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Natural Resources,Mobility Rights,Meech Lake Accord Habeas Corpus Existing since the 13th century, habeas corpus is both a free- standing right and, more recently, a right protected under section 10(c) of the Charter.[1] Habeas Corpus translates to “produce the body”.[2] A habeas corpus application is used by persons who feel they are being wrongfully detained. Upon application, the individual is brought before a judge who will determine whether the detainment is lawful. Provincial courts must hear these applications quickly. The right is available to all individuals in Canada, including refugees and immigrants.[3] Habeas corpus is most often used when a person is being detained against their will and is suffering a deprivation of liberty. Most applications are brought by prisoners detained in correctional institutions and by immigration, child welfare, and mental health detainees.[4] An example of an unlawful detainment is a prisoner being moved from a minimum-security prison to a maximum-security prison without being told why he or she is being moved. If habeas corpus is granted, the individual’s detainment will change such that it is no longer considered illegal. This could include moving a prisoner from a maximum- security back to a minimum-security prison or even releasing the prisoner all together. The Supreme Court of Canada has described habeas corpus as a “vehicle for reviewing the justification for a person’s imprisonment”.[5] A habeas corpus application will typically be approved in cases where an individual has proved two things: 1. Their liberty was deprived in some way.[6] Three circumstances typically lead to a deprivation of liberty: 1. The initial decision to detain an individual; 2. A change in the conditions of the detention; or 3. The continuation of the detention[7] 2. There are legitimate grounds to question the legality of the detention[8] If the applicant successfully proves these two things, it is then up to the authority detaining the individual to prove that this limitation of the individual’s freedom is legal.[9] Habeas corpus is limited only in two ways: 1. It cannot be used by an individual to challenge a finding of guilt or the punishment they received; 2. It cannot be used if there is another process in place that is as good as, or better than, habeas corpus such as a review and appeal process provided by statute.[10] [1] Canadian Charter of Rights and Freedoms, s 10(c), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [2] Colleen M Flood & Lorne Sossin, Administrative Law in Context, 3rd ed (Toronto: Edmond Montgomery Publications Limited, 2018) at 78. [3] Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29 [Chhina]. [4] Flood and Sossin, supra note 2 at 78. [5] Mission Institution v Khela, 2014 SCC 24 at para 30 [Khela]. [6] Ibid. [7] Chhina, supra note 3 at para 22. [8] Khela, supra note 5 at para 30. [9] Ibid. [10] Chhina, supra note 3 at para 2. Opting Out The term ’opting out’ in Canadian constitutional discourse refers broadly to any action by which a province, of its own volition, is excluded from a measure that applies to the other provinces. However, it is important to distinguish clearly between two kinds of ‘opting out’. Opting out of a federal, or federal-provincial, program is entirely different from ‘opting out’ of a constitutional amendment. There has been no actual instance of the latter, but it is at least theoretically possible, under certain conditions, since 1982 (see amending formula). In the former, and more usual, sense the practice of opting out may be traced to the agreement on the financing of universities between the governments of Canada and Quebec in the latter part of 1959. Federal grants to Canadian universities had begun a few years earlier, but the Duplessis government in Quebec had prevented Quebec universities from accepting them. Soon after Duplessis’s death in 1959, an agreement was reached whereby the federal tax on corporations was reduced in Quebec and Quebec’s provincial tax on corporations was increased. Quebec then used the additional revenue to pay grants to its universities equivalent to those which universities in other provinces received from the federal government. Under the federal Pearson government (1963-68), Quebec was offered, and accepted, the opportunity to opt out of several shared-cost programs, including youth allowances and hospital insurance, with corresponding abatements of federal taxation in Quebec. In return, Quebec promised to maintain a similar program from its own resources. This approach lost favour with the federal government when Pierre Trudeau became Prime Minister. However, the Meech Lake Accord, drafted in 1987 after Quebec requested constitutional restrictions on the federal spending power, would have guaranteed the right of any province to opt out, with financial compensation, from any new shared-cost program in a field of provincial jurisdiction, provided it carried on a program compatible with federal objectives. The term ‘opting out’ is also used, somewhat misleadingly, with reference to section 38(3) of theConstitution Act, 1982. That section, originally proposed by Alberta, provides that a provincial legislature may exclude its province from the operation of any constitutional amendment that would transfer a provincial matter into federal jurisdiction. Financial compensation would be provided only if the amendment pertained to education or culture. As many as three provinces, comprising less than half of Canada’s population, could exclude themselves but the amendment would still apply to the other provinces. This complicated procedure has never actually been used, and possibly never will be. Sources: P.W. Hogg, Meech Lake Constitutional Accord Annotated (Toronto: Carswell, 1988). R. Romanow, J. Whyte & H. Leeson,Canada … notwithstanding: the making of the Constitution 1976-1982 (Toronto: Carswell/Methuen, 1984). D.V. Smiley, Constitutional Adaptation and Canadian Federalism since 1945 (Ottawa: Queen’s Printer, 1970). Official Languages ‘Official language(s)’ refer to the language(s) in which states normally conduct their business and communicate with their citizens. Many of the world’s constitutions privilege particular languages as ‘official’ by so declaring them. Some go on to designate their official languages as the languages of use in the legislatures, courts, civil administration, schools and other public emanations of the state. Commonly, states affirmatively promote their official languages with state power. This, however, is not invariably so. Language is a badge of identity for national communities. Nationalist movements often occasion a conflict between language communities. Some countries recognize two or more languages as official, but promote only one as its national language. This is the case with Israel, where Hebrew and Arabic are official languages of the state, but where Hebrew alone is strongly promoted as the Israeli national language. Canada’s Constitution declares English and French as the official languages of Canada and provides that these languages have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. Canada’s constitution also creates rights to use either language in Parliamentary and court proceedings and to communicate with or be served by institutions of the federal government in either language. Under certain conditions French or English language minorities in the provinces have a constitutionally guaranteed right to receive minority language instruction in educational structures appertaining to their communities. Language rights provided for in Canada’s Constitution are deepened and detailed in a federal Official Languages Act. The Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) guarantees as well that all federal employees have the right to use either English or French in the workplace. Importantly, the Act commits the federal government to supporting, enhancing and assisting Canada’s minority official language communities. An ‘Official Languages Commissioner’ supported by a permanent staff monitors implementation of these rights. Oakes Test The Oakes test was created by the Supreme Court of Canada in the 1986 case of R v Oakes.[1] The test interprets section 1 of the Charter of Rights and Freedoms, which states that rights are guaranteed, “subject only to such reasonable limits . as can be demonstrably justified in a free and democratic society.”[2] This means that the government must establish that the benefits of a law outweigh its negative impact—that is, its violation of a Charter right. R v Oakes In R v Oakes, the police caught the accused, Oakes, with hashish oil and cash. They charged him with possession for the purpose of trafficking under theNarcotic Control Act (NCA).[3] He claimed that the drugs were his own and that he did not intend to sell them. At that time, under section 8 of the NCA, anyone found with illegal drugs was presumed guilty of trafficking. Usually, the Crown must prove guilt beyond a reasonable doubt, but under the NCA it was up to the accused to prove that he was not guilty. This is called a “reverse onus”. Oakes challenged the law, arguing that it violated the presumption of innocence guaranteed by section 11(d) of the Charter. The Supreme Court found that this right had been violated. They then had to consider whether the government could justify this violation using section 1. The Test The Court in R v Oakes created a two-step balancing test to determine whether a government can justify a law which limits a Charter right. 1. The government must establish that the law under review has a goal that is both “pressing and substantial.” The law must be both important and necessary. Governments are usually successful in this first step. 2. The court then conducts a proportionality analysis using three sub-tests.
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