marital status.



note: both marital status and citizenship are not immutable in a strong sense. Each status can be chosen. However, the choice is often blocked by legal requirements by the contrary wish of another person. –Often challenges of these “soft” analogous grounds are defeated for lacking the “human dignity or the requirements in s1.

C.

Sexual Orientation –is an analogous ground.



(Egan v Canada (1995) 8/9 judges decided that sexual orientation was an analogous ground.



La Forest J- described sexual orientation as “deeply personal characteristics that is either unchangeable or changeable only acceptable personal costs.”



The claimants were a same sex couple who were seeking a spousal allowance under the federal Old Age security program and did not succeed. The ruling however, of analogous grounds was very clear.



Vriend v Alberta (1998)- Court held that Alberta’s Human Right’s code violated s15 by excluding same sex couples from spousal obligations.



Little Sisters Book and Art Emporium v Canada (2000)- the Court held that the practices of custom officials in obstructing the importation of gay and lesbian communities was a breach of s15.



Egale v Can ( 2003)- BC courts held, along with other provinces that opposite sex requirements for marriage was contrary to s 15, thereby legalizing same sex marriage in several provinces.



These 3 analogous grounds are the only ones to be recognized.

Not analogous grounds are: 

Place of residence has not been accepted ( except Indians on Reserves)



Occupation has not been accepted- so laws denying bargaining rights to police officers cannot be challenged under s15.



Substance orientation is not an analogous ground- so laws prohibiting the use of marijuana cannot be challenged under s15.



Privileges for the Crown and other public authorities in litigation cannot be challenged under s15.

Courts Importing equality rights into other Charter sections

63

64 

Malapportioned voting districts- gives rural votes more weight than urban votes- have been held to be unconstitutional under the right to vote under s3.



This leaves out the restriction to listed and analogous grounds.

Human Dignity 55.9 a) Ambiguity in Andrews 

Discrimination In Andrews was suggested that it is either under an enumerated or analogous ground.



McIntyre J opinion in Andrews- hints at a more complicated theory of discrimination. One passage states “ it is not enough to focus only on the alleged ground of discrimination and decide whether or not it is an enumerated or analogous ground”



The court was divided into different camps.

b) Impairment of human dignity



Law v Canada (1999)- The SCC surprised observes by issuing an unanimous decision issued by Iacobucci J providing a new interpretation of s15. This new interpretation differed from the three previous interpretations offered in Egan and Mirron. The new consensus was as follows:

1. s15 applied only to legislative distinctions based on listed or analogous ground (contrary to L’Heurex Dube J’s earlier view) 2. Discrimination is s 15 involved an element additional to a distinction based on a listed or analogous grounds ( contrary to four judges earlier view) 3.

That additional element was an impairment of “human dignity” ( contrary to all nine judges earlier view)



The new requirement of an impairment defeated the claimant in Law.



In Law- The claimant was seeking a payment from a spouse but was ineligible because she was under 35. Age is a listed enumerated ground in s 15.



By adding the new requirement impairment to “human dignity” to s15, the claimant had a burden to prove of establishing the age base distinction was an impairment to her dignity.



Why was this age based distinction in Law not an impairment of human dignity?



The Courts recognized that In the Canadian Pensions purpose payment plan it was much easier for younger widowers to support themselves then seniors.



Iacobucci J in Law did not define “human dignity”. He did define four contextual factors not to be taken exhaustively that were help into the inquiry. 1.

the existence of pre-existing disadvantage, stereotyping, prejudice and vulnerability

2.

the correspondence between the distinctions and claimant’s characteristics or circumstances

3.

the existence of ameliorative purposes effects on other groups

4.

the nature of the interest effected.



Law, it was the second “correspondence” factor that was important.



Every case following Law followed this analysis until R v Kapp (2008



R v Kapp (2008)- tSCC had changed their mind and retracted the requirement of an impairment of human dignity-replacing it with what seems to be the very similar requirement of “discrimination



Why change Human Dignity requirement?- was vague, confusing and burdensome with claimants. It was also confusing because it

64

65 leaves an evaluative step in s15 which s 1 was suppose to do. 

Many claimants were establishing that a disadvantage had occurred but failed in the burden of proving the impairment in human dignity.

C) The factor of Correspondence



In Law, the correspondence factor was dispositive. The court described the factor in these words “The correspondence, or lack thereof, between the ground of grounds on which the claimant is based and the actual need, capacity, or circumstances of the claimant or others.”



The correspondence factor seems to become the impairment of human dignity in most cases.



What does the correspondence factor really mean?



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.



If this is right, then this factor leaves very little for s1 to do.

D) Discrimination without human dignity



The SCC has apparently abandoned the concept of human dignity as an essential claim under s 15.



R v Kapp [2008] the change came in obiter dictim McLachlin CJ and Abella J –did not doubt that “human dignity is an essential value underlying the s15 equality guarantee” but they acknowledge that “as a legal test” human dignity was confusing and difficult to apply and was additional burden on equity claimants rather than the philosophical enhancement it was intended to be.”



They held this impairment was no longer required in s15.



Kapp- opinion assumes that there is still an element of s15 in addition to a disadvantage imposed on a listed and analogous grounds. The element is no longer called human dignity but is now called “discrimination”



The four same factors now have been changed to: 1.

Factors one (pre existing disadvantage) and four (nature of interest affected) and possibly three (ameliorative purpose) went to “perpetuation of disadvantage and prejudice.”

2.

Factor two (correspondence)- went to stereotyping. These factors should not be read literally as if they were legislative dispositions, but as way of focusing on the central notion of s15.



It is now the perpetuation of disadvantage or stereotyping



Hogg states that this is still confusing.



Ermineskin Indian Band and Nation v Canada (2009)- first equality case to be decided after Kapp.- It was argued that provisions of the Indian Act were unconstitutional for breach of s15 of the Charter.



They argued that according the Act, it deprived Indians, a group distinguished by race, of rights that were available to non-Indians.



Rothstein J- confirmed the Kapp ruling and stated that it was not good enough for an equality claimant to show a disadvantage based on listed or analogous grounds. The equality claimant also had to establish that the challenge law was “discriminatory” which involved that establishing that the law “perpetuates prejudice and stereotyping”



Rothstein J- made no reference to the four contextual factors

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66 

Rothstein J- held that the Indian Act gave the Indians more control over their own money, which had no risk or loss to the bands. These features of the statutory regime “do not draw a distinction that perpetuates disadvantage through prejudice or stereotyping.

Disadvantage 55.10 a) selection of comparator group 

It is the requirement of disadvantage that involves a comparison with other- others who are similar situated to the complainant except for the presence of a listed or analogous personal characteristic.



In 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 the possession of Canadian citizenship.



The presence of disadvantage (unequal treatment) requires a comparison between the legal position of the claimant and that of to other people to whom the claimant may legitimately invite comparisons.



This involves two inquires: I. II.



Whether the group to which the claimant compares herself is the appropriate comparator group whether the distinction that the law draws between the claimant and the comparator group is disadvantageous to the claimant.

appropriate comparator group- the selection of the appropriate comparative group involves finding the group that shares with the claimant all the characteristics that is listed in or analogous to those listed in s 15.

(ie- if a women challenges a law that confers a benefit only on men, the comparator group will be men who qualify for the benefit, if the women qualify for the benefit other than sex, then it will be clear that she has suffered a disadvantage Note: this is not that obvious.



Hodge v Canada (2004)- held that she selected the wrong comparison group. The correct comparative group was not married souses living apart but former spouses. Only a person who was a spouse at the time of the death was entitling to the benefit. The claimant suffered no disadvantage on account of her marital status.



Auton V BC ( 2004)- a claim of discrimination was made by autistic children and their parents. They complained that the province did not fund the “applied behaviour therapy”. Lower court found the province in breach s 15. SCC- reversed the decision because the lower courts erred on the comparative groups. The court stated that it was wrong to compare autism claimants with recipients of fully funded therapies because it ignored the fact that 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 and had administrative difficulties related to its recognition and implementation.



The claimant had adduced no evidence that the province was funding “other comparable, novel therapies” they could not show disadvantage or unequal treatment.



Auton- outcomes turn on the way in which comparative groups are defined.



In NS v Martin (2003) they used the term “chronic pain”. This did not have the same specifity that it did in Auton. These two cases demonstrate that the definition of the comparative group is critical to the outcome of s 15 cases. The complainant will compare himself to someone who is better treated them him (Martin) The responding government will suggest a different comparator group that either receives worse treatment or the same treatment (Hodge) or that does not exist (Auton) The courts will be assited by its sense of the purpose of statutory scheme

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67 In Auton- the health care plan did not purport to be comprehensive in funding in even medically necessary if they were not provided by physicans. In Martin- the workers compensation scheme did purport to provide comprehensive coverge of all work related injuries B) requirement of disadvantageonce the comparative group has been selected it is necessary to compare the treatment provided by the law to the claimant with the treatment provided to the comparative group. Only if the law treats the claimant less favourably



Thibaudeau v Canada (1995)- the claimant was unable to establish that she had suffered a disadvantage by reason of her martial status.



it calls for any disadvantage imposed on the claimant group to be netted out against any advantage granted to claimant groups.



Eatton v Brant County Board of Education (1997)- no finding of disadvantage Tribunal found that a child with cerebral-palsy who had been educated in a regular classroom should be educated in a special classroom. The parents took the view that without parental consent it was a breach of equality rights. SCC held there was no breach of s15.evidence showed that segregating setting was in the best interest of the child. The equality right was that of the child’s and not the parents. Given the tribunal ruling, placement of the child in a segregated setting could not be characterized as the imposition of a disadvantage on the child.

c) Objective and Subjective disadvantage How do you measure a disadvantage?



Egan v Canada (1995)- same sex couple challenged the spouses allowance that was payable under the federal Old Age security act. SCC held denied the claim to spousal status by a majority of 5/4 but all nine judges accepted the proposition that the denial of the federal spousal allowance was a disadvantage that could in principle be on the basis of s15 equality right.



Issue in Egan- whether the presence of a disadvantage is to be judged from a subjective standard or an objective standard?



The SCC was implicitly applying a subjective standard.



McKinney v University of Guelph (1990)- the same subjective standard was applied.

Note: If subjective standard of disadvantage is the correct approach then disadvantage will be present in all but unusual cases since plaintiffs do not bring cases unless they believe that the have suffered a disadvantage. Objective approach was applied in R v Swain.- about being exposed to infinite sentencing if charged with an offence and suffering from mental disorder.

•

Court in Law v Canada (1999) stated that both subjective and objective standard should be employed. The inquiry was to be undertaken “from the perspective of the claimant and from no other perspective” but the claimant assertion must be supported by an objective assessment of the situation. “

d) Human dignity and Disadvantage The discussion on human dignity is wide ranging. The concept of human dignity often is absorbed by the question of disadvantage making it hard for the court to keep the two ideas distinct.



NS v Martin (2002)- SCC decided that common law relationships were on the whole better off not being included in the shared property regime that were imposed on married people. The court avoided any analysis of this issue by deciding that a reasonable person who shared the same attributes and circumstances of the claimant would find that the claimants human dignity had not been impaired by her exclusion from the shared property regime



Canadian Foundation for Children Youth and the Law v Canada (2004)- SCC held that a reasonable use of corrective force against children by parents/teachers was on a whole beneficial to children. It held that human dignity was not impaired, taking the perspective of “a reasonable person acting on behalf of the child, who seriously considers and values the child’s views and development needs.

e) Group Disadvantage



Is showing a evidence of general ( or group) disadvantaged is a prerequisite to a s15 equality claim? has properly been settled by Miron v Trudel ( 1995)- 8 judges- said that membership in a disadvantaged group was not a prerequisite, but merely an indicator or indicium of an

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68 analogous ground.



Law- Iacobucci- group disadvantage was a “contextual factor”



Andrews-SCC struck down BC law that excluded non-citizens from admission to the bar. Wilson and McIntyre JJ-referred to non citizens as an example of “discrete and insular minority”



non citizens were- a group lacking in political power and such vulnerable to having their interests overlooked and their rights to equal concern and respect violated.



La Forest J- described non-citizens as “ an example without parallel of a group who are relatively powerless politically and who interests are likely to be compromised by legislative decisions.”



R v Turpin (1989)-Three people charged with murder were not members of a disadvantaged group. Wilson J- in is was not sufficient for the equality claimant to show that he or she was disadvantaged by the impugned law. It was necessary but not sufficient. They have to go further and show the distinction employed by the statue was one that defined a group that was disadvantaged in other respects.



Province of residence (or trial) did not in this case identify a disadvantaged group.



Andrews – Wilson J said “the range of discrete and insular minorities has changed and will continue to change with changing political and social circumstances.



R v Hess (1990)- The claimant argued statutory rape offence was discriminatory to men. It did offend s 15 but was upheld s 1 Wilson J –clearly assumed that discrimination against men was contrary to s 15. ( Changed her view from Turpin)



Weatherall v Canada (1993)- inmate challenged the practice of having female guards to perform frisk searches and observe cells ( toilets) of male prisoners. Men guards did not do this to women’s cells. La forest J- on general disadvantage- that women generally occupy a disadvantaged position in society in relation to men.”

Direct and Indirect discrimination 55.11

a) Direct and Indirect Discrimination 

Direct- A law may be discriminatory in its face. ( a law that excludes women from the police force would be discrimination on its face)



Indirect- A law may be discriminatory on its effect- ( a law that imposes weight and height qualifications for admission to the police force would be discriminatory (whether or not intended) because most women aren’t as large as men. (indirect) Indirect does not expressly employ any of the categories listed in s15 ( or analogous)



Indirect- A law may be discriminatory on its application.- a law that prescribed no discriminatory qualifications for admission to the police force would be discriminatory in its application if police recruitment procedures led to the rejection of a disproportionate number of female applicants.



Andrews- both indirect and direct discrimination is covered by s15. and do not need to show that law passed with the intention of discriminating-the mere fact that the law does have the e



Note- only two claimants of indirect discrimination have been successful.



Eldridge v BC (1997)- BC health care to fund sign language interpretation to deaf people.



Vriend v Alberta (1998)- Alberta’s human rights legislation not including sexual orientation.

b)

Unintended discrimination 

indirect discrimination may be intended and unintended.

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69

c)



since this is not an ingredient to discrimination then there is no need to make a comment on it.



discrete discrimination can be unintended. (Andrews case)-they though citizenship was a bona fide occupational required to be a lawyer.

Reasonable accommodation



reasonable accommodation will apply under s15



Gibson points out Andrews- it is necessary corollary of the rule that discrimination may be indirect and unintended that a law may have to make reasonable accommodation for those who by reason of religious affiliation or disability (example) are discriminated against by otherwise neutral laws.



Ont Human Rights Comm v Simpons Sears [1985]- Religion/Employers- an employer was under a duty to make reasonable adjustments to employee schedules so that an employee who was seventh day Adventist would not have to work Friday evenings and Saturday.



The ruling requires employees to be available for work at those times was a reasonable requirement for the retailer because those times were important for the employer.



Hogg- the rule did have adverse effects on those observing a Saturday Sabbath. This could be cured by making reasonable accommodation for the purpose whose religious beliefs called for some deviation to the general rule. The discrimination consisted of failure to make reasonable accommodation for a person whose religious beliefs were specifically burdened by an otherwise neutral rule. This was a Human Rights case but it would apply to s 15.



Eaton v Brant Country Board of Education (1997)- Special Needs/ education - SCC held that the school system was under a s15 duty to make reasonable accommodations for a special need child.

What for should it take?



The SCC said there is no rule or presumption that in favour of a regular classroom environment (what the parents wanted). The School boards accommodations was to be driven by the best interests of the child not the parents.

Justification s1 55.12



One unusual case, where a law that imposes a disadvantage on the basis of a listed or analogous ground and also impairs human dignity, was the Newfoundland v NAPE (2004) where SCC found where Newfoundland was facing serious financial crisis could enact a law that postponing implementation under collective agreements under which the government had undertaken to increase the wages of women.



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.

s15(2)- Affirmative Action 55.13



s15(2)- makes it clear that s15 does not preclude “affirmative action programs” or “equity programs” in favour of “disadvantaged individuals or groups”



If such a programme were attacked on equality grounds by a person who was not a member of the favoured (disadvantaged group) s15(2)provides an answer.



What is not clear- is s15(2) an exception to s15(1) or is it a clarification to s15(1).?



Regarded as an exception to s15(1)- it insulates from constitutional challenge those programmes that practices “reverse discrimination” by requiring that a member of a disadvantaged group be preferred to a person who is equally or better qualified but who is not a member of the

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70 favoured (disadvantaged) group.



s1- is reserved for laws which use racial or sexual classification.



s15(2) is an exception because affirmative action programs are prima facie violations of s 15(1)-that is why they need to be saved.



However, - SCC has interpreted s15(1) as implementing a substantive rather than a formal definition of equality. Under substantivedifferent treatment in the service of equality to for disadvantage groups is an expression of equality not an exception to it.



R v Kapp [2008]- McLachlin CJ and Abella J- rejected the idea that s15(2) was an exception to s 15(1). The describe them as confirmatory to each other. The focus of (1)was preventing governments from discriminating; the focus of (2)- was enabling governments pro actively combat discrimination (2)-was not merely a clarification or an aid to the interpretation of subsection (1); (2) had an “independent role” to play. Affirmative Action Program fails s15(2)?



Meets the Criteria- If an affirmative action plan met the criteria of subsection (2)- then the program was valid under s15(2) not s15(1) and s15(1 analysis is needed.



Fails to Meet the Criteria- If it failed to meet criteria under s15(2) then a s15(1) analysis would have to be undertaken to determine whether the program was discriminatory.



R v Kapp[2008] makes clear that a program cannot not be attacked under s 15(1) if it targets a group identified by one of the listed or analogous groups in s 15(1) so long as: 1. the group is disadvantaged and 2. the purpose of the program is the improvement of the conditions of the group.

Discrimination Permitted by Constitution 55.14 a) Age in s23, 29, 99



s23 Constitution Act 1867- person under 30 cannot be appointed to senate



s29 Constitution Act 1867- that a senator must retire at the age of 75



s99 Constitution Act 1867- a judge must retire at the age of 75

-

These provisions impose a burden by reference to a ground of discrimination that is listed in s 15, namely age.

-

These provisions would therefore be contrary to s 15 (invalid) unless saved by human dignity or s1.

-

These have never been attacked but would be sheltered from Charter attack.

b) Race in s91(24)



R V Drybones (1969)- Indian Act provision was struck down because it used the term “Indian”.



majority of the court held that the use of the word Indian was an offence contrary to the equity clause of the Canadian Bill of Rights. The problem was the entire Act uses the word “Indian.” Does this mean that the entire act is invalid?



The position under s15, laws enacted under s91(24) that employ the racial classification “Indian" or that have disproportionate impact on Indians or lands reserved for Indians, are not vulnerable to challenge under s15.

c) Religion in s93



Ontario Separate School funding case (1987)- The case reviewed the validity of an Ontario statue that extended full public funding to Roman Catholic separate secondary schools which at the time were being funded to grade 10 only.

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71 

Religious schools other than Roman Catholic schools received no funding.



The SCC unanimously upheld the statue on the basis that the distinctive treatment of Roman Catholic school supporters was expressly permitted by the Constitution.



The power to enact laws in relation to education came from s93 of the Constitution Act 1867. However s93 went on to guarantee the rights of Roman Catholic and Protestant school supporters that existed at the time of confederation. and (3) of s93 made reference to any system of separate schools “thereafter established”, meaning after Confederation .



The Charter of Rights he held, “cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution Act 1867.



Alder v Ontario (1996)- brought a declaration that the province not to fund private religious school was a breach of s15.



The SCC held that the comparison with fully funded Roman Catholic schools could not be invoked as a breach of equality.

Note: Although the Charter came after the Constitution Act 1867, it is not to be read as impliedly repealing or amending those provisions of the earlier instrument that are inconsistent with the unqualified language of s15. It is to be read as qualified by the language of the earlier instrument. d) Province of residence in s91, 92



Can a person’s province of residence could amount to discrimination under s15?



The SCC has in fact that a place of residence is not an analogous ground.



However, if one province is getting better treatment then another then, this would be a contradiction of the federal principle.



Differences between provinces 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 s 91 and 92.

e) Citizenship s6



s6(1)- the right to remain in Canada only applies to a citizen it has been held that the Immigration Act Chiarelli V Can[1992] may validly provide for the deportation of non-citizens who committed criminal offences or Charkaoui v Can [2007] who have been certified as a threat to national security.



laws imposing disabilities under s6(1) have been held to be a breach of s15.



Andrews v Law Society of BC (1989) held that citizenship was an analogous ground of discrimination under s15 and struck down a provincial law that restricted entry to the province’s legal profession to Canadian citizens.

f) Language s16-23 

These implement a notion of equality of the French and English languages.



By implication they accord a “special status” to French and English “in comparison to other linguistic group in Canada”



German speakers denied right-would not be under s15 but under minority language education a difference in treatment contemplated in s23.

Race 55.15



“race” , “national or ethnic origin,” “colour”- are one of the grounds expressly stated in s15.



It racial distinction in a statue would have to be an affirmative action program within the terms of s15(2) or held up by s15(1)



Private spheres- discrimination in a private sphere would be upheld by a Human Rights Code.

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72 Aboriginal Peoples- There situation is a special because s91 (24) of the Constitution empowers federal Parliament to make laws in relation to Indians and lands reserved for Indians.”



special status of Indians have been reinforced by s35 of the Constitution Act 1985.-which guarantees “aboriginal and treaty rights”



s25- provides that the Charter should not be construed so as to abrogate or derogate from “any aboriginal , treaty or other rights and freedoms that pertain only a limited role to play with respect to aboriginal peoples.



by reasons of these provisions s15 has a very limited role to play in respect to Aboriginal peoples.

Religion 55.16



“religion” is another ground of discrimination that is expressly prohibited by s 15.



s93 Contsi. Act 1867- –guarantees the rights of the supporters of denominational schools that existed at the time of confederation which authorize the enlargement of those rights. With this, it would discrimination.



by s93-any challenge to denominational school system is protected by s15 is closed. (see 55.14-religion)



s2(a) guarantees “freedom of conscience and religion”-many of the religion cases are covered in this section (Chapter 42)

Sex 55.17



sex is another ground of discrimination expressly prohibited by s15.



R v Hess (1990) (offences)- SCC held that the offence of statutory rape (intercourse with a female person under the age of 14) did not offend s15 although it could only be committed by a male person.



Wilson J- for the majority –stated “intercourse” was defined by penetration, which is a biological fact it could only be committed by males.



McLachlin J- held it did breach s15 but was justified under s1. The protection from pregnancy was important. Males could not get pregnant.



Weatherall v Canada (1993) (female guards)- prisoner challenged the constitutional validity of female guards frisking males ( male guards did not frisk women).La Forest- that equality did not demand that men and women always be treated in the same way and the effort of cross gender searching was “different and more threatening for women than men.” Even if it was a breach of s15, it would be saved by s1.



The “humanizing effect” and “employment equity” is a reason for women to be in jails.



Native Women’s Assoc. of Can v Can [1994]-(funding) claim of sex discrimination in funding was rejected.



Benner v Canada (1997) (men/women-law)- provision in federal Citizenship Act that distinguished between men and women was struck down under s15. The discrimination by sex applied to the parents of applicants and not to the applicants themselves. It was a breach of s15 and not saved under s1.



Trociuk v BC (2003) (men/women-law)- father challenged the provincial law that permitted the mother on the birth of the child, to leave the father’s name off the birth certificate and if she did that, to alone choose the surname of the child. The mother was unmarried and were estranged. SCC held- the law distinguished on the basis of sex since the fathers were disadvantaged in comparison with mothers. The court also held the naming process impaired their human dignity therefore it was a breach of s 15 and not justified under s1.



Newfoundland v N.A.P.E-(women/law) province of Newfies wanted to make a law to delay payments to women which make them equally paid in hospitals as men. SCC held that although it was a breach of s15, it was justified under s1 in this rare case because of the financial crisis the government was in.



Symes V Canada (1993)-(women/child/law) ITA offended s15 of the Charter by not allowing business persons to deduct the full

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73 costly of child care. The taxpayer- a self employed lawyer had two kids and paid $13000 to a nanny for day care. SCC held that the taxpayer had not established that women disproportionately bore the financial costs of child care. Since the deduction would be available with respect to financial costs and child care, it would benefit men as much as women and its restrictions did not amount to discrimination on the basis of sex. s28 Charter- provides the rights and freedoms referred to in the Charter are” guaranteed equal to male and female persons”

 s28 is a stronger guarantee that s15 in at least 2 or 3 aspects. 1. the three year delay in the s15 coming of force of s 15 ( by virtue of s32)2)) did not apply to s28 2. the power of the legislative override (s33) did not apply to s28 3. it is even possible that the limitations clause (s1) does not qualify s28 having regard to s28 opening words “Notwithstanding to anything in this Charter Age 55.18

 Age is another ground of discrimination that is expressly prohibited by s 15 

Like other grounds of discrimination, age is a personal characteristics that is immutable in the sense that it cannot be changed by the choice of the individual.

Two differences between age and the other named grounds of discrimination 1.

age is a characteristic that is shared by everyone. In the course of a life span everyone will pass through the various stages of childhood-old age.

2.

the other between age and other grounds is that there is some correlation between age and ability. This is not the case with race, color, ethnic origin, sex although (true for mental or physical disability).

Law v Canada (1999)- upheld a law that denied a benefit to a young person. It did not exclude them because they were less capable or less worthy, but that older people were more in need support and were often limited without resources. Gosselin v Quebec (2002)- the distinction was not discriminatory that the amount of welfare benefit would change if you were under the age of 30. It did not impair human dignity. The scheme was described as harsh and misguided” but did not treat people “less worthy or less deserving" Wynberg v Ontario (2006)- Ontario preschool program which supplied therapy to autistic children would cease one the child turned 6. It was aimed at this age because expert opinion stated that young children respond well to this treatment. The court held: that the program corresponds to the needs and circumstances of children aged two and five and for this reason the human dignity of school age children who were denied the therapy. Canadian Foundation for Children, Youth and the Law v Canada (2004)- constitutionality of s43 of the CC which made it a defence to charge of assault for a school teacher or parent to use force by way of correction toward pupil or child” The distinction was not discriminatory because it did not impair the dignity of the children who were exposed to corrective force. SCC held that criminal law should not intrude into normal school and family discipline. Criminal law remained available to punish force that was violent and abusive. “where it was a genuine effort to educate the child, poses no reasonable risk of harm... McKinney v University of Guelph (1990)- a number of university professors in Ontario challenged the mandatory requirement polices of their universities ( 3 cases similar but were found to be outside the scope of the charter. this case was a community college which was tightly controlled by the government) It held that mandatory retirement was a breach of s15 but was upheld by s1. Tetreault-Gadoury v Canada (1991) – the question arose whether a provision of the Unemployment Insurance Act, which denied benefits to people over 65 was a breach of s15. and that it could not be justified under s1. (unlike McKinney-and the three similar cases) -

this suggests that age distinctions are vulnerable to Charter attack

-

The court distinguished McKinney on 3 grounds: 1.

that a university was a closed system with limited resources

2.

that “faculty renewal was crucial to extending the frontiers of knowledge

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74 3.

that academic freedom required a minimum performance review up to retirement age.

Hogg: states that that judicial intervention in the field of employee retirement is bound to be clumsy and likely to produce counterproductive results. If mandatory retirement / benefit programs cannot be started at 65 and is unconstitutional then various consequences are likely to follow: I.

if an employee cant be counted on to leave at 65 ( or other age) then employee incomes would have to rise more slowly with seniority than they now do

II.

employee performance would have to be monitored more closely than it is now

III.

and the incentive for employers and governments to provide adequate pensions for retried workers would diminish.

Hogg: no court can adequately measure these effects and weight them against the age based mandatory requirement. Mental of Physical Disabilities 55.19



mental and physical disabilities is expressed in s 15 and like others is immutable in the sense that it cannot be change by the choice of the individual.



It can sometimes be curable so not always immutable.



unlike other grounds it is an impairment on ability-some legal restrictions may be properly predicated on disability.



Rules may be unintended or indirect and may require some reasonable accommodations. ( wheel chair ramps, brail)



Eaton v Brant County Board of Education (1997)-what form of accommodation was required by s 15 for a student with mentally and physical disabilities. SCC held- that the school had to accommodate someone with mental and physical disabilities but it was in the best interest in the child and not the parent. In this case experts held that special needs was better than regular class (what the parents wanted)



This s15 right belong to the child and not the parents. Wynberg v Ontario (2006)-this was an age and disability claim. Child with autism and under the age of 6. The autistic preschool program ended at the age of 6. Experts stated that children at this age respond best to the therapy therefore it was the best interest of the child. not a breach of s15. Winko v BC (1999)- a challenge to the Criminal Code that provided for the disposition of the accused following a verdict of “not criminally responsibly” – Court held that because this provision actually helped mentally Ill people from not being punished it was not a breach of s15. Granovsky v Canada(2000)- challenge to the Canada pension plan. His back pain put him in a category of temporary disablement and not permanent disablement therefore he could not take advantage of the program. He fell through the cracks of the program. SCC held the denial was not a breach of s15. Parliament was recognizing a greater need and not impairing human dignity to those who had been temporarily disabled during the qualifying period.

Note: in these case an accommodation had been granted to these people-the challenge was to the appropriateness of the accommodation. It is reasonable to conclude that the SCC is unlikely to defer a legislated effort to accommodate persons and is not inclined to substitute different remedies, draw qualify lines in different places or redesign the legislative scheme.

This changed in the next case

NS v Martin (2003)- SCC struck down provisions Nova Scotia statutory workers compensation scheme that dealt with “chronic pain” The distinction of chronic pain suffers and other disabilities was an impairment on their dignity. more work Citizenship 55.20

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75 Marital Status 55.21 Sexual Orientation 55.22 Place of Residence 55.23 Occupation 55.24

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76 20. Remedies Constitution Act, 1982, s.24, s.52 Hogg, chapter 40, “Enforcement of Rights” Schachter v. Canada, [1992] 2 S.C.R. 679 Vriend v. Alberta, [1998] 1 S.C.R. 493, per Iacobucci J., paragraphs 129-179 Constitutional Law January 2010 Page 9 Supreme Court Judgments: http://scc.lexum.umontreal.ca/en/index.html

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