PPAL 6100 April 13 2009

• 1968: Trudeau became PM. He wanted:– stronger federation– patriation of constitution– Const. Charter of Rights– better-protected language and

mobility rights

• 1970: Molgate-MacGuigan Committee found strong support for a const. Charter

• 1971: Victoria Charter– agreement for Ch and pat.– opposed in the end by Quebec and

Alberta

• 1976: PQ elected in Quebec

• 1980: Referendum– Trudeau promised renewed

federalism

• 1981: – negotiations; no agreement

– “unilateral” patriation attempt

– reference to 3 Prov Cts of Appeal; appeal to SCC

– SCC Ruling:• legal, but breaks convention

– Nov. 1981 const conference• compromise

November 1981 compromise

• Patriation of constitution with the amending formula favoured by most of the premiers (the 7-50 formula), but which Trudeau had opposed

• acceptance of a constitutional Charter of Rights which would contain a “notwithstanding” (non obstante) clause

• Trudeau insisted that the notwithstanding clause not cover language rights, minority language education rights, or mobility rights; notwithstanding clause would have a 5-year limit

The Charter of Rightsbecame law April, 1982

• 1. Limitations clause• 2. Fundamental

freedoms:– conscience and religion

– thought, belief, opinion & expression

– press and other media

– peaceful assembly

– association

• 3-5: Democratic rights: – citizens right to vote and

run for office

– 5 yr limit to life of H of C or prov. Assembly except during war etc. if supported by 2/3 vote

– sitting of Parliament, and prov. Legislatures, at least every 12 months

Mobility and Legal Rights

• 6. Mobility rights– 1. to enter, remain,

leave

– 2. to move within Can. and pursue livelihood, subject to laws that don’t discriminate and residency provisions, and restrictions in provinces of high unemployment

• 7-14 Legal rights: eveything in Bill plus– freedom from unreasonable

search or seizure (s. 8)

– trial within reas time

– jury trial if liable to 5 years imprisonment

– no retroactive offences

– no double jeopardy

– least punishment if law varied

Equality and Language

• 15 Equality before and under the law– without discrimination

based on race, national or ethnic origin, colour, religion, sex, age, mental or physical disability

– Affirmative action programmes OK

• 16-22: Language– supplements S. 133 of CA,

1867, which is still in effect

– applies to Canada (fed) and New Brunswick only, though other prov’s can opt in

– Eng & Fr “official langs”

– Debates, statutes, Hansard in 2 langs

– Eng or Fr can be used in courts

– right to receive services or communicate in English or French with gov’t

Minority Lang Education, remedies

• 23: Minority lang ed– citizens whose first

lang is Eng or Fr, or who attended prim school in Eng or Fr, have right to educate children in that lang.

– Siblings rights

– applies where numbers warrant

• 24: remedies– (1) “...such remedy as

the court considers appropriate”

– (2) evidence may be excluded if its collection violated a right, if admitting it “would bring the administration of justice into disrepute”

General

• 25: aboriginal and treaty rights not reduced by charter, including rights under Royal Proclamation of 1763, and land claims agreements

• 26: other existing rights not reduced by Charter

• 27: multicultural heritage of Canadians to be kept in mind when interpreting the charter

• 28: equal guarantee to males and females (this section isn’t covered by the “notwithstanding” clause)

General (continued)

– 29: denominational school rights in CA, 1867 not reduced

– 30: Territories included, now and later

– 31: Charter does not extend legislative powers; it is a limit

– 32: Application to Parl, legislatures, gov’ts (& 3 year delay for s. 15)

– 33: a notwithstanding clause can be inserted into legis. re ss. 2 or 7-15; 5 year limit; can be renewed

– 34: ss. 1-34 of CA, 1982 cited as the Charter of Rights and Freedoms

The Charter and Its Critics

• The Charter undermines legislative supremacy & therefore democracy– Mandel: elected legislators are

closer to the needs of the poor and oppressed. Judges are business-oriented. No Charter decision has/will benefit the disadvantaged

– Morton-Knopff: Judges may be “captured” by special interest groups, mostly on the left. This subverts democracy.

– Charter erodes participatory democracy. Human rights can only be protected by the vigilance of citizens

• Cost of litigation compared to the political process– Lavigne case: NCC spent

$500,000; unions $400,000 +

– OFVAS case: why didn’t artists use political process to change Ont censorship law? Didn’t know how.

– But think of cost of lobbyists

Charter Critics (2)

– Charter litigation focuses attention on cases that happen to get to court, not necessarily most imp issues for society (Dean Monahan, Osgoode Hall Law School).

• Cts should interpret Ch to promote democracy

• Courts are inappropriate for making policy on human rights

– Stare decisis is backwards looking, compared with the possibility of forward-looking policy formation processes in public service/legislature

• eg. Appropriate procedure for determination of refugee cases

• Schachter case (changes to parental leave policy)

– Adversary system• gov’t lawyers argue for a

narrow interpretation of Charter, whether or not this is gov’t policy

• courts rely on arguments from counsel. Sometimes, no section 1 arguments

• Do judges get a complete analysis of the issues?

Charter critics (3)

– Backgrounds of judges• older than average adult

• disproportionately married with children

• predominantly male

• New Canadians and Aboriginals under-represented on bench

• most from business or professional family

• tend to be successful

• appointment process for Prov Courts and prov. Superior courts improving. Elevation procedure, and SCC secretive

• Similar problems with lack of representation in legal profession

• Why do we tend to trust judges more than elected politicians?

• Was the Charter worth the upheaval it took to get it?– Will revisit this question last

week of class

Michael Mandel & the Legalization of Politics

• Judges are supposed to decide based on principle, and avoid policy.– Hard to separate neatly

– Judges tend to be conservative on social and economic questions

– Judges tend to be “active” to support interests of business and capital, and “restrained” in relation to advancing the cause of the disadvantaged

– American precedents tend to support the advantaged

• Our legal system assumes all litigants are equal in ability to defend positions.

– This is why U.S. courts are reluctant to find affirmative action programs constitutional

• Charter is supposed to defend the socially weak against majority rule.

– But the socially strong have more to gain

– Elected govts can act to advance the cause of the disadvantaged. Charter allows them to avoid some issues.

Knopff & Morton: Charter politics

• Agree with Mandel that Charter allows legislatures to pass difficult issues to courts

• Charter is a “two edged sword” -- can slash to the right or the left, depending on the judges

• Do we want judges to be the “official public philosopher?”

• Should judges be – “non-interpretivists” (will of

framers -- a straight jacket) or

– “interpretivists” (creative, but perhaps against democracy)

• The Charter Revolution (1999): – groups with axes to grind have

used Charter to subvert democratic process

• feminist groups

• academics

• special interest groups (eg. Canadian Civil Liberties Assoc, gay and lesbian organizations, the gun lobby, NCC)

• groups representing “Charter” Canadians (the handicapped, seniors, new Canadians, Aboriginals)

Other Charter commentators

• Christopher Manfredi– s. 33 makes Charter more

democratic

– s. 33 became unpopular because of signs case

• Alan Cairns– Charter has empowered

“Charter Canadians”

• Peter Russell:– Charter is here to stay, so how

can we make sure it works well?• Judicial appointment

• better judicial training

• My view:– basic principle behind

democracy is mutual respect. Mutual respect leads to:

• democratic institutions

• respect for minority rights

• rule of law

• respect for freedom

• respect for integrity

– What is important is how well courts perform discretionary functions, not whether they have discretion. Do judicial decisions promote mutual respect?

Rights and Freedoms under the Charter

• There are three early charter cases dealing with “application”:– Big M Drug Mart

(April, 1985)• Status of Bill of Rights

precedents

• Purpose of Charter

• Does Charter apply to businesses?

– Operation Dismantle (May, 1985)

• Does Charter apply to cabinet decisions?

– Oakes (Feb., 1986)• application of Section 1

(limitations clause)

Big M Drug Mart

• Impugned: Lord’s Day Act– Calgary drug store challenges Act

as violation of S. 2• Does Charter apply to

corporations?• “everyone” in S. 2 (fund

freedoms) and “anyone” in S. 24 (remedies) includes legal persons

• Bill of Rights precedents– Does Robertson & Rosetanni

apply?

– Dickson: Charter doesn’t simply “recognize and declare” existing rights. Applies to present & future legislation

– Do we look only at effect of impugned legislation, as in Robertson & Rosetanni?

– No: purpose equally important. Purpose is clearly to promote particular religious observances (from 1677)

• Purpose of Charter: tolerance, freedom, equality.

– Freedom is founded on “respect for the inherent dignity and the inviolable rights of the human person.”

– “Purposive” approach to application of Charter

Big M (2)

• Freedom of Religion– What is purpose of freedom of

religion?• History: forcing religious belief

does not work

• Christians realized that their religion demands tolerance. Everyone given a conscience by God; to compel belief therefore dishonours God

• rel minorities need protection from tyranny of the majority

• Preamble to Charter: “Canada is founded upon principles that recognize the supremacy of God and the rule of law.”

• Act therefore violates s. 2. Can it be saved by s. 1?– Crown arguments:

• need a day of rest conforming with needs of majority.

– Dickson: No; Charter is to protect religious minorities

• society needs a weekly day of rest so families can spend time together.

– Dickson: good argument, but that’s a provincial responsibility. LDA was a federal law under criminal power. Now only provinces can regulate.

Operation Dismantle

• 1983: peace groups challenged cabinet decision to test U.S. cruise missiles; violates s. 7.

• 1985: SCC decision

• Argument: testing will destabilize status quo, making Canada vulnerable to attack from Soviet Union

• Issues– Are cabinet decisions subject to

the Charter, even when under the prerogative power? Yes: S. 32 includes “government,” broadly defined

– Are politicial issues justiciable?• This is a U.S. approach• Any legal issue is justiciable in

Canada

– Should the case proceed to trial?• Dickson: no, because the

arguments of the peace activists are speculation; no proof that s. 7 would be violated. No legal issue, no standing. Wilson: need proof that the tests would violate s. 7 rights of specific individuals

– Use of Charter for publicity purposes

Oakes (1986)

• Impugned: reverse onus clause in fed Narcotic Control Act. – If found guilty of possession of

a narcotic, presumed guilty of trafficking unless accused can prove otherwise. Claim of Oakes: violates s. 11(d) presumption of innocence.

– Oakes: found guilty of possession of 8 one-gram vials of hash oil in 1981. Challenged trafficking charge.

– Does reverse onus violate s. 11(d)? Yes. Saved by S. 1?

• In a free & democratic society, the gov’t objective must be of sufficient importance to justify limiting a right.– What is objective of reverse

onus clause?

– Dickson: Curb drug trafficking. This is of sufficient importance.

• Rational connection between objective, and means used?

Oakes (2)

– Dickson: no. Possession of a small amount of a narcotic does not necessarily mean trafficking is involved. This isn’t a rational way to get at the traffickers.

– Because the impugned legislation has failed the first prong of the second part of the test, it’s not necessary to consider the other 2 prongs of Part II.

• Other two prongs of Part II of the Oakes test:– the right that is limited should

be impaired as little as necessary to meet the government objective

– there must be an overall balance between the harm done by limiting the right, and the good achieved by meeting the legislative objective. The cure can’t be worse than the disease.

B.C. Motor Veh Act Case (1985)

• 1982: BC gov’t created an “absolute liability” offence: if you drive with license suspended, automatic jail term. Mens rea not applicable.

• Issue: does an ab liab offence violate “fund justice” in s. 7 of Charter?

• BC gov’t sent ref question to BC CA in 1982; app’d to SCC

• Should “fundamental justice” be interpreted in a procedural or substantive way?

• Procedural: life, lib and sec of person can always be limited, if correct procedures followed

• Substantive: in some cases, even correct procedures cannot justify limiting life, lib or sec of person

• debates in Parliament: framers wanted S. 7 interpreted in a procedural way; fear of repeat of “Lochner era” in U.S., where U.S. js interpreted “due process” in a substantive way, and stopped social welfare reforms

B.C. Motor Veh Act Case (2)

• Lamer: legislative history should be admitted but given “minimal weight,” as no proof that a maj of MPs and Senators agree with the views of some

• Lamer: combination of an absolute liability offence, and a jail term, results in a violation of fundamental justice.

• S. 1: it’s possible that the crown could prove a reasonable limit, but crown did not present any evidence on this issue.

• Therefore, a “reasonable limit” has not been established.