Page 1 of 86 CONSTITUTIONAL LAW [1] Sources & Nature of the Constitution-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐ Definition of Constitutional Law: = The law prescribing the exercise of power by the organs of a State. It explains which organs can exercise legislative power (making new laws), executive power (implementing the laws) and judicial power (adjudicating disputes), and what the limitations on those powers are Sources
(a) Constitution Act, 1867 ! B.N.A Act, 1867 was renamed the Constitution Act, 1867 ! B.N.A Act: goal = confederation (split from UK) o Created the new Dominion of Canada by uniting 3 of the colonies of British North America and by providing the framework for the admission of all other British North American colonies and territories o Established the rules of federalism= rules that allocate governmental power between the central institutions (especially the federal Parliament) and the provincial institutions (especially the provincial Legislatures) o Did not follow the model of the Constitution of the United States in codifying all of the new nation’s constitutional rules " the reason was stated in the preamble to the Act: the new nation was to have “a Constitution similar in principle to that of the United Kingdom.” o Some of the most important rules were not matters of law at all, but were simply “conventions” which were unenforceable in the courts o Because of the absence of an amending clause in the BNA Act, the imperial Parliament enacted amendments to the Act until 1982, when the Constitution Act, 1982 (itself an imperial statute) finally supplied amending procedures which could be operated entirely within Canada. ! GAPS IN THE BNA ACT: o The office of Governor General has never been formalized in an amendment to the BNA Act – the office is still constituted by the royal prerogative and appointments are still made by the Queen (although acts on the advice of her Canadian ministers o The Rules of the System of responsible (cabinet) government never written into the BNA Act and so there is no mention of the Prime o
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Minister, or of the cabinet or of the dependence of the cabinet on the support of a majority in the House of Commons: the composition of the actual executive authority and its relationship of the legislative authority were left in the form of unwritten conventions – as in the UK No amending clause – amendments go through UK Parliament No mention of responsible government No rules for Supreme Court (said there can be one, but didn’t establish) No Civil Rights protected (left to UK common law) Constitution Act, 1867: “whereas the provinces of Canada, Nova Scotia, and New Brunswick have expressed their desire to be federally united into one Dominion under the Crown of the UK of Great Britain and Ireland, with a constitution similar in principle to that of the UK.” (b) Constitution Act, 1982 ! Made 3 important repairs to Canada’s constitutional law: (1) a domestic amending formula was adopted; (2) the authority over Canada of the United Kingdom (imperial) Parliament was terminated; and (3) the Charter of Rights was adopted ! the phrase “Constitution of Canada” was used for the first time in this Act (c) Constitution of Canada ! defined in s. 52(2)of the Constitution act, 1982-­‐ it includes: o (a)the Canada Act 1982, including the Constitution Act 1982 o (b)the thirty other Acts and orders, including Constitution Act 1867 o (c) amendment which may be made ! the Charter of Rights is part of the Constitution of Canada because it is Part I of the Constitution Act, 1982, which is schedule B of the Canada Act 1982, which is expressly named in s 52(2) ! Definition of constitution is not exhaustive “uses word includes” ! The supremacy clause is s. 52(1), -­‐ affirms the primacy of the Constitution of Canada which provides: The Constitution 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 " this gives priority to the ‘Constitution of Canada’ where is it inconsistent with other laws. Page 2 of 86 The entrenchment clause is s 52(3): Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada " effect? Constitution of Canada cannot be amended by ordinary legislative action, but only by the special amending procedures laid down by Part V of the Constitution Act, 1982 o Reasons for entrenching: o “May provide an added safeguard for fundamental human rights and individual freedoms “ o “may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to promote their identities against the assimilative pressures of the majority’ o “may provide for a division of the public power that allocates political power amongst different levels of government” Downside of not having complete constitutional text: lawyers need to search through the following sources to define the constitution: (d) Imperial Statutes ! Both Constitution Act 1867 and 1982 are imperial statutes ! = statutes enacted for Canada by the UK Parliament in its role as imperial Parliament ! these 2 statutes are within the definition of the Constitution of Canada in s 52(2) of the constitution Act 1982, they are supreme over other laws and can be amended or repealed only in accordance with the amending procedures of Part V of the Constitution of Canada ! Other imperial statues have no effect on Canada. (e) Parliamentary Privilege ! Common law powers ! Not subject to the Charter (unlike other common law powers of government) ! The Federal Houses of Parliament and the provincial legislative assemblies possess a set of powers and privileges that are “necessary to their capacity to function as legislative bodies”; these powers and rights are known collectively as “parliamentary privilege” ! ie. freedom of speech in debate, including immunity from legal proceedings for things said in debate ! could be regarded as a branch of the common law in that it is not contained in any statute or other written instrument, and it is the courts who determine its existence and extent ! Canada v Vaid (2005) " sweeping claim of parliamentary privilege failed to meet the test for necessity. “hiring/firing of all employees in gov not protected” !
Re Remuneration of Judges (1997) – the Supreme Court found an unwritten
principle of judicial independence in the Constitution of Canada that could have
the effect of invalidating statutes that reduced judges salaries
(f) Case Law ! Another important source of constitutional law ! As part of the process of “interpretation”, the SCC has not hesitated to find “unwritten” principles that “underlie” the text of the Constitution Act 1867, and the Constitution Act, 1982. ! For example, the courts use the doctrine of parliamentary privilege, which is nowhere mentioned in the 2 Acts, to exempt the actions of legislative assemblies from the Charter of Rights ! REFERENCE RE SECESSION OF QUEBEC [1998]: • SCC invoked 4 unwritten fundamental principles of the Constitution: (1) democracy, (2) federalism, (3) constitutionalism and the rule of law and the (4) protection of minorities to hold that, if a province were to decide in a referendum that it wanted to secede from Canada, the federal government and the other provinces would come under a legal duty to enter into negotiations to accomplish the secession • Illustrates the active and creative role that the modern SCC has carved • This case carries the Constitution of Canada way beyond the literal language of its text and way beyond the intentions of the framers (g) Prerogative ! the royal prerogative consists of the powers and privileges accorded by the common law to the Crown ! powers or privileges unique to the Crown • Making treaties • Conducting war • Office of Governor General • Appointment of prime minister and ministers • Obtaining passports • Creation of aboriginal reserves ! Dicey described it as “the residue of discretionary or arbitrary authority, which at any given time is left in the hands of the Crown” ! a branch of the common law, because it is the decisions of the courts which have determined its existence and extent ! apart from the power over the colonies, the courts held that there was no prerogative power to legislate: only the Parliament could make new laws ! The courts also held that there was no prerogative power to administer justice: only the courts could adjudicate disputes according to law – these decisions confined the prerogative to executive governmental powers ! Powers can be abolished or limited by a statute, and once a statute had occupied the ground formerly occupied by the prerogative, the Crown had to comply with the terms of the statute Page 3 of 86 The exercise of the Crown’s prerogative powers is regulated by conventions, not laws. These powers are now limited by the courts, who have power to determine existence, compliance with statute, charter etc. (1.9 note. ) (h) Conventions I.
Definitions of conventions [ generally regarded as obligatory ] • = Rules of the constitution that are not enforced by the law courts because they are regarded as non-­‐ legal rules. • Prescribe the way in which legal powers shall be exercised • Some have the effect of transferring effective power from the legal holder to another official or institution • Other limit or do not apply a legal power. • Example: the Constitution Act 1867 and many Canadian statutes, confer extensive powers on the Governor General or on the Governor General in Council (aka Prime Minister & cabinet), but a convention stipulates that the Governor General will exercise those powers only in accordance with the advice of the cabinet or in some other case the Prime Minister • Where “unconstitutionality” springs merely from a breach of convention, no breach of the law has occurred and no legal remedy will be available • Requirements (courts ask) for establishing a convention (also for determining whether a usage has become a convention): Patriation Reference o What are the precedents/ rules? o Did the actors believe that they were bound by a rule? o Is there a reason for the rule? II.
Conventions in the courts • Although a convention will not be enforced by the courts, the existence of a convention has occasionally been recognized by the courts • Patriation Reference (81) – Courts found convention to exist that federal government needed substantial approval from provinces to amend the constitution. Yet there was no legal requirement to do so. III.
Convention and usage • Convention are often distinguished from “usages”: a convention is a rule which is regarded as obligatory by the officials to whom it applies • a usage is not a rule, but merely a governmental practice (tradition) which is ordinarily followed, although it is not regarded as obligatory !
Example of usage: the practice of appointing to the position of Chief Justice of Canada the person who is the senior puisne judge of the SCC at the time of the vacancy • A usage may develop into a convention – if a practice is invariably followed over a long period of time, it may come to be generally regarded as obligatory and thereby cease to be merely a usage – the resulting convention may be called a custom = the ways in which most conventions have been established • Patriation Reference was the first time courts looked at different between usage and convention (custom). They asked three things found above. Provinces argued that the rule was crystalized into law (common law) and thus was now obligatory. Yet no precedent on crystallization of conventions in past. Convention and law • A convention could be transformed into law by statute and/or the enforcement of the courts • So why are they obeyed? o Breach = serious political consequences. •
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Page 4 of 86 [2] Amending Procedures-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐ History of amendment (a) Imperial amendment ! BNA Act, 1867 differed from the constitutions of US and AUS (and other federal countries) in that it contained no general provision for its own amendment " Until 1982, amendments to the BNA Act had to be enacted by the UK (imperial) Parliament ! In 1931, when the Statute of Westminster conferred upon Canada (and the other dominions) the power to repeal or amend imperial statutes applying to Canada, BUT NOT the BNA Act " this was done so that the BNA Act could not be amended by an ordinary statute. This was already a longstanding convention anyways. ! The BNA Act could still be amended only by the UK Parliament ! Imperial Conference of 1930 = Constitutional convention: UK Parliament would not enact an amendment to the BNA Act (or any other law applying to Canada) except at the request and with the consent of Canada o Convention did not stipulate which governmental bodies in Canada should make the request for, and give the consent to, proposed amendments to the BNA Act o However, long before 1930, the practice had developed of requesting amendments by a “joint address” of the Canadian House of Common and the Canadian Senate ! What was the role of the provinces in the amending process? ! Patriation Reference 1981! held that the consent of the provinces to the proposed amendments was not required “as a matter of law”, but that a “substantial degree” of provincial consent was required “as a matter of convention” o The Constitution Act, 1982, Part V, introduces into the Canadian Constitution a set of amending procedures which enable the BNA Act (now renamed Constitution Act, 1867) and its amendment to be amended within Canada without recourse to the UK Parliament. (role of UK Parliament in Canada amendment process is eliminated) o The role of the federal and provincial governments in the amendment process are now defined in precise statutory language. o The vague and unsatisfactory rules laid down by the SCC in Patriation Reference (above) have been replaced and have NO CURRENT RELEVANCE. o The new procedures in Part V of the Constitutions Act, 1982 constitute a complete code of legal (as opposed to conventional) rules which enable all parts of the “Constitution of Canada” to be amended. (b) The search for a domestic amending procedure ! Constitution Act 1982 was the result end of a search for a domestic amending procedure which started in 1927. ! Two previous attempts were made. Both giving veto power to Quebec. ! The elimination of the UK Parliament in Canada’s amendment process could not be accomplished until a domestic amending procedure had been enacted into Canada’s Constitution (c) The failure to accommodate Quebec ! The Constitution Act 1982 was a major achievement, curing several long standing defects in the Constitution of Canada ! Accomplishments: As well as the adoption of domestic amending procedures (ss38-­‐49), a Charter of Rights was adopted (ss1-­‐34), aboriginal rights were recognized (s35), equalization was guaranteed (s36), provincial powers over natural resources were extended (ss50-­‐51), and the Constitution of Canada was defined and given supremacy over other laws (s52). ! BUT the Constitution Act 1982 failed to accomplish one of the goals of constitutional reform, and that was the better accommodation of Quebec within the Canadian federation ! Quebec viewed the amendments as non binding, and often utilized s33. Notwithstanding clause to opt out of legislation. Yet they were legally bound. Part V of the Constitution Act, 1982 (ss38-­‐49) (amending procedure) ! Replaced Patriation Reference approach of using constitutional convention of obtaining provincial consent to a substantial degree ! Part V of the Constitution Act 1982 is headed ‘Procedure for Amending Constitution of Canada.” It provides 5 different amending procedures: 1. General amending procedure (s 38)-­‐ aka the 7/50 Rule (A) Section 38(1)-­‐ requires that an amendment to the Constitution be authorized by (a) Resolution of Both House of the federal Parliament (Senate & House of Commons); and (b) Resolutions of the legislative assemblies of at least two-­‐thirds of the provinces, provides that they represent at least 50 % of the population of all the provinces (in practice: at least 1 Western Province, at least 1 Atlantic Province, Quebec or Ontario= 7/50 rul (B) Proclamation • Once the authority for an amendment has been provided by the requisite number of resolutions of assent, s 38(1) provides that the Page 5 of 86 •
formal act of amendment is accomplished by a “proclamation issued by the Governor General under the Great Seal of Canada” Section 39 imposes time limits on the issue of this proclamation –
39(1)-­‐ the proclamation is not to be issued until a full year has elapsed from the adoption of “the resolution initiating the amendment procedure”, unless before then all provinces have adopted resolutions of assent or dissent. (C) Initiation ! Procedure for amendment “may be initiated either by the Senate or the House of Commons or by the legislative assembly of a province (s 46(1)) [anyone who has authority to amend] (D) Opting Out ! s 38(3) enables any province to opt out of an amendment that derogates from the province’s powers, rights or privileges and that is unacceptable to it. Not a veto, just amendment dosnt apply to it. ! A MAXIMUM OF 3 PROVINCES could opt out of an amendment—if there were more than 3 dissenting provinces, the amendment would not have the support of two-­‐thirds of the provinces and would therefore be defeated (7/50 Rule) ! S 38(3)-­‐ a resolution of dissent must be passed “prior to the issue of the proclamation to which the amendment relates” (cant opt out after). (E) Compensation for Opting Out (only for edu / cultural matters) ! Section 40 imposes upon the federal government the obligation to provide “reasonable compensation” to any province that has opted out of an amendment that transfers “provincial legislative powers relating to education or other cultural matters” from the provincial Legislatures to the federal Parliament-­‐" purpose of this obligation: to ensure that a province is not abandoning jurisdiction over educational or cultural matters because of financial issues. ! Amendments that do not relate to education or cultural matters do not carry any constitutional right to compensation for opting out (F) Revocation of Assent or Dissent ! A resolution of assent may be revoked only before the issue of the proclamation authorized by the resolution (s46(2) ! 38(4)-­‐ a resolution of dissent (an opting-­‐out resolution) may be revoked at any time, before or after the issue of proclamation (G) Section 42 ! The general amending procedure (the 7/50 formula) is the correct one for the residual class of amendments which are not covered by the more specific procedures of ss 41, 43, 44 and 45 ! In addition s 42 requires that the general amending procedure be used for 6 defined classes of amendments to the Constitution of Canada 42(1)(a) refers to “the principle of proportionate representation of the provinces in the House of Commons” ! But grandfather clause (which guaranteed that provinces with declining populations would not lose any seats on a readjustment) does not require 7/50 amendment: Campbell v. Canada o 42(1)(b)(c) refer to the powers of the Senate, the method of selecting senators and provincial representation in the Senate o 42(1)(d) refers to the SCC in all aspects other than its composition (specifically listed in s 41(d)-­‐ the unanimity procedure) ! Supreme Court Act is a federal statute that is not one of the instruments forming part of the constitution. Since s 42 applies only to amendments to the “constitution of Canada” the federal parliaments acting under s 101 of the CA 1867 is the amending power of the supreme court act ! Supreme Court of Canada Act can be changed by ordinary legislation o s.42(1)(e) refers to the extension of existing provinces into the territories, and par (f) to the establishment of new provinces – ! The Constitution Act 1871, by s 2 authorizes the federal parliament to establish new provinces in federal territories and by s 3 authorizes the federal Parliament, with the consent of a province, to extend the boundaries of a province " these provisions were not repealed or amended in 1982 and can still be operated without any change in the Constitution of Canada (H) “Regional Veto” Statute • The general (seven-­‐ fifty) amending formula of s 38 does not give any province a veto over constitutional amendments • Purpose of the statute: to import new conditions into the general (seven-­‐fifty) formula for amending the Constitution of Canada • On top of the constitutional requirement of support by 7 provinces representing 50% of the population, the statute imposes the new statutory requirement that the 7 agreeing provinces must include the five “regions” stipulated in the Act, namely, Ontario, Quebec British Columbia, two Atlantic provinces and two Prairie provinces • Only applies to amendments that are to follow the general (seven-­‐
fifty) amending procedure of s 38 and that do not afford a dissenting province the constitutional right to “opt-­‐out” •
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Page 6 of 86 2. A unanimity procedure (s 41) [needs unanimous votes] ! for 5 defined kinds of amendments, requiring the assents of the federal Parliament and all of the provinces ! s41 lists 5 matters which an amendment to the Constitution of Canada requires the unanimous support of the provinces, as opposed to the two-­‐
thirds majority called for by the general procedure of s 38(1) ! Subject to no time limit ! Brought into force by a proclamation of the Governor General ! In respect of these matters, each province has a veto over amendments ! The 5 listed topics are specially entrenched because they are deemed to be matters of national significance which should not be altered over the objection of even one province (a)= “the office of the Queen, the Governor General and the Lieutenant Governor of a province”-­‐ • Effect of entrenching provisions of the constitution of Canada that deal with the monarchy and its representatives in Canada (b)= entrenches the right of the least populous provinces to a minimum number of members in the House of Commons, o Thereby modifying the relentless application of representation by population " this provision called the “senate floor” was established to limit the declining representations of the maritime provinces by the BNA Act 1915, which added a new s 51A to the BNA Act (now Constitution Act 1867). If s 51A were not protected by s 41, it would be arguable that it could be repealed or amended by the federal Parliament alone under s 44 (c)= entrenches those provisions of the Constitution of Canada that make provision for “the use of the English or French language” (d)= entrenches the “composition of the SCC”-­‐ -­‐
The term “composition” is not entirely clear: the total number of judges, and the number of judges who must be drawn from a particular region, are probably aspects of composition; the mode of appointment is probably not. (but since rules regarding the composition of the SCC are contained in the Supreme Court Act, which is not part of the “Constitution of Canada” par (d) is probably ineffective – composition of the SCC can still be changed by the ordinary legislative process of the Parliament of Canada (e)= provides that any amendment to the amending procedures themselves (“this part” being part V of the Constitution Act 1982) can only be effected by the unanimity procedure of s41 3. A some-­‐but-­‐not-­‐ all provinces procedure (s 43) ! For amendment of provisions not applying to all provinces, requiring the assents of the federal Parliament and only those provinces affected ! S 43 of Constitution Act 1982: 43. An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including (a) Any alteration to boundaries between provinces, and (b) Any amendment to any provision that relates to the use of the English or the French language within a province, May be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies •
There are provisions of the Constitution of Canada which apply to one or more, but not all, provinces Hogan v Newfoundland (2000): rights of minority are entrusted to majority, but protection is provided by more complicated procedure o
if a provision of the constitution only applies to one province s 43 expressly applies to that provision BUT, s 45 gives province exclusive right to amend “constitution of the province” o
Alternatively: s 43 applies to anything found in the Constitution Acts, and s 45 applies to issues outside those acts !
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4. The federal Parliament alone (s 44) ! Has power to amend provisions relating to the federal executive and House of Parliament ! 44. Subject to section 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons (by ordinary legislation) (ordinary= not entrenched legislation) The matters listed in s 42 which include some of the rules regarding the Senate and House of Commons can be amended only by the general (seven-­‐ fifty) amending procedure of s 38(1), which requires the consent of two-­‐thirds of the provinces having at least 50% of the population 5. Each provincial Legislature alone ( s 45) ! S 45. Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province ! Authorizes each provincial Legislature, by ordinary legislation, to amend the “constitution of the province” ! S 45 differs from ss 38, 41, 42, 43, and 44 in that s 45 makes no reference to the “Constitution of Canada”, a term defined in s 52(2) of the Constitution Act 1982. Instead s 45 refers to the “constitution of the province”, which is not defined anywhere in the Constitution Act 1982 !
Page 7 of 86 Future Amendments (a) Forces of change ! the movement for constitutional reform which led to the constitutional amendments of 1982 and which will lead to continuing efforts to adopt other amendments to the Constitution, is powered by a number of forces o French-­‐ Canadian nationalism= French Canadians are a minority in the nation as a whole, but a majority in the province of Quebec. Their distinctive language and culture, nurtured by the memory of the conquest by the English and the constant danger of assimilation, has made them anxious to be masters in their own house. This inevitably leads to demands for greater power in the provincial Legislature in Quebec City – the Legislature that is controlled by a French-­‐ Canadian majority o Western regionalism = this is based, not on a distinctive language or culture, but on the distinctive economic base of four western countries. Because the bulk of Canada’s population is concentrated in Ontario and Quebec, federal policies have tended to favour the manufacturing industries and consumers of central Canada o Aboriginal peoples of Canada = they seeks entrenchment of an explicit right to self – government and a right to participate in the process of constitutional amendment at least where aboriginal rights could be affected o Canadian nationalism o Civil libertarian impulse to entrench a Charter of Rights in the Constitution (b) Division of powers ! The most obvious way to redress the grievances of French Canadians and western Canadians is to reduce the powers of the federal Parliament, which they do not control, and to increase the powers of the provincial Legislatures, which they do control. ! The 1982 amendments made only one change in the division of powers between the 2 levels of government, and that was an increase in the provincial power over natural resources (c) Central institutions ! Different approach to constitutional change concentrates on reforming the institutions of the federal government so that regional attitudes and interests are more effectively represented within those institutions ! The theory is that the more effectively these attitudes and interests are represented within the central institutions the wider is the range of powers that may be conferred on central institutions General Considerations ! Amending procedures apply to the Constitution, as defined in s 52(2) ! some odd exceptions: Supreme Court of Canada Act, Official Languages Act ! The amending procedures are not required for the amendment of statutes or instruments that are not part of the Constitution of Canada; anything that is not part of the Constitution of Canada can be amended by the ordinary action of the competent legislative body ! Charter does not apply to most amending procedures, because it can be modified by the general procedure but Charter applies to amendments within exclusive federal or provincial jurisdiction Secession (Chap 5.7) (a) The power to secede (break away, pull out, withdraw) ! There is no reason in principle why a federal constitution should not give a power of secession to its provinces or states ! The absence of any provision in the Constitution authorizing secession makes clear that no unilateral secession is possible ! The question whether a province has the power to secede from the Canadian federation became an issue after the election in Quebec in 1976 of the Parti Quebecois ! The 1995 referendum proceeded on the assumption that a unilateral declaration of independence would be legally effective to remove Quebec, with its present boundaries, from Canada, without the need for any amendment of the Constitution of Canada and regardless of whether the terms of separation were agreed to by Canada SECESSION REFERENCE (1998) -­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐ ! Operation of Constitutional Principles in the Secession Context o Was a reference by the federal government to the SCC, in which the Court was asked whether Quebec could secede unilaterally (separately, individually) from Canada o SCC held: the secession from Canada of a province could not be undertaken in defiance of the terms of the Constitution of Canada. the principle of the rule of law or constitutionalism required that a government, even one mandated by a popular majority in a referendum, must still obey the rules of the Constitution o A secession should be in accordance with the Constitution’s amending procedures. (not clear which of the 5 different amending procedures is the correct one) o Democratic principles demand that considerable weight be given to a clear expression by the people of Quebec of their will to secede from Canada, even though a referendum, in itself and without Page 8 of 86 o
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more, has no direct legal effect, and could not in itself bring about unilateral secession the federalism principle, in conjunction with the democratic principle, dictates the clear rejection of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire. The conduct of the parties in such negotiations would be governed by the same constitutional principles which give rise to the duty to negotiate: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities any attempt to effect the secession of a province from Canada must be undertaken pursuant to the Constitution of Canada, or else violate the Canadian legal order. However, the continued existence and operation of the Canadian constitutional order cannot remain unaffected by the unambiguous expression of a clear majority of Quebecers that they no longer wish to remain in Canada principle of effectiveness ! a unilateral declaration of independence by a province could lead to a de facto secession , which might take place without the required agreement or the required amendment – such a secession would be unconstitutional – however, an unconstitutional secession could become successful if the seceding government achieved effective control of a territory and recognition by the international community Page 9 of 86 [3] Federalism & Judicial Review-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐ Distribution of governmental power (a) Federalism ! Canada is a federal state, or a federation ! Federal state= governmental power is distributed between a central (or national or federal) authority and several regional (or provincial or state) authorities, in such a way that every individual in the state is subject to the laws of two authorities, the central authority and a regional authority ! Central authority and regional authority are “coordinate”, neither is subordinate to the other ! Alternatively, unitary state= governmental power is vested on one national authority ! In every federation, in the event of an inconsistency between a federal and provincial or state law it is the federal or national law which prevails (b) Confederation ! Canada often described as a “confederation”. Yet it is a unique principle. ! In Canada, a Central government was established and was independent of the provinces and coordinated with them. (c) Legislative union ! UK is a legislative union of England, Wales, Scotland, and Northern Ireland ! = closest possible kind of union, in which the united states or provinces form a new unitary state which incorporates the former units and subjects them to the authority of a single central legislature. (d) Special status ! the provinces are not equal in wealth, status or actual power; nor is their constitutional situation exactly equal ! “special status” is the term which has been applied to proposals for constitutional change under which one province (most likely, Quebec) would possess larger powers than the other provinces (e) Dominions and provinces ! In a federal state it is necessary to find suitable vocabulary to describe: o Regional authorities= the provinces o The following 2 have not been satisfactorily resolved: ! Central authority= the Dominion ! Nation as a whole= Dominion of Canada (f) subsidiary ! = decisions affecting individuals should, as far as reasonably possible, be made by the level of government closest to the individuals affected In Canada, the principle has rarely been invoked in political discourse One of the primary goals of confederation in 1867 was to preserve a considerable degree of autonomy for the 4 original provinces ! Another primary goal-­‐ to provide the uniting provinces with the collective benefits of an economic union, greater financial strength and an increased strength capacity for defence -­‐-­‐-­‐to these ends the BNA Act 1867 invested the federal Parliament with authority over such matters as customs and excise, interprovincial and international trade and commerce, banking and currency, all forms of taxation and national defence—this was consistent with the principle of subsidiarity ! Powers over criminal law, penitentiaries and marriage and divorce were entrusted to the federal level, contrary to the principle of subsidiarity Reasons for federalism (Federation) ! The genesis of the federal system in Canada was a political compromise between proponents of unity (who would have preferred a legislative union) and proponents of diversity (who were unwilling to submerge the separate identities of their provinces) Advantages: ! In a country that cover diverse regions, there may be advantages of efficiency and accountability in dividing the powers of government so that a national government is responsible for matters of national importance and provincial or state governments are responsible for matters of local importance ! A province or state may serve as a “social laboratory” in which new kinds of legislative programmes can be “tested”-­‐ if a new programme does not work out, the nation as a whole has not been placed at risk – social credit, medicare, family property regimes, -­‐ no-­‐fault auto insurance ! A more decentralized form of government can be expected to be able to identify and give effect to different preferences and interests in different parts of the country. ! Facilitate pursuit of collective goals by cultural and linguistic minorities forming majority in province (SCC-­‐ Quebec Secession Reference) ! Avoids one large bureaucracy o Efficiency o Allows for different preferences across country !
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Page 10 of 86 Federalism in Canada (Canada as a Federal Nation (a) The terms of the Constitution ! BNA Act gives the provinces only enumerated powers to make laws, giving the residue of power to the federal Parliament (indication framers wanted strong central government) ! s 91(2)-­‐ federal parliament given power to regulate “trade and commerce” without qualification ! other federal parliament powers/areas: banking (s 91(15); marriage and divorce (s.91(26); criminal law (s. 91(27); and penitentiaries (s91(28) ! federal parliament was given by s 91(3) the power to levy indirect as well as direct taxes while the provinces were confined by s 92(2) to direct taxes Proof that provinces were made subordinate in situations (non federalist): ! 90 – Federal govt given power to invalidate provincial statute. ! 92(1)-­‐ provinces were denied the power to alter that part of their constitution ! S 93-­‐ the federal government was given the power to determine appeals from provincial decisions affecting minority educational rights, and the federal parliament was given the power to enforce a decision on appeal by the enactment of “remedial laws” Therefore – Quasi Federal State of Canada (b) Judicial interpretation of the distribution of powers ! believed strongly in provincial rights and they established precedents that elevated the provinces to coordinate status with the Dominion and gave a narrow interpretation to the principal federal powers (the residuary power and the trade and commerce power) and a wide interpretation to the provincial power (over property and civil rights in the province) (c) Appointment of Lieutenant Governors ! the federal power to appoint Lieutenant Governors is another apparent breach of the federal principle. This power is regularly exercised by the federal government, but once an appoint is made the Lieutenant Governor is no so sense the agent of the federal government: he is obliged by the conventions of responsible government to act on the advice of the provincial cabinet (d) Appointment of Judges: -­‐ s96 – Fed to appoint judges to higher provincial courts, when needed to be filled. Tradition of judicial independence is so strong that it is never been seriously claimed that fed-­‐apointed judges would favour federal governments. Supremacy of the Constitution ! The constitution (or at least this part of it) must be in writing, because such a vital matter could not be left to unwritten understandings (federal principle). ! Federal constitutions must be rigid and entrenched (with amending). !
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The constitution must be “supreme”, meaning that it must be binding on , and unalterable by, each of the central and regional authorities As well, s 52(1) of the Constitution Act, 1982 expressly affirms the supremacy over all other laws of the Constitution of Canada Role of the Courts (a) development of judicial review ! Provisions of a constitution distributing legislative power will be couched in general language which cannot possibly be free from doubt or ambiguity – so there will be disputes whether or not a particular legislative body has the power to enact a particular statute ! any federal system therefore has the machinery for settling disputes about the distribution of legislative power ! section 52(1) stipulates that the “Constitution of Canada” is the “supreme law of Canada”, and that “any law is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”. Section 52(1) is the current basis of judicial review in Canada ! Constitution Act 1982 also broadened the scope of judicial review by adding a Charter of Rights to the Constitution of Canada. It adds an additional set of provisions limiting the powers of legislative bodies. Those limits give rise to judicial review. (b) Limitations of judicial review ! One function of judicial review is to enforce distribution of powers: Function
1 ! The rules of federalism: whether a particular statute comes within the powers conferred by the Constitution of the legislative body that enacted the statute: if the statute is judicially determined to be outside the powers conferred upon the enacting body, then the statute is ultra vires and for that reason is invalid nd
! 2 function of judicial review: to enforce the Charter restrictions and the other Function
non-­‐ federal restrictions. The courts often have to decide whether a statute 2
violates a constitutional prohibition, for example, by unjustifiably abridging freedom of expression: if the statute is judicially determined to violate the prohibition, then the statute is ultra vires and for that reason invalid ! Language of the Constitution: broad / vague-­‐ rules that distribute the whole range of legislative power occupy only a few pages of text, as does the charter-­‐ the scope of potential governmental activity that the rules address is so enormous that many problems will be overlooked by the framers of the text ! Therefore courts have larger discretionary judgment to its constitutional decisions – as Hughes C.J. of the US Supreme Court made in his celebrated mark: “we are under a Constitution, but the Constitution is what the judges say it” ! Canada’s adoption of the Charter of Rights in 1982 was a conscious decision to increase the scope of judicial review Page 11 of 86 !
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[4] Principles of Interpretation-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐ Judicial Review on Federal Grounds !
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Federalism= the distribution of powers between a central authority (federal Parliament) and regional authorities (Provincial Legislatures) that constitute the essence of a federal constitution This part will examine the doctrines, techniques and the language employed by the courts in carrying out the review of distribution of powers questions (i.e. challenged on “federal grounds” the distribution of legislative power between the federal Parliament and the provincial Legislatures is mainly set out in ss 91 and 92 of the Constitution Act, 1867 o s 91-­‐ laws competent to the federal Parliament o s 92-­‐ laws competent to the provincial Legislatures o both sections use a distinctive terminology, giving legislative authority in relation to “matters” coming within “classes of subjects”-­‐ this terminology emphasizes and helps to describe the 2 steps involved in the PROCESS of judicial review: !
STEP 1: IDENTIFY THE “MATTER” (OR PITH AND SUBSTANCE) OF THE CHALLENGED LAW = THE CHARACTERIZATION OF THE CHALLENGED LAW STEP 2: TO ASSISGN THE MATTER TO ONE OF THE “CLASSES OF SUBJECTS” (OR HEADS OF LEGISLATIVE POWER)= THE INTERPRETATION OF THE POWER-­‐ DISTRIBUTING PROVISIONS OF THE CONSTITUTION 3 key federalism doctrines: o
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Pith & Substance: is the law valid? Interjurisdictional Immunity (“IJI”): core of an enumerated power is immune from intrusion by other government Paramountcy: is the provincial law inoperative because of a conflict with federal law? Priority between Federal and Charter Grounds ! when a law is challenged on both federal and Charter grounds, does the Constitution accord priority to one grounds over the other? ! S 52, Constitution Act 1982-­‐ a law that is contrary to any provision of the Constitution of Canada is “of no force or effect”. Both the federal distribution of powers and the Charter of Rights are part of the “Constitution of Canada” !
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Where there is a distribution of-­‐powers argument and a Charter argument for the invalidity of a law, the arguments cannot both be successful HOGG: Federal arguments should precede Charter ones. If you are arguing both grounds, you should frame the Charter argument as one “in the alternative”, not an addition, to an argument based on a federal ground: in reviewing the validity of a law, the first question is whether the law is within the law-­‐ making power of the enacting body, and the second question is whether the law is consistent with the charter of rights. The priority of the federal ground does not mean that a court deciding a constitutional case must always dispose of the federal issue before proceeding to the Charter issue The court can decide the case on the ground that seems strongest to the court Another point in favour of the logical priority of federalism issues over Charter issues is the presence of the Charter of Rights of the power of override. o S 33 of Charter-­‐ enables the Parliament or a Legislature to override most of the provisions of the Charter by including in a statute a declaration that the statute is to operate notwithstanding the relevant provision of the Charter. Such a statute is then valid, despite the breach of the Charter. There is no similar saving provision for a breach of the federal distribution of powers STEP 1: Characterization of Law . (a) “Matter” (pith and substance “dominant feature”) ! First step is to identify the matter of the challenged law, ie. Identify the dominant or most important characteristic of the challenged law (the PITH AND st
SUBSTANCE) (1 doctrine of federalism) o Yet when identifying the matter of law courts often use concepts which will assist in determining to which head of power it should be allocated (second step): often settling question of validity, leaving allocation of mater to class a formality. ! Purpose of identifying the “matter” of a law: to determine whether the law is constitutional or not. ! “pith and substance” doctrine enables one level of government to enact laws with substantial impact on matters outside its jurisdiction ! Court will look beyond the direct legal effects to inquire into what the actual purpose of the act is in determining who will regulate it ! Difficulty is where a statute has features that come within a provincial AND federal head of power. Here you make a judgment as which is the most important feature of the law and characterize the law by that feature (the dominant feature is the “pith and substance” or “matter” of the law; the other feature is merely incidental) Page 12 of 86 This distinction is commonly expressed by using the phrase “in relation to”. For example the challenged act was “in relation to X” and merely “affected” Y ! There are many examples of laws which have been upheld despite their “incidental” impact on matters outside the enacting body’s jurisdiction o ie a federal law in relation to navigation and shipping (federal matter) may validly regulate labour relations in a port (provincial matter) (Stevedores Reference 1955) ! Essentially, 2 things must be examined: the purpose of the enacting body and the legal effect of the law (Reference re Firearms Act) (b) Singling out ! There a number of cases in which provincial laws have been upheld, notwithstanding that the laws singled out a person or class of persons within federal jurisdiction ! For example, a taxing statute, although it applied to other corporations as well as banks, did impose a special rate of tax on banks alone; yet the law was characterized as “in relation” to taxation, not banking (Bank of Toronto v. Lambe) ! EXCEPTION to the general rule that a provincial law of general application which is in relation to a provincial matter may validly affect federal matters as well. " if a provincial law is valid in the generality of its applications, but in effect impairs the status or essential powers of a federally-­‐ incorporated company, or to affect a vital part of a federally-­‐ regulated enterprise, it will not apply to the federally – incorporated company or federally regulated enterprise (c) Double aspect doctrine (or double matter) ! Some matters cannot be categorized under a single head of power (ie they may have both a provincial and federal aspect) o I.e-­‐ dangerous driving: punishment of a crime -­‐public order, criminal (federal) (s91(27); conduct on the roads= property and civil rights (provincial)(s92(13) o Gives rise to the possibility of conflict between a valid federal law and a valid provincial law. o Resolution of such conflicts in favour of the federal law is the function of the “federal paramountcy” ! Doctrine used in areas where judges show restraint. When both characteristics are roughly equal in importance (could be by both fed / prov) [Hogg] (d) Purpose ! Legislative purpose in characterizing the matter of an alleged law is important: Court will look beyond the legislative effect at the laws purpose (goals). ! In R. v. Big M Drug Mart (1985) the SCC held that federal Lord’s Day Act, which prohibited various commercial activities on Sundays, was a valid exercise of the !
federal Parliament’s power over criminal law (the Act was actually struck down for breach of the Charter of Rights) o Criminal character of the Act flowed from its purpose, which was the religious one of “the preservation of the sanctity of the Christian Sabbath”. (Determined via history and name of Act). o The court acknowledged that if the purpose of the statute had not been religious “but rather the secular goal of enforcing a uniform day of rest from labour” then the Act would have fallen under provincial rather then federal competence ! R v Edwards Books (purpose being secular, for rest of retail workers, falling under property and civil rights s92). ! To determine the purpose, courts can look to: o 1. The preamble o 2. The intention of the legislative body that drafted the statute o 3. The mischief that the law is trying to rid/correct ! BUT must look to true purpose, not necessarily the stated purpose (CANADIAN WESTERN BANK) (e) Effect ! In characterizing a statute-­‐ identifying its “matter” or “pith and substance”-­‐ a court will always consider the effect of the statute, in the sense that the court will consider how the statute changes the rights and liabilities of those who are subject to it (f) Efficacy ! In characterizing a statute for the purpose of judicial review on federal grounds, look at the purpose of the statute and the effects of the statute" however reviewing court should not pass judgment on the likely efficacy of the statute ! Re Firearms Act (2000): efficacy was a matter for Parliament, NOT the court: “Parliament is the judge of whether a measure is likely to achieve its intended purpose; efficaciousness is not relevant to the Court’s division of powers analysis” (g) Colourability doctrine (cloaking legislations real purpose) ! Invoked when a statute bears the formal trappings of a matter within jurisdiction but in reality is addressed to a matter outside jurisdiction ! Applies to the maxim, that a Legislature body cannot do indirectly what it cannot do directly ! Alberta Bank Taxation Reference-­‐ colourability is rarely successful o The legislation, although ostensibly designed as a taxation measure, was in reality directed at banking Page 13 of 86 An examination of the actual effect is useful in determining if the law was “colourable”. That is, whether the law, in substance, addresses a matter completely different from what the law addresses in form. ! For example, in R. v. Morgentaler the province of Nova Scotia passed a law prohibiting abortion clinics under the guise that it was protecting health services (hospitals 92.7 and property and civil rights 92.16), when in substance they were attempting to ban abortions (criminal-­‐ federal power) (h) Criteria of Choice ! When you have several possible dominant purposes (ie matter), how to choose which is the pith and substance? ! Can look at (i) legislative scheme/ relevant extrinsic material; (ii) judicial decisions on similar kinds of statutes; (iii) policy ! Policy: THE CHOICE MUST BE GUIDED BY A CONCEPT OF FEDERALISM-­‐ is this the kind of law that should be enacted at the federal level or provincial level? ! Judicial restraint must be invoked. (i) Presumption of Constitutionality ! Judicial restraint in determining the validity of statutes may be expressed in terms of a “presumption of constitutionality” ! burden is on those who would challenge the validity of a statute ! Carries 3 legal consequences: 1. In choosing between competin characterizations of a law, the court should normally choose that one that would support the validity of the law 2. Where the validity of a law requires a finding of fact (for example, the existence of an emergency), that finding of fact need not be proved strictly by the government; it is enough that there be a ‘rational basis’ for the finding 3. Where a law is open to both a narrow and a wide interpretation and under the wide interpretation the law’s application would extend beyond the powers of the enacting legislative, the court should “read down” the law as to confine it to those applications that are within the power of the enacting legislative body ! Where a law is challenged on Charter grounds, as opposed to federal grounds, rd
there is no presumption of constitutionality, except for the 3 doctrine, “reading down” which also applies in charter cases MITIGATION OF JUDICIAL REVIEW: (1) Severance ! The question arises whether the court should ‘sever” the bad part, thereby preserving the good part, or whether the court should declare the entire statute to be bad !
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A “severance clause” is a section of a statute that provides that if any part of the statute is judicially held to be unconstitutional, the remainder of the Act is to continue to be effective Rule that the courts have developed is that severance is inappropriate when the remaining good part “is so inextricably bound up with the part declared invalid that what remains cannot independently survive”; On the other hand, where the 2 parts can exist independently of each other, then severance is appropriate Privy council usually struck down the entire statute once an adverse conclusion has been reached as to the constitutionality of part Severance is more common in Charter cases than in federalism cases highly unusual that an entire statute is struck down under the Charter of Rights Only one Charter case where SCC struck down an entire statute: R v Big M Drug Mart (2) Reading Down ! A statute is to be interpreted more narrowly, when possible, as to keep it within the scope of the power of the enacting legislative body. ! General language in statute that can extend beyond the power of enacting legislature/parliament will be construed narrowly to keep it in scope. ! Only available when language can bare (valid) limited meaning and (invalid) extended meaning: limited meaning be selected. Consequences of Judicial Review: • Law which applies to matter outside of the jurisdiction of enacting body may be attacked in 3 ways: 1. Validity of law [matter or pith/subst comes in class of subjects outside jurisdiction of enacting body] 2. Applicability of law [valid in most applications but should be interpreted to not apply to the matter that is outside of its jurisdiction of enacting body] 3. Inoperative [argued through doctrine of Paramouncy, federal prevails] STEP 2: INTERPRETATION OF CONSTITUTION [POWERS] . (a) Relevance ! Once the matter (or pith and substance) of a challenged law has been nd
identified, the 2 stage in judicial review is to assign the matter to one of the “classes of subjects” (or heads of legislative power) specified in the Constitution (b) Exclusiveness ! Each list of classes of subjects in s. 91 or 92 of the Constitution Act, 1867 is exclusive to the Parliament or Legislature to which it is assigned Page 14 of 86 This means that a particular “matter” will come within a class of subjects on only one list ! Some laws are available to both levels, but that is because such laws have a double aspect (or 2 matters) [double aspect doctrine] not because subjects/classes overlap with each other. (c) Ancillary power ! Constitution of Canada does not include an ancillary power in the enumerated powers of either the federal Parliament or the provincial Legislatures. ! Definition in USA: “power to make all laws which are necessary for carrying into execution enumerated powers” ! The pith and substance doctrine enables a law that is classified as “in relation to” a matter within the competence of the enacting body to have incidental or ancillary effects on matters outside the competence of the enacting body ! if a certain provision of a larger statutory scheme is being challenged-­‐ you need to look at the ancillary doctrine o if the larger legislative scheme is valid, then the impugned provision may also be found to be valid because of its relationship to the larger scheme by way of this doctrine TEST: Measure the degree of infringement of the impugned provision on the other government’s sphere of power (the more significant the infringement, the more strict the test it), and then must determine how necessary the impugned provision is to the otherwise valid scheme: (i) For MINOR encroachments, the rational connection test is appropriate (ii) For MAJOR encroachments, a stricter test (“truly necessary”) is appropriate (General Motors v City National Leasing 1989) – Dickson CJ " HOGG: “test is not satisfactory, if a provision is rational/functional part of federal legislation why should it be regarded as ‘encroaching’ on provincial powers? Claims this approach creates unpredictability. Claims that the rational connection test is to be preferred to stricter alternatives (essential or necessary tests) because it is less strict. Liberal test respects limits imposed by constitutions distribution of powers. (d) Concurrency (happening together) – exceptions to exclusiveness of powers ! There are 3 provisions that explicitly confer concurrent powers: 1. s 92(A) of Constitution Act 1867 (added in 1982) natural resources (provincial) power is concurrent with the federal Parliament’s trade and commerce power 2. S 94(A)-­‐ old age pensions and supplementary benefits (federal) concurrent with acknowledgement of provincial existence 3. S 95 -­‐concurrent powers over agriculture and immigration !
(e) Exhaustiveness ! The distribution of powers between the federal Parliament and the provincial Legislatures is exhaustive ! There are exceptions to the doctrine of exhaustive distribution, including the subjects protected by the Charter of Rights ! Any matter which does not come within any of the specific classes of subjects will be: o Provincial if " it is merely local or private (s 92(16)) and will be o Federal if " it has a national dimension (s 91, opening words). (s 91 gives the federal Parliament the residuary power “to make laws for the peace, order, and good government of Canada, anything not exclusively assigned to the Legislatures of the Provinces”) ! Saumur v Quebec: articulated this doctrine as one reason for striking down a municipal by law that forbade the distribution of literature on the streets of Quebec City without the permission of the chief of police o The absence of any standards in the by-­‐law to guide the chief of police’s discretion was by itself fatal to the validity of the by-­‐law. Without more precision in the drafting of the by-­‐law, it was impossible to classify it as in relation to any particular matter (f) Progressive interpretation [words not always defined as they were in 1867] ! The words of the act are to be given a “progressive interpretation”, so that they are continuously adapted to new conditions and new ideas ! Same-­‐Sex Marriage Reference 2004: the court said the constitution “is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life” ! The idea that Constitution Act 1867, is a “constituent” or “organic” statute, which has to provide the basis for the entire government of a nation over a long period of time. It is not an ordinary statute – which is more restrictive to interpretation. (g) Unwritten constitutional principles ! Even if the world remained the same, the courts would still have to apply the text to unpredictable human and institutional behavior ! The Constitution of Canada is constructed on a set of unwritten or implicit principles that have profoundly influenced the drafting of the text and that continue to influence its interpretation ! Democracy, the rule of law, the independence of the judiciary, the protection of civil liberties and federalism are among those principles ! i.e. Succession Reference example. Or RE Remuneration of Judges. Page 15 of 86 Interjurisdictional Immunity (‘IJI’) (2nd doctrine of federalism) ! Another way (alternative to the pith and substance) of attacking a law is by characterizing the law as coming within a class of subjects that is outside the jurisdiction of the enacting legislative body, and to argue that the law should be INTERPRETED (ie read down) so as not to apply to the matter that is outside the jurisdiction of the enacting body. If this argument succeeds, the law isn’t invalid, but is simply INAPPLICABLE to the extra-­‐ jurisdictional matter (a) Definition of Interjurisdictional Immunity ! Does not have a precise meaning ! A law that purports to apply to a matter outside the jurisdiction of the enacting legislative body may be attacked in 3 different ways: 1. The validity of the law ! Argue that the law is invalid, because the matter of the law (or its pith and substance) comes within a class of subjects that is outside the jurisdiction 2. The applicability of the law ! to acknowledge that the law is valid in most of its applications, but to argue that the law should be interpreted so as not to apply to the matter that is outside the jurisdiction of the enacting body ! If this arguments succeeds, the law is no held to be invalid, but simply INAPPLICABLE to the extra-­‐jurisdictional matter ! The technique for limiting the application of the law to matters within jurisdiction is the reading down doctrine 3. The operability of the law ! Argue that the law is INOPERATIVE through the doctrine of paramountcy ! Doctrine of paramountcy: where there are inconsistent federal and provincial laws, it is the federal law that prevails; paramountcy renders the provincial law inoperative to the extent of the inconsistency ! Paramouncty is a form of attack available only against a provincial law, and then only when there is a conflicting federal law in existence (b) Rationale of Interjurisdictional Immunity ! Interjurisdictional immunity cases do not concern provincial laws that single out federal undertakings, works, persons or services for special treatment ! In CANADIAN WESTERN BANK the SC accepted Beetz J’s rationale for the interjurisdictional immunity doctrine, and in particular the need to protect a “basic, minimum and unassailable” core of each head of legislative power, rooted in the exclusivity of each head of power in ss. 91 and 92 of the Constitution Act 1867 o However, the MAJORITY narrowed the doctrine by insisting that, if a provincial law merely affected (without having an adverse effect on) the core of a federal subject, then the doctrine did not apply. In that case the pith and substance doctrine would prevail, enabling the provincial law to apply to the core of the federal subject = [this is the NEWEST TEST] o Only if the provincial law would “impair” the core of the federal subject, would interjurisdictional immunity apply. o The majority indicated a strong preference for the pith and substance doctrine as the default position when otherwise valid provincial laws intruded into federal matters. This was on the basis that “a court should favour, where possible, the ordinary application of statutes enacted by both levels of government. o interjurisdictional immunity should be applied “with restraint” (c) Provincial subjects ! The doctrine of interjurisdictional immunity ought to be reciprocal, protecting provincial subjects from incursion by federal laws. This is because provincial heads of power in s 92 of the Constitution Act 1867 are just as exclusive as the federal heads in s 91 # Distinguish between pith and substance analysis and interjurisdictional immunity # The latter is used sparingly by courts; should normally rely on pith and substance analysis REQUIRED CASES FOR PRINCIPLES OF INTERPRETATION: CANADIAN WESTERN BANK v. ALBERTA [2007] FACTS: •
AB enacted changes to Insurance Act making federal banks subject to provincial licensing schemes via promotion of insurance products. •
Banks argued: 1) their promotion of insurance via the Bank Act was “banking” in s91(15) CA1867. AND 2) The Insurance Act were inapplicable by virtue of doctrine of IJI and Paramouncy. ISSUE: •
What extent to which banks, as federally regulated financial institutions, must comply with provincial laws regulating the promotion and sale of insurance. HELD: •
Insurance Act = valid exercise of provincial powers under s92(13) as within property and civil rights. •
Interjurisdictional immunity fails because insurance is not “at the core” of banking, it is not vital or essential element of the banking undertaking, and •
Federal Paramouncy does not apply because there is no operational conflict between federal and provincial law. Page 16 of 86 REASONING: Federalism ! Constitutional doctrines permit an appropriate balance to be struck in the recognition and management of the inevitable overlaps in rules made at the two levels of legislative power, while recognizing the need to preserve sufficient predictability in the operation of the division of powers Assessing the constitutionality of legislation: [legal challenges to legislation follow these steps: 1. Pith and substance of the provincial law and the federal law should be examined to ensure that they are both valid and to determine the overlap, if any, between them. 2. The applicability of the provincial law to the federal undertaking or matter in question must be resolved with reference to the doctrine of interjurisdictional immunity. 3. If both the provincial law and the federal law have been found to be valid, and only if the provincial law is found to be applicable to the federal matter, then both statutes must be compared to determine whether the overlap between them constitutes a conflict sufficient to trigger the application of the doctrine of federal paramountcy. Pith and Substance Doctrine: • The resolution of a case involving the constitutionality of legislation in relation to the division of powers must begin with an analysis of the pith and substance of the impugned legislation. The courts must be able from its language and its relevant circumstances, to attribute an enactment to a matter in relation to which the legislature acting has been empowered to make laws. • Legislation whose pith and substance falls within its jurisdiction may affect matters beyond the jurisdiction without necessarily being unconstitutional. At this stage of the analysis, the dominant purpose of the legislation is still decisive. • Merely incidental effects do not disturb the constitutionality of otherwise intra vires law. ! STEPS: To determine the pith and substance: (1) The PURPOSE of the enacting body: Can look to intrinsic evidence (e.g. preamble/purpose clauses, and extrinsic evidence). Must look to TRUE PURPOSE though, not necessarily the stated purpose (2) The LEGAL EFFECT of the law: E.g., in Attorney-­‐General for Alberta v. Attorney-­‐
General for Canada, [1939] the Privy Council held a provincial statute levying a tax on banks to be invalid on the basis that its effects on banks were so great that its true purpose could not be (as the province argued) the raising of money by levying a tax (in which case it would have been intra vires), but was rather the regulation of banking (which rendered it ultra vires, and thus invalid) ! Here, the pith and substance of the Alberta Insurance Act relates to property and civil rights in the province under s. 92(13) of the Constitution Act, 1867, and is a valid provincial law. The mere fact that the banks now participate in the promotion of insurance does not change the essential nature of the insurance activity, which remains a matter generally falling within provincial jurisdiction The Double Aspect Doctrine: • The double aspect doctrine applies within the course of the pith and substance analysis. It recognizes that both Parliament and the provincial legislatures can adopt valid legislation on a single subject depending on the perspective from which the legislation is considered, that is, depending on the various “aspects” of the “matter” in question. !
In certain circumstances, the powers of one level of government must be protected against intrusions, even incidental ones, by the other level. For this purpose, the courts have developed two doctrines: [a] Interjurisdictional Immunity doctrine: o Interjurisdictional immunity, recognizes that our Constitution is based on an allocation of exclusive powers to both levels of government, not concurrent powers, although these powers are bound to interact in the realities of the life of our Constitution. o However, a view of federalism that puts greater emphasis on the legitimate interplay between federal and provincial powers was championed by the late Chief Justice Dickson, who described the doctrine of interjurisdictional immunity as “not . . . particularly compelling. In our view, the sweeping immunity argued for by the banks in this appeal is not acceptable in the Canadian federal structure. o The Court identifies a number of problems with invoking the doctrine !
Broad use of the doctrine would be inconsistent with the flexible federalism that the constitutional doctrines of pith and substance, double aspect and federal paramountcy are designed to promote. Must recognize that overlapping powers are unavoidable !
A broad use of the doctrine of interjurisdictional immunity runs the risk of creating an unintentional centralizing tendency in constitutional interpretation. The “asymmetrical” application of interjurisdictional immunity is incompatible with the flexibility and co-­‐ordination required by contemporary Canadian federalism o Interjurisdictional immunity should in general be reserved for situations already covered by precedent. The Doctrine of Federal Paramountcy: !
Federal paramountcy = when the operational effects of provincial legislation are incompatible with federal legislation, the federal legislation must prevail and the provincial legislation is rendered inoperative to the extent of the incompatibility. !
The doctrine of federal paramountcy is also inapplicable because neither operational incompatibility nor the frustration of a federal purpose have been made out. !
Since 2000, the banks have been promoting insurance in Alberta while complying with both the federal Bank Act and the provincial Insurance Act. This is not a case where the provincial law prohibits what the federal law permits. The federal legislation is permissive not exhaustive, and compliance by the banks with the provincial law complements, not frustrates, the federal purpose Page 17 of 86 QUEBEC (AG ) v. CANADIAN OWNERS AND PILOTS ASSOCIATION [2010] FACTS: COURTS: R v MORGENTALER, [1993] – not the 1998 SCC decision. FACTS: Morgentaler challenged the constitutionality of a Nova Scotia law prohibiting the performance of abortions outside of a hospital on the grounds that it was ultra vires. Also claimed violate s7 life liberty security of women. An aerodrome, registered under the federal Aeronautics Act, was constructed on land zoned as agricultural (s92) in the province of Quebec. Since the Prov Commission’s permission was not obtained prior to constructing the aerodrome, the Commission ordered the return of the land to its original state. The Commission’s decision was challenged on the ground that aeronautics is within federal jurisdiction & not agriculture. ISSUE: The Admin Tribunal of Quebec, the Court of Quebec and the Superior Court of Quebec all upheld the Commission's decision, but the Quebec COA found that interjurisdictional immunity precluded the Commission from ordering the dismantling of the aerodrome. ARGUES: HELD: The appeal was dismissed – agreed with COA. 1. Provincial laws designating agricultural land were in pith and substance intra vires provincial jurisdiction, by virtue of ss. 92(13), (16) and 95 2. But, its incidental effects of its application impaired the “core” of the federal jurisdiction over aeronautics under POGG [ability to determine location] 3. Provincial law was deemed inapplicable by virtue of doctrine of Interjurisdictional immunity, under a two-­‐part test that was stated by McLachlin CJ: st
1 step Is to determine whether the provincial law ... trenches on the protected “core” of a federal competence. If It does… nd
2 step is to determine whether the provincial law’s effect on the exercise of the protected federal power is sufficiently serious to invoke the doctrine of interjurisdictional immunity. !
While ARPALAA is valid provincial legislation, it is inapplicable to the extent that it impacts the federal power over aeronautics. The federal aeronautics jurisdiction encompasses not only the regulation of the operation of aircraft and airports, but also the power to determine the location of airports and aerodromes. This power is essential to aeronautics and lies in core of federal aeronautic residual powers. !
In those cases where the doctrine applies, it serves to protect the immunized core of federal power from any provincial impairment. The doctrine of paramountcy would permit Parliament to legislatively override provincial zoning legislation for the purpose of establishing aerodromes !
The doctrine of federal paramountcy would not apply in this case !
Here, there was no operational conflict, since the federal legislation did not require the construction of an aerodrome and it is possible to comply with both the provincial and federal legislation by demolishing the aerodrome. !
There was also no evidence establishing that a federal purpose regarding the location of aerodromes was frustrated by the provincial legislation. [1] Is the Nova Scotia Medical Services Act and the regulation made under the act ultra vires the province of Nova Scotia on the grounds that they are in pith and substance criminal law? YES [2] Whether s251 violates rights (s7 – life liberty) guaranteed by the Charter? If so, is it justifiable under s1 of the Charter? Nova Scotia argues that the regulation deals with hospitals, health, and the medical profession, which is within provincial jurisdiction. Morgentaler argues that the regulation is in pith and substance related to crim law. REASONS: Sopinka J •
The province is limited to legislating with regards to the heads of power outlined in s.92. •
Classification of a law for purposes of federalism involve first identifying the matter of the law (as evidenced by it’s purpose, legal and practical effects), and then assigning it to one of the classes of subjects in respect to which the federal and provincial governments have legislative authority under ss. 9 & 92 of the constitution act. •
Example of a colourable law: The court determined that the legislation on its face addresses matters that are within its jurisdiction, but are in pith and substance directed at matters outside its jurisdiction SCC DECISION: 1998 (not relevant for federal question) Dickson J Section 251 of the Criminal Code did violate section 7 of the Charter. •
S251 violated in two ways: (1) disallowing women from access to safe medical procedure unless they meet criteria that is not their own. (2) Women must go through process to meet criteria, causing delays and increased mortality rates and psychological impact. Claimed this was breach of fundamental justice. •
Held that it was not proportionate as per s1 test. REASONS: Dissent (McIntyre & La Forest) •
S251 not violate charter s7. The Court did not have the exclusive right to decide the substance of s. 7 (what rights the section protects.). Further, no positive right of abortion is found in Canada. Historically clear right to protect feotus – which was the purpose of s251. •
McIntyre concluded that s. 251 was within federal jurisdiction. He agreed with the Ontario Court of Appeal that the challenged legislation was not for the protection of health and therefore it was not within provincial competence in such a way as to preclude federal legislation. Page 18 of 86 [2] Paramountcy (3rd Doctrine of Federalism) Problem of Inconsistency ! Doctrine of implied repeal: where there are 2 inconsistent (or conflicting) statutes the later is deemed be have impliedly repealed the earlier [UK] ! The doctrine applies in Canada to resolve conflicts between laws enacted by the same legislative body. But in a federal system there is also the possibility of conflict between the statutes of different legislative bodies within federation. ! Doctrine of implied repeal is of no help in resolving a federal-­‐ provincial conflict because neither the federal Parliament nor a provincial Legislature has the power to repeal either expressly or impliedly each other’s laws ! RULE that has been adopted by the courts is the doctrine of “federal paramountcy”: where there are inconsistent (or conflicting) federal and provincial laws, it is the federal law which prevails Applies where there is a fed/prov law are (1) each valid, and (2) inconsistent ! Validity depends upon: does the “matter” (or pith and substance) of the law come within the “classes of subjects” (or heads of power) allocated to the enacting Parliament or Legislature? If one law fails this test, then the problem is resolved without recourse to the doctrine of paramountcy ! It is only if each law independently passes the test of validity that it is necessary to determine whether the laws are inconsistent nd
2 Requirement: Definition of Inconsistency (or conflicting) Wide definition " result in defeat of provincial laws in ‘fields’ covered by federal law [seen as judicial activism] Narrow definition " allow provincial laws to survive so long as they don’t expressly contradict fed law [seen as judicial restraint] Express Contradiction = one law expressly contradicts the other ! Only express contradiction suffices to invoke the paramountcy doctrine (a) Impossibility of dual compliance o For laws which directly regulate conduct, an express contradiction occurs when it is impossible for a person to obey both laws o Example-­‐ where a federal law stipulates that Japanese citizens in Canada are to be afforded the same employment opportunities as Canadian citizens, and a provincial law stipulates that Japanese are not to be employed in the mines, another express contradiction occurs (b) Frustration of federal purpose = provincial law frustrates the purpose of federal ! Where there are overlapping federal and provincial laws, and it is possible to comply with both laws , but the effect of the provincial law would be to frustrate the purpose of the federal law, that is also a case of inconsistency ! Step: determine purpose of federal, and effect of provincial on federal law. ! ROTHMAN, BENSON & HEDGES INC v SASKATCHEWAN 2005: • Tobacco Act (federal) prohibited the promotion of tobacco, except as expressly authorized, and permitted retailers to display tobacco and post signs indicating availability/price • Tobacco Control Act (Saskatchewan) banned all advertising, displays and promotions of tobacco in any premises in which persons under 18 years are permitted, including retail stores • This meant that a retailer could comply with both laws, either by refusing to admit persons under 18 or by not displaying tobacco products • Court held: that the provincial law did not frustrate the purpose (national health) of the federal law, and therefore, was not rendered inoperative by paramountcy Negative Implication (a) Covering the field [Prov law supplements or duplicates Fed, inapplicable? No] ! Narrow interpretation of paramountcy led to rejection of the ‘covering the field method’: a federal law may be interpreted as covering the field and precluding any provincial laws in that field, even if they are not contradictory of the federal. In Canada, this has been rejected (O’Grady v Sparling) (b) Express extension of paramountcy ! Can, for example, Parliament extend the doctrine of paramountcy beyond the case of an actual conflict in operation? Yes. Overlap and Duplication (a) Constitutional significance ! Argument against duplication of federal and provincial laws can have little weight once overlapping is admitted ! Duplication is not a test of inconsistency (Multiple Access Case) (b) Double criminal liability ! The existence of overlapping or duplicative penal provisions raises the possibility that a person may be liable to conviction under both a federal law and a provincial law for the same conduct ! There is nothing in paramountcy doctrine which precludes multiple prosecutions or convictions under federal and provincial laws (c) Double civil liability Page 19 of 86 Double civil liability is also a possibility under overlapping or duplicative federal and provincial laws ! Like the possibility of double criminal liability, the issue of double civil liability did not need to be resolved by the doctrine of paramountcy Effect of Inconsistency ! Once it has been determined that a federal law is inconsistent with a provincial law, the doctrine of federal paramountcy stipulates that the provincial law must yield to the federal law ! Most accurate way of describing the effect on the provincial law is to say that it is rendered inoperative to the extent of inconsistency ! Notice that the paramountcy doctrine applies only to the extent of the inconsistency o The doctrine will not affect the operation of those parts of the provincial law which are not inconsistent with the federal law, unless the inconsistent parts are inseparably linked up with the consistent parts ! Temporal limitation on the paramountcy doctrine. It will affect the operation of the provincial law only so long as the inconsistent federal law is in force. o If the federal law is repealed, the provincial law will automatically “revive” (come back into operation) without any reenactment by the provincial Legislature Paramountcy Argument: ! The doctrine of federal paramountcy dictates that where there is an inconsistency b/w validly enacted but overlapping provincial and federal legislation, the provincial legislation is inoperative to the extent of the inconsistency. ! Provincial legislation that displaces or frustrates Parliament’s legislative purpose is also inconsistent for the purposes of the doctrine. !
(a) Impossibility of a Dual Compliance? Nope !
It is plain that dual compliance is possible in this case. A retailer can easily comply with both s. 30 of the Tobacco Act and s. 6 of The Tobacco Control Act in one of two ways: by admitting no one under 18 years of age on to the premises or by not displaying tobacco or tobacco-­‐related products. !
For an impossibility of dual compliance to exist, s. 30 of the Tobacco Act would have to require retailers to do what s. 6 of The Tobacco Control Act prohibits—i.e., to display tobacco or tobacco-­‐related products to young persons. (b) Frustration of Legislative Purpose? ! Section 6 of the Tobacco Control Act does NOT frustrate the legislative purpose underlying s 30 of the federal Act. Both the general purpose of the Tobacco Act (to address a national public health problem) and the specific purpose of s. 30 (to circumscribe the Tobacco Act’s general prohibition on promotion of tobacco products set out in s. 19) remain fulfilled REQUIRED CASES FOR PARAMOUNTCY . ROTHMANS, BENSON & HEDGES INC. v SASKATCHEWAN 2005 FACTS: Respondent of company sought a declaration that s. 6 of the Saskatchewan Tobacco Control Act is, by virtue of the paramountcy doctrine is inoperative in light of s. 30 of the federal Tobacco Act. Section 30 allows retailers to display tobacco and signs indicating the availability and price of tobacco, while s. 6 bans all advertising, display of tobacco-­‐related products in any premises in which persons under 18 years of age are permitted. ISSUE: Whether s. 6 of The Tobacco Control Act is sufficiently inconsistent with s. 30 of the Tobacco Act so as to be rendered inoperative through the paramountcy doctrine. 2 questions arise: 1. can a person simultaneously comply with s. 6 of The Tobacco Control Act and s. 30 of the Tobacco Act? 2. does s. 6 of The Tobacco Control Act frustrate Parliament’s purpose in enacting s. 30 of the Tobacco Act? HELD: The doctrine of paramountcy does not apply. Therefore: There is no inconsistency between s. 6 of The Tobacco Control Act and s. 30 of the Tobacco Act that would render the former inoperative pursuant to the doctrine of federal legislative paramountcy Page 20 of 86 [3] Property & Civil Rights – CONSTITUTION ACT, 1867 S 92(13) Regulating Business in General: !
Importance of Property and Civil Rights ! S 92(13), Constitution Act 1867 confers upon the provincial Legislatures the power to make laws in relation to “property and civil rights in the province” ! The law relating to property, succession, the family, contracts and torts is mainly within provincial jurisdiction under s 92(13) ! HOGG: the most important of the provincial heads of power ! Distinct from civil liberties ! Civil rights referred to in the Constitution Act 1867 comprise primarily proprietary, contractual or tortious rights; these rights exist when a legal rule stipulates that in certain circumstances one person is entitled to something from another ! But civil liberties exist when there is an absence of legal rules: whatever is not forbidden is a civil liberty (as per USA). Insurance [not specifically characterized in s91/92] B/c of unequal field b/w insurers " insured, governments regulated early on. (a) Provincial power ! Leading Case-­‐ CITIZENS’ INSURANCE CO. v. PARSONS (1881): o Privy Council upheld an Ontario statute which required that certain conditions be included in every policy of fire insurance entered into in Ontario: regulation of the terms of contracts came within property and civil rights in the province (s92(13), and did not come within trade and commerce (s91(2) ! Leading Case: RE INSURANCE REFERENCE: o Fed statute prohibiting company from insuring unless licensed by Fed minister of Finance. Federal gov’t argued it was trade and commerce s91. o The regulation of a particular industry comes within property and civil rights in the province, even when the industry and particular firms extended beyond the boundaries of any one province (Insurance Reference; Parsons) (b) Federal power ! Despite all these setbacks in the courts, the federal government continues to regulate a substantial part of the insurance industry under statutes covering British and foreign companies, federally-­‐ incorporated companies and, on a voluntary basis, provincially-­‐ incorporated companies ! Current federal statutes includes preambles which include that the powers over trade and commerce, aliens and insolvency are relied upon as supporting their constitutionality The insurance cases discussed established the proposition that the regulation of business was ordinarily a matter within property and civil rights in the province EXCEPTIONS to this proposition: o Some industries fall within federal jurisdiction because they are enumerated in s s.91, such as navigation and shipping (s91(10)) and banking (s91(15)), or because they are excepted from s 92(10), namely, interprovincial or international transportation and communications undertakings (s92(10)(a) and (b) and works declared to be for the general advantage of Canada (s. 92(10)(c) o Some industries have been held to fall within federal jurisdiction under the peace, order, and good government power, namely, aeronautics and the production of atomic energy o Other federal powers confer a limited power to regulate business, for example, trade and commerce (s91(2)), taxation (s91(3)), interest (s91(19)), the criminal law (s91(27)) and peace, order and good government (s91 opening words) ! The gaps in federal power are very important and extensive: ie.: the trade and commerce power will authorize: o A federal prohibition of the importation of margarine, but not a prohibition of its manufacture or sale; o The interest power may be used to control interest rates, but not other terms of loans. o Trade Commerce regulates interprovincial marketing but not local. o The gaps in federal power are covered by the provincial power over property and civil rights ! The point is that the regulation of an industry, or the more general regulation of prices or profits or combinations, has traditionally been regarded by the courts, not in terms of its ultimate, often nation-­‐ wide objectives, but in terms of its immediate impact upon freedom of contract and property rights. In these terms, of course, restraints on business fall into the category of property and civil rights in the province Regulating Professions and Trade: provincial property/civil rights ! Regulations of professions and trade typically take the form of restrictions on entry, coupled with rules of conduct, which often include fee-­‐ setting, and administration by a governing body. Such regulations is no different for constitutional purposes than that of other industries, and comes within property and civil rights in the province Page 21 of 86 Labour Relations (a) Provincial power ! Regulation of labour relations over most of the economy is within provincial competence under property and civil rights in the province (Toronto Electric-­‐ Snider leading case) o Industrial peace (e.g. prevention of strikes, lockouts) falls within property and civil rights. Here the federal act required certain procedures for settling disputes in all areas – including provincial areas. Held unconstitutional ! Laws imposing labour standards came within property and civil rights in the province. ! Other decisions, such as Unemployment Insurance Reference; Oil, Chemical Workers, insist that the modification of the employment relationship is exclusively within property and civil rights, notwithstanding the important federal aspects presented by the relief of nation-­‐ wide unemployment (b) Federal power ! Despite affirmations of provincial power over labour relations, there is still a substantial federal presence in the field. After Toronto Electric-­‐ Snider, changed act to specify any industry covered under Federal power. ! Federal Parliament could regulate labour relations in those industries which are within federal legislative competence (whether in the public or private sector) o Stevedores Reference: SCC held that the federal law was valid and that it was applicable to the stevedores because their work of loading and unloading ships was an essential part of navigation and shipping o Since this decision it’s clear that the federal Parliament has the power to regulate employment in works, undertakings or businesses within the legislative authority of the federal Parliament ! The fact that employees are engaged in constructing a runway at an airport will not sweep them into federal jurisdiction, if their work is simply construction, unrelated to the tasks of design or operation that would be an integral part of aeronautics. Same goes for hotel (Empress Case) that is not connected to railway services. ! The Court approaches these cases on the basis that provincial competence over labour relation is the RULE, and federal competence is the EXCEPTON o Federal competence exists only where it is found that the work performed by the employees is an integral part of an undertaking within federal jurisdiction, and that finding depends upon “legislative authority over the operation, not over the person of the employer” Marketing [reason for regulate: interests consumers, quality, inspection] (a) Federal power ! Early attempts by the federal Parliament to enact marketing schemes under the trade and commerce power (s.91(2)) were struck down by the Privy Council-­‐ strong presumption that any interference with contracts was a matter within property and civil rights in the province ! But the Canadian courts have interpreted the trade and commerce power more liberally in recent times. Eg. Trans-­‐Canada/provincial oil regulation. (b) Provincial power ! Contracts of sale and purchase are prima facie matters within “property and civil rights in the province & therefore amenable to province legislation ! There is no doubt that under s92(13) the provinces have the power to regulate INTERPROVINCIAL TRADE: ! The question is: to what extent should a province be permitted to burden INTERprovincial trade in the course of regulating INTRAprovincial trade? (i) Shannon v. Lower Mainland Dairy Products Board (1938): Provincial scheme for compulsory marketing of milk upheld and applied to milk sold in province, including milk made OUTSIDE province. That decision was followed by Carnation Co v Quebec, which decided that, if the marketing law merely AFFECTS interprovincial trade, that doesn’t mean the law is invalid (in this case, Carnation shipped the bulk of its product outside the province, and the SCC nevertheless held that the marketing law was “in relation to” intraprovincial trade) (ii) Manitoba Egg Reference (1971): SCC struck down a provincial scheme to regulate the marketing of eggs. The scheme applied to all eggs sold in Manitoba, including eggs produced elsewhere. Court said that statute regulated marketing and not only affected interprovincial trade, but it AIMED at regulating such trade and so it was invalid as an attempt to regulate such trade (Hogg thinks this is an odd case and difficult to see why it didn’t follow Shannon) (iii) Re Agricultural Products Marketing Act (1978): Upheld scheme regulating national marketing of eggs (which included federal and provincial acts). SCC upheld the scheme, and held that the provincial statute could impose production quotas on all producers irrespective of the destination of their output (this part is important). When the law is aimed at conservation purposes, Spooner Oils (1933): there is NO doubt that the province has power. Province has power over conserving lands. Page 22 of 86 Securities Regulation (a) Provincial power ! Province have the power to regulate the trade in corporate securities. This is a matter within property and civil rights in the province ! Provinces have regulatory regimes which establish securities commissions, and which provide for the licensing of brokers and the regulation of the market for corporate securities ! One exception to the generality of provincial power over the securities industry: province has no power to confer upon a provincial agency discretionary power over the issue of securities by a federally-­‐ incorporated company, because the capacity to raise capital is an essential attribute of corporate status !
See Reference Re Securities Act (2011) below Property (a) General ! Creation of property rights, their transfer and their general characteristic are within property and civil rights in the province. Thus, the law of real personal property and all its various derivatives, such as landlord and tenant, trusts and wills, succession on intestacy, conveyancing and land use planning are within provincial power ! Difficulty has arisen in cases where a province has sought to control the ownership or use of property in order to accomplish a non-­‐ proprietary (exclusive) objective which it could not accomplish by more direct means: Switzman v Elbling: a provincial law which prohibited the use of a house to propagate communism was characterized as either a criminal law or law in relation to speech, not property Bedard v Dawson: a provincial law which prohibited the use of a house as a “disorderly house” was characterized as a property law, and not as a mere supplement to Criminal Code offences in respect of disorderly houses” (b) Foreign ownership ! The question whether a province can control foreign ownership of land was litigated in Morgan v A-­‐G P.E.I in which the SCC upheld a statute of P.E.I which provided that “no person who is not a resident of the province” could acquire holdings of real property of more than a specified size except within the permission of the provincial cabinet. o The qualification for unrestricted landholding was residence, not citizenship, and so the prohibition applied to non-­‐ resident citizens as well as non-­‐ resident aliens (c) Heritage property ! In Kitkatla Band v. British Columbia (2002), the SCC held that the protection of heritage or cultural property was within provincial jurisdiction under property and civil rights in the province (s92(13) Consumer Protection: •
•
•
Many cases above deal with consumer protection. Demonstrates that most of it is under provincial property civil rights: for example, provincial restrictions on advertising to children referenced “in relation to consumer protection (Irwin T) The phrase ‘consumer protection’ is too broad and vague to serve as a ‘matter’ for the purposes of the federal distribution of powers. It must be broken down into smaller more distinct concepts before placed in correct constitutional slot. Summary of Principles (1) The regulation of a particular industry or business falls within the property and civil rights power (Insurance Reference; Parsons) (2) The regulation of contracts falls under the property and civil rights power (Parsons) (3) The regulation of labour relations, as a general rule, falls within the property and civil rights power (Toronto Electric etc), although federal government can regulate labour relations which are a required part of a federal undertaking) (Stevedores Reference etc) (4) The regulation of INTRAprovincial trade falls within the property and civil rights power, even though it may have interprovincial effects (Shannon v Lower Mainland Dairy); to be valid, however, the legislation cannot be aimed at regulating interprovincial marketing (Manitoba Egg Reference). But the provinces can regulate production schemes, regardless of whether the output is interprovincial (since that is generally a provincial matter) (Re Agricultural Products), so long as the majority of the product is not being exported (Central Canada Potash) (5) Where production controls are imposed for physical conservation purposes, then the matter falls within the property and civil rights power (Spooner Oils) (6) The creation of property rights, their transfer and general characteristics are normally within the property and civil rights power. Where a province seeks to control ownership or usage of property in order to accomplish a NON proprietary objective, then there is a concern that it might be trampling on another head of power (e.g. criminal law) (e.g. Switzman) Page 23 of 86 REQUIRED CASES FOR PROPERTY & CIVIL RIGHTS CITIZENS’ INSURANCE CO. v. PARSONS [1881] FACTS: Citizens Insurance, a federally incorporated company, did not comply with provincial legislation to print variations in the provincial standard in conspicuous type, which resulted in Parson’s failing to disclose information, which in turn made his insurance claim invalid. ARGUEMENTS: • Insurance Company: As a federally regulated company, they should only be regulated by trade and commerce legislation, a federal head of power • Parsons: Legislation falls within “Property/Civil,” a provincial head of power ISSUE: Was the provincial legislation ultra vires, making Parson’s failed claim illegitimate? NO REASONING: ! The Act was NOT ultravires the power of the enacting government. The act regulated contracts, and contracts falls under the head of property and civil rights. There are two important ratios to note about this case: 1) There is a limitation on s. 91(2): s. 91(2), dealing with trade and commerce, is limited to the following areas: • International Trade and Interprovincial Trade; and • Regulation of Trade affecting whole Dominion o These are referred to as the two branches of the trade and commerce power (discussed below) o Section 91(2) should not be read to include the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance in a single province 2) Provinces Can Regulate Contracts: Provincial legislatures have the jurisdiction to regulate contracts of a particular business or trade as long as it is within the province (including the ability to limit and control the manner in which the property may be dealt with, including the terms and conditions of the contracts) RATIO: There can be no overlap between areas of jurisdiction, meaning that heads of power must be mutually modified to prevent overlap. HELD: Appeal was dismissed (legislation was intra vires). Feds do not have the authority to regulate the contracts of a specific trade, and thus its authority does not conflict or compete with 92(13) provincial civil /property rights. REFERENCE RE SECURITIES ACT 2011 FACTS: Canada (Federal) proposed to pass a law to nationally regulate the Canadian securities industry. (via central authority). Historically is solely regulated by provincial and territorial governments. ISSUE: At issue was the question of whether the regulation of the securities industry is a valid exercise of the federal trade and commerce power? NO ARGUE: Arguments focused on the applicability of the five criteria for such an analysis that were previously identified in General Motors of Canada Ltd. v. City National Leasing. Federal Govt argued this is of national concern. HELD: Proposed Act is not valid under the general branch of the federal power to regulate trade and commerce. It focused on the day-­‐to-­‐day regulation of all aspects of contracts for securities within the provinces, including all aspects of public protection and professional competences. Therefore the Pith and substance of securities industry regulation is a matter of property and civil rights • Proposed Act overreaches genuine national concerns. Yet, does not justify a wholesale takeover of the regulation of the securities industry, which is the ultimate consequence of the proposed federal legislation. • Adopted Parsons reasoning (ie, limit scope of trade and commerce power to avoid draining provincial powers over civil law). Federalism demands that a balance be struck, a balance that allows both the federal Parliament and the provincial legislatures to act effectively in their respective spheres o Held that proposed law did not meet the last 3 General Motors criteria for the “general” trade and commerce power : ! Concerned with a particular industry (not trade as a whole) ! The provinces are capable of regulating the industry, and ! Exclusion of some provinces from the regulatory scheme will not undermine its operation Page 24 of 86 CHATTERJEE V ONTARIO (ATTORNEY GENERAL), 2009 SCC FACTS: Chatterjee was stopped for license plate infraction and car was searched. He was arrested in Ontario for breach of bail for having 29,900 cash and grow op equipment. Police seized money under Ontario law, “proceeds or instruments of unlawful activity.” Though never charged with any offence related to search. ARGUE: Chatterjee claims that the province did not have the power to enact the law. His point was that the law provides for the forfeiture of proceeds of federal criminal offences and the federal Parliament, not the provinces, has jurisdiction to make criminal law. HELD: SCC " valid provincial law. Pith and Substance: • Court looked at the purpose clause and the debates before its enactment, and concluded that its purpose is to use the proceeds of crime to compensate victims and the public for the costs associated with criminal activity • In terms of effects, the law allows to the province to seize property that is tainted by crime Division of Powers: • The Court concluded that the law focuses on property and the effects of crime, rather than adding additional penalties to federal crimes • Proceeds-­‐of-­‐crime law has both provincial and federal aspects. It falls under the provincial power over “property and civil rights” and “matters of a merely local and private nature.” As well, it has a federal aspect as it touches upon criminal law. o Court stated that the criminal law aspect is acceptable because the law is primarily concerned with property and the effects of crime. • The only potential problem with the law would be if it interfered with the forfeiture provisions in the Criminal Code • If the Ontario law interfered with the operation of the federal law, the doctrine of paramountcy would render the Ontario law inoperative to the extent that it interferes. Page 25 of 86 [4] Trade & Commerce CONSTITUTION ACT, 1867, S 91(2) General / Intro: T&C: !
Section 91(2), Constitution Act 1867 confers upon the federal Parliament the power to make laws in relation to “the regulation of trade and commerce” !
S91(2) should be limited to “political arrangements in regard to trade requiring the sanction of Parliament, regulation of trade in matters of inter-­‐
provincial concern, and it may be that they would include general regulation of trade affecting the whole dominion (citizens’ insurance co v. Parsons) Relationship to Property and Civil Rights !
Judicial interpretation has narrowed the scope of s 91(2). (vs USA who ^) !
S 91(2) and s 92(13) (ie property and civil rights power of the provinces) appear to overlap (trade and commerce is carried on by means of contracts which give rise to “civil rights” over “property’), but Courts, by a process of mutual modification, have narrowed the 2 classes of subjects as to eliminate the overlapping and make each power exclusive Since the PARSONS case, it has been accepted that: (1) INTRAprovincial trade and commerce is a matter within provincial power, under “property and civil rights in the province” (s 92(13)) (2) The federal trade and commerce power is confined to (a) INTERprovincial (connecting or involving different provinces) or international trade and commerce, and (b) “general” trade and commerce affecting the whole dominion 1. Interprovincial or International Trade and Commerce (i) In the Privy Council ! The Parson Case did not define when trade and commerce became sufficiently interprovincial so as to come within the federal power. ! Early cases suggested that unless a federal law attempted to control (not particular trades) but more general aspects of the economy (combinations prices, labour), which were governed by economic forces that ignored provincial boundaries, then they could not be held valid under the trade and commerce power (Insurance Reference 1916; Toronto Electric Commissioners v Snider 1925). Margarine Reference: o Held unconstitutional a prohibition on sale, manufacture, import of margarine b/c it affected both INTERprovincial and INTRAprovincial dealings. However, importation was still valid law and severed (ii) In the Supreme Court of Canada ! Since the abolition of appeals to the Privy Council there has been a reappearance of the trade and commerce power ! New attitude: Ontario Farm Products Marketing Reference 1957: federal power would extend to some transactions which were completed within a province Key Principle in ! R v Klassen 1959: striking departure from PC decisions ^ o Principle: if impugned Act has incidental effect to intraprovincial transactions (sale of grain by farmer to local store), that’s okay (so long that the intraprovincial effects were incidental to the purpose of the Act) here purpose was to regulate the interprovincial and export trade in grain. ! Labatt Breweries v A-­‐G Can 1979: o Federal trade and commerce power was rejected as a support for federal legislation. Court struck down compositional standards for beer enacted under the Food and Drugs Act. The standards on the beer industry were without regard for the product’s movements across provincial boundaries AND the case reaffirmed the rule that the trade and commerce power will not authorize the regulation of a single trade or industry. 2. General Trade and Commerce ! General category of trade and commerce had previously been rejected as a support for federal policies of economic regulation. (until GM v National) ! Ex: rejected in insurance (Insurance Ref); labour regulations (Snider); prohibition of products (Margarine). ! Only example of valid exercise of general trade and commerce power was: Canada Standard Trade Mark: The case seemed to decide that the general trade and commerce power would authorize federal standards of production or manufacture for products traded locally, provided that the federal standards were tied to the voluntary use of a distinctive mark (Canada Standard) Labatt Breweries: SCC struck down compositional standards for “light beer” which would become applicable only through the use of the voluntary phrase “light beer”. Majority basically held that this case, unlike Canada Standard Trade Mark case, involved the use of a common name (light beer). Which is virtually mandatory and would affect producers who did not want to be affected. Common descriptive words are harder to avoid. Page 26 of 86 ! regulating business practices: ! MacDonald v. Vapor Canada 1976: a civil remedy for any business practice which was contrary to honest industrial or commercial usage was said to not fall under the federal power-­‐ the creation or extension of civil clauses of action of an essentially contractual or tortious character was a matter within property and civil rights. The only federal aspect was that the law applied throughout Canada, but this is insufficient. A central reg scheme would be ok. Limits to general regulation of trade affecting nation: ! Insurance Reference: federal Parliament cannot enact “national” insurance law simply because there are insurers located in various provinces ! Toronto Electric v. Snider: cannot enact federal labour law under s 91(2) ! Margarine Reference: cannot enact federal law to regulate sale of margarine in province ! Labatt Breweries v. A-­‐G Canada: struck standards for beer under federal Food and Drug Act as not properly regulating interprovincial trade, since imposed without regards to product movement across provincial boundaries CONTEMPORARY INTERPRETTION -­‐ Scope of the Trade and Commerce Power under s. 91(2) ! Current scope of federal power has expanded-­‐ SCC has allowed both branches of s.91(2) to be broadened: 1. Extra territorial: • Federal laws that are in pith and substance in relation to extra territoriality can be upheld notwithstanding their “incidental effects” on intraprovincial transactions: per Klassen 2. General regulation of trade: • Even if federal economic regulation is predominantly in relation to interprovincial trade, it can be upheld if in pith and substance it meets the criteria for validity pursuant to the general regulation of trade power: per General Motors-­‐ scheme of regulation must be truly general and national in scope; provinces must lack the ability to effectively regulate the subject matter GENERAL MOTORS OF CANADA LTD v. CITY NATIONAL LEASING 1989: ! Upheld constitutionality of the federal competition legislation under the “general” trade and commerce power ie. The 2nd of Parsons test for s 91(2) Analysis for whether a legislative provision is within the “general” branch of the Trade and Commerce power: i.
The presence of a general regulatory scheme; ii. Scheme monitored by oversight of regulatory agency; iii. Legislation concerned with trade as a whole, rather thn particular industry iv. Legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting; and v. the failure to include one or more provinces or localities in the legislative scheme would jeopardize the successful operation of the scheme in other parts of the country ! Overall, the Competition Act was a valid exercise of the general trade and commerce power. A 5 part test was adopted and employed (using part of the Vapor test) in this case. The allegations that gave rise to litigation concerned price discrimination in the financing of the purchase of vehicles by companies that lease fleets of automobiles and trucks within a single province. ! Thus, since the law was upheld, the conclusion was that Parliament has the constitutional power to regulate intraprovincial aspects of competition. REFERENCE RE SECURITIES ACT 2011-­‐ see above! *NOTE: The above chapter on trade and commerce discussed the federal trade and commerce power in relation to general terms. When attention is directed to more specific topics, for example, the regulation of businesses, the regulation of professions and trades, labour relations, marketing and securities regulation, it is found that trade and commerce is not the dominant source of power: legislative power is for the most part provincial, under property and civil rights in the province. Page 27 of 86 REQUIRED CASES FOR TRADE & COMMERCE: GENERAL MOTORS v. CITY NATIONAL LEASING: FACTS: During the 1970s General Motors (GM) sold vehicles to both City National Leasing (CNL) and to CNL's competitors. It was discovered that GM was giving CNL's competitor a better interest rate than CNL, which violated the federal Combines Investigation Act. In its defence GM argued that the provision in the Act that created the civil cause of action was outside the legislative competence of the federal government. HELD: Upheld federal Combines Investigation Act (now Competition Act) as a valid exercise of trade and commerce power under s 91(2) • Federal has power over international and interprovincial trade/ commerce affecting the entire nation. • Section 31.1 is intra vires parliament by virtue of its relationship to the scheme of economic regulation found in the Combines Investigation Act. Test when challenging a provision of an act (not the entire act): 1. Court must determine whether the impugned provision can be viewed as intruding on provincial powers, and if so to what extent (if no intrusion -­‐ ends): " Do a pith and substance analysis of the provision – what does it do, why, etc. 2. Court must establish whether the act is valid (go through analysis of classification of the act – do pith and substance of entire act): → a. If not valid, end of inquiry; → b. If valid move on to 3. 3. Court must determine whether the impugned provision is sufficiently integrated w/ the scheme that it can be upheld by virtue of that relationship (subjective): → Requires considering the seriousness of the encroachment on prov powers, in order to decide proper standard for such relationship:
⇒ If deeply instructive provisions only saved if it is necessarily incidental (act cannot function w/o that provision);
⇒ If it is a lower level of intrusion the provision can be saved it is has a rational, functional connection – further the operation of the act in some way (ensuring the provision is not just tacked on or colourable) PRINCIPLE: Analysis for whether a legislative provision is within the “general” branch of the Trade and Commerce power: 5 Step TEST 1. Presence of a General Regulatory Scheme". a. In this case—s 31.1 does infringe because creates a civil action (suing) which is generally a provincial matter b/w contracting parties. 2. Scheme must be monitored by oversight of regulatory agency. 3. Legislation concerned with trade as a whole, rather than with a particular industry " if scheme is valid must determine whether the impugned provision is sufficiently integrated with the scheme that it can be upheld by virtue of that relationship. 4. Legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting; 5. The failure to include one or more provinces or localities in the legislative scheme would jeopardize the successful operation of the scheme in other parts of the country OVERALL • In this case—the act as a whole embodies a complex scheme of economic regulation. The purpose of the act is to eliminate activities that reduce competition in the market place. • The validity of s31.1 – the provision must be related to the scheme for it to be constitutionally justified. Ask is it “functionally related” to the general objective (HERE YES it was) Overall # So GM was fucking with competition and the Combines Act was there to eliminate activities that messed with competition. Therefore s 31.1 was FUNCTIONALLY RELATED to that objective of encouraging competition and thus held to be valid. Note: Follows: The leading case on s 91(2) is Parsons established 3 propositions: 1. it does not correspond to the literal meaning of the words "regulation of trade and commerce"; 2. it includes not only arrangements with regard to international and interprovincial trade but "it may be that . . . (it) would include general regulation of trade affecting the whole dominion"; 3. it does not extend to regulating the contracts of a particular business or trade ! REFERENCE RE SECURITIES ACT 2011-­‐ see above! Page 28 of 86 [5] Peace, Order & Good Government-­‐ CONSTITUTION ACT, 1867, S 91 Residuary Nature of Power ! Opening words of s91, Constitution Act 1867 confer on the federal Parliament the power: o “to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces;… ! Accommodates matters which do not come within any of the enumerated provincial or federal provincial or federal heads of power ! In Canada, the provincial heads of power include one of great importance o S 92(13), “property and civil rights in the province”, a phrase which is apt to include most of the private law of property, contracts and torts and their many derivatives. o At the hands of the Privy Council s92(13) became a kind of residuary power itself, and one which was much more important than the nd
federal peace, order, and good government power. A 2 potentially sweeping head of provincial power is s 92(16), “generally all matters of a merely local or private nature in the province” ! The P.O.G.G power has given rise to 3 branches of legislative power: (1) The “Gap” Branch ! Purpose: fill gaps/lacunas in the scheme of distribution of powers. Gap Exists: Gap exists in the provision for the incorporation of companies: ! Constitution Act 1867 by s 92(11), empowers the provincial Legislatures to make laws in relation to “the incorporation of companies with provincial objects”, but there is no equivalent enumerated federal power of incorporation. ! The courts have held that the power to incorporate companies with objects other than provincial must fall within the federal residuary powers. Gap in treaty power (some controversy on this) ! S 132, Constitution Act 1867 confers upon the federal Parliament the power to enact laws for performing the obligations of Canada “as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries ! The framers of the Act did not contemplate that Canada would eventually acquire the power to enter into treaties on its own behalf Other Examples of the Gap Test: ! In the Official Languages Act : equal status of French/Eng in Parliament ! In the jurisdiction over offshore mineral resources (seabed covered via province, but extended beyond provincial borders, gap filled by federal law) (2) The “National Concern” Branch ! Matters which begin as local but acquire national dimensions or concern Local Prohibition Case (1986): the idea that some matter of legislation, in their local and provincial origin, could acquire “national dimensions” or “national concern” and thereby come within the federal Parliament’s p.o.g.g power CURRENT TEST: national concern Canada Temperance Federation case: a new test was formulated (and the requirement that only an emergency could serve as the basis for an exercise of the pogg power/ the requirement that national concern amount to an emergency as stated in Russell was now rejected): “if the legislation is such that it goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole (ie aeronautics case; radio case), then it will fall within this head of power (within the competence of the Dominion Parliament as a matter affecting peace, order and good government of Canada), although it may in another aspect touch on other matters over which the province has authority”. [THIS IS THE ESTABLISHED DEFINITION OF THE ‘NATIONAL CONCERN’ BRANCH] o If this test is satisfied, then the matter comes within the pogg power in its national concern branch o This case established that there was a national concern branch of pogg as well as an emergency branch ! The national concern branch of pogg has provided the sole basis for the decision in 3 cases in the SCC: a. Johannesson v West St Paul (SCC Case): Aeronautics satisfied the national concern branch (eg. Rapid growth of passenger and freight traffic by air, the use of aircraft for the carriage of mails especially to remote parts of the country, and the necessity for the development of air services are to be controlled by a national government responsive to the need of the nation as a whole”) b. Munro v National Capital Commission: the national capital region, an area around Ottawa that had been designated by federal legislation satisfied the national concern test Page 29 of 86 c. R v. CROWN ZELLERBACH (1988): held that marine pollution satisfied the national concern test o the federal Ocean Dumpling Control Act, which prohibited dumping “at sea”, was upheld in its application to marine waters within the boundaries of B.C o Le Dain J for the majority of the Court held that “marine pollution, because of its predominantly extra-­‐ provincial as well as international character and implications, is clearly a matter of concern to Canada as a whole” Definition of National Concern: WHEN DOES A SUBJECT MATTER OF LEGISLATION BECOME “THE CONCERN OF THE DOMINION AS A WHOLE” TO SATISFY THE NATIONAL CONCERN TEST?? R v . Crown Zellerbach – [1] Provincial Inability • Relied on the provincial inability test as a reason for finding that marine pollution was a matter of national concern. “it is because of the interrelatedness of the intraprovincial and extra-­‐ provincial aspects of the matter that It requires a single or uniform legislative treatment.” For example, the failure of one province to protects its waters would probably lead to the pollution of the waters of other provinces as well as the (federal) territorial sea and high sea • Another example of the above test is a case of an epidemic – the failure of one province to take preventative measures would probably lead to the spreading of the disease into those provinces which had taken preventative measures. 1
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Therefore an important element of national concern is a need for one national law which cannot realistically be satisfied by cooperative provincial action because the failure of one province to cooperate would carry with it adverse consequences for the residents of other provinces. A subject matter of legislation which has this characteristic has the necessary national concern to justify invocation of the pogg power 2#2: DISTINCTIVENESS: cannot be broad subject matter (ie ‘inflation) o
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In order to qualify as a “matter” coming within the national concern branch of the pogg power, a topic must be “distinct”: it must have a “degree of unity that makes it inadvisable, an identity which makes it distinct from provincial matters” (Anti-­‐inflation Reference) In R v . Crown Zellerbach, La Forest Dissented – said marine pollution lacked distinctiveness – marine waters went into fresh water and were affected by coastal environments making this power intrude into industrial and municipal activity and resource develop (prov pwr). THE REQUIREMNT OF “DISTINCTNESS” IS A NECESSARY BUT NOT A SUFFICIENT CONDITION for a matter to be admitted to the national concern branch of pogg A distinct matter would also have to satisfy the provincial inability test (or other definition of national concern) o a distinct matter would come within the provincial power if it came within “property and civil rights in the province” (s 92(13) or if it were “of a merely local or private nature in the province” (s92(16)) (3) The “Emergency” Branch ! Emergency must be temporary ! Until 1940, the pogg power was only valid for emergencies (A) Non-­‐ emergencies: Early Case Law ! Haldane: Emergency test first emerged in Board of Commerce case (1922): rejected the pogg power as authority for the statute on the ground that “highly exception” or “abnormal’ circumstances would be required to justify the invocation of pogg: as examples, they suggested “war or famine” ! Toronto Electric Commissioners v. Snider (1925): pogg power was available only in “cases arising out of some extraordinary peril to the national life of Canada, such as the cases arising out of war” ! Margarine Reference (1951): federal legislation prohibiting manufacture and sale of margarine was struck down, rejecting emergency argument. (B) War: ! Fort Frances: federal legislation (War Measures Act) enacted during First World War that dealt with economic responses to the war was held constitutional under this power o Privy Council held that the regime of price control which had been established during the first world war, and which continued temporarily after the war, was constitutional o In a “sufficiently great emergency such as that arising out war”, the pogg power would authorize laws which in normal times would be competent only to the provinces nd
! Rent control during and after the 2 world war was upheld on the same basis by the SCC in the Wartime Leasehold Regulations Reference (1950) Page 30 of 86 !
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Deportation of Japanese Canadians after the 2 world war was help on the same basis by the Privy Council (Japanese Canadians Reference 1947) In all cases, legislation outlived the war, but was still held to be valid. In Fort Frances case , Viscount Haldane deferred to the federal government on this point, saying that “very clear evidence” would be required to justify the court “in overruling the decision of the Government that exceptional measures were still requisite” (2)
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(C) Apprehended Insurrection ! The War Measures Act was held constitutional in one other context other than war, namely during the “October Crisis” of October 1970 when a violent Quebec separatist group kidnapped a British diplomat; the federal government responded by issuing a proclamation declaring that an “apprehended insurrection exists,” bring into force War Measures Act. Constitutionality of this was however never brought before courts. (D) Inflation ! MOST RECENT APPLICATION OF THE EMERGENCY DOCTRINE IS TO BE FOUND IN THE ANTI-­‐INFLATION RFERENCE 1976, in which the federal Anti-­‐Inflation Act was upheld as an emergency measure. Period of months with double inflation. Act was temporary. ! The case indicates that all you need to show is that a rational basis for finding that an emergency exists-­‐ don’t need definitive conclusions ! Case shows the courts show deference in these types of non-­‐definitive factual situations to the government. ! Hogg says: Federal Parliament can use its emergency power almost at will. (E) Temporary character of law: ! Limitation of the federal emergency power: it will support only temporary measures ! No permanent measure has ever been upheld under the emergency power. Yet, government decides whether still in emergency, and can thus drag out temporary for a long time. Relationship Between National Concern and Emergency: ! Lederman and Beetz J in Anti-­‐inflation: POGG power performs two separate functions in the constitution: (1) The pogg power gives to the federal Parliament the PERMANENT jurisdiction over distinct subject matters which do not fall within any of the enumerated heads of s 92, and which by nature are of national concern eg., aeronautics, the national capital region (Anti-­‐Inflation Reference) •
Second, the pogg power gives the federal Parliament TEMPORARY jurisdiction over all subject matters (including general ones like inflation) needed to deal with an emergency, so long as the legislation operates as a partial and temporary alteration of the distribution of power between Parliament and provincial legislatures (Anti-­‐Inflation Reference) This theory does explain most cases. Leading emergency cases did involve legislation asseting new category of federal power over property, prices, wages (Fort Frances, Snider, Wartime Leasing). In these cases only upheld if there was an emergency. Leading ‘national concern cases each involved legislation over more distinct and spate subject matter, ie aeronautics, marine pollution. No emergency and upheld if it was of national concern. REQUIRED CASES FOR P.O.G.G. R V CROWN ZELLERBACH CANADA (Dealing with the national concern branch) Facts: The federal Ocean Dumpling Control Act, which prohibited dump “at sea”, was upheld in its application to marine waters within the boundaries of B.C Held: s 4(1) is constitutionally valid : Le Dain J for the majority of the Court held that “marine pollution, because of its predominantly extra-­‐ provincial as well as international character and implications, is clearly a matter of concern to Canada as a whole” • Principles and Rational o Relied on the provincial inability test as a reason for finding that marine pollution was a matter of national concern. “it is because of the interrelatedness of the intraprovincial and extra-­‐ provincial aspects of the matter that It requires a single or uniform legislative treatment.” For example, the failure of one province to protects its waters would probably lead to the pollution of the waters of other provinces as well as the (federal) territorial sea and high sea ANALYSIS: STEP 1: Pith and substance of the Act ! Its purpose is to require a permit so that the regulatory authority may determine before the proposed dumping has occurred whether it may be permitted upon certain terms and conditions. STEP 2: Which head of power does it fall under? ! Can it be upheld under POGG Principles: Page 31 of 86 1. The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order and good government power, which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature; 2. The national concern doctrine applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern; 3. For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution; 4. In determining whether a matter has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern, it is relevant to consider what would be the effect on extra-­‐
provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-­‐provincial aspects of the matter [I.e.the “provincial inability” test]: Court says that marine pollution, because of its predominantly extra-­‐provincial as well as international character and implications, is clearly a matter of concern to Canada as a whole. HELD: s 4(1) is constitutionally valid as enacted in relation to a matter falling w/iin the national concern branch of the peace order and good government power ANTI INFLATION REFERENCE (Deals with the emergency branch) FACTS: The Anti-­‐Inflation Act passed in 1975, on recommendation of the Bank of Canada, to control the growing inflation of the past several years. ISSUE: Whether the social / economic circumstances allow parliament to use POGG HELD: Act was not ultra vires to the federal parliament. ! The Anti-­‐Inflation Act is valid legislation for POGG having regard to its temporary character it doesn’t invade provincial legislative jurisdiction [So, the legislation must be temporary in nature, otherwise it would be seen as invading provincial jurisdiction) PRINCIPLE: all you need to show is that a rational basis for finding that an emergency exists-­‐ don’t need definitive conclusions • It is not necessary for the proponents of the legislation to establish a rational basis, it is for the opponents of the legislation to establish the absence of a rational basis REASONING: Laskin CJ’s Judgment ! Court needs to find that there is a rational basis for the emergency legislation (not definitive proof that there was an emergency) [REQUIREMENT] ! Fed legislation can be upheld under the emergency test of the pogg power even if it was enacted after the emergency had ended (because the effects of the emergency may still be operative) [RULE] ! Fed legislation can be upheld under the emergency test of the pogg power even if it intrudes on provincial territory [RULE] ! It isn’t for the Court to assess whether the Act will in fact have the effect to mitigate against the emergency. Deference to parliament. ! The Anti-­‐Inflation Act is valid legislation for the peace, order and good government of Canada and does not, in the circumstances under which it was enacted and having regard to its temporary character, invade provincial legislative jurisdiction ! The word emergency need not be used in the Act for the Act to be upheld under the emergency test of the pogg power Richie J’s Judgment: ! An “emergency” exists where there can be said to be an urgent and critical situation adversely affecting all Canadians and being of such proportions as to transcend the authority vested in the Legislatures of the Provinces and thus presenting an emergency which can only be effectively dealt with by Parliament in the exercise of the powers conferred upon it by s. 91 of the British North America Act "to make laws for the peace, order and good government of Canada [DEFINITION OF EMERGENCY] ! The authority of Parliament is limited to dealing with critical conditions and the necessity to which they give rise must be confined to legislation of a TEMPORARY CHARACTER [REQUIREMENT] ! In order to determine whether the legislation in question was enacted to combat such an emergency, it is necessary to examine the legislation itself (i.e. look at the preamble etc) [Here, the preamble recognized the fact that inflation at current levels was contrary to the interest of all Canadians] [RULE] Page 32 of 86 [6] Criminal Law-­‐ CONSTITUTION ACT , 1867, S 91(27), S 92(15) Distribution of Powers ! S 91(27), Constitution Act 1867, confers on the federal Parliament the power to make laws in relation to: the criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters ! Under this provision criminal law= federal responsibility ! However, for the most part, Criminal Code is enforced by the provinces; and the decisions to investigate, charge and prosecute offences are therefore matters of provincial policy which will no doubt be framed in response to local conditions and sentiments. ! Provincial role in criminal justice derives from s 92(14) which confers on the provincial Legislatures the power to make laws in relation to: the administration of justice in the province, including the constitution, maintenance and organization of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts ! Provinces have “ancillary” (secondary/supplementary) power to punitive provisions (“fine, penalty or imprisonment”) in valid provincial laws (s 92(15)) Definition of Criminal Law 3 ingredients to the criminal law power: (1) A prohibition; (2) Coupled with a penalty; (3) With a criminal public purpose: ! e.g. non-­‐ exhaustive list: public peace, order, security, health, morality, etc (Margarine reference) ! **Note: there is no harm requirement for a law to be valid (Malmo-­‐ Levine); the criminal law power can serve economic ends (eg PATA case); a criminal purpose may be pursued by indirect means (RJR-­‐ MacDonald v Canada, eg health risks of tobacco did not require the outright banning of cigarettes, and could have been pursued by limiting advertising) Food & Drugs (a) Food and drug standards: MARGARINE REFERENCE 1949 A prohibition on the manufacture or sale of margarine was struck down on the basis that the purpose of the legislation was the economic one of protecting the dairy industry (invalid) – Rand J. When the margarine legislation was first enacted by fed parliament the preamble asserted that margarine was “injurious to health”-­‐ if it had been the continuing basis of the legislation, it would have satisfied the requirement of criminal public purpose o Medical facts that margarine was not injurious to health-­‐ destroyed what was originally a secure criminal law foundation for the legislation Food and drug legislation making illegal the manufacture or sale of dangerous products, adulterated products is within the criminal law power (R v Wetmore) If the purpose of the federal food and drug standard is related to health and/or the minimization of deception, then the law can be upheld under the criminal power (Labatt Breweries v A-­‐G Canada) o
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(b) Illicit Drugs ! Schneider v. The Queen: SCC upheld the BC Heroin Treatment Act, which provided for the compulsory apprehension, assessment and treatment of drug addicts; the treatment could include compulsory detention for up to 6 months. o Argument that this was really a criminal law was based on the deprivations of liberty that were authorized by the Act. o Yet the coercive elements of the Act were incidental to its public health purpose. Held to be a local or private matter (provincial). (c) Tobacco ! RJR MacDonald v Canada: prohibition on advertising cigarettes falls with criminal law power-­‐ parliament can use indirect means o Federal Tobacco Act did 2 things: require placement of health warning labels on cigarette packs and prohibited the advertising of cigarettes and other tobacco products. For the warning label requirement, the law was valid because the valid criminal purpose of protecting health. o The ban on advertising? Parliament clearly can prohibit the sale, possession and manufacture of dangerous products (Irwin Toy), but it had not done that here. Yet, majority said the power to prohibit the use of tobacco on account of its harmful effects encompassed the power to take the lesser step of prohibiting advertising (so, the criminal law power can be used indirectly to achieve a criminal law purpose) o Struck down on freedom of expression. But held to be criminal valid. Page 33 of 86 Health ! Health is not a single matter assigned by the Constitution exclusively to one level of government-­‐ it is distributed depending on the purpose and effect of the particular heath measure ! As the above food and drugs illustrates, there is a criminal law aspect of health, authorizing federal legislation under s 91(27) to punish conduct that is dangerous to health Environmental Protection ! The protection of the environment (which extends beyond the protection of human health) is a public purpose that would support a federal law under the criminal law power (R v Hydro-­‐ Quebec) Competition Law ! Economic activity ignores provincial boundaries and labour, capital and technology are highly mobile – difficult to regulate anti-­‐competitive practice at provincial levels. ! Originally invalid under criminal law power (Board of Commerce) then valid (P.A.T.A) (Atkin – if parliament believes bad to public then so be it) o The P.A.T.A case established that the criminal law power was capable of expansion into the world of commerce after it upheld federal legislation which dealt with restraint of trade issues ! BUT Now upheld under Trade and Commerce clause o The criminal aspect of the Act in PATA, due to changes in competition law, have diminished, and the relevant power for the most part is trade and commerce. Sunday Observance Law ! Religious purpose of Lord’s Day Act originally makes it valid federal law, eventually invalidate it under Charter. (prohibits work on Sundays) (a) Federal power [religious purpose] o
Big M Drug Mart: confirmed that the criminal law power can be used to legislate in relation to the purpose of preserving the sanctity of the Christian Sabbath (and observance of days of religious significance)-­‐ comes within safeguarding morality " [religious purpose crucial to federal power] (b) Provincial power [secular purpose] [Edwards Books – REL " Secular > time] o
Laws which provide “pause days” or restrict business hours, and which have secular purposes, are valid under the property and civil rights prov power Gun Control ! In 1995, the federal Parliament amended Code provisions, by enacting the Firearms Act which expanded rules by requiring ALL gun owners to be licensed ! The SCC upheld the validity of this legislation under the criminal law power in Re Firearms Act ! Public purpose of the Act: guns inherently dangerous, Act directed at safety to restrict access to inherently dangerous things Prevention of Crime (a) Prevention in general ! A law may be validly enacted “in relation to” criminal law, although the law itself does not have the characteristics of a criminal law ! Laws aimed at the prevention of crime, for example, binding over a person to keep the peace or controlling the possession of guns ! Laws of this kind are valid, although they depart from the traditional format of criminal law (b) Young offenders [preamble said ‘not criminals’] ! Young Offenders Act made provision for diversion programs under which young offenders could be diverted from criminal courts – these programs were upheld as an exercise of the preventative aspect of the criminal law power Criminal Law and Civil Remedy (a) Federal power generally to create civil remedies ! The federal Parliament has no independent power to create civil remedies similar to its power over criminal law. This means that if the pith and substance of a federal law is the creation of a new civil cause of action, the law will be invalid as coming within the provincial head of power of property and civil rights (MacDonald v Vapor Canada) ! Where the pith and substance of a federal law is not the creation of a civil remedy, but is some other matter within federal power, there is no reason to doubt the validity of a civil remedy provided for enforcement of the law-­‐ the remedy is valid as incidental to the main purpose of the law (Papp v Papp) ! Since Papp v Papp the SCC has used the ‘functional connection” test to uphold a civil remedy in federal corporation law, against persons who engage in insider trading, a civil remedy in federal competition law etc o Case about fed divorce act " provision about child custody (prov). (b) Criminal law power to create civil remedies ! In R v Zelensky, the SCC upheld a provision of the Criminal Code that authorized a criminal court, upon convicting an accused of an indictable offence, to order the accused to pay the victim compensation for any loss or damage Page 34 of 86 Criminal Law and Regulatory Authority ! Criminal power generally wont sustain a regulatory regime/ scheme which relies upon more sophisticated tools than a simple prohibition and penalty ! E.g Nova Scotia Board of Censors v McNeil: SCC held that the censorship of films was not criminal. Court upheld censorship law as being the regulation of an industry within the province (property and civil rights) ! R v Hydro-­‐ Quebec: HQ was prosecuted for violating an interim order that restricted the emission of a substance to one gram per day. Majority upheld the Act as a criminal law. “because the administrative procedure for assessing the toxicity of the substances culminated in a prohibition enforced by a penal sanction, the scheme was sufficiently prohibitory (Re Firearms Act affirms this reasoning – regulation of firearms (licensing) scheme = prohibition). REFERENCE RE ASSISTED HUMAN REPRODUCTION ACT 2010 o 1989 the federal government established the Royal Commission on New Reproductive Technologies (“Baird Commission”) to study assisted human reproduction. The commission expressed concern about certain practices in the field and pressed for legislation o Between 1993-­‐ 1995 the federal government consulted with the provinces, the territories and independent groups for advice which resulted in the passage of the Assisted Reproduction Act 2004 o The Act contains prohibitions and other provisions designed to administer and enforce them (eg prohibiting cloning…) o The A-­‐G of Quebec argued that although some of the provisions were invalid criminal law, certain sections were attempts to regulate the whole sector of medical practice and research related to assisted reproduction and thus were ultra vires. The Quebec Court of Appeal held that the impugned sections were not valid criminal law since their pith and substance was the regulation of medical practice and research to assisted reproduction o Held the appeal should be allowed in part and some of the provisions were struck down Provincial Power to Enact Penal Laws ! Provincial Legislatures have the power under s 92(15) to impose ‘punishment by fine, penalty, or imprisonment’ for the purpose of enforcing otherwise valid provincial laws ! However, the power requires the courts to draw a distinction between a valid provincial law with an ancillary penalty and a provincial law which is invalid as being In pith and substance a criminal law IMPORTANT The elusiveness of that distinction creates uncertainty about the scope of provincial power under s 92(15) as well as the scope of federal power s 91(27) Provincial / Federal Distinction in making Criminal Laws: ! Provincial power to create offences under s 92(15) is not as broad as the federal power to create offences under s 91(27) ! Where the penalties are imposed in respect of matters over which the provinces ordinarily have legislative jurisdiction (eg., property, streets, parks, businesses activity), the provincial law is likely to be valid. -­‐-­‐-­‐-­‐-­‐-­‐VS-­‐-­‐-­‐-­‐-­‐ ! Where the provincial offence cannot safely be anchored in property/ civil right or some other head of provincial power, then It will be invalid (Westendorp) Chatterjee v Ontario [2009] SCC o Police pulled car over and found money that smelled of marijuana o The police laid no charges but sought to keep the money through a provincial act that allowed them to keep “proceeds of unlawful activity” o Its’ stated purpose was to prevent persons from profiting from unlawful activity o The driver applied for a declaration that the Civil Remedies Act was unconstitutional o He relied solely on the federalism argument, and argued that the Act was an intrusion into the federal realm of Criminal law o Held that the pith and substance of the law was related to property o Forfeiture measures in the Criminal Code were only related to sentencing so the provincial forfeiture measures were considered independent o Held it was within provincial competence and the Act was upheld !
MAIN CASES FOR CRIMINAL LAW:
RE: FIREARMS ACT
FACTS: Alberta directs a reference to the Alberta Superiour Court to examine constitutionality
of the legislation (not its desirability).
ISSUE: Does the act, in P&S, refer to criminal law powers? YES—regulatory aspects are
secondary to the form of prohibition and penalty.
REASONS:
• The legislation’s dominant characteristic is public safety, which is a traditional
criminal law purpose. There’s also a form of prohibition and penalty.
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It doesn’t matter that the regulatory regime is complex. Here, there’s no regulatory
agency or administrator, not an official with broad discression. What discression they
have is restricted.
Unlike regulation of cars and property, guns have a dangerous nature.
It doesn’t matter it there are incidental effects onto provincial jurisdiction over
property and civil rights here—the law’s dominant feature is still federal.
The provinces may still regulate guns via hunting laws if they want to—there are no
watertight compartments here.
A dbl aspect area has been created here, which doesn’t exactly prohibit Alberta’s
ability to legislate regarding a gun registry—they might just end up at paramountcy or
IJI.
It doesn’t matter if this act is discriminatory against northern and rural communities,
because the court is not to look at the desirability of the legislation in question.
MARGARINE REFERENCE
FACTS: the feds banned the import of margarine
REASONS:
• Under Section 91(27) of the Constitution Act, 1867, Parliament receives exclusive
powers to legislate in regard to the criminal law.
• The precise meaning of the criminal law power, however, had proved controversial.
In the Board of Commerce case, the JCPC seemingly chose to define criminal law
power as limited to prohibiting only what was criminal in 1867.
• This was overturned in Proprietary Articles Trade Assn. v. A.-G. Can. (1931), in
which it was found criminal law means Parliament could legitimately prohibit any act
"with penal consequences." The problem with the latter decision was that it gave
Parliament an excuse to legislate in regard to many matters.
• In this case, Parliament had legislated against the production and trade of
margarine, in order to give dairy businesses assurances that margarine would not
threaten their existence
• This legislation actually dated back to 1886, and it was claimed in the law that the
real purpose was to target a product that was "injurious to health.
HELD:
• The prohibition of manufacture, offer, sale or possession for sale of the goods
mentioned is ultra vires of Parliament, as it is legislation in relation to property
• The prohibition of importation of the goods mentioned in the section is intra
vires of Parliament as legislation in relation to foreign trade
From this, two requirements must be met for a law to be criminal in nature:
(1)
The law must be a prohibition with a penal sanction; and
(2)
The law must be directed towards a public purpose.
o Rand also listed a few objectives that would qualify as legitimate public
purposes, namely "Public peace, order, security, health, morality."
REFERENCE RE ASSISTED HUMAN REPRODUCTION ACT, 2010 SCC
FACTS:
• The Court of Appeal was asked by the Government of Quebec to answer the following
question:
Are sections 8 to 19, 40 to 53, 60, 61 and 68 of th eAssisted Human Reproduction
Act, S.C. 2004, ultra vires the Parliament of Canada in whole or in part under
the Constitution Act, 1867?
HELD: The Court ruled in the affirmative in all respects of the question. (Rare 4-4-1 split)
REASONS:
The McLachlin opinion: constitutionally valid
• The dominant purpose and effect of the legislative scheme is to prohibit (Prohibition)
practices that would undercut moral values, produce public health evils, and threaten the
security of donors, donees, and persons conceived by assisted reproduction.
• Here, the matter of the statutory scheme, viewed as a whole, is a valid exercise of the
federal power over criminal law.
The LeBel/Deschamps opinion: unconstitutional
• The impugned provisions represent an overflow of the exercise of the federal criminal law
power.
• Their pith and substance is connected with the provinces’ exclusive jurisdiction over
hospitals, property and civil rights, and matters of a merely local nature.
The Cromwell opinion: constitutional, to extent that they relate to constitutionally valid
• The matter of the impugned provisions is regulation of virtually every aspect of research
and clinical practice in relation to assisted human reproduction. The matter of the
challenged provisions is best classified as relating to the establishment, maintenance and
management of hospitals, property and civil rights in the province and matters of a merely
local or private nature in the province. However, ss. 8, 9 and 12 in purpose and effect
prohibit negative practices associated with assisted reproduction and fall within the
traditional ambit of the federal criminal law power.
Page 36 of 86 HUMAN RIGHTS & FREEDOMS [1] Language Rights-­‐ CONSTITUTION ACT 1867, S 133 2 major areas of discussion: i. Distribution of powers over language ii. Constitutional protections for minority languages ! English and French (languages of European founders of Canada) have special constitutional recognition ! Right to speak Aboriginal languages is probably protected by s 35, Constitution Act 1982 ! Immigrant groups have language interests Distribution of Powers over Language ! Language is NOT one of the classes of subjects (or heads of legislative power) which the Constitution Act 1867 enumerates and distributes to the 2 levels of government. ! Cases decide that language is NOT an independent matter of legislation (or constitutional value) ! A law prescribing that a particular language or languages must/may be used in certain situations will be classified not as a law in relation to language, but as a law in relation to the institutions or activities that the provision covers Jones v Attorney General of New Brunswick 1974: ! SCC upheld the federal Official Languages Act which purported to make the English and French languages the official languages of Canada “in the institutions of the Parliament and Government of Canada ! Court held that the law was authorized by federal power over federal governmental and parliamentary institutions (which stemmed from the pogg power). Also stemmed from enumerated classes (procedure, courts – federal). ! Since Jones was decided, the court has held that the pogg power should be confined to subjects of legislation that are relatively narrow and specific, and it seems likely that the subject of language would be too broad to qualify Devine v. Quebec 1988 ! SCC upheld various provisions of Quebec’s Charter of the French Language that regulated the language of commerce; they required the use of the French language in public signs, commercial advertising, brochures etc !
In this case the challenged provisions were in relation to commerce within the province, which was a matter within the provincial jurisdiction over property and civil rights in the province (s92(13)) Language of Constitution ! Constitution Act 1867 was enacted in English only (the French version that is to be found in the Appendix to the Revised Statutes of Canada is unofficial) ! S 55, Constitution Act 1982 directs the Minister of Justice to prepare a French version of the English-­‐only parts of the Constitution of Canada, and to put it forward for adoption as an official text by the appropriate amending procedures. ! So long as the French version of the Constitution Act 1867 remains unofficial any discrepancy between the English and French version would have to be resolved by recourse to the English version, because that is the only authoritative one ! Canada Act and Constitution Act 1982 were enacted by UK in BOTH languages ! S 57, Constitution Act 1982, provides that the English and French versions of that Act are “equally authoritative” ! The rule of equal authority is the only appropriate one for a bilingual country, but it does not tell us how to resolve discrepancies between the English and French versions ! Since confederation, federal statues have been enacted in both languages, because that was required by s 133 of the Constitution Act 1867 Discrepancies Arise: ! Courts have held that the English and French versions are equally authoritative (king v Dubois) and have developed rules for resolving discrepancies: (these rules should be applied to the bilingual texts of the Constitution of Canada) ! Where one language version is doubtful or ambiguous and the other is clear; the doubt or ambiguity is resolved by reference to the clear version (king v Dubois) ! Where there is a divergence between the 2 language versions, that meaning should be selected that is compatible with both versions (Jones and Maheux v. Gamache)= general rule (however, the meaning selected must be reasonable in the context of the statute) ! If one language version gives better effect to the purpose of the statute, then that version should be selected, even if a narrower meaning would be common to both versions (The Queen v. Compagnie Immobiliere) Page 37 of 86 Language of Statutes (a) Constitutional requirements ! Only explicit guarantee of language rights in the Constitution Act, 1867 is contained in s 133: “English or French to be used in debates in the Houses of the federal Parliament and Quebec Legislature; it requires both English and French to be used in the records and journals of those Houses; and it requires the statutes of the federal Parliament and Quebec Legislature to be printed and published in both languages. It also provides that either English or French may be used in any pleading or process in the federal courts of Quebec courts) ! Applies ONLY to the legislative bodies (and courts) of the federal government and of Quebec. S 133 does not apply to the Legislature (and courts) of any province other than Quebec. ! HOWEVER, the Manitoba Act 1870 includes, as s 23, a provision that provides for the use of English and French in the Legislature (and courts) of Manitoba in terms very similar to s 133 ! The Charter of Rights, which is Part I of the Constitution Act, 1982 incudes as ss 16 to 23 a variety of language provisions (b) Quebec’s Charter of the French language A-­‐G of Quebec v. Blaikie 1979: o Quebec’s Charter of the French Language (making French the sole language of the legislature) does not supersede s 133-­‐ must be official statutes in both languages in Quebec o Held unofficial ENG translations did not meet the s 133 requirement ! s 133’s requirement that the statutes be “printed and published’ in both languages should be interpreted as a requirement of “enactment in both languages”, especially in light of the requirement that the ‘records and journals” of the Legislature should be in both languages ! Statutes enacted in French only were invalid (c) Manitoba’s Official Language Act ! Manitoba Act 1870 s 23-­‐ provides for the use English and French in the Legislature (and courts) of Manitoba in terms similar to s 133 s 23: either the English or the French languages may be used by any person in the debates of the Houses of the Legislature, and both those languages shall be used in the respective records and journals of those Houses; and either of those languages may be used by any person, or in any pleading or process, in or issuing from any Court. The Acts of the Legislature shall be printed and published in both those languages. Reason for s 23 was to guarantee the rights of the French-­‐ speaking minority in Manitoba ! The Manitoba’s Official Language Act 1890 provided that “the English language only” shall be used in the records and journals of the Legislatures, and in pleading and process in Manitoba courts. In effect, an attempt to repeal most of s 23 of Manitoba Act In Re Manitoba Language Rights 1985 case, held the statue was invalid o SCC confirmed that the failure to comply with s 23’s requirement of bilingual enactment resulted in the invalidity of the purported statute o Almost all Manitoba Statutes were held invalid because enacted in English only, contrary to s 23 ! Temporary suspension of invalidity -­‐ Court declared that the province’s statutes were to be “deemed to have temporary force and effect for the minimum period necessary for their translation, re-­‐enactment, printing and publication” ! Could not allow English to prevail over French if conflict-­‐ equal authority given to both, no inferiority of one language (d) Incorporation by Reference ! General rule: where a statute makes reference to another document so as to incorporate (or adopt) the document as part of the statute, then if there is a constitutional requirement that the incorporating statute be in both languages, then the requirement will apply to the incorporated document as well (not an absolute rule though). ! A-­‐G of Quebec v Collier 1985: 2 Quebec statutes (enacted in both English and French) were held unconstitutional as they incorporated by reference unilingual session papers (in French only) (which were an integral part of the statutes) and thus infringed s 133 of the Constitution Act 1867 (e) Delegated legislation ! S 133 requirements, as a general rule, apply to delegated legislation, as well as to statutes. Thus, delegated legislation must be in ENG and FRENCH. ! A-­‐G of Quebec v. Blaikie: bilingualism requirement under s 133 of Constitution Act 1867 applied to statutes and regulations ! A-­‐G of Quebec v. Blaikie (no 2) (1981): s 133 only applied to the provincial government (ie, excluded municipal by-­‐ laws and school boards), courts and quasi-­‐judicial tribunals (eg rules of practice) ! Re Manitoba Language Rights (No 3) (1992): SCC held that s 23 applied only to “instruments of a legislative nature”. An instrument would have 3 characteristic: (1) it would establish a “rule of conduct”; (2) it would have the “force of law”; (3) it would be “of general application rather than directed at !
Page 38 of 86 specific individuals or situations” (the obligation of bilingual enactment applied only to instruments possessing those 3 characteristics) Language of Courts (a) Constitutional requirements ! S 133 of Constitution Act 1867 requires that either French or English “may be used by any person or in any pleading or process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec ! S 23 of the Manitoba Act 1870 imposes similar requirement on the courts of Manitoba ! Section 19(2) of the Charter of Rights imposes a similar requirement on the courts of New Brunswick ! The courts of the other 7 provinces are under NO similar constitutional obligation ! Quebec’s Charter of the French Language provide that, in the courts of Quebec, French was to be the language of pleading and process, except in certain defined circumstances ! But… A-­‐G of Quebec v Blaikie 1979: court held litigants in the courts of Quebec able to have the option of using English in any pleading or process) (b) Language of Process ! Can be in either English or French MacDonald v. City of Montreal 1986: ! An English-­‐ speaking person issued French summon for speeding. Challenged. ! Majority: s 133 does not give the right to choose the language of the process or right to be understood Beetz J: language rights are different than other human rights-­‐ it flows from politics, not principle = narrower interpretation Wilson J. (Dissent): s 133 implies a duty to accommodate English and French speakers (wide interpretation). (c) Language of proceedings Societe des Acadiens v. Association of Parents 1986: ! Claimed one of the 3 judges did not understand French ! Beetz J repeats MacDonald view for majority (case above) ! Makes a distinction between language rights and right to fair hearing: ! Beetz J in this case points out that a right to a fair hearing, which was recognized by the common law rules of natural justice and which was protected by ss 7 to 14 of the Charter, would be offended by a presiding judge’s failure to comprehend the evidence or argument o
o
o
But the fair-­‐ hearing right to be heard and understood by a court was not a language right and it extended to those who spoke or understood neither official language It had not been breached in this case because the judge’s alleged incompetence in French had not been established as a matter of fact Court’s CURRENT position: language rights deserve large, liberal interpretation (DesRochers, SCC 2009) Language of Government ! Previous sections addressed the constitutional requirements, in the federal jurisdiction, Quebec, Manitoba, and New Brunswick, with respect to the use of the English and French languages in legislative bodies and courts ! We have noticed that limited form of bilingualism that is required by s 133 of Constitution Act 1867, s 23 Manitoba Act 1870, and ss 16 to 20 of Charter Rights. ! But two provisions of the Charter – ss 16 and 20 go beyond legislative bodies and courts S 16 of the Charter provides: ENG and FRENCH “Official Lang of Canada” 16(1): 16(2): 16(3): English and French are the official languages of Canada and have equality of status rights and privileges as to their use in all institutions of the Parliament and government of Canada English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French (in other words, legislatures can provide rights beyond those guaranteed in the Charter) Section 20 of Charter :Obligation on Gov’t to provide bilingual services to pub 20(1): (a) (b) 21(2): any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where there is a significant demand for communications with and services from that office in such language; or Due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of New Brunswick in English or French Page 39 of 86 DesRochers v Canada 2009: ! English and French services must be of equal quality ! Equality is substantive – users of service must be getting equal benefits ! Like other language rights, s20 should be given a liberal and purposive interpretation – when s20 applies, the principle of equality of both languages guaranteed by s16 must be respected. Language of Commerce ! None of the language rights in the Constitutions of Canada protects the use of the English or French language in commercial/ private settings. BUT ! Language laws may offend the freedom of expression (Charter s2(b)) Ford v Quebec 1988: • SCC struck down the provisions of Quebec’s Charter of the French Language that required commercial signs and advertisements to be in French only. • The court held that freedom of expression included “the freedom to express oneself in the language of one’s choice.” • It followed that the prohibition of the use of any language other than French was a breach of freedom of expression. • The court also held that while s 1 would save some laws, a total prohibition of other languages on commercial signs/advertisements was a disproportionately severe measure that could not be saved under s 1. Thus held to be invalid. ! Devine v Quebec 1988: requirement of French without prohibition on other languages offends s 2(b) of Charter but is saved by s 1. Thus proportionate. Language of Education ! s 93, Constitution Act 1867-­‐ confers on provincial legislatures the power to make laws in relation to education, and the ancillary power over language of instruction in the schools. But if a particular language of instruction was a right or privilege of separate schools in a particular province at the time of confederation, then the province would be disabled from compelling such schools to instruct in a different language o This section applies to each of the original confederating provinces, namely, Ontario, Quebec, New Brunswick, and Nova Scotia and B.C and P.E.I / slightly different versions apply to Manitoba, Alberta, Saskatchewan, and Newfoundland Roman Catholic Separate School Trustees v Mackell 1916: o Ontario can require English to be language of instruction in Catholic schools. Even in French catholic schools. o Content of right depends on laws in force at confederation. If at time of confederation, there was class of peoples practicing another language at school, then constitutionally protected by s93. Yet the court held that classes of peoples is specific to Roman Catholic class and NOT language or race classes. S 23 of Charter: Minority Language Rights o Minority language rights have now been provided for in s 23 o Confers upon citizens of Canada who are members of the English speaking minority in Quebec or the French speaking minority in the other provinces ‘the right to have their children receive primary and secondary school instruction in the minority language in that province.” This right is possessed by parents who fit into 1 of 3 categories: (1) the mother tongue of the parent ! Does not apply in Quebec unless Quebec decides to adopt it (s 59 of Constitution Act 1982) (2) the language of primary school instruction in Canada of the parent ! AG Quebec Protestant School (3) The language of instruction in Canada of one child of the parent ! There is a qualification to s93 though. The right is not an absolute one (can be invoked “only where numbers warrant”) Page 40 of 86 [2] Aboriginal & Treaty Rights FEDERAL LEGISLATIVE POWER Section 91(24), Constitution Act 1867 ! Confers upon the federal Parliament to make laws in relation to “Indians, and lands reserved or the Indians” (ie “rationally relate” to legislative policy in regard to Indians) ! Contains 2 heads of power: (1) a power over “Indians” and (2) a power over “lands reserved for the Indians” st
! 1 power= may be exercised in respect of ONLY Indians whether or not they reside on, or have any connection with, lands reserved for the Indians nd
! 2 power= may be exercised in respect of Indians and non-­‐ Indians so long as the law is related to lands reserved for the Indians. ! Idea: Fed government maintain uniform respect, better able to be unbiased. (a) Indians ! Refers to aboriginal peoples living in Canada before European contact ! “status Indians”-­‐ under federal Indian Act enjoy right to live on Indian reserves, and have other privileges under the Act, and all are captured by s 91(24) (approx. 700,000) ! “non-­‐ status Indians”-­‐ are not captured by the Indian Act definition, but can be “Indians” under s 91(24) (approx. 200,000) ! Metis (intermarriage between French Canadian men and Indian women during fur trade period) are probably “Indians” under s 91(24) (approx. 300,000) but are not governed by the Indian Act ! Inuit – are “Indians” under s 91(24) (approx. 50,000) but not governed by the Indian Act ! Federal Government can make laws for Indians on matters which otherwise lie outside its legislative competence, and on which it cannot leg for non-­‐Indians. (b) Lands reserved for Indians ! Includes the lands set aside as Indian reserves before and after Confederation ! Also includes the huge area of land recognized by the Royal Proclamation of 1763 as “reserved” for the Indians, that is, all land within the territory covered by the Proclamation that was in the possession of the Indians and that had not been ceded to the Crown DELGAMUUKW V BRITISH COLUMBIA 1997: SCC went further holding that it extends to all “lands held pursuant to aboriginal title” (for that reason, only the federal Parliament had the power to extinguish aboriginal title) St. Catherines’s Milling case 1889: Privy Council held that lands reserved for the Indians were not among the properties transferred to the Dominion by the property provisions of the Constitution Act 1867. Thus the underlying title to the land remained in the Crown in right of the province, subject to the aboriginal rights of the Indians (which are subject to federal legislative authority) ! BUT if the Indians surrender their rights over particular lands, which they can only do to the Crown, then full title to the lands is assumed by the province, not the Dominion (c) Charter of Rights ! S. 15-­‐ contains an equality guarantee ! The Indian Act has not yet been challenged under s 15 by reason of its use of the “Indian” classification ! The term “Indian” under the federal Indian Act distinguishes on the basis of race, although it may not infringe s 15(1) of the Charter as it may not “discriminate” by promoting prejudice or stereotyping ! Any s 15(1) infringement could be justified under s 1 of the Charter ! Indian Act like any other statute is vulnerable to attack. (d) Treaties: • General rule: have no effect internally in canada unless they are implemented via legislation. • Before 1982 they could not stand against inconsistent federal legislation • Sect 35 of 1982 Constitution Act now gives constitutional protection to rights created by treaties entered into in past. • Operates as a limitation on powers of federal government and provincial. PROVINCIAL LEGISLATIVE POWER ! GENERAL RULE: provincial laws apply to Indians and lands reserved for the Indians ! Four B Manufacturing (1979) o SCC held that provincial labour law applied to a shoe-­‐ manufacturing business, which was located on a reserve, which was owned (through a corporation) by Indians, employed mainly Indian, and funded by the Department of Indian Affairs. ! R v. Francis (1988) o court held that provincial traffic laws applied to an Indian driving a vehicle on an Indian reserve ! These decisions establish that the provincial Legislatures have the powers to make their laws applicable to Indians and on Indian reserves, so long as the law is in relation to a matter coming within a provincial head of power !
Page 41 of 86 The 2 above cases rejected the theory that Indian reserves are federal “enclaves” from which provincial laws are excluded Section 88 of the Indian Act Provides that: ‘subject to the terms of any treaty and any other Act of the Parliament of EXCEPTIONS to the general rule that provincial laws don’t apply to Indians (5): 1. Singling out ! Provincial law cannot target Indians or lands reserved for the Indians for special treatment (ultra vires) and therefore would be invalid. This is b/c only federal parliament can legislate “in relation to Indians” 2. Indianness ! A provincial law cannot affect an integral/ vital/ core part of primary federal jurisdiction over Indians and lands reserved for the Indians (ie., cannot affect aboriginal rights or treaty rights, or right to possession of land on Indian reserves, or some uses of land on reserve, or buildings on reserves) ! Natural Parents v. Superintendent of Child Welfare (1975): SCC held that, while provincial adoption law would permit white parents to adopt an Indian child, the provincial law had to be read down so as not to deprive the child of his Indian status ! Kitkatla Band v British Columbia 2002: unsuccessful challenge to provincial heritage conservation law which allowed licensed logging companies to destroy “culturally modified trees”-­‐ no aboriginal right or title to the trees (on Crown land)-­‐ despite cultural significance, application of the act to the trees did not affect Indianness 3. Paramountcy ! If a Provincial law is inconsistent with a provision of the Indian Act (or any other federal law), the provincial law is rendered inoperative 4. Natural resources agreements ! The right of Indians to take game and fish for food, which is defied and protected in the 3 prairie provinces (Manitoba, Saskatchewan, and Alberta) by the Natural Resources Agreement. Provincial laws cannot deprive Indians of this right 5. Section 35, Constitution Act 1982 ! Since 1982, aboriginal and treaty rights are constitutionally protected by s 35 ! Even before 1982 aboriginal rights and treaty rights were not vulnerable to provincial law, because of the Indianness exception . ! S35 is examined later in chapter. Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by-­‐law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.’ !
Makes clear that provincial “laws of general application” apply to “Indians” and makes no reference to lands reserved for the Indians, but it does extend to Indians on reserve ! Operates as a federal adoption, or incorporation by reference, of provincial laws, making the provincial laws applicable as part of federal law Not only a declaration of previous case law: o Extends body of provincial law that is applicable to Indians. o Provincial laws affecting Indianness, which do not apply to Indians of their own force are applicable by s88. (Dick v The Queen) (provincial laws of general application can infringe aboriginal rights but not as far as to extinguish aboriginal rights) ! Provides absolute protection against any significant infringement of treaty rights by provincial law (note: treaty rights also protected by s 35 Constitution Act 1982) ! Preserves paramountcy: any conflict b/w federal statute and provincial law of general application resolved in favour of federal statute. ABORIGINAL RIGHTS: Overview: ! Aboriginal rights are distinct and arise from Aboriginal occupation of lands in Canada in organized/ governing societies (“nations”) prior to European contact ! Aboriginal rights include concept of Aboriginal title, which is a unique communally held property right ! The scope of an Aboriginal right depends on specific facts related to the Aboriginal group and its historic relationship to the land in question ! S 35, Constitution Act 1982 protects Aboriginal rights and title (a) Recognition of Aboriginal Rights ! s 35, Constitution Act 1982 gives constitutional protection to “the existing aboriginal and treaty rights of the aboriginal peoples of Canada” !
Page 42 of 86 Aboriginal rights that have not been extinguished are recognized by the common law and are enforceable by the courts. Guerin v The Queen is the leading case on this matter. Facts: Musquem Indian Band surrendered land to Crown to enable lease to a golf club Held: Aboriginal rights exists at common law and confirmed they are enforceable by the courts (a pre s 35 Constitution Act 1982 case) Recognized Aboriginal title to land in B.C as “a legal right derives from the Indians’ historic occupation and possession of their lands” ! Sparrow follows Guerin and recognized the aboriginal right of a member of the Musqueam Indian Band to fish for salmon in the Fraser River. Sparrow also recognized that in all dealings with aboriginal peoples, the Government has the responsibility to act in fiduciary capacity, and also decides that aboriginal rights, including the fiduciary duty, are now constitutionally guaranteed st
through s 35 of the Constitution Act 1982 (this was the 1 s35 case) (b) Definition of Aboriginal Rights ! Aboriginal RIGHTS are rights held by aboriginal peoples, not by virtue of Crown grant, legislation or treaty, but “by reason of the fact that aboriginal peoples were once independent, self-­‐ governing entities in possession of most of the lands now making up Canada.” ! Lamer C.J. in R v Van der Peet (1996) pointed out that “when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries.” This fact distinguishes aboriginal peoples from all other minority groups in Canada, and explains why aboriginal rights have a special legal, and now constitutional status. R. v. VAN DER PEET [previously SCC recognized, here they defined chara] FACTS: Aboriginal def convicted selling fish she caught under Indian food fish licence. Licence restricted fishing. Question whether there was aboriginal right to sell fish for money or other goods. HELD: Exchange of goods did occur in their society before contact, but was incidental to practices of fishing for food. Practice of selling fish was not integral part of their culture. Only after EU influence did market arise. CASE CREATED TEST FOR ABORIGINAL RIGHTS DEFINITION: ! Articulated the legal test that was to be used to identify an “existing aboriginal right” within the meaning of s 35 of the Constitution Act 1982: !
TEST: (1) in order to be an aboriginal right, an activity must be an element of a practice, custom or tradition, integral (ie sufficiently central) to the distinctive culture of the aboriginal group asserting the right ! Integral " the practice must be of central significance to the society, must be defining and distinctive characteristic to society. (2) The practice must have developed before “contact”, ie before the arrival of Europeans in North America (3) The practice could evolve over the years as the result of contact, but a practice that has evolved into modern forms must trace its origins back to the pre-­‐ contact period (ie bow and arrow by the gun). Contemporary practices that developed “solely as a response to Europeans influences” do not qualify o In the above case s 35 did not apply (thus accused was convicted) because Aboriginal right is based on existence of an Aboriginal practice before “contact ! R v. Sapper 2006: Aboriginal right to harvest timber to construct permanent dwellings based on Maliset and Mi’kmaq pre-­‐contact ancestral practices of harvesting wood for temporary shelter and domestic uses (they cut down Crowns wood/trees for canoes, tools, firewood) – was immaterial that practices developed as necessity of survival, thus s 35 invoked and accused were successful in establishing their aboriginal right and entitled to be acquitted (c) Aboriginal Self-­‐ Government ! The aboriginal right of self-­‐ government must exist by virtue of the fact that aboriginal people were living in self-­‐ governing communities before the arrival of Europeans ! According to Pamajewon 1996 case , the aboriginal right of self-­‐ government extends only to activities that took place before European contact, and then only to those activities that were an integral part of the aboriginal society( did not include gambling, which was informal and small scale and not economically sustaining for Aboriginal communities) (ie must meet the Van der Peet test) Page 43 of 86 (d) Aboriginal Title: The right to exclusive occupation of land, which permits the aboriginal owners to use the land for a variety of purposes The SCC in Calder and Guerin recognized that At common law, aboriginal title survived European settlement and assumption of sovereignty by British Crown, unless surrendered or lawfully extinguished ! Aboriginal title was recognized by the Royal Proclamation of 1763, which governed British imperial policy for the settlement of British North America. o As settlement advanced across the country, treaties were entered into with the aboriginal people, who surrendered portions of their land to the Crown, thereby freeing up the surrendered land for settlement and development by non-­‐ aboriginal people ! Since 1982, Aboriginal title is protected by s 35, Constitution Act 1982 DELGAMUUKW V BRITISH COLUMBIA 1997 (Leading case on aboriginal title) Facts: Action by Aboriginal group for declaration of aboriginal title to tract of land in northern B.C Held: Aboriginal title is proved by showing that Aboriginal people occupied the land prior to sovereignty (not contact, which is earlier and less certain) Aboriginal title confers the right to exclusive use and occupation of the land includes right to engage in activities on land, and not just traditional activities e.g., can engage in oil or gas exploitation) Aboriginal title is inalienable (unchallengeable) except to the Crown (ie to pass title, Aboriginal owners must first voluntarily surrender land to Crown), and Crown then under fiduciary duty to deal with land in best interests of surrendering Aboriginals Aboriginal title only held communally by all members of Aboriginal nation (d) Extinguishment of Aboriginal Rights ! Aboriginal rights (including aboriginal title) can be extinguished in 2 ways: (1) by surrender and (2) by constitutional amendment (not that it is now clear that it would be a breach of Crown’s fiduciary duty to the aboriginal people to proceed with a constitutional amendment affecting aboriginal rights without at least the active participation of the affected aboriginal people) ! Extinguishment, whether by voluntary surrender or constitutional amendment, will not be inferred from unclear language. Only a “clear and plain” intention to extinguish is accepted by courts (Sparrow) !
Because of s 35, legislation cannot extinguish aboriginal rights, but it can regulate them, so long as the test of justification is passed TREATY RIGHTS: <1982, Indian treaty rights protected from Provincial legislation by s.88 Indian Act >1982, Treaty rights protected by s35 CA from Prov and Federal legislation. (a) History ! Historically, from approximately 1850 to 1920, a series of treaties were signed ceding Indian lands to the Crown in exchange for (among other things) hunting and fishing rights, and the reservation of certain portions of treaty lands ! After SCC in Calder (1973) recognized validity of Aboriginal rights, Canada resumed modern land claims process, to negotiate surrender of Aboriginal rights over non-­‐settlement lands in exchange for reserves, payment, development, land use planning, resource management etc (b) Definition of Treaty ! Indian treaty= unique (sui generis) agreement between Aboriginal nation and Crown with intention to create legally binding obligations for consideration featuring a measure of solemnity ! Surrender of Aboriginal rights or title is not necessary for a valid treaty, and does not have to involve territory ! R v Simon 1985: o SCC held: a “peace and friendship” treaty signed in 1752 by Governor of Nova Scotia and Chief of Micmac Indians was binding given intention to create legally binding obligations o Gave Micmacs liberty to hunt and fish in the treaty area, in exchange for ceasing hostilities. THUS (per s 88 Indian Act) exempted Micmac defendant from provincial game laws (c) Interpretation of Treaty Rights ! Broad and generous interpretation of what constitutes a treaty-­‐ “should be liberally construed with doubtful expressions resolved in favour of the Indians” –Nowegikick v Queen ! The reason for this rule include the unequal bargaining power of the Crown and the aboriginal people ! The honour of the Crown and the fiduciary duty of the Crown demand a rule that removes even the appearance or suspicion of sharp practice in treating with aboriginal people !
Page 44 of 86 !
Remarkable example of generous interpretation of an Indian treaty: R v Marshall (No 1) 1999 o Issue: whether M Indian charged with fishing for eels and selling them without a license had a treaty right to do so (brief “peace and friendship” treaty from 1760 between British Governor of Nova Scotia and M Chief did not directly discuss fishing, and limited discussion of “truck house” trade with British) o SCC held: “truck house” provision conferred a treaty right under s 35 Constitution Act 1982 to “hunt, fish and gather” to make “moderate livelihood” as these historic activities gave Indians commodities to bring to truck house for trade, THUS treaty right prevailed over provincial law and defendant acquitted ! R v Marshall No 3 2005: SCC rejected application of “truck house” argument to Mi’kmaq commercial logging operations on Crown lands without provincial statutory authority-­‐ logging (unlike eel fishing) was not a traditional Mi’kmaq activity in 1760 and modern logging was not the natural evolution of the minor trade in wood products at time of treaty, THUS defendants had no treaty right to cut down trees for commercial purposes without a license. (d) Extinguishment of Treaty Rights ! 2 ways to extinguish (same as Aboriginal rights): o 1. Voluntary surrender to the Crown o 2. Constitutional amendment o Prior to 1982, could also be extinguished by federal legislation (not provincial) but no longer possible given s 35, Constitution Act 1982 ! Require “clear and plain” intention to extinguish o Crown must show that it had a clear and plain intention to completely remove the ability to exercise the right THE NEED FOR CONSTITUTIONAL PROTECTION: Aboriginal and treaty rights suffered from 4 serious infirmities prior to receiving constitutional protection: 1. Uncertainty to the precise legal status of the rights 2. Doctrine of parliamentary sovereignty which meant that aboriginal rights were vulnerable to change or abolition by the action of the competent legislative body 3. Equality, under the Charter, suggested that special status might be unconstitutional 4.
Aboriginal and treaty rights could be modified or extinguished by constitutional amendment, whereby aboriginal peoples’ representatives were not entitled to participate in the decisive phases of the amending process (unlike now with s 35) The Constitution Act 1982 has taken steps to eliminate these 4 infirmities See section 35, 25, and 35.1 !
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SECTION 35, CONSTITUTION ACT 1982 ! Provides an additional layer of constitutional protection for Aboriginals: (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada (3) For greater clarity, in subsection (1) “treaty right” includes rights that now exist by way of land claims agreements or may be so acquired (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. ! S 35 is outside the Charter, thus o Protections under s 35 are not subject to justification under s 1 of the Charter (rights are not subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”) o The rights are not subject to legislative override under s 33 of Charter o The disadvantage of the location of s 35 outside the charter is that the rights are enforceable under s 24, a provision that permits enforcements only of Charter rights [1] “Aboriginal Peoples of Canada” " “Indian, Inuit, Metis” R v Powley (2003) SCC: o Facts: Father and son in Sault Ste. Marie charged with shooting moose without required provincial hunting license o Defence = they were Metis with aboriginal right to hunt for food in the Sault Ste Marie area (hunting was integral to historic Metis culture) o Held: “Metis”= distinct peoples, who, in addition to mixed Indian and European ancestry, developed own customs, way of life and recognizable group identity (apart from Indian, Inuit or European) prior to “time of effective European control” 3 factors indicating Metis identity: (1) Self-­‐ identification as Metis community member; (2) Ancestral connection to historic Metis community; and (3) Community acceptance (participant in modern Metis community) Page 45 of 86 “existing” s 35(1) ! Right are “existing” if they were not validly extinguished prior to 1982-­‐ see Sparrow (held word existing = unextinguished) “recognized and affirmed” s 35(1) ! = interpreted (as per Sparrow) ! Liberally construed-­‐ doubtful expression resolved in favour of Indians ! Incorporating fiduciary duty that government owes to Aboriginal peoples S 35(1) is a constitutional guarantee of Aboriginal and treaty rights ! Federal and provincial governments may not interfere with the exercise of existing Aboriginal rights or treaty rights ! Unless they are pursuing a compelling and substantial objective in a manner compatible with the honour of the Crown (Sparrow)= (sparrow places limits on aboriginal and treaty rights) ABORIGINAL RIGHTS: DUTY TO CONSULT Duty to consult and accommodate: ! Duty to engage in meaning consultation and accommodation as part of a process or reconciliation flowing from the Crown’s duty of honorable dealing: HAIDA NATION v B.C 2004; o Exists prior to (Haida) and after (Mikisew Cree) the legal recognition of Aboriginal or treaty rights o 35.1 of CA 1982 o Based on March 1983 agreement with Aboriginal representatives at constitutional conference of first ministers o New s 35.1 introduced – declares that federal and provincial governments committed to principle that before any amendment made to s 91(24) or s 35 or s 25, a constitutional conference will be convened and Aboriginal representatives invited to discuss proposed amendments (privilege accorded to no other group outside government-­‐ emphasizes special status of Aboriginal peoples) SECTION 25, CONSTITUTION ACT 1982 [interpretation provision] ! Does not create new rights " it is an interpretive provision, and part of the Charter, included to make clear that the Charter is not to be construed as derogating (detracting) from any aboriginal treaty or other rights etc ! In the absence of s 25, it would perhaps have been arguable that rights attaching to groups defined by race were invalidated by s 15 (equality clause) of the Charter Page 46 of 86 [3] Interpreting the Charter of Rights & Freedoms ! The Charter limited the powers of the federal Parliament as well as the provincial Legislatures ! Enhances national unity: uniform national standards for protection of liberties Protection of Civil Liberties -­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐ ! The Charter of Rights, like any other bill of rights, guarantees a set of civil liberties that are regarded as so important that they should receive immunity, or at least special protection, from state action ! The Charter will never become the main safeguard of civil liberties in Canada. ! The main safeguards will continue to the democratic character of Canadian political institutions, the independence of the judiciary and a legal tradition of respect for civil liberties. The Charter is no substitute for any of these things, and would be ineffective if any of these things disappeared. Expansion of Judicial Review -­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐ (a) New grounds of review ! The major effect of the Charter has been the expansion of judicial review. The Charter adds a new set of constitutional provisions that will invalidate inconsistent laws ! Judicial review is also more policy driven given the vagueness of the terms of the Charter (b) Vagueness of concepts “thought, belief, expression” ! Because of the vagueness of the Charter, the role of the law, lawyers and judges in the public life of the country has greatly increased ! The SCC has willingly embraced new powers conferred on it b/c vagueness ! The period of judicial activism since 1982 has been described as the Charter revolution ! Review on Charter grounds rarely defeats a desired legislative objective. After a law is struck down by the Court, the mechanisms of ss 1 and 33 typically leave room for the law to be replaced with another version that still carries out the legislative objective, and most of the time a replacement law is in fact enacted (c) Role of s. 1 ! Because of s 1, judicial review of legislation under the Charter of Rights is a 2 stage process: [1] First stage of judicial review: to determine whether the challenged law derogates from a Charter right (if it does not, then the review is over, and the law must be upheld). [2] If the law does derogate from a Charter right, then the second stage is to determine whether the law is justified under s 1 as a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society " Striking down a law b/c failed s1, most always means that a different law, one that has same objective but which encroaches less on the Charter right, would be a reasonable limit. (d) Role of s. 33
! The Charter includes, as s 33, an override power, which enables the Parliament or a Legislature to enact a law that will override the guarantees in s 2, and ss 7 – 15 Dialogue with Legislative Branch -­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐ (a) The idea of dialogue ! The presence in the Charter of the power to override s 33 means that most decisions striking down statutes on Charter grounds can be reversed by the competent legislative body. For example, a prohibition of the use of English in commercial signs that was struck down as a breach of freedom of expression was revived by the Quebec Legislature, invoking s 33 ! Helpful to think of the Court’s Charter decisions, not as imposing a veto on desired legislative policies, but rather as starting a “dialogue” with the legislative branch as to how to best reconcile the individualistic values of the Charter with the accomplishment of social and economic policies for the benefit of the community as a whole (b) Second look cases ! Mills case shows how concept of dialogue used to show deference to legislative decision ! Mills shows that the idea of dialogue indicates that when a legislature/ Parliament has revised and re-­‐enacted a law that the courts have found unconstitutional , the Court is likely to uphold the second attempt (underlying that this is the idea that, as the legislatures and Parliament Page 47 of 86 represent the will of the people, they are in a better position to sort out such problems) !
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The principle of democracy encourages remedies that allow the democratic process of consultation and dialogue to occur. Judicial respect for the autonomy of the other branches of government would also argue for restrain in crafting orders to compel the executive branch to rectify Charter breaches (i.e. Separation of powers) Characterization of Laws -­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐ 2 stages: (1) Determine whether the challenged law abridges a Charter right: a. First, characterize the challenged law, examining its purpose or effect b. Second, interpret the language of the Charter of Rights to determine whether it has been abridged by the challenged law (connected issues) (2) S 1 analysis if applicable o The focus in this part is on (1)(a) o If the purpose of a law is to abridge a Charter right, then the law will be unconstitutional. If the effect of the law is to abridge a Charter right, then the law will be unconstitutional (unless it is saved by s 1) – distinguish between purpose and effect (a) Purpose or effect ! A law will offend the Charter if either its purpose or its effects is to abridge a Charter right (est in Drug Mart). ! Legislation with an invalid purpose can’t be saved by s 1 (Big M Drug Mart) ! BUT it’s the “effect” that is normally at issue ! In Edwards Books: purpose test passed (secular), yet effect was to impose a burden on retailers whose religious beliefs required them to abstain from work on a day other than Sunday. (yet upheld under s1). (b) Trivial Effects ! Where the effect of a law on a Charter right is trivial or insubstantial, there is no breach of the Charter (R v Jones) INTERPRETATION OF CHARTER -­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐ (a) Progressive interpretation ! A constitution is likely to remain in force for a long time and is difficult to amend, which calls for a flexible interpretation, so that the constitution can be adapted over time to changing conditions ! A flexible interpretation that allows the constitution to be adapted over time to changing conditions is what progressive interpretation refers to Captured in Edwards v. A-­‐G Can 1930 by Lord Sankey’s metaphor of “a living tree capable of growth and expansion within its natural limits” (b) Generous Interpretation ! Lord Sankey in Edwards v A-­‐G Can in his ‘living tree’ metaphor was that a constitution should receive a generous interpretation o He went on to say that the provisions of the Constitution Act 1867 should not be “cut down” by “a narrow and technical construction” but should be given “a large and liberal interpretation” o This case decided that women were “persons” and accordingly eligible to be appointed to the Senate ! A generous interpretation of the Charter cannot be justified as increasing the powers of the legislative bodies; it will have the effect of reducing their powers. ! Justification for a generous interpretation of the Charter is that it will give full effect to the civil liberties that are guaranteed by the Charter (c) Purposive interpretation [looks to context, preamble, purpose of statute] ! Involves an attempt to ascertain the purpose of each Charter right and then to interpret the right so as to include activity that comes within the purpose and exclude activity that does not ! Actual purpose of a right is unknown, and so a court has a good deal of discretion in deciding what the purpose is, and at what level of generality it should be expressed ! Court generally assumed that a “purposive” approach and a “generous” approach are one and the same thing Purposive approach in harmony with s1 Justification Oakes test (strict): HOGG ! Once right confined with strict standard of justification (Oakes) seems obvious that a government ought to have to satisfy a stringent standard of justification to uphold legislation limiting the right. (d) Process as Purpose [constitution’s purpose – as purpose for each right] ! Process-­‐ based theory of judicial review offers 2 important advantages: 1. Supplies a helpful context for interpreting particular guarantees. ! The guarantees of free speech or expression, for example, should be seen not as constitutive of personal autonomy (a substantive value), but as an instrument of democratic government (a process-­‐ based value) 2. Offers a solution to the problem of the legitimacy of judicial review ! All that the judges are concerned with is the fairness of the process by which legislative bodies or other agencies or officials reach their decisions Page 48 of 86 It is not the wisdom, justice or rightness of the outcomes of the political process, but the integrity of the process itself, that is the proper subject of judicial review (e) Hierarchy of Rights [deduced by s33 notwithstanding] ! The Charter of Rights, by s 33, provides for the override of some rights by the inclusion of a notwithstanding clause in the overriding statute. Can be: The rights that can be overridden in this way are those guaranteed by s 2 (freedom of religion, expression, assembly and association), ss 7-­‐14 (legal rights) and s 15 (equality). Cannot be: The rights that cannot be overridden in this way are those guaranteed by ss 3-­‐5 (democratic rights), s 6 (mobility), ss 16-­‐
23 (language) and s 28 (sexual equality). ! S 33 thus creates 2 tiers of rights: the “common rights” that are subject to override, and the “privileged rights” that are not ! Sexual equality (s 28), may even be exempt from the limitation power of s 1 as well as the override power of s 33. That places s 28 at the top of the hierarchy ! Aboriginal and treaty rights which are guaranteed by s 35, are similarly privileged in that they are subject to neither s 1 nor s 33; this is because s 35 is outside the Charter of Rights. However, being outside the Charter is not entirely beneficial, because it means that s 24, which provides a remedy for breach of Charter rights, does not provide a remedy for breach of aboriginal and treaty rights . (f) Conflict Between Rights ! Hierarchy of rights does not imply that the “privileged rights” must take priority over the “common rights” when they come into conflict ! 2 provisions that contemplate conflict between rights: Section 25 recognizes the possibility of conflict (B/w aboriginal rights and race equality) and provides that the aboriginal and treaty rights are to prevail S 29 recognizes this possibility of conflict, and provides that the denominational school rights are to prevail ! R v Keegstra: o Court preferred ad hoc balancing to definitional balancing when resolving conflicts b/w rights. Courts should not assign priorities to rights, conflict is to be resolved by application to justificatory principles in s1. !
Interpretive Provisions ! Preamble: “whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law” ! S 25: Aboriginal rights ! S 26: other rights not affected ! S 27: multiculturalism ! S 28: equality to both sexes ! S 29: denominational school rights not affected ! S 30: North West Territories and Yukon (Nunavut) ! S 31: does not extend governments’ powers SOURCES OF INTERPRETATION (a) Pre-­‐Charter cases ! In interpreting the Charter, the doctrine of precedent will apply in the same way as it applies to the interpretation of other constitutional provisions (however, there will be few Canadian cases decided before the adoption of the Charter in 1982 that will be relevant) ! Closest cases would appear to be those interpreting the Canadian Bill of Rights. But SCC exercised extraordinary restraint in interpreting the Bill, relying in part on its statutory, as opposed to constitutional status (b) American cases ! American Bill of Rights was an important source of inspiration for the Charter (as it was for most other countries’ bills of rights), and much of the language of the Charter can be traced back to phrases in the American Bill of Rights ! Decisions of the SC of the US interpreting language that is similar to the language of the Charter are useful precedents for Canadian courts ! But SCC has exhorted itself to “be wary of drawing too ready a parallel between constitutions born to different countries in different ages and in different circumstances” ! Reason for the broader interpretation of the rights in Canada is the presence of s 1 of the Canadian Charter of Rights (c) International sources ! Canada is bound by a number of treaties dealing with human rights, of which the most important for present purposes is the International Covenant on Civil and Political Rights, to which Canada a party in 1976 ! As treaties, these instruments are only binding at international law ! They are not incorporated into Canada’s domestic law and are not enforceable in Canadian courts Page 49 of 86 !
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The terms of the Covenant are relevant to the interpretation of the Charter, by virtue of the rule that a statute (and presumably a constitution) should be interpreted as far as possible into conformity with international law The European Convention on Human Rights is another source of interpretational jurisprudence that has persuasive value for Canadian courts interpreting the Charter (d) Legislative history ! Legislative history of the Carter is admissible as an aid to its interpretation ! Thus earlier versions of the Charter, testimony given before the parliamentary committee which examined an earlier version and debates in the Senate and House of Commons are all relevant and admissible Priority between Federal and Charter Grounds ! When a law is challenged on both federal and Charter grounds, it is the federal ground that is the more fundamental of the two, and that ought to take priority over the Charter ground. Undeclared Rights ! S 26 of Charter: “the guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada. ! S 26 is a statutory provision, included to make clear that the Charter is not to be construed as taking away any existing undeclared rights or freedoms. Rights or freedoms protected by the common law or by statute will continue to exist notwithstanding the Charter ! The remedy under s 24 is not available for their enforcement Page 50 of 86 [4] Application of the Charter of Rights & Freedoms-­‐ CONSTITUTION ACT, 1982, S. 32 Benefits of Rights Who is entitled to the benefit of the rights guaranteed by the Charter of Rights??? ! Whether one can benefit depends on the wording of the right (a) Everyone, anyone, any person ! S 2, 7, 8, 9, 10, 12, and 17 of the Charter open with the phrase “everyone has the right”. ! In ss 11 and 19 “any person” replaces “everyone” ! S 20 uses “any member of the public” ! S 24 uses “anyone” ! Seems likely that these terms are synonymous and that each is apt to include a corporation as well as an individual Corporations: May benefit from many rights; e.g, section 2, in guaranteeing the fundamental freedoms, speaks of “everyone” and has been interpreted to extend to corps. Section 15 applies to "every individual", and has been restricted to only “natural persons”. ! But even some of the rights that have been framed in terms of “everyone” have been held to be inapplicable to corporations because of their nature. ! And so, the corporations can enjoy freedom of expression, but not freedom of religion because cannot hold a religious belief or any other belief ! Ie. The right to fundamental justice under s 7 does not apply to a corporation because are attributes of individuals not corporations ! Those rights that do not apply to corporations cannot be invoked by a corporation to obtain a remedy under s 24 ! R v Big M Drug Mart: SCC held that a corporation could invoke the right to freedom of religion in s 2(a) as a defence to a criminal charge of selling goods on a Sunday. The charge was laid under the federal Lord’s Day Act which the corporation successfully argued was unconstitutional on the ground that the Act abridged the freedom of religion of individuals. The corporation had standing to make this argument, despite the fact that s 2(a) did not apply to a corporation, because “no-­‐one can be convicted of an offence under an unconstitutional law” A foetus not a legal person, either at common law or civil law until the child is born by being separated alive from the mother (not entitled to a right to life under s 7 or any other right under the Charter) Singh v Minister of Employment and Immigration 1985: SCC held that anyone who entered Canada, however illegally, was instantly entitled to assert s 7 rights, which apply to “everyone” (in context of this case, everyone who entered Canada and made a refugee claim was entitled to a hearing before a person with authority to decide the issue) (b) Individual ! Section 15 confers its equality rights on “every individual” ! More specific than “everyone” “any person” “anyone” and probably excludes a corporation ! Substituted for “everyone” intending to “make clear that this right would apply to natural persons only” ! Within s 15, the reference to “discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability” also reinforced the exclusion of corporations: the listed attributes are all personal characteristics of human beings and only “natural origin” could apply to corporations as well. ! Even if s 15 does not extend to corporations, corporations will still be able to rely on s 15 as a defence to a criminal charge laid under a law that is invalid by virtue of unconstitutional discrimination against individuals (principle established in Big M Drug Mart) ! Does not include a foetus ! Does not include the estate of a deceased individual: s 15 rights die with the individual (A-­‐G Can. V Hislop 2007) (c) Citizen ! Generally a person need not be a Canadian citizen in order to invoke Charter ! “everyone” in s 7 has been held include “every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law” ! Citizenship is a required qualification for some rights: voting rights (S 3), mobility rights (s 6), minority language educational right (s 230 are conferred upon a “citizen” (d) Permanent resident ! The mobility rights of s 6(2) (but not s 6(1)) apply, not only to “every citizen” but also to ‘every person who has the status of a permanent resident of Canada” ! “permanent resident” is to be found in the federal Immigration and Refugee Protection Act” where it is defined (unhelpfully) as “a person who has acquired permanent resident status” !
Page 51 of 86 BURDEN OF RIGHTS [WHO HAS THE BURDEN TO FOLLOW CHARTER RIGHTS] (This is governed by s 32(1) of the Charter) (a) Both Levels of Government ! Section 32(1) expressly provides that the Charter applies to “the Parliament and government of Canada” and to “the legislature and government of each province”= makes clear that both level of government are bound by the Charter (b) Parliament of Legislature ! References in s 32 to the “Parliament” and a “legislature” make clear that the Charter operates as a limitation on the powers of those legislative bodies—any statute enacted by either Parliament or a Legislature which is inconsistent with the Charter will be outside the power of (ultra vires) the enacting body and will be invalid ! Parliament = federal legislative body, which consists (in the language of s 17 of the Constitution Act 1867) “of the Queen, Senate and House of Commons (Queen is represented by the Governor General who gives royal assent; senate is the upper house which is an appointed legislative chamber; house of commons is the lower house which is an elected legislative chamber) ! Legislature= provincial legislative body, which consists in the case of Ontario (in the language of s 69 of the CA, 1867), “of the Lieutenant Governor and of one house, the Legislative Assembly of Ontario” (c) Statutory Authority ! Any body exercising statutory authority, for example, ministers, officials, municipalities, administrative tribunals, is bound by the Charter ! Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter. ! Key characteristic of statutory authority: power of compulsion. Not power of obligation (via contract obligations) but compulary government action. ! There are many examples which illustrate that bodies or persons possessing statutory authority are often independent of the federal or provincial governments ! The Charter applies to the exercise of statutory authority regardless of whether the actor is part of the government or is controlled by the government – it is the exertion of a power of compulsion granted by a statute that causes the Charter to apply ! But there are cases which deviated from that position: ELDRIDGE V B.C (A-­‐G) 1997: held that the Charter was applicable despite the absence of any power of compulsion ! Issue was whether a hospital was bound by charter. They did not provide sign language as per s15 equality. ! British Columbia Act funded provision of health services ! Held that hospital implementing a specific government policy or program. ! HOGG says weak, does not apply to all hospitals. And that hospitals did not require statutory authority to administer health services, as they were already doing so prior to legislation. ! So, if there is an entity exercising statutory powers of compulsion, then they will be subject to Charter (Slaight): the result of the decision in Slaight is that some adjudicative bodies, such as administrative tribunals and labour adjudicators, are bound by the Charter (d) Government ! If an entity is part of the government, then the Charter will ordinarily apply to all of its actions. ! Charter applies to government action taken under prerogative powers (common law powers possessed only by government) and common law powers possessed by everyone ! Institutions controlled by government (agents): Here, not governmental 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 for it to be considered a government body (McKinney v University of Guelph – Court held that universities are NOT subject to the Charter, BUT colleges are) ! Entities implementing government programs: Entities will be subjected to the Charter not if they are characterized as ‘government’, but ALSO if they perform an act properly characterized as a government activity. This analysis involves looking not at the organization itself, but at the specific act which the organization performs. If the act is found to be an act of government, the organization is subject to the Charter with regards to that act (see Eldridge) ! The CONTROL TEST: Whether the gov’t has assumed control of the function. Existence of control is only guide to whether the function is one of government to which Charter applies. Here you look to the INSTITUTIONAL OR STRUCTURAL LINK ! Government “inaction” : s32 applies to all matters. If there is a positive obligation by the government, their inaction is caught under the Charter. Page 52 of 86 (e) Courts ! But in Dolphin Delivery, SCC stated that courts not part of government for purposes of s 32(1) of Charter (but has since been generally ignored) ! The Charter appears to apply to courts (BC Government Employees’ Union v BC), i.e. a court falls under the term “government” o “Court is acting on its own motion and not at the instance of any private party” and the courts motivation is “entirely public in nature rather than private” (f) Common law ! In Canada, if the applicable law is a rule of the common law, the Charter does not apply; if it is a rule of statute, it does apply (Dolphin Delivery) ! But it does influence the way the Charter is interpreted, and therefore the Charter indirectly applies to the common law (Hill v Church of Scientology) o In context of defamation suit – brought by private party, not part of his governmental duties his personal reputation. o Was still necessary to determine that the common law was consistent with Charter Values – and to modify the charter accordingly. (g) Private action ! The Charter regulates the relations b/w government and private persons, but it does not regulate the relations between private persons ! R v Buhay: two security gaurds open a locker smelling of weed, held to be not charter worthy, not actors of the state. o Yet the police opening the locker the second time was unreasonable search and seizure. o Security guards private actors. ! Private actions can be regulated by the state: o IF so, the statutory enforcement and action will be caught by the charter: o Ie. Statute giving citizens power of arrest. If violate charter.. REQUIRD CASES FOR THE APPLICATION OF THE CHARTER RIGHTS: ELDRIDGE v BC FACTS: A group of deaf individuals sought a declaration that the failure to provide public funding for sign language interpreters for the deaf when they received medical services violated s.15 of the Charter. ISSUE: Is the charter enforceable against hospitals, particularly with regards to the way they deliver medical services? REASONING: o There is no question that the Charter applies to provincial legislation. !
There is no doubt that the Charter also applies to action taken under statutory authority COURT " whether the Charter applies to the body employing the Act. ! Typically, courts seek to determine if the entity (e.g. hospital) is itself a government body for the purposes of s. 32. This involves an inquiry into whether the entity can, either by its very nature or by virtue of the degree of governmental control exercised over it, properly be characterized as ‘government’. o Hospitals cannot be characterized as government because they have autonomy as to who sits on their Boards, and the manner in which they hire staff and deliver health care. HOWEVER, an entity may be found susceptible to Charter analysis with respect to a particular ACTIVITY that can be ascribed to the government ! -­‐-­‐ This demands not an examination of the entity but the act itself. If the act is governmental in nature -­‐ for example, the implementation of a specific statutory scheme or a government program-­‐ the entity performing it will be subject to review under the Charter only in respect of that act. ! Health care is a keystone of government policy, so any organization providing health care (including hospitals) must do so in a way that conforms to Charter provisions. The BC Act (statute) funded the health provisions. RATIO: Entities will be subjected to the Charter not only if they are characterized as ‘government’, but ALSO if they perform an act properly characterized as a government activity. This analysis involves looking not at the organization itself, but at the specific act which the organization performs. If the act is found to be an act of government, the organization is subject to the Charter with regards to that act. VANCOVER TRANSPORTATION AUTH v CANADIAN FEDERATION OF STUDENTS (2009) ! The Charter applies not only to Parliament, the legislatures and the government themselves, but also to all matters within the authority of those entities ! There are two ways to determine whether the Charter applies to an entity’s activities: (1) By enquiring into the nature of the entity or (2) By enquiring into the nature of its activities. If the entity is found to be “government”, either because of its very nature or because the government exercises substantial control over it, all its activities will be subject to the Charter Page 53 of 86 [5] Override of Rights-­‐ CONSTITUTION ACT, 1982, S. 33 Section 33 !
S 33 of Charter of Rights provides: (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or 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 (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration (3) a declaration made under ss (1) shall cease to have effect 5 years after it comes into force or on such earlier date as may be specified in the declaration (4) Parliament or a legislature of a province may re-­‐enact a declaration under ss(1) S 33 enables the Parliament or Legislature to “override; s 2 or ss7 to 15 ! If a statute contains an express declaration that it is to operate notwithstanding a provision included in s 2 or ss 7 to 15 of the Charter, then by virtue of s 33(2) the statute will operate free from the invalidating effect of the Charter provision referred to in the declaration ! This limits (or abolises) one or more of the rights or freedoms guaranteed by s 2 or ss 7 to 15 ! If the override power did not exist (or if it were not exercised), such a statute would be valid only if it came within s 1 of the Charter: the courts would have to be persuaded that the statute came within “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” Rights that May be Overridden Applies only to rights in 2 and ss.7 to 15 of charter: ! s. 2-­‐ fundamental freedoms / ss. 7 to 14-­‐legal rights / .s 15-­‐ equality Does NOT include: ! ss. 3 to 5-­‐ democratic rights // s. 6-­‐ mobility rights // ss. 16 to 23-­‐ language rights // s. 24-­‐ enforcement provisions // s. 28-­‐ sexual equality ! In order to be effective under s 33(2), the declaration must refer specifically to the Charter provision that is to be overridden ! More than one provision, or even all (s 2 and ss 7 to 15) can be referred to (FORD v QUEBEC (A-­‐G)), but a declaration that did not specify any particular Charter provision would NOT be effective Five-­‐ Year Limit ! Section 33(3) is a sunset clause, under which an express declaration will automatically expire at the end of the 5 years ! S 33(4) permits the express declaration to be re-­‐enacted, but the re-­‐enacted declaration will also expire at the end of 5 years (s 33(5)) Specify the Declaration ! s 33 stipulates that the Parliament or Legislature must “expressly” declare that a statute is to operate notwithstanding a Charter right ! The express declaration contemplated by s 33(1): [1] Becomes a “manner and form requirement” that is essential to the validity of any statute enacted in violation of a provision contained in s 2 or ss 7 to 15 of Charter [2] Must be specific as to the statute that is thereby exempted from the provisions of the Charter [3] Must be specific as to the Charter right which is to be overridden o The declaration must be specific as to the statute, but blanket declarations, encompassing omnibus (compilation) statues, are allowed. They are allowed to reference only the act numbers, and not the specific possible violations – this would put too high a task on legislature to determine every possible breach (FORD v Quebec (A-­‐G) Retroactive Effect ! Before Ford, assumed that a decision striking down a statute for breach of the Charter could be retroactively reversed by the competent legislative body by the exercise of its override power ! Today, declaration CANNOT be retroactive (Ford) REQUIRED CASE FOR ‘OVERRIDE OF RIGHTS’ FORD V QUEBEC FACTS: Quebec lost initial case re signs in only French. Amended the law to retract out from constitution. The Quebec provincial legislature invoked the Notwithstanding clause to protect the amended legislation from any further judicial review under the Charter. When the five-­‐year time limit for the Notwithstanding declaration expired, it was not extended by the Quebec legislature. ! Quebec, opposed the Charter, wanted to create an automatic rule that would have ALL their legislation operate notwithstanding the charter. Page 54 of 86 ISSUE: 1) Whether legislation overriding multiple sections of the Charter is acceptable; 2) whether an all-­‐encompassing (omnibus) use of the override is valid (obiter); 3) whether a retrospective override clause is acceptable (obiter) Held: 1. YES s.33 declaration is sufficiently express if it refers to the section/subsection or paragraph of Charter which contains the provision to be overridden (need express language that the infringement on Charter rights would be sufficiently drawn to public attention). 2. Ominous reference to rights was sufficient; because a legislative body “might not be in a position to judge what provisions of the Charter might be successfully invoked against various aspects of the Act in question” 3. s.33 permitting “prospective derogation only.”—not retrospective COMMENTS: ! Use of s.33 would be politically crippling for most governments. Reality of political costs of invoking s.33 will keep governments in check. We have created a culture in which the use of the clause now would be met with political disapprobation Page 55 of 86 [6] Limitation of Rights-­‐ CONSTITUTION ACT, 1982, S. 1 Section 1 of the Charter of Rights ! = 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 ! S 1 guarantees the rights and freedoms set out in Charter but makes clear they are NOT absolute ! Judicial review of legislation under the Charter should proceed in 2 stages: st
1 stage = court must decide whether the challenged law has the effect of limiting one of the guaranteed rights (involves the interpretation and application of the provisions of the Charter that define the guaranteed rights) nd
2 stage is reached if challenged law does have this effect: court must then decide whether the limit is a reasonable one that can be demonstrably justified in a free and democratic society (involves the interpretation and application of s 1 of Charter) ! Prescribed by law= make clear that an act that is not legally authorized can never be justified under s 1, no matter how reasonable or demonstrably justified it may appear to be. What is a Right? ! Dickson CJ in Oakes: “the words free and democratic society” in s1 set values of a free and democratic society where there was an identity of values underlying the rights and their limits. Relationship with s1. and Rights: ! Close relationship b/w standard of justification required under s1 and the scope of guaranteed rights. ! If guaranteed rights get broad interpretation " court relaxes standard of justification under s1 to uphold legislation limiting the extended right. ! Example: if freedom of expression catches perjury or fraud, then foolish to have a strict standard of justification in order to regulate such harmful behavior. Burden of Proof of factual issues in Charter litigation: as per OAKES 1st stage = the burden of proving all elements of the breach of a Charter right rests on the person asserting the breach nd
2 stage= if reached that a Charter right has been infringed, the burden of persuasion shifts to government (or other party) seeking to support the challenged law (government need ONLY a “rational basis” for its legislation) (held in OAKES) !
!
It is for the government to persuade the court that the challenged law is a “reasonable limit” and that it “can be demonstrably justified in a free and democratic society” (established in R v OAKES) Court held the standard of proof was “the civil standard, proof by a balance of probabilities” Presumption of Constitutionality ! In Charter cases, there is no presumption of constitutionality (although the reading down principle of interpretation applies) ! Reading down = where a law is open to 2 interpretations (one unconstitutional and the other constitutional), the latter should be selected ! Yet there is deference in certain areas… Limits ! S 1 provides that that the Charter rights are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” ! Limits do not equal infringements. REASONABLE AND DEMONSTRABLY JUSTIFIED -­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐ (a) OAKES TEST ! 4 criteria to be satisfied by a law that qualifies as a ‘reasonable limit that can be demonstrably justified in a free and democratic society: (a) Sufficiently important objective; " (law must pursue objective sufficiently important) (b) Rational connection; " (law must be rationally connected to objective) (c) Least drastic means; " (Law must impair right no more than is necessary to achieve obj) (d) Proportionate effect " (Law must not have disproportionate severe effect on persons) PART 1: LAW MUST BE SUFFICIENTLY IMPORTANT OBJECTIVE TO JUSTIFY LIMIT o RARE: rarely will court reject legislative judgment that objective is sufficiently important to justifying a charter right. Identifying the Objective: o Difficult to determine the objective of a challenged law o The higher the level of generality at which a legislative objective is expressed, the more desirable the objective will appear and will become a serious problem for the justification of the law o Remember: only reason we search for the objective is to determine whether there is justification for infringement under the charter. So.. o Statement of the objective should be related to the infringement of the Charter, rather than to other goals. Page 56 of 86 o
o
o
o
Ie. RJR MacDonald v Canada: the challenged law banned advertising of tobacco products. Thus, the objective should not have been phrased as the protection of public health from the use of tobacco. It was said that the objective must be to prevent people in Canada from being persuaded by advertising and promotion to use tobacco products. (a narrower and more specific justification). Irwin Toy v. Quebec: SCC upheld a Quebec law that prohibited advertising directed at children under 13. The majority defined the objective of the law at a very low level of generality, as the protection of children (a vulnerable group) from advertising. Held the objective was “pressing and substantial”. (having defined the objective in narrow terms, it was then easy to find the proportionality tests were satisfied When does an objective achieve this degree of importance?? (per Dickson J in Oakes) ! THE IMPORTANCE OF OBJECTIVE (rare, only 2 cases failed this test) st
1 , it must be consistent with the value of a free and democratic society nd
2 , the objective must relate to concerns which are “pressing and substantial” & Not Trivial rd
3 , the objective must be directed to “the realization of collective goals of fundamental importance” A-­‐G of Quebec v. Ford 1988: Quebec law-­‐ requiring public signs to be solely in the French language. Court held law infringed freedom of expression and could not be justified under s 1. However, court recognized that the vulnerable position and enhancement of the language was a sufficiently important objective to justify a limit on freedom of expression. The law was struck down, not because of any doubt as to the legitimacy of the purpose, but because the banning of English was a disproportionate impairment of the rights of English speakers R v Big M Drug Mart 1985 (inadmissible objectives): court held the Lord’s Day Act which was a federal Sunday closing law, infringed the guarantee of freedom of religion. Its purpose, the court held was to “compel the observance of the Christian Sabbath. That purpose was indirectly contradictory of the Charter right and could not be a purpose that justified limiting the right. (court acknowledged that the secular objective of providing a common day of rest would be sufficiently important to justify overriding a Charter right (R v Edwards), but in this case it was a religious purpose) 3 rules emerge from the decision in Big M: a. An objective cannot provide for the basis for s 1 justification if the objective is incompatible with the values entrenched by the Charter of Rights b. An objective cannot provide for the basis for s 1 justification of the objective is ultra vires the enacting legislative body on federal distribution of powers grounds c. An objective cannot provide for the basis for s 1 justification if that objective did not in fact cause the enactment of the law (Cannot shift). PART 2: PROPORTIONALITY TEST(s) -­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐ [1] Rational Connection o The law must be rationally connected to the objective of the law o Determining how well the legislation has been tailored to suit its purpose. o The law must be carefully designed to achieve the objective in question; it should not be arbitrary, unfair, or based on irrational considerations o Benner v Canada 1997: law required persons born to a Canadian mother to apply for citizenship and pass a security check, while persons born to a Canadian father was entitled to citizenship automatically upon registering the birth in Canada. o The objective was said to be to screen potential citizens in order to keep dangerous people out (re: required security check). The court held that there was no rational connection between the objective and the discrimination. Children of Canadian mothers could not rationally be regarded as more dangerous than children of Canadian father Causation: o The essence of rational connection is a causal relationship between the objective of the law and the measures enacted by the law. o Often a difficult matter to establish by evidence and the SCC has not always insisted on direct proof of the causal relationship o La Forest J. in RJR-­‐ MacDonald v Canada said that a causal connection based on “reason” or “logic” would suffice, even though the evidence was “admittedly inconclusive” [evidential burden is low, deference] [2] Least Drastic Means [Minimum Impairment Test] " 0AKES FAILED HERE o The law must impair the right no more than is necessary to accomplish the objective. = the CENTRE of the inquiry into s 1 justification (for the majority of rd
cases this 3 step is the arena of debate) o
Page 57 of 86 o
This branch of the Oakes test can be described as the minimum impairment test because it insists that the limit on the Charter right be the minimum that is necessary to accomplish the desired objective o
# of laws that have failed the requirement of least drastic means: RJR MacDonald v Canada: the law failed the drastic means branch of s 1 inquiry because the total ban encompassed purely informational and brand-­‐ recognition advertising that played no role in persuading people to use tobacco products. The law was therefore struck down. Ross v New Brunswick: a board of inquiry order that a person employed in a non-­‐ teaching position by a school board must be fired if he continued his dissemination of anti-­‐semitic ideas has been held to be too drastic a means of rectifying a discriminatory climate in the school o
Rocket v Royal College of Dental Surgeons: Ontario’s prohibition on advertising by dentists has been held to be too drastic a means of maintaining high professional standards o In each of these cases the SCC held that other laws were available to the enacting legislative body which would still accomplish the desired objective but which would impair the Charter right less than the law that was enacted Margin of appreciation: o Dickson in OAKES: the only law that was qualified to enter into kingdom of validity was the law that impaired the right ‘as little as possible’. o But court must pay some degree of deference to legislative bodies o The majority in Edwards Books recognized this idea of a margin of appreciation – we look for a reasonable legislative effort to minimize the infringement of the Charter right, rather than insisting that only the least possible infringement could survive ! Law contained a Sabbatarian exemption for retailers who observed Saturday as the Sabbath. However limits on this. ! Margin of appreciation tolerated a number of Sunday trading laws. [3] Proportionate effect (whether effect is too high price to pay for benefit of law) o The law must not have a disproportionately severe effect on the persons to whom it applies o Requirement of “proportionate effect” requires a balancing of the objective sought by the law against the infringement of the Charter o
The question is whether the Charter infringement is too high a price to pay for the benefit of the law This part of the test however, has never influenced the outcome of a case, and it is redundant If the first part of the test is passed (sufficient objective), then this one should necessarily be passed as well-­‐ but the following case considered this argument and rejected it: ALBERTA v HUTTERIAN BRETHREN OF WILSON COLONY 2009: FACTS: AL traffic law required photograph of each holder of a licence. Court held the law limited the religious freedom of the Hutterian Brethren because they believed that the Bible forbade them from having pictures taken. HELD Majority said was justified under s1. Law passed first three steps of th
Oakes, but McClaclin made clear that the 4 step also had to be th
satisfied. She said that the 4 step was satisfied because the effects of the universal photo requirement outweighed the effects of the claimants religious rights. o She held, the answers lies in the fact that the first 3 stages of Oakes are anchored in an assessment of the law’s purpose. Only the fourth branch takes full account of the “severity of the deleterious effects of a measure on individuals or groups” st
th
o HOGG: finds distinction between 1 and 4 step a difficult one. o " THEREFORE: if objective is sufficiently important and is pursued by least drastic means, then it must fllow that the effects of the law are an acceptable price to pay for the benefit of the law. Thus a positive answer to step one =positive answer to step 4. Application to Qualified Rights (qualified by own notions of reasonableness) ! Unclear whether s 7 Charter breach could be justified (ie. Can a law not in accordance with the principles of fundamental justice be justified as a “reasonable limit”) o R v Morgentaler (No 2)(1988) SCC= probably not o The finding that the abortion law offended fundamental justice virtually entailed a finding that the law was not a “reasonable limit” and was not “demonstrably justified in a free and democratic society” Application to Common Law ! Oakes test applies to common law limits on rights. It is well established that a rule of the common law may be a limit “prescribed by law” under s 1, and in 2 cases common law rules in derogation of Charter rights have been held to be justified under s 1 (ie, RWDSU v Dolphin Delivery; BCEGU v B.C.) Page 58 of 86 [7] Freedom of Conscience & Religion-­‐CONSTITUTION ACT, 1982, S. 2(a) Distribution of Powers [both legislatures have competence] ! There are cases where it has been held or assumed that any law restricting the freedom of religion is within exclusive federal competence ! On the other hand, s 92(12) expressly allocated to the provincial Legislatures the power over the solemnization of marriages, a subject with important religion dimensions; and s 93(3) of denominational schools ! Legislation concerning religion could be valid by either Parliament or provinces " (Edwards Books, SCC 1986) ! Since the adoption of the Charter of Rights in 1982, any law that affects freedom of religion will be vulnerable to challenge under s 2(a) of the Charter SECTION 2(A) OF THE CHARTER ! Guarantees to “everyone” the “fundamental freedom” of “freedom of conscience and religion” ! Like other charter rights, s 2(a) is subject to s 1 (the limitation clause) ! A law that limits freedom of conscience and religion will be valid under 1 if it comes within the phrase “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” Freedom of Conscience ! Reference to “conscience”, would protect systems of belief which are not theocentric (centred on a deity (holy being)), and which might not be characterized as religions for that reason (or for other) " R v Morgentaler Freedom of Religion (Leading case = R v Big M Drug Mart 1985:) o SCC struck down the Lord’s Day Act, a federal statute that prohibited (with exceptions) commercial activity on Sunday. Court held the purpose of the Act, derived from the history and terms of the Act, was to “compel the observance of the Christian Sabbath”. Purpose was an infringement of freedom of religion of non-­‐ Christians, because by virtue of this freedom, “government may not coerce individuals to affirm a specific religious practice for a sectarian purpose.” Definition of religion offered in this case by Dickson J: o ‘the essence of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination’= s 2(a) protects religious practices as well as religious beliefs Sunday Observance Cases: ! Issue in these cases was whether people should have the ability to make a profit on Sundays; challenges were brought by companies who wished to open their stores on Sundays in order to maximize profits (1) R v Big M Drug Mart " purpose compelled Sunday observance (2) R v Edwards Books" : o Ontario’s Retail Business Holiday Act was under challenge. The Act prohibited retail stores from opening on Sunday. Legislative history of the Act showed the purpose was the secular one providing a common pause day for retail workers. Court held nonetheless that the law infringed s 2(a), because its effect was to impose an economic burden on those retailers who observed a Sabbath on a day other than Sunday. o Court yet upheld the law under s 1 of Charter. The secular purpose of providing a common pause day was sufficiently important to justify a limit on freedom of religion. o However the Act did in fact contain a “sabbatarian exemption” for retailers who closed their stores on Saturdays, but the exception was hedged with a size restriction that made it applicable only to small stores. Court held that the law pursued its objective by the least drastic means, with a minimum intrusion on freedom of religion ! The Sunday-­‐ closing cases, which established that there is a constitutional obligation under s 2(a) to accommodate those persons whose religion calls for observance of a Sabbath on a day other than Sunday Other Religious Practices ! The idea that freedom of religion authorizes religious practices only so far as they do not injure others has been abandoned by the SCC in favour of an unqualified right to do anything that is dictated by a religious belief (B.(R.) v. Children’s Aid Society (1995) o In this case SCC held that the decision of parents to prohibit doctors from giving a blood transfusion to their baby was protected by freedom of religion because it was dictated by their beliefs as Jehovah’s witnesses. o Held: La Forest: Right to choose medical treatment for child in accordance with their religious belief is of fundamental importance in freedom of religion. YET statutory procedure was justified under s 1: o Iacobucci and Major JJ took the view that “a parent’s freedom of religion does not include the imposition on the child of religious practices which threaten the safety, health or life of the child.” Page 59 of 86 Ross v New Brunswick School District No. 15 1996 ! SCC held that a damaging practice was protected by freedom of religion (namely the dissemination of the opinion that Christian civilization was being destroyed by an International Jewish conspiracy). ! Ross the school teacher disseminated it not in his teaching but in the form of books, letters to the newspapers, etc). Ross has been removed from his teaching position by the order of a board of inquiry. ! Court held that order infringed Ross’s freedom of religion (as well as freedom of expression). o However the court held that most of the order could be justified under s 1 as a measure to remedy an anti-­‐semitic environment in the school. This justified Ross’s removal from his teaching position to a non-­‐ teaching position with the school board, but it did NOT justify a part of the order that required that Ross be dismissed from a non-­‐ teaching position if he resumed his anti-­‐semitic activity. o La Forest – did not discuss if anti-­‐semitic activity was religious, held that its DEFINITION was to be given a broad interpretation. (did not question if Ross’s writings were honest religious statements). ! The definition of the religious practices that are protected under s 2(a) was expanded even further in " SYNDICAT NORTHCREST v AMSELEM 2004: subjective test of ‘belief’ FACTS: Condominium owners who were orthodox Jews, claimed the right to build “succahs” (temporary dwellings) on the balconies of their condominium apartments where they would live for nine days each year for the festival of ‘succot’. The condominiums by-­‐ laws prohibited “constructions of any kind whatever” on the balconies. Other condo owners sought an injunction to prevent building of the succahs. Purpose of the by-­‐law was to maintain the aesthetic external appearance of the building and the practical purpose of keeping the balconies free of obstruction as fire escape routes. HELD: Claimants were entitled to erect their succahs in defiance of the by-­‐laws Iacobucci J (majority): ! Defined protected religious practice in an extraordinarily broad fashion. The practice need not be part of an established belief system, or even a belief system shared by some others; it could be unique to the claimant. The practice need not be perceived as obligatory by the claimant; “voluntary expressions of faith” were equally protected. All that was necessary to qualify a practice for Charter protection was the claimant sincerely believed that the practice was “of religious significance” Test was wholly subjective. Remarkable feature of the majority opinion in this case is that a person also has a constitutional right to act on those views Dissent-­‐ o Bastarache: Religion is a collective exercise. The test cannot be a personalized approach. o Binnie: You should only be able to use 2(a) as a shield to protect against govt interference. Once you sign a contract, you can’t use freedom of religion as argument anymore. o
ALBERTA v HUTTERIAN BRETHREN OF WILSON COLONY 2009: FACTS: ! A colony of Hutterian Brethren brought proceedings against the government of Alberta to obtain an exemption, on religious grounds, from the requirement of provincial law that a driver’s licence must display a photograph of the holder. They believe that having their photos taken (even under compulsion of law) is forbidden by the Bible. ! Alberta (in common with the other provinces) requires a driver’s license to display a photo of the holder. The purposes are to enable police to identify any driver involved in an accident or suspected of driving offence. ! In 2003 was the establishment by the province of a data bank of digital photos of all licensed drivers, which was to be used to prevent identity theft and therefore all drivers had to have their photos in the data bank. Reason for amending in 2003 was to make the photo requirement universal. SC HELD: ! The Hutterian claimants had a sincere religious belief that prohibited their being photographed and that belief was protected by s 2(a). HOWEVER, • The majority held that universal photo requirement was justified under s 1: it served an important purpose and did not impose a severe burden on the claimants, who could avoid the requirement by using alternative means of transport. The requirement was a reasonable limit on freedom of religion and the Hutterian claimants were not entitled to an exception DISSENT: Three justices dissented and would have not required the Hutterites to be photographed to be licensed. In three separate opinions, Justices Abella, LeBel, and Fish found that this policy was not minimally impairing, since it would not significantly enable identity theft to allow the exceptions, and it would have a large detrimental effect on the Hutterites' way of life, since they would have to employ outsiders to perform all their necessary driving. Page 60 of 86 Waiver of Religious Practices ! Bruker v Marcovitz 2007: indicates that you can contract to withhold a religious practice/ belief, although Syndicat Northwest indicates you cannot (Binnie J argues in dissent that it impacts other’s rights as well). Religious Marriage REFERENCE RE: SAME SEX MARRIAGE 2004: !
Court was asked if Parliament can enact a bill legalizing marriage for civil purposes: o Held that parliament could do so under its power over marriage s91(26) !
Does the Freedom of Religion Guaranteed by Section 2(a) of the Charter Protect Religious Officials From Being Compelled to Perform Same-­‐Sex Marriages Contrary to Their Religious Beliefs? o The concern here is that if the Proposed Act were adopted, religious officials could be required to perform same-­‐sex marriages contrary to their religious beliefs. o If a promulgated statute were to enact compulsion, we conclude that such compulsion would almost certainly run afoul of the Charter guarantee of freedom of religion, given the expansive protection afforded to religion by s. 2(a) of the Charter. (R v Drug Mart) !
!
The right to freedom of religion enshrined in s. 2(a) of the Charter encompasses the right to believe and entertain the religious beliefs of one’s choice, the right to declare one’s religious beliefs openly and the right to manifest religious belief by worship, teaching, dissemination and religious practice. The performance of religious rites is a fundamental aspect of religious practice. It therefore seems clear that state compulsion on religious officials to perform same-­‐sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter. Page 61 of 86 [8] Freedom of Expression-­‐ CONSTITUTION ACT, 1982, S. 2(b) Section 2(b) of the Charter ! Guarantees to “everyone” the “fundamental freedom” of: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication ! This section is also subject to s 1(the limitation clause) of the Charter. A law that limits freedom of expression will be valid under s 1 if it comes within the phrase “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society “ st
! For all charter rights, there is a 2 stage process: 1 must ask whether the law nd
has the purpose or effect of limiting the relevant right; 2 the issue is whether the law can be upheld under s 1 if there is an infringement. But the unqualified language of s 2(b), reinforced by the broad interpretation that has been given to that language, means that, in most of the freedom of expression cases, it is easy to decide that yes, the impugned law does limit s 2(b) Distribution of Powers (a) Political speech ! Alberta Press case 1938: SCC struck down an Alberta statute that compelled newspapers in Alberta to publish a government reply to any criticism of provincial government policies. Duff C.J. and Cannon J asserted that free political discussion (“the breath of life of parliamentary institutions) was so important to the nation as a whole that it could not be regarded as a value that was subordinate to other legislative objectives; nor could it be regarded as a local or private matter (s92(16)) or as a civil right “in the province” (s 92(13)). It followed that it was outside the power of the provinces, and within the exclusive power of the federal Parliament (b) Provincial power ! The provincial power over speech, while it will not extend to the regulation or prohibition of political ideas, does authorize the regulation of speech on commercial or local grounds ! The tort of defamation for example is provincial, despite its impact on speech because the redress of injury to reputation supplies a dominant tortious aspect to the law and the law of torts is within provincial power (s 92(13)). ! Advertising is within provincial jurisdiction because it is part of the regulation of business and of consumer protection that is within provincial power (s 92(13)). (c) Federal power ! Power to regulate political speech; to make particular kinds of speech criminal as it has done in the crimes of fraud, obscenity, hate propaganda an communicating for the purposes of prostitution; and power to regulate speech in the media that come within federal jurisdiction, namely, radio and television Reasons for Protecting Expression ! A number of rationales including: it’s role as an instrument of democratic government (as expressed in Switzman v Elbling when Rand J said that parliamentary government was “ultimately governed by the free public opinion of an open society” and it demanded “the condition of a virtually unobstructed access to and diffusion of ideas” and Abbot J said that “the right of free expression of opinion and of criticism” were “essential to the working of a parliamentary democray such as ours”; it’s role as an instrument of truth; the instrument of personal fulfillment. (Irwin Toy accepted each of these reasons for protecting freedom of expression) ! The breadth of this right is entailed by acceptance of the personal fulfillment rationale (e.g. R v Sharpe: there was a constitutional challenge to the offence of possession of child pornography; the SCC acknowledged that such material made no contribution to democratic government and made no contribution to the search for truth, but the Court held that it should be constitutionally protected because of its role as an instrument of personal fulfillment) Meaning of Expression (a) Definition of expression ! SCC has defined “expression” as: “activity is expressive if it attempts to convey meaning” (R v Keegsta; Irwin Toy) ! There isn’t much activity that is NOT included in this definition. But what is definitely excluded is that which is “purely physical and does not attempt to convey meaning” (Irwin Toy) – parking a car for expressive purpose = included (b) Criminal expression ! Prostitution Reference 1990: court held that communication for the purpose of prostitution, which was an offence under the Criminal Code, was protected expression under s 2(b) (a majority upheld the law under s 1) . ! Activities should not be denied s 2(b) protection “solely because they have been made the subject of criminal offences” (Keegstra-­‐ ie hate propaganda offences limits s 2(b) but has been saved under s 1) (c) Violence ! Expressive activity that takes the form of violence is not protected (Irwin Toy) Page 62 of 86 (d) Content neutrality week5 Slide 10
! The content of a statement cannot deprive it of the protection accorded by s 2(b) no matter how offensive it may be (eg Keegstra= SCC held that the promotion of hatred against Jews is protected by s 2(b)) ! Deliberate falsehoods are protected by s 2(b) (R v Zundel; R v Lucas) ! The implication of this is that s 2(b) extends to much activity that isn’t worthy of constitutional protection Ways of Limiting Expression (a) Prior restraint ! Most severe restriction is a “prior restraint” on publication ! = a law that prohibits the publication of particular material either absolutely or under a requirement of prior approval by a censor ! Ie. Censorship of films restrictions on the importation of books and magazines, restrictions on access to the courts etc (b) Border control ! Prohibited material for example can be stopped and confiscated at the border, with custom officials serving as the censors. Little Sisters Books – court upheld obscenity provision / legislation, but held that the specific acts were discriminatory. (c) Penal prohibition ! Most common restriction on speech is a prohibition coupled with a penal sanction, for example, the Criminal Code offences of perjury or counseling suicide. To the extent that the prospect of punishment deters the uttering of the prohibited expression, a legal prohibition operates in the same way as a prior restraint (d) Forced exception ! Occasionally a person is forced by law to make a statement. ! For example, in RJR MacDonald v Canada 1995, a federal statute required cigarettes and other tobacco products to be sold in packages that displayed prescribed warnings of the health dangers of smoking. The manufacturers were prohibited from displaying any information of their own on the packages (except for the name of the product). The requirement of unattributed warnings was struck down. But New law, directed by health Canada, accepted. (e) Language requirement ! A Quebec law requiring that public signs and advertisements be in French only has been struck down as a violation of s 2(b) ! Freedom of expression includes the freedom to express oneself in the language of one’s choice (Ford v Quebec) (f) Time, manner and place ! = the least severe form of restriction on expression is the regulation of the time, manner and place of expression ! For example, a law might prohibit the use of cartoons in advertising directed at children, or a law might authorize a public official to stipulate the time and route of a parade. These laws restrict expression and are therefore in violation of s 2(b); but, because they do not regulate the content of expression, a court would be likely to uphold the laws under s 1. Commercial Expression (a) Protection of Commercial expression ! Commercial expression is constitutionally protected (Ford v Quebec) ! Commercial expression, of which the most important example is advertising, is expression designed to promote the sale of goods and services, and is protected. ! Two reasons to protect: (1) expression literally falls within the meaning of ‘expression as per SCC” and (2) Difficult to distinguish commercial expression from other types. (b) Advertising Restrictions ! E.g. Irwin Toy: The SCC upheld a law that prohibited all commercial advertising directed at children under 13 (the protection of a particularly vulnerable group was a sufficiently important purpose to be upheld under s 1). Court was divided on whether it was a reasonable limit / justified (not a complete ban) ! E.g. Rocket v Royal College of Dental Surgeons: Dentists were prohibited from advertising their services, and the restriction was struck down as being overly broad. (complete ban). ! E.g. RJR Macdonald v Canada AG: MacDonald (Tobacco Company) disputed legislation involving ban on tobacco advertising. All parties accepted that legislation breached s. 2(b). The court held that there was enough evidence to show a rational connection between an advertising ban and the objective of reducing smoking, but that there is no rational connection between the general ban of ads, and a decreasing consumption of cigarette smoke. But Court could not accept that a total ban on all forms of advertising, including purely informational advertising, was the least drastic means of accomplishing the objective, thus failing on the minimum impairment limb. o Majority held that the legislation would not have breached freedom of expression had it been targeted at things like ‘recruitment of new smokers’ or ‘young people’ or association of smoking with things cool/hip (delineated categories, rather than all-­‐encompassing ban). Because it was a general ban, the majority held that it overly impaired 2(b) freedom. Page 63 of 86 (c) Commercial signs ! Commercial signs are protected by s 2(b) ! R v Guignard: A municipal by law prohibited advertising signs and billboards except in industrial zones of the municipality. The defendant was prosecuted under the by-­‐law for erecting a sign on his property complaining about the delays of his insurance company in settling a claim. Because the sign named the insurance company, It fell within the by-­‐law’s definition of an advertising sign (despite its negative message) The SCC held that this infringed G’s right to put up a sign on his property, and the limit could not be justified under s 1 (the Court decried the law as arbitrary and disproportionate to any benefit that it secures for the municipality) Picketing ! = the activity of members of trade union on strike, who will assemble outside a workplace, often carrying signs ! There is a communicative element to a picket line and therefore it constitutes “expression” within s 2(b) (Dolphin Delivery) ! Picketing is protected by s 2(b) Hate Propaganda ! = material that promotes hatred against minority groups R v Keegstra 1990: o Court rejected the notion that there any content based restrictions on the s 2(b) right. Section 2(b) covered all messages, “however unpopular, distasteful or contrary to the mainstream.” The court also rejected the notion that s 2(b) could be narrowed by reference to the equality rights of s 15 (or any other rights). o It followed that Mr K, a school teacher who had been found guilty of making anti-­‐semitic statements to his students, has been engaged in a constitutionally protected activity. But the court went on to uphold the criminal offence under s 1. ! Purpose/Objective of Hate Propaganda law is to promote equality and to lessen hatred against these groups (S15). Clear to see how this law promotes… Defamation ! The tort of defamation provides a civil remedy for a person whose reputation has been damaged by false statements made by the defendants ! In Hill v Church of Scientology, the SCC held that false and injurious statements are not deserving of much protection and are outside the core values protected by s 2(b) Pornography • Attempts to ban materials based on obscenity are based on public morality. • Pornography, including obscenity is protected under charter s2b since there are no content based restrictions on s2b. • R v Butler: charged with operating sex obscenity shop and possessing under Criminal Code definition of “obscenity”. Prohibition was caught under s1: “undue exploitation of sex materials which (1) portray explicit sex w/ violence, (2) explicit sex without violence but in degrading dehumiliating way – perceived by public opinion to be immoral. Access to Public Property ! First, because the Charter does not apply to private action, s 2(b) confers no right to use private property as a forum of expression. With respect to PUBLIC property, since the Charter applies to governmental action, s 2(b) is potentially applicable ! General rule (and if the circumstances are appropriate), is that the right to public property is protected for expression purposes (Committee for the Cth of Canada v Canada; Ramsden v Peterborough) ! The MONTREAL v 2952-­‐1366 QUEBEC CASE is the authority for the applicability/scope of the right: A strip club in Mtl set up a loudspeaker at its street entrance which it used to broadcast music and commentary that accompanied the show within. The club was charged under a by law that prohibited noise produced by sound equipment that could be heard outside a building. The broadcast conveyed a message about the show that was going on in the club, and so that was an expression. Although the message originated in private premises where s 2(b) would not apply, it was the transmission onto public property (the street), that was prohibited by the by law. The by law was challenged. ! In determining whether the expression was protected, the Court formulated a test for the application of s 2(b) on public property: “ask....whether the public place is one where one would expect that expression in that place does not conflict with the purposes which s 2(b) is intended to serve, namely: (1) democratic discourse (2) truth finding and (3) self fulfilment” ! In this case, the streets “are clearly areas of public, as opposed to private, concourse, where expression of many varieties has long been accepted”. Therefore the club’s broadcast into the street was protected by s 2(b). the majority went on to hold that the by-­‐law was justified as a reasonable limit under s 1, despite its lack of standards with respect to the level or effects of the prohibited noise. Page 64 of 86 Access to Courts 1. Fair trial concerns ! “freedom of express” is explicitly guaranteed in s 2(b) ! The freedom of the press occasionally comes into conflict with the right of persons accused of crime to receive a fair trial. For example pre trial publicity may bias potential jurors or judge and may damage the reputation of someone subsequently exonerated of the charge and extensive publicity may impair their capacity or public perception for neutral adjudication 2. Restrictions on reporting ! Freedom of process includes the freedom to publish reports of proceedings in court. But this isn’t an unqualified right (e.g. there can be restrictions where the purpose of the restriction is to protect the identity of complainants in sexual assault cases: Canadian Newspapers Co v Canada ! The relevant test/standard to be applied in these types of cases is that court proceedings are to be open UNLESS disclosure would subvert the ends of justice or unduly impair its proper administration (Toronto Star Newspapers) 3. Restriction on access ! Freedom of the press also includes the right to be present in court (Edmonton Journal v Alta) ! In Re Vancouver Sun, the SCC emphasized that the “open court principle” was guaranteed by s 2(b), and it could be limited by s 1 only if the standards of justification in Dagenais and Mentuck were satisfied. Although those cases concerned publication bans the same principles applied to orders limiting access to court proceedings. Those principles were: (a) that the order is “necessary in order to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk”; and (b) that “the salutary effects of [the order] outweigh the deleterious effects on the rights and interests of the parties and the public” Issue: whether the provisions of the by law prohibiting noise on street were constitutionally valid. Principle: ! A. Does Article 9(1) of the by-­‐law infringe s 2(b) of the Charter? o 1. Did the noise have expressive content that would bring it within s 2(b) protection. Yes o 2. If so, does method or location of this expression remove that protection? ! Test for whether the expression was protected for the application of s 2(b) on public property: • “ask....whether the public place is one where one would expect that expression in that place does not conflict with the purposes which s 2(b) is intended to serve, namely: (1) democratic discourse (2) truth finding and (3) self fulfilment” ! took into consideration !
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REQUIRED CASE FOR FREEDOM OF EXPRESSION MONTRÉAL (CITY) v. 2952-­‐1366 QUÉBEC INC Facts: ! A strip club in Mtl set up a loudspeaker at its street entrance which it used to broadcast music and commentary that accompanied the show within. The club was charged under a by law that prohibited noise produced by sound equipment that could be heard outside a building. 3.If the expression is protected by s. 2(b) does the bylaw infringe that protection, either in purpose or effect o Yes. City’s ban on noise limits free expression B. is it justified under s. 1 o Pressing and substantial? YES—combating noise pollution =serious o Proportionate— ! There is a rational connection b/c noise bothers people ! It is a minimal impairment – no other way to deal with it ! Proportionate effect—by law is valid. Held: the streets “are clearly areas of public. Therefore the club’s broadcast into the street was protected by s 2(b). the majority went on to hold that the by-­‐law was justified as a reasonable limit under s •
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(a) The historical or actual function of the place; (b) Whether other aspects of the place suggest that expression within it would undermine the values underlying free expression [E.g. Is the space in fact essentially private, despite being government-­‐owned, or is it public? Page 65 of 86 [9] Life, Liberty and Security of the Person-­‐ CONSTITUTION A, 1982, S. 7 Section 7 of the Charter ! ‘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. ! Cases generally assume that there is no breach of s 7 unless there has been a failure to comply with the principles of fundamental justice ! Section 7’s protection is limited to “life, liberty and security of the person”, a phrase which does not include property (as in s 1(a) of the Canadian Bill of Rights) and does not include a determination of rights and obligations respecting economic interests (as in s 2(e) of Canadian Bill of Rights) o Affords no guarantee of compensation or even of a fair procedure for the taking of property by government o Affords no guarantee of fair treatment by courts, tribunals or officials with power over the purely economic interests of individuals or corporations ! Canadian Bill of Rights (which applies only to federal laws) remains in force, and ss 1(a) and 2(e) are of continuing importance because their coverage is broader than s 7 Distribution of Powers over Legal Rights ! s 7 is the first of 8 section (ss 7 to 14) of the Charter that are grouped under the heading “Legal Rights” ! ‘legal rights’ doesn’t have a precise meaning but includes rights of person within the criminal justice system, limiting the powers of the state with respect to investigation, search, seizure, arrest, detention, trial and punishment. But section 7 in particular spills over into civil justice as well. ! The distribution of powers between the federal Parliament and the provincial Legislatures over the matters loosely encompassed by the vague term “legal rights” depends upon the characterization of each law Who is Covered? (a) Corporations ! Normally “everyone” is apt to include a corporation as well as an individual BUT SCC held in the context of s 7 “everyone” does not include a corporation ! Corporation is incapable of possessing “life, liberty or security of the person” because these are attributes of natural persons. ! But corporations can use s 7 to invalidate criminal provisions (when a corporation is a defendant to a prosecution, the corporation is entitled to defend the charge on the basis that the law is a nullity (b) Immigrants ! “everyone” in s 7 includes illegal immigrants to Canada ! Singh v Minister of Employment and Immigration 1985: s 7 could be asserted by “every human being who is physically present in Canada and virtue of such presence amenable to Canadian law”, Wilson J meant that any illegal immigrant who claimed to be a refugee was entitled to a hearing before an official or tribunal with authority to determine the issue (c) Foetus ! “Everyone’ does not include a foetus and so is not entitled to a right to life ! SCC has used s 7 to strike down restrictions on abortion, the reasoning being that the restriction deprived the mother of her right to liberty or security of the person Burden of s. 7 ! S 7 like all other Charter rights, applies only to “governmental action: as defined in s 32 of Charter What is Covered? DEFINITIONS (a) LIFE ! So far as “life’ is concerned, the section has little work to do, because governmental action rarely causes death ! But excessive waiting times for treatment in the public health care system in Quebec increased the risk of death and were a violation of the right to life (as well as security of the person) (Chaoulli v Quebec) ! Does not include a foetus (b) LIBERTY (i) Physical liberty • “liberty” includes freedom of physical restraint (so any law that imposes the penalty of imprisonment, whether the sentence is mandatory or discretionary, is by virtue of that penalty of a deprivation of liberty, and must conform to the principles of fundamental justice) ! Transfer of a prisoner to a higher level prison deprives liberty (May v Ferndale) ! Although “liberty” is generally taken to mean “physical liberty”, the majority in Blencoe said liberty also deals with a person’s ability to make fundamental personal choices o Imprisonment o Fingerprinting (R v Beare) o Give oral testimony o Not to loiter in or near schools, playgrounds, public parks etc Page 66 of 86 Not a deprivation: o A law that imposes only a fine is not a deprivation and need not conform to the principles of fundamental justice o Suspension of driver’s license (Buhlers v B.C.) (ii) Economic liberty ! Not included (iii) Political liberty ! “liberty” does not include freedom of conscience and religion, freedom of expression, freedom of assembly, freedom of association and the right to vote and be a candidate for election, or the right to travel. These rights are all guaranteed elsewhere in the Charter of Rights and should be excluded from s 7 (c) SECURITY OF THE PERSON • Abortion law in Criminal Code which restricted abortions and which resulted in delays in treatment and which ultimately increased risk to women’s health, was held to deprive women of security of person (Morgentaler No 2) • Law which forbid the purchase of private health insurance was said to infringe security of person, because it ultimately led to delays in treatment, which the effect of putting lives at risk (Chaoulli v Quebec) [Note: majority found this breached Quebec charter, which doesn’t use the phrase “fundamental justice”. So it will take another case to determine whether they are breach of the Canadian Charter] • Includes control over one’s body (Rodriguez – assisted suicide case • Protects psychological integrity (New Brunswick v G.(J.)) and protects against state induced psychological stress, such as where there has been excessive delay caused by administrative tribunals (Blencoe) FUNDEMENTAL JUSTICE: (a) Procedure and substance ! The term “fundamental justice” covers substantive as well as procedural justice (BC Motor Vehicle Reference) ! This is unlike how the term was used in the Canadian Bill of Rights. There, it was used as an equivalent of “natural justice”, which are rules of procedure (e.g. requirement of a hearing, unbiased adjudication). In that context, the courts would not be entitled to review the substantive justice of the deprivation ! Further, the legislative history of s 7 makes clear that the framers thought that “fundamental justice” meant natural justice ! Lamer J in BC Motor Vehicle Reference gave 3 reasons for extending fundamental justice beyond procedure: !
1. Words “fundamental justice” are literally broader in scope than other formulations that could have been used, such as “natural justice” 2. Expansion of the concept of ‘fundamental justice’ has the effect of expanding the protection of life liberty and security of the person 3. S 7 is a kind of general residuary clause for all of the “legal rights” of the Charter (controversial issue) (b) Definition of fundamental justice ! In BC Motor Vehicle, it was said that “the principles of fundamental justice are said to be found in the basic tenets of the legal system” ! This is a vague definition, but later decisions haven’t done much better. ! Later decisions indicate that there is little agreement as to what the basic tenets of our legal system are ! In fact, some cases do not even rely on the “basic tenets of our legal system” definition (Cunningham-­‐, where it was said in relation to fundamental justice: “The question is whether, from a substantive point of view, the change in the law strikes the right balance between the accused’s interests and the interests of society” ! The variety of outcomes re: scope of principles of fundamental justice can be accounted for only by the enormous discretion that the SCC has assumed for itself under the rubric of fundamental justice ! In R v Malmo-­‐Levine, the Court postulated 3 requirements for a rule to qualify as a “basic tenant of the legal system and therefore a principle of fundamental justice”: (1) The rule must be a legal principle (2) There must be significant societal consensus that it is fundamental to the way in which the legal system ought to fairly operate (3) The rule must be capable of being identified with sufficient precision to yield to a manageable standard ! E.g., in Canadian Foundation for Children, it was argued that a principle of fundamental justice was “the best interests of the child”. The SCC upheld the 3 requirements above, and said that although “best interests” is a legal principle, it was not fundamental to the legal system Principles of Fundamental Justice ! No imprisonment without fault; no overbreadth, no disproportionality; no arbitrariness; no vagueness Page 67 of 86 4 WAYS OF DEMONSTRATING THAT PRINCIPLES OF FUNDAMENTAL JUSTICE HAVE BEEN VIOLATED: 1. Overbroad Laws ! SCC established doctrine of “overbreadth” in R v Heywood, which applies to a law that is broader than necessary to accomplish its purpose ! Overbreadth is a breach of the principles of fundamental justice and therefore a basis for a finding of unconstitutionality in a law that affects life, liberty or security of the person ! If you conclude that there is overbreadth and, therefore, a breach of principles of fundamental justice, then the law will almost necessarily fail the s 1 analysis as well, because it will fail the minimum impairment test ! There are practical and theoretical difficulties with this doctrine though (e.g. a judge who disapproves of a law will always be able to find that it is overbroad) ! In Heywood, law was struck down b/c direct restraint on liberty of those whom it applied because their access to schoolyards, playgrounds, parks and bathing areas was restricted. 2. Disproportionate Laws ! SCC established doctrine of “disproportionality” in R v Malmo-­‐Levine (2003) which is a breach of the principles of fundamental justice and therefore a basis for a finding of unconstitutionality in a law that affects life, liberty and security of the person ! The doctrine requires the court to determine: (1) whether a law purses a “legitimate state interest”; and if It does (2) whether the law is grossly disproportionate to the state interest 3. Arbitrary Laws ! A law is arbitrary if it “lacks a real connection on the facts to the purpose of the law is said to serve” (Chaoulli v Quebec, per McLachlin CJ) ! Arbitrary laws were offensive to fundamental justice 4. Vague Laws (a) void for vagueness ! A vague law violates the principles of fundamental justice which causes a breach of s 7 if the law is a deprivation of life, liberty or security of the person ! A vague law offends 2 values that are fundamental to the legal system: (1) the law does not provide fair notice to persons of what is prohibited, which makes it difficult for them to comply with the law. (2) the law does not provide clear standards for those entrusted with enforcement, which may lead to arbitrary enforcement Prostitution Reference: it was argued (among other things) that the offence of communicating for the purpose of engaging in prostitution was in breach of s 7 because the offence was unconstitutionally vague (b) Standard of Precision ! What is the “constitutional standard” of precision that a law must meet in order to avoid the vice of vagueness? ! Nova Scotia Pharmaceutical case-­‐ a number of tests were suggested: o Whether the law is “intelligible” o Whether the law sufficiently delineates “an area of risk” o Whether the law provides “an adequate basis for legal debate” (this last one is the least useful because almost any provision, no matter how vague, could provide a basis for legal debate). HOWEVER, it was the legal debate test that was evidently preferred and employed in subsequent cases ! Or more simply and perhaps the appropriate test – ask whether the law upholds the 2 values which the rule against vagueness is supposed to protect: (1) is there fair notice to citizens?; (2) Is there a limitation of enforcement discretion? Other Things to Consider Re: section 7 (1) Absolute and Strict liability (a) Absolute liability offences ! (offence consists simply of doing the prohibited act; no requirement of fault, either mens rea or negligence; defendant could be convicted even if he had no intention of breaking the law and also exercised reasonable care to avoid doing so) ! B.C Motor Vehicle Reference 1985: SCC held that absolute liability was a denial of “the principles of fundamental justice”. Since the offence carried a short term of imprisonment, a conviction would mean a deprivation of ‘liberty”. The offence was therefore declared to be in violation of s 7 and of no force or effect. ! An offence of absolute liability that carries the penalty of imprisonment is an infringement of s 7 of the Charter. However it does NOT follow that the offence must be always be struck down. – there are other remedial options for the court: o 1. Interpret the statute creating the offence as implicitly allowing a defence of due diligence, in which case the offence becomes one of strict liability (this is what saved the offence in Levis v Tetreault) o 2. Use the power of severance (or reading in) to covert the offence into one of mens rea (R v Hess) !
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3. Use the power of severance to eliminate the penalty of imprisonment, in which case the offence (if it is a regulatory one) can survive as one of absolute liability (R v Pontes) (b) Strict liability offences ! (offence consists also of simply doing the prohibited act; however, it is a defence if the defendant proves the civil standard of the balance of probabilities that he or she exercised reasonable care (due diligence) to avoid committing the offence; in effect, there is no fault requirement of negligence, because the accused is liable only if he cannot prove the exercise of reasonable care) ! The law related to strict liability offences was apparently settled in in Wholesale Travel – in the case of a regulatory offence or a public welfare offence, fundamental justice does not require that mens rea be an element of the offence. Fundamental justice is satisfied if there is a defence of reasonable care (du diligence), and the burden of satisfying this defence may be cast on the defendant (2) Murder • Old felony murder – if caught in dangerous act and someone dies = murder ! R v Vaillancourt 1987: the accused was charged with murder as the result of a poolroom robbery in which the accused’s accomplice shot and killed a customer of the poolroom. The accused knew that his accomplice was carrying a gun, and of course he intended to rob the poolroom. o SCC held that the felony-­‐ murder rule (if an accused caused a death in the course of committing certain serious offences, including robbery, while armed with a weapon, then the accused was guilty of murder) was a violation of fundamental justice under s 7 of the Charter. The fact that an accused must have mens rea (a guilty mind) with respect to the underlying offence, in this case, the robbery, was not sufficient to satisfy s 7. o Before an accused could be found guilty of murder, s 7 required that there be mens rea with respect to the death. Therefore, the felony-­‐ murder rule was unconstitutional. ! in R v Martineau 1990 the SCC by majority held that it was the higher level of mens rea – subjective foreseeability – that was required by s 7 (L’Heureux-­‐
Dube J (dissented) pointed out that subjective foresight of death has never been the exclusive standard for murder in Canada or in other countries that inherited English principles of criminal law. how then did it suddenly become a basic tenet of the legal system? The question points to the indeterminacy of the doctrine of substantive fundamental justice and its dependence on the moral attitudes of the judges (3) Unforeseen consequences ! There are Criminal Code offences in which the consequences of an unlawful act dictate the severity of the punishment for which the accused is liable ! Is it a breach of fundamental justice to make an unintended and unforeseen consequence (bodily harm or death) the basis of a more serious charge? ! SCC held that where an accused is charged with offences of murder or attempted murder then it is a requirement of fundamental justice that the accused must have actually intended or foreseen the death of the victim. However, the court indicated that this requirement of subjective foresight of the consequences of an unlawful act applied only to “very few” offences, which were to be identified by reference to “social stigma” and the penalty attaching to the offence ! R v DeSousa: the accused while in a fight, threw a glass bottle that shattered against a wall causing fragments of glass to injure an innocent bystander. The accused neither intended nor foresaw this injury. However, the injury was used as the basis of a Criminal Code charge of unlawfully causing bodily harm ( carried a penalty of imprisonment of 10 year so that s 7 of the Charter was applicable). The accused was convicted of unlawfully causing bodily harm despite his lack of intention or foresight with respect to the bodily harm because there was no constitutional requirement that intention either on an objective or subjective basis extend to the consequences of unlawful acts in general. (no constitutional requirement to intend the consequences of your action, just need intent of your actual action). (4) Involuntary Acts i. Automatism ! The requirement of voluntariness is a basic tenet of the legal system that is protected by s 7 (ie it is a principle of fundamental justice criminal offences be committed voluntarily), at least for offences carrying the penalty of imprisonment. ! This means that the law respecting automatism now has constitutional status, and any attempt by Parliament to abolish the defence or restrict its availability would be unconstitutional, unless the limiting law could be justified under s 1. ! R v Parks (sleepwalking murder – acquitted) Page 69 of 86 ii. Duress ! The Criminal Code by s 17 makes duress an excuse for the commission of an offence: an offence committed “under compulsion: is excused from criminal liability. However s 17 stipulates that the compulsion must take the form of “threats of immediate death or bodily harm from a person who is present when the offence is committed” ! R v Ruzic 2001: held it would be a breach of the principles of fundamental justice to convict a person of a crime when the person had not acted voluntarily. The immediacy and presence requirements of s 17 were struck down as constitutional because they had the potential of convicting a person who had not acted voluntarily. Right to Silence: = principle of fundamental justice in s 7 (R v Hebert) ! A voluntary statement to another prisoner or undercover officer would not offend the right if the police officer did not actively elicit the statement ! In Hebert the accused’s statement had been elicited by the questioning of the undercover police officer. In effect, the police had used a trick to subvert the accused’s election not to make a statement to the police. This was a breach of s 7. The statement was excluded. ! R v Broyles: accused made a statement while in custody to a friend who visited him in jail. Unknown to the accused, the friend had been recruited as a police informer and was recording the accused’s statement. SCC held that that the informer was acting as an agent of the state, ! At trial, s 7 contains a residue of the rights to silence and supplements s 11(c) and 13 of the Charter which explicitly guarantee this right Fair Trial (A) the right to a fair trial ! Principles of fundamental justice require that the accused of a crime receive a fair trial ! s 7 overlaps with s 11(d) which also guarantees to a person charged with an offence “a fair and public hearing by an independent and impartial tribunal” ! s 7 is however wider than s 11(d) because s 7 also applies to civil and administrative proceedings where they affect life, liberty, or security of the person ! Extradition process of a fugitive must be conducted in accordance with principles of fundamental justice because there is an obvious denial of the liberty of the accused ! ! The SCC had to review a much more radical departure from the traditional trial format in CHARKAOUI v. CANADA (2007): ISSUE: Challenge to the validity of the security certificate provisions of the Immigration and Refugee Protection Act FACTS: o The Act empowered 2 ministers to issue a certificate declaring a non-­‐citizen named in the certificate threat to national security o The certificate authorized the arrest and detention of the named person. o The certificate was to be automatically referred to a judge of the Federal Court for review on the standard of reasonableness and if the judge found the certificate to be reasonable, the certificate became a removal order, authorizing the deportation of the named person o Problem with the process: at no stage did the named person necessarily know the nature of the case against him o There was no hearing on the original issue of the certificate o On review by the Federal Court judge the named person was entitled to be heard but the Act required the judge to “ensure the confidentiality of the information on which the certificate is based….if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person” o This obligation meant that the judge would often be unable to disclose to the named person the information upon which the certificate had been based SCC held: o The issue of security certificate was a deprivation of liberty under s 7 and that the review process did not satisfy the principles of fundamental justice, because it did not provide the named person with a fair hearing o McLachlin CJ acknowledged that “the procedures required to meet the demands of fundamental justice depend on the context”, and she also acknowledged that “national security considerations can limit the extent of disclosure of information to the affected person”, but she held that “the secrecy required by the scheme denies the named person the opportunity to know the case put against him or her, and hence to challenge the government’s case. This was a breach of the principles of fundamental justice Page 70 of 86 Could the law be justified as a reasonable limit on s 7 (s 1 Oakes test)??? o Protection of secret information respecting national security and intelligence sources was a sufficiently important objective and withholding such info was rationally connected to the objective o BUT the law failed to limit the right by the least drastic means, because Parliament could have adopted procedures to protect secrecy that were less intrusive of individual rights. o For example only know the named person is likely to know whether personal info is true or false and what evidence is available to disprove false info. A special-­‐ counsel system would compensate to some extent for the lack of informed participation by the named person. o McLachlin CJ although attracted by the idea , did not offer it as the only answer, making clear that “precisely what is to be done is a matter for Parliament to decide.” But without some effort to compensate for the non-­‐disclosure of secret info, the security – certificate process could NOT be justified under s 1 (b) Full answer and defence ! s 7 (in addition to the main section of 11(d)) guarantees the accused the right to present a full answer and defence (R v Seaboyer) (c) Pre-­‐trial disclosure by the Crown ! Pre-­‐trial disclosure by the Crown of all information relevant to the conduct of the defence is a constitutional obligation, entailed by the accused’s right to make full answer and defence (d) Pre-­‐trial disclosure by third parties ! the access to private records in the possession of third parties could be necessary to an accused’s right to make full answer and defence. Must engage in a balancing between full answer and defence and privacy/equality rights of the other (O’Conner case) !
Fair Administrative Process: The common law rules of procedural fairness must, of course, yield to any inconsistent statutory provisions ! where s 7 applies the rules of procedural fairness have constitutional status and will prevail over any inconsistent statutory provision. But it could be under s 1 of charter but it would be difficult to justify a breach of the procedural norms of fundamental justice and no such justification has so far been successful REQUIRED CASES FOR LIFE, LIBERTY AND SECURITY OF THE PERSON: CHARKAOUI v CANADA (minister of citizenship and immigration)
Facts: C applied for a stay of proceedings relating to the security certificate issued against him under s 77 of the Immigration and Refugee Protection Act. He alleged that the government breached a duty to disclose info in its possession in a timely way. The Act empowered 2 ministers to issue a certificate declaring a non-­‐citizen named in the certificate to be a threat to national security. The certificate authorized the arrest and detention of the named person The certificate and the detention are both subject to review by a judge, in a process that may deprive the person named in the certificate of some or all of the information on the basis of which the certificate was issued or the detention ordered. The certificate became a removal order, authorizing the deportation of the named person. Issue: challenge to the validity of the security certificate provisions of the Immigration and Refugee Protection Act, and whether they violated his s.7 rights. At no stage did the named person necessarily know the nature of the case against him SCC held: the issue of security certificate was a deprivation of liberty under s 7 and that the review process did not satisfy the principles of fundamental justice, because it did not provide the named person with a fair hearing Analysis: • McLachlin CJ: must look at context. National security can limit disclosure. But the secrecy of the above scheme doesn’t allow D to defend their case and violates principles of fundamental justice. 1.Does the procedure under the IRPA for determining the reasonableness of the certificate infringe s. 7 of the Charter • IRPA, clearly deprive detainees such as the appellants of their LIBERTY, because the person named in a certificate can face detention pending the outcome of the proceedings. • The detainee’s SECURITY may be further affected in various ways. The certificate process may lead to removal from Canada, to a place where his or her life or freedom would be threatene • Suresh, “[t]he greater the effect on the life of the individual by the decision, • the greater the need for procedural protections to meet the requirements of fundamental justice under s. 7 • Disclosure is a constitutional obligation. • s 7 guarantees the accused the right to present a full answer and defence (R v Seaboyer) Page 71 of 86 •
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Access to private records in the possession of third parties could be necessary to an accused’s right to make full answer and defence. Must engage in a balancing between full answer and defence and privacy/equality rights of the other (O’Conner case) the Crown is under a duty to preserve relevant evidence once it comes into the possession or control of the Crown The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process This basic principle has a number of facets. Each of these facets must be met in substance. o Right to a hearing o Hearing to be impartial o Decision based on fact and law o Right to know case against you and right to answer that case. 2.Could the law be justified as a reasonable limit on s 7 (s 1 Oakes test)??? (a) Pressing and substantial objective? The protection of Canada’s national security and related intelligence sources Constitutes a pressing and substantial objective and thus is sufficiently important. (b) Proportionality assessment: (i) Rational connection? withholding such info was rationally connected to the objective (ii) Minimum impairment? BUT the law failed to limit the right by the least drastic means, because Parliament could have adopted procedures to protect secrecy that were less intrusive of individual rights. McLachlin CJ: without some effort to compensate for the non-­‐disclosure of secret info, the security – certificate process could NOT be justified under s 1 CANADA v. PHS COMMUNITY SERVICES SOCIETY [2011] FACTS: • Insite = safe injection facility in Vancouver that provides medical supervision to intravenous (illegal) drug users. • It has operated under exemption in CDSA. • In 2008 the federal Minister of Health failed to extend Insite’s CDSA exemption, which brought about this action. • The claimants, argued that the division of powers makes the federal CDSA prohibitions inapplicable to the provincial health activities and patrons. •
The claimants also submitted that sections of the CDSA violated the claimants’ s.7 Charter rights. HELD: The federal CDSA provisions do apply to provincial health activities. While the provisions do not violate the claimants’ s.7 rights, the Minister’s failure to provide an exemption does.
REASONS -­‐ Division of Powers ! Recent jurisprudence limited interjurisdictional immunity via the double aspect doctrine. 3 reasons for rejecting the interjurisdictional immunity claim o First, immunity of the provincial health power had never been recognized in the jurisprudence. o Second, claimants “failed to identify a delineated ‘core’” of the provincial health power, which is large and overlaps substantially with federal jurisdiction. o Third, granting interjurisdictional on the facts might result in a “legal vacuum” where neither government is able to legislate. ! The court was careful to affirm that the doctrine of interjurisdictional immunity has been narrowed, not abolished. ! Implicitly suggests that future interjurisdictional immunity arguments should be limited to invoking previously identified “core” undertakings. REASONS – Charter Argument ! The court found that the prohibition of possession in the CDSA engages the claimants’ s.7 right to liberty since its breach can result in imprisonment. ! It also engages Insite clients’ s.7 rights to life and security of the person by denying them access to “potentially lifesaving medical care.” ! However, these limitations do not breach FJ. The claimants’ as arbitrary, overbroad and disproportionate were dismissed on the grounds that the CDSA has a built-­‐in “safety valve” that empowers the Minister to grant exemptions to possession for medical/ scientific purposes. ! While the statute did not violate the claimants’ s.7 rights, the court held that the Minister’s decision did, the Minister’s decision was arbitrary and disproportionate in its effects. Denying the life saving services that Insite provides is grossly disproportion to the benefit of having a uniform drug policy. Page 72 of 86 [10] Equality Rights –CONSTITUTION ACT, 1982, S 15 Section 15 of Charter: 15(1) “Every individual is equal before the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability” 15(2) subsection (1) does not preclude the 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 race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. ! S 15 confers its right on an “individual” ! Equality is expressed in 4 different ways: o Equality before the law o Equality under the law o Equal protection of the law o Equal benefit of the law o The reason for having 4 formulations was to reverse the restrictive interpretations placed by the SCC on the phrase “equality before the law” which was used in s 1(b) of Cdn BoR ! Guarantees against “discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability” (THESE ARE THE LISTED GROUNDS OF DISCRIMINATION) ! ‘In particular’ makes clear that the named grounds are not exhaustive ! Subsection 2 authorizes the creation of affirmative action programmes that have the purpose of ameliorating the conditions of disadvantaged groups Canadian Bills of Rights ! s 1(b) guarantees “equality before the law”. This provision which applies only to the federal Parliament, was superseded by s 15 of the Charter which applies to the federal Parliament and to the provincial legislatures ! SCC held only once that the equality clause in s 1(b) of the Canadian Bill of Rights had the effect of nullifying a statutory provision – R v Drybones: court struck down a provision of the Indian Act that made it an offence for “an Indian” to be intoxicated off a reserve. Ritchie J held that the racial classification “Indian” which was employed by the challenged provision was a breach of s 1(b) Application of s 15 (a) Individual ! The benefit of the equality rights in s 15 is conferred upon “an individual” and probably excludes a corporation (b) “law” in s 15 ! Applies to any type of government action (c) Private action [indirectly applicable via human rights code] ! S 32 of the Charter excludes private action from the application of the Charter. This means that s 15 does not apply to private acts of discrimination, where an employer hires only male employees, or a landlord rents only to white people, etc ! Human Rights Codes have been enacted in all Canadian Jurisdictions which prohibit private acts of discrimination in employment, accommodation and the provision of services. Human Rights Codes takes precedence over other statutes. ! The Human Rights Codes are themselves subject to the Charter Blainey v Ontario Hockey (1986): Facts: A girl who had been excluded by the Ontario Hockey Association from a boy’s hockey team challenged a provision in the Ontario Human Rights Code that permitted single-­‐ sex sports team. Ontario Court of Appeal held: the exception was a breach of s 15 because it denied the plaintiff the benefit of the Code by reason of her sex. Therefore, the Charter has an indirect impact on her private action Equality (DEFINITION) (a) Four equalities of s 15 ! Equality before the law ! Equality under the law ! Equal protection of the law ! Equal benefit of the law (b) Similarly situated test ! Before the SCC decided the Andrews case, Canadian courts were applying a version of the Aristotelian principle of equality known as the “similarly situated” test = equality was made out if it could be shown that the law accorded the complainant worse treatment than others who were similarly situated ! In Andrews, McIntyre J said this test was “seriously deficient” and could NO LONGER BE USED. (who is similarly situated? What kinds of differences?) Page 73 of 86 (c) Formal and substantive equality ! Formal equality – merely prohibits direct discrimination (which is insufficient) ! Substantive equality –prohibits both direct and indirect discrimination. I.e. law against drivers under 6” indirectly discriminates against women. (d) Valid federal objective !
Before the adoption of the Charter, the approach that became dominant in the SCC was to uphold any distinction in a statute if the statute pursued a “valid federal objective” Discrimination [a comparison analysis] ! Early application of s 15 resulted in an overload of case being brought to the court challenging on equality ground ! Then came the Andrews case, which started to develop rules to control the floodgates o the SCC held that s 15 was a prohibition of “discrimination” and that discrimination could only be based on a ground that was listed in s 15 or that was analogous to those listed in the section ! So it is now clear that s 15 prohibits only those violations of equality that amount to discrimination. Discrimination is the operative concept, and the SCC has settled that the following amounts to discrimination: 1. the challenged law imposed (directly or indirectly) on the claimant a disadvantage (in the form of a burden or withheld benefit) in comparison to other comparable persons; (Andrews); AND 2. The disadvantage is based on a ground listed in or analogous to a ground listed in s 15 (Andrews), AND 3. The disadvantage is imposed in a way that impairs human dignity (Law v Canada) ! A claimant who persuades the Court of these 3 elements is entitled to a finding of discrimination, which means that the challenged law is in breach of s 15" the burden then shifts to the government to justify the discrimination under s 1 ! NOTE: the conclusion drawn on a s 15 analysis is whether or not there is DISCRIMINATION ELEMENTS OF S 15 (Andrew v Law Society of B.C; Law v Canada) 1.
DISADVANTAGEOUS DISTINCTION: does the challenged law impose (directly/indirectly) a disadvantage on the claimant (in the form of a burden withheld) in comparison to other comparable persons? ! STEP 1: Selection of comparator group ! In order to establish discrimination under s 15, an individual must show that he has suffered a disadvantage by reason of his possession of one of the characteristics named in s 15 or an analogous characteristic !
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Andrews: McIntyre J said in order for a legislative distinction to amount to discrimination against an individual or group, the distinction must be one “which has the effect of imposing burden, obligations or disadvantages on such individual or groups not imposed on others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society” It is the requirement of disadvantage that involves a comparison with others-­‐ others who are similarly situated to the complainant except for the presence of a listed or analogous personal characteristic –in Andrews this was easily satisfied o The plaintiff’s non-­‐Canadian citizenship denied him access to the legal profession, while permitting access to others whose qualifications to practice law were no different from his, except for their possession of Canadian citizenship !
The presence of disadvantage (or unequal treatment) requires a comparison between the legal position of the claimant and that of other people to whom the claimant may legitimately invite comparison-­‐ INVOLVES 2 INQUIRES: !
1. Whether the group to which the claimant compares herself is the appropriate comparator group, (once the appropriate nd
comparator group is selected the 2 is:); 2. Whether the distinction of the law draws between the claimant and the comparator group is disadvantageous to the claimant Ie. If a women challenges a law that confers a benefit only on men, the comparator group will be men who qualify for the benefit , and if the claimant possesses all the qualifications for the benefit other than her sex, then it will be clear that she has suffered a disadvantage by reason of her sex. Page 74 of 86 !
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Auton v British Columbia 2004: a claim of discrimination was made by autistic children and their parents, who complained that the province did not fund the new “applied behavioral therapy” that was the most effective treatment for autism. Because the claimants had adduced no evidence that the province was funding “other comparable novel therapies”, they could not show disadvantage or unequal treatment The definition of the comparator group is critical to the outcome of s 15 cases Only if the claimant’s choice of comparison is agreed to by the court will the claim be able to proceed through the various stages of s 15 and s 1 STEP 2: Requirement of disadvantage !
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Once the appropriate comparator group has been selected, it Is necessary to compare the treatment provided by the law to the claimant with the treatment provided to the comparator group TWO TYPES: If the law treats the claimant less favourably, whether by (1) Withholding a benefit that is granted to the comparator group, or by (2) Imposing a burden that is not applicable to the comparator group, is the claim of disadvantage or unequal treatment made out Group disadvantage = being part of a disadvantaged group is not a prerequisite to finding discrimination, although it is an indication of an analogous group (Miron v Trudel; Egan v Canada) And it is relevant to the human dignity analysis (Law v Canada) (1) ENUMERATED (single) OR ANALOGOUS (similar / equiv) GROUNDS: the distinction is on the basis of a listed or analogous ground ! The listed ground, although not exhaustive, did point to personal characteristics of individuals that cannot easily be changed and which have often been the target of prejudice or stereotyping ! The reference in subsection (2) (the affirmative action clause) to “disadvantaged individuals or groups” suggested that the role of s 15 was to correct discrimination against disadvantaged individuals or groups. ! The requirement that the discrimination be in relation to a listed or analogous ground was stated in ANDREWS v. LAW SOCIETY OF B.C. o o ANDREWS v. LAW SOCIETY OF B.C. ! First s 15 case to reach the SCC ! Issue: challenge to the statutory requirement of the province of B.C. that members of the bar had to be citizens of Canada ! Court held: this requirement was contrary to s 15 and not saved under s 1. Court held that citizenship qualified as an analogous ground of discrimination ! after Andrews it was clear that s 15 was a prohibition of discrimination, and that discrimination involved the imposition of a disadvantage (the imposition of a burden or the denial of a benefit) on an individual by reason of the individual’s possession of a characteristic that was either listed in s 15 or was analogous to those listed in s 15 ! Analogous grounds includes: ! There are grounds that are similar in some important way to the grounds listed in s 15 which are “race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability = personal characteristics of individuals that are unchangeable (immutable) or at least unchangeable by the individual except with great difficulty or cost; they are not voluntarily chosen by individuals, but are an involuntary inheritance o It is morally wrong to impose a disadvantage on a person of a characteristic that is outside the person’s control ! Supreme Court has held that an analogous ground is one based on a “personal characteristic that is immutable or changeable only at an unacceptable cost to personal identity” (Corbiere v Can.) ! ANALOGOUS GROUNDS = Citizenship (Andrews): La Forest J pointed out that citizenship was a personal characteristic that is “typically not within the control of the individual, and in this sense, immutable Marital status (Miron v Trudel): Sexual orientation (Egan v Canada): La Forest J described sexual orientation as “a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs” Page 75 of 86 !
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Egan: a same-­‐ sex couple who were seeking a spousal allowance under the federal Old Age Security program, did not actually succeed. But the ruling on analogous grounds were clear enough and it paved the way for a series of cases that confirmed the ruling and upheld te equality rights of homosexual claimants Vriend v Alberta: court held that Alberta’s human rights code violated s 15 by failing to include sexual orientation as a prohibited ground of discrimination !
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Little sisters Book and Art: court held that the practices of customs officials in obstructing the importation of books by a bookstore catering to gay and lesbian communities was a breach of s 15 These decisions also helped the SC to decide that the federal power over “marriage” extended to same-­‐ sex marriage, a ruling which was followed by legislation enacting a new national definition of marriage that no longer requires the couple to be of opposite sex (Civil Marriage Act) so far these 3 grounds are the only ones that have been recognized NOT ANALOGOUS GROUNDS: Place of residence -­‐ except in the special case of residence on an Indian reserve (ie. Turpin) Occupation – so that a law denying collective bargaining rights to police officers cannot be challenged under s 15 (ie. Re Workers Comp) Substance orientation-­‐ so that a law prohibiting the use of marijuana cannot be challenged under s 15 Privileges for the Crown and other public authorities in litigation cannot be challenged under s 15 because the existence of a claim against government is NOT an analogous ground (ie Rudolph) Where there is NO distinction based on a listed or analogous ground, there is no remedy under s 15 (2) DISADVANTAGE AND HUMAN DIGNITY: does the disadvantage impair claimant’s human dignity !
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There are 4 contextual factors used to determine whether or not human dignity is impaired by a law that imposed a disadvantage on the basis of a listed or analogous ground The correspondence factor has become the KEY to the impairment of human dignity !
Law v Canada identified 4 contextual factors to analyze when determining whether there was an impairment of human dignity: o (1) the existence of pre-­‐ existing disadvantage, stereotyping, prejudice or vulnerability: if the law promotes stereotype, then this indicates a s 15 infringement o (2) the correspondence between the distinction and the claimant’s characteristics or circumstances (sometimes legislation must make distinctions in order to account for personal characteristics (e.g Law, the denial of CPP survivor benefits to spouses under the age of 35 accurately corresponded to the circumstances of younger spouses of deceased income earners, who could be expected to be more successful in finding and retaining employment than older spouses) o
(3) the existence of ameliorative purposes or effects on other groups: this factor is more relevant where the s 15(1) claim is brought by a more advantaged member of society (e.g in Law, the SCC held that a factor supporting the view that the impugned CPP provisions do not violate essential human dignity is the clear ameliorative purpose of the pension scheme for older surviving spouses. Older surviving spouses, like surviving spouses who are disabled or who care for dependent children, are more economically vulnerable to the long-­‐ term effects of the death of a spouse) an ameliorative purpose will likely not violate the dignity of more advantaged individuals that are excluded from the law’s scope where the purpose accords with the purpose of section 15(1) itself and corresponds to the needs and circumstances of the disadvantaged group targeted by the legislation (4) the nature of the interest affected: the more severe and localized the consequences on the affected group, the more likely that the distinction responsible for these consequences is discriminatory within the meaning of s 15 of the Charter; evaluate not only the economic but also the constitutional and societal significance attributed to the interest or interests adversely affected by the legislation in question !
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THE POINT IN THE DIGNITY ANALYSIS IS TO ASK WHETHER from the perspective of a reasonable person in circumstances similar to those of the claimant who takes into account the contextual factors relevant to the claim (ie APPLY A MODIFIED OBJECTIVE TEST), the legislative imposition of differential treatment has the effect of demeaning his or her dignity. Note, however, that the SCC in R v KAPP 2008 (obiter) opted to remove the human dignity requirement, and replaced it with a “discrimination” requirement, namely the perpetuation of disadvantage or stereotyping The 4 factor contextual approach IS STILL RELEVANT: o (1) Pre-­‐ existing disadvantage o (3) Ameliorative purpose (4) Nature of interest affected o [the above 3 factors go to perpetuation of disadvantage] o (2) correspondence [this factor goes to ‘stereotyping’] BUT human dignity analysis is still good law , because obiter remarks of the SCC are not binding on the SCC Direct and Indirect Discrimination (a) Substantive equality ! “direct” discrimination = a law that is discriminatory on its face (ie a law that expressly excluded women from admission to the police) o “formal equality”= a theory of equality that covers only direct discrimination o S 15 includes direct discrimination and this leads to invalidity of a law that is discriminatory on its face ! Discriminatory “in its effect”= (ie., a law that imposed height or weight qualifications for admission to the police force would be discriminatory in its effect of the law (whether intended or not) was to disqualify a disproportionate number of women)= “indirect discrimination” o Indirect discrimination is a law that does not expressly employ any of the categories listed In s 15 (or analogous to those listed), if the law has a disproportionately adverse effect on persons defined by any of the prohibited categories o Indirect also known as “systemic” discrimination or “adverse-­‐ effect” discrimination “SUBSTANTIVE EQUALITY”= used to indicate a theory of equality that covers indirect as well as direct discrimination o Because s 15 includes substantive inequality, it leads to invalidity of a law that is discriminatory in its effect ! Discriminatory “in its application”= ie. A law that prescribed no discriminatory qualifications for admission to the police force would be discriminatory in its application if police recruitment procedures led to the rejection of a disproportionate number of female applicants. = INDIRECT o In this case s 15 will NOT lead to the invalidity of the law itself. S 15 will deny validity to past applications of the law and will require (in the police example) that gender-­‐ neutral procedures be established for its future administration ! s 15 applies to all of the above ! NOT necessary to show that the law was passed with the intention of discriminating; the mere fact that the law does have the disproportionately adverse effect is enough (b) Reasonable accommodation ! Ontario Human Rights Commission v Simpsons-­‐ Sears: SCC held that an employer (a retailer)was under a duty to make reasonable adjustments to employee work schedules so that an employer was th
a 7 Day Adventist would not have to work on Friday evenings and Saturdays o the rule requiring employees to be available for work at those times was a reasonable requirement for a retailer because those times were busy in the retail trade. However, the rule had a disproportionately adverse effect on those observing a Saturday Sabbath and therefore constituted discrimination on the basis of religion Justification under s 1 ! S 1 of the Charter of Rights provides that all the Charter rights are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” ! Since Law imported the human dignity analysis into s 15, there has only been one case in which s 1 has saved a law found to be in breach of s 15, showing the difficulty in upholding a law that infringes inequality Affirmative action ! Subsection (2) of s 15 provides: 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 !
Page 77 of 86 because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability ! This makes clear that s 15 does not preclude “affirmative action” or “equity” programmes in favour of “disadvantaged individuals or groups” ! This has not been interpreted as an “exception” to s 15(1); rather subsection (2) and (1) are confirmatory of one another; they are independent (R v Kapp) Discrimination Permitted by Constitution (a) Age in ss 23, 29, 99 ! What is the position if the Constitution itself requires or permits discrimination? ! For example the Constitution Act 1867 provides that a person cannot be appointed to the Senate (s 23); and a senator must retire at the age of 75 (s29); a judge must retire at the age of 75 (s99) ! These provisions impose a burden by reference to a ground of discrimination that is listed in s 15, namely, age. ! The provisions would therefore be contrary to s 15 and hence invalid (unless saved by human dignity or s 1) if they were contained in an official instrument other than the Constitution itself ! Are the provisions sheltered from Charter attack by reason of their constitutional status? YES (b) Race in s. 91(24) ! The Constitution Act 1867 by s 91(24) confers on the federal parliament the power to make laws in relation to “Indians, and lands reserved for the Indians”. Obviously any law enacted under this power will have to be explicitly restricted to “Indians” or will have a disproportionate impact on Indians who live on “lands reserved for the Indians” ! Laws enacted under s 91(24) that employ the classification “Indian” (or that have a disproportionate impact on Indians or lands reserved for the Indians) should not be vulnerable to attack under s 15 (c) Religion in s 93 ! Ontario Separate School Funding case: religious schools other than the Roman Catholic schools received no public funding. The SCC upheld the statute on the basis that the distinctive treatment of Roman Catholic school supporters was expressly permitted by the Constitution ! the province’s power to enact laws in relation to education came from s 93 of the Constitution Act 1867 ! however, s 93 went on to guarantee the rights of Roman Catholic and Protestant school supporters that existed at the time of confederation and subsection (3) of s 93 made reference to any system of separate schools “thereafter established”, meaning established after confederation (d) Province of residence in ss 91, 92 ! Supreme court has in fact held that place of residence is not an analogous ground ! Differences between provincial laws cannot amount to discrimination under s 15, because that would require a uniformity of provincial laws which would be inconsistent with the distribution of legislative power in ss 91 and 92 (and some other sections) of the Constitution Act 1867 (e) Citizenship in s 6 ! Because of s 6(1)’s guarantee of the right to remain in Canada applies only a “citizen”, it has been held that the Immigration Act may validly provide for the deportation of non-­‐ citizens who have committed criminal offences, or who have been certified as a threat to national security ! The imposition of a burden on non-­‐ citizens that does not also apply to citizens would normally be a breach of s 15, but in the case of the right to remain in Canada a difference in treatment was specifically contemplated by s 6(1) ! Outside the right to remain in Canada under s 6(1), laws imposing disabilities on non-­‐citizens have been held to be in breach of s 15 ! Andrews v Law Society of B.C held that citizenship was an analogous ground of discrimination under s 15 and struck down the provincial law that restricted entry to the province’s legal profession to Canadian citizens (f) Language in ss 16-­‐23 ! These sections accord a “special status” to French and English “in comparison to all other linguistic groups in Canada” ! For example the right to minority language education in s 23 which is explicitly limited to French and English, does not extend to other minority language speakers by the operation of s 15 The Law on the listed and analogous grounds: CANNOT DISCRIMINATE ON THESE GROUNDS: Race !
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“race” as well as “national or ethnic origin” and “colour” are grounds of discrimination expressly prohibited by s 15 It is difficult to imagine a situation in which a racial distinction could possibly be upheld, unless it falls under s 15(2) The aboriginal situation in Canada is a special one (see s 25 of Charter and s 91(24) of Constitution Act, 1867 Page 78 of 86 o
A law enacted by the federal parliament under s 91(24) for the benefit of Indian people, and laws enacted to give effect to aboriginal or treaty rights, are not affected by s 15 of the Charter Mental or Physical Ability !
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Another ground expressly prohibited by s 15 The funding of the schools of a religious denomination without comparable provision for the supports of the schools of other religious denominations would be forbidden by s 15, unless that denominational school system is protected under the special provision of s 93 !
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“Sex” is anther grounds of discrimination that is expressly prohibited by s 15 R v Hess: the offence of statutory rape did not offend s 15, although the offence could only be committed by a male, on the basis that since the prohibited act (intercourse) was defined by reference to penetration, so it could as a matter of biological fact be committed only by males Brenner v Canada: a provision of the Federal Citizenship Act distinguished between men and women was struck down under s 15 in regulating the citizenship status of persons born outside Canada before 1977, the Act provided that a person born to a Canadian father was automatically entitled to citizenship upon registration in Canada of the birth, but a person born to a Canadian mother had to apply for citizenship and undergo a security check. This law could not be saved under s 1, failing on the rational connection test. Age !
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Another ground of discrimination that is expressly prohibited Law v Canada: the SCC upheld a law that denied a benefit to young persons, namely those who were under 35 were denied pension plan payments upon death of surviving spouses. Although there was a distinction on age, there was no impairment of human dignity. The exclusion of persons under 35 from the benefit scheme did not imply that they were less capable or less worthy, but simply was designed to recognize the reality that older people would be in greater need of support and to apply limited resources to those in greater need Gosselin v Quebec: Quebec’s social assistance law provide that welfare recipients under 30 received benefits of only about 1/3 of the standard amount that was payable to persons 30 or over. Held: while there was a distinction on the basis of age, there was no impairment of human dignity !
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Another ground of discrimination that is expressly prohibited by s 15 Although there are legal restrictions properly predicated on mental disability (ie, a blind person is disqualified from driving), many disabilities can be accommodated by changes to work places and public facilities that permit those who are blind, for example, to function effectively. Therefore the rules that discrimination may be unintended, indirect and may require reasonable accommodation, are of special importance here In several of the “accommodation” cases (ie where an accommodation had been made to the special needs of a class of persons with disabilities), the constitutional challenge to the appropriateness / method of the accommodation failed, indicating that deference should be paid to a legislated effort to accommodate such needs. Court defers to parliament to determine best accommodation method. But this pattern of deference was broken in Nova Scotia v Martin-­‐-­‐ Nova Scotia v Martin: the SCC struck down provisions of a statutory worker’s compensation scheme that dealt with chronic pain; it provided a 4 week rehab period for worker suffering from chronic pain. HELD: (i) the restriction on benefits for chronic pain distinguished between worker with chronic pain and workers with other kinds of work related injuries; (ii) the distinction was based on physical disability (an expressly prohibited ground), even though members of the comparison group were also disabled; (iii) the distinction impaired human dignity of chronic pain suffers, and therefore amounted to discrimination; (iv) it could not be saved by s 1 Citizenship ! Not a ground of discrimination that is expressly mentioned in s 15, but it is an analogous ground (Andrews v Law Society) Marital Status ! Not a ground of discrimination that is expressly mentioned in s 15, but in Miron v Trudel the SCC held it to be an analogous ground Sexual Orientation ! = an analogous ground (Egan): in this case the SCC held that the federal Old Age Security Act offended s 15 by making spousal allowance available to a spouse “of the opposite sex” but not to a same-­‐sex partner. The provision was upheld under s 1. Place of Residence ! NOT an analogous ground: it lacks the element of immutability that is common to the listed grounds and is required for the analogous grounds Page 79 of 86 Occupation ! NOT an analogous ground: it lacks the element of immutability that is common to the listed grounds and is required for the analogous grounds !
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REQUIRED CASES FOR EQUALITY RIGHTS ANDREWS v. LAW SOCIETY OF BRITISH COLUMBIA [1989] FACTS: s. 42 of the Barristers and Solicitors Act denies admission to non-­‐citizens who are in all other respects qualified. ISSUE: Does s 42 offend s 15 of the Charter? HELD: Majority held that law was unconstitutional REASONING: Wilson J (Majority) !
A rule which bars an entire class of persons from certain forms of employment solely on the ground that they are not Canadian citizens violates the equality rights of that class. !
non-­‐citizens are a group vulnerable to having their interests overlooked and they fall into an analogous group to those enumerated in s 15 !
S 1 analysis: There is not a sufficiently rational connection between the required personal characteristic of citizenship and the governmental interest in ensuring lawyers in BC are familiar with Canadian institutions, are committed to Canadian society, and are capable of playing a role in our system. McIntyre J (Dissenting in part – namely on the s 1 analysis) !
the citizenship requirement affects only those non-­‐citizens who are permanent residents. The permanent resident must wait for a minimum of three years from the date of establishing permanent residence status before citizenship may be acquired. The distinction therefore imposes a burden in the form of some delay on permanent residents who have acquired all or some of their legal training abroad and is, therefore, discriminatory. The rights guaranteed in s. 15(1) apply to all persons whether citizens or not !
It is entirely reasonable that legislators consider and adopt measures designed to maintain within the legal profession a body of qualified professionals with a commitment to the country.. R v. KAPP [2008] FACTS: The appellants are commercial fishers, mainly non-­‐aboriginal, who assert that their equality rights under s. 15 were violated by a communal fishing licence granting members of three aboriginal bands the exclusive right to fish for salmon. Claimed fishing licence discriminated against them on the basis of race. Held: appeal dismissed REASONING: •
As critics have pointed out, human dignity is an abstract and subjective notion that, even with the guidance of the four contextual factors, cannot only become confusing and difficult to apply; (obitor) •
The focus of s. 15(2) is on enabling governments to pro-­‐actively combat discrimination thus s. 15(1) cannot be read in a way that finds an ameliorative program aimed at combating disadvantage to be discriminatory. The TEST under s 15(2) is as follows: A program does not violate the s. 15 equality guarantee if the government can demonstrate that: o (1) the program has an ameliorative or remedial purpose; and o (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds. Apply test to this case: The government was hoping to redress the social and economic disadvantage of the targeted bands, and the government’s aims correlate to the actual economic and social disadvantage suffered by members of the three aboriginal bands. o Therefore, the government program is protected by s 15(2) and the program does not violate the equality guarantee of s. 15 of the Charter. WITHLER v. CANADA (ATTORNEY GENERAL) [2011]-­‐ MOST RECENT APPLICATION FACTS: The appellant were widows whose federal supplementary death benefits were reduced because of their husbands' ages. The appellants submitted that the age-­‐based benefit reduction, which was part of a statutory death benefit scheme for certain federal government employees, violated section 15 of the Charter. HELD SCC: the court concluded that the focus must be on the nature of the benefit. A contextual assessment revealed that the age-­‐based benefit reduction did not breach section 15. ANALYSIS: •
The court emphasized that the focus of a section 15 analysis is the actual impact of the differential treatment, and therefore the analysis requires a contextual consideration of the impact of the legislation or state action. •
The scheme was designed to benefit a number of different groups, and the benefit reductions reflected the reality that different groups of survivors have different needs. !
Having found that section 15(1) was not breached by the benefit scheme, the court did not perform a section 1 analysis. Page 80 of 86 [11] Remedies-­‐ CONSTITUTION ACT, 1982, S. 52 and S. 24 !
Both sections can be used as remedy section for the Charter o S 52(1) in general applies to attacks on legislation o S 24(1) in general applies to governmental action COMPARISONS: # Section 24(1) is only applicable to breaches of Charter rights Section 52(1) is applicable to the entire Constitution, including the Charter # Section 24(1) is available only to a person whose rights have been infringed Section 52(1) is available in some circumstances to a person whose rights have been infringed # Section 24(1) may be applied by a “court of competent jurisdiction” Section 52(1) may be applied by any court or tribunal with power to decide questions of law # Section 24(1) authorizes the award of a wide range of remedies Section 52(1) appears to authorize only a holding of invalidity, leaving it to the genera law to impose a particular remedy # Section 24(1) confers a discretion on the court as to whether a remedy should be awarded Section 52(1) appears to confer no discretion on the court, requiring the court to make a holding of invalidity if it concludes that a law or act is inconsistent with the Constitutuion Supremacy Clause [explicit basis for judicial review] !
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SECTION 52(1) of the Constitution Act, 1867: “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” This supremacy clause gives to the Charter overriding effect. Since the Charter is part of the “Constitution of Canada”, any law that is inconsistent with the Charter is “of no force or effect” EFFECT: preserve all pre-­‐existing remedies for unconstitutional action and to extend those remedies to the Charter or Rights. In addition, the charter contains its own remedies clause: s24(1). THERE ARE 6 CHOICES AVAILABLE TO THE COURTS UNDER S 52(1) Reconstruction • General rule: courts may not reconstruct an unconstitutional statute in order to render it constitutional • The techniques of temporary validity, severance, reading in, reading down and the constitutional exemption should be seen as exceptions to the general rule 1. Nullification ! Striking down/ declaring that a law is invalid because it is inconsistent with the Constitution. ! The effect of such a holding is that the litigation will be determined as if the unconstitutional law did not exist. ! In R. v. Big M Drug Mart the Act was actually struck down for breach of the Charter of Rights 2. Temporary Validity ! While s 52(1) requires a court to hold that an unconstitutional statute is invalid, the courts have assumed the power to postpone the operation of the declaration of invalidity. ! The statute will remain in force until the expiry of the period of postponement ! In Schachter, the SCC held that a provision of the federal Unemployment Insurance Act offended the guarantee of equality in s 15 because it allowed more generous child care benefits to adoptive parents than to natural parents. Although the Court was willing to grant a temporary period of validity, Lamer J recognized the radical character of the remedy. Cases in which the immediate striking down of the legislation would: o Pose a danger to the public (Swain) o Threaten the rule of law (Manitoba Language) o Result in the deprivation of benefits from deserving persons (Schachter itself) ! These 3 guidelines essentially limited the courts’ use of suspended declarations of invalidity to urgent situations where danger, disorder, or deprivation would be caused by an immediate declaration of invalidity ! But more recently, the courts have gone beyond those categories because of the new philosophy that the courts should be having a dialogue with the legislature, by allowing the legislature to remedy violations Page 81 of 86 3. Severance ! Holding that only part of the statute is inconsistent with the Constitution, striking it down and severing it from the remainder of the statute. Appropriate when the rest of the statute can survive independently. ! Severance occurs in most charter cases, it is unusual for a breach to taint the entire statute. ! Severance is a doctrine of judicial restraint: b/c its effect is to minimize the impact of a successful Charter attack on law: the courts intrusion into the legislative process goes no further than is necessary to vindicate charter right. ! Tetreault-­‐ Gadoury v Canada: SCC held it was a breach of s 15 of the Charter to restrict unemployment insurance benefits to persons under the age of 65. The court simply invoked the power of severance to remove the age 65 bar from the Act. The effect of this was to require payment of unemployment insurance benefits to persons over 65 who was otherwise qualified. 4. Reading In ! In Schachter, the SCC held that it possessed the power not only to sever language from a statute, but also to “read in” new language if that were necessary to remedy a constitutional defect ! The court in this case acknowledged that caution was called for in exercising this remedy. Reading in would be appropriate in the clearest of cases where the cases contained the following: a. The addition of the excluded class was consistent with the legislative objective b. There seemed to be little choice as to how to cure the constitutional defect c. The reading in would not involve substantial change in the cost or nature of the scheme d. The alternative of striking down the under-­‐ inclusive provision would be an inferior remedy ! R v Sharpe: overall objective was to maintain the child pornography legislation; the only way to save it was to read in 2 provisions. Personal use and self-­‐ made audio visual materials for personal use 5. Reading Down ! Reading down is the appropriate remedy when a statute will bear 2 interpretations, one of which would offend the Charter and the other of which would not. In that case, a court will hold that the latter interpretation, which is normally a narrower one, (hence the reading down) is the correct one. When a statute is read down to avoid a Charter breach there is no holding of invalidity 6. Constitutional Exemption ! Granting a “constitutional exemption” from “otherwise valid legislation” that would be unconstitutional in its application to particular individuals or groups" never been used ! In Big M Drug Mart – in Obiter they dabbled with option of reading in exemption to non Sunday sabath worshipers. This would uphold the law, yet compromise courts role. ! The defendant in Ferguson was a police officer who was attacked by a violent prisoner who he was trying to put into a cell. In the course of the struggle, the defendant’s gun went off and killed the prisoner. The defendant was convicted of manslaughter. The judge held that he was entitled to a constitutional exemption. On appeal, the SCC disagreed, holding there was no basis for concluding that the 4 year sentence was grossly disproportionate “in the facts of this case”…”an inappropriate intrusion into the legislative sphere.” ! However, McLachlin CJ reasons did not include a retraction of Seaboyer, where the court held that a constitutional exemption might be available “in some other case” Limitation of Actions ! An action or other form of proceeding for a declaration that a statute is unconstitutional, including all the many variants of the declaration that have been described, is not subject to any limitation period ! If the reviewing courts hold that the statute is unconstitutional, then the statute will be declared to have been unconstitutional from its inception and the newly discovered rights and obligations that flow from the retroactive disappearance of the statute will take effect automatically Remedy Clause !
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SECTION 24(1) of the Charter: “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. o Provides for the granting of a remedy to enforce the right or freedoms guaranteed by the Charter Standing o Standing to apply for a remedy under s 24(1) is granted to “anyone” whose Charter rights have been infringed or denied o S 24(1) contemplates that that it is the applicant’s own rights that have been infringed or denied o In Minister of Justice v Borowski, the SCC granted standing to an anti-­‐
abortion activist to bring an action for a declaration that the Criminal Page 82 of 86 !
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Code’s abortion provisions were unconstitutional. Those provisions could never have applied to the applicant, who neither a doctor nor a woman, but he was granted standing nevertheless. This illustrates that the availability of a declaration of invalidity under s 52(1) is governed by more generous standing requirements than are the remedies authorized by s 24(1) Apprehended Infringements o S 24(1) stipulates that the applicant’s rights “have been” infringed or denied, which contemplates that the infringement has occurred at the time of the application. It does not authorize an application in respect of a merely apprehended future infringement o HOWEVER, it seems to be generally accepted that the imminent threat of a Charter violation will satisfy s 24(1). For example, s 24(1) will authorize a remedy for English-­‐ speaking parents who are denied by statute their Charter right under s 23 to send their children to an English-­‐ speaking school, even if the application is made before the school year has started, and therefore before any parent’s child has actually been refused admission: Que Assn. of Protestant School Bds Court of Competent Jurisdiction o S 24(1)’s remedies may be granted only by a “court of competent jurisdiction”. (section 52(1) can be invoked by any court or tribunal) o a superior court, which is a court of general jurisdiction, is always a court of competent jurisdiction: R v Smith o a trial court, even if it is not a superior court, is a court of competent jurisdiction to hear an application for a remedy that relates to the conduct of the trial, for example, the exclusion of evidence that has been obtained in violation of the Charter or a stay of proceedings that have gone on for an unreasonable time o an administrative tribunal is a court of competent jurisdiction if its constituent statutes give it power to apply the law and the power over (1) the parties to the dispute (2) the subject matter of the dispute and (3) the Charter remedy that is sought: Weber Range of Remedies o Subject to the important qualification that the remedy must be appropriate and just in all the circumstances of the case, there is no limit to the remedies that may be ordered under s 24(1) o They include “defensive” remedies, where the court nullifies or stops some law or act, for example, by dismissing a charge, staying a proceeding, quashing a search warrant or a committal or a conviction, enjoining an act, or declaring a law to be invalid. The exclusion of evidence obtained in breach of the Charter also falls into the defensive category, but the exclusion of evidence is subject to a special set of rules under s 24(2) o They also include “affirmative remedies, such as ordering a province to provide state-­‐ funded counsel to an indigent litigant (New Brunswick v G.(J.)) , ordering the return of good improperly seized (Champon) or a mandatory injunction requiring positive action o It has been suggested that the court’s discretion should be governed by 3 factors: each case presents own case by case careful analysis i. The redress of the wrong suffered by the applicant; ii. The encouragement of future compliance with the Constitution; and iii. The avoidance of unnecessary interference with the exercise of governmental power; iv. the ability of the court to administer the remedy awarded. But each case will present its own unique considerations. Types of
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Declaration o = a remedy that declares the legal position, but does not actually order the defendant to do anything o A simple declaration that the government is in default of its Charter duties would almost invariably be obeyed, and would therefore usually be an effective remedy Damages o The award of damages is sometimes an appropriate and just remedy for a breach of the Charter (Vancouver c Ward 2010) o Vancouver City v Ward ! Based on his appearance, police officers mistakenly identified W as the would-­‐be pie thrower, chased him down and handcuffed him. W, ehp loudly protested his detention and created a disturbance, was arrested for breach of the peace. He was the then strip searched and his car was impounded. The police had not grounds to charge him so he was released 4.5 hours after his arrest ! The provinces strip search and the city’s vehicle seizure violated W’s right to be free from unreasonable search or seizure under s 8 of the Charter ! The plaintiff was awarded $5000 because of the strip search and only a declaration for the seizure of his vehicle !
Goals stated for awarding damages: (1) compensation, (2) deterring future violations, (3)vindicate charter rights. Page 83 of 86 The language of s 24(1) is broad enough to include the remedy of constitutional damages for breach of a claimant’s Charter rights if such remedy is found to be appropriate and just in the circumstances of a particular case. STEPS TO DETERMINING DAMAGES: 1. The first step in the inquiry is to establish that a Charter right has been breached 2. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches 3. Once the claimant has established that damages are functionally justified, the rd
state has the opportunity to demonstrate, at the 3 step, that countervailing factors defeat the functional consideration that support a damage award and render damages inappropriate or unjust. ! Countervailing considerations include the existence of alternative remedies. In some situations, the state may establish that an award of Charter damages would interfere with good governance such that damages should not be awarded unless the state conduct meets a minimum threshold of gravity. 4. If the state fails to negate that the award is “appropriate and just”, the final step is to assess the quantum of the damages ! To be “appropriate and just”, an award of damages must represent a meaningful response to the seriousness of the breach and the objectives of s 24(1) damages o Where the objective of compensation is engaged, the concern is to restore the claimant to the position he or she would have been in had the breach not been committed o With the objectives of vindication of the right and deterrence, the appropriate determination is an exercise in rationality and proportionality. Generally, the more egregious the breach and the more serious the repercussions on the claimant, the higher the award for vindication or deterrence will be • In the end, s 24(1) damages must be fair to both the claimant and the state. Costs o The award of costs is sometimes an appropriate and just remedy for those Charter breaches that cause an inconvenience or delay to a litigant Exclusion of evidence o Evidence that has been obtained in breach of the Charter may be excluded as a remedy for the Charter breach, bit this remedy is regulated by s 24(2), which provides that the evidence shall only be excluded if its admission “would bring the administration of justice into disrepute” o Evidence that has been obtained in compliance with the Charter is NOT covered by s 24(2) and yet in some situation the exclusion of the evidence will be an appropriate and just remedy under s 24(1) Supercision of Court Orders
Remedies outside s 24(1) ! Not always necessary for a court to rely on s 24(1) to remedy a Charter breach ! For example, in exercising a statutory discretion, a court may properly be influenced by a relevant Charter breach ! R v Nasogaluak 2010: o Facts: accused had pleaded guilty and been convicted of impaired driving and fleeing from the police, offences that would normally attract a sentence of imprisonment. o Instead trial judge granted him a 12-­‐month conditional discharge coupled with a 12 month driving prohibition. Police had used excessive force in making the arrest and in preventing flight, and inflicted injuries on the accused. o Trial judge held: police actions were a breach of the accused’s s 7 right to security of the person and a reduced sentence was an appropriate and just remedy for the breach under s 24(1) o SCC: agreed there was a breach of s 7 which justified a reduced sentence but the court held the trial judge had been wrong to rely on s 24(1) as a justification for the reduced sentence o Sentence reduction was not an appropriate remedy under s 24(1), except in the exceptional case where it was the “sole effective remedy” for a Charter breach. However, under normal sentencing principles, a Charter breach that related to the circumstances of the offence or the offender could properly be taken into account in sentencing. o In this case, the police breach of the accused’s charter rights was properly taken into account in fixing the accused’s sentence without the need to invoke s 24(1). o COURT UPHELD THE REDUCED SENTENCE Page 84 of 86 Appeals ! Section 24(1) does not authorize an appeal from the decision of a court of competent jurisdiction ! The existence of a right of appeal will depend upon the rules of the court to which s 24(1) application was made. Legislative Enforcement ! Federal Parliament and the Provincial Legislatures, acting within their own legislative jurisdictions, are of course free to make whatever provision they choose for the better enforcement of Charter rights. But the Charter of Rights does not confer any new legislative power. Section 31 declares that “nothing in this Charter extends the legislative powers of any body or authority” ! It is clear from s 31 of the Charter that no similar remedial or enforcement power in the federal Parliament is to be inferred from the provisions of the Charter. ! Enforcement of the Charter is the function of the courts, by virtue of s 52(1) or s 24 REQUIRED CASES FOR REMEDIES VRIEND v. ALBERTA [1998] FACTS: ! The plaintiff who had been discharged from his employment by reason of his homosexuality. The act prohibited discrimination on various grounds but didn’t cover sexual orientation. He claimed that there was no recourse due to the OMISSION of sexual orientation in the labour act. ! SC reviewed Alberta’s Individual Rights Protection Act, which prohibited discrimination HELD: ! The court agreed that the omission of sexual orientation from the Act was a denial of the plaintiff’s equality rights. Held that the constitutional defect be cured by reading into the statutory lists of grounds of prohibited discrimination the words “sexual orientation” ! Although severance takes away words that the legislative body enacted, and reading in adds words that the legislative body did not enact, these radical results need not be other than temporary o It’s always open to the legislative body to enact a new legislation if the legislators are not content with the scheme as amended by the courts. In this sense, the democratic legislative process retains the last word. !
The court looked at the language of section 32 and found that it does not limit to only positive acts. It is not only to protect against encroachment on rights or the excessive exercise of authority, as McClung suggested, rather it is a tool for citizens to challenge the law in all its forms. VANCOUVER (CITY) V WARD, 2010 SCC 27, [2010] 2 SCR 28 FACTS: • Vancouver and British Columbia Police violated the Charter rights of the claimant due to an unreasonable search. HELD: • As a result, the trial judge awarded the complainant damages for the Charter breaches. • In this case, the Supreme Court of Canada (SCC) considered whether government actors can be made to pay financial damages to individuals after infringing upon their rights under the Canadian Charter of Rights and Freedoms. • The Supreme Court wrote, “damages may be awarded for Charter breach under s. 24(1) where appropriate and just,” and that in this case, they were justified in giving damages for the illegal search • Ward suggests that section 24(1) damages, like any good Charter formulation, are awarded based on a two-­‐stage, multi-­‐part test. o First, of course, it will be for the plaintiff to establish that his or her Charter rights have been infringed. o Second, and more substantially, the plaintiff must demonstrate that damages will fulfill one or more of the objects of s. 24(1) damages: 1. compensating the claimant for loss and suffering; 2. vindicating the right by emphasizing its importance and the gravity of the breach; and 3. deterring state agents from committing future breaches. • Ward represents a step forward in the cause for state accountability and protection of civil liberties by recognizing a civil action against government for constitutional breach Page 85 of 86 CHARTER ANSWER STRUCTURE (1) Application of the Charter: s 32, Constitution Act, 1982 ! Does the Charter apply in this situation? o GOVERNMENT ACTION ! S 32-­‐ this charter applies o To the parliament and government of Canada in respect of all matters within the authority of parliament… o To the legislature and government of each province (2) Is there an override provision in the law: s 33 ! Note: Only mention this if there is an impugned Act (legislation). Does not apply to government actions. ! Applies if your challenging the validity of act ! 5 year limit period then re-­‐apply for the act to stay fine even if it breaches charter (3) Infringement of a Charter right ! The onus is on the applicant/claimant to demonstrate that an infringement has occurred (presumption of constitutionality) a. What is the purpose or effect or the law/action (Big M) b. Does its’ purpose or effect infringe a Charter right? [Note: This is where you outline the law of the relevant Charter right in relation to how what the right protects, e.g. does the effect of the legislation infringe freedom of religion? To answer that, first must define what “religion” is as per s 2(a)] i. language s 133 ii. aboriginal s 35 iii. religion s 2(a)-­‐ iv. s 7 – life, liberty and security of person v. equality s 15 c. Is the infringement more than trivial? (No Charter right, including freedom of religion, is absolute. * where the effect of a law on a charter is trivial or insubstantial, there is no breach of the Charter (r v Jones) – say this always.! (Charter prohibits only burdens or impositions on religious practice that are non-­‐trivial) (R v Jones) (4) Section 1 analysis (Oakes) ! Burden shifts to legislature/Parliament/government to justify violation The Charter does not guarantee rights absolutely. The violation may be lawful if it results in a reasonable limit, prescribed by law, that is demonstrably justified in a free and democratic society. a.
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Is the limit “prescribed by law”? (Consider whether the law is accessible, precise and not vague. Re: accessibility, a statute or regulation suffices: Dolphin Delivery. Re: precision and vagueness, make a judgment call) i. If its statute-­‐ its prescribed by aw ii. If its common – depends-­‐ make a call (dolphin delivery) 1. Common law does influence the way a charter is interpreted and therefore it indirectly applies to the common law (Hill v Church f Scientology) The next step is to apply the Oakes test: b. Does the legislation/action have a sufficiently pressing and substantial objective? c. Does the legislation/action pass the proportionality test? i. Is the limit rationally connected to the legislative purpose? (the law’s means must contribute to the achievement of its objectives) ii. Does the limit minimally impair the right? (Means chosen must be the least restrictive manner of accomplishing the objective of the impugned provisions. Requires a consideration of alternatives available to government. In making this assessment, the courts accord the legislature a measure of deference, i.e. there is a margin of appreciation) (Edwards Books) iii. Is the law proportionate in its effect? In other words, when one balances the harm done to the claimants’ (list the right infringed) against the benefits associated with (state what the impugned law essentially does), is the limit on the right proportionate in effect to the public benefit conferred by the limit? -­‐ Salutary effects? -­‐ Deleterious effects? -­‐ Balancing the salutary and deleterious effects of the law, I conclude that the impact of the limit on (name the infringed right) (is/is not) proportionate. d. Conclusion? (e.g., Based on the analysis above, I conclude that I conclude that the limit on ____ is/is not justified under s 1) Page 86 of 86 (5) Overall conclusion ! Therefore, _____ (does/does not) offend the Charter, and is therefore constitutionally (valid/invalid) (6) Remedies: ss 24 & 52 ! The next step would be a Court imposing a remedy