UNIT #5 Equality rights
​
What is equality?
●​ What does it mean to be treated equally?
●​ Individual vs. collective approaches to discrimination
Freedom of association (s. 2(d))
●​ Right to join associations
●​ Right to seek out other constitutional rights
●​ Right to come together and negotiate
●​ S. 2(d) protects employees and prevents employers from holding all the cards
●​ Powerful unions are the ones that win negotiations most often
○​ Example: police unions
Equality rights
●​ In section 15, Bill of Rights, Human Rights Code
●​ In laws such as employment, education, etc.
●​ Equality is considered important
●​ Inequality is very potent in Canada's history
●​ What does the right to equality mean?
○​ Equality under the law
○​ Equality in socialization
○​ Equal opportunity, removing formal barriers
○​ Equal compensation
○​ Equal outcomes
Charter is an effects based document
●​ Aristotle said you should treat likes alike - meaning you can treat groups differently
as long as the whole group is treated the same
●​ First Nations women who married white men lost their status but First Nations men who
married white women kept their status
○​ All women treated the same, all men treated the same
○​ Example of Aristotle
○​ Similarly situated
●​ What if treating people differently got the desired outcome?
○​ Equity
How do we approach the question of discrimination?
●​ Approach as individual issue or as a collective issue
●​ Individual:
○​ Only concerned with individuals who are victimized by specific acts of
discrimination can seek out a remedy, remedy is supplied by the person
discriminating
●​ Collective:
○​ Group vs. system
○​ Unintentional systemic issues
●​ No single individual at fault (laws passed by parliament;
capitalism)
○​ Society's goods should be distributed based on merit
●​ Merit is randomly distributed across society
1.​ Every group has those who excel or are
impoverished
●​ If you find one group doing very well, one of two things is
happening
1.​ Good are not being distributed according to merit
2.​ Education is not able to account for merit
Solution
●​ Ameliorative treatment of disadvantaged groups
○​ Affirmative action
○​ How to make up for unlevel playing field
TUESDAY LECTURE
3 criticisms of collective approach
1.​ Under inclusive
○​ Some individuals who are not part of a group targeted for ameliorative
treatment may have similar disadvantages
●​ May be true but you can make adjustments and expend who
you are helping
2.​ Over broad
○​ By focusing on groups, it ignores disparities within the groups
○​ There will be some people in the group who are less disadvantaged than
others in the group
●​ May be true but it won't address situations where it doesn't
matter about economics when that group is the subject of
prejudice (sexism, racism, homophobia, etc.)
3.​ Who bears the burden of the remedy?
○​ The person who does the act of discrimination
○​ Gets harder to identify in affirmative action
●​ These programs may impose burdens on individuals who did
not have anything to do with the discrimination in the first place
○​ Hard to avoid and tailor policy to limit this
S. 15 of Charter - what does it say?
●​ How do we protect equality rights
●​ Seen as having the largest potential for policy impact
○​ Delayed implementation of this part of the charter until 1985 (rather than
1982) so government could proactively change laws
●​ S. 15(1)
○​ Contains 3 declarations and 4 kinds of equality
●​ Every kind of individual is equal before and under the law
(classic rule of law)
●​ Everyone has right to equal protection and equal benefit of the
law without discrimination
●​ Lists prohibited grounds of discrimination:
●​ Race, colour, ethnicity, religion, sex, nationality,
●​ Age, mental and physical disability
○​ What does it mean to have 'equal benefit and protection'?
○​ Says individuals have right to equality 'without discrimination'
●​ Can we make distinctions without being discriminatory?
○​ Are the above grounds the only ones that can be discriminated on?
○​ People on the advantaged side of the groups - can they claim equality
rights/discrimination
●​ Andrews (1989)
○​ Lawyer told that he had to be a Canadian citizen to practice law in
Canada even though he was a permanent resident
○​ First case about section 15
○​ Kapp (2008)
○​ Discrimination = disadvantage
●​ Can be material harm (money, education, job, etc.) or it
reflects prejudice (assumptions of ability, etc.)
●​ That discrimination must be on the basis of a personal
characteristic unrelated to merit/capability
●​ 'Bona fide' - related to merit
●​ Two categories of personal characteristics
●​ 'Enumerated' grounds (written down in
the Charter) - not exclusive
●​ 'Analogous' grounds (like the listed
ones) - analogies
●​ 'Insular (unable to participate
in politics - historically
sidelines) and discrete (easy
to identify if you belong to the
group)' minority (not just
numerically)
●​ Historically disadvantaged
group (not disadvantaged
just by the law being
reviewed)
●​ Personal characteristics,
unrelated to merit, that are
'immutable' (things that
cannot be easily changed
about ourselves or
something that the State has
no business asking us to
change)
●​ Sexual orientation case
(1995) - part of this week's
reading
●​ Recognition of it
in the Charter
meant that
Statutory Humans
Right's Codes had
to reflect what
was put into the
Charter
●​ Who can claim equality rights?
○​ Purpose of s. 15 is to stop government from perpetuating group
disadvantage or prejudices or creating any new disadvantages because
of stereotypes
●​ S. 15(2)
○​ Protection of affirmative action programs
○​ Says, if the distinction mad in law is in line with affirmative action, then it
is not discrimination - it is a measure under affirmative action in order to
address discrimination (can't violate s. 15(1) if it complies with s. 15(2)
○​ Court's position - no such thing as 'reverse discrimination' - not
discrimination if you're trying to fight historic discrimination - defined in law
○​ Fraser (2020) - first case of adverse claim by women accepted (part of
this week's reading)
●​ RCMP policy with part-time job sharing
●​ All women with child-care responsibilities - wanted to fully
contribute to pension even though not working full-time
●​ Other members of RCMP could do this - only one's that
couldn't were these women in this program
Key interpretative questions under s. 15
●​ How literally to read 'equal benefit and protection'?
●​ Distinctions vs. discrimination?
●​ Exclusive grounds?
●​ Advantaged groups?
S. 15(2) vs. 15(1)
UNIT #6 Indigenous Rights
Part 1 - Historical Background
●​ 'Oh Canada, our home on Native land…'
○​ Thomas King, The Dead Dog Café
Doctrine of Discovery
●​ Indigenous Inferiority
●​ Terra Nullius
●​ 'Discovery' grants sovereignty
The Royal Proclamation of 1763
●​ Asserted English Crown sovereignty over all land in British North America
●​ Protected 'the several nations or Tribes of Indians' and their 'lands and territories'
●​ Crown must deal 'fairly and honorably' with Indigenous Peoples
●​ Indigenous to European land transfers via treaties
●​ Crown has 'fiduciary' duty
●​ 'Nation-to-nation' approach
○​ Ex: Treaty of Niagara, 1764
Treaty of Niagara, 1764
●​ Signed by 24 nations and Crown
●​ Embodied in a wampum belt
●​ Nation-to-nation agreement
Indigenous-State Relations
●​ Historic Treaties
○​ 1700's - 1921
○​ Nation-to-nation
○​ Mutual benefit
○​ Coexistence
●​ Indian Act, 1876
○​ Act of Parliament
○​ Government asserts power over 'Indians'
○​ Replaced traditional leadership with elected band councils
○​ Indigenous practices declared illegal
○​ Determines who is (or is not) 'Indian'
TUESDAY LECTURE
Indigenous Peoples and the Constitution
●​ 4 main provisions address Indigenous Peoples
1.​ Royal Proclamation of 1763
●​ Crown sovereignty, recognizes Indigenous Peoples and their
'lands and territories'
●​ Duty to negotiate for land; fiduciary duty
2.​ Section 91(24), Constitution Act, 1867 (BNA Act)
●​ Federal government exclusive jurisdiction over 'Indians and
Lands reserved for the Indians'
●​ What does the federal government get to go?
What do the provinces get to do? (most things are
done by the federal government)
●​ Example: Indian Act (1876-); rejects 'nation-to-nation approach
●​ Reject idea that Canadian government and
indigenous governments can work together
3.​ Section 35, Constitution Act, 1982 (Not in the charter - s. 1-34 of
constitution act 1982)
●​ Recognizes and affirms existing Aboriginal and Treaty rights
●​ Prevents federal government from unilaterally extinguishing
Indigenous rights
●​ Indigenous people not included but consulted (can't vote or
anything)
●​ Elevates treaties to the same status as charter (constitutional
law)
●​ They can't be extinguished
●​ Defines 'Aboriginal' peoples: Indian (people covered by the
Indian Act - First Nations), Inuit (people in the north), and
Metis (product of indigenous relationships with colonists)
peoples
●​ First mention of Metis people
●​ Guarantees these rights to men and women equally
○​ Protects modern land claim agreements
■​ S. 35 will apply when the agreements are set in place (not just one's that
existed in 1982) and they will become constitutional law
1.​ Section 21, Charter of R&F
●​ Shields Aboriginal and Treaty rights from the charter (e.g., s. 15 equality
rights)
●​ Can't use the charter to attack Aboriginal rights (sort of like a permanent
Notwithstanding Clause)
●​ Includes Royal Proclamation
●​ Functions as a permanent, comprehensive notwithstanding clause
"Aboriginal' vs. 'Treaty' Rights
●​ Aboriginal rights
○​ Stem from the traditional use and occupation of lands by aboriginal
peoples
○​ Mentioned in the charter
●​ Treaty rights
○​ More explicit and narrower, described in treaties or modern land claims
agreements (e.g., Nisga'a or James Bay II)
●​ Broader aboriginal rights often exchanged for specific treaty rights
○​ Right to fish (aboriginal) vs. right to fish this much at this time inn this
place (treaty)
●​
Indigenous Rights Distinct
●​ Not specified but vary by land
●​ Some envisioned self-government, later ones less so
●​ Group or group-differentiated rights
○​ Group/collective right = exercised as a group (e.g., land claims, self-government)
○​ Group-differentiated = exercised by individuals within that group (e.g., treaty right
to hunt)
Sparrow v. The Queen (1990)
●​ Most comprehensive treatment of s. 35
●​ Convicted of fishing with a net that was too long and didn't comply with their licensing
agreement
○​ Didn't dispute any facts but stated that he had the Aboriginal right to fish
and that they couldn't tell him what net to use
●​ 'The existing Aboriginal and treaty rights of the aboriginal peoples of Canada are
hereby recognized and affirmed'
●​ Addressed two major questions
○​ What does 'existing' mean?
○​ What does phrase 'recognized and affirmed' mean?
●​ 'Existing' = extinguished rights stay extinguished; s. 35 will not undo this
○​ Unextinguished rights protected by s. 35 and can't be extinguished
○​ Pre-1982 extinguishments had to have been explicit (not implied)
○​ Rights not frozen with traditional meaning; modern technology for
traditional practices allowed)
1.​ Right to hunt with technology used before guns? Right to fish
before motorboats?
2.​ Can use modern technology - right to the activity
●​ 'Recognized and affirmed'
○​ SCC 'read in' a limitations clause to s. 35: 2 steps (section 1 only applies
to the charter s. 1-34 and not s. 35)
1.​ 'Adverse impact' on right? Claimant must demonstrate that
government's law is unreasonable, and imposes undue
hardship
●​ Burdon of proof on claimant not the court like in the
charter (Like Oakes Test but harder for Indigenous
Rights)
2.​ Is adverse impact, government must justify legislation; court
considers:
●​ Is there a valid legislative objective? Examples of
what's a valid objective:
●​ Environmental conservation, public
safety, economic development, building
infrastructure and settling foreign
populations
●​ Minimal infringement of rights?
●​ Consultation with Indigenous group? (arguments
made that it should be changed to require an
agreement)
●​ Fair compensation if expropriation?
●​ SCC accepts idea that self-governance and sovereignty had by Indigenous people is
limited
Aboriginal Title: Calder, 1973
●​ Governments didn't accept concept that Indigenous peoples own their land - legal
position of federal legislation
●​ Didn't acknowledge indigenous titles to land
●​ 1973 is when this changed
●​ First time SCC recognized possible existence of Aboriginal title
○​ Legal ownership or the land not extinguished before or after confederation
○​ If you can prove that the land was never given up or traded, then a title
still probably exists
○​ Reverses federal policy about just ignoring the existence of titles for
indigenous peoples
○​ Didn't revive extinguished title, or prevent extinguishment
○​ Prompted land claims negotiations by federal government
●​ Most provinces ignore the outcome of this case until the 1990s
Delgamuukw v. BC, 1997
●​ How would you prove that you have the title? - they don't win their title claim in this
case
●​ What do you have to do to prove that you have a title to the land
○​ Takes until 2014 to successfully claim land to the SCC
●​ Clarified requirements of Aboriginal title
○​ First successful Aboriginal title claim in SCC not until Tsilhqot'in Nation v.
BC, 2014
●​ Aboriginal title claim must prove 3 things:
○​ Land occupied prior to European contact/sovereignty
○​ Occupation exclusive (you were the only ones there)
○​ Continuously occupied from pre-contact (since before European contact)
●​ Oral history evidence accepted to support a land claim (this is how Indigenous
people keep records)
●​ Consultation with and compensation for Aboriginal title-holders
●​ Title rooted in prior occupation of land (not Royal Proclamation of 1763)
○​ British crown mentions 'Indians and their lands'
●​ Inherent right to self-government?
Beyond Delgamuukw
●​ Cited in other land claims, ex: Tsilqot'in
●​ BC government negotiates first comprehensive treaty with a First Nation: Nisga'a
Treaty, 1998 - nation to nation treaty
●​ 2000+ sq. km of Crown land transferred to Nisga'a, exempted from Indian act
●​ Nisga'a now have legal authority to conduct their own affairs
●​
○​
UNIT #7 Life, Liberty & Security of the Person I
S. 7 Life, Liberty and Security of the Person
●​ Guarantees everyone 'life, liberty and security of the person'
●​ 'And not to be deprived thereof except in accordance with the principles of
fundamental justice'
○​ This right has a built in internal limit
○​ They can be violated if it's in line with the fundamental principles of justice
○​ In addition to external limit like s. 1 (Oakes Test)
●​ Three distinct concepts
○​ Don't have to claim violation of all three, just one
●​ Life
○​ Avoided in court setting for a long time (court didn't want to engage)
○​ Chooli (2005)
●​ Long wait times in healthcare system violate the right to life long waits increase chance of mortality
○​ Borowski (1989)
●​ Pro-life challenge to Canada's abortion laws
●​ Having abortions at all, even when mom's life/health is at risk,
violated the 'right to life' of the unborn fetus (his claim)
●​ Thrown out by SCC as moot (no live legal dispute left)
because the abortion law had already been struck down
○​ Daigle v. Tremblay (1989) - in Quebec
●​ Daigle was pregnant by ex boyfriend (Tremblay) and she
wanted an abortion, he said no and didn't consent as the
father
●​ He launched 'father injunction suit' to block her from having an
abortion because the father didn't consent (he initially won)
●​ Quebec's Human Right's act: does a fetus have a right to life?
●​ She goes to Boston and has an abortion before SCC makes a
decision but they didn't find it Moot
●​ She violated a court injunction and could go to jail
●​ Was the original injunction to block her from an
abortion valid? If so - goes to jail
●​ Injunction decision
●​ Charter does not apply because it's between two
individuals (even though state told her what not to
do with her body)
●​ QC HR act still applies
●​ Fetus is not an person yet so they don't
have rights
●​ Father doesn't have the right to block an
abortion (he doesn’t have to consent)
○​ Extradition case
●​ Extraditing someone from Canada to a state with the death
penalty - didn't want to do this
●​ Only mentions liberty and security of person - not the 'life' part
of this
●​ Liberty
○​ Means freedom from physical restraint by the State
●​ Default right against being incarcerated
○​ When can you be held? (applies with immigration)
●​ 'Security Certificates'
●​ Show up, assessed by immigration department and they
decide if you're a security risk but they don't have to tell you
why you're deemed a risk
○​ Charkaoui (2007)
●​ Challenges security certificate
●​ Violates liberty and security
○​ Freedom from state compulsion
●​ Freedom against being forced to do something by the state
○​ Autonomy - idea that you have freedom/autonomy to make important life
decisions (fundamental to your life)
●​ Should be able to do this without undue state interference
●​ Having a family/children (abortion?), where you live, identity
(sexual/gender)
○​ Traditional, laissez-fair, negative freedoms
●​ Security of the Person
○​ Freedom from harm by the state
●​ Default that the state should not hurt you
●​ Not just physically (psychological and emotional harm too)
○​ How you raise your children, end of life decisions, ability of sexual assault
to seek therapy in confidence, termination of pregnancy
●​ Mostly negative rights (freedom from…) but what about positive rights (right to…)
○​ Does the state have an obligation to do something for me
○​ Right to life - right to clean water, shelter, food security
○​ Autonomy - right to healthcare
○​ Does s. 7 imply economic/environmental rights?
○​ Canada doesn't have many explicit, positive rights (especially in
constitution)
TUESDAY LECTURE
Positive rights in s. 7? - Gosselin v. Quebec (2002)
●​ Does the state have to do something to ensure your life, liberty, and security or
person?
●​ Can Quebec government cut social assistance benefits for people under 30, live
alone, and capable of working while not in a job training program?
○​ Gosselin said that cutting it will violate their right to security of person
(can't afford food, rent, etc.)
●​ SCC said s. 7 'does not place positive obligations on the state'
○​ Saying no to positive rights in s. 7
○​ Said the same thing in Auton v. BC (2004)
●​ Healthcare support for children with autism
●​ Climate change?
'Except when consistent with the principles of fundamental justice' - s. 7's internal limit
●​ State is allowed to violate if it's consistent with principles of fundamental justice
●​ Onus on complainant to prove
●​ Procedural dimension
○​ They have to follow their own rules
○​ How are they trying to do it?
●​ Substantive dimension
○​ Not unfair
○​ What did they do?
●​ What are the principles of fundamental justice?
○​ Approached on a case-by-case basis, no actual definition
○​ Have to have a high level of agreement that society actually thinks it’s a
fundamental principle
○​ Not a fundamental justice
●​ Having to respect human dignity
●​ Dignity is subjective
○​ Harm principle
●​ Not significant enough to be fundamental
○​ 3 'big ones' (Bedford, 2013)
●​ Overbreadth
●​ Law that someone is challenging (using s. 7 to
challenge) restricts individual rights more than
necessary to accomplish its objective
●​ Scope of rights violations (similar to minimal
impairment)
●​ Gross disproportionality
●​ Benefits outweigh the costs of the violation
●​ Depth of rights violation
●​ Arbitrariness
●​ Rational connection between limit on rights and the
objective
●​ Either there is no good objective or it doesn’t make
sense
○​ There are more fundamental freedoms
●​ State detains people without a fair judicial process
●​ Know why you're being held, chance to answer and
answer before an impartial judge
●​ Severe punishment without proving mens rea (guilty
mind/intent)
●​ BC motor vehicle case
●​ He had a criminal record but they
couldn't prove that he intended to
commit the crime
●​ Vagueness in the law
●​ 'No fair notice' - couldn't have known you were
breaking the law (retroactive laws - making
something legal illegal and then prosecuting if you
did it when it was legal)
●​ Too much state discretion when enforcing the law especially if bias (medical marijuana and who could
access it before it was legalized)
●​ Unequal application of the law
●​ Tied to vagueness
●​ Seen in Morgentaler case
R. v. Morgentaler (1988) case study
●​ Before 1969, no such thing as a 'legal abortion' - it was a form of homicide under
criminal code but it had a special defence (common law defence of necessity)
○​ If mother's life or health was 'imminently threatened'
●​ Changes in CCC in 1969 - decriminalizing 'moral offences'
●​ S. 251, criminal code
○​ Distinguish between legal abortions ('therapeutic abortions') and illegal
ones
○​ Creates more than just a defense, an actual category
○​ Illegal ones still punishment by law
○​ What does 'therapeutic' mean?
●​ 'To prevent danger to the woman's life or health'
●​ Life and health not the same thing - health left
undefined
●​ Danger, not imminent threat
○​ How would you get a legal abortion? Process:
●​ Province approves hospital to perform the abortion
●​ Hospital establishes 'T.A.C' (Therapeutic Abortion Committee)
- 3 doctors other than your own
●​ Woman and doctor apply to TAC for approval (majority vote
from TAC to get abortion)
●​ This approval would shield you from prosecution under
criminal code
●​ Henry Morgentaler
○​ Doctor who argued that decision to have abortion should be between a
woman and her doctor, not an entire committee
○​ Opens clinics that perform abortions without getting the approval required
by law
○​ Keeps getting acquitted by jury because they also think the law is crap
○​ Started these clinics before the charter - this case happens after charter
○​ Thinks that s. 251 violates s. 7 of charter and violates a woman's right to
her body
UNIT #8 Life, Liberty & Security of the Person II
R. v. Morgentaler (1988) case study
●​ Internal limit - principles of fundamental justice
○​ Courts can limit your right to life, liberty and security of the person as long
as it falls within the principles of fundamental justice
●​ Big 3 since Bedford (2013)
●​ Overbreadth - scope of rights violation (involving
more people than you had to)
●​ Gross disproportionality - depth of violation (how
deeply did you violate the rights)
●​ Arbitrariness - rational connection between violation
and objective?
●​ Morgentaler - unequal application of the law across the
population
●​ Famous abortion case
●​ S. 251 in Criminal Code - therapeutic (legal) abortion
○​ Type of medically necessary abortion that is exempt from criminal
prosecution
○​ Approval committee (TAC) - 3 doctors
●​
●​
●​
●​
●​
●​
●​
●​
●​
○​ When necessary to protect 'life or health' of mother
○​ Had to be done in a hospital that had been approved to perform abortions
○​ Morgentaler thinks that s. 251 violates s. 7 of charter
He wins case - 5/2 decision
○​ 3 different 'majority' decisions
○​ Very different reasons for striking down s. 251
●​ Makes it difficult for government to respond and how to
approach the problem
Middle ground
○​ Justice Dickson and Lemer
Court decision:
○​ The process creates delays and these delays increase the risk to the
woman's physical health
○​ Also impacts psychological health of the woman (not knowing what will
happen to you and your body)
○​ Interferes with personal security
Needs to show that it is inconsistent with principles of fundamental justice to have
something stricken down
3 administrative flaws in the TAC system that made it unjust
○​ Province didn't have to allow any hospital to perform abortions (restricts
access)
○​ Some hospitals got approval but didn't create TAC (hospitals refuse to
perform abortions) (restricts access)
○​ 'Life or health' of the mother - 'health' left undefined (lack of consistency)
●​ Definition varied across the country
●​ Some only used death, some used physical health, some used
psychological and physical health
What does 2. 251 do
○​ Provides defense against the criminal charge of having an abortion
○​ But because of above administrative flaws, the defense is not equally
available across Canada (unequal access to defense in criminal law)
Unequal access is a principle of fundamental justice
○​ Makes it unjust
○​ Also applies to equality rights - only affects women and among women,
they don't have equal access
Only one judge (the only female - Justice Wilson) said that abortions should be legal
○​ Bodily autonomy, etc.
What Dickson does is try to focus on process
○​ Not attacking the substance of abortion laws (regulations or lack thereof)
○​ Procedure created by government doesn't work well and that's the issue
being discussed
○​ Sometimes hard to separate substance and process - Morgentaler is an
example of this
●​ TAC procedure creates waiting period, local enforcement
(variation) between TACs - this wasn't an accident
●​ National standard with local enforcement
○​ Delays and local variation are the issue (both process and substance)
●​ Have to get rid or reduce the delays and harmonize
enforcement across provinces/municipalities
●​ Never talk about right to life of the mother
Chaoulli v. Quebec (2005) - implications of Morgentaler for health care
●​ Addresses issue of long wait-times in hospitals and for surgeries
●​ Can Quebec (or other provinces) ban private health insurance when the public
system has long wait-times for medical procedures?
●​ Quebec loses case 4/3 but using Quebec human rights code rather than charter so it
can't apply to other provinces
●​ Canadian health care
○​ We pay into a pool of money, doctor files to provincial government and
the government pays them
○​ A lot of stuff it doesn't cover though (dental, eyecare, etc.)
●​ Private insurance does exist and you can get it
○​ In most provinces, you can't get private insurance for things that are
already covered under public healthcare
○​ Have to be entirely private or entirely public when opening a clinic
●​ Not about private healthcare, actually about private health insurance
●​ Long delays for knee and hip replacements
○​ While waiting, low quality of life (pain, abilities, etc.)
●​ If public system is doing such a bad job, why can't I get private insurance
●​ Relation to Morgentaler:
○​ The delays increase patient mortality, stress, injury
○​ Yes, section 7 is violated
○​ Both life and security of the person are being violated
●​ Is the delay and harm consistent with principles of fundamental justice?
●​ All judges agree that s. 7 is violated, but split 3/3 on if principles of fundamental
justice are violated
○​ Unjust:
●​ Arbitrariness, irrational connection, not a minimal impairment
●​ No need to ban private insurance, you can have both public
and private systems at the same time
○​ Just:
●​ Not arbitrary - have to look at objective, why is the system set
up like this?
●​ Objective is thick
●​ To provide high quality healthcare at a
reasonable cost for as many people as
possible in a manner consistent with the
principles of efficiency, equity, and fiscal
responsibility
●​ You can have a mixed system of private and public
but it will become two-tiered
●​ Rich people get better healthcare and
poor people get what's left which is
reduced quality
●​ Overbuilt healthcare system is no more in the
public interest than one that has delays (falls short)
●​ Already spending almost half the public
money on healthcare in most provinces
and it's still a terrible system, there isn't
more money to give even with
privatization
●​ No ruling on Charter (because it was split 3/3)
●​ Gave Quebec a year to create a system that would allow some private health
insurances
○​ Private insurance is allowed only for procedures that the public system
can't seem to handle (long waits, hip/knee replacement, etc.)
TUESDAY LECTURE
Medical Assistance in Dying (MAID): Rodriguez (1993) to Carter (2015)
●​ Suicide was decriminalized in 1972
○​ S. 241 of CCC prohibited others, including doctors, from assisting in
suicide
●​ 1993 - Sue Rodriquez challenged this
○​ Woman suffering from ALS - lose control over their body (mentally
competent but not physically competent)
○​ Wanted to live as long as possible but wanted to end her life when her
pain got too bad - at this point, she wouldn't have the physical ability to do
so
○​ Wanted assistance from a doctor to take her life
●​ She would push the button but it was illegal to set the system
up for her to do that
○​ Said that law discriminates against disabled bodies (able-bodied people
can take their own life but disabled people can't)
●​ Disabilities protected
○​ Law violated section 7 right to security of the person (state cannot harm
you/cause you to suffer physical or emotional harm) - law causes her to
life in severe physical and emotional stress
●​ Also liberty issue - the doctor that helped her would suffer
incarceration
○​ Principles fundamental justice - no, it violates her dignity
○​ 5/4 decision against her - majority says yes, there was a violation of
reasonable under s.1
●​ Oakes - s. 241 has a pressing and substantial objecting of
protecting and maintaining respect for human life
●​ Majority - no system of assisted suicide would protect
vulnerable people from abuse or being pressured into suicide
and so the only approach is to ban all assistance in dying
●​ Under s. 7 - claim fails (what the majority says)
●​ Security of person is being violated but majority
thinks that it is fundamentally just (consistent with
principles of fundamental justice)
●​ Reject claim that dignity is a fundamental justice
(too subjective, too hard to measure)
●​ See no consensus in society in favour of assisted
suicide
●​ Need to protect vulnerable people in society
●​ Protecting the sanctity of life is a principle of
fundamental justice
●​ Rodriguez is 'choosing death over life'
○​ Decision vulnerable to reversal
●​ Baby boomer generation getting older and they tend to fight for
more individual rights (will want to control the end of their life)
●​ Why do you need to have consensus for a rights claim? mistake by court, don't have to show consensus around issue
but have to show consensus around principle of fundamental
justice
●​ A lot of weight put on the 'slippery slope' of opening the door
for those of sound mind but it harming vulnerable people
○​ 2012 - BC lower court looked at Rodriguez outcome and said they weren't
gonna follow it (need to have a good reason to not follow SCC)
●​ Need to carve out an exception for people like Rodriguez 'fully informed, non-ambivalent, competent adult'
●​ Personally requested, terminally ill, physically
incapacitated
●​ The person in question consents
●​ Carter
○​ Result of 2012 decision in BC - challenge all the way to SCC
○​ Use similar argument to Rodriguez
○​ Looks at other countries around the world that has MAID and said that it
doesn’t turn into the 'slippery slope' as the SCC claimed
●​ It is possible to design a system that doesn’t turn into the
slippery slope
●​ Everything else from Rodriguez falls apart once this is true not a minimal impairment anymore
○​ No longer reasonable under s. 1 (not a minimal impairment)
●​ Principles of fundamental justice - it's overbroad (violating
rights of people that you don't have to) and disproportionate
(forcing people to suffer when they don't have to)
○​ Issue of lack of consensus?
●​ Majority of Canadians want to have control over the end of
their life - SCC wrong again
○​ Positive rights claims?
●​ Public system has to provide this service
○​ SCC officially reverses Rodriguez
●​ Based on assumptions that don't hold true
●​ Ordered Ottawa to allow MAID with exceptions
○​ What happens next?
●​ Response by Trudeau government was more restrictive than
original
●​ Death has to be reasonably foreseeable (not aligned with
SCC)
●​ If suffering is the issue, why don't long-term
suffering cases apply?
●​ Mental illness doesn't apply - only physical
●​ Government said they didn't have to follow court
ruling, they could interpret the Code as well
●​ Successful challenges against this - Quebec said death
doesn't have to be imminent - Truchon (2019)
●​ 2021 - removed imminent death condition
●​ Living with 'intolerable suffering' and it
can't be fixed
●​ Mental illness will eventually be included in MAID
Evidence, rationality, criminal law (ex: supervised injection sites, sex workers)
●​ If you make laws in criminal law, they need to be based on evidence and reason demanded by s. 7
●​ Supervised injection sites
○​ 'Insite' Case - PHS Community Services, 2011
○​ Court unanimously ordered federal government to restore an exemption
to Canada's injection laws for a safe injection site in Downtown East Side
of Vancouver
●​ Reduce overdosing and transfer of disease with dirty needles
●​ Helped reduce death rates, helped reduce rates of HIV and
other diseases
●​ Did not increase drug use rates like a lot of people thought it
would
○​ Decision to end this exemption violates right to life and security of person
and liberty for doctors who kept going - people will die without these sites
●​ Grossly disproportionate
●​ If you're gonna make these decisions, they need to be based
in evidence and reason
●​ Sex work
○​ Bedford, 2013
○​ Prostitution was legal for most of Canadian history but everything around
it was illegal
●​ Couldn't solicit, couldn't own a brothel, couldn't hire security
but the exchange of sex for money was legal
●​ Forced women into street work - Robert Pickton (targeting sex
workers and killing them)
○​ Web of laws that make sex workers less safe than they needed to be
violated s. 7 of Charter
●​ How to make it more safe for workers and community?
●​ Allow women to have security/screening or operate out of safe
places
○​ Harper government said the issue is that prostitution isn't illegal - passed
in 2014 still hasn't been revisited
●​ So they made the act itself illegal
●​ Target of prosecution would be the consumers (pimps and
johns)
●​ Not the sex workers
●​ This isn't true
●​ Only time will tell if the courts will keep forcing the government to show evidence and
reason when using criminal law
○​ Bail policy
UNIT #9 Legal Rights: Fair Trial and Sexual Assault
Legal rights
●​ Sections 7-14 in charter
●​ Most frequently claimed rights
●​ Represent around 70% of all charter claims
●​ Slightly the most successful category
○​ 31% success rate compared to 25-30% of all charter claims
●​ Sections 7-14 lay out very familiar, procedural sounding rights for when you are
prosecuted by the state
○​ Right to counsel
○​ Right to be presumed innocent
○​ Right to a fair trial
○​ Right against unreasonable search and seizure
●​ Most commonly claimed
○​ Right against arbitrary detention
●​ When put all together, they reflect the due process model of criminal justice
○​ Procedural rights
2 models of criminal justice
●​ Crime Control
●​ Due Process
●​ Spectrum
○​ CCM (efficiency)
○​ DPM (reliability - reliable acquittal of the innocent)
●​ Correspond with 2 mistakes a justice system can make
○​ Is 'X' guilty?
●​ False positive - answer yes when the truth is no (convict the
innocent)
●​ False negative - answer no when the truth is no (acquit the
guilty)
○​ Which of the two mistakes are you more concerned with preventing?
●​ False positive - DPM aims to avoid
●​ False negative - CCM aims to avoid
○​ If you focus on one too much, you start to make the other mistake
○​ If you make too much of any mistake, you get into legitimacy issues with
the justice system
●​ Both models presume innocence - state has to prove guilt
○​ Also both make a distinction between two types of guilt
●​ Factual guilt
●​ Did you actually commit that act?
●​ Legal guilt
●​ Was factual guilt determined in a way that
respected the formal rules?
●​ Did you have a warrant, give them a
lawyer, etc.
●​ Moral responsibility for the act
●​ Mens rea (guilty mind/intent)
●​ Self defence
●​ NCR (mental disorder)
○​ State must prove both factual and legal guilt for both models
●​ DPM - should be harder to prove guilt to protect liberty
Crime control
●​ 'It's an assembly line' quickly and efficiently
●​ Main goal is to control/repress crime
○​ Deal with it quickly when it happens
●​ Police seen as positive force in society helping to maintain order
●​ Informal and administrative focus
4 stages of system
●​ Law enforcement (police)
●​ Prosecute (state lays charges in court)
●​ Trial (court)
●​ Appeal (higher court)
○​ Did the judge make a mistake?
○​ Jury bias?
○​ Any errors made?
●​ Distinction between first 2 and last 2 steps
○​ First two - administrative/executive (informal)
●​ More emphasis on this in CCM
●​ Want to resolve most cases before going to trial
●​ Only focus resources on strongest cases - don't lay
charges/arrest when they don't have a strong case
●​ Plea bargain (done at prosecution step)
●​ Filter out weak cases and pleas bargain the rest
●​ More than 70% don't go to trial phase in Canada
●​ Puts a lot of faith in police and prosecutor to do their job
correctly
○​ Last two - judicial/formal
●​ More emphasis on this in DPR
●​ Before an independent/impartial judge
●​ Adversarial
Due Process model
●​ Main goal is to maintain dignity/liberty
●​ Focuses on judicial side of system
○​ Formal, adversarial system is the best way to get the right answer/truth
Sexual Assault Law
●​ 2 charter values conflict
○​ Due process and sexual equality
●​ Charter has been and continues to be the reason why the courts/government
struggles with these cases
●​ What is it in Canadian Criminal Law
○​ We do not have a certain crime for sexual assault
●​ Rape removed in 1983 - treat it like an assault
○​ Section 265 in CCC that covers all types of assault
●​ Assault is 'the intentional (mens rea) application of force to
another person without their consent or when someone
credible threatens the use of force
○​ What is force
●​ At least touching (physical)
○​ Different sentences for different types of assault
●​ Sexual assault s. 271-273
●​ If assault maims, disfigures or endangers life - aggravated
assault
●​
●​
●​
●​
●​ S. 272 assault with a weapon
Distinction between assault and harassment
○​ Harassment - unwanted sexual attention (physical, verbal, non-verbal, all
forms)
○​ Sexual harassment not in CCC
○​ Human rights act, Canadian labour code
Person accused of crime called the 'accused' - presumption of innocence
Person who is the target of sexual assault is called the 'complainant' - presumption of
innocence
Outcome almost always turns to the issue of consent (did the accused have reason
to believe that consent was given)
TUESDAY LECTURE
2 trends:
1.​ The evolution of the meaning of consent (more CCM)
2.​ Development of procedural rules governing trails and evidence (more DPM)
Consent
●​ Actus rea (guilt act - factual guilt) and mens rea (guilty mind - knowingly committed a
crime)
○​ If any party says no at any point, any sexual activity after that is a crime
○​ Saying no satisfies actus rea
○​ Mens rea defence
●​ 'Honest but mistaken belief of consent'
○​ Mens rea defence
●​ Did not have guilty mind
○​ Limit on this defence from common law
●​ 'Air of reality' standard (Ewanchuk 1999)
●​ Is it remotely plausible honestly thought you had consent
●​ Up to the trial judge on that case
●​ Ewanchuk (1999)
○​ Job interviews in a mall parking lot
○​ Repeatedly sexually touched one of the women he was interviewing and
she repeatedly told him to stop
○​ He was repeatedly acquitted
●​ Courts thought that the complainant had implied her consent
(consistently said no and didn't try to escape because she was
terrified)
●​ Courts thought she implied consent because she didn't leave
(bullshit)
●​ SCC rejects lower court decision above
●​ Implied consent does not exist in Canadian law
(legal error by lower courts)
●​ Only defence he can make is 'honest but mistaken'
defence
●​ This didn't apply in this case
●​ Court defines that consent must be freely given (non-coerced)
○​ Important case because the air of standard defence is tightened
●​ Have to look at context
●​ But legal standard is that no means no
○​ Court affirmed that judgements made by trial judges around 'air of reality'
can be appealed
○​ What happens when someone doesn't consent but doesn't say consent
either
●​ Consent must be given (can't be inferred)
●​ Only yes means yes (lack of resistance doesn't mean yes)
Due process rules:
●​ Replacing fixed rules (categorical rules) with flexible ones
○​ Seaboyer (1991) - 'rape shield' laws
●​ 2 sections of CCC (276 and 277)
●​ Combat use of sexist stereotypes in court
●​ Prohibits certain types of evidence
●​ 276: prohibits sexual activity/history evidence (with someone
other than the accused)
●​ Anything introduced in evidence is subject to cross
examination
●​ If relevant to consent
●​ 277: prohibit 'sexual reputation' evidence
●​ Didn't have to have evidence of this
●​ If someone had sex with someone outside of
marriage they were likely to lie about it and
therefore, weren't credible
●​ Attacks things that violate the right to a fair trial (couldn't do
that with things according to defence)
●​ 276 struck down (sexual history evidence might be
useful)
●​ The fact that there were exceptions
means that it might be useful
●​ Court can't predict all the ways that it
may be useful in the future so it should
be left to the trial judge
●​ Basically rewrite law ('better' rape shield
law)
●​ Take a fixed rule and makes
it flexible
●​ Daviault (1994) and Brown (2022) - intoxication defence
○​ Self-induced intoxication defence
○​ Daviault (1994)
●​ Developed rule/defence of drunkenness - when can you use
intoxication as a defence
●​ Could use intoxication as defence when you don't need a lot of
mens rea (planning and carrying out first-degree murder while
drunk)
●​ Assault doesn't need a lot of planning so can't use drunk
defence
●​ Daviault said that you should be able to raise this in sexual
assault cases because it violates right to fair trial and doesn't
let person make a full defence case (extreme drunkenness)
●​ Doctors testified that he was so drunk that he did
not have any mens rea (not conscious or aware) automatism
●​ Court said that intoxication defence shouldn't be a fixed rule, it
should be able to be raised
●​ Parliament acts quickly and puts back the old common law
rule back (can't get super drunk and rape someone, makes
drunkenness an offence too)
●​ Stays in place until 2022
○​ Brown (2022)
●​ Carved out even more flexible rule for intoxication
●​ Intoxication can't be used as a defence for violent acts when
the risk of harm is reasonably/objectively foreseeable
●​ Court said that they don't think a defence of extreme
drunkenness will never work
●​ Moreso the unforeseen reactions
What are the consequences of replacing fixed rules with flexible ones
●​ Sends message to defence counsel to try these defenses
●​ Opens the door for judicial bias
○​ Flexible/discretionary rules allow for the bias of judges to come through or
for them to use their discretion
UNIT #10 Judicial Remedies
March 20th, 2025
'Ubi ius, ibi remeduim' - where there is a right, there is a remedy
●​ There is no right without remedy
●​ Remedy clause - section 24
○​ Lays out the power that judges have to remedy charter rights violations
S. 24 of Charter - 'remedy power'
●​ S 24(1) general remedy power
○​ Very broad
○​ Judge may grant 'such remedy as the court considers appropriate and
just in the circumstances'
●​ Basically, do what you think is right to fix the issue
●​ S. 24(2) exclusionary rule (criminal justice)
○​ Judges can exclude evidence from trial when it was obtained by violating
charter rights
○​ On paper, it's a revolutionary aspect - we didn't have a formal written rule
before 1982 to say that you could exclude evidence
●​ Sort of had common law but courts wouldn't focus on how the
evidence was obtained - they would focus on what was
obtained
●​ Focused on reliability - was evidence reliable and relevant
(could you trust the evidence)
●​ R v. Wray (1970)
●​ Understand the connection between how evidence
is collected and if you can trust it
○​ Constitutionalize the idea that how evidence is collected may undermine
its credibility
○​ Throughout 1970s, federal government set up law reform commission
●​ Pointed to failures in CJS - suggested more formal safeguards
around investigation and evidence collection
○​ Not an automatic rule
●​ Different from earlier exclusionary rules in the US
●​ Canada didn't make it a fixed law
○​ Should exclude 'if the admission (of evidence) would bring the
administration of justice into disrepute'
●​ Disrepute according to whom? - the judge
●​ Vagueness has allowed SCC to alter its approach to s. 24(2)
dramatically since 1982
●​ Refined in 2009 (Grant case)
SCC interpretation of s. 24(2)
●​ Why do we have 'should exclude 'if the admission (of evidence) would bring the
administration of justice into disrepute'' rather than something automatic
●​ In US, exclusionary rule developed as a response to police misconduct (civil rights
violations)
○​ If trying to change police behaviour, an automatic rule is a better deterrent
○​ Not the driving factor when adopted in Canada
●​ Bigger concern in 60s and 70s was wrongful convictions
●​ Try to get system to a point where people see it at reputable
and legitimate - so it needs to be accurate
●​ As a judge, do I worry about disrepute caused by admitting illegally obtained
evidence - what about disrepute caused by excluding good evidence and someone
going free because of it
○​ 'If admission of evidence' - implies don't worry about exclusion of
evidence - court says that it will still be an issue though
○​ SCC was worried about disrepute caused by both admission and
exclusion of evidence
●​ Mostly concerned about exclusion of evidence
○​ Court uses 'reasonable person' standard
●​ A reasonable person who is reasonably informed and impartial
- what would this person think when looking at all the evidence
●​ Judge knows law, facts, they are impartial by definition so they
are the standing for the reasonable person standard
●​ R v. Collins (1987)
○​ Court says 'fairness of trial is the guiding principle'
○​ Three factors to work through fairness (stays in place until 1997 when
DNA becomes more prominent)
●​ Does the evidence make the trail unfair?
●​ What type of evidence
●​ Self-incriminating evidence (confession
without counsel) or
●​ 'Real' evidence (everything else;
evidence that exists in the universe
regardless of the rights violation) (goes
to seriousness)
●​ Seriousness of Charter violation (deliberate,
flagrant, willful? Or honest mistake, necessary?) by Crown or police
●​ Acting in good faith? Were they
following the rules at the time of the
event even if rules have changed
between time of event and time of trial
●​ Was something/someone at risk?
(destroying evidence, someone in
danger?)
●​ Effect of excluding the evidence
●​ Crime Control Model (real world impact)
●​ Really serious crime,
excluding evidence means
the person goes free
●​ Less likely to exclude
valuable evidence in more
serious crimes
●​ Don't want to let serious
criminals go free
●​ Even though there would be
harsher punishments for
more serious crimes
●​ Letting obviously guilty people free
because of trivial mistakes will result in
more disrepute
○​ Even if evidence was being excluded, it was only happening about 60% of
the time in Collins case
●​ In general, only happens less than 50% of the time
TUESDAY LECTURE
S. 24(2) - exclusionary role from Collins (1987) to Grant (2009)
●​ Stillman (1997): how to deal with DNA?
Stillman (1997)
●​ Replace 'self-incriminating/real' distinction with 'conscripted/non-conscripted'
○​ Conscripted: taken without your permission
○​ Non-conscripted: permission not needed/permission given
●​ Confessions:
○​ Given under force, not allowed to talk to counsel
○​ What about fingerprinting?
●​ From Collins, considered to be 'real' evidence - taken as soon
as arrested, didn't need court approval
●​ Alone, not significant - with comparison, very helpful
○​ What about DNA evidence
●​ Followed the same process as fingerprints - considered to be
'real' evidence
●​ Courts would take hair, blood, skin, bodily fluid, etc. because it
was considered to be the same thing as getting fingerprinted
●​ Took dental impressions, mouth swab (skin cells), blood, upon arrest and because of
this Stillman gets convicted
○​ Court said that this is real evidence but also self-incriminating because
they're using you to convict you without your permission
●​ DNA 'emanates from the accused'
○​ Conflicts with Collins test
○​ Need new way of thinking of Collins test
○​ Conscripted evidence emanates from the accused
●​ Confession, DNA, anything that comes from you especially
where it has been taken without your consent
○​ Non-conscripted
●​ Closer to the 'real' evidence, pretty much everything else
○​ Most of the rest of the test left in tact
○​ If police want to take DNA evidence from you, they need to get a warrant
●​ Fingerprints are still treated as non-conscripted
○​ Way too valuable for police to not use it
●​ Treating DNA and confessions differently
○​ Police cannot go to the court and get a warrant to force someone to
confess
○​ But can get a warrant to force someone to give DNA
●​ Both self-incriminating
R v. Grant (2009)
●​ Major shift in approach to section 24
●​ Heavy swing in favour of police and prosecutors and reversal of Stillman and Collins
(partially)
●​ Police stopped a black man walking down the street in Toronto
○​ Police said he looked suspicious and questioned him
●​ Found to violate section 9 of charter
○​ Didn't read him his rights, or give him right to counsel
●​ Has to be done if arrested or detained
○​ Found weed and a firearm when he was searched
●​ Found to be an illegal search (section 9 and 10 violations)
●​ Less focus on self-incrimination
●​ 'Purpose of s. 24(2) is societal'
○​ But it's a remedy for an individual rights violation
○​ Its not about punishing the police or compensating the accused, but
rather 'systemic issues'
●​ Court comes up with new test
○​ Seriousness of the charter-infringing conduct (how serious is the violation)
(same idea as willful, technical, good faith, etc.)
○​ Impact on the charter-protected interests of the accused (fleeting
infringement or profound impact?)
●​ If found guilty, will you go to jail? Violation of right to liberty so
more of an impact for the accused
○​ Societies interests in adjudication on the merits (Crime Control Model)
●​ Truth seeking function of trials
●​ Want to know what the right answer is (similar to impact of
excluding evidence)
●​ If we exclude this evidence, will we still get to the
truth?
○​ Reverses Stillman 'conscripted vs. non-conscripted' and goes back to
Collins 'real vs. self-incriminating'
○​ What is the most important part of this test?
●​ Not said for this test
●​ Sort of seen by the outcome of Grant case
●​ Lots of emphasis on last part (good evidence, don't
exclude)
○​ Seem to emphasis crime control over due process
●​ Didn't find racial profiling even though it walked and talked like
a duck (it probably was a duck)
THURSDAY LECTURE - MARCH 27TH, 2025
S. 24(s) recap
●​ Exclusionary rule
●​ Shift from Collins test (self-incriminating evidence and fair trial - what is fair to
accused) to Stillman
●​ Grant (2009), how to exclude evidence
○​ More about society's concerns rather than punishing police for messing
up
○​ Want to get the right answer - want to find the truth
○​ Heavy emphasis on 'is this good, reliable, relevant evidence' especially in
serious crime
●​ Goal of trial is to get to the truth
S. 24(1): general remedy power
●​ Covers all other situations where there is no evidence to exclude
○​ Very openly worded (intentionally like this)
○​ Tells judges to craft remedies as you see fit
●​ 'Appropriate and just in the circumstances'
●​ When legislation violates the charter
○​ Invalidation
●​ Nullification, striking down (all mean the same thing as
invalidation)
●​ Most obvious remedy
●​ S. 52 - supremacy clause
●​ Charter/constitution is the supreme law of Canada
●​ "Laws that are inconsistent with the constitution are
of no force or effect"
●​ The law becomes invalid so it needs to stop being
enforced
●​ Adopted from Federalism - judges had been saying
to governments what they could or couldn’t do and
striking down laws that didn't align
●​ Happened in Big M Drug Mart (Lord's Day Act),
abortion laws (Morgentaler) - laws were struck
down
○​ Schachter (1992)
●​ Asks what judges can do under s. 24(1) when the problem is
legislation (law itself is the issue)
●​ Basically have 4 options
●​ Invalidation
●​ See above
●​ 'Reading down'
●​ Read legislation in a way that
narrows its meaning
●​ Interpret the law more
narrowly to remove the
conflict with the charter
●​ Butler (1992) - could you ban
pornography?
●​ Tried to use
obscenity law to
do this (large
category)
●​ Redefine
'obscenity' to say
that it's not just
sexually explicit
content - has to
be harmful,
degrading and/or
mixed with
violence (acts of
consensual sex
does not
constitute
obscenity)
●​ Extension/'reading in'
●​ Court adds new groups that
will gain the benefit or
protection of a law
●​ Instead of making it more
narrow, they make it so that it
applies and protects more
people
●​ Greene - adding sexual
orientation to Alberta's
human rights code instead of
striking down the whole thing
●​ Severance ('reading out')
●​ Like a partial invalidation deleting a word or two to fix
the issue
●​ Declaring only a word or
small phrase as
unconstitutional but leaving
the rest of the law in tact
●​ Age restriction of
employment insurance - you
can work past 65 but you
couldn't claim employment
insurance (basically
mandatory retirement)
●​ Age discrimination
- won the case
●​ Do you strike
down the whole
employment
insurance system
or just take out
the words 'under
65 years of age'
○​ Suspending a law
●​ Striking down a law but allowing it to continue for 6-12 months
- even though it is found to be unconstitutional
●​ Gives legislatures time to respond - creating a legal vacuum?
●​ If you are striking down something related to MAID,
you need to allow parliament to create a new
system to fix the issues instead of it being a 'free for
all'
●​ What do you do with the person that just won the case even
when the law is suspended
○​ 'Constitutional exemption'
●​ During the time that the remedy is suspended, the successful
claimant is exempt from the law they successfully challenged
●​ Reflects the effort put in and the fact that you won
(proved that the law was unconstitutional)
○​ Most controversial - severance or extension
●​ Would rather laws be struck down and sent back to parliament
(reading in is rare)
●​ Lawyers don't want the courts to rewrite/write new laws
○​ Think about when you use the different types of remedy
●​ Look at how the violation failed the Oakes test
●​ If your law has no pressing or substantial objective
or there is no rational connection between what you
did and how you did it, you should strike down the
law and tell parliament to fix it
●​ If the problem is minimal impairment or collective
benefit doesn’t outweigh the cost, any of the
options could work
●​ When common law violates the charter
○​ Judge made law/precedence
○​ Same-sex-marriage (definition of marriage wasn't actually written down
anywhere but the common law definition was between one man and one
woman)
●​ This definition is what is challenged even though it wasn't
written down
○​ Because it is judge made law, the judges can do whatever they want to do
●​ They can strike it down (rare), they can change it, any of the
options because it is made my judges
●​ Immediate change happens because judges just change how
they enforce the law
●​ Insanity defence, etc.
●​ Unconstitutional behaviour by government officials (School board officials,
immigration, customs officials, etc.)
●​ Civil remedies: they exist in the justice system even in non-constitutional law (civil,
family, etc.)
○​ Declarations of relief
●​ Non-specific judicial order
●​ Recognizes a right or a rights violation but doesn't
lay out anything specific to do about it
●​ Not telling government how to fix it, only that it
needs to be fixed
●​ Mahi case
●​ Alberta having French schools outside of Edmonton
●​ Telling them that Alberta government is violating
rights but courts didn't tell the government how to
fix this violation
○​ Injunctions
●​ Specific judicial order (budget, teachers, build school, telling
them to do a specific thing)
●​ Labour law - injunction to stop picketing, injunction to go back
to work after strike, etc.
○​ Doucet-Boudreau - Nova Scotia
●​ Court tried declaration of relief to make government to give
French education to Acadian children
●​ When government didn't do anything, the courts put
an injunction in to force them to build a school
●​
●​
●​
●​
●​
●​
○​ Damages
●​ Usually money
●​ You drove into my fence, I sue you for damages to pay to fix
my fence that you damaged
●​ Not usually used for charter rights
●​ Changes in 2010
●​ Wrongfully accused person was arrested and
strip-searcher (illegal and cops knew this) - sued for
unreasonable search and seizure
●​ Courts had told Vancouver police to stop doing this
before
●​ He won only $5,000 - very small amount
Ontario v. G (2020)
○​ Try to clarify the point and goal of remedies
○​ They're important when rights are violated
●​ In the public interest
○​ Signal a caution
●​ Remind judges that courts and legislatures play different roles
in justice system
●​ Court's main goal is to guard the rights and constitution for
Canadian people
Judges have a wide range of options depending on the situation
○​ Some roles (severance, reading in) give judges power to rewrite laws and
details of policy
Section 24 has blurred role of judges and legislature
"Courts have power over sword nor purse"
○​ Courts rely on other branches to enforce their decisions
Getting a judicial remedy is rarely the end of the story
○​ What happens after they win/get the remedy
It is a fragile system that needs government to respect the courts decisions
UNIT #11 Courts & Democracy
April 1st, 2025
'The counter-majoritarian difficulty' (Bickel)
●​ Degree of influence that unelected judges have over elected officials
●​ How do the courts work with democracy - what is their relationship?
●​ More judicial power now than before 1982 in Canada
●​ Judges kind of empower themselves sometimes
○​ Play a greater role in public policy
○​ Section 52 constitutional supremacy elevates constitution over
government branches
○​ Substative judicial review
●​ Interpretation role - giving judges interpretation over laws
○​ Particular tension in democracy
○​ You have unelected judges (not democratically accountable to citizens)
defining our constitution
●​ May be defined in ways that go against the intentions of the
original elected officials
●​ May interpret it in a way that the current majority doesn’t like
●​ Could be done in a way that reflects their own
attitudes/ideologies
Judicial activism
●​ Courts do check governments (make sure they're in line)
●​ Three criticisms
○​ Courts lack the institutional capacity to make good public policy
●​ Courts are experts in law, law school doesn't typically involve
training about public policy analysis (does now a bit)
●​ Resources - bureaucracy involves research - courts don't have
access to the necessary amount of research
●​ May recognize their limitations as policy makers
○​ 'Flight from politics'
●​ Social groups/citizens/the public will shift from lobbying the
elected branches (MP, cabinet) to going to court to get what
they want
●​ Go to judiciary instead of legislatures
●​ Citizen disengagement from democracy
●​ Court rulings promote the idea of clear winners and losers
●​ Weakening spirit of compromise in complex
democracies
●​ Clarity around the definition of rights
●​ Overtime, politics has become a dirty word
●​ No longer about negotiation and compromise
●​ Most people think that the court is above this
'dirtiness' of politics
●​ Courts don’t need to worry about reelection
○​ 'Policy distortion'
●​ When parliament/government doesn't do a more effective and
conceivably constitutional policy out of fear that the courts will
strike it down
●​ Chilling effect - came concept
●​ Government will forgo better policy in order to play it safe
●​ Taking limited legislative agenda and time you have to do
things and it gets struck down, you've basically wasted that
time
●​ Governments don't want to be painted as 'rights violators'
●​ Not cases where government is clearly/wants to clearly violate
constitutional rights
●​ There is a lot of room for reasonable disagreement among reasonable people about
what rights mean and what they allow
○​ Distortion is an issue if this is the case
Democratic critique (judicial activism is needed)
●​ You need someone to keep the majority in line
○​ Need to have a 'speedbump' on judicial overreach
●​ Tyranny of majority
○​ Elected branches are elected by majority so they have a desire to please
the majority even if it goes against rights
○​ Courts are one of the main 'checks' in this situation
●​ Funny to talk about democracy with parliament
○​ Winning party is usually rarely the majority
○​ Almost never have the support of 50% of the population (usually less than
40%)
○​ Even though the court doesn't represent the majority, neither does the
government most of the time
●​ What about flight from politics argument?
○​ If people are going to court, why?
○​ Why are people going to court instead of lobbying MPs
●​ Some people do both (almost all groups that go to court also
lobby)
●​ For those that choose court over lobbying, they say that it's
because parliament doesn't respond
●​ They don't meet with them or do anything about it
○​ Blaming courts from democratic disengagement but your democratically
elected officials aren't actually doing anything
●​ Fix the system and people will use it
○​ Constitution itself establishes constitutional supremacy - created by
elected officials
●​ Empowered judges to strike down laws that go against
constitution
●​ Framers intended to elevate judicial power to protect people's
rights
○​ Doesn’t really apply to interpretation issue - just applies to issues with
remedies
Courts checking parliament
●​ Dialogue theory
○​ Judicial activism is fine because elected branches can almost always
respond and achieve their objectives in other ways
○​ Courts knock off the sharpest edges - don't really stop government from
doing what they want but they soften the blow to the people
○​ In many cases, government does have the final say over court rulings
●​ Section 33 - notwithstanding clause
●​ You get a back and forth between parliament and courts
○​ Argues that parliament has always ignored rights
●​ Not really true
THURSDAY LECTURE
'Dialogue' theory vs. 'coordinate construction'
●​ Dialogue theory
○​ Governments can usually still do what they want to because courts allow
them to respond when they violate rights
○​ Back and forth conversation (almost)
○​ Governments can use notwithstanding clause in certain situations
○​ Belief that when push comes to shove, judiciary has the correct answer of
what rights mean (interpretation rule)
●​ Coordinate construction
○​ If we leave the job of ensure laws and government comply with
constitution entirely to the courts, we are going to miss a lie
●​ Most laws are never reviewed by courts (laws, regulations,
bi-laws, etc.) and they could never be
○​ In a constitutional government, all branches of the state (courts,
executive, etc.) have a responsibility to internalize constitutional rules
●​ They make sure that they are respecting the constitutional
rules themselves regardless of the court's interference
○​ Any time anyone tries to apply the constitution (even if good faith)
someone will probably have to interpret the meaning of the constitution
●​ This is fine, all branches need to do this
●​ There might be multiple, reasonable interpretations
○​ Sounds good in theory
●​ One big problem
●​ It cannot identify when the courts interpretation should win out
over the interpretation of other branches
●​ When elected branches say they are complying with rights but
it's clear that they're not
○​ We have a system of judicial hierarchy
●​ All other actors in the system (other than the SCC) needs to
know what the rules are and when/how to follow them
●​ Coordinate construction doesn't really allow for this
specification/distinction
Courts and judges, while deserving of respect, are not apolitical branches
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Especially when it comes to constitutional law cases
Doesn't mean that they're partisan
They are political (they have values, power, etc.)
A lot of times that courts look like other branches of legislature (3rd chamber Senate, HOC, and courts)
○​ Courts can't mechanically apply the charter - there needs to be
interpretation which involves judgment calls
○​ Look at Oakes tests - public policy exercise
●​ Legally asking the questions of 'is your policy important?',
'could you have done it better?', etc.
●​ All up to the interpretation of the court if these standards are
met
○​ Executive and legislative functions even though they're not those
branches
●​ Courts becoming more like legislatures
○​ Why do we have courts? - they're impartial, independent, legal experts,
different from parliament
○​ They're not public policy experts, not particularly impartial (some
biases/values/life experiences)
●​ When it comes to constitutional law, we need to rethink our ideas of courts
○​ Reexamine the form that judicial review takes and how we apply it
○​ Be weary of politicians that threaten to remove judges if they don't agree
with them, using s. 33 all the time, stack courts with partisans who don't
care about precedents
Courts as political actors and democratic/rule of law 'backsliding'
●​ Stops courts from protecting our rights
●​ When politicians undermine the integrity of the courts (see above)