CONSTITUTIONAL FINAL

FEDERALISM AND CRIMINAL LAW

Federal Jurisdiction Provincial Jurisdiction

s.91(27): The criminal law

s.91(28): the establishment, maintenance, and management of penitentiaries (2 yrs +)

s.91(3): Tax: can create regulatory offences (price fixing and tax)

s.91(2) Trade and commerce

s.92(6): prisons

s. 92(15): fines/penalties for enforcing provincial laws (only attaches to subject matter within the province’s jurisdiction limiting factor). These are regulatory

offences, not crimes

s. 92(14): administration of justice, provincial courts (civil and criminal) – staff, provincial police, probation

officers and administration

s. 92(13) and (16): statues such as Motor vehicles Act and liquor control can create regulatory offences

Criminal law

Criminal offence (criminal code)

Regulatory Offence(Federal or provincial)

PATA 1932: new progressive definition: focus on the legislation’s form criminal quality cannot be found through intuition, only through: Is the act prohibited by penal consequences?)

“Margarine” Reference Re s. 5(a) of the Dairy Industry Act 1949 SCC

Facts/Issues

Act prohibits the sale/ manufacture/importing of margarine in Canada, the object of the law is economic and to give trade protection to the dairy industry

Issue: tried to rely on PATA, where there was no moral taint requirement, it was only about the form of the law

Held The law was ultra vires the federal government, while it contained punitive provisions, it was not criminal law

It is economic legislation, although this can be a criminal law in a different situation.Rule/Law

Additional element for a provision to be criminal:1. prohibition2. penalty3. Criminal Law Public Purpose (in relation to public peace, order, security, health, or morality not exclusive list)Note: no test for what is a typically criminal public purpose.

Application P&S was to protect the dairy industry from competition Property and civil rights of the province.

RJR-Macdonald Inc v Canada(AG) 1995 SCC** see in freedom of expression as well **

Facts/Issues

The Tobacco Products Control Act prohibits the advertisement/promotion of tobacco products in Canada. Cautionary messages have to be placed on all packaging. Punishment was fines or imprisonment.

RJR’s arguments It has never been criminal before smoking is inherently legal, so can’t criminalize without criminalizing the act itself. Regulatory, not criminal, because it has exemptions

Issue: Is it a valid exercise of the criminal law power? Some legitimate public purpose must underlie the prohibition

this was not commonly recognized/traditionally as being criminal in nature note that the living tree doctrine allows the creation of new crimes

Held (7/2) It is valid criminal law, but ultimately strikes down the legislation as a violation of freedom of expression.

Rule/Law Test1. prima facie criminal law if there are penal sanctions accompanying the prohibition

2. Underlying criminal purpose; is it directed at an “evil” or injurious effect on the public

3. not otherwise a colourable intrusion on provincial jurisdiction

Application This legislation meets all stages of the test

P&S: purpose of protecting Canadians from a harmful and dangerous product. Distinguished from Margarine reference where p&s was regulating the dairy industry

Rebutting RJR’s arguments: the reduction of consumption and protect public health is a valid public purpose ancillary activity can be illegal (of a legal activity), can take lesser measures parliament doesn’t have to go the most direct route, has done so before: prostitution and assisted

suicide criminal law can have exemptions, they don’t invalidate the criminal law nature of the statute:

Morgentaler. They can be used as a drafting tool, a way to draft the contours of the crime

Note In Morgentaler, the fact that the traditional character used to be criminal and was decriminalized, raised a prima facie argument that the province was legislating under criminal law.

Here, the court holds the opposite is not true! If it has never been criminal before, it is not prima facie not criminal

DissentMajor/Sopinka

Held: not valid criminal law, it is a regulatory measure: too far removed from the undesirable effects of tobacco.

Use of RJR’s Arguments: There is no affinity here to criminal law (reverse of Morgentaler) The ancillary actions here (advertising) are not illegal in other situations There is a large degree of exemption: foreign advertising is allowed. It undercuts the criminality of

the legislation: there is no rational for the exemptions, so the dissent views this exemption as fatal. They argue for a spectrum of harm and risks (not all are grave enough to qualify as criminal)-

** This standard is not picked up by the majority. So long as sale/manufacture of tobacco remains legal, this standard is not met.

R v Hydro Quebec 1997 SCC** In what circumstances will the criminal law power sustain the establishment of a regulatory scheme in which an administrative agency exercises discretionary authority?

a question of form: is it close enough to the paradigmatic “prohibition with a penalty”? Facts/Issues

Quebec Hydro was charged with a violation of restricting emissions. Under the law, ministries gather information to put substances on the priority list (then to cabinet). Once on the list, cabinet has extensive power to regulate the substance.[the offence was defined by regulation after consultation with many parties]

Issue: are the two provisions valid criminal law? (not typically how criminal behaviour is defined- stretches the formal constraints of criminal law)

The government defended the law under POGG and Criminal Law

- argument that it was about managing corporate behaviour (administrative)Held (5/4)La Forest

It is valid criminal law, no need to address POGG

Rule/Law 1. Prohibition backed by penalties2. a legitimate public purpose (test for colourability)

Application P&S is directed at the public evil, prohibits harm to the environment (the protection of the environment and human life by regulating these substances)

The environment is a legitimate public purpose- parliament’s intent is to only regulate dangerous substances

Balance of federalism concerns: international dimension of the problem, if provincial jurisdiction was so enormous, then federal government could not assert leadership.

The environment is concurrent

DissentLamer

Held: the impugned provisions fall short of the criteria for criminal law; they are more an attempt to regulate environmental pollution than to prohibit or prescribe it. would not uphold under POGG either

DOES agree that the protection of the environment is a legitimate criminal law purpose BUT here, the regime crosses the line from criminal into regulatory

Elaborate administrative process indicates a regulatory regime. The administrative process is extensive and central

CONCERN: crime is at the discretion of the executive, rather than parliament

**When does legislation cross the line from criminal to regulatory? Consider:A. Nature and extent of the regulation it creates (the more elaborate the more likely it is regulatory)B. Context within which it purports to apply (there is no offence until an administrative agency intervenes)Notes: equivalency provision; province can be exempted if they have equivalent provisions- unusual for criminal law, because it cannot be enacted by the province. Suggests that it is concurrent, however federal cannot trample)

Reference Re: Assisted Human Reproduction Act 2010 SCC Facts/Issues History: back to 1989, unregulated reproduction technologies

leads to the Baird Commission [1993 issues recommendations: mix of prohibitions and regulations] 5 legislative attempts to pass an act on this, 2004 AHRA is passed (considered the most comprehensive pieces of legislation in the world)BUT: Quebec has some statutes in this area, and challenges the law

Federal government decided to rely solely on criminal law.Key provisions:s.2: sets out guiding principles (benefits can be secured through protection measures)ss.5-9: lists prohibited activities (cloning, sex selection, payment for surrogacy are not contested) (s. 8 removal of human reproductive material w/o consent, and s.9 obtaining sperm from a minor are contested)ss.10-13: list controlled activities (“no person shall except in accordance with the regulations and a licence” and on licences premises). Ex. Provincial research will be subject to federal regulations quebec’s argument.

Held McLachlin + 3: upheld the act in its entirety under Criminal Law. It consists of absolute prohibitions (for reprehensible actions) and qualified prohibitions (for reprehensible outside licence) to safeguard morality- broad frameLeBel and Deschamps +2: Act is ultra vires the Federal Government, the matter falls within exclusive provincial jurisdiction over health ectCromwell: disagrees with both results, can’t accept it is all criminal, nor that it is about the regulation of a health service (is broader). It is about the regulation of all aspects of research, which falls under provincial jurisdiction (as per LeBel’s reasons). Would uphold 8 + 9, 12.

Application Agreement: these provisions satisfy the formal requirement of the Margarine Reference test (prohibition

+ penalty).Disagreement: the purpose of the provisions.1. What is the p&s ?2. How they view the criminal law power (the test), prohibiting evil v beneficial3. Role of the Baird Commission

McLachlin + 3P&S: prohibition of negative practices associated with negative practices p&s of the whole actCriminal Law power: it is plenary, there is no distinction between prohibiting evil and promoting beneficial effects- criminal prohibitions create beneficial effects and we should expect them to, so this is an artificial distinction.

AHR is a distinctive issue, not like other health developmentsBaird Commission: can’t read parliament’s intent into the reportAncillary Powers Doctrine: Kitkatla sets out a general rule: look at impugned provisions first. However, If the impugned provisions make up the bulk of the statute, you have to look at the whole thing firstPrinciple of Subsidiarity: It is not something that will change the proper federalism analysis. It will not, on its own, preclude the more removed level of government from regulating within its field of power.

LeBel and Deschamps +2P&S: regulation of AHR as a health service, this has nothing to do with regulating morality p&s of the specific provisions being challenged.Criminal law power: articulates an additional component to the criminal law power. Argues the power has gone too far, enabling the federal gov. to make any laws, by going back to PATA, where all that matters is the form. The test should include: real evil (“reasoned apprehension of harm”) or injurious effect on the public (supressing this has to be a public purpose)

This law is about encouraging behaviour rather than discouraging it, the regulation of beneficial conduct and the prohibition of bad things are very distinctive

Says that AHR is just like other health technologiesBaird Commission: The government has just accepted what the report saidAncillary Powers Doctrine: Must follow the general rule from Kitkatla, look at impugned provisions first.Principle of Subsidiarity: it can be used as an interpretive device (where there is doubt about a law’s classification) to favour the provinces.

CromwellP&S: regulation of all researchdisagrees with both results, can’t accept it is all criminal, nor that it is about the regulation of a health service (is broader). It is about the regulation of all aspects of research, which falls under provincial jurisdiction (as per LeBel’s reasons). Would uphold 8+9, 12.

Ultimately Act has been upheld with certain provisions struck down. (8,9,12 are upheld as Cromwell holds)Hogg: there is a void where some provinces have not legislated in this area. there is ambiguity of the holding (like Anti-inflation, Natural Parents)

NOTE: this case has enunciated a higher standard for the criminal law power. Government will want to adhere to standard of a real evil and apprehension of harm. However, it is a split so there are arguments available on both sides.

CRIMINAL LAW FROM THE PROVINCIAL PERSPECTIVE Where is the line between a valid provincial law with an ancillary penalty and a provincial law that is invalid as

being in P&S criminal law?

Mechanisms for recognizing local interests:s.92(14): administration of justice (criminal law is provincially enforced)

space carved out for provincial schemes (ex. Lottery)s. 92(15): Can impose penal sanctions, but only when they are anchored in provincial jurisdiction (regulatory offences, not crimes)

recognition of concurrency, allows for a fair amount provinces sometimes exceed (Westendorp, Morgentaler) when it can’t be anchored

NS Bd. Of Censors v McNeil 1978 SCC Facts/Issues

Movie is banned under NS Theatre and Amusement Act, where a censorship board for licensing and regulating the showing of films has unfettered power to permit or prohibit films.

Non-compliance resulted in fines and revocation of theatre owner’s licenceMcNeil argued that the act was ultra vires the provincial power, since it was criminal law.

Held It is not criminal law, it is under the regulation and control of a local trade (the film business), and is intra vires the province [s.92(13) and s.92(16)]

Rule/Law A system of prior restraint is the power to deny a form of expression before it is expressed. This leans more towards provincial power, rather than the punishment of crimes which is federal.

Criminal morality v local moralityApplication The board is concerned with regulating a business within the province, not with the punishment of a crime.

It is preventative rather than penal (distinction between legislation to punish crimes: federal v legislation supressing situations that will lead to crime: provincial)

Dissent The determination of what is decent is in the domain of the criminal law. The province’s authority can extend to objects of moral considerations, as long as the objects are in the provincial powers and not in conflict with federal law. This is intruding on the federal power (indecency). These rules are not just preventative legislation, are penal, can lead to theatre operators losing their licence.

NOTE: Trend of allowing provincial jurisdiction over morality, until Westendorp

Westendorp v R 1983 SCC Facts/Issues

The accused approached an undercover cop and solicited sex. She was arrested for being on the street for the purposes of prostitution

a by-law in Calgary, to control the streets Calgary argues it is a part of a scheme to deal with nuisance on the streets (looks at the statute as a

whole) P&S: interference with public or private propertyHeld Provision was struck down as ultra vires the province (it was criminal law)

Rule/Law Law regulating prostitution cannot be sustained as part of a stopping public nuisance scheme. Penalties need to be scaled as they attach to each violation

Application There is no scale to the penalties attached to each violation The real P&S is an attempt to control or punish prostitution The attempt was a colourable (“specious”) attempt to deal with the “evil” of prostitution rather

than a public nuisance as the objective suggests: if it was upheld, it would establish concurrency of legislative power, going beyond any double aspect (“usurp exclusive federal power”)

The specific provision was completely different to the others

Re Rio Hotel and Liquor License Board, AG of NB IntervenantFacts/Issues

Rio Hotel wants nude performances, they receive a licence that prohibits nude performances They challenge the law AG of NB argues that the licence condition is part of a legislative scheme that has a purpose

entirely different from that ought to be served by criminal law.Issue: Does the province have legislative authority to prevent “nude entertainment” in a scheme to regulate the sale of liquor in the province? Because it deals with morality, does it encroach on criminal law?

Held It is intra vires the province: it is prima facie related to property and civil rights and matters of a local nature (regulates advertisement of liquor)

Rule/Law Provinces have authority to regulate conditions for the sale of liquor, and to regulate liquor outlets. There are also validly concurrent laws on morality that exist

Just because something may relate to morality doesn’t automatically federal DOUBLE ASPECT (between criminal law and property and civil rights)

Application In this case, there is no direct conflict with criminal legislation (only some overlap)

Note: Rio Hotel is distinguished from Morgentaler because the double aspect could be applied. Morgentaler said that overlap between criminal code and provincial legislation creates legal gaps.

BUT, in that case there was no valid health jurisdiction (no core) that the legislation could adhere to so the double aspect argument was not the same.

Here, it is being tacked on to something that is otherwise valid provincial jurisdiction, so double aspect is applicable.

Chatterjee v Ontario (AG) 2009 SCC Facts/Issues

Stopped because car had no front plate.. found in breach of recognizance, so they search the car. They found cash ($29,000) and evidence of gro-op materials. No drugs are found so they do not charge him with any drug related offence.

AG of Ontario brings an application: a preservation order was granted, and the money was seized under the CRA where only balance of probabilities is required for the forfeiture proceedings

Chatterjee challenges the legislation to the extent that it provides for forfeiture related to federal offences

Issue: At what point does a provincial measure designed to supress criminal behaviour become criminal law or involved in criminal procedure?

Held The legislation is intra vires the province, it is not criminal law.

Rule/Law The trend in both criminal law and Property and Civil rights is a movement towards concurrency. Canadian Western Bank discouraged the growth of jurisdictional enclaves Avoid using the IJI argument BUT use the principles, if it affects more than incidentally then it will be ultra vires

Application P&S: property based authority to seize things tainted by crime, the effect is to take the profit out of crime and remedy the societal effects of criminality (give to victims)Note: NOT in the prohibition+penalty form of criminal law. Forfeiture may have de facto punitive effects, but it is to make crime unprofitable, which is provincial.

Head of power: It is in relation to property and civil rights, and may incidentally affect criminal law

A provincial measure, designed to supress criminal behaviour will become ultra vires when the P&S affects criminal law more than incidentally

Why Does it NOT cross the line? “the mere existence of a valid federal law bearing some similarities to the challenged provincial law does not, without more, demonstrate the invalidity of the latter”

1. It is concerned with the deleterious effects of any crime, it is not attempting to tack on additional penalties to certain federal criminal code offences (the fact that the province has construed its power so broadly helps its case). The province can deter crime, but can’t prohibit it. It can also enact civil consequences to criminal acts, so long as it is for provincial purposes in relation to provincial heads of power.

2. They don’t interfere with the function of the criminal code: the criminal code also contains provisions for the forfeiture of proceeds of crimes and payment to victims, but it is those that push the boundaries rather than the provincial ones (are related to the sentencing process). Ancillary effects on criminal law are ok, as long as it “doesn’t do violence to the division of powers” by having its dominant purpose a criminal law purpose (also if a federal law touches a matter, this does not create a negative inference that the provincial law can’t legislate in that area)

3. It doesn’t raise Paramountcy concerns because they can operate concurrently

TRADE AND COMMERCE

Federal Government has jurisdiction over the economy Tension: between economic integration (federal) and political autonomy (provincial) Confederation: starting point/intention was to create a national unity (national economy)- it was a key impetus

for confederation

Economic Integration Political Autonomy- easy to comply with international standards- stable laws- distribution of risk/gain- even competition/standard pricing

- specialized industries should be provincially regulated- differential impact on provinces depending on how much the gov regulates in that area- more local economic unit makes it easier to correct distortion- deal with pollution, health and safety- maintaining local control

Warring Heads of Power:s.91(2): Trade and Commerces.92(13): Property and Civil Rights in the provinceOthers: CA 1867 s.121(articles can move between provinces), CA 1982 s.6 (guarantees freedom of movement of individuals within the labour market), private law heads of s.91

Parsons (Privy Council) 1881 trade and commerce power is limited. Confirms the primacy of place of s.92(13) it does not include the power to regulate the contracts of a particular business or trade does include:

Regulation of trade in maters of inter-provincial concern “General regulation of trade affecting the whole dominion”

Note: are qualifications to the provincial jurisdiction over civil rights (banking, marriage..ect)

Marketing Regulation Case law often involved schemes of regulation (what is it putting into place and who’s interests is it protecting?

Often producers but sometimes consumers) Provinces: About contracts of sale and purchase, which falls under property and civil rights. So the provinces can

regulate intra-provincial trade Not clear: some marketing schemes will have effects outside of the province Inconsistent treatment by the courts

Carnation 1968 SCCFacts/Issues

Carnation purchases milk, and then condenses it. Most of it is then shipped out of Quebec. Under an act specified to Carnation, Quebec creates a board, who then creates a joint marketing plan. The board can negotiate with Carnation, it is functioning like a union for the farmers in the townships,

it sets the price at which Carnation must purchase milk. Carnation has to pay more than the free market price when it deals with these farmers, so it

challenges the scheme as ultra vires.Key: that most of the product is shipped out of Quebec.

Held The legislation is intra vires the province

Rule/Law The important factor is the aim of the legislation not its incidental effects.

Application Here, the effect on export trade is incidental (P&S doctrine)

NOTE: after this case, there is extensive power in the province to regulate

AG Manitoba v Manitoba Egg and Poultry Association 1971 SCCFacts/Issues

Case was litigated was that the Manitoba government was frustrated with similar legislation in Quebec and Ontario (favoured local products in each province). Manitoba has surplus in both, so creates legislation and pushes a decision to the SCC that would be binding on the other provinces.

Manitoba plan: creation of a marketing board (similar to Carnation) that has exclusive power to sell the eggs, grade them ect.

Issue: to what extent should a province be permitted to burden interprovincial trade in the course of regulating intra-provincial trade?

Held The law is ultra vires the province- intrudes into s.91(2)

Rule/Law Reemphasises the difference between aims and impact

Application the aim here is outside of intra-provincial regulation The object is about regulating the sale of imported eggs (import/export is not provincial jurisdiction) It is designed to limit the free flow of trade purpose of the scheme is to benefit (Manitoba) producers

Distinguishes Carnation: where purpose was to protect local industry whereas here it was designed to impede trade.

Concurring Judgement

distinguishes Carnation in this way: it has as a direct object the regulation of the importation of eggs.

Focused on the stage of dealing when the regulation is imposed production is provincial, whereas distribution and consumption are more likely to cross into inter-

provincial

Note: are criticisms about distinguishing between the schemes- the differences are formalistic, and there is no difference from an economic perspective.

Reference Re Securities Act 2011 SCCFacts/Issues

Securities today goes through central stock exchanges, but provincial jurisdiction over securities goes back to the 19th century (when it was local). Canada attempts to put together a national regulator, set everything up to manage the transition, proposes an Act

Could have tried to just regulate international and interprovincially, but would not have been as efficient so took this risk, opened up this debate

It is an opt in system for provinces, but once they’re in, provincial regimes are suspendedIssue: Is the regulation of securities a valid exercise of the general federal trade and commerce power?

Held It is not a valid exercise of the power, it is ultra vires

Rule/Law Clarifies the bounds of the double aspect doctrine.

Five step General Motors inquiry:

Stage one:1. Is the impugned law part of a general regulatory scheme?2. Is the scheme under the oversight of a regulatory agency?

Stage two: (similar to POGG)3. Is the legislation concerned with trade as a whole rather than just a particular industry?4. Is the legislation of such a nature that the provinces jointly or severally would be constitutionally

incapable of enacting it?5. Is the legislative scheme such that failure to include one or more of the provinces or localities in the

scheme would jeopardize its successful operation in other parts of the country?

Underlying this test: exhaustiveness Effaciousness is not a relevant consideration in a division of powers analysis

Application P&S: to regulate all aspects of trade and securities and trading in CanadaEffect: displacement of provincial lawHead of power: property and civil rights in the province – not a matter of national concern

The law has both intra and inter provincial aspects This engages trade as a whole, but the effects of the legislation belie that aim, the effects are so

great on provincial aspects Can’t ignore that the provinces have been deeply engaged in this market for a long time This law overreaches into industry specific regulation

Notes This was a significant setback for the federal government after a trend of winning these federalism arguments

Tension between modern paradigm and it’s containment: cannot modify the separation of powers

THE CHARTER

Preamble: Starts with the preamble that invokes the rule of law and the supremacy of God (court does not accept that God is supreme over law, that religious belief is above the law)- hasn’t been featured in litigation

This is unlike the first generation bill of rights documents – modeled more on 20th century international instruments than on the US bill or rights or French declaration

S. 1: Limits on rights provision (the leading case is Oakes)S. 2: Fundamental freedoms and categories of rights (expression, democratic rights, mobility rights, association)S. 7-14: Legal rightsS. 15: Equality rightsS. 24: Enforcement provision – if your rights are violated you can apply to a court of justice

Talks about courts giving remedies that are just and appropriate (gives courts jurisdiction to be creative about remedies)

Although if you’re an organization, you can’t come here because you have no rights Therefore those have to go to s. 52 of the Constitution Act 1982 (not in the Charter, outside it, applies to

the whole constitution including the Charter, the division of powers etc.)

“General”: interpretation provisions/ directives onlyS. 25: Aboriginal rights – the other rights in the charter will not be interpreted as to derogate aboriginal rightsS. 27: Multiculturalism provisionS. 28: Sex equality – rights in the charter are guaranteed equally to men and women

S. 32: Application – Charter applies only to government, not other individuals. Government action doctrineS. 33: “Notwithstanding clause” or opting out provisions – with a declaration by their legislature, provincial

Merits of Entrenchment and the legitimacy of Judicial ReviewLiberals: wanted absolute rightsConservatives: more suspicious of individual rights and the judiciary enforcing themSocial Democrats: placed pressure to enhance social goals All had difference views about what changed in 1982

Key Critiques In favour- s.35 is not in the Charter- access to justice issues- SCC choses who can appeal

- minimum standard of protection is good- provides a check on the executive- accessible for someone to read

APPLICATION OF THE CHARTER (S.32)

Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery, [1986] SCCFacts/Issues

A union is involved in a lawful strike. The employer continues to do business with Dolphin. So the union decides to picket there too, which is lawful in BC. Dolphin is an interprovincial company. Canada labour code does not have anything on secondary

picketing, only the common law says this is an interference Union recognizes it has breached the common law doctrine Argues that the common law is unconstitutional, because it encroaches on freedom of expression

Should the charter be extended to apply to private disputes?

Held The charter does not apply here

Rule/Law The Charter applies to the common law (applies to all law), but it doesn’t apply to private litigation in the absence of some source of government action.

The charter doesn’t apply to courts, unless government is a party.o Although the courts have a duty to develop the common law in a way consistent with the

charter A court order is not government action

Application Picketing is expression and should be included in the Charter, but the relationship here is private. Dolphin is not acting on authority of the statute.

Exceptions to when the charter applies to the judiciary: applies to the common law where the government is a party to the litigation (Swain) the charter may apply to a court order where the court is protecting its own process or acting of its own motion

(Dagenais, BCGEU) ex. Ordering a publication ban while private parties owe each other no constitutional duty, a common law can be inconsistent with the Charter. It

must then be struck down or read down (Hill)

McKinney v. University of Guelph, [1990] SCC--> Application of the Charter to UniversitiesFacts/Issues

Universities have policies of mandatory retirement at age 65. Universities are created by statutes and receive government funding. However, they are run by a board of governs who are mostly not picked by government.

argument is that the policy is discriminatory on the basis of age in Douglas College it did apply, but it was a crown agent and a government appointed executive

Held Universities are statutory bodies performing a public service, but this does not in itself make them part of the government within the meaning of s.32

Rule/Law “The mere fact that an entity is a creature of statute and has been given the legal attributes of a natural person is in no way sufficient to make its actions subject to the Charter”--> public decision makers are not necessarily governmental, so a public purpose test is inadequate.

The test is based upon who has legal control of the entity

Application The government has no legal power to control universities, they are autonomous If an actor is found to be governmental, ALL their actions are subject to the charter. If it is found

to be non-governmental, certain situations could still be subject to the charter!

Arguments FOR it being a government actor: Funding, gov sets tuition fees, regulates Established by statute, some procedure established by statute Some members appointed by the gov. In a public position

Arguments AGAINST it being a government actor: Makes its own budgetary decisions, has some private sources of funding Has its own governing body, HR management Academic autonomy is traditional Has autonomy over university processes just because it won’t exist without statute/government is not enough being a public service is not enough has an independent board of governors

Dissent Holds that government should be protecting the public because private power is the primary source of coercion.

Suggests a different test, where an affirmative answer to one would indicate a gov actor1) Does government control the entity?2) Does the entity perform a traditional government function or one recognized as a responsibility of the state?3) Does the entity act pursuant to statutory authority granted to it to pursue a government objective?

Godbout v Longueil (City) 1997 SCC Facts/Issues

Municipal bylaw: all new permanent employees of the city must reside within its boundaries.Employee was fired, and argues it is unconstitutional.Issue: are municipalities subject to the Charter?

Held The Charter applies to municipalities

Rule/Law “interpreting s.32 as including governmental entities other than those explicitly listed therein is entirely sensible from a practical perspective” para 48.

The Charter must apply to entities upon which governments confer governmental powers within their authority, otherwise, provinces could simply avoid the application of the charter by delegating power to municipal bodies.

Where the ultimate source of authority is the government per se, the entity will be under scrutiny and the Charter applied (just as if the government itself were performing the functions)

Application Factors indicating municipalities are essential government actors: democratically elected taxing power subject to judicial review (didn’t succeed in McKinney) requirements of reasonableness law making powers most relied upon: exercising conferred governmental powers (this is the ultimate source of their

authority, it is government per se)

Eldridge v BC (AG) 1997 SCC terrain changing decisionFacts/Issues

Hospitals deny funding for interpreters for the deaf. Hospital Insurance ActLegislative provision extends funding to any medically required purpose. The power is delegated to hospitals to decide what a medically required purpose is.

Hospitals were not considered governmental in Stoffman, because the matter was about internal hospital management

Issues:1) Does the allegation arise from the impugned legislation itself, or from the entity exercising decision making authority (pursuant the that legislation)

2) Does the Charter apply to the decision not to provide sign language interpreters as part of a publicly funded scheme for the provision of medical care?

What is delegating? The statute or the hospital? The hospital is arguing that they are not “government” and therefore their decisions are not subject to Charter review.

Held The Charter applies to a hospital, this policy unjustifiably infringes on s.15

Rule/Law 1. If the entity itself can be characterized as “government”: all activities are subject to the Charter2. If the entity attracts Charter scrutiny with respect to a particular activity that can be ascribed to government:

a. investigate both the nature of the entity and the activityb. if the activity is truly governmental: only that activity will be subject to Charter review

if the action of the entity is accused of violating the charter rather than the legislation, then it must be established that the entity is performing a governmental function (fits within s.32)

Legislation that confers discretion should be interpreted as being in accordance with the Charter by the courts, because legislation is certainly subject to the charter.

It will be a governmental function if there is a “direct and precisely defined connection” between a specific governmental policy and the entity’s conduct.

Is it an expression of governmental policy? Even if the entity, in other respects, is autonomous

Application Hospital act: confers a lot of discretion, therefore the hospital’s decision needs to be scrutinized. Distinguishes Stoffman: here the hospitals are providing governmental objectives by providing

medically necessary services (government decided the content and service to be delivered) It provides for the delivery of a comprehensive social program, “Hospitals are merely the vehicles

the legislature has chosen to deliver its program” The failure to provide interpretation is intimately connected to the system instituted by legislation:

it is an expression of governmental policy.

Notes Hogg: doesn’t like Eldridge: because he is against the functional test which was rejected by the court in McKinney

Vriend v Alberta 1998 SCC Facts/Issues

person dismissed on the basis of his homosexuality. He challenges under the Alberta version of the human rights code because the code does not protect discrimination based on homosexuality.

Held

Rule/Law The language of s.32 does not limit the application of the Charter merely to positive actions encroaching on the rights or the excessive exercise of authority.

If an omission were not subject to the Charter, form rather than substance would determine whether a law was open to challenge (could just word it to omit)

Laws that regulate private activity (as opposed to private activity) IS subject to Charter scrutiny

Application The omission was not “neutral” as alleged. By this omission and denying benefits to certain people, they were actively discriminating --> in contravention of equality guarantees

Notes The arguments that McClung brought could be used to discuss judicial activism: The application of the charter to an omission is an encroachment on legislative autonomy Constitutional scrutiny: a way to dictate provincial legislation A choice by the legislature NOT to legislate should not be open to judicial review

LIMITS AND CONTRAINTS

CHARTER DIALOGUE (Questioning the legitimacy of judicial review) Tension between democracy and rights Concern that legislatures are majoritarian: not concerned with minorities, all social interests and are preoccupied

with short term (election) interests Objections to the revolutionary transformation to constitutional supremacy from parliamentary supremacy Federalism type issues come in who should have the last word?

Early Charter Cases: generally striking down legislation instead of having remedial optionsThen: new Charter remedies, more exceptions and extensions movement towards a recognition that it is not as objective as was originally thought

Concerns about judicial activism and the “Charter Revolution”

Dialogue theory (Hogg and Bushell): judicial decision causes a public debate in which Charter values play a more prominent role than if there had been no judicial decision

The charter can be a CATALYST for the dialogue, but it rarely raises an absolute barrier, because the legislatures can override

o S.33, s.1, the qualified rights (ss.7-9,12) and equality rights (s.15) where standards of fairness and reasonableness can be satisfied through remedial measures

There are only three situations where dialogue is precluded:o Where s.1 does not apply (although arguably it still happens…see s.35)o Where the objective of the law is unconstitutional, especially where the law’s purpose, rather than effects

are found to violate the charter. o Where political forces preclude legislative action

Dialogue can occur even where laws are upheld: the influence of the charter goes beyond what the judges define as compulsory or what they limit

THE NOTWITHSTANDING CLAUSE S.33

Governments can opt-out of sections 2 (freedoms) and 7-15 (legal rights) of the Charter This is very uniquely Canadian Limit of 5 years, after which it will expire, but can re-renew upon declaration Quebec quite consistently opt-out (omnibus opting out of all of their laws, often), showing their

disappointment of being left out of the Charter discussions at the last minute (more of a political stand) SCC: omnibus opt out okay, but need to remember to renew (sometimes they forget) Quebec has a charter of rights that often go further than Charter rights

Webber Article Mobility rights and language rights were most controversial, and the override provision precisely excluded these

(which would most likely be subject to derogation) The five year clause: lines up with the maximum term of any government It is a compromise between parliamentary sovereignty and judicial review: meant to establish an appropriate balance

between the courts and the legislatures through the facilitation of dialogue. It allows the legislatures to have the final word, but in return they must be explicit in overriding the courts

Courts: excel at analysis of specific claims, isolated individuals (better when all considerations are well defined and bipolar), focus on government interference rather than positive action (a restraint on government action rather than an alternative authority)Governments: much better at dealing with polycentric issues (balancing a multitude of interests), they are able to act positively (can use resources to attain ends), BUT they may respond in a way that benefits the majority rather than minorities or individuals.

Ford v Quebec (AG) 1988 SCCFacts/Issues

Bill in Quebec that all signs must be in French only. Certain companies can only use their French names. S.33 had been used to override the Charter to protect these statutes:

1982: Quebec said that every act shall operate notwithstanding the charter included retroactive application because it came into force after the charter came into force Quebec already had a charter that was more expansive than the Canadian one

Issue: what was the validity of the override provision? How can it be limited?

Held s.33 is just a form requirement, unless it is to apply retroactively. Has to be used expressly, but not specificallys

Rule/Law It is sufficient to declare that “all rights” will be overridden, and to use section numbers instead of calling them by name.

The Court will not undergo a substantive review of what a notwithstanding clause exempts.There is one limitation: the exemption applies when it is enacted, cannot be retroactive

Application

S.1: REASONABLE LIMITS

“subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”

R v Therens 1985 SCCRule/Law Dissent: The requirement of s.1 is chiefly concerned with the distinction between a limit imposed by law

and one that is arbitrary. The limit will be prescribed by law if it is expressly provided for by statute, regulation, or

common law

AG of Quebec v Irwin Toy 1989 SCCRule/Law Where there is no intelligible standard and where the legislature has given a plenary discretion to do

whatever seems best in a wide set of circumstances, there is no “limit prescribed by law” Between Absolute (not required) and plenary discretion (not permissible) A law can get past the specific enough threshold, but still not be demonstrably justified Rare for a law to fail at the prescribed by law stage of the analysis

Osborne v Canada 1991 SCCRule/Law “A law may be so uncertain as to be incapable of being interpreted as to constitute any restraint on

governmental power.” --> The uncertainty may arise either from the generality of the discretion conferred on the donee of the power or from the use of language that is so obscure, or from a failure to confine the invasion of a charter right

however, possibility of discretion does not render a law too vague

R v Oakes 1986 SCCFacts/Issues

Charged with possession of a narcotic, then accused has the legal burden to prove it was nor for the purpose of trafficking. (reverse onus)

Held The law violates s.11(d) and is not justified under s.1

OAKES TEST

s.1 has two functions:1. constitutionally guarantees rights and freedoms and their justificatory criteria2. the court must be guided by the values and principles essential to a free and democratic society.

The party seeking to uphold the limitation bears the onus of proof on a balance of probabilities:1. Objective

- Must be of sufficient importance- “pressing and substantial”

2. The means are reasonable and demonstrably recognized: Proportionalitya. Rational Connection(crafted with sufficient precision, causal connection, shows the

restriction on rights actually serves the intended purpose)- The means must be designed to meet the objective.- Not arbitrary, unfair, or based on irrational considerations.

b. Minimal Impairment- Usually the most critical step.- Look for available alternatives: does the legislation impair the rights as little- as possible in the achievement of its objective?- Edwards Books: as little as it is reasonably possible- Irwin Toy: whether the gov had a reasonable basis for concluding the ban impaired

the freedom as little as possible.

c. Proportional- Between the effects of the measures which are responsible for limiting the charter

right or freedom, and the objective which has been identified of sufficient

importance

Application 1) It is inconsistent with the guarantee to the presumption of innocence in s.11(d)2) “At a minimum, this requires that the provision be internally rational; there must be a rational connection between the basic fact of possession and the presumed fact of possession for trafficking”. The presumption is over inclusive and could lead to irrational and unfair results, fails at the first step

c. Proportionality: modified in Dagenais (1994): Proportionality is also between the deleterious effects and salutary effects of the measure (does it do more harm than good?)

FREEDOM OF RELIGIONHunter v Southam: The interpretation should be generous rather than legalistic, aimed at the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection

R v Big M Drug Mart 1985 SCC first SCC decision on s.2(a)Facts/Issues

Big M drug mart was charged under s.4 of the Lords Day Act with unlawfully carrying on the sale of goods on a Sunday. The mart constitutionally challenged the Lords Day Act, both under division of powers and the Charter

Held It violates s.2(a) and is not upheld under s.1

Rule/Law A corporation cannot be said to have a conscience or hold a religious belief There is no basis to limit the breadth of s.2(a) to only those who possess religious belief The freedom of religion is that “every individual be free to hold and to manifest whatever beliefs

and opinions his or her conscience dictates, provided… they do not injure his or her neighbours or their parallel rights”

no coercion all religions should be afforded equal treatment

Test 1. Does the purpose infringe?2. If not, do the effects infringe?

Application The act creates a hostile environment and gives the appearance of discrimination against non Christian Canadians. Non-Christians are prohibited for religious reasons from carrying out activities which are otherwise lawful.The act is religious in its purpose and effect (from the NAME)

The government tried to argue it was valid under criminal law, and therefore allowed to safeguard morality. However, then they can’t say that the purpose is secular (to have a day of rest and therefore not violate s.2(a)). This is a SHIFTING PURPOSE and not allowed.

** note: how would this play into a group asking for an exemption? (Loyola)

Themes The relationship between federalism and charter arguments the arguments are against each other: want to characterize it as criminal law, so have to stick to

historical characterization in order to do thisThe Approach to Charter Rights

interpretation should be generous rather than legalistic, however should not overshoot the actual purpose

Pre-Oakes: but early on the courts suggest that s.1 would not save a statute that totally negated a charter right

The fundamental Nature of s.2(a) tendency to treat religious belief only so far as it contributes to the well being of the individual

(personal good) But, it is listed as the first fundamental freedom

In what way are they fundamental?o Necessary attributes and modes of self-expression of human beings and the primary

conditions of their community life within a legal ordero Nature of the democratic processo The governed have free participation in the way they are governedo Form our organizing systems, judging systems

Edwards Books and Art Ltd. v The Queen 1986 SCCFacts/Issues

Four Ontario retailers were charged with failing to ensure that no goods were sold or offered for sale by retail on a holiday, contrary to s. 2 of the Retail Business Holidays Act (Ontario statute).Issue: are indirect burdens on religious practice an infringement on Charter Rights?

Held This legislation is not ultra vires the province, but it does violate s.2(a). It is justified under s.1

Rule/Law For a state imposed cost or burden to be proscribed (forbidden) by s.2(a) it must be capable of interfering with religious belief or practice. The burden/impact must be more than trivial or insubstantial.

The evils from which s. 2(a) may afford protection:o Coercive burdens on the exercise of religious belief (Big M), direct or indirect, intentional or

unintentional, foreseeable or unforeseeable are potentially within the ambit of s.2(a)o Direct burdens will likely be invalid under purposeo Indirect burdens...go to effects

Application P&S: secular day of rest, under labour organisationHead of Power: s.92(13)

Infringement on s.2(a): The purpose is not to infringe, but the effects infringeo The effect on non-observers is to make them close when they could otherwise make $o The effect on Sunday observers is favourable, eliminates competitive disadvantage as they would have

to close anyways.o The effect on Saturday observers is detrimental, means they have to close two days per week.o Therefore there becomes competitive pressure to stay open on Saturday.o Imposes incidental burden on Saturday observers.

s. 1 analysis:i. Objective: the act is a pressing and substantial concern: protecting families from a diminution of opportunity to …family activitiesii. Rational Connection: satisfactory effort in exemption option (to the small and mid-size retailer without the indignity of having to submit to an inquiry into religious belief)iii. Proportionality: not disproportionateLower threshold for impairment (from no alternatives to no reasonable alternatives)

Dissent the limit on freedom of religion cannot be justified by s.1. The effect of the act is that the freedom of some is respected while the freedom of others is not. Crown needs stronger evidence to justify.

Syndicat Northcrest v Amselem 2004 SCCFacts/Issues

Condo association refused to permit orthodox Jewish unit owners to construct succahs on their balconies to celebrate succot.Note: that in this case the private actors were susceptible to charter scrutiny

Held It was a violation of the Quebec Charter of Human Rights and Freedoms.

Rule/Law Test for freedom of religion

1. an individual must prove he or she has a practice or belief with a nexus of religion, that he or she is sincere in that belief

2. is there enough of an interference with the right so as to constitute an infringement of freedom of religion under the charter? (non-trivial)

3. Inquiry then shifts (here) to whether these are reasonable limits under the Quebec Charter. Under the federal Charter, it would shift to a s. 1 analysis

Courts cannot judge the sincerity of a belief.

Application The impairment of the appellants’ religious freedom is serious while the intrusion on the respondents’ rights is minimal.

the freedom encompasses objective as well as personal notions of religious belief, both obligatory and voluntary expressions of faith should be protected

Respect for minority rights must also coexist alongside societal values that are central to the make-up and functioning of a free and democratic society.

FREEDOM OF EXPRESSION

R v Keegstra 1990 SCC the rationale for the importance accorded to freedom of expressionPolitical Process Rationale

it is instrumental in promoting the free flow of ideas essential to political democracy.- unassailably, orthodox, universally accepted

Truth Rationale an integral part of the development of ideas.- promotes a marketplace of ideas (vying for supremacy, and the truth)- assists in promoting the truth (or tends towards this end)- more contested, truth doesn’t always come from the free flow of ideas (sometimes falsehoods arise)Limits: it justifies only a narrow sector of free expression, no guarantee the free expression will lead to truth

Intrinsic value rationale

expression is an integral part of the development of ideas, of mental exploration and the affirmation of self (fundamental)- has no limits- the fact that an individual has chosen a view is sufficient- often viewed as complimentary to the other two rationales

s.2(b) confirms the relevance of both instrumental and intrinsic justifications for free expression.- purposive approach: it is appropriate to consider the ends which freedom of speech may serve in determining its scope and the justifiability of infringements upon it.- also puts emphasis on the inherent dignity of the individual…

(in Irwin Toy)The nature of the principles and values underlying the vigilant protection of free expression1) seeking and attaining the truth is an inherently good activity

2) participation in social and political decision making is to be fostered and encouraged

3) the diversity in forms of individual self fulfillment and human flourishing ought to be cultivated in an essentially tolerant, welcoming environmentThe Charter and Advertising

AG of Quebec v Irwin Toy 1989 SCC lays out the theoretical framework for analysing a freedom of expression claim, and remains the accepted approach.Facts/Issues

Consumer protection act of Quebec says no person shall direct ads at kids (under 13)

Held It is a violation of s.2(b) but is justified under s.1

Rule/Law A. was the plaintiff’s activity within the sphere protected by freedom of expression?

if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee

Expression has both a content (meaning) + form (medium of the expression) not physical violence, this is outside the scope of expression Keegstra: promotion of hatred against racial groups Butler: obscene materials Sharpe: child pornography

B. Has the Protected activity been interfered with by a government actor?

i. Was the purpose of the government to restrict freedom of expression? Is it a restriction on a manner of expression and tied to content?

o It is restricted according to the meaning rather than an all out bano It is not just a restriction on the physical result, where it is restricted regardless of an

attempt to convey meaning

ii. Was the effect of the government to restrict freedom of expression? Burden on the plaintiff to prove, and must be stated in reference to the principles and values

underlying the freedom:1) seeking and attaining the truth is an inherently good activity2) participation in social and political decision making is to be fostered and encouraged3) the diversity in forms of individual self fulfillment and human flourishing ought to be cultivated in an essentially tolerant, welcoming environment

Note: matters whether you are making a purpose or effects based argument. An effects-based has to be linked to the three purposes and the burden is on the P. Higher standard? Does it actually limit the scope of the right?

C. Is it justified? (s.1)i. Pressing and substantial objective?ii. Proportional?a. rational connectionb. minimal impairmentc. proportional

Application Court splits on the s.1 analysis:Objective is compelling: generalized concern with the impact of media, especially want to protect children, report said that tv ad’s directed at children are manipulative per se. (children up to 13). Children are vulnerable. A law can protect a broader vulnerable group, not just the most vulnerable group.Proportionality: lesser standard than in Oakes.Deleterious effects: effects do not outweigh the objective (pre Dajenais… similar)

Note: content of the expression does matter: implication on the value of the expression in question.

RJR v MacDonald 1995 SCCFacts/ Bans on all forms of advertising of tobacco products while exempting foreign media. Health warnings need

Issues to be posted on all products.

Held All nine: the act was prima facie a breach of freedom of expression

5/9: The imposition of unattributed health warnings also breached freedom of expression5/9: not justified under s.1 (McLachlin): leaves some of the act remaining that is not at issue4/9: justified under s.1 (La Forest)

Judicial deference: greater deference if it is between sectors of society instead of state v individual (Irwin Toy) deference must not be carried to the point of relieving the government of the burden of

demonstrating the limits on Charter rights are reasonable and justifiableStandard of proof:

scientific proof is not required (only BoP as per Oakes)

Application “the s.1 inquiry is by its very nature a fact-specific inquiry”

Dissent distinguishes between legislation that mediates between two different groups (which requires a lower standard of s.1) and legislation where the state acts as the singular antagonist of the individual (where a higher standard of justification is necessary).

distinction between legislative and judicial function: accords a greater deal of deference to social legislation than criminal legislation.

weighing the freedom of expression claims in light of their relative connection to a set of even more fundamental values.

Baier v Alberta 2007 SCCFacts/Issues

Concerns the constitutionality legislation that limits the ability of school employees to run for election and serve as school trusties in Alberta (the school employee must resign from their position when elected)Issue: this is an under inclusivity complaint in relation to expression, they are asking the government to take action

Held The claimants are seeking a particular channel of expression, there is no substantial interference (fails at the second Dunmore factor)

Rule/Law Previously in Haig: the government doesn’t have to provide anyone with this statutory platform what flows is that they can create statutory platforms that are under inclusive, there is no obligation to fund both sides. (“prohibits gags but does not compel the distribution of megaphones”) however, in Dunmore, it was held that in certain cases, under inclusion may offend s.2 as well as s.15 (where under inclusion is already recognized).

2(b) TEST

1) is the activity a protected form of expression under s.2(b)?

2) If so, the court must determine if it is a positive entitlement to government action, or simply the right to be free from government interference.

whether the P’s claim that the government must legislate or otherwise act to support or enable an expressive activity

the fact that a matter is regulated by statute is not what limits s.2(b) protection What is limited is a right to a platform under the statute, rather than a matter being regulated by

statuteIf it is a positive rights claim, the three Dunmore factors must be considered

Dunmore factors for positive rights: while claims of under inclusion may raise concerns under s.15 equality rights, in certain cases, under inclusion may offend s.2 itself.

i. is it grounded in a fundamental freedom of expression rather than in access to a particular statutory regime?

- claiming a unique role is not the same as claiming a fundamental freedom- the claimant must seek more than a particular channel for exercising their fundamental freedom

ii. has the claimant demonstrated that exclusion from a statutory regime has the effect of a substantial interference with or infringement on s.2(b)

- diminished effectiveness in the conveyance of a message does not mean that s.2(b) is violated.

iii. is the government responsible for the inability to exercise the fundamental freedom?- If yes, s.2(b) has been infringed and the analysis will shift to s.1

Application 1. form of expression? yes, sufficient to continue consideration (not too strong, but within scope)2. a positive entitlement to government action? yes, the appellants make a claim for the government to enable expressive activity (they had previously been included in the statutory scheme)Dunmore factors:i. does not meet, running for school trustee is not a fundamental freedomii. they failed to show that exclusion from trusteeship substantially interferes with their ability to express themselves. There are other ways to express themselves, it isn’t only fulfilled by this activity test not met

Note if the election was for something more fundamental (ex. Parliament) the result would have been different.** compare this to Eldridge, where it was held that one the state provides a benefit, it is obliged to do so in a non-discriminatory manner. How is a platform different to a benefit?

R v Guignard 2002 SCC (negative rights claim)Facts/Issues

Guignard was convicted on erecting a sign on his building that expressed dissatisfaction with the services of an insurance company. This type of sign was prohibited by municipal bylaws.

the court has recognized the substantial value of freedom of commercial expression (from the nature of our economic system, the free market)

advertising and counter-advertising are not equal: the right to counter advertise is a part of the right of a citizen (more like political expression, instead of consumer expression)

Held The provisions of the by-law are invalid, but suspended for six months for the city to change the law.

Rule/Law Any attempt to restrict the content of expression or the form of expression (other than violence) is a breach of s.2(b)

Counter-advertising: an expression of opinion that has an important effect on the social and economic life of a society.

Application This is a protected form of expression, the statute was not designed to prohibit counter advertising. the effect of the provision is to infringe on his freedom of expression because the most accessible form of speech for a man in his position was prohibited

s.1 analysis: fails at minimally impairing: the impact on freedom is disproportionate to the benefit it secures for the municipality (many other distracting signs are not included)

it is both underinclusive and overinclusive

The Charter and Obscenity

R v Butler 1992 SCCFacts/Issues

Appellants charged with selling obscene material, possessing obscene material etc.

Issue: whether, or to what extent, can Parliament legitimately criminalize obscenity? Does s.163(8) of the CCC—the definition of obscenity—breach s.2(b)?

There is also an argument that it is too vagueHeld Restricting expression, even deeply offensive, is a violation

s.1 justification?

Rule/Law Old test: Community Standard of Tolerance Test: what Canadians would not tolerate other Canadians being exposed to

Now: Degradation or Dehumanization Test interrelated with community standards: put people in positions of subordination, submission, and humiliation. Run against the principles of equality and dignity. Consent cannot save the materials

Defences: Internal Necessities Test or Artistic Defence, where the exploitation of sex has a justifiable role in advancing the plot or the theme of a work.

“The values that underlie the protection of freedom of expression relate to the search for truth, participation in the political process, and individual self-fulfillment”

Application Both the purpose and effect of s.163 are specifically to restrict the communication of certain types of materials based on their content.

This prohibits certain types of expressive activity and thereby infringes s.2(b) The terms in the provision that is intelligible (not too vague)

JustificationObjective: to protect society form harms from obscene materials, which is pressing and substantial. Moral corruption and harm to society are inextricably linked, it is a shift in emphasis not a shift in objective

Proportionality:rational connection – lack of proof between pornography and harm to women (inconclusive social science evidence)

minimal impairment- sufficient for parliament to have a reasonable basis for concluding that harm will result, only covers materials that dehumanizingIn response to suggested alternatives: “education and legislation are not alternatives by complements in addressing such problems. There is nothing in the Charter which requires Parliament to choose between such complementary measures”

balance between effects and objectives- this kind of expression is not at the core of what is protected expression, and furthermore it is primarily economically motivated. And on the objective side, the court says is of fundamental importance in society. Therefore the restrictionon freedom of expression DOES NOT OUTWEIGH the importance of the legislative objective

Note post RJR, motivation for profit would not have been given relevance**

Little Sisters: A bookstore that specialized in gay materials found many of its imported materials were being seized at the border by Customs. (Federal legislation allows officer to seize material that is obscene as per the CC). The SCC refused to attribute the custom’s officials actions not in accordance with the Charter to Parliament’s legislation. Held: the adverse treatment by custom’s officials interfered with sexual orientation rights. They issued a declaration that the legislation is not to be construed so as to place on an importer the onus of proving the goods are not obscene.

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.

“individuals” four equality rights mentioned (generally not referred to separately) “before and under the law” thought to capture the broad rule of law, they are not arbitrary, everyone is subject

to the law: formal equality “equal benefit” goes beyond broad principle: language has been the focus of women’s groups concerns with

Bill of Rights decisions second half: introduces discrimination, and the grounds for equality that is not exhausted (not enumerated

grounds, it invites analogous grounds)

Bliss 1979Facts/Issues

P was claiming unemployment insurance, benefits for pregnant persons was not as generous as other categories, claims that this is discriminatory

Held There was no inequality: used the similarly situated test. There was no discrimination on the basis of sex, since she fell into a class that was treated equally under the act (pregnant persons)

CriticismsIn Andrews)

This idea of equality is mechanical, it doesn’t have scope for considering the reason for distinction. It is reduced to a categorization game

formal equality underlies racial equality, sex equality. Where there are formal inequalities on the face of the law, there is no more powerful tool than formal equality.

Substantive Inequality: about patterns of discrimination, embedded in relationships, normalization of stereotypes. Then, formal equality is not going to work. Have to expose the stereotypes (dig beneath). Inequalities are not simply on the face of the law, nor do they always rely on the law providing inequalities. Challenge: to find a doctrinal approach

Andrews v Law Society of British Columbia 1989 SCCFacts/Issues

Plaintiff was a white male from England, with a law degree from Oxford. He met all admission to the Bar except citizenship. He declared the citizenship requirement violated s.15.

Note: he was a “but for” equality claimant. This is strategically the best type of claimant to have. Although, it tends to obscure the more complex issues… citizenship as an analogous ground (not enumerated) – But for his citizenship, he can practice law in BC. So he is strategically well positioned to bring the claim

Issue: what kind of distinctions (for accommodation of differences) will be acceptable under s.15(1) and what kinds will violate its provisions?

HeldMcIntyre and Lamer

s.15 protects substantive equality. a complainant under s.15(1) must show that they are not receiving equal treatment under the law or

that the law has a differential impact, AND show that the legislative impact of the law is discriminatory

it is justified under s.1

Rule/Law rejects the similarly situated test: “the mere equality of application to similarly situated groups or individuals does not afford a realistic test for a violation of equality rights”

A bad law will not be saved, merely because it applies equally to a group, neither will a law be bad because it makes distinctions

Consideration must be given to:o The content of the lawo Its purposeo Its impact upon those to whom it applieso The impact on those whom it excludes from its application

The evil that s.15 provides a guarantee against: The “worst oppression” resulting from discriminatory measures having the force of law Intent is not required for discrimination

Relationship between s.15(1) and s.1

Test The analysis of discrimination must take place within the context of enumerated grounds and those analogous to them

Requires more than a mere finding of distinction in treatment Discrimination: concentrates on personal characteristics

o Stereotypingo Historical disadvantagemento prejudice

Leaves justification to s.1

Application There were three options to approach s.15:

1) every distinction drawn by law is discrimination under s.15, and moves to s.1 for justification. All the work is going to be done under s.1, because ALL laws make distinction, similar to freedoms where most work is under justification REJECTED

2) Consideration of the reasonableness and fairness of the impugned legislation, minor role to s.1, it would only be used in emergency.

3) the court adopted the Enumerated and Analogous Grounds Approach

DissentWilson

Agrees on the s.15 analysis, but differs on the s.1 analysis Elaborates on s.15: have to go outside the individual, look at the group in society as a whole- are

they a “discrete and insular minority”? ex. Here, look at non citizens in society as a whole, and the inequalities they face powerful language, focus on the place of the group in society at large: non-citizens fall into an

analogous category, vulnerable to exclusion (no political power) these insular minorities will change, so needs flexibility

Law v Canada 1999 SCC brings in a test after years of uncertainty. Turns Andrews into a 3 step testFacts/Issues

the claimant’s application to receive her husband’s pension (survivorship benefits) was refused because she was under 35, she was not disabled, and she had no dependent children (had to be able to point to an external reason that she could not be self sufficient)

This was part of a benefits regime (same issues as Bliss, where there is no right taken away- Idea that we should give government some latitude when they are engaging in these regimes as there will always be trade-offs)

Problem: claimaint is coming from an advantaged group, claiming she should get the advantageChallenge: to the Canada Pension Plan, that draws distinctions on the basis of age with regard to entitlement to survivor’s pensions.

Held Discrimination is not established within the meaning of the Charter.

Rule/Law The purpose of s.15:“to promote a society in which we are all secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect, and consideration”

To prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice (an individual or group feels self-respect or self-worth)

Human dignity within the meaning of equality: the manner in which a person legitimately feels when confronted with a law

Test Three step test to determine if there was discrimination:

1. does the impugned law draw a formal distinction between the claimant and others on the basis of one or more personal characteristics or, does it purposefully or effectively cause a negative impact?

2. does the impugned law fail 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 of the enumerated and analogous grounds?

3. does the differential treatment discriminate in a substantive sense (human dignity sense), bringing into play the purpose of s.15(1) of the charter? four contextual factors

i . pre-existing disadvantage role of stereotypes not necessary to show the existence of historic disadvantage because it is only an indicium rather

than determinative of discrimination still have to link to human dignity (which defeated a lot of claims post- Law)

ii. Correspondence Test (essentially the similarly situated test, rational connection between the law’s distinction and the effect)

relationship between the ground upon which the claim is based and the claimant’s characteristics or circumstances (the nature of the differential treatment)

enumerated and analogous grounds such as disability, sex, age

iii. ameliorative purpose or effects (of groups) will not be as stringent in the correspondence test if there is an ameliorative purpose, because the

exclusion of the more advantaged individuals corresponds to the greater needs experienced by the disadvantaged group being advantaged by the legislation

likely Law failed here, because the law itself had a positive effect

iv. nature of the interest affected what is the constitutional significance attributed to the interest? giving guidance to lawyers as to how to argue this factor

Note: 2 and 3 are concerned with whether the differential treatment constitutes discrimination in the substantive sense.In the factors, i and iv are rooted in substantive equality. ii. And iii. Are rooted in formal equality room to make both substantive and formal arguments

** the test does not require that the claimant adduce scientific evidence to prove a violation (the court can decide on the basis of judicial notice and logical reasoning)

Application Framing Directives

1. subjective/objective perspective: The perspective of the reasonable rights holder in the context of the

legislation in question. If human dignity informs every step, it becomes too subjective.** NOTE: this is an issue because shouldn’t the objectification only happen at the s.1 stage??

2. equality is a comparative framework: Ultimately it is up to the court to decide what the comparison is (difficulties come from this after Law, But For, comparing groups)

3. Purposive Approach is required: focus on human dignity (narrows the approach, gives more definition to the content of the right…more filtering at the beginning)

4. Flexible Contextual analysis

Notes Post Law: consistency in the framework, but the court is still splitting over what it means (fragmentation still happening)

“the quest for equality expresses some of humanity’s highest ideals and aspirations, which are by their nature abstract and subject to differing articulations”

Post Law: faithful application of the steps…but confusion over what it means, which should be given the most weight?

KappIssues reproduces s.1 and formal equality. Says human dignity test has gone too far. Note, this case was decided

on s.15(2) so technically this is all dicta

Held The link to human dignity is no longer required: it had become an extra burden on claimants. It is so vast and underlies the Charter (after Erik and Lola- no longer around..)

Refuse to overrule the comparative framework, but say it is generally comparative (decisions should not be made on how the group is drawn, this prevents the contextual analysis)

Can bring intersectional arguments (not just “but for”)

WhithlerIssues actually deals with s.15(1): affirms the two step Kapp test

step two from Law is integrated into one

Test 1. distinction made based on an enumerated or analogous ground?2. Is there discrimination? Look to Law contextual factors (prejudice or stereotyping?)

o lowers the level of scrutiny of the government for complicated benefits regimes

Quebec (AG) v A 2013 SCCFacts/Issues Met in A’s native country (cirque du soleil performer), moved to Quebec. A did not work, B was a

wealthy businessman. They had three children together, B did not believe in the institution of marriage so they did not get married. They separated after living together for 7 years. The court gave very generously for child support, but nothing for the wife.

Challenge to the exclusion of de facto (common law) spouses from the provisions in the civil code of Quebec that require property sharing and spousal support

Held Gets rid of human dignity test, and the “but for” analysis, Important to generally compare, at a macro level (from Kapp)

4-4 on the 15(1) analysis, McLachlin agrees with Abella on s.15(1) as a tie breaker (but is ambiguously supporting it)

Lebel +McLachlin have a majority on the result: s.1 justification it is justified

Test for 15(1)Abella

[Abella] violation of s.15(1)

(majority) 1) Does the law create a distinction based on an enumerated or analogous ground?

2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? This is not an additional requirement to prove, prejudice and stereotyping are just two indicia of

disadvantage that can help determine whether the distinction substantively violates equality A question of whether the CONDUCT is discriminatory, not the underlying attitude or motive

(prejudice and stereotype are attitudes so need not be proved). The reasonableness/rational basis of the distinction should be left for s.1 (this point was first made in Andrews)

This is a flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of their membership in an enumerated or analogous group

If state conduct widens the gap between historically disadvantaged groups and the rest of society rather than narrowing it, it is discriminatory

VERY BROADo Prioritising of disadvantage (1/4 factors) focus on substantive equality

Issue: “arbitrary” does this change the test intentionally? Does it bring rationality into the s.15 test?

Application(Abella)

1. Marriage is an analogous ground because the decision to marry is not always a choice (Miron) A focus on choice is a formal and not a substantive equality approach

2. Is the distinction discriminatory? Yes: the law excludes economically vulnerable and dependent de facto spouses from support. This disadvantage perpetuates a historic exclusion: de facto spouses, though they have the same

functional characteristics as formal spouses, are being excluded from protections (no need to look for an attitude of prejudice) Note: is this the similarly situated test creeping back in? (it was rejected in Andrews) or is this saying that the distinction is unreasonable?

Choice should NOT be addressed here (as LeBel suggests)s.1:1. Objective: preserving freedom of choice is a pressing and substantial objective2. Rational Connection: yes (or rather… not wholly unconnected)3. minimal impairment: an outright exclusion cannot be minimally impairing. Instead, there could be a presumptively protective scheme, where spouses could opt out (this efficiently provides support to vulnerable spouses while still gives freedom of choice to those who want to exercise it) fails here4. deleterious effects > salutary: 1/3 of couples are de facto. The outcome in a separation could be catastrophic. The salutary impact can be achieved without this deleterious effect so it cannot outweigh

s.15 (1)s.1 analysis(McLachlin)

1) Does the law create a distinction based on an enumerated or analogous ground?2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

Perpetuation of prejudice and false stereotyping are useful guides, but what constitutes discrimination requires a contextual analysis (4 factors from Law)

o puts Abella’s argument into this part of the test, keeping prejudice and stereotyping as guides

Emphasizes the subjective/objective part of the test (reasonable rights holder in similar circumstances)

Discrimination can come from purpose or effect

Note: she had written the decision that common law relationships don’t involve choice, must stick with that.

s.1 Justification1. Objective: to promote choice and autonomy for all spouses, which is pressing and substantial2. Rational Connection: yes, distinction is connected to preserving autonomy (clearer than Abella)3. Minimum Impairment: there are schemes that can impair the equality right of de facto spouses to a lesser degree. BUT: the question is whether the law goes to far, in relation to the goal the legislature is trying to achieve (“less dramatic means which do not actually achieve the government’s objective are not considered”)

A presumptive scheme would offer a narrow conception of choice (would require agreement and positive action)

Uses the language of the dominant standard: must fall within the range of reasonable alternatives (instead of very stringent standard)

4. proportionality: there is no longer a stigma, enhances freedom. Although the effect is bad for people like A, she suggests that legislatures should be allowed a margin of error of difficult social issues

Dissent on s.15(1)LeBel (4)

no violation (A firm adherence to the two step Kapp/Whitler test) warns that Abella’s test doesn’t give the courts any guidance: it reduces the analysis to the requirement of finding an adverse distinction

1. Distinction: agrees there is a distinction made, but says that de facto spouses are no longer disadvantaged (historical prejudices can change)

2. Discriminatory: believes Abella has changed the test. Prejudice and stereotyping are crucial (although potentially not the only factors) and suggests that leaving these and opting to show only pre-existing disadvantage (which is only a contextual factor to identify prejudice) makes the test too broad.

Reviews key concepts of prejudice (view of someone, opinion problem: is intentional, which goes against holding that intent is not required) and stereotypes (inaccurate generalizations, links to the correspondence test)

Notes the history: marriage became a joint endeavour (economically) so those who did not want to be subject to this could remain de facto spouses by choice.

Quebec’s distinctiveness is a big factor, looks at history: dismissal of paternal/patriarchal system where people did not want to share property, idea of insult from being under the community of property regime. There was an attempt to change this but it was overturned in the legislature. (although note this was before divorce was so easy)

They remained free to establish the terms and conditions of the relationship The LA “has not favoured one form of union over the other” The distinction is therefore not discriminatory

Issue: uses legislative purpose in the correspondence factor: this breaks into s.1 territory This test is most often accused of importing s.1 considerations into s.15 analysis because the

“actual circumstances of the claimant” could be interpreted in light of legislative purpose

Issues tackled so far:Andrews: requirement to be a citizenLaw: entitlement to pension on the basis of ageWhithler: entitlement to death benefits on the basis of ageErik and Lola: marriage

have to show that the law directly singles you out based on personal characteristics. Ideally, a but for claimant (easiest) DIRECT DISCRIMINATION

if the law is seemingly neutral on its face => have to show the law has a negative or adverse impact on you, claimant has more work to do at this step ADVERSE EFFECTS DISCRIMINATION (INDIRECT)

case law regarding human rights codes (human rights context)

Adverse Effects Discrimination Analysis

Eldridge v British Columbia (AG) 1997 SCC (PRE-LAW)Facts/Issues

Background: court held that mandatory retirement was not applicable to the hospital, so people were not expecting the charter to apply in this situation

Issue: Does the failure to provide sign language interpreters in hospitals infringe on equality rights under s.15(1)?

Deaf people fall under an enumerated group (physically disabled)

Held It violates s.15(1) and was not justified under s.1

Rule/Law 1. Have the appellants been given equal benefit under the law? “s.15(1) acts as a bar to the executive enacting provisions without taking into account their

possible impact on already disadvantaged classes of persons” (Lamer, in Rodriguez)

2. Does the denial constitute discrimination on the basis of one of the enumerated or analogous grounds?

**If claimants prove that the inequality rights of members of the group to which they belong have been infringed, they need not establish a violation of their own particular rights

Application 1. On its face the medicare system applies equally: but it is argued that the lack of funding for sign language renders them unable to benefit from the legislation

2. The court characterizes healthcare delivery: effective communication is integral to it. In order to receive the same quality of care, deaf persons much bear the burden of paying for communication services. This is discriminatory

“One the state does provide a benefit, it is obliged to do so in a non-discriminatory manner” if there are policy reasons in favour of limiting the government’s responsibility to ameliorate

disadvantage in providing a benefit, that should be considered under the s.1 analysis.

S.35Royal Proclamation 1763:

aimed at securing a peaceful relationship with the aboriginal allies (mutual dependency) “conciliation” New France had fallen to the British, they had to win over France’s allies Idea that the land was already Crown land, the Indian lands were in Canada’s Dominion

- Aboriginal peoples recognized as autonomous political units living under the Crown’s protection- government could not grant away unceded land- settlers could not settle or purchase such land- put in place a system of public purchase.

Doctrine of Discovery: doctrine of international law, North America seen as unoccupied and Crown ownership vested when they discovered it.

St Catherine’s Milling v The Queen 1888Facts/Issues

Who was the true owner of the lands ceded in treaty 3 by the Ojibwa Nation?

Held Aboriginal interest in the land had ceased to exist upon surrender. Their interest was “a personal and usufructory right, dependent on the goodwill of the sovereign”. This interest was equal to a grant from the crown rather than flowing from the use and occupation since time immemorial.

The purpose of the surrender requirement was to prevent exploitationThe rights had principles that are still here today: can be extinguished, inalienable except to the crown,

sui generis, communal rather than personal

R v White and Bob: Held that the Royal Proclamation was declaratory of Aboriginal rights, it did not create them.

Calder v BC 1973Facts/Issues Nisga_a’a people wanted a declaration that their Aboriginal title had never been extinguished.

Held Court splits of whether the rights can be extinguished by the Crown (by necessary implication, or a clear and plain intent?)

Court split on whether the Royal Proclamation was applicable to Indian lands in BC

Rule/Law The right is common law, not rooted in the crown. Aboriginal title exists independently from any treaty or the crown (but holds the same principles as before) and is therefore not derived exclusively from the Royal Proclamation Gave the aboriginal claims legitimacy in the political sphere (though the content was the same) Notes that the rights of the original inhabitants were considerably impaired: their right to complete

sovereignty as independent nations was diminished as they have no power to dispose of their soil at their will

Guerin 1985 recognized the fiduciary relationshipFacts/Issues

162 acres of land was leased to a golf club in a way not disclosed to the band beforehand. They based their case on breach of trust, because the federal Crown was a trustee of surrendered lands

Held The government breach its fiduciary obligation to the band, awarded 10,000,000

Rule/Law 1. Aboriginal title is a legal common law right that derives from their historic occupation2. A fiduciary relationship exists (because they can’t alienate to anyone except the crown, they have discretion that can be used against the other’s interests)

o The crown took this responsibility on through the Royal Proclamationo It is recognized today through the surrender provisions of the Indian Acto The sui generis interest in the land gives rise to a distinctive fiduciary duty (the crown must

deal with the land on the Indian’s behalf when the interest is surrendered)3. Rights must be established in this context

Application

Structure for How s.35 is to be Applied

s.25 of the Charter: shall not be construed as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada (including the rights recognized by the Royal Proclamation or any rights hat exist by way of land claims)

s. 35 (1): Aboriginal treaty rights are recognized and affirmed(2) definition of Aboriginal peoples (Indian Inuit and Metis)(3) definition of treaty rights (any rights that exist by way of land claims agreements)(4) guaranteed to males and females

s.35.1: any constitutional amendments cannot be made without consultation.

NOT a part of the Charter (means notwithstanding clause or s.1 analysis is not applicable) Until 1990 was not given any meaning (or limitations, until Sparrow)

R v Sparrow 1990 SCCFacts/Issues

Sparrow is charged under the federal fisheries act for using a net that was too long.Claimant: arguing that the band is not subject to fishing restrictions because he was exercising an aboriginal right to fish (and should be able to fish for any reason that is not dangerous)

The act is federal, so there is no federalism issue at play

Held Dismisses the appeal, orders a new trial: food fishing was an integral part of the Musqueam culture

Rule/Law Existing rights: means “undistinguished” NOT “exercisable at a certain time in history”. An approach to the guarantee in s.35(1) that incorporates frozen rights must be rejected

must be interpreted flexibly so as to permit evolution over time (rejection of the Crown’s frozen rights argument )

“Affirmed in their contemporary form rather than in their primeval simplicity and vigour”

Extinguish: not the same as regulation, the government’s intention must be clear and plain (adopts stricter standard from Calder where they could extinguish by necessary implication) for any rights pre 1982. (rejects the Crown’s argument that it doesn’t need to be express or consented to)

Post s.35, governments can’t unilaterally extinguish aboriginal rights (part of the constitution) but they can infringe the rights, or can extinguish with consent (“release”)

Issue: doesn’t say that express wording is required, what constitutes “clear and plain intent”?

What is the impact of s.35? it is more than just a codification of case law so far, there is a clear indication that s.35 signals something new

New Rules: must be construed in a purposive way (generous and liberal interpretation, consistent with existing

interpretation of treaties) affirms the fiduciary obligation of the crown, the honour of the crown is at stake so fairness is

necessary. The affirmation of rights must be done in light of the trust-like rather than adversarial relationship

Not subject to s.1 The rights are not absolute…there still needs to be a test for justification, it must be enacted

according to a valid objective, and the government is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right under s.35(1).

TEST Test for prima facie interference + its justification

1) Does the legislation have the purpose or effect of interfering with an existing aboriginal right? (unnecessarily infringe the interests protected by the right?) from an aboriginal claimant perspective (does the court actually do this?)

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) if YES, move to justification: (burden on the crown to prove)a. is there a valid legislative objective?b. Does the manner of pursuing the objective reflect the crown’s fiduciary obligation?

after conservation, priority must go to the community

Carry on depending on the circumstances:c. has there been as little infringement as possible in order to effect the desired result? (from the Crown’s perspective rather than the claimant’s perspective)d. is fair compensation available in the event of expropriation?e. has there been consultation?Note: not an exhaustive list, just requires that recognition and affirmation requires sensitivity to

and respect for the rights of aboriginal peoples

Application Extinguishment of the right: The Fisheries act simply controlled rights, did not extinguish.Evidence: KEY is that of an anthropologist, some of oral history. Found that salmon fishing was integral to their culture.

Notes left open problem of commercial fishing, did not articulate a test for identifying aboriginal rights (go to Van der Peet)

criticism that it was too broad, little guidance on reconciling with non aboriginal use of natural resources

this was a high mark, subsequent cases have largely restricted the scope

R v Van der Peet 1996 SCCFacts/Issues

Law: cannot sell fish caught under an Indian fishing licence. She was selling fish that her common law husband caught under the Indian food fishing licence.

Claimant argues that she was exercising an existing aboriginal right to sell fish, and that the law infringes on the right

“The task of this Court is to define Aboriginal rights in a manner which recognizes that aboriginal rights are rights, but which does so without losing sight of the fact that they are rights held by aboriginal people because they are aboriginal” para 19. [note what this foreshadows]

Held The aboriginal rights of the Sto:lo does not include the right to exchange fish for money or other goods. Therefore the claimant violated the Fisheries Act

Rule/Law the rights recognized and affirmed by s.35(1) must be directed towards reconciliation of the pre-existence of aboriginal societies with the sovereignty of the crown (note- not directed towards self determination or conciliation- why is it RE?) reformulation of the test focused on recognition and reconciliation

Test 1) was the practice an integral part of the specific distinctive culture of that group prior to contact with Europeans?

the court must take into account the perspective of the aboriginal claimants (but must also be cognizable to Canadian law – linked to the concept of reconciliation)

the court must identity the precise nature of the right asserted practice must have continuity with pre-contact practices

TEN factors to consider when applying the integral distinctive culture test1. equal weight on aboriginal and common law perspectives2. identify the nature of the claim3. Is it of central significance?4. Is there continuity from traditions that existed prior to contact? (only need to demonstrate that a tradition has origins pre-contact, evolution of practices does not prevent protection)5. Approach the rules of evidence in light of difficulties: should be conscious that there were no written records of the rights)6. Adjudicate claims on a specific rather than general basis (the particular group claiming)7. It must have independent significance to the culture (not incidental to another practice)8. The tradition must be distinctive (not distinct or unique, but that it makes the culture what it is)9. The influence of European culture: if the practice arose solely as a response to the influence, then it will not be recognized as an aboriginal right

Rights v Title Title is a sub-category of rights, dealing solely with land Rights claims must consider the relationship to the land, but ALSO practices, customs and

traditions arising from the distinctive culture and societyApplication The right was an aboriginal right to exchange fish for money or other goods, but these exchanges were

incidental, there was no regularized/specialized trading pre-contact.

The trading between the band and the HBC were as a result of European influences Therefore, does not go on to the justification factors

Result: made it very difficult to prove later on that commercial fishing was an aboriginal right. That this was in fact freezing rights rather than taking a purposive approach

Dissent They would have found that she was exercising an aboriginal right, in a modern form. S.35 shouldn’t just protect a catalogue of practices, but the distinctive culture as a whole. That the majority’s judgement was not from an aboriginal perspective.

R v Sappier, R v Gray 2006 SCC unanimous decisionFacts/Issues

Whether certain communities had a right to harvest timber on crown lands for their personal use.Issue: Identified difficulties in the Van Der Peet test: evidentiary issues to prove things before settlers arrived, and that rights are central rather than incidental.

Held Moves away from a strict test (addressed Van der Peet dissent)1. SCC essentially rejected the notion that the practice needs to be at the core of a peoples’ identity to be integral2. Finds that at least in some contexts, pre contact practices that are crucial to the survival of the society can be considered integral (here, the harvesting of trees for domestic uses, was used for survival)3. Distinctiveness should not be defined by stereotypes and cultural traits that are anthropological curiosities. A cognisance of not reducing aboriginal rights claims to what non-indigenous peoples would consider as culture.

Delgamuukw 1997 SCCFacts/Issues A claim to 58,000 square km of land by the chiefs of two nations. First known European contact is 1832.

Originally the claim is for ownership and jurisdiction (trial was 394 days)o Trial held that the bulk of the evidence was considered “folklore”, oral tradition

was discounted. Accepts that aboriginal peoples lost any claim to rights once they adapted to western ways, once sovereignty was claimed.

BCCA: becomes a claim for Aboriginal Title and self governmento The court would not rule on the question of title as it was not brought up at trial.

The trial decision is upheld, but finds that some sustenance rights were not extinguished

Gap: attempt to negotiate treaties The attempt fails: appeal is resumed

Issues at play:1. evidence2. nature/content of title3. sparrow test for justification4. issue of extinguishment of title by a province

Held Non-decision: inconclusive- doesn’t rule on the claim because of its conversion. When the pleadings are changed the other party could be prejudiced (the crown). Orders a new trial, leaves it open that title and self-government could be established (the trial judge did not consider the oral evidence)

“Let’s face it, we are all here to stay”

Spectrum of rights protected by s.35(1)1. practices, customs, traditions: integral to the distinctive culture, but where use and occupation of the land where the activity takes place does not support a title claim. The time for ID is first contact2. site specific activities: fall short of title3. Title: where the integral and distinctive culture test is SUBSUMED by the requirement of occupancy.

The time for ID is at sovereignty

Rule/Law Interference can occur, if it meets the justification test

1. Evidence the courts must NOT undervalue oral tradition, to require written evidence would require an

impossible burden of proof and render irrelevant any rights the nations have The oral evidence here was essential to the case and was improperly discounted.

2. Nature and content of title Nations argued it was tantamount to inalienable property, Crown argues it is at most

exclusive use and occupation, is individualized SCC comes down somewhere in between: sui generis right in land (more than a right to

engage in specific activities) What is the content of the right? (This is new)

o Inalienable except to the crowno source in pre-sovereignty occupationo held communallyo constitutionally protected

Limited use: can used for more than aboriginal rights, but it cannot be irreconcilable with the nation’s connection to the land. They may still surrender it to the crown for uses that are irreconcilable with the connection.

Proof: Land must have been occupied prior to sovereigntyo Physical presence on the land, and a recognition of the claimed right before

sovereignty.o Sufficient to use present occupation evidence and show a substantial connection (not

conclusive evidence)o Occupation had to be exclusive (not shared with any other nation)

3. Sparrow test for justification: applies to title claims

a) Valid legislative objective? expanded, no longer just prioritizing aboriginal rights over others)

Valid Objectives: development of agriculture, forestry, mining, hydroelectric power, general economic development of the interior of BC, protection of the environment and endangered species, building of infrastructure + settlement of foreign populations to support it

b) Does the manner of pursuing the objective reflect the crown’s fiduciary duty obligation?The duty and degree of scrutiny will depend on the type of claim being brought and the right being claimed, it doesn’t always demand that aboriginal rights be given priority.

Internal limits: if they exist (like in Sparrow where they were only fishing for food), then the requirement of priority

to aboriginal peoples can apply. If they do not (only limited by supply and demand like in Gladstone) then the government only has to

show if took consideration of aboriginal rights into account in order to meet the requirement of priority, to avoid giving an exclusive right to exploit a resource.

Three aspects are relevant to the application of the fiduciary duty to title claims1. exclusive nature of title means attenuated concept of priority

Like the Gladstone interpretation of internal limits, here title is not internally regulated2. Discretionary nature of title suggests that the fiduciary duty may be satisfied by the involvement of aboriginal peoples in decisions re their land (range of consultation duties)

The nature of the consultation will vary with the breach3. economic component of title suggests that compensation will be relevant

Then approach the other factors from Sparrow:c) has there been as little infringement as possible in order to effect the desired result? (from the Crown’s perspective rather than the claimant’s perspective)d) is fair compensation available?e) has there been consultation?

4. Issue of extinguishment of title by a province (pre 1982) the province cannot extinguish title (to do with s.91(24) and s.98) because this would strike at the

core of Indianness. Only the federal government can do this, if it is incorporated by s.88 look for clear intent to destroy aboriginal title

Haida Nation v BC 2004 SCCFacts/Issues

The nation brought a judicial review application about a timber licence BC took the position that it didn’t have any legal duty to consult until a nation proved its title in

court, or there was a treaty made. AND, if there is such a duty, it only belongs to the federal crown

Held Rejects the government’s argument on legal grounds and policy. Consultation and accommodation is essential to s.35

Rule/Law The honour of the crown gives rise to different duties in different circumstances. Here, the duty to consult and accommodate is a part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution.

Duty to consult triggered when (low threshold): Crown has notice (real or constructive) of a credible but unproven claim of aboriginal title or rights,

and When the Crown contemplates conduct which might adversely affect aboriginal rights, including titleNote: still falls on the aboriginal claimants to put the crown on notice about the rights concern and the infringements

How must the government consult? The content of the duty varies with the circumstances. Scope of the duty will be proportionate to the strength of the case in support of the title and the rights

and the potential severity of the infringementso the Court emphasized that each case must be approached on its facts and with flexibility

Controlling question: what is required to maintain the honour of the crown (not sharp dealings!)Weak/impact is minor strong prima facie case/high infringement

Indicia of consultation:good faith on both sides, a vision of accommodation

o Crown: intent to substantially address concerns through meaningful consultation, no sharp dealing, being prepared to alter the original proposal. May require taking steps to avoid irreparable harm, or minimize the effects of infringement pending the resolution of the claim

o Claimants: must not frustrate the crown’s reasonable good faith attempts or thwart decisions where no agreement is reached (this seems silly!)

NO veto power, the idea of “consent” is only appropriate where title has been established (although it has never been established in Canada…)

Note: companies do not have this responsibility, it cannot be delegated away from the crown.

Application On the honour of the crown: “It is not a mere incantation, but rather a core precept that finds its application in concrete practices”

Notes Future cases must be decided on the factsIssue: need the relationship in place for these laws to work… otherwise no decisions will be made

“One cannot meaningfully discuss accommodation or justification of a right unless one has some idea of the core of that right and its modern scope” (Dissent in Marshall)

Note: “balance and compromise are inherent in the notion of reconciliation” suggests an equal give and take. But does the historical disadvantage and years of cultural appropriation not shift the equality of the equation?

s.7

s.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

everyone: not corporations (Irwin Toy), not a foetus (Borowski), includes non-citizens (Singh)

One right or two? ONE right, two part test. If the right has be violated by government legislation or action, then determine whether it has been done in accordance with the principles of fundamental justice (there has never been a s.7 violation justified under s.1)

What are the principles of fundamental justice? Substantial (law which fixes duties, establishes rights and responsibilities for persons) or procedural (prescribing the manner in which such rights and responsibilities may be exercised and enforced)? Or Both?

Reference re s.94(2) of the Motor Vehicles Act 1985 SCC: the principles of fundamental justice are to be found in the basic tenets of the legal system. Here, it was substantive. Having the mens rea for an offence was a basic tenet of the legal system, and you cannot be deprived of liberty in a manner that doesn’t accord with the basic principles of fundamental justice (in this case, not having mens rea)

Two tests emerge… 1) basic tenets of the legal system2) manifest unfairness test

What is the SCOPE of life, liberty, and security of the person? Rodriguez: it includes the right to a dignified death, but it can be violated in accordance with the principles of fundamental justice is order to protect the weak and vulnerable

R v Morgentaler 1988 SCCFacts/Issues They operated an abortion clinic in violation of s.251 (needed to be an approved or accredited hospital,

and there was no therapeutic abortion committee). The penalty was life in prisonThe argument was that the s.251 violated s.7 of the Charter

Held the procedural aspects of the law violated s.7 (not the substantive question)

Rule/Law 1. violation of s.7? Issue of security of the person: decision making (Morgentaler’s argument) or physical control

(crown’s argument)

2. Was the violation in accordance with the principles of fundamental justice? (“relate to both procedure and substance, depending upon the circumstance”)

a. basic tenet of the legal systemb. manifestly unfair

Application (Dixon)

1. the delay in obtaining abortions caused by the mandatory procedures of s.251 in an infringement of the purely physical aspect of the individual’s right to security of the person Forcing a woman to carry a foetus to term unless she meets certain criteria is a profound interference

with a woman’s body

2. The procedures under s.251 are flawed: Only 20% of hospitals were accredited, some places didn’t have accredited hospitals Undefined standards: an “absence of any clear standard to be applied” The system is manifestly unfair (contains too many barriers to its own operation)

3. Not justified under s.1Wilson(concurring but not in the reasoning)

The primary issue is whether a woman can be compelled to carry a child to term (a question of liberty, not just security of the person) the right to access of abortion

Criminalization of this triggers liberty Abortion is not a criminal law issue: it involves people’s choices about their lives, and human

dignity Profound social/ethical dilemma Violates liberty by giving away the decision and giving it to a committee. THIS is the violation

o a critical component of the right to liberty is the right to make fundamental personal decisions

o the legislation treats her as a means to an end, an end over which she has no desire or control.

Security of the person: can’t be a passive recipient of the decision of others

“with all due respect, I think the court must tackle the primary issue first” Why attack the procedural requirements if the abortion is unconstitutional? She argues that it is futile for the legislature to spend time remedying the procedural defects, when the issue is the criminal law.

Dissent to get to these conclusions, there must be a right to abortion in the constitution. SO s.7 cannot protect that right. Parliament has never declared it a right

Defence is not illusory, anyone who applies got it Not up to the courts to create these parameters

Rodriguez v BC 1993 SCCFacts/Issues Sue had ALS, and would lose the ability to terminate their own life towards the end. So she sought a

declaration that she was entitled to commit suicide with assistanceIssue: She argues she is neither weak nor vulnerable (who the legislation is attempting to protect) and wants to perform something that is not illegal.

Key issue:s.241(b) of the Code makes it an offence to “aid or abet a person to commit suicide” does this provision infringe on s.7 in that it inhibits the person to control or time their death she asserts her claim on:

the right to live with the inherent dignity of a human person the right to control what happens to her body while she is living the right to be free from governmental interference in making fundamental decisions

Held5/4 split

She does not get the declaration, security of the person does not include the taking of life so the criminal provision does not violate s.7.

Rule/Law The principles of fundamental justice: cannot be so broad as to be vague generalizations about what our society considers to be ethical or moral. (“they must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result”).

They must be legal principles. Historical analysis + rationales behind it

Application Concern of the majority: the right to die would become uncontrollable

1. Security of the person: encompasses personal autonomy and basic human dignity. S.241(b) engages the security interest

2. respect for human dignity is an underlying principle of our society, but it is not a principle of fundamental justice

Says there is a consensus that human life must be respected (serves a similar purpose to the prohibition on capital punishment which cheapens human life)

Says that medical associations are concerned with abuse

Dissent (McLachlin)

1. agreed s.241(b) infringes security of the person. The effect of the law is to deny to some people the choice fo ending their lives solely because they are physically unable to do so.

2. when one is considering whether a law breaches the principles of fundamental justice by reason of arbitrariness: the focus is on that particular person. “The principles of fundamental justice require that each person, considered individually, be treated fairly by the law”“A legislative scheme which limits the right of a person to deal with her body as she chooses may violate the principles of fundamental justice under s.7” if the limit is arbitrary. [It will be arbitrary if it bears no relation to or is inconsistent with the objective (Morgentaler)]

This law draws a distinction between suicide, and assisted suicide (one is legal, the other is not). This distinction is arbitrary, therefore the prohibition violates the principles of fundamental justice.

the majority asks Sue Rodriguez to serve as a scapegoat: asked to bear the burden of the chance that other people may act criminally (7-19)

The merits of this can ONLY BE CONSIDERED UNDER S.1, there is no balancing against individual rights at this stage

3. s.1 analysis: the objective can’t be to criminalize suicide...because suicide is not illegal. The true objective is the fear that if assisted suicide is allowed, the power will be abused and lead to the killing of those who have not truly consented (used as a cloak for murder, or involuntary consent).

This is invalid, because the same dangers are present in any suicide. These fears are called murder, or counselling suicide.

The task of the court: (7-23) Not to second-guess parliament’s decision to criminalize assisted suicide. It is to determine

whether the denial of the right to end her life is arbitrary and therefore amounts to a limit on her security of the person that doesn’t comport with the principles of fundamental justice

The focus is on the way in which parliament has acted, NOT why they acted

Chaoulli v Quebec 2005 SCCFacts/Issues Dr and patient a QC statute that bans private insurance for medical services that are publicly funded.

Purpose of this prohibition on private insurance is to insure that no private market and provision of services develops. QC is of the view that if a private market arose, it would erode the quality of the public system.Issues: is there a right to health?

Deschamps This is a violation of Quebec’s charter and could not be justifiedDifference: no principle of fundamental justice component in the Quebec charter, so no issue of administration of justice

Judicial Role: the courts have a duty to rise above political debate. Promotes values that may not otherwise be taken seriously in the elected process. Proper weight attached to each: courts should have more weight on individual/state issues, rather than other issues that go to parliament.

McLachlin+3

Held: Violation of s.7, and not justified under s.1

1. rights to both life and security of the person are engaged when the province provides a monopoly

service and doesn’t provide service in a reasonable time. Public medical care: seen as a core value significance of this institution Say that having access to private health care will NOT wipe out the institution Suffering outweighs the benefit of the public system, at whatever cost

2. Principles of fundamental justice must not be arbitrary. What does that mean? when the law bears no relation to or is inconsistent with the objective that lies behind it (from

Rodriguez) need evidence to make the connection: there is none here to say that the ban is necessary to

preserve the system. Therefore it is arbitrary and not justified

3. s.1: no rational connection, not proportionate, benefits do not outweigh deleterious effects

Dissent (3) Hold: there is a rational connection between banning and preserving the system

Judicial deference: courts and judges are ill equipped to decide these issues of economic and social policy.

Cannot be resolved, must have deference to parliament This provision is not arbitrary, it is necessary to maintain the system. It is a rational consequence

of the goal of the Act, and not inconsistent Arbitrary: no relation to or is inconsistent with the objective. Substituting unnecessary for

inconsistent fundamentally changes the nature of arbitrary OPPOSITE conclusion. The aim of healthcare at a reasonable standard in a reasonable time is not

a principle of fundamental justice

Insite/PHS: ordered the minister to grant an exemption (unusual remedy)

Canada v Bedford 2013 SCCFacts/Issues Prostitution is not illegal, but three laws criminalizing activity surround prostitution are argued to infringe

on the s.7 rights of sex workers.

Held Unconstitutional laws:s.210 keeping or being found in a bawdy house

harms are grossly disproportionate to the deterrence of community disruption Parliament can regulate nuisances, but not at the cost of the health, safety, and lives of prostitutes

s. 212(1)(j) living on the avails of prostitution Doesn’t distinguish between those who exploit and those who protect

s.213(1)(c) communicating in public for the purpose of prostitution Prevents screening, increasing the risks they face

Clarification of the Law under s.7

Stare Decisis: The Prostitution Reference involved the physical liberty interest alone. Here, the security of the

person was engaged. It also dealt with vagueness and permissibility of indirect criminalization, and here principles of arbitrariness, overbreadth, and gross disproportionality are raised.

RJR McDonald: legislative fact-findings are owed less deference. BUT, Charter litigation has evolved, and the distinction between adjudicative and legislative facts can no longer justify graduations of deference, so findings of social fact also require deference why there was no talk of women, marginalized populations ect

The standard of review for findings of fact (whether adjudicative, social, or legislative): remains palpable and overriding error

S.7 TEST (2 parts) – claimant bears the burden1. s.7 engaged?

Security of the person is engaged: the prohibitions impose dangerous conditions.

Causation (between the laws and the harm): Sufficient causation is met (flexible standard) Issue of choice: while some may choose, many have no meaningful choice but to do so (they are

not “choosing” a risky line of business- PHS). Furthermore, prostitution itself is not illegal. This is not an assertion that there should be positive rights: it is only asking that the laws that

aggravate the harms are struck down Deference has NO place at this stage of analysis\

2. In accordance with PFJ The term is not a right it qualifies the right NOT to be deprived of life, liberty and security of

the person (unless it is in line with the principles) ALL THREE PRINCIPLES are not concerned with the law’s effectiveness, the analysis is

QUALITATIVE not QUANTITATIVE (whether anyone’s s.7 rights are violated) There is no question of justification at this stage

Arbitrariness: where there is no connection between the effect and object of the law Morgentaler: the procedures did not contribute to the purported objective of the law. The law

actually contravened the objectives of the law (was called manifest unfairness, now known as arbitrariness)

Chaoulli: found that private health insurance and public health care could coexist, so the prohibition was arbitrary because of the lack of connection

PHS: the decision not to extend the exemption from drug laws (objective of health and safety) was contrary to these objectives

Overbreadth: the law goes too far, and interferes with an unrelated conduct Heywood: prohibition on loitering, to protect children from sexual predators, applied to those who

did not constitute a danger and to parks without children in a sense the law is arbitrary in part

root question: is there no connection between the effect and the purpose (has been worded as “inconsistent” or “unnecessary” in the past)

Gross disproportionality: the effect is grossly disproportionate to its objective PHS: the harm from denying health services and increasing the risk of death and disease was

grossly disproportionate to the objectives of drug laws Does not consider the beneficial effects of the law for society, it is not concerned with the number

of people who experience the effects (this is s.1)

These three principles are directed at two evils: Where the law’s deprivation of an individuals s.7 guarantees is not connected to the purpose of

the law (fought by arbitrariness and overbreadth) Where the law’s impact is connected to the purpose, but the impact is so severe

3. s.1 Analysis- crown bears the burden Asks a different question: whether the negative impact can be justified Calls into question the majority in Rodriguez, who relied on societal interests as an appropriate

consideration under the principles of fundamental justice

Judicial Position: parliament has failed to act, and where they don’t the constitution should be there.

Remedy The provisions are void, but it is suspended for a year (“moving abruptly from a situation where prostitution is regulated to a situation where it is not would be a matter of great concern to many Canadians”)