Final
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APPLICABILITY...........................................................................................................8 THE INTERJURISDICTIONAL IMMUNITY DOCTRINE.....................................8 Majority (Ritchie): .......................................................................................................30 Provision is preventative and regulatory rather than penal and therefore acceptable under provincial head of power – province can regulate local trade (intraprovincial) and can set its own standards;........................................................................................30 Province can entrench on areas of morality as long as pith and substance is regulatory. ........................................................................................................................................30 Morality and criminality are far from co-extensive provincial legislation which establishes and enforces a local standard of morality does not necessarily invade the federal criminal law power............................................................................................30 (Separation of powers and respect for federalism underlie the majority judgment) ....30 SECTION 35 – THE CONSTITUTIONAL ENTRECHMENT OF ABORIGINAL RIGHTS.........................................................................................................................37 R v. Sparrow [1990] SCR – page 532........................................................................37 R. v. Van der Peet (1996) – page 545........................................................................39 4 stages of Charter analysis...........................................................................................55 I. Interpreting Rights.....................................................................................................56 A. Purposive Approach..............................................................................................56 B. Aids to / Sources of Interpretation...........................................................................57 II. Defining Limitations: Section 1 – page 748.............................................................58 A. Prescribed by Law.................................................................................................59 B. Justification...........................................................................................................60 III. The Override/Notwithstanding Clause (s.33) – page 775.......................................65 The Application of the Charter – page 781...................................................................66 II. Governmental Action – page 786.............................................................................67 A. Governmental Actors ...........................................................................................67 2) It exercises governmental functions: Godbout 1997 SCC (795)..............................69 B. Governmental Acts...................................................................................................69 III. Government Inaction..............................................................................................70 IV. Application of the Charter to Courts and the Common Law..................................71 Purposes of s.2(b)...............................................................................................................75 Means of Restricting Expression...............................................................................76 Establishing a Violation of s.2(b) .............................................................................76 S. 2(b) Analysis – breakdown from Irwin Toy 1989 SCC at 908......................................76 1. does the activity at issue convey a meaning in a non-violent form? if so, ...............76 2. is the purpose or effect of the impugned government action to control expression by reference to its content? if so, violation established; ....................................................76 S. 1 Analysis......................................................................................................................76 section 1: contextual analysis.....................................................................................76 Dolphin Delivery SCC 1986 – page 901...................................................................77 Commercial Expression................................................................................................77 Irwin Toy 1989 SCC – page 907...............................................................................78 RJR-MacDonald SCC 1995 (920).............................................................................78 R. v. Banks Ont CA 2007..........................................................................................79 Controls on Election Spending..................................................................................87
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Libman 1997 SCC – page 990...............................................................................87 Note on Publication Bans...........................................................................................87 Thomson Newspapers 1998 SCC (note 4, page 1001)..........................................87 To qualify as a principle of fundamental justice, a principle must:..............................89 What principles have been determined NOT to be principle of fundamental justice?. 90 Flora v. Ontario 2007 Ont. SCJ.............................................................................93 Charkaoui SCC 2007...........................................................................................100 Manitoba..................................................................................................................110 Patriation..................................................................................................................111 Re Manitoba Language Rights [1985] 1 S.C.R. 721 (P371)...................................111 Manitoba……………………………………………………………………………….113
PART 1 -- FEDERALISM
VALIDITY
Pith and Substance - Swinton (Page 205) S. 91 – Federal powers S.92 – Provincial powers Two competing interpretations: 1) Federal powers are “general” in scope as indicated by the POGG, unlimited by anything except the list of provincial powers (the classes of s.91 are only illustrative) – Bora Laskin took this position 2) Federal powers are found in the classes of s.91 and the POGG powers are only residuary, to be used in cases where matters are not clearly assigned to either the federal or provincial branches – professors Lysyk and Lederman took this position In fact, the courts do give primary effect to the enumerated powers, using POGG only in limited circumstances (second interpretation above). Choosing between competing classifications (page 206) Three steps described by Abel: 1) identification of the matter of the statute, 2) delineation of the scope of the competing classes 3) a determination of the class into which the challenged statute falls This is problematic in practice since the characterization of the matter (step 1) may be affected by a judge’s view of the appropriate class it should fall under (step 3), thus creating the possibility for judicial bias. Step 1: Identification of the matter of the statute
Constitutional Law of Canada Judges look at: the statutory context purpose of the legislation (legislative history, government reports re: problems which triggered the legislation in the first place) the effects of the legislation Some judges give more weight to the effects, others to purpose. There is no uniform guideline as to when one approach should be preferred over the other. The dominant form of inquiry is into purpose (the extent to which a court if deferential to legislative purpose notwithstanding legislative effects, allows governments to expand their areas of responsibility
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Step 2: the scope of the classes of legislative subjects despite reference to “exclusivity”, ss. 91 and 92 open the possibility for overlapping legislation since the constitution refers to classes rather than persons or activities classes are not watertight categories, rather they are porous: using different classes of power, both the federal and provincial governments can address the same issue: the double aspect doctrine precedent and history play important roles in determining the scope of classes
Step 3: determining the class in which the challenged status falls Since there are no fixed guidelines, this is often dictated by the judge’s own personal views Lederman: judges should weigh uniformity and diversity and should follow widely prevailing beliefs; absent such beliefs, it is basically up to the judge’s best judgment (see page 207 quote)
Many claim that there is no single prevailing belief, rather only competing perspectives based on personal views re: federalism, its ideal character and the “proper” balance between central and local control. Starr v. Houlden (page 212) Approach to characterization: identify the matter of the law by finding its dominant feature (its “pith and substance”) o “pith and substance” is found by examining the purpose and effect of the law o Consider legislative scheme, precedent and a “concept of federalism”
Constitutional Law of Canada Assign the newly determined “pith and substance” under a specific class (s.91 or 92)
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R. v. Morgentaler (page 213) Is the Nova Scotia Medical Services Act provincial health regulation -s.92(7), (13) and (16)- or is it federal criminal law –s.91(27)? Purpose and Effect: -Look at the law itself and the EFFECTS to get a sense of the PURPOSE - Strict Legal Operation - legal effect of legislation (the way it affects rights and liabilities of those subject to it) is a good indicator of its purpose (even if this is not fully intended or appreciated by the enacting body) - Social/economic purposes, background of statute, circumstances surrounding enactment, practical effect of the legislation in operation Extrinsic Materials: related legislation the problem meant to be addressed by the law legislative history (Hansard increasingly accepted to establish background and purpose) materials the legislature had before it when the statute was enacted
Sopinka: Considered: the text of the legislation, the events leading up to its enactment, related policy documents prepared by the government, statements made in the legislature, the law’s effects, plausibility of its stated purpose Concluded: primary aim of legislation was suppressing abortion clinics which has historically fallen under the federal criminal law powers (repealed s.251 of CC) any concerns with health care policy, emergence of two-tiered health system etc were only ancillary to the main purpose of prohibiting abortions outside hospitals law is Ultra Vires since its “pith and substance” is regarding criminal law (Criminal law defined for the purposes of the division of powers by Sopinka as any law that has as its dominant characteristic the prohibition of an activity, subject to penal sanctions, for a public purpose such as peace, order, security, health or morality).
Colourable legislation: on its face addresses matters that are within a particular legislation’s jurisdiction, but in “pith and substance” is directed at matters outside its
Constitutional Law of Canada jurisdiction. Reference re Firearms Act: “where the effects of the law diverge substantially from the stated aim, it is sometimes said to be “colourable”. (page 224) -Meaning, the law is not what it says it is
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Walter v. AG Alberta is an example of a case where the court focused on the legislative text and did not look at legislative history, social facts, absence of plausible intra vires legislative purpose etc. the law in Walter was found intra vires.
Necessarily Incidental (aka “ancillary doctrine”)
-The dominant characteristic of the law could be provincial, but the effects can have impact on matters outside the province’s jurisdiction NI doctrine is used in cases where the provision being challenged is part of a larger scheme of legislation. When impugned provision is examined in isolation, it appears to intrude into jurisdiction of other government. However, if larger scheme of which the impugned provision is a part is found constitutionally valid, the impugned provision may also be found valid because of its relationship to the larger scheme This will depend on how well the offending provisions are related into the valid scheme - if not closely related, provision will be severed and declared invalid; if closely related, will be declared necessarily incidental to the valid scheme and the law as a whole will be upheld permits governments to intrude substantially on other level of government so long as most imp features of their laws remain within jurisdiction. NI Doctrine holds that, if the P and S of legislation fits within a particular head of power, portions of that act may nevertheless exist outside that head of power, so long as those portions are necessarily incidental to the act as a whole General Motors of Canada Ltd. v. City National Leasing (1989) SCC (page 225) (Example of Necessarily Incidental Doctrine) Facts: • CNL brought civil action against GM alleging it suffered losses as result of discriminatory pricing policy that was prohibited under s. 33 of the Combines Investigation Act. • GM argued that s. 33.1 of Combines Investigation Act (CIA) was beyond jurisdiction of Parliament, since the creation of civil causes of action falls within provincial jurisdiction in relation to “property and civil rights” Issue: Should CIA provision be severed and struck down because it invades provincial jurisdiction over property and civil rights? Analysis <TEST FOR NECESSARY INCIDENTAL DOCTRINE>: Steps to take when a constitutional challenge focuses on a single provision of an Act/Scheme: 1) Is the Act as a whole valid? (if NO, statute will be struck down)
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2) If so, is the offending provision, viewed in isolation, valid? (in P/S, is it within the jurisdiction of enacting government?) 3) If not, to what degree does it intrude on the other level of government’s jurisdiction? 4) Is the offending provision sufficiently integrated within the valid scheme, such 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). Application to the impugned provision: • S. 31.1 creates a civil right of action, therefore not difficult to conclude that the provision does appear to encroach on provincial power to some extent • Creation of civil actions is generally a matter within provincial jurisdiction under s. 92(13) of CA 1867 • Yet, s.31.1 is only a remedial provision – it’s purpose is to help enforce substantive parts of the Act, but it is not in itself a substantive part of the Act • Remedial provisions are less intrusive vis-à-vis provincial powers • Also, limited scope of the action – s. 31.1 does not create a general cause of action; it’s application is carefully limited by the provisions of the act • Also, fed. government is not constitutionally precluded from creating rights of civil action where such measures may be shown to be warranted • Therefore, necessary link between s. 31.1 and the Act exists – the provision is functionally related to the general objective of the legislation, and to the structure and content of the scheme Ratio: Although the provision represents an infringement on provincial powers, the court held that this encroachment was necessarily incidental to the main objectives of the legislative scheme in which the provision was couched. Since the provision represented a minimal infringement on provincial powers, and was functionally related to the objectives and structure of the scheme as a whole, the provision was upheld as applicable.
Double Aspect Doctrine (Page 231)
Subjects that fall within provincial jurisdiction may in another aspect fall within federal jurisdiction, and vice versa (Doctrine was first set forth in Hodge v. the Queen). DOUBLE ASPECT allows for overlapping federal and provincial matters, each dealing with a different aspect of the concrete subject matter affected. Allows for more overlap between federal and provincial statutes than NI Doctrine Takes NI doctrine a little further. By their nature, some subjects may have a dual nature (i.e., driving in relation to Licensing (provincial) and drinking (fed under criminal law)
Multiple Access Ltd. v. McCutcheon (1982) SCC (page 232)
Constitutional Law of Canada (Example of Double Aspect Doctrine) -
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Facts: The Ontario Securities Act prohibited insider trading in shares trading on the Toronto Stock Exchange. The Canada Corporations Act had almost identical provisions, applicable to corporations incorporated under federal law. Claim against the defendants was based on Ontario legislation, because the limitation period had expired under the Federal statute only. The defendants, the alleged insider traders, argued that the Ontario statute could not validly apply to their case because the regulation of trading in shares of federally incorporated companies fell within exclusive federal jurisdiction. Alternatively, they relied on the doctrine of paramountcy to assert that the Ontario provisions were rendered inoperative, in the case of insider trading in a federally incorporated company, by the provisions of the Canada Corporations Act which dealt with the same issue. Issue: Are the Canada Corporations Act, or the Ontario Securities Act, ultra vires the powers of Parliament or the Ontario legislature, respectively? Decision: Both sets of statutes are applicable and operative under the double aspect doctrine. The claim against the defendants is constitutional. Analysis: • Court determined the P&S of both the federal and provincial legislation: The federal insider trading provisions were deemed valid as their P&S was held to be in relation to the regulation of federal corporate structure, criminal law s. 91.27, and the power to incorporate companies s. 91 (opening words) • The provincial insider trading provisions were held to be valid in P&S, as they related to the securities trade, which comes within “property and civil rights” s. 92.13 • Ratio: Double aspect doctrine rendered both sets of provisions operative, as the provisions were of roughly equal importance and demonstrated no apparent conflict.
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Class Comments: The court recognized that there are dual aspects to certain things; there is no point in trying to create boxes within ss. 91, 92 which are completely self-contained. This will lead to gaps in the legislation where no one can regulate. Must be flexibility built into the constitutional framework. o Example of dual, concurrent governmental powers over certain sectors, HEALTHCARE. Federal government allocates funds, places restrictions on the uses of these funds and the development of private alternatives. Provincial government determines “medically necessary” services, has control over administration and development of hospitals. The federal government has effectively gained power over healthcare, largely through the POGG clause.
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B. Ryder "The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces and First Nations" (page 237) -Classical approach is to keep them in boxes and make 91 and 92 more exclusive -Modern approach is more overlap between prov. and fed. jurisdictions 1) The Classical Paradigm has been applied to legislation that is viewed as interfering with the operation of free markets -To keep free markets functioning properly, there is a big divide between federal and provincial heads of powers to make sure the law functions properly 2) The Modern Paradigm has been applied to legislation perceived to deal with issues of morality and social order
APPLICABILITY
THE INTERJURISDICTIONAL IMMUNITY DOCTRINE -Where a provincial law deals with a legitimate provincial subject matter but incidentally affects the CORE of a federal subject matter, the provincial law will be READ DOWN so as to confine the law to matters that do not affect the core of the federal legislation. Operates only upon provincial statutes & only with regards to major federal areas (areas of applicability are defined by the Common Law): o o o o o Federal works and undertakings, Federally incorporated companies, Banking Elections Aboriginal rights and title
Interjurisdictional Immunity doctrine – The conceptual opposite of the Double Aspect Doctrine doctrine of INTERJURISDICTIONAL IMMUNITY constitutes a departure from tendency to create overlapping jurisdiction, and is a doctrine that emphasizes exclusivity of jurisdiction. Comes into play in situations where a provincial law is clearly valid in most of its applications, but in some of its applications it arguably overreaches, affecting a matter within fed jurisdiction in those circumstances where the doctrine of interjurisdictional immunity applies, provincial laws are not allowed to have even an incidental effect on matters falling within federal jurisdiction, and there is no double aspect to the matter regulated.
Constitutional Law of Canada Commission de la Sante et de la Securite du Travail v. Bell Canada (Bell #2) (1988) SCC - Page 246 (An Example of Interjurisdictional Immunity)
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Facts: - Quebec legislature enacted law which required employers to reassign pregnant workers who were working in video terminals. o This was a legitimate use and application of provincial powers. Provincial health and safety laws are valid under the provincial head of power; without question, the legislation falls within s. 92. - Bell Canada, a Federal undertaking, refused to abide by the provincial regulations. Issue: Whether provincial occupational health and safety laws (within the sphere of s. 92) could apply to a federal undertaking. Specifically, is Bell Canada, an interprovincial telephone company, bound by a Quebec law that requires protective reassignment of pregnant workers who work with video monitors? Decision: Applying the IjI doctrine, SCC held that federally regulated undertakings are immune from provincial health laws. Provincial law was constitutionally incapable of applying to the federal undertaking, and had to be read down so that it did not apply to the federal undertaking -So the provincial is completely valid, but does it apply to employees of a federal company Analysis: Court held that the law was of a general undertaking – but affected the “basic minimum and unassailable core of a federal subject/undertaking”. Court therefore held that the IjI applied. o This was a slight modification of the IjI doctrine – provincial law now had to affect a CORE of a federal undertaking. What is the core? In this case, the argument was that managing the company (determining which workers were assigned what tasks) was the core of the federal undertaking. o Law applied to every other worker in Quebec, EXCEPT those employed as part of a federal undertaking, in which case it would not apply. Ratio (Beetz): • When provincial law affects a core of a federal undertaking, the law is not applicable with respect to the federal undertaking. Provincial law must be read down since it would otherwise affect an essential or vital part of the management (THIS IS HOW YOU KNOW IT IS INVADING A FEDERAL CORE)of the federal undertaking
-What about Double Aspect doctrine? Court characterized the DA doctrine as “permitting Parliament and a province to enact two relatively similar rules provided they are legislating for different purposes and on the basis of different aspects.
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-Court held that DA doctrine did not apply here, “since the legislators have legislated for the same purpose and in the same aspect”. Court further noted that the DA doctrine should only be used with great caution in the future, as it “would be a source of uncertainty and endless disputes”. Irwin Toy Ltd. v. Quebec (AG) [1989] SCC – Page 253 – Note #5 Facts: Quebec legislation prohibited advertisers from certain kinds of ads geared towards young children. Quebec legislature felt that children were especially vulnerable to certain ads, and sought to protect children by effectively prohibiting some kinds of ads in the interests of child safety. Irwin Toys was the manufacturer; not directly affected by the rule on advertisements. Sought to challenge the constitutionality of the bylaw nevertheless, on the grounds that in impinged federal undertakings with respect to broadcasting – A FEDERAL POWER Issue: Can the IjI doctrine render a provincial statute inoperable when a provincial law of general application indirectly affects a federal undertaking? Analysis: Court modified the IjI doctrine to allow for instances where the law indirectly affects the federal undertaking the test is not whether it impairs or impacts on the core, but whether it sterilizes the operation or management of the undertaking.
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Ratio/New Test for Interjurisdictional Immunity doctrine: First, assess whether a) Provincial law is of specific application OR b) Provincial law is of general application o If specific (specifically aimed at a federal entity), the law is invalid. o If the law is a provincial statue with general application, assess whether it directly or indirectly affects the federal work or undertaking. In Irwin Toys, the law against advertising (Irwin Toys) only indirectly affected Broadcaster. If it directly affects, it is sufficient that the legislation affects a vital or central part of the management or operation IjI can be invoked. If it indirectly affects, then the legislation must go as far as to sterilize/impair the operation or management before IjI can be invoked.. o The threshold is higher for indirectly affecting the entity.
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Majority decided the provincial law only indirectly applied to the federal undertaking and since it did not sterilize/impair the operation of broadcasting, it could validly apply to it. Irwin Toy is the only case in which the meaning of IjI is actually elucidated yet it is still not very much to go on in discerning exactly what is meant by the IjI doctrine.
OPERABILITY
PARAMOUNTCY When otherwise valid federal and provincial statutes CONFLICT, the federal legislation is PARAMOUNT and renders the provincial legislation INOPERATIVE to the extent of the inconsistency. Provincial legislation is not rendered invalid, only its operation suspended. If the federal law is repealed or amended so as to remove the conflict, the provincial law springs back into operation. The Paramountcy issue ONLY arises after the issues of validity and applicability have been determined If a court has determined through the process of characterization, that both the federal and provincial laws in issue are valid, and both apply to the facts of the case, then a paramountcy issue may arise. Will not arise if court finds that one or the other of laws is invalid, or that the provincial law is inapplicable (using doctrine of Interjurisdictional Immunity) Narrow reading of conflict would allow both fed and provincial laws to operate unless it is impossible for those subject to the two leg schemes to comply with both (EXPRESS conflict or Impossibility of Dual Compliance test) Broader reading of conflict - would hold a valid provincial law inoperative whenever it has an impact on a matter already regulated by valid fed law: Covering the Field test or the Negative Implication doctrine the SCC has tended at least until recently to favor a narrow approach, that leaves great deal of room for the concurrent operation of fed and provincial statutes Court has upheld provincial statutes that impose different standards and consequences for driving offences than those in Criminal Code. Impossibility of Dual Compliance test-Ross case and also confirmed by SCC in Multiple Access v. McCutcheon (leading case)
Multiple Access Ltd. v. McCutcheon (1982) SCC – page 260
Constitutional Law of Canada (Direct Inconsistency/Paramountcy) -
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Facts: Federal government passed Corporations Act, provinces have Securities Acts. The only basis for difference between federal and provincial legislation was the limitation period. McCutcheon – wanted to rely on the federal statute because the limitation period had expired. Argued that federal statute should have paramountcy – two laws dealing with the same matter, federal legislation should govern.
Held: Court said paramountcy was not applicable – reiterated the notion of direct conflict (from Ross). Held (Dickson J.) that, in order to conflict, one act must say one thing, the other act must be a complete opposite (p. 263). Expanded on decision in Ross by stating that paramountcy could be invoked only if compliance of one act is “defiance” of the other. Ratio: Only DIRECT conflict gives rise to the doctrine of paramountcy, such that compliance with one law would be defiance of another. “Mere duplication without actual conflict or contradiction is not sufficient to invoke the doctrine of paramountcy and render valid provincial. leg inoperative.”
Bank of Montreal v Hall, (1990) SC – page 264 Facts: Hall, a farmer, contracted loans from a bank and in return granted the bank a security interest on a piece of farm machinery pursuant to a Federal Bank Act. Again, two competing acts: Bank act of Canada and the provincial Consumer Protection Act, a section of which relates to banking, and would render the Federal Act inapplicable after a limitation period. Issue: Does the federal Bank Act conflict with the provincial Act such that the provincial provisions should be rendered inoperative? Holding: Doctrine of paramountcy may be invoked as the two Acts are incompatible. Provincial legislation is rendered inoperative with respect to security interests.
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Ratio: Court adopted a more broad application of paramountcy doctrine: “A showing that conflict can be avoided if a provincial Act is followed to the exclusion of a federal Act can hardly be determinative of the question whether the provincial and federal acts are in conflict, and hence repugnant…The focus of the inquiry [whether provincial provisions are inoperative under the paramountcy doctrine] must be on whether operation of the provincial act is compatible with the federal legislative purpose”. -LEGISLATIVE PURPOSE IS KEY HERE – Prov. legislation infringed the purpose of the federal legislation
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Class Comments: After Hall, a conflict may give rise to the doctrine of paramountcy by either a) an impossibility of dual compliance (as per McCutcheon) OR b) an incompatibility of legislative purpose)
Saskatchewan v. Rothmans, Benson and Hedges (2005) – page 4 in the Supplement – <somewhat reconciles this ambiguity> - SCC held that all paramountcy cases must be approached with a two step analysis: o Can a person simultaneously comply with both federal and provincial statutes/provisions? (original test, from McCutcheon) If the answer is no, the federal statute must prevail. o If yes, does the provincial act frustrate federal Parliament’s purpose (from Hall)? Even if you can comply with both, must still consider whether the law frustrates Parliamentary purposes. -In this case it was held that it did NOT frustrate Parliament’s purpose in passing the law – protecting people from cigarettes, the prov. statute did this as well, just took it a step further
Peace, Order, and Good Government
NOTE ON THE HISTORICAL DEVELOPMENT OF THE P.O.G.G. POWER – page 273 Two branches of POGG – emergency and national concern. Many early decisions of the Privy Council (PC) modified this model into something slightly different, by conflating national concern with emergency. Essentially collapsed national concern into the emergency power of POGG The modern formulation of POGG is based on Viscount Simon’s judgment in AG Ontario v. Canada Temperance Federation 1946. Viscount Simon- expanded scope of the p.o.g.g. power by recognizing the power to legislate for the prevention of an emergency, situations of national concern.
Reference re: Anti-Inflation Act, 1975, [1976] In the Preamble of the Anti-Inflation Act, the drafters used the term “matter of national concern” as an attempt to show that this piece of legislation is based on POGG. They chose these words because they wanted to tie it into the case law without making it seem like an emergency. If it is an emergency, it suggests a temporary nature while if it was a national concern, the government would argue the measures should be left in place for a longer period.
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I: Can the Anti-Inflation Act be justified under POGG either under the national concern branch or the national emergency branch? D: 7 out of the 9 justices decided that the legislation could be supported under the emergency power. 2 decided that it could not. 4 out of the 9 left the question open as to whether it can be supported under the national concern power 5 said that it could not be supported under this power. The court ends up rendering a decision based on emergency – how come?
Judges Laskin, Spence, Judson, Dickson (Laskin, an English speaker, allowed for a broader interpretation of the preamble of the act as he is attuned to the malleability of the language). deGrandpre, Beetz (Beetz, a Quebecker took the meaning of “national concern” literally as per most interpretations in the civil law. Also wants to contain feds for political reasons). Ritchie, Pigeon, Martland Emergency (B) Not a national concern Not emergency Not a national concern Emergency Emergency A National Concern Is a national concern Reasons need rational basis to show emergency/crisis (not explicit evidence)
They see there is not an emergency from the preamble of the Act – it does not expressly say there is an emergency. See the element of national concern as too broad; inflation infringes too much on the provincial power Need very clear evidence/urgent necessity to prove emergency. See the element of national concern as too broad; inflation infringes too much on the provincial power.
Reasons: There are number of arguments that have to be dealt with before it can be shown that there is an emergency. 1) In the preamble of the act it is never stated that an emergency exists all it says is reduction of inflation has become “a matter of serious national concern.”
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Majority does not put too much weight on the fact that an emergency was not explicitly declared. Majority reasons that in preamble they are saying there is an economic crisis that is bringing into peril the economic stability of the country and this constitutes an emergency. Dissent saying that the use of national emergency power enables Parliament to override provincial laws in potentially every field so it must be explicit when using the power. Beetz and de Grandpre point to the preamble – because the preamble of this Act says “matter of national concern” it is clear to them that it is not an emergency situation – if it was an emergency, the drafters would have used the word “emergency.” Comment: From this we see No federal parliament would be wise to draft a piece of emergency legislation without expressly referring to it as an “emergency.” 2) Rational Basis: Laskin says all you need to ask is if there is a rational basis for the legislation which is based on an emergency. Economists unsure amongst themselves if it was an emergency. (This in effect enlarges the federal power by setting a standard for justifying an emergency; some argue this case makes it easier for the feds to establish an emergency – the “rational basis” test is not a very high threshold). 3) The important question is if there is an emergency at the present time. Majority says that this was a political question. Laskin limits the question to “is there an emergency now?” The fact the provinces and the civil services were left out of the scheme (with the ability to op-in) does not mean it is not a crisis. Emergency or National Concern?
Emergency Not contemplated in preamble of Anti-Inflation Act Temporary measures Inflation WAS an emergency (7/9 judges) Federal govt can enact legislation in peacetime dealing with emergency power. Parliament has power to decide whether state of emergency crisis exists. Laskin, Spence, Judson, Dickson said you need only “rational basis” to declare emergency (sparsely defined: less than strict scrutiny, comes from US courts) Ritchie, Pigeon, Martland says you need clear expert evidence. National Concern Contemplated in preamble of Anti Inflation Act Can be extended for longer period of time Inflation not a national concern (5/9) – very close Why Inflation should NOT be seen as a national concern: 5 judges argue inflation is not a national concern b/c anything that affects the Can $ or GDP can affect inflation would give feds too much broad reaching power. Difficult to claim something is of “national concern” when it typically falls under s. 92 if they wanted it to be under fed control, it
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would have been listed in one of the enumerated heads of power in s.91.
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The 4 judges who decided it was a national concern, examined it under POGG. Beetz (for 5 members of the Court): only matters that are sufficiently specific, distinct and indivisible qualify for national concern – inflation fails for being too diffuse and “totally lacking in specificity”
Ratio: When enacting emergency legislation under the emergency branch of POGG courts do not have to explicitly say that there is an emergency situation. As long as there is some support for the fact that there is an emergency that is good enough to invoke the national emergency branch of POGG. Courts cannot deliberate on the effectiveness of policy so long as legislature believed rationally that it would solve the problem that is good enough for courts. -First constitutional case with large use of extrinsic expert evidence. All 9 judges agree on the following: • The whole court would agree that the feds can, in peacetime, enact legislation based on emergency power, which would supercede the normal divisions of power. (either by rational connection – Laskin, clear evidence – Ritchie, or expressly stated in the preamble – Beetz). Parliament has some power to decide whether a state of emergency exists.
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The court diverged on the issue as to what proof you need to show that an emergency exists. the difficulty of defining what “national concern” is plays out in Zellerbach as well. Test for determining valid p.o.g.g power of Emergency legislation: 1. Crisis of serious national concern? 2. Is there a rational basis for the Parliament to conclude that an emergency exists? 3. Is the measure temporary? 4. Is the law rationally connected to the emergency?
The National Concern Doctrine after the Anti-Inflation Reference This branch, given a narrow/ambiguous scope in the Anti-Inflation reference, was elaborated in two cases: R. v. Hauser, and Schneider v. the Queen. Hauser: since narcotics were a “new problem which did not exist at the time of
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confederation”, and since it did not come within matters of a merely local or private nature, it fell within the “general residual power” in the same manner as aeronautics and radio. Schneider: The court, with specific reference to the national concern branch and the “provincial inability test”, held that Heroin abuse was not a matter falling within the POGG power: - “It is not a problem which is ‘beyond the power of the provinces to deal with.’” - “Failure by one province to provide treatment facilities will not endanger the interest in another province.” - “Nor can it be said, on the record, that heroin addiction has reached a state of emergency as will ground federal competence under residual power.” - Legislation can be divided: illegal trade in narcotics coming within the jurisdiction of the Parliament of Canada, and the treatment of addicts under provincial jurisdiction. R v. Crown Zellerbach Canada Ltd, SCC 1988 Facts: Crown Zellerbach Canada Ltd engaged in logging, dumped wood materials in lake, breach of federal Ocean Dumping Control Act. -Zellerbach claims that this is provincial water so any federal legislation regarding it is ultra vires. -Federal government tried to justify the legislation under national concern branch of POGG. -The Ocean Dumping Control Act only applies to marine water that is not international water - act clearly includes salt water but there is a question as to whether it can include BC's internal salt waters. Issue: Does the Ocean Dumping Control Act fall under the national concern branch of the federal POGG power? Decision: The court draws out four conclusions about the national concern branch of POGG. Le Dain (p306) - analytical approach for examining matters of national concern (it all comes together in paras. 3 and 4: 1) The national concern doctrine is separate and distinct from the national emergency doctrine of POGG. The emergency branch is a temporary power and the national concern branch is permanent. 2) National concern doctrine applies to both new matters which did not exist at confederation and to matters which, although
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originally matters of a local nature, have since, in the absence of national emergency become matters of national concern. 3) National concern requires singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and it makes sense to deal with it on a federal level. 4) To determine if a matter has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern consider the provincial inability test: what would be the effect on extra provincial (national) interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter? Majority: Marine pollution is a matter of national concern -Provincial saltwater and territorial water has the required degree of singleness, distinctiveness, and indivisibility to distinguish them from matters of provincial concern since a) it is hard to visually ascertain the boundary between territorial sea and internal marine waters (indivisibility) and b) there are differences between the composition and action of marine waters and fresh waters ascertainable and reasonable limits exist on the impact of federal legislation on provincial jurisdiction. Dissent: Giving the federal government jurisdiction over inland waters sets a bad precedent. Argues we need to draw the line to prevent the overreaching of federal control. It is exactly because factors affecting pollution are so strongly interconnected that giving feds jurisdiction here is dangerous: a whole host of other issues are known to affect pollution (deposits from the air, soil etc); their regulation may in the future fall under federal jurisdiction this may be an overly broad expansion of federal powers. Ryder’s Comments: POGG cases are very few, so it is fair to ask: “does this really have that big an impact on provincial autonomy?” However, POGG’s impact on the provincial jurisdiction over ocean pollution may mean that there will be more concurrency and potential for federal paramountcy. As such, provincial laws that deal exclusively with salt water pollution may be declared UV; however, provincial laws that deal with all the water in the province may be IV due to the necessarily incidental doctrine. Haigh’s comments: This is a really unworkable test gives the feds all kinds of room to create legislation under federal powers that they would not normally have. However, feds have been fairly responsible after this case, and in cases where they could have enacted POGG legislation, have refrained from doing so. The 1988 Court appreciates Canada’s international obligations in reducing pollution: by giving the federal government more power on this issue, the court is giving the government the ability to uphold its international obligations. Friends of Old Man River Society v. Canada (Minister of Transport), 1992
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F: The Environmental Assessment and Review Process Guidelines state that if a proposal could have serious adverse environmental effects, there must be public review by an environmental assessment officer. Alberta wants to build a dam on Old Man River, so they claim the legislation oversteps federal jurisdiction. I: Can this federal environmental legislation be justified under the national concern branch of POGG? D: No, it cannot be justified under POGG. Court ruled environmental protection is not a federal head of power and does not have the requisite distinctiveness to meet the test under the national concern doctrine of POGG. “The environment…encompasses the physical, economic and social environment touching several of the heads of power assigned to the respective levels of government" Need to reconcile with Zellerbach; in Zellerbach, marine pollution is characterized as a national concern because it is predominantly extra provincial and international. Ratio: Environmental protection is not a federal head of power and does not have the requisite distinctiveness to meet the test under the national concern doctrine. However, marine pollution is characterized as a national concern because it is predominantly extra provincial and international (from Zellerbach). R v. Hydro-Quebec 1997 SCC Facts: Canadian Environmental Protection Act (CEPA) – life-cycle (“cradle to grave”) regulation of toxic substances Issue: Is the regulation of toxic substances a valid exercise of federal jurisdiction? Decision: The court does not undertake a POGG national concern analysis which, it argues, is controversial and raises issues that go to the heart of the federal structure of our constitution. (Ryder: CEPA has a really broad definition of “toxic” – this runs counter to the singleness, distinctiveness and indivisibility criteria in Zellerbach.) Instead, the Majority holds that CEPA is a valid exercise of the federal Criminal Law head of power – this analysis is preferred since the court argues that the criminal law power is not as controversial/divisive as the national concern doctrine
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Federal Powers over Economic Regulation – s. 91(2)
After 1960:
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courts seemed more willing to apply the necessarily incidental doctrine in relation to the trade and commerce power, thus allowing the federal government to regulate some intraprovincial transactions as part of a scheme directed at the regulation of interprovincial or international trade: The Queen v. Klassen and Caloil Inc. v. AG Canada The Supreme Court applied the general regulation of trade doctrine to uphold federal competition legislation: GM v. CNL.
Citizen's Insurance Company v Parsons, (1881) SCC & P.C – page 90 Facts: Ontario enacted legislation regulating insurance. Insurance company refused to pay Parson’s claim because he failed to disclosed all relevant info. Parson sued to get money on the basis of Ontario Act – says you don’t have to disclose all relevant info. Insurance company claimed the Act was ultra vires. Issue: Is the Ontario Insurance Act ultra vires the province? Does it fall under the head of trade and commerce (federal), or property and civil rights (provincial)? Decision: the provincial act was not ultra vires. The Act regulated contracts and contracts fell under the head of property and civil rights. It did not come under the federal head of power trade and commerce because it was not 1) political arrangements in regard to trade requiring the sanction of parliament, 2) regulation of trade in matters of interprovincial concern, or 3) general regulation of trade effecting whole dominion. The Act was merely the regulation of one industry in one province; therefore, not federal jurisdiction under trade and commerce. Ratio: Under civil and property rights the provinces have the right to legislate over contracts or particular businesses within the province. The federal trade and commerce power only deals with: 1) political arrangements in regard to trade requiring the sanction of parliament 2) regulation of trade in matters of interprovincial concern or 3) general regulation of trade effecting whole dominion (GRT). Ryder condensed this to 2 branches: 1) Extraprovincial (between provinces and international) trade (ET) and 2) General Regulation of Trade (affecting the whole country) Case laid out an ‘exclusivist’ approach in defining the limit of federal power over ‘Trade & Commerce’ and provincial power over ‘Property & Civil Rights’. o Assigned narrow scope to federal power to preserve integrity of provincial power
The Queen v. Klassen (1960) – page 357
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Facts: s. 16(1) of the Canadian Wheat Board Act outlined certain compulsory procedures and guidelines re: grain elevators. Klassen, a grain farmer involved in intraprovincial grain trade failed to respect the federal guidelines and was charged under the Act. Issue: Is s.16(1) of the Act a valid exercise of federal powers over Economic Regulation? Decision: the Act’s main legislative purpose is the regulation of trade and commerce with respect to interprovincial and international export of grains. S.16(1) is simply the machinery by which the policy and general purposes and provisions of the Act are administered and enforced. Even though Klassen was not directly involved in interprovincial or international grain trade and all his trade was intraprovincial, s.16(1) still applies to him since one of the main purposes of the Act was equality of delivery opportunity (i.e. the government’s interference with individuals’ rights to trade grain freely on the market must affect all equally; it must not be allowed that some traders gain unfair advantages by not respecting the Act simply because they were fortunate enough to achieve access to local grain markets)
Ratio: The Act is in pith and substance in relation to trade and commerce (federal heads of power) and merely “affects” property and civil rights (provincial heads of power) incidentally. Caloil Inc. v. AG Canada - SCC (1971) – page 361 Facts: In an attempt to help out Canadian oil producers, the federal government passed legislation limiting “any gasoline” from being imported into certain areas of the country without a license (this is legislation #1) Caloil lost its license and sued, arguing that legislation #1 was unconstitutional as it invaded provincial jurisdiction over property and civil rights. The courts agreed with this claim. As a response, the federal government passed legislation #2 which limited the scope of the restrictions to “imported oil”. Caloil sued again on the basis that legislation #2 also invaded provincial jurisdiction Decision: SCC decided unanimously that legislation #2 was intra vires i.e. a valid exercise of federal power re: international trade regulation. Analysis: SCC distinguished legislation #1 from legislation #2: #1 had too broad restrictions (“any gasoline”) while #2 was explicitly limited in scope to imported oil. The true character of the enactment is an incident in the administration of an extra-provincial marketing scheme. Interference with local powers is an integral part of the control of imports for extra-provincial trade regulation and as such, it is intra vires Parliament. Ratio: federal government can assume a regulatory role over trade in the provinces only if such regulation is “necessary” to the effective regulation of interprovincial or
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Facts: Federal and provincial Acts set out differing standards for produce quality labels: “Canada Extra Fancy” quality could not be claimed on bruised apples, because the fed. gov owns that label -It was non mandatory to put this label on, but Dominion did anyways and was charged Issue: is the federal Act ultra vires? Decision: close (5 to 4): the Federal Act was ultra vires. Analysis: Majority - the Federal Act was ultra vires since it tried to regulate an entirely intraprovincial matter under the guise of international and interprovincial trade regulation. Allowing both the federal and provincial laws to regulate produce labeling would create wasteful overlapping or double-decking of administration or enforcement – this would defeat the purpose of the Constitution. Minority: the Federal Act should be upheld. The federal standard is already compulsory at the interprovincial and international trade level, so the voluntary compliance of dealers at the local level would be convenient for both dealers and consumers. Note on Labatt Breweries of Canada Ltd. v. AG Canada Facts: federal Food and Drugs Act regulated the content of a variety of food and drug products and set out product labeling guidelines. Labatt marketed its “Special Lite Beer” which exceeded the maximum allowable alcohol content of “light beers” according to the Act. Labatt challenged the validity of the federal Act. The federal argument argued it relied on the trade and commerce power, the criminal law power and POGG power. Issue: is the Act ultra vires? Decision: the Act is ultra vires as far as it applies to malt liquors and light beers. Analysis: Trade and Commerce Power: the Act failed the first branch of Parsons (ET) since breweries are a local intraprovincial matter. The Act also failed the second branch of Parsons (GRT): the regulation of a single trade or industry is clearly not of general national concern. “Neither national
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ownership of a trade or undertaking or even national advertising of its products will alone suffice to authorize the imposition of federal trade and commerce legislation”. The Food and Drugs Act, though it covered a substantial portion of Canadian economic activity, was seen as a scheme regulating “one industry or trade at a time, by a varying array of regulations or trade codes applicable to each individual sector” therefore, the Act is not a “regulation of trade and commerce in the sweeping general sense contemplated in Parsons”. A federal “labeling power” is possible (see Canada Standards mentioned in Dominion Stores on page 363 bottom), but not in this case since labeling legislation regulates revelation of content and conditions of use and not standards of production or marketing. Criminal Law Power: The impugned provision was characterized by Estey J as involving detailed regulation of the brewing industry and as such was not directed at the protection of health or the prevention of deception. POGG Power: Estey J thought there was no matter of national concern. AG Canada v. Canadian National Transportation Dickson J: Some criteria central to GRT (General trade power – second branch of 91(2) and Parsons): -GRT cannot lead to regulation of a single trade or business in the province since this is not a question of general interest throughout the Dominion and goes against ---Constitutional local autonomy -- This is the case even if federal enactments purport to carry out such regulation in the same way in all the provinces. -GRT does apply when what is at issue is general legislation aimed at the economy as a single integrated national unit rather than as a collection of separate local enterprises -Such legislation cannot be practically or constitutionally enacted by individual or groups of provinces. The focus of legislation validated by GRT is on the general: though it may touch on provincial property and civil rights, in pith and substance addresses questions of general interest throughout the Dominion. -There is a clear line between measures validly directed at a general regulation of the national economy and those merely aimed at centralized control over a large number of economic entities. Labatt was close to this line. General Motors of Canada Ltd. v. City National Leasing (1989) - page 371 <SEE ABOVE FOR FACTS>
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Analysis: Steps to take when a constitutional challenge focuses on a single provision of an Act/Scheme: 1) Is the Act as a whole valid? (if NO, statute will be struck down) 2) If so, is the offending provision, viewed in isolation, valid? (in P/S, is it within the jurisdiction of enacting government?) 3) If not, to what degree does it intrude on the other level of government’s jurisdiction? 4) Is the offending provision sufficiently integrated within the valid scheme, such 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). Does 31.1 of the CIA encroach on Provincial Powers? Yes 1) Is the act as a whole valid? (Assess 5 GRT factors) GRT factors (pages 373-374) a) regulatory scheme? b) oversight of regulatory agency ? c) concerned with regulation of trade as a whole; must not be concerned with a particular industry or collection of industries? (as in Parsons; Labatt) d) legislation is beyond provincial jurisdiction? e) national scheme necessary to avoid potential negative consequences that one province’s approach could have elsewhere in the country?
a) Is there a regulatory scheme in the CIA? Yes Regulatory scheme factors: - elucidation of prohibited conduct - creation of an investigatory procedure - establishment of a remedial mechanism b) is there oversight of a regulatory agency? Yes - Director of Investigation and Research - Restrictive Trade Practices Commission c) concerned with regulation of trade as a whole? Yes - Scheme of regulation is national in scope - Regulation of trade in general and not a particular industry or commodity - General applicability (this distinguishes CIA from the Act in Labatt) d) legislation is beyond provincial jurisdiction? Yes - deleterious effects of anti-competitive behavior transcend provincial boundaries - competition is not only local concern, but of crucial importance for national economy - provinces jointly or severally would be constitutionally incapable of passing effective legislation e) national scheme is necessary - Hogg article - need for national regulation of competition - Study by Safarian - National interest
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Therefore, CIA is intra vires Parliament (Act is valid - Step 1 of 4 of the test above)
Federal Powers over Criminal Law – s. 91(27)
-To be valid criminal legislation the law has to have: 1. The Formal requirement – prohibition and penalty 2. Substantive Element – Purpose – the law has to have a public purpose – pursue the elimination of a serious social evil Ref re Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference) Purpose and Form Test: Purpose (the Substantive element): every criminal law provision must have a public purpose dealing with public peace, order, security, and health (pursuing to eliminate a serious anti-social behavior). Form (the formal element): it will be in the form of penal consequences which are enforced by the courts. Decision: In the correct circumstances, criminal power can be applied to issues of commerce. Apply the Purpose and Form Test to Margarine passed the formal element but failed the substantive element (since prohibition of margarine was held to have no public purpose in the sense outlined above). RJR MacDonald Inc. v. Canada (Attorney General) (1995) 7-2 ruling that the Tobacco Products Control Act is a valid exercise of s.91(27) (much of the Act was struck down on Charter grounds) RJR: “not part of the traditional areas of criminal law” Court: see the living tree – you can expand to include new areas RJR: if the consumption, sale, manufacturing is legal, why is advertising criminal? Court: bad experience with prohibition (driving underground etc), it is open to Parliament to target marketing as a way to reduce cigarette smoking RJR: there are exemptions in these criminal prohibitions (if something is truly criminal, or social evil then no such exceptions should exist) Court: Parliament is entitled to make such exemptions as an exercise in defining and outlining the limits of the prohibition
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How far does criminal law go? RJR and Hydro Quebec push the boundary of criminal law. It used to be thought you could only focus on the activity or the substance – this case says parliament can make the choice – they can use other regulatory solutions that prohibit certain aspects related to that activity – that is a valid exercise of the criminal law power. Facts: Restrictions on advertising and sale of cigarettes - requirement of health warnings, restrictions on who they can market to and where they can market. (When thinking of the validity of a federal provision, think of it in terms of: form (prohibition and penalties) and purpose (prohibition of a social evil as illustrated by Rand J in Margarine reference). Majority: Criminal law can embrace new matters such as cigarettes. Control of an ‘evil’ does not necessitate an outright ban of the substance, but, rather control of ancillary measures (advertising) through criminal law power is acceptable. The form (penalty) and purpose (smoking is bad) test still applies to the ‘evil.’ Presence of exceptions (i.e. is legal to sell smokes as long as there are warning labels) didn’t preclude finding that legislation was criminal law. Dissent: advertising is too far removed from the injurious or undesirable effects of tobacco use to constitute a valid exercise of criminal law power. Asks why they didn’t ban tobacco itself. They argue there should not be any exceptions if it is truly criminal law. Hydro Quebec (1997) (5-4 ruling upholding Part II of CEPA as a valid exercise of s.91(27) – most important of the trilogy – It is the most expansive in terms of its definition of Criminal Law powers) Facts: D charged w/ violating interim order under the Canadian Environmental Protection Act, (established process of regulating use of toxic substances). Under CEPA, where Ministers believe that immediate action is necessary with respect to substance, s. 35 allows for making of ‘interim orders’ w/out going though usual procedure. Hydro Quebec opposed interim order against them which circumvented normal procedure. Page 401: “may have an immediate or long-term harmful effect” this is a very broad definition – gives rise to division of powers concerns (in every other provision that the feds sought to justify under the criminal law power (margarine, RJR), the provision was set out in the statute – here, you can read the statute and you still may not know what is prohibited because it is up to the minister to decide what is prohibited). Does this meet the formal definition of criminal law? There are no prohibitions, only the power to enact prohibitions given to cabinet; this is a scheme that allows Parliament to assess the hazards and enact regulations re: manufacturing, use, disposal of toxic materials; this looks very much like a regulatory act, not a criminal act
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Issue: Can environmental issues be regulated through the criminal law power? Majority: Permits criminal law power use based on regulatory discretion rather than explicit provisions/prohibitions Broad wording is unavoidable due to the breadth and complexity of environmental protection majority allows the criminal law power to apply even where the actual substance which causes the offense is subject to an administrative decision requirements of PATA case (which were thought to require that criminal law restrictions be based on explicit and clear provision) were not as strict as formerly thought – RELAXING THE FORMAL REQUIREMENTS Majority (5-4): Pith and Substance fits criminal law notwithstanding the apparently regulatory nature which, according to the majority, is only an introduction to the criminal “meat” to follow in the prohibitions and is therefore valid criminal law. Dissent: sticks to PATA case (if Pith and substance is prohibitory rather than regulatory, then it is valid under the criminal law power). This is regulatory and should not be considered valid for that reason. Also, s.34(6) of the Act exempts provinces that already have equivalent regulations in place this suggests that the Act is regulatory in nature, since feds cannot delegate their criminal law power to the provinces. General Rule: legislation with admin/regulatory features directed at defining the nature and scope of prohibitions and penalties is constitutionally valid exercise of federal criminal law power as long as the prohibitions and penalties are the P&S of legislation A regulatory scheme with a large measure of administrative discretion satisfies the formal requirements of criminal law Ryder agrees with the dissent (against this very broad expansion of criminal law powers) After these two cases: Here, the majority decision from Crown Zellerbach is cut down and limited to a very specific area of pollution. After the Hydro case, the court seems to be saying that the court should use criminal law power to deal with the environment and not POGG
Reference re Firearms Act (1995) Facts: Alberta govt argued that federal gun control legislation (which sought to regulate but not ban firearms through complex regulatory gun registry system) was really an attempt to regulate personal property, which falls under the provincial head of power
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-Here, the feds were applying RJR and Hydro Quebec to regulate firearms: they took the notion that you do not need an outright ban but can ban ancillary aspects from RJR and they took the notion that you can have a regulatory scheme under criminal law from Hydro Quebec case. Decision: Alberta failed and law was found to be good criminal law. Reasons: the Act is in pith and substance directed to enhance public safety through prohibitions and penalties, meaning it is valid criminal law -While the Act also has regulatory aspects, they are secondary to its primary criminal law purpose -The intrusion of the law into the provincial jurisdiction over property and civil rights is not so excessive as to upset the balance of federalism Criminal purpose: gun control has traditionally been valid criminal law since guns are dangerous and pose a risk to public safety Criminal form: prohibitions and penalties (court focused on Criminal Code prohibitions and thus avoided a “necessarily incidental” analysis – saying it’s well enough integrated into the law as a whole to be necessary incidental, but they didn’t need to do this) Complex regulatory nature of the Act: just because it is complex does not mean it cannot be criminal (other highly complex laws are valid exercises of criminal law power – Food and Drugs Act, CEPA etc) no undue discretion given to the chief firearms officer or the Registrar unlike in Hydro-Québec, the offences are not defined by an administrative body Gun control is distinguished from provincial regulatory schemes (cars, land titles etc) While cars are also dangerous, guns pose a pressing safety risk in many if not all of their functions. Unlike cars, guns are often used in violent crime, domestic violence etc The Act does not regulate guns as items of property (i.e. it does not attempt to regulate insurance or permissible locations of use); it only addresses dangerous aspects of guns and the need to reduce misuse. An appropriate balance of power must be maintained between federal and provincial governments the question is not whether this balance is necessary (it is beyond debate that it is), but whether the Act upsets it the Act does not upset this balance: it does not interfere with provincial property and civil rights regulation of guns and it does not give the federal government jurisdiction over a new field since gun control has always subject to federal legislation
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Summing up the federal criminal law power RJR – related activities can be prevented under criminal law power as long as it is in the service of prohibiting harmful activity Hydro Quebec – harm to the environment, not harm to a person and not harm to property, is a valid purpose of criminal law as a social evil. The prohibition with penalty can be read quite widely to include prohibitions that are determined by the exercise of administrative discretion Hydro Quebec and Firearms Reference – show that complicated administrative regimes where the decision making is carried out by the executive or administrative officials is also valid criminal law
Provincial Power to Regulate Morality and Public Order – 92(14)
There are three ways in which provincial interests in regulating morality and public order are recognized:
1. Much of the federal Criminal Code is provincially enforced because: 92(14) gives
provincial legislatures jurisdiction over the administration of justice in the province (including provincial policing) and also because of the federal delegation to the provinces of the power to prosecute Criminal Code offences. 2. The federal government, through conditional legislation, has built in flexibility to its criminal laws allowing some such laws to operate only to the extent that they do not conflict with provincial laws (ex: Lord’s Day Act) 3. Judicial recognition of concurrent provincial jurisdiction in matters that may also be the subject of criminal law this is the type of tension explored in McNeil, Westendorp and Morgentaler i.e. should concurrency be allowed or should the federal criminal law invalidate the provincial legislation? Note: s.92(15) allows the provinces to enact penal sanctions, but the power is understood as an “ancillary” one, authorizing the use of penal sanctions to enforce provincial regulatory schemes that are validly anchored elsewhere in the s.92 list of provincial powers. This means a province cannot enact penal sanctions on the basis of s.92(15) alone. A province needs to justify the enactment of penal sanctions as an enforcement mechanism to a law which is in pith and substance based on a valid provincial head of power. -e.g. If a province wanted to enforce a parking by-law, they could do that through s.92(15) – allowed to enforce laws with penal sanctions as long as it is something that they are allowed to enforce in the first place (in this case, parking is a municipal matter)
Constitutional Law of Canada -Cannot start with 92(15), have to use sanctions they are allowed to made Re Nova Scotia Board of Censors v. McNeil , 1978 SCC
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Facts: D as private citizen sought declaration that provision of provincial Theatres and Amusement Act that required that all films be submitted to provincial censor board prior to their exhibition and the unfettered power of board to permit/prohibit showing of film Decision: 5:4 decision upholding provincial legislation Majority (Ritchie):
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Provision is preventative and regulatory rather than penal and therefore acceptable under provincial head of power – province can regulate local trade (intraprovincial) and can set its own standards; Province can entrench on areas of morality as long as pith and substance is regulatory. Morality and criminality are far from co-extensive provincial legislation which establishes and enforces a local standard of morality does not necessarily invade the federal criminal law power.
(Separation of powers and respect for federalism underlie the majority judgment) Dissent (Laskin): Province is intruding on federal criminal jurisdiction by masking a criminal provision in a regulatory scheme; morality is a federal jurisdiction. (Centralist tendencies underlie the minority judgment) Notes: In McNeil, a certain provision of the Act was found, even by the majority, to be invalid since it was too similar in its wording to the Criminal Code provision which made it an offence to publicly exhibit an indecent show. Ritchie argued that the provision is invalid since it authorized the censor board to define what constituted a Criminal Code offence -Just acknowledging that they know where to draw the line Bedard v. Dawson (1923) – page 420 Issue: Validity of Quebec legislation providing for the closure of premises used as “disorderly houses” (which were mostly premises where Criminal Code convictions for prostitution and gambling took place). Decision: SCC upheld the provincial legislation Arguments in favor of upholding the provincial law:
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The law was argued to be “preventative” not “penal” (similar to McNeil) the law was in relation to property use (analogous to control of nuisance) provinces can legislate with respect to the civil consequences of crime (for example provincial highway traffic legislation provides for driver’s license suspension following conviction for certain Criminal Code offences)
AG Canada v. Dupond (1978) Facts: in 1969, Montreal had a series of public demonstrations which led to violence, vandalism and looting. Shortly after, City of Montreal passed a bylaw prohibiting gatherings that endangered tranquility, safety, peace or public order. The law gave the city’s executive committee the power to prohibit gatherings if there were reasonable grounds to believe they would endanger safety, peace or public order. Fines and imprisonment were available as punishment. Issue: is the provincial law valid? Decision: the provincial law is valid. Reasons: the provincial law is a valid exercise of provincial jurisdiction over the regulation of the municipal public domain (a local matter). The majority (Beetz J) used the preventive nature of the provincial law to distinguish it from the Criminal Code provisions dealing with breach of the peace. Dissent (Laskin): the provincial law is an ultra vires attempt to reinforce the criminal law. The provincial law is a “mini-criminal code” dealing with apprehended breach of the peace, apprehended violence and the maintenance of public order. The provincial law could ban even peaceful gatherings. Since Laskin believed that the criminal law should be enforced against violators and not against innocents, he strongly dissented. Notes: Laskin’s dissents from McNeil and Dupond reflect his concern for the protection of civil liberties through the federal criminal power – the criminal law power provides a lot of procedural protections (beyond a reasonable doubt, etc….) -But maybe the Charter eliminated the need for indirectly protecting civil liberties through federalism – Now people can use Charter to challenge these provincial laws Westendorp v. Queen, 1983 SCC – page 421 Facts: City of Calgary passes by-laws dealing with prostitutes congregating and causing embarrassment (similar to Nova Scotia’s attempt to stop abortion in Morgentaler). Decision: This is a clear attempt to punish prostitution in a criminal fashion; this is ultra vires the municipal government. Prostitution does not relate to any head of power under s. 92.
Constitutional Law of Canada Majority: the pith and substance of the law is criminal. S.6 of this act is not merely regulating a local matter (public nuisance) since it seems very arbitrarily chosen (not related in subject-matter or in the scale of penalties with the rest of the by-law). Legislative history showed that the province complained that the Criminal Code provisions are not effective and then introduced the legislation – this shows that the province was trying to intrude on the federal government’s criminal law powers. Note: if province wanted to control prostitution, the law would have to be construed effectively as an attempt to control the streets – this was not the case here. Goldwax v. City of Montreal (1984) – page 423 This was a case similar to Westendorp where the municipality attempted to introduce colorable legislation purportedly against public nuisance, but actually aimed at criminalizing prostitution. The provincial law was again found ultra vires. Rio Hotel Ltd. V New Brunswick (Liquor Licensing Board) (1987) The Court held that, despite overlapping with valid federal law, the provincial law that restricted nudity in bars was constitutionally valid goes against Westendorp
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Facts: The NB Liquor Control Act required that all liquor licenses be accompanied by an entertainment license that limited the degree of nudity allowed within the establishments. Issue: Rio Hotel decided to challenge the constitutionality of the law on the grounds that it related to public morality, a matter of federal criminal law. Decision: Dickson characterized the law as regulating the type of entertainment allowed to promote alcohol sales (regulation of an intraprovincial matter), and did not characterize it as an issue of morality -The matter was seen as both of a local nature and relating to property and civil rights. Though there are provisions within the Criminal Code dealing with nudity, they do not conflict with the provincial law one can comply with both. Furthermore, the provincial law did not possess any penal consequences -Dickson also distinguished Westendorp: in Westendorp, the impugned section was clearly not integrated within the rest of the by-law (in either subject-matter or scale of penalties) while the restrictions in this case were seen as part of a comprehensive scheme regulating the sale of liquor in New Brunswick and as such were not a colorable intrusion upon a federal head of jurisdiction Note: Rio is an example of the general tendency of courts to allow concurrency (using double aspect doctrine) of provincial regulation of morality and federal criminal law.
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Ryder’s example: The Dog Owners’ Liability Act: is it a provincially valid power (street safety with enforcement/punishment provisions attached) or is it a federal power (prohibition with penalty to combat a social evil)? It is both and therefore, concurrency makes sense
Provincial Commissions of Inquiry (PCI) and the Criminal Law Power – page 425 The criminal law affords the accused procedural protections. Provincial Commissions of Inquiry (in the process of examining conduct that has also given rise to a criminal investigation or charges) can compel testimony (with the restriction that any evidence given cannot be used against the person giving that evidence in any subsequent proceedings) The courts see provincial commissions of inquiry as having a purpose different from a criminal investigation i.e. not whether a specific crime was committed, but determining what the extent and causes of a problem are so that they can be prevented in the future. As such, courts often recognize a double aspect, allowing both criminal investigations and PCIs to run side by side. An exception from this tendency towards double aspect is found in Starr v. Houlden where the PCI was found to be ultra vires the province: PCI had a narrow focus (only two named individuals) and incorporated/used language from Criminal Code provisions SCC found this an intrusion on federal criminal law and criminal procedure powers
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PART 2: Aboriginal Peoples and the Constitution
Common Law Background -Historically, aboriginals were treated as nations by the British, because of their strategic military importance
R v. Sioui (1990) SCC - page 513 Facts: members of Huron nation charged with cutting trees in provincial park contrary to provincial Quebec regulations; claimed they were practicing ancestral customs and religious rights guaranteed by a treaty with the British in 1760. Decision: the Huron entered into a treaty to protect religious liberties and customs, treaty is still valid, the acts protected by its terms were not incompatible with Crown suzerainty and that the treaty provided an effective defense against the acts for which the Huron were charged.
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Analysis: a review of the historical record indicates both the French and the British treated Native Nations as sovereign and sought to enter into treaties with them since they were valuable allies. Chippewas of the Sarnia v. Canada (2001) Ont. CA – page 517 The Court outlines the historical nature of Crown – First Nations relationship. o Dealings between Crown and First Nations involved relations between sovereign nations to be governed by agreements of treaties made by the Crown and First Nations. These relations were an imperial concern, administered primarily through royal prerogative, policies formulated in England and Indian affairs were no concern of colonial legislatures o Crown, mainly for military reasons, sought First Nation support. It did so by addressing Native grievances Royal Proclamation of 1763: recognized First Nations had rights in their lands established imperial control over settlement on Indian lands whether those lands were within or beyond the boundaries of the established British colonies in North America prohibited private purchase of Indian lands and required that alienation of Indian rights in their lands be by way of surrender to the Crown established a process by which surrenders of Indian land would be made to the Crown. The surrender process accepted that Indian rights in their lands were collective and not individual.
p. 519- Canada, Royal Commission on Aboriginal Peoples, Report, vol. 2, Restructuring the Relationship Connelly v. Woolrich (1867), Quebec SC Facts: White guy marries Native woman under Cree Law on Cree Land. Later moved away married white woman. Upon father’s death, son from first marriage brings claim that under Cree Law he is entitled to half of father's property. Issue: Was the Cree marriage valid? Decision: The court had no hesitation in holding that the Indian political and territorial rights, laws, and usages remained in full force in the northwest at the relevant time. This decision portrays Aboriginal peoples as autonomous nations living within the protection of the Crown but retaining their rights, political organizations and common laws. Number of lessons can be drawn from this case: 1) The sources of law and authority in Canada are more diverse than is sometimes assumed. 2) In earlier times, the history of Canada often featured close and relatively harmonious relations between Aboriginal peoples and newcomers. 3) The decision in Connolly v. Woolrich stands in contrast, then, to the common impression that Aboriginal peoples do not have any general right to govern
Constitutional Law of Canada themselves. However, this view overlooks important features of our legal system: The laws of Canada spring from a great variety of sources, written and unwritten, statutory and customary.
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• In 1876 the Indian Act, attempted to change the Aboriginal conceptions of land, governance, inheritance, family and obligation. It virtually ignored Aboriginal traditions by trying to replace them with Victorian values and thus departed from the more respectful relationship created in the 100 year period prior to confederation. • In Calder v. AG BC the SCC recognized that Aboriginal title was justifiable under the common law. This case arose because unlike the situation in Ontario, treaties had not been signed in B.C. As a result the Nisga’s claimed that they continued to enjoy aboriginal title in absence of such surrenders. While the judges were evenly split on the major issue of whether the Nisga’a Aboriginal title had been extinguished by the general land enactments of BC, they did agree that Aboriginal title existed independently of a “treaty, executive order or legislative enactment”. Sources of Aboriginal Rights Prior to 1982: 1) Royal Proclamation 1763: Assertion of British Sovereignty in North America. The proclamation established that unsettled lands in Quebec were reserved for aboriginal people. The proclamation also recognized the tile of Aboriginal people. It was set out that British settlers could not acquire the lands of Aboriginal peoples and that Aboriginal land could only be ceded to the crown. 2) Common Law Aboriginal Title: Recognized in the St. Catherine’s Milling case 1888 where it was established that Aboriginal peoples had a personal and usufructuary right to the lands which they traditionally occupied. It was held that aboriginal title existed as a burden on the underlying crown estate in all land. 3) Treaties with the Crown: Generally, treaties provided for the surrender of traditional lands in exchange for some form of compensation. Treaties were generally interpreted by courts against the interests of the Aboriginal people. Treaties: Now read as documents between equals. Similar to International treaties. Must think of treaties as a solemn exchange of promises between the Crown and Indian Nations (sacred agreement). Agreement where the ‘honour’ of the Crown is at stake Must assume that the Crown will ALWAYS FULFILL its obligations committed to under a treaty. Treaties are read IN FAVOUR of the aboriginal band i.e., any restrictions or extinguishments of rights are for the Crown to prove.
Guerin v. The Queen (1984) SCC – page 524
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- The beginning of modern Aboriginal rights in Canada - Took place before the 1982 Constitution (even though the decision came out in 1984). Facts: The Indian Act said that a band must surrender its land to the Crown in order for the Crown to lease it to the public. The Musqueam Band wanted the land to be leased out and a golf course built. They surrendered the land to the Crown and trusted the Crown to negotiate the land for them (they had to because of the Act). The agent for the Crown negotiated in bad faith (since he couldn’t find a lessee to lease the land to at a good price) and ended up leasing at a much lower price per acre than the Aboriginals wanted, but didn’t tell them. The agent then signed the lease at a lower rate and the Musqueam band was not told what was going on. They didn’t realize they were being ripped off until much later. Dickson explains the nature of the relationship between the Crown and the Aboriginals and its fiduciary duty: • Sui generis (unique) nature of the interest o Sources of Aboriginal title: Royal Proclamation and treaties. It all stems from the fact that the Aboriginals were here first and the settlers just took away some of their rights that they shouldn’t have. The Crown has a fiduciary obligation to the Aboriginal population o (Fiduciary means that you owe it to another to act in their best interest, with loyalty and in a certain way – e.g. lawyer-client privilege. It’s the highest obligation that civil obligation has invented) o A fiduciary aspect can arise by statute, agreement, unilateral undertaking. o The Aboriginal-Crown relationship arises by virtue of the Indian Act and by historical factors (they were here first, the Crown has taken on role of acting as parent to Aboriginals) o The Indians’ interest in lands does not in and of itself give rise to a fiduciary relationship; this relationship is created by the additional fact that the Indian interest in the land is inalienable except upon surrender to the Crown o Part of the duty in this particular case, it is the honor of the Crown that is at stake. Even if the Crown’s original price was too unreasonably high, you don’t just go and negotiate a dif rate. You go back and say that you can’t get a deal at that rate and get their consent to go for a lower price. You can’t act unilaterally without having their best interests at heart. o The damages for a breach of a fiduciary duty are much greater than they otherwise would have been.
•
The Existence of Indian Title: • In Calder the court recognized aboriginal title as a legal right derived from the
Constitutional Law of Canada Indians’ historic occupation and possession of tribal lands. • Assumption implicit in Calder that Indian title is an independent legal right, which, although recognized by the Royal proclamation of 1763, nonetheless predates it… Their interest in their lands is a pre-existing legal right not created by the Royal Proclamation or the Indian Act or by any other executive order or legislative provision.
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The sui generis interest which the Indians have in the land is personal in the sense that it cannot be transferred to a grantee, but it is also true that the interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering Indians. These two aspects of Indian title go together since the Crown’s original purpose in declaring the Indians’ interest to be alienable otherwise then to the Crown was to facilitate the Crown’s ability to represent the Indians in dealing with Third parties. Any description of Indian title, which goes beyond these two features, is both unnecessary and potentially misleading.
Ratio: When a native band surrenders land to the Crown, a fiduciary relationship is created and the Crown has a duty to represent the best interests of the Band in its dealings with respect to the land. -THIS IS THE MOST IMPORTANT PART OF THE CASE Notes: One of the dangers of saying that there’s this fiduciary duty, is that it perpetuates the idea that the Crown has taken on a paternalistic role. BUT, Haigh thinks Dickson would acknowledge this, but argue that he only wants to take the stuff from fiduciary duties that make sense in this instance. Also, a fiduciary relationship does not necessarily indicate a paternalistic relationship. Sometimes the person owing the fiduciary is less powerful than the beneficiary (like in the cases of corporations). In this case, the fiduciary duty is not meant to keep the Aboriginals down, always at the mercy of the Crown
SECTION 35 – THE CONSTITUTIONAL ENTRECHMENT OF ABORIGINAL RIGHTS
-s. 35(1) recognizes pre-existing rights of aboriginals – controversy of what ‘existing’ means, and what ‘rights’ means
R v. Sparrow [1990] SCR – page 532
Facts: Sparrow fishing with a net longer than which was allowed under federal regulations. Claimed this law violated his pre-existing native right to fish for food.
Constitutional Law of Canada Issue: Does legislation infringe existing native rights under section 35(1)? (Court elucidates the nature and scope of s. 35 rights): TEST FOR EXISTING RIGHTS 1. What does "Existing" mean? The right must exist when the constitutional act of 1982 came into effect. Court rejects the view that the right must remain frozen. Any attempt to extinguish rights prior to 1982 must have been clear and plain. Regulating the right is NOT ENOUGH; the right must be eliminated all together (i.e. a right controlled is not a right removed). 2. What does "Recognized and Affirmed" mean? This wording imports some restraint on the exercise of sovereign power. Rights that are recognized and affirmed are not absolute. The federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights.
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Steps to determine if there is a violation of section 35(1):
1. Did the legislation in question have the effect of interfering with an existing aboriginal right? (prima facie interference onus is on party claiming interference) To determine an interference, must ask: a) Is the limitation unreasonable? b) Does the regulation impose undue hardship? c) Does the regulation deny to the holders of the right their preferred means of exercising that right? 2. Does this constitute a legitimate regulation of an aboriginal right? (Justification analysis -is the infringement justified? onus on government) a) Is there a valid legislative objective? (An objective aimed at preserving 35(1) rights would be valid, but it has to be balanced with the interests of society as a whole, such as conservation) b) Is the legislation or action consistent with the honor of the Crown?
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o Aboriginal interests have priority: After the objective is accomplished are the aboriginal interests put above other priorities? o Is the regulation required to accomplish the needed limitation? To this end, the Crown could use facts pertaining to fishing by other Fraser River Indians as proof. Further factors that may be considered in a justification analysis: Could the obligation be met by pursuing other feasible options without infringing s.35(1)? - parallels minimal impairment (Oakes) • Were the aboriginals consulted? (re: fiduciary obligation) • If expropriation was involved, was fair compensation obtained? The list of factors to be considered in a justification analysis is not meant to be exhaustive •
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R. v. Van der Peet (1996) – page 545
Facts: The appellant Dorothy Van der Peet was charged under s. 61(1) of the Fisheries act, with the offence of selling fish caught under the authority of an Indian food fish license, contrary to s.27(5) of the British Columbia Fishery Regulations. Defendant argued that selling fish was an existing aboriginal right and should be protected under section 35(1) of the constitution. This case is different from the Sparrow case because of the commercial aspect. The new test, the ‘modified Sparrow test’, gives the word existing a new meaning, “an element of a practice, custom or tradition that is integral to the distinctive culture of Aboriginal peoples.” So this is saying that the practice in question must be central to the culture and something that should have been developed before contact with European settlers. It cannot have developed solely as a response to European influence. “Integral” does not mean “unique” or “distinct”, but it does mean “central” to the cultural identity, part of what makes this culture what it is: take it away and it changes what the culture is. Therefore “integral” varies according to historical evidence from group to group. In the present case, the court held that there was no market for fish before European contact. I.e. if there was a market for fish, it only happened after Europeans came. Therefore, her conviction stands. Case made 2 additions to Sparrow test:
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“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 claiming the right PRIOR TO CONTACT”. Band must show CONTINUITY of the practice up to today. Don’t have to show a ‘completely unbroken chain’, but there must be some kind of thread precontact. Otherwise not ‘true’ s.35(1) right. Distinctive = Defining feature, significant, necessary, central to a culture’s existence. But how can you say what is central to a culture? And what is incidental? Why does the practice have to have come about before contact? Haigh thinks this is very artificial and cheapens culture and it makes it dependant on evidence. Also, focus on pre-contact is problematic: it is focused on reconciliation which should start, according to Lamer, at that time; however, this freezes rights and cultures etc.
Notes:
The new 5 part test based on Sparrow and Van der Peet
Is it an Aboriginal right? 1. Practice must be pre-existing and central – Aboriginals’ burden 2. Not extinguished – Aboriginals’ burden Was the right infringed? 3. Must be infringed by government act – Aboriginals’ burden (from Sparrow) Is the Infringement justified? 4. Government must show adequate justification - Government’s burden 5. Go beyond Crown’s reasonable discretion as fiduciary to show Aboriginal community has “priority” in enjoyment of resources traditionally utilized – Government’s burden You end up getting imbalances between bands that have been well documented and well studied vs. those that haven’t.
R v. Gladstone (1996) SCC – page 565 <AN ANALYSIS OF JUSTIFYING INFRINGEMENT>
Facts: Member of Heiltsuk band charged and convicted of selling herring spawn on kelp w/out proper license.
Constitutional Law of Canada Majority found that there was an aboriginal right (the defendants met all the requirements of the Van Der Peet test), it hadn’t been extinguished and there was a prima facie infringement. Is the infringement justified? (steps 4 and 5 of Van der Peet test) -
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S.35(1) is not part of the Charter (not subject to s.1 or s.33); however, the federal of provincial government may validly interfere with existing Aboriginal or treaty rights if it can demonstrate on the balance of probabilities that 1) it is pursuing a compelling and substantial objective (like conservation) and 2) in a manner compatible with the honor of the Crown Court had to deal with the difference between commercial rights and subsistence rights. There is an “internal limit” to subsistence rights: when you have enough for subsistence, the limit of the right is reached. However, there is no limit to what you can sell commercially – the only limit is demand. If we allow Aboriginals to have unlimited commercial rights, there is the potential that the non-native industry will be destroyed. Therefore, court held that Sparrow test needs to be modified where there are things that are inherently unlimited – i.e. commercial sale. In such cases, government has a legitimate interest in conservation; government may regulate to protect the industry. If it does so, however, it must give priority to the Aboriginal rights if it was part of their culture. Other objectives that qualify as pressing and substantial are: pursuit of economic and regional fairness and the recognition of the historical reliance upon, and participation in, the fisheries of non-Aboriginal groups
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Ratio: Court distinguishes between subsistence needs (Sparrow) and commercial needs where there is no ‘internal limitation’. Commercial rights may be regulated in the interest of public policy. The Crown may impose limitations on resources in a commercial context if it demonstrates that both the process by which it allocated the resource and the actual allocation of the resource were considered. -So, in the end, for infringement of aboriginal commercial rights, the aboriginals do not have priority -The government just has a simple burden to show that they had aboriginals in mind when the commercial right was infringed
R v. Powley (2003) SCC – supp. 13
<THIS CASE DEALS WITH METIS> Facts: Mr. Powley and his son, both Metis, shot a moose in Ontario during a moose hunt. Moose-hunting is a strictly regulated practice in Ontario. Powley had no license “tag” to kill moose. Inspectors charged him under Game and Fishing Act for killing a moose
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without a license or tag. Powley claimed he was exercising Aboriginal right, and the Act was an infringement of s. 35 rights. Issue: What is the appropriate test for determining whether an Aboriginal right exists for the Metis people? Recall from Van Der Peet that test requires claimant to show that right existed prior to European contact. Metis only came into existence with European contact. Decision: - Court held that the VDP test was still in place, just needed to be revised when addressing Metis rights. In a problem such as this, there are SIX steps that must be addressed. o 1. What is the right? Establish that there is a claim for some right by an Aboriginal, which would allow them to avoid some sort of legislative provision or requirement. Right to hunt (court held it need not be framed as the specific right to hunt MOOSE). o 2. Is the defendant part of the group claiming the right? D has to show that there is some sort of ancestral connection to the community they are claiming. Group must still exist today. o 3. Is the practice or tradition integral to the group? Reformulated slightly for Metis – instead of prior to European contact, the right must have existed prior to the period in which Europeans had control over the political system. o 4. Is the claimant able to establish continuity with the practice and the contemporary claim? o 5. Has the right been extinguished? Regulation does not equal extinguishment – must be some express extinguishment; i.e. murder for revenge extinguished by criminal code. o 6. Is there an acceptable justification for the infringement? In Powley, Crown claimed that moose were an endangered group; this might constitute an acceptable justification. However, court held that if any moose hunting were allowed, Metis needed to be given priority. Only if they got rid of moosehunting ENTIRELY on the grounds of endangerment would you be able to justify legislation preventing the Metis from hunting. Another justification arguments tried by the Crown – it is difficult to tell who is a Metis and who isn’t; this will create difficulty in determining who should be afforded right. The court held that the fact that it may be difficult is not a reason to deny Metis the right.
ABORIGINAL TITLE
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Delgamuukw v. British Columbia (1997) SCC – page 575
Preliminary issues -Lamer C.J. considered that the Court was precluded from dealing with the merits of the Gitxsan and Wet’suwet’en claims for two reasons. -First, the individual claims originally brought by each House had been amalgamated into two communal claims, but had not been formally amended. Because this procedural defect was prejudicial to the province’s rights as a litigant, the correct remedy was a new trial. -Second, a new trial was necessary so that the complex and voluminous factual evidence in the case could be assessed in accordance with principles having specific application to Aboriginal claims such as those of the Gitxsan and Wet’suwet’en. <LOWER COURTS SHOULD HAVE USED THE ORAL HISTORY EVIDENCE> The Rules of Evidence -The oral histories and aboriginal perspectives should be respected as evidence -Para 87: “Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with.” -Lamer C.J. found that the trial judge didn’t respect the oral history Features of Aboriginal Title – ABORIGINAL RIGHTS TO LAND Inalienability, in that lands held pursuant to Aboriginal title may be transferred or surrendered only to the Crown Source, in that Aboriginal title arises from (1) They were there first -- occupation of Canada by Aboriginal peoples prior to the Royal Proclamation of 1763: under common law principles, the physical fact of occupation is proof of possession in law; and (2) the relationship between common law and pre-existing systems of Aboriginal law; some of their laws still survived Communal nature, in that Aboriginal title is a collective right to land held by all members of an Aboriginal nation. Content of Aboriginal Title Includes right to exclusive use and occupation of the land for various purposes
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-Aboriginal title to the right to use the land is not restricted only for activities arising from practices or traditions that were integral to the distinctive culture of the group claiming title. Land use must be compatible with the nature of the attachment to the land -Since continuity of relationship also applies to the future, lands subject to Aboriginal title cannot be put to uses that are "irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land which together have given rise to aboriginal title in the first place" (par. 128). For example, a group successfully claiming Aboriginal title to land that was occupied as a hunting ground may not use the land in such a way as to destroy its value for hunting. -This general limitation on the use of lands does not restrict land use to traditional activities, since this would amount to a "legal straitjacket" on those having a "legitimate legal claim to the land." That is, a full range of uses of the land may be undertaken, subject to the "overarching limit" arising from the special nature of the Aboriginal title in the land in question (par.132). -Nothing in this approach precludes the surrender to the Crown of lands held pursuant to Aboriginal title; in fact, such lands must be surrendered and converted into non-title lands if Aboriginal peoples wish to use them in a manner incompatible with their title. Aboriginal Title and Section 35 -Delgamuukw confirmed that common law Aboriginal title, recognized as a common law Aboriginal right prior to 1982, was "constitutionalized … in its full form" by section 35 of the Constitution Act, 1982 (par. 133). -The degree of connection with the land is pivotal in determining the scope of constitutional Aboriginal rights claimed. At one end of the spectrum of rights are those practices or traditions integral to a distinctive Aboriginal culture, but where the use and occupation of land on which the activities occur do not support a claim of Aboriginal title (rights, but not title) 2) In the middle, such traditional activities may be intimately related to a specific piece of land, so that a group is able to demonstrate a "site-specific" right to engage in those activities, but not to establish title to that land. Both forms of activity are protected by subsection 35(1). (connection to the land, but not title) 3) Finally, at the other end of the spectrum, there is aboriginal title itself. … [A]boriginal title confers more than the right to engage in site-specific activities which are aspects of the practices, customs and traditions of distinctive aboriginal cultures. … What aboriginal title confers is the right to the land itself. (par. 138)
1)
Proof of Aboriginal Title TEST FOR ABORIGINAL TITLE (UNIQUE TEST):
Constitutional Law of Canada 1) Occupation prior to sovereignty (585-6)
•
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The date of sovereignty can be established with greater certainty than the date of contact;
Later circumstances may be relevant to title, for instance in cases of dispossession of traditional lands occurring after sovereignty – e.g. a group may have been displaced after sovereignty 2) Continuity (“substantial connection”) between present and pre-sovereignty occupation (586-7) • Conclusive evidence of pre-sovereignty occupation may be hard to produce. Therefore, a group claiming Aboriginal title may prove such occupation through evidence of present occupation, supplemented by evidence of continuity. The claiming group need not establish "an unbroken chain of continuity," but rather "substantial maintenance of (their) connection" with the land (par. 153)
3) Exclusive occupation (“intention and capacity to maintain exclusive control”) (587-8) • • • • The test for exclusive occupation in Aboriginal title claims must consider the context of the Aboriginal society in question at sovereignty. In this light, exclusive occupation can be demonstrated, depending on the circumstances, even if other Aboriginal groups were present on or frequented the lands claimed. Aboriginal title can still be claimed even if the land was shared by other groups Moreover, evidence of non-exclusive occupation may still establish shared, sitespecific Aboriginal rights short of title – this the right to use the land, but not actual TITLE
Justification of Infringement of Aboriginal Title 1) Infringement must further a compelling/substantial legislative objective Substantial legislative objectives are those directed at the purposes underlying the constitutionalization of Aboriginal rights, i.e., 1) recognition of Aboriginal peoples’ prior occupation of North America, and 2) reconciliation of that occupation with the Crown’s assertion of sovereignty (COMPROMISE). – You were here first, we’re here now, so let’s compromise A broad range of legislative objectives may justify infringement: (T)he development of agriculture, forestry, mining and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign
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populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title. (par. 165) 2) The Infringement must be consistent with the fiduciary relationship -Have to ask whether they acted I accordance with the honor of the crown in breaching the fiduciary duty towards aboriginials The nature of the fiduciary duty is determined by the nature of the title The Chief Justice pinpointed three aspects of Aboriginal title as relevant in this respect. 1) QUASI-PRIORITY: First, the right to exclusive occupation and use of the land influences the degree of scrutiny of infringing actions. For instance, a fiduciary duty requiring that Aboriginal title be given priority does not entail an absolute requirement, but rather a government demonstration that the process of resource allocation and the actual allocation reflect the prior interest of the holders of Aboriginal title (This is the priority “test” from Gladstone). <e.g. IN THE PROCESS OF BUILDING THIS ROAD, WE THOUGHT ABOUT YOU – BOTH IN THE PROCESS OF BUILDING THE ROAD AND THE EFFECTS IT WOULD HAVE – HAVE TO TAKE ABORIGINALS INTERESTS INTO ACCOUNT AT BOTH THESE STAGES> 2) DUTY TO CONSULT: Second, the fact that Aboriginal title includes the right to choose the uses of land suggests that the fiduciary relationship may be satisfied by involving Aboriginal titleholders in decisions respecting their lands. While the Crown always has a duty of consultation, the nature and scope of that duty vary with the circumstances – Sometimes they need full permission, sometimes they need very little 3) FAIR COMPENSATION: Third, as a result of the "inescapably economic aspect" of Aboriginal title, fair compensation will ordinarily be required to fulfill the Crown’s fiduciary duty when Aboriginal title is infringed. The amount of compensation will vary according to the nature of the Aboriginal title in question, the severity of the infringement, and the extent to which Aboriginal interests are accommodated.
Aboriginal Treaty Rights
General Principles of Treaty Interpretation:
• • • •
large and liberal interpretation doubts resolved in favor of Aboriginal signatories sensitivity to Aboriginal perspective honor of the Crown
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•
common intention
R v. Marshall (1999) SCC – page 593
Facts: Marshall, a Mi’kmaq citizen, was charged with selling eels without a license contrary to federal regulations made pursuant to the Fisheries Act. Marshall claimed he was entitled to sell the eels by virtue of a treaty right agreed to by the British Crown in 1760. In the treaty of 1760, the Mi'kmaq's ability to trade with non-government persons was restrained: “and I do further engage that we will not traffick, barter or Exchange any Commodities in any manner but with such persons or the managers of such Truck houses as shall be appointed or Established by [the Crown]”. Issue: Did Marshall have an existing treaty right exempting him from compliance with the Fisheries act? -Does the exemption clause actually grant him a positive right to trade, because the truck houses don’t exist anymore, so should he be able to trade generally? Decision: Court infers the right to trade fruits of Mi’kmaq hunting and fishing into the treaty. Court infers the treaty term by reference to the historical record, stated objectives of the parties, and political and economic context in which these objectives were reconciled. HELD: Appeal allowed and acquittal entered on all charges. o The trade arrangement had to be interpreted in light of the oral promises made by the Crown during the treaty negotiations. The Crown's promise of the Mi'kmaq's access to necessaries through trade in wildlife was the key. o Where a right had been granted, there had to be more than a disappearance of the mechanism created to facilitate the exercise of the right to warrant the conclusion that the right was extinguished. (i.e. the main point of the agreement was access to necessaries, not to provide Truck houses or limit who Mi’kmaq could trade with). Analysis: Evidentiary Sources -Cannot follow a strict/narrow interpretation, the historical and cultural context is needed, which could involve using extrinsic evidence -The Court’s obligation is to “choose from among the various possible interpretations of the common intention [at the time the treaty was made] the one which best reconciles” the Mi’kmaq interests and those of the British Crown (quote from Sioui). The 1760 Negotiations
Constitutional Law of Canada Mi’kmaq objective: access to the European “necessaries” on which they had come to rely British objective: peaceful relations with a self-sufficient Mi’kmaq people These objectives could not have been achieved unless the Mi’kmaq were assured at the same time of continuing access, implicitly or explicitly, to wildlife to trade. Therefore, the restrictive trade covenant of the written treaty was inadequate and incomplete by itself. The common intention in 1760 must be given effect, not just the terms of the written document. Ascertaining the Terms of the Treaty
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-The court will use the “officious bystander test” <THIRD-PARTY OBJECTIVE TEST> to fill in implicit assumptions: “if the Mi’kmaq are to have something to trade, they obviously need to be given the right to hunt and fish.” Rights of the Other Inhabitants -Aboriginal treaty rights should be given priority over other people, because they’re constitutionally under s. 35 Honor of the Crown -The honor of the Crown is always at stake in its dealings with Aboriginal people - -In this case, it would be dishonorable of the crown to give them an “an empty shell of a treaty promise” The Limited Scope of the Treaty Right -The amount of fishing can be limited – but this limitation can still be enforced without violating treaty rights -To test for this, use the “Badger Test” (SEE BELOW) “Necessaries” means a “moderate livelihood” (Van der Peet) and includes such basics as “food, clothing and housing, supplemented by a few amenities” but not the accumulation of wealth (Gladstone). It addresses day-to-day needs. This was the common intention in 1760. Application to the Facts of This Case -This test from Sparrow was applied to licensing schemes in Adams: “Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing Aboriginal rights in a substantial number of applications in the absence of some explicit guidance.
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-Badger holds that the test for infringement under s. 35(1) (Sparrow test) is the same for both Aboriginal and treaty rights. Therefore, the test from Adams (above) applies. <THE TEST BASICALLY STATES THAT THE MINISTER MUST NOT BE GIVEN TOO MUCH DISCRETION IN AN ABORIGINAL TREATY RIGHT> -For these reasons, the regulations are a prima facie infringement of Mi’kmaq treaty rights and are inoperative against the appellant unless justified under the Badger test. -The prohibitions on catching and retaining fish without a license, on fishing during the close time, and on the unlicensed sale of fish (…) are inconsistent with the treaty rights of the appellant contained in the Mi’kmaq treaties of 1760-61 and are therefore of no force or effect or application to him by virtue of ss.35(1) and 52 of the Constitution Act, 1982.
Duty to Consult
-The duty to consult with Aboriginal peoples arises whenever the Crown is contemplating a course of action that could have an impact on Aboriginal rights or on lands subject to a claim of Aboriginal title, even if the Aboriginal rights or title at issue has been asserted but not yet proven
Haida Nation (2004) SCC - supp.18
• Decision involved Aboriginals who had a land claim to a specific area and surrounding waters and the provincial government was authorizing forestry to take place on the land that the Aboriginals were claiming before the decision come out from the court The Supreme Court of Canada held that the government cannot just go ahead and build a highway before the land claim was established in court. They must consult with the Aboriginals first. The degree of consultation depends on the strength of the claim and the severity of the resource, however it must be meaningful consultation. Therefore the building of the highway as it were was invalid. Crown had a duty to consult and accommodate the Haida Nation before permitting the harvesting of timber on lands subject to prima facie case of Aboriginal title
•
• •
Taku River Tlingit First Nation 2004 SCC, supp.20
Crown had satisfied its duty to consult regarding construction of road through TRTFN’s traditional territory “The duty to consult varies with the circumstances. It arises when a Crown actor has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. This in turn may lead to a duty to accommodate Aboriginal concerns. Responsiveness is a key requirement of both
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consultation and accommodation. The scope of the duty to consult 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.”
Mikisew Cree First Nation 2005 SCC, supp.21
-The duty to consult is triggered at a low threshold, but adverse impact is a matter of degree, as is the extent of the content of the Crown’s duty. Here, the duty to consult is triggered - Crown breached a duty to consult before building a road on land subject to treaty right to hunt, fish and trap
Distribution of Legislative Authority
s. 91(24) confers Parliament the authority to pass laws in relation to “Indians, and Lands reserved for the Indians.” R v. Southerland (1980): a province, generally speaking, is not entitled to “single out” Aboriginal peoples. A province, may in some circumstances, regulate Aboriginal peoples by “laws of general application.”
- s.88 of the Indian Act: renders provincial laws of general application applicable to Indians if they don’t conflict with treaty rights or deal with matters dealt with by the Indian Act - s.35(1) of the Constitution Act, 1982: provincial or federal legislation cannot violate Aboriginal or treaty rights unless the government can demonstrate that the violation is consistent with the honour of the Crown
Delgamuukw v. British Columbia (1997) SCC – page 607
Issue: The province wanted to extinguish aboriginal rights on its own, did the province have the power to extinguish Aboriginal rights after 1871, either under its own jurisdiction or through the operation of s.88 of the Indian Act?
Primary Jurisdiction
“Lands Reserved for Indians”
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- St. Catherine’s Milling: Although on extinguishment of Aboriginal title, the province would take complete title to the land, the jurisdiction to extinguish lies with the federal government. “Indians” - s.91 (24) protects a “core” of Indianness from provincial intrusion through the doctrine of interjurisdictional immunity. - The core falls within the scope of federal jurisdiction over Indians. - The core encompasses Aboriginal rights, including the rights that are recognized and affirmed by s. 35(1) - Laws which purport to extinguish those rights therefore touch the core of Indianness which lies at the heart of s. 91(24), and are beyond the legislative competence of the provinces to enact. - The core of Indianness encompasses the whole range of Aboriginal rights that are protected by s. 35(1). Those rights include rights in relation to land (that part of the core derives from s. 91(24)’s reference to “Lands reserved for the Indians.”) But those rights also encompass practices, customs and traditions which are not tied to land as well (that part of the core can be traced to federal jurisdiction over “Indians”.)
Provincial Laws of General Application
s. 91(24) gives exclusive jurisdiction over Indians and Indian lands to the federal government and precludes provincial laws in relation to those matter. Provincial laws which single out Indians for special treatment are ultra vires because they are in relation to Indians and therefore invade federal jurisdiction (Interjurisdictional Immunity) Notwithstanding s. 91(24), provincial laws of general application apply proprio vigore to Indians and Indian lands However, a provincial law of general application cannot extinguish Aboriginal rights
Section 88 of the Indian Act
Provincial laws which would otherwise not apply to Indians proprio vigore, however, are allowed to do so by s.88 of the Indian Act, which incorporates by reference provincial laws of general application. S.88 does NOT “invigorate” provincial laws which are invalid because they are in relation to Indians and Indian land (i.e. despite s.88, provincial laws that are in pith and substance related to Indians and Indian lands are still invalid) S.88 only extends the effect of provincial laws of general application which cannot apply to Indians and Indian lands because they touch on the Indianness at the core of s. 91(24) (i.e. s.88 allows provincial laws of general application – meaning in pith and substance related to some valid provincial head of power and not singling out First Nations- to regulate Aboriginal rights at the core of
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Indianness) For example, a provincial law which regulated hunting may very well touch on the core and although such a law would not apply to Aboriginal people proprio vigore, it would still apply through s.88 of the Indian Act, being a law of general application. Such laws are enacted to conserve game and for the safety of all. Provincial laws of general application which, through the power delegated by s.88, apply to Aboriginal people CANNOT extinguish Aboriginal rights since s.88 does not show the required clear and plain intent to extinguish Aboriginal rights. S.88 does not even suggest such an extinguishment.
s.88 of the Indian Act: renders provincial laws of general application applicable to Indians if they don’t conflict with treaty rights or deal with matters dealt with by the Indian Act - s.35(1) of the Constitution Act, 1982: provincial or federal legislation cannot violate Aboriginal or treaty rights unless the government can demonstrate that the violation is consistent with the honour of the Crown
Dick v. The Queen (1985) SCC – page 611
Facts: Dick killed deer out of season contrary to provincial Wildlife Act. Issues: 1) Is the Wildlife Act inapplicable to Indians as invading federal jurisdiction under s. 91(24)? 2) If the Act is inapplicable, can the provincial law nevertheless apply to Indians by virtue of s.88 of the Indian Act? Issue #1 SCC acknowledges that there was extensive evidence at trial capable of supporting the claim that hunting is part of the core “Indianness” of the Alkali Lake Band. However, SCC states that there was also enough evidence to support the opposite conclusion Therefore, SCC does not decide issue #1, but does assume that the dissent of the Court of Appeal Judge is correct i.e. hunting IS a part of the core “Indianness” of the Alkali Lake Band
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Issue #2 The test for determining whether a provincial law is a law of general application within the meaning of s.88 must analyze both legislative intent (i.e. purpose/policy) and the effect of the legislation.
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Effect can evidence intent In the present case, there is no evidence that the province enacted the Wildlife Act for the purpose of singling out Indians Therefore, even if we assume that the Wildlife Act affects the core of “Indianness”, it is a law of general application and it still applies to Indians because of s.88
Class Notes on Dick: -- <THIS IS HOW THINGS HAPPENED BEFORE s. 35, THIS WOULD BE DECIDED DIFFERENTLY TODAY> can provincial wildlife legislation regulating hunting apply to Aboriginal people? (1982 Act does NOT apply retroactively so Charter does not apply, so Dick had to argue under separation of powers) was provincial law in pith and substance inter vires the province? YES – property and civil rights and it was a law of general application (it did not single out Aboriginal people) okay, it’s valid, but does it have to be read down due to the interjurisdictional immunity doctrine? Hunting is at the “core of Indianness” so the provincial law does not apply of its own force read down Impact of s. 88: Dick not exercising a treaty right, Wildlife Act is a law of general application (absence of intent to single out aboriginals) provincial law does apply would the result in Dick have been different if Dick was exercising a treaty right? see Morris 2006 SCC the provincial law would not be applicable since it would conflict with a treaty right (s.88 would not apply)
would the result in Dick have been different if the hunting at issue occurred after April 17, 1982? violation of Aboriginal rights since the activity was central and integral to his distinctive to his culture prior to aboriginal contact and some continuation of practice Sparrow: precisely because it was a law of general application, it will not survive the test the government did not give any priority to the Aboriginal right to hunt
why are provincial family laws dealing with rights of ownership and possession of family homes (eg Part II of the Ontario Family Law Act) not applicable to “Indians” on reserves? provincial laws dealing with possessory rights in land can NOT apply to reserves (they must be restricted in their application)
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what about s.88? lands are already dealt with in the Indian Act, so s.88 does NOT apply.
Kitkatla Band v. BC (2002)
upheld the provincial Heritage Conservation Act as in pith and substance in relation to “property and civil rights” notwithstanding the fact that the challenged provisions dealt specifically with the preservation of Aboriginal cultural artifacts. The impugned provision were found to be sufficiently well integrated within the legislation to be necessarily incidental Note that in this case, there was no evidence adduced that the provisions of the HCA affected the essential and distinctive values of Indianness. Therefore, there was no question of paramountcy or interjurisdictional immunity in this case
Governance
-Is the right to self-government for Aboriginals protected by the Constitution -The right to self-government was never officially extinguished by the government or recognized by the courts - The SCC left the issue open in Pamajewon 1996. In Delgamuukw 1997, the Court indicated that it is not willing to consider the issue defined in "excessively general terms" and remitted the question to trial. The B.C.C.A. had split on the question of whether aboriginal peoples in B.C. have an existing Aboriginal right of self-government: Delgamuukw v. B.C. (1993), 104 D.L.R. (4th) 470 (B.C.C.A.).
R v. Pamajewon (1996) SCC – page 619
The Court rejected a claim by the Shawanaga and Eagle Lake First Nations to operate and regulate gambling activities on their reserves without complying with the licensing provisions of the Criminal Code. The claimants took the position that the rights claimed were part of their broader rights to self-government and to manage economic development in their communities. Lamer C.J. was willing to "assume without deciding that s. 35(1) includes selfgovernment claims". Any such self-government claims, he says, are claims for Aboriginal rights and just like any other Aboriginal rights, they need to pass the Van Der Peet test. In Lamer’s view, the evidence did not establish that gambling, or the regulation of gambling, was an integral part of the distinctive cultures of the Aboriginal claimants. Informal gambling activities took place on a small scale prior to contact, but the Court found that there was no historical equivalent of the "large scale", "twentieth century phenomena" at issue in this appeal
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PART 3 – THE CHARTER
4 stages of Charter analysis 1) Does the Charter apply to the facts? 2) Does the challenged government action interfere in purpose or effect with the exercise of a Charter right or freedom? (ss.2-23)
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3) If so, is the interference with the exercise of rights and freedoms a “reasonable limit”, “prescribed by law”, that can be “demonstrably justified in a free and democratic society”? (s.1) – shift of onus on the government <OAKES TEST> 4) If not, what is the appropriate remedy? (ss.24 and 52) – courts are given discretion over what the appropriate remedy is for a Charter infringement
I. Interpreting Rights A. Purposive Approach Hunter v. Southam [1984] SCC – page 738
Facts: A search of newspaper offices was carried out by the Combines investigations branch. The statutory basis for the search did not require a warrant. One newspaper challenged the constitutionality of the Combines investigation Act under s. 6 of the Charter – protection from unreasonable search and seizure. Issue: Whether the types of searches permitted under the act were “unreasonable” and thereby invalid under s. 6 of the Charter. Decision: Impugned provisions of the CIA were found invalid. Analysis: Importance of this case is the court’s approach to interpretations of Charter provisions. Ratio: Court expressed the view that the proper approach to the definition of Charter rights and freedoms is purposive. The meaning of a right/freedom is to be ascertained by an analysis of the purpose of the guarantee. SCC stated that a judgment about the scope or value of a particular right can only be made after the court has "specified the purpose underlying" the right or "delineated the nature of the interests it is meant to protect" Therefore, government’s search and seizure powers are not justified in light of a reasonable objective; rather, courts must consider the reasonableness of the impact on the subject of the search and seizure.
R v. Big M Drug Mart Ltd (1985) SCC – page 740
(Included in this section to demonstrate SCC’s purposive approach to Charter interpretation.) Analysis: Charter provisions must be given a large and liberal interpretation Must consider the purpose and effect of the government action Interpretation must be “purposive”: i.e., a Charter right of freedom should be interpreted “in light of the interests it was meant to protect” To determine the purpose of a Charter right or freedom (Big M): 1. Must be considered with reference to the character and larger objects of
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Charter 2. Language used in the text to describe right or freedom 3. Historical origins of the concepts enshrined 4. Meaning and purposes of associated rights: a generous rather than legalistic interpretation (purposes: protection from coercion or state orthodoxy, protect individual conscience from state/church coercion)
B. Aids to / Sources of Interpretation
1) Interpretive Provisions in the Charter S. 25, 27, 28 - don’t create new rights, but provide guidance to how Charter should be interpreted 2) Parliamentary and Committee Debates What weight should courts place on drafting history? Lamer said should be admissible, but not determinative, given only little weight Because of multiplicity of actors - difficult to determine whose opinion should matter Need for dynamic interpretation - constitution should not be frozen in time the official version is that history should not weigh heavily; however, in practice, legislative history does play an important role First Charter case - SCC used legislative history: Quebec was said to go against the very reason s. 23 was legislated Prosper – legal aid case – can hire own lawyer, but is there a Charter right for statefunded counsel in criminal cases? NO when the drafting history is very clear (amendment was originally offered to this effect, but rejected), then the court should not interfere
3) Canadian Pre-Charter Jurisprudence Federal statute - Canadian Bill of Rights (Applies only to federal government) -Sets out range of rights/freedoms that overlap with Charter -Main difference is the CBR could be repealed but Charter is constitutionally entrenched because CBR purported to give new rights and freedom, courts gave it little weight since it could be overturned or modified at any point by the legislature the court’s refusal to follow CBR jurisprudence in Charter interpretation is a clear break with the tradition of parliamentary supremacy CBR jurisprudence: Bliss – discrimination against pregnant women is not gender based, it is “pregnancy based” (HA!) Lavale – provision of Indian Act – Status woman lost status if she married “out”; the same was not true for status males court decided this was not gender discrimination
Constitutional Law of Canada since the law applied equally to all women (HA!) Statutory human rights jurisprudence (re equality rights in s.15) statutory anti-discrimination law IS important to Charter interpretation do NOT leave this out when interpreting equality rights in s.15 4) International Sources foreign law (i.e. comparative constitutional jurisprudence) is “relevant and persuasive” (744-5) -
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US constitutional interpretation is usually where courts turn to re Charter interpretation (we share constitutional aspiration/cultural values and also they have 2 centuries of bill of rights interpretation) Engagement with foreign law is sporadic especially in a global context (we export interpretation methods rather than import them) we should always be VERY weary of following US rights jurisprudence (our Charter rights can be limited by s. 1) given their different structures and historical contexts, similarly worded rights in US and Canada are given different interpretations
international jurisprudence: Charter should be interpreted in a manner consistent with Canada’s international commitments (743-8) 5) Charter case law - 20 years’ worth of Charter jurisprudence Three types of claimants have standing to raise a Charter argument: 1. Anyone whose rights are directly affected. 2. Anyone who has been charged with an unconstitutional offence, whether corporate or individual. (Big M & Morgentaler) 3. Anyone who satisfies public interest standing. To satisfy the test for standing: a. The government action must raise a serious issue of invalidity b. The plaintiff must have a genuine interest. (not a mere busy-body) c. There must be no other reasonable and effective way to bring the issue before the court
II. Defining Limitations: Section 1 – page 748 Section 1 in a nutshell: • “guarantees” rights and freedoms subject only to reasonable limits • Limits are prescribed by law – limitation must originate in a statute, regulation or
common law rule (Therens 1985 SCC, 749); You cannot argue that your Charter rights have been infringed unless there is legislation that infringes them (for example: you
Constitutional Law of Canada cannot claim the police have violated your Charter rights unless they were acting under some statutory authority that violates Charter rights) • pressing and substantial objective • proportionality test – rational connection – minimal impairment – proportionate effects
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A. Prescribed by Law
1) ACCESSIBILITY - The law must be adequately accessible 2) INTELLIGIBILITY - A norm cannot be regulated as “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able, if need be with appropriate advice - to foresee, to a degree that is reasonable in the circs, the consequences which a given action may entail. 3) VAGUENESS - Cannot be too vague; need precision inherent in notion of law
R v. Nova Scotia Pharmaceutical Society [1992] SCC – page 751
Facts: Accused was charged under the CIA for “conspiring to lessen competition unduly in the sale of competition drugs”. They challenged the constitutionality of the charges, on the grounds that the provisions under which they were charged were unconstitutionally vague. Decision: Appeal dismissed. Provisions are not so vague that they would be rendered unconstitutional. A law/provision is unconstitutionally vague if: Vague provision does not provide an adequate basis for legal debate – you can’t reach a conclusion about what it means by applying legal reasoning to 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 – i.e. it doesn’t tell you what you can and cannot it Offers no grasp to the judiciary – the judiciary can’t grasp it
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For these reasons, an unintelligible provision gives insufficient guidance to the courts and is therefore unconstitutionally vague. Threshold for finding a law unconstitutionally vague is relatively high However, courts must be wary of using the doctrine of vagueness to prevent or impeded State action in furtherance of valid social objectives; a measure of generality is also sometimes necessary to promote greater respect for fundamental rights. (Basically, the court fails to provide any coherent basis for actually determining vagueness – seems more to do with policy considerations).
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Bruce Ryder: – only a drastically vague law will likely fail the test; as long as there is some degree of certainty that can open a legal debate, the test is met
B. Justification
1. The Oakes Test: The SCC’s first comprehensive treatment of the meaning of Section 1 came in Oakes. Oakes remains the primary referent for this stage of Charter adjudication.
R v. Oakes [1986] SCC – page 756
Facts: Appeal concerning constitutionality of s. 8 of Narcotic Control Act, which provides that if the court finds accused in possession of a narcotic (beyond RD), he/she is presumed to be in possession for the purposes of trafficking UNLESS the accused can establish the contrary (on BOP). SCC: Court devised ‘Oakes Test’ (for deciding whether a constitutional right may be overridden) 1) Is the constitutional infringement prescribed by law? (Set out in a legal rule, publicly accessible, not too vague – as per NS Pharmaceutical). 2.) Is the legislative objective significant (pressing and substantial in a free and democratic society) enough to warrant overriding a constitutional right? 3) Are the means chosen to achieve this objective reasonable, demonstrably justified and PROPORTIONATE? a) Rational Connection - The measures adopted must be carefully designed to achieve the objective in question; must not be arbitrary, unfair or irrationally based. b) Minimal Impairment - Even if rationally connected to the objective, the means should impair “as little as possible” the right or freedom in question. c) Proportionality – Must be proportionality between the negative effects of the law and the legislative objective. Held: SCC held that the violation disputed by Oakes was NOT justified since it failed the first part of proportionality test there is not a sufficient rational connection between proof of possession and presumption of intention to traffic. The Subsequent Development of the Oakes Test: Context and Deference – page 763 -A new contextual approach Origins of the “contextual” approach to s. 1 lie in the following case (Edmonton Journal):
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Edmonton Journal v. Alberta (Attorney General) [1989] SCC – page 764
Facts: Newspaper challenged Alberta legislation which limited the publication of info arising out of matrimonial legal disputes. (Haigh: Facts not important. Case is valuable for its elucidation of contextual approach to s. 1 analysis.) Decision: Court upheld constitutionality of legislation. Analysis: Must look at all the rights in the Charter in their CONTEXT and look at the practical consequences of violating those rights. SCC recognizes particular right or freedom may have different value depending on context Contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it Freedom of expression may have a greater value in a political context than in does in the context of disclosure of details to a matrimonial dispute. Ratio: The right/freedom in question must be assessed in context rather than in the abstract. Law is a pragmatic instrument and we shouldn’t think about rights and freedoms devoid of reality. This necessitates taking values into account. There will be different contexts, values to consider. Some rights are more worthy of protection than others.
Irwin Toy Ltd. v. Quebec (AG) [1989] SCC – page 766
(Case represents “high water mark of judicial deference”). Court held that greater deference to legislative choice is appropriate in a variety of circumstances: where the government has sought to balance competing rights to protect a socially vulnerable group; to balance the interests of various social groups competing for scarce resources; or to address conflicting social science evidence as to the cause of a social problem. This case introduced a distinction between cases in which the government is seeking to mediate the interests of competing groups (where a more deferential application of s. 1 is appropriate), and cases in which the government is the singular antagonist of the individual whose right has been infringed (where a more stringent application of s. 1 is warranted).
Dagenais v. Canadian Broadcasting Corp
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Court added a refinement to the third part of the Oakes proportionality test. The Dagenais refinement requires that in balancing the positive and negative effects of the impugned law, the court needs to compare the actual impact of the law on the affected right with the actual contribution the law makes to its pressing and substantial purpose. As such, the focus here is on actual effects, not abstractions. This call for a more contextual approach has been interpreted by the court to also mean a greater flexibility in the application of each of the steps of the Oakes test and greater deference to legislative judgment (in certain circumstances) when applying the test. Irwin Toy (above) is a good example of this deferential approach.
Thompson Newspapers Co. v. Canada [1998] SCC – page 768
Facts: Federal government prohibited the release of Opinion polls 3 days before elections (under Canada Elections Act) as a means of curtailing misleading info. Issue: Is elections Act justified under s. 1? (Court quickly affirms that 2b HAS, in fact, been infringed – courts will generally hold that any “expressive content” constitutes a right protected under 2b). Decision: Restrictions held to be an unjustified limit on freedom of expression. No evidence that release of opinion polls would negatively impact upon voters. (Decision is important for its discussion and synthesis of the Court’s “contextual approach” to s. 1.) Analysis: “The analysis under s. 1 of the Charter must be undertaken with a close attention to context”. Factors to consider under contextual approach: The vulnerability of the group which the legislator seeks to protect (Irwin Toy) The group’s own subjective fears and apprehensions of harm (Keegstra). The inability to measure scientifically a particular harm in question, or the efficaciousness of a remedy (such evidential difficulties should not preclude section 1 justification - as in R. v. Butler). The nature of the activity/expression being infringed.
RJR Macdonald Inc. v. Canada [1995] SCC – page 770
Facts: Tobacco companies brought 2(b) Charter challenge against government regulations restricting cigarette advertising; also challenged government regulations requiring them to place warnings on cigarette packages. Issue: Is the legislation justifiable under section 1? Majority: Parliament must justify ANY restriction on right (on balance of probabilities)
Constitutional Law of Canada Government doesn’t meet its onus in this case. Government didn’t adduce sufficient evidence to demonstrate that alternative measures could have been used to achieve same purpose. Dissent (LaForest):
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Bans on ads are restrictions on speech and forced warnings violation of right to remain silent. If you are forced to say or not to say something they are both equal breaches of freedom of expression Oakes is not a ‘unified’ rigidly constructed test. Evidential standards in Oakes will necessarily vary depending upon the case you are dealing with. Especially when there is NO definitive scientific evidence. New reading of Oakes which is unsupported by other SCC judgments. Probably falls under the IRWIN category of the state intervention in the protection of citizens. Ratio: Court is wary of unhinged contextual, deferential s. 1 analyses (as per Irwin Toy). Holds that context, deference and the standard of proof (flexible and realistic) must NOT be attenuated to the point that they relieve the state of the burden imposed by the Charter. Nothing in jurisprudence suggests that contextual approach reduces obligation on state to meet burden of demonstrating that limitation on rights imposed by law is reasonable and justified. Context essential; but cannot be carried to extreme of treating challenged law as unique socio-economic phenomenon, of which Parliament deemed best judge.
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R v. Lucas [1998] SCC – page 771
(Only McLachlin’s dissent is excerpted) McLachlin J dissented from the majority judgment of Cory J, who upheld defamatory libel provisions of the Criminal Code as a justified restriction on the freedom of expression. The excerpt is basically her explanation of why she differed from Cory. In his judgment, Cory J took into consideration the fact that defamatory libel is of “negligible value”, and thus it is entitled to “minimal protection.” McLachlin says we have to be careful not to let the discussion of context preempt the judgment: “The initial conclusion that the expression is of low value may thus dictate the conclusion on the subsequent steps of the analysis in a circular fashion.” Instead, such contextual considerations should be left to the final stage of the analysis, which engages the balancing of values envisioned by the contextual approach. At that stage, the crown has already had to establish the pressing and substantial nature of the legislative objective, the rational connection between the objective and the limitation of the right, and the minimal impairment or appropriate restraint, independent of any subjective considerations of value. Then the task is to determine
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Constitutional Law of Canada whether the benefits of the limitation outweigh its detrimental effects. This way, the S.1 analysis remains both flexible and contextual. “Legislative limits on expression that fall far from the core values underlying s.2(b) are easier to justify, not because that standard of justification is lowered, but rather because that beneficial effects of the limitation more easily outweigh any negative effects flowing from the limitation.”
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Ratio: Cory J.’s section 1 analysis was preempted by his acknowledgement that the type of speech infringed was of minimal value, and thereby entitled to “minimal protection”. In dissent, Mclachlin warns that such value judgments should be left to the final stage of the section 1 analysis, so as not to preclude a fair analysis of the nature of the infringement.
Section 1 Summary Objective of infringing law
• • • • • •
• •
objective of the infringing law must be “sufficiently important” to justify overriding constitutional rights or freedoms (758): Big M 1985 SCC; Oakes 1986 SCC must be “pressing and substantial” (758) - this is usually not a great hurdle for the government in practice purposes directly contrary to Charter values do no qualify (e.g., Big M, note 1 759) the government must rely on the legislative intent at the time of enactment, not a new or “shifting” objective (Big M, note 1 759-60) nor can the government rely on an ultra vires objective (Big M) – if the purpose is a secular day of rest, then it is no longer criminal law! It relates to property and civil rights and is therefore UV the Parliament fiscal restraint, on its own, cannot normally qualify as a pressing and substantial objective; it can, however, when there is a “fiscal crisis”: NAPE 2004 SCC (supp.43) government rarely fails to demonstrate that infringing laws meet the “pressing and substantial objective” test
nevertheless, how objective is framed has an important impact on the outcome of the proportionality analysis (e.g. Irwin Toy 1989 SCC) Majority of SCC: objective is protection of young children from manipulative advertising Dissent: objective is to promote welfare of children Even though both majority and dissent passed the law on pressing and substantial branch, the dissent’s characterization leads to a less clear ration connection later in the test. • focus should be on the objective of the infringing measures (e.g. Vriend 1998 SCC) Proportionality: 1. rational connection
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758)
means/ends rationality: measures “must not be arbitrary, unfair or based on irrational considerations” (Oakes, law’s means must contribute to the achievement of its objectives easily satisfied in most cases
• •
• • • •
Proportionality: 2. minimal impairment the turning point of the s.1 analysis in most cases means chosen must be the least restrictive manner of accomplishing the objective of the impugned provisions requires a consideration of alternatives available to government
rigor of test (“necessity”) has been reduced in many cases since Oakes: e.g., “as little as is reasonably possible” test in Edwards Books (747) • Necessity or reasonableness? How much deference?
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•
Some factors the courts consider in their contextual analysis are:
1)
2)
3) 4) 5) 6) 7)
the importance of the rights or freedoms at issue in the specific context (eg Edmonton Journal 1989 SCC, 764; Thomson Newspapers 1998 SCC, 768); whether the legislature carefully weighed the competing rights or freedoms at issue; whether the legislation protects a vulnerable group (eg Irwin Toy 1989 SCC, 766); whether the claimant is a member of a relatively powerful group (Irwin Toy); whether the issue requires the consideration of complex social science evidence (Irwin Toy); whether the law seeks to reconcile the legitimate claims of competing groups (Irwin Toy); Whether the law allocates scarce resources (NAPE).
Proportionality: 3. proportionate effects
• – – • • • • • •
must be a reasonable balance between the negative effects on the exercise of Charter rights or freedoms and the importance of the objective (Oakes); and the positive effects of the government action (Dagenais 1994 SCC, 761 note 3)
Summary of components of s.1 analysis limit authorized by intelligible law? objective of infringing law? means selected to achieve objective? availability of alternative means? negative effects on the exercise of rights or freedoms? positive effects of infringing measure?
III. The Override/Notwithstanding Clause (s.33) – page 775
• Enables parliament or legislature to override s 2 or s.7-15 of the Charter If a statute contains an express declaration that it is to operate notwithstanding a provision in s.2 or 7-15 of Charter, then by virtue of s.33(2) the statute will operate free from the invalidating effect of the Charter provision referred to in the declaration Through the use of this power, Parliament or Legislature is enabled to enact a statute limiting (or abolishing) one or more of the rights or freedoms guaranteed in 2, 7-15 Override power, if exercised, removes the statute containing the express declaration from the reach of the Charter provisions referred to in the declaration without the necessity of any showing of reasonableness or demonstrable justification Subject to a temporal restriction - sunset clause - express declaration will automatically expire at the end of five years Rationale is to encourage legislature to reconsider the issue regularly Must “expressly” declare that a statute is to operate notwithstanding a Charter right Not to be inferred, must have “manner and form” requirement that is essential to validity of any statute enacted in violation of provision contained in 2,7-15 Express declaration must be specific to the statute, must be in the statute itself
Constitutional Law of Canada Must be specific as to Charter right which is to be overridden
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Ford v. Quebec [1988] SCC – page 775
Facts: Quebec, only province to oppose the creation of the Charter, wanted to create an automatic rule that would have ALL their legislation operate notwithstanding the Charter. Issue: Is an all-encompassing (omnibus) use of the override valid? Decision: - SCC held that omnibus reference to rights was sufficient; 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” - SCC held normal presumption against retroactivity should be applied to the language of s.33, and the section should be construed as permitting “prospective derogation only.” Ratio: The court held that Quebec could enact this blanket legislation immunizing all their legislation from Charter scrutiny, under section 33 (need express language such that the infringement on Charter rights would be sufficiently drawn to public attention). However Quebec could not do this retroactively (would not apply to legislation already in effect prior to the omnibus legislation). General Class Comments: - Despite ease with which s. 33 may be invoked, use of the override would be politically crippling for most governments - Mechanism is simple but in reality, the political costs of invoking s.33 will keep governments in check. - If the federal government had used s. 33 selectively since 1982, it might be acceptable to use it now. But we have created a culture in which the use of the clause would now be met with political disapprobation.
The Application of the Charter – page 781
WHO THE CHARTER APPLIES TO Interpretation of s. 32(1) of Charter: "This charter applies to the parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to Yukon Territory and Northwest Territories; and to the legislature and government of each province in respect of all matters within the authority of the legislature of each province" In Dolphin Delivery the SCC concluded that the Charter does not apply directly to private actors.
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Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd [1986] SCC – page 781
Facts: The striking employees of Purolator protest at the headquarters of a third party that provides services to their employer. The third party says that the union is barred from protesting at their headquarters by the common law tort of inducing breach of contract. The union argues that this common law rule should be struck down because it violates their right to freedom of expression. Issue: To what extent does the Charter apply to the common law and private parties? Decision: The Charter only affects the activities of government. “Government” is limited to the legislature, executive, and administrative boards -- NOT the court (common law). When an action involves a government party, whether it is a public or private action, the Charter may be applicable to the common law. However, in the event of a private action involving private parties, the common law will NOT be subject to Charter provisions. Ratio: The common law rules governing the relations between individuals and groups lie outside the reach of the Charter. The Charter applies to governmental action or state action, but not to the common law, unless a governmental party is seeking to rely on that common law.
II. Governmental Action – page 786 A. Governmental Actors
If an entity is part of the government, then the Charter will ordinarily apply to all of its actions. The reference to Parliament and provincial legislatures in s. 32 of the Charter means that when laws are passed by those bodies, they must comply with the Charter. In Dolphin the court held that the term ‘government’ did not include the judiciary. This ruling has been called into question. The case law makes clear that not all entities which have powers conferred on them by statute, or are controlled to some degree by government or receive public funding will qualify as government for the purposes of s. 32.
1. Entities Controlled by Government
McKinney v. University of Guelph [1990] SCC – page 787
Facts: Eight faculty members and a librarian challenged the mandatory retirement policies of four Ontario universities. They argued that the universities’ policies violated the equality guarantees found in s. 15 of the Charter by discriminating in the basis of age. Involves mandatory retirement policies (at 65 profs and staff had to retire) Issue: Is the Charter applicable to the actions/policies of universities – i.e. are universities properly characterized as ‘government actors’ under s. 32 of the Charter?
Constitutional Law of Canada Decision: Court held that university was NOT a government actor. Analysis: LaForest talks about a two-stage test; Haigh calls it “an embellishment upon what they did in Dolphin delivery”.
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1) Is the act one of government? (For the purpose of s. 32) 2) Even if the act is not itself one of government, is the particular act in question ascribable to government? (Look at the nature of the activity rather than the entity performing it). While Universities are created by statute, subsist on government funding, and serve a public function, there remains a great deal of independence between universities and government. Government do not have a hand in making University policies. The government cannot determine who the university hires as faculty, who they admit, and most of the individuals who sit on the boards of universities are not appointed by the government. Since there is a great deal of autonomy between universities and government, universities are not government bodies. Ratio: Just because an organization is created by statute, relies on government funding for its survival, and serves a public purpose does not render them a government body. The government must have some type of direct control in shaping the organization’s policies for it to be considered a government body. Note: Court held that universities were not subject to the charter, but COLLEGES ARE. They are managed by a board appointed by the government, and they are not statutory creatures. Ministers of Education generally must approve college bylaws. According to the SCC, those two things create enough of a connection between government and colleges to render colleges subject Charter regulation. 2. Entities Exercising Governmental Functions Even if an entity is not part of apparatus of gov't because it is not subject to routine or regular ministerial control, it may nevertheless qualify as gov't for purposes of s.32 Charter if it is exercising governmental functions.
Godbout v. Longueuil [1997] SCC – page 795
Facts: Municipality enacted law stipulating that only those who live in municipality can work for the municipality. An employee moved out of the area and was fired. He challenged termination on grounds that the legislation violated mobility rights under the Charter. Municipality argued that it was not subject to Charter provisions. Issue: Are municipalities subject to Charter regulation? Holding: Majority held municipalities are subject to Quebec Charter and that it was unnecessary to address the Canadian Charter. Only La Forest (concurring minority
Constitutional Law of Canada opinion) addressed Canadian Charter argument. La Forest held that municipalities are subject to Charter regulation, specifically s.7.
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Ratio: Even in the absence of significant government control over a body, that body may still be bound by the Charter if it functions in a manner similar to that of government. Key factors in this assessment: whether body’s powers are derived from government and if they have law making power similar to that of a government. (i.e. general taxing powers, elected by public etc). This decision is pragmatically important because Federal and provincial governments could easily avoid Charter obligations by conferring their powers to other entities and having those entities carry out government activities or policies in order to evade Charter scrutiny. Class Comments: What about courts? Following the reason of the court in Godbout, shouldn’t courts (common law) be subject to the Charter? Tenuous distinction between governmental functions bestowed on municipalities by provinces, and those ascribed to courts by Parliament. An actor is governmental, and therefore subject to the Charter in all of its activities, if: 1) It is controlled by government: McKinney 1990 SCC (787) Control test -“ultimate or extraordinary control” of an entity by government does not qualify -even though government appointed 14 of 16 members of hospital board, it was held not to be controlled by government in Stoffman 1990 SCC (792) must be “routine or regular” control -board of community college was found to be government in Douglas College 1990 SCC (792) because “the government may at all times by law direct its operation” -Douglas College had no internal autonomy, unlike the universities in McKinney and the B.C. hospital boards in Stoffman 2) It exercises governmental functions: Godbout 1997 SCC (795)
B. Governmental Acts
1. Entities Implementing Government Programs
Eldridge v. British Columbia (AG) [1997] SCC – page 799
Decision: The court ruled that hospitals have to deliver medical services in a way that conforms to the Charter. The failure to provide sign language interpreters constitutes a violation of s. 15 of the Charter.
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Ratio: Entities will be subject to the Charter not only if they are characterized as ‘government’, but ALSO if they perform an act properly characterized as a government activity. This analysis involves looking not at the organization itself, but at the specific act which the organization performs. If the act is found to be an act of government, the organization is subject to the Charter with regards to that act 2. Entities Exercising Statutory Powers of Compulsion In addition to government actors and non-governmental actors implementing specific government programs, the Charter also applies to non-governmental actors exercising coercive statutory powers. For example, in Slaight Communications Inc. v. Davidson the Charter was held to apply to the order of an adjudicator acting pursuant to the Canada Labour Code because the adjudicator was exercising powers conferred by the legislation.
III. Government Inaction
S32 provides that the Charter applies to all matters within the authority of the federal and provincial governments. If a Charter right or freedom requires the fulfillment of a positive obligation, the Charter will apply to inaction on the part of the government with jurisdiction to meet that obligation Vriend - contains discussion of the inaction issue in the context of equality rights
Vriend v. Alberta [1998] SCC – page 805
(Government Inaction) Facts: omission of sexual orientation from Alberta’s Individual’s Rights Protection Act (IRPA); not included as prohibited ground. Vriend attempted to file complaint under act when dismissed from job due to sexual orientation. He brought a declaration for infringing a Charter right. Issue: Does the government have an affirmative duty under the Charter to take steps to combat inequalities? In the alternative, does the government have a duty under the Charter to ensure that the laws they enact are not under-inclusive? Decision: The SCC found that the omission violated Vriend’s equality rights and held that the words “sexual orientation” should be read into the relevant provisions of the Act. Analysis: The Alberta Human Rights Legislation is unconstitutional because it does not include sexual orientation as a ground for protection. Under-inclusive legislation may be found to violate the Charter. However, the court did not discuss whether government could be subject to Charter challenge for failing to act at all with regards to section 15.
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Ratio: If Legislation violates the Charter because it is under-inclusive, it is subject to review. However, there is no ruling on whether a charter challenge under s. 15 can be launched because government failed to act at all.
IV. Application of the Charter to Courts and the Common Law
A. Reliance by Government on Common Law Charter will apply to common law when relied upon in litigation involving a government party, or in proceedings initiated for public purpose In BCGEU v. British Columbia the chief Justice issued an injunction against government employees that were picketing outside a courthouse. Dickson concluded that the Charter applied to the Chief Justice’s order, yet the injunction did not violate the Charter. where common law rule relied upon by Crown in criminal proceedings, the Charter applies as state prosecution provides requisite element of governmental action In both Swain and Dagenais the court did not hesitate to reformulate the common law rules at issue in order to bring them into conformity with the Charter.
B. Reliance on Common Law in Private Litigation SCC’s most lengthy discussion on the relevance of Charter values to the development of the common law in private litigation is found in the Hill case.
Hill v. Church of Scientology [1995] SCC – page 811
Facts: Hill is a prosecutor in Toronto suing the Church of Scientology as a private individual. Hill brought a common law libel action based on allegedly false statements the church made about him. Issue: Is the Charter applicable to a private action based on a common law tort? Is the common law tort of defamation inconsistent with the Charter (s. 2b)? Decision: Even though private parties owe each other no constitutional duties and cannot found a cause of action upon a Charter right, the Court concluded that the common law tort of defamation reflected an appropriate balance between freedom of expression values and the legislative objectives underlying the law. As such, there was no need to amend or alter the legislation. Analysis: Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right. The party challenging the common law cannot allege that the common law violates a Charter right because, quite simply, Charter rights
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do not extend in the absence of state action. The most that the litigant can do is argue that the common law is inconsistent with Charter values. “The party who is alleging that the common law is inconsistent with the Charter 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.” It is up to the party challenging the common law to bear the burden of proving not only that the common law is inconsistent with the Charter values but also that its provisions cannot be justified. Ratio: Even though the Charter doesn’t apply directly to this action, Common law should be interpreted with reference to Charter values (as per obiter in Dolphin). If common law is inconsistent with Charter values, and not justifiable, the common law should be modified.
Remedies
Charter remedies are granted via s.24 of the Charter and s.52 of the Constitution Act S.52 Declarations of legislative invalidity; s.52 remedies are only available where laws (including delegated legislation) are being challenged S.24 individualized remedies including exclusion of evidence, declarations that the rights of an individual or group have been infringed, damages, and injunctions (both prohibitory and mandatory), and any other remedy as the court considers just and appropriate in the circumstances; s.24 remedies are available in cases where the Charter infringement is the result of the actions of public officials, including the police, who are operating outside the constitutional scope of their authority. Remedies under Section 52(1) of the Charter a law may be declared invalid in its entirety partial invalidity via severance, reading down and constitutional exception o severance - reading down bad provisions and keeping the good ones only if the court believes the legislature would have passed the good provisions without the bad reading in (for under-inclusive legislation) a temporary suspension of a declaration of invalidity – allows Parliament or provincial legislature to “fill the void” (problematic since it allows unconstitutional legislation to temporarily persist)
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Schachter v. Canada [1992] SCC – page 1267
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(Important for the discussion of the s. 52 remedies of reading in, severing and temporary suspension of a declaration of invalidity in the case of under-inclusive legislation) In choosing a remedy a court must define the extent of the inconsistency which must be struck down. Courts determine this by looking at the manner in which the law violates the Charter and the manner in which it fails an s.1 analysis: if the law fails the pressing and substantial objective or the rational connection branches, then the inconsistent portion must be struck very broadly/the whole portion that fails the rational connection test. If the law fails the minimal impairment and/or risk/benefit branches, then there is more flexibility: pick striking down, severing or reading in. How do we know which to pick? Read in if there is sufficient certainty on the basis of constitutional analysis what should be read in. Otherwise (in case of any uncertainty), it is the function of the legislature to fill the gaps and not of the courts. (Hunter is an example where there was insufficient certainty as to how to fill the gap and so the court did not read in). Read in if the remedy does not have such a substantial impact on budgetary policy as to change the nature of the legislative scheme: is the group added much larger than the group originally benefited? In Knodel, the group added was much smaller, so reading in was found to be appropriate. Also, if the benefit which is being conferred is itself constitutionally guaranteed (i.e. the right to vote), reading in may be mandatory: for a court to deprive persons of a constitutionally guaranteed right by striking down under-inclusive legislation would be absurd. Sever if the remaining portion is very significant, or of a long standing nature: would it have been enacted without the bad portion? If the Constitution specifically encourages that sort of provision, the significance of the remaining portion is higher, strengthening the assumption that the legislature would have enacted it on its own. (Re Blainey and Ontario Hockey Association is an example where severing was appropriate since it had the effect of extending sex discrimination protection.) Should a declaration of invalidity be temporarily suspended? Yes if there would be negative effects on the public (Reference re Manitoba Language Rights). A temporary suspension of the declaration of invalidity is not an appropriate way for the court to avoid “intruding” on the role of the legislature since the suspension has the effect of allowing unconstitutional legislation to stand: if reading in is appropriate, then read in, don’t just suspend the declaration of invalidity to avoid friction.
Vriend v. Alberta [1998] SCC – page 1277
-An application of the method/factors in Schachter which resulted in the court reading in “sexual orientation” as a prohibited ground of discrimination in the work place via “Individual’s Rights Protection Act” IRPA. The factors are remedial precision; budgetary implications; interference with legislative objective; degree of change in the legislative scheme; importance of the legislative scheme.
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M. v. H. [1999] SCC – page 1284
Facts: exclusion of same-sex couples from the definition of “spouse” under Ontario’s Family Law Act (FLA) for spousal support was found to be an unjustifiable infringement of s.15 of the Charter Issue: What is the appropriate remedy? Decision: The court struck down the offending provision (s.29) subject to a six-month delayed declaration of invalidity. Analysis: Instead of reading in same-sex couples, the court distinguished Vriend. Here, reading in in s.29 would have had significant repercussions for a separate and distinct scheme under the FLA. Therefore, it is not safe for the court to assume that this is the path that the legislation would have taken. Striking down the entire FLA would be excessive: since the offending provisions are not so inextricably bound up with the non-offending that they cannot independently survive, it is safe to assume that the legislature would have passed the sound parts without the unsound parts. Therefore, severing s.29 of the FLA (declared of no force and effect) temporarily suspended for six months: the suspension is necessary to give the legislature time to devise its own approach to solve the unconstitutionality of the FLA and of other Acts which use similar offending definitions of “spouse”. The legislature is better suited to address these issues form both a financial and a democratic point of view.
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Note on Constitutional Exemptions When a constitutional exemption is granted, the law remains in force, but it is declared inapplicable to individuals or groups whose Charter rights are infringed by its effects. Remedies under Section 24(1) of the Charter Note on Structural Injunctions Structural Injunctions (aka civil rights injunctions) are complex supervisory orders. Mostly a US structural remedy which is controversial in Canada and which has been requested mainly in the context of minority language rights (s.23 of Charter). This is a problematic remedy since it gives courts legislative and administrative powers (in the US
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such functions included redrawing electoral boundaries, desegregating school systems by redrawing school boundaries and ordering the bussing of children etc). Note on Damages Damages are a possible remedy for Charter violations, but such claims are a rarity and only very few have been successful. Generally, where a statutory provision has been struck down pursuant to s.52, a claim for damages under s.24(1) is not ordinarily available (Schachter). Standing Who can claim remedies for Charter violations? Anyone whose Charter rights have been directly violated has standing to raise the Charter issue and seek a remedy under either s.24 or s.52(1). Also, a corporation can also challenge the constitutionality of a law under which it was charged even if it is incapable of enjoying the particular right or freedom (Big M Drug Mart). In such cases, a declaration of invalidity sought under s.52 has more generous standing requirements than relief under s.24(1). However, a corporation which cannot claim an infringement of its own Charter right is not allowed to bring independent civil actions seeking declarations of a law’s invalidity, despite the fact that they are subject to regulation under the law in issue and to possible criminal or penal sanctions should they violate it. Public standing may be granted according to the factors in Canadian Council of Churches: the action must raise a serious legal issue, the Plaintiff must have a genuine interest in the issue (not just a busy body) and there must be no other reasonable and effective manner in which the question may be brought to court.
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Freedom of Expression s.2(b) – p. 893
protects freedom of thought, belief, opinion and expression, and freedom of the press protection afforded by s.2(b) is content-neutral; all communicative activity is protected provided it is not violent the “real debate” in most s.2(b) challenges to laws takes place in the s.1 proportionality analysis (see cb898-9) in Dolphin Delivery said violent threats are not protected but since then have reversed that to say that it is protected under s.2(b)
Purposes of s.2(b) - democracy (political expression) – political debate needed - truth (expression about ideas) – pursuit of truth an knowledge as much as possible - self-realization (artistic expression)
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Ryder says they don’t get far b/c so broad, but the purpose affects the s.1 analysis
Means of Restricting Expression - criminal offences (e.g. libel, sedition, treason, hate propaganda, obscenity, child pornography) - prior restraint or administrative censorship (e.g. Ontario film review board, Customs’ prohibitions of imported publications) - regulatory offences (e.g., re professional advertising, election advertising, bilingual labelling etc.) - court and tribunal rulings in civil actions (e.g., damages for defamation, injunctions against picketing) - policies or rules restricting expression on public property or in public media (e.g., restrictions on access to government property) - licensing of broadcasters - time, place and manner laws (e.g. noise by-laws; licensing of or other restrictions on parades, demonstrations or pickets) - compelled expression (e.g. consumer labelling requirements) Establishing a Violation of s.2(b) S. 2(b) Analysis – breakdown from Irwin Toy 1989 SCC at 908 1. does the activity at issue convey a meaning in a non-violent form? if so, 2. is the purpose or effect of the impugned government action to control expression by reference to its content? if so, violation established; S. 1 Analysis 1. pressing and substantial 2. proportionality a. rational connection b. minimal impairment c. proportionality the Oakes test is applied “flexibly” (unpredictably?) in s.2(b) cases s.2(b) provides content-neutral protection to all non-violent expression s.1 “contextual analysis” is content-specific, meaning that not all expression is equally worthy of constitutional protection some restrictions on expression require finding evidence of harm, others restrictions on the basis of common sense, reason or logic section 1: contextual analysis Oakes test that accounts for contextual factors, it considers: 1. whether the expression at issue is closely related to the purposes of s.2(b) (“core” or “peripheral” expression?); - 3 purposes (truth, democracy or self realization) – if it can fit under these types of expression then there is much more consideration for its protection
Constitutional Law of Canada - if not in these 3 then peripheral therefore should require less of the gov’t in defending restrictions – such as with pornography, defamation and commercial advertising 2. the socioeconomic position of those negatively and positively affected by the law; whether the group “protected” by a law is truly “vulnerable” to manipulation, discrimination or violence ex children in Irwin Toy
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3. if the group is vulnerable then there is a much more deference to the gov’t protecting the group ex. Thompson Newspapers– the restriction of polling data a few days before an election cannot be restricted, will not have such a negative affect on cdn voters – the law is overly paternalistic ex. Pepsi-cola – restriction on leafleting is allowable 4. whether the restricted form or content of expression is particularly important to a vulnerable or disadvantaged group (e.g. postering: Ramsden; consumer leafleting: KMart; sexual expression: Little Sisters; but see Banks Ont CA 2007)
Dolphin Delivery SCC 1986 – page 901
Issue: does picketing convey a meaning? Decision: found that picketing was a form of expression, this is clear, but argument was that it is not a real conversation between the picketers and others - saying that it is not expression but signaling, as soon as people see the picket they won’t go to the biz – but this argument was dismissed by the courts Ratio: with Dolphin Delivery did not see connection between co’s therefore 3rd party picketing not allowed, therefore not saved under s. 1 Notes p. 903 Kmart – distinguished between leafleting and picketing and a communication in labour disputes, SCC found that a ban on secondary leafleting was not saved under s. 1 Pepsi-Cola – reinterpreted common law values regarding picketing in light of Charter values, found that secondary picketing was allowed if it was not tortious Commercial Expression - protected by s.2(b) because it conveys a meaning, and on the theory that it contributes to consumer autonomy and to the self-realization of buyers and sellers: Ford SCC 1988 (906-7); Irwin Toy SCC 1989 (907) - consumer autonomy requires extensive regulation of, for example, misleading or manipulative advertising practices (these must be upheld under s.1) - early on it was a question if it would be protected – now not a problem to included b/c of broad definition
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Ford SCC 1998 - page 906
Facts: challenging law banning French from signs arguing that the use of English on a sign was part of freedom of expression, and commercial expression is also guaranteed - the court agreed that both should be protected Decision: it is the right of the consumer that is protected when protecting commercial expression, as well as the right to businesses - powerful actors can abuse freedom of expression, that it is not devoted to truth, knowledge and realization therefore commercial expression is not a core value, it is further to the margins, therefore it can be more easily restricted
Irwin Toy 1989 SCC – page 907
Facts: challenge to provisions of Quebec’s Consumer Protection Act prohibiting advertising “directed at persons under 13 years of age” Decision: statute violates s. 2(b) but is saved under s. 1 Majority: conveyed a meaning under s. 2(b), s. 1 analysis considered the complete prohibition of advertising to children under 13 s. 2(b) – met purpose and effect test upheld restriction b/c of the sociological evidence that children cannot discern what is real, trying to prevent harm through manipulative advertising – did not matter that the info was for younger children then the ban was for -was enough to rely on common sense for the ban s. 1 Analysis 1. pressing and substantial – found on a balance of probabilities that children up to 13 are manipulated by commercial advertising 2. proportional - analyzed rational connection, minimal impairment and proportionality together and found that all requirements were met because of evidence of effects therefore complete ban not out of proportion Minority: felt parliament should have conclusive evidence for the age group that the ban is operating for RJR-MacDonald SCC 1995 (920) Facts: challenge to provisions of the federal Tobacco Products Control Act restricting marketing of tobacco products Decision: 5-4 majority strikes down most of the offences in the Act, including complete ban on tobacco advertising, and requirement of including health warnings on packages
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Majority: S. 2(b): government concede a violation S. 1 Analysis 1. pressing and substantial – yes, because criminal matter, related to social evil 2. proportionality a. rational connection - problem for maj was that gov’t had research that they used in making the decision but did not disclose the studies to the court, the suspicion is that the evidence they had did not support the leg - need to have some evidence of link between health and advertising - SCC said complete prohibition could not be sustained, need to considered why there is a complete prohibition (if there is evidence then may allow) otherwise need to be more specific b. minimal impairment - majority found complete ban on advertising failed the least restrictive means test - government had presented no evidence to demonstrate need for a complete ban, as opposed to a partial ban that permitted information and brand preference advertising - unattributed mandatory health warnings also failed the minimum impairment test: they would be clearly justifiable reasonable limits on freedom of expression so long as they could be attributed to government (934-5) c. proportionality - found complete ban on advertising failed the proportionality test - government had presented no evidence to demonstrate need for a complete ban, as opposed to a partial ban that permitted information and brand preference advertising (per McLachlin 933; Iacobucci 935-6) - unattributed mandatory health warnings also failed the minimum impairment test: they would be clearly justifiable reasonable limits on freedom of expression so long as they could be attributed to government (934-5) Minority: found that the s. 1 test was met in all areas - money spent on advertising is enough to indicate a link between advertising and smoking - found that complete ban and unattributed warnings were proportional Note: new Tobacco Act responds to these concerns of the majority; will likely be upheld under s.1
R. v. Banks Ont CA 2007
validity of provisions of Safe Streets Act and Highway Traffic Act that prohibit soliciting on roads
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s. 2 (b) Analysis: targets non-violent activity that conveys a meaning by reference to its content, therefore violates s.2(b) s. 1 Analysis: - issues of morality and order on roads, prevents aggressive panhandling and squeegee kids - have to make sure that there is a link between the ban and the concern for safety - look at exception of Morgentaler where the health rationale was minimal - Westendorph was not for safety from prostitute on the streets but is singling out prostitution with a heavy penalty – clear that they are punishing on moral grounds - argument in Banks says that it is for safe streets but singles out squeegee kids for moral sanctions and not about safe streets - the leg debate at the time made it clear that they were cracking down on squeegee kids - Ont. Court of Appeal said that weight must be given to leg weight but the pith and substance is safety - Bruce Ryder – if this went to SCC it may reverse based on the moral grounding of the leg, that the pith and substance is not based on safety - is soliciting political or commercial expression, or does it fall in some other category? is a searching or deferential standard of review appropriate? - problems with leg – a complete ban on roadway HATE SPEECH -A lot of goals for protecting people who may be the subject of hate propaganda -Used to be a false news provision of the crim code in Zundel, but that section was struck down as unconstitutional -There are also some provisions for hate propaganda in human rights legislation, like Canadian Human Rights Act – a federal statute so, can only deal with media that falls within federal jurisdiction – like broadcasting, telecommunications, internet, etc…. -When it comes to hate speech, analysis should NOT be limited to the Criminal Code, human rights legislation also applies -When speech, in its effects, interferes with equality rights, equality rights prevail
R. v. Keegstra 1990 SCC – page 941
Dickson CJC: Facts: -Convicted for hate speech for spreading Jew hate at his high school -Argued that s. 319(2) of Crim Code violated his right to free expression under s. 2(b) of Charter -Won appeal at CA and Crown appealed to SCC
Constitutional Law of Canada Issue: -Can s. 319(2) be upheld as a reasonable limit on freedom of expression?
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-The issue divided the SCC 4-3 in this case – the majority voted to uphold the provision -There was no real debate as to whether it violate s. 2(b), the real debate was whether is violated s. 1 Analysis: -Have to first ask whether the provision is valid in pith and substance – in this case its obvious that it’s valid under fed. gov’s criminal law power -This provision makes it an offence to communicate statements that willfully promote hatred against an identifiable group -As opposed to a human rights legislation, this provision of the Crim Code does not just apply to federal statements made through broadcasting and such, this provision applies to all communication, except for private conversation -It has to be willful – intentionally promoting hatred – but HATRED was not defined, so a question was whether that word was too broad to constitute a violation of freedom of expression – like color, race, religion, origin or sexual orientation (gender is not included) -Debated as to whether Parliament intended to pass the law to restrict expression in respect to its content or whether it was aimed at restricting freedom of expression for truth, democracy, and self-realization -Claimant only had to show that the expression promoted truth, democracy, and selfrealization – Parliament does not have to show that the purpose was to restrict freedom of expression, but rather it’s just an effect of passing the law – this establishes that it’s a violation of s. 2(b) (very easy to establish this) s. 1 Analysis Proportionality Test (i) Pressing and Substantial -Held that s. 319(2) does provide a intelligible basis for valid legal debate – this is a requirement that was met -Next has to ask what was the objective of the statute and whether it is pressing and substantial and not too vague -The objective was to prevent the harms caused by the expressive activity at issue, so have to determine the harms of the hate propaganda first Dickson J – MAJORITY Saw 2 types of harm: 1. The harm to the group that is targeted – psychological consequences
Constitutional Law of Canada 2. Influence on society at large – this is a pressing and substantial concern -Chief justice said BOTH these reasons were pressing and substantial
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-It is clear that the expression prohibited by s. 319(2) is not closely linked to the rationale underlying s. 2(b) – promotion of free ideas in a free and democratic society -We can reject hate propaganda and show dislike for hate-mongers while still protecting the values central to freedom of expression (ii) Rational Connection -This is the first branch of the proportionality test and it has been met -Hate propaganda laws are part of a democratic society’s efforts to prevent the spread of racism – there is a rational connection in this context (iii) Minimal Impairment of The s. 2(b) Freedom -s. 319(2) minimally impairs freedoms because only the most extreme forms of hateful expression fall under it -It doesn’t prohibit people from speaking hate in private conversation – it just prohibits them from speaking them publicly c. Alternative modes of furthering Parliament’s objective -Even though presumption of innocence is infringed, it cannot be saved by s. 1 (iv) Cost-Benefit Analysis -But the big question was whether a criminal sanction was the best and least intrusive means of dealing with this issue, and do the positive effects of the prohibition outweigh the negative effects on the infringement of free speech -Dickson said yes -There are many defences to the provision – thus it does not restrict freedom of expression to an unreasonable degree McLachlin J Dissent: Rational Connection -No evidence of a rational connection between s. 319(2) and the goals it promotes -History has shown (e.g. Nazi Germany had anti-hate laws) that there is little reason to believe that hate propaganda laws contribute to the cause of multiculturalism and equality Minimum Impairment
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-s. 319(2) is a broad prohibition that is a big threat to freedom of expression that cannot be saved by s. 1 the offence can be counter-productive – gives a platform to racists to propound their views – gives people like Keegstra a martyr-like status and media attention that they would not otherwise get – so it would be better to ignore them from a criminal law point of view and combat their ideas through things like education -Thus it will not work to control hate propaganda and curb the effects of it -Her main concern was that the legislation will have a “chilling effect” on political speech – people will be too afraid to speak their minds without being charged criminally REGULATION OF SEXUALLY EXPLICIT EXPRESSION -These things have usually been regulated on the grounds that they are offensive and immoral
R. v. Butler [1992] SCC – page 968
Facts: -Accused charged under s. 163 of the Criminal Code for selling hardcore porn in his shop -Brought up another freedom of expression argument under s. 2(b) Issue and Decision: -Can gov. uphold this provision under s. 1 – SCC said a unanimous yes to this question Analysis: MAJORITY – Sopkinka: -For the material to be “obscene” is has to depict an “undue” exploitation of sex, this is determined through the “community standard of tolerance test” – measure the obscenity against “community standards” -Obscentiy labeled as the undue exploitation of sex – depends on what the community would tolerate – court said this approach is too subjective, have to shift to a harm-based approach -- a high degree of harm, cannot be trivial or speculative, has to do with the degree of evidence, can use reason, logic and common sense – this gives the wrongful conception that the obscenity provision is very broad and easy to enforce – this is not true, the burden on the crown is VERY high -What plays a bigger role in determining obscenity is bodies like the CRTC and the Ontario Film Review Board to determine whether material is obscene pursuant to s. 163 of Criminal Code -The Charter challenge in this case did not succeed in getting the provision shut down, but it did get it re-conceptualized -The Charter challenge in this case did not succeed in getting the provision shut down, but it did get it reconceptualized -Sopinka stated categories of obscenity:
Constitutional Law of Canada 1. Material that uses children in its production 2. Depictions of sexual violence 3. Material that is degrading and dehumanizing and poses a substantial risk of harm to society – this is the most difficult category -Sopinka thus redefined obscenity Does s. 163 violate s. 2(b) of the Charter -It does violate freedom of expression under s. 2(b) -There was nothing physical in the materials, and under s. 2(b), thoughts and feelings should be able to be conveyed freely in non-violent ways -Thus there was a s. 2(b) violation -Held that this does provide a sufficiently intelligible basis for legal debate -Then asked whether it is pressing and substantial Is s. 163 Justified Under s. 1 of the Charter?
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-s. 163 is not overly-vague, it provides an intelligible standard as a limit prescribed by law -The pornography industry’s growth makes the concern more pressing and substantial -The objective of avoiding the harm associated with the dissemination of pornography in this case is sufficiently pressing and substantial to warrant some restriction on full exercise of the right to freedom of expression -Pressing concern is to protect women and children in society – the rationale is that men who are routinely exposed to these images will be prone to treat women the wrong way – this is the objective that the court is aimed at preventing -Problem is the objective has to be the objective at the time the statute was enacted, NOT about the effects that it could have -Either way, the harm prevented by curbing obscenity meet the pressing and substantial connection test Proportionality -The Rational Connection exists – show community’s disapproval of obscenity and the sexually explicit materials -Prescribing violent material that poses a risk to society is rationally connected to the goal of preventing harm -There is also minimal impairment to rights because s. 163 is very specific -There is also a defence for artistic expression, but it’s not written into the Criminal Code -Also, private expression of these things is not prohibited, only prohibited when it’s in a more public nature and poses a threat to society
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Little Sisters Book and Art Emporium v. Canada – page 981
Facts: -Little Sisters – lesbian bookstore in Vancouver has had a war with Canada customs for over two decades now -Challenged s. 14 of Customs Tariff, which forbids bringing obscene material into Canada Decision: -SCC held that it restricted freedom of expression, but could be justified by s. 1 -But also held that the manner in which the legislation had been implemented by Customs officials violated the bookstore’s rights and could not be justified under s. 1 -It was up to the customs officials to determine whether the materials were obscene or not -This is a form of prior restraint censorship – the way that the standard is enforced is so different from something like a criminal trial, where evidence is presented and weighed -Held that customs officials exercised their authority in a way that violated bookstore’s s. 2(b) rights because it suffered unnecessary prejudice because of delays, costs, etc…. -The violation was not in the legislation, but in its effects -Also argued that it singled out lesbians and discriminated against them and the Vancouver “queer community” as a whole -The bookstore went further and tried to get the legislation struck entirely -Binnie J held that the legislation itself did not sufficiently violate the Charter to the point where it should be struck down – the problem was how it was enforced -- – customs officers were improperly trained in carrying out obscenity laws – argued that this can be fixed without having to strike down the legislation and leave it to customs administration to clean up its act -The majority’s ruling was a declaration – not a hard ruling, depends on the goodwill of the other branches of government complying with it -In DISSENT, Iacabouchi said this is not enough – it should go back to Parliament to explain the meaning of censorship and impose clear guidelines -It’s not acceptable to treat a constitutional right the exact same way as you treat other prohibited material – safeguards have to be put in place to ensure that constitutional freedoms are protected -Bruce Ryder thinks the majority decision was a fatal mistake -He does not think that a declaration is sufficient, what is needed is rather systemic change – “appalling approach to censorship” -The system is not built in with enough safeguards, if we value freedom of expression as much as we claim to -Little Sisters has been arguing for the past few years that the changes imposed are not enough
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-Later, the SCC agreed with BC CA and held that the case was not important enough for a remedy of advanced costs -So not a very happy ending Child Pornography -This is an offence under s. 163.1 of the criminal code -Child pornography – crim. prohibition on expression to stop people from suffering harm -Stronger than prohibition in the obscenity provision – already made it a crime to purchase, sell, distribute child porn in this country -In 1993, fed. gov. expanded the Criminal Code to make possession of child porn a crime (before, it was just illegal to produce, sell and distribute it) -Argued that if we want to shut down child pornography, we have to shut down the supply and demand of the industry and this means including a simple possession offence -Parliament was persuaded by this argument -Another rationale to restrict written material too – all imaginary representations, because people who viewed them were argued to be predisposed to commit violent acts against children -An argument that all this criminalization was over-reaching -The issue was what the imaginary depictions actually raised – civil liberties issues for protecting stories that someone wrote themselves -Sharpe case was the most extensive application of the reading-in provision
R. v. Sharpe – page 986
-The law was challenged and McLachlin J held that it violated s. 2(b), but it was saved by s. 1 because the purpose of protecting children was pressing and substantial and there was a rational connection to this -So 163.1 was upheld as a reasonable limit on free speech -But the chief justice decided to “read in” a few exceptions to the law – such as a single item for someone’s own personal use and audio recordings, as long as they are not too sexually explicit -Sharpe was acquitted with respect to his stories – held that they did not counsel or advocate violence against children -Now things have changed, advocating is not necessary, it’s a crime if the material describes explicit acts against children -The issues of constitutional validity for s. 163.1 are not over, Parliament has amended it many times and continues to do so, in order to show Canada’s extreme condemnation of child pornography NOTE: Bruce Ryder thinks 163.1 is not constitutionally valid and there is no good legal rationale for it at presentment – the imaginary representations are not a big social issue
Constitutional Law of Canada -This prohibition is vulnerable to being struck down, because there is no artistic merit defense available – artists cannot depict any child sexuality and defend it as art Controls on Election Spending
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Libman 1997 SCC – page 990
Facts: struck down provisions of the Quebec Referendum Act that banned third party spending during a referendum campaign s. 1 Analysis: 1. pressing and substantial: found that promoting fairness in access for elections met this requirement 2. proportional a. rational connection - 1991 Election Royal Commission found the need to limit spending of both direct and third party spending, therefore rational connection – “highly laudable” objective b. minimal impairment - but for 3rd parties, there was a complete prohibition for the Referendum – found this to be overly restrictive - said that a complete ban was not a reasonable limit, suggested a $1,000 limit c. proportionality - not considered b/c failed at minimal impairment Harper 2004 SCC - validity of third party campaign spending limits in s.350 of the Canada Elections Act (note 2, 1000): upheld 6-3 - Harper 2004 SCC Harper challenged before he was a public official, said that regulation should be struck down b/c it was too low - was a violation of s. 2(b), but under s. 1 it can be upheld – the objective is highly laudable (like Libman), and was a minimal impairment (in Libman the prohibition was too great of an impairment) - dissent – essentially agreed with the majority, but said that the limits in spending were to low when looking at the cost of advertising with major broadcasters and newspapers Note on Publication Bans
Thomson Newspapers 1998 SCC (note 4, page 1001)
s.322.1 of the Canada Elections Act prohibited the publication of election campaign polls during the final 3 days of a campaign; declared invalid in 5-3 ruling idea of prohibition was it wouldn’t give people enough time to analyze the validity of data, and polling can have a significant impact on a persons vote
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failed at rational connection: people are capable of making an informed decision therefore ban not required
Bryan 2007 SCC - decision came March 2007
s.329 of Canada Elections Act prohibits the publication of voting results before polls close in other ridings; upheld 5-4 - interesting with respect to how much and what kind of evidence the gov’t needs for a limit on freedom of expression - the goal is to ensure informational balance across the country - don’t want voting results in the east to affect the voting or decision to vote in the west - what makes more difficult is that Lortie Commission on elections in 1991 that said that the ban on publishing election results was outdated Majority – upheld the ban Dissent – (Abella) said that the gov’t claims were speculation, needs to be something more than that for a prohibition - also have staggered voting hours now (recommended by Lortie) so that before the polls close in the west only the Atlantic Prov results will be known (and Atlantic only has 38 ridings of 308) – there is not real affect b/c of this, don’t have the Ont/Que results does not matter -
S. 7 -- LIFE, LIBERTY and SECURITY of the PERSON
section 7 analysis 1) Is there an infringement of life, liberty or security to the person?-yes then step 2; 2) Is the infringement based on a principle of fundamental justice?-yes then step 3; 3) Can the infringement be upheld by a s.1 analysis?-no then remedy; 4) Remedy….
I. Introduction
Section 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.” • Although “everyone” could include natural and legal persons, Courts have held does not apply to corporations. -When there’s a violation, the onus is on the claimant to prove that his life, liberty and SOTP have been violated AND that the violation was not in accordance with the POFJ 1. Procedural Right—individual has the right to a fair trial in Canada etc.;
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2. Substantive Right—individual has the right not to be executed Drafters thought they were importing natural justice doctrine only, but the testimony of Streyer was given ‘minimal weight’ in Motor Vehicle Reference (1985). Court said that if they had only wanted to protect procedure, they could have used a phrase like “due process.” 1. Establishing a Violation of a Life, Liberty or Security of the Person two-step process: 1) claimant must demonstrate an interference, in purpose or effect, with one of the three interests protected in s.7; and 2) the claimant must demonstrate that the interference is not in accordance with the principles of fundamental justice -If the claimant gets past step 2, then the burden shifts to the government and the Oakes test is applied • Life, liberty, and security of the person are 3 distinct interests; violation of any one can give rise to a s.7 claim. • LaForest (p. 661): s.7 contemplates internal balancing process, a balancing of individual and community/public interest rights. If deprivation is in accordance with principles of fundamental justice, s.7 right not been violated. To qualify as a principle of fundamental justice, a principle must: 1) Be a legal principle; 2) Must be a significant social consensus that it is vital to our notion of justice; and 3) Must be capable of being stated with precision and yielding predictable results All of these components must be met This places on claimants of s.7 an onerous burden of proving that it is a principle of fundamental justice—its going to be harder This is the test that a claimant must meet So far recognized principles of fundamental justice: -in addition to the specific rights listed in sections 8 through 14, the pofj include: substantive and procedural rights—s. 7 should not be restricted to procedural rights. -procedural fairness -no punishment of innocent (mens rea requirement) -intelligible standards (no vagueness) -lack of arbitrariness (a rational connection must exist) -least restrictive means (over breadth-has the government selected the least restrictive means?) -proportionality(between the negative and positive effects of the government action) -protection from extreme violations of human dignity (deportation to torture) -protection from self-incrimination
Constitutional Law of Canada -right to a fair trial, including right to make full answer and defence principles of fundamental justice -s.1 requirements is reproduced in s.7 There is a great deal of overlap in the questions to be answered in s.7 and s.1 Oakes analysis
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What principles have been determined NOT to be principle of fundamental justice? -harm principle (Malmo-Levine 2003 SCC)—bestiality, incest. -best interests of the child (Canadian Foundation for Children, Youth and the Law 2004 SCC)—spanking case, removed criminal sanction of assaulting children for behaviour modification -SCC said “best interests of the child” is a legal principle, it doesn’t apply with absolute precision in particular contexts -These two cases illustrate the claimant’s burden of proving a pofj has been infringed.
Reference re Section 94(2) of the Motor Vehicle Act (BC), p.1073
Facts: absolute liability for a driving offence which doesn’t matter First case the SCC dealt with s. 7 Issue: What is the nature and scope of s. 7 Life, Liberty or the SOTP Rule: sections 8 to 14 address specific deprivations of the right to life, liberty and SOTP in breach of the principles of fundamental justice, and as such, violations of s. 7. NOTE: The structure of s.7 authorizes the state to violate the right to life, liberty , or SOTP if it does so in a manner that conforms with a principle of fundamental justice, and that a law that does not comply with fundamental justice may amount to a reasonable limit under s.1 of the Charter. -It thus requires a court to determine, first, the nature and scope of the right to life, liberty, or security of the person; second, the nature and scope of fundamental justice; and third, the applicability of s.1 of the Charter.
II. Section 7 and Bodily Integrity
R. v. Morgentaler p.1077 Facts: Criminal Code makes it an offence to obtain an abortion, then creates limited exceptions (a defence): accredited hospital, therapeutic abortion committee must
Constitutional Law of Canada provide certificate stating pregnancy endangers life or health, abortion must be performed by qualified doctor who is not on T.A.C. Dr. Morgentaler opened free-standing clinic (not accredited, no TAC, no investigation to determine if pregnancy endangers life or health). Issue: does the criminal prohibition and procedural process for abortions violate s.7 of the Charter Decision: 5-2 decision in favor of Morgentaler; three decisions on majority side (Dickson/Lamer, Beetz/Estey and Wilson; Dis-McIntyre/LaForest)
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-Dickson C.J. (and Lamer): Considers whether there is deprivation of “security of person.” -Law interferes with bodily integrity of a woman; forcers her to carry fetus to term unless she meets criteria “unrelated to her own priorities and aspirations” -Violation of “purely physical aspect” of “security of the person.” Also imposes severe psychological stress – law imposes delay and uncertainty, coupled with criminal sanctions. -Therefore, necessary to consider whether the law is consistent with “principles of fundamental justice.” -No need to consider fetal rights in this case, because Parliament itself has determined that fetal rights must yield when life/health of mother in danger (i.e. law itself admits balance tips in favour of mother). -Question is whether procedure is fair. Notes many practical obstacles; many hospitals not accredited, or no Therapeutic Abortion Clinics (TAC). -Therefore, for many women the exception in s. 251 is ‘illusory’; women who would prima facie qualify under section cannot take advantage of it. This violates fundamental justice on procedural grounds. -The POFJ that is violated in this case is PROCEDURAL FAIRNESS -Thus s. 1 analysis comes into play -- Can't be justified under s. 1 b/c means chosen are arbitrary and fail all three elements of Oakes proportionality test. Beetz (and Estey) -Finds breach of security of person in delay occasioned by law. Delay creates additional danger to women’s health – and must be justified. Parliament could be justified in requiring medical opinions as to danger posed by pregnancy but this law goes beyond what is necessary. -Requirement that abortions be performed in hospitals, that there be more then 3 members on TAC, and exclusion of doctors whom perform abortions from TAC unnecessary. -Therefore law violates s. 7 and cannot be justified under s. 1 Wilson • Agrees on right to “security of the person” but goes beyond to rely on the right to “liberty” (Monahan says that her reliance on liberty is a substantive rights argument)
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Liberty includes right to make fundamental personal decisions w/o interference from state. • Underlying theory of Charter is that state will respect choices made by individuals and to greatest extent possible, will avoid subordinating these choices to any one conception of the good life. (p. 681) • Right to terminate pregnancy falls within class of protected decisions. Therefore s. 251 necessarily limits liberty. • That theory of liberty (p. 681) has been endorsed by the majority of SCC in Blencoe (see below). • Wilson J. also finds violation of fundamental justice in a substantive sense. Finds that violations of s. 7 cannot be justified under s. 1 (p. 684). Dissent—McIntyre (and LaForest) • Relies on the fact that legislative debate suggests that right to abortion was not included in s. 7. Remedy: which part or parts of s.251 (now s.287 of the Criminal Code) were declared invalid? The remedy stage is probably the most important stage? Severance wasn’t possible b/c it would make all abortion illegal Here the court’s remedy was to strike down the entire legislation Parliament hasn’t even bothered to amend the criminal code… Ryder likes Wilson’s feistiness here—she had BALLS! Chaoulli v. Quebec (AG) Facts: prohibition of people buying private insurance -The claimants say that the prohibition allows those who can afford treatment to leave the country while those who cannot must be restricted to the government health care system (RICH PEOPLE CAN GET BETTER TREATMENT) Issue: does the public health care system’s failure to deliver timely access to medically necessary services, coupled with legal prohibitions on purchasing private insurance, violate section 7 of the Charter? <THE EFFECT OF THE LAW VIOLATES s. 7> Rule: 4-3 ruling; Deschamps for majority finds violation of s.1 of the Quebec Charter— equivalent to the Ontario Human Rights code (which only prohibits discrimination) -The Quebec Charter goes further than just discrimination -This decision is indeterminate as precedent -The result was that the Quebec legislation is inconsistent with s.1 of the Quebec Charter and therefore the Quebec Charter prevails b/c of a provision that says when there is a conflict b/n a Quebec legislation conflicts with the Quebec Charter, the Quebec Charter prevails -This only sets precedent in Quebec…
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no remedy under the Canadian Charter (since the majority did not find a violation of the Canadian Charter) • violation of life and security of the person prohibition on purchase of private insurance, coupled with lengthy delays in public system causing serious physical and psychological consequences, violates life and security of the person: Deschamps (91); McLachlin and Major (96); Binnie and LeBel (103)
**If the state is going to establish a monopoly on the services of health care, then it must deliver.**
Flora v. Ontario 2007 Ont. SCJ
<THIS CASE DID NOT GET PAST STAGE 1 – S. 7 VIOLATION> -claimant argues that failure of OHIP to fund life-saving liver transplant violates s.7 in Ontario, doctors said the procedure was not suitable for someone at his advanced stage of liver cancer -Flora spent $450K on the procedure in England was denied reimbursement by OHIP; regulation provides right to funding only when treatment is considered appropriate and is unavailable in Ontario -in light of Chaoulli, violation of s.7? -court: no violation of a s.7 interest because the regulation does not restrict patients’ right to secure out-of-country treatment; s.7 creates no positive rights -no active duty to ensure medical services. -S.7 does not pose positive obligations on the state (also from Gosselin) -no state interference with life, liberty or security of the person because the regulation does not restrict patients’ right to purchase out-of-country treatment; s.7 creates no positive rights -in any case, the regulation is not vague, arbitrary or grossly disproportionate to its objectives
Rodriquez v. British Columbia (AG), p.1091
<THIS CASE GETS TO STAGE 2> Facts: -CC s. 241 prohibits assisted suicide -Sue Rodriquez brings challenge on basis of s. 7, security of the person. -Argues that it limits her right to deal w/ her body as she wishes -She was not trying to get s. 241 struck down, she just wanted an exemption Issue: Does the criminal prohibition preventing someone from assisting Rodriguez from choosing when and how she dies infringe upon her s.7 Rights (life, liberty and security of the person)? -SCC unanimously agrees that s. 241 is an infringement of her right to “security of the person.”
Constitutional Law of Canada -Disagreement in case is whether s. 241 is consistent with principles of fundamental justice.
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Rule: Sopinka (majority) thinks it is consistent with principles of fundamental justice. -Relies on Morgentaler reasoning: security of person includes right to make choices concerning one’s own body. -Here the effect of s. 241 is to prevent Rodriguez from making choice about her own bodily integrity -Focuses on distinction btw passive and active forms of assisting/hastening death. Notes that historically, law has distinguished between passive and active forms euthanasia. -Frames issue as one of arbitrariness by asking the following Q: Is the potential arbitrariness consistent with principles of fundamental justice? -Does law further its objective, protection of rights of vulnerable in a non-arbitrary way? Someone could take advantage of the disadvantaged, or act out an earlier made wish after a person had changed their mind. -Argues that there is no consensus that passive/active distinction is arbitrary. Physicians have no choice but to accept a patient’s decision to withhold treatment. “Nothing approaching unanimity with respect to issue before me.” (692-93). Founds his judgment on lack of a societal consensus. [!!!!] <CANNOT ACCEPT THE ARGUMENT THAT ASSISTED SUICIDE SHOULD BE ALLOWED> McLachlin [dissent] (L’Heureux Dube concurring) -Focuses on distinction between suicide and assisted suicide. She agrees that the key question is whether this distinction is arbitrary. Again arbitrary is defined by its Rational Connection to objective behind the legislation. -Turns case into a s.15 case. Argues there is no justification other than floodgates argument. Fear is that disabled persons will be murdered, or pressured to agree to end their lives, and that really this is therefore a s. 1 argument. -Sue Rodriguez is asked to bear the burden of the chance that other people may act criminally in similar situations. She is asked to serve as a scapegoat. (695) It is a utilitarian argument, where Rodriguez is a means to an end, and therefore this should be a s. 1 consideration, NOT a s. 7 analysis. -Also rejects the passive/active distinction—since the end result of death is the same. -Criticizes Sopinka’s consensus argument—Courts are not in position to determine this; Parliament’s job. Courts are supposed to find decisions on principle. NOTE -Case leaves us with an unclear sense of what is meant by principles of fundamental justice, other than arbitrariness concept that requires rationality/fit between purpose and means (s. 1 analysis). -S. 7 protects you not only from actual pain/suffering, but also threat of having actual/pain or suffering inflicted on you (especially if it is absolutely certain).
Constitutional Law of Canada One should not have to wait until one actually experiences/suffers the infringment. See Morgentaler, where Dickson said threat of complications w/ pregnancy was itself s. 7 violation.
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Suresh v. Canada (Minister of Citizenship and Immigration), p.1103
Facts: Former Tamil Tiger claims for refugee status Is denied and scheduled to be deported back to Sri Lanka Files for a new hearing b/c worried about being tortured in Sri Lanka s.53(1)(b) of the former Immigration Act permitted deportation of refugees, even if their life or freedom would be in danger, if they were members of terrorist organizations and the Minister decided they posed a security risk government established that Suresh was a member of the Tamil Tigers; Minister moved to deport him; Suresh sought judicial review, arguing that the Act violated s.7 and that he would be tortured if returned to Sri Lanka Issue: Would deporting him be contrary to the fundamental principles of justice? Should he be able to stay? Rule: -unanimous court holds that deportation to a substantial risk of torture, “barring extraordinary circumstances”, violates the pofj (HUMAN DIGNITY) <THE POFJ BEING VIOLATED WAS PROCEDURAL FAIRNESS> -court says he should have another hearing because it is contrary to Canadian principles of fundamental justice to send him home to torture. -Court said the provision was ok but the implementation of it was a problem. -The principles of fundamental justice include procedural process. -Suresh was denied the opportunity to submit arguments -Oakes line of reasoning that says the governments response is not proportional in the given circumstances. <HE WAS GRANTED ANOTHER HEARING>
Canadian Foundation for Children Youth and the Law, supp. 86
<SPANKING CASE> <THIS CASE MAKES IT TO STAGE 2 – SHOT DOWN FOR NOT BEING A POFJ> Facts: s.43 of the Criminal Code, which justifies the use of reasonable force by parents and teachers for the correction of children Child spanking case Issue: Should child spanking be permitted? Rule: -6-3 ruling upholding the statute
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-7-2 ruling finding no violation of s.7 -Crown conceded that s.43 violates security of the person -McLachlin for majority finds no violation of the pofj; rejects arguments based on: -procedural fairness <CHILDREN CAN CLAIM ASSAULT IF IT HAPPENED> -best interests of the child-not a POFJ -vagueness-to prove this the threshold is so high, clarity is so low—must allow for conclusive legal debate… -overbreadth-no age limit, weapons?, notion of reasonable force… -McLachlin read in a max of 12 years of age, no weapons -There was no debate as to the result of the law, but there was a debate as to the chosen remedy—read down or back to parliament? -ONLY READ IN, IN EXCEPTIONAL CIRCUMSTANCES, MCLACHLIN DID IT HERE ON A WHIM Arbour dissent on s.7 -Deschamps agrees in separate dissent -law is too vague; accuses the majority of “curing vagueness from the top down” by rewriting the law to achieve Charter compliance: “At some point, in an effort to give sufficient precision to provide notice and constrain discretion in enforcement, mere interpretation ends and an entirely new provision is drafted.” (para. 190) -s.1: cannot meet prescribed by law requirement, it is too vague to be prescribed by law (this comes before the Oakes case) -remedy: declaration of invalidity
Life, Liberty and Security of the Person and Human Dignity B.(R.) v. Children’s Aid Society of Metropolitan Toronto, p.1110
Facts: -The appellants' child required a blood transfusion to which they objected on religious grounds. -The Children's Aid Society was granted temporary wardship so that the child could receive the required medical treatment. -The order was then terminated and the child was returned to her parents. The parents argued that provisions of the Child Welfare Act were contrary to sections 7 and 2(a) of the Canadian Charter of Rights and Freedoms. -Parents argue a violation of their liberty interest to make parental choices. Issue: Does the child have rights that trump the liberty rights of the parents? Rule: -Lamer (DISSENT): no threat to physical liberty, parents physical liberty not being threatened, therefore no liberty argument;
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-LaForest (Gonthier, McLachlin—LHD concurred on s. 7 issue): Must first consider whether there has been a s. 7 violation. If so, decide whether it can be justified through principles of fundamental justice -argued that liberty includes rights to make decisions that are fundamental personal importance. Section 7 does apply [Negative liberty argument: freedom from state intervening, as opposed to positive liberty, right to call upon the state to enforce/support a conception of how I want to live]. Relies on Wilson J’s reasoning from Morgentaler – ‘privacy right’ issue. -Decisions about raising children are within this protected sphere (Iacobucci and Major disagree in part, saying that such a liberty can never apply to a decision to deny medically necessary procedure to child). -BUT finds that violation of liberty is in accordance with fundamental justice, b/c procedure was fair—order was made pursuant to procedure in accordance with principles of fundamental justice. -Balancing of child’s and parents’ interests; state has a “parens patriae” interest in protecting rights of child; ultimately, s. 7 analysis has a component of balancing. -Section 7 is violated – intruding on parents’ right to choose, BUT the POFJ was “procedural fairness” – they did have a fair procedure to decide how they want to treat their children, but here it was held that they could not put their child’s life at risk – thus this was not contrary to the POFJ -Iacobucci and Major for 3: liberty does not include parental freedom to make choices that seriously endanger the survival of a child – DID NOT GET PAST STAGE 1
New Brunswick (Minister of Health and Community Services) v. G.(J.)
Facts: parents’ children are taken away for a year CAS tries to extend for another 6 months Parents file for legal aid but are denied due to family law legislation that excludes legal aid from custody matters Issue: do the parents have a Charter argument? Rule: court says that the parents should have equal representation in a matter that is so concerning -Lamer for 6: security of the person implicated; serious interference with psychological integrity; stigmatization, loss of privacy and disruption of family life also amount to a restriction of security of the person – thus s. 7 violated -Principle of fundamental justice: in the circumstances of this case (seriousness, complexity, capacities of claimant), right to a fair hearing required state-funded counsel <POFJ IS PROCEDURAL FAIRNESS AND IT WAS VIOLATED>
Constitutional Law of Canada Not all cases of this nature will give rise to a right to state funded council -It will require a vast array of factors -Where issue is complex -Claimants legal intelligence capacity -This is the leading case on s.7 challenges to the right to state funded legal representation
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Blencoe v. BC, p. 1121
<TEST FOR STRESS AS A S. 7 BREACH> Facts: -Prominent BC cabinet minister, Robin Blencoe, accused of sexual harassment against assistants; they filed complaints w/ BCHRC. -Blencoe dismissed from cabinet, unemployed, had to be put under doctor’s care, moved to Ontario, tried to get work here, could not. -Hearing scheduled 30 months after complaint filed. Blencoe alleges violation of s. 7 rights. Issue: Is the unnecessary delay of the Human Rights Tribunal Hearing that causes, additional stress, an infringement of s.7 with respect to stigma and/or dignity? Rule: -Majority (Bastarache, McL, LHD, Gonthier, Major) affirms broader conception of ‘liberty’ (Wilson in Morgentaler, and LaForest in Re. B and Godbout) as including right to make ‘fundamental personal choices’ – but no violation on facts of this case. -Right to make fundamental choice not infringed by suffering allegations. -On ‘security of person’, affirms that severe psychological stress may involve breach of security of person. However, deprivation must be caused by state action; here delay was not primary cause of stress, the allegations themselves and accompanying media coverage (much of which occurred before delay) was real cause. -Blencoe argues that delay exacerbated his stress, but Court says that psychological stress can only involve breach of security if it involves interference with fundamental personal choices. Only in exceptional cases (Rodriguez, Morgentaler, Re. B—decisions about one’s body or custody of one’s children) but stress, anxiety, and stigma that result from administrative civil procedure are not included. -Fundamental choices are under Wilson’s definition of liberty, but in terms of security of the person, stress is also affected by a limiting of fundamental choices <HIS FUNDAMENTAL CHOICES WERE NOT BEING LIMITED> (i) Two Limits to Claims Based on Psycho Stress: (1) Deprivation must be caused by state action –here the delay was not the cause of the stress (allegations were the cause; wasn’t induced by the state) [Blencoe then argued the delay exacerbated his stress]
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(2) Psycho stress can only involve breach of security if it involves interference w/ fundamental personal choices. It’s only in exceptional cases where state interferes w/certain personal choices of an individual that state-caused delay in HR proceedings could trigger the s.7 security of person argument
Section 7 and the Litigation of Poverty
Positive Obligations -The SCC has not yet accepted that sotp places positive obligations on the state to ensure an adequate level of social assistance to meet basic human needs, although it has left the door open slightly to the possibility of such recognition in the future
Gosselin v. Quebec
Facts: Louise Gosselin brought this action on behalf of all welfare recipients under the age of 30 in Quebec. Welfare benefits; 2 tier – those under 30 yrs of age got fraction of benefits paid to those over 30, unless they participated in incentive programs -McLachlin for majority: s.7 not yet held to impose positive obligations on the state; evidence of actual hardship here insufficient to “warrant a novel application of s.7” (80) the court is extremely reluctant to impose positive obligations on the state with respect to socio-economic matters. -Arbour dissenting: security of the person includes a positive right to state assistance in meeting basic needs—mind you this is the dissenting judgment.
R. v. Banks
Facts: charged under the Safe Streets Act for squeegeeing Appellants claimed the legislation was criminal in pith and substance (Prohibition, penalty and social evil) Issue: is there a s.7 argument available for the squeegee people Rule: court ruled against the squeegee people. -liberty is implicated since conviction can result in a prison sentence -POFJ – Squeegeers were arguing that the POFJ was VAGUENESS and the law was too vague, thus not in accordance with POFJ -pofj: arguments based on vagueness and overbreadth rejected Ryder: the courts have been reluctant to promote issues affecting those in poverty through the constitution
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Charkaoui SCC 2007 Facts: challenge to the validity of the security certificate provisions of the Immigration and Refugee Protection Act; one of three appeals heard by the SCC (see also Harkat; Almrei) - provisions empower Ministers to issue certificates detaining foreign nationals or permanent residents on security grounds - reasonableness of detention must be confirmed by Federal Court judge within 48 hours (for permanent residents) or within 120 days (for foreign nationals) - Government’s evidence need not be disclosed to detainee or lawyer - if sec. cert. upheld as reasonable, then detainees may be deported - Charkaoui, Harkat and Almrei fighting deportation on grounds that it will expose them to a substantial risk of torture - unanimous opinion written by McLachlin CJ strikes down parts of the legislation Rule: SOTP: not because of deportation itself (paras.15-16) because non-citizens do not have absolutee mobility rights (s.6) - POFJ : is procedural fairness, which comprises : 1) Right to a hearing before an independent and impartial tribunal; 2) Right to a decision based on the facts and the law; and – b/c withheld evidence 3) Right to know the case against oneself and the right to answer that case – denied knowledge of case against them 2) and 3) not satisfied violations of s.7 reasonable limits under s.1? - violations of s.7 difficult but not impossible to justify under s.1 (para.66) - objective: protection of national security - rational connection between non-disclosure of evidence and objective - minimal impairment: special counsel would better protect detainees’ interests without compromising security (para. 86) remedy - security certificate provisions declared invalid; declaration of invalidity suspended for 1 year in order to give Parliament time to amend the law
Equality Rights – s. 15
(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. (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.
Ultra-Basic Test • To infringe s.15, the law must: o Directly, or by indirect effect differentiate among individuals or groups, o On a enumerated ground (ground that is listed), o In a manner that “discriminates”
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There are two types of discrimination claims: o 1 – Direct A law which, on its face, discriminates (Gosselin, McKinney) Assigns benefits or burdens based on an ground o 2 – Indirect A law, which is neutral on its face, that applies equally to everyone, but whose effect is to disproportionately exclude on an enumerated or analogous ground This is where most rule are now being tested *NO need to prove intent to exclude, only disproportionate effect Most claims fall under ‘equal benefit’ and protective claims – underinclusive
Early Interpretation and Application of Section 15: The Andrews Test Andrews v. Law Society of British Columbia, 1989
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Facts: Andrews, a British citizen permanently residing in Canada met all the requirements for the provincial bar except that he was not a Canadian citizen. He brought a motion to strike down the requirement, claiming it was a violation of his s.15 rights Held, the Law Society rule violated s.15 and it could not be saved under s.1 o This case limited future challenges, by holding that the complainant would have to link the challenged laws to personal characteristics associated with common prejudices, stereotypes or patterns of disadvantage (listed or analogous ground) o Set out a test that is no longer followed requiring: A distinction in treatment; That results in the imposition of a burden or denial of a benefit; On the basis of an expressly prohibited or analogous ground Section 1 – fails on 2nd leg, though decent objectives, invalidated under proportionality Lavoie v. Canada, 2002 → citizenship found to be sufficiently important objective o Less stringent approach to section 1 more like McIntyre’s dissent, than Wilson’s maj.
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Law v. Canada, 1999
• Law was a widower who was denied pension benefits due to her age. o ISSUE: "whether ss. 44(1)(d) and 58 of the Canada Pension Plan infringe s. 15(1) of the Charter on the ground that they discriminate on the basis of age against widows and widowers under the age of 45, and if so, whether this infringement is demonstrably justified in a free and democratic society under s. 1?” Held, the court was unanimous in holding that s.15 was not violated o Law was unable to demonstrate that either the purpose or the effect of the impugned provision violated her human dignity so as to amount to discrimination based on AGE The court noted that challenged legislation simply reflected the fact that people in the Law’s position are more able to overcome long-term need because of the nature of the human life-cycle
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“Parliament is entitled, under these limited circumstances at least, to premise remedial legislation upon informed generalizations without running afoul of s.15(1) and being required to justify its position under s.1” – They can have general laws related to age without them being discriminated The law does not reflect that the “appellant is undeserving or less worthy as a person, only that the distribution of the benefits to her will be delayed until she is at a different point in her life cycle”
Law TEST
1(a) – the law itself draws a formal distinction between the claimant and others on the basis of one or more personal characteristics (e.g. Blacks are not allowed to drive) a. Does impugned law draw formal distinction btw the claimant and other based on personal characteristics (enumerated or analogous)? OR LOOK for unequal treatment between citizens in the sense of inequality before or under the law, or unequal benefit or protection of the law a. Formal distinctions: • McKinney, Law → based on age • Corbiere → based on whether band members lived on or off reserves • Andrews → between citizens and non-citizens 1(b) – the law fails to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantially differential treatment between the claimant and others on the basis of one or more personal characteristics (the law discriminates in its EFFECTS) o Akin to indirect/facially neutral discrimination (purpose vs. effect – Eldridge) o The distinction will not be readily apparent by looking at the text of the law o The most common examples are blanket rules that have an exclusionary effect because they do not acknowledge or accommodate people’s real differences – eg: Failure to accommodate deafness – Eldridge Disparate impact on heterosexuals and non-heterosexuals of exclusion of “sexual orientation” as a prohibited ground of discrimination – Vriend • Step 1 is a comparative exercise • Claimant chooses the appropriate comparator group • The court may refine the comparator (Law) • The court may also reject the suggested comparator, which might defeat the claim 2 – Subjects the claimant to differential treatment based on one or more enumerated and analogous grounds (HOW does it discriminate) o The enumerated grounds function as legislative markers of suspect grounds for differentiating among citizens, grounds associated with stereotypical, discriminatory decision-making (Andrews) o Analogous grounds serve as similar markers LOOK for grounds of historic disadvantage, marginalization, stigmatization, lack of political power and group stereotyping May represent personal characteristics that are immutable (race) or changeable only at unacceptable personal cost (religion, sexual identity)
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Once the SCC has recognized an analogous ground, it presumably does not have to be proved again (Corbiere) Analogous grounds recognized by the SCC: • Citizenship – Andrews, Lavoie • Marital status – Miron • Sexual orientation – Egan, Vriend • Aboriginality, off-reserve – Corbiere o Just because something is found to be an analogous ground does not automatically mean there has been discrimination (Corbiere) 3 – Has a substantively discriminatory effect in the sense that the differential treatment imposes a burden upon or denies a benefit from the claimant in a manner in which reflects demeaning, discrediting or prejudicial group stereotypes; or perpetuates or promotes the view that the claimant is less capable or worth of recognition or value as a human being or member of Canadian society equally deserving of concern, respect and consideration a. In determining whether the impugned legislation has one or more of these discriminatory effects, the court uses a mixed subject-objective test: i. It takes the perspective of the reasonable person in similar circumstances who takes into account the context of the claim (Law) ⇓ Contextual Considerations: Iaccobuci laid out four factors to be considered when determining whether the law demeans the claimant’s dignity (a) Pre-existing disadvantage, prejudice, or vulnerability experienced by the individual or group in question; (b) Whether the distinction corresponds with differences based on actual needs, (in)capacities or circumstances of the claimant class (is there a link between the claimed grounds and the claimant’s actual need/capacity?) • *Remember: mere differentiation isn’t suspect; only differential treatment that reflects or reinforces second class status and thereby fails to respect the equal dignity of all • *Where there is a distinction drawn that protects the most vulnerable, it will be difficult for more advantaged persons to challenge the law as discriminatory (Law) (c) Whether the purpose of the impugned law is ameliorating historic or existing disadvantage • If it excludes disadvantaged groups in need of the same remedial benefits, it probably infringes
(d)
nature and scope of interest affected-more severe and localized on the group the more likely it’s discriminatory.****After this you go to the Oakes test • Where the law restricts access to a fundamental social institution (medicare, family law mechanisms, family or spousal recognition) or affects some basic aspect of personhood (human rights code protections), it will infringe Court is kind using the contextual approach – if the law is really heavy-handed, if the difference between the burdens and benefits is extreme and people sharply affected, the more likely the court will look into it.
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1. Differential Treatment (May be “direct” (on the fact of the law), or “indirect’ (the adverse effect is discrimination).
Eldridge v. B.C., [1997] 3 S.C.R. 624 (Adverse effects)
Sign language interpreters; governed by the statute hospital insurance act (Decided before the law test): Facts: A women was delivering a baby and couldn’t communicate with doctors because there was no sign language interpreter. Issue: Was a s. 15 violation? Analysis: Once the gov’t implements a program it can’t discriminate on any grounds, it was held that when the government is trying to furnish a range of medical services it has to make sure that those services do not discriminate on any grounds. It discriminates in its effects as well, as communication between a patient and doctor was part of the parcel of the medicare benefit. With no service provided those incapable of communicating will be subject to adverse effects - government argued that the Charter doesn’t apply to inaction from taking steps – this was held to be insufficient Decision: the gov’t has to make sign language interpreters available While s.15 has never been held to impose positive obligations on the state, once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner • “In many circumstances, this will require governments to take positive action, for example, by extending the scope of a benefit to a previously excluded class of persons” -Thus s. 15 was held to be violated Section 1 • Court held that it could not be justified under s.1 • “The government has manifestly failed to demonstrate that it had a reasonable basis for concluding that a total denial of medical interpretation services for the deaf constituted a minimum impairment of rights – 2nd stage of the of Oakes proportionality test” • The government was given six months to ensure that such services would be provided where necessary Therefore the gov’t can violate by not doing enough and be held responsible under s. 15 for doing something that’s not enough.
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Vriend 1998 SCC
The rule or omission may be neutral on its face, but not in its effects -- 1 (b) Every disadvantaged group except gays and lesbians had access to mechanism to prevent discrimination – sexual orientation was NOT an enumerated ground, so it was added as an analogous ground - Everyone has a sexual orientation, but NOT everyone is equal to do anything about it o Heterosexuals did not face a similar disadvantage – thus there was an s. 15 violation - Iaccobuci held that this case failed all part of the Oakes test, so could not be saved by s. 1 Question: Does s. 15 confer positive rights? There is no obligation on the state to deliver benefits to people in need, when governments choose to act and implement a program that delivers benefits or services, it has obligation that those services are delivered in a non discriminatory fashion. Therefore results are usually to extend the scope of services that the government already provides. Recognized analogous grounds (only 4 raised so far) • Sexual orientation (Egan; Vriend; M v. H; Hislop) • Marital status (Miron; Walsh; Hodge) – discrimination between unmarried and married couples, and difference of treatment with common law couples • Citizenship (Andrews,; Lavoie ) • Aboriginality-residence (Corbiere) – a analogous grounds, living on reserve or off reserve but still part of a band -
Hodge v. Canada, [2004] 3 S.C.R. 357
Facts: A challenge to the provisions of a pension plan, whereas the survivors pension was available to separated married spouses but not common law separated spouses. Claimant was claiming that he was being unfairly treated on the basis that he was not married. The Claimants used the comparator group of separated married spouses, but court said the right comparator group was divorced married spouses. Test for Comparator Group: The comparator group must posses the same characteristics that are relevant apart from the claim of discrimination. Ratio: former common law spouses and divorced spouses are treated the same, therefore it doesn’t trigger a charter claim under s. 15, as they are both treated the same.
Auton v. B.C. (Attorney General), [2004] 3 S.C.R. 657
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Facts: Challenge to the BC government to fund behavioral therapy for autistic children aged 3 – 6. Claimants asserted the proper comparator group was non disabled children or adults with mental illness. However the court held the right group was a non autistic person seeking funding for a non core therapy which is emergent or only recently becoming recognized as medically required. Decision: Court rejected the challenge stating they were not treated differently. Analysis: two reasons McLachlin J dismissed the claim: 1. “Non-core services” not a benefit provided by law (131-4); 2. Differential treatment not established -The treatment at issue was not established to be useful at the time, it was still controversial. So the comparator group has to take that into consideration and compare them with other non-core therapies whose effectiveness is uncertain.
Wynberg 2006 Ont CA
Facts: Challenge to limitation of funding for intensive behavioral intervention for children aged 2 -5, claimants are parents of children aged 6 and over. Claimants wished the comparator group to be children aged 2 -5 and able bodied children over the age of 6, they claimed there was a discrimination based on age and on the basis of disability. The government didn’t give autistic children over the age of 6 help Analysis: the claim failed at the 3rd step of the law test, since they were focusing resources to the age group it was proven to help, i.e. kids under the age of 6. Additionally, the failure to provide intensive therapy for children who were school aged, the wrong comparator group was used, according to the court, it should have been other disabled children over the age of 6
Hislop 2007 SCC
Facts: Challenge to the limitation of survivor benefits under the Canadian Pension Plan to persons whose same sex spouse died after Jan. 1, 1998. Claimant argued that limitation of same sex survivors violated his s. 15 right. Analysis: What is the appropriate comparator group? Claimants say comparator groups should be between same sex survivors and opposite sex survivors whose spouses died before 1998 -Gov’t says comparator groups should be same sex survivors whose spouse died before Jan. 1, 1998 and same sex survivors whose spouse died after that date. Decision: The difference of treatment is based on date of death, there is no difference of treatment on prohibited grounds, as s. 15 only protects the most vulnerable. Thus, they agree that discrimination is present but not discrimination that s. 15 regulates
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2. Enumerated and Analogous Grounds Corbiere v. Canada, [1999] 2 S.C.R. 203
Facts Members of the Batchewana Indian band sought a declaration that a section of the Indian Act, which precluded members living off the reserve from voting in band elections, violated s.15(1) Decision: Held, in the unique situation of Aboriginal culture, off-reserve residence was a valid analogous ground • Human dignity was impaired because the different treatment of off-reserve band members implied that they were “lesser members of their bands or persons who have chosen to be assimilated by the mainstream society” • This case discusses analogous grounds o All enumerated or analogous grounds “often serve as a basis for stereotypical decisions made not on the basis of merit, but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity” – e.g. religion – it would be an unacceptable cost to change my religion Italicized phrase more or less = immutable o Also look to see whether the characteristics are involuntarily inherent, as opposed to behaviour
3. Discrimination M v. H, [1999] 2 S.C.R. 3
Same sex relationship with economic dependency. M wants support from the Ontario Family Law Act; definition of spouse Challenge to exclusion of same-sex spouses from right to claim support on the breakdown of a common law relationship. The difference in treatment on a prohibited ground Facts: M and H, a same sex female couple, cohabitated from 1982 – 1992. After their business failed, H was able to find employment, but M was not. M commenced an action against H for spousal support, asserting that s. 29’s definition of “spouse” in the Family Law Act was unconstitutional by virtue of its exclusion of same sex couples. The court sought to determine whether the definition of “spouse” amounted to discrimination – 3rd part of Law test. Decision: DISCRIMINATION WAS FOUND IN THIS CASE -The legislation fails all three parts of the Law test as well as s.1 • The court held that the provision failed the first two sections of the Law test – differential treatment on an enumerated ground
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Turning to the four contextual factors from Law, the court finds that there is a significant pre-existing disadvantage and vulnerability and these circumstances are exacerbated by the legislation o The legislative provision in question draws a distinction that prevents persons in a same-sex relationship from gaining access to the courtenforced and protected support system Turning to the third factor, the court rejects the idea that the allegedly ameliorative purpose (helping women in married or opposite-sex relationships) of this legislation does anything to lessen the charge of discrimination in this case Section 1 o The exclusion of same-sex couples was not rationally connected to the objectives of “the equitable resolution of economic disputes arising form the dissolution of intimate relationships” and the alleviation of the burden on the public purse by shifting the obligation of support to the parents or spouses who have the capacity to do so -Thus fails section 1 of the proportionality test
REMEDY: The court struck down the offending provision (s.29) subject to a six-month delayed declaration of invalidity. Instead of reading in same-sex couples, the court distinguished Vriend. Here, reading in s.29 would have had significant repercussions for a separate and distinct scheme under the FLA. Therefore, it is not safe for the court to assume that this is the path that the legislation would have taken. Striking down the entire FLA would be excessive: since the offending provisions are not so inextricably bound up with the non-offending that they cannot independently survive, it is safe to assume that the legislature would have passed the sound parts without the unsound parts. Therefore, severing s.29 of the FLA (declared of no force and effect) temporarily suspended for six months: the suspension is necessary to give the legislature time to devise its own approach to solve the unconstitutionality of the FLA and of other Acts which use similar offending definitions of “spouse”. The legislature is better suited to address these issues form both a financial and a democratic point of view.
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Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429
Facts: Louise Gosselin brought this action on behalf of all welfare recipients under the age of 30 in Quebec. Welfare benefits; 2 tier – those under 30 yrs of age got fraction of benefits paid to those over 30, unless they participated in incentive programs
Constitutional Law of Canada Issue: Is this age based differential treatment a violation of s. 15(1)?
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Rule: Found there to be no breach of s. 15(1). Examined the issue from the perspective of a reasonable welfare recipient who is under 30 years old – ask, would this reasonable young welfare recipient think the program is reasonable? -The court argued that the reasonable welfare recipient would like to receive less welfare in exchange for incentives that would help them get a job -Whether or not a reasonable person in circumstances similar to that of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning the claimant’s dignity? -In the Majority’s view, this government program enhanced their dignity; it did not detract from it. The Majority said the purpose of the program was to get unworking young people back on their feet -Haigh says: “reasonableness” does not need to be imbued in s.15(1) – that is what we have a sec 1 analysis for because of the contextual factors raised in the Law Test, reasonableness enters the s. 15(1) analysis – this makes it increasingly like an Oakes analysis creeping into this case -idea of reasonableness is now express in s.15(1) analysis. Rejected in Andrews; implied in Law via the dignity concept. -welfare in Quebec, less $ for younger persons, not discriminatory since getting a job will aid dignity McLachlin for majority: s.7 not yet held to impose positive obligations on the state; evidence of actual hardship here insufficient to “warrant a novel application of s.7” (80) the court is extremely reluctant to impose positive obligations on the state with respect to socio-economic matters. Arbour dissenting: security of the person includes a positive right to state assistance in meeting basic needs—mind you this is the dissenting judgment. Note: Canadian Foundation for Children, Youth and the Law v. Canada <SPANKING CASE> • s.43 of the Criminal Code upheld in 6-3 ruling • imposes differential treatment on the basis of age is it discriminatory? • McLachlin for majority finds no violation of human dignity even though three of the contextual factors lean in that direction (para.56) for the majority, the correspondence factor is determinative: s.43 “responds to the reality of [children’s] lives by addressing their need for safety and security in an age-appropriate manner.” (para.51) • Arbour dissent: did not address s.15 • Binnie dissent: s.15 violated; s.43 a reasonable limit for parents, not teachers (123) • Deschamps dissent: s.15 violated; s.43 cannot be upheld pursuant to s.1 as it does not minimally impair children’s equality rights and its negative effects are disproportionate (124)
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Section 15(2): Affirmative Action Lovelace v. Ontario, 2000
(Affirmative Action) • Plaintiffs were a group of non-registered First Nations bands (Métis) who were status Indians. They applied for a declaration that they were entitled to share in the profits of Casino Rama. The trial judge sided with the plaintiffs and the Ontario Government and Chiefs of Ontario appealed. Held, the court was unanimous in their decision that the appellants failed to demonstrate that, viewed from the perspective of the reasonable individual, in similar circumstances, the exclusion from the First Nations Fund had the effect of demeaning the appellants’ human dignity o Iacobucci concluded that the appropriate comparison group was between the situation of band and non-band Aboriginal communities The court then considered the four contextual factors o 1 – Pre-existing Disadvantage, Stereotyping, Prejudice or Vulnerability Appellants failed to establish that the First Nations Fund functioned by device of stereotype • The fund does not conflict with the purpose of s.15(1) and does not engage the remedial function of the equality right o 2 – Correspondence to Needs, Capacities and Circumstances Focuses on the partnered relationship between First Nations bands and the government While the non-band groups have similar needs of economic development, etc, the court stresses the specific aims of the program o 3 – Ameliorative Purpose Both claimant and targeted group are equally disadvantaged Dealing with a targeted ameliorative program which is alleged to be underinclusive “The First Nations Fund has, therefore, a purpose that is consistent with s.15(1) and the exclusion of the appellant does not undermine this purpose since it is not associated with a misconception as to their actual needs, capacities and circumstances” o 4 – Nature of the Interest Affected ???
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Manitoba
• How did parliament obtain power to create Manitoba in 1870 with the Manitoba Act? They didn't have the power until Constitution Act 1871. See s. 4, regulating powers over land that is part of Canada but not a province. S. 5 declares retroactively valid the Manitoba Act. s. 23 Manitoba Act. C.A 133.
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Patriation
• • • Once patriation takes place, Imperial law can no longer simply declare Colonial laws (i.e. Manitoba laws) to be valid. S.43 allows amendment of the constitution by proclamation of the Governor General and approval of two federal houses and the assembly of the province in question (of course the assembly of Manitoba is in this case invalid). An amendment was worked out such that future legislation would be bilingual but the previous legislation would be valid retroactively (temporary validity) without having to be translated. Circularly, this made the provincial assembly valid, which allows for use of section 43(45?). Case had to be heard by the Supreme Court directly from the Provincial Magistrate, because the Court of Appeal did not exist prior to 1908. Case had to be argued without using any unilingual acts.
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Re Manitoba Language Rights [1985] 1 S.C.R. 721 (P371)
Supreme Court of Canada
• • • • Constitution Act, 1867 s.133: Acts of the legislature shall be printed and published in both English and French. Manitoba Act, 1870 s.23: Almost same wording as the Constitution Act, 1867 s.133. Entrenches s.133, creating manner and form requirements for future legislation. Manitoba enacted the Official Language Act, 1890: Notwithstanding any statutes or laws, Manitoba is going to use only English in their Acts and records. An Act Respecting the Operation of s.23 of the Manitoba Act in Regard to Statutes, 1980 (ARO23MA) s.4(1): Legislation introduced in one Official language would be translated into the other language after enactment and the translation would have the same force and effect. Questions put to the court: Are the requirements of s.23 and s.133 mandatory? (A: Yes) Are statutes and regulations not printed and published bilingually invalid because of s.23? (A: Yes, but they are temporarily valid until translated.) If invalid, do they have any force or effect? (A: Yes, because of temp. validity) Are any provisions of ARO23MA inconsistent with s.23, and of no force or effect? (A: If ARO23MA was not printed and published bilingually, it is completely invalid and of no force or effect. Either way, ss.1-5 are invalid and of no force or effect because they are at odds with s.23 in purporting to authorize: o Unilingual enactment, with translation later. o Enactment of a translation by certification and deposit with a clerk of the house, giving force of law without royal assent by Lt. Governor. o Resolution of ambiguities by reference to text in one language, while texts are supposed to be equally authoritative. Even though Manitoba laws were deemed to be of no force and effect, they were saved by the de facto doctrine and rule of law, and given temporary validity. The de facto doctrine gives effect to expectations of those who relied upon invalid laws. Rule of law allows for measures, such as temporary validity, to be taken in order to avoid legal chaos.
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APPLICABILITY...........................................................................................................8 THE INTERJURISDICTIONAL IMMUNITY DOCTRINE.....................................8 Majority (Ritchie): .......................................................................................................30 Provision is preventative and regulatory rather than penal and therefore acceptable under provincial head of power – province can regulate local trade (intraprovincial) and can set its own standards;........................................................................................30 Province can entrench on areas of morality as long as pith and substance is regulatory. ........................................................................................................................................30 Morality and criminality are far from co-extensive provincial legislation which establishes and enforces a local standard of morality does not necessarily invade the federal criminal law power............................................................................................30 (Separation of powers and respect for federalism underlie the majority judgment) ....30 SECTION 35 – THE CONSTITUTIONAL ENTRECHMENT OF ABORIGINAL RIGHTS.........................................................................................................................37 R v. Sparrow [1990] SCR – page 532........................................................................37 R. v. Van der Peet (1996) – page 545........................................................................39 4 stages of Charter analysis...........................................................................................55 I. Interpreting Rights.....................................................................................................56 A. Purposive Approach..............................................................................................56 B. Aids to / Sources of Interpretation...........................................................................57 II. Defining Limitations: Section 1 – page 748.............................................................58 A. Prescribed by Law.................................................................................................59 B. Justification...........................................................................................................60 III. The Override/Notwithstanding Clause (s.33) – page 775.......................................65 The Application of the Charter – page 781...................................................................66 II. Governmental Action – page 786.............................................................................67 A. Governmental Actors ...........................................................................................67 2) It exercises governmental functions: Godbout 1997 SCC (795)..............................69 B. Governmental Acts...................................................................................................69 III. Government Inaction..............................................................................................70 IV. Application of the Charter to Courts and the Common Law..................................71 Purposes of s.2(b)...............................................................................................................75 Means of Restricting Expression...............................................................................76 Establishing a Violation of s.2(b) .............................................................................76 S. 2(b) Analysis – breakdown from Irwin Toy 1989 SCC at 908......................................76 1. does the activity at issue convey a meaning in a non-violent form? if so, ...............76 2. is the purpose or effect of the impugned government action to control expression by reference to its content? if so, violation established; ....................................................76 S. 1 Analysis......................................................................................................................76 section 1: contextual analysis.....................................................................................76 Dolphin Delivery SCC 1986 – page 901...................................................................77 Commercial Expression................................................................................................77 Irwin Toy 1989 SCC – page 907...............................................................................78 RJR-MacDonald SCC 1995 (920).............................................................................78 R. v. Banks Ont CA 2007..........................................................................................79 Controls on Election Spending..................................................................................87
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Libman 1997 SCC – page 990...............................................................................87 Note on Publication Bans...........................................................................................87 Thomson Newspapers 1998 SCC (note 4, page 1001)..........................................87 To qualify as a principle of fundamental justice, a principle must:..............................89 What principles have been determined NOT to be principle of fundamental justice?. 90 Flora v. Ontario 2007 Ont. SCJ.............................................................................93 Charkaoui SCC 2007...........................................................................................100 Manitoba..................................................................................................................110 Patriation..................................................................................................................111 Re Manitoba Language Rights [1985] 1 S.C.R. 721 (P371)...................................111 Manitoba……………………………………………………………………………….113
PART 1 -- FEDERALISM
VALIDITY
Pith and Substance - Swinton (Page 205) S. 91 – Federal powers S.92 – Provincial powers Two competing interpretations: 1) Federal powers are “general” in scope as indicated by the POGG, unlimited by anything except the list of provincial powers (the classes of s.91 are only illustrative) – Bora Laskin took this position 2) Federal powers are found in the classes of s.91 and the POGG powers are only residuary, to be used in cases where matters are not clearly assigned to either the federal or provincial branches – professors Lysyk and Lederman took this position In fact, the courts do give primary effect to the enumerated powers, using POGG only in limited circumstances (second interpretation above). Choosing between competing classifications (page 206) Three steps described by Abel: 1) identification of the matter of the statute, 2) delineation of the scope of the competing classes 3) a determination of the class into which the challenged statute falls This is problematic in practice since the characterization of the matter (step 1) may be affected by a judge’s view of the appropriate class it should fall under (step 3), thus creating the possibility for judicial bias. Step 1: Identification of the matter of the statute
Constitutional Law of Canada Judges look at: the statutory context purpose of the legislation (legislative history, government reports re: problems which triggered the legislation in the first place) the effects of the legislation Some judges give more weight to the effects, others to purpose. There is no uniform guideline as to when one approach should be preferred over the other. The dominant form of inquiry is into purpose (the extent to which a court if deferential to legislative purpose notwithstanding legislative effects, allows governments to expand their areas of responsibility
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Step 2: the scope of the classes of legislative subjects despite reference to “exclusivity”, ss. 91 and 92 open the possibility for overlapping legislation since the constitution refers to classes rather than persons or activities classes are not watertight categories, rather they are porous: using different classes of power, both the federal and provincial governments can address the same issue: the double aspect doctrine precedent and history play important roles in determining the scope of classes
Step 3: determining the class in which the challenged status falls Since there are no fixed guidelines, this is often dictated by the judge’s own personal views Lederman: judges should weigh uniformity and diversity and should follow widely prevailing beliefs; absent such beliefs, it is basically up to the judge’s best judgment (see page 207 quote)
Many claim that there is no single prevailing belief, rather only competing perspectives based on personal views re: federalism, its ideal character and the “proper” balance between central and local control. Starr v. Houlden (page 212) Approach to characterization: identify the matter of the law by finding its dominant feature (its “pith and substance”) o “pith and substance” is found by examining the purpose and effect of the law o Consider legislative scheme, precedent and a “concept of federalism”
Constitutional Law of Canada Assign the newly determined “pith and substance” under a specific class (s.91 or 92)
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R. v. Morgentaler (page 213) Is the Nova Scotia Medical Services Act provincial health regulation -s.92(7), (13) and (16)- or is it federal criminal law –s.91(27)? Purpose and Effect: -Look at the law itself and the EFFECTS to get a sense of the PURPOSE - Strict Legal Operation - legal effect of legislation (the way it affects rights and liabilities of those subject to it) is a good indicator of its purpose (even if this is not fully intended or appreciated by the enacting body) - Social/economic purposes, background of statute, circumstances surrounding enactment, practical effect of the legislation in operation Extrinsic Materials: related legislation the problem meant to be addressed by the law legislative history (Hansard increasingly accepted to establish background and purpose) materials the legislature had before it when the statute was enacted
Sopinka: Considered: the text of the legislation, the events leading up to its enactment, related policy documents prepared by the government, statements made in the legislature, the law’s effects, plausibility of its stated purpose Concluded: primary aim of legislation was suppressing abortion clinics which has historically fallen under the federal criminal law powers (repealed s.251 of CC) any concerns with health care policy, emergence of two-tiered health system etc were only ancillary to the main purpose of prohibiting abortions outside hospitals law is Ultra Vires since its “pith and substance” is regarding criminal law (Criminal law defined for the purposes of the division of powers by Sopinka as any law that has as its dominant characteristic the prohibition of an activity, subject to penal sanctions, for a public purpose such as peace, order, security, health or morality).
Colourable legislation: on its face addresses matters that are within a particular legislation’s jurisdiction, but in “pith and substance” is directed at matters outside its
Constitutional Law of Canada jurisdiction. Reference re Firearms Act: “where the effects of the law diverge substantially from the stated aim, it is sometimes said to be “colourable”. (page 224) -Meaning, the law is not what it says it is
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Walter v. AG Alberta is an example of a case where the court focused on the legislative text and did not look at legislative history, social facts, absence of plausible intra vires legislative purpose etc. the law in Walter was found intra vires.
Necessarily Incidental (aka “ancillary doctrine”)
-The dominant characteristic of the law could be provincial, but the effects can have impact on matters outside the province’s jurisdiction NI doctrine is used in cases where the provision being challenged is part of a larger scheme of legislation. When impugned provision is examined in isolation, it appears to intrude into jurisdiction of other government. However, if larger scheme of which the impugned provision is a part is found constitutionally valid, the impugned provision may also be found valid because of its relationship to the larger scheme This will depend on how well the offending provisions are related into the valid scheme - if not closely related, provision will be severed and declared invalid; if closely related, will be declared necessarily incidental to the valid scheme and the law as a whole will be upheld permits governments to intrude substantially on other level of government so long as most imp features of their laws remain within jurisdiction. NI Doctrine holds that, if the P and S of legislation fits within a particular head of power, portions of that act may nevertheless exist outside that head of power, so long as those portions are necessarily incidental to the act as a whole General Motors of Canada Ltd. v. City National Leasing (1989) SCC (page 225) (Example of Necessarily Incidental Doctrine) Facts: • CNL brought civil action against GM alleging it suffered losses as result of discriminatory pricing policy that was prohibited under s. 33 of the Combines Investigation Act. • GM argued that s. 33.1 of Combines Investigation Act (CIA) was beyond jurisdiction of Parliament, since the creation of civil causes of action falls within provincial jurisdiction in relation to “property and civil rights” Issue: Should CIA provision be severed and struck down because it invades provincial jurisdiction over property and civil rights? Analysis <TEST FOR NECESSARY INCIDENTAL DOCTRINE>: Steps to take when a constitutional challenge focuses on a single provision of an Act/Scheme: 1) Is the Act as a whole valid? (if NO, statute will be struck down)
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2) If so, is the offending provision, viewed in isolation, valid? (in P/S, is it within the jurisdiction of enacting government?) 3) If not, to what degree does it intrude on the other level of government’s jurisdiction? 4) Is the offending provision sufficiently integrated within the valid scheme, such 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). Application to the impugned provision: • S. 31.1 creates a civil right of action, therefore not difficult to conclude that the provision does appear to encroach on provincial power to some extent • Creation of civil actions is generally a matter within provincial jurisdiction under s. 92(13) of CA 1867 • Yet, s.31.1 is only a remedial provision – it’s purpose is to help enforce substantive parts of the Act, but it is not in itself a substantive part of the Act • Remedial provisions are less intrusive vis-à-vis provincial powers • Also, limited scope of the action – s. 31.1 does not create a general cause of action; it’s application is carefully limited by the provisions of the act • Also, fed. government is not constitutionally precluded from creating rights of civil action where such measures may be shown to be warranted • Therefore, necessary link between s. 31.1 and the Act exists – the provision is functionally related to the general objective of the legislation, and to the structure and content of the scheme Ratio: Although the provision represents an infringement on provincial powers, the court held that this encroachment was necessarily incidental to the main objectives of the legislative scheme in which the provision was couched. Since the provision represented a minimal infringement on provincial powers, and was functionally related to the objectives and structure of the scheme as a whole, the provision was upheld as applicable.
Double Aspect Doctrine (Page 231)
Subjects that fall within provincial jurisdiction may in another aspect fall within federal jurisdiction, and vice versa (Doctrine was first set forth in Hodge v. the Queen). DOUBLE ASPECT allows for overlapping federal and provincial matters, each dealing with a different aspect of the concrete subject matter affected. Allows for more overlap between federal and provincial statutes than NI Doctrine Takes NI doctrine a little further. By their nature, some subjects may have a dual nature (i.e., driving in relation to Licensing (provincial) and drinking (fed under criminal law)
Multiple Access Ltd. v. McCutcheon (1982) SCC (page 232)
Constitutional Law of Canada (Example of Double Aspect Doctrine) -
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Facts: The Ontario Securities Act prohibited insider trading in shares trading on the Toronto Stock Exchange. The Canada Corporations Act had almost identical provisions, applicable to corporations incorporated under federal law. Claim against the defendants was based on Ontario legislation, because the limitation period had expired under the Federal statute only. The defendants, the alleged insider traders, argued that the Ontario statute could not validly apply to their case because the regulation of trading in shares of federally incorporated companies fell within exclusive federal jurisdiction. Alternatively, they relied on the doctrine of paramountcy to assert that the Ontario provisions were rendered inoperative, in the case of insider trading in a federally incorporated company, by the provisions of the Canada Corporations Act which dealt with the same issue. Issue: Are the Canada Corporations Act, or the Ontario Securities Act, ultra vires the powers of Parliament or the Ontario legislature, respectively? Decision: Both sets of statutes are applicable and operative under the double aspect doctrine. The claim against the defendants is constitutional. Analysis: • Court determined the P&S of both the federal and provincial legislation: The federal insider trading provisions were deemed valid as their P&S was held to be in relation to the regulation of federal corporate structure, criminal law s. 91.27, and the power to incorporate companies s. 91 (opening words) • The provincial insider trading provisions were held to be valid in P&S, as they related to the securities trade, which comes within “property and civil rights” s. 92.13 • Ratio: Double aspect doctrine rendered both sets of provisions operative, as the provisions were of roughly equal importance and demonstrated no apparent conflict.
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Class Comments: The court recognized that there are dual aspects to certain things; there is no point in trying to create boxes within ss. 91, 92 which are completely self-contained. This will lead to gaps in the legislation where no one can regulate. Must be flexibility built into the constitutional framework. o Example of dual, concurrent governmental powers over certain sectors, HEALTHCARE. Federal government allocates funds, places restrictions on the uses of these funds and the development of private alternatives. Provincial government determines “medically necessary” services, has control over administration and development of hospitals. The federal government has effectively gained power over healthcare, largely through the POGG clause.
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B. Ryder "The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces and First Nations" (page 237) -Classical approach is to keep them in boxes and make 91 and 92 more exclusive -Modern approach is more overlap between prov. and fed. jurisdictions 1) The Classical Paradigm has been applied to legislation that is viewed as interfering with the operation of free markets -To keep free markets functioning properly, there is a big divide between federal and provincial heads of powers to make sure the law functions properly 2) The Modern Paradigm has been applied to legislation perceived to deal with issues of morality and social order
APPLICABILITY
THE INTERJURISDICTIONAL IMMUNITY DOCTRINE -Where a provincial law deals with a legitimate provincial subject matter but incidentally affects the CORE of a federal subject matter, the provincial law will be READ DOWN so as to confine the law to matters that do not affect the core of the federal legislation. Operates only upon provincial statutes & only with regards to major federal areas (areas of applicability are defined by the Common Law): o o o o o Federal works and undertakings, Federally incorporated companies, Banking Elections Aboriginal rights and title
Interjurisdictional Immunity doctrine – The conceptual opposite of the Double Aspect Doctrine doctrine of INTERJURISDICTIONAL IMMUNITY constitutes a departure from tendency to create overlapping jurisdiction, and is a doctrine that emphasizes exclusivity of jurisdiction. Comes into play in situations where a provincial law is clearly valid in most of its applications, but in some of its applications it arguably overreaches, affecting a matter within fed jurisdiction in those circumstances where the doctrine of interjurisdictional immunity applies, provincial laws are not allowed to have even an incidental effect on matters falling within federal jurisdiction, and there is no double aspect to the matter regulated.
Constitutional Law of Canada Commission de la Sante et de la Securite du Travail v. Bell Canada (Bell #2) (1988) SCC - Page 246 (An Example of Interjurisdictional Immunity)
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Facts: - Quebec legislature enacted law which required employers to reassign pregnant workers who were working in video terminals. o This was a legitimate use and application of provincial powers. Provincial health and safety laws are valid under the provincial head of power; without question, the legislation falls within s. 92. - Bell Canada, a Federal undertaking, refused to abide by the provincial regulations. Issue: Whether provincial occupational health and safety laws (within the sphere of s. 92) could apply to a federal undertaking. Specifically, is Bell Canada, an interprovincial telephone company, bound by a Quebec law that requires protective reassignment of pregnant workers who work with video monitors? Decision: Applying the IjI doctrine, SCC held that federally regulated undertakings are immune from provincial health laws. Provincial law was constitutionally incapable of applying to the federal undertaking, and had to be read down so that it did not apply to the federal undertaking -So the provincial is completely valid, but does it apply to employees of a federal company Analysis: Court held that the law was of a general undertaking – but affected the “basic minimum and unassailable core of a federal subject/undertaking”. Court therefore held that the IjI applied. o This was a slight modification of the IjI doctrine – provincial law now had to affect a CORE of a federal undertaking. What is the core? In this case, the argument was that managing the company (determining which workers were assigned what tasks) was the core of the federal undertaking. o Law applied to every other worker in Quebec, EXCEPT those employed as part of a federal undertaking, in which case it would not apply. Ratio (Beetz): • When provincial law affects a core of a federal undertaking, the law is not applicable with respect to the federal undertaking. Provincial law must be read down since it would otherwise affect an essential or vital part of the management (THIS IS HOW YOU KNOW IT IS INVADING A FEDERAL CORE)of the federal undertaking
-What about Double Aspect doctrine? Court characterized the DA doctrine as “permitting Parliament and a province to enact two relatively similar rules provided they are legislating for different purposes and on the basis of different aspects.
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-Court held that DA doctrine did not apply here, “since the legislators have legislated for the same purpose and in the same aspect”. Court further noted that the DA doctrine should only be used with great caution in the future, as it “would be a source of uncertainty and endless disputes”. Irwin Toy Ltd. v. Quebec (AG) [1989] SCC – Page 253 – Note #5 Facts: Quebec legislation prohibited advertisers from certain kinds of ads geared towards young children. Quebec legislature felt that children were especially vulnerable to certain ads, and sought to protect children by effectively prohibiting some kinds of ads in the interests of child safety. Irwin Toys was the manufacturer; not directly affected by the rule on advertisements. Sought to challenge the constitutionality of the bylaw nevertheless, on the grounds that in impinged federal undertakings with respect to broadcasting – A FEDERAL POWER Issue: Can the IjI doctrine render a provincial statute inoperable when a provincial law of general application indirectly affects a federal undertaking? Analysis: Court modified the IjI doctrine to allow for instances where the law indirectly affects the federal undertaking the test is not whether it impairs or impacts on the core, but whether it sterilizes the operation or management of the undertaking.
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Ratio/New Test for Interjurisdictional Immunity doctrine: First, assess whether a) Provincial law is of specific application OR b) Provincial law is of general application o If specific (specifically aimed at a federal entity), the law is invalid. o If the law is a provincial statue with general application, assess whether it directly or indirectly affects the federal work or undertaking. In Irwin Toys, the law against advertising (Irwin Toys) only indirectly affected Broadcaster. If it directly affects, it is sufficient that the legislation affects a vital or central part of the management or operation IjI can be invoked. If it indirectly affects, then the legislation must go as far as to sterilize/impair the operation or management before IjI can be invoked.. o The threshold is higher for indirectly affecting the entity.
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Majority decided the provincial law only indirectly applied to the federal undertaking and since it did not sterilize/impair the operation of broadcasting, it could validly apply to it. Irwin Toy is the only case in which the meaning of IjI is actually elucidated yet it is still not very much to go on in discerning exactly what is meant by the IjI doctrine.
OPERABILITY
PARAMOUNTCY When otherwise valid federal and provincial statutes CONFLICT, the federal legislation is PARAMOUNT and renders the provincial legislation INOPERATIVE to the extent of the inconsistency. Provincial legislation is not rendered invalid, only its operation suspended. If the federal law is repealed or amended so as to remove the conflict, the provincial law springs back into operation. The Paramountcy issue ONLY arises after the issues of validity and applicability have been determined If a court has determined through the process of characterization, that both the federal and provincial laws in issue are valid, and both apply to the facts of the case, then a paramountcy issue may arise. Will not arise if court finds that one or the other of laws is invalid, or that the provincial law is inapplicable (using doctrine of Interjurisdictional Immunity) Narrow reading of conflict would allow both fed and provincial laws to operate unless it is impossible for those subject to the two leg schemes to comply with both (EXPRESS conflict or Impossibility of Dual Compliance test) Broader reading of conflict - would hold a valid provincial law inoperative whenever it has an impact on a matter already regulated by valid fed law: Covering the Field test or the Negative Implication doctrine the SCC has tended at least until recently to favor a narrow approach, that leaves great deal of room for the concurrent operation of fed and provincial statutes Court has upheld provincial statutes that impose different standards and consequences for driving offences than those in Criminal Code. Impossibility of Dual Compliance test-Ross case and also confirmed by SCC in Multiple Access v. McCutcheon (leading case)
Multiple Access Ltd. v. McCutcheon (1982) SCC – page 260
Constitutional Law of Canada (Direct Inconsistency/Paramountcy) -
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Facts: Federal government passed Corporations Act, provinces have Securities Acts. The only basis for difference between federal and provincial legislation was the limitation period. McCutcheon – wanted to rely on the federal statute because the limitation period had expired. Argued that federal statute should have paramountcy – two laws dealing with the same matter, federal legislation should govern.
Held: Court said paramountcy was not applicable – reiterated the notion of direct conflict (from Ross). Held (Dickson J.) that, in order to conflict, one act must say one thing, the other act must be a complete opposite (p. 263). Expanded on decision in Ross by stating that paramountcy could be invoked only if compliance of one act is “defiance” of the other. Ratio: Only DIRECT conflict gives rise to the doctrine of paramountcy, such that compliance with one law would be defiance of another. “Mere duplication without actual conflict or contradiction is not sufficient to invoke the doctrine of paramountcy and render valid provincial. leg inoperative.”
Bank of Montreal v Hall, (1990) SC – page 264 Facts: Hall, a farmer, contracted loans from a bank and in return granted the bank a security interest on a piece of farm machinery pursuant to a Federal Bank Act. Again, two competing acts: Bank act of Canada and the provincial Consumer Protection Act, a section of which relates to banking, and would render the Federal Act inapplicable after a limitation period. Issue: Does the federal Bank Act conflict with the provincial Act such that the provincial provisions should be rendered inoperative? Holding: Doctrine of paramountcy may be invoked as the two Acts are incompatible. Provincial legislation is rendered inoperative with respect to security interests.
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Ratio: Court adopted a more broad application of paramountcy doctrine: “A showing that conflict can be avoided if a provincial Act is followed to the exclusion of a federal Act can hardly be determinative of the question whether the provincial and federal acts are in conflict, and hence repugnant…The focus of the inquiry [whether provincial provisions are inoperative under the paramountcy doctrine] must be on whether operation of the provincial act is compatible with the federal legislative purpose”. -LEGISLATIVE PURPOSE IS KEY HERE – Prov. legislation infringed the purpose of the federal legislation
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Class Comments: After Hall, a conflict may give rise to the doctrine of paramountcy by either a) an impossibility of dual compliance (as per McCutcheon) OR b) an incompatibility of legislative purpose)
Saskatchewan v. Rothmans, Benson and Hedges (2005) – page 4 in the Supplement – <somewhat reconciles this ambiguity> - SCC held that all paramountcy cases must be approached with a two step analysis: o Can a person simultaneously comply with both federal and provincial statutes/provisions? (original test, from McCutcheon) If the answer is no, the federal statute must prevail. o If yes, does the provincial act frustrate federal Parliament’s purpose (from Hall)? Even if you can comply with both, must still consider whether the law frustrates Parliamentary purposes. -In this case it was held that it did NOT frustrate Parliament’s purpose in passing the law – protecting people from cigarettes, the prov. statute did this as well, just took it a step further
Peace, Order, and Good Government
NOTE ON THE HISTORICAL DEVELOPMENT OF THE P.O.G.G. POWER – page 273 Two branches of POGG – emergency and national concern. Many early decisions of the Privy Council (PC) modified this model into something slightly different, by conflating national concern with emergency. Essentially collapsed national concern into the emergency power of POGG The modern formulation of POGG is based on Viscount Simon’s judgment in AG Ontario v. Canada Temperance Federation 1946. Viscount Simon- expanded scope of the p.o.g.g. power by recognizing the power to legislate for the prevention of an emergency, situations of national concern.
Reference re: Anti-Inflation Act, 1975, [1976] In the Preamble of the Anti-Inflation Act, the drafters used the term “matter of national concern” as an attempt to show that this piece of legislation is based on POGG. They chose these words because they wanted to tie it into the case law without making it seem like an emergency. If it is an emergency, it suggests a temporary nature while if it was a national concern, the government would argue the measures should be left in place for a longer period.
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I: Can the Anti-Inflation Act be justified under POGG either under the national concern branch or the national emergency branch? D: 7 out of the 9 justices decided that the legislation could be supported under the emergency power. 2 decided that it could not. 4 out of the 9 left the question open as to whether it can be supported under the national concern power 5 said that it could not be supported under this power. The court ends up rendering a decision based on emergency – how come?
Judges Laskin, Spence, Judson, Dickson (Laskin, an English speaker, allowed for a broader interpretation of the preamble of the act as he is attuned to the malleability of the language). deGrandpre, Beetz (Beetz, a Quebecker took the meaning of “national concern” literally as per most interpretations in the civil law. Also wants to contain feds for political reasons). Ritchie, Pigeon, Martland Emergency (B) Not a national concern Not emergency Not a national concern Emergency Emergency A National Concern Is a national concern Reasons need rational basis to show emergency/crisis (not explicit evidence)
They see there is not an emergency from the preamble of the Act – it does not expressly say there is an emergency. See the element of national concern as too broad; inflation infringes too much on the provincial power Need very clear evidence/urgent necessity to prove emergency. See the element of national concern as too broad; inflation infringes too much on the provincial power.
Reasons: There are number of arguments that have to be dealt with before it can be shown that there is an emergency. 1) In the preamble of the act it is never stated that an emergency exists all it says is reduction of inflation has become “a matter of serious national concern.”
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Majority does not put too much weight on the fact that an emergency was not explicitly declared. Majority reasons that in preamble they are saying there is an economic crisis that is bringing into peril the economic stability of the country and this constitutes an emergency. Dissent saying that the use of national emergency power enables Parliament to override provincial laws in potentially every field so it must be explicit when using the power. Beetz and de Grandpre point to the preamble – because the preamble of this Act says “matter of national concern” it is clear to them that it is not an emergency situation – if it was an emergency, the drafters would have used the word “emergency.” Comment: From this we see No federal parliament would be wise to draft a piece of emergency legislation without expressly referring to it as an “emergency.” 2) Rational Basis: Laskin says all you need to ask is if there is a rational basis for the legislation which is based on an emergency. Economists unsure amongst themselves if it was an emergency. (This in effect enlarges the federal power by setting a standard for justifying an emergency; some argue this case makes it easier for the feds to establish an emergency – the “rational basis” test is not a very high threshold). 3) The important question is if there is an emergency at the present time. Majority says that this was a political question. Laskin limits the question to “is there an emergency now?” The fact the provinces and the civil services were left out of the scheme (with the ability to op-in) does not mean it is not a crisis. Emergency or National Concern?
Emergency Not contemplated in preamble of Anti-Inflation Act Temporary measures Inflation WAS an emergency (7/9 judges) Federal govt can enact legislation in peacetime dealing with emergency power. Parliament has power to decide whether state of emergency crisis exists. Laskin, Spence, Judson, Dickson said you need only “rational basis” to declare emergency (sparsely defined: less than strict scrutiny, comes from US courts) Ritchie, Pigeon, Martland says you need clear expert evidence. National Concern Contemplated in preamble of Anti Inflation Act Can be extended for longer period of time Inflation not a national concern (5/9) – very close Why Inflation should NOT be seen as a national concern: 5 judges argue inflation is not a national concern b/c anything that affects the Can $ or GDP can affect inflation would give feds too much broad reaching power. Difficult to claim something is of “national concern” when it typically falls under s. 92 if they wanted it to be under fed control, it
Constitutional Law of Canada
would have been listed in one of the enumerated heads of power in s.91.
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The 4 judges who decided it was a national concern, examined it under POGG. Beetz (for 5 members of the Court): only matters that are sufficiently specific, distinct and indivisible qualify for national concern – inflation fails for being too diffuse and “totally lacking in specificity”
Ratio: When enacting emergency legislation under the emergency branch of POGG courts do not have to explicitly say that there is an emergency situation. As long as there is some support for the fact that there is an emergency that is good enough to invoke the national emergency branch of POGG. Courts cannot deliberate on the effectiveness of policy so long as legislature believed rationally that it would solve the problem that is good enough for courts. -First constitutional case with large use of extrinsic expert evidence. All 9 judges agree on the following: • The whole court would agree that the feds can, in peacetime, enact legislation based on emergency power, which would supercede the normal divisions of power. (either by rational connection – Laskin, clear evidence – Ritchie, or expressly stated in the preamble – Beetz). Parliament has some power to decide whether a state of emergency exists.
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The court diverged on the issue as to what proof you need to show that an emergency exists. the difficulty of defining what “national concern” is plays out in Zellerbach as well. Test for determining valid p.o.g.g power of Emergency legislation: 1. Crisis of serious national concern? 2. Is there a rational basis for the Parliament to conclude that an emergency exists? 3. Is the measure temporary? 4. Is the law rationally connected to the emergency?
The National Concern Doctrine after the Anti-Inflation Reference This branch, given a narrow/ambiguous scope in the Anti-Inflation reference, was elaborated in two cases: R. v. Hauser, and Schneider v. the Queen. Hauser: since narcotics were a “new problem which did not exist at the time of
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confederation”, and since it did not come within matters of a merely local or private nature, it fell within the “general residual power” in the same manner as aeronautics and radio. Schneider: The court, with specific reference to the national concern branch and the “provincial inability test”, held that Heroin abuse was not a matter falling within the POGG power: - “It is not a problem which is ‘beyond the power of the provinces to deal with.’” - “Failure by one province to provide treatment facilities will not endanger the interest in another province.” - “Nor can it be said, on the record, that heroin addiction has reached a state of emergency as will ground federal competence under residual power.” - Legislation can be divided: illegal trade in narcotics coming within the jurisdiction of the Parliament of Canada, and the treatment of addicts under provincial jurisdiction. R v. Crown Zellerbach Canada Ltd, SCC 1988 Facts: Crown Zellerbach Canada Ltd engaged in logging, dumped wood materials in lake, breach of federal Ocean Dumping Control Act. -Zellerbach claims that this is provincial water so any federal legislation regarding it is ultra vires. -Federal government tried to justify the legislation under national concern branch of POGG. -The Ocean Dumping Control Act only applies to marine water that is not international water - act clearly includes salt water but there is a question as to whether it can include BC's internal salt waters. Issue: Does the Ocean Dumping Control Act fall under the national concern branch of the federal POGG power? Decision: The court draws out four conclusions about the national concern branch of POGG. Le Dain (p306) - analytical approach for examining matters of national concern (it all comes together in paras. 3 and 4: 1) The national concern doctrine is separate and distinct from the national emergency doctrine of POGG. The emergency branch is a temporary power and the national concern branch is permanent. 2) National concern doctrine applies to both new matters which did not exist at confederation and to matters which, although
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originally matters of a local nature, have since, in the absence of national emergency become matters of national concern. 3) National concern requires singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and it makes sense to deal with it on a federal level. 4) To determine if a matter has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern consider the provincial inability test: what would be the effect on extra provincial (national) interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter? Majority: Marine pollution is a matter of national concern -Provincial saltwater and territorial water has the required degree of singleness, distinctiveness, and indivisibility to distinguish them from matters of provincial concern since a) it is hard to visually ascertain the boundary between territorial sea and internal marine waters (indivisibility) and b) there are differences between the composition and action of marine waters and fresh waters ascertainable and reasonable limits exist on the impact of federal legislation on provincial jurisdiction. Dissent: Giving the federal government jurisdiction over inland waters sets a bad precedent. Argues we need to draw the line to prevent the overreaching of federal control. It is exactly because factors affecting pollution are so strongly interconnected that giving feds jurisdiction here is dangerous: a whole host of other issues are known to affect pollution (deposits from the air, soil etc); their regulation may in the future fall under federal jurisdiction this may be an overly broad expansion of federal powers. Ryder’s Comments: POGG cases are very few, so it is fair to ask: “does this really have that big an impact on provincial autonomy?” However, POGG’s impact on the provincial jurisdiction over ocean pollution may mean that there will be more concurrency and potential for federal paramountcy. As such, provincial laws that deal exclusively with salt water pollution may be declared UV; however, provincial laws that deal with all the water in the province may be IV due to the necessarily incidental doctrine. Haigh’s comments: This is a really unworkable test gives the feds all kinds of room to create legislation under federal powers that they would not normally have. However, feds have been fairly responsible after this case, and in cases where they could have enacted POGG legislation, have refrained from doing so. The 1988 Court appreciates Canada’s international obligations in reducing pollution: by giving the federal government more power on this issue, the court is giving the government the ability to uphold its international obligations. Friends of Old Man River Society v. Canada (Minister of Transport), 1992
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F: The Environmental Assessment and Review Process Guidelines state that if a proposal could have serious adverse environmental effects, there must be public review by an environmental assessment officer. Alberta wants to build a dam on Old Man River, so they claim the legislation oversteps federal jurisdiction. I: Can this federal environmental legislation be justified under the national concern branch of POGG? D: No, it cannot be justified under POGG. Court ruled environmental protection is not a federal head of power and does not have the requisite distinctiveness to meet the test under the national concern doctrine of POGG. “The environment…encompasses the physical, economic and social environment touching several of the heads of power assigned to the respective levels of government" Need to reconcile with Zellerbach; in Zellerbach, marine pollution is characterized as a national concern because it is predominantly extra provincial and international. Ratio: Environmental protection is not a federal head of power and does not have the requisite distinctiveness to meet the test under the national concern doctrine. However, marine pollution is characterized as a national concern because it is predominantly extra provincial and international (from Zellerbach). R v. Hydro-Quebec 1997 SCC Facts: Canadian Environmental Protection Act (CEPA) – life-cycle (“cradle to grave”) regulation of toxic substances Issue: Is the regulation of toxic substances a valid exercise of federal jurisdiction? Decision: The court does not undertake a POGG national concern analysis which, it argues, is controversial and raises issues that go to the heart of the federal structure of our constitution. (Ryder: CEPA has a really broad definition of “toxic” – this runs counter to the singleness, distinctiveness and indivisibility criteria in Zellerbach.) Instead, the Majority holds that CEPA is a valid exercise of the federal Criminal Law head of power – this analysis is preferred since the court argues that the criminal law power is not as controversial/divisive as the national concern doctrine
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Federal Powers over Economic Regulation – s. 91(2)
After 1960:
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courts seemed more willing to apply the necessarily incidental doctrine in relation to the trade and commerce power, thus allowing the federal government to regulate some intraprovincial transactions as part of a scheme directed at the regulation of interprovincial or international trade: The Queen v. Klassen and Caloil Inc. v. AG Canada The Supreme Court applied the general regulation of trade doctrine to uphold federal competition legislation: GM v. CNL.
Citizen's Insurance Company v Parsons, (1881) SCC & P.C – page 90 Facts: Ontario enacted legislation regulating insurance. Insurance company refused to pay Parson’s claim because he failed to disclosed all relevant info. Parson sued to get money on the basis of Ontario Act – says you don’t have to disclose all relevant info. Insurance company claimed the Act was ultra vires. Issue: Is the Ontario Insurance Act ultra vires the province? Does it fall under the head of trade and commerce (federal), or property and civil rights (provincial)? Decision: the provincial act was not ultra vires. The Act regulated contracts and contracts fell under the head of property and civil rights. It did not come under the federal head of power trade and commerce because it was not 1) political arrangements in regard to trade requiring the sanction of parliament, 2) regulation of trade in matters of interprovincial concern, or 3) general regulation of trade effecting whole dominion. The Act was merely the regulation of one industry in one province; therefore, not federal jurisdiction under trade and commerce. Ratio: Under civil and property rights the provinces have the right to legislate over contracts or particular businesses within the province. The federal trade and commerce power only deals with: 1) political arrangements in regard to trade requiring the sanction of parliament 2) regulation of trade in matters of interprovincial concern or 3) general regulation of trade effecting whole dominion (GRT). Ryder condensed this to 2 branches: 1) Extraprovincial (between provinces and international) trade (ET) and 2) General Regulation of Trade (affecting the whole country) Case laid out an ‘exclusivist’ approach in defining the limit of federal power over ‘Trade & Commerce’ and provincial power over ‘Property & Civil Rights’. o Assigned narrow scope to federal power to preserve integrity of provincial power
The Queen v. Klassen (1960) – page 357
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Facts: s. 16(1) of the Canadian Wheat Board Act outlined certain compulsory procedures and guidelines re: grain elevators. Klassen, a grain farmer involved in intraprovincial grain trade failed to respect the federal guidelines and was charged under the Act. Issue: Is s.16(1) of the Act a valid exercise of federal powers over Economic Regulation? Decision: the Act’s main legislative purpose is the regulation of trade and commerce with respect to interprovincial and international export of grains. S.16(1) is simply the machinery by which the policy and general purposes and provisions of the Act are administered and enforced. Even though Klassen was not directly involved in interprovincial or international grain trade and all his trade was intraprovincial, s.16(1) still applies to him since one of the main purposes of the Act was equality of delivery opportunity (i.e. the government’s interference with individuals’ rights to trade grain freely on the market must affect all equally; it must not be allowed that some traders gain unfair advantages by not respecting the Act simply because they were fortunate enough to achieve access to local grain markets)
Ratio: The Act is in pith and substance in relation to trade and commerce (federal heads of power) and merely “affects” property and civil rights (provincial heads of power) incidentally. Caloil Inc. v. AG Canada - SCC (1971) – page 361 Facts: In an attempt to help out Canadian oil producers, the federal government passed legislation limiting “any gasoline” from being imported into certain areas of the country without a license (this is legislation #1) Caloil lost its license and sued, arguing that legislation #1 was unconstitutional as it invaded provincial jurisdiction over property and civil rights. The courts agreed with this claim. As a response, the federal government passed legislation #2 which limited the scope of the restrictions to “imported oil”. Caloil sued again on the basis that legislation #2 also invaded provincial jurisdiction Decision: SCC decided unanimously that legislation #2 was intra vires i.e. a valid exercise of federal power re: international trade regulation. Analysis: SCC distinguished legislation #1 from legislation #2: #1 had too broad restrictions (“any gasoline”) while #2 was explicitly limited in scope to imported oil. The true character of the enactment is an incident in the administration of an extra-provincial marketing scheme. Interference with local powers is an integral part of the control of imports for extra-provincial trade regulation and as such, it is intra vires Parliament. Ratio: federal government can assume a regulatory role over trade in the provinces only if such regulation is “necessary” to the effective regulation of interprovincial or
Constitutional Law of Canada international trade. (There is still a requirement that goods move across provincial borders – THIS DID NOT HAPPEN IN KLASSEN, THUS KLASSEN WAS FUDGED) Note on Dominion Stores Ltd. v. The Queen – page 363
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Facts: Federal and provincial Acts set out differing standards for produce quality labels: “Canada Extra Fancy” quality could not be claimed on bruised apples, because the fed. gov owns that label -It was non mandatory to put this label on, but Dominion did anyways and was charged Issue: is the federal Act ultra vires? Decision: close (5 to 4): the Federal Act was ultra vires. Analysis: Majority - the Federal Act was ultra vires since it tried to regulate an entirely intraprovincial matter under the guise of international and interprovincial trade regulation. Allowing both the federal and provincial laws to regulate produce labeling would create wasteful overlapping or double-decking of administration or enforcement – this would defeat the purpose of the Constitution. Minority: the Federal Act should be upheld. The federal standard is already compulsory at the interprovincial and international trade level, so the voluntary compliance of dealers at the local level would be convenient for both dealers and consumers. Note on Labatt Breweries of Canada Ltd. v. AG Canada Facts: federal Food and Drugs Act regulated the content of a variety of food and drug products and set out product labeling guidelines. Labatt marketed its “Special Lite Beer” which exceeded the maximum allowable alcohol content of “light beers” according to the Act. Labatt challenged the validity of the federal Act. The federal argument argued it relied on the trade and commerce power, the criminal law power and POGG power. Issue: is the Act ultra vires? Decision: the Act is ultra vires as far as it applies to malt liquors and light beers. Analysis: Trade and Commerce Power: the Act failed the first branch of Parsons (ET) since breweries are a local intraprovincial matter. The Act also failed the second branch of Parsons (GRT): the regulation of a single trade or industry is clearly not of general national concern. “Neither national
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ownership of a trade or undertaking or even national advertising of its products will alone suffice to authorize the imposition of federal trade and commerce legislation”. The Food and Drugs Act, though it covered a substantial portion of Canadian economic activity, was seen as a scheme regulating “one industry or trade at a time, by a varying array of regulations or trade codes applicable to each individual sector” therefore, the Act is not a “regulation of trade and commerce in the sweeping general sense contemplated in Parsons”. A federal “labeling power” is possible (see Canada Standards mentioned in Dominion Stores on page 363 bottom), but not in this case since labeling legislation regulates revelation of content and conditions of use and not standards of production or marketing. Criminal Law Power: The impugned provision was characterized by Estey J as involving detailed regulation of the brewing industry and as such was not directed at the protection of health or the prevention of deception. POGG Power: Estey J thought there was no matter of national concern. AG Canada v. Canadian National Transportation Dickson J: Some criteria central to GRT (General trade power – second branch of 91(2) and Parsons): -GRT cannot lead to regulation of a single trade or business in the province since this is not a question of general interest throughout the Dominion and goes against ---Constitutional local autonomy -- This is the case even if federal enactments purport to carry out such regulation in the same way in all the provinces. -GRT does apply when what is at issue is general legislation aimed at the economy as a single integrated national unit rather than as a collection of separate local enterprises -Such legislation cannot be practically or constitutionally enacted by individual or groups of provinces. The focus of legislation validated by GRT is on the general: though it may touch on provincial property and civil rights, in pith and substance addresses questions of general interest throughout the Dominion. -There is a clear line between measures validly directed at a general regulation of the national economy and those merely aimed at centralized control over a large number of economic entities. Labatt was close to this line. General Motors of Canada Ltd. v. City National Leasing (1989) - page 371 <SEE ABOVE FOR FACTS>
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Analysis: Steps to take when a constitutional challenge focuses on a single provision of an Act/Scheme: 1) Is the Act as a whole valid? (if NO, statute will be struck down) 2) If so, is the offending provision, viewed in isolation, valid? (in P/S, is it within the jurisdiction of enacting government?) 3) If not, to what degree does it intrude on the other level of government’s jurisdiction? 4) Is the offending provision sufficiently integrated within the valid scheme, such 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). Does 31.1 of the CIA encroach on Provincial Powers? Yes 1) Is the act as a whole valid? (Assess 5 GRT factors) GRT factors (pages 373-374) a) regulatory scheme? b) oversight of regulatory agency ? c) concerned with regulation of trade as a whole; must not be concerned with a particular industry or collection of industries? (as in Parsons; Labatt) d) legislation is beyond provincial jurisdiction? e) national scheme necessary to avoid potential negative consequences that one province’s approach could have elsewhere in the country?
a) Is there a regulatory scheme in the CIA? Yes Regulatory scheme factors: - elucidation of prohibited conduct - creation of an investigatory procedure - establishment of a remedial mechanism b) is there oversight of a regulatory agency? Yes - Director of Investigation and Research - Restrictive Trade Practices Commission c) concerned with regulation of trade as a whole? Yes - Scheme of regulation is national in scope - Regulation of trade in general and not a particular industry or commodity - General applicability (this distinguishes CIA from the Act in Labatt) d) legislation is beyond provincial jurisdiction? Yes - deleterious effects of anti-competitive behavior transcend provincial boundaries - competition is not only local concern, but of crucial importance for national economy - provinces jointly or severally would be constitutionally incapable of passing effective legislation e) national scheme is necessary - Hogg article - need for national regulation of competition - Study by Safarian - National interest
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Therefore, CIA is intra vires Parliament (Act is valid - Step 1 of 4 of the test above)
Federal Powers over Criminal Law – s. 91(27)
-To be valid criminal legislation the law has to have: 1. The Formal requirement – prohibition and penalty 2. Substantive Element – Purpose – the law has to have a public purpose – pursue the elimination of a serious social evil Ref re Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference) Purpose and Form Test: Purpose (the Substantive element): every criminal law provision must have a public purpose dealing with public peace, order, security, and health (pursuing to eliminate a serious anti-social behavior). Form (the formal element): it will be in the form of penal consequences which are enforced by the courts. Decision: In the correct circumstances, criminal power can be applied to issues of commerce. Apply the Purpose and Form Test to Margarine passed the formal element but failed the substantive element (since prohibition of margarine was held to have no public purpose in the sense outlined above). RJR MacDonald Inc. v. Canada (Attorney General) (1995) 7-2 ruling that the Tobacco Products Control Act is a valid exercise of s.91(27) (much of the Act was struck down on Charter grounds) RJR: “not part of the traditional areas of criminal law” Court: see the living tree – you can expand to include new areas RJR: if the consumption, sale, manufacturing is legal, why is advertising criminal? Court: bad experience with prohibition (driving underground etc), it is open to Parliament to target marketing as a way to reduce cigarette smoking RJR: there are exemptions in these criminal prohibitions (if something is truly criminal, or social evil then no such exceptions should exist) Court: Parliament is entitled to make such exemptions as an exercise in defining and outlining the limits of the prohibition
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How far does criminal law go? RJR and Hydro Quebec push the boundary of criminal law. It used to be thought you could only focus on the activity or the substance – this case says parliament can make the choice – they can use other regulatory solutions that prohibit certain aspects related to that activity – that is a valid exercise of the criminal law power. Facts: Restrictions on advertising and sale of cigarettes - requirement of health warnings, restrictions on who they can market to and where they can market. (When thinking of the validity of a federal provision, think of it in terms of: form (prohibition and penalties) and purpose (prohibition of a social evil as illustrated by Rand J in Margarine reference). Majority: Criminal law can embrace new matters such as cigarettes. Control of an ‘evil’ does not necessitate an outright ban of the substance, but, rather control of ancillary measures (advertising) through criminal law power is acceptable. The form (penalty) and purpose (smoking is bad) test still applies to the ‘evil.’ Presence of exceptions (i.e. is legal to sell smokes as long as there are warning labels) didn’t preclude finding that legislation was criminal law. Dissent: advertising is too far removed from the injurious or undesirable effects of tobacco use to constitute a valid exercise of criminal law power. Asks why they didn’t ban tobacco itself. They argue there should not be any exceptions if it is truly criminal law. Hydro Quebec (1997) (5-4 ruling upholding Part II of CEPA as a valid exercise of s.91(27) – most important of the trilogy – It is the most expansive in terms of its definition of Criminal Law powers) Facts: D charged w/ violating interim order under the Canadian Environmental Protection Act, (established process of regulating use of toxic substances). Under CEPA, where Ministers believe that immediate action is necessary with respect to substance, s. 35 allows for making of ‘interim orders’ w/out going though usual procedure. Hydro Quebec opposed interim order against them which circumvented normal procedure. Page 401: “may have an immediate or long-term harmful effect” this is a very broad definition – gives rise to division of powers concerns (in every other provision that the feds sought to justify under the criminal law power (margarine, RJR), the provision was set out in the statute – here, you can read the statute and you still may not know what is prohibited because it is up to the minister to decide what is prohibited). Does this meet the formal definition of criminal law? There are no prohibitions, only the power to enact prohibitions given to cabinet; this is a scheme that allows Parliament to assess the hazards and enact regulations re: manufacturing, use, disposal of toxic materials; this looks very much like a regulatory act, not a criminal act
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Issue: Can environmental issues be regulated through the criminal law power? Majority: Permits criminal law power use based on regulatory discretion rather than explicit provisions/prohibitions Broad wording is unavoidable due to the breadth and complexity of environmental protection majority allows the criminal law power to apply even where the actual substance which causes the offense is subject to an administrative decision requirements of PATA case (which were thought to require that criminal law restrictions be based on explicit and clear provision) were not as strict as formerly thought – RELAXING THE FORMAL REQUIREMENTS Majority (5-4): Pith and Substance fits criminal law notwithstanding the apparently regulatory nature which, according to the majority, is only an introduction to the criminal “meat” to follow in the prohibitions and is therefore valid criminal law. Dissent: sticks to PATA case (if Pith and substance is prohibitory rather than regulatory, then it is valid under the criminal law power). This is regulatory and should not be considered valid for that reason. Also, s.34(6) of the Act exempts provinces that already have equivalent regulations in place this suggests that the Act is regulatory in nature, since feds cannot delegate their criminal law power to the provinces. General Rule: legislation with admin/regulatory features directed at defining the nature and scope of prohibitions and penalties is constitutionally valid exercise of federal criminal law power as long as the prohibitions and penalties are the P&S of legislation A regulatory scheme with a large measure of administrative discretion satisfies the formal requirements of criminal law Ryder agrees with the dissent (against this very broad expansion of criminal law powers) After these two cases: Here, the majority decision from Crown Zellerbach is cut down and limited to a very specific area of pollution. After the Hydro case, the court seems to be saying that the court should use criminal law power to deal with the environment and not POGG
Reference re Firearms Act (1995) Facts: Alberta govt argued that federal gun control legislation (which sought to regulate but not ban firearms through complex regulatory gun registry system) was really an attempt to regulate personal property, which falls under the provincial head of power
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-Here, the feds were applying RJR and Hydro Quebec to regulate firearms: they took the notion that you do not need an outright ban but can ban ancillary aspects from RJR and they took the notion that you can have a regulatory scheme under criminal law from Hydro Quebec case. Decision: Alberta failed and law was found to be good criminal law. Reasons: the Act is in pith and substance directed to enhance public safety through prohibitions and penalties, meaning it is valid criminal law -While the Act also has regulatory aspects, they are secondary to its primary criminal law purpose -The intrusion of the law into the provincial jurisdiction over property and civil rights is not so excessive as to upset the balance of federalism Criminal purpose: gun control has traditionally been valid criminal law since guns are dangerous and pose a risk to public safety Criminal form: prohibitions and penalties (court focused on Criminal Code prohibitions and thus avoided a “necessarily incidental” analysis – saying it’s well enough integrated into the law as a whole to be necessary incidental, but they didn’t need to do this) Complex regulatory nature of the Act: just because it is complex does not mean it cannot be criminal (other highly complex laws are valid exercises of criminal law power – Food and Drugs Act, CEPA etc) no undue discretion given to the chief firearms officer or the Registrar unlike in Hydro-Québec, the offences are not defined by an administrative body Gun control is distinguished from provincial regulatory schemes (cars, land titles etc) While cars are also dangerous, guns pose a pressing safety risk in many if not all of their functions. Unlike cars, guns are often used in violent crime, domestic violence etc The Act does not regulate guns as items of property (i.e. it does not attempt to regulate insurance or permissible locations of use); it only addresses dangerous aspects of guns and the need to reduce misuse. An appropriate balance of power must be maintained between federal and provincial governments the question is not whether this balance is necessary (it is beyond debate that it is), but whether the Act upsets it the Act does not upset this balance: it does not interfere with provincial property and civil rights regulation of guns and it does not give the federal government jurisdiction over a new field since gun control has always subject to federal legislation
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Summing up the federal criminal law power RJR – related activities can be prevented under criminal law power as long as it is in the service of prohibiting harmful activity Hydro Quebec – harm to the environment, not harm to a person and not harm to property, is a valid purpose of criminal law as a social evil. The prohibition with penalty can be read quite widely to include prohibitions that are determined by the exercise of administrative discretion Hydro Quebec and Firearms Reference – show that complicated administrative regimes where the decision making is carried out by the executive or administrative officials is also valid criminal law
Provincial Power to Regulate Morality and Public Order – 92(14)
There are three ways in which provincial interests in regulating morality and public order are recognized:
1. Much of the federal Criminal Code is provincially enforced because: 92(14) gives
provincial legislatures jurisdiction over the administration of justice in the province (including provincial policing) and also because of the federal delegation to the provinces of the power to prosecute Criminal Code offences. 2. The federal government, through conditional legislation, has built in flexibility to its criminal laws allowing some such laws to operate only to the extent that they do not conflict with provincial laws (ex: Lord’s Day Act) 3. Judicial recognition of concurrent provincial jurisdiction in matters that may also be the subject of criminal law this is the type of tension explored in McNeil, Westendorp and Morgentaler i.e. should concurrency be allowed or should the federal criminal law invalidate the provincial legislation? Note: s.92(15) allows the provinces to enact penal sanctions, but the power is understood as an “ancillary” one, authorizing the use of penal sanctions to enforce provincial regulatory schemes that are validly anchored elsewhere in the s.92 list of provincial powers. This means a province cannot enact penal sanctions on the basis of s.92(15) alone. A province needs to justify the enactment of penal sanctions as an enforcement mechanism to a law which is in pith and substance based on a valid provincial head of power. -e.g. If a province wanted to enforce a parking by-law, they could do that through s.92(15) – allowed to enforce laws with penal sanctions as long as it is something that they are allowed to enforce in the first place (in this case, parking is a municipal matter)
Constitutional Law of Canada -Cannot start with 92(15), have to use sanctions they are allowed to made Re Nova Scotia Board of Censors v. McNeil , 1978 SCC
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Facts: D as private citizen sought declaration that provision of provincial Theatres and Amusement Act that required that all films be submitted to provincial censor board prior to their exhibition and the unfettered power of board to permit/prohibit showing of film Decision: 5:4 decision upholding provincial legislation Majority (Ritchie):
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Provision is preventative and regulatory rather than penal and therefore acceptable under provincial head of power – province can regulate local trade (intraprovincial) and can set its own standards; Province can entrench on areas of morality as long as pith and substance is regulatory. Morality and criminality are far from co-extensive provincial legislation which establishes and enforces a local standard of morality does not necessarily invade the federal criminal law power.
(Separation of powers and respect for federalism underlie the majority judgment) Dissent (Laskin): Province is intruding on federal criminal jurisdiction by masking a criminal provision in a regulatory scheme; morality is a federal jurisdiction. (Centralist tendencies underlie the minority judgment) Notes: In McNeil, a certain provision of the Act was found, even by the majority, to be invalid since it was too similar in its wording to the Criminal Code provision which made it an offence to publicly exhibit an indecent show. Ritchie argued that the provision is invalid since it authorized the censor board to define what constituted a Criminal Code offence -Just acknowledging that they know where to draw the line Bedard v. Dawson (1923) – page 420 Issue: Validity of Quebec legislation providing for the closure of premises used as “disorderly houses” (which were mostly premises where Criminal Code convictions for prostitution and gambling took place). Decision: SCC upheld the provincial legislation Arguments in favor of upholding the provincial law:
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The law was argued to be “preventative” not “penal” (similar to McNeil) the law was in relation to property use (analogous to control of nuisance) provinces can legislate with respect to the civil consequences of crime (for example provincial highway traffic legislation provides for driver’s license suspension following conviction for certain Criminal Code offences)
AG Canada v. Dupond (1978) Facts: in 1969, Montreal had a series of public demonstrations which led to violence, vandalism and looting. Shortly after, City of Montreal passed a bylaw prohibiting gatherings that endangered tranquility, safety, peace or public order. The law gave the city’s executive committee the power to prohibit gatherings if there were reasonable grounds to believe they would endanger safety, peace or public order. Fines and imprisonment were available as punishment. Issue: is the provincial law valid? Decision: the provincial law is valid. Reasons: the provincial law is a valid exercise of provincial jurisdiction over the regulation of the municipal public domain (a local matter). The majority (Beetz J) used the preventive nature of the provincial law to distinguish it from the Criminal Code provisions dealing with breach of the peace. Dissent (Laskin): the provincial law is an ultra vires attempt to reinforce the criminal law. The provincial law is a “mini-criminal code” dealing with apprehended breach of the peace, apprehended violence and the maintenance of public order. The provincial law could ban even peaceful gatherings. Since Laskin believed that the criminal law should be enforced against violators and not against innocents, he strongly dissented. Notes: Laskin’s dissents from McNeil and Dupond reflect his concern for the protection of civil liberties through the federal criminal power – the criminal law power provides a lot of procedural protections (beyond a reasonable doubt, etc….) -But maybe the Charter eliminated the need for indirectly protecting civil liberties through federalism – Now people can use Charter to challenge these provincial laws Westendorp v. Queen, 1983 SCC – page 421 Facts: City of Calgary passes by-laws dealing with prostitutes congregating and causing embarrassment (similar to Nova Scotia’s attempt to stop abortion in Morgentaler). Decision: This is a clear attempt to punish prostitution in a criminal fashion; this is ultra vires the municipal government. Prostitution does not relate to any head of power under s. 92.
Constitutional Law of Canada Majority: the pith and substance of the law is criminal. S.6 of this act is not merely regulating a local matter (public nuisance) since it seems very arbitrarily chosen (not related in subject-matter or in the scale of penalties with the rest of the by-law). Legislative history showed that the province complained that the Criminal Code provisions are not effective and then introduced the legislation – this shows that the province was trying to intrude on the federal government’s criminal law powers. Note: if province wanted to control prostitution, the law would have to be construed effectively as an attempt to control the streets – this was not the case here. Goldwax v. City of Montreal (1984) – page 423 This was a case similar to Westendorp where the municipality attempted to introduce colorable legislation purportedly against public nuisance, but actually aimed at criminalizing prostitution. The provincial law was again found ultra vires. Rio Hotel Ltd. V New Brunswick (Liquor Licensing Board) (1987) The Court held that, despite overlapping with valid federal law, the provincial law that restricted nudity in bars was constitutionally valid goes against Westendorp
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Facts: The NB Liquor Control Act required that all liquor licenses be accompanied by an entertainment license that limited the degree of nudity allowed within the establishments. Issue: Rio Hotel decided to challenge the constitutionality of the law on the grounds that it related to public morality, a matter of federal criminal law. Decision: Dickson characterized the law as regulating the type of entertainment allowed to promote alcohol sales (regulation of an intraprovincial matter), and did not characterize it as an issue of morality -The matter was seen as both of a local nature and relating to property and civil rights. Though there are provisions within the Criminal Code dealing with nudity, they do not conflict with the provincial law one can comply with both. Furthermore, the provincial law did not possess any penal consequences -Dickson also distinguished Westendorp: in Westendorp, the impugned section was clearly not integrated within the rest of the by-law (in either subject-matter or scale of penalties) while the restrictions in this case were seen as part of a comprehensive scheme regulating the sale of liquor in New Brunswick and as such were not a colorable intrusion upon a federal head of jurisdiction Note: Rio is an example of the general tendency of courts to allow concurrency (using double aspect doctrine) of provincial regulation of morality and federal criminal law.
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Ryder’s example: The Dog Owners’ Liability Act: is it a provincially valid power (street safety with enforcement/punishment provisions attached) or is it a federal power (prohibition with penalty to combat a social evil)? It is both and therefore, concurrency makes sense
Provincial Commissions of Inquiry (PCI) and the Criminal Law Power – page 425 The criminal law affords the accused procedural protections. Provincial Commissions of Inquiry (in the process of examining conduct that has also given rise to a criminal investigation or charges) can compel testimony (with the restriction that any evidence given cannot be used against the person giving that evidence in any subsequent proceedings) The courts see provincial commissions of inquiry as having a purpose different from a criminal investigation i.e. not whether a specific crime was committed, but determining what the extent and causes of a problem are so that they can be prevented in the future. As such, courts often recognize a double aspect, allowing both criminal investigations and PCIs to run side by side. An exception from this tendency towards double aspect is found in Starr v. Houlden where the PCI was found to be ultra vires the province: PCI had a narrow focus (only two named individuals) and incorporated/used language from Criminal Code provisions SCC found this an intrusion on federal criminal law and criminal procedure powers
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PART 2: Aboriginal Peoples and the Constitution
Common Law Background -Historically, aboriginals were treated as nations by the British, because of their strategic military importance
R v. Sioui (1990) SCC - page 513 Facts: members of Huron nation charged with cutting trees in provincial park contrary to provincial Quebec regulations; claimed they were practicing ancestral customs and religious rights guaranteed by a treaty with the British in 1760. Decision: the Huron entered into a treaty to protect religious liberties and customs, treaty is still valid, the acts protected by its terms were not incompatible with Crown suzerainty and that the treaty provided an effective defense against the acts for which the Huron were charged.
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Analysis: a review of the historical record indicates both the French and the British treated Native Nations as sovereign and sought to enter into treaties with them since they were valuable allies. Chippewas of the Sarnia v. Canada (2001) Ont. CA – page 517 The Court outlines the historical nature of Crown – First Nations relationship. o Dealings between Crown and First Nations involved relations between sovereign nations to be governed by agreements of treaties made by the Crown and First Nations. These relations were an imperial concern, administered primarily through royal prerogative, policies formulated in England and Indian affairs were no concern of colonial legislatures o Crown, mainly for military reasons, sought First Nation support. It did so by addressing Native grievances Royal Proclamation of 1763: recognized First Nations had rights in their lands established imperial control over settlement on Indian lands whether those lands were within or beyond the boundaries of the established British colonies in North America prohibited private purchase of Indian lands and required that alienation of Indian rights in their lands be by way of surrender to the Crown established a process by which surrenders of Indian land would be made to the Crown. The surrender process accepted that Indian rights in their lands were collective and not individual.
p. 519- Canada, Royal Commission on Aboriginal Peoples, Report, vol. 2, Restructuring the Relationship Connelly v. Woolrich (1867), Quebec SC Facts: White guy marries Native woman under Cree Law on Cree Land. Later moved away married white woman. Upon father’s death, son from first marriage brings claim that under Cree Law he is entitled to half of father's property. Issue: Was the Cree marriage valid? Decision: The court had no hesitation in holding that the Indian political and territorial rights, laws, and usages remained in full force in the northwest at the relevant time. This decision portrays Aboriginal peoples as autonomous nations living within the protection of the Crown but retaining their rights, political organizations and common laws. Number of lessons can be drawn from this case: 1) The sources of law and authority in Canada are more diverse than is sometimes assumed. 2) In earlier times, the history of Canada often featured close and relatively harmonious relations between Aboriginal peoples and newcomers. 3) The decision in Connolly v. Woolrich stands in contrast, then, to the common impression that Aboriginal peoples do not have any general right to govern
Constitutional Law of Canada themselves. However, this view overlooks important features of our legal system: The laws of Canada spring from a great variety of sources, written and unwritten, statutory and customary.
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• In 1876 the Indian Act, attempted to change the Aboriginal conceptions of land, governance, inheritance, family and obligation. It virtually ignored Aboriginal traditions by trying to replace them with Victorian values and thus departed from the more respectful relationship created in the 100 year period prior to confederation. • In Calder v. AG BC the SCC recognized that Aboriginal title was justifiable under the common law. This case arose because unlike the situation in Ontario, treaties had not been signed in B.C. As a result the Nisga’s claimed that they continued to enjoy aboriginal title in absence of such surrenders. While the judges were evenly split on the major issue of whether the Nisga’a Aboriginal title had been extinguished by the general land enactments of BC, they did agree that Aboriginal title existed independently of a “treaty, executive order or legislative enactment”. Sources of Aboriginal Rights Prior to 1982: 1) Royal Proclamation 1763: Assertion of British Sovereignty in North America. The proclamation established that unsettled lands in Quebec were reserved for aboriginal people. The proclamation also recognized the tile of Aboriginal people. It was set out that British settlers could not acquire the lands of Aboriginal peoples and that Aboriginal land could only be ceded to the crown. 2) Common Law Aboriginal Title: Recognized in the St. Catherine’s Milling case 1888 where it was established that Aboriginal peoples had a personal and usufructuary right to the lands which they traditionally occupied. It was held that aboriginal title existed as a burden on the underlying crown estate in all land. 3) Treaties with the Crown: Generally, treaties provided for the surrender of traditional lands in exchange for some form of compensation. Treaties were generally interpreted by courts against the interests of the Aboriginal people. Treaties: Now read as documents between equals. Similar to International treaties. Must think of treaties as a solemn exchange of promises between the Crown and Indian Nations (sacred agreement). Agreement where the ‘honour’ of the Crown is at stake Must assume that the Crown will ALWAYS FULFILL its obligations committed to under a treaty. Treaties are read IN FAVOUR of the aboriginal band i.e., any restrictions or extinguishments of rights are for the Crown to prove.
Guerin v. The Queen (1984) SCC – page 524
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- The beginning of modern Aboriginal rights in Canada - Took place before the 1982 Constitution (even though the decision came out in 1984). Facts: The Indian Act said that a band must surrender its land to the Crown in order for the Crown to lease it to the public. The Musqueam Band wanted the land to be leased out and a golf course built. They surrendered the land to the Crown and trusted the Crown to negotiate the land for them (they had to because of the Act). The agent for the Crown negotiated in bad faith (since he couldn’t find a lessee to lease the land to at a good price) and ended up leasing at a much lower price per acre than the Aboriginals wanted, but didn’t tell them. The agent then signed the lease at a lower rate and the Musqueam band was not told what was going on. They didn’t realize they were being ripped off until much later. Dickson explains the nature of the relationship between the Crown and the Aboriginals and its fiduciary duty: • Sui generis (unique) nature of the interest o Sources of Aboriginal title: Royal Proclamation and treaties. It all stems from the fact that the Aboriginals were here first and the settlers just took away some of their rights that they shouldn’t have. The Crown has a fiduciary obligation to the Aboriginal population o (Fiduciary means that you owe it to another to act in their best interest, with loyalty and in a certain way – e.g. lawyer-client privilege. It’s the highest obligation that civil obligation has invented) o A fiduciary aspect can arise by statute, agreement, unilateral undertaking. o The Aboriginal-Crown relationship arises by virtue of the Indian Act and by historical factors (they were here first, the Crown has taken on role of acting as parent to Aboriginals) o The Indians’ interest in lands does not in and of itself give rise to a fiduciary relationship; this relationship is created by the additional fact that the Indian interest in the land is inalienable except upon surrender to the Crown o Part of the duty in this particular case, it is the honor of the Crown that is at stake. Even if the Crown’s original price was too unreasonably high, you don’t just go and negotiate a dif rate. You go back and say that you can’t get a deal at that rate and get their consent to go for a lower price. You can’t act unilaterally without having their best interests at heart. o The damages for a breach of a fiduciary duty are much greater than they otherwise would have been.
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The Existence of Indian Title: • In Calder the court recognized aboriginal title as a legal right derived from the
Constitutional Law of Canada Indians’ historic occupation and possession of tribal lands. • Assumption implicit in Calder that Indian title is an independent legal right, which, although recognized by the Royal proclamation of 1763, nonetheless predates it… Their interest in their lands is a pre-existing legal right not created by the Royal Proclamation or the Indian Act or by any other executive order or legislative provision.
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The sui generis interest which the Indians have in the land is personal in the sense that it cannot be transferred to a grantee, but it is also true that the interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering Indians. These two aspects of Indian title go together since the Crown’s original purpose in declaring the Indians’ interest to be alienable otherwise then to the Crown was to facilitate the Crown’s ability to represent the Indians in dealing with Third parties. Any description of Indian title, which goes beyond these two features, is both unnecessary and potentially misleading.
Ratio: When a native band surrenders land to the Crown, a fiduciary relationship is created and the Crown has a duty to represent the best interests of the Band in its dealings with respect to the land. -THIS IS THE MOST IMPORTANT PART OF THE CASE Notes: One of the dangers of saying that there’s this fiduciary duty, is that it perpetuates the idea that the Crown has taken on a paternalistic role. BUT, Haigh thinks Dickson would acknowledge this, but argue that he only wants to take the stuff from fiduciary duties that make sense in this instance. Also, a fiduciary relationship does not necessarily indicate a paternalistic relationship. Sometimes the person owing the fiduciary is less powerful than the beneficiary (like in the cases of corporations). In this case, the fiduciary duty is not meant to keep the Aboriginals down, always at the mercy of the Crown
SECTION 35 – THE CONSTITUTIONAL ENTRECHMENT OF ABORIGINAL RIGHTS
-s. 35(1) recognizes pre-existing rights of aboriginals – controversy of what ‘existing’ means, and what ‘rights’ means
R v. Sparrow [1990] SCR – page 532
Facts: Sparrow fishing with a net longer than which was allowed under federal regulations. Claimed this law violated his pre-existing native right to fish for food.
Constitutional Law of Canada Issue: Does legislation infringe existing native rights under section 35(1)? (Court elucidates the nature and scope of s. 35 rights): TEST FOR EXISTING RIGHTS 1. What does "Existing" mean? The right must exist when the constitutional act of 1982 came into effect. Court rejects the view that the right must remain frozen. Any attempt to extinguish rights prior to 1982 must have been clear and plain. Regulating the right is NOT ENOUGH; the right must be eliminated all together (i.e. a right controlled is not a right removed). 2. What does "Recognized and Affirmed" mean? This wording imports some restraint on the exercise of sovereign power. Rights that are recognized and affirmed are not absolute. The federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights.
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Steps to determine if there is a violation of section 35(1):
1. Did the legislation in question have the effect of interfering with an existing aboriginal right? (prima facie interference onus is on party claiming interference) To determine an interference, must ask: a) Is the limitation unreasonable? b) Does the regulation impose undue hardship? c) Does the regulation deny to the holders of the right their preferred means of exercising that right? 2. Does this constitute a legitimate regulation of an aboriginal right? (Justification analysis -is the infringement justified? onus on government) a) Is there a valid legislative objective? (An objective aimed at preserving 35(1) rights would be valid, but it has to be balanced with the interests of society as a whole, such as conservation) b) Is the legislation or action consistent with the honor of the Crown?
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o Aboriginal interests have priority: After the objective is accomplished are the aboriginal interests put above other priorities? o Is the regulation required to accomplish the needed limitation? To this end, the Crown could use facts pertaining to fishing by other Fraser River Indians as proof. Further factors that may be considered in a justification analysis: Could the obligation be met by pursuing other feasible options without infringing s.35(1)? - parallels minimal impairment (Oakes) • Were the aboriginals consulted? (re: fiduciary obligation) • If expropriation was involved, was fair compensation obtained? The list of factors to be considered in a justification analysis is not meant to be exhaustive •
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R. v. Van der Peet (1996) – page 545
Facts: The appellant Dorothy Van der Peet was charged under s. 61(1) of the Fisheries act, with the offence of selling fish caught under the authority of an Indian food fish license, contrary to s.27(5) of the British Columbia Fishery Regulations. Defendant argued that selling fish was an existing aboriginal right and should be protected under section 35(1) of the constitution. This case is different from the Sparrow case because of the commercial aspect. The new test, the ‘modified Sparrow test’, gives the word existing a new meaning, “an element of a practice, custom or tradition that is integral to the distinctive culture of Aboriginal peoples.” So this is saying that the practice in question must be central to the culture and something that should have been developed before contact with European settlers. It cannot have developed solely as a response to European influence. “Integral” does not mean “unique” or “distinct”, but it does mean “central” to the cultural identity, part of what makes this culture what it is: take it away and it changes what the culture is. Therefore “integral” varies according to historical evidence from group to group. In the present case, the court held that there was no market for fish before European contact. I.e. if there was a market for fish, it only happened after Europeans came. Therefore, her conviction stands. Case made 2 additions to Sparrow test:
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“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 claiming the right PRIOR TO CONTACT”. Band must show CONTINUITY of the practice up to today. Don’t have to show a ‘completely unbroken chain’, but there must be some kind of thread precontact. Otherwise not ‘true’ s.35(1) right. Distinctive = Defining feature, significant, necessary, central to a culture’s existence. But how can you say what is central to a culture? And what is incidental? Why does the practice have to have come about before contact? Haigh thinks this is very artificial and cheapens culture and it makes it dependant on evidence. Also, focus on pre-contact is problematic: it is focused on reconciliation which should start, according to Lamer, at that time; however, this freezes rights and cultures etc.
Notes:
The new 5 part test based on Sparrow and Van der Peet
Is it an Aboriginal right? 1. Practice must be pre-existing and central – Aboriginals’ burden 2. Not extinguished – Aboriginals’ burden Was the right infringed? 3. Must be infringed by government act – Aboriginals’ burden (from Sparrow) Is the Infringement justified? 4. Government must show adequate justification - Government’s burden 5. Go beyond Crown’s reasonable discretion as fiduciary to show Aboriginal community has “priority” in enjoyment of resources traditionally utilized – Government’s burden You end up getting imbalances between bands that have been well documented and well studied vs. those that haven’t.
R v. Gladstone (1996) SCC – page 565 <AN ANALYSIS OF JUSTIFYING INFRINGEMENT>
Facts: Member of Heiltsuk band charged and convicted of selling herring spawn on kelp w/out proper license.
Constitutional Law of Canada Majority found that there was an aboriginal right (the defendants met all the requirements of the Van Der Peet test), it hadn’t been extinguished and there was a prima facie infringement. Is the infringement justified? (steps 4 and 5 of Van der Peet test) -
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S.35(1) is not part of the Charter (not subject to s.1 or s.33); however, the federal of provincial government may validly interfere with existing Aboriginal or treaty rights if it can demonstrate on the balance of probabilities that 1) it is pursuing a compelling and substantial objective (like conservation) and 2) in a manner compatible with the honor of the Crown Court had to deal with the difference between commercial rights and subsistence rights. There is an “internal limit” to subsistence rights: when you have enough for subsistence, the limit of the right is reached. However, there is no limit to what you can sell commercially – the only limit is demand. If we allow Aboriginals to have unlimited commercial rights, there is the potential that the non-native industry will be destroyed. Therefore, court held that Sparrow test needs to be modified where there are things that are inherently unlimited – i.e. commercial sale. In such cases, government has a legitimate interest in conservation; government may regulate to protect the industry. If it does so, however, it must give priority to the Aboriginal rights if it was part of their culture. Other objectives that qualify as pressing and substantial are: pursuit of economic and regional fairness and the recognition of the historical reliance upon, and participation in, the fisheries of non-Aboriginal groups
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Ratio: Court distinguishes between subsistence needs (Sparrow) and commercial needs where there is no ‘internal limitation’. Commercial rights may be regulated in the interest of public policy. The Crown may impose limitations on resources in a commercial context if it demonstrates that both the process by which it allocated the resource and the actual allocation of the resource were considered. -So, in the end, for infringement of aboriginal commercial rights, the aboriginals do not have priority -The government just has a simple burden to show that they had aboriginals in mind when the commercial right was infringed
R v. Powley (2003) SCC – supp. 13
<THIS CASE DEALS WITH METIS> Facts: Mr. Powley and his son, both Metis, shot a moose in Ontario during a moose hunt. Moose-hunting is a strictly regulated practice in Ontario. Powley had no license “tag” to kill moose. Inspectors charged him under Game and Fishing Act for killing a moose
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without a license or tag. Powley claimed he was exercising Aboriginal right, and the Act was an infringement of s. 35 rights. Issue: What is the appropriate test for determining whether an Aboriginal right exists for the Metis people? Recall from Van Der Peet that test requires claimant to show that right existed prior to European contact. Metis only came into existence with European contact. Decision: - Court held that the VDP test was still in place, just needed to be revised when addressing Metis rights. In a problem such as this, there are SIX steps that must be addressed. o 1. What is the right? Establish that there is a claim for some right by an Aboriginal, which would allow them to avoid some sort of legislative provision or requirement. Right to hunt (court held it need not be framed as the specific right to hunt MOOSE). o 2. Is the defendant part of the group claiming the right? D has to show that there is some sort of ancestral connection to the community they are claiming. Group must still exist today. o 3. Is the practice or tradition integral to the group? Reformulated slightly for Metis – instead of prior to European contact, the right must have existed prior to the period in which Europeans had control over the political system. o 4. Is the claimant able to establish continuity with the practice and the contemporary claim? o 5. Has the right been extinguished? Regulation does not equal extinguishment – must be some express extinguishment; i.e. murder for revenge extinguished by criminal code. o 6. Is there an acceptable justification for the infringement? In Powley, Crown claimed that moose were an endangered group; this might constitute an acceptable justification. However, court held that if any moose hunting were allowed, Metis needed to be given priority. Only if they got rid of moosehunting ENTIRELY on the grounds of endangerment would you be able to justify legislation preventing the Metis from hunting. Another justification arguments tried by the Crown – it is difficult to tell who is a Metis and who isn’t; this will create difficulty in determining who should be afforded right. The court held that the fact that it may be difficult is not a reason to deny Metis the right.
ABORIGINAL TITLE
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Delgamuukw v. British Columbia (1997) SCC – page 575
Preliminary issues -Lamer C.J. considered that the Court was precluded from dealing with the merits of the Gitxsan and Wet’suwet’en claims for two reasons. -First, the individual claims originally brought by each House had been amalgamated into two communal claims, but had not been formally amended. Because this procedural defect was prejudicial to the province’s rights as a litigant, the correct remedy was a new trial. -Second, a new trial was necessary so that the complex and voluminous factual evidence in the case could be assessed in accordance with principles having specific application to Aboriginal claims such as those of the Gitxsan and Wet’suwet’en. <LOWER COURTS SHOULD HAVE USED THE ORAL HISTORY EVIDENCE> The Rules of Evidence -The oral histories and aboriginal perspectives should be respected as evidence -Para 87: “Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with.” -Lamer C.J. found that the trial judge didn’t respect the oral history Features of Aboriginal Title – ABORIGINAL RIGHTS TO LAND Inalienability, in that lands held pursuant to Aboriginal title may be transferred or surrendered only to the Crown Source, in that Aboriginal title arises from (1) They were there first -- occupation of Canada by Aboriginal peoples prior to the Royal Proclamation of 1763: under common law principles, the physical fact of occupation is proof of possession in law; and (2) the relationship between common law and pre-existing systems of Aboriginal law; some of their laws still survived Communal nature, in that Aboriginal title is a collective right to land held by all members of an Aboriginal nation. Content of Aboriginal Title Includes right to exclusive use and occupation of the land for various purposes
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-Aboriginal title to the right to use the land is not restricted only for activities arising from practices or traditions that were integral to the distinctive culture of the group claiming title. Land use must be compatible with the nature of the attachment to the land -Since continuity of relationship also applies to the future, lands subject to Aboriginal title cannot be put to uses that are "irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land which together have given rise to aboriginal title in the first place" (par. 128). For example, a group successfully claiming Aboriginal title to land that was occupied as a hunting ground may not use the land in such a way as to destroy its value for hunting. -This general limitation on the use of lands does not restrict land use to traditional activities, since this would amount to a "legal straitjacket" on those having a "legitimate legal claim to the land." That is, a full range of uses of the land may be undertaken, subject to the "overarching limit" arising from the special nature of the Aboriginal title in the land in question (par.132). -Nothing in this approach precludes the surrender to the Crown of lands held pursuant to Aboriginal title; in fact, such lands must be surrendered and converted into non-title lands if Aboriginal peoples wish to use them in a manner incompatible with their title. Aboriginal Title and Section 35 -Delgamuukw confirmed that common law Aboriginal title, recognized as a common law Aboriginal right prior to 1982, was "constitutionalized … in its full form" by section 35 of the Constitution Act, 1982 (par. 133). -The degree of connection with the land is pivotal in determining the scope of constitutional Aboriginal rights claimed. At one end of the spectrum of rights are those practices or traditions integral to a distinctive Aboriginal culture, but where the use and occupation of land on which the activities occur do not support a claim of Aboriginal title (rights, but not title) 2) In the middle, such traditional activities may be intimately related to a specific piece of land, so that a group is able to demonstrate a "site-specific" right to engage in those activities, but not to establish title to that land. Both forms of activity are protected by subsection 35(1). (connection to the land, but not title) 3) Finally, at the other end of the spectrum, there is aboriginal title itself. … [A]boriginal title confers more than the right to engage in site-specific activities which are aspects of the practices, customs and traditions of distinctive aboriginal cultures. … What aboriginal title confers is the right to the land itself. (par. 138)
1)
Proof of Aboriginal Title TEST FOR ABORIGINAL TITLE (UNIQUE TEST):
Constitutional Law of Canada 1) Occupation prior to sovereignty (585-6)
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The date of sovereignty can be established with greater certainty than the date of contact;
Later circumstances may be relevant to title, for instance in cases of dispossession of traditional lands occurring after sovereignty – e.g. a group may have been displaced after sovereignty 2) Continuity (“substantial connection”) between present and pre-sovereignty occupation (586-7) • Conclusive evidence of pre-sovereignty occupation may be hard to produce. Therefore, a group claiming Aboriginal title may prove such occupation through evidence of present occupation, supplemented by evidence of continuity. The claiming group need not establish "an unbroken chain of continuity," but rather "substantial maintenance of (their) connection" with the land (par. 153)
3) Exclusive occupation (“intention and capacity to maintain exclusive control”) (587-8) • • • • The test for exclusive occupation in Aboriginal title claims must consider the context of the Aboriginal society in question at sovereignty. In this light, exclusive occupation can be demonstrated, depending on the circumstances, even if other Aboriginal groups were present on or frequented the lands claimed. Aboriginal title can still be claimed even if the land was shared by other groups Moreover, evidence of non-exclusive occupation may still establish shared, sitespecific Aboriginal rights short of title – this the right to use the land, but not actual TITLE
Justification of Infringement of Aboriginal Title 1) Infringement must further a compelling/substantial legislative objective Substantial legislative objectives are those directed at the purposes underlying the constitutionalization of Aboriginal rights, i.e., 1) recognition of Aboriginal peoples’ prior occupation of North America, and 2) reconciliation of that occupation with the Crown’s assertion of sovereignty (COMPROMISE). – You were here first, we’re here now, so let’s compromise A broad range of legislative objectives may justify infringement: (T)he development of agriculture, forestry, mining and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign
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populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title. (par. 165) 2) The Infringement must be consistent with the fiduciary relationship -Have to ask whether they acted I accordance with the honor of the crown in breaching the fiduciary duty towards aboriginials The nature of the fiduciary duty is determined by the nature of the title The Chief Justice pinpointed three aspects of Aboriginal title as relevant in this respect. 1) QUASI-PRIORITY: First, the right to exclusive occupation and use of the land influences the degree of scrutiny of infringing actions. For instance, a fiduciary duty requiring that Aboriginal title be given priority does not entail an absolute requirement, but rather a government demonstration that the process of resource allocation and the actual allocation reflect the prior interest of the holders of Aboriginal title (This is the priority “test” from Gladstone). <e.g. IN THE PROCESS OF BUILDING THIS ROAD, WE THOUGHT ABOUT YOU – BOTH IN THE PROCESS OF BUILDING THE ROAD AND THE EFFECTS IT WOULD HAVE – HAVE TO TAKE ABORIGINALS INTERESTS INTO ACCOUNT AT BOTH THESE STAGES> 2) DUTY TO CONSULT: Second, the fact that Aboriginal title includes the right to choose the uses of land suggests that the fiduciary relationship may be satisfied by involving Aboriginal titleholders in decisions respecting their lands. While the Crown always has a duty of consultation, the nature and scope of that duty vary with the circumstances – Sometimes they need full permission, sometimes they need very little 3) FAIR COMPENSATION: Third, as a result of the "inescapably economic aspect" of Aboriginal title, fair compensation will ordinarily be required to fulfill the Crown’s fiduciary duty when Aboriginal title is infringed. The amount of compensation will vary according to the nature of the Aboriginal title in question, the severity of the infringement, and the extent to which Aboriginal interests are accommodated.
Aboriginal Treaty Rights
General Principles of Treaty Interpretation:
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large and liberal interpretation doubts resolved in favor of Aboriginal signatories sensitivity to Aboriginal perspective honor of the Crown
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common intention
R v. Marshall (1999) SCC – page 593
Facts: Marshall, a Mi’kmaq citizen, was charged with selling eels without a license contrary to federal regulations made pursuant to the Fisheries Act. Marshall claimed he was entitled to sell the eels by virtue of a treaty right agreed to by the British Crown in 1760. In the treaty of 1760, the Mi'kmaq's ability to trade with non-government persons was restrained: “and I do further engage that we will not traffick, barter or Exchange any Commodities in any manner but with such persons or the managers of such Truck houses as shall be appointed or Established by [the Crown]”. Issue: Did Marshall have an existing treaty right exempting him from compliance with the Fisheries act? -Does the exemption clause actually grant him a positive right to trade, because the truck houses don’t exist anymore, so should he be able to trade generally? Decision: Court infers the right to trade fruits of Mi’kmaq hunting and fishing into the treaty. Court infers the treaty term by reference to the historical record, stated objectives of the parties, and political and economic context in which these objectives were reconciled. HELD: Appeal allowed and acquittal entered on all charges. o The trade arrangement had to be interpreted in light of the oral promises made by the Crown during the treaty negotiations. The Crown's promise of the Mi'kmaq's access to necessaries through trade in wildlife was the key. o Where a right had been granted, there had to be more than a disappearance of the mechanism created to facilitate the exercise of the right to warrant the conclusion that the right was extinguished. (i.e. the main point of the agreement was access to necessaries, not to provide Truck houses or limit who Mi’kmaq could trade with). Analysis: Evidentiary Sources -Cannot follow a strict/narrow interpretation, the historical and cultural context is needed, which could involve using extrinsic evidence -The Court’s obligation is to “choose from among the various possible interpretations of the common intention [at the time the treaty was made] the one which best reconciles” the Mi’kmaq interests and those of the British Crown (quote from Sioui). The 1760 Negotiations
Constitutional Law of Canada Mi’kmaq objective: access to the European “necessaries” on which they had come to rely British objective: peaceful relations with a self-sufficient Mi’kmaq people These objectives could not have been achieved unless the Mi’kmaq were assured at the same time of continuing access, implicitly or explicitly, to wildlife to trade. Therefore, the restrictive trade covenant of the written treaty was inadequate and incomplete by itself. The common intention in 1760 must be given effect, not just the terms of the written document. Ascertaining the Terms of the Treaty
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-The court will use the “officious bystander test” <THIRD-PARTY OBJECTIVE TEST> to fill in implicit assumptions: “if the Mi’kmaq are to have something to trade, they obviously need to be given the right to hunt and fish.” Rights of the Other Inhabitants -Aboriginal treaty rights should be given priority over other people, because they’re constitutionally under s. 35 Honor of the Crown -The honor of the Crown is always at stake in its dealings with Aboriginal people - -In this case, it would be dishonorable of the crown to give them an “an empty shell of a treaty promise” The Limited Scope of the Treaty Right -The amount of fishing can be limited – but this limitation can still be enforced without violating treaty rights -To test for this, use the “Badger Test” (SEE BELOW) “Necessaries” means a “moderate livelihood” (Van der Peet) and includes such basics as “food, clothing and housing, supplemented by a few amenities” but not the accumulation of wealth (Gladstone). It addresses day-to-day needs. This was the common intention in 1760. Application to the Facts of This Case -This test from Sparrow was applied to licensing schemes in Adams: “Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing Aboriginal rights in a substantial number of applications in the absence of some explicit guidance.
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-Badger holds that the test for infringement under s. 35(1) (Sparrow test) is the same for both Aboriginal and treaty rights. Therefore, the test from Adams (above) applies. <THE TEST BASICALLY STATES THAT THE MINISTER MUST NOT BE GIVEN TOO MUCH DISCRETION IN AN ABORIGINAL TREATY RIGHT> -For these reasons, the regulations are a prima facie infringement of Mi’kmaq treaty rights and are inoperative against the appellant unless justified under the Badger test. -The prohibitions on catching and retaining fish without a license, on fishing during the close time, and on the unlicensed sale of fish (…) are inconsistent with the treaty rights of the appellant contained in the Mi’kmaq treaties of 1760-61 and are therefore of no force or effect or application to him by virtue of ss.35(1) and 52 of the Constitution Act, 1982.
Duty to Consult
-The duty to consult with Aboriginal peoples arises whenever the Crown is contemplating a course of action that could have an impact on Aboriginal rights or on lands subject to a claim of Aboriginal title, even if the Aboriginal rights or title at issue has been asserted but not yet proven
Haida Nation (2004) SCC - supp.18
• Decision involved Aboriginals who had a land claim to a specific area and surrounding waters and the provincial government was authorizing forestry to take place on the land that the Aboriginals were claiming before the decision come out from the court The Supreme Court of Canada held that the government cannot just go ahead and build a highway before the land claim was established in court. They must consult with the Aboriginals first. The degree of consultation depends on the strength of the claim and the severity of the resource, however it must be meaningful consultation. Therefore the building of the highway as it were was invalid. Crown had a duty to consult and accommodate the Haida Nation before permitting the harvesting of timber on lands subject to prima facie case of Aboriginal title
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Taku River Tlingit First Nation 2004 SCC, supp.20
Crown had satisfied its duty to consult regarding construction of road through TRTFN’s traditional territory “The duty to consult varies with the circumstances. It arises when a Crown actor has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. This in turn may lead to a duty to accommodate Aboriginal concerns. Responsiveness is a key requirement of both
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consultation and accommodation. The scope of the duty to consult 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.”
Mikisew Cree First Nation 2005 SCC, supp.21
-The duty to consult is triggered at a low threshold, but adverse impact is a matter of degree, as is the extent of the content of the Crown’s duty. Here, the duty to consult is triggered - Crown breached a duty to consult before building a road on land subject to treaty right to hunt, fish and trap
Distribution of Legislative Authority
s. 91(24) confers Parliament the authority to pass laws in relation to “Indians, and Lands reserved for the Indians.” R v. Southerland (1980): a province, generally speaking, is not entitled to “single out” Aboriginal peoples. A province, may in some circumstances, regulate Aboriginal peoples by “laws of general application.”
- s.88 of the Indian Act: renders provincial laws of general application applicable to Indians if they don’t conflict with treaty rights or deal with matters dealt with by the Indian Act - s.35(1) of the Constitution Act, 1982: provincial or federal legislation cannot violate Aboriginal or treaty rights unless the government can demonstrate that the violation is consistent with the honour of the Crown
Delgamuukw v. British Columbia (1997) SCC – page 607
Issue: The province wanted to extinguish aboriginal rights on its own, did the province have the power to extinguish Aboriginal rights after 1871, either under its own jurisdiction or through the operation of s.88 of the Indian Act?
Primary Jurisdiction
“Lands Reserved for Indians”
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- St. Catherine’s Milling: Although on extinguishment of Aboriginal title, the province would take complete title to the land, the jurisdiction to extinguish lies with the federal government. “Indians” - s.91 (24) protects a “core” of Indianness from provincial intrusion through the doctrine of interjurisdictional immunity. - The core falls within the scope of federal jurisdiction over Indians. - The core encompasses Aboriginal rights, including the rights that are recognized and affirmed by s. 35(1) - Laws which purport to extinguish those rights therefore touch the core of Indianness which lies at the heart of s. 91(24), and are beyond the legislative competence of the provinces to enact. - The core of Indianness encompasses the whole range of Aboriginal rights that are protected by s. 35(1). Those rights include rights in relation to land (that part of the core derives from s. 91(24)’s reference to “Lands reserved for the Indians.”) But those rights also encompass practices, customs and traditions which are not tied to land as well (that part of the core can be traced to federal jurisdiction over “Indians”.)
Provincial Laws of General Application
s. 91(24) gives exclusive jurisdiction over Indians and Indian lands to the federal government and precludes provincial laws in relation to those matter. Provincial laws which single out Indians for special treatment are ultra vires because they are in relation to Indians and therefore invade federal jurisdiction (Interjurisdictional Immunity) Notwithstanding s. 91(24), provincial laws of general application apply proprio vigore to Indians and Indian lands However, a provincial law of general application cannot extinguish Aboriginal rights
Section 88 of the Indian Act
Provincial laws which would otherwise not apply to Indians proprio vigore, however, are allowed to do so by s.88 of the Indian Act, which incorporates by reference provincial laws of general application. S.88 does NOT “invigorate” provincial laws which are invalid because they are in relation to Indians and Indian land (i.e. despite s.88, provincial laws that are in pith and substance related to Indians and Indian lands are still invalid) S.88 only extends the effect of provincial laws of general application which cannot apply to Indians and Indian lands because they touch on the Indianness at the core of s. 91(24) (i.e. s.88 allows provincial laws of general application – meaning in pith and substance related to some valid provincial head of power and not singling out First Nations- to regulate Aboriginal rights at the core of
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Indianness) For example, a provincial law which regulated hunting may very well touch on the core and although such a law would not apply to Aboriginal people proprio vigore, it would still apply through s.88 of the Indian Act, being a law of general application. Such laws are enacted to conserve game and for the safety of all. Provincial laws of general application which, through the power delegated by s.88, apply to Aboriginal people CANNOT extinguish Aboriginal rights since s.88 does not show the required clear and plain intent to extinguish Aboriginal rights. S.88 does not even suggest such an extinguishment.
s.88 of the Indian Act: renders provincial laws of general application applicable to Indians if they don’t conflict with treaty rights or deal with matters dealt with by the Indian Act - s.35(1) of the Constitution Act, 1982: provincial or federal legislation cannot violate Aboriginal or treaty rights unless the government can demonstrate that the violation is consistent with the honour of the Crown
Dick v. The Queen (1985) SCC – page 611
Facts: Dick killed deer out of season contrary to provincial Wildlife Act. Issues: 1) Is the Wildlife Act inapplicable to Indians as invading federal jurisdiction under s. 91(24)? 2) If the Act is inapplicable, can the provincial law nevertheless apply to Indians by virtue of s.88 of the Indian Act? Issue #1 SCC acknowledges that there was extensive evidence at trial capable of supporting the claim that hunting is part of the core “Indianness” of the Alkali Lake Band. However, SCC states that there was also enough evidence to support the opposite conclusion Therefore, SCC does not decide issue #1, but does assume that the dissent of the Court of Appeal Judge is correct i.e. hunting IS a part of the core “Indianness” of the Alkali Lake Band
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Issue #2 The test for determining whether a provincial law is a law of general application within the meaning of s.88 must analyze both legislative intent (i.e. purpose/policy) and the effect of the legislation.
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Effect can evidence intent In the present case, there is no evidence that the province enacted the Wildlife Act for the purpose of singling out Indians Therefore, even if we assume that the Wildlife Act affects the core of “Indianness”, it is a law of general application and it still applies to Indians because of s.88
Class Notes on Dick: -- <THIS IS HOW THINGS HAPPENED BEFORE s. 35, THIS WOULD BE DECIDED DIFFERENTLY TODAY> can provincial wildlife legislation regulating hunting apply to Aboriginal people? (1982 Act does NOT apply retroactively so Charter does not apply, so Dick had to argue under separation of powers) was provincial law in pith and substance inter vires the province? YES – property and civil rights and it was a law of general application (it did not single out Aboriginal people) okay, it’s valid, but does it have to be read down due to the interjurisdictional immunity doctrine? Hunting is at the “core of Indianness” so the provincial law does not apply of its own force read down Impact of s. 88: Dick not exercising a treaty right, Wildlife Act is a law of general application (absence of intent to single out aboriginals) provincial law does apply would the result in Dick have been different if Dick was exercising a treaty right? see Morris 2006 SCC the provincial law would not be applicable since it would conflict with a treaty right (s.88 would not apply)
would the result in Dick have been different if the hunting at issue occurred after April 17, 1982? violation of Aboriginal rights since the activity was central and integral to his distinctive to his culture prior to aboriginal contact and some continuation of practice Sparrow: precisely because it was a law of general application, it will not survive the test the government did not give any priority to the Aboriginal right to hunt
why are provincial family laws dealing with rights of ownership and possession of family homes (eg Part II of the Ontario Family Law Act) not applicable to “Indians” on reserves? provincial laws dealing with possessory rights in land can NOT apply to reserves (they must be restricted in their application)
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what about s.88? lands are already dealt with in the Indian Act, so s.88 does NOT apply.
Kitkatla Band v. BC (2002)
upheld the provincial Heritage Conservation Act as in pith and substance in relation to “property and civil rights” notwithstanding the fact that the challenged provisions dealt specifically with the preservation of Aboriginal cultural artifacts. The impugned provision were found to be sufficiently well integrated within the legislation to be necessarily incidental Note that in this case, there was no evidence adduced that the provisions of the HCA affected the essential and distinctive values of Indianness. Therefore, there was no question of paramountcy or interjurisdictional immunity in this case
Governance
-Is the right to self-government for Aboriginals protected by the Constitution -The right to self-government was never officially extinguished by the government or recognized by the courts - The SCC left the issue open in Pamajewon 1996. In Delgamuukw 1997, the Court indicated that it is not willing to consider the issue defined in "excessively general terms" and remitted the question to trial. The B.C.C.A. had split on the question of whether aboriginal peoples in B.C. have an existing Aboriginal right of self-government: Delgamuukw v. B.C. (1993), 104 D.L.R. (4th) 470 (B.C.C.A.).
R v. Pamajewon (1996) SCC – page 619
The Court rejected a claim by the Shawanaga and Eagle Lake First Nations to operate and regulate gambling activities on their reserves without complying with the licensing provisions of the Criminal Code. The claimants took the position that the rights claimed were part of their broader rights to self-government and to manage economic development in their communities. Lamer C.J. was willing to "assume without deciding that s. 35(1) includes selfgovernment claims". Any such self-government claims, he says, are claims for Aboriginal rights and just like any other Aboriginal rights, they need to pass the Van Der Peet test. In Lamer’s view, the evidence did not establish that gambling, or the regulation of gambling, was an integral part of the distinctive cultures of the Aboriginal claimants. Informal gambling activities took place on a small scale prior to contact, but the Court found that there was no historical equivalent of the "large scale", "twentieth century phenomena" at issue in this appeal
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PART 3 – THE CHARTER
4 stages of Charter analysis 1) Does the Charter apply to the facts? 2) Does the challenged government action interfere in purpose or effect with the exercise of a Charter right or freedom? (ss.2-23)
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3) If so, is the interference with the exercise of rights and freedoms a “reasonable limit”, “prescribed by law”, that can be “demonstrably justified in a free and democratic society”? (s.1) – shift of onus on the government <OAKES TEST> 4) If not, what is the appropriate remedy? (ss.24 and 52) – courts are given discretion over what the appropriate remedy is for a Charter infringement
I. Interpreting Rights A. Purposive Approach Hunter v. Southam [1984] SCC – page 738
Facts: A search of newspaper offices was carried out by the Combines investigations branch. The statutory basis for the search did not require a warrant. One newspaper challenged the constitutionality of the Combines investigation Act under s. 6 of the Charter – protection from unreasonable search and seizure. Issue: Whether the types of searches permitted under the act were “unreasonable” and thereby invalid under s. 6 of the Charter. Decision: Impugned provisions of the CIA were found invalid. Analysis: Importance of this case is the court’s approach to interpretations of Charter provisions. Ratio: Court expressed the view that the proper approach to the definition of Charter rights and freedoms is purposive. The meaning of a right/freedom is to be ascertained by an analysis of the purpose of the guarantee. SCC stated that a judgment about the scope or value of a particular right can only be made after the court has "specified the purpose underlying" the right or "delineated the nature of the interests it is meant to protect" Therefore, government’s search and seizure powers are not justified in light of a reasonable objective; rather, courts must consider the reasonableness of the impact on the subject of the search and seizure.
R v. Big M Drug Mart Ltd (1985) SCC – page 740
(Included in this section to demonstrate SCC’s purposive approach to Charter interpretation.) Analysis: Charter provisions must be given a large and liberal interpretation Must consider the purpose and effect of the government action Interpretation must be “purposive”: i.e., a Charter right of freedom should be interpreted “in light of the interests it was meant to protect” To determine the purpose of a Charter right or freedom (Big M): 1. Must be considered with reference to the character and larger objects of
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Charter 2. Language used in the text to describe right or freedom 3. Historical origins of the concepts enshrined 4. Meaning and purposes of associated rights: a generous rather than legalistic interpretation (purposes: protection from coercion or state orthodoxy, protect individual conscience from state/church coercion)
B. Aids to / Sources of Interpretation
1) Interpretive Provisions in the Charter S. 25, 27, 28 - don’t create new rights, but provide guidance to how Charter should be interpreted 2) Parliamentary and Committee Debates What weight should courts place on drafting history? Lamer said should be admissible, but not determinative, given only little weight Because of multiplicity of actors - difficult to determine whose opinion should matter Need for dynamic interpretation - constitution should not be frozen in time the official version is that history should not weigh heavily; however, in practice, legislative history does play an important role First Charter case - SCC used legislative history: Quebec was said to go against the very reason s. 23 was legislated Prosper – legal aid case – can hire own lawyer, but is there a Charter right for statefunded counsel in criminal cases? NO when the drafting history is very clear (amendment was originally offered to this effect, but rejected), then the court should not interfere
3) Canadian Pre-Charter Jurisprudence Federal statute - Canadian Bill of Rights (Applies only to federal government) -Sets out range of rights/freedoms that overlap with Charter -Main difference is the CBR could be repealed but Charter is constitutionally entrenched because CBR purported to give new rights and freedom, courts gave it little weight since it could be overturned or modified at any point by the legislature the court’s refusal to follow CBR jurisprudence in Charter interpretation is a clear break with the tradition of parliamentary supremacy CBR jurisprudence: Bliss – discrimination against pregnant women is not gender based, it is “pregnancy based” (HA!) Lavale – provision of Indian Act – Status woman lost status if she married “out”; the same was not true for status males court decided this was not gender discrimination
Constitutional Law of Canada since the law applied equally to all women (HA!) Statutory human rights jurisprudence (re equality rights in s.15) statutory anti-discrimination law IS important to Charter interpretation do NOT leave this out when interpreting equality rights in s.15 4) International Sources foreign law (i.e. comparative constitutional jurisprudence) is “relevant and persuasive” (744-5) -
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US constitutional interpretation is usually where courts turn to re Charter interpretation (we share constitutional aspiration/cultural values and also they have 2 centuries of bill of rights interpretation) Engagement with foreign law is sporadic especially in a global context (we export interpretation methods rather than import them) we should always be VERY weary of following US rights jurisprudence (our Charter rights can be limited by s. 1) given their different structures and historical contexts, similarly worded rights in US and Canada are given different interpretations
international jurisprudence: Charter should be interpreted in a manner consistent with Canada’s international commitments (743-8) 5) Charter case law - 20 years’ worth of Charter jurisprudence Three types of claimants have standing to raise a Charter argument: 1. Anyone whose rights are directly affected. 2. Anyone who has been charged with an unconstitutional offence, whether corporate or individual. (Big M & Morgentaler) 3. Anyone who satisfies public interest standing. To satisfy the test for standing: a. The government action must raise a serious issue of invalidity b. The plaintiff must have a genuine interest. (not a mere busy-body) c. There must be no other reasonable and effective way to bring the issue before the court
II. Defining Limitations: Section 1 – page 748 Section 1 in a nutshell: • “guarantees” rights and freedoms subject only to reasonable limits • Limits are prescribed by law – limitation must originate in a statute, regulation or
common law rule (Therens 1985 SCC, 749); You cannot argue that your Charter rights have been infringed unless there is legislation that infringes them (for example: you
Constitutional Law of Canada cannot claim the police have violated your Charter rights unless they were acting under some statutory authority that violates Charter rights) • pressing and substantial objective • proportionality test – rational connection – minimal impairment – proportionate effects
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A. Prescribed by Law
1) ACCESSIBILITY - The law must be adequately accessible 2) INTELLIGIBILITY - A norm cannot be regulated as “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able, if need be with appropriate advice - to foresee, to a degree that is reasonable in the circs, the consequences which a given action may entail. 3) VAGUENESS - Cannot be too vague; need precision inherent in notion of law
R v. Nova Scotia Pharmaceutical Society [1992] SCC – page 751
Facts: Accused was charged under the CIA for “conspiring to lessen competition unduly in the sale of competition drugs”. They challenged the constitutionality of the charges, on the grounds that the provisions under which they were charged were unconstitutionally vague. Decision: Appeal dismissed. Provisions are not so vague that they would be rendered unconstitutional. A law/provision is unconstitutionally vague if: Vague provision does not provide an adequate basis for legal debate – you can’t reach a conclusion about what it means by applying legal reasoning to 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 – i.e. it doesn’t tell you what you can and cannot it Offers no grasp to the judiciary – the judiciary can’t grasp it
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For these reasons, an unintelligible provision gives insufficient guidance to the courts and is therefore unconstitutionally vague. Threshold for finding a law unconstitutionally vague is relatively high However, courts must be wary of using the doctrine of vagueness to prevent or impeded State action in furtherance of valid social objectives; a measure of generality is also sometimes necessary to promote greater respect for fundamental rights. (Basically, the court fails to provide any coherent basis for actually determining vagueness – seems more to do with policy considerations).
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Bruce Ryder: – only a drastically vague law will likely fail the test; as long as there is some degree of certainty that can open a legal debate, the test is met
B. Justification
1. The Oakes Test: The SCC’s first comprehensive treatment of the meaning of Section 1 came in Oakes. Oakes remains the primary referent for this stage of Charter adjudication.
R v. Oakes [1986] SCC – page 756
Facts: Appeal concerning constitutionality of s. 8 of Narcotic Control Act, which provides that if the court finds accused in possession of a narcotic (beyond RD), he/she is presumed to be in possession for the purposes of trafficking UNLESS the accused can establish the contrary (on BOP). SCC: Court devised ‘Oakes Test’ (for deciding whether a constitutional right may be overridden) 1) Is the constitutional infringement prescribed by law? (Set out in a legal rule, publicly accessible, not too vague – as per NS Pharmaceutical). 2.) Is the legislative objective significant (pressing and substantial in a free and democratic society) enough to warrant overriding a constitutional right? 3) Are the means chosen to achieve this objective reasonable, demonstrably justified and PROPORTIONATE? a) Rational Connection - The measures adopted must be carefully designed to achieve the objective in question; must not be arbitrary, unfair or irrationally based. b) Minimal Impairment - Even if rationally connected to the objective, the means should impair “as little as possible” the right or freedom in question. c) Proportionality – Must be proportionality between the negative effects of the law and the legislative objective. Held: SCC held that the violation disputed by Oakes was NOT justified since it failed the first part of proportionality test there is not a sufficient rational connection between proof of possession and presumption of intention to traffic. The Subsequent Development of the Oakes Test: Context and Deference – page 763 -A new contextual approach Origins of the “contextual” approach to s. 1 lie in the following case (Edmonton Journal):
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Edmonton Journal v. Alberta (Attorney General) [1989] SCC – page 764
Facts: Newspaper challenged Alberta legislation which limited the publication of info arising out of matrimonial legal disputes. (Haigh: Facts not important. Case is valuable for its elucidation of contextual approach to s. 1 analysis.) Decision: Court upheld constitutionality of legislation. Analysis: Must look at all the rights in the Charter in their CONTEXT and look at the practical consequences of violating those rights. SCC recognizes particular right or freedom may have different value depending on context Contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it Freedom of expression may have a greater value in a political context than in does in the context of disclosure of details to a matrimonial dispute. Ratio: The right/freedom in question must be assessed in context rather than in the abstract. Law is a pragmatic instrument and we shouldn’t think about rights and freedoms devoid of reality. This necessitates taking values into account. There will be different contexts, values to consider. Some rights are more worthy of protection than others.
Irwin Toy Ltd. v. Quebec (AG) [1989] SCC – page 766
(Case represents “high water mark of judicial deference”). Court held that greater deference to legislative choice is appropriate in a variety of circumstances: where the government has sought to balance competing rights to protect a socially vulnerable group; to balance the interests of various social groups competing for scarce resources; or to address conflicting social science evidence as to the cause of a social problem. This case introduced a distinction between cases in which the government is seeking to mediate the interests of competing groups (where a more deferential application of s. 1 is appropriate), and cases in which the government is the singular antagonist of the individual whose right has been infringed (where a more stringent application of s. 1 is warranted).
Dagenais v. Canadian Broadcasting Corp
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Court added a refinement to the third part of the Oakes proportionality test. The Dagenais refinement requires that in balancing the positive and negative effects of the impugned law, the court needs to compare the actual impact of the law on the affected right with the actual contribution the law makes to its pressing and substantial purpose. As such, the focus here is on actual effects, not abstractions. This call for a more contextual approach has been interpreted by the court to also mean a greater flexibility in the application of each of the steps of the Oakes test and greater deference to legislative judgment (in certain circumstances) when applying the test. Irwin Toy (above) is a good example of this deferential approach.
Thompson Newspapers Co. v. Canada [1998] SCC – page 768
Facts: Federal government prohibited the release of Opinion polls 3 days before elections (under Canada Elections Act) as a means of curtailing misleading info. Issue: Is elections Act justified under s. 1? (Court quickly affirms that 2b HAS, in fact, been infringed – courts will generally hold that any “expressive content” constitutes a right protected under 2b). Decision: Restrictions held to be an unjustified limit on freedom of expression. No evidence that release of opinion polls would negatively impact upon voters. (Decision is important for its discussion and synthesis of the Court’s “contextual approach” to s. 1.) Analysis: “The analysis under s. 1 of the Charter must be undertaken with a close attention to context”. Factors to consider under contextual approach: The vulnerability of the group which the legislator seeks to protect (Irwin Toy) The group’s own subjective fears and apprehensions of harm (Keegstra). The inability to measure scientifically a particular harm in question, or the efficaciousness of a remedy (such evidential difficulties should not preclude section 1 justification - as in R. v. Butler). The nature of the activity/expression being infringed.
RJR Macdonald Inc. v. Canada [1995] SCC – page 770
Facts: Tobacco companies brought 2(b) Charter challenge against government regulations restricting cigarette advertising; also challenged government regulations requiring them to place warnings on cigarette packages. Issue: Is the legislation justifiable under section 1? Majority: Parliament must justify ANY restriction on right (on balance of probabilities)
Constitutional Law of Canada Government doesn’t meet its onus in this case. Government didn’t adduce sufficient evidence to demonstrate that alternative measures could have been used to achieve same purpose. Dissent (LaForest):
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Bans on ads are restrictions on speech and forced warnings violation of right to remain silent. If you are forced to say or not to say something they are both equal breaches of freedom of expression Oakes is not a ‘unified’ rigidly constructed test. Evidential standards in Oakes will necessarily vary depending upon the case you are dealing with. Especially when there is NO definitive scientific evidence. New reading of Oakes which is unsupported by other SCC judgments. Probably falls under the IRWIN category of the state intervention in the protection of citizens. Ratio: Court is wary of unhinged contextual, deferential s. 1 analyses (as per Irwin Toy). Holds that context, deference and the standard of proof (flexible and realistic) must NOT be attenuated to the point that they relieve the state of the burden imposed by the Charter. Nothing in jurisprudence suggests that contextual approach reduces obligation on state to meet burden of demonstrating that limitation on rights imposed by law is reasonable and justified. Context essential; but cannot be carried to extreme of treating challenged law as unique socio-economic phenomenon, of which Parliament deemed best judge.
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R v. Lucas [1998] SCC – page 771
(Only McLachlin’s dissent is excerpted) McLachlin J dissented from the majority judgment of Cory J, who upheld defamatory libel provisions of the Criminal Code as a justified restriction on the freedom of expression. The excerpt is basically her explanation of why she differed from Cory. In his judgment, Cory J took into consideration the fact that defamatory libel is of “negligible value”, and thus it is entitled to “minimal protection.” McLachlin says we have to be careful not to let the discussion of context preempt the judgment: “The initial conclusion that the expression is of low value may thus dictate the conclusion on the subsequent steps of the analysis in a circular fashion.” Instead, such contextual considerations should be left to the final stage of the analysis, which engages the balancing of values envisioned by the contextual approach. At that stage, the crown has already had to establish the pressing and substantial nature of the legislative objective, the rational connection between the objective and the limitation of the right, and the minimal impairment or appropriate restraint, independent of any subjective considerations of value. Then the task is to determine
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Constitutional Law of Canada whether the benefits of the limitation outweigh its detrimental effects. This way, the S.1 analysis remains both flexible and contextual. “Legislative limits on expression that fall far from the core values underlying s.2(b) are easier to justify, not because that standard of justification is lowered, but rather because that beneficial effects of the limitation more easily outweigh any negative effects flowing from the limitation.”
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Ratio: Cory J.’s section 1 analysis was preempted by his acknowledgement that the type of speech infringed was of minimal value, and thereby entitled to “minimal protection”. In dissent, Mclachlin warns that such value judgments should be left to the final stage of the section 1 analysis, so as not to preclude a fair analysis of the nature of the infringement.
Section 1 Summary Objective of infringing law
• • • • • •
• •
objective of the infringing law must be “sufficiently important” to justify overriding constitutional rights or freedoms (758): Big M 1985 SCC; Oakes 1986 SCC must be “pressing and substantial” (758) - this is usually not a great hurdle for the government in practice purposes directly contrary to Charter values do no qualify (e.g., Big M, note 1 759) the government must rely on the legislative intent at the time of enactment, not a new or “shifting” objective (Big M, note 1 759-60) nor can the government rely on an ultra vires objective (Big M) – if the purpose is a secular day of rest, then it is no longer criminal law! It relates to property and civil rights and is therefore UV the Parliament fiscal restraint, on its own, cannot normally qualify as a pressing and substantial objective; it can, however, when there is a “fiscal crisis”: NAPE 2004 SCC (supp.43) government rarely fails to demonstrate that infringing laws meet the “pressing and substantial objective” test
nevertheless, how objective is framed has an important impact on the outcome of the proportionality analysis (e.g. Irwin Toy 1989 SCC) Majority of SCC: objective is protection of young children from manipulative advertising Dissent: objective is to promote welfare of children Even though both majority and dissent passed the law on pressing and substantial branch, the dissent’s characterization leads to a less clear ration connection later in the test. • focus should be on the objective of the infringing measures (e.g. Vriend 1998 SCC) Proportionality: 1. rational connection
•
758)
means/ends rationality: measures “must not be arbitrary, unfair or based on irrational considerations” (Oakes, law’s means must contribute to the achievement of its objectives easily satisfied in most cases
• •
• • • •
Proportionality: 2. minimal impairment the turning point of the s.1 analysis in most cases means chosen must be the least restrictive manner of accomplishing the objective of the impugned provisions requires a consideration of alternatives available to government
rigor of test (“necessity”) has been reduced in many cases since Oakes: e.g., “as little as is reasonably possible” test in Edwards Books (747) • Necessity or reasonableness? How much deference?
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•
Some factors the courts consider in their contextual analysis are:
1)
2)
3) 4) 5) 6) 7)
the importance of the rights or freedoms at issue in the specific context (eg Edmonton Journal 1989 SCC, 764; Thomson Newspapers 1998 SCC, 768); whether the legislature carefully weighed the competing rights or freedoms at issue; whether the legislation protects a vulnerable group (eg Irwin Toy 1989 SCC, 766); whether the claimant is a member of a relatively powerful group (Irwin Toy); whether the issue requires the consideration of complex social science evidence (Irwin Toy); whether the law seeks to reconcile the legitimate claims of competing groups (Irwin Toy); Whether the law allocates scarce resources (NAPE).
Proportionality: 3. proportionate effects
• – – • • • • • •
must be a reasonable balance between the negative effects on the exercise of Charter rights or freedoms and the importance of the objective (Oakes); and the positive effects of the government action (Dagenais 1994 SCC, 761 note 3)
Summary of components of s.1 analysis limit authorized by intelligible law? objective of infringing law? means selected to achieve objective? availability of alternative means? negative effects on the exercise of rights or freedoms? positive effects of infringing measure?
III. The Override/Notwithstanding Clause (s.33) – page 775
• Enables parliament or legislature to override s 2 or s.7-15 of the Charter If a statute contains an express declaration that it is to operate notwithstanding a provision in s.2 or 7-15 of Charter, then by virtue of s.33(2) the statute will operate free from the invalidating effect of the Charter provision referred to in the declaration Through the use of this power, Parliament or Legislature is enabled to enact a statute limiting (or abolishing) one or more of the rights or freedoms guaranteed in 2, 7-15 Override power, if exercised, removes the statute containing the express declaration from the reach of the Charter provisions referred to in the declaration without the necessity of any showing of reasonableness or demonstrable justification Subject to a temporal restriction - sunset clause - express declaration will automatically expire at the end of five years Rationale is to encourage legislature to reconsider the issue regularly Must “expressly” declare that a statute is to operate notwithstanding a Charter right Not to be inferred, must have “manner and form” requirement that is essential to validity of any statute enacted in violation of provision contained in 2,7-15 Express declaration must be specific to the statute, must be in the statute itself
Constitutional Law of Canada Must be specific as to Charter right which is to be overridden
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Ford v. Quebec [1988] SCC – page 775
Facts: Quebec, only province to oppose the creation of the Charter, wanted to create an automatic rule that would have ALL their legislation operate notwithstanding the Charter. Issue: Is an all-encompassing (omnibus) use of the override valid? Decision: - SCC held that omnibus reference to rights was sufficient; 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” - SCC held normal presumption against retroactivity should be applied to the language of s.33, and the section should be construed as permitting “prospective derogation only.” Ratio: The court held that Quebec could enact this blanket legislation immunizing all their legislation from Charter scrutiny, under section 33 (need express language such that the infringement on Charter rights would be sufficiently drawn to public attention). However Quebec could not do this retroactively (would not apply to legislation already in effect prior to the omnibus legislation). General Class Comments: - Despite ease with which s. 33 may be invoked, use of the override would be politically crippling for most governments - Mechanism is simple but in reality, the political costs of invoking s.33 will keep governments in check. - If the federal government had used s. 33 selectively since 1982, it might be acceptable to use it now. But we have created a culture in which the use of the clause would now be met with political disapprobation.
The Application of the Charter – page 781
WHO THE CHARTER APPLIES TO Interpretation of s. 32(1) of Charter: "This charter applies to the parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to Yukon Territory and Northwest Territories; and to the legislature and government of each province in respect of all matters within the authority of the legislature of each province" In Dolphin Delivery the SCC concluded that the Charter does not apply directly to private actors.
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Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd [1986] SCC – page 781
Facts: The striking employees of Purolator protest at the headquarters of a third party that provides services to their employer. The third party says that the union is barred from protesting at their headquarters by the common law tort of inducing breach of contract. The union argues that this common law rule should be struck down because it violates their right to freedom of expression. Issue: To what extent does the Charter apply to the common law and private parties? Decision: The Charter only affects the activities of government. “Government” is limited to the legislature, executive, and administrative boards -- NOT the court (common law). When an action involves a government party, whether it is a public or private action, the Charter may be applicable to the common law. However, in the event of a private action involving private parties, the common law will NOT be subject to Charter provisions. Ratio: The common law rules governing the relations between individuals and groups lie outside the reach of the Charter. The Charter applies to governmental action or state action, but not to the common law, unless a governmental party is seeking to rely on that common law.
II. Governmental Action – page 786 A. Governmental Actors
If an entity is part of the government, then the Charter will ordinarily apply to all of its actions. The reference to Parliament and provincial legislatures in s. 32 of the Charter means that when laws are passed by those bodies, they must comply with the Charter. In Dolphin the court held that the term ‘government’ did not include the judiciary. This ruling has been called into question. The case law makes clear that not all entities which have powers conferred on them by statute, or are controlled to some degree by government or receive public funding will qualify as government for the purposes of s. 32.
1. Entities Controlled by Government
McKinney v. University of Guelph [1990] SCC – page 787
Facts: Eight faculty members and a librarian challenged the mandatory retirement policies of four Ontario universities. They argued that the universities’ policies violated the equality guarantees found in s. 15 of the Charter by discriminating in the basis of age. Involves mandatory retirement policies (at 65 profs and staff had to retire) Issue: Is the Charter applicable to the actions/policies of universities – i.e. are universities properly characterized as ‘government actors’ under s. 32 of the Charter?
Constitutional Law of Canada Decision: Court held that university was NOT a government actor. Analysis: LaForest talks about a two-stage test; Haigh calls it “an embellishment upon what they did in Dolphin delivery”.
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1) Is the act one of government? (For the purpose of s. 32) 2) Even if the act is not itself one of government, is the particular act in question ascribable to government? (Look at the nature of the activity rather than the entity performing it). While Universities are created by statute, subsist on government funding, and serve a public function, there remains a great deal of independence between universities and government. Government do not have a hand in making University policies. The government cannot determine who the university hires as faculty, who they admit, and most of the individuals who sit on the boards of universities are not appointed by the government. Since there is a great deal of autonomy between universities and government, universities are not government bodies. Ratio: Just because an organization is created by statute, relies on government funding for its survival, and serves a public purpose does not render them a government body. The government must have some type of direct control in shaping the organization’s policies for it to be considered a government body. Note: Court held that universities were not subject to the charter, but COLLEGES ARE. They are managed by a board appointed by the government, and they are not statutory creatures. Ministers of Education generally must approve college bylaws. According to the SCC, those two things create enough of a connection between government and colleges to render colleges subject Charter regulation. 2. Entities Exercising Governmental Functions Even if an entity is not part of apparatus of gov't because it is not subject to routine or regular ministerial control, it may nevertheless qualify as gov't for purposes of s.32 Charter if it is exercising governmental functions.
Godbout v. Longueuil [1997] SCC – page 795
Facts: Municipality enacted law stipulating that only those who live in municipality can work for the municipality. An employee moved out of the area and was fired. He challenged termination on grounds that the legislation violated mobility rights under the Charter. Municipality argued that it was not subject to Charter provisions. Issue: Are municipalities subject to Charter regulation? Holding: Majority held municipalities are subject to Quebec Charter and that it was unnecessary to address the Canadian Charter. Only La Forest (concurring minority
Constitutional Law of Canada opinion) addressed Canadian Charter argument. La Forest held that municipalities are subject to Charter regulation, specifically s.7.
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Ratio: Even in the absence of significant government control over a body, that body may still be bound by the Charter if it functions in a manner similar to that of government. Key factors in this assessment: whether body’s powers are derived from government and if they have law making power similar to that of a government. (i.e. general taxing powers, elected by public etc). This decision is pragmatically important because Federal and provincial governments could easily avoid Charter obligations by conferring their powers to other entities and having those entities carry out government activities or policies in order to evade Charter scrutiny. Class Comments: What about courts? Following the reason of the court in Godbout, shouldn’t courts (common law) be subject to the Charter? Tenuous distinction between governmental functions bestowed on municipalities by provinces, and those ascribed to courts by Parliament. An actor is governmental, and therefore subject to the Charter in all of its activities, if: 1) It is controlled by government: McKinney 1990 SCC (787) Control test -“ultimate or extraordinary control” of an entity by government does not qualify -even though government appointed 14 of 16 members of hospital board, it was held not to be controlled by government in Stoffman 1990 SCC (792) must be “routine or regular” control -board of community college was found to be government in Douglas College 1990 SCC (792) because “the government may at all times by law direct its operation” -Douglas College had no internal autonomy, unlike the universities in McKinney and the B.C. hospital boards in Stoffman 2) It exercises governmental functions: Godbout 1997 SCC (795)
B. Governmental Acts
1. Entities Implementing Government Programs
Eldridge v. British Columbia (AG) [1997] SCC – page 799
Decision: The court ruled that hospitals have to deliver medical services in a way that conforms to the Charter. The failure to provide sign language interpreters constitutes a violation of s. 15 of the Charter.
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Ratio: Entities will be subject to the Charter not only if they are characterized as ‘government’, but ALSO if they perform an act properly characterized as a government activity. This analysis involves looking not at the organization itself, but at the specific act which the organization performs. If the act is found to be an act of government, the organization is subject to the Charter with regards to that act 2. Entities Exercising Statutory Powers of Compulsion In addition to government actors and non-governmental actors implementing specific government programs, the Charter also applies to non-governmental actors exercising coercive statutory powers. For example, in Slaight Communications Inc. v. Davidson the Charter was held to apply to the order of an adjudicator acting pursuant to the Canada Labour Code because the adjudicator was exercising powers conferred by the legislation.
III. Government Inaction
S32 provides that the Charter applies to all matters within the authority of the federal and provincial governments. If a Charter right or freedom requires the fulfillment of a positive obligation, the Charter will apply to inaction on the part of the government with jurisdiction to meet that obligation Vriend - contains discussion of the inaction issue in the context of equality rights
Vriend v. Alberta [1998] SCC – page 805
(Government Inaction) Facts: omission of sexual orientation from Alberta’s Individual’s Rights Protection Act (IRPA); not included as prohibited ground. Vriend attempted to file complaint under act when dismissed from job due to sexual orientation. He brought a declaration for infringing a Charter right. Issue: Does the government have an affirmative duty under the Charter to take steps to combat inequalities? In the alternative, does the government have a duty under the Charter to ensure that the laws they enact are not under-inclusive? Decision: The SCC found that the omission violated Vriend’s equality rights and held that the words “sexual orientation” should be read into the relevant provisions of the Act. Analysis: The Alberta Human Rights Legislation is unconstitutional because it does not include sexual orientation as a ground for protection. Under-inclusive legislation may be found to violate the Charter. However, the court did not discuss whether government could be subject to Charter challenge for failing to act at all with regards to section 15.
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Ratio: If Legislation violates the Charter because it is under-inclusive, it is subject to review. However, there is no ruling on whether a charter challenge under s. 15 can be launched because government failed to act at all.
IV. Application of the Charter to Courts and the Common Law
A. Reliance by Government on Common Law Charter will apply to common law when relied upon in litigation involving a government party, or in proceedings initiated for public purpose In BCGEU v. British Columbia the chief Justice issued an injunction against government employees that were picketing outside a courthouse. Dickson concluded that the Charter applied to the Chief Justice’s order, yet the injunction did not violate the Charter. where common law rule relied upon by Crown in criminal proceedings, the Charter applies as state prosecution provides requisite element of governmental action In both Swain and Dagenais the court did not hesitate to reformulate the common law rules at issue in order to bring them into conformity with the Charter.
B. Reliance on Common Law in Private Litigation SCC’s most lengthy discussion on the relevance of Charter values to the development of the common law in private litigation is found in the Hill case.
Hill v. Church of Scientology [1995] SCC – page 811
Facts: Hill is a prosecutor in Toronto suing the Church of Scientology as a private individual. Hill brought a common law libel action based on allegedly false statements the church made about him. Issue: Is the Charter applicable to a private action based on a common law tort? Is the common law tort of defamation inconsistent with the Charter (s. 2b)? Decision: Even though private parties owe each other no constitutional duties and cannot found a cause of action upon a Charter right, the Court concluded that the common law tort of defamation reflected an appropriate balance between freedom of expression values and the legislative objectives underlying the law. As such, there was no need to amend or alter the legislation. Analysis: Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right. The party challenging the common law cannot allege that the common law violates a Charter right because, quite simply, Charter rights
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do not extend in the absence of state action. The most that the litigant can do is argue that the common law is inconsistent with Charter values. “The party who is alleging that the common law is inconsistent with the Charter 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.” It is up to the party challenging the common law to bear the burden of proving not only that the common law is inconsistent with the Charter values but also that its provisions cannot be justified. Ratio: Even though the Charter doesn’t apply directly to this action, Common law should be interpreted with reference to Charter values (as per obiter in Dolphin). If common law is inconsistent with Charter values, and not justifiable, the common law should be modified.
Remedies
Charter remedies are granted via s.24 of the Charter and s.52 of the Constitution Act S.52 Declarations of legislative invalidity; s.52 remedies are only available where laws (including delegated legislation) are being challenged S.24 individualized remedies including exclusion of evidence, declarations that the rights of an individual or group have been infringed, damages, and injunctions (both prohibitory and mandatory), and any other remedy as the court considers just and appropriate in the circumstances; s.24 remedies are available in cases where the Charter infringement is the result of the actions of public officials, including the police, who are operating outside the constitutional scope of their authority. Remedies under Section 52(1) of the Charter a law may be declared invalid in its entirety partial invalidity via severance, reading down and constitutional exception o severance - reading down bad provisions and keeping the good ones only if the court believes the legislature would have passed the good provisions without the bad reading in (for under-inclusive legislation) a temporary suspension of a declaration of invalidity – allows Parliament or provincial legislature to “fill the void” (problematic since it allows unconstitutional legislation to temporarily persist)
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Schachter v. Canada [1992] SCC – page 1267
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(Important for the discussion of the s. 52 remedies of reading in, severing and temporary suspension of a declaration of invalidity in the case of under-inclusive legislation) In choosing a remedy a court must define the extent of the inconsistency which must be struck down. Courts determine this by looking at the manner in which the law violates the Charter and the manner in which it fails an s.1 analysis: if the law fails the pressing and substantial objective or the rational connection branches, then the inconsistent portion must be struck very broadly/the whole portion that fails the rational connection test. If the law fails the minimal impairment and/or risk/benefit branches, then there is more flexibility: pick striking down, severing or reading in. How do we know which to pick? Read in if there is sufficient certainty on the basis of constitutional analysis what should be read in. Otherwise (in case of any uncertainty), it is the function of the legislature to fill the gaps and not of the courts. (Hunter is an example where there was insufficient certainty as to how to fill the gap and so the court did not read in). Read in if the remedy does not have such a substantial impact on budgetary policy as to change the nature of the legislative scheme: is the group added much larger than the group originally benefited? In Knodel, the group added was much smaller, so reading in was found to be appropriate. Also, if the benefit which is being conferred is itself constitutionally guaranteed (i.e. the right to vote), reading in may be mandatory: for a court to deprive persons of a constitutionally guaranteed right by striking down under-inclusive legislation would be absurd. Sever if the remaining portion is very significant, or of a long standing nature: would it have been enacted without the bad portion? If the Constitution specifically encourages that sort of provision, the significance of the remaining portion is higher, strengthening the assumption that the legislature would have enacted it on its own. (Re Blainey and Ontario Hockey Association is an example where severing was appropriate since it had the effect of extending sex discrimination protection.) Should a declaration of invalidity be temporarily suspended? Yes if there would be negative effects on the public (Reference re Manitoba Language Rights). A temporary suspension of the declaration of invalidity is not an appropriate way for the court to avoid “intruding” on the role of the legislature since the suspension has the effect of allowing unconstitutional legislation to stand: if reading in is appropriate, then read in, don’t just suspend the declaration of invalidity to avoid friction.
Vriend v. Alberta [1998] SCC – page 1277
-An application of the method/factors in Schachter which resulted in the court reading in “sexual orientation” as a prohibited ground of discrimination in the work place via “Individual’s Rights Protection Act” IRPA. The factors are remedial precision; budgetary implications; interference with legislative objective; degree of change in the legislative scheme; importance of the legislative scheme.
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M. v. H. [1999] SCC – page 1284
Facts: exclusion of same-sex couples from the definition of “spouse” under Ontario’s Family Law Act (FLA) for spousal support was found to be an unjustifiable infringement of s.15 of the Charter Issue: What is the appropriate remedy? Decision: The court struck down the offending provision (s.29) subject to a six-month delayed declaration of invalidity. Analysis: Instead of reading in same-sex couples, the court distinguished Vriend. Here, reading in in s.29 would have had significant repercussions for a separate and distinct scheme under the FLA. Therefore, it is not safe for the court to assume that this is the path that the legislation would have taken. Striking down the entire FLA would be excessive: since the offending provisions are not so inextricably bound up with the non-offending that they cannot independently survive, it is safe to assume that the legislature would have passed the sound parts without the unsound parts. Therefore, severing s.29 of the FLA (declared of no force and effect) temporarily suspended for six months: the suspension is necessary to give the legislature time to devise its own approach to solve the unconstitutionality of the FLA and of other Acts which use similar offending definitions of “spouse”. The legislature is better suited to address these issues form both a financial and a democratic point of view.
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Note on Constitutional Exemptions When a constitutional exemption is granted, the law remains in force, but it is declared inapplicable to individuals or groups whose Charter rights are infringed by its effects. Remedies under Section 24(1) of the Charter Note on Structural Injunctions Structural Injunctions (aka civil rights injunctions) are complex supervisory orders. Mostly a US structural remedy which is controversial in Canada and which has been requested mainly in the context of minority language rights (s.23 of Charter). This is a problematic remedy since it gives courts legislative and administrative powers (in the US
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such functions included redrawing electoral boundaries, desegregating school systems by redrawing school boundaries and ordering the bussing of children etc). Note on Damages Damages are a possible remedy for Charter violations, but such claims are a rarity and only very few have been successful. Generally, where a statutory provision has been struck down pursuant to s.52, a claim for damages under s.24(1) is not ordinarily available (Schachter). Standing Who can claim remedies for Charter violations? Anyone whose Charter rights have been directly violated has standing to raise the Charter issue and seek a remedy under either s.24 or s.52(1). Also, a corporation can also challenge the constitutionality of a law under which it was charged even if it is incapable of enjoying the particular right or freedom (Big M Drug Mart). In such cases, a declaration of invalidity sought under s.52 has more generous standing requirements than relief under s.24(1). However, a corporation which cannot claim an infringement of its own Charter right is not allowed to bring independent civil actions seeking declarations of a law’s invalidity, despite the fact that they are subject to regulation under the law in issue and to possible criminal or penal sanctions should they violate it. Public standing may be granted according to the factors in Canadian Council of Churches: the action must raise a serious legal issue, the Plaintiff must have a genuine interest in the issue (not just a busy body) and there must be no other reasonable and effective manner in which the question may be brought to court.
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Freedom of Expression s.2(b) – p. 893
protects freedom of thought, belief, opinion and expression, and freedom of the press protection afforded by s.2(b) is content-neutral; all communicative activity is protected provided it is not violent the “real debate” in most s.2(b) challenges to laws takes place in the s.1 proportionality analysis (see cb898-9) in Dolphin Delivery said violent threats are not protected but since then have reversed that to say that it is protected under s.2(b)
Purposes of s.2(b) - democracy (political expression) – political debate needed - truth (expression about ideas) – pursuit of truth an knowledge as much as possible - self-realization (artistic expression)
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Ryder says they don’t get far b/c so broad, but the purpose affects the s.1 analysis
Means of Restricting Expression - criminal offences (e.g. libel, sedition, treason, hate propaganda, obscenity, child pornography) - prior restraint or administrative censorship (e.g. Ontario film review board, Customs’ prohibitions of imported publications) - regulatory offences (e.g., re professional advertising, election advertising, bilingual labelling etc.) - court and tribunal rulings in civil actions (e.g., damages for defamation, injunctions against picketing) - policies or rules restricting expression on public property or in public media (e.g., restrictions on access to government property) - licensing of broadcasters - time, place and manner laws (e.g. noise by-laws; licensing of or other restrictions on parades, demonstrations or pickets) - compelled expression (e.g. consumer labelling requirements) Establishing a Violation of s.2(b) S. 2(b) Analysis – breakdown from Irwin Toy 1989 SCC at 908 1. does the activity at issue convey a meaning in a non-violent form? if so, 2. is the purpose or effect of the impugned government action to control expression by reference to its content? if so, violation established; S. 1 Analysis 1. pressing and substantial 2. proportionality a. rational connection b. minimal impairment c. proportionality the Oakes test is applied “flexibly” (unpredictably?) in s.2(b) cases s.2(b) provides content-neutral protection to all non-violent expression s.1 “contextual analysis” is content-specific, meaning that not all expression is equally worthy of constitutional protection some restrictions on expression require finding evidence of harm, others restrictions on the basis of common sense, reason or logic section 1: contextual analysis Oakes test that accounts for contextual factors, it considers: 1. whether the expression at issue is closely related to the purposes of s.2(b) (“core” or “peripheral” expression?); - 3 purposes (truth, democracy or self realization) – if it can fit under these types of expression then there is much more consideration for its protection
Constitutional Law of Canada - if not in these 3 then peripheral therefore should require less of the gov’t in defending restrictions – such as with pornography, defamation and commercial advertising 2. the socioeconomic position of those negatively and positively affected by the law; whether the group “protected” by a law is truly “vulnerable” to manipulation, discrimination or violence ex children in Irwin Toy
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3. if the group is vulnerable then there is a much more deference to the gov’t protecting the group ex. Thompson Newspapers– the restriction of polling data a few days before an election cannot be restricted, will not have such a negative affect on cdn voters – the law is overly paternalistic ex. Pepsi-cola – restriction on leafleting is allowable 4. whether the restricted form or content of expression is particularly important to a vulnerable or disadvantaged group (e.g. postering: Ramsden; consumer leafleting: KMart; sexual expression: Little Sisters; but see Banks Ont CA 2007)
Dolphin Delivery SCC 1986 – page 901
Issue: does picketing convey a meaning? Decision: found that picketing was a form of expression, this is clear, but argument was that it is not a real conversation between the picketers and others - saying that it is not expression but signaling, as soon as people see the picket they won’t go to the biz – but this argument was dismissed by the courts Ratio: with Dolphin Delivery did not see connection between co’s therefore 3rd party picketing not allowed, therefore not saved under s. 1 Notes p. 903 Kmart – distinguished between leafleting and picketing and a communication in labour disputes, SCC found that a ban on secondary leafleting was not saved under s. 1 Pepsi-Cola – reinterpreted common law values regarding picketing in light of Charter values, found that secondary picketing was allowed if it was not tortious Commercial Expression - protected by s.2(b) because it conveys a meaning, and on the theory that it contributes to consumer autonomy and to the self-realization of buyers and sellers: Ford SCC 1988 (906-7); Irwin Toy SCC 1989 (907) - consumer autonomy requires extensive regulation of, for example, misleading or manipulative advertising practices (these must be upheld under s.1) - early on it was a question if it would be protected – now not a problem to included b/c of broad definition
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Ford SCC 1998 - page 906
Facts: challenging law banning French from signs arguing that the use of English on a sign was part of freedom of expression, and commercial expression is also guaranteed - the court agreed that both should be protected Decision: it is the right of the consumer that is protected when protecting commercial expression, as well as the right to businesses - powerful actors can abuse freedom of expression, that it is not devoted to truth, knowledge and realization therefore commercial expression is not a core value, it is further to the margins, therefore it can be more easily restricted
Irwin Toy 1989 SCC – page 907
Facts: challenge to provisions of Quebec’s Consumer Protection Act prohibiting advertising “directed at persons under 13 years of age” Decision: statute violates s. 2(b) but is saved under s. 1 Majority: conveyed a meaning under s. 2(b), s. 1 analysis considered the complete prohibition of advertising to children under 13 s. 2(b) – met purpose and effect test upheld restriction b/c of the sociological evidence that children cannot discern what is real, trying to prevent harm through manipulative advertising – did not matter that the info was for younger children then the ban was for -was enough to rely on common sense for the ban s. 1 Analysis 1. pressing and substantial – found on a balance of probabilities that children up to 13 are manipulated by commercial advertising 2. proportional - analyzed rational connection, minimal impairment and proportionality together and found that all requirements were met because of evidence of effects therefore complete ban not out of proportion Minority: felt parliament should have conclusive evidence for the age group that the ban is operating for RJR-MacDonald SCC 1995 (920) Facts: challenge to provisions of the federal Tobacco Products Control Act restricting marketing of tobacco products Decision: 5-4 majority strikes down most of the offences in the Act, including complete ban on tobacco advertising, and requirement of including health warnings on packages
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Majority: S. 2(b): government concede a violation S. 1 Analysis 1. pressing and substantial – yes, because criminal matter, related to social evil 2. proportionality a. rational connection - problem for maj was that gov’t had research that they used in making the decision but did not disclose the studies to the court, the suspicion is that the evidence they had did not support the leg - need to have some evidence of link between health and advertising - SCC said complete prohibition could not be sustained, need to considered why there is a complete prohibition (if there is evidence then may allow) otherwise need to be more specific b. minimal impairment - majority found complete ban on advertising failed the least restrictive means test - government had presented no evidence to demonstrate need for a complete ban, as opposed to a partial ban that permitted information and brand preference advertising - unattributed mandatory health warnings also failed the minimum impairment test: they would be clearly justifiable reasonable limits on freedom of expression so long as they could be attributed to government (934-5) c. proportionality - found complete ban on advertising failed the proportionality test - government had presented no evidence to demonstrate need for a complete ban, as opposed to a partial ban that permitted information and brand preference advertising (per McLachlin 933; Iacobucci 935-6) - unattributed mandatory health warnings also failed the minimum impairment test: they would be clearly justifiable reasonable limits on freedom of expression so long as they could be attributed to government (934-5) Minority: found that the s. 1 test was met in all areas - money spent on advertising is enough to indicate a link between advertising and smoking - found that complete ban and unattributed warnings were proportional Note: new Tobacco Act responds to these concerns of the majority; will likely be upheld under s.1
R. v. Banks Ont CA 2007
validity of provisions of Safe Streets Act and Highway Traffic Act that prohibit soliciting on roads
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s. 2 (b) Analysis: targets non-violent activity that conveys a meaning by reference to its content, therefore violates s.2(b) s. 1 Analysis: - issues of morality and order on roads, prevents aggressive panhandling and squeegee kids - have to make sure that there is a link between the ban and the concern for safety - look at exception of Morgentaler where the health rationale was minimal - Westendorph was not for safety from prostitute on the streets but is singling out prostitution with a heavy penalty – clear that they are punishing on moral grounds - argument in Banks says that it is for safe streets but singles out squeegee kids for moral sanctions and not about safe streets - the leg debate at the time made it clear that they were cracking down on squeegee kids - Ont. Court of Appeal said that weight must be given to leg weight but the pith and substance is safety - Bruce Ryder – if this went to SCC it may reverse based on the moral grounding of the leg, that the pith and substance is not based on safety - is soliciting political or commercial expression, or does it fall in some other category? is a searching or deferential standard of review appropriate? - problems with leg – a complete ban on roadway HATE SPEECH -A lot of goals for protecting people who may be the subject of hate propaganda -Used to be a false news provision of the crim code in Zundel, but that section was struck down as unconstitutional -There are also some provisions for hate propaganda in human rights legislation, like Canadian Human Rights Act – a federal statute so, can only deal with media that falls within federal jurisdiction – like broadcasting, telecommunications, internet, etc…. -When it comes to hate speech, analysis should NOT be limited to the Criminal Code, human rights legislation also applies -When speech, in its effects, interferes with equality rights, equality rights prevail
R. v. Keegstra 1990 SCC – page 941
Dickson CJC: Facts: -Convicted for hate speech for spreading Jew hate at his high school -Argued that s. 319(2) of Crim Code violated his right to free expression under s. 2(b) of Charter -Won appeal at CA and Crown appealed to SCC
Constitutional Law of Canada Issue: -Can s. 319(2) be upheld as a reasonable limit on freedom of expression?
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-The issue divided the SCC 4-3 in this case – the majority voted to uphold the provision -There was no real debate as to whether it violate s. 2(b), the real debate was whether is violated s. 1 Analysis: -Have to first ask whether the provision is valid in pith and substance – in this case its obvious that it’s valid under fed. gov’s criminal law power -This provision makes it an offence to communicate statements that willfully promote hatred against an identifiable group -As opposed to a human rights legislation, this provision of the Crim Code does not just apply to federal statements made through broadcasting and such, this provision applies to all communication, except for private conversation -It has to be willful – intentionally promoting hatred – but HATRED was not defined, so a question was whether that word was too broad to constitute a violation of freedom of expression – like color, race, religion, origin or sexual orientation (gender is not included) -Debated as to whether Parliament intended to pass the law to restrict expression in respect to its content or whether it was aimed at restricting freedom of expression for truth, democracy, and self-realization -Claimant only had to show that the expression promoted truth, democracy, and selfrealization – Parliament does not have to show that the purpose was to restrict freedom of expression, but rather it’s just an effect of passing the law – this establishes that it’s a violation of s. 2(b) (very easy to establish this) s. 1 Analysis Proportionality Test (i) Pressing and Substantial -Held that s. 319(2) does provide a intelligible basis for valid legal debate – this is a requirement that was met -Next has to ask what was the objective of the statute and whether it is pressing and substantial and not too vague -The objective was to prevent the harms caused by the expressive activity at issue, so have to determine the harms of the hate propaganda first Dickson J – MAJORITY Saw 2 types of harm: 1. The harm to the group that is targeted – psychological consequences
Constitutional Law of Canada 2. Influence on society at large – this is a pressing and substantial concern -Chief justice said BOTH these reasons were pressing and substantial
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-It is clear that the expression prohibited by s. 319(2) is not closely linked to the rationale underlying s. 2(b) – promotion of free ideas in a free and democratic society -We can reject hate propaganda and show dislike for hate-mongers while still protecting the values central to freedom of expression (ii) Rational Connection -This is the first branch of the proportionality test and it has been met -Hate propaganda laws are part of a democratic society’s efforts to prevent the spread of racism – there is a rational connection in this context (iii) Minimal Impairment of The s. 2(b) Freedom -s. 319(2) minimally impairs freedoms because only the most extreme forms of hateful expression fall under it -It doesn’t prohibit people from speaking hate in private conversation – it just prohibits them from speaking them publicly c. Alternative modes of furthering Parliament’s objective -Even though presumption of innocence is infringed, it cannot be saved by s. 1 (iv) Cost-Benefit Analysis -But the big question was whether a criminal sanction was the best and least intrusive means of dealing with this issue, and do the positive effects of the prohibition outweigh the negative effects on the infringement of free speech -Dickson said yes -There are many defences to the provision – thus it does not restrict freedom of expression to an unreasonable degree McLachlin J Dissent: Rational Connection -No evidence of a rational connection between s. 319(2) and the goals it promotes -History has shown (e.g. Nazi Germany had anti-hate laws) that there is little reason to believe that hate propaganda laws contribute to the cause of multiculturalism and equality Minimum Impairment
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-s. 319(2) is a broad prohibition that is a big threat to freedom of expression that cannot be saved by s. 1 the offence can be counter-productive – gives a platform to racists to propound their views – gives people like Keegstra a martyr-like status and media attention that they would not otherwise get – so it would be better to ignore them from a criminal law point of view and combat their ideas through things like education -Thus it will not work to control hate propaganda and curb the effects of it -Her main concern was that the legislation will have a “chilling effect” on political speech – people will be too afraid to speak their minds without being charged criminally REGULATION OF SEXUALLY EXPLICIT EXPRESSION -These things have usually been regulated on the grounds that they are offensive and immoral
R. v. Butler [1992] SCC – page 968
Facts: -Accused charged under s. 163 of the Criminal Code for selling hardcore porn in his shop -Brought up another freedom of expression argument under s. 2(b) Issue and Decision: -Can gov. uphold this provision under s. 1 – SCC said a unanimous yes to this question Analysis: MAJORITY – Sopkinka: -For the material to be “obscene” is has to depict an “undue” exploitation of sex, this is determined through the “community standard of tolerance test” – measure the obscenity against “community standards” -Obscentiy labeled as the undue exploitation of sex – depends on what the community would tolerate – court said this approach is too subjective, have to shift to a harm-based approach -- a high degree of harm, cannot be trivial or speculative, has to do with the degree of evidence, can use reason, logic and common sense – this gives the wrongful conception that the obscenity provision is very broad and easy to enforce – this is not true, the burden on the crown is VERY high -What plays a bigger role in determining obscenity is bodies like the CRTC and the Ontario Film Review Board to determine whether material is obscene pursuant to s. 163 of Criminal Code -The Charter challenge in this case did not succeed in getting the provision shut down, but it did get it re-conceptualized -The Charter challenge in this case did not succeed in getting the provision shut down, but it did get it reconceptualized -Sopinka stated categories of obscenity:
Constitutional Law of Canada 1. Material that uses children in its production 2. Depictions of sexual violence 3. Material that is degrading and dehumanizing and poses a substantial risk of harm to society – this is the most difficult category -Sopinka thus redefined obscenity Does s. 163 violate s. 2(b) of the Charter -It does violate freedom of expression under s. 2(b) -There was nothing physical in the materials, and under s. 2(b), thoughts and feelings should be able to be conveyed freely in non-violent ways -Thus there was a s. 2(b) violation -Held that this does provide a sufficiently intelligible basis for legal debate -Then asked whether it is pressing and substantial Is s. 163 Justified Under s. 1 of the Charter?
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-s. 163 is not overly-vague, it provides an intelligible standard as a limit prescribed by law -The pornography industry’s growth makes the concern more pressing and substantial -The objective of avoiding the harm associated with the dissemination of pornography in this case is sufficiently pressing and substantial to warrant some restriction on full exercise of the right to freedom of expression -Pressing concern is to protect women and children in society – the rationale is that men who are routinely exposed to these images will be prone to treat women the wrong way – this is the objective that the court is aimed at preventing -Problem is the objective has to be the objective at the time the statute was enacted, NOT about the effects that it could have -Either way, the harm prevented by curbing obscenity meet the pressing and substantial connection test Proportionality -The Rational Connection exists – show community’s disapproval of obscenity and the sexually explicit materials -Prescribing violent material that poses a risk to society is rationally connected to the goal of preventing harm -There is also minimal impairment to rights because s. 163 is very specific -There is also a defence for artistic expression, but it’s not written into the Criminal Code -Also, private expression of these things is not prohibited, only prohibited when it’s in a more public nature and poses a threat to society
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Little Sisters Book and Art Emporium v. Canada – page 981
Facts: -Little Sisters – lesbian bookstore in Vancouver has had a war with Canada customs for over two decades now -Challenged s. 14 of Customs Tariff, which forbids bringing obscene material into Canada Decision: -SCC held that it restricted freedom of expression, but could be justified by s. 1 -But also held that the manner in which the legislation had been implemented by Customs officials violated the bookstore’s rights and could not be justified under s. 1 -It was up to the customs officials to determine whether the materials were obscene or not -This is a form of prior restraint censorship – the way that the standard is enforced is so different from something like a criminal trial, where evidence is presented and weighed -Held that customs officials exercised their authority in a way that violated bookstore’s s. 2(b) rights because it suffered unnecessary prejudice because of delays, costs, etc…. -The violation was not in the legislation, but in its effects -Also argued that it singled out lesbians and discriminated against them and the Vancouver “queer community” as a whole -The bookstore went further and tried to get the legislation struck entirely -Binnie J held that the legislation itself did not sufficiently violate the Charter to the point where it should be struck down – the problem was how it was enforced -- – customs officers were improperly trained in carrying out obscenity laws – argued that this can be fixed without having to strike down the legislation and leave it to customs administration to clean up its act -The majority’s ruling was a declaration – not a hard ruling, depends on the goodwill of the other branches of government complying with it -In DISSENT, Iacabouchi said this is not enough – it should go back to Parliament to explain the meaning of censorship and impose clear guidelines -It’s not acceptable to treat a constitutional right the exact same way as you treat other prohibited material – safeguards have to be put in place to ensure that constitutional freedoms are protected -Bruce Ryder thinks the majority decision was a fatal mistake -He does not think that a declaration is sufficient, what is needed is rather systemic change – “appalling approach to censorship” -The system is not built in with enough safeguards, if we value freedom of expression as much as we claim to -Little Sisters has been arguing for the past few years that the changes imposed are not enough
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-Later, the SCC agreed with BC CA and held that the case was not important enough for a remedy of advanced costs -So not a very happy ending Child Pornography -This is an offence under s. 163.1 of the criminal code -Child pornography – crim. prohibition on expression to stop people from suffering harm -Stronger than prohibition in the obscenity provision – already made it a crime to purchase, sell, distribute child porn in this country -In 1993, fed. gov. expanded the Criminal Code to make possession of child porn a crime (before, it was just illegal to produce, sell and distribute it) -Argued that if we want to shut down child pornography, we have to shut down the supply and demand of the industry and this means including a simple possession offence -Parliament was persuaded by this argument -Another rationale to restrict written material too – all imaginary representations, because people who viewed them were argued to be predisposed to commit violent acts against children -An argument that all this criminalization was over-reaching -The issue was what the imaginary depictions actually raised – civil liberties issues for protecting stories that someone wrote themselves -Sharpe case was the most extensive application of the reading-in provision
R. v. Sharpe – page 986
-The law was challenged and McLachlin J held that it violated s. 2(b), but it was saved by s. 1 because the purpose of protecting children was pressing and substantial and there was a rational connection to this -So 163.1 was upheld as a reasonable limit on free speech -But the chief justice decided to “read in” a few exceptions to the law – such as a single item for someone’s own personal use and audio recordings, as long as they are not too sexually explicit -Sharpe was acquitted with respect to his stories – held that they did not counsel or advocate violence against children -Now things have changed, advocating is not necessary, it’s a crime if the material describes explicit acts against children -The issues of constitutional validity for s. 163.1 are not over, Parliament has amended it many times and continues to do so, in order to show Canada’s extreme condemnation of child pornography NOTE: Bruce Ryder thinks 163.1 is not constitutionally valid and there is no good legal rationale for it at presentment – the imaginary representations are not a big social issue
Constitutional Law of Canada -This prohibition is vulnerable to being struck down, because there is no artistic merit defense available – artists cannot depict any child sexuality and defend it as art Controls on Election Spending
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Libman 1997 SCC – page 990
Facts: struck down provisions of the Quebec Referendum Act that banned third party spending during a referendum campaign s. 1 Analysis: 1. pressing and substantial: found that promoting fairness in access for elections met this requirement 2. proportional a. rational connection - 1991 Election Royal Commission found the need to limit spending of both direct and third party spending, therefore rational connection – “highly laudable” objective b. minimal impairment - but for 3rd parties, there was a complete prohibition for the Referendum – found this to be overly restrictive - said that a complete ban was not a reasonable limit, suggested a $1,000 limit c. proportionality - not considered b/c failed at minimal impairment Harper 2004 SCC - validity of third party campaign spending limits in s.350 of the Canada Elections Act (note 2, 1000): upheld 6-3 - Harper 2004 SCC Harper challenged before he was a public official, said that regulation should be struck down b/c it was too low - was a violation of s. 2(b), but under s. 1 it can be upheld – the objective is highly laudable (like Libman), and was a minimal impairment (in Libman the prohibition was too great of an impairment) - dissent – essentially agreed with the majority, but said that the limits in spending were to low when looking at the cost of advertising with major broadcasters and newspapers Note on Publication Bans
Thomson Newspapers 1998 SCC (note 4, page 1001)
s.322.1 of the Canada Elections Act prohibited the publication of election campaign polls during the final 3 days of a campaign; declared invalid in 5-3 ruling idea of prohibition was it wouldn’t give people enough time to analyze the validity of data, and polling can have a significant impact on a persons vote
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failed at rational connection: people are capable of making an informed decision therefore ban not required
Bryan 2007 SCC - decision came March 2007
s.329 of Canada Elections Act prohibits the publication of voting results before polls close in other ridings; upheld 5-4 - interesting with respect to how much and what kind of evidence the gov’t needs for a limit on freedom of expression - the goal is to ensure informational balance across the country - don’t want voting results in the east to affect the voting or decision to vote in the west - what makes more difficult is that Lortie Commission on elections in 1991 that said that the ban on publishing election results was outdated Majority – upheld the ban Dissent – (Abella) said that the gov’t claims were speculation, needs to be something more than that for a prohibition - also have staggered voting hours now (recommended by Lortie) so that before the polls close in the west only the Atlantic Prov results will be known (and Atlantic only has 38 ridings of 308) – there is not real affect b/c of this, don’t have the Ont/Que results does not matter -
S. 7 -- LIFE, LIBERTY and SECURITY of the PERSON
section 7 analysis 1) Is there an infringement of life, liberty or security to the person?-yes then step 2; 2) Is the infringement based on a principle of fundamental justice?-yes then step 3; 3) Can the infringement be upheld by a s.1 analysis?-no then remedy; 4) Remedy….
I. Introduction
Section 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.” • Although “everyone” could include natural and legal persons, Courts have held does not apply to corporations. -When there’s a violation, the onus is on the claimant to prove that his life, liberty and SOTP have been violated AND that the violation was not in accordance with the POFJ 1. Procedural Right—individual has the right to a fair trial in Canada etc.;
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2. Substantive Right—individual has the right not to be executed Drafters thought they were importing natural justice doctrine only, but the testimony of Streyer was given ‘minimal weight’ in Motor Vehicle Reference (1985). Court said that if they had only wanted to protect procedure, they could have used a phrase like “due process.” 1. Establishing a Violation of a Life, Liberty or Security of the Person two-step process: 1) claimant must demonstrate an interference, in purpose or effect, with one of the three interests protected in s.7; and 2) the claimant must demonstrate that the interference is not in accordance with the principles of fundamental justice -If the claimant gets past step 2, then the burden shifts to the government and the Oakes test is applied • Life, liberty, and security of the person are 3 distinct interests; violation of any one can give rise to a s.7 claim. • LaForest (p. 661): s.7 contemplates internal balancing process, a balancing of individual and community/public interest rights. If deprivation is in accordance with principles of fundamental justice, s.7 right not been violated. To qualify as a principle of fundamental justice, a principle must: 1) Be a legal principle; 2) Must be a significant social consensus that it is vital to our notion of justice; and 3) Must be capable of being stated with precision and yielding predictable results All of these components must be met This places on claimants of s.7 an onerous burden of proving that it is a principle of fundamental justice—its going to be harder This is the test that a claimant must meet So far recognized principles of fundamental justice: -in addition to the specific rights listed in sections 8 through 14, the pofj include: substantive and procedural rights—s. 7 should not be restricted to procedural rights. -procedural fairness -no punishment of innocent (mens rea requirement) -intelligible standards (no vagueness) -lack of arbitrariness (a rational connection must exist) -least restrictive means (over breadth-has the government selected the least restrictive means?) -proportionality(between the negative and positive effects of the government action) -protection from extreme violations of human dignity (deportation to torture) -protection from self-incrimination
Constitutional Law of Canada -right to a fair trial, including right to make full answer and defence principles of fundamental justice -s.1 requirements is reproduced in s.7 There is a great deal of overlap in the questions to be answered in s.7 and s.1 Oakes analysis
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What principles have been determined NOT to be principle of fundamental justice? -harm principle (Malmo-Levine 2003 SCC)—bestiality, incest. -best interests of the child (Canadian Foundation for Children, Youth and the Law 2004 SCC)—spanking case, removed criminal sanction of assaulting children for behaviour modification -SCC said “best interests of the child” is a legal principle, it doesn’t apply with absolute precision in particular contexts -These two cases illustrate the claimant’s burden of proving a pofj has been infringed.
Reference re Section 94(2) of the Motor Vehicle Act (BC), p.1073
Facts: absolute liability for a driving offence which doesn’t matter First case the SCC dealt with s. 7 Issue: What is the nature and scope of s. 7 Life, Liberty or the SOTP Rule: sections 8 to 14 address specific deprivations of the right to life, liberty and SOTP in breach of the principles of fundamental justice, and as such, violations of s. 7. NOTE: The structure of s.7 authorizes the state to violate the right to life, liberty , or SOTP if it does so in a manner that conforms with a principle of fundamental justice, and that a law that does not comply with fundamental justice may amount to a reasonable limit under s.1 of the Charter. -It thus requires a court to determine, first, the nature and scope of the right to life, liberty, or security of the person; second, the nature and scope of fundamental justice; and third, the applicability of s.1 of the Charter.
II. Section 7 and Bodily Integrity
R. v. Morgentaler p.1077 Facts: Criminal Code makes it an offence to obtain an abortion, then creates limited exceptions (a defence): accredited hospital, therapeutic abortion committee must
Constitutional Law of Canada provide certificate stating pregnancy endangers life or health, abortion must be performed by qualified doctor who is not on T.A.C. Dr. Morgentaler opened free-standing clinic (not accredited, no TAC, no investigation to determine if pregnancy endangers life or health). Issue: does the criminal prohibition and procedural process for abortions violate s.7 of the Charter Decision: 5-2 decision in favor of Morgentaler; three decisions on majority side (Dickson/Lamer, Beetz/Estey and Wilson; Dis-McIntyre/LaForest)
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-Dickson C.J. (and Lamer): Considers whether there is deprivation of “security of person.” -Law interferes with bodily integrity of a woman; forcers her to carry fetus to term unless she meets criteria “unrelated to her own priorities and aspirations” -Violation of “purely physical aspect” of “security of the person.” Also imposes severe psychological stress – law imposes delay and uncertainty, coupled with criminal sanctions. -Therefore, necessary to consider whether the law is consistent with “principles of fundamental justice.” -No need to consider fetal rights in this case, because Parliament itself has determined that fetal rights must yield when life/health of mother in danger (i.e. law itself admits balance tips in favour of mother). -Question is whether procedure is fair. Notes many practical obstacles; many hospitals not accredited, or no Therapeutic Abortion Clinics (TAC). -Therefore, for many women the exception in s. 251 is ‘illusory’; women who would prima facie qualify under section cannot take advantage of it. This violates fundamental justice on procedural grounds. -The POFJ that is violated in this case is PROCEDURAL FAIRNESS -Thus s. 1 analysis comes into play -- Can't be justified under s. 1 b/c means chosen are arbitrary and fail all three elements of Oakes proportionality test. Beetz (and Estey) -Finds breach of security of person in delay occasioned by law. Delay creates additional danger to women’s health – and must be justified. Parliament could be justified in requiring medical opinions as to danger posed by pregnancy but this law goes beyond what is necessary. -Requirement that abortions be performed in hospitals, that there be more then 3 members on TAC, and exclusion of doctors whom perform abortions from TAC unnecessary. -Therefore law violates s. 7 and cannot be justified under s. 1 Wilson • Agrees on right to “security of the person” but goes beyond to rely on the right to “liberty” (Monahan says that her reliance on liberty is a substantive rights argument)
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Liberty includes right to make fundamental personal decisions w/o interference from state. • Underlying theory of Charter is that state will respect choices made by individuals and to greatest extent possible, will avoid subordinating these choices to any one conception of the good life. (p. 681) • Right to terminate pregnancy falls within class of protected decisions. Therefore s. 251 necessarily limits liberty. • That theory of liberty (p. 681) has been endorsed by the majority of SCC in Blencoe (see below). • Wilson J. also finds violation of fundamental justice in a substantive sense. Finds that violations of s. 7 cannot be justified under s. 1 (p. 684). Dissent—McIntyre (and LaForest) • Relies on the fact that legislative debate suggests that right to abortion was not included in s. 7. Remedy: which part or parts of s.251 (now s.287 of the Criminal Code) were declared invalid? The remedy stage is probably the most important stage? Severance wasn’t possible b/c it would make all abortion illegal Here the court’s remedy was to strike down the entire legislation Parliament hasn’t even bothered to amend the criminal code… Ryder likes Wilson’s feistiness here—she had BALLS! Chaoulli v. Quebec (AG) Facts: prohibition of people buying private insurance -The claimants say that the prohibition allows those who can afford treatment to leave the country while those who cannot must be restricted to the government health care system (RICH PEOPLE CAN GET BETTER TREATMENT) Issue: does the public health care system’s failure to deliver timely access to medically necessary services, coupled with legal prohibitions on purchasing private insurance, violate section 7 of the Charter? <THE EFFECT OF THE LAW VIOLATES s. 7> Rule: 4-3 ruling; Deschamps for majority finds violation of s.1 of the Quebec Charter— equivalent to the Ontario Human Rights code (which only prohibits discrimination) -The Quebec Charter goes further than just discrimination -This decision is indeterminate as precedent -The result was that the Quebec legislation is inconsistent with s.1 of the Quebec Charter and therefore the Quebec Charter prevails b/c of a provision that says when there is a conflict b/n a Quebec legislation conflicts with the Quebec Charter, the Quebec Charter prevails -This only sets precedent in Quebec…
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no remedy under the Canadian Charter (since the majority did not find a violation of the Canadian Charter) • violation of life and security of the person prohibition on purchase of private insurance, coupled with lengthy delays in public system causing serious physical and psychological consequences, violates life and security of the person: Deschamps (91); McLachlin and Major (96); Binnie and LeBel (103)
**If the state is going to establish a monopoly on the services of health care, then it must deliver.**
Flora v. Ontario 2007 Ont. SCJ
<THIS CASE DID NOT GET PAST STAGE 1 – S. 7 VIOLATION> -claimant argues that failure of OHIP to fund life-saving liver transplant violates s.7 in Ontario, doctors said the procedure was not suitable for someone at his advanced stage of liver cancer -Flora spent $450K on the procedure in England was denied reimbursement by OHIP; regulation provides right to funding only when treatment is considered appropriate and is unavailable in Ontario -in light of Chaoulli, violation of s.7? -court: no violation of a s.7 interest because the regulation does not restrict patients’ right to secure out-of-country treatment; s.7 creates no positive rights -no active duty to ensure medical services. -S.7 does not pose positive obligations on the state (also from Gosselin) -no state interference with life, liberty or security of the person because the regulation does not restrict patients’ right to purchase out-of-country treatment; s.7 creates no positive rights -in any case, the regulation is not vague, arbitrary or grossly disproportionate to its objectives
Rodriquez v. British Columbia (AG), p.1091
<THIS CASE GETS TO STAGE 2> Facts: -CC s. 241 prohibits assisted suicide -Sue Rodriquez brings challenge on basis of s. 7, security of the person. -Argues that it limits her right to deal w/ her body as she wishes -She was not trying to get s. 241 struck down, she just wanted an exemption Issue: Does the criminal prohibition preventing someone from assisting Rodriguez from choosing when and how she dies infringe upon her s.7 Rights (life, liberty and security of the person)? -SCC unanimously agrees that s. 241 is an infringement of her right to “security of the person.”
Constitutional Law of Canada -Disagreement in case is whether s. 241 is consistent with principles of fundamental justice.
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Rule: Sopinka (majority) thinks it is consistent with principles of fundamental justice. -Relies on Morgentaler reasoning: security of person includes right to make choices concerning one’s own body. -Here the effect of s. 241 is to prevent Rodriguez from making choice about her own bodily integrity -Focuses on distinction btw passive and active forms of assisting/hastening death. Notes that historically, law has distinguished between passive and active forms euthanasia. -Frames issue as one of arbitrariness by asking the following Q: Is the potential arbitrariness consistent with principles of fundamental justice? -Does law further its objective, protection of rights of vulnerable in a non-arbitrary way? Someone could take advantage of the disadvantaged, or act out an earlier made wish after a person had changed their mind. -Argues that there is no consensus that passive/active distinction is arbitrary. Physicians have no choice but to accept a patient’s decision to withhold treatment. “Nothing approaching unanimity with respect to issue before me.” (692-93). Founds his judgment on lack of a societal consensus. [!!!!] <CANNOT ACCEPT THE ARGUMENT THAT ASSISTED SUICIDE SHOULD BE ALLOWED> McLachlin [dissent] (L’Heureux Dube concurring) -Focuses on distinction between suicide and assisted suicide. She agrees that the key question is whether this distinction is arbitrary. Again arbitrary is defined by its Rational Connection to objective behind the legislation. -Turns case into a s.15 case. Argues there is no justification other than floodgates argument. Fear is that disabled persons will be murdered, or pressured to agree to end their lives, and that really this is therefore a s. 1 argument. -Sue Rodriguez is asked to bear the burden of the chance that other people may act criminally in similar situations. She is asked to serve as a scapegoat. (695) It is a utilitarian argument, where Rodriguez is a means to an end, and therefore this should be a s. 1 consideration, NOT a s. 7 analysis. -Also rejects the passive/active distinction—since the end result of death is the same. -Criticizes Sopinka’s consensus argument—Courts are not in position to determine this; Parliament’s job. Courts are supposed to find decisions on principle. NOTE -Case leaves us with an unclear sense of what is meant by principles of fundamental justice, other than arbitrariness concept that requires rationality/fit between purpose and means (s. 1 analysis). -S. 7 protects you not only from actual pain/suffering, but also threat of having actual/pain or suffering inflicted on you (especially if it is absolutely certain).
Constitutional Law of Canada One should not have to wait until one actually experiences/suffers the infringment. See Morgentaler, where Dickson said threat of complications w/ pregnancy was itself s. 7 violation.
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Suresh v. Canada (Minister of Citizenship and Immigration), p.1103
Facts: Former Tamil Tiger claims for refugee status Is denied and scheduled to be deported back to Sri Lanka Files for a new hearing b/c worried about being tortured in Sri Lanka s.53(1)(b) of the former Immigration Act permitted deportation of refugees, even if their life or freedom would be in danger, if they were members of terrorist organizations and the Minister decided they posed a security risk government established that Suresh was a member of the Tamil Tigers; Minister moved to deport him; Suresh sought judicial review, arguing that the Act violated s.7 and that he would be tortured if returned to Sri Lanka Issue: Would deporting him be contrary to the fundamental principles of justice? Should he be able to stay? Rule: -unanimous court holds that deportation to a substantial risk of torture, “barring extraordinary circumstances”, violates the pofj (HUMAN DIGNITY) <THE POFJ BEING VIOLATED WAS PROCEDURAL FAIRNESS> -court says he should have another hearing because it is contrary to Canadian principles of fundamental justice to send him home to torture. -Court said the provision was ok but the implementation of it was a problem. -The principles of fundamental justice include procedural process. -Suresh was denied the opportunity to submit arguments -Oakes line of reasoning that says the governments response is not proportional in the given circumstances. <HE WAS GRANTED ANOTHER HEARING>
Canadian Foundation for Children Youth and the Law, supp. 86
<SPANKING CASE> <THIS CASE MAKES IT TO STAGE 2 – SHOT DOWN FOR NOT BEING A POFJ> Facts: s.43 of the Criminal Code, which justifies the use of reasonable force by parents and teachers for the correction of children Child spanking case Issue: Should child spanking be permitted? Rule: -6-3 ruling upholding the statute
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-7-2 ruling finding no violation of s.7 -Crown conceded that s.43 violates security of the person -McLachlin for majority finds no violation of the pofj; rejects arguments based on: -procedural fairness <CHILDREN CAN CLAIM ASSAULT IF IT HAPPENED> -best interests of the child-not a POFJ -vagueness-to prove this the threshold is so high, clarity is so low—must allow for conclusive legal debate… -overbreadth-no age limit, weapons?, notion of reasonable force… -McLachlin read in a max of 12 years of age, no weapons -There was no debate as to the result of the law, but there was a debate as to the chosen remedy—read down or back to parliament? -ONLY READ IN, IN EXCEPTIONAL CIRCUMSTANCES, MCLACHLIN DID IT HERE ON A WHIM Arbour dissent on s.7 -Deschamps agrees in separate dissent -law is too vague; accuses the majority of “curing vagueness from the top down” by rewriting the law to achieve Charter compliance: “At some point, in an effort to give sufficient precision to provide notice and constrain discretion in enforcement, mere interpretation ends and an entirely new provision is drafted.” (para. 190) -s.1: cannot meet prescribed by law requirement, it is too vague to be prescribed by law (this comes before the Oakes case) -remedy: declaration of invalidity
Life, Liberty and Security of the Person and Human Dignity B.(R.) v. Children’s Aid Society of Metropolitan Toronto, p.1110
Facts: -The appellants' child required a blood transfusion to which they objected on religious grounds. -The Children's Aid Society was granted temporary wardship so that the child could receive the required medical treatment. -The order was then terminated and the child was returned to her parents. The parents argued that provisions of the Child Welfare Act were contrary to sections 7 and 2(a) of the Canadian Charter of Rights and Freedoms. -Parents argue a violation of their liberty interest to make parental choices. Issue: Does the child have rights that trump the liberty rights of the parents? Rule: -Lamer (DISSENT): no threat to physical liberty, parents physical liberty not being threatened, therefore no liberty argument;
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-LaForest (Gonthier, McLachlin—LHD concurred on s. 7 issue): Must first consider whether there has been a s. 7 violation. If so, decide whether it can be justified through principles of fundamental justice -argued that liberty includes rights to make decisions that are fundamental personal importance. Section 7 does apply [Negative liberty argument: freedom from state intervening, as opposed to positive liberty, right to call upon the state to enforce/support a conception of how I want to live]. Relies on Wilson J’s reasoning from Morgentaler – ‘privacy right’ issue. -Decisions about raising children are within this protected sphere (Iacobucci and Major disagree in part, saying that such a liberty can never apply to a decision to deny medically necessary procedure to child). -BUT finds that violation of liberty is in accordance with fundamental justice, b/c procedure was fair—order was made pursuant to procedure in accordance with principles of fundamental justice. -Balancing of child’s and parents’ interests; state has a “parens patriae” interest in protecting rights of child; ultimately, s. 7 analysis has a component of balancing. -Section 7 is violated – intruding on parents’ right to choose, BUT the POFJ was “procedural fairness” – they did have a fair procedure to decide how they want to treat their children, but here it was held that they could not put their child’s life at risk – thus this was not contrary to the POFJ -Iacobucci and Major for 3: liberty does not include parental freedom to make choices that seriously endanger the survival of a child – DID NOT GET PAST STAGE 1
New Brunswick (Minister of Health and Community Services) v. G.(J.)
Facts: parents’ children are taken away for a year CAS tries to extend for another 6 months Parents file for legal aid but are denied due to family law legislation that excludes legal aid from custody matters Issue: do the parents have a Charter argument? Rule: court says that the parents should have equal representation in a matter that is so concerning -Lamer for 6: security of the person implicated; serious interference with psychological integrity; stigmatization, loss of privacy and disruption of family life also amount to a restriction of security of the person – thus s. 7 violated -Principle of fundamental justice: in the circumstances of this case (seriousness, complexity, capacities of claimant), right to a fair hearing required state-funded counsel <POFJ IS PROCEDURAL FAIRNESS AND IT WAS VIOLATED>
Constitutional Law of Canada Not all cases of this nature will give rise to a right to state funded council -It will require a vast array of factors -Where issue is complex -Claimants legal intelligence capacity -This is the leading case on s.7 challenges to the right to state funded legal representation
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Blencoe v. BC, p. 1121
<TEST FOR STRESS AS A S. 7 BREACH> Facts: -Prominent BC cabinet minister, Robin Blencoe, accused of sexual harassment against assistants; they filed complaints w/ BCHRC. -Blencoe dismissed from cabinet, unemployed, had to be put under doctor’s care, moved to Ontario, tried to get work here, could not. -Hearing scheduled 30 months after complaint filed. Blencoe alleges violation of s. 7 rights. Issue: Is the unnecessary delay of the Human Rights Tribunal Hearing that causes, additional stress, an infringement of s.7 with respect to stigma and/or dignity? Rule: -Majority (Bastarache, McL, LHD, Gonthier, Major) affirms broader conception of ‘liberty’ (Wilson in Morgentaler, and LaForest in Re. B and Godbout) as including right to make ‘fundamental personal choices’ – but no violation on facts of this case. -Right to make fundamental choice not infringed by suffering allegations. -On ‘security of person’, affirms that severe psychological stress may involve breach of security of person. However, deprivation must be caused by state action; here delay was not primary cause of stress, the allegations themselves and accompanying media coverage (much of which occurred before delay) was real cause. -Blencoe argues that delay exacerbated his stress, but Court says that psychological stress can only involve breach of security if it involves interference with fundamental personal choices. Only in exceptional cases (Rodriguez, Morgentaler, Re. B—decisions about one’s body or custody of one’s children) but stress, anxiety, and stigma that result from administrative civil procedure are not included. -Fundamental choices are under Wilson’s definition of liberty, but in terms of security of the person, stress is also affected by a limiting of fundamental choices <HIS FUNDAMENTAL CHOICES WERE NOT BEING LIMITED> (i) Two Limits to Claims Based on Psycho Stress: (1) Deprivation must be caused by state action –here the delay was not the cause of the stress (allegations were the cause; wasn’t induced by the state) [Blencoe then argued the delay exacerbated his stress]
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(2) Psycho stress can only involve breach of security if it involves interference w/ fundamental personal choices. It’s only in exceptional cases where state interferes w/certain personal choices of an individual that state-caused delay in HR proceedings could trigger the s.7 security of person argument
Section 7 and the Litigation of Poverty
Positive Obligations -The SCC has not yet accepted that sotp places positive obligations on the state to ensure an adequate level of social assistance to meet basic human needs, although it has left the door open slightly to the possibility of such recognition in the future
Gosselin v. Quebec
Facts: Louise Gosselin brought this action on behalf of all welfare recipients under the age of 30 in Quebec. Welfare benefits; 2 tier – those under 30 yrs of age got fraction of benefits paid to those over 30, unless they participated in incentive programs -McLachlin for majority: s.7 not yet held to impose positive obligations on the state; evidence of actual hardship here insufficient to “warrant a novel application of s.7” (80) the court is extremely reluctant to impose positive obligations on the state with respect to socio-economic matters. -Arbour dissenting: security of the person includes a positive right to state assistance in meeting basic needs—mind you this is the dissenting judgment.
R. v. Banks
Facts: charged under the Safe Streets Act for squeegeeing Appellants claimed the legislation was criminal in pith and substance (Prohibition, penalty and social evil) Issue: is there a s.7 argument available for the squeegee people Rule: court ruled against the squeegee people. -liberty is implicated since conviction can result in a prison sentence -POFJ – Squeegeers were arguing that the POFJ was VAGUENESS and the law was too vague, thus not in accordance with POFJ -pofj: arguments based on vagueness and overbreadth rejected Ryder: the courts have been reluctant to promote issues affecting those in poverty through the constitution
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Charkaoui SCC 2007 Facts: challenge to the validity of the security certificate provisions of the Immigration and Refugee Protection Act; one of three appeals heard by the SCC (see also Harkat; Almrei) - provisions empower Ministers to issue certificates detaining foreign nationals or permanent residents on security grounds - reasonableness of detention must be confirmed by Federal Court judge within 48 hours (for permanent residents) or within 120 days (for foreign nationals) - Government’s evidence need not be disclosed to detainee or lawyer - if sec. cert. upheld as reasonable, then detainees may be deported - Charkaoui, Harkat and Almrei fighting deportation on grounds that it will expose them to a substantial risk of torture - unanimous opinion written by McLachlin CJ strikes down parts of the legislation Rule: SOTP: not because of deportation itself (paras.15-16) because non-citizens do not have absolutee mobility rights (s.6) - POFJ : is procedural fairness, which comprises : 1) Right to a hearing before an independent and impartial tribunal; 2) Right to a decision based on the facts and the law; and – b/c withheld evidence 3) Right to know the case against oneself and the right to answer that case – denied knowledge of case against them 2) and 3) not satisfied violations of s.7 reasonable limits under s.1? - violations of s.7 difficult but not impossible to justify under s.1 (para.66) - objective: protection of national security - rational connection between non-disclosure of evidence and objective - minimal impairment: special counsel would better protect detainees’ interests without compromising security (para. 86) remedy - security certificate provisions declared invalid; declaration of invalidity suspended for 1 year in order to give Parliament time to amend the law
Equality Rights – s. 15
(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. (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.
Ultra-Basic Test • To infringe s.15, the law must: o Directly, or by indirect effect differentiate among individuals or groups, o On a enumerated ground (ground that is listed), o In a manner that “discriminates”
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•
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There are two types of discrimination claims: o 1 – Direct A law which, on its face, discriminates (Gosselin, McKinney) Assigns benefits or burdens based on an ground o 2 – Indirect A law, which is neutral on its face, that applies equally to everyone, but whose effect is to disproportionately exclude on an enumerated or analogous ground This is where most rule are now being tested *NO need to prove intent to exclude, only disproportionate effect Most claims fall under ‘equal benefit’ and protective claims – underinclusive
Early Interpretation and Application of Section 15: The Andrews Test Andrews v. Law Society of British Columbia, 1989
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Facts: Andrews, a British citizen permanently residing in Canada met all the requirements for the provincial bar except that he was not a Canadian citizen. He brought a motion to strike down the requirement, claiming it was a violation of his s.15 rights Held, the Law Society rule violated s.15 and it could not be saved under s.1 o This case limited future challenges, by holding that the complainant would have to link the challenged laws to personal characteristics associated with common prejudices, stereotypes or patterns of disadvantage (listed or analogous ground) o Set out a test that is no longer followed requiring: A distinction in treatment; That results in the imposition of a burden or denial of a benefit; On the basis of an expressly prohibited or analogous ground Section 1 – fails on 2nd leg, though decent objectives, invalidated under proportionality Lavoie v. Canada, 2002 → citizenship found to be sufficiently important objective o Less stringent approach to section 1 more like McIntyre’s dissent, than Wilson’s maj.
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Law v. Canada, 1999
• Law was a widower who was denied pension benefits due to her age. o ISSUE: "whether ss. 44(1)(d) and 58 of the Canada Pension Plan infringe s. 15(1) of the Charter on the ground that they discriminate on the basis of age against widows and widowers under the age of 45, and if so, whether this infringement is demonstrably justified in a free and democratic society under s. 1?” Held, the court was unanimous in holding that s.15 was not violated o Law was unable to demonstrate that either the purpose or the effect of the impugned provision violated her human dignity so as to amount to discrimination based on AGE The court noted that challenged legislation simply reflected the fact that people in the Law’s position are more able to overcome long-term need because of the nature of the human life-cycle
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“Parliament is entitled, under these limited circumstances at least, to premise remedial legislation upon informed generalizations without running afoul of s.15(1) and being required to justify its position under s.1” – They can have general laws related to age without them being discriminated The law does not reflect that the “appellant is undeserving or less worthy as a person, only that the distribution of the benefits to her will be delayed until she is at a different point in her life cycle”
Law TEST
1(a) – the law itself draws a formal distinction between the claimant and others on the basis of one or more personal characteristics (e.g. Blacks are not allowed to drive) a. Does impugned law draw formal distinction btw the claimant and other based on personal characteristics (enumerated or analogous)? OR LOOK for unequal treatment between citizens in the sense of inequality before or under the law, or unequal benefit or protection of the law a. Formal distinctions: • McKinney, Law → based on age • Corbiere → based on whether band members lived on or off reserves • Andrews → between citizens and non-citizens 1(b) – the law fails to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantially differential treatment between the claimant and others on the basis of one or more personal characteristics (the law discriminates in its EFFECTS) o Akin to indirect/facially neutral discrimination (purpose vs. effect – Eldridge) o The distinction will not be readily apparent by looking at the text of the law o The most common examples are blanket rules that have an exclusionary effect because they do not acknowledge or accommodate people’s real differences – eg: Failure to accommodate deafness – Eldridge Disparate impact on heterosexuals and non-heterosexuals of exclusion of “sexual orientation” as a prohibited ground of discrimination – Vriend • Step 1 is a comparative exercise • Claimant chooses the appropriate comparator group • The court may refine the comparator (Law) • The court may also reject the suggested comparator, which might defeat the claim 2 – Subjects the claimant to differential treatment based on one or more enumerated and analogous grounds (HOW does it discriminate) o The enumerated grounds function as legislative markers of suspect grounds for differentiating among citizens, grounds associated with stereotypical, discriminatory decision-making (Andrews) o Analogous grounds serve as similar markers LOOK for grounds of historic disadvantage, marginalization, stigmatization, lack of political power and group stereotyping May represent personal characteristics that are immutable (race) or changeable only at unacceptable personal cost (religion, sexual identity)
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Once the SCC has recognized an analogous ground, it presumably does not have to be proved again (Corbiere) Analogous grounds recognized by the SCC: • Citizenship – Andrews, Lavoie • Marital status – Miron • Sexual orientation – Egan, Vriend • Aboriginality, off-reserve – Corbiere o Just because something is found to be an analogous ground does not automatically mean there has been discrimination (Corbiere) 3 – Has a substantively discriminatory effect in the sense that the differential treatment imposes a burden upon or denies a benefit from the claimant in a manner in which reflects demeaning, discrediting or prejudicial group stereotypes; or perpetuates or promotes the view that the claimant is less capable or worth of recognition or value as a human being or member of Canadian society equally deserving of concern, respect and consideration a. In determining whether the impugned legislation has one or more of these discriminatory effects, the court uses a mixed subject-objective test: i. It takes the perspective of the reasonable person in similar circumstances who takes into account the context of the claim (Law) ⇓ Contextual Considerations: Iaccobuci laid out four factors to be considered when determining whether the law demeans the claimant’s dignity (a) Pre-existing disadvantage, prejudice, or vulnerability experienced by the individual or group in question; (b) Whether the distinction corresponds with differences based on actual needs, (in)capacities or circumstances of the claimant class (is there a link between the claimed grounds and the claimant’s actual need/capacity?) • *Remember: mere differentiation isn’t suspect; only differential treatment that reflects or reinforces second class status and thereby fails to respect the equal dignity of all • *Where there is a distinction drawn that protects the most vulnerable, it will be difficult for more advantaged persons to challenge the law as discriminatory (Law) (c) Whether the purpose of the impugned law is ameliorating historic or existing disadvantage • If it excludes disadvantaged groups in need of the same remedial benefits, it probably infringes
(d)
nature and scope of interest affected-more severe and localized on the group the more likely it’s discriminatory.****After this you go to the Oakes test • Where the law restricts access to a fundamental social institution (medicare, family law mechanisms, family or spousal recognition) or affects some basic aspect of personhood (human rights code protections), it will infringe Court is kind using the contextual approach – if the law is really heavy-handed, if the difference between the burdens and benefits is extreme and people sharply affected, the more likely the court will look into it.
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1. Differential Treatment (May be “direct” (on the fact of the law), or “indirect’ (the adverse effect is discrimination).
Eldridge v. B.C., [1997] 3 S.C.R. 624 (Adverse effects)
Sign language interpreters; governed by the statute hospital insurance act (Decided before the law test): Facts: A women was delivering a baby and couldn’t communicate with doctors because there was no sign language interpreter. Issue: Was a s. 15 violation? Analysis: Once the gov’t implements a program it can’t discriminate on any grounds, it was held that when the government is trying to furnish a range of medical services it has to make sure that those services do not discriminate on any grounds. It discriminates in its effects as well, as communication between a patient and doctor was part of the parcel of the medicare benefit. With no service provided those incapable of communicating will be subject to adverse effects - government argued that the Charter doesn’t apply to inaction from taking steps – this was held to be insufficient Decision: the gov’t has to make sign language interpreters available While s.15 has never been held to impose positive obligations on the state, once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner • “In many circumstances, this will require governments to take positive action, for example, by extending the scope of a benefit to a previously excluded class of persons” -Thus s. 15 was held to be violated Section 1 • Court held that it could not be justified under s.1 • “The government has manifestly failed to demonstrate that it had a reasonable basis for concluding that a total denial of medical interpretation services for the deaf constituted a minimum impairment of rights – 2nd stage of the of Oakes proportionality test” • The government was given six months to ensure that such services would be provided where necessary Therefore the gov’t can violate by not doing enough and be held responsible under s. 15 for doing something that’s not enough.
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Vriend 1998 SCC
The rule or omission may be neutral on its face, but not in its effects -- 1 (b) Every disadvantaged group except gays and lesbians had access to mechanism to prevent discrimination – sexual orientation was NOT an enumerated ground, so it was added as an analogous ground - Everyone has a sexual orientation, but NOT everyone is equal to do anything about it o Heterosexuals did not face a similar disadvantage – thus there was an s. 15 violation - Iaccobuci held that this case failed all part of the Oakes test, so could not be saved by s. 1 Question: Does s. 15 confer positive rights? There is no obligation on the state to deliver benefits to people in need, when governments choose to act and implement a program that delivers benefits or services, it has obligation that those services are delivered in a non discriminatory fashion. Therefore results are usually to extend the scope of services that the government already provides. Recognized analogous grounds (only 4 raised so far) • Sexual orientation (Egan; Vriend; M v. H; Hislop) • Marital status (Miron; Walsh; Hodge) – discrimination between unmarried and married couples, and difference of treatment with common law couples • Citizenship (Andrews,; Lavoie ) • Aboriginality-residence (Corbiere) – a analogous grounds, living on reserve or off reserve but still part of a band -
Hodge v. Canada, [2004] 3 S.C.R. 357
Facts: A challenge to the provisions of a pension plan, whereas the survivors pension was available to separated married spouses but not common law separated spouses. Claimant was claiming that he was being unfairly treated on the basis that he was not married. The Claimants used the comparator group of separated married spouses, but court said the right comparator group was divorced married spouses. Test for Comparator Group: The comparator group must posses the same characteristics that are relevant apart from the claim of discrimination. Ratio: former common law spouses and divorced spouses are treated the same, therefore it doesn’t trigger a charter claim under s. 15, as they are both treated the same.
Auton v. B.C. (Attorney General), [2004] 3 S.C.R. 657
Constitutional Law of Canada
106
Facts: Challenge to the BC government to fund behavioral therapy for autistic children aged 3 – 6. Claimants asserted the proper comparator group was non disabled children or adults with mental illness. However the court held the right group was a non autistic person seeking funding for a non core therapy which is emergent or only recently becoming recognized as medically required. Decision: Court rejected the challenge stating they were not treated differently. Analysis: two reasons McLachlin J dismissed the claim: 1. “Non-core services” not a benefit provided by law (131-4); 2. Differential treatment not established -The treatment at issue was not established to be useful at the time, it was still controversial. So the comparator group has to take that into consideration and compare them with other non-core therapies whose effectiveness is uncertain.
Wynberg 2006 Ont CA
Facts: Challenge to limitation of funding for intensive behavioral intervention for children aged 2 -5, claimants are parents of children aged 6 and over. Claimants wished the comparator group to be children aged 2 -5 and able bodied children over the age of 6, they claimed there was a discrimination based on age and on the basis of disability. The government didn’t give autistic children over the age of 6 help Analysis: the claim failed at the 3rd step of the law test, since they were focusing resources to the age group it was proven to help, i.e. kids under the age of 6. Additionally, the failure to provide intensive therapy for children who were school aged, the wrong comparator group was used, according to the court, it should have been other disabled children over the age of 6
Hislop 2007 SCC
Facts: Challenge to the limitation of survivor benefits under the Canadian Pension Plan to persons whose same sex spouse died after Jan. 1, 1998. Claimant argued that limitation of same sex survivors violated his s. 15 right. Analysis: What is the appropriate comparator group? Claimants say comparator groups should be between same sex survivors and opposite sex survivors whose spouses died before 1998 -Gov’t says comparator groups should be same sex survivors whose spouse died before Jan. 1, 1998 and same sex survivors whose spouse died after that date. Decision: The difference of treatment is based on date of death, there is no difference of treatment on prohibited grounds, as s. 15 only protects the most vulnerable. Thus, they agree that discrimination is present but not discrimination that s. 15 regulates
Constitutional Law of Canada
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2. Enumerated and Analogous Grounds Corbiere v. Canada, [1999] 2 S.C.R. 203
Facts Members of the Batchewana Indian band sought a declaration that a section of the Indian Act, which precluded members living off the reserve from voting in band elections, violated s.15(1) Decision: Held, in the unique situation of Aboriginal culture, off-reserve residence was a valid analogous ground • Human dignity was impaired because the different treatment of off-reserve band members implied that they were “lesser members of their bands or persons who have chosen to be assimilated by the mainstream society” • This case discusses analogous grounds o All enumerated or analogous grounds “often serve as a basis for stereotypical decisions made not on the basis of merit, but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity” – e.g. religion – it would be an unacceptable cost to change my religion Italicized phrase more or less = immutable o Also look to see whether the characteristics are involuntarily inherent, as opposed to behaviour
3. Discrimination M v. H, [1999] 2 S.C.R. 3
Same sex relationship with economic dependency. M wants support from the Ontario Family Law Act; definition of spouse Challenge to exclusion of same-sex spouses from right to claim support on the breakdown of a common law relationship. The difference in treatment on a prohibited ground Facts: M and H, a same sex female couple, cohabitated from 1982 – 1992. After their business failed, H was able to find employment, but M was not. M commenced an action against H for spousal support, asserting that s. 29’s definition of “spouse” in the Family Law Act was unconstitutional by virtue of its exclusion of same sex couples. The court sought to determine whether the definition of “spouse” amounted to discrimination – 3rd part of Law test. Decision: DISCRIMINATION WAS FOUND IN THIS CASE -The legislation fails all three parts of the Law test as well as s.1 • The court held that the provision failed the first two sections of the Law test – differential treatment on an enumerated ground
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Turning to the four contextual factors from Law, the court finds that there is a significant pre-existing disadvantage and vulnerability and these circumstances are exacerbated by the legislation o The legislative provision in question draws a distinction that prevents persons in a same-sex relationship from gaining access to the courtenforced and protected support system Turning to the third factor, the court rejects the idea that the allegedly ameliorative purpose (helping women in married or opposite-sex relationships) of this legislation does anything to lessen the charge of discrimination in this case Section 1 o The exclusion of same-sex couples was not rationally connected to the objectives of “the equitable resolution of economic disputes arising form the dissolution of intimate relationships” and the alleviation of the burden on the public purse by shifting the obligation of support to the parents or spouses who have the capacity to do so -Thus fails section 1 of the proportionality test
REMEDY: The court struck down the offending provision (s.29) subject to a six-month delayed declaration of invalidity. Instead of reading in same-sex couples, the court distinguished Vriend. Here, reading in s.29 would have had significant repercussions for a separate and distinct scheme under the FLA. Therefore, it is not safe for the court to assume that this is the path that the legislation would have taken. Striking down the entire FLA would be excessive: since the offending provisions are not so inextricably bound up with the non-offending that they cannot independently survive, it is safe to assume that the legislature would have passed the sound parts without the unsound parts. Therefore, severing s.29 of the FLA (declared of no force and effect) temporarily suspended for six months: the suspension is necessary to give the legislature time to devise its own approach to solve the unconstitutionality of the FLA and of other Acts which use similar offending definitions of “spouse”. The legislature is better suited to address these issues form both a financial and a democratic point of view.
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Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429
Facts: Louise Gosselin brought this action on behalf of all welfare recipients under the age of 30 in Quebec. Welfare benefits; 2 tier – those under 30 yrs of age got fraction of benefits paid to those over 30, unless they participated in incentive programs
Constitutional Law of Canada Issue: Is this age based differential treatment a violation of s. 15(1)?
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Rule: Found there to be no breach of s. 15(1). Examined the issue from the perspective of a reasonable welfare recipient who is under 30 years old – ask, would this reasonable young welfare recipient think the program is reasonable? -The court argued that the reasonable welfare recipient would like to receive less welfare in exchange for incentives that would help them get a job -Whether or not a reasonable person in circumstances similar to that of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning the claimant’s dignity? -In the Majority’s view, this government program enhanced their dignity; it did not detract from it. The Majority said the purpose of the program was to get unworking young people back on their feet -Haigh says: “reasonableness” does not need to be imbued in s.15(1) – that is what we have a sec 1 analysis for because of the contextual factors raised in the Law Test, reasonableness enters the s. 15(1) analysis – this makes it increasingly like an Oakes analysis creeping into this case -idea of reasonableness is now express in s.15(1) analysis. Rejected in Andrews; implied in Law via the dignity concept. -welfare in Quebec, less $ for younger persons, not discriminatory since getting a job will aid dignity McLachlin for majority: s.7 not yet held to impose positive obligations on the state; evidence of actual hardship here insufficient to “warrant a novel application of s.7” (80) the court is extremely reluctant to impose positive obligations on the state with respect to socio-economic matters. Arbour dissenting: security of the person includes a positive right to state assistance in meeting basic needs—mind you this is the dissenting judgment. Note: Canadian Foundation for Children, Youth and the Law v. Canada <SPANKING CASE> • s.43 of the Criminal Code upheld in 6-3 ruling • imposes differential treatment on the basis of age is it discriminatory? • McLachlin for majority finds no violation of human dignity even though three of the contextual factors lean in that direction (para.56) for the majority, the correspondence factor is determinative: s.43 “responds to the reality of [children’s] lives by addressing their need for safety and security in an age-appropriate manner.” (para.51) • Arbour dissent: did not address s.15 • Binnie dissent: s.15 violated; s.43 a reasonable limit for parents, not teachers (123) • Deschamps dissent: s.15 violated; s.43 cannot be upheld pursuant to s.1 as it does not minimally impair children’s equality rights and its negative effects are disproportionate (124)
Constitutional Law of Canada
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Section 15(2): Affirmative Action Lovelace v. Ontario, 2000
(Affirmative Action) • Plaintiffs were a group of non-registered First Nations bands (Métis) who were status Indians. They applied for a declaration that they were entitled to share in the profits of Casino Rama. The trial judge sided with the plaintiffs and the Ontario Government and Chiefs of Ontario appealed. Held, the court was unanimous in their decision that the appellants failed to demonstrate that, viewed from the perspective of the reasonable individual, in similar circumstances, the exclusion from the First Nations Fund had the effect of demeaning the appellants’ human dignity o Iacobucci concluded that the appropriate comparison group was between the situation of band and non-band Aboriginal communities The court then considered the four contextual factors o 1 – Pre-existing Disadvantage, Stereotyping, Prejudice or Vulnerability Appellants failed to establish that the First Nations Fund functioned by device of stereotype • The fund does not conflict with the purpose of s.15(1) and does not engage the remedial function of the equality right o 2 – Correspondence to Needs, Capacities and Circumstances Focuses on the partnered relationship between First Nations bands and the government While the non-band groups have similar needs of economic development, etc, the court stresses the specific aims of the program o 3 – Ameliorative Purpose Both claimant and targeted group are equally disadvantaged Dealing with a targeted ameliorative program which is alleged to be underinclusive “The First Nations Fund has, therefore, a purpose that is consistent with s.15(1) and the exclusion of the appellant does not undermine this purpose since it is not associated with a misconception as to their actual needs, capacities and circumstances” o 4 – Nature of the Interest Affected ???
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Manitoba
• How did parliament obtain power to create Manitoba in 1870 with the Manitoba Act? They didn't have the power until Constitution Act 1871. See s. 4, regulating powers over land that is part of Canada but not a province. S. 5 declares retroactively valid the Manitoba Act. s. 23 Manitoba Act. C.A 133.
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Patriation
• • • Once patriation takes place, Imperial law can no longer simply declare Colonial laws (i.e. Manitoba laws) to be valid. S.43 allows amendment of the constitution by proclamation of the Governor General and approval of two federal houses and the assembly of the province in question (of course the assembly of Manitoba is in this case invalid). An amendment was worked out such that future legislation would be bilingual but the previous legislation would be valid retroactively (temporary validity) without having to be translated. Circularly, this made the provincial assembly valid, which allows for use of section 43(45?). Case had to be heard by the Supreme Court directly from the Provincial Magistrate, because the Court of Appeal did not exist prior to 1908. Case had to be argued without using any unilingual acts.
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Re Manitoba Language Rights [1985] 1 S.C.R. 721 (P371)
Supreme Court of Canada
• • • • Constitution Act, 1867 s.133: Acts of the legislature shall be printed and published in both English and French. Manitoba Act, 1870 s.23: Almost same wording as the Constitution Act, 1867 s.133. Entrenches s.133, creating manner and form requirements for future legislation. Manitoba enacted the Official Language Act, 1890: Notwithstanding any statutes or laws, Manitoba is going to use only English in their Acts and records. An Act Respecting the Operation of s.23 of the Manitoba Act in Regard to Statutes, 1980 (ARO23MA) s.4(1): Legislation introduced in one Official language would be translated into the other language after enactment and the translation would have the same force and effect. Questions put to the court: Are the requirements of s.23 and s.133 mandatory? (A: Yes) Are statutes and regulations not printed and published bilingually invalid because of s.23? (A: Yes, but they are temporarily valid until translated.) If invalid, do they have any force or effect? (A: Yes, because of temp. validity) Are any provisions of ARO23MA inconsistent with s.23, and of no force or effect? (A: If ARO23MA was not printed and published bilingually, it is completely invalid and of no force or effect. Either way, ss.1-5 are invalid and of no force or effect because they are at odds with s.23 in purporting to authorize: o Unilingual enactment, with translation later. o Enactment of a translation by certification and deposit with a clerk of the house, giving force of law without royal assent by Lt. Governor. o Resolution of ambiguities by reference to text in one language, while texts are supposed to be equally authoritative. Even though Manitoba laws were deemed to be of no force and effect, they were saved by the de facto doctrine and rule of law, and given temporary validity. The de facto doctrine gives effect to expectations of those who relied upon invalid laws. Rule of law allows for measures, such as temporary validity, to be taken in order to avoid legal chaos.
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