1. The Division of Powers – Criminal Law

Relevant Provisions- Basic Authority: 91(27) Federal has authority - But note:

o Substantive Offences: 92(15) provincial regulatory offenceso Process and Procedure: 92(14) Administration of Justice

Policing, Prosecution (concurrent), Establishment of courts BUT criminal procedure is federal under 91(27)

o Punishment: 92(6) Prisons but penitentiaries are under 91(28)

2 Key Questions1. What can parliament do under 91(27)?2. What are provinces prevented from doing, on the ground that it would be in pith and substance criminal

law?

Two issues underlying the cases:- The same problem can be dealt with in very different ways: regulation vs prohibition; prohibition vs

prevention. Under 91(27) is Parliament confined to using only very blunt instruments- Criminal law has traditionally served a wide variety of purposes. What then makes something

distinctively a matter of criminal law? Notes

- Formal definition of criminal law: prohibition plus penalty- There’s a clear acknowledgement of exhaustively listing criminal laws purposes - Some requirements are stipulated: must combat a public wrong, not merely a private wrong. Must

combat an issue necessitating attention of the stigma of criminal law

Criminal Law Power - OttawaWhat does 91(27) allow Ottawa to do?

Proprietary Articles Trade Association v Attorney-General of Canada Form requirement - Dealt with cases that tried to get rid of monopoly situations- Could Ottawa do this under criminal power? Only thing that distinguishes criminal law from other types

of law is the “form = prohibition and penalty”, no requirement of purpose- Rejected the notion that criminal law is directed at acts which must carry moral taint.

Reference Re s. 5(a) of the Dairy Industry Act (Margarine Reference) Purpose requirement- Facts : This statute dealt with the federal government’s restriction on the Dairy Industry and production

of margarine. - Issue : Can Ottawa justify this restriction on the basis of criminal law power?- Decision : The formal requirement must be paired with a public purpose which can support it as being in

relation to criminal law. - Purpose: public peace, order, security, health, morality, and other things that are like that

o These are all ends which are served by the law. Issues because definition is very broad - In this case, parliamentary action appears to deal directly with the civil rights of individuals in relation to

particular trade within the provinces. No longer had health concerns, so public wrong deemed irrelevant. o Criminal law is used to deal with a public wrong, also it carries with it a heavy stigma so the

kinds of purposes that must justify it are wrongs that must also very serious. Carry a sense of moral blameworthiness.

RJR MacDonald v Canada – Example of valid form and purpose

- Facts: Federal legislation which restricts tobacco advertising, also demanded cautionary messages be contained on all products offered for sale in Canada.

- Issue : Does this fall within the Federal Criminal Law power? Is the breach justified under Charter?o There were no restrictions on the sale and consumption of tobacco and there were a series of

exemptions for foreign countries, regulation is not absolute. How can something that is meant to stamp out a public wrong be okay when the act itself is completely unregulated? Also attack for part measures

- Majority : They find that the legislation is valid for two reasons, subject to the question of the Charter. - 1. Form: Clear prohibition coupled with a penalty - 2. Purpose: Serious health issues and is not at all colourable.

o Purpose of public health is a valid concern which they are allowed to legislate in regards to. - Toleration of “part measures”: they emphasize that there has to be room for the government to decide

what is the wisest way of dealing with issues. May find that an indirect approach is more effective than a direct approach, which just pushes it underground. (ex. of prostitution and suicide)

o Can criminalize the ancillary activity without also criminalizing the actual activityo The dissent says that prostitution and suicide are different because these acts are harmful in

themselves. But Webber thinks this isn’t true for prostitution- Prohibition coupled with complex exemptions is okay

o Ex. Gambling, lotteries, and abortion exemptions. You can’t bet on horse races unless it is done in compliance with a long list of rules.

- The closer it seems to be at the heart of purpose of criminal law, the more latitude that will be given to the form and vice versa.

o Ex. RE Firearms registry case, It looks very much like a regulatory structure but it is upheld under the criminal law power even though it departs from the form. The reason is because the control of firearms is very important for public order and protection.

o Possible to couple a prohibition with complex regulatory scheme, if the purpose is criminal. - The effect of the decision is that consideration of the formal requirement of prohibition and penalty

becomes less straightforward. - Dissent : The act is too far removed from the injurious or undesirable effects of tobacco use to constitute

a valid exercise of Parliament’s criminal law power.

R v Hydro-Quebec- Pushes the form question to the limit- Facts: There is a legislation scheme which contains many regulations for dealing with toxic substances.

There is a prohibition on the use of the substances, but even they are subject to a highly complex regulatory regime. You don’t even know what counts as a toxic substance until the processes have been established and analyzed.

o Arguments that we are too far away from the form of the criminal law as this is a complex regulatory structure that does not conform to the use of criminal law.

- Majority : they don’t use POGG because it’s not necessary, but if it were it would not be justified under it. The approach to criminal law should be kept separate from POGG, it has its own particular structure and the question is if that is satisfied under this structure.

o The broad purpose and effect is to provide a procedure for assessing whether a substance which falls within the ambit of the act, should be added to the toxic substance schedule and whether when the order is made to prohibit the use of the substance it should be subject to a penalty.

o Purpose: a procedure to weed out from the number of substances potentially harmful to the environment or human life only those that pose significant risks of that type of harm.

o He says the prohibition looks like something that is classically criminal law, the idea of prohibiting toxic substances. Falls under the form and purpose, but all it serves to do is define the content of the prohibition so that it can be triggered. So it is upheld

o Overlap into provincial powers is permitted by paramountcy

- Dissent : o Purpose: while the protection of the environment is a legitimate public purpose which could

support the enactment of criminal legislation, we believe the impugned provisions of the Act are more an attempt to regulate the environmental pollution then to prohibit or proscribe it.

o Form: there is no actual offence and so regulatory in nature o Also deal with POGG, doesn’t qualify under the singleness, distinctiveness and indivisibility of

national concern test. - Important points

o Is a case that is at the outer limit of potential use of criminal law powero Was a 5-4 decision, and seems to be getting at the outer limit of what can count as a prohibition

given the complexity of the apparatus. - Vitkenstein: theory of family resemblance. How definitions work. When we use a term/definitions it is

actually misleading to think of them as being defined by a set of necessary traits. In reality the terms work by way of family resemblances. May not have one universal trait that the terms have in common but rather a set of overlapping traits that make up the way in which we think of that term, no one of which is essential.

o In criminal law no one trait is necessary, like sometimes its purpose, or stigma, and other times they deemphasize them. There is a cluster of criteria, some of which will be present in some circumstances and some which will not be. It is a complex weighing process

Criminal Law Power - Provinces - There is a large overlap at the purpose level between the two- Form: Provinces can enforce regulatory offences via fine and imprisonment. - When the two are examined together, one can see that there is extensive overlap between what the two

levels can do. - What raises problems about the provinces actions (class discussion)

o (1) Moralityo (2) 2 people doing the same thing – punishing the act instead of the result o (3) Prohibition vs. Preventiono (4) Types of Punishment/Penaltieso (5) Supplemental Punishments

N.S. Bd. Of Censors v. McNeil – 4 areas where provinces can regulate- Facts : Provinces passed legislation that said all films submitted to the provincial censor board had to be

passed. Private citizens argued that the provisions of the act and the regulations were ultra vires of the Province. The Board was asserting authority to protect public morals to safeguard the public from exposure to films, ideas and images in films that it regarded as morally offensive, indecent and obscene.

- Issue: Whether the Province is permitted to create screening board to ban movies with unwanted content within its own boundaries on grounds of morality or under criminal law, which is Parliament?

- Decision : Provincial legislation is upheld. No reason to prevent the board from rejecting a film for exhibition in Nova Scotia on the sole ground that it fails to conform to standards of morality which the Board has fixed notwithstanding the film is not offensive to any CC provisions.

- Ritchie (majority) : Falls under regulation of local business and regulation of property, 92(13). Four rationales (The court strays away from a strict reliance on form)

o (1) Regulation of Business: all the provinces is doing is regulating a business or trade, in this case it happens to be the movie business

o (2) Regulation of Property/Law of nuisanceo (3) Prevention of Crime: it is preventative rather than penalo (4) Local Morality: legislation which authorizes the establishment and enforcement of a local

standard of morality in the exhibition of films is not necessarily an invasion of the federal criminal field.

- The first two really deal with 92(13): the private law remedies (contracts, property, tort).

- For the other two it becomes a little more difficult to tie it in with the provincial law - Laskin (dissent) : He would strike down this legislation. His issue is not with the overlap but the

legislation is in pith and substance about the enforcement of morality. Only the Criminal law can be used to enforce morality.

o Also no strong property dimensions, the fact that this is licensing doesn’t matter. Can use form to get the same substantive result. The courts decisions are shaped by civil libertarian concerns.

- Another issue in this case is a concern with the fundamental questions of human rights, like freedom of expression in this context. It is a pre-Charter case, so the court tries to pursue human rights ends using division of power reasoning. They try to protect a human rights interest by saying that only Ottawa can deal with that interest, morality in this case (Laskin’s view). Only Ottawa can be trusted to legislate in relation to deal with these types of issue.

Westendorp v. R – disguised attempt to punish immoral conduct- Facts : 2 women were approached by a plain clothing police officer to solicit prostitution. They are

charged under a Calgary by-law of being on the street for the purpose of prostitution. There was a concern in some cities in restricting prostitution on streets.

- Issue : Can the Cities legislate in this way?- Laskin has been most suspicious of provincial authority in past cases. He also had the broadest reading

of IJI in the 92(24) cases, like Natural Parents. He took position that Privy Council restricted federal powers to much and wanted to extend them back to what they should have been. So moves towards a more restriction on provincial power

- Decision : The court does not uphold legislation, because o No property regulation or use of streets, duplication of crimes o Public morality: a freestanding provision in Act trying to stamp out something that is seen as

being immoral, dealt specifically with prostitution. Could have legitimately regulated occupation of sidewalks, nuisance. Added later, doesn’t address things that interfere with streets

o Does not agree that in pith and substance is to protect citizens on the street from irritation and embarrassment of being unwilling participants in that market. Not dealing with nuisance

- It tracks the criminal aspect of prostitution. The form is very similar to classic criminal law form - Also adds a scale of penalties that are higher than other penalties

Re Rio Hotel Ltd. and Liquor Licence Board - Regulation of a business- Issue: Whether the province has legislative authority to prevent nude entertainment as one aspect of a

legislative scheme regulating the sale of liquor. Can the provincial legislation exist notwithstanding similar more general prohibitions in the CC

- Decision : Found to be reconcilable with provincial powers under section 92(13)o They do not say anything about morality, which had been the key element in McNeil and

Westerdorp. Rather that it is about the regulation of business, marketing tool being regulated. - Webber says they characterize it in a way that is disingenuous. Court is mis-stepping in ruling that this

was not in reference to moral concerns. - Dissent: Estey is very clear about his concern about morality, but he says that this can be done as a part

of regulation of morality. The federal government is not the only one allowed to regulate in relation to morality, it’s silly to say that the provinces have to regulate immorally.

- The majority emphasize the form, don’t have a simple prohibition or punishment but it is woven into a regulatory structure of a license. Also although there is some overlap, no direct conflict

Chatterjee v Ontario – Provinces authorized to force forfeitures of proceeds of crime- Facts : Accused was found with money which was obtained through drug related activity. Under CRA,

the province could force forfeiture from proceeds obtained from unlawful activity. - Issue : Is the Ontario CRA, which authorizes forfeiture of proceeds of unlawful activity ultra vires of

Ontario because it encroaches on Federal Criminal Law power.

o Argue that this is further punishment and provinces are doing what the Criminal courts could do. - It is a move back to more tolerance of the provinces actions. Also have the Charter now, so don’t have to

deal with the indirect division of powers argument that was used in McNeil- Decision : The regulations are seen as a valid exercise of provincial authority.

o Purpose of CRA: to deter crime and compensate its victims, broad enough purpose that both levels can validly pursue. Although forfeiture may have de facto punitive effects in some cases, its dominant purpose is to make crime unprofitable and therefore valid provincial objects.

Property Law: they emphasize the compensation to the community, victims and government, which is a classic aspect of private law. Really just about the regulation of property to the people who have harmed.

These are seen as being valid purposes of provincial legislationo Form: The crime net is spread very wide, no singling out of offences. Suggests that the province

is concerned with deleterious effects of crime in general rather than attempting in a colourable way to tack on penalty onto a federal criminal sentencing process. It is the property itself that is the object of the action, not a person so they don’t link any specific offences and the property.

All this takes it out of traditional criminal law form. Very different from an ordinary criminal law prosecutions. You are not double punishing because it is about property and a compensation scheme.

- Paramountcy issues : We can trust the ordinary paramountcy rules, but if in the future a problem arises, it can be sorted out be a trial judge. There is a genuine double aspect here.

o It will not be invalidated because of an “incidental” intrusion onto the field of criminal law. o The court does have options if it thinks that the conduct of the AG is abusive. Also if conflict

arises where dual compliance is impossible Paramountcy says CRA is inoperable to the extent of the conflict.

2. The Division of Powers: Trade and Commerce- Parsons decides that the vast bulk of economic regulation is provincial, not federal. It effectively

associates economic regulation with property and civil rights under 92(13)o It clarified the limits of 91(2): does not authorize regulation of all economic activity, mere inter-

provincial economic activity does not require that it fall under FG, most economic regulation delegated to provinces is within ss 92(15) and 16, three branches of trade and commerce

- There is a federal economic jurisdiction, which is created by way of exceptions, like federally regulated industries, inter-provincial works and undertakings like, aeronautics, radio communication, atomic energy, shipping, fisheries There are also a number of specific commercial matters that fall under federal authority (bills of exchange, cheque, banking)

- The provinces have the default authority over economics unless it is specifically delegated to Ottawa 91(2) + Commerce

- (1) Trade that is inter-provincial in scope & international- (2) The general regulation of trade affecting the whole dominion- (3) It contained political arrangements with relation to trade (this duplicates stuff that Ottawa has

because of its foreign affairs) - this is usually ignored

Interprovincial and International Trade (Branch 1 of 91(2))- We are dealing with commerce in a narrow sense: the buying and selling of goods- Ottawa has jurisdiction over a buyer and a seller where the sale actually crosses a boundary

o Must cross a provincial boundary or internal sales that are very closely related to international or interprovincial trade.

o If it occurs entirely within a province, then that sale is regulated ONLY by the province- One of the flashpoints for determining the federal and provincial jurisdictions - Supply management

systems (agriculture)o Ex. Farmers are required to sell their goods to a single buyer who then sells them to a central

board that engages in other sales. There is a quota for a specific type of product each yearo The justification for these schemes is for economic stability because farming requires long term

planning-provides for a regularization of the industry to ensure stable decision making and prices.

o If this is the case, how can the commercialization of goods cause a problem for these types of regimes?

You cannot control the prices and supply if you cannot control the buying and selling of those commodities also

To operate these schemes, you have to control the entirety of the crop, the authority with respect to this commercialization, indicates a bifurcated system.

o You have an attempt by one side or the other to set up a viable marketing scheme, it was difficult to create complementary federally and provincial schemes without encroaching, the courts upheld regimes that had provincial and federal regimes overreached their jurisdiction, they said it doesn’t matter where the line is drawn as long as there was overlap in both

A.G Manitoba v. Manitoba Egg and Poultry Association – Provincial legislation affects interprovincial trade- Background : Manitoba was a low cost producer of eggs and chickens. Ontario and Quebec were also in

a controversy because Ontario created surplus eggs, and Quebec had surplus chickens and sold them to Ontario. Here Ontario and Quebec established strong marketing boards to restrict the entry of products from other provinces into their provinces. Manitoba was being hurt by this and created its own marketing scheme based on Quebec’s. Referred it to the courts, hoping it would be struck down so the court could also strike down legislation in the other two provinces which kept them out of their markets.

- Facts : Have a plan which is intended to govern the sale of eggs in Manitoba, wherever produced. It is to be operated by and for the benefit of egg producers of Manitoba, to be carried out by a Board armed with the power to control the sale of eggs in Manitoba, brought outside Manitoba by means of quotas or prohibition

- Issue : Is this plan ultra vires because it trespasses on the exclusive legislative authority of Parliament to legislate on the matter of the regulation of trade and commerce (91(2))

- Decision (Martland) : the plan in issue not only affects interprovincial trade in eggs, but also aims at the regulation of such a trade. It is designed to restrict the free flow of trade between the provinces and therefore constitutes an invitation of the exclusive legislative authority of Parliament over the matter of the regulation of trade and commerce.

o It is ultra vires of province and not severable because inextricably bound up with those which concern interprovincial trade. Can directly restrict sales that cross boundaries.

o It turns on the fact that regardless of the specific transactions this regime applies to, it is staffed by producers who apply rules to their own interest. They will naturally favour themselves and go against the interests of others.

o It is a colourable regime structured in order to favour interprovincial producers. - Laskin : There is no evidence that they intended to impair interprovincial sales. But this regime is

attaching to goods upon their entry into the province, and therefore affecting them being entered. After they are in the province they can be regulated within it.

o Ways that it can impair: (1) It can attach to sales crossing a provincial boundary. This is what happens under this

regime. It touches the transactions that touch the provincial line. (2) Even if it doesn’t; it can be designed specifically to impair those sales. This is

Pigeon’s view, the main aim of the plan is to restrict or limit trade between Provinces so that Manitoba egg producers get the most advantageous marketing conditions.

Carnation (as discussed by Laskin in Manitoba Egg)- Facts : The vast majority of the product of the factory was sold outside the province. Milk producers

would bring its milk and sell it to carnation who would then sell it outside. Quebec created a collective bargaining regime in which it set the price for milk producers to sell to the factory. This regime changed

the price of milk sold outside the province, but this was found to be okay because it was primarily intraprovincial, was never intended to make a difference to the other provinces

o The intention of the Quebec legislation was not to influence sales going outside of the province. The impact on the international trade was incidental, narrowed the trade and commerce branch.

o Whereas in Manitoba Egg, the regime was intended to influence the selling of eggs across the Manitoba boundary. They were using their power to indirectly have an impact on another, it is the colorable intention of this legislation that is problematic.

- Laskin does invoke the existence of a national market, Section 121 is the section which deals with the removal of customs regime between the provinces. It prohibited the customs duties between the provinces. Has traditionally been interpreted to prevent specific customs duties being imposed on goods across provincial boundaries.

Developments in incidental effects since Carnation:Murphy (SCC, 1958) – purpose of interprovincial

- Dealt with the regulation of sale by farmers of grain to grain elevators. Which is a local transactions of an exported product

- Question: can Ottawa regulate the grain that is destined for export, wanted to regulate the quality of grain for the purpose of commerce. Can do this if

o (1) is it a good that is destined for exporto (2) The reason is to control international or interprovincial trade

- Ottawa can govern a transaction that deals within one province if it is for the purpose of international trade

Caloil (SCC, 1971) – purpose was interprovincial so within one province ok- Local transactions in an imported product, oil- The regulation would divide the Canadian market into zones reserved for domestic and imported oil- Facts : before the oil crises, domestic oil was more expensive so govt had structured its market for a

demand of domestically produced oil. The regulation would create a border line which said that you can only buy domestic oil in that area. This protected the Western market but the way that the line was drawn, it ran through a certain part of Ontario so Ottawa was dealing with just one province.

- It is permissible for Ottawa to govern transaction between one province, Ontario, because the purpose was interprovincial and international commerce. However it is only to a certain extent, to regulate the certain market.

Klassen (Manitoba CA, 1960) purpose was interprovincial, some incident allowed- Regulation of local transactions in a product, the vast bulk of which is exported- Here it was local grain transactions when some Manitoba-consumed grain would have been captured- Facts: Ottawa’s regime that dealt with grain elevators would have dealt with some grain that was being

used by domestically, although most went out of Canada. The question was if that constituted a breach- Since it was such a small breach, and the purpose is interprovincial, we will allow it. Even though the

whole good was not exported and it dealt with some internal sales, since it was so small, the regime was be upheld.

- The idea that there are situations where the exceptions are so small that it doesn’t require a re-classification. “De minimus” in the classification as a whole.

These three cases allow federal regulation to apply to some intraprovincial trade because of the purpose of interprovincial and international trade. The question is whether Ottawa can still have regulation even though it is not fully external. Ottawa can govern because it is a product that is overwhelmingly exported.

General Regulation of Trade [Branch 2 of 91(2)]

- Separate branch from federal control over interprovincial and international trade - Key questions:- (1) How does “general regulation of trade” differ from the regulation of particular trades conferred on

the provinces (under 92(13))?- (2) How does “general regulation of trade” differ from the private law, which is also a core provincial

jurisdiction (under 92(13))?History of General BranchParsons (1881)

- “It may be that [the words of section 91(2)] would include general regulation of trade affecting the whole dominion.”

- 3 propositions: (1) Does not correspond to the literal meaning of the words regulation of trade and commerce, (2) Includes not only arrangement with regard to international and interprovincial trade but it may be that it would include general regulation of trade and affecting the whole domain, (3) does not extend to regulating of a contract of a particular business or trade

Dominion Trade and Industry Act reference (Canada Standard case) (1937)- “Canada Standard” – voluntary standard for products

o It dealt with grading standards for agriculture. It was a voluntary standard and had been upheld under trade and commerce.

- But Dominion Stores (1979) casts doubt on this case, may have been wrongly decided.

John Deere Plow v Wharton (1914)- Federal incorporation power, but NB: better justified under the “gap test” of POGG- It established a federal authority to incorporate companies and was justifiable under section 91(2)

For a long time there was a question about whether the general branch even existed because two cases were based on it and they could be seen as being based on two other grounds entirely

Modern cases:Macdonald v Vapor Canada (1976)

- Facts: Legislation that dealt with trademarks and created a civil action. Court held that this could not be justified under 91(2) because too much overlap with private law.

- This was such a large and vague provision that duplicated a lot of the private law remedies. The general branch was not satisfied in this case, but shows that it may apply

- Proposed three hallmarks of validity for legislation under the second branch of trade and commerce - (1) The impugned legislation must be part of a general regulatory scheme- (2) The scheme must be monitored by the continuing oversight of a regulatory agency- (3) The legislation must be concerned with trade as a whole rather than with a particular industry

Labatt Breweries (1979)- Federal regulation of beer labels (light beer) found to infringe on provinces authority to regulate

production processes. To specific to fall under general - Laskin dissenting: regulation of a particular business or trade.

CN Transportation (1983)- Combines Investigation Act upheld under general branch of 91(2), but only by a minority of the Court - Beginning in the early 1970s the idea that general trade and commerce existed came up and started to be

elaborated on. - They added 2 factors to the Vapour Canada ones - (1) Legislation should be of a nature that the provinces jointly or severally would be constitutionally

incapable of enacting

- (2) The failure to include one or more provisions or localities in the legislative scheme would jeopardize the successful operation of the scheme in other parts of the country

General Motors v City National Leasing (1989)- Issue : Section 31.1 creates a civil cause of action, which are within the domain of the provinces to

create. So can it be declared valid under Federal Trade and Commerce (91(2)), if it is integrated in the broader section in such a way that it is intra vires?

- Facts : CNL alleged the exclusion from the preferential interest rate support program was price discrimination contrary to section 34(1)(a) of the Act and they could bring an action under 31.1.

o GM argued that the section didn’t satisfy any of the necessary indicia of valid trade and commerce power nor could it be characterized as necessarily incidental to a valid scheme regulating trade and commerce.

o CNL argued that it was within federal competence and sustainable under the “general” branch of the federal trade and commerce power as economic legislation affecting the nation as a whole.

- The civil action provisions were included to limit the number of inspectors. The government wanted a more efficient way of enforcing these regimes, and civil actions was a way to empower people in the sectors to bring their own actions to enforce the more general regime. If you were successful, you would get more damages as an incentive to enforce the regime.

- Decision : Civil remedies in Combines Investigation Act, upheld. Life breathed into general branch of 91(2). Note citation of history of 91(2) above, Parsons and three branches

- When examining cases which have considered section 91(2) the courts have been sensitive of the need to reconcile the general trade and commerce power of the federal government with the provincial power over property and civil rights

- The court addresses two questionso (1) The scope of the general branch of trade and commerceo (2) The test of validity that is appropriate when you have a provision that goes too far in a

regime, the rest of which appears okay. - They uphold on the basis of the general branch of trade and commerce and in doing so they

enunciate five part test. This list is not exhaustive, it is a complex weighing of considerations. - Have 2 sets of issues: Validity of the Act and the Validity of the section in question. - Validity of the section under 91(2):

o (1) General regulatory scheme (leg must be part of general reg scheme)o (2) Oversight of regulatory agency. o (3) Trade as a whole rather than a particular industry. Meant to distinguish provincial to the

general trade and commerce o (4) Provinces would, jointly or severally, be incapable of enacting regimeo (5) Failure to include one would jeopardize entire scheme

- Validity of the Act- (1) Need to consider whether and to what extent the impugned legislation can be characterized as

intruding onto provincial powers. Is there intrusion? To what extent?o This is normally degree, will be found prima facie but need to decide what extent it impeaches

- (2) Ascertain the existence of valid legislation. Is the main legislation valid?o Here look to see if there is a regulatory scheme, this is a basic characterization of valid trade and

commerce.. - (3) Whether the provision can be constitutionally justified by reason of its connection with the valid

legislation. Is the impugned provision sufficiently connected to the main legislation? o The court must focus on the legislation as a whole, and the impugned provision in relation to it. o Weigh the extent of the intrusion to the degree of integrationo In this case it is very restricted power, it is a very restricted intrusion on civil powers

- Application : The structure of the regime shows that it is meant for a scheme in the public interest. Also anti-competition policy is very distinct and is meant for federal government, very hard for the provinces

alone to deal with effectively. They apply the 5 part test, it passes because it is designed to control an aspect of the economy that must be regulated nationally if it is to be regulated at all. This regime happens to have incidental affects which are isolated, need to see whether it benefits from the validity of the regime as a whole or if it is simply tacked onto the regime.

- This test ends up being very similar to two powers allocated to Ottawa under 91. o Weights and measureso Regulation of money and legal tender

- They are very general matters that affect economic activity as a whole and also have to be common for there to be a national market.

- What satisfies this power?- National Securities Act: proposal to develop this legislation and general trade and commerce is only

basis on which it could be justified. However might have problems at 4 and 5 because provinces already have legislation in the area.

- NAFTA: regulates interprovincial/international trade but also intraprovincial trade. Not justified on first branch or on second branch, although there are arguments that it could be, because Ottawa would essentially be regulating in relation to specific trades and industries by making industry-specific standards (not just general rules applying to all industries) 3 ways that a treaty is entered into Canadian law (1) Signing: this is an executive action. (2) Ratification: the Country becomes bound into Canadian law, accepts the terms of treaty as being binding on Canadian law. This is also an executive action, formed by the Federal Executive. (3) Implementation: actually execute the obligations that are imposed by the treaty. This is something that the Legislature can do.

3. Division of Power and the Spending Power- Often the legislature may be able to approve certain laws and even if they are formally enacted they

cannot be carried out without money.- So it is possible that the formal rule making interacts with the informal control over resources. The

control of funds may have an impact on the laws that are passed and therefore it is highly controversial- Ottawa has played a huge role in some areas that are entirely within provincial authority.

o For example, universities fall within provincial power, but Ottawa impacts it via the money it has to spend. Also Ottawa established the trans-Canada highway network by offering to share the costs although highways fall completely under provincial authority. Ottawa also covered half the costs of Welfare payments, even though these are areas of provincial power

- Provinces want this money, but they want it without conditions. They argue that Ottawa has no right to attach conditions to money that is being spent in their jurisdiction. Main area of problem is health care. Ottawa supports health and so sets up a number of rules that deal with healthcare because they are spending money there

- Courts have held that the spending power is valid, but they do not agree with the power or conditions that they impose.

(1) History- The federal spending power exists because the finances the provinces get are disproportionate to its

responsibilities. Ottawa has extra money which they offer to the provinces, but they add conditions to it. - Under 91(3) Ottawa has power over any mode or system of taxation. The provinces however are limited

to direct taxation, 92(2). (Direct: the burden is on the person to whom it is imposed) - This is because Ottawa took over the entirety of finances during the war because they wanted a

centralized form of taxation during that time. After the war there were proposals to keep it that way, good to have Ottawa control all the fiscal resources. Argue they would have been better able to deal with the Great Depression and should keep control to prevent future economic crises.

- There was no formal change to the constitutional division of powers. But Ottawa tried to gain control by not changing the taxing modes making it harder for provinces to impose tax. They offered to give the provinces grants so that they could use the money for certain programs.

(2) Validity

Andrew Petter- By design and effect, the spending power runs counter to the political purposes of a federal system. The

provinces feel tempted to join federal programs lower on their list for the 50 cent dollar. - Ottawa should be prevented from spending money in areas where it does not have jurisdiction. The same

type of restrictions that are imposed on the legislative powers should be imposed for the federal spending power

- If Ottawa is spending and dealing with education and health, who do you hold accountable for these problem. Does it create distortions in the accountability system

- It is not as though the spending of money is separate, it is raised through legislation. Therefore it is a mistake to deal with spending as being separate from legislature, so similar that it should be treated as being the same as legislative action

- If the provinces strike it down, they may not get the money anymore. The federal government will still tax but will just use it for their own purposes.

- Petter says that Ottawa’s spending role should be held invalid - The government has taken over the purse strings but has not given it back. It restricts initiatives

Webber- Good reasons why the spending power should be held to be constitutionally valid. - This does not meant that it fits well with the constitutional structure as a whole. Good to have responses

developed within the system Winterhaven Stables v Attorney General of Canada – Spending versus legislating

- Issue: Canada, by the power of its purse, has unconstitutionally coerced the provinces to participate in certain programs proposed by Canada with standards and criteria established by Canada, although such program lie exclusively within the jurisdiction of the provinces

- Appellant: argues in pith and substance it is legislation in relation to matters exclusively within the legislature’s competence of powers.

- Respondents: while statutes may have effect on matters within exclusive provincial competence, they are not legislating in relation to it. They are statures authorizing the allocation of federal funds to assist the provinces in providing services

- Question: whether the conditions attached to this spending legislation are colourable as distinct from setting legitimate national standards.

- Decision: In relation to provincial matters, legislation to provide financial assistance to provinces to enable them to carry out their responsibilities is okay. Federal government can spend money as it wishes and can attach conditions as long as they don’t amount to a regulation or control of a matter outside federal authority.

- They have been presuming the validity on the basis of spending versus legislating- The spending of funds and influence of spending is not the same as control over legislative powers- Webber says that this is valid, but that it should be controlled.

Re CAP (1991) SCC - Facts: Ottawa cutting spending on certain welfare programs, provinces argue can’t change contributions- Decision: original act did not freeze payments but guaranteed what is authorized from time to time.

Ottawa not committed to pay certain amounts indefinitely. Also said that Parliament can spend money in any way it wants and can also stop.

(3) AcceptabilityWeber

- At one time, Corporations were limited by the objects and purposes that were set out. If they acted beyond those purposes, those actions were ultra vires and void.

- They were established by conscious state action in order to pursue special purposes. They were seen as a special privileged form that you are allowed to adopt only for special purposes in which it has an interest. If you step outside this special form and limited liability and if you go beyond it, it is ultra vires

o This doctrine no longer exists in the corporate area

- Why it no longer exists: o People contracting with corporations would be highly inconvenienced. They would have to go to

the articles of the corporations in order to see that they could in fact stay within the purposes of the corporation.

o If they didn’t do this and the corporation didn’t have the capacity, then the company would not get paid

- This helps you understand why spending should be treated differently than legislating- Governments act just like other people do, and they need to buy things, etc. If it entered into a contract

that went beyond its purposes would this be ultra vireso Like if instead of buying something from international markets it chose to buy from provincial,

would this be ultra vires because it wants to help foster provincial markets. o Spending is just like other activities of buying, if contracting and other activities should not be

subject to ultra vires, then why should spendingo By spending it is doing something that any other legal person can do. It is not exercising any

coercive powers that it has by legislating. There is not the same compelling need to assign similar controls

o See the same type of reasoning in the Winterhaven caseo It is not legislating or using the coercive powers, therefore use of the spending power should

not be ultra vires. It is problematic but should not be treated as being valid or invalid. Should be considered valid but then perhaps controlled by other means.

- Petter would say that they are still spending money with legislative approval. They cannot make or spend without legislation, so this issue is not answered

o Webber: the legislation is being used differently. It is not being used directly to control the actions of people in society it is simply a mechanism of internal control. Way of managing in a responsible and accountable manner the funds of the Canadian people

- Tensions surrounding the spending powero Appears incompatible with the structure of federalism yet some of the most publicly popular

programs (health care) are the result of the SP, often the programs brought through the use of SP are connected with social rights and are central to the Canadian identity, unity and distinctiveness.

Solutions to Problems- Regardless of whether SP actually valid, the best solution is a rebalancing of fiscal spending with the

provinces given opt out ability with without double taxation.- History shows attempts to Constitutionally constrain SP have failed - The Meech Lake and Charlottetown Accord’s

o Proposed a framework to regulate federal spending power. o You could opt out of the federal program if you had an equal system o A more subtle way of controlling it rather than calling it ultra vireso Procedural ways of working out problems thru consultation.

- What the courts have tended to do, is that they don’t say the spending power is just fine, but they try to control it

- After failure of the two Accords, Parliament has said that we will observe these restrictions ourselves, not constitutional. Will let provinces opt out with compensation if they create comparable programs.

- The Social Union Agreement was signed to promote Pan-Canadian unity thru consultation. All provinces except Quebec agreed.

- Intergovernmental negotiations have focused on a more subtle mechanism of control- Should not interpret 91 and 92 as being controlling for everything, but it is mostly in relation to

legislation. Like the idea of provinces spending in broadcasting which is clearly federal- Ottawa’s control of funds does create distortions, but there should be some sort of control. However this

should be done via subtle steps rather than just invalidating the spending power.

4. CHARTER- Division of power is more about who gets to do what, it is not about limiting, it is which level gets to

control what and what democratic institutions have the power to make these decisions- However we are now looking at things that are dealing with the restriction of government. - Overarching ideas is that the human right guarantees of the Charter should limit what the government

can do- The Charter is not the universe of human rights within our law. There are many other ways in which

human rights can be advanced which don’t deal with the Charter at all. - We have many other mechanisms

o (1) Canadian Bill of Rights or Quebec Charter of Human Rights and Freedoms: These statutory bill of rights exist independent of charter

o (2) Division of Powers: It can be interpreted as having a human rights dimension to it. Some things had a rights limiting affects so only Ottawa can deal with it

o (3) Implied Limitations: Parliamentary Privilege, Independence of the Judiciary, “Implied Bill of Rights”

o (4) Aboriginal Rightso (5) Human Rights Acts/Codes: They capture private citizen – private citizen interactionso (6) Denominational Schools o (7) Interpretative principles: Mercure: rights do go away with timeo (8) Administrative Law: Ron Carallei, admin law has guaranteeso (9) Criminal Law: The right to be presumed innocent has been around long before the Charter

- The Charter only really deals with one aspect of the situation, it entrenches into the constitution human rights guarantees

o It is also concerned with restricting state action, different from human rights codes o It is treated as being a symbolically important enshrining of rights

- 4 generations of rights: - (1) Civil and Political Rights: Charter rights, human rights codes and the Bill of rights. Ensures the

balance between the legislature and the executive- (2) Economic Rights: Minimum wage, labour relations acts- (3) Social Rights: recognizing substantive equality- (4) Rights Beyond the Human Realm (environmental and animal rights) - Overwhelmingly first generation rights (civil and political) are covered with by the Charter.- The premise of the Charter is that the state has to be limited. But most of the protection of other

generations of rights is via the state. First generation rights are a product of state action rather than limitation. It was adopted by agreements of the governments of the day. It is important to keep in mind that it is the restriction of government that protects rights most effectively

5. Section 32: Application of the Charter32(1) This Charter applies to (a) To the Parliament and government of Canada in respect of all matters within the authority of Parliament including maters relation to the Yukon and Northwest Territories (b) To the legislature and government of each province in respect of all matters within the authority of the legislature of each province

- Section 52 often arises in this discussion as it establishes pre-eminence over pre-existing law. - Presumption that Charter applies distinctly to governmental action. This rationale is that there is a

suspicion when it comes to rights and the government. Thus higher level of scrutiny is required for government than for private individuals.

Retail Wholesale and Department store Union Local 580 v. Dolphin Delivery – governmental action not private action

- Facts : the judge placed an injunction to prevent the picketing of a union. - Question: Does the Charter apply to private litigation divorced completely from any connection with

government. - Decision: Charter can apply to common law or private litigation so long as it is the basis of some

governmental action which it is alleged infringes a right. - Cannot equate a court order with Charter application of government action because this would mean that

all private litigation would be subject to Charter. Will only apply to the judiciary when they are acting as an administrative entity.

- Section 52 is broad enough to cover common law Charter application - Commentary: Hogg would argue that it should apply because Charter should apply to situations where

rights limiting conduct emanates from state actor (vs. private actor). However, in MacIntyre’s reasoning, language slips to “private litigation”

- Webber: Later decisions have made it clear that judges are subject to the Charter when they are the author of rights limiting law. While not overturned, suggests that when judges are acting as parties or in their “institutional capacity” rather than “law-interpreting” capacity, they are subject to Charter.

- Charter criminal provisions/restrictions clearly contemplate binding judges/courts. Like BCEGU where the judge granted an injunction in his own interest.

- Also, weird result because in Quebec these torts are reduced to statutory form so Charter would apply to economic torts there. However, in Quebec, held that Charter does not apply to private litigation even if in Code (Daigle).

McKinney v University of Guelph – 2 Part Test: Part of government and Control/function- Issue : A university had polices which required mandatory retirement and argued that this violated

section 15 of the Charter. Does the Charter apply here- Decision : Charter does not apply to universities. The mere fact that an entity is a creature of statute and

has been given the legal attributes of a natural person is no way sufficient to make its action subject to the Charter. Must be public decision makers.

o Just because they receive government funds does not mean that they are part of the government, universities have their own governing body.

o Only government requires to be constitutionally shackled to protect the rights of people. Need to be protected from government and not private action

o You can expect that since the state is meant to represent all of us, it should be bound to high standards of conduct that should not apply to individuals.

- Two principles emerge - (1) If something is part of government, then the Charter applies to everything it does

o Executive, ministers of Crown are part of governmento Legal Control is vested in the Ministers of the Crown, then that entity is part of the Crown. o Look at the construction of the party and the delegates, to determine the extent of the control.

Does it pursue its own goals?o In this case, universities were not controlled, the Board of Government made its own decisions.

However the community colleges are different because the board of directors are directly controlled by the ministers of the Crown. So this determination is very fact specific.

- (2) May be held to exercise a governmental function attracting Charter scrutiny, if specific role/function/task that has been controlled by government.

o The emphasis that the specific role of that entity is very important. The court says that just a government function does not attract Charter Scrutiny. This is too loose a test, how do you determine when it goes on a range of different ways. They tend to rely on more specific tests and reject the notion that entities that exercise vague governmental function is enough.

o BUT NOT the exercise of a general governmental function

- Is there a window open in this test? Especially the last exemption o They leave open whether Municipalities are covered by the Chartero Not legally controlled in the same way as other government parties. They are not controlled by

the Ministers of the Crown, rather are controlled by the people who vote for them and they do not have a specific governmental role.

Eldrigde v BC (AG) – is under Charter because of specific role- Issue : Is the failure to provide sign language interpreters as an insured benefit under MSP a violation of

section 15? o In particular does the Charter apply to the actions of particular entities, hospitals and medical

services commission exercising discretion conferred by legislation- (1) Is the hospital or services commission part of government, so they automatically become part of

Charter scrutinyo Court finds that hospitals are not part of government. This is not relevant

- (2) The entities were given a very specific task that is to decide what is covered. Even though they are not government entities, the delegated responsibility is subject to Charter scrutiny because it is so specific. They were implementing a specific government program/policy

o Here the statue does not violate the Charter because all it does is confer authorityo The power that is conferred is very specific. This task is governmental in nature and therefore

subject to the Charter. - Also note that the P makes three different claims. You’re never sure how the court will come down,

therefore you have to make many different arguments. Godbout v Longueuil (City) – applies to municipalities

- The only case decided by the SCC in relation to the Charter’s application to municipalities- Important to remember that majority of the judges applied the Quebec Charter, but dissent did apply the

Canadian Charter- Facts : The municipalities said that any person who works for them must reside in the municipality in

which they work. - Question : does the Charter apply to municipalities?- Decision (Dissent) : Municipalities exercise a “quintessentially governmental function”

o (1) They are democratically elected and are accountable to the public, electorate. (2) Have a taxing power. (3) They are empowered to make laws and administer them. (4) They derive power from law-making, exercise legislation and enforcement of legislation, quasi-governmental.

- Once something exercises this type of function, everything it does is subject to Charter scrutiny. In this case they are acting in their capacity as an employer but it is still subject to this type of scrutiny.

- This can apply to Parks Boards, Police Boards that all have their own represented councils, has not been decided but most likely does apply.

- Need to be careful that this is a minority decision; also it is a very specific decision, look at the reasons as to why they have gone a certain way. Represents a return of the functional test that was rejected in McKinney, strong argument that municipalities do not pass the McKinney test as per the Charter

Vriend v Alberta – not private, looking at legislature’s failure- Charter does not apply to Canadian society at large; need some action by the executive government. - Facts : Specific grounds of discrimination have been set out in the Individual Rights Protection Act and

sexual orientation was not included in Alberta. - It looks like in substance the Charter is being applied to a private circumstance. But the courts can rule

on this because it is legislature’s failure to extend protection of a law to a particular group of people which is a violation of constitution.

- Does this mean that Courts can redraft legislation that protects rights? o They may extend it to some place where the legislature did not intend it to. Therefore it may

extend to private legislation

o Very challenging how you figure out how to deal with under inclusiveness. Implications might be that they adopted a part measure. It may be extended to the full range. How do you distinguish this from preventing part measures?

6. Section 33 – The Notwithstanding Clause33(1) Parliament or Legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act of a provision thereof shall operate notwithstanding a provision included in Section 2 or Sections 7 to 15 of this Charter

- It allows from a breach of Section 2 and Sections 7 to 15 - Why are certain rights excluded from the override

o They were exempted from the application not because they were more important but because in certain parts of the country they were seen as less important and so were more likely to be overridden.

- By invoking the notwithstanding clause, it can no longer be subject to challenge on Charter grounds. - But there is a “sunset clause”; it is limited for a period of 5 years, the maximum duration of Parliament. - It has been used mostly by Quebec, also by Saskatchewan, Alberta and Yukon

Ford v Quebec – only require an invocation of the section numbers- Facts: Quebec had not signed onto the patriation of Constitution and they objected to the fact that it was

adopted without them. Therefore, they used Section 33 to exempt all their legislation from the Charter. - Issue: Charter of French language says that public signs must be in French, argument that this infringes

2(b) of Charter. - Question : Is there a valid and applicable provision enacted pursuant to Section 33 of the Charter that

says French Charter shall operate notwithstanding Section 2(b) of the Canadian Charter. - Decision : Both of the sections are struck down here. Both would have been stuck down under the

Quebec Charter, but only one would have been struck down by the Canadian Charter. o The sign law provision is stuck down on the basis of the Quebec Charter and not the Canadian

Charter. o Although the PQ always invoked the notwithstanding clause, the Liberals did not. Therefore over

time the old ones expired, and the one that was applicable to the Charter of the French language as a whole, had expired by then.

o But the sign law provision had been amended and the 5 years had not yet expired but it had expired for names of corporations provision

- The Ps challenged the invocation of the NWC, with respect to the Canadian Charter. They said it was an ineffective invocation of the NWC because if you were going to invoke it,

o (0) the invocation of the NWC in this case only applied to the enacting words A later amendment to the statute that says, only the enacting framework and not the

subject of it was subject to the NWC. It was rejected as being a nonsensical argument. o (1) Need to name a specific provision of the Charter,

This is because of the use “a” in section 33, so can’t have a blanket clause for all sections Also need to be specific to signal to people the violation of rights in order to start the

legislative/democratic debate that lies behind the use of S. 33. o (2) Need to provide a link or a prima facie justification between the Charter provision and the

legislation. Need to be specific about what the potential rights violation is.

- These arguments are rejected. - Court says that simply a “form” requirement is needed and stating the relationship makes it a

“substance” requirement. The proposals given go well beyond what is need to achieve a legislative debate and are created to frustrate the purpose of the clause.

- Ratio : All that is required is the invocation of the sections – a minimum requirement is simply stating the numbers. No requirement that there be an actual breach, can use it in a blanket fashion and this is sufficient as it shows the seriousness of the proposal

- But you cannot make the application of NWC retroactive. Cannot use it to set aside rights retroactively. - Dialogue: When these were struck down, the national assembly re-enacted modified sign law provision

and protected them using NWC. It did have real impact, a number of ministers resigned from the government. A number of people also formed equality party in Anglo-phone ridings. It was also an event that led the turning of Canada against the Meech Lake Accord.

o If the Liberals had moved to a measure that was recommended in Ford, it would have been accepted by Quebec. But after the court makes a judgement, the Quebec government felt the need to invoke the NWC to protect the policy and language rights of people from Quebec.

Webber on Dialogue Theory and the Role of Courts- Dialogue theory is perhaps the best justification for the existence of section 33- Petter argues that it makes sense for s. 33 to exist so legislatures can make laws that conflict with the

decisions of the courts that we don’t agree with. Although democratic process is not perfect, it is better than the courts, and they should not be making the “reasonably contestable decisions” on rights violations.

- Why do we have judicial review in the first place, why do we allow judges to make these fundamental question, if they are really open to reasonable disagreements

o Why not leave those questions open to the ordinary mechanisms we use in society, we vote- If these things are really matters of reasonable dispute, why bother giving them to courts in the first

place. He says the use of dialogue theory to cover this is not going to solve it. Why should courts be allowed to make these types of decisions?

o Legislatures should be allowed to decide these issues, rather than leaving them to the dictate of the 5 judges of the SCC

o What justifies giving 9 individuals who come from very particular professional backgrounds, who don’t reflect Canadian society, the say in these types of issues, when one has no come-back against them? They are very insulated and don’t really have a proper line of argument

- Webber:- What exactly is different about the courts is that they look at particular situations and legislature may

ignore the impacts on the individual. They are so focused on the general issue that they neglect the impact that a particular policy may have to a specific group.

- But there are drawbacks to this because the courts are really focused on two parties to a dispute, they are in the hands of parties for the evidence. If the parties don’t come and lead evidence, the courts don’t know. So they are operating in a very small silted bubble. It constructs Charter challenges with individual against the state. But in these cases it is not proper because the State is not the only one involved. Don’t realize that if they strike something down, it will actually be impacting a lot of other people. Need to focus on more than just the constitutional differences.

- The courts have strengths but many drawbacks. May lose sight of the general population, they also come from a very specific population.

- Best solution might be a balance between looking at Canadian society, gathering evidence and then making a more general policy decision. Whereas courts are designed to look at particular influence on a particular part of society.

- Need to design so that you have a good balance between the strengths and weaknesses. - Section 33 has been so rarely used that there is a question as to whether it has been used in the proper

way- The Busshel and Hogg article put a lot of emphasis on the use of section 1. Had an attempt to use section

1 to justify the use of legislation- Also the use of general remedial orders or the use of general principles.

Dialogue Theory - Section 33- Justification for dialogue in the Canadian Constitution: both courts and legislatures have strengths

and weaknesses. S. 33 and ability of the court to strike down legislation work together; allow blind spots and constraints of each to be checked by the other. Must design system so to ensure good balance of institutional strengths and weaknesses

- It remains a very controversial part of the Charter- The courts have used dialogue. In O’Conner they were dealing with the rape shield laws. Parliament

wanted to prevent the use of statements made by a counselling service of a victim of sexual assault in trial. These documents were made privileged by Parliament. But in O’Conner the Court said that the right to a fair trial trumped those provisions. After this decision Parliament went against the majority and used the minority’s decision to justify their actions. This came up again in the Mills case and the SCC upheld Parliament’s decision. They looked at the seriousness to which Parliament grappled with the issue and Parliament had information which the Court didn’t therefore it is appropriate to have this type of division or roles, or dialogue between the court and the legislature.

- In cases of complex social situations/policies Parliament is in a better position to assess then the Court.

- Since the issues are complex and require a balancing of a wide variety of situations, the Court is quite alive to its capacity to judge different aspects of the matter and adjusting its role to decide if it is appropriate for them to answer. More above

Hogg and Bushell Article- Where a judicial decision is open to legislative reversal, modification or avoidance then it is meaningful

to regard the relationship between the court and the legislature as dialogue- Charter can act as a catalyst for a two-way exchange between the judiciary and legislature on the topic

of human rights and freedoms, but it rarely raises an absolute barrier to the wishes of the democratic institutions.

- It is possible for the legislature to overcome a judicial decision striking down a law for breach of the Charter because of 4 features of the Charter: (1) Section 33 (2) Section 1 (3) Qualified rights, Section 7,8,9,12 (4) Guarantees of equality.

Petter’s Criticisms- Dialogue theorists tend to exaggerate the influence the legislature in responding to judicial decisions- They play down the privileged position that courts occupy in the Charter dialogues- It ignores the extent to which Charter rights shape public debate and influence public policy

independently of any dialogue taking place - Seems more willing to compromise democracy than its predecessors.

Khadar – Example of courts deference to the Charter- Facts : dealt with a teenager who was apprehended in Afghanistan when he threw a grenade which killed

an American solider. He was in Gutanamo Bay and was charged with murder and was subject to torture. The Canadian government had been implicated because it gave information to the American authority which was used in his interrogation also he was a Canadian citizen.

- The Court had to ask itself what is an appropriate remedy especially since the lower court had said that the Federal Government should request his return to Canada. UK and Australia had asked for their citizens to return, but due to Khadar’s family, Canada had not made such a request

- The Court finds that the remedy which had been granted by the lower court is inappropriate. o This kind of remedy may be granted in some situations which deal with the operation in external

affairs. o But in this case they will not do so because Khadar is not in the hands of Canadian authorities

and this requires complex negotiations in which many different options can be usedo Therefore they should leave to Ottawa precisely what that the conduct should be. The

appropriate remedy is to declare that the conduct was unconstitutional and leave it up to the federal government to determine the precise response which should be made

o It is allowing space for another branch of the government to make the judgement. It would be inappropriate for them to stipulate the outcome which falls from this.

- Webber argues that rights should be interpreted at a general level so they can be used in different ways. May be a way of providing an interpretation in different ways because it becomes difficult for courts to flesh out details.

o The response to Khadar seems to be in this way. We see the conduct as being wrong, but it is hard for us to stipulate what response should be used. Therefore we will leave it up to the good faith of the executive.

o But if you are granting such leeway, you have to have an executive which is going to be responsive.

o Here the executive did not act; therefore the P are left in a position in which there is no remedy. Therefore the court will be reluctant to this type of approach in the future

- This is a pity because it is good for courts to be able to realize there is an issue, and then not have the proper mechanism to respond so they differ to another party.

- But they will be reluctant to do this now, which is not good because they are making decisions which are they are not properly equipped for.

- The court may be forced to be more intrusive because it cannot count on the good faith of the government to carry out certain decisions.

- There is good reason to allow latitude for each part of the government to fulfill its function. So dialogue is very important when each body brings certain strengths and weaknesses to the role.

o This is what motivates the Kadhar decision, they say that we can make a decision but since we are not in the best position to determine what to do, we will leave it up to the executive to respond

o Since the executive does not respond, leads to the questions of whether the courts will in the future be likely to take part in this type of dialogue.

7. Section 1 - Limitation Clause

(1) The Charter guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

- Limitation clause, primary role is about the guarantee of rights and so the limitation should be read narrowly as the exception rather than the rule, in Oakes

Part One: Prescribed by law- R v Therens: limit will be prescribed by law if it is expressly provided for by statute of regulation or

results by necessary implication from the terms of a statute or regulation or from its operation requirements.

- Irwin Toy: 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”

- Osborne: Where laws are too vague there is no “limit prescribed by law” and so no section 1 analysis is necessary as the threshold requirement for its application is not met

- The court finds that common law rules are sufficient to limit rights, they don’t need to be found in statue. Also that the prescription of those limits do not have to be clear. As long as the restriction pose an intelligible standard, that is sufficient to satisfy these terms in section 1

- Can also use some form of discretion - Vagueness is no longer dealt with here, but it is rolled into the application of the Oakes test

Part Two: Oakes Test- Burden of proof: the state or the governmental actor must establish the existence of the limitation. It

starts out on the person who is alleging the breach, but once they establish a prima facie breach, it then shifts onto the government to prove whether that limitation can be justified.

- Standard of proof: balance of probabilities, the civil standard.

- Test: - (1) Purpose: “Pressing and Substantial” - (2) Proportionality Test

o A. Rational Connectiono B. Minimal Impairment: almost always this is where the court holds its inquiry. o C. General Proportionality

It is very rare to have discussion here because at times the right breach is not that severe - When applied in the criminal context it will be more rigorous, but when dealing with issues of complex

social policy, the courts will give more deference to the legislature.

8. Section 2(a) - Freedom of Religion

2. Everyone has the following fundamental freedoms: (a) Freedom of conscience and religion- What freedom of religion means and the kinds of constraints that the respect of freedom of religion

should impose on legislative actionR v Big M Drug Mart – Look at Purpose and Effects of legislation to see if Charter breach

- Facts : The store was open on Sunday when an act was in place which prohibited this.- Question : Does the Lords Day Act infringe upon the freedom of conscience and religion guaranteed in

Section 2(a) of the Charter? Can it be saved under Section 1? - Standing : Who has an appropriate interest sufficient to bringing a claim? Does a corporation have

standing to complain about the constitutionality of the Chartero Here it is the nature of the law and not the status of the accused that is relevant. Meaning that it is

okay that the accused cannot have a religious belief because you should not be prosecuted under unconstitutional statutes, even though they themselves don’t have religious beliefs

- Jurisdiction : What court has jurisdiction to make Charter determinations? Section 24, anyone may apply to a court of competent jurisdiction to obtain a remedy. So question of what court is competent.

o There is an argument that a provincial court is not competent to deal with this.o Any tribunal, as long as it has authority to determine question of laws and not fact, can decide on

constitutionality. Section 52 is used as the foundation for this, which states that the constitution of Canada is the supreme law of Canada. If you are a tribunal charged with the decision of law, can consider the constitutionality of the law

- Here the court says that they will look to the US Bill of Rights and Canadian Bill of Rights decisions.o They do pay attention/obligated to follow the US authorities because the specifics are different o The US discussion is built around a distinction between two clauses (1) Congress should make

no law impairing the free exercise of religion, this is closest to the Canadian language. (2) The establishment clause which says that Congress should make no law for the establishment of a religion, each state used to have a particular religion and they benefited from special privileges in the state. This clause does not exist in the Canadian constitution. We have special privileges

o They have taken the view that if the purpose is not to infringe, then it should be okay. For them, the purpose takes precedent.

- Religion is protected under Canadian Bill of Rights, but the decisions made here have been criticizedo They are timid, not strong in the protection of rights. The deficiencies in this is the reason why a

stronger form of protection was requiredo They distinguished it on the basis that it was not constitutionally entrenched and was an ordinary

piece of legislation and only had an impact because of the manner and form requirement. o It was also distinguished on the basis that it was merely declaratory. It stated that it should

protect existing rights, did not apply to new rights.- Decision : Look to two factors to determine if the Charter has been breached

o (1) Purpose: Look to see whether the legislation in its purpose constitutes a breach. Even if this is okay must go on to

o (2) Effect: even if purpose is okay, this may constitute a breach

Intended and actual effects have often been looked to for guidance in assessing the legislation’s object and this its validity

- It would be difficult to conceive of legislation with an unconstitutional purpose whose effects would not also be unconstitutional.

o The effects will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with a valid purpose.

o It is much easier to prove purpose then effects. So then why should we put the P to having to prove the effects, if the purpose is to infringe the right

- Purpose : Cannot shifto Initially the purpose was to protect and require that Sunday not be used for activities that were

inconsistent with a Sabbath day. o But then over time it came to be viewed as a universal day of rest. So they argued that court

should follow the American authorities, in that purpose has shifted. No longer about religion but the day of rest.

o Court doesn’t agree with this, need to look at intention and motives that were at the present at the time it was adopted. Only way to have certainty is to look at the original purposes of the Parliament at the time. Shifting purpose creates uncertainty.

o Coercion of religious observance cannot enforce the doctrine of a particular faith. Can be direct and indirect.

o Treating different religious better or worse, equality of treatment. May be symbolically saying that the state is a “Christian” state.

o Question becomes whether the state has to abstain from any religious recognition. Webber says that the answer is no because equality of treatment is not complete abstention. The court does not go that far, they can just recognize different religions. Therefore the lack of having an establishment clause, is not necessary

- They do not go to the effects, because purpose was to require that people conduct themselves on Sunday in a way that was respectful of the Christian Sabbath. Compelled religious observance and therefore was a breach of the freedom of religion

- Take home point is the two step approach: purpose and effect. The rights should be interpreted in an expansive fashion, generous rather than legalistic interpretation should be a large and liberal interpretation.

- Section 1 analysiso If the purpose is contrary to the right, it cannot be justified. Here the purpose is diametrically

opposed to the right.o Even if we were to allow them to argue the secular purpose, they find that they run into an ultra

vires issue, if the purpose is to have a day of rest, they cannot do this due to division of powers- Dissent : Wilson said that the Charter should be completely an effect based approach, purpose should

not be relevant. She takes the position that it should be effects only because that is more likely to protect the rights as opposed to looking at both. She said you should skip the purpose test, because what really matters is whether someone has their rights impaired. Not whether it was intentional or not.

Edwards Books – The effects infringe, but it is justified under section 1- Question : Is the retail business holidays act within the legislative powers of the Province of Ontario

under Section 92. Does the act infringe on any part of the Charter? Can it be justified under Section 1? - Background : If a primary purpose of legislative enactment of a pause day is to benefit workers in these

respects, the legislation is properly characterized as relation to property and civil rights. - Decision : It is upheld under the division of powers ground because it has a secular purpose.- Purpose:

o It included non-religious holidays and had exemptions for small businesses and tourismo The intent was to have a universal day of rest, to permit as many people as possible to have a

common pause day

o There are sufficient precedents in the world for the legislature to select Sunday as a uniform day of pause for secular rather than religious purposes.

o This is a genuine secular purpose, no attempt to disguise a religious purpose, happens to coincide with Sunday, but accepts that there was already a day which served this purpose in society, and so it made sense for secular reasons that this day continue. This is all “bona fide”, no disguising of religious observance, they are just going along with how things have gone over time.

- The purpose is held to be okay, not contrary to freedom of religion- Effects:- (1) It is argued that the Retail Business Act makes it more expensive for retailers and consumers who

observe a weekly day of rest other than Sunday to practise their religious tenants- (2) The Act has the direct effect of compelling retailers to conform to majoritarian and religious dogma

by closing their stores on Sundays. - Majority (Dickson) : Legislation with secular inspiration does not abridge the freedom from conformity

to religious dogma merely because statutory provisions coincide with the tenants of religion. For non-observers the monetary effects are not substantially reduced as they still have to close one day a week. But it does infringe for Saturday observers because they are closed one day more than Sunday observers.

o Saved under section 1 – concern to have family time pressing and substantial o Rational Connection - It provides exemptions, but they are for small companies and not larger

companies because no protection for employees. As they get bigger, the distinctively religious beliefs diminish and so the number of employees who lose their day of rest becomes more likely when it gets larger. Protecting vulnerable employees

o Minimal Impairment – defers to legislature saying impossible to find exact balance o General Proportionality – again defers to the legislature.

- Webber: Even if there is no economic cost imposed on people, and even if Sunday is chosen for reasons that are not to do with the desire to enforce religious practice, nevertheless you still cannot escape the fact that that day has particular significance because of its religious connotations

o If you treat freedom of religion as not just coercion but also including an equal citizenship, etc. it does raise a freedom of religion issue.

o Webber says that it is right to get into the section 1 analysis, but should be on the basis of above- Argument of people who have a holy day other than Sunday is not dealt with because of the lack of

evidence, Courts don’t have the capacity o One temptation when dealing with Charter rights is to deal them with in the abstract. If one

religion has their day recognized, shouldn’t every other religion have their religion recognized? But not every religion is abstained from working on their day of rest.

o When people don’t have the Sabbath in the same sense as Christians and Jews, there may not be parallels from one religion to another. So you may want the guarantee to be based on actual beliefs.

o It is not bad argument to say that we don’t know or have no foundation for thinking that Muslims should have a day free from commercial activity when their religion does not warrant this.

- Wilson (Dissent): There is no justification in for difference in sizeo She is focused on the position of the religious believers, the employers. Why should a believer

who has a small store be exempt and the ones with the big store not be exempt? She sees not rationale for this

o Webber says that she loses sight the fact that the state is acting as a stand-in for the interests of a bunch of employees. Doesn’t take into account that people may be not be able to ask for a religious day off, because of the large corporation.

- Beetz (Dissent ): the cost that the people incur does not depend on the Sunday closing legislation, if another day is picked they still bear the cost of closing on their Sabbath, so then what is the objection?

- Note: What you see emerging in these cases is a distinction between situations that have a clear opposition of interest. Judges are used to dealing with situations that are much more complicated, and

attempt to balance more interests that are more complex. Cannot apply Oakes with the same type of definition as in criminal.

- Cannot mean the absolute impairment for the second branch, have to allow a significant measure of scope for those judgements to be made

- The court realized that Oakes was created in a criminal context and so it is easier to tack onto one right.

- It is harder for the courts to say that there is one and only one way to deal with days of rest. So you see them here and freedom of expression, withdrawing from that kind of tight requirement of justification.

- When dealing with complex social issues, the court in its section 1, justifies what the legislature has already done. The choices the legislature makes will be considered as being reasonable and satisfactory

9. Section 2(b) - Freedom of Expression

2. Everyone has the following fundamental Freedoms(b) Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communications.

(a) Breach of the RightR. v. Keegstra

- The three rationales/purposes underlying the freedom of expression o (1) Political: Only expression relating to the political process, valuable because it is essential to

democratic self-government.o (2) Promotes a market place of ideas in which competing views vie for supremacy to the end of

attaining truth. Is valuable in the pursuit of truth, to achieve truth, you have to have a capacity for ideas to contend.

o (3) Deals with the power of expression through artistic expression. This is valuable and needs protection

- We have a very broad definition, any expression except violent expressiono This is defined very narrowly, not language that produces violence o It is when the expression is itself an act of violence. You want to send a message, people of the

wrong sexual orientation don’t belong, so you beat them up.o Only expression that itself constitutes a violent act. The speaking of the words itself is not

violence, hate speech.

Test for determining freedom of expression- This is for the stage of breach (framework from Big M)- (1) Purpose

o Can infringe the guarantee in its purpose if the purpose is to restrict content, or restrict the form of communication or access to the form

o Are you trying to restrict the form of this and not the physical consequences? So broad, easy to find

- (2) Effecto At this level the court imports the rationales for freedom of expression. o The P has to prove some impairment of political expression, the search for truth or artistic

expression o In the commercial advertising cases, it is the political expression that we are concerned with.

- What about the negative of the right, does it include the freedom not to speak?o It may be that what one values is the positive and not the negativeo Eg. Rodriquez, section 7 right to life does not include right to take your life away.

The Charter protects particular types of freedom, and what it is freedom of really matters. So it doesn’t always include the negative

o Eg. Freedom of association doesn’t extend to your right not to associate. Just because you have a freedom to associate, doesn’t mean that you don’t have to associate

o So a freedom to express yourself doesn’t mean that you don’t have a freedom not to express yourself.

In RJR they divide on the issue of printing on it the warning signsBaier v Alberta – Test for a positive right protection

- Facts : There was a rule that teachers were not allowed to stand for school boards in the jurisdiction where they taught. However this was extended to include all school boards in the province.

- The charter is seen as being a restriction on state conduct. It is not about having access to regimes that are meant to protect the underlying value of the right.

- It is about stopping the state from interfering with the conduct, which prohibits proper expression- Therefore only requires Parliament to not interfere with these fundamental rights. However an

exemption to this is that sometimes government action is needed to safeguard the exercise of a fundamental freedom.

- In cases where a government defending a Charter challenge alleges or the Charter claimant concedes, that a positive rights claim is being made under 2(b), a court must proceed in the following way

o (1) It must consider whether the activity for which the claimant seeks 2(b) protection is a form of expression

o (2) The court must determine if the claimant claims a positive entitlement to a government action, or simply the right to be free from government action

o (3) If it is a positive right, then the three Dunmore factors must be considered. (a) that the claimant ground their claim in a fundamental freedom of expression rather

than in access to a particular statutory regime (b) that the claimant has demonstrated that the exclusion from a statutory regime has the

effect of a substantial interference with 2(b) or has the purpose of infringing 2(b) (c) The government is responsible for the inability to exercise the fundamental freedom.

o In certain very limited circumstances, a freedom that is ordinarily considered to be a negative freedom may be included if it satisfies the test in Dunmore. In Dunmore they were given access to the negative freedom in question but not the whole bargaining regime.

- In this case they wanted the government to legislate to enable them to be on the school board and therefore express an activity, it was a positive right. They are claiming a unique role and not a fundamental freedom; therefore it fails the first Dunmore criterion. The expression deals with the ability to be a trustee and not expression on matters related to education. Can express in other ways.

(b) Justification of the breach: Section1Irwin Toy – Two Approaches to Oakes

- Facts : Consumer protection act said that you could not advertise to children under 13. They looked at the nature and intended purpose of the goods advertised, the manner of presenting and the act and the time and place it was shown

- Issue : Does it infringe freedom of expression?- Decision: - (1) Must first ask whether the activity is within the protected sphere of free expression.

o Activity is expression if it attempts to convey meaning. o The content of expression can be conveyed through an infinite variety of forms. o 3 principles from Keegstra

(1) Participation in social and political decision making: making is to be fostered and encouraged

(2) Seeking and attaining truth is an inherently good activity

(3) The diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.

- (2) If the impugned legislation infringes that protection either by purpose or by effecto Purpose: does the mischief consist in the meaning of the activity or the purported influence that

meaning has on the behaviour of others or does it consist rather only in the direct result of the activity

o Even if the purpose was not to control or restrict attempts to convey meaning, the court must still decide whether the effect of the government action was to restrict the Ps free expression

- Here the Ps activity is not excluded from the sphere of conduct protected by freedom of expression. The Act was created to prohibit particular content of expression in the name of protecting children

- Question : Whether the evidence submitted by the government establishes that children under 13 are unable to make choices and distinctions respecting products advertised and whether this in turn justifies the restriction on advertising put into place.

o Deals with Social science research and the allocation of scare resourceso So complicated issues of social policy will be treated very differently from the way in which

Oakes was first articulated in the criminal context- Two approaches to Oakes - (1) The Oakes test will apply rigidly when dealing with simple opposition between the state and

individual but - (2) When dealing with complex areas, there will be a great deal of deference given to the legislature.

Also the extent of the inquiry would deal with the type of freedom, like if it is core expression, the justification of limits will have to be done more carefully.

o See a development of the test into a strict application in criminal context and the lose definition in more social and political issues.

- It has to be applied different in complex issue of social policy, or social dynamics, the evidence is challenging and dealing with various groups

- The courts are quite tolerant with the decision of the legislatures in the terms of advertising and what should be permitted.

- So wonder whether some form of expression, be subject to no real constitutional protection. So although in theory the net is cast widely the expression which falls within it is actually much less.

- They then go on to apply it and find that it is saved under section 1. - McIntyre (Dissent) : Agrees on the infringement but not that it is justified. No evidence to show that

children are harmed or at risk. A total prohibition of advertising aimed at children below an arbitrary fixed age makes no attempt at achievement of proportionality.

RJR MacDonald v Canada - Scope of Oakes and application of freedom of expression - Issue: consider the validity of the Federal Tobacco Products Control Act, which banned advertising of

tobacco products and required health warnings - 2 reasons to be cautious of the extent to which you can no longer rely on the line of reasoning we saw in

Irwin and Edwardo (1) Although they still site the same cases and use the same criteria, the court does not give the

same kind of deference to the legislatures that was previously given. o (2) More recent cases seem to suggest that more judges have moved back to deference in cases

of complex social policy- LaForest (Dissent)

o Begins his reasons by questioning the Oakes test itself, says that Oakes is not “test” but rather it is guidelines intended to serve as a framework for making this determination. Section 1 in and of itself provides a test. Doesn’t want the strict application

o Also emphasizes the distinction between the core and periphery of freedom of expression. He says the core here is not freedom of expression but rather it is advertising. By prohibiting the ad and promotion of tobacco products, as opposed to manufacture and sale, Parliament has sought to achieve a compromise among the competing interests of smokers and non-smokers with an eye to protecting vulnerable groups of society. He uses the fact that it’s a harmful product to colour his whole approach to section.

o Argument against him by McLauchlin: These are constitutional rights, it covers all attempts to convey meaning, yet you are providing no protection to these forms of expression

- McLauchlin and Iaccobucci (Majority)o Should not take an over technical approach to Section 1. o Context is essential in determining legislative objective and proportionality but it cannot be

carried to the extreme of treating the challenged law as a unique socio-economic phenomenon, of which Parliament is deemed to be the best judge.

o To carry judicial deference to the point of accepting Parliament’s view simply on the basis that the problem is serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and our nation is founded

o When looking at the nature of the expression, you see that there is value of commercial expression. All rights need to be interpreted equally

The majority is saying instead of highly contextualized definition of expression, lets work it out through section 1. These are constitutionally protected rights and so they must be recognized. So a retreat to abstract argument, since all are forms of expression, they should all be protected.

Fundamental rights are about protecting things that are so important that they can’t be trusted for the people’s representatives to make decisions about.

- Section 1 - What kinds of considerations play into the decisions of the Majority

o Lack of evidence, government did not show all of the evidence of the studies. It was held backo Whether this was just a profit making activity, that alone is not sufficient.

Webber: Fundamental debate is the extent to which the Charter should be seen to be guaranteeing economic liberalism

o Other alternativeso (1) Lifestyle advertising v Brand identification: this distinction is important, lifestyle ads will

increase the consumption but brand identification is just about the allocation of the existing market between different brands.

Criticism is that the distinction has to do more with the purposes of the advertising then the affects, in practice is there really such distinctions. Are the effects really so discrete that only one will increase the consumption only when lifestyle advertising

o (2) Partial Ban There are points when they seem to say that a partial ban is better than a total ban When it is unclear if a partial is better than a full, the Charter requires the legislature

enact the partial denial WHY? Isn’t this just as abstract and lacking evidence as a full ban?

The court draws some very amateur rules of thumb which appear to be bizarre. Why should the common sense judgement of the court be any better than the common sense judgement of the legislature?

- Webber: we chose compromise over anything else, the place where they are drawing the line appears to be very arbitrary. They should not be saying that in our view this is where the line should be drawn

o Agree that lines should be drawn on common sense inferences, don’t want to leave a situation where it is open season on cigarette advertising because it is not that fundamental a right. If they

do believe that, they should put forth evidence as to why they are doing something, or they should allow complete openness in advertising.

- The scope of Oakes and application of freedom of expression is put to question. Court seems to oppose the past cases, but they don’t shot them down, so may allow the pendulum to swing back. So the courts have swung back to a more deferential approach.

R v Guignard – commercial advertising can be important- Facts : He puts up a sign which states that an insurance company provided him with poor service. He was

ordered to take it down because a by-law prohibited erection of advertising signs outside industrial area. - Question the notion that commercial advertising is not a valuable form of expression. Commercial

advertising should have constitutional protection - The courts role in rights cases is negative, about striking down governmental action but we depend on

government action for many positive things in society- Decision: No sound basis on which commercial expression can be excluded from the protection of 2(b).

It is an infringement because the only way someone can express themselves is by purchasing a lease in an industrial area or ask the owner of a business in an industrial zone to post a sign on their premises. Had an effect which was unintended yet it infringed freedom of expression

o To justify the intrusion on free expression, a government must demonstrate through evidence or common sense and inferential reasoning that the impugned law meets Oakes

o Here they argue the objective is to prevent visual pollution and driver distraction but if this were the case, no signs should be allowed. Here it is only signs which expressly indicate the trade name of a commercial enterprise in residential areas, so fails Oakes.

- They say that we will declare it invalid, but suspend the operation of that regulation which allows the municipality to redraft.

(c) The Charter and Obscenity

R v Butler – Expression that is not at the core of the freedom- Facts : Case deals with a store where he sells obscene movies and magazines. - Issue : The definition of obscenity in the criminal law and the interpretation of the criminal law and the

Charter.- The interpretation of the Criminal Code is done with an eye to the application of the Charter, it is an

attempt to make it justified under section 1- Is this a form of expression?

o The form here is the medium through which the meaning sought to be conveyed is expressed. There is nothing inherently violent in the vehicle of expression

o If one deliberately chooses to capture that image by the medium of film the work necessarily has some meaning for its author and thereby constitutes expression.

o Expression does not have to have an intellectual appeal, the choice of recording and showing that image makes it expressive conduct.

- To determine obscenity (1) must be an objective standard and (2) the community standard of tolerance test must be used

o This is concerned not with what Canadian’s would not tolerate being exposed to themselves, but what they would not tolerate other Canadian’s being exposed to.

o Here it is important that one of the classic complaints of the provision of obscenity is its vagueness, that it has to be undue sex. They tighten the scope of obscenity

- To determine vagueness 2 issues must be addressedo (1) Is the law so vague that it does not qualify as a limit prescribed by lawo (2) Is it so imprecise that it is not a reasonable limit. Provides an intelligible standard.

The standard of precision is not great, only an intelligible standard.

- If they feel they can meet an intelligible standard, it will be satisfied. If you had accepted that a limit is prescribed by law, that aspiration is gone by this point. They will simply determine if it can fashion a standard, so intelligible. Prescribed by law becomes a minimal standard

- Oakes : - (1) Pressing and Substantial Objective: they overwhelmingly mention harm, distance themselves from

morality. Court has a discomfort in seeing the law as a vehicle for the enforcement of morality. o They don’t completely foreclose morality. Idea of human dignity might itself be an aim that the

legislature is justified in attempting to prohibit. o Historically the dominant purpose was to advance a particular conception of morality. But here

the overriding purpose is not moral disapprobation, but avoidance of harm. To identify as harm, one must not resort to the shifting purpose doctrine, harm and morality are linked, harm was always there, they are just putting more emphasis on it now

With the shift to harm from morality they seem to limit what counts as obscenity to areas that are most conducive to harm and uphold it on the basis that this is a justifiable attempt to obtain a pressing and substantial purpose.

This clashes with legislative intent, and the shifting purpose. They reinterpret the moral test and create a new test for obscenity which targets it as harm and upholds it on the basis that it furthers the prevention of harm.

The argument is raised that it cannot be claimed in this way and it was contrary to relying on a shifting purpose in Big M Mart.

They deal with this by saying that since this provision was amended the more contemporary purpose is used but this is not completely sufficient,

o The object of avoiding harm associated with the dissemination of pornography in this case is sufficiently pressing and substantive to warrant some restriction on full exercise of the right to freedom of expression.

o Webber: By saying harm is the only thing, they seem to oversimplify what is going on. It would be better if the courts recognized moral issue in a case like this and addressed the moral pluralism. Should make these decisions more expressly, instead of hiding behind the language of harm which has a more moral expression then is suggested.

- (2) Rational Connection: can have a plausible chain of causation that would have a reasonable possibility of harm, don’t need to show that it actually exists.

o They are very lose, don’t need social science evidence, reasonable inference is sufficient- (3) Minimal Impairment: No longer necessary that it be the least intrusive to achieve the purpose. As

long as the line drawn by the legislature is reasonable- (4) Balance: the restriction of freedom of expression does not outweigh the importance of legislative

objective- One point which they really emphasize is the core and periphery of the freedom of expression.

o Even though this counts as expression, it is not really important, as it doesn’t go to any of the three purposes. Therefore the test that can be applied for limitation can be relaxed. They don’t need to be applied with the same rigour and same level of proof because we are dealing with a type of expression that is far from the core.

- It lays the baseline for the courts treatment of pornography as expression. They find that if it is of the harmful kinds, a high standard is not required for the purpose.

Little Sisters- Included to show the inadequacy of remedies around Charter violations. Legislation was upheld but

it was the border guards conduct which was at fault. It legislation had been amended, the problem would have been solved. In courts defence, striking down the law is costly.

- Obscene material could be taken by customs and not returned. The Ps challenged the legislation that allowed the customs official to seize such materials saying that it was infringing freedom of expression.

- They find that obscenity has to be interpreted the same way as Butler and therefore it could be justified under section one.

- Court found that the officers had used their authority to seize materials that did not meet the Butler standard of pornography. The law itself was upheld but the actions of the officers were found to be a breach of the rights.

- The Bookstore was not happy with this judgement, they brought another action that the seizures were occurring in a manner which did not meet the Butler criteria. But this is not an effective remedy because it is expensive, and need to respond to it every time is happens.

o If you have to bring a case every time material is seized, not effective. R v Sharpe

- Question: Does Canada’s law banning the possession of child pornography unjustifiably intrude on the constitutional right of Canadians to freedom of expression

- Core : The same kinds of standards are articulated as Butler. The court interprets the child pornography with one eye fixed on the constitutional standards, also the working of section 1 that sites the same standards of appreciation that we saw in Butler. Even though the same language is used, it gets applied in significantly different spirit. The court seems to be talking about the need in a context like this where it is difficult to establish harm especially since the expression is different from core

o The purpose was to prevent harm but they didn’t want overbroad legislation so set it principally on clear forms of child pornography

o Parliament did not seek to catch all material, only material that poses reasoned risk of harm to children and even then only where the countervailing right of free expression or the public good does not outweigh that risk of harm.

- Allows substantial latitude in situations where it is very difficult to come by, but there can be a reasonable inference of harm. They are engaged in a much more detailed second guessing by bringing up different situations where the legislation can apply

o They work through each and decide if the likelihood of harm is high, and interpret the provisions in a way which reads in two exceptions which seem to be the clear application of the provision itself

o They are exercising a much more detailed examination of what the legislature has done- What motivates the exceptions?

o There is the idea that freedom of thought may be infringedo Also there is less emphasis on core and periphery, in RJR the majority really took seriously that

all expression should have protection. Have a similar value of any form and limits to be constitutionally justified.

o There is a real emphasis on the weighing of harm and privacy, and freedom of thought which is a private realm which should be exemption from state intrusion. It comes close to trying to limit self-created and private forms of expression

o These don’t really exist in Butler. - There is a difference of whether these exemptions should be read into these situations- The three dissenting thought that these were harmful,

o Dealing with an area of uncertainty, no way to prove what forms of expression actually caused the harm, so the question is who makes the decision

o They say in contexts like this, we should not be second guessing the legislature especially when we are dealing with something that is far from the core.

o They emphasize that this is conduct which occurs in the private realm, so it is not neutral, the distinction between privacy interest and harm tends to idealize a private realm where exactly this type of harm occurs

Remedy- The normal remedy is to strike the whole legislation, however here there are only two small areas, which

are not even at issue in this case, that can invalidate the legislation. But if you find that it is invalid, then there will be no legislation on pornography and you must start again.

- Other argument is that conduct at issue should be seen and then dealt with, this could be because they don’t want criminal penalties which prevent conduct which they think is acceptable.

- Appropriate remedy is one which tries to correct the law, they see all three as being equal. o Severing, reading down, or reading ino They used reading in, insert additional wording to create an exemption to something that

already exists, make sense in cases where the legislation is valid. The more perspectives there are, the more they seem to be intruding on the legislature’s prerogative.

- Until parliament acts, it is open season for pornography to be done in Canada, is it jumping the gun, they are reading in restrictions, does this have them intrude too much into the legislative process, when it is more appropriate for the legislature to do this.

10. Section 15 - Equality Rights

Constitutional provisions: Sections 15, 28, and 35(4) of the Constitution Act 1982

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.15(2): Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantage because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability

Why is the text so convoluted?- Section 15 uses very convoluted language because it has been a suggested that the Canadian Bill of

Rights used wording for equality that could not be challenged, “equality before the law”- Therefore the use of “equal benefit of the law” is to try and prevent the strict interpretation of the Bill of

Rights- The terminology of these provisions is an attempted to say that the framers wanted this to be a mandate

for a strong protection of equality provisions.What is the role of the listed grounds?

- The listed grounds are not exhaustive but the listing does have a big impact on the rights. What is the role of section 28?

- Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

- Not the same scope as section 15. It is the exercise of equality rights in gender. It is the super guarantee of equality rights.

What is the role of section 35(4)?- It is gender equality but in the context of aboriginal treaty rights.

How does one give meaning to these general terms?- “Guarantee of equality without discrimination”- What does this mean? Does it mean that legislation can never distinguish between people?- But all legislation creates distinctions, what constitutes these distinctions. What is okay?- See the courts in Andrews, KAPP try to make decisions about what kinds of distinctions are okay and

which ones prima facie breach equality and therefore require a section 1 justificationKey question: Every piece of legislation works by making distinctions. Which distinctions are legitimate? Which are not?Possible definitions of section 15:

1. Any distinction violates section 15.2. Distinctions between people “similarly situated” violate section 15. “Like persons should be treated

alike.”3. Irrational or unreasonable distinctions violate section 15.4. Distinctions on “the enumerated or analogous grounds” violate section 15.

5. Distinctions that are purposefully discriminatory – which display “animus” – violate section 15.- Which has been accepted?- Can you only challenge legislation when the act makes a distinction?

Substantive v Formal Equality (Patricia Hughes)- Have to have substantial and not formal equality (Andrews)- Substantial equality: Recognizing differences instead of homogeneity. Treating people the same does

not necessarily mean equality, sometimes you have to treat them differently in order to treat them equally. But this is in negative terms, so what is required in positive terms?

o The most important aspect of this concept is the taking into consideration the differences among people which might require different treatment in order to achieve equality.

o What is the baseline for comparison that one should be reaching for? The example of maternity leave was one of the most criticized Canadian Bill of Rights issues. The fact that women were the only ones affected is a matter of biology and not the law.

- The court has embraced substantive equality and the notion of substantive equality is compelling in getting rid of a simplistic notion of treating everyone the same. But it is much more difficult to specify in position terms.

Andrews v Law Society of BC – Test for Section 15- Facts : British Law graduate and he met all the requirements for BC Bar except Canadian Citizenship

requirement. Argued that the requirement breached S. 15- Decision : Accepts the view that equality is an inherently comparative concept, it is protecting the

equivalence of treatment. Things that are not protected under other rights, can be protected through this. Like will not find the right of marriage in any other sections, but you can say that someone else has access to it and your exclusion to it is right infringing

- Discrimination and equality is an effect based matter; it does not matter whether or not the legislation was motivated by discriminatory intent.

o Must show that he/she is not receiving equal treatment before and under the law, or that the law has a differential impact on him/her in the protection or benefit accorded by law but also must show that the legislative impact of law is discriminatory.

- Substantive Equality : Equality is overwhelmingly about remedying entrenched disadvantage suffered by groups, it is really meant to remedy the discrimination felt by discrete and insular minorities.

- It is an activist Charter, putting in place equality for groups that have historically not obtained the benefits of society

- Section 15(1) and 15(2) work together to protect these groups, the first section prevents further disadvantage and the second section is about promoting government to redress past disadvantage.

- Test that should be applied to determine if there has been a violation of section 15o (1) Distinction in treatment: does the law (a) draw a formal distinction between the claimant

and others on the basis of one or more personal characteristics or (b) fail to take into account the claimants already disadvantaged position within Canadian society resulting in substantially differential treatment between the claimant and others on the basis of one or more personal characteristics. Either you are treated worse, or you don’t have an advantage

o (2) Enumerated or Analogous grounds : Was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds

What makes it an analogous ground: Personal and Immutable Characteristicso (3) Distinction has to be on the basis of “discrimination”: Does the differential treatment

discriminate in a substantive sense, bringing into play the purpose of S. 15(1) in remedying such ills as prejudice, stereotyping and historical disadvantage. Has to have some sort of disadvantage imposed or benefit withheld.

In Law this is limited to only when it discriminates on the basis of human dignity Stereotyping: treatment that does not relate to individual needs capacities and merits

- Webber: What offends us about personal characteristics, like skin colour of skin, being used is that it has nothing to do with the relevance of the purpose. But this is not used in the test, although you see the language of relevance sneaking in, it is not expressly included.

o If they include relevance, the burden of proof will be on the P to establish that the characteristic was irrelevant and there would be nothing left for section 1 to do. This makes it easy for the P to prove a breach and it forces the government to establish the relevance on the basis of section 1.

o The effect of this is that you get breaches of equality that don’t strike people as being actual breaches. Have breaches that don’t trigger people’s traditional concepts of equality.

Law v Canada – Adds Human Dignity to the Discrimination branch of Andrews Test- Facts : appeal is based on the age distinctions with regard to entitlement to survivor’s pension. She was

refused survivors pension because she was under 35 at the time of her husband’s death, she was not disabled and she did not have dependent children.

- Question : Whether the provisions discriminate against persons under the age of 45 on the basis of age and if so, whether the infringement is justified under Section 1.

- Human Dignity is concerned with the physical and psychological integrity and empowerment. It is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities or merits.

- The determination of human dignity is both subjective and objectiveo Subjective in so far as the right to equal treatment is an individual right asserted by a specific

claimant with the particular traits and circumstanceso Objective in the sense that it is possible to determine whether the individual claimant’s equality

rights have been infringed only by considering the larger context of the legislation in question and societies past and present treatment of the claimant and of other persons or groups with similar characteristics or circumstances.

- 4 factors to examine if claimant losses human dignityo (1) Pre-existing disadvantage: Although important not necessary because not determinative, in

some situations it is inappropriate to speak of membership in certain groupo (2) Relationship between grounds and the claimants characteristics or circumstances: it will

be easier to establish discrimination to the extent that impugned legislation fails to take into account a claimants actual situation, and more difficult to establish discrimination to the extent that legislation properly accommodates the claimants needs, capacities, and circumstances.

o (3) Ameliorative purpose or effects: only be relevant where the person or group that is excluded from the scope of ameliorative legislation or other state action is more advantaged in a relative sense

o (4) Nature of the Interest affected - Court can use common sense, don’t need data. Don’t have to establish that the intent was to

discriminate, as long as the purpose or effect infringes Section 15 that is sufficient. - It leaves the first two branches of Andrews alone but no longer every disadvantage that counts, only

ones of those that impugns someone’s human dignity: involves stereotyping - It tries to unpack a bundle of considerations to determine if human dignity has been infringed. - Decision: Found that young people are inherently better able to initiate and maintain long-term

employment and as such the impugned provisions cannot be said to impose a discriminatory disadvantage on them. No violation of human dignity, the provisions do not stigmatize young persons, nor can they be said to perpetuate the view that surviving spouses under the age of 45 are less deserving of concern, respect or consideration than any other

o Stereotyping: generally young people can find a job and that is all that matters, the fact that the particular P can’t find a job is not relevant

o The court decides this case on a generalization. This makes stereotyping more complicated, not about treating people as individuals but according to the wrong kind or generalization

o What makes for a wrong kind of generalization?

o One that is inaccurate, if it doesn’t seem to have much connection or relevance. Court upholds a generalization that may not be true in Nancy Law’s case

o Some sociological validity to it, cannot be completely wrong. There must be a problem with the nature of the generalization that is made, linked to historical prejudice or doesn’t get the causation right.

Notes- The court in Andrew’s said that we have to leave some work for section 1, otherwise it will leave too

much work for the P. Need to have some sort of division of the roles so that the P is relived of the work. - But this creates a vast definition of discrimination in which things are considered a breach when

intuitively it is not a breach. But then this is problematic because the section 1 is framed to make it difficult to justify a breach. So if you have created such a large definition in the beginning, section 1 may be difficult. It seems to be a very heavy duty test applicable to something that just does not justify it

- This is what caused the court in Law to try and tailor its test so that it is a little more focused on what the equality provision should be about. One of the consequences is that this causes section 1 to have very limited application

- With respect to substantive equality the problem is that the essential idea underlying it is that people who are differently situated in society may be impacted differently by a law that looks like it is being applied in the same way.

o What counts as equal treatment in these types of circumstances? o There is an intrinsic challenge which deals with balancing of different interests. o Not limited to equal grounds, the list is open ended whereas with human rights codes that are

more specifico If courts don’t get it right in these tests, they have foreclosed the legislature from acting in

certain ways which may be perfectly okay. Whereas in human rights codes there can be changes made. In constitutional terms the considerations have a very large impact

o The courts try to find a way of translating these very general considerations into more precise considerations which they can operate effectively

- Wilson’s judgement in Andrews made it feel like the equality provision was all about the protection of discrete and insular minorities, but in Law they made it clear that this is not the only factor. It will only be one indication of human dignity

- The question now becomes what scope is left for section 1?o It begins to look like there is very little left for section 1. o Are there going to be some situations where the interest you are deprived of are so fundamental

that they should be considered a ground for discrimination? In some ways the nature of interest affected will outweigh the fact that the ground is not

analogous to the grounds that exist. - What you see with the Law test is the court moving towards the notion that analogous grounds do count,

but the distinction has to go to human dignity as well- Important to see that all of these factors are a work in progress, there may be ways for this jurisprudence

to evolve, like if a case does not appear to be an analogous ground but is still a breach of section 15

Canadian Foundation for Children, Youth and the Law v Canada – Lack of Section 1 analysis- Issue: the constitutionality of Parliament’s decision to carve out a sphere within which children’s parents

and teachers may use minor corrective force in some circumstances without facing criminal sanctions. o Argues that this section allows conduct towards children which is not allowed to adults, under

Section 15- Test is whether a reasonable person possessing the claimants attributes and in the claimants

circumstances would conclude that the law marginalizes the claimant or treats her as less worthy on the basis of irrelevant characteristics. So need to look at it from a vulnerable disempowered child.

- Where reasonable corrective force slips into harmful, degrading or abusive conduct, the criminal law remains ready to respond and section 15(1) does not require that the legislation must always correspond perfectly with social reality.

- The reason that the Canadian Foundation case is there is to show that section 1 has limited application. Example of how section 1 is displaced

- The majority weighs everything in the section 15 analysis including the possibility to intervening too strongly in the life of the family so that you criminalize what is normally family relations

- She finds that there is not a prima facie breach, there is a relationship between the grounds and treatment even though the legislation fails all other three parts of human dignity. Makes all the considerations in the first part

- Binnie(Dissent in part): He accepts the Law test but he says still some work for section 1, cannot role so many considerations in the section 15 analysis. Accelerating societal considerations into the section 15(1) analysis instead of establishing its reasonableness under Section 1 inappropriately denies children the protection of their right to equal treatment. Takes away dignity by hitting, children become “second-class citizens”

- This means that the burden of proof in section 15 remains on the P, Law is aware of this and it says that we are going to have to be tolerant of this and use things like judicial notice and reasonable inference to decide if human dignity is impaired

R v Kapp – If ameliorative purpose, don’t apply Andrews/Law test- Facts: Commercial fisher argues Section 15 was violated by a communal fishing license granting

members of three Aboriginal bands exclusive right to fish in the Fraser River for a period of 24 hours. Non-Aboriginal claims discrimination

- Section 15 : Equality provision is about responding to disadvantage and section 15(1) and 15(2) work together, one is about stopping discrimination and the other is about responding to historical problems due to it

- Decision : Where a program makes a distinction on one of the grounds enumerated but has as its object the amelioration of the conditions of a disadvantage group, and Section 15 is furthered, the claim must fail. If it promotes an Ameliorative Purpose, then it falls under 15(2), and so you no longer have to look at 15(1), therefore it is also removed from the Law/Andrew test.

o Ex. if you look at the age distinction in Law, can see that it was an ameliorative purpose, so could it have been answered much quicker under the section 15(2) analysis?

o Human dignity was too broad and abstract. Better language would be the perpetuation of disadvantage, prejudice or stereotyping

o Have a shift in the test so that the language of human dignity is shifted to the perpetuation the disadvantage and stereotyping

o Not really a material difference but the court decides that this language is bettero They say don’t get too wrapped up in the four issues mentioned in Law

- The amelioration does not have to be the only purpose, can be just one. There doesn’t have to be a close tie between the disadvantage and the amelioration, there has to be a rational connection which is read generally.

o The measure which is put in place does not need to be a tight response to what caused the disadvantage, it allows the government to take an approach they think is important

- A program does not violate Section 15 if the government can demonstrate thato (1) The program has have an ameliorative purpose

Need to consider not only the statements made by the drafters of the program but also whether the legislature chose means rationally related to the ameliorative purpose in that it seems at least possible that the program may indeed advance the stated goal of combatting disadvantage

Must be correlation between the program and the disadvantage suffered by the groupo (2) The program targets a group identified by the enumerated grounds

Adequacy of Section 15(2) in dealing with Aboriginal rights- McLauchlin: Doesn’t deal with section 25

o This is best characterized as an ameliorative program, commercial fishing rights for first nations. o This situation may not conform to a remedy that will one day be liquidated and not be required,

but first nations have been continually been fighting for continuing autonomy and doesn’t fit well with a simple action of affirmative action.

o They thought this was best understood as being ameliorative because it was a replacement for resources that had been stripped away from first nations and compensation for the fact that they had been excluded from the fisheries.

o Is this a good general framework for understanding aboriginal rights? Does it capture the total situation, especially if this fishing right is a way to prevent past disadvantage?

o Section 25 may only be about constitutional rights held by aboriginal people. Therefore since they see Van Der Peet as meaning that fishing is not entrenched, they cannot apply Section 25 and need to rely on Section 15 for rights that fall outside the constitutionally protected rights

- Bastarache : Bases his entire decision on section 25o Section 25 was created to shield against the intrusion of the Charter upon Native rights or

freedoms. The protection was meant to be very broad but the rights and freedoms are only those that pertain to aboriginal people. Legislation that distinguishes between Aboriginal and non-Aboriginal people in order to protect interests associated with Aboriginal culture, territory, sovereignty or the treaty process deserves to be shielded from Charter scrutiny

Takes a more broad view of section 25. Meant to insulate against more than just constitutional rights

o What is the effect of section 25? Does it bar against other provisions of the Charter or do you simply use it as an interpretative provision?

He uses the French version which is equally as official to the English version. Both are equal in authority; want to look at the whole enactment.

Buttresses this with the legislative history and the debates that surround the Charter and the rights of the aboriginal. These provisions were made to prevent the eroding of collective aboriginal rights

- Webber : collective rights make it seem like collective versus individual, like one should prevail over the other. It makes it seem as though there is opposition, it simplifies the situation. But this is not really the case, you cannot say that if you accept the aboriginal right then you are ignoring the individual right

o It is about people retaining at least a portion of what they once had, so not really one trumping over another

Halpern v AG Canada- It was the major case that decided the question of same sex marriage in Canada- Question : Whether the definition of marriage which excludes same-sex couples is an infringement on

Section 15(1).- In the marriage reference, the SCC refused to answer whether equality required the recognition of same

sex marriage rather, the court suspended their decision to allow the legislature to bring the law into consistency with the Charter

- In Halpern the effect of the decision was not suspended, rather the court declined to suspend their decision. Already had a series of issues that had been suspended and the House of Commons was touring the country seeking advice about the validity of same sex marriage.

- Decision : - Part 1 – Distinction in Treatment : (a) The common law definition of marriage creates a formal

distinction between opposite-sex and same-sex couples on the basis of their sexual orientation. (b) Differential Treatment: People defending common law definition argue that the distinctive character of marriage should affect your reading of all the factors. This is because marriage is an inherently heterosexual institution

o That is rejected, the court differs consideration of whether marriage is inherently heterosexual all the way down the different stages

o Canadian government chose to give legal recognition to marriage and a denial of licensing etc. is a distinction between same-sex and opposite-sex couples.

o In what way should they be considered comparable and only then can you look at whether human dignity is impaired by this. You really do have to examine this. Webber thinks that the court really does have an idea of what marriage is really about, they just don’t mention it. Only they can you say that the distinction etc. can result in stereotyping and discrimination

- Part 2 – Enumerated Ground: Sexual orientation was an analogous ground (Eagen), is a deeply personal characteristic that is unchangeable or very difficult to change. Also homosexuals are a very disadvantaged group.

- Part 3 – Discrimination : - (a) The historical disadvantages are a strong indication of finding of discrimination. Here there is

historical disadvantage- (b) Correspondence: legislation that accommodates the actual needs, capacities, and circumstances of

the claimants is less likely to demean dignity. The CL requirement that marriage be heterosexual does not accord with the needs, capacities and circumstances of same-sex couples.

- (c) Ameliorative Purpose: The question is whether the group has been excluded from the scope of ameliorative law is in a more advantaged position then the person coming within the scope of law. Here they are homosexuals are not in an advantaged position.

- (d) Nature of the Interest Affected: Is there complete non-recognition, does it restrict access to a fundamental social institution, or affect the basic membership to Canadian society. Here exclusion perpetuates that view that same-sex relationships are less worthy of recognition than opposite sex ones.

- Would have been a better judgement if they had said that marriage has these things, same-sex couples don’t have these advantages and then decide if it impairs human dignity.

- Section 1: o (1) A purpose that demeans the dignity of same-sex couples is contrary to the values of a free

and democratic society and cannot be considered to be pressing and substantial.o (2a) Must show that marriage as an exclusively heterosexual institution is rationally connected to

objects of marriage, which in our view is not self-evident. o (2b) No other way to maintain marriage as an institution and temper with a core feature may

have unexpected and unintended results. This is only speculative and does not impair the right minimally, same-sex couples have been completely excluded from a fundamental societal institution

o (2c) Since it has been established that there is no rational connection and minimal impairment, the deleterious effect outweigh the objectives.

- 3 Issues with the judgement - (1) They push the discussion of what marriage is about later and later in the analysis, when it really

should be predisposed at the beginning. Even determining that there is a distinction, has to start from the position that people who have access to marriage are in a comparable position and therefore can make a distinction.

o The reason why the comparison of same sex and heterosexual makes sense is because you already have some sense of what is generally going on in marriage. The tendency to push that later and later in the analysis seems to be artificial and questioning.

o Although the court tries to make a staged analysis in how section 15 should be approached, it is really tough to do in the case of equality. YOU NEED TO KNOW THE STRUCTURE AND ANALYSIS.

o The challenge may be that equality in its essence comes down to one complicated question, are people being denied important social right on the basis of an irrelevant foundation?

o Very tough to maintain the tests

o In the M v H, they articulate very early on in the judgement about the role of marriage, and Webber says that this is the better model

- (2) The courts from of reasoning doesn’t fit well with highly complex social institutions. The approach of the court to issues under Charter guarantees tend to be focused on the instrumental function of the provision being challenged

o This kind of highly instrumental reasoning is very difficult to fix with activities that don’t have a clear function. Like what is the instrumental function of marriage? To ask this question is very distorting

o The court has a hard time dealing with these amorphous things. There are some social institutions that are incapable of being challenged because they are so foundational. This was one of the arguments that was made in relation to marriage

o Webber doesn’t accept that because this is a social institution it is exempt from the Charter. When one approaches it, they have to realize that it is a highly complex institution so it should be dealt with by saying that marriage is complex and then see the range of meanings it has in society and not just the function of it. Do the aspirations of some same-sex couples fall within that range, so that we think that equality values are breached due to the lack of access to that institution

The functionalist approach is difficult, why was marriage adopted and what purpose does it fulfill. This doesn’t really capture the social meaning of marriage.

Should be asking what are the range of meanings that marriage has in society and do the aspirations of some same-sex couples sufficiently consistent with the range of meanings that are assigned to marriage and so that it looks like a matter of prejudice towards sexual orientation that is at the bottom of the exclusion.

If one asks this question, then can see that marriage has a range of social roles and social meanings.

Although one social role of marriage is procreation, this cannot be the only role. But today marriage is employed in relationship that is certain or almost not certain to result in procreation.

o The issue of social roles of marriage need to be addressed in a more material way. o The decision is criticized in telling an over simplified story, so the question the court ultimately

asks and answer is not the true question. The best judges try to have their reasoning be faithful to what is really at issue in the

cases. Here the structured approach tends to change the question of marriage. - (3) Remedy: They decide that the common law definition of marriage is incompatible with the Charter,

do we declare it invalid because it is incompatible with equality or do we make it right? o 3 Steps in determining a remedy

(1) Court is to define the extent of the law’s inconsistency with the Charter (2) Should select a remedy that best corrects the inconsistency (3) Court should assess whether the remedy ought to be temporarily suspended.

o They say this is an institution that means a great deal to people, so doesn’t make sense to simply strike it down, moreover to do so is to expose criticism against a disadvantaged group so better for us to make it right.

o Should the court have suspended its judgement like the other courts so that the legislatures could decide how to respond to the Charter breach built into definition of marriage?

The court declines to suspend their decision, real problems in the justification of this. They say that because it does not meet the criteria in the Schachter test and it’s a common

law rule, we are changing it. The test doesn’t really answer the question if the judgement should be suspended. Also the common law definition had been woven in to all kinds of statutory provisions; definition of marriage is incorporated into legislation expressly.

o Would make no sense to suspend it if there was other constitutionally valid alternative. But here there was an alternative which could have brought the law into the constitutional guarantee

Could create a parallel system, like Quebec but this may not expressly deal with the equality provision.

Parliament can no longer decide that marriage is a fraught institution and so instead of deciding on the scope of marriage, we leave it people to understand marriage in their own terms. We will restructure our polices which do don’t rely on the institution of marriage and will create civil institutions which anyone can enter into. We will privatize the institution of marriage so that they can understand it in their own way. This would treat everyone the same way. These possibilities get foreclosed by Halpern

Adverse Impacts AnalysisEldridge v BC

- This is a classic adverse effects case, where it looks like the law is applicable to everyone in the same manner, but the impact is very different.

- Facts : The Charter applies to the failure of hospitals and medical services commission to provide sign language interpreters, it remains to be decided whether that failure infringes the appellants equality rights under section 15(1).

o Deaf people claim “adverse effects” discrimination because the lack of funding for sign language interpreters renders them unable to benefit from this legislation to the same extent as hearing persons.

- How do you determine the adverse effects for which the government is responsible as opposed to those who are not

o Example of having to pay for parking at public parks, is everyone able to pay this?o The courts have not taken the approach that they need to ensure that the foundation of equality

generally is maintained. They decide that when there is some sort of nexus, in that the government is responsible for the treatment, then it needs to address it

- Decision : o They focus on the importance of the service in question, government actively decided to provide

a service, they have to do so in a non-discriminatory wayo Here they decided to provide medical services and therefore they have to ensure that it is done in

a way which all people can access it. o If one group is getting the benefit of universal health care, but another group has the benefit

impaired, there is an obligation on government to ensure that this does not happen - What creates the basis for comparability

o The BCCA says hearing people are not being treated differentlyo The SCC expands the definition and says that these people are not getting the same treatment as

other people. The court has tended to find that the differentiation is based on an analogous or enumerated ground, is this really about being hearing impaired or resources for medical treatment.

But here they decide that it is really about being hearing impaired, it doesn’t just happen to be this type of group

o The alleged adverse effects are suffered by enumerated group and the disadvantage is directly related to their inability to benefit equally from the service provided by the government.

o It is a cornerstone of human rights legislation that duty to take positive action to ensure that members of a disadvantaged group benefits equally from the service offered to the principle of accommodation

- Show the specific challenges that one begins to face if the distinction is not apparently on the face of statute

o How do you characterize the distinction? The courts have to come up with the most persuasive analysis

o Is the government sufficiently entangled in this in that they should have anticipated and allowed for creating the difference

- In this case the failure denies deaf people the equal benefit of the law, don’t have to prove that a violation of their own particular right has taken place, just that the rights of the groups to which they belong was infringed.

11. Section 7 – Life, Liberty and Security of the Person

(7) Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

- To what extent is life, liberty and security of the person directly affected, or does it really come down to not being deprived of these things in accordance with principles of fundamental justice

- The trigger is whether someone has been deprived in a manner that is not in accordance with PFJs. It is the nature of the infringement that is the focus of this provision

- The generality of the language is very important, the court attempts to say how do we understand the scope of these terms. Even the term fundamental justice is very general.

- The flashpoint for a lot of the discussion here is whether this provision is a rough reflection of the due process clause in the US constitution, which is quoted in one of the early cases.

o That provision had been used as the basis of constitutionalizing economic liberty in the early 20’s and 30’s. Striking down minimum wage legislation, etc. in that it limited their property and personal liberty. It was used to enforce a very highly economic view.

o But those cases had been fiercely criticized and a substantial body of opinion that Canada should not go that way, property is not included in the values and it is mostly personal freedoms, not property that should be covered.

o Also they substituted the language of the American constitution that these things are not to be limited by due process of law, and in order to avoid the language of due process, they substituted the language of PFJs, ironically they may have opened the door to more substantive review rather than less.

Reference re SS 193 and 195.1(1)(c) of the CC – Section 7 concerned with admin of justice- Facts : These sections prohibit keeping a common bawdy house and soliciting for the purpose of

prostitution - Issue : Appellants argue that an expansive interpretation of section 7 should be given so that carrying on

a lawful occupation is protected by right to liberty - Decision (Lamer only) : Rejects the older line of authority, of Wilson where the court decided that liberty

includes the liberty of a professional to exercise their profession but not occupation. This did not include the right to work for ordinary people, like if you’re a carpenter, cook, etc. your occupation has nothing to do with human dignity unlike a doctor or lawyer.

o The concept of LLSP would appear to relate to one’s physical or mental integrity and ones control over those, rather than some right to work where one wishes.

- Also adopts Mills conception that liberty is only imposed on conduct if it causes harm to other people, but a less broad version.

- He says section 7 is within a section of the Charter that deals with legal rights, but really in the criminal and adjudicative process generally. He reads it in the context of the Charter, intrinsically linked to section 8 and following. So section 7 should be interpreted in relation to the section in which it is in.

o Leads him to think about section 7 as being concerned with the administration of justice. Especially concerned with questions of process and means, and not end Not necessarily criminal context, but the administration of justice

o Section 7 is the general provision and the ones after are an extension of the principle. Should be mostly in the adjudicative process. Doesn’t limit it to criminal context, but says it is really about those interests as they arise in the administration of justice in society.

o Looks at the ends and not means, moving away from the substantive analysis

- Conclusion : Section 7 is implicated when the state by resorting to the justice system restricts an individual’s liberty in any circumstances. Also implicated when the state restricts individuals security by interfering with or removing them, control over physical or mental integrity. When the state either directly through its agents restricts certain privileges or liberties using the threat of punishment in cases of non-compliance.

o So in this case, the rights under section 7 do not extend to the right to choose to exercise their chosen profession.

Gosselin v Quebec – no positive protection - Facts: Challenge to the Quebec legislation which decreased welfare payments of people under 30 to 1/3

of those over 30. Trying to encourage people to get off welfare by making it very close to being insufficient to live off.

- There was three claims with respect to section 7 (1) the legislation affects an interest protected by right to LLSP within the meaning of section 2, (2) by providing inadequate benefits constitutes a deprivation by the statute (3) if deprivation of a right protected by section 7 is established, this was not accordance with section 7 PFJs

- Question : Can Section 7 be applied to economic security? Whether the right to a level of social assistance sufficient to meet basic needs falls within Section 7.

- Decision: The section 7 argument is not accepted. It is rejected on basis of the adequacy of the argument that security of the person is impaired by this. Section 7 is restricted to the state’s ability to deprive people of LLSP, such deprivation does not exist here.

o Not convinced in this case, that even if it existed under section 7 there is enough evidenceo They deliberately leave out the scope of section 7. o Administration of justice is the dominant strand but leave open whether it can apply outside this.

- Is the state responsible for the vulnerability that is at issue? Question of whether security of the person can create a positive right of support?

o No inclusion of positive obligations . So the question is not whether it has been recognized to include positive action but whether in the present circumstances it should be expanded

o Here such expansion is not warranted but don’t say that there will never be situations where they never have a positive obligation on the court

- Don’t use it as an opportunity to say there is an economic component to security of the person, but they are also reluctant to rule it out

Chaoulli v Quebec- Question : Does the prohibition that prevents obtaining insurance to obtain private sector services that are

available under Quebec’s Public Health Plan deprive people of access to health care services that do not come with wait they face in public systems.

- The situation is way outside the administration of justice context, dealing with health insurance within Canada.

- It is an authoritative interpretation of section 7, steps beyond the adjudicative decision- 3 Decisions : So technically it is a three to three decision, of a seven judge panel, so really an open

question about which interpretation of section 7 will dominate. So cannot depend on any one of these decisions

o McLauchlin, Major and Bastarache: They agreed with Deschamps reasons but also found for the appellants on the basis of Section 7.

o Binnie, LeBelle and Fish: Dissented with respect to both Charterso Deschamp: She based her judgement solely on the Quebec Charter and declined to address

Section 7. Deschamp

- Decision : Finds that the prohibition infringes the right to personal inviolability and that it is not justified by a proper regard for democratic values, public order and the general well-being of the citizens of Quebec. Built around the Quebec Charter

- She says it is not necessary to find a causal relationship between buying private insurance and waiting times. But then how can you get a prima facie breach of the Quebec Charter if you don’t have this?

o Threat to the viability is the waiting times, how can just not being able to buy private insurance threaten viability. Without the nexus no breach to build the analysis.

- Factors for her that justify this- (1) The general objective is to provide the best health care possible, and allowing people to buy private

allows them to get the best careo Argument : Prohibition on private health care is to avoid the two tiered system which can be

detrimental to the poor. It you allow dual system then you will end up in a situation where people who can pay more get best service while people who can’t pay may be worse off.

o Response : This is not essential; there are other provinces and countries who have this system. Even if it were assumed that the prohibition on private insurance could contribute to the preserving the integrity of the system, the variety of measures implemented by different provinces shows that prohibiting insurance K is by no means the only measure a state may adopt to protect the systems integrity. One reason why the public sector won’t be eroded because the government can force doctors in the private sector to work in the public sector

o Criticisms : These programs are very complex so is it sufficient to just take one feature from anther jurisdiction and say it is not important to this system? Webber doesn’t think so, so much that goes into these systems so how can you just compare one feature. Other jurisdictions have criticisms of this two tiered system. Like the Australian system has similar problems. Invalidating a provision in a complex system seems to be an inadequate remedy. There seems to be a huge amount of reasoning that has to be supplied, but her decision doesn’t really seem to be providing that. If the problem is waiting lists, can you just pick out that one part and decide on it

- (2) Deference: the courts have a duty to rise above political debate and they leave it to the legislature to develop social policy. But when social policies infringe rights, the courts cannot shy away from considering them.

o The court must show deference where the evidence establishes that the government assigned proper weight to each of the competing interests.

o Certain factors favour deference, and it is up to the government to choose the measure that the decision is often complex and difficult and that the government must have the necessary time and resources to respond.

o In this case, the courts have all the necessary tools to evaluate the government’s measures. Here the government has not shown the effectiveness of the prohibition and not proved that it minimally impairs. So do not go onto proportionality

- The appellants have successfully shown that their right to life and personal inviolability has been infringed.

- Do we want this type of reasoning to be the type that designs the health care system. This is so amateur, no depth of how the system works

McLachlin and Major- Decision : By imposing exclusivity and then failing to provide public health care of a reasonable

standard within a reasonable time, the government creates a circumstance that triggers the application of Section 7.

o Where a law adversely affects LLSP, it must conform to the PFJ. This law does not. - Question : Is it a violation of Section 7 to prohibit private insurance for health care, when the result is to

subject Canadians to long delays with resultant risk of physical and psychological harm?- A law is arbitrary where it bears no relation to or is inconsistent with the objective that lies behind it. In

order to not be arbitrary, it requires no only a theoretical connection between the limit and legislative goals but a real connection on the facts and the onus is on the claimant to show no connection.

o When we look to the evidence rather than the assumptions, the connection between prohibiting private insurance and maintain quality public health care vanishes.

o They see a nexus between the denial of private health insurance and waiting times. There are long waiting times for certain procedures which people could get access to in shorter times if they bought private insurance

o They see the ability to buy private insurance as a solution to the long waiting times. - The question is whether it makes sense to improve the system for people who can’t put themselves to the

front of the line. Is it a right to effective health care, or timely health care that is protected?- You have a right to pay money to gain better health care, no right to health care or short waiting times as

such. Right to use your private resources to purchase health careo So may be a question of whether it is a property right. To use property to get the best health care

that you can. o The private sector is not subject to scrutiny if no public system then no violation of rights, even

if the private rights made things worse. This is because it is outside the Charter as it is in private realm.

Private interaction is treated as normal baseline So it is okay if the dismantling of the public system causes majority of Canadian’s health

outcomes are worse- Criticisms : No examination of whether there are waiting times in the private sector where private

systems exist. It is true that there are waiting times, but no comparative examination. Also no examination about the principle argument that if this kind of opting out is permitted, it can increase waiting time for the rest of the population.

o You see that whatever is the result of private services it is outside the Charter scrutiny, only the public restraint on private purchasing will bring the Charter in.

o We are concerned with individuals access to use own funds for own purposes, even if those restraints cause improved results on everyone else.

o Beginning to look more like the protection of individual economic liberty. Binnie and LeBel

- The public cannot know the judges or government cannot know how much health care is reasonably enough to satisfy section 7

- I believe it is a far greater perversion of Canadian values to accept a system where money, rather then need, determines who get access to health care.

- The appellants arguments on “arbitrariness” is based largely on generalizations about the public system drawn from fragmentary experience, on overly optimistic view of the benefits offered by private health insurance, an oversimplified view of the adverse effects on public health services to flourish and on overly interventionist view of the role the courts should play in trying to supply a “fix” to the failing of major social programs.

o Governments are entitled to act on reasonable apprehension of risk and they accept the finding that a two-tier system would likely have a negative impact on the integrity, functioning and viability of the public system.

- Section 7 : courts have been moving away from a narrow approach to section 7, which restricted the scope of the section to legal rights to be interpreted in light of section 8-14.

o The real control over the scope of section 7 is to be found in the requirement that the applicant identify a violation of a PFJ. Here it does not satisfy the three part test for a PFJ. (1) It must be a legal principle (2) the reasonable person must regard it as vital to our societal notion of justice which implies a significant societal consensus (3) must be capable of being identified and applied that yields predictable results.

o A breach of PFJ will be made where the individuals have been deprived for no valid purpose. So relation between statute and state interest must be considered.

- Don’t agree with majority that the prohibition against private health care bears no relation with preservation of access to health based system. It is arbitrary for Quebec to discourage the growth of private sector health care.

Summarize points in three ways- (1) Rights are not about what provides good health care options, but rather about people looking after

themselves See the application of the Charter to a public program as opposed to a private program where you use your own funds. Public programs get Charter scrutiny but no such thing with respect to private

o The private is seen as the normal, baseline acceptable standardo The right that seems to be upheld is people take care of their own health care even if it is to the

detriment of others in society. Seems to be a very economic injury. - (2) Amateurness of the policy judgment is made here. They don’t do this in other jurisdictions, so not

going to do it hereo Cherry-picking facts to support the decision that the court makeso They don’t accept the balance of the decisions from the committees from which they take factso No comparison with the private system and the idea of which has a better outcome

Deschamps says that I don’t even have to look at that, very nonsensical This does not sound very deferential

- (3) Forced participation which has waiting times, the push against waiting times is what seems to push this decision

o Even though the people who bring the actions aren’t even subject to the waiting times. This is a very generalized discussion to insurance and waiting times.

- The way that the tests are articulated, cannot assume that McLauclin and Major are the dominant view, the judges all take very different approaches. See two alternative approaches

McLauchlin and Major Binnie and La BellSecurity of the Person

Significant adverse psychological affects, constitutes the infringement of security of the person

They work off the Morgentaler decision

“More than the ordinary anxieties in life”.

Has to be a fairly high threshold.

They think that threshold that M and M apply is too low, because it relies on unreasonable waiting times and no one says that there are no waiting times in private system.

Very difficult to say what kind of comparative psychological stress is present in the alternative system. To vague and cannot serve as a foundation for this kind of approach.

They seem to be saying that M and M have the subtext of Freedom of contract animated in their judgement,

Fundamental Justice

They seize on to “arbitrariness”

The provision as it stands is “unnecessary” to achieve the right, the “contribution vanishes”.

They suggest that “arbitrariness” needs to be defined in a more strict fashion, “inconsistent with the aim”. Therefore this test is more stringent

This is where you see the division in the judgement, everything for them depends on second guessing in comparison to the private sector. Courts should not deal with general second guessing

Therefore the real content of section 7 is found within fundamental justice, articulate the 4 points from Malmo Levine.(1) Based on a Legal Principle, not just policy judgement(2) Some consensus, judges should be identifying what is

the best understanding of what societies view should be and applying it. Need some principle which needs to be located in a law of society. They argue that fundamental justice is that judge has to rely on something more than just their opinion. It doesn’t get rid of disagreement but recognizes that judges are trying best to work out what should be the law of society and the apply it. They think M and M are saying I don’t like waiting times and they are successive.(3) Fundamental to operation of legal system(4) Manageable standard

- In comparing the judgements, both are relying on significant adverse effects, but the difference becomes starker in fundamental justice as they both distinguish arbitrariness quite differently.

- Here it is important to remember that the case was not decided on section 7, and the third person made it clear that this type of analysis might not apply to section 7.

- Everyone agrees the section 7 analysis extends beyond the narrow approach that Lamer articulated which is the core approach. But the way to do it is different.

Webber- Mistake about seeing constitution as limiting government, it is about defining and fashioning a public

voice.- The first part of the course dealt with Parliamentary Sovereignty as being the appropriate branch about

what should be the voice of society as a whole. - The courts are seen as playing an important role in ensuring individuals are treated fairly and the

primary agent in determining the general rules that apply is still the legislature. Courts are about determining the consequences of specific rules applied.

- Federalism is about us having a big diverse country, for some matters it is appropriate about making decisions in the sub-units

o Two levels of public voice, country as a whole and then the provinces- The Charter looks more like a limitation, ensuring government doesn’t trespass on the rights. This is the

way in which the Charter is conceived and continues to be conceived. o Depends heavily on what is the appropriate agency to decide these issueso Chouli is a good example of this, the notion of who decides on what type health care system we

should have. - Big problem of government is what the norms of society should be, fashioning society’s voices.

Allowing the structure to occur in communities and different in situations that have different capacities- The public voice also speaks in different languages. Another thing that is going around is allowing

different contexts in which different languages can be usedo An example is federalism and the notion of Quebec. We would have a much more centralized

system if it was not for Quebec. Quebeckers don’t want the ability to have their system and language in the government eroded.

12. Section 35: The Constitutional Recognition of Community

Section 35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

- Was placed in Constitution to show that the rights existed before. - There was a real question of how much of a guarantee this imposed. The first nations people actually

opposed this because it was not clear what this contained and what the aboriginal rights should mean

- Had conferences devoted to the discussion of Aboriginal rights, part 3 and 4 were added from this, but these fell out in respect to self-government. Not enough agreement with the Provinces to have this amendment, this was one of the things that lead to the defeat of the Meech Lake Accord. Don’t address Quebec’s concerns until ours have also been addressed.

R. v Sparrow - Facts : He was fishing with a net bigger then allowed by his license but defended the challenge on the

basis that he was exercising his Aboriginal right to fish and that the net length restriction contained in the Band’s license was inconsistent with Section 35.

- Issue : Whether the Parliament’s power to regulate fishing is now limited by Section 35(1) of the Constitution and more specifically whether the net length restriction in the license is inconsistent with that provision.

- “Existing” : the rights to which Section 35(1) applies are those that were in existence when the Constitution Act came into effect.

o It must be interpreted flexibly so as to permit evolution over time. Does not mean the Aboriginal rights as they happened to be in 1982 because then this could create a patchwork of constitutional rights

- “Aboriginal Right” : In the context of Aboriginal rights, it could be argued that before 1982, an Aboriginal Right was automatically extinguished to the extent that it was inconsistent with a statute. Nothing in the Fisheries Act that demonstrates a clear and plain intention to extinguish the Indian right to fish.

o Definition of aboriginal rights is drawn from the history of the interaction- “Recognized and Affirmed”: When the purposes of Section 35 are examined it is clear that a generous,

liberal interpretation of the words in the constitutional provision is demanded. o The government has the duty to act in a fiduciary capacity with respect to Aboriginal people.

Contemporary recognition and affirmation of Aboriginal rights must be defined in light of this historic relationship.

o Need to demand justification of any government regulation that infringes upon Aboriginal rights. o Should be read against the historical experience, generous interpretation which is consistent with

the honour of the Crown should take the aboriginal perspective and not be frozen in time and can be used in contemporary ways.

Sets out general principles of what aboriginal rights are. Right to fish for food and ceremonial purposes Reject the idea that historically determined rights are influenced by the detail of past

dealings because it would create patchwork- They adopt the Hull test of extinguishment from Calder

o Must have clear and plain intention to have extinguishing. o Regulation of a right does not amount to extinguishment.

- The question then becomes what does recognized and affirmed meano Has to be more than just mere acknowledgement of the right, it is not absolute protection. They

essentially say that it is possible for governments to limit aboriginal and treaty rights but there is a two part test to limitation

o (1) Valid objective with the honour of the Crown. Here fishing would be safety

o (2) Has to be a link between the aim and the measure. Impair the right as little as possible, consultation

- This is very similar to Section 1 but it does not apply to section 35, but they create a structure that is not that different from section 1, the objective component looks similar, also the means which they use. The need for compensation and consultation is different

- They use the norm that shapes all of this as being the honour of the Crown or the fiduciary duty as being identical but later on in Haida they get split.

- (1) Whether the legislation in question has the effect of interfering with an existing Aboriginal right? o If it does, then a prima facie breach. To determine thiso (a) is the limitation reasonableo (b) Does the regulation impose undue hardshipso (c) Does the regulation deny to the holders of the right deny their preferred means of exercising

that right?o Onus on the person challenging it

- (2) The Crown would have to say its justifiedo (a) Is there a valid legislative objective? o (b) Is the regulation imposed required to accomplish the right done so in a way that has as little

infringement on the right as possible?

R v Van Der Peet - This decision has been highly criticised, Delgamuk is a response to these criticism- Facts : she was caught selling fish contrary to S.27(5) of the regulation. She defended the challenge

against herself on the basis that in selling fish, she was exercising an existing Aboriginal right to sell fish. The sections are invalid because they infringe section 35

- Issue : How are the Aboriginal rights recognized and affirmed by Section 35(1) of Constitution Act to be defined?

- How to interpret : Sparrow has said that if there are any ambiguities in how to interpret Aboriginal rights, such ambiguity should be resolved in favour of Aboriginal people. In order to be an Aboriginal right, an activity must be an element of a practice, custom, or tradition integral to the distinctive culture of the Aboriginal group claiming the right.

o Courts must take into account the perspective of the Aboriginal people themselves. o Must identify the nature of the right being claimedo Look at the general and not the specific. o Must demonstrate that the practice, custom or tradition was a central and significant part of the

society’s distinctive culture. o Must look at pre-contract rights. The evolution of practices into modern forms will not, provided

that continuity with pre-contact practices, customs and traditions is demonstrated, prevent their protection as Aboriginal rights.

o Incidental rights will not qualify, must be integral to the community. o Have to define the right with precision. Here it is the right to fish to trade for moneyo The right has to be “distinctive” to societyo May even have to be unique to the society, but somehow disvow that

- Test: (1) Identify the precise nature of the appellants claim and (2) was the practice of exchanging fish for money or other goods an integral part of the specific distinctive culture of Stolo prior to contact?

o The very specific right must have been integral to this specific people’s history, prior to the moment of interaction between the two groups.

- Can use the rights in a contemporary form, but the more specifically you define it, the more likely it will be frozen.

- The rights will be more tightly tied to how they were used historically.- The first criticism is that freezes rights to pre-contact. - The second concern is the focus on the cultural component

o What about an interest of land or economic issueso Is it only when there is a strong cultural element that it will be protected

- The third was the date of origin, the notion of contact. The time will differ in different parts of Canada, so you will have to inquire when exactly they were contacted. What about things that are tied up with the Aboriginal culture, like the fur trade, which happened post-contact

o So is this outside the framework of Aboriginal rights

o What about the Metis, the people who came to be as a result of this contact. So they have no Aboriginal rights because they have were not around at contact. So they have a different time, the moment that they lost their autonomy from separate governmental action.

- It imposes a cultural frame that is read highly specifically with contact as the date

Delgamuukw v British Columbia- Facts: Claim was originally for “ownership” of the territory and “jurisdiction” over it, but in the SCC,

the claim was transferred into a claim for Aboriginal title- The Cultural test that looked general is not general, because it does not apply to aboriginal title.- So three different points of crystallization for rights

o Title = sovereignty, may be asserted before contacto Individual Rights = contacto Metis = effective government control is exerted over them

- Aboriginal Title : You get the land and the ability to use the attributes of the land in any way that you chose. May not be able to use it in such a way as to be irreconcilable with the groups attachment of the land. This may cause some uses to be excluded, ones that may be inconsistent with the historical use of land

o But still a question of the amount of control you need to get the land. The nature of control becomes an issue in the later cases

o The distinctive culture requirement is subsumed with the exclusive occupancy- Since Ottawa has authority over land reserved for Indians, after they enter Confederation the provinces

cannot extinguish the Aboriginal rights. They can regulate it but cannot extinguish it.o Ottawa is allowed to infringe Aboriginal rights provided the infringement (1) furthers a

compelling and substantial legislative objective and (2) is consistent with the special fiduciary relationship between the Crown and Aboriginals.

o Development of agriculture, forestry, mining and hydro-electric power, the general economic development of interior BC, protection of the environment or endangered species are the kinds of objectives that are consistent with this purpose and in principle can justify the infringement of Aboriginal title.

- The manner in which the fiduciary duty operates and the particular form that the fiduciary will take will be a function of the nature of Aboriginal title

o (1) Aboriginal title encompasses the right to exclusive use and occupation of lando (2) Aboriginal title encompasses the right to choose to what uses land can be puto (3) That land held pursuant to Aboriginal title have an inescapable economic component.

- The test of aboriginal title looks different from Van Der Pet, and the provinces can regulate even in the interest of economic development.

- Decision : The 2 groups get another trial or the opportunity to work this out. They did not get a future trial and negotiations have been unsuccessful. There have been large political divisions in these groups

o We cannot come to a conclusive decision because the evidence does not match the claim. They said it would be much better for negotiations because we cannot decide what sort of division would be appropriate.

o Litigation is not the way in which these disputes can be resolved and therefore the courts push the parties to the negotiation because that is the best way to resolve these issues.

Haida Nation v BC (Minister of Forests)- Facts: the government gave rights of forest land to which they hold title to companies. Haida people

claim title to that land and object to the harvesting of forests. - Issue: Is the government required to consult with the Haida about decisions to harvest the forests and to

accommodate their concerns about what if any forest in Block 6 should be harvested, before they have proved their title to the land and their Aboriginal right?

- Decision : the government has a legal duty to consult with the Haida people about the harvest of Timber, including decisions to transfer or replace tree farm licenses.

o The consultation must be meaningful but there is no duty to reach an agreement. o Otherwise you have Aboriginal people who have a strong claim but those lands are being treated

as though they belong to no oneo The honour of the Crown demands that you respect that claim, need to consult seriously and in

some cases make accommodation. o Good faith on both sides is required. o The Crown’s part must be “the intention of substantially addressing Aboriginal concerns as they

are raised through a meaningful process of consultationo The Aboriginal claimants must not frustrate the Crown’s reasonable good faith attempts, nor

should they take unreasonable positions to thwart government from making decisions or acting in cases where despite a meaningful consultation agreement is not reached.

o Sliding Scale:o Where the claim is weak the only duty on the Crown is to give notice, disclose information and

discuss any issues raised in responseo Where the claim is strong prima facie case for the claim is established the right and potential is

of high significance, deep consultation aimed at finding a satisfactory interim solution may be required.

o Also how much interference there is- Fiduciary Obligation : Means that you have to administer whatever property you have as a fiduciary,

entirely in the interest of the beneficiary. The model is a trust, where a trustee administers the property for the benefit of the beneficiary and not themselves. Distinguished from the full blown fiduciary obligation. This only exists with specific indigenous situations. The full blown fiduciary duty does not exist in this case.

o But if you are dealing with the government how can they be the negotiating party for non-aboriginal people and the entire interest of the aboriginal people. Therefore this is restricted to a specific obligation upon the Crown.

- When the Crown has knowledge real or constructive of aboriginal title and it is contemplating doing something that will impact that title, they have a duty to consult

- This is a general obligation on any assertive right, it is owed by both Ottawa and the Provinces, but not by private parties. This is a governmental obligation.

General Consideration- An obligation to negotiate is something that comes out of all these cases. Aboriginal title is seen as

being an inter-societal relationship, very difficult to resolve with abstract legal principles in the court. - So the courts have drawn back saying you have to negotiate so we will prompt negotiations by creating

very broad parameters- But these are not that effective and people have real frustrations because they come out of these cases

with nothing- Courts have said that good solutions will not come out from them, therefore need negotiations. - They don’t feel capable of developing abstract principles that will do justice in the sense of how they

should live together on the land. - No one doubts that the government obtained sovereignty. The last paragraph in Delgamuk, sovereignty

is accepted but the issue is with the reconciliation of Aboriginal people who were there before. They are not saying that the Aboriginal people have sovereignty

- In Haida they talk about the asserted sovereignty of the Crown, para 36. At para 20, the treaties seek to reconcile the existing Aboriginal sovereignty and the asserted Crown sovereignty

o Here the notion of sovereignty is confused, Aboriginal people were sovereign at least prior to the European people coming in.

o Acknowledgment of where sovereignty exists in this case is confused. - There is an interesting development in the notion of sovereignty and how it will be different and allow

them to evolve rather then decide them- (1) Emphasis on negotiations

- (2) Increasing willingness on the notion of sovereignty- Is aboriginal title about property interest

o Webber says no, property law is not the best frame to understand it. For just about every aboriginal people title is not held by them as a whole. The rights are held by groups defined by kinship. Rights over land tend to be in the houses.

o Under the Royal Proclamation you have collective negotiations between the government and other nations. The emphasis on negotiations says not just a right to land that is absorbed into a property interest, but an interaction between two social orders. So have to figure out the relation between

o So the courts have expressed no interest to express the rights within the people. In Delgamuuk they asked for property to the houses, but the court reshaped the claim for the interest of the people in general. Whereas the people dealt with the title as related to the houses

o Aboriginal people are autonomous peoples yet at the same time were also part of the broad Canadian community. More complicated nesting within the Canadian culture that is also considered.

o They want not just full ownership of lands within a Canadian property law regime, but a right over those lands to be governed by their norms. Argued for ownership and jurisdiction

o Often collective is seen as being in conflict with individualo But is it better to say that aboriginal people should have the same equality rights as regular

people