Jurisdiction over Aboriginal Matters
Federal Power
Exclusive authority to extinguish abg. rights
Indian Act does not extinguish Indian title.
Provincial Power
Abg. right not extinguished by fee simple titles
- s.109 prov. hold land subject to special interest, which includes Indian interest
Prov. law can apply to Indians if
i) they do not single out Indians; or
ii) go to the core of Indianness (protected by interjurisdictional immunity)
- s.88 of Indian Act: Subject to any treaty or other Act of Parliament, all laws of general application in any
province apply to Indians, except when the law is inconsistent with this act.
The Test:
1. What is the nature of the right being claimed?
- cannot be excessively general (Pamajewon: keeping a gambling house characterized as right to manage use of land)
2. Does the right go to the core of Indianness?
- integral to culture
- hunting -> yes (Dick)
- high stake gambling -> no (Pamajewon: was some gambling but not at modern scale -> suggests frozen right)
If “yes” -> law does not apply to Indians ex proprio vigore (of its own face)
3. Does Indian Act allow the legislation to apply to Indians?
- if it is a law of general application -> yes, referentially incorporated -> becomes fed.
- focused on intent of leg, not effect
Dick v. The Queen, 1985
Indian charged with killing a deer out of season contrary to provincial Wildlife Act. Held: leg. doesn’t apply to Indians ex proprio vigore because
hunting goes to the core of Indianness. However, Wildlife Act is a law of general application (not intended to impair Indian status or capacity)
and therefore referentially incorporated by Indian Act to act as fed. leg. and apply to Indians. Effect of leg. not relevant.
R v. Pamajewon
Indian convicted of keeping a common gambling house contrary to s.201 of Criminal Code. Held: Although Indians did gamble, it was not at 21st
century scale, therefore gambling is not integral to culture.
1
History of Aboriginal Rights
Crown’s
Obligation
s.35(1)
PreDelgamuukw
Treaty
Principles
- recognize abg. legal tradition as a source of law (Guerin)
- take into account abg. perspective, and the special evidentiary difficulties that exist (Van der Peet)
- fiduciary obligation to act in Indian interest. (Guerin – negotiate lease to golf course in Indian interest)
“Existing aboriginal and treaty rights of the aboriginal people of Canada are hereby recognized and affirmed.”
- “existing” = not extinguished prior to 1982
- “recognized and affirmed” = Crown must exercise restraint when interfering with aboriginal rights. Must give sufficient reason
for encroachment.
- generous, liberal interpretation (Sparrow)
Ste. Catherine Milling and Lumber
- aboriginal title is a) usufactuary (only for limited purposes, like a license); b) personal (cannot be sold except to the Crown); c)
dependent on good will of the sovereign
Calder v. AG(BC)
- Title is justiciable (a legal right)
- rooted in pre-existing occupation
Guerin v. Queen
- title is sui generis
R v. Adams
- title is a distinct subset of abg right
- focused on consent: more consistent w/ constitutional values, protection of minorities, rule of law
- reserved rights: all land are reserved for abg as part of colonization until such time abg. surrender them to Crown
- beneficiaries of treaty: aboriginal ppl get promises from the Crown for education, land, fishing/hunting rights
- treaties are about the future: foundational agreements of nation building; creates certainty and division of power
- bridge legal systems: both common law and abg. law are recognized
Time Line
i) Abg to abg treaties (pre-European)
ii) Peace and friendship treaties (b/t abg. and Crown in Maritimes to end war, 1725-1800s)
iii) Numbered treaties (began in 1850, covered most of Canada)
iv) Modern Treaties (since 1975)
2
Framework for Aboriginal Rights
1. Proving
right exists
(onus on Abg.
group)
Aboriginal Title
A. Nature of Right
- sui generis (Guerin)
- source: Indian occupation
prior to European settlement
(Guerin)
- inalienable, except to Crown
- communal
- not restricted to traditional
activities
- inherent limit: cannot be
used in a manner
irreconcilable with nature of
attachment to land
(Delamuukw)
B. Proof of Title
i) occupation prior to
sovereignty
- based on abg. perspective
ii) continuity of occupation
- interruptions okay, just
need substantial
maintenance of connection
iii) exclusively
- could be shared
Resource Use
A. Exists
- right is extinguished if leg. show “clear and plain”
intention to extinguish
- mere regulation/ implied intention/ policy not
enough (Sparrow: regulation of fisheries does not
extinguish rt)
- can be extinguished through agreements (i.e.
treaties), NRTA, constitutional document
B. The right
- include common law rights
- interpreted in modern day form
i) identify the nature of the claim
ii) central and significant to the society’s distinct
culture today (“made the society what it was”)
- must be an independent practice that is by itself
significant (Van: exchange of fish only incidental to
fishing)
- must be distinctive (distinguishing characteristic),
but not necessarily distinct (unique)
iii) has continuity w/ practice pre-contact
- cannot be developed in response to European
contact (Van: trading w/ HBC not proof)
- can have interruptions
iv) Relate to the particular abg. group –assessed on a
case-by-case basis
2. Extinction by the Crown? (onus on Crown)
3. Right Infringed? (onus on Abg. Group)
A. Limitation unreasonable
B. Impose undue hardship
C. Prevent abg. group from exercising their right in their preferred means
3
Treaty Rights
A. Nature of Right
- justiciable (White and Bob)
- sui generis (Simon)
- signed by an independent ppl (Sioui)
B. Evidentiary Sources
- actual treaty may be the oral
agreement (Marshall: treaty not
translated to Indian language;
unconscionable for Crown to ignore oral
agreement)
- should examine extrinsic historical and
cultural context even when there is no
ambiguity
C. Test
- was the right contemplated at the time
of treaty signing (Marshall II; Bernard)
- choose common intent that best
reconciles both abg. and Crown interest
(Marshall I)
- can be an implied right (Sundown: right
for shelter is an incidental right to right
of hunting)
- general right enjoyed by all others can
still be subject to a treaty promise
(Marshall)
4.
Infringement
Justified?
(onus on
Crown)
A. Valid
legislative
objective
B. Honour of
the Crown
preserved
- agriculture/forestry/mining
- hydroelectric power
- economic development
- protection of environment or
endangered species
- building of infrastructure
- settlement of foreign population
- conserving/managing a natural resource
(Sparrows)
- prevent harm to public or aboriginal
people (Sparrows)
- economic/regional fairness (Gladstone:
need to limit commercial fishing by abg.)
- allocation of resources to non-aboriginal
(Gladstone – other groups w/ historical
reliance on fishery)
- minimum impairment (effort to
mitigate?)
- fair compensation/accommodation
- give priority to aboriginal
- abg. group consu
lted
- treaties are subject to justifiable
infringement (Badger)
i) exclusive
- process/substance allocation should
reflect prior interest
- abg. participation in development
- conferral of fee simple/ lease/ license
reflect abg. interest
- remove economic barriers for abg.
participation
ii) right to choose use of the land
iii) consultation
iv) economic component
(compensation)
Calder v. AG (B.C.), 1973
Tribal Council brought action against BC government for giving away tenure to land. They sought a declaration that aboriginal title to certain
lands in the province was never lawfully extinguished. Held: Aboriginal title existed at the time of Royal Proclamation of 1763. 3 judges: title
has since been extinguished by the proclamation and ordinances. 3 judges: proclamation not explicit enough to extinguish title.
Guerin v. The Queen, 1984
Government made deal on behalf of Musqueam Indian band to lease land to golf club (near UBC). Actual terms of the lease were much less
favourable than those agreed to by the band. Held: It is unconscionable for the Crown to ignore oral agreement with the band. Crown has to
make up for the loss suffered. Indian title flows from pre-settlement occupation. It is sui generis. It is a burden on land although crown holds
proprietary interest. Crown has fiduciary obligation to act in Indian interest and recognize Indian legal tradition as a source of law.
R v. Sparrow, 1990
Member of Musqueam Nation caught fishing contrary to Fisheries Act. Held: Taking salmon was an integral part of Musqueam culture. Sparrow
was exercising an "inherent" Aboriginal right, that existed before the provincial legislation and that was guaranteed and protected by section 35
of the Constitution Act, 1982.
4
R v. Van der Peet, 1996
Member of Stolo Nation charged for selling salmon contrary to Fisheries Act. Held: exchange of fish not an integral part of culture. It’s only
incidental to fishing. No regular trading system. Trade w/ Hudson’s Bay Company qualitatively different from trade prior to contact. Exploitation
of fish not specialized which suggests trade not central part of culture. L’Heureux-Dube (dissent): It is not imperative for practices to exist prior
to contact, or else Metis would have no right. McLachlin(dissent): Abg. right includes the right to be sustained from the land/waters. Integralincidental test too broad and too categorical. It should not be an all or nothing test. Should adopt the empirical historic approach to look at what
has been identified as abg. right in the past.
R v. Gladstone, 1996
Members of Heiltsuk Band charged for selling herring contrary to Fisheries Act. Held: commercial sale of herring spawn was a central, significant
and defining feature of the culture; and that right has not been extinguished. However, right to commercial fishing is not inherently limited.
Crown has valid leg. obj. to pursue regional and economic fairness and recognize other groups w/ historical reliance on fishery.
Delgamuukw v. BC, 1997
Gitxsan and Wet’suwet’en Nation claimed title to 133 individual territories in BC. Held: retrial. Described nature of aboriginal title and the three
requirements for proof of title.
R v. Marshall
Abg. man charged for selling eels without a license. Treaty signed in 1760 for peace and friendship through trade. Set up 6 truckhouses. Held:
Reasonable bystander test used to interpret intent. Cannot rely on written doc alone. Treaty implied right to hunt and fish for trade even
though it was not expressly mentioned. But right is limited to trade for necessaries (described as “moderate livelihood”) not for economic gain.
R v. Sioui, 1990
Indians were not conquered in the Quebec War even though they fought on the side of the French and lost to Britain. Treaties signed were
between an independent ppl with the Crown.
R v. Sundown, 1996
Indian band set up hunting cabins in provincial park. There was no explicit mention of right to erect shelter in the treaty. Held: Right for shelter is
an incidental right to right of hunting, therefore it should be protected.
5
Charter
1. Does the Charter apply? (s.32 analysis)
2. Purpose and effect of challenged law
3. Interpret the asserted right in the Charter
4. Does the challenged law limit one of the rights (onus on party challenging)
5. Is the limit reasonable; i.e. demonstrably justifiable in a free and democratic society (onus on government)
Interpretation
- purposive approach (Hunter v. Southam)
- tools:
 general objective of the Charter
 language chosen to articulate right
 historical origin of the right (generous rather than legalistic approach)
 should not read internal limits in definition of rights (s.1 limits rights)
- interpretative provisions of the Charter
 s.27 Charter shall be interpreted in manner consistent with the preservation and enhancement of multicultural heritage of Canadians
 s.28 Rights are guaranteed equally to both male and female
- parliamentary/committee debates (Re Motor Vehicle Act)
 drafters’ intent not determinative
 product of a multiplicity of individuals
 minimal weight should be given to the passing legislative body
 rights are not frozen
Application of the Charter s.32
- only applies to government action
- does not apply to orders from the court (Dolphin Delivery: court ordered injunction against secondary picketing not subject to Charter scrutiny
on violation of freedom of expression/association)
- does not apply to common law unless C/L is the basis for gov’t action
1. Controlled by government?
- university -> no, meant to have autonomy, academic freedom, self-governance. (McKinney: mandatory retirement at university)
- hospital -> no, (Stoffman) unless policy at issue was dictated by gov’t (Eldridge: Medicare service)
- colleges -> yes, board of governors fully staffed by ministerial appointments (Douglas College)
2. Exercising governmental functions
- municipalities -> yes. (Godbout: woman employed by municipality required to live in the city)
- person/organization exercising power under statute -> yes. (Slaight: adjudicator gave order under Canadian Labour Code)
6
Section 1
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed
by law as can be demonstrably justified in a free and democratic society.
1. Prescribed by
law
2. Justified
infringement
A. Pressing and
Substantial Obj.
B. Proportionality
(on balance of
probability)
- must be accessible, intelligible and
accountable to the public (notice given)
- can be the necessary implication or
application of a legislation/regulation or
common law rule (Therens)
- low standard for what is law -> to give
legislative policy choices
- not prescribed by law if law is too vague, based on:
 fair notice: if law is not based on a customary value, need to give
actual notice
 limitation of law enforcement: conviction cannot automatically flow
from the decision to prosecute
 international human rights
 scope of precision: provide framework, approximation
Contextual Approach
- Edmonton Journal: freedom of expression has greater value in a political context than it does in the context of disclosure
of details of a matrimonial dispute
- should show greater deference to legislative choice when gov’t sought to
a) balance competing rights/interests (Libman: freedom of expression v. political equality);
b) protect a socially vulnerable group (Irwin Toys: protection of children);
c) manage scarce resources; d) address conflicting social science evidence; e) regulate corporations (Irwin)
- shift in emphasis allowed (Butler)
- no shifting purpose (Big M: Lord’s Day Act no secular purpose)
- rarely laws would be struck down for this
- not when purpose of law contradicts rights or freedoms (Big M:
- better health care (Chaulli)
compelling religious practice not a pressing obj.)
Rational Connection
- chosen method advances purpose
- relate to law’s effectiveness and scope
Minimal impairment
- least drastic means
- evidence of equally-effective alternatives (Chaulli: other prov/countries have good pub. health care w/o same restriction
on private health care)
- most cases turn on this point
Proportional Effect
- importance of the law’s objective must match with its effect on limiting freedom
as to the cause of a social problem (Irwin Toy)
7
Section 15 Equality [Purpose: prevent violation of human dignity and freedom (autonomy, self-determination, self-worth, integrity)]
s.15(2) Ameliorating
purpose?
1. Differential
treatment
2. Based on
enumerated or
analogous grounds
3. Discriminating in
a substantive sense
- different degree of
scrutiny needed
based on ground of
discrimination
(Gosselin)
- equality doesn’t
mean identical
treatment (Kapp)
4. Relevancy
- interpretive aid for (1), not a defence or exception (Lovelace)
- confirming (1) that different treatment can be an expression of equality (Kapp)
Kapp Test: Has an object of amelioration in benefits, not restriction or punishment, to a disadvantaged group.
- focus on effect of leg, not intent (Eldridge)
- sometimes intent can be relevant if the challenged law is not intended to address the issue at hand (Auton: law not intended to
provide funding for non-core services, therefore not discriminatory; Lovelace: program intended to benefit abg. communities, not all
abg. individuals)
- formal equality  substantive equality; law can be discriminating by being under-inclusive (Vriend: failure to include sexual orientation
as discriminatory ground under AB HRC violates s.15)
Comparative Group
- court ultimately chooses who to compare to
- group must have same characteristics as the appellant except for the area under which the application is filed
- Auton: cannot compare non-core services to core med. services
- Hodge: should be compared to divorced married couples, not separated couples.
Enumerated grounds
Analogous grounds
A. Immutable characteristic
- race, colour
- citizenship (Andrews: cannot be lawyer in BC
- Corbiere: non-reserve Indians can only move back at
- national/ethnic origin
unless a citizen)
unacceptably high costs
- religion
- sexual orientaton (Vriend)
B. With stereotype disadvantage attached
- sex
- place of residence (Lovelace)
- Corbiere: non-reserve Indians seen as less deserving
- age
- marital status; common law v. married (Hodge)
- mental/physical disability
Yes.
No.
A. Pre-existing
disadvantage?
- same-sex couple (M v. H)
- off-reserve Indians (Lovelace)
B. Leg. fails to take into
account of the person’s
circumstances or
characteristics?
C. Ameliorating purpose or
effect
- same-sex relationship can also be permanent
and conjugal (M v. H)
- young ppl. (Law; Gosselin) -> age based
discrimination common and justified.
- young ppl. better able to find employment (Law)
- law designed to encourage training (Gosselin)
- program helps economic development of reserves
(Lovelace)
- benefit surviving spouse (Law)
- may not lessen the discriminatory effect of the leg.
- protect woman (M v. H)
(M v. H)
- two equally disadvantaged groups should not
- when a less advantaged group is denied benefits
be compared (Lovelace)
available (Lovelace)
D. Affects a fundamental
- reduces person’s ability to meet basic financial
- monetary interest (Law)
interest
need (M v. H)
- does not deny recognition of non-status Indians
(Lovelace)
- distinction must be relevant to the functional value of the challenged law (Egan, Miron: same-sex marriage a relevant distinction for
marital support, therefore not discriminatory)
8
Andrews v. Law Society of BC, 1989
BC Bar Association prohibits non-citizen from practicing law in BC. App. claim
s.15 equality rights violated. Held: s.15 right violated and is not justified under
s.1. Set up the Andrews Test: discrimination based on distinction on
enumerated or analogous grounds.
M v. H, 1999
Same-sex couple ended relationship after 10 years. H was in stronger financial
position. M unable to obtain spousal support because Family Law Act only
protects heterosexual couples. Held: Law is aimed at providing support for
economically disadvantaged partner in a long-term relationship (alleviate
burden of the state). Discrimination not justified.
Law v. Canada 1999
Canada Pension plan pays full pension to surviving spouse over 45, w/
dependents, or disabled. App. is under 35, and would not receive full pension
until 65. Claimed that s.15 equality rights violated. Held: No violation of s.15.
Gosselin v. Quebec, 2002
People under 30 cannot receive full benefit of welfare unless they participate
in job training program. There was not enough space in the training program.
Held: s.15 not violated because age-based distinction justified. Higher level
of proof needed to get reimbursement for tens of thousands of ppl. Purpose
of leg. is to create incentive for ppl to get job training. s.7 L,L,SofP not
violated because the state does not have positive obligation to ensure
livelihood (an economic right). Arbour J (dis): s.7 includes positive right.
[Textual: LLSofP “and” right not to be deprived… Purposive: nothing in s.7 says
no positive right. Contextual: positive right granted under other sections of
charter (e.g. right to vote) + s.1 justification analysis implies positive right.]
State has obligation to provide min. lvl of welfare. Although state didn’t cause
the physical/psychological stresses that come with poverty, it is still
accountable for those because of its obligation to alleviate the condition.
Eldridge v. BC, 1997
No sign interpreter in hospital. Held: Charter applies because hospital was
exercising a governmental function. s.15 violated and is not saved by s.1
because it’s not minimally impairing.
Vriend v. Alberta, 1998
Teacher fired from Bible college because he was gay. Sexual orientation was
not a prohibited ground of discrimination in the Alberta Human Rights Code.
Held: It is discriminatory to omit sexual orientation. Law is neutral on its face
but discriminating in effect. Other disadvantaged groups are protected.
Homosexuals are more disadvantaged than heterosexuals.
Lovelace v. Ontario, 2000
Ontario Metis and non-status Indians claim that they are entitled to profits of
First Nation Fund from Casino Royal. Held: A distinction is made on
enumerated grounds but it’s not discriminatory. 1. non-status Indians have
pre-existing disadvantage due to a) vulnerability to cultural assimilation; b)
compromised ability to protect their relationship with traditional homeland;
c) lack of access to culturally-specific health, educational, and social service
programs; and d) chronic pattern of being ignored by gov’t.
Auton v. BC, 2004
No funding provided for autistic children between the ages of 3 to 6. Held:
Support for autistic kids is a non-core service (like chiropractor or dentist).
There is no differential treatment when compared to other non-core services.
Leg. is not intended to address funding for non-core services.
Hodge v. Canada, 2004
Couple in common law relationship for 20 years, both contributing to Canada
Pension Plan. Relationship ended due to abuse. 4 months after separation,
man dies. Woman applies for benefits under CPP. Married spouses living apart
are entitled to benefits, but not C/L spouses living apart. Held: No violation of
s.15 because the right comparative group is divorced married couples, who
also don’t receive benefits.
R v. Kapp, 2008
Commercial fishermen violated a communal fishing license granting abg.
exclusive right to fish for salmon in Fraser River. Held: There is a distinction on
racial grounds, but it’s not discriminatory. Equality does not mean identical
treatment. Set out the 3 requirements for s.15(2).
9
Section 7 L, L, S, P of FJ
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. -> must be broader than, and consistent with rights protected under s.8-14 (Motor)
“Everyone” includes non-citizen. (Suresh: refugee claim allowed)
Life, Liberty
Security of
the Person
Principles of
Fundamental
Justice
- right to make personal decision without state
interference (Morgentaler)
- right to choose their child’s medical treatment
(Children’s Aid Society)
- extends beyond criminal law (NB legal aid)
Physical:
- removal of decision making power; personal
autonomy (Morgentaler; Rodriguez)
- right to be free of pain (Rodriguez)
Psychological:
- state-imposed, serious psychological stress; not
ordinary stresses of life (NB, Blencoe: stress from trial)
- procedural delay (Morgentaler: has to wait for
committee to make decision)
- woman forced to carry the fetus (Morgentaler)
- there are inherent limits in the scope of liberty (Iacobucci & Major in
Children’s Aid)
- right to life v. right to liberty -> usually life wins (Rodriguez: assisted
suicide, Children’s Aid: child’s right to life over parents’ liberty)legislations are supposed to interfere with individual priorities
(McIntyre dissent in Morgentaler)
- only includes physical right, ones that justice sys. can limit or take
away (Lamer in Children’s Aid) v. physical + psychological right
(Morgentaler, NB)
- children only have rights in exceptional cases, parents can make
decisions against child’s wishes most of the time (La Forest in
Children’s Aid)
- has to interfere with parent’s role as a parent, arrest child for
murder is not interference (NB)
- no positive right (Gosselin: no economic right to min. lvl of welfare)
v. state has positive obligation (Arbour dis)
- not a natural right (i.e. more than just procedural fairness)
- found in the basic tenets of our legal systems
Factors to consider:
- vague, arbitrary test (Morgentaler: married woman and rich ppl [can travel elsewhere] can obtain abortion; Arbour dissent in
spanking case: reasonable force too vague)
- procedural flaw (Morgentaler: may not have a hospital with at least 4 doctors)
- Canadian conscience/consensus of society
- other Charter/Criminal Law provisions (Suresh: Charter s.12 no cruel and unusual punishment; CC prohibits torture)
- international perspective evidence of PofFJ, but not binding (Suresh: Convention Against Torture rejects deportation to torture
even when national security is at risk)
- given notice, right to make full answer and defence (Suresh, La Forest in Children’s Aid), including right to representation by
lawyer (NB: legal aid for custody hearing)
10
Reference re s.94(2) of Motor Vehicle Act (BC), 1985
People can be jailed for driving without a license whether they know their
license has been suspended -> absolute liability. Held: P of FJ requires a mens
rea component for all offences with penal penalty.
A (R) v. Children’s Aid Society of Metropolitan Toronto, 1995
Jehovah’s witness parents refused to let child have blood transfusion.
Children’s Aid Society was granted wardship over child. Lamer J: s.7 not
infringed b/c it only protects physical rights. La Forest J: liberty includes the
psychological liberty of the parents in nurture, care of child. Children only
have liberty under s.7 in exceptional cases. Parents can make decisions
contrary to children’s wishes as long as they are in accordance with broad
policy reasons. But infringement is in accordance with PofFJ. There was a
notice, a hearing, and parents given the opportunity to make their case.
Iacobucci and Major J: child’s right to life cannot be subsumed by parents’
right to make decisions, especially when the parent’s right would endanger
the life of the child. There are inherent limits to the scope of liberty.
R v. Morgentaler, 1988
Abortion only allowed in a hospital with therapeutical division, a committee,
and qualified doctor not on committee. Dickson J: Security is violated because
of removal of decision making power (physical), and not knowing whether
abortion would be granted (emotional). Not in accordance with P of FJ
because of procedural flaws. Beetz J: Can be justified if procedural delay can
be reduced and decision made by independent medical advise. Wilson J: It is
more than just procedural flaw, affects woman’s substantive right to choose.
McIntyre J (dis): There is no right to abortion. Interference with individual
priorities is what legislations do.
Rodriguez v. BC (AG), 1993
Woman suffering from Lou Gherig’s disease applied for assisted suicide, which
is prohibited under s.241(b) of Criminal Code. Held: Security of person is
violated but justified under P of FJ.
Suresh v. Canada (Ministry of Citizenship and Immigration), 2002
Suresh accepted as refugee in 1991 but faces deportation to Sri Lanka for
alleged involvement with terrorist group fundraising. Argued that deportation
would subject him to torture in Sri Lanka. Held: Can only deport to torture in
exceptional circumstances: war, epidemics and natural disasters. If there is a
prima facie case that there may be risk of torture upon deportation, it is
required:
a) refugee given information on the case to be met (full disclosure); b) given
the opportunity to respond and to challenge; c) minister must provide written
reasons for the decision; and d) entitled to present evidence and make
submissions that i) presence in Canada not detrimental; ii) assurance of nontorture cannot be believed; iii) high risk of torture if returned.
(Minister of Health and Community Services) v. G(J), 1999
Legal aid does not cover custody hearing. Held: State removal of children
deprive a person of his/her security interests. This removal without a lawyer’s
representation is contrary to PofFJ.
Blencoe v. BC (Human Rights Commission), 2000
Minister removed from Cabinet for accusation of sexual harassment. Human
rights commission investigated the allegation for 3 years. Blencoe suffered
from severe depression. Held: The depression was caused by pre-existing
prejudice, not the state. No violation of s.7.
Canadian Foundation for Children, Youth and the Law v. Canada (AG) –
spanking case
s.43 of Criminal Code allows parents and teachers to use reasonable force
against children for correction purposes. Held: no violation of charter rights of
children because there are adequate procedural safeguards and not overly
vague (has to be for educational/corrective purposes, and reasonable under
the circumstances). Arbour (dis): s.43 unconstitutionally vague – what is
reasonable varies and does not provide fair warning.
Chaulli v. Quebec, 2005
Prohibition of private health insurance for health care services available in
public system. Caused long waiting time and undue suffering. Held: There is a
violation and it is not justified. No mechanism to go out of the province to get
treatment + patients sometimes die while waiting -> infringement of rights.
s.1 – better health care is a pressing obj. but can achieve it w/o restriction on
private health care (evidence of other prov. and OECD countries).
11
12
Section 2 Freedom of Expression
(a) freedom of conscience and religion.
(b) freedom of thought, belief, opinion and expression
- contextual approach; can create greater equality by restricting some speeches (Owen Fiss)
Reasons for
freedom of
expression
1. Promote free flow of ideas essential for political democracy and democratic institution
2. Necessary precondition for truth
3. Inherently valuable for self-actualization
Scope
- any thing that is expressive, meant to convey meaning (Irwin)
- language rights (Ford: cannot have freedom of exp. if ppl not allowed to use their own language)
- both right of speaker and right of receiver (Richard Moon: expression as a social right)
- whether effect is to restrict expression -> have to show the expression promotes the 3 underlying values
Can
- a particular meaning
- the physical consequence of those expressions; time,
- access to meaning
place, method (e.g. can prohibit pamphlets if don’t
Restrict
- ability of one to convey meaning
want ppl to litter) (Irwin)
- can’t restrict things on basis of their content
- to reduce violence
Should not be allowed
Should be allowed
Cannot restrict
Hate Speech
(Keegstra)
Pressing
objective
Rational
Connection
Minimal
Impairment
- it’s like violence, harms ppl psychologically
- leads to mistreatment, aggression (Mahoney)
- International Convention: Canada pledged to
combat racial discrimination in all possible way
- criminal law is about underlying our essential
values
- government disapproval does not necessarily lead
to dignifying those acts
- law is part of the package to combat hate speech; it
by itself need not be fool-proof
- can limit its application to only the most
intentionally, extreme form of violation
- getting rid of racism is of enormous importance;
hate speech is central to that
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- criminalizing hate speech simply provides them with a larger
public forum (media attention etc.)
- public may view this restriction with suspicion
- may have a chilling effect on defensible expressions
- hate speech laws don’t work – had them in Nazi Germany
- meaning of “hate” unduly vague (Past enforcement of this
provision have been over-zealous)
- counter speech is the correct response (US)
- law is an imprecise, blunt instrument; would capture speech that
is not hateful (Borovoy)
Pornography
(Butler)
Pressing and
Substantial
Rational
connection
Minimal
Impairment
Political
Speech
(Libman,
Harper)
Pressing and
Substantial
Objective
Rational
Connection
Minimal
Impairment
Definition of Obscene:
1. Undue exploitation of sex: if it negatively impacts equality or human dignity
2. Test of internal necessities (depend on whether community would tolerate):
a) explicit sex with violence -> always obscene
b) explicit sex degrading and dehumanizing ->obscene, unless artistic value shown
c) explicit sex not degrading and dehumanizing -> not obscene
- negative impact on individual’s sense of self-worth and
- can be artistic -> advancing a theme or plot
acceptance, especially women and children
- reasonable to assume that harm occurs
- incomplete social study
- artist expression, or sex not degrading and dehumanizing are
- can rely on education
excluded from prohibition
- does not affect private viewing
- freedom of exp. not meant to protect violence, dehumanizing
acts (not core values of Charter)
- right to persuade through peaceful interchange is protected under s.2b freedom of expression
- it includes the right to effectively participate in political discourse
- concerns both the speaker and the receiver
- guarantee equality -> prevent the rich from dominating
political debate
- inform citizens -> ensure some positions are not drowned out
by others
- preserve confidence of the electorate in the democratic
process
- expenses incurred has significant impact on outcome of the
vote
- must apply to all election expenses to be effective
- gov’t balancing competing rights -> should show deference to
leg. choice
Proportionality
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- political speech is the single most important and
protected type of expression.
- dangers hypothetical -. no evidence that rich ppl
would dominate
- political expression is at the heart of s.2b rights
- infringement is severe -> communication beyond
local level is impossible
- constrains all Canadians
Ford v. Quebec
French only signs required in Quebec. Held: s.2b violated. Language is so intimately connected to the form and content of expression that there
can be no freedom of expression if people are not allowed to use their own language. After this case, Quebec used s.33 notwithstanding clause
to justify this violation.
Irwin Toy v. Quebec
Consumer Protection Act prevents toy advertising to children under 13, but can broadcast messages in children magazines, announcement of
children’s shows. Held: s.2b violated but that infringement is justified. Distinction b/t restricting method of expression and content. s.1 analysis:
protecting children is a pressing and substantial objective. And there is minimal impairment because there is a regulatory process to decide
which messages are aimed at children. Can be more deferential to gov’t if they are making a regulatory decision. Dissent: It’s part of childhood
to be exposed to many messages and learning how to distinguish fact from fiction. There are parents to protect the children.
RJR MacDonald Inc. v. Canada
Prohibition of tobacco advertising. Have to put health warning on labels. Held: s.2b violated and not saved by s.1. Government had possible
alternative measures that they refuse to release those information. La Forest (dis): prohibition of advertising violates freedom of expression but
it’s justified; health warning does not violate freedom of exp. Rational connection: difficult to believe that tobacco companies would spend that
much money in advertising if they don’t believe that advertising would increase smoking.
R v. Keegstra, 1990
High school teacher teaching anti-Semitic statements and requiring students to reproduce those views on exams. Charged under s.319(2) of
Criminal Code. Held: Freedom of expression violated, but justified under s.1
R v. Butler
Butler owned sex shop, and was charged with selling, possessing, and distributing obscene material under s.163 of Criminal Code. Held: s.2b
rights infringed but may be justified under s.1 if definition of obscene is reformatted.
Libman v. Quebec, 1997
Provisions of Referendum Act limits campaign expenses. Held: violates s.2b and not justified under s.1 b/c not min. impairing.
Harper v. Canada, 2004
Canada Elections Act limit election spending to $3000 per person. Held: It is a serious infringement of freedom of expression.
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Freedom of Religion
Purpose
Definition of religion
- protection against religious conflict -> equality of access to public space
- belief/practice without coercion
- separation of church and state
- personal/subjective -> your version, no expert testimony (Amselem)
- based on sincerity of belief
- allow voluntary practices in addition to obligatory ones
Big M Drugmart
Fed. Lord’s Day Act prohibits selling goods on Sunday. Held: Freedom of religion violated because purpose of the Act is religious (need not
consider the effect). Gov’t can’t re-characterize the purpose of leg. (no shifting purpose) because a) it could encourage re-litigation of the same
issue; and b) no leg. would be safe.
Edwards Books
Prov. leg. prohibits store-opening on Sunday (some exemptions: smaller stores, pharmacies, gas stations, etc.). Held: Violates s.2a because of
indirect coercion -> compelled to practice the Christian religious practice of having a day on rest on Sunday. Justified under s.1 because of
pressing and substantial objective: family time, protect workers. Dissent: Don’t want to force ppl to expose their religion in order to ask
for a rest on days other than Sunday. Wilson: to be min. impairing, need more consistent principle and apply to all businesses.
Amselem
Condo by-law prohibits building structure on balconies. Jewish tenants wanted to build succah on balconies during the 9-day holiday. Held:
freedom of religion is infringed, and not justified
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Remedy
Section 24 of Charter
(1) Anyone whose rights or freedoms…have been infringed or denied may…obtain such remedy as the court considers appropriate and just in
the circumstances.
(2) …evidence obtained in a manner that infringes or denies any rights or freedoms…shall be excluded
Section 52 of the Constitution
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.
Extent of infringement
Other considerations
Read down or Read in
- failed proportionality test
- if group excluded is larger than
group included -> need to be
careful with reading in
- aware of budgetary concerns
Strike down
Temporarily suspended strike
- purpose is not pressing or substantial
- if striking down poses potential
danger to the public or offends
rule of law (e.g. creates a vacuum)
Schachter
Fathers denied paternity leave under Unemployment Insurance Act. Adoptive parents both get 15 weeks off but only birth mother get time off.
Held: Court should not read in the fathers because it’s a large group of potential beneficiaries. Temporarily suspend the declaration of invalidity > Leg. given time to modify the provision.
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