EXAM FORMAT
Part A: Two Fact Patterns (50%)
Part B: Critical Essay (50%)
GENERAL BACKGROUND
MERITS OF ENTRENCHME NT AND JUDI CIAL REVI EW
The Nature of the Judicial System
Two features of the judicial system that make it particularly inappropriate for
advancing the interests of the disadvantaged:
1. Cost of access
2. Composition of the judiciary
*Pretty self explanatory but see pages 755-756 for more on this.
-
“COURTS AND COUN TRY” WILLIAM A BOGART 199 4
Two modes of democracy at stake:
1. Recognizes the power of the ballot that is curbed by independent and
tenured judges who ensure that rationality and principle are never
ejected by impetuous legislatures, bureaucracies, dulled citizenries.
2. Places its confidence in those who can claim the power of the ballot.
More reserved when it comes to using judicial intervention than the
former.
The Case for the Charter
Such a document allows individuals, particularly minorities, to seek
vindication in an open, public, and responsive process as opposed to
legislators who may be unconcerned.
A claim that the coming of the Charter signals full maturity of the
Canadian legal system.
Ability to unite Canadians.
Certain conditions required for implementation of the Charter
Rests on not it being construed only to protect democracy’s functioning
and not to review substantive decisions made by elected officials.
The existence and use of s33, which allows judicial decisions under
most of the provisions of the Charter to be overridden by the
competent legislative body.
Case Against the Charter
The Charter was born as a device to shore up the centralizing
tendencies that Pierre Trudeau believed were vital to enhance
Quebec’s stake in the nation and to check the forces of separatism led
by his rival, Rene Levesque.
To relinquish power to the judiciary is a “reflection of the inherent
contradiction of liberal ideology. …”
Three Arguments Leery of the Charter
1. Concerns substantive outcomes and claims that the elected members
of government and their agencies have been the more effective vehicle
for improving the lives of most Canadians in many circumstances
2. Relates to process and asserts that the best chance for a vigorous,
responsive, and respected democracy comes from elected
representatives
3. Costs of access to the courts which privilege the powerful and
organized and thus allow them disproportionate use of judicial review,
either to dismantle legislation and programs or to shield themselves
from attack by government or other groups.
“IMMACULATE DECEPTIO N: THE CHARTER’S HIDDEN AGENDA”
ANDREW PETTER 1987
The Charter is a regressive instrument more likely to undermine than to
advance the interests of socially and economically disadvantaged Canadians.
The reasons for this lie partly in the nature of the rights themselves and
partly in the nature of the judicial system which is charged with their
interpretation and enforcement.
The Nature of Charter Rights
The rights in the Charter are founded upon the belief that the main
enemies of freedom are not disparities in wealth nor concentrations of
private power, but the state.
Thus, one finds in the Charter little reference to positive economic or
social entitlements, such as rights to employment, shelter, or social
services.
Charter rights are predominantly negative in nature, aimed at
protecting individuals from state interference or control with respect to
this matter or that.
o
Negative rights represent a “systemic bias” in favor of the
interests of the “upper middle class”
o
“Watch most fundamental rights theorists start edging
toward the door once someone mentions jobs, food or
housing…”
-
“At a more fundamental level, the attitudes of lawyers and of judges
tend to reflect the values of the legal system in which they were
schooled and to which they owe their livelihood.” …
“What is conveniently forgotten in (assuming the role of the judiciary is
to balance the natural forces of the market with unnatural state
intervention) is that the liberty of many Canadians is better protected
by the regulatory and redistributive policies of the state than buy the
market (assuming liberty includes housing, clothing, food, the liberty
not to be preyed upon by social and economic powers…)”
“THE CHARTER DIALOGU E BETWEEN COURTS AND
LEGISLATURES (OR PERHAPS THE CHARTER OF RIGHTS ISN’T
SUCH A BAD THING AFT ER ALL)”
PETER W HOGG & ALLIS ON A BUSHELL 1997
The Concept of Dialogue
The notion that judicial review is part of a “dialogue” between judges
and legislatures.
Where a judicial decision is open to legislative reversal, modification, or
avoidance, then it is meaningful to regard the relationship between the
Court and the competent legislative body as a dialogue.
o
In that case, the judicial decision causes a public debate in
which values play a more prominent role than they would if
it had been a judicial decision
How Dialogue Works
Where a judicial decision is striking down a law on Charter grounds can
be reversed, modified, or avoided by a new law, any concern about the
legitimacy of judicial review is greatly diminished.
The Four Features (of the Charter) that Facilitate Dialogue
1. S.33 which is the power of legislative override
2. S.1 which allows for “reasonable limits” on guaranteed Charter rights
3. The “qualified rights” in sections 7, 8, 9, and 12, which allow for action
that satisfies standards of fairness and reasonableness
4. The guarantee of equality rights under s15(1), which can be satisfied
through a variety of remedial measures
Dialogue May Occur Even When Laws Are Upheld
It is a mistake to view the Charter as giving non-elected judges a veto
over the democratic will of competent legislative bodies.
VRIEND V ALBERTA
LEGITIMACY OF JUDICIAL REVIEW
IS IT DEMOCRATIC
S15 CLAIM
Is the Alberta Human Rights Code constitutional?
The Charter applies to government omissions as well as positive acts; If
a legislature chooses not to include something in their legislation that
should be protected by the Charter, then the courts can step in and
insist the right be granted.
o
It is the effects of the legislation that matter in creating
discrimination; Purposes of omissions must be considered if
they are relevant just as much as purpose of the legislation
as a whole is considered.
The value of judicial review is that makes each of the branches
somewhat accountability to one another – it enhances the democratic
process rather than denying it.
Held: Exclusion of sexual orientation from the Alberta Human Rights Code
was a s 15 violation.
1
THE OVERRIDE
S 33 / THE OVERRIDE / NOTWI THSTANDING CLAUSE
33. (1) Parliament or the legislature of a province may expressly declare in
an Act of Parliament or of the legislature, as the case may be, that the Act
or a provision thereof shall operate notwithstanding a provision included in
section 2 or sections 7 to 15 of this Charter.
S33 of the Charter, the “override” or “notwithstanding” clause, began as, and
remains , a controversial part of the Charter. The Quebec sign law case, Ford
v Quebec (below) is the only case in which the court has been asked to
review the exercise of the override power.
FORD V QUEBEC (ATTOR NEY G ENERAL)
REQUIREMENTS FOR THE USE OF S33
Facts: Whether Quebec’s Omnibus bill was a valid use of the override; Can a
provision apply to laws retroactively?
Held: The standard clause was valid; the omnibus clause was valid except
that only prospective derogation is permitted.
S 33 lays down minimal requirements of form only, and there is no
warrant for importing into it grounds for substantive review of the
legislative policy in exercising the override authority in a particular case.
An essential requirement of form laid down by s 33 is that the override
declaration must be an express declaration that an Act or a provision of
an Act shall operate notwithstanding a provision included in s 2 or ss 715 of the Charter.
o
A s 33 declaration is sufficient if it refers to the number of a
section, subsection, or paragraph.
o
It must be contained in the statute and must not have a
retrospective effect.
The court cannot strike down a use of s 33 on the basis that it was
unreasonable.
DOES THE CHARTER APPLY
APPLICATION OF THE C HARTER
HOW TO PROPERLY APPLY THE CHARTER
1. DOES THE CHARTER APPLY?
2. IF SO, THEN: HAS A CHARTER RIGHT BEEN VIOLATED?
3. IF SO, THEN: CAN THAT VIOLATION BE JUSTIFIED? I.E., IS IT A
REASONABLE LIMIT IN A FREE AND DEMOCRATIC SOCIETY?
4. IF NOT, THEN: WHAT IS AN APPROPRIATE REMEDY?
32(1) This Charter applies
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
To the legislature and government of each province in respect of all
matters within the authority of the legislature of each province
IMPORTANT: The Charter does NOT apply directly to private actors, nor does
it apply to litigation between private parties resolved solely on the basis of
the common law.
DETERMINING IF THE CHARTER APPLIES
1. Source of the infringement – who/what is causing it?
2. Is the entity performing the action/inaction government?
a.
Nature of the entity – if the entity is found to be
government, either by (1) its nature [exercises government
functions; Godbout, Eldridge] or because (2) government
exercises significant control over it [McKinney, Stoffman]; all
of its activities will be subject to the Charter.
i. Each situation must be examined on its facts to
determine the level, degree and purpose of
control exercised by the government
ii. Subject to routine and regular control by the
government [Harrison]
iii. "though the legislature may determine much of
the environment in which universities operate,
3.
the reality is that the function as autonomous
bodies within that environment" [McKinney]
b. Nature of the activities – if the entity is not itself a
government entity but nevertheless performs governmental
activities, only those activities which can be said to be
governmental in nature will be subject to the Charter.
i. Even if it has some degree of discretion, is its
activities subject to “routine or regular control”
by the government?
ii. Performing an inherently governmental function?
1. The entity carries out an inherently
governmental act or implements
government programs or policies that
they can retain responsibility for
(Eldridge; Blencoe)
2. The entity exercises a government
function such as a municipality
(Godbout)
iii. The entity exercises coercive or compulsive
statutory powers. (Slaight; Blencoe)
iv. Inaction (Doucet) or under-inclusive legislation
(Vriend) can amount to government action
v. For the Charter to apply to a private entity, must
be found to be implementing a specific gov policy
or program.
If government by nature, all activities are subject to the Charter. If
performing governmental activities, online those governmental
activities are subject to the Charter. If neither, not subject to the
Charter.
ENTITIES CON TROLLED BY GOV ERNMENT/GOVERNMENTAL IN
NATURE
To be considered a government actor, the government MUST have
significant control over the entity, or the activity being carried out by the
entity MUST serve an inherently government function [only need to satisfy
one]
It is not enough to fall under the charter that an entity
Is created by government statute;
Is significantly funded by government;
Serves a public purpose.
If the entity has significant autonomy and control over own functions and if
they are not at the directive of/performing an inherently governmental
function then it likely is not under Charter scrutiny
Even if not subject to routine or regular control, an entity may qualify as
governmental by nature (for purposes of s 32) if it is exercising government
functions - Ex. Municipalities; government regulatory bodies
QUASI-GOVERNMENTAL BODIES:
Hospitals – in providing medically necessary services according to
government instruction, hospitals are carrying out a specific
governmental objective (Eldridge). However, if the act is internal, it
may not reflect government policy (Stoffman)
Colleges (Douglas/Kwantlen College 1990) – often government (crown
agents, board appointed by government)
Transit (Greater Vancouver Transportation Authority v CFS 2009)
NON-GOVERNMENT ENTITIES IMPLEMENTING GOVERNM ENT
PROGRAMS
For the Charter to apply to a private entity, it must be found to be
implementing a specific government policy or program.
A non-gov entity may be found to attract Charter scrutiny with respect to a
particular activity that can be ascribed to government
Requires investigation not into the entity, but the nature of the
activity itself
If the act is truly "governmental in nature" the entity performing it will
be subject to Charter scrutiny only in respect of that act and not its
other, private activities
ACTS THAT MAY ATTRACT CHARTER SCRUTINY:
Specific actions of a non-government actor can attract Charter scrutiny if
government exercises high degree of control and/or retains responsibility for
the act in question:
2
-
Measure taken under constraint of a statute [Stoffman]
Measure adopted at instigation of a minister or government [Stoffman]
Measure taken to implement specific government program or policy
[McKinney, Stoffman; Enbridge, Blencoe]
NOTES:
Public service is NOT sufficient to be deemed government function
Statute-created entity not sufficient to make actions subject to Charter
(McKinney)
The government cannot delegate its functions to others to avoid
Charter application (Eldridge)
Charter applies to both government action and inaction (Dolphin
Delivery)
RWDSU V DOLPHIN DE LIVERY LTD.
THE CHARTER APPLIES TO THE COMMON LAW – BUT ONLY INSOFAR AS IT IS
THE BASIS OF SOME GOVERNMENTAL ACTION
Does the Charter apply to the common law?
Does the Charter apply in private litigation?
The Charter applies to the common law, but only insofar as the
common law is the basis of some governmental action that, it is alleged,
infringes on the Charter; therefore the Charter only applies to
government action; it does not apply in cases between two private
parties.
Court orders are not government actions.
"Government" in s.32(1) of the Charter refers to all branches of the
federal and provincial governments.
The courts must abide by the Charter, and apply the common law in a
manner consistent with it, but their orders cannot be challenged on the
basis of the Charter in a case between two private parties.
MCKINNEY V UNIVERSIT Y OF GUELPH
ENTITIES CONTROLLED BY THE GOVERNMENT
UNIVERSITIES ARE NOT GOVERNMENT ACTORS – CHARTER X APPLY
COLLEGES ARE GOVERNMENT ACTORS
Are universities government actors under s 32 of the Charter?
Held: Universities are not government actors.
Just because an organization is created by statute, relies on
government funding for its survival, and serves a public purpose does
not render them a government body. The government must have some
type of direct control in shaping the organization’s policies (on a day
to day basis) for it to be considered a government body. Must ask
whether the public actor acts under considerable government
direction, or do they act with considerable autonomy?
NOTES:
Court held that universities were not subject to the Charter, but
COLLEGES ARE – as established below in the Kwantlen v. Douglas
College case. A board appointed by the government manages them,
and they are not statutory creatures. Ministers of Education generally
must approve college bylaws. According to the SCC, those two things
create enough of a connection between government and colleges to
render colleges subject Charter regulation.
Additionally, would likely be considered state actor when: (1) part of the
government apparatus itself or (2) government exercises significant
control over actions of public institution.
GODBOUT V LONGUEIL (CITY)
CHARTER APPLIES TO ENTITIES EXERCISING GOVERNMENT FUNCTIONS
CHARTER APPLIES TO MUNICIPALITIES
Does the Charter apply to municipalities?
Held: The Charter applies to municipalities.
ANALYSIS:
Municipalities are part of the government and thus subject to the Charter
because they:
1. Derive their power from provincial governments
2. Have taxation power
3. Can enact bylaws
4. Are publicly elected
Has to be acting in more than just a public capacity – has to be acting in a
governmental capacity.
ELDRIDGE V B RITISH COLUMBIA
ENTITIES IMPLEMENTING GOVERNMENT PROGRAMS
THE CHARTER APPLIES TO HOSPITALS
Does the Charter apply to entities that exercise discretion conferred upon
them by government legislation?
Held: Impugned activity is a function of government, and therefore subject
to the Charter.
ANALYSIS:
TEST: Are they implementing government policy? In other words, has
government mandated this policy?
Two step test for application of Charter to an act that is governmental
in nature:
o
Determine the source of the infringement
o
Determine whether the entity performing the particular
action part of government
Charter applies where non-government actors implementing
government statutory matters (aka government policy)
This case demonstrates that the Charter can be engaged by: (1)
legislation itself; or (2) entities exercising decision-making authority
pursuant to legislation.
APPLICATION:
SOURCE OF THE INACTION
Court found that the legislation in question wasn't the source of the
violation. It does not say that sign language cannot be publicly insured,
it only gives the Commission the power to decide, generally, what is
medically necessary and what isn't
Source of the violation is the actions of the Medical Services
Commission and the hospitals
GOVERNMENT?
Government actor? No
Activity performing a government function? Perhaps
In this case, government was directing the hospital to do the act. This brings
it under charter scrutiny
In providing medically necessary services, hospitals are carrying out a
specific governmental objective. Hospitals are the vehicle the gov has
chosen to provide for the delivery of a social program
A direct and defined connection between a specific gov policy and the
hospitals impugned conduct
Insofar as hospitals are carrying out a government service, they must
conform with the Charter
CHARTER REMEDIES
ENFORCEMENT OF RIGHT S
THE CHARTER APPLIES IF THERE ARE MEANINGFUL REMEDIES AVAILABLE.
Remedies and Standing
The first question is what kind of remedy do you want? Is it an issue
with the law, or with the application of the law?
o
S 52 provides remedies for UNCONSTITUTIONAL LAWS.
o
S 24 provides remedies for UNCONSTITUTIONAL ACTS by
public officials (how the law was applied).
A meaningful remedy provides:
o
Some type of correction
o
Vindication
o
Ensures compliance
Remember that remedial decision making is contextual:
o
In some contexts [ex. Long-standing violation of equality
rights] it may be impossible for a court fully to compensate
for the past harmful effects of the violation. In such
contexts, declarations and injunctions may be issued in
order to change governmental behaviour in the future.
Generally, the following guidance applies (R v Ferguson)
Look to s. 52 if the problem is with the law itself
o
Legislation rather than a discretionary action
Look to s. 24 if the problem is with the application
o
Government action or decision
3
SECTION 52(1) REMEDIES
2.
Factors to consider in choosing a remedy [non exhaustive – can
severance or reading in/down be used?]
a.
Remedial precision: for reading in, unlike severance, up to
legislature to fill gap (Hunter); as such, Court should not
read in if there is no sufficiently precise manner of extension
for provision to make it constitutional
b. Interference with legislative objective: If meeting objective
through different means would be unwarranted intrusion by
court (e.g. major budgetary considerations), should not read
in
c.
Change in significance of the remaining portion: Would the
remaining part be substantially changed if offending part
excised? (For example, adding a group to the provision by
reading in – size of group?)
d. Significance of the remaining portion: Longstanding nature
of rest of legislation – if Constitution supports remaining
part, or it is very significant/long standing like human rights
codes, assume it would have been enacted even without
relevant provision (like athletics exception in Blainey)
3.
Should a declaration of invalidity be temporarily suspended or take
effect immediately?
a.
Pose potential danger to the public? Immediate (R v Swain)
b. Threaten rule of law? Immediate (Re MB Language Rights)
c.
Under-inclusive legislative provision? May deprive deserving
persons without providing benefits, but allows a state of
affairs that allows violation to persist temporarily.
SECTION 52(1) REMEMD IES
The Constitution Act, 1982
52(1) The Constitution of Canada is the supreme law of Canada, and any
law that is inconsistent with the provisions of the Constitution is, to the
extent of the inconsistency, of no force or effect.
S 52 is available in cases where the constitutionality of the legislation is at
issue and a declaration of invalidity is sought. It provides remedies for
unconstitutional laws. Does NOT create a personal remedy.
AVAILABLE REMEDIES:
Note: Laws should not always be struck down entirely - a declaration that a
law is invalid in its entirety may constitute an overly broad remedy in cases
where only some parts of the law or some of its applications infringe the
Charter.
Declaration of invalidity
o
Immediate or suspended (often 12 months)
Partial invalidation – can be accomplished through various means:
o
Severance [French] - Trying to rewrite/modify the law in
some way by taking some words out and putting some in

Where the offending portion can be defined in a
limited manner, it is consistent with legal
principles to declare inoperative only that limited
portion – must not be more intrusive to
legislative purpose than it would be to strike it
down (ex. when money is at play)
Reading down- court re-reads the legislation to give it a constitutional
interpretation
o
Unlike severance, this just changes the interpretation, not
the actual words
Reading in (Vriend) - To address under-inclusive laws, extension of
benefits to certain individuals may be a remedy
o
In the case of reading in, the inconsistency is defined as
what the statute wrongly excludes rather than what it
wrongly includes
o
Same as severance, reading in will not always constitute the
lesser intrusion
o
"Courts should certainly go as far as required to protect
rights, but no further. Interference with legitimate
legislative purposes should be minimized"
SCHACHTER TEST – CHOOSING A REMEDY
TEST FOUND IN SCHACHTER
Two things to consider when determining the remedy is: (1) Have to have
respect for the legislature - remedies should not be creative, should try to
honour the goals of the legislature (deference to the legislature); (2) Respect
for the purposes of the Charter - obligation to ensure Charter rights are
realized [Schachter]
1. Define the extent of the inconsistency
a.
What part of the Oakes test was failed?
i. No pressing & substantial objective – inconsistent
portion struck down broadly
ii. No rational connection – severance
iii. No minimal intrusion OR disproportionate effects
– inconsistency can be defined as being the
provision left out that would carefully tailor it or
would avoid disproportionate effect.
Inconsistency would be declared inoperative –
statute extended by reading in
b. Nature of the right itself
i. Positive rights tend to carry special
considerations – more likely to fall in reading
down/in or striking down with suspended
declaration
ii. If the benefit conferred is constitutionally
guaranteed, reading in might be mandatory
SCHACHTER V CANADA
REMEDIES UNDER S 52(1)
Full analysis found in test directly above.
Two things to consider when determining the remedy is:
1. Have to have respect for the legislature - remedies should not be
creative, should try to honour the goals of the legislature (deference to
the legislature)
2. Respect for the purposes of the Charter - obligation to ensure Charter
rights are realized
SECTION 24(1) REMEDIES
SECTION 24(1) REMEDI ES
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter,
have been infringed or denied may apply to a court of competent
jurisdiction to obtain such remedy as the court considers appropriate and
just in the circumstances.
Section 24 provides remedies for unconstitutional acts by public officials
(how the law was applied).
AVAILABLE REMEDIES:
Declarations (ex. a public apology)
o
Often preferable because they are less flexible, require less
supervision, and are more deferential to other branches of
government
o
However they can suffer from vagueness, insufficient
remedial specificity, an inability to monitor compliance, and
an ensuing need for subsequent litigation to ensure
compliance (Little Sister)
Injunctions: Requirements are…
o
Is it a meritorious case?
o
Will they suffer irreparable harm?
o
Balance of convenience - who is inconvenienced more if the
legislation is suspended?
Damages
o
Hardly ever awarded, must be symbolic and egregious
conduct to do so
Advanced costs: may be available [Okanagan] if
o
Party genuinely cannot pay for the litigation and there is not
another realistic way for the case to go to trial
o
Claim to be adjudicated prima facie has to be meritorious
4
o
Issues raised have to transcend particular litigant, have to be
of public importance and not result from previous cases
Reporting Order (Doucet-boudreau)
Constitutional Exemption: allow exceptions to laws while upholding
them in principle.
o
Ruling on your case, but not all. Not applied much in
principle
o
Constitutional exemption example: safe injection site case in
Section 7
Stay of Proceedings
o
Criminal, typically if the trial took too long
Exclusion of evidence
o
Criminal
COURT OF COMPETENT JURISDICTION (PER S 24(1))
Superior courts (default)
Provincial courts (though not able to grant remedies prior to trial to
prevent a continuing violation; also, no Charter remedies available in
preliminary inquiries)
Statutory tribunals (if they have been given explicit or implicit power to
decide questions of law and if the legislature has not clearly withheld
authority to deal with Charter issues – see R v Conway, [2010] 1 SCR
765)
Courts are to approach Charter remedies purposively and meaningfully
uphold the sentiment that “where there is a right, there must be a remedy”
(Doucet-Boudreau v Nova Scotia (Minister of Education), [2003] 3 SCR 3 at
para 25).
This purposive approach consists of two specific requirements:
1) the remedy must be “responsive” and promote “the purpose of
the right being protected”;
2) the remedy must be effective
CHOOSING A REMEDY
5 Broad Considerations to consider when determining a just and
appropriate s 24 remedy (Doucet-Boudreau):
1. Meaningful vindication of the right
2. Must be legitimate for a court in a constitutional democracy (means
employed are constitutionally legitimate)
3. Appropriate to a court’s capacity and competence (respects the
functions and powers of the court)
4. Must be fair to the party against whom it is secured (does not impose
substantial hardships)
5. Judicial approach must remain flexible and responsive
Test for Awarding Charter Damages (Ward)
Plaintiff has established Charter breach
Damages necessary to fulfill objects of:
o
Compensation: focuses on the claimant’s personal loss
(physical, psychological, and pecuniary). Harm can include
distress, humiliation, embarrassment, and anxiety
o
Vindication: focuses on the harm caused to society by the
infringement
o
Deterrence: seeks to regulate/influence gov’t behaviour to
achieve compliance with the Charter
State has failed to establish any factors that render s. 24(1) damages
inappropriate or unjust in the circumstances
The quantum of damages equals the purpose of the damages award - should
be determined with a mind on fairness to the gov’t particularly as damages
are borne from the tax base.
DOUCET-BOUDREAU V NOVA SOCT IA (EDUCATION)
REMEDIES – STRUCTURAL INJUNCTIONS UNDER S 24(1)
Did the TJ exceed his jurisdiction? What is meant in s 24 by “appropriate and
just in the circumstances?”
Held: A superior court may craft any remedy that it considers appropriate
and just in the circumstances. CA erred in striking down the TJ’s reporting
order.
ESTABLISHED FIVE PRINCIPLES RELATING TO REMEDIES
1. Delay would have further harmed rights; instead took
pragmatic/creative approach; declaration of rights insufficient; there
had been lots of declarations all along—didn’t do anything; a need for
prompt compliance
2.
3.
4.
5.
Did not depart from constitutional principles – allowed for choices by
the executive
Courts have, in the past, ordered remedies with continued relations
between parties – here, appropriate because didn’t tell them to do
anything other than report back and have a plan
In the context, not unfair to government and not too vague. Order
could have been clearer, but it leaves it open to the government to
come up with a plan—party on other side can challenge the plan, and
court can then tell the gov’t to try again
Judicial approach must remain flexible – this is flexible
INTERPRETATION OF
CHARTER RIGHTS/
DEFINING THEIR SCOPE
THE NATURE AND INTER PRETATION OF CHARTER RIGHTS
The Charter establishes a two-step process for the adjudication of rights
claims.
1. Has a Charter right has been breached by a state act?
2. Is a limitation of a Charter right justified under s. 1?
a.
Limits must be prescribed by law
b. Reasonable
c.
Demonstrably justified
MOUNTED POLICE ASSOCIATION OF ONTARIO V CANADA
PURPOSIVE SCOPE - GENERALLY
As is the case with other Charter rights, the jurisprudence establishes that s.
2(d) must be interpreted in a purposive and generous fashion, having regard
to “the larger objects of the Charter . . ., to the language chosen to articulate
the . . . freedom, to the historical origins of the concepts enshrined, and
where applicable, to the meaning and purpose of the other specific rights
and freedoms with which it is associated within the text of the Charter”: Big
M Drug Mart. In order to determine whether a restriction on the right to
associate violates s. 2_ by offending its purpose, we must look at the activity
in question in its full context and history.
HUNTER V SOUTHAM INC
The courts have adopted a “purposive” approach to the interpretation of
Charter rights. Here, the court states that a judgement about the scope or
value of a particular right can be made only after the court has “specified
the purpose underlying” the right or “delineated the nature of the interests
it is meant to protect.”
What is the meaning of “unreasonable” in s 8?
Held: S 8 protects an individual’s reasonable expectation of privacy. The
provisions of the Combines Investigation Act that authorized the issuance of
a search warrant were found invalid.
An assessment of the constitutionality of a search and seizure must
focus on its reasonable or unreasonable impact on the subject of the
search and seizure, and not simply on its rationality in furthering some
valid government objective.
The Charter’s function is to provide a continuing framework for the
legitimate exercise of government power, and when joined by a bill of
a Charter of Rights, for the unremitting protection of individual rights
and liberties.
Analysis:
Unreasonable cannot be determined by its dictionary meaning nor by
statutory construction. Interpreting the Constitution is different from
interpreting statutes.
o
Must consider the future and the ability to grow over time
o
Must be given a broad, purposive analysis
o
Must first determine the nature of the interests the act is
trying to protect
S 27 and 28 help with interpretation of the Charter.
5
EDMONTON JOURNAL V A LBERTA (ATTORNEY GEN ERAL)
“CONTEXTUAL” AND “ABSTRACT” APPROACHES
Different approaches to the proper method of application of the
Charter: Abstract and Contextual
Same analytical steps, but which one is adopted may tend to affect the
result of the balancing process called for under s. 1.
o
Must ascertain the underlying value which the right alleged
to be violated was designed to protect.
o
Also must ascertain the legislative objective sought to be
advanced by the impugned legislation.
o
After that, if it’s evident that the objective can only be
reached if the right is limited, it must then be determined
whether the impugned legislation constitutes a reasonable
limit on the right which can be demonstrably justified in a
free and democratic society.
MEANING OF PURPOSIVE
The “purposive approach” is a method used by judges to interpret what
statutes (or laws) mean. The purposive approach requires a court to look at
the purpose of the statute, and Parliament’s (or a legislature’s) intention
when they created the statute, as well as the words written in the statute
itself. The words must be interpreted in the broader context of the statute
itself: R v Big M Drug Mart.
CONTEXTUAL AND ABSTRACT APPROACHES
In sum, a contextual approach to the interpretation of Charter rights requires
that the courts assess the value or significance of the right and its restriction
in their context rather than in the abstract.
In other words, it recognizes that the value associated with a particular
right or freedom may have differing value depending on the contest –
to not do this is to risk committing a kind of ecological fallacy (ie place X
value on Y right in the abstract, and then just assume that Y holds X
weight in all contexts)
See Edmonton Journal v Alberta
Example of this comes from Rodriguez and Carter cases:
In Rodriguez, SCC got hung up on the value of the sanctity of life in the
abstract when considering the interests and values that fall under s.7
(i.e. the right to life, liberty, and security of the person).
But in Carter, they were able to put the value of these rights into the
context of persons who seek to terminate their life when suffering from
a grievous and irremediable medical condition.
GENERAL AIDS TO INTERPRETATION OF THE CHARTER
Interpretive Provisions in the Charter
Parliamentary and Committee Debates
Canadian Pre-Charter Jurisprudence
Comparative and International Sources
“SOCIAL RIGHTS IN CA NADA” PATRICK MACKLE M
-
-
-
Recent cases have made it clear that the Court is not solely looking to
treaties that Canada has ratified for guidance when interpreting the
Charter: Suresh v Canada.
Canada’s international legal obligations under the ICESCR are therefore
relevant to the interpretation of domestic constitutional guarantees:
Canadian Egg Marketing Agency v Richardson.
In addition, the ICESCR is relevant to determinations of determining
what constitute reasonable limits on the exercise of a Charter right or
freedom, specifically whether a legislative objective is sufficiently
important to justify an infringement of a Charter guarantee: Slaight
Communications.
S1 ANALYSIS: OAKES TEST
INTRODUCTI ON TO SECT ION 1
1. The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.
The Charter “guarantees the rights and freedoms set out in it subject
only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society”
o
Rights are not absolute
“Most modern constitutions recognize that rights are not absolute and
can be limited if this is necessary to achieve an important objective and
if the limit is appropriately tailored, or proportionate.”
o
(Canada (Attorney General) v JTI-Macdonald Corp, [2007] 2
SCR 610 at para 36)
Section 1 is engaged after there is a finding that a right or freedom has
been limited/violated
The burden then lies with the party seeking to justify the limit (i.e., the
government)
o
Standard of proof: balance of probabilities (R v Oakes, [1986]
1 SCR 103)
Types of evidence:
Scientific and/or social science evidence
Where this is not available, reason and logic may suffice (RJR
MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199)
Hansard
Legislative preambles
Reports
Speeches
Testimony
Opinion polls
GREATER VANCOUVER TR ANSPORTATION AUTHORI TY V
CANADIAN FEDERATION OF STUDENTS – BRITIS H COLUMBIA
COMPONENT, 2009 SCC 31
PRESCRIBED BY LAW
The court distinguishes between challenges to government acts and
challenges to “laws”: Slaight Communications Inc v Davidson. In this case, it is
the policies that are being challenged, NOT the decisions made pursuant to
the policies.
IS IT LAW: Was the government entity authorized to enact the
impugned policies AND are the policies binding rules of general
application. If YES: Policies are “law”.
IS IT PRESCRIBED: Are the policies sufficiently precise and accessible.
GOVERNMENT POLICIES AND “PRESCRIBED BY LAW”
Does a given policy or rule emanating from a government entity satisfy the
“prescribed by law” requirement? A distinction is drawn between rules that
are legislative and rules that are administrative.
ADMINISTRATIVE: Administrative rules relate to the implementation of
laws contained in a statutory scheme and are created for the purpose
of administrative efficiency. The key question is thus whether the
policies are focused on “indoor” management. These do not fulfill the
“law” requirement.
LEGISLATIVE: In order to be legislative in nature, the policy must
establish a norm or standard of general application that has been
enacted by a government entity pursuant to a rule-making authority. A
rule‑making authority will exist if Parliament or a provincial legislature
has delegated power to the government entity for the specific purpose
of enacting binding rules of general application which establish the
rights and obligations of the individuals to whom they apply.
GENERAL RULE: Thus, where a government policy is authorized by statute
and sets out a general norm or standard that is meant to be binding and is
sufficiently accessible and precise, the policy is legislative in nature and
constitutes a limit that is “prescribed by law”.
6
R V OAKES
TEST FOR JUSTIFIABLE INFRINGEMENTS OF CHARTER RIGHTS
As soon as it is proven that a rule of law challenged under the Canadian
Charter interferes with one of its fundamental rights, the government
has the possibility of justifying the use of this rule – thus allowing its
application despite the wronged right – by completing the Oakes test.
The expression “free and democratic society” includes all the principles
underlying the constitution. Therefore, the interpretation of Article
1must be done in the eyes of these principles.
THE OAKES TEST
Does s 8 of the Narcotic Control Act impose a presumption of guilt in
violation of s. 11(d) of the Charter?
Judges establish a test for the application of 1 Canadian Charter:
The standard of proof is civil, since criminal proof (beyond all reasonable
doubts) would be too severe. The evidence must be strong and persuasive
and there must be no reasonable substitute means. Two fundamental criteria
must be met to meet the criterion of justification:
1.
2.
a)
b)
c)
The objective of the rule of law is pressing and substantial.
The means chosen to attain this legislative end must be reasonable
and demonstrably justifiable in a free and democratic society.
There is a rational connection between the objective and the effect of
the law.
The rule of law constitutes a minimal impairment of the protected right
in order to fulfill the legislative objective.
The harmful effects are less important than the beneficial effects; aka
there must be a proportionality between the effect of the measure and
its objective.
The expression “free and democratic society” includes all the principles
underlying the constitution. Therefore, the interpretation of Article 1 must
be made in the light of these principles.
Another point is the need to establish the burden of proof. The complainant
must first prove that there is a violation within the meaning of the Charter.
Next, the government must prove that the restriction is reasonable.
ANALYSIS:
Issue 1
Administrative decision-makers must act in a manner consistent with the
values underlying the grant of discretion, including the values enshrined in
the Charter. Their decision is subject to the Charter. There are two main
positions regarding the standard of review used to determine whether an
administrative decision complies with the Charter:
1. Use the Oakes test for judicial review. (Slaight Communications) The
review standard is the correctness standard. Reduces the role of
administrative law, loss of a resource -› judges administrative
authorities are better placed to assess the interests involved. The test is
not adapted to the context of administrative decisions and is difficult
to apply… e.g.: What would constitute the “urgent and real” objective
of an administrative decision?
2. Assumes that administrative decisions always take into consideration
the Charter values. Flexible approach that leaves greater freedom to
the administrative decision-maker in the balance of interests involved…
(Baker v. Canada & Dunsmuir v. New Brunswick).
a.
Advantages: More compatible with the nature of
administrative decisions.
b. Draws an analogy with the application of the Charter to
common law rules -› choice not to strictly apply the Oakes
test…
Position 2 is adopted. Administrative decision-makers gain a great deal of
knowledge of the imperatives and intricacies of the legislative regimes
involved. The administrative decision-maker is better placed to judge the
impact of Charter value in the specific facts of the case because of this
expertise and its proximity to the facts.
Issue 2
He or she balances these values against the objectives of the law. The
decision maker must ask how best to protect the value at stake enshrined in
the Charter matters considering the objectives set out in the law.
Issue 3
In light of the excessive degree of vituperation in the letter's content and
tone, it cannot be said that this conclusion is the result of an unreasonable
balancing Mr. Doré’s right to freedom of expression, on the one hand, and
the objectives targeted by the law, on the other hand.
S2(A) RELIGION
S2(A) FREEDOM OF CONSIENCE AND RELIGION
IRWIN TOY LTD. V QUE BEC
DETERMINING DEFERENCE OWED ACCORDING TO CONTEXTUAL FACTORS
How much deference should courts pay to legislatures when applying the
Oakes test?
In asking whether rights or freedoms are impaired as little as possible,
legislatures forced to strike a balance without absolute certainty - usually do
not have scientific certainty and therefore have to find a balance.
Vulnerable groups will claim to need government protection; others will
assert that the government should not intrude
"Courts must be cautious to ensure that [the Charter] does not simply
become an instrument of better situated individuals to roll back legislation
which has as its object the improvement of the condition of less advantaged
persons."
Courts have to balance competing claims of whether the least intrusive
means were taken or not.
When government purpose relates to "maintaining the authority and
impartiality of the judicial system" courts are pretty well able to
determine least intrusive means because well versed in this area tougher with different parts of law.
DORÉ V BARREAU DU QU EBEC
REASONABLE LIMITS AND ADMINSTRATIVE DECISIONS
Does the presence of a Charter issue call for the replacement of the
criterion for review of administrative decisions?
How does an administrative decision maker apply Charter values in the
exercise of statutory discretion?
Determine whether the Committee’s conclusion was justified in
reprimanding the appellant under s 2.03 of the Code of Ethics.
2. Everyone has the following fundamental freedoms:
a. freedom of conscience and religion.
CHARTERPEDIA DEFINITION
The purpose of section 2(a) is to prevent interference with profoundly held
personal beliefs that govern one’s perception of oneself, humankind,
nature, and, in some cases, a higher or different order of being (R. v.
Edwards Books and Art Ltd.; R. v. Big M Drug Mart Ltd.; Syndicat Northcrest v.
Amselem; Alberta v. Hutterian Brethren of Wilson Colony).
PURPOSIVE SCOPE OF THE RIGHT: R. MOON
The scope of freedom of religion is derived from its history and the range of
activities to which it applies — holding, proclaiming and transmitting beliefs
in the bosom of a secular state (R. Moon, “Freedom of Conscience and
Religion”, in Mendes and Beaulac, 339).
GENERAL PRINCIPLES OF ANALYSIS
1. DEFINITION: Freedom of religion has been defined as “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 practise or by
teaching and dissemination”: Big M Drug Mart, Amselem, Multani.
a.
The term “religion” has not been specifically defined,
although the Supreme Court has stated that beliefs or
practices rooted in secularism are not protected by the
guarantee of freedom of religion and, further, that “religion”
typically involves: a particular and comprehensive system of
faith and worship; a belief in a divine, superhuman or
controlling power; and/or a personal conviction or belief
that fosters a connection with the divine or with the
7
2.
3.
4.
5.
6.
subject or object of that spiritual faith (Amselem). Note,
however, that the Court has also stated that the rights of
atheists, agnostics, skeptics and the unconcerned are equally
protected by section 2(a) (Hutterian Brethren).
INTERPRETATION: The Supreme Court has interpreted section 2(a)
broadly with a stated preference for leaving competing state interests,
including competing rights, to be reconciled under section 1, or through
the proportionality analysis in the case of judicial review of
administrative decisions, rather than formulating internal limits to the
scope of freedom of religion: Whatcott.
a.
Section 1 is considered a more flexible tool for balancing
competing rights (very often equality rights of other
individuals) (Children’s Aid Society of Metropolitan Toronto).
In spite of the guarantee’s broad scope, however, the Court
has also set certain limits, stating that “the freedom to hold
beliefs is broader than the freedom to act on them” (Trinity
Western University v. British Columbia College of Teachers).
WHEN IT INTERFERES WITH OTHERS: The Supreme Court has stated on
many occasions that freedom of religion can be limited where it
interferes with the fundamental rights of others (Big M Drug Mart,
Amselem). When individual rights come into conflict, the conflict ought
to be resolved through the proper delineation of the rights and values
involved (Trinity Western).
BALANCING RIGHTS AT PROPORTIONALITY STAGE: In Law Society of
British Columbia v. Trinity Western University, and its companion case
Trinity Western University v. Law Society of Upper Canada, the Supreme
Court chose to reconcile the competing religious freedom of evangelical
community members of TWU with the equality rights of LGBTQ persons
through the proportionality analysis at the second stage of the
Doré/Loyola framework for the judicial review of administrative
decisions that engage Charter rights.
LIMITED SCOPE: The scope of section 2(a) is not, however, without
limits. In Ktunaxa, a majority of the Supreme Court held that an
Indigenous spiritual freedom claim to the protection of a sacred
mountain valley site from a proposed ski resort development did not
fall within the scope of section 2(a), which does not protect the object
of beliefs, or the spiritual focal point of worship and the subjective
meaning derived from them.
INDIVIDUAL AND COLLECTIVE ASPECT: Freedom of religion comprises
both an individual aspect and a collective aspect: Hutterian Brethren.
The Supreme Court has noted that religion is about both religious
beliefs and “religious relationships”: Law Society v TWU.
ANALYTICAL FRAMEWORK
The Supreme Court has adopted the following TEST for determining whether
there has been an infringement of section 2(a): Hutterian Brethren, Amselem,
Multani, Law Society of BC v TWU.
AN INFRINGEMENT OF S2(A) FREEDOM OF RELIGION:
STEP 1: The claimant sincerely believes in a belief or practice that has a
nexus with religion; and
STEP 2: The impugned measure interferes with the claimant’s ability to act
in accordance with his or her religious beliefs in a manner that is more than
trivial or insubstantial.
1. NATURE OF THE BELIEF OR PRACTICE:
Under the first step, as stated above, freedom of religion will only be
triggered where the claimant shows that he or she has a sincere
practice or belief that has a nexus with religion, “which calls for a
particular line of conduct, either by being objectively or subjectively
obligatory or customary, or by, in general, subjectively engendering a
personal connection with the divine or with the subject or object of an
individual’s spiritual faith”: Amselem.
Sincerity of belief is a question of fact. To establish sincerity, an
individual must show that he or she sincerely believes that a certain
belief or practice is required by his or her religion. The religious belief
must be asserted in good faith and must not be fictitious, capricious or
an artifice. In assessing the sincerity of the belief, a court will consider,
inter alia, the credibility of the testimony of the person asserting the
particular belief and the consistency of the belief with his or her other
current religious practices: Multani, Amselem. It is the sincerity of the
belief at the time of the interference, not its strength or absolute
consistency over time, that is relevant at this stage of the analysis: R v
N.S.
The Court does not want to engage in theological debates when
examining the practice or belief in question. The practice or belief in
question need not be required by official religious dogma nor need it be
in conformity with the position of religious officials. Freedom of religion
extends beyond obligatory doctrine to voluntary expressions of faith
and is not restricted to major and recognizable religions (Amselem).
2. NATURE OF THE INTERFERENCE
All coercive burdens on the exercise of religious beliefs are potentially
within the ambit of section 2(a), whether a coercive burden is direct or
indirect, intentional or unintentional, foreseeable or unforeseeable and
may also include psychological pressure (Edwards Books). Directly
compelling religious belief or practice clearly infringes section 2(a) as
compelling religious practice deprives the individual of the fundamental
right to choose his or her mode of religious experience, or lack thereof
(Hutterian Brethren). Religious freedom is also inevitably abridged by
legislation which has the effect of impeding conduct integral to the
practice of a person's religion (Edwards Books).
However, the Constitution shelters individuals and groups only to the
extent that religious beliefs or conduct might reasonably or actually
be threatened. Claimants must provide objective proof of interference,
not just cite subjective belief of interference (S.L). Not every effect of
legislation on religious beliefs or practices is offensive to the guarantee
of freedom of religion. Section 2(a) does not require the legislature to
refrain from imposing any burdens on the practice of religion.
Legislative or administrative action which has a trivial or insubstantial
effect on religion is not a breach of freedom of religion, yet there is no
requirement to demonstrate actual harm, only that the freedom is
infringed (Ross; Edwards Books; Little). Trivial or insubstantial
interference has been described as interference that does not threaten
actual religious beliefs or conduct (Hutterian Brethren).
AN INFRINGEMENTS OF S2(A) FREEDOM OF CONSCIOUS:
While the Supreme Court has not given much consideration to freedom
of conscience, it has noted that this aspect of section 2(a) includes the
right not to have a religious basis for one's conduct (Edward Books). In
the concurring judgment of Wilson J. in R. v. Morgentaler, freedom of
conscience was distinguished from freedom of religion as follows:
““Freedom of conscience and religion" should be broadly construed to
extend to conscientiously-held beliefs, whether grounded in religion or in a
secular morality and the terms "conscience" and "religion" should not be
treated as tautologous if capable of independent, although related,
meaning…”
The Federal Court of Appeal has held that freedom of conscience is
aimed more broadly at protecting views based on strongly held moral
ideas of right and wrong, not necessarily founded on any organized
religious principles, and distinguishable from political or other beliefs
which are protected by section 2(b) freedom of expression (Roach).
SYNDICAT NORT HCREST V AMSELEM
ESTABLISHES TEST FOR FREEDOM OF RELIGION
THIS CASE DEALS WITH QUEBEC CHARTER, NOT CANADIAN CHARTER.
Facts: Succah Case – Freedom of religion infringed when Quebec Condo
Association refused construction of succah on balcony.
Held: Appeal allowed; infringement found.
TEST FOR SCOPE OF PROTECTION FOR FREEDOM OF RELIGION:
(1a) Has a belief or practice that has a nexus with religion
Either person believes it’s required by religion or believes it engenders
a personal, subjective connection to the divine
(1b) That he or she is sincere in his or her belief
Then – freedom of religion will be triggered
(2) Interference more than trivial or insubstantial
*Note: s. 2(a) prohibits only burdens on religion that are non-trivial
No right is absolute – also, protection considers relation to other rights
at conflict
IMPORTANT NOTES FOR ANALYSIS
An important feature of our constitutional democracy is respect for
minorities, which includes, of course, religious minorities: Reference re
Secession of Quebec. Indeed, respect for and tolerance of the rights
and practices of religious minorities is one of the hallmarks of an
enlightened democracy. But respect for religious minorities is not a
8
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stand-alone absolute right; like other rights, freedom of religion exists
in a matrix of other correspondingly important rights that attach to
individuals. Respect for minority rights must also coexist alongside
societal values that are central to the make-up and functioning of a free
and democratic society. This appeal requires the Court to deal with the
interrelationship between fundamental rights both at a conceptual
level and for a practical outcome.
Not the job of the courts to adjudicated questions of doctrine. Courts
are not to act as theologians.
R V BIG M DRUG MART LTD.
STATE CANNOT COMPELL TO OBSERVE RELIGIOUS PRACTICE
Facts: Lord’s Day Act - Big M charged with doing business on Sunday. Big M
challenges constitutionality as infringing on freedom of religion.
Held: Finding that Act compelled observance of religious practice, not
justified under s.1.
FREEDOM OF RELIGION ENTAILS:
Absence of coercion or constraint;
The right to manifest beliefs and practices.
NOT an absolute right. Limited by: Public safety, order, health, morals, or the
fundamental rights and freedoms of others.
IMPORTANT QUOTE: “What may appear good and true to a majoritarian
religious group, or to the state acting at their behest, may not, for religious
reasons, be imposed upon citizens who take a contrary view. The Charter
safeguards religious minorities from the threat of "the tyranny of the
majority".”
MOUVEMENT LAÏQUE QUÉ BÉCOIS V. SAGUENAY ( CITY)
STATE MUST REMAIN RELIGIOUSLY NEUTRAL
Facts: Catholic Prayer at Public Meetings - Municipal council’s meetings
commenced with Catholic prayer. Atheist objected under Quebec Charter.
Held: Recitation of prayer at public meetings amounts to exclusion of nonpracticing persons. Breach of state’s duty to neutrality.
The state MUST remain neutral in regard to particular beliefs/nonbeliefs. The state must abstain from taking any position and thus avoid
adhering to a particular belief.
COURT HERE SUMMARIZES TEST FROM AMSELEM
1. Complainants belief is sincere,
2. Complainant’s ability to act in accordance with his or her beliefs has
been interfered with in a manner that is more than trivial or
insubstantial (Hutterian Brethren).
Such an infringement, where it arises from a distinction based on religion,
impairs the right to full and equal exercise of freedom of conscience and
religion (Ford). The result is discrimination that is contrary to that freedom
and to the state’s duty of religious neutrality that flows from it.
MULTANI V. COMMISSIO N SCOLAIRE MARGUERIT E-BOURGEOYS
ALL RELIGIOUS PRACTICES MERIT A LEVEL OF PROTECTION
Facts: Kirpan case – Ban on Sikh student carrying Kirpan to school violated
religious freedom.
Held: Violation could not be justified under s.1.
“A total prohibition against wearing a kirpan to school undermines the
value of this religious symbol and sends students the message that some
religious practices do not merit the same protection as others. On the other
hand, accommodating Gurbaj Singh and allowing him to wear his kirpan
under certain conditions demonstrates the importance that our society
attaches to protecting freedom of religion and to showing respect for its
minorities. The deleterious effects of a total prohibition thus outweigh its
salutary effects.”
ALBERTA V HUTTERIAN BRETHREN OF WILSON C OLONY
INFRINGMENT OF FREEDOM OF RELIGION JUSTIFIED
Facts: Photo Hutterite case – Hutterites must have photos taken for licenses,
object on religious grounds.
Held: Justifiable infringement under s.1. Split court.
Court applies Amselem test; Religious freedom justified.
REALLY USEFUL GUIDE FOR FREEDOM OF RELIGION/OAKES ANALYSIS
1. Context and deference: complex regulatory response to a social
program = more deference
2.
P&S: Yes - maintaining integrity of licensing drivers, in a way that
minimizes the risk of identity theft and interprovincial/international
harmonization of photos on driving licenses
3. Proportionality: Yes
i.
RC: Yes - a universal requirement is more effective than a
system that grants exemptions
ii.
MI: Yes - minimally impairs & falls within range of
reasonable options. No alternative means that would
substantially satisfy the government’s objective while
allowing the claimants not to be photographed. Falls within
a range of reasonable alternatives – remember, not a
reasonable accommodation test, but a minimally impairing
test
iii.
D&S: Yes - when balancing the effects, impact of the limit is
proportionate. S effects are significant, and court says actual
D impact is limited (could hire a driver, not deprived of all
choice)
DISSENT: Deleterious effects: not given meaningful choice – must give up
religious beliefs, or their self-sufficiency that has given community its
independence (gov’t fails to discharge burden).
KTUNAXA NATION V. BR ITISH COLUMBIA (FORE STS, LANDS
AND NATURAL RESOURCE OPERATIONS)
INDIGENOUS BELIEFS AND FREEDOM OF RELIGION/RACIST RULING
Significance: The majority of the court was not prepared to accept that s.
2(a) of the Charter protects a right to a sacred site. Does not protect places or
things, just rights to practice and disseminate
While the court held that it is undisputed that the Ktunaxa sincerely
believe in the Grizzly Bear Spirit and that permanent development in
Qat’muk would drive this spirit away, the court held that their freedom
of religion was not engaged and characterized the Ktunaxa position as
seeking a veto over development.
Facts: Resort wants gov approval to build ski resort in the place where
Ktunaxa believe to be home to Grizzly Bear Spirit, a principal spirit within
their religious beliefs and cosmology.
Held: Finding AGAINST Ktunaxa, no religious infringement found.
APPLICATION OF ANSELEM TEST
1. Sincere belief that has nexus with religion: MET.
2. Non-trivial and insubstantial interference with ability to act in
accordance with said belief/practice: Not met. NOT MET.
“The Ktunaxa must show that the Minister’s decision to approve the
development interferes either with their freedom to believe in Grizzly Bear
Spirit or their freedom to manifest that belief. Yet the Ktunaxa are not
seeking protection for the freedom to believe in Grizzly Bear Spirit or to
pursue practices related to it. Rather, they seek to protect the presence of
Grizzly Bear Spirit itself and the subjective spiritual meaning they derive
from it. This is a novel claim that would extend s. 2(a) beyond its scope and
would put deeply held personal beliefs under judicial scrutiny. The state’s
duty under s. 2(a) is not to protect the object of beliefs or the spiritual focal
point of worship, such as Grizzly Bear Spirit. Rather, the state’s duty is to
protect everyone’s freedom to hold such beliefs and to manifest them in
worship and practice or by teaching and dissemination.”
MAURICE V CANADA (AT TORNEY GENERAL)
FREEDOM OF CONSCIENCE
VEGETARIANISM
Facts: Inmate demands to be fed a vegetarianism meal plan and appeals
denial of request under freedom of belief/conscious.
Held: Vegetarianism is protected under s2(a) of the Charter.
KEY QUOTES AND COMMENTARY
“Vegetarianism is a dietary choice, which is founded in a belief that
consumption of animal products is morally wrong. Motivation for
practising vegetarianism may vary, but, in my opinion, its underlying
belief system may fall under an expression of "conscience".”
“Therefore, in my opinion, just as the entitlement for a religious diet
may be found in s. 2(a) of the Charter, a similar entitlement for a
vegetarian diet exists based on the right to freedom of conscience.”
9
S2(B) EXPRESSION
S2(B) FREEDOM OF THOUGHT, BELIEF, OPI NION AND
EXPRESSION
2. Everyone has the following fundamental freedoms:
b. freedom of thought, belief, opinion and expression, including freedom of
the press and other media of communication.
PURPOSIVE SCOPE OF S2(B)
The scope of freedom of expression is defined by the different forms it takes
and the different interests it protects — including, notably, “the quest for
truth, self-fulfillment, and an embracing marketplace of
ideas”: Saskatchewan (Human Rights Commission) v. Whatcott
Rationale for importance of freedom of expression:
Suppression of ideas can be dangerous: Competition in the “marketplace”
of ideas: Ford v Quebec.
HATE SPEECH
Hate speech in Canada is currently restricted or regulated by both federal
and provincial laws. The Criminal Code of Canada prohibits three kinds of
“hate propaganda”:
1. Section 318(1) prohibits the advocacy or promotion of genocide.
2. Section 319(1)prohibits the incitement of hatred against an identifiable
group, when this incitement is likely to lead to a breach of the peace.
3. Section 319(2) prohibits the wilful promotion of hatred against an
identifiable group.
*As well, s.320 enables a court to order the seizure or erasure of material
that the court determines to be “hate propaganda”.
ANALYTICAL FRAMEWORK
Most of the work done in a freedom of expression analysis will take
place under Section 1 (Oakes Test). This is because any and all
expressive speech is protected under the Charter – infringements are
common.
Under-inclusive legislation will not violate free expression rights:
Harper.
Limits are likely to be upheld when expression strays from protected
core of expressive acts.
AN INFRINGEMENT OF S2(A) FREEDOM OF EXPRESSION: IRWIN TOY
1. Does the activity have expressive content, or convey meaning, so that
it is protected under s 2(b)? [Irwin Toy].
Content is irrelevant, what matters is if it is expressive [Keegstra]
Protects listeners and speakers [Harper]
Corporations have freedom of expression
No obligation on the government to ensure/uplift this right – only
protect from infringement
2. Does the method or location of this expression remove that
protection?
Violence [Khawaja] and hate [Whatcott] is not protected
Does the location (private or public property) waive protection?
[Montreal v 2952-1136)
Sexually explicit material is protected unless the ‘substantial risk of
harm it creates exceeds the community’s level of tolerance for such
material – (1) explicit sex with violence, (2) explicit sex that is
‘degrading or dehumanizing;’ (3) children. (Butler)
3. Does the government action in question infringe on that protection?
a.
If the purpose of legislation is to restrict content of expressive
material: violation, move to s 1
Content-based restrictions refer to where gov’t singles out particular
meanings
Form-based restrictions refer to where gov’t restricts the form of the
expression to (1) control access by others to the meaning being
conveyed, or (2) to control the ability of the one conveying the meaning
b. If the purpose of legislation was not to restrict, but there is in effect a
restraint on the form and content of expressive material: no automatic
violation. To find violation, the activity must promote an underlying
principle of s. 2b (Ford):
4.
Pursuit of truth – an inherently good activity
Self-fulfilment and human flourishing (Ramsden)
Participation in social or political decision-making (Harper)
Keegstra: “political process rationale, marketplace of ideas, selfrealization”
If infringed: conduct a s. 1 analysis. If not infringed: done analysis
R V KEEGSTRA
APPLICATION OF IRWIN TOY AND OAKES
Facts: Anti-Semitic Teacher - Keegstra, high school teacher, tells class Jews
are evil and doubts Holocaust. Charged with promoting hatred against a
group under s319(2) of CC. Objects on freedom of expression.
S319(2) “Every one who, by communicating statements, other than in
private conversation, wilfully promotes hatred against any identifiable
group is guilty of (a) an indictable offence and is liable to imprisonment
for a term not exceeding two years; or (b) an offence punishable on
summary conviction.”
Held: Court upheld legislation under which the teacher was charged because
it did not suffer from vagueness or broadness, and sought to eliminate racism
and hatred.
1. S319(2) CRIMINAL CODE: INFRINGEMENT OF FREEDOM OF
EXPRESSION? The Court concluded that it was after applying the twostep analysis established in an earlier Supreme Court case, Irwin Toy
Ltd. v. Quebec (Attorney General).
IRWIN TOY STEP 1: Requires a determination of whether the allegation
of infringement of freedom of expression falls within the ambit of
Section 2(b) of the Charter. Under this first step, the majority concluded
that expression is protected when it attempts to convey a meaning.
Dickson further asserted that the meaning or message of the
expression was irrelevant even if, as in this case, it publicly promoted
hate.
IRWIN TOY STEP 2: requires a determination of whether the
government action had been taken in order to restrict freedom of
expression. Dickson concluded that Section 319(2) sought to prevent a
particular expression and thus satisfied the second part of the analysis.
2. LIMITATION OF EXPRESSION UPHELD UNDER S1? The majority
judgment answered affirmatively. In this regard, Dickson adopted the
approach utilized in R. v. Oakes, where first it had to be established that
the objective of the legislation was of a pressing and substantial nature.
OAKES ANALYSIS
Dickson determined that the objective of the legislation was indeed
pressing and substantial because expression promoting hatred to
identifiable groups unduly inhibits multiculturalism in Canada.
o
On this matter, the majority judgment referenced
international instruments to which Canada is a signatory
that encourage states to enact legislation against the
promotion of hatred.
Next, the majority judgment determined that Section 319(2) complied
with the proportionality requirement of the Oakes test. Dickson
established that under the proportionality requirement, there was a
rational connection between Parliament’s objective and the belief that
criminal law is the most effective means to suppress the harm caused
by hate propaganda.
Further, Section 319(2) established a minimal impairment to freedom
of expression. The provision does not suffer from vagueness or
broadness, as it excludes private conversations, and the accused has
the ability to invoke the defense available in Section 319(3).
Finally, the majority judgment reaffirmed the importance of the
objective of the impugned legislation to have a free and democratic
society by trying to eliminate racism and hatred.
R V ZUNDEL
S2(B) APPLIES TO EXPRESSIONS THAT “EXCITE POPULAR PREJUDICE”
Facts: Anti-Semitic Literature – Zundel charged with spreading false news
contrary s181 of the CC. Published pamphlet “Did Six Million Really Die?”
perpetuating Jewish conspiracy theories.
S181(2) “[e]very one who wilfully publishes a statement, tale or news
that he knows is false and causes or is likely to cause injury or mischief
10
to a public interest is guilty of an indictable offence and liable to
imprisonment…”
Held: Impugned legislation held unconstitutional.
Section 181 can be used to inhibit statements which society considers
should be inhibited, like those which denigrate vulnerable groups. Its
danger, however, lies in the fact that by its broad reach it criminalizes a
vast penumbra of other statements merely because they might be
thought to constitute a mischief to some public interest, however
successive prosecutors and courts may wish to define these terms…
These examples illustrate s. 181's fatal flaw -- its overbreadth.
I, for one, find cold comfort in the assurance that a prosecutor's
perception of "overall beneficial or neutral effect" affords adequate
protection against undue impingement on the free expression of facts
and opinions. The whole purpose of enshrining rights in the Charter is
to afford the individual protection against even the well-intentioned
majority. To justify an invasion of a constitutional right on the ground
that public authorities can be trusted not to violate it unduly is to
undermine the very premise upon which the Charter is predicated.
SUMMARY: The broad range of expression caught by s. 181 -extending to virtually all controversial statements of apparent fact
which might be argued to be false and likely do some mischief to some
public interest --, combined with the serious consequences of
criminality and imprisonment, makes it impossible to say that s. 181 is
appropriately measured and restrained having regard to the evil
addressed -- that it effects a "minimal impairment" to use the language
of Oakes. Section 181 is materially different, in this regard, from s.
319(2) -- the provision upheld under s. 1 by the majority of this Court in
Keegstra.
-
CANADA (HUMAN RIGHTS COMMISSION) V TAYLO R
PROVINCIAL HUMAN RIGHTS CODE AND HATE SPEECH
The Court ruled that hate speech prohibitions limit freedom of expression
by prohibiting certain kinds of speech from entering the public sphere, but
this infringement was justified.
Facts: Christian Truth Activists Flyers – Two flyers: “Keep Homosexuality out
of Saskatoon’s Public Schools”, “Sodomites in our Public Schools” highly
offensive to homosexual peoples. Complainants alleged violation of s14 of
Saskatchewan Human Rights Code. Activists appeal freedom of expression.
Held: Sask Human Rights Code violates freedom of expression and religion,
but is saved under s1. Flyers in question violated Sask Human Rights Code,
complainants entitled to compensation.
ISSUE BY ISSUE
What is the definition of hatred in Sask Human Rights Code?
Courts must objectively apply hate speech prohibitions. Judges must set
aside their personal opinions and consider what a reasonable person,
who is aware of the relevant context and circumstances, would think.
“Hatred” is restricted to extreme emotions described by the words
“detestation” and “vilification.” “Hatred” does not include merely
offensive and hurtful expression.
Courts must focus on the effect of the expression and not the
intentions of the author. Courts consider whether a reasonable person,
viewing the expression objectively and with knowledge of the
circumstances, would consider the expression as exposing the members
of the group to discrimination.
Does s14 infringe Freedom of Expression?
Hate speech is protected by section 2(b) of the Charter because it
conveys a meaning and, therefore, has expressive content. By
prohibiting hate speech, the Saskatchewan Human Rights Code violates
freedom of expression.
OAKES ANALYSIS
1. Pressing and substantial objective?
The Saskatchewan Human Rights Code prohibits hate speech for the
purpose of promoting equality, recognizing the dignity of all human
beings, and eliminating discrimination. The Supreme Court ruled that
these objectives are sufficiently important to limit freedom of
expression because hate speech has the potential to expose vulnerable
groups to discrimination, ostracism, segregation, deportation, violence,
and genocide.
2. Proportional to the objective?
a.
Rational Connection: Prohibiting expression that exposes
vulnerable groups to “hatred” is rationally connected to the
objective of reducing discrimination. Additionally, section 14
REGARDING HATE AND HATE SPEECH
Facts: Appellants gave out cards to call racist phone line. Canadian Human
Rights Commission found the practice discriminatory under s13(1) of
Canadian Human Rights Act. Cease and desist filed with Federal Court.
Appellants argue s13(1) in violation of s2(b) of Charter.
Held: Finding against appellants, no Charter violation. S13(1) constitutional.
KEY QUOTES FROM DECISION
The phrase "hatred or contempt" in the context of s. 13(1) refers only
to unusually strong and deep-felt emotions of detestation, calumny
and vilification and, as long as human rights tribunals continue to be
well aware of the purpose of s. 13(1) and pay heed to the ardent and
extreme nature of feeling described in that phrase, there is little
danger that subjective opinion as to offensiveness will supplant the
proper meaning of the section.
DEFINITION OF HATRED: “active dislike, detestation, enmity, ill-will,
malevolence.” Court also considered contempt: “the condition of being
condemned or despised; dishonour or disgrace.”
“As there is no definition of "hatred" or "contempt" within the
[Canadian Human Rights Act] it is necessary to rely on what might be
described as common understandings of the meaning of these
terms. Clearly these are terms which have a potentially emotive
content and how they are related to particular factual contexts by
different individuals will vary. There is nevertheless an important core
of meaning in both, which the dictionary definitions capture. With
"hatred" the focus is a set of emotions and feelings which involve
extreme ill will towards another person or group of persons. To say
that one "hates" another means in effect that one finds no redeeming
qualities in the latter. It is a term, however, which does not necessarily
involve the mental process of "looking down" on another or others. It
is quite possible to "hate" someone who one feels is superior to one in
intelligence, wealth or power. None of the synonyms used in the
dictionary definition for "hatred" give any clues to the motivation for
the ill will. "Contempt" is by contrast a term which suggests a mental
process of "looking down" upon or treating as inferior the object of
one's feelings. This is captured by the dictionary definition relied on
in Taylor . . . in the use of the terms "despised", "dishonour" or
"disgrace". Although the person can be "hated" (i.e. actively disliked)
and treated with "contempt" (i.e. looked down upon), the terms are
not fully coextensive, because "hatred" is in some instances the
product of envy of superior qualities, which "contempt" by definition
cannot be.”
SUMMARY: The language employed in s. 13(1) of the Canadian Human
Rights Act extends only to that expression giving rise to the evil sought
to be eradicated and provides a standard of conduct sufficiently precise
to prevent the unacceptable chilling of expressive activity. Moreover,
as long as the Human Rights Tribunal continues to be well aware of the
purpose of s. 13(1) and pays heed to the ardent and extreme nature of
feeling described in the phrase "hatred or contempt", there is little
danger that subjective opinion as to offensiveness will supplant the
proper meaning of the section.
“REPORT TO T HE CANAD IAN HUMAN RIGHTS COM MISSION
CON CERNING S ECTION 13 OF T HE CAN ADIAN HUMAN RIGHTS
ACT AND T HE REGULATI ON OF HATE SPEECH ON THE
INTERNET” RICHARD MO ON
HATE SPEECH ON THE INTERNET
RECCOMENDATION THAT S13 BE REPEALED FROM HUMAN RIGHTS ACT
NOTE: S13 was repealed in 2013.
“Hate speech should continue to be prohibited under the Criminal Code but
this prohibition should be confined to expression that advocates, justifies
or threatens violence. In the fight against hate on the Internet, police and
prosecutors should make greater use of section 320.1 of the Criminal Code,
which gives a judge power to order an Internet service provider (ISP) to
remove “hate propaganda” from its system. Each province should establish a
provincial “Hate Crime Team,” composed of both police and Crown law
officers with experience in the area, to deal with the investigation and
prosecution of hate crimes including hate speech under the Criminal Code.”
SASKATCHEWEN (HUMAN RIGHTS COMMIS SION) V WHATCOTT
11
b.
only prohibits public communication aimed at vulnerable
groups that are protected by legislation, such as the disabled
and gay people.
Minimal Impairment: Under the minimal impairment branch
of the proportionality test, the legislation being examined,
section 14(1)(b) of the Saskatchewan Human Rights Code in
this case, must achieve its objective while only minimally
impairing the Charter right or freedom. Whatcott proposed
two alternatives that would impair his freedom of
expression less than the Saskatchewan Human Rights
Code. The alternatives proposed to the Court were:
i. Eliminate hate speech prohibitions and trust the
“marketplace of ideas” to balance competing
rights. Discourages minority participation because
hate speech makes them seem less worthy or
“marketable”.
ii. Hate speech should be prosecuted under
the Criminal Code, not human rights legislation.
CC only prohibits most extreme forms of hate
speech that explicitly promote violence. Issue of
access to justice if limited to CC.
KEY QUOTE FOR MINIMAL IMPAIRMENT ANALYSIS AND DEFERENCE
The Court determined that the legislature does not have to enact the best
legislation possible in order to minimally infringe or impair a right. Because
reducing discrimination is a complex policy issue, the means chosen by the
legislature to remedy the problem are usually respected. If the legislation is
one of several reasonable solutions available, the Court must respect the
legislature’s decision.
c.
Salutary and Deleterious Effects: The SCC found that
promoting equality, respecting human dignity, and reducing
discrimination outweigh the negative effects of minimally
infringing freedom of expression. The prohibition on hate
speech strikes the appropriate balance between respecting
freedom of expression and equality rights.
R V BUTLER
REGULATION OF SEXUAL EXPRESSION AND FREEDOM OF EXPRESSION
IN THE CASE WE’RE DEALING WITH SEXUALLY EXPLICIT MATERIALS BEING
REGULATED START WITH THIS CASE THEN PROCEED TO LITTLE SISTER.
Facts: Hard-core porn shop owner prosecuted under s163 for selling
“obscene” materials.
163(1) “Every person commits an offence who makes, prints, publishes,
distributes, circulates or has in their possession for the purpose of
publication, distribution or circulation any obscene written matter,
picture, model, phonograph record or any other obscene thing.
S163(8) “… any publication a dominant characteristic of which is the
undue exploitation of sex, or of sex and any one or more of the
following subjects, namely, crime, horror, cruelty and violence.”
Held: Infringement justified under s1; appeal allowed based on errors of
MBCA. New trial ordered.
SEXUALLY EXPLICIT MATERIAL AND THE CHARTER
Sexual explicit material is protected by s. 2(b) freedom of expression unless
the ‘substantial risk of harm it creates exceeds the community’s level of
tolerance for such material.’
Prohibited based on community’s level of tolerance:
1. Sex with violence
2. Sex without violence, but degrading or dehumanizing
3. Sex with children
“Must determine whether the sexually explicit material when viewed in the
context of the whole work would be tolerated by the community as a
whole.”
LITTLE SISTERS BOOK AND ART EMPORIUM V C ANADA
(MINISTER OF JUSTICE )
REGULATION OF SEXUAL EXPRESSION AND FREEDOM OF EXPRESSION
SISTER CASE FOR BUTLER
Facts: Little Sisters specialized in gay and lesbian erotica, 80-90% from the US.
Customs inspectors determine appropriate tariff classifications. Trial Judge
found Customs officials had systemically targeted the store’s importations
and that the Customs legislation infringed Little Sisters freedom of expression
but was justified under s1.
163(1) “Every person commits an offence who makes, prints, publishes,
distributes, circulates or has in their possession for the purpose of
publication, distribution or circulation any obscene written matter,
picture, model, phonograph record or any other obscene thing.
163(8) “… any publication a dominant characteristic of which is the
undue exploitation of sex, or of sex and any one or more of the
following subjects, namely, crime, horror, cruelty, and violence, shall be
deemed to be obscene.”
Held: Appeal allowed in part. “Reverse-onus” provision cannot apply to put
on the importer the onus of disproving obscenity. An importer has a Charter
right to receive expressive material unless state can justify its denial.
MANNER LEGISLATION WAS IMPLEMENTED IN COULD NOT BE JUSTIFIED
If you are going to allow expression to be oppressed, should have an
open process to challenge what is being oppressed, rather than a closed
circular process (where customs officials have no training)
SCC found the bookstore had been targeted as importers of obscene
materials despite the absence of any evidence to suggest gay and
lesbian erotica is more likely to be obscene than heterosexual erotica
In applying the community standard of tolerance to each of these categories,
Butler concluded that…
1. The first category – the depiction of explicit sex coupled with violence –
will “almost always” constitute the undue exploitation of sex.
2. The second category – explicit sex that is “degrading or dehumanizing”
– may be undue “if the risk of harm is substantial”.
3. The third category – explicit sex that is not violent and is neither
degrading nor dehumanizing – is “generally tolerated in our society
and will not qualify as the undue exploitation of sex unless it employs
children in its production.”
This line of argument simply rejects the idea that Butler means what it says,
i.e., that the community standard of tolerance is based on the reasonable
apprehension of harm, not on morality. The arguments assume that any
appeal to a national community standard cannot be targeted on harm and
will inevitably be overwhelmed by majoritarian taste. This approach
presupposes that the arbiter (the broader community) is incapable of being
focussed on the task that it is required to address (harm). We have no
evidence that the courts are not able to apply the Butler test…
R V SHARPE
PRIVATE CHILD PORNOGRAPHY AND FREEDOM OF EXPRESSION
Facts: Private diary about abusing children found. Question of whether could
be convicted for materials he created on his own, which he didn’t distribute,
and no real children were involved. Specifically challenged 163.1(4) of the CC.
163.1(4) “Every person who possesses any child pornography is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not
more than 10 years and to a minimum punishment of imprisonment for
a term of one year; or (b) an offence punishable on summary conviction
and is liable to imprisonment for a term of not more than two years less
a day and to a minimum punishment of imprisonment for a term of six
months.
Held: S.163.1 was upheld, but McLachlin CJC read in two exceptions:
1. “written materials or visual representations, created and held by the
accused alone, exclusively for personal use”
2. “visual recordings, created by or depicting the accused, that do not
depict unlawful sexual activity and held by the accused exclusively for
private use.” - consensually created and not shown to anyone else [ex.
16yo girl sends a nude to her 17yo boyfriend - no offence unless sent
further]
Except for the two exceptions above, ban on child porn justified under s1
because of the risk of harm to children.
HARPER V CANADA (ATTORNEY GENE RAL)
FREEDOM OF EXPRESSION AND POLITICAL ADVERTS
Facts: Harper (before becoming PM in 2006) brings action alleging s350 and
others of the Canada Elections Act are of no force or effect for infringing
ss.2(b), 2(d), and 3 of the Charter. Main issue with the legislation had to do
with limitation of third party election advertising spending.
Held: Impugned legislation is constitutional, infringement is justified.
12
INFRINGEMENT AND OAKES ANALYSIS
Purpose: Promote electoral fairness by creating equality in political
discourse.
Expression: Infringement by limiting advertising expenses.
SECTION 1 ANALYSIS
Q1: What level of deference is owed by the court to a decision of parliament
based on contextual factors?
A: On balance, contextual factors favor a deferential approach to Parliament
in determining whether the third party advertising expense limits are
demonstrably justified in a free and democratic society.
1. Nature of Harm
a.
Not required to provide scientific proof, "logic, reason, and
some social science evidence" is enough
b. Harm in this case is nearly impossible to measure
scientifically, but several experts (including Lortie
Commission) established the likelihood of harm to electoral
fairness
2. Vulnerability of Group
a.
Protecting Canadian electorate and parties & candidates
3. Subjective Fears & Apprehension of Harm
a.
Surveys indicate 75% of Canadians supported limits to 3rd
party spending
4. Nature of the Infringed Activity [Political Expression]
a.
Lies at the core of free speech and warrants high degree of
protection
b. AG says while limits restrict rights of some, it enhances
participation of others
Q2: Pressing and substantial objective?
A: Electoral fairness.
Promote equality, protect integrity of regime, maintain confidence in
the process
Actual evidence of harm is not required – possible harm is enough
(reasoned approach)
Q3: Proportionality?
A: All three are met.
RC – Yes. Sufficient evidence establishes a rational connection between
third party ad expense limits & objectives of Act. Causal connection
between infringement & benefit sought limit allows for meaningful
participation in electoral process & encourages informed voting
MI – Uncertain, but deference owed. Meaningful participation for all
still allowed with proposed regime
D&S – D is limited (can still participate). S is high (ensure process not
overtaken by wealthy third parties)
SPENDING LIMITS ARE A JUSTIFIABLE INFRINGEMENT.
S2(C) PEACEFUL ASSEMBLY
S2(C) FREEDOM OF PEACEFUL ASSEMBLY
2. Everyone has the following fundamental freedoms:
c. freedom of peaceful assembly
Not many cases dealing with s 2(c)
Largely seen as being linked to s 2(b):
“Freedom of assembly is ‘speech in action’”
o
R v Behrens, [2001] O.J. No. 245 (Ont. C.J.), at para 36
However, there is also recognition of the inherent value of peaceful
assembly, separate and apart from freedom of speech considerations
(see Bérubé c Ville de Québec, 2019 QCCA 1764, at paras 43-46)
S. 2(C) rights include:
The right to participate in peaceful demonstrations, protests, parades,
meetings, picketing and other assemblies;
o
Fraser v Nova Scotia (Attorney General),(1986) 30 DLR (4th)
340 (NSSC)
The right to demonstrate on public streets;
o
Garbeau v Montréal, 2015 QCCS 5246
The right to camp in a public park as part of protest activities;
o
Batty v Toronto (City), [2011] OJ No 5158 (ONSC)
S. 2(C) does NOT protect riots and gatherings that seriously disturb the
peace:
R v Lecompte, [2000] JQ No 2452 (QCCA)
S. 2(C) does NOT protect a “right” to physically impede or block lawful
activates:
Guelph (City) v Soltys, [2009] OJ No 3369 (ONSC)
Interesting recent case:
Stewart v Toronto (Police Services Board), 2020 ONCA 255
o
A police perimeter, including baggage searches, around a
public park where demonstrators were gathering to protest
a meeting of the G20 was not a justifiable limit in the
absence of legal authority to impose and enforce these
conditions of entry.
S2(D) ASSOCIATION
S2(D) FREEDOM OF ASS OCIATI ON
2. Everyone has the following fundamental freedoms:
d. freedom of association.
PURPOSIVE SCOPE OF S2(D)
As is the case with other Charter rights, the jurisprudence establishes that s.
2(d) must be interpreted in a purposive and generous fashion, having regard
to “the larger objects of the Charter . . ., to the language chosen to articulate
the . . . freedom, to the historical origins of the concepts enshrined, and
where applicable, to the meaning and purpose of the other specific rights
and freedoms with which it is associated within the text of the Charter”: Big
M Drug Mart. In a phrase, in order to determine whether a restriction on the
right to associate violates s. 2(d) by offending its purpose, we must look at
the associational activity in question in its full context and history. Neither
the text of s. 2(d) nor general principles of Charter interpretation support a
narrow reading of freedom of association: Mounted Police Association of
Ontario v. Canada
Freedom of association is intended to recognize the profoundly social nature
of human endeavours and to protect:
The individual from state-enforced isolation in the pursuit of their ends
(Mounted Police Association of Ontario v. Canada, (MPAO)).
It protects the collective action of individuals in pursuit of their
common goals (Lavigne v. Ontario Public Service Employees Union).
It functions to protect individuals against more powerful entities, thus
empowering vulnerable groups and helping them work to right
imbalances in society (MPAO).
It allows the achievement of individual potential through interpersonal
relationships and collective action (Dunmore v. Ontario (Attorney
General).
MOUNTED POLI CE ASSOC IATION OF ONTARIO V CANADA
FREEDOM FOR RCMP TO UNIONIZE/CONDUCT COLLECTIVE BARGAINING
Facts: Non-unionized labour relations regime with three core components:
1) Advance their workplace concerns through the Staff Relations
Representative Program (“SRRP”)
2) Members’ concerns regarding pay and benefits are communicated to
management through the RCMP Pay Council process
3) The Mounted Police Members’ Legal Fund (“Legal Fund”), a not-forprofit corporation funded through membership dues, provides legal
assistance to RCMP members for employment-related issues
Is this regime cool under s2(d) of the Charter?
Held: Hell no!
ANALYSIS
Freedom of Association protects three classes of activities:
1. The “constitutive” right to join with others and form associations; The
state is prohibited from interfering with individuals meeting or forming
associations, but is permitted to interfere with the activities pursued by
an association
2. The “derivative” right to join with others in the pursuit of other
constitutional rights; This protects associations’ activities that
specifically relate to other constitutional freedoms but does not protect
other activities of the association
3. The “purposive” right to join with others to meet on more equal terms
the power and strength of other groups or entities; This protects
associations’ activities, including collective bargaining and striking, that
13
enable individuals who are vulnerable and ineffective to meet on more
equal terms the power and strength of those with whom their interests
interact or conflict
The Court concludes that the
OAKES ANALYSIS
1. Pressing and Substantial: “We conclude that the need for an
independent and objective police force constitutes a pressing and
substantial objective under s. 1 of the Charter.”
2. Proportionate
a.
Rational Connection
“The position of the Attorney General of Canada is that the creation
of a separate labour relations regime, free from collective bargaining
and unionism, is rationally connected to the goal of ensuring a
stable, reliable and neutral police force. In our view, the Attorney
General has not established that this is a reasonable inference.”
b. Minimal Impairment
Unless it is established that the RCMP is materially different from the
provincial police forces, it is clear that total exclusion from
meaningful collective bargaining cannot be minimally impairing.
c.
Salutary and Deleterious Effects
Court doesn’t talk about this? LOL
SASKATCHEWAN FEDERAT ION OF LABOUR V SASKATCHEWAN
SASK GOV LIMITS PUBLIC STRIKING AND UNION CERTIFICATION PROCESS
Facts: Gov of Sask introduces two statutes: PSESA and Trade Union
Amendment Act. PSESA limits public sectors ability to strike – can’t be
“essential”. TUAA increases level of written support and reduces period for
receiving written support from employees for union certification and changes
communications.
Held: The prohibition against strikes in the PSESA substantially interferes
with a meaningful process of collective bargaining and therefore violates s.
2(d) of the Charter. The infringement is not justified under s. 1. The
declaration of invalidity is suspended for one year. The appeal with respect
to The Trade Union Amendment Act, 2008 is dismissed – constitutional.
KEY QUOTE
“Where good faith negotiations break down, the ability to engage in the
collective withdrawal of services is a necessary component of the process
through which workers can continue to participate meaningfully in the
pursuit of their collective workplace goals. In this case, the suppression of
the right to strike amounts to a substantial interference with the right to a
meaningful process of collective bargaining.”
BERNARD V CANADA (AT TORNEY GENERAL )
COMPELLED ASSOCIATION / NOT A RIGHT TO ISOLATION
Facts: Public Service Labour Relations Board required employers required to
provide home contact info of bargaining unit members to unions that rep
them to satisfy representational duties. Rand Formula Employee objected.
Held: Reasonable, finding for PSLRB.
CHARTER ANALYSIS
The Court further considered the employee’s arguments that her rights
under sections 2(d) and 8 of the Charter had been infringed. The Court
held that these arguments had no merit. The disclosure of home
contact information to satisfy the union’s representational obligations
did not engage the employee’s freedom not to associate.
Furthermore, there was no reasonable expectation of privacy in the
information in these circumstances.
In Lavigne, the Court concluded that the payment by Rand Formula
employees of union dues for the purposes of collective bargaining did
not amount to unjustified “compelled association” under s. 2(d). Even
though s. 2(d) protected freedom from association as well as freedom
of association, the majority concluded that s. 2(d) does not provide
protection from all forms of involuntary association, and was not
intended to protect against association with others that is a necessary
and inevitable part of membership in a modern democratic
community. In other words, s. 2(d) is not a constitutional right to
isolation…
R V ADVANCE CUTTING AND CORING LTD .
COMPELLED ASSOCIATION / THE RIGHT TO NOT ASSOCIATE
Facts: Appellants charged with hiring employees who did not have the
required competency certificates to work on a construction project or with
working in the industry without the proper competency certificates. The
appellants asserted that workers could not obtain the proper competency
certificates without becoming members of one of the union groups listed in s.
28 of the Construction Act. Compelled association?
Held: Right to not associate exists, but it is not violated in this case. No
violation of s2(d).
ANALYSIS
In the Lavigne case, it was found that a right not to associate existed as
a necessary component of the guarantee of freedom of association
under s.2(d). The Rand formula violated s.2(d) but was saved under s.1
Forced association would not, in itself, offend s.2(d). Forced
association has to be accepted as one the ‘requirements of life’. The
plaintiff would have to demonstrate a threat to a liberty interest worthy
of protection.
Forced association may be legitimate when they respect democratic
values. An individual may be forced to associate so long as he or she is
not stripped of the right to disassociate from the ideology of the
group, and not deprived of his or her liberty interests guaranteed
under the Charter
In order to trigger the negative guarantee, ideological conformity or
breach of another liberty interest would have to be found in the fact
that unions, as other groups belonging to or participating in a
democratic society, sometimes engage in public debate, take positions
on issues concerning their members, or comment on broad social or
political questions.
o
Without any evidence, the assertion seems to rest on the
tenuous line that, although we do not have any evidence to
this effect, coercion on the individuals should be inferred
from “ideological trends” present in the labour movement.
S3 DEMOCRATIC RIGHTS
S4 LEGISLATIVE DURATION
S5 ANNUAL SITTINGS
DEMOCRATIC RIGHTS GE NERALLY
3 Every citizen of Canada has the right to vote in an election of members of
the House of Commons or of a legislative assembly and to be qualified for
membership therein.
4 (1) No House of Commons and no legislative assembly shall continue for
longer than five years from the date fixed for the return of the writs of a
general election of its members.
(2) In time of real or apprehended war, invasion or insurrection, a
House of Commons may be continued by Parliament and a legislative
assembly may be continued by the legislature beyond five years if
such continuation is not opposed by the votes of more than one-third
of the members of the House of Commons or the legislative assembly,
as the case may be.
5 There shall be a sitting of Parliament and of each legislature at least once
every twelve months.
PURPOSIVE SCOPE FROM SAUVE
At the first stage, which involves defining the right, we must follow this
Court’s consistent view that rights shall be defined broadly and liberally… A
broad and purposive interpretation of the right is particularly critical in the
case of the right to vote. The framers of the Charter signaled the special
importance of this right not only by its broad, untrammeled language, but by
exempting it from legislative override under s. 33’s notwithstanding clause. I
conclude that s. 3 must be construed as it reads, and its ambit should not be
limited by countervailing collective concerns, as the government appears to
14
argue. These concerns are for the government to raise under s. 1 in justifying
the limits it has imposed on the right.
S6 MOBILITY
MOBILITY RIGHTS GENERALY
FRANK V CANADA (ATTO RNEY GENERAL)
RESIDENCE REQUIREMENT FOR VOTING
Facts: Canada Elections Act: Citizens living abroad for more than five years
generally cannot vote (some exceptions). Frank and Duong bring s3 challenge
in hopes of returning to Canada if opportunity.
Held: S3 of the Charter was breached and was not justifiable under s.1.
ANALYSIS
Majority notes absence of residence requirement in s3. Residence
informs WHERE, not IF you vote.
“The vague and unsubstantiated electoral fairness objective that is
purportedly served by denying voting rights to non-resident citizens
simply because they have crossed an arbitrary five-year threshold does
not withstand scrutiny.”
“In particular, the AGC has failed to show that limiting the voting
rights of nonresident citizens is minimally impairing. There is little to
justify the choice of five years as a threshold or to show how it is
tailored to respond to a specific problem. It is also clear that the
measure improperly applies to many individuals with deep and abiding
connections to Canada and to Canadian laws, and that it does so in a
manner that is far broader than necessary to achieve the electoral
fairness objective advanced by the AGC. The disenfranchisement of
these citizens not only denies them a fundamental democratic right,
but also comes at the expense of their sense of self-worth and their
dignity. These deleterious effects far outweigh any speculative
benefits that the measure might bring about.”
“Accordingly, I would allow the appeal. The limit on the voting rights of
nonresidents violates s. 3 of the Charter and is not saved by s. 1.”
Court discusses provincial/federal jurisdictions at para 91 if it comes up.
FITZGERALD V ALBERTA
UPHELD BAN ON MINORS UNDER 18 FROM VOTING
Facts: 17 year old challenges constitutionality of age rule. Fucking boss.
Held: S3 infringed but justified. Also a moot case because by the time the
case reached the Court of Appeal the appellant was 18. Damn.
KEY QUOTE
“...Parliament is making a decision based on the experiential situation of all
citizens when they are young. It is not saying that the excluded class is
unworthy to vote, but regulating a modality of the universal franchise.”
SAUVÉ V CANADA (CHIE F ELECTORAL OFFICER)
PRISONERS RIGHT TO VOTE
Facts: Section 51(e) of the Canada Elections Act denies the right to vote to
“[e]very person who is imprisoned in a correctional institution serving a
sentence of two years or more.” The constitutionality of s. 51(e) was
challenged on the grounds that it contravenes ss. 3 and 15(1) of the Canadian
Charter of Rights and Freedoms and is not demonstrably justified under s. 1.
Held: Found that s51(e) unconstitutional under s3, not saved by s1.
MAJORITY AND DISSENT
These two opinions (majority and minority) represent two different
conceptions of parliamentary sovereignty.
The majority sees the Charter as a hard limit. The government must
justify itself if it wants to legislate in such a way. It must respect the
criteria of Article 1 and in case of doubt, the Charter takes precedence.
It is therefore the courts that have the last word.
The minority recognizes this limit, but qualifies it as flexible. And when
in doubt, the government is given the benefit of the doubt, the courts
will show restraint and the government will have the final say on the
decision to be made.
Government argument: Civic sanction and educational message. This
justification was not proven, the judges being uncertain that it had an
educational function. To this day, the disputed passage has still not been
repealed.
6 (1) Every citizen of Canada has the right to enter, remain in and leave
Canada.
(2) Every citizen of Canada and every person who has the status of a
permanent resident of Canada has the right
a. to move to and take up residence in any province; and
b. to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
a. any laws or practices of general application in force in a province
other than those that discriminate among persons primarily on the
basis of province of present or previous residence; and
b. any laws providing for reasonable residency requirements as a
qualification for the receipt of publicly provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or activity that
has as its object the amelioration in a province of conditions of individuals
in that province who are socially or economically disadvantaged if the rate
of employment in that province is below the rate of employment in
Canada.
TAYLOR V NEWFOUNDLAN D AND LABRADOR
COVID TRAVEL CASE / MOBILITY BETWEEN PROVINCES
Facts: Taylor could not travel to mourn for mother because of Covid travel
restrictions in Newfound.
Held: Mobility right infringed, “fleetingly”, right to liberty not engaged.
Infringement justified under s1.
ANALYSIS
The asserted right in question is not the right to earn a livelihood, or
take up residence in Newfoundland and Labrador. Ms. Taylor did not
seek to travel to this province for either of these reasons. Rather, her
request was to attend her mother’s funeral. The right thus claimed
might be characterized as a simple right of mobility, (a right
simpliciter) to travel within Canada.
It follows that Ms. Taylor’s s. 6(1) Charter right to mobility was
infringed when she was denied entry to this province on 8 May 2020,
in accordance with the travel restriction. The infringement was fleeting,
as eight days later Ms. Taylor was granted an exemption, permitting her
to travel.
OAKES TEST
I accept the Applicant’s argument that the pandemic is not a magic
wand which can be waved to make constitutional rights disappear and
that the decision of the CMOH is not immunized from review.
o
However, it is not an abdication of the court’s responsibility
to afford the CMOH an appropriate measure of deference in
recognition of (1) the expertise of her office and (2) the
sudden emergence of COVID-19 as a novel and deadly
disease. It is also not an abdication of responsibility to give
due recognition to the fact that the CMOH, and those in
support of that office, face a formidable challenge under
difficult circumstances.
While restrictions on personal travel may cause mental anguish to
some, and certainly did so in the case of Ms. Taylor, the collective
benefit to the population as a whole must prevail. COVID-19 is a
virulent and potentially fatal disease. In the circumstances of this case
Ms. Taylor’s Charter right to mobility must give way to the common
good.
In conclusion, I am satisfied based on the evidence presented that the
travel restriction represents a reasonable limit on Ms. Taylor’s right to
mobility, as demonstrably justified in a free and democratic society.
15
S7 LIFE, LIBERTY, SECURITY
OF THE PERSON AND PFJ
LIFE, LIBERTY, SECUR ITY OF T HE PERSON AN D THE PRINCIP LES
OF FUNDAMENTAL JUSTI CE
7. Everyone has the right to life, liberty and security of the person and the
right not to be deprived thereof except in accordance with the principles of
fundamental justice.
-
-
Life: “[T]he right to life is engaged where the law or state action
imposes death or an increased risk of death on a person, either directly
or indirectly.” Carter at para 62
Liberty: “Liberty protects ‘the right to make fundamental personal
choices free from state interference’...” Carter at para 64
Security of the Person: “Security of the person encompasses ‘a notion
of personal autonomy involving . . . control over one’s bodily integrity
free from state interference’ ... and it is engaged by state interference
with an individual’s physical or psychological integrity, including any
state action that causes physical or serious psychological suffering...”
Carter at para 64.
PRINCIPLES OF FUNDAMENTAL JUSTICE
The principles of fundamental justice are not limited to procedural matters
but also include substantive principles of fundamental justice.
S7 TEST FROM RE BC MOTOR VEHICLES ACT
1.
-
-
2.
-
-
Is there an infringement on one of the 3 protected interests? Is one of
the 3 interests engaged?
3 interests:
o
Life: free from direct or indirect risk or threat to one’s life. A
person can waive their right to life [Rodriguez; Carter]
o
Liberty: protects autonomy and personal choice, to make
personal choices free from state interference. Includes freedom
from physical restraint and personal autonomy [Godbout]
o
Security of the Person: protects bodily integrity (physical and
psychological) [Morgentaler, Rodriguez, Carter]
Must be a causal connection between state action and deprivation
o
Onus on the claimant to prove the impugned law infringes on
their right/makes something more dangerous
o
Does not need to be reasonably foreseeable, just has to be a real
link
Typically, this analysis is very straight forward
If there has been a deprivation, was it in accordance with the
principles of fundamental justice? In other words, it cannot be
arbitrary, overly broad, or grossly disproportionate.
A POFJ must be a legal principle that is identified with some precision
or manageable standard that has general acceptance among
reasonable people as vital to the societal notion of justice or
fundamental to the legal system.
Test for violation of Principles of Fundamental Justice: only need to
satisfy 1/3. A law that infringes on LLSP must not be manifestly unfair:
First, identify the objective of the legislation. Then look at the following
in comparison to it:
o
Arbitrariness: An arbitrary law is one that is not capable of
fulfilling its objectives/no rational connection between the effect
and the object of the law [Morgentaler; PHS]
o
Overbreadth: Does the law go too far by denying the rights of
some individuals in a way that bears no relation to their object?
Cannot use means more restrictive than necessary to achieve the
objective. Some deference is allowed here (like section 1).
[Bedford]
o
Gross Disproportionality: Compare the law’s purpose with its
negative effects and ask if this impact is completely out of sync.
The number of people affected is irrelevant- focus on the impact
of the deprivation on the person. [PHS; Bedford]
3.
If both of the previous steps have been met, the applicant’s s 7 right
has been violated. The government now may attempt to justify the
violation under section 1.
PRINCIPLES OF FUNDAM ENTAL JUSTICE
There are 3 characteristics essential to a principle of fundamental justice:
1. Must be a legal principle (basic tenet of the legal system);
2. Must be significant societal consensus that the principle is
fundamental to the way in which the legal system ought to fairly
operate [a reasonable and informed person]; and
3. Must be sufficiently precise so as to yield a manageable standard
against which to measure deprivations of LLSP.
POFJ can regard substantial or procedural law.
Substantive Law: law that fixes duties, establishes rights &
responsibilities among and for persons.
Procedural Law: prescribes the manner in which such rights and
responsibilities may be exercised and enforced in a court of law.
Procedural principles are what is commonly known as “natural justice,”
an administrative law doctrine, and relates to the process/manner
one’s rights can be affected.
Why does the Court focus on the “basic tenants of the legal system”?
The SCC says this interpretation of s7 is justified to respect “the
inherent domain of the judiciary as guardian of the justice system”.
The SCC notes that it is not the role of the courts to comment on
general public policy matters.
By focusing on the BTLS, courts can provide meaningful content to s7 all
the while avoiding adjudication on a wide range of policy matters.
QUICK QUOTE DEFINING PFJ
Principles of fundamental justice as legal principles that are capable of being
identified with some precision and are fundamental in that they have general
acceptance among reasonable people: Rodriguez, Chaoulli.
RE BC MOTOR VEHICLE ACT
BASIC STRUCTURE OF A S7 CLAIM / PRINCIPLES OF FUNDAMENTAL JUSTICE
Facts: BC’s Motor Vehicles Act’s S. 94 (1) provided that whoever drives a
motor vehicle while prohibited or with a suspended license, commits an
offence and is liable to a fine and to imprisonment on first conviction. S. 94 (2)
provided that the offence created by S .94 (1) created an absolute liability
offence where guilt is established by proof of driving, regardless of whether
defendant knew of the prohibition or suspension. Where imprisonment is a
consequence, can absolute liability be the method?
Held: S94(2) of no force/effect, inconsistent with s7 of the Charter. Where
imprisonment is a consequence, absolute liability cannot be the method.
ANALYSIS
Absolute liability per se does not offend Section 7 of the Canadian
Charter of Rights and Freedoms but when involving mandatory
imprisonment, there is a violation to S. 7 right to liberty and the right
not to be deprived thereof.
What are POFJ?
Can be both substantive and procedural
o
Substantive Law: Law that fixes duties, establishes rights and
responsibilities among and for persons
o
Procedural Law: Law that merely prescribes the way such rights
and responsibilities may be exercised and enforced in a court of
law. Procedural principles are what is commonly known as
“natural justice”, an administrative law doctrine, and relates to
the process/manner one’s rights can be affected.
POFJ are not a protected interest, but rather a qualifier of the right not
to be deprived of LLSP.
POFJ are the basic tenets of the legal system: Sections 8-14 are
examples of this (e.g., right to counsel) – but others encompassed by s.
7.
Founded on belief in dignity of human persons/rule of law – nobody is
above the law.
Here, s. 1 is not enough to justify the breach (risk of imprisonment of few
innocents is not reasonable when measured against opening the defense of
due diligence).
“Section 1 may, for reasons of administrative expediency, successfully
come to the rescue of an otherwise violation of s. 7, but only in cases
16
arising out of exceptional conditions, such as natural disasters, the
outbreak of war, epidemics, and the like.”
-
RELATIONSHIP BETWEEN S7 AND S1 : BEDFORD
-
-
-
-
“Section 7 and s. 1 ask different questions. The question under s. 7 is
whether the law’s negative effect on life, liberty, or security of the
person is in accordance with the principles of fundamental justice. With
respect to the principles of arbitrariness, overbreadth, and gross
disproportionality, the specific questions are whether the law’s
purpose, taken at face value, is connected to its effects and whether
the negative effect is grossly disproportionate to the law’s purpose.”
“Under s. 1, the question is different — whether the negative impact of
a law on the rights of individuals is proportionate to the pressing and
substantial goal of the law in furthering the public interest. The
question of justification on the basis of an overarching public goal is at
the heart of s. 1, but it plays no part in the s. 7 analysis, which is
concerned with the narrower question of whether the impugned law
infringes individual rights.”
“As a consequence of the different questions they address, s. 7 and s.
1 work in different ways.”
“… s. 7, the claimant bears the burden of establishing that the law
deprives her of life, liberty or security of the person, in a manner that
is not connected to the law’s object or in a manner that is grossly
disproportionate to the law’s object. The inquiry into the purpose of
the law focuses on the nature of the object, not on its efficacy. The
inquiry into the impact on life, liberty or security of the person is not
quantitative — for example, how many people are negatively impacted
— but qualitative. An arbitrary, overbroad, or grossly disproportionate
impact on one person suffices to establish a breach of s. 7. To require s.
7 claimants to establish the efficacy of the law versus its deleterious
consequences on members of society as a whole, would impose the
government’s s. 1 burden on claimants under s. 7. That cannot be
right."
“It has been said that a law that violates s. 7 is unlikely to be justified
under s. 1 of the Charter... The significance of the fundamental rights
protected by s. 7 supports this observation. Nevertheless, the
jurisprudence has also recognized that there may be some cases where
s. 1 has a role to play... Depending on the importance of the legislative
goal and the nature of the s. 7 infringement in a particular case, the
possibility that the government could establish that a s. 7 violation is
justified under s. 1 of the Charter cannot be discounted."
CANADA V FEDERATION OF LA W SOCIETIES
LIBERTY AND PFJ
LAWYERS LIABLE TO IMPRISONMENT
Facts: In a decision being lauded by the bar, the Supreme Court of Canada
held that provisions of the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act, SC 2000, c 17 [PCTFA] violate sections 7 and 8 of the
Charter in Canada (Attorney General) v Federation of Law Societies of
Canada, 2015 SCC 7 [FLSC].
Held:
ANALYSIS
LLSP threshold crossed?
o
The liberty interests of lawyers are infringed because lawyers are
liable to imprisonment if they do not comply and allow FINTRAC
access to client files
Violation of PFJ?
o
Held. I should be recognized as a principle of fundamental justice
that the state cannot impose duties on lawyers that undermine
their duty of commitment to their clients’ causes… The lawyer’s
duty of commitment to the client’s cause meets this test.
o
Ask: How did the court come to this conclusion?
First, the lawyer’s duty to a client is a normative legal principle and a
basic tenet of our legal system (BTLS). It has been recognized as a
distinct element of a lawyer’s broader common law duty of loyalty.
Second, jurisprudence demonstrates that the principle is sufficiently
precise to provide a workable standard. The principle does not
countenance a lawyer’s involvement in, or facilitation of, illegal
activities and it is consistent with a lawyer taking appropriate steps to
ensure that their services are not used for improper ends.
-
Third, there is overwhelming evidence of a strong and wide-spread
consensus concerning the fundamental importance in democratic
states of protection against state interference with the lawyer’s
commitment to their client’s cause. The duty is fundamental to the
solicitor-client relationship and how the state and the citizen interact in
legal matters. The lawyer’s duty of commitment to the client’s cause is
essential to maintaining confidence in the integrity of the
administration of justice.
A reasonable and informed person would perceive that these
provisions are inconsistent with the lawyer’s duty of commitment to
the client’s cause. The scheme taken as a whole limits the liberty of
lawyers in a manner that is not in accordance with the principle of
fundamental justice relating to the lawyer’s duty of committed
representation.
SURESH V CANADA
LIFE, LIBERTY & SECURITY OF THE PERSON
DEPORTATION TO TORTURE & S7 / PFJ ANALYSIS PROCEDURAL LAW
Facts: Suresh comes to Canada fearing persecution by the Sri Lankan gov.
Suresh supports Tamil Tigers (terrorist org) and fundraised for them. Solicitor
General deems Suresh security risk and seeks to deport. Suresh counter claims
a return to Sri Lanka will result in torture.
Section 53 of the Immigration Act permits deportation “to a country
where the person’s life or freedom would be threatened”.
Held: The impugned legislation is constitutional. Appellant entitled to a new
deportation hearing.
SECTION 7 ANALYSIS
KEY QUOTE FOR PFJ ANALYSIS
The principles of fundamental justice are to be found in “the basic tenets of
our legal system”: Burns. “They do not lie in the realm of general public
policy but in the inherent domain of the judiciary as guardian of the justice
system”: Re B.C. Motor Vehicle Act. The relevant principles of fundamental
justice are determined by a contextual approach that “takes into account the
nature of the decision to be made”: Kindler. The approach is essentially one
of balancing. As we said in Burns, “[i]t is inherent in the . . . balancing
process that the outcome may well vary from case to case depending on
the mix of contextual factors put into the balance”. Deportation to torture,
for example, requires us to consider a variety of factors, including the
circumstances or conditions of the potential deportee, the danger that the
deportee presents to Canadians or the country’s security, and the threat of
terrorism to Canada. In contexts in which the most significant
considerations are general ones, it is likely that the balance will be struck the
same way in most cases. It would be impossible to say in advance, however,
that the balance will necessarily be struck the same way in every case.
STEP 1: IS THERE A VIOLATION OF LLSP?
Deportation to torture may deprive refugees of liberty, security and
perhaps life.
Section 7 IS engaged “if there is a sufficient causal connection between
our government’s participation and the deprivation ultimately
effected”.
STEP 2: VIOLATION OF PFJ?
What sources did the Court consider?
o
In exercising the discretion conferred by s. 53(1)(b) of the
Immigration Act, the Minister must conform to the
principles of fundamental justice under s 7.
o
Insofar as the Act leaves open the possibility of deportation
to torture, the Minister should generally decline to deport
refugees where on the evidence there is a substantial risk of
torture.
o
Section 53(1)(b) does not violate s. 7 of the Charter.
FURTHER EXPLORATION
Life Interest: Where a law or state action imposes death or increased
risk of death in a person either directly or indirectly: Suresh, Canada
Liberty Interest: The right to make fundamental personal choices free
from state interference. Two aspects:
o
Protects a sphere of personal autonomy involving
“inherently private choices” that go to the “core of what it
means to enjoy individual dignity”
o
Protection of persons in a physical sense and is engaged
when there is physical restraint.
17
-
Security of the Person: Broad interpretation and can include a physical
and psychological aspect.
B (C) V CHILDREN ’S AID SOC IETY OF METROPOLITAN TORON TO
LIBERTY
INTEREST OF THE CHILD
Facts: Jehovah’s Witnesses blood transfusion to child – JWs refuse blood
transfusion for critically ill child. Children’s Aid Society obtained warrant
under Child Welfare Act to consent to transfusion. Parents challenge.
Freedom of religion and s7 both engaged.
Held: S7 breached but justified, no PFJ violation; children must be protected.
SECTION 7 ANALYSIS
STEP 1: IS THERE A VIOLATION OF LLSP?
In a free and democratic society, parents have liberty to make decisions
for their children, including medical decisions: there is a liberty
component under s. 7 here.
Minimal intervention by state is the norm in medical realm.
Assumption: parents have a fundamental interest in child (so state
shouldn’t interfere).
STEP 2: VIOLATION OF PFJ?
Because s. 7 was violated, in doing so, the law must comply with the
Charter.
Parents have liberty to make decisions with their children but, public
policy limiting parental liberty with their child – societal interest in
protection.
Public policy can intervene where parental conduct falls below socially
accepted threshold.
State intervention must be in accordance with fundamental justice
principles.
Here, no violation of fundamental justice – parents able to express concerns.
No need to go to Step 3 (s. 1 analysis) because POFJ not violated.
R V MORGENTALER
SECURITY OF THE PERSON
BODILY INTEGRETY OF WOMEN
Facts: Challenge to CC prohibition under s. 251. Abortions had to be
performed in hospital, had to have a TAC indicate it was medically required –
every hospital had its own definition of what it means to have your health
threatened, needed 4 doctors in total (had to be in a community where there
are 4 doctors), process takes too long.
Dr. Morgentaler & 2 colleagues (a private abortion clinic in Toronto)
violated the CCC provision.
Provision made it illegal to get abortion unless you got committee (TACTherapeutic abortion committee) approval to confirm it was medically
required.
They were charged & argued the provision violated s. 7.
Held: Procedural requirements of the committee process violate LLSP/PFJ,
not saved under s1.
SECTION 7 ANALYSIS
STEP 1: IS THERE A VIOLATION OF LLSP?
Interference with body here = serious state-imposed psychological
stress (in criminal law context, this constitutes a breach of LLSP (leaves
open whether stress=breach outside crim).
Interference by Criminal Code with her choice – committee’s criteria
totally unrelated to her own priorities and experience & indecision
throughout process causes emotional stress.
Profound violation of women’s security of the person.
Find “glaring” breaches of security of person – delays + psychological
integrity + stress.
STEP 2: VIOLATION OF PFJ?
Procedural fairness interfered with here; not fair to subject woman to
committee scrutiny; number of hospitals quite limited & requirements
restrictive
Said abortions would be allowed if baby would endanger “life or
health” of pregnant woman; but committees each had different
conceptions – including, for some, that married women could not get
abortions
Women should know what standard of health will be applied by a
committee
-
Lack of a clear legal standard is a procedural flaw (here, no standard &
doctor discretion)
One of the basic tenets of our system of criminal justice is that when
Parliament creates a defense to a criminal charge, the defense should
not be illusory or so difficult to attain as to be practically illusory
Here, ability of women is illusory – many areas woman won’t have
access to an abortion, or requirements might be too stringent – woman
unable to gain benefit of defense to CCC
STEP 3: SAVED BY S1?
Lol no shot. Process unfair, and committees must be struck down
(impaired process more than necessary to protect health of women – in
fact, provisions defeat that objective)
RODRIGUEZ V BRITISH COLUM BIA (ATTORNEY G ENERAL)
SECURITY OF THE PERSON / LIBERTY
BODILY INTEGRITY OF ASSISTED SUICIDE
PRECURSOR TO CARTER <<< BETTER CASE TO CITE
Facts: Section 241(b) CC criminalized aiding or abetting suicide (but not
suicide or attempted). Rodriguez had ALS and wanted to be able receive
assistance when she decided to commit suicide if she was no longer able to
physically do so herself. She sought a declaration that she was entitled to
assistance to suicide if condition was unbearable. Rodriguez challenges the
CC, arguing it deprived her of both liberty & security of the person:
Right to live her remaining life with inherent dignity of a human person
Right to control what happens to her body while she is living
Right to be free from governmental interference in making fundamental
personal decisions concerning terminal stages of her life
Held: Deprivation of security of person BUT in accordance with fundamental
justice (so no s. 7 violation).
SECTION 7 ANALYSIS
Says the right to life is to protect the vulnerable & cannot be used to
deprive life
POFJ: legal principles upon which there is some societal consensus that
they are vital or fundamental to our societal notion of justice and not so
broad as to be no more than vague generalizations
o
More than common law rule (e.g., more than rule that
allows doctor to withdraw life support)
o
Must be capable of being identified with some precision
o
Respect for dignity not a POFJ – would equate security with
POFJ which is redundant
o
Emphasizes that the law protects the vulnerable/ keep
sanctity of life protected by s. 7 in mind – the state interest
means no violation of POFJ
o
Human life has a deep intrinsic value; sanctity of life
Regulation not arbitrary/not unfair; protects vulnerable and POFJ must be
“fundamental”
DISSENT
Violation of security of person (the right to make decisions concerning her
own body, which affect only her body) contrary to POFJ (arbitrary distinction
between suicide/assisted suicide).
Not saved under s. 1: Objective could instead be achieved by ensuring
fully informed consent.
CANADA V PHSA COMMUN ITY SERVICES SOCIETY
SECURITY OF THE PERSON
BODILY INTEGRITY AND SAFE INJECTION SITES
Facts: Case involved downtown eastside Vancouver – area with
social/economic/addiction issues. Since 2003, Insite has provided medical
services to intravenous drug users in the downtown eastside.
Safe clinic where people could inject drugs safely; also provided
counseling/other functions
Insite was internationally heralded as a good way to approach drug
addiction
Reduced spread of infectious diseases like HIV and hep C; also reduced
overdoses
2008, the fed gov’t failed to extend Insite’s exemption from operation of
criminal laws in the CDSA. Insite argues the sections of CDSA itself violates
LLSP & refusal to grant exemption violates LLSP.
Held: Refusing to extend Insite’s exemption is a violation of s. 7 & cannot be
justified under s. 1
18
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Ordered Minister to grant Insite an extended exemption
Minister ordered to make a decision that is not arbitrary and not grossly
disproportionate
SECTION 7 ANALYSIS
STEP 1: IS THERE A VIOLATION OF LLSP?
Where a law creates a risk to health by preventing access to healthcare,
a deprivation of the right to security of the person is made out (LLSP
violated).
Any decisions made by the minister must conform with Charter – has
discretion but must meet s. 7 demands; the discretion can be exercised
(as it was here) unconstitutionally.
STEP 2: VIOLATION OF PFJ?
Overbroad? (Does not consider, because arbitrariness/gross
disproportionality so clear)
Arbitrary: Two-step consideration - Object was public safety, yet Insite
actually helped public safety, so choice is arbitrary – law arbitrarily
closed the best way to address the problem
Gross disproportionality: Insite saves lives/benefits proven, now totally
denied operation & benefits denied. Clearly disproportionate because
to deny having these clinics altogether is a grossly disproportionate
response
Decision to deny benefit was thus not in accordance with FJ
STEPS 3: SAVED BY S1?
Cannot be saved under s 1
Says the law is constitutional but being applied unconstitutionally, so
it’s a s.24 remedy
CANADA (ATTORNEY GEN ERAL) V BEDFORD
MAIN CASE OF PFJ LOOK HERE
SECURITY OF THE PERSON
BODILY INTEGRITY OF SEX WORKERS
Facts: Prostitution itself not illegal, but it is to (1) keep a bawdy-house, (2) live
on the avails of prostitution or (3) communicate in public related to
prostitution. Applicants are current or former prostitutes and challenged 3 CC
provisions as contrary to s. 7. They argued that these provisions increased risk
to prostitutes and prohibited them from taking steps to that would increase
their safety (e.g., hiring security guards/screening clients)
(Canadian government argues risks could be avoided by not engaging in
prostitution – choice).
Held: Provisions struck down; declaration of invalidity suspended 1 year.
SECTION 7 ANALYSIS
STEP 1: IS THERE A VIOLATION OF LLSP?
They do not merely impose conditions on prostitution, they are
dangerous conditions
Prevents people engaged in risky but legal activity from taking steps
to protect themselves Each of the 3 provisions puts security of person
under threat:
i.
bawdy-houses: TJ concluded it is safer to use fixed indoor
location
ii.
living on avails has a broad reach; prevents prostitute from
hiring safety people
iii.
communication in public place: this is essential for
prostitute’s safety
Also, claimant must show sufficient causal connection between the
state caused effect and the prejudice suffered by the claimant
o
Government argues it is prostitute’s choice (not law’s fault)
that causes the effect BUT, many prostitutes have no choice
(it is constrained; a marginalized population)
o
A constrained choice, so question is if law makes it more
dangerous – it does
o
Does not need to be sole cause – can draw reasonable
inference, on balance of probabilities
STEP 2: VIOLATION OF PFJ?
Arbitrary: Absence of connection between infringement of rights and
what law seeks to achieve or object is fundamentally flawed
Also, overbroad (which is where some rational connection, but
overreaches in its effects in some ways) – this is related to arbitrariness
Gross disproportionality: applies in extreme cases of draconian laws,
even on one person
o
Here, (i) objective of public health and safety too extreme –
grossly disproportionate impact of banning bawdy-houses;
(ii) living on avails overbroad as it encompasses too many
relationships that do not hurt the prostitute and it is hard to
distinguish between exploitative/non-exploitative; (iii)
communicating in public grossly disproportionate to
removing nuisance
STEPS 3: SAVED BY S1?
Not minimally impairing as it captures too many relationships
CARTER V CANADA
VERY RECENT CASE ECHOES PFJ IN BEDFORD
BODILY INTEGRITY AND ASSISTED SUICIDE
Facts: Section 241(b) of the Criminal Code says that everyone who aids or
abets a person in committing suicide commits an indictable offence, and s.
14 says that no person may consent to death being inflicted on them.
After T was diagnosed with a fatal neurodegenerative disease in 2009,
she challenged the constitutionality of the Criminal Code provisions
prohibiting assistance in dying.
She was joined in her claim by C and J, who had assisted C’s mother in
achieving her goal of dying with dignity by taking her to Switzerland to
use the services of an assisted suicide clinic; a physician who would be
willing to participate in physician-assisted dying if it were no longer
prohibited; and the British Columbia Civil Liberties Association.
Held: CC infringes s7; declaration of invalidity but suspended 1 year.
SECTION 7 ANALYSIS
Choice between pain and suffering, or dangerously taking your own life –
choice is cruel. Provision had led people to take their lives early
STEP 1: IS THERE A VIOLATION OF LLSP?
No absolute prohibition on right to life, citizens can waive right,
otherwise a duty to live
S. 7 respects human life, but also respects life/liberty/security of person
Life engaged when there is a risk of death, otherwise autonomy/quality
of life are matters of liberty and security of the person – while life
threatened, autonomy must be respected
Security of the person includes control over one’s bodily integrity, free
from state interference
STEP 2: VIOLATION OF PFJ?
It is overbroad; law’s purpose described as protecting the vulnerable,
but people knew what they were doing & their rights being taken away;
not a matter of protecting the vulnerable – they had clear reasons etc.;
people outside the vulnerable being prevented
Overbroad because not every person is vulnerable & prohibition covers
too much
Analogous to Bedford
STEPS 3: SAVED BY S1?
Pressing and substantial objective? Yes
Proportionality? Law not proportionate: rational connection, but no
minimal impairment.
Could be less drastic than absolute prohibition; proper regime could
prevent abuse.
(While deference is important, here it is an important social issue, and
it is not a complex regulatory regime; limits on how much deference is
owed).
GOSSELIN V QUEBEC (A TTORN EY GENERAL)
SECURITY OF THE PERSON
PROTECTION FROM POVERTY? POTENTIAL NOVEL APPLICATION
Facts: Under Quebec social assistance scheme, found in the Social Aid Act,
and accompanying regulations between 1984 and 1989, the base amount of
money payable to claimants under the age of 30 was 1/3 of that payable to
those 30 or older. The age distinction was removed in 1989. Gosselin brought
a class action on behalf of everyone who had been under 30 at the time
before 1989 who fell through the cracks.
Held: Not a s7 violation.
SECTION 7 ANALYSIS
STEP 1: IS THERE A VIOLATION OF LLSP?
Court asks whether the present circumstances warrant a novel application s7
on the basis of a positive state obligation to guarantee adequate living
standards.
Majority concludes no.
19
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Leaves open the possibility that a positive obligation to sustain LLSP
may be made out in special circumstances. These circumstances do no
rise to that level.
o
The impugned program contained compensatory “workfare”
provisions and the evidence of actual hardship is wanted.
o
The frail platform provided by the facts of this case cannot
support the weight of a positive state obligation of citizen
support.
S7 AND POSITIVE RIGHTS: MAYBE ONE DAY… PER GOSSELIN
One day s. 7 may be interpreted to include positive obligations. To evoke
Lord Sankey’s celebrated phrase in Edwards v. Attorney-General for Canada,
[1930] A.C. 124 (P.C.), at p. 136, the Canadian Charter must be viewed as “a
living tree capable of growth and expansion within its natural limits”:
see Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158,
at p. 180, per McLachlin J. It would be a mistake to regard s. 7 as frozen, or its
content as having been exhaustively defined in previous cases. In this
connection, LeBel J.’s words in Blencoe, supra, at para. 188 are apposite:
We must remember though that s. 7 expresses some of the basic values of
the Charter. It is certainly true that we must avoid collapsing the contents of
the Charter and perhaps of Canadian law into a flexible and complex
provision like s. 7. But its importance is such for the definition of substantive
and procedural guarantees in Canadian law that it would be dangerous to
freeze the development of this part of the law. The full impact of s. 7 will
remain difficult to foresee and assess for a long while yet. Our Court should
be alive to the need to safeguard a degree of flexibility in the interpretation
and evolution of s. 7 of the Charter.
CHAOULLI V QUEBEC (A TTORN EY GENERAL)
SECURITY OF THE PERSON
PROHIBITION ON PRIVATE HEALTHCARE
Facts: Dr. Chaoulli attempted to get a license to offer services as an
independent private hospital. He brought a claim against Quebec and the
Charter, striking down Quebec legislation, which prohibited private health
care insurance. He argued a s7 violation because it threatened some patients’
rights to life and security of the person because the Quebec healthcare
system wasn’t delivering.
Held: 4:3 the law is unconstitutional (violates s. 7 and cannot be upheld by s.
1).
SECTION 7 ANALYSIS
The key worry is that long waiting times can lead to death and
physical/psychological stress.
Decided using the Quebec Charter – this is indeterminate as precedent.
Delay in medical treatment = violation of security of the person
(Morgentaler).
Oakes: Minimal Impairment – government failed to show evidence that
private health care would undermine the public system – deference
was not justified
o
Prohibition goes further than necessary to protect the
public system
o
Other provinces have a mix of private and public health care
While the government does not need to provide health care (no
positive obligations), the scheme must comply with the Charter
o
The act in questions creates a monopoly for public health
care
Delays in treatment adversely affect the security of a person
o
Physical and psychological consequences of long waiting
times
o
Access to waiting list is not access to healthcare
Prohibiting Canadians access to health care when the government is
failing to provide health care in a reasonable manner, increasing risk
of complications and death, infringes s. 7.
PFJ: Court finds that the impugned legislation was arbitrary and therefor did
not conform to PFJ.
R V DB
LIBERTY AND A NEW PRINCIPLE OF FUNDAMENTAL JUSTICE
YOUTH’S PRESUMED MORAL BLAMEWORTHINESS SAME AS ADULTS
Presumption of diminished moral blameworthiness for young persons PFJ.
Facts: D.B was heading out to the mall with his friends when a fight broke out
with R. He punched R to the ground, knocking him unconscious, before
panicking and fleeing. By the time the paramedics arrived, R had no vital
signs and was taken to the hospital. B learned of his death later that night
when he received a call informing him of it. He was arrested the following
morning at his friends house. He pleaded guilty to manslaughter.
B tried to apply for a youth sentence but was opposed by the crown, B
challenged the constitutionality of the presumptive offence regime
arguing that it imposed an impermissible reverse onus on the accused.
The trial judge agreed and issued a declaration of unconstitutionality
against the provisions. The Court of Appeal for Ontario dismissed the
crown's appeal.
Held: The impugned presumptive offense provisions violated s7 and were
therefor unconstitutional.
SECTION 7 AND PFJ ANALYSIS
Court uses the occasion of this case to recognize a new PFJ, namely: The
presumption of diminished moral blameworthiness for youth.
Ultimately, Abella J held that the presumption of diminished moral
blameworthiness for young persons was principle of fundamental
justice, flowing from their heightened vulnerability, lower maturity,
and reduced capacity for judgement. And held that the principle would
require youth to be subject to youth sentences, unless the crown could
discharge it's burden of establishing the presumption had been
rebutted.
Abella J then also turned to the publication ban provisions, holding that
the protection of the young person's privacy was a manifestation of the
presumption of diminished moral blameworthiness, because it aided
the rehabilitation of youth by preventing stigmatization, and shielded
the youth from greater psychological and social stress. Holding that the
lifting of the ban rendered the sentence significantly more severe, she
held that putting the onus on the youth to justify why they remained
entitled to a publication ban was also a violation of section 7.
NEW BRUNSWICK (MINIS TER OF HEALTH AND CO MMUNITY
SERVICES) V G(J)
SECURITY OF THE PERSON
MENTAL STRESS
Facts: An indigent mother undertook a custody application for her three
children. The application involved an oral hearing. The government would not
pay for a legal aid lawyer to represent her at the hearing.
Held:
SECTION 7 ANALYSIS
Ordinary stresses are not enough, requires “serious and profound effect on a
person’s psychological integrity” to rise to a s7 violation.
The effect of taking away the children involved serious state imposed
psychological stress, an interest which had the potential to violate
security of the person.
The principles of fundamental justice require a fair procedure and
hearing before an impartial arbiter; to be fair, the parent must have the
opportunity to meaningfully participate.
Three factors support right to counsel in this case:
(i) the seriousness of the interest at stake,
(ii) the complexity of the proceedings, and
(iii) the capacities of the parent in relation to the complexity of the
proceedings.
Right to a fair hearing will not always require representation by counsel
– “whether it is necessary for the parent to be represented by counsel
is directly proportional to the seriousness and complexity of the
proceedings, and inversely proportional to the capacities of the
parent.”
“I would like to make it clear that the right to a fair hearing will not
always require an individual to be represented by counsel when a
decision is made affecting that individual's right to life, liberty, or
security of the person. In particular, a parent need not always be
represented by counsel in order to ensure a fair custody hearing. The
seriousness and complexity of a hearing and the capacities of the
20
parent will vary from case to case. Whether it is necessary for the
parent to be represented by counsel is directly proportional to the
seriousness and complexity of the proceedings, and inversely
proportional to the capacities of the parent.”
EWERT V CANADA
ANALYSIS OF PFJ
ARBITRARINESS AND OVERBREADTH
Facts: Correctional Service of Canada (CSC) runs federal prisons. Its goal is to
help rehabilitate inmates, while protecting other inmates, staff, and society
as a whole. To do this, it uses certain psychological and statistical tools to
make decisions about inmates, like whether s/he is likely to reoffend or what
kind of supports s/he should get.
Under the Corrections and Conditional Release Act, CSC has to “take all
reasonable steps to ensure that any information about an offender that
it uses is as accurate, up to date and complete as possible.” The Act also
says CSC must make sure that its policies and programs are suitable for
Indigenous offenders and take their specific needs and circumstances
into account.
Mr. Ewert is a federal inmate and identifies as Métis. He was serving
two simultaneous life sentences for murder and attempted murder.
Because certain tools used to make decisions about him were created
based mostly on non-Indigenous people, Mr. Ewert argued they were
less accurate for Indigenous persons like himself. He said that CSC was
not following the law by using these tools on Indigenous offenders
without proof that they worked.
Held: Assumed a s7 violation, but it was in keeping the PFJ.
SECTION 7 ANALYSIS
STEP 1: IS THERE A VIOLATION OF LLSP?
Court assumed a violation of s7.
STEP 2: VIOLATION OF PFJ?
Court ruled no violation of PFJ.
Trial Judge’s Findings
First, given the absence of evidence of accuracy, the CSC’s continued
use of the impugned tools in respect of Indigenous offenders was
inconsistent with the objective of predicting the risk posed by offenders
and was therefore arbitrary. Second, because the CSC’s reliance on the
impugned tools with respect to Indigenous offenders was arbitrary but
its reliance on them with respect to non-Indigenous offenders was
unobjectionable, its practice of using those tools for the entire inmate
population without distinguishing between Indigenous and nonIndigenous inmates was overbroad.
Rebutted by the SCC
To establish arbitrariness or overbreadth, Mr. Ewert had to show on a
balance of probabilities that the CSC’s practice of using the impugned
tools with respect to Indigenous offenders had no rational connection
to the relevant government objective.
o
The fact that a government practice is in some way unsound
or that it fails to further the government objective as
effectively as a different course of action would is not
sufficient to establish that the government practice is
arbitrary.
o
The finding that there is uncertainty about the extent to
which the tests are accurate when applied to Indigenous
offenders is not sufficient to establish that there is no
rational connection between reliance on the tests and the
relevant government objective. Indeed, taken at its highest,
Dr. Hart’s expert evidence does not support a finding that
there is no such rational connection.
o
In other words, there was no evidence before the trial judge
that how the impugned tools operate in the case of
Indigenous offenders is likely to be so different from how
they operate in the case of non-Indigenous offenders that
their use in respect of Indigenous offenders is completely
unrelated to the government objective.
S15
FREEDOM OF EQUALITY
SECTION 15 : FREEDOM OF EQ UALITY
Equality before and under law and equal protection and benefit of law
15. (1) Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without discrimination
and, in particular, without discrimination based on [enumerated grounds]
race, national or ethnic origin, color, religion, sex, age or mental or physical
disability.
Affirmative action programs
(2) Subsection (1) does not preclude any law, program or activity that has as
its object the amelioration of conditions of disadvantaged individuals or
groups including those that are disadvantaged because of [enumerated
grounds] race, national or ethnic origin, color, religion, sex, age or mental or
physical disability.
Two Concepts of Equality:
1. Formal equality
Equality under the law – all individuals treated equally; like people
treated like similar people
(Easier to put forward; America big on formal equality)
2. Substantive equality
Considers impact of the law – if groups are treated differently than
others, they can use s. 15 to foster equality
(S. 15(2) encourages courts to move towards substantive equality, as it
allows gov’t to ameliorate conditions of disadvantaged individuals even
if it doesn’t consider other individuals)
SECTION 15 – BASIC TEST: KAPP
Start with s.15(1) and only proceed to s.15(2) if it is clear in the fact that the
government is invoking s.15(2) and that their distinction is justified.
1. Does the law create a distinction based on an enumerated or analogous
ground?
2. (OR: Proceed below) Is the distinction discriminatory?
a.
Focus on whether the distinction “imposes burdens or
denies a benefit in a manner that has the effect of
reinforcing, perpetuating, or exacerbating disadvantage”:
Fraser at paras 27 & 81
*Section 15(2) (government justification) – To satisfy the requirements of
s.15(2), the government must establish that: Look to KAPP.
The programs has a genuinely ameliorative or remedial purpose:
AND
The program targets a disadvantaged group identified by the
enumerate or analogous grounds:
o
NOTE: If the government fails to meet these
requirements, it can still argue that the impugned
measure does not have a substantially discriminatory
impact within the meaning of section 15(1).
AND THEN if there is found to have been an infringement, proceed to an
Oakes analysis appealing to s.1.
EARLY INTERPRETATION AND APPLICATION OF S ECTION 15:
THE ANDREWS TEST
-
-
Drafting history of s. 15 reflects desire to move beyond Canadian Bill of
Rights
Was a period when s. 15did not apply – delayed for 3 years before
coming into play 1985 to give gov’ts a chance to review/alter its policies
o
This is why fed gov’t revised Indian Act – so it treated
men/women as equals
o
After coming into play, Andrews in 1989 was first time Court
considered s. 15
*Andrews (1989 was first & leading case for first decade of
jurisprudence, but court has strayed
21
-
-
*In Law v Canada (1999): SCC reformulated Andrews test –
burdensome differences only discriminatory if they violate the human
dignity of the claimant
But in R v Kapp (2008): SCC repudiated focus on human dignity; went
back to Andrews approach
Andrews/Kapp Test:
1. Differential treatment
2. On the basis of an expressly prohibited ground or one analogous
thereto
3. That is discriminatory because it imposes a burden or denies a benefit.
NOTES ON AN DREWS V L AW SOCIETY OF BRITIS H COLUMBIA
What is “Discrimination”?
“[D]iscrimination may be described as a distinction, whether
intentional or not but based on grounds relating to personal
characteristics of the individual or group, which has the effect of
imposing burdens, obligations, or disadvantages on such individual or
group not imposed upon others, or which withholds or limits access to
opportunities, benefits, and advantages available to other members
of society.”
“Distinctions based on personal characteristics attributed to an
individual solely on the basis of association with a group will rarely
escape the charge of discrimination, while those based on an
individual's merits and capacities will rarely be so classed.”
Analytical Framework
“[I]n assessing whether a complainant's rights have been infringed
under s. 15(1), 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 effect of the impugned distinction or
classification on the complainant must be considered.”
“Once it is accepted that not all distinctions and differentiations created
by law are discriminatory, then a role must be assigned to s. 15(1)
which goes beyond the mere recognition of a legal distinction.”
“A complainant under s. 15(1) must show not only that he or she is not
receiving equal treatment before and under the law or that the law has
a differential impact on him or her in the protection or benefit accorded
by law but, in addition, must show that the legislative impact of the law
is discriminatory.”
PURPOSIVE SCOPE OF S 15
-
ANDREWS V LAW SOCIET Y OF BRITISH COLUMBI A
FIRST CASE ON ANALOGOUS GROUNDS
Facts: Andrews was a British born citizen and challenged the law society’s
citizenship requirement for being called to the BC bar (otherwise had met all
the other requirements). Had to fulfill three years of permanent residence
before acquiring citizenship. Challenged citizenship requirement under s15.
Held: Court unanimously holds s15 was breached and not upheld under s1.
SECTION 15 ANALYSIS
Test for s. 15:
1. A distinction in treatment
(Although not every distinction results in inequality, and equal
treatment can produce serious inequality)
In general, equality of benefit and protection under the law
Of course, legislatures must treat different people differently at times,
and the goal is not to eliminate distinctions (this is why we have s.
15(2)/s. 35) but to eliminate discrimination
o
S. 15 provides guarantee against discriminatory measures
having the force of law
Sets definition of discrimination:
o
“A distinction, whether intentional or not but based on
grounds relating to personal characteristics of the
individual or group, which has the effect of imposing
burdens, obligations, or disadvantages on such individual or
group not imposed upon others, or which withholds or limits
access to opportunities, benefits and advantages available to
other members of society”
o
(Note: do not need to prove that government intended to
discriminate, as the impact is decisive regardless of intent)
2. That results in the imposition of a burden or denial of a benefit:
(Legislative impact of law on the person)
3. On the basis of an expressly prohibited ground or one analogous
thereto.
-
-
Andrews did not articulate the purpose of equality rights, and different
interpretations since then
Purpose of s. 15 discussed in R v Turpin (1989 SCC):
o
Whereas an option for judge and jury in Alberta on basis of
equality; murderers argue that Ontario court discriminated
against them by denying judge alone trial
o
Court rejects claim – saying s. 15 needs to fit into wider
social/political context; would be a stretch of the
imagination to treat persons charged with crime outside
Alberta as a minority group; this was not what s. 15 intends
to protect
o
Must be a disadvantage apart from the independent legal
distinction made
o
Says purpose of s. 15 is to prevent “discrimination against
groups suffering social, political, and legal disadvantage in
our society” (group-based disadvantage)
But is membership in disadvantaged group a precondition in s 15: R v
Hess; R v Nugyen (1990)?
o
Struck down CCC provision that defined statutory rape as
male person with female person under 14
o
Majority struck it down under s. 7, but dissenters (McLachlin
& Wilson) considered s. 15
o
Wilson: equality rights of boys not violated– biologically, act
only by men (questionable, as biological realities often used
negatively)
o
McLachlin: you do not need to be member of disadvantaged
group to suffer discrimination; here, violated s. 15 right of
men but upheld under s. 1 because males can’t be pregnant
(!)
Differential treatment on sex addressed in Weatherall v Canada (1993):
o
Equality not necessarily identical treatment - male prisoner
allowed to be frisked by women (even though females
cannot be frisked by male guards)
o
Biological/sociological differences in sex mean frisk of man
by woman does not implicate the same concerns as the
reverse
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STAGES OF ANALYSIS O F S.15 CLAIMS
STAGE 1: DIFFERENTIAL TREATMENT
Most often, differential treatment is apparent on the face of the law –
e.g., citizenship in Andrews.
o
This is direct discrimination.
Other times, no difference is apparent on the face of the provision.
o
These laws are “facially neutral” but look at effects.
o
These facially neutral laws may lead to discrimination via
adverse effects.
ELDRIDGE V BRITISH COLUMBIA (ATTORNEY GENERAL)
Facts: 3 deaf individuals prefer sign language, but BC didn’t pay for
interpreters for medical treatment. The BC Medical and Health Care Services
Act allowed for the Medial Services Commission to determine whether a
service is “medically required” and thus a benefit under the Act. Challenge
brought that failure to provide funding for signing interpreters is a violation
of s15(1).
Held: Court found the failure to provide such funding was a violation.
ANALYSIS
There need not be a discriminatory purpose or intent – it is sufficient that
the effect of the legislation is to deny someone the equal protection or
benefit of the law. Discrimination can result from facially neutral benefit
scheme (adverse effects discrimination). Also, do not need discriminatory
purpose or intent – as long as effect is to deny someone’s equality.
STAGE 2: ENUMERATED AND ANALOGOUS GROUNDS
Whether differential treatment is on basis of a personal characteristic
enumerated in s. 15(1):
o
Race
o
National or ethnic origin
o
Color
o
Religion
o
Sex
o
Age
o
Mental disability
o
Physical disability
Or analogous grounds: Andrews: analogous grounds if it shares the
essential features of the enumerated grounds of discrimination
(The limit to these grounds often criticized for limiting equality rights to
certain laws; also, for obscuring discrimination within groups)=
Recognized Analogous Grounds
These must share essential features with enumerate grounds – court has
recognized four:
1. Citizenship (Andrews)
2. Sexual Orientation (Egan)
3. Marital Status (Miron)
4. Off-reserve residence of status Indians (Corbiere)
NOTE: Once an analogous ground is recognized, it is recognized for all cases
and doesn’t need to be reproven!
TEST FOR ANALOGOUS GROUNDS FROM CORBIERE
Is the proposed analogous ground the basis for stereotypical decisions made
not on the basis of merit but on the basis of a personal characteristic that is
immutable or changeable only at unacceptable costs to personal identity.
STAGE 3: APPROPRIATE COMPARATOR GROUPS
Don’t need to do this.
STAGE 4: SECTION 15(2) AMELEROATIVE LAWS OR PROGRAMS
S. 15(2): a law, program or activity that has as its object the
amelioration (improvement) of conditions of disadvantaged individuals
or groups is not a violation of s. 15(1).
Purpose: allows govt to develop programs aimed at helping
disadvantaged groups improve their situation, s. 15(2) allows govt to
develop such programs without fear of challenge under s. 15(1).
If the govt can demonstrate that an impugned program meets the
criteria of s. 15(2), it may be unnecessary to conduct a s. 15(1) analysis
at all.
LAW V CANADA (MINIST ER OF EMPLOYMENT AND
IMMIGRATION)
ESTABLISHED AN INTERMEDIARY TEST FOR S15 BUT THEN THE COURT
REVERTED TO ANDREWS TEST IN KAPP. LIKELY NOT WORTH TALKING ABOUT
THIS CASE.
R V KAPP
SETS OUT MODERN 15(1) AND 15(2) TESTS
Facts: Non-Aboriginal commercial fishers held a protest fishery during the
period that was covered by the Aboriginal Communal Fishing Licenses. These
fishers were charged for fishing during prohibited time of 24 hours, where
Aboriginal bands had exclusive right to fish for salmon in Fraser River.
Held: It is a program covered by s.15(2) so we do not have to consider
s.15(1).
TEST
Emphasizes central concern of Andrews: combat discrimination, defined in
terms of perpetuating disadvantage & stereotyping
This central purpose underlies s. 15(1) – preventing and 15(2) –
enabling
Sets test for 15(2):
1. Program has an ameliorative or remedial purpose
2. Program targets disadvantaged group identified by the
enumerated/analogous grounds
ANALYTICAL FRAMEWORK OF A 15(1)/15(2) CLAIM
Purposive approach: S. 15(1) and s. 15(2) work together to “promote the
vision of substantive equality that underlies s. 15 as a whole”.
15(1) prevents discrimination against members under
enumerated/analogous grounds.
15(2) preserves rights of governments to implement programs without
fear of 15(1) risk.
Relationship with s. 15(2):
15(2): Not all distinctions are discriminatory; saves the fishing program here.
It is a law/program/activity – ameliorates conditions of disadvantaged
individuals/groups.
Rather than acting as interpretive aid/exemption from s. 15(1) – there
is a third option.
Approach for 15(2): if government can demonstrate program meets 15(2)
criteria, it may be unnecessary to conduct a 15(1) analysis at all
15(2) is not an exception to equality – rather, it confirms section 15(1),
yet it has an independent role (protecting ameliorative programs to
combat disadvantage)
Once distinction on enumerated/analogous grounds is found – then
look at whether it is ameliorative (rather than finding it symbolically
discriminatory then saving it as “ameliorative”)
15(2) involves a 2 step test:
o
(First) must have ameliorative/remedial purpose + (second)
targets a disadvantage group itself identified by enumerated
or analogous grounds
o
Focus on sincere purpose of program – more appropriate
than effects under s. 15(2)
o
Just needs to be a rational connection to ameliorative goal –
deference, but still reviewable
o
Also: ameliorative purpose does not need to be sole purpose
of a program
o
Ameliorate must be used properly - i.e., a
punishing/restrictive policy does not help the group
Application:
15(1): there was (1) a distinction (2) based on enumerated ground of
race
BUT, looking to 15(2): (i) has an ameliorative purpose + (ii) group is
identified by the grounds
o
Fishing license intended to ensure Ab fishing
rights/opportunities/self-sufficiency, to redress
social/economic disadvantage of Aboriginal peoples
Thus, there is no violation of s 15
NOTES ON R V KAPP
-
Lovelace (2000 SCC): Issue of First Nations casino; no violation of s.
15(1) because of ameliorative purpose; directed the analysis towards
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-
-
15(2) instead –relationship between 15(1) and (2) was explicitly left
open, but SCC said may wish to reconsider
Kapp reversed Lovelace structure, using 15(2) as the inquiry for
ameliorative purpose
Kapp takes relaxed stance to 15(2) to avoid US experience of
scrutinizing affirmative action programs; Kapp takes a very differential
approach to immunize from s. 15(1) scrutiny
Schneiderman: claims against universalistic schemes more likely to
succeed than targeted ones
QUEBEC (AG) V A
APPLICATION OF S15 TEST
Facts: Under the Quebec Civil Code, unmarried common law couples have no
right to claim spousal support or division of family assets. Lola claimed that
her constitutional right to equality pursuant to Section 15(1) of the Canadian
Charter of Rights and Freedoms (“Charter”) was violated by the Quebec Civil
Code as the Code extends property and spousal support rights to married
couples, but not to unmarried couples living together.
Held: Majority of the Supreme Court of Canada held that the Quebec Civil
Code’s failure to extend spousal support and property division to common
law couples was not in violation of the Charter.
S15 TEST
1. Does the law—on its face or in its impact (what it says or what it does –
adverse effects)– create a distinction based on an enumerated or
analogous ground?
o
Distinction: We don’t need to know comparative groups
part!
2. Does the distinction create an arbitrary or discriminatory disadvantage
by perpetuating prejudice or stereotyping on the claimant because of
his or her membership in an enumerated or analogous group? A law
creates arbitrary disadvantage when it fails to respond to the actual
capacities and needs of members of the group and instead imposes
burdens or denies benefits in a manner that has the effect of
reinforcing, perpetuating, or exacerbating disadvantage.
o
Focused on EFFECT, not DESIGN of the law – just needs to
perpetuate prejudice, regardless of if it was meant to (Abella
J)

Abella goes with protection of the vulnerable
model
o
Don’t have to prove that’s what the law was intended to
do; just have to prove that is its effect
o
Disadvantage alone is sufficient! (don’t need to show that
the discrimination is based on stereotyping). Basically, the
fact that there is a disadvantage is the problem.
ANALYSIS
Couples are free to marry or not marry and those who do not marry can
opt for a civil union that sets out rights of spousal support and property
division.
Alternatively common law couples have the option of entering into
agreements that specify their legal rights on break up.
The Supreme Court of Canada wished to protect individual autonomy
and the right to choose the nature of one’s relationship and the
governing law in the event of the break- up of that relationship.
On such grounds the distinction in treatment by the Quebec Civil Code
between married and common law couples as applied to both spousal
support and property division may be justified.
KAHKEWISTAHAW FIRST NATION V TAYPOTAT
DISCRIMINATION ON THE BASIS OF EDUCATION
DISPROPORTIONATE EFFECT
Facts: Kahkewistahaw First Nation in Saskatchewan spent 13 years
developing an Election Code which included a Grade 12 education
requirement for candidates who wished to be Chief or a Band Councillor.
Louis Taypotat, who had been Chief for most of the previous three decades,
was 76 years old and had a Grade 10 education. Despite the fact that he was
Chief for much of the consultation process that led to the development of the
new Election Code, he challenged the process, his disqualification, and the
constitutionality of the Grade 12 requirement. He argued that was that the
Grade 12 educational requirement violated s. 15(1) of the Canadian Charter
of Rights and Freedoms (“the “Charter”) because “educational attainment is
analogous to race and age” for the purposes of s. 15(1) .
Held: Given the lack of evidence, the SCC held that Mr. Taypotat failed to
establish a prima facie case that the Grade 12 educational requirements in
Kahkewistahaw First Nation’s Election Code breached s.15(1) of the Charter.
As a result, Kahkewistahaw First Nation did not have to go through the
exercise of justifying the educational requirements found in the Election
Code.
ANALYSIS
The focus of s. 15 is whether a law draws discriminatory distinctions
which have the effect of perpetuating arbitrary disadvantage based on
an individual’s membership in an enumerated or analogous group
The first part of the test asks whether a law creates a distinction on
the basis of an enumerated or analogous ground. The second part of
the test examines whether the impugned law fails to respond to the
actual capacities and needs of the members of the group and instead
imposes burdens or denies a benefit in a manner that has the effect of
reinforcing, perpetuating or exacerbating their disadvantage.
To establish a prima facie violation of s. 15(1), the claimant must
demonstrate that the law at issue has a disproportionate effect on the
claimant based on his or her membership in an enumerated or
analogous group
The SCC noted that educational requirements “that are unrelated to
measuring job capability can operate as “built-in headwinds” for
minority groups” have been found to be discriminatory. Likewise,
residence off-reserve has been recognized as an analogous ground of
discrimination under s.15(1)
The SCC held that in this case, however, the claimant presented
virtually no evidence about the relationship between age, residency on
a reserve, and education levels in the Kahkewistahaw First Nation, nor
was “there any evidence about the effect of the education provisions
on older community members, on community members who live on a
reserve, or on individuals who belong to both of these groups.”
FRASER V CANADA (ATT ORNEY GENERAL )
SECTION 15 AND SECTION 1 ANALYSIS DISTINCT
The court makes it clear that the s 1 analysis is separate and distinct from
the s15 analysis.
Important to then conduct an Oakes test to determine whether the s 15
infringing measure could be saved under s 1.
Focused on a lack of pension buy-back mechanisms for job-sharing RCMP
members.
Disproportionately impacted female members
Test for adverse-impact discrimination is the same as for direct
discrimination (para 48).
Focus on how claimant groups are impacted by laws / programs /
policies
No need for the claimant to prove an intention by government to
discriminate
The challenged provision does not need to be the cause of existing
disadvantage
Not every member of a claimant group needs to be impacted
Individuals outside the claimant group may also be impacted
ONTARIO (ATTORNEY GE NERAL) V G
Case included for a thorough discussion of s 1 analysis in the context of a s
15(1) case.
Ultimately, here the s 15(1) violation was not found to be justified
under s 1 of the Charter
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