NCA Canadian Constitutional Law Outline

NCA Constitutional law outline (2012) I. Basic Concepts 1. Sources and Nature of the Constitution: The Constitution Constitution of Canada includes: (a) the Canada Act of  1982, including this Act (b) the Acts and orders referred to in the schedule; and (c) any amendment to any Act or order referred to in paragraph (a) or (b) (a) Canada Act, 1982 which includes the Constitution Act, 1982 (being schedule B of the Canada Act 1982; (b) list of 30 Acts and orders in the schedule to the Constitution Act, 1982 that includes Constitution Act, 1867 and its amendments, the orders in council and statutes admitting or creating new provinces or altering boundaries, and the Statute of Westminster (c) comprises the amendments which may in the future be made to any of the instruments in the first two categories 1.1 the Supreme Court of o f Canada invoked the unwritten principles of democracy, federalism, constitutionalism constitutionalism and the protection of minorities to hold that, if a province were to decide in a referendum that it wanted to secede from Canada, the federal government and the other provinces would come under a legal duty to enter into negotiations to accomplish the secession (Reference re Secession of Quebec 1998); 1998); case law (common law) is an exceedingly important source of constitutional law Supremacy clause: 52(1)— 52(1)—The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect Entrenchment clause: 52(3)— 52(3)—Amendments Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada

2. AMENDING PROCESS 2.1 General amending procedures: section 38(1) —authorized by resolutions of houses of the federal parliament and resolutions of the legislative assemblies of at least 2/3 of the provinces, provided they represent at least 50% of the population of all the provinces (70-50 formula) a. Principle of proportionate representation of the provinces in the House of Commons b. Powers of the Senate and the method of selecting Senators c. The number of members by which a province is entitled to be represented in the Senate and the residence qualifications d. subject to paragraph 41(d), the Supreme Court of Canada e. the extension of existing provinces into the territories f.

notwithstanding notwithstanding any other o ther law or practice, the establishment of new provinces

2.2 Unanimity procedures: section 41— 41 —only where authorized by resolutions of the Senate and House of  Commons and of the legislative assembly of each province; a. office of the Queen, the Governor General and the Lieutenant Governor of the province b. the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part c.

comes into force subject to section 43, the use of the English or the French language

d. the composition of the Supreme Court e. an amendment to this Part Resolution of assent— assent—may be revoked only before the issue of the proclamation authorized authorized by the resolution. A revocation of assent after the issue of the proclamation cannot be permitted, because that would render every amendment permanently vulnerable to abrogation by the action of a single province or a few provinces Resolution of dissent— dissent—(an opting-out resolution) may be revoked at any time, before or after the issue of the proclamation 3. Forces of change (future amendments): a. French-Canadian French-Canadian nationalism b. Western regionalism— regionalism—distinct economic based of the 4 western provinces c.

Demand by the aboriginal peoples— peoples—Indian, Inuit and Metis

d. Canadian nationalism e. Civil libertarian impulse f.

Continuing need for amendments— amendments—example, EI, old age pension

3. FEDERALISM and JUDICIAL REVIEW Powers of the Dominion and the provinces are defined in the Constitution Acts, 1867 to 1982, which are part of the Constitution Constitution of Canada. Amendment, Amendment, neither the federal Parliament nor a provincial legislature has the power to alter unilaterally the provisions of the Constitution of Canada: the amending procedures of Part V of the Constitution Act, 1982 must be used for that purpose Supremacy clause [s 52(1)] —the essential characteristic characteristic of a federal constitution is the distribution of 

governmental power between coordinate central and regional authorities. This requires a constitution which defines the powers vested in the central and regional authorities. The constitution constitution (or at least this part of it) must be in writing, because such a vital matter could not be left to unwritten understandings. understandings. The constitution must be supreme, meaning that it must be binding on, and unalterable by, each of the central and regional authorities. [any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect]

The federal constitution must be rigid or entrenched. The term rigid does not imply that it cannot be amended, for all federal constitutions contain provision of amendment – amendment – but it does imply that the power-distributing power-distributing parts of the constitution constitution cannot be amended by ordinary legislative action: a special, and more difficult, process is required for amendment Secession Reference (1998)—An unconstitutional secession could become successful if the seceding

government achieved effective control of a territory and recognition by the international community. In that case, the constitutional law of Canada would eventually have to recognize the reality [principle of  effectiveness—a unilateral secession might ultimately become successful root of a new state] Clarity Act: Referendum of secession; clear question— question—if the question would result in a clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become independent state Not clear: (1) if the question merely focuses on the mandate to negotiate, or (2) if it envisages [contemplat [contemplate e or conceive of as a possibility or a desirable future event] economic or political arrangements arrangements with Canada that obscure a direct expression of the will of the population of that province on whether the province should cease to be part of Canada; even if a question is clear and the majority is clear, no Minister of the Crown is to propose a constitutional amendment to the effect the secession of the province unless “the government of Canada has addressed, in its regulations, the terms of  secession that are relevant in the circumstance, including the division of assets and liabilities, any changes to the borders of the provinces, the rights, interests and territorial claims of the Aboriginal peoples of Canada, and the protection of minority rights” Section 3, Clarity Act— Act —recognizes that under the Constitution of Canada, there is no right of unilateral secession, and that an amendment of the Constitution would be required for a province to secede from Canada Cooperative federalism – federalism – network of relationships mechanisms between the executives and the central and regional governments. Through these relationships mechanisms are developed, especially fiscal mechanisms, which allow a continuous redistribution redistribution of powers and resources without recourse to the courts or the amending process. 4. PRINCIPLES OF INTERPRETATION Characterization Characterization of laws: (a) Matter—the Matter —the first step in judicial review is to identify the “matter” of the challenged law; matter— matter—pith and substance of the law (dominant or most important characteristic characteristic of  the law); to determine whether the law is constitutional or not Purpose: Ward v Canada (2002) —The pith and substance of law was the management of the fishery, which came within within the federal authority over “sea coast and inland fisheries “[s 91(12)] Effect: The Court will consider the effect of the statute, in the sense that the court will consider how the statute changes the rights and liabilities of those who are subject to it : Alberta Bank Taxation Reference Reference

(1939) —the impact on the banks of the tax; the severity of the tax as one of the reasons for concluding

that the statute should be characterized as in relation to banking than taxation Saumur v Quebec (1953)—the by-law constituted effective bar to the dissemination of literature

because the chief of police would examine the contents of the material to be distributed, and would make his decision on the basis of whether he found the contents to be objectionable or not. Efficacy: Re Firearms Act (2000) —the restrictions restrictions on access to guns could have an effect on the incidence or severity of crime, especially domestic crime, and could reduce suicides and accidents, while a register of firearms would help to trace stolen or lost guns and contribute to the detection of crime. Parliament is the judge of whether a measure is likely to achieve its intended purposes; efficaciousness is not relevant to the Court’s division of power analysis. Colourability: is the doctrine invoked when a stature bears the formal trappings of a matter within  jurisdiction, but in reality reality is addressed addressed to a matter outside outside jurisdiction; jurisdiction; the the legislative body cannot do do indirectly what it cannot do directly R v Morgentaler (3) (1993) —the statute and regulation were aimed primarily at suppressing the

perceived harm or evil of abortion clinics and that they were properly characterized as invalid criminal laws. The statute was struck down in its entirety despite the fact that 8 of the 9 designated hospital procedures had nothing to do with abortion. The 8 non-abortion procedures were smokescreen to conceal from a reviewing court the true purpose of the legislation. Presumption of constitutionality— constitutionality—transfer from the law of evidence the idea that a burden of  demonstration lies upon those who would challenge the validity of a statute which has emerged from the democratic process. Three legal consequences: (1) in choosing between competing, plausible characterization characterization of a law, the court should normally choose that one that would support the validity of  the law, (2) where the validity of a law requires a finding of fact (example, the existence of an emergency), that finding of fact need not be proved strictly by the government; it is enough that there be “rational basis” for the the finding, (3) where a law is open to both narrow and a wide interpretation, and under the wide interpretation the law’s application would extend beyond the powers of the enacting legislative body, the court should “read down” the law so as to confine it to those applications that are within the power of the enacting legislative body; If the law is challenged on Charter grounds as opposed to federal grounds, there is no presumption of  constitutionality, constitutionality, except for the third doctrine, “reading down”, which also applies in Charter cases Canadian Western Bank v Alberta (2007)—Interjurisdictional immunity would apply only if a “core

competence” competence” of Parliament or a vital or essential part of an undertaking it duly constitutes” would be impaired by a provincial law. If the core competence or vital part would merely be affected (without any adverse consequence) by a provincial law, no immunity immunity applied. Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010: Paramountcy Paramountcy may flow

either from the impossibility of complying with both federal and provincial laws or from the frustration of a federal purpose. Here, there was no operational conflict, since the federal legislation did not require

the construction of an aerodrome and it is possible to comply with both the provincial and federal legislation by demolishing the aerodrome. Approaches to assessing constitutional challenges to legislation: 1. pith and substance of the provincial law and the federal law— law—validity and nature of overlap, if  any 2. applicability of the provincial law to the federal undertaking or matter in question must be resolved with reference to the doctrine of interjurisdictional immunity. immunity. 3. only if both the provincial law and the federal law have been found to be valid pieces of  legislation, and only if the provincial law is found to be applicable to the federal matter in question, then both statutes must be compared to determine whether the overlap between them constitutes a conflict sufficient to trigger the application of the doctrine of federal paramountcy. Pith and substance: This analysis consists of an inquiry into the true nature of the law in question for the purpose of identifying the matter to which it essentially relates. relates .[1] 

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If its pith and substance can be related to a matter that falls within the jurisdiction of the legislature that enacted it, the courts will declare it intra vires. vires. If, however, it can more properly be said to relate to a matter that is outside the jurisdiction of that legislature, it will be held to be invalid owing to this violation of the division of powers. The corollary to this analysis is that legislation whose pith and substance falls within the jurisdiction of the legislature that enacted it may, at least to a certain extent, affect matters beyond the legislature’s legislature’s jurisdiction without without necessarily necessarily being unconstitutional. At this stage of the analysis, the dominant purpose of the legislation is still decisive. Merely incidental effects will not disturb the constitutionality of an otherwise intra vires law. law.[2]

double aspect doctrine— doctrine —applies in the course of a pith and substance analysis recognizes recognizes that both Parliament and the provincial legislatures can adopt valid legislation on a single subject depending on the perspective from which the legislation is considered, that is, depending on the various aspects of the matter in question. question.[4] Interjurisdictional immunity —Interjurisdictional immunity should in general be reserved for situations already covered by precedent. In practice, it will be largely reserved for those heads of power that deal with federal things, persons or undertakings, or where in the past its application has been considered absolutely indispensable or necessary to achieve the purpose for which exclusive legislative jurisdiction was conferred, as discerned from the constitutional division of powers as a whole, or what is absolutely indispensable or necessary to enable an undertaking to carry out its mandate in what makes it specifically of one jurisdiction or the other. other .[7]

While in theory a consideration of interjurisdictional interjurisdictional immunity is apt for consideration after the pith and substance analysis, in practice the absence of prior case law favouring its application to the subject matter at hand will generally justify a court proceeding directly to the consideration of federal paramountcy. paramountcy.[8] Even in situations where the doctrine of interjurisdictional interjurisdictional immunity immunity is properly available, the level of  the intrusion on the core of the power of the other level of government must be considered. To trigger the application of the immunity, it is not enough for the provincial legislation simply to affect that which makes a federal subject or object of rights specifically of federal jurisdiction. The difference between

“affects” and “impairs” is that the former does not imply any adverse consequence whereas the latter does. In the absence of impairment, interjurisdictional immunity does not apply. It is when the adverse impact of a law adopted by one level of government increases in severity from affecting to impairing that the core competence of the other level of government or the vital or essential part of an undertaking it duly constitutes is placed in jeopardy, and not before. before.[9]

5. PARAMOUNTCY Federal Paramountcy: the doctrine of federal paramountcy, when the operational effects of provincial

legislation are incompatible with federal legislation, the federal legislation must prevail and the provincial legislation is rendered inoperative to the extent of the incompatibility. incompatibility. The doctrine applies ap plies not only to cases in which the provincial legislature legislature has legislated pursuant to its ancillary power to trench on an area of federal jurisdiction, but also to situations in which the provincial legislature acts within its primary powers, and Parliament pursuant to its ancillary powers. In order to trigger the application of the doctrine, the onus is on the party relying on the doctrine of federal paramountcy to demonstrate that the federal and provincial laws are in fact incompatible by establishing either that it is impossible to comply with both laws or that to apply the provincial law would frustrate the purpose of  the federal law. law.[10] (a) impossibility of dual compliance— compliance—compliance with one law involves breach of the other (b) frustration of federal purpose— purpose—where there are overlapping federal and provincial laws, and it is possible to comply with both laws, but the effect of the provincial law would be to frustrate f rustrate the purpose of the federal law; provincial law is incompatible with the purpose of the federal law Canadian courts rejected the “covering the field” (or negative implication) test of inconsistency —a federal law may be interpreted as covering the field and precluding any provincial laws in that field, even if they are not contradictory of the federal law; a federal law may be read as including not only its express provisions, but also a “negative implication” that those express provisions should not be supplemented or duplicated by any provincial law on the same subject. Under this test the question is whether the provincial law is in the same “field” or is upon the same subject, as the federal law: if so, the provincial law is deemed to be inconsistent with the federal law Temporal limitation of the doctrine of paramountcy: it will affect the operation of the provincial law

only so long as the inconsistent federal law is in force. If the federal law is repealed, the provincial law will automatically “revive” (come back to operation) without any reenactment by the provincial Legislature Rothmans, Benson & Hedges Inc. v. Saskatchewan: dual compliance is possible in this case; Section 6 of 

The Tobacco Control Act does Act does not frustrate the legislative purpose there is no inconsistency between s. 6 of The of The Tobacco Control Act and Act and s. 30 of the Tobacco Act that Act that would render the former inoperative pursuant to the doctrine of federal legislative paramountcy

6. PROPERTY AND CIVIL RIGHTS Section 92(2) confers upon the federal parliament the power to make laws in relation to the regulation of trade and commerce Parsons was the owner of a hardware store that was covered by an insurance policy provided by Citizen Insurance Co. of Canada. When a fire burnt down the store Parsons tried to collect on the insurance but he was denied on account of an exemption clause found in the contract. Parsons sued the Insurance Company for not conforming to the Ontario Fire Insurance Policy Act. The Insurance Company argued that the Act was ultra vires of the province, and only the federal government could regulate matters in relation to the trade and commerce power. Construing therefore the words "regulation "regulation of trade and commerce" by the various aids to their  interpretation above suggested, they would include political arrangements in regard to trade requiring the sanction of parliament, regulation in matters of inter-provincial inter-provincial concern, and it  may be that they would include general regulation of trade affecting the whole dominion. In all, Smith establishes three characteristics of the trade and commerce power: 1) the "regulation of trade and commerce" should not be read literally 2) it includes international and interprovincial trade as well as "general regulation of trade affecting the whole dominion" 3) it does not extend to regulate contracts between businesses. Chatterjee v. Ontario (Attorney General) [2009]: The CRA was enacted in relation to property and civil rights and could incidentally affect criminal law and procedure without doing violence to the division of  powers. There was no general bar to a province's enacting civil consequences consequences to criminal acts provided that the province did so for its own purposes in relation to provincial heads of legislative power. The CRA did not introduce an interference with the administration of the Criminal Code provisions. Procedural options were available where a CRA judge could consider whether the conduct of the Attorney General was abusive of the processes of the Court. Furthermore, if in particular circumstances a conflict arose with the CRA to the extent that dual compliance was impossible, then the doctrine of paramountcy would render the CRA inoperable to the extent of the conflict.

7. TRADE AND COMMERCE General Motors of Canada Ltd. v. City National Leasing [1989]: The Court found that the Act was valid

under the General Trade General Trade and Commerce power, and that the provisions were necessarily incidental to the valid subject of the Act thus were valid as well. The Court outlined the analysis for determining the constitutionality constitutionality of a provision under the "general" branch of the Trade and Commerce Commerce power. First, it must be determined "whether the impugned provision can be viewed as intruding on provincial powers, and if so to what extent". Second, it must be determined "whether the act (or a severable part of it) in which the impugned provision is found is valid". This requires examination of several factors including those listed by the court: 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;

4. the legislation should be of a nature that the provinces jointly or severally would be constitutionally constitutionally incapable of enacting; and 5. the failure to include one or more provinces or localities in a legislative scheme would  jeopardize the the successful successful operation of the scheme scheme in other other parts of the country. country. Ancillary doctrine

First, the law as a whole must be valid. If so, the Court must consider the degree of encroachment outside of the government's jurisdiction. If it is a serious encroachment encroachment the provision will only be upheld if it is necessarily incidental" to the function of the entire Act. For minor encroachments encroachments the provision need only have a "rational connection" to the entire Act. Interprovincial or international trade and commerce— commerce —federal; Intraprovincial Intraprovincial— —provincial Reference re Securities Act : on the extent of the ability of the Parliament of Canada to use its trade and

commerce power: The proposed Act is not valid under the general branch of the federal power to regulate trade and commerce. commerce .[10][11] It is mainly focused on the day-to-day regulation of all aspects of  contracts for securities within the provinces, including all aspects of public protection and professional competences. competences. These matters remain essentially provincial concerns falling within property and civil rights in the provinces and are not related to trade as a whole. Canadian federalism: flexible cooperation, cooperation, but no erosion of the division of powers: The Supreme Court noted that, since 1949, the trend has been to adopt a “flexible” view of federalism and the division of  powers.. Instead of emphasizing “watertight compartments” powers compartments” of jurisdictional jurisdictional control to ensure each level le vel of government has exclusive control over a defined list of areas, the Supreme Court has accommodated overlaps in jurisdiction and encouraged “intergovernmental cooperation.” As former Chief Justice Dickson famously noted in Ontario (Attorney General) v OPSEU, OPSEU , Canadian constitutional law permits a significant amount of overlap in the division of powers between federal and provincial legislative authority. authority.[14] Chief Justice Dickson described this overlap as the “dominant “ dominant tide of constitutional doctrines.” doctrines.”[15] While overlap is permitted and cooperation is to be encouraged, one power cannot be given an interpretation interpretation so broad that it would effectively “eviscerate” a power p ower of another level of  government. government .[19] Later, in General Motors of Canada Ltd v City National Leasing, Leasing, the Supreme Court developed a framework of questions to be used as a tool to help determine if legislation legislation meets this test of  “qualitative difference.” difference.”[34] The decision outlined five indicators that suggest the federal government has jurisdiction under the general trade and commerce power (the “General Motors” inquiry): 1. If the legislation is part of a general regulatory scheme; scheme; 2. If the scheme is under the oversight of a regulatory agency; 3. If the legislation is concerned with trade as a whole rather than with a particular industry; 4. If the legislation is such that individual provinces, acting alone or together, would be constitutionally constitutionally incapable of enacting it; and

5. If the legislation is such that the failure to include one or more provinces would jeopardize its successful operation in other parts of the country. country.[35] In the Securities Reference opinion, the Supreme Court had no difficulty concluding that the first two steps of the inquiry were satisfied: the proposed Securities Act was clearly part of a general regulatory scheme under the oversight of a regulatory agency. agency .[36] This left the final three questions of the General Motors inquiry. The third question asks whether the proposed Securities Act is concerned with trade as a whole, or a particular industry. Here, the Supreme Court acknowledged that the maintenance maintenance of “Canada’s financial stability” and the “preservation of capital markets” go beyond the regulation regulation of a single industry and are concerned with trade as a whole. whole.[37] However, the Supreme Court noted that the proposed Act is not merely concerned with these broader concerns, but also with the day-to-day, detailed regulation of all aspects of securities in the country. In doing so, the legislation overreaches areas of federal concern and descends into areas of provincial concern. concern.[38] The government of Canada argued that the securities industry has been transformed in the modern era, and now must be regulated federally. However, the Supreme Court did not think that the federal government proved this claim .[39] The fourth question asks - is the legislation such that individual provinces, acting alone or together, lack the constitutional capacity to enact it? The Supreme Court did not believe so. It emphasized that the legislation goes too far into the detailed, day-to-day regulation regulation of provincial matters. matters.[40] Finally, is the scheme such that the failure to include one or more provinces would jeopardize its successful operation? In answering this question, the Supreme Court emphasized that this step should not involve an assessment of whether the legislation involves good policy. policy .[41] Instead, the focus should be on what is “constitutionally permissible. permissible.””[42] Under the proposed Securities Act, provinces have the choice to decide whether to opt-in to the federal scheme. The legislation itself contemplates the possibility that not all provinces will be involved. This feature undermines any argument that the failure to include one or more of the provinces would jeopardize the scheme’s successful operation, because even the legislation legislation itself permits provinces to opt-out. opt-out.[43] Accordingly, the Supreme Court concluded that the proposed Securities Act was not a valid exercise of  the federal government’s general trade and commerce power. The Court determined that the Act’s main focus was the regulation of contracts and property within each of the provinces, a matter of  provincial legislative authority. authority. As a result, the Act was found to be unconstitutional and beyond the federal government’s legislative power. The Supreme Court thus indicated that a national securities securities regulator is still constitutionally possible for Canada – Canada – it would just need to involve cooperation and collaboration between the provinces and the federal government. The Supreme Court suggests that there is some experience in other federal states suggesting that this kind of “power sharing” between different levels of government in the area of  securities regulation can be successful. successful .[46]

As a result, the idea of a federal securities regulator is not entirely dead. Such a body may still emerge in the future. It is clear, however, that the proposed Securities Act, as drafted, does not fall under the federal government’s power to regulate general trade and commerce affecting the whole dominion.

8. PEACE, ORDER AND GOOD GOVERNMENT Residuary nature— nature—in its relationship to the provincial heads of power, of power, because it is confined to “matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces” except the Charter of Rights Constitution Act, 1967, section 91: It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of  Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; (1) National concern branch: “a matter of national concern must be “of import or significance to all

parts of Canada” example, aeronautics (Johannesson v West St. Paul, 1952) —the rapid growth of  passenger and freight traffic by air, the use of aircraft for the carriage of mails especially to the remote northern parts of the country, and the necessity for the development of air services services to be controlled by a national government responsive responsive to the needs of the nation as a whole To qualify as a matter of national concern, a topic must be “distinct”: it must have a singleness,

distinctiveness and indivisibility indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of  legislative power under the Constitution. Constitution. The requirement of distinctness is a necessary but not a sufficient condition for a matter to be admitted to the national concern branch. A distinct matter would also have to satisfy the provincial inability test (2) Emergency branch: pollution (R v Crown Zellerbach,1988)— Zellerbach,1988) —marine pollution, because of its

predominantly predominantly extra-provincial as well as international character and implications, is clearly a matter of  concern to Canada as a whole. The Court relied on the  provincial inability inability test as a reason for finding that marine pollution was a matter of national concern. “It is because of the interrel atedness of the intraprovincial and extra-provincial aspects of the matter that it requires a single or uniform legislative treatment. The most important element is a need for one national law which cannot realistically be satisfied by cooperative provincial action because the failure of the province to cooperate would carry with it adverse consequences for the residents of other provinces. Dual function theory under pogg power —it gives federal Parliament (1) permanent jurisdiction over

distinct subject matters which do not fall within any of the enumerated heads of s 92 and which, by nature, are of national concern, for example aeronautics and the national capital region, (2) temporary  jurisdiction over all subject subject matters matters needed to deal with with an emergency emergency Reference re Anti-Inflation Act , [1976] 2 S.C.R. 373 was a landmark reference question opinion of 

the Supreme Court of Canada on the constitutionality of the Anti-Inflat the Anti-Inflation ion Act . In what has become

among the most significant federalism cases of the supreme court, the Act was held to be within the power of the federal government. First, the Court noted that the subject-matter of the Act being inflation made it impossible to assign to one of the enumerated powers in the Constitution Act, 1867 . Consequently, the Act would be able to be upheld only under the peace, order and good government power under the Constitution which allowed the federal government to legislate in matters related to emergencies or matters of national concern. The Court looked at both options and found that the law could be saved under the emergency power of  the peace, order and good government government power. R. v. Crown Zellerbach Canada Ltd. [1988] 1 S.C.R. 401, is a leading constitutional decision of 

the Supreme Court of Canada. Canada. The Court upheld the validity of the Ocean Dumping Act - now part of  the Canadian Environmental Protection Act - finding that all matters related to polluting the ocean are within the exclusive jurisdiction of the federal government owing to the national concern branch of the "peace, order, and good government" clause in the British North America Act, 1867 (now known as the Constitution Act, 1867).

9. CRIMINAL LAW Constitution Act, 1867 s 92(27) —confers on the federal parliament the power to make laws in relation to: the criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters Section 92(14)— 92(14)—confers on the provincial Legislatures the power to make laws in relation to: the administration administration of justice in the province, including the constitution, maintenance, maintenance, and organization organization of  provincial courts, both of civil and criminal jurisdiction, jurisdiction, and including procedure in civil matters in those courts R v Malmo-Levine—Court Malmo-Levine—Court rejected “harm principle” as a requirement of a valid criminal law. Harm to the accused and moral concerns, both of which underlay the marihuana prohibition, were adequate bases for the enactment of criminal law. In other words, a purpose that will qualify to sustain a law as criminal law does not necessarily involve prevention of harm to other human beings Reference re Validity of Section 5(a) of the Dairy Industry Act (1949), also known as the Margarine [1] [2] Reference or as Can. Federation of Agriculture v. A.-G. Que., is a leading opinion of the Supreme

Court of Canada that was upheld on appeal to the Judicial Committee of the Privy Council, Council , on determining if a law is within the authority of the federal government under the Parliament of Canada' Canada's powers to legislate criminal law. law. In this particular case, the Court found that a regulation made by Parliament was ultra vires. vires. It contained sufficient punitive sanctions; however, the subject matter was not the kind that served a public purpose. Background Under section 91(27) of the Constitution Act, 1867 (or, 1867  (or, at the time of this case, the British North America  Act, 1867  1867 ), ), Parliament receives exclusive powers to legislate in regard to the criminal law. The precise meaning of the criminal law power, however, had proved controversial. In Board of Commerce (1922), the JCPC seemingly chose to define criminal law power as limited to prohibiting only what was criminal

in 1867, the year of Canadian of  Canadian Confederation. Confederation.[4] This was overturned in Proprietary Articles Trade Assn. v.  A.-G. Can.( Can.(1931), in which it was found criminal law means Parliament could legitimately prohibit any act "with penal consequences." The problem with the latter decision was that it gave Parliament an excuse to legislate in regard to many matters. matters .[4] The matter came before the courts again with the Margarine Reference, Reference, and a compromise was attempted. In this case, Parliament had legislated against the production and trade of  margarine margarine,, in order to give dairy businesses assurances that margarine would not threaten their existence. existence.[5] This legislation actually dated back to 1886, and it was claimed in the law that the real purpose was to target a product that was "injurious "injurious to health health.."[5] While this, if true, would have made margarine a fair target for criminal law, the federal government admitted before the courts that this assessment was simply false. false.[5] Decision Justice Rand, for the Majority, struck down the prohibition on production of margarine on the grounds that it was not valid criminal law. The prohibition on importation of margarine, however, was upheld under the federal Trade and Commerce power. Rand outlined a test to determine if a law falls under the criminal law.  A crime is an act which which the law, with appropriate appropriate penal sanctions, sanctions, forbids; forbids; but as prohibitions prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect  upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or the safeguard the interest threatened. From this, two requirements must be met for a law to be criminal in nature. 1. the law must be a prohibition with a penal sanction; and 2. the law must be directed towards a public purpose. Rand also listed a few objectives that would qualify as legitimate public purposes, namely "Public peace peace,, order, security security,, health, health,morality morality.." The JCPC, in upholding Rand's decision, agreed that in pith and substance, substance, the law was primarily related to property and civil rights, a provincial power.

Reference re Assisted Human Reproduction Act 

Initial reference

The Court of Appeal was asked by the Government of Quebec to answer the following question: “

Are sections 8 to 19, 40 to 53, 60, 61 and 68 of the  Assisted Human Reproduction Reproduction Act , S.C. 2004, c.2, ultra vires the Parliament of Canada in whole or in part under the Constitution Act, 1867 ?

”

The Court ruled in the affirmative in all respects of the question.

Appeal to the Supreme Court

The appeal was allowed in part, with the Court rendering a rare 4-4-1 mixed decision. The justices' opinions were as follows: The McLachlin opinion

The Act is essentially a series of prohibitions, followed by a set of subsidiary provisions for their administration. administration. While the Act will have beneficial effects and while some of its effects may impact on provincial matters, neither its dominant purpose nor its dominant effect is to set up a regime that regulates and promotes the benefits of artificial reproduction. Here, the matter of the statutory scheme, viewed as a whole, is a valid exercise of the federal power over criminal law. The dominant purpose and effect of the legislative scheme is to prohibit practices that would undercut moral values, produce public health evils, and threaten the security of donors, donees, and persons conceived by assisted reproduction. The LeBel/Deschamps opinion

The impugned provisions represent an overflow of the exercise of the federal criminal law power. power. Their pith and substance is connected with the provinces’ exclusive jurisdiction over hospitals, property and civil rights, rights, and matters of a merely local nature. The impugned provisions affect rules with respect to the management of hospitals, since Parliament has provided that the Act applies to all premises in which controlled activities are undertaken. Furthermore, the fact that several of the impugned provisions concern subjects that are already governed by the Civil Code of Quebec and other Quebec legislation is an important indication that in pith and substance, the provisions lie at the very core of the provinces’ jurisdiction over civil rights and local matters. The Cromwell opinion

The matter of the impugned provisions is regulation of virtually every aspect of research and clinical practice in relation to assisted human reproduction. The matter of the challenged provisions is best classified as relating to the establishment, maintenance maintenance and management management of hospitals, property and civil rights in the province and matters of a merely local or private nature in the province. However, ss. 8, 9 and 12 in purpose and effect prohibit negative practices associated associated with assisted reproduction and fall within the traditional ambit of the federal criminal law power. Similarly, ss. 40(1), (6) and (7), 41 to 43, and 44(1) and (4) set up the mechanisms to implement s. 12 and, to the extent that they relate to provisions of the Act which are constitutional, were properly enacted by Parliament. Sections 45 to 53, to the extent that they deal with inspection and enforcement in relation to constitutionally valid provisions of the Act, are also properly enacted under the criminal law power. The same is true for ss. 60 and 61, which create offences. Section 68 is also constitutional, although its operation will be limited to constitutional sections sections of the Act. Given that the other provisions establishing the Assisted Human Reproduction Agency of Canada are not contested, there is no constitutional objection to s. 19.

10. LANGUAGE RIGHTS

Language is not an independent matter of legislation (or constitutional constitutional value). Therefore, there is no single plenary power to enact laws in relation to language. Instead, the power to enact a law affecting language is divided between the two levels of government by reference to criteria other than the impact of the law on language. On this basis, a law prescribing that a particular language language or languages must or may be used in certain situations will be classified for constitutional purposes not as a law in relation to language, but as a law in relation to the institutions or activities that the provision covers. Language is too broad to qualify under pogg which is confined to subjects of legislation that are relatively narrow and specific. Language being not one of the classes of subjects enumerated enumerated by the Constitution Constitution Act, 1867 and is not even an independent “matter” “matter” or constitutional constitutional value, constitutes constitutes an indirect protection of minority  language rights Rule in Divergence:

Where there is divergence between the two language versions, that meaning should be selected that is compatible with both versions. However, the meaning selected must be reasonable in the context of the stature. If one language version gives better effect to the purpose of the statute, then that version should be selected, even if a narrower meaning would be common to both versions. Incorporation by reference

Where a statute makes reference to another document, so as to incorporate (or adopt) the document as part of the statute, then the general rule is that, if there is a constitutional requirement that the incorporating statute be in both languages, then the requirement that the incorporating statute be in both languages, then the requirement will apply to the incorporated document as well. However, where a statute refers to an extrinsic document that is not essential to the operation of the statute, so that the document is not an “integral part” of the statute, then there is no “true incorporation”, and the document would not be subject to the requirement of bilingual biling ual texts. Subject to section 133: Only regulations made by the “Government” (Lieutenant Governor, the Executive Council and Ministers) and regulations which, although made by officials or bodies outside of Government; also, court rules of  practice: these rules, although made by the judges not the government; and rules of administrative  judicial” . Except regulations which were neither made by the tribunals whose functions were “quasi“ quasi- judicial”  Government nor subject to approval by the government; government; by-laws of local municipalities municipalities and school

boards, even if they were subject to the approval of the government; government; Re Manitoba Language rights: Section 23 applied only to “instruments of a legislative nature”. Such instruments must have the following characteristics: characteristics: 1. it would would establish a “rule of conduct” 2. it would have the “force of law”

3. it would be “of general application rather than directed at specific individuals or situations” Language rights were “based on political compromise”; this distinguished them from lega l rights, which “tend to be seminal in nature because they are rooted in principle”; Language rights, like other rights,

must receive a “liberal and purposive interpretation” 

Section 93 Constitution Act 1867 confers upon the provincial legislatures the power to make laws in relation to education, but it prohibits the legislatures from prejudicially affecting rights or privileges with respect to denominational (or separate) schools existing by law at the time of confederation Section 23 confers upon “citizens of Canada” who are members of the English-speaking English-speaking minority in Quebec or the FrenchFrench-speaking speaking minority in the other provinces “the right to have their children receive primary and secondary school instruction in [the minority] language in that province” . Three categories: categories: (1) the mother tongue of the parent (2) the language of primary school instruction in Canada of the parent (3) the language instruction instruction in Canada of one o ne child of the parent  Applies to denomination and non-denominational non-denominational schools Mother tongue – tongue – first language learned and still understood Canada Clause – Clause – language of primary instruction in Canada of the parent NOT ABSOLUTE RIGHT 

Limited to “wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction”

The Manitoba Act, originally titled An Act to amend and continue the Act 32-33 Victoria, chapter 3; and to establish and provide for the Government of the Province of Manitoba , is an act of  the Parliament of Canada that is defined by the Constitution Act, 1982 [1] as forming a part of  the Constituti Constitution on of Canada Canada.. The act, which received the royal assent on May 12, 1870, created the province of Manitoba of Manitoba and continued in force force An  An Act for for the Temporary Temporary Government Government of Rupert's Land  [2] and the North-Western Territories when united with Canada upon the absorption of  the British territories territories of Rupert's of Rupert's Land and the North-Western Territory into Canada on July 15, 1870. Background The act was adopted by Parliament in response to the Métis Métis'' concerns of the provisional government government led by Louis Riel. Riel. Riel was a major influence on the Manitoba Act since it was based on his list of rights. The Red River colony and its surroundings would become the province of Manitoba, which was a tiny area around the Red River Colony. Unlike other provinces, however, Manitoba would have its land and other resources initially controlled by Ottawa. In a victory for the Métis, the act guaranteed that they would receive title for the lands they already farmed and 1,400,000 acres (5,700 km 2) of farmland for the use of their children. The act also set aside land for the Métis, with each family receiving scrip, a certificate, saying they owned 96 hectares of land, amount to a total of about 560,000 hectares (5,600 km 2). In order to receive scrip for children living or deceased, proof of birth in Manitoba prior to 1871 was required, such as a baptismal or death certificate from the church or a letter from an employer such as the Hudson's Bay Company. The 1.4 million acres was not enough for the number of applications and

the government gave money, the equivalent value of $1 per acre which was current land value at that time; for example the head of a household would receive $160 in lieu of a quarter section. As a result of the settlement, however, Macdonald convinced the British to send a military expedition to Manitoba, led by Colonel Wolseley. White settlers poured into the province, and the Métis were kept waiting for their land grants. Many Métis fled to Saskatchewan, and Louis Riel fled to the United States. The act contained religious and language rights, namely rights to denominati denominational onal schools schools,, to laws in both French and English English,, and to use either English or French in the Legislature of Manitoba and any courts established by either Canada or the Province. Province.[3] This has led to political controversy, however, including the Manitoba Schools Question in the nineteenth century, as denominational school rights were curtailed. The legislature also enacted English-only laws later found unconstitutional by the Supreme Court of Canada in the case Reference re Manitoba Language Rights (1985). Under the act, Manitoba could send four members to the House of Commons in Ottawa and two members to the Senate Senate.. Validity of the Manitoba Act  Following the enactment of the Manitoba Act , questions arose whether the federal Parliament had the constitutional authority to create new provinces by ordinary federal statute. To eliminate any uncertainty on this point, the Imperial Parliament enacted the Constitution Act, 1871, 1871 , which confirmed that the federal Parliament had the power to establish new provinces and provide for their constitutions. constitutions.[4] Section 23, Manitoba Act, 1870: Either the English or the French language may be used by any person in

the debates of the Houses of the Legislature and both those languages shall be used in the respective Records and Journals of those Houses; and either of those languages may be used by any person, or in any Pleading or Process, in or issuing from any Court of Canada established under the Constitution Act, 1867 , or in or from all or any of the Courts of the Province, The Acts of the Legislature shall be Printed and published in both those languages. Section 133, Constitution Act, 1867: Either the English or the French Language may be used by any

Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of  Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of  Quebec. The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages. (67)

11. ABORIGINAL AND TREATY RIGHTS Main reasons for s 91(24) [conferring upon the Federal parliament the power to make laws in relation to “Indians, and lands reserved for the Indians” (1) protection of the aboriginal peoples against local settlers (2) maintain uniform national policies respecting the Indians

Indian— Indian—traces status from particular bands whose charter members were normally determined at the time of the establishment of a reserve or the making of a treaty. The status then devolves from these charter members to their descendants. Persons within the statutory definition of the Indian act are known as “status Indian”. They alone enjoy the right to live on Indian reserves and various Indian Act privileges Metis—originated in the west from intermarriage between French Canadian men and Indian women Metis— during the fur trade period received “half breed” land grants in lieu of any right to live on reserves, and were accordingly excluded from the charter group from whom Indian status devolved Inuit or Eskimo— Eskimo —outside of the reserve system and not covered by the Indian Act definition; held to be “Indians” within the meaning of s 91(24) Royal Proclamation of 1763— 1763 —set aside reserves for Indians, that is, all lands within the territory covered by the Proclamation that was in possession of the Indians and that had not been ceded to the Crown; lands held pursuant to aboriginal title  As a general rule, provincial provincial laws apply to Indians and lands reserved for the Indians Indians so long as the law is in relation to a matter coming within a provincial head of power: Except, (1) Singling out—a provincial law that singled out Indians or Indian reserves for special treatment would be invalid law for being classified as law relating to Indians or Indian reserves (2) Indianness—an integral part of primary federal  jurisdiction over Indians and lands reserved reserved for the the Indians even though of general application that that is otherwise within provincial competence (precluding laws that impair the “status or capacity” of  “Indians”, or that affect “Indianness”); “Indianness”); provincial laws cannot affect aboriginal rights or treaty rights. Nor can provincial laws affect Indian status (3) paramountcy—provincial laws apply to Indians and lands reserved for the Indians. If a provincial law is inconsistent with a provision of the Indian Act, the provincial law is rendered inoperative (4) Natural Resources Agreements —right of Indians to take game and fish for food, which is defined and protected in the three prairie provinces provinces by the “Natural Resources Agreements” (5) Section 35, Constitution Act, 1982 [aboriginal and t reaty rights]—provincial laws of general application must yield to the terms of any treaty Aboriginal Rights— Rights—(1) that which have not been extinguished are recognized by the common law and are enforceable by the courts; (2) a legal right derived from the Indians’ historic hi storic occupation and possession of their tribal lands; (3) are rights held by aboriginal peoples, not by virtue of Crown grant, legislative or treaty, but “by reason of the fact that aboriginal peoples were once independent, self governing entities in possession possession of most of the lands now making up Canada” Test: element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right—in right—in order for a practice to be “integral”, the practice must be “of central significance” s ignificance” to the aboriginal society: it must be a “defining” characteristic of the society, “one of the things that made the culture of the society distinctive”. distinctive”. The practice must be developed before “contact” of the aboriginal people with the Europeans

Provincial laws cannot affect aboriginal rights or treaty rights or Indian status; could not legislate to extinguish or alter aboriginal rights, and could not confer on an administrative tribunal tribunal power to extinguish or alter aboriginal rights but an administrative tribunal can adjudicate or determine as a matter of law whether a claimed right existed though the finding is not a precedent and would be subject to judicial review R. v. Van der Peet , [1996] 2 S.C.R. 507 is a leading case on aboriginal rights under undersection 35 of 

the Constitution Act, 1982. 1982 . The Supreme Court held that aboriginal fishing rights did not extend to commercial selling of fish. From this case came the Van der Peet test for determining if an aboriginal right exists. This is the first of three cases known as the Van der Peet trilogy which included R. v. N.T.C. Smokehouse Ltd. and R. v. Gladstone. Gladstone. Dorothy Van der Peet, a member of the Stó:lō Nation, was charged for selling salmo n that Steven and Charles Jimmy (Charles being her common-law husband) had lawfully caught under the native food fish licence but was forbidden from selling. At trial, the judge held that the aboriginal right to fish for food and ceremonial purposes did not extend to the right to sell fish commercially. A summary appeal judge overturned the verdict, but it was subsequently overturned overturned at the Court of Appeal. The issue before the Court was whether the law preventing sale of the fish infringed Van der Peet's aboriginal rights under section 35. Opinion of the Court In a seven to two decision, the Court upheld the Court of Appeal's decision. In order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right." right. "[1] The exchange of fish for money or other goods did not constitute a practice, custom or tradition that was integral to Sto:lo culture. The Court developed an "Integral to a Distinctive Culture Test" to determine how to define an Aboriginal right as protected by s.35(1) of the Constitution Act, 1982. The Test has ten main parts: 1. Courts must take into account the perspective of aboriginal peoples themselves 2. Courts must identify precisely the nature of the claim being made in determining whether an aboriginal claimant has demonstrated the existence of an aboriginal right 3. In order to be integral a practice, custom or tradition must be of central significance to the aboriginal society in question 4. The practices, customs and traditions which constitute aboriginal rights are those which have continuity with the practices, customs and traditions that existed prior to contact 5. Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims 6. Claims to aboriginal rights must be adjudicated on a specific rather than general basis 7. For a practice, custom or tradition to constitute constitute an aboriginal right it must be of independent independent significance to the aboriginal culture in which it exists 8. The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice, custom or tradition be distinct 9. The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because because of that influence.

10. Courts must take into account both the relationship of aboriginal peoples to the land and the distinctive societies and cultures of aboriginal peoples Criticism Canadian Aboriginal Law scholar John Borrows writes: "With this test, as promised, Chief Justice Antonio Lamer has now told us what Aboriginal means. Aboriginal is retrospective. retrospective. It is about what was, 'once upon a time,' central to the survival of a community, not necessarily about what is central, significant, and distinctive to the survival of these communities communities today. His test has the potential to reinforce troubling stereotypes about Indians." Indians. "[2] The Supreme Court’s ruling and t he subsequent adoption of the Van der Peet test are regarded as

 problematic by critics who point out that, that, by further further defining Aboriginal Aboriginal rights, rights, the test test circumscribes circumscribes the 2 scope of Aboriginal rights as set out by the previous test outlined in R. v. Sparrow. Some critics view this as enabling the Crown to extinguish rights at the point of definition. Critics of the Van der Peet test also point out that the test situates Aboriginal cultural cultural practices in the  past. Critics Critics argue that both both the ruling ruling and the test test rely on the notion that that Aboriginal cultures and  traditions are static and unchanging, and ignore the inherently dynamic, adaptive nature of culture. Legal experts and Aboriginal leaders have further criticised the court system for being ethnocentric, and   failing to apply apply the same criteria to non-Aboriginal non-Aboriginal populations. populations.3 To do so would mean that only precontact European practices, for example, would be considered integral to Euro-Canadian culture.

Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, 1010 , also known as Delgamuukw vs. the Queen is

decision of the Supreme Court of Canada where the Court expressly and explicitly declined to make any definitive statement on the nature of aboriginal of  aboriginal title in Canada. The Court held at paragraphs 74, 75 and 77 that, [74] "I reject the submission with respect to the substitution of aboriginal tile and selfgovernment for the original claims of ownership and jurisdiction … [75] The content of common law aboriginal title, for example, has not been authoritatively au thoritatively determined by this Court … The relevance of the case for aboriginal title derives from what the Chief Justice Lamer ruled in a dialogue from the Bench with counsel Bruce Clark appearing on a preliminary objection to the Court's territorial jurisdiction based upon the Indian Tribe's unsurrendered territorial sovereignty. The Court Transcript finds the Chief Justice saying, “If you had decided to initiate or if you decide tomorrow morning to initiate in the Supreme Court of British Columbia an action for declaratory relief relief saying that the British Columbia courts have no jurisdiction, that is a different matter matter and you could be arguing to the judge that, well, this is an issue that has never been tried.… There is no doubt that it is a constitutional constitutional issue. … Is that all you have to say on the constitutional question?” question?”[1] For these reasons the precedent value of the Delgamuukw is Delgamuukw  is that the constitutional question of the paramountcy over a Crown Government’s Government’s and Court’s jurisdiction of an Indian Tribe’s territorial sovereignty pending proof of a surrender, by treaty, is a legitimate and outstanding constitutional question that this Court has never decided, because it has never been tried. Aside from that, the Court expressly and explicitly refused to decide anything of precedent value regarding the Indian constitutional interest. interest. Court proceedings

The proceedings were started in 1984 by the Gitksan and the Wet'suwet'en Nation. Nation. They bypassed the slow Federal Land Claims process in which the British Columbia Provincial Government would not participate. They claimed ownership and legal jurisdiction over 133 individual hereditary territories, a total of 58,000 square kilometres of northwestern British Columbia, Columbia, an area larger than the province of Nova of Nova Scotia. Scotia. The Gitksan and Witsuwit'en used their oral histories as principal evidence in the case. Provincial government position The Crown of British Columbia insisted that all First Nations land rights in British Columbia were extinguished by the colonial government before it became part of Canada of  Canada in 1871. Moreover, Chief  Justice Allan McEachern ruled that aboriginal rights in general existed at the "pleasure of the crown" and could thus be extinguished "whenever "whenever the intention of the Crown to do so is clear and plain." (In the Court of Appeal, the Province changed its position to argue that aboriginal land rights had not been extinguished.) extinguished.) Under his reasoning, the Aboriginal title and Aboriginal right of self-government claimed by the plaintiffs had been erased over a century previously, previously, and as such were precluded from qualifying as "existing" rights under subsection 35(1) of the Constitution Act, 1982. His ruling was seen by many as seriously at odds with Supreme Supreme Court of Canada rulings dealing with constitutional Aboriginal Aboriginal and treaty rights, and was also criticized for its apparent bias in both tone and analytic approach. approach.[2]. Justice McEachern found that the "broad concepts embodied in oral tradition, tradition, did not conform to juridical [3] definitions of truth," truth," stating: "I am unable to accept adaawk, kungax and oral traditions as reliable bases for detailed history but they could confirm findings based on other admissible evidence." evidence."[4][5] Although these courtroom proceedings established the precedent of First Nations presenting their claims to land through the use of  oral tradition, tradition, Justice McEachern ruled that oral tradition could not stand on its own as historical evidence. In order to bear an impact on the proceedings it must be supported by forms of evidence recognized recognized by the court. Supreme Court ruling The Supreme Court made no decision on the land dispute, insisting that another trial was necessary. Specifically, [at paragraph 74 of the Court's decision] the Court held, "I reject the submission with respect to the substitution of aboriginal title and the self-government self-government for the original claims of  ownership and jurisdiction… jurisdiction….[paragraph 75] The content of common law aboriginal title, for example, has not been authoritatively determined by this Court...[paragraph 77] This defect in the pleadings prevents this Court from considering the merits of this appeal." The legal significance of those passages is that the Indian "Interest" within the meaning of section 109 of  the Constitution Act, 1867, was not involved in the appeal. Section 109 is the section that says the Crown's CONSTITUTIONAL "Interest" is subject to the Indian CONSTITUTIONAL "Interest" so long as the Indian "Interest" has not been sold to the Crown by a valid treaty. It confirms that Indian sovereignty, i.e., exclusive jurisdiction jurisdiction and sole possession, is the supreme law of the land pending treaty and, correspondingly, establishes the utter irrelevance of Crown Parliamentary legislation and Crown court recent inventions based upon the "common law". It has been said that "The ruling also made important statements statements about the legitimacy of  Indigenous oral history ruling that oral histories were just as important as written testimony.

[6]

.

It has been claimed that the case was improperly framed by the lawyers who filed the case and it decided nothing nor could it have decided anything anything[7].

Aftermath The Delgamuukw court case has important implications for the history of Canada and for the idea of  history itself. In this case the court gave greater weight to oral history than to written evidence. Of oral histories the court said "they are tangential to the ultimate purpose of the fact-finding process at trial -the determination of the historical truth." In A In A Fair Country  Country , John Ralston Saul writes about the broader significance of the court's recognition of  oral evidence as carrying as much or greater weight as written evidence, on Canadian society. The only legal difficulty with Saul's perception is that oral history is not relevant to the definition of the Indian Tribes' constitutional interest, that being determined by the paramountcy clause section 109 of  the Constitution Act, 1867, as settled by the precedents St Catherine's Milling and Lumber Co. v. The Queen, Queen,[8] and Attorney and Attorney General General of Canada Canada v. Attorney Attorney General of Ontario: In re Indian Indian Claims, Claims, [9] Those cases held the Indian constitutional "Interest" "Interest" is paramount over the Crown's constitutional "Interest" until surrendered by treaty, that being the legal consequence of the treaty process in Canada.

Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 is the leading Supreme Court

of Canada decision on the Crown duty to consult Aboriginal groups prior to exploiting lands to which they may have claims. Background In 1961 the provincial government of British of  British Columbia issued a "Tree Farm Licence" (TFL 39) over an area of land to which the Haida Nation claimed title. This title had not yet been recognized at law. The Haida Nation also claimed an Aboriginal right to harvest red cedar in that area. In 1981, 1995, and 2000 the Minister replaced TFL 39; in 1999 the Minister authorized a transfer to Weyerhauser Co. These actions were performed unilaterally, without consent from or consultation with the Haida Nation. The Haida Nation brought a suit, requesting that the replacement replacement and transfer be set aside. The chambers judge found that the Crown was under a moral – moral  – but not legal – legal – duty to negotiate with the Haida Nation. The British Columbia Court of Appeal reversed this decision, deciding that both the Crown and Weyerhauser Co. are under legal obligations to consult with Aboriginal groups whose interests may be affected. Judgment of the Court Chief Justice McLachlin McLachlin,, writing for a unanimous court, found that the Crown has a "duty to consult with Aboriginal peoples and accommodate their interests". interests" .[1] This duty is grounded in the honour of the Crown, and applies even where title has not been proven. The scope of this duty will vary with the circumstances; the duty will escalate proportionately to the strength of the claim for a right or title and the seriousness of the potential effect upon the claimed right or title. However, regardless of what the scope of the duty is determined to be, consultation must always be meaningful. Where there is a strong prima strong  prima facie case for the claim and the adverse effects of the government's proposed actions impact it in a significant (and adverse) way, the government may be required to accommodate. This may require taking steps to avoid irreparable harm or minimize the effects of the infringement. Both sides are required to act in good faith throughout the process. The Crown must intend to substantially address the concerns of the Aboriginal group through meaningful consultation, and the Aboriginal group must not attempt to frustrate that effort or take unreasonable positions to thwart it.

On the facts of the case, the Court found that the Haida Nation's claims of title and an Aboriginal right were strong, and that the government's actions could have a serious impact on the claimed right and title. Accordingly, Accordingly, the Crown had a duty to consult the Haida Nation, and likely had a duty to accommodate their interests. The Crown's duty of good-faith consultation does not extend to third parties, and cannot be delegated to them by the Crown. This is not to say that third parties cannot be liable to Aboriginal groups in negligence, or for dealing with them dishonestly. However, it does mean that the legal obligation of  consultation and accommodation is shouldered exclusively by the Crown. Accordingly, the Crown's appeal was dismissed and Weyerhauser Co.'s appeal was allowed.

Aboriginal land v. Non-aboriginal Non-aboriginal land 1. Aboriginal— Aboriginal—pre sovereignty occupation; Non-aboriginal Non-aboriginal— —post sovereignty occupation 2. Uses: Aboriginal  Uses: Aboriginal —exclusive —exclusive use and occupation subject to the limitation that the uses “must not be irreconcilable with the nature of attachments to the land which forms the basis of the particular group’s aboriginal title. Example, lands occupied for hunting purposes could not be converted to strip mining; Non-aboriginal —lack of any comparable restrictions restrictions on a fee simple title except zoning by-laws 3. Aboriginal title— title —inalienable except to the Crown (meaning the Crown has to act as an intermediary between the aboriginal owners and third parties); aboriginal owners must first surrender the land to the Crown in order to pass title to the third party. The Crown then is in fiduciary duty to deal with the land in accordance with the best interest of the surrendering aboriginal people. 4. Aboriginal title can only be held communally, cannot be held by individual aboriginal persons; collective right to land held by all members of an aboriginal nation 5. Aboriginal title is constitutionally constitutionally protected [though not absolute] [any infringement of the right must be enacted by the competent legislative body (parliament) and must satisfy the Sparrow test of   justification] Extinguishment: (1) Surrender (2) Constitutional amendment Treaty— Treaty —an agreement between the Crown and an aboriginal nation with the following characteristics: (1) parties: Crown and Aboriginal nation (2) Agency: authority of the signatories to bind their principals (3) Intention: to create legal relations [binding obligations (4) Consideration: assumed by both sides (5) Formality: “a certain measure of solemnity” Treaty rights, infirmities: (1) precise legal status of the rights (2) doctrine of parliamentary sovereignty — aboriginal rights were vulnerable to change or abolition by the action of the competent legislative body [Federal parliament] (3) liberal idea of equality— equality—suggests that special status might actually be unconstitutional (4) extinguishment thru constitutional amendment and without participation in the decisive phases of the amending process

Sparrow test of justification: in order to be an aboriginal right an activity must be an element of a  practice, custom custom or tradition tradition integral to to the distinctive distinctive culture culture of the aboriginal aboriginal group claiming the right. right.

Provincial law that passed the Sparrow test of justification could not extinguish aboriginal rights. Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies. Those activities do not constitute the right  per se; se; rather, they are parasitic on the underlying title. However, that range of uses is subject to the limitation that they must not be irreconcilable with the nature of the attachment to the land which forms the basis of the particular group’s aboriginal title. This inherent limit, to be explained more fully below, flows from the definition of aboriginal title as a sui generis interest in land, and is one way in which aboriginal title is distinct from a fee simple. Content of aboriginal title: (1) first, that aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of  those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and (2) that those protected protected uses must not be irreconcilable with the nature of the group’s attachment to that land. When precisely does a duty to consult arise? The arise? The foundation of the duty in the Crown’s honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely  affect it  Scope of the consultation required will be proportionate to a preliminary assessment of the strength of  the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.

12. INTERPRETING THE CHARTER RIGHTS AND FREEDOM Charter will never become main safeguard of civil liberties but the democratic democratic character of Canadian political institutions, institutions, independence of the judiciary, and a legal tradition of respect of civil liberties Section 1: The Canadian Charter of Rights and Freedoms guarantee the rights and freedoms set out in it subject only to such reasonable limits prescribed prescribed by law as can be demonstrably demonstrably justified in a free and democratic society Circumstances where the Court grants temporary period of validity to an unconstitutional law: where the immediate striking down of the law (1) would pose a danger to the public, (2) would threaten the rule of  law, or (3) would result in the deprivation of benefits from deserving persons Later, however, the dialogue rationale has supplanted the emergency rationale because the Court prefers the legislature to design appropriate remedy

THERE IS NO POLITICAL QUESTIONS DOCTRINE IN CANADIAN CONSTITUTIONAL LAW Characterization of the challenged law: (1) requires examination of the purpose or effect of the challenged law in order to determine whether it limits a Charter right (2) requires interpretation of the language of the Charter of Rights in order to determine whether it has been abridged by the challenged law If the purpose or effect of the law is to abridge a Charter right, then the law will be unconstitutional; if  the effect is “trivial or insubstantial”, there was no breach of the Charter (a case c ase where a pastor questions the Alberta School Act requiring approval in the form of certificate of efficient instruction as private school, for him to home school his children at his basement because it was contrary to his religion to request the State permission); the Act violates freedom of religion but no breach of the Charter because the effect was only trivial or insubstantial [R v Jones, 1986](?) 1986] (?) But, in the subsequent case of [R v Edward Books and Art, 1986], the Court declared the effect of  Sunday Closing law was not “insubstantial and trivial”. In that case, any retailer who observed Sabbath placed himself or herself at a competitive competitive disadvantage which would exist even if there was no Sundayclosing law. The law removed the disadvantage from those retailers who observed Sunday as their Sabbath, but the preference for Sunday-observers did not affect the practices of non-Sunday observers. Progressive Interpretation— Interpretation—“a living tree capable of growth and expansion within its natural limits”; Charter should receive generous interpretation: to give full effect to the civil liberties that are guaranteed Process-based theory of judicial review —Charter —Charter does not require the courts “to test the substantive

outcomes of the political process against some theory of the right or the good”; rather, the Charter guarantees the integrity of the political process itself by enhancing “the opportunities for public debate and collective deliberation” deliberation” Advantages: (1) it supplies a helpful context for interpreting interpreting particular guarantees (2) offers solution to the problem of the legitimacy legitimacy of judicial review [judges need never take position on controversial substantive issues, because the constitution does not address such issues. All that the judges are concerned with is the fairness of the process by which legislative bodies or other agencies or officials reach their decisions] Proper subject of judicial review: not the wisdom, justice or rightness of the outcomes of the political

process, but the integrity of the process itself  TWO TIERS OF RIGHTS: (1) common rights— rights —subject to override, (2) privileged rights— rights —not subject to override. If the law has the effect of abridging a Charter right, then the Charter is implicated and, if s. 1 does not supply justification, the law will be to that extent invalid When law is challenged on both Federal and Charter grounds, it is the federal ground that is more fundamental of the two, and that ought priority over the Charter ground.

Constitution Act, 1982 came into force on April 17, 1982, and only operates prospectively from that day. A statute (or regulation or by-law or o r other legislative instrument) instrument) which was enacted before that date, and which is inconsistent with the Charter, will be rendered “of no force and effect” by the supremacy of the Constitution Constitution Undeclared rights or freedoms protected by the common law or by statute will continue to exist notwithstanding the Charter. They are not incorporated or “constitutionalized” thus, they can be altered or abolished by the action of the competent legislative body Application to corporation: lately the Court decided two cases finding against the corporation on an equality claim Section 7 includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law; need not be a Canadian citizen; even includes persons who entered Canada illegally Charter applies: (1) to the exercise of statutory authority regardless regardless of whether the actor is part of the government or is controlled by the government. It is the exertion of a power of compulsion granted by statute that causes the Charter to apply (2) action of the federal and provincial governments, including bodies or persons controlled by a government, even if the governmental action was not based on statutory authority “government” includes: action taken by (1) Governor General in Council or the Lieutenant Governor in Council (2) by individual ministers (3) by public servants within the departments of government (4) Crown corporations and public agencies that are outside of departmental structure, but which, by virtue of a substantial degree of ministerial control, are deemed to be “agents” of the Crown Charter applies: (1) to a hospital that does not provide sign-language interpreter for deaf persons because it it is implementing a “specific government policy or program” (2) “agency -shop” provision of  collective bargaining because the employer was an agent of the provincial government [agency shop is a workplace in which all employees are not required to join the union but all employees are required to pay dues to the union] (3) expression that takes place on government-owned government-owned property, such as airports, and street (4) cabinet decision taken under the prerogative to allow the United States to test its cruise missiles in Canada (5) making by a Crown agent of a contract of employment with its employees (6) community college because it was subject to a substantial degree of government control Charter does not apply: (1) “closed“closed -shop” provision in a collective agreement— agreement—between between private employer and the union of its employees, hence private contract [closed-shop is a workplace in which the employer has agreed to hire only members of the union] (2) mandatory retirement policy of a hospital that required its doctors to give up their admitting privileges when they reached the age of 65 (3) university and hospital— hospital—both institutions were sufficiently independent independent of government government Control test— test—whether the government has assumed control of the function

Courts? No No— —on court order [not a governmental action; government does not include courts] [re: union picketing on court injunction; when issued as a resolution of a dispute between private parties, and when based on the common law, is not governmental governmental action to which the Charter applies] Yes— Yes —court incurred delay in resolving the action of the accused to be tried within a reasonable period; injunction issued motu proprio by BC Chief Justice against union members picketing outside the courts [court is acting on its own motion and not at the instance of any private party; motivation is entirely ‘public’ in nature, rather than ‘private’] Common law? Does not apply, or at least those rules of the common law that regulate relationships between private parties If the applicable law is a rule of the common law, law, the Charter does not apply. apply. If, however, the law is a rule of statute of statute law, law, the Charter does apply: apply: the statute supplies the needed element of governmental action Common law action where the Charter applies: (1) police officer exercises common law power to search an accused person as an incident of an arrest (2) Crown prosecutor exercises common law power to adduce evidence of the accused’s insanity, causing the accused to be acquitted but held in custody (3) Crown acts under a prerogative power, for example, authorizing the testing of American cruise missiles on Canadian soil (4) Crown acts under the general common law power, example, by entering into a contract with its employees requiring mandatory retirement or mandatory payment of union dues The common law, though not directly subject to Charter scrutiny where disputes between private parties are concerned, may be modified to bring it into harmony with the Charter; it means indirect application to the common law; Charter regulates relations between government and private persons and not between private persons Extraterritorrial Application— Application —Charter application confined to the legislative bodies and governments of  Canada and the provinces. Decided cases: (1) [R v Cook (1998] interrogation interrogation conducted by Canadian police in New Orleans; the accused was deported to Canada since the crime was committed in Canada; the Court ruled that the statement had been obtained in breach of the Charter (OVERRULED already by R v Hape (2007)] Techniques by which the Charter of Rights is interpreted: (1) Characterization Characterization of laws for the purpose of federalism review— review—the courts attempt to ascertain the “matter” (or “pith and substance”) of a challenged law; then they decide whether the matter comes com es within one of the classes of subjects (heads of power) that are conferred upon the enacting legislative body. In determining the pith and substance of a law, the most important consideration is the purpose of the law. Once the pith and substance of the law has been to be within the powers of the enacting legislative body, it is no objection that the law may have some effect on matters outside the powers of  the enacting legislative body

(2) Characterization Characterization of laws for the purpose of Charter review— review—If the purpose of a law is to abridge a Charter right, then the law will be unconstitutional unconstitutional (unless saved by s.1), even if the purpose of the law was entirely benign and constitutional constitutional

13. APPLICATION OF THE CHARTER RIGHTS AND FREEDOMS

Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295

The appellant transit authorities, the Greater Vancouver Transportation Authority (“TransLink”) and British Columbia Transit (“BC Transit”), operate public transportation transportation systems in British Columbia. They refused to post the respondents’ respondents’ political advertisements advertisements on the sides of their buses on the basis that their advertising policies permit commercial but not political advertising on public transit vehicles. The respondents commenced an action alleging that articles 2, 7 and 9 of the transit authorities’ policies had violated their right to freedom of expression guaranteed by s. 2(b 2( b) of the Canadian Charter of Rights and  Freedoms. Freedoms. The trial judge trial judge dismissed dismissed the action, finding finding that the the respondents’ respondents’ right to freedom of  expression had not been infringed. The majority of the Court of Appeal reversed the trial judgment and declared articles 7 and 9 of the advertising policies to be of no force or effect either on the basis of  s. 52(1) of the Constitution Act, 1982 or on the basis of s. 24(1) of the Charter . Held: The appeal should be dismissed. Both BC Transit and TransLink are “government” “government” within the meaning of s. 32 of the of  the Charter . On the face of the provision, the Charter applies Charter applies not only to Parliament, the legislatures and the government themselves, but also to all matters within the authority of those entities. BC Transit is a statutory body designated by legislation as an “agent of the government” government” and it cannot operate autonomously from the provincial government, since the latter has the power, by means of regulations, to exercise substantial control over its day-to-day activities. Although TransLink is not an agent of the government, it is substantially controlled by a local government entity — the Greater Vancouver Regional District — and is therefore itself a government entity. Since the transit authorities are government entities, the Charter  applies to all their activities, activities, including the operation of the buses they own. Eldridge v. British Columbia (Attorney General) (1997) – Equality – Equality Rights and Services for the Deaf: In

April 1997, the Supreme Court released a landmark case concerning the Charter right to be free from discrimination, discrimination, guaranteed by section 15. 15. The decision established that a government program can discriminate discriminate not only by making distinctions, distinctions, but also by failing to provide a service in a way that accounts for distinctions that already exist in society. As well, it showed that in some situations courts will be willing to force fo rce the government to spend money to ensure that a service does not discriminate. The case dealt with British Columbia’s failure to provide sign language interpreters to the deaf as part of  publicly funded medical care. The Court had to decide whether this failure violated deaf persons’ right to equality. Before addressing that question, however, the Court first had to determine whether the Charter applied to the health care services.

Does the Charter Apply? The Charter only applies to government action such as legislation and

government services. services. Since the provincial legislation that regulates medical care providers did not prohibit hospitals and other medical services from providing sign language interpreters, the Court concluded that the failure to provide this service was not rooted in the legislation .[1] Rather, it was the hospitals and the Medical Services Commission that had decided not to provide this service. The Court therefore had to decide whether the Charter applies to these bodies. In a previous case, the Supreme Court had decided that the Vancouver General Hospital was not a government body, so when it adopted a mandatory retirement policy it was not implementing a government policy. policy.[2] However, in this case the Court concluded that hospitals are implementing a government policy when they provide medical services, so the Charter applies to them when they act in that capacity. capacity.[3] [3]SSimilarly, the Court concluded that the Medical Services Commission implements a government policy and thus is subject to the Charter. Charter.[4] Was There a Violation of the Right to Equality? Having concluded that the decision not to provide sign

language interpreters flows from the hospitals and the Medical Services Commission, and that the Charter applies to that decision, the Court then had to assess whether the decision amounted to discrimination. Here, the Court began by acknowledging that section 15(1) of the Charter prohibits discrimination discrimination on the basis of physical disability. disability.[5] As well, the Court pointed out that disabled persons in Canada have historically been excluded and marginalized marginalized from society. As a result, they tend to have less education, are more likely to be unemployed, and tend to be paid less. less.[6] Deaf persons, the Court pointed out, suffer all of these disadvantages primarily because of barriers in communicating with the hearing population. population.[7] The Court then considered the services provided by the medicare system in British Columbia. As the Court pointed out, on its face the system applies equally to the deaf and hearing populations. In other words, it does not explicitly single out deaf people and treat them differently. However, However, the deaf are less able to benefit from the program because of the lack of sign language interpreters. The claim was therefore that the deaf were suffering “adverse effects” discrimination. discrimination.[8] The Court reiterated its statement from a previous case that at times identical treatment may produce inequality. inequality.[9] As well, the Court pointed out that discrimination can exist even where there is no intention to discriminate. A well-intentioned program can discriminate if its effect is to deny equal protection or benefit of the law. law .[10] This kind of discrimination discrimination is particularly common in cases concerning disability. Governments rarely single out the disabled for discriminatory treatment. Instead, what happens more often is that laws have an unequal impact on the disabled because the laws fail to take into account their unique situation. situation.[11] That was the situation in this case. The Court pointed out that effective communication is central to receiving effective medical treatment. treatment .[12] As a result, failing to provide sign language interpretation meant that the deaf population received lower-quality care than the hearing population. population.[13] Therefore, the government’s failure to account for the already disadvantaged position of the deaf community when it provided medical services to the general population amounted to discrimination discrimination and infringed section 15(1) of the Charter. Charter .[14]

Was This Discrimination Justifiable? Charter rights are not guaranteed absolutely. Rather, once a court

has concluded that a right has been infringed, the government is given the opportunity to try to justify that infringement. In this case, the government tried to justify its failure to provide sign language interpreters on the basis of the cost involved. This argument was rejected by the Court because the estimated cost of providing sign language interpretation “was only $150,000, or approximately 0.0025 percent of the provincial health care budget at the time. ”[15] The government also argued that if they were required to provide sign language interpreters then they could also be required to provide interpreters interpreters for other non-official language speakers, which would dramatically increase health care expenditures. expenditures.[16] The Court also rejected this argument. While not ruling out the possibility that translators may be necessary in other situations, the Court pointed out that it was not entirely clear that deaf persons and non-official language speakers are in the same position and so the argument that such services would also have to be provided was purely speculative. speculative.[17] Having rejected these arguments, the Court concluded that the Charter rights of deaf persons were violated. The Court therefore gave the government six months to ensure that sign language interpreters would be provided in the delivery of medical services where doing so is necessary to ensure effective communication. communication.[18]

Canada (Prime Minister) v. Omar Khadr  – The Crown Prerogative and Charter Rights (2010)

On January 29, 2010, the Supreme Court of Canada decided that the federal government is not required to request the return of Omar Khadr to Canada. Canada .[1] In a rare move, the author of the unanimous decision was “the Court” – not any one judge. At the age of 15, Khadr – Khadr  – a Canadian citizen – citizen – was captured by U.S. forces in Afghanistan. Since 2002 he has been held in Guantanamo Bay, Cuba, awaiting trial on war crimes charges. During 2003, Canadian officials from the Canadian Security Intelligence Service and the Foreign Affairs department questioned Khadr. The conversations were made available to U.S. authorities. In a 2008 decision, the Supreme Court ruled that documents about the questioning must be made available to Khadr. Khadr.[2] [2]His His legal team used the information in those documents to argue that the interrogations interrogations by Canadian officials had violated Khadr’s Charter rights by contributing to his ongoing detention. To remedy this alleged breach of his rights, Khadr asked the courts to order the Canadian government to formally ask the United States to return him to Canada. The Supreme Court first considered whether Khadr’s rights had been violated. After concluding that the government had violated his rights, the Court considered whether it was appropriate to require the government to make such a request. The Rights Violation

Khadr argued that his right to not be deprived of liberty “except in accordance with the principles of  fundamental justice,” justice,” as provided by section 7 of the Charter, was violated. violated.[3] [3]For For this argument to succeed, he had to show that the Charter applied to the government officials who had questioned him (even though the questioning occurred outside Canada), that the questioning contributed contributed to his ongoing detention, and that the detention was not in accordance with the principles of fundamental justice. The Court followed its previous decision about Khadr’s detention and held that the Charter did apply to the officials who questioned him. him.[4] [4]As As well, the Court stated that while the major source of the deprivation of Khadr’s liberty was the United States, it is reasonable to infer that the participation of the Canadian officials has contributed to his ongoing detention. detention.[5] [5]Finally, Finally, the Court ruled that the interrogations interrogations were contrary to the principles of fundamental justice: justice: Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects. suspects.[6]

As the lower courts had done, the Supreme S upreme Court concluded that Khadr’s Charter rights had been violated. violated.[7] [7]IIt then considered what remedy would be appropriate. The Appropriate Remedy In the initial trial, the Federal Court ordered the government to request Khadr’s repatriation from the U.S. to Canada. Canada.[8] On appeal, a majority of the Federal Court of Appeal agreed with this order. order.[9] The Canadian government then brought a final appeal to the Supreme Court, arguing that no court could provide this remedy. The government claimed that courts lack the power to require the executive branch of the government to do anything in the area of foreign affairs. affairs.[10] The Court said it must consider two questions in order to determine whether the remedy that Khadr sought – sought – a repatriation request from Canada to the U.S. government – government – was appropriate. appropriate.[11] First, is the remedy sufficiently connected to the Charter breach? And second, is it inappropriate because such an order to the government would touch upon the Crown prerogative power over foreign affairs? The Court concluded that an order to the government to request Khadr’s return would be sufficiently connected to the Charter breach because the breach had contributed to his ongoing detention. detention .[12] The second question, however, was more complex as it involved the appropriate role of the courts in reviewing foreign affairs decisions. The Crown’s “prerogative power,” the Court noted, “is the ‘residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’. ”[13] The Crown prerogative consists of powers and privileges that the courts have historically accorded to the Crown, and that have not been taken away by Parliament. Parliament.[14] These powers used to be exercised by the reigning monarch, but are now mainly exercised by the executive branch of government. In practice, these decisions are made by the cabinet and individual cabinet ministers, including the Prime Minister. Minister .[15]

Over time, legislation has gradually limited the scope of the prerogative power. Today the main legal source of cabinet ministers’ power is legislation passed by Parliament. In other words, w ords, most of the power in the hands of cabinet is there because laws of Parliament put it there. Still, some powers exercised by cabinet today have their legal source in monarchical authority, authority, not statutes. In this case, the Court confirmed that legislation concerning the powers of the Minister of Foreign Affairs had not eliminated this “residue” of discretionary discretionary power, so the prerogative over foreign affairs remains intact. intact.[16] The Court agreed with the government that the decision not to request the return of Khadr to Canada was an exercise of this prerogative power. power.[17] The Court then considered the role of the courts in reviewing the use of this power. The Court agreed with the government that it is for the executive branch of the government to decide whether and how to exercise its prerogative powers. powers .[18] [18]However, However, it also stated that all government power must be exercised in accordance with the constitution. constitution .[19] This means that the courts have a role in determining whether the exercise of a prerogative power infringes the Charter. Charter .[20] Therefore the Court rejected the government’s argument and concluded that the courts are able to make orders to ensure that the foreign affairs prerogative is exercised within the limits imposed by the constitution .[21] [21]However, However, the Court pointed out that when courts review the exercise of this power they must remain “sensitive to the fact that the executive branch of government is responsible for decisions under this power, and that the executive is better placed to make such decisions within a range of constitutional options.” options.”[22] The courts’ ability to intervene on matters of foreign affairs is therefore a “narrow power.” power.”[23] In this case, the Court concluded that the order granted by the lower courts was not appropriate for two reasons. reasons.[24] First, an order to request Khadr’s return to Canada would give too little weight to the fact that the executive must make foreign- affairs decisions in “complex and ever-changing ever -changing circumstances.” circumstances.”[25] While the Court has been willing to issue specific orders on foreign affairs matters in past cases, Khadr’s case involved different issues. Khadr is not under the control of the Canadian government, it is unclear how effective it would be to make the requested order, and the Court was unable to properly assess what the impact on Canada’s foreign relations would be if Khadr’s return were requested. requested.[26] This case is therefore unlike cases where the Court ruled that the government could not extradite individuals without without assurances that the death penalty would not be imposed. imposed.[27] The second reason the order would be inappropriate was the inadequacy of the record before the Court. Court.[28] [28]The The Court was not aware of any negotiations between Canada and the U.S. that may have taken place, or will take place, concerning Khadr’s situation. situation.[29] [29]The The Court also noted that representations representations in foreign affairs are delicate matters that involve considerations of the appropriate timing of the request, the phrasing of the request, and what to do if a request is rejected .[30] According to the Supreme Court, it would be inappropriate for any court to direct the diplomatic steps that must be taken to address the breaches of Khadr’s Charter rights. rights.[31] Given these concerns about lack of detailed information information and the need to respect the separation of  powers between the courts and the executive, the Court concluded that the proper remedy was to provide a declaration that the government had violated Khadr’s Charter rights. This declaration,

according to the Court, would “provide the legal framework for the executive to exercise its functions and consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.” Charter. ”[32] Canada (Prime Minister) v Khadr (2008)

(i) Does the Charter Apply?  [15] As discussed, CSIS, a Canadian government government organization, interviewed interviewed Mr. Khadr at his prison in Guantanamo Bay and shared the contents of these interviews with U.S. authorities. authorities. Mr. Khadr seeks an order that the appellants be required to disclose to him all documents in the possession of the Canadian Crown relevant to the charges he is facing, for the purpose of his defence. [16] Had the interviews and process been in Canada, Mr. Khadr would have been entitled to full disclosure under the principles in Stinchcombe, which held that persons whose liberty is at risk as a result of being charged with a criminal offence are entitled to disclosure of the information in the hands of the Crown under s. 7 of the Charter. The Federal Court of Appeal applied Stinchcombe to Mr. Khadr’s situation and ordered disclosure. [17] The government argues that this constituted an error, because the Charter does Charter does not apply to the conduct of Canadian agents operating outside Canada. It relies on R. v. Hape, Hape, [2007] 2 S.C.R. 292, 2007 SCC 26, where a majority of this Court held that Canadian agents participating participating in an investigation into money laundering in the Carribean were not bound by Charter constraints Charter constraints in the manner in which the investigation was conducted. conducted. This conclusion was based on international law principles against extraterritorial enforcement of domestic laws and the principle of comity which implies acceptance of  foreign laws and procedures when Canadian officials are operating o perating abroad. [18] In Hape, Hape, however, the Court stated an important exception to the principle of comity. While not unanimous on all the principles governing extraterritorial extraterritorial application of the Charter , the Court was cannot be used to justify Canadian participation in activities of a united on the principle that comity cannot  foreign state or its agents that are contrary to Canada’s international international obligations. obligations. It was held that the deference required by the principle of comity “ends where clear violations of international law and   fundamental human rights begin”  begin” (Hape, Hape, at para. 52, per  52,  per LeBel LeBel J.; see also paras. 51 and 101). The Court further held that in interpreting the scope and application of the Charter , the courts should seek to ensure compliance with Canada’s binding obligations under international law (para. 56, per  56, per LeBel LeBel J.). [19] If the Guantanamo Bay process under which Mr. Khadr was being held was in conformity with Canada’s international obligations, the Charter has Charter  has no application and Mr. Khadr’s application for disclosure cannot succeed: Hape. Hape. However, if Canada was participating in a process that was violative of  Canada’s binding obligations under international law, the Charter applies Charter  applies to the extent of that participation. [20] At this point, the question becomes whether the process at Guantanamo Bay at the time that CSIS handed the products of its interviews over to U.S. officials was a process that violated Canada’s binding obligations under international law. [21] Issues may arise about whether it is appropriate for a Canadian court to pronounce on the legality of the process at Guantanamo Bay under which Mr. Khadr was held at the time that Canadian officials participated in that process. We need not resolve those issues in this case. The United States Supreme

Court has considered the legality of the conditions under which the Guantanamo detainees were detained and liable to prosecution during the time Canadian officials interviewed interviewed Mr. Khadr and gave the information to U.S. authorities, between 2002 and 2004. With the benefit of a full factual record, the United States Supreme Court held that the detainees had illegally been denied access to habeas corpus and that the procedures under which they were to be prosecuted violated the Geneva Conventions. Conventions. Those holdings are based on principles consistent with the Charter and Charter and Canada’s international law obligations. In the present appeal, this is sufficient to establish violations of these international law obligations, to which Canada subscribes. [22] In Rasul v. Bush, Bush, 542 U.S. 466 (2004), the United States Supreme Court held that detainees at Guantanamo Bay who, like Mr. Khadr, were not U.S. citizens, could challenge the legality of their detention by way of the statutory right of habeas of habeas corpus provided for in 28 U.S.C. § 2241. This holding necessarily implies that the order under which the detainees had previously been denied the right to challenge their detention was illegal. In his concurring reasons, Kennedy J. noted that “the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status” (pp. 487-88). 487 -88). Mr. Khadr was detained at Guantanamo Bay during the time covered by the Rasul decision, Rasul decision, and Canadian officials interviewed him and passed on information to U.S. authorities during that time. [23] At the time he was interviewed by CSIS officials, Mr. Khadr also faced the possibility of trial by military commission pursuant to Military Commission Order No. 1. In Hamdan v.Rumsfeld , 126 S. Ct. 2749 (2006), the United States Supreme Court considered the legality of this Order. The court held that by significantly departing from established military justice procedure without a showing of military exigency, the procedural rules for military commissions violated both the Uniform Code of Military Justice (10 U.S.C. § 836) and Common Article 3 of the Geneva Conventions. Conventions. Different members of the majority of the United States Supreme Court focused on different deviations from the Geneva Conventions and the Uniform Code of Military Justice. But the majority was unanimous in holding that, in the circumstances, circumstances, the deviations were sufficiently significant to deprive the military commissions of  the status of “a regularly constituted constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”, as required by Common Article 3 of the Geneva Conventions. Conventions. [24] The violations of human rights identified by the United States Supreme Court are sufficient to permit us to conclude that the regime providing for the detention and trial of Mr. Khadr at the time of  the CSIS interviews constituted a clear violation of fundamental human rights protected by international law. [25] Canada is a signatory of the four Geneva Conventions of 1949, which it ratified in 1965 (Can. T.S. 1965 No. 20) and has incorporated into Canadian law with the Geneva Conventions Act , R.S.C. 1985, c. G-3. The right to challenge the legality of detention by habeas corpus is a fundamental right protected both by the Charter and Charter  and by international treaties. It follows that participation in the Guantanamo Bay process which violates these international instruments would be contrary to Canada’s binding international obligations. [26] We conclude that the principles of international international law and comity that might otherwise preclude application of the Charter to Charter to Canadian officials acting abroad do not apply to the assistance they gave to U.S. authorities at Guantanamo Bay. Given the holdings of the United States Supreme Court, the Hape comity concerns that would ordinarily justify deference to foreign law have no application here. The effect of the United States Supreme Court’s holdings is that the conditions under which Mr. Khadr was held and was liable for prosecution were illegal under both U.S. and international international law at the time

Canadian officials interviewed Mr. Khadr and gave the information to U.S. authorities. Hence no question of deference to foreign law arises. The Charter bound Charter bound Canada to the extent that the conduct of  Canadian officials involved it in a process that violated violated Canada’s international international obligations.

14. OVERRIDE OF RIGHTS Charter of Rights Section 33: (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Parliament or a legislature of a province may re-enact a declaration made under subsection (1). (5) Subsection (3) applies in respect of a re-enactment made under subsection (4). Section 33 applies only to: Section 2— fundamental freedoms; freedoms; ss 7 to 14—legal rights; s 15—equality  rights; Does not apply to: ss 3 to 5 —the mobility rights; s 6 —language rights; ss 16 to 23—enforcement   provisions; s 24—sexual equality rights Judicial Review: (1) the declaration must be confined to the rights specified under s 33; (2) it must be specific as to the statute that is exempted from the Charter, and as to the rights that are overridden; (3) and it may not be given retroactive effect The declaration must refer specifically to the Charter provision that is to be overridden. The override power, if exercised, would remove the statute containing the express declaration from the reach of the Charter provisions referred to in the declaration without the necessity of any showing of  reasonableness or demonstrable demonstrable justification. Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 is a landmark Supreme Court of Canada decision

in which the Court struck down part of the Charter of the French Language, Language, commonly known as Bill 101.. This law had restricted the use of commercial signs written in languages other than French 101 French.. The court ruled that Bill 101 violated the freedom of expression as guaranteed in the Canadian Charter of  Rights and Freedoms. Freedoms. In the Ford case, it was argued that the declaration should refer to the very right  that was infringed by the particular Act in which the declaration appeared. That argument would have been fatal to the standard form of declaration that was in issue in that case. That declaration referred to “the provisions of sections 2 and 7 to 15 of the Constitution Act, 1982”, which is, of course, a reference to

all of the Charter rights that s 33 makes vulnerable to the override. The Supreme Court held that this omnibus reference to the rights was sufficient. It was not reasonable to require a reference that was  particular to the statute containing the declaration, declaration, because a legislative legislative body “might not be in a

 position to judge judge with any any degree of certainty certainty what provisions of the Charter might be successfully  successfully  invoked against various aspect of the Act in question”. For this reason, a legislative body “must be

 permitted in a particular case case to override override more than one provision of the Charter Charter and indeed all all of the  provisions which it is permitted to override override by the terms of s 33. Nor did the word “expressly” in s 33

require that the Charter rights be identified in words (such as freedom of expression). expression). A reference to the numbers of the sections of the Charter was “sufficiently express” . As to retroactive retroactive application application of the law, the Court held that the normal presumption AGAINST retroactivity should be applied to the language of s 33, and the section should be construed as permitting “prospective derogation only”. So that Bill 62 is unconstitutional. The derogation of rights therefore came into force on June 23, 1982, the date of the enactment, not on April 17, 1982, the date stipulated in the Bill which is also the date the Charter of Rights came into force.

omnibus reference of override— override—constitutional; constitutional; retroactivity retroactivity—unconstitutional

15. LIMITATION OF RIGHTS

Section 1 guarantees the rights and freedoms set out in the Charter subject to “such reasonable limits  prescribed by law law as can be demonstrably justified in a fr ee and democratic society”  Stages of judicial review: (1) the court must decide whether the challenged law has the effect of limiting one of the guaranteed rights. If yes, then— then —(2) the court must then decide whether the limit is a reasonable one that can be demonstrably justified in a free and democratic society The underlying values of a free and democratic society both guarantee the rights in the Charter and, in appropriate circumstances justify limitation upon those rights. What are these values? (1) respect for the inherent dignity of the human person, (2) commitment to social justice and equality, (3) accommodation accommodation of a wide variety of beliefs, (4) respect for cultural and group identity (5) and faith in social and political institutions which enhance the participation of individuals and groups in society Burden of proof: all elements of the breach of a Charter right rests on the person asserting the breach. Rights that are qualified by their own terms, for example, by requirements of unreasonableness or arbitrariness, or whatever else is part of the definition of the right, rests on the person asserting the breach. The government has the burden of proving the justification of the breach; standard of proof: “the civil standard, namely, proof namely, proof by preponderance preponderance of probability  probability ”. ”. The criminal standard of proof beyond reasonable doubt would be too onerous, given the vagueness of the controlling concepts of  reasonableness, justifiability justifiability and free and democratic society, but “t he he preponderance of probability  must be applied vigorously”.

Presumption of constitutionality— constitutionality—Legal consequences: (1) court should exercise restraint in judicial review, striking down the law only if it clearly offends constitutional restrictions restrictions on the power po wer of the enacting Parliament or Legislature (2) where the validity of a law turns on a finding of fact [for example, the existence of an emergency], that finding of fact need not be proved strictly by the government; it is sufficient that there be a “rational basis” for the finding (3) where the law is open to two interpretations, under one which it would be unconstitutional, and under the other of which it would be constitutional, the latter interpretation interpretation should be selected [“Reading down”] In Charter cases, cases, there is no presumption of constitutionality except under “reading down”

An act that is not legally authorized can never be justified under s 1, no matter how reasonable or demonstrably justified it may appear. Example (1) charter violations that take place on the initiative of a police officer acting without clear legal authority (2) customs officials on homosexual homosexual discrimination Prescribed by law, two requirements: (1) the law must be accessible to the public [accessibility] (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it, and to provide guidance to those who apply the law [precision] Two types of statutory conferrals: conferrals: (1) statute that expressly or by necessary implication implication authorized a decision that would infringe a Charter right (2) statute that conferred a discretion in language that was apparently broad enough to encompass decisions infringing a Charter right, although the language did not expressly or by necessary implication authorize infringements infr ingements of the Charter [should be “read down”] Void for vagueness— vagueness—Reasonable and demonstrably justified, criteria (Oakes test): (1) Sufficiently important objective: the law must pursue an objective that is sufficiently important to justify limiting a Charter right (2) Rational connection: the law must be rationally connected to the objective (3) Least drastic means: the law must impair the right no more than is necessary the objective (4) Proportionate effect: the law must not have a disproportionately severe effect on the persons to whom it applies Three rules (from Big M): M): (1) an objective cannot provide the basis for s 1 justification if the objective is incompatible with the values entrenched by the Charter of Rights. The religious objective of compelling the observance of a Christian Sabbath was incompatible with the guarantee of freedom of religion (2) an objective is ultra vires the enacting legislative body on federal distribution of powers grounds (3) an objective cannot provide the basis for s 1 justification if the objective did not in fact cause the enactment of the law [shifting objectives] Essence of rational connection: causal relationship between the objective of the law and the measures enacted by the law Cases that failed the less drastic means test: (1) the Criminal Code’s felony -murder rule— rule—too drastic a means of discouraging the use of weapons by criminals (2) Quebec’s prohibition of the use of English in commercial sigs (3) Alberta’s rule prohibiting Alberta lawyers from entering into p artnership with lawyers not resident in Alberta (4) Alberta’s prohibition of the publication of accounts of matrimonial litigation (5) Ontario’s prohibition on advertising by dentists (6) a federal ban on all advertising of  tobacco products (7) a board inquiry order that a person employed in a non-teaching position by a school board must be fired if he continues his dissemination dissemination of anti-semitic ideas (8) restricting spending in referendum campaigns to those affiliated with an official Yes committee committee or No committee— committee—a means of equalizing the financial resources available to both sides of the campaign (9) prohibiting the publication of opinion polls in the final three days of an election campaign— campaign—protecting voters from inaccurate information information (10) prohibiting the peaceful distribution of leaflets by a striking union at sites not involved in the labour dispute— dispute—of minimizing disruption to businesses not involved in the dispute

Presumption Presumption of a person as a driver of a vehicle if he occupies the driver’s seat for purposes p urposes of drunk driving offence— offence—reverse onus [a minimal interference interference with the presumption of innocence] Prohibition of union members from picketing the courts of BC —a picket line ipso facto impedes public access to justice; the injunction limited freedom of expression by the least drastic means because the union was free to picket workplaces other than the courts Extradition of a Canadian citizen to the US— US—infringed the right under s 6 of the Charter, but the objective of suppressing crime was sufficiently important to support a limit on the right; requirement of  least drastic means must be applied “flexibly” because there could be procedural or evidentiary reasons why the other country was a preferable forum, he held that the right “is infringed as little as possible, or at the very least as little as reasonably possible” Communicating for the purpose of prostitution— prostitution —limit on freedom of expression that was justified by the objective of eliminating the nuisance of street solicitation; the ban passed the least-drastic-means least-drastic-means test as it is difficult to devise legislative solutions, and the Court’s inability “to second-guess second -guess the wisdom of  policy choices made by our legislators” 5-year disqualification disqualification on a member of a legislative legislative assembly who had been found guilty of a corrupt or illegal practice— practice—upheld; the Court ought not to substitute its opinion as to where to draw a line that is inevitably somewhat arbitrary COURT WAS WILLING TO DEFER TO THE LEGISLATIVE LEGISLATIVE CHOICE ON THE BASIS THAT THE CHOICE WAS WITHIN A MARGIN OF APPRECIATION, APPRECIATION, A ZONE OF DISCRETION IN WHICH REASONABLE LEGISLATORS COULD DISAGREE WHILE STILL RESPECTING THE CHARTER RIGHT —example: where the law is designed

to protect a vulnerable group (children); where the law is premised on complex social-science evidence (about the effect of advertising); where the law deals with “complex social issue” (smoking); where the law reconciles the interest of competing scarce resources Proportionate effect—the effects [that is, the effects of limiting measures] must not so severely trench

on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights; it asks whether the Charter infringement is too high a price to pay for the benefit of the law Application to equality of rights— rights—Citizenship requirement could not be justified under s 1 in the case whether British Columbia’s requirement requirement of Canadian citizenship citizenship as a qualification for admission to the legal profession infringed s 15 of the Charter Application to qualified rights: Charter guarantees the right not to be deprived of life, liberty and security of the person “except in accordance with the principles of fundamental justice”; could a law that violates fundamental justice justice still be upheld under s 1? YES. But only in cases arising out of  exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like Driver stopped by police under the spot-check programme had been arbitrarily detained in breach of s 9 but the Court held that the procedure was justified under s 1. The objective of preventing highway

accidents was sufficiently important important to justify arbitrary detentions, and nothing less than a random stopping procedure would be as effective in detecting and deterring the commission of traffic offenses R v Oakes 2 central criteria [limit is reasonable and demonstrably justified in a free and democratic society]: (1) the objective, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom (2) once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of  proportionality test. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of  individuals and groups. 3 important components of a proportionality test: (1) the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective (2) the means, even if  rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question (3) there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right Charter right or freedom, and the objective which has been identified as of  "sufficient importance". importance". Reverse “onus”—At “onus”—At a minimum, this requires that s. 8 be internally rational; there must be a rational connection between the basic fact of possession and the presumed fact of possession for the purpose of  trafficking. Otherwise, the reverse onus clause could give rise to unjustified and erroneous convictions for drug trafficking of persons guilty only of possession of narcotics; possession of a small or negligible quantity of narcotics does not support the inference of trafficking. In other words, it would be irrational to infer that a person had an intent to traffic on the basis of his or her possession of a very small quantity of narcotics. The presumption required under s. 8 of the Narcotic Control Act is Act is overinclusive and could lead to results in certain cases which would defy both rationality and fairness  Aberta vs Hutterian Hutterian Brethren Brethren

Pressing and Substantial Objectives— Objectives —False licences can be used to gain other fraudulent documentation. The objective, therefore, is to protect the integrity of the licensing system and its consequential benefit is the minimization of the risk of identity theft The requirement of a photograph, coupled with facial recognition software, facilitates the government’s objective of ensuring that that no individual will hold multiple licences under different different names.” The regulations help prevent an applicant from fraudulently obtaining a licence in the name of another person whose photograph is already in the database The “effects [of the infringing measure] measure] must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights” Wilson Colony is about the justifiable limits on constitutional rights and freedoms. Justifying a limit that has been challenged as unconstitutional unconstitutional first requires that it be (1) “prescribed by law“; The Court said that regulations “are the life blood of the administrative state and do not imperil the rule of law.”

Therefore the impugned regulation is “prescribed by law.” law. ”[5] (2) The second step in justifying a challenged law is that it must be “demonstrably justified in a free and democratic society.” society.” This  justification is achieved by demonstrating demonstrating “proportionality” [Oakes test] i.e. (a) rational connection (b) minimal impairment, and (c) balancing the negative and positive effects of the law [effects of the regulation are proportionate] proportionate]

Hill v Church of Scientology Scientology (1995)— (1995) —the Court held through Cory J. that it was not appropriate to apply the “traditional s 1 analysis” in cases where the Charter was not directly applicable. Instead, he said, there should be a “more flexible” balancing of of the competing values, and the onus rested with the Charter claimant to persuade the Court that the common law should be modified. He concluded that the law of defamation struck an appropriate balance between the Charter value of freedom of expression and the non-Charter (but important) value of personal reputation; therefore, there was no need to modify the common law.

16. FREEDOM OF CONSCIENCE AND RELIGION 

Section 15. (1) Every individual is equal before and under the law and has the right to the equal  equ al   protection and equal benefit of the law without without discrimination discrimination and, and, in particular, particular, without discrimination discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of  conditions of disadvantaged individuals or groups including those that are disadvantaged because of  race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. R v Edwards Books —Legislation concerning religion could therefore be competent to either federal

Parliament or the provincial legislatures, depending depending upon the characteristics of the law. In other words, in classifying a law for the purpose of the federal distribution distribution of powers, the law’s impact on religion would not necessarily be the critical factor R v Big M Drug Mart —Lord’s Day act, a federal statute, that prohibited (with exceptions) commercial

activity on Sunday, was declared unconstitutional unconstitutional because because the purpose of the Act was “to compel the observance of the Christian Sabbath”. That purpose was an infringement of the freedom of religion of  non-Christian, non-Christian, because, by virtue of the guarantee of freedom of religion, “government “government may not coerce individuals individuals to affirm a specific religious practice for a sectarian purpose”; the effect created a “competitive “competitive pressure” to abandon a non-Sunday non-Sunday Sabbath, which was an abridgment of freedom of  religion. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a  person chooses, the right to to declare religious religious beliefs openly openly and without without fear of hindrance hindrance or reprisal, reprisal, and the right to manifest religious beliefs by worship and practice or by teaching and dissemination B.(R.) v Children’s Aid Society (1995)—the decision of parents to prohibit doctors from giving a blood

transfusion to their baby daughter was protected by freedom of religion because it was dictated by their beliefs as Jehovah’s Witnessess; the right of a parent to choose the medical treatment of the child in

accordance with the parent’s religious beliefs was a “fundamental aspect of freedom of religion, and that the statutory procedure that had been employed in this case was a “serious” infringement of the parent’s parent’s rights. However, La Forest, J. speaking for the majority said that the procedure was justified under s 1. There were intrinsic limits on freedom of religion, and “a parent’s freedom of religion does not include the imposition on the child of religious practices which threaten the safety, health or life of  the child” Ross v New Brunswick School District (1996) —Ross was removed from his teaching position because of 

anti-semitic acts. Held: freedom of religion was to be given a broad interpretation, unlimited by consideration of the impact of an allegedly religious practice practice on the rights of the other people; the Court held that most of the board’s order could be justified under s 1 as a measure to remedy an anti-semitic anti-semitic environment in the school. This justified the removal of Ross from his teaching position to a nonteaching position with the school board, but it did not justify a part of the order that required that Ross be dismissed from a non-teaching position if he resumed his anti-semitic activity— activity —that part was declared unconstitutional unconstitutional Syndicat Northcrest v Amselem (2004)— (2004)—Right of condominium owners to build “succahs” (temporary

dwellings) on their balconies. Held: the claimants were entitled to erect their succahs in defiance of the by-laws. The practice need not be part of an established belief system, or even a belief system shared by  some others; it could be unique to the claimant. The practice need not be perceived as obligatory by the claimant; “voluntary expressions of faith” were equally protecte d. All that was necessary to qualify a  practice for Charter protection was that the claimant claimant sincerely believed that the practice practice was “of  religious significance”. Religious Religious belief was “intensely personal and can easily vary from one person to another”. The test was wholly subjective. Expert evidence was not necessary, because the claimant only

had to show the sincerity of his belief . For example, it did not matter that the claimants had not attempted to build their own succhas in the past, because “individuals change and so can their beliefs”. A party to a contract could invoke freedom of religion to resile [ To spring back, especially to resume a former position or structure after being stretched or compressed] from a contractual obligation, in that case, a promise not to build structures on the balconies of the condominiums owned by the claimants. [It is an extraordinary doctrine that permits a contracting party to invoke a sincere religious belief as the basis for ignoring a contractual promise that the promisor freely made but no longer wishes to keep. After all, as Binni J. emphasized, the counterparties will have ordered their affairs in reliance on the external manifestation manifestation of agreement, agreement, and will be rightly disturbed by the promisor’s assertion of a hitherto secret religious scruple to justify not keeping the promise] Multani v Commission C ommission scolaire Marguerite-Bourgeoys Marguerite-Bourgeoys (2006) : Whether a thirteen-year-old Sikh boy

was constitutionally entitled entitled to wear a”kirpan” ( a dagger with a metal blade) to his public school in the face of a school board regulation (in a statutorily authorized code of conduct) that prohibited students from bringing weapons and other dangerous objects to school. Held: the Court found that the student sincerely believed that his religion required him to wear a kirpan made of metal at all times— times —this was all the student had to show: “that his personal and subjective belief in the religious significance of the

kirpan is sincere”. It was irrelevant that “other Sikhs accept such as a compromis e [harmless symbolic kirpan], because this student sincerely believed that a dagger without a metal blade would not comply with his religion. Since the school regulation prevented the student from acting on a sincere religious belief, the regulation contravened s 2(a) of the Charter. Turning to s 1, Charron, J. for the majority agreed that safety in the schools was a sufficiently important objective to justify limiting a Charter right, and there was no doubt that a bladed weapon could cause injury, whether whether by the owner or another student, and whether by a deliberate use or by accident. But she held that the prohibition on weapons was too broad to satisfy the minimum impairment branch of the Oakes test. In order to limit the student’s freedom of religion as l ittle as possible, she ordered the school to permit the wearing of the kirpan, but on condition that it be kept in a wooden sheath and sewn into the student’s clothing so that it 

could not be easily removed. Alberta v Hutterian Brethren of Wilson Colony (2 009): The Hutterian Brethren are a Christian

denomination who live in communal colonies and who believe that having their photos taken (even under the compulsion of law) is forbidden by the Bible. Alberta (in common with the other provinces) requires a driver’s driver’s license to display a photograph of the holder. The purposes are to enable police officers to identify any driver involved in an accident or suspected of a driving offence, and to confirm that the driver is indeed the holder of a license. In 2003, the province established a data bank of digital photographs of all licensed drivers, which was to be used to prevent identity theft. Held: the Hutterian claimants had a sincere religious belief that prohibited their being photographed, and that belief was protected by s 2(a) of the Charter. However, the majority held that the universal photo requirement was  justified under under s 1: it served an important purpose purpose and did not impose impose a severe burden on the the claimants, claimants, who could avoid the requirements by using alternative means of transport. According to the majority, the requirement was a reasonable limit on the freedom of religion and the Hutterian claimants were not entitled to exemption Bruker v Marcovitz (2007)—Husband and wife, as part of the divorced settlement, negotiated and

signed a corollary, custody and access. Because the two spouses were Orthodox Jews, the agreement included a promise to attend before a rabbinical court to obtain a “get”. A get is a Jewish divorce, and it must be granted by the husband and agreed to by the wife. If the husband refuses the get, the wife is an “agunah” or “chained wife”. Even if the couple are divorced under Canadian civil law (as this couple was), any new marriage by the wife would be unrecognized by Jewish law, the relationship would be treated as adulterous and any children would be treated as illegitimate. In this case, despite his promise, the husband refused for 15 years to grant the get, and did so o nly after the wife brought an action against him for breach of contract. Held: the husband, by entering into the corollary relief agreement, had converted his religious right to withhold the get into a contractual obligation to grant the get. He was bound by contract to fulfill that obligation despite its religious aspect; the t he husband’s “binding promise” was “only one of o f the factors that weighs against his claim”; the most important factors were “the public policies of equality, religious freedom and autonomous choice in marriage and divorce” Religion in public schools

Zylberberg v Sudbury Board of Education (1988) —An Ontario regulation, made under statutory

authority, required public school to open or close each school day with “religious exercises consisting of  the reading of the Scriptures or other suitable readings and the repeating of the Lord’s prayer or other suitable prayers”. The regulation conferred a right on each pupil not to participate in the religious exercises. Held: Unconstitutional. Even if the school board had in fact prescribed non-Christian exercises as well as Christian exercises, exercises, the regulation would still be bad because it authorized a school board to prescribed only Christian exercises. exercises. Nor was the regulation saved by a pupil’s right to be exempted from the religious exercises. The regulation exerted an indirect coercion on pupils to participate, because of  the pressure to conform to the majority’s norms, which would make it difficult in practice for a minority pupil to claim the exemption Canadian Civil Liberties Association v Ontario (1990) —Ontario kept in place a regulation dating from

1944 that required a public school to devote two periods per week to “religious exercises”. A parent had the right to apply to the principal of the school to exempt a pupil from the religious education. Held: The Court concluded from the legislative history of the regulation and the curricula that were placed before it that the purpose of the regulation was the indoctrination of Christian belief, as opposed to education about many religions. The regulation was an unconstitutional unconstitutional attempt to impose the majority’s Christian beliefs on all school children, and that it was not saved by the provision for exemption, which parents would be reluctant to utilize for fear of embarrassing their children Denominational Denominational Schools Systems of state aid to minority Protestant and Catholic schools have existed since confederation and are actually guaranteed by s 93 of the Constitution Act, 1867; recognized schools may received public funding [s 2(a) has no establishment clause] Religious Marriage Civil or religious: civil ceremony— ceremony—must be provided for all persons who want to get married and have the capacity to marry, and certainly cannot be denied on the basis of religion; religious religious— —it is accepted that religious ceremony can be denied by a church, synagogue or mosque to those who are not adherents of that particular faith Same-Sex Marriage Reference (2004)— (2004)—Issue: If Parliament could enact a bill legalizing same-sex

marriage for civil purposes. Held: The Court held that Parliament could do so under its power over “marriage” in s 91(26) of the Constitution Act, 1867; the provision of the enactment that states “Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with with their religious beliefs” was declared ultra vires Parliament, because it related to “the solemnization of marriage”, which was a provincial head of power under s 92(12). The performance of  religious rites is a fundamental aspect of a religious practice. Therefore, “absent unique circumstances with respect to which we will not speculate, the guarantee of religious freedom in s 2(a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages marriages that are contrary to their religious beliefs. The provinces could not use their power over solemnization of marriage to compel (in a human rights code, for example) a religious official to

perform a same-sex marriage ceremony that would be contrary to his or her religious beliefs. The bill to legalize same-sex same-sex marriage “for civil purposes” was subsequently enacted

17. FREEDOM OF EXPRESSION

Section 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 without discrimination discrimination and, and, in particular, particular, without discrimination discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of  conditions of disadvantaged individuals or groups including those that are disadvantaged because of  race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Political speech— speech—outside the power of the province and within exclusive power of the federal parliament; free political discussion (the “breath of life of parliamentary institution”) was so important to the nation as a whole that it could not be regarded as a value that was subordinate to other legislative objectives; nor could it be regarded as a local or private matter Tort of defamation— defamation—provincial despite impact on speech because the redress of injury to reputation supplies dominant tortious aspect of the law, and the law of torts is within the provincial power Ways of limiting expression: expression: 1. Prior restraint 2. Border patrol— patrol —Little Sisters Book and Art Emporium v Canada (2000) 3. Penal prohibition— prohibition—example, perjury or counseling suicide 4. Civil prohibition 5. Forced expression— expression —requiring tobacco tobacco manufacturers to be sold in packages that displayed prescribed warnings warnings of the health dangers of smoking 6. language requirement 7. Search of premises Four elements to the privilege (journalist rule on disclosure of sources) (1) must have received the communication communication that originated in a confidence that the identity of the informant would not be disclosed (2) the confidence must be essential to the relationship to which the communication arises (3) the relationship must must be one that should be “sedulously fostered” in the public good (4) the public interest served by protecting the identity of the informant must outweigh the public interest in getting the truth.

Content-neutrality protected falsehoods as well as truths, because the question whether a statement is true or false can be determined only by reference to the content of the statement Access to public property— property—extend the constitutional guarantee to expression on any governmental property so long as the expression was compatible with the principal function of the property (functional test) Reformulated test of application: whether the place is a place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s 2(b) is intended to serve, namely, (1) democratic discourse (2) truth-finding and (3) self-fulfillment Access to courts

The Crown had to establish a serious risk to the proper administration of justice and that reasonable alternative measures will not prevent the risk (R v Mentuck, 2001, also Dagenais v CBC, 1994). In R v Mentuck the Court upheld the publication ban on the identity of police officers involved in the elaborate operation but not the police methods used. In Dagenais, the Court struck down the injunction (which was granted under a common law power to prevent “a real and substantial risk of interference with the fairness of the trial”) the publication ban of TV programme “The Boys of St Vincent” reason ing that there were alternative measures available, namely, adjourning trials, changing venues, sequestering jurors, allowing challenges for cause and voir dires during jury selection, and providing strong judicial direction to the jury. Re Vancouver Sun (2004)—(judicial investigative hearing on Anti-Terrorism Act) principles adopted in

publication ban (Mentuck and Dagenais) also apply to orders limiting access to court proceedings: (1) that the order is “necessary in order to prevent a serious risk to the  proper administration administration of justice

because reasonable alternative measures will not prevent the risk (2) the salutary effects [of the order] outweigh the deleterious effects on the rights and interests of the parties and the public. Freedom of the press included the right of the media to have access to court proceedings. Any power to exclude the media from the court room was a breach of s 20(b) of the Charter except when openness would be inimical to the proper administration of justice, and, because the power was discretionary, the provision was no broader than necessary (CBC v New Brunswick, 1996) Access to government documents: Access documents: Access to documents documents in government hands is constitutionally  constitutionally   protected only where it is shown to be a necessary precondition precondition of meaningful expression, expression, does not  encroach on protected privileges, and is compatible with the function of the institution institution concerned  (Ontario v Criminal Lawyers’ Association, 2010) City of Montreal v. 2952-1366 Quebec Inc. , [2005] 3 S.C.R. 141, 2005 SCC 62 is a leading Supreme Court

of Canada decision on freedom of expression under section 2(b) of the Canadian Charter of Rights and  Freedoms.. The Court held that a strip club has no constitutional right to broadcast music into the streets Freedoms in order to attract customers. The decision stated that location of the expression was a factor in considering if there was a violation. The violation was found to be justified under section 1. They held

that the purpose of controlling noise pollution was a sufficiently important purpose and the means available were reasonable

18. LIFE, LIBERTY AND THE SECURITY OF THE PERSON Legal rights includes the rights of persons within the system of criminal justice, limiting the powers of  the state with respect to investigation, search, seizure, arrest, detention, trial and punishment. Federal— Federal—criminal law and procedures; the various stages of a criminal trial from arrest and charge through to acquittal or conviction and sentence [federal] Provincial— Provincial—Administration of justice includes constitution of criminal and civil courts and civil procedure, and civil procedure, and extends to some aspects of the investigation investigation and prosecution of  crime Section 7— 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 [protection does not include property and determination of rights and obligations respecting economic interests] (a) Corporation—not Corporation—not included; an artificial person such a corporation is incapable of possession “life, liberty or security of the person” because these are attributes of natural persons R v Wholesale Travel Group (1991)—When a corporation is a defendant to a prosecution, the

corporation is entitled to defend the charge on the basis that the law is a nullity. This principle allows a corporation to defend a criminal charge on the ground that the law under which the charge was laid would be a violation of s 7 in its application to an individual (b) Immigrants— Immigrants—includes illegal immigrants; every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law. Meaning, any illegal immigrant who claimed to be a refugee was entitled to a hearing before an official o fficial or tribunal with authority to determine the issue. (Singh v Minister of Employment and Immigration, 1985) © Foetus— Foetus—not included; not entitled to a right to life; s 7 used to strike down restrictions restrictions on abortion, the reasoning being that the restrictions deprived the mother of her right to liberty or security of person [R v Mogentaler No. 2, 1988 ] (a) Physical liberty— liberty —includes freedom from physical restraint Deprivation of liberty: (1) statutory duties to submit to fingerprinting (2) to produce documents (3) to give oral testimony (4) not to loiter in or near schoolgrounds, schoolgrounds, playgrounds, public parks, and bathing areas No deprivation of liberty: (1) law that imposes only a fine (2) s uspension of a driver’s license (3) deportation of a non-citizen non-citizen—because non-citizen has no right to enter or remain in Canada

Cunningham v Canada (1993)—Defendant was sentenced to 12-year imprisonment for manslaughter.

Under the Parole Act, he was entitled to be released on mandatory supervision provided he had been of  good behavior after serving two-thirds of his sentence. Before reaching two-third point of his sentence, the law was amended cancelling the conditional release and require the continued detention of the prisoner for the rest of his sentence. This power was exercisable where there were reasons to believe that the inmate, if released, was likely to commit an offence causing death or serious harm during the unexpired portion of his sentence. The Board exercised this power in the case of the defendant. Held: The change in the law should be treated as the deprivation deprivation of a liberty but was not a breach of principles of fundamental justice. Defendant remained in prison for the rest of his sentence. May v Ferndale Institution (2005)—the Correctional Services Canada transferred the prisoner from a

minimum-security institution to a medium-security institution where his liberty would be more restricted. Held: The Court ruled the transfer as unlawful notwithstanding the failure of CSC to fulfill its statutory obligation of providing information as to the reason of transfer. Blencoe v British Columbia (2000)—The Court ruled that liberty in s 7 is “no longer restricted to a mere

freedom from physical restraint”; restraint”; it applies whenever the law prevents a person from making “fundamental personal choices”. This case involved a claim by Mr Blencoe that his liberty interest had been impaired because of the unreasonable delay of the BC Human Rights Commission in disposing of  complaints of sexual harassment made against him by two women. (b) Economic liberty— liberty —s 7 does not include protection to property, as not including freedom of contract, and, in short, as not including economic liberty. © Political liberty Liberty— Liberty—does not include freedom of conscience and religion, freedom of expression, freedom of  assembly, freedom of association, the right to vote and be a candidate for election, or the right to travel. (d) Security of person Canadian Foundation for Children, Youth and the Law v Canada (2004)—The Court upheld the

provision of the Criminal Code which provides a defence to a charge of assault for teachers and parents who use “reasonable” force “by way of correction” against the children in their care; the best interests of the child was a legal principle (first requirement), but it was not one that was generally regarded as fundamental to the justice of the legal system (second requirement), requirement), and it was not one that yielded a sufficiently precise standard (third requirement); requirement); therefore, therefore, the best interests of the child was not a principle of fundamental justice, and, even if the corrective-force was not in the best interests of the child, it did not infringe s 7; no breach of fundamental justice. justice. R v Mogentaler No. 2 (1988)—The Court held that the Criminal Code’s restrictions on abortion, which

required that the abortion be approved by the therapeutic abortion committee committee of an approved hospital, were unconstitutional. The requirement of approval by a therapeutic abortion committee restricted access to the procedure of an abortion (because some hospitals would not set up the required

committees) committees) and caused delays in treatment, which increased the risk to the health of the woman. The risk to health was caused by the law was a deprivation of security of the person. The breach of  fundamental justice consisted in the unnecessarily restrictive procedural requirements for a therapeutic abortion and in the deprivation of the woman’s freedom of conscience. Canada no longer has restrictions on abortion. Gosselin v Quebec (2002)—The Court upheld Quebec’s welfare scheme under which persons under the

age of 30 received only about 1/3 of the standard welfare benefit, which they could top up to the standard amount only if they participated in stipulated educational or work experience programmes. Section 7 had been extended to economic rights or indeed to any rights wholly unconnected with the administration administration of justice. While section 7 prohibited state deprivations of life, liberty or security of  person, it had not been interpreted as imposing positive obligations on the state to ensure that each person enjoyed life, liberty or security of the person. 47.9 Property— Property —s 7 affords no guarantee of compensation or even of a fair procedure for the taking of  property by the government. Meaning, s 7 affords no guarantee of fair treatment by courts, tribunals or officials with power over the purely economic interests of individuals or corporations “enjoyment of property”—guaranteed property”—guaranteed by the due process clause of s 1(a); there is also, in s 2(e), a guarantee of a “fair hearing in accordance with the principles of fundamental justice for the determination determination of his rights and obligations” Fundamental justice (a) Procedure and substance A deprivation of life, liberty or security of the person is a breach of s 7 of the Charter only if the deprivation is not in accordance with “principles of fundamental justice” justice” BC Motor Vehicle Reference (1995) —The Court held that fundamental justice did indeed cover

substantive as well as procedural due process. Three reasons: (1) fundamental justice justice are literally broader in scope than other formulations formulations that could have been used, such as, “natural justice” (2) the expansion of the concept of fundamental justice has the effect of expanding the protection of life, liberty and the security of person (3) s 7 is a kind of residuary clause for all of the “legal rights” of the Charter. Sections 8 to 14 are merely “illustrative” “illustrative” of deprivations deprivations of fundamental justice justice that could just as easily be caught by s 7. Since ss 8 to 14 go beyond merely procedural guarantees (as in s 9 and “cruel and unusual treatment or punishment in s 12), it follows that s 7 also must go beyond a merely procedural guarantee. [This case involved the validity of BC’s Motor Vehicle Act which made it an offence to drive a car while prohibited from driving or while one’s driving license was suspended. The Act imposed a mandatory term of imprisonment imprisonment on anyone found guilty of the offense. The controversial provision was a subsection that declared that the offence was one of “absolute liability” in which “guilt is established by proof of driving, whether or not the defendant knew of the prohibition or suspension”. The breach of fundamental justice to impose a term of imprisonment for an offence lacked the element of  mens rea (guilty mind)].

Two difficulties of residuary theory: theory: (1) ss 8 to 14 of the Charter not in fact drafted in that way, but as “self -standing provisions” provisions” (2) ss 8 to 14 are not confined to life, liberty and security of the persons, as s 7 is. Thus, s 8 which protects property from unreasonable search or seizure, is not premised on a denial of  life, liberty or the security of the person; this is why s 8 applies to corporation, while while s 7 does not. (b) Definition of fundamental fundamental justice— justice—basic tenets of the legal system 3 requirements: (1) the rule must be a “legal principle” (2) there must be a “significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate (3) the rule must be capable of being “identified with sufficient precision to yield a manageable standard Absolute and strict liability (a) Categories of offenses (b) Absolute liability offence R v City of Sault Ste. Marie (1978) —Categories —Categories of offences: (1) Offenses of “absolute liability”—offence liability”—offence

consists simply of doing the prohibited act. There is no requirement of fault, either mens rea or negligence. The defendant defendant could be convicted even if he or she had no intention of breaking the law and also exercised reasonable care to avoid doing so (2) Offences of “strict “ strict liability”—offence liability”—offence consists simply of doing the prohibited act; however, it is a defence if the defendant proves to the civil standard of the balance of probabilities that he or she exercised reasonable care (due diligence) to avoid committing that offence. In effect there is a fault requirement of negligence, because the accused is liable only if he or she cannot prove the exercise of reasonable care (3) Offenses of mens rea —offences consists not only of doing the prohibited act, but of doing so with the guilty intent (mens rea) of intending to break the law (or being reckless as to whether or not the law would be broken R v Pontes (1995)— (1995) —sequel to the BC Motor Vehicle Reference; The Court upheld an amended version of the BC Motor Vehicle Act of driving while prohibited from driving. The Act provided that any driver who was convicted of driving-related Criminal Code offence was w as “automatically and without notice” prohibited from driving for 12 months. However, the amended Act now contained a saving provision to the effect that, notwithstanding the imprisonment penalty in the Act, “no person is liable to imprisonment for an absolute abso lute liability offence”. The Court ruled there was no breach of s 7 and no need for the law to comply with the principles of fundamental justice; justice; s 7 has no application to an offense that carries only the penalty of a fine, even a very large fine, because in that case “liberty” is not affected © Strict liability offences R v Wholesale Travel Group —the accused corporation was charged with the offense of false or

misleading advertising under the Competition Act. The Crown alleged that the company had advertised travel packages at “wholesale” prices, while in fact charging “retail” prices. The Act made clear that there was no requirement of mens rea: the only defence was one of due diligence (reasonable care), and the burden of proving due diligence rested with the accused. Held: The Court ruled that the offense

of false or misleading advertising in the Competition Act was not a “true crime”, but was merely a “regulatory offence” or “public welfare offence”. The characteristic of a true crime was that inherently inherently wrongful conduct was punished. A regulatory offence, on the other hand, was designed to establish standards of conduct for activity that could be harmful to others; it did not imply moral blameworthiness; and it attracted less social stigma. Regulatory offence was to be regarded as one of strict liability and two characteristics of strict liability liability were (1) that there was a defence of due diligence, and (2) that the burden of proving due diligence rested on the defendant In the case of regulatory or a public welfare offence, including those that carry the penalty of  imprisonment, fundamental justice does not require the mens rea be an element of the offence. Fundamental justice is satisfied if there is a defence of reasonable care (due diligence), and burden of  proving reasonable care (to the civil standard) may be cast on the defendant. In the case of “true crimes”, however, fundamental justice requires that mens rea be an element of the offence, and the burden of proving mens rea (to the criminal standard) would have to be the Crown. S 7 of the Charter required that offences that carry the penalty of imprisonment must include an element of fault. That element of fault must be subjective mens rea if the offence is a true crime, but need only be negligence negligence if the offence is a regulatory regulatory offence R v Vaillancourt (1987) —The accused was charged with murder as a result of a poolroom robbery in

which the accused’s accomplice shot and killed a customer of the poolroom. The accused knew that his accomplish was carrying a gun, and of course he intended to rob the poolroom. He was charged under the felony-murder branch of murder, and the appeal proceeded on the assumption that he did not foresee that a death was likely to ensue from the robbery (subjective (subjective foresight) and that there was at least a reasonable doubt as to whether he ought to have foreseen that a death was likely to ensue (objective forsesight). Held: The Court said that the felony-murder rule is unconstitutional for being a violation of fundamental justice under s 7. The felony-murder rule (constructive murder rule) states that if an accused caused a death in the course of committing certain serious offences, including robbery, while armed with a weapon, then the accused was guilty of murder. There was no requirement that the accused intended to cause death (subjective foreseeability), foreseeability), or even that he ought to have known that his actions were likely to cause death (objective foreseeability). In place of these culpable states of mind, the felony-murder rule required required only proof of the felony, the use of carrying of the weapon and the ensuing death. [It was the extreme stigma and severe punishment associated with murder that entailed the requirement that the accused have some level of mens rea with respect to the death] Unforeseen consequences consequences R v DeSousa (1992)— (1992)—the accused, while in a fight, threw a glass bottle that shattered against a wall, causing fragments of glass to injure an innocent bystander. He neither intended nor foresaw this injury. He was charged of unlawfully causing bodily harm which carries a penalty of 10 years imprisonment. Held: the Court said in upholding his conviction that only mental element that was constitutionally required for the offence of unlawfully causing bodily harm was embedded in in the word “unlawfully”.

There was no constitutional constitutional requirement that intention, either on an objective or subjective basis, extend to the consequences of unlawful acts in general. R v Creighton (1993) —The Court upheld the constitutionality of the Criminal Code’s requirement of 

objective foresight of bodily harm as the mental element of unlawful act manslaughter. Foresight of the death was not required, despite the fact that the maximum penalty for manslaughter was imprisonment for life Involuntary Acts (a) Automatism Automatism R v Parks (1992) —the accused got up in the middle of the night, drove his car 23 kilometers from his

home to the home of his wife’s parents, parked, got out entered the home of the parents -in-law, killed his mother-in-law and wounded his father-in-law. He was charged with murder and attempted murder. His defence: sleep-walking, which resulted in a state of automatism. Held: His acquittal was upheld by the Court R v Stone (1999)— (1999) —the accused, after relentless taunting by his wife, stabbed her to death. He was acquitted of murder but convicted of manslaughter. He appealed to the Supreme Court arguing that he should have been acquitted because the taunting of his wife was a psychological blow that had induced a state of (non-insane) automatism that freed him from criminal responsibility for the stabbing of his wife. Held: The Cour ruled that this defence was not available, because a “normal” person would not have shifted into a state of automatism as the result of wife’s taunts. (b) Duress An offence committed “under compulsion” is excused from criminal liability; compulsion must take the form of “threats of immediate death or bodily harm from a person who is present when the offence was committed R v Ruzic (2001) —the accused arrived in Pearson Airport in Toronto carrying heroin strapped to her

body and a fake passport, and she was detected, arrested, charged charged and tried for unlawful importation importation of  narcotics and use of false passport. She admitted both offenses but claimed that she had been forced to commit the offences by a man in Belgrade (where she live) who threatened to harm he mother (who also live in Belgrade) if she did not follow his order to take the drugs to Toronto. Held: The Court affirmed her acquittal and dismissed the Crown’s argument on appeal ap peal that the threats were not “immediate” and the person who threatened her was not “present when the offence as committed. The immediacy and presence requirements of s 17 were struck down as unconstitutional, because they had the potential, on facts like those of the present case, of convicting a person who had not acted voluntarily. © Intoxication

Offence of general intent— intent —one for which the mental element of the offence (mens rea) is simply an intention to do the prohibited prohibited act (actus reus) Offence of specific intent— intent—one for which there is a required mental element in addition to the intention to do the act. For example, assault to resist arrest, because the intention to resist arrest is an added mental element, while simple assault is an offence of general intent, because the only mental element is the intention to commit the act of assault. In the case of specific intent, extreme intoxication may negative the additional intent and lead to the acquittal of the accused, bit the accused would not normally escape responsibility, because because the accused could still be convicted of a lesser offence such as simple assault for which no specific intent was required. R v Daviault (1994) —the accused was charged with a sexual assault. The complainant, who was

confined to a wheelchair, testified testified that the accused (who had been drinking in her apartment) had wheeled her into her bedroom, had thrown her onto the bed and sexually assaulted her. The accused testified that he had been drinking heavily during the day and evening, and that he awoke without any clothes on in the complainant’s bed, but had no recollection of what had happened before that. Held: the Court ruled that ss 7 and 11 (d) of the Charter were offended by the rule that self-induced intoxication was no defence to a criminal charge. The Charter required required that self-induced intoxication, if  it was so extreme as to be akin to automatism, must free the accused from criminal liability. The  judgment of conviction of Quebec Court Court Appeal Appeal was reversed. reversed. R v Robinson (1996)—The court held that if drunkenness raised a reasonable doubt as to whether the

accused in fact possessed the requisite specific intent, the accused was entitled to be acquitted even if  there was no doubt that the accused possessed the capacity to form the requisite intent Overbroad laws Overbreadth— Overbreadth—applies to a law that is broader than necessary to accomplish its purpose R v Heywood (1994)—the Court held that a law that restricted liberty more than was necessary to

accomplish its purpose would be a breach of fundamental justice by reason of “overbreadth” “overbreadth” striking down “vagrancy” in the Criminal Code making it an offence for a person who had been previously found guilty of sexual assault to be “found loitering in or near a school ground, playground, playground, public park or bathing area”. The law was overbroad because (1) its geographic scope was too wide, because parks and bathing areas, included places where children were not likely to be found (2) its duration was too long, because it applied for life without possibility of review (3) the class of persons to whom it applied was too wide, because some of the offenders to whom it applied would not be a continuing danger to children. The analysis used by the court to determine the overbreadth argument, is to examine hypothetical cases. If a hypothetical case can be imagined that is outside the purpose of the law, but is nevertheless caught by the terms of the law, then the law is overbroad and is unconstitutional in its entirety. Not the same as vagueness; a law could be perfectly clear and still use means that went further necessary to accomplish the law’s purpose (in which case it would be overbroad). A law that was

excessively vague might also be excessively broad, and thus fail both requirements. Overbreadth and vagueness have this in common: either deficiency results in the invalidity of the entire law, including the part that is consistent with the purpose of the law and clear in its intention Disproportionate Disproportionate laws R v Malmo-Levine (2003)—The issue was the criminalization criminalization (with the possibility of imprisonment) of 

the possession of marihuana. Held: The Court established established the doctrine of “disproportionality”, “disproportionality”, which is a breach of the principles of fundamental justice. The doctrine requires the Court to determine: (1) whether the law pursues a “legitimate state interest”; and, if it does, (2) whether the law is grossly disproportionate to the state interest. On the prohibition of marihuana possession, the answer was yes, the state has legitimate interest. As to whether the prohibition of the possession was too extreme a response to that state interest, the answer was not. No disproportionality exists; law upheld. Arbitrary laws A law is arbitrary if it lacks a real connection on the facts to the purpose of the law is said to serve Chaoulli v Quebec (2005)—Quebec’s prohibition to purchase a private health care insurance was

challenged on the ground that there were excessive delays in seeking treatment treatment through the public health care system which precluded persons except the rich who could travel outside Canada for treatment, needing timely medical treatment. Held: the Court struck down the law because it is arbitrary. Arbitray Arbitray law lacks a real connection on the facts to the purpose is said to serve. Vague laws (a) Void for vagueness— vagueness—a vague law violates the principles of fundamental justice, which causes a breach of s 7 if the law is a deprivation of life, liberty or security of the person. A vague law offends two values that are fundamental to the legal system. First, the law does not provide fair notice to persons of  what is prohibited, which makes it difficult for them to comply with the law. Secondly, the law does not provide clear standards for those entrusted with enforcement, which may lead to arbitrary enforcement Overbreadth v Vague—in the cause of vagueness, the use of hypothetical cases in not permitted. Once

the law has been determined to apply to the defendant on the facts of the case before the court, the defendant is not permitted to point to the vagueness of the law in its application to other (hypothetical) cases not before the court (b) Standard of Precision— Precision—a law is unconstitutionally unconstitutionally vague only if it cannot, even with judicial interpretation, provide meaningful standards of conduct © Application to other Charter rights R v Morales (1992) —the Court declared a Criminal Code provision that authorized authorized a judge to deny bail

to an accused person on the ground “that his detention is necessary in the public interest” unconstitutional unconstitutional for being vague. The public interest criterion would authorize a “standard sweep”,

because under that criterion “a court can order imprisonment whenever it sees fit”. The bail provision provided “no guidance for legal debate”. (d) Wrong laws R v Gamble (1988) —the accused was tried and convicted for murder and sentenced to life

imprisonment under the Criminal Code provision which had just come into force and were not in force at the time of the commission of the offence. Not only had the elements of the offence been changed, so had the rules regarding eligibility eligibility for parole. Had she been convicted under the old law, she would have been eligible for parole after 10 years. The trial and conviction took place in 1976, long before the Charter of Rights was in force. In 1986, when the Charter of Rights was in force, and she had served 10 years of her sentence, she applied for habeas corpus to remove from her sentence the condition that she be ineligible for parole for 25 years. The Court granted her application. 47.20 Right to silence R v Herbert (1990) —The Court declared that the accused’s right to counsel was breached when

undercover police officer posed as another prisoner elicited incriminating statements from him. The trick used by the police subvert the accused’s election not to make statement to the police. The Court excluded the incriminating statement. R v Broyles (1991)—the accused made a statement while while in custody to a friend who visited him in the

 jail. Unknown Unknown to the accused, accused, the friend had been recruited recruited as a police police informer, informer, and was wearing a body pack upon which the accused’s statement was recorded. Held: The court ruled that the informer was acting as an agent of the state, and should be covered by the same constitutional restraints as a police officer. Since the recording showed that the informer had actively elicited the statement by his questions to the accused, the statement was obtained in breach of the right to silence. The statement was excluded. R v Osmar (2007) —the accused confessed of murdering 2 men to the undercover police officers who

posed as organized crime figures and recruited him to join in their organization. The confession was a requirement requirement to join the organization in order to gain the trust of Mr. Big. Held: the Court admitted the confession because the accused was not detained by the police when he made the confession. He was not aware that he was talking to police officers and was not under any form of state coercion. R v Singh (2007) —the accused was advised by his counsel not to talk to the police, which he relayed to

the police. But the police continued to go over the evidence with him and engaged him in limited conversation. When shown pictures of the crime scene (pub) that had been taken by video surveillance, he admitted himself in the video. He was convicted. Held: The Court said that the right to remain silent did not include the right not to be spoken to by state authorities. The right right to silence is not offended by voluntary statement. In this case, the accused’s statement was not induced by threats, promises, oppression or trickery, and had been found to be voluntary. vo luntary.

Right to counsel v right to silence— silence —the right to counsel is outside the control of an accused who is in police custody; the accused is dependent on the help of the police to exercise the right. This explains why the police is required to refrain from questioning the accused until he has had a reasonable opportunity to contact counsel. But where the accused contacted counsel, the right to silence should not be interpreted as continuing to preclude police questioning. The accused has an operating mind, and of his own free will may change his mind about whether to talk to the police. That change of mind may take place as a result of police persuasion, provided provided the police conduct does not deprive him of choice. R v. Fitzpatrick (1995) —the Court ruled that the fishing records required under Federal Fishery Act can

be used at the accused’s trial. In the context of regulatory scheme to which the accused had voluntarily submitted by engaging in the business of fishing, fundamental justice justice did not provide immunity against the use of statutorily compelled information. R v White (1999) —whether 3 reports, which had been made to the police under the compulsion of a

provincial law requiring a reporting of serious traffic accidents, were admissible at the criminal trial of  the person who made the reports, who was charged with failing to stop at the scene of an accident. Held: the Court ruled that because the accident reports were provided under compulsion, their admission into evidence against the accused would violate a principle of fundamental justice under s 7, principle against self-incrimination. self-incrimination. Driving is not freely undertaken in precisely the same way as one is free to participate in a regulated industry such as commercial fishery and that the reporting of traffic accidents, unlike the reporting of fishing catches, was to the police whose duty was to investigate possible crimes arising out of the accidents reported. reported. R v Jarvis (2002)—Section 7’s residual principle against self-incrimination self-incrimination became applicable when “the

predominant purpose” of a tax official’s inquiries moved from audit to investigation, investigation, that is, an inquiry into the commission of an offence carrying the penalty of imprisonment. At that point, the requirement and inspection powers ceased to be available. During the investigation investigation phase, tax officials could not continue to use the audit powers to collect evidence for a criminal prosecution. If more material was sought from the tax payer, it had to be obtained by standard criminal investigatory techniques, which would involve a search warrant. 3 different kinds of immunity under the right against self-incrimination: (1) use immunity —which protects the witness from having the compelled testimony used to incriminate him or her in a subsequent proceeding. proceeding. This is provided to “a witness who testifies in any proceedings” by s 13, and to persons other than witnesses by s 7; (2) derivative use immunity”—which immunity”—which protects the witness from having the compelled testimony used to obtain other evidence (derivative or secondary evidence) to incriminate him or her in a subsequent proceeding, unless the derivative evidence is discoverable independently of the compelled testimony; (3) constitutional exemption from testifying in the first place which applies if an attempt is made to use a statutory compulsion compulsion to obtain testimony for the predominant purpose of obtaining evidence for the prosecution of the witness. Fair trial (a) The right to a fair trial

Charkaoui v Canada (2007)—At issue was the process for the issue of “security certificates” under the

federal Immigration and Refugee Protection Act. The Act empowered two ministers to issue a certificate declaring a non-citizen named in the certificate to be a threat to national security. The certificate authorized the arrest and detention of the named person. The problem with the process was that at no stage did the named person necessarily know the nature of the case against him. There was no hearing on the original issue of the certificate. Held: the Court held that the issue of a security certificate was a deprivation of liberty under s 7, and that the review process did not satisfy the principles of fundamental  justice, because because it did not provide the named person with with a fair hearing. hearing. The secrecy secrecy required required by the scheme denies the named person the opportunity to know the case put against him or her, and hence to challenge the government’s government’s case. This was a breach of the principles of fundamental justice. It could not be justified under s 1 because the law failed to limit the right by the least drastic means, because Parliament could have adopted procedures to protect secrecy that were less intrusive of individual rights. The court pointed to a system of “special counsel” that t hat had previously been used in Canada and was used in other countries in national security cases. Special counsel were independent counsel with security clearances who could be retained by the Federal Court judge, and to whom full disclosure could be made, and who could then scrutinize the evidence and do their best to defend the interests interests of the named person. (b) Full answer and defence R v Seaboyer (1991) —this right is abridged by a “rape“rape -shield” provision in the Criminal Code, which

restricted the right of a person charged with sexual assault to cross-examine the complainant about her past sexual activity. This provision would occasionally have the effect of excluding relevant evidence evidence that was required to enable the accused to make full answer and defence. The provision was struck from the Criminal Code. © pre-trial disclosure by the Crown R v Stinchcombe (1991)—the Court held that pre-trial disclosure by the Crown of all information

relevant to the conduct of the defence is a constitutional obligation, entailed by the accused’s right to make full answer and defence. The obligation applies not only to statements statements obtained from witnesses that the Crown intends to call at trial, but also to statements obtained from persons that the Crown does not intend to call as witnesses. The obligation of disclosure does not cease with the trial, at least not if the accused is convicted. If the information comes into possession of the Crown after the trial, the Crown’s obligation is to disclose “any information in respect of which there is a reasonable possibility that it may assist the accused in prosecuting an appeal. Remedies: (1) order of disclosure with an award of costs to the accused (2) if disclosure is too late (too close to the trial date), adjournment of the trial to give the defence time to consider the tardy-produced evidence (3) New trial, if the disclosure is not discovered until after the accused have been convicted and if the failure to disclose casts doubt on the reliabilityof the verdict or the fairness of the trial (d) Pre-trial disclosure by third parties

R v O’Connor (1995) —Access to private records in the possession of third parties could be necessary to

an accused’s right to make full answer and defence. However, this did not give an automatic right o f  access to the records. The defence must apply to the trial judge for a disclosure order, and must establish on a balance of probabilities that the records are “likely relevant” to making full answer and defence. If likely relevance is established, the records must be produced into court, but at this stage only for the private inspection of the judge. The judge must inspect the records and determine whether a disclosure order should be made. That determination should be made only after considering the following five factors: (1) the records’ importance for full answer and defence (2) their “probative value” following (3) the nature and extent of privacy vested in them (4) whether production would be premised on a discriminatory discriminatory belief or bias and (5) the effect that production would have on a witness’s dignity, privacy and security of the person. Right to full answer and defence— defence—not absolute but one that must at time yield to other constitutional values Solicitor-client Solicitor-client privilege R v McClure (2001) —as a general rule, privilege holder (client) could refuse to produce litigation file in

court proceedings because the fundamental importance of solicitor-client privilege, the privilege would yield to the accused’s Charter right to full answer and defence only if the accused’s innocence was at stake, that is, when the observance of the privilege (exclusion of the evidence) would probably lead to a wrongful conviction. Two stage process: (1) the judge had to determine determine whether there was an evidentiary basis to conclude that the privileged records could raise a reasonable doubt as to guilt. If  that stage is passed, then the judge would proceed to a second stage and inspect the records privately to determine if they were likely to raise a reasonable doubt as to guilt. Only if both stages were passed, would the judge order production of the records to the accused in the face of solicitor-client privilege (e) Preservation of evidence The Crown’s duty to disclose relevant evidence evidence to the accused applies only to evidence that is in the possession or control of the Crown. Evidence that has been destroyed or lost (or never existed in the first place) cannot be disclosed R v La (1997) —a breach of s 7 would occur if the Crown could not provide a satisfactory explanation for

the loss, which would be the case if the evidence had been deliberately destroyed or had been lost by “an unacceptable degree of negligent conduct” R v Carosella (1997)—the records sought to be produced by the accused was deliberately destroyed

(shredded) by the sexual assault crisis center pursuant pursuant to its policy [in cases where likely to lead to a prosecution]. The Court held that since the records had been deliberately destroyed, destroyed, it was not necessary for the accused to show that his right to make full answer and defence had been prejudiced by the loss of the evidence. It was enough that the evidence “may affect the conduct of the defence”. The possibility that the notes would reveal some inconsistency between the account the complainant made to her counselor and her testimony at trial was enough to meet this low threshold.

Parliament has now prohibited the disclosure to the accused in sexual-assault cases of confidential records of which the only relevance is that they may disclose an inconsistent statement by the complainant or that they may relate to the credibility of the complainant [ SC 1997, c 46, s 1, adding new ss 278.1-278.91 to the Criminal Code]

(f) Statutory limits on pre-trial disclosure Criminal Code amendments: amendments: a confidential record will be produced for inspection by the court if the defence can establish both that it is “likely relevant”, and that its production is “necessary in the interests of justice”

19. EQUALITY OF RIGHTS

Egalitarian values [trend [trend of thought that favors equality among living entities. Egalitarian doctrines maintain that all humans are equal in fundamental worth or social status]; two issues: (1) Extent to which each level of government may deny or limit egalitarian values, for example, by the enactment of  laws that discriminate on the basis of characteristics characteristics such as race, national origin or sex; (2) the extent to which each level of government may promote egalitarian values, for example, by the enactment of laws that forbid discrimination in employment, accommodation and facilities open to the public Doctrine of parliamentary sovereignty— sovereignty —the Parliament could discriminate discriminate as it pleased in enacting otherwise competent legislation 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 discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration or conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or   physical disability.

Equality before the law, under the law, equal protection of the law and equal benefit of the law. (f) Reasonable classification classification—if a law pursues a legitimate state purpose, and it employs classifications that are reasonably related to the accomplishment accomplishment of that purpose, there is no violation of equal protection. Discrimination— Discrimination —(1) the challenged law imposes (directly or indirectly) on the claimant a disadvantage (in the form of a burden or withheld benefit) in comparison to other comparable persons (2) the disadvantage is based on a ground listed in or analogous to a ground listed in s 15, and (3) the disadvantage also constitutes an impairment of the human dignity of the claimant

 Andrews v Law Society of British British Columbia (1989) (1989)—requires that members of the Bar in BC had to be

citizens of Canada. In order for a legislative distinction to amount to discrimination against an individual or group, the distinction must be one “which had the effect of imposing burdens, obligations or disadvantages on such individuals or group imposed on others, or which withholds or limits access to opportunities, benefits and advantages available to other members of the society “Analogous ground”—is one based on a “personal characteristic characteristic that is immutable immutable or changeable only at unacceptable cost to personal personal identity” example, citizenship, marital status, sexual orientation; Not analogous: place of residence [except in the special case of residence on an Indian reserve], occupation, substance orientation © Correspondence factor— factor—the correspondence, or lack thereof, between the ground or grounds on which the claim is based and actual need, capacity, or circumstances of the claimant or others; correspondence correspondence means the legitimacy of the statutory purpose and the reasonableness of using a listed or analogous ground to accomplish that purpose R v Kapp (2008) —human dignity is an essential value underlying s 15 equality guarantee but as a legal

test, it was confusing and difficult to apply and an additional burden on equality claimants, rather than the philosophical enhancement it was intended to be  Auton v British British Columbia (2004) (2004)—Funding of new therapies “may be legitimately denied or delayed

because of uncertainty about a program and administrative administrative difficulties related to its recognition and implementation”. Because the claimants had adduced no evidence that the province was funding “other comparable, novel therapies”, they could not show disadvantage or unequal treatment (b) Requirement of disadvantage Thibaudeau v Canada (1995)—the claimant was a divorced woman who had custody of the children of 

the marriage and received child-support payments payments from her former husband. She questioned the provision of the Income Tax Act that required her to pay income tax on the support payments she received from her former husband. She argued that the tax provision discriminated against separated custodial parents because in an intact family the income tax on money spent on child support would be paid by the spouse who earned the income. Held: The Court ruled that the inclusion requirement on the recipient spouse was matched by a deduction for the payor spouse. Since the payor spouse was usually in higher tax bracket than the recipient spouse, the tax saved by the deduction would normally exceed the tax by the inclusion. This resulted in a reduction of tax for the majority of separated couples— couples —a reduction that cost the treasury over $300 million per year. The amount of child support should be grossed-up to fully compensate the recipient of her additional tax liability. In this case, the liability was underestimated underestimated but this can be remedied by a review of the support order by the family court. Income Tax Act did not discriminate; no breach of s 15. Eaton v Brant County Board of Education (1997)—The parents of a 12 year old cerebral palsy

questioned the decision of Ontario Special Education Education Tribunal transferring their their child to a special classroom from regular classroom without their consent. consent. Held: The Court ruled that no violation of s 15

because the purpose of the distinction was to identify children with special needs and then to design special educational programmes to meet those special needs. The equality right was that of the child, not her parents and the issue had to be resolved from the child’s point of view as opposed to that of the adults in his or her life. © Objective and subjective disadvantage Egan v Canada (1995)—the Court ruled against the discrimination claim by a same-sex couple against

the spouse’s allowance that was payable under the federal Old Age Security Act to the “spouse” of a pensioner. The term spouse included persons in common-law relationships but only if they were of the opposite sex. While there might be an advantage in this specific instance, there was nothing to show that this is generally the case with homosexual couples. The Court was implicitly applying a subjective standard that the claimants were disadvantage because, according to their subjective calculus of costs and benefits, the disadvantage of not being officially recognized as spouses outweighed the advantage of higher single-status single-status social assistance Showing of general (or group) disadvantage prerequisite to s 15 claim? Not necessary to pronounce the issue; in Miron, the Court said “indicator” or ”indicium”; in Egan: while the historical disadvantage disadvantage or a group’s position as a discrete and insular minority may serve as indicators of an analogous ground, they are not prerequisites for finding an analogous ground Direct and indirect discrimination (a) substantive equality: A law may be discriminatory on its face, in its effect and in its application; it is not necessary to show that the purpose of a challenged law is to impose a disadvantage on a person by reason of a listed or analogous characteristic. It is enough to show that the challenged law has this effect 55.15 Race— Race—as well as national or ethnic origin and colour, is one of the grounds of discrimination discrimination that is expressly prohibited under s 15. Racial discrimination occurs in the private sphere, the remedy would be found under the human rights codes, not the Charter, which does not apply to private action. Sex (a) Direct discrimination discrimination Trociuk v BC (2003) —the exclusion of the fathers from the registration and naming process impaired

their human dignity. The distinguished on the basis of sex, since fathers were disadvantage in comparison with mothers. The law permitting the mother, on the birth of a child to leave the father’s name off the birth certificate, and, if she did that, to alone choose the surname of the child, was therefore held invalid. (b) systemic discrimination Symess v Canada (2003)—women disproportionately disproportionately bore the social costs of child care, but the Court

held that the taxpayer had not established that women disproportionately bore the financial costs of 

child care. Since the deduction would be available with respect only to the financial costs of child care, it would benefit men as much as women, and its restriction did not amount to discrimination of the basis of sex. © Section 28: Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons. Age— Age—the Act did not use age 16 as a conclusive determinant of capacity, but merely as the bases for a presumption of capacity. For children under 16, the best-interests standard required the judge to take account of the child’s age, maturity and independence independence increased. Law v Canada (1999)—the exclusion of persons under the age of 35 to receive benefits from CPP upon

the death of his or her spouse was not discriminatory discriminatory because it did not impair human dignity. The Court took judicial notice of the fact that widows and widower under the age of 35 were more capable than older persons of maintaining or finding employment and replacing the income lost through the death of  their spouse. The exclusion did not imply that they were less capable or less worthy, but simply designed to recognize the reality that older people would be in greater need of support, and to apply limited resources to those in greater need. Gosselin v Quebec (2002)—Quebec’s social assistance law provided that welfare recipients under the

age of 30 received benefits of only about 1/3 of the standard amount that was payable to persons 30 or over; the lower the benefits could be brought up to the standard amount if the under-30 recipient participated in stipulate educational or work experience experience programmes. Held— Held—not discriminatory because it did not impair human dignity. The welfare scheme (repealed by the time the case reached the Court) was harsh, perhaps even misguided, but it did not treat young people as less worthy or less deserving of  respect; on the contrary, it assumed that they were more able than the older people to benefit from training and education, more able to get and retain a job, more able to adapt to their situations and become fully participating and contributing members of society. Nova Scotia v Martin (2003) —The Court struck down the chronic provision of the worker’s

compensation scheme scheme of NS for impairing human dignity of chronic pain sufferer. The provision provided only for 4-week program of rehabilitation for a worker who was still suffering from chronic pain after apparent healing of a work-related injury; after taking the program, the worker was supposed to return to work. This program was not appropriate as a general answer to chronic pain, which often persisted beyond the 4-week period. The distinction was based on physical disability, even though the members of the comparison group were also disabled. Rodriguez v BC (1993) —the Court upheld the validity of the Criminal Code offence of assisting a person

to commit suicide reasoning that the prohibition would in any case justified under s 1. The plaintiff, who suffered from a debilitating disease, fatal disease (Lou Gehrig’s disease), challenged challe nged the constitutionality constitutionality of said CC provision pointing out that it had the effect of prohibiting the commission commission of suicide by a person who was so physically disabled that she was unable to kill herself without assistance. Ablebodied persons, by contrast, were free to commit suicide (suicide or attempted suicide is not an offence

under CC), because they could do so without assistance. She said that the prohibition on assisting suicide discriminated discriminated on the ground of disability. Citizenship  Andrews v BC (1989)—citizenship analogous to those that are expressly mentioned in s 15 as a ground

of discrimination discrimination Lavoie v Canada (2002)—a statutory hiring preference for Canadian citizens in the federal public service

was a breach of s 15 although the preference was upheld under s 1. The Court rejected the argument argument that, because Parliament’s power over citizenship entailed the drawing of distinctions between citizen and non-citizens, citizenship laws should be exempt from equality review. What has been accepted by the Court is that the statutory power of deportation can be limited to non-citizens because s 6 of the Charter of Rights guarantees to “every citizen of Canada” the right to remain in Canada. Marital status Miron v Trudel (1995)—marital status is analogous to the grounds expressly mentioned mentioned in s 15. The

Court declared that Ontario’s Insurance Act, which dictated the terms of automobile insurance policies in the provinces offended s 15 by limiting accident benefits to the legally —married spouse of an insured, which had the effect of excluding common-law spouses Nova Scotia v Walsh (2002) —the Court upheld NS matrimonial property law which imposed a regime of 

shared property on married spouses which came into effect on the breakdown of the marriage. The exclusion of the unmarried cohabitants did not impair human dignity. The law was premised on the assumption that only those persons who had made the choice to get married had committed themselves to a relationship of such permanence permanence that it would justify imposing on them the obligations to contribute to and share in each other’s assets. The distinction drawn by the law between legally married spouses and common-law common-law spouses corresponded corresponded to real differences between the relationships, and did not impair the dignity of common-law spouses. Sexual Orientation Vriend v Alberta (1998) —the Court held that Alberta’s human rights statute offended s 15 by failing to

provide a remedy for a person who had been discriminated against by this employer on the basis of  sexual orientation. The omission omission of sexual orientation was a denial of equal benefit of the law based on a ground analogous to those listed in s 15. The o mission was not saved under s 1, because Alberta failed to adduce evidence of a legitimate legitimate legislative goal that would be advanced by the failure to protect homosexual persons from discrimination discrimination on the basis of their sexual orientation. M v H (1999) —Ontario’s family law legislation excluding persons in same -sex relationships from spousal

support obligations was declared unconstitutional. The definition of spouse that had this effect discriminated discriminated on the ground sexual orientation, which was analogous ground under s 15, and it also impaired human dignity by implying that persons in same-sex relationships relationships were less worthy of  protection than persons in opposite-sex-relationships. opposite-sex-relationships. The definition was not saved under s 1 because

the goals of the legislation, which were to make equitable provision for the economically weaker spouse on the breakdown of a relationship and to ease the burden on the public purse, were not advanced by the exclusion of same-sex couples. Canada v Hislop (2007)—the Court struck down the remedial law stating that same— same —sex partners how

had dies before Januray 1, 1998 were ineligible for survivor’s pension. Section 15 required that eligibility of the survivors’ pension had to be made retroactive to April 15, 1985, when s 15 came into force. Place of residence— residence—not an analogous ground; it lacks the element of immutability that is common to the listed grounds and is required for the analogous grounds No constitutional requirement requirement that federal laws must apply uniformly across the country, and in fact many federal laws do not do so Occupation— Occupation—not an analogous ground; lacks immutability immutability that is common to the listed ground and is required for the analogous grounds Workers’ Compensation Reference (1989)—a challenged was mounted against the provision of the

Workers’ Compensation Compensation Act of Newfoundland that denies to an injured worker the right to sue his or her employer in tort for injuries suffered in the course of employment. The reason for the provision, which exists in every province, is to make workers’ compensation compensation benefits the exclusive source of  compensation for work-related work-related injuries. The Court held that the essence of which was that the singling out of work-related work-related accident victims was not based on a listed or analogous ground.  Andrews v. Law Law Society of British Columbia Columbia (1989): (1989): On February 2, 1989 in Andrews v. Law Society of 

British Columbia, the Supreme Court of Canada (S.C.C.) ruled on whether the requirement of Canadian citizenship for a specific job in Canada infringed or denied the equality rights guaranteed by section 15(1) of the Charter of Rights and Freedoms (Charter); and if it did, whether it was a reasonable limit on that right justified by section 1. 1 .[1] Andrews had achieved all of the qualifications to practice law, but was a citizen of the United Kingdom. The law required that he be a Canadian citizen to completely qualify as a lawyer. He was denied entry to the legal profession on that basis. Andrews argued argued that he was not being treated equally as many other jobs in Canada did not have a citizenship requirement. requirement. The case is of note in that it established the ground rules for future equality equality decisions by the courts. Andrews lost at trial. The judge ruled that being a citizen involved a special commitment to the community at large, requiring a familiarity with the country, and thus citizenship was a personal characteristic relevant to the practice of law. law .[2] Further the legislation being challenged was rationally based and reasonable under the circumstances and thus did not violate the equality provisions of the Constitution. Constitution.[3] Hence the equality provisions of the Charter were not offended. Andrews appealed. appealed. The British Columbia Court of Appeal overturned the trial judge’s decision. It ruled that the citizenship requirement requirement was unreasonable and unfair and that it did violate violate the Charter’s equality provisions. “Legislators, judges, civil servants and policemen” all play key roles in performing government functions and could be required to be Canadian, but the practice of law was a private profession that did not

require that distinction. distinction.[4] Hence the requirement of citizenship was discriminatory. Nor could the citizenship requirement be saved under s. 1. This was not an important enough government objective to override a Charter right. right .[5] The Law Society of British Columbia appealed. In a 6-2 decision the S.C.C. agreed with the Appeal Court. Chief Justice Ritchie, writing for the 5 member majority, ruled that a two step analysis was required to determine breaches of the equality provisions of  theCharter: First, the court had to determine whether or not an infringement of a Charter right had occurred; Second, it had to determine determine whether if there has been an infringement, it could be justified under s. 1.[6] Therefore, Justice McIntyre set out a two-part test with respect to section 15 equality rights: “(1) the government action must have been made out to achieve a desirable social objective; and (2) the equality right infringed in the process of pursuing that objective must be examined, by evaluating its “importance” to those whose rights were limited; this evaluation is then balanced against a judgment as to whether the limits achieve the objective. ”[7] In Andrews the key words in s. 15 of the Charter were “without discrimination.” Here there was discrimination in that an entire class of people who could seek ordinary employment were barred from doing so in a specific instance. Lawyers acted for individuals. They were not creating law, enforcing the law, or interpreting the law. They were presenting their client’s individual cases. Their citizenship had nothing to do with their duty to represent the best interests of their clients .[8] Judge LaForest agreed with the result, but felt that a “personal characteristic” had been singled out. In his view this was discrimination discrimination which in turn breached s. 15 of the Charter. This was not a desirable social objective. The next question was whether or not the requirement of Canadian citizenship was a “rea sonable limitation” provision under s. 1 of the Charter. The judges disagreed amongst themselves. Three judges ruled that it could not be saved as the citizenship requirement was not sufficiently pressing and substantial to overcome the Charter breach. The government had not proven that a citizenship requirement was necessary to the practice of law. They were joined by a fourth judge in determining that the context of the legislation was not proportional to its objective. The objective was to ensure that lawyers lawyers were familiar with Canada’s court and government systems. There were other ways of ensuring that was the case (e.g. with written tests). As a result the legislation was overturned. Two judges did disagree with the majority. They felt that it was reasonable to expect that those who practice law should be prepared to accept citizenship. citizenship .[9] R v Kapp (2008: On June 27, 2008, the Supreme Court of Canada ruled, in R. v. Kapp ,[1] that an

affirmative action program under the federal government’s Aboriginal Fisheries Strategy did not violate section (s.) 15 Canadian Charter of Rights and Freedoms. Freedoms.[2] Section 15 states that:

(1) Every individual is equal before and under the law and has the right to the equal protection protection and equal benefit of the law without discrimination discrimination and, in particular, without discrimination discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of  race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The federal government introduced the Aboriginal Fisheries Strategy in 1992 as a mechanism to promote aboriginal involvement in commercial fishing. fishing .[3] The strategy included a pilot sales program. program.[4] In one instance, the sales program entailed providing a communal fishing license to three aboriginal bands, which afforded the exclusive right to fish from the Fraser River, in British Columbia, and to make a profit during a specific 24-hour period. period.[5] The appellants, who were mostly nonaboriginal and excluded from fishing during the 24-hour period, protested this aspect of the strategy by fishing during the prohibited time. time .[6] [6]Consequently, Consequently, they were charged. At trial, this group argued that the communal fishing license was unconstitutional on the basis that it amounted to racial discrimination under section 15 of the Charter. Charter.[7] This section of the Charter guarantees equal protection protection and benefit under the law for all persons, but does not preclude ameliorative programs (programs that are designed to correct an existing problem). The Provincial Court of British Columbia held that granting the license to the three aboriginal bands was a breach of the non-aboriginal non-aboriginal appellants’ appellants’ equality rights, and found that the aboriginal bands were neither at a disadvantage, nor did the emotional suffering of the appellants cause a negative impact on their human dignity. dignity.[8] The Court chose to stay the proceedings. proceedings .[9] At the Supreme Court of British Columbia, an appeal by the Crown was allowed. That Court found that the program did not have a discriminatory discriminatory purpose or effect because it found the non-aboriginal complainants were advantaged in comparison to the aboriginal bands. bands.[10] The stay of proceedings proceedings was lifted and convictions entered. entered.[11] The British Columbia Court of Appeal dismissed the next appeal and provided five concurring rationales. Emphasizing the importance of context over form, Justice Low argued that the pilot sales program does not infringe the appellant’s section 15 right. right .[12] Justice Mackenzie pointed to the fact that no discriminatory discriminatory purpose or effect had been sufficiently demonstrated demonstrated by the appellants. appellants.[13] Justice Kirkpatrick held that section 25 of the Charter, which protects aboriginal rights and freedoms in cases of conflict with other sections of the Charter, imbued the scheme with legitimacy. legitimacy .[14] Chief Justice Finch found that section 15 was correctly interpreted by Justices Low and Mackenzie, and did not feel that section 25 needed be addressed .[15] Justice Levine agreed with Chief  Justice Finch in regards to the analysis of section 15, but declined to comment on section 25. 25 .[16] On the final appeal, the Supreme Court of Canada took the opportunity to outline a new method of  interpreting section 15. The majority pointed out that sections 15(1) and 15(2) work in concert to promote a substantive view of equality. equality.[17] While section 15(1) helps to prevent governments from perpetuating prejudice or inflicting hardships on a group, section 15(2) allows the government to work proactively against discrimination discrimination through the creation of affirmative action programs. programs.[18] Traditionally, there have been two ways of approaching a section 15 analysis .[19] The first is to read section 15(2) as

an exemption from section 15(1). The second is to read section 15(2) as an interpretive aid. The Court recommended a third approach: if the government can show that a program serves an ameliorative purpose under section 15(2), then the Court should forgo a section 15(1) analysis. analysis.[20] The advantage of  this approach, the Court stated, is that it avoids the “the symbolic problem of defining defining a program as discriminatory before saving it as ameliorative, while also giving independent force to a provision that has been written as distinct and separate from s. 15(1).” 15(1). ”[21] The Court also stated that the language and the intention behind the provision indicate that the main consideration in discerning whether or not the program fits under the section 15(2) is the legislative purpose. purpose.[22] The actual effects of the legislation and whether or not they turn out to be ameliorative are not of primary concern. The Court expressed the view that this approach helps to avoid interference by the courts in the legislative process. process .[23] A test was then expressed for section 15. A distinction based on an enumerated or analogous ground in a government program will not constitute discrimination under section 15, if under section 15(2): (a) the program has an ameliorative or remedial purpose; (b) the program targets a disadvantaged group identified by the enumerated or analogous grounds. grounds .[24] The Court found that the pilot sales program under the Aboriginal Fisheries Strategy is protected under section 15(2) of the Charter. Charter .[25] [25]T The program’s purpose is ameliorative because its objectives involve promoting financial self-sufficiency self-sufficiency within the aboriginal community and negotiation of solutions to aboriginal rights claims related to fishing. fishing.[26] The group was also found to be disadvantaged in terms of  income, education, and other indicators. The program was, therefore, said to contribute to the promotion of equality. equality.[27] Section 25 was addressed briefly in order to note that it is unclear whether or not the provision encompasses a communal fishing license. license.[28] The Court pointed out that the wording of section 25 may suggest that only constitutional rights are within its scope. scope .[29] It was suggested that section 25 only be discussed case-by-case, when its application is in question. question.[30] Justice Bastarache offered a concurring decision, but gave different reasons. He agreed with the test for the application of section 15, but argued that there is no need for a full section 15 analysis before section 25 becomes applicable. applicable.[31] A conflict between the government program and section 15(1) is all that is required to trigger section 25. Justice Bastarache suggested that section 25 is not merely a canon of interpretation. interpretation.[32] It is an active shield that can be used to protect aboriginal peoples where the Chartermight otherwise interfere with the distinctive, collective, and cultural identity of an aboriginal group. group.[33] In the case at hand, there is a conflict between Charter rights and aboriginal rights, Justice Bastarache argues, and section 25 applies in the present situation to remedy that conflict .[34] R. v. Withler (Canada) Attorney-General 2011: A class action suit was brought against the Canadian

government by the spouses of deceased members of the Civil Service and the Canadian Armed Forces. They argued that a provision of the Public Service Superannuation Act and the Canadian Armed Forces Superannuation Act [2] violated their rights to equal treatment under Section 15(1) of the Canadian

Charter of Rights and Freedoms. Freedoms.[3] Both Acts provided an array of benefits to employees and to the spouses of deceased employees, including a Supplementary Death Benefit paid to spouses of deceased employees. The benefit was paid out as a lump sum to the spouse following the employee’s death. At issue in this case was whether a provision that reduced that lump sum payment by 10% a year after the employee reached the age of 65 (for Civil servants) or 60 (for members of the Armed Forces) was discriminatory. discriminatory.[4] The spouses of the deceased employees argued that this reduction violated their right to equal treatment based on age under Section 15(1) of the Charter. Procedural History: The trial judge in this case dismissed the challenge, finding no violation of Section 15(1). A divided British Columbia Court of Appeal upheld that ruling. Both courts struggled with picking a specific group to compare the complainants to – to  – finding an appropriate comparator group was a required aspect of the Supreme Court’s approach to Section 15(1) at the time .[5] Issues: Did the reduction of the Supplementary Supplementary Death Benefit based on age violate the surviving spouse’s rights under Section 15(1) of the Charter? When undertaking a Section 15(1) analysis, is it necessary to identify a specific group for comparison with the party making the complaint? Decision: The Supreme Court examined the reduction of the Supplementary Death Benefit in the broader context of the benefit scheme as a whole. Looking at the scheme in its entirety, the Court concluded that the reduction of the Death Benefit was offset by other benefits provided by the scheme, such as a higher pension for older employees and their surviving spouses. Therefore the scheme did not violate the Charter. The Court also took the opportunity to rule that a specific comparator group is not necessary for a Section 15(1) analysis. Reasoning: Section 15(1) Analysis The Supreme Court has established a two-step approach to determining whether the equality rights set out in Section 15(1) of the Charter have been violated: Does the statute create a distinction based on listed or or analogous grounds in Section 15(1)? Does the distinction create a disadvantage by perpetuating prejudice or stereotyping ?[6] Step 1 – 1 – Establishing the Distinction - The Comparator Group Equality is necessarily a comparative concept. Therefore, to assess a person’s equality claim it is first necessary to determine whether a distinction has been made between the claimant and another group seeking the same benefit. This is done by selecting a specific group to which the complainant can be compared, which allows the distinction between them to be highlighted. These selected groups are known as ‘comparator groups’. For example, in a case where an individual was not permitted to join a Law Society because he was not a citizen of Canada, the proper comparator group was lawyers who were citizens. citizens.[7]

a) Comparator Groups: Complications Complications Identifying a specific group for comparison is not always a simple exercise, as this case demonstrates. Withler was a class action suit that involved a complicated scheme covering thousands of individuals of  differing ages who received varying levels of benefits: benefits :[8] there were those who qualified for the full amount of the Supplementary Death Benefit, those who qualified for a slightly reduced amount depending on the number of years the reduction provision had been in effect, and those who no longer qualified for the lump sum because of o f their age. The complexity complexity of the scheme made identifying a specific comparator group very difficult. As a result, there was significant disagreement between the Justices on the BC Court of Appeal as to what the appropriate comparator group should be. b) Comparator Groups: Clarification Clarification The Supreme Court of Canada simplified this complicated matter. They noted that it was not necessary to identify a specific ‘comparator’ group. It is more important to determine whether a distinction has been made based on one of the listed or analogous grounds in Section 15(1). 15(1).[9] Focusing too much on finding a very specific group with which to compare and contrast those making challenges to legislation would risk turning the approach to Section 15(1) into a formalistic and less effective tool for ensuring equality in Canada. Canada.[10] Instead, courts need only find a distinction between the claimant group and  others based on a protected ground outlined in the section, and move on to the next step of the analysis. In this case, there was a distinction drawn between the claimants and others based on the age

of their spouses at the time of death. Surviving spouses of older employees received reduced benefits, and this was enough to meet the first step of the test. Step 2 - Does the distinction create a disadvantage by perpetuating prejudice or stereotyping Many laws create distinctions, and many of these distinctions are based on the grounds outlined in Section 15(1) of the Charter. This alone does not mean that a law is discriminatory .[11] Thus the Supreme Court held that it is important, in particular when considering the provision of a benefit scheme, to consider a piece of legislation in its entirety before determining if the distinction “creates a disadvantage by perpetuating a prejudice or stereotype” stereotype”[12] [12].. In this case the Supreme Court looked at the purpose of the Supplementary Death Benefit, namely: to financially assist those individuals whose spouses were younger and therefore either not yet entitled to a pension or whose pension would be smaller than those of older employees. It was not specifically enacted to assist older employees. In looking at the entire benefit scheme, it was important to note that the Supplementary Death Benefit is merely one of several different benefits that included medical and dental insurance, pension supplements, and education subsidies for the children of deceased employees. employees.[13] [13]Thus, Thus, older employees have access to a number of other benefits which need to be considered. The reduction in the Supplementary Death Benefit was offset by the higher pensions paid out to the spouses of deceased older employees. employees.[14] As such, the Supreme Court ruled that the reduction in the death benefit did not discriminate against the claimants. Impact/Going Forward [15]

The removal of a rigid comparator groups approach from Section 15(1) analyses might make challenges under this section easier to prove. Less time and preparation will be required to demonstrate that a distinction has been made under the first part of the test; more time will now be spent discussing whether that distinction is discriminatory under the second part of the test. With discrimination now being defined as perpetuating stereotype or disadvantage, it remains to be seen what success claimants will have in the future. The Court noted in this case that a key factor will be a history of discrimination that a claimant has suffered, while leaving the notion of stereotyping undefined. undefined .[16] While they state clearly that a history of discrimination discrimination is not the only factor, this does indicate a focusing of Section 15(1) on this train of inquiry. inquiry.[17] [17]T The law surrounding the approach to this section continues to evolve and the Supreme Court and scholars must continue to discuss an effective approach to this essential right.

20. REMEDIES

Supremacy clause Section 52(1): The Constitution Constitution of Canada is the supreme law of Canada, and any law that is inconsistent  with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect  Section 24(1): Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or  denied may apply to a court of competent jurisdiction jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances Since the Charter is part of the Constitution of Canada, any law that is inconsistent with the Charter is of  no force and effect (b) Section 24(1) compared : [1] s 24(1) is available only to breaches of the Charter of Rights; s 52 (1) is applicable to the entire Constitution Constitution of Canada, [2] s 24(1) is available only to a person whose rights have been infringed; s 52(1) is available in some circumstances to persons whose rights have not been infringed, [3] s 24(1) may be applied only by a “court of competent jurisdiction”; s 52(1) may be applied by any court or tribunal with power to decide questions of law, [4] s 24(1) authorized the award of a wide range of remedies; s 52(1) appears to authorize only a holding of invalidity, leaving it to the general law to authorize a particular remedy, [5] s 24(1) confers discretion on the court as to whether any remedy should be awarded; s 52(1) appears to confer no discretion on the court, requiring court to make a holding of invalidity if it includes that a law or act is inconsistent with the Constitution Constitution Generally speaking, it will the declaration of invalidity under s 52(1) that t hat provides the remedy for laws that violate a Charter right (or indeed any constitutional right), while s 24(1) provides the remedy for government acts that violate an individual’s Charter ri ght.

Six remedies under s 52(1): (a) Nullification— Nullification—striking down (declaring invalid) the statute that is inconsistent with the Constitution

(b) Temporary validity— validity—striking down the statute that is inconsistent with the Constitution, but temporarily suspending the coming into force of the declaration of invalidity Re Manitoba Language Rights (1985)—[failure of the Manitoba Legislature to enact laws in French and

English] the Court assumed the power to hold that unconstitutional laws were to be given “tempor ary force and effect” to allow the Legislature time to enact the required corrective measure. It invoked the “rule of law” to keep the unconstitutional laws temporarily temporarily in force in order to avoid the vacuum of law in the province. R v Swain (1991)—the Court held as invalid the provisions of the Criminal Code that required the

detention in a psychiatric facility of a person acquitted on the ground insanity. Meaning the person should be released like any other accused who had been found not guilty at his or her trial. The Court held that there was to be a 6-month period of temporary validity so that judges would not be compelled to release into community all insanity acquittees. The Court evidently assumed that the 6-month period would enable the federal government to prepare, and Parliament to enact, replacement provisions which, perhaps by providing additional standards and a separate hearing on the necessity for detention, could overcome the constitutional disabilities of its predecessors. predecessors. Schachter v Canada (1992)—the Court held that the provision of federal Unemployment Insurance Act

offended the guarantee in s 15 of the Charter of Rights because the provision allowed more generous child care benefits to adoptive parents than to natural parents. The statute is “under“under-inclusive” meaning, it failed to include a class of people (in this case natural parents) that had an equality-based constitutional right to be included. The logical remedy is to strike down but to suspend the declaration of the invalidity to allow the government to determine whether to cancel or extend the benefits. Guidelines: those cases in which the immediate striking down of the legislation (1) would pose a danger to the public (Swain) (2) would threaten the rule of law (Manitoba Language case) (3) would result in the deprivation of benefits from deserving persons (Schachter case) The suspended declaration of invalidity can be viewed as a form of legislative demand, demand, whereby  unconstitutional unconstitutional legislation is sent back for reconsideration in light of the court’s judgment. This is not an abdication of responsibility by the Court because if the legislature chooses to take no action during the  period of suspension, the Court’s Court’s declaration of invalidity invalidity will take effect. But the period of suspension suspension

gives to the legislature the first opportunity to remedy the constitutional wrong © Severance— Severance—holding that only part of the statute that is inconsistent with Constitution, striking down only that part and severing it from the valid remainder (d) Reading in— in—adding words to a statute that could be interpreted as inconsistent with the Constitution so as to make the statute consistent with the Constitution Would be appropriate only in “the clearest of cases” where: (1) the addition of the excluded class was

consistent with the legislative legislative objective; (2) there seemed to be little choice as to how to cure the constitutional constitutional defect; (3) the reading in would not involve a substantial change in the cost or nature of 

the legislative scheme; and (4) the alternative of striking down the under-inclusive provision would be an inferior remedy  Vriend v Alberta (1998) —the omission of sexual orientation from Alberta Human Rights Act was a denial

of plaintiff’s equality rights under the Charter. The Court ordered that the constitutional constitutional defect be cured by reading into the statutory list of grounds of prohibited discrimination discrimination the “words orientation”. The addition of this language to the Act, could be accomplished with precision, would not greatly add to the cost of administering the Act, and would be a less intrusive remedy than striking down the entire Act. Miron v Trudel (1995)—The Court read into the definition of spouse new language that would include

the unconstitutionally-excluded unconstitutionally-excluded class of o f common-law common-law spouses. Ontario’s Insurance Insurance Act, which stipulated the terms of the compulsory automobile insurance policies in the province, contained an unconstitutional unconstitutional provision for an accident benefit that was payable to the spouse of an insured person. Spouse in the Act was restricted to a person who was legally married to the insured person. (e) Reading down— down—interpreting a statute that could be interpreted as inconsistent with the Constitution so that it is consistent with the Constitution; the appropriate remedy when a statute will bear two interpretations, one of which would offend the Charter of Rights and the other of which would not. In that case, a court will hold that the latter interpretation, which is normally the narrower one is the correct one; there is no holding of invalidity (f) Constitutional exemption— exemption—creating an exemption from a statute that is partly inconsistent with the Constitution so as to exclude from the statute the application that would be inconsistent with the Constitution (i) Reconstruction Reconstruction— —the Courts may not reconstruct an unconstitutional statute in order to render it constitutional except except in cases of temporary validity, severance, severance, reading in, reading down and the constitutional exemption Hunter v Southam (1984)—the Court held that the search and seizure power in the Competition Act was

unconstitutional unconstitutional under s 8 of the Charter, because the Act did not stipulate a standard of reasonable and probable cause for the issue of a search warrant, and did not invest an impartial judicial body with the power to issue a search search warrant. It is the legislature’s responsibility responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution’s requirements (f) Court of competent competent jurisdiction A Superior court which is a court of general jurisdiction is always a court of competent jurisdiction; its power cannot be limited by a statute [inferior courts and administrative tribunals have been held to be bound by a statutory restrictions and remedial powers]. A trial court, even if it is not a superior court, is a court of competent jurisdiction to hear an application for a remedy that relates to the conduct of the trial, example, (1) exclusion of evidence that has been obtain in violation of the Charter (2) stay of proceedings that have gone on for an unreasonable time (3) an award of costs against the Crown for failure to make timely disclosure to the defence.

Administrative Administrative tribunal is a court of competent jurisdiction if its constituent statute gave it power over (1) the parties to the dispute (2) the subject matter of the dispute (3) the Charter remedy that was sought Decisions of administrative administrative tribunal— tribunal—subject to judicial review by a superior court; no power to make a declaration of invalidity [no more than a decision that the law is inapplicable in the particular case; not a binding precedent] The Court held that a tribunal with power to determine questions of law [violation of Charter rights and aboriginal rights], whether the power was express or implied, was presumed to have the power to determine the constitutional validity of any potentially applicable law. That presumption could be rebutted only by showing that the legislation empowering the tribunal clearly intended to exclude Charter issues from the tribunal’s authority over questions of law. (g.1) Declaration— Declaration—is a remedy that declares the legal position, but does not actually order the defendant to do anything. Canada v Khadr —a Canadian citizen who was being held for trial by the US at a military base in

Guantanamo Bay, Cuba, applied to the Federal Court for an order that Canada request the US to return him to Canada. The accused was alleged to have killed an American soldier in Afghanistan, and the evidence against him included the record of interviews by Canadian officials. Held: The Court held that the Canadian officials had acted in breach of the Charter, and that the breach contributed to the accused’s ongoing detention detention by the US. But the Court refused to order Canada to request the return of  the accused to Canada. The Court recognized that the making of representations to foreign governments was a complex matter upon which the courts should generally defer to the executive branch. The Court granted only a declaration that the accused’s Charter rights had been infringed, thereby leaving to the government g overnment “a measure of discretion in deciding how best to respond” g.2 Damages Vancouver v Ward (2010)—the plaintiff, a Vancouver lawyer, was mistakenly identified by the police as

a person who was planning to throw a pie at the Prime Minister, who was attending a public ceremony in Vancouver. They city police confronted the plaintiff and handcuffed him, and when he protested and created a scene they arrested him for a breach of the peace and took him to a police lock-up, where provincial corrections corrections officers took charge of him. They strip-searched him and held him in a cell for more than 4 hours before releasing him without laying any charges. During this time the police also seized his car, but realized that they did not have enough evidence to obtain a warrant to search it, and returned it to him when he was released. He sued and was awarded damages under s 24 (1) of $5,000 for the province for the strip search in breach of s 8 (unreasonable search search and seizure) and of $100 from the city for the seizure of the car (another breach of s 8). He was also awarded damages of $5,000 from the city for the tort of wrongful imprisonment. Only the awards of Charter damages were appealed. Held: Damages were an appropriate and just remedy for a breach of the Charter when they served a useful function. That function was threefold: not only (1) to compensate the plaintiff for his loss, but also (2) to vindicate Charter rights and (3) to deter future Charter breaches. Because vindication and 

deterrence pursued societal goals, Charter damages under s 24(1) would not necessarily be the same as common-law damages (which are purely compensatory). The Court upheld the $5,000 award for the strip-searched on the ground that his humiliating experience should receive some compensation, and  that the functions of vindication and deterrence were justified some damages. But the Court reversed the award of $100 for the seizure of the car because the seizure did not cause the plaintiff harm: the car was not searched, and although the seizure was a breach of s 8, it was not a serious one. For that breach, the remedy of declaration, which was sufficient to fulfill the functions of vindication and deterrence, was all  that should be grated  Even when damages are functionally required to fulfill one or more of the objects of compensation, vindication or deterrence, there could be countervailing countervailing considerations that would render an award of  damages inappropriate and unjust: (1) availability of alternative remedies (2) concern for effective governance Vriend v. Alberta (1998): On April 2, 1998 in Vriend v. Alberta, the Supreme Court of Canada (S.C.C.)

ruled on whether Alberta’s Individual’s Rights Protection Act (IRPA) offended Canada’s Charter of Rights and Freedoms provisions on equality rights included sexual orientation as a prohibited ground of  discrimination.[1] Delwin Vriend was a laboratory coordinator by a college, and was given a permanent, full-time position in 1988. In 1990 he advised the President of the college that he was gay. In 1991 the college adopted a position statement that stated that homosexuality was contrary to its religious mandate and asked Vriend to resign his position. He refused. The college terminated his position because he was gay. Vriend attempted to complain to the Alberta Human Rights Board, but the Board declined to hear his application on the basis that homosexuals were not covered by the legislation that directed the Board’s enquiries, the IRPA. He then appealed a ppealed that decision to Alberta’s Court of Queen’s Bench on the basis that discrimination discrimination on the basis of sexual orientation o rientation was an unjustified violation of  section 15 of the Charter. Vriend won at trial. The judge ruled that the words “sexual orientation” be read into sections 2(1), 3, 4, 7(1), 8(1) and 10 of Alberta’s IRPA as it did not include homosexuality as a prohibited ground of  discrimination. [1]Justice Russell remarked: “The test was whether homosexuals as a group constituted a discrete and insular minority which had historically suffered discrimination, prejudice or stereotyping by virtue of a personal characteristic. The discrimination against homosexuals is an historical, universal, notorious and indisputable social reality.”[2] They were discriminated against, and accordingly the IRPA did not survive the scrutiny of section 1 of the Charter because homosexuals were not covered by Alberta’s legislation. Section 1 requires that governments must respect such rights in their legislation: “subject only to such reasonable limits prescribed prescribed by law as can be demonstrably justified in a free and democratic society.”[3] The judge ruled that the absence of o f protection for homosexuals was not  justified. The judge also found found she had two choices: choices: a. she could could strike strike down the legislation legislation as being being invalid; invalid; or b. she could read in the right into the IRPA.

She chose the latter, as striking down the legislation would affect the rights of too many other Albertans. The Government of Alberta appealed the decision stating that its decision to ignore the rights of homosexuals was reasonably justified in a democracy. The Alberta Court of Appeal overturned the trial judge’s ruling. Justice McClung wrote the decision for the majority of the Court. He noted that: “Clearly, “Cl early, the content of the IRPA, as it presently reads, is neutral, non-aligned and inclines to neither the homosexual nor the heterosexual heterosexual communities.”[5] Hence the IRPA did not offend the Charter, as it gave all Albertans equal treatment. He also held that the Legislature of Alberta had chosen to remain silent on this subject, just as it had chosen to not deal with such socially contentious matters as: “physician-assisted “physician-assisted suicide, reproductive rights for women (as opposed to their cost), genetic engineering engineering and, to date, the right to work, to give a few examples. Adopting the maxim “All silent, all condemned” as a constitutional tool available to judges to reject a perfectly valid statute because they believe it does not go far enough in their view of the ideal society, breaks new, and in my view, undesirable ground.”[6] Judges should not be substituting substituting their personal views for that of o f the government. The people of  Alberta could elect a new government that had the ability to change the wording of the IRPA if they wanted to do so. Judges should not be interfering interfering in that process. There was a dissent. Justice Hunt agreed with the trial judge to the extent that she would have found that: “ss. 7(1), 8(1) and 10 of  the IRPA violate s. 15(1) of the Charter and are not saved by s. 1.”[7] However, she would have declared those provision void and of no effect. The S.C.C., with two exceptions, agreed with the trial judge.[8] Even the exceptions supported the majority. Justice Major took a narrower view in that, while he agreed with the result, he felt that the Province of Alberta should be given time to rewrite the IRPA, rather than have rights for homosexuals read in by the judiciary.[9]Justice L’Heureux-Dubé L’Heureux -Dubé also agreed, but would have taken a broader view in that she felt that the courts had not gone far enough in its examination of the purpose of section 15 of  the Charter. She stated that: “In my view, to instead make the presence of an enumerated or analogous ground a precondition to the search for discriminatory discriminatory effects is inconsistent with a liberal and purposive approach to Charter interpretation generally, and specifically, to a Charter guarantee which is at the heart of our aspirations as a society that everyone be treated equally.”[10] equally.”[10] Canada (Prime Minister) v. Khadr, 2010 SCC 3 : The appeal should be allowed in part . The appropriate remedy in this case is to declare that K’s Charter rights were violated, leaving it to t he government to

decide how best to respond in light of current information, information, its responsibility over foreign affairs, and the Charter.

The Appropriate Remedy: In the initial trial, the Federal Court ordered the government to request

Khadr’s repatriation from the U.S. to Canada. Canada .[8] On appeal, a majority of the Federal Court of Appeal agreed with this order. order.[9] The Canadian government then brought a final appeal to the Supreme Court,

arguing that no court could provide this remedy. The government claimed that courts lack the power to require the executive branch of the government to do anything in the area of foreign affairs. affairs.[10] The Court said it must consider two questions in order to determine whether the remedy that Khadr sought – sought – a repatriation request from Canada to the U.S. government – government – was appropriate. appropriate.[11] First, is the remedy sufficiently connected to the Charter breach? And second, is it inappropriate because such an order to the government would touch upon the Crown prerogative prerogative power over foreign affairs? The Court concluded that an order to the government to request Khadr’s return would be sufficiently connected to the Charter breach because the breach had contributed to his ongoing detention. detention .[12] The second question, however, was more complex as it involved the appropriate role of the courts in reviewing foreign affairs decisions. The Crown’s “prerogative power,” the Court noted, “is the ‘residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’. ”[13] The Crown prerogative consists of powers and privileges that the courts have historically accorded to the Crown, and that have not been taken away by Parliament. Parliament.[14] These powers used to be exercised by the reigning monarch, but are now mainly exercised by the executive branch of government. In practice, these decisions are made by the cabinet and individual cabinet ministers, including the Prime Minister. Minister .[15] Over time, legislation has gradually limited the scope of the prerogative power. Today the main legal source of cabinet ministers’ power is legislation passed by Parliament. In other words, most of the power in the hands of cabinet is there because laws of Parliament put it there. Still, some powers exercised by cabinet today have their legal source in monarchical authority, authority, not statutes. In this case, the Court confirmed that legislation concerning the powers of the Minister of Foreign Affairs had not eliminated this “residue” of discretionary discretionary power, so the prerogative over foreign affairs remains intact. intact.[16] The Court agreed with the government that the decision not to request the return of Khadr to Canada was an exercise of this prerogative power. power.[17] The Court then considered the role of the courts in reviewing the use of this power. The Court agreed with the government that it is for the executive branch of the government to decide whether and how to exercise its prerogative powers. powers .[18] [18]However, However, it also stated that all government power must be exercised in accordance with the constitution. constitution .[19] This means that the courts have a role in determining whether the exercise of a prerogative power infringes the Charter. Charter .[20] Therefore the Court rejected the government’s argument and concluded that the courts are able to make orders to ensure that the foreign affairs prerogative is exercised within the limits imposed by the constitution .[21] [21]However, However, the Court pointed out that when courts review the exercise of this power they must remain “sensitive to the fact that the executive branch of government is responsible for decisions under this power, and that the executive is better placed to make such decisions within a range of constitutional options.” options.”[22] The courts’ ability to intervene on matters of foreign affairs is therefore a “narrow power.” power.”[23] In this case, the Court concluded that the order granted by the lower courts was not appropriate for two reasons. reasons.[24] First, an order to request Khadr’s return to Canada would give to o little weight to the fact that the executive must make foreign- affairs decisions in “complex and ever-changing ever -changing

circumstances.” circumstances.”[25] While the Court has been willing to issue specific orders on foreign affairs matters in past cases, Khadr’s case involved different issues. Khadr is not under the control of the Canadian government, government, it is unclear how effective it would be to make the requested order, and the Court was unable to properly assess what the impact on Canada’s foreign relations would be if Khadr’s return were requested. requested.[26] This case is therefore unlike cases where the Court ruled that the government could not extradite individuals without without assurances that the death penalty would not be imposed. imposed.[27] The second reason the order would be inappropriate was the inadequacy of the record before the Court. Court.[28] [28]The The Court was not aware of any negotiations between Canada and the U.S. that may have taken place, or will take place, concerning Khadr’s situation. situation.[29] [29]The The Court also noted that representations representations in foreign affairs are delicate matters that involve considerations of the appropriate timing of the request, the phrasing of the request, and what to do if a request is rejected .[30] According to the Supreme Court, it would be inappropriate for any court to direct the diplomatic steps that must be taken to address the breaches of Khadr’s Charter rights. rights.[31] Given these concerns about lack of detailed information information and the need to respect the separation of  powers between the courts and the executive, the Court concluded that the proper remedy was to provide a declaration that the government had violated violated Khadr’s Charter rights. This declaration, according to the Court, would “provide the legal framework for the executive to exercise its functions and consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.” Charter. ”[32] Vancouver (City) v. Ward (2010)  – Damages for Breach of Charter Rights: Rights: When the police – police  – or any

other government actor – actor – breach any of the rights and freedoms guaranteed by the Canadian Charter of  Rights and Freedoms, section 24(1) of the of the Charter empowers courts to order any remedy that the court  considers “appropriate and just in the circumstances.” Section 24(1) does not appear to limit the court’s

choice of remedies. A court may, for example, dismiss a charge, stay the proceedings, quash a search warrant, or exclude evidence. But there has been little authority on monetary damages for Charter breaches. The Supreme Court of Canada’s ruling in Vancouver (City) v. Ward[1] is significant because it offers guidance on when monetary damages damages should be awarded for Charter breaches and the amount that is appropriate. The Court’s reasons focus on providing a framework for courts to analyze whether damages are an “appropriate and just” remedy and the amount that is “appropriate and just.” In making this determination, a court’s discretion is broad, but not unfettered. unfettered .[5] It depends on the circumstances of  each case. case.[6] The Supreme Court also cautiously noted that since constitutional damages is a “new endeavour,” the jurisprudence on the matter “should develop incrementally.” incrementally.”[7] To guide the inquiry into when constitutional damages are appropriate and just, the Court set out a four-step process. The first step is to establish whether there is a Charter breach. Next, it must be shown how awarding damages would serve at least one o ne of the three functions of compensation, compensation, vindication and deterrence. The third step involves considering any countervailing factors which weigh against awarding damages. The final step is to determine the appropriate quantum, or amount of money. Function Justification of Damages

A functional approach to damages means that damages must serve a useful function or purpose. purpose.[8] [8]When When it comes to awarding damages for Charter breaches under section 24(1), there are three interrelated functions functions that further the objectives of the Charter. These are compensation, vindication and deterrence of future breaches. breaches.[9] Compensation is the most fundamental and prominent objective. The goal of compensation is to put the claimant back, as nearly as possible, into the condition he was in prior to the Charter breach. The losses to be compensated may be purely financial, or they may be intangible, intangible, such emotional or psychological psychological harm. harm.[10] Vindication means protecting the Charter from slow erosion. Vindication repairs the breach and maintains the integrity of the Charter. It recognizes that society as a whole is harmed if Charter breaches go unanswered. unanswered.[11] The final objective, deterrence, aims at discouraging government actors from future Charter breaches. breaches.[12] The potential cost of damages awards, for example, might influence police departments to be more vigilant about respecting Charter Charter rights. Countervailing Countervailing Factors Even if the claimant can show that damages are justified, the state must be given an opportunity to show that there are good reasons not to award damages. The Court gave two examples. There may be an alternative remedy – remedy – such as the opportunity to sue for damages on non-Charter grounds grounds – or awarding damages may impede good governance. governance .[13] Good governance would be impeded if damages were awarded for conduct that did not meet a “minimum threshold of gravity.” gravity.”[14] If every insignificant Charter breach resulted in an award of  damages, there would be a “chilling “ chilling effect” on state action. There must be “some “ some immunity” for policypolicymaking and legislative decisions, so it is important that the state not be held liable for enforcing laws that are later declared invalid. invalid.[15] Otherwise, the government would be unable to act without undue concern about being sued. sued.[16] Quantum of Damages Financial losses are easy to measure, but in cases like this one, it is hard to put a dollar figure on such losses as pain and suffering. Nonetheless, tort law regularly involves assessing the value of emotional loss, and it provides good guidance for assessing constitutional damages. damages.[17] Essentially, the quantum of  damages will be determined by the seriousness of the breach. breach.[18] But this is not the only consideration. Reaching an “appropriate and just” figure involves accounting for the public interest. Beneficial government policies and programs should not be jeopardized in the process of awarding damages to an individual. individual.[19] While it is important to compensate the losses caused by the Charter breach, society as a whole should not have to suffer from the diversion of large sums from public purposes to private interests. interests.[20]