CHAPTER 1: SOURCES
1.1 Definition of constitutional law Constitutional law (CL): law prescribing exercise of power by the organs of a State. Federal state: allocate gov’t powers (leg/exec/jud) among state or province. Rules of federalism are significant as they protect the cultural, linguistic and regional diversity of the nation Rules that limit the exercise of governmental power over individuals create civil liberties part of CL. Constitutionalism and RoL convey idea that gov’t is limited by law - gov’t officials MUST act in accordance with the law. Remedies MUST be available – and MUST have ind. Judiciary to uphold.
1.2 Constitution Act (CA) 1867 NO single document. NOT defined Closest thing is the BNA Act, which was later renamed the CA 1982. BNA creates federalism framework for NA colonies and new Dominion of Canada.
1.3 Constitution Act (CA) 1982 Domestic amending formula adopted UK’s imperial authority over Canadian Parl’t terminated Canada Act 1982 consists of 4 short sections. CA 1982 is longer-60 sections- and amends the BNA. However these worsen formal state of Canada’s CL as add 2 more sources! However the CA 1982 effects modernization and rationalization of Canada’s CL: o (1) BNA is changed to CA 1867 o (2) Provision of a definition of the phrase Constitution of Canada. 1.4 Constitution of Canada (CC) Ss. 52 CA’82: The Constitution of Canada includes: (a) Canada Act 1982 (includes the CA 1982 in Schedule B); (b) 30 Acts and Orders in Schedule to the CA 1982 (including CA 1867); and (c) any amendments made to any of instruments in the first two categories. Charter of Rights part of the Constitution Part 1 of the CA 82 (Sch. B CA 82)
Health Services Bargaining (2007) Charter guarantees freedom of association SC held guarantee protected right to collective bargaining. Collective agreement negotiated b/w union and employer is therefore superior to a statute. It has the same status as if it were part of the Charter of Rights itself, i.e. Const! Def of CC in Ss. 52(2) - ‘includes’- indicates that the def’n is NOT exhaustive.
New Brunswick Broadcasting Co v. Nova Scotia (1993) SC held that the definition in Ss. 52(2) is NOT exhaustive. Court said the unwritten doctrine of parliamentary privilege should be included in the definition Court’s decision means that the def’n is capable of judicial expansion by virtue of implications from other parts of the Constitution (written AND unwritten). Def’n of CC - Ss. 52(2) NEEDED for supremacy and entrenchment clause of CA 82. Supremacy clause Ss. 52(1): CC supreme law of Canada. ANY inconsistent law w/ provisions of the CC is, to the extent of the inconsistency, of no force or effect. o This gives priority to the CC where inconsistent with other laws. Entrenchment clause Ss. 52(3): Amendments to CC shall be made ONLY in accordance with the authority contained in the Constitution of Canada. o Cannot be amended by ordinary legislative action. ONLY by special amending procedures laid down by Part V CA 82. The def’n of CC is therefore vital to the application of the 2 clauses.
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1.5 Imperial Statutes Both CAs are imperial statutes i.e. statutes enacted for Canada by the UK
1.6 Canadian Statutes Def’n of CC includes 8 Cdn statutes supreme over federal statutes b/c of Ss. 52(2) Statutes NOT in def’n of CC can be repealed/amended by ordinary leg process. 1.7 Parliamentary Privilege (PP) (LA=legislative assembly)
New Brunswick Broadcasting Federal Houses of Parl’t and provincial LA possess powers and privileges that are ‘necessary to their capacity to function as legislative bodies’. These powers and rights are known collectively as PP. SC asked itself whether the power to exclude strangers from the legislative chamber was necessary for the proper functioning of Nova Scotia’s LA. Held yes ONLY after it had satisfied itself. The majority in this case attributed 2 peculiar characteristics to PP that distinguish it from royal prerogative and from other branches of law: (1) PP is part of Constitution of Canada. (2) Powers authorized by PP are NOT subject to Charter of Rights. Having determined that the LA had PP power to exclude strangers, the SC did NOT consider whether the LA’s denial of access to the television media was a breach of the freedom of press guaranteed by Ss. 2(b) of the Charter. This immunity from the Charter distinguished PP from the royal prerogative and other common law powers of gov’t; and other powers conferred by CC on the federal Parl’t and the provincial Leg’s; all other powers of these legislative bodies MUST be exercised in conformity with the Charter of Rights. NO difference in const. status b/w legislated and inherent privilege BOTH exempt
PP includes freedom of speech in a debate, including immunity from legal proceedings for things said in debate (JanssenOrtho). Also includes rights of members of parliament or legislative assemblies NOT to testify in court while Parl’t/Leg is in session. Canada v Vaid (2005) Argued that the privileges of Parl’t of Canada included management of ALL employees of the Senate and the House of Commons (the legislative branch). FACTS: Chauffer of the Speaker of the House dismissed SC held failed the test of necessity dismissal NOT an unreviewable matter of PP PP can be regarded as a branch of common law NOT contained in any statute or written instrument, and it is in the courts who determine its existence and extent.
1.8 Case Law Courts interpret the CAs and the other constitutional statutes. Decisions constitute precedents judge made law develops Precedents constitute an important elaboration/modification of the original text.
***Reference Re Secession of Quebec (1998) SC invoked unwritten principles of democracy, federalism, constitutionalism and the protection of minorities to hold that, IF a province were to decide in a referendum that it wanted to secede from Canada, the federal gov’t and other provinces would come under a legal duty to enter into negotiations to accomplish the secession. This case illustrates the active and creative role that the SC has carved out for itself. Case law independent of any statute or constitution could be characterized as constitutional law. E.g. Crown retains a few vestigial PP from the common law. Courts have also made much of the law concerning civil liberties by establishing rules to limit the powers of gov’t officials and admin agencies and procedures to enable private individuals to seek JR of admin action.
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1.9 Prerogative Royal prerogative (RP) powers and privileges accorded by the CL to the Crown.
Case of Proclamations (1611) Held: Apart from power over colonies, NO RP to legislate; ONLY Parl’t enact laws Over time the prerogative powers have shrunk: The Bill of Rights 1688 affirmed ONLY Parl’t could levy taxes and authorize expenditure of public funds. The prerogative was further limited by the doctrine that MOST executive action which infringed the liberty of the subject required the authority of a statute (Entick v Carrington). The conduct of foreign affairs, including the making of treaties and the declaring of war, continues to be a prerogative power in Canada as does the app’t of PM, issue of passports, and the conferring of honors such as Queen’s Counsel. MOST gov’t power is exercised under statutory, NOT RP. The court will determine whether a RP asserted by the Crown still exists, and if it does, what its limits and whether any restrictions on the power have been complied with. Court also determines whether a RP has been displaced by statute. BFEORE responsible gov’t, monarch exercised RP SOLELY based on discretion. Responsible governments’ rules are NOT legal rules enforceable in courts. They are conventions. The exercise of the Crown’s RP is thus regulated by conventions, NOT laws. 1.10 Conventions (a) Def’n of conventions Conventions are rules of the CC NOT enforced by the law Best regarded as non-legal rules & regulate the working of the CC. Govern how legal powers exercised. Some have the effect of transferring effective power from the legal holder to another official or institution – i.e.: o Governor General will exercise powers ONLY in accordance with cabinet/PM o The Queen/GG are essential party to the federal leg’n BUT convention stipulates that the royal assent shall NEVER be withheld. Conventions are almost always obeyed by officials whose conduct they regulate. IF a convention is disobeyed, THEN official’s act/omission is ‘unconstitutional’ BUT NO breach of law OR remedy (b) Convention in the courts Existence of conventions occasionally recognized by courts Patriation Reference (1981) Was there convention req. provinces’ consent be obtained BEFORE federal gov’t requested the UK Parl’t to CC’s amendment affecting powers of the provinces? Held: WAS convention and REQUIRED federal gov’t to obtain a ‘substantial degree/measure’ of provincial consent BEFORE req. the legislation from UK. Hogg feels the Court should NOT have answered the convention question Case ALSO had a legal question As it is NOT an elected body NOR politically accountable should NOT have gone beyond the legal q’s to exert any further influence over the negotiations (c) Convention and usage Convention is a rule regarded as obligatory by officials to whom it applies; Usage is NOT a rule BUT merely a gov’t practice which is ordinarily followed & NOT regarded as obligatory (e.g. appointment of Chief Justice). However IF practice followed over time MAY develop into a convention - COMMON (d) Convention and agreement IF ALL relevant officials agree to adopt rule of constitutional conduct THEN MAY be regarded as obligatory.
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(e) Convention and law Convention can become law IF enacted as statute AND enforced by courts. Conventions NOT legally enforceable BUT obeyed b/c a breach results in serious political repercussions and eventually in changes in the law. o They regulate the way in which legal powers shall be exercised, and they therefore presuppose the existence of the legal powers. Imp case for conventions: Patriation Reference-p23-31 PH
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2. AMENDING PROCEDURES
4.1 History of Amendment (a) Imperial amendment <1982, amendments enacted by UKP NO general provision for own amendment. In 1931, when the Statute of Westminster conferred upon Canada the power to repeal or amend imperial statutes applying to Canada, BNAA and its amendments were excluded from the new power at Canada’s insistence. This was done so that the BNAA could NOT be amended by an ordinary statute of either the federal Parl’t OR a provincial Legislature. BNAA however ONLY amended by UKP. At imperial conference in 1930 it was decided that the PM of the UK would NOT enact any statute applying to any dominion EXCEPT at the request and with the consent of that dominion o THIS created a constitutional convention that the UKP would NOT enact an amendment to BNAA EXCEPT at request AND w/ consent of Canada. PROCEDURE: Amendments were requested by a joint address of the Canadian HoC and the Senate (a resolution with the text of the bill included). After the resolution was passed by the 2 HoP it was sent to the UK gov’t for introduction in the UKP and enactment. What was the role of provinces in the amending process? Unclear till Patriation Reference where the SC held that the consent of the provinces to the proposed amendments was NOT required as a matter of law BUT that a substantial degree of provincial consent was required as a matter of convention. The CA1982 Part V introduces a set of amending procedures within Canada without recourse to the UKP thus its authority has been formally terminated. The roles of the federal and provincial gov’ts in the amendment process are now defined in precise statutory language. Rules laid down in Patriation Reference have NO current relevance
(b) The search for a domestic amending procedure CA82 introduced DOMESTIC amending procedure which started in 1927. Quebec was being difficult and not agreeing to any domestic amending procedure. When PM Trudeau tabled the constitutional proposals which evolved into the CA82, the amending formula which he proposed was opposed and the Vancouver formula was proposed and accepted by all except for Quebec-this formula required for most amendments the agreement of the federal parliament and 2/3 of the provincial Legislatures representing 50% of all the population of all the provinces. The formula did NOT give any province a veto-however this time the absence of Quebec did not stop the process. The PM was determined to go ahead and the SC had ruled in Patriation that the consent of ANY province was NOT required by law or convention. The CA82 was enacted in the UKP on March 29, 1982. When the CA82 came into force on April 217,1982, Canada had acquired domestic amending procedures.
4.2 Part V of the CA 1982 Provides 5 different amending procedures: (1) A general amending procedure (Ss. 38) for amendments NOT otherwise provided for (as well as for those listed in Ss. 42), requiring the assent of the federal Parliament and 2/3 of the provinces representing 50% of the population; (2) A unanimity procedure (Ss. 41), for 5 defined kinds of amendments, requiring the assents of the federal Parl’t and ALL of the provinces; (3) A some-but-not-all-provinces procedure (Ss. 43), for amendment of provisions not applying to all provinces requiring the assents of the federal Parliament and only those provinces affected; (4) The federal Parliament alone (Ss. 44) has power to amend provisions relating to the federal executives and HoP; and (5) Each provincial Legislature alone (Ss. 45) has power to amend ‘the constitution of the province’. 4.3 General amending procedure (Ss. 38) This applies when NONE of the 4 specific procedures (in Ss. 31, 43-45) applies
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38.
(1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by: (a) resolutions of the Senate and House of Commons; AND (b) resolutions of the legislative assemblies of at least 2/3 of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.
(a) Ss. 38(1) 2/3 requirement means at least 7/10 provinces MUST agree to amendment The 50% requirement means that the agreeing provinces MUST include at least one of Ontario or Quebec since the combined population of the two is more than 50% of the total population of Canada. No single province has a constitutionally entrenched veto over amendments. Called the 7-50formula, b/c requires 7 provinces and 50% of the population. (b) Proclamation Once authority for amendment provided by the requisite no. of resolution of attends, Ss. 38(1) provides that the formal act of amendment is accomplished by a ‘proclamation issued by the GG under the Great Seal of Canada’. Ss. 39 imposes time limits on the issue of this proclamation, which is NOT to be issued until a full year has elapsed from the adoption of the resolution initiating the amendment procedure, UNLESS before then all provinces have adopted resolutions of assent or dissent (Ss. 39.1) purpose of this rule is to give each LA time to consider each proposal. Under Ss. 39(2) the proclamation is NOT to be issued after 3 years have elapsed from the adoption of the resolution initiating the amendment procedurepurpose of this rule is to prevent a proposed amendment from limping along for many years, gradually picking up assents, and eventually coming into force without ever having had widespread support. (c) Initiation Procedure initiated by Senate OR HoC OR by LA of province (Ss. 46(1)) and can ONLY start in legislative chambers that have power to authorize amendment.
(d) Opting Out Opting out is permitted by Ss. 38(3) in respect of ANY amendment that derogates from the legislative powers, the proprietary rights OR any other rights or privileges of the legislature or gov’t of a province. Ss. 38(3) permits the LA of a province to pass a resolution of dissent to an amendment of the kind described, and THEN the amendment shall NOT have effect in THAT province. It is NOT a unanimity req OR a veto b/c it does NOT permit a single province to block an amendment that is wanted by the federal gov’t and 7 provinces representing 50% of the population. All it does is enable any province to opt out of an amendment that derogates from that province’s powers, rights or privileges, and that is unacceptable to it. Maximum of 3 provinces can opt out; more would mean the amendment is defeated as it would not fulfill the seven-fifty rule. The resolution of dissent MUST be passed prior to the issue of proclamation of which the amendment relates. It can be revoked at any time before or after the issue of the proclamation (Ss. 38(4)). A resolution of assent may be revoked ONLY before the issue of the proclamation (Ss. 46(2)) if permitted after the proclamation is issued, it would render every amendment permanently vulnerable to abrogation by the action of a single province or a few provinces. (e) Compensation for opting out 40. Where an amendment is made under subsection 38(1) that transfers provincial legislative powers relating to education or other cultural matters from provincial legislatures to Parliament, Canada shall provide reasonable compensation to any province to which the amendment does NOT apply.
Ss. 40 imposes upon the federal gov’t the obligation to provide ‘reasonable compensation’ to any province that has opted out of an amendment that transfers ‘provincial legislative powers relating to education or other cultural matters from provincial legislatures to Parliament’ Purpose of this obligation is to ensure that a province is NOT pressured by financial considerations into abandoning jurisdiction over educational or cultural matters e.g. if an amendment transferring legislative
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authority over universities from the prov. Leg to the federal Parl’t could obtain the requisite 2/3 provincial support, in the absence of Ss. 40 there would be a powerful incentive on non-agreeing provinces not to opt out, b/c opting out would involve bearing a substantial expense (cost of running unis) from which other prov. gov’ts would be freed by the amendment. With Ss. 40, a province is freed from financial considerations in deciding whether or not to opt out of the amendment. Amendments that do not relate to education or cultural matters do NOT carry any constitutional right to compensation for opting out.
(f) Revocation of assent or dissent ONLY before the issue of the proclamation authorized by the resolution – Ss. 46(2) An opting-out resolution MAY be revoked at any time, before or after the issue of the proclamation is not objectionable (g) Section 42 Requires that the general amending procedure be used for 6 defined classes of amendments to CC. ONLY applies to amendments to the CC. 42. (1) An amendment to the Constitution of Canada in relation to the following matters may be made ONLY in accordance with subsection 38(1): (a) the principle of proportionate representation of the provinces in the HoC prescribed by the Constitution of Canada; (b) the powers of the Senate and the method of selecting Senators; (c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators; (d) subject to paragraph 41(d), the Supreme Court of Canada; (e) the extension of existing provinces into the territories; and (f) notwithstanding any other law or practice, the establishment of new provinces. (2) Subsections 38(2) to (4) do NOT apply in respect of amendments in relation to matters referred to in subsection (1).
Para (a) is the principle of proportionate representation in 1915 the Senate floor of Ss. 51A was introduced in to (BNAA) which guaranteed to each province a minimum number of Common seats equal to the number of the province’s Senate seats. The purpose was to limit the decline in representation of the maritime provinces that was caused by the relative decline in their populations.
Campbell v Canada (1988) held that a provision to protect the representation of declining provinces should NOT be regarded as offending ‘the principle; of proportionate representation and did NOT require a 7-50 amendment under Ss. 42(1)(a)
Paras (b) and (c) refer to the powers of the Senate, the method of selecting senators and provincial representation in the Senate. These are matters which have significance to the provinces as well as to the central gov’t. The effects of these paras is to withdraw these matters from the federal Parliament’s unilateral amending power under Ss. 44 and to require any amendment be adopted by the 7-50 formula Para (d) refers to the SC in all aspects other than its composition. Para (e) refers to the extension of existing provinces into the territories and (f) to the establishment of new provinces. The effects of these are to protect Ss. 2 and 3 of CA 1871 (authorizing federal Parl’t to carry them out) from repeal or amendment, except by the 7-50 rule Ss. 42(2) prohibits ANY province from opting out of amendments coming within Ss. 42. Thus Quebec could NOT opt out of an amendment to HoC or SC coming within Ss. 42(1) IF the 7-50 formula was fulfilled.
(h) Regional veto statute The general amending formula under Ss. 38 does NOT give any province a veto over constitutional amendments. After the narrow defeat of Quebec’s 1995 referendum on sovereignty, the federal Parl’t enacted a statute to ensure that Quebec would in future have a veto over most constitutional amendments. The purpose of the statute is to import new conditions into the general formula for amending CC. On top of the 7-50 formula, the statute imposes the new statutory requirement that the seven agreeing provinces MUST include the five
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regions stipulated in the Act (an Act representing constitutional amendments), namely, Ontario, Quebec, BC, 2 Atlantic provinces and 2 Prairie Provinces. The regional veto statute only applies to amendments that are to follow the general amending procedure of Ss. 38 and that do NOT afford a dissenting province the constitutional right to ‘opt-out’. Amendments that require unanimity under Ss. 41 OR that MUST be ratified by some-but-not-all-provinces under Ss. 43 are expressly excluded. Ss. 44 and 45 are NOT affected by this statute. 4.4 Unanimity procedure (Ss. 41)
41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the GG under the Great Seal of Canada ONLY where authorized by resolutions of the Senate and HoC and of the legislative assembly of each province: (a) the office of the Queen, the GG and the Lieutenant Governor of a province; (b) the right of a province to a number of members in the HoC NOT less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force; (c) subject to section 43, the use of the English or the French language; (d) the composition of the Supreme Court of Canada; and (e) an amendment to this Part.
Section 41 lists 5 matters in respect of which an amendment to CC requires the unanimous support of the provinces. Each province has a veto over the amendments. Specially entrenched b/c they are deemed to be matters of nat’l significance which should not be altered over the objection of even one province. Para (a) has the effect of entrenching those provisions of CC that deal with the monarchy and its representatives in Canada. Note however, that laws in relation to the Queen, GG, and Lieutenant Governor are NOT caught by the unanimity procedure IF they do not entail any change to any instrument comprising part of CC. Para (b) entrenches the right of the least populous provinces to a minimum number of members in HoC, thereby modifying the relentless application of representation by population (mentioned above). o If Ss. 51(a) were NOT protected by Ss. 41, it would be arguable that it could be repealed or amended by the federal Parl’t alone under Ss. 44 Para (c) entrenches those provisions of the CC that make provision for ‘the use of the English or French language’. Para (d) entrenches the composition of SC. o Since Ss. 41 applies to amendments to CC and since the rules regarding SC are contained in the SC Act, which is not part of CC, para (d) is probably ineffective. Para (e) provides that any amendment to the amending procedures themselves can ONLY be effected by the unanimity procedure of Ss. 41
An amendment made under this Ss. 41 is brought into force by proclamation of the GG. The time limits prescribed under Ss. 39 do NOT apply here; there is NO need for a waiting period since all legislative bodies have approved. Subject to no time limit. If it takes more than 3 years to secure all the required approvals, the amendment can still be proclaimed into law. 4.5 Some-but-not-all-provinces procedure (Ss. 43) An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including: (a) any alteration to boundaries between provinces; and (b) any amendment to any provision that relates to the use of the English or the French language within a province may be made by proclamation issued by the GG under the Great Seal of Canada ONLY where so authorized by resolutions of the Senate AND HoC AND of the LA of each province to which the amendment applies.
43.
There are provisions of CC which apply to one or more, BUT not all provinces. The obvious intent is to make such provisions somewhat easier to amend, but the ease of amendment will depend upon the no. of provinces involved. In Newfoundland, Term 17 removed the guarantees of public funding of denominational schools.
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Hogan v. Newfoundland (2000) Validity of the amendment was challenged in court by supporters of Roman Catholic denominational schools. They argued that Ss. 43 could NOT be the correct procedure for the amendment b/c the constitutional rights of a minority should NOT be able to be overridden by the majority. This was rejected as Term 17 ONLY affected Newfoundland and was therefore amendable under Ss. 43. Held - Ss. 43 expressly applies to provision of CC applying to ONLY one province.
4.6 Federal Parliament alone (s.44)
Ss. 44 authorizes the federal Parl’t, by ordinary legislation, to amend those parts of CC which relate to the executive gov’t or the Senate of HC. Ss. 44 is subject to s.41 and 42 and those 2 sections entrench some aspects of the executive gov’t, the Senate and HC. Matters listed in Ss. 41 can be amended ONLY with the unanimous consent of the provinces and those listed in Ss. 42 by the 7-50 procedure of Ss. 38(1) Ss. 44 repealed Ss. 91(1) of CA1867 which conferred on the federal Parl’t the power to amend CC; that phrase was given a very narrow meaning by SC and was subject to imp. exceptions. The result is that the scope of Ss. 44 is similar-the procedure has been used twice since 1982. 4.7 Provincial Legislature alone (Ss. 45) Ss. 45 authorizes each provincial Legislature, by ordinary legislation, to amend the ‘constitution of the province’. Ss. 45 is subject to Ss. 41 which requires that an amendment relating to the office of the Lieutenant Governor be made ONLY with the unanimous consent of ALL the provinces. Ss. 45 differs from the other sections mentioned that it makes NO reference to CC BUT refers to the constitution of the province which is NOT defined anywhere in CA1982. Ss.45 repealed Ss. 92(1) CA1867 which conferred on each prov. leg. the power to amend the constitution of the province. (case law is relevant under Ss. 45) The scope of Ss. 45 is somewhat obscured by Ss. 43. Ss. 43 explicitly authorizes an amendment to any provision of the CC which applies to a single province, and most of the imp rules of each province’s constitution are contained in instruments which form part of CC. BUT Ss. 43 requires the concurrence of the Senate and HoC for its amendments. Question is whether Ss. 45, which does not require the concurrence of either can be employed to amend those provisions of a province’s constitution that are contained in instruments forming parts of CC. A negative answer would leave this section with little to do. The affirmative answer seems the more plausible one, leaving s.43 to apply only to those provisions of CC which, although applicable to only one province do not come within the phrase of ‘constitution of the province’.
4.8 Future amendments (a) Forces of change The movement for constitutional reform which led to the const. amendments of 1982, and which will lead to continuing efforts to adopt other amendments to the Constitution is powered by a number of forces. (1) First and foremost is French-Canadian (FC) nationalism: French-Canadians are a minority as a whole, but the majority is in Quebec. The extreme form of FC nationalism would be satisfied ONLY by a separate nation in the territory of Quebec. 2 referendums (1980 and 1995) for a sovereign Quebec were defeated but it is obvious that there is a need to better accommodate the concerns of Quebeccers. (2) Western regionalism: which is based on a distinctive economic base of the four western provinces. Their economies depend upon the primary production of grain, oil, gas and other minerals. As the bulk of Canada’s population is concentrated in Ontario and Quebec, federal policies have tended to favour the manufacturing industries and consumers of central Canada. This tendency has been reflected in the tariffs that protect domestic manufacturing in transportation policies and for a time in federal control of the oil and gas. Two responses by western Canadians have been invoked-reduce power of the fed gov’t (which they cannot control) and to enhance the powers of the provincial gov’ts.
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(3) Demand of aboriginal peoples for entrenchment of their traditional rights: the native peoples were successful in securing several provisions in CA1982 including a guarantee of ‘existing aboriginal and treaty rights (Ss. 35) and a commitment to further constitutional discussions (Ss. 37) (4) Canadian nationalism: removal of vestiges of imperial power which required patriation and the adoption of domestic amending procedures. However the Queen’s position has not been touched who remains to be Canada’s formal head of state or Canada’s membership of the Commonwealth. a. Constitution Act 1867 – Part III – Executive Power i. The executive gov’t and Authority of and over Canada is hereby declared to continue and be vested in the Queen (5) Civil libertarian impulse to entrench a Charter of Rights in the Constitution: this was accomplished by the 1982 amendments. Quebec has never agreed to the Charter of Rights although it is legally binding on it. (6) There will be a continuing need for amendments which are perceived as necessary to repair gaps in the existing constitutional provisions, to alter judicial interpretations that are unacceptable, or to give effect to values that were not recognized at the time of confederation. Egs include amendments to confer powers over unemployment insurance and old age pensions.
(b) Division of powers The 1982 amendments made only one change in the division of powers b/w the 2 levels of gov’t and that was an increase in the provincial power over natural resources (this went some distance to meet western objectives as provincial powers had included tax natural resources and to control the production and price of natural resources). Other changes which had been actively considered in recent years includes transferring to the provinces some aspects of control over communications, marriage and divorce etc. The federal gov’t naturally resists decentralization and it is true that Canadian provinces are already more powerful, in both legislative and fiscal terms than American or Australian states in relation to their central governments. Moreover, the provinces differ so greatly in their size and wealth and aspirations that they do not agree on what new responsibilities they should assume and what they should give up. (c) Central Institutions A different approach to constitutional change concentrates on reforming the institutions of the federal gov’t so that regional attitudes and interests are more effectively represented within those institutions. This approach is dubbed intrastate federalism in contrast to interstate federalism, which involves the decentralization of powers.
(d) Criticism of amending powers It will be difficult to secure any amendment to the Constitution because of the high level of agreement required by the general amending procedure-8/11 is a group which is hard to assemble on anything and where opting out is available there will be a strong impulse to proceed only when the assent of all gov’ts is assured, since the checkerboard constitution which would develop through opting out would impose such severe strains on central institutions that is likely to be unacceptable to the federal gov’t and at least undesirable to most provincial governments. The unanimity rule is even more difficult to operate Read page 106-108.
5.7 Secession (a) the power to secede
The question whether a province has the power to secede from the Canadian federation became an issue after the election in Quebec 1976 of the Parti Quebecois. The gov’t held a referendum on May 20, 1980 asking the voters whether they would give to the gov’t of Quebec a mandate to negotiate a sovereignty association agreement with the gov’t of Canada which would involve an economic association b/w the new sovereign state of Quebec. The proposal was rejected by the Quebec voters by a majority of 59.5%.
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The defeat of the referendum was followed by constitutional discussions, one purpose of which was to act on the grievances that contributed to national sentiment in Quebec. The CA1982 did not achieve the goal of an accommodation with Quebec and was the only province that did not agree to the terms of the CA1982. The Meech Lake Accord of 1987 was approved by Quebec but it did not achieve ratification by all provincial legislatures that was necessary for it to come into force. The Charlottetown Accord of 1992 was also never implemented as it was defeated in a national referendum held in 1992. After the failure of these 2, the Parti Quebecois held another referendum in 1995 and this failed again; this time however the question made it clear that Quebec’s sovereignty would be declared regardless of Canada’s acceptance of an economic and political partnership. The 1995 referendum proceeded on the assumption that a unilateral declaration of independence would be legally effective to remove Quebec from Canada without the need for any amendment of CC and regardless of whether the terms of separation were agreed by Canada. This claim was challenged by a private individual Bertrand but the Court refused to issue an injunction to prohibit the holding of a referendum and the 1995 referendum proceeded. Eventually after losing the referendum and facing the prospect that another one would eventually be held in Quebec, the federal gov’t did come to appreciate the merit of securing a legal ruling on the validity of a unilateral declaration of independence.
*** Seccession Reference (1998) was a reference by the federal gov’t to the SC in which the Court was asked whether Quebec could secede unilaterally from Canada.
Three questions were put to the court: o (1) what was the position under CC, to which the court replied that unilateral secession was NOT permitted. o (2) what was the position under int’l law, to which the Court gave the same answer. o (3) What was the position if CC and int’l law were in conflict, did not have to be answered. SC held that secession could NOT be undertaken in defiance of the terms of CC. A secession would require an amendment to the CC and would have to be accomplished in accordance with its amending procedures, which would involve the participation of the federal gov’t and other provinces. It could NOT be accomplished unilaterally and would need to be negotiated with the federal gov’t and other provinces. It further said that a referendum which yielded a clear majority, while ineffective by itself to accomplish a secession, would confer legitimacy on demands for secession and would give rise to reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire. How is the constitutional obligation to negotiate to be enforced? SC acknowledged that where there are legal rights there are remedies but went on to suggest that in these circumstances the ONLY remedies might be political. These political aspects included the question whether the referendum had yielded ‘a clear majority on a clear question’ AND the question whether the diff parties were negotiating in good faith o What were the political sanctions for a failure to negotiate OR to negotiate in good faith? The Court did not say, EXCEPT to note that any such failure might have important ramifications in the eyes of the int’l community. The court brought up the principle of effectiveness briefly i.e. an unconstitutional secession could become successful IF the seceding gov’t achieved effective control of a territory and recognition by the int’l community. Canada would eventually have to recognize the reality. The immediate sequel to SR was the enactment by Parliament of the Clarity Act which picks up on the Court’s insistence that it would be up to the political actors, NOT the Court to determine whether a referendum had yielded a clear majority on a clear question. Section 1 of this at provides that, IF a province proposes a referendum on secession, HoC is to consider and determine whether the question is ‘clear’ this depends on whether, in HoC’s opinion the question would result in a clear expression of the will of the population of a province on whether the province should cease to be a part of Canada and become an independent state. If it is NOT clear, if it merely focuses on a mandate to negotiate or if it envisages economic OR political arrangements with Canada that obscure a direct expression of the will of the people on whether the province should cease to be part of Canada.
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If it is deemed unclear the Gov’t of Canada is prohibited by the Act from entering into negotiations for secession following a referendum based on that question. Section 2 provides if a question is clear and referendum results in a majority HoC is to consider the result and determine whether the majority is clear (NOT defined in the Act). Section 3 recognizes that there is no right of unilateral secession under CC and that an amendment of CC would be required for a province to secede from Canada. The Secession reference and the Clarity Act make clear that a constitutional amendment IS needed for the secession of a province and they set some useful ground rules for the consultation of the Quebec population and for the initiation of negations leading to the required constitutional amendment. They also acknowledge that Canada is divisible and that a clearly expressed will to secede would have to be respected by the rest of the country at least to the point of good faith negotiation of the terms of secession.
(b) Secession by amendment
Which amendment procedure would be used? Ss. 38 (7-50 formula)? It covers all matters NOT specifically provided for elsewhere in the amending procedures. Argument for Ss. 41 is that secession would have an indirect impact on the matters specified in Ss. 41 and it would be anomalous if secession could be accomplished more easily than some other classes of amendments. This issue is unresolved. Important element added by SC in Secession Reference was the existence of an obligation on the part of all parties to the amending procedures to use their best efforts to negotiate an agreed upon amendment in the event a majority was declared.
(c) Secession by unilateral act Secession Reference (1998) – held that Quebec has NO right to secede unilaterally from Canada, EVEN IF secession was approved by a clear majority of people in Quebec voting in a referendum on a CLEAR question. HOWEVER – referendum gives rise to constitutional obligation on federal and provincial gov’ts to negotiate in good faith to produce agreed amendment to Constitution of Canada IF NO AGREEMENT- possibility that de facto secession could eventually become successful by virtue of the principle of effectiveness – “effectivity” Reference re Secession of Quebec, [1998]
Reference by governor in council pursuant to §. 53 of the Supreme Court Act, the following questions: 1. Under the CC, can the Nat’l Assembly, legislature or gov’t of Quebec effect the secession of Quebec from Canada unilaterally? 2. Does int’l law give the Nat’l Assembly, legislature or gov’t of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under int’l law that would give the Nat’l Assembly, legislature or gov’t of Quebec the right to effect the secession of Quebec from Canada unilaterally? 3. In the event of a conflict between domestic and int’l law on the right of the Nat’l Assembly, legislature or gov’t of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada? Issues
Regarding the Court's reference jurisdiction were raised by the amicus curiae. He argued that Ss. 53 of the Supreme Court Act was unconstitutional; that, even if the Court's reference jurisdiction was constitutionally
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valid, the questions submitted were outside the scope of Ss. 53; and, finally, that these questions were not justiciable. Held:
Ss 53 of the Supreme Court Act is constitutional & Court should answer q’s.
(1) Supreme Court's Reference Jurisdiction Ss 101 Constitution Act, 1867 gives Parl’t authority to grant SC reference jurisdiction provided for in Ss. 53 Supreme Court Act. While, in most instances, this Court acts as the exclusive ultimate appellate court in the country, an appellate court can receive, on an exceptional basis, original jurisdiction not incompatible with its appellate jurisdiction. There is no constitutional bar to this Court's receipt of jurisdiction to undertake an advisory role.
Both Questions 1 and 2 fall within s. 53(1)(d), since they relate to the powers of the legislature or government of a Canadian province. Finally, all three questions are "important questions of law or fact concerning any matter" and thus come within s. 53(2). In answering Question 2, the Court is not exceeding its jurisdiction by purporting to act as an international tribunal. The Court is providing an advisory opinion to the Governor in Council in its capacity as a national court on legal questions touching and concerning the future of the Canadian federation. Further, Question 2 is not beyond the competence of this Court, as a domestic court, because it requires the Court to look at international law rather than domestic law. More importantly, Question 2 does not ask an abstract question of "pure" international law but seeks to determine the legal rights and obligations of the legislature or government of Quebec, institutions that exist as part of the Canadian legal order. International law must be addressed since it has been invoked as a consideration in the context of this Reference.
(2) Question 1
The CC is more than a written text. It embraces the entire global system of rules and principles, which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, w/o more, may be misleading. It is NEC to make a more profound investigation of the underlying principles animating the whole of the Constitution, including the principles of federalism, democracy, constitutionalism and the ROL, and respect for minorities. Those principles MUST inform our overall appreciation of the constitutional rights and obligations that would come into play in the event that a clear majority of Quebecers votes on a clear question in favour of secession. The Court in this Reference is required to consider whether Quebec has a right to unilateral secession. Arguments in support of the existence of such a right were primarily based on the principle of democracy. Democracy, however, means more than simple majority rule. Constitutional jurisprudence shows that democracy exists in the larger context of other constitutional values. Since Confederation, the people of the provinces and territories have created close ties of interdependence (economic, social, political and cultural) based on shared values that include federalism, democracy, constitutionalism and the ROL, and respect for minorities. A democratic decision of Quebecers in favour of secession would put those relationships at risk. The Constitution vouchsafes order & stability, and accordingly secession of a province "under the Constitution" could NOT be achieved unilaterally, that is, without principled negotiation with other participants in Confederation within the existing constitutional framework. Our democratic institutions necessarily accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change. This right implies a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to change the constitutional order.
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A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would HAVE TO recognize.
Quebec could NOT, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have NO legal effect on its own and could not push aside the principles of federalism and the ROL, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. Democratic rights under the CC cannot be divorced from constitutional obligations. Nor, HOWEVER, can the reverse proposition be accepted: the continued existence and operation of the Canadian constitutional order could NOT be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The other provinces and the federal government would have NO basis to deny the right of the gov’t of Quebec to pursue secession should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed. There would be no conclusions predetermined by law on any issue. Negotiations would need to address the interests of the other provinces, the federal government and Quebec and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities.
The negotiation process would require the reconciliation of various rights and obligations by negotiation between two legitimate majorities, namely, the majority of the population of Quebec, and that of Canada as a whole. A political majority at either level that does not act in accordance with the underlying constitutional principles puts at risk the legitimacy of its exercise of its rights, and the ultimate acceptance of the result by the international community.
The task of the Court has been to clarify the legal framework within which political decisions are to be taken "under the Constitution" and not to usurp the prerogatives of the political forces that operate within that framework. The obligations identified by the Court are binding obligations under the Constitution. However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken. Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle. The reconciliation of the various legitimate constitutional interests is necessarily committed to the political RATHER THAN the judicial realm precisely b/c that reconciliation can ONLY be achieved through the give and take of political negotiations. To the extent issues addressed in the course of negotiation are political, the courts, appreciating their proper role in the constitutional scheme, would have no supervisory role.
Question 2: The Court was also required to consider whether a right to unilateral secession exists under international law. Some supporting an affirmative answer did so on the basis of the recognized right to self-determination that belongs to all "peoples". Although much of the Quebec population certainly shares many of the characteristics of a people, it is not necessary to decide the "people" issue because, whatever may be the correct determination of this issue in the context of Quebec, a right to secession ONLY arises under the principle of self-determination of people at int’l law where "a people" is governed as part of a colonial empire; Where "a people" is subject to alien subjugation, domination or exploitation; and possibly where "a people" is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state. A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states.
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Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development. In the circumstances, the "National Assembly, the legislature or the government of Quebec" do NOT enjoy a right at international law to effect the secession of Quebec from Canada unilaterally. Although there is no right, under the CC or at int’l law, to unilateral secession, the possibility of an unconstitutional declaration of secession leading to a de facto secession is NOT ruled out. The ultimate success of such a secession would be dependent on recognition by the int’l community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition. Even if granted, such recognition would not, however, provide any retroactive justification for the act of secession, either under the Constitution of Canada or at international law.
Question 3 In view of the answers to Questions 1 and 2, there is no conflict between domestic and international law to be addressed in the context of this Reference.
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CHAPTER 5: FEDERALISM AND JUDICIAL REVIEW
5.1 Distribution of governmental power (a) Federalism
Canada is a federal state or a federation. In a federal state, gov’tal power is distributed b/w a central (national/federal) authority and sever regional (provincial/state) authorities o Every individual in the state is subject to laws of TWO authorities central and regional. BOTH authorities are coordinate-NEITHER is subordinate to the other. On the contrary, a unitary state (UK) gov’t power is vested in one national authority, with local or municipal governments subordinate to it. In the event of an inconsistency between a federal law and a provincial/state law, it is the federal/national law that prevails.
(b) Confederation Canada has been described as a confederation. The term is usually used to mean a loose association of states in which the central government is subordinate to the states. In its technical sense, the central government is the delegate of the states or provinces; its powers are delegated to it by the states and provinces, who retain the right to resume the delegated powers IF they wish this is NOT the case in Canada; the provinces are in a way subordinate to the central gov’t BUT usage of the term has made it correct. (c) Legislative Union The United States or provinces form a unitary state, which incorporates the former units and subjects them to the authority of a single central legislature (UK is one for England, Wales, Scotland and N.Ireland). Upper Canada (Ontario) had wanted this BUT lower (Quebec) and the Maritime Provinces did not. (d) Special Status While the provinces are not perfectly equal, the differences are NOT so marked as to justify the description ‘special status’. Special status is the term, which has been applied to proposals for constitutional change under which one province (most likely Quebec) would possess larger powers than the other provinces. (e) Dominion and provinces
In Canada the regions are known as provinces.
The BNAA created one Dominion under the name of Canada. The term dominion is no longer used BUT is convenient to have a name to distinguish the central authority from the provinces. (f) Regions The term ‘region’ has NO precise meaning in Canadian political discourse, BUT the idea of region has been influential in several contexts: o (i) Membership of the Senate: the numbers are drawn equally from regions, which the Act described as ‘divisions’. o (ii) Membership of the SC has also been based on the regional idea. The SC Act requires that 3 of the 9 judges be appointed from Quebec. This legal requirement has been supplemented by a practice of appointing three judges from Ontario, two judges from the four western provinces, and one judge from the four Atlantic Provinces. o (iii) The seven-fifty formula of Ss. 38 REJECTS the idea of regions in favor of the equality of the provinces. An amendment requires the consent of the federal Parliamet+7 provinces+50% population. In fact, this formula DOES indirectly impose some regional requirements in that seven provinces will always include at least one western province and one Atlantic province, and 50% of the population will always include either Ontario OR Quebec. o (iv) The “regional veto statute” superimposes a requirement of regional consent on the 7-50 formula, since a resolution on a matter as significant as the amendment of CC can ONLY pass in the House of Commons with the support of the gov’t of the day. (g) Subsidiarity
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Principle of social organization that prescribes that decisions affecting individuals should, be made by the level of gov’t CLOSEST to the individuals affected. Despite some departures, the division of powers in BNAA did generally adhere to the principle of subsidiarity. The principle was reinforced by the decisions of the courts in the early years of the confederation, which established rules that continue to set patterns in modern Canada. The provincial power over property and civil rights were given a broad interpretation, so that now include not only the private law of property, contract and torts, BUT ALSO most of commercial law, consumer, environmental, labour and health law and social services Result is that the laws that impact most directly on the individuals are for the most part provincial.
5.2 Reasons for federalism
In a country that covers a large area and includes diverse regions, there may be advantages of efficiency and accountability in dividing the powers of gov’t so that a nat’l gov’t is responsible for matters of nat’l importance and provincial or state gov’ts are responsible for matters of local importance. A province, being more homogenous that the nation as a whole will occasionally adopt policies that are too innovative or radical to be acceptable to the nation as a whole; IF the programme works out well it may be copied by other provinces and perhaps by the federal gov’t. The division of gov’t power inherent in a federal system operates to preclude an excessive concentration of power and thus a check against tyranny.
5.3 Federalism in Canada
The framers of the BNAA planned a strong central gov’t. The Act gives the provinces only enumerated powers to make laws, giving the residue of power to the federal gov’t; thus making the provinces subordinate to the federal authority. However, the development of case law, convention and practice has virtually eliminated the elements of provincial subordination in the Constitution. In the early years of the confederation, the relationship b/w the new national gov’t and the provinces was more akin to a colonial relationship. Over the years however, there has been a steady growth in the power and importance of the provinces. The federal power to disallow provincial statutes (Ss. 90, CA1867) was frequently exercised by the dominant federal gov’t in the early years of the confederation. Modern development of ideas of JR and democratic responsibility has left NO room for the exercise of the federal power of disallowance. Appointment of Lieutenant Governor (LG): The federal power to appoint LG is another apparent breach of federal principle o This power is regularly exercised by the federal gov’t BUT once an appointment is made the LG is in NO sense the agent of the federal gov’t; he or she is obliged by the conventions of responsible gov’t to act on the advice of the provincial cabinet. Appointment of judges: the federal power under Ss. 96 CA1867 to appoint the judges of the higher provincial courts is exercised by the federal cabinet whenever a superior, district or county court judgeship has to be filled. o Since 1949 the final court of appeal has been SC which is a federal court created by a federal statute, judges appointed and paid by the federal gov’t. Education appeals: the federal power under Ss. 93 CA1867 to enact remedial laws to correct provincial incursions on minority educational rights has NEVER been exercised, and has in practice become obsolete. Declaratory power: the federal Parl’t power under Ss. 92(10)(c) to bring a local work within federal jurisdiction by declaring it to be ‘for the general advantage of Canada’ was frequently used in the past, in respect of local railways. It has only been used sparingly in recent years.
5.4 Supremacy of the Constitution
The essential characteristic of a federal constitution is the distribution of governmental power b/w coordinate central and regional authorities. This requires a constitution, which defines the powers vested in the 2 central and regional authorities. The constitution (or at least part of it) MUST be in writing because such a vital matter could NOT be left to unwritten understandings. The constitution MUST be supreme o It MUST be binding on, unalterable, by central and regional authorities. IF either could unilaterally change the distribution of powers, THEN the authorities would NOT be coordinate
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o Supreme power would lie w/ the authority having power to change CC In Canada, neither the federal Parl’t nor a provincial legislature has the power to alter unilaterally the provisions of CC o Amending procedures of Part V CA1982 MUST be used for that purpose. This entrenchment of CC makes it ‘rigid’ (NOT implying it can’t be amended; can ONLY be done by a special more difficult process). Ss. 52(1) CA 1982 expressly affirms the supremacy over all other laws of CC
5.5 Role of the Courts (a) Development of JR The provisions of a constitution distributing legislative power will be couched in general language, which CANNOT be free from doubt or ambiguity. There will therefore be disputes as to whether or not a particular legislative body has the power to enact a particular statute. Any federal system therefore has to have a machinery for settling disputes as to whether or not a particular legislative body has the power to enact a particular statute. In the US case Marbury v Madison (1803) the US SC took upon itself the power to settle disputes about the distribution of legislative power. In Canada, the Privy Council assumed the right to review the validity of legislation enacted by the Canadian legislative bodies. SC assumed power in 1875. Ss. 52(1) current basis of JR in Canada (‘any law inconsistent with the provisions of the Constitution is to the extent of the inconsistency, of no force or effect’). CA1982 BROADENED the scope of JR by adding a Charter of Rights to CC, which adds an additional set of provisions limiting the power of legislative bodies. Many more laws are reviewed on charter grounds than on federalism grounds. (b) Limitations of JR In a federal state such as Canada, where legislative powers are distributed, one function of JR is to enforce the distribution of powers rules. The courts often have to determine whether a particular statute comes within the powers conferred by the Constitution on the legislative body that enacted the statute o IF the statute is judicially determined to be OUTSIDE the powers conferred upon enacting body, THEN statute is ultra vires and for that reason invalid. A second function of JR is to enforce the Charter restrictions and the other non-federal restrictions. The courts often have to decide whether a statute violates a constitutional prohibition, for example by unjustifiably abridging freedom of expression o IF the statute is judicially determined to violate the prohibition, then the statute is ultra vires and for that reason invalid. The language of the Constitution is for the most part broad and vague. The scope of potential gov’t activity is so enormous that many problems will inevitably be overlooked by the framers of the text. The passage of time produces social and economic changes, which throws up new problems which could NOT possibly have been foreseen by the framers of the text. For these reasons, the court probably has to apply a larger discretionary judgment to its constitutional decisions than it does to its decisions in other fields of the law. The judges upon whom this task is entrusted are NOT well suited to the policy, making which is inevitably involved. They are NOT accountable to any electorate or gov’t for their decisions. Their background is NOT broadly representative of the population: they are recruited from a small class of successful middle-aged lawyers and do NOT necessarily have much knowledge in or experience of public affairs. The resources available to them are limited by practice and procedure of an Anglo-Canadian court: they are obliged to decide cases on the basis of the limited information presented to them in court; they have NO powers to initiate inquiries or research and of course NO power to enact a law in substitution for one declared invalid. There can be no doubt that JR permits/requires non-elected judges to make decisions of great political significance. Yet Canada’s adoption of the Charter of Rights in 1982 was a conscious decision to increase the scope of JR. (c) Alternatives to judicial review Criticism of the courts has sometimes led to suggestions that we take away from them the task of JR. The difficulty is that some other and better way of resolving federalism disputes has to be found. One proposal for reform involves the establishment outside the ordinary courts of a specialized tribunal for constitutional disputes which could include non-lawyers as well as lawyers and which could be consciously composed so as to reflect different cultural and regional interests within Canada.
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Another proposal is to divide the SC into specialized divisions-common law, civil and constitutional law division: each would be composed in such a way as to ensure maximum expertise in its own field of law. It is very difficult AND probably unwise to isolate constitutional issues for determination by a special court/division when they usually arise in practice in a factual setting, which also raises issues of statutory interpretation, common law and (in Quebec) civil law.
5.6 Amending Power
It is a feature of Canada, US and Australia that the amending process includes procedures designed to ensure that any amendment enjoys the support, not only of the federal legislative body BUT of some of the regional legislatures or governments or electorates as well.
5.8 Cooperative federalism
The formal structure of the Constitution carries a suggestion of eleven legislative bodies each confined to its own jurisdiction and each acting independently of the others; in some fields this happens whereas in many others, effective policies require the joint or at least complementary, action of more than one legislative body. Particularly this is so where humanitarian and egalitarian sentiments have called for nation-wide minimum standards of health, education, income maintenance and other public services, MOST of which are within the territorially-limited jurisdiction of the provinces. With regards to the fiscal systems, in order to counter Canada’s disparities in regional wealth, the richer regions have to help the poorer regions. To some extent they have always done so, BUT the current redistribution of gov’t revenue through shared-cost programmes and equalization grants is on an unprecedented scale of size and complexity. The related demands of interdependence of gov’t policies, equalization of regional disparities, and constitutional adaptation have produced ‘cooperative federalism’ The essence of cooperative federalism is a network of relationships b/w the executives of the central and regional gov’ts. Through these relationships mechanisms are developed, especially fiscal mechanisms, which allow a continuous redistribution of powers and resources w/o recourse to courts OR amending process (consultations occur on issues of both federal/provincial gov’ts) MOST dominant in the federal-provincial financial arrangements.
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4. Principles of Interpretation Chapter 15: JR on Federal Grounds
15.2 Priority between federal and Charter grounds
Ss. 52 of CA1982 – A law contrary to any provision of CC is ‘of no force or effect’. BOTH federal distribution of powers AND Charter of Rights (CR) are part of CC. o However CC trumps CR In reviewing the validity of a law, 2 q’s: o FIRST is whether the law is within the law-making power of the enacting body o SECOND is whether the law is consistent with the CR. This way of comparing the status of federal part of the CC with CR finds support in Ss. 32 (1) CR makes the CC applicable to the federal Parl’t and provincial Legislatures. o Ss. 32: Application of the CR rules is limited to the distribution-of-powers authority of the Parl’t or the Legislature. Thus the CR does NOT apply to a law that is ultra vires on federal grounds; such law is invalid, BUT only for beach of the power distributing provisions of the Constitution: it CANNOT also be valid for breach of the Charter. Ss. 33 of CR enables Parl’t or a Legislature to override MOST of the provisions of CR by including in a statute a declaration that statute to operate notwithstanding CR THUS argument that of PRIORITY of federalism issues over CR issues
15.3 Procedure of JR
The procedural and evidentiary rules representing JR on federal grounds are mostly the same as those representing JR on Charter grounds. (Dealt with in other chapters)
15.4 Reasoning of JR
Distribution of legislative power b/w federal Parl’t and prov. leg is MAINLY set out in Ss. 91 and 92 of CA1867. Former lists laws competent to fed P and latter to prov. leg. The distinctive terminology used in the 2 sections emphasizes and helps to describe the 2 steps involved in the process of JR: o (1) Identify the matter of the challenged law (characterization of the challenged law); and o (2) assign the matter to one of the ‘classes of subjects’ or heads of leg power (interpretation of the power distributing provisions of the Constitution). The process in Laskin’s words “an interlocking one, in which the BNA Act and the challenged legislation react on one another and fix each other’s meaning”
15.5 Characterization of laws (a) Matter The first step in JR is to identify the ‘matter’ of the challenged law (it is usually described as the pith or substance of the law). The general idea is that it is necessary to identify the dominant OR MOST important characteristic of the challenged law. SOLE purpose of identifying the ‘matter’ of a law is to determine whether the law is constitutional or not. In identifying the matter of the law, the Courts therefore tend to use concepts that will assist in determining to which head of power the ‘matter’ should be allocated. The difficulty in identifying the ‘matter’ of a statute is that many statutes have one aspect that comes within the provincial head of power AND another that comes within a federal head of power. o I.e. Case of a provincial statute that imposes a direct tax on banks- one feature is direct taxation which comes within a provincial class of subjects and the other feature is banking which comes within a federal class of subjects. What do courts do? The law has BOTH the relevant qualities and there is NO logical basis for preferring one over the other. Courts make a judgment as to which is the MOST important feature of the law and to characterize the law by that feature o The dominant feature is the ‘matter’, the other feature is merely incidental, irrelevant for constitutional purposes. Bank of Toronto v Lambe (1887) – Privy Council Upheld provincial law imposing tax on banks. The dominant feature of the law was to raise revenue and accordingly the matter of the law was taxation, NOT banking.
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It is important to recognize that this ‘pith and substance’ doctrine enables one level of gov’t to enact laws with substantial impact on matters outside its jurisdiction. The levy of the tax in the above mentioned case was a significant exercise of legislative power over banks; BUT b/c the law was characterized as ‘in relation to’ taxation (pith and substance or matter), it could validly ‘affect’ banking.
Alberta Bank Taxation Reference (1938) – Privy Council Struck down an Alberta law which imposed a special tax solely on banks because the pith and substance was to discourage the operation of the banks in Alberta. (b) Singling out Alberta Bank is occasionally read as prohibiting the provincial legislatures from ‘singling out’ banks OR other federal undertakings for special treatment. IF the effect of a prov law is to impair the status/essential powers of a federally incorporated company OR affect a vital part of a federally regulated enterprise, THEN the prov law will NOT apply to the federallyincorporated company (though it will remain valid in its general application). (c) Double Aspect Privy Council announced early on that ‘subjects which in one aspect and for one purpose fall within Ss. 92, may in another aspect and for another purpose fall within Ss. 91 double aspect doctrine. The courts have NOT explained when it is necessary to make a choice b/w the federal and provincial features of a challenged law. This doctrine is the course of judicial restraint. When the court finds that the federal and provincial characteristics of a law are roughly equal in importance, THEN the conclusion is that laws of that kind may be enacted by EITHER Parl’t or a Leg. Eg’s: o (i) Laws prescribing rules of conduct on the roads have a double aspect and are therefore competent to both Parl’t and a Leg. o (ii) Securities regulation is another field where some laws have a double aspect. SC has upheld BOTH a provincial and a federal law, each creating an offence of issuing a false prospectus. Lederman’s explanation seems to be the ONLY plausible one o Double aspect doctrine applicable when “contrast btw relative IMP of two features is NOT so sharp” (d) Purpose As mentioned Alberta Bank, fact that provincial law levies tax is NOT decisive of classification as taxing measure Court will look beyond the direct legal effects to inquire into the social or economic purposes which the statute was enacted to achieve. What is meant by the ‘purpose’ of a statute? In the sense of a function and sometimes a preamble to the statute will make clear what the purpose is. In determining the purpose, there is NO doubt as to propriety of reference to the state of law BEFORE the statute and the defect in the law, which statute tries to correct. Lederman: what is really being sought is “the full or total meaning of the rule”, judged “in terms of the consequences of the action called for” (e) Effect In characterizing a statute, a court will ALWAYS consider the effect of a statute, in the sense that the court will consider HOW the statute changes the rights and liabilities of those who are subject to it. This simply involves understanding the terms of the statute, and that can be accomplished WITHOUT going beyond the four corners of the statute. (f) Efficacy In characterizing a statute for the purpose of JR on federal grounds, it is relevant to look at the purpose AND effect of the statute. However that does NOT mean that the reviewing court should pass judgment on the likely efficacy of the statute. That would breach the longstanding injunction that courts are not concerned with the wisdom or policy of legislation. Re Firearms Act (2000) Efficacy is a matter for Parliament, not the court’s division of powers analysis
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The purpose of the legislation CANNOT be challenged by proposing an alternate, allegedly better, method for achieving that purpose” (g) Colourability This doctrine is invoked when a statute bears the formal trappings of a matter within jurisdiction, BUT in reality is addressed to a matter outside jurisdiction. Alberta Bank Taxation Reference - Privy Council Held that the legislation, although ostensibly designed as a taxation measure, WAS in reality directed at banking.
This doctrine applies the maxim that a leg body cannot do indirectly what it cannot do directly Often a leg body finds a way to do so, eg: o Federal Parl’t CANNOT regulate the delivery of health care in the provinces BUT it can transfer cash and tax points to ONLY those provinces whose health care plans comply w/ federal standards Page 15-19 case law examples of laws struck down
(h) Criteria of choice (for characterization of a statute) Full understanding of the legislative scheme and so forth are important BUT inevitably the choice is of policy. Conceptions of efficiency and democracy are taken into consideration. Where the choice b/w competing characterizations is NOT clear, the choice which will support the leg is normally to be preferred. Simeon has suggested the 3 values of community, efficiency and democracy as criteria that are helpful to an appraisal of the allocation of power in a federal system JR can NEVER be wholly neutral, wholly divorced from the predilections of judges. THUS in federalism cases judicial restraint should be a governing precept. (i) Presumption of Constitutionality The presumption of constitutionality carries three legal consequences: o (i) In choosing between competing, plausible characterizations of law – court normally chooses one that supports validity of law o (ii) Where validity of law requires finding of fact, it need NOT be proved strictly by gov’t. It is ENOUGH that there be a “rational basis” for the finding o (iii) Where a law is open to BOTH a narrow AND a wide interpretation – the court should “read down” the law so as to confine it to those applications that are within the power of the enacting legislative body. IF law challenged on Charter grounds, as opposed to federal grounds, there is NO presumption of rd constitutionality, EXCEPT for the 3 doctrine, “reading down”, which ALSO applies to Charter cases
15.6 Severance
Statute will stand or fall as a whole when its validity is questioned. However, it is possible to say that part only of a statute is invalid, and the balance of the statute would be valid IF it stood alone. Of course the balance doesn’t stand alone: and the question arises whether the court should ‘sever’ the bad part thereby preserving the good part, OR whether the entire statute should be declared as bad. The rule which the courts have developed is that severance is inappropriate WHEN the remaining good part is so ‘inextricably bound up with the part declared invalid that what remains cannot independently survive’; in that event, it may be assumed that the leg body would NOT have enacted the remaining part by itself. IF two parts CAN exist independently of each other so that it is plausible to regard them as two laws with diff matters, THEN severance is appropriate, b/c it may be assumed that the leg body would have enacted one even if it had been advised that it could not enact the other. The Privy Council and SC have both been difficult to persuade that severance is appropriate. There seems to be a presumption against severance. Severance is more common in CR cases. Charter review is based on the question whether the ‘purpose’ or the ‘effect’ of the law abridges a Charter right. Severance is an imp tool of judicial restraint, b/c it circumscribes the impact of a successful Charter attack on a law.
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15.7 Reading down
This doctrine requires that, whenever possible, a statute is to be interpreted as being within the power of the enacting legislative body. What this means in practice is that general language in a statute which is literally apt to extend beyond the power of the enacting P or L will be construed more narrowly so as to keep it within the permissible scope of power. It is simply a cannon of construction/interpretation. It is only available where the language of the statute will bear the limited meaning (valid) as well as the extended (invalid) meaning; it then stipulates that the limited meaning be selected.
15.8 Interjurisdictional immunity (II) (a) Definition of interjurisdictional immunity The term does not have a precise meaning. A law that purports to apply to a matter outside the jurisdiction of the enacting legislative body may be attacked in three diff ways. The attack may go to: (1) Validity of the law: law is invalid b/c the matter of the law comes within a class of subjects that is outside the jurisdiction of the enacting legislative body. The question of validity depends upon the characterization of the law. (2) Applicability of the law: acknowledge the law is valid in MOST of its applications and argue that the law should be interpreted so as NOT to apply to the matter that is outside the jurisdiction of the enacting body. Technique for limiting the application of the law to matters within the jurisdiction is the “reading down” doctrine. (3) Operability of the law: argue the law is inoperative through the doctrine of paramountcythis stipulates that where there are inconsistent federal and prov laws, federal law prevails thus rendering the prov law inoperative to the extent of its inconsistency. (b) Federally-incorporated companies The idea of (II) finds its genesis in cases concerning federally-incorporated companies. It has been held that an otherwise valid provincial law may not impair the status/essential powers of a federally incorporated company. Undertakings engaged in inter-provincial or int’l transportation or communication, which come within federal jurisdiction under the exception to Ss. 92(10) CA1867, are immune from otherwise valid prov laws which would have the effect of ‘sterilizing’ the undertakings. Until 1966 the prov laws that were held inapplicable to federally regulated undertakings were laws that asserted a power to sterilize (paralyze or impair) the federal authorized activity. This possibility, however unlikely in practice, was the basis of each decision. Bell 1966 – BROADENED SCOPE SC abandoned the language of sterilization and held that Bell Telephone Company (an inter-provincial undertaking) was immune from a provincial minimum wage law on the lesser ground that such a law ‘ affects a “vital part” of the management and operation of the undertaking’. The new vital part test carved out a broader field of immunity from prov law and precluded the application of prov laws that could not possibly paralyze or even impair the operation of the federally regulated undertaking. The decision in Bell meant that workers in federal industries were NOT protected by minimum wage laws, because at that time there was no federal minimum wage. Bell 1988 Beetz J held that occupational and safety laws, b/c they regulated labour relations within a firm, affected a vital part of the management and operation of the firm (the vital part test was reaffirmed). Irwin Toy v. Quebec 1989 – NARROWED scope of test SC had to decide whether a Quebec law that prohibited advertising directed at children could apply to advertising on television (a federally regulated medium). Held: the law was applicable to advertising on television. The Court acknowledged that advertising was a vital part of the operation of a television broadcast undertaking. BUT now the Court said that the vital part test applied ONLY to prov laws that purported to apply directly to federal undertakings.
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Where a prov law had an ‘indirect effect’ on the undertaking the law would be inapplicable ONLY if the law impaired a vital part of the undertaking. In this case, the prov prohibition on advertising applied to advertisers, NOT the media; the media were NOT directly prohibited from carrying out the advertisement. Irwin Toy constituted an important qualification of the vital part test and made little sense.
*** Canadian Western Bank (CWB) v Alberta (2007) Majority of the Court confirmed that it had changed its mind about the test for (II). The Court announced that it was completing the ‘reassessment begun in ‘Irwin Toy’. It no longer mattered whether the effect of a provincial law on the core or vital part was direct or indirect In either case the rule was the same: in the absence of impairment, II does not apply. Impairment would involve an ‘adverse consequence’ that placed the core or vital part ‘in jeopardy’ although ‘without necessarily sterilizing or paralyzing’. FACTS: The issue in (CWB) was whether Alberta’s Insurance Act could constitutionally apply to the banks. The Act required a ‘deposit-taking institution’ (including federally-regulated banks) to obtain a licence from the province and comply with provincial consumer protection laws in order to promote insurance to its customers. The federal Bank Act had been amended in 1991 to grant the banks the power to promote to their customers certain types of creditors’ insurance against events that would impair their borrowers’ ability to repay a loan from the bank, for eg, the death, disability or loss of employment of the borrower. The banks argued that the close relationships of creditors’ insurance to those functions made the promotion of insurance by banks a vital part of banking (apart from lending money and taking of securities). The Court held that the vital part of an undertaking should be limited to functions that were ‘essential’ to the federal character of the undertaking; and that the promotion of insurance by banks was too far removed from the core of banking to qualify as a vital part of the banking undertaking. Therefore, the Alberta Insurance Act could validly apply to the banks when they promoted insurance. The general tenor of the majority opinion in CWB was unsympathetic to II on the basis that a court should favour, where possible, the ordinary operation of statutes enacted by both levels of gov’t. The doctrine operated in practice as a restraint on provincial power, which undermined the principle of subsidiarity that decision-making should take place at the level of gov’t closest to the individuals affected. The Court held that this doctrine should be applied with restraint.
II cases do NOT concern prov laws that single out federal undertakings, works, persons or services for special treatment. In every case where prov laws were held inapplicable was a law of general application that was indisputably valid in most of its applications. II insists that the same result cannot be accomplished by the enactment of the broader law that, by reason of its non-federal applications, could be characterized as in relation to a provincial matter. The difficulty is to distinguish when II applies from occasions when the pith and substance doctrine (which stipulates that a law in relation to a provincial matter may validly affect a federal matter) applies. The latter is applied more frequently than II, which reads down the prov law to exclude the federal matter. II doctrine is not reciprocal.
*** CONTRAST WITH Quebec v Canadian Owners and Pilots Association FACTS L and G built an aerodrome, which is registered under the federal Aeronautics Act, on their land zoned as agricultural in the province of Quebec. Section 26 of the Quebec Act respecting the preservation of agricultural land and agricultural activities (“ARPALAA”) prohibits the use of lots in a designated agricultural region for any purpose other than agriculture, subject to prior authorization by the Commission de protection du territoire agricole du Québec. Since L and G did NOT obtain the Commission’s permission prior to constructing the aerodrome, the Commission ordered them to return their land to its original state pursuant to s. 14 ARPALAA. L and G challenged the Commission’s decision on the ground that aeronautics is within federal jurisdiction. The Administrative Tribunal of Québec, the Court of Québec and the Superior Court all upheld the decision, BUT the Court of Appeal found that interjurisdictional immunity precluded the Commission from ordering the dismantling of the aerodrome. Held (LeBel and Deschamps JJ. dissenting): The appeal should be dismissed. Per McLachlin C.J. and Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ.: Section 26 ARPALAA is valid provincial legislation. When both its purpose and effect are considered, s. 26 is, in pith and substance, legislation
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about land use planning and agriculture. This matter falls within provincial jurisdiction under s. 92(13) (property and civil rights), s. 92(16) (matters of a merely local or private nature), or s. 95 (agriculture) of the Constitution Act, 1867. By virtue of the doctrine of interjurisdictional immunity, Ss. 26 ARPALAA, while valid, is inapplicable to the extent that it impacts the federal power over aeronautics, which is supported by the federal general power to make laws for the peace, order, and good government of Canada in s. 91 of the Constitution Act, 1867. The federal aeronautics jurisdiction encompasses not only the regulation of the operation of aircraft and airports, but also the power to determine the location of airports and aerodromes. This power is an essential and indivisible part of aeronautics and, as such, lies within the protected core of the federal aeronautics power. Since s. 26 purports to limit where aerodromes can be located, it follows that it trenches on the core of the federal aeronautics power. However, in an era of cooperative, flexible federalism, the application of the doctrine of interjurisdictional immunity requires a significant or serious intrusion on the exercise of the federal power. The test is whether the provincial law impairs the federal exercise of the core competence. Here, in prohibiting the building of aerodromes on designated agricultural land unless prior authorization has been obtained from the Commission, s. 26 may prevent the establishment of new aerodromes or require the demolition of existing ones. The ARPALAA effectively removes the total area of the designated agricultural regions from the territory that Parliament may designate for aeronautical uses. This is NOT an insignificant amount of land, and much of it is strategically located. Although s. 26 does not sterilize Parliament’s power to legislate on aeronautics — the doctrine of paramountcy would permit Parliament to legislatively override provincial zoning legislation for the purpose of establishing aerodromes —, it nevertheless seriously affects the manner in which the power can be exercised. If s. 26 applied, it would force the federal Parliament to choose between accepting that the province can forbid the placement of aerodromes on the one hand, or specifically legislating to override the provincial law on the other hand. This would seriously impair the federal power over aviation, effectively forcing the federal Parliament to adopt a different and more burdensome scheme for establishing aerodromes than it has in fact chosen to do. The doctrine of federal paramountcy would not apply in this case. Paramountcy may flow either from the impossibility of complying with both federal and provincial laws or from the frustration of a federal purpose. Here, there is NO operational conflict, since the federal legislation did not require the construction of an aerodrome and it is possible to comply with both the provincial and federal legislation by demolishing the aerodrome. There is also no evidence establishing that a federal purpose regarding the location of aerodromes is frustrated by the provincial legislation. The federal regulations provide that the Minister responsible may determine that the location of each registered aerodrome is in the public interest, but they do not disclose any federal purpose with respect to the location of aerodromes. Per LeBel J. (dissenting): The power to determine the locations of airports and aerodromes is not engaged here in a way that would be inconsistent with the doctrine of interjurisdictional immunity. The building of a landing strip at a location of a company’s choosing and the administrative registration of an aerodrome cannot be considered acts or rights that fall within the core of the federal aeronautics power. Per Deschamps J. (dissenting): Section 26 of the ARPALAA is constitutionally applicable to aerodromes. The evidence as a whole does not show that the application of the provincial agricultural zoning rules would have the effect of impairing activities that fall within the core of the exclusive federal aeronautics power. The area of the space on which the construction of an aerodrome is or may be authorized is sufficient in relation to the entire territory of Quebec and, what is more, there are major small-scale aviation centres outside the protected agricultural zones. Furthermore, the record contains no evidence that the Commission’s practices have the effect of prohibiting the establishment of aerodromes on all agricultural land in Quebec or of impairing the operation of such facilities. Finally, there is no actual conflict with a federal rule that would render s. 26 ARPALAA inoperative, as the registration of the aerodrome creates no positive right with which the provincial legislation would be incompatible. (e) Rationale of interjurisdictional-immunity Bell 1988 Beets J made an effort to define the boundary between the 2 and the rule that emerged from his formulation is: o IF the prov law would affect the basic, minimum and unassailable core of the federal subject, THEN the II doctrine stipulated that prov law MUST be restricted in its application (read down) to exclude the federal subject. o IF on the other hand, the prov law did NOT affect the core of the federal subject, THEN the pith and substance doctrine stipulated that the prov law validly applied to the federal subject.
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15.9 Interpretation of Constitution (a) Relevance ONCE matter has been identified THEN second stage in JR is to assign matter to one of the “classes of subjects” specified in Constitution
(b) Exclusiveness Each list of classes of subjects in Ss. 92 or Ss. 92 CA 1867 – is exclusive to Parliament OR Legislature to which it is assigned IF either Parl’t OR Leg fail to legislate to the full limit of its power this does NOT have effect of increasing others’ power BUT similar/identical laws may be enacted by BOTH (have double aspect) On the face of it, the descriptions of classes of subjects (or heads of power) appear to give rise to a good deal of duplication The courts have dealt with this by interpreting each head of power as excluding the other In all such cases the courts have narrowed the meaning of the broader class in order to exclude the narrower class
(c) Ancillary Power In US and Australia – federal powers include “ancillary” powers – no list – simply retain a general residuary power of legislation, and so there is NO ancillary clause applicable to the states The pith and substance doctrine enables a law that is classified as “in relation to” a matter within the competence of the enacting body to have incidental/ancillary effects on matters outside the competence of the enacting body Considering incidental/ancillary effects, legislative power is concurrent RATHER THAN exclusive BUT it does NOT seem to be necessary to introduce concept of ancillary power to explain results that can just as easily be regarded as flowing from well-established rules of classification Papp v Papp Laskin J.A.’s “rational, functional connection” test allows EACH enumerated head of power to embrace laws that have some impact on matters entrusted to the other level of gov’t and it provides a flexible standard which gives the enacting body considerable leeway to choose the legislative techniques it deems appropriate, while providing a judicial check on an unjustified usurpation of power. R v Zelensky Laskin C.J. applied Laskin’s rational connection test Multiple Access v McCutcheon SC upheld provision of federal corporation law granting a civil remedy on basis that the provision had a ‘rational, functional connection” with company law CASE LAW AGAINST RULE A.-G. Que v Kellogg’s Company Laskin C.J.’s dissenting opinion acknowledged that there may be an ancillary power AND suggestion that ONLY applies to federal Parl’t is surprising b/c rational connection test in Papp applies with equal force to both federal and provincial laws R v Thomas Fuller Construction SC held that Federal Court Act could NOT confer on Federal Court jurisdiction to determine an issue of provincial law raised by a TP notice issues in proceedings that otherwise raised issues of federal law Affirmed in Regional Municipality of Peel v MacKenzie Need demonstrate that essential to the operation of the legislative scheme STRICTER than Papp General Motors v City National Leasing
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Dickson C.J. attempted to reconcile – “as the seriousness of the encroachment on provincial powers varies, so does the test required to ensure that an appropriate constitutional balance is maintained o For minor encroachments, rational connection test is appropriate o For major encroachment, a stricter test is appropriate
COMMENTARY that this case makes the answer to a simple question TOO complicated, too discretionary, and therefore TOO unpredictable The proper course for the Court is to return to the true path marked out by Nykorak, Papp, Zelensky and Multiple Access. Each head of legislative power, whether federal or provincial, authorizes all provisions that have a rational connection to the exercise of that power. The more liberal test respects the limits imposed by Constitution’s distribution of powers by requiring a rational connection, BUT it still allows considerable leeway to the legislative judgment of both the federal Parliament and the provincial Legislatures
(d) Concurrency Two doctrines: o (i) “double aspect” doctrine, which recognizes that a law may have a double aspect, namely one within Federal and Provincial o (ii) Judge made doctrine that leads to concurrency, is the “pith and substance” doctrine. IF the “pith and substance” of a law comes within the list of legislative body that enacted it, THEN law is valid.
(e) Exhaustiveness The opening words of Ss. 91 give to the federal Parl’t the residuary power “to make laws for the peace, order and good government (POGG) of Canada in relation to ALL matters not coming within the classes of subjects assigned exclusively to the Legislatures of the Provinces (f) Progressive Interpretation The doctrine of progressive interpretation is one of the means by which the CA 1867 has been able to adapt to the changes in Canadian society. What this doctrine stipulates is that the general language used to describe the classes of subjects (or heads of powers) is NOT frozen in the sense in which it would have been understood in 1867 (g) Unwritten Constitutional Principles Manitoba Language Reference [1985]
“In the process of constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada”. In that case, it was “the principle of rule of law” In defiance of a constitutional requirement, to enact laws in English and French, all the laws of Manitoba enacted since 1890 had been enacted in English only. The rule of law required that the Manitoba Legislature must follow the law of the constitution, which in turn required the Court to hold the laws to be invalid. But another aspect of the rule of law called for a community regulated by law, which would be violated if Manitoba were left with a vacuum of laws. The solution to these conflicting aspects of the rule of law was to hold the laws enacted in English to be invalid, but also to hold that the laws were to remain in force for a temporary period stipulated by the Court while the existing laws were translated and re-enacted. By virtue of the unwritten “constitutional guarantee of rule of law” (at 758), the people of Manitoba continued to be governed temporarily by a body of law that had been invalidly enacted and that owed its force solely to the fiat of the Court.
Re Remuneration of Judges [1997] 3 SCR 3 and Mackin v New Brunswick [2002] 1 SCR 405 – “unwritten constitutional principle” of judicial independence. (3 provincial statutes reducing the salaries of PCJs held unconstitutional; provincial statute abolishing supernumerary status for PCJs struck down).
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Secession Reference (1998)
no unilateral right to secession – any secession must respect 4 unwritten principles of the Constitution, those of democracy, federalism, constitutionalism and the protection of minorities. Two of the principles – democracy and federalism – required that, if a province voted to secede, the rest of Canada would come under a legal obligation to negotiate the terms of secession with that province.
Signs of reigning in use of unwritten principles Babcock v Canada [2002] 3 SCR 3
Ss. 39 of the Canada Evidence Act allows the federal govt to withhold cabinet documents from court proceedings to which the documents are relevant. Challengers invoked – rule of law, separation of powers and independence of the judiciary. McLachlin CJ for the unanimous Court said that “the unwritten principles must be balanced against the principle of Parliamentary sovereignty” (at para 55). Rejected challenge to the s 39, holding that unwritten constitutional principles did not invalidate the statute.
British Columbia v Imperial Tobacco [2005] 2 SCR 473
legislation aimed at Tobacco companies for the purpose of recouping from the tobacco companies the healthcare costs incurred by the province for tobacco-related disease – Created new tort, which was retroactive, change to burden of proof, abolished limitation periods, supported by rebuttable presumptions of fact designed to relieve the govt of affirmatively proving important elements of the new tort, denied the Ds access to individual heath care records (to rebut the presumptions), maximum damages would be all present and future health care costs incurred by the province for tobacco-related disease, divided up among each company in accordance with its market share. Held: there was no constitutional objection to laws that singled out an industry for special treatment, laws that were retroactive or laws that conferred special advantages on government. (Charter right to fair trial under s 7 applies only where life, liberty or security of the person is in issue, not simply money)
R v Morgentaler
1993 – 3 SCR 463
Facts SCC decided in 1988 that Criminal Code provisions on abortion because they violated a woman’s right to security of person, but that nonetheless they were a valid exercise of criminal law power (R v Morgentaler, [1988] In January 1989 Morgentaler let it be known he wanted to open an abortion clinic in Halifax In March the NS Legislature changed the Hospitals Act to prohibit certain procedures from being performed outside of hospitals, and denying insurance coverage to anyone who sought such procedures (procedures were unconnected, and included abortion). Heavy penalties for performing abortions outside hospitals Morgentaler performed abortions, and was charged under the Act NS argued the provisions were to prevent privatization of health care delivery Holding Ultra vires. Reasons (Sopinka J) Must first identify the “matter” o Found in the “legal effect,” not so much in the “practical effect” o Legal effect – “how the legislation as a whole affects the rights and liabilities of those subject to its terms” Sources for determining matter o “four corners” of the legislation Fines strict if the purpose is only to protect public health care delivery o Extrinsic sources Invalid Criminal Code provisions Provincial Leg invalid when employs language “virtually indistinguishable” from CCd provisions Provinces cannot stiffen, supplement, or replace criminal law Similarity to Criminal Code provisions shows legislation is designed to serve a criminal purpose
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Background, context Timing of Morgentaler’s clinic opening Hansard debates show that “mischief” most commonly discussed when legislation being debated No prior study of cost-effectiveness or anything like that Held though legislation’s form is intra vires provincial powers, the pith and substance is a prohibition on abortions, which is a criminal matter, and ultra vires. Ratio Colourable legislation – where the form is intra vires but the matter is ultra vires – is ultra vires 5. Paramountcy (Chapter 16)
16.1 Problem of inconsistency
Legal systems need a rule to reconcile conflicts between inconsistent laws. The doctrine of implied repeal (where there are 2 inconsistent/conflicting statutes, the later is deemed to have impliedly repealed the earlier to the extent of the inconsistency) applies in Canada to resolve conflicts b/w laws enacted by the same legislative body 2 statutes of the federal Parl’t OR Ontario Legislature. In Canada, conflicts b/w the statutes of different prov leg is unlikely to occur b/c the leg authority of each province is confined within its own territory. BUT conflict b/w statutes of the federal Parl’t and prov leg are bound to happen as both laws are applicable in the same territory The rule adopted here is the doctrine of ‘federal paramountcy’: o Where there are inconsistent/conflicting federal and provincial laws, it is said the federal law will prevail. This doctrine applies where there is a federal law and a provincial law which are: o (1) valid and o (2) inconsistent.
16.2 Definition of inconsistency
A wide def’n will result in the defeat of provincial laws in fields which are covered by federal law; A narrow def’n on the other hand WILL ALLOW provincial laws to survive so long as they do not ‘expressly contradict’ federal law. The wide def’n is the course of judicial activism in favour of central power; the narrower definition is the course of judicial restraint.
16.3 Express Contradiction (a) Impossibility of dual compliance Occurs when one law expressly contradicts the other. Smith v The Queen (1960). For laws which directly regulate conduct, an express contradiction occurs when it is impossible for a person to obey both laws-‘compliance with one law involves breach of the other Multiple Access v. McCutcheon (1982) The question was whether the insider trading provisions of provincial securities law were in conflict with those of federal corporate law. Held: no as they provided essentially the same remedy for the same conduct. The rules were in harmony. Few egs of impossibility of dual compliance: Gillespie v Gillespie 1973 o 2 spouses separated, court order under federal grounds grants custody of child to wife, while prov law to husband.
M & D Farm v Manitoba Agricultural Credit Corporation – 1999 o Farm granted 120 day stay that provided corporation was not allowed to embark on foreclosure proceedings – period was to be used to settle with creditors. o Under provincial law, the Corporation obtained the right to foreclose BUT waited until the end of the 120 day period to commence proceedings.
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o
HELD that this was in contradiction and that the federal law supremacy applied & thus provincial law rendered inoperative due to paramountcy
(b) Frustration of federal purpose A provincial law would frustrate the purpose of a federal law. Law Society of BC v Mangat Immigration Law Federal law enabled parties to be represented by non-lawyer BC law allowed solely legal representation HELD: purpose required BOTH parties be able to retain counsel who spoke their language, understood their culture and were inexpensive – THIS would be defeated if ONLY lawyers allowed ** Rothmans, Benson & Hedges v. Saskatchewan 2005 o The federal Tobacco Act prohibited promotion of tobacco products except where mentioned in the Act. A person may display at retail, a tobacco product. o The Saskatchewan Tobacco Control Act banned the display of tobacco products in any premises in which persons under 18 were permitted. o SC interpreted a federal permission to display as intended to circumscribe the prohibition on promotion, and not to create a positive entitlement to display. That meant that the retailer could comply with both laws, either by refusing to admit persons under 18 or by not displaying tobacco products. The purpose of the federal law was not frustrated as both purposes of the 2 acts were fulfilled.
FACTS: The respondent company sought a declaration that Ss. 6 of the Saskatchewan Tobacco Control Act is, by virtue of the paramountcy doctrine, inoperative in light of Ss. 30 of the federal Tobacco Act. Section 30 allows retailers to display tobacco and tobacco product-related brand elements and post signs indicating the availability and price of tobacco products, while Ss. 6 bans all advertising, display and promotion of tobacco or tobacco-related products in any premises in which persons under 18 years of age are permitted. The QBD dismissed the company’s application. The Court of Appeal set aside that decision and declared Ss. 6 inoperative on the basis of a practical inconsistency between the two provisions.
SC Held: The appeal should be allowed. The provincial legislation is NOT inoperative by virtue of the paramountcy doctrine.
There is NO inconsistency between Ss. 6 of The Tobacco Control Act and Ss. 30 of the Tobacco Act. o First, a retailer can easily comply with both provisions in one of two ways: by admitting no one under 18 years of age on to the premises, or by not displaying tobacco or tobacco-related products. The provincial legislation simply prohibits what Parl’t has opted not to prohibit in its own legislation and regulations. o Second, Ss. 6 does not frustrate the legislative purpose underlying Ss. 30. Both the general purpose of the Tobacco Act (to address a national public health problem) and the specific purpose of Ss. 30 (to circumscribe the Tobacco Act’s general prohibition on promotion of tobacco products set out in Ss. 19) remain fulfilled. In demarcating through Ss. 30 the scope of the federal legislation’s general prohibition on the promotion of tobacco products, Parl’t did NOT grant retailers a positive entitlement to display such products.
16.4 Negative implication (a) Covering the Field Do lesser kinds of incompatibility suffice to come within the scope of the doctrine of paramountcy? ONLY an express contradiction suffices to invoke the paramountcy doctrine. A provincial law that is supplementary or duplicative of a federal law is not deemed to be inconsistent with federal law. It is clear from case law that the SC does NOT infer an inconsistency between federal and provincial laws based on an imputation that federal law “covers the field” OR carries a “negative implication” forbidding supplementary provincial law in the same field.
Canada rejects the negative implication test under which a federal law may be read as interpreted as covering the field and precluding any prov laws in that field, even if they are not contradictory of the federal law. In
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Schneider v The Queen (1982) the Court held that a provincial Heroin Treatment Act was not inconsistent with the federal Narcotic Control Act. (b)Express extension of paramountcy In principle it is open to the federal Parl’t to extend the doctrine of paramountcy beyond the case of an actual conflict in operation o Ie. Legislating that provincial laws are inapplicable to Indians Hogg’s view that this may be operative STRONGER than Dick v The Queen where dictum that NOT open to Parl’t to make Indian Act paramount over provincial laws
16.5 Overlap and duplication (a) Constitutional significance Duplication is NOT a test of paramountcy THEN there is no point in searching for minor differences between essentially similar laws, which was the approach taken by SC in O’Grady, Smith, Stephens & Mann (b) Double Criminal Liability Double criminal and civil liability are possible. HOWEVER as both federal and provincial decisions are enforced by provincial police and prosecutors and the provincial court system that in which both provincial and federal cases are tried – THUS issue of double jeopardy across jurisdictional boundaries in fact resolved by prosecutorial or judicial discretion (c) Double civil liability Double income taxation and civil remedies have been upheld by SC. Like the issue of double criminal – the issue of double civil liability does NOT need to be resolved by the doctrine of paramountcy
16.6 Effect of inconsistency
Paramountcy doctrine applies ONLY to the extent of the inconsistency (unless the inconsistent parts are inseparably linked up with the consistent parts). It will affect the operation of the prov law so long as the inconsistent federal law is in force. If the federal law is repealed, the prov law will automatically revive without any re-enactment by the prov Leg. Federal Parliament cannot repeal a provincial law. The ONLY satisfactory description of the effect of paramountcy doctrine is that it renders inoperative the inconsistent provincial law
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6. Property and Civil Rights (Chapter 21) ***Chatterjee v Ontario (Attorney General), 2009 SCC 19, [2009] 1 SCR 624 Where there is overlap between two heads of power, it is for the court to identify the DOMINANT FEATURE of the impugned statute. Although there may be incidental intrusion into another head over which the relevant government has no control, incidental intrusions are allowed Is the first test of the concept of relying on civil legal proceedings to tackle crime, of using civil actions and their lighter standard of proof, to recover property linked to crime Organized around Ontario’s Civil Remedies Act, the Supreme Court of Canada was asked whether actions to forfeit the proceeds of unlawful activity exceeded provincial constitutional competence by invading federal jurisdiction over the criminal law. To the relief of Ontario and other provinces, the Supreme Court upheld the constitutional validity of the reliance on forfeiture, on civil actions, to remove property derived from crime. http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=michelle_gallant
21.1 Importance of property and civil rights
Section 92(13) CA 1867 confers upon prov leg the power to make laws in relation to ‘property and civil rights in the province’ MOST important of the provincial heads of power.
21.2 History of Property and Civil Rights
Full & precise description of the entire body of private law which governs the relationships between subject and subject, as opposed to the law which governs the relationships between the subject and the institutions of government The law relating to property, succession, the family, contracts and torts is mainly within provincial jurisdiction under Ss. 92.13
21.3 Civil Liberties
Rights referred to in the CA 1867 comprise primarily proprietary, contractual or tortious rights these rights exist when a legal rule stipulates that in certain circumstances one person is entitled to something from another “Civil rights” does NOT include the fundamental civil liberties of belief and expression
21.4 Local & Private Matters
The provincial “residuary power” in Ss. 92(16) over “all matters of a merely local or private nature in the province” has turned out to be unimportant b/c of the WIDE scope of “property & civil rights in the province”
21.5 Insurance (a) Reasons for regulation Because the terms and conditions of insurance policies are in practice stipulated by the insurer, and not well understood by the insured, gov’ts sought to protect the insured by requiring the inclusion of certain conditions in every policy. B/c the financial strength, probity and permanence of an insurer cannot be judged by the insured, and are essential to the fulfillment of the policy. Gov’ts sought to control entry to, and supervise the performance of the industry by licensing insurers, by requiring a security deposit, by limiting the insurers’ powers of investment and by official inspection of their books.
(b) Provincial Power
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In the leading case Citizens’ Insurance Co v Parsons (1881) upheld an Ontario statute that required that certain conditions be included in every policy of fire insurance entered into in Ontario. Their lordships held that regulation of the terms of contracts came within property and civil rights in the province (s.92(13)).
Citizens Insurance Company v Parsons – P.C. (1881), 7 AC 96 (PC); aff’g. (1880), 4 SCR 215 CB 97 Facts 1876 Ontario enacts legislation that specifies standard conditions that must be part of every fire insurance policy P tries to make a claim on a policy, which the insurer says is invalid because he did not disclose necessary information when purchasing the policy P claims the conditions were void because they did not comply with the legislation Insurer claims legislation is ultra vires per Ss. 91 BNA Act Issue Does the impugned Act fall within the subjects enumerated in Ss. 92 (provincial jurisdiction) If yes, does it also fall within Ss. 91 (federal jurisdiction) Reasons (Sir Montague Smith) While Parl. is given broad powers, the general power should NOT override the particular ones in Ss. 92 Appellant (insurance) claims this is “trade and commerce” (Ss. 91) NOT “property and civil rights” o Held that this is too narrow an interpretation of property and civil rights o Ss. 94 (Parl’t can pass uniform leg. for the common law provinces) speaks of “property and civil rights” in a broad sense (i.e. private law). Also the Quebec Act 1774 o “property and civil rights” MUST be interpreted in a broad sense
Insurers are NOT “traders” in English bankruptcy laws, therefore not within “trade and commerce” “Trade and commerce” cannot be construed as broadly as the appellant would have it Two branches of “trade and commerce” o Federal government has power over interprovincial and foreign trade o “general trade power” – federal government can legislate on questions of general national trade
Holding Act is intra vires. “Property and civil rights” applies broadly, even to contracts concerning property (indemnifying it in this case). Court has narrowed scope of “Trade & Commerce” and “civil & property rights” so as to eliminate the overlapping and make each power exclusive BUT did not define when trade and commerce became sufficiently interprovincial so as to come within the federal power (c) Federal Power There have been many setbacks with regard to federal provisions concerning the insurance industry. The federal gov’t continues to regulate a substantial part of the industry under statutes covering British and foreign companies, federally-incorporated companies, and on a voluntary basis. Provincially incorporated companies. Re Wentworth Insurance case (1969) 5:4 – a federal law applicable to insolvent insurance companies was upheld Winding-Up Act vs. Ontario Insurance Act re: different order of priority HELD: federal law valid – STARTLING departure form 1916-1942 decisions
21.6 Business in general
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The insurance cases establish that regulation of business was ordinarily a matter within property and civil rights in the province. Exceptions which fall within federal jurisdiction include banking, navigation and shipping, inter-provincial or international transportation, communication undertakings and works declared to be for the general advantage of Canada. The gaps in federal power are v. imp and extensive- e.g-trade and commerce power will authorize federal prohibition of the importation of margarine, but not a prohibition of its manufacture or sale. The interest power may be used to control interest rates, but not control other terms of loans. The gaps are covered by the provincial power over property and civil rights. The regulation of process/profits/combinations has traditionally been regarded by the courts, not in terms of its ultimate, often nation-wide objectives, but in terms of its immediate impact upon freedom of contract and property rights. Regulations of professionals and trades typically takes the form of restrictions on entry, coupled with rules of conduct, which often include fee-sitting and administration by a gov’t body. Such regulation is no different for constitutional purposes than that of other industries, and comes within property and civil rights in the province.
21.7 Professions & Trades
Typically take form of restrictions on entry, coupled with rules of conduct, which often include fee-setting, and administration by a governing body
21.8 Labour Relations (a) Provincial Power Regulation over most of the economy is within provincial competence under property and civil rights in the province. Toronto Electric Commissioners v Snider (1925) - AUTHORIT Concerned the validity of a federal attempt to regulate labour relations, Industrial Disputes Investigation Act 1907. This afforded compulsory conciliation procedures for the settlement of industrial disputes in mining, transportation, communication and public service utilities and optional procedures for the settlement of disputes not compulsorily covered. The Privy Council held the Act was unconstitutional. Immediately after the decision the Act was amended to confine its operation to industries which were otherwise within federal legislative authority, and in this more limited form the Act was upheld. The legislation in Snider was concerned with industrial peace-the prevention of strikes and lockouts through compulsory conciliation. Laws imposing labour standards were also held to fall within provincial powers (Labour Conventions). Unemployment Insurance Reference & Oil, Chemical Workers Case (1963) Are companions in their insistence that the modification of the employment relationship is EXCLUSIVELY within property and civil rights, notwithstanding the important federal aspects presented by the relief of nation-wide unemployment and by the funding of federal election campaigns (b) Federal Power Despite the consistent affirmations of provincial powers over labour relations, there is still a substantial deferral presence in the field. Stevedores Reference (1955) Since it has been CLEAR that the federal Parl’t has the power to regulate employment in works, undertakings or businesses within the legislative authority of the federal Parl’t. Required connection with the federal undertaking is a functional/operational one The Court has approached cases on the basis that provincial competence over labour relations is the RULE, and federal competence is the exception
21.9 Marketing (a) Reasons for regulation Reasons for regulating markets may be found in the interests of both producers and consumers (uniform standards of quality, price regulation).
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(b) Federal Power Federal regulation is minor, BUT has been upheld in the trade in grain and oil, even though the regulation extended to purely local transactions. Whether the power will be permitted to expand to the point of enabling the federal Parliament to regulate any market which extends beyond any province remains to be seen, BUT it would be a rational development of trade & commerce power. (c) Provincial Power Contracts of sale and purchase are prima facie matters within Ss. 92(13) and therefore amenable to provincial legislation. Provinces have the power to regulate intra-provincial trade BUT not inter-provincial trade. This distinction is not easy to apply in the context of marketing as a provincial marketing scheme will nearly always have an impact on producers in other provinces. The question is to what extent should a province be permitted to burden interprovincial trade in the course of regulating intraprovincial trade? Shannon v Lower Mainland Dairy Products Board (1938) - Privy Council upheld a provincial scheme for the compulsory marketing of milk through provincial boards. The scheme applied to all milk sold in the province, including milk produced in other provinces. The application of milk produced out of the provinces was upheld as an incident of an essentially intraprovincial scheme. Manitoba Egg Reference SC However struck down a provincial scheme to regulate the marketing of eggs which applied to ALL eggs sold in Manitoba, including eggs produced elsewhere (otherwise scheme would be undermined by imports of an unregulated and cheaper product). Martland J for the majority held that the plan in issue NOT only affects inter-provincial trade in eggs BUT aims at the regulation of such trade. This decision was followed by a federal prov agreement involving all 11 gov’ts that settled a national marketing plan for eggs. (Through the cooperative action of both levels of gov’t, it was hoped to fill the gaps in federal and provincial legislative power). Eggs v potash Central Canada Potash A scheme for prorationing potash production was NOT allowed as price fixing was its central feature. Re Agricultural Products Marketing Act However the egg marketing plan was allowed, and price fixing was a central feature as well. Provinces have less control over their natural ‘resources. CA 1982 by Ss. 52 added Ss. 92A to CA 1867 enlarging prov powers over natural resources (non-renewable). The export of resources from Canada remains outside the provincial legislative power.
21.10 Securities Regulation (a) Provincial Power Provinces have power to regulate the trade in corporate securities. The provinces have regulatory regimes which establish securities commissions, and which provide for the licensing of brokers and the regulation of the markets for corporate securities. It has been held that the province has NO power to confer upon a provincial agency discretionary power over the issue of securities by a federally-incorporated company, b/c the capacity to raise capital is an essential attribute of corporate agency. This does not preclude all prov reg of the issues of securities by fedincorporated companies-the question in each case is whether the degree of provincial control amounts to a denial of an essential attribute of corporate status. Apart from the limited immunity of fed-incorporated companies, the provincial power has been given a broad scope by the courts. (b) Federal Power The federal gov’t has commissioned and published a study of the possibility of federal regulation of the securities industry, including a draft bill BUT at the time of writing it has not been adopted as federal gov’t policy.
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The federal incorporation power authorizes the regulation of the issues of securities by federally incorporated companies, and authorizes some degree of regulation of trading in those securities.
*** Reference Re Securities Act 2011- SC To determine the constitutional validity of legislation from a division of powers perspective, the pith and substance analysis requires the courts to look at the purpose and effects of the law. The inquiry then turns to whether the legislation falls under the head of power said to support it. If the pith and substance of the legislation is classified as falling under a head of power assigned to the adopting level of government, the legislation is valid. When a matter possesses both federal and provincial aspects, the double aspect doctrine may allow for the concurrent application of both federal and provincial legislation. Parliament’s power over the regulation of trade and commerce under Ss. 91(2) of the Constitution Act, 1867 has two branches — the power over interprovincial commerce and the general trade and commerce power. ONLY the general trade and commerce power is invoked by Canada in this reference. This power, while on its face broad, is necessarily circumscribed. It cannot be used in a way that denies the provincial legislatures the power to regulate local matters and industries within their boundaries. Nor can the power of the provinces to regulate property and civil rights within the provinces deprive the federal Parliament of its powers under s. 91(2) to legislate on matters of genuine national importance and scope — matters that transcend the local and concern Canada as a whole. As held in General Motors of Canada Ltd. v. City National Leasing, to fall under the general branch of Ss. 91(2), legislation MUST engage the national interest in a manner that is qualitatively different from provincial concerns. Whether a law is validly adopted under the general trade and commerce power may be ascertained by asking: o o o o
(1) whether the law is part of a general regulatory scheme; (2) whether the scheme is under the oversight of a regulatory agency; (3) whether the legislation is concerned with trade as a whole rather than with a particular industry; (4) whether it is of such a nature that provinces, acting alone or in concert, would be constitutionally incapable of enacting it; and o (5) whether the legislative scheme is such that the failure to include one or more provinces or localities in the scheme would jeopardize its successful operation in other parts of the country. These indicia of validity are NOT exhaustive, nor is it necessary that they be present in every case. Here, the main thrust of the Act is to regulate, on an exclusive basis, all aspects of securities trading in Canada, including the trades and occupations related to securities in each of the provinces. The purpose of the Act is to implement a comprehensive Canadian regime to regulate securities with a view to protect investors, to promote fair, efficient and competitive capital markets and to ensure the integrity and stability of the financial system. Its effects would be to duplicate and displace the existing provincial and territorial securities regimes. Applying the settled case law, the Act, viewed in its entirety, CANNOT be classified as falling within the general trade and commerce power. Its main thrust does NOT address a matter of genuine national importance and scope going to trade as a whole in a way that is distinct and different from provincial concerns. Canada has NOT established that the area of securities has been so transformed that it now falls to be regulated under the federal head of power. The preservation of capital markets to fuel Canada’s economy and maintain Canada’s financial stability is a matter that goes beyond a specific industry and engages trade as a whole. However, the Act is chiefly concerned with the day-to-day regulation of all aspects of contracts for securities within the provinces, including all aspects of public protection and professional competences. These matters remain essentially provincial concerns falling within property and civil rights in the provinces and are not related to trade as a whole. Specific aspects of the Act aimed at addressing matters of genuine national importance and scope going to trade as a whole in a way that is distinct from provincial concerns, including management of systemic risk and national data collection, appear to be related to the general trade and commerce power. With respect to these aspects of the Act, the provinces, acting alone or in concert, lack the constitutional capacity to sustain a viable national scheme. Viewed as a whole, however, the Act is NOT chiefly aimed at genuine federal concerns. It is principally directed at the day-to-day regulation of all aspects of securities and, in this respect, it would not founder if a particular province failed to participate in the federal scheme. In sum, the proposed Act overreaches genuine national concerns. While the economic importance and pervasive character of the securities market MAY, in principle, support federal intervention that is qualitatively different from what the provinces can do, they do NOT justify a wholesale takeover of the regulation of the securities industry which is the ultimate consequence of the proposed federal legislation. A cooperative approach that permits a scheme recognizing the essentially provincial nature of securities regulation while allowing Parl’t to deal with
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genuinely national concerns remains available and is supported by Canadian constitutional principles and by the practice adopted by the federal and provincial governments in other fields of activities.
21.11 Property (a) General Creation of property rights, their transfer and their general characteristics are written property and civil rights in the province. Difficulty has arisen where a province has sought to control the ownership or use of property in order to accomplish a non-proprietary objective which it could not accomplish by more direct means Bedard v Dawson A provincial law prohibited the use of a house as a disorderly house was characterized as property law. (b) Foreign Ownership Can a province control foreign ownership of land? o Morgan: SC held a non-resident of a province CANNOT acquire holdings of real property of more than a specified size except with the permission of the provincial cabinet. Federal Parl’t has also asserted jurisdiction over foreign ownership of property in the Investment Canada Act which provides screening procedures for certain takeovers of Canadian businesses by ‘non-Canadians’, (c) Heritage Property Kitkatla Band v BC SC held that the protection of heritage or cultural property fell under Ss. 91(3)
21.12 Debt Adjustment 21.13 Consumer Protection 21.14 Extraterritorial Competence
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7. Trade and Commerce (Chapter 20)
20.1 Relationship to Property & Civil Rights
Section 91(2) CA 1867 confers upon the federal Parl’t to make laws in relation to ‘the regulation of trade and commerce’. Judicial interpretation has narrowed the scope of the clause. The interpretive problem lay in the accommodation of the federal power over the regulation of trade and commerce (Ss. 91(2)) with the provincial power over property and civil rights in the province’ (Ss. 92(13)). By a process of mutual modification, the courts have narrowed the 2 classes of subjects so as to eliminate the overlapping and make EACH power exclusive.
Citizens’ Insurance Co v Parsons (1881) – P.C. In which the issue was the validity of a prov statute which stipulated that certain conditions were to be included in ALL fire insurance policies entered into in the province. Privy Council held the statute was a valid law in relation to property and civil rights in the province and did NOT come within the federal trade and commerce power. Since Parsons, it has been accepted in general that intraprovincial trade and commerce is a matter within provincial power, under Ss. 92(13) and Ss. 91(2) is confined to interprovincial or international trade and commerce and ‘general trade and commerce’.
20.2 Interprovincial or international trade and commerce (a) In the Privy Council Federal attempts to use the trade and commerce power (TCP) was struck down repeatedly by the Privy Council. Since the abolition of appeals to the Privy Council there has been a resurgence of the TCP. (b) In the Supreme Court of Canada Ontario Farm Products Marketing Reference 1957, Indicated by implication that federal power would extend to SOME transactions which were completed within a province. R v Klassen The Manitoba CoA had to decide whether the Canadian Wheat Board Act could validly apply to a purely local work, a feed mill which processed locally processed wheat and sold it as feed to local farmers. The Act imposed on producers and enforced through elevators and mills, a quota system which was designed to ensure equal access to the interprovincial and export market. It also applied to local processing and sale so that a producer could not obtain an unfair advantage by selling grain in excess of his quota. CA held that the app of the Act to such intraprovincial transactions was valid. It was incidental to the purpose of the Act which was to regulate the interprovincial and export trade in grain. This decision was a striking departure from the course of Privy Council decisions which had consistently decided that the federal regulation under the TCP could NOT embrace wholly interprovincial transactions, even when the main object was to regulate the interprovincial or export trade. Re Agricultural Products Marketing Act – (1978) FACTS: Quota imposed on sale of eggs – imposed on all producers regardless of whether destined for out of province market or local On the face of it SC decision to uphold the federal Act is a major expansion of federal power into local markets HOWEVER the case is unusual and NOT important precedent in that concurring opinions are very general and abstract and hard to relate to actual operation of operation of marketing plan under consideration
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Scheme had been agreed by all 11 eleven governments
Dominion Stores FACTS: Part I did NOT make it compulsory to use grade names for agricultural products marketed within province BUT IF grade names were used in local trade THEN had to use appropriate Part II federal standards HELD: Part I was an unconstitutional attempt to regulate local trade CRITICISM: Part II requires use of federal grade names for interprovincial/international trade – it was a modest intrusion into local trade that had a “rational functional connection” Labatt Breweries v AG Can 1979 Is a case in which the federal TCP was rejected as a support for federal legislation. The Court struck down compositional standards for beer enacted under the federal Food and Drugs Act which had been imposed without regard for the product’s movements across provincial boundaries. The Court also reaffirmed the rule established in insurance cases that the TCP will NOT authorise the regulation of a single trade or industry, even if the industry is dominated by a few large firms which advertise and market their products on a nation-wide basis.
20.3 General Trade & Commerce
Until the SC decision in General Motors v. City National Leasing (1989) the general category of TC had been consistently rejected as a support for federal policies of economic regulation. The constitutionality of the Competition Act had to be resolved in this case, which was a challenge to the validity of the civil remedy that had been introduced in the legislation in 1975. SC held that the Act was a valid exercise of the general TCP.
Canada Standard TM Case (1937) “Canada Standard” HELD: The general TCP would authorize federal standards of production or manufacture for products traded locally, PROVIDED that the federal standards were tied to the voluntary use of a distinctive mark Dominion Stores v The Queen – (1979) “Canada Extra Fancy” HELD: Estey J for the majority fastened on what seems to be a mere difference of machinery, namely, that in the Canada Standard case the mark was formally vested in the Crown, and on this ground he distinguished the Canada Standard case Labatt Breweries v AG Can – (1979) “light beer” HELD: Estey J for the majority referred to the “arrogation” by Parl’t of “common names”, and it is arguable that therein lies an essential difference between Canada Standard vs. Labatt Breweries. In Canada Standard the application of the federal standards depended upon the use of a common description, namely “light beer” – THIS would be difficult for manufacturers to refrain from using as opposed to the Canada Standard case The general trade and commerce head could be used where “affected industry and commerce at large or in a sweeping general sense” COMMENT: Here the FDA was not sweeping/general according to Estey J in that regulations (NOT Act) was drafted on commodity-by-commodity basis. BUT if consider the Act covers most common foods – CANNOT imagine MORE general/sweeping! MacDonald v Vapor Canada Laskin CJ implied that result different had the Act been part of a “regulatory scheme” administered by a “federally-appointed agency” COMMENT: previous PC decisions that were part of a regulatory scheme and administered by a federallyappointed agency were struck down THUS no legal basis for opinion! *** General Motors v City National Leasing – (1989) Dickson CJ applied the Vapor test which consisted of 3 elements: o (1) the presence of a ‘general regulatory scheme’; o (2) the ‘oversight of a regulatory agency’; and o (3) a concern ‘with trade as a whole rather than with a particular industry’.
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Dickson J added 2 more to this: o (4) ‘ the legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enhancing’; and o (5) ‘the failure to include one or more provinces or localities in a legislative scheme in other parts of the country’. In the case of the Act all 5 were present. The general branch of TCP authorises the regulation of intraprovincial trade. The allegations that gave rise to the litigation concerned price discrimination in the financing of the purchase of vehicles by companies that lease fleets of automobiles and trucks. These purchases and the associated finance agreements were transactions that individually took place within a single province. Those facts gave rise to an argument that the federal legislation should be read down to exclude such intraprovincial activity, which could be left to provincial law. Dickson CJ’s answer was a reference back to the provincial inability test, captured in elements 4 and 5 of his def’n of general TC: o ‘Competition CANNOT be successfully regulated by federal legislation which is restricted to interprovincial trade. The conclusion was that Parl’t has the constitutional power to regulate intraprovincial aspects of competition. CA 1867 confers of Parliament authority to legislate in relation to IP rights, NOT trademarks those are covered under TMA. General Motors of Canada v City National Leasing
Facts Ss. 31(1) of the Combines Investigation Act creates a civil cause of action for infringement of the Act CNL (a truck/car fleet leasing company) alleges GM gave “interest rate support” to its competitors, in contravention of the Act Issue Is the Act intra vires Ss. 91(2)? Though creating civil causes of action is ultra vires Parl’ts power (falling under property and civil rights), is Ss. 31(1) “integrated with the act in such a way” that it is intra vires? Holding Intra vires Reasons (Dickson CJC) Because Ss. 31(1) is being challenged (NOT the whole Act), MUST first test the validity of the ancillary doctrine. Three part test 1. Does the particular provision violate a provincial jurisdiction? 2. If yes, is the entire Act valid (see test below) 3. If yes, is the impugned provision sufficiently integrated into the Act so as to make it necessarily incidental?
To answer step 2, MUST see if the legislation in general is valid. Trade and commerce has 2 branches per Parsons – interprovincial/international, and general regulation Test for validity under the second branch of Ss. 91(2) (general regulation of trade)(first 3 from Laskin CJC in MacDonald v Vapor Canada [1977] 2 SCR 134, second two from Dickson J’s concurrence in AG Can v Canadian National Transportation [1983] 2 SCR 206 at CB 400) 1. The impugned legislation must be part of a general regulatory scheme 2. Scheme must be monitored by the continuing oversight of a regulatory agency 3. Must be concerned with trade as a whole rather than a particular industry 4. Provinces constitutionally incapable of enacting similar legislation (jointly or severally) 5. Failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country
Despite the test, the approach must be case-by-case, as suggested in Parsons Instant clause encroaches on provincial powers, BUT it is incidental
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Also passes all steps of the test “competition CANNOT be effectively regulated UNLESS it is regulated nationally” (CB 404)
Ratio Establishes validity test under “general regulation” branch of Ss. 91(2) IMPORTANT CASE! TEST FOR TRADE AND COMMERCE POWER!
The Court comes up with a two-step test in this case: Step 1: does the provision intrude into provincial powers? A) if so, to what extent? – from “encroaches marginally” to “highly intrusive.” In this case it is found to be a minimal encroachment. Step 2: Is the overall Act valid? In this case it is valid under feds criminal power (anticompetitive practices) (A) IF so, THEN is the provision at issue sufficiently integrated into the legislation from “functional relationship” to “intimate nd connection.” In cases under the 2 branch of Ss. 91(2) this will normally involve finding the presence of a regulatory scheme. IF the scheme is not valid that is the end of the inquiry. *IF the scheme of regulation is declared valid, the court MUST THEN determine whether the impugned provision is sufficiently integrated with the scheme that it can be upheld by virtue of that relationship. This requires considering the seriousness of the encroachment on provincial powers, in order to decide on the proper standard for such a relationship. IF the provision passes this integration test, it is intra vires Parl’t as an exercise of the general TCP. IF the provision is NOT sufficiently integrated into the scheme of regulation, it cannot be sustained under the second branch of Ss. 91(2)
20.4 Specific Topics Specific topics call under “Property & Civil Rights” as legislative power is for the most part provincial.
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8. Peace, Order and Good Government (Chapter 17) 17.1 Residuary nature of power Ss. 91 CA 1867 confers on federal Parl’t the power ‘to make laws for the peace, order & good gov’t (POGG) of Canada in rel’t to ALL matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces’ o It is CLEAR from this language that ANY matter which does NOT come within a provincial head of power MUST be within the power of the fed Parl’t At the hands of the PC, Ss. 92(13) became a residuary power in itself, and one which was MUCH more important than the federal POGG. Argued against thesis that federal powers specifically enumerated are mere examples of POGG. o Countered by Hogg in that these specific, and otherwise would more likely fall under legislative head. POGG power has been the trunk from which 3 branches of legislative power have grown: (1) the gap branch (2) the nat’l concern branch (3) the emergency branch.
17.2 The gap branch
One of the offices of the POGG power is to fill gaps in the scheme of distribution of powers. One gap exists in the provision of incorporation of companies. CA 1867 Ss. 92(11) empowers prov leg to make laws in rel’t to this BUT there is no equivalent enumerated federal power of incorporation. Courts have held that the power to incorporate companies with objects other than provincial MUST fall within the federal POGG power because of its residuary nature (Parsons). Ss. 132 CA1867 is silent about performing the obligations of Canada arising under treaties entered into by Canada in its own right as an international person.
Radio Reference 1932 Privy Council Held POG was filling the gap as it was ‘NOT mentioned explicitly in either Ss. 91 or Ss. 92’. (Later rejected by Lord Atkin in Labour Conventions Case (1937) BUT may be coming back into favour). In cases such as ‘federal incorporation’; treaties; ‘official languages’; and ‘offshore resources’, which don’t fall under any recognised head/class, the constitution recognises certain topics as being classes of subjects for distribution of powers purposes, but fails to deal completely with each topic. The POGG language completes the incomplete assignment of power. The gap branch of POGG covers these limited and unusual cases where the application of POGG power is almost logically required.
17.3 The national concerns branch (a) History of national concern Canada Temperance Repudiated the line of cases that asserted that ONLY an emergency could serve as the basis for an exercise of the POGG power. It established that there was a national concern branch of POGG as well as an emergency branch. The test, set out is whether the matter of the legislation ‘goes beyond local or provincial concern or interests and MUST from its inherent nature be the concern of the Dominion as a whole’. IF this test is satisfied THEN the matter comes within POGG in its nat’l concern branch. The national concern branch has been recognised in many cases since 1946 and has provided the sole basis for the decision in 3 cases in SC:
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Johannesson v West St Paul (1952) in which the Courts held that aeronautics satisfied the nat’l concern test. Munro v National Capital Commission (1966) in which the Court held that the nat’l capital region (area around Ottawa straddling Ontario and Quebec) satisfied the nat’l concern test. R. v. Crown Zellerbach (1988) in which the Court held that marine pollution satisfied the national concern test. The federal Ocean Dumping Control Act which prohibited dumping ‘at sea’ was upheld in its application to marine waters within the boundaries of BC. Held: marine pollution, b/c of its predominantly extra-provincial as well as int’l character and implications is CLEARLY a matter of concern to Canada as a whole. Ontario Hydro v Ontario (1993) – Atomic Energy Control Act – With respect to the nat’l concern branch of POGG, La Forest J for the majority said that “the production, use and application of atomic energy constitute a matter of nat’l concern” b/c “it is predominantly extra-provincial and int’l in character and implications”. Cumulative effect of cases is to establish firmly the nat’l concern branch of POGG
(b) Definition of nat’l concern When does the subject matter of leg’n become ‘the concern of the Dominion as a whole’ so as to satisfy the national concern test? When it is of import/significance to ALL parts of Canada-adding a geographic dimension. There is NO constitutional requirement of uniformity- it is the provinces choice whether they want it or not. However it is sometimes essential in the sense that the problem ‘is BEYOND the power of the provinces to deal with’. This is the case where the failure of one province to act would injure the residents of the other (cooperating) provinces. In Crown Zellerbach, the court relied on the provincial inability test as a reason for finding that marine pollution was a matter of national concern. “it is b/c of the interrelatedness of the intraprovincial and extra-provincial aspects of the matter that it requires a uniform legislative treatment” The most imp element of nat’l concern is a need for one nat’l law which cannot realistically be satisfied by cooperative provincial action b/c the failure of one province to cooperate would carry with it adverse consequences of the residents of the other provinces. (c) Distinctness Anti-Inflation Reference 1976 (discussed below) In order for a matter to qualify under this branch, it MUST be distinct SC upheld federal wage and price controls under the emergency branch of POGG power. Beetz’s J opinion was that inflation was TOO broad a topic to qualify as a matter coming within a nat’l concern branch MUST have degree of unity that makes it indivisible, an identity which makes it distinct from provincial matters and a sufficient consistence to retain the bounds of form. ***Crown Zellerbach Requirement of distinctness divided SC La Forest J dissented saying marine waters intermingled with fresh waters and were affected by coastal activity and by deposits from the air-thus the power to regulate marine pollution intruded TOO deeply into industrial and municipal activity, resource development, recreation and other matters within provincial jurisdiction. The majority held that it DID have ascertainable and reasonable limits, in so far as its impact on provincial jurisdiction is concerned.’
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R v Crown Zellerbach Canada Facts CZ moved some wood waste from the bottom of an ocean inlet near the shore, to a deeper part of the inlet some metres seaward. Though salt water, the inlet is entirely within provincial territorial powers Federal government prosecutes under the Ocean Dumping Control Act which prohibits dumping in marine waters to prevent harm to the marine environment Issue Can the federal government “control the dumping in provincial waters of substances that are not shown to have a pollutant effect in extra-provincial waters”? Holding Yes Reasons (LeDain J) To fall under the “national concern” branch of POGG, the issue must pass a test 1. Must be distinct from the emergency branch of POGG (emergency power has a time limit) 2. Applies to matters that are new since Confederation, or things that have changed in nature to move from provincial concern to national. 3. Must have “singleness, distinctiveness and indivisibility” that clearly distinguishes it from provincial concerns 4. Are one or many provinces unable to regulate the matter sufficiently to prevent extra-provincial consequences? Impossibility to delineate visually the boundary between “territorial sea” and “internal marine waters” gives marine pollution a “singleness, distinctiveness and indivisibility” Marine pollution is predominantly extra-provincial and international in character and implications Because territorial waters fall within federal jurisdiction, the provinces are incapable of legislating on the matter. In order for a matter to fall within POGG power, it “must have ascertainable and reasonable limits, in so far as its impact on provincial jurisdiction is concerned.” (from Re Anti-Inflation Act) o “Marine pollution” is sufficiently bounded to satisfy this concern Dissent (LaForest J) Federal government has power under fishery regulation to prohibit dumping substances wherever they might harm fish – this is not the case here “To allocate the broad subject matter of environmental control to the federal government under its general power would effectively gut provincial legislative jurisdiction” because “environmental control” is allencompassing, since consequences of actions are environmentally so broad The line between salt and fresh water cannot be clearly delineated, so the subject matter fails part 3 of the test. Impugned provision “seeks to deal with activities that cannot be demonstrated either to pollute or to have a reasonable potential of polluting the ocean.” Ratio To be valid under national concern branch of POGG, subject must demonstrate a “singleness, distinctiveness and indivisibility”
(d) Newness The Queen v Hauser – 1979 a. Federal Narcotic Control Act was a valid exercise of the POGG power b. Analogy form Russell dealing with liquor ALTHOUGH Russell criticized as a special case
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c.
The Crown Zellerbach case used ‘new’ in the sense of arising for consideration for the first time: a new matter would therefore be one that the courts have yet to allocate either a provincial or a federal head of power COMMENT: Conclude that “newness” is irrelevant and unhelpful a. Lysyk comments that “newness, or lack of newness, of the matter ought to be an entirely neutral factor in the process of determining the content of the federal residuary power’
17.4 The emergency branch (a) The non-emergency cases The emergency test first emerged in the Board of Commerce case where Lord Haldane said highly exceptional or abnormal circumstances would be required to justify the invocation of POGG-war, famine provided as examples Insurance Reference confirmed that POGG could not be used to regulate a particular industry merely b/c the industry is nation-wide and imp to the national economy. However the Privy Council DENIED federal power in many cases during the Haldane period. (b) War There were a few cases where the emergency test was satisfied in war related cases, including federal price controlling powers. In a sufficiently great emergency such as that arising out of war, the POGG power would authorize laws which in normal times would be competent only to the provinces. ONLY supports temporary measures. (c) Apprehended Insurrection War Time Measures Act used ONCE aside from two WW. Separatist movement in Quebec – PM Trudeau responded by bringing in War Time Measures Act - to make Public Regulations Order – gave police new powers of arrest, search, seizure and detention From trial evident that NEVER any chance of insurrection as it was a small group BUT constitutionality of the measure NEVER reviewed by the courts (d) Inflation *** Anti-Inflation Reference 1976 The MOST recent application of this doctrine The federal Anti-Inflation Act 1975 was upheld as an emergency measure. The Act controlled increases in wages, fees, profits and dividends. After 6 months of its existence, the fed gov’t referred the Act to SC for a decision as to its constitutionality. Held: Act was valid as an exercise of fed. P’s emergency power. (Period of double digit inflation and high # of unemployment in Canada). HELD: All that the Court needs to do is to find a “rational basis” for finding an emergency Burden of proof rest on those challenging the legislation!
COMMENT: That preamble of Act did NOT refer to state of emergency and conclusion that POGG relied on W/O need to show emergency In a constitutional case where the validity of legislation depends upon findings concerning the social or economic condition of the country, it is obviously impossible for the Court to make definitive findings.
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Reference Re Anti-Inflation Act - 1976 Facts Parl’t proposed legislation to deal w/ stagflation that included, in the name of controlling inflation, wage and price controls Gov’t justified it under the emergency powers branch of POGG Statute preamble used strong language BUT NOT expressly stating it was an “emergency” Holding Intra vires Reasons (Laskin CJC) IF legislation is sustained under the emergency POGG it need NOT be justified under broader grounds Preamble gives sufficiently clear indication the gov’t sees the matter as emergency, not explicitly said Court WILL defer to Parl’ts determination that there is an emergency, as long as that determination is made on a rational basis Enumerated heads of power can act as springboards for POGG powers Emergency POGG powers are VERY broad, and can ONLY be enacted for a limited period of time Dissent (Beetz J) Inflation is too broad field, can render provincial power inoperative Characterization of legislation must look beyond the title, into the effects and the scale of effects Pith and substance is property and civil rights As an aggregate of several subjects, it lacks specificity, and should be viewed under the heads of power of the separate parts Because of the sweeping powers given under emergency powers, Parl’t MUST be explicit in signaling its determination of an emergency
(e) Temporary Character of law One important limitation on the federal emergency power it will support ONLY temporary measures NO permanent measure has ever been upheld under the emergency power
17.5 Relationship b/w national concern and emergency
The POGG power performs 2 separate functions in the Constitution: (1) It gives to the federal P permanent jurisdiction over distinct subject matters which do NOT fall under Ss. 92 and which by nature are of nat’l concern (aeronautics and the national capital region). (2) Gives fed P temporary jurisdiction over ALL subject matters dealing w/ emergencies
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9. Criminal Law (Chapter 18) ***Reference re Firearms Act (Can.), [2000] 1 SCR 783 Reference Re Firearms Act Facts Firearms Act (SC 1995, c 39) amended existing Criminal Code provisions regarding firearms, created a licensing system for possession of firearms, and created a national regulation system for firearms (incl. ‘ordinary firearms’ like rifles and shotguns. Alberta challenged Parliament’s ability to pass the legislation in a reference to the Alberta Court of Appeal o Argues scheme is regulatory because of the complexity of the legislation, and the discretion given to the chief firearms officer o Claims it is indistinguishable from provincial regulation of cars and land title Holding Intra vires Reasons Law has criminal law purpose: guns pose a risk to society, and the law is limited to restrictions directed at safety purposes Criminal form (prohibition and penalty): s 112 prohibits possession without registration, and s 139 amends the Criminal Code to prohibit possession of a firearm without a license and registration certificate. The prohibitions are backed by a penalty outlined in s 115 of the Act Regulatory nature (response to dissent in Hydro Quebec – confusion in the law) o Complexity of Act does not detract from criminal nature (ex. Food and Drugs Act) o No “undue discretion” granted to the agency o Offences are not defined by administrative body (avoiding dissent in Hydro Quebec) – clearly stated in the Code o Enforcement of offences is not at the discretion of the agency Distinguished from provincial regulation because firearms are not regulated as property, but as dangerous weapons, and firearms are more likely used in violent crime, not cars Holding will not upset federal-provincial balance of power: “the question is not whether such a balance is necessary, but whether the 1995 gun control law upsets that balance” o Act does not hinder provinces’ ability to regulate property and civil rights aspects of guns o does not precipitate federal entry into new area – guns were already federally regulated Ratio Administrative aspects do not preclude criminal form or purpose (key to consider administrative discretion). Criminal law cannot hinder provinces’ right to legislate on s 92 heads of power.
18.1 Distribution of Powers
Constitution Act, 1867, Ss. 91(27) - confers on the federal Parl’t power to make criminal laws. 1. Division of powers (a) Enforced by provinces under Ss. 92(14) (b) Rules of procedure and evidence are federal Ss. 91(27) (c) Ss. 92(15) gives provinces power to have penal sanctions for ANY matter coming within their classes
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Provincial Secretary of PEI v Egan (1941) Upheld suspension of driver’s license for anyone who was convicted under fed crim code of driving impaired SC held provincial law was in relation to regulation of highway traffic
18.2 Definition of Criminal Law
Definition- A criminal law MUST have a valid criminal law public purpose (Margarine) backed by a prohibition and a penalty (P.A.T.A. Case). Criminal Purposes - Prevention of harm to other human beings. Protection of the environment, protection to the cruelty of animals, various forms of economic regulation have been upheld criminal law. Not Federal Crim (a) Food standards: ***Margarine Reference (1951) struck down law banning margarine sale on the basis that the purpose of legislation was an economic one protecting the dairy industry – property and civil rights in province (i) IF “injurious to health” then no doubt would be a criminal public purpose –and food standards could be upheld (b) False labelling - Labatt Breweries v A.G. Can (1971) – NO basis for nat’l food standards (light beer) -can’t be justified under crim (no relation to health with light beer), commerce, POGG – precludes national regime of compositional standards for food (c) Driver’s license - Boggs v. the Queen (1981)- fed crim law - driving w/ suspended state drivers’ license – struck down law b/c could come from failure to pay provincial taxes (d) Civil remedy – MacDonald v. Vapor- section 7(e) of TM Act prohibited business practices contrary to honest industrial usage, authorized to grant civil relief for breach of this section – property and civil rights the Act did NOT provide a criminal sanctions for breach of Ss. 7(e) - for majority this provision described as essentially an extension of tortious liability THEREFORE within property and civil rights in the province (i) Vapor emphasis that Ss. 7(e) was a detached provision and NOT part of a broader regulatory scheme 1. Dictum that civil remedy COULD be associated with patent/copyright laws, and federal patent and copyright (ii) Papp v. Papp - pith and substance is divorce, custody (under provincial jurix) is incidental. Custody of children matter within property and civil rights 1. whether there is “rational, functional connection between what is admittedly good and what is challenged.” (not criminal issue) 2. Functional Connection Test (iii) R. v. Zelensky (1978)- criminal code authorized court to order accused to pay victim compensation – enforced by victim as civil judgment 1. Power to award compensation had 3 civil characteristics: a. (i) order was to be made, NOT at request of prosecutor or at initiative of court BUT only on application of victim b. (ii) amount of compensation was to be related NOT to degree of blameworthiness of accused BUT to value of loss; c. (iii) order to be enforced, NOT by state as a fine would be, BUT by the victim as if it were a civil judgment 2. Laskin C.J. emphasized the ‘”criminal” characteristics of the provision 3. Absence of procedures (discovery and production of documents) did NOT make the power to award unconstitutional BUT it DID call for restraint in its exercise (e) Competition Act- Since economic competition is important and its difficult for provinces to regulate anticompetitive practices it has been agreed it has to be federal to be effective under trade/commerce power, (civil remedies allowed to private parties could not be supported under crim power)- - jurix of Competition Tribunal (w/remedies of blocking mergers, requiring divestitute, other civil stuff) not supported by crim, most of act not supported under crim, (f) Sunday Observance Law/Religion – Edwards Books Law upheld as for the secular purpose of providing a uniform day of rest that is NOT for religious purposes (g) Criminal Law and regulatory authority
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(i)
Competition and insurance cases encourage the view that the criminal law power will NOT sustain a regulatory scheme which relies upon more sophisticated tools than a simple prohibition and a penalty (ii) Nova Scotia Board of Censors v McNeil – SC of Canada - 5:4 – censorship of films was NOT criminal as it is regulation of industry within the province (property & civil rights) (iii) R v Futney challenge mounted against Criminal Code provisions respecting lotteries – which were prohibited BUT Code made exemption for organisations licensed by the Lieutenant Governor in Council of a Province 1. HELD: The decriminalization of lotteries licensed under prescribed conditions is NOT colourable – that licensing provisions viewed as constituting a definition of crime, defining the reach of the offence; and held that it was a constitutionally permissive exercise of the criminal law power, reducing the area subject to criminal law prohibition where certain conditions exist 2. Colourability: The more elaborate the regulatory scheme , the more likely it is that the Court will classify the dispensation or exemption as being regulatory rather than criminal
2.
Fed Crim (a) Illicit drugs (i) R. v. Malmo Levine- non medical use of drugs such as marihuana, cocaine and heroin is proscribed -upheld as a criminal law, even though no harm to others, harm can be moral. (ii) Schineider v The Queen (1982) the SCC upheld the BC Heroin Treatment Act- compressive apprehension, assessment and treatment of drugs addicts. Was provincial Ss. 92(16). NOT criminal because detention was NOT for punishment. (b) Tobacco- RJR-MacDonald v Canada ( 1995)- the SCC held the power to prohibit the use of tobacco on account of its harmful effects on health also encompassed the power to take the lesser step of prohibiting the advertising of tobacco products even though legal, within crim power. Protection of public from dangerous product. (i) Criminal purpose may be pursued by INDIRECT means (c) Environmental protection – R v Hydro-Quebec (1997)-SCC agreed that the protection of the environment was a public purpose that would support a federal law under the criminal law power and the Environmental Protection Act was covered. (i) Upheld as criminal because administrative procedure for assessing the toxicity of substances culminated in a prohibition enforced by a penal sanction, the scheme was sufficiently prohibitory (ii) Upheld that criminal-law power authorizes COMPLEX legislation (akin to regulatory) (d) Abortion –The CCC used to prohibit abortions. In Morgentaler v The Queen- the validity of the prohibition was challenged on the basis that the safety of modern techniques of abortion made prohibition inappropriate as a protection for the health of the pregnant women. –therefore prohibition was NOT authorized by the criminal law power BUT crim power ok to protect state interest in fetus (e) Sunday Observance Law/Religion- In R v Big M Drug Mart (1985)- the SCC confirmed that the Lord’s Day act was a valid exercise of the criminal law power, because it pursued the religious purpose of preserving the sanctity of the Christian Sabbath because it was intended to safe guard morality (BUT this same religious purpose that was used to breathe life into the Act under criminal law was also the kiss of death under Charter). (f) Gun Control - In 1995, the federal Parl’t amended the CC provisions by enacting the Firearms Act which expanded the existing rules by requiring all guns to be registered and all gun owners to be licensed. (i) Alberta appealed this act and the SCC held that this was a valid exercise of criminal law power. The purpose was to restrict access to inherently dangerous things. History had revealed violent crimes, domestic violence, suicides, and accidents. (ii) The court held it was NOT merely regulatory because if provisions were enforced by the criminal law means of a prohibition and penalty, because the Act prohibited possession of a gun w/o a license and registration certificate, penalties for breach of prohibition. 1. Guns were property BUT incidental to main purpose of public safety – emphasis on public safety distinguished the Act from provincial property registration schemes (g) Prevention of Crime (in general)
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(i)
The Criminal Code includes elaborate regime of assessment, treatment and disposition to deal with accused persons who suffer from mental disorder (ii) “Not criminally responsible” – NCR offenders not criminally responsible on account of mental disorder, despite fact NOT convicted of crime – criminal law EXTENDS to NCR’s who present significant threat to society (h) Prevention of Crime (Young Offenders) (i) Juvenile Delinquents Act upheld under criminal law power DESPITE express stipulation that NOT treated as “criminals” (ii) NOW referred to as Young Offenders Act upheld under the preventative aspect of the criminal law power to divert from traditional criminal sanctions
18.13 Provincial Powers to enact Penal Laws
Ss. 92.15 – provincial Legislatures have power to impose “punishment by fine, penalty or imprisonment” for purpose of enforcing otherwise valid provincial laws Bedard v Dawson – SC of Canada upheld provincial law authorizing the closing of “disorderly houses” o Held to be in relation to the USE of property, and at most as aimed at suppressing conditions likely to cause crime RATHER THAN at punishment of crime
Margarine Reference [1949] *Test for things that constitute a federal offence. Third requirement added, there NEEDS to be a “criminal public purpose” A federal law that made it an offence to buy/sell/manufacture/cross provincial lines/import/export margarine. Margarine was actually a trade and commerce case. NO valid criminal law purpose found, no criminal purpose to the Act. In obiter S.C.C. stated authority of criminal law power (*obiter has assumed the status of law) Take a look at a prohibited activity (murder, robbery) and ask: (1) Was this act enacted by Parliament having regard to the injurious effects of that act upon the public were it not prohibited? Was it enacted to achieve a public purpose? (2) Was that public purpose one of the following 5 things? 1. Peace 2. Order 3. Health 4. Morality 5. Security * Not an exhaustive list. Is the answer to (1) Yes, and to any of the 5 listed in (2) is YES, THEN it is a criminal law. Definition of Crime Usually includes: (1) prohibition (2) penalty (3) criminal public purpose Look at the public purpose—is the law directed at peace, order, security, health, morality? These things constitute a federal offence. Reference re Validity of Section 5(A) of the Dairy Industry Act (Margarine Reference) – 1949 Facts Federal Dairy Industry Act makes it illegal to import any margarine made with any fat OTHER THAN milk or cream Provides sanctions Parliament claims it is criminal legislation Holding Ultra vires (Upheld by JCPC) Reasons (Rand J) Criminal laws MUST specify a prohibition and a penalty (Proprietary Articles Trade Association v Canada (A-G), [1931] 2 DLR 1) Must identify the evil intended for prohibition; may be social, economic, or political
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o o o o
Criminal legislation must have “a public purpose which can support it as being in relation to criminal law” All actions might be viewed as criminal law IF Parl’t forbids them, BUT this is TOO broad a def’t to satisfy distribution of legislative powers in Canada. THIS legislation is primarily to protect the dairy industry, NOT a criminal purpose, and as such touches more on property and civil rights, and it relates to a single industry. Colourable purpose – usurp jurisdiction from the provinces.
Ratio Criminal law MUST have a prohibition and a penalty, and a “public purpose, which can support it as being in relation to criminal law”. Cannot be a colourable attempt to encroach on provincial jurisdiction.
Reference re Assisted Human Reproduction Act, 2010 Facts Provisions relating to the Federal Act Arguments Canada – purpose of Act is to prohibit practices that would undercut moral values Quebec – purpose to regulate reproductive medicine and research Issues
Is the Act properly characterized as legislation to curtail practices that may contravene morality?
Holding Majority of the Act held to be Ultra vires Court was split 4-4-1 Reasons (McLachlin) – Constitutionally Valid 1(a) Purpose: To Determine which characterization is correct, one MUST consider the purpose and effect of legislative scheme Text of the Act suggest that its dominant purpose is to prohibit inappropriate practices, RATHER THAN to promote beneficial ones o Dominant THRUST of legislation is prohibitory Criminal law is concerned with prohibiting undesirable conduct, and CANNOT extend to promoting the beneficial aspects of assisted reproduction o The fact that the Baird Commission (extrinsic evidence) may have referred to positive aspects of assisted reproduction technology in its report does NOT establish that these benefits were the focus of Parliament’s efforts. The Act employs a penal and regulatory form – BUT Parliament may validly employ regulations as part of a criminal law target [precedents in Re Firearm, Re Quebec-Hydro] o What matters is if the dominant purpose is criminal The Act has one target – it targets conduct that Parl’t has found to be reprehensible, and in doing so it incidentally permits beneficial practices through regulations – BUT that does NOT make it unconstitutional
1(b) Effect of legislation: Doctrine of pith and substance permits either level of government to enact laws that have “substantial impact on matters outside its jurisdiction” – issue in such cases is to determine the dominant effect of the law The dominant effect of the Act is to prohibit a number of practices which Parliament considers immoral and/or which it considers a risk to health and security
2. Does the Matter fall under Head of Power (Criminal Power in Ss. 91 (27)) o Ancillary Powers Doctrine – holds that legislative provisions which, in pith and substance, fall outside the jurisdiction of the government that enacted them, may be upheld on the basis of their connection to a valid legislative scheme
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o
o
Court has developed a rational, functional test to describe the requirement connection, with the caveat that a test of necessity will apply where the encroachment on the jurisdiction of the other level of government is substantial The more an ancillary provision intrudes on the competency of the other level of government, the higher the threshold for upholding it on the basis of the ancillary powers doctrine Statutory scheme, viewed as whole, is valid exercise of federal power over criminal law – dominant purpose and effect of legislative scheme is to prohibit practices that would undercut moral values, product public health evils, and threaten the security of donors.
Reasons (LeBel) – Constitutionally Invalid Applies the necessarily incidental analysis – began by looking at the pith and substance of the impugned provisions, RATHER than the Act in its entirety Relied on the Baird Report The impugned provisions have a direct impact on the relationship between physicians and patients, donors, etc. – Parliament is trying to regulate things that fall under prov (Ss. 92(7)(13)) Found provisions are NOT supported under criminal law– falls under provincial jurisdiction -
Ratio In determining purpose of legislation – Parliament can look at extrinsic evidence 2 steps in determining whether a law is valid: Characterization and Classification: 1. Dominant “matter” or “pith and substance” of the law MUST be determined 2. Does it fall under a head of power assigned to the enacting body
RJR MacDonald v Canada [1981] 1) Facts: Tobacco Protection Act, Federal law restricted advertising of tobacco products in certain publications, prohibited the use of tobacco being advertised in sporting and cultural events. Jazz fest etc. Purpose of Tobacco Products Act attacked by tobacco companies on basis of it being in the domain of the provinces. 2) Decision: Legislation upheld (struck out the provisions which prevented advertising and unattributed health warnings) “Health” is one of the ordinary ends of the criminal law and that the criminal law power may be validly used to safeguard the public. So the court is NOT going to assign health exclusively to provinces or feds (just like environment). Court finds that feds can legislate in areas of “public health evil” i.e. cigarettes, smoking etc.... Feds thus have the power to protect Canadians’ health. Through a pith and substance analysis the Court finds NO colourability. They find no ulterior motives on the part of the feds with respect to the legislation. *Criminal laws can have regulatory frameworks. The regulatory aspects of the law do not take away from the criminality of the law. DISSENT: A different standard of criminality? Agree with the health law concerns and that the warning labels are valid. - Disagree with prohibitions on advertising. - Says that what is criminal “MUST pose a significant, grave, and serious risk of harm to public health, morality, safety or security before it can fall within the purview of criminal law power.” Dissent doesn’t think that advertising about cigarettes met this threshold. - “Lesser threats… do not fall within the criminal law” - “Act too far removed from the injurious or undesirable effects of tobacco use” - In determining what is criminal, the dissent did not seem to have the feeling that advertising was criminal. Note that in the U.S. tobacco advertising is legal. * They seem to be passing judgment on the wisdom of the law rather than the division of powers issue.
R v Hydro-Quebec – [1977]
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Good example of Constitutional Drafting as in someone has written this anticipating a likely division of powers challenge. I.e. “national concern,” “not contained within geographic boundaries…” All suggest that the legislation is trying to come under national concern branch of POGG. - MAJORITY: Upheld (5-4) cite Oldman River (where environment falls under both federal and provincial power). They also state that criminal law is plenary in nature. Court on environmental issues and the federal criminal law power – that protection of the environment could be considered a criminal matter because it is an important public matter. The purpose of the criminal law is to protect our fundamental values so environmental protection could fall under criminal power. LaForrest - Distinction made between POGG and federal criminal law power: POGG gives power exclusively to the feds, whereas there can be some sharing between the feds and provinces with regard to the environment under criminal law power (allows some scope for provincial action in this regard). DISSENT: (Lamer and Iacobbucci) – first concede that environmental protection can be a criminal law, but they don’t like the form of this legislation. They think that the legislation is more about regulating the release of PCP’s than about prohibiting it. There seems to be discretion about what is on the banned list and who is prosecuted. In criminal law you would expect to find clear prohibitions and sanctions without discretion. David Beatty argues that this should have been a POGG power rather than a criminal matter to begin with. *Kind of makes sense but looks like it wanted to leave room for the provinces
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Part III: Human Rights and Freedoms 10. Language Rights
56.2 Distribution of Powers over Language Jones v AG of New Brunswick (1974) 1) For constitutional purposes language is ancillary to the purpose for which it is used for and the language law is for constitutional purposes a law in relation to the instructions or activities to which the law applies. 2) SCC upheld federal Official Languages Act which made English / French official languages of Canada “in the institutions of the Parl’t and Gov’t of Canada”. For courts it could be authorized under Ss. 101 [federal power over federal courts] and over criminal procedure under Ss. 91(27) [federal power over criminal procedure]. 3)
Since Jones the Court has held that POGG power should be confined to subjects of legislation that are relatively narrow and specific.
4)
Devine v Quebec (1988)- SCC upheld provisions of the Quebec’s Charter that regulated language of commerce, public signs, invoices, orders, receipts etc. and this fell under provincial jurisdiction of property and civil rights in the province Ss. 92 (13) ANYTHING related to interprovincial regulations ie radio – TV is federal authority. Accepted by the court that “for constitutional purposes language is ancillary to the purpose for which it is used, and the language law is for constitutional purposes a law in relation to the institutions or activities to which the law applies”.
56.3 Language of the Constitution 1)
Ss. 55 Constitution Act 1982- directs the Minster of Justice to prepare French version of the English only parts of the Constitution of Canada 1867. It still remains unofficial. Any discrepancy would have to use the English one because it is official.
2)
The Constitution Act 1982 and Canada Act 1982 are BOTH in official languages.
3)
Ss. 57 The Constitution Act 1982- provides that the English and French version of that Act are equally authoritative
4)
Ss. 56 provides that both languages versions of other parts of Constitution of Canada are both “equally authoritative”
5)
Since the confederation federal statues have been enacted in both languages because it was required by Ss. 133 of the Constitution Act 1867. The court have held that both versions equally authoritative and have developed rules for resolving discrepancies. Any doubt or ambiguity is solved by looking at the clear version.
56.4 Language of statutes (a) Constitutional Requirements The ONLY explicit guarantee of language rights in the Constitution Act 1867 is contained in Ss. 133 1) Permits English and French to be used in debates in the House of the federal Parl’t and Quebec Legislatures AND it requires both English and French to be used in the records and journals of those Houses AND requires the statutes of federal Parl’t and Quebec Leg to be printed and published in BOTH languages Ss. 133 applies ONLY to the legislative bodies (and courts) and the federal government and of Quebec.
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HOWEVER Manitoba Act 1870 includes Ss. 23 a provision that provides for the use of English and French in the Legislature (and courts) of Manitoba in terms very similar to Ss. 133. NO other province created after 1867 had language guarantees written into their constituent instruments or terms of union. Charter of rights includes Ss. 16-23 that provide language provisions. Ss. 17-19 duplicate Ss. 133 in their application in legislative bodies (and courts) of the federal gov’t. Charter rights Ss. 17-19 apply to New Brunswick thus in the same position as Quebec /Manitoba (b) Quebec’s Charter of the French Language AG v Blaikie (1979) SCC struck down provisions of Quebec’s Charter purporting to make French the language of the Legislature. The Act provided that bills were to be provided in French ONLY and ONLY the French version be official (although English version to be provided/published). This contravened Ss. 133 requires law “be print and published” in both languages especially in “records and journals”. This means all statutes enacted after Quebec’s Charter were in violation of Ss. 133. This was fixed the next day… (c) Manitoba Official Language Act
We have noticed that Ss. 23 Man. Act 1870 - provides for English/French in the legislature (and courts) of Manitoba similar to Ss. 133 of the Constitution Act 1867. The reason for Ss. 23 was to guarantee the right to French speaking minorities. In 1890, the Manitoba Legislature enacted the Official languages Act which provided English Language ONLY” in records and journals of the Legislature and in the pleadings and process in the Manitoba courts. This Act was THEN held to be invalid by county courts in 1892 and 1890. These decisions were NOT appealed or record and disregarded by authorities in Manitoba. THEN in 1976, a third attack was mounted against the Official Languages Act and again it was found to be invalid by a county court. The AG of Manitoba announced that: “the Crown does NOT accept the ruling of the Court with respect to the constitutionality of the Official Languages Act.”
AG of Manitoba v Forest In 1978 it was challenged for the fourth time. This time a French speaking plaintiff brought an action in Manitoba court seeking a declaration that the Act was invalid. Court held that Manitoba’s Official Languages Act was unconstitutional BUT this did NOT expressly rule out the constitutional status of the Manitoba Statutes that have been enacted in English ONLY. Re Manitoba Language Rights (1985) SCC confirmed that the failure to comply with Ss. 23 requirement resulted in the invalidity of the purported statue. Re Manitoba Language Rights –courts considered a two stage procedure for bilingual enactment. The 1st stage- enactment of the bill in English only 2nd stage- was the preparation of a French translation of the bill, which would have legal effects on the Legislatures. This two stage process was also unconstitutional. Another provision stating to refer to English first the French second was also unconstitutional because both versions were “equally authoritative” (d) Incorporation by reference Where a statute makes reference to another document, so as to incorporate (or adopt) the document as part of the statute, THEN the general rule is that, IF there is a constitutional requirement that the incorporating statute be in both languages, THEN the requirement will apply to the incorporated document as well AG of Quebec v Collier – 1985 Two Quebec statutes fixed public sector wages and other terms of employment. They did so by reference to session papers that had been tabled in the Legislature; the details of the wages and other terms of employment were to be found NOT in the statute; BUT in the session papers to which the statutes referred. The statutes had been enacted in both French and English, BUT the session papers were in French ONLY. The session papers were an integral part of the statutes Since the session papers had been tabled in ONE language ONLY, the statutes could NOT be said to have been enacted in BOTH languages as required by Ss. 133
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Re Man Language Rights Order No 3 – 1992 When a statute refers to an extrinsic document that is NOT essential to the operation of the statute, so that the document that is NOT an “integral part” of the statute, THEN there is no “true incorporation” and the document would NOT be subject to the requirement of bilingual texts The rule from Collier, however is NOT an absolute rule The incorporated document MAY be exempt from the req’t of bilingual texts where that document emanated from a source that was under NO obligation of translation and where it was NOT practicable for the legislative body to produce translations R v Massia - 1991 – CA Challenge brought to the Federal Gov't Property Traffic Regulations, which applied on federal Crown property (such as military bases) and which provided that drivers MUST observe the law of the province in which the Crown property was situated The Regulations (and the enabling Act) had been enacted in BOTH languages The accused (convicted under Reg’s of driving a vehicle on a military base in Ontario while his license was suspended), challenged the legislation on the basis that it incorporated by reference a law of Ontario that had been enacted in English ONLY Majority Court of Appeal (Ont) rejected the challenge Ontario’s prohibition of driving while under suspension had been enacted by a body that was at the time of enactment under NO obligation to produce bilingual text and, although the charge was laid under the federal Reg’s, the Ontario prohibition was capable of operating of its own force on federal Crown property. (e) Delegated Legislation AG of Quebec v Blaikie - 1975 SC held that Ss. 133’s requirement that “Acts” be printed and published in BOTH languages applied to delegated legislation as well as to statutes This appeared to impose the requirement of bilingual enactment of ALL kinds of delegated legislation Quebec immediately applied to the Court for a rehearing to determine whether some kinds of delegated legislation were exempt from Ss. 133 AG of Quebec v Blaikie No 2 - 1981 SC HELD that ONLY regulations made by the Gov’t were subject to Ss. 133 By “the Gov’t” the Court meant the Lieutenant Governor, the Executive Council and Ministers ALSO included were Reg’s which, although made by officials or bodies outside the Gov’t, were subject to the approval of the Gov’t ALSO included were court rules of practice: these rules, although made by the judges and NOT the Gov’t, were subject to Ss. 133; and the rules of those administrative tribunals whose functions were “quasi-judicial” NOT subject to Ss. 133 were the by-laws of local municipalities and school boards, EVEN IF they were subject to the approval of the Gov’t Are orders in council included? Many Reg’s are required by their enabling statute to be made by the Lieutenant Governor in Council – this would obviously be covered by Blaikie No 2 BUT what about those orders in council that were of an executive RATHER than a Legislative nature, e.g. an order appointing a person to an office, OR an order authorizing the granting of a contract or permit? Re Manitoba Language Rights Order No 3 - 1992 SC HELD that Ss. 23 applied ONLY to “instruments of a legislative nature” Such an instrument would have the following 3 characteristics: o (i) it would establish a “rule of conduct”; o (ii) it would have the “force of law”; and o (iii) it would be “of general application RATHER than directed at specific individuals or situations” “Legislatures will OFTEN find it appropriate or desirable to translate instruments that go beyond those criteria”, BUT they would be under NO constitutional obligations to do so Sinclainr v Quebec – 1992 Applied Re Manitoba Language Rights Order No 3
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Could the Gov’t of Quebec, acting under statutory authority, create a new municipality by the issue of letters patent in the French language ONLY? Court HELD that the creation of local gov’t institutions, which would have among other things legal powers over the residents of the municipality, was NOT like the incorporation of a private company, which would simply have the powers of individuals Here, the purpose of Ss. 133 of making laws accessible in BOTH languages would be violated if the structure and powers of local gov’t institutions could be ascertained ONLY form a document that was NOT in the English language HELD – the new municipality had NOT been validly established
56.5 Language of Courts (a) Constitutional requirements Ss. 133 of the CA, 1867 gives choice of either French or English to litigants in the federal courts and the courts of Quebec Section 23 of the Manitoba Act, 1870 imposes a similar requirement on the courts of Manitoba Ss. 19(2) of the Charter of Rights imposes a similar requirement on the courts of New Brunswick The courts of the other 7 provinces are under no similar constitutional obligation (but NOTE requirements in CC (language of criminal trials) and by provincial law, eg in Ontario AG of Quebec v Blaikie – 1979 Quebec’s charter of the French language provided that, in the courts of Quebec, French was to be the language of pleading and process, EXCEPT in certain defined circumstances SC held NOT sufficient to give litigants the option of using English in defined circumstances ONLY Ss. 133 gave litigants in the courts of Quebec the option of using English in any pleading OR process (b) Definition of Courts Which courts are covered by Ss. 133? o Blaikie held that “the Courts of Quebec” included NOT only Ss. 96 courts (with federally-appointed judges) and the inferior courts (with provincially appointed judges), BUT ALSO administrative tribunals established by statute that exercised “adjudicative” functions (c) Language of process MacDonald v City of Montreal – 1986 English-speaking Quebecer defended a charge of speeding on the ground that the summons, which included the charge, had been issued by the Quebec court in the French language ONLY Majority of SC held that the unilingual summons did NOT infringe Ss. 133 Ss. 133, by providing that “either” of the 2 language may be used in any process issuing from a Quebec court, gave to the issuing court the choice of either the English or the French language The choice of language by the court was NOT to be governed by the wishes of the recipient of court process, which would in any case NOT necessarily be known to the issuing court Ss. 133, where it conferred a choice of language, “does NOT guarantee that the speaker, writer or issuer of proceedings or processes will be understood in the language of his choice by those he is addressing” MacDonald applied in Bilodeau v AG Man (summons issued by Manitoba court in English, held VALID) (d) Language of Proceedings Societe des Acadians v Associations of Parents (1986) Ss. 19(2) of Charter imposed on courts language req’t similar to Ss. 133. The Society claimed a breach of Ss. 19(2) when 3 judges heard their appeal BUT argued one could not speak French. SCC held that the Societe had NOT established their allegation that the judge could NOT speak French. Beetz J for the majority held that Ss. 19(2) did NOT in any case confer on a French-speaking litigant the right to be heard by a judge who understood French
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Dickson CJ and Wilson J each DISAGREED - stated that the litigants’ right to use either English or French impliedly included the right to be understood in the litigants language of choice by the judge hearing the case. o Language rights were based on “political compromise”
(e) Right to Interpreter Ss. 14 confers on a party or witness who does NOT understand or speak the language of the proceeding, or who is deaf, the right to an interpreter. There is a similar right Ss. 2(g) of the Canadian Bill of Rights. There is ALSO a common law right to an interpreter. R v Tran Argued a breach to Ss. 14. The quality of the interpretation has to meet the standard of “continuity, precision, impartiality, competence, and contemporaneousness”. Summaries of the interpreter’s examination and cross-examination were NOT continuous, precise, nor contemporaneous. Ss. 14 applies to ANY proceedings, including civil, criminal and administrative. Should be paid for by public funds.
56.6 - Language of Gov’t (a) Ss. 16 Charter [Page 56-22] This section makes English and French the Official Languages of Canada and New Brunswick. Has 3 subsections –NOT for gov’t and public communications (Ss. 20) Subsection (1) & (2) may well have the effect of conferring on public servants in the institutions of the federal Parl’t and gov’t and the NB Leg and Gov’t, the right to use either the English OR the French language as the language of work MacDonald v City of Montreal Subsection (3) the constitutional language rights are a “minimum NOT a maximum” and they “can be complemented by federal and provincial legislation” (b) Ss. 20 Charter [Page 56-23] This section imposes an obligation on gov’t to provide bilingual services on the Public. In nine of the provinces- there is NO obligation to provide gov’t services in BOTH official languages. DesRochers v Canada – 2009 – HELD: Like other language rights – Ss. 20 should be given “a liberal and purposive interpretation” It is NOT simply a q’s of accommodating the minority language speakers: “services of equal quality” in BOTH official languages MUST be provided HELD: A federal program to promote economic development in rural areas did NOT have to provide identical services or yield identical results to each language community b/c they had different needs and priorities; BUT the program HAD to provide benefits of EQUAL quality to those who sought access Court concluded that, although fewer French-speakers than English-speakers were taking advantages of the program, the French language community was receiving equal benefits form the program Knopf v Canada – 2008 An expert on copyright appeared before committee – testified orally in English BEFORE appearance – supported testimony with 4 English documents Committee determined would NOT distribute b/c ONLY English Applicant claimed violation of constitutional right Fed CoA held that constitutional right was satisfied as had received orally – right did NOT extend to distribution of supporting materials Hogg argues that this places a burden of translation on testifying member of public – seems breach of Ss. 20 Societe des Acadiens v Canada – 2008 French speaking resident of NB – speeding ticket – RCMP spoke English Argued entitled to receive police services in French
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SC HELD: RCMP federal institution that was in ALL provinces subject to minimum of Ss. 20(1) – whether it was acting as a federal police force OR provincial police force ALSO, when police services under K – RCMP was ALSO a provincial institution, which meant that in NB when the force was providing provincial police services (as here) the force was subject to unqualified obligation of Ss. 20(2) THEREFORE, the plaintiff in NB was entitled to communications in French from the RCMP officer who gave her the ticket, REGARDLESS of the demand for OR reasonableness of French-language services.
56.7 - Language of Commerce
No rights in the constitution protect the use of English or French in private commercial settings. However they may offend the guarantee of freedom of expression in Ss. 2(b)
Ford v Quebec (1988) SC struck down provisions of Quebec’s Charter of French Language that REQUIRED commercial signs and advertisements to be in French ONLY Freedom of expression included “the freedom to express oneself in the language of one’s choice” Therefore, the prohibition of the use of ANY language OTHER than French breached freedom of expression While Ss. 1 would save SOME laws designed to protect the French language, the TOTAL prohibition was a disproportionately severe measure that could NOT be saved under Ss. 1 – The law was therefore INVALID Devine v Quebec – 1988 HELD: that other provisions of Quebec’s Charter of the French Language, which required the non-exclusive use of French in brochures, orders, invoices and other business documents ALSO offended freedom of expression, even though for those documents there was NO prohibition of English (or any other language) “Freedom consists in the absence of compulsion as well as an absence of restraint” HOWEVER Ss. 1 saved the non-exclusive requirements and the provisions were valid Quebec re-enacted the laws using a notwithstanding clause, as authorized by Ss. 33 (override power) of the Charter of Rights. This illustrates an IMPORTANT difference between the guarantees of language rights (none of which is subject to override) and the guarantee of freedom of expression (which is subject)
56.8 - Language and education (a) Ss. 92 Constitution Act 1867- confers powers upon the provincial Legislatures the power to make laws in relation to education BUT it prohibits the Leg’s from prejudicially affecting rights w/ respect to denominational schools existing by law at the time of confederation. IF a language of instruction was a right or privilege of denominational schools in a province at the time of confederation THEN the province would have to respect that. (b) Mackell case – Privy Council Conclusion is that Ss. 93 would preserve the language of school IF could be proven it was existent BEFORE confederation. Mackell decides that NO right would exist in Ontario, NB, NS, PEI, BC. Held that Ontario had the power to require that English be the language of instruction in hitherto Frenchspeaking Roman Catholic separate schools in the province The court examined the statute law governing the separate schools in Ontario at the time of confederation and concluded that the law did NOT confer upon the separate schools the legal right to use French as the language of instruction Since NO such right existed at confederation, NO such right was preserved by Ss. 93 The reference to “class of persons” in Ss. 93 meant a “class of persons determined according to religious belief, and NOT according to race or language” Since the Roman Catholics in Ontario comprised BOTH French and English speaking people, the French speaker could NOT claim to be a class of persons entitled to rights under Ss. 93 It was argued that the French language was guaranteed to the entire class of Roman Catholics by statutory provisions conferring upon the trustees of separate schools the right to choose the language of instruction Court rejected this argument on the ground that the statute law of Ontario at the time of confederation did NOT confer that right
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The implication is that, IF the law at confederation had conferred that right, THEN Ss. 93 would have preserved (and entrenched) it and the province would have been unable to stipulate to the trustees of separate schools the language of instruction in ANY of their schools
(c) Ss. 23 Charter Minority language rights have NOW been provided for in Ss. 23. It is on citizens of Canada, who are English speaking minority in Quebec or French Speaking minority in other provinces “the right to have their children receive primary and secondary school in their language in that province.” Parent has to fit into 1 of 3 categories: 1. mother tongue of the parent Ss. 23(1a) 2. the language of primary school instruction in Canada of the parents (1b) 3. the language of instruction in Canada of one child of the parent Ss. 23(2)
(d) “Mother tongue of parent”- they have to “reside”, be Canadian citizen, be a language minority French or English, Need to prove the language was “ “first language learned” and is “still understood” By virtue of Ss. 59 Constitution of Act 1982- the paragraph does NOT apply in Quebec until the legislative assembly or gov’t of Quebec decides to adopt it. English speaking parents in Quebec have no right to send their children to English speaking schools, UNLESS they fit into the second or third category of parent recognized by Ss. 23. (e) Language of Instruction by Parent- Ss. 23 (1) (b) Applies to citizens who have received their primary school instruction in Canada in a minority language of the province where they now reside. This is called the (Canada Clause). Citizens who move from one province to another RETAIN their right to have their children educated in the SAME language as that which parent was educated anywhere in Canada. Quebec is NOT exempt from this para (b). AG of Quebec v Quebec Protestant School Board (1984) Quebec Charter of the French Language – had a Quebec clause BUT limited English speakers. SCC held that this clause was in conflict with Ss. 21(1) (b) of the Charter. The Quebec clause has to yield to the Canada clause. (f) Language of instruction of Child in Canada – Ss. 23(b) applies to citizens who have a child who has received OR is receiving primary OR secondary school instruction in English OR in French in Canada Quebec is NOT exempt from this clause either. This is to encourage mobility in Canada by guaranteeing the continuity of a child’s minority language education. (g) Where numbers warrant Ss. 23 (3)(a) uses the phrase the right to “instruction” is limited to “wherever” in the province the number of children of citizens who have such right is sufficient to warrant the provision to them public funds” You need to look at scale and decide where the minority group sits. Apply case law. Mahe v Alberta (1990) Court rejected argument that language facilities was NOT just physical facilities. It also includes a degree of management and control that was proportionate to the number of qualifying children. Arsenault-Cameron v PEI (2000) French language school wanting a bus service for 49 students. SCC sided with parents and held the relevant number “was somewhere between the known demand and the potential students who may go.” The number should over 100. The number in this case who potentially would go is 155. (h) Denomination Schools Ss. 29 of Charter provides:
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o o
Rights respecting certain schools preserved Ss. 29 - nothing in this Chapter abrogates or derogates from ANY rights or privileges guaranteed by or under the CC in respect of denominated, separate or dissentient schools
Mahe v Alberta - 1990 MOST of the Ss. 23 parents were Roman Catholic separate school supporters and the French-language school was operated by the separate school board HERE the relevant denominational school rights referred to in Ss. 29 of the Charter were contained in Ss. 17 of the Alberta Act ISSUE: Did the exclusive powers of management and control that the Court required to be vested in the representatives of the Ss. 23 parents derogate from denominational school rights HELD: the representatives of the Ss. 23 parents on the separate school board would also be denominational trustees, SO that there was NO requirement that the separate school board cede ANY powers to nondenominational trustees and there was NO interference with the denominational character of the board
(i) Supervision of Remedial Orders A breach of Ss. 23 may be remedied under Ss. 24(1) of the Charter – Ss. 24(1) authorizes a court of competent jurisdiction to award “such remedies as the court considers appropriate and just in the circumstances” SC of Canada – Doucet – Court upheld supervision order for 5 schools to be built FIRST time that a Canadian court had made provision for judicial supervision of compliance with a Ss. 24(1) order
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11. Aboriginal and Treaty Rights
28.1- Federal Legislative Power (a) Ss. 91(24) CA 1867 – fed Parl’t conferred power to make law relating to “Indians, and lands reserved for the Indians”. Ss. 91(24) o Main reason: Concern for aboriginals against settlers b/c adverse interests o Second reason: Desire to maintain uniform national policies respecting the Indians. The Royal Proclamation 1763 that treaty making w/ Indians was sole responsibility Imperial Crown of UK. After confederation, the federal gov’t was natural successor. Ss. 91(24) has 2 heads of powers : 1. A power over “Indians” (reserved for ONLY Indians where they reside on, or have any connection with, lands reserved for Indians.) 2. And a power over “lands reserved for Indians” (maybe exercised in respect of Indians and Non-Indians so long as the law is related to lands reserved for the Indians.) (b) “Indians” Who is an Indian? – Mean the aboriginal peoples who settled before Europeans. The Federal Indian Act - defines “Indian” includes register to record names within statutory definition aka. “Status Indians”. Right to live on Indian reserve. Not “Indians” – some w/ Indian Blood & Culture, outside def’n non-status Indians. o The Metis People (French/Indian) OUTSIDE reserve system BUT likely Indians under Ss. 91(24) & The Inuit or Eskimo people - outside reserve system BUT Indians under Ss. 91(24) Metis and Inuit NOT governed by the Indian Act. What kinds of laws may be made in relation to Indians? BROAD VIEW legislate on matters outside federal legislative competence AND that wouldn’t legislate for non-Indians. Whether these provisions are valid? Are they in pith and substance in relations to Indians? o Lysyk - doubts as to the validity of the Indian Act’s forays into the law of property. (c) “Lands reserved for Indians” Includes lands set aside as Indian reserves, areas of land recognized by Royal Proclamation 1763. This is all land within territory covered by the proclamation that was in possession of the Indians and that had NOT been covered by the crown. ***Delgamuukw v B.C. (1997) SCC HELD scope to include “ALL lands held pursuant to aboriginal title”. Thus, ONLY the federal Parl’t had power to extinguish aboriginal title. St Catherine’s Milling and Lumber Co v the Queen (1889) The title of provincial crown SUBJECT to aboriginal rights of Indians. Rights regarding control and administration of reserves are subject to the leg authority of the federal gov’t.
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(d) Canadian Bill of Rights Discrimination/Offence-with the Canadian Bill of Rights (CBOR)? The CBOR applies ONLY to federal laws. It contains Ss. 1(b) a guarantee of “equality before the law “ and forbids “discrimination by reason of race” The Indian Act appears to offend the guarantee of equality in CBORs b/c Ss. 91 (24) uses “Indian” as racial classification in order to be constitutional. R v Drybones (1969) SCC HELD the racial classification “Indian” in Ss. 94 (which made it an offence for an Indian to be intoxicated on a reserve) violated the equality guarantee in CBOR. BUT – one off - appears the special regime of law for Indians not threatened.
(e) Charter of Rights Discrimination/Offence-with the Charter of Right Ss. 15 - The Charter by Ss. 15 contains equality assurance. The Indian Act has NOT been challenged by reason of “Indian” classification. A challenge would MOST likely be unsuccessful b/c Constitutions’ various recognitions of Indian special status. Corbiere v Canada (1999) SCC struck down a provision of the Indian Act that made residence on the reserve a requirement for voting in band elections. Held: That the distinction between Indians who lived on the reserve (and could vote) and Indians who lived off the reserve was a breach of Ss. 15 Lovelace v Ontario (2000) SCC rejected a challenge to the distinction of the Casino Rama gambling profits that was limited to communities registered as bands under the Indian Act. The court held that the exclusion of non-status bands from the distribution of the profits was NOT a breach of Ss.15 (f) Treaties Ss. 35 of the CA1982 – constitutional protection to rights from treaties w/ Indians & possibly int’l treaties. Ss. 35 operates as a limitation on powers of federal gov’t & provincial legislatures.
28.2 Provincial Legislative Power (a) Application of provincial law General RULE that provincial laws apply to Indians and reserved lands. R v Hill (1907) - Ont. CA HELD provincial law applied to Indians to confine medicine to qualified doctors: Indian (not on reserve) convicted of unauthorized practice. Four B Manufacturing v United Garment Workers (1979) – The SCC HELD provincial labour law applied to shoe manufacturing business (owned through corp. by Indians) located on reserve, employed mainly Indians and funded by the Department of Indian Affairs. R v Francis (1988) – HELD provincial traffic laws applied to Indian driving on reserve. Provincial vs Federal The Four B and Francis cases definitely rejected the theory that Indian reserves are federal “enclaves” from which provincial laws are excluded. Paul v British Colombia (2003) – HELD the BC Forest Practices Act applied to Indian cutting timber in breach FIVE EXCEPTIONS A) Singling Out – Provincial laws that single out Indians/reserves for special treatment run risk of being classified as a law in relation to Indians or Indian reserves, THEN law invalid. R v Sutherland B)” Indianness” - where law affects status OR capacity - Kruger and Manuel v The Queen [1978] Provincial laws CANNOT affect aboriginal rights, treaty rights, aboriginal status, hunting or the right to possession of land on reserve A provincial law that affects “an integral part of primary federal jurisdiction over Indians and lands reserved for the Indians” will be inapplicable to Indians/reserves, EVEN IF law of general application within provincial competence: Four B Manufacturing v UGW [1980]
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Lovelace v Ontario [2000] Provincial spending program used Indian Act definitions to prescribe scope (defined which communities counted as “First Nations” for the casino program) did NOT impair status/capacity of non-status Indians. Did NOT impair any aboriginal or treaty right & HELD did not affect Indianness. Kitkalta Band v British Columbia [2002] FACTS: Heritage Conservation Act Minister w/ discretion destruct heritage property and licensed destruction including “culturally modified trees” Argument that licensing impaired status of Aboriginals, b/c “the core of Indianness” SC HELD: Argument rejected - Act valid exercise of provincial power over property and civil rights in province (Ss. 92(13)). The main purpose of the Act was to protect heritage property, including Aboriginal heritage property, and it was a valid part of the scheme to permit destruction in exceptional cases in pursuit of other social goals. HELD Aboriginal people had not established any aboriginal right/title to the culturally modified trees, which were on Crown land and, despite the cultural significance of the trees, application of Act to trees did NOT affect Indianness
Paul v British Columbia [2003] The Forest Appeals Commission of BC, an administrative tribunal established under provincial law, hearing on a contravention of province’s Forest Practices Code. FACTS: The D, an Indian, claimed that he was exercising aboriginal right when he cut down trees in provincial forest in apparent violation of the Code. Argued that tribunal had no jurisdiction over his case once an aboriginal right was put in issue. HELD: Court REJECTED this argument on the basis that adjudication was distinct from legislation. Certainly, the province could not legislate to extinguish or alter aboriginal rights and could not confer on an administrative tribunal the power to extinguish or alter aboriginal rights. BUT function conferred on the Forest Appeals Commission (included power to decide questions of law) solely an adjudicative one. The determination would be binding on the parties, BUT it would not be a precedent that would be binding on other tribunals or courts AND would be subject to JR by a superior court on std of correctness. C) Paramouncty- If a provincial law is inconsistent with a provision of the Indian Act (or any other federal law) the provincial law is rendered inoperative by the doctrine of federal paramountcy. D) Natural Resource Agreement- Provincial laws cannot deprive Indians the right to take game and fish for food. The NRA is part of the Constitution of Canada. E) Section 35 of the Constitution 1982 has protected treaty rights. 28.3 - Ss. 88 Of the Indian Act (a) Test of Ss. 88 o Ss. 88 makes it clear that provincial “laws of general application” apply to Indians. It makes NO comment on lands reserved for Indians BUT there is no doubt that the section extends to Indians on reserves. (b) Laws of General Application o “Laws of general application”- phrase excludes provincial laws that single out Indians for special treatment. Dick v The Queen [1985] o HELD: Ss. 88 applies to provincial laws that affect Indianness by impairing the status/capacity of Indians o Does NOT apply to cases of provincial laws that do NOT affect Indianness Ss. 88 is NOT merely declaratory of the existing constitutional position – on the contrary, Ss. 88 EXPANDS the body of provincial law that is applicable to Indians o Provincial laws affecting Indianness, which on face do NOT apply to Indians, are made applicable by Ss. 88 (c) Paramountcy Exception o Ss. 88 makes CLER that paramountcy doctrine continues to apply to provincial laws of GENERAL application, notwithstanding adoption by federal statute
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o o o
Doctrine of paramountcy applies ONLY where there is express contradiction between federal & provincial law. It does NOT apply where fed/provincial law are not in direct conflict, and merely occupying same field Ss. 88 goes FURTHER than paramountcy as renders inapplicable to Indians some provincial laws of general application which are NOT in direct conflict with the Indian Act Expansion of paramountcy doctrine operates as exception to Ss. 88
(d) Treaty Exception This function of Ss. 88 has become less important with the adoption of Ss. 35 CA 1982, which gives explicit constitutional protection to aboriginal treaty rights
28.4 – Natural Resource Agreements
Entered into between Canada and the 3 Prairie Provinces and given constitutional status by an amendment to the Constitution Act in 1930.
Alberta (clause 12), Saskatchewan (Clause 12) and Manitoba (clause 13): “In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access”. (The word “Indians” in this context excludes the Métis: R v Blais [2003]) As a result, in 3 provinces Indians are guaranteed right to take game and fish “for food” at ALL seasons of the year on the lands specified. Provincial laws to the contrary are inapplicable to the Indians: R v Badger [1996] This clause gives no protection against federal laws: Daniels v White [1968] Previously, under the numbered treaties, those Indians had the right to hunt and fish for commercial purposes as well. However, in R v Horseman [1990], the SC held that an Alberta Indian’s treaty right to hunt commercially (Treaty 8 in 1899) had been “merged and consolidated” in clause 12 of the Alberta Agreement and his rights were now only those specified in the Agreement. o Meant that Indian treaty rights had been partially extinguished by a constitutional amendment enacted w.o the consent of the Indians, who were not even consulted!
28.5 - Aboriginal Rights (a) Recognition of Aboriginal Rights
The effect of Guerin and Sparrow is to confirm that aboriginal rights DO exist at common law and they are enforceable at the suit of aboriginal peoples.
Sparrow Decides as well that aboriginal rights including fiduciary duty are now constitutionally guaranteed through Ss. 35 CA1982 Calder Case (1973) 6/7 Held that Nishga of BC possessed aboriginal rights to their lands that had survived European settlement. Guerin v The Queen (1984) Aboriginal rights that have not been extinguished are recognized by the common law and are enforceable by the courts. Majority of the SCC recognized that aboriginal title of Musqueam Band to land in BC Dickson- “A legal right derived from the Indians historic occupation and possession of their tribal lands”. Held: The aboriginal title to the land gave rise to a fiduciary duty on the part of the crown to deal with the land for the benefit of the surrendering Indians. Held: This fiduciary duty had been broken and awarded damages to the Band. (this did not depend on Ss. 35 of the Act) b/c land leased for less than agreed upon/golfing
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R v Sparrow ( 1990) SCC unanimously recognized the aboriginal right of a member of the Musqueam Indian Band to fish for salmon in the Fraser River. “Where his ancestors had fished from time immemorial” D charged w/ violating federal Fisheries Act and b/c charge related to facts occurring AFTER 1982 he was able to invoke the Ss. 35 of the Constitution Act 1982. Held Ss. 35 provided constitutional protection for aboriginal right and laid down principles to govern Ss. 35. The court also enlarged the fiduciary duty “the Gov’t has the responsibility to act in a fiduciary capacity.” (b) Def’n of Aboriginal Rights Guerin and Sparrow cases had recognized aboriginal rights. ***R v Van der Peet (1996) the SCC went FURTHER and defined aboriginal rights.
***R v Van der Peet ( 1996)
Larmer C.J. Aboriginal rights are rights held by aboriginal peoples, NOT by virtue of Crown grant, legislation or treaty BUT “by reason of the fact that aboriginal peoples were once independent, self-governing entities in possession of most of the lands now making up Canada. Legal Test: “In order to be an aboriginal right an activity MUST be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right” within Ss. 35 of CA82 In order for the practice to be “integral”, the practice MUST be “of central significance” to the aboriginal society: it MUST be defining characteristic of society, “sth that made the culture of the society distinctive”. The practice MUST have been developed before “contact” that is, “before the arrival of Europeans in North America. (2 dissenting judges felt the requirement unduly difficult to prove) The practice can evolve over the years as the result of contact (ie. bone hook-metal hook & bow and arrowgun) BUT contemporary practices that developed “solely as a response to Europeans” do not qualify Facts: D had been convicted of catching and selling fish that she had caught under the authority of a Indian food-fish license. The court held that fishing for food was part of the Sto:lo society as well with the exchange of fish, BUT selling the fish was not an “integral part” of the Sto”lo culture.
R v. NTC Smokehouse – rights not established Practice of exchanging fish NOT sufficiently central to the aboriginal culture to qualify as aboriginal right R v. Gladstone [1996] - rights established Held that the claimed aboriginal right which was to sell hearing spawn on kelp was established and “was a central and defining feature of Heilstuk society”. R v Powely (2003) Held- for Metis claimants of aboriginal rights, the focus on European contact had to be moved forward, NOT to the time of European sovereignty, BUT to “the time of effective European control”. The same *Van der Peet definition was used to be used to identify Metis rights. Metis Rights-Legal test changed (c) Aboriginal Self –Government Prof. Slatttery- The aboriginal right of self-government MUST exist because aboriginal people were living in self-government communities before the arrival of Europeans. Charlottetown Accord of 1992- agreed of “the inherit right of self-government within Canada” which IF ratified would have explicitly protected (and regulated) this right in a new Ss. 35.1 of the CA1982. Proposed Ss. 35.1 - Charlottetown Accord – wanted to give meaning to self-governing in a modern context. R v Pamajewon (1996) SCC rejected claim by First Nations to conduct high stakes gambling on their reserves. Gambling operations were conducted pursuant to a law enacted by the band council. It was NOT a by-law of the Indian Act. They were charged with a gaming offence under the Indian Act. Larmer CJ characterized the claimed right as a right “to participate in and regulate, gambling activities on their respective reserve lands.” Lamer CJ stated “assuming w/o deciding that Ss. 35(1) includes self-gov’t claims” & held that such claims were to be resolved by SAME Van der Peet test as claims to other kinds of aboriginal rights. Evidence showed - That they gambled BEFORE the arrival of Europeans, it was small scaled and informal and NOT part of means by which communities were sustained.
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Court concerned with ability of aboriginals to immunize from rules of Criminal Code MAJOR concern. The aboriginal right to self-government extends ONLY to activities that took place before European contact AND integral part of the aboriginal society.
IF the Court had decided that an aboriginal right of self-gov’t DID authorize an aboriginal law regulating gambling, THIS would NOT necessarily mean that the inconsistent Criminal Code provisions would have to yield to the aboriginal law. A q’s of paramountcy would be presented, and should PROBABLY be resolved by application of the Sparrow test. Potential Question — does the provision of the Criminal Code satisfy the Sparrow test of justification?
*Delgamuukw v B.C. (1997)
Proceedings for a declaration that they had aboriginal title and self-gov’t right over territory in northern B.C. The SCC did NOT grant the declaration sought and ordered a new trial. Larmer CJ did provide extensive reasons as to the nature of aboriginal title. TWO things said about aboriginal title and self-governance are: o 1) land held under aboriginal title is “held communally”; and o 2) aboriginal title “encompasses the right to choose to what uses land can be put.” THUS implied requirement of some internal structure for communal DMing
(d) Aboriginal Title Is the right to the exclusive occupation of land, which permits the aboriginal owners to use the land in a variety of purposes. Permits the owners to hunt, fish and harvest their lands. However, rights to particular activities such as hunting, fishing and harvesting MAY ALSO exist on land to which the aboriginal people do NOT have title to. (Fishing - R v Adams)
***Delgamuukw v British Columbia (1997)
Aboriginal people brought proceedings for a declaration that they had aboriginal title and self-gov’t rights over a territory in N. BC After a prolonged trial, followed by appeals, the result of the case was inconclusive. SC held that the trial judge had wrongly rejected (or given insufficient weight to) aboriginal evidence provided in support of claim & ordered a new trial to make new factual findings. The Court laid down the rules of evidence and substance that were to govern the new trial Aboriginal title has its source in the occupation of land by aboriginal people BEFORE the Crown assumed sovereignty over the land. It does NOT derive from a Crown grant, something that could only take place after the assumption of sovereignty by the Crown. Aboriginal title is proved, NOT by showing a chain of title originating in a Crown grant, BUT by showing that an aboriginal people occupied the land prior to sovereignty. The mere fact of pre-sovereignty occupation is sufficient to show that title to the land is “of central significance to the culture of the claimants” and so the centrality requirement of Van der Peet does NOT have to be separately established to make out a claim to aboriginal title The pre-sovereignty occupation by the first nation has to be exclusive. IF the land was used by others, THEN it is necessary to show intention to retain exclusive control AND had the power to exclude others if they chose The point of time at which aboriginal occupation of the land MUST be proved in order to make out aboriginal title is “prior to sovereignty”, NOT “prior to contact”. The less stringent time frame for proof of aboriginal title follows from the fact that aboriginal title is a burden on the Crown’s underlying title and the Crown’s underlying title ONLY came into existence when sovereignty was assumed by the Crown. Therefore, so far as the common law was concerned, “aboriginal title crystallized at the time sovereignty was asserted” IF present occupation is relied upon, THEN it is necessary to show “a continuity between present and presovereignty occupation”. That continuity might have been disrupted for a time, BUT so long as there was a “substantial maintenance of the connection” the requirement of continuity is satisfied
5 Differences between aboriginal title vs. non-aboriginal title 1. Source of aboriginal title a. Derives from pre sovereignty occupation RATHER THAN post-sovereignty grant from the crown. 2.
The range of uses to which aboriginal title land may be put.
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a.
b. c. d.
Aboriginal title confers the right to exclusive use and occupation of the land, which includes the right to engage in a variety of activities on the land and those activities are NOT limited to those that have been traditionally been carried on and are certainly not limited to those that were integral to the distinctive culture. Eg, the exploitation of oil or gas existing in aboriginal lands would be possible. BUT there is a limitation that the uses “must not be irreconcilable with nature of the attachment to the land which forms the basis of the particular group’s aboriginal title” This means that land occupied for hunting purposes could not be converted to strip mining, eg. This inherent limit on the uses to which the land could be put may be contrasted with the lack of any comparable restrictions on a fee simple title (although there will usually be statutory restrictions on a fee simple title, such as zoning by-laws)
3.
Inalienability a. Aboriginal title is inalienable, EXCEPT to the Crown. b. The doctrine of inalienability means that the Crown has to act as an intermediary btw the aboriginal owners and TP. c. In order to pass title to a TP, the aboriginal owners MUST first surrender land to Crown. The Crown THEN comes under fiduciary duty to deal with land in accordance with best interests of surrendering aboriginal, by ensuring that adequate compensation is received by the aboriginal owners: Guerin v The Queen [1984] d. In *Delgamuukw, Lamer CJ suggested that inalienability was a subset of the inherent limit on the uses permitted by aboriginal title. Alienation would be irreconcilable with the nature of the aboriginal attachment to the land – indeed, it would end the attachment – and was barred for that reason
4.
Aboriginal title can ONLY be held communally. a. “Aboriginal title CANNOT be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation” *Delgamuukw
5.
Aboriginal title is constitutionally protected. a. Even before 1982, aboriginal title could NOT be extinguished by provincial legislation, because provincial extinguishment would conflict with the exclusive federal power over “Indians and lands reserved for the Indians” by Ss. 91(24) CA 1867. b. Before 1982, aboriginal title could be extinguished by federal legislation, BUT the legislation would have that effect ONLY if it showed a “clear and plain” intention to extinguish aboriginal title. c. From 1982 effect of Ss. 35 is to confer constitutional protection on ANY aboriginal title that was “existing” (unextinguished) in 1982 d. The constitutional protection accorded by Ss. 35 is NOT absolute, BUT it does require that any infringement of the right MUST be enacted by the competent legislative body (which is the federal Parl’t) and MUST satisfy the Sparrow test of justification. e. At minimum, test of justification would NORMALLY require prior consultation w/ aboriginal owners BEFORE any incidents of title were impaired as well as fair compensation for impairment
(e) Extinguishments of Aboriginal Rights This can occur in 2 ways: 1. By surrender (MUST be voluntary and to the Crown) R v Howard [1994] 2. By constitutional amendment R v Horseman [1990] a. Breach of fiduciary duty to not at least consult aboriginal people
Ss. 35 CA permits the regulation of aboriginal and treaty rights by federal law that satisfies strict standards of justification BUT does NOT permit the extinguishment of aboriginal and treaty rights
28.6 – Treaty Rights (b) History < 1982 Indian treaty right CAN’T derogate by provincial law BUT NOT federal - Ss. 88 Indian Act > 1982 Indian treaty rights Ss. 35 CA 1982 protects from derogation EITHER by federal or provincial law Ss. 35 explicitly includes rights acquired under modern land claims agreements its protected treaty rights. THUS as land claims agreements are ratified, they acquire constitutional status.
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(c) Definition of Treaty Has been described as “unique” or “sui generis”. Not subject to the rules of int’l law and is NOT a treaty at int’l law. It is NOT a K and NOT subject to rules of K law. It is an agreement between the Crown and aboriginal nation w/ the following characteristics: 1. 2. 3. 4. 5.
Parties-Crown on one side, aboriginals on the other. Agency- signatories of treaty MUST have authority to bind their principles, i.e. Crown and aboriginal nation. Intention to create legal relations: the parties MUST intend to create legally binding obligations. Consideration- the obligations MUST be assumed by both sides, so that the agreement is a bargain. Formality: there MUST be a certain measure of solemnity.
2 leading cases about treaties are: Both cases were applying Ss. 88 Indian Act NOT Ss. 35 CA 1982 (safe to say word treaty is similar)
R v Sioui (1990) - short document signed in 1760 which “certified” that the Chief of Huron Indians had come “in the name of his nation” the free exercise of their religion, customs and liberty. The SCC held this to be a valid treaty by virtue of Ss. 88 of the Indian Act. Simon v the Queen (1985) - Held to be a valid treaty to except the Micmac D from the game laws of N.S.
These cases make CLEAR that surrender of aboriginal rights is NOT a requirement of a valid treaty. NOR does a treaty have to be concerned with territory; it could be “an agreement about political or social rights” (d) Principle of interpretation Simon v The Queen [1985] Treaties and statutes ref to Indians to be liberally construed and doubtful expressions resolved in favour them. The idea is to construe treaties “in the sense in which they would naturally be understood by the Indians” R v Marshall [I] [1999] Mi’kmaq Indian charged with fishing eels and selling w/o license BUT argued had treaty rights SC held that clause should be interpreted as conferring a right to hunt, fish and gather b/c ONLY by hunting, fishing and gathering would the Indians be in a position to bring “commodities” to the ‘truck house’ Clause ALSO interpreted as conferring right to trade products to make a “moderate livelihood”. Right persisted after abolition of truck house as a “mere disappearance of mechanism created to facilitate right” Interpreted as within treaty rights of Ss. 35 and thus prevailed over statutory licensing R v Marshall [II] [1999] Issued a second set of reasons, clarifying and somewhat narrowing its earlier reasons, BUT not changing the decision OR ratio which was that the truck house clause conferred a modern right to hunt, fish and gather the things that in 1760 were to be traded at the truck house R v Marshall [III] 2005 Modern eel fishing was logical evolution of a traditional trading activity, as decided in Marshall [1], the same case could NOT be made for logging Logging (unlike eel fishing) was NOT a tradition of Mi’kmaq activity in 1760. While treaty rights are NOT frozen in time, modern logging activity could NOT be characterized as the natural evolution of the minor trade in wood products that took place at the time of the treaty. The Mi’kmaq D’s therefore had NO treaty right to cut down trees for commercial purposes w/o a license. R v Morris [2006] Logical evolution to use spotlight with guns as ancestors had night hunted with illumination Held: the practice was protected by the treaty and 2 accused were entitled to be acquitted (e) Extinguishments of Aboriginal Treaty Rights SAME two ways as aboriginal rights - can occur in 2 ways: 1) by surrender (must be voluntary and to the Crown) R v Howard [1994] 2) by constitutional amendment R v Horseman [1990 IN ADDITION, IF treaty makes provision for its OWN amendments or repeal
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IN ADDITION, voidable IF fundamental breach by one of the parties
28.8 – Section 35 (a) Text of Ss. 35 (1) The existing aboriginal & treaty rights of the aboriginals of Canada are hereby recognized and affirmed (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada (3) For greater certainty, in subsection (1), “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. (b) Outside Charter of Rights Ss. 35 is OUTSIDE the Charter of Rights, which occupies Ss. 31 to 34 CA 1982 Advantages: o Rights NOT qualified by Ss. 1 – to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” *BUT subject to reasonable regulation according to similar principles] o NOR subject to legislative override under Ss. 33 Disadvantage: o NOT enforceable under Ss. 24 – which permits enforcement ONLY of Charter rights (c) “Aboriginal peoples of Canada” Ss. 35(2) – includes NOT only status Indians BUT also non-status Indians R v Powley [2003] Held: The term “Métis” does NOT encompass ALL individuals w/ mixed Indian and European heritage; RATHER it refers to distinctive peoples who, in addition to their mixed ancestry, developed OWN customs, way of life and recognizable group identity separate from Indian or Inuit or European forebears “Three broad factors as indicia of Métis identity”: o (1) Self-identification: claimant MUST self-identify as a member of a Métis community; o (2) Ancestral connection: claimant MUST trace ancestry to a historic Métis community; and o (3) Community acceptance: claimant MUST be member & modern Métis community participant (d) “Aboriginal and treaty rights” Covered earlier (e) “Existing” R v Sparrow [1990] Held: The word “existing” in Ss. 35 meant “unextinguished”. A right that had been validly extinguished before 1982 was NOT protected by Ss. 35 Refused to imply an extinguishment from admittedly extensive regulatory control of Fisheries Act Federal statute would have extinguishing effect ONLY if the intention to extinguish was “clear and plain” The word “existing” meant that the guaranteed rights are “affirmed in a contemporary form RATHER THAN in their primeval simplicity and vigour” (f) “Recognized and affirmed” The Court is Sparrow concluded that Ss. 35 should be interpreted as a constitutional guarantee of aboriginal and treaty rights. As a constitutional guarantee, Ss. 35 had the effect of nullifying legislation that purported to abridge the guaranteed rights. Ss. 35 is NOT subject to Ss. 1 of the Charter. However, the rights protected by Ss. 35 are still subject to regulation by federal laws, provided the laws meet standard of justification similar to that for Ss. 1 of the Charter. A justified impairment would have to pursue an objective that was “compelling and substantial” The conservation and management of a limited resource would be a justified objective, BUT “the public interest” would be too vague to serve as a justification. IF a sufficient objective was found, THEN the law had to employ means that were consistent with “the special trust relationship” btw gov’t and the aboriginal peoples. In the context of the fishery, this would require that the Indian claims be given priority over the claims of other
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interest groups who could not assert an aboriginal right. In other contexts, other questions would have to be addressed: o “These include the questions of whether there has been as little infringement as possible in order to effect the desired result; whether, in a situation of expropriation, fair compensation is available; and, whether the aboriginal group in question has been consulted with respect to the conservation measures being implemented.” In Sparrow, the Court did NOT feel able to decide whether the net-length restriction would satisfy the standard of justification. The Court ordered a new trial.
R v Adams [1996] Issue: was an aboriginal right to fish for food validly limited by the federal Quebec Fishery Reg’s, which provided for the issue of licences for sport and commercial fishing, BUT not for food fishing, although there was provision for a special permit to be issued by the minister to an Indian for food fishing. Held: the Reg’s failed the Sparrow test of justification. The evidence showed that, after conservation, it was the promotion of sport fishing that was the major goal and that did NOT qualify as a compelling and substantial objective. Even IF the objective was sufficient, the court found that the scheme “fails to provide the requisite priority to the aboriginal right to fish for food, a req’t laid down by this Court in Sparrow” The ministerial discretion to issue Indian fishing permits was unstructured and did NOT include standards directing the minister to accord priority to aboriginal right to fish for food. R v Gladstone [1996] Issue: could restrictions on the sale of herring spawn on kelp be justified in their application to aboriginal people who had an aboriginal right to sell the spawn Majority of the SC qualified the Court’s earlier ruling in Sparrow that the holders of aboriginal rights would have to be given priority in access to a resource such as the fishery. Now, priority WAS required ONLY when the aboriginal right was limited by its own terms, as was the case of a right to fish for food, which is internally limited by the fact that the right-holders need ONLY so many fish for food. Giving priority to an internally limited aboriginal right would still leave room for non-aboriginals to gain access to the resource (assuming conservation goals were not transgressed). The right to engage in commercial fishing, such as the right to harvest herring spawn for sale in the open market, has no internal limitation; it is limited only by external factors, namely, the availability of the resource and the demands of the market. To give priority to a right with no internal limitations would confer on the aboriginal right-holders the power to absorb the entire fishery, effectively eliminating all non-aboriginal access to the resource. The Court held this was not an acceptable outcome and that for a right w/o internal limitations, the Sparrow requirement of justification did NOT require aboriginal priority, BUT could be satisfied by “objectives such as the pursuit of economic and regional fairness and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups” Here, there was insufficient evidence to determine whether the regulatory scheme for the sale of herring spawn was justified so the Court remitted the issue to a new trial. ***R v Delgamukw [1997] The Crown’s fiduciary duty would normally involve a “duty of consultation” with aboriginal people BEFORE decisions were taken with respect to their lands “Fair compensation” would normally be required when aboriginal title was infringed (g) Application to treaty rights R v Badger [1996] Held: B/c Ss. 35 applied to treaty rights AS WELL AS aboriginal rights, the doctrine laid down in Sparrow applied to treaty rights as well as aboriginal rights Treaty rights that had been created by mutual agreement COULD be abridged unilaterally As a result treaty rights HAVE TO yield to any law that can satisfy the Sparrow standard of justification R v Cote [1996] The impugned law, which imposed a fee on vehicles entering a fishing area, was held NOT to infringe a treaty right to fish, so that the issue of justification was never reached
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R v Marshall [1999] Affirmed Sparrow test applied to a treaty right and went further, holding that some kinds of laws limiting treaty rights would NOT need to satisfy any standard of justification. Here, the treaty right was to fish “for a moderate livelihood” and the Court held that there was a difference between defining the treaty right & regulating the treaty right. Laws imposing catch limits or other restrictions on aboriginal fishing that had as their purpose limiting the aboriginal catch to a “moderate livelihood” were simply “defining” the treaty right and such laws would NOT need to satisfy the Sparrow test of justification. ONLY those laws that would take the aboriginal catch below the quantities reasonably expected to produce a moderate livelihood should be regarded as “regulating” the treaty right. Only those laws would need to satisfy the Sparrow test of justification. (h) Application to extinguishment The justificatory tests propounded in Sparrow would, IF satisfied, save a federal law that purported to regulate an aboriginal or treaty right, BUT not a federal law that purported to extinguish the right Can ONLY be done by: o (i) surrender; and o (ii) constitutional amendment.
(i) Application to provincial laws R v Sparrow Although provincial law was NOT in issue – held that Ss. 35 ALSO affords aboriginal people constitutional protection against provincial legislative power R v Badger Held: Provincial law CAPABLE of infringing a treaty right (to hunt for food), provided the law could satisfy the Sparrow standard of justification R v Cote [1996] SC cited Badger as authority for proposition that the Sparrow standard of justification was available to provincial laws Hogg Argues: Court did NOT discuss the prior q’s of power of province to enact law that infringed aboriginal/treaty rights Quite apart from Ss. 35, provincial legislative power does NOT extend to laws that would impair aboriginal or treaty rights, b/c such laws affect “Indianness” By virtue of Ss. 88 Indian Act, provincial laws of general application that affect Indianness MAY become applicable to Indians BUT, treaty rights are expressly immunized by Ss. 88 form provincial laws that are incorporated by Ss. 88 A provincial law to which Ss. 88 applies is transformed by adoption or incorporation into a federal law. The effect of Ss. 35 would be to require ANY provincial law that is adopted by Ss. 88 to pass the Sparrow test BEFORE the law could impair aboriginal rights HOWEVER a provincial law could NEVER extinguish aboriginal rights – Ss. 88 does NOT evince the requisite clear and plain intent to extinguish aboriginal rights (j) Duty to consult aboriginal people
*** Haida Nation v BC [2004]
Does Ss. 35 provide any interim protection for aboriginal interests that are still unproved or under negotiation? SC: Held yes. Ss. 35 not only guarantees existing aboriginal and treaty rights, it ALSO imposes on gov’t the duty to engage in various processes even before an aboriginal or treaty right is established. The honour of the Crown entails a duty to negotiate aboriginal claims with First Nations. And, while aboriginal claims are unresolved, the honour of the Crown entails a duty to consult and, if necessary accommodate the interests of, the aboriginal people before authorizing action that could diminish the value of the land or resources that they claim. Here, the BC gov’t had issued a licence to the Weyerhaeuser Company authorizing the Co. to cut trees on
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provincial Crown land in the Queen Charlotte Islands. The Islands were the subject of a land claim by the Haida Nation which had been accepted for negotiation, BUT had not been resolved at the time of the issue of the licence. The cutting of trees on the claimed land would have the effect of depriving the Haida people of some of the benefit of their land if and when their title was established. SC held, Ss. 35 obliged Crown to consult w/ the Haida people and, if necessary, accommodate their concerns. The extent of consultation and accommodation “is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title and to the seriousness of the potentially adverse effect upon the right or title claimed” In this case, a preliminary assessment indicated that there was a prima facie case for aboriginal title AND a strong prima facie case for an aboriginal right to harvest the red cedar growing on the Islands. The logging contemplated by the Co.’s licence, which included old-growth red cedar, would have an adverse effect on the claimed right. Since the province was aware of the Haida claim at the time of issuing the licence, it was under a duty to consult with the Haida before issuing the licence. Not having done so, the Crown was in breach of Ss. 35 and the licence was invalid. Here, since the required consultation never took place, the Court did not have to decide whether consultation would have given rise to a duty to accommodate. But the Court suggested that the circumstances of the case “may well require significant accommodation to preserve the Haida interest pending resolution of their claims”. Does the duty to consult extend to a private party like Weyerhaeuser? SC held: no. The honour of the Crown imposed obligations ONLY on the Crown. The Court accordingly rejected the argument that the Weyerhaeuse Company was under a constitutional duty to consult (although the terms of its licence imposed a contractual obligation to engage in some consultations with the Haida). Does the duty to consult extend to the Crown in right of a province (ie, the provincial gov’t)? In this case, it was provincial Crown land that was the subject of the aboriginal claim and it was the action of the provincial gov’t in licensing the cutting of trees that potentially impaired the value of the claim. Held: the public lands of the province were subject to aboriginal interest and the duty to consult extended to the crown in right of the province. Held: the Crown’s actions (re consultation and accommodation) were reviewable by the courts under general principles of JR Pure questions of law are reviewable on a standard of correctness; the existence and extent of a duty to consult or accommodate would typically be inextricably entwined with assessments of fact and therefore, reasonableness would be the standard of review. “Reasonable efforts” on the part of the gov’t to inform itself, consult and accommodate are required. Duty to consult/accommodation does NOT involve a duty to agree! In the absence of approved aboriginal right or a treaty right, the aboriginal people did NOT have a veto over the development of land in which they claimed an interest.
Companion Case: Taku River Tlingit First Nation v BC [2004] A mining co applied to the BC gov’t for permission to reopen an old mine in an area that was the subject of an unresolved land claim by the Taku River Tlingit First Nation. This application triggered a statutory environmental assessment process, which ended with approval of the application to reopen the mine. The First Nation objected to the outcome. Held: this was a case where there were duties to consult and accommodate: there was a prima facie case for the aboriginal claim and the reopening of the mine was potentially harmful to the claim. However, the Crown’s duty had been discharged in this case. The environmental assessment took 3.5 yrs and the First Nation was included in the process. Its concerns were fully explained and were listened to in good faith and the ultimate approval contained measures to address the concerns. Meaningful consultation did NOT require agreement and accommodation required only a reasonable balance btw the aboriginal concerns and competing considerations Companion Case: Mikisew Cree First Nation v Canada [2004] Federal gov’t proposed to build road in a national park on federal Crown land in northern AB. The route of the road was through the traditional hunting grounds of the Mikisew Cree First Nation, which objected to the project for that reason.
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The road proposal was all within the Treaty 8 area of northern Alberta. Under Treaty 8, entered into in 1899, the aboriginal people who lived in the territory had surrendered the entire area to the federal Crown. In return, aboriginal people were promised reserves and benefits. Treaty 8 gave to the aboriginal signatories (included Mikisew Cree) the right to hunt, trap and fish throughout the surrendered territory “saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purpose”. The proposed road involved an exercise of the Crown’s right to take up land under this clause. Was taking up land under the Treaty subject to a constitutional duty of consultation? SC held: “treaty making is an important stage in the long process of reconciliation, BUT it is only a stage”; and Treaty 8 was “NOT the complete discharge of the duty arising from the honour of the crown” Where the exercise of treaty rights by the Crown could have an “adverse impact” on aboriginal people, the honour of the Crown required consultation with the affected people. In “appropriate” cases, the duty of consultation would lead to a duty to accommodate the aboriginal interests, although it did not require that aboriginal consent be obtained. In this case, the diminution of the Mikisew Cree’s hunting and trapping rights in their traditional territory was a clear consequence of the proposed road. That adverse impact triggered the duties of consultation and accommodation. The discussions that had taken place btw park officials and the Mikisew Cree were NOT sufficient to satisfy those duties. The Court quashed the minister’s decision to approve the road project and sent the project back for reconsideration in accordance with the Court’s reasons.
28.9 – Section 25
Ss. 25 CA 1982: o The guarantee in this Charter of certain rights and freedoms shall NOT be construed so as to abrogate or derogate from any aboriginal. Treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including: (a)any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. o Interpretative provision to make clear that Charter is NOT to be construed as derogating from aboriginal treaty and right
Corbiere v Canada [1999] Equality challenge against provision of Indian Act that restricted voting rights in band elections to those living on reserve In response, it was argued that the provision was one of “the other rights/freedoms” in Ss. 25 thus shielded from constitutional attack The Court acknowledged that “other rights/freedoms” MIGHT include statutory rights BUT did not suggest which Court struck down residence provision under Ss. 25 on basis that discriminated against members living off reserve Ss. 35.1 aboriginal peoples have gained entry to the constitutional amendment process. The privilege is accorded to NO other group outside government, which emphasizes that the special status of the aboriginal peoples is now firmly accepted in Canada.
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Chapter 36 – Charter of Rights History
Absence of a bill of rights in CA, 1867. Canadian Bill of Rights enacted in 1960 – BUT it was merely a statutory instrument and it did NOT apply to the provinces. Still in effect.
Bill of rights compared to Charter: Bill merely a statute; Charter is part of the Constitution (Ss. 38 – general (seven-fifty) procedure is appropriate amendment procedure); Bill’s effect on inconsistent statutes is NOT clear; Charter expressly overrides inconsistent statutes (Ss. 52(1) (supremacy clause); The Bill applies ONLY to federal gov’t; Charter applies to both levels (Ss. 32(1))
36.2 – Protection of civil liberties
ALL Canadian jurisdictions except for Quebec engaged in a review of statutes books and enacted amendments to a large # of statutes to correct perceived violations of Charter rights Provinces undertake some scrutiny by A.G. OR Minister of Justice as part of duties BUT less on voluntary actions of gov’t and MORE on sanctions of nullification administered by the courts where law is challenged, and found to violate a civil liberty THEN declare law/act as nugatory
36.3 Enhancement of national unity
Charter is a centralizing force in a subtle sense in that applies throughout the country in areas formerly EXCLUSIVELY under provincial jurisdiction Mobility of rights (Ss. 6) and language rights (Ss. 23) are directed to national unity Charter issues have strengthened its legitimacy it by the further assumption that on issues of human rights it is appropriate to have a single Canadian policy
36.4 Expansion of JR (a) New grounds for review Before 1982 JR in Canada was for the most part confined to federalism grounds, since 1982 JR can also be based on Charter grounds JR under Charter involves a MUCH higher component of policy (b) Vagueness of concepts Meaning of vague phrases has to be determined by the courts THUS judges influenced by own social, economic and political views
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American Court’s rejection of Lochner and the other “substantive due process @ cases is sometimes described as the “constitutional revolution” of 1937 which brought an end to judicial activism Then in the 50’s the Warren Court decisions vindicated values then current among American liberals, whereas those of the Lochner era vindicated values then current among American conservatives JR on Charter grounds RARELY defeats a desired legislative objective in that the mechanisms of Ss. 1 and Ss. 3 typically leave room for the law to be replaced with another version that still carries out the legislative objective
(c) Role of Ss. 1 Section 1 implicitly authorizes the courts to balance the guaranteed rights against competing societal values. Section 1 provides: Rights and freedoms in Canada o 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.
Because of Ss. 1, JR of legislation under the Charter is a two-stage process: 1. Determine whether the challenged law derogates from a Charter right; if the law does so, then; 2. Determine whether the law is justified under Ss. 1 as a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society.
At the second stage, the court MUST decide whether the enacting legislative body had made an appropriate compromise btw the civil libertarian value guaranteed by the Charter and the competing social or economic objectives pursued by the law.
(d) Role of Ss. 33 Section 33, an override power, enables Parl’t or a Legislature to enact a law that will override the guarantees in Ss. 2 (expression) and Ss. 7 to 14 (legal rights) and Ss. 15 (equality) of Charter. All that is necessary is the enactment of a law containing an express declaration that the law is to operate notwithstanding the relevant provision of the Charter. Once enacted, the law that it protects will not be touched by the overridden provision of the Charter. Override power does NOT extend to Ss. 305 (democratic rights), Ss. 6 (mobility), Ss. 16 to 23 (language rights) or Ss. 28 (sexual equality). Any judicial decision could be overcome by the re-enactment of the invalid statute coupled with a declaration of override much to be said that elected legislative bodies left with last word – addresses concerns of legitimacy of JR by unelected judges
36.5 Dialogue with legislative branch (a) The idea of dialogue Prohibition of English in commercial signs that was struck down as a breach of freedom of expression was revived by the Quebec Legislature, Ford v Que 1988 – Ss. 33 invoked SC struck down a prohibition on the advertising of tobacco products, but made it clear that a more limited law, confined to “lifestyle advertising” or advertising directed at children would be upheld: RJR-MacDonald v Can [1995] The search and seizure provisions of the federal Competition Act have been struck down as unreasonable under Ss. 8, BUT have been revived with ancillary safeguards for a req’t of a warrant to be issued by a judicial officer: Hunter v Southam [1984] (b) Second look cases R v O’Connor [1995] – Sexual Assault Case The SC laid down procedures for disclosure to the accused of confidential records that tried to draw a balance btw the accused’s right under Ss. 7 to make full answer and defence (which called for disclosure) and the complainant’s rights under Ss. 8 to privacy and under Ss. 15 to equality (which called for confidentiality). After the decision in O’Connor, Parl’t enacted the 1997 statutory regime for the disclosure of confidential records in sexual assault cases. In R v Mills, this subsequent legislation was subject to a “second look”. R v Mills [1999]
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The statutory regime was significantly more restrictive of disclosure than the procedures laid down by the Court in O’Connor, so that there was the likelihood that in some cases records that the Court in O’Connor had assumed would be needed by the accused in order to make full answer and defence would be withheld in the interests of the privacy and equality rights of the complainants. The statute contained a lengthy preamble, reciting Parliament’s concern with the prevalence of sexual violence against women and children and the risk that the reporting of incidents of sexual violence would be deterred by the compelled production of records revealing personal information about complainants. (clearly inserted with a view to bolstering a Ss. 1 justification) The 1997 Act was upheld, BUT the Court did not rely on Ss. 1 to uphold the statute. Instead the Court repeatedly invoked the concept of dialogue as a reason for deferring to Parl’t judgment – not its judgment about legislative objective and other elements of Ss. 1 justification, BUT its judgment as to where to draw the appropriate line between the competing rights. McLachlin and Iacobucci JJ stated that O’Connor was “not necessarily the last word on the subject” and that “the law develops through a dialogue between the courts and legislatures” The Court pointed to a long process of consultation that had preceded the enactment of the statute, which had allowed time for Parl’t to consider the constitutional standards laid down in O’Connor and also to consider how well they were working in practice. The Court described this process of consultation as “a notable example of the dialogue between the judicial and legislative branches discussed above” What the Court in O’Connor had regarded as “preferable” was NOT a “rigid constitutional template” and “did NOT preclude Parl’t from coming to a different conclusion” Court concluded that, although the statute did NOT place as much weight on the accused’s Ss. 7 right to make full answer and defence as had the majority in O’Connor, in light of Parl’ts careful deliberative process, statute should be upheld as providing sufficient protection for the Ss. 7 right.
The idea of dialogue indicates that when Parliament (or a Leg) has revised and re-enacted a law that the courts have found unconstitutional, the Court is likely to uphold the second attempt. HOWEVER, in 2 cases in 2002, the Court divided on the degree of deference to give to a second try: 1. R v Hall [2002] 3 SCR 309; and 2. Sauvé v Canada [2002] 3 SCR 519. R v Hall (2002) nd 2 attempt by Parl’t to define grounds for denying bail to an accused person in custody. In R v Morales [1992] SC had struck down a provision of the Criminal Code that authorized the denial of bail when the continued detention of an accused person was “nec. in the public interest”. The Court in Morales held that the phrase was TOO vague to satisfy Ss. 11(e), which prohibited the denial of bail without just cause. Parlt’ then replaced the law with a new provision that authorized the denial of bail “on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice …” In Hall, SC unanimously held that the phrase “on any other just cause being shown” was (like its predecessor) unconstitutionally vague. But the Court divided 5:4 on the validity of the more specific ground, “to maintain confidence in the administration of justice”. McLachlin CJ (majority) upheld the provision as being sufficiently precise. She pointed out that Parl’t had taken into account the Court’s reasons in Morales, which she described as “an excellent example of the constitutional dialogue between the courts and Parl’t However Iacobucci J (minority) held the language was still unconstitutionally vague. Although Parliament had responded to Morale, “it has not done so with due regard for the constitutional standards set out in that case” Sauvé v Canada (2002) 2nd attempt by Parl’t to impose voting disqualifications on prisoners. In Sauvé v Can [1993], SC struck down a provision of the Canada Elections Act that disqualified all persons serving prison sentences from voting in federal elections. o It held that disqualification infringed right to vote in Ss. 3 and Ss. 1 did NOT justify Parliament then amended the legislation to narrow the disqualification to prisoners serving a sentence of =/> 2 years.
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The gov’t conceded the infringement of Ss. 3, leaving the issue of whether the infringement was justified under Ss. 1 to the Court. The Court divided 5:4; majority held that the law was NOT justified under Ss. 1 McLachlin CJ (majority, which included Iacobucci J) described the right to vote as “fundamental to our democracy” and of “special importance”. Any limits on the right “require not deference, but careful examination” “The healthy and important promotion of a dialogue between the legislature and the courts should NOT be debased to a rule of ‘if at first you don’t succeed, try, try again’.” She described the reasons given by Gov’t for limiting the right (enhancing civic responsibility, promoting respect for the law and strengthening the criminal sanction) as merely “symbolic”, “abstract” and “rhetorical”. She concluded that there was no pressing and substantial objective that would justify limiting the right. Concluded: ALL persons serving prison sentences MUST be given right to vote, notwithstanding that Parl’t had made a clear choice, informed by the Court’s previous decision, to limit the right. Gonthier J (minority) invoked the concept of dialogue to argue that the Court should defer to Parlt’s judgment as to what was a reasonable limit on the right to vote. Once Parl’t had debated that issue, the dialogue metaphor suggested that the Court should not substitute its view for Parlt’s reasonable choices among social and political philosophies. This was a case where the Court should “let Parl’t have the last word”
Canada v JTI-Macdonald Corp [2007] 2nd attempt by Parl’t to ban the advertising of tobacco products. The first Act had been struck down by the Court in RJR-Macdonald v Can [1995] as a breach of freedom of expression that was too sweeping to satisfy the minimum-impairment of Ss. 1 The 2nd Act took up suggestions from the RJR reasons that information advertising and brand preference advertising should be excepted from the general ban and that “lifestyle” advertising and advertising designed to be appealing to young person should be specifically targeted. These changes to the original Act led the Court to hold that the minimum-impairment branch of Ss. 1 justification was now satisfied. In 2007, McLachlin CJ (for the Court) said that “the mere fact that the legislation represents Parl’t response to a decision of this Court does NOT militate for or against deference” HOWEVER, she described the 2nd Act as “a genuine attempt by Parl’t to craft controls on advertising and promotion that would meet its objectives as well the concerns expressed by the majority of this Court in RJR” (c) Remedial discretion Starting in 1985, the SC occasionally suspended the operation of a declaration of invalidity for a period of 6/12/18 months in order to allow competent legislative body time correct. Schachter v Canada [1992] SC said that it would only be prepared to grant a temporary period of validity to an unconstitutional law in 3 circumstances, where immediate striking down of the law would: 1. impose a danger to the public; 2. threaten the rule of law; or 3. result in the deprivation of benefits from deserving persons. These circumstances were present in most of the cases in which suspensions had been ordered before Schachter. After Schachter, however, the Court has frequently ordered the suspension of declarations of invalidity in circs that do NOT fit that criteria. Now a dialogue rationale has supplanted the emergency rationale as a sufficient basis for the suspension of a declaration of invalidity. Corbiere v Canada [1999] SC suspended for 18 months a declaration that the on-reserve residence requirement for voting in Indian Act band elections was unconstitutional. L’Heureux-Dubé J pointed out there were a # of ways in which the constitutional defect could be repaired and the BEST sol’n would be one designed by Parl’t after consultation w/ aboriginals
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Democracy should guide the exercise of the Court’s remedial discretion and that principle “encourages remedies that allow the democratic process of consultation and dialogue to occur”
Judicial respect for the autonomy of OTHER branches of gov’t, which underlies the suspended declarations of invalidity, also for restraint in crafting orders to compel the executive to rectify breaches Canada v Khadr [2010] SC granted declaration that applicant’s rights (Ss. 7) had been infringed without any specific remedial order so as to leave the gov’t “a measure of discretion in deciding how best to respond”. The trial judge’s supervisory order in Doucet reflected a high degree of distrust of the executive branch and the majority of the SC SHARED mistrust… Doucet-Boudreau v Nova Scotia [2003] 3 SCR 3 CASENOTE AT END OF LANGUAGE RIGHTS CHAPTER Hogg 36-18.1 INSERT FINALISED PAGE REFERENCE (d) Dialogue within gov’t “Dialogue” above is given an artificial meaning simply a metaphor in that NO actual dialogue between judiciary and executive. o RATHER Court issues judgments and gov’ts take action in order to salvage legislation Laws are RARELY struck down – in that gov’t at all levels, regardless of political affiliation, want to comply with the Charter One role of the Ministry of AG or Department of Justice is that lawyers examine all legislative proposals and provide risk assessment Long tradition that AG upholds the ROL and as such under a duty to provide objective legal advice in order to make SURE that gov’t action complies with the Charter.
36.5 Political questions
In the US, there have been occasional refusals to decide cases on the basis of a “political questions” doctrine. Whatever the position in the US, it is clear that there is NO political questions doctrine in Canada.
Operation Dismantle v The Queen [1985] A peace organization brought an action for a declaration that the Canadian gov’ts dec’n to permit the US to test its air-launched “cruise missile” in Canada was a violation of the Charter of Rights. SC struck out the statement of claim as disclosing no cause of action. SC held that the federal gov’t was acting within its constitutional powers in permitting the tests and that NO prohibition in the Charter (or elsewhere in the Constitution) applied to the tests. Wilson J said there was NO doctrine of political questions in Canadian constitutional law. IF a case raised the q’s whether executive or legislative action violated the Constitution, THEN the q’s HAD to be answered by the Court, regardless of the political character of the controversy. Re Canada Assistance Plan [1991] The question whether the Parl’t of Canada could place a 5% cap on the growth of its payments to the provinces under open-ended cost-sharing agreements was (at least to provincial politicians) a controversial political question in 1990, when the policy was announced in the federal budget. 4 provinces challenged the policy and the federal gov’t argued that the issue was a purely political one that was not suitable for judicial determination. However, the reference to the Court was a legal one: did the Constitution contain any prohibition on the unilateral introduction and enactment of legislation to curb spending by the federal gov’t under shared-cost agreements with the provinces? SC held that there were NO prohibitions in CC that would preclude the proposed legislation. IF the Court had been asked whether the federal Parl’t should as a matter of policy reduce its contributions to provincial social programmes – THIS would of course not be answered, either because it’s political or because the question is not one of law.
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Secession Reference [1998] Political – BUT also legal – how the CC would govern the secession of a province. SC held, under the Constitution, a secession could be accomplished only in compliance with the amending procedures of the CC and procedures precluded a unilateral secession by a province. SC also held that int’l law would give the same answer as domestic constitutional law, namely, that secession by unilateral act was unauthorized.
36.6 Characterization of laws (a)Comparison with federalism review In Charter cases, 2 issues MUST be resolved in every case: 1. The characterization of the challenged law requires an examination of the purpose or effect of the challenged law to determine whether it limits a Charter right; and 2. The meaning of the asserted right – requires an examination of the language of the Charter to determine whether it has been limited by the challenged law. With federalism review: 1. the Courts attempt to ascertain the “matter”/ “pith and substance” of a challenged law; and 2. to classify the matter into a head of power.
In Charter cases: IF the effect of a law is to abridge a Charter right, THEN it will be unconstitutional (unless saved by Ss. 1), even if the purpose of the law was entirely benign and constitutional. In federalism cases: effects on matters outside the jurisdiction of the enacting legislative body are tolerated so long as the purpose (“matter”/”pith and substance”) of the law is within the jurisdiction of the enacting body. (b) Purpose or effect R v Big M Drug Mart [1985] 1 SCR 295 A law will offend the Charter if EITHER its purpose OR its effect is to abridge a Charter right SC held that the federal Lord’s Day Act, which prohibited commercial activity on a Sunday, abridged the guarantee of freedom of religion in Ss. 2(a) of the Charter. The history of the Lord’s Day Act established that its purpose was the religious one of compelling the observance of the Christian Sabbath. That purpose was an abridgement of freedom of religion, which invalidated the legislation. It was NOT necessary to consider whether the effect of the legislation was to abridge freedom of religion, b/c “effects can NEVER be relied upon to save legislation with an invalid purpose” R v Edwards Books and Art [1986] Province enacted a Sunday-closing law that prescribed holidays for retail business. SC held that the history of this law established its purpose was the secular one of prescribing a uniform pause day for retail workers. Therefore, the law passed the purpose test. However, the Court went on to consider the effect of the law and the majority held that the effect of the law was to impose a burden on those retailers whose religious beliefs required them to abstain from work on a day other than Sunday. That effect was an abridgement of freedom of religious. Therefore, this Sunday-closing law also abridged the Charter right. However, a majority relied on the benign purpose of the law to uphold it under Ss. 1
Canadian legislative bodies rarely enact laws that have the purpose of abridging a Charter right. The Lord’s Day Act is the ONLY law to fail the purpose test in the SC. The purpose of a law is normally benign (as it was in Edwards Books) and the breach of the Charter is an incidental effect of the pursuit of the purpose.
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Here, the law may satisfy the justificatory standard of Ss. 1, in which case the law will be upheld as a reasonable limit that is demonstrably justified in a free and democratic society (as was the outcome in Edwards Books).
(c) Trivial effects R v Jones [1986] Accused charged w/ breach of Alberta’s School Act, b/c instead of sending his children to school he was homeschooling at fundamentalist church of which he was pastor. Alberta’s School Act made liberal provision for alternative schooling, BUT it did require that the accused obtain from the province’s Department of Education EITHER approval of his basement operation as a private school OR approval in the form of a certificate of efficient instruction for parental education. Accused refused to apply for either of these approvals, b/c he claimed that it was contrary to his religion to request the State for permission to do what was God’s will. Wilson J (majority) held that the Act did NOT violate freedom of religion. Where the effect of a law on a Charter right was “trivial or insubstantial”, there was NO breach of the Charter and that was the case here La Forest J (minority) held that the Act did violate freedom of religion in requiring the accused to apply to the State for permission to educate his children. However, he upheld the Act under Ss. 1 Trivial effects – Beetz and McIntyre JJ – any retailer who observed a Sabbath placed him/herself at a competitive disadvantage which would exist even if there was no Sunday-closing law. The Sunday-closing law removed that disadvantage from those retailers who observed Sunday as their Sabbath, but that preference for Sunday-observers did not affect the practices on non-Sunday observers. However, Dickson CJ’s answer (for the majority) was that the Act, by relieving the Sunday observers of any financial penalty, exacerbated the competitive disadvantage of non-Sunday observers (at 765). After referring to Jones (see below), he held that this increase in competitive advantage caused by the Act was not “insubstantial or trivial” (at 766). (d) Severance In R v Big M Drug Mart (1985), entire statute (Lord’s Day Act) was struck down. In no other Charter case has the entire statute been struck down. In other cases, only one or a few provisions were infected; those provisions were “severed” form the rest of the statute, enabling the rest of the statute to survive. (e) Reading down Where the language of a statute will bear two interpretations, one of which would abridge a Charter right and one of which would not, the Charter can be applied simply by selecting the interpretation that does not abridge the Charter right.
36.8 Interpretation of Charter (a) Progressive interpretation Best expressed in Edwards v A-G Can [1930] AC 124, 136 – a Constitution is “a living tree capable of growth and expansion within its natural limits” per Lord Sankey. From a practical point, it is simply inevitable that judicial interpretations will change with changing societal values THUS proving the difficulties with originalism (as advocated for in the US) Hogg’s view that a continuing review by the courts of their former interpretations of the Constitution is ESSENTIAL if a bill of rights is not to become a force of reactionary conservatism (b) Generous interpretation Edwards per Lord Sankey – the provisions of the CA, 1867 should NOT be “cut down” by “a narrow and technical construction”, BUT should be given “a large and liberal interpretation” In the context of federalism, the large and liberal interpretation is the course of judicial restraint; it tends to uphold challenged legislation, reinforcing a presumption of constitutionality. On the other hand, the Charter does NOT confer power on the Parl’t or Leg; it denies power. The justification for a generous interpretation of the Charter is instead that it will give full effect to the civil liberties that are guaranteed by the Charter. This was the approach in A-G Que v Blaikie [1979], where SC gave broad interpretation to Ss. 133 of CA, 1867, the language guarantee that is one of few bill of rights provisions in 1867 Act. Re the Charter – it calls for “a generous interpretation, avoiding what has been called ‘the austerity of tabulated legalism’, suitable to give to individuals the full measure of the fundamental rights and freedoms
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referred to”: Min of Home Affairs v Fisher [1980] AC 319, 328 quoted in Hunter v Southam [1984] 2 SCR 145, 156 R v Oakes [1986] Court decided to prescribe a single standard of Ss. 1 justification for ALL rights, to make that standard a high one and to cast the burden of satisfying it on the gov’t. Hogg argues however, that b/c the Courts seem to have taken a broad approach as to the scope of rights protected by the Charter (that every communicative act, no matter how trivial, false or harmful, enjoys constitutional protection) then it is inevitable that the Court will relax the standard of Ss. 1 justification. Examples: SC held that advertising is constitutionally protected, BUT has sustained provincial regulation of advertising directed at children, despite weak case of Ss. 1 justification: Irwin Toy v Que [1989] Soliciting for the purpose of prostitution is protected by the Constitution, BUT the CC has been upheld under Ss. 1, although the case for justification was weak: Re Ss. 193 and 195.1 of Crim Code [1990]; Prohibition on hate propaganda upheld under Ss. 1: R v Keegstra [1990] 3 SCR 697 Prohibition on obscenity upheld under Ss. 1: R v Butler [1992] 1 SCR 452 Tort of defamation upheld under Ss. 1: Hill v Church of Scientology [1995] 2 SCR 1130 Prohibition on nude dancing upheld under Ss. 1: Re Koumoudouros (1984)
(c) Purposive interpretation The purposive approach involves an attempt to ascertain the purpose of each Charter right and then to interpret the right so as to include activity that comes within the purpose and exclude activity that does not. The effect of a purposive approach is normally going to be to narrow the scope of the right This approach works with a stringent standard of justification under Ss. 1. Once a right has been confined to its purpose, a gov’t ought to have to satisfy a stringent standard of justification to uphold legislation limiting the right. (d) Process as purpose Hogg argues against a process-based theory to interpreting the Charter. o Broader Charter guarantees are inescapably substantive, OR have been interpreted to be so; o ONLY a few are truly supportive of the democratic political process o Legal rights are guarantees, although procedural in form, are ULTIMATELY directed to the substantive goal of respect for individual liberty, dignity and privacy
The Charter does NOT require the courts to test the substantive outcomes of the political process against some theory of the right or the good; RATHER, the Charter guarantees the integrity of the political process itself by enhancing the opportunities for public debate and collective deliberation
[Advantage that process-based theory of JR offers a solution to the problem of legitimacy of JR o The judges need NEVER take positions on controversial substantive issues, b/c the constitution does NOT address such issues o Judges are concerned with is the FAIRNESS of the process by which legislative bodies reach their decisions]
(e) Hierarchy of rights Section 33 (override provision) creates 2 tiers of rights: 1. The “common rights” that are subject to override; and 2. The “privileged rights” that are not.
One right, Ss. 28 (sexual equality) may even be exempt from the limitation of power of Ss. 1 as well as the override power; that places Ss. 28 at the top of the hierarchy. Aboriginal and treaty rights, guaranteed by Ss. 35, are similarly privileged in that they are outside the Charter (NOT subject to Ss. 1 or Ss. 33); HOWEVER, because outside the Charter, they do not benefit from the remedies for breach of treaty Ss. 24. The hierarchy is irrational, but not surprising given it is a politically negotiated document.
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(f) Conflict between rights The hierarch does not imply that the “privileged rights” MUST take priority over the “common rights” when they come into conflict.
Two provisions contemplate conflict btw rights: 1. Ss. 25, which recognizes that aboriginal and treaty rights may be regarded as in conflict with the equality guarantee and provides that aboriginal and treaty rights are to prevail; 2. Ss. 93, the denominational school rights (available to people who are defined by their religion) and the equality rights of Ss. 15 – Ss. 29 recognizes possibility of conflict and provides that the denomination school rights are to prevail.
BC Gov’t Employees’ Union v BC [1988] Chief Justice of BC issued an injunction against a union to prohibit its members picketing the courthouses. Union applied to have the injunction set aside, invoking their members’ right to freedom of expression. The gov’t supported the injunction, invoking a right of access to the courts which is NOT mentioned in the Charter, BUT which it was argued is implied by the fact that the Charter is enforced through access to the courts. SC unanimously upheld the injunction. Dickson CJ (majority) – the Charter did guarantee a right of access to the courts, but he did not explicitly recognize that he was faced with a conflict btw 2 rights; he held that the injunction was a limit on freedom of expression justifiable under Ss. 1 McIntyre J (concurring opinion) held that a right of access to the court was “Charter-protected”; therefore the injunction could not be a breach of freedom of expression; he thus assumed that freedom of expression should give way to the more specific right of access to the courts.
R v Keegstra (1990) A person accused of wilfully promoting hatred against a racial group (Jews), an offence under the Criminal Code, attacked the offence as an abridgement of freedom of expression The prosecution argued that the CC provision, by protecting racial groups from hateful messages, furthered the values of racial equality (in Ss. 15) and multiculturalism (in Ss. 27) that were also recognized by the Charter. SC majority upheld the CC provision. Dickson CJ followed the same approach as in BCGEU, holding that the provision did abridge freedom of expression and the rights invoked in support of the legislation were relevant only through Ss. 1; he held that the law was justified under Ss. 1 McLachlin J (dissent) agreed that the values of equality and multiculturalism were of relevance only through Ss. 1; she held that the law was not justified under Ss. 1, not because equality and multiculturalism should be subordinated to freedom of expression, BUT because the hate propaganda law was neither rational nor a least drastic means of suppressing racism. Only McIntyre J in BCGEU took the position that the scope of a right should be narrowed to accommodate the exercise of another right, i.e. “mutual modification”. This works in federalism cases, BUT the Court has rejected this approach in Charter cases: see Keegstra at 755-758 and 833-837 When other rights are invoked in support of a challenged law, the conflict is to be resolved by application of the justificatory principles of Ss. 1 BUT definitional balancing did occur in R v O’Connor (1995) Issue: whether and how an accused in a sexual assault case should be able to gain access to the counselling and medical records of the complainants (or other witness). The records sought were not held by the Crown and were not part of the Crown’s case; the records were in the possession of the persons and institutions that had provided the therapeutic counselling. Here, there was no law to be challenged or supported. The Court had to establish the common law principles which would strike the proper balance btw the accused’s right (under Ss. 7) to full answer and defence and the witness’s right (under Ss. 7 or 8) to a reasonable expectation of privacy. The majority considered how privacy rights could be accommodated to “reasonably limit” full answer and defence; the minority considered how the right to a fair trial could “demonstrably justify” limits on privacy
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BOTH the majority and minority set up procedures for an application to the trial judge for disclosure of TP records and stipulated the factors to be weighed by the judge in determining whether to make an order for disclosure. The effect of the decision is to narrow the scope of one Charter right to accommodate the exercise of another (even though the SC employed the language of s 1).
In R v Mills (1999) the majority was explicit that they were engaging in definitional balance: “the first question to ask is how to define full answer and defence, privacy and equality in this context, and not how they may justifiably be limited” (at [68])
36.9 Sources of interpretation (a) Pre-Charter cases Few cases before Charter that will be relevant Court has consistently departed from previous decisions interpreting language in the Bill of Rights which is similar to language in the Charter The cases interpreting the distribution of powers provisions of the CA, 1867 will usually be irrelevant to the interpretation of the Charter. (b) American cases SC of US decisions interpreting language similar to the language in the Charter are useful precedents However, the SC is to “be wary of drawing too ready a parallel between constitutions born to different countries in different ages and in different circumstances”: R v Rahey [1987] 1 SCR 598, 639; Keegstra (1990) at 740 Where the Canadian Court has departed from American precedents, it has usually been to give a broader interpretation to the rights in the Charter. One reason for this is the presence of Ss 1. It is an important difference btw the two constitutions and one that suggests a broader scope for the guaranteed rights in Canada: Re BC Motor Vehicle Act [1985] The presence of Ss. 33 (override) probably also tends in the same direction. An overly broad application of the Charter can be overcome by an ordinary statute containing a notwithstanding clause. (c) International sources International Covenant on Civil and Political Rights not incorporated into Canada’s domestic law. However, the terms of the Covenant are relevant to the interpretation of the Charter, by virtue of the rule that a statute (and presumably a constn) should be interpreted as far as possible into conformity with int’l law: Re Powers to Levy Rates on Foreign Legations [1943] Customary (non-treaty) int’l law can occasionally serve as an aid to interpretation of the Charter R v Hape [2007] Did the Charter apply to the investigations of Canadian police in a foreign country (the Turks and Caicos Islands)? Section 32 makes clear that the Charter applies to Canadian gov’t officials (including police officers) BUT Ss. 32 is silent on the issue of territoriality. Majority (per LeBel J) held that Ss. 32 should be interpreted into conformity with applicable principles of customary int’l law, of which the MOST relevant principle was that of “respect for the sovereignty of foreign states” While respect for the sovereignty of foreign states did NOT preclude Parl’t from making laws w/ extraterritorial effect, it did preclude Canada from enforcing its laws in territory of a foreign state. LeBel J took the view that it would be tantamount to enforcing a Canadian law in a foreign state if the Court were to hold that the Charter applied to searches and seizures in the Turks and Caicos Islands by Canadian police who were looking for evidence of Canadian crime (money laundering of drug proceeds). The Canadian police were working with the consent and cooperation of the Turks and Caicos police and in compliance with Turks and Caicos law, which was not, however, fully consistent with Charter norms. Court concluded that Ss. 32 should be interpreted as confining the application of the Charter to actions taken by Canadian actors inside the boundaries of Canada (“Since extraterritorial enforcement is not possible and enforcement is necessary for the Charter to apply, extraterritorial application of the Charter is impossible.”) (d) Legislative History IS admissible
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36.10 Priority btw federal and Charter grounds
As argued in chapter 15, federal ground is more fundamental of the two and that ought to take priority over the Charter ground (in cases of challenges to laws on both federal and Charter grounds).
36.11 Commencement of Charter
Section 58 – CA, 1982 is to come into force on a day to be fixed by proclamation. Proclamation issued on 17 April 1982 and that date was fixed as the date the Act was to come into force. The Charter of Rights accordingly came into force on 17 April 1982 and operates only prospectively from that date. A statute (or regulation, by-law or other legislative instrument) which was enacted before 17 April 1982 and which is inconsistent with the Charter will be rendered “of no force or effect” by the supremacy clause of the Constitution, BUT only as from 17 April 1982: R v Stevens [1988] 1 SCR 1153 Mack v Canada (2002) An attempt made to seek redress under the Charter for the federal Chinese Immigration Acts that were in force from 1885 to 1923. o These laws imposed a “head tax” on persons of Chinese origin upon entering Canada and made it very difficult to immigrate to Canada from China. o Claimants included people who had actually paid the head tax; others were descendants of persons who had paid the head tax or suffered in other ways from the laws. o They sought the return with interest of the head taxes paid and damages. o Ontario CA acknowledged that the laws discriminated on the ground of race and would today offend the Charter. o BUT the laws were repealed in 1923. Since the laws were not in force at the commencement of the Charter, those whose rights were denied by the laws had no remedy under the Charter.
Action of an executive or administrative kind, such as search, seizure, arrest or detention, which was taken before 17 April 1982, cannot be a violation of the Charter, because the Charter was no in force at the time of the action: R v James [1988] 1 SCR 669 No remedy under Ss. 24(1) would be available in respect of action taken before 17 April 1982, because the remedy is available only to anyone whose rights or freedoms, “as guaranteed by this Charter”, have been infringed or denied Even Ss 24(2) (exclusion of evidence) would not apply to evidence which, although tendered after 17 April 1982, was obtained before that date; Ss 24(2) applies only to evidence “obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter” and no rights or freedoms were guaranteed by the Charter until 17 April 1982. HOWEVER, some events occurring before 17 April 1982 are relevant. E.g., Ss 13, which provides that a witness who testifies in any proceedings has the right not to have any incriminating evidence that the witness may have given in earlier proceedings used against him/her in the later proceedings. In Dubois v The Queen [1985], SC held that this right takes effect at the time of the later proceedings, when the Crown seeks to use the incriminating testimony from the earlier proceedings. Therefore, the right can be invoked even if the earlier proceedings took place before 17 April 1982, provided that the later proceedings took place after 17 April 1982. This is the same for double jeopardy (Ss. 11(h): Corp Professionnell des Médecins v Thibault [1988] 1 SCR 1033 Also, Ss 11(b), which guarantees the right “to be tried within a reasonable time”. A period of delay occurring before 17 April 1982 should be taken into account in determining whether a person, whose trial had still not occurred by a date after 17 April 1982 has been denied the right to be tried within a reasonable time: R v Antoin (983) 41 OR (2d) 607, 613 (CA) Also, Ss 12 (cruel and unusual punishment) – where a person was sentenced to a cruel and unusual punishment before 17 April 1982, but the sentence continued after that date, the continuation of the sentence would constitute a breach of Ss 12: Re Mitchell and the Queen (1983) 42 OR (2d) 481 (HC) Benner v Canada [1997] A section of the federal Citizenship Act provided for the citizenship of children born outside Canada of Canadian parents. For children born before 1977, the Act distinguished btw those born of a Canadian father who were automatically eligible to register as citizens and those born of a Canadian mother, who had to apply for citizenship, which involved passing a security check.
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Benner had been born in 1962 to a Canadian mother and an American father. In 1987, when he applied for Canadian citizenship, the required security check revealed that he had been charged with a murder (he subsequently pleaded guilty to manslaughter) and he was refused citizenship. Had his father (instead of his mother) been the Canadian citizen, he would have had an automatic right to register as a citizen regardless of his criminal record. He brought proceedings to quash the refusal of citizenship on the ground that it was a breach of his equality rights to treat the children of Canadian mothers differently than the children of Canadian fathers. The trial judge and Federal CA held that the Charter did not apply, because his complaint related to the circumstances of his birth, which had occurred 20 years before the Charter came into force in 1982. SC allowed his appeal. Unanimous Court (per Iacobucci J) held that the better way to characterize his complaint was in terms of a status or condition that imposed a disadvantage on him that persisted after 1982. The discrimination occurred when the applicant was refused citizenship on the basis of that status and the refusal took place in 1987. Therefore, the applicant was entitled to challenge the refusal of citizenship under the Charter. Held, there was a breach of his equality rights and he was successful in challenging the decision and the statutory provision that underlay it.
36.12 Undeclared rights
Section 26 provides as follows: Other rights and freedoms not affected by Charter 26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada
Rights or freedoms protected by the common law or by statute will continue to exist notwithstanding the Charter (e.g. Canadian Bill of Rights and provincial Bills of rights of Sask, AB and Que). Section 26 does not incorporate these undeclared rights and freedoms into the Charter or “constitutionalize” them in any other way. They receive no extra protection from the Charter. The undeclared rights can be altered or abolished by the action of the competent legislative body.
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CHAPTER
37: APPLICATION OF CHARTER
37.1 Benefit of Rights (a) The Issue
Who is entitled to the benefit of the rights guaranteed by the Charter? I.e. corporations???
(b) Everyone, anyone, any person o Sections 2, 7, 8, 9, 10, 12 and 17 open with the phrase “Everyone has the right” o In Ss. 11 and 19, “any person” is used o Section 20 uses “any member of the public” o Section 24 uses “anyone”
Likely these various terms are synonymous and that each is apt to include a corp as well as an individual However, some rights, although guaranteed to “everyone” or “any person” are by their very nature NOT available to a corporation, e.g.: o o
o
Ss. 7 (fundamental justice) does NOT apply to corp, b/c limited to deprivations of “life, liberty and security of the person”, attributes of individuals, NOT corporations: Irwin Toy v Que [1989] Ss. 9 (right not to be arbitrarily detained or imprisoned) and other rights that arise ONLY on “arrest or detention” in Ss. 10, as well as the right to reasonable bail in Ss. 11(e) CANNOT be enjoyed by a corp., because a corp. CANNOT be detained, imprisoned or arrested. A corp. cannot testify, so that the right of an accused not to be compelled to be a witness against him/herself in Ss. 11(c), the right against self-incrimination in Ss. 13 and the right of a witness to an interpreter in Ss. 14, are not available to a corporation.
Those rights that do not apply to corps cannot be invoked by a corp. to obtain a remedy under Ss 24.
R v Big M Drug Mart (1985) o o o o
Section 24 is available to “anyone”, which includes a corp. and can therefore be used by a corp. to enforce a right that does apply to a corp SC held a corp. could invoke the right to freedom of religion in Ss 2(a) as a defence to a criminal charge of selling goods on a Sunday. The charge was laid under the federal Lord’s Day Act, which the corp. successfully argued was unconstitutional on the ground that the Act abridged the freedom of religion of individuals. The corp. had standing to make this argument, despite the fact that Ss. 2(a) did NOT apply to a corp., because “no one can be convicted of an offence under an unconstitutional law”
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o o
The corp. was not seeking a remedy under Ss. 24. as a D to a criminal charge, the corp. was entitled to rely on any constitutional defect in the law This means that rights that do not apply to corps by their own terms may nevertheless operate to the benefit of corps.
Tremblay v Daigle [1989]
A foetus is not a legal person, either at common law or civil law, until the child is born by being separated alive from the mother. A foetus is not entitled to a right to life under Ss. 7 or any other right under the Charter
Singh v Minister of Employment and Immigration [1985] o o o o
Wilson J (3 of 6) held that anyone who entered Canada, however illegally, was instantly entitled to assert Ss. 7 rights (life, liberty and security of the person), which apply to “everyone”. Beetz J for the other 3 JJ decided the case under the Canadian Bill of Rights, which he assumed could also be invoked by anyone who succeeded in crossing a Canadian border. In this case, that meant that everyone who entered Canada and made a refugee claim was entitled to a hearing before a person with authority to decide the issue Suresh v Can *2002+ (“everyone” in Ss. 7 includes a refugee in Canada facing deportation)
R v Cook [1998] o o o o
Majority held that an American citizen, who was arrested and detained in the US, was entitled to the right to counsel under Ss. 10(b) of the Charter, which applies to “everyone”. It came before the SC because the detainee was later removed to Canada and tried for a murder allegedly committed in Canada. He successfully challenged the admissibility of a statement made in the US to Canadian police officers in violation of his right to counsel. L’Heureux-Dubé J for the minority stated majority had not directed their minds to the crucial first step of determining whether the person claiming a Charter right “is indeed the holder of a right under the Canadian constitution”; BUT she only flagged the issue, basing her dissent on other grounds.
(c) Individual o o o o o o o o
Section 15 confers its equality rights on “every individual”; it probably excludes a corp. Parliamentary committee substituted “individual” for “everyone” during Charter deliberations and the explanation for change was “to make it clear that this right would apply to natural persons ONLY” Within Ss. 15, the listed attributes are ALL personal characteristics of human beings, except for “national origin”, but that should probably be read down to exclude foreign corps. In 2 cases in the SC, corps have invoked Ss. 15, BUT the Court found against the equality claim on other grounds: Rudolf Wolff & Co v Can [1990]; Dywidage Systems v Zutphen Bros [1990] Lower courts have held that Ss. 15 does NOT extend to corps. Nevertheless, corps will still be able to rely on Ss. 15 as a defence to a criminal charge laid under a law that is invalid by virtue of unconstitutional discrimination against individuals: Big M Drug Mart. The word “individual” does NOT include a foetus “Individual” does NOT include the estate of a deceased individual, b/c “Ss. 15 rights dies with the individual”: Can v Hislop [2007]
(d) Citizen
Generally speaking, a person need not be a Canadian citizen in order to invoke Charter rights. Citizenship is a required qualification for SOME rights, which are conferred upon a “citizen”: o Voting rights (Ss. 3) o Mobility rights (Ss. 6); and o Minority language educational rights (Ss. 23) It is probably best to accept that citizenship means what it is in the federal statute, even though the consequence of any change to that law would also change the scope of Ss. 3, 6 and 23.
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However, the Courts should review any amendment to the citizenship law to ensure that it is NOT simply a device to limit Charter rights. Probably does NOT apply to corp.
(e) Permanent resident
The mobility rights of Ss. 6(2) apply not only to “every citizen”, BUT also to “every person who has the status of a permanent resident of Canada” As it refers to a person who has “the status” of permanent resident Then the courts should interpret that term as meaning its statutory definition from time to time in the Immigration and Refugee Protection Act. Probably would not apply to corporation
37.2 Burden of Rights (a) Both levels of government
Section 32 of the Charter provides: Application of Charter 32. (1) This Charter applies:
(a) to the Parl’t and gov’t of Cdn in respect of all matters within the authority of Parl’t including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and gov’t of each province in respect of all matters within the authority of the legislature of each province.
Exception
(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.
Section 32 makes it clear that both levels of gov’t are bound by the Charter RECALL that the Canadian Bill of Rights ONLY applies to the Federal gov’t
(b) Parliament or Legislature
Any statute enacted by either Parl’t or a Legislature which is inconsistent with the Charter will be outside the power of (ultra vires) the enacting body and will be invalid The word “Parl’t” means the federal legislative body, which consists “of the Queen, an upper house styled the Senate and the House of Commons” (Ss. 17 CA, 1867) The word “legislature” means the provincial legislative body, which consists, in the case of Ontario, “of the Lieutenant Governor and of one house, styled the Legislative Assembly of Ontario” (Ss. 69 CA, 1867). These elements have their counterparts in the other 9 provinces as well.
New Brunswick Broadcasting Co v Nova Scotia [1993]
Was NS legislative assembly, who prohibited the televising of its proceedings, bound by Charter? Majority held that the word “legislature” in Ss. 32 should be interpreted as making the Charter applicable to a legislative assembly, even when the assembly acted independently of the L-G and was for that reason less than the full Leg…. Having held that the Charter applied to the legislative assembly of NS, the Court went on to hold by a majority that the power of the assembly “to exclude strangers” (including the TV media) from its deliberations was immune from Charter review! This result was premised on the theory that the parliamentary privileges that are needed to secure the orderly functioning of a legislative assembly (and which include the power to exclude strangers) are part of the “Constitution of Canada”. It followed that the Charter did NOT apply, b/c “one part of the Constitution cannot be abrogated or diminished by another”. Hogg argues this theory is wrong and the Charter should have been held to apply, BUT the exclusion upheld under Ss. 1
Legislative silence
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Vriend v Alberta [1998]
Plaintiff, who alleged he had been dismissed from his employment because he was a homosexual, challenged the Alberta human rights statute under Ss. 15 of the Charter. P argued that the constitutional defect was that the statute failed to prohibit discrimination in employment on the ground of sexual orientation. The gov’t of AB argued in response that the Leg had chosen not to deal with the issue and the Charter did not apply to a failure by the Leg to act. Cory J (for the Court) pointed out that the AB Leg had acted in the sense that it had enacted a prohibition on discrimination in employment that covered discrimination based on race, sex, religion, disability, national origin, marital status and other grounds. Having gone so far, the question was whether it was open to the Leg to deny to homosexuals the same protections that had been granted to other groups who suffered discrimination. Cory J held that this was a denial of equal benefit of the law and upheld the Charter challenge. IFAB had no human rights statute at all, or perhaps one that dealt only with discrimination on the basis of age (e.g.), THEN the Charter challenge would have failed at the threshold, because there would be no statute or other governmental act to which the Charter could apply. As a general proposition, Charter does NOT impose +ve duties to act on legislative bodies or gov’ts. BUT having enacted a relatively comprehensive statute providing redress for acts of discrimination, the Leg subjected itself to the Charter, including the obligation to cover everyone who, under Ss. 15, had a constitutional right to be included.
Legislative exclusion Dunmore v Ontario [2001]
Challenge to exclusion of agricultural workers from Ontario’s labour relations statute. Majority of SC rejected the equality guarantee of Ss. 15 as the basis for the challenge w/o reasons, but no doubt because employment status is not an analogous ground that is protected by Ss. 15 As for freedom of association under Ss. 2(d), while the statutory regime would obviously be much preferable for the workers, the difficulty was that previous decisions made clear that the constitutional freedom to associate did not require legislation and the mere exclusion from the statutory regime did not impair the agricultural workers’ freedom to organize at common law. Bastarache J (for majority) held that this was not a case where “no legislation had been enacted in the first place” The enactment of the labour relations statute provided the “minimum of state action” that was required for the invocation of the Charter Having gone this far, the Legislature was under a positive duty to extend the protections of labour relations law to those employee groups who could not otherwise successfully organize. The exclusion of the agricultural workers was a breach of Ss. 2(d) and the provision excluding them was severed. The workers were in no different situation than if the labour relations statute had never been enacted. This logic prevailed with Major J who dissented, but not with the majority.
(c) Statutory authority
Any body exercising statutory authority, e.g., the Governor in Council or Lieutenant Governor in Council, ministers, officials, municipalities, administrative tribunals and police officers, are also bound by the Charter. Since neither Parl’t nor a Legislature can itself pass a law in breach of the Charter, NEITHER body can authorize action which would be in breach of the Charter. The Charter applies to regulations, by-laws, orders, decisions and all other action (whether legislative, administrative or judicial) which depends for its validity on statutory authority. Despite the fact that a corp. is a creature of statute, it does NOT possess the coercive power of governance to which the Charter applies (simply permissive).
McKinney v U of Guelph [1990] 3 SCR 229; Stoffman v Vancouver General Hospital [1990] 3 SCR 483
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For this reason, the SC has held that the mandatory retirement policies of a university and a hospital are NOT reviewable under the Charter. Although the university and hospital were both established and empowered by statute, the bodies were not possessed of powers any larger than those of a natural person
Douglas/Kwantlen Faculty Assn v Douglas College [1990] 3 SCR 570 and Lavigne v OPSEU [1991]
If the bodies had been controlled by government, they would have been covered by the Charter
Examples of Charter application:
Municipal by-law, made under statutory authority, that purported to prohibit postering on municipal public property: Ramsden v Peterborough [1993] An arbitrator awarding a remedy for an unjust dismissal, when the arbitrator was exercising powers conferred by statute: Slaight Communications v Davidson [1989] Rules of the Law Society of Alberta, which purported to restrict the entry of out-of-province law firms to the legal profession in AB, something that required the exercise of statutory authority: Black v Law Society of Alta [1989] Automobile insurance policy that excluded common-law spouses from spousal accident benefits where the terms of the policy were stipulated by statute: Miron v Trudel [1995] A private person making a citizen’s arrest under statutory authority: R v Lerke (1986) (Alta CA)
Example where not applicable: Tomen v FWTAO (1989)
Rules of an organization that are binding on the members imply by virtue of their consent
In Hogg’s view, it is the exercise of a power of compulsion that makes the Charter applicable to bodies exercising statutory authority. However, the courts have occasionally deviated from this position. In Eldridge, it was held that the Charter was applicable despite the absence of any power of compulsion and in Bhindi and Lavigne it was held that the Charter was inapplicable despite the presence of a power of compulsion. Hogg argues these cases were wrongly decided.
***Eldridge v BC [1997]
The hospital did not provide sign-language interpretation for deaf person seeking medical services, an omission that would be a breach of Ss. 15 (equality guarantee) if it were made by an entity that was bound by the Charter. o [In the earlier case of Stoffman (1990), SC held that the Charter did not apply to the mandatory retirement policy of a hospital that required its doctors give up their admitting privileges when they reached the age of 65. o Although established and empowered by statute, and undeniably performing a public service, the hospital did not exercise any powers of compulsion in providing medical services (and it was not controlled by gov’t). Thus, hospital NOT bound by Charter.] BUT in Eldridge, La Forest J (for unanimous SC) pointed to BC’s Hospital Services Act, which funded the provision of hospital services, and held that the hospital was “implementing a specific gov’t policy or program” The case was different from Stoffman because Stoffman only decided that the Charter did not apply to the “day-to-day operations” of the hospitals; Stoffman did not decide what the position was when a hospital was implementing a specific gov’t policy or program
Eldridge v British Columbia (A-G) Facts
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Three deaf people who preferred sign language sought a declaration that the unavailability of funding for sign language interpreters in hospitals violated the Charter
Holding The Charter applies, and the plaintiffs’ Ss. 15 rights were violated. Reasons (LaForest J) “Charter applies to private entities in so far as they act in furtherance of a specific governmental program or policy” Charter does not apply to an entity that merely serves a “public function” Charter will apply o Where the entity is itself “government” for the purposes of Ss. 32, defined by the level of governmental control (Charter applies to everything the body does) o Where the entity is doing a “particular activity that can be ascribed to government”; depends on the nature of the activity (Charter applies to action only) “It is the government, and not hospitals, that is responsible for defining both the content of the service to be delivered and the persons entitled to receive it” there is a “direct and … precisely defined connection between a specific government policy and the hospital’s impugned conduct” Ratio Charter applies to entities’ actions where those actions carry out a governmental program The Charter may be found to apply to an entity on one of two bases. First, it may be determined that the entity is itself “government” for the purposes of s. 32. This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as “government” within the meaning of s. 32(1). In such cases, all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as “private”. Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. If the act is truly “governmental” in nature — for example, the implementation of a specific statutory scheme or a government program — the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.
Hogg argues this distinction is weak. Further that it seems implausible to characterize the provision of medical services by hospitals as an exercise of statutory authority, considering that the hospitals did not need any power conferred by statute to provide a full range of medical services – they were doing so long before funding under the hospital insurance program started
Re Bhindi (1986) 29 DLR (4th) 47 (BC CoA)
Considered whether a “closed-shop” provision in a collective agreement violated the guarantee of freedom of association in the Charter of Rights. A closed shop is workplace in which employer has agreed to hire ONLY members of the union. Majority, pointing out that the collective agreement was btw a private employer and the union, held that the collective agreement was a private contract to which the Charter did not apply. Hogg’s problem with this is (as was pointed out by the minority) that the closed-shop provision was not only expressly authorized by the applicable labour legislation, it would have been ineffective without the statutory authority. At common law, a contract is binding by virtue of the consent of the parties. A collective agreement that forces unwilling employees to join the union could not be effective through the common law of contract.
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In all jurisdictions, collective agreements are authorized by statute so that their terms and conditions will be binding on all employees in the bargaining unit, including those who do not agree with the terms and conditions. The terms and conditions of a collective agreement thus have a coercive force that goes beyond what could be achieved in a common law (or civil law) contract. Therefore the terms and conditions of a collective agreement should be subject to the Charter
Lavigne v OPSEU [1991] 2 SCR 211
SC considered whether an “agency-shop” provision in a collective agreement violated the guarantees of freedom of expression and association in the Charter. Agency shop is a workplace in which all employees are not required to join the union (as is the case in a closed shop or a union shop), BUT all employees are required to pay dues to the union. SC held that the Charter applied, because the employer was an agent of the provincial gov’t, which made the collective agreement a governmental act. Court seemed to be unanimous that, if the employer had not been a part of gov’t, then the collective agreement would be a private contract to which the Charter would not have applied. La Forest J for the majority, after referring to Bhindi w/ approval, said that the fact that the provision for the compulsory payment of dues was authorized (but not required) by statute did not make the Charter applicable. He said that the “parties to collective agreement negotiations would be free to agree to *the agency shop provision] independently of any legislative ‘permission’” With respect, La Forest J is correct that the Charter should not become applicable by virtue of permissive statutory authority which grants power no greater than would be possessed by a natural person anyway. But that is not this case. Without statutory authority, an obligation to pay union dues could be created ONLY by the agreement of the employee. In Hogg’s opinion, it is clear that the dissident employee was being subjected to a statutory power of compulsion as surely as if the statute had directly ordered him to pay the dues.
(d) Amending procedures
Those amending procedures that require the concurrence of several legislative houses (under Ss. 38, 41, and 43) are NOT constrained by the Charter. However, the limited powers of amendment that are possessed by the federal Parl’t alone (under Ss. 44) and by each provincial Leg alone (under Ss. 45) ARE constrained by the Charter.
(e) Government
Gov’t sometimes acts under prerogative powers, which are common law powers possessed ONLY by gov’t, e.g., when gov’t awards honours, issues passports or conducts foreign affairs. Gov’t also acts under common law powers that are possessed by everyone, e.g., when gov’t enters into contracts or buys or sell property. The references in Ss. 32 to “government” will make the Charter applicable to governmental action taken under both kinds of common law powers.
Examples:
SC held that the Charter applies to expression that takes place on government-owned property, such as airports and streets SC held that the Charter applies to a cabinet decision taken under the prerogative to allow the US to test its cruise missile in Canada: Operation Dismantle v The Queen (1985) SC also applied the Charter to the making by a Crown agent of a contract of employment with its employees: Douglas/Kwantlen Faculty Assn v Douglas College [1990] o La Forest J said: “To permit government to pursue policies violating Charter rights by means of contracts or agreements with other persons or bodies CANNOT be tolerated”
What is included in the term “gov’t”?
Obviously, Governor General in Council, Lieutenant General in Council, cabinet, ministers, public servants
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Also Crown corporations and public agencies that are outside formal departmental structure, BUT, by virtue of substantial degree of ministerial control, are deemed to be “agents” of Crown.
Douglas/Kwantlen (1990)
Thus, SC has held that a community college in BC was subject to the Charter, b/c it was subject to a substantial degree of gov’t control. The college was also expressly stipulated by statute to be an agent of the Crown, BUT the Court did not rely on this fact. The rule for Crown-agent status is that an express stipulation will create the status even if the body so stipulated is not controlled by government. All the members of the governing board were appointed by the Lieutenant Governor in Council and held office at pleasure. Minister of Education had power to issue directives to the college.
In other cases involving a university and a hospital, the Court has held that both institutions were sufficiently independent of gov’t that they were NOT subject to the Charter: McKinney v U of Guelph [1990]; Stoffman v Vancouver General Hospital [1990]
The control test looks to an institutional or structural link with gov’t to determine whether a public body is covered by the Charter. The majority of the Court has rejected a functional link with gov’t as the test for the coverage of the Charter: MicKinney; Stoffman. Thus, it was irrelevant that the university and the hospital in those cases were each performing a “public service”, as long as they were performing it independently of gov’t (McKinney at 269; Stoffman at 511). And it would be irrelevant that a public body was performing a “private” function if it was performing it under the control of gov’t: Lavigne v OPSEU [1991] The scope of the term “gov’t” is important only if the body alleged to have breached the Charter was not relying on a statutory power. IF body alleged to have breached the Charter was relying on a statutory power, the Charter will apply by virtue of that fact and regardless of whether or not the body is within the term “gov’t”.
(f) Courts Does the Charter apply to the courts? Yes and No answers. Retail, Wholesale and Department Store Union v Dolphin Delivery [1986] NO
Could Dolphin Delivery, a courier Co., obtain an injunction to restrain a union from picketing Dolphin Delivery’s premises? The union represented the employees of another courier co against whom it was on strike. Since Dolphin Delivery was not part of that dispute, the picketing of Dolphin Delivery’s premises would be “secondary picketing”. The courts in BC held that the picketing would constitute the common law tort of inducing a breach of contract and they granted an injunction to prevent the picketing. In the SC, the union argued that the injunction should be set aside, because it abridged the Charter guarantee of freedom of expression. The Court rejected the argument on the ground that the Charter had no application to the order of a court. McIntyre J (for unanimous Court) held that the word “gov’t” in Ss. 32 means ONLY the executive branch of gov’t and did NOT include the judicial branch A court order was not governmental action and therefore the injunction issued by the SC of BC was not subject to the Charter.
R v Rahey [1987] YES
SC had to determine whether a criminal court had denied to a D the Ss. 11(b) right to be tried within a reasonable time. The trial judge had delayed unreasonably in reaching a decision on the application by the D, made at the close of the Crown’s case, for a directed verdict of acquittal. The TJ had adjourned the application 19 times and taken 11 months to reach his decision; his decision was to deny the application. SC held that the delay was a breach of Ss. 11(b) of the Charter and the Court ordered a stay of the proceedings.
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In this case, the action that was held to be a breach of the Charter was the action OF a court and the remedy was directed TO a court. ONLY La Forest J said: “it seems obvious to me that the courts, as custodians of the principles enshrined in the Charter, MUST themselves be subject to Charter scrutiny in the administration of their duties” This statement is contradictory of the ruling in Dolphin Delivery (given only 5 months earlier) that the Charter does not apply to the courts. Yet Dolphin Delivery was not referred to by La Forest J or by any of the other judges who wrote opinions!!
BC Government Employees’ Union v BC [1988] YES CONFIRMED
A union, on lawful strike, had formed picket lines outside the courts in BC, where some of the union members worked. Chief Justice of BC, discovering the picketers outside the courthouse on his way to work, immediately, on his own motion and without notice to the union, issued an injunction prohibiting the picketing of the courts. The union, on learning of the injunction, applied to have it set aside on the ground that it abridged the Ss. 2(b) right to freedom of expression. The SC refused to set aside the injunction. Majority held that, although the injunction did limit freedom of expression, it was justified under Ss. 1 Dickson CJ (for a unanimous Court on this issue) did hold that a court order was subject to Charter review. He referred to Dolphin Delivery, distinguishing it on the basis that the injunction in that case was issued to resolve “a purely private dispute” Here, “the court is acting on its own motion and not at the instance of any private party” and the court’s motivation “is entirely ‘public’ in nature, rather than ‘private’”
The Rahey and BCGEU decisions have, in effect, repudiated McIntyre J’s ruling in Dolphin Delivery that the word “gov’t” in Ss. 32 excludes the courts. Reconciling Dolphin There are 2 elements of the court order in Dolphin Delivery that make it distinctive: 1.
the court order resolved a dispute btw two private parties; and
2.
the court order was based upon the common law.
No gov’t was involved in Dolphin Delivery and no statute applied to the dispute. Therefore, there was no gov’t action that could make the Charter applicable, at least up to the point of the making of the court order (the issue of the injunction).
The question then becomes: does the making of the court order, supported as it is by “the full panoply of state power””, supply the requisite element of governmental action? (Shelley v Kraemer (1948) 334 US 1, 1 The ration decidendi of Dolphin Delivery MUST be that a court order, when issued as a resolution of a dispute btwn private parties, and when based on the common law, is NOT governmental action to which the Charter applies. A contrary decision would have the effect of applying the Charter to the relationships of private parties that Ss. 32 intends to exclude from Charter coverage and that ought in principle to be excluded from Charter coverage. Where, however, a court order is issued on the court’s own motion for a public purpose (as in BCGEU) OR in a proceeding to which gov’t is a party (as in any criminal case, such as Rahey) or in a purely private proceeding that is governed by statute law, THEN the Charter will apply to the court order.
(g) Common law
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In the Dolphin Delivery case (1986), the SC said that the Charter does NOT apply to the common law, or at least those rules of the common law that regulate relationships btw private parties. The basis for the injunction in Dolphin Delivery was a rule of the common law that secondary picketing (in the circumstances there presented) would amount to the tort of inducing a breach of contract. The union, seeking to set aside the injunction, argued that this rule of the common law was an unconstitutional abridgement of freedom of expression. McIntyre J, for a Court that was unanimous on this issue, said that the Charter had no application to such a rule: “where … private party ‘A’ sues private party ‘B’ relying on the common law, and where no act of government is relied upon to support the action, the Charter will NOT apply” With this language, the Court excluded from Charter review the rules of the common law that regulate relationships between private parties.
In Canada, the exclusion of the common law from Charter review makes it nec to determine the source of any law that is claimed to abridge a Charter right.
IF the applicable law is a rule of the common law, THEN Charter does not apply. IF, however, the law is a rule of statute law, THEN Charter does apply: the statute supplies the needed element of governmental action. In Dolphin Delivery, b/c the prohibition on secondary picketing had NOT been enacted in the Canada Labour Code, it remained a matter of common law and the Charter did not apply. BUT in most jurisdictions, including BC, the prohibition on secondary picketing has been enacted in the Labour Code; in those jurisdictions, the Charter will apply. Seems odd that the applicability of the Charter should turn on the question whether the applicable law is a rule of common or statute law. But in support of the Court’s decision in Dolphin Delivery, applying the Charter to the common law would entail applying the Charter to all private action.
Examples of Charter application:
Charter applies when a police officer exercises a common law power to search an accused person as an incident of an arrest: R v Golden [2001] Charter applies when a Crown prosecutor exercises a common law power to adduce evidence of the accused’s insanity, causing the accused to be acquitted BUT held in custody: R v Swain [1991] Charter applies when the Crown acts under a prerogative power, eg, by authorizing the testing of American cruise missiles on Canadian soil: Operation Dismantle v The Queen [1985] Charter also applies when the Crown acts under a general common law power, eg, by entering into a contract with its employees requiring mandatory retirement (Douglas/Kwantlen (1990)) or mandatory payment of union dues: Lavigne v OPSEU (1991) It is questionable whether one ought to describe the Charter as applicable to the common law in these situations, because it is the presence of the governmental actor, not the source of the actor’s power that makes the Charter applicable.
Indirect effect of the common law
It was suggested by McIntyre J in Dolphin Delivery that “the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution” and that “in this sense, then, the Charter is far from irrelevant to private litigants whose disputes fall to be decided at common law”
Pepsi-Cola Canada Beverages v RWDSU [2002]
A more sweeping injunction was in issue A union that was on strike against its employer, Pepsi-Cola, set up picket lines not only around the bottling plant where the employees worked BUT ALSO around a variety of secondary locations. Pepsi-Cola obtained an injunction against all secondary picketing and the validity of this injunction came before the SC.
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As in Dolphin Delivery, the Court held that it had the power to “develop” the common law in order to make it consistent with “Charter values” The union had been picketing the retail stores that sold Pepsi-Cola products. The pickets were effective in preventing the delivery of Pepsi-Cola products to the stores, BUT they were peaceful and did not commit any tort, not even the tort of inducing breach of contract. Did the common law authorize an injunction against secondary picketing where no “wrongful act” (whether tort or crime) was committed? There was a line of pre-Charter cases that answered yes to that question, but the SC held that these cases were not sufficiently respectful of the Charter value of freedom of expression. The Court therefore overruled these cases and held that picketing could be enjoined only if it involved the commission of a wrongful act. Since no wrongful act was involved in the picketing of the stores, the Court discharged that part of the injunction. The union had also been picketing the homes of Pepsi-Cola management personnel, but those picket lines had not been peaceful and had been committing the tort of intimidation. Under the new wrongful act doctrine, that part of the injunction was not inconsistent with Charter values and was accordingly affirmed by the Court.
Dagenais v CBC [1994]
A Charter challenge was brought to an injunction (publication ban) that had been issued by a TJ to prohibit the CBC from broadcasting a TV programme that could have had the effect of influencing the juries in a series of criminal trials of Christian brothers who were charged with abusing young boys in their care. The applicants for the injunction were the Christian brothers who had been charged with abuse and the respondent was the CBC, which, although publicly owned, is not an agent of the Crown to which the Charter would apply. Since the legal basis for the injunction was the common law, the case was on all fours with Dolphin Delivery in that it was a dispute btw private parties governed by the common law. Lamer CJ for the majority relied upon McIntyre J’s dictum in Dolphin Delivery to hold that the common law should be developed in a manner consistent with the values of the Constitution. After reviewing the common law respecting publication bans, the Chief Justice decided that the law gave insufficient weight to the Charter value of freedom of expression. He held that it was “necessary to reformulate the common law rule … in a manner that reflects the principles of the Charter” He proceeded to do this by formulating a more restrictive common law rule for the issue of publication bans and by striking down the ban that was under appeal.
Hill v Church of Scientology [1995]
A Crown attorney employed by the gov’t of Ontario brought an action for defamation against the Church of Scientology and its lawyer, who had falsely accused the plaintiff of violating a court order. The Ds argued that their statements were protected by the Charter of Rights. They pointed to the facts that the P was employed as an agent of the Crown, that the defamatory statements related to his official duties and that his defamation action was being funded by the Crown. SC held that these facts did not supply the element of governmental action that was required by Ss. 32 of the Charter. In the context of a defamation action, the P was a private party, because the action was brought, not as part of his governmental duties, but to vindicate his personal reputation. Since it was the common law that governed the cause of action, it followed that the Charter did NOT apply. HOWEVER, although the Charter did not apply directly to the common law of defamation, it was still necessary to consider whether the common law was consistent with “Charter values” and to modify the common law if necessary Cory J (wrote for the Court on this issue) said that this exercise was not exactly the same as applying the Charter directly to the common law. The balancing of the competing values “must be more flexible than the traditional Ss. 1 analysis undertaken in cases involving governmental action” and the Charter claimant “should bear the onus of proving both that the common law fails to comply with Charter values and that, when these values are balanced, the common law should be modified”
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The concern here was that a private party relying on the common law should not be put in the position of carrying the burden of defending the law against a Charter attack. Cory J then went on to balance the competing interests that are accommodated by the common law of defamation, namely, the personal reputation of plaintiffs and the freedom of expression of defendants. The Court concluded that “in its application to the parties in this action, the common law of defamation complies with the underlying values of the Charter and there is no need to amend or alter it”
Grant v Torstar Corp [2009]
A private individual brought a defamation action against the Toronto Start newspaper, which had published a story about the plaintiff that the trial court had found to be defamatory. SC followed the Hill decision on the application of Charter values to the common law of defamation: the common law, though not directly subject to Charter scrutiny where disputes btw private parties are concerned, may be modified to bring to harmony with the Charter” THEN, reversing Hill, the Court held that the common law of defamation did not give adequate weight to the Charter value of freedom of expression and should be modified to introduce a new defence of responsible communication on matters of public interest. The result of these cases is that the exclusion of the common law from Charter review is NOT particularly significant. Rule that the common law should be developed into conformity with “Charter values” means that, although the Charter doesn’t apply directly to the common law, it does apply indirectly.
Bell ExpressVU v Rex [2002]
SC has also rejected the idea that statutes should automatically be interpreted into conformity with Charter values. Charter values are relevant to statutory interpretation ONLY where the statute is ambiguous and reference to a Charter value would help resolve the ambiguity
(h) Private action
The Charter regulates the relations between gov’t and private persons, BUT it does NOT regulate the relations between private persons and private persons o Dolphin Delivery; Tremblay v Daigle [1989]; McKinney v U of Guelph [1990] Such actions as an employer restricting an employee’s freedom of speech or assembly, a parent restricting the mobility of a child or a landlord discriminating on the basis of race in his selection of tenants CANNOT be breaches of the Charter, b/c in no case is there any action by the Parl’t or gov’t of Canada or by the Leg or gov’t of a province. In cases where private action results in a restriction of a civil liberty, there may be a remedy for the aggrieved person under a human rights code, under labour law, family law, tort law, contract law or property law or under some other branch of the law governing relations btw private persons; BUT there will be no breach of the Charter.
R v Buhay [2003]
Two security guards at the Winnipeg bus depot detected the smell of marijuana coming from a locker that had been rented to someone and locked up. They asked a manager of the bus depot to open the locker with his master key, which he did. The security guards found drugs inside the locker. They replaced the drugs in the locker and called the police. When the police arrived, the security guards again got the manager to reopen the locker with the master key and the police seized the drugs. The police later arrested the person who had rented the locker and charged him. SC held that the initial opening of the locker was not a search within the meaning of Ss. 8 of the Charter (unreasonable search and seizure), because the security guards were private actors. Private security guards in Manitoba were subject to “a loose framework of statutory regulation”, BUT they were “not subject to gov’t control” Nor were they acting as agents of the police in opening the locker; they had acted “totally independently of the police in their initial search”
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HOWEVER, the second opening of the locker was in a different category. When the police took over, private action was replaced by state action. Since the police acted without a warrant, the search and seizure were unreasonable, which was a breach of Ss. 8 of the Charter.
Public/private distinction
Much “private” activity has been regulated by statute, or been joined by gov’t, and if so the statutory or gov’t presence will make the Charter applicable as well. When it is said that the Charter does not apply to “private” action, the word “private” is really a term of art, denoting a residual category from which it is necessary to subtract those cases where the existence of a statute or presence of gov’t does make the Charter applicable.
Under-inclusive statutes
An under-inclusive statute is one that excludes some group that has a constitutional right to be included. Sometimes this is accomplished by “severance”, deleting from the statute the language that excludes the group. Other times, this is accomplished by “reading in”, inserting new language into the statute to add the excluded class. The equality guarantee of Ss. 15 is usually the Charter right that is invoked to support the remedy of extension.
Examples: o
SC held that the failure of Alberta’s human rights statute to extend protection against discrimination on the ground of sexual orientation was a breach of Ss. 15 and the Court, by reading in, directly added the ground of sexual orientation to the statute: Vriend v Alberta (1998)
o
SC held that the exclusion of agricultural workers from Ontario’s labour relations statute was a breach, NOT of Ss. 15, BUT of Ss. 2(d) (freedom of association) and the Court severed the exclusion clause from the statute, thereby sweeping the agricultural workers in: Dunmore v Ontario (2001) – note the Court postponed the order of severance for 18 months in case the Leg wished to enact a different regime of labour law for the agricultural workers (which they later did).
Summary
There is a private realm in which people are not obliged to subscribe to “state” values and into which constitutional norms do not intrude. The boundaries of that realm are marked, not by an a priori definition of what is “private”, but by the absence of statutory or other governmental intervention.
(i) Extraterritorial application o o
Ss 32 confines the application of the Charter to the legislative bodies and gov’t of Canada and provinces. This means, eg, that an accused person in Canada cannot object to a statement given to American police officers who failed to comply with the standards of the Canadian Charter: R v Harrer [1995] 3 SCR 5623; R v Terry [1996] 2 SCR 207
o
Generally speaking, it is also NOT a breach of the Charter when Canadian law exposes a person to foreign sanctions, eg, by compelling testimony that forces the witness to violate a foreign secrecy law: Spencer v The Queen [1985]
Extradition process Within Canada, an application by a foreign state to extradite a fugitive is dealt within a two-stage process:
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1.
A judge holds a hearing to determine whether the foreign state has sufficient evidence of the commission by the fugitive of an extraditable offence in the foreign state (Ss. 7 of the Charter requires that this hearing be conducted in accordance with the principles of fundamental justice – cases Hogg footnote 166)
2.
Only if the extradition judge finds the evidence to be sufficient, THEN the Minister of Justice decides whether to surrender the fugitive to the requesting state.
nd
At 2 stage, extradition of a fugitive who is a Canadian citizen is a denial of the right to remain in Canada that is guaranteed by Ss. 6 of the Charter. However, extradition is justified as a reasonable limit under Ss. 1 o o
o
o
At both stages of the process, extradition is a deprivation of liberty in Canada and Ss. 7 of the Charter is therefore applicable. It would be a breach of the principles of fundamental justice under Ss. 7 if a fugitive (whether or not a Canadian citizen) were to be extradited to a country where he/she may be treated in a fashion that “shocks the conscience”: Can v Schmidt [1987] However, the Court has allowed extraditions to the US when the fugitive faced penalties that were more severe than penalties for similar crimes in Canada or that were even contrary to the Charter: US v Jamieson [1996] (mandatory 20-year sentence) – these sentences, if imposed in Canada, would probably be contrary to Ss. 12 of Charter, Hogg Ch. 53.4 “Minimum sentence”. Canada’s extradition treaty with the US expressly provides that extradition may be refused IF the US does not provide assurances “that the death penalty shall not be imposed, or, if imposed, shall not be exercised”
Kindler v Canada [1991]
Kindler was a US citizen who was convicted of murder in Pennsylvania. After the sentencing hearing required by Pennsylvania law, the jury recommended death Before sentence formally imposed, escaped and fled to Canada where was caught & arrested. At the conclusion of the extradition process in Canada, the Minister decided to surrender the fugitive w/o seeking assurances that the death penalty would not be imposed. On review of the Minister’s decision, the majority held that the decision did NOT shock the conscience and that therefore there was no breach of the principles of fundamental justice Majority noted that IF extradition was denied there would be NO legal basis for keeping Kindler in custody and Canada would become a safe haven for the most violent American criminal
US v Burns [2001] - Ten years later, changed mind – Canadian citizens at issue
The US sought extradition of two fugitives who had been charged with brutal murders in the State of Washington and who had fled across the border to BC where they were arrested. Minister of Justice decided to surrender the two fugitives to the US. Under the criminal code of the State of Washington, they were liable if convicted to either the death penalty or life imprisonment without parole. The Minister did not seek assurances that the death penalty would not be imposed. On review of Minister’s decision, the SC now held that it would be a breach of fundamental justice to extradite w/o obtaining assurances that death penalty wouldn’t be imposed. The Court chose not to follow its earlier decision in Kindler, holding that an extradition to face the death penalty would shock the conscience and would breach Ss. 7 (did not distinguish on the grounds that the 2 accused in Burns were Canadian citizens) “In the absence of exceptional circumstances, which we refrain from trying to anticipate, assurances in death penalty cases are always constitutionally required” The main reason for departing from Kindler was the Court’s belief that over the last decade the arguments against the death penalty, and in particular the concern about wrongful convictions, had become stronger. The “safe haven” argument was dismissed on the basis that there was “little indication” that US’ governments would ever fail to give assurances
Suresh v Canada [2002]
Would it be a breach of Ss. 7 to deport a person (in this case, a citizen of Sri Lanka) from Canada if that person was likely to face torture in the country to which he was returned?
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SC held that deportation was not materially different from extradition and followed Burns to hold that a deportation to face torture would “usually” be a breach of fundamental justice Court used “usually” because the Court recognized that Canada was entitled to protect itself by expelling someone who was truly dangerous and Ss. 7 allowed a balancing of the danger to public safety within Canada against the risk of harm to the deported person outside Canada. SC upheld the provision in the Immigration Act that permitted the Minister of Immigration to deport non-citizens who were found to be a “danger to the security of Canada”, BUT the Court held that there MUST be cogent evidence that the person is indeed dangerous before the Minister could constitutionally deport a person who would face torture in returning country Moreover, Ss. 7 required that a person making a credible claim that he would be tortured on return to his country of citizenship MUST be given full information of the case for deportation, given an opportunity to respond & provided w/ reasons for the ultimate decision. B/c Suresh had not been given a sufficient opportunity to substantiate his claims that he would face torture if deported to Sri Lanka and that in any event he was not a danger to public safety in Canada, the Court set aside the deportation order and ordered the Minister to reconsider.
Ahani v Canada [2002]
Companion case. SC upheld the deportation of an Iranian citizen. Minister had followed the appropriate procedures and had concluded that there was ONLY a minimal risk that the deportee would be tortured if he were returned to Iran AND that the deportee was a danger to the security of Canada. The Court accordingly affirmed the Minister’s decision.
Schreiber v Canada [1998]
Did the Charter apply to a letter of request from the Canadian Dep’t of Justice to gov’t authorities in Switzerland requesting the seizure of records of Swiss bank accounts that were wanted by the RCMP for a criminal investigation? The letter of request had NOT been authorized by a search warrant or other judicial authorization that would, under Ss. 8 of the Charter, be constitutionally necessary for the seizure of bank records in Canada. The Swiss gov’t, acting w/o judicial authorization BUT in compliance with Swiss law, carried out the request and seized the documents. The Canadian owner of the bank accounts did not challenge the action of the Swiss gov’t, to which the Charter clearly did not apply. What he did challenge was the letter of request that had been issued by the Canadian gov’t. A majority of the SC (5:2) rejected the challenge on the basis that the letter of request had no legal effect and was NOT subject to Charter review for that reason. All the actions that were legally effective had been carried out by a foreign gov’t in accordance with foreign law and were not subject to Charter review. The dissenting minority took the view that this was a “formalistic” disposition of the case. The Canadian officials who issued the letter of request initiated a process that they expected to result in a seizure of documents that invaded the privacy of the Canadian owner. According to the dissenters, Charter standards should have been complied with before making the request. *** Lamer CJ (separate concurring opinion) took a middle ground. He agreed with the dissenters that the Charter applied to the letter of request, but he held that there was no breach of a reasonable expectation of privacy, b/c the person who chooses to place funds in a foreign bank account MUST expect to be governed by the law of the place where the account is located.
R v Cook [1998] (LATER OVERRULED BY HAPE)
An American citizen was arrested in the US by US marshal for a murder that had been committed in Canada. After the arrest, two police officers from Canada travelled to the prison in New Orleans where the accused was being held and interrogated him.
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The interrogation did not comply with Charter standards, because there was an inadequate warning of the right to counsel. Accused was extradited to Canada for trial and the statement was used by Crown at the trial. SC held (majority) that the Charter applied to the interrogation b/c, although the interrogation took place in the US, it had been carried out by Canadian police officers. According to the majority, there was no interference with American sovereignty in holding that the Canadian police officers continued to be bound by Charter even after entering the US. The majority concluded that the statement had been obtained in breach of the Charter. L’Heureux-Dubé J (dissent) based opinion on the proposition that Canadian police officers had NO legal authority to act in the US. Since the interrogation could take place ONLY w/ cooperation of American authorities & in compliance w/ US law, she would have decided that it would be an unconstitutional extraterritorial effect to impose the Charter on the proceedings.
R v Hape [2007] (OVERRULED COOK) Prosecution in Canada for money laundering.
The evidence consisted mainly of docs that had been searched for and seized by Canadian police officers in the Turks and Caicos Islands. Police acted under the supervision of a senior officer of the Turks and Caicos Police Force. Case proceeded on the assumption that ALL searches and seizures that yielded the evidence were made in compliance with Turks and Caicos law, BUT at least one of the searches took place w/o a warrant which would have been a breach of Canadian Charter IF applied This case is VERY different from Cook, in that requiring the Turks and Caicos legal system to develop a procedure for the issue of a warrant simply in order to comply with the Canadian Charter would be an objectionable interference with Turks and Caicos sovereignty. Bastarache and Binnie JJ (concurring opinion) pointed out that the ruling in Cook would not require the application of the Canadian Charter to the facts in Hape. LeBel J (for majority) agreed that the Charter should NOT apply. In effect, he took the same view as the dissenting opinion in Cook: the Charter applied ONLY to actions taken by Canadian actors INSIDE Canada. However, his position differed from the dissent in Cook in that he made two exceptions to the territorial restriction on the Charter: 1. “activities [outside Canada] that violate Canada’s int’l obligations”, which, he said, “might justify a remedy under Ss. 24(1) of the Charter b/c of the impact of those activities on Charter rights in Canada”; and 2. “where the host state consents”. He did not explain what he meant by consent (an investigation by Canadian police in a foreign country MUST always take place w/ the consent of foreign country otherwise there would be a breach of int’l law of state sovereignty: Bastarache J. a. LeBel J is using consent in a special sense; whatever he means by consent, he says that it would be “rare”. He reasoned that Ss. 32 of the Charter should be read down to conform to principles of int’l law that respect the sovereignty of foreign states, leading him to the syllogism: “Since extraterritorial enforcement [of Canadian law] is not possible, and enforcement is necessary for the Charter to apply, extraterritorial application of the Charter is impossible”
LeBel acknowledged that there would be no breach of a foreign state’s sovereignty IF the only consequence of a Charter breach in the foreign state was that evidence was excluded from a Canadian criminal trial.
But, this was NOT sufficient basis for the application of Charter to the acts of Canadian police in a foreign country, b/c the Charter was intended as a guide to action by Canadian police, NOT merely as a vehicle for ex post facto review of evidence obtained in the foreign state. However, if the police action in the foreign state yielded evidence that would make the Canadian trial unfair, then the evidence could and should be excluded under Ss. 7 and 11(d) of the Charter. This would not be an extraterritorial application of the Charter, BUT a measure to control the process of the Canadian court. A failure to meet Charter standards in the search for or seizure of evidence in a foreign country would not by itself make a Canadian trial unfair. CONCLUSION, the evidence had been obtained in compliance with Turks and Caicos law (to which the D had willingly entrusted his affairs) and its admission did not make the trial in Canada unfair.
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Canada v Khadr [2008]
Khadr was a Canadian citizen who was captured by American forces in Afghanistan as part of the military action against Taliban and Al Qaeda forces following the terrorist attacks in the US on Sep 11/01. He was held in a detention camp at the American military base in Guantanamo Bay, Cuba. He was charged with murder and terrorist activities against US forces. The charges were to be tried before a US Military Commission at Guantanamo Bay. After the charges were laid against him in 2005, he applied to the Federal Court of Canada for an order under Ss. 24(1) of the Charter compelling the Gov’t of Canada to disclose to him the records of interviews that were conducted with him in 2003 by officials of the Canadian Security Intelligence Service (CSIS). The Canadian officials had interviewed him in Cuba and had made records of the interviews and given a copy of those records to American officials. SC held that he was entitled to disclosure of the records of the interviews that were in the possession of the gov’t of Canada. The Court reasoned that if everything had taken place in Canada, including the criminal process, Khadr would have been entitled, by Ss. 7 of the Charter, to the Stinchcombe right of full disclosure of all relevant material in the possession of the Crown. o [R v Stinchcombe [1991] held where an accused’s liberty is at stake in a criminal prosecution, Ss. 7 requires FULL disclosure by the prosecution to the accused] While Hape had held that the Charter did NOT have extraterritorial effect, opinion in Hape had suggested an exception for the case where Canada was in breach of its int’l obligations. Court held that the Guantanamo Bay process was contrary to the 1949 Geneva Conventions to which Canada (as well as the US) was a party; and, by handing over the records of the Khadr interview to the US, Canada was “involved” in the process. Therefore, Hape did NOT apply and the Charter acquired extraterritorial effect. (The Court did not quote or mention LeBel J’s language in Hape which seemed to call for some “impact … on Charter rights in Canada”. Neither the interviews nor the handing over of the records was a breach of the Charter, BUT note sequel case
Khadr (2010)
Held handing over was a breach of Khadr’s Ss. 7 rights, BUT, by analogy with Stinchcombe, it was a breach of the Charter not to provide disclosure to Khadr of the records of the interviews and any other relevant material in the possession of the Canadian gov’t. The end result was that Khadr was entitled to the Ss. 24(1) remedy of disclosure of the records held by the Canadian govt. Disclosure was to be made, NOT directly to Khadr, BUT to a Federal Court judge, who would review each item and rule on any claims of public interest immunity or other privilege that were made by the Crown for a particular item.
Mobility rights of Ss. 6
Section 6(1) grants to every citizen of Canada the right to “enter” Canada; it seems to contemplate some degree of extraterritorial application. By its terms, benefit of right is possessed by a person outside Canada (who wishes to enter). Burden of the right (to permit entry) falls on the Gov’t of Canada and would normally be carried out within Canada, either by immigration officials at the point of entry or by the passport office in the Dep’t of Foreign Affairs in Ottawa.
Abdelrazik v Canada (2009) [2010] 1 FCR 267 (Zinn J)
FC held that the Gov’t of Canada was in breach of Ss. 6(1) in refusing to issue a passport to permit the return to Canada of a Canadian citizen in Sudan whose passport had expired while he was in a Sudanese prison (without having been charged with or convicted of anything)!!
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The Court not only ordered the Minister of Foreign Affairs to issue a passport to enable the applicant to return to his family in Montreal, BUT also ordered the Minister to provide an escort to accompany the applicant on his journey. The Court was not troubled by any extraterritorial scruples in making that order. Zinn J was troubled by the concern (based on his finding that the Canadian gov’t had been complicit in the imprisonment in Sudan) that the Gov’t would not use its best efforts to facilitate the return of the applicant, who was the subject of a UN travel ban. He even went so far as to order the Minster to produce the applicant for inspection by the Court for the purpose of satisfying the Court that the applicant had in fact returned to Canada.
*** Greater Vancouver Transportation Authority v Cdn Federation of Students 2009 – Deschamps J
Charter applies NOT only to Parl’t, the Leg and the gov’t BUT also to ALL matters within the authority of those entities. BC Transit CLEARLY a gov’t entity statutory body designated by legislation as an “agent of the gov’t”, w/ a BoD appointed by LG in Council (who has power to manage affairs and operations) TransLink although not an agent of the gov’t, is substantially controlled by a local gov’t entity – the GVRD – and is thus itself a gov’t entity (as GVRD must appoint 12/15 D’s). The control mechanisms are substantial. Echoes Eldridge in that a gov’t should NOT be able to shirk its Charter obligations by simply conferring its powers on another entity Held BOTH BC Transit and TransLink are gov’t within meaning of Ss. 32 THUS not nec to enquire into nature of nd SPECIFIC activities (2 limb as enunciated by Eldridge)
CHAPTER 39: OVERRIDEOFRIGHTS Section 33 of the Charter provides as follows:
(1) Parl’t OR the legislature of a province may expressly declare in an Act of Parl’t OR of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in Ss 2 or Ss 7 to 15 (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have BUT FOR the provision of this Charter referred to in the declaration. (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force OR on such earlier date as may be specified in the declaration. (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1). (5) Subsection (3) applies in respect of a re-enactment made under subsection (4). Section 33 enables Parl’t or a Legislature to “override” Ss. 2 or Ss. 7 to 15 of the Charter IF a statute contains an express declaration that it is to operate notwithstanding a provision included in Ss. 2 or Ss. 7 to 15 of the Charter THEN by virtue of Ss. 33(2) the statute will operate free form the invalidating effect of the Charter provision referred to in the declaration. IF the override power did not exist (or if it were not exercised), such a statute would be valid ONLY if it came within Ss. 1 of the Charter
39.2 History of Ss. 33
Quebec the one province that has NEVER given its assent to the CA, 1982, including Charter. After Charter came into force on April 17, 1982, Quebec’s gov’t secured the passage by the Leg of “An Act respecting the CA, 1982”. This Act added a standard-form notwithstanding clause to each of the statutes in force in Quebec on Aril 16, 1982. The validity of this use of the override was upheld in Ford v Que [1988] Each new Act enacted by the Quebec Legislature routinely included a standard-form notwithstanding clause. This practice was discontinued after Dec 2, 1985, when a change in provincial gov’t occurred.
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The Liberal Gov’t allowed the blanket override to lapse in 1987, when it came to the end of its 5-year life. However, the Liberal Gov’t DID insert a notwithstanding clause in 12 statutes in order to preclude Charter attacks on the statutes. There was one controversial use of Ss. 33 from 12 “An Act to Amend the Charter of the French language”, where Quebec Leg prohibited use of English in outside commercial signs. This was a response to Ford v Quebec (1988), which had held that a law banning the use of languages other than French in commercial signs was an infringement of the Charter right to freedom of expression. After this decision, the Leg re-enacted the prohibition with respect to exterior signs (while allowing bilingual interior signs) and protected the new prohibition w/ notwithstanding clause. In 1993, when the notwithstanding clause reached the end of its 5-year life, the Quebec Legislature lifted the ban on English language signs and replaced it with legislation that required that French be predominant. This new legislation was NOT protected by a notwithstanding clause.
Outside Quebec, the power of override has been used JUST three times: 1. 2.
3.
A statute enacted by the Yukon Territory, but which was never brought into force – Land Planning and Development Act, Ss. 39(1) (providing for nominations to boards by the Council for Yukon Indians) By Saskatchewan, to protect a back-to-work law of a kind that the Sask CA in an earlier case had held was contrary to the guarantee of freedom of association (Ss. 2(d)): RWDSU v Govt of Sask [1985] (CoA) When Sask enacted the override clause, the Gov’t was in the process of appealing the earlier case to the SC. The SC later allowed the appeal, vindicating the Sask Govt’s view that the back-to-work law did NOT offend the Charter: RWDSU v Sask [1987] 1 SCR 460 By Alberta, to protect a law that stipulated that marriage could NOT be between same-sex spouses: Marriage Amendment Act, Ss. 5
7/10 provinces and 2/3 territories have never used the power of override; NOR has the federal Parl’t.
39.3 Rights that may be overridden
Section 33 applies ONLY to: Fundamental freedoms (Ss. 2) Legal rights (Ss. 7 to 14); and Equality rights (Ss. 15) Section 33 does not include: Democratic rights (Ss. 3 to 5); Mobility rights (Ss. 6); Language rights (Ss. 16 to 23); Enforcement provision (Ss. 24); or Sexual equality clause (Ss. 28). In order to be effective under Ss. 33(2), the declaration MUST refer specifically to the Charter provision that is to be overridden. It is clear that more than one provision can be referred to, or even all of them, BUT a declaration that did not specify any particular Charter provision would NOT be effective: Ford v Que (1988)
39.4 Five year limit
Sunset clause: Ss. 33(3); 33(4) and 33(5) Section 33(4) authorizes the re-enactment of ONLY “a declaration made under subsection (1)”. However, a declaration re-enacted under sub (3) should probably be regarded as a declaration made under sub (1), in which case the declaration is perpetually renewable. Designed for Parl’t OR Legislature to reconsider each exercise of the power at 5 year intervals
39.5 Specificity
Ss 33 stipulates that the Parl’t OR Legislature MUST “expressly” declare that a statute is to operate notwithstanding a Charter right. Ss. 33(1) express declaration MUST be specific as to statute exempted from the provision of the Charter. The express declaration MUST be contained in a statute. In the context of Ss. 33, “an Act of Parliament or of the legislature” would NOT extend to regulations, by-laws or other forms of delegated legislation. Indeed [Hogg argues], the express declaration MUST be in the statute itself, although it can be added to a preexisting statute by amendment (on basis that amending statute is construed as part of statute amended)
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*** Ford v Quebec (1988) - About procedural vs substantive review – Ss. 33 ONLY about FORM
Whether Ss. 33(1) would authorize blanket declaration applicable to ALL statutes, OR to class of statutes described generally, is q’s that was raised by Quebec’s Bill 62, entitled “An Act respecting the CA, 1982”. The Act added a standard-form notwithstanding clause to “each of the Acts adopted *by the National Assembly of Quebec+ before 17 April 1982”. The Acts referred to were NOT listed; they were identified ONLY by the quoted phrase. SC held this exercise of the override power was legally sufficient; the express declaration had been effectively inserted in each of the acts coming within the omnibus description. Express declaration contemplated by Ss. 33(1) MUST be specific as to Charter right to be overridden. It was argued that the declaration should refer to the very right that was infringed by the particular Act in which the declaration appeared. SC held that the omnibus reference to the rights was sufficient. It was NOT reasonable to require a reference that was particular to the statute containing the declaration, because a legislative body “might not be in a position to judge with any degree of certainty what provisions of the *Charter+ might be successfully invoked against various aspects of the Act in question” Thus, a legislative body “MUST be permitted in a particular case to override more than one provision of the Charter and indeed all of the provisions which it is permitted to override by the terms of Ss. 33”.
39.6 Retroactive Effect ***Ford v Quebec (1988) The Court upheld Quebec’s exercise of the override power despite the omnibus character of its specification of the statutes that it would protect and the rights that it would override. However, Bill 62 was held to be unconstitutional in its attempt to make the declaration retroactive. Bill 62 was enacted on June 23, 1982 but was expressed to take effect from April 17, 1982, which was the date when the Charter came into force. Held that the normal presumption against retroactivity should be applied to the language of Ss. 33 and the section should be construed as permitting “prospective derogation ONLY” The derogation of rights therefore came into force on June 23, 1982, the date of enactment, NOT on April 17, 1982, the date stipulated in Bill 62. BUT Hogg argues that Acts may be effected with a Section 33 override and thus be equipped/prepared in the event the judiciary imposes an adverse judicial decision based on a Ss. 1 justification
39.7 JR
May be undertaken on a declaration under Ss. 33 of the following formal matters ONLY: 1. The declaration MUST be confined to the rights specified in Ss. 33; 2. MUST be specific as to statute that is exempted from Charter and as to rights overridden; and 3. It may NOT be given retroactive effect. Section 33 “lays down requirements of form only” and there was “no warrant for importing into it grounds for substantive review”: Ford v Que (1988) at [33]) o Court upheld the validity of Ss. 33 override W/O considering its reasonableness or demonstrable justification (thus dispensing w/ thesis that Ss. 1 MUST also be satisfied)
39.8 Evaluation of Ss. 33
May be viewed as an anomaly that is incompatible with constitutionally guaranteed rights HOWEVER (Quebec aside) there are VERY FEW uses of the power of override, due to: o (i) Principled commitment to the Charter; and o (ii) Political resistance that could be expected from opposition parties, the press, the organized bar and civil liberties groups Inclusion of a notwithstanding clause in a bill performs a “signaling function” alerting critics Def’n of rights is OFTEN unclear – room for argument over the q’s of which institutions should have the power to determine questions of rights o The British solution is the doctrine of parliamentary sovereignty – NO JR, and judgments of Parl’t are FINAL;
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The US solution is JR, under which the courts have the power to review the legislative choices, and the judgments of the courts are final Power of override in Canada is an intermediate position o JR of statutes is part of Canadian Constitution o BUT on Charter grounds, a judicial decision to strike down law for breach of Ss. 2 or Ss. 7 to Ss. 15 of the Charter is NOT final – decision is subject to legislative review Arguably preferable position in Canada whereby override power is exercised after a reasoned debate in a public forum addressed to a particular issue of justice and public policy VS. US where there is court-bashing and courtpacking which introduces politics to their system Also, power of override allows for rare cases where the elected representative are convinced that a judicial decision is inappropriate with respect to the rights issue – THUS citizens are able to participate in the policy choices of their political community Power of override is a uniquely Canadian invention which makes JR suspensory ONLY
CHAPTER 38: LIMITATIONOFRIGHTS
38.1 Introduction to Ss. 1
Ss 1 of the Charter of Rights and Freedoms provides: a. 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. Ss 1 guarantees the rights and freedoms set out in the Charter, BUT makes clear that they are NOT absolutes; they are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” Ss 1 contemplates that JR of Legislation under the Charter should proceed in 2 stages: a. court decides whether challenged law has effect of limiting one of guaranteed rights; if so b. court decides whether the limit is a reasonable one that can be demonstrably justified in a free and democratic society. Hogg argues that Ss. 1 probably has the effect of strengthening guaranteed rights because Ss. 1 has been interpreted as imposing stringent requirements of justification. BUT, remember Ss. 33 a law that cannot satisfy the standard of justification required by Ss. 1 may still be competent to Parl’t or Leg under Ss. 33
38.2 Rationale of Ss. 1 ***R v Oakes [1986]
Dickson CJ pointed out that the words “free and democratic society” in Ss. 1 set the standard of justification under Ss. 1 ONLY the values of a free and democratic society would suffice to limit the guaranteed rights. Since the guaranteed rights were themselves derived from the values of a free and democratic society, there was an “identity of values” underlying BOTH the rights and their limits. “The underlying values of a free and democratic society BOTH guarantee the rights in the Charter and, in appropriate circumstances, justify limitations upon those rights” a. Slaight Communications v Davidson [1989] Dickson CJ suggested the following as examples:
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a.
“respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. In R v Oakes, Dickson CJ pointed out that Ss. 1 performed two functions: a. it provides for limits on the guaranteed rights; and b. it also expressly guarantees the rights and freedoms set out in the Charter. It also requires that limits be “demonstrably” justified. This led Dickson CJ to stipulate strict rules as to the burden and standard of proof of justification and as to the substantive criteria that would qualify a law as a “reasonable limit” that “can be demonstrably justified in a free and democratic society”. Insisted upon a “stringent standard of justification” before it would accept a limit under Ss. 1 Rules will permit the enactment of limits where there is a strong demonstration that the exercise of the rights “would be inimical to the realization of collective goals of fundamental importance”
38.3 Relationship between Ss. 1 and rights
R v Oakes (1986), SC decided to prescribe a SINGLE standard of justification for ALL rights, to make that standard a high one and to cast the burden of satisfying it on the gov’t. Hogg argues, then, that each right should be so interpreted as not to reach behaviour that is outside the purpose of the right – behaviour that is NOT worthy of constitutional protection.
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Hogg argues that the courts should adhere to the strict standard of justification prescribed by Oakes and should give a purposive (rather than a generous) interpretation to the guaranteed rights. OTHERWISE, IF the rights are broad and the standard of justification is low THEN the courts would be flooded with JR
38.4 Burden of proof First stage of Charter review – has a Charter right been infringed?
Burden of proving ALL elements of breach of Charter right rests on person asserting breach. In case of those rights that are qualified by their OWN terms, e.g., by req’s of unreasonableness OR arbitrariness, the burden of proving the facts that establish unreasonableness or arbitrariness, or whatever else is part of the def’n of the right, rests on the person asserting the breach.
Second stage – justification under s 1
Burden of proof shifts to the gov’t (or other party) seeking to support the challenged law. It is for the gov’t to persuade the court that the challenged law is a “reasonable limit” and that it “can be demonstrably justified in a free and democratic society
***R v Oakes
The standard of proof is “the civil standard”, namely, proof by a preponderance of probability In order to satisfy the burden of proving justification under Ss. 1, Dickson CJ held evidence is “generally” required, BUT “may be cases where certain elements of Ss. 1 analysis are obvious”
HOGG argues that it would be desirable for Charter review to become LESS dependent on evidence, EVEN IF the courts have to strain somewhat to make “obvious” or “self-evident” findings, in that adducing expert evidence is costly for party asserting breach and gov’t in justifying breach AND not an exact social-science!
38.5 Presumption of Constitutionality
When a statute is attacked on federal grounds, there is a presumption of constitutionality. This presumption results in 3 legal consequences: a. the court should exercise restraint in JR, striking down the law ONLY if it clearly offends constitutional restrictions on the power of the enacting Parl’t or Legislation; b. where the validity of a law turns on a finding of fact (e.g., the existence of an emergency), that finding of fact need NOT be proved strictly by the gov’t; it is sufficient that there be a “rational basis” for the finding; and c. where a law is open to two interpretations, under one of which it would be unconstitutional and under the other of which it would be constitutional, the latter interpretation is the one that should be selected (i.e. by “reading down”). In Charter cases, the constitutional contest is between a gov’t and an individual, who asserts that a right has been violated. In that context, it is NOT appropriate to tilt the scale in favour of the gov’t. rd a. Thus, NO presumption of constitutionality, except in 3 case above, “reading down”
38.6 Limits
There is one decision of the SC that holds that NOT every Charter infringement is a “limit” and any infringement that is more severe than a limit CANNOT be justified under Ss. 1
AG Quebec v Quebec Protestant School Boards [1984] (Quebec School Board case)
Court had to determine the validity of the “Quebec clause” of Quebec’s Charter of the French Language (Bill 101), which limited admission to English-language schools in Quebec to the children of persons who had been educated in English in Quebec. The Quebec clause was inconsistent with Ss. 23(1)(b) (the “Canada clause”) of the Canadian Charter, which guaranteed admission to minority-language schools to the children of persons who had been educated in the minority language anywhere in Canada.
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SC held that the Quebec clause infringed Ss. 23(1)(b), BUT the Court refused to be drawn into any inquiry into justification under Ss. 1 The opinion of “the Court” pointed out that the detailed definition of the classes of parents entitled to protection was the heart of Ss. 23 of the Canadian Charter. A redefinition of those classes was NOT a “limit” contemplated by Ss. 1 of the Canadian Charter as open to legislative enactment. The Court concluded that “the provisions of *the Quebec clause+ collide directly with those of Ss. 23 of the Charter and are NOT limits which can be legitimized by Ss. 1 of the Charter”
Criticism – there is a distinction between “limits”, which can be justified under Ss. 1, and “denials”, which cannot be, however, there is NO legal std by which Charter infringements can be sorted into 2 categories.
SC has since moved AWAY from this approach.
Ford v Que [1988]
W/o actually overruling the Quebec School Board case, SC has signaled that it will NO longer use the distinction to obviate the requirement of Ss. 1 justification, “apart from RARE case of a truly complete denial” of a guaranteed right Court stated that Quebec School Board case exemplified a “complete denial” of the right As a result, it seems that even severe restrictions on Charter rights will count as limits and will be susceptible to Ss. 1 justification. The severity of the contravention will of course be relevant as it would be harder to justify.
38.7 Prescribed View (a) Definition of prescribed by law
Ss 1 provides that the Charter rights are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The words “prescribed by law” make clear that an act that is NOT legally authorized can NEVER be justified under Ss. 1, no matter how reasonable or demonstrably justified it may appear to be. Charter violations that take place on the initiative of a police officer (or other official), acting w/o clear legal authority, are OUTSIDE the protection of Ss. 1 R v Hebert [1990] per Sopinka J “The word ‘prescribe’ connotes a mandate for specific action, not merely permission for that which is not prohibited.”
Little Sisters Book and Art Emporium v Canada [2000]
Held: Customs officials had discriminated against homosexual literature in administering the statutory prohibition on the importation of obscene materials. This was a breach of the equality right in Ss. 15 of the Charter and it could NOT be justified under Ss. 1. The customs legislation did NOT authorize any distinction btw homosexual and heterosexual literature and therefore the actions of the customs officials were not prescribed by law. The req that ANY limit on rights be prescribed by law reflects two values that are basic to constitutionalism OR the ROL: 1.
In order to preclude arbitrary and discriminatory actions by gov’t officials, ALL official action in derogation of rights MUST be authorized by law; and
2.
Citizens MUST have a reasonable opportunity to know what is prohibited so that they can act accordingly.
Both of these values are satisfied by a law that fulfils two requirements: 1.
The law MUST be adequately accessible to the public; and
2.
The law MUST be formulated with sufficient precision to enable people to regulate their conduct by it, and to provide guidance to those who apply the law.
These 2 requirements have been held to be inherent in the phrase “prescribed by law” by ECHR, interpreting that same phrase in the European Convention on Human Rights: Sunday Times v UK (1979)
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Sunday Times v UK - ECtHR
The Court had to decide whether the contempt power of the British courts, which had been exercised to restrain the Sunday Times from publishing an article on pending litigation by thalidomide victims against a drug company, was a breach of the right to freedom of expression, which was guaranteed by the Convention. Convention provided that the right to freedom of expression was “subject to such … restrictions … as are prescribed by law and are necessary in a democratic society”. It was argued that the law of contempt could NOT satisfy this limitation, because it was a creation of the common law and NOT of legislation. The Court rejected this argument, holding that: a. a common law rule was adequately accessible to the public; and b. the common law of contempt was formulated w/ sufficient precision to enable a newspaper to regulate its reporting of pending judicial proceedings.
The SC has held that “law” in Ss. 1 is NOT limited to primary legislation: it is also satisfied by delegated legislation (made under statutory authority), such as:
A regulation: R v Therens [1985]; Alta v Hutterian Brethren of Wilson Colony [2009] Municipal by-law: Ramsden v Peterborough [1993]; Greater Vancouver [2009] Rule of a regulatory body: Black v Law Society of Alberta [1989]; Greater Vancouver [2009] A rule of the common law: RWDSU v Dolphin Delivery [1986]; BCEGU v BC [1988] A prerogative order governing the issue of passports: Can v Kamel [2009] (FCA) Gov’t policies, IF gov’t entity has statutory power to enact binding rules of general application AND IF that is what the policies really are & those polices are accessible and precise, Greater Van
Greater Vancouver Transportation Authority v Can. Federation of Students [2009]
SC held that phrase “prescribed by law” in Ss. 1 entails 2 requirements: accessibility and precision SC held that the policies of transit authorities restricting advertising on buses were LIMITS on freedom of expression that were limits on freedom of expression that were prescribed by law. Transit authorities had statutory power to enact binding rules of general application. Advertising policies were BINDING rules of general application on the transit authorities and the general public. Although the policies were NOT officially published as delegated leg’n, they were set out clearly in writing and made available to those who wished to advertise on the buses. They were sufficiently accessible and precise to be “law’ for the purpose of Ss. 1 The Court distinguished the “legislative” policies in this case from “administrative” polices that were intended for internal use within gov’t as aids in the interpretation of regulatory powers Administrative polices, which were often informal and inaccessible outside gov’t, would NOT count as law for the purpose of Ss. 1
R v Therens [1985]
As to precision, the SC has held that a limit on a right need NOT be express, but can result “by necessity from the terms of a statute or regulation or from its operating requirements”
R v Thomsen [1988]
Statutory req’s that a roadside breath test be administered “forthwith”, which in practice precluded contact by the suspected motorist w/ counsel, was held to be a limit “prescribed by law” on the right to counsel, although the statute was silent on the right to counsel
(b) Discretion
A law that confers a discretion on a board OR official to act in derogation of a Charter right will satisfy the prescribed-by-law requirement IF the discretion is constrained by legal standards.
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Re Ontario Film and Video Appreciation Society (1984) (CoA)
A statute authorizing film censorship failed the req, b/c the censor board was given an unfettered discretion to ban or cut films proposed for public exhibition; the statute did NOT stipulate the criteria to be applied by the board. The board had in fact developed its own criteria, which were publicly available, BUT those criteria, the Court held, were insufficient, because they were NOT binding on the board. Had they been contained in the statute itself or in a regulation, the limit on freedom of expression would have been prescribed by law.
Irwin Toy v Quebec [1989]
SC held that statutory discretion in derogation of a Charter right MUST be subject to an “intelligible standard” However, Hogg argues that the Court has upheld discretions that were not constrained by meaningful legal standards.
R v Hufsky [1988]
Upheld a provincial statute authorizing police at their unfettered discretion to stop vehicles. Police used power to stop vehicles at random, in a programme of spot checks for drunkenness & other traffic violations (in pre-determined location where several police officers present). Held that the general discretion conferred by the statute should be interpreted to extend to random stops; and that the statute, so interpreted, was, by implication, a limit prescribed by law on the right not to be arbitrarily detained.
R v Ladouceur [1990]
The Court was presented with a roving random stop, taken at the initiative of an individual police officer and NOT part of any organized programme. By a narrow majority of 5:4, followed Hufsky and held that the same statute authorized the stop and that it was a limit prescribed by law on the right NOT to be arbitrarily detained. Dissenting minority held that the dec’n in Hufsky should be confined to stops at organized check-points and that Ss. 1 could NOT extend to a statute that authorized a police officer to stop any vehicle at any time, at any place and for any reason.
Slaight Communications v Davidson [1989]
An adjudicator found that an employer had unjustly dismissed an employee. The adjudicator ordered the employer to provide a letter of reference to the employee, reciting certain stipulated facts about the employee’s achievements and also ordered the employer not to make any comments other than the stipulated facts in response to any enquiry about the employee’s performance. Purpose of the -ve order to prevent the employer from undermining the effect of the +ve order. Majority held that BOTH the positive and negative orders, although limits on the employer’s freedom of expression, were justified under Ss. 1 Court held that the prescribed-by-law requirement was satisfied, b/c the adjudicator’s order was made under the authority of a statute
BUT, Hogg states, the statute simply gave to the adjudicator a general power to order compensation, reinstatement or other equitable remedy.
NO explicit authority to req letter of reference OR otherwise limit freedom of expression. Nevertheless, the statutory discretion was held to be, by implication, a limit prescribed by law on freedom of expression. Lamer CJ (opinion on this issue accepted by all members) drew a distinction btw two types of statutory conferrals of discretion: a)
statute that expressly OR by nec implication authorized decision that would infringe a Charter right; and (In the case of (a), which is exemplified by Ontario Film and Video, Husky and Ladouceur, the statute itself, not the decision, had to be justifiable under Ss. 1)
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b) the statute that conferred a discretion in language that was apparently broad enough to encompass decisions infringing a Charter right, although the language did NOT expressly or by nec implication authorize infringements of the Charter. (In the case of (b), which is exemplified by Slaight Communications, the broad empowering language should be read down so as NOT to authorize decisions that would infringe the Charter. Any decision that did infringe the Charter would therefore be ultra vires the empowering statute. However, the Charter included Ss. 1; therefore a decision that limited a Charter right in a way that was justifiable under Ss. 1 would NOT infringe the Charter right. It followed that, when a decision limited a Charter right was made under a broad statutory discretion, it was the decision, not the statute, that had to satisfy the Ss. 1 standard of justification: E.g., Eldridge v BC [1997] (discretionary decisions by statutory commission and hospitals)) (c) Vagueness Osborne v Cana [1991]
The idea that a law may be void for vagueness is implicit in the req that a limit on a Charter right be prescribed by law; precision is one of the ingredients of the prescribed-by-law requirement: An excessively vague law would ALSO not be a “reasonable” limit within Ss. 1
Irwin Toy v Quebec (1989)
Challenge to provincial statute that prohibited “comm advertising directed at persons under 13” The statute stipulated 3 factors that were to be taken into account in determining whether an advertisement was directed at persons under 13, BUT even with these factors, the scope of the prohibited class of ads was highly uncertain. It was argued that such a vague prohibition could NOT be a limit on freedom of expression that was prescribed by law. Majority held that it was NOT practicable to seek “absolute precision” in a statute. A law would fail the prescribed-by-law test ONLY “where there is NO intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances” Court held that 3 statutory factors provided “intelligible std.” for application of prohibition.
Examples of laws upheld:
Prohibition on communicating for the purpose of prostitution: Re Ss. 193 and 195.1 of Crim Code [1990] Prohibition on communicating hatred or contempt towards minorities: Can v Taylor [1990] Prohibition on political campaigning by civil servants: Osborne v Can [1991] Prohibition on the sale of obscene materials: R v Butler [1992] Prohibition on tobacco advertising that was “likely to create an erroneous impression” of the health hazards of tobacco: Can v JTI-Macdonald Corp [2007]
In each case, there was a limit on freedom of expression that was couched in relatively vague terms; and, in each case, the Court held that the law supplied a sufficiently intelligible standard to meet the requirement of Ss. 1 that a limit be prescribed by law.
38.8 Reasonable and demonstrably justified (a) Introduction
The req of reasonableness and demonstrable justification are cumulative, NOT alternative. Both MUST be satisfied, there does not seem to be much point in treating each separately.
(b) Oakes Test *** R v Oakes (1986) o o
Dickson CJ (Court unanimous) laid down the criteria that MUST be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society In his judgment at 138-139, the following test is set out:
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o
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There are four criteria to be satisfied by a law that qualifies as a reasonable limit that can be demonstrably justified in a free and democratic society: o (i) Sufficiently important objective Law MUST pursue an obj. that is suff. imp. to justify limit Charter right o (ii) Rational connection The law MUST be rationally connected to the objective o (iii) Least drastic means Law MUST impair the right no more than is nec to accomplish the obj o (iv) Proportionate effect The law must NOT have a disproportionately severe effect on the persons to whom it applies The serious inquiry is to whether the law has impaired the Charter right no more than is necessary – nearly all the Ss. 1 cases have turned on the answer to this inquiry.
38.9 Sufficiently important objective (a) Identification of objective
Identification of obj. of a challenged law is a task of considerable practical and theoretical difficulty
Andrews v Law Society of BC [1989]
Challenged law imposed a req of Cdn citizenship for admission to the legal profession of BC SC was unanimous that the law infringed the guarantee of equality, BUT the Court divided on the question whether the law could be justified under Ss. 1 1. The obj of the law could be expressed at a high level of generality: to restrict entry to the legal profession to persons who are qualified to practise law; OR 2. The obj could be stated at a low level of generality: to restrict entry to the legal profession to persons who are Canadian citizens. o The higher the level of generality, the more obviously desirable the obj will appear. o However, when step 3 is reached – least drastic means – the high level of generality will become a serious problem for the justification of the law. o IF the higher level of generality has been stated as the obj, it will be easy to think of other ways in which the wide objective could be accomplished with less interference with the Charter right. Here, the difference of opinion btw the majority, who held that the citizenship req could NOT be justified under Ss. 1 and the minority, who held that it could be, can be traced in large part to the different levels of generality employed by the judges in characterizing the purpose of the law. Wilson J, with whom Dickson CJ and L’Heureux-Dubé J agreed, articulated the purpose at a high level of generality, BUT held that the proportionality tests failed. Minority McIntyre J, with whom Lamer J agreed, articulated the purpose at a low level of generality; he acknowledged that it could NOT meet the “pressing and substantial” standard, BUT he held that the standard was inappropriately high and that the law was justified under an appropriately lower standard. La Forest J agreed with McIntyre J’s account of Ss. 1, but still agreed with Wilson J that the law could not be justified.
When identifying an objective, the statement of the objective should be related to the infringement of the Charter, rather than to other goals.
The statement of the objective should supply a reason for infringing the Charter right.
RJR-MacDonald v Canada [1995]
The challenged law banned the advertising of tobacco products. The infringement of the Charter was the breach of freedom of expression. Because simply advertising was banned (NOT the product itself), it was NOT relevant to Ss. 1 justification to characterize the obj as the protection of public health from the use of tobacco and to establish the importance of the obj by reviewing the evidence that showed the harmful effects of tobacco on health. The above way of looking at the objective is TOO broad because it did not focus on the reason for infringing the Charter right of freedom of expression.
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McLachlin J, for the majority, said “the objective that is relevant to the Ss. 1 analysis is the objective of the infringing measure” On that basis, the obj of the advertising ban “MUST be to prevent people in Canada from being persuaded by advertising and promotion to use tobacco products” This was a narrower and “less significant” objective than protecting the health of Canadians from use of tobacco, BUT it was still an objective of sufficient importance to justify overriding the right of free expression However, the law failed the least drastic means branch of the Ss. 1 inquiry, b/c the total ban encompassed purely informational and brand-recognition advertising that played no role in persuading people to use tobacco products. The law was therefore struck down.
Vriend v Alberta [1998]
The challenged law was Alberta’s human rights leg’n, which prohibited discrimination in employment on a variety of grounds, including age, sex, race and disability. The basis of the challenge was that the leg’n did NOT protect against discrimination on the basis of sexual orientation. SC held that the failure to include sexual orientation in the prohibited grounds of discrimination was a breach of Ss.15 (equality guarantee) of the Charter. When the Court moved on to the Ss. 1 analysis, Iacobucci J, who wrote the Ss. 1 reasons which were agreed to by all members of the Court, pointed out that the benign objective of the leg’n – to eliminate discriminatory practices by employers – could NOT be invoked to justify the breach, b/c the breach of the Charter lay in what was omitted from the Act. The relevant obj for the purpose of the Ss. 1 analysis was the Legislature’s objective in failing to cover sexual orientation. Since the province of Alberta had failed to adduce any evidence of this objective and the objective could not be discerned from the leg’n itself, the province had failed to establish the existence of an objective that would satisfy the first step of the Oakes analysis Therefore, the limit could NOT be justified under Ss. 1 and the omission was unconstitutional. (The Court’s remedy was to “read in” the omitted ground.)
Rosenberg v Canada (1998) (CoA Ontario)
Held that the federal Income Tax Act offended Ss. 15 of the Charter in req all private pension plans that qualified for tax benefits to be restricted to spouse survivors of the opposite sex. A pension plan that conferred survivor benefits on same-sex partners did NOT qualify for tax benefits under the Act. In holding that the failure to include same-sex spouses could NOT be justified under Ss. 1, the Court decided that the objective of favouring heterosexual unions was itself discriminatory and could NOT form the basis of Ss. 1 justification. The restriction to opposite-sex spouses was held to be unconstitutional. (The Court’s remedy was to “read in” language that would make the definition of spouse include persons of the same sex.)
Irwin Toy v Quebec [1989]
Majority of SC upheld a Quebec law that prohibited advertising directed at children under 13. The law infringed freedom of expression, BUT was held to be justified under Ss. 1 Majority defined the objective of the law at a very low level of generality: the protection of children (a vulnerable group) from advertising NO attempt was made to define the obj in terms of the injury to the children that the law was presumably designed to prevent. Nonetheless, the majority held that the objective was “pressing and substantial”. B/c obj defined in narrow terms, it was THEN easy to find that proportionality tests were satisfied. Proportionality reasons became a pair of tautologies: IF the objective of the law was to protect children from advertising, THEN a ban on advertising directed at children MUST be rationally connected to the objective and nothing less than a ban on advertising could possibly satisfy the obj). Minority McIntyre J who, w/ the agreement of Beetz J, dissented, held that the law could NOT be justified under Ss. 1, b/c there was NO evidence that children were harmed by directed advertising.
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Hogg suggests problem w/ the majority reasoning in Irwin Toy is that the narrow statement of the obj of the law, essentially repeating the text of the law, left the proportionality tests with no work to do. Hogg argues R v Oakes test necessarily implies that it is possible to make ind assessments of the obj of a challenged law and of the means employed by the law to accomplish its objective. This req that the obj of the law be formulated at higher level of generality than merely paraphrasing the law.
(b) Importance of objective ***R v Oakes: 1. ONLY obj’s that are consistent with the values of a free and democratic society will qualify; and 2. Obj MUST “relate to concerns which are pressing and substantial rather than merely trivial; & 3. Obj MUST be directed to “the realization of collective goals of fundamental importance”
In practice, req NOT scrutinized too closely; in all but 1/2 cases where case reached Supreme Court, the req. has not been satisfied. Court finds that when Parliament/Legislature acts in derogation of individual rights, it is doing so to further values acceptable in free and democratic society.
(c) Quebec’s distinct society
Quebec’s “distinct society” provides the motivation for laws respecting language, education and culture that have NO counterparts in the other provinces Dickson CJ included “respect for cultural and group identity” as examples of the values of a free and democratic society in R v Oakes.
Quebec School Board case (1984)
Could Quebec restrict admission to its English-language public schools to the children of persons who had been educated in English in Quebec? This was an infringement of the minority language educational right in Ss. 23(1)(b) of the Charter Could the infringement be justified under Ss. 1? During a lengthy trial, the A-G of Que adduced evidence of the need to protect the French language and culture & reduce assimilation of Que children into the nationally-dominant English-speaking culture. TJ reviewed this evidence and held that the infringement of Ss. 23(1)(b) would make such a trivial contribution to Que’s cultural and linguistic obj’s that it could NOT be regarded as a reasonable limit under Ss. 1. However, the SC disregarded the question of justification altogether. SC held that the Quebec law was such a severe infringement of the Charter right that it should be characterized as a “denial” rather than a “limit” of the right and a denial of the right could NOT be justified under Ss. 1 The Court therefore discarded the evidence of justification and refused to even entertain a line of argument based on Quebec’s distinct society.
AG of Quebec v Ford [1998]
Quebec required that public signs be solely in the French language. SC held that the law infringed freedom of expression and that it could NOT be justified under Ss. 1 NOW the Court recognized the vulnerable position of the French language in Quebec and recognized that the protection and enhancement of the language was a sufficiently important objective to justify a limit on freedom of expression. The law was struck down, not because of any doubt as to the legitimacy of the purpose, BUT because the banning of English was a disproportionate impairment of the rights of English- speakers. However, the mandatory use of French was valid and it would have been valid to require that French be predominant over English. It was the banning of English that went too far. (Quebec then re-enacted the law, protecting it under Ss. 33 of the Charter.)
(d) Inadmissible objectives
There has so far been ONLY one case in which the SC has unequivocally rejected the legislative objective, R v Big M Drug Mart (1985). (However, Hogg suggests that perhaps Quebec School Board case, Vriend v Alta and Rosenberg v Can are perhaps other examples).
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R v Big M Drug Mart [1985]
SC held that the Lord’s Day Act, which was a federal Sunday-closing law, infringed the guarantee of freedom of religion. Purpose, majority of the Court held, was “to compel the observance of the Christian Sabbath” Purpose was directly contradictory of Charter right & could NOT be purpose that justified limiting the right. The SC acknowledged that the secular objective of providing a common day of rest would be sufficiently important to justify overriding a Charter right, BUT the Court refused to attribute that purpose to the Lord’s Day Act for 2 reasons: 1. The legislative history of the Act indicated that the purpose was religious, NOT secular; 2. Under federalism principles, the Act was constitutionally valid as a criminal law only if the purpose was religious. It followed that the legislative objective could not justify the limiting of freedom of religion and the act was unconstitutional.
R v Edwards Books & Art [1986]
SC held that the provincial law pursued the secular objective of providing a common day of rest for workers in the province. This distinguished the case from Big M and, since the other elements of Ss. 1 justification were also satisfied, the provincial law was upheld under Ss. 1
Three rules emerge from the decision in Big M: 1.
An objective CANNOT provide the basis for Ss. 1 justification IF the objective is incompatible with the values entrenched by the Charter of Rights. (In Big M, the religious objective of compelling the observance of a Christian Sabbath was incompatible with the guarantee of freedom of religion. However, in Edwards Books, the objective of providing a common day of rest, although entailing some limitation of freedom of religion, could be accommodated by a society that respected freedom of religion.)
2.
An objective cannot provide the basis for Ss. 1 justification IF the objective is ultra vires the enacting legislative body on federal distribution of powers grounds (The provision of a common day of rest could not be accepted as the objective of the federal law in Big M, although it could be accepted as the objective of the provincial law in Edwards Books. )
3.
Rule against shifting objectives, considered below.
(e) Shifting objectives R v Big M Drug Mart (1986)
SC held that an objective CANNOT provide the basis for Ss. 1 justification IF that objective did not in fact cause the enactment of the law. Dickson CJ rejected the notion that the purpose of a law might change over time with changing social conditions. This would create uncertainty and invite the re-litigation of Charter issues previously settled Therefore, he held: “Purpose is a function of the intent of those who drafted and enacted the legislation at the time, and NOT of any shifting variable” 1. [compared to federalism grounds of review: Margarine Reference - the objective DID change over time from health to protection of the dairy industry – although this change was aided by the fact that subsequent amendments to the Act dropped the preamble that dealt with the health rationale.] The above rule (against shifting objectives) was fatal to the legislation in Big M, b/c the religious motivation of the legislators in 1906, when the law was enacted, was clear, although it was certainly arguable that the law had been maintained on the books in recent times ONLY because it fulfilled the secular function of requiring a common day of rest.
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The rule against shifting objectives was considered again in R v Butler (1992). R v Butler [1992]
SC upheld, under Ss. 1, the anti-obscenity provision of the Criminal Code. Sopinka J, for unanimous Court, acknowledged that the original obj of the provision was the promotion of morality and he held that this obj was insufficiently important to justify a limit on freedom of expression. However, he went on to uphold the provision on the basis that, as interpreted in recent cases, the provision promoted sexual equality. Was this an impermissible shift in the objective of the law? No The objective had ALWAYS been the protection of society from the harms caused by obscene materials. The change in the way in which the courts defined those harms was merely “a permissible shift in emphasis” The modern “emphasis” made the law’s objective sufficiently important to serve as a justification under Ss. 1 What Sopinka J did was to formulate the objective of the law at a level of generality that could be regarded as remaining constant over time, even though the “emphasis” (which is really just a more particular formulation of the objective) had changed with changing community values. This technique offers a way around the rule against shifting objectives.
R v Zundel [1992]
Majority of SC refused to take the path around the rule against shifting obj’s At issue was the CC offence of spreading false news, which was held to be a limit on freedom of expression. The original obj of the law was to protect “the great men of the realm” from malicious lies Here, the law had been used to prosecute the purveyor of Holocaust-denial literature that was deeply offensive to Jews. McLachlin J, for the majority, held that the prevention of harm from deliberate falsehoods was TOO general a statement of the law’s objective. In her view, “to convert *the false-news law] into a provision directed at encouraging racial harmony is to go beyond any permissible shift in emphasis”. She applied the rule against shifting objectives to hold that the modern objective could not be attributed to the law. Since the law had not been enacted for an objective that was sufficiently important today to justify a limit on freedom of expression, the law was struck down. Cory and Iacobucci JJ (dissenting) held that the false-news law had always had as its purpose the prevention of harm from deliberate falsehoods. 1. Citing Butler, they characterized the modern objective of racial harmony as a “permissible shift in emphasis” in response to current values
(f) Cost Singh v Minister of Employment and Immigration [1985]
Did an oral hearing by a body with decision-making power had to be afforded to every person who arrived at Canada’s borders and claimed to be a refugee? AG of Canada argued that such a procedure, IF applied to the many thousands of refugee claimants who arrive each year, would impose an “unreasonable burden” on gov’t resources. Wilson J for 3 of 6 judges said: 1. “The guarantees of the Charter would be illusory IF they could be ignored b/c it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice BUT such an argument, in my view, misses the point of the exercise under Ss. 1” The other 3 judges did NOT address this issue (they did not decide the case on the basis of the Charter), but the Court was unanimous that the full hearing right had to be provided.
R v Lee [1989]
Challenge brought against the section of the CC that provided that an accused who had elected trial by jury, BUT who had failed to appear for trial without a legitimate excuse, was to be tried by judge alone. Was this a denial of the Charter right to “the benefit of trial by jury” (Ss. 11(f))? Majority SC held that right had been denied, BUT that the section was saved by Ss. 1
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Lamer J for the majority held that it was appropriate to deny the right to those who had burdened the system with the cost of futilely empanelling a jury Wilson J dissented, holding that “reducing administrative inconvenience and reducing expense are not, in my view, sufficient objectives to override such a vital constitutional right”
R v Chaulk [1990]
Did the Criminal Code’s presumption of sanity offend the Charter of Rights? The majority of the SC held that the presumption of sanity offended the presumption of innocence guaranteed by Ss. 11(d), because it relieved the Crown of the burden of proving that an accused person was sane. However, Lamer CJ (with 4 others) was willing to uphold the rule under Ss. 1; in his view, to relieve the Crown of the great difficulty of proving sanity was a sufficient objective Wilson J disagreed, holding that a “purely procedural” objective could not be sufficiently important to satisfy Ss. 1 She acknowledged that the prospect of guilty persons escaping conviction through false pleas of insanity could be a “pressing social problem” that would afford justification under Ss. 1, but she held that there was no evidence to establish such a concern. Three judges held that the presumption of sanity did not offend Ss. 11(d); they did not need to consider Ss. 1
New Brunswick v G(J) [1999]
SC held that it was a breach of Ss. 7 not to provide legal aid to a parent whose children were the subject of removal proceedings to bring them under the wardship of the state. The failure to provide legal aid was said to be justified by the need to control government expenditures. Lamer CJ, for the majority, did not categorically deny that cost could be a sufficiently important objective to justify the denial of a fair hearing to the parent. He did NOT need to reach the issue of principle, because he rejected the justification on the ground that the proposed budgetary savings would be “minimal”
Nova Scotia v Martin [2003]
The SC held that the system of classification of injuries and standardization of benefits in a workers’ compensation scheme violated the equality rights of workers who suffered from chronic pain and could not be justified under Ss. 1 on the basis of cost or administrative expediency (or anything else). Individualized assessment of chronic pain cases was required.
In ONLY one case has the SC accepted that the saving of gov’t money is a sufficiently important objective to justify a limit on a Charter right. Newfoundland v NAPE [2004]
The gov’t of Newfoundland had signed a pay-equity agreement with female workers in the hospital sector, which provided for a series of pay increases over five years to bring their pay up to that of comparable male workers. Before the payments had started, the Leg enacted the Public Sector Restraint Act. The Act modified the agreement by deferring the commencement of the payments to a date three years later than the agreed-upon date. The Act also closed 360 hospital beds, reduced the scope of Medicare coverage, laid off 2,000 public employees and froze or cut the budgets of school boards and other government programs. While the implementation of pay equity was ONLY delayed, no provision was made for retroactive pay for the period of delay, so that the government’s contractual obligation to make the first three years of payments was erased. This caused a savings to gov’t (and a denial of pay to the workers) of $24M. Reason given by gov’t for Act was an unexpected shortfall of $200M in the province’s revenues. The workers sued for the pay-equity adjustments, arguing that the Act was unconstitutional. SC held that the Act discriminated on the basis of sex in breach of Ss. 15 of the Charter. BUT the Court held that the Act was saved by Ss. 1.
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The financial crisis of the province supplied a sufficiently important object to justify the limit on the female workers’ equality rights. Binnie J, for the Court, said that financial considerations would not “normally” suffice as the objective of a limit on a Charter right, BUT in this case the gov’t was managing a “financial crisis” that had attained a dimension that called for remedial measures Binnie J emphasized that the Act in fact made cuts to many other programs in addition to pay- equity. There were “numerous legitimate claims on the public purse by disadvantaged people which the government was bound to mediate” WRONG to analyze the case as one of “rights vs dollars”; it was ALSO a case of “rights vs hospital beds, rights vs layoffs, rights s education and rights vs social welfare” It was “NOT convincing simply to declare that an expenditure to achieve a Ss. 15 objective MUST necessarily rank ahead of hospital beds or school rooms” The Court accepted the legislative judgment as to the necessity of limiting Charter rights in the service of other values of a free and democratic society.
38.10 Rational Connection (a) Definition
R v Edwards Books and Art [1986] 1. “The req of rational connection calls for an assessment of how well the legislative garment has been tailored to suit its purpose” R v Oakes 1. The law MUST be “carefully designed to achieve the objective in questions”; it should NOT be “arbitrary, unfair, or based on irrational considerations”
***R v Oakes (1986)
Here, the law failed the rational connection requirement. At issue was the validity of a provision of the federal Narcotic Control Act, which provided that proof that the accused was in possession of an illegal drug raised a presumption that the accused was in possession for the purpose of trafficking. The effect of the provision was to cast on the accused the burden of proving that he was not in possession for the purpose of trafficking. SC held that this “reverse onus” clause was an infringement of Ss. 11(d) of the Charter, which guarantees the presumption of innocence. Could, then, the reverse onus clause be justified under Ss. 1? The Court readily agreed that the objective of the reverse onus clause – to protect society from drug trafficking – was sufficiently important to justify limiting a Charter right. BUT the Court held that the law failed the rational connection test. “There must be”, Dickson CJ said, “a rational connection between the basic fact of possession and the presumed fact of possession for the purpose of trafficking” This reverse onus clause could NOT satisfy this requirement b/c it did NOT make any stipulation as to the quantity of narcotics in the possession of the accused; “possession of a small or negligible quantity of narcotics does NOT support the interference of trafficking” The Court stopped the Ss. 1 inquiry at this point, holding that the reverse onus clause could NOT be justified under Ss. 1 and was therefore unconstitutional. Hogg argues that could have a rational connection, but would have failed at minimum impairment.
Benner v Canada [1997] – Citizenship
SC held that it was a breach of equality rights to impose MORE stringent req’s for Canadian citizenship on a person born outside Canada before 1977 to a Canadian mother than on a person born outside Canada before 1977 to a Canadian father. Under the federal Citizenship Act, the person born to a Canadian mother had to apply for citizenship and pass a security check, while the person born to a Canadian father was entitled to citizenship automatically upon registering the birth in Canada. The federal gov’t attempted to justify the impugned provision by submitting that the req of a security check was a rational means of screening potential citizens to keep out dangerous persons.
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1.
(The applicant in this case illustrates the point, b/c he had been charged w/ a murder and pleaded guilty to manslaughter) SC assumed that the screening out of dangerous persons was an important objective, BUT the Court held that there was NO rational connection between the objective and the discrimination. The children of Canadian mothers could not rationally be regarded as more dangerous than the children of Canadian fathers. Therefore, the leg’n failed the rational connection requirement and it was NOT necessary to go on and consider the other factors.
Greater Vancouver (2009) – Advertisements on sides of buses
The challenged law prohibited the placing of political messages on the sides of buses (where commercial advertisements were permitted). This was held to be a limit on freedom of expression. Under Ss. 1, the Court held that the obj of a “safe, welcoming transit system” was sufficiently important to justify some limits on freedom of expression, e.g., advertisements that were discriminatory or advocated violence or terrorism. BUT, the Court held that the political character of a message had no bearing on whether the message created an unwelcoming environment for transit users and thus there was NO rational connection btw the obj and the law banning political messages. SC held that the law also failed the minimum impairment test, b/c a ban on ALL political messages was broader than was needed to accomplish the legislative purpose. Hogg argues that the latter ground is stronger than the former. It was surely not irrational for the transit authorities to conclude that harsh political messages on strongly-felt issues like abortion or the Middle East would offend the sensibilities of some of their riders. Deschamps J, for the majority, almost conceded as much by asserting that “citizens, including bus riders, are expected to put up with some controversy in a free and democratic society”
Hogg used to believe that the requirement of rational connection had little work to do and was redundant, but NOW concedes that it is possible to imagine a case where the rational connection test has an independent role to play.
A law could be so poorly designed to meet its (important) objective that the law would fail the Ss. 1 justification, even though it had ONLY a minimal effect on a guaranteed right and even though a better designed law would have a more severe impact on the guaranteed right. In such a case, the law would fail the requirement of rational connection even though it would pass the requirement of least drastic means. Hogg gives stupid and insulting example of drug trafficking case, making the accused bear the onus of proving their name.
(b) Causation
Essence of rational connection is a causal relationship btw the objective of the law and the measures enacted by the law. SC does NOT always insist on direct proof of the causal relationship!!!
RJR-MacDonald v Canada (1995)
The obj of the law, ban on advertising of tobacco, was to reduce consumption of tobacco. The objective limited freedom of expression; could it be justified under Ss. 1? At the trial, a parade of expert witnesses called by both sides from all over the world debated the issue of whether the ban on advertising would indeed reduce consumption. TJ found that the steady decline in tobacco use in all developed countries (some of which had enacted advertising bans and some of which had not) was unaffected by the presence or absence of advertising and he specifically rejected the evidence to the contrary as being unreliable and w/o probative value. TJ concluded that there was NO rational connection btw the advertising ban and obj of reduced consumption & that the law (failed the minimum impairment test) was unjustified under Ss. 1 SC was unanimous on the position that the rational connection test WAS satisfied. La Forest J, for the 4 dissenters (who would have upheld the law under Ss. 1), held that “the common-sense connection between advertising and consumption” was “sufficient to satisfy the rational connection requirement” McLachlin J, for the 5-J majority (who struck down the law on the basis that it FAILED the minimum impairment test), agreed with La Forest J that the rational connection test was satisfied.
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She said that a causal connection based on “reason” or “logic” would suffice, even though the evidence was “admittedly inconclusive” She did, however, hold that one provision of the Act, Ss. 8, which prohibited the use of the tobacco trademark on articles other than tobacco products (such as a tobacco brand logo on a cigarette lighter), did NOT satisfy even a “causal connection based on logic or reason” and failed the rational connection test.
38.11 Least Drastic Means (a) Minimum impairment
The idea is that the law should impair the right no more than is nec to accomplish the desired objective, or, in other words, that the law should pursue the objective by the least drastic means. The test should be described as the minimum impairment test not the minimal impairment test.
Examples of laws that have failed the least drastic means test:
CC’s felony-murder rule was held to be too drastic a means of discouraging the use of weapons by criminals (rule removed the need to prove intent or objective foreseeability where accused had a weapon): R v Vaillancourt [1987] Quebec’s prohibition of the use of English in commercial signs was held to be too drastic a means of protecting the French language, although requiring the use of French is acceptable: Ford v Que; Devine v Que [1988] Alberta’s rule prohibiting Alberta lawyers from entering into partnership with lawyers not resident in Alberta was held to be too drastic a means of regulating the standards of the legal profession: Black v Law Society of Alta [1989] Alberta’s prohibition of the publication of accounts of matrimonial litigation was held to be too drastic a means of safeguarding the privacy of individuals: Edmonton Journal v Alta [1989] Ontario’s prohibition on advertising by dentists was held to be too drastic a means of maintaining high professional standards: Rocket v Royal College of Dental Surgeons [1990] A federal ban on all advertising of tobacco products was held to be too drastic a means of curtailing the consumption of tobacco: RJR-MacDonald v Canada A board of inquiry order that a person employed in a non-teaching position by a school board must be fired if he continued his dissemination of anti-Semitic ideas was held to be too drastic a means of rectifying a discriminatory climate in the school: Ross v New Brunswick School District No 15 [1996] Restricting spending in referendum campaigns to those affiliated with an official Yes committee or No committee was held to be too drastic a means of equalizing the financial resources available to both sides of the campaign Libman v Que [1997] 3 SCR 569 Prohibiting the publication of opinion polls in the final three days of an election campaign was held to be too drastic a means of protecting voters from inaccurate information: Thomson Newspapers Co v Can [1988] Prohibiting the peaceful distribution of leaflets by a striking union at sites not involved in the labour dispute was held to be too drastic a means of minimizing disruption to businesses not involved in the dispute: UCFW v Kmart Canada [1999]
Dunmore v Ontario [2001] – Agricultural workers excluded from Ontario labour relations statute
Majority SC held that the exclusion from Ontario’s labour relations statute of agricultural workers was a breach of the workers’ freedom of association guaranteed by Ss. 2(d). Obj of exclusion was to relieve the farm economy of Ontario of the formalism of collective bargaining, which was seen as inappropriate in a sector with many family-owned farms, and of the risk of strikes, to which agriculture was peculiarly vulnerable b/c of seasonal character. SC accepted these objectives, BUT the Court held that the exclusion failed the least drastic means (or minimum impairment) test, because it was a “total exclusion” By this, the Court meant that some OTHER regime of labour law, one that did NOT include rights to collective bargain and to strike, could have been devised & enacted for agricultural workers. SC went on to hold that the Leg was under a positive duty to devise and enact some new regime of labour relations law for the agricultural workers. In order to hold the attention of the Leg, the Court struck down the provision excluding them from the statute, so that they were automatically included in a statute that the Court acknowledge was
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inappropriate, BUT the Court postponed this order for 18 months to allow the Leg to substitute a new statute that would be appropriate. (b) Margin of appreciation or measure of discretion
If Ss. 1 is to offer any real prospect of justification, the judges have to pay some degree of deference to legislative choices. SC quickly recognized that some margin of appreciation (or measure of discretion) had to mitigate the least-drastic-means requirement.
R v Edwards Books and Art (1986)
SC upheld the Ontario Sunday-closing law that applied to retail businesses in the province. SC held that the law infringed freedom of religion, BUT that it was justified under Ss. 1 SC held that the obj of the law, which was to provide a common day of rest, was sufficiently important to justify overriding a Charter right. The question was whether the law satisfied the requirement of least drastic means. The law contained a “sabbatarian exemption” for retailers who observed Saturday as the Sabbath. However, ONLY small retailers – those employing no more than 7 people and using no more than 5,000 square feet of retail space – were entitled to the exemption. The issue in the case resolved itself into whether the law had made an adequate accommodation of those who observed Saturday as their Sabbath. On this point, the Court fractured into 3 camps:
First camp
Dickson CJ (who had written Oakes opinion), softened the test by saying the test was whether the law abridged the freedom of religion of Saturday observers “as little as is reasonably possible” (the word “reasonably had not appeared in that phrase in Oakes). As to the precise form of the legislative limit, it was “one that was reasonable for the legislature to impose”. The courts were “not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line”. The exemption in the Act “represents a satisfactory effort on the part of the Legislature of Ontario to that end *the accommodation of Saturday observers+ and is, accordingly, permissible”
Second camp
La Forest J was even more deferential towards the province’s policy choice. He would have upheld the law, EVEN IF it had contained no sabbatarian exemption. He said that “a legislature MUST be given reasonable room to manoeuvre” In particular, it seemed to him that “the choice of having or not having an exemption for those who observe a day other than Sunday MUST remain, in essence, a legislative choice”
Third Camp
ONLY Wilson J applied the remorseless logic of “least drastic means” to insist that the law must contain a sabbatarian exception and that the exception MUST extend to all Saturday-observing retailers, NOT just those with no more than 7 employees and 5,000 square feet of space.
[Beetz J (with McIntyre J) did not discuss Ss. 1 at all, because in his view the Sunday closing law did not breach freedom of religion.] Post Edwards Books The cases after Edwards Books have applied the req in a flexible fashion, looking for a reasonable legislative effort to minimize the infringement of the Charter right, rather than insisting that ONLY the least possible infringement could survive. R v Whyte [1988] – Driver has care & control of vehicle – reverse onus
SC upheld the CC provision that presumes that a person occupying the driver’s seat of a vehicle has the care and control of the vehicle for the purpose of the drunk driving offence.
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This reverse onus clause infringed the presumption of innocence in order to make it easier to secure convictions. Dickson CJ described the clause as a “restrained parliamentary response to a pressing social problem” and “a minimal interference with the presumption of innocence”
Canadian Newspapers Co v AG of Canada [1988] – disclosure of complainant in sexual assault case
SC upheld a CC provision authorizing a court order banning the disclosure of the identity of the complainant in a case of sexual assault. Order by the Court was mandatory IF it was requested by the complainant or the prosecutor. It was argued that a discretionary ban would be a less severe limit on freedom of the press. Lamer J for the Court held that ONLY a mandatory ban would provide assurance to a complainant that her identity would not be disclosed and therefore only a mandatory ban would serve the purpose of fostering complaints by victims of sexual assault
British Columbia Government Employees’ Union v AG of British Columbia [1988] – BC court picketing
SC upheld an injunction prohibiting the union, which was on strike, from picketing the courts of BC, where some of its members worked. Holding that “a picket line ipso facto impedes public access to justice” Dickson CJ for the Court held that the injunction limited freedom of expression by the least drastic means because the union was free to picket workplaces other than the courts.
United States v Cotroni [1989] - Extradition
SC upheld the extradition to the US of a Canadian citizen. Extradition infringed the citizen’s mobility right under Ss. 6 of the Charter, BUT the objective of suppressing crime was sufficiently important to support a limit on the right. Wilson and Sopinka JJ (dissenting) held that in this case, extradition did NOT limit the right as little as possible, b/c the accused was charged with a crime that had allegedly been committed in Canada; he could therefore have been prosecuted in Canada as an alternative to his extradition. La Forest J for the majority answered this by insisting that the req of least drastic means MUST be applied “flexibly” Because there could be procedural or evidentiary reasons why the other country was a preferable forum, he held that the right “is infringed as little as possible, or at the very least as little as reasonably possible”
Re Ss. 193 and 195.1 of the Criminal Code [1990] (the Prostitution Reference)
SC upheld the offence of communicating for the purpose of prostitution. This was a limit on freedom of expression that was justified by the obj of eliminating the nuisance of street solicitation. Dickson CJ and Lamer J for the majority emphasized the difficulty of devising legislative solutions and the Court’s inability “to second-guess the wisdom of policy choices made by our legislators” They held that the law passed the least drastic means test. Wilson J in dissent pointed out that the law prohibited communications between prostitutes and customers regardless of whether traffic congestion, noise or other form of nuisance was caused by the activity; she though that the law failed the least drastic means test.
Harvey v New Brunswick [1996]
SC upheld a provision of a provincial elections law that imposed a five-year disqualification on a member of the legislative assembly who had been found guilty of a corrupt or illegal practice. This was a breach of the right of a citizen to be a candidate for election to a legislative assembly under Ss. 3. Of course, it would have been a lesser infringement of the right if the disqualification were for less than five years. La Forest J for majority quoted Edwards Books for proposition that the Court ought NOT to substitute its opinion as to where to draw a line that is inevitably somewhat arbitrary.
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Among the considerations that are invoked by the Court in support of a degree of deference to the legislative choice are:
Where the law is designed to protect a vulnerable group (eg, children): Irwin Toy; Where the law is premised on complex social-science evidence (eg, about the effect of advertising); Where the law deals with a “complex social issue” (eg, smoking): JTI-Macdonald Corp [2007] Where the law reconciles the interests of competing groups (eg, mandatory retirement); and Where the law allocates scarce resources.
38.12 Proportionate EFFECT
R v Oakes last step was said to require “a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, AND the objective which has been identified as of ‘sufficient importance’” R v Edwards Books and Art, Dickson CJ rephrased the req by saying that “their effects *ie, the effects of the limiting measures] must NOT so severely trench on IND or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgement of rights” Dagenais v CBC [1994] Lamer CJ added to the req by saying that it should also take into account the “proportionality between the deleterious and the salutary effects of the measure”
Hogg argues that this step is redundant and that if the Court has already found that the limiting law pursues a sufficiently important objective, the final step has no work to do. *** This argument was specifically mentioned and rejected by McLachlin CJ in Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567 at [75]-[76]: “Because the minimal impairment and proportionality of effects analyses involve different kinds of balancing, analytical clarity and transparency are well served by distinguishing between them. Where no alternative means are reasonably capable of satisfying the government’s objective, the real issue is whether the impact of the rights infringement is disproportionate to the likely benefits of the impugned law. Rather than reading down the government’s objective within the minimal impairment analysis, the court should acknowledge that no less drastic means are available and proceed to the final stage of Oakes.” As a result, a legislative objective may, in principle, be sufficiently important to justify limiting the claimants’ right (step 1), but the least drastic means of accomplishing the objective may still have too drastic an effect on the claimants’ rights for the law to be a reasonable limit under Ss. 1 (step 4). *** Hutterian Brethren case (2009) – Photograph requirement
Alberta’s highway traffic law required a photograph of each holder of a driver’s licence. SC held that the law limited the religious freedom of the Hutterian Brethren because they believed that the Bible forbade them from having their photographs taken. SC held by a majority that the law was justified under Ss. 1 The law passed the first 3 steps of the Oakes test, BUT McLachlin CJ for the majority made clear that (contrary to Hogg’s argument) the fourth step also had to be satisfied. She determined that the fourth step was satisfied because the salutary effects of the universal photo requirement outweighed the deleterious effects on the claimants’ religious rights. Three dissenters reached opposite conclusion on the balance btw salutary and deleterious effects. In practice, the courts have been UNWILLING to req the state to compromise its policy in any significant way – the legislative obj is given priority and is NOT “balanced” against the religious practice. An exception will be made for a religious practice ONLY if this can be done w/o detracting from the effectiveness of the law. Result is that the state was found to have NO DUTY to compromise its policy, in even the most minor way, to accommodate a religious practice
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Alberta v Hutterian Bretheren of Wilson County - 2009 Facts Highway Traffic Act makes photos on licenses mandatory to prevent identity theft Hutterites are prohibited by the second commandment (forbids idolatry) from having their pictures taken Require highway transportation and photo ID impediment Holding There is Ss. 2(a) impairment, BUT passes the Oakes test & Ss. 1 justification. Reasons (McLachlin CJC) Infringement of Ss. 2(a) happens when: o Claimant sincerely believes the practise has a nexus with religion o Impugned measure interferes in a way that is more than trivial or insubstantial
Prescribed by law o Impugned measure is sufficiently accessible and intelligible to be “prescribed by law” o BOTH McLachlin and Abella in agreement
Section 1 analysis (Oakes test) o (i) Qualifying the measure’s objective Benefits and detriments balanced. Both McLachlin and Abella agree universal’s photo requirement’s objective is pressing and substantial enough to justify limits on Charter rights. o
(ii) Determining rational connection McLachlin and Abella accept that universal photo requirement is rationally connected to the goal of alleviating risks of identity theft
o
(iii) Seeking Less Intrusive Means McLachlin rebuffs Wilson Colony’s suggestion of driver’s license w/ “Not to be used for identification purposes”. Issues that the one-to-one correspondence between issued licenses and photos in the data bank would be lost.
o
Government must choose the least drastic means of achieving its objective Court should not accept an overly-exacting formulation of the objective that would severely restrict the government at this stage Only way to significantly reduce the risk of identity theft is with the requirement – claimant asks government to significantly compromise the objective Not the broad goal of eliminating all identity theft Distinction between reasonable accommodation as in Multani and the Oakes test where the validity of the law is at stake “The question the court must answer is whether the Charter infringement is justifiable in a free and democratic society, not whether a more advantageous arrangement for a particular claimant can be envisioned”
(iv) Assessing Proportionality What is the extent of the deleterious effects? Tipping the scales was that Traffic Act imposes a cost on those choosing not to have their photo taken BUT the cost does NOT rise to the level of depriving the Hutterian claimants of a meaningful choice as to their religious beliefs – they are free to arrange TP transportation to receive social services
Salutary effects Enhancing the diver’s licensing scheme Assisting in roadside safety and identification Harmonizing Alberta’s system with other jurisdictions
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Legislators must NOT wait for proof the law will be effective, only must show the possibility Charter does not insulate religious people from the costs of practicing their religion This requirement imposes the cost of obtaining other forms of transportation
Dissent (Abella J) Makes a point of quantifying risks flowing from such exemptions. Province revealed NO evidence that special licenses granted between 1974 and 2003 in any way compromised the integrity of the licensing system Hutterites apparently commit no serious crimes 700,000+ Albertans who do not hold a driver’s license
Broad reading of purpose – preventing identity theft Therefore fails at minimal impairment
Ratio Some burdens can be imposed on practice of a religion and not violate Ss. 2(a)
38.13 Application to equality rights
Oakes test is offered by Dickson CJ as a universal rule, applicable to ALL Charter infringements. Whether this is actually the position was left in some doubt by Andrews v Law Society of BC (1989) and the opinion of McIntyre J who said that the Oakes test was “TOO stringent for application in all cases” However, Hogg argues that the opinion of McIntyre J has been implicitly overruled.
Andrews v Law Society of BC [1989]
Question in this case was whether BC’s req of Canadian citizenship as a qualification for admission to the legal profession infringed Ss. 15 of the Charter. SC held unanimously that it did, BUT divided on the question of justification under Ss. 1 McIntyre J (in dissent) effectively rejected the Oakes test, at least for equality cases. He said: 1. “There is no single test under Ss. 1; rather, the Court MUST carefully engage in the balancing of many factors in determining whether an infringement is reasonable and demonstrably justified.” What McIntyre J was concerned about was the fact that legislative bodies had to make “innumerable distinctions” btw groups and individuals in the pursuit of “desirable social goals” and, in making these distinctions, it was not reasonable to demand “the standard of perfection” that was contemplated by Oakes. Applying more flexible standard, held that the citizenship requirement WAS justified under Ss. 1 Lamer J (also in dissent) agreed with McIntyre J. La Forest J said that he was “in general agreement” with McIntyre J’s views on Ss. 1, although he held that, even on the basis of a lower standard than Oakes, the citizenship requirement could not be justified under Ss. 1 La Forest J therefore voted with the maj to strike down the citizenship req. Going against McIntyre J is that fact that the decision in Andrews severely limited the scope of Ss. 15, confining it to discrimination on the basis of the listed grounds of “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability” and “analogous ground”. This restriction led Wilson J to hold that the Oakes test “remains an appropriate standard” for Ss. 15 cases: “Given that Ss. 15 is designed to protect those groups that suffer social, political and legal disadvantage in society, the burden resting on government is appropriately an onerous one” She therefore applied the Oakes test and held that the citizenship req could NOT pass it. Dickson CJ and L’Heureux-Dubé J agreed with Wilson J. In the result, 6 judges in Andrews voted by a majority of 4:2 to strike down the BC law. BUT, because La Forest J, although voting with the majority, expressed himself as in general agreement with McIntyre J’s statement of Ss. 1 principles (although not his application of those principles), Court actually divided evenly on whether Oakes test should apply in equality cases. Hogg argues Wilson J’s view should be preferred and the Oakes test should apply.
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38.14 Application to qualified rights (a) Scope of s 1
Does Ss. 1 have a role to play in justifying infringements of Charter rights that are by their own terms qualified by notions of reasonableness or regularity? Generally, YES.
(b) Section 7
Section 7 guarantees the right not to be deprived of life, liberty and security of the person “except in accordance with the principles of fundamental justice”. It is clear then that Ss. 7 can be limited by a law that conforms to the principles of fundamental justice. Does Ss. 1 permit other limits?
R v Morgentaler (No 2) [1988]
Majority SC held that the abortion offence in the CC infringed Ss. 7 of the Charter. Each of the 3 majority opinions went on to consider whether the law could nonetheless be justified under Ss. 1 (and held that it could NOT be). Hogg argues however that the discussions of Ss. 1 justification essentially rehearsed points already discussed under fundamental justice. The finding that the abortion law offended fundamental justice, argues Hogg, virtually entailed a finding that the law was NOT a “reasonable limit” and was NOT “demonstrably justified in a free and democratic society”. Hogg cites examples of other cases where the SC has usually applied Ss. 1 before holding that a breach of Ss. 7 invalidated a law and that the Ss. 1 justification has been upheld in minority opinions, BUT never by a majority of the Court.
(c) Section 8
Section 8 guarantees the right to be secure against “unreasonable” search and seizure.
Hunter v Southam [1984]
SC elaborated a set of requirements for leg’n that authorizes a search or seizure and by this ruling has given a particular meaning to the word “unreasonable” in Ss. 8 The word “reasonable” in the entirely different context of Ss. 1 is not restricted in the same fashion. Although the words are the same, the tests they require are DIFFERENT. In principle, it is possible to imagine a law that fails the narrow test of reasonableness in Ss. 8, BUT passes the broader test of reasonableness in Ss. 1 After a law has been found in violation of Ss. 8, Ss. 1 MUST then become operative to allow the Crown to lead evidence of reasonableness and demonstrable justification to support search/seizure
(d) Section 9
Section 9 guarantees the right NOT to be “arbitrarily” detained or imprisoned.
R v Hufsky [1988]
Charter challenge to a spot-check programme by police, under which motor vehicles were stopped at random at a check-point to check for drunkenness and other traffic violations. SC held that a driver stopped by police under the spot-check programme had been arbitrarily detained in breach of Ss. 9, BUT the Court held that the procedure was justified under Ss. 1 The objective of preventing highway accidents was sufficiently important to justify arbitrary detentions and nothing less than a random stopping procedure would be as effective in detecting and deterring the commission of traffic offences. Court assumed without discussion that Ss. 1 was applicable to salvage an infringement of Ss. 9
(e) Section 11
Several of the rights of accused persons in Ss. 11 are qualified by requirements of reasonableness. It is in principle possible for a law to fail a requirement of reasonableness in Ss. 11 and still pass the more generous requirement of reasonableness in the different context of Ss. 1
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Mackin v New Brunswick (2002). Section 11(d), which guarantees the right to a trial by an “independent and impartial tribunal”, is in a special situation, b/c SC has held that Ss. 11(d) is reinforced by an “unwritten constitutional principle” of judicial independence This means, among other things, that “the standard application of Ss. 1 [presumably meaning the Oakes tests] could NOT alone justify an infringement of that independence” SC struck down a NB statute abolishing supernumerary status for judges of the provincial court, on the ground that it impaired the financial security required for judicial independence. Gonthier J for the majority acknowledged that the statute was passed for the “legitimate purpose” of enhancing the flexibility and efficiency of the provincial court, BUT he refused to examine the statute through the normal Oakes tests. INSTEAD, he held that the financial security of the judges could be reduced ONLY “in cases of dire and exceptional financial emergencies caused by extraordinary circumstances such as the outbreak of war or imminent bankruptcy” Since these conditions did NOT exist in NB when the statute was enacted, Ss. 1 justification was NOT available. (f) Section 12
Hogg argues that perhaps the Ss. 12 right not to be subject to any “cruel and unusual treatment or punishment” may be an absolute right (ie, it can never be justifiably limited). However, in R v Smith [1987] the majority, having decided that a minimum prison sentence for importing narcotics was cruel and unusual, proceeded to consider (and reject) Ss. 1 justification. Only Le Dain J, concurring (at 1111) and McIntyre J, dissenting (at 1085) regarded Ss. 1 as unavailable to justify a limit on Ss. 12.
38.15 Application to the common law
The Oakes test applies to common law limits on rights. It is well established that a rule of the Common Law may be a limit “prescribed by law” under Ss. 1 and in two cases Common Law rules in derogation of Charter rights have been held to be justified under Ss. 1: 1. RWDSU v Dolphin Delivery (1986) (tort of inducing breach of contract by secondary picketing); and 2. BCEGU v BC [1988] (picketing of courthouses based on contempt of court)
R v Swain [1991]
SC applied the Oakes tests to the common law rule that a Crown prosecutor may adduce evidence of the insanity of the accused against the wish of the accused. This rule was a violation of Ss. 7 of the Charter, b/c the evidence of insanity, if led by the Crown, limited the accused’s right to control his or her own defence. Majority held that the RULE failed the least-drastic-means branch of the Oakes tests and could not, therefore, be upheld under Ss. 1 However, while a rule of statute law that violated the Charter would have to be struck down, a rule of the Common Law could be amended by the Court itself. A less drastic rule, which would satisfy Ss. 1, would allow the Crown to adduce evidence of insanity ONLY after the accused had been found otherwise guilty of the offence charged. The issue of insanity would THEN be tried (in front of the same trier of fact) before any final verdict was entered. Lamer CJ, speaking for the majority, said that he could see “no conceptual problem with the Court simply enunciating such a rule to take the place of the old rule”!!! The offending rule of the CL was transformed into a NEW rule that was compatible w/ Charter.
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R v Daviault [1994]
Majority SC held that the Common Law RULE that self-induced intoxication was no defence to a criminal charge offended Ss. 7 and 11(d) of the Charter. The Court immediately constructed a new rule, that extreme intoxication was a defence, and that the defence had to be established by the accused on the balance of probabilities. The imposition of the onus of proof on the accused was a breach of the presumption of innocence of Ss. 11(d), BUT the Court held that it was justified under Ss. 1 The Ss. 1 analysis was very brief and did not follow the Oakes tests at all.
R v Stone [1999]
SC held that the Common Law defence of automatism had to be established by the accused on the balance of probabilities. Court acknowledged that this was a change in the law and that it was a breach of Ss. 11(d), BUT held that the shift to the accused of the onus of proof was justified under Ss. 1 As in Daviault, the Ss. 1 analysis was brief and did NOT follow the Oakes tests.
Swain, Daviault and Stone were criminal cases in which the Charter applied because the Crown was a party to the proceedings. The Charter does NOT apply to the common law in its application to private parties, ie, where no governmental actor is involved.
However, SC has held that the Charter applies indirectly to the Common Law, because the Court will examine whether the Common Law is consistent with “Charter values” and, if it is not, the Court will modify the Common Law to make it consistent with Charter values.
Hill v Church of Scientology [1995]
In a defamation action btw private parties, the SC considered whether the Common Law of defamation was consistent with Charter values. Cory J, for the Court on this issue, said that it was NOT appropriate to apply “the traditional Ss. 1 analysis” in cases where the Charter was not directly applicable. Instead, there should be a “more flexible” balancing of the competing values and the onus rested with the Charter claimant to persuade the Court that the Common Law should be modified He concluded that the law of defamation struck an appropriate balance btw the Charter value of freedom of expression and the non-Charter (but important) value of personal reputation; therefore, there was no need to modify the CL. See also Dagenais v CBC (1994) (modifying CL power to issue publication ban injunction).
38.16 Emergency measures
The Charter makes no explicit provision for the enactment of emergency measures. The War Measures Act was repealed in 1988 and replaced by the Emergencies Act, which also authorizes restrictions on civil liberties. It will be for the courts to decide, in a situation of emergency, whether such restrictions are reasonable and demonstrably justified in a free and democratic society. In Re BC Motor Vehicle Act [1985] Lamer J suggests an expanded role for Ss. 1 in a situation of emergency.
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CHAPTER 42: RELIGION
41.1 Distribution of Powers
A long line of cases has held that laws compelling the observance of Sundays or holy days are within the exclusive competence of the federal Parl’t under its power over criminal law. These laws took the classical criminal law form of a prohibition coupled with a penalty and there was a long history of the criminalization of profaning the Sabbath. There are, however, other cases where it has been held or assumed that ANY law restricting freedom of religion is within exclusive federal competence. 1. Saumur v City of Quebec [1953], Rand, Kellock, Locke, Estey, Cartwright and Fauteux JJ ALL took this position, although Rinfret CJ, Taschereau and Kerwin JJ rejected it. Federal jurisdiction over religion is also assumed in Walter v AG Alta [1969] (communal property law not in relation to religion, despite its special impact on Hutterite colonies).
R v Edwards Books and Art [1986]
SC upheld provincial legislation that prohibited retail stores from opening on Sundays. Law within provincial power over property and civil rights, b/c pursued secular purpose of providing pause day for retail, rather than religious purpose of compelling observance of the Christian Sabbath. However, law w/ exemption for stores of less than a specified size that observed Saturday as a holiday. “Sabbatarian” exemption had religious purpose of accommodating Saturday Sabbath observers. Did the religious purpose render the exemption unconstitutional? Dickson J, for the whole Court on this issue, held that it did NOT. It was open to a provincial Leg “to attempt to neutralize or minimize the adverse effects of otherwise valid provincial legislation on human rights such as freedom of religion” Dickson J concluded that “the Constitution does NOT contemplate religion as a discrete constitutional ‘matter’ falling exclusively within either a federal or provincial class of subjects” Legislation concerning religion could therefore be competent to either the federal Parl’t OR the provincial Legs, depending upon the other characteristics of the law… In classifying a law for the purpose of the federal distribution of powers, the law’s impact on religion would NOT necessarily be the critical factor. The req of a common pause day for retail workers could be relieved for some groups for religious reasons w/o destroying the law’s classification as coming within property and civil rights in the province.
The power to make laws respecting religion is like the power to make laws respecting other civil liberties, which is also for the most part divided btw the two levels of gov’t and is not the exclusive preserve of either one.
42.2 Section 2(a) of the Charter
Section 2(a) guarantees “everyone” w/ “fundamental freedom” of “freedom of conscience and religion”. It’s subject to Ss. 1 (the limitation clause).
42.3 Freedom of conscience
Section 2(a)’s reference to “conscience” would protect systems of belief which are not theocentric (centred on a deity) and which might not be characterized as religions for that reason (or for some other reason).
42.4 Freedom of religion R v Big M Drug Mart [1985] – LEADING CASE
SC struck down the Lord’s Day Act, federal statute prohibited (w/ exceptions) comm. activity on Sunday. Dickson J for the majority held that the purpose of the Act, which he derived from the history and terms of the Act, was “to compel the observance of the Christian Sabbath”. Purpose infringed freedom of religion of non-Christians, b/c, by virtue of the guarantee of freedom of religion, “gov’t may NOT coerce individuals to affirm a specific religious practice for a sectarian purpose” Dickson J said:
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2.
“Essence of the concept of freedom of religion is right to entertain such religious beliefs as a person chooses, right to declare religious beliefs openly and w/o fear of hindrance or reprisal and the right to manifest religious belief by worship and practice or by teaching and dissemination”. Language borrowed from International Covenant on Civil and Political Rights
US CASE LAW Employment Division, Department of HR of Oregon v Smith (1990)
Dissenting minority held that NO compelling state interest in banning the use of drugs in a limited ceremonial context, and that the law should be constitutionally inapplicable to the religious use of peyote
Religious Freedom Restoration Act of 1993
Congress took minority view in Smith and adopted it as statutory rule
Gonzales v O Centro Espirita Beneficente Uniao do Vegetal (2006)
Unanimous that ban application to sect would substantially burden sincere exercise of religion, and that Gov’t had failed to establish ANY compelling interest in ban to religious ceremonies of 130 member sect
42.5 Sunday observance R v Big M Drug Mart (1985)
See Above
R v Edwards Books and Art [1986]
Challenge to Ontario’s Retail Business Holidays Act The Act prohibited retail stores from opening on Sunday. Legislative history showed purpose was secular one of providing a common pause day for retail workers. SC held nonetheless that the law infringed Ss. 2(a), because its effect was to impose an economic burden Created a “competitive pressure” to abandon a non-Sunday Sabbath, which abridged freedom of religion. However, the law was NOT struck down, b/c the Court upheld it under Ss. 1. Secular purpose of providing a common pause day was suff. Imp. to justify limit on freedom of religion. However, there was division as to whether the Leg had used the least drastic means for its objective. “Sabbatarian exemption” for retailers who closed on Saturdays, BUT size restriction on those retailers. Majority said this was the least drastic means, allowing the Leg some leeway in designing the exemption. Wilson J, dissenting, would have required exemption to all Saturday-observing retailers, w/ no exception
Peel v Great Atlantic and Pacific Co (1991) (Ontario CA)
Ontario Leg amended the Act in line with Wilson J’s reasons, removing the size limits on the exemption! The amended Act was challenged and upheld by the Ont CA. Increased exemption eliminated the “competitive pressure” on non-Christians that SC in Edwards Books had held to be an infringement of freedom of religion. Thus, amended Act did NOT fall foul of Ss. 2(a) of the Charter and was valid w/o recourse to Ss. 1
42.6 Other religious practices R v Big M Drug Mart (1985) o o o
Dickson J held freedom of religion included the right “to manifest religious belief by worship and practice”. However, “such manifestations do NOT injure his/her neighbours OR their parallel rights to hold and manifest beliefs and opinions of their own”. Freedom of religion would NOT protect human sacrifice or refusal of schooling or child medical treatment
Young v Young [1993] - SC
Judge granted custody to the mother of 3 young children and had granted access to the father, BUT w/ restriction that father NOT discuss Jehovah’s Witness religion w/ children or take them to religious services.
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Restriction b/c father’s strong religious views were NOT shared by mother & source of conflict btw them. Father attacked the restriction on the ground, among others, that it denied his right to freedom of religion. BC CoA struck down restriction, holding that it was breach of freedom of religion to preclude a parent from sharing his religious beliefs with his children. . SC upheld the BC CA decision (4:3), BUT only Sopinka J followed the same line of reasoning as the BC CoA. Sopinka J: The restriction on religious communication, although imposed in the best interests of the children, would offend freedom of religion, UNLESS shown that the restriction was needed to avoid a “risk of substantial harm” to the children; since, evidence established no risk, restriction struck down. The other 6 members of the Court held that NO order respecting custody or access that was made in the best interests of the children could violate freedom of religion. Right to freedom of religion did NOT guarantee ANY religious activity that would not be in the best interests of the children. Because Ss. 2(a) was inherently limited in this way, no consideration of Ss. 1 was needed and the propriety of the judge’s order was to be determined w/o reference to the Charter. McLachlin J (with Cory and Iacobucci JJ) still agreed with the BC CA that the restriction should be struck down, b/c in her view the restriction was not in the best interests of the children. L’Heureux-Dubé J(with La Forest and Gonthier JJ) dissented on the ground that the TJ’s finding that the restriction was in the best interests of the children should be upheld.
B (R) v Children’s Aid Society [1995] – Jehovah’s Witness – Blood Transfusion
Majority SC held that the decision of parents to prohibit doctors from giving a blood transfusion to baby daughter was protected by freedom of religion, b/c dictated by their beliefs as Jehovah’s Witnesses. Doctors considered that her life would be in danger if she did not receive a blood transfusion. Application made under Ontario’s child welfare statute to make child a temp ward of Children’s Aid Society. Application granted by a provincial court judge and Children’s Aid Society consented. The order was then terminated and the child was returned to her parents. Parents challenged this procedure as a violation of their freedom of religion and a 5 judge majority agreed. La Forest J, for the majority (L’Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ), the right of parent to choose treatment in accordance w/ parent’s religion is “fundamental aspect of freedom of religion” Statutory procedure that had been employed in this case was “serious” infringement of the parents’ rights However, he held that the statutory procedure WAS justified under Ss. 1 Iacobucci and Major JJ (w/ Lamer CJ & Cory J) stated intrinsic limits on freedom of religion - “parent’s freedom of religion does NOT include imposing religion on children that safety, health or life of the child”
AC v Manitoba [2009]
14 year old girl who was a Jehovah’s Witness, admitted to hospital w/ an illness involving internal bleeding. Blood transfusion was prescribed by doctors as a matter of urgency, which she refused b/c religious belief The Director of Child and Family Services, acting under powers conferred by Manitoba’s Child and Family Services Act, apprehended her as a child in need of protection and sought a treatment order under the Act, which authorized a court to order treatment that “court considers to be in the best interests of the child”. No order could be made w/ respect to a child that was 16 or older UNLESS the court was satisfied that she lacked the capacity to decide on her medical treatment, BUT presumption of capacity did NOT apply here. Judge heard application & accepted that AC, was mature to make decisions about her medical treatment. He concluded nevertheless that, b/c she was in imminent danger if not of death then of serious damage, a treatment order would be in her best interests. Order that blood transfusion given immediately; done; the treatment was successful; and AC recovered. Validity of the treatment order was moot, AC (and parents) appealed treatment order to bring challenge to power conferred by Manitoba Act to override the wishes of a child under 16 on a matter of religious belief. Majority SC upheld the power in the Act. Abella J for the majority held that there was NO breach of Ss. 2(a) b/c the best-interest standard of the Act req judge to take account of the child’s religious convictions AND to give increasing weight to the child’s wishes as her age, maturity and independence increased. McLachlin CJ, concurring in the result, held power to override the child’s religious convictions was a breach of Ss. 2(a), BUT was justified under Ss. 1 to protect the life and health of vulnerable young people. Binnie J, who dissented, held that power to override religious convictions of a child under 16 mature enough to make decisions about treatment was a breach of Ss. 2(a) that could NOT be justified under Ss. 1
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Ross v New Brunswick School District No 15 [1996]
Ross a schoolteacher publicly disseminated (NOT in teaching, BUT in books, letters to the newspaper and television appearances) opinion that Christian civilization was being destroyed by an int’l Jewish conspiracy. SC unanimously held that this activity was protected by freedom of religion. La Forest J, did NOT articulate which of the tenets of Christianity called for this anti-Semitic activity… NO evidence on issue, other than that of Ross, who described his writings as “honest religious statements”. He relied on his opinion in B (R) v Children’s Aid Society for proposition that freedom of religion was to be given a BROAD interpretation, unlimited by consideration of impact of religious practice on rights of others. (The judges who rejected this proposition in the B (R) case agreed with La Forest J’s opinion in this case). Ross removed from his teaching position by board of inquiry’s order constituted under NB’s HR statute. Board of inquiry, after hearing the evidence of Jewish students and parents, had found the school board’s failure to dismiss or discipline Ross amounted to discrimination in the provision of educational services. SC held that the board of inquiry’s order infringed Ross’s freedom of religion & expression However, MOST of board’s order justified under Ss. 1 to remedy anti- Semitic environment in the school. Removal from teaching to a non-teaching position with the school board JUSTIFIED, but it did not justify a part of order that req Ross be dismissed from non-teaching position IF anti-Semitic activity resumed That part of the order was therefore unconstitutional and was severed from the rest of the order.
*** Syndicat Northcrest v Amselem [2004] – Iacobucci J para 1-104
At issue was the right, claimed by condo owners who were orthodox Jews, to build “succahs” (temp dwellings) on balconies of condo apartments where lived for a 9-day period yearly during “Succot” festival Condo by-laws prohibited “constructions of ANY kind whatever” on balconies. Rule had aesthetic purpose of preserving the harmonious external appearance AND keeping free of obstruction as fire escape routes. By-laws were agreed to by EACH owner, who, on the purchase of each apartment, signed a “declaration of co-ownership” containing the by-laws. K basis of by-laws protect from Charter attack for lack of gov’t Claimants avoided this problem by making their claim under the guarantee of freedom of religion in Quebec’s statutory Charter of HR and Freedoms, which applies to private as well as gov’t action. 8/9 judges explicitly assumed freedom of religion had same meaning as under Ss. 2(a) Cdn Charter The other condo owners sought an injunction to prevent the building of the succahs. SC held that the claimants were entitled to erect their succahs in defiance of the by-laws. According to Iacobucci J, the religious practice need NOT be part of an established belief system or even a belief system shared by others; it could be unique to the claimant. The practice need not be perceived as obligatory by the claimant; “voluntary expressions of faith” were equally protected NEC to qualify for Charter protection was sincere belief that practice was “of religiously significant” Religious belief was “intensely personal and can easily vary from one person to another”. The test was wholly subjective. Expert evidence was NOT NEC, b/c the claimant ONLY had to show the sincerity of his belief. And even the inquiry into “sincerity of belief” was to be “as limited as possible”. 1. Eg, it did not matter that the claimants had not attempted to build their own succahs in the past, because “individuals change and so can their beliefs”. 2. “The State is in no position to be, nor should it become, the arbiter of religious dogma” “Religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith” Bastarache J, dissenting, held that a purely personal and private religious commitment was NOT enough to provide constitutional protection for a practice prohibited by law. 1. Religion was a collective enterprise and its precepts were susceptible of objective proof 2. Since the expert evidence in this case denied that orthodox Jews were under obligation to build their own personal succahs, Bastarache J’s position would have defeated the claimants. Binnie J’s dissent relied on the fact that the claimants had chosen to purchase a condo in a building with bylaws that prohibited constructions on the balconies. 1. The majority’s decision to allow the claimants to defy the by-laws on religious grounds went “TOO far in relieving private citizens of the responsibility of ordering their own affairs under K’s which they chose to enter into and upon which other people rely”
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Congrégation des Témoins de Jéhovah v Lafontaine [2004]
The Jehovah’s Witnesses applied to the municipality of Lafountaine for permission to build a place of worship (a Kingdom Hall) on land located in a residential zone in which worship was prohibited use. The zoning by-law would have to be amended, which involved a public hearing and a referendum. Despite land available in ANOTHER zone where worship permitted, McLachlin CJ for majority sent issue back to municipality to reconsider decision NOT commence process for amending the zoning by-law. McLachlin CJ decided on administrative-law and made ONLY passing reference to freedom of religion
However, Hogg argues that decision ONLY explicable b/c religious practice in issue, since a proposal to build a factory OR an office building in a residential zone would surely not require such intensive consideration by a municipality.
The four dissenters explicitly addressed the issue of freedom of religion. They held that the building of a place of worship was protected by freedom of religion and a municipality would come under a constitutional duty to amend zoning by-laws IF no land available for the building of a place of worship In this municipality, however, there WAS zone in which church could be built and land was available Religious adherents were not entitled to build a place of worship anywhere they chose and could not insist on the municipality changing its zoning to accommodate a preference as to location. On this view, compliance with the zoning by-laws did not cause a breach of freedom of religion.
Multani v Commission scolaire Marguerite-Bourgeoys [2006]
Was a 13 yr old Sikh boy constitutionally entitled to wear a “kirpan” (a dagger with a metal blade) to his public school in the face of a school board regulation (in a statutorily authorized code of conduct) that prohibited students from bringing weapons and other dangerous objects to school? SC held unanimously that the regulation infringed the student’s freedom of religion. Court found that student sincerely believed that religion req to wear a kirpan made of metal at ALL times. Following AMSELEM, need show “sincere personal & subjective belief in religious significance of kirpan” Student refused to wear symbolic kirpan, as suggested by review committee It was irrelevant that “other Sikhs accept such a compromise”, because THIS student held sincere belief. B/c school reg prevented student from acting on a sincere religious belief, reg contravened Ss. 2(a). Under Ss. 1, Charron J for the majority agreed that safety in the schools was a sufficiently important objective to justify limiting a Charter right. There was no doubt that a bladed weapon could cause injury, whether by the owner or by another student, by deliberate use or by accident. BUT held that prohibition on weapons was TOO broad to satisfy minimum impairment of the Oakes test. In order to limit the student’s freedom of religion as little as possible, she ordered the school to permit the wearing of the kirpan, BUT on condition that it be kept in a wooden sheath and sewn into the student’s clothing so not be easily removed – a solution the governing board and the review committee had rejected. This was well short of a guarantee that the kirpan would never emerge in the course of rough play, bullying or fighting, but she held that it was a reasonable accommodation that the school was required to make. Charron J agreed with lower court decisions upholding an absolute prohibition of the kirpan in aircraft and even in courtrooms, commenting that each environment would justify “a different level of security” BUT the unanimous Court concluded that the school’s governing board and the review committee were wrong to insist on the same high level of safety in the schools as in the courtrooms!!!!!
*** Alberta v Hutterian Brethren of Wilson Colony [2009] McLachlin C.J.28-34 & Abella J 125-132
A colony of Hutterian Brethren brought proceedings against the Alberta gov’t to obtain exemption on religious grounds, from req of provincial law that driver’s licence MUST display a photograph of the holder. Hutterian Brethren are a Christian denomination who live in communal colonies and who believe that having their photos taken (even under compulsion of law) is forbidden by the Bible. Alberta (in common w/ the other provinces) requires driver’s licence to display a photograph of the holder. In 2003, data bank established of digital photos of all licensed drivers, to be used to prevent identity theft. For this purpose to be fully realized, ALL drivers had to be photographed and have their images placed in the data bank. Province amended its licensing reg’s in 2003 to make the photo requirement universal. SC held that the Hutterian claimants had a sincere religious belief that prohibited their being photographed and that belief was protected by Ss. 2(a) of the Charter. However, the majority held that the universal photo requirement was justified under Ss. 1: it served an important purpose and did not impose a severe burden on the claimants, who could avoid the requirement by using alternative means of transport!!! Req was reasonable limit on freedom of religion & Hutterian claimants were NOT entitled to exemption.
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42.6A Waiver of religious practices *** Syndicat Northcrest v Amselem [2004] – Iacobucci J para 1-104
SC held that a party to a contract could invoke freedom of religion to resile from a contractual obligation, in that case, a promise not to build structures on the balconies of condos owned by the claimants. The majority rejected the argument of the co-owners that the claimants had waived their religious right. Iacobucci J, for the majority, held that the claimants’ sincere religious belief that they should build and occupy “succahs” on their balconies for the nine-day festival of “Succot” (something that most of them had not done in previous years) trumped by-laws of condo to which the claimants had agreed on purchase Iacobucci J wondered whether a religious practice could be waived at all, he wondered if the by- law was sufficiently clear to amount to a waiver, he thought the by-law should have made explicit reference to the Charter right to freedom of religion, he held that the claimants “had no choice” but to sign their agreement to the by-laws in order to live in that building and that in any case the claimants “did not read” the by-laws (which they signed and were given a copy of on purchase). Binnie J, dissenting, replied that the claimants had a choice of places to live and they “undertook by K to owners of building to abide by rules of building even if they accepted the rules without reading them” Therefore, the claimants should be defeated by their “contract with their co-owners that they would not insist on construction of a personal Sukkah on the communally owned balconies of the building”.
Bruker v Marcovitz [2007]
A husband and wife, as part of a divorce settlement, negotiated and signed a corollary relief agreement, which provided for spousal support, child support, custody and access. Because the 2 spouses were Orthodox Jews, the agreement included promise to attend before a rabbinical court to obtain a “get”, a Jewish divorce, which MUST be granted by husband and agreed to by wife. IF husband refuses the get, the wife is an “agunah” or “chained wife”. Even if the couple are divorced under Canadian civil law (as this couple was), any new marriage by the wife would be unrecognized by Jewish law, the relationship would be treated as adulterous and any children would be treated as illegitimate. Husband refused for 15 years to grant “get” and granted ONLY after wife brought action for breach of K. In light of Amselem, he invoked freedom of religion under the Quebec Charter as the basis for his absolute right to withhold the “get” in spite of his signed contract to grant it. Majority SC rejected this and upheld an award of damages for breach of K against the husband. Abella J, for the majority, held that the husband, by entering into the corollary relief agreement, had converted his religious right to withhold the “get” into a contractual obligation to grant the “get”. He was bound by K to fulfil that obligation despite its religious aspect. Abella J - Husband’s “binding promise” was “ONLY 1 factor that weighs against claim”; the MOST important factors were “equality public policies, religious freedom & autonomous choice in marriage and divorce”.
Hogg argues – that the claim that these factors were MORE important than the K is puzzling, since the husband would certainly NOT have been held liable for withholding the get in the absence of a legally binding K to grant it. Perhaps what she meant was that a K that waived a right to a religious practice would NOT be enforced IF it were contrary to public policy to do so. BUT that doesn’t explain Amselem – there was nothing contrary to public policy in making people keep condo balconies free of construction).
42.7 Religion in public schools Zylberberg v Sudbury Board of Education (1988) (Ontario CoA)
Challenge brought to an Ontario reg, made under statutory authority, that req a public school to open or close each school day with “religious exercises consisting of the reading of Scriptures or other suitable readings and the repeating of the Lord’s Prayer or other suitable prayers”. Reg conferred a right on each pupil NOT to participate in the religious exercises. Majority held that reg was unconstitutional, b/c it “imposed Christian observances upon non-Christian pupils and religious observances on non-believers” Reg was NOT saved by the fact that it was wide enough to authorize non-Christian prayers and readings. In Sudbury, school board had prescribed ONLY Christian exercises (which caused the litigation); BUT the Court held that, EVEN IF school board had in fact prescribed non- Christian exercises as well as Christian exercises, the reg would still be bad b/c it authorized a school board to prescribe ONLY Christian exercises.
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Further, the regulation was NOT saved by a pupil’s right to be exempted from the religious exercises. The regulation still exerted an indirect coercion on pupils to participate, because of the pressure to conform to the majority’s norms, which would make it difficult in practice for a minority pupil to claim the exemption.
Canadian Civil Liberties Association v Ontario (1990) (CoA)
After Zylberberg, province removed the unconstitutional reg, BUT kept in place a regulatioregn dating from 1944 that required a public school to devote two periods per week to “religious education”. Parent had right to apply to the principal of the school to exempt a pupil from the religious education. The Ont CoA struck down this reg too. Court concluded that from legislative history of reg and the curricula that were placed before it that the purpose of the reg was indoctrination of Christian belief, as opposed to education about many religions. Court followed Zylberberg to hold that the reg was an unconstitutional attempt to impose the majority’s Christian beliefs on all school children and that it was not saved by the provision for exemption, which parents would be reluctant to utilize for fear of embarrassing their children.
It would NOT violate freedom of religion to have a course on religion that examined various religions in a neutral way, NOT promoting any one or assuming the superiority of any one religion.
42.8 Denominational schools
Private schools may offer religious exercises and instruction SC has implied that Ss. 2(a) req province to permit children to be educated OUTSIDE secular public system, ALTHOUGH the province MUST have the right to reg alternative schools, including denominational schools, in order to ensure that a core curriculum and adequate facilities and standards of teaching are offered. R v Jones [1986], majority (4:3) held that NOT violation of Ss. 2(a) to req application be made to provincial Dept. of Edu for approval of private school OR certificate of efficient instruction for home teaching. 1. Minority held that this requirement was contrary to Ss. 2(a) (although it was saved by Ss. 1) for a person who believed on religious grounds that he ought to be able to teach his children without reference to the state. It is a reasonable inference that for both majority and minority a prohibition on alternative, religious schooling would violate Ss. 2(a).
In Canada, systems of state aid to minority Protestant & Catholic schools have existed since confederation and are guaranteed by Ss. 93 of the CA, 1867. Moreover, the Protestant and Catholic schools recognized by Ss. 93 may receive public funding that is denied to the schools of religious denominations not recognized by Ss. 93.
Adler v Ontario [1996], SC held that a province’s failure to fund the schools of religious denominations NOT recognized by Ss. 93 was NOT a breach of freedom of religion under Ss. 2(a) OR of equality under Ss. 15 Big M Drug Mart (1985), Dickson J left open the q’s whether Ss. 2(a), despite its lack of an establishment clause (ie a clause intended to prohibit the establishment of an official church or religion, as in the first amendment to the US Constitution), prohibits state aid to denominational schools other than those entitled under Ss. 93. Hogg argues that it’s hard to see why Ss. 2(a) should be regarded as infringed by a programme of state aid, provided all religions are treated equally.
42.9 Religious marriage
In ALL Cdn provinces, under provincial law, marriages may be solemnized in civil or religious ceremonies. BUT, always been accepted without q’s that religious ceremony can be denied by a church, synagogue or mosque to persons who want to get married, BUT who are not adherents of that particular faith. Equally accepted is the right to refuse to perform a religious ceremony that would be contrary to the particular faith. Eg, a church that does not recognize divorce may refuse to marry divorced persons. Such couples could get married in a civil ceremony.
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*** Re Same-Sex Marriage [2004] 3 SCR 698 – Paragraphs 47 - 60
SC was asked if Parl’t could enact a bill legalizing same-sex marriage for civil purposes. Court held that Parl’t could do so under its power over “marriage” in Ss. 91(26) of the CA, 1867. Bill also included section: “Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.” Court held that his provision was ultra vires Parl’t, b/c it related to “the solemnization of marriage”, which was a provincial head of power under Ss. 92(12). BUT the Court went on to hold that the protection intended by the invalid section was provided by Ss. 2(a) of the Charter. The Court said: “The performance of religious rites is a fundamental aspect of religious practice.” Therefore, “absent unique circumstances with respect to which we will not speculate, the guarantee of religious freedom in Ss. 2(a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages contrary to their religious beliefs” (Accordingly, provinces could NOT use power over solemnization of marriage to compel (eg, in a HR code) religious official to perform same-sex marriage ceremony contrary to his or her religious beliefs.) The Court indicated, obiter, that “the compulsory use of sacred places *eg, a church hall+ for the celebration of such marriages” would also be forbidden by Ss. 2(a) of the Charter
The bill to legalize same-sex marriage “for civil purposes” was subsequently enacted. ***R v NS, 2012 SCC 72, [2012] 3 S.C.R. 726 Facts o o o
o o
The complainant, N.S. alleged that the D’s, MdS and MlS (cousin and uncle), sexually assaulted her. She was called by the Crown as a witness at the preliminary inquiry. N.S. stated that b/c she is a Muslim, she is required to wear a niqab (a headdress that covers her head with a small opening that reveals her eyes) when men are around. She wished to testify while wearing her niqab, even though she has previously removed her niqab for a driver’s license photo (para. 4). Preliminary inquiry judge found that N.S.’s religious belief was “not that strong” and ordered removal. On appeal, the Ontario Court of Appeal found that if both rights (a witnesses’ freedom of religion and the accused’s right to a fair trial) were engaged, and a witness had a “sincere religious belief”, a judge could order the witness to remove her niqab.
Held - McLachlin o
o
Court rejected extreme rules (e.g. a rule that always required a witness to remove her niqab or alternatively, a rule that always allowed the witness to wear the niqab). The former is inconsistent with our jurisprudence, while the latter may lead to wrongful convictions. Instead, Court provided a test (para. 3), whereby a witness may be required to remove the niqab if: o (a) it is “necessary to prevent a serious risk to the fairness of the trial” and “reasonably available alternative measures will not prevent the risk”; and o (b) the salutary effects of removing the niqab (e.g. fair trial) outweigh the deleterious effects (e.g. freedom of religion). In using this approach, four questions must be answered (para. 9):
(1) Would requiring the witness to remove the niqab while testifying interfere with her religious freedom? o o o
Q’s is whether the witness sincerely believed that her religion requires her to wear a niqab Preliminary inquiry judge concluded that belief NOT strong b/c of license photo could be seen by men THIS critiqued and held that the matter MUST be returned to judge to decide on NS’s sincerity and NOT her belief
(2) Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness? o
Two key components activated by this case are effective cross-examination and assessment of credibility
(3) Is there a way to accommodate both rights and avoid the conflict between them (also known as the Dagenais/Mentuck approach) o
To answer parties MUST place evidence outlining options- IF no accommodation THEN go to final q’s
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(4) If no accommodation is possible, do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so? o o o
o o
o o
To rely on Ss. 2(a) of the Charter (freedom of religion), the witness MUST show that s/he holds a sincere religious belief (Amselem). Court found preliminary inquiry judge failed proper inquiry at this stage (para. 12). An accused’s right to a fair trial, under Ss. 11(d), includes the right to make full answer and defence (para. 15). The accuseds submit that the niqab would interfere with their right to cross-examine the witness and hinder the use the witness’ facial expressions to detect deception (para. 19). Covering a witness’ face may impede credibility assessment by the judge or jury (para. 25). However, whether or not a particular witness’ face coverage will impact a particular accused’s trial fairness will depend on the evidence and the circumstances of each individual case (para. 28). Ultimately, if there is a conflict and accommodation is not possible, a proportionality inquiry must be done (something similar to the Oakes test). In making this assessment, the judge ought to consider the deleterious effects on the individual witness (para. 36), the broader societal harm (para. 37), and the benefits to the interest of having a fair trial (para. 38). The majority dismissed the appeal. The preliminary inquiry judge is to make an assessment based on the factors set out by the majority.
Dissent – Abella o o
o o o
IF religious belief was sincere, witness should NEVER be required to remove her niqab as a condition precedent to testifying [similar views expressed by LEAF/intervened – Women’s Legal Education and Action Fund] Found that a “probing inquiry into the claimant’s sincerity of belief is unwarranted” (para. 88). She was unwilling to find that unless the “entire package” (i.e. the whole face) was available for others to observe, the witness’s credibility cannot be assessed (para. 91). Justice Abella was very concerned that a requirement to remove the niqab would have the effect of requiring a witness to “choose between her religious beliefs and her ability to participate in the justice system” (para. 94). Also, given that the context of this case is a sexual assault charge, she is concerned that for sexual assault victims, this may not be a meaningful choice (para. 96). Justice Abella would have allowed the appeal and permitted N.S. to testify with the niqab (para. 110).
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CHAPTER 43: EXPRESSION
43.1 Distribution of powers (a) Classification of Law
Law’s impact on civil liberties has NOT leading characteristic in determining the law’s classification However, political speech may be distinct matter assigned exclusively to federal Parl’t Other kinds of speech are distributed btw the 2 levels of gov’t by reference to the facility OR activity wherein the speech is regulated, i.e.: 1. Comm. advertising within provincial jurisdiction as an incident of the sale of goods or services in province, BUT advertising federally regulated medium, i.e. radio or TV, within federal jurisdiction. Further, general prohibition of false/misleading advertising could be enacted by federal Parl’t as crim law.
(b) Political speech Re Alberta Statutes [1938] (Alberta Press case (1938))
SC struck down Alberta statute compelling newspapers in AB to publish gov’t reply to ANY criticism of provincial gov’t policies. 5/6 JJ primary reason that law ancillary to and dependent upon OTHER social credit leg which was invalid. Duff CJ (with Davis J) asserted, obiter, that free political discussion (“the breath of life of parliamentary institutions”) was SO important to nation as a whole that it could NOT be regarded as a value that was subordinate to other legislative objectives It could not be regarded as a local or private matter (Ss. 92(16)) or as a civil right “in the province” (Ss. 92(13)). It was outside the power of the provinces and within the exclusive power of the federal Parl’t. Cannon J, who alone did not rely on the ancillary point, found that the federal power stemmed from the criminal law power and was invalid as outside the power of the provinces. Duff CJ did NOT commit himself to any head of federal legislative power, BUT appeared to assume it would be the POGG power.
Samur v City of Quebec [1953]
SC struck down by-law that req permission of Chief of Police for distribution of pamphlets in city streets. 3 of 5 majority JJ used Duff CJ and Cannon J dicta in the Alberta Press case as the basis for their decision.
Switzman v Elbling [1957]
Quebec’s “Padlock Act” illegal to use house “to spread communism / bolshevism by any means whatever”. SC majority of 8:1 held the Act to be invalid. Majority held that control of use of property was colourable and that the pith and substance of the law was the prohibition of certain political ideas. Only 3 of the 8 (Rand, Kellock and Abbott JJ) classified the law as in relation to speech and assigned it to the federal jurisdiction on that basis. The other 5 did NOT express opinion as to legislative jurisdiction over speech, b/c they held that the prohibition of the propagation of communism w/ sanctions for breach was tantamount to the creation of a new crime and was within federal jurisdiction as a criminal law. Taschereau J, dissenting, classified statute as a law in rel’t to use of property and upheld it on that basis.
It is plausible to conclude from this line of cases that at least some forms of regulation of political speech should be characterized as the denial of a fundamental freedom of nat’l dimensions, which is competent ONLY to the federal Parl’t, either under its criminal law power or under its POGG power.
However, since the 1950s, the tendency of the cases has been to expand provincial power over speech, even in cases where the power was exercised in derogation of civil libertarian values.
(c) Provincial power
While it will NOT extend to the reg or prohibition of political ideas, DOES authorize the regulation of speech on commercial or local grounds
Hill v Church of Scientology [1995]
Tort of defamation is provincial, despite impact on speech. Law of torts is within prov power (Ss. 92(13))
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A-G Que v Kellogg’s Co [1978]; Irwin Toy v Que
Advertising is within provincial jurisdiction, b/c it is part of the reg of business and of consumer protection that is within provincial power (Ss. 92(13))
Nova Scotia Board of Censors v McNeil [1978]
SC upheld provincial censorship of films on basis that exhibition of films was a business within provincial jurisdiction and censorship was part of the reg of the business (Ss. 92(13)) OR of local matter (Ss. 92(16)). However, the difficulty was that the censorship law did not supply any criteria for the censor board, which could therefore have exercised its power to suppress political or religious ideas. BUT Ritchie J for the majority overcame this difficulty by holding that the powers of the censor board should be “read down” to exclude the censorship of political or religious ideas. The censor board’s power was thus limited to applying moral standards to the depiction of sex and violence, issues of primarily local significance.
A-G Can and Dupond v Montreal [1978]
SC upheld Montreal by-law imposing temp ban on assemblies and parades on municipal parks & streets. Beetz J for the majority of the Court held that this was a reg of the municipal public domain that was within the provincial power over local matters (Ss. 92(16)). He also said “none of *the freedoms of speech, of assembly and association, of the press and of religion+ is a single matter coming within exclusive federal or provincial competence” However, he went on to hold that the by-law’s prohibition did NOT involve a denial of free speech, saying, “Demonstrations are NOT a form of speech BUT of collective action”. BUT the by-law did not just ban “demonstrations”; it would have prohibited an assembly that had gathered quietly to listen to speakers.
Nowadays, such laws could have to survive Charter review.
However, the cases establish an extensive provincial power to reg speech or assembly in local parks and streets and to reg speech in the media that come w/n provincial jurisdictions, including films, live theatre, books, magazines, newspapers, tapes and records. Power does NOT extend to denial of political speech, BUT this is narrow category after McNeil and Dupond.
(d) Federal power
Federal Parl’t (as well as power over political speech) also has the power, by a prohibition coupled w/ a sanction, to make particular kinds of speech criminal, as it has done, eg, in the crimes of sedition, fraud, obscenity, hate propaganda and communicating for the purpose of prostitution (Pg. 43-6 of Hogg)
Capital Cities Communications v CRTC [1978]
Federal gov’t also has power to reg speech in the media that come within Fed jurisdiction, i.e., radio and TV
43.2 Section 2(b) of the Charter
Section 2(b) of the Charter guarantees to “everyone” the “fundamental freedom” of: 1. “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”
Section 2(b) is subject to Ss. 1. B/c of Ss. 1, JR under the Charter is a two-stage process: 1. Does the law (or action) have the purpose or effect of limiting a guaranteed right; and 2. IF law does have that purpose or effect, does law satisfy the standards of justification under Ss. 1? Unqualified language of Ss. 2(b), reinforced by broad interpretation that has been given to that language, means that, in most of the freedom of expression cases, it is easy to decide that, yes, the impugned law DOES limit Ss. 2(b); the constitutionality of the law will turn on the outcome of the Ss. 1 inquiry.
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43.3 Comparison with first amendment
First amendment to American Bill of Rights: “Congress shall make no law… abridging the freedom of speech, or of the press”. It is the reference to “expression” in Ss. 2(b) that is the critical one and the word expression is VERY broad – broader than “speech”. (However, there is no limitation clause in the American Bill of Rights)
43.4 Reasons for protecting expression Irwin Toy v Quebec [1989] o
Dickson CJ, Lamer and Wilson JJ embraced the following 3 reasons for protecting freedom of expression: 1. seeking and attaining the truth is an inherently good activity; 2. participation in the social and political decision-making is to be fostered and encouraged; and 3. the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated
R v Sharpe [2001] (example of the 3rd. Rationale)
Constitutional challenge to the Criminal Code offence of possession of child pornography. Child porno defined in VERY specific terms as pics of children engaged in sexual activity, pictures of children’s sexual organs or anal areas & material promoting sexual activity w/ children = CC offence. SC acknowledged that material made NO contribution to democratic gov’t and made NO contribution to the search for truth. BUT the Court held that is should be constitutionally protected under Ss. 2(b) because of its role as an instrument of personal fulfilment…………….. The majority was even prepared to say that purely private child pornography of certain kinds (material created by the accused and recordings of lawful sexual activity by the accused) “deeply implicates Ss. 2(b) freedoms, engaging the values of self-fulfillment and self-actualization and engaging the inherent dignity of the individual” (per McLachlin CJ) The concurring minority also accepted the rationale of personal fulfilment BUT did so reluctantly, describing it as self-fulfillment “at a base and prurient lvl” (per L’Heureux-Dubé, Gonthier & Bastarache JJ) Court was unanimous that the CC offence was justified under Ss. 1 of the Charter, although majority carved out exceptions for the purely private forms of child pornography referred to above (which were not in issue in the case except as hypothetical examples).
43.5 Meaning of expression a) Definition of expression R v Sharpe (2001)
SC has defined “expression” as: “Activity is expressive IF it attempts to convey meaning”
Re Ss. 193 and 195.1 of Criminal Code (Prostitution Reference)
ALL forms of art are suff communicative to be protected: novels, plays, films, paintings, dances & music
Ford v Que [1988]
Speaker’s choice of language is protected, so req that Comm. signs be French ONLY is a violation of Ss. 2(b)
(b) Criminal expression Prostitution Reference (1990)
SC held that communicating for the purpose of prostitution, which was an offence under the CC, was protected expression under Ss. 2(b) Majority upheld the law under Ss. 1 Lamer J (concurring judgment) pointed out that activities should NOT be denied Ss. 2(b) protection “solely b/c they have been made the subject of criminal offences” Ss. 2(b) protects perjury or fraud & harmful (BUT communicative) activity (counselling a suicide).
Lamer J’s dictum was confirmed in the later cases of R v Keegstra [1990] and R v Zundel [1992] in which the CC offences of publishing hate propaganda and publishing false news were held to be in violation of Ss. 2(b)
The hate-propaganda offence, BUT not false news offence, was upheld under Ss. 1 by a narrow majority
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R v Lucas [1998] o
CC offence of publishing a defamatory libel w/ knowledge of its falsity was held to be in violation of Ss. 2(b) (although the provision was upheld under Ss. 1).
(c) Violence Prostitution Reference (1990)
Expressive activity that takes the form of violence is NOT protected by Ss. 2(b): “a murderer or a rapist cannot invoke freedom of expression in justification of the form of expression he has chosen”
R v Keegstra (1990)
However, threats of violence are protected by Ss. 2(b) A communication could be classified as a threat of violence ONLY by reference to its content and there are not content-relation restrictions on the Ss. 2(b) right
(d) Content neutrality R v Keegstra
“content of a statement cannot deprive it of protection accorded by Ss. 2(b), no matter how offensive” SC unanimous that promotion of hatred against Jews or other group, a CC offence, is protected by Ss. 2(b) Offence was upheld under Ss. 1, BUT by the bare majority of 4:3. SC even rejected the argument that Ss. 2(b) should be narrowed by reference to other provisions of the Charter, such as the guarantee of equality in Ss. 15 and the recognition of multiculturalism in Ss. 27 The fact that the CC provision was attempting to vindicate the values reflected in Ss. 15 and Ss. 27 was relevant ONLY to the Ss. 1 inquiry.
R v Zundel (1992)
SC struck down the false-news provision of CC, which made it an offence for a person to “wilfully publish a statement, tale or news that knew is false & causes or likely to cause injury or mischief to public interest”. Zundel, who had published pamphlet denying the Holocaust, was convicted under the false-news law. SC reversed the conviction on the ground that the law was unconstitutional. SC was unanimous that Ss. 2(b)’s protection extended to deliberate falsehoods, b/c truth or falsity of a statement can be determined ONLY be reference to its content. The principle of content- neutrality therefore dictated the answer. The Court, by a bare majority of 4:3, also held that the law could NOT be justified under Ss. 1
R v Lucas (1998) – Defamatory Libel
SC confirmed that deliberate falsehoods were protected by Ss. 2(b) At issue was the constitutionality of the CC’s offence of defamatory libel, which made it an offence to publish material known to be false and that would expose the victim to hatred, contempt or ridicule. SC held that the publication of defamatory libels was an activity that was protected by Ss. 2(b), BUT the Court upheld the prohibition under Ss. 1 as a justifiable means of protecting reputation from false attack. In course of Ss. 1 analysis, Cory J for the majority that defamatory libel, consisting of deliberate & harmful lies, was “so far removed from core values of freedom of expression that merits but scant protection” In a separate concurring opinion, McLachlin J expressed concern about allowing “the perceived low value of the expression to lower the bar of justification from the outset of the Ss. 1 analysis”. However, she also agreed that the offence should be upheld under Ss. 1
Canada v JTI-Macdonald Corp [2007]
SC upheld ban by federal Tobacco Act of “false, misleading or deceptive” advertising of tobacco products. Activity was expression that was protected by Ss. 2(b) and, like the regulation of other falsehoods, had to be justified under Ss. 1 of the Charter. However, false advertising of products that were harmful to health was of “low value” and its prohibition was justified under Ss. 1
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The principle of content neutrality means that Ss. 2(b) extends to much activity that is NOT worthy of constitutional protection.
SC has acknowledged that “NOT all expression is equally worthy of protection” (Zundel). However, the evaluation of the worthiness of the expression is relevant ONLY to the Ss. 1 inquiry.
Illustrates point that the expansion of the guaranteed right inevitably leads to an erosion of the severe standards of justification that the Court originally erected for Ss. 1!!!
43.6 Ways of limiting expression (a) Prior restraint
Usually MOST severe restriction on expression is a “prior restraint” on publication. A prior restraint is a law that prohibits the publication of particular material EITHER absolutely or under a requirement of prior approval by a censor. In all the cases listed in Hogg at 43-14, the Courts held that the prior restraint was a limit on freedom of expression (although SOME were saved under Ss. 1). Examples: Censorship of films, restrictions on importation of books and magazines, restrictions on reporting of judicial proceedings, publication ban on a fictional TV programme, a prohibition of election advertising on polling day, etc.
(b) Border control R v Butler [1992]
The federal Customs Tariff Act used to prohibit importation of “immoral or indecent” books & magazines and this was struck down in Luscher v Revenue Canada [1985] (CoA) as being TOO vague to serve as a reasonable limitation under Ss. 1 The “immoral or indecent” standard was replaced by the definition of “obscene” in the CC. SC held that the definition of “obscene” in the CC was a sufficiently clear standard and served sufficiently justified social purposes to serve as basis of criminal offence of possession / sale of obscene materials. Offence was a valid limitation of freedom of expression under Ss. 1
Little Sisters Book and Art Emporium v Canada [2000]
Bookstore challenged the prohibition in the Customs Tariff Act that used the same obscenity standard. Bookstore catered to gay and lesbian communities in Vancouver, had experienced great difficulty in importing homosexual erotica b/c of the frequency of seizures by customs officers. Bookstore attacked not only the definition of obscenity BUT also the customs border review procedures which disproportionately withheld homosexual literature. SC held that the prohibition on obscenity, having been upheld under Ss. 1 as a CC offence within the country, could also be used at the border. Binnie J for the majority acknowledged that the implementation of the prohibition by customs officials had been unconstitutionally discriminatory against homosexual literature, BUT he held that this outcome was NOT inherent in the definition of obscenity. He enumerated the inadequacies of resources, training, direction and procedure in the customs department which led to the excessive delays, seizures and confiscations that Little Sisters had endured and he directed the gov’t to repair the problems. Sol’n did not involve amendment of legislation, b/c failures at implementation lvl could be addressed at that level. The legislation was accordingly upheld. The majority DID strike down a reverse onus provision in the customs legislation that placed the burden of challenging customs classification on the importer. The majority held that, in its application to expressive material, the Crown should bear the burden of proving that the material was obscene. This was a minor point in that the reverse onus applied ONLY when an issue got to court and did not apply to the determinations made at the departmental level, which was the source of the problem.
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(c) Penal prohibition
The MOST common restriction on speech is a prohibition coupled with a penal sanction.
Canada v Taylor [1990]
The Canadian Human Rights Act contains a prohibition of “discriminatory practices”. One of those practices is the use of the telephone to spread messages of hatred against minority groups. Discriminatory practice does NOT give rise to an immediate penalty, BUT a Human Right Tribunal has the power to order that the practice cease. Once the order has been made, it can be entered as an order of the Federal Court and disobedience is THEN punishable as a contempt of court. Here, this entire process was followed and, when Mr. Taylor continued his telephonic messages of antiSemitism in defiance of the court order, he was committed to prison for contempt. He appealed the committal on constitutional grounds and the SC held that the ban on telephone messages violated Ss. 2(b) However the Court held that the ban was justified under Ss. 1 and Mr. Taylor stayed in prison.
Ross v New Brunswick School District No 15 [1996]
The public dissemination (outside the classroom) by a schoolteacher of anti-Semitic messages was found to be prohibited discriminatory practice by board of inquiry constituted under NB’s HR statute. Board of inquiry ordered school board that employed teacher to remove him to a non-teaching position. SC held that the order of the board of inquiry was a breach of Ss. 2(b), BUT that it was justified under Ss. 1 as a measure to reduce the climate of anti-Semitism that had developed at the school. However, SC held that the board of inquiry had overstepped the reasonable limit of Ss. 1 in also ordering the school board to dismiss the teacher from his non-teaching post if at any time in the future he were to resume his anti-Semitic activities. That part of the order was struck down as an unjustified breach of Ss. 2(b)
(d) Civil prohibition RWDSU v Dolphin Delivery [1986]
Where a civil obligation is created by the common law (which includes the law of contract), there will normally be NO Charter remedy, because the Charter does NOT apply to the rules of the common law that govern relations between private parties (Charter inapplicable to tort of inducing breach of contract). However, where the civil prohibition is created by statute, the Charter WILL apply and the prohibition will offend Ss. 2(b)
(e) Forced expression
Occasionally a person is forced by law to make a statement
RJR-MacDonald v Canada [1995]
A federal statute, the Tobacco Products Control Act, required cigarettes and other tobacco products to be sold in packages that displayed prescribed warnings of the health dangers of smoking. Warnings were unattributed, so that they could be interpreted as coming from the manufactures (INSTEAD of the true author, the federal gov’t) and the manufactures were prohibited form displaying any information of their own on the packages (except for the name of the product). Majority SC held that the requirement of unattributed warnings was a breach of Ss. 2(b) on the basis that “freedom of expression necessarily entails the right to say nothing OR the right not to say certain things”. Majority of the Court held that a simple requirement of health warnings on cigarette packages could be justified under Ss. 1, BUT that the gov’t had failed to establish the justification for the non-attribution of the warnings or for the prohibition of additional information on the packages. The requirement of unattributed warnings was therefore struck down.
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Canada v JTI-Macdonald Corp [2007]
After RJR, the Gov’t secured enactment of new Tobacco Act, which continued req of warnings packages. However, now the warnings were to be attributed to Health Canada. They were also required to occupy 50% of the surface of the package. Here, the Court unanimously upheld the new requirement. McLachlin CJ, stated“minor restrictions or req’s w respect to packaging” might NOT infringe Ss. 2(b) at all. BUT she acknowledged that a warning, albeit attributed to gov’t, that occupied 1/2 of space on package, “arguably rises to the lvl of interfering with how manufacturers choose to express themselves”. Held that Ss. 2(b) was infringed by the warning req. & that the requirement was justified under Ss. 1 Although the infringement would have been less if the size of the warnings were less, “evidence established that bigger warnings may have a greater effect. Parl’t is not req to implement less effective alternatives”.
Slaight Communications v Davidson [1989] – Letter of Reference
An adjudicator, exercising statutory powers conferred by the Canada Labour Code, ordered employer to provide reference letter to an unjustly dismissed employee and also stipulated the facts that were to be recited in the mandatory letter of reference. Majority SC held that it was a breach of Ss. 2(b) to order a person to make a statement, BUT, because the statement included “ONLY objective facts that are not in dispute”, the order was justified under Ss. 1
Lavigne v OPSEU [1991]
Was an “agency shop” clause in a collective agreement, which required non-members of the union to pay union dues, a breach of Ss. 2(b)? The evidence established that the union used some of its funds, which included the forced dues, to promote left-wing causes of which the complaining non-member (Lavigne) disapproved. La Forest J for the majority held that payments to the union were NOT expressive activity and therefore did NOT come within Ss. 2(b) Wilson J for the concurring minority held that a voluntary payment of dues could be expressive activity, BUT that the forced payment of dues did NOT imply support for the union’s views or preclude the payer from holding and expressing contrary views; she therefore agreed that there was no breach of Ss. 2(b)
(f) Language requirement Ford v Quebec [1988]
Quebec law req public signs & advertisements be in French ONLY was struck down as a violation of Ss. 2(b) Law did NOT restrict content of signs or advertisements; could contain any message provided was French. SC rejected argument that language was “merely a means or medium of expression”; rather, “it colours the content and meaning of expression”. SC concluded freedom of expression included “freedom to express oneself in the language of one’s choice” Req of exclusive use of French, involving prohibition of the use of other language, was unconstitutional.
Devine v Quebec [1988]
SC considered Quebec law req non-exclusive use of French for brochures, orders, invoices & other business docs; the documents had to be in French, BUT English (or any other language) could be used as well. The Court held that this law was also a breach of Ss. 2(b): “freedom consists in the absence of compulsion as well as an absence of restraint”. However, the Court upheld the non-exclusive requirement under Ss. 1
(g) Search of press premises
In two cases, majority held there was NO breach of Ss. 2(b) re issue of search warrants for press premises: 1. CBC v Lessard (1991); CBC v NB (1991).
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(g.1) Disclosure of journalists’ sources R v National Post [2010]
A journalist employed by the National Post newspaper was offered some information on a story he was pursuing on condition that the identity of the informant be kept confidential. The journalist was authorized by the newspaper to make promises of confidentiality and he made the promise demanded in this case. In due course, a plain brown envelope arrived in the mail which contained a document that appeared to indicate improper behaviour by the PM. Journalist made inquiries to check the authenticity of the document and was told that it was a forgery. One of the persons to whom these inquiries were directed informed the RCMP of the journalist’s possession of the document and the RCMP obtained a search warrant to require the newspaper to give up the document (and its envelope) on the ground that it was evidence of the offence of forgery. The newspaper applied to quash the warrant on the ground that police testing of the doc & envelope might lead to the ID of person who mailed it, causing the journalist’s promise of confidentiality to be broken. SC majority (8:1) rejected the newspaper’s application, holding that the search warrant was valid and had to be obeyed EVEN IF there was a risk of disclosing the identity of the confidential source. Binnie J (for the maj) restated the law respecting disclosure of journalists’ confidential sources. Acknowledged that freedom to publish news, which was guaranteed by Ss. 2(b), necessarily involved freedom to gather news and IMP element of news-gather function was ability to use confidential sources. IF the media were unable to provide anonymity to sources of info, some important sources would dry up and freedom of expression on matters of public interest “would be badly compromised” However, argument rejected that there was constitutional immunity against compelled disclosure Nevertheless, CL could “properly be developed to reflect Charter values” and held that CL should recognize a journalistic secret-source privilege which is closely aligned with the Charter guarantee of freedom of the press, but which would not have constitutional force and which would be applied on a case-by-case basis.
There were 4 elements to the privilege: 1. The journalist MUST have received a communication that originated in confidence that the identity of the informant would NOT be disclosed; 2. The confidence MUST be essential to the relationship in which the communication arises; 3. The relationship MUST be one that should be “diligently fostered” in the public good; and 4. The public interest served by protecting the identity of the informant MUST outweigh the public interest in getting at the truth.
4 element requires judge to weigh protection of valuable confidential rel’p against countervailing public interest in the investigation of crime OR national security, public safety or other public good. B/c of this balancing exercise, “NO journalist can give a source a total assurance of confidentiality”. Here, while the first 3 elements were satisfied, balance of public interest was in favour of disclosing doc, b/c it was physical evidence that would be essential to the investigation and proof of a serious crime. Therefore, the search warrant was property issued and had to be complied with despite the risk of breaching the confidence that had been promised to the source.
th
(h) Time, manner and place
Least severe form of restriction on expression. Eg, law might prohibit use of cartoons in advertising directed at children OR law might authorize a public official to stipulate time and route of a parade. These laws restrict expression in violation of Ss. 2(b), BUT b/c they do NOT regulate content of expression, a court would be likely to uphold the laws under Ss. 1 However, reg of time, manner and place could be so broad as to amount to significant restriction
Ramsden v Peterborough [1993]
A municipal by-law prohibited the placing of posters anywhere on municipal public property. The by-law was content-neutral and it prohibited ONLY one kind of expression (postering) on ONLY one kind of property (municipal public property). Nonetheless, by-law did close off MOST obvious public places to affix posters, i.e. utility poles. B/c public postering is inexpensive, & used by poorly funded groups to publicize their ideas, causes or events.
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Considerations persuaded SC that ban on postering was TOO BROAD to be upheld under Ss. 1, although the Court implied that a narrower by-law, more carefully targeted at such legitimate concerns as littering, aesthetic blight, traffic hazards and impediments to persons repairing utility poles, would be upheld.
Thomson Newspapers Co v Canada [1998]
SC struck down prohibition on publication of new opinion polls during last 3 days of an election campaign. Purpose was to prevent voters from being misled by inaccurate polls too late to be analysed and corrected. Although prohibition lasted for only 3 days, the Court STILL held that the measure was TOO severe a restriction on expression to be upheld under Ss. 1
UFCW v Kmart Canada [1999]
SC struck down provision in BC’s Labour Relations Code that prohibited a striking union from handing out leaflets at workplaces other than the struck premises. This prohibition, which was part of a prohibition of secondary picketing, applied ONLY during a strike or lockout and did NOT apply to the site of the strike or lockout. SC held that the goal of minimizing disruption to businesses that are NOt involved in labour dispute would justify a prohibition of conventional picketing, BUT NOT a prohibition of leafleting, which, like postering, was a traditional means of communicating information by poorly funded groups.
Pepsi-Cola Canada Beverages v RWDSU [2002]
Did a prohibition on secondary picketing exist at common law? In Saskatchewan, where secondary picketing was NOT governed by statute, court had issued an injunction prohibiting ALL secondary picketing by Pepsi-Cola employees, who were on strike against employer. The employees had picketed, not only the bottling plant where they worked (the primary location), BUT also shops that sold Pepsi-Cola products and a variety of other secondary locations. Injunction was limited by location, BUT was very sweeping in that ONLY primary location open to picketing. The Court held that, although the Charter does NOT apply to private disputes governed by the common law, the Court had the power to “develop” the common law to make it consistent with “Charter values”!!! SC held that common law did NOT authorize injunction that applied to ALL secondary locations regardless of the nature of the picketing activity. In order to protect freedom of expression, ONLY a more limited injunction could be issued, one that was premised on the commission of a wrongful act (a tort or a crime). Picketing of shops was peaceful and did NOT involve commission of wrongful act, this part discharged. However, the union had also been picketing the homes of Pepsi-Cola management personnel. Those pickets had been guilty of the tort of intimidation. That part of the injunction was accordingly affirmed.
43.7 Commercial expression (a) Protection of commercial expression
Two reasons why Comm. expression ought to be protected under a guarantee of freedom of expression: o (i) Literally falls within definition of “expression”; and o (ii) very difficult to distinguish commercial speech from other kinds of speech.
(b) Language requirements
Ford v Quebec (1988) 1. SC HAS held that Comm. expression protected by Ss. 2(b) freedom of expression guarantee 2. SC held that language-of-signs law violated Ss. 2(b) by prohibiting signs in the English language. 3. SC held that the law could NOT be justified under Ss. 1, b/c although it pursued an important purpose, it IMPAIRED the rights of English-speakers more than necessary.
(c) Advertising restrictions Irwin Toy v Quebec [1989]
SC upheld Quebec law that prohibited ALL Comm. advertising directed at children under 13. SC followed earlier decision in Ford that advertising was constitutionally protected by Ss. 2(b) of Charter.
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However, divided on the issue whether this law could be justified as a “reasonable limit” under Ss. 1 By a majority of 3:2, SC held that the protection of a particularly vulnerable group, ie, young children, was a sufficiently important purpose and the Quebec Leg should be allowed some leeway in deciding to accomplish that purpose by a ban on advertising directed at children. The ban was NOT an absolute one, in the sense that products such as toys and breakfast cereals could STILL be advertised, provided the advertising did not use cartoons and other techniques directed at children. As a result, the majority upheld the law.
Rocket v Royal College of Dental Surgeons [1990]
Under Ontario’s Health Disciplines Act, dentists were prohibited from advertising their services, with ONLY trivial exceptions for an exterior sign, business cards and the like. SC unanimously held that the dental reg was a violation of Ss. 2(b) W/ respect to Ss. 1, Court held that OBJ of maintaining high stds of prof. conduct would justify reg of advertising by profs., BUT particular reg was FAR BROADER than was necessary to accomplish that purpose. Eg, reg prohibited dentist from advertising office hours OR languages spoken – “info which would be useful to the public and present no serious danger of misleading the public or undercutting professionalism”. The Court struck down the regulation.
RJR-MacDonald v Canada [1995]
Federal Tobacco Products control Act, prohibited advertising of cigs & products, was unconstitutional. The Act infringed Ss. 2 (b). Regarding Ss. 1, the main difficulty for the federal gov’t was that the product itself was lawful Gov’t argued that a ban on the product was impracticable, b/c so many Canadians were smokers. Parl’t chose to ban advertising, intending to reduce consumption, & reduce harmful effects of smoking. Quebec Superior Court held that evidence failed to establish causal connection btw a ban and reduction Despite this, SC was unanimously prepared to find that there was enough evidence to establish a rational connection btw the advertising ban and the objective of reducing consumption. However, majority could NOT accept that a total ban on ALL forms of advertising, including purely informational advertising, was the least drastic means of accomplishing the objective. Majority concluded that the Act could NOT be justified under Ss. 1 and held that it was unconstitutional. The Court would have upheld a ban more carefully targeted at the recruitment of new smokers, eg, advertising directed to young people or advertising associating smoking with an attractive lifestyle
Canada v JTI-Macdonald Corp [2007]
Gov’t enacted a new Tobacco Act. New Act continued to ban advertising of tobacco products, BUT w/ limited exceptions for “information advertising” and “brand-preference advertising”, provided they were NOT “lifestyle advertising” or “advertising that could be construed on reasonable grounds to be appealing to young persons” (all the quoted terms being defined). Sponsorship of events by tobacco companies was ALSO banned. SC upheld the Act. Unanimous Court described the Act as “more restrained and nuanced than its predecessor” and as “a genuine attempt by Parl’t to craft controls on advertising and promotion that would meet its objectives as well as the concerns expressed by the majority of this Court in RJR”. SC held the Act was justified under Ss. 1. The public-health objective of the Act was important, the commercial expression that it restricted was of “low value” and a sufficient effort had been made to meet the minimum-impairment concerns that had defeated the predecessor Act in RJR.
(d) Signs R v Guignard [2002]
Municipal Quebec by-law prohibited advertising signs & billboards EXCEPT in industrial zones D was prosecuted under the by-law for erecting a sign on his property complaining about the delays of his insurance company in settling a claim. B/c sign named the insurance company, it fell within the by-law’s def’n of an advertising sign SC acquitted the D, holding that the by-law infringed his freedom of expression.
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Municipality attempted to justify the by-law as a reasonable limit that was “designed to prevent visual pollution and driver distraction” and Court acknowledged that a municipality might well want to maintain “a pleasant environment for the residents”. BUT, SC rejected the claimed justification, describing the by-law as “arbitrary”, as not being a “reasonable solution” and as “disproportionate to any benefit that it secures for the municipality” SC struck down the by-law, BUT gave the municipality six months to revise it.
Vann Niagara v Oakville [2003]
SC accepted a municipal by-law that banned “billboard signs” throughout the municipality. Billboard signs were defined as ground signs measuring more than 80 square feet. Arbour J (for the Court) agreed w/ dissenting opinion of MacPherson JA in Ontario CoA. MacPherson JA had held that the prohibition of ONLY large signs could be justified under Ss. 1 on the basis that it left room for commercial expression on smaller signs and the larger signs were the MOST likely to cause distraction to motorists and visual blight. CoA had unanimously struck down a second by-law that banned “TP signs” (signs that advertised products or services that were not produced on the premises where the sign was located). In the SC, Arbour J simply commented that NO appeal had been taken from that decision.
(e) Prostitution
Prostitution, like tobacco, is lawful in Canada. However, the CC makes it an offence to communicate in a public place for the purpose of engaging in prostitution.
Prostitution Reference (1990)
SC held that this type of “commercial speech” is protected by Ss. 2(b) However, a majority upheld the CC provision under Ss. 1. The purpose of eradicating the nuisance of street-solicitation justified the limit on expression. For the minority, the law was overbroad, b/c prohibited communications btw prostitutes and customers regardless of whether they were causing any harm to others.
43.8 Picketing
Probably best regarded as a kind of commercial expression, since its main purpose is to encourage employees NOT to work and consumers NOT to buy.
Dolphin Delivery (1986)
Union challenged constitutionality of injunction that had been issued by BC courts to prohibit members of union, which were on strike, from picketing the workplace of a firm that was NOT their employer. This “secondary picketing” was NOT provided for by the applicable federal labour law legislation, BUT the BC courts had held that secondary picketing in the circumstances of this case was prohibited by the common law; it constituted the tort of inducing a breach of contract. The courts had issued the injunction in order to stop the commission of the tort. SC held that the Charter had NO application to a dispute between 2 private parties that was governed by the CL. Thus, the Court refused to discharge the injunction. However, McIntyre J for the majority, recognized the “element of expression in picketing” and held that it was a protected expression under the Charter. He also went on to indicate that a prohibition on secondary picketing would be justified under Ss. 1 as a measure to prevent industrial conflict from spreading beyond the parties in dispute.
BCGEU v BC [1988] (the Vancouver Courthouse case)
Chief Justice of BC, had encountered a picket line at the courthouse, as soon as he reached chambers, on his own motion and w/o notice to the union, issued an injunction to prohibit the picketing of the courts. Union was on lawful strike and was picketing courts b/c that was where some of their members worked. Union made application to have injunction set aside on Charter grounds & application was denied by SC. SC held there was a legal basis for the injunction in that the picketing was criminal contempt of court.
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SC also held that the Charter applied to an injunction to prevent a criminal contempt of court AND that this injunction, by prohibiting picketing, was a limit on freedom of expression. However the Court held that the injunction was justified under Ss. 1 “Assuring unimpeded access to the courts” was a sufficiently important objective and the injunction was not overly broad because it “left the union and its members free to express themselves in other places and other ways so long as they did not interfere with the right of access to the courts”.
From the case:
[2] The position of the appellant Union was clearly set out in an affidavit of its director of membership services: "The Union hopes that people will support the Union by honouring the picket line. Honouring the picket line in every instance involves people exercising their right and freedom not to cross it. The Union recognizes that persons who cross only upon obtaining a pass have nevertheless honoured the line and thereby supported the Union in the dispute." The appellant did issue "picket passes" whereby it purported to authorize people, including officers of the court, to pass through the picket lines. [3] affidavit of Ronald Fratkin, a member of the Law Society of British Columbia, which reads in part: “I had occasion to observe that the BC Gov’t Employees' Union picket line was orderly and peaceful. Persons appearing to have business inside the Courthouse entered and left the building at will and at no time appeared to be impeded in any way by the picketers.” [3] Leaflets were distributed by a group known as BC Law Union urging members of the public who approached the court-house to respect the picket line and to encourage lawyers not to cross it except w/ the approval of the union upon the issuance of a picket pass. [31] Picketing a court-house to urge the public not to enter except by permission of the picketers could only lead to a massive interference with the legal and constitutional rights of the citizens of British Columbia
UCFW v KMart Canada [1999]
A retail workers’ union challenged the secondary picketing provisions in BC’s statutory labour code. The union, which was on strike against certain KMart stores, asserted the right to hand out leaflets to people entering and leaving KMart stores that were not involved in the dispute. Leaflets urged consumers to boycott KMart to help union eliminate “exploitation of employees”. The union did NOT put up a picket line and made NO attempt to impede public access to the stores. The labour code included a prohibition on secondary picketing and the def’n of picketing was wide enough to catch the union’s activity of “leafleting” at secondary sites. Labour Relations Board accordingly enjoined the union activity. On JR of Board’s decision, SC followed the dictum in Dolphin Delivery to hold that a prohibition of picketing was a limitation of freedom of expression & also followed the same dictum to hold that prohibition on secondary picketing was justified by the labour-relations goal of minimizing disruption to businesses NOT involved in the labour dispute. However, the Court held that prohibition was TOO broad in prohibiting the peaceful distribution of leaflets by union members who were not carrying placards or formed into a picket line. Prohibition of this form of expression NOT justified by legislative goal and was therefore unconstitutional. SC struck down prohibition on secondary picketing, BUT suspended the declaration of invalidity for six months to allow time for Legislature to enact a narrower version that no longer prohibited the peaceful distribution of leaflets at secondary sites.
Pepsi-Cola Canada Beverages v RWDSU [2002]
Union representing workers at Pepsi-Cola plant in Sask. went on legal strike against employer, Pepsi-Cola. Union not only picketed primary location (bottling plant) BUT ALSO secondary locations, including shops that sold Pepsi-Cola products and homes of Pepsi-Cola management personnel. Pepsi-Cola obtained injunction against the secondary picketing. Unlike KMart, here the union had put up picket lines at the secondary locations and, in the case of the shops, had successfully prevented Pepsi-Cola from delivering its products to the shops. Also unlike KMart, in Saskatchewan secondary picketing had NOT been regulated by statute, so that this was a case like Dolphin Delivery of a dispute btw private parties governed by the CL. SC held that, while the Charter was NOT directly applicable, the CL should be “developed” by the courts to make it consistent w/ “Charter values”. Here, the CL was unclear. One line of cases held that ALL secondary picketing was unlawful and could be enjoined. SC rejected these (pre-Charter cases as being insufficiently respectful of Charter value of freedom of expression.
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Another line of cases held that secondary picketing was lawful provided it was peaceful AND did not involve the commission of a wrongful act, namely a crime or a tort. “Wrongful act” doctrine made NO distinction btw primary and secondary picketing and therefore allowed labour disputes to spread beyond the contending parties and injure neutral TP. Nevertheless, Court accepted wrongful act doctrine, b/c it gave better protection to “labour speech”. Court addressed the problem of labour disputes spreading beyond the disputing parties by relying on the law of torts to avoid many (but not all) of the harms caused by picketing to neutral TP, eg trespass, nuisance, intimidation and inducting breach of contract. IF unforeseen harms occurred, various torts, “creatures of CL, may grow and be adapted to current needs” Court emphasized that case concerned the CL and Court implied that IF a Leg enacted labour relations regime that was MORE restrictive of secondary picketing, Court likely uphold the legislation under Ss. 1 Here, secondary picketing of shops that sold Pepsi was peaceful and did NOT involve the commission of a crime OR tort and therefore could not be enjoined despite its harm to the picketed business. However, picketing of homes of mgmt amounted to the tort of intimidation and COULD BE enjoined.
43.9 Hate propaganda
CC prohibits hate propaganda making it an offence to wilfully promote hatred against “ANY section of the public distinguished by colour, race, religion or ethnic origin.”
R v Keegstra (1990)
Hate propaganda section of the CC was challenged. SC rejected the notion that there were any content-based restrictions on the Ss. 2(b) right. Section 2(b) covered all messages, “however unpopular, distasteful or contrary to the mainstream”. SC also rejected notion that Ss. 2(b) could be narrowed by ref to equality rights of Ss. 15 (or any other). Therefore, Mr Keegstra, a schoolteacher who had been found guilty of making anti-Semitic statements to his students, had been engaged in constitutionally protected activity. For Ss. 1 inquiry, however, it WAS relevant to take account of the competing equality values, which tended to strengthen the importance of law’s objective and thus make it EASIER to uphold under Ss. 1 SC did go on to uphold the law under Ss. 1, BUT only by the slim margin of 4:3.
R v Zundel (1992)
CC used to contain the offence of spreading false news, which was committed by anyone who published a statement that he knew was false and that caused or was likely to cause injury to a public interest. Zundel was charged with this offence. Had published a pamphlet claiming the Holocaust was a fraud invented by an international conspiracy of Jews. Accused was convicted at trial, BUT a majority SC held that he was entitled to be acquitted on the ground that the false-news prohibition was unconstitutional. Unanimous deciding that accused’s activity of publishing deliberate falsehoods was protected by Ss. 2(b). Doctrine of content-neutrality protected falsehoods as well as truths, b/c q’s whether a statement is true or false can be determined ONLY be reference to the content of the statement. Court divided 4:3 on the Ss. 1 issue, the majority holding that the false-news offence could not be justified under Ss. 1. The offence was therefore struck down. The false-news law was so broad that it was difficult to identify an objective that was sufficiently important to justify the limit on freedom of expression. Indeed, objective of the law in its original 13th Century form in England was to prevent the spreading of falsehoods concerning the “great men of the realm”. The majority held that this could NOT serve as an adequate purpose today and refused to reinterpret the purpose as the pursuit of racial harmony (as minority would have) on ground that this would be a departure from the actual historical purpose.
43.10 Defamation
Before the adoption of the Charter, SC refused to extend any special privilege to the media in reporting on the actions of public officials. THEN, after the Charter of Rights was enacted….
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Hill v Church of Scientology [1995]
A Crown attorney brought an action for defamation against the Church of Scientology and its lawyer, who in a press conference had falsely claimed that the plaintiff had breached a court order. Cory J (for the Court) acknowledged that freedom of expression was now constitutionally protected, BUT (ignoring the risk of libel chill) said that false and injurious statements were outside the core values protected by Ss. 2(b) and were NOT deserving of much protection. Reputation, on the other hand, although not explicitly protected by the Charter, “reflected the innate dignity of the individual” and was “related to the right of privacy which has constitutional protection” Having weighed the competing values in this fashion, Cory J concluded that CL of defamation was NOT “unduly restrictive or inhibiting” and required no significant modification to conform to Charter values. The Charter of Rights did NOT directly apply to the proceedings (despite Hill’s public position), BUT the common law should be modified to conform to Charter values. The Court upheld the trial court’s award of damages.
Grant v Torstar Corp [2009]
A wealthy landowner in N. Ontario brought an action against the Toronto Star newspaper. The newspaper had published a story reporting on the plaintiff’s proposal to expand the golf course on his lakefront estate; environmental issues were raised and the concerns of residents that the plaintiff’s political influence would result in the necessary approvals from the provincial gov’t. Newspaper had repeatedly asked plaintiff to comment on residents’ concerns, which he had refused to do. The article was published and the P sued for defamation. The case was tried by a judge and jury. The judge directed the jury on the basis of the traditional CL. The jury rejected the defence of truth and held the newspaper liable, awarding general, aggravated and punitive damages totalling $1.475 million. This verdict punished the newspaper for publishing the article, DESPITE its high public interest in N. Ontario and DESPITE the newspaper’s efforts to obtain the P’s side of the story. On appeal, the SC, explicitly acknowledging the influence of developments in other CL countries and especially the UK, held that the CL of defamation should be modified to recognize a defence of “responsible communication on matters of public interest”. Court reversed damages award & ordered new trial where new defence available to the newspaper. McLachlin CJ (for a Court that was unanimous on all but one point) rejected the central thesis of Hill that defamatory statements were outside the core values protected by Ss. 2(b) Chilling effect on media of the no-fault CL “may have the effect of inhibiting political discourse and debate on matters of public importance, & impeding the cut and thrust of discussion NEC to discovery of truth”. She concluded that “the current law with respect to statements that are reliable and important to public debate does not give adequate weight to the constitutional value of free expression”. While the law of defamation MUST continue to protect reputation, it MUST be modified to include the new defence of responsible communication on matters of public interest. The new defence does NOT supplant the existing defence of truth, which continues to protect the publisher, BUT is an additional defence for the case where the publisher CANNOT prove the truth of a defamatory statement but can prove that it acted responsibly in publishing the statement. The defence is available to the traditional media, BUT also applies to commentary on matters of public interest by persons other than journalists. Reason called “responsible communication” rather than “responsible journalism”, as it is in the UK.
There are 2 elements to the new defence: 1. The publication MUST be on a matter of “public interest”; and 2. The publication MUST be “responsible”
“Public interest” NOT confined to gov’t and political matters and NOT NEC that plaintiff be “public figure”. However, “mere curiosity or prurient interest”, eg, in the lives of well-known people, does NOT amount to a “genuine interest” that converts what is essentially a private matter into a public one for the purpose of defamation law. For TJ to determine whether a publication is on a matter of “genuine” public interest. Publication will be “responsible” where publisher exercised DD trying to verify defamatory allegation. What amounts to DD depends on ALL the circumstances, including the seriousness of the allegation, the public importance of the matter, its urgency, the status and reliability of the source of the info and whether the P’s side of the story was sought and accurately reported.
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While NO particular factor is dispositive, the last-mentioned factor will normally be of great significance b/c to publish defamatory allegations of fact w/o giving the target opportunity to respond is unfair & increases the risk of inaccuracy. Inquiry into the DD of the publisher “obviates the need for a separate inquiry into malice”. The Court divided on the roles of judge and jury. The majority (8:1) held that the q’s whether publication is on a matter of public interest is for the judge to decide, on the basis that this is primarily a q’s of law, BUT the question whether the publisher has acted responsibly is for the jury to decide, on the basis that this is primarily a question of fact According to Abella J, the judge should decide the second issue as well as the first.
CL of defamation has always been MORE forgiving to statements of opinion about individuals in the public eye than it has historically been to statements of fact. Defence of “fair comment” is available to publisher of opinion so long as: 1. 2. 3.
Is based on fact; Is related to a matter of public interest; and Is one that an honest (but not necessarily reasonable) person could hold.
WIC Radio v Simpson [2008]
SC held that law of fair comment did NOT require any modification to bring it into line w/ Charter values: “Commentators are allowed broad latitude under the existing law of fair comment”. The D’s were Rafe Mair, a radio talk show host in Vancouver, and the radio station that carried his show. Mair had criticized the plaintiff on air and implied that she would condone violence against homosexuals. This was false and, b/c it injured the reputation of the P, it was defamatory. However, b/c the statement was one of opinion, NOT fact, no demonstration of truth was required. The P had been conducting a public campaign to promote “family values” in the schools and had often made public pronouncements against homosexuality in extreme terms. The Court held that all three elements of the defence of fair comment were present. The statement was based on fact and related to a matter of public interest. The difficult point was honest belief, because Mair had testified that he himself did NOT believe that the P would condone violence and that he did not intend the imputation that his words carried. BUT the Court held that the P’s public pronouncements “could support an honest belief on the part of at least some of her listeners that she ‘would condone violence against gay people’”. That was enough to sustain the defence of fair comment and the action for defamation was dismissed.
43.11 Pornography
Pornography, including obscenity, protected expression in Canada. (B/c no content restrictions on Ss. 2(b))
Miller v California
st
SC of US distinguished between pornography and obscenity and LATTER is NOT protected by 1 amendment… Court settled on a 3-part test to identify obscenity: 1. The material must appeal to the prurient interest; 2. It must be patently offensive in light of community standards; and 3. It must lack any serious literary, artistic, political, or scientific value.
R v Butler [1992]
The accused, who operated a sex shop, was found guilty of various charges of selling obscene material and possession of obscene material for sale. Challenge to the constitutionality of prohibitions of obscenity, which were enacted by the CCd. The Code’s definition of obscenity was as follows: “For the purposes of this Act, ANY publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene”.
SC held unanimously that prohibition offended Ss. 2(b) of the Charter. The purpose and the effect of the prohibition was “to restrict the communication of certain types of materials based on their content”.
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However, the Court held that the prohibition could be upheld under Ss. 1 Sopinka J (for the majority) held that the “undue” exploitation of sex contemplated material that: 1. Portrayed explicit sex with violence; or 2. Portrayed explicit sex w/o violence, BUT in a degrading or dehumanizing manner by “[placing] women (and sometimes men) in positions of subordination, servile submission or humiliation” These forms of pornography, when not required by the internal necessities of a serious work of art, were intolerable to the Canadian community, “not because *they offended+ against morals BUT because [they were] perceived by public opinion to be harmful to society, particularly to women”. Sopinka J acknowledged that the perception of harm was “not susceptible of exact proof”, BUT he referred to “a substantial body of opinion that holds that the portrayal of persons being subjected to degrading or dehumanizing sexual treatment results in harm, particularly to women and therefore to society as a whole” and he said that “it would be reasonable to conclude that there is an appreciable risk of harm to society in the portrayal of such material” These findings provided the basis to allow the Court to uphold the obscenity law under Ss. 1
Ss 1 req that a limit on a right be “prescribed by law”, which means that a law MUST not be excessively vague; this has been a fatal flaw in some attempts to control pornography, Luscher v Revenue Canada (1985) – prohibition of importation of “immoral” or “indecent” books was TOO vague for Ss. 1
Sopinka J pointed out that the test of vagueness had to be applied to the language of a statute as it had been interpreted and the gloss of harmfulness placed by judicial decisions on the language of the Code gave it enough precision to count as an “intelligible standard”. This enabled Sopinka J to hold that the objective of the Code was NOT merely moral disapprobation BUT “the avoidance of harm to society”. This was a sufficiently important objective to justify a limit on freedom of expression. It was similar to the prevention of the influence of hate propaganda, which had been accepted as a legitimate reason for the limitation of freedom of expression in the Keegstra case. The prohibition also satisfied the proportionality tests stipulated by Oakes in that it did not extend beyond material that created a risk of harm to society and in particular did not prohibit sexually explicit material that was neither accompanied by violence nor degrading or dehumanizing. It did NOT prohibit material that was required by the internal necessities of serious artistic work and it did NOT touch the private possession or viewing of obscene materials. Thus prohibition was no wider than NEC to accomplish legislative purpose of preventing harm to society. For these reasons, Sopinka J concluded that the prohibition of obscenity was justified under Ss. 1. The CC’s definition of obscenity is also used as the standard for border control of pornography.
Little Sisters Book and Art Emporium v Canada (2000)
The federal Customs Tariff Act prohibits the importation into Canada of books, magazines and pictures that are obscene under the CC definition. The Little Sisters bookstore challenged the validity of the prohibition on a number of grounds, including a frontal assault on the Butler test itself. Little Sisters operated a gay and lesbian bookstore in Vancouver. The Co. had great difficulty in importing gay and lesbian erotica into Canada because of frequent seizures by customs officials. The Co. argued that the Butler test was inherently discriminatory against gay and lesbian tastes, b/c harm-based approach used a single community standard that was inevitably insensitive to the nature and significance of erotica directed to the minority homosexual communities. The SC held that it was appropriate to use a single community standard of obscenity, pointing out that the Little Sisters bookstore was open to the public. Moreover, although it was true that the customs legislation had been administered in a way that was discriminatory, the Butler-interpreted def’n of obscenity in the legislation targeted harm in the form of violence, degradation and dehumanization that could occur in the context of homosexual rel’s. The definition was indifferent to whether the harm occurred in the context of heterosexuality or homosexuality. The SC unanimously denied the claim that the Butler test was unconstitutional in its application to homosexual erotica. Majority identified the administrative failures that had permitted the discriminatory behaviour to occur and laid down guidelines for the future use of the officials who would be administering the prohibition.
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The majority upheld the legislation.
R v Sharpe (2001)
Accused challenged constitutionality of the CCd offence of possession of “child pornography”. Child pornography defined as pic of child engaged in explicit sexual activity, picture of child’s sexual organ or anal region & written material that advocated sexual activity with a child that would be a CCd offence. SC held that offence was a limit on freedom of expression under Ss. 2(b) Ss. 1 inquiry turned entirely on whether mere possession of child pornography was harmful to children. Court held that possession contributed to market for child pornography & market caused the production of child pornography which often involved the exploitation of children & possession “may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences”. While these effects were NOT susceptible of scientific proof, the Court followed Butler to hold that there was a “reasoned apprehension of harm” and that was enough. Once harm to children was inferred, the various elements of the Oakes test fell into place and the prohibition of possession of child pornography was upheld under Ss. 1 McLachlin CJ for maj. read in 2 exceptions (where possession would create no risk of harm to children): 1. Private material created by the accused (eg a diary or drawings); and 2. Private recordings of lawful sexual activity by the accused (either by him/herself or with another consenting person).
OPPOSITE conclusion reached by US SC in Ashcroft v Free Speech Coalition (2002)
Act banned child porno that used artificial images of children OR adults who looked like children and these did NOT involve real children
43.12 Access to public property
Committee for Commonwealth of Can v Can [1991] 1. Section 2(b) confers NO right to use private property as a forum of expression
Re public property, since the Charter applies to gov’t action, Ss. 2(b) is potentially applicable.
Committee for Cth of Can v Can (1991)
Could Crown-owned Dorval Airport Montreal manager prohibit distribution of political leaflets in Airport? SC held unanimously that the prohibition was unconstitutional. SC was unanimous that Ss. 2(b) conferred a right to use public property for expression purposes; gov’t did NOT possess absolute power of a private owner to control access to and use of public property. However, Court split into 3 camps in its attempt to define the scope of the right of expression: 1. L’Heureux-Dubé J (MOST expansive – right to use ALL gov’t property under Ss. 2(b), subject to limits under Ss. 1) 2. McLachlin J (Hogg argues almost indistinguishable from L’Heureux – can have access if for one of the 3 purposes of the guarantee of freedom of expression, subject to Ss. 1) 3. Lamer CJ (better view) – proprietary control over gov’t property ought not to disappear entirely even in the face of an assertion of expression rights. Lamer CJ would allow proprietary controls over access OR use to the extent necessary to carry out the principal function of the governmental place. Thus, a rule of silence in the parliamentary library would not violate Ss. 2(b) and would not need to be justified under Ss. 1, b/c silence is essential to the function of the library. ONLY IF expression would be compatible with the function of the place, would a limitation on expression offend Ss. 2(b) and require justification under Ss. 1 However, not w/o difficulty (McLachlin J pointed out) –involves identifying & defining function of any gov’t place in which expression rights have been asserted; it involves determining what degree of expressive activity would be compatible with the function; and, because these inquiries take place within Ss. 2(b) RATHER THAN Ss. 1, the onus of proof rests on the person asserting freedom of expression. B/c distribution of political leaflets was compatible with the airport’s function of serving the travelling public, Lamer CJ concluded that the plaintiffs had a constitutional right to carry out the practice.
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L’Heureux-Dubé and McLachlin JJ, relying on their wider views of the constitutional right of access, reached the same conclusion, so that the Court was unanimous in its result.
Ramsden v Peterborough [1993]
SC struck down municipal by-law prohibiting placing of posters “on any public property” w/n municipality. D was a musician who advertised performances of band w/ posters on hydro poles on public property. Charged w/ breach of by-law. Defended charge on basis that the by-law was unconstitutional. Iacobucci J (for the Court) held that there was NO doubt that ‘postering’ was a form of expression. BUT, was postering on public property protected by Ss. 2(b)? Iacobucci J noted 3 different approaches in Commonwealth, BUT made no attempt to resolve the conflict. Instead, he held that, under each of the three approaches, postering on at least some kinds of public property, including utility poles, would be protected by Ss. 2(b). As to Ss. 1, he recognized that the municipality’s objectives in enacting the by-law, which were to reduce littering, aesthetic blight, traffic hazards and hazards to persons engaged in the repair of utility poles, were sufficiently important to justify SOME limitation of freedom of expression. However, a complete ban on postering on ALL public property was broader than nec to accomplish obj’s By-law failed the least-drastic-means requirement of Ss. 1 justification and was unconstitutional.
Toronto v Quickfall (1994) (CoA)
A by-law prohibiting postering on utility poles and buildings and a by-law prohibiting postering on roads were both struck down as too broad
Urban Outdoor Trans Ad v Scarborough (2001)
A by-law placing a cap on the annual increase in number of billboards in the municipality and on the ultimate total was upheld under Ss. 1 on aesthetic grounds
*** Montreal v 2952-1366 Quebec [2005] COMPARED TO Ramsden v Peterborough
Strip club in Montreal set up a loudspeaker at its street entrance which it used to broadcast the music and commentary that accompanied the show within. Club was charged under a city by-law that prohibited noise produced by sound equipment that could be heard outside a building. The by-law did NOT contain language stipulating any particular level of noise or any disturbance of neighbours or passers-by, BUT McLachlin CJ and Deschamps J, for the maj (6:1), interpreted the by-law as applying ONLY to “noise that adversely affects the enjoyment of the environment” Held that the by-law was authorized by the city’s statutory power to define and prohibit nuisances. That answered the administrative-law question (which was really an exercise in statutory interpretation) and led to the constitutional question: was the by-law contrary to Ss. 2(b)? The broadcast conveyed a message about the show that was going on in the club. That was expression. Although the message originated in private premises where Ss. 2(b) would NOT apply, it was the transmission into the public street (public property) that was prohibited by the by-law. Did Ss. 2(b) protect expression that was transmitted into a public street? The majority now created a single test from the 3 approaches in the Commonwealth case by combining elements of both the Lamer and McLachlin opinion. The reformulated test for the application of Ss. 2(b) on public property was: Whether place is public place where one expects constitutional protection for free expression on basis that expression in that place does NOT conflict w/ purposes which Ss. 2(b) is intended to serve, namely: (1) Democratic discourse; (2) Truth finding; and (3) Self-fulfillment. To answer this question, the following factors should be considered: (a) the historical OR actual function of the place; and
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(b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression.
Here, the streets “are clearly areas of public, as opposed to private, concourse, where expression of many varieties has long been accepted”. Majority held that by-law was justified as a reasonable limit under Ss. 1, despite its lack of standards w/ respect to the level or effects of the prohibited noise. Binnie J dissented on administrative law issue (whether by-law was authorized by city’s statutory power to define & prohibit nuisances). He described the majority’s statutory interpretation as “radical surgery”. This also led him to dissent on the constitutional issue, since the prohibition of “any audible signal from ‘sound equipment’” was too broad to be justified under Ss. 1
Greater Vancouver transportation Authority v Canadian Federation of Students [2009]
Advertising policies of two public transit bodies permitted posting of advertising messages on the sides of buses, BUT included a prohibition of political messages. SC applied Montreal test to determine whether expression on sides of buses was protected by Ss. 2(b) While the sides of buses had NOT historically been used for expressive purposes, they were so used now (although not for political advocacy) and the expressive activity was NOT incompatible with the primary function of the bus as a vehicle for public transportation. The side of a bus was a public place like a city street “where individuals can openly interact with each other and their surroundings” and expression there could enhance the purposes of Ss. 2(b) “by furthering democratic discourse, and perhaps even truth finding and self-fulfillment”. SC concluded that the prohibition of political messages was a breach of Ss. 2(b) The Court went on to hold that it was NOT justified under Ss. 1 Hogg argues the SC should have found some room in the Montreal test for deference to the judgment of the transit bodies, whose goal was a “safe, welcoming public transit system” and who had concluded that some of the riders would be disturbed by the harsher kind of political messages. Messages were in fact mild (urging students to vote & condemning cuts to education funding), BUT no doubt messages on strongly-felt issues like abortion or the Middle East might be used. Court’s answer to that risk was: “Citizens, including bus riders, are expected to put with some controversy in a free and democratic society.”
43.13 Access to courts (a) Fair trial concerns
Section 2(b) includes “freedom of the press and other media of communication” Freedom of press may comes into conflict with the right of persons accused of crime to receive a fair trial. Eg, pre-trail publicity may bias potential jurors or judges and may damage the reputation of someone subsequently exonerated of the charge.
(b) Restrictions on reporting
Freedom of the press includes the freedom to publish reports of proceedings in court.
Edmonton Journal v Alberta [1989]
SC struck down Alberta statute prohibiting, w/ limited exceptions, press reports of matrimonial litigation. SC was unanimous that statute violated Ss. 2(b): “the courts MUST be open to public scrutiny and to public criticism of their operation by the public”. Regarding Ss. 1, the SC agreed that the protection of the privacy of individuals engaged in matrimonial litigation WOULD justify some limits on the right to report judicial proceedings. However, majority held that ban was wider than nec. to safeguard privacy & not upheld under Ss. 1
Canadian Newspapers Co v Canada [1988]
CCd provision for court order prohibiting media disclosing identity of complainant in sexual assault case The making of the order was mandatory IF it was requested by the complainant OR the prosecutor; in other cases, the making of the order was discretionary.
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SC held that the CCd section was valid. Although it limited the freedom of the press as guaranteed by Ss. 2(b), the limit was justified under Ss. 1 Purpose of fostering complaints by victims of sexual assault justified some limit on Ss. 2(b) Mandatory nature of the ban did NOT limit the right excessively, b/c ONLY a mandatory ban would provide assurance to the complainant that her identity would NO be disclosed. Merely discretionary ban would NOT eliminate fear of publication, was purpose of Ss to eliminate.
Dagenais v CBC [1994]
Superior court issued injunction prohibiting CBC from broadcasting programme “The Boys of St Vincent”. Publication ban did NOT apply to reports of judicial proceedings, b/c the programme was fictional. Programme portrayed abuse of children in Catholic institution and the subsequent trials of the priests who were responsible for the abuse. Injunction was sought by four Catholic priests who had been charged with the abuse of children under their care in circumstances resembling those depicted in the programme. The injunction had been granted under a common-law power to prevent “a real and substantial risk of interference with the fairness of the trial” and was limited to the period of the four trials. End of fourth trial, injunction would be at an end and the CBC would be free to air the programme. Majority SC struck down the injunction. Lamer CJ (for the majority) held that the common law rule gave TOO much weight to the right to a fair trial and not enough weight to freedom of expression. B/c injunction limits freedom of expression, injunction had to be justified by Ss. 1 on Oakes test. This required, inter alia, a judicial finding that “reasonably available alternative measures” would not prevent the risk to the fairness of the trial. Here, he held that alternative measures were available, namely “adjourning trials, changing venues, sequestering jurors, allowing challenges for cause and voir dires during jury selection and providing strong judicial direction to the jury”. As a result, the injunction could NOT be justified under Ss. 1 Gonthier J, dissenting, accepted TJ’s finding, based on evidence, that there was a risk of influencing potential jurors & was reluctant to require a prolonged jury-selection process as an alternative remedy. Pointed out that ONLY effect of the ban was to delay the presentation of the programme during the trials, which was expected to be about 8 months. After that time, it would be just as timely and interesting to its audience. Not being a news programme, its value was not premised on immediate publication. Further, the ban did not affect access to the courts or the publication of the proceedings. As a result, the impact of the ban on freedom of the press was minor and was justified by the objective of securing a fair trial for the four accused.
R v Mentuck [2001]
Evidence against the accused, charged w/ murder, had been gathered by an elaborate operation of deception carried out by undercover police officers (who claimed to be members of a fictitious criminal organization that would help the accused to establish his innocence). B/c there were other similar undercover operations under way, Crown applied to TJ for order prohibiting publication of evidence that would disclose identity of undercover officers & operational methods. Here, the accused opposed the order, invoking his Charter right to a “public” hearing under Ss. 11(d) of the Charter, as well as Ss. 2(b) of the Charter. TJ granted order w/ respect to identities of officers & denied order w/ respect to operational methods. The SC held that the TJ was correct. The Crown had to establish “a serious risk to the proper administration of justice” and that “reasonable alternative measures will not prevent the risk”. SC held that this test was satisfied as to identities of the undercover police officers, b/c disclosure of their identities would create a serious risk to police operations in which those same officers were engage. BUT the disclosure of the police methods would NOT, according to the SC, pose a serious threat to the efficacy of police operations. The publication ban was accordingly upheld as a justified limit on freedom of the press ONLY with respect to the identities of the police officers.
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Named Person v Vancouver Sun [2007] 3 SCR 253 at [34]-[37] per Bastarache J for 8-J majority)
In the case of a police informer (as opposed to a police officer), the “informer privilege” is a hard-and-fast rule against ANY disclosure that might reveal the identity of the informer. The Dagenais/Mentuck test is not applicable b/c informer privilege always prevails over the open court principle
Toronto Star Newspapers v Ontario [2005]
SC affirmed rule that court proceedings were to be “open” unless “disclosure would subvert the ends of justice or unduly impair its proper administration” Did the rule apply to the reporting of pre-trial phases of court proceedings? Police had obtained warrants to search meatpacking plants that they suspected of violating health laws. After searches took place & media aware of investigation, Crown applied to provincial court for order sealing the search warrants and the supporting info on which they had been based. Reason for sealing was to protect identity of “whistle-blower” who was the police’s confidential source. The provincial court sealed the warrants and the Toronto Star brought proceedings to quash the sealing order, invoking Ss. 2(b) of the Charter. The SC said: “Once a search warrant is executed, the warrant and the information upon which it is issued MUST be made available to the public UNLESS an applicant seeking a sealing order can demonstrate that public access would subvert the ends of justice”.
SC held that this test was NOT met and quashed the sealing order, subject only to the editing of the material to conceal the identity of the confidential informant.
Bail hearings
Important pre-trial phase of criminal proceedings when it is determined by a judge whether there is “just cause” to deny bail to the accused and, if not, what conditions should be imposed on his release on bail. Two questions are usually critical: 1. Is continued detention of the accused necessary to be sure that he will show up for his trial; and 2. Is the accused likely to commit crimes IF released on bail? Evidence at the bail hearing is focused on the character of the accused and may include evidence that would be prejudicial and inadmissible at his trial, such as previous convictions and post-offence conduct. Thus CC provides for publication ban of evidence, arguments and the judge’s reasons in a bail hearing. IF the prosecutor seeks a publication ban, the judge has a discretion to grant it. IF the accused seeks a publication ban, the ban MUST be granted automatically.
Toronto Star Newspaper v Canada [2010]
Toronto Star challenged constitutionality of the accused’s entitlement to an automatic publication ban. SC rejected the challenge, upholding the CCd provision by a majority of 8:1. Deschamps J (for the maj) acknowledged that publication ban limits freedom of expression. Discretionary bans are constitutional b/c test developed in Dagenais/Mentuck incorporates the essence of the Oakes test. BUT where, as here, the legislation requires the judge to order a publication ban (IF requested by the accused) its constitutionality was to be determined by subjecting the legislation to the Oakes test. In this case, the objectives of the bail-hearing publication ban were twofold: 1. To safeguard the right to fair trial by preventing any prejudicial evidence about the accused from going beyond the bail courtroom; and 2. To ensure expeditious bail hearings by precluding arguments for and against a ban, which would in high-profile cases likely entail media interventions and delays. These were two pressing and important objectives. The resulting ban was NOT an absolute one in that the press was free to report on the identity of the accused, the charge against him and the outcome of the bail hearing. And the ban was NOT permanent, ending automatically with the end of the subsequent trial. For these reasons, the ban did NOT limit freedom of expression any more than was necessary to achieve its objectives. The ban was therefore held to be justified under Ss. 1
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(c) Restrictions on access Edmonton Journal v Alta (1989)
Freedom of the press also includes the right of the press and the public to be present in court:
Re Southam and the Queen (No 1) (1983) 41 OR (2d) 113 (CA)
Ontario CA considered the validity of Ss. 12(1) of the Juvenile Delinquents Act, which provided that “the trials of children shall take place without publicity”. The phrase “without publicity” had been held to req a trial closed to the press and the general public. Newspaper challenged validity, claiming freedom of expression entailed a right of access to the courts. The Court upheld the newspaper’s claim and struck down the closed-court provision. The Court acknowledged that in some cases the interests of the child would justify restrictions on press access to the trial, BUT the Court held that an absolute ban could NOT be justified under Ss. 1, because it did NOT pursue the “least restrictive means” of attaining its objective. The Court refused to reconstruct the Act by reading a judicial discretion into it.
The Juvenile Delinquents Act was repealed by the Young Offenders Act, which replaced the absolute requirement of a closed hearing for trials of young offenders w/ requirement that hearings be open to the press and public SUBJECT TO a discretion by the judge to order that a hearing be closed. (A similar provision is the current law: youth Criminal Justice Act, SC 2002, c 1, s 132) In Re Southam and the Queen (No 2) (1986) 53 OR (2d) 663 (CA), the discretionary provision was upheld under Ss. 1 CBC v New Brunswick [1996]
There is a provision of the CCd that provides that proceedings against an accused are to be held “in open court”, BUT provision goes on to confer on the TJ the power “to exclude all or any members of the public from the court room for all or part of the proceedings”. Power exercisable IF judge opines access should be restricted in interest of “proper admin of justice”. Here, the TJ excluded the public and the media from part of the sentencing hearing of a prominent citizen who had pleaded guilty to various sexual offences involving young girls. Exclusion order covered the part of the hearing detailing the acts committed by the accused and it remained in force for about 20 minutes. Order consented to by Crown & accused, BUT CBC, whose reporter had been denied access by the order brought proceeding for declaration that statutory provision authorizing exclusion was unconstitutional. SC unanimously upheld the provision. La Forest J (for the Court) held that freedom of the press included the right of the media to have access to court proceedings. Any power to exclude media from court was breach of Ss. 2(b) of the Charter. However, the SC held that the provision was justified under Ss. 1 Parl’t was pursuing an important objective in providing a power to make an exclusion order when openness would be inimical to the proper administration of justice and, because the power was discretionary, the provision was NO broader than necessary. This reasoning disposed of the constitutional challenge, BUT the Court added some comments on the exclusion order that had been made in this case. The kind of evidence that establishes sexual assault charges, even when the victims are very young, should NOT normally be regarded as a sufficient reason to deny access to the courtroom. Any hardship that prejudicial publicity would impose on the accused should be given little weight at the sentencing stage, when the accused has been found guilty. In considering an exclusion order, the judge had to give appropriate weight to the value of subjecting sentencing proceedings to public scrutiny and only exceptional circumstances of hardship to the accused or complainants would override this value.
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Southam v Coulter (1990) 75 OR (2d) 1 (CoA)
CCd provides for a “pre-inquiry” by a justice of the peace into whether to commence criminal proceedings against a person against whom an information has been laid. Person accused is NOT entitled to be present at a pre-inquiry and any hearing is also closed to the public. Here, a private citizen had sworn an information against several cabinet ministers and senior police officers alleging bribery and corruption. B/c of prominence of accuseds, the press were anxious to attend the pre- inquiry into the charges. Ontario CA held that constitutional right of public access to court included pre-trial proceedings & trials. However, Court held that protection of falsely accused person & risk to properly accused person that subsequent trial would be prejudiced by pre-trial publicity values that justified closure of the pre-inquiry. The Court upheld the closure under Ss. 1
Re Vancouver Sun [2004]
SC reviewed “judicial investigative hearing” that had been held in camera (closed to the public) by a superior court judge. Type of hearing an innovation authorized by the Anti-Terrorism Act, a federal statute enacted after 9/11. Act authorized a peace officer, with the approval of the AG, to apply to a judge for an order for “the gathering of information” in relation to a “terrorism offence” (a defined term). IF order was granted, the court would then order a judicial investigative hearing, which would consist of the attendance before a judge of a named person for examination under oath by counsel for the AG. Act silent on q’s whether a judicial investigative hearing was to be held, in whole or in part, in camera. In this case, a judicial investigative hearing was held by a judge in relation to acts of terrorism that had caused explosions in an airport in Japan and on an Air India flight (which crashed with total loss of life). The presiding judge closed the hearing to the public and press. Vancouver Sun, learning by accident of the proceedings, applied to be given access and when that application was refused, appealed to the SC. SC emphasized that “open court principle” was guaranteed by Ss. 2(b) of the Charter. Could be limited under Ss. 1 ONLY IF stds of justification established in Dagenais/Mentuck were satisfied. Although those cases concerned publication bans, the same principles applied to orders limiting access to court proceedings. Those principles were: 1. That the order is “necessary in order to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk”; and 2. That “the salutary effects of [the order] outweigh the deleterious effects on the rights and interests of the parties and the public” SC acknowledged that an application for a judicial investigative hearing would have to be held in camera, for the same reason as an application for a search warrant or a wiretap authorization. BUT majority held that the hearing itself should have been held in open court, although the hearing judge would maintain a discretion (to be exercised in accordance with the Dagenais/Mentuck principles) to exclude the public from parts of the hearing and/or ban publication of parts of the evidence. Bastarache J, dissenting, held that open court principle should NOT apply to judicial investigative hearing.
43.14 Access to legislative assembly New Brunswick Broadcasting Co v Nova Scotia [1993]
Majority SC upheld a ban on TV cameras in legislative chamber that had been imposed by the NS House of Assembly. Reasoning was that parl’t privilege included the power of a legislative assembly to exclude “strangers” from the legislative chamber AND that power was NOT subject to the Charter of Rights.
43.15 Contempt of court
Contempt of court is act that offends against administration of justice, eg a failure to obey a court order. “Civil contempt” is one where the failure to obey a court order may have no significance beyond the parties to the order. IF the court order resolved a dispute btw two private parties and if it was based on the common law, the Charter of Rights will NOT apply to the court order (RWDSU v Dolphin Delivery (1986)) or to any proceedings btw the private parties to enforce the order by civil contempt proceedings.
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“Criminal contempt” is one where the offence to the administration of justice has a public significance that goes BEYOND the immediate parties. Criminal contempt is a criminal offence at common law that has been preserved in Canada by Ss. 8 of the CCd. There are 2 kinds of criminal contempt: 1. A “direct contempt” is a contempt in the face of the court – this is committed by words or acts INSIDE the courtroom that are intended to disrupt the proceedings, eg, where a person insults the judge, interrupts the proceedings, refuses to be sworn as a witness or refuses to testify; 2. An “indirect contempt” is a contempt not in the face of the court – this is committed by words or acts OUTSIDE the courtroom that are intended to obstruct the administration of justice, eg, an article in a newspaper that would prejudice the fairness of an ongoing of pending trial. Although criminal contempt is a matter of common law and the Charter does NOT generally apply to the CL, the public character of criminal contempt makes the Charter applicable.
Vancouver Courthouse case (1988)
C.J. issued injunction prohibiting union from picketing court where some striking employees worked. Basis for injunction was the offence of criminal contempt, which was allegedly being committed by the picketers by restricting access to the courts. SC held that the Charter applied to an injunction for criminal contempt and that the injunction was a limit on freedom of expression. However, the Court went on to decide that the assurance of unimpeded access to the courts was a sufficiently important objective to justify a limit on freedom of expression and the injunction in this case was justified as a reasonable limit under Ss. 1
R v Kopyto (1987) 62 OR (2d) 449 (CoA)
Lawyer, after his client had lost a civil suit against police, made a statement to press in which he claimed: “Courts and RCMP are sticking so close together you’d think they were put together with Krazy Glue”. Mr. Kopyto was charged w/, and convicted of, “scandalizing the court”, which was a branch of criminal contempt that had been recognized by the CL since 1900, although it had been rarely invoked. Ontario CoA allowed Kopyto’s appeal, holding by a majority that the offence of scandalizing the court had not survived Canada’s adoption of the Charter. Critical feature of Kopyto’s statement was that it was made AFTER the end of a judicial proceeding, so that it could NOT prejudice an ongoing or pending trial. ONLY effect of statement was its general tendency to lower the reputation & authority of the court. Held criticism of courts, however unrestrained, made after a decision had been rendered, was constitutionally protected expression &law attempting to restrict could NOT be justified under Ss. 1
43.16 Public service OPSEU v Ontario (1986) [1987]
Public servants in Ontario challenged provisions in Ontario’s Public Service Act that prohibited public servants from engaging in a variety of political activities, including running for the federal Parl’t w/o taking a leave of absence, fundraising on behalf of federal political parties and expressing opinions in public on federal political issues Pre-Charter – so the plaintiffs took aim at the restrictions on political activity ONLY insofar as they precluded federal political activity. Ps argued that restrictions were outside the powers of a provincial Leg. The argument was unsuccessful. SC held unanimously that province had power to regulate its own public service and in pursuit of political neutrality, the regulation could extend to restrictions on federal as well as provincial political activity.
Osborne v Canada [1991]
Charter challenge in which federal public servants attacked provisions in the federal Public Service Employment Act that prohibited them from “engaging in work” for or against a candidate for election to Parl’t or for or against a political party. SC held that Act DID limit freedom of expression under Ss. 2(b) and that it was NOT justified under Ss. 1
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The objective of maintaining a neutral public service would justify limits on expression, BUT these limits did not pursue that objective by the least drastic means. Act was over-inclusive both to range of activity prohibited & range of public servants who were covered. Narrower prohibition would have been sufficient to protect the value of neutrality with less impact on freedom of expression.
43.17 Mandatory letters of reference
A labour board or adjudicators order to an employer to give a letter of reference to an employee who has been unjustly dismissed is a breach of the employer’s Charter right to freedom of expression.
National Bank of Can v RCIU [1984]
Where order requires employer to provide opinion about the employee that the employer does NOT truly hold, then the breach of the Charter right cannot be justified under Ss. 1 (Charter not relied upon directly)
Slaight Communications v Davidson [1989]
However, where the stipulated letter of reference contains “ONLY objective facts that are not in dispute”, then the order can be justified under Ss. 1
43.18 Election expenditures National Citizens’ Coalition v AG Canada (1984) 11 DLR (4th) 481 (Alta QB)
Federal Canada Elections Act imposes spending limits on parties and candidates during an election. As well, by an amendment enacted in 1983, the Act absolutely prohibited anyone who was NOT a candidate for election and who was NOT acting on behalf of a registered party or a candidate for election from incurring “election expenses” during period from date of issue of writ for the election to polling day. Election expenses were defined as money paid “for the purpose of promoting or opposing … a particular registered party OR the election of a particular candidate”. Here, a court challenge was mounted AGAINST the prohibition on TP election expenditures that had been enacted by the 1983 amendment. Alta Court of QB held that the prohibition was a breach of the guarantee of freedom of expression and that it could not be justified under Ss. 1 The prohibition was therefore struck down. Because of the imminence of the federal election, the federal gov’t did NOT appeal the decision.
Somerville v Canada (1996) 136 DLR (4th) 205 (Alta CA)
Parl’t amended Canada Elections Act, replacing prohibition on TP expenditures w/ a monetary ceiling. Under the 1993 amendment, TP expenditures to promote a candidate or party during an election campaign were permitted, BUT only up to a limit of $1,000. This provision was struck down by the Alta CA as a breach of the guarantee of freedom of expression. Regarding Ss. 1, Conrad JA (for the maj) held that there was NO evidence of the danger of the wellfinanced POV monopolizing the media & that true objective of the law was to exclude ordinary citizens from the electoral process in favour of the “privileged voice” of political parties and official candidates. Objective was so contrary to freedom of expression that it could NOT form the basis for Ss. 1 justification. (The SC indicated disagreement with this characterization of the objective in Libman v Quebec [1997]
Harper v Canada [2004]
In 2000, Parl’t again amended the Canada Elections Act, this time raising the ceiling on TP election expenditures from the $1,000 that had been struck down in Somerville to a total of $150,000, of which no more than $3,000 could be incurred in a single electoral district. These restrictions applied during an election campaign. National limit of $150,000 was less than 1/2 the cost of a once full-page ad in major Cdn newspapers. The district limit of $3,000 was less than half the cost of a single bulk mailing in one electoral district. These restrictions were no doubt limits on freedom of expression. Were they saved by Ss. 1? Majority SC (6:3) said yes. Although there was NO evidence that in election campaigns the voices of the wealthy
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drowned out those of others, the Court accepted that the prevention of that evil was the objective of the restrictions and that the objective was sufficiently important to justify limiting freedom of expression. The Court divided on the least drastic means branch of the Oakes test, ie, did the statutory restrictions impair the right of free expression as little as reasonably possible? The majority held that the restrictions did NOT go too far. They allowed TP to use modest means of advertising “to inform the electorate of their message in a manner that will not overwhelm candidates, political parties or other third parties” For the dissenters, the TP restrictions were TOO stringent to pass constitutional muster, b/c they deprived those who did not speak through political parties of any political voice during an election campaign.
Libman v Quebec [1997]
SC reviewed the validity of restrictions on TP expenditures in the context of a referendum. Quebec’s Referendum Act provided that, when a referendum was held in the province, each side of the campaign had to organize into Yes or No committees. Expenses that each committee could incur were strictly controlled w/ view to ensuring that equal resources were deployed on both sides. However, NO expenses could be incurred by persons outside the umbrella of one of the two committees. SC held that the prohibition on TP expenditures was a breach of freedom of expression and could NOT be justified under Ss. 1 Court accepted the importance of the purpose of restricting the expenditures of the committees, which was to equalize access to the media by both sides of a referendum campaign. That purpose entailed restrictions on TP expenditures as well, because if they were left unregulated the controls on the committees would be able to be by-passed. BUT Court reasoned that respect for freedom of expression should allow SOME room for participation by those who could not fit themselves under one of the committee umbrellas, eg, abstention. This law failed the least drastic means branch of the Oakes test, because the total prohibition on TP expenditures was a more drastic infringement of freedom of expression than was necessary to accomplish the legislative objective. The SC said that a financial ceiling on TP expenditures of something like $1,000 (the TP ceiling in the Canada Elections Act at that time) would be a “far less intrusive” limit than a total prohibition.
Hogan v Newfoundland (2000) 183 DLR (4th) 225 (Nfld CoA)
Gov’t of Newfoundland held referendum to seek popular approval for an amendment of the constitution that would take away from denominational schools their constitutional right to public funding. The “Yes” side received 72% of the vote and the proposed amendment was duly enacted by the joint action of the Legislative Assembly of Nfld and the two Houses of the Parl’t of Canada, using the amending procedure of Ss. 43 of the CA, 1982. Group of Roman Catholic school supporters who had opposed the amendment sought compensation from the Gov’t for the disparity in expenditures incurred during the referendum campaign. Gov’t had actively campaigned for Yes side & spent more on the campaign than the No side. Argued that Gov’t was under a constitutional responsibility to equalize expenditures on both sides, either by imposing limits on both sides or by providing public funding for the No side. TJ accepted the argument and ordered the Gov’t to pay damages to the Ps, BUT the Nfld CoA reversed. While the imposition of spending limits on political campaigns was a limit on freedom of expression that could be justified by fairness, the right to freedom of expression did NOT demand spending limits. Fact that the Gov’t sponsored Yes side spent more than the No side was not a breach of the freedom of expression of the No side Since there was NO breach of freedom of expression (or freedom of religion), there was no basis for an award of damages.
43.19 Voting Haig v Canada [1993]
The P, a Canadian citizen who had slipped through the cracks of the residency requirements, found himself unable to vote in the federal referendum that was held to approve the set of constitutional amendments known as the Charlottetown Accord.
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The problem was created by the fact that two referenda were held, a federal one in nine provinces and a provincial one in Quebec. The P had moved from Ontario to Quebec in August of 1992. When the referendum was held in October, he was not qualified to vote in the federal referendum, because in October he was not resident in Ontario or any of the other eight provinces where the federal referendum was held (the federal law’s requirement). He was not qualified to vote in the Quebec referendum, because he had not been resident in Quebec for six months (the Quebec law’s requirement). He was unable to rely on Ss. 3 of the Charter, because the right to vote guaranteed is limited to elections of the members of the federal HoC and of the provincial legislative assemblies. So, he argued that the failure of the federal Parl’t to make provision for him to vote was a breach of freedom of expression, guaranteed by Ss. 2(b) SC agreed that the casting of a ballot in a referendum was a means of expression. However, the majority of the Court held that Ss. 2(b) did NOT impose on the federal (or a provincial) gov’t any positive duty to consult its citizens by referendum and, if a gov’t did choose to hold a referendum, there was no duty to consult everyone. The P could complain of his exclusion ONLY if it amounted to a breach of his Ss. 15 equality right, BUT the majority held that the exclusion of citizens who did not satisfy the residency requirement was NOT discrimination that was prohibited by Ss. 15 The conclusion was that the P had no constitutional right to vote in the referendum.
43.20 Access to government Native Women’s Assn of Canada v Canada [1994]
The NWAC argued that the Gov’t of Canada had denied its right to freedom of expression (Ss. 15 & Ss.28 were invoked as well) by providing funding to other aboriginal organizations but NOT to NWAC and by inviting other aboriginal organizations, but not NWAC, to participate in the constitutional discussions that eventually led to the constitutional proposals known as the Charlottetown Accord. NWAC, which promoted the rights of aboriginal women, argued that the other aboriginal organizations were dominated by men and the exclusion of NWAC would deny a voice to aboriginal women. As in the earlier Haig case, this raised the question whether Ss. 2(b) imposed positive duties on gov’ts, in this case, a DUTY to fund and consult with particular groups. Sopinka J for the maj held that Haig “establishes the principle that generally the government is under no obligation to fund OR provide a specific platform of expression to an individual or a group” The gov’t could not provide access or funding in a fashion that amounted to discrimination under Ss. 15 (at 664, discriminatory treatment should be examined under Ss. 15, not Ss. 2(b)), BUT Ss. 15 should not be interpreted as constraining the gov’t in its choice of advisers, or req the gov’t to listen to every POV. Court held that evidence did NOT support NWAC’s contentions that funded groups were NOT representative of aboriginal women and were adopting positions against interests of aboriginal women.
Baier v Alberta [2007]
The question arose whether Alberta could enact a law that disqualified teachers and other employees of school boards from serving as trustees of school boards. Applicants were teachers who had been elected as T’s and who would be disqualified by the new law. Argued that the law was an infringement of their freedom of expression. SC rejected the argument and upheld the law. The law did NOT prevent the teachers from expressing opinions on any issues relating to education (or anything else); its purpose and effect was to disqualify them from participation in the management of the schools because of their conflict of interest in labour relations matters. 1. [LeBel J (concurring) said that freedom of expression was NOT engaged at all] BUT Rothstein J, for the majority, was prepared to accept that “expressive activity” was in issue, BUT all that was restricted was access to a “statutory platform” for expression and he held that Ss. 2(b) did NOT provide a right of access to any particular statutory platform.
43.21 Access to government documents Ontario v Criminal Lawyers’ Association [2010]
An association of criminal defence lawyers made a request under the Ontario Freedom of Information Act for access to 3 documents in the hands of the Crown:
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1. 2.
The report of a police inquiry into police misconduct in a murder investigation; and 2 x memoranda of legal advice related to the inquiry.
Req refused by minister responsible for police and on review (under Act) by info & privacy commissioner. Basis for refusal was that the Act contained two discretionary exemptions form disclosure: 1. For law enforcement records (covering the report); and 2. For solicitor-client privileged memoranda (covering the 2 memoranda)
The Act contained a provision (the “public-interest override”) that certain exemptions from disclosure did NOT apply “where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption”, BUT the exemptions for the law enforcement and solicitor-client privilege were NOT included in this “public-interest override”. The CLA argued that the public-interest override provision infringed the guarantee of freedom of expression because it did NOT extend to law-enforcement records or solicitor-client privileged records. SC rejected the constitutional argument, although it did remit the req back to the commissioner to reconsider whether any or all of the law-enforcement report (but NOT solicitor-client privileged memo) could be disclosed notwithstanding the inapplicability of the express public-interest override. Court held that although Ss. 2(b) guaranteed freedom of expression, NOT access to information, “access is a derivative right which may arise where it is a necessary precondition to meaningful expression on the functioning of government” Where it can be shown that, without the desired access, “meaningful public discussion and criticism on matters of public interest would be substantially impeded”, THEN there will be a prima facie case for access to records under Ss. 2(b) If the records are covered by a common-law privilege, like solicitor-client privilege, or a statutory privilege, like cabinet confidences, the privileges, although “in principle open to constitutional challenge”, are “in practice” likely to be upheld to maintain predictability and certainty as to what remains protected from production In some cases, “a particular government function is incompatible with access to government documents”, eg, occasions like the preparation of a judicial decision (after the hearing) or a cabinet discussion, where full and frank deliberation must NOT be compromised.
In summary: 1. Access to documents in government hands is constitutionally protected ONLY where it is shown to be a necessary precondition of meaningful expression, does not encroach on protected privileges, and is compatible with the function of the institution concerned.
Here, CLA had NOT established meaningful discussion of the investigation and prosecution in the murder trial required access to the docs since there was a great deal of info already in the public domain. Therefore, the Ss. 2(b) right of access did NOT apply. Even if it did apply, addition of the public-interest override to 2 exemptions would not add much to them Both were already discretionary and it was open to the minister of commissioner to exercise the discretion to release documents where there was a compelling public interest in disclosure. That would be unlikely in the case of the solicitor-client privileged documents, since solicitor- client privilege is “close to absolute”, but in the case of the law enforcement document (the report of the inquiry into police conduct), the matter should be remitted back to the commissioner to consider whether the public interest would warrant its discretionary disclosure.
Hogg says this case is very important, because before this decision a leg would have been free to repeal its freedom of information legislation, BUT that is no longer the case.
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CHAPTER 47: FUNDAMENTAL JUSTICE
47.1 Distribution of powers over Legal Rights
There is NO suggestion in the cases that the severity of the law’s impact on civil liberties is of importance in assigning legislative jurisdiction. Criminal law/procedure – federal power under Ss. 91(27) Provincial authority over the administration of justice in the province (Ss. 92(14)) includes the constitution of criminal and civil courts and civil procedure. A law might establish a legislative scheme, eg, traffic regulation, and may provide for investigation and enforcement of the scheme.
47.2 Section 7 of the Charter Life, liberty and security of person: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Better view is that Ss. 7 confers ONLY one right: the right NOT to be deprived of life, liberty or security of the person EXCEPT in accordance with the principles of fundamental justice. Canadian Bill of Rights (CBoR) (which applies only to federal laws) remains in force and Ss. 1(a) and 2(e) are of continuing importance because their coverage is BROADER than Ss. 7 in that 1 extends to enjoyment of property and 2 extends to ANY determination of “rights and obligations”.
47.3 Application of Ss. 1 CBoR
For the most part, the Court has routinely moved on to the issue of Ss. 1 justification once a breach of Ss. 7 has been made out – but see later – it is RARE that a law that breaches Ss. 7 will be justified under Ss. 1
47.4 Benefit of Ss. 7 (a) Corporations
Section 7 applies to “everyone” a word that is normally apt to include a corporation.
Irwin Toy v Que [1989]
However, SC held that Ss. 7 “everyone” does NOT include a corp; an artificial person such as a corp is incapable of possessing “life, liberty or security of the person”, b/c attributes of natural person However, a corp CAN invoke Ss. 7. Eg, when a corp is a D to a prosecution, the corp is entitled to defend the charge on the basis that the law is a nullity.
R v Wholesale Travel Group [1991]
SC held that this principle allows a corp to defend a criminal charge on the ground that the law under which the charge was laid would be a violation of Ss. 7 in its application to an individual. SC REJECTED argument that a law could be unconstitutional=individuals BUT constitutional=corps. SC REJECTED argument that a corp could be convicted under an unconstitutional law, even though the defect in the law (a denial of “liberty” in breach of fundamental justice) was NOT one that was relevant to a corp (because a corp has no right to “liberty”).
(b) Immigrants
“Everyone” in Ss. 7 includes illegal immigrants to Canada.
Singh v Minister of Employment and Immigration [1985]
Section 7 rights could be asserted by “EVERY human being who is physically present in Canada and by virtue of such presence amenable to Canadian law” (Wilson J for 3 of 6-J bench). (Beetz J for the other 3 JJ decided the case on the basis of CBoR, BUT assumed that illegal immigrants were entitled to the rights under CBoR) What Wilson J’s statement meant was that ANY illegal immigrant who claimed to be a refugee was entitled to a hearing before an official or tribunal with authority to determine issue.
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Argument that such a procedure would make it impossible to deal expeditiously with the many thousands of refugee claimants who arrive in Canada each year was rejected as inadmissible “utilitarian” or “administrative” concern which could not be permitted to vitiate individual rights 1. *subsequently – thousands of cases backlog as 36,000 refugees per year
(c) Foetus R v Morgentaler (No 2) [1988]
“Everyone” in Ss. 7 does NOT include a foetus and so a foetus is NOT entitled to a right to life. SC used Ss. 7 to strike down restrictions on abortion, the reasoning being that the restrictions deprived the mother of her right to liberty or security of the person
47.5 Burden of Ss. 7
Ss 7, like all the other rights, applies ONLY to “gov’t action”, as defined in Ss. 32 of the Charter.
47.6 Life
So far as “life” is concerned, the section has little work to do b/c gov’t action RARELY causes death. Chaoulli v Que [2005] (1) However, SC has held that excessive waiting times for treatment in public health care system of Quebec increased risk of death and were violation of right to life (& security of the person)
47.7 Liberty (a) Physical liberty Re BC Motor Vehicle Act [1985]
Law that imposes penalty of imprisonment, whether sentence is mandatory OR discretionary, is by virtue of that penalty a deprivation of liberty and MUST conform to principles of fundamental justice: (mandatory)
RE Ss 193 and 195.1 of Criminal Code (Prostitution Reference) [1990]
(“possibility of imprisonment”)
Re BC Motor Vehicle Act (1985)
Law that imposes ONLY penalty of a fine is NOT a deprivation of liberty and need NOT conform to the principles of fundamental justice
Bulhlers v BC (1999)
A suspension of a driver’s licence is NOT a deprivation of liberty
Medovarski v Can [2005] & ***Charkaoui v Can [2007]
The deportation of a non-citizen (w/o more) is NOT a deprivation of liberty attracting the rules of fundamental justice, because a non-citizen has no right to enter or remain in Canada
The following are examples of deprivations of liberty attracting the rules of fundamental justice:
Deportation to torture: ***Charkaoui v Can Deportation to torture will also be a breach of fundamental justice: Suresh v Can [2002] Statutory duties to submit to fingerprinting: R v Beare [1988] To produce documents: Thomson newspapers v Can [1990] To give oral testimony: Thomson newspapers v Can [1990] Not to loiter in or near school grounds, playgrounds, public parks and bathing areas: R v Heywood [1994]
Cunningham v Canada [1993]
Regarding change in terms of sentence amounting to deprivation of liberty The D had been sentenced in 1981 to 12 yrs’ imprisonment for manslaughter.
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Under the Parole Act in force at the time of his sentencing, was entitled to be released on mandatory supervision after serving two-thirds of the sentence, provided he had been of good behaviour. Before reached the 2/3 point of his sentence (which was 1989), the Parole Act was amended (in 1986) to empower the National Parole Board to cancel conditional release and require continued detention of the prisoner for the rest of his sentence. Power was exercisable where there was reason to believe that the inmate, IF released, was likely to commit an offence causing death OR serious harm during the unexpired portion of his sentence. Board exercised new power & D was NOT released on mandatory supervision. Applied for habeas corpus. SC held, although amendment of the Parole Act had NOT had the effect of lengthening the D’s 12-year sentence, it had altered the manner in which the sentence was to be served. Serving time on mandatory supervision was a less deprivation of liberty than serving time in prison. Change in law was a deprivation of a liberty interest, making Ss. 7 of the Charter potentially applicable. Held change in law was NOT a breach of principles of fundamental justice so that the D remained in prison.
May v Ferndale Institution [2005]
SC reviewed a decision by the Correctional Service of Canada to transfer a prisoner in the federal penitentiary system from a minimum-security institution to a medium-security institution. Medium-security institution would be MORE restrictive of the prisoner’s liberty. Thus, following Cunningham, SC held that the decision to transfer the prisoner was a deprivation of his “residual liberty”. Ss 7 applied and the decision had to observe the principles of fundamental justice. SC held that the failure of the Correctional Service to fulfil a statutory obligation to provide info as to the reasons for the transfer was NOT sufficiently important to amount to a breach of fundamental justice However, it DID make the transfer unlawful and the Court ordered that the prisoner be returned to a minimum-security institution.
Blencoe v BC [2000]
Bastarache J (for the maj) asserted that liberty in Ss. 7 is “NO longer restricted to mere freedom from physical restraint”; applies whenever law prevents a person from making “fundamental personal choices” Mr Blencoe claimed liberty interest had been impaired b/c of the unreasonable delay of the BC human Rights Commission in disposing of complaints of sexual harassment made against him by 2 women. SC held, with little discussion, that “in the circumstances of this case, the state has NOT prevented [Mr Blencoe] from making any fundamental personal choices” Le Bel J for dissenting minority pointedly refused to comment on the scope of Ss. 7 of the Charter Hogg argues MORE appropriate position to take in a case that did NOT call for a ruling about the protection of such vague notions as fundamental personal choices.
(b) Economic liberty Lochner v New York - 1905
Court had taken sides in a political conflict that was suitable for resolution ONLY by elected officials Re protection of liberties of owners of factories and mines against efforts of Congress and state Legislatures to limit hours of work
1937 Lochner overruled and since Court reluctant to review social and economic regulations
Above happened in US and cast shadow in Canada – framers of Canada’s Charter of Rights deliberately omitted any reference to property in Ss. 7 and any guarantee of the obligation of contracts
Prostitution Reference (1990) per Lamer J
The product is a Ss. 7 in which liberty MUST be interpreted as NOT including property, as NOT including freedom of contract and, in short, as NOT including economic liberty: COMPARED WITH Health Services and Support – Facilities Subsector Bargaining Assn v BC (2007) Ss. 2(d) protects collective bargaining by unions and extends to the terms of collective agreements such that provincial leg’n that attempted to legislate conditions that conflicted with the terms of the collective agreement was invalid.
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Concluded that “the restrictions on liberty and security of the person that Ss. 7 is concerned with are those that occur as a result of an individual’s interaction with the justice system, and its administration” merit in that Ss. 8 to 14 which follow, exclude economic liberty
Re Ss. 193 and 195.1 of Criminal Code (Prostitution Reference) [1990]
Held that Ss. 7 does NTO apply to corporations, b/c “liberty” does NOT include corporate activity
(c) Political liberty
“Liberty” does not include freedom of conscience and religion, freedom of expression, freedom of assembly, freedom of association, the right to vote and be a candidate for election, or the right to travel. These rights are all guaranteed elsewhere in the Charter.
47.8 Security of the person Canadian Foundation for Children, Youth and the Law v Canada [2004]
Challenge to CCd provision that provides a defence to a charge of assault for teachers and parents who use “reasonable” force “by way of correction” against the children in their care. Provision exposed children to force that would amount to a criminal assault IF committed against an adult. SC, relying on a concession by the Crown, had no difficulty in finding that the provision adversely affected the security of the person of the children to whom it applied. SC upheld the provision on the ground that there was NO breach of the principles of fundamental justice – effectively read down the provision
R v Mortgentaler (No 2) [1988]
Majority SC (5:2) held that the CCd’s restrictions on abortion, which required the abortion be approved by the therapeutic abortion committee of an approved hospital, were unconstitutional. The evidence showed that the requirement of approval by a therapeutic abortion committee restricted access to the procedure of an abortion (because some hospitals would not set up the required committees) and caused delays in treatment, which increased the risk to the health of the woman. All 5 majority JJ agreed that risk to health that was caused by law was deprivation of security of the person Breach of fundamental justice consisted (for 4 of the maj JJ) in the unnecessarily restrictive procedural req’s for a therapeutic abortion and (for Wilson J) in the deprivation of woman’s freedom of conscience.
Chaouilli v Quebec [2005]
SC held that excessive waiting times for treatment in the public health care system of Quebec caused unnecessary pain and stress to those awaiting surgery and other medical procedures. This was a breach of the right to security of the person (as well as the right to life, since the risk of death was sometimes increased by the prolonged delays) The law was designed to make the public system exclusive and it had that effect. Although 7 JJ bench was unanimous that the law caused a breach of security of the person, there was an even (3:3) split on whether the law was a breach of the principles of fundamental justice under Ss 7. (One judge (Deschamps J) confined her decision to the Quebec Charter of Human Rights and Freedoms, which contains similar guarantees to the Canadian Charter, BUT does NOT use the phrase “fundamental justice”. She held that there was a breach of the Quebec Charter. This became the majority position.) Quebec law was accordingly struck down, BUT the ruling does NOT extend beyond the province of Quebec.
Rodriguez v BC [1993]
Terminally ill with Lou Gehrig’s disease, challenged CCd offence of assisting a person to commit suicide. Argued the law deprived disabled of ability to commit suicide (which was NOT offence); wanted to commit suicide, BUT could not do so w/o medical assistance, b/c she was too disabled by her illness. Eight of the 9 JJ held that the removal from the P of an aspect of the control over her body was a deprivation of security of the person under Ss. 7 However, the P was NOT successful in her challenge to the law, because 5 of the 9 JJ held that the law did NOT offend the principles of fundamental justice. See later
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New Brunswick v G(J) [1999]
SC held that an application by the state to remove children from a parent and place them under the wardship of the state affected the security of the person of the parent. Security of the person was affected, because gov’t action would constitute “a serious interference with the psychological integrity of the parent” Result was that Ss. 7 applied and the removal proceedings HAD TO BE conducted in accordance with the principles of fundamental justice, which in this case led the Court to order that the parent be represented by state-funded counsel!
Winnipeg Child and Family Services v KLW [2000]
SC held that the warrantless apprehension of a child deemed to be “in need of protection” was a breach of the parents’ security of the person, although a majority held that the principles of fundamental justice had NOT been breached. There was no requirement of a warrant or other pre-apprehension hearing, because any such procedure would cause delay and consequent risk of harm to the child. In this context, the principles of fundamental justice were satisfied by a post-apprehension hearing.
Blencoe v BC [2000]
Blencoe relied on the protection of psychological integrity to seek a remedy under Ss. 7 for unreasonable delay by the BC HRC in disposing of complaints of sexual harassment made against him by 2 women. Bastarache J (for the maj of 5) held that state-induced psychological stress would be a breach of security of the person, BUT decided that the HRC’s delays did NOT have a sufficiently severe impact on the applicant’s psychological state to qualify as a breach. The stress was contributed to by a number of other causes, including the loss of his position in the BC cabinet and the relentless attentions of the media. However, Bastarache J said that the decision should not be construed as a ruling that delays in humanrights proceedings can never trigger an individual’s Ss. 7 rights It would therefore appear that there may be a constitutional remedy for administrative delay IF circumstances warrant.
John Whyte says that “state action which deprives a person of all (or a substantial portion) of his or her capacity to produce an income should be seen as invading security of the person”. Oliver Wendell Holmes would have pointed out, these are the issues upon which elections are won and lost; the judges need a CLEAR mandate to enter that arena, and Ss. 7 does NOT provide that clear mandate Gosselin v Quebec [2002]
P argued that Ss. 7 imposed on gov’t a positive obligation to provide adequate welfare benefits to those who were without other sources of income. Quebec had enacted a welfare scheme under which persons under the age of 30 received only 1/3 of the standard welfare benefit, which they could top up to the standard amount ONLY IF they participated in stipulated educational OR work experience programmes. The P, for various reasons, had not been able to participate in the “workfare” programmes and had been forced to subsist on the lower benefit. She sued to challenge the validity of the law (which had by then been repealed) and to recover the difference btw the amount of the welfare benefit that she received and the standard amount. Her challenge was based on Ss. 15 (age discrimination) as well as Ss. 7 and she failed on both grounds. Re Ss. 7, McLachlin CJ for the maj pointed out that Ss. 7 had NOT been extended to economic rights OR indeed to any rights wholly unconnected w/ the administration of justice She also pointed out that, while Ss. 7 prohibited state deprivations of life, liberty or security of the person, it had NOT been interpreted as imposing positive obligations on the state to ensure that each person enjoyed life, liberty or security of the person
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Arbour J, dissenting (with the agreement of L’Heureux-Dubé J) gave Ss. 7 more expansive interpretation that would condemn the Quebec law: Ss. 7 guaranteed a level of welfare sufficient to meet basic needs Further, the state was under a positive obligation to make provision for everyone’s basic needs In her view of Ss. 7, the precise amount of welfare is not reviewable, provided the Leg has determined that the amount meets basic needs, BUT “any differential treatment or underinclusion” that would leave anyone NOT fully provided for would be unconstitutional as a denial of the right to security of the person (except in the unlikely event of their being justified under Ss. 1) Thus, the division of the Court was 7:2 in favour of the narrower interpretation of Ss. 7
47.9 Property
The omission of property rights from Ss. 7 greatly reduces its scope. Ss. 7 affords NO guarantee of compensation or even a fair procedure for the taking of property by gov’t. However, the courts will imply these rights in the absence of an express legislative provision to the contrary, BUT there is no constitutional impediment to an express legislative provision to the contrary, except for Ss. 1(a) of the CBoR, which is applicable ONLY to the federal Parl’t. It means that Ss. 7 affords NO guarantee of fair treatment by courts, tribunals or officials w/ power over the purely economic interests of individuals or corporations. Courts will imply duty to observe the rules of “natural justice” in the absence of an express legislative provision to the contrary, BUT there is NO constitutional impediment to an express legislative provision to the contrary, except for Ss. 2(e) of the CBoR, which is applicable ONLY to the federal Parl’t.
Irwin Toy v Que (1989)
Also req that the interpretations of “liberty” and “security of the person” EXCLUDES economic liberty and economic security, otherwise property, having been shut out of the front door, would enter by the back
CBoR
Applicable to federal laws ONLY Ss. 1(a) guarantees “enjoyment of property” Ss. 2(e) guarantees “a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations”. Ref to determination of “rights and obligations” extends beyond Ss. 7’s “life liberty & security of person”.
Singh v Minister of Employment and Immigration [1985]
Beetz J, for half of the six-judge bench, being undecided whether life, liberty or security of the person was implicated, decided the case under Ss. 2(e). Wilson J, for the other half, held that Ss. 7 did apply and she decided the case on that basis. Both judges were agreed in the result, which was that the Immigration Act’s procedures did NOT measure up to the standard of fundamental justice and were therefore inoperative or invalid.
MacBain v Lederman [1985] (CoA)
Issue: whether Fed HR Code violated fundamental justice in provisions establishing adjudicatory tribunal. Code provided that members of tribunal were to be appointed by the HR Commission. Argued that mode of appointment gave rise to a reasonable apprehension of bias because the Commission was also in effect the prosecutor of the complaint. The Fed CoA upheld the claim of bias and struck down the appointment provisions of the Code. Court relied Ss. 2(e), which applied b/c tribunal w/ power to determine respondent’s rights & obligations. Court did NOT rely upon Ss. 7, presumably b/c the tribunal had NO power over life, liberty or security of the person. Civil litigation, whether before courts OR tribunals, usually about money or property THUS Ss. 7 does NOT apply to this kind of litigation BUT Ss. 2(e) DOES, so long as dispute is governed by Fed law.
Authorson v Canada [2003]
A disabled veteran challenged a provision in the federal Dep’t of Veteran Affairs Act that barred any claim to interest on moneys held by the Dep’t on behalf of disabled vets. P was incapable of managing his own funds and the Dep’t had been collecting veteran’s pension payments.
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After the P became competent, the Dep’t paid him the pension money that had accumulated over a 40year period, BUT paid him NO interest on the money. The P sued for the interest. It was common ground that the Crown was under a fiduciary duty to the veterans for whom it was holding funds to pay interest on the funds. The problem was the statute unambiguously barred any claim by veterans to interest on the funds. Section 7 was of no help, since ONLY property rights were at stake. The P accordingly invoked Ss. 1(a) and 2(e) of CBoR. SC denied relief under both provisions. Re Ss. 1(a), the P argued that he had been deprived of the “enjoyment of property” without “due process of law”: Parl’t had taken away his rights without notice or hearing. BUT SC refused to impose additional procedural obligations on Parl’t: “ONLY procedure due any citizen of Canada is that proposed legislation receive three readings in the Senate and HoC & receive Royal Assent”. Section 2(e) did NOT impose right to a “fair hearing” on Parl’t (as opposed to courts & admin tribunals). Court refused to interpret Ss. 1(a) as imposing a substantive obligation to provide compensation for expropriated property.
47.10 Fundamental justice (a) Procedure and substance
Drafters intended “fundamental justice” to mean “natural justice”, BUT problem was that they did NOT use the term “natural justice”.
Re BC Motor Vehicle Act [1985]
SC held that fundamental justice did indeed cover substantive as well as procedural justice. Case was ref by BC gov’t to determine the validity of a provision in BC’s Motor Vehicle Act that made it an offence to drive a car while prohibited from driving or while one’s driving licence was suspended. Act imposed a mandatory term of imprisonment on anyone found guilty of the offence. Controversial provision was subsection that declared that the offence was one of “absolute liability” in which “guilt is established by proof of driving, whether or not D knew of the prohibition or suspension”. SC held that it was a breach of fundamental justice to impose a term of imprisonment for an offence that lacked the element of mens rea (a guilty mind). SC made NO attempt to characterize this as a procedural defect in the law; the absence of mens rea created a substantive injustice. Section 7 prohibited substantive as well as procedural injustice. Lamer J (for the maj) referred to testimony in Special Joint Committee in which fundamental justice was equated with natural justice & the concern of the framers to avoid substantive due process was explained BUT he brushed this aside as being of “minimal weight” in comparison to the reasons for giving fundamental justice a more extended meaning. There were 3 such reasons for extending fundamental justice BEYOND procedure: (1) The words “fundamental justice” are literally broader in scope than other formulations that could have been used, such as “natural justice”; (2) The expansion of the concept of fundamental justice has the effect of expanding the protection of life, liberty and security of the person; and (3) (Hogg and Wilson J said more dubious) Ss. 7 is a kind of general residuary clause for all of the “legal rights” of the Charter. Sections 8 to 14 are merely “illustrative” of deprivations of fundamental justice that could just as easily be caught by Ss. 7. Since Ss. 8 to 14 go beyond merely procedural guarantees, it follows that Ss. 7 also MUST go beyond a merely procedural guarantee However, Hogg argues that there are two difficulties with the residuary theory of Ss. 7: (1) (pointed out by Wilson J) Ss. 8 to 14 are NOT in fact drafted as examples OR illustrations of Ss. 7; they are “self-standing provisions”; and (2) Ss. 8 to 14 are NOT confined to life, liberty and security of the person, as Ss. 7 is. Thus, eg Ss. 8, which protects property from unreasonable search or seizure, is NOT premised on a denial of life, liberty or security of the person; this is why Ss. 8 applies to corps, while Ss. 7 does NOTS.
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(b) Definition of fundamental justice
In BC Motor Vehicle Reference (1985), the ONLY def’n offered was Lamer J’s assertion that “the principles of fundamental justice are to be found in the basic tenets of the legal system” Further, “those words [fundamental justice] CANNOT be given any exhaustive content or simple enumerative def’n, BUT will take on concrete meaning as the courts address alleged violations of Ss. 7”. The Court NEVER explained why absolute liability, which has long been a familiar (if unloved) part of Canada’s system of criminal justice, was now contrary to the basis tents of the legal system… In Thomson Newspapers v Canada [1990] five judges gave five different opinions as to the applicable basic tenet of the legal system!
Cunningham v Canada [1993]
Did amendment to federal Parole Act breach principles of fundamental justice? Amendment empowered National Parole Board to deny prisoner release on mandatory supervision for the last 1/3 of sentence. New power was exercisable when there was reason to believe that the prisoner was likely to commit an offence causing death OR serious harm IF he was released for the unexpired portion of the sentence. Having determined that this change in the law was the deprivation of a liberty interest, SC had to decide whether it was a breach of the principles of fundamental justice. McLachlin J (for the Court) made NO reference to the basic tents of the legal system. She posed the question of fundamental justice as: (1) The … question is whether, from a substantive point of view, the change in the law strikes the right balance between the accused’s interests and the interests of society. Whenever a law deprives an individual of life, liberty or security of the person, the courts MUST determine whether Parl’t or Leg struck “right balance” btw competing values that legislators sought to reconcile. In this case, the SC agreed that “the balance is fairly struck” and upheld the impugned law However, IF Leg had got balance wrong, THEN law would have been struck down. Eg, a total abolition of release on mandatory supervision would presumably strike wrong balance & would be unconstitutional. Hogg argues difficult to resist conclusion that the Court was interpreting substantive fundamental justice as justifying Court in striking down law whenever Court disagreed w/ policy implemented by the law.
Rodriguez v BC (1993) - SC
Whether CCd’s prohibition of assisting suicide offended principles of fundamental justice. Hogg argues the issue could have been easily resolved by pointing to the CL, which had always prohibited assisting suicide, as well as counselling suicide, attempting suicide and even committing suicide (here, deceased’s property forfeited and indignities visited on the body) The modern CCd, which no longer made attempted suicide or suicide an offence was already a substantial liberalization of the CL. The effort to further liberalize the law should surely be characterized as directed to changing the basic tenets of the legal system RATHER than vindicating them. Hogg says this may be the reason why Sopinka J (for the maj) held that the law did NOT offend the principles of fundamental justice. He emphasized that the law was simply declaratory of the CL position. BUT he also asserted that the principles of fundamental justice MUST be “’fundamental in the sense that they would have general acceptance among reasonable people” and he found no such consensus on the issue of euthanasia. Hogg argues that search for consensus among people is a task MORE appropriate for Parl’t than courts In dissent, McLachlin J (with L’Heureux-Dubé J and the substantial agreement of Croy J) said that a law would violate fundamental justice IF the law was “arbitrary” or “unfair” A law would be arbitrary “if it bears no relation to, or is inconsistent with, the objective that lies behind the legislation” As to unfair laws: “The principles of fundamental justice require that each person, considered individually, be treated fairly by the law” The dissenters held that the CCd provision was arbitrary or unfair, because it precluded a disabled person (who would need assistance) from committing suicide while permitting an able-bodies person to do so. They would have struck down the prohibition, but delayed the declaration of invalidity for one year.
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Extradition cases
Sections 11 and 12 of the Charter are NOT applicable to charges or punishments under foreign law and have NO direct bearing on extradition cases: Can v Schmidt [1987] (Ss. 11 does not apply); Kindler v Can [1991] (Ss. 12 does not apply). SC has maintained, that courts DO have right to overturn extradition decisions (which are executive function of federal Minister of Justice) IF extradition would violate fugitive’s right to fundamental justice.
Canada v Schmidt [1987]
SC held that Ss. 7 would be breached by an extradition order where a fugitive faced a punishment under foreign law which would “shock the conscience” of, or be “simply unacceptable” to reasonable Canadians
US v Jamieson [1996]
SC has upheld extradition orders where fugitives faced drug charges in the US carrying mandatory penalties of 15-20 years imprisonment
R v Smith [1987]
The above orders were upheld despite the fact that the SC has held that a 7-year minimum sentence for similar offences in Canada’s Criminal Code is cruel and unusual
Kindler v Can [1991]; Re NG Extradition [1991]; US v Burns [2001]
In two cases in 1991, Court held that extradition of fugitive to face death penalty (which is almost certainly cruel and unusual in Canada) did NOT shock Canadian conscience & then a decade later the Court overruled
R v Malmo-Levine [2003]
Challenge to the criminalization of possessing marihuana, which included the penalty of imprisonment, thereby impairing liberty and engaging Ss. 7 Argued that a “harm principle” was a principle of fundamental justice, which was offended by criminalizing conduct which did not cause harm to others. Court denied “striking right balance” btw individual & societal interests was a req of fundamental justice Instead, the SC stated 3 requirements for a rule to qualify as a basic tenet of the legal system and therefore as a principle of fundamental justice: (1) The rule MUST be a “legal principle”; (2) There MUST be a “significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate”; and (3) The rule MUST be capable of being “identified with sufficient precision to yield a manageable standard”. Maj SC (8:1) held that the harm principle did NOT satisfy any of the 3 requirements Therefore, it was open to Parl’t to impose a sentence of imprisonment for crimes that did NOT involve harm to others, as it had done, eg, in the cases of cannibalism, bestiality, duelling and consensual incest.
R v Parker (2000) (Ontario C0A)
Held that possession of marihuana could NOT be prohibited (with imprisonment as a possible penalty) IF the prohibition did NOT include an exemption for those who had a medical use/need for the drug An absolute prohibition that threatened health was a breach of the principles of fundamental justice. Court suspended declaration of invalidity for a year to provide time for a medical exemption to be enacted. Within the year, the federal gov’t responded with the Marihuana Medical Access Regulations, which were enacted under a statutory power and which created a process that enabled certain categories of ill people to obtain a permit to cultivate and possess the drug for therapeutic purposes.
Hitzig v Canada (2003) (Ont CoA)
New regulations challenged. Ontario CA held that they were unconstitutional, because in practice they did NOT create a legal source of supply for many of those persons who were permitted to have the drug for medical purposes.
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To require those persons to purchase the drug from criminals was “inconsistent with the fundamental principle that the state MUST obey and promote compliance with the law” The Court struck down those parts of the new regulations that provided the barriers to the creation of a lawful source of supply to medical users of marihuana.
Canadian Foundation for Children, Youth and the Law v Canada [2004]
Challenge to CCd provision that provides a defence to a charge of assault for teachers and parents who use “reasonable” force “by way of correction” against the children in their care. Provision exposed children to force that would amount to a criminal assault if committed against an adult and therefore impaired the security of the person of the child, thereby engaging Ss. 7 It was argued that the “best interests of the child” was a principle of fundamental justice and that the exposure of children to corrective force was NOT in their best interests. SC accepted 3 req’s of fundamental justice that it had stipulated only a month earlier in Malmo-Levine. The Court held that: 1.
The best interests of the child WAS a legal principle;
2.
BUT NOT one that was generally regarded as fundamental to the justice of the legal system; and
3.
NOT one that yielded a sufficiently precise standard.
As a result, the best interests of the child was NOT a principle of fundamental justice and, even if the corrective-force defence was not in the best interests of the child, it did NOT infringe Ss. 7
Thomson Newspapers v Canada [1990]
A corporation and its officers objected to a demand made under the Combines Investigation Act for oral examination of the officers. Although the purpose of the demand was to inquire into the possible commission of an offence by the corp., NEITHER of the 2 Charter guarantees against self-incrimination was applicable. Section 11(c), which provides that a person charged with an offence is NOT a compellable witness against himself, was NOT applicable, because no one had been charged with an offence. Section 13, which provides that self-incriminatory evidence given in one proceeding cannot be used against the witness in another proceeding, was NOT applicable, because this inquiry was the first proceeding. If Ss. 11(c) and 13 expressed the full measure of the Charter’s right against self-incrimination, THEN there would be NO grounds upon which the demand for testimony could be resisted. But 5J bench of SC, following BC Motor Vehicle Reference, unanimous that the “principles of fundamental justice” in Ss. 7 could still contain some “residual” elements of the right against self-incrimination. Here, the 5 JJ came up with no less than 5 different theories as to what additional content Ss. 7 added to Ss. 11(c) and 13: (1) a right to remain silent (Sokinka J) (2) a right not to give an incriminating answer (Lamer J), (3) a right to have all evidence derived from the compelled testimony excluded from subsequent proceedings (Wilson J), (4) a right to have only that derivative evidence that could not have been discovered apart from the compelled testimony excluded from subsequent proceedings (La Forest J) (5) no right additional to Ss. 11(c) and 13 (L’Heureux-Dubé J)
47.11 Absolute and strict liability (a) Categories of offences
In pre-Charter case of R v City of Sault Ste Marie [1978] Dickson J divided offences into three categories: (1) Offences of “absolute liability”, in which the offence consists simply of doing the prohibited act. There is NO req of fault, either mens rea or negligence. The D could be convicted even if s/he had no intention of breaking the law and also exercised reasonable care to avoid doing so. (2) Offences of “strict liability”, in which offence consists simply of doing prohibited act; however, defence IF D proves civil standard on balance of probabilities that s/he exercised reasonable care (DD) to avoid committing the offence. In effect, there is a fault requirement of negligence. (3) Offences of “mens rea”, in which the offence consists not only of doing the prohibited act, BUT of doing w/ intent (mens rea). Intend to break law (OR reckless as to whether law would be broken).
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(b) Absolute liability offences Re BC Motor Vehicle Act [1985]
SC held that fundamental justice did indeed cover substantive as well as procedural justice. A provision in BC’s Motor Vehicle Act that made it an offence to drive a car while prohibited from driving OR while one’s driving licence was suspended. A subsection explicitly declared that the offence was “absolute liability”, for which guilt is established by proof of driving, whether or not D knew of the prohibition or suspension”. SC held that absolute liability was a denial of fundamental justice. Since the offence carried a short term of imprisonment, a conviction would mean a deprivation of “liberty”. The offence was therefore declared to be in violation of Ss. 7 and of no force or effect.
R v Hess [1990]
Challenge to the statutory rape provision of the CCd. Provision made offence for male to have intercourse w/ female under 14, “whether or not he *the accused+ believes that she is fourteen years of age or more”. Offence was one of absolute liability, since NO defence for accused to show that reasonably believed act to be innocent: the accused’s conduct could be lacking in mens rea and non-negligent. The offence carried a penalty of imprisonment. SC followed BC Motor Vehicle Reference to hold unanimously that an absolute liability offence that carried the penalty of imprisonment was a breach of fundamental justice in violation of Ss. 7 The result was NOT to strike down the offence entirely, since the deletion of the words “whether or not he believes that she is fourteen years of age or more” sufficient to remove the element of absolute liability.
R v Penno [1990]
SC held that the offence of driving while impaired did NOT offend fundamental justice, although the offence excluded the defence of intoxication. The mental element of voluntarily becoming intoxicated was a sufficiently guilty mind to satisfy the BC Motor Vehicle Reference
R v Pontes [1995]
SC classified amended version of offence in BC Motor Vehicle Act of driving while prohibited from driving. Act provided that ANY driver who was convicted of a driving-related CCd offence was “automatically and w/o notice” prohibited from driving for 12 months. Cory J for the maj held that quoted phrase meant a duly diligent driver could be unaware of the prohibition and could innocently commit the offence of driving while prohibited. The principle that ignorance of the law is no excuse would preclude the accused from raising his ignorance of the statutory suspension as a defence. Cory J concluded that statute effectively barred defence of DD, which meant offence was absolute liability The Motor Vehicle Act purported to impose a term of imprisonment for the offence, which would be an unconstitutional deprivation of liberty under Ss. 7 However, the amended Act now contained a saving provision to the effect that, notwithstanding the imprisonment penalty in the Act, “no person is liable to imprisonment for absolute liability offence”. Cory J applied this provision to “read out” the penalty of imprisonment. The result was that there was NO penalty of imprisonment for the offence of driving while prohibited. Thus NO breach of liberty under Ss. 7 & NO need for law to comply w/ principles of fundamental justice. The offence, although one of absolute liability, was accordingly upheld. PONTES makes clear that Ss. 7 has NO application to an offence that carries ONLY the penalty of a fine, even a very large fine, because in that case “liberty” is not affected.
R v Transport Robert (2003)
IF no imprisonment is provided for, STILL possible for Parl’t or Leg to create offences of absolute liability
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Presumption in favour of strict liability Lévis v Tétreault [2006]
LeBel J: “Absolute liability offences exist, BUT become exception requiring clear proof of legislative intent” Faced with statutory language that appeared to impose absolute liability, SC held that offences under Quebec’s Highway Safety Code of driving unregistered car & driving w/o licence strict liability offences That ruling allowed a defence of DD to the two accused, whose excuses were that they had not received notices of renewal of the car registration (in one case) and the driver’s licence (in the other). However, accused were STILL convicted, b/c Court held that mere failure to receive renewal notice, w/o any positive steps on their part to attempt to accomplish the renewal, did NOT amount to DD.
Different options to saving the offence (rather than striking it down):
Interpret statute as implicitly allowing DD defence, thus offence becomes strict liability (Lévis v Tétreault) To use the power of severance (or reading in) to convert the offence into one of mens rea (R v Hess); or To use the power of severance to eliminate the penalty of imprisonment, in which case the offence (if it is a regulatory one) can survive as one of absolute liability (R v Pontes).
(c) Strict liability offences R v Wholesale Travel Group [1991]
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Accused corp. was charged w/ offence of false or misleading advertising under the Competition Act. Crown alleged Co. had advertised travel packages at “wholesale” prices, BUT were “retail” prices. Act made clear that there was NO req of mens rea: ONLY defence was one of DD (reasonable care) and the burden of proving DD rested w/ the accused Offence therefore followed the conventional pattern of strict liability. Penalty for the offence was a fine or imprisonment for up to five years or both. Accused relied on BC Motor Vehicle Reference to argue that it was a violation of fundamental justice to place an individual in jeopardy of imprisonment for any lesser fault than mens rea. Crown agreed that BC Motor Vehicle Reference req element of fault for an offence carrying penalty of imprisonment, BUT Crown argued that an absence of DD (negligence) satisfied the requirement. SC unanimously held that the offence of false or misleading advertising was NOT a “true crime”, BUT merely a “regulatory offence” or “public welfare offence”. Cory J explained that characteristic of a “true crime” is “inherently wrongful conduct” that’s punished. A regulatory offence, on the other hand, was designed to establish standards of conduct for activity that could be harmful to others; it did NOT imply moral blameworthiness; and it attracted less social stigma. SC reasoned, it was NOT a constitutional objection to offence that it was premised on negligence (lack of due diligence) RATHER than mens rea. The Court treated it as obvious that the offence of misleading advertising fell into the “regulatory” category, DESPITE the fact that it carried a maximum penalty of 5 years’ imprisonment. Competition Act contained “reverse onus” clause requiring D to charge of false or misleading advertising to prove (to civil standard) that s/he had exercised DD to avoid making the false or misleading claims Even IF the Act had been silent as to the defence and the burden of proof, the effect of the Sault Ste Marie decision was that a reg offence was to be regarded as one of strict liability, 2 characteristics of which were: (1) That there was a defence of due diligence; and (2) That the burden of proving due diligence rested on the D. Therefore, to uphold offence in Wholesale Travel (or other strict liability offence involving imprisonment), the Court ALSO had to decide whether reversal of the burden of proof was defeated by Charter. Issue was governed, NOT by Ss. 7, BUT by Ss. 11(d), the presumption of innocence clause, discussed later. Majority Court (5:4) upheld the reversal of the burden of proof. In the case of a “regulatory offence” OR a “public welfare offence”, including those that carry the penalty of imprisonment, fundamental justice does NOT require that mens rea be an element of the offence. Fundamental justice is satisfied IF there is a defence of reasonable care (DD) and the burden of proving reasonable care (to the civil standard) may be cast on the D.
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In the case of “true crimes”, however, fundamental justice REQ that mens rea be an element of the offence and the burden of proving mens rea (to the criminal standard) would have to be on the Crown.
R v Hundal [1993]
Re CCd offence of dangerous driving causing death carries a maximum penalty of 14 years imprisonment. SC held that this was NOT “true crime” for which mens rea was constitutionally required. Here, the accused had driven his truck through a red light and collided with another car in the intersection, killing the driver. The accused testified that he believed that he did not have time to stop safely when the light turned amber, so that he believed that his driving through the intersection was the prudent course of action. This raised the question whether the accused had to be subjectively aware that his driving was dangerous in order to be convicted of dangerous driving. SC cited Wholesale Travel for proposition that “in the appropriate context, negligence can be an acceptable basis of liability which meets the fault requirement of Ss. 7 of the Charter” That proposition governed this case: all that the Crown needed to establish was an objective departure by the accused from the appropriate standard of care. The fact that the accused believed that he was driving safely was irrelevant. NO explicit ref in this case however to dangerous driving causing death being a “regulatory offence”.
R v Nova Scotia Pharmaceutical Society [1992]
SC rejected challenge to Competition Act offence of conspiring to lessen competition unduly. Act expressly eliminated element of MR providing that it was NOT necessary for the prosecution to prove that the accused intended that his actions would have the effect of lessening competition unduly. Did this provision violate the principles of fundamental justice guaranteed by Ss. 7 of the Charter? Gonthier J, for the Court, answered no. He held that the challenged provision contained both a subjective mental element AND an objective mental element, namely, the requirement that the accused ought to have known that the agreement would lessen competition. This was enough to satisfy the “minimum fault requirement” of Ss. 7 Gonthier J pointed out that proof by the Crown that the accused had entered into an agreement that had the effect of lessening competition unduly would “in most cases” be all that was needed, because the “logical inference” from proof that the accused had entered into such an agreement would be that the accused ought to have known that the agreement would have the effect of lessening competition unduly.
Hogg argues the “objective” mental element – consisting of what the accused ought to have known – is close to no mental element at all. A businessperson who entered into an agreement that s/he believed would enhance competition would have committed the offence if a criminal court concluded that the actual effect of the agreement was to lessen competition unduly. The opinion in this case did NOT describe the offence under challenge as a “regulatory offence”. On the contrary, Gonthier J said offence of conspiring to lessen competition unduly was “at the core of the criminal part of the Act”.
Gonthier J did NOT mention the stigma or the maximum penalty (here, 5 years imprisonment) that was attached to the offence and did NOT offer any other reasons why he regarded a departure by the D from an objective standard as a sufficient fault requirement to satisfy Ss. 7
R v Finlay [1993]
SC reviewed the CCd offence of storing a firearm “in a careless manner”. Max penalty was 2 years’ imprisonment for a first offence and 5 years’ for a second or subsequent offence. It was necessary to decide whether negligence was a sufficient fault requirement for CCd offence. Lamer CJ quoting Hundal said that “in the appropriate context, negligence can be an acceptable basis of liability which meets the fault requirement of Ss. 7 of the Charter” Lamer CJ held that the offence “does NOT give rise to sufficient stigma to req subjective MR under Ss. 7”. The fault requirement of negligence was upheld.
R v Naglik [1993]
Challenge to CCd offence of failing to provide necessaries of life to a child under the age of 16 years.
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The accused’s baby had in fact been brutally beaten either by the accused or her common law spouse over a period of several weeks and they had given the baby no medical treatment. SC (Lamer CJ) held that offence did NOT req subjective MR: whether parent failed to provide necessaries of life to child was measured by “objective, societal standard” NOT by subjective belief of accused. Objective standard satisfied Ss. 7 of the Charter, relying again on the Hundal proposition quoted above. Lamer CJ acknowledged that conviction would “stigmatize” accused, BUT held that “stigmatization is neither unfairly disproportionate nor unrelated to culpable conduct of which the accused was found guilty” He also pointed out that “the sentencing judge can tailor the sentence to the circumstances of the particular offence and offender, eliminating the danger of the accused being punished to a degree out of proportion to the level of fault actually found to exist”
It is not easy to summarize the present state of the law.
BC Motor Vehicle Reference STILL stands for the proposition that Ss. 7 of the Charter requires that offences that carry the penalty of imprisonment MUST include an element of fault. According to Wholesale Travel, that element of fault MUST be subjective mens rea IF the offence is a true crime, BUT need ONLY be negligence (departure from an objective standard of due diligence) IF the offence is a regulatory offence. The acceptance of negligence as a sufficient element of fault is an abandonment of the broader principle of BC Motor Vehicle that the morally innocent should NOT be punished, because the merely negligent offender may sincerely believe that his/her conduct is lawful. Yet in Hundal, SC held that negligence WAS ONLY constitutional req for offence that carried a punishment of 14 years’ imprisonment and the SC did NOT clearly state that the offence was a regulatory one. In Nova Scotia Pharmaceutical and Naglik, the SC also accepted that a departure from an objective standard was the only constitutional requirement for an offence that the SC implied was a true crime.
47.12 Murder
The CCd’s def’n of murder USED TO include the so-called felony-murder rule. IF accused caused death in course of committing certain serious offences while armed with a weapon, THEN the accused was guilty of murder. In place of any culpable state of mind, the felony-murder rule required ONLY proof of the felony, the use or carrying of the weapon and the ensuing death.
R v Vaillancourt [1987]
Accused charged w/ murder b/c of poolroom robbery & accused’s accomplice shot and killed customer. The accused knew that his accomplice was carrying a gun and of course he intended to rob the poolroom. He was charged under the felony-murder branch of murder (and the party rule) and the appeal proceeded on the assumption that he did not foresee that a death was likely to ensue from the robbery (subjective foresight) and that there was at least a reasonable doubt as to whether he ought to have foreseen that a death was likely to ensue (objective foresight). SC held that the felony-murder rule was a violation of fundamental justice under Ss. 7 of the Charter. The fact that an accused MUST have MR (a guilty mind) w/ respect to the underlying offence, in this case, the robbery, was NOT sufficient to satisfy Ss. 7 Before an accused could be found guilty of murder, Ss. 7 required that there be mens rea with respect to the death. Therefore, the felony-murder rule was unconstitutional. Ratio decidendi (at 653-654): “There are, though very few in number, certain crimes where, because of the special nature of the stigma attached to a conviction therefor or the available penalties, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime. Such is theft, where, in my view, a conviction requires proof of some dishonesty. Murder is another such offence. The punishment for murder is the most severe in our society and the stigma that attaches to a conviction for murder is similarly extreme”.
McIntyre J, dissenting, pointed out that open to Parl’t to decide that robbery that causes a death is a MORE serious offence than a robbery that does not. IF this is so, THEN the objection to the felony-murder rule is simply an objection to the use of the name “murder”. He took the view that the use of the word “murder” to classify an unintentional killing ought not to be regarded as a breach of fundamental justice. Stigma is more important than the penalty in attracting the Vaillancourt doctrine.
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R v Logan (1990)
Lamer CJ “social stigma associated w/ conviction is the most important consideration, NOT the sentence”
R v Martineau [1990] - SC
Majority held that higher level of MR– subjective foreseeability – was what was required by Ss. 7 However, L’Heureux-Dubé J, dissenting, pointed out that it ought to be open to Parl’t to enact that “flagrant, callous, ruthless or selfish acts, perpetrated by one whose purpose is already criminal, will be treated more harshly than a mere accidental killing”
R v Logan [1990]
Challenge to Ss. 21(2) CCd (party provision), offence IF they are carrying out unlawful purpose together AND, although ONLY one of them actually commits offence, others “knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose” Here, the two accused’s were participants in the armed robbery of store, in the course of which a third participant shot and severely injured the sales clerk of the store. Two accused’s were convicted as parties under Ss. 21(2) to the crime of attempted murder, on the basis that they ought to have known that the shooting was a probable consequence of their common purpose. SC set aside their convictions. SC held that crime of attempted murder was one of those “very few offences” for which Ss. 7 stipulated a requirement of subjective mens rea. NO mandatory penalty for attempted murder, BUT did NOT matter b/c it was NOT the penalty, BUT “the social stigma associated w/ conviction” for attempted murder that was “MOST important consideration”. Since subjective MR was required by Ss. 7 for a conviction for attempted murder, the same level of MR was required for the conviction of a party to the offence. Therefore, the phrase “or ought to have known” in Ss. 21(2), which purported to make objective MR sufficient for the conviction of a party, was inapplicable whenever the principal offence was attempted murder or any other offence for which subjective mens rea was constitutionally required.
R v Finta [1994]
Subjective MR is also required for war crimes and crimes against humanity committed outside Canada
Vaillancourt and Logan
Theft is another example carrying such social stigma associated w/ offence
The following cases have determined that subjective MR was NOT required to make out the relevant offence: o o o o o o o
R v Wholesale Travel Group (1991) (false advertising); R v Nova Scotia Pharmaceutical Society (1992) (conspiring to lessen competition); R v DeSousa [1992] 2 SCR 944 (unlawfully causing bodily harm); R v Hundal (1993) (dangerous driving causing death); R v Creighton [1993] 3 SCR 3 (manslaughter by unlawful act); R v Finlay (1993) (storing a firearm in a careless manner); R v Naglik (1993) (failing to provide necessaries of life to a child)
47.13 Unforeseen consequences R v DeSousa [1992]
Accused, threw glass bottle that shattered against wall, causing fragments to injure an innocent bystander. The accused neither intended nor foresaw this injury. However, injury was used as basis of CCd charge of unlawfully causing bodily harm. This offence carried a penalty of imprisonment (10 years), so that Ss. 7 of the Charter was applicable.
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Sopinka J (for the Court) held that the ONLY mental element that was constitutionally required for the offence of unlawfully causing bodily harm was embedded in the word “unlawfully”. That required unlawful act, which Sopinka J held MUST be statutory offence w/ a constitutionally sufficient mental element. This ingredient of the offence was not in dispute. What was in dispute was the mental element required for causing bodily harm. SC held that there was “no constitutional requirement that intention, either on an objective or subjective basis, extend to the consequences of unlawful acts in general” Therefore, the accused was properly convicted of unlawfully causing bodily harm despite his lack of intention or foresight with respect to the bodily harm. Sopinka J held that, as a matter of statutory interpretation, the CCd offence required objective foresight of bodily harm, meaning that the accused ought to have foreseen the risk of the injury that ensued. BUT he emphasised in the above quoted language that NOT even objective foresight was required by Ss. 7 Sopinka J distinguished the line of cases involving murder and attempted murder on the basis that murder and attempted murder were among “those few offences which due to *their+ stigma and penalty require fault based on a subjective standard” The offence of unlawfully causing bodily harm did NOT carry stigma / penalty to be “those few offences”. For all of the less serious offences, element of MR that was required by the principles of fundamental justice did NOT include any foresight (subjective or objective) of the consequences of an unlawful act. In other words, under Ss. 7, “it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused”
R v Hundal [1993]
Dangerous driving causing death The 3 concurring opinions were devoted exclusively to the mental element involved in dangerous driving. Having decided that the mental element was an objective one, so that the accused’s subjective belief that he was driving safely was no defence, the SC affirmed his conviction.
R v Creighton [1993] - Manslaughter
SC had to determine what the mental element of the offence of manslaughter by unlawful act was, which consisted of causing the death of a human being by an unlawful act. The possibilities were: 1.
The accused actually foresaw the risk of death (subjective foresight of death);
2.
The accused ought (as a reasonable person) to have foreseen the risk of death (objective foresight of death);
3.
The accused actually foresaw risk of bodily harm (subjective foresight bodily harm); and
4.
*** The accused ought (as a reasonable person) to have foreseen the risk of bodily harm (objective foresight of bodily harm).
According to Lamer CJ (w/ 3 others), stigma was NOT enough for (1), BUT was TOO much for (3) and (4); it was just right for (2), so the offence was unconstitutional in requiring only (4) According to McLachlin J (with 3 others), the stigma was just right for (4) and so the offence was constitutional. La Forest J (who alone did not measure the stigma) broke the tie by also coming out in favour of (4). In the end, therefore, the Court by a 5:4 majority, upheld the constitutionality of the CCd’s requirement of OBJECTIVE FORESIGHT OF BODILY HARM as the mental element of unlawful act manslaughter. Foresight of the death was not required, despite the fact that the maximum penalty for manslaughter was imprisonment for life.
183
47.14 Involuntary acts (a) Automatism
May engage in behaviour while state of “automatism” & that auto behaviour NOT offence b/c involuntary.
R v Parks [1992]
The accused got up at night, drove his car 23 km’s from his home to the home of his wife’s parents, parked, got out, entered the home of the parents-in-law, killed his mother-in- law and wounded his father-in-law. He was charged with murder and attempted murder. His defence was that he was sleep-walking throughout, which resulted in a state of automatism. He testified to that effect and his testimony was supported by five psychiatric experts, none of whom had of course actually observed the behaviour. The experts were not only confident that the accused was sleep-walking at the time of the attacks, they were also confident that he was not suffering from any “disease of the mind” that would cause him to be classified as insane (and incarcerated for that reason). He was acquitted and the acquittal was upheld by the SC. A person may suffer a “psychological blow” that induces a state of automatism, causing him to commit acts of violent that are involuntary (or unconscious).
R v Stone [1999]
The accused, after relentless taunting by his wife, stabbed her to death. The behaviour of the wife was accepted by the jury as provocation, which reduces murder to manslaughter and the accused was acquitted of murder and found guilty of manslaughter. Appealed on ground that he should have been acquitted, b/c taunting was a psychological blow that had induced state of (non-insane) automatism that freed him from criminal responsibility for stabbing A 5:4 maj held that this defence (which the TJ had refused to put to the jury) was NOT available, b/c a “normal” person would not have shifted into a state of automatism as the result of the wife’s taunts (although Court did NOT doubt that more severe psychological blow could effect on normal person). Minority of the Court would have ordered a new trial to enable the jury to consider whether the accused should be acquitted on the basis of automatism. Bastarache J. for majority said defence of automatism, b/c it was “easily feigned and all knowledge of its occurrence rests with the accused”, should have to be proved by the defence on the balance of probabilities. He acknowledged that this would be a breach of presumption of innocence under Ss. 11(d) BUT held that the shift of burden JUSTIFIED under Ss. 1 The requirement of voluntariness is a basic tenet of the legal system that is protected by Ss. 7 of the Charter, at least for all offences carrying the penalty of imprisonment. Hogg argues that this means that the law respecting automatism now has constitutional status and any attempt by Parl’t to abolish the defence or restrict its availability would be unconstitutional, unless the limiting law could be justified under Ss. 1
(b) Duress R v Ruzic [2001]
Accused arrived at Pearson Airport Toronto carrying heroin strapped to her body and a fake passport and was detected, arrested, charged and tried for unlawful importation of narcotics and use of a false passport. At trial, admitted both offences, BUT claimed that she had been forced to commit the offences by a man in Belgrade (where she lived) who threatened to harm mother (who also lived in Belgrade) if the accused did not follow his order to take the drugs to Toronto. Although this story was entirely uncorroborated (she had not divulged her fears to the police or her mother or anyone else), it was evidently believed by the jury, who acquitted her. Crown appealed on ground that the limiting conditions of Ss. 17 were NOT satisfied. Since the bad man was in Belgrade when the offences were committed in Toronto, his threats were not “immediate” and he was NOT “present when the offence was committed”. Therefore, she did NOT qualify for the statutory excuse. The SC affirmed the acquittal of the accused. Section 7 of the Charter was applicable because the offences carried the penalty of imprisonment. LeBel J for the unanimous Court held that it would be a breach of the principles of fundamental justice to convict a person of a crime when that person had not acted voluntarily.
184
Immediacy and presence requirements of Ss. 17 were struck down as unconstitutional, because they had the potential, on facts like those of the present case, of convicting a person who had NOT acted voluntarily.
(c) Intoxication R v Daviault [1994]
SC held that Ss. 7 requires that extreme intoxication be a defence to a criminal charge. Before this decision, a person could NOT escape responsibility for offences of general intent by pleading drunkenness. An offence of general intent is one for which the mental element of the offence (MR) is simply an intention to do the prohibited act (actus reus). (1) [An offence of specific intent is one for which there is a required mental element in addition to the intention to do the act.] (2) [Eg, assault to resist arrest is an offence of specific intent (because the intention to resist arrest is an added mental element), while simple assault is an offence of general intent (because the only mental is the intention to commit the act of assault).] Here, the accused was charged with a sexual assault. The complainant, who was confined to a wheelchair, testified that the accused (who had been drinking in her apartment) had wheeled her into her bedroom, thrown her onto the bed and sexually assaulted her. Accused testified that he had been drinking heavily during the day and evening and that he awoke w/o any clothes on in the complainant’s bed, but had no recollection of what had happened before that. TJ found that the accused had committed the act of sexual assault, BUT he acquitted the accused on the basis of a reasonable doubt as to whether the accused had the intent necessary to commit the offence. Maj SC (6:3) held that Ss. 7 and 11(d) of the Charter were offended by the rule that self-induced intoxication was NO defence to a criminal charge. Cory J, for the maj, held that under Ss. 7, the req of MR for a crime of general intent could ONLY be the intention to commit the prohibited act. The intention to become drunk could NOT be substituted for the intention to commit the forbidden act. Having derived this premise from the Charter, he reasoned that to eliminate the ONLY permissible mental element form the crime was a breach of fundamental justice resulting in a breach of Ss. 7 Section 11(d) ALSO infringed, b/c denial of defence of drunkenness would enable accused to be convicted notwithstanding reasonable doubt whether accused possessed ONLY permissible mental element of crime. In short, the Charter req that self-induced intoxication, if it was SO extreme as to be akin to automatism, MUST free the accused from criminal liability. Cory J for maj held accused had to establish defence of extreme intoxication on balance of probabilities. Cory J also asserted “that it is always open to Parl’t to fashion a remedy which would make it a crime to commit a prohibited act while drunk”. Hogg argues whole judgment against this… Parl’t had to enact legislation as 3 successful uses of the drunkenness defence followed. Amendment to the CCd that described extreme self-induced intoxication as a marked departure from “the standard of reasonable care generally recognized in Canadian society” and provided that this departure constituted the fault required for conviction of offences of violence. This amendment has not been challenged.
R v Robinson [1996] – SPECIFIC INTENT
SC turned its attention to offences of specific intent. In an earlier case (R v MacAskill [1931]), the SC had held that the defence of intoxication required evidence that the accused was so intoxicated that he was incapable of forming the required specific intent. Robinson was a case of murder, which is an offence of specific intent, b/c intention to kill (or the foresight of death) is a specific intent that MUST be established for conviction. Here, the accused had been drinking heavily before first beating his victim over the head with a stone and then going and getting a knife and stabbing the victim several times in the stomach. In conformity with MacAskill, the TJ instructed the jury that the accused was entitled to be acquitted ONLY if there was a reasonable doubt as to his capacity to form the intention to kill. The jury found him guilty. The SC ordered a new trial, holding that this limitation on the defence of intoxication offended Ss. 7 and 11(d) of the Charter.
185
The Court overruled MacAskill and held that, if drunkenness raised a reasonable doubt as to whether the accused in fact possessed the requisite specific intent, the accused was entitled to be acquitted even if there was no doubt that the accused possessed the capacity to form the requisite intent.
47.15 Overbroad laws R v Heywood [1994]
Established new doctrine of “overbreadth”, applies to law broader than nec. to accomplish purpose. Overbreadth is a breach of the principles of fundamental justice and is therefore a basis for a finding of unconstitutionality in a law that affects life, liberty or security of the person. Provision of CCd made offence (of “vagrancy”) for person who had been previously found guilty of the offence of sexual assault to be “found loitering in or near a school ground, playground, public park or bathing area”. Cory J, for maj SC, held that the purpose of the law was to protect the safety of children. Cory J acknowledged that a restriction on liberty for the purpose of protecting the safety of children would NOT be a breach of fundamental justice. BUT, he held, a law that restricted liberty more than was necessary to accomplish its purpose would be a breach of fundamental justice by reasons of “overbreadth”. In this case, the law was overbroad for 3 reasons: 1.
Its geographic scope was TOO wide, because parks and bathing areas included places where children were not likely to be found;
2.
Its duration was TOO long, because it applied for life without any possibility of review; and
3.
The class of persons to whom it applied was TOO wide, because some of the offenders to whom it applied would not be a continuing danger to children.
Because the law was overbroad, it offended the principles of fundamental justice. It could NOT be upheld under Ss. 1, because its overbreadth would cause it to fail the minimum impairment (least drastic means) branch of the Ss. 1 analysis. The law was therefore struck down in its entirety. Overbreadth is NOT the same as vagueness. Basis Cory J’s opinion was law that restricts liberty “for no reason” offends principle of fundamental justice. NOTE that purposes defined different by the SC – Cory J, for maj, defined it as being for the protection of children, while Gonthier J, dissenting, defined purpose as being for protection of adults as well as children. Also, Cory J interpreted loitering as not involving anything more than mere presence in the prohibited areas, while Gonthier J interpreted the term as req some malevolent intent. A feature of Cory J’s opinion is his use of hypothetical cases to demonstrate the overbreadth of the law. He was concerned about the application of the law to “remote wilderness parks” and to “a man convicted at age 18 of sexual assault of an adult woman who was known to him in a situation aggravated by alcohol”. The case before the Court, however, was a man, who had been previously convicted of sexual assault, who was found standing at the edge of a children’s playground in a public park in Victoria, taking photographs of the children with a camera with a telephoto lens; the film in the camera and photographs in his home showed that he was taking pictures of young girls with their clothing disarranged from play so that their crotches, although covered by underclothes, were visible. TJ regarded the behaviour as sufficiently sinister to impose 3-month prison sentence followed by 3 years of probation. CF to SC analysis based entirely on hypothetical cases involving most innocent offenders! This mode of reasoning is a very powerful tool of JR, since there must be few laws indeed in which it would not be possible to design a hypothetical case (disregarding the realities of police and prosecutorial discretion) that is caught by the law although it falls outside the apparent purpose of the law.
Ontario v Canadian Pacific [1995]
Canadian Pacific was charged with offence under Ontario’s Environmental Protection Act of discharging a contaminant, namely, smoke, into the natural environment. The Co. had been clearing the part of its railway right-of-way that ran through the town of Kenora, by burning the grass and weeds growing on the right-of-way. Smoke caused nuisance & discomfort to residents of town whose complaints led to laying of the charge. SC considered the new doctrine of overbreadth, which involved assessing the impact of the law on the most innocent possible offender. Court was unanimous as to the outcome, upholding the law and its applicability to Canadian Pacific. The majority opinion was written by Gonthier J and a concurring opinion was written by Lamer CJ.
186
The discharge of smoke in a wilderness area (instead of Kenora) or the placing of sand on icy sidewalks by homeowners gave Lamer CJ enormous difficulty, since they appeared to be discharges of contaminants that were caught by the literal words of the Act. He explicitly recognized the fact that police and prosecutors would not lay charges based on the wilderness smoke or the sandy sidewalks was irrelevant under the most innocent possible offender principle. However, recognition of the overbreadth argument in this case would be a serious blow to effective environmental regulation, which MUST rely on broad general language to capture the multitude of polluting activities that ought to be prohibited. Lamer CJ solved the problem by invoking the presumption of constitutionality and adopting an artificially narrow interpretation of the Act that, he said, exempted the wilderness smoke and the sandy sidewalks. Gonthier J, for the maj, also managed to find an interpretation of the Act (a different one) that he said excluded speculative or imaginary uses of the environment. Both judges, then, held NOT overbroad & Ontario permitted to continue to try to regulate its environment.
R v Clay [2003]
Argued that the law criminalizing the possession of marihuana, which included imprisonment & therefore impaired liberty under Ss. 7 offended the principles of fundamental justice, because it was overbroad. The maj held that challenge failed. It was obvious that the law caught people who were in possession of marihuana in the privacy of a home, who were not about to drive a car or operate machinery and who were not members of the “vulnerable groups” of “chronic users” who would be harmed by marihuana use. Although the great majority of people who smoked marihuana in a harmless way would be subject to criminal penalties, the majority gave this argument short shrift, asserting that “a narrower prohibition would NOT be effective”; and that there was “a rational basis for extending the prohibition to all users”. In conclusion, the prohibition was not overbroad.
Canadian Foundation for Children, Youth and the Law v Canada [2004]
Challenge to the provision of the CC that permitted teachers and parents to use reasonable force for the purpose of correction against the children in their charge. It was argued that the provision was overbroad, because it applied to children under 2, who were not capable of learning from physical correction and to teenagers, who could suffer psychological harm from physical correction. The maj acknowledged that the evidence bore out these claims, BUT answered them with a syllogism. Because the law “does not permit force that cannot correct or is unreasonable”, and because all examples of overbreadth would involve applications where force could NOT correct or would be unreasonable, the law could not be overbroad
R v Demers [2004]
SC considered regime established by the CCd for accused persons who were found to be unfit to stand trial. This involved annual hearing by review board to determine whether accused was still unfit to stand trial. If he was found fit to stand trial, he would be sent to trial. IF not, the board would determine whether he should be undergoing treatment and whether he should be in custody or at liberty under conditions; and the situation would be reviewed at the next annual hearing. According to the SC, this regime worked appropriately for an accused person who was NOT permanently unfit to stand trial; such a person would remain in the process until he had recovered the capacity to stand trial and would THEN be tried. BUT the Court held that the law WAS overbroad because of its application to a person who suffered from a mental disorder that made him permanently unfit for trial. A person who would NEVER be fit to stand trial was trapped in the system, subject to the annual reviews and whatever restrictions on his liberty the review board chose to impose. As long as the charge remained outstanding, there was no power in a court to order a discharge even if the accused person was not a threat to public safety. Since the law made no provision for an absolute discharge for the permanently unfit accused, it was overbroad; and since the law impaired liberty under Ss. 7, its overbreadth made the law unconstitutional. The Court struck down the law, BUT postponed the declaration of invalidity for 12 months to allow for Parl’t to amend the law.
187
If the law were not amended during the 12-month period, the Court ordered that a stay of proceedings be granted to those permanently unfit accused who did not present a threat to the safety of the public.
47.16 Disproportionate laws R v Malmo-Levine [2003]
Established a new doctrine of “disproportionality”, which is breach of the principles of fundamental justice & therefore basis for finding of unconstitutionality in law that affects life, liberty or security of the person. (It may be that there are two doctrines, one of arbitrariness and one of disproportionality. The majority opinion of Gonthier and Binnie JJ treated the 2 ideas separately, while the dissenting opinions of LeBel and Deschamps J treated disproportionality as the test for arbitrariness) The doctrine of disproportionality, according to the maj, requires the Court to determine: 1.
whether a law pursues a “legitimate state interest”; AND
2.
if it does, whether the law is grossly disproportionate to the state interest
This issue was the criminalization (with the possibility of imprisonment) of the possession of marihuana. SC asked whether there was a legitimate state interest in the prohibition of marihuana use (yes); and whether the prohibition of possession was too extreme a response to that state interest (NO, therefore NO disproportionality and NO breach of Ss. 7)
47.17 Arbitrary laws Chaoulli v Quebec [2005]
Challenge to Quebec’s prohibition on the purchase of private health care insurance. Purpose and effect of prohibition was to make the universal public health care plan exclusive. The evidence established that there were excessive delays in seeking treatment through the public health care system and yet for all but the very rich (who could travel outside Canada for treatment) persons needing treatment were effectively precluded from obtaining timely care privately. SC held unanimously that the failure to provide timely care in the public system led to breaches of the right to life (since delays sometimes increased the risk of death) and the right to security of the person (since delays prolonged pain and stress). Was prohibition breach of principles of fundamental justice? The 7 JJ bench split evenly (3:3) on this issue. (Deschamps J declined to decide the issue, because she held that the law was in breach of the Quebec Charter and that it was not necessary to consider the Canadian Charter. Opinion created majority in favour of striking down law, BUT by confining her opinion to Quebec Charter denied national effect to the ruling.) For McLachlin CJ and Major (Bastarache J concurring) the Quebec law prohibiting private health insurance offended the principles of fundamental justice, because it was “arbitrary”. They used a different test from the test of disproportionality that the Court had recently laid down in Malmo-Levine. A law is arbitrary if it “lacks a real connection on the facts to the purpose the *law+ is said to serve”. That was the case here, because the evidence showed that other developed countries with universal public health care plans permitted parallel access to private care without injury to the public health system. Binnie and LeBel JJ (Fish J concurring) (in dissent) agreed that arbitrary laws were offensive to fundamental justice and also agreed with the McLachlin-Major definition of arbitrary laws. However, their opinion relied on expert evidence that the development of a private system would divert resources away from the public system, ultimately reducing the quality of the public health system. For them, the discouragement of private health care was a rational means of supporting the public health care system and was therefore not arbitrary. Deschamps J held that there was a breach of the principles of personal inviolability under the Quebec Charter and the ban on private insurance could not be justified. Rejected theory that private health care is threat to healthy public system & the tenor of her opinion was similar to McLachlin-Major opinion.
AC v Manitoba [2009]
Challenge to Manitoba’s Child and Family Services Act, which contained powers to apprehend a child in need of protection and to apply to a court for an order imposing medical treatment that “the court considers to be in the best interests of the child”.
188
For a child aged 16 or over, no treatment order could be made unless the court was satisfied that the child lacked the capacity to give consent to treatment. AC, a 14-y-o girl who was a Jehovah’s Witness, refused her consent to a blood transfusion that hospital doctors regarded as urgently necessary to protect her from death or serious damage. Under the statutory powers, she was apprehended and a judge ordered the blood transfusion. The judge recognized that AC, although only 14, WAS sufficiently mature to make decisions about her medical treatment, but he decided nevertheless that, in light of the danger to her life or long-term health, the blood transfusion would be in her best interests. The treatment was given and AC recovered. Although the validity of the treatment order was moot, AC (and her parents) appealed the order as a means of challenging the constitutionality of the statutory power to override the child’s wishes re medical treatment. The challenge was based on Ss. 7 (as well as Ss. 2(a) and 15). AC argued that the power to override the wishes of a child under 16 who WAS sufficiently mature to determine her own medical treatment was a breach of the principles of fundamental justice because it was arbitrary. SC maj (6:1) rejected this argument and upheld the constitutionality of the statutory power. Abella J., for the maj, agreed that it would be arbitrary to assume that no one under the age of 16 had the capacity to make medical-treatment decisions, BUT the best-interests standard enabled the judge to take increasingly serious account of the child’s own wishes as her age, maturity and independence advanced. THAT was not arbitrary (or discriminatory or violative of religious freedom). Abella J and McLachlin CJ (who on this point concurred for essentially the same reasons as Abella J) reaffirmed the McLachlin-Major definition of arbitrariness from Chaoulli. In this case, the protective purpose of the law was served by the best-interests standard, which enabled the judge to take account of the choice of the child while weighing other considerations bearing on voluntariness such as the effect of parental influence on the choice of a dependent child.
47.18 Vague laws (a) Void for vagueness
A vague law violates the principles of fundamental justice, which causes a breach of Ss. 7 IF the law is a deprivation of life, liberty or security of the person. A vague law offends 2 values that are fundamental to the legal system: 1.
the law does NOT provide fair notice to persons of what is prohibited, which makes it difficult for them to comply with the law;
2.
the law does NOT provide clear standards for those entrusted with enforcement, which may lead to arbitrary enforcement.
Vagueness does NOT satisfy the requirement of “prescribed by law” in Ss. 1 of the Charter, which means that a vague law in derogation of a Charter right CANNOT be saved by Ss. 1
Saumur v Que [1953]
(Federalism: vagueness can also have an invalidating effect under the federal distribution of powers, because it can cause difficulty in classifying the law as in relation to a matter coming within one of the heads of power of the enacting legislative body
Prostitution Reference [1990]
It was argued that the offence of communicating for the purpose of engaging in prostitution was in breach of Ss. 7, because the offence was unconstitutionally vague. SC, while acknowledging that the prohibition was “broad and far reaching”, DENIED that it was so vague that a court could not give “sensible meaning” to its terms. This attack was rejected, as were the attacks based on freedom of expression and freedom of association.
United Nurses of Alberta v Alberta [1992]
Argued that the criminal offence of contempt of court was unconstitutionally vague under Ss. The offence of contempt of court is UNIQUE in Canada in that it has NOT been reduced to statutory form. Section 9 of the CC, while abolishing common law offences, makes an exception for contempt of court, which accordingly survives as a common law offence.
189
SC held that it was NOT a requirement of fundamental justice that a criminal offence be codified in statutory form. Although the elements of the common law offence were NOT as clear as could be achieved in a statutory definition, the offence was “neither vague nor arbitrary”.
R v Nova Scotia Pharmaceutical Society [1992]
The Competition Act offence of conspiring to lessen competition “unduly” was attacked under Ss. 7 on the ground that the crucial word “unduly” was unconstitutionally vague. SC rejected this argument. Gonthier J, for the Court, reviewed the cases that had interpreted the word “unduly” and concluded that “Parliament has sufficiently delineated the area of risk and the terms of debate to meet the constitutional standard”.
Ontario v Canadian Pacific [1995]
A challenge was brought to a provision in Ontario’s Environmental Protection Act, which made it an offence to discharge a “contaminant” into the “natural environment” that could impair the quality of the environment “for any use that can be made of it”. It was argued that the controlling concepts of “contaminant”, “natural environment” and “use” were so vague that the offence was void for vagueness under Ss. 7 Gonthier J, for a Court that was unanimous on this issue, held that, although the leg’n was very broad and general, its scope was “reasonably delineated” so that “legal debate can occur as to the application of the provision in a specific fact situation”. The Court here made an important distinction between overbreadth and vagueness. In the case of vagueness, the use of hypothetical cases is NOT permitted. Once the law has been determined to apply to D on facts of case before the court, the D is not permitted to point to the vagueness of the law in its application to other (hypothetical) cases not before the court.
(b) Standard of precision
Nova Scotia Pharmaceutical, Gonthier J said: “A vague provision does NOT provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. It does NOT sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion. Such a provision is not intelligible, to use the terminology of previous decisions of this Court, and therefore it fails to give sufficient indications that could fuel a legal debate”.
Of the tests included in the passage (whether the law is “intelligible”, whether the law sufficiently delineates “an area of risk” and whether the law provides “an adequate basis for legal debate”), the last has been preferred, being applied by Gonthier J in his conclusion in that case and employed by the SC in subsequent cases (eg, in R v Morales; Ont v Can Pacific; Can. Foundation for Children, Youth and the Law v Can (2004)). A useful test proposed by Hogg is: a law is unconstitutionally vague IF it fails to give fair notice of what conduct is prohibited by the law and IF it fails to impose real limitations on the discretion of those charged with enforcement of the law.
Prostitution Reference (1990)
However, there is no req that a law be “absolutely certain”, because “no law can meet that standard” Also a law is NOT vague if it is open to more than one interpretation. A law is unconstitutionally vague ONLY if it cannot, even with judicial interpretation, provide meaningful standards of conduct
Canadian Foundation for Children, Youth and the Law v Canada [2004]
Challenge to Ss. 43 of the CCd, a provision that provides a defence to a charge of assault for teachers and parents who apply “reasonable” force “by way of correction” against the children in their charge.
190
McLachlin CJ for the maj ignored the large body of case law in the lower courts which had given Ss. 43 a broad reach and instead relied on expert evidence as to the efficacy of corporal punishment against children. [NOTE SIMILARITY WITH BEDFORD – relies on expert evidence on efficacy of the prostitution laws] Based on that evidence, she issued a new interpretation of the section: Generally, Ss. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered by Ss. 43. It is wrong for law enforcement officers or judges to apply their own subjective views of what is “reasonable under the circumstances”; the test is objective. The question must be considered in context and in light of all the circumstances of the case. The gravity of the precipitating event is not relevant.
So interpreted, she held that Ss. 43 “sets real boundaries and delineates a risk zone for criminal sanction” that is a sufficiently clear standard to avoid the charge of unconstitutional vagueness. Arbour J, dissenting, points out that the restrictions on Ss. 43 that were stipulated by the CJ had “not emerged from the existing case law”, were “far from self-evident and would not have been anticipated by many parents, teachers or enforcement officials” (at *190+). In her view, the CJ was not engaged in “mere interpretation”, but had drafted “an entirely new provision” In her view, section 43 as enacted by Parl’t WAS unconstitutionally vague.
(c) Application to other Charter rights R v Morales [1992]
SC held that the doctrine of vagueness ALSO applies to Ss. 11(e) of the Charter (the right “not to be denied reasonable bail without just cause.” Lamer CJ, for the maj, said that “there CANNOT be just cause for a denial of bail within the meaning of Ss. 11(e) IF the statutory criteria for denying bail are vague and imprecise” CCd provision authorized a judge to deny bail to an accused person on the ground “that his detention is necessary in the public interest.” Lamer CJ acknowledged that the value of “fair notice to the citizen” was “not relevant to a provision … which does not prohibit conduct” However, the value of limiting the discretion of those charged with enforcement was relevant. The “public interest” criterion would authorize a “standardless sweep”, because under that criterion “a court can order imprisonment whenever it sees fit” Lamer CJ concluded that the bail provision provided “no guidance for legal debate” and was therefore void for vagueness
R v Hall [2002]
Parl’t replaced invalid public-interest provision w/ a power to deny bail “on any other just cause being shown” & “where detention is necessary in order to maintain confidence in the administration of justice”. SC in Hall held unanimously that the former phrase was still unconstitutionally vague, BUT held by a majority that the latter phrase was sufficiently precise to be valid. Morales makes clear that the vagueness doctrine would ALSO imply to rights such as Ss. 8 (unreasonable search and seizure) and Ss. 9 (arbitrary detention). Also, a vague law is not “prescribed by law” and so could NEVER satisfy Ss. 1
47.19 Wrong laws R v Gamble [1988]
The accused was tried and convicted for murder and sentenced to life imprisonment. She was tried, convicted and sentenced under the CCd provisions in force at the time of the trail, which was a mistake, b/c provisions had just come into force and were not in force when offence committed.
191
Not only had the elements of the offence been changed, so had the rules regarding eligibility for parole. Had she been convicted under the old (correct) law, she would have been eligible for parole after 10 years. Under the new (incorrect) law, she was ineligible for parole for 25 years. The trial and conviction took place in 1976, before the Charter. In 1986, when the Charter was in force and she had served 10 years of her sentence, she applied for habeas corpus to remove from her sentence the condition that she be ineligible for parole for 25 years. SC granted the application. Wilson J, for the maj, held that continued detention of the prisoner without eligibility for parole was a breach of Ss. 7 Principles of fundamental justice were to be found in “the basic tenets of our legal system”. It was a basic tenet of any legal system “that an accused MUST be tried and punished under the law in force at the time the offence is committed”. Since that did NOT happen, there was a breach of Ss. 7 and the accused was entitled to be declared eligible for parole immediately.
47.20 Right to silence R v Hebert [1990]
Accused had been arrested and advised of his right to counsel. He did retain counsel and he advised the police that he did NOT wish to make a statement. However, he was then placed in custody with an undercover police officer, disguised as another prisoner, who engaged the accused in conversation and to whom the accused made an incriminating statement. SC held that the statement had been obtained in breach of the Charter. The obvious route to that result was the right to counsel in Ss. 10(b), because it is clear that the right to counsel is violated if the police continue questioning an accused who has exercised his right to counsel. BUT route Court in fact took was a “right to silence”, which was a principle of fundamental justice in Ss. 7 The right to silence was a “basic tenet of the legal system”, although it was no part of the legal system as recently as 1981, when the Court had, in a pre-Charter case, admitted a statement made by an accused to an undercover police officer posing as a prisoner: Rothman v The Queen [1981] Right to silence arose ONLY upon detention and it precluded ONLY statements elicited by police questions. A voluntary statement to another prisoner (R v Gray (1991) (CA)) OR even to an undercover police office (R v Logan [1990]) would NOT offend the right IF the police officer did not actively elicit the statement. In this case, however, the accused’s statement had been elicited by the questioning of the undercover police officer. In effect, the police had used a trick to subvert the accused’s election not to make a statement to the police. This was a breach of Ss. 7. The statement was excluded.
R v Broyles [1991]
The accused made a statement while in custody to a friend who visited him at jail. Unknown to the accused, the friend had been recruited as a police informer and was wearing a body pack upon which the accused’s statement was recorded. The informer was NOT a police officer. However, the SC held that the informer was acting as an agent of the state and should be covered by the same constitutional restraints as a police officer. Since the recording showed that the informer had actively elicited the statement by his questions to the accused, the statement was obtained in breach of the right to silence. The statement was excluded.
R v Osmar (2007) (CoA)
Undercover police, posing as organized crime, offered accused the opportunity to join their organization. In order to join, however, he HAD to admit to the commission of a serious crime; that way he would show that he trusted the organization and that he could be counted on to carry out the criminal orders of Mr Big. He confessed to the murder of 2 men. At his trial for the murders, the TJ admitted the confession made to the police officers and the accused was convicted. Ontario CA dismissed an appeal from the convictions. The confession was correctly admitted as evidence. The right to silence was NOT triggered by these facts, because the accused was NOT being detained by the police when he made his confession. Accused was unaware that he was talking to police officers and was NOT under any form of state coercion. The mere fact that the confession was elicited by police trickery did NOT engage the right to silence.
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R v Singh [2007]
The accused, while in police custody, was advised by his counsel NOT to talk to the police. He relayed that advice to the interviewing police officer, who nevertheless continued to go over the evidence with him and engage him in limited conversation. Eventually, when shown pictures of the crime scene (a pub) that had been taken by video surveillance, the accused identified himself in the video. At trial, this evidence was admitted on the basis of a finding by the TJ that the admission was voluntary and the accused was convicted of second-degree murder. On appeal, the accused did not contest the finding of voluntariness, BUT he argued nevertheless that his right to silence under Ss. 7 had been breached by the police officer continuing to talk to him after he had stated clearly that he did not want to talk to the police. A majority SC held that the right to remain silent did NOT include “the right not to be spoken to by state authorities”. For a person who (unlike Osmar) is in detention and therefore covered by Ss. 7, BUT who (unlike Herbert and Broyles) knows that he is talking to a person in authority, the right to silence is NOT offended by a voluntary statement. Here, accused’s statement was NOT induced by threats, promises, oppression or trickery and had been found to be voluntary. It was properly admitted in evidence at the trial. Majority distinguished the right to silence under Ss. 7 from the right to counsel under Ss. 10(b). The right to counsel is OUTSIDE the control of an accused who is in police custody; the accused is dependent on the help of the police to exercise the right. This explains why the right to counsel under Ss. 10(b) has been interpreted as requiring the police to refrain from questioning the accused UNTIL he has had a reasonable opportunity to contact counsel. BUT, where, as here, the accused has contacted counsel, the right to silence under Ss. 7 should NOT be interpreted as continuing to preclude police questioning. The accused has an operating mind and of his own free will may change his mind about whether to talk to the police. That change of mind may take place as the result of police persuasion, provided the police conduct does not deprive him of choice. Since a voluntary statement by an accused person is likely to be reliable, to impose a holding-off obligation on the police would run counter to “the state interest in the effective investigation of crime”. “The ultimate question”, however, “is whether the accused exercised free will in choosing to make a statement” the uncontested finding at trial that the accused’s statement was voluntary entailed the conclusion that the right to silence had NOT been breached.
Additional Rights afforded by ‘Right to Silence’ – Ss. 7
The right to silence under Ss. 7 affords additional rights at the trial stage to Ss. 11(c) (accused not compellable witness at own trial) and 13 (witness who gives self-incriminatory evidence has right not to have that evidence used against him/her in other proceedings). Section 11(c), which applies ONLY to the accused in a criminal trial, is supplemented by a Ss. 7 right, which applies to ANY witness in any proceeding and which makes the witness non-compellable if the true purpose of calling the witness was to obtain incriminating evidence against the witness: BC Securities Commn v Branch [1995] E.g., if a commission of inquiry was established with the purpose of inquiring into some public issue and if the commission summoned a witness, not for the purpose of advancing the inquiry, but of obtaining incriminating testimony from the witness, Ss. 11(c) would NOT make the witness non-compellable, BUT Ss. 7 would.
R v Fitzpatrick [1995]
A provision in the federal Fisheries Act required that records be kept by fishers and supplied to government on a daily basis Could these records, which were required by gov’t to regulate the fishery, be used as evidence at the trail of a fisher for the offence of overfishing (catching fish in excess of statutory quotas), which carried the penalty of imprisonment. There was NO breach of Ss. 11(c) b/c the accused was NOT being compelled to be a witness at his own trial.
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However, the accused argued that it would be a breach of Ss. 7 for the Crown to make use of the accused’s own compelled statements about his fishing activities as evidence against him. SC rejected the argument, holding that the records could be used at the accused’s trial. In the context of a regulatory scheme to which the accused had voluntarily submitted by engaging in the business of fishing, fundamental justice did NOT provide an immunity against the use of statutorily compelled information.
R v White [1999]
Were 3 reports, which had been made to the police under the compulsion of a provincial law requiring the reporting of serious traffic accidents, admissible at the criminal trial of the person who made the reports, who was charged with failing to stop at the scene of an accident? Again, Ss. 11(c) was NOT implicated, because accused was NOT being compelled to be witness at own trial. Section 7 WAS implicated, however, because the offence of failing to stop at the scene of an accident carried the penalty of imprisonment. SC held that, b/c the accident reports were provided under compulsion, their admission into evidence against the accused WOULD violate a principle of fundamental justice under Ss. 7, namely, a principle against self-incrimination. This was the opposite result to that reached on the similar facts of Fitzpatrick, where the fishing catch reports were admitted. The Court distinguished Fitzpatrick on the grounds that “driving is not freely undertaken in precisely the same way as one is free to participate in a regulated industry such as the commercial fishery” and that the reporting of traffic accidents, unlike the reporting of fishing catches, was to the police whose duty was to investigate possible crimes arising out of the accidents reported Because of these difference, fundamental justice provided immunity against the use in the criminal trial of the statutorily compelled information.
R v Jarvis [2002]
Income Tax Act confers on tax officials the power to req a taxpayer to produce books and records & the power to inspect books and records; neither power requires a search warrant or similar process. According to the Act, the powers to require and inspect are available for the “administration or enforcement” of the Act. The SC drew a distinction between the audit function of tax officials (when the powers were available) and the investigation function (when they were not). SC held that a regulatory statute such as the Income Tax Act could validly confer these powers, provided the powers were limited to the audit functions of tax officials, ie, when they were monitoring compliance with the Act. This was so, even though non-compliance with the filing and reporting requirements of the Act could expose the taxpayer to summary offences and civil penalties. However, the Act also created a set of MR offences that could loosely be regarded as tax evasion and for those offences the Act provided severe penalties, including imprisonment. When the taxpayer was vulnerable to the penalty of imprisonment, Ss. 7 of the Charter was applicable. Section 7’s residual principle against self-incrimination became applicable when “the predominant purpose” of a tax official’s inquiries moved from audit to investigation, ie, an inquiry into the commission of an offence carrying the penalty of imprisonment At that point, the requirement and inspection powers ceased to be available. The Court permitted material compulsorily obtained during the audit phase to be used in the investigation phase (and as evidence in the criminal trial if one occurred), because of the low expectation of privacy in documents already surrendered to and inspected by tax officials. BUT, during the investigation phase, tax officials could NOT continue to use the audit powers to collect evidence for a criminal prosecution. If more material was sought from the taxpayer, it had to be obtained by standard criminal investigatory techniques, which would involve a search warrant.
Section 13
Section 13 applies ONLY to self-incriminatory evidence given by a witness (making it inadmissible to incriminate the witness in other proceedings) and is supplemented by a Ss. 7 right, which applies to “derivative” or “secondary” evidence. Derivative evidence is evidence that is discovered as the result of the witness’ testimony.
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Derivative evidence is NOT self-incriminatory because it was not created by the witness but existed independently of the witness’ testimony. The Ss. 7 right expands on Ss. 13 by excluding derivative evidence that would probably not have been discovered but for the witness’s testimony: BC Securities Commn v Branch (1995). (1) EG, on a trial for murder, the gun that is tendered by the Crown as the murder weapon may have been found in a hiding place that was discovered only because it was disclosed in the accused’s compelled testimony when he was a witness in earlier proceedings against a person charged with the same crime. (2) In the above example, the murder weapon would NOT be excluded by Ss. 13, BUT it will be excluded by Ss. 7. The basis for the accused’s residual Ss. 7 right to exclude the evidence is that it would be a breach of fundamental justice for the Crown to make use of evidence with such a direct connection to the compelled self-incriminatory testimony. A statutory compulsion to give testimony is a deprivation of liberty under Ss. 7 of the Charter, which gives rise to a right against self-incrimination, which is a principle of fundamental justice. The Ss. 7 right against self-incrimination may give rise to 3 different kinds of immunity: 1.
“use immunity”, which protects the witness from having the compelled testimony used to incriminate him/her in a subsequent proceeding. This is provided to “a witness who testifies in any proceedings” by Ss. 13 and to persons other than witnesses by Ss. 7, as illustrated in R v White.
2.
“derivative use immunity”, which protects the witness from having the compelled testimony used to obtain other evidence (derivative or secondary evidence) to incriminate him/her in a subsequent proceeding, unless the derivative evidence is discoverable independently of the compelled testimony.
3.
constitutional exemption from testifying in the first place, which applies if an attempt is made to use a statutory compulsion to obtain testimony for the predominant purpose of obtaining evidence for the prosecution of the witness.
This is illustrated by the gun example and BC Securities Commn v Branch.
This is illustrated by R v Jarvis. Re Application under Ss 82.2 of the Criminal Code [2004]
All of the above 3 immunities were engaged by the Anti-Terrorism Act of 2001, which made provision for a “judicial investigative hearing”, in which a person could be examined under oath before a judge in order to obtain information in relation to a “terrorism offence”. SC held that a witness could be compelled to testify in this proceeding, BUT Ss. 7 of the Charter would protect witness from self-incrimination through ALL THREE IMMUNITIES Act expressly accorded use immunity and derivative use immunity to the testimony and the Court held that the constitutional exemption would apply in accordance with Jarvis IF the predominant purpose of the hearing was to obtain evidence for the prosecution of the witness.
47.21 Fair trial (a) The right to a fair trial
The principles of fundamental justice require that a person accused of a crime receive a fair trial. In this respect, Ss. 7 overlaps with Ss. 11(d), which also guarantees to a person charged with an offence “a fair and public hearing by an independent and impartial tribunal”.
(Section 7 will be applicable ONLY if the offence is punishable by imprisonment, which is a deprivation of “liberty”. Section 11(d) will be applicable EVEN IF the offence is only punishable by a fine. A civil action for damages is not caught by either Ss. 7 or Ss. 11(d): BC v Imperial Tobacco [2005]).
Section 7 is wider than Ss. 11(d), because Ss. 7 ALSO applies to civil and administrative proceedings where they affect life, liberty or security of the person.
New Brunswick v G(J) [1999]
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SC held that an application by the state to remove children from the custody of a parent affected the parent’s security of the person and made Ss. 7 applicable. The principles of fundamental justice required that a fair hearing be provided, which in turn required that the parent be provided with representation by state-funded counsel.
Winnipeg Child and Family Services v KLW [2000]
SC held that the warrantless apprehension by the state of a child “in need of protection” was NOT a breach of the principles of fundamental justice. A requirement of a warrant issued by a judge or a hearing before a judge prior to apprehension would lead to delay which would create a risk of harm to the child. Here, the principles of fundamental justice were satisfied by a post-apprehension hearing.
Extradition US v Yan (2001) (CoA)
All that an extradition judge in Canada can do is to determine whether the requesting state has a prima facie case against the fugitive
US v Kwok [2001]
While the fugitive is entitled to know the case against him, he is NOT entitled to the full disclosure of all relevant prosecution evidence that is required in a criminal trial
In 3 cases, threats of severe penalties and conditions of imprisonment were made by a prosecutor and judge in the US to attempt to persuade fugitives to avoid the Canadian extradition process and go voluntarily to the place of trial in the US. Despite the fact that the US had made out a prima facie case against the fugitives, the SC stayed the proceedings on the ground that the extradition of the fugitives in light of these threats would be a breach of the principles of fundamental justice: (1) US v Cobb [2001]; US v Tsioubrios [2001]; US v Shumlman [2001]
The right to a fair trial does NOT mean that all existing rules of procedure and evidence that are directed to a fair trial are constitutionalized and consequently immutable, eg: (1) there is no constitutional right to an appeal: Charkaoui v Can [2007] *** (2) there is no constitutional right to a preliminary hearing or to any other form of oral discovery of prosecution witnesses: R v L (SJ) [2009]; R v Bjelland [2009] (no right to C-E witness at prelim)) (3) SC has upheld a provision of the CCd that allows for the videotaping of the evidence of a witness who is under the age of 18, so that at the trial, the witness need only adopt the contents of the tape instead of going over the whole story again: R v L (DO) [1993] (right to C-E preserved) (4) SC also upheld another provision that allows a witness under 18 to testify from behind a one-way screen, so that the witness cannot see the accused (although the accused can see the witness): R v Levogiannis [1993] (right to C-E preserved)
***Charkaoui v Canada [2007] 1 SCR 350
Issue was process for issue of “security certificates” under federal Immigration and Refugee Protection Act Act empowered 2 ministers to issue certificate declaring non-citizen named in certificate to be threat to national security. Certificate authorized arrest and detention of the named person. In the case of a “permanent resident”, arrest and detention was authorized by Act, BUT was not mandatory. In the case of a “foreign national” (a non-citizen who was not a permanent resident), it WAS mandatory. The certificate was to be automatically referred to a judge of the Federal Court for review on standard of reasonableness and, IF the judge found certificate to be reasonable, it became a removal order, authorizing the deportation of the named person. Problem w/ process was that at NO stage did the named person necessarily know the nature of the case against him. There was no hearing on the original issue of the certificate. On review by the federal court judge, the named person was entitled to be heard, BUT the Act required the judge to “ensure the confidentiality of the information on which the certificate is based … if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person”.
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This obligation meant that judge would often be unable to disclose to the named person the info upon which the certificate had been based. SC held on issue of security certification was deprivation of liberty under Ss. 7 and that the review process did NOT satisfy the principles of fundament justice, b/c did NOT provide named person w/ fair hearing. McLachlin CJ, for the Court, acknowledged that “the procedures required to meet the demands of fundamental justice depend on the context” (at *20+) and she also acknowledged that “national security considerations CAN limit the extent of disclosure of information to the affected person”, BUT she held that “the secrecy required by the scheme denies the named person the opportunity to know the case put against him/her and hence to challenge the government’s case”. SC applied the Oakes test to determine whether law could be justified as a reasonable limit on Ss. 7 There was no doubt that protection of secret information respecting nat’l security & intelligence sources was sufficiently important objective and withholding such information was rationally connected to the objective. BUT the law failed to limit the right by the least drastic means, b/c Parl’t could have adopted procedures to protect secrecy that were less intrusive of individual rights. The SC pointed to a system of “special counsel” that had previously been used in Canada and was used in other countries in national security cases. Special counsel were independent counsel with security clearances who could be retained by the FCJ and to whom full disclosure could be made and who could then scrutinize the evidence and do their best to defend the interests of named person. SC, although attracted to the idea of special counsel, did NOT offer it as the ONLY answer, making clear that “precisely what is to be done is a matter for Parl’t to decide”. BUT, w/o some effort to compensate for the non-disclosure of secret information, the security- certificate process could NOT be justified under Ss. 1
Charkaoui v. Canada (Citizenship and Immigration), Issue: o Was the process for the issue of a security certificates‖ under the federal Immigration and Refugee Protection Act. The Act empowered 2 minsters to issue the certificate declaring a non-citizen named in the certificate to be a threat to national security. The certificate authorized the arrest and detention of the person. The certificate was then brought to a judge to review on the standard of reasonableness then if found to be reasonable the person would be deported. During the review process, ex parte and in camera hearings are held at the request of the Crown if the judge believes that disclosure of some or all of the evidence on which the certificate is based could undermine national security. The judge then provides to the named person a summary of the evidence, but not its sources or any other details that might compromise national security. If the judge determines that the certificate is reasonable, there is no appeal or opportunity for further judicial review. Held: o Ss. 7 doubly engaged (i) Liberty persons subject to security certificates face detention pending deportation
(ii) Security person's removal may be to a place where life/freedom threatened
(iii) No fundamental justice b/c NO fair hearing – judge acting w/ incomplete info “The principle of knowing the case to meet when liberty is in jeopardy has not merely been limited by the provision allowing undisclosed material to be presented; it has been effectively gutted." Not narrow enough under Ss.1 : To remedy the procedural shortcomings of the statutory scheme, the Court suggests that an amicus curiae (security-cleared special advocate) could be appointed to represent the named person during in camera proceedings. The Crown's failure to incorporate such a measure, or to otherwise correct the procedural deficiencies, leads to the conclusion that the violation of s. 7 could not be saved under s. 1 because the infringement did not minimally impair the right at stake.
o
(b) Full answer and defence R v Seaboyer [1991]
SC held that both Ss. 7 and 11(d) guaranteed to an accused “the right to present full answer and defence”. SC by a majority held that right was abridged by “rape-shield” provision in the CCd, which restricted right of a person charged with sexual assault to cross-examine the complainant about her past sexual activity.
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According to McLachlin J, for the maj, this provision would occasionally have the effect of excluding relevant evidence that was required to enable the accused to make full answer and defence.
R v Cook [1997]
The accused was convicted of assault, despite the fact that the Crown did NOT call the victim of the assault as a witness for the Crown. Accused argued that the Crown was under an obligation at CL to call the victim, since he was competent and available. Inability of accused to C-E accuser was a denial of accused’s right to make full answer & defence. L’Heureux-Dubé J, for the Court, rejected the argument, holding that the Crown had a discretion as to the witnesses it chose to call & the accused’s right to make full answer and defence was protected by his right to C-E those witness that the Crown did call (and upon whose evidence the jury had found the accused guilty). Argument that the accused would be unfairly surprised by a trial at which the victim did not testify was rejected on basis that accused’s pre-trial right to full disclosure of all relevant material in the possession of the Crown was a sufficient safeguard against surprise. SC acknowledged that there might be rare cases where the suppression of potentially exculpatory evidence by the Crown amounted to an abuse of process, BUT the onus of proving misconduct lay on the accused and had not been discharged in this case. (The case was not argued under Ss. 7 of the Charter, but L’Heureux-Dubé J said that her reasoning would “likely” be consistent with a Charter analysis.
(c) Pre-trial disclosure by the Crown R v Stinchcombe [1991]
Pre-trial disclosure by the Crown of ALL information relevant to the conduct of the defence is a constitutional obligation, entailed by the accused’s right to make full answer and defence (referring to Ss. 7, but NOT Ss. 11(d)) Obligation applies to statements obtained from witnesses that Crown does intend to call as witnesses, BUT ALSO to statements obtained from persons that the Crown does NOT intend to call as witnesses. Crown failed to disclose statements obtained from a person whom the Crown did NOT call as a witness. The person had in fact testified at the preliminary inquiry so that her existence, identity and general nature of her knowledge were all known to the defence, who could obviously have called her as a witness. Nevertheless, SC held that the defence’s right to make full answer and defence might have been impaired by the failure of Crown to produce to defence statements derived from Crown interviews of person. Disclosure of info under Stinchcombe MUST be timely, provided w/ enough time before trial to enable the defence to consider it properly. If information comes into the possession of the Crown close to the time of the trial, it MUST still be disclosed and the trial should be adjourned for enough time to enable defence to consider new evidence: R v Bjelland The obligation of disclosure does NOT cease with the trial, at least not if the accused is convicted. If information comes into the possession of the Crown after the trial, the Crown’s obligation is to disclose “any information in respect of which there is a reasonable possibility that it may assist the [accused] in prosecuting an appeal”: R v McNeil [2009]
Section 24(1) authorizes an “appropriate and just remedy” for a breach of the Charter.
For default in pre-trial disclosure by the Crown, the appropriate and just remedy would normally be an order for disclosure, coupled with an award of costs to the accused. If the default is that the Crown has made its disclosure (or some of it) too late (too close to the trial date), the appropriate remedy would normally be an adjournment of the trial to give the defence time to consider the tardily-produced evidence: R v Bjelland (2009) The exclusion of the tardily-produced evidence from the accused’s trial is NOT normally an appropriate remedy, because it impairs the truth-finding function of the trial, BUT in exceptional circs, the exclusion of the evidence would be an appropriate remedy: R v Bjelland (2009) If a failure of pre-trial disclosure by the Crown is NOT discovered until after the accused has been convicted, more radical remedies are called for. If the failure to disclose cases doubt on the reliability of the verdict or the fairness of the trial, a NEW trial would be the normal remedy: R v Taillefer [2003]
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If a failure to disclose evidence to the defence is a deliberate or negligent default by the prosecutor, this will also be a breach of professional responsibility, exposing the prosecutor to discipline from the provincial law society: Krieger v Law Society of Alta [2002]
(d) Pre-trial disclosure by TP R v O’Connor [1995]
SC considered whether an accused’s constitutional right to make full answer and defence included a right to obtain docs which were NOT in the crown’s possession, BUT were held by TPs. There were charges of rape and indecent assault brought against a Catholic Bishop who had been the principal of a native residential school at the time of the alleged offences. The complainants were four women, all former students who were employees of the school at the time. Accused sought an order requiring disclosure of the complainants’ counsellors’ records, medical records and school records, all of which were in the possession of TP. Because these records were not in the possession of the Crown, Stinchcombe imposed NO obligation on the Crown to disclose them, which the Crown would in any case be unable to do. As well, the fact that the records were not in the possession of the Crown meant that they were not being relied upon by the Crown, so that they did NOT form part of the accused’s “case to meet” and therefore might not be necessary for full answer and defence. The disclosure of the records would implicate constitutional rights besides those of the accused. The complainants, in common with other witnesses, had a right to a reasonable expectation of privacy in the confidential records of persons and institutions who had provided counselling and medical advice. Court also appreciated that there was a risk of a breach of equality rights: disclosure in sexual assault cases would bear disproportionately on women and could be premised on discriminatory stereotypes about how past sexual activity or psychological counselling might affect issues of consent and credibility. SC held unanimously that access to private records in possession of TP could be nec to an accused’s right to make full answer & defence. However, this did NOT give an accused person an automatic right of access to the records. Rather, the SC ruled that production MUST be governed by procedure which would strike proper balance btw full answer and defence on the one hand and the witness’s privacy and equality rights on the other. The Court in O’Connor divided 5:4 over how to achieve this balance. The majority view was as follows: (i) The defence MUST apply to the trial judge for a disclosure order and MUST establish on a balance of probabilities that the records are “likely relevant” to making full answer and defence. IF likely relevance is established, the records MUST be produced into court, BUT at this stage ONLY for the private inspection of the judge. (ii) The judge MUST inspect the records and determine whether a disclosure order should be made, ONLY after considering the following five factors: 1. the records’ importance for full answer and defence; 2. their “probative value”; 3. the nature and extent of privacy vested in them; 4. whether production would be premised on a discriminatory belief or bias; and 5. effect that production would have on witness’s dignity, privacy & security.
In this way, the majority of the Court sought to accommodate the competing values. O’Connor makes clear that right to make full answer and defence is NOT an absolute right, BUT one that MUST at times yield to other constitutional values.
After the dec’n in O’Connor, Parl’t enacted amendments to the CCd to regulate the disclosure of confidential records in sexual assault proceedings. These amendments followed the dissenting opinion of L’HeureuxDubé J more closely than the majority opinion, BUT the amendments were upheld in R v Mills [1999] (1) L’Heureux-Dubé J took the view that the records should not be produced in court for inspection on the SOLE basis of likely relevance. (2) She would have had the TJ balance the salutary and deleterious effects of production into court before deciding to examine the records. (3) With respect to the balance process, she would have added two additional factors to the five stipulated by the majority, namely: 1.
society’s interest in encouraging the reporting of sexual offences; and
2.
the integrity of the trial process.
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(4) If a TJ decided that the documents should be produced into court for inspection, she would have had the TJ then reconsider all seven factors before deciding whether to make the order for disclosure which would release the records to defence counsel. R v McClure [2001]
An accused, who was charged with sexual assault, obtained from the TJ an order for the production of the civil litigation file of his alleged victim (who had brought a civil action for damages against the accused). Purpose of production was to permit accused to review allegations that victim had made to his SOL about the accused’s conduct and to assess the motive of the victim to fabricate or exaggerate the allegations. SC held that the litigation file, b/c it contained communications between a SOL and his client for the purpose of providing legal advice or assistance, was covered by solicitor-client privilege. As a general rule, privilege-holder (the victim in this case) could refuse to produce it in court proceedings. SC held that, because of the fundamental importance of solicitor-client privilege, the privilege would yield to the accused’s Charter right to full answer and defence ONLY if the accused’s innocence was at stake, it, when the observance of the privilege (exclusion of the evidence) would probably lead to a wrongful conviction. SC established a 2-stage process for a TJ to determine when the INNOCENCE-AT-STAKE test was passed: 1. the TJ had to determine whether there was an evidentiary basis to conclude that the privileged records could raise a reasonable doubt as to guilt; 2. if so, the TJ is to inspect the records privately to determine if they were likely to raise a reasonable doubt as to guilt.
If both stages were passed, the TJ would order production of the records to the accused in the face of solicitor-client privilege. SC held that the first stage was NOT passed, because there was NO evidence to suggest that the disclosure of the file could raise a reasonable doubt as to the guilt of the accused. The TJ had erred by following the process stipulated in O’Connor, instead of the more stringent innocenceat-stake process.
R v Brown [2002]
Accused, who was charged w/ murder, sought production of another individual’s SOL’s file, b/c there was evidence that other individual had confessed to his SOL to the murder for which the accused was charged. Once again, the Court reversed the TJ’s order for disclosure. While the first stage of the McClure inquiry was satisfied, the second stage was NOT. Although the evidence of the file was likely to raise a reasonable doubt as to guilt, the breach of solicitorclient privilege was to be a remedy of last resort. The TJ had erred in not first investigating the admissibility of other evidence of the confession (which had allegedly been made to another person in addition to the solicitor). It was premature for the TJ to order production of privileged records as long as the accused had other means of raising a reasonable doubt.
(e) Preservation of evidence R v La [1997]
The evidence of a tape recording of a conversation between a police officer and the complainant, a 13-year old prostitute, was unavailable to the accused. The recorded conversation took place BEFORE the police had decided to investigate criminal charges against the accused and the conversation did NOT directly relate to the charges which were subsequently laid against the accused. Nevertheless, counsel for the accused argued, and the Court accepted, that the tape MIGHT have been useful for attacking the credibility of the complainant. The tape had NOT been transcribed and was inadvertently lost by the police officer who made the recording. SC held that the loss of tape & consequent failure to disclose to defence was NOT breach of Ss. 7. Sopinka J, for the maj, held that a breach of Ss. 7 would occur IF the Crown could NOT provide a satisfactory explanation for the loss, which would be the case IF the evidence had been deliberately destroyed or had been lost by “an unacceptable degree of negligent conduct”
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Here, the explanation was satisfactory in that it showed that the evidence had NOT been deliberately destroyed and, although the tape had simply been mislaid by the police, the SC accepted that there had been no unacceptable degree of negligence. However, where the Crown had provided a satisfactory explanation for the loss of relevant evidence, but the accused affirmatively established that the loss of the evidence would prejudice his ability to make full answer and defence and thus cause an unfair trial, there would be a breach of Ss. 7 Here, the SC held that the tape was NOT sufficiently critical to the case to establish prejudice to the accused’s right to make full answer and defence.
R v Carosella [1997]
The D, who was charged with sexual assault, had attempted to obtain the record of an interview of the complainant by a counsellor at a sexual assault crisis centre. TJ ordered the centre to produce its file on the complainant, BUT the file did NOT contain the notes of the interview with the complainant (or anything else of importance), because the centre had adopted a policy of shredding its counsellors’ notes in those cases which were likely to lead to a prosecution. Interview notes w/ complainant had been destroyed pursuant to policy before TJ ordered their production. Counsel for the defence argued that the accused had been denied his right to full answer and defence by this deliberate destruction of relevant evidence! A 5:4 majority of the SC agreed and ordered a stay of proceedings! Sopinka J, for the maj, held that since records had been deliberately destroyed, it was NOT nec for the accused to show that his right to make full answer & defence had been prejudiced by the loss of evidence. It was enough that the evidence “may affect the conduct of the defence”. The possibility that the notes would reveal some inconsistency between the account the complainant made to her counsellor and her testimony at trial was enough to meet this LOW threshold. The Court made no mention of the interests that could be impaired by the compelled production of the records of sexual assault crisis centres. Hogg criticizes this decision, because the Crown itself had not done anything wrong and the crisis centre was a private body to which the Charter did not apply, so it should be free to preserve or destroy its files as it chooses. He argues that the rules laid down in La (decided a few weeks after Carosella) seem to be fully satisfied in Carosella. He argues that after La, Carosella seems to be a case that is unlikely to be followed. Parl’t has now prohibited the disclosure to the accused in sexual-assault cases of confidential records of which the ONLY relevance is that they may disclose an inconsistent statement by the complainant or that they may relate to the credibility of the complainant.
(f) Statutory limits on pre-trial disclosure
After O’Connor and Carosella, Parl’t enacted amendments to the CCd that placed severe restrictions on the disclosure of confidential records in sexual assault cases. Statutory req’s purport to replace the procedure for the disclosure of TP records that was developed by the majority in O’Connor, a procedure which was perceived by Parl’t to give undue preference to the rights of the accused over the rights of complainants and witnesses. Legislation applies to ALL confidential records, including those in the Crown’s possession, with the exception of records that are created in the course of a police investigation. This eliminates the distinction drawn by the Court in O’Connor between records in Crown’s possession, which were always to be disclosed unless privileged, & records in possession of TP, which were ONLY to be disclosed if they met the O’Connor test. According to the CCd amendments, a confidential record will be produced for inspection by the court IF the defence can establish BOTH that: 1.
it is “Likely relevant”; and
2.
that its production is “necessary in the interests of justice”.
As to what is “likely relevant”, the legislation supplies a list of 11 reasons which will NOT be sufficient to establish likely relevance. One of these is that “the record may disclose a prior inconsistent statement of the complainant or witness”; another is that “the record may relate to the credibility of the complainant or witness”.
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As to “the interests of justice”, the leg’n supplies a list of 8 factors that are relevant to the interests of justice (Ss. 278.5(2)): a)
the extent to which the record is necessary for the accused to make a full answer and defence;
b)
the probative value of the record;
c)
the nature and extent of the reasonable expectation of privacy with respect to the record;
d)
whether production of the record is based on a discriminatory belief or bias;
e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; f)
society’s interest in encouraging the reporting of sexual offences;
g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and h)
the effect of the determination on the integrity of the trial process.
Once the TJ has determined that the records are likely relevant and that the interests of justice favour production, the judge will order them to be produced and will then inspect the records in the absence of the parties to determine whether, with reference to the eight factors listed above, it is in the interests to release some or all of them to the defence and whether they should be subject to editing or other conditions.
R v Mills [1999]
Parl’t had braced itself for the inevitable challenge to the amendments by including a long preamble which recites Parlt’s concerns In Mills, the SC upheld the amendments. The dec’n did NOT rely on Ss. 1 to uphold the law. Rather, the SC said that O’Connor (and presumably Stinchcombe) was “not necessarily the last word on the subject” and that “the law develops through a dialogue between courts and legislatures” SC noted that Parl’t had enacted the amendments ONLY after a long consultation process that included consideration of the constitutional standards set in O’Connor and that also included info as to how well the O’Connor regime was working. What the SC in O’Connor regarded as “preferable” was not a “rigid constitutional template” and “did not preclude Parl’t from coming to a different conclusion”. SC concluded that, although the 1997 amendments gave more weight to the complainants’ rights of privacy and equality than had the Court’s previous decisions, the amendments still gave sufficient weight to the accuseds’ rights to make full answer and defence; the amendments were therefore constitutional.
47.22 Fair administrative procedures
It is CLEAR that Ss. 7 goes FAR beyond natural justice, which is a requirement that administrative tribunals observe rules of procedural fairness. Ss 7 also includes a req of procedural fairness: Singh v Minister of Employment and Immigration [1985] This req attaches ONLY where a DM’er has power of decision over life, liberty or security of the person. CL rules of procedural fairness are basic tents of the legal system and they have evolved in response to the same values and objectives as Ss. 7 Eg, SC has held that a person claiming to be a refugee has a right to an oral hearing before the body with authority to determine the issue: Sing v Minr of Emplmt and Imm (1985) SC held that a decision to deport a refugee does not require an oral hearing, although Ss. 7 does require disclosure of the case for deportation and an opportunity to reply in writing: Suresh v Canada [2002] The CL rules of procedural fairness MUST, of course, yield to any inconsistent statutory provision, but where Ss. 7 applies, the rules of procedural fairness have constitutional status and will prevail over any inconsistent statutory provision: Singh (1985)
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*** Canada v PHS Community Services Society – McLachlin CJ - Unanimous
FACTS: Controlled Drug and Substances Act at issue o Claimants argued that sections of CDSA invalid b/c limit the claimants’ Ss. 7 Charter rights. In the alternative, claimants submitted that Ss. 7 rights have been violated by the Minister of Health’s decision NOT to exempt Insite from the CDSA. The court agreed with the alternative argument. The court found that the prohibition of possession in the CDSA engages the claimants’ Ss. 7 right to liberty since its breach can result in imprisonment. It also engages Insite clients’ Ss. 7 rights to life and security of the person by denying them access to “potentially lifesaving medical care.” HELD: Court held the continued operation of Insite, NA’s ONLY supervised injection site. o Dismissed Canada’s appeal and ordered the federal Minister of Health to grant Insite an exemption under Section 56 of the CDSA Ss. 7 Analysis o (i) The Court held that the CDSA does NOT violate the Charter. The Court found that Section 4(1) of CDSA, the prohibition on possession, infringed the liberty interests of Insite’s staff and the life, liberty and security of the person interests of Insite’s users, BUT that section 56 operated to render section 4(1) consistent with the principles of fundamental justice. The Minister is required to exercise his or her discretion under section 56 in a manner consistent w/ the Charter, which in the Court’s view requires the Minister to prevent the CDSA from applying in manner that offends the principles of fundamental justice. o (ii) Nevertheless, the Court found that the Minister’s refusal to renew/approve the exemption that expired on June 30, 2008 was contrary to Ss. 7. The resulting application of section 4(1) of the CDSA to Insite’s staff and users was arbitrary and grossly disproportionate, and therefore contravened the principles of fundamental justice. Court made an order of mandamus and required the Minister to grant an exemption to Insite under section 56 Court relied on Ministerial discretion contained in section 56 of the CDSA as an antidote to the deprivation caused by section 4(1). Court reasoned that section 56 acts as a “safety valve” that prevents CDSA from being applied in a manner that offends the principle of fundamental justice. Leaves the legislation potentially in breach of section 7. The constitutional principle of vagueness, which is a principle of fundamental justice, entitled individuals NOT to be deprived of life, liberty or security of person by laws that are vague OR unintelligible. Held that a simple declaration would be inadequate. The ONLY constitutional response to the request for the exemption is to grant it, and there was “nothing to be gained (and much to be risked) in sending the matter back” for reconsideration.
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CHAPTER55:EQUALITY
55.1 Distribution of powers
Position before 17 April 1985, when Ss. 15 of Charter came into force, dictated by doctrine of parliamentary sovereignty: Parl’t or Leg could discriminate as pleased in enacting otherwise competent legislation. The authority to enact legislation which promotes egalitarian values, such as HR legislation, is distributed btw the federal Parl’t & provincial Legislatures according to which has jurisdiction over the subject matter of the leg’n, eg employment, accommodation, etc. MOST of the field is provincial under property and civil rights in the province (Ss. 92(13); however, there is little doubt that the federal Parl’t could if it chose exercise its criminal law power (Ss. 91(27) to outlaw discriminatory practices generally.
55.2 Canadian Bill of Rights
Section 1(b) of the Bill, guarantees “equality before the law”. Applies ONLY to the federal Parl’t and was, on 17 April 1985, superseded by Ss. 15 Hogg discusses cases such as Drybones (1969) (Indian intoxicated on & off reserves); Lavell (1973); Canard (1975) (succession of property of Indians); Burnshine (1974) (young offenders sentences longer than adults); Bliss (1975) (pregnancy and denial of benefits); MacKay (1980) (defence forces) Concludes: W/ Ss. 15 of Charter, Ss. 1(b) of CBoR, although in force, rendered irrelevant (1) The language of valid federal objective has been banished, and replaced by new doctrine that is LESS deferential to the legislative will
55.3 American Bill of Rights
th
14 amendment provides NO state shall deny to any person w/n jurisdiction “equal protection of the laws”. th Has been held to be incorporated in the due process clause of 5 amendment – applying to federal Congress NO Ss. 1 equivalent under which reasonable limits are authorized Doctrine of “reasonable classification” has been developed which saves legislative classifications that are a reasonable means of achieving a legitimate legislative purpose (1) 2 tier standard of review: (i) Includes laws that classify by race or national origin – “suspect” classifications – also included laws that abridge a “fundamental” right Strict scrutiny standard of review Presumed that such laws are NOT a reasonable means of securing a legitimate legislative purpose (ii) Includes all legislative classifications that are NOT “suspect” and that do NOT affect fundamental rights Minimal scrutiny standard of review Sufficient if rational basis (2) ‘Sex’ used to be lower tier NOW upper tier scrutiny Craig v Brown (1976) Higher male intoxication and accidents therefore ban 18-21 alcohol
55.4 Section 15 of the Charter
Section 15 of the Charter provides: Equality before and under law and equal protection and benefit of law 15. (1) Every ind is equal before and under the law and has the right to equal protection and equal benefit of the law w/o discrimination and, in particular, w/o discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental / physical disability. Affirmative action programs (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Quick summary: “individual” Also guarantees Equality is expressed in 4 different ways.
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against “discrimination” that are named or listed grounds of discrimination “In particular” indicates that the named grounds are NOT exhaustive. Ss 32(2) delayed coming into force of Ss. 15 for 3 years after rest of the Charter (so came into force on 17 April 1985) – purpose – to allow Fed and Prov gov’ts to review laws for conformity with Ss. 15
55.5 Application of Ss. 15 (a) Individual
Probably excludes a corporation
(b) “Law” in Ss. 15
The “burden”, like all other Charter rights, is imposed by Ss. 32 on Parl’t and gov’t of Cdn & of each province Does the reference to “law” in the various formulations of the equality rights in Ss. 15 have the effect of narrowing the application of Ss. 15 so as to exclude gov’t action that is not law?
R v S(s) [1990]
Federal Young Offenders Act authorized AG of each province to establish programme of “alternative measures” to divert young offenders away from proceedings in courts. NOT introduced ONLY in Ontario A young person accused of a crime in Ontario argued that failure of the AG to establish a programme in Ontario was a violation of the accused’s equality rights under Ss. 15 SC rejected this argument on ground that Ss. 15 applied ONLY to “the law”. Ss 15 did NOT apply to an exercise of discretion conferred by law, but ONLY to the enabling law itself. Thus, AG of Ontario’s dec’n NOT to establish a diversion programme could NOT be impeached under Ss. 15. So held also in companion case, R v S(G) [1990]
Hogg argues this is wrong.
The better view is that Parl’t is unable to delegate a power the Parl’t does not possess.
McKinney v U of Guelph [1990]
Restrictions on power of Parl’t (or Leg) MUST apply to ALL bodies that draw powers from Parl’t (or Leg)
Douglas/Kwantlen Faculty Assn v Douglas College [1990]
6 months after S cases, majority of the SC asserted that req of “law” in Ss. 15 IS satisfied by conduct taken under the authority of law and a majority held that a collective agreement is “law” within Ss. 15 No reference was made to the contrary rulings in the two S cases.
LIKELY that reference to “law” in Ss. 15 does NOT have the effect of excluding anything from the application of Ss. 15. (c) Private action
Section 15 does NOT apply to private acts of discrimination. However, in ALL Canadian jurisdictions, HR Codes have been enacted that prohibit private acts of discrimination in employment, accommodation and the provision of services.
Winnipeg School Division No 1 v Craton [1985]
SC has held that a Human Rights Code takes precedence over other statutes The Human Rights Codes, as statutes, are THEMSELVES subject to the Charter.
Blainey v Ontario Hockey Association (1986) (CA)
A girl, who had been excluded by the Ontario Hockey Association from a boy’s hockey team, challenged a provision of the Ontario Human Rights Code that permitted single-sex sports teams. (1) (Code generally prohibited discrimination by sex, BUT made exception for single-sex sports teams.)
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Maj Ont CA held that exception breached Ss. 15, b/c denied to P the benefit of the HRC by reason of her sex. The effect of nullifying the exception was to make the general prohibition of discrimination applicable to sports teams, which gave the P a remedy under the HRC. Charter did NOT apply directly to the action of the Ontario Hockey Association b/c it was a private org. But by extending the scope of the HRC to action that the Code left unregulated, the Charter DID have an indirect impact on private action.
McKinney v University of Guelph [1990]
A university professor who had reached the age of 65 challenged Uni’s mandatory retirement Charter did NOT apply to Uni, b/c independent from gov’t, the Uni was held to be a private body. However, the Charter DID apply to the Ontario HRC, which indirectly permitted mandatory retirement: the Code’s prohibition of discrimination by age in employment applied ONLY up to age 65. SC held that the 65-age limit was a breach of Ss. 15 However, the SC went on to hold that the limit was justified by Ss. 1 Thus, limit upheld & Charter did NOT have effect of extending code to cover mandatory retirement at 65.
55.6 Equality (a) Four equalities of Ss 15
(i) Equal before the law (ii) Equal under the law (1) Were intended to repeal a suggestion by Ritchie J in Lavell that JR on equality grounds did NOT extend to the substance of the law BUT only to the way in which it was administered (iii) Equal protection of the law th (1) VERY similar to “equal protection of the laws” which is used in 14 amendment of US Constitution (iv) Equal benefit of the law (1) This was intended to repeal a suggestion by Ritchie J in Bliss that the legislative provision of “benefits” was NOT subject to equality standards
(b) Absolute Equality
Every statute or REG employs classifications of one kind or another for imposition of burdens OR the grant of benefits Laws NEVER provide the same treatment for everyone
(c) Aristotle’s definition
“Justice considers that persons who are equal should have assigned to them equal things” “there is NO inequality when unequals are treated in proportion to the inequality existing between them” Ie. a person who has committed a crime deserves to be punished; innocent does NOT; serious crime committed deserves to be punished MORE severely than minor offence ISSUE that Aristotle’s idea of equality is TOO high a level of granularity to be useful: (1) NO criteria to determine whether one person is “like” another; or (2) Who should be compared to whom; and (3) No criteria to assess the appropriateness of diff legislative treatment to those who are NOT alike THUS commentators describe “equality” as an “empty idea” P. Westen st (1) Because CANNOT be applied w/o 1 working out the criteria of likeness and like treatment, and the idea of equality CANNOT by itself support those criteria
(d) Similarly situated R v Ertel (1987)
A denial of equality was made out IF it could be shown that the law accorded the complainant worse treatment than others who were “similarly situated”
***Andrews v Law Society of BC (1989)
McIntyre J –test “seriously deficient”, & that could be used to justify laws discriminating against Jews/blacks Concluded: test should NOT be used, at least “as a fixed rule or formula for the res’n of equality questions”
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HOGG argues exaggerated b/c in that equality is an inescapably “comparative concept”
Person is treated unequally ONLY if that person is treated worse than others, and others MUST surely be those who are similarly situated to the complainant The test is deficient in the sense that it provides TOO little guidance to a reviewing court
(e) Formal and substantive equality
MOST common criticism of similarly-situated definition of equality (and Aristotle’s) is not that it provides too little guidance BUT that it can mask discrimination that occurs indirectly (1) Ie. law that prohibits persons under 6 feet places indirect effect on women Substantive equality REQUIRES that the identification of persons who are similarly situated MUST take account of contextual factors related to race, sex and disability that may make a person’s situation sufficiently different to require different treatment in order to be treated fairly
(f) Reasonable classification
American courts have found the criteria of equality in “doctrine of reasonable classification” IF a law pursues a legitimate purpose, AND it employ classifications that are reasonably related to accomplishing purpose, THERE IS NO violation of equal protection (1) Approach concentrates on purpose of the law (2) Tests likeness by reference to THAT purpose Operates at a VERY high level of granularity – views WILL differ as to HOW the purpose of a law is to be ascertained and stated (1) SOME measure of certainty attained by US courts in that utilize 2 tier system of review – “strict scrutiny” and “minimal scrutiny”
(g) Valid federal objective
BEFORE Charter – Canadian courts applied the guarantee of equality in the CBoR Dominant approach was to uphold ANY distinction IF the statute pursued a “valid federal objective” THIS resulted in HIGH degree of judicial deference to Court’s review of choices made by Parl’t Even MORE deferential than American standard of minimal scrutiny Legislative history of Ss. 15 makes CLEAR that it was NOT to be given the same minimal effect as CBoR
(h) Early applications of s 15
Until ***Andrews case was decided by SC in 1989, Courts followed BOTH approaches from the past (NOT applying it deferentially so as to rob it of serious force, as in the CBoR decisions, BUT on the other hand, NOT reviewing every distinction in the statute book – ie too wide an application), ie, they assumed that every legislative distinction was a proper subject for equality review, but upheld every distinction. This resulted in a lot of challenges under Ss. 15 (many unsuccessful), so SC started to develop rules to control the floodgates opened by Ss. 15, as set out below.
55.7 Discrimination
What does discrimination in s 15 mean? SC struggled w/ answer to this q’s, BUT now seems to have settled into following def’n of discrimination: (1) The challenged law imposes (directly or indirectly) on the claimant a disadvantage (in the form of a burden or withheld benefit) in comparison to other comparable persons; (2) The disadvantage is based on a ground listed in or analogous to a ground listed in Ss. 15; and (3) The disadvantage also constitutes an impairment of the human dignity of the claimant [(Law req) or now referred to as “discrimination” (the perpetuation of disadvantage or stereotyping) (Kapp requirement, which is substantially the same as the human dignity requirement)].
Claimant who proves 3 elements entitled to finding of discrimination that challenged law in breach of Ss. 15. The burden THEN shifts to gov’t to justify the discriminatory law under Ss. 1 Ss 1 justification difficult, b/c finding of an impairment of human dignity will involve much of the same inquiry as that required by Ss. 1. However, it is STILL possible.
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55.8 Listed or analogous grounds (a) Requirement of a listed or analogous ground Hogg’s view was that every distinction drawn in a statute counted as discrimination in breach of Ss. 15 The other position taken by McLachlin J, in ***Andrews at CoA in B.C. held that the ONLY legislative distinctions that would amount to discrimination were those that were “unreasonable or unfair”.
This theory stipulated that Ss. 15 contained its own implicit requirement of justification
BOTH of the competing theories of Ss. 15 shared the assumption that ALL legislative distinctions were OPEN to review under Ss. 15 – assumption that opened the floodgates to equality challenged. What was needed was some threshold barrier that would REDUCE the flow of cases to those where legislative distinctions were presumptively suspect. *** Andrews v Law Society of BC [1989]
First Ss. 15 case to reach SC Challenge to statutory REQ of province of BC that members of the bar had to be citizens of Canada. SC held unanimously that this REQ was contrary to Ss. 15 and, by a majority that it was not saved by Ss. 1 McIntyre J wrote for the unanimous Court on the interpretation of Ss. 15 (although he ended up dissenting, b/c he thought the law should be upheld under Ss. 1). McIntyre J discussed and rejected the theories previously advanced by Hogg (that Ss. 15 condemned all legislative classifications) and by McLachlin J (that Ss. 15 condemned unreasonable or unfair classifications). He held that there was a “middle ground” between the two positions, which was to interpret “discrimination” in Ss. 15 as applying to ONLY the grounds listed in Ss. 15 and “analogous” grounds. This “enumerated and analogous grounds approach”, he said, “MOST closely accords with the purposes of Ss. 15” and “leaves questions of justification to Ss. 1” SC went on to hold that citizenship qualified as an analogous ground of discrimination. After Andrews, it was CLEAR that Ss. 15 was a prohibition of discrimination and that discrimination involved the imposition of a disadvantage on an individual by reason of the individual’s possession of a characteristic that was either listed in Ss. 15 OR was analogous to those listed in Ss. 15
Law v Canada [1999]
SC unanimously reaffirmed the restriction of Ss. 15 to “listed and analogous grounds”. Court added new restriction (short-lived), namely discrimination involved impairment of “human dignity”.
(b) Addition of analogous grounds
Listed grounds are “race, national / ethnic origin, colour, religion, sex, age or mental or physical disability”.
Corbiere v Canada [1999] per McLachlin and Bastarache JJ
SC has held that an analogous ground is one based on “a personal characteristic that is immutable or changeable ONLY at unacceptable cost to personal identity” st
Citizenship – 1 analogous ground recognized
In Andrews, SC unanimously held analogous, BUT ONLY La Forest J attempted to articulate a reason. He said citizenship was personal characteristic that “typically NOT within control of IND &, thus, is immutable” This ruling was affirmed in Lavoie v Canada [2002] (re validity of statutory hiring preference for citizens in federal public service – majority upheld preference, BUT all members of Court agreed citizenship was an analogous ground).
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nd
Marital status – 2 analogous ground recognized
Recognition started in Miron v Trudel *1995+ which concerned the statutory provision of accident benefits to a “spouse”, a term defined as a person legally married to the victim. The claimant CL spouse succeeded in striking down the requirement of legal marriage, ONLY 4 JJ actually held that marital status was an analogous ground. 4 JJ said it was not and the 5th held it did not matter.
Nova Scotia v Walsh [2002]
SC unanimously held that marital status was an analogous ground. HOWEVER, majority held that the matrimonial property regime of NS, which was restricted to persons who were legally married, did NOT breach Ss. 15, because it did not impair the human dignity of the CL spouses who were excluded by reason of their marital status. Note that each (citizenship and marital status) ground is a status that can often be chosen by the individual, although that choice is sometimes blocked by legal requirements or by the contrary wish of another person. The element of choice has been important in persuading the Court to find ways to uphold legislative distinctions based on citizenship (Lavoie) and marital status (NS v Walsh). rd
Sexual orientation – 3 analogous ground recognized Egan v Canada [1995]
8 of 9 JJ decided that sexual orientation was an analogous ground. La Forest J (for 3 others) described sexual orientation as “a deeply personal characteristic that is either unchangeable or changeable ONLY at unacceptable personal cost” For complicated reasons, the claimants, a same-sex couple seeking a spousal allowance under the federal Old Age Security program, did NOT actually succeed.
Vriend v Alberta [1998]
SC held AB’s HR code violated Ss. 15 by failing to include sexual orientation as prohibited ground of discrimination.
M v H [1999], SC held that Ontario’s family law leg’n violated Ss. 15 by excluding same-sex couples from spousal support obligations. Little Sisters Book and Art Emporium v Canada [2000], SC held that the practices of customs officials in obstructing the importation of books by a bookstore catering to gay and lesbian communities was a breach of Ss. 15 The Cs of A, BC and Ont and other provincial courts held that the opposite-sex requirement for marriage was contrary to Ss. 15, thereby legalizing same-sex marriage in several provinces: EGALE v Can (2003) (BCCA); Halpern v Can (2003) (Ont CA). These decisions helped the SC to decide that the federal power over “marriage” extended to same sex marriage, a ruling which was followed by leg’n enacting a new national definition of marriage that no longer requires the couple to be of opposite sex: Re Same-Sex Marriage [2004]; Civil Marriage Act, SC 2005, c 33 These 3 grounds are, so far, the only ones that have been recognized (although language (or at least native language (may be a 4th analogous ground: Gosselin v Que [2005] 1 SCR 238 at [12] (obiter dictum raising possibility)). The following grounds have been rejected as analogous grounds: 1. 2. 3. 4.
Place of residence, except in the special case of residence on an Indian reserve: Corbiere v Can (1999); Occupation, so that a law denying collective bargaining rights to police officers CANNOT be challenged under Ss. 15: Delisle v Canada [1999] Substance orientation, so that a law prohibiting the use of marihuana cannot be challenged under Ss. 15: R v Malmo-Levine [2003] Temporal distinctions (change in law that creates a distinction between those who were governed by the law before the change and those governed by the new law): Can v Hislop [2007]
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5.
The existence of a claim against gov’t, so that privileges for the Crown and other public authorities in litigation cannot be challenged under Ss. 15: Rudolf Wolff & Co v Can [1990] 1 SCR 695
However, remedies have been created by the Court on other bases, eg:
Voting rights in Ss. 3 so that malapportioned voting districts, which give rural votes more weight than urban votes, have been held to be unconstitutional: Re Prov Electoral Boundaries (Sask) [1991] Freedom of association in Ss. 2(d), so that the exclusion of agricultural workers from Ontario’s labour relations leg’n has been held to be unconstitutional (Delisle v Can (1999))
Criticism: when the Court imports equality values into other Charter rights, it leaves out the restriction to listed and analogous grounds and the requirement of impairment of human dignity or discrimination.
55.9 Human dignity (a) Ambiguity in ***Andrews
After Andrews, in Miron & Egans decisions, the SC splintered into 3 camps as to the interpretation of Ss. 15. This fragmentation lasted only until 1999, when Law v Canada was decided.
(b) Impairment of human dignity Law v Canada [1999]
SC issued unanimous opinion, Iacobucci J that provided a NEW interpretation of Ss. 15. The new consensus: (1) Ss 15 applied ONLY to legislative distinctions based on a listed or analogous ground; (2) Discrimination in Ss. 15 involved an element ADDITIONAL to a distinction based on a listed or analogous ground; (3) That additional element was an impairment of “human dignity”
Law v Canada
The new requirement of an impairment of human dignity defeated the claimant Under the federal Canada Pension Plan, survivors’ benefits were payable to the spouses of deceased contributors, UNLESS the spouse was under the age of 35, in which case the spouse was NOT entitled. Claimant was survivor of deceased contributor, BUT, b/c she was under 35, ineligible for a survivor’s benefit. The law withheld a benefit from her on the ground of her age, age being a listed ground under Ss. 15 On the simple interpretation of Andrews, this would have been enough to constitute discrimination under Ss. 15, moving the inquiry onto Ss. 1 BUT, by adding the new REQ of human dignity to Ss. 15, Court imposed on claimant the burden of establishing that the agebased distinction was an impairment of her human dignity. She was unable to discharge that burden and so her equality claim was denied w/o recourse to Ss. 1 In the context of the CPP’s purpose, the SC recognized the reality that young widows and widowers would have less difficulty than older persons in finding and maintaining employment after the death of a spouse and would, in the long term, be able to replace the lost income of the deceased spouse. Iacobucci J did NOT define “human dignity”, BUT he did suggest 4 “contextual factors” (not exhaustive): 1.
The existence of “pre-existing disadvantage, stereotyping, prejudice or vulnerability”;
2.
The correspondence btw the distinction and the claimant’s characteristics or circumstances;
3.
The existence of ameliorative purposes or effects on other groups; and
4.
The nature of the interest affected.
(c) The Factor of Correspondence In Law, it was the 2nd (“correspondence”) factor that was important.
Age qualification for CPP survivor benefits corresponded to actual characteristics & circumstances of youthful surviving spouses, who could more readily find / maintain employment than older spouses.
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SC described correspondence factor as: “Correspondence, or lack thereof, between the ground, or grounds, on which the claim is based and the actual need, capacity, or circumstances of the claimant or others”
Gosselin v Quebec [2002]
SC upheld a workfare program that provided low welfare benefits for persons under 30, UNLESS they attended training programs, in which case standard benefits were payable. According to the majority, the age-based requirement corresponded to the increased capability of young persons to benefit from training programs. According to the minority, the imposition of hardship on young persons did not respect them as full persons. The claimant, who had been unable to access the training programs and had been forced to subsist on the low benefits, was unable to establish an impairment of her human dignity and lost her case.
Nova Scotia v Walsh [2002]
Exclusion of CL spouses from NS’s community property regime was held by a divided SC to correspond to real differences btw common law relationships and legal marriages.
Canadian Foundation for Children, Youth and the Law v Canada [2004]
CCd’s permission for parents and teachers to use reasonable corrective force against children was held by a divided SC to correspond to the needs of children.
Nova Scotia v Martin [2003]
SC held unanimously that NS’s provision of short-term remedial programs, INSTEAD of full workers’ compensation benefits, for “chronic pain” did NOT correspond to the needs of injured workers who suffered from that condition.
Hogg’s arguments re correspondence factor:
It seems to come down to an assessment by the Court of the legitimacy of the statutory purpose and the reasonableness of using a listed or analogous ground to accomplish that purpose. If that is right, the correspondence factor leaves Ss. 1 very little work to do.
After 1999, every case followed the Law analysis UNTIL R v Kapp [2008], when the SC unexpectedly changed its mind and retracted REQ of impairment of human dignity, replacing it w/ very similar requirement of “discrimination”. (d) Discrimination w/o human dignity *** R v Kapp [2008]
McLachlin CJ and Abella J, for a Court unanimous on this point, revisited the issue of human dignity. They did NOT doubt that “human dignity is an essential value underlying the Ss. 15 equality guarantee”, BUT they acknowledged that “as a legal test” human dignity was “confusing and difficult to apply” and was “an additional burden on equality claimants, rather than the philosophical enhancement it was intended to be”. (1) Hogg argues the SC should have removed any additional requirement on claimants under Ss. 15 so as to leave the work to Ss. 1 (burden on gov’t). However, the Kapp opinion assumes that there is STILL an element of Ss. 15 in addition to a disadvantage imposed on a listed and analogous ground. Element is no longer called “human dignity” – now called “discrimination” – BUT it is identified by the same 4 contextual factors that were formerly used to identify an impairment of human dignity… Factors one (pre-existing disadvantage) and four (nature of interest affected) and possibly three (ameliorative purpose) went to “perpetuation of disadvantage and prejudice”. Fact two (correspondence), which has normally been the decisive one, went to “stereotyping”. The 4 factors “should NOT be read literally as if they were legislative dispositions, BUT as a way of focusing on the central concern of Ss. 15 identified in Andrews - combating discrimination, defined in terms of perpetuating disadvantage and stereotyping”. After Kapp, it is STILL necessary for an equality claimant to establish something in addition to disadvantage based on a listed or analogous ground.
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That additional element (“discrimination”) is NO longer an impairment of human dignity; it is now the perpetuation of disadvantage or stereotyping. The Kapp case was an equality challenge to a fishing licence that gave exclusive rights to aboriginal fishers and the licence was upheld under the affirmative-action clause of Ss. 15(2) NO analysis under Ss. 15(1) was called for and none was attempted. Hogg points out that it was NOT an ideal context for the development of new Ss. 15(1) doctrine.
Ermineskin Indian Band and Nation v Canada [2009]
Four Indian bands had surrendered their interests in the oil and gas under their reserves to the federal Crown so that the Crown could make arrangements with TP to exploit the resources. This was done and the Crown received and held the oil and gas royalties on behalf of the bands. Royalties were paid into the consolidated revenue fund, where separate accounts were maintained for each band and each account was regularly credited with interest at a floating rate that was calculated by reference to the average rate for longterm gov’t bonds over the period for which interest was paid. The bands sued the gov’t for breach of fiduciary duty, claiming that the return on their money would have been HIGHER if the gov’t had invested the money in a diversified portfolio of investments. SC dismissed claim on basis that gov’t was precluded by statute from external investment of bands’ money. Indian Act required Indian money to be paid into the consolidated revenue fund and other statutory provisions prohibited external investment of money held in the consolidated revue fund. The bands argued that, IF the effect of the Indian Act was to preclude the external investment of the bands’ money (which is what the Court decided), THEN the applicable provisions of the Indian Act were unconstitutional for breach of Ss. 15 of the Charter. According to the bands, the Act deprived Indians, a group distinguished by race, of the rights that were available to nonIndians whose property was held in trust by the Crown. Rothstein J, for the Court, was prepared to assume that the Indian Act imposed a disadvantage on the bands and that the disadvantage was based on the listed ground of race However, confirmed Kapp ruling, that it was NOT enough for an equality claimant to show a disadvantage based on a listed or analogous ground. The equality claimant ALSO had to establish that the challenged law was “discriminatory”, which involved establishing that law “perpetuates prejudice or stereotyping” Rothstein J held that the Indian Act REQ to keep the bands’ funds in the consolidated revenue fund, as opposed to investing them, involved less control over the funds by the Crown, greater liquidity for the bands and no risk of loss to the bands. Features of statutory regime “do not draw a distinction that perpetuates disadvantage through prejudice or stereotyping”. This defeated the bands’ equality claim without the need to go through a Ss. 1 analysis. There was NO reference to 4 contextual factors.
See also Alta v Hutterian Brethren of Wilson Colony [2009] where the requirement of photo on driving licence was held NOT discriminatory; no reference to contextual factors).
55.10 Disadvantage (a) Selection of comparator group
In ***Andrews, McIntyre J said that, in order for a legislative distinction to amount to discrimination against an individual or group, the distinction MUST be one “which has the effect of imposing burdens, obligations or disadvantages on such individual or group NOT imposed on others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society” The presence of disadvantage (OR unequal treatment) requires a comparison between the legal position of the claimant and that of other people to whom the claimant may legitimately invite comparison.
This involves 2 inquiries: 1.
Whether the group to which the claimant compares him/herself is the appropriate comparator group;
2.
IF SO, whether the distinction that the law draws between the claimant and the comparator group is disadvantageous to the claimant.
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Hodge v Canada [2004] (pre-Kapp)
The claimant applied for a survivor’s benefit under the CPP. The benefit was payable to a person who was the “spouse” of a CPP contributor at the time of the contributor’s death. “Spouse” included not only persons legally married, BUT also common law partners. Here, claimant had been the common law wife of a deceased CPP contributor, BUT she had left him shortly before his death. She was denied the benefit because she was no longer his spouse at the time of his death. She argued that the law discriminated on the ground of marital status, which is analogous ground under Ss. 15. Argued, as a separated CL spouse, she shared all relevant characteristics with a group that was entitled to the benefit, namely, separated married spouses, except for the personal characteristic of marital status. SC held that she had selected the wrong comparator group. The correct comparator was NOT married spouses living apart at the time of the contributor’s death (as she argued), BUT former spouses. ONLY a person who was a spouse at the time of death was entitled to the benefit. By terminating cohabitation (an essential element of a CL marriage), she had brought the CL marriage to an end. It was true that the termination of cohabitation would not have brought a legal marriage to an end, but the appropriate comparison was with married persons whose marriage had been brought to an end by divorce. They too were denied survivor benefits. All former spouses, whether the prior marriage was legal or common law, were treated equally. The claimant had therefore suffered no disadvantage on account of her marital status.
Auton v BC [2004]
A claim of discrimination was made by autistic children and their parents, who complained that the province did NOT fund the “applied behavioural therapy” that was the most effective treatment for autism. The province’s statutory health plan provided FULL funding for ALL medically necessary services provided by physicians. Some medically necessary services that were provided by persons other than physicians were also funded, but not the autism therapy. Both the TJ and the CA held that the province was in breach of Ss. 15, because it funded some medically necessary therapies, BUT did not fund the equally necessary autism therapy. The SC reversed. McLachlin CJ, for the Court, held that the error in the lower courts was in the selection of the comparator group. It was wrong to compare the autism claimants with the recipients of fully funded therapies, because this ignored the fact that the autism therapy had only recently become recognized as medically necessary. Funding of new therapies “may be legitimately denied or delayed because of uncertainty about a program and administrative difficulties related to its recognition and implementation”. Because the claimants had adduced no evidence that the province was funding “other comparable, novel therapies”, they could not show disadvantage or unequal treatment Also held that benefit claimed “is not a benefit provided by law”, b/c statutory scheme did NOT purport to provide comprehensive funding for even medically necessary services if they were not provided by physicians. This is somewhat difficult to understand seeing as the claimants were arguing the law was under-inclusive.
COMPARED WITH - Eldridge v BC (1997) – where SC held that the failure of BC’s statutory health care plan to provide publiclyfunded sign-language interpretation to deaf persons seeking medical services (an example of indirect discrimination). Eldridge was distinguished in Auton:
The petitioners rely on Eldridge in arguing for equal provision of medical benefits. In Eldridge, this Court held that the Province was obliged to provide translators to the deaf so that they could have equal access to core benefits accorded to everyone under the British Columbia medicare scheme. The decision proceeded on the basis that the law provided the benefits at issue — physician-delivered consultation and maternity care. However, by failing to provide translation services for the deaf, the Province effectively denied to one group of disabled people the benefit it had granted by law. Eldridge was concerned with unequal access to a benefit that the law conferred and with applying a benefit-granting law in a non-discriminatory fashion. By contrast, this case concerned w/ access to benefit that the law has not conferred. For this reason, Eldridge does not assist the petitioners.
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cf again Nova Scotia v Martin [2003]
SC held that NS’s statutory workers’ compensation scheme violated Ss. 15 for providing only short- term benefits to sufferers from work-related “chronic pain”. Court acknowledged that chronic pain was unlike other work-related injuries in that it had no physical manifestations and there was no accepted method of diagnosis OR treatment. IF the Court had defined the comparator group with the same specificity that it did in Auton, the chronic-pain claimant in Martin would have had to find another group of persons suffering from work-related injuries that like chronic pain had no physical manifestations and no accepted method of diagnosis or treatment. That would have defeated the claim! BUT instead the SC brushed aside the problems of fully funding chronic pain cases and held that the comparator group is “the group of workers subject to the Act who do not have chronic pain and are eligible for compensation for their employmentrelated injuries”. That def’n of the comparator group ensured that the claim of unequal treatment on the basis of the personal characteristic of physical disability was established.
These cases demonstrate that the definition of the comparator group is critical to the outcome of Ss 15 cases; (indeed, this is acknowledged in Auton at [51]).
In choosing between the competing comparisons, a court works w/ little guidance, although it may be assisted by its sense of the purpose of the statutory scheme. Perhaps Auton & Martin could be distinguished by REF to different purposes of the statutory schemes. In Auton, the health care plan did NOT purport to be comprehensive in its funding of even medically necessary services if they were not provided by physicians. In Martin, the workers’ compensation scheme DID purport to provide comprehensive coverage for all work-related injuries (for which the tort action was barred). In a scheme that is supposed to be comprehensive, it is natural to make the comparison btw those who are denied benefits and those who are granted benefits. The comparison is less persuasive (and the consequences more costly) where the scheme is not comprehensive and the claimant group is only one of a number of groups from whom benefits are withheld.
(b) Requirement of disadvantage Thibauldeau v Canada [1995] (pre-Law (1999))
Claimant was unable to establish she had suffered a disadvantage by reason of her marital status. C was divorced woman who had custody of the children of the marriage and who received child-support payments from former husband. She objected to a provision of the Income Tax Act that required her to pay income tax on the support payments that she received from her ex- spouse. Argued that tax provision discriminated against separated custodial parents, because in an intact family the income tax on money spent on child support would be paid by the spouse who earned the income. Maj SC rejected the argument. SC pointed out that the inclusion requirement on the recipient spouse was matched by a deduction for the payor spouse. Since the payor spouse was usually in a higher tax bracket than the recipient spouse, the tax saved by the deduction would normally exceed the tax incurred by the inclusion. This resulted in a reduction of tax for the majority of separated couples – a reduction that cost the treasury over $300 million/year. While it was the payor who received the benefit of the deduction and the recipient who bore the burden of the tax, the family law system required that the tax consequences be taken into account in fixing the amount of child support. Therefore, in fixing the amount, the payor’s enhanced ability to pay should be recognized and the amount of child support should be grossed-up to fully compensate the recipient for her additional tax liability. Here, the family court that made the support order had taken her additional tax liability into account, but it appeared that the liability had been underestimated and the gross-up for tax was insufficient. However, the maj held that this deficiency should be remedied by a review of the support order by the family court. Although some separated custodial parents did not benefit from the deduction- inclusion system, as a group, separated custodial parents did benefit. Thus, Income Tax Act did NOT discriminate against them and there was no breach of Ss. 15 of the Charter.
Eaton v Brant County Board of Education [1997]
The Ontario Special Education Tribunal was a body empowered by Ontario’s Education Act to make decisions about the placement of “exceptional pupils”, a term that included those pupils who by virtue of mental or physical disability required placement in a special education programme.
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Here, the Tribunal had determined that a 12-yr-old child with cerebral palsy, who had for 3 years been educated in a regular classroom, should be placed in a special classroom. The child’s parents took the view, which was accepted by the Ont CA, that the statutory power to place exceptional pupils in a separate classroom without parental consent was a violation of equality rights. The SC held unanimously that there was no breach of Ss. 15 The distinction drawn by the Education Act between “exceptional pupils” and other pupils was based on mental or physical disability, which was a listed Ss. 15 ground. BUT purpose of the distinction was to identify children with special educational needs and then to design special education programmes to meet those special needs. Although parents wanted their child’s education to continue in regular classroom setting, Tribunal had found that evidence showed that segregated setting was in best interests of child. Equality right was that of the child, NOT parents & issue had to be resolved “from the child’s POV as opposed to that of adults in their life” SC concluded that, given the Tribunal’s findings, placement of child in a segregated setting could not be characterized as imposition of disadvantage on child. Therefore, there was no discrimination under Ss. 15
(c) Objective and subjective disadvantage Egan v Canada [1995]
A same-sex couple challenged the spouse’s allowance that was payable under the federal Old Age Security Act to the “spouse” of a pensioner. Term spouse included persons in CL relationships, BUT only if they were “of the opposite sex”. The awkward element of the facts, however, was that in BC, where the claimants lived, the combined effect of the provincial social assistance entitlements and the Old Age Security pension left the claimants better off as unmarried individuals than they would be if they were recognized as spouses under the Old Age Security Act. SC denied claim to spousal status by 5:4 majority for complicated reasons that don’t need to be explained. But all 9 JJ accepted the proposition that the denial of the federal spousal allowance was a disadvantage that could in principle be the basis of a Ss. 15 equality right. None of the JJ considered that the economic advantage of the claimants’ non-recognition as spouses should defeat their Ss. 15 claim. La Forest J (for 4 of 5 JJ who upheld the legn) dismissed the point by saying that, while there might be an advantage “in this specific instance”, “there was nothing to show that this is generally the case with homosexual couples”. Cory J, dissenting, (on this point had agreement of Sopinka, Iacobucci and McLachlin JJ) said that “concept of equal benefit of the law should not be restricted to a simple calculation of economic profit or loss” L’Heureux-Dubé J agreed that “it would take too narrow a view of the phrase ‘benefits of the law’ *in Ss. 15] to define it strictly in terms of economic interests”. NB, many people would place a higher value on additional income; if the Ss. 15 argument had prevailed here, the law would have been invalidated not only for Egan and his partner, but for all other same-sex couples in like circumstances. The SC was implicitly applying a subjective standard in Egan: the claimants were disadvantaged because, according to their subjective calculus of costs and benefits, the disadvantage of not being officially recognized as spouses outweighed the advantage of higher single-status social assistance.
McKinney v Uni of Guelph [1990] (unarticulated subjective standard applied)
SC held that mandatory retirement at age 65 constituted discrimination on the basis of age. The Court assumed that mandatory retirement was a disadvantage to employees aged 65. From an objective standpoint, this is probably wrong. The evidence in this case suggested that in a regime of mandatory retirement, wages rise faster with seniority than they would if there were no definite end to an individual’s employment, continuous performance assessment is not usually imposed upon older workers and pension rights are usually agreed to and contributed to by the employer. Assuming this to be so, one might well conclude that a person of 65, who admittedly now confronts the downside of the regime, had nonetheless received overall a net benefit from mandatory retirement. But none of the judges doubted that the individual plaintiffs, who had reached 65 and wished to continue their work (at full salary), were disadvantaged by the obligation to retire. From their own subjective standpoint, the P professors were disadvantaged. SC held that mandatory retirement was justified under Ss. 1 As part of the Ss. 1 inquiry, the Court DID attempt an objective weighing of the costs and benefits of mandatory retirement. SC concluded that mandatory retirement offered significant benefits to individual university professors, as well as to the universities as centres of teaching and research. SC’s (objective) calculus of costs & benefits, rather than (subjective) calculus of Ps, is the one that prevailed.
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COMPARED WITH Thibaudeau (1991) (objective disadvantage)
SC upheld the Income Tax Act’s deduction-inclusion system for taxing child support. The claimant regarded herself as disadvantaged by the Income Tax Act provisions, BUT SC held that the deduction-inclusion system was, on the whole, beneficial to separated custodial parents. Reasoning took place within Ss. 15. In contrast to McKinney, the SC did not need to advance to the Ss. 1 inquiry. In effect, w/o saying, the SC in Thibaudeau applied an objective measure of disadvantage to Ss. 15 equality claim. Claim failed for lack of objective disadvantage, despite claimant’s subjective sense of disadvantage.
R v Swain [1991] (objective disadvantage)
Would a person accused of a criminal offence, who had chosen NOT to raise the defence of insanity, be discriminated against by a rule that permitted the Crown against the wish of the accused to raise the issue of insanity? If the accused were convicted of the criminal offence, he would be subject to a finite sentence imposed under the CCd. If the accused were acquitted on the ground of insanity, he would be detained indefinitely at the pleasure of the LG. One can easily understand why an accused would regard the indefinite detention as a worse alternative than the finite sentence. And this alternative is triggered by the mental disability of the accused, which is one of the grounds of discrimination named in Ss. 15 Lamer CJ for the maj, held that there was NO discrimination b/c the accused who was acquitted on the ground of insanity did not really suffer a disadvantage; rather, was spared the disadvantage of being convicted of an offence for which by reason of insanity he did not have the requisite guilty mind
Fluctuations btw objective and subjective disadvantage may have been resolved in Law. Law v Canada [1999]
This case did not explicitly address the question of disadvantage. However, the case did introduce into the equality jurisprudence a new requirement of human dignity and it addressed the question whether an impairment of human dignity was to be assessed from a subjective or an objective perspective. SC’s answer was that both perspectives MUST be employed. The inquiry was to be undertaken “from the perspective of the claimant and from no other perspective”, but the claimant’s assertion must be “supported by an objective assessment of the situation”. This seems to make the objective assessment the decisive one. Later cases have clarified the test as meaning that an impairment of human dignity is to be assessed from the perspective of a reasonable person (objective), but one who shares the attributes and circs of the claimant (subjective): Can Found. for Children, Youth and the Law v Can (2004). Presumably, this test would not be the appropriate one for the assessment of disadvantage as well.
(d) Human dignity and disadvantage
Judicial discussion of human dignity inevitably ranges far and wide and often sounds very much like a discussion of disadvantage. Eg, NS v Walsh (2002), decided on human dignity (NO analysis of disadvantage) Canadian Foundation for Children, Youth and the Law v Canada (2004), decided on human dignity, NOT on the absence of disadvantage. When ***Kapp removed human dignity from the Ss. 15 analysis, it replaced the concept with “discrimination”, a similarly indeterminate element. The ***Kapp requirement has the same tendency to absorb the requirement of disadvantage.
Ermineskin Indian Band and Nation v Canada [2009]
SC dismissed an equality challenge by Indian bands to the investment provisions of the Indian Act, which precluded the external investment of band moneys held by the Crown. Rothstein J, for the Court, avoided the issue of disadvantage altogether by pointing out that “if the preclusion of investment by the Crown is a disadvantage, the legislation will violate Ss. 15(1) ONLY if that disadvantage is one that is discriminatory, that is, if it perpetuates prejudice or stereotyping” He then pointed out that the retention of Indian moneys in the consolidated revenue fund, where they were regularly credited with a reasonable rate of interest, reduced the power of the Crown to control the fund, avoided any risk of loss to the fund and maintained the liquidity of the fund.
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Conclusion was that features were NOT discriminatory in sense of perpetuating prejudice or stereotyping.
Hogg argues that the more obvious conclusion was that the investment provisions entailed prudent practices that did not impose a disadvantage on the Indian bands. (e) Group disadvantage ***Andrews v Law Society of BC
Both Wilson and McIntyre JJ referred to non-citizens as an example of a “discrete and insular minority”, an obscure phrase which in the US has become a code word to describe groups that typically experience discrimination. Wilson J elaborated by explaining that non-citizens were “a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated”. La Forest J described non-citizens as “an example without parallel” of a group “who are relatively powerless politically and whose interests are likely to be compromised by legislative decisions”
R v Turpin [1989]
Ss. 15 challenge was mounted to a provision of the CCd that stipulated that certain of the most serious offences, including murder, to be tried by judge & jury and that gave no right to elect a trial by judge alone. The Ss. 15 argument was based on another provision of the CCd, which was applicable only in AB and which gave to an accused person the right to elect a trial by J alone for all indictable offences, including murder. Here, the 3 accused were charged with murder in Ont. They wished to be tried by judge alone and they argued that failure of CCd to accord that right to an accused person in Ont was discriminatory, b/c the right was available to an accused in AB. SC rejected the Ss. 15 argument on basis that the 3 accused were not members of a disadvantaged group. Wilson J for a unanimous Court said that it was NOT sufficient for the equality claimant to show that s/he was disadvantaged by the impugned law. That was necessary, but not sufficient. The claimant had to go further and show that the distinction employed by the statute was one that defined a group that was disadvantage in other respects. Province of residence (or trial) did not, at least in this case, identify a disadvantaged group. It was impossible to identify “indicia of discrimination such as stereotyping, historical disadvantage or vulnerability to political and social prejudice” The claim would NOT “advance the purposes of Ss. 15 in remedying or preventing discrimination against groups suffering social, political and legal disadvantage in our society” Since the claim was outside the purpose of Ss. 15, it was also outside the scope of Ss. 15 and the claim accordingly was rejected.
R v Hess [1990]
Section 15 attack against the statutory rape offence in the CCd. This provision, since repealed, made it an offence for a male person to have intercourse with a female person under the age of fourteen. Attack based on discrimination by sex: provision applied only to male offenders & protected only female Wilson J, for the majority (Sopinka J concurring) (5:4), held that the provision did NOT offend Ss. 15, because the def’n of intercourse used the concept of penetration, which could as a matter of biological fact be committed only by a man; therefore, it was not discriminatory to apply the offence only to men. Wilson J did NOT repeat her general disadvantage argument / dictum in Turpin which suggested that “a distinction against men as compared with women” could not be discrimination under Ss. 15, because men could “rarely show discrimination apart from the provision they are challenging” (per McLachlin J). Wilson J assumed that discrimination against men was contrary to Ss. 15 McLachlin J, for the minority, held that the statutory rape provision did offend Ss. 15, because of its discrimination against men, although she went on to uphold the provision under Ss. 1 The provision was declared a breach of Ss 7 (because of its removal of a mens rea requirement) and it was not upheld under Ss 1
Weatherall v Canada [1993]
An inmate in a federal penitentiary brought a constitutional challenge under Ss. 15 to the penitentiary’s practice of allowing female guards to perform frisk searches and observe the cells (and toilets) of male prisoners. These “cross-gender” indignities were NOT visited on female prisoners, who were always searched and observed by female guards. SC held that there “may be” no discrimination against the male prisoners in this situation.
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SC did not reach a definite conclusion, falling back on Ss. 1 to justify the challenged practice. The justification was that the presence of female guards would “humanize” the institutions and would aid in the achievement of “employment equity” in the correctional system. However, La Forest J for the Court did use the language of general disadvantage. He said that “women generally occupy a disadvantage position in society in relation to men”. Hogg argues that this is NOT appropriate – in the prison setting, the man is the disadvantaged party; it is cold comfort to him that other men (not in prison) have nothing to complain about. The question whether a showing of general (or group) disadvantage is a prerequisite to a Ss. 15 equality claim has probably now been settled.
Miron v Trudel (1995) and Egan v Canada (1985)
The claim of discrimination in each case was made by a member of a group that, the Court held, was generally disadvantaged. (It was common-law couples in Miron and same-sex couples in Egan) In neither case, therefore, was it necessary to pronounce on the issue whether general disadvantage was a pre-req to a Ss. 15 claim. Nonetheless, in Miron, 8 JJ said that membership in a disadvantaged group was NOT a prereq, BUT merely an “indicia” or “indicium” of an analogous ground. In Egan, Cory J (with 3 others) said that: “while historical disadvantage or a group’s position as a discrete and insular minority may serve as indicators of an analogous ground, they are not prerequisites for finding an analogous ground”.
When the Law case introduced human dignity into the Ss. 15 analysis in 1999, Iacobucci J for the Court made reference to group disadvantage as a “contextual factor” in determining whether there had been an impairment of the claimant’s human dignity.
He said that “the important purpose of Ss. 15(1) in protecting individuals or groups who are vulnerable, disadvantaged or members of ‘discrete and insular minorities’ should ALWAYS be a central consideration”. However, the claimant’s association with a “disadvantaged group or groups” was “NOT per se determinative” of an impairment of human dignity.
This seems to be the current position of the Court.
It is NOT necessary for a claimant under Ss. 15 to establish that s/he is a member of a group that is generally disadvantaged, ie, disadvantaged in ways that are independent of the particular legal distinction under challenge. It is enough to establish that the claimant is disadvantaged by the particular legal distinction under challenge. However, a showing that the claimant is a member of a generally disadvantaged group will assist in persuading the court that the legal distinction is discriminatory.
55.11 Direct and indirect discrimination (a) Substantive equality
In ***Andrews, SC made clear that Ss. 15 required substantive and NOT merely formal equality. McIntyre for the majority pointed out that “identical treatment may frequently produce serious inequality”.
Section 15 applies to all of the following kinds of laws: 1.
The law that is discriminatory on its face; [direct discrimination]
2.
The law that is discriminatory in its effect; and [indirect discrimination]
3.
The law that is discriminatory in its application. [procedural discrimination]
ONLY 2 claims of indirect discrimination have been successful. Eldridge v BC [1997]
Challenge to the failure of BC’s statutory health care plan to provide publicly-funded sign- language interpretation to deaf persons seeking medical services. BC’s law was neutral in that all persons were denied sign-language interpretation, BUT the denial ONLY disadvantaged deaf people. SC held that the law discriminated against deaf people in breach of Ss. 15
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Vriend v Alberta [1998]
Challenge to the failure of Alberta’s HR leg’n to include sexual orientation in the list of forbidden grounds of discrimination in employment. Alberta’s law was neutral in that the denial of a remedy applied to those of heterosexual orientation as well as to those of homosexual orientation. However, the disproportionate impact of the law led the SC to hold that it discriminated against those of homosexual orientation in breach of Ss. 15
DesRochers v Canada [2009]
The SC reviewed the administration of a federal program to promote economic development in rural areas. The issue was whether the language rights of the Charter (and similar statutory rights) were being respected by the administrator of the program. The concerns of the complainant were that the content of the program for the Frenchspeaking community was distinct from that for the English- speaking community and that fewer French-speakers were taking advantage of the program. This was not a Ss. 15 case, but Ss. 16(1) of the Charter requires that English and French have equal status in federal gov’t programs and the Court held that, in the administration of the economic development program, “services of equal quality” had to be provided to the two linguistic communities. But equal quality in this context, as in Ss. 15, meant substantive equality not formal equality. Substantive equality did not require identical results to each language community because each community had its distinct needs and priorities. On the evidence, the Court was satisfied that the services provided to the French community met the obligation of linguistic equality.
(b) Unintended discrimination
In ***Andrews, McIntyre for the majority on this issue, explicitly addressed the issue of intention. In defining discrimination, he used the phrase “whether intentional or not” He followed the cases in which the court had decided that discrimination under statutory HR codes need NOT be intentional, holding that the same rule applied to Ss. 15 In this case, all the judges assumed that the legislators thought that citizenship was a bona fide occupational requirement for the practice of law. The benign purpose was irrelevant under Ss. 15, BUT it was relevant to the Ss. 1 inquiry (purpose is always relevant under Ss. 1). The majority held it was NOT justified under Ss. 1
(c) Reasonable accommodation Ont Human Rights Commn v Simpsons-Sears [1985]
SC has held that an employer (a retailer) was under a duty to make reasonable adjustments to employee work schedules so th employee who was 7 Day Adventist would not have to work on Friday evenings & Sat
Eldridge v BC (1997)
This was a HR code case, but the same principle would apply under Ss. 15 as well Room for argument as to the form of accommodation that is required by Ss. 15
Eaton v Brant County Board of Education [1997]
SC held that a school system was under a Ss. 15 duty to make a reasonable accommodation to the educational needs of children with mental or physical disabilities. BUT what form should that accommodation take? Parents argued that equality guarantee of Ss. 15 conferred on child a right to remain in regular classroom and that the school board was under a duty to accommodate her needs in the regular classroom setting. SC held that there was NO rule or presumption in favour of the regular classroom setting. The school board’s duty of reasonable accommodation was to be driven by the best interests of the child, NOT the wishes of the parents. Here, there had been a careful assessment of the needs of the child, which included evidence of her difficulties in the regular classroom setting and the assessment tribunal had determined that the segregated placement was in the child’s best interests. This decision fulfilled the school board’s duty of accommodation and there was NO breach of Ss. 15
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55.12 Justification under Ss. 1
Since Law (1999) imported human dignity into Ss. 15, there has been ONLY one case in which Ss. 1 saved a law in breach of Ss. 15
Newfoundland v NAPE [2004]
The SC decided that Nfld, faced w/ a serious financial crisis, could enact a law postponing the implementation of collective agreements under which the gov’t had undertaken to increase the wages of female hospital workers in order to achieve pay equity with men. SC held that law withheld benefit on basis of a listed ground, namely, sex. SC also held that it was a breach of human dignity to maintain in force wages that did not do justice to the female workers’ contribution. Therefore, there was a breach of Ss. 15 BUT the SC accepted that in 1991, when law was enacted, the province had experienced reduction in federal transfer payments, causing province to make comparable cuts in expenditures, which it did by temporarily freezing wages of ALL public sector employees, laying off employees and not filling vacant positions, closing hospital beds, reducing medicare coverage & freezing / reducing expenditures for EDU and gov’t programs. Although the pay equity agreements were mandated by the Charter, their postponement was justified under Ss. 1 as part of the response to the fiscal crisis.
55.13 Affirmative action
Subsection (2) of Ss. 15 makes CLEAR that Ss. 15 does NOT preclude “affirmative action” or “equity” programmes in favour of “disadvantaged individuals or groups”. NOT clear whether Ss. 15(2) is an exception to Ss. 15(1) OR whether it is simply a clarification of Ss. 15(1).
*** R v Kapp [2008]
McLachlin CJ and Abella J, for the maj, quoted the following sentence from Hogg with approval: “Under a substantive definition of equality, different treatment in the service of equity for disadvantaged groups is an expression of equality, not an exception to it”. Rejected idea that Ss. 15(2) was an exception to Ss. 15(1). They described the two subsections as “confirmatory” of each other. (1) The focus of subsection (1) was on preventing gov’ts from discriminating; (2) The focus of subsection (2) was on enabling gov’ts to pro-actively combat discrimination. Further, subsection (2) had an “independent role” to play: IF an affirmative action program met the criteria of subsection (2), THEN the program was valid under Ss. 15(2) and NO Ss. 15(1) analysis was necessary. IF program failed to meet the criteria of Ss. 15(2), THEN a Ss. 15(1) analysis would have to be undertaken. The program in issue in Kapp was a special “communal” commercial fishing licence, which was authorized by the federal Fisheries Act and available ONLY to Indian bands. Licence authorized fishing by the members of 3 bands for salmon in the mouth of the Fraser River for an exclusive 24-hour period before non-aboriginal commercial fishing licences took effect. Effect of communal licence was to enlarge right to fishing for sale for the exclusive 24-hr prior stipulated in license. Commercial fishers who were NOT members of the 3 Indian bands held a “protest fishery” during the 24-hr period that the fisher was closed to them; they were duly charged with fishing while prohibited; and they defended the charges by arguing that the communal licence was unconstitutional. The fishers argued that the privileged access granted by the communal licence ONLY to aboriginal fishers constituted discrimination on the ground of race. The Court unanimously upheld the constitutionality of the communal licence. McLachlin CJ and Abella J, for 8 of 9 JJ, based their decision squarely on Ss. 15(2) Communal-licence program was indeed restricted by race, which was listed ground under Ss. 15(1). BUT, the program had as its “object” the “amelioration of conditions” of the 3 Indian bands, which, the JJ held, were “disadvantaged” groups (as compared to Canadian society at large rather than the non-aboriginal fishers). The program was therefore covered by Ss. 15(2) and it was NOT necessary to engage in a Ss. 15(1) analysis to conclude that the program was not a breach of the equality guarantee of Ss. 15(1).
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55.14 Discrimination permitted by Constitution (a) Age in Ss. 23, 29, 99
CA, 1867: (1) Person under the age of 30 cannot be appointed to the Senate (Ss. 23) (2) A senator must retire at 75 (Ss. 29) (3) A judge must retire at 75 (Ss. 99) The provisions are sheltered from Charter attack by reason of their constitutional status.
(b) Race in Ss. 91(24) AG Can v Lavell [1974]; AG Can v Canard [1976]
The position under Ss. 15 of the Charter should be the same as under CBoR Laws enacted under Ss. 91(24) that employ the classification “Indian” (or that have a disproportionate impact on Indians or lands reserved for the Indians) should NOT be vulnerable to attack under Ss. 15.
R v Drybones
SC struck down a provision of Indian Act that made it an offence for “an Indian” to be drunk off a reserve Use of “Indian” as ingredient of offence was contrary to equality clause in CBoR
In Ermineskin (2009), the special constitutional status of Indians was not considered. (c) Religion in s 93 Ontario Separate School Funding case [1987]
SC reviewed the validity of an Ontario statute that extended full public funding to Roman Catholic separate secondary schools, which at the time were being funded to grade 10 only. It was attacked on the ground that it was a violation of Ss. 15 to confer a benefit on Roman Catholic separate school supporters, a class defined by their religion. In Ontario at that time, the non-denominational public school system ALSO received full public funding, BUT religious schools OTHER THAN the Roman Catholic schools received NO public funding. SC unanimously upheld the statute on the basis that this distinctive treatment of Roman Catholic school supporters was expressly permitted by the Constitution. SC held that the language of Ss. 93 “contemplates that after confederation the Legislature may establish a new system of separate schools or may enlarge an existing system of separate schools”. Power, if exercised, required the Leg to distinguish between school supporters on the basis of religion. SC drew an analogy with Ss. 91(24) (Indians) pointing out that Ss. 91(24) “authorizes CDN Parl’t to legislate for benefit of Indian population in preferential, discriminatory, or distinctive fashion vis à vis others”. Charter “CANNOT be interpreted as rendering unconstitutional distinctions that are expressly permitted by the CA, 1867”
Adler v Ontario [1996]
Supporters of private religious schools in Ontario sought a declaration that the province’s failure to fund private religious schools was a breach of Ss. 15 of the Charter. SC unanimously decided that the comparison with the fully-funded Roman Catholic schools could not be invoked as a breach of equality, b/c of the special constitutional status of the Roman Catholic schools. Iacobucci J, for 5 JJ majority, ALSO held that the Ps could NOT invoke a comparison with the fully-funded public system because Ss. 93 of the CA, 1867 constituted a “comprehensive code” and the public schools as well as the Roman Catholic separate schools were “part and parcel” of that code. Clear that the Charter is NOT to be read as impliedly repealing or amending the CA, 1867.
(d) Province of residence in Ss. 91, 92
SC has held that place of residence is NOT an analogous ground. Further, differences btw provincial laws cannot amount to discrimination under Ss. 15, because that would require a uniformity of provincial laws which would be inconsistent with the distribution of legislative powers in Ss. 91 and 92 (and some other sections) of the CA, 1867. The federal system operates as a general qualification of Ss. 15’s guarantee of equality.
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(e) Citizenship in Ss. 6
Section 6(1)’s guarantee of the right to remain in Canada applies ONLY to a “citizen”.
Chiarelli v Can [1992]; Charkaoui v Can [2007]
SC has held that the Immigration Act may validly provide for the deportation of non-citizens who have committed criminal offences or who have been certified as a threat to national security
***Andrews v Law Society of BC (1989) (citizenship requirement struck down); Lavoie v Canada (2002) (BUT hiring preference upheld under Ss. 1).
Outside the right to remain in Canada under Ss. 6(1), laws imposing disabilities on non-citizens have been held to be in breach of Ss. 15
(f) Language in Ss. 16-23 Mahe v Alta [1990]
Provisions accord “special status” to French & English “in comparison to all other linguistic groups in CDN” Right to minority language education in Ss. 23 does NOT extend to other minority language speakers by the operation of Ss. 15
55.15 Race
There have been no challenges to Fed or Prov laws on basis of race (statutes long cleansed of racial distinctions). By reason of Ss. 35 and 25, Ss. 15 has only a LIMITED role to play with respect to aboriginal peoples.
55.16Religion Alta v Hutterian Brethren of Wilson Colony [2009]
Alta’s photo requirement for licences. SC accepted that REQ limit on Hutterian Brethrens freedom of religion, BUT majority, upheld the law under Ss. 1 Court rejected Ss. 15 argument, holding that universal requirement of photo licences did NOT create distinction based on religion.
55.17 Sex (a) Direct discrimination R v Hess [1990]
Challenge to statutory rape provision (intercourse with a female person under 14) upheld. Wilson J, for majority, held that, since the prohibited act (“intercourse”) was defined by reference to penetration, it could as a matter of biological fact be committed ONLY by males. Here, as in Bliss v AG Can [1979], it appears to be a holding that the imposition of a disability by reference to a biological characteristic of only ONE sex (such as pregnancy or penetration) is held not to be discrimination by sex. McLachlin J in dissent did not accept Wilson J’s reasoning and found discrimination, but that it was justified under Ss. 1 (risk of pregnancy for young females). Hogg argues McLachlin J’s view is correct.
Weatherall v Canada [1993]
Male prisoners’ complaint about frisk searches and surveillance by female guards. La Forest J said that equality did NOT demand that men and women always be treated in the same way and the effect of cross-gender searching was “different and more threatening for women than for men” Held “may not be” discrimination, but if so, it was justified under Ss. 1 for reasons set out earlier (humanizing effect, employment equity).
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Benner v Canada [1997]
In regulating the citizenship status of persons born outside Canada before 1977, the Citizenship Act provided that a person born to a Canadian father was automatically entitled to citizenship on registration in Canada of the birth, BUT a person born to a Canadian mother had to apply for citizenship and undergo a security check. SC held that this WAS discrimination by sex, which was a breach of Ss. 15 Breach could NOT be justified under Ss. 1, b/c there was NO rational basis to suppose that the children of Canadian mothers required a more rigorous screening process than the children of Canadian fathers. The discrimination by sex applied to the parents of applicants and NOT to the applicants themselves!!! However, SC held that the complainant had standing to invoke Ss. 15, because the denial of his citizenship showed that he was disadvantaged by the discriminatory provision.
Trociuk v BC [2003]
A father challenged a provincial law that permitted a mother, on the birth of a child, to leave the father’s name off the birth certificate and, if she did that, to alone choose the surname of the child. Here, the unmarried mother and father were estranged by the time they had triplets. As authorized by the law, the mother registered the births WITHOUT acknowledging the name of the father and she gave the children her surname without consulting the wishes of the father. Father challenged the validity of the law, because he wanted his name to appear on the birth certificate and he wanted the children to have a hyphenated surname that included his surname. SC held that law distinguished on the basis of sex, since fathers were disadvantaged in comparison with mothers. SC held that the exclusion of fathers from the registration and naming process impaired their human dignity. Therefore, the law infringed Ss. 15 and, as it was NOT justified under Ss. 1, the law was invalid.
Newfoundland v NAPE [2004]
Nwfd enacted Public Sector Restraint Act, delayed for 3 years intro of pay equity for female workers in hospitals. The Act modified a collective agreement that called for a 5-yr series of pay-equity adjustments to the pay of hospital workers in female-dominated jobs which would bring their pay up to that of comparable male workers. The Act delayed the implementation of the agreement, BUT it made no provision for retroactive pay for the period of delay, so that the Act did cancel the gov’ts obligation to make the first 3 years of payments. SC held that the Act WAS a breach of Ss. 15 (discrimination by sex). By postponing the implementation of their contractual right to pay adjustments, the Act singled out a group of women who were being paid less than men who performed work of equal value and perpetuated their disadvantage. SC went on to hold that the Act was saved by Ss. 1, because the Act was a response to a “financial crisis” in the province that provided justification for the limit on the claimants’ Charter rights.
(b) Systemic discrimination Symes v Canada [1993]
Taxpayer argued the Income Tax Act offended Ss. 15 by NOT allowing business to deduct the full cost of child care. The Act allowed a deduction for child care, BUT it was limited to $2,000 per child in 1985 (the taxation yr in issue). Taxpayer self-employed female lawyer with 2 children, had in fact paid $13,000 to a nanny to care for her children. Majority SC acknowledged that women disproportionately bore the social costs of child care, BUT held that the taxpayer had not established that women disproportionately bore the financial costs of child care. Since the deduction would be available with respect ONLY to the financial costs of child care, it would benefit men as much as women and its restriction did not amount to discrimination on the basis of sex.
(c) Section 28 Rights guaranteed equally to both sexes 28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
Ss. 28 seems to REQ is that other provisions of the Charter be implemented w/o discrimination between the sexes. Section 28 is potentially a stronger guarantee than Ss. 15 in the following respects: (1) The 3-year delay in the coming into force of Ss. 15 (by virtue of Ss. 32(2)) did NOT apply to Ss. 28;
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(2) The power of legislative override (under Ss. 33) applies to Ss. 15, BUT not to Ss. 28; and (3) It is possible that even the limitation clause (Ss. 1) does NOT qualify Ss. 28, having regard to Ss. 28’s opening words, “Notwithstanding anything in this Charter”.
55.18 Age AC v Manitoba [2009]
AC, 14 yr old Jehovah’s Witness, subject to a treatment order by a judge made under Manitoba’s Child and Family Services Act (Act used 16 to judge capacity to consent to medical treatment). AC did NOT consent to blood transfusion, BUT judge made order b/c it was in “the best interests of the child”. TJ acknowledged that AC was sufficiently mature to make decisions about her medical treatment, BUT decided that it was in her best interests to receive the blood transfusion. AC & parents challenged constitutionality of statutory power to override wishes of mature child under 16. Majority SC upheld the Act. Abella J, for majority, pointed out that the Act did NOT use age 16 as a conclusive determinant of capacity, BUT merely as the basis for a presumption of capacity. For children under 16, the best-interest standard required the judge to take account of the child’s wishes and to give increasing weight to those wishes as the child’s age, maturity and independence increased. Although a presumption of capacity arose at age 16, this was NOT a breach of Ss. 15 because the treatment of children both under and over 16 was calibrated in accordance with an individualized judgment of their capacity to make decisions in their own best interests, NOT their age. For McLachlin CJ, concurring in the result, the Act DID make a distinction based on age, BUT the distinction was not discriminatory because children under 16 were a vulnerable group in need of protection and they were in any case given an input into the ultimate decision on their treatment. (Hogg argues correct reading of Abella J’s opinion is that she denies that the Act relies on age as a distinction), BUT she may mean (in agreement with McLachlin CJ) that Act DOES use age as distinction BUT one NOT discriminatory. Binnie J, dissenting, did not address the Ss. 15 issue (relying solely on Ss. 2(a) and 7).
Law v Canada (1999)
SC upheld law that provided that CPP benefits were NOT paid to a surviving spouse UNDER the age of 35. SC held distinction based on age NOT discriminatory, b/c did not impair human dignity (case introduced element). SC took judicial notice of the fact that widow/ers under 35 were more capable of replacing the income lost through the death of their spouse. The distinction did NOT imply they were less capable or less worthy; it was simply designed to recognize the reality that older people would be in greater need of support and to apply limited resources to those in greater need.
Gosselin v Quebec [2002]
Quebec’s social assistance law – welfare recipients under 30 received only about 1/3 of regular amount unless they participated in stipulated educational or work experience programmes. SC majority (5:4) followed Law to hold that the distinction based on age was NOT discriminatory, because it did NOT impair human dignity. McLachlin CJ for the majority acknowledged that the welfare scheme (repealed by the time it reached the Court) “was harsh, perhaps even misguided”, but it did NOT treat young people as “less worthy or deserving of respect”; on the contrary, it assumed that they were more able than older people “to benefit from training and education, more able to get and retain a job and more able to adapt to their situations and become fully participating and contributing members of society”.
Wynberg v Ontario (2006) (CoA)
Challenge to a provincial gov’t program that supplied therapy to pre-school children with autism. Program ceased once a child attained the age of six. The CoA of Ontario upheld the distinction based on age re access to the program on the basis that it did NOT impair the human dignity of children aged 6 and over. Program directed to children aged 2-5, b/c expert opinion held that young children responded best to the therapy. It was true that the autism did not cease at age six, even in the most successful cases, BUT the particular program was so time consuming and intensive (20 to 40 hours of one-on-one therapy) that it was ONLY possible to deliver it to children who were not yet attending school full-time.
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SC concluded that the program corresponded to the needs and circumstances of children aged 2-5; for this reason, it did NOT impair the human dignity of school-age children who were denied the therapy (and who were not provided with any alternative program in school for their autism).
Canadian Foundation for Children, Youth and the Law v Canada [2004]
Defence of reasonable force by correction of children/pupils for parents/teachers charged with assault. SC held the distinction by age was NOT discriminatory, because it did NOT impair the dignity of the children who were exposed to the corrective force. It was NOT based on a devaluation of children, BUT on the view that the criminal law should NOT intrude into normal school and family discipline. Criminal law remained available to punish force that was violent or abusive. Criminal law was ONLY excluded “where the force is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory or trifling and is reasonable under the circumstances” Intro of criminal law into families or schools in such circumstances “would harm children more than help them” Concluded defence “is firmly grounded in actual needs & circumstances of children” and thus dignity not impaired.
Mandatory retirement 4 cases in the 1990s: 1. McKinney v Uni of Guelph [1990] – uni profs in Ont 2. Harrison v UBC [1990] – uni profs in BC 3. Stoffman v Vancouver General Hospital [1990] – admitting privileges of doctors at a hosp in BC 4. Douglas/Kwantlen Faculty Assn v Douglas College [1990] – profs at a community college in BC. First 3 cases held to be outside the Charter, because the institutions were outside the control of gov’t. ONLY the 4th case was within the scope of the Charter, because the community college was more tightly controlled by gov’t that the other institutions.
Despite fact that Charter did NOT apply in the first 3 cases, the Court went on to examine the constitutionality of mandatory retirement in those institutions as if Ss. 15 DID apply. SC unanimously held that mandatory retirement was discrimination by age and was in violation of Ss. 15, BUT majority SC held saved by Ss. 1 Human dignity not an element at that time – SC had no difficulty in finding breach of Ss. 15 Section 1 – within unis, the rules permitted faculty renewal by opening up positions for younger faculty and they supported tenure (or employment security) by minimizing the need for continuous performance assessments of older faculty. Within the hospital, the termination of admitting privileges for doctors who had reached 65 created openings for younger doctors and, despite the absence of a formal system of tenure, reduced the need for regular assessments of the competence of older doctors.
Tétreault-Gadoury v Canada [1991]
Did a provision of the Unemployment Insurance Act, which denied benefits to persons over 65, breach Ss. 15? SC followed McKinney to hold that the provision violated Ss. 15 However the Court departed from McKinney to hold that the age-65 bar could NOT be justified under Ss. 1. SC distinguished McKinney on 3 grounds: (1) A university was “a closed system with limited resources”; (2) That “faculty renewal” was “crucial to extending the frontiers of knowledge”; and (3) That “academic freedom” required a minimum of performance review up to retirement age These points, especially the 2nd and 3rd, would be inapplicable in non-uni workplaces, both public and private. But there might be other justifications in other contexts. Here, however, Court rejected what seemed to Hogg to be a power justification for the age- bar: to prevent the doubling up of pension income and unemployment insurance benefits. Here, the applicant was in fact receiving income from 3 pensions, presumably as a consequence of having attained 65.
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55.19 Mental or physical disability Eaton v Brant County Board of Education [1997]
Parents of 12 year old w/ cerebral palsy objected to decision of statutory tribunal to move out of regular classroom. See above, disagreement on the form of reasonable accommodation required. SC held Ss. 15 right belonged to child, NOT parents, and, here, the decision was reached after a careful process of assessment and driven by the best interests of the tribunal. Therefore, it was an accommodation of her special needs that fully complied with Ss. 15
Wynberg v Ontario (2006) (CoA) Autism program for 2-5 yr olds
Disability claim ALSO rejected, because the therapy provided to pre-school children would NOT be the appropriate accommodation for school children, because it was so time-consuming and intensive that it could NOT be fitted into a fulltime school program without abandoning most of the other instruction. Ontario schools did provide some programs and services for autistic children, BUT little evidence as to efficacy of interventions. Thus claimants had failed to prove that what was provided was inappropriate and claim dismissed.
Winko v BC [1999]
CCd provided that disposition of an accused following a verdict of “not criminally responsible on account of mental disorder” was to be remitted to a review board, which was to assess the risk that accused posed for public safety and then to direct the accused be either discharged absolutely, conditionally or detained in custody in a hospital. Accused received conditional rather than absolute discharged and argued that the provisions violated Ss. 15 by treating mentally ill offenders differently from other offenders. SC rejected the challenge and upheld the provisions. Although the CCd created a distinction based on mental disability, the provisions did NOT impair the human dignity of those who were found not criminally responsible. On the contrary, the provisions recognized that mentally ill offenders should NOT be punished, BUT should be provided with rehabilitative treatment. Each individual received an assessment of his/her actual personal situation, received the treatment that was judged appropriate to that situation and was restrained only to the extent judged necessary to protect the public.
Granovsky v Canada [2000]
Federal leg’n establishing the CPP REQ claimant for disability pension to establish not only that s/he suffered from permanent disability BUT ALSO that had contributed to Plan in 5 of previous 10 years or 2 of the previous 3 years. Mr Granovsky was unable to satisfy the contribution REQ b/c his disability (a back condition) had prevented him from working long enough in either the previous 10 or 3 years to make the required contributions. CCP leg’n permitted an applicant to drop out of the calculations those parts of the 10-yr qualifying period when the required contributions had NOT been made by reason of a permanent disability. BUT Mr Granovsky could NOT take advantage of the drop-out provisions, because his periods of non-contribution had been caused by a temporary rather than a permanent disability. He fell through the cracks and claimed that his failure to qualify for a disability pension was a breach of Ss. 15 There was no doubt that he had been denied a benefit on the basis of a listed ground (physical disability), BUT the SC held that the denial was NOT a breach of Ss. 15 By giving preference to the claims of those who had been permanently disabled during the qualifying period, Parl’t was recognizing a greater need and not impairing the human dignity of those who had been temporarily disabled during the qualifying period.
NS v Martin [2003]
NS’s statutory workers’ compensation scheme – provisions dealing with “chronic pain” struck down. The scheme provided ONLY for a 4-week program of rehab for a worker who was still suffering from chronic pain after the apparent healing of a work-related injury; after taking the program, the worker was supposed to return to work. SC held this was NOT appropriate as general answer to chronic pain, which often persisted beyond 4-week period. Restriction on benefits for chronic pain distinguished btw workers with chronic pain and workers with other kinds of workrelated injuries. Distinction based on disability, even though members of comparison group also disabled. Distinction also impaired the human dignity of chronic pain sufferers & thus counted as discrimination that was prohibited by Ss. 15. It could NOT be justified under Ss. 1
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SC struck down the provision and postponed the declaration of invalidity for 6 months. Criticism – should have deferred to legislative judgment. SC acknowledged that chronic pain has no physical manifestations, that there is no received method of diagnosis or treatment, that false claims are hard to detect and that “the medical evidence before us does point to early intervention and return to work as the most promising treatment for chronic pain” SC also acknowledged that the benefits of gov’t programs cannot be “fully customized”. However, SC ordering customized scheme & was dismissive of concerns based on cost & admin expediency.
Eldridge v BC [1997]
SC held that the administrators of BC’s health services plan had NOT accommodated the special needs of deaf people seeking medical services, because they were NOT providing sign-language interpretation. SC held this was a breach of Ss. 15; because communication was a crucial part of most medical services, it was a denial of equal benefit to deaf people not to provide the assistance that would enable effective communication to occur btw a deaf patient and a hospital or doctor.
Rodriguez v BC [1993]
P, who suffered from a debilitating, fatal disease (Lou Gehrig’s disease), challenged constitutionality of CCd offence of assisting a person to commit suicide. This provision had the effect of prohibiting the commission of suicide by a person so disabled that they couldn’t do it themselves, when non-disabled person were free to commit suicide by themselves. SC upheld the provision. Sopinka J, for the majority, did NOT deal with this argument, contenting himself that the prohibition would in any case be justified under Ss. 1
55.20 Citizenship ***Andrews v Law Society of BC [1989]
BC law requiring a person be a Canadian citizen as a qualification for admission to the bar of the province was a breach of Ss. 15 that was NOT justified by Ss. 1
Andrews followed in Lavoie v Canada [2002]
Was discrimination under Ss. 15 BUT upholding statutory hiring preference in the federal public service under Ss. 1
55.21 Marital status Miron v Trudel [1995]
SC held marital status was an analogous ground and that Ontario’s Insurance Act offended Ss. 15 by limiting accident benefits to the legally-married spouse of an insured, which had the effect of excluding CL spouses. After this case, SC added human dignity element. This added some protection to the institution of marriage.
Nova Scotia v Walsh [2002]
Challenge to NS’s matrimonial property law, which came into effect on breakdown of marriage, NOT CL rel’p SC decided that the exclusion of CL rel’p did NOT impair human dignity, because the law was premised on the assumption that ONLY those persons who had made the choice to get married had committed themselves to a rel’p of such permanence that would justify imposing on them obligations to contribute to & share each other’s assets. Mere choice to live together, w/o getting married, could properly be viewed by the Leg as not sufficient to trigger the radical revision of property rights required by the shared property regime. Bastarache J, for the majority, concluded that distinction drawn by law btw legally-married spouses and CL spouses corresponded to real differences btw the rel’p and did not impair the dignity of CL spouses. The law was upheld.
55.22 Sexual orientation Egan v Canada [1995]
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SC held an analogous ground where the federal Old Age Security Act offended Ss. 15 by making a spousal allowance available to a spouse “of the opposite sex” BUT NOT to a same-sex partner. Provision upheld under Ss. 1 by narrow majority (5:4).
Vriend v Alberta [1998]
SC unanimously held that AB’s HR statute offended Ss. 15 by failing to provide a remedy for a person who had been discriminated by his employer on the basis of sexual orientation. Since statute provided a remedy for discrimination in employment on basis of a host of grounds including age, sex, race, religion, disability and marital status, omission of sexual orientation was denial of equal benefit of law based on an analogous ground. Omission was NOT saved under Ss. 1, b/c AB failed to adduce evidence of a legitimate legislative goal that would be advanced by the failure to protect homosexual persons from discrimination on the basis of their sexual orientation.
M v H [1999]
SC held by a majority that the exclusion of persons in same-sex relationships from the spousal support obligations in Ontario’s family law leg’n was unconstitutional. Def’n of spouse discriminated on the ground of sexual orientation (an analogous ground) AND it impaired human dignity by implying that persons in same-sex relationships were LESS worthy of protection than persons in opposite-sex rel’p. The def’n was NOT saved under Ss. 1, b/c goals of the leg’n, which were to make equitable provision for the economically weaker spouse on the breakdown of a rel’p and to ease the burden on the public purse, were NOT advanced by the exclusion of same-sex couples.
Canada v Hislop [2007]
Class action challenge to remedial law in CPP (which was changed, along with 67 other statutes in response to M v H), which changed the survivor-benefit provisions to included same-sex partners, BUT was prospective from Jan 1, 1998, so that persons whose same-sex partners had died before 1998 were ineligible for the survivors’ pension. SC held that Ss. 15 REQ eligibility for the survivors’ pension had to be made retroactive to April 15, 1985, when Ss. 15 came into force. Appropriate comparison was between survivors of opposite-sex rel’p whose partners died btw 1985 and before 1998 (and who were eligible for the pension) and survivors of same-sex rel’p whose partners died in the same period (and who were ineligible for the pension). Failure to grant eligibility to latter class was discrimination on basis of sexual orientation and could NOT be justified under Ss. 1 SC accordingly struck down the restriction on eligibility in the remedial statute. However, SC went on to make a surprising distinction btw the rule governing eligibility (which had to be retroactive) for benefits AND the rule governing payment of benefits. SC held that Parl’t could properly make payment of benefits prospective ONLY & payment provisions were upheld!
Little Sisters Book and Art Emporium v Canada [2000]
SC agreed that the customs officials did indeed target the imports of Little Sisters because of the homosexual content, that this treated the homosexual communities differently than the heterosexual communities and that the dignity of the importers was diminished by the differential treatment. There was a breach of Ss. 15, however, the discrimination was NOT inherent in the definition of obscenity in the customs leg’n. Discrimination occurred “at administrative level in the implementation of the customs legislation” Appropriate remedy was NOT to strike down leg’n, BUT to insist on more even & sensitive ADMIN of the leg’n.
Same-Sex Marriage Reference (Re Same-Sex Marriage) [2004]
SC held that Parlt’s power over “marriage” in Ss. 91(26) CA, 1867 extended to legalization of same-sex marriage. SC also asked to determine whether the opposite-sex requirement for marriage was consistent with the Charter. This question was the issue that was not pursued when no appeals were taken from the provincial decisions that held that the def’n of marriage breach Ss. 15 and was NOT justified under Ss. 1. The SC refused to answer this question on the ground that it would serve NO purpose, since the Gov’t was planning to introduce leg’n to eliminate the opposite-sex requirement.
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55.23 Place of residence R v Turpin [1989]
Not an analogous ground 3 accused who wanted trial by judge alone (allowed in AB, but in no other province).
Corbiere v Canada [1999]
Members of the Batchewana Indian Band who lived off the band’s reserve challenged the provision of the Indian Act that made residence on the reserve a REQ for voting in band elections. SC unanimously held that “Aboriginality-residence” was an analogous ground and that the voting requirement, being based on that ground, was a breach of Ss. 15 Its decision was confined to “off-reserve band member status” and did NOT apply to residence in general. “The ordinary ‘residence’ decision faced by the average Canadian should NOT be confused with the profound decisions Aboriginal band members make to live on or off their reserves, assuming choice is possible”. For aboriginals, decision to live off the reserve was often dictated by the inadequate size of the reserve, lack of housing and job opportunities on reserve and fact that some leg’n (now reversed) had removed band membership from some Indians and forced them off the reserve. Residence off the reserve was thus in many cases practically immutable in that the contrary decision would involve unacceptable personal cost. Differences in treatment of individuals that are caused by federalism MUST be able to be accommodated by the Charter.
R v S(S) [1990]
A provision of the federal Young Offenders Act authorized AG of each province to establish a programme of “alternative measures” to divert young offenders away from the courts. Not only did this provision contemplate that different provinces would establish different programmes, it also permitted a province to establish no programme at all. A young offender in Ontario, where there was no programme, argued that failure of Ontario to establish a programme, when 9 other provinces had done so, was a violation of his equality right under Ss. 15. Argument was rejected for the (Hogg argues wrong) reason that the discretion was not “law” (see earlier notes). SC went on to discuss constitutionality of the leg’n enabling establishment (or non-establishment) of DIFF programmes. After noting that differences btw provincial laws could NEVER amount to discrimination because of the federal principle, Dickson CJ for the Court, pointed out that province-based distinctions in federal laws could also be “a legitimate means of forwarding the values of a federal system”. This was especially so in the field of criminal justice, where “balancing of nat’l interests and local concerns has been accomplished by a constitutional structure that both permits and encourages federal-provincial co-operation”. Concluded that diversion-programmes authority in the Act was appropriate reflection of federal values, allowing as it did the adoption of diversion programmes that were suitable to the particular needs of local communities. Thus the distinction in the Act based on province of residence did NOT constitute discrimination within Ss. 15 “There can be no question, then, that unequal treatment which stems SOLELY from the exercise, by provincial legislators, of their legitimate jurisdictional powers CANNOT be the subject of a Ss. 15(1) challenge on the basis ONLY that it creates distinctions based on province of residence” per Dickson CJ (obiter dictum).
Haig v Canada [1993]
Residency requirements in voting in referenda to approve Charlottetown Accord. Haig slipped through the cracks and was NOT allowed to vote as he did not meet residency requirements. SC held decision NOT to apply Fed referendum law in ALL Prov legitimately reflected “values of a federal system”
Siemens v Manitoba [2003]
A provincial law established a local option scheme for video lottery gaming in the province. Each municipality was authorized by the law to hold a plebiscite on the banning of video lottery terminals. The provincial law gave effect to ANY such plebiscite by providing that video lottery gaming was prohibited in any municipality in which the electors had held a plebiscite and approved the ban. The law also singled out the town of Winkler, which had held such a plebiscite before the passage of the enabling law. In that plebiscite, the electors had resolved to request the province to ban video lottery terminals in Winkler.
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Because the electors of Winkler had already expressed their opinion in a plebiscite, the provincial law directly prohibited video lottery gaming in Winkler. The operators of video lottery terminals in Winkler challenged this prohibition under Ss. 15. SC (citing Haig) doubted that place of residence could be an analogous ground and held that it certainly was NOT in this case, where the law simply gave effect to the majority will of the residents of the municipality
55.24 Occupation
Occupation is NOT an analogous ground. It lacks the immutability that is common to the listed grounds and is required for the analogous grounds.
Re Workers’ Compensation Act, 1983 (Nfld) [1989]
Challenge was mounted against the provision of the Workers’ Compensation Act of Nfld that denies to an injured worker the right to sue his/her employer in tort for injuries suffered in the course of employment. It was argued that this breached Ss. 15, because other accident victims, eg, victims of road accidents, could bring a tort action against the person whose fault caused the injury. SC disposed of the case in a single paragraph, the essence of which was that the singling out of work-related accident victims was NOT based on a listed or analogous ground.
Delisle v Canada [1999]
Majority SC held that the exclusion of members of the RCMP from the federal Public Service Staff Relations Act, which regulates labour relations in the federal public service, was NOT a breach of Ss. 15 A legislative distinction btw occupational groups could NOT be challenged under Ss. 15, because occupation was NOT a “functionally immutable” characteristic that could qualify as an analogous ground. SC also reject argument based on freedom of association (Ss. 2(d)) on the ground that the police officers still had their CL right to associate even though they lacked the superior statutory rights of collective bargaining.
cf Dunmore v Ontario [2001]
SC reversed itself on the freedom of association argument and held that the exclusion of agricultural workers from Ontario’s Labour Relations Act WAS a breach of Ss. 2(d) (and could NOT be saved under Ss. 1). Hogg argues the case was not really a freedom of association case as the agricultural workers were REALLY making an equality claim. Leg’n from which they were excluded did NOT diminish their CL right to associate; what the leg’n did was to give superior rights to other workers in Ont. Bastarache J, for the maj, said that it was “not necessary” to consider Ss. 15 of the Charter, because the remedy could be had under Ss. 2(d). Major J, dissenting, pointed out that it was obvious on the basis of prior case law that the agricultural workers would NOT be able to satisfy the analogous ground requirement that had defeated the police officers in Delisle.
See distinction of Delisle in Dunmore at [41] per Bastarache J: As just noted, the mere fact of exclusion from protective legislation is not conclusive evidence of a Charter violation; as I observed in Delisle, supra, RCMP officers had the strength to form employee associations in several provinces despite their exclusion from the PSSRA (para. 31). That being said, it is possible to draw a distinction between groups who are “strong enough to look after [their] interests without collective bargaining legislation” and those “who have no recourse to protect their interests aside from the right to quit” (see Canadian Industrial Relations: The Report of the Task Force on Labour Relations (1968), at paras. 253-54). As Canada’s leading Task Force on Labour Relations recognized as early as 1968, agricultural workers fall into the latter category (para. 254). Not only have agricultural workers proved unable to form employee associations in provinces which deny them protection but, unlike the RCMP officers in Delisle, they argue that their relative status and lack of statutory protection all but guarantee this result. Distinguishing features of agricultural workers are their political impotence, their lack of resources to associate without state protection and their vulnerability to reprisal by their employers; as noted by Sharpe J., agricultural workers are “poorly paid, face difficult working conditions, have low levels of skill and education, low status and limited employment mobility” (p. 216). Moreover, unlike RCMP officers, agricultural workers are not employed by the government and therefore cannot access the Charter directly to suppress an unfair labour practice (Delisle, at para. 32). It is no wonder, therefore, according to the appellants, that agricultural workers have failed to associate in any meaningful way in Ontario, while RCMP officers have successfully created independent employee associations in several provinces across Canada (Delisle, at para. 31).
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Health Services and Support – Facilities Subsector Bargaining Assn v BC [2001]
BC enacted Act that purported to override some rights possessed by the province’s unionized health care workers under collective agreements. The Act laid down new rules regarding seniority, layoffs, bumping and contracting out, which were designed to give the hospitals and other health-sector employers more freedom in managing their workforce in order to deliver services more efficiently and rein in the costs of publicly funded health care. Unions successfully argued that the Act was a breach of freedom of association in Ss. 2(d) SC did NOT import an equality value into Ss. 2(d), as it had done in Dunmore. INSTEAD, SC held for the first time that Ss. 2(d) directly protected the union right of collective bargaining. Because the Act substantially interfered with the terms of the collective agreements, it was invalid. The unions also made an equality argument under Ss. 15, which was based on the singling out of health care workers, and this was rejected unanimously by the SC. SC said that adverse effects of the Act on health care workers “relate essentially to the type of work they do, and NOT to the persons they are.” There was no “differential treatment based on personal characteristics”. Therefore, occupation was again rejected as an analogous ground.
***Withler v. Canada (Attorney General) - 2011
The appellants, who were representative plaintiffs in a class action against the Crown, were widows whose federal supplementary death benefits were reduced because of their husbands' ages at time of death. Supplementary death benefit reduced by 10% for each year by which the plan member exceeded a prescribed age. The appellants submitted that the age-based benefit reduction, which was part of a statutory death benefit scheme for certain federal government employees, violated section 15 of the Charter. While SC of Canada ultimately dismissed the widows' appeal, it rejected the Crown's argument that because their husbands were the actual subjects of the alleged discrimination, the widows lacked standing. The court granted the widows standing on the basis that as surviving spouses they suffered the alleged discriminatory effect. Furthermore, federal employees were unlikely to challenge the scheme of their own accord. With respect to the widows' substantive claim, the court emphasized that Ss 15 ONLY prohibits substantive discrimination on the grounds set out therein, OR on an analogous ground. Substantive discrimination can be made out by showing that the impugned law, in purpose or effect, perpetuates prejudice and disadvantage to members of a group on the basis of personal characteristics caught by section 15(1), or by showing that the disadvantage perpetuated by the law is based on a stereotype that does NOT correspond to the actual circumstances and characteristics of the claimant or claimant group. The court emphasized that the focus of a Ss 15 analysis is the ACTUAL impact of the differential treatment, and therefore the analysis requires a contextual consideration of the impact of the legislation or state action. After canvassing recent jurisprudence, the court cautioned against the formalistic use of comparator groups as part of this contextual assessment!! The court noted that the probative value of a comparative analysis varies depending on nature of the claim and, as a result, such an analysis is NOT always required in considering whether substantive discrimination is made out. In the claim at issue, the court concluded that the focus MUST be on the nature of the benefit. A contextual assessment revealed that the age-based benefit reduction did NOT breach Ss 15. The scheme was designed to benefit a number of different groups, and the benefit reductions reflected the reality that different groups of survivors have different needs. In support of its conclusion, the court noted that the impugned benefit was NOT meant to provide a long-term income scheme for older surviving spouses, as such a scheme is provided by a distinct pension benefit. The court explicitly rejected the dissenting opinion of Rowles J.A. of the BC CoA, whose narrower comparative analysis failed to consider the impugned benefit reductions within the context of the entire package of available benefits. Having found Ss 15(1) was not breached by benefit scheme, the court did NOT perform a section 1 analysis. This decision is part of a trend, reflected in earlier decisions such as Kapp, toward a MORE contextual analysis of the existence of substantive discrimination in assessing whether a legislative scheme is discriminatory. Held that elements of pension benefit schemes must be considered in the context of the scheme as a whole. The SDB was thus viewed as one part of a broad-based scheme addressing the competing interests of employees at different stages of their lives. The SCC described the SDB’s purpose with respect to older employees as financial assistance for last illness and death, and not as a long-term income stream DIFFERENT CONTEXT OF HOW BENEFIT IS TO APPLY THUS JUSTIFYING DISTINCTION BASED ON AGE
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CHAPTER 40: ENFORCEMENT OF RIGHTS
40.1 Supremacy clause (a) Section 52(1)
Section 52(1) of the CA, 1982 provides: Primacy of Constitution of Canada 52. (1) CC is supreme law of Canada, and any law that is inconsistent w/ provisions of CC is, to extent of the inconsistency, of no force or effect.
Since the Charter is part of the “CC”, any law that is inconsistent with the Charter is “of no force or effect”. Effect of the supremacy clause (Ss. 52(1)) is to preserve all pre-existing remedies for unconstitutional action and to extend those remedies to the Charter of Rights.
(b) Section 24(1) compared
In addition to Ss. 52(1), the Charter contains its own remedy clause. Ss. 24 (1) provides: Enforcement of guaranteed rights and freedoms 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
The differences btw Ss. 24(1) and Ss. 52(1) are as follows: 1. Ss. 24(1) is applicable ONLY to breaches of the Charter; Ss. 52(1) is applicable to the entire Constitution, including the Charter; 2. Ss. 24(1) is available ONLY to a person whose rights have been infringed; s 52(1) is available in some circumstances to persons whose rights have not been infringed; 3. Ss. 24(1) may be applied ONLY by a “court of competent jurisdiction”; s 52(1) may be applied by ANY court or tribunal with power to decide questions of law 4. Ss. 24(1) authorizes the award of a wide range of remedies; s 52(1) appears to authorize ONLY a holding of invalidity, leaving it to the general law to authorize the particular remedy 5. Ss. 24(1) confers a discretion on the court as to whether any remedy should be awarded; s 52(1) appears to confer NO discretion on the court, requiring the court to make a holding of invalidity if it concludes that a law or act is inconsistent with the Constitution.
Although Ss. 52(1) appears to impose no discretion on remedies, the courts have developed a number of variations on simple declaration of invalidity & assumed the power to choose from a range of possible remedies: 1. Nullification, ie, striking down (declaring invalid) the statute that is inconsistent with the CC; 2. Temporary validity, striking down BUT temp suspending coming into force of declaration of invalidity; 3. Severance, ie, holding only part of the statute is inconsistent with the CC, striking down only that part and severing it form the valid remainder; 4. Reading in, ie, adding words to a statute that is inconsistent with the CC so as to make the statute consistent with the CC and valid; 5. Reading down, ie, interpreting a statute that could be interpreted as inconsistent with the CC so that it is consistent; 6. Constitutional exemption, ie, creating exemption from a statute that is partly inconsistent with the Constitution so as to exclude from the statute the application that would be inconsistent with the CC.
(c) Nullification
IF law is held invalid, effect of holding is litigation will be determined as if unconstitutional law did NOT exist. IF the litigation is a criminal prosecution, the person charged under the invalid law will be entitled to be acquitted. IF the litigation is a civil action, the party relying on the invalid law will lose the legal basis for his or her case.
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(d) Temporary validity Re Manitoba Language Rights [1985]
SC assumed the power to hold that unconstitutional laws were to be given “temporary force and effect” to allow the Leg time to enact the required corrective leg’n. Manitoba’s Leg failed to enact laws in French & English, which had invalidated the entire Manitoba statute book. Court invoked the “rule of law” to keep the unconstitutional laws temporarily in force in order to avoid a vacuum of law in the province. (Hogg argues necessity better argument)
SC has employed this tactic in the following non-Charter cases: o o
R v Mercure [1988] (Sask); R v Paquette [1990] (Alta) – laws enacted in English only in Sask and AB Sinclair v Que [1992] – by-laws and other acts of a Quebec municipality that had been invalidly incorporated, but which had been functioning for 6 years.
And in the following Charter cases: o
o
o
R v Brydges [1990] – Lamer J for maj, after deciding that the police were under a constitutional duty to advise ALL persons under arrest of the availability of legal aid, allowed a “transition period” of 30 days to enable the police forces to prepare new cautions R v Askov [1990] – Cory J for the maj, after deciding that the District of Peel in Ontario had unreasonable systemic delay in its criminal court process, raised the possibility of “a transitional period of lenient treatment of systemic delay”. Ultimately, did not do so, which cause 1000s of charges to be stayed over the next few months. R v Feeney [1997] – SC held, by virtue of Ss. 8 of the Charter, a warrant was required to enter a dwelling house in order to make a lawful arrest. This changed CL. CC made NO provision for the issue of the entry warrant, BUT Sopinka J, for the maj, held that the provision should be “read in”. After the dec’n, the Crown applied for a stay of the req of the entry warrant for 6 month; stay granted, but expressed so as not to affect the disposition of the Feeney case.
The above cases did not involve unconstitutional legislation, BUT there is now a series of cases in which courts have maintained leg’n in force after holding it to be invalid for breach of the Charter. Dixon v BC (1989) (BCSC)
Held, provincial leg’n prescribing electoral districts for the province was unconstitutional; the disparity btw the voting populations of different districts was so great as to violate Ss. 3 of the Charter (right to vote). McLachlin CJ (CJ of BCSC) pointed out that the nullification of the leg’n would leave the province without the means of holding an election and in a system of responsible gov’t it was possible for an election to be called at any time. This qualified as “an emergency” comparable to that recognized in Re Manitoba Language Rights and a similar order was required. She held that the unconstitutional leg’n “will stay provisionally in place to avoid the constitutional crisis which would occur should a precipitate election be required”
R v Swain [1991] o o o o
Maj SC struck down the provisions of the CCd that required the detention in a psychiatric facility of a person acquitted on the ground of insanity (breach of Ss. 7 and 9 of the Charter) The invalidity of the provisions meant that a person acquitted on the ground of insanity would simply be released like any other accused who had been found not guilty at trial. Since a person acquitted on ground of insanity has usually committed serious offence and may well be a continued danger to the public, his/her release into the community would often involve serious risks. SC held that there was to be a 6 month “period of temporary validity” so that judges would not be compelled to release into the community all insanity acquittees
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R v Bain [1992]
Maj SC struck down the provisions of the CCd that allowed the Crown prosecutor, but NOT the accused, to “stand by” prospective jurors. The provisions were held to be contrary to the guarantee of a fair trial in Ss. 11(d) of the Charter, because they gave the Crown MORE influence than the accused in the selection of the jury. Here, the dec’n of invalidity was suspended for 6 months in order to “provide an opportunity for Parliament to remedy the situation if it considers it appropriate to do so”
Schachter v Canada [1992]
SC held that provision of Fed Unemployment Insurance Act offended the guarantee of equality in Ss. 15 of the Charter, B/C provision allowed MORE generous child care benefits to adoptive parents than to natural parents. This meant that the statute was “under-inclusive”, meaning that it failed to include a class of people (here, natural parents) that had an equality-based constitutional right to be included. Lamer CJ for the maj pointed out that striking down under-inclusive statute would have the perverse result of denying statutory benefits to deserving class covered by the statute (adoptive parents in this case), while granting no benefit to the class that was unconstitutionally excluded (natural parents in this case) He held that: “The logical remedy is to strike down BUT suspend declaration of invalidity to allow the gov’t to determine whether to cancel OR extend the benefits” Parl’t had by then amended Act, SC held that there was “no need for a declaration of invalidity or a suspension thereof”. SC granted no remedy at all to the unfortunate P, despite his success on the substantive issue of equality rights. However, the SC did order the Crown to pay his costs. Lamer CJ did recognize the radical character of a declaration of invalidity, saying it is a “serious interference” w/ legislative process, b/c delayed nullification “forces the matter back onto the legislative agenda at a time not of choosing of legislature and w/n time limits under which the legislature would not normally be forced to act”. He said that it was preferable for the Court to rectify the statute by severance or reading in. Where declaration of validity was to be made, a temporary suspension of the declaration should ONLY be made where the immediate striking down of the leg’n: 1. “would pose a danger to the public” (as in Swain); 2. “would threaten the rule of law” (as in the Manitoba Language case); or 3. “would result in the deprivation of benefits from deserving persons” (as in Schachter itself).
These guidelines have largely been ignored in subsequent cases, because a new rationale of “dialogue” has developed for the suspended declaration of invalidity. Examples of suspension of declaration of invalidity: o o o o o o o o
o
Re Eurig Estate [1998], SC invalidated Ont’s probate fees; ONLY reason cited for suspension of 6 months was the potential loss of revenue to the province Corbiere v Canada [1999], SC invalidated on-reserve residence requirements in Indian Act for Indian band elections; suspension 18 months to enable new provisions drafted after consultation w/ Aboriginal people UFCW v Kmart Canada [1999], SC invalidated an overbroad prohibition of secondary picketing; suspension for 6 months to allow time to draft new provisions Dunmore v Ontario [2001], SC invalidated provision excluding agricultural workers from Ontario’s labour relations statute; suspended for 18 months to allow time for amending leg’n to be drafted and enacted R v Guignard [2002], SC invalidated a by-law restricting advertising signs in the municipality; suspended for 6 months Trociuk v BC [2003], SC invalidated powers given to a mother but not a father in a provincial birth-registration law; suspended for 12 months Figueroa v Canada [2003], SC invalidated restrictions that disqualified small political parties from registration for purpose of federal elections; suspended for 12 months “in order to enable gov’t to comply w/ reasons” Health Services Bargaining case; SC invalidated a statute that increased health-care employers’ right to manage their unionized workforce; suspended for 12 months “to allow the gov’t to address the repercussions of this decision” Confédération des syndicates nationaux v Canada [2008], SC held that the employment insurance premiums levied during a 3-year period were invalid; suspended for 12 months “to allow the consequences of that invalidity to be rectified”
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A suspended declaration of invalidity is NOT to be confused with a prospective ruling. A suspended declaration of invalidity is delayed in coming into force, but if and when it comes into force it has the normal retroactive effect of a court order. Operates to invalidate unconstitutional statute from time of its enactment. If corrected by legislation (declaration won’t come into force at all), therefore, would think that the leg’n should be retroactive to give a remedy to litigants.
This was overlooked by the SC in: Canada v Hislop [2007]
Maj SC said that “the purpose of a suspended declaration of invalidity can be to facilitate the legislature’s function in crafting a prospective remedy” SC upheld a corrective statute that conferred survivor-pension rights on same-sex couples, but for the future ONLY, thus denying the claimants the past benefits to which they would have been entitled had the pension leg’n been enacted in compliance with Ss. 15 (equality).
(e) Severance o o o
Severance is the appropriate remedy when only part of the statute is held to be invalid and the rest can independently survive. Eg, the invalidity of the search and seizure power of the Competition Act does NOT entail the striking down of the entire Act: Hunter v Southam [1984] Eg, the invalidity of the felony-murder rule of the CCd does NOT entail the striking down of the entire CCd: R v Vaillancourt [1987]
R v Hess [1990]
CCd provision made it an offence for a male person to have intercourse with a female person under 14 yrs of age, “whether or not he believes that she is fourteen years of age or more”. The quoted language caused the offence to violate Ss. 7, because it eliminated the requirement of mens rea for an essential element of the offence, ie, the age of the girl. The constitutional problem could be corrected by excising the quoted words. The Court accordingly invoked the power of severance to strike out the unconstitutional words. The result was a significant change in the statutory provision, but the alternative would have been to strike down the entire offence, which would mean that intercourse with a girl under 14 would no longer be an offence, even for a man who was aware of the girl’s age.
Tétreault-Gadoury v Canada [1991] o o o o o o
o o o o
There was an age-65 bar in the Unemployment Insurance Act, which took the form of an exception to the general rules of entitlement. SC held this requirement was a breach of Ss. 15 IF the age bar were removed from the Act, the normal rules of entitlement would operate without any limitation as to age. Accordingly, the SC severed the age-65 bar from the Act. The effect was to require payment of unemployment insurance benefits to persons over 65. Here, the statutory scheme was “under-inclusive”, meaning that the scheme failed to include a class of people (those over 65) who had a constitutional right to be included. In such a case, the obvious remedy is to hold the statute unconstitutional, but this produces the harsh result of denying unemployment insurance benefits to persons under 65. Another alternative is to “extend” the statutory benefits to persons over 65 by striking out the words that made the statutory scheme under-inclusive. (Further alternative is a suspended declaration, as in Schachter) The remedy of extension directly alters the statutory scheme and requires new expenditures by the federal gov’t that have need been authorized by Parl’t. Thus a court faced with an under-inclusive statute has an unpalatable choice. IN choosing remedy of extension, Court in Tétreault-Gadoury influenced by the fact that by the time the case was decided Parl’t had repealed the age-bar (although not with retroactive effect so as to entitle the applicant)
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o
La Forest J for the Court said “there was no evidence put forth that the government could not afford to extend benefits to those over sixty-five” [with no supporting evidence]
Benner v Canada [1997]
Breach of Ss. 15 – Citizenship Act – drew distinction btw children of Canadian mothers born abroad before 1977 and fathers of such children. Mother – child had to apply for citizenship and pass a security test; father – child automatically entitled to citizenship on registration of birth in Canada SC could have imposed the more stringent mother-derived rule or the more liberal father-derived rule. SC chose father-derived automatic right, because the automatic right of citizenship was already the rule for children born abroad to Canadian parent of either sex after 1977. Therefore, the legislative scheme would be less disturbed by the extension of the automatic right of citizenship. The SC achieved that result be severing a number of phrases from the Act.
(f) Reading in Schacter v Canada (1992) o o o
o o o
Leg’n more generous to adoptive parents. There was no severable provision excluding natural parents from the child care benefits. SC held that it possessed the power not only to sever language, but ALSO to “read in” new language IF that were necessary to remedy a constitutional defect. The defect in Schachter could be cured by “reading in” the class of natural parents to the statutory provision benefiting adoptive parents. Lamer CJ, for unanimous SC on this issue, said that reading in would be a “legitimate remedy akin to severance” He said that it seems wrong that the “style of drafting” of a statute should be “the single critical factor in the determination of a remedy” However, Lamer CJ said that reading in would be appropriate ONLY in “the clearest of cases”, such as cases where: 1.
the addition of the excluded class was consistent with the legislative objective;
2.
there seemed to be little choice as to how to cure the constitutional defect;
3.
the reading in would not involve a substantial change in the cost or nature of the legislative scheme; and
4.
the alternative of striking down the under-inclusive provision would be an inferior remedy
SC held that reading in was NOT appropriate. The objective of the Act in making special provision for adoptive parents was NOT clear and it could NOT be assumed that the addition of natural parents to the provision would be consistent with the legislative objective. Furthermore, the reading in of natural parents would cause a major increase in the scope and cost of the child care benefits legislated by Parl’t. SC concluded “to read in natural parents would in these circumstances constitute a substantial intrusion into legislative domain” SC held that appropriate remedy was a suspended declaration of invalidity
Miron v Trudel [1995] o o o o
SC held that Ont’s Insurance Act, which stipulated terms of compulsory automobile insurance policies in province, contained an unconstitutional provision for accident benefit that was payable to “spouse” of an insured person. Def’n of spouse restricted to those legally married; SC held discriminated against claimant, who was a CL spouse of an insured person, on the basis of marital status. SC held that the appropriate remedy for the defect was to read into the def’n of spouse NEW language that would include the unconstitutionally-excluded class of CL spouses. Leg had already amended the leg’n, so the SC ordered that the language of the subsequent amendment be made retroactive to cover the claimant’s claim of spousal status
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*** Vriend v Alberta [1998]
Alberta’s Individual Rights Protection Act prohibited discrimination in employment, accommodation, public facilities and the supply of goods and services. P had been discharged from employment by reason of homosexuality. Attempt to seek remedy under Act from AB’s HR Commission unsuccessful b/c Act, while prohibiting discrimination on a variety of grounds, did NOT cover discrimination based on sexual orientation. SC agreed w/ P that omission of sexual orientation from Act denied P’s equality rights under the Charter. SC ordered that the constitutional defect be cured by reading into the statutory list of grounds of prohibited discrimination the words “sexual orientation”. According to Iacobucci J, for the maj, the addition of this language to the Act would be consistent with the objective of the Act, could be accomplished with precision, would not greatly add to the cost of administering the Act and would be a less intrusive remedy than striking down the entire Act. [Schacter Criteria]
Miron and Vriend are BOTH examples of the remedy of “extension”. In these cases, as in Tétreault-Gadoury, the SC had to review an “under-inclusive” statute, ie, a statute that conferred a benefit on a class that failed to include all persons who had an equality-based right to be included. In Tétreault-Gadoury, however, the extension could be accomplished by severing words rather than reading in, as was necessary in Miron and Vriend. Reading in and severance are obviously intrusive, BUT the alternative of striking down the scheme is ALSO intrusive. Nova Scotia v Phillips [(1986) (NSCA) – NS CoA held that a welfare benefit that was available only to single mothers was in breach of Ss. 15, because it was NOT available to single fathers as well. Being unwilling to extend the statutory provision by reading in the excluded group of single fathers, the Court was driven to nullify the provision, which denied the benefit to single mothers!!! This restored equality, but it was obviously an ironic and harsh result. Another option is suspended declaration, which is also a major intrusion into the legislative branch. Nevertheless, whatever remedy is chosen, if the legislators are not content with the scheme as amended by the court, it can always enact a new scheme. The democratic legislative process retains the last word. (g) Reading down
Appropriate remedy when statute will bear 2 interpretations, one of which would offend Charter and the other not. In that case, a court will hold that the latter interpretation, which is normally the narrower one, is the correct one. CONTRASTED w/ “Reading in” – reading in is NOT a technique of interpretation, but rather of judicial amendment, altering the statute to make it conform to the Constitution.
(h) Constitutional exemption R v Big M Drug Mart [1985]; R v Edwards Books and Art [1986] SC has occasionally indicated, obiter, that it might be willing to grant a “constitutional exemption” form “otherwise valid legislation” that would be unconstitutional in its application to particular individuals or groups Sunday closing, this would seem to indicate that a prohibition of retailing on a Sunday COULD BE salvaged by reading into the legislation an exemption for those who observed some day other than Sunday as the Sabbath.
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R v Seaboyer [1991]
Rape shield provision of CCd – restricting evidence that accused can lead of the complainant’s past sexual activity Maj SC held that in some situations the rape-shield section would deprive an accused of the right to make full answer and defence. SC held that this made the section unconstitutional and McLachlin J, for the maj, refused to salvage the section through the doctrine of constitutional exemption. The exemption would operate by importing into the section a discretionary power of dispensation by the TJ. However, since Parl’t deliberately chose to exclude any discretion on the part of the TJ, the importation into the section of judicial discretion, “while perhaps saving the law in one sense, dramatically alters it in another”. McLachlin CJ did make clear that the solution “May be appropriate in some other case”
Possibility of using solution for mandatory minimum sentences was definitively rejected by a unanimous SC in R v Ferguson [2008]; instead the SC strikes down the provision if in the rare hypothetic case it would be cruel and unusual: R v Smith [1987]
R v Ferguson (2008) o o
D was a police officer who was attacked by a violent prisoner whom he was trying to put into a cell. In the course of the struggle that ensued, the D’s gun went off and killed the prisoner. The D was acquitted of murder, BUT convicted of manslaughter. CCd imposed a minimum sentence of 4 years for manslaughter with a firearm. However, the TJ took the view that the sentence was grossly disproportionate punishment on these facts. W/o striking down the minimum sentence, the TJ held that the D was entitled to a constitutional exemption from the sentence and he imposed a sentence of 2 years less a day. SC disagreed, holding that there was “no basis” for concluding that the 4-year sentence was grossly disproportionate “on the facts of this case” As a result there was no need to consider the availability of a constitutional exemption. However, the SC went on to do so anyway and held that a constitutional exemption from a minimum sentence was NOT a remedy that was available to a D in a rare, exceptional or unusual case where the minimum sentence would be grossly disproportionate.
o o o o o
o
The remedy in such a case was to strike down the law in its entirety. SC affirmed Smith that, if a minimum-sentence law is grossly disproportionate in any of its applications, however rare, exceptional or unusual, the duty of the sentencing court is to strike down the law. The overbroad law CANNOT be salvaged by creating a constitutional exemption for the particular rare case. The effect of creating an exemption would be “to read in a discretion to a provision where Parl’t clearly intended to exclude discretion” and this would be “an inappropriate intrusion into the legislative sphere” McLachlin CJ was also concerned that ROL values of “certainty, accessibility, intelligibility, clarity and predictability” would be offended if the minimum sentence remained in the statute book, but was in fact subject to discretionary case-by-case exceptions: as constitutional exemptions were granted, the law in the statute book would “increasingly diverge from the law as applied”
o o o
(i) Reconstruction
There is a point at which a court will recognize that an unconstitutional statute CANNOT be salvaged except by changes that are too profound, too policy-laden and too controversial to be carried out by a court.
Hunter v Southam [1984]
SC held that the search and seizure power in the Competition Act was unconstitutional under Ss. 8 of the Charter, b/c the Act did NOT stipulate a standard of reasonable and probable cause for the issue of a search warrant and did NOT invest an impartial judicial body with the power to issue the warrant. Dickson J, for the Court, refused to salvage the provision by reading in the required standards; he asserted that “it is the legislature’s responsibility to enact legislation that embodies appropriate safeguards to comply with the CC’s requirements” SC therefore struck down the statutory provision, leaving Parliament to enact an amendment that would satisfy the constitutional requirements.
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Singh v Minister of Emplt & Immgt [1985]
SC held that the refugee-determination provisions of the Immigration Act were unconstitutional, because they did not provide for a hearing by an official with power to decide. Beetz J said there was “probably more than one way to remedy the constitutional shortcomings of the Immigration Act” and it was “not the function of this Court to re-write the Act”. There were occasions when “crude surgery” could be performed by the Court, “but not plastic or re-constructive surgery” SC struck down the refugee-determination procedure, leaving it to Parl’t to come up with new provisions.
Rocket v Royal College of Dental Surgeons [1990]
SC held that a prohibition on advertising by dentists, w/ some exceptions, was a breach of freedom of expression and was not saved by Ss. 1 SC made clear that SOME restrictions on professional advertising would be saved by Ss. 1, but it still struck the prohibition down in its entirety. McLachlin J said that it was “for legislators” to determine what kinds of advertising should be prohibited
Canadian Foundation for Children, Youth and the Law v Canada [2004]
Section 43 CCd – defence to assault charge for teachers and parents who apply “reasonable” force “by way of correction” against children in their charge. Challenged based on void for vagueness doctrine of Ss. 7 McLachlin CJ, for the maj, issued a new “interpretation” of the provision. Ignoring the lower-court decisions to the contrary, she held that the provision “exempts from criminal sanction ONLY minor corrective force of a transitory and trifling nature” This excluded ALL “harmful conduct”, which meant that the provision did NOT apply to corporal punishment of children under two or corporal punishment of teenagers! It did NOT apply to discipline by the use of objects such as belts or rulers or by blows or slaps to the head. So interpreted, she held that the provision established a sufficiently clear standard to avoid the charge of unconstitutional vagueness. Arbour J, dissenting, objected that the CJ was not engaged in “mere interpretation”, but had drafted “an entirely new provision”
Montreal v 2952-1366 Quebec [2005]
A city by-law prohibited noise produced by sound equipment that could be heard outside a building. The by-law included no stipulations as to the level of noise or the impact on neighbours or passers-by. The by-law was a limit on freedom of expression, BUT the majority upheld it under Ss. 1 by interpreting the by-law as applying ONLY to “noise that adversely affects the enjoyment of the environment” Binnie J, dissenting, pointed out that the by-law by its terms purported to prohibit “any audible signal from ‘sound equipment’ without regard to the potential, if any, for disturbance or annoyance” and he would have held that this was too broad to be a reasonable limit under Ss. 1 He described the majority’s “interpretation” of the by-law as “radical surgery” which had left the realm of interpretation and entered the realm of amendment He said that it would be “More respectful of our place in the constitutional scheme” to declare the by-law invalid and “send it back to the legislators for consideration and possible re-enactment”
The SC will re-draft where the offending law is a rule of the CL. R v Swain [1991]
CL rule allowed a Crown prosecutor in a criminal trial to adduce evidence of the accused’s insanity AGAINST the wish of the accused. SC held this rule violated Ss. 7 of the Charter, because the evidence of insanity, IF believed, would limit the right of the accused to conduct his/her own defence. SC held that the rule would be saved by Ss. 1 IF the issue of insanity were raised by the Crown in a separate hearing, in front of the same trier of fact, which would take place after the conclusion of the criminal trial and which would ONLY take place if the accused had been found otherwise guilty of the offence charged. SC held that it was NOT nec to strike down the existing law. B/c existing law was a rule of the judge-made CL, not statute, the SC had the power to replace the existing rule with a new rule that complied with the Charter.
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(j) Limitation of actions
An action or other form of proceeding for a declaration that a statute is unconstitutional is NOT subject to any limitation period. IF the reviewing court holds that the statute is unconstitutional, THEN the statute will be declared to have been unconstitutional from its inception and the newly discovered rights and obligations that flow from the retroactive disappearance of the statute will take effect automatically. If the P needs additional relief, such as damages or an injunction, those “personal remedies”, although based on a constitutional ground, will be subject to any applicable statute of limitations of general application.
40.2 Remedy clause (a) Section 24(1) Enforcement of guaranteed rights and freedoms 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (b) Applicable to Charter ONLY
Ss 24 is NOT a remedy for unconstitutional action in general, which may ONLY be challenged by methods referred to in the discussion of the supremacy clause. A Charter right is: o Part of “the supreme law of Canada” to which inconsistent laws MUST yield (Ss. 52(1)); o It becomes entrenched (alterable ONLY by the process of constitutional amendment) (Ss. 52(3)); and o It becomes enforceable under Ss. 24
(c) Non-exclusive remedy o o
o o o o
Ss 24(1) is NOT exclusive remedy for breach of the Charter; the supremacy clause of Ss. 52(1) is ALSO available. Whenever the validity of a statute (or other official act) is relevant to the outcome of a dispute, the court that is seized of the dispute has the power and the duty to determine whether the statute (or other act) is valid. o Eg, a court trying a criminal case is obliged to rule on the validity of the statute creating the offence if the D argues that the statute violates the Charter; if the court accepts the D’s argument, THEN the court will acquit the defendant on the ground that the offence charged is NOT known to the law Here, the ruling of invalidity is authorized by Ss. 52(1) and the remedy of acquittal is authorized by the CCd. Section 24(1) is NOT needed in such a case and it is not applicable. Section 24(1) is not needed to provide a remedy for a Charter infringement where a holding of invalidity is all that the applicant needs in order to obtain an appropriate remedy that is available under the general law. Section 24(1) is needed ONLY where a remedy provided by the general law is NOT available for some reason or will not provide satisfactory redress. Generally speaking, it will be the declaration of invalidity under Ss. 52(1) that provides the remedy for laws that violate a Charter right (or indeed any constitutional right), while Ss. 24(1) provides the remedy for gov’t acts that violate an individual’s Charter right.
R v Ferguson (2008) Ss 24(1) provides a “personal remedy against unconstitutional government action”. That is why the only person who has standing to seek a remedy under Ss. 24(1) is the very person whose Charter right has been infringed. R v Demers [2004] o o o o
BOTH remedies were needed to give full relief to the claimant. SC held that the provisions of the CCd respecting accused person who were found permanently unfit to stand trial were unconstitutional for overbreadth. The SC suspended the declaration of invalidity for a period of one year to permit Parl’t to enact a new law. That, of course, was a remedy under Ss. 52(1) BUT the SC was concerned that, IF Parl’t failed to act, persons unfit to stand trial would STILL be subject to criminal charges and to the restrictions on their liberty that follow from criminal charges
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o
SC therefore added a 2nd remedy. Acting under Ss. 24(1), the SC ordered that, in the event of Parl’t not acting within a year, those persons permanently unfit to stand trial who were found to be no danger to the public should have their proceedings stayed.
(d) Standing Section 24(1) contemplates that it is the applicant’s own rights that have been infringed or denied. R v Edwards [1996] SC held that an accused could not complain about unreasonable search GF’s apartment, even though the search yielded evidence (a cache of drugs) that was relied upon by the Crown as part of its case against the accused. Since the accused had NO reasonable expectation of privacy in someone else’s apartment, the search was NOT a breach of the accused’s Ss. 8 right to be secure against unreasonable search or seizure. ONLY the tenant of the apartment could pursue a remedy under Ss. 24 R v Big M Drug Mart [1985]
A corporation CANNOT obtain a remedy under Ss. 24(1) for a denial of freedom of religion, because a corporation CANNOT hold a religious belief. BUT, Big M (a corp) COULD defend a criminal charge under a Sunday closing law on the ground that the law was a denial of the freedom of religion of individuals. A D to a criminal charge was at liberty to raise any constitutional defect in the law under which the charge is laid, b/c “no one can be convicted of an offence under an unconstitutional law’. However, the corp had NO standing under Ss. 24(1) to challenge law. BUT, this was irrelevant. The challenge was based on supremacy clause of Ss. 52(1): “Where, as here, the challenge is based on the unconstitutionality of legislation, recourse to Ss. 24 is unnecessary and the particular effect on the challenged party is irrelevant”
Minister of Justice v Borowski [1981]
Sometimes a person, motivated by public interest, wishes to make a Charter challenge to a statute that does not even apply to the challenger. This CANNOT be done under Ss. 24(1) HOWEVER, it CAN be done under Ss. 52(1) SC granted standing to an anti-abortion activist to bring an action for a declaration that the CCd’s abortion provisions were unconstitutional. Those provisions could NEVER actually be applied to the applicant, who was neither a doctor nor a woman, but he was granted standing nevertheless. This illustrates that the availability of a declaration of invalidity under Ss. 52(1) is governed by more generous standing requirements than are the remedies authorized by Ss. 24(1)
(e) Apprehended infringements o o
Section 24(1) does NOT authorize an application in respect of a merely apprehended future infringement. However, the imminent threat of a Charter violation WILL satisfy Ss. 24(1)
Que Ass of Protestant School Bds v AG Que (1982) (Que SC) (decn affirmed in CA and SC, BUT no comment on remedial issue) o Ss. 24(1) will authorize a remedy for English-speaking parents who are denied by statute their Charter right under Ss. 23 to send their children to an English-speaking school, EVEN IF the application is made before the school year has started and therefore before any parent’s child has actually been refused admission o It is unclear whether Ss. 24(1) will extend as far as the general remedies of declaration and injunction, which are both available in respect of threatened violations of rights. R v Demers (2004)
Suspended declaration of invalidity – CCd provisions dealing with accused persons who are unfit to stand trial. Second remedy – IF Parl’t did NOT act, persons who were permanently unfit to stand trial and who had been found NOT to be a danger to the public should receive a stay of proceedings. SC obviously feared that the infringement might occur in the future.
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(f) Court of competent jurisdiction o o
Section 24(1)’s remedies may be granted ONLY by a “court of competent jurisdiction” o Ss. 52 finding of invalidity is available to ANY court or tribunal with power to decide questions of law. The meaning of “court of competent jurisdiction” is relevant ONLY to the availability of a remedy under Ss. 24(1)
R v Rahey [1987]; R v Smith [1989] o o o
A superior court, which is a court of general jurisdiction, is ALWAYS a court of competent jurisdiction An application for a remedy under Ss. 24(1), then, can ALWAYS be made to a superior court. Even after trial commenced, an application to a superior court may be appropriate if it is the action of the TJ that is the subject of the complaint; eg, when the TJ has failed to render a decision on a motion for a directed verdict
Doucet-Boudreau v Nova Scotia [2003] o Moreover, the power of a superior court to grant a remedy under Ss. 24(1) CANNOT be limited by statute However, if, eg, an applicant interrupted a trial in an inferior court in order to bring a Ss. 24(1) application before a superior court, the superior court should normally refuse the application on the ground that the trial court is the most convenient forum to hear the Ss. 24(1) application. R v 974649 [2001] o A trial court, even if it is not a superior court, is a court of competent jurisdiction to hear an application for a remedy that relates to the conduct of the trial, eg, the exclusion of evidence that has been obtained in violation of the Charter or a stay of proceedings that have gone on for an unreasonable time or an award of costs against the Crown for failure to make timely disclosure to the defence o If a separate application were made to a superior court, the superior court should generally decline to grant any remedy, because it is the TJ who is in the best position to assess what is the remedy that is just and appropriate o However, a D to a criminal charge who has not been given a trial date, and is not likely to get one for a long time, has no trial court within reach and therefore may apply to a superior court to stay the proceedings on the ground of unreasonable delay R v Hynes [2001] SC held that judge conducting a preliminary inquiry into a criminal charge is NOT a court of competent jurisdiction R v Smith [1989] o o
This means that a preliminary inquiry judge has no power to stay proceedings on the ground of unreasonable delay under Ss. 11(b) and NO power to exclude evidence on the ground that the evidence was obtained in breach of the Charter In the case where the D claims that the trial of a criminal charge has been unreasonably delayed because too much time has elapsed even before the prelim has been held, the D can make a separate application to a superior court to stay the proceedings
An administrative tribunal is a court of competent jurisdiction IF its constituent state gave it power over: 1.
the parties to the dispute;
2.
the subject matter of the dispute; and
3. the Charter remedy that was sought: Weber v Ont Hydro [1995] The above proposition was reviewed in the following case because there was some inconsistency with tribunal’s authority under Ss. 52: R v Conway [2010]
To reconcile the differences/inconsistencies, the SC held that an administrative tribunal with authority to decide questions of law was a court of competent jurisdiction for the purpose of Ss. 24 (UNLESS Charter issues had been clearly withdrawn from the tribunal’s jurisdiction). It was the authority to decide questions of law that qualified an administrative tribunal to decide constitutional questions, whether those questions arose under Ss. 24 or Ss. 52
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Here, the applicant had in 1984 been charged with a crime and found not guilty by reason of insanity. The CCd required that he be incarcerated in mental health facilities subject to regular reviews of his case by the Ontario Review Board, which was an administrative tribunal established by the CCd for the province of Ontario with supervisory jurisdiction over NCR patients. The Board held an annual hearing for each patient. In 2006, in advance of his annual review by the Board, the applicant applied to the Board under Ss. 24 of the Charter for an absolute discharge from custody on the ground that his Charter rights had been infringed. The application was initially denied by the Board (and on appeal by the Ont CA), using the 3 part test from Weber: the Board lacked the power to grant the remedy sought.
The SC, applying its new test, that the Board was a court of competent jurisdiction because it was authorized by the CCd to decide questions of law. However, the Court agreed that the Board lacked the power to grant the remedy sought and therefore dismissed the applicant’s appeal. Once it is determined that an administrative tribunal is a court of competent jurisdiction, the remaining question is whether the tribunal can grant the remedy sought. SC held that proper approach for administrative tribunals & inferior courts is to confine it to its normal range of remedies (rather than “such remedy as court considers appropriate and just in the circumstances”: Ss. 24(1)), so that Charter claim does NOT move it beyond its statutory mandate, which alone is sphere of its undoubted competence. The tribunal did NOT need to have explicit statutory authority over the precise remedy sought, but the tribunal was restricted to “the kind of remedy that legislature intended would fit w/n statutory framework of particular tribunal”. In this case, the CCd imposed some restrictions on the remedial powers of a Review Board. In particular, Board was explicitly prohibited from granting an absolute discharge to a NCR patient who had been found by the Board to be “a significant threat to the safety of the public”. The Board had found that the applicant WAS a significant threat to the safety of the public and therefore the Board had NO statutory power to grant an absolute discharge. The applicant argued that Ss. 24 freed the Board from statutory limits to its jurisdiction, BUT the Court disagreed. The withdrawal of the power to grant an absolute discharge to NCR patient who was dangerous was consistent with the Board’s mandates to protect public safety and to adequately prepare NCR patients for their reintegration into society. For the Board to grant such a remedy under Ss. 24 “would be a clear contradiction of Parliament’s intent”. The application for an absolute discharge had to be denied.
(g) Range of remedies
Limited by phrase “such remedy as the court considers appropriate and just in the circumstances”. The courts have usually insisted that existing procedures be employed for Ss. 24(1) applications, so that well-understood procedural values are not ignored simply because a constitutional point is in issue. Eg, applications respecting the conduct of a trial should normally be made to the TJ, who is in the best position to determine whether a trial should be delayed or interrupted. Subject to appropriate & just qualification, there is NO limit to remedies that may be ordered under Ss. 24(1). They include “defensive” remedies, where the court nullifies or stops some law or act, eg, by dismissing a charge, staying a proceeding, quashing a search warrant or a committal or a conviction, enjoining an act or declaring a law to be invalid. The exclusion of evidence obtained in breach of the Charter also falls into the defensive category, BUT the exclusion of evidence is subject to a special set of rules under Ss. 24(2). The remedies also include “affirmative” remedies, such as: o ordering a province to provide state-funded counsel to an indigent litigant: New Brunswick v G(J) [1999]; o ordering the return of goods improperly seized: RE Chapman (1984) (CA); or o
a mandatory injunction requiring positive action.
It has been suggested that the court’s remedial discretion should be governed by 4 factors: 1.
the redress of the wrong suffered by the applicant;
2.
the encouragement of future compliance with the Constitution;
3.
the avoidance of unnecessary interference with the exercise of governmental power; and
4.
the ability of the court to administer the remedy awarded.
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(g.1) Declaration Re Gamble [1988]; Vancouver v Ward [2010] A simple declaration that the gov’t is in default of its Charter duties would almost invariably be obeyed and would therefore usually be an effective remedy Especially appropriate if court not sure what would be the appropriate remedy by gov’t Canada v Khadr [2010]
A Canadian citizen, who was being held for trial by the US at Guantanamo Bay, applied to the Federal Court for an order that Canada request the US to return him to Canada. The accused was alleged to have killed an American soldier in Afghanistan and the evidence against him included the record of interviews by Canadian officials. SC held that the Canadian officials had acted in breach of the Charter and that the breach contributed to the accused’s ongoing detention by the US. BUT the SC refused to order Canada to request the return of the accused to Canada. SC recognized that making of representations to foreign gov’ts was a complex matter upon which the courts should defer to executive branch. SC granted only a declaration that the accused’s Charter rights had been infringed, thereby leaving to the gov’t “a measure of discretion in deciding how best to respond”
(g.2) Damages *** Vancouver v Ward [2010] - Unanimous
The P, a lawyer, was mistakenly identified by the police as a person who was planning to throw a pie at the PM, who was attending a public ceremony in Vancouver. City police confronted P and handcuffed him and when he protested and created as scene, they arrested him for a breach of the peace and took him to a police lock-up, where provincial corrections officers took charge of him. Strip-searched & held him in a cell for more than four hours before releasing him without laying any charges. During this time, the police also seized his car, but realized that they did not have enough evidence to obtain a warrant to search it and returned it to him when he was released. The P sued and at trial was awarded damages under Ss. 24(1) of $5,000 from the province for the strip search in breach of Ss. 8 (unreasonable search or seizure) and of $100 from the city for the seizure of the car (another breach of Ss. 8). (He was also awarded damages of $5,000 from the city for the tort of wrongful imprisonment). The awards of Charter damages (not the tort damages) were appealed on up to the SC, which agreed that the P’s rights under Ss. 8 had been infringed and upheld the award of damages for the strip search, BUT held that a declaration was a sufficient remedy for the seizure of the car. McLachlin CJ for the Court held that damages was an appropriate and just remedy for a breach of the Charter when they served a useful function, ie, to: 1.
compensate the P for his loss;
2.
vindicate Charter rights; or
3.
deter future Charter breaches.
Because vindication and deterrence pursued societal goals, Charter damages under Ss. 24(1) would NOT necessarily be the same as CL damages (which are purely compensatory). Even when no personal loss was suffered, a damages award might be appropriate and just under Ss. 24(1) SC upheld TJ’s award of $5,000 damages for the strip search on ground that his humiliating experience should receive some compensation and that the functions of vindication and deterrence also justified some damages. However, the SC showed NO sympathy for merely symbolic awards of damages and reversed TJ’s award of $100 for the seizure of P’s car: this caused the P NO harm, the car was NOT searched and, although the seizure was a breach of Ss. 8, it was NOT a serious one. For that breach, the remedy of a declaration, which was sufficient to fulfil the functions of vindication and deterrence, was all that should be granted. However, even when damages are “functionally required” to fulfil one or more of the objects of compensation, vindication or deterrence, there could be countervailing considerations that would render an award of damages inappropriate and unjust.
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Eg, the availability of alternative remedies. “The Charter entered an existent remedial area which already housed tools to correct violative state conduct”. Here, this was illustrated with a simple (yet sufficient) declaration for the seizure of the car. Further, IF private actions in tort would adequately address the Charter breach, THEN ‘Charter damages would be duplicative and should not be awarded. The CJ said that a tort claim could be joined with a Charter claim and it would be “useful” for the court to consider the tort claim FIRST in case it rendered recourse to Ss. 24(1) unnecessary; BUT it was NOT “essential” to exhaust the tort remedies first. Here, the P’s tort action for wrongful imprisonment was successful and yielded damages of $5,000 for his detention in the police lock-up; on appeal, he did NOT pursue any additional Charter damages for the detention. No tort damages were awarded for the strip search or the seizure for the car and so no issue of duplicative remedies arose for those causes of action.
Damages are awarded based on a 2 stage, multi-part test:
First, it will be for the plaintiff to establish that his/her Charter rights have been infringed. Second, and more substantially, the plaintiff MUST demonstrate that damages will fulfill one or more of the objects of Ss. 24(1) damages: o (1) compensating the claimant for loss and suffering; o (2) vindicating the right by emphasizing its importance and the gravity of the breach; and o (3) deterring state agents from committing future breaches. The claimant need NOT show that she has exhausted ALL other resources; IF the plaintiff can show a breach and a prima facie case that damages are “appropriate and just”, the burden will then shift to the state to establish countervailing factors that demonstrate that damages are inappropriate or unjust.
Mackin v NB [2002] Another concern is the “concern for effective governance”. No damages are available “for the harm suffered as the result of the mere enactment or application of a law that is subsequently held to be unconstitutional” Guimond v Que [1996] Ss. 24(1) does NOT authorize damages for harm caused by gov’t officials who act in good faith and w/o negligence under the “claim of right” of statute subsequently held to be unconstitutional for Charter breach According to McLachlin CJ, these doctrines are exemplary of the principle of good governance, because damages awards would “chill the exercise of policy-making discretion” and deter public officials from carrying out their duties under apparently valid statutes McLachlin CJ described damages under Ss. 24(1) as “a unique public law remedy”; it was NOT “a private law action in the nature of a tort claim”. For one thing, the Charter action “lies against the state and NOT against individual actors”. Since individual actors are not bound by the Charter, they are not liable for damages under Ss. 24(1) and the crown is not liable vicariously for their Charter breaches. The Crown is liable directly (not vicariously) for breaches of the Charter. Any personal liability of individual actors such as police or corrections officers would have to be found in the private law of tort and, if so found, the Crown would be vicariously liable for the tort, provided it was committed by an official in the course of employment. (g.3) Costs Default in the Crown’s Charter obligation to make pre-trial disclosure to a criminal D has often been sanctioned by an award of costs against the Crown. A stay of proceedings would normally be too severe a sanction and a mere adjournment not severe enough. R v 974649 [2001] The SC has warned that this remedy was appropriate and just only in exceptional cases: “costs awards will not flow from every failure to disclose in a timely fashion”, but are restricted to “circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution” (g.4) Exclusion of evidence
Evidence that has been obtained in compliance with the Charter is NOT covered by Ss. 24(2) (exclusion of evidence) and yet in SOME situations the exclusion of the evidence WILL be an appropriate and just remedy under Ss. 24(1).
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R v White [1999]
An accident report, given to the police by the accused under the (valid) compulsion of a provincial law that REQ reporting of all serious traffic accidents, was excluded from accused’s trial for leaving the scene of the accident. The exclusion was ordered under Ss. 24(1) on the ground that the admission of the accused’s report would offend one of the principles of fundamental justice under Ss. 7, namely, the principle against self-incrimination.
R v Bjelland [2009] o o o o o o o
o o
In criminal trial for drug offences, Crown, after making timely disclosure to the defence of what was thought to be most of the evidence, discovered and disclosed further evidence shortly before the date set for trial. The TJ excluded the late-breaking evidence for breach of the Charter obligation of timely disclosure (under Ss 7: R v Stinchcombe [1991]). The trial proceeded and the accused was acquitted. The SC ordered that the evidence be admitted and a new trial held. Rothstein J, for the maj, held that the TJ erred in excluding the evidence when the less drastic remedy of an adjournment was available as a remedy under Ss. 24(1). Because the exclusion of relevant evidence impairs the truth-seeking function of a trial, the NORMAL remedy for a Crown default in timely disclosure should be an adjournment of the trial to give the defence time to consider the new evidence. The exclusion of the new evidence should be ordered ONLY in exceptional cases affecting the fairness of the trial or the integrity of the justice system. Eg of exceptional cases would be where the postponement of the trial would lead to a breach of the accused’s Charter right to be tried within a reasonable time or where the accused was in pre- trial custody and the postponement of the trial would significantly prolong the custody. Another possible (but less clear) example would be where the Crown had abused the process by deliberately withholding the evidence from the accused. None of these exceptional circumstances were present here, so the prejudice to the accused would have been cured by the less drastic remedy of postponing the trial.
(g.5) Remedies outside Ss 24(1) R v Nasogaluak [2010] o
o
o o o
o
The accused had pleaded guilty and been convicted of impaired driving and fleeing from the police, offences that would normally attract a sentence of imprisonment. Instead, the TJ granted him a 12-month conditional discharge coupled with a 12-month driving prohibition. The police had used excessive force in making the arrest and in preventing flight and they had inflicted injuries on the accused. The TJ held that the police actions were a breach of the accused’s Ss. 7 right to security of the person and a reduced sentence was an appropriate and just remedy for the breach under Ss. 24(1) SC agreed that there had been a breach of Ss. 7 and that it justified a reduction of the accused’s sentence. However, SC held that the TJ had been wrong to rely on Ss. 24(1) as the justification for the reduced sentence. Sentence reduction was NOT an appropriate remedy under Ss. 24(1), except in the exceptional case where it was the “sole effective remedy” for a Charter breach However, under normal sentencing principles, a Charter breach that related to the circumstances of the offence or the offender could properly be taken into account in sentencing. Even state misconduct that did not amount to a Charter breach could be taken into account in sentencing. Here, the police breach of the accused’s Charter rights was properly taken into account in fixing the accused’s sentence without the need to invoke Ss. 24(1). The SC upheld the reduced sentence.
(h) Supervision of court orders Doucet-Boudreau v Nova Scotia [2003] o o o
A superior-court judge in NS, acting on the application of French-speaking parents, found that in 5 districts of the province, the numbers of children of French-speaking parents warranted French- language schools. Under the authority of Ss. 24(1), judge ordered that 5 schools be built and that programs of instruction be developed for each school. Stipulated dates by which each school should be built and its curriculum developed. He also declared that “the Court shall retain jurisdiction to hear reports from [the government] respecting [the government’s] compliance with the order”. Pursuant to this, the judge held a series of reporting hearings throughout the period of construction of the schools, at which the government was required to file affidavits as to the progress of its work, the parents were permitted to file affidavits of rebuttal and all deponents were subject to cross-examination.
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o o o o o o o o o o
FIRST time a Canadian court had made provision for judicial supervision of compliance with a Ss. 24(1) order. AG of NS appealed the provision for judicial supervision SC majority (5:4) upheld the provision for judicial supervision. Iacobucci and Arbour JJ, for the maj, pointed out that the Charter was supposed to receive a large and liberal construction and this applied to the remedial power of Ss. 24(1) no less than to the substantive rights. Re “appropriate and just in the circumstances”, they said it was “difficult to imagine language which could give the court a wider and less fettered discretion” Remedies under Ss. 24(1) could include “novel and creative features when compared with traditional and historical remedial practice” The majority repeated the TJ’s concerns about the danger of progressive assimilation of the French-speaking majority in the province and past delays in developing French-language schools. TJ concerned that, w/o the reporting requirement, the order to build the schools would be “ineffective” The supervisory order was appropriate and just in the circumstances and upheld as a valid exercise of Ss. 24(1). The minority thought the judge was functus officio after the order to build the school was made.
Hogg argues minority view right that such remedy should be last resort. ONLY where governmental non-compliance with judicial orders does such last resort course of action have merit Abdelrazik v Canada (2009) [2010] (Federal Court) (Zinn J) o o o o o
o o
o o
A Canadian citizen, who had made a visit to Sudan (the land of his birth), was arrested without charge, imprisoned for several years and tortured by the Sudanese authorities. When he was released, his Canadian passport had expired and efforts to obtain a new one, even just a temporary one to get him back home to Montreal to his family, all proved unavailing. The applicant brought an application for a declaration that his right to enter Canada under Ss. 6(1) of the Charter had been violated and for an appropriate and just remedy for the violation under Ss. 24(1) The Fed Ct found that the Canadian gov’t had been complicit in the applicant’s arrest and imprisonment (but not in the torture) by Sudan. The FC also found that, after the applicant’s release from prison in Sudan, when he was staying in the Canadian embassy, the Canadian gov’t in Ottawa, while giving him assurances of aid and comfort, had actually been doing its best to block his return to Canada. SC held that applicant had a constitutional right to return to Cdn under Ss. 6(1) & that the right had been violated. The FC ordered that an emergency passport be issued to enable the applicant to return to Canada. But, based on the past history of governmental bad faith in dealing with the applicant, the FC also ordered that the applicant be brought before the FC after his return for the purpose of satisfying the FC that he had in fact returned to Canada. (There was also another reason for the order: the applicant was the subject of a UN travel ban to which an exception was the fulfillment of a “judicial process” And, in case that did not happen in a timely fashion, the Court reserved the right “to issue further orders as may be required to safely return Mr Abdelrazik to Canada”.
(i) Appeals Mills v The Queen [1986] o Section 24(1) does NOT authorize an appeal from the decision of a court of competent jurisdiction Where there is NO existing right of appeal, as will often be the case in applications in criminal proceedings before the trial is over, there will be NO appeal from the Charter ruling by the court of competent jurisdiction. Knox Contracting v Canada [1990] o o
Maj SC held that there was NO appeal from refusal by a judge to quash search warrant issued under Income Tax Act. SC held that, because neither the Income Tax Act nor the Criminal Code provided for any right of appeal, there was no right of appeal, despite the fact that the applicant claimed that the warrant had been issued in breach of the Charter.
Kourtessis v Minister of National Revenue [1993] o o
The applicant applied for a declaration that a statutory provision in the Income Tax Act authorizing a warrant and the warrant itself were unconstitutional for breach of the Charter. SC unanimous that an appeal WAS available in these proceedings.
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o o o
An application (or action) for a declaration of invalidity was a civil proceeding. The declaration “is NOT transformed from a civil remedy to a criminal remedy merely because the declaration relates to a criminal statutory provision”. It followed that the application for a declaration in this case was governed by the provincial rules of civil procedure, which made provision for an appeal. In this way, the rules of criminal procedure were bypassed, although the Court emphasized that there would be a discretion to refuse to issue the declaration if another procedure were available to resolve the constitutional issue.
(j) Limitation of actions R v Thomas [1990] o
o
Where proceedings are brought, whether under Ss. 24(1) or under the general law, for a “personal remedy”, such as the recovery of unconstitutional taxes or damages for breach of the Charter, statutes of limitation of general application will apply to the proceedings. Indeed, the SC has required persons convicted of unconstitutional crimes to serve out their time in prison if they were outside the time limits for appeals from conviction
Kingstreet Investments v New Brunswick [2007] o o o o
o o
o
o
The Ps, taxpayers, brought an action against the Crown in right of NB to recover taxes that had been imposed by the provincial Leg without constitutional authority. Section 24(1) was NOT applicable because there had been no breach of the Charter. The Ps simply relied on the law of restitution to recover the taxes that had unjustly enriched the Crown. SC held that the Ps were entitled to recover the taxes under the law of restitution, BUT the SC held that the recovery was subject to the province’s limitation statute, which included a residuary limitation period (for all actions not otherwise provided for) of 6 years after the cause of action arose. That period applied to the P’s action and their recovery was accordingly limited to those taxes that had been paid during the 6-year period preceding the commencement of the action. Bastarache J, for the SC, distinguished the Court’s earlier decision in Amax Potash v Govt of Saskatchewan [1977], where the SC had struck down a provincial law that purported to bar the recovery of unconstitutional taxes. The bar had been enacted for the sole purpose of denying relief for things done under an unconstitutional law. Bastarache J drew a distinction between a law that was enacted for the purpose of barring the recovery of an unconstitutional tax from the Crown (Amax Potash) and a law of general application that imposed a limitation period on a class of generally-described causes of action. There was NO REASON why a general limitation statute should not be effective to bar stale claims for the recovery of unconstitutional taxes
Ravndahl v Saskatchewan [2009] o o o o o
o o
The widow of a person who had been killed in the course of his employment received a workers compensation pension from 1975, the date of her husband’s death, until 1984, when she remarried. On her remarriage, the workers compensation legislation of that time terminated her pension. SC held that the termination of her pension was a violation of Ss. 15 of the Charter and that she had a cause of action against the Crown in right of Saskatchewan under Ss. 24(1) for damages for breach of the Charter. However, that cause of action arose on April 17, 1985, when Ss. 15 came into force. Following Kingstreet, the Court held that her proceedings, which had been commenced in 2000, were defeated by the province’s limitation statute, which imposed a residuary limitation period (for all actions not otherwise provided for) of six years after the cause of action arose. The limitation period did NOT bar her actions for declarations that the applicable legislation was unconstitutional. The SC did not address the problem that recognising that she had a cause of action involved giving retroactive effect to the Charter, since the remarriage and consequent termination of the pension had taken place before the coming into force of Ss 15
Prete v Ontario (1993) (CA) o o o
The P brought an action for damages under Ss. 24(1) alleging various Charter breaches by the law officers of the Crown, who had prosecuted him unsuccessfully. The P brought his action outside the 6-month limitation period that was then prescribed for proceedings against the Crown and public officials by Ontario’s Public Authorities Protection Act. The Act had NOT been passed for the specific purpose of barring constitutional claims and it was not limited to constitutional claims.
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o o o o o o
However, the Act was hardly a law of general application, since it applied ONLY to proceedings against public authorities (including the Crown) and imposed a very short limitation period on those proceedings. The Ont CA held that the limitation period did NOT bar the action. Carthy JA, for the Court on this issue, explained that governments should not, even by statute, be permitted “to decide when they would like to be free of [constitutional] controls” The ONLY limitation Carthy JA suggested was the doctrine of laches. Here, the action had been commenced within 18 months, which he evidently did not consider to be the kind of unreasonable delay that would amount to laches. The result was that the P was allowed to proceed with his action, although an action framed in tort for malicious prosecution (which the P’s constitutional claim closely resembled) would have been statute-barred. Prete decided before Kingstreet and Ravndahl and not referred to by the SC in either of those cases.
Hogg argues that Prete was rightly decide, because the Crown should NOT be allowed to immunize itself from constitutional controls by enacting special, short limitation periods for proceedings against itself.
40.3 Administrative Tribunals (a) With power to decide questions of law Douglas/Kwantlen Faculty Association v Douglas College [1990] o SC held that an arbitration board, which had been appointed by the parties under a collective agreement, BUT which was empowered by statute to decide questions of law, HAD the power to determine the constitutionality of a mandatory retirement provision in the collective agreement. o La Forest J, for the SC, said: “A tribunal MUST respect the Constitution so that if it finds invalid a law that is called upon to apply, it is BOUND to treat it as having no force or effect”. o This conclusion was entailed by the supremacy clause in Ss. 52(1) of the CA, 1982. o In effect, the tribunal was obliged to apply ALL of the relevant law, which included the Constitution as well as the relevant portions of contracts and statutes. o Thus, in Douglas College, the professors who had been mandatorily retired were entitled to be reinstated only if the mandatory retirement provision was invalid.
Cuddy Chicks v Ontario [1991] o
o
SC held that a labour relations board, which had been created and empowered by statute to decide questions of law, had the power to determine the constitutionality of a provision in the empowering statute that denied collective bargaining rights to agricultural workers. o The union that had organized the agricultural workers WAS entitled to certification only if the agricultural workers exclusion was invalid. ONLY “superior courts” have the power to issue binding declarations of invalidity that will invalidate a law with general effect
In both cases o o o
o
o o o
It was necessary for the tribunal to resolve the constitutional issue in order to exercise its statutory jurisdiction. SC expressly refused to decide whether an administrative trial could be a court of competent jurisdiction under Ss. 24(1) Section 24(1) was irrelevant: the applicants were NOT seeking any remedy for breach of the Charter. The application was seeking a remedy that the tribunal was empowered to grant in the normal course of its jurisdiction, namely, the reinstatement of wrongfully dismissed employees in Douglas College and the certification of a union in Cuddy Chicks. The Charter issue arose in the course of determining whether the remedy should be granted, because the Charter, if applicable, directed the tribunal to disregard a law that would otherwise bar the tribunal from granting the remedy sought.
Once Ss. 52(1) had invalidated the apparently applicable law, the subject matter and the remedy would give to the applicants all that they asked for. La Forest J acknowledged the tribunal’s expert knowledge of the regulated field, but added that constitutional determinations by administrative tribunals should receive “no curial deference” In other words, the standard of judicial review is correctness. Superior court can decide for itself even where lower court/tribunal within correct scope – NOT deference
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Where an administrative tribunal decides a constitutional question, its decision will be subject to judicial review by a superior court. Indeed, Hogg argues, an attempt by Parl’t or a Leg to enact a privative clause to bar judicial review would be unconstitutional.
o o
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The SC has insisted, however, that an administrative tribunal has no power to make a declaration of invalidity: Nova Scotia v Martin [2003] The SC has held that the absence of an express power to decide questions of law precluded an administrative tribunal from deciding Charter issues: Tétreault-Gadoury v Can [1991] 2 SCR 222; Cooper v Can [1996] 3 SCR 854 The SC has now repudiated the two rulings: Nova Scotia v Martin (2003).
Nova Scotia v Martin [2003] o o o o o o o o
The Workers’ Compensation Appeals Tribunal of NS faced a claim that the benefits provided by NS’s workers’ compensation plan for chronic pain were unconstitutional for violation of Ss. 15. SC held that the Tribunal HAD the power to rule on the Charter issue. The Tribunal had express power to determine questions of law, BUT Court took opportunity to “reappraise & restate” law SC held that a tribunal with power to determine q’s of law, whether the power was express or implied, was presumed to have the power to determine the constitutional validity of any potentially applicable law. That presumption could be rebutted ONLY by showing that the leg’n empowering the tribunal “clearly intended to exclude Charter issues from the tribunal’s authority over questions of law”. That clear intention would normally be evidenced by legislative provision for an alternative route for the resolution of Charter issues coming before the tribunal. Here, there was nothing in the Tribunal’s empowering leg’n that indicated an intention to exclude Charter issues from the Tribunal’s authority. It followed that the Tribunal could decide the Charter issue. The SC, applying its review standard of correctness, went on to hold that the chronic pain provisions were contrary to the Charter.
Paul v BC [2003] o Was a law unconstitutional for breach of the aboriginal rights guaranteed by Ss. 35 of the AC, 1982? This q’s came before the Forest Appeals Commission of BC, which had to determine whether Mr Paul, a registered Indian, had violated the statutory Forest Practices Code of the province. o Mr Paul had cut down 3 trees on Crown land, intending to use the timber to build a deck on his home. The Code prohibited the cutting of Crown timber, but Mr Paul asserted that he had an aboriginal right to harvest the trees. o The Commission decided that it had the power to deal with this defence, but Mr Paul immediately sought judicial review to stop the Commission from determining his aboriginal rights. o The SC held that the power of an administrative tribunal to determine whether a law was overridden by an aboriginal right was governed by the same rules as Martin stipulated were to be applied to Charter issues. o Here, the commission had the power, under its empowering statute, to decide questions of law. That power was presumed to include the power to determine whether a potentially applicable law was unconstitutional in its application to an Indian by reason of Ss. 25 of the CA, 1982. o There was nothing in the empowering statute to indicate an intention to withdraw aboriginal rights issues from the jurisdiction of the Commission. o Therefore, the Commission had the power to hear and determine Mr Paul’s defence of aboriginal right and the Commission should resume its proceeding in order to receive his evidence and determine the issue. o Applicant argued that the provincial Leg could not enact a law that had the effect of empowering a tribunal to determine questions relating to aboriginal rights. That would encroach on the federal power over “Indians, and lands reserved for the Indians” in Ss. 91(24) of the CA, 1867 – encroaching on the “core of ‘Indianness’”. o The SC rejected this argument on the basis that adjudication was distinct from legislation. o The power conferred by the BC Leg on its Forest Appeals Commission was SOLELY an adjudicative one. The Commission was not granted the power to alter or extinguish aboriginal rights; it could ONLY determine whether they existed. o The Commission’s determinations would be binding on the parties, BUT they would not constitute precedents that were binding on other tribunals or courts and they would be subject to judicial review on a standard of correctness o Bastarache J drew analogy of provincial court, which has jurisdiction to apply entire body of law, including federal law & constitutional law, to resolve disputes properly before it; a provincial administrative tribunal with power to adjudicate questions of law must also take account of all applicable legal rules, whether provincial, federal or constitutional.
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Tranchemontagne v Ontario [2006] o
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The claimant argued a provision of the empowering statute of the Ontario’s Social Benefits Tribunal, which denied a disability benefit (but not general social assistance) to a person whose incapacity resulted from addiction to alcohol or drugs, was inoperative for conflict with the Ontario Human Rights Code on the basis that the provision was discriminatory. The Code is expressly given primacy over other Ontario statutes and these primacy clauses have been held to be effective, which gives a “quasi-constitutional” status to human rights codes. The Tribunal, which had power to determine income-support decisions on appeal from a statutory official, held that it had no power to entertain this argument and denied the disability benefit on the ground of the claimant’s addiction. The tribunal’s empowering statute authorized it to decide questions of law, BUT expressly denied the power to determine the “constitutional validity” of a statute or regulation. Did this restriction on its powers deny to the Tribunal the power to determine whether the addiction provision was contrary to the Code? Bastarache J, for maj, said ‘no’. While Tribunal was precluded from “invalidating” a statutory provision on constitutional grounds, it was NOT precluded from refusing to apply a statutory provision on the ground of conflict with the Code. Aside from the constitutional issues that were expressly withdraw from its powers, the Tribunal was empowered to apply “the whole law” and that included the Code and its primacy clause.
(b) Without power to decide questions of law o o
Administrative tribunals that lack the power to decide questions of law also lack the power to refuse to apply laws on the ground of unconstitutionality. MOST administrative tribunals w/ adjudicative functions will possess the power to decide questions of law.
(c) Preliminary inquiry judge R v Seaboyer [1991] o
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SC held that a judge presiding at a preliminary inquiry of an indictable offence had no jurisdiction under Ss. 52(1) of the CA, 1982 to determine the constitutionality of a rape-shield law which purported to limit the accused’s right to crossexamine the victim of a sexual assault. SC acknowledged that the preliminary inquiry judge would in the course of conducting the inquiry have the power (and the duty) to rule on the admissibility of the evidence presented at the inquiry. BUT this power did NOT extend to determining the constitutionality of a statute that purported to prohibit the admission of evidence. In order to determine whether there was sufficient evidence to make the accused stand trial, the prelim inquiry judge was obliged “to accept the rules of evidence as they stand”. Any Charter challenge to the rules of evidence had to await the trial, where the TJ would be permitted to look at the CC as part of the body of law to be applied.
Hogg points out that the dec’n in Seaboyer predates the decisions in Martin and Paul, which hold that the power to decide questions of law raises the presumption that the decision-maker also has the power to determine the constitutionality of any potentially applicable. Therefore, Seaboyer is inconsistent with those decisions. o
The Court did not make any mention of Seaboyer in the later decisions, BUT Hogg argues that it is safe to regard Seaboyer as impliedly overruled.
40.4 Scrutiny by Minister of Justice o o o
Charter makes NO provision for the pre-enactment scrutiny of proposed statutes and regulations. AS OPPOSED TO THE BILL OF RIGHTS BUT 1985 Department of Justice Act was amended to include MoJ’s scrutiny to encompass Charter as well as Bill
40.5 Legislative Enforcement o o o
Section 31 of the Charter declares that “NOTHING in this Charter extends the legislative powers of any body or authority”. It is CLEAR then that no remedial or enforcement power in the federal Parl’t is to be inferred from the provisions of the Charter. Enforcement of the Charter is the function of the courts, by virtue of Ss. 52(1) or Ss. 24
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